COOK, ET AL v. STATE
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IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE ) ) ) ) Plaintiffs/Appellants, ) ) v. ) ) STATE OF ARIZONA; ARIZONA ) DEPARTMENT OF CORRECTIONS; ) CHARLES RYAN, Director, Arizona ) Department of Corrections, in ) his official capacity, ) ) Defendants/Appellees. ______________________________________ ) DANIEL WAYNE COOK; BEAU JOHN GREENE; ELDON SCHURZ, DIVISION ONE FILED: 07/26/2012 RUTH A. WILLINGHAM, CLERK BY: sls 1 CA-CV 11-0629 A DEPARTMENT D O P I N I O N Appeal from the Superior Court in Maricopa County Cause No. CV2011-011677 The Honorable Maria del Mar Verdin, Judge AFFIRMED Jon M. Sands, Federal Public Defender Phoenix By Cary S. Sandman, Assistant Federal Public Defender and Jennifer Y. Garcia, Assistant Federal Public Defender Attorneys for Plaintiffs/Appellants Thomas C. By and and Horne, Arizona Attorney General Kent E. Cattani, Division Chief Counsel Jeffrey A. Zick, Section Chief Counsel Jonathan Bass, Assistant Attorney General Capital Litigation Section Attorneys for Defendants/Appellees N O R R I S, Judge Phoenix ¶1 Daniel Wayne Cook, Beau John Greene, and Eldon Michael Schurz1 (collectively, Appellants ) appeal the superior court s dismissal of authorizing their complaint Arizona s statute injection, lethal alleging Arizona Revised Statutes ( A.R.S. ) section 13-757(A) (2010), violates the separation of powers doctrine Constitution. court, the embodied in Article 3 of the Arizona Appellants argue, as they did in the superior statute unconstitutionally delegates legislative power to the Arizona Department of Corrections without providing sufficient standards to restrain the Department s discretion. Appellants also argue the statute unconstitutionally infringes on the Judiciary s duty to exercise review by not incorporating any restrictions on the Department s authority to devise and revise [its] prohibiting execution judicial review protocol, of thereby last-minute effectively changes to the protocol. ¶2 Based on the record before us, and for the reasons discussed below, we hold A.R.S. § 13-757(A) does not violate the Arizona Constitution s separation of powers doctrine. We recognize, however, the Department s practice of making last- 1 Thomas Paul West was also a Plaintiff and originally identified as an Appellant in the caption. Because West was executed on July 19, 2011, we have amended the caption to remove West as a Plaintiff/Appellant. 2 minute changes to its lethal injection protocol threatens adequate judicial review and therefore raises a legitimate, and troubling, separation of powers concern. Nevertheless, because the record before us does not reflect the concern has developed into a violation of the Arizona Constitution s separation of powers doctrine, we affirm the judgment of the superior court. FACTS AND PROCEDURAL BACKGROUND ¶3 Appellants are in the Department s custody and have been sentenced to death. Department, alleging separation-of-powers Constitution. Appellants sued the State and the A.R.S. § principle of 13-757(A) Article 3 violates of the the Arizona Subsection 13-757(A) reads as follows: The penalty of death shall be inflicted by an intravenous injection of a substance or substances in a lethal quantity sufficient to cause death, under the supervision of the state department of corrections. In support of their claim, Appellants alleged the Department had deviated from the lethal protocol2 injection it developed pursuant to the statute in administering lethal injections to several individuals in 2010 and 2011. deviations minimal demonstrated procedural 2 the standards Appellants alleged these Legislature on the [] failed to [Department] s impose policy Ariz. Dept. of Corr., Dept. Order 710, Execution Procedures (Jan. 25, 2012, as amended on June 5, 2012). 3 discretion and the Department has taken advantage of this failure by drafting an open-ended Protocol that [it] avows it will follow except when it will not. Appellants further alleged the statute give[s] the Department of Corrections the authority to draft open-ended execution protocols that it can change at the last second to perpetually evade judicial review. ¶4 The complaint, State arguing and the A.R.S. Department § moved 13-757(A) to dismiss provides the sufficient standards to guide the Department s discretion and the protocol has always been subject to judicial review. The superior court granted their motion, finding no unconstitutional delegation of authority. Quoting from Peters v. Frye, 71 Ariz. 30, 36, 223 P.2d 176, 180 (1950), the superior court emphasized that courts are always alert to grant a review where it is sufficiently shown that a subordinate agency has abused its discretion. DISCUSSION3 I. Legislature s Delegation of Authority to the Department ¶5 Section supervis[e] 3 the 13-757(A) intravenous instructs injection the of Department a substance to or We review de novo the constitutionality of the statute and begin with a strong presumption that laws are constitutional. Martin v. Reinstein, 195 Ariz. 293, 301, ¶ 16, 987 P.2d 779, 787 (App. 1999). We also review de novo the superior court s dismissal of Appellants claims for failure to state a claim under Arizona Rule of Civil Procedure 12(b)(6). Canyon Ambulatory Surgery Ctr. v. SCF Ariz., 225 Ariz. 414, 417, ¶ 7, 239 P.3d 733, 736 (App. 2010). 