Owens v. Hill

• Decision Date: 19 May 2014
• Docket Number: No. S14A0092.,S14A0092.
• Citation: 295 Ga. 302,758 S.E.2d 794
• Court: Georgia Supreme Court
• Parties: OWENS et al. v. HILL.

295 Ga. 302

758 S.E.2d 794

OWENS et al.

v.HILL.

No. S14A0092.

Supreme Court of Georgia.

May 19, 2014.

Patricia B. Attaway Burton, Dep. Atty. Gen., Joseph J. Drolet, Senior Asst. Atty., Sabrina Dawn Graham, Asst. Atty., Gen., Mitchell Philip Watkins, Samuel S. Olens, Atty. Gen., Department of Law, Atlanta, for appellant.

Robyn Andree Painter, Brian Kammer, Georgia Resource Center, Manoj Sam Varghese, Bondurant, Mixson & Elmore, LLP, Atlanta, for appellee.

HINES, Presiding Justice.

This case presents the question of whether it is unconstitutional for the State of Georgia to maintain the confidentiality of the names and other identifying information of the persons and entities involved in executions, including those who manufacture the drug or drugs to be used.¹ We hold that it is not, and we reverse the ruling of the Superior Court of Fulton County in which it granted an interlocutory injunction prohibiting the execution of Warren Lee Hill with a drug from a confidential source in order to consider that question.

Hill was convicted of murdering a fellow inmate in the Lee County Correctional Institute by beating him to death with a sink leg embedded with nails. The jury sentenced him to death, and this Court affirmed. See Hill v. State, 263 Ga. 37, 427 S.E.2d 770 (1993). Hill has been unsuccessful in his multiple state and federal habeas proceedings. See Turpin v. Hill, 269 Ga. 302, 498 S.E.2d 52 (1998) (state habeas appeal); Head v. Hill, 277 Ga. 255, 587 S.E.2d 613 (2003) (state habeas appeal); Hill v. Schofield, 608 F.3d 1272 (11th Cir.2010) (federal habeas appeal in which a three-judge panel vacated Hill's death sentence); Hill v. Schofield, 625 F.3d 1313 (11th Cir.2010) (vacating the decision of the three-judge panel and ordering a rehearing en banc); Hill v. Humphrey, 662 F.3d 1335 (11th Cir.2011) (denying federal habeas relief on rehearing en banc), cert. denied, ––– U.S. ––––, 132 S.Ct. 2727, 183 L.E.2d 80 (2012); In re Hill, 715 F.3d 284 (11th Cir.2013) (denying Hill's request for permission to file a second federal habeas petition); Hill v. Humphrey, ––– U.S. ––––, 133 S.Ct. 1324, 185 L.Ed.2d 233 (2013) (denying a petition for a writ of certiorari arising out of second state habeas proceedings); Hill v. Humphrey, –––U.S. ––––, 134 S.Ct. 115, 187 L.Ed.2d 84 (2013) (denying petition for a writ of certiorari arising out of third state habeas proceedings); In re Hill, –––U.S. ––––, 134 S.Ct. 118, 187 L.Ed.2d 265 (2013) (denying an original petition for a writ of certiorari). Hill's case has also been before this Court two times previously on issues related to the execution method in Georgia. See Hill v. Owens, 292 Ga. 380, 738 S.E.2d 56 (2013) (addressing the relationship of Georgia's Administrative Procedure Act to the selection of lethal injection drugs and dissolving a stay of execution previously issued by this Court); Cook v. Owens, Case No. S13W0834 (Feb. 21, 2013) (unpublished decision denying an application for discretionary appeal by Hill and others regarding the denial of an injunction against the prison pharmacy).

The sentencing court issued Hill's latest execution order on July 3, 2013, setting Hill's execution for the one-week period of July 13–20, 2013. See OCGA § 17–10–40 (providing for renewed execution orders). That execution order was filed after the July 1, 2013, effective date of a new law designating “identifying information” concerning the persons and entities that participate in executions, including those who participate in the procurement of execution drugs, to be a “confidential state secret.” OCGA § 42–5–36(d)(2).² Hill filed suit in the Superior Court of Fulton County, naming the Commissioner of Corrections and others as defendants (hereinafter “the State”) and seeking an interlocutory injunction, a permanent injunction, a declaratory judgment, a writ of mandamus, and “[s]ealed discovery of the identity of the compounding pharmacy and the supply chain and manufacturer(s) of any and all ingredients used to produce the lethal drug compound to be injected into Warren Hill.” Hill alleged that the execution-participant confidentiality statute was unconstitutional on various grounds in that it wrongly denied him information revealing “the identities of the manufacturer, individuals or entities in the chain of supply, prescriber, compounding pharmacy, or pharmacist responsible for making the drugs available to the Department of Corrections for Mr. Hill's execution.” Hill's complaint also stated that it was seeking “to enforce the prohibitions against cruel and unusual punishment under Georgia and Federal Law.”

