IN THE ARKANSAS SUPREME COURT

WENDY KELLEY, in her official capacity

as Director of the Arkansas Department of
Correction, and the ARKANSAS
DEPARTMENT OF CORRECTION
v.

APPELLANTS

No. CV 15-992

STACEY JOHNSON, JASON MCGEHEE,

BRUCE WARD, TERRICK NOONER,
JACK JONES, MARCEL WILLIAMS,
KENNETH WILLIAMS, DON DAVIS,
and LEDELL LEE

APPELLEES

EMERGENCY MOTION FOR IMMEDIATE STAY OF ALL

PROCEDINGS IN THE CIRCUIT COURT PENDING APPEAL OR,
ALTERNATIVELY, FOR A TEMPORARY STAY
Wendy Kelley, in her official capacity as Director of the Arkansas
Department of Correction, and the Arkansas Department of Correction (ADC)
(collectively, Appellants or the State) file this emergency motion for an
immediate stay of all proceedings in the circuit court pending appeal or,
alternatively, for an immediate temporary stay pending plenary briefing on the
propriety of a stay pending appeal and, in support, state:
1.

The lawsuit giving rise to this appeal involves constitutional

challenges brought by nine death-row inmates (collectively, the Prisoners)

against Arkansass method of execution act, Act 1096 of 2015, and the ADCs
current lethal-injection procedure. Five of the eight substantive claims asserted by
the Prisoners in this case seek disclosure of information that identifies the entities
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and persons who test, sell, or supply the ADCs lethal-injection drugs (information
that is confidential under Act 1096) under various constitutional theories. In this
motion, the State requests this Court to (1) immediately stay all proceedings in the
circuit court pending appeal, or (2) enter an immediate temporary stay pending
plenary briefing on the propriety of a stay pending appeal.
2.

The General Assembly adopted the confidentiality provisions in Act

1096 to address the highly-publicized problem of drug shortages preventing state

departments of correction from accessing drugs for use in lethal injection
executions. Act 1096, 1(b). It is important to the State and its citizens that this
Court be the entity that decides this question of significant public policy import.
3.

At 1:10 p.m. on Thursday, December 3, 2015, the Pulaski County

Circuit Court (Hon. Wendell L. Griffen, presiding) declared the confidentiality

provision in Section 2(i)(2) of Act 1096 unconstitutional and null and void,
effective immediately. In doing so, the circuit court denied the States motion for
summary judgment on all claims based on sovereign immunity.
4.

In its December 3 order, the circuit court also ordered the State to

publicly disclose the identity of the manufacturer, seller, distributor, and supplier
of any lethal injection drugs to be used in the execution of any of the plaintiffs
and to produce . . . un-redacted package inserts, shipping labels, laboratory test
results, and product warnings pertaining to any drugs Defendants will administer
2

during the method of execution (MOE) protocol for each Plaintiff not later than
Noon on December 4, 2015. See Memorandum Order (Dec. 3, 2015), a true and
correct copy of which is attached hereto as Exhibit 1; Scheduling Order (Oct. 12,
2015), a true and correct copy of which is attached hereto as Exhibit 2. A partial
record containing certified copies of these orders has been lodged with the Clerk.
5.

Unless this Court enters a stay immediately (or at least before Noon

tomorrow), the circuit courts December 3 disclosure order effectively will deprive
the State of appellate review of the States sovereign immunity defense to all of the
claims in this case, including all of the various claims seeking production of the
lethal drug supplier information at issue. Stated differently, the lower courts order
will effectively give the death-row inmates an unreviewable victory on most of
their claims in this case. No disclosure should be required until the disclosurerelated claims are finally resolved on the merits by this Court.
6.

The circuit courts order ignores controlling precedent from the

United States Supreme Court and this Court, misapplies the applicable standards of
review, overlooks the Plaintiffs failure to meet proof with proof and establish
essential elements of their claims, and invents out of whole cloth new
constitutional rights that simply do not exist. No final order of an appellate court
anywhere in the country has ordered disclosure of lethal drug supplier information
under the theories espoused by the Prisoners in this case, and many, many courts
3

have considered and rejected these claims on sound and well-established grounds.
See, e.g., Glossip v. Gross, 135 S. Ct. 2726 (2015) (upholding similar three-drug
lethal injection protocol against Eighth Amendment challenge and holding that
death row inmates must prove, among other things, the existence of a feasible and
readily-implemented alternative method of execution); Wood v. Ryan, 759 F.3d
1076, 1097 (9th Cir.) (Bybee, J., dissenting) (discussing how disclosure of drug
sources hinders the states ability to perform executions), revd sub nom. Ryan v.
Wood, 135 S. Ct. 21 (2014).
7.

