T. Williams v. PA DOC

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Terrance Williams; Richard :

Laird; Robert Wharton; Hubert :

Michael, Michael E. Ballard, :

individually and on behalf of :

all others similarly situated, :

Petitioners :

:

v. :

:

Commonwealth of Pennsylvania :

Department of Corrections, : No. 353 M.D. 2014

Respondent : Argued: March 11, 2015

BEFORE: HONORABLE DAN PELLEGRINI, President Judge

HONORABLE BERNARD L. McGINLEY, Judge

HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE MARY HANNAH LEAVITT, Judge

HONORABLE P. KEVIN BROBSON, Judgeh

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE ANNE E. COVEY, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE McGINLEY FILED: October 15, 2015

Presently before this Court are the Department of Corrections’ (DOC)

Preliminary Objections (POs) to a Second Amended Class Action Petition for

Review in the Nature of a Complaint in Equity (Petition).1 Petitioners bring this

1

Five inmates sentenced to death in Pennsylvania (Petitioners) initially filed a petition on

July 3, 2014, and named Terrence Williams, Richard Laird and Robert Wharton as bringing

claims on behalf of themselves and as class representatives. The DOC filed POs on August 11,

2014, and Petitioners filed an amended petition on the same day adding Hubert Michael as a

fourth Petitioner.

The DOC preliminarily objected to the amended petition.

On September 29, 2014, Petitioners filed POs to the DOC’s POs and alleged that the

DOC’s POs lacked specificity and that the DOC’s challenge to Petitioners’ class-action status

(Footnote continued on next page…)

action on behalf of themselves and a class of all 184 inmates sentenced to death in

the Commonwealth.

I. Brief History.

In 1990, the General Assembly adopted the following method of

execution: “[t]he death penalty shall be inflicted by injecting the convict with a

continuous intravenous administration of a lethal quantity of an ultrashort-acting

barbiturate in combination with chemical paralytic agents approved by the

department until death is pronounced by the coroner.” 61 Pa. C.S. § 4304(a)(1);

Amended Petition ¶ 23 at 8.

The DOC first promulgated the lethal injection execution protocol

(Protocol) to implement the statute in April of 1991 and revised the procedures on

multiple occasions, most recently in 2012.2

(continued…)

was improperly raised because it was not raised in new matter rather than by preliminary

objection.

On October 21, 2014, this Court sustained Petitioners’ POs with regard to the specificity

of the DOC’s demurrers and to the class action and denied the POs in all other regards.

The DOC filed the present amended POs on November 7, 2014. Petitioners filed a

second amended petition for review on November 12, 2014, and added Michael E. Ballard as a

fifth Petitioner, but alleged identical claims as in the original petition. The DOC consented to

this amendment and this Court issued an Order on November 14, 2014, granting the addition.

2

The Capital Case Procedures Manual directs:

B. Pre-Execution Procedures

….

2. Lethal Injection Team (LIT)

a. The Department [DOC] will obtain the services

of a sufficient number of individuals qualified to

administer the lethal injection to ensure that a two-

(Footnote continued on next page…)

2

(continued…)

member team, at a minimum, will be available for

each scheduled execution….

….

d. All LIT members must be trained health care

professionals who have completed intravenous

therapy training and are experienced in performing

venipuncture….

….

3. Commencement of the Lethal Injection

….

c. When the signal is given to start the execution,

the LIT will follow this sequence:

(1) If pentobarbital is being used:

(a) one syringe containing 2,500 mg

pentobarbital…will be inserted in the…tube of the

left arm IV administration set and the injection shall

commence. The emptied syringe will be removed

from the injection tube; and

(b) a second syringe containing 2,500 mg

pentobarbital…will be inserted into the…tube of the

right arm IV administration set and the contents

injected. The emptied syringe will then be removed

from the injection tube.

(c) 50ml Normal Saline…will be inserted into the…

the left arm IV administration set and the contents

injected to flush the line.

(2) If thiopental is being used:

(a) A syringe containing 1.5 gm thiopental…will be

inserted…in the left arm IV administration set and

the injection shall commence. The emptied syringe

will be removed from the injection tube.

(b) A second syringe containing 1.5 gm

thiopental…will be inserted into the…left arm IV

administration set and the contents injected. The

emptied syringe will then be removed from the

injection tube.

(c) 50 ml Normal Saline…will be inserted into

the…left arm IV administration set and the contents

injected to flush the line.

(Footnote continued on next page…)

3

II. Petitioners’ Amended Petition.

Petitioners seek declaratory and injunctive relief. Petitioners request

this Court to declare the DOC’s Protocol invalid and unlawful.

5. Pennsylvania prescribes that the death penalty shall be

inflicted by injecting the condemned inmate with a lethal

combination of two types of drugs- ‘an ultrashort-acting

barbiturate’ and ‘chemical paralytic agents.’ 61 Pa.C.S.A.

[sic] § 4304(a)(1).

(continued…)

….

(3) Following administration of the second syringe of

pentobarbital or the second syringe of thiopental and the

Normal Saline:

….

(4) One dose of 50 mg of pancuronium bromide, will be

administered through…the left arm IV administration set.

(5) Upon completion of the first dose of 50mg

pancuronium bromide, a second dose of 50 mg

pancuronium bromide will be administered through…the

left arm IV administration set.

(6) The…left arm IV administration set will then be flushed

with 50 ML Normal saline.