4 substances in a lethal Appellants argue as how to sufficient because that requirement quantity this to determine a to cause statute lethal death. contains dosage, no how to establish intravenous access, or how to obtain the necessary substances, it is an unconstrained directive that represent[s] a total abdication of authority on the part of the Legislature and a flagrant Arizona Constitution. ¶6 The Legislative, violation of Article 3 of the We disagree. Arizona Executive, Constitution and Judicial mandates that departments separate and distinct, and no one of such the shall be departments shall exercise the powers properly belonging to either of the others. Ariz. Const. art. 3. The separation of powers doctrine protect[s] one branch against the overreaching of any other branch and is part of an overall constitutional scheme protect individual rights. State v. Prentiss, 163 Ariz. 81, 84-85, 786 P.2d 932, 935-36 (1989). doctrine of separation of to powers Although [u]nder the the legislature alone possesses the lawmaking power and while it cannot completely delegate this power to any other body, it may allow another body to fill in the details of legislation already enacted. State v. Ariz. Mines Supply Co., 107 Ariz. 199, 205, 484 P.2d 619, 625 (1971). Thus, the Legislature 5 may delegate the job of formulating . . . guideline[s] to an agency better equipped to undertake the task. that is likely Griffith Energy, L.L.C. v. Ariz. Dep t of Revenue, 210 Ariz. 132, 137, ¶ 24, 108 P.3d 282, 287 (App. 2005) (citing Arizona Mines, 107 Ariz. at 205, 484 P.2d at 625). We have long recognized that [a]lthough the Arizona Constitution created separate and distinct branches of government, . impracticable . in . a an unyielding complex separation government, and powers is constitutionally acceptable. of some powers is blending of Andrews v. Willrich, 200 Ariz. 533, 535, ¶ 7, 29 P.3d 880, 882 (App. 2001) (citation omitted). ¶7 In this case, the Legislature, through A.R.S. § 13- 757(A), has infliction appointed of the the penalty Department of death to by supervise (2) an (1) the intravenous injection with (3) substances in a lethal quantity sufficient to cause death. The statute accordingly provides a sufficient basic standard, i.e., a definite policy and rule of action which will serve as a guide for the Department. Arizona Mines, 107 Ariz. at 205-06, 484 P.2d at 625-26 (quoting Dep t of Health v. Owens-Corning Fiberglas Corp., 242 A.2d 21, 29-30 (N.J. Super. Ct. App. Div. 1968)). In addition, the record reflects it would be impracticable for the Legislature to supply the details of the execution process itself. 6 The Department s current execution protocol spans 35 pages and details the procedures to be followed from thirty-five days prior to the day of execution . . . through the execution. procedure involving The protocol outlines a complex coordination with various Department personnel in different Department facilities, the Arizona Board of Executive Clemency, enforcement, instructions should be and on the the will be state and media. It contains chemicals to news various administered execution witnesses, by Department supervised and be local detailed used, personnel, regulated. law how and how It is they the both reasonable and constitutionally acceptable for the Legislature to delegate the details of implementing the death penalty to an agency that ensuring it possible. ¶8 is better is equipped implemented to as undertake uniformly and the task of humanely as Griffith Energy, 210 Ariz. at 137, 108 P.3d at 287. Moreover, implicitly requiring safeguards guides the to the and limits Department s prevent United States the Department s protocol improper Constitution to discretion contain[] anesthetization also by sufficient to avoid a substantial risk of serious harm and . . . serious pain and suffering that would qualify as cruel and unusual punishment under the Eighth Amendment. Dickens v. Brewer, 631 F.3d 1139, 7 1144 (9th Cir. 2011) (discussing and applying Baze v. Rees, 553 U.S. 35, 128 S. Ct 1520, 170 L. Ed. 2d 420 (2008)). ¶9 For these provides reasons, sufficient we standards hold to A.R.S. guide § the 13-757(A) Department s discretion and thus does not violate the Arizona Constitution s separation of powers doctrine.4 II. Alleged Infringement of Judicial Review ¶10 Appellants also argue the Legislature has, by granting the Executive Branch the authority to devise and revise an execution protocol at the Executive s whim, given [the Department] the means to perpetually deny prisoners the right of judicial review and perpetually deny the judiciary the ability to exercise its constitutionally granted authority. Thus, Appellants argue the Legislature, by not incorporating into the statute any restrictions on the Department s authority to devise and revise an