Ward v. Carter

• Decision Date: 13 February 2018
• Docket Number: No. 46S03–1709–PL–00569,46S03–1709–PL–00569
• Citation: 90 N.E.3d 660
• Parties: Roy Lee WARD, Appellant (Plaintiff below), v. Robert E. CARTER, Jr., Commissioner of the Indiana Department of Correction, and Ron Neal, Superintendent of the Indiana State Prison, in Their Official Capacities. Appellees (Defendants below).
• Court: Indiana Supreme Court

90 N.E.3d 660

Roy Lee WARD, Appellant (Plaintiff below),
v.
Robert E. CARTER, Jr., Commissioner of the Indiana Department of Correction, and Ron Neal, Superintendent of the Indiana State Prison, in Their Official Capacities. Appellees (Defendants below).

No. 46S03–1709–PL–00569

Supreme Court of Indiana.

FILED February 13, 2018

Attorneys for Appellant : David W. Frank, Christopher C. Myers & Associates, Fort Wayne, Indiana

Attorneys for Appellee : Curtis T. Hill, Jr., Attorney General of Indiana, Stephen R. Creason, Chief Counsel, Indianapolis, IN

On Petition to Transfer from the Indiana Court of Appeals, No. 46A03–1607–PL–1685

Goff, Justice.

90 N.E.3d 661

Plaintiff challenges the Department of Correction's change to Indiana's lethal injection protocol, arguing the combination of drugs used in executions is a substantive rule that must be promulgated pursuant to the Administrative Rules and Procedures Act. We disagree. Because the Department's decision to add Brevital to the lethal injection cocktail does not carry the effect of law—that is, the change does not impose standards regulating Ward's conduct—we hold the new three-drug protocol is not a rule and, therefore, not subject to the Administrative Rules and Procedures Act.

Factual and Procedural History

Plaintiff, Roy Ward, sits condemned on Indiana's "death row" at Indiana State Prison in LaPorte County. Ward was sentenced to death by execution in 2007 for a 2001 rape and murder. See Ward v. State, 903 N.E.2d 946, aff'd on reh'g, 908 N.E.2d 595 (Ind. 2009), cert. denied, 559 U.S. 1038, 130 S.Ct. 2060, 176 L.Ed.2d 417 (2010). The Indiana Code commands that "[t]he punishment of death shall be inflicted by intravenous injection of a lethal substance or substances into the convicted person." Ind. Code § 35–38–6–1(a) (2014 Repl.). The Code tasks the Indiana Department of Correction (the Department) with housing death-row offenders and administering executions by lethal injection. See I.C. chapter 35–38–6.

In May 2014, the Department announced a change to the lethal injection protocol. Specifically, the Department said it would alter the three-drug combination used for executions, replacing Sodium Thiopental with Brevital—a barbiturate anesthetic in the same class. Following that announcement, Indiana's three-drug execution protocol included Brevital, followed by Pancuronium Bromide and then Potassium Chloride.

On December 22, 2015, Ward filed a complaint in the LaPorte Circuit Court, naming as defendants Bruce Lemmon, then-Commissioner of the Department, and Ron Neal, the Superintendent of the Indiana State Prison.¹ The complaint alleged the Department's change to the lethal injection protocol violated Ward's rights under Indiana's Administrative Rules and Procedures Act (ARPA) along with his due course of law and due process rights under the Indiana and United States constitutions. All Ward's claims hinged upon his contention that the Department's new three-drug cocktail amounted to an administrative "rule" that must be adopted and promulgated pursuant to ARPA.

The Defendants moved to dismiss Ward's complaint under Trial Rule 12(B)(6), arguing it failed to state a claim upon which relief could be granted. Following a hearing, the trial court granted the State's motion. It concluded: "Defendants were not required to go through ARPA as changing a drug in the lethal injection protocol is considered an internal policy and not rule promulgation."

Ward appealed, and the Court of Appeals reversed the trial court's order dismissing

90 N.E.3d 662

the complaint. Ward v. Carter, 79 N.E.3d 383 (Ind. Ct. App. 2017). The Court of Appeals holding proved twofold. First, in response to a newly raised argument from the Defendants, the court held the Department must follow ARPA when promulgating rules. Id. at 387. Second, it held the Department's execution protocol constituted a "rule" and since the Department failed to follow ARPA's requirements when adding Brevital to the three-drug combination, "the changed protocol is void and without effect." Id. at 388.