(7) A syringe containing 50 meq [milliequivalent]

potassium chloride…will be inserted into…the left arm IV

administration set and the entire contents shall be injected.

(8) When the contents of the first potassium chloride

syringe have been injected, the emptied syringe will be

removed and a second syringe containing 50 meq

potassium chloride…will be inserted in to…the left arm IV

extension set and injected. The emptied syringe will then

be removed.

….

Commonwealth of Pennsylvania, Department of Corrections’ Procedures Manual, August 27,

2012, at 3-27.

4

6. The General Assembly adopted this method of

execution in 1990, after extensive fact-finding,

testimony, and public debate.

7. In April 1991, the DOC promulgated Pennsylvania’s

first lethal injection procedures to implement [61

Pa.C.S.] § 4304. The DOC has revised and adopted new

procedures on multiple occasions, and in 2012, the DOC

adopted the current execution protocol….

8. Contrary to the statute, the protocol dictates that lethal

injections will be administered with three different types

of drugs. The first drug, pentobarbital, and the third drug

potassium chloride, do not fall under either drug type

authorized by the legislature. Further, the protocol fails

to use ‘an ultrashort-acting barbiturate,’ as required by

statute.

9. The current protocol exceeds the statutory grant,

conflicts with the express terms of the statute, and is

inconsistent with the purpose of the statute, which was to

adopt the most ‘humane’ method of execution. The

DOC’s selection of lethal injection drugs outside the

statutory grant undermines the Legislature’s decision to

reserve for itself the selection of the types of drugs that

will be used in executions.

10. The DOC adopted the execution protocol in secret,

without public notice, hearing, or comment. The DOC is

required to follow a formal rule-making process when, as

here, it promulgates new regulations or amends existing

ones. See 45 P.S. §§ 1102, 1201-1208 (the

Commonwealth Documents Law or ‘CDL’)[3]; 71 P.S. §§

745.1-745.15 (the Regulatory Review Act or ‘RRA’)[4];

71 P.S. §§ 732-101- 732-506 (the Commonwealth

Attorneys Act or ‘CAA’)[5]. Because the DOC failed to

3

Act of July 31, 1968, P.L. 769, as amended, 45 P.S. §§ 1102-1602, and 45 Pa.C.S. §§

501-907, which, collectively, are known as the “Commonwealth Documents Law.” This was the

official short title of the 1968 enactment. See Section 101 of the Act of July 31, 1968, P.L. 769.

4

Act of June 25, 1982, P.L. 633, as amended, 71 P.S. §§ 745.1-745.15.

5

Act of October 15, 1980, P.L. 950, as amended, 71 P.S. §§ 732-101- 732-506.

5

follow these mandatory processes, the execution protocol

is a nullity.

11. In addition, the protocol is unreasonable because it

conflicts with other provisions of state and federal law,

including restrictions that prohibit pharmacies from

providing controlled substances without valid medical

prescriptions, restrictions that prohibit pharmacies from

selling certain compounded drugs, and restrictions that

prohibit registered nurses and paramedics from

administering the lethal drugs or otherwise participating

in executions.

….

27. Pentobarbital is neither an ultrashort-acting

barbiturate nor a chemical paralytic agent. Pancuronium

bromide is a chemical paralytic agent. Potassium

chloride is neither an ultrashort-acting barbiturate nor a

chemical paralytic agent. (Emphasis added.)

28. The sections of the execution protocol relevant to this

lawsuit consist of rules and regulations. The protocol

was promulgated under the authority of a statute that

DOC administers and which prescribes practices and

procedures for the DOC.

29. The DOC is required to follow a formal rule-making

process when it promulgates new rules and regulations or

amends existing ones.

30. The DOC adopted and amended the execution

protocol without public notice, hearing, or comment. In

adopting and amending the protocol, the DOC did not

follow the requirements of the CDL, 45 P.S. §§ 1102,

1201-1208, the RRA, 71 P.S. §§ 745.1-745.15, or the

CAA, 71 P.S. §§ 732-101- 732-506.

31. Under the protocol, DOC obtains lethal injection

drugs, including compounded drugs, from one or more

pharmacies. The protocol is unreasonable because, under

the federal Food, Drug, and Cosmetic Act (FDCA), DOC

is prohibited from obtaining, and pharmacies are

prohibited from providing, a compounded copy of an

FDA-approved drug, like pentobarbital, through

6

interstate commerce. See 21 U.S.C. §§ 502-505, 582; see

also 21 U.S.C. §§ 331, 355.

32. Under the protocol, DOC obtains lethal injection

drugs without a valid medical prescription. The protocol

is unreasonable because, under the federal Controlled

Substances Act (CSA)[6] and the Pennsylvania Pharmacy

Act[7], DOC is prohibited from obtaining, and pharmacies

are prohibited from providing, lethal injection drugs

without a valid medical prescription. See 21 U.S.C. [§§

801-971]; 63 P.S. [§§ 390-1- 390-13].

33. The DOC utilizes a ‘Lethal Injection Team’ (LIT) to

administer an execution. The LIT’s responsibilities

include performing venipuncture and establishing

intravenous lines in the condemned inmates,

administering the lethal drugs, and participating in

consciousness checks of the inmates.

34. …Current members of the LIT are registered nurses

and/or certified paramedics.

35. Registered nurses may perform venipuncture only

when it has been ‘ordered in writing for the patient by a

doctor of the healing arts.’ 49 Pa. Code § 21.12(a). The

execution protocol is unreasonable because it conflicts

with this statutory prerequisite. (Emphasis added.)

