O'Neal v. State

Decision Date19 October 2021
Docket Numbers. 2020-0676,2020-0683
Citation167 Ohio St.3d 234,192 N.E.3d 358
Parties O'NEAL, Appellant, et al. v. The STATE of Ohio et al., Appellees.
CourtOhio Supreme Court

Dave Yost, Attorney General, Benjamin M. Flowers, Solicitor General, Michael J. Hendershot, Chief Deputy Solicitor General, Charles A. Schneider, Criminal Justice Section Chief, and Brenda S. Leikala, Senior Assistant Attorney General, for appellees.

Timothy Young, Ohio Public Defender, and Richard A. Cline and Randall Porter, Assistant State Public Defenders; Dale A. Baich, Assistant Federal Public Defender; and Porter, Wright, Morris & Arthur, L.L.P., and L. Bradfield Hughes, for appellant Cleveland Jackson in case No. 2020-0676.

S. Adele Shank, Columbus and Lawrence J. Greger, Dayton, for appellant James D. O'Neal in case No. 2020-0683.

Fischer, J. {¶ 1} The Department of Rehabilitation and Correction ("DRC") is responsible for carrying out death sentences in Ohio. See R.C. 2949.22(A) and (B). In furtherance of its duty, DRC has adopted a written execution protocol: a document that sets forth the specific process by which DRC personnel are to carry out death sentences by lethal injection.

{¶ 2} In these appeals, two condemned inmates contend that DRC may adopt the execution protocol only by following the procedures for promulgating it as an administrative rule in accordance with R.C. 111.15(B) and that until this is done, the protocol is invalid and may not be used to carry out death sentences.

I. Facts and Procedural History

{¶ 3} Both appellants, Cleveland Jackson (case No. 2020-0676) and James D. O'Neal (case No. 2020-0683) (collectively, "the inmates"), have been convicted of aggravated murder and sentenced to death. See State v. Jackson , 107 Ohio St.3d 53, 2005-Ohio-5981, 836 N.E.2d 1173 ; State v. O'Neal , 87 Ohio St.3d 402, 721 N.E.2d 73 (2000). The appellees in both cases are the state of Ohio and DRC (collectively, "the state").

{¶ 4} DRC has maintained a written execution protocol since 1994. The protocol has gone through 20 versions; the current one, designated DRC policy 01-COM-11, took effect on October 7, 2016. See Ohio Department of Rehabilitation and Correction, https://drc.ohio.gov/LinkClick.aspx?fileticket=-r0rnCS3AGc% 3d&portalid=0 (accessed Aug. 3, 2021) [https://perma.cc/N8UU-C9EF]. In adopting 01-COM-11, DRC did not follow Ohio's procedures for formal rulemaking set forth in R.C. 111.15. Specifically, DRC "did not file the protocol with any State entity." O'Neal v. State , Franklin C.P. No. 18CVH-01-758, at 2 (Apr. 4, 2019).

{¶ 5} In 2018, O'Neal filed a complaint in the Franklin County Court of Common Pleas seeking an injunction halting his execution and a declaration that the protocol is invalid. The trial court subsequently permitted Jackson to intervene in the lawsuit. The inmates and the state filed motions for summary judgment; the trial court granted the state's motion, denied those of the inmates, and entered summary judgment in the state's favor. O'Neal , Franklin C.P. No. 18CVH-01-758, at 1. The court of appeals affirmed the trial court's judgment. 2020-Ohio-506, 146 N.E.3d 605.

{¶ 6} Jackson and O'Neal each filed discretionary appeals in this court. We granted review of Jackson's and O'Neal's first propositions of law. See O'Neal v. State , 160 Ohio St.3d 1418, 2020-Ohio-4811, 154 N.E.3d 97 ; O'Neal v. State , 160 Ohio St.3d 1418, 2020-Ohio-4811, 154 N.E.3d 98.

{¶ 7} Jackson's first proposition of law is: "Ohio's execution protocol 01-COM-11 governs the day-to-day staff procedures and operations by which DRC carries out a core statutory function—the execution of condemned persons—and thus is a ‘rule’ subject to R.C. 111.15." O'Neal's first proposition of law is: "DRC's execution protocol 01-COM-11 is subject to the rule-making requirements of R.C. 111.15 and is invalid for failing to comply with the statute."

II. Standing

{¶ 8} Before examining those issues, we will consider the state's challenge to the inmates’ standing.

{¶ 9} The state contends that the inmates lack standing to sue over the validity of DRC's execution protocol. Standing is a " ‘jurisdictional requirement’ that must be met for a party to maintain a lawsuit."

Ohioans for Concealed Carry, Inc. v. Columbus , 164 Ohio St.3d 291, 2020-Ohio-6724, 172 N.E.3d 935, ¶ 42, quoting State ex rel. Dallman v. Franklin Cty. Court of Common Pleas , 35 Ohio St.2d 176, 179, 298 N.E.2d 515 (1973).

