In the Supreme Court of Georgia



                                                     Decided: May 19, 2014


                           S14A0092. OWENS et al. v. HILL


       HINES, Presiding Justice.

       This case presents the question of whether it is unconstitutional for the

State of Georgia to maintain the confidentiality of the names and other

identifying information of the persons and entities involved in executions,

including those who manufacture the drug or drugs to be used.1 We hold that

it is not, and we reverse the ruling of the Superior Court of Fulton County in

which it granted an interlocutory injunction prohibiting the execution of Warren

Lee Hill with a drug from a confidential source in order to consider that

question.

       Hill was convicted of murdering a fellow inmate in the Lee County

Correctional Institute by beating him to death with a sink leg embedded with



       1
         The State intended to use pentobarbital for Hill’s scheduled execution, and the evidence that
we discuss below addresses that particular drug. Our holding here would apply to any other drug
to the extent that such a drug might be comparable to pentobarbital in relevant ways.
nails. The jury sentenced him to death, and this Court affirmed. See Hill v.

State, 263 Ga. 37 (427 SE2d 770) (1993). Hill has been unsuccessful in his

multiple state and federal habeas proceedings. See Turpin v. Hill, 269 Ga. 302

(498 SE2d 52) (1998) (state habeas appeal); Head v. Hill, 277 Ga. 255 (587

SE2d 613) (2003) (state habeas appeal); Hill v. Schofield, 608 F3d 1272 (11th

Cir. 2010) (federal habeas appeal in which a three-judge panel vacated Hill’s

death sentence); Hill v. Schofield, 625 F3d 1313 (11th Cir. 2010) (vacating the

decision of the three-judge panel and ordering a rehearing en banc); Hill v.

Humphrey, 662 F3d 1335 (11th Cir. 2011) (denying federal habeas relief on

rehearing en banc), cert. denied, __ U. S. __ (132 SCt 2727, 183 LE2d 80)

(2012); In re Hill, 715 F3d 284 (11th Cir. 2013) (denying Hill’s request for

permission to file a second federal habeas petition); Hill v. Humphrey, __ U. S.

__ (133 SCt 1324, 185 LE2d 233) (2013) (denying a petition for a writ of

certiorari arising out of second state habeas proceedings); Hill v. Humphrey, __

U. S. __ (134 SCt 115, 187 LE2d 84) (2013) (denying petition for a writ of

certiorari arising out of third state habeas proceedings); In re Hill, __ U. S. __

(134 SCt 118, 187 LE2d 265) (2013) (denying an original petition for a writ of

certiorari). Hill’s case has also been before this Court two times previously on

                                        2
issues related to the execution method in Georgia. See Hill v. Owens, 292 Ga.

380 (738 SE2d 56) (2013) (addressing the relationship of Georgia’s

Administrative Procedure Act to the selection of lethal injection drugs and

dissolving a stay of execution previously issued by this Court); Cook v. Owens,

Case No. S13W0834 (Feb. 21, 2013) (unpublished decision denying an

application for discretionary appeal by Hill and others regarding the denial of

an injunction against the prison pharmacy).

       The sentencing court issued Hill’s latest execution order on July 3, 2013,

setting Hill’s execution for the one-week period of July 13-20, 2013. See

OCGA § 17-10-40 (providing for renewed execution orders). That execution

order was filed after the July 1, 2013, effective date of a new law designating

“identifying information” concerning the persons and entities that participate in

executions, including those who participate in the procurement of execution

drugs, to be a “confidential state secret.” OCGA § 42-5-36 (d) (2).2 Hill filed


       2
        OCGA § 42-5-36 (d) (as amended effective July 1, 2013), referred to in the discussion
below as the execution-participant confidentiality statute, provides as follows:

       (d) (1) As used in this subsection, the term “identifying information” means any
       records or information that reveals a name, residential or business address, residential
       or business telephone number, day and month of birth, social security number, or
       professional qualifications.


                                                  3
suit in the Superior Court of Fulton County, naming the Commissioner of

Corrections and others as defendants (hereinafter “the State”) and seeking an

interlocutory injunction, a permanent injunction, a declaratory judgment, a writ

of mandamus, and “[s]ealed discovery of the identity of the compounding

pharmacy and the supply chain and manufacturer(s) of any and all ingredients

used to produce the lethal drug compound to be injected into Warren Hill.” Hill

alleged that the execution-participant confidentiality statute was unconstitutional

on various grounds in that it wrongly denied him information revealing “the

identities of the manufacturer, individuals or entities in the chain of supply,

prescriber, compounding pharmacy, or pharmacist responsible for making the

drugs available to the Department of Corrections for Mr. Hill’s execution.”

Hill’s complaint also stated that it was seeking “to enforce the prohibitions

against cruel and unusual punishment under Georgia and Federal Law.”




      (2) The identifying information of any person or entity who participates in or
      administers the execution of a death sentence and the identifying information of any
      person or entity that manufactures, supplies, compounds, or prescribes the drugs,
      medical supplies, or medical equipment utilized in the execution of a death sentence
      shall be confidential and shall not be subject to disclosure under Article 4 of Chapter
      18 of Title 50 or under judicial process. Such information shall be classified as a
      confidential state secret.

                                                4
       The Superior Court granted injunctive relief, which it described in various

ways including as a stay of execution,3 ruling that Hill had shown that there was

a substantial likelihood of his success on several of his constitutional challenges

to the statute. This Court granted the State’s application for discretionary

appeal4 regarding the Superior Court’s granting of injunctive relief and ordered

the parties to address the following questions on appeal:

       (1) Is this case moot due to the expiration of the compounded
       pentobarbital at issue and uncertainty as to whether and where the
       State will obtain pentobarbital to use if another execution date is
       scheduled for Hill?

       (2) Considering that the Superior Court of Fulton County has
       neither appellate nor habeas jurisdiction to review the order of
       execution entered by the sentencing court, did it properly have
       jurisdiction to stay the order of execution entered by the sentencing
       court?