36. Registered nurses may administer anesthesia only if

certified as a Registered Nurse Anesthetist, and only

under the direction of, or in consultation with, a

physician. 49 Pa. Code. [sic] §21.17. The execution

protocol is unreasonable because it conflicts with these

statutory prerequisites. (Emphasis added.)

37. Direct or indirect participation in an execution is

contrary to the ethical standards of the nursing

profession. Willful violation of the nursing laws or of

ethical standards may be punished by suspension or

6

21 U.S.C. §§ 801-971.

7

Act of September 27, 1961, P.L. 1700, as amended, 63 P.S. §§ 390-1- 390-13.

7

revocation of the nursing license, criminal prosecution,

and/or a civil fine. 63 P.S. [§] 223; 63 P.S. [§] 224(a).

The execution protocol is unreasonable because it

conflicts with these ethical and statutory provisions.

38. Paramedics may lawfully administer only certain

drugs, and a paramedic may lawfully administer other

drugs only when acting under the orders of a physician.

See 28 Pa. Code. [sic] § 1005.11. Absent a physician’s

order, paramedics may not lawfully administer sodium

thiopental, pancuronium bromide, or potassium

chloride….(Emphasis added.)

39. Direct or indirect participation in an execution is

contrary to the ethical standards of the paramedic

profession. Paramedics who willfully or negligently

practice beyond the scope of their authorization face

disciplinary or corrective action. See 28 Pa. Code §

1003.27. The execution protocol is unreasonable because

it conflicts with these ethical and statutory provisions.

Exhaustion of Administrative Remedies

40. There is no administrative remedy available to

Petitioners. DOC refuses to provide a copy of the

execution protocol to death row inmates and, where an

inmate files an administrative grievance as ‘frivolous’

and provides no administrative recourse.

….

Claims for Relief

Claim 1

The execution protocol adopted by the Department of

Corrections exceeds and conflicts with the statutory

authorization set forth in [Pa.C.S. 61] § 4304.[8]

Claim 2

The execution protocol adopted by the Department of

Corrections violates the requirements of the

8

Claim I is based on the allegations raised in Petitioners’ Amended Petition at paragraphs

8-9 and 27-28.

8

Commonwealth Documents Law, 45 P.S. §§ 1102, 1201-

1208, the Regulatory Review Act, 71 P.S. §§ 745.1-

745.15, and the Commonwealth Attorneys Act, 71 P.S.

§§ 732-101 to 732-506. The execution protocol is also

unreasonable in that it conflicts with ethics provisions

and with state and federal law, including the federal

Food, Drug, and Cosmetic Act, 21 U.S.C. §§ 502-505,

582; the federal Controlled Substances Act, 21 U.S.C. §§

802, 822, 829; the Pennsylvania Pharmacy Act, 63 P.S.

[§§ 390-1- 390-13]; as well as 28 Pa. Code. § 1005.11,

41 Pa. B. 2286, 49 Pa. Code § 21.12, 49 Pa. Code. §

21.17, 63 P.S. 223, and 63 P.S. 224(a).

Petition, August 26, 2014, ¶¶ 5-11, 27-40 at 2-3 and 9-12.

III. The DOC’s Amended Preliminary Objections.

The DOC preliminarily objects to the Petition and asserts:

I. In the Nature of a Demurrer:

1. Claim I…fails to state any claim for which relief may

be granted.

….

4. …[T]he execution protocol does not impermissibly

conflict with the statutory provisions [of Section 4304 of

the Prisons and Parole Code (Code), 61 Pa. C.S. §

4304(a)(1)] and therefore Claim I should be dismissed

because it fails to allege sufficient facts to provide any

relief to petitioners. (Emphasis added.)

5. Claim II…fails to state a claim for which relief may be

granted.

….

7. As a matter of law, this Court can review the

provisions of the execution protocol adopted by the

Department of Corrections and determine that it does not

impermissibly conflict with the state and federal laws

listed in the Amended Petitioner [sic] and therefore

Claim II should be dismissed with prejudice.

9

II. Lack of Jurisdiction.

8. The [A]mended [P]etition presents no claim that is ripe

for review.

9. Insofar as [P]etitioners’ claims seek to have the Court

determine that the DOC’s lethal injection protocol

conflicts with federal law, including the Food, Drug and

Cosmetic Act (‘FDCA’), 21 U.S.C. §§ 502-505 and 582,

and the Controlled Substances Act (‘CSA’), 21 U.S.C. §§

802, 822 and 829, the Court lacks jurisdiction to hear and

decide such issues.

10. Insofar as [P]etitioners’ claims seek to have the

Court determine that the participation of nurses and/or

paramedics in effectuating capital punishment violates

their respective professional ethical standards, the Court

lacks jurisdiction to hear and decide such issues.

11. Insofar as [P]etitioners’ claims seek to have the

Court determine whether there has been compliance with

the Pennsylvania Pharmacy Act (‘PPA’), 63 P.S. §390-1

et seq., the Court lacks jurisdiction to hear and decide

such issues.

III. Lack of Standing/Capacity to Sue.

12. None of the [P]etitioners have standing to challenge

the legality of the DOC’s execution procedures.

(Emphasis added.)

13. Insofar as [P]etitioners seek to have the Court

determine that the participation of nurses and/or

paramedics in effectuating capital punishment violates

their respective professional ethical standards, they lack

standing to pursue such issues. (Emphasis added.)

