IN THE SUPERIOR COURT OF FULTON COUNTY

STATE OF GEORGIA
WARREN LEE HILL,
Plaintiff,
v.
BRIAN OWENS, Commissioner
Georgia Dep't of Corrections,
BRUCE CHATMAN, Warden
Georgia Diagnostic and
Classification Prison,
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SAMUEL OLENS, Attorney General *
State of Georgia
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Defendants.
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CIVIL ACTION FILE
NO.
DEFENDANTS' SPECIAL APPEARANCE MOTION TO DISMISS
Plaintiff Warren Lee Hill ("Hill") was convicted of the murder of his
girlfriend and subsequently the murder of a fellow inmate. He was sentenced to
1
According to O.C.G.A. 9-4-7(c), if a Georgia statute is alleged to be
unconstitutional, the Attorney General shall be served with a copy of the
proceeding and shall be entitled to be heard. Plaintiff has confused this with a
requirement to name Samuel Olens, Attorney General of the State of Georgia, as a
defendant in this action. Accordingly, the Attorney General respectfully requests
that this Court dismiss him as a party to the present proceeding. See Pangle v.
Gossett, 261 Ga. 307 (1991) (subsection (c) ofO.C.G.A. 9-4-7 does not make the
Attorney General a party to the proceeding).
death for the second murder. Hill's conviction and death sentence have been
upheld on appeal at all state and federal levels of review.
By court order, Hill is set to be executed by lethal injection on Monday, July
15,2013. At five o'clock in the afternoon on Friday, July 12, 2013, Hill filed an
emergency motion for equitable injunction along with nearly 500 pages of exhibits
consisting mostly of newspaper articles and exhibits recycled from previous
execution proceedings. He seeks an injunction from this Court to allow him time
to pursue a declaratory judgment on the constitutionality of O.C.G.A. 42-5-36( d)
and to investigate whether Georgia's use of pentobarbital in his third scheduled
execution will violate his state and federal Constitutional rights. Hill concedes
that if the correct dosage of Pentobarbital is properly administered and the
drug is of adequate quality, his death will be humane. (See Brief in Support of
Plaintiffs Emergency Motion for Equitable Injunction ("Hill Brief') at 3-4).
Defendants have attached to this motion a certificate from an independent
laboratory that confirm both the quality of the pentobarbital to be properly
administered to him pursuant to Georgia's lethal injection protocol. (Attachment
A). Accordingly, Hill's worries are unfounded. Furthermore, he has no chance of
succeeding on the merits of his claims, much less establishing the likelihood of
success required in order for this Court to grant him injunctive relief, and his
motion should be denied.
2
I. INTRODUCTION
Contrary to Hill's repeated references to the "Lethal Injection Secrecy Act,"
throughout his motion, there is no such statute in Georgia, and none that warrants
that appellation. Instead, on May 7, 2013, Governor Nathan Deal approved House
Bill122, which entered into force on July 1, 2013. The bill amended O.C.G.A.
42-5-36 to provide for confidentiality of certain identifying infonnation contained
in the records of the Department of Corrections relating to the execution of a death
sentence. The relevant portion of the statute now reads:
Confidentiality of information supplied by inmates; penalties for breach;
classified nature of department investigation reports; confidentiality of
certain identifying information; custodians of records
(d) (1) As used in this subsection, the term "identifying information"
means any records or infonnation that reveals a name, residential or
business address, residential or business telephone number, day and
month of birth, social security number, or professional qualifications.
(2) The identifying information of any person or entity who
participates in or administers the execution of a death sentence and the
identifying information of any person or entity that manufactures,
supplies, compounds, or prescribes the drugs, medical supplies, or
medical equipment utilized in the execution of a death sentence shall
be confidential and shall not be subject to disclosure under Article 4
of Chapter 18 of Title 50 or under judicial process. Such information
shall be classified as a confidential state secret.
3
O.C.G.A. 42-5-36. This statute does not cloak executions by lethal injection in
secrecy nor does it prevent Hill from obtaining crucial information for pursing a
challenge to the State's execution protocols under the Eighth Amendment. Instead,
as is demonstrated below, it properly balances the right of innocent individuals to
privacy and to be free from harassment against a death row inmate's right to
pursue last-minute challenges to the manner in which his execution is to be carried
out. The statute is not unconstitutional on its face or as applied to Hill, and he has
not demonstrated to the contrary. Therefore, his motion for an injunction and stay
ofhis execution should be denied.
Hill argues that O.C.G.A. 42-5-36, as amended, is unconstitutional in that
it: 1) denies him his right to due process by denying him meaningful access to the
courts; 2) precludes judicial review of the Department of Corrections' lethal
injection procedure; 3) is overbroad in its classification of state secrets and
provides no mechanism for declassification; 4) violates the Supremacy Clause of
the United States Constitution by blocking his ability to vindicate his Eighth
Amendment right to be free from cruel and unusual punishment; and 5) prevents
him from obtaining the information he needs to challenge the constitutionality of
his execution. Hill's challenge to the statute focuses on his imagined right to
obtain information about the origins and the manufacture of the Pentobarbital with
which he will be executed. He also asks for access to state and federal courts to
4
enforce his due process and Eighth Amendment rights, and requests this Court
grant him injunctive relief and a writ of mandamus. This Court should deny relief
because: 1) O.C.G.A. 42-5-36( d) is constitutional; 2) Georgia's lethal injection
procedure does not violate State or Federal law; and, 3) Hill has not shown that he
is entitled to injunctive relief.
II. BACKGROUND
Direct review of Hill's conviction and sentence was completed
2
when
Georgia's statutory method of execution was electrocution. S e e ~ ' O.C.G.A. 17-
10-38(a) (1995). Lethal injection became the method of execution applicable to
Hill on October 5, 2001, when the Georgia Supreme Court declared death by
electrocution to be unconstitutional. Dawson v. State, 274 Ga. 327, 328-331
(2001). As a result, Hill's challenge to the dispensation of drugs under Georgia' s
lethal injection statute accrued on October 5, 2001 when lethal injection as a means
of execution became applicable to him.
Although there have been revisions to the lethal injection protocol
throughout the years, there have been no substantial changes which would change
the accrual date of Hill's claims. On May 13, 2011, Georgia revised its lethal
injection protocol, substituting pentobarbital for sodium pentothal in its three-drug
2
Direct review of Hill's convictions and sentences was completed on November 1,
1993, when the United States Supreme Court denied certiorari from his direct
appeal. Hill v. Georgia, 510 U.S. 950 (1993).
5
cocktail. As found by the Eleventh Circuit Court of Appeals in relation to
Alabama's protocol, Georgia's substitution of the anesthetic pentobarbital for
sodium pentothaV did not constitute a significant alteration in the lethal injection
protocol. See DeYoung v. Owens, 646 F.3d 1319 (11th Cir. 2011); Powell v.
Thomas, 643 F.3d 1300 (11th Cir. 2011); Valle v. Singer, 655 F.3d 1223, 1226
(11th Cir. 2011).
Then, on July 18, 2012, Georgia revised the protocol to eliminate the second
and third drugs, using pentobarbital as part of a single drug protocol. Georgia's
change to its lethal injection protocol mirrors those in ten other states which use a
single-drug protocol, most using pentobarbital as a single drug. (Attachment B).
Georgia's revision to its drug protocol was upheld by the Georgia Supreme Court
in Hill v. Owens, 292 Ga. 380 (2013).
Hill has not raised this specific challenge to Georgia's lethal injection
procedure until now. He did not challenge Georgia's lethal injection procedure
during any of his state or federal criminal or habeas proceedings, and he has not
filed an action pursuant to 42 U.S.C. 1983. However, on July 18, 2012, the day
of his first scheduled execution, Hill filed a stay of execution and an application for
a discretionary appeal, challenging the Georgia lethal injection protocol, claiming
that the Georgia Department of Corrections changed its lethal injection procedure
3
The terms sodium pentothal and sodium thiopental are synonymous.