Indeed, other death-penalty states have adopted far more stringent

confidentiality provisions than Arkansass, which have universally been upheld on

judicial review when challenged by death-row inmates. See, e.g., Ariz. Rev. Stat.
Ann. 13-757(C) (West 2010) (making identity of persons who participate or
perform ancillary functions in an execution confidential and . . . not subject to
disclosure), upheld by Ryan, 135 S. Ct. at 21 (holding that the district judge did
not abuse his discretion in denying the condemned inmates motion for a
preliminary injunction seeking disclosure of information regarding the supplier of
lethal drugs); Fla. Stat. Ann. 945.10(1)(g) (classifying [i]nformation which
identifies an executioner, or any person prescribing, preparing, compounding,
dispensing, or administering a lethal injection as confidential and exempt from
disclosure under public records law), held constitutional by Bryan v. Florida, 753
4

So.2d 1244, 1250 (Fla. 2000); Ga. Code Ann. 42-5-36(d)(2) (West 2014)
(making the identity of persons or entities who supply, participate in, or administer
lethal drugs a confidential state secret not subject to disclosure), held
constitutional by Owens v. Hill, 758 S.E.2d 794 (Ga. 2014); Ohio Rev. Code Ann.
2949.221 (West 2015) (classifying as confidential and not subject to disclosure,
even in most judicial proceedings, all information that identifies or reasonably
leads to the identification of persons and entities who manufacture, compound,
import, transport, distribute, supply, prescribe, prepare, administer, use, or test any
of the compounding equipment or components, the active pharmaceutical
ingredients, the drugs, the medical supplies, or the medical equipment used in
lethal injections), held constitutional by Phillips v. DeWine, No. 2:14-CV-2730,
2015 WL 667602 (S.D. Ohio Feb. 17, 2015); 22 Okla. Stat. Ann. 1015(B) (West
2003 & Supp. 2014) (The identity of all persons who participate in or administer
the execution process and persons who supply the drugs, medical supplies or
medical equipment for the execution shall be confidential and shall not be subject
to discovery in any civil or criminal proceedings.), held constitutional by Lockett
v. Evans, 330 P.3d 488 (Okla. 2014); S.D. Codified Laws 23A-27A-31.2 (2004
& Supp. 2014) (making disclosure of confidential information regarding the
name, address, qualifications, and other identifying information relating to the
identity of any person or entity supplying or administering the intravenous
5

injection substance a criminal offense), presumed constitutional and applied in

Moeller v. Weber, No. CIV 04-4200, 2013 WL 5442392 (D.S.D. Sept. 30, 2013);
Tenn. Code Ann. 10-7-504(h)(1) (preventing disclosure of information
identifying persons and entities involved in the execution process even pursuant to
a court order), upheld by West v. Schofield, 460 S.W.3d 113 (Tenn. 2015). In
upholding lethal-injection confidentiality provisions, courts recognize that,
without the confidentiality offered to execution participants by the statute, there
is a significant risk that persons and entities necessary to the execution would
become unwilling to participate. Hill, 758 S.E.2d at 805.
8.

This Court should be afforded an opportunity to rule upon the

significant constitutional issues of first impression presented in this appeal before

any unreviewable relief is afforded the Prisoners.
9.

Based on the foregoing, the State requests that this Court enter an

immediate stay of all proceedings in the circuit court pending the final disposition
of this appeal. The State requests that the stay order be entered prior to Noon on
Friday, December 3, 2015, which is deadline for the disclosures ordered by the
circuit court.
10.

In the alternative, this Court should enter an immediate temporary

stay of the circuit courts December 3, 2015, order pending plenary briefing on the

propriety of a stay pending appeal. Like a permanent stay order, any temporary
stay order should be entered before Noon tomorrow.
WHEREFORE, Appellants Wendy Kelley and the Arkansas Department of
Correction pray that the Court grant their emergency motion for an immediate stay
or alternative request for a temporary stay and for all other relief to which they
may be entitled.
Respectfully submitted,
LESLIE RUTLEDGE
Attorney General
By:

/s/ Jennifer L. Merritt

LEE RUDOFSKY (2015015)
Solicitor General
DAVID A. CURRAN (2003031)
Deputy Attorney General
JENNIFER L. MERRITT (2002148)
Assistant Attorney General
323 Center Street, Suite 200
Little Rock, Arkansas 72201
Tel: (501) 682-1319
Fax: (501) 682-2591
Lee.Rudofsky@ArkansasAG.gov
David.Curran@ArkansasAG.gov
Jennifer.Merritt@ArkansasAG.gov
Attorneys for Petitioners

CERTIFICATE OF SERVICE
I, Jennifer L. Merritt, do hereby certify that on this 3rd day of December,
2015, I filed the foregoing document with the Clerk of Court and that I served a
copy via e-mail upon the following:
Jeff Rosenzweig, Esq.
jrosenzweig@att.net
Josh R. Lee, Esq.
Josh_R_Lee@fd.org
John C. Williams, Esq.
John_C_Williams@fd.org
Deborah Sallings, Esq.
deborahsallings@gmail.com
/s/ Jennifer L. Merritt
Jennifer L. Merritt

ELECTRONICALLY FILED
Pulaski County Circuit Court
Larry Crane, Circuit/County Clerk

2015-Dec-03 13:19:25
60CV-15-2921
C06D05 : 32 Pages

EXHIBIT

ELECTRONICALLY FILED
Pulaski County Circuit Court
Larry Crane, Circuit/County Clerk

2015-Oct-12 09:42:14
60CV-15-2921
C06D05 : 2 Pages

EXHIBIT