14. Petitioners lack standing to pursue claims under the

PPA, the Regulatory Review Act (‘RRA’), 71 P.S. §

745.1 et seq., the Commonwealth Documents Law

(‘CDL’), 45 P.S. § 1101 et seq., or the Commonwealth

Attorneys Act (‘CAA’), 71 P.S. § 732-101 et seq.

10

15. Petitioners lack standing to pursue claims under

either the FDCA or the CSA.

The DOC’s POs, ¶¶ 1, 4, 5, 7-15 at 1-3.

IV. Discussion.

A. Whether Claim I Of The Petition States A Claim

For Which Relief May Be Granted?

To begin, Petitioners allege that the procedures outlined in the

Protocol are inconsistent with Section 4304(a)(1) of the Code, 61 Pa. C.S. §

4304(a)(1), for the following reasons: 1) the Protocol fails to require the use of an

ultrashort-acting barbiturate as required by the statute; 2) the use of pentobarbital

and potassium chloride violates legislative intent because the drugs are neither

ultrashort-acting barbiturates nor chemical paralytic agents; and 3) the law only

allows for two drugs to be administered while the Protocol provides the use of

three drugs.

Section 4304(a)(1) of the Code provides that “[t]he death penalty shall

be inflicted by injecting the convict with a continuous intravenous administration

of a lethal quantity of an ultrashort-acting barbiturate in combination with chemical

paralytic agents approved by the department [DOC] until death is pronounced by

the coroner.” 61 Pa. C.S. § 4304(a)(1). This question of interpretation is one of

first impression.

11

The DOC argues9 that Petitioners fail to state a claim in Claim I for

two reasons. First, the Protocol lists two options for the first drug injected into an

inmate: pentobarbital or sodium thiopental. Sodium thiopental is an ultrashort-

acting barbiturate and Petitioners do not allege otherwise. Second, nothing in the

statute limits the DOC to using only ultrashort-acting barbiturates in combination

with chemical paralytic agents.

The DOC explains that Petitioners’ allegations fail to state a claim

because “nothing in the plain language of the statute prohibits the [DOC] from

using another drug or drugs in addition to an ultrashort-acting barbiturate and

chemical paralytic agent…” The DOC’s brief at 10. The DOC argues that nothing

in the statute bars the DOC from using any other drug(s) as part of its execution

procedures and therefore the Protocol does not violate state law.

9

When ruling on preliminary objections in the nature of a demurrer, this Court will

assume that the Petitioners’ factual allegations are true. May v. Kosinski, 86 A.3d 945, 948 n.6

(Pa. Cmwlth. 2014). However, “the court need not accept as true conclusions of law,

unwarranted inferences from facts, argumentative allegations, or expressions of opinion.” Penn

Title Insurance Company v. Deshler, 661 A.2d 481, 483 (Pa. Cmwlth. 1995). “A demurrer will

not be sustained unless the face of the complaint shows that the law will not permit recovery, and

any doubts should be resolved against sustaining the demurrer.” Id. Therefore, this Court’s

inquiry is limited to whether it is certain, based on the facts alleged, that the DOC’s Protocol is

consistent with the statute and does not violate legislative intent.

As with all cases involving the interpretation of a statute, this Court is guided by the

provisions of the Statutory Construction Act of 1972. “The object of all interpretation and

construction of statutes is to ascertain and effectuate the intention of the General Assembly.” 1

Pa. C.S. § 1921. “Generally speaking, the best indication of legislative intent is the plain

language of a statute.” Sternlicht v. Sternlicht, 876 A.2d 904, 909 (Pa. 2005) (citations omitted).

“Words and phrases shall be construed according to rules of grammar and according to their

common and approved usage.” Id. (quoting 1 Pa. C.S. § 1903).

12

The term “ultrashort-acting barbiturate” in the statute is singular while

the term “chemical paralytic agents” is plural. However, when interpreting

specific phrases in statutes, “the singular shall include the plural, and the plural, the

singular.” 1 Pa. C.S. § 1903. Thus, it is possible to interpret this phrase as

requiring the use of both ultrashort-acting barbiturates and chemical paralytic

agents in all executions, and providing the DOC with the discretion to use more

than one type of each drug as it deems necessary.

Under the maxim expression unius est exclusion alterius, “the express

mention of a specific matter in a statute implies the exclusion of others not

mentioned.” West Penn Allegheny Health Systems v. Medical Care Availability &

Reduction of Error Fund, 11 A.3d 598, 605-06 (Pa. Cmwlth. 2010). Applying this

maxim means the failure to mention an additional type of drug after specifying two

specific types of drugs, may imply exclusion of an additional type of drug. As

with all cases involving the interpretation of a statute, we are guided by the

provisions of the Statutory Construction Act of 1972. “The object of all

interpretation and construction of statutes is to ascertain and effectuate the

intention of the General Assembly.” 1 Pa. C.S. § 1921. “Generally speaking, the

best indication of legislative intent is the plain language of a statute.” Sternlicht v.

Sternlicht, 876 A.2d 904, 909 (Pa. 2005) (citations omitted).

At this early stage of the litigation, taking Petitioners’ allegation that

pentobarbital and potassium chloride are neither ultrashort-acting barbiturates nor

chemical paralytic agents as true, Petitioners have stated a claim that the Protocol

violates the statute. Therefore, the DOC’s first PO is overruled.

