Link to Mo. Sup. Ct. Opinion
The Supreme Court of Missouri held that execution protocols propounded by the Missouri Department of Corrections (“DOC”) are exempted from the Missouri Administrative Procedure Act (“MAPA”) requirements of notice and public comment prior to adoption of a rule. The Court held that because DOC protocol decisions are not a product of rulemaking, notice and public comment are not required.
I. Facts & Holding[2]
In July 2006, the DOC issued an execution protocol to be used in capital punishment.[3] The protocol set forth the steps necessary for preparation, injection, and monitoring of lethal injections pursuant to Mo. Rev. Stat. § 546.720.[4] This section states that “the punishment of death shall be by the administration of lethal gas or by means of the administration of lethal injection” and authorizes the DOC director to provide the necessary facilities, appliances, and execution team for its administration.[5]
The protocol propounded by the DOC in July 2006, entitled “Preparation and Injection of Chemicals,” instructs the execution team in the proper procedure for preparing syringes and the proper quantities of injection chemicals.[6] The protocol also provides that DOC employees are to administer the chemicals used in lethal injection procedures with supervision from an outside medical professional, who monitors the prisoner’s condition, pronounces death, and oversees the disposal and documenting of the chemicals used.[7] When this protocol was adopted by the DOC in July 2006, seventeen inmates who had been sentenced to death challenged the adoption of the new protocol.[8]
These inmates alleged that the adoption of the new protocol violated the "MAPA,[9] in that the DOC did not undertake notice and public comment rulemaking when formulating the new protocol.[10] This failure, the inmates contended, rendered the new protocol void.[11] The circuit court dismissed the action after it found that the protocol was not a “rule” governed by the MAPA.[12]
II. Legal Background
The case presented a question of statutory construction. Therefore, the Supreme Court of Missouri reviewed under a de novo standard.[13] The Court had to determine if the General Assembly intended execution protocol to be exempt from the normal notice and comment rulemaking procedures applicable to administrative rules.[14] The MAPA defines a “rule” as a “statement of general applicability that implements, interprets, or prescribes law or policy.”[15] The Supreme Court of Missouri found two different rationales for exemption of the execution protocols.
A. Specific Statutory Exemption
Subsection 536.010(6)(k) specifically exempts “[a] statement concerning only inmates of an institution under the control of the department of corrections ... when issued by such an agency.”[16] Citing precedent from the Supreme Court of Tennessee interpreting similar statutory language, the Court noted that this exemption is especially appropriate because the “promulgation requirements of public notice, public hearing, attorney general approval, and filing with the state are simply not realistic requirements for implementing procedures that concern the intricacies and complexities of a prison environment.”[17]
B. Legislative Intent
Although the Court found that Mo. Rev. Stat. § 536.021 clearly applied, exempting the protocol from the procedural requirements normally attendant to administrative “rules,” the Court also found that the relevant statutory provisions setting forth the new DOC procedures indicated a specific intent to exempt the protocol from the procedural requirements.[18] As part of the protocol for administering executions, the General Assembly made a statement regarding the public’s access to the protocol.[19] Mo. Rev. Stat. § 546.720.2 emphasizes that “[t]he section of an execution protocol that directly relates to the administration of lethal gas or lethal chemicals is an open record, the remainder of any execution protocol of the department of corrections is a closed record.”[20]
The Court reasoned that this language reflected an intent to separate the execution process into “open” areas that were subject to the normal notice and comment rulemaking procedures and “closed” areas that are not.[21] There would be no need for such a declaration if the entire execution protocol were intended to be subject to the rulemaking procedures.[22] “To the extent the statute provides that part of the protocol is a closed record, it is rendered meaningless if the closed portion must be promulgated publicly as a rule.”[23] Read most naturally, the Court noted that this language reflected the General Assembly’s intent to exempt the execution protocols of the DOC from rulemaking procedures.[24]
III. Commentary
This lawsuit was brought either by inmates attempting to avoid execution or representatives of condemned inmates. The challenge to MAPA requirements was struck down by the Supreme Court of Missouri with relative ease due to the specific exemption relating to DOC protocols. As the Court noted in its reference to the Supreme Court of Tennessee, it makes sense that prison procedures are not subject to the same types of administrative procedure requirements as those dealing with subjects of a more normative ilk. This decision allows DOC protocol for executions to stay under the umbrella of the legislative exemptions of DOC procedures from public notice and comment. Missouri has the death penalty and, absent a reversal in this policy, the result of this Court’s decision is that the DOC may continue to promulgate execution protocols without submitting its procedures to the public scrutiny typically required of administrative rules.
- Robert J. Morrison
[1] SC 89571, 2009 WL 454279 (Mo. 2009).
[2] Id. at *1.
[3] Id.
[4] Id. See also Mo. Rev. Stat. § 546.720 (2002).
[5] Mo. Rev. Stat. § 546.720.1.
[6] 2009 WL 454279, at *1.
[7] Id.
[8] Id.
[9] Mo. Rev. Stat. § 536.021.
[10] 2009 WL 454279, at *1.
[11] Id.
[12] Id.
[13] Finnegan v. Old Republic Title Co. of St. Louis, Inc., 246 S.W.3d 928, 930 (Mo. 2008).
[14] 2009 WL 454279, at *1.
[15] Mo. Rev. Stat. § 536.010(6).
[16] Id. (emphasis added). Subsection (k) is referenced above but is only one of thirteen subsections that lay out the topics that are exempted from normal notice and comment rulemaking procedures. Id.
[17] Abdur’ Rhaman v. Bredesen, 181 S.W.3d 292, 312 (Tenn. 2005).
[18] 2009 WL 454279, at *3.
[19] Id.
[20] Mo. Rev. Stat. § 546.720.2 (2002).
[21] 2009 WL 454279, at *3.
[22] Id.
[23] Id.
[24] Id. The Court made special note of its duty to enforce the intent of the Legislature where such intent is clear. Id. In this case, the Court found that the Legislature’s intent was clear and should, therefore, be enforced. Id.
