                                                                          FILED
                                                                      Jun 01 2017, 5:35 am

                                                                          CLERK
                                                                      Indiana Supreme Court
                                                                         Court of Appeals
                                                                           and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
David W. Frank                                             Curtis T. Hill, Jr.
Christopher C. Myers & Associates                          Attorney General of Indiana
Fort Wayne, Indiana                                        Stephen R. Creason
                                                           Chief Counsel
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Roy Lee Ward,                                              June 1, 2017
Appellant-Plaintiff,                                       Court of Appeals Case No.
                                                           46A03-1607-PL-1685
        v.                                                 Appeal from the LaPorte Circuit
                                                           Court
Robert E. Carter, Jr.,                                     The Honorable Thomas J.
Commissioner of the Indiana                                Alevizos, Judge
Department of Correction, and                              Trial Court Cause No.
Ron Neal, Superintendent of the                            46C01-1512-PL-2154
Indiana State Prison, in their
official capacities,
Appellees-Defendants




Baker, Judge.




Court of Appeals of Indiana | Opinion 46A03-1607-PL-1685 | June 1, 2017                       Page 1 of 10
[1]   Roy Lee Ward is an Indiana inmate on death row. In 2014, the Department of

      Correction (DOC) internally adopted a new method of lethally injecting

      inmates; the new method includes a cocktail of drugs that has never been

      administered in an execution in the United States. Ward filed a claim seeking

      injunctive and declaratory relief, arguing that the DOC was required to

      promulgate this new policy as a rule under the Administrative Rules and

      Procedure Act (ARPA).1 The State filed a motion to dismiss the claim, which

      the trial court granted. Ward now appeals. Finding that the General Assembly

      has not exempted the DOC from ARPA and that the statutory definition of

      “rule” clearly includes the DOC’s execution protocols, we reverse.


                                                      Facts     2




[2]   In 2007, Ward was sentenced to death by execution in Indiana. He is currently

      imprisoned at Indiana State Prison in LaPorte County. State officials, through

      the DOC, administer all state executions, which occur by the intravenous

      injection of lethal substances. In May 2014, State officials announced that they

      had adopted a new rule in their execution protocol. The new rule was not

      promulgated under ARPA but was instead adopted informally as an internal

      DOC policy.




      1
          Ind. Code ch. 4-22-2 et seq.
      2
       We held oral argument in Indianapolis on May 17, 2017. We thank counsel for both parties for their
      written and oral presentations.

      Court of Appeals of Indiana | Opinion 46A03-1607-PL-1685 | June 1, 2017                       Page 2 of 10
[3]   This new rule, which was effective immediately, provided that all prisoners

      sentenced to death in Indiana (including Ward) would be executed by a new

      combination of three drugs—methohexital (known by the brand name Brevital),

      pancuronium bromide, and potassium chloride. No prisoner of any state nor of

      the federal government has ever been executed with this particular combination

      of drugs.


[4]   On December 22, 2015, Ward filed a complaint seeking injunctive relief and a

      declaratory judgment. His essential argument was that because this new rule

      was not promulgated under ARPA, it is unlawful and violates his rights under

      ARPA and his right to due process under the state and federal constitutions.

      On March 29, 2016, the State filed a motion to dismiss pursuant to Indiana

      Trial Rule 12(B)(6), arguing that Ward had failed to state a claim on which

      relief could be granted. Essentially, the State contended that ARPA did not

      apply to the adoption of this new rule and that, consequently, no due process

      violation had occurred. Following a hearing, the trial court granted the motion

      and dismissed Ward’s complaint.3 Ward now appeals.


                                    Discussion and Decision
[5]   We apply a de novo standard of review to a trial court’s order granting a Rule

      12(B)(6) motion to dismiss a complaint for failure to state a claim. Allen v.




      3
       In its order, the trial court relied heavily on federal cases grounded in arguments related to cruel and
      unusual punishment under the Eighth Amendment to the United States Constitution. Appellant’s App. p.
      12-13. Ward, however, is not making an argument related to the Eighth Amendment.

      Court of Appeals of Indiana | Opinion 46A03-1607-PL-1685 | June 1, 2017                         Page 3 of 10
      Clarian Health Partners, Inc., 980 N.E.2d 306, 308 (Ind. 2012). A motion to

      dismiss for failure to state a claim tests the legal sufficiency of the complaint,

      not the facts supporting it. Id. In conducting our review, we must take all

      allegations of the complaint as true, construing them in the light most favorable

      to the plaintiff, to determine whether the complaint states any facts upon which

      the trial court conceivably could have granted relief. Id. We will reverse an

      order granting such a motion if there is any set of circumstances under which a

      plaintiff would be entitled to relief. Id.


