Mississippians Educating for Smart Justice, Inc., et al. v. Miss. Dep't of Corrections
| Docket Number: | 2011-CA-00632-SCT Linked Case(s): 2011-TS-00632-SCT |
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| Supreme Court: | Opinion Link Opinion Date: 08-23-2012 Opinion Author: Pierce, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Mississippi Administrative Procedures Law - Execution protocol - Section 99-19-51 - Notice and comment requirements - Section 25-43-3.111 - Section 25-53-102(i)(ii)(6) - Section 99-19-53 - Section 99-19-55 Judge(s) Concurring: Waller, C.J., Carlson and Dickinson, P.JJ., Randolph, Lamar, Kitchens, Chandler and King, JJ. Procedural History: Bench Trial Nature of the Case: CIVIL - STATE BOARDS AND AGENCIES |
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| Trial Court: |
Date of Trial Judgment: 04-21-2011 Appealed from: Hinds County Circuit Court Judge: William A. Gowan, Jr. Disposition: Denied injunctive relief enjoining adoption of new execution protocol. Case Number: 251-11-335CIV |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Mississippians Educating for Smart Justice, Inc., Mississippi Cure, Inc., Robert Simon, Rodney Gray a/k/a Rodney Fitge Gray and Benny Joe Stevens |
MICHAEL JAMES BENTLEY
DAVID NEIL McCARTY
JAMES MICHAEL PRIEST, JR. |
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| Appellee: | Mississippi Department of Corrections | OFFICE OF THE ATTORNEY GENERAL: JASON LEWIS DAVIS HAROLD EDWARD PIZZETTA, III | ||
Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Mississippi Administrative Procedures Law - Execution protocol - Section 99-19-51 - Notice and comment requirements - Section 25-43-3.111 - Section 25-53-102(i)(ii)(6) - Section 99-19-53 - Section 99-19-55 |
| Summary of the Facts: | Three death-row inmates, Robert Simon, Rodney Gray, and Benny Stevens, along with the groups, Mississippians Educating for Smart Justice and Mississippi CURE, Inc., filed a complaint in the Hinds County Circuit Court, seeking a writ of mandamus, injunctive relief, and/or a declaratory judgment against the Mississippi Department of Corrections. The complaint alleged that the MDOC’s newly adopted execution protocol was invalid pursuant to Mississippi Administrative Procedures Law because the MDOC had adopted a new rule with regard to the MDOC’s lethal injection protocol without first meeting the notice-and-comment requirements set forth by the MAPL. The circuit court denied relief. The petitioners appeal. |
| Summary of Opinion Analysis: | Prior to March 2011, the execution protocol implemented by the commissioner for carrying out the method of death prescribed by section 99-19-51 had called for injection of three drugs: sodium pentothal (also known as sodium thiopental), an anesthetic; pavulon (also known as pancuroniam bromide), a paralytic agent; and potassium chloride, which stops the heart. In 2009, Hospira, Inc., the sole United States manufacturer of the drug sodium thiopental, announced that it planned to stop producing sodium thiopental, because the company did not want the drug used in executions. On March 29, 2011, the MDOC issued a revised execution protocol, allowing the use of pentobarbital, “[i]n the event of an unavailability of a sufficient quantity of sodium pentothal from available sources . . . .” The petitioners claimed that this revision to the MDOC’s execution protocol constituted an invalid rule change under section 25-43-3.111, which states, in part: “A rule adopted after July 1, 2005, is invalid unless adopted in substantial compliance with the provisions of Sections 25-43-3.102 through 25-43-3.110.” A similar question was presented to the Missouri Supreme Court in Middleton v. Missouri Department of Corrections, 278 S.W.3d 193, 195 (Mo. 2009). There, the Missouri Supreme Court was asked to declare whether the Missouri Department of Corrections’ newly adopted execution protocol was void because the department had failed to undertake notice-and-comment rulemaking as outlined by the Missouri Administrative Procedures Act. In finding that the execution protocol was not subject to the rulemaking requirements of the MAPA, the Missouri Supreme Court held that the Missouri Legislature intended for the language, “concerning only inmates,” to simply “limit who may be the direct subject of a protocol or statement.” Here, the fact that the execution protocol contains provisions pertaining to individuals other than a condemned inmate does not lead to a conclusion that the drug protocol falls within the strictures of the MAPL. Indeed, no serious contention can be made that the MDOC’s drug protocol falls outside section 25-53-102(i)(ii)(6), as every intricate detail of the protocol applies directly to death-row inmates under any ordinary meaning of the exemption language set forth by that section. Section 99-19-53 provides that “[a]ll duties and necessary acts pertaining to the execution of a convict shall be performed by the commissioner of corrections . . . .” Section 99-19-55 provides that the execution shall take place at 6:00 p.m., or as soon as possible thereafter within the next twenty-four hours, at an appropriate place designated by the commissioner on the premises of the state penitentiary at Parchman, Mississippi. The execution protocol at issue applies specifically to the facility at Parchman, and it does not affect any provision of section 99-19-55 or alter section 99-19-51. Accordingly, the MDOC execution protocol is a “regulation or statement” related only to inmates of the MDOC and is therefore exempt from the provisions of the MAPL. |
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