Ronald Phillips v. Mike DeWine

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 16a0267p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

RONALD PHILLIPS; RAYMOND TIBBETTS; ROBERT J. ┐

VAN HOOK, │

Plaintiffs-Appellants, │

│

v. │

> No. 15-3238

│

MIKE DEWINE, Attorney General of the State of │

Ohio; JOHN R. KASICH, Governor of the State of │

Ohio; DONALD MORGAN, Warden of the Southern │

Ohio Correctional Facility; GARY C. MOHR, │

Director of the Ohio Department of Rehabilitation │

and Corrections, │

Defendants-Appellees. │

┘

Appeal from the United States District Court

for the Southern District of Ohio at Columbus.

No. 2:14-cv-02730—Gregory L. Frost, District Judge.

Argued: April 19, 2016

Decided and Filed: November 2, 2016

Before: NORRIS, SILER, and STRANCH, Circuit Judges.

_________________

COUNSEL

ARGUED: Timothy F. Sweeney, LAW OFFICE OF TIMOTHY F. SWEENEY, Cleveland,

Ohio, for Appellants. Tiffany L. Carwile, OFFICE OF THE OHIO ATTORNEY GENERAL,

Columbus, Ohio, for Appellees. ON BRIEF: Timothy F. Sweeney, LAW OFFICE OF

TIMOTHY F. SWEENEY, Cleveland, Ohio, David C. Stebbins, Allen L. Bohnert, Sharon

Hicks, OFFICE OF THE FEDERAL PUBLIC DEFENDER FOR THE SOUTHERN DISTRICT

OF OHIO, Columbus, Ohio, Lisa M. Lagos, OFFICE OF THE OHIO PUBLIC DEFENDER,

Columbus, Ohio, for Appellants. Tiffany L. Carwile, Bridget E. Coontz, OFFICE OF THE

OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellees.

SILER, J., delivered the opinion of the court in which NORRIS, J., joined. STRANCH,

J. (pp 17–35), delivered a separate dissenting opinion.

1

No. 15-3238 Phillips, et al. v. DeWine, et al. Page 2

_________________

OPINION

_________________

SILER, Circuit Judge. In this appeal, a group of inmates sentenced to death in Ohio

challenge the constitutionality of the State’s newly enacted statutory scheme concerning the

confidentiality of information related to lethal injection. The district court dismissed some of

their claims for a lack of standing and the remainder for failure to state a claim. For the reasons

stated below, we AFFIRM.

I.

In December 2014, the Ohio General Assembly passed Substitute House Bill No. 663

(“HB 663”) to address the confidentiality of information related to lethal injection in Ohio. HB

663 contains four provisions relevant to this appeal. First, under HB 663, the identity of

individuals and entities that participate in the lethal injection process is treated as confidential

and privileged under law; cannot be disclosed as a public record; and is not subject to disclosure

during judicial proceedings, except in limited circumstances (the “Confidentiality Provision”).

Ohio Rev. Code §§ 149.43(A)(1)(cc), 2949.221(B)–(C).1 Second, HB 663 directs courts to seal

1

Section 149.43 specifically provides:

(A) As used in this section:

(1) “Public record” means records kept by any public office, including, but not limited to,

state, county, city, village, township, and school district units, and records pertaining to

the delivery of educational services by an alternative school in this state kept by the

nonprofit or for-profit entity operating the alternative school pursuant to section 3313.533

of the Revised Code. “Public record” does not mean any of the following:

....

(cc) Information and records that are made confidential, privileged, and not

subject to disclosure under divisions (B) and (C) of section 2949.221 of the

Revised Code.

In relevant part, § 2949.221 provides:

(B) If, at any time prior to the day that is twenty-four months after the effective date of this

section, a person manufactures, compounds, imports, transports, distributes, supplies, prescribes,

prepares, administers, uses, or tests any of the compounding equipment or components, the active

pharmaceutical ingredients, the drugs or combination of drugs, the medical supplies, or the

medical equipment used in the application of a lethal injection of a drug or combination of drugs

in the administration of a death sentence by lethal injection as provided for in division (A) of

section 2949.22 of the Revised Code, notwithstanding any provision of law to the contrary, all of

No. 15-3238 Phillips, et al. v. DeWine, et al. Page 3

records that contain information related to the identity of an individual or entity that participates

in the lethal injection process unless “the court determines that the record is necessary for just

adjudication” (the “Record-Sealing Provision”). Id. § 2949.222. If the court makes such a

determination, it must hold a private hearing to review the record, and the record is subject to

the following apply regarding any information or record in the possession of any public office that

identifies or reasonably leads to the identification of the person and the person’s participation in

any activity described in this division:

(1) The information or record shall be classified as confidential, is privileged under law,

and is not subject to disclosure by any person, state agency, governmental entity, board,

or commission or any political subdivision as a public record under section 149.43 of the

Revised Code or otherwise.

(2) The information or record shall not be subject to disclosure by or during any judicial

proceeding, inquiry, or process, except as described in division (B)(4) of this section or in

section 2949.222 of the Revised Code.

(3) The information or record shall not be subject to discovery, subpoena, or any other

means of legal compulsion for disclosure to any person or entity, except as described in

division (B)(4) of this section or in section 2949.222 of the Revised Code.

(4)(a) If the information or record pertains to the manufacture, compounding, importing,

transportation, distribution, or supplying of any of the items or materials described in

division (B) of this section, the person or entity that maintains the information or record

shall disclose the information or record to the Ohio ethics commission and the

commission may use the information or record, subject to division (B)(1) of this section,

only to confirm the following:

(i) That the relationship between the person and the department of rehabilitation

and correction is consistent with and complies with the ethics laws of this state;

(ii) That at the time of the specified conduct, the person has all licenses required

under the laws of this state to engage in that conduct and the licenses are valid.

(b) If the Ohio ethics commission receives any information or record pursuant to division

(B)(4)(a) of this section, the commission shall complete its use of the information or

record for the purposes described in that division within fourteen days of its receipt and

shall promptly report its findings to the director of rehabilitation and correction.

(C)(1) If, at any time prior to the day that is twenty-four months after the effective date of this

section, an employee or former employee of the department of rehabilitation and correction or any

other individual selected or designated by the director of the department participates or

participated in the administration of a sentence of death by lethal injection, as provided for in

division (A) of section 2949.22 of the Revised Code, subject to division (C)(2) of this section and

notwithstanding any other provision of law to the contrary, the protections and limitations

specified in divisions (B)(1), (2), and (3) of this section shall apply regarding any information or

record in the possession of any public office that identifies or reasonably leads to the identification

of the employee, former employee, or other individual and the employee’s, former employee’s, or

individual’s participation in the administration of the sentence of death by lethal injection

described in this division.

(2) Division (C)(1) of this section does not apply with respect to information or a record that

identifies or reasonably leads to the identification of the director of rehabilitation and correction or

the warden of the state correctional institution in which the administration of the sentence of death

takes place.

No. 15-3238 Phillips, et al. v. DeWine, et al. Page 4

further disclosure only if, “through clear and convincing evidence presented in the private

hearing, [the court] finds that the person whose identity is protected appears to have acted

unlawfully with respect to the person’s involvement in the administration of a lethal injection.”

Id. § 2949.222(C).2 Third, HB 663 prevents licensing authorities from taking disciplinary action

against an individual or entity based on participation in the lethal injection process (the

“Licensure-Immunity Provision”). Id. § 2949.221(E).3 And fourth, HB 663 permits an

individual or entity who has participated in the lethal injection process to bring “a civil cause of

2

Section 2949.222 provides in full:

(A) As used in this section, “seal a record” means to remove a record from the main file of similar

records and to secure it in a separate file that contains only sealed records accessible only to the

court.

(B) The court promptly shall order the immediate sealing of records containing information

described in division (B) or (C) of section 2949.221 of the Revised Code and the person’s

participation in any activity described in the particular division, whenever the records come into

the court’s possession.

(C) If a record containing information described in division (B) or (C) of section 2949.221 of the

Revised Code and the person’s participation in any activity described in the particular division, is

subpoenaed or requested by a court order, the director of rehabilitation and correction shall

provide the record. If the court determines that the record is necessary for just adjudication, the

court shall order the director to appear at a private hearing with a copy of the record and any other

relevant evidence. The information is not otherwise subject to disclosure unless the court, through

clear and convincing evidence presented in the private hearing, finds that the person whose

identity is protected appears to have acted unlawfully with respect to the person’s involvement in

the administration of a lethal injection as contemplated by the first paragraph of division (B) and

by division (C)(1) of section 2949.221 of the Revised Code.

3

Section 2949.221(E) provides:

If a person or entity that, at any time prior to the day that is twenty-four months after the effective

date of this section, participates in, consults regarding, performs any function with respect to,

including any activity described in division (B) of this section, or provides any expert opinion

testimony regarding an execution by lethal injection conducted in accordance with division (A) of

section 2949.22 of the Revised Code is licensed by a licensing authority, notwithstanding any

provision of law to the contrary, the licensing authority shall not do any of the following as a

result of that participation, consultation, performance, activity, or testimony by the person or

entity:

(1) Challenge, reprimand, suspend, or revoke the person’s or entity’s license;

(2) Take any disciplinary action against the person or entity or the person’s or entity’s

licensure.

No. 15-3238 Phillips, et al. v. DeWine, et al. Page 5

action against any person who discloses the identity and participation in the activity in violation

of this division” (the “Civil-Action Provision”). Id. § 2949.221(F).4

Shortly after HB 663 was passed, Ronald Phillips, Raymond Tibbetts, and Robert Van

Hook, prisoners sentenced to death in Ohio (the “Plaintiffs”), filed an action in federal court

against Ohio Governor John Kasich, Ohio Attorney General Mike DeWine, Director of the Ohio

Department of Rehabilitation and Correction Gary Mohr, and Warden of the Southern Ohio

Correctional Facility Donald Morgan (the “Defendants”), challenging HB 663’s

constitutionality.5 The Plaintiffs brought several claims: (1) a claim that HB 663

unconstitutionally burdens speech (the “Free-Speech Claim”); (2) a claim that HB 663 creates a

regime of unconstitutional prior restraint (the “Prior-Restraint Claim”); (3) claims that HB 663

violates the Plaintiffs’ equal-protection and due-process rights, as well as their right of access to

the courts (the “Equal-Protection, Due-Process, and Right-of-Court-Access Claims”); and (4) a

claim that HB 663 denies the Plaintiffs constitutionally protected access to government

proceedings (the “Right-of-Access-to-Government-Proceedings Claim”).

