[Cite as Scott v. Houk, 127 Ohio St.3d 317, 2010-Ohio-5805.]




                               SCOTT v. HOUK, WARDEN.
          [Cite as Scott v. Houk, 127 Ohio St.3d 317, 2010-Ohio-5805.]
Death penalty — Method of execution — Lethal-injection protocol — Ohio
        provides no postconviction-relief or other state-law mode of action to
        litigate issue of whether lethal-injection protocol is constitutional under
        Baze v. Rees — Lack of such a forum is not unconstitutional — Certified
        question of state law answered in the negative.
           (No. 2009-1369 — Submitted September 14, 2010 — Decided
                                   December 2, 2010.)
   ON ORDER from the United States District Court, Northern District of Ohio,
    Eastern Division, Certifying a Question of State Law, No. 4:07-CV-0753.
                                 __________________
        {¶ 1} On July 29, 2009, Judge John Adams of the United States District
Court, Northern District of Ohio, Eastern Division, certified the following
question of state law to this court: “Is there a post-conviction or other forum to
litigate the issue of whether Ohio’s lethal injection protocol is constitutional under
Baze v. Rees, 553 U.S. 35, 128 S.Ct. 1520,170 L.Ed.2d 420 (2008), or under Ohio
law?” The district court recertified the question to us on September 3, 2009, due
to an inadvertent failure to provide notice of the original order to the parties. We
accepted the question for review. 123 Ohio St.3d 1420, 2009-Ohio-5340, 914
N.E.2d 1062.       On September 14, 2010, we heard oral argument from the
petitioner. The respondent forfeited his argument by not filing a merit brief.
        {¶ 2} There are several established methods for an Ohio death-penalty
defendant to receive state review of his or her case. These methods, created by
the legislature, are clear in their application to death-penalty defendants. See
Section 2(B)(2)(c), Article IV, Ohio Constitution (direct appeal of death-penalty
                             SUPREME COURT OF OHIO




case to this court); R.C. 2953.21 (postconviction-relief procedure for persons
convicted of crimes, including those sentenced to death); and R.C. 2725.01 (state
habeas corpus petition). Additionally, we allow a death-penalty defendant to file
an application to reopen his or her appeal in the courts of appeals and in this court
under App.R. 26(B). See, e.g., State v. Ketterer, 113 Ohio St.3d 1463, 2007-
Ohio-1722, 864 N.E.2d 650.
       {¶ 3} We have held that these opportunities for review more than satisfy
defendants’ “constitutional rights to due process and fair trials” while also
protecting Ohio’s “inherent power to impose finality on its judgments.” State v.
Steffen (1994), 70 Ohio St.3d 399, 407, 412, 639 N.E.2d 67.
       {¶ 4} The Ohio General Assembly has not yet provided an Ohio-law
cause of action for Ohio courts to process challenges to a lethal-injection protocol,
and given the review available on this issue through Section 1983, Title 42,
U.S.Code, for injunctive relief against appropriate officers or federal habeas
corpus petitions, we need not judicially craft a separate method of review under
Ohio law.    Accordingly, until the General Assembly explicitly expands state
review of death-penalty cases by creating a methodology for reviewing Ohio’s
lethal-injection protocol, we must answer the certified question as follows: There
is no state postconviction relief or other state-law mode of action to litigate the
issue of whether a specific lethal-injection protocol is constitutional under Baze v.
Rees, 553 U.S. 35, 128 S.Ct. 1520, 170 L.Ed.2d 420, or under Ohio law.
                                                                       So answered.
       LUNDBERG STRATTON, O’DONNELL, LANZINGER, and CUPP, JJ., concur.
       O’CONNOR, J., concurs separately.
       BROWN, C.J., and PFEIFER, J., dissent.
                              __________________
       LUNDBERG STRATTON, J., concurring.




