Zink v. Lombardi
| Decision Date | 09 October 2012 |
| Docket Number | Case No. 2:12-CV-4209-NKL |
| Parties | DAVID ZINK, et al., Plaintiffs, v. GEORGE A. LOMBARDI, et al., Defendants. |
| Court | U.S. District Court — Western District of Missouri |
This case involves a challenge by twenty-one Plaintiffs, prisoners on death row in Missouri, to the execution protocol issued by the Missouri Department of Corrections on May 15, 2012. Plaintiffs filed a petition for declaratory and injunctive relief on June 26, 2012, and Defendants removed to federal court on August 1, 2012. Pending before the Court is Plaintiffs' Motion to Remand [Doc. # 6]. For the reasons set forth below, Plaintiff's Motion is DENIED.
Plaintiffs, twenty-one prisoners under sentence of death due to convictions for first degree or capital murder in the state courts of Missouri, bring suit against the following Defendants in their official capacity: George Lombardi, Director of the Missouri Department of Corrections; David Dormire, Director of the Division of Adult Institutions at the Missouri Department of Corrections; Terry Russell, Warden of the Eastern Reception Diagnostic & Correctional Center, where Missouri executions are currently conducted; and John Does 2-40, Anonymous Executioners for the state of Missouri.
Plaintiffs allege that the execution protocol issued by Defendant Lombardi on May 15, 2012, stating that executions shall be carried out via injection of 2 g of the anesthetic propofol and 10 cc of the pain-suppressant lidocaine, violates the state and federal Constitutions by creating an unprecedented, substantial likelihood of foreseeable infliction of excruciating pain during execution. Count I alleges that this method of execution, the first of its kind, violates the prohibition on cruel and unusual punishments of the Eighth and Fourteenth Amendments and the Missouri Constitution, Art. I § 21, by inflicting unconscionable pain without reliable mitigation. Count II alleges that administering lidocaine without a prescription, as required by the Food, Drug & Cosmetic Act, violates the Supremacy Clause of the United States Constitution, Art. VI clause 2. Count III alleges that application of the newly promulgated protocol to Plaintiffs violates the ex post facto Clauses of the Missouri Constitution, Art. I § 13, and the United States Constitution, Art. I § 10, by creating a significant risk of increased punishment. Finally, Count IV alleges that Missouri statute § 546.720, which authorizes Defendant Lombardi to prescribe the means by which the Department of Corrections carries out executions by lethal injection or lethal gas, violates the separation of powers guaranty of the Missouri Constitution, Art. II § 1.
Plaintiffs have moved to remand to state court on the grounds that this case merits the exercise of federal court abstention.
In "exceptional circumstances," when the state law is unclear, a federal court may abstain from deciding cases that are based on both federal and state law claims. Allegheny County v. Frank Mashuda Co., 360 U.S. 185, 189, 79 S. Ct. 1060, 1063 (1959); Railroad Comm'n of Texas v. Pullman Co., 312 U.S. 496 (1941). For such "Pullman abstention" to be appropriate, two conditions must be met. First, there must be substantial uncertainty or ambiguity as to the meaning of a potentially controlling state law. Wisconsin v. Constantineau, 400 U.S. 433, 439, 91 S. Ct. 507, 511 (1971); Robinson v. City of Omaha, Neb., 866 F.2d 1042 (8th Cir. 1989). Second, there must be a reasonable possibility that the state court's clarification of state law would obviate the need for a ruling on the federal constitutional issue. Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 813, 96 S. Ct. 1236, 1244 (1976); see also Bellotti v. Baird, 428 US 132, 146-47 (1976). The purpose of abstention is twofold; on the one hand, to show respect for the principle of federal-state comity, and on the other, to minimize unnecessary Constitutional rulings. See, e.g., County of Allegheny, 360 U.S. at 189, 79 S. Ct. at 1063.
Abstention, however, is "the exception, not the rule." Colorado River Water Conservation Dist., 424 U.S. at 813, 96 S. Ct. at 1244. Abstention is not appropriate merely because the state has not yet considered the law's constitutionality under the state's constitution. Constantineau, 400 U.S. at 439, 91 S. Ct. at 511. Where the state and federal Constitutions are identical, abstention is not required. Reetz v. Bozanich, 397 U.S. 82 (1970). However, where the state constitutional provision is different and unique, or extends protection beyond what the federal constitution affords, abstentionmay be proper. Id.; see also Fields v. Rockdale County, 785 F.2d 1558, 1562 (11th Cir. 1986).