Mohr and Morgan moved to dismiss the claims against them for lack of subject-matter

jurisdiction under Federal Rule of Civil Procedure 12(b)(1) and for failure to state a claim upon

which relief can be granted under Rule 12(b)(6). They argued that the Plaintiffs lacked standing

to challenge the Licensure-Immunity Provision and the Civil-Action Provision. In addition,

Mohr and Morgan asserted that HB 663’s provisions do not suppress the Plaintiffs’ speech

4

Section 2949.221(F) provides in full:

A person may not, without the approval of the director of rehabilitation and correction, knowingly

disclose the identity and participation in an activity described in the particular division of any

person to whom division (B) of this section applies and that is made confidential, privileged, and

not subject to disclosure under that division or of an employee, former employee, or other

individual to whom division (C)(1) of this section applies and that is made confidential,

privileged, and not subject to disclosure under that division. Any person, employee, former

employee, or individual whose identity and participation in a specified activity is disclosed in

violation of this division has a civil cause of action against any person who discloses the identity

and participation in the activity in violation of this division. In a civil action brought under this

division, the plaintiff is entitled to recover from the defendant actual damages, punitive or

exemplary damages upon a showing of a willful violation of this division, and reasonable

attorney’s fees and court costs.

5

This action was initially joined by a fourth inmate, Grady Brinkley, but he did not participate in this

appeal.

No. 15-3238 Phillips, et al. v. DeWine, et al. Page 6

because they only “limit the information that the State will provide to the public,” and that HB

663 is not an unconstitutional prior restraint because it simply “mak[es] information

confidential” and “does nothing to restrain the exercise of a First Amendment right.” Mohr and

Morgan also claimed that the Plaintiffs failed to state an equal-protection, due-process, access-to-

the-courts, or access-to-government-proceedings claim. Governor Kasich and DeWine moved to

dismiss under Federal Rule of Civil Procedure 12(b)(1) for lack of subject-matter jurisdiction,

claiming that the Eleventh Amendment barred the Plaintiffs’ claims against them. They also

joined in the arguments raised in Mohr’s and Morgan’s motion to dismiss.

The district court granted the Defendants’ motions to dismiss. Phillips v. DeWine, 92 F.

Supp. 3d 702, 705, 718 (S.D. Ohio 2015). After assuming for the sake of argument that the

Eleventh Amendment did not bar the claims against Governor Kasich and DeWine, the court

found that the Plaintiffs lacked standing to challenge the Licensure-Immunity Provision and the

Civil-Action Provision. Id. at 709–12. It reasoned that the Plaintiffs suffered only “conjectural

or hypothetical injuries” rather than the “requisite distinct and palpable injury” required under

Article III. Id. at 711.

In addition, the district court found that the Plaintiffs’ remaining claims were not

plausible. The court read HB 663 as “simply cut[ting] off the [Ohio] government as the source

of . . . information” regarding Ohio’s execution procedures and “plac[ing] a government worker

on the hook for acting as a source.” Id. at 713. Accordingly, the court found, the statute did not

create an unconstitutional prior restraint. Id. at 713–14. The court also concluded that the

Plaintiffs had no constitutional right to the information they claimed they were being deprived of

and that their First, Fifth, and Fourteenth Amendments claims failed because they were premised

on such a right. Id. at 714–16. Therefore, the district court dismissed the case. Id. at 718.6 It

also denied the Plaintiffs’ pending motions for a preliminary injunction and for expedited

discovery as moot.

6

The court also addressed claims that the Plaintiffs made under the Ohio Constitution and found that they

lacked merit. Phillips, 92 F. Supp. 3d at 717–18. On appeal, the Plaintiffs do not appear to challenge this

determination, and, in any event, they have not raised arguments particular to the Ohio Constitution.

No. 15-3238 Phillips, et al. v. DeWine, et al. Page 7

II.

We review dismissals for lack of subject-matter jurisdiction, including those for lack of

standing, de novo. Parsons v. U.S. Dep’t of Justice, 801 F.3d 701, 709 (6th Cir. 2015) (citing

Miller v. Cincinnati, 622 F.3d 524, 531 (6th Cir. 2010)). To the extent we must reach a disputed

issue of fact that the district court resolved, however, we review for clear error. See Askins v.

Ohio Dep’t of Agric., 809 F.3d 868, 872 (6th Cir. 2016). Otherwise, we construe the complaint

in the light most favorable to the Plaintiffs and accept all well-pleaded factual allegations as true.

Barber v. Miller, 809 F.3d 840, 843 (6th Cir. 2015) (citing Thompson v. Bank of Am., N.A.,

773 F.3d 741, 750 (6th Cir. 2014)).

Likewise, we review de novo a grant of a motion to dismiss under Rule 12(b)(6) for

failure to state a claim upon which relief can be granted. Stein v. Regions Morgan Keegan Select

High Income Fund, Inc., 821 F.3d 780, 785 (6th Cir. 2016) (citing Cataldo v. U.S. Steel Corp.,

676 F.3d 542, 547 (6th Cir. 2012)). Again, we construe the complaint in the light most favorable

to the Plaintiffs and accept all well-pleaded factual allegations as true. Id. (citing Laborers’

Local 265 Pension Fund v. iShares Tr., 769 F.3d 399, 403 (6th Cir. 2014)). To withstand a

12(b)(6) motion, “the complaint must contain ‘enough facts to state a claim to relief that is

plausible on its face.’” Long v. Insight Commc’ns of Cent. Ohio, LLC, 804 F.3d 791, 794 (6th

Cir. 2015) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

Notwithstanding the district court’s reasoning, we may affirm its dismissal of the case

“on any ground supported by the record.” Haines v. Fed. Motor Carrier Safety Admin., 814 F.3d

417, 423 (6th Cir. 2016) (quoting Bangura v. Hansen, 434 F.3d 487, 498 n.3 (6th Cir. 2006)).

III.

A.

At the outset, we must determine whether the Plaintiffs have standing, and, if so, for

which of their claims. See Murray v. U.S. Dep’t of Treasury, 681 F.3d 744, 748 (6th Cir. 2012).

Article III, Section 2 of the Constitution provides that federal courts may hear and resolve only

“Cases” and “Controversies.” As a result, “a plaintiff must demonstrate standing for each claim

No. 15-3238 Phillips, et al. v. DeWine, et al. Page 8

he seeks to press.” Davis v. Fed. Election Comm’n, 554 U.S. 724, 734 (2008) (quoting

DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 335 (2006)). To have standing, a plaintiff must

establish (1) an “injury in fact,” meaning “an invasion of a legally protected interest [that] is (a)

concrete and particularized and (b) ‘actual or imminent, not “conjectural” or “hypothetical”’”;

(2) “a causal connection between the injury and the conduct complained of,” i.e., the injury

complained of must be “fairly . . . trace[able] to the challenged action of the defendant, and

not . . . th[e] result [of] the independent action of some third party not before the court”; and

(3) that it is “‘likely,’ as opposed to merely ‘speculative,’ that the injury will be ‘redressed by a

favorable decision.’” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992) (alterations in

original) (citations omitted). These elements are commonly referred to as the “injury-in-fact,”

“causation,” and “redressability” requirements. See Sprint Commc’ns Co., L.P. v. APCC Servs.,

Inc., 554 U.S. 269, 273 (2008). Under this standard, the Plaintiffs lack standing to bring their

Free-Speech and Prior-Restraint Claims.

The Plaintiffs attempt to show that they—as death row inmates—are the “object” of HB

663 and that they therefore have standing to challenge the statute. In Lujan, the Supreme Court

indicated that when “the plaintiff is himself an object of the [government] action . . . at issue . . . ,

there is ordinarily little question that the action or inaction has caused him injury, and that a

judgment preventing or requiring the action will redress it.” 504 U.S. at 561–62. But the Court

distinguished scenarios where a plaintiff is the “object” of a government action from cases in

which “a plaintiff’s asserted injury arises from the government’s allegedly unlawful

regulation . . . of someone else.” Id. at 562. In these instances, “much more is needed” and

standing “is ordinarily substantially more difficult to establish.” Id.

In support of their argument, the Plaintiffs claim that the “principal object” of HB 663 is

“[t]he facilitation of the[ir] death[s].” HB 663 may have been enacted with this broad purpose in

mind, but that is insufficient to make the Plaintiffs the “object” of the statute within the meaning

of Lujan. Instead, the relevant question is whether the Plaintiffs are within the group of

individuals whose conduct the statute regulates. See Lujan, 504 U.S. at 562; State Nat. Bank of

Big Spring v. Lew, 795 F.3d 48, 53 (D.C. Cir. 2015). Upon examination, HB 663 plainly

regulates third parties rather than the Plaintiffs. As discussed above, the Licensure-Immunity

No. 15-3238 Phillips, et al. v. DeWine, et al. Page 9

Provision prohibits licensing authorities from taking disciplinary action against an individual

based on his or her participation in the lethal injection process. Ohio Rev. Code § 2949.221(E).

Because the Plaintiffs lack the capacity to censure, delicense, or otherwise discipline anyone

involved in the lethal-injection process, they are not the objects of this provision.7 Likewise, the

Record-Sealing Provision directs courts—not the Plaintiffs—to seal certain information. Id.

§ 2949.222. As for the Confidentiality Provision and the Civil-Action Provision, they prohibit or

penalize the disclosure of the identity of participants in the execution process. See id.