                                         2
                                 January Term, 2010




        {¶ 5} I concur in the majority’s decision to answer the certified question
by concluding that currently there is no state postconviction or other avenue to
litigate the issue of whether Ohio’s lethal injection protocol is constitutional under
Baze v. Rees (2008), 553 U.S. 35, 128 S.Ct. 1520, 170 L.Ed.2d 420, or under
Ohio law.
        {¶ 6} The dissent of Chief Justice Brown contends that this court has
abdicated its responsibility to the federal courts to hear and settle this matter,
thereby shirking its duties to enforce and interpret Ohio law. The dissent begins
from the faulty starting point that the central issue in this case is whether we will
ensure that the delivery of death does not needlessly inflict severe pain. However,
the true issue in this case is whether this court is required, via judicial fiat, to set
up yet another layer of appeals when the legislature has not. For the reasons that
follow, I concur with the majority’s decision today that Ohio has no such
postconviction or other forum to litigate the issue of whether Ohio’s lethal
injection protocol is constitutional under Baze or under Ohio law, that the federal
courts are well equipped to handle such challenges, and that this court need not
create an appellate procedure where one does not exist.
        {¶ 7} The dissent seems to begin with the assumption that all methods of
executions are suspect. As noted in Baze v. Rees, “[r]easonable people of good
faith disagree on the morality and efficacy of capital punishment, and for many
who oppose it, no method of execution would ever be acceptable.” Baze, 553
U.S. at 61, 128 S.Ct. 1520, 170 L.Ed.2d 420. This philosophical debate, however,
is misplaced in this case. Our duty is to uphold the law, not to opine on whether
there could be a more humane manner of administering the penalty of death in
Ohio.
        {¶ 8} Capital punishment is constitutional. Gregg v. Georgia (1976),
428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859. Therefore, “[i]t necessarily follows
that there must be a means of carrying it out. Some risk of pain is inherent in any



                                           3
                            SUPREME COURT OF OHIO




method of execution — no matter how humane — if only from the prospect of
error in following the required procedure. It is clear, then, that the Constitution
does not demand the avoidance of all risk of pain in carrying out executions.”
Baze, 553 U.S. at 47.
                              Eighth Amendment
       {¶ 9} Our decision today is guided by the Eighth Amendment to the
Constitution, which provides that “[e]xcessive bail shall not be required, nor
excessive fines imposed, nor cruel and unusual punishments inflicted.” Further
guidance is found in R.C. 2949.22(A), Ohio’s lethal injection statute, which
provides that “a death sentence shall be executed by causing the application to the
person, upon whom the sentence was imposed, of a lethal injection of a drug or
combination of drugs of sufficient dosage to quickly and painlessly cause death.”
       {¶ 10} Throughout the history of this country, the United States Supreme
Court has time and again upheld various methods of carrying out a sentence of
death. “For much of American history, capital punishment was carried out by
public hanging.” Elliot Garvey, A Needle in the Haystack: Finding a Solution to
Ohio’s Lethal Injection Problems (2010), 38 Cap.U.L.Rev. 609, 622. In 1878, the
court upheld the use of a firing squad in carrying out executions in Wilkerson v.
Utah (1878), 99 U.S. 130, 134-135, 25 L.Ed. 345. In 1890, the court upheld the
use of the newly created electric chair in In re Kemmler (1890), 136 U.S. 436, 10
S.Ct. 930, 34 L.Ed. 519.     Today, at least 36 states, along with the federal
government, have now adopted lethal injection as the exclusive or primary means
of implementing the death penalty. Baze, 553 U.S. at 42-43.
       {¶ 11} The dissent seems to advocate a 100 percent guarantee of a
painless death. But the Baze court, in upholding Kentucky’s lethal injection
protocol, held that “[s]imply because an execution method may result in pain,
either by accident or as an inescapable consequence of death, does not establish
the sort of ‘objectively intolerable risk of harm’ that qualifies as cruel and



                                        4
                                January Term, 2010




unusual.” Id. at 50. Baze held that “[p]ermitting an Eighth Amendment violation
to be established on [a showing that better alternatives exist] would threaten to
transform courts into boards of inquiry charged with determining ‘best practices’
for executions, with each ruling supplanted by another round of litigation touting
a new and improved methodology. Such an approach finds no support in our
cases, would embroil the courts in ongoing scientific controversies beyond their
expertise, and would substantially intrude on the role of state legislatures in
implementing their execution procedures – a role that by all accounts the States
have fulfilled with an earnest desire to provide for a progressively more humane
manner of death.” Id. at 51.
                                    R.C. 2949.22
         {¶ 12} The dissent argues that although the Eighth Amendment may not
bar Ohio’s new execution protocol, R.C. 2949.22(A) provides greater protection
against pain and suffering than does the Eighth Amendment prohibition against
cruel and unusual punishment. As noted in our order, there are already several
established methods for an Ohio capital defendant to receive state review of his or
her case. These methods, created by the Constitution or the legislature, are clear
in their application to capital defendants. Section 2(B)(2)(c), Article IV of the
Ohio Constitution authorizes a direct appeal to this court of all death penalty
cases.    R.C. 2953.21 creates postconviction relief procedures for persons
convicted of crimes, including those who have been sentenced to death. R.C.
2725.01 prescribes procedures for state habeas corpus petitions that apply to
capital defendants.    Finally, capital defendants may file an application for
reopening their appeals in the court of appeals and in this court under App.R.
26(B). Apart from state review, federal review includes federal habeas corpus
under Section 2254, Title 28, U.S. Code, as well as an action under Section 1983,
Title 42, U.S. Code, for injunctive relief.