Plaintiffs argue that the lethal injection statute: 1) violates the separation of powers principles of Article II § 1of the Missouri Constitution; 2) operates as a retrospective law in violation of Article I § 13 of the Missouri Constitution; 3) violates the ban on cruel and unusual punishment of Article I § 21 of the Missouri Constitution. [Doc. # 6] It is clear that these state law claims, if decided in favor of the Plaintiffs, would ameliorate the need for a federal Constitutional ruling. However, to satisfy the high standards required for Pullman abstention, the meaning of the state laws in question must also be substantially uncertain or ambiguous, or the state constitutional provisions unique. In cases of ambiguous or unique state law, federal courts should abstain in order to avoid causing "needless friction with state policies." Pullman Co., 312 U.S. at 500, 61 S. Ct. at 645; see also Reetz, 397 U.S. at 87, 90 S. Ct. at 790. The Court finds that state constitutional jurisprudence on the above provisions is not so unique or ambiguous as to justify abstention in this case.
The Missouri Supreme Court has well developed case law on the subject of unconstitutional delegations of power to executive branch officials. Although "a legislative body cannot delegate its authority," the Court has held that "it may empower certain officers, boards and commissions to carry out in detail the legislative purposes and promulgate rules by which to put in force legislative regulations." Auto. Club of Mo. v. City of St. Louis, 334 S.W.2d 355, 358 (Mo. 1960). This is particularly so where the executive agency possesses special expertise. State Tax Comm'n v. Admin. Hearing Comm'n, 641 S.W.2d 69, 74 (Mo. 1982). Delegation is constitutional provided that the delegating statute or ordinance "contains sufficient criteria or guidelines" to guide the executive official's decision-making. Ruggeri v. City of St. Louis, 441 S.W.2d 361, 363 (Mo. 1969); see also Auto. Club of Mo., 334 S.W.2d at 358. Conversely, an ordinance or statute is unconstitutional when it "attempts to clothe an administrative officer with arbitrary discretion, without a definite standard or rule for his guidance." Porporis v. City of Warson Woods, 352 S.W.2d 605, 607 (Mo. 1962) (internal quotes omitted); see also Howe v. City of St. Louis, 512 S.W.2d 127, 133 (Mo. 1974). However, "as a qualification of the general rule," the Court has held that where an executive official requires flexible discretion for the exercise of police regulations for the protection of the public, such delegation may be valid. Milgram Food Stores, Inc. v. Ketchum, 384 S.W.2d 510, 514 (Mo. 1964). Regarding the delegation of law-making functions in particular, the Court has recognized that "the duty and power to define crimes and ordain punishment is exclusively vested in the legislature," State v. Brown, 660 S.W.2d 694, 698 (Mo. 1983), but that "the General Assembly, having established a sufficiently definitepolicy, may authorize an administrative officer to make rules, regulations or orders relating to the administration of enforcement of the law." State v. Cushman, 451 S.W.2d 17, 20 (Mo. 1970).
Given the extensive case law interpreting the Missouri Constitution's separation of powers provision, including the scope permissible discretionary decision-making by executive officials, a federal court will have sufficient guidance to address Plaintiff's state law claim. Therefore, abstention on the basis of the Art. II § 2 claim is inappropriate.
The Supreme Court of Missouri has defined ex post facto laws as those that "are retroactive and that either alter the definition of crimes or increase the punishment for criminal acts already committed." State ex rel. Cavallaro v. Groose, 908 S.W.2d 133, 136 (Mo. 1995); see also F.R. v. St. Charles County Sheriff's Dep't, 301 S.W.3d 56, 63 (Mo. 2010) (). The Supreme Court of Missouri has stated that the state constitution's prohibition on retrospective laws is "broader than the federal proscription of ex post facto laws," prohibiting a law that "creates a new obligation, imposes a newduty, or attaches a new disability with respect to transactions or considerations...
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