§§ 149.43(A)(1)(cc), 2949.221(B)–(C), (F). But the Plaintiffs have not argued that they have

information they are prevented from disclosing, and they have indicated that it is “unlikely” that

they will obtain such identifying information. Thus, they are not part of the group whose

conduct the provisions govern. As a result, the Plaintiffs cannot claim standing as the “objects”

of HB 663 under Lujan.

But this is not the end of the matter, because a plaintiff may have standing even if he is

not the object of the relevant statute, though it will be more difficult to show. See Lujan,

504 U.S. at 561–62. Nonetheless, the Plaintiffs’ remaining arguments fail to establish standing

for their Free-Speech and Prior-Restraint Claims.

To establish standing for a free-speech claim, the Plaintiffs generally must show that “the

rule, policy or law in question has explicitly prohibited or proscribed conduct on the[ir] part.”

Parsons v. U.S. Dep’t of Justice, 801 F.3d 701, 711 (6th Cir. 2015) (citing Clapper v. Amnesty

Int’l USA, 133 S. Ct. 1138, 1153 (2013); Nat’l Right to Life Political Action Comm. v. Connor,

323 F.3d 684 (8th Cir. 2003)). In the typical case, a statute must be enforced against the plaintiff

before he may challenge its constitutionality, but pre-enforcement is available in some contexts if

“threatened enforcement [is] sufficiently imminent”—that is, there is “a credible threat” that the

provision will be enforced against the plaintiff. Susan B. Anthony List v. Driehaus, 134 S. Ct.

7

The Plaintiffs claim that the Licensure-Immunity Provision prevents “any efforts to persuade licensing

authorities to take disciplinary action against those participants who are licensed professionals for ethical violations

or other reasons.” This is simply not the case. The provision does not prevent individuals from engaging in speech

to licensing authorities; rather, licensing authorities cannot take disciplinary action regardless of these overtures.

See Ohio Rev. Code § 2949.221(E).

No. 15-3238 Phillips, et al. v. DeWine, et al. Page 10

2334, 2342 (2014).8 Though they aver that HB 663 negatively impacts their right to free speech,

the Plaintiffs have not claimed that they hold any information that the statute prevents them from

disclosing, and they have averred that it is “unlikely” that they will obtain such information.

Moreover, they have not claimed that anyone has threated action against them under the statute.

The district court concluded that the Plaintiffs could not have the Civil-Action Provision

enforced against them because it created potential liability only for an individual who disclosed

“information obtained in an official capacity.” Phillips, 92 F. Supp. 3d at 712. But we need not

decide whether this is the correct reading of HB 663. Regardless of whether the statute could

conceivably apply to the Plaintiffs, they have not shown a credible threat that any of its

provisions could be enforced to prevent the Plaintiffs from engaging in protected speech.

Therefore, any claimed injury is conjectural and hypothetical and will not satisfy the injury-in-

fact requirement. See Clapper, 133 S. Ct. at 1147 (“Although imminence is concededly a

somewhat elastic concept, it cannot be stretched beyond its purpose, which is to ensure that the

alleged injury is not too speculative for Article III purposes—that the injury is certainly

impending.” (quoting Lujan, 504 U.S. at 565 n.2)).9

As for the Prior-Restraint Claim, we have held that “the prospect of prior restraint and

resulting self-censorship can itself constitute the required actual injury” under Article III. Prime

Media, Inc. v. City of Brentwood, 485 F.3d 343, 351 (6th Cir. 2007). Nonetheless, “the

requirement of an actual injury is not obviated by . . . [a] prior restraint claim.” Id. The

8

Because the Civil-Action Provision appears to grant a private right of action to death-penalty participants

whose identity is disclosed, see Ohio Rev. Code § 2949.221(F), it is debatable whether the Plaintiffs could avail

themselves of Susan B. Anthony List’s standard in seeking pre-enforcement review, see MedImmune, Inc. v.

Genentech, Inc., 549 U.S. 118, 128–29 (2007) (“[W]here threatened action by government is concerned, we do not

require a plaintiff to expose himself to liability before bringing suit to challenge the basis for the threat—for

example, the constitutionality of a law threatened to be enforced.”). But because the Plaintiffs cannot establish

standing even under this more favorable standard, we need not resolve the question.

9

The Plaintiffs also argue that they have suffered injury because they, or others acting on their behalf,

cannot attempt to persuade drug manufacturers to cease participation in Ohio’s lethal injection process without

access to the information HB 663 prevents from being disclosed. As discussed above, this injury is not the result of

a “rule, policy[,] or law” that “has explicitly prohibited or proscribed conduct on the part of the [P]laintiff[s]” and

therefore does not provide standing for the Plaintiffs’ Free-Speech Claim. See Parsons, 801 F.3d at 711.

Nonetheless, this injury does provide standing for their Access-to-Government-Proceedings Claim. The Plaintiffs

essentially argue that they are entitled to know the identity of the drug manufacturers, that HB 663 prevents them

from obtaining this information, and that access to the manufacturers’ identity would remedy their injury. This is

sufficient to meet all three standing prongs for this claim. See Fisher v. King, 232 F.3d 391, 396 n.5 (4th Cir. 2000).

No. 15-3238 Phillips, et al. v. DeWine, et al. Page 11

Plaintiffs must, therefore, show that they are in fact “subject to a prior restraint on protected

expression” to establish a sufficient injury. Van Wagner Boston, LLC v. Davey, 770 F.3d 33, 38

(1st Cir. 2014); see also Brammer-Hoelter v. Twin Peaks Charter Acad., 602 F.3d 1175, 1183–

84 (10th Cir. 2010) (“[W]e conclude Plaintiffs do not have standing as to this alleged prior

restraint. Plaintiffs have cited to nothing in the record indicating their speech or association was

altered or deterred in any way by the code, nor have we found any such evidence in our de novo

review of the record.” (footnote omitted)). The Plaintiffs allege that the Record-Sealing

Provision is an unconstitutional prior restraint because it mandates the sealing of documents

during litigation and that the Civil-Action Provision is also a prior restraint because it grants the

Director of the Ohio Department of Rehabilitation and Correction “unfettered discretion” to

permit the disclosure of the identities of lethal-injection participants. But, as discussed above,

the Plaintiffs have not claimed that there is any speech they are likely to engage in that would

require prior approval or otherwise be impeded under these provisions. Thus, they have failed to

establish that they are subject to any prior restraint that HB 663 conceivably imposes, and they

have failed to show an injury-in-fact to support this claim. See Van Wagner Boston, 770 F.3d at

38.

In their complaint, the Plaintiffs claim that “seriously botched lethal[-]injection

executions” have occurred in Ohio, that they have “imminent execution dates,” and that they

have challenged Ohio’s execution practices and protocols in the past. They aver that, as a result

of HB 663, it is “more likely” that their executions will not meet legal standards. But it is not

enough that the Plaintiffs’ executions be imminent, because a validly imposed death sentence

that is properly carried out is not “an invasion of a legally protected interest.” Lujan, 504 U.S. at

560; see also Gregg v. Georgia, 428 U.S. 153, 169 (1976). While a deficient execution is a very

serious matter, the existence of deficiencies in this case is only conjectural or hypothetical and is

therefore not imminent for Article III purposes. See Lujan, 504 U.S. at 564 n.2.

In addition, the Plaintiffs maintain that they have standing to challenge HB 663 as

overbroad or facially invalid “even if [they] have not themselves suffered or been threatened

with actual injury.” This argument simply lacks merit. Bringing an overbreadth claim does not

give the Plaintiffs’ carte blanche to maintain a suit in federal court. When considering these

No. 15-3238 Phillips, et al. v. DeWine, et al. Page 12

claims, courts indeed relax certain standing doctrines because of the potential for an

unconstitutionally overbroad law to “chill” protected speech—that is, the “judicial prediction or

assumption that the statute’s very existence may cause others before the court to refrain from

constitutionally protected speech or expression.” Prime Media, 485 F.3d at 349 (quoting

Virginia v. Am. Booksellers Ass’n, 484 U.S. 383, 392–93 (1988)); see also Savage v. Gee,

665 F.3d 732, 740 (6th Cir. 2012). But this exception applies only to the prudential standing

doctrines, such as the prohibition on third-party standing, and not to those mandated by Article

III itself, such as the injury-in-fact requirement. Prime Media, 485 F.3d at 350; see also Lujan,

504 U.S. at 560 (noting that injury in fact, causation, and redressability form “the irreducible

constitutional minimum of standing”). Therefore, “[a]llegations of a subjective ‘chill’ are not an

adequate substitute for a claim of specific present objective harm or a threat of specific future

harm.” Parsons, 801 F.3d at 711 (quoting Laird v. Tatum, 408 U.S. 1, 13–14 (1972)).

As discussed above, the Plaintiffs have not satisfied the injury-in-fact requirement. In their

complaint, they claim that HB 663 “chills the speech of those participants or former participants

in Ohio lethal injection executions” who might have come to disapprove of the death penalty.

Whether or not this is the case, it constitutes only an allegation of a subjective chill, which is

insufficient to satisfy Article III. See id.

Therefore, the Plaintiffs lack standing to bring their Free-Speech and Prior-Restraint

Claims.

B.

The Plaintiffs also argue that the district court erred in dismissing their Right-of-Access-

to-Government-Proceedings Claim. As a general matter, they claim that the First Amendment

prevents state actors from removing from the public domain information that “pertains to a

government proceeding historically open to the public and for which public access plays a

significant positive role in the functioning of that process.” According to the Plaintiffs, an

execution is such a proceeding. Nonetheless, the Plaintiffs have failed to state a valid claim.

The Supreme Court’s decision in Houchins v. KQED, Inc., 438 U.S. 1 (1978), sets the

baseline principle for First Amendment claims seeking access to information held by the

No. 15-3238 Phillips, et al. v. DeWine, et al. Page 13

government. S.H.A.R.K. v. Metro Parks Serving Summit Cty., 499 F.3d 553, 559 (6th Cir. 2007);

see also United States v. Miami Univ., 294 F.3d 797, 820 (6th Cir. 2002). Houchins recognized

that “[t]he Constitution itself is neither a Freedom of Information Act nor an Official Secrets

Act,” and “[n]either the First Amendment nor the Fourteenth Amendment mandates a right of

access to government information or sources of information within the government’s control.”