6
from a three-drug to a single drug protocol in violation of Georgia's
Administrative Procedure Act. The Georgia Supreme Court granted Hill a stay of
execution and a discretionary appeal on the AP A issue. Hill filed his appeal on
July 25, 2012, and on February 4, 2013, the Georgia Supreme Court upheld the
change of Georgia's lethal injection protocol, holding that the Administrative
Procedure Act did not apply to the Board's decisions regarding lethal injection
procedures. Hill v. Owens, 292 Ga. 380 (2013). Hill now files his newest
challenge to Georgia's lethal injection procedure just three days prior to his
THIRD scheduled execution. Hill's motion is clearly another attempt to delay the
State from carrying out his lawfully ordered execution.
II. ARGUMENT AND CITATION TO AUTHORITY
A. Hill Has Not Met His Burden Of Establishing That An Injunction
Should Issue In This Case.
Under Georgia law, injunctive relief is only available as an action in equity
to restrain certain acts for which no adequate remedy is provided by law.
O.C.G.A. 9-5-1. "Equity will take no part, [however], in the administration of
the criminal law. It will neither aid criminal courts in the exercise of their
jurisdiction, nor will it restrain or obstruct them." O.C.G.A. 9-5-2. Hill seeks to
7
block the carrying out of orders entered by superior court judges in criminal cases.
4
To enjoin the carrying out of superior court orders and sentences in criminal cases
most certainly restrains or obstructs criminal courts in the exercise of their
jurisdiction. Furthermore, Hill cannot meet the mandates required to obtain an
injunction. Thus, this Court should deny Hill's motion for injunction.
"[A] preliminary injunction ... is an extraordinary and drastic remedy, one
that should not be granted unless the movant, by a clear showing, carries the
burden of persuasion." Mazurek v. Armstrong, 520 U.S. 968, 972 (1997); accord
Siegel v. Lepore, 234 F.3d 1163, 1176 (11th Cir. 2000) (en bane); see also Munaf
v. Green, 552 U.S. 674, 690 (2008); Drawdy CPA Servi e , North GA CPA
Services, 320 Ga. App. 759 (2013) (injunction should not be granted "except in
clear and urgent cases where there is a vital necessity to prevent a party from being
damaged and left without a remedy"); Thomas v. Mayor of Savannah, 209 Ga.
866, 867 (1953) ("Injunction is an extraordinary process and the most important
one which courts of equity issue; being so, it should never be granted except where
there is grave danger of impending injury ... ). "A mere threat or bare fear of such
injury is not sufficient." Thomas, 209 Ga. at 867.
4
On July 3, 2013, an order was entered by Judge George M. Peagler in criminal
case No. 91-R-14 in the Superior Court ofLee County, Georgia. That order directs
the Defendants in this case to carry out the execution of Warren Lee Hill, Jr.
8
Equitable remedies, like injunctions, are only available to restrain improper
acts for which not adequate remedy is provided at law. See O.C.G.A. 9-5-1. The
purpose of an injunction is to preserve the status quo and balance the conveniences
of the parties pending final adjudication of the issues. Byelick v. Michel Herbelin
USA, Inc., 275 Ga. 505 (2002); Cate v. Oldham, 707 F.2d 1176, 1185 (11th Cir.
1983 ). Injunctive relief is appropriate when "( 1) there is substantial threat that the
moving party will suffer irreparable injury if the injunction is not granted; (2) the
threatened injury to the moving party outweighs the threatened harm that the
injunction may do to the party being enjoined; (3) there is a substantial likelihood
that the moving party will prevail on the merits of her claims at trial; and (4)
granting the interlocutory injunction will not disserve the public interest." SRB
Investment Services v. Branch Banking and Trust Co., 289 Ga. 1, 5 (2011)
(citation omitted); accord Holton v. Physician Oncology Services, 742 S.E.2d 702
(Ga. 2013); see also Siegel, 234 F.3d at 1176. The burden of persuasion in each of
the four requirements is at all times upon the plaintiff. Siegel, 234 F .3d at 1176;
United States v. Jefferson Co., 720 F.2d 1511, 1519 (11th Cir. 1983). Hill has not
met his burden of persuasion on the four requirements. Hill has not demonstrated
that he will suffer irreparable injury if the injunction is not granted; that the
threatened injury outweighs the threatened hann that the injunction will do to the
State; or that the injunction will not disserve the public interest. But most
9
importantly, he has not demonstrated that he is likely to prevail on the merits of
this claim that O.C.G.A. 42-5-36(d) is unconstitutional.
B. Hill Has Not Demonstrated That He Will Suffer Irreparable Injury
Without The Injunction.
Hill argues, without any evidence or proof, that he will suffer irreparable
harm in that he will be executed in an unconstitutional manner if the injunction
does not issue. (See Hill Brief at 9). His argument is based on mere speculation
and is insufficient to support the issuance of an injunction.
"Allegations based on mere apprehension of injury and general conclusions,
without alleging facts to show irreparable injury, are insufficient to authorize the
grant of injunctive relief." Insurance Ctr., Inc., v. Hamilton, 218 Ga. 597, 600
(1963). The asserted irreparable injury must be neither remote nor speculative as
is the case here, but instead must be actual and imminent. See also O'Shea v.
Littleton, 414 U.S. 488 (1974) (explaining that "[t]he injury or threat of injury
must be real and immediate, not conjectural or hypothetical"); see also Church v.
ity ofHuntsville, 30 F.3d 1332, 1337 (11th Cir. 1994) (providing that a party has
standing to seek injunctive relief only if the party alleges, and ultimately proves, a
real and immediate- as opposed to a merely conjectural or hypothetical- threat of
future injury). The Eleventh Circuit has "emphasized on many occasions that the
asserted irreparable injury must be neither remote or speculative, but actual and
imminent." Siegel, 234 F.3d at 1176-1177 (quotations and citations omitted).
10
The Supreme Court has addressed what constitutes irreparable harm in the
lethal injection execution context, holding that "speculation cannot substitute for
evidence that the use of the drug is 'sure or very likely to cause serious illness and
needless suffering."' Brewer v. Landrigan, 131 S. Ct. 445 (2010), citing Baze v.
Rees, 553 U.S. 35, 49-50 (2008). Although "subjecting individuals to a risk of
future harm -not simply actually inflicting pain - can qualify as cruel and unusual
punishment, ... [t]o establish that such exposure violates the Eighth Amendment,
... the conditions presenting the risk must be 'sure or very likely to cause serious
illness and needless suffering,' and give rise to 'sufficiently imminent dangers.'"
Baze, 553 U.S. at 49-50, citing Helling v. McKinney, 509 U.S. 25, 33 (1993).
"[T]o prevail on such a claim there must be a 'substantial risk of serious harm,' an
'objectively intolerable risk of harm' that prevents prison officials from pleading
that they were 'subjectively blameless for purposes of the Eighth Amendment."'
Baze, 553 U.S. at 50, citing Fanner v. Brennan, 511 U.S. 825, 842, 846, and n.9
(1994); accord Mann v. Palmer, 713 F.3d 1306, 1314 (11th Cir. 2013); DeYoung,
646 F.3d at 1325.
5
5
Although the issue in DeYoung was whether a stay of execution should be
granted rather than whether an injunction should issue, the requirements for a stay
of execution and an injunction are the same, including the requirement that a
movant establish irreparable injury if the injunction/stay does not issue. See
DeYoung, 646 F.3d at 1324.
11
Hill argues that if this Court does not issue an injunction to give him time to
challenge the constitutionality O.C.G.A. 42-5-36( d), his irreparable injury will be
that he is unconstitutionally executed. (Hill Brief at 9). But to prove he will be
unconstitutionally executed, Hill must establish that it is "sure or very likely" that
he will experience needless suffering when he is executed. He has not done so.
