Cook v. State
Cook v. State
Opinion of the Court
OPINION
¶ 1 Daniel Wayne Cook, Beau John Greene, and Eldon Michael Schurz
¶ 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-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. Appellants sued the State and the Department, alleging A.R.S. § 13-757(A) “violates the separation-of-powers principle of Article 3 of the Arizona Constitution.” Subsection 13-757(A) reads as follows:
*187 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 injection protocol
¶ 4 The State and the Department moved to dismiss the complaint, arguing A.R.S. § 13-757(A) provides 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.”
DISCUSSION
1. Legislature’s Delegation of Authority to the Department
¶ 5 Section 13-757(A) instructs the Department to “supervis[e]” the “intravenous injection of a substance or substances in a lethal quantity sufficient to cause death.” Appellants argue that because this statute contains “no requirement as to how to determine a lethal dosage, how to establish intravenous access, or how to obtain the necessary substances,” it is an “unconstrained directive” that “represent^] a total abdication of authority on the part of the Legislature” and “a flagrant violation of Article 3 of the Arizona Constitution.” We disagree.
¶ 6 The Arizona Constitution mandates that the Legislative, Executive, and Judicial “departments shall be separate and distinct, and no one of such 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 to protect individual rights.” State v. Prentiss, 163 Ariz. 81, 84-85, 786 P.2d 932, 935-36 (1989). Although “[u]nder the doctrine of ‘separation of powers’ 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 may delegate “the job of formulating ... guideline[s] to an agency that is likely better equipped to undertake the task.” 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 “[although the Arizona Constitution created separate and distinct branches of government, ... an unyielding separation of powers is impracticable in a complex government, and some blending of powers is constitutionally acceptable.” 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 appointed the Department to supervise (1) the infliction
¶ 8 Moreover, the United States Constitution also implicitly guides and limits the Department’s discretion by requiring the Department’s protocol to “contain[] sufficient safeguards to prevent improper anesthetization” 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, 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 reasons, we hold A.R.S. § 13-757(A) provides sufficient standards to guide the Department’s discretion and thus does not violate the Arizona Constitution’s separation of powers doctrine.
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, by taking “advantage of this sweeping latitude” to deviate from or alter the protocol, have “acted in concert” to undermine the Judiciary’s duty to review whether the lethal injection procedures actually used by the Department in 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 proto
¶ 12 The “last-minute decision” to modify the protocol in Beaty’s 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
[bjeeause 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 hoe 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 déjá 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 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 ease, [the court has] been forced to rely on the ad hoe 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 We agree the Department’s recent history of deviating from or changing its protocol at the last minute raises constitutional concerns,
¶ 15 As our supreme court has recognized, “[o]nly when the legislative enactment ‘unreasonably limits or hampers’ the judicial system in performing its function is
¶ 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 have the practical consequence of obstructing judicial review of its changes. This practice 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 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 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 84, 786 P.2d at 935 (separation of powers doctrine is violated “[o]nly when” legislation “unreasonably limits or hampers” the judiciary from performing its function).
CONCLUSION
¶ 20 For the foregoing reasons, we affirm the judgment of the superior court.
. 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.
. Ariz. Dept. of Corr., Dept. Order 710, Execution Procedures (Jan. 25, 2012, as amended on June 5, 2012).
. 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).
. 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, 169 Wash.2d 318, 237 P.3d 263, 269 (2010) ("[T]he superintendent’s supervisory role as to executions plainly encompasses decision-making 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.”).
. 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.
Reference
- Full Case Name
- Daniel Wayne COOK Beau John Greene Eldon Schurz v. STATE of Arizona Arizona Department of Corrections Charles Ryan, Director, Arizona Department of Corrections, in his official capacity
- Cited By
- 5 cases
- Status
- Published