438 U.S. at 14–15 (plurality opinion).

An exception to Houchins’s general rule exists. In a line of cases beginning with

Richmond Newspapers v. Virginia, 448 U.S. 555 (1980), the Supreme Court has recognized a

right of access to certain criminal proceedings and the documents filed in those proceedings.

This court has extended this right of access to civil trials, Brown & Williamson Tobacco Corp. v.

F.T.C., 710 F.2d 1165, 1178 (6th Cir. 1983), and plea agreements, United States v. DeJournett,

817 F.3d 479, 484–85 (6th Cir. 2016). And it has used the Richmond Newspapers framework to

analyze whether a right of access exists for university disciplinary proceedings, United States v.

Miami Univ., 294 F.3d 797 (6th Cir. 2002), documents related to the issuance and execution of a

search warrant, In re Search of Fair Fin., 692 F.3d 424 (6th Cir. 2012), and deportation

proceedings, Detroit Free Press v. Ashcroft, 303 F.3d 681 (6th Cir. 2002).

To be sure, this court has stated that the Richmond Newspapers standard could be used

“to determine whether a First Amendment right of access exists in a wide variety of other

contexts,” Fair Fin., 692 F.3d at 429, but this pronouncement was dicta. And, while Detroit

Free Press “question[ed] the vitality of the standard articulated in Houchins,” it only did so

“with respect to cases such as the one presently before [the court]”—a request for public access

to deportation proceedings. 303 F.3d at 694–95. The opinion then hedged on Houchins, finding

that it may still be good law but that it did not apply to “quasi-judicial government administrative

proceeding[s].” Id. at 696. Since Detroit Free Press, this court has treated Houchins as good

law, see S.H.A.R.K., 499 F.3d at 559—which, of course, it is, having never been overruled by the

Supreme Court, see Agostini v. Felton, 521 U.S. 203, 237 (1997).

In cases similar to the one at bar, other circuits have engaged in a Richmond Newspapers

analysis, but none of these decisions provides particularly strong support for doing so here. In

Zink v. Lombardi, the Eighth Circuit applied the “experience and logic” test, but it did so only

No. 15-3238 Phillips, et al. v. DeWine, et al. Page 14

“for the sake of analysis.” 783 F.3d 1089, 1112 (8th Cir.) (per curiam), cert. denied, 135 S. Ct.

2941 (2015). It did not decide whether the standard applied to the claims at issue. Similarly, in

Wellons v. Commissioner, Georgia Department of Corrections, the Eleventh Circuit nominally

applied the “experience and logic” test, but it did so only to address the question as framed by

the plaintiffs in that case. 754 F.3d 1260, 1266 (11th Cir.) (per curiam), cert. denied sub nom.

Wellons v. Owens, 134 S. Ct. 2838 (2014). The only decision to clearly find that the Richmond

Newspapers framework applied under similar circumstances was summarily vacated by a

unanimous Supreme Court. See Wood v. Ryan, 759 F.3d 1076, 1081 (9th Cir.), vacated, 135 S.

Ct. 21 (2014). Our decision is not strictly controlled by this summary decision, as the Supreme

Court found only that the district court did not abuse its discretion in denying a motion for a

preliminary injunction and did not decide whether the plaintiff failed to state a claim for access

to government records. Ryan v. Wood, 135 S. Ct. 21, 21 (2014) (mem.).10 Nonetheless, a

unanimous Supreme Court saw fit to summarily vacate—without briefing or argument—the

Ninth Circuit’s determination that a death-row inmate seeking state-held information related to

the method of his execution “raised serious questions” as to whether he would prevail on a First

Amendment claim. Wood, 759 F.3d at 1086. This ruling raises grave doubts as to whether such

a claim is legally cognizable in the first place.

Therefore, we, like the Eighth Circuit, find the dissent in Wood to be persuasive.

See Zink, 783 F.3d at 1113. The dissent found that the plaintiffs “d[id] not actually assert a right

of access to a governmental proceeding” as recognized by Richmond Newspapers and its

progeny. Wood, 759 F.3d at 1092 (Bybee, J., dissenting). It recognized that this right includes a

related right to access documents “filed” in those proceedings, but also noted that “[the] right

does not extend to every piece of information that conceivably relates to a governmental

proceeding, even if the governmental proceeding is itself open to the public.” Id. Ultimately,

Judge Bybee reasoned that this latter category of information is precisely what the plaintiffs

sought and identified Houchins as supplying the proper rule of decision. Id. at 1093.

10

Specifically, the Court reversed the Ninth Circuit’s finding that the plaintiff “raised serious questions as

to whether a First Amendment right, in the context of a public execution[], attaches to the specific information he

request[ed].” Wood, 759 F.3d at 1086.

No. 15-3238 Phillips, et al. v. DeWine, et al. Page 15

It is worth noting that we have neither adopted nor rejected the Ninth Circuit’s position in

California First Amendment Coalition v. Woodford, 299 F.3d 868, 877 (9th Cir. 2002), that the

public has a right of access to executions under Richmond Newspapers. We need not resolve

that question today. The Plaintiffs do not seek public access to Ohio executions. Rather, their

Right-of-Access-to-Government-Proceedings Claim is premised on an assertion of a First

Amendment right to “government information” that “pertains to a government proceeding.”

Neither this court nor the Supreme Court has ever recognized a right so broad. While the

public’s right of access under the First Amendment covers certain records filed in and transcripts

of a qualifying government proceeding, see DeJournett, 817 F.3d at 484, it does not follow that

this right covers all information related to the proceeding. The right of access to government

proceedings “is not a tool for judges to pry open the doors of state and federal agencies because

they believe that public access to this type of information would be a good idea. It is a qualified

right to certain ‘proceedings and documents filed therein’ and nothing more.” Wood, 759 F.3d at

1092–93 (Bybee, J., dissenting). The information HB 663 prevents from disclosure is neither

information of the type filed in a government proceeding nor its functional equivalent; the

Plaintiffs simply seek information related to Ohio executions. Under these circumstances,

Houchins’s general rule applies. See id. at 1093–94.

Finding that the Plaintiffs have stated a valid claim under Richmond Newspapers would,

of necessity, disregard the general applicability of Houchins and represent a significant—and

unwarranted—expansion of the right of access under the First Amendment as developed by the

Supreme Court and our prior decisions. Therefore, we conclude that the Plaintiffs have failed to

state a claim for a violation of their right of access to government proceedings.

C.

On appeal, the Plaintiffs contend that the district court erred in dismissing their Equal-

Protection, Due-Process, and Right-of-Court-Access Claims. As the basis for these claims, the

Plaintiffs argue that HB 663 prevents them from bringing an effective challenge to Ohio’s

execution procedures. Specifically, they maintain that HB 663 “denies [them] an opportunity to

discover and litigate non-frivolous claims.” But no constitutional right exists to discover

grievances or to litigate effectively once in court. Lewis v. Casey, 518 U.S. 343, 354 (1996); Hill

No. 15-3238 Phillips, et al. v. DeWine, et al. Page 16

v. Dailey, 557 F.3d 437, 439 (6th Cir. 2009). The Plaintiffs have not pointed to any decision

recognizing claims similar to the ones they propose. In fact, federal courts have repeatedly

rejected such theories. See Zink, 783 F.3d at 1108–09; Wellons, 754 F.3d at 1267; Sepulvado v.

Jindal, 729 F.3d 413, 420 (5th Cir. 2013); Williams v. Hobbs, 658 F.3d 842, 852 (8th Cir. 2011);

Giarratano v. Johnson, 521 F.3d 298, 306 (4th Cir. 2008); see also Jones v. Comm’r, Georgia

Dep’t of Corr., 812 F.3d 923 (11th Cir. 2016) (Marcus, J., concurring in the denial of rehearing

en banc) (rejecting an “abstract and inchoate due process right to discover the identity of the

source of the drugs and the name of the executioner so that [an inmate] may challenge [a state’s]

execution protocol”). Therefore, the district court did not err in dismissing these claims.11

D.

The Plaintiffs also maintain that, “[b]ecause the district court erred in dismissing the

[c]omplaint, it also erred in denying as moot the motions for preliminary injunction and

expedited discovery.” As discussed above, however, the case was properly dismissed. When

ruling on a matter disposes of an action in its entirety, a district court is generally correct in

denying all other pending motions as moot. See, e.g., Miami Univ. Wrestling Club v. Miami

Univ., 302 F.3d 608, 616 (6th Cir. 2002). Therefore, remand is not necessary to address the

now-moot matters.

AFFIRMED.

11

In their reply brief, the Plaintiffs also argue that they have stated a plausible Equal-Protection claim

because HB 663 “discriminates based on the exercise of a fundamental right,” namely “[p]rotected speech by lethal

injection opponents.” As discussed above, the Plaintiffs have not alleged that they themselves have been or will

likely be prevented from engaging in protected speech by HB 663. Therefore, it is doubtful that they have standing

to pursue such a claim. Nonetheless, we need not resolve this issue because the Plaintiffs have waived their

argument by failing to raise it in the opening brief. United States v. Hendrickson, 822 F.3d 812, 830 (6th Cir. 2016).

No. 15-3238 Phillips, et al. v. DeWine, et al. Page 17

_________________

DISSENT

_________________

JANE B. STRANCH, Circuit Judge, dissenting. In January 2014, Ohio executed Dennis

McGuire with a lethal injection of midazolam and hydromorphone. At the time, no state had

ever attempted an execution with this combination of drugs. McGuire’s lawyers tried to stay the

execution, arguing—unsuccessfully—that the untested method presented a substantial risk of

causing McGuire severe pain, and thus violated the Eighth Amendment. The State of Ohio

promised a painless execution, pointing to the testimony of an anesthesiologist who, in the

months after the execution, would decide to terminate his contract with the state. It took

25 minutes for McGuire to die, and witnesses reported that “[t]he process . . . was accompanied

by movement and gasping, snorting and choking sounds.” Erica Goode, After a Prolonged

Execution in Ohio, Questions Over ‘Cruel and Unusual’, N.Y. Times, January 17, 2014, at A12.