He has presented nothing but speculation about what could happen and what is
possible, not even probable. He has not presented this Court with any evidence or
authority whatsoever to support a claim that execution by lethally injecting a single
dose of pentobarbital will cause needless suffering. In fact, he admits in his brief
that if the correct dosage of pentobarbital is properly administered and the drug is
of adequate quality, his death will be humane. (Hill Brief at 3-4). Disclosure of
the names, addresses, phone numbers, and qualifications of the compounding
pharmacy, supply chain, and manufacturers will not further any claim about
whether the pentobarbital is properly administered or is of adequate quality, and
Hill has not demonstrated how such information will aid him in establishing the
sureness or likelihood of harm.
Furthermore, the State is contemporaneously with this response providing a
certificate from an independent lab affirming the quality of the pentobarbital that it
will be using in Hill's execution. This should allay Hill's concerns whether the
drug to be used in his execution is pentobarbital and that it is unadulterated. Hill
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has wholly failed to demonstrate the likelihood of irreparable injury from the non-
disclosure of the identifying information. He has merely presented speculation that
access to the identifying information of the compounding pharmacy and the
supplier or manufacturer will aid him in proving an Eighth Amendment claim.
Speculation is an insufficient basis on which to issue an injunction.
C. The Harm Of An Injunction To The State Outweighs Any Speculative
Injury To Hill.
Contrary to Hill's contention at page 9 ofhis brief, the State will suffer
significant hann by Hill's last-minute request for an injunction and a stay of
execution. His continuation in custody is harmful to the State in that it undermines
and thwarts the State's interest in seeing its judgments enforced. "Both the State
and the victims of crime have an important interest in the timely enforcement of a
sentence." Hill v. McDonough, 547 U.S. 573, 584 (2006). On August 17, 1990,
Hill, already serving a life sentence for the murder of his girlfriend, murdered a
fellow prison inmate. He was subsequently convicted and sentenced to death on
August 2, 1991. For almost 22 years, the State has endeavored to enforce Hill's
sentence of death. Although it is too late to see that the judgment is timely
enforced, the granting of an injunction at this late stage, especially without any
showing by Hill that he will suffer irreparable injury if an injunction and stay are
not granted, will further deprive the State of its significant interest in seeing that
justice is served.
13
Neither a stay of execution or an injunction is "available as a matter of right,
and equity must be sensitive to the State's strong interest in enforcing its criminal
judgments without undue interference .... " Hill, 547 U.S. at 584. "The Supreme
Court has explained that, 'given the State's significant interest in enforcing its
criminal judgments, there is a strong equitable presumption against the grant of a
stay where a claim could have been brought at such a time as to allow
consideration of the merits without requiring entry of a stay."' Crowe, 528 F.3d at
1293, quoting Nelson v. Campbell, 541 U.S. 637, 650 (2004) (citations omitted).
Given this significant interest, dilatory motions for stays brought on the eve of an
execution, like the one here, should be denied. Crowe, 528 F.3d at 1293.
The Georgia Department of Corrections is charged with the duty to carry out
all executions for the State of Georgia. See O.C.G.A. 17-10-40. Thus, great
deference should be afforded to the Department in its management of its statutory
responsibilities- particularly in light of the fact that both state and federal courts in
Georgia have considered, reviewed, and scrutinized the Department's method of
execution and found it to be constitutional.
On a motion for an injunction, a plaintiff bears the burden of showing that
his perceived injuries outweigh the damage that the injunction might cause to
defendants. Cate, 707 F.2d at 1185. Hill has not even alleged actual harm, let
14
alone provided evidence of the same, weighing heavily against the grant of his
motion.
D. Granting The Injunction Will Disserve The Public Interest.
Granting Hill's motion would be a disservice to the public interest in that it
would encourage the use of dilatory tactics to avoid the execution of a lawfully
imposed sentence that has received years of review by numerous courts and has
been affirmed by those courts as being constitutionally imposed. In contrast, the
State's ability to perfonn its statutory mandate of an execution based on the verdict
of the people of the State undeniably serves the public interest. The people of the
State of Georgia lawfully determined Plaintiffs guilt and punishment. Granting
Hill's motion would only work to subvert this lawful determination.
The case of Jones v. Allen provides guidance on this Court's proper
consideration of the timing of this action. 485 F. 3d 635 (11th Cir. 2007). There,
an inmate facing an execution order filed a civil action challenging the three drug
protocol used for execution in Alabama. The court noted that lethal injection had
been the method of execution in Alabama since 2002 and that Jones waited until
2006 to file his action. The court concluded that Jones "leaves little doubt that the
real purpose behind his claim is to seek a delay in his execution, not merely to
effect an alteration of the manner in which it is carried out." Id., citing Harris v.
Johnson, 376 F.3d 414,418 (5th Cir. 2004). The court went on to note that "if this
15
court were to grant the motion to stay to allow Jones to proceed on his challenge,
the implementation of the State's judgment would be delayed many months, if not
years. Jones, in essence, would receive a reprieve from his judgment." This, the
court concluded, is a commutation of the death sentence. The court declined to
interfere with the State's strong interest in enforcing its judgment.
Similarly, this Court should not permit Hill to invoke the equity to further
delay his sentence on the mere speculation that information not available to him
might help him establish his execution with pentobarbital would be
unconstitutional. He has had ample opportunity to challenge his sentence.
E. Hill Has Not Demonstrated Likelihood Of Success On The Merits.
In addition to establishing the previous three requirements for an injunction,
Hill must also establish that he is likely to prevail on his claim that O.C.G.A. 42-
5-36(d) is unconstitutional. Hill argues that O.C.G.A. 42-5-36, as amended, is
unconstitutional in five ways: 1) it denies him his right to due process by denying
him meaningful access to the courts; 2) it violates the Georgia constitution because
it precludes judicial review of the Department of Corrections' lethal injection
procedure; 3) it is constitutionally overbroad in its classification of state secrets
and provides no mechanism for declassification; 4) it violates the Supremacy
Clause of the United States Constitution by blocking his ability to vindicate his
Eighth Amendment right to be free from cruel and unusual punishment; and, 5) it
16
causes him uncertainty, unnecessary suffering and mental anguish in violation of
the Eighth Amendment. Hill has not established that he is likely to prevail on any
of these arguments.
1. O.C.G.A. 42-5-36 only denies Hill identifying information, not
meaningful access to the courts.
Hill first argues that O.C.G.A. 42-5-36(d) is unconstitutional in that it
denies him his constitutional rights under both the United States Constitution and
the Georgia Constitution to access to the courts. Specifically, he argues that the
statute erects "a virtually insurmountable barrier to the filing and prosecution of a
colorable Eighth Amendment claim," and that the information protected under the
stature regarding the source of the pentobarbital is "critical to an assessment of the
likelihood that [his] execution will be botched and/or that it will inflict unnecessary
... pain." (See Hill Verified Complaint (the "Hill Complaint") at 16). He further
alleges that the identifying information protected by the statute "is indispensably
relevant" to an understanding as to whether his execution will be performed in a
constitutional manner and without it he has "no means to determine the purity" of
the pentobarbital or to determine whether it has been contaminated. (Hill
Complaint at 17). Finally, he argues without the information, he had no means to
assess the qualifications of the compounding pharmacy and its agents, the quality
assurance whether the facility is equipped to make sterile products, or to determine
if the drug to be used is, in fact, pentobarbital. (Hill Complaint at 18). But these
17
assertions are unpersuasive because O.C.G.A. 42-5-36(d) does not bar Hill's
access to the courts in any way. It also does not prevent Hill from challenging the
one-drug protocol, or from obtaining information on the drug's purity and its
sterility. The remaining information he seeks in order to challenge the use of the
drug - the qualifications of the pharmacy and its agents, quality assurance, and
whether the facility is equipped to make sterile products
6
- are irrelevant if the
drug is in fact pentobarbital, it is pure, and it is unadulterated. The State is
providing Hill with certifications attesting to these facts, so he has the information
he needs to seek review and challenge the drug to be used despite his arguments.
