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Court News Ohio

Ohio’s Execution Protocol Valid without Going through Rulemaking

Ohio’s existing execution protocol to carry out death sentences by lethal injection can be applied without the Department of Rehabilitation and Correction (DRC) submitting it through the state’s formal rulemaking procedures, the Ohio Supreme Court ruled today.

In a unanimous opinion, the Supreme Court rejected the claim by two death-row inmates that the execution protocol is a “rule” under Ohio law and must be ratified through a formal process. The Court ruled that under R.C. 111.15(A), the 21-page protocol is an “order respecting the duties of employees,” which is exempt from the rulemaking process.

Writing for the Court, Justice Patrick F. Fischer noted the inmates argued the protocol cannot be an “order” regarding employee duties because it affects non-employees, namely the inmate being executed. However, he wrote that while non-employees are impacted by the execution process, “the protocol amounts to an instruction manual on how to perform an execution,” and “nearly all of it deals with the duties” of the employees carrying out the execution.

Separate Inmate Challenges Issued
DRC has maintained a written execution protocol since 1994. It has gone through 20 versions. The Court’s opinion described the protocol as a “21-page, step-by-step, minutely detailed directive explaining precisely how DRC personnel are to administer a lethal injection to a condemned inmate, from start to finish.”

Cleveland Jackson and James D. O’Neal have both been convicted of aggravated murder and sentenced to death. O’Neal filed a lawsuit in Franklin County Common Pleas Court in January 2018, arguing the state could not carry out his execution because the procedure has been improperly adopted by the state. Jackson was permitted to intervene in the case in July 2018. The inmates argued the protocol was a rule and must be adopted under the procedures outlined in R.C. 111.15. DRC maintained the protocol was not a rule, and asked the trial court to grant summary judgment in its favor.

The trial court sided with the department. The inmates appealed to the Tenth District Court of Appeals, which affirmed the trial court’s decision. Jackson and O’Neal separately appealed to the Supreme Court, which agreed to hear their cases, and consolidated the two appeals into one case.

Supreme Court Examined Rulemaking Requirements
Justice Fischer explained the term “rule” is described in R.C. 111.15(A)(1) as, “any rule, regulation, bylaw, or standard having a general and uniform operation adopted by an agency under the authority of the laws governing the agency, any appendix to a rule, and any internal management rule.” The law states a “rule” does not include “any order respecting the duties of employees.”

An “internal management rule” is further defined in R.C. 111.15(A)(3) as any rule “governing the day-to-day staff procedures and operations within an agency.”

If an agency action is considered a rule, then it must go through the rule-making process in R.C. 111.15. That process requires a state agency to file its rule with the Ohio Secretary of State’s office and the director of the Ohio Legislative Services Commission. Then the rule can take effect 10 days after it is filed.

The Court stated that had the execution protocol been considered a rule having a general and uniform operation or would govern day-to-day staff operations, then it would be required to go through the formal process. But since it is an order respecting the duties of employees, then it does not.

Court Precedent Guided Decision
The opinion noted there is little guidance in state law or case law interpreting the meaning of “rule” as it is used to determine whether an agency must proceed through the rulemaking process. The Court noted three prior opinions helped guides its decision.

The Court noted it has previously determined that if a proposed agency rule “enlarges the scope” of the agency powers beyond what is stated in statute, then it must go through the rule-making process. If the rule simply interprets what is in a statute, it does not.

As examples, the Court pointed to its 1989 decision in Ohio Nurses Assn. Inc. v. State Board of Nursing Edn. & Nurse Registration, in which the nursing board issued a “position paper” that greatly expanded the authority of licensed practical nurses (LPNs) to administer intravenous fluids. Since the position paper enlarged the scope of the LPNs authority beyond what was permitted by state law, the paper had to go through the rulemaking process.

Similarly, the Court noted that in its 2015 decision in Fairfield Cty. Bd. of Commrs. v. Nally, when the Ohio Environmental Protection Agency adopted a new limit on phosphorus that could be discharged, the limit was a new standard that did not previously exist. It, too, had to go through the rule-making process, the Court concluded.

And the Court also looked to a 1994 decision by the First District Court of Appeals, Princeton City School Dist. Bd. of Edn. v. Ohio State Bd. of Edn., in which Princeton City Schools challenged “guidelines” developed by the Ohio Department of Education to implement a new state law that created a statewide computer-information network. The First District Court of Appeals had rejected the school’s argument that the guidelines had to go through the rulemaking process, finding the guidelines were “kind of an instruction manual showing the methods and alternatives to identify, compile, collect, and report the data” required to be reported by state law.

The execution protocol has “little in common with the kind of edicts” the Court has required for the formal rulemaking process, the opinion stated, and does not expand anyone’s functions or abilities beyond what is included in state law. However, like the education department guidelines, the execution protocol “amounts to an instruction manual,” the Court wrote.

Protocol Does Not Broadly Govern Department
The protocol also does not impact DRC employees as a whole. It affects only a narrow group of individuals involved in carrying out a court-ordered death sentence, the Court stated, and does not constitute a rule having “general and uniform operation” over the department’s activities.

The protocol also is not an internal management rule because it does not impact the day-to-day operations of the department, the opinion noted. The Court clarified that “day-to-day” does not mean literally the daily operations of the DRC, but rather the “frequent,” or “routine” operations. Executions are not routine, the opinion stated, noting that since 1999, Ohio has carried out or attempted 58 death sentences.

Because of its limited use guiding the work of a small group of DRC employees, the protocol is not a rule that needs to follow the process stated in R.C. 111.15, the Court concluded.

2020-0676 and 2020-0683. O’Neal v. State, Slip Opinion No. 2021-Ohio-3663.

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