       (3) Should questions about the constitutionality of OCGA §
       42-5-36 (d) be avoided in light of the availability of other forms of
       discovery to Hill, by which Hill might, for instance, obtain

       3
           We discuss the exact nature of the injunctive relief at issue in Division 2.
       4
         The granting or denying of an interlocutory injunction is generally directly appealable. See
OCGA 5-6-34 (a) (4). This case involves a form of interlocutory injunction, regardless of whether
the relief granted was properly referred to by the parties and the Superior Court as a stay of
execution. See Zant v. Dick, 249 Ga. 799, 799 (294 SE2d 508) (1982) (holding that a stay of
execution is the equivalent of an interlocutory injunction, at least where there has been a hearing).
However, under the Prisoner Litigation Reform Act, any appeal in a civil case that was initiated by
a prisoner must come by discretionary application, regardless of which party is appealing. See Ray
v. Barber, 273 Ga. 856, 856-857 (1) (548 SE2d 283) (2001) (applying OCGA § 42-12-1 et seq.).

                                                   5
      production of a sample of the actual compounded pentobarbital to
      be used in his execution?

      (4) Did the Superior Court of Fulton County err by granting a stay
      of Hill’s execution based on his challenge to the constitutionality of
      OCGA § 42-5-36 (d)?

For the reasons set forth below, we conclude that this case is not moot, that the

Superior Court had limited but valid jurisdiction over this matter, that the

possible availability of forms of discovery beyond what is forbidden by the

execution-participant confidentiality statute does not affect this case, that the

execution-participant confidentiality statute is not unconstitutional, and that the

Superior Court erred by granting what amounted to an interlocutory injunction.

Accordingly, we reverse the Superior Court’s ruling and dissolve the injunction

that prohibited Hill’s execution with a drug produced by undisclosed persons

and entities.

      1. The injunctive relief granted in this case enjoins the use of a specific

batch of drugs from a specific, although undisclosed, compounding pharmacy.

Because that batch of drugs has now expired and cannot be used in an execution,

it is arguable that the question of the appropriateness of the injunctive relief has

become moot. However, the parties agree that if this case were dismissed as


                                         6
moot the State would once again obtain an execution drug and refuse to disclose

its source, which the Superior Court would presumably enjoin the use of on the

same grounds and which would expire before this Court were able to resolve the

matter on appeal. Thus, this case presents a classic example of a matter that is

capable of repetition yet evading review. See Babies Right Start v. Ga. Dept.

of Pub. Health, 293 Ga. 553, 556 (2) (c) (748 SE2d 404) (2013) (noting the

“well-established but narrow exception to mootness for disputes that are

‘capable of repetition, yet evading review’” (quoting Fed. Election Comm. v.

Wisconsin Right to Life, Inc., 551 U. S. 449, 462 (II) (127 SCt 2652, 168 LE2d

329) (2007)). Accordingly, we will not dismiss this case as moot.

      2. The execution order in this case was filed by the sentencing court, the

court that conducted Hill’s criminal trial. See OCGA § 17-10-40 (providing for

renewed execution orders). The sentencing court’s execution order in Hill’s

case contained nothing that dictated what drug or drugs should be used in his

execution. In fact, it would have been inappropriate for the sentencing court’s

execution order to contain such details about the method of execution, because

Georgia law specifically delegates the task of deciding such details to the

Department of Corrections. See OCGA § 17-10-44 (“The Department of

                                       7
Corrections shall provide a place for execution of the death sentence and all

necessary apparatus, machinery, and appliances for inflicting the penalty of

death.”); Hill, 292 Ga. at 387 (2) (b) (“The Code imposes on the Commissioner

and the Department a variety of duties specific to managing executions, among

which choosing the drug or drugs is just one.”). The issues of what drug or

drugs will be used in Hill’s execution, what person or entities are involved in

procuring the drug or drugs, and how information about the drug or drugs is

managed do not concern the validity of Hill’s death sentence; instead, they

concern merely how his death sentence will be carried out. Thus, Hill properly

brought his claims regarding the procurement of the drug to be used in his

execution and a possible injunction prohibiting the use of that particular drug

against the state officers involved in those matters rather than making some sort

of motion in the sentencing court maintaining jurisdiction over his sentence of

death. Furthermore, venue was proper in the superior court of the county where

those state officers were located, which was Fulton County. See OCGA § 9-10-

30 (“All actions seeking equitable relief shall be filed in the county of the




                                        8
residence of one of the defendants against whom substantial relief is

prayed. . . .”).5

       Our reasoning here applies in a similar fashion to the question of whether

this matter should have been raised in a habeas petition in the county where Hill

is imprisoned. A challenge concerning the specific drug or drugs to be used to

carry out a sentence of death is analogous to a challenge to the conditions of

confinement meted out by a state officer under the authority of a sentence of

imprisonment. Neither such challenge attacks a criminal sentence itself.

Instead, each attacks only the manner in which a state officer may choose to

enforce a criminal sentence. See McNabb v. Commr. Ala. Dept. of Corr., 727

F3d 1334, 1344 (IV) (C) (11th Cir. 2013) (“Usually, an inmate who challenges

a state’s method of execution is attacking the means by which the State intends

to execute him, which is a circumstance of his confinement. It is not an attack

on the validity of his conviction and/or sentence.”). A habeas petition may only



       5
          This Court has previously addressed claims regarding specific methods of lethal injection
as part of sentencing court proceedings; however, this Court has never discussed the jurisdiction of
those sentencing courts to address the issue. See, e.g., Rice v. State, 292 Ga. 191, 211-212 (10) (733
SE2d 755) (2013) (addressing the constitutionality of a particular method of lethal injection on direct
appeal). See State v. Outen, 289 Ga. 579, 582 (714 SE2d 581) (2011) (holding that jurisdictional
issues not discussed on appeal in one case do not constitute precedent in later cases regarding such
jurisdiction).