"It is now established beyond a doubt that prisoners have a constitutional
right to access to the courts under the Due Process Clause." Cunningham v.
District Attorney's Office for Escambia County, 592 F.3d 1237, 1271 (11th Cir.
2010), citing Bounds v. Smith, 430 U.S. 817, 821 (1977) (internal quotation marks
omitted). "Access to the courts is clearly a constitutional right, grounded in the
First Amendment, the Article IV Privileges and Immunities Clause, the Fifth
Amendment, and/or the Fourteenth Amendment." Chappell v. Rich, 340 F.3d
1279, 1282 (11th Cir. 2003). "The fundamental constitutional right of access to
the courts requires prison authorities to assist inmates in the preparation and filing
of meaningful legal papers by providing prisoners with adequate law libraries or
6
These are entirely irrelevant to an analysis of whether Hill is entitled to an
injunction.
18
adequate assistance from persons trained in the law." Bounds, 430 U.S. at 828
(1977). Access to the courts "must be 'adequate, effective, and meaningful."
Cunningham, 592 F.3d at 1271, citing Bounds, 430 U.S. at 822.
Although a prisoner has a constitutional right to access to the courts, in order
to establish a violation of that right, "a prisoner must show an actual injury."
Cunningham, 592 F.3d at 1271, citing Lewis v. Casey, 518 U.S. 343, 349 (1996).
"The injury requirement reflects the fact that 'the very point of recognizing any
access claim is to provide some effective vindication for a separate and distinct
right to seek judicial relief for some wrong." Cunningham, 592 F.3d at 1271,
citing Christopher v. Harbury, 536 U.S. 403, 414-415 (2002). "The injury
requirement means that the plaintiff must have an underlying cause of action the
vindication of which is prevented by the denial of access to the courts." I d.
Hill is not being denied access to the courts as a result of Georgia's statute
respecting the privacy of individuals involved in the lethal injection process. He
may challenge the method of his execution under the Eighth Amendment in both
state and federal courts, and he has been able to do so as to the one-drug protocol
for approximately one year, but he has chosen not to pursue those avenues of
relief. The statute at issue simply does not deny him meaningful access to the
courts; it only deprives him of some limited identifying information that he alleges
-but does not convincingly establish - is necessary to prove a cruel and unusual
19
punishment Eighth Amendment claim. There is no right to access of the private
identifying information that Hill seeks, only a right of access to the courts. Hill has
access to state and federal courts to challenge his method of execution and
O.C.G.A. 42-5-36(d) in no way infringes on that right. It certainly does not erect
a barrier to the filing and litigation of an Eighth Amendment claim in state or
federal court.
Hill asserts that the information he seeks under the statute, but is being
denied, is relevant and critical to an Eighth Amendment challenge by him, and that
because it is relevant and critical, he is entitled to it or he will be denied access to
the courts. That argument is not supported by any of the case law on access to the
courts. The right to access to the courts does not include the right to receive
discovery of information in the State's possession, (see Cunningham, 592 F.3d at
1266-1271 ), and Hill's reliance on case law on the State's discovery obligations in
criminal cases is inapposite to the issue he raises. Neither this case nor any case
Hill might now bring in state or federal court would be a criminal case in which he
has the fundamental constitutional rights guaranteed by the Fifth and Sixth
Amendments to confront the evidence against him or present a defense. Instead,
the cases would be civil in nature where discovery is governed by rules of
procedure developed by Congress, the Georgia General Assembly, and the courts.
Any reliance by Hill on the rights of a criminal defendant to evidence the
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Government intends to use against him at a trial are simply not controlling or
relevant to the issue raised here and this Court should not be guided by those
Constitutional principles governing only the prosecution of criminal trials.
Finally, Hill also relies on the right of access to the courts as provided in the
Georgia Constitution. (Hill Complaint at 14-15). But Georgia's right of access to
the courts is limited. First, "[t]here is no express constitutional right of access to
the courts under the Georgia Constitution." Couch v. Parker, 280 Ga. 580, 366
(2006), citing Nelms v. Georgian Manor Condo. Assn., 253 Ga. 410, 413 (1984).
And second, the Georgia Supreme Court has held that Art. I, Sec. I, Par. XII "was
never intended to provide a right of access to the courts," Smith v. Baptiste, 287
Ga. 23, 24 (201 0), but merely "is a right of choice (between self-representation and
representation by counsel) provision, and not an access to the courts provision,"
Couch, 280 Ga. at 366 (internal quotation marks omitted) (citing Santana v. Ga.
Power Co., 269 Ga. 127, 129 (1998)). Art. I, Sec. I, Par. XII was never intended to
provide a right of access to the courts, but was intended to provide only a right of
choice between self-representation and representation by counsel. Hill is not
seeking to challenge his right to represent himself; therefore, his right to access to
the courts as contained in the Georgia Constitution is not implicated.
Further, to the extent that Hill's argument relies on his right to due process
under the Georgia Constitution as establishing his right to access to the courts,
21
Georgia has long recognized that "[t]he right to be heard in matters affecting one's
life, liberty, or property is one of the essential elements of due process of law ..... "
Couch, 269 Ga. at 366 (citing Southern R. Co. v. Town of Temple, 209 Ga. 722,
724 (1953)). However, the Georgia Supreme Court has noted that the right to be
heard is not absolutely unrestricted and that the "'power of the legislature to create,
modify or abolish rights to sue has been clearly and repeatedly recognized both by
the U.S. Supreme Court and by this court .... The enactment of a statute
delineating or, indeed, even abolishing a cause of action before it has accrued,
deprives the plaintiff of no vested right."' Couch, 269 Ga. at 366 (citing Love v.
Whirlpool Corp., 264 Ga. 701, 705 (1994)). "Thus, due process recognizes a
citizen's unfettered right to defend his or her life, liberty, or property [only] in
accordance with those limitations constitutionally established by the General
Assembly. Couch, 269 Ga. at 366. Just as the Georgia Assembly could enact a
statute limiting Hill's right to sue, it could also enact a statute limiting his access to
information in the State's possession that affected his cause of action without
running afoul of Hill's right to due process and/or his right of access to the courts.
Because Hill has not demonstrated that O.G.C.A. 42-5-36 in any way
impedes his federal or state right of access to the courts, he has not demonstrated
that he is likely to prevail on his constitutional challenge to the statute. Therefore,
22
he has failed to demonstrate that an injunction and a stay of execution should issue
in this case.
2. O.C.G.A. 42-5-36 Does Not Preclude Judicial Review Of
Georgia's Lethal Injection Procedure.
Hill next argues that O.C.G.A. 42-5-36(d) is unconstitutional because it
violates Georgia's separation of powers doctrine in that in enacting the statute, the
General Assembly stripped the judiciary of its authority to review the issue of
whether Hill's execution will violate the Eighth Amendment prohibition on cruel
and unusual punishment. But as with his previous claim, Hill misrepresents how
the constitutional principles he invokes apply and he overstates the nature and
effect of the statute at issue. The Georgia General Assembly did not strip any
Georgia court of its authority under the Georgia constitution and did not thereby
violate the Georgia separation of powers principles embodied in the Georgia
Constitution. Instead, in enacting O.C.G.A. 42-5-36(d) it merely restricted
access to identifying information in order to protect the privacy interests of
individuals who voluntarily participate in a constitutional and lawful State
function. If by doing so, it incidentally prevents Hill from obtaining information
from a State agency that he deems relevant to proof of a constitutional claim, it has
not violated the Georgia Constitution. Instead, it has acted within its power to
enact legislation, which is its duty under that Constitution.
