Arkansas Dep't of Corr. v. Williams

• Decision Date: 10 December 2009
• Docket Number: No. 08–1031.,08–1031.
• Citation: 2009 Ark. 523,357 S.W.3d 867
• Parties: ARKANSAS DEPARTMENT OF CORRECTION, Appellant, v. Frank WILLIAMS, Jr., Appellee.
• Court: Arkansas Supreme Court

2009 Ark. 523

357 S.W.3d 867

ARKANSAS DEPARTMENT OF CORRECTION, Appellant,

v.Frank WILLIAMS, Jr., Appellee.

No. 08–1031.

Supreme Court of Arkansas.

Oct. 29, 2009.Rehearing Denied Dec. 10, 2009.

Dustin McDaniel, Att'y Gen., by: C. Joseph Cordi, Jr., Ass't Att'y Gen., for appellant.

Jennifer Horan Federal Public Defender, by: Julie Brain and Josh Lee, Ass't Federal Defender, for appellee.

JIM GUNTER, Justice.

The Arkansas Department of Correction (ADC) appeals the grant of summary judgment in favor of Williams, which effectively stayed Williams's execution, and the denial of its own motion for summary judgment. ADC asks this court to hold that Act 1296, passed April 9, 2009, has rendered Williams's action moot, and to therefore dismiss the suit and lift the injunction on Williams's execution. In the alternative, ADC asks this court to reverse the trial court's decision on the merits because (1) ADC has sovereign immunity, and (2) the administrative directive in question is not a “rule” as that term is defined in the Administrative Procedure Act (APA), therefore the APA is not applicable. Because this appeal involves a substantial question of law concerning the validity, construction, or interpretation of an act of the General Assembly, this court has jurisdiction pursuant to Ark. Sup.Ct. R. 1–2(b)(6). We agree that Act 1296 has rendered the basis for the trial court's grant of summary judgment moot; therefore, we reverse the grant of summary judgment and remand.

Williams was accused of killing Clyde Spence, his former employer, on the night of October 7, 1992, after Spence had fired Williams earlier that day. Williams was found guilty of capital murder and sentenced to death, and this court affirmed his conviction and sentence in an opinion issued July 10, 1995. See Williams v. State, 321 Ark. 344, 902 S.W.2d 767 (1995). In 2006, the United States Court of Appeals for the Eighth Circuit affirmed the denial of habeas petitions filed by Williams. See Williams v. Norris, 461 F.3d 999 (8th Cir.2006).

On May 6, 2008, Williams filed a complaint for declaratory judgment in the Pulaski County Circuit Court, alleging that the administrative directive (AD) promulgated by the ADC, which governs the procedure for executions, was adopted in violation of the APA; that the AD violated Ark.Code Ann. § 5–4–617(a)(1) (Repl.2006) by allowing a lethal injection cocktail made up of three drugs, rather than the statutorily prescribed two; and that the AD violated § 5–4–617(a)(1) by establishing a lethal injection procedure that is not “continuous.” ¹ On May 23, 2008, ADC filed a motion to dismiss Williams's complaint, asserting sovereign immunity or, in the alternative, arguing that Williams had failed to state a claim upon which relief can be granted because (1) the lethal injection protocol is not a “rule” as that term is defined in the APA; (2) the lethal injection protocol is fully consistent with Ark.Code Ann. § 5–4–617. On June 10, 2008, ADC's motion to dismiss was denied.

On June 20, 2008, ADC simultaneously filed an answer to Williams's complaint and a motion for summary judgment and brief in support. In its motion for summary judgment, ADC asserted essentially the same arguments presented in its motion to dismiss: that the AD, which it identified as AD 08–28, was not a “rule” as defined by the APA, and therefore the APA's rulemaking procedures were not applicable; and that AD 08–28 did not violate § 5–4–617. Williams filed a response to ADC's motion for summary judgment on July 14, 2008, as well as a cross-motion for summary judgment on Count I of his complaint, namely the alleged violation of the APA.

After receiving ADC's response to the cross-motion for summary judgment on August 7, 2008, the trial court issued an order on August 28, 2008, granting Williams's cross-motion for summary judgment on Count I. The order stated: “The plaintiff is awarded partial declaratory summary judgment that AD 08–28 is subject to the Administrative Procedures Act and that as of the present date it is not valid and may not be invoked by the defendant for any purpose against the plaintiff.” Also on August 28, 2008, the trial court entered an order denying ADC's motion for summary judgment with respect to the allegation that AD 08–28 was not subject to the APA and finding that the court's order concerning Williams's cross-motion for summary judgment rendered moot the remaining portions of ADC's motion for summary judgment. From these orders, ADC filed a notice of appeal on August 29, 2008.