The priest who accompanied McGuire would later write, “I came out of that room feeling that I

had witnessed something ghastly.”

This horrifying tale of an execution gone wrong underscores what is at stake in this

litigation. Ohio has not carried out an execution since it botched McGuire’s, in part because it

has been unable to obtain the drugs needed for lethal injection. Plaintiffs, inmates under death

sentence, attribute this to successful public advocacy: “Speech opposed to lethal injection as a

means of capital punishment has persuaded various actors essential to that process to cease their

participation . . . .” HB 663 is the Ohio legislature’s answer to this problem. Plaintiffs allege

that HB 663 silences their side of the public debate by assuring that the identities of all

participants in an execution, particularly the drug manufacturers, will be strictly confidential—

anonymity enforced through punitive civil sanctions against anyone who discloses their

identities. Plaintiffs challenge the constitutionality of HB 663.

There can be no doubt: HB 663 will obstruct scrutiny of Ohio’s execution protocol.

I find this deeply troubling. We must not forget that, just four years ago, based on Ohio’s

“persistent failure or refusal . . . to follow its own written execution protocol,” we found it

necessary “to monitor every execution on an ad hoc basis” because Ohio could not be “trusted to

No. 15-3238 Phillips, et al. v. DeWine, et al. Page 18

fulfill its otherwise lawful duty . . . .” In re Ohio Execution Protocol Litig., 671 F.3d 601, 602

(6th Cir. 2012). HB 663 will impede both discovery and monitoring of the violations that we

condemned.

The lead opinion affirms dismissal of plaintiffs’ various claims based on standing or

failure to state a claim. So we do not reach the constitutionality of HB 663 today, though I admit

great misgivings about this law. Instead, we address a more limited question: Did the district

court commit error by foreclosing this constitutional inquiry before it was underway?

Yes, in three respects. First, the district court wrongly concluded that plaintiffs lacked

standing to challenge the civil action provision. Specifically, plaintiffs have standing to raise

their First Amendment right to receive information under Virginia State Board of Pharmacy v.

Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (1976). Second, in evaluating plaintiffs’

First Amendment right of access to execution proceedings and documents, the district court

failed to apply the Supreme Court’s “experience and logic” test. See In re Search of Fair Fin.,

692 F.3d 424, 429–30 (6th Cir. 2012); Detroit Free Press v. Ashcroft, 303 F.3d 681, 695 (6th

Cir. 2002). Applying the proper test, plaintiffs’ allegations are more than sufficient to state a

claim. Lastly, the district court dismissed plaintiffs’ due process claim prematurely. While

plaintiffs may not state a due process claim under an access-to-courts theory, they can do so

under a procedural due process theory. I therefore respectfully dissent.

A. Standing

The lead opinion concludes that plaintiffs do not have standing to challenge HB 663’s

civil action provision. This provision allows any person or entity who has participated in an

Ohio execution—including private persons who manufactured, compounded, imported,

transported, distributed, supplied, prescribed, prepared, administered, used, or tested lethal-

injection drugs, equipment, or other related medical supplies—to bring “a civil cause of action

against any person who discloses [their] identity and participation in the activity.” Ohio Rev.

Code § 2949.221(F). The majority observes that “[p]laintiffs have not argued that they have

information they are prevented from disclosing”—that is, they have not alleged that the civil-

action provision deters them from speaking. (Maj.Op. at 9.) Thus, the majority concludes,

No. 15-3238 Phillips, et al. v. DeWine, et al. Page 19

plaintiffs “are not part of the group whose conduct the provision[] govern[s]” and “cannot claim

standing as the ‘objects’ of HB 663 . . . .” (Id.)

I disagree. It is true that plaintiffs have not alleged that the civil action provision deters

them from disclosing information. But the Supreme Court has long recognized that, in addition

to the right to speak, the First Amendment demands a corollary right to receive information and

ideas. See Va. State Bd. of Pharmacy, 425 U.S. at 756–57 (citing “numerous” Supreme Court

decisions acknowledging the right to receive information and ideas); Allentown Mack Sales

& Serv., Inc. v. N.L.R.B., 522 U.S. 359, 386–87 (1998) (Rehnquist, J., concurring) (“Our

decisions have concluded that First Amendment protection extends equally to the right to receive

information . . . .”). The right to receive information “follows ineluctably” from the speaker’s

right to communicate information and, “[m]ore importantly, . . . is a necessary predicate to the

recipient’s meaningful exercise of his own rights of speech, press, and political freedom.” Bd. of

Educ. v. Pico, 457 U.S. 853, 867 (1982). It is derived, in other words, from the First

Amendment’s role “not only . . . in fostering individual self-expression but also . . . in affording

the public access to discussion, debate, and the dissemination of information and ideas.” Id. at

866.

To have standing to raise a right to receive information claim, a plaintiff must allege that,

but for the challenged restriction, a person would be willing to speak. A willing speaker

engenders protection beyond his own voice. “Freedom of speech presupposes a willing speaker.

But where a speaker exists, . . . the protection afforded is to the communication, to its source and

to its recipients both.” Va. State Bd. of Pharmacy, 425 U.S. at 756; see also Am. Civil Liberties

Union v. Holder, 673 F.3d 245, 255 (4th Cir. 2011) (observing that the First Amendment

“provides standing to persons who are ‘willing listeners’ to a willing speaker who, but for the

restriction, would convey information”); United States v. Wecht, 484 F.3d 194, 203 (3d Cir.

2007) (concluding that a third party has standing to raise a right to receive information claim “as

long as the third party can demonstrate that an individual subject to the [challenged restriction]

would speak more freely if the [restriction] is lifted or modified”); Competitive Enter. Inst. v.

U.S. Dep’t of Transp., 856 F.2d 1563, 1566 (D.C. Cir. 1988) (“It is well established that

petitioners, as listeners, can suffer injury from government regulations that prevent speakers

No. 15-3238 Phillips, et al. v. DeWine, et al. Page 20

from saying what the listeners wish to hear.”); In re Dow Jones & Co., Inc., 842 F.2d 603, 606–

08 (2d Cir. 1988) (same). “The purpose of the ‘willing speaker’ requirement . . . is . . . to ensure

that there is an injury in fact that would be redressed by a favorable decision.” Wecht, 484 F.3d

at 203.

In the present case, plaintiffs allege that “[i]t sometimes happens that persons who have

participated in lethal injection executions will, upon ceasing their participation for whatever

reason, come to believe from the perspective of their first-hand experience in the process that the

death penalty is flawed and should no longer be used.” (R. 1, PageID 41, ¶ 106(g).) Plaintiffs

put flesh on that claim by identifying “two former recent directors” of the Ohio Department of

Rehabilitation and Corrections and “a recent former Ohio Attorney General” as persons who

“have experienced such a conversion.” (Id.) By imposing “severe financial penalties,” plaintiffs

allege, HB 663 “chills the speech of those participants or former participants in Ohio lethal

injection executions who experience such a conversion, with the effect being that such persons

who would otherwise be willing to speak publicly about their experiences will not be willing to

do so . . . .” (Id.) Plaintiffs have alleged the existence of willing speakers who, but for the civil

penalty provision, “would speak more freely.” Wecht, 484 F.3d at 203; see also FOCUS v.

Allegheny Cty. Court of Common Pleas, 75 F.3d 834, 839 (3d Cir. 1996) (concluding that it is

“reasonable to infer” from allegations that litigants “were willing to talk at some point prior to

the entry of the gag orders” that they “are willing but restrained speakers”); In re Dow Jones &

Co., 842 F.2d at 607 (concluding that “[i]t is hard . . . to imagine that there are no willing

speakers” because “[w]ithout them there would be no need for a restraining order”). At this

stage of the litigation, that is sufficient to establish plaintiffs’ standing to raise a right to receive

information claim.

Once standing is established, plaintiffs allege a viable claim that the civil action provision

is an unconstitutional content-based speech restriction.1 “Government regulation of speech is

content based if a law applies to particular speech because of the topic discussed or the idea or

1

Plaintiffs have also alleged that “in its practical operation” the civil penalty provision “goes even beyond

mere content discrimination, to actual viewpoint discrimination.” Sorrell v. IMS Health Inc., 564 U.S. 552, 565

(2011). Even if HB 663 were not content based on its face, these allegations would be sufficient to survive a motion

to dismiss. (See R. 1, PageID 3, 30, 39–40, 49–50, ¶¶ 3, 93, 106(d)–(e), 136.)

No. 15-3238 Phillips, et al. v. DeWine, et al. Page 21

message expressed.” Reed v. Town of Gilbert, 135 S. Ct. 2218, 2227 (2015). A court should

“consider whether a regulation of speech ‘on its face’ draws distinction based on the message a

speaker conveys.” Id. Facially content-based laws are subject to strict scrutiny. Id. This is

because “[l]imiting speech based on its ‘topic’ or ‘subject’ favors those who do not want to

disturb the status quo,” and thus poses “the same dangers as laws that regulate speech based on

viewpoint.” Id. at 2233 (Alito, J., concurring); see also id. at 2238 (Kagan, J., concurring)

(“[W]e have recognized that such subject-matter restrictions, even though viewpoint-neutral on

their face, may ‘suggest[ ] an attempt to give one side of a debatable public question an

advantage in expressing its views to the people.’”) (citation omitted). In making this

determination, the court may also consider the law’s “stated purposes” and “practical effect.”

Sorrell v. IMS Health Inc., 564 U.S. 552, 565 (2011).

The civil action provision here singles out speech “bearing a particular message”: the

identity of state actors or private persons who manufacture, compound, import, transport,

distribute, supply, prescribe, prepare, administer, use, or test lethal-injection drugs, equipment, or

other related medical supplies. To determine whether a person’s identity has been disclosed, one

must look to the content of the speech, not simply the time, place, or manner in which it occurs.

HB 663 is thus content based on its face.