[6]   Ward argues that the method in which the State adopted this new execution

      policy violated his rights under ARPA and his due process rights under the state

      and federal constitutions.


                               I. Relevant ARPA Provisions
[7]   Under ARPA, a “rule” is defined as follows:

              [T]he whole or any part of an agency statement of general
              applicability that:


                       (1)      has or is designed to have the effect of law; and


                       (2)      implements, interprets, or prescribes:


                                (A)      law or policy; or


                                (B)      the organization, procedure, or practice
                                         requirements of an agency.


      Court of Appeals of Indiana | Opinion 46A03-1607-PL-1685 | June 1, 2017       Page 4 of 10
       Ind. Code § 4-22-2-3(b). An administrative rule is one that has (1) general

       applicability; (2) prospective application; (3) the effect of law; and (4) affects a

       class of individuals’ rights. Blinzinger v. Americana Healthcare Corp., 466 N.E.2d

       1371, 1375 (Ind. Ct. App. 1984).


[8]    An Indiana agency takes “rulemaking action” when it engages in “the process

       of formulating or adopting a rule.” I.C. § 4-22-2-3(c). When an agency takes

       rulemaking action, it must promulgate the rule according to the process set

       forth in ARPA, with certain exceptions. I.C. § 4-22-13(a). Relevant to this case

       is an exception stating that an agency does not have to comply with ARPA if

       the rulemaking action results in “[a] resolution or directive . . . that relates

       solely to internal policy, internal agency organization, or internal procedure and

       does not have the effect of law.” I.C. § 4-22-2-13(c)(1).


[9]    To enforce compliance, ARPA creates individual rights in the administrative

       procedure, voids the legality of unlawfully adopted agency rules, and provides a

       cause of action in the instance a state agency violates the law’s provisions. I.C.

       §§ 4-22-2-14, -44, -45.


                           II. Does ARPA Apply to the DOC?
[10]   On appeal, the State abandons its position taken before the trial court and

       instead argues that ARPA does not apply to the DOC’s execution protocols.

       The State directs our attention to the lethal injection statute, which provides, in

       relevant part, as follows:



       Court of Appeals of Indiana | Opinion 46A03-1607-PL-1685 | June 1, 2017      Page 5 of 10
               (a)      The punishment of death shall be inflicted by intravenous
                        injection of a lethal substance or substances into the
                        convicted person:


                        (1)      in a quantity sufficient to cause the death of the
                                 convicted person; and


                        (2)      until the convicted person is dead.


                                                         ***


               (d)      The department of correction may adopt rules under IC 4-
                        22-2 necessary to implement subsection (a).


       Ind. Code § 35-38-6-1 (emphasis added). The State focuses on the word “may”

       in subsection (d), arguing that this permissive word means that, while the DOC

       has the option of promulgating execution protocol rules under ARPA, it is not

       required to do so.


[11]   We disagree. Initially, we note that the lethal injection statute must be read in

       conjunction with ARPA. ARPA explicitly excludes two state agencies from its

       provisions, and neither is the DOC. I.C. § 4-22-2-13(b) (excluding any military

       officer or board and any state educational institution from ARPA). If the

       legislature intended to exempt the DOC from the purview of ARPA altogether,

       or even to exempt the DOC’s execution protocols, it could have easily done so,

       but it has not. The DOC insists that requiring it to comply with ARPA in the

       context of the death penalty is burdensome and unworkable. But it is not the

       role of the judiciary to determine the statutory obligations of State agencies; that

       Court of Appeals of Indiana | Opinion 46A03-1607-PL-1685 | June 1, 2017        Page 6 of 10
       rests with the General Assembly. We can only conclude that, by omitting the

       DOC from the list of entities excluded from ARPA, the General Assembly has

       determined that the DOC is, indeed, bound to follow it.4


[12]   Having reached that conclusion, the plain meaning of Indiana Code section 35-

       38-6-1(d) becomes clear. The DOC is not required to adopt rules. But if it

       chooses to do so, it is bound to follow ARPA. The DOC’s approach would

       require us to ignore ARPA altogether, which we may not and shall not do. The

       legislature has determined that DOC is not exempt from ARPA; consequently,

       when it adopts rules, it must comply with the procedures set forth in ARPA. 5

       What we must determine next, therefore, is whether the DOC’s lethal injection

       protocol constitutes a rule.