13

B. Whether The First Portion Of Claim II Of The Amended Petition States A

Claim Upon Which Relief May Be Granted?

In their second claim Petitioners assert that the Protocol violates the

requirements of the Documents Law, the Review Act, and the Attorneys Act.

The DOC argues that Petitioners fail to state a claim in Claim II for

two reasons. First, the Protocol is part of a DOC manual detailing internal

operating procedures which is not subject to the requirements of the Documents

Law, Review Act, and Attorneys Act. The Protocol has no impact on the general

public and, thus, the public need not participate in the establishment of the

Protocol. Given the unique prison environment, the DOC must have the right to

enforce reasonable rules separate from formal regulations. The DOC does not

dispute that the Protocol was not promulgated in accordance with these statutes.

Essentially the DOC argues that the Protocol is not a regulation and, therefore, it is

not required to follow formal rule-making procedures.10

This Court must determine, assuming the averments of Petitioners are

true, whether under no circumstances may the Protocol be considered a regulation

requiring formal rule-making procedures.

A regulation promulgated in violation of the requirements of the

Documents Law, the Review Act, and the Attorneys Act will be declared a nullity.

Borough of Bedford v. Department of Environmental Protection, 972 A.2d 53, 62

(Pa. Cmwlth. 2009). Conversely, the DOC may issue “non-legislative rules” such

10

The DOC also contends that in arguing that the Protocol is unreasonable, Petitioners

failed to show that the Protocol violates any other state or federal law.

14

as statements of policy or interpretative rules that do not go through the normal

rule-making process. Northwestern Youth Services Inc. v. Department of Public

Welfare, 66 A.3d 301 (Pa. 2013).11 Applying the “binding norm test” assists in

determining whether a statement or rule was issued by an administrative agency.

Department of Environmental Resources v. Rushton Mining Company, 591 A.2d

1168, 1173 (Pa. Cmwlth. 1991). Under the binding norm test, an agency decision

is not a statement of policy if it is binding on the agency. Id. “To determine

whether an agency has attempted to establish a binding norm without required

procedure, courts consider the plain language of the enactment, the manner in

which the agency implemented the provision and whether its discretion is restricted

by the provision.” Cash America Net of Nevada, LLC v. Commonwealth, 978 A.2d

1028, 1033 (Pa. Cmwlth. 2009). If the Protocol was designed to be a non-

legislative rule, but, in effect, binds the DOC, the statement of policy or

interpretive rule may function as a regulation for purposes of the Documents Law,

11

In Northwestern Youth Services, the Supreme Court explained:

Non-legislative rules…come in an abundance of formats with a

diversity of names, including guidances, manuals, interpretative

memoranda, staff instructions, policy statements, circulars,

bulletins, advisories, press releases and others. When such

documents fairly may be said to merely explain or offer specific

and conforming content to existing statutes or regulations within

the agency’s purview, they are regarded as ‘interpretative rules,’

which generally are exempt from notice-and-comment rulemaking

and regulatory-review requirements. Additionally, ‘statements of

policy’- or agency pronouncements which are not intended to bind

the public and agency personnel, but rather, merely express an

agency’s tentative, future intentions- also are not regulations

subject to notice-and-comment rulemaking and regulatory-review

requirements.

Northwestern Youth Services, 66 A.3d at 310-12.

15

Review Act, and Attorneys Act and may only be deemed valid if it was

promulgated through the normal rule promulgation procedure. See Transportation

Services Inc. v. Underground Storage Tank Indemnification Board, 67 A.3d 142,

153 (Pa. Cmwlth. 2013) (stating “[i]f an interpretative rule or statement of policy

functions as a regulation, then it will be nullified due to the agency’s failure to

obey the processes applicable to the promulgation of a regulation”) (citations

omitted).

In the present case, the Protocol is part of an internal operating

manual and allegedly reflects the current procedures employed by the DOC

personnel, as opposed to the DOC’s “tentative future intentions.” Northwestern

Youth Services Inc. 66 A.3d at 311. The Protocol may bind the DOC personnel by

the use of terms such as “must”, “shall” or “will.” Petitioners’ brief notes that the

word “will” appears 108 times in non-redacted portions of the Protocol and “shall”

appears twenty-four times. Petitioners’ Brief at 7, n.2. Conversely, the term

“may” appears only four times and words “can” and “could” do not appear at all.

Petitioners’ Brief at 7, n.2.

In response, the DOC cites the Supreme Court’s decision in Small v.

Horn, 722 A.2d 664, 669 (Pa. 1998), for the proposition that it has the discretion to

issue internal operating procedures without following the formal rule-making

process. In Small, nine inmates challenged the DOC’s issuance of bulletins which

revoked the inmates’ permission to wear civilian clothing. Our Supreme Court

determined that the DOC’s bulletins were not “regulations” for purposes of the

Commonwealth Documents Law or the Regulatory Review Act, but instead

16

embodied decisions that were inherently committed to the DOC’s discretion

because the issue was clearly internal to the operation of a prison and had little

public impact. See Orozco v. Department of Corrections, 83 A.3d 1161 (Pa.

Cmwlth. 2014) (addressing the confiscation of items upon transfer from an out of

state prison); Bundy v. Beard, 924 A.2d 723, 728 (Pa. Cmwlth. 2007) (addressing

the confiscation of inmate mail); and Weaver v. Department of Corrections, 829

A.2d 750, 752 (Pa. Cmwlth. 2003) (addressing the removal of artwork from an

inmate’s cell).