23
The Separation of Powers Clause in the Georgia Constitution provides that
"[t]he legislative, judicial, and executive powers shall forever remain separate and
distinct; and no person discharging the duties of one shall at the same time exercise
the functions of either of the others except as herein provided." Ga. Const., Art. I,
Sec. II, Par. III. Under this separation of powers, "[t]he legislative branch enacts
the law, the judiciary interprets those laws and the executive branch enforces those
laws until they are amended or held to be unconstitutional." Harbuck v. State, 280
Ga. 775 (2006); accord Adams v. Ga. Dep't ofCorr., 274 Ga. 461 (2001).
Pursuant to this Constitutional provision, all legislative power in Georgia is vested
in the General Assembly and all judicial power in the courts. See Thompson v.
Talmadge, 201 Ga. 867, 872 (1947). Because only the General Assembly can
enact, amend, modify, or repeal its own valid statutes, a court has no power
whatsoever "to modifY, amend, or repeal a valid constitutional statute enacted by
the General Assembly." Kemp v. Mitchell County Democratic Executive
Committee, 216 Ga. 276, 283 (1960).
Further, the Georgia constitution outlines the constitutional jurisdiction of
the superior courts in Georgia: "The superior courts shall have jurisdiction in all
cases, except as otherwise provided in this Constitution. They shall have exclusive
jurisdiction over trial in felony cases, except in the case of juvenile offenders as
provided by law, in cases respecting title to land, in divorce cases, and in equity
24
cases. The superior courts shall have such appellate jurisdiction, either alone or by
circuit or district, as may be provided by law." Ga. Const., Art. 6, Sec. 4, Par. I.
In his Complaint, Hill blurs separation of powers principles under the
Georgia Constitution and their perceived effects on his constitutional challenge.
He argues that the Georgia Assembly stepped out of its role and into the judiciary's
role, usurping the judiciary's power, in enacting legislation limiting access to
identifying information that the Georgia Assembly determined should be subject to
confidentiality. But that argument turns the separation of powers requirement on
its head. Under Georgia's Constitution, it is the Georgia Assembly that has the
right to enact legislation, including legislation that may impact judicial
proceedings. For example, the Georgia Assembly is free to enact legislation on the
method of execution to be used in Georgia, see Adams, 274 Ga. at 462, and on the
rules of evidence applicable in trials in courts in Georgia, Bell v. Austin, 278 Ga.
844, 846 (2005). Courts do not have unlimited power of judicial scrutiny of
information a defendant deems relevant to a cause of action, such as the identifying
information Hill would like access to. Instead, their scrutiny is limited to review of
the statute at issue for constitutionality or to interpret its meaning. The statute is
not, however, unconstitutional simply because it impacts court proceedings and
what evidence a plaintiff or defendant may use to prove a claim.
25
Additionally, the Georgia Supreme Court has never chastised the General
Assembly for alleged "power grabbing" for exercising its constitutional power to
enact legislation, even when that legislation limits what might be admissible in
court to prove a claim. (Hill Complaint at 21 ). And, contrary to Hill's implication
in his brief, there is no constitutional violation, or nothing wrong, with the Georgia
Assembly "unilaterally determining" that certain information regarding executions
in Georgia should not be disclosed, even pursuant to a court order. In fact, it is
wholly within the Assembly's constitutional power to enact legislation, unilaterally
or otherwise, that it deems in the best interest of its citizens, subject only to that
legislation not violating a constitutional right. Hill has not established that the
statute violates any constitutional right he possesses. He merely argues it will
make it harder for him to prove a violation of his Eighth Amendment rights. That
is insufficient to establish that O.C.G.A. 42-5-36( d) is unconstitutional.
Moreover, there is no issue of testimonial privileges created by the statute,
(see Hill Complaint at 21-22), and thus, the cases cited by Hill indicating that the
legislative branch may not interfere with the court's right to resolve issues of
privilege are irrelevant. The statute does not create any privilege on the part of the
Department of Corrections; instead, it prohibits disclosure of information subject to
misdemeanor penalties. The statute also does not create any conflict in the
statutory authority of the executive and the authority of the court to enforce the
26
Constitution. The Department of Corrections has been stripped by the statute of
any authority to reveal the identifying information, and the court is still at liberty to
determine whether the statute violates the Constitution in a proceeding properly
and timely brought before the court. Although the court may not order release of
the information under the statute as written, if it finds the statute itself is
unconstitutional, it may order whatever remedy it deems appropriate. But before
doing so, it must first find it violates the Constitution, and the arguments presented
by Hill do not support such a finding.
Finally, courts do not have "independent interpretive authority" over the
constitutionality of any statute or over aspects of the execution process. (Hill
Complaint at 22). What they do have is the authority to interpret statutes,
including O.C.G.A. 42-5-36(d), and to review the constitutionality of Georgia's
execution procedures only within the confines of a properly and timely filed cause
of action by one who has standing to bring the suit. Hill has not properly or timely
filed a cause of action challenging the statute or Georgia's execution procedures.
He has chosen once again to bypass the jurisdiction of courts available to hear his
claims and instead gambled that his voluminous last minute pleadings will
overwhelm the Court and force a stay. The equities existent in this case compel a
finding that an injunction should not issue because Hill is not likely to succeed on
his claims that the statute is unconstitutional. He certainly has not demonstrated
27
that in enacting the statute the Georgia Assembly violated the separation of powers
by intruding into the power of the courts to hear cases brought before them.
3. O.C.G.A. 42-5-36 Is Not Unconstitutionally Overbroad.
Hill next claims that O.C.G.A. 42-5-36 is unconstitutionally overbroad,
provides no mechanism for declassification, and violates the legislature's intent
when it enacted the Georgia Open Records Act.
"[I]n all interpretations of statutes, the courts shall look diligently for the
intention of the legislature and such intent shall be determined from a
consideration of the entire statute." Agnes Scott College v. Hartley, 741 S.E.2d
199, 203 (Ga. App. 2013). Article 4 of Chapter 18 ofTitle 50, O.C.G.A., contains
Georgia's Open Records Act, O.C.G.A. 50-18-70, et. seq. O.C.G.A. 50-18-
70(a) clearly expresses that the legislature's intent behind Georgia's Open Record
Act was to codify Georgia's strong public policy in favor of open government,
requiring narrow interpretation of all record exceptions in the Code to exclude
from public disclosure only those portions of records addressed by an exception.
Public records are defined by O.C.G.A. 50-18-70 to include all documents,
computer-based or generated information, data, or similar material prepared and
maintained or received by an agency or private person or entity in the performance
of a service or function for or on behalf of an agency. If the records are public, the
records may be protected from public disclosure by statute. Hardaway Co. v.
28
Rives, 262 Ga. 631, 632-33 (1992). If the records are not protected by statute, and
if there is a valid claim that the disclosure of the public records would invade
individual privacy then the records should be protected by court order. Id.
In Hardaway, the Georgia Department ofTransportation (the "DOT")
resisted disclosure of documents it claimed were protected under O.C.G.A. 24-9-
21 as a "secret of state." The DOT conceded that the documents were public and
their disclosure would not result in the invasion of an individual's privacy.
Hardaway, 262 Ga. at 633. The court found that a "secret of state" had not been
defined within the Georgia Code, and compared that phrase with the "confidential
state secret" language used in other statutes including O.C.G.A. 42-5-36, the
statute whose constitutionality Hill currently challenges. The court found that the
language of the statute relied upon by the DOT was more general and did not
specify the information exempted from disclosure as was done for "confidential
state secrets" protected under O.C.G.A. 42-5-36. Therefore, because no issues of
individual privacy were involved, the DOT was required to disclose the
documents. Significantly, the court noted that "this holding in no way forecloses
the General Assembly from amending [the Open Records Act] to exempt the
documents at issue [from disclosure]." Id. at 636 n.4 (emphasis added).