                                              5
                             SUPREME COURT OF OHIO




       {¶ 13} This court is correct to refrain from creating another appellate
process when the General Assembly has not so provided.
                     Declaratory Judgment and Mandamus
       {¶ 14} The dissent highlights what it believes to be two avenues by which
a death-row petitioner may challenge the method of execution in Ohio courts:
declaratory judgment actions and mandamus.           In my view, neither of these
methods is necessary, as the federal courts have done a thorough job thus far of
adjudicating this issue. Further, a writ of mandamus to ensure that the warden
fulfills his duty to carry out the death penalty quickly and painlessly under R.C.
2949.22 would simply order the warden to do that which he or she is already
required to do by law and that which he or she is already doing.
                                      Conclusion
       {¶ 15} The Ohio General Assembly did not choose to create an Ohio
cause of action specifically to litigate the issue of whether Ohio’s lethal injection
protocol is constitutional under Baze or under Ohio law. I support this court’s
decision not to create a cause of action that does not exist, but rather to leave that
policy decision up to the General Assembly.
       {¶ 16} With the existing system of direct appeals, postconviction relief,
state habeas corpus, applications for reopening, federal habeas corpus, and
Section 1983 actions, along with the various levels of appeals attendant to each
action, there are more than adequate protections for those given the ultimate
sentence. At some point, the victims’ families and the state deserve finality in
judgment. For those reasons, I concur in the majority’s decision to answer the
certified question in the negative.
       LANZINGER, J., concurs in the foregoing opinion.
                               __________________
       O’CONNOR, J., concurring.




                                          6
                                January Term, 2010




        {¶ 17} I concur in the majority’s answer to the certified question that there
is no state postconviction relief or other state-law mode of action to litigate the
issue of whether a specific lethal-injection protocol is constitutional under Baze v.
Rees (2008), 553 U.S. 35, 128 S.Ct. 1520, 170 L.Ed.2d 420, or under Ohio law. I
write separately, however, to address the flawed argument in the dissent of Chief
Justice Brown, that a declaratory-judgment action is the proper avenue for
litigating this issue.
        {¶ 18} The dissent declares that Michael Scott has the right to a quick and
painless death under R.C. 2949.22(A) and that Ohio courts are obligated to
enforce that right by determining whether the lethal-injection protocol satisfies the
statutory criteria. The dissent sanctions a declaratory-judgment action as the
appropriate mechanism through which a petitioner can protect his right.              I
disagree.
        {¶ 19} Ohio’s Declaratory Judgment Act authorizes courts of record to
“declare rights, status, and other legal relations whether or not further relief is or
could be claimed.” R.C. 2721.02(A). And as this court has held, a declaratory-
judgment action provides a “means by which parties can eliminate uncertainty
regarding their legal rights and obligations.”      Mid-Am. Fire & Cas. Co. v.
Heasley, 113 Ohio St.3d 133, 2007-Ohio-1248, 863 N.E.2d 142, ¶ 8.
        {¶ 20} The flaw in the dissent’s position, however, is that R.C.
2949.22(A) does not create a cause of action to enforce any supposed right to a
quick and painless death. Cooey v. Strickland (C.A.6, 2009), 589 F.3d 210, 234.
Rather, the statute directs that the death sentence be carried out by lethal injection
of a drug, or combination of drugs, of sufficient dosage to quickly and painlessly
cause death to the person upon whom the death penalty was imposed. R.C.
2949.22(A).      The statute, therefore, imposes a duty upon the individual
administering the lethal-injection protocol, but it does not plainly create any right
to a quick and painless death as the dissent mistakenly presumes. In the absence