                                                  9
allege constitutional defects in a conviction or sentence itself, not defects in the

manner in which a sentence is carried out by various state officers. See OCGA

§ 9-14-42 (a) (“Any person imprisoned by virtue of a sentence imposed by a

state court of record who asserts that in the proceedings which resulted in his

conviction there was a substantial denial of his rights under the Constitution of

the United States or of this state may institute a proceeding under this article

[governing habeas petitions].”) Accordingly, we hold that challenges to the

choice of drug or drugs to be used to carry out death sentences, which choice

again is the responsibility of the Department of Corrections, along with related

claims concerning the manner in which such drugs are procured and how

information about the procurement process is managed, should be raised against

the state officers responsible for such matters in the superior court where venue

is appropriate for suit against them, rather than in a habeas court. See Hill v.

McDonough, 547 U. S. 573, 580 (II) (126 SCt 2096, 165 LE2d 44) (2006)

(holding that federal lethal injection claims should be brought in a civil rights

action rather than as a habeas claim).6


       6
        Our previous decisions assumed that claims regarding specific methods of lethal injection
were appropriately raised in the habeas court; however, we never discussed the question of the
habeas court’s jurisdiction. See, e.g., Hall v. Terrell, 285 Ga. 448, 457 (III) (679 SE2d 17) (2009).

                                                 10
       We emphasize, however, that the Superior Court of Fulton County is the

appropriate court under circumstances like this only insofar as that court might

enjoin state officers over which it has personal jurisdiction from using or

directing the use of a specific drug or drugs to carry out a death sentence or

might order those state officers to disclose related information within their

control. An injunction in a case like this is legally different from a stay of the

sentencing court’s execution order, even if the practical result in a given case

might be the same. See Hill, 547 U. S. at 580-581 (II) (“[Clarence] Hill’s

challenge appears to leave the State free to use an alternative lethal injection

procedure. Under these circumstances a grant of injunctive relief could not be

seen as barring the execution of [Clarence] Hill’s sentence.”). Under such

circumstances, rulings of the Superior Court of Fulton County may affect the

immediate feasibility of the State’s carrying out the sentencing court’s execution

order insofar as enjoining the use of a particular drug or drugs could, as

happened here, incidentally complicate or delay the State’s ability to comply

with the sentencing court’s order. But it is not a direct stay of the execution



See Outen, 289 Ga. at 582 (holding that jurisdictional issues not discussed on appeal in one case do
not constitute precedent in later cases regarding such jurisdiction).

                                                11
order itself. Compare OCGA § 9-5-2 (“Equity will take no part in the

administration of criminal law. It will neither aid criminal courts in the exercise

of their jurisdiction, nor will it restrain or obstruct them.”). However, we hold

that, under the right circumstances, the Superior Court of Fulton County would

have the authority in protecting its own jurisdiction to enjoin state officers over

which it has personal jurisdiction from using or directing the use of specific

drugs in an execution. See Ga. Const., Art. VI, Sec. I, Par. IV (“Each court may

exercise such powers as necessary in aid of its jurisdiction or to protect or

effectuate its judgments. . . .”). Such circumstances obtain here, because there

would be no other means of seeking an adequate remedy in the sentencing court.

Nevertheless, because the Superior Court erred by purporting, at least in part,

to issue a stay of the sentencing court’s execution order, we would at a

minimum need to remand this case for that court to correct its

mischaracterization of what should have been described as an interlocutory

injunction barring the State only from using or directing the use of the specific

drug at issue. However, as the discussion below explains, we hold that no

injunctive relief of any kind was justified in this case and, therefore, we need not

remand the case for clarification of the particular form of relief at issue.

                                        12
      3. We asked the parties to address whether the constitutional questions at

issue in this case could be avoided by providing Hill with forms of discovery not

forbidden by the execution-participant confidentiality statute, such as providing

him with a sample of the drug to be used in his execution. We suppose that

there could be serious questions about the constitutionality of the confidentiality

statute as applied to a case in which the plaintiff came much closer to presenting

a colorable claim under Baze v. Rees, 553 U. S. 35 (128 SCt 1520, 170 LE2d

420) (2008), which we discuss below. In a case in which the information

shielded by the statute were the only essential missing link for the plaintiff in his

or her proof of an Eighth Amendment claim – that is, a case in which, but for the

unavailability of that information, the record shows that the plaintiff could make

out a claim under the Baze standard – claims that the statutory shield was

unconstitutional might be more viable. Even in such cases, however, the

superior court would have an obligation to consider whether the difficult

constitutional questions might properly be avoided. If other available and

feasible means of discovery could afford a reasonable and adequate opportunity

for the plaintiff in such a case to establish the missing link – production of a

sample of the drug for independent testing, for example – the availability of

                                         13
such discovery mechanisms might well be sufficient to avoid any difficult

constitutional questions. That said, we do not mean to suggest that such

discovery should be routinely available. It would be necessary only in cases in

which the plaintiff had made out a strong Eighth Amendment claim, more

detailed information about the manufacturing of the drug were the essential

missing link in his or her proof of that claim, and the discovery sought were

reasonably likely to supply the missing link. For the reasons explained more

fully below, we conclude that this is no such case.

      4. Finally, we address whether the Superior Court of Fulton County erred

by granting what was in effect an interlocutory injunction barring the State’s use

of his execution drug based on Hill’s constitutional claims. His constitutional

claims concerned the nature of that drug and the statute requiring that

identifying information regarding the persons and entities involved in

executions, including those involved in the procurement of execution drugs,

must be maintained in confidence.         In determining whether to grant an

interlocutory injunction, a trial court should consider whether

      (1) there is a substantial threat that the moving party will suffer
      irreparable injury if the injunction is not granted; (2) the threatened
      injury to the moving party outweighs the threatened harm that the

                                        14
      injunction may do to the party being enjoined; (3) there is a
      substantial likelihood that the moving party will prevail on the
      merits of [his or] her claims at trial; and (4) granting the
      interlocutory injunction will not disserve the public interest.

SRB Investment Svcs, LLLP v. Branch Banking and Trust Co., 289 Ga. 1, 5 (3)

(709 SE2d 267) (2011) (citation omitted). A trial court has discretion in

deciding whether to grant an interlocutory injunction, but that discretion is

abused when it is based on a misunderstanding or a misapplication of the law.