Our Supreme Court has “recognized a category of agency decisions

that are inherently committed to the agency’s sound discretion and that cannot

reasonably be subjected to the normal public participation process.” Small, 722

A.2d at 669 (internal quotation marks omitted). These include, inter alia,

“reasonable rules of internal prison management to ensure public safety and prison

security.” Id. The test used by the Supreme Court in Small as to whether these

decisions are committed to agency discretion is whether the measure had more

than an “incidental effect on the general public” so that “it is reasonable to

conclude that the Legislature did not intend the measure to be subjected to the

normal public participation process.” Id. at 670 (Internal quotation marks

omitted.)

Contrary to DOC’s arguments, the DOC’s policies concerning inmate

dress codes or inmate mail are distinguishable from the Commonwealth’s

procedure with regard to carrying out the death penalty. Issues of dress and inmate

mail are internal to the operation of the prison, with an “incidental effect on the

17

general public . . . .” See Small, 722 A.2d at 670. Conversely, the General

Assembly has specifically enacted legislation addressing execution procedures and

so we cannot say that the legislature intended prison policies regarding execution

“not to be subjected to the normal public participation process.” (Footnote

omitted.) Id. at 670.

Accordingly, Petitioners have sufficiently pled a cause of action in the

first portion of Claim II and the DOC’s second PO is overruled and DOC shall file

an answer to Claim II of the petition for review.

C. Whether The Second Portion Of Claim II Of The Petition Fails To State A

Claim Upon Which Relief May Be Granted?

Petitioners argue in the second portion of Claim II that the Protocol is

“unreasonable” because it conflicts with the Federal Drug and Controlled

Substances Acts and the Pharmacy Act. For example, Petitioners contend that the

Protocol permits the DOC to procure the drugs through interstate commerce in

violation of FDCA provisions and without a valid medical prescription. These

claims appear to raise issues of fact that cannot be resolved by POs.

Accordingly, the second portion of the DOC’s PO to Claim II is

overruled and DOC must answer the Petition for Review.

D. The DOC’s PO Asserting Lack of Jurisdiction.

The DOC next contends that under the justiciability doctrine, the

matter is not ripe for review because not all Petitioners have active death warrants

signed by the Governor and those Petitioners under active warrants have had their

18

executions judicially stayed.12 However, the DOC fails to take into account that

the Petitioners have all been sentenced to death by a court of this Commonwealth

and each Petitioner remains incarcerated on death-row.13

The justiciability doctrine of ripeness addresses the appropriate time

for judicial intervention. Town of McCandless v. McCandless Police Officers

Association, 901 A.2d 991, 1002 (Pa. 2006). The Supreme Court has focused its

ripeness jurisprudence on the principle “that the courts should not give answers to

academic questions or render advisory opinions or make decisions based on

assertions as to hypothetical events that might occur in the future.” Philadelphia

Entertainment & Development Partners, L.P. v. City of Philadelphia, 937 A.2d

385, 392 (Pa. 2007).

This Court considers Petitioners’ allegations that the drugs listed in

the Protocol will be used to execute Petitioners as more than “rank speculation”

because the Protocol was adopted by the DOC and has been in effect since August

28, 2012.

Accordingly, this Court has jurisdiction and this PO is overruled.14

12

Pursuant to Section 4302(a) of the Code, 61 Pa. C.S. § 4302(a), once an execution

warrant is signed by the Governor the execution must occur within 60 days unless a reprieve or

judicial stay is granted.

13

See Petition ¶¶ 14-18 at 4-5.

14

The DOC also argues that this Court lacks jurisdiction to determine compliance with

various state and federal laws because those laws are enforced, in the first instance, by the

relevant state and federal agencies. However, the Petitioners are not asking this Court to enforce

compliance with various state and federal laws. Therefore, the DOC’s contention that this Court

lacks jurisdiction to do so is irrelevant.

19

E. The DOC’s POs Asserting Lack of Standing.

The DOC contends that the Petitioners lack standing because there is

nothing in the Petition that demonstrates any of the Petitioners are “actually facing

the administration of lethal injection, which in terms of the drugs it uses, does not

comport with the state statute.” The DOC’s Brief at 22. The DOC also argues that

Petitioners lack standing to pursue the various federal and state claims asserted

because none of the statutes allow for a private cause of action. Finally, the DOC

contends that Petitioners lack standing to assert that the Protocol violates the

professional ethical standards of both nurses and paramedics.

1. Whether Petitioners have standing to challenge the Protocol?

“In Pennsylvania, the doctrine of standing at issue in this matter is a

prudential, judicially created principle designed to winnow out litigants who have

no direct interest in a judicial matter.” Office of Governor v. Donahue, 98 A.3d

1223, 1229 (Pa. 2014). “The core concept” of standing is that a person who “is not

adversely affected in any way by the matter he seeks to challenge is not

‘aggrieved’ thereby and has no standing to obtain a judicial resolution of his

challenge.” William Penn Parking Garage, Inc. v. City of Pittsburgh, 346 A.2d

269, 280 (Pa. 1975). An aggrieved party is one who can establish a “direct and

immediate interest in the outcome of the litigation.” Fumo v. City of Philadelphia,

972 A.2d 487, 496 (Pa. 2009).

A party’s interest is substantial when it surpasses the

interest of all citizens in procuring obedience to the law;

it is direct when the asserted violation shares a causal

connection with the alleged harm; finally, a party’s

interest is immediate when the causal connection with the

alleged harm is neither remote nor speculative.