{¶ 10} "[S]tanding depends on whether the plaintiffs have alleged such a personal stake in the outcome of the controversy that they are entitled to have a court hear their case." ProgressOhio.org, Inc. v. JobsOhio , 139 Ohio St.3d 520, 2014-Ohio-2382, 13 N.E.3d 1101, ¶ 7. Standing has three elements: injury, causation, and redressability. Moore v. Middletown , 133 Ohio St.3d 55, 2012-Ohio-3897, 975 N.E.2d 977, ¶ 22. Thus, to establish standing, the inmates must show that they suffered an injury that is fairly traceable to the state's allegedly illegal conduct and that their injury is likely to be redressed by the relief they are requesting. See id. The state contends that the inmates’ standing fails on the third element: redressability.

{¶ 11} As the inmates point out, they themselves are the objects of the injurious state action: their executions will be carried out under an assertedly invalid protocol. That makes their claim to standing a strong one.

When the suit is one challenging the legality of government action or inaction, the nature and extent of facts that must be averred (at the summary judgment stage) or proved (at the trial stage) in order to establish standing depends considerably upon whether the plaintiff is himself an object of the action (or forgone action) at issue. If he is, there is ordinarily little question that the action or inaction has caused him injury, and that a judgment preventing or requiring the action will redress it.

Lujan v. Defenders of Wildlife , 504 U.S. 555, 561-562, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992).

{¶ 12} However, the state points out that an alleged injury is not redressable when a ruling in the plaintiff's favor would leave the plaintiff subject to the same injury from which he seeks relief. See State ex rel. Walgate v. Kasich , 147 Ohio St.3d 1, 2016-Ohio-1176, 59 N.E.3d 1240, ¶ 27 (lead opinion) (holding that an injury was nonredressable because "[e]ven if the state's actions were nullified," the alleged injury "would continue to exist").

{¶ 13} The state contends that the injury alleged by the inmates is that they "do not want to be executed in the manner provided for by the protocol." According to the state, because DRC has statutory authority to carry out death sentences and no statute requires that it adopt an execution protocol, winning this case would not actually benefit the inmates. Hence, the state argues, if the execution protocol, 01-COM-11, is declared invalid, DRC could simply execute the inmates pursuant to its statutory authority "in precisely the same manner provided for by the protocol."

{¶ 14} But "standing turns on the nature and source of the claim asserted by the plaintiffs." Moore , 133 Ohio St.3d 55, 2012-Ohio-3897, 975 N.E.2d 977, at ¶ 23. And the state's argument, we think, misconceives the nature of the inmates’ claim.

{¶ 15} Contrary to the state's assertion, the injury alleged in this case is not that the inmates are to be executed in any particular fashion. It is alleged that they are to be executed in accordance with a protocol that is legally invalid because it was not promulgated as an administrative rule under R.C. 111.15(B). That alleged injury could be redressed by a declaration that the protocol is invalid.

{¶ 16} Although the state does not raise the point, we acknowledge that a declaratory-judgment action is not a proper means to litigate some of the challenges to the protocol's validity. Indeed, we have held: "There is no state postconviction relief or other state-law mode of action to litigate the issue of whether a specific lethal-injection protocol is constitutional under Baze v. Rees , 553 U.S. 35, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008), or under Ohio law."

Scott v. Houk , 127 Ohio St.3d 317, 2010-Ohio-5805, 939 N.E.2d 835, ¶ 4. But " Scott does not foreclose every possible avenue for raising a protocol challenge in Ohio courts." State v. Belton , 149 Ohio St.3d 165, 2016-Ohio-1581, 74 N.E.3d 319, ¶ 75. The instant case does not involve a state or federal constitutional challenge to the protocol, and Scott does not address whether a state-law cause of action, such as declaratory judgment, may be used to challenge an execution protocol on nonconstitutional grounds.

{¶ 17} In any event, the availability of declaratory judgment goes to the merits of the action; it does not affect the inmates’ standing. The fact remains that should the inmates obtain the judgment they seek, it will provide them with redress, which disposes of the state's redressability argument.

{¶ 18} We also reject the state's contention that because no Ohio statute requires DRC to adopt an execution protocol, it may execute condemned inmates without a protocol yet in the same manner that is specified in the protocol. This argument draws an empty distinction between the protocol and the procedures specified in the protocol. Those procedures are the protocol, and in following them, DRC would be following the protocol.

{¶ 19} In any event, DRC's execution procedures have been the subject of frequent Eighth Amendment litigation. In that litigation, federal courts have required DRC not only to have an execution protocol, but to follow it consistently. Indeed, federal courts have stayed scheduled executions because of DRC's failures to consistently follow its own protocol. See , e.g. , Reynolds v. Strickland , 583 F.3d 956, 957 (6th Cir.2009) (staying execution in light of serious questions about "whether Ohio is fully and competently adhering to the Ohio lethal injection protocol"); In re Ohio Execution...

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