Holton v. Physician Oncology Svcs., LP, 292 Ga. 864, 866-867 (2) (742 SE2d

702) (2013). For the reasons discussed below, we conclude that the Superior

Court abused its discretion in granting what amounted to an interlocutory

injunction in this case.

      (a) Introductory Matters. We begin our discussion of the interlocutory

injunction by providing additional detail regarding Hill’s arguments and the

evidence that he raised in support of it, arguments that the following discussion

and citations to other courts show to be meritless. Pivotal here, we believe, is

the fact that each of Hill’s arguments ultimately centers on his claim that there

is an unconstitutional risk that his execution will amount to cruel and unusual




                                       15
punishment.7 That underlying claim was raised in a somewhat hypothetical

fashion in light of Hill’s argument that he was denied identifying information

about the manufacturer of his execution drug that might have allowed additional

clarity to the claim. However, whether raised directly or in a somewhat

hypothetical fashion, such a claim must include a showing that satisfies the

following threshold requirements set forth by the Supreme Court of the United

States:

       Our cases recognize that subjecting individuals to a risk of future
       harm – not simply actually inflicting pain – can qualify as cruel and
       unusual punishment. To establish that such exposure violates the
       Eighth Amendment, however, the conditions presenting the risk
       must be “sure or very likely to cause serious illness and needless
       suffering,” and give rise to “sufficiently imminent dangers.”
       Helling v. McKinney, 509 U.S. 25, 33, 34-35, 113 S. Ct. 2475, 125
       L. Ed. 2d 22 (1993) (emphasis added). We have explained that to
       prevail on such a claim there must be a “substantial risk of serious
       harm,” an “objectively intolerable risk of harm” that prevents prison
       officials from pleading that they were “subjectively blameless for
       purposes of the Eighth Amendment.” Farmer v. Brennan, 511 U.S.
       825, 842, 846, and n. 9, 114 S. Ct. 1970, 128 L. Ed. 2d 811 (1994).

Baze, 553 U. S. at 49-50 (II) (B) (controlling plurality opinion).8 See O’Kelley

       7
        Hill’s complaint stated that it was brought “to enforce the prohibitions against cruel and
unusual punishment under Georgia and Federal Law.”
       8
          The State claimed in the Superior Court that it had obtained independent laboratory testing
to verify the efficacy of the drug produced by the compounding pharmacy, and it provided a redacted
copy of the report to Hill. Such additional safety measures, if properly demonstrated, would tend

                                                 16
v. State, 284 Ga. 758, 769-770 (4) (670 SE2d 388) (2008) (equating Georgia and

federal constitutional rights regarding the method of lethal injection).

       The parties agree that the State willingly provided Hill with information

indicating that Hill’s execution drug had been manufactured by a compounding

pharmacy, which is a type of pharmacy that produces individually-produced

medications according to the directions provided in individual prescriptions

written by physicians. Hill’s expert admitted that “somewhere around 3 to 4

percent of all drugs dispensed in the U.S. are compounded.” Hill’s expert

alleged that the drugs produced by compounding pharmacies, which are

overseen by state governments rather than the FDA, are of less reliable quality

than drugs produced by major manufacturers. However, he also admitted that

“[n]o one knows” what percentage of the drugs produced by compounding

pharmacies are contaminated. He cited a study by the FDA from 2006 that



to counter a prisoner’s attempt to show that whatever risk of harm at issue “prevents prison officials
from pleading that they were ‘subjectively blameless for purposes of the Eighth Amendment [Cit.].”
Baze, 553 U. S. at 50 (II) (B). We need not address this matter, however, because our discussion of
the nature of compounding pharmacies, which is where Hill’s drug was obtained, resolves the case.
Also, “[a petitioner] must show that the risk is substantial when compared to the known and
available alternatives.” Baze, 553 U. S. at 61 (III) (B). Hill argues that the alternative in his case
would be the use of a pharmacy governed by the Federal Drug Administration. We need not address
the viability or preferability of this alternative, because we conclude that a compounding pharmacy
is an appropriate source for execution drugs.

                                                 17
concluded that 34 percent of the “sterile products” produced by certain

compounding pharmacies that it had surveyed were contaminated. However,

even accepting this figure regarding the contamination of “sterile products,” the

fact remains that sterility is simply a meaningless issue in an execution where,

as the record showed, unconsciousness will set in almost instantaneously from

a massive overdose of an anesthetic, death will follow shortly afterward before

consciousness is regained, and the prisoner will never have an opportunity to

suffer the negative medical effects from infection or allergic reactions from a

possibly non-sterile drug. Particularly unpersuasive is Hill’s expert’s testimony

that certain contaminants also could have the following effect: “Their blood

pressure would drop precipitously, and ultimately it’s possible that they could

die.” Such a side effect obviously would be shockingly undesirable in the

practice of medicine, but it is certainly not a worry in an execution. He also

testified that, with the passage of time following the administration of a

contaminated drug, someone’s temperature could rise, leading to seizures.

However, once again, such a side effect would be irrelevant in an execution

inducing nearly instantaneous unconsciousness and the rapid onset of death

before consciousness is regained. As to other possible defects with Hill’s

                                       18
execution drug, Hill’s expert speculated about possible problems such as visible

precipitates that might form as a result of improper pH and that, if large enough,

might cause intravenous pain or a pulmonary embolism upon injection, a lack

of potency resulting in a lessened effect per dose, and super-potency leading to

complications. However, Hill’s expert gave no clear indication regarding the

level of risk involved, and each of these possible complications appears to be

unlikely to occur, likely identifiable by the compounding pharmacy preparing

the drugs and/or by the person injecting the drug, and/or irrelevant in light of the

massiveness of the dose of the anesthetic involved. This lack of clear testimony

about the level of risk involved should, we believe, be set against the fact that

the execution drug, pentobarbital in this case, is not an uncommon drug and was

produced in the type of pharmacy that is responsible for filling millions of

prescriptions per year in this country. See Sells v. Livingston, 2014 U.S. App.