                                          7
                             SUPREME COURT OF OHIO




of demonstrating an established right, a declaratory judgment does not lie under
R.C. 2721.02(A).
       {¶ 21} The dissent’s summary suggestion that all death-row petitioners
should be permitted to assert both constitutional and statutory challenges to the
lethal-injection protocol by means of a declaratory-judgment action is also flawed
by the speculative nature of such a claim.         While the declaratory-judgment
statutes should be liberally construed, the statutes are not without limitation:
       {¶ 22} “Most significantly, in keeping with the long-standing tradition
that a court does not render advisory opinions, they allow the filing of a
declaratory judgment only to decide ‘an actual controversy, the resolution of
which will confer certain rights or status upon the litigants.’ Corron v. Corron
(1988), 40 Ohio St.3d 75, 79, 531 N.E.2d 708.               Not every conceivable
controversy is an actual one. As the First District aptly noted, in order for a
justiciable question to exist, ‘ “ ‘[t]he danger or dilemma of the plaintiff must be
present, not contingent on the happening of hypothetical future events * * * and
the threat to his position must be actual and genuine and not merely possible or
remote.’ ” ’ League for Preservation of Civil Rights v. Cincinnati (1940), 64
Ohio App. 195, 197, 17 O.O. 424, 28 N.E.2d 660, quoting Borchard, Declaratory
Judgments (1934) 40.” Mid-Am. Fire & Cas. Co. v. Heasley, 113 Ohio St.3d 133,
2007-Ohio-1248, 863 N.E.2d 142, ¶ 9.
       {¶ 23} A death-row petitioner’s challenge to the lethal-injection protocol
is based on the possibility that the application of the protocol could violate his
rights under the Constitution and/or Ohio law.          Thus, the claim would be
contingent on the happening of a hypothetical future event, which is an
impermissible basis to support a declaratory-judgment action. Ex parte Alba
(Tex.Crim.App.2008), 256 S.W.3d 682, a case upon which the dissent relies,
lends further credence to my view.        Therein, the court rejected a death-row
convict’s application for habeas relief challenging the lethal-injection protocol



                                          8
                               January Term, 2010




and addressed the pitfalls of using a declaratory-judgment action to challenge the
protocol:
       {¶ 24} “[E]ven if the mixture currently used for lethal injection is
determined to violate the Eighth Amendment, Applicant would still not be entitled
to release or retrial — he would still be subject to the same sentence, which would
be carried out using a different mixture as determined by the Texas Department of
Criminal Justice. Additionally, the three-drug mixture Applicant complains about
may not even be used when the date of his execution is set. Therefore, any
consideration of the merits would result in a declaratory judgment and would not
result in relief for Applicant. See Ex Parte Puckett, 161 Tex.Crim. 51, 274 S.W.2d
696, 697 (1954) (stating, ‘This court is not authorized to enter a declaratory
judgment.’).” Id. at 686.
       {¶ 25} In addition to the remoteness of Scott’s challenge to the possibility
that the injection protocol may cause him severe pain, the current protocol may
not even be used when his execution date is set. In fact, media outlets repeatedly
have reported on an alleged shortage of sodium thiopental, the drug currently used
by Ohio in executions. See, e.g., Kathy Lohr, States Delay Executions Owing to
Drug Shortage (Sept. 16, 2010), http://www.npr.org/templates/story/story.php?
storyId=129912444 (last accessed Nov. 10, 2010). Furthermore, as noted in Ex
parte Alba, a declaratory judgment potentially would not offer Scott any relief
from his death sentence.
       {¶ 26} Finally, the “possibility” that the lethal-injection protocol would
cause Scott or any death-row convict severe pain is further undermined by the
recent holding in Cooey, 589 F.3d 210. In Cooey, the Sixth Circuit Court of
Appeals thoroughly reviewed evidence presented regarding Ohio’s current one-
drug protocol and determined that the current protocol is similar to the three-drug
protocol held constitutional by the United States Supreme Court in Baze. 589
F.3d at 221. The court therefore concluded that the risk of severe pain was no



                                        9
                             SUPREME COURT OF OHIO




greater — and likely less — than that inherent in any constitutional lethal
injection. Id.
       {¶ 27} The dissent’s endorsement of a declaratory-judgment action for
litigating Scott’s claim is not only misguided, it is unsupported by Ohio’s
Declaratory Judgment Act. Accordingly, I concur in the majority’s judgment.
                               __________________
       BROWN, C.J., dissenting.
                                   Introduction
       {¶ 28} In this case, Michael Scott, who has been sentenced to death, does
not ask to stay the executioner’s hand, but instead prays that the tools used to
terminate his life will be humane. At the heart of his plea is a question that probes
our common conscience: whether we will ensure that the delivery of death does
not needlessly inflict severe pain upon those we have condemned. Cases such as
this are the measuring stick of our civilization, in which we stake the boundaries
of our government’s obligation to protect the weakest, the least popular, and the
worst of its members.
       {¶ 29} The federal court that is considering Scott’s case has asked us a
question of Ohio law: whether there is a court in Ohio in which Scott may seek to
enforce his rights regarding the amount of risk, pain, and suffering that he will
endure during his execution.
       {¶ 30} The majority today summarily answers “no.”
       {¶ 31} I dissent.
       {¶ 32} It is unthinkable that there could be no judicial forum in Ohio
within which to explore the legal ambit of humane execution. Ohio has sentenced
Scott to death, and Ohio has provided the means and guidelines under which he
will die. Ohio must also take the responsibility of ensuring that the method of
death does not violate Scott’s remaining rights.