Even though some of the disclosures barred by HB 663 “could be considered a kind of

governmental information,” Sorrell, 564 U.S. at 568, plaintiffs’ challenge to the civil action

provision is not reduced to a claim for access to governmental proceedings and information.

Where “no private party face[s] a threat of legal punishment,” a law may be characterized as

“nothing more than a governmental denial of access to information in its possession.” Id. But

where the law “prohibit[s] a speaker from conveying information that the speaker already

possesses,” and the speaker faces criminal or civil penalties for violating the law, “[a]n

individual’s right to speak is implicated.” Id.

By its plain terms, § 2949.221(F) creates a cause of action against any person—whether a

state actor or a private person or entity—who discloses the identity of a participant in a lethal

No. 15-3238 Phillips, et al. v. DeWine, et al. Page 22

injection.2 The law does not differentiate based on the source of the information; a private

person or entity may be sued even if the disclosed information is obtained by legal means.

So, for example, if the employee of a compounding facility discovers rampant violations of

Ohio’s execution protocol, the employee cannot go public without risking a financially ruinous

lawsuit. Or, if a newspaper publishes an article that links a compounding facility to the

manufacture of lethal injection drugs, the compounding facility may sue the newspaper for

disclosing its identity—even if the newspaper ascertained this information by legal means.

Plaintiffs’ prior-restraint claim also appears viable. “A ‘prior restraint’ exists when the

exercise of a First Amendment right depends on the prior approval of public officials.” Bronco’s

Entm’t, Ltd. v. Charter Twp. of Van Buren, 421 F.3d 440, 444 (6th Cir. 2005). “It is settled by a

long line [of Supreme Court decisions] that an ordinance which . . . makes the peaceful

enjoyment of freedoms which the Constitution guarantees contingent upon the uncontrolled will

of an official—as by requiring a permit or license which may be granted or withheld in the

discretion of such official—is an unconstitutional censorship or prior restraint upon the

enjoyment of those freedoms.” FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 226 (1990)

(quoting Shuttlesworth v. City of Birmingham, 394 U.S. 147, 151 (1969)).

HB 663 does not create an official system of permits or licenses for disclosing the

identities of participants in state executions. It does, however, immunize persons who disclose

such information from a civil action if—and only if—one of the defendants here, the Director of

the Ohio Department of Rehabilitation and Corrections, approves the disclosure. The law does

not set forth any criteria for making this determination, nor does it impose any constraint on the

Director’s exercise of discretion. It thus appears to invest a government official with “unbridled

discretion” to decide who may convey this information. That is sufficient to state a prior-

restraint claim.

2

The district court avoided this question by reading § 2949.221(F) to authorize suit against state actors

alone. This is a strained and, in my view, erroneous interpretation of § 2949.221(F). Because the majority

concludes that plaintiffs do not have standing under either interpretation, that reading does not resolve this issue.

No. 15-3238 Phillips, et al. v. DeWine, et al. Page 23

B. Right of Access to Execution Proceedings and Documents

The lead opinion concludes that plaintiffs have failed to state a First Amendment claim

based on their right of access to execution proceedings and documents. (Maj.Op. at 12.) The

majority’s analysis turns on its decision to apply Houchins v. KQED, Inc., 438 U.S. 1 (1978),

rather than the “experience and logic” test set out in Press-Enterprise Co. v. Superior Court of

Cal., 478 U.S. 1 (1986). I think it was error to use the Houchins analysis. Both Supreme Court

and Sixth Circuit precedent indicate that the experience and logic test applies to this case. If that

test is used, there is little question that plaintiffs have stated a right of access claim.

1. The experience and logic test applies here.

In Press-Enterprise Co., the Supreme Court announced that the First Amendment right of

access applies to a particular proceeding or record if it has “historically been open to the press

and the general public” and “public access plays a significant positive role in the functioning of

the particular process in question”—and we have adopted that test. See In re Search of Fair Fin.,

692 F.3d at 429–30 (citing Press-Enterprise Co., 478 U.S. at 8) (adopting and applying the

experience and logic test to an issue of access to documents involving a search warrant). If a

proceeding or document “passes this ‘experience and logic’ test, a qualified right of access

attaches to it.” Id. at 429. Where a qualified right exists, a document may be sealed only if it is

“essential to preserve higher values” and is “narrowly tailored” to serve those ends. Id.

In In re Search of Fair Finance, we explained that though the experience and logic test

originated in criminal proceedings, it has been used “to determine whether a First Amendment

right of access exists in a wide variety of other contexts,” including “whether there is a right of

access to civil trials, administrative hearings, deportation proceedings, and municipal planning

meetings.” Id.; see also Detroit Free Press, 303 F.3d at 695 (observing that the “experience and

logic test” has been applied to a number of different proceedings “outside the criminal judicial

context, including administrative proceedings”); United States v. Miami Univ., 294 F.3d 797,

822–23 (6th Cir. 2002) (observing that “[u]niversity disciplinary proceedings are not criminal

proceedings,” but nevertheless applying the “experience and logic test” to “determin[e] whether

a qualified First Amendment right of access attaches”). And, we added, it “has been further

No. 15-3238 Phillips, et al. v. DeWine, et al. Page 24

extended beyond hearings and meetings to determine whether there is a First Amendment right

of access to documents and other materials.” In re Search of Fair Fin., 692 F.3d at 429–30; see

also United States v. DeJournett, 817 F.3d 479, 484 (6th Cir. 2016) (observing that the Sixth

Circuit has applied the experience and logic test to judicial records). Thus, we concluded, it was

“appropriate to apply the test . . . in considering whether there should be access to documents

involved with the issuing and execution of a search warrant.” In re Search of Fair Fin., 692 F.3d

at 430. In reaching this conclusion, we “reject[ed] the government’s suggestion that there is no

First Amendment right of access to search warrant documents . . . due to the fact that the search

warrant application process is an investigative rather than a criminal proceeding.” Id.

If the experience and logic test applies to agriculture department voter lists, university

student disciplinary proceedings, municipal planning meetings, and state agency records, see In

re Search of Fair Fin., 692 F.3d at 430; Detroit Free Press, 303 F.3d at 695, then it applies to

execution proceedings and documents. No circuit has concluded otherwise. The only circuit to

consider whether the public has a right of access to view executions—the Ninth Circuit—applied

the experience and logic test and concluded that “the public enjoys a First Amendment right to

view executions from the moment the condemned is escorted into the execution chamber,

including those ‘initial procedures’ that are inextricably intertwined with the process of putting

the condemned inmate to death.” Cal. First Amendment Coal. v. Woodford, 299 F.3d 868, 877

(9th Cir. 2002).

All three circuits to address the question in the present case, moreover, have applied the

experience and logic test. See Zink v. Lombardi, 783 F.3d 1089, 1112–13 (8th Cir. 2015); Wood

v. Ryan, 759 F.3d 1076, 1081–83 (9th Cir. 2014); Wellons v. Comm’r, Ga. Dep’t of Corr.,

754 F.3d 1260, 1266 (11th Cir. 2014). The Ninth Circuit held that, under the experience and

logic test, the plaintiff had “raised serious questions as to whether a First Amendment right, in

the context of a public executions, attaches to the specific information he requests.” Wood,

759 F.3d at 1086. It thus “grant[ed] a conditional preliminary injunction, staying [the plaintiff’s]

execution until the State of Arizona has provided him with (a) the name and provenance of the

drugs to be used in the execution and (b) the qualifications of the medical personnel.” Id. at

1088.

No. 15-3238 Phillips, et al. v. DeWine, et al. Page 25

The Eighth and Eleventh Circuits applied this test and did not find a right of access.

Those cases, however, are distinguishable and do not support the proposition that a right of

access is barred as a matter of law. The decision in the Eighth Circuit, Zink, turned on pleading

deficiencies. See 783 F.3d at 1112 (observing that the plaintiffs had “fail[ed] to allege a

‘tradition of accessibility’ to that information” and “ha[d] not alleged facts or cited authority

establishing that the particulars of execution methods have ‘historically been open to the press

and general public’”). It thus simply stands for the proposition that, when the experience and

logic test applies, plaintiffs must set forth allegations that satisfy the test to survive a motion to

dismiss.

The decision in the Eleventh Circuit, Wellons, held that “the district court did not abuse

its discretion in concluding that [the plaintiff] is not entitled to injunctive relief on [the right of

access] claims.” 754 F.3d at 1267. Crucial to the district court’s decision, however, was the fact

that the plaintiff had asserted a personal rather than public right of access: the district court

acknowledged “First Amendment implications involved in the openness of government

operations,” but concluded that “the cases [the plaintiff] relies upon turn on the public’s, rather

than the individual’s, need to be informed so as to foster debate.” Id. at 1266. Here, by contrast,

plaintiffs are raising both their right of access and that of the public.3

2. The majority’s reliance on Houchins is misplaced.

In Detroit Free Press, we provided three reasons why “Houchins [was] not the applicable

standard to resolve the First Amendment claim of access” in that case; all apply equally here.

See Detroit Free Press, 303 F.3d at 694. First, “[t]he issue before the Court in Houchins . . . was

‘whether the news media have a constitutional right of access to a county jail, over and above

that of other persons, to interview inmates and make sound recordings, films and photographs

for publication and broadcasting by newspapers, radio and television.’” Id. (quoting Houchins,

438 U.S. at 3). In Detroit Free Press and the present case, by contrast, the plaintiffs “do not

3

The procedural posture also makes this case different from Wellons. 754 F.3d at 1263. In Wellons, the

plaintiff needed to show a likelihood of success on the merits; in the present case, plaintiffs need only show that they

have pled sufficient allegations to state a claim. See id.

No. 15-3238 Phillips, et al. v. DeWine, et al. Page 26

claim a ‘special privilege of access’” to information about the source of lethal-injunction drugs.

Id. The plaintiffs here expressly seek access for themselves and the public.

Second, we observed that “Houchins rested its holding on the Court’s interpretation of

the press clause,” which is “distinct from the speech clause”—the clause at issue here. Id.