LEXIS 6128, at *6 (5th Cir. 2014) (precedential effect limited by court rule) (“If

the State here were using a drug never before used or unheard of, whose

efficiency or science was completely unknown, the case might be different.”),

cert. denied and stay denied, 2014 U.S. LEXIS 2393 (April 3, 2014). Hill’s

expert also complained that compounding pharmacies regularly use ingredients

                                        19
obtained in bulk from sources, sometimes foreign, that are not approved by the

FDA to supply ingredients to major manufacturers. To this point he stated in a

written declaration that was attached to Hill’s complaint that “no amount of

finished product testing can build quality into the product,” and he echoed and

explained this idea at the evidentiary hearing as follows: “What happens when

you’re only testing the final finished product is that that can be due purely to

luck, not because it’s a high quality product and so the whole process. [sic]”

However, his focus in making these statements was at least largely on “sterility,”

which again is simply irrelevant in the context of an execution. Furthermore,

we again note that compounding pharmacies fill millions of prescriptions each

year for medical use, which places Hill’s indictment of them as an industry into

a highly unfavorable perspective.

      Thus, even fully crediting Hill’s factual claims regarding compounding

pharmacies, this case presents merely the fact that there is some risk that a lack

of sterility could lead to symptoms that are irrelevant to a person being executed,

that there is an undetermined risk that a compounding pharmacy acting in its

routine role of producing a well-known medication according to the directions

in a prescription will fail to produce an effective drug free of visible precipitates,

                                         20
and that there is an undetermined risk that, despite the fact that the compounding

pharmacy might determine that it has produced an effective drug for Hill’s

execution, its success would be “due purely to luck” and would not necessarily

be indicative that the pharmacy is likely to produce the same quality of drug for

the typical persons using its drugs, namely medical patients. Furthermore, Hill

has utterly failed to show with any specificity how learning the identity of the

specific compounding pharmacy involved in his case, even assuming that it has

had problems producing some medications in the past, would substantially

improve his factual showing in support of his underlying Eighth Amendment

claim. In this light and in view of Hill’s ultimate burden to show that the drug

to be used in his execution creates a “substantial risk of serious harm,” is “sure

or very likely to cause serious illness and needless suffering,” or is likely to

create “sufficiently imminent dangers” in a way that shows an “intolerable risk

of harm” that prevents the State from asserting that it is “subjectively blameless

for purposes of the Eighth Amendment,” Baze, 553 U. S. at 49-50 (II) (B)

(controlling plurality opinion) (citation and punctuation omitted), we now turn

to an application of the standards for an interlocutory injunction.



                                       21
      (b) Threat to the Moving Party. As we noted above, the essential threat

to Hill in this case, if any, is the threat that his execution would amount to

unconstitutionally cruel and unusual punishment. This threat must be measured

by the legal standard that would be applied to such a claim if it were more fully

litigated and by the quality of Hill’s showing that he ultimately could support

such a claim factually. As the discussion of Hill’s factual presentation in the

Superior Court above demonstrates, Hill’s factual assertions fall far short of

satisfying the legal standard applied under the Eighth Amendment, which

involves a showing of a “substantial risk of serious harm” that is “sure or very

likely to cause serious illness and needless suffering.” Baze, 553 U. S. at 49-50

(II) (B) (controlling plurality opinion) (citation and punctuation omitted). In

this regard we echo the Supreme Court of the United States in holding that such

“speculation” regarding a possible threat of harm to Hill was insufficient to

support an interlocutory injunction. Brewer v. Landrigan, __ U. S. __, __ (131

SCt 445, 178 LE2d 346) (2010) (vacating a temporary restraining order that was

based on the claim that a drug from a foreign source created an unconstitutional

risk of harm to the prisoner). See also Powell v. Thomas, 784 FSupp.2d 1270,

1283 (B) (2) (M.D. Ala. 2011) (“Given the failure of Williams to establish a

                                       22
substantial likelihood that he can succeed on his claim that the use of

pentobarbital will ‘very likely . . . cause serious illness and needless suffering,’

Baze, 553 U.S. at 50, resulting in a substantial risk of serious pain, the

irreparable injury is not actual and imminent.”).

       (c) Harm to the Party to be Enjoined. As the Superior Court correctly

noted, quoting from the Supreme Court of the United States, “[t]he State and the

victims of crime have an important interest in the timely enforcement of a

sentence.” Hill, 547 U. S. at 584 (III). Thus, this factor weighs against Hill’s

request for an interlocutory injunction.

       (d) Likelihood of Success on the Merits. The Superior Court ruled on

multiple grounds9 that Hill had shown a substantial likelihood of success on the

merits of his constitutional claims, which each ultimately pointed back to his

underlying claim, even though that underlying claim was hypothetically and/or

conditionally presented, that his execution with drugs manufactured by an

undisclosed compounding pharmacy would violate the constitutional ban on



       9
          We note that not all of the constitutional sub-claims discussed by the parties on appeal were
ruled upon by the Superior Court. However, under the present circumstances we deem it appropriate
in the interest of judicial economy to resolve these related matters of law on appeal. See Mason v.
Home Depot U.S.A., Inc., 283 Ga. 271, 277 (3) (658 SE2d 603) (2008).

                                                  23
cruel and unusual punishment. In light of the discussion above, we conclude

that none of these constitutional claims has any merit.

            (1) Access to the Courts and Due Process. The Superior Court

ruled that the execution-participant confidentiality statute, OCGA § 42-5-36 (d)

(as amended effective July 1, 2013), denied Hill the right to access to the courts

and due process. See Bounds v. Smith, 430 U. S. 817 (97 SCt 1491, 52 LE2d

72) (1977) (recognizing prisoners’ federal constitutional right to access to the

courts). See also Smith v. Baptiste, 287 Ga. 23, 24-25 (1) (694 SE2d 83) (2010)

(holding that the Georgia Constitution lacks any express provision creating a

right to access to the courts); Nelms v. Georgian Manor Condo. Ass’n., 253 Ga.