                                         10
                                      January Term, 2010




         {¶ 33} The majority abdicates this court’s responsibility to federal courts
to hear and settle this matter. In doing so, we have shirked our duties to enforce
and interpret an Ohio statute, Ohio’s Constitution, and the United States
Constitution. Worse, we have rendered unenforceable the General Assembly’s
statutory mandate that death shall be administered “quickly and painlessly,” and
we have foreclosed from consideration whether Ohio’s Constitution provides
greater protection from pain and suffering than the federal Constitution.
                                             Analysis
         {¶ 34} Scott has the right to a quick and painless death.1                              R.C.
              2
2949.22(A) provides that the drug protocol “shall” be administered in such a
manner as to “quickly and painlessly cause death.”


1. {¶ a} In her concurring opinion, Justice O’Connor writes that while R.C. 2949.22(A) “imposes
a duty upon the individual administering the lethal-injection protocol * * * it does not plainly
create any right to a quick and painless death.” (Emphasis sic.) ¶ 20 (O’Connor, J., concurring).
I disagree. “A duty is the invariable correlative of that legal relation which is most properly
called a right or claim.” Hohfeld, Some Fundamental Legal Conceptions as Applied in Judicial
Reasoning (1913), 23 Yale L.J. 16, 33. Black's Law Dictionary defines duty as “[a] legal
obligation that is owed or due to another and that needs to be satisfied; an obligation for which
somebody else has a corresponding right.” (Emphasis added.) Black's Law Dictionary (9th
Ed.2009) 580. See also Marion Cty. Bar Assn. Commt. v. Marion Cty. (1954), 162 Ohio St. 345,
354, 55 O.O. 205, 123 N.E.2d 521, quoting Province of Tarlac v. Gale, 26 Philippine 338, 351 (“
‘Wherever there is a duty there is a corresponding right; and whenever a duty is laid upon an
official there is another official or person who has the right to enforce the performance of the
duty’”).
    {¶ b} I agree that there are legitimate concerns as to the appropriate time that a challenge to the
lethal-injection protocol might be ripe for adjudication. I do not find that issue relevant to the
question asked of us by the federal court. The federal court did not ask us when a challenge based
on R.C. 2949.22 to Ohio’s lethal-injection protocol is ripe for adjudication in an Ohio court, but
rather whether such a challenge may be made in an Ohio court. In my view, the issue before us
concerns the manner, forum, and procedures in which Ohio’s lethal-injection protocol may be
challenged in an Ohio court as being inconsistent with the mandate enacted by the General
Assembly. I cannot assent to the majority’s determination that no forum or procedures exist in
which an Ohio court may interpret the statutory “quick and painless” language included by the
General Assembly in R.C. 2949.22, nor can I agree that this issue of interpretation should be left
to the federal courts.

2. {¶ a} R.C. 2949.22 provides:
   {¶ b} “(A) Except as provided in division (C) of this section, a death sentence shall be executed
by causing the application to the person, upon whom the sentence was imposed, of a lethal




                                                  11
                                  SUPREME COURT OF OHIO




         {¶ 35} This statutory right provides greater protection against pain and
suffering than the Eighth Amendment against cruel and unusual punishment. The
United States Supreme Court has explained that “[s]imply because an execution
method may result in pain, either by accident or as an inescapable consequence of
death, does not establish the sort of ‘objectively intolerable risk of harm’ that
qualifies as cruel and unusual” under the Eighth Amendment. Baze v. Rees
(2008), 553 U.S. 35, 50, 128 S.Ct. 1520, 170 L.Ed.2d 420, quoting Farmer v.
Brennan (1994), 511 U.S. 825, 846, 114 S.Ct. 1970, 128 L.Ed.2d 811. In order
for a petitioner to succeed on an Eighth Amendment challenge, he must show that
an “alternative procedure [is] feasible, readily implemented, and [will] in fact
significantly reduce a substantial risk of severe pain.” Baze at 52. Thus, the
burden on a petitioner to establish an Eighth Amendment violation is worlds apart
from establishing a violation of the affirmative requirement in R.C. 2949.22(A)
that the warden shall ensure that an execution be quick and painless.
         {¶ 36} Accordingly, Ohio courts are obligated to enforce the policy
announced in this statute and determine whether the lethal-injection protocol
meets the criteria of R.C. 2949.22, independent of constitutional considerations.
Through R.C. 2949.22, the General Assembly has provided that those condemned
to death should experience a quick and painless death. Ohio courts are duty-
bound to ensure that that policy is realized.
         {¶ 37} Yet today’s holding closes the courthouse doors to death-row
petitioners who wish to protect their right to a quick and painless death under R.C.
2949.22.