O.C.G.A. 42-5-36 is narrowly drafted to protect only the "identifying
information," a term defined in subpart ( d)(l) as meaning "any records or
29
information that reveals a name, residential or business address, residential or
business telephone number, day and month ofbirth, social security number, or
professional qualifications." O.C.G.A. 42-5-36(d)(l). Subpart (d)(2) identifies
the classes of people to whom this statute classifies as confidential: "any person or
entity who 'manufactures, supplies, compounds, or prescribes the drugs"' to be
used in a lethal injection execution. O.C.G.A. 42-5-36(d)(2). Interestingly, the
single-barbiturate protocol used by Georgia is identical to the alternative protocol
advocated by the inmates to the United States Supreme Court in Baze as a painless
and humane alternative to Kentucky's three-drug protocol. See Baze, 553 U.S. at
51. Ironically, as execution in the United States rapidly becomes more humane
and pharmacologically mirrors the procedures permitted in certain U.S. states and
European countries within the context of assisted suicide, opponents of capital
punishment tum more shrill and their tactics to thwart a state's democratically-
enacted legislation grows increasingly heavy-handed. As recently detailed in a
petition submitted to the Florida Supreme Court on behalf ofLundbeck, a Danish
company that for years supplied pentobarbital for use in executions in the United
States, being outed and mobbed by these partisans can be a death sentence in itself
to companies particularly located overseas:
Lundbeck has a direct financial interest in preventing a negative response
from international consumers based on aversion to Lunbeck' s involvement
in ... U.S. executions. That interest is compromised by Florida's use of
Lundbeck's product.
30
Lundbeck's stakeholders expect Lundbeck to meet certain ethical standards
and their involvement in the execution drug trade did a great deal of damage
to their reputation. Media reports criticizing the company proliferated in
Denmark, the U.S. and elsewhere in Europe, leading to consumer boycotts
ofLundbeck products and anti-Lundbeck campaigns online. Stock prices
fell and in May 2011, [the] Danish Pension Fund, Unipension, publicly
divested from the company[.]
Petition ofDr. David Nicholl at 9, 120-13, available at
http://www.floridasupremecourt.org/pub _info/summaries/briefs/11111-
1851/Filed_09-26-2011_Petition.pdf (last visited July 15, 2013).
In response to the growing shortage of drugs and companies who would
provide drugs for use in executions, the Georgia legislature could have rationally
concluded that these innocent parties face a unique risk of harm in light of
activists' current harassing tactics. The revelation of the identifying information of
a pharmacy or doctor involved in a lethal execution has and could prospectively
expose that person or entity to potential harassment, bullying, intimidation, and
harm, and crafted a legislative remedy which is no broader than required to protect
the interests of both parties and preserve the status quo. Cf. Hill v. Colo., 530 U.S.
703, 724-725 (U.S. 2000) (upholding legislative creation of eight-foot buffer zone
at abortion clinics motivated by harassing conduct of anti -abortionists); Frisby v.
Schultz, 487 U.S. 474 (1988) (upholding anti-picketing ordinance created in
response to anti-abortionists who wanted to protest in front of a doctor's house
31
because they viewed abortion as murder). As repeatedly noted, O.C.G.A. 42-5-
36 does not prevent Hill from obtaining the information he considers necessary to
investigate whether the execution scheduled for today will potentially violate his
Eighth Amendment rights; it simply prevents him and his sympathizers from
access to constitutionally-irrelevant information that has been repeatedly misused
to injure innocent parties who have assisted Georgia with carrying-out its lawful
sentences. Accordingly, this Court should deny him an injunction to pursue his
claim. See Bryan v. State, 753 So.2d 1244, 1250 (Fla. 2000) (upholding public
records disclosure exemption of statute exempting information which, if released,
would identify persons involved in prescribing, preparing, compounding, and
dispensing drugs for use in lethal injections); accord Henyard v. State, 992 So.2d
120, 130 (2008).
4. O.C.G.A. 42-5-36 Does not Violate the Supremacy Clause of
the United States Constitution.
Hill's fourth argument is that in enacting O.C.G.A. 42-5-36(d), the
Georgia legislature violated the Supremacy Clause and his Eighth and Fourteenth
Amendment rights as guaranteed by the Constitution. Specifically, he argues that
the Constitution is the supreme law of the land and that any right arising under the
Constitution cannot be nullified by any state or federal officials. He further argues
that O.C.G.A. 42-5-36(d) violates the Supremacy Clause in that it has the effect
of preventing him from establishing an Eighth Amendment violation in the
32
procedures to be used to execute him, thereby nullifying his rights under the Eighth
and Fourteenth Amendment. His argument is completely meritless.
The Constitution and law of the United States are the supreme law of the
land. Shelby County v. Holder, 2013 U.S. LEXIS 4917 (June 25, 2013). Because
of the existence of two sovereigns in this country, (the national and state
government), "the possibility that laws can be in conflict or at cross purposes"
exists and "[t]he Supremacy Clause provides a clear rule that federal law 'shall be
the supreme Law of the Land; and the Judges in every State shall be bound
thereby, anything in the Constitution or Laws of any State to the Contrary
notwithstanding."' Arizona v. United States, 132 S. Ct. 2492, 2500 (2012)
(internal quotation omitted). "Outside the strictures of the Supremacy clause,
States retain broad autonomy in structuring their governments and pursuing
legislative objectives. Indeed, the Constitution provides that all powers not
specifically granted to the Federal Government are reserved to the States or
citizens." Shelby County, 2013 U.S. LEXIS 4917 at *22.
Under the Supremacy Clause, "Congress has the power to preempt state
law." Arizona, 132 S. Ct. at 2500. And "[t]here is no doubt that Congress may
withdraw specified powers from the States by enacting a statute containing an
express preemption provision." Id. "State law must also give way to federal law"
33
when Congress determines that it should exclusively govern a field of conduct and
when state law is a conflict with federal law. I d. at 2501.
The intent of Congress to displace state law altogether "can be inferred from
a framework of regulation 'so pervasive ... that Congress left no room for the
States to supplant it' or where there is a 'federal interest ... so dominant that the
federal system will be assumed to preclude enforcement of state laws on the same
subject."' Id. (internal citations omitted). A state law conflicts with federal law
when compliance with both state and federal law is a physical impossibility and
when "the challenged states law 'stands as an obstacle to the accomplishment and
execution of the full purposes of objectives of Congress.'" I d. (internal citations
omitted).
The courts of Georgia have acknowledged the Supremacy Clause and the
doctrine of preemption, noting it applies "( 1) where there is a direct conflict
between state and federal regulation; (2) where state law stands as an obstacle to
the accomplishment and execution ofthe full purposes and objectives of Congress;
or (3) where Congress had occupied the field in a given area so as to oust all state
regulation." Hernandez v. State, 281 Ga. 559, 561 (2007) (internal citations and
punctuation omitted); accord Gomez-Ramos v. State, 297 Ga. App. 113, 116
(2009).
34
Finally, "[ w ]hile federal preemption of state statutes is, of course, ultimately
a question under the Supremacy Clause, ... analysis of preemption issues depends
primarily on statutory and not constitutional interpretation." City of Philadelphia
v. New Jersey, 430 U.S. 141, 141 (1977).
Hill argues that O.C.G.A. 42-5-36(d) is in conflict with federal law
because it allegedly nullifies his rights under the Eighth Amendment to be free
from cruel and unusual punishment, but it does not. The statute does nothing more
than prevent disclosure of the names, phone numbers, addresses, and qualifications
of individuals assisting the State in its duty to carry out a lawfully imposed
sentence. The statute does not prevent Hill from challenging the method of
execution or the manner in which that execution is carried out; it does not prevent
him from obtaining the names of the pharmacy, the supplier, and the manufacturer
the State is to use in his execution from other sources than from the public records
in the hands of the Department of Corrections; it does not prevent Hill from
presenting experts on the effects of pentobarbital, pure or adulterated, on the
individual into whom it is injected or on error rates in compounding pharmacies or
the risk of contamination. More importantly, it does not prevent him from
challenging the pentobarbital that the State has indicated it is going to use in his
execution and the findings of an independent laboratory on the purity and sterility
of that substance. Hill has wholly failed to present any reason why his Eighth
35
Amendment rights cannot be protected with the information and procedures
available to him. He simply wants more, and neither the Constitution nor federal
law entitles him to that something more -the identifying information the Georgia
Assembly has determined should be protected from disclosure.