410, 413 (3) (321 SE2d 330) (1984) (“While it is axiomatic that an individual

must have access to the courts in order to assert the right to self-representation

provided by Art. I, Sec. I, Par. XII, we decline to give this constitutional

provision the expansive interpretation sought by appellant.”). We agree with the

following reasoning of the Court of Appeals for the Fifth Circuit regarding how

such claims should be resolved:

      [P]laintiffs’ access-to-the-courts argument still hinges on their
      ability to show a potential Eighth Amendment violation. One is not


                                       24
      entitled to access to the courts merely to argue that there might be
      some remote possibility of some constitutional violation.

Whitaker v. Livingston, 732 F3d 465, 467 (I) (5th Cir. 2013). Said simply,

losing in court is not the same as being denied access to the courts. See also

Schad v. Brewer, 2013 U.S. Dist. LEXIS 145387, at *29 (VI) (D. Ariz. 2013)

(“Because Plaintiffs do not have a constitutional right to assess whether they

have a claim, they have failed to state a claim for denial of access to the courts

in violation of their due process rights.”). The fact is that Hill’s “claim

concerning lack of access to the courts is belied by the proceedings below and

the instant appeal.” Goddard v. City of Albany, 285 Ga. 882, 886 (4) (684 SE2d

635) (2009). As to his due process claim, his lack of success here, having had

full consideration of his case by the Superior Court in the first instance and then

this Court on appeal, stems not from a lack of access to the courts or to due

process but, instead, simply from the fact that he failed to show that obtaining

the requested information would allow him to make a colorable claim. See

Clemons v. Crawford, 585 F3d 1119, 1129 n.9 (II) (C) (8th Cir. 2009) (“[W]e




                                        25
have located no authority indicating the prisoners have such a due process right

to probe into the backgrounds of execution personnel.”).10

                  (2) Supremacy Clause and Separation of Powers. Our resolution

of Hill’s arguments based on the Supremacy Clause11 and on the constitutional

separation of powers12 between the legislative branch and the judicial branch

follows a similar logic. There is no doubt that a statute enacted by the General

Assembly that denied Hill his constitutional right to be free from cruel and

unusual punishment and improperly interfered with the power of the judiciary


        10
          The dissent asserts that the execution-participant confidentiality statute “has the effect of
creating the very secret star chamber-like proceedings in which this State has promised its citizens
it would not engage.” Dissent, p. 2. We reject this accusation, because Hill has had free and open
access to the court system in Georgia and because his failure to prevail in court has been due simply
to the fact that his claims are so speculative and unfounded.
        11
             The Supremacy Clause of the Constitution of the United States provides as follows:

        This Constitution, and the Laws of the United States which shall be made in
        Pursuance thereof; and all Treaties made, or which shall be made, under the
        Authority of the United States, shall be the supreme Law of the Land; and the Judges
        in every State shall be bound thereby, any Thing in the Constitution or Laws of any
        State to the Contrary notwithstanding.

U. S. Const. Art. VI.
        12
             The Georgia Constitution provides as follows:

        The legislative, judicial, and executive powers shall forever remain separate and
        distinct; and no person discharging the duties of one shall at the same time exercise
        the functions of either of the others except as herein provided.

Ga. Const. of 1983, Art. I, Sec. II, Par. III.

                                                  26
to enforce that right would present serious questions regarding the

unquestionable rule that constitutional provisions take supremacy over

legislative enactments when the two are in irreconcilable conflict and that the

judiciary has an independent, constitutionally-mandated role to ensure that the

constitution is enforced when it is in conflict with a legislative enactment. See

Head v. Stripling, 277 Ga. 403, 404 (1) (590 SE2d 122) (2003) (noting that a

defendant’s constitutional right to present mitigating evidence trumps the

confidentiality law applicable to records maintained by the State Board of

Pardons and Paroles). However, the failure of Hill’s claims here does not stem

from any constitutional defect in the role of the judiciary brought about by the

execution-participant confidentiality statute; instead, as discussed above, the

failure of his claims stems simply from the fact that he failed to make any claims

that could merit relief. See Whitaker, 732 F3d at 467 (I) (addressing a

Supremacy Clause claim and stating, “this claim, too, rises and falls with the

Eighth Amendment claim”).

            (3) First Amendment. The Superior Court concluded that the

execution-participant confidentiality statute violated the First Amendment

guarantee of free speech. Unlike most First Amendment issues, which concern

                                       27
restrictions on the freedom to disseminate information already within one’s own

possession, the issue here concerns the State’s refusal to disclose information

within its control. The Supreme Court of the United States has held:

      The government may classify certain information, establish and
      enforce procedures ensuring its redacted release, and extend a
      damages remedy against the government or its officials where the
      government’s mishandling of sensitive information leads to its
      dissemination.

Florida Star v. B.J.F., 491 U. S. 524, 534 (II) (109 SCt 2603, 105 LE2d 443)

(1989). See also McBurney v. Young, __ U. S. __ (133 SCt 1709, 185 LE2d

758) (2013) (“This Court has repeatedly made clear that there is no

constitutional right to obtain all the information provided by FOIA [Freedom of

Information Act] laws.”); Houchins v. KQED, Inc., 438 U. S. 1, 9 (III) (98 SCt

2588, 57 LE2d 553) (1978) (addressing the alleged right of the media to enter

prisons and stating: “This Court has never intimated a First Amendment

guarantee of a right of access to all sources of information under government

control.”). To the extent that Hill seeks to turn the First Amendment into an

Open Records Act for information relating to executions, his claim clearly fails.

      However, the Supreme Court has also held that certain limited forms of

government proceedings must be held open to the public under First

                                       28
Amendment principles, and it has held that the test for whether the First

Amendment attaches to a given governmental proceeding involves an

assessment of (1) whether access has been granted historically and (2) whether

public access would play a positive role in the functioning of the process. See

Press-Enterprise Co. v. Superior Court of California for the County of

Riverside, 478 U. S. 1, 10-12 (IV) (A) (106 SCt 2735, 92 LE2d 1) (1986). The

Supreme Court has also noted:

      Although many governmental processes operate best under public
      scrutiny, it takes little imagination to recognize that there are some
      kinds of government operations that would be totally frustrated if
      conducted openly.

