West v. Schofield

• Decision Date: 02 July 2015
• Citation: 468 S.W.3d 482
• Parties: Stephen Michael West et al. v. Derrick D. Schofield et al.
• Court: Tennessee Supreme Court

468 S.W.3d 482

Stephen Michael West et al.

v.Derrick D. Schofield et al.

Supreme Court of Tennessee, AT NASHVILLE.

May 6, 2015 Session Heard at Knoxville

Filed July 2, 2015

Appeal by Permission from the Chancery Court for Davidson County, No. 131627I; Claudia Bonnyman, Chancellor

Herbert H. Slatery III, Attorney General & Reporter; Andrée Blumstein , Solicitor General; Jennifer L. Smith, Deputy Attorney General; Linda D. Kirklen and Scott Sutherland, Assistant Attorneys General (at trial), for the appellants, Derrick Schofield, Wayne Carpenter, Tony Mays, Jason Woodall, Tony Parker, and John Doe Physicians, Pharmacists, Medical Examiners, Medical Personnel, and Executioners.

Stephen M. Kissinger and Susanne Bales, Assistant Federal Community Defenders, Knoxville, Tennessee, for the appellees, Stephen Michael West, Nicholas Todd Sutton, and David Earl Miller.

C. Gene Shiles, Jr., and William J. Rieder, Chattanooga, Tennessee, for the appellee, Billy Ray Irick.

Kelley J. Henry, Supervisory Assistant Federal Public Defender, and Michael J. Passino, Assistant Federal Public Defender, Nashville, Tennessee, for the appellees, Abu–Ali Abdur'Rahman, Donald R. Johnson, Donald Wayne Strouth, Charles Walton Wright, and Edmund George Zagorski.

Kelly A. Gleasonand Jonathan King, Assistant Post-Conviction Defenders, Nashville, Tennessee, for the appellee, Lee Hall, Jr.

Robert C. Goodrich, Jr.and J. Patrick Warfield, Nashville, Tennessee, for the amici curiae, Edward Michael Bearman, C. Dewey Branstetter, Jr., L. Webb Campbell, II, Donald Capparella, David M. Eldridge, Claiborne H. Ferguson, Jason Gichner, Robert C. Goodrich, Jr., Daniel A. Horwitz, William Howell, Stephen Ross Johnson, William Leader, Bradley A. MacLean, Cynthia W. MacLean, H. E. Miller, Jr., John G. Oliva, Edgar Rothschild, Gregory D. Smith, Christopher Slobogin, Matthew Sweeney, James G. Thomas, and J. Patrick Warfield.

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CORNELIA A. CLARK, J., delivered the opinion of the Court, in which SHARON G. LEE, C.J., and GARY R. WADE, JEFFREY S. BIVINS, and HOLLY KIRBY, JJ., joined.

OPINION

CORNELIA A. CLARK, J.

We granted this extraordinary appeal to determine whether, in this declaratory judgment action, the death-sentenced inmates' claims challenging the constitutionality of a 2014 statute that designated electrocution as an alternative method of execution and the constitutionality of electrocution as a means of execution should be dismissed as unripe. Because the death-sentenced inmates are not currently subject to execution by electrocution and will not ever become subject to execution by electrocution unless one of two statutory contingencies occurs in the future, their claims challenging the constitutionality of the 2014 statute and electrocution as a means of execution are not ripe. Accordingly, we reverse the trial court's decision denying the defendants' motion to dismiss, dismiss the death-sentenced inmates' electrocution claims as unripe, and remand this matter to the trial court for further proceedings consistent with this decision.

I. Factual and Procedural History

Lethal injection has been the default method of execution in Tennessee since March 30, 2000.¹ However, on September 27, 2013, the Tennessee Department of Correction (“TDOC”) replaced its three-drug protocol for lethal injection with a new protocol that provides for lethal injection executions to be carried out by use of a single drug—pentobarbital. On November 20, 2013, Stephen Michael West and four other death-sentenced inmates (“Inmates”) ² filed a declaratory judgment action in the Chancery Court for Davidson County against the Commissioner of TDOC and other TDOC officials (collectively “Defendants”).³ The Inmates challenged the constitutionality and legality of the newly adopted single-drug lethal injection protocol.⁴ The Defendants filed an answer on December 13, 2013.⁵

While the Inmates' declaratory judgment action was proceeding in the ChanceryCourt, the General Assembly enacted the Capital Punishment Enforcement Act (“CPEA”), which became effective on July 1, 2014. Act of May 22, 2014, ch. 1014, 2014 Tenn. Pub. Act 1726. The CPEA, codified as a new subsection of an existing statute, provides as follows:

(e) For any person who commits an offense or has committed an offense for which the person is sentenced to the punishment of death, the method of carrying out the sentence shall be by lethal injection unless subdivision (e)(1) or (e)(2) is applicable. If subdivision (e)(1) or (e)(2) is applicable, the method of carrying out the sentence shall be by electrocution. The alternative method of execution shall be used if:

(1) Lethal injection is held to be unconstitutional by a court of competent jurisdiction in the manner described in subsection (d); ⁶ or

(2) The commissioner of correction certifies to the governor that one (1) or more of the ingredients essential to carrying out a sentence of death by lethal injection is unavailable through no fault of the department.