During the 2009 legislative session, Act 1296, entitled “An Act to Clarify the Existing Procedures for Capital Punishment by Lethal Injection; and For Other Purposes,” was approved by the governor and became effective April 13, 2009. Act 1296 amended Ark.Code Ann. § 5–4–617 to provide, in pertinent part, that (1) the policies and procedures for carrying out the sentence of death under this statute are not subject to the APA, and (2) the sentence of death is to be carried out by “intravenous lethal injection of one (1) or more chemicals” to be determined by the Director of the Department of Correction. The Act also omitted any requirement that the injection be “continuous.”

Pursuant to these changes, ADC filed a motion to dismiss Williams's lawsuit on April 21, 2009, asserting that Williams's arguments had been rendered moot by the amendments to the statute. ADC requested that this court lift the trial court's orders and the injunction against executing Williams pursuant to AD 08–28 or, in the alternative, that the case be remanded with instructions for the trial court to enter an order setting aside its previous orders and lifting the injunction against the execution. Williams responded on May 1, 2009, arguing that the appeal was not rendered moot by the amendments to the statute and that a live controversy still existed because an injunction was still in place. In a per curiam delivered May 14, 2009, this court held ADC's motion in abeyance and ordered supplemental briefing on whether the enactment of Act 1296 rendered the instant appeal moot; whether Act 1296 may be applied to Williams's sentence and execution; and whether, if the appeal is moot, this court must further decide whether to vacate the trial court's injunction. The instant appeal, including this supplemental issue, is now properly before this court for review.

We first address whether Williams's complaint has been rendered moot by the passage of Act 1296 of 2009. ADC asserts that, following the passage of Act 1296, all controversies regarding the previous version of the statute no longer exist, and Williams's arguments have been rendered moot. As a general rule, appellate courts of this state will not review issues that are moot. Warren Wholesale Co. v. McLane Co., 374 Ark. 171, 286 S.W.3d 709 (2008). To do so would be to render advisory opinions, which this court will not do. Id. A case becomes moot when any judgment rendered would have no practical legal effect upon a then-existing legal controversy. Id.

To support its argument, ADC cites several of this court's opinions, including Allison v. Lee County Election Commission, 359 Ark. 388, 198 S.W.3d 113 (2004), and Warren Wholesale, supra. In Allison, this court held that a candidate's appeal, challenging the statute that provides filing deadlines for certain candidates, was moot, in part because the election the candidate wished to challenge had occurred two years previously, but also because the challenged statute had been amended, and

[a]ny opinion this court would give on the old version of the law would simply be an advisory opinion, a practice in which this court will not engage.... Even if this court were to address the trial court's interpretation ... such an opinion would not prevent future litigation because any challenge to [the statute] in the future will involve the amended version of the statute passed in 2003.

359 Ark. at 391, 198 S.W.3d at 115. Similarly, in Warren Wholesale, a challenge to the validity of a certain rule of the Tobacco Control Board was rendered moot when the challenged rule was repealed while the appeal was pending, and this court specifically held that the principles of mootness apply equally to an agency regulation that is repealed while the appeal challenging the regulation is pending. Consequently, there was no longer a controversy between the parties, the appeal was moot, and the case was remanded for “entry of a decree stating that the grounds upon which the trial court relied for entering the declaratory judgment and injunction have become moot by the repeal of the challenged section.” 374 Ark. at 176, 286 S.W.3d at 712. See also Lewis v. Continental Bank Corp., 494 U.S. 472, 110 S.Ct. 1249, 108 L.Ed.2d 400 (1990) (holding that controversy involving banking regulations was rendered moot by 1987 amendments to Bank Holding Company Act); United States v. Alaska S.S. Co., 253 U.S. 113, 116, 40 S.Ct. 448, 64 L.Ed. 808 (1920) (“Where by an act of the parties, or a subsequent law, the existing controversy has come to an end, the case becomes moot and should be treated accordingly.”); Langford v. Day, 134 F.3d 1381 (9th Cir.1998) (holding that an inmate's challenge to execution by hanging was moot once the Montana legislature abolished hanging as a method of execution).

Williams responds by arguing that his appeal is not moot because there is still a valid injunction in place forbidding ADC from putting Williams to death using their lethal injection protocol, and only if this court rules in ADC's favor on the merits of the appeal can ADC obtain the relief that it seeks. Therefore, Williams argues, this is not a case in which any judgment rendered would have no practical legal effect upon a...