injection of a drug or combination of drugs of sufficient dosage to quickly and painlessly cause
death. The application of the drug or combination of drugs shall be continued until the person is
dead. The warden of the correctional institution in which the sentence is to be executed or another
person selected by the director of rehabilitation and correction shall ensure that the death sentence
is executed.” (Emphasis added.)




                                                 12
                                 January Term, 2010




       {¶ 38} Federal courts will not protect that right. The Sixth Circuit has
recently ruled that federal courts cannot enforce R.C. 2949.22, because the statute
does not “create[] a federal right protected by the Fourteenth Amendment.”
Cooey v. Strickland (C.A.6, 2010), 604 F.3d 939, 945.
       {¶ 39} If Ohio’s courthouses too are closed to claims under R.C.
2949.22—as the majority says they are—the statute is rendered meaningless and
unenforceable, and the right, though laudable, becomes hollow.
       {¶ 40} Further, Ohio courts must resolve whether those persons facing
execution are entitled to greater protections under the Ohio Constitution than they
are provided by the federal Constitution. In Arnold v. Cleveland (1993), 67 Ohio
St.3d 35, 616 N.E.2d 163, we held that Ohio’s Constitution has force independent
of the United States Constitution. We explained that our state Constitution is not
limited to the protections offered by its federal counterpart, and Ohio could
“accord[] greater civil liberties and protections to individuals and groups.” Id. at
paragraph one of the syllabus.
       {¶ 41} We have never directly held that the standard for a method-of-
execution challenge under the Eighth Amendment of the United States
Constitution announced in Baze v. Rees is the same as that required under Section
9, Article I of the Ohio Constitution, which prohibits “cruel and unusual
punishments.”
       {¶ 42} In a case that predates Baze v. Rees, we addressed a method-of-
death challenge to lethal injection: “[Appellant] argues that the death penalty is
unconstitutional under the federal and Ohio Constitutions because the methods
used to carry out the sentence, electrocution or lethal injection, are cruel and
unusual punishment. * * * [Appellant] fails to cite any case in which lethal
injection has been found to be cruel or unusual punishment. This proposition of




                                         13
                                  SUPREME COURT OF OHIO




law is overruled.” State v. Carter (2000), 89 Ohio St. 3d 593, 608, 734 N.E.2d
345.3
        {¶ 43} Carter predated the holding in Baze v. Rees regarding the method
by which a defendant may challenge the method of death for purposes of the
Eighth Amendment.            Accordingly, we have never determined whether the
standard under our Constitution is the same as the standard announced in Baze. In
State v. Trimble, 122 Ohio St. 3d 297, 2009-Ohio-2961, 911 N.E.2d 242, ¶ 279,
we cited Carter in summarily overruling a challenge to the lethal-injection
method. We also cited Baze, noting that Baze upheld Kentucky’s lethal-injection
protocol, which is “similar” to Ohio’s.                  Id.    However, we have never
independently examined our protocol, nor have we expressly adopted the Baze
analysis as the standard for Ohio’s protections against cruel and unusual
punishment.
        {¶ 44} Thus, nothing in our precedent forecloses a death-row convict from
raising a new constitutional argument of independent force under the Ohio
Constitution. Because this issue of purely state law is a novel one, federal courts
should abstain from ruling on whether the lethal-injection protocol meets the
protections afforded by Ohio’s Constitution. See Minnesota v. Natl. Tea Co.
(1940), 309 U.S. 551, 557, 60 S.Ct. 676, 84 L.Ed. 920 (“It is fundamental that
state courts be left free and unfettered by us in interpreting their state
constitutions”); S.Ct.Prac.R. 18.1 (providing that a federal court may certify


3. I note that Carter has become the seminal opinion as to method-of-execution challenges. This
is regrettable, because the sole reasoning in Carter was that the defendant had not cited any cases
finding lethal injection to be cruel and unusual; therefore the method was permissible. Despite the
lack of analysis in Carter, we have cited its holding, time and time again, to summarily rebuff
constitutional challenges to the method of lethal injection. See, e.g., State v. Adams, 103 Ohio
St.3d 508, 2004-Ohio-5845, 817 N.E.2d 29, ¶ 131; State v. Frazier, 115 Ohio St.3d 139, 2007-
Ohio-5048, 873 N.E.2d 1263, ¶ 245; State v. Trimble, 122 Ohio St.3d 297, 2009-Ohio-2961, 911
N.E.2d 242, at ¶ 279; State v. Craig, 110 Ohio St.3d 306, 2006-Ohio-4571, 853 N.E.2d 621, at ¶
126.




