Phillips v. DeWine

• Decision Date: 02 November 2016
• Docket Number: No. 15-3238,15-3238
• Parties: Ronald Phillips; Raymond Tibbetts; Robert J. Van Hook, Plaintiffs–Appellants, v. Mike DeWine, Attorney General of the State of Ohio; John R. Kasich, Governor of the State of Ohio; Donald Morgan, Warden of the Southern Ohio Correctional Facility; Gary C. Mohr, Director of the Ohio Department of Rehabilitation and Corrections, Defendants–Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

841 F.3d 405

Ronald Phillips; Raymond Tibbetts; Robert J. Van Hook, Plaintiffs–Appellants,

v.Mike DeWine, Attorney General of the State of Ohio; John R. Kasich, Governor of the State of Ohio; Donald Morgan, Warden of the Southern Ohio Correctional Facility; Gary C. Mohr, Director of the Ohio Department of Rehabilitation and Corrections, Defendants–Appellees.

No. 15-3238

United States Court of Appeals, Sixth Circuit.

Argued: April 19, 2016

Decided and Filed: November 2, 2016

ARGUED: Timothy F. Sweeney, LAW OFFICE OF TIMOTHY F. SWEENEY, Cleveland, Ohio, for Appellants. Tiffany L. Carwile, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellees. ON BRIEF: Timothy F. Sweeney, LAW OFFICE OF TIMOTHY F. SWEENEY, Cleveland, Ohio, David C. Stebbins, Allen L. Bohnert, Sharon Hicks, OFFICE OF THE FEDERAL PUBLIC DEFENDER FOR THE SOUTHERN DISTRICT OF OHIO, Columbus, Ohio, Lisa M. Lagos, OFFICE OF THE OHIO PUBLIC DEFENDER, Columbus, Ohio, for Appellants. Tiffany L. Carwile, Bridget E. Coontz, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellees.

Before: NORRIS, SILER, and STRANCH, Circuit Judges.

SILER

, J., delivered the opinion of the court in which NORRIS, J., joined. STRANCH, J. (pp. 420–33), delivered a separate dissenting opinion.

OPINION

SILER

, Circuit Judge.

In this appeal, a group of inmates sentenced to death in Ohio challenge the constitutionality of the State's newly enacted statutory scheme concerning the confidentiality of information related to lethal injection. The district court dismissed some of their claims for a lack of standing and the remainder for failure to state a claim. For the reasons stated below, we AFFIRM .

I.

In December 2014, the Ohio General Assembly passed Substitute House Bill No. 663 (“HB 663”) to address the confidentiality of information related to lethal injection in Ohio. HB 663 contains four provisions relevant to this appeal. First, under HB 663, the identity of individuals and entities that participate in the lethal injection process is treated as confidential and privileged under law; cannot be disclosed as a public record; and is not subject to disclosure during judicial proceedings, except in limited circumstances (the “Confidentiality Provision”). Ohio Rev. Code §§ 149.43(A)(1)(cc)

, 2949.221(B) –(C).¹

Second, HB 663 directs courts to seal records that contain information related to the identity of an individual or entity that participates in the lethal injection process unless “the court determines that the record is necessary for just adjudication” (the “Record–Sealing Provision”). Id. § 2949.222. If the court makes such a determination, it must hold a private hearing to review the record, and the record is subject to further disclosure only if, “through clear and convincing evidence presented in the private hearing, [the court] finds that the person whose identity is protected appears to have acted unlawfully with respect to the person's involvement in the administration of a lethal injection.” Id. § 2949.222(C).² Third, HB 663 prevents licensing authorities from taking disciplinary action against an individual or entity based on participation in the lethal injection process (the “Licensure–Immunity Provision”). Id. § 2949.221(E)

.³ And fourth, HB 663 permits an individual or entity who has participated in the lethal injection process to bring “a civil cause of action against any person who discloses the identity and participation in the activity in violation of this division” (the “Civil–Action Provision”). Id. § 2949.221(F).⁴

Shortly after HB 663 was passed, Ronald Phillips, Raymond Tibbetts, and Robert Van Hook, prisoners sentenced to death in Ohio (the “Plaintiffs”), filed an action in federal court against Ohio Governor John Kasich, Ohio Attorney General Mike DeWine, Director of the Ohio Department of Rehabilitation and Correction Gary Mohr, and Warden of the Southern Ohio Correctional Facility Donald Morgan (the “Defendants”), challenging HB 663's constitutionality.⁵ The Plaintiffs brought several claims: (1) a claim that HB 663 unconstitutionally burdens speech (the “Free–Speech Claim”); (2) a claim that HB 663 creates a regime of unconstitutional prior restraint (the “Prior–Restraint Claim”); (3) claims that HB 663 violates the Plaintiffs' equal-protection and due-process rights, as well as their right of access to the courts (the “Equal–Protection, Due–Process, and Right–of–Court–Access Claims”); and (4) a claim that HB 663 denies the Plaintiffs constitutionally protected access to government proceedings (the “Right–of–Access–to–Government–Proceedings Claim”).

