Roy Lee Ward v. Robert E. Carter, Jr., Commissioner of the Indiana Department of Correction, and Ron Neal, Superintendent of the Indiana State Prison, In Their Official Capacities

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
David W. Frank Curtis T. Hill, Jr.
Christopher C. Myers & Associates Attorney General of Indiana
Fort Wayne, Indiana
Stephen R. Creason
Chief Counsel
Indianapolis, IN
__________________________________________________________________________________
In the FILED
Indiana Supreme Court Feb 13 2018, 11:54 am
_________________________________ CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
No. 46S03-1709-PL-00569
ROY LEE WARD,
Appellant (Plaintiff below),
V.
ROBERT E. CARTER, JR.,
COMMISSIONER OF THE INDIANA
DEPARTMENT OF CORRECTION, AND
RON NEAL, SUPERINTENDENT OF THE
INDIANA STATE PRISON, IN THEIR OFFICIAL
CAPACITIES.
Appellees (Defendants below).
_________________________________
Appeal from the LaPorte Circuit Court, No. 46C01-1512-PL-2154
The Honorable Thomas J. Alevizos, Judge
_________________________________
On Petition to Transfer from the Indiana Court of Appeals, No. 46A03-1607-PL-1685
_________________________________
February 13, 2018
Goff, Justice.
Plaintiff challenges the Department of Correction’s change to Indiana’s lethal injection
protocol, arguing the combination of drugs used in executions is a substantive rule that must be
promulgated pursuant to the Administrative Rules and Procedures Act. We disagree. Because the
Department’s decision to add Brevital to the lethal injection cocktail does not carry the effect of
law—that is, the change does not impose standards regulating Ward’s conduct—we hold the new
three-drug protocol is not a rule and, therefore, not subject to the Administrative Rules and
Procedures Act.
Factual and Procedural History
Plaintiff, Roy Ward, sits condemned on Indiana’s “death row” at Indiana State Prison in
LaPorte County. Ward was sentenced to death by execution in 2007 for a 2001 rape and murder. See
Ward v. State, 903 N.E.2d 946, aff’d on reh’g, 908 N.E.2d 595 (Ind. 2009), cert. denied, 559 U.S.
1038 (2010). The Indiana Code commands that “[t]he punishment of death shall be inflicted by
intravenous injection of a lethal substance or substances into the convicted person.” Ind. Code § 35-
38-6-1(a) (2014 Repl.). The Code tasks the Indiana Department of Correction (the Department) with
housing death-row offenders and administering executions by lethal injection. See I.C. chapter 35-
38-6.
In May 2014, the Department announced a change to the lethal injection protocol.
Specifically, the Department said it would alter the three-drug combination used for executions,
replacing Sodium Thiopental with Brevital—a barbiturate anesthetic in the same class. Following
that announcement, Indiana’s three-drug execution protocol included Brevital, followed by
Pancuronium Bromide and then Potassium Chloride.
On December 22, 2015, Ward filed a complaint in the LaPorte Circuit Court, naming as
defendants Bruce Lemmon, then-Commissioner of the Department, and Ron Neal, the
Superintendent of the Indiana State Prison.1 The complaint alleged the Department’s change to the
lethal injection protocol violated Ward’s rights under Indiana’s Administrative Rules and Procedures
Act (ARPA) along with his due course of law and due process rights under the Indiana and United
States constitutions. All Ward’s claims hinged upon his contention that the Department’s new three-
drug cocktail amounted to an administrative “rule” that must be adopted and promulgated pursuant
to ARPA.
1
At some point during this litigation Robert E. Carter, Jr., replaced Mr. Lemmon as Commissioner and was
substituted as a proper party in this appeal pursuant to Indiana Appellate Rule 17(C)(1).
2
The Defendants moved to dismiss Ward’s complaint under Trial Rule 12(B)(6), arguing it
failed to state a claim upon which relief could be granted. Following a hearing, the trial court granted
the State’s motion. It concluded: “Defendants were not required to go through ARPA as changing a
drug in the lethal injection protocol is considered an internal policy and not rule promulgation.”
Ward appealed, and the Court of Appeals reversed the trial court’s order dismissing the
complaint. Ward v. Carter, 79 N.E.3d 383 (Ind. Ct. App. 2017). The Court of Appeals holding proved
twofold. First, in response to a newly raised argument from the Defendants, the court held the
Department must follow ARPA when promulgating rules. Id. at 387. Second, it held the
Department’s execution protocol constituted a “rule” and since the Department failed to follow
ARPA’s requirements when adding Brevital to the three-drug combination, “the changed protocol
is void and without effect.” Id. at 388.