The Superior Court granted injunctive relief, which it described in various ways including as a stay of execution,³ ruling that Hill had shown that there was a substantial likelihood of his success on several of his constitutional challenges to the statute. This Court granted the State's application for discretionary appeal ⁴ regarding the Superior Court's granting of injunctive relief and ordered the parties to address the following questions on appeal:

(1) Is this case moot due to the expiration of the compounded pentobarbital at issue and uncertainty as to whether and where the State will obtain pentobarbital to use if another execution date is scheduled for Hill?

(2) Considering that the Superior Court of Fulton County has neither appellate nor habeas jurisdiction to review the order of execution entered by the sentencing court, did it properly have jurisdictionto stay the order of execution entered by the sentencing court?

(3) Should questions about the constitutionality of OCGA § 42–5–36(d) be avoided in light of the availability of other forms of discovery to Hill, by which Hill might, for instance, obtain production of a sample of the actual compounded pentobarbital to be used in his execution?

(4) Did the Superior Court of Fulton County err by granting a stay of Hill's execution based on his challenge to the constitutionality of OCGA § 42–5–36(d)?

For the reasons set forth below, we conclude that this case is not moot, that the Superior Court had limited but valid jurisdiction over this matter, that the possible availability of forms of discovery beyond what is forbidden by the execution-participant confidentiality statute does not affect this case, that the execution-participant confidentiality statute is not unconstitutional, and that the Superior Court erred by granting what amounted to an interlocutory injunction. Accordingly, we reverse the Superior Court's ruling and dissolve the injunction that prohibited Hill's execution with a drug produced by undisclosed persons and entities.

1. The injunctive relief granted in this case enjoins the use of a specific batch of drugs from a specific, although undisclosed, compounding pharmacy. Because that batch of drugs has now expired and cannot be used in an execution, it is arguable that the question of the appropriateness of the injunctive relief has become moot. However, the parties agree that if this case were dismissed as moot the State would once again obtain an execution drug and refuse to disclose its source, which the Superior Court would presumably enjoin the use of on the same grounds and which would expire before this Court were able to resolve the matter on appeal. Thus, this case presents a classic example of a matter that is capable of repetition yet evading review. See Babies Right Start v. Ga. Dept. of Pub. Health, 293 Ga. 553, 556(2)(c), 748 S.E.2d 404 (2013) (noting the “well-established but narrow exception to mootness for disputes that are ‘capable of repetition, yet evading review’ ” (quoting Fed. Election Comm. v. Wisconsin Right to Life, Inc., 551 U.S. 449, 462(II), 127 S.Ct. 2652, 168 L.Ed.2d 329 (2007))). Accordingly, we will not dismiss this case as moot.

2. The execution order in this case was filed by the sentencing court, the court that conducted Hill's criminal trial. See OCGA § 17–10–40 (providing for renewed execution orders). The sentencing court's execution order in Hill's case contained nothing that dictated what drug or drugs should be used in his execution. In fact, it would have been inappropriate for the sentencing court's execution order to contain such details about the method of execution, because Georgia law specifically delegates the task of deciding such details to the Department of Corrections. See OCGA § 17–10–44 (“The Department of Corrections shall provide a place for execution of the death sentence and all necessary apparatus, machinery, and appliances for inflicting the penalty of death.”); Hill, 292 Ga. at 387(2)(b), 738 S.E.2d 56 (“The Code imposes on the Commissioner and the Department a variety of duties specific to managing executions, among which choosing the drug or drugs is just one.”). The issues of what drug or drugs will be used in Hill's execution, what person or entities are involved in procuring the drug or drugs, and how information about the drug or drugs is managed do not concern the validity of Hill's death sentence; instead, they concern merely how his death sentence will be carried out. Thus, Hill properly brought his claims regarding the procurement of the drug to be used in his execution and a possible injunction prohibiting the use of that particular drug against the state officers involved in those matters rather than making some sort of motion in the sentencing court maintaining jurisdiction over his sentence of death. Furthermore, venue was proper in the superior court of the county where those state officers were located, which was Fulton County. See OCGA § 9–10–30 (“All actions seeking equitable relief shall be filed in the county of the residence of one of the defendants against whom substantial relief is prayed....”).⁵

Our reasoning here applies in a similar fashion to the question of whether this matter should have been raised in a habeas petition in the county where Hill is imprisoned. A challenge concerning the specific...