Indeed, the Supreme Court’s “line of cases from Richmond Newspapers to Press-Enterprise

II”—which were decided after Houchins and interpreted both the speech and press clauses—

“recognize that there is in fact a limited constitutional right to some government information and

also provide a test of general applicability for making that determination.” Id. at 700.

Third, we questioned whether Houchins even remained good law. We pointed to Justice

Stevens’s concurrence in Richmond Newspapers, which emphasized that Houchins “represented

a plurality opinion of the Court.” Id. at 694. As such, its conclusions were “neither accepted nor

rejected by a majority of the Court.” Id. Indeed, “[i]n repeatedly applying Richmond

Newspapers’s two-part ‘experience and logic’ test,” we reasoned, it would seem “clear that the

[Supreme] Court has since moved away from its position in Houchins.” Id. at 695. As for the

“policy reasons underlying the Court’s plurality opinion in Houchins,” we added, the experience

and logic test “sufficiently addresses all of the Houchins Court’s concerns for the implications of

a constitutionally mandated general right of access to government information.” Id. at 694-95.

For all of these reasons, we “question[ed] the vitality of the standard articulated in Houchins.”

Id. at 694.

Houchins does not control the present case for one more reason: unlike the regulation in

Houchins, HB 663 shrouds the sources of lethal-injection drugs in absolute secrecy. The

Supreme Court has indicated that a regulation that completely bars access is materially distinct

from a regulation that only partially restricts access. The Houchins Court, for example, took care

to emphasize that the regulation did not “prevent [the newspapers] from learning about jail

conditions in a variety of ways, albeit not as conveniently as they might prefer.” 438 U.S. at 15.

It noted that the newspapers could “receive letters from inmates criticizing jail officials and

reporting on conditions,” could “interview those who render the legal assistance to which

inmates are entitled,” as well as “seek out former inmates, visitors to the prison, public officials,

and institutional personnel . . . .” Id. at 14. In specifying these avenues—avenues unavailable

No. 15-3238 Phillips, et al. v. DeWine, et al. Page 27

here—the Court cited to an earlier decision in which it expressed skepticism of any “attempt by

the State to conceal the conditions in its prisons or frustrate the press’ investigation and reporting

of those conditions.” Pell v. Procunier, 417 U.S. 817, 830 (1974).

The Houchins Court’s analysis was fashioned to address a regulation that only partially

restricted access. It effectively concluded that the access already available to the newspapers

satisfied the First Amendment. HB 663 presents an entirely different—and more alarming—

restriction because “there exist no alternative means . . . to learn about” the source of lethal-

injection drugs. Detroit Free Press, 303 F.3d at 696 n.12. Our case law teaches that Houchins is

the wrong framework for this case. Under our precedent, this panel should apply the experience

and logic test, the Supreme Court’s test for determining whether the public is entitled to access at

all. That test is the proper determiner of whether HB 663 is unconstitutional.

3. Wood does not raise “grave doubts” about plaintiffs’ claim.

The lead opinion suggests that the Supreme Court’s summary disposition in Wood “raises

grave doubts as to whether [a right-of-access] claim is legally cognizable in the first place.”

(Maj.Op. at 14.) This reads too much into the Court’s three-sentence order. The plaintiff in

Wood, a death row inmate scheduled for lethal injection, had requested information from the

Arizona Department of Corrections on the source of the lethal-injection drugs that would be used

in his execution, information about the qualifications of those persons who would administer the

drugs, and information and documents related to how the Department developed its lethal-

injection protocol. 759 F.3d at 1079. The Department denied this request and the plaintiff sued,

arguing that “by deliberately concealing lethal injection information, the Department ha[d]

violated [his] . . . First Amendment . . . right to be informed about the manner in which Arizona

implements the death penalty . . . .” Id. He requested a preliminary injunction “preventing the

Department from carrying out his execution until it provide[d] him with the information he

request[ed].” Id. The district court denied the preliminary injunction. Id.

As discussed above, the Ninth Circuit applied the experience and logic test on appeal and

granted a preliminary injunction. Id. at 1086–88. Two days later, the full court denied rehearing

en banc. Judge Kozinski dissented, concluding that if the plaintiff in Baze v. Rees, 553 U.S. 25

No. 15-3238 Phillips, et al. v. DeWine, et al. Page 28

(2008), “could not get a stay of execution under the Eighth Amendment,” then the plaintiff in

Woods “certainly is not entitled to one under the First.” Id. at 1102 (Kozinski, J., dissenting from

denial of rehearing en banc). Judge Kozinski did not address the underlying merits of the First

Amendment right-of-access claim; he addressed only whether the plaintiff was entitled to a stay

of execution.4

Judge Kozinski’s dissent tracked an argument made by Judge Bybee, who dissented from

the majority opinion. Judge Bybee argued that even if the plaintiff’s First Amendment claim had

merit, he was not entitled to a stay of execution:

No one doubts that [the plaintiff] “has a strong interest in being executed in a

constitutional manner.” Beaty v. Brewer, 649 F.3d 1071, 1072 (9th Cir. 2011).

But the right asserted by [the plaintiff] differs from the constitutional challenges

often raised by inmates facing execution. The First Amendment right of public

access inheres in all of the members of the public, and not just the inmate who has

been sentenced to death . . . . It is not self-evident that the First Amendment right

will be irreparably harmed if that information is not disclosed before [the

plaintiff’s] execution, but is instead disclosed only if the view espoused by [the

plaintiff] ultimately prevails after the case is fully litigated. Whatever benefit

society derives from being able to discuss who made the drug and who injected it

would presumably still inure to the public if that conversation occurred after [the

plaintiff] has been executed.

Id. at 1100–01 (Bybee, J., dissenting). Notably, the majority itself acknowledged that “[t]here

are special considerations in a capital case when a plaintiff requests a stay of execution,” that the

government has a “strong interest in enforcing its criminal judgments,” and that “filing an action

that can proceed under § 1983 does not entitle the complainant to an order staying an execution

as a matter of course.” Id. at 1080.

In a three-sentence order issued on July 22, 2014—one day before the plaintiff’s

scheduled execution—the Supreme Court vacated the Ninth Circuit’s judgment granting a

conditional preliminary injunction. Ryan v. Wood, 135 S. Ct. 21 (2014). The Court did not

address the merits of the plaintiff’s underlying First Amendment claim. Rather, the Court

appears to have concluded, as did Judge Kozinski, that even if an inmate has a viable First

4

The other dissenters questioned the majority’s application of the experience and logic test (as well as the

standard for granting a preliminary injunction), but did not argue that the experience and logic test did not apply. Id.

at 1103–05 (Callahan, J., dissenting).

No. 15-3238 Phillips, et al. v. DeWine, et al. Page 29

Amendment right-of-access claim, this claim is insufficient to grant a stay of execution. The

Court’s summary disposition in Wood does not raise “grave doubts” about whether plaintiffs’

First Amendment right-of-access claim is legally cognizable.

4. Plaintiffs’ allegations state a First Amendment right-of-access claim.

Plaintiffs satisfy both parts of the experience and logic test. First, their complaint sets

forth a number of allegations that the proceeding or record has “historically been open to the

press and the general public,” In re Search of Fair Fin., 692 F.3d at 429, including:

 The information necessary to refute the misconception that lethal injection provides

an “enviable” “quiet death” has come from various traditionally open sources and

proceedings including litigation/evidentiary hearings, discovery, public records

requests, media reports, and investigations, among other sources. (R. 1, PageID 17,

¶ 55.)

 There is no history or tradition—let alone a long history or tradition—in Ohio of

restricting speech against those persons and entities who have chosen, for their own

personal, political, economic, or other reasons, and who are compensated for their

participation, to supply drugs and other essential execution supplies or to otherwise

perform professional services for purposes of lethal injection executions. To the

contrary, in fact, there is a history of openness in Ohio’s execution process. (R. 1,

PageID 52, ¶ 148.)

 Key participants have always been subject to public scrutiny and their identities never

shielded, with the exception of some DRC employees actually on the execution team

(for whom existing protections, even if proper, are already sufficient without HB

663). For example, the identities of the following direct and indirect participants in

Ohio’s lethal injection executions have never been shielded but would be now under

the Challenged Provisions of HB 663: (i) medical and other experts and consultants

retained by the State; (ii) drug suppliers and pharmacists used by the State for

securing the execution drugs; (iii) doctors, nurses, and mental health professionals

conducting the required checks and assessments on an inmate in the minutes, hours

and days leading up to an execution; (iv) doctors and nurses directly participating in

executions (including, for example, the doctor who participated in [the] attempted

execution [of death row inmate Romell Broom]); (v) doctors assessing the inmate’s

status during an execution and pronouncing death; (vi) pharmacists, lawyers, and

other professionals involved in providing the required periodic trainings and

rehearsals for the execution team members; and (vii) many other direct participants in

executions including DRC upper management personnel at levels below the director,

DRC lawyers (e.g., during Broom’s attempted execution), DRC’s spokespersons and

press officers, and the DRC employees who create the contemporaneous execution

No. 15-3238 Phillips, et al. v. DeWine, et al. Page 30

timeline for an execution or otherwise generate documents related to administration

of the execution protocol. (R. 1, PageID 52–53, ¶ 149.)

 This public right of access has constitutional protection because . . . executions and

associated documents and information have historically been open to the press and

general public, in Ohio and in other states . . . . (R. 1, PageID 64, ¶ 204.)

Plaintiffs’ complaint also sets forth a number of allegations that “public access plays a

significant positive role in the functioning of the particular process in question,” In re Search of

Fair Fin., 692 F.3d at 429, including:

 This public right of access has constitutional protection because . . . the public access

plays a significant positive role in the functioning of the execution process. (R. 1,

PageID 64–65, ¶ 204.)

 An informed public debate is critical in determining whether a specific execution

method comports with this country’s evolving standards of decency, and even more

so at this time in history where, for reasons addressed throughout this Complaint,

there is intense public interest in whether lethal injection is capable of being

administered in a humane manner. (R. 1, PageID 65, ¶ 205.)