Mohr and Morgan moved to dismiss the claims against them for lack of subject-matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1)

and for failure to state a claim upon which relief can be granted under Rule 12(b)(6). They argued that the Plaintiffs lacked standing to challenge the Licensure–Immunity Provision and the Civil–Action Provision. In addition, Mohr and Morgan asserted that HB 663's provisions do not suppress the Plaintiffs' speech because they only “limit the information that the State will provide to the public,” and that HB 663 is not an unconstitutional prior restraint because it simply “mak[es] information confidential” and “does nothing to restrain the exercise of a First Amendment right.” Mohr and Morgan also claimed that the Plaintiffs failed to state an equal-protection, due-process, access-to-the-courts, or access-to-government-proceedings claim. Governor Kasich and DeWine moved to dismiss under Federal Rule of Civil Procedure 12(b)(1)

for lack of subject-matter jurisdiction, claiming that the Eleventh Amendment barred the Plaintiffs' claims against them. They also joined in the arguments raised in Mohr's and Morgan's motion to dismiss.

The district court granted the Defendants' motions to dismiss. Phillips v. DeWine , 92 F.Supp.3d 702, 705, 718 (S.D. Ohio 2015)

. After assuming for the sake of argument that the Eleventh Amendment did not bar the claims against Governor Kasich and DeWine, the court found that the Plaintiffs lacked standing to challenge the Licensure–Immunity Provision and the Civil–Action Provision. Id. at 709–12. It reasoned that the Plaintiffs suffered only “conjectural or hypothetical injuries” rather than the “requisite distinct and palpable injury” required under Article III. Id. at 711.

In addition, the district court found that the Plaintiffs' remaining claims were not plausible. The court read HB 663 as “simply cut[ting] off the [Ohio] government as the source of ... information” regarding Ohio's execution procedures and “plac[ing] a government worker on the hook for acting as a source.” Id. at 713

. Accordingly, the court found, the statute did not create an unconstitutional prior restraint. Id. at 713–14. The court also concluded that the Plaintiffs had no constitutional right to the information they claimed they were being deprived of and that their First, Fifth, and Fourteenth Amendments claims failed because they were premised on such a right. Id. at 714–16. Therefore, the district court dismissed the case. Id. at 718.⁶ It also denied the Plaintiffs' pending motions for a preliminary injunction and for expedited discovery as moot.

II.

We review dismissals for lack of subject-matter jurisdiction, including those for lack of standing, de novo. Parsons v. U.S. Dep't of Justice , 801 F.3d 701, 709 (6th Cir. 2015)

(citing Miller v. Cincinnati , 622 F.3d 524, 531 (6th Cir. 2010) ). To the extent we must reach a disputed issue of fact that the district court resolved, however, we review for clear error. See

Askins v. Ohio Dep't of Agric. , 809 F.3d 868, 872 (6th Cir. 2016). Otherwise, we construe the complaint in the light most favorable to the Plaintiffs and accept all well-pleaded factual allegations as true. Barber v. Miller , 809 F.3d 840, 843 (6th Cir. 2015) (citing Thompson v. Bank of Am., N.A. , 773 F.3d 741, 750 (6th Cir. 2014) ).

Likewise, we review de novo a grant of a motion to dismiss under Rule 12(b)(6)

for failure to state a claim upon which relief can be granted. Stein v. Regions Morgan Keegan Select High Income Fund, Inc. , 821 F.3d 780, 785 (6th Cir. 2016) (citing Cataldo v. U.S. Steel Corp. , 676 F.3d 542, 547 (6th Cir. 2012) ). Again, we construe the complaint in the light most favorable to the Plaintiffs and accept all well-pleaded factual allegations as true.

Id.

(citing Laborers' Local 265 Pension Fund v. iShares Tr. , 769 F.3d 399, 403 (6th Cir. 2014) ). To withstand a 12(b)(6) motion, “the complaint must contain ‘enough facts to state a claim to relief that is plausible on its face.’ ” Long v. Insight Commc'ns of Cent. Ohio, LLC , 804 F.3d 791, 794 (6th Cir. 2015) (quoting Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ).

Notwithstanding the district court's reasoning, we may affirm its dismissal of the case “on any ground supported by the record.” Haines v. Fed. Motor Carrier Safety Admin. , 814 F.3d 417, 423 (6th Cir. 2016)

(quoting Bangura v. Hansen , 434 F.3d 487, 498 n.3 (6th Cir. 2006) ).

III.

A.

At the outset, we must determine whether the Plaintiffs have standing, and, if so, for which of their claims. See Murray v. U.S. Dep't of Treasury , 681 F.3d 744, 748 (6th Cir. 2012)

. Article III, Section 2 of the Constitution provides that federal courts may hear and resolve only “Cases” and “Controversies.” As a result, “a plaintiff must demonstrate standing for each claim he seeks to press.” Davis v. Fed. Election Comm'n , 554 U.S. 724, 734, 128 S.Ct. 2759, 171 L.Ed.2d 737 (2008) (quoting DaimlerChrysler Corp. v. Cuno , 547 U.S. 332, 335, 126 S.Ct. 1854, 164 L.Ed.2d 589 (2006) ). To have standing, a plaintiff must establish (1) an “injury in fact,” meaning “an invasion of a legally protected interest [that] is (a) concrete and particularized and (b) ‘actual or imminent, not “conjectural” or “hypothetical” ’ ”; (2) “a causal connection between the injury and the conduct...