Id. at 478 U. S. 1, 8-9 (III). Even adopting the extravagant view that the

acquisition of execution drugs is a government process subject to this test, we

still conclude that Hill’s claims fail to satisfy either of these elements. First,

although there has been a tradition of allowing at least some public access to

execution proceedings, there has also been a longstanding tradition of

concealing the identities of those who carry out those executions.             See

California First Amendment Coal. v. Woodford, 299 F3d 868, 876 (I) (A) (9th

Cir. 2002) (“Thus, there is a tradition of at least limited public access to


                                       29
executions.”); Ellyde Roko, Executioner Identities: Toward Recognizing a

Right to Know Who Is Hiding Beneath the Hood, 75 Fordham L. Rev. 2791,

2829 (2007) (arguing for a different practice but acknowledging that,

“[h]istorically, executioners have hidden behind a hood – both literally and

figuratively”).

      The reasons for offering such privacy are obvious, including avoiding the

risk of harassment or some other form of retaliation from persons related to the

prisoners or from others in the community who might disapprove of the

execution as well as simply offering those willing to participate whatever

comfort or peace of mind that anonymity might offer. Although the identity of

the executioner who actually inflicts death upon the prisoner is the most obvious

party in need of such protection, we believe that the same logic applies to the

persons and entities involved in making the preparations for the actual

execution, including those involved in procuring the execution drugs.

      Second, without the confidentiality offered to execution participants by

the statute, as the record and our case law show, there is a significant risk that

persons and entities necessary to the execution would become unwilling to

participate. See Hill, 292 Ga. at 387 (2) (b) (“Due to litigation challenging

                                        30
existing methods of execution and due to other factors, both judicial and

non-judicial, that have affected the availability of certain drugs, the

Commissioner has recently found it necessary or wise to make repeated changes

to the lethal injection procedures employed by the Department.” (emphasis

supplied)). See also Whitaker v. Livingston, 2013 U.S. Dist. LEXIS 144367, *7-

8 (S.D. Tex. 2013) (noting the prisoner’s allegation that the compounding

pharmacy was demanding the return of the execution drugs that it had supplied

to the State of Texas “because it was being harassed”). We are mindful of Hill’s

argument about enhancing the public debate on the death penalty in general and

on the participation of specific persons and entities in executions in particular,

and we recognize that disclosing the compounding pharmacy that produces

lethal injection drugs might enhance the ability of Hill and the general public to

more fully satisfy themselves that Georgia’s method of execution is humane.

However, we conclude that Georgia’s execution process is likely made more

timely and orderly by the execution-participant confidentiality statute and,

furthermore, that significant personal interests are also protected by it.

Accordingly, we also conclude that it therefore, on balance, plays a positive role

in the functioning of the capital punishment process. See Philadelphia Inquirer

                                        31
v. Wetzel, 906 FSupp.2d 362, 368 (III) (A) (M.D. Penn. 2012) (addressing a

First Amendment claim regarding access to the sights and sounds inside the

execution chamber and setting forth factors that might affect a court’s

assessment of whether public access would play a positive role in the

functioning of the process). Because Hill has failed both tests for whether a

First Amendment right applies to the discovery of the identity of the participants

in his execution, including those involved in the procurement of his execution

drugs, we need not address his arguments regarding the appropriate level of

restriction that would apply if such a right existed. Compare Press-Enterprise

Co., 478 U. S. at 13-15 (IV) (B) (“Since a qualified First Amendment right of

access attaches to preliminary hearings in California . . . the proceedings cannot

be closed unless specific, on the record findings are made demonstrating that

‘closure is essential to preserve higher values and is narrowly tailored to serve

that interest.’ [Cit.]”); California First Amendment Coal., 299 F3d at 877-879

(II) (determining the proper level of scrutiny to be applied where the First

Amendment had been found to apply to the viewing of the escorting of the

prisoner into the execution chamber and the placement of the intravenous ports).



                                       32
      5. In light of the foregoing, the Superior Court’s ruling granting what

amounted to an interlocutory injunction is reversed, and the case is remanded

for further proceedings on the merits not inconsistent with this opinion.

      Judgment reversed and case remanded. All the Justices concur, except

Benham and Hunstein, JJ., who dissent.
                           S14A0092. OWENS et al. v. HILL


       BENHAM, dissenting.

       On April 29, 2014, Clayton D. Lockett died of a massive heart attack.

Unlike most people, Lockett knew when he would die because he was scheduled

to be executed by the State of Oklahoma. Known to Lockett was the fact that

he would be injected with a combination of three drugs to exact his death.

Unknown to Lockett and his attorneys, despite their calls for transparency, was

the source of any of the three drugs. During the attempted execution, Lockett’s

veins failed, he reportedly twitched and mumbled, even after having been

declared unconscious,1 and, although officials attempted to halt the execution,

Lockett died forty-three minutes after the first drug had been administered.2

Unknown to us all, at least at the time of this writing, is why the execution did

not go as planned.3

       1
          "Mr. Lockett's apparent revival and writhing raised questions about the doctor's initial
declaration that he was unconscious and are sure to cast doubt on the effectiveness of the sedative
used." Eckholm, Erik, One Execution Botched, Oklahoma Delays the Next, The New York Times
(April 29, 2014).
       2
        The execution began at 6:23 p.m. and Lockett was declared dead at 7:06 p.m. McBride,
Bailey Elise and Murphy, Sean, Oklahoma Inmate Dies After Execution is Botched, The Associated
Press (April 30, 2014).
       3
        “Madeline Cohen, a federal public defender..., said that while prison officials asserted that
the problem was only with the intravenous line, ‘unless we have a full and independent investigation,
       I write because I fear this State is on a path that, at the very least, denies

Hill and other death row inmates their rights to due process and, at the very

worst, leads to the macabre results that occurred in Oklahoma. There must be

certainty in the administration of the death penalty. At this time, there is a

dearth of certainty namely because of the scarcity of lethal injection drugs.