       4
         The DOC submitted a notice of additional authority, contending that this authority “evidences present
       legislative intent to further exempt from the ordinary practice of public access, administrative process, and
       discovery the decisions and details related to the process undertaken by the [DOC] leading up to the
       execution of a sentence of death.” Notice of Add’l Auth. p. 1-2. This authority includes section 158 of
       House Enrolled Act (HEA) 1001, which (1) gives the DOC authority to enter into a contract for the issuance
       of substances used for lethal injection and (2) protects the identity of the person with whom DOC contracts
       for that purpose. In our view, HEA 1001 is not germane to the issue at hand, which is whether DOC must
       comply with ARPA. Therefore, we are not persuaded by this additional authority.
       5
         The DOC emphasizes that death row inmates have the right to challenge the fact and method of their
       execution under Section 1983 and the Eighth Amendment to the United States Constitution. But the case
       before us is something entirely different—a civil suit against the State for alleged violations of administrative
       agency law, “and the cause of action he brings, and the rights he asserts, are recognized by the ARPA.”
       Reply Br. p. 9. ARPA notes that the procedural rights it creates in citizens and the procedural duties it
       imposes on state agencies are “in addition to those created and imposed by other law.” I.C. § 4-22-2-14.
       Therefore, the fact that Ward has other rights, under other statutes and constitutions, does not vitiate his
       rights under ARPA.

       Court of Appeals of Indiana | Opinion 46A03-1607-PL-1685 | June 1, 2017                              Page 7 of 10
                   III. Are DOC’s Execution Protocols Rules?
[13]   When the parties argued this issue before the trial court, the State contended

       that changes in execution protocols were simply changes in internal agency

       policy rather than rules falling under ARPA. On appeal, the State is entirely

       silent on this argument. It does not contend that changes in execution protocols

       are internal agency policies, nor does it address Ward’s contention that the

       execution protocols are rules.


[14]   As noted above, a “rule,” for the purpose of ARPA, is


               [T]he whole or any part of an agency statement of general
               applicability that:


                        (1)      has or is designed to have the effect of law; and


                        (2)      implements, interprets, or prescribes:


                                 (A)      law or policy; or


                                 (B)      the organization, procedure, or practice
                                          requirements of an agency.


       Ind. Code § 4-22-2-3(b). An administrative rule is one that has (1) general

       applicability; (2) prospective application; (3) the effect of law; and (4) affects a

       class of individuals’ rights. Blinzinger, 466 N.E.2d at 1375.


[15]   It is readily apparent that the definition of “rule” encompasses the DOC’s

       execution protocol. The protocol has general applicability (as opposed to

       Court of Appeals of Indiana | Opinion 46A03-1607-PL-1685 | June 1, 2017       Page 8 of 10
       applicability only to a specific case) and prospective application. It has the

       effect of law in that it is binding on DOC employees and death row inmates.

       And it certainly affects a class of individuals’ rights—all prisoners scheduled to

       be put to death in Indiana following the 2014 announcement.


[16]   In another case related to an agency policy that was changed without

       promulgating a rule under ARPA, this Court found that the changed policy did

       not “relate primarily to the [agency’s] internal policies, procedures, or

       organization. The primary impact of the [new] requirements is external, and it

       is the primary impact that is paramount.” Villegas v. Silverman, 832 N.E.2d 598,

       609 (Ind. Ct. App. 2005) (emphasis added). Here, likewise, the primary impact

       of the change in execution protocols is external—its most significant impact is

       on the death row inmates who will be executed according to its terms.

       Although the State attempted to argue below that the primary impact of this

       policy is not on inmates such as Ward, we agree with Ward that “[i]t is unclear

       what, if any, effect a change in lethal injection substances would have on the

       state employees who execute prisoners” aside from a slight change in behavior

       in that the employees might have to reach into a different drawer, open a

       different package, or read an alternate list of instructions. Appellant’s Br. p. 19.


[17]   The General Assembly has defined what a rule is in the context of ARPA. That

       definition clearly includes the DOC’s execution protocol. A change in that

       execution protocol, therefore, is a new rule that may not be implemented until

       the DOC complies with ARPA. Given the legislature’s determination that the

       DOC is not exempt from ARPA, as well as the way in which it has defined

       Court of Appeals of Indiana | Opinion 46A03-1607-PL-1685 | June 1, 2017     Page 9 of 10
       “rule,” we are compelled to reverse the trial court’s order granting the dismissal

       of Ward’s complaint.6 As a matter of law, DOC must comply with ARPA

       when changing its execution protocol, and its failure to do so in this case means

       that the changed protocol is void and without effect.


[18]   The judgment of the trial court is reversed and remanded for further

       proceedings.


       Barnes, J., and Crone, J., concur.




       6
        Because we have found that Ward’s complaint prevails based on relevant statutory language, we need not
       consider his due process arguments.

       Court of Appeals of Indiana | Opinion 46A03-1607-PL-1685 | June 1, 2017                     Page 10 of 10