execution protocol, and the Department, 4 Our analysis is based on the Arizona Constitution s strong prohibition upon the usurpation of the powers of one branch of government by another branch. Martin, 195 Ariz. at 322, ¶ 105, 987 P.2d at 808. We also recognize, as the State and the Department point out, that courts in other jurisdictions have also rejected similar arguments. See, e.g., Brown v. Vail, 237 P.3d 263, 269 (Wash. 2010) ( [T]he superintendent s supervisory role as to executions plainly encompasses decisionmaking powers about how lethal injection is to be accomplished. ); Sims v. State, 754 So. 2d 657, 670 (Fla. 2000) ( [W]e do not find that the Legislature s failure to define the chemicals to be administered in the lethal injection necessarily renders the statute unconstitutional. ). 8 by taking advantage of this sweeping latitude to deviate from or alter the protocol, have acted in concert to undermine the Judiciary s procedures duty to actually review used whether by the the lethal Department in injection any given execution pass constitutional muster. ¶11 In making this argument, Appellants point to several examples in the past 14 months in which inmates facing the death penalty have challenged last-minute changes to the Department s execution protocol in Arizona and federal courts. They emphasize the Department changed its Protocol a mere eighteen hours before the execution of Donald Beaty, and deprived Mr. Beaty of the ability to have the courts adequately review this fundamental change. In that case, the Arizona Supreme Court refused to stay Beaty s execution based on the State s avowal that the only change in the execution protocol [was] to substitute one drug for another in the three-drug execution chemicals. Order, State v. Beaty, No. CR-85-0211-AP/PC (Ariz. Sup. Ct. May 25, 2011). One justice, however, dissented from the order denying the stay, emphasizing the application now before us was created by the State s last-minute decision to substitute compelled one to barbiturate address this for issue another, literally and we have overnight, been adding that justice would better be served by promptly addressing the 9 issues raised by the State s actions in a less urgent setting. Id. at 3 (Hurwitz, V.C.J., dissenting). ¶12 Beaty s The last-minute decision to modify the protocol in case was not an isolated occurrence. When the Department changed its protocol on the eve of [] two planned executions, the United States Court of Appeals for the Ninth Circuit, in Towery v. Brewer, 672 F.3d 650 (9th Cir. 2012), held oral argument less than 48 hours before the first scheduled execution, id. at 652, and explained that [b]ecause the death penalty is undeniably the most serious penalty available to a State, the procedures for such penalty must be implemented in a reasoned, deliberate, and constitutional manner. Over time, the State of Arizona, however, has insisted on amending its execution protocol on an ad hoc basis . . . leaving the courts with a rolling protocol that forces us to engage with serious constitutional questions and complicated factual issues in the waning hours before executions. This approach cannot continue. Id. at 653. ¶13 And, when faced again with last-minute changes to the protocol before another execution, the Ninth Circuit stressed: We embark upon this opinion with déjà vu, the feeling that we have been here before, but with the knowledge that we will likely be here again. . . . The actual procedures followed during individual executions have not been consistent . . . [and] there is uncertainty as to how the next execution will be carried out. The 10 State continues to cling to its discretion, all the while urging us - during oral argument in the waning hours before execution - to trust that it will exercise its discretion in a constitutionally permissible manner. Lopez v. Brewer (Lopez I), 680 F.3d 1068, 1070 (9th Cir. 2012). See also Lopez v. Brewer (Lopez II), 680 F.3d 1084, 1094-95 (9th Cir. 2012) (Reinhardt, J., dissenting from the denial of rehearing en banc) ( In case after case, [the court has] been forced to rely on the ad hoc representations of the state s counsel in conducting one of the gravest responsibilities that [the court is] asked to perform: approving the state s plan to take a human life. ). ¶14 from We agree the Department s recent history of deviating or changing constitutional 5 its protocol concerns,5 as well at as the a last minute separation of raises powers As the Ninth Circuit recognized in Towery, [b]ecause the death penalty is undeniably the most serious penalty available to a State, the procedures for such penalty must be implemented in a reasoned, deliberate, and constitutional manner. 672 F.3d at 653. The Department s last-minute changes to its protocol have raised serious concerns under the Eighth Amendment s prohibition of cruel and unusual punishment, see id. at 658-59, the Fourteenth Amendment s guarantee of an inmate s right to in-person visits with counsel, see id. at 658; Lopez I, 680 F.3d at 1077; see also Ching v. Lewis, 895 F.2d 608, 609-10 (9th Cir. 1990) ( The fourteenth amendment guarantees prisoners meaningful access to the courts. . . . The opportunity to communicate privately with an attorney is an important part of that meaningful access. ), and the Fourteenth Amendment s equal protection clause. Towery, 672 F.3d at 659-60; Lopez I, 680 F.3d at 1075-76. 