20

Donahue, 98 A.3d at 1229.

As argued with regard to Claim I, the DOC maintains that no

Petitioner is actually facing the administration of lethal injection by the methods

detailed in the Protocol because the imposition of their sentences have been

delayed by either a judicial stay, reprieve, or because the Petitioner is not under an

active execution warrant. Again, each Petitioner has been sentenced to death and

currently resides on death row. Accordingly, each Petitioner has a direct interest in

the execution process and drugs utilized as described by the Protocol.

The DOC also argues that Petitioners lack standing to challenge

whether the Protocol was promulgated in violation of the Documents Law, Review

Act, or Attorneys Act or otherwise conflicts with state or federal law. To the

extent Petitioners are sufficiently aggrieved by the contents of the Protocol to

confer standing to challenge the legality of the Protocol, Petitioners would also

have standing to challenge whether it was promulgated in the manner prescribed

by law.

The DOC’s preliminary objection that the Petitioners lack standing to

challenge the Protocol is overruled.

2. Whether Petitioners have standing to challenge whether the Protocol violates

the professional ethical standards of paramedics and nurses?

A petitioner only has standing if he is adversely affected in any way

by the matter he seeks to challenge. William Penn, 346 A.2d at 280. A review of

the record reveals that Petitioners have not supplied facts or allegations

21

demonstrating they are in any way personally aggrieved by nurses and paramedics

carrying out their roles on LITs in violation of their respective ethical obligations.

Further, Petitioners did not reference the specific ethical standard to which they are

referring and chose to not supply arguments in response to the DOC’s POs in this

regard.

The DOC’s PO as it relates to this portion of Claim II addressing

whether Petitioners have standing to challenge whether the Protocol violates the

professional ethical standards of paramedics and nurses is sustained.

____________________________

BERNARD L. McGINLEY, Judge

22

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Terrance Williams; Richard :

Laird; Robert Wharton; Hubert :

Michael, Michael E. Ballard, :

individually and on behalf of :

all others similarly situated, :

Petitioners :

:

v. :

:

Commonwealth of Pennsylvania :

Department of Corrections, : No. 353 M.D. 2014

Respondent :

ORDER

AND NOW, this 15th day of October, 2015, the Department of

Corrections’ Preliminary Objections are overruled in part and sustained in part.

The Preliminary Objection in the nature of a demurrer is overruled. The

Preliminary Objection with regard to jurisdiction is overruled. The Preliminary

Objection with regard to whether the Petitioners have standing to challenge the

Protocol is overruled. The Preliminary Objection with regard to standing to assert

claims related to the ethical standards of nurses and paramedics is sustained.

The Department of Corrections is directed to file an answer within

thirty days of the entry of this Order.

____________________________

BERNARD L. McGINLEY, Judge

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Terrance Williams; Richard :

Laird; Robert Wharton; Hubert :

Michael, Michael E. Ballard, :

individually and on behalf of :

all others similarly situated, :

Petitioners :

:

v. : No. 353 M.D. 2014

: Argued: March 11, 2015

Commonwealth of Pennsylvania :

Department of Corrections, :

Respondent :

BEFORE: HONORABLE DAN PELLEGRINI, President Judge

HONORABLE BERNARD L. McGINLEY, Judge

HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE MARY HANNAH LEAVITT, Judge

HONORABLE P. KEVIN BROBSON, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE ANNE E. COVEY, Judge

OPINION NOT REPORTED

CONCURRING OPINION

BY JUDGE BROBSON FILED: October 15, 2015

I join in most of the majority opinion. I write separately to note my

concurrence with the majority’s conclusion that Claim 1 of the Amended Petition,

challenging the death penalty protocol (Protocol) of the Pennsylvania Department

of Corrections (DOC) as inconsistent with 61 Pa. C.S. § 4304(a)(1), should

withstand DOC’s demurrer. This section provides:

The death penalty shall be inflicted by injecting

the convict with a continuous intravenous administration

of a lethal quantity of an ultrashort-acting barbiturate in

combination with chemical paralytic agents approved by

the department until death is pronounced by the coroner.

The coroner shall issue the death certificate.

(Emphasis added.) Unlike the majority, I do not believe this section can or should

be read as precluding DOC from administering drugs not listed in the statute

during execution, so long as those drugs serve some lawful purpose other than

hastening death.

It is undisputed that the Protocol provides for the administration of a

three-drug cocktail in the following order: (1) pentobarbital or sodium thiopental,

(2) pancuronium bromide, and (3) potassium chloride. With respect to the first

step in the Protocol, Petitioners allege that, unlike sodium thiopental, pentobarbital

is not an ultrashort-acting barbiturate. Neither of the drugs in step two or three of

the Protocol is an ultrashort-acting barbiturate. Accordingly, to the extent the

Protocol allows DOC to substitute pentobarbital for the statutorily-required

ultrashort-acting barbiturate, the Protocol would appear to be contrary to the will of

the General Assembly, as expressed in 61 Pa. C.S. § 4304(a)(1). Also, Petitioners

allege that potassium chloride is neither an ultrashort-acting barbiturate nor a

chemical paralytic agent. Accordingly, to the extent DOC includes potassium

chloride in the Protocol to hasten death and not for some other lawful purpose, its

inclusion in the cocktail would also appear to violate the will of the General

Assembly. Accordingly, while I concur with the majority’s decision to overrule

DOC’s preliminary objection in the nature of a demurrer to Claim 1 in the

Amended Petition, I would only allow Petitioners to pursue the above challenges to

the DOC Protocol as part of Claim 1.