Hill has not identified any federal law which conflicts either expressly or
impliedly with O.C.G.A. 42-5-36(d), and there is none. Moreover, Congress has
never expressed any intent to preempt state law in the death penalty or method of
execution areas of law, and it has left these areas of the law largely up to the states,
indicating repeatedly the important interests in comity. S e e , ~ , Gregg v.
Georgia, 428 U.S. 153, 186-87 (1976) ("Considerations of federalism, as well as
respect for the ability of a legislature to evaluate, in terms of its particular State, the
moral consensus concerning the death penalty and its social utility as a sanction,
require us to conclude, in the absence of more convincing evidence, that the
infliction of death as a punishment for murder is not without justification and thus
is not unconstitutional."). Hill has again failed to demonstrate that O.C.G.A. 42-
5-36(d) is unconstitutional. Because he has failed to do so, he has also failed to
show that he is entitled to an injunction to pursue this meritless claim.
36
5. Due Process Does Not Forbid Hill's Execution Simply Because
The State Is Complying With O.C.G.A. 42-5-36 And Not
Disclosing Personal Identifying Information Concerning The
Compounding Pharmacy And Its Suppliers And Manufacturer.
In his final argument, Hill alleges that due process forbids his execution
because the State's refusal to disclose the identifying information he seeks will
amount to a gross injustice and thereby violate his constitutional right to due
process. Hill has not, however demonstrated for this Court that his execution using
the single-drug pentobarbital will result in needless suffering and pain, and will be
unconstitutional. "Given what [the Supreme Court's] cases have said about the
nature of the risk of harm that is actionable under the Eighth Amendment, a
condemned prisoner cannot successfully challenge a State's method of execution
merely by showing a slightly or marginally safer alternative .... Permitting an
Eighth Amendment violation to be established on such a showing would threaten
to transfonn courts into boards of inquiry charged with detern1ining 'best practices'
for executions, with each ruling supplanted by another round of litigation touting a
new and improved methodology." Baze, 553 U.S. at 51. The Supreme Court
found no support for such an approach in its cases and found such inquiries "would
substantially intrude on the role of state legislatures in implementing their
execution procedures - a role that by all accounts the States have fulfilled with an
earnest desire to provide for a progressively more humane manner of death." Id.
37
Due process does not require that this Court provide Hill one more opportunity to
challenge his method of execution.
Due process does require the right to notice and a meaningful opportunity to
be heard as Hill asserts. Hill has had both the means and has been heard for almost
22 years, yet he has repeatedly failed to demonstrate any violations of his
constitutional rights that injured him. His hyperbolic rhetoric insisting that a gross
injustice will occur if he does not obtain the names, addresses, and phone numbers
of those involved in providing the pentobarbital to be used in his execution does
not establish his constitutional rights will be violated, no matter how many times
he repeats it. The refusal of State officials to disclose information protected by
State law regarding the source of the pentobarbital is simply a collateral issue and
does not deny Hill notice or an opportunity to be heard. It simply denies him
protected private information of individuals equally entitled to the protection of
their constitutional rights to privacy and to not be harassed.
Moreover, the State would note that it has not refused to disclose the manner
in which the pentobarbital was made, so the accusation that the State is denying
Hill due process in not providing that information is not factually accurate nor the
basis for declaring O.C.G.A. 42-5-36(d) unconstitutional.
Further, Hill can be heard on his Eighth Amendment claim regarding the use
of pentobarbital and has had the required notice and opportunity to be heard under
38
the Due Process Clause for almost one year, when the execution protocol was
changed to the use of a single drug. He has not in the year since the protocol
change availed himself of that opportunity. The State did not- and is not-
denying him his right to be heard; his own delay in raising his Eighth Amendment
claim has.
Finally, Hill again relies on disclosure principles only available under the
Fifth and Sixth Amendments to the Constitution to individuals during their
criminal prosecutions and trials - the right to confront the evidence against them
and to discover information in the possession of the State necessary to assert and
prove a defense. Hill alleges that there is no reason why the rationale applicable in
those cases should not apply here, but he is simply wrong. The rationale
underlying those cases was based on constitutional guarantees available only to
criminal defendants during their prosecutions and trials. Those constitutional
guarantees do not, and should not, apply in civil proceedings long after a finding of
guilt has been made, a sentence imposed, and 22 years of appeals litigated. To see
that justice is served, the State's duty is, at this late date, to see that Hill's lawfully
imposed death sentence is carried out.
Hill has not shown any likelihood of success on the merits of his
constitutional challenges to O.C.G.A. 42-5-36(d). Therefore, this Court should
deny him an injunction and a stay of execution.
39
III. CONCLUSION
For the above and foregoing reasons, this Court should deny Hill's
Emergency Motion for an Injunction.
Please Address All
Communications To:
SABRINA GRAHAM
Assistant Attorney General
40 Capitol Square, S.W.
Atlanta, Georgia 30334
Telephone: (404) 656-7659
Facsimile: (404) 651-6459
Email: sgraham@law.ga.gov
Submitted this 15th day of July, 2013.
SAMUEL S. OLENS
Attorney General
BETH A. BURTON
Deputy Attorney General
~ . ~
SABRINA GRAHAM
Senior Assistant Attorney General
ridsJ ( LA.M!i:Af.1J ~ ~
MITCHELL WATKINS I
Assistant Attorney General
40
551540
027500
305755
740559
CERTIFICATE OF SERVICE
I hereby certify that on the 15th day of July, 2013, I have this day served the
within and foregoing RESPONSE, prior to filing the same, by depositing a copy
thereof, postage prepaid, in the United States Mail, properly addressed, upon:
Brian Kammer
Georgia Resource Center
303 Elizabeth Street, NE
Atlanta, GA 30307
georgiaresource@mindspring.com
MITCHELL WATKINS
Assistant Attorney General
40 Capitol Square, S.W.
Atlanta, Georgia 30334
Telephone: ( 404) 651-9298
Facsimile: (404) 651-6459
Email: mwatkins@law.ga.gov
ATTACHMENT A
Product Release Report
Prollmlnary Date
Report Dale 7/10/2013
Sample No.
- Prot;luct Description
Lot No.
Pentobarbital Sodium 60 mg/mL lnj. Soln.
Expiry S/812013
Release Specification: SPEC-APST-035.0
Procedure Specification Final Data
Sterility Negative
Assay 92.Q-108.0% 100.4%
as Pentobarbllal Sodium ( 5 0 ~ 17 mg/mq
Acce/eraled mri/Uy tNUng for Ibis product based on USP <71> template.
Status Date of Test
Passes 7/10/2013
Reference
ACC-SOP-001.0
USP <71>
TM-217.0
ATTACHMENT B
State by State Lethal Injection I Death Penalty Information Center http:/ /www.deathpenaltyinfo.orglstate-lethal-injection
1 of3
1) P DEATH PENAL TV (!!
I c: INFORMATION CENTER
Mob,!' ,,
Resources
State by State Lethal Injection
Most states use a 3-d rug combination for lethal injections: an anesthetic (either pentobarbital or, formerly, sodium thiopental),
pancuronium bromide (a paralytic agent, also called Pavulon), and potassium chloride (stops the heart and causes death).
ONE DRUG: Seven states have used a single-drug method for executions--a lethal dose of an anesthetic (Arizona, Georgia,
Idaho, Ohio, South Dakota, Texas, and Washington). Four other states have announced use of one-drug lethal injection protocols.
but have not carried out such an execution (Arkansas, Kentucky, Louisiana, and Missouri).
