Middleton v. Missouri Department of Corrections

278 S.W.3d 193, 2009 WL 837696

• Court: Supreme Court of Missouri
• Decided: March 31, 2009
• Docket: SC 89571
• Status: Published

Opinions

MARY R. RUSSELL, Judge.

Seventeen inmates who have been sentenced to death and other interested parties (“Appellants”) challenge the Missouri Department of Corrections’ (“DOC”) adoption of a lethal injection protocol. Appellants allege that DOC violated the Missouri Administrative Procedure Act (“MAPA”) section 536.021, RSMo Supp. 2007,¹ in that DOC did not undertake notice and public comment rulemaking when formulating the protocol. They allege this renders it void. The circuit court dismissed the action, finding that the protocol was not a rule.

This Court has jurisdiction pursuant to article V, section 10 of the Missouri Constitution. This Court finds that the protocol does not violate MAPA because it is not a rule and, therefore, is not subject to notice and comment rulemaking procedures. As such, the circuit court’s judgment is affirmed.

I.Background

DOC issued an execution protocol in July 2006, setting out the steps necessary for preparation, injection, and monitoring of lethal injections pursuant to section 546.720. This provision states that “the punishment of death shall be by the administration of lethal gas or by means of the administration of lethal injection” and authorizes the DOC director to provide the necessary facilities, appliances, and execution team for its administration.

To this end, the execution protocol describes the technical duties of an execution team consisting of DOC employees and medical personnel. The protocol describes the proper procedure for preparing syringes and the proper quantities of injection chemicals. It also provides that the chemicals are administered by DOC employees under the supervision of outside medical personnel, who also monitor the prisoners’ condition, pronounce death, and dispose of and document the chemicals.²

Appellants alleged that the protocol is void because DOC did not undertake notice and comment rulemaking as outlined by MAPA. The circuit court rejected Appellants’ arguments, finding that MAPA was not violated because the execution protocol was not a rule. It found that two statutory exemptions to the definition of a rule applied: (1) section 536.010(6)(a), regarding matters “concerning only the internal management” of the agency; and (2) section 586.010(6)(k), regarding matters “concerning only inmates.”

II.Standard of Review

This case presents a question of statutory interpretation, which is an issue of law that this Court reviews de novo. Finnegan v. Old Republic Title Co. of St. Louis, Inc., 246 S.W.3d 928, 930 (Mo. banc 2008).

III.Analysis

A. Section 536.010(6)(k) exempts the protocol

The issue presented requires this Court to determine if the General Assembly intended that an execution protocol be exempt from notice and comment rulemaking procedures. MAPA defines a “rule” as a “statement of general applicability that implements, interprets, or prescribes law or policy.” Section 536.010(6). Subsection 536.010(6)(k) specifically exempts “[a] statement concerning only inmates of an institution under the control of the department of corrections ... when issued by such an agency.” (emphasis added). This subsection functions to exempt a statement that otherwise would be subject to rule-making procedures, and in context, it clearly exempts the execution protocol from rulemaking here.

Resolution of this matter turns on the legislature’s understanding of the word “only” in the rulemaking exemption “concerning only inmates.”³ See section 536.010(6)(k). As such, a few principles of statutory construction are worth repeating. When ascertaining the legislature’s intent in statutory language, it commonly is understood that each word, clause, sentence, and section of a statute should be given meaning. See Mo. Prop. & Cas. Ins. Guar. Ass’n v. Pott Indus., 971 S.W.2d 302, 305 (Mo. banc 1998). The corollary to this rule is that a court should not interpret a statute so as to render some phrases mere surplusage. See Spradlin v. City of Fulton, 982 S.W.2d 255, 262 (Mo. banc 1998). Consistent with these principles, a sentence should not be given a meaning that thwarts a section; a clause should not undermine a sentence.

The legislature exempted 13 areas from rulemaking in section 536.010(6). This Court must give meaning to all of the exempted areas in these subsections, including the one described in subsection 536.010(6)(k) that exempts statements “concerning only inmates.” Moreover, a meaningful reading of the exemption is consistent with other states’ general view that “promulgation requirements of public notice, public hearing, attorney general approval, and filing with the state are simply not realistic requirements for implementing procedures that concern the intricacies and complexities of a prison environment.” Abdur’Rahman v. Bredesen, 181 S.W.3d 292, 312 (Tenn.2005).⁴ With these factors in mind, and reading the statutory language in context, it is apparent that the legislature intended “concerning only inmates” simply to limit who may be the direct subject of a protocol or statement. This avoids imputing an arbitrary legislative intent that otherwise would result if the subsection turned on who generally was involved in implementing a protocol or on who was present.

Indeed, in some sense, nearly every aspect of prison life involves people from outside the prison system, such as cafeteria food made with ingredients from outside sources, specialized hospital care, and interagency transportation. The protocol in this case concerns the technical procedure that guides medical personnel who are members of an “execution team” in preparing chemicals for lethal injection and in supervising their administration. The medical professionals are serving a technical role. Beyond the fact that their skills are needed to carry out the technical provisions effectively, this is not a protocol that is concerned with directing the behavior of medical professionals, whose role is incidental.⁵

Additionally, this protocol does not affect the rights of persons allowed to be witnesses under section 546.740, RSMo 2000. Section 546.740 specifically sets out the number and types of people who are allowed to attend executions, and the execution protocol does not alter this criteria. Section 546.740 criteria also highlight that an execution is not a public event. Further, the witnesses who are present do not participate in the procedural directives outlined in the protocol: preparing chemicals, using intravenous lines, medically monitoring the prisoner, and administrating and documenting chemicals. As such, no direct connection exists between witnesses and the protocol beyond that of individual interest. And, merely because an event or topic is interesting or important does not make it subject to rulemak-ing given that there is a specific statutory exemption, “concerning only inmates.” Any other conclusion would impute an irrational legislative intent.⁶

B. Section 546.720.2 shows an intent to exempt the protocol

Although the exemption to rulemaking in section 536.010(6)(k) clearly applies here, this conclusion also is supported by ascertaining the legislative intent in the relevant statutory provisions. See Estate of Williams v. Williams, 12 S.W.3d 302, 306 (Mo. banc 2000).