P. KEVIN BROBSON, Judge

PKB-2

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Terrance Williams; Richard Laird; :

Robert Wharton; Hubert Michael, :

Michael E. Ballard, individually and :

on behalf of all others similarly :

situated, :

Petitioners :

: No. 353 M.D. 2014

v. :

: Argued: March 11, 2015

Commonwealth of Pennsylvania :

Department of Corrections, :

Respondent :

BEFORE: HONORABLE DAN PELLEGRINI, President Judge

HONORABLE BERNARD L. McGINLEY, Judge

HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE MARY HANNAH LEAVITT, Judge

HONORABLE P. KEVIN BROBSON, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE ANNE E. COVEY, Judge

OPINION NOT REPORTED

CONCURRING OPINION

BY JUDGE McCULLOUGH FILED: October 15, 2015

I join in the Majority opinion but write separately to make two

observations.

The first relates to the assertions by several inmates (Petitioners) that

the death penalty protocol (Protocol) of the Department of Corrections (the

Department) violates section 4304(a)(1) of the Prisons and Parole Code (Code), 61

Pa.C.S. §4304(a)(1). In pertinent part, section 4304(a)(1) of the Code states that

lethal injection shall consist of “an ultrashort-acting barbiturate in combination

with chemical paralytic agents approved by the [D]epartment….” 61 Pa.C.S.

§4304(a)(1). Petitioners aver that pentobarbital is not an “ultrashort-acting

barbiturate” and that potassium chloride is not a “paralytic agent.”1 For purposes

of demurrer, this Court must accept Petitioners’ allegations as true. See Bell v.

Township of Spring Brook, 30 A.3d 554, 557 n.7 (Pa. Cmwlth. 2011).

I believe that our General Assembly is in a better position than the

courts to determine whether an arguably borderline drug fits (or should fit) within

the statutory definition. Seebold v. Prison Health Services, Inc., 57 A.3d 1232,

1245 & n.19 (Pa. 2012). Unlike this Court, the General Assembly has at its

disposal objective fact-finding tools, including the ability to conduct

comprehensive investigations and policy hearings. See id. Given that the death

penalty is still legally permissible in Pennsylvania, there is necessarily an

overwhelming public interest in ensuring that it is only imposed in strict

accordance with the law. See Commonwealth v. McKenna, 383 A.2d 174, 180-81

(Pa. 1978). Therefore, I submit that the issue as to whether a particular drug

should be used in the lethal injection process should be determined by the

legislature, and I would urge our General Assembly to revise section 4304(a)(1)

and provide a detailed and explicit manner for determining which drugs may

properly be used in a lethal injection.2

1

According to the Protocol, the sequence of administered drugs is as follows: (1)

pentobarbital or thiopental; (2) pancuronlum bromide; and (3) potassium chloride. (Protocol,

Section 3(c)(1)-(9), at 4-25—4-27.)

2

I note that the Majority has determined that Petitioners have stated a viable claim that

the Protocol is invalid for failing to following the requirements of this Commonwealth’s laws

with respect to promulgating regulations.

PAM - 2

I am also troubled by Petitioners’ allegation that licensed registered

nurses participate as members of the lethal injection team (LIT) and perform

venipuncture and administer anesthesia intravenously absent a medical doctor’s

order, in violation of 49 Pa. Code §21.12(1).3 The Department does not dispute

that a registered nurse performs these functions during the lethal injection process,

but argues that the regulation does not apply because a nurse is not engaged in the

practice of professional nursing. I agree with the Majority that Petitioners lack

standing to challenge or otherwise pursue a claim under 49 Pa. Code §21.12(1).

Nonetheless, Petitioners raise significant concerns, the merits of

which should be assessed by the State Board of Nursing (Board), and specifically

whether registered nurses participating as part of the LIT may be violating the

duties imposed by the Board. The Board also should consider whether the

Protocol’s requirement that the identity of the members of the LIT, including

registered nurses, “will remain confidential,” (Protocol, Section 4(B)(2)(c), at 4-3),

creates an anonymity that could potentially cause inter-agency conflict and make it

difficult for the Board to exercise its regulatory and enforcement powers.

Accordingly, I would recommend that the Board either issue an advisory opinion

or clarify its regulations, see section 2.1 of the Professional Nursing Law, Act of

3

This section states:

§ 21.12. Venipuncture; intravenous fluids.

Performing of venipuncture and administering and withdrawing

intravenous fluids are functions regulated by this section, and these

functions may not be performed unless:

(1) The procedure has been ordered in writing for the patient by a

licensed doctor of the healing arts.

49 Pa. Code §21.12(1).

PAM - 3

May 22, 1951, P.L. 317, as amended, added by the Act of July 3, 1974, P.L. 432,

63 P.S. §212.1, so that registered nurses know whether they are complying with

their professional duties or whether they could be subject to disciplinary action. At

the very least, I would suggest that the Board investigate the matter.

With these observations being stated, I join the Majority opinion.

________________________________

PATRICIA A. McCULLOUGH, Judge

Judge Leavitt joins.

PAM - 4