The Defendants then sought transfer, which we granted, thereby vacating the Court of
Appeals opinion. See Ind. Appellate Rule 58(A). The central issue presented in this case concerns
whether the Department’s lethal injection protocol constitutes a “rule” for ARPA purposes. Ward
contends the protocol is a rule and, therefore, must go through ARPA’s notice-and-comment
rulemaking requirements. On the other hand, the Defendants maintain the lethal injection protocol
is an internal Department policy exempt from ARPA’s strictures. For the reasons set forth below,
we agree with the Defendants and affirm the trial court.
Standard of Review
Since a 12(B)(6) motion to dismiss for failure to state a claim challenges only the legal
sufficiency of the complaint, it presents a legal question that we review de novo. Thornton v. State,
43 N.E.3d 585, 587 (Ind. 2015). We may affirm a dismissal under 12(B)(6) “if it is sustainable on
any basis in the record.” Id.
Discussion and Decision
I. Administrative rules carry the effect of law, which means they prescribe binding
standards of conduct on a regulated person.
ARPA governs agency rulemaking—i.e., adding, amending, or repealing administrative
rules. Ind. Code § 4-22-2-13(a) (2012 Repl.). ARPA, however, does not apply to “[a] resolution or
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directive of any agency that relates solely to internal policy, internal agency organization, or internal
procedure and does not have the effect of law.” Id. at §4-22-2-13(c)(1). The parties debate whether
the Department’s lethal injection protocol—specifically, the drug combinations used in executions—
constitutes a rule or internal policy or procedure under the ARPA statute.
ARPA defines “rule” accordingly:
(b) “Rule” means the whole or any part of an agency statement of general
applicability that:
(1) has or is designed to have the effect of law; and
(2) implements, interprets or prescribes:
(A) law or policy; or
(B) the organization, procedure, or practice requirements of an agency.
Id. at § 4-22-2-3(b). Case law defines an administrative “rule” similarly, laying out four elements:
(1) “an agency statement of general applicability to a class;” (2) that is “applied prospectively to the
class;” (3) that is “applied as though it has the effect of law;” and (4) that “affect[s] the substantive
rights of the class.” Villegas v. Silverman, 832 N.E.2d 598, 609 (Ind. Ct. App. 2005) (citing
Blinzinger v. Americana Healthcare Corp., 466 N.E.2d 1371, 1375 (Ind. Ct. App. 1984)). We
observe straightaway that both definitions share the “effect of law” element. What’s more, we see
the “effect of law” requirement distinguishes agency rules from internal policies or procedures.
Compare I.C. § 4-22-2-3(b)(1) (instructing administrative rules carry the effect of law), with I.C. §
4-22-2-13(c)(1) (instructing that internal agency policies and procedures do not). Taken together,
Indiana law instructs that agency rules must carry the “effect of law”—a term left largely undefined
in our jurisprudence.
A. To date, Indiana law provides an incomplete explanation for “effect of law.”
We first acknowledge that this Court’s case law addressing the “effect of law” has been
limited to cases involving the reach of our court rules. For example, over the past century, we
routinely instructed that courts have power to adopt rules that “have the force and effect of law, and
are obligatory upon the court, as well as upon the parties to causes pending before it.” Magnuson v.
Billings, 152 Ind. 177, 180, 52 N.E. 803, 803-04 (1899) (emphasis added). See also Rout v. Ninde,
111 Ind. 597, 598, 13 N.E. 107, 107-08 (1887); State v. Van Cleave, 157 Ind. 608, 609, 62 N.E. 446,
447 (1902); Epstein v. State, 190 Ind. 693, 697, 128 N.E. 353, 353 (1920); State ex rel. Spelde v.
Minker, 244 Ind. 421, 422, 193 N.E.2d 365, 365 (1963). While we have not expanded upon that
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principle, we recently rephrased it by stating court rules “have the force and effect of law . . . and are
binding on both the court and all litigants.” In re Adoption of J.T.D., 21 N.E.3d 824, 831 (Ind. 2014)
(internal citations and quotation marks omitted). Overall, these cases instruct that a court rule governs
more than procedure—a rule having “the effect of law” necessarily touches individual substantive
rights too. See id. (stating that when a rule carries the “effect of law” litigants “have the right to
assume that [the rule] will be uniformly enforced by the court, in conservation of their rights, as well
as to secure the prompt and orderly dispatch of business”) (quoting Magnuson, 52 N.E. at 804).
Although we find this precedent instructive, we recognize its limitations since it considers court
rules, not agency rules.
Our Court of Appeals had the opportunity to apply the term “effect of law” to agency rules
in the ARPA case, Villegas v. Silverman, 832 N.E.2d 598. There, the court considered whether the
Bureau of Motor Vehicles’s documentation requirements for obtaining Indiana driver licenses,
permits, and identification cards constituted an agency rule subject to ARPA’s rulemaking
procedures. Id. at 608-10. Considering both ARPA’s and the common law’s definition for “rule,”
the court concluded the BMV’s “identification requirements . . . constitute a rule.” Id. at 609.