Georgia’s confidential inmate state secret statute does nothing to achieve a high

level of certainty. Rather, the law has the effect of creating the very secret star

chamber-like proceedings in which this State has promised its citizens it would

not engage. See State v. Brown, 293 Ga. 493 (1) (748 SE2d 376) (2013). As

this Court stated in Atlanta Journal v. Long, 258 Ga. 410 (1) (369 SE2d 755)

(1988), “[J]ustice faces its gravest threat when courts dispense it secretly. Our

system abhors star chamber proceedings with good reason.” The fact that some

drug providers may be subject to harassment and/or public ridicule and the fact

that authorities may find it more difficult to obtain drugs for use in executions




we’ll never know.’” Eckholm, Erik, One Execution Botched, Oklahoma Delays the Next, The New
York Times (April 29, 2014).

                                            2
are insufficient reasons to forgo constitutional processes in favor of secrecy,

especially when the state is carrying out the ultimate punishment.4

       The majority reasons that Hill has not shown the statute to be

unconstitutional under the present circumstances because his claims regarding

the specific drug that the State will use to execute him are merely speculative.

Admittedly, speculative claims regarding deficiencies in an execution drug are

insufficient to sustain a claim of cruel and unusual punishment. See Brewer v.

Landrigan, __ U. S. __, __ (131 SCt 445, 178 LE2d 346) (2010). However, the

speculation permeating Hill’s claims arises solely from the State’s

unwillingness, in light of the secrecy statute, to disclose information that would

allow him to make more specific claims.

       Hill presented expert testimony showing that compounding pharmacies

are not regulated by the FDA, as are ordinary manufacturers of prescription

drugs, that a significant number of compounding pharmacies have produced

defective drugs in the past, and that a compounding pharmacy, in producing a


       4
        “Such secrecy undermines the public’s faith in the integrity of the justice system as it
conceals from the public, lawyers, and those facing execution critical information about the
lawfulness and reality of states’ execution procedures.” The Constitution Project, Irreversible Error:
Recommended Reforms for Preventing and Correcting Errors in the Administration of Punishment,
p. 141 (2014). [See www.constitutionproject.org]

                                                  3
specific batch of drugs for an execution, could produce drugs that would inflict

great suffering on Hill. Much like the State of Oklahoma did in regard to the

drugs used in the attempted Lockett execution, in this case the State has only

made baseline assurances that the compounding pharmacy it used was able to

produce a high quality execution drug. These assurances amount to little more

than hollow invocations of “trust us.”5 While the State produced a redacted

laboratory report from an independent laboratory that it claimed had tested

Hill’s execution drug, Hill, without knowing even the name of the laboratory,

was left again with little more than the State’s invocation of “trust us.”

       This Court has held that a statutory provision declaring information to be

a state secret must yield to constitutional due process demands. See Head v.

Stripling, 277 Ga. 403, 408-409 (1) (C) (590 SE2d 122) (2003) (noting that a

defendant’s constitutional rights trump statutory secrecy laws applicable to

information about the Board of Pardons and Paroles). Admittedly, that holding

was in the context of a Brady evidence suppression claim, a type of claim not



       5
        See also Land, Greg, Oklahoma’s Botched Execution is a Wake-Up Call in Georgia, Says
Law Professor, Daily Report (May 1, 2014), quoting Professor Michael Mears as follows:
“The defense bar is ...about protecting the Constitution. How do we know what [drugs] they're using
and not telling us about?”

                                                4
directly applicable here because it concerns trial rights. See id. (citing Brady v.

Maryland, 373 U. S. 83 (83 SCt 1194, 10 LE2d 215) (1963)). However, I find

that the general due process concerns at work in Brady naturally apply in this

context. Accordingly, I would hold that it is a violation of due process to reject

Hill’s cruel and unusual punishment claim as speculative while simultaneously

denying him the means by which he has any hope of proving that claim. See

Sepulvado v. Jindal, 739 F3d 716, 721-722 (II) (5th Cir. 2013) (Dennis, J.,

dissenting) (addressing a last-minute change to an execution protocol and

relying on “the general principles that changing and keeping secret the details

of a pending execution offends the basic constitutional principle of fair

notice. . . .”); Hoffman v. Jindal, 2014 U.S. Dist. LEXIS 3025, at *12-13 (M.D.

La. 2014) (expressing disapproval of the State’s concealment of details of the

prisoner’s impending execution but following “binding precedent” in the

jurisdiction that barred relief).

      In light of my assessment of Hill’s due process claim, I would grant him

access to information identifying the compounding pharmacy that produces his

execution drug; although, I would direct that the information be released under

appropriate safeguards to minimize any harm to individuals who are simply

                                         5
performing their jobs. See Zink v. Lombardi, 2014 U.S. App. LEXIS 3602, at

*4 (8th Cir. 2014) (Bye, J., dissenting) (“Even if Missouri had provided basic

guarantees of a regulated lab and licensed pharmacists, the skill-level and

experience in compounding of the pharmacist in question is vital to ensuring

Taylor is executed in a way which comports with the Eighth Amendment.”).

Likewise, because learning the source of the bulk materials used by the

compounding pharmacy could lead to information supporting Hill’s cruel and

unusual punishment claim, I would also order that information disclosed to Hill.

Id. at *5-6 (Bye, J., dissenting) (“Pain to Taylor may not be the fault of the

compounding pharmacist, but could also be laid at the feet of suppliers who

have failed to provide proper ingredients.       Missouri has yet to provide

information on the source of any drugs to be used to execute Taylor, leaving

open the possibilities the ingredients do not meet legal or medical standards.”).

      In sum, because I believe that the confidential inmate state secret statute

denies Hill due process by preventing him from having a legitimate opportunity

to prove his cruel and unusual punishment claim, I respectfully dissent to the

majority’s decision to reverse the Superior Court’s granting of an interlocutory

injunction pending the State’s disclosure of the information indicated.

                                        6
I am authorized to state that Justice Hunstein joins in this dissent.




                                  7