Here, the General Assembly has crafted section 546.720 to establish the permissible types of execution, granting DOC power to organize and to perform these executions. As part of this statute, the General Assembly also saw fit to make a statement regarding the public’s access to the protocol, stating that “[t]he section of an execution protocol that directly relates to the administration of lethal gas or lethal chemicals is an open record, the remainder of any execution protocol of the department of corrections is a closed record.” Section 546.720.2. This is significant because, to the extent that the statute declares part of the protocol to be an open record, this reflects the intent that the protocol not be subject to the rule-making statutes, as there would be no need for such a declaration if the protocol were a rule. See section 536.021 (providing for notice and public comment when rulemaking, an inherently public process). And, to the extent the statute provides that part of the protocol is a closed record, it is rendered meaningless if the closed portion must be promulgated publicly as a rule.

Read most naturally, this language demonstrates that the General Assembly crafted the statute with the understanding that execution protocols would not be subject to rulemaking. It is this Court’s role to effectuate this intent.

IV. Conclusion

The legislature has acted in section 536.010(6)(k) to exempt statements and procedures from rulemaking when they are directed solely at inmates, such as the protocol in this case. This intent is also implicit in section 546.720.2. This demonstrates that the General Assembly did not intend that notice and comment rulemak-ing be the avenue for bringing challenges to the State’s ability to execute death row inmates.⁷

The circuit court’s judgment is affirmed.

PRICE, BRECKENRIDGE and FISCHER, JJ., concur; TEITELMAN, J., dissents in separate opinion filed; STITH, C.J., and WOLFF, J. concur in opinion of TEITELMAN, J.; WOLFF, J., dissents in separate opinion filed; STITH, C.J., concurs in opinion of WOLFF, J.

1 . All statutory references are to RSMo Supp. 2007 unless otherwise noted.

2 . The protocol is titled "Preparation and Injection of Chemicals.” It contains a series of directives. Typical of the protocol is the directive, "Medical personnel attach the leads from the electrocardiograph to the prisoner’s chest.” And, "Syringes 1 A, 2A, 3A, and 4A each contain 1.25 grams of thiopental.”

3 . For example, "only” could mean that no person outside of DOC can be involved in a protocol’s implementation for the exemption to apply. On the other hand, “concerning only inmates” might mean "directed only at inmates.” This reading would allow other people to be implicated in a protocol so long as they were not its object. Or, "only” could be a form of emphasis, drawing attention to the words that follow.

4 . Abdur’Rahman considered a similarly worded exemption to rulemaking ("concerning inmates"), and the court there found that Tennessee's lethal injection protocol was exempt. 181 S.W.3d at 311-12. See also L'Heureux v. State Dep’t of Coir., 708 A.2d 549, 553 (R.I. 1998) (observing with approval that "[n]u-merous other jurisdictions that have considered the application of their administrative-procedure statutes to correctional institutions have rejected their applicability”).

5 . Compare this to the scenario in Wilkinson v. State, 172 Ariz. 597, 838 P.2d 1358 (1992). Wilkinson interpreted an exemption in Arizona "concerning only inmates” as applied to the visitation of an inmate’s minister, whose access had not been impeded previously. Id. at 1359. The Wilkinson court found that "the DOC’s religious visitation rules concern not just the inmates, but also the religious leaders who visit them.” Id. at 1360. In so holding, the court explicitly relied on two statements. One was a former version of the rule, which stated: "Visits by religions leaders may be denied only because such a visit is deemed to be a threat to the safety and security of the institution.” Id. (emphasis added). The other was a related rule concerning the "credentials of religious leaders.” Id.

As can be seen, the procedures in Wilkinson have a different character than the protocol in this case because that rule was directed at non-inmates. In contrast, the protocol here is directed solely at inmates. It makes no reference to the validity of the medical professionals' credentials, to alterations to prisoner access based on the medical professionals' characteristics, or to equivalent rights or procedures enjoyed by the public. Here, the professionals simply are accepting a particular job, and this protocol provides that job’s technical instructions.

6 . To hold otherwise would construe the language to reflect one of the following irrational intents: (1) to exempt protocols when a medical professional happens to be directly employed by DOC, but to require rulemaking when the medical professional is not so employed; (2) to apply the language "concerning only inmates” to mean that no one can be involved in implementing a protocol, which renders the exemption meaningless; or (3) to apply the language to all matters about which some member of the public feels strongly, which renders the exemption meaningless because every aspect of prison life is of concern to someone.

7 . Judge Wolff’s dissent articulates a view that reflects a lack of confidence in the legislative process, suggesting that the legislature "didn't think about the matter at all.” A complete reading of the statutes analyzed leads to an opposite conclusion. If the legislature intended to make the lethal injection protocol subject to notice and public comment, however, it can do so.