The Defendants then sought transfer, which we granted, thereby vacating the Court of Appeals opinion. See Ind. Appellate Rule 58(A). The central issue presented in this case concerns whether the Department's lethal injection protocol constitutes a "rule" for ARPA purposes. Ward contends the protocol is a rule and, therefore, must go through ARPA's notice-and-comment rulemaking requirements. On the other hand, the Defendants maintain the lethal injection protocol is an internal Department policy exempt from ARPA's strictures. For the reasons set forth below, we agree with the Defendants and affirm the trial court.

Standard of Review

Since a 12(B)(6) motion to dismiss for failure to state a claim challenges only the legal sufficiency of the complaint, it presents a legal question that we review de novo. Thornton v. State, 43 N.E.3d 585, 587 (Ind. 2015). We may affirm a dismissal under 12(B)(6) "if it is sustainable on any basis in the record." Id.

Discussion and Decision

I. Administrative rules carry the effect of law, which means they prescribe binding standards of conduct on a regulated person.

ARPA governs agency rulemaking—i.e., adding, amending, or repealing administrative rules. Ind. Code § 4–22–2–13(a) (2012 Repl.). ARPA, however, does not apply to "[a] resolution or directive of any agency that relates solely to internal policy, internal agency organization, or internal procedure and does not have the effect of law." Id. at § 4–22–2–13(c)(1). The parties debate whether the Department's lethal injection protocol—specifically, the drug combinations used in executions—constitutes a rule or internal policy or procedure under the ARPA statute.

ARPA defines "rule" accordingly:

(b) "Rule" means the whole or any part of an agency statement of general applicability that:

(1) has or is designed to have the effect of law; and

(2) implements, interprets or prescribes:

(A) law or policy; or

(B) the organization, procedure, or practice requirements of an agency.

Id. at § 4–22–2–3(b). Case law defines an administrative "rule" similarly, laying out four elements: (1) "an agency statement of general applicability to a class;" (2) that is "applied prospectively to the class;" (3) that is "applied as though it has the effect of law;" and (4) that "affect[s] the substantive rights of the class." Villegas v. Silverman, 832 N.E.2d 598, 609 (Ind. Ct. App. 2005) (citing Blinzinger v. Americana Healthcare Corp., 466 N.E.2d 1371, 1375 (Ind. Ct. App. 1984) ). We observe straightaway that both definitions share the "effect of law" element. What's more, we see the "effect of law" requirement distinguishes agency rules from internal policies or procedures. Compare I.C. § 4–22–2–3(b)(1) (instructing administrative rules carry the effect of law), with I.C. § 4–22–2–13(c)(1) (instructing that internal

90 N.E.3d 663

agency policies and procedures do not). Taken together, Indiana law instructs that agency rules must carry the "effect of law"—a term left largely undefined in our jurisprudence.

A. To date, Indiana law provides an incomplete explanation for "effect of law."

We first acknowledge that this Court's case law addressing the "effect of law" has been limited to cases involving the reach of our court rules. For example, over the past century, we routinely instructed that courts have power to adopt rules that "have the force and effect of law , and are obligatory upon the court, as well as upon the parties to causes pending before it." Magnuson v. Billings, 152 Ind. 177, 180, 52 N.E. 803, 803–04 (1899) (emphasis added). See also Rout v. Ninde, 111 Ind. 597, 598, 13 N.E. 107, 107–08 (1887) ; State v. Van Cleave, 157 Ind. 608, 609, 62 N.E. 446, 447 (1902) ; Epstein v. State, 190 Ind. 693, 697, 128 N.E. 353, 353 (1920) ; State ex rel. Spelde v. Minker, 244 Ind. 421, 422, 193 N.E.2d 365, 365 (1963). While we have not expanded upon that principle, we recently rephrased it by stating court rules "have the force and effect of law ... and are binding on both the court and all litigants." In re Adoption of J.T.D., 21 N.E.3d 824, 831 (Ind. 2014) (internal citations and quotation marks omitted). Overall, these cases instruct that a court rule governs more than procedure—a rule having "the effect of law" necessarily touches individual substantive rights too. See id. (stating that when a rule carries...