Tenn.Code Ann. § 40–23–114(e) (Supp. 2014) (footnote added).

On August 22, 2014, after passage of the CPEA, the Inmates sought the Chancery Court's permission to file an amended complaint that included an array of challenges to the constitutionality of electrocution as a method of execution and to the CPEA. The Defendants opposed the request, but the Chancery Court granted the Inmates' request, and the amended complaint was filed on September 18, 2014. Attached to the amended complaint were TDOC's lethal injection protocol, as amended on September 27, 2013, and its electrocution protocol, as amended on June 26, 2014.

One portion of the amended complaint, consisting of more than thirty pages, is entitled “Electrocution Causes of Action.” It contains more than 100 allegations and culminates in seven counts. The first four counts allege that electrocution: (1) violates article I, sections 8, 16, and 32 of the Tennessee Constitution and the Eighth and Fourteenth Amendments to the United States Constitution; (2) violates the state and federal constitutions by burning, mutilating, distorting, and disfiguring the death-sentenced inmate; (3) violates evolving standards of decency under the state and federal constitutions; and (4) violates the dignity of man in violation of the state and federal constitutions. The remaining three counts allege that the CPEA, specifically Tennessee Code Annotated section 40–23–114(e): (1) violates article I, section 8 of the Tennessee Constitution by its retrospective application; (2) violates the separation of powers provision in article II, sections 1 and 2 of the Tennessee Constitution; and (3) is void for vagueness because it does not define the statutory terms “essential,” “ingredients,” and “unavailable” and does not provide any procedural guidelines regarding the manner by which the Commissioner is to certify to the Governor that the “ingredients essential” to carrying out an execution by lethal injection are “unavailable.”

On October 14, 2014, the Defendants filed an answer to the portion of the amended complaint challenging lethal injection and a motion to dismiss the portion of the complaint entitled “Electrocution Causes of Action.” SeeTenn. R. Civ. P. 12.02(1), (6). The Defendants raised several grounds in support of their motion to dismiss, including, as pertinent to this appeal, the assertion that “the electrocution claims are not ripe.” ⁷ In a memorandum of law submitted in support of their motion, the Defendants argued that the electrocution claims were not ripe because the Inmates are not currently subject to execution by electrocution and will never be subject to electrocution as a means of execution unless one of the two contingencies of Tennessee Code Annotated section 4023–114(e) actually occurs. The Defendants alleged that the Inmates were impermissibly seeking a declaratory judgment “based on a hypothetical future application of the method of electrocution to their sentences.”

On November 17, 2014, the Inmates filed a response ⁸ in opposition to the motion to dismiss. The Inmates asserted that passage of the CPEA subjected them to a “credible threat” of execution by electrocution, which was sufficient to establish that their Electrocution Causes of Action are ripe.⁹ The Inmates also relied upon the following language contained in the Chancellor's order granting them permission to file the amended complaint:

Tenn[essee] Code Ann[otated] [section] 40–23–114(e) reflects the [L]egislature's concern that the drug pentobarbital may not be available to the State for its use in lethal injection. Although hypothetical to some degree, execution by electrocution is possible in this setting. The [L]egislature must have understood and assumed that the drug may not be available or that the courts could prohibit use of the drug for execution. Because the [L]egislature has chosen a default method of execution by electrocution, this court must respect the assumption that use of electrocution for execution of these [Inmates] is a real issue and that its use could occur without any review or testing of the method, and without warning. Consequently, the amendment is not wholly hypothetical or premature.

Although the Inmates attached fifty-seven exhibits to their response, ¹⁰ they failed to identify any portion of their amended complaint, or the attached exhibits, which alleged that one of the two contingencies provided in the CPEA, Tennessee Code Annotated section 40–23–114(e), had actually occurred, making them subject to execution by electrocution. The Inmates also failed to reference any portion of their amended complaint that alleged pentobarbital was unavailable. To the contrary, the Inmates' amended complaint alleged that the Defendants would obtain pentobarbital by illegal means or from a compounding pharmacy, and as a result, the drug would be tainted and inappropriate for use in an execution.

On December...