 Given the factual backdrop of the many recent botched executions and the

unavailability of execution drugs manufactured by the companies of big-Pharma,

more information about the drugs used in lethal injections can help an alert public

make more informed decisions about the evolving standards of decency in this

country surrounding lethal injection. Knowing the source of the drugs, and the

qualifications, credentials, competence, protocols, and reputation of the drug makers

and other professionals involved in the execution process, among other information,

allows the public to discern whether Defendants are using safe and reliable drug

manufacturers, and would give the public the basic confidence, beyond the State’s

generic assurances, that executions will be administered safely and pursuant to certain

qualifications and standards. (R. 1, PageID 65, ¶ 206.)

Finally, plaintiffs allege that the Ohio secrecy law is not justified by a compelling interest,

and that the law is not narrowly tailored. Because these allegations are sufficient to state a First

Amendment right-of-access claim, I would reverse the district court’s order dismissing this

claim.

C. Procedural Due Process

The lead opinion disposes of plaintiffs’ due process claim in a single paragraph, citing to

cases in which inmates have raised a constitutional right of access to the courts. Specifically, the

No. 15-3238 Phillips, et al. v. DeWine, et al. Page 31

majority points to Lewis v. Casey, 518 U.S. 343 (1996), where the Supreme Court held that an

inmate’s right of access to courts does not include conferral of “sophisticated legal capabilities.”

Id. at 354. Inmates have a right to the resources “need[ed] in order to attack their

sentences . . . and . . . challenge the conditions of their confinement,” the Court explained, but

the Constitution “does not guarantee inmates the wherewithal to transform themselves into

litigating engines capable of filing everything from shareholder derivative actions to slip-and-fall

claims.” Id. at 355.

This is not a case about extraneous litigation: it is a case about death-sentenced inmates

seeking information required “in order to attack their [death] sentences.” Id. The appropriate

analysis of plaintiffs’ due process claim employs the procedural due process framework set forth

in the line of cases beginning with Goldberg v. Kelly, 397 U.S. 254 (1970), and Mathews v.

Eldridge, 424 U.S. 319 (1976). This framework is outlined in detail in Jones v. Commissioner,

812 F.3d 923 (11th Cir. 2016), where a bare majority of judges—six of the Eleventh Circuit’s

eleven judges—voted to deny rehearing en banc of a decision upholding Georgia’s Lethal

Injection Secrecy Act. Four dissenting judges joined Judge Wilson’s excellent dissent, which

concludes that the Eleventh Circuit’s rejection of “due process challenges to the Secrecy Act

without applying [the Goldberg and Mathews procedural due process] framework” is “legal

error” that “is fatal to [its] jurisprudence.” Id. at 935 (Wilson, J., dissenting). The majority here

makes the same error.

Procedural due process analysis proceeds in two steps. First, the court must determine

“[w]hether any procedural protections are due,” which “depends on the extent to which an

individual will be ‘condemned to suffer grievous loss.’” Morrissey v. Brewer, 408 U.S. 471,

481, 483–90 (1972) (specifying minimum due process requirements for parole revocation). “The

Fourteenth Amendment’s Due Process Clause protects persons against deprivations of life,

liberty, or property; and those who seek to invoke its procedural protection must establish that

one of these interests is at stake.” Wilkinson v. Austin, 545 U.S. 209, 221, 224 (2005) (finding a

protected liberty interest in avoiding state assignment to a supermax prison). Thus, the Due

Process Clause requires procedural protections when the loss is both weighty and “within the

No. 15-3238 Phillips, et al. v. DeWine, et al. Page 32

contemplation of the ‘liberty or property’ language of the Fourteenth Amendment.” Morrissey,

408 U.S. at 481.

Once the court determines that an interest is entitled to procedural protections, “the

question remains what process is due.” Id. To answer this question, the court “evaluate[s] the

sufficiency of particular procedures” using the framework set forth in Mathews, which entails

weighing the following factors:

First, the private interest that will be affected by the official action; second, the

risk of an erroneous deprivation of such interest through the procedures used, and

the probable value, if any, of additional or substitute procedural safeguards; and

finally, the Government’s interest, including the function involved and the fiscal

and administrative burdens that the additional or substitute procedural

requirement would entail.

Wilkinson, 545 U.S. at 224–25.

In the present case, the interest at stake is the right to be executed in a manner that

comports with the Eighth Amendment’s prohibition on “cruel and unusual punishments.”

Glossip v. Gross, 135 S. Ct. 2726, 2737 (2015). As Judge Wilson observes in his dissent in

Jones, the Supreme Court has recognized far less weighty interests as “grievous losses” entitled

to procedural protections, such as property interests in continuing civil servant employment and

receiving public utilities. See Jones, 812 F.3d at 937–38 (Wilson, J., dissenting). A prisoner’s

“right to be free from an unconstitutional invasion of his body is a liberty interest under the

Fourteenth Amendment.” Jones, 812 F.3d at 938 (citing Union Pac. Ry. Co. v. Botsford,

141 U.S. 250, 251 (1891); Washington v. Harper, 494 U.S. 210, 229 (1990) (holding that “[t]he

forcible injection of medication into a nonconsenting [prisoner’s] body represents a substantial

interference with that person’s liberty” under the Fourteenth Amendment)). To vindicate this

interest, an inmate must have a fair opportunity to challenge unconstitutional methods of

execution. See Hall v. Florida, 134 S. Ct. 1986, 2001 (2014) (“The death penalty is the gravest

sentence our society may impose. Persons facing that most severe sanction must have a fair

opportunity to show that the Constitution prohibits their execution.”) American jurisprudence

has long recognized the “heightened concern for fairness and accuracy that has characterized our

review of the process requisite to the taking of a human life . . . .” Ford v. Wainwright, 477 U.S.

No. 15-3238 Phillips, et al. v. DeWine, et al. Page 33

399, 410, 414 (1986) (holding that the Eighth Amendment prohibits inflicting the death penalty

on a prisoner who is insane). The plaintiffs are thus entitled to procedural protections that

guarantee “the basic ingredient of due process, namely, an opportunity to be allowed to

substantiate a claim before it is rejected.” Id.

The next question, then, is whether HB 663 deprives plaintiffs of procedural protections

to which they are entitled. To make this determination, the court must weigh the Mathews

factors. Plaintiffs have alleged that “[b]y concealing critical information about the specific drugs

the State intends to use to execute [them],” HB 663 “frustrates [their] ability to fairly and

effectively litigate their claims relating to the constitutionality of their executions by lethal

injection,” and thus “denies Plaintiffs their rights not to be deprived of their lives without due

process of law.” (R. 1, PageID 62–63, ¶¶ 196, 198.)5 Indeed, the district court itself

acknowledged that HB 663 would “unquestionably handicap[] Plaintiffs’ pursuit of their

protocol challenge in related litigation.” Phillips v. DeWine, 92 F. Supp. 3d 702, 716 (S.D. Ohio

2015). Noting that the harsh result from its decision “is a matter of some unease,” the court

explained,

In execution protocol challenges, the law tells death-sentenced inmates to bring

evidence into the courtroom while concurrently upholding a scheme that places

the bulk of select evidence outside the reach of the inmates. The necessary is also

the withheld: you must give us that which you cannot have to give. In order to

challenge the use of a drug that will be used to execute them, inmates must

explain why use of that drug presents a risk of substantial harm. But the inmates

are not allowed to know from where the drug came, how specifically it was

manufactured, or who was involved in the creation of the drug.

Id. at 716–17. Plaintiffs have thus properly alleged a life or liberty interest in a constitutional

execution, protected by due process requirements, and that their interest is placed at risk of

erroneous deprivation by HB 663.

I agree with Judge Wilson and the four judges who joined him that “[i]t is simply not

difficult to conceive of a cost-effective procedure through which [Ohio] may account for death

row prisoners’ due process rights while protecting its stated interests” in “continuing to

5

In their parallel suit against Ohio’s execution protocol, In re Ohio Execution Protocol (16-3149), plaintiffs

explain at length how this secrecy undermines their constitutional claims.

No. 15-3238 Phillips, et al. v. DeWine, et al. Page 34

administer capital punishment in a fiscally and administratively viable manner.” Jones, 812 F.3d

at 940. For example, Ohio could ban public release of the information, but provide prisoners

limited access under protective order. Id. Based on the allegations in the complaint, then, I think

that the Mathews factors weigh heavily for the plaintiffs and they have stated a due process

claim.

D. CONCLUSION

The decision today undermines constitutional protections in several particulars. It denies

standing to bring a First Amendment claim based on the right to receive information, barring the

plaintiffs from obtaining information essential to pursuit of their claims and denying the public

information necessary to, and historically used for, developing the evolving standards of decency

that govern our society and should inform our law. Second, it denies the plaintiffs’ First

Amendment claim to right of access to execution proceedings and documents, a claim fairly

stated under the applicable experience and logic test. Finally, it fails our due process test: it

rejects a claim without providing (actually while prohibiting) an opportunity to prove it.

The complaint properly alleges speech that speakers desire to utter and both the plaintiffs

and the public desire to hear. It alleges that HB 663 is a direct reaction to anti-death-penalty

speech that historically has been available to the public—speech that had proven successful in

the court of public opinion. And it alleges the inherent wrong of imposing evidentiary standards

an inmate must meet to protect his right to be executed in compliance with the Eighth

Amendment, then denying him the opportunity to challenge secrecy laws that prohibit him, or

anyone on his behalf, from obtaining that information. It is simply not enough to acknowledge

“unease” with or the “absurdity” of that constitutional catch 22. And there is no need here to

engage in such conscience-soothing rhetoric because plaintiffs’ allegations state a claim.

Death penalty cases are not just about punishing a convicted person. These cases are

also about protecting the functioning of our justice system, which for the reasons stated above

envisions a forum for addressing the claims made in this litigation, and perhaps

other litigation over state lethal injection secrecy laws. It is my belief that our criminal justice

system does—and should—provide death-sentenced inmates a fair opportunity “to show that the

No. 15-3238 Phillips, et al. v. DeWine, et al. Page 35

Constitution prohibits their execution” before we reject their claims. See Hall, 134 S. Ct. at

2001.

Accordingly, I respectfully dissent.