As for the “effect of law” element specifically, the court determined “[t]he requirements are
designed to have the effect of law because if an applicant does not produce the necessary
documentation, then he or she cannot obtain a driver license, permit, or identification card.” Id. The
court did not unpack this statement, but we appreciate its value nonetheless. As we see it, the BMV’s
requirements carried the effect of law not just because they created rights or obligations, but because
of who bore those rights or obligations—the individual, not the agency. Per the BMV requirements,
the Villegas plaintiffs had to alter their conduct (provide certain documents) to receive the
substantive benefits the law afforded (driver licenses, ID cards, or permits). And there was no latitude
in compliance.
In support of its conclusion that the BMV’s requirements represented an agency rule, the
court went on to explain why the BMV’s requirements did not amount to an agency resolution or
directive, writing “[t]he new identification requirements do not relate primarily to the BMV’s
internal policies, procedures, or organization.” Id. The court then focused on the requirements’
impact: “The primary impact of the identification requirements is external, and it is the primary
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impact that is paramount.” Id. The court said that “the identification requirements primarily impact
applicants seeking new issuances of driver licenses, permits, and identification cards because it [sic]
sets forth what is essential for them to obtain such cards.” Id. at 610.
From Villegas, we surmise that if an agency requirement primarily affects citizens’ conduct,
it has the effect of law and constitutes a rule. Alternatively, if the agency requirement primarily
affects agency conduct (internal policies or procedure), then it is an agency directive or resolution
without the effect of law. We recognize the Court of Appeals did not utilize its “primary impact”
reasoning in the “effect of law” analysis, but we still find it instructive to our task here since the
“effect of law” element distinguishes a rule from an internal policy or directive. In sum, gleaning
what we can from Indiana jurisprudence, we understand that a rule having the “effect of law”
primarily affects individuals’ substantive rights or conduct and can be enforced in a court of law.
But since Indiana courts have considered “effect of law” in very few cases, our case law remains
incomplete. Consequently, we turn to United States Supreme Court precedent for guidance.
B. United States Supreme Court “effect of law” precedent provides clarity.
The Supreme Court laid the foundation for “effect of law” in Chrysler Corporation v. Brown,
441 U.S. 281, 301 (1979), when it said: “In order for a regulation to have the ‘force and effect of
law,’ it must have certain substantive characteristics”— meaning it must “affect[] individual rights
and obligations,” id. at 302. That case, in part, presented the question of whether certain agency
regulations have the force and effect of law for purposes of the Trade Secrets Act. Id. at 295. The
Court explained that agency rules have procedural and substantive characteristics. Rules first must
derive from legislative authority, id. at 302, and then be properly promulgated, id. at 303. However,
the Court labeled the substantive component—affecting individual rights and obligations—the
“important touchstone for distinguishing those rules that may be ‘binding’ or have the ‘force of
law.’” Id. at 302.
The Supreme Court built upon that cornerstone laid in Chrysler when it said the phrase “force
and effect of law . . . ‘connotes official, government-imposed policies’ prescribing ‘binding standards
of conduct.’” Am. Trucking Ass’ns, Inc. v. City of Los Angeles, 569 U.S. 641, 649 (2013) (quoting
Am. Airlines, Inc. v. Wolens, 513 U.S. 219, 229 n.5 (1995) (citation omitted) (“[T]he phrase ‘having
the force and effect of law’ is most naturally read to ‘refer to binding standards of conduct that
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operate irrespective of any private agreement.’”)). In American Trucking, the Court considered
whether requirements adopted by the Port of Los Angeles carried the “effect of law” for purposes of
federal preemption. Id. at 648-49. Specifically, the Port required that certain trucking companies
enter into “concession agreements” that mandated the companies affix placards on some trucks and
submit parking plans for unused trucks. Id. at 645. The Port prescribed penalties for noncompliance.
For example, a company’s failure to enter into these agreements could result in a “misdemeanor . . .
punishable by a fine of up to $500 or a prison sentence of up to six months.” Id. The Port’s
requirements left trucking companies with a choice, either conform their conduct to Port standards
or face penalties. In determining whether the Port’s requirements carried the “effect of law,” the
Court explained the phrase “targets the State acting as the State,” that is, when the State regulates
individual conduct. Id. at 650. In other words, if an agency rule acts as a coercive mechanism or
wields coercive power over people, it carries the effect of law. See id. at 650-51. Ultimately, the
Court held that since the Port’s regulations imposed mandatory obligations on trucking companies,
those regulations had the force and effect of law. Id. at 652.