                                                14
                                January Term, 2010




questions of state law “for which there is no controlling precedent in the decisions
of this Supreme Court”).
       {¶ 45} Thus, by refusing to offer an Ohio forum for method-of-execution
challenges, the majority has abandoned the core mission of Ohio courts of
determining the scope and protections afforded by Ohio’s Constitution. Worse,
the result is that a death-row petitioner has no forum in which to seek protection
from cruel and unusual punishment under the Ohio Constitution.
       {¶ 46} Ohio courts should consider a convict’s rights under the Eighth
Amendment to the United States Constitution as well. In the context of death, a
petitioner should be permitted to challenge methods of execution that carry an “
‘objectively intolerable risk of harm’ ” or a “ ‘substantial risk of serious harm.’ ”
Baze, 553 U.S. at 52, 128 S.Ct. 1520, 170 L.Ed.2d 420, quoting Farmer, 511 U.S.
at 842, 114 S.Ct. 1970, 128 L.Ed.2d 811. It is, by now, well settled that Ohio
courts are arbiters of questions raised under the United States Constitution and
enjoy the inherent power to apply its provisions.        Thus, when the issue is
presented to them, Ohio courts should not shy away from the duty to hear and
determine a condemned person’s Eighth Amendment challenge to lethal injection.
       {¶ 47} Given the litany of laws governing the execution of human beings,
it is unsurprising that there are, in fact, avenues in Ohio in which to raise such
claims. Indeed, in this case, the federal court was faced with so many different
options – venues that had already been used or recommended in Ohio, that it
asked us to straighten them all out.
       {¶ 48} As the federal court noted, challenges to the method of execution
have been raised in different settings and at different stages and have met
different fates. See, e.g., State v. Scott, 5th Dist. No. 2005CA00028, 2006-Ohio-
257, ¶ 59-60 (issue first raised in court of appeals in postconviction-relief
proceeding; rejected as waived); State v. Jackson, 11th Dist. No. 2004-T-0089,
2006 Ohio 2651, ¶ 149 (issue raised and rejected in trial court in postconviction;



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appellate court held that “a postconviction proceeding is not the proper legal
context in which to litigate this issue; instead, this type of issue should be raised
in a declaratory judgment or habeas corpus action”); State v. Rivera, 9th Dist.
Nos. 08CA009426 and 08CA009427, 2009-Ohio-1428 (pretrial motion for
dismissal of death-penalty specifications on ground that method of execution is
unconstitutional granted by trial court; appeal by state dismissed as not involving
final, appealable order); Otte v. Strickland, Franklin C.P. No. 08-CV-013337 (16
death-row inmates seek declaratory judgment in common pleas court; case is
currently stayed).
       {¶ 49} In my opinion, there are at least two good methods by which a
death-row petitioner may challenge the method of execution in Ohio courts.
       {¶ 50} First is declaratory judgment under R.C. Chapter 2721.               A
declaratory-judgment action would allow petitioners to raise all potential
constitutional and statutory issues in one action.       And it would provide a
framework for the issuance of injunctive relief should an Ohio court determine
that the lethal-injection procedure falls short of the requirements of law. A
declaratory-judgment action permits evidentiary discovery and hearings, which
would create a thorough record of facts regarding the pain and suffering involved
in various methods of execution. And it is a vehicle that is already in use to
adjudicate method-of-execution claims. In Ohio, there is the case of Otte v.
Strickland, Franklin C.P. No. 08-CV-013337. Baze v. Rees was a declaratory-
judgment action originating in Kentucky. Id., 553 U.S. at 46, 128 S.Ct. 1520, 170
L.Ed.2d 420. Many other states have approved, suggested, or used declaratory-
judgment actions as a vehicle to litigate constitutional and statutory challenges to
methods of execution. See Brown v. Vail (2010), 169 Wash.2d 318, 237 P.3d
263; Ark. Dept. of Corr. v. Williams (2009), 2009 Ark. 523, ___ S.W.3d ___; Ex
parte Alba (Tex.Crim.App.2008), 256 S.W.3d 682, 686; Smith v. State (Jan. 4,
2010), Mont.Dist. No. BDV-2008-303.