11 concern under Appellants, the Arizona however, Constitution. that the We disagree with Legislature acted unconstitutionally when it passed an unconstitutional statute. (Emphasis in original.) reasons we have Nevertheless, we implementation concern; of The statute is constitutional for the previously agree the with discussed. Appellants statute specifically, it See raises that a threatens supra the 7-9. Department s separation to ¶¶ prevent of powers meaningful judicial review. ¶15 As our supreme court has recognized, [o]nly when the legislative judicial enactment system in unreasonably performing [separation of powers] violated. limits its an act by one department function hampers is article the 3 Prentiss, 163 Ariz. at 84, 786 P.2d at 935 (citation omitted). that or [I]n reviewing a claim would usurp the powers of another, State v. Donald, 198 Ariz. 406, 416, ¶ 37, 10 P.3d 1193, 1203 (App. 2000), or, in other words, whether there has been a significant interference by one department with the operations of another department, J.W. Hancock Enters., Inc., v. Ariz. State Registrar of Contractors, 142 Ariz. 400, 405, 690 P.2d 119, 124 (App. 1984), courts in Arizona have repeated and refined a group of factors to be considered. Donald, 198 Ariz. at 416, ¶ 37, 10 P.3d at 1203. 12 These factors are (1) the essential nature of the power exercised by the branch alleged to have usurped the power of another branch; (2) the degree of control that branch assumes in exercising the power of the other branch; (3) the objective of that branch s exercise of power; and (4) the practical consequences of the action. Id.; accord San Carlos Apache Tribe v. Superior Court, 193 Ariz. 195, 211, ¶ 37, 972 P.2d 179, 195 (1999). ¶16 Here, the fourth factor is most obviously implicated. As described above, the Department s last-minute revisions to its protocol have forced courts to confront serious constitutional questions and complicated factual issues in the waning hours before executions. Towery, 672 F.3d at 653. Thus, the Department s recent practice of amending or deviating from its protocol at what could be characterized as the eleventh hour could judicial have review the of practical its consequence changes. This of practice obstructing therefore threatens to usurp the powers, of the Judiciary, that is, its duty to exercise judicial review. ¶17 We note that as of June 5, 2012, the Department amended its protocol to include a choice of several different chemical mixtures for lethal injections and gave its Director the sole discretion as to which protocol will be used for the scheduled execution, but required the Director to provide his 13 decision to the inmate in writing 7 days prior to the scheduled execution date. Therefore, under the amended protocol an individual sentenced to death is subject to, and could likely challenge the constitutionality of, any or all of the various chemical mixtures in advance of his or her scheduled execution date. In addition, the seven-day advance notice required by the amended protocol, although relatively short, is an improvement on the one-day or two-day notice provided by the Department in the past. We also note, however, that the protocol still disclaims that [t]hese procedures shall be followed as written unless deviation or adjustment is required, as determined by the Director and therefore the Department could presumably change without notice its guideline for providing notice of what mixture it plans to use for a certain execution. ¶18 Nevertheless, because Arizona courts have been able to provide review - albeit rushed -- of the Department s changes to its protocol, and because the Department has amended its protocol to include additional provisions that, on their face, if implemented by the Department, should help ensure meaningful judicial review, we hold the Department has not yet violated the Arizona Constitution s separation of powers doctrine. ¶19 We underscore, however, the concern we have regarding the Department s past practice of altering the protocol on a 14 last-minute basis. If the Department were to continue the practice in such a way as to unreasonably limit or hamper the courts from exercising meaningful judicial review of its actions, then, depending on the facts, we might be presented with a separation of powers violation. See Prentiss, 163 Ariz. at of 84, violated 786 P.2d [o]nly at 935 when (separation legislation powers doctrine is limits or unreasonably hampers the judiciary from performing its function). CONCLUSION ¶20 For the foregoing reasons, we affirm the judgment of the superior court. /s/ PATRICIA K. NORRIS, Judge CONCURRING: /s/ MAURICE PORTLEY, Presiding Judge /s/ LAWRENCE F. WINTHROP, Chief Judge 15
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