Weaving together this federal and state precedent, we observe a common thread—a rule
carrying the effect of law primarily affects individual rights and obligations by setting binding
standards of conduct for persons subject to its authority. This “effect of law” concept manifests in
everyday situations where Hoosiers must conform their conduct to meet agency standards. To be
sure, when an agency standard requires citizens to alter their behavior—i.e., when it regulates their
conduct—it necessarily affects the citizens’ rights or obligations because it compels them to do
something they would not do otherwise or face legal consequences for noncompliance. And so that
agency standard carries the effect of law. We therefore settle on the following summation of the
phrase “effect of law” for Indiana jurisprudence: An agency regulation carries the effect of law when
it prescribes binding standards of conduct for persons subject to agency authority.
II. Since the Department’s lethal injection protocol does not bind Ward’s conduct, it
does not have the effect of law.
Ward’s complaint alleged the Department’s three-drug execution protocol amounted to a rule
subject to ARPA’s notice-and-comment rulemaking requirements. In support of that allegation, the
complaint thrice stated: “The new rules have the effect of law.” Notably, Ward attached and
incorporated into the complaint five exhibits that either detail the lethal injection process or confirm
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the Department purchased Brevital. Three of those five—Exhibits C, D, and E—are confidential or
restricted Department documents that list the drugs approved for use in executions. Because Ward
cabined his claim to the three-drug cocktail—specifically, adding Brevital—we confine our “effect
of law” analysis to portions of those three exhibits that discuss the drugs approved for lethal
injections. In other words, we must determine whether the Department’s lethal injection three-drug
protocol prescribes binding standards of conduct for condemned offenders. It does not. In our view,
the exhibits Ward presented as Indiana’s lethal injection process represent an internal policy or
procedure, not an administrative rule having the effect of law.
Exhibit C, for example, is a three-page document that identifies what drugs are used for lethal
injections and outlines how the Department obtains, stores, prepares, and administers them. It
instructs that one of the drugs that could be used during an execution is Brevital. Exhibit C places
no requirements on the condemned offender’s conduct. Instead, it informs Department personnel
what they must do to prepare and use the pharmaceuticals during a lethal injection.
Exhibit D is a longer Department document detailing the entire lethal execution protocol,
including procedures the Department will use in the weeks, days, hours, and even minutes before an
execution. But for our purposes here, we consider one paragraph in Exhibit D’s Section F, which
states, Department “[s]taff are trained by a licensed physician in the mixing, preparation, and
administration of the Sodium Thiopental, Pentobarbital or Brevital, Pancuronium Bromide or
Vecuronium and Potassium Chloride.” Section F goes on to read: “In the event of an unavailability
of a sufficient quantity of Sodium Thiopental from available resources, a sufficient quantity of
Pentobarbital, or Brevital will be acquired and administered in the place of the Sodium Thiopental.”
Exhibit D’s one paragraph discussing the drugs used during lethal injections in no way regulates the
offender’s behavior or conduct.
Exhibit E is a one-page document, akin to a checklist, designating and sequencing the drugs
approved for lethal injections. Exhibit E directs that Sodium Pentothal, Pentobarbital, or Brevital
must be placed in a yellow syringe, Pancuronium or Vecuronium must be placed in a blue syringe,
Potassium Chloride must be placed in a red syringe, and Saline must be placed in a black syringe.
Like Exhibits C and D, Exhibit E does not require an offender to do anything or alter his or her
behavior in any way.
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In our view, none of these exhibits primarily affect an offender’s rights or obligations. No
exhibit prescribes binding standards of conduct that condemned offenders, like Ward, must follow
to vindicate a substantive right. Unlike the Villegas plaintiffs or the American Trucking companies,
Ward is not required to alter his conduct in any way. He is not faced with a choice of conforming his
conduct to Department standards or foregoing a substantive right—his fate remains unaltered.
Rather, the exhibits outline what Department personnel must do. They relate to the Department’s
internal policies and procedures that bind Department personnel and no one else. We therefore
conclude that the Department’s lethal injection protocol, as evidenced by these exhibits, does not
carry the effect of law. Consequently, we hold the Department’s lethal injection procedures do not
constitute rules under Section 4-22-2-3(b) and are exempt from ARPA’s rulemaking strictures.
Because we resolve Ward’s claims on this narrow ground, we decline to address the Defendant’s
alternative, broader argument that the Department is free to decide whether to follow ARPA when
promulgating rules governing executions by lethal injection.
We pause briefly to note that Ward does not raise an Eighth Amendment cruel-and-unusual-
punishment argument here. His Indiana and federal constitutional claims cited only due process
violations, which hinged upon whether the Department’s lethal injection protocol amounted to a rule
subject to ARPA. Since we hold the Department protocol does not carry the effect of law and
therefore is not a rule subject to ARPA, his constitutional claims necessarily fail.
Conclusion
For these reasons, we affirm the trial court’s judgment dismissing Ward’s complaint.
Rush, C.J., and David, Massa, and Slaughter, JJ., concur.
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