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       {¶ 51} Under the Ohio Declaratory Judgment Act, “courts of record may
declare rights, status, and other legal relations whether or not further relief is or
could be claimed.” R.C. 2721.02(A). The Act “provides a means by which
parties can eliminate uncertainty regarding their legal rights and obligations.”
Mid-Am. Fire & Cas. Co. v. Heasley, 113 Ohio St.3d 133, 2007-Ohio-1248, 863
N.E.2d 142, ¶ 8. The declaratory-judgment statutes are “remedial and shall be
liberally construed and administered.” R.C. 2721.13.
       {¶ 52} A declaratory-judgment action would allow the creation of a
record on which a court may base its ruling.          “An action for a declaratory
judgment pursuant to R.C. Chapter 2721 is a civil action,” Sterling Drug, Inc. v.
Wickham (1980), 63 Ohio St.2d 16, 21, 17 O.O.3d 10, 406 N.E.2d 1363, and
issues of fact “may be tried and determined in the same manner as issues of fact
are tried and determined in other civil actions in the court in which the action or
proceeding is pending.” R.C. 2721.10. See also Civ.R. 57 (“The procedure for
obtaining a declaratory judgment * * * shall be in accordance with these rules”).
In Baze v. Rees, the Supreme Court noted that the trial court hearing on
Kentucky’s lethal-injection protocol involved “a 7-day bench trial during which
the trial court received the testimony of approximately 20 witnesses, including
numerous experts.” Id., 553 U.S. at 46, 128 S.Ct. 1520, 170 L.Ed.2d 420.
       {¶ 53} For those reasons, I believe that a declaratory-judgment action is
the proper avenue in Ohio for litigating Scott’s claims.
       {¶ 54} Second, absent a declaratory-judgment action, a writ of mandamus
may be available. A writ of mandamus would ensure that the warden fulfills his
duty to carry out the death penalty quickly and painlessly under R.C. 2949.22.
       {¶ 55} In order to gain entitlement to the writ, the petitioner “must
establish a clear legal right to the requested relief, a corresponding clear legal duty
on the part of respondents to provide it, and the lack of an adequate remedy in the
ordinary course of law.” State ex rel. Gaylor, Inc. v. Goodenow, 125 Ohio St.3d



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407, 2010-Ohio-1844, 928 N.E.2d 728, ¶ 15. A petitioner should be granted a
forum in which to argue that all of those factors are met. R.C. 2949.22(A)
provides that the drug protocol “shall” “quickly and painlessly cause death” and
that the warden “shall ensure that the death sentence is executed.” Thus, the
statute seems to place an affirmative legal duty upon the warden and to confer a
right on the inmate to a quick and painless death. If a declaratory-judgment
action is not available, mandamus could be appropriate, because petitioners would
have no remedy available at law.
                                   Conclusion
        {¶ 56} My opinion today does not address the merit, or lack thereof, of
Scott’s substantive arguments concerning lethal injection as a means of carrying
out his death sentence. But I would hold that a failure to provide a forum in
which Scott’s rights may be contested results in Scott being summarily deprived
of those rights.
        {¶ 57} For the foregoing reasons I would hold that Scott may challenge
his method of execution in a declaratory-judgment action. Accordingly, I dissent.
                               __________________
        PFEIFER, J., dissenting.
        {¶ 58} It is correct, in response to the direct question we have been asked
to answer, to state that Ohio does not have an established legal process for a
capital defendant to challenge the precise method and drug protocol that will be
used by the state to execute that defendant. We are, however, bound by Section 9,
Article I of the Ohio Constitution to ensure that cruel and unusual punishment is
not inflicted. As a society, our comprehension of the meaning of those words has
evolved. The understanding of the state officials responsible for carrying out the
mandate of death has been, and continues to be, re-examined with respect to the
exact drugs, procedures, and personnel needed to comply with statutory
and constitutional mandates.



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       {¶ 59} It is not our duty to lay out a roadmap for protracted challenges to
Ohio's execution protocol by every capital defendant. Section 2, Article IV of the
Ohio Constitution, however, grants jurisdiction to this court over the five great
writs, Section 2(B)(1)(a) through (e), and "[i]n any cause on review as may be
necessary to its complete determination." Section 2(B)(1)(f). I would deem
Article IV to provide an avenue for a capital defendant to challenge an execution
protocol. Is that a satisfactory remedy? That is the question we return to the
federal courts.
                             __________________
       David L. Doughten and Jeffrey J. Helmick, for petitioner.
                           ______________________




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