PENTOBARBITAL: Thirteen states have used pentobarbital in executions: Alabama, Arizona, Delaware, Florida, Georgia,
Idaho, Mississippi, Ohio, Oklahoma, South Carolina, South Dakota, Texas, and Virginia. Three additional states plan to use
pentobarbital: Kentucky, Louisiana, and Montana.
PROPOFOL: One state plans to use propofol (Diprivan), in a single-drug protocol: Missouri
PHENOBARBITAL: One state plans to use phenobarbital, in a single-drug protocol: Arkansas
In federal executions, the method is determined by the state in which the sentencing took place. All 3 of the federal executions in the modern era have been by
lethal injection carried out in a federal facility in Indiana. Apparently, a 3-drug combination was used, though prison officials did not reveal the exact ingredients.
(See Washington Post, Dec. 5, 2000). The U.S. Military has not carried out any executions since reinstatement. It plans to use lethal injection.
LETHAL INJECTION "FIRSTS"
First state to use lethal injection: Texas, December 7, 1982
First state to use one-drug method: Ohio, December 8, 2009 (single drug was sodium thiopental)
First state to use pentobarbital in three-drug protocol: Oklahoma, December 16, 2010
First state to use pentobarbital in one-drug protocol: Ohio, March 10, 2011
For drugs used in individual executions, see Executions In Executions in 2010
lhllp://w.w.deathpenattyinfo.()(g/aJOlCution-ist-2010), Executions in orn:"on...""\Jilon-olll Zll t tl , Executions in 2012 (hl!p:/iwwwdea!hpenattyinfo.()(Q'e><>eution
Executions in 2013
State-by-State Lethal Injection Information
State Used Used Latest Information
Pentobarbital in One-Drug
Executions? Protocol?
Alabama Yes No sodium thiopental seized by DEA in March 2011 (ACLU of Northern CA, 5/17/11)
began using pentobarbital in three-drug protocol on May 19, 2011 (Reuters, 5/19/11)
Arizona Yes Yes began using pentobarbital in three-drug protocol on May 25, 2011 (AP. 5/25/11)
switched to one-drug protocol (pentobarbital) on February 29, 2012 (AP, 2/29/12)
Execution protocol has been changed to allow witnesses to watch all of the execution. Previously, witnesses could
not watch the insertion of IV lines (Associated Press, 6/7/12)
at least enough pentobarbital for two more executions (AP, 9/19/12)
Arkansas No Intends to turned over sodium thiopental to DEA in July 2011 (AP, 7/21/11)
obtained unspecified amount of sodium thiopental from British company (AP, 1/21/11)
executions on hold because lethal injection law violates state constitution (2012)
Legislature passed law rewriting execution protocol, calls for one-drug procedure, but does not specify drug (AP,
2/20/13)
Announced plans to use phenobarbital in executions. No other state has used or plans to use the drug in
executions_ (AP, 4/16/13)
California* No No obtained sodium thiopental from British company, enough for 86 executions (AP, 1/21/11)
executions on hold due to lethal injection challenge in courts; the governor has recommended that the Dept of
Corrections consider changing to a 1-drug protocol
7/15/2013 9:55AM
State by State Lethal Injection I Death Penalty Information Center http://www.deathpenaltyinfo.orgjstate-lethal-injection
a Superior Court judge rejected requests to set execution dates, saying he did not have jurisdiction to order the
one-drug procedure that has never been used in California (AP. 9/11/12)
Colorado No No executions on hold due to lethal injection challenge in courts
Connecticut No No uses three-drug protocol; death penalty abolished, but 11 inmates remain on death row
Delaware Yes No began using pentobarbital in three-drug protocol on July 29,2011 (delawareonline.com, 7/29/11)
Florida Yes No began using pentobarbital in three-drug protocol on September 28, 2011 (Washington Post, 9/29/11)
Georgia Yes Yes used foreign-bought sodium thiopental in 2 executions before sodium thiopental was seized by DEA in March 2011
(ACLU of Northern CA, 5/17/11)
began using pentobarbital in three-drug protocol on June 23, 2011 (Reuters, 6/23/11)
supply of 17 vials of pentobarbital (enough for about 6 executions) expires March 1, 2013 (AP, 2/18/13)
began using one-drug protocol on February 21. 2013 (The Guardian, 2/21/13)
Idaho Yes Yes began using pentobarbital in three-<lrug protocol on November 18, 2011
First used one-<lrug method (pentobarbital) on June 12, 2012
Indiana No No uses three-drug protocol
Kansas No No statute does not specify drugs; no executions since in modern era
Kentucky Intends to Intends to sodium thiopental was seized by DEA in April 2011 (ACLU of Northern CA, 5/17/11); a state judge has ordered the
prison system to consider using a 1-drug protocol.
New execution method calls for 1- or 2-drug lethal injection, depending on availability of drugs. New protocol takes
effect 2/1/13, but must be approved by a judge before executions can resume. (AP, 1/31/13)
Louisiana Intends to Intends to announced change to one-drug procedure using pentobarbital (Baton Rouge Advocate, 2/6/13)
Execution scheduled for 2/13/13 has been stayed. Judge requires additional information on new execution
procedure. (AP, 2/7/13)
Maryland No No executions on hold until lethal injection procedures are enacted; death penalty abolished, 5 inmates remain on
death row
Mississippi Yes No began using pentobarbital in 3-drug protocol on May 10, 2011 (AFP, 5/10/11)
5th U.S. Circuit Court of Appeals has agreed to hear challenge to Mississippi's lethal injection protocol; executions
on hold (Associated Press, 8/4/12)
Missouri No Intends to announced plans to switch to one-drug protocol using 2 grams of propofol (Missouri Department of Corrections,
5/15/12)
Montana No No modified protocol to allow for use of pentobarbital (KXLH.com, 8/15/11)
District Court judge ruled Montana's execution procedure unconstitutional (Canadian Press, 9/6/12)
Nebraska No No obtained sodium thiopental from Indian company, enough for 166 executions (Lincoln Journal Star, 1/21/11 and
1/27/11)
Carey Moore execution stayed to allow time for legal challenge of imported sodium thiopental (Lincoln Journal Star,
5/25/11)
obtained new supply (485 grams, or enough for about 100 executions) of sodium thiopental from Swiss company
(AP, 11/3/11)
Naari AG, the Swiss company that produced Nebraska's supply, asked Nebraska to return it. Naari gave the drug to
an Indian man "who said he wanted to use it and eventually sell it as an anesthetic in Zambia," and did not intend it
to be used in executions. (CBS News, 11/30/11 ). The FDA has ordered Neb. to turn over any foreign sodium
thiopental. Neb. has refused. FDA is appealing federal court ruling requiring it to recall II foreign thiopental. (2012).
Nevada No No executions on hold due to lethal injection challenge in courts
New No No statute does not specify drugs; no executions in modern era
Hampshire
New Mexico No No abolished death penalty in 2009, two inmates remain on death row and may face execution by lethal injection
North No No executions on hold due to lethal injection challenge in courts
Carolina
Ohio Yes Yes began using pentobarbital in one-drug protocol on March 10, 2011 (Washington Post, 3/11/11); state has a
backup plan of using a 2-drug injection into the muscle of an inmate if a vein cannot be found.
supply of pentobarbital expires September 2013 (AP, 9/19/12)
Department of Rehabilitation and Correction has requested that doctors participate in executions and be protected
from professional sanctions for doing so. (AP, 2/15/13)
Oklahoma Yes No began using pentobarbital in three-drug protocol on December 16, 2010 (CBS News, 12/17/10)
enough pentobarbital for 20 executions (AP, 9/1 9/12)
Oregon No No reselling execution drugs through reverse wholesaler after Gary Haugen execution was cancelled (The Oregonian,
1/3/12)
Pennsylvania No No statute does not specify drugs
2 of3 7/15/2013 9:55AM
State by State Lethal Injection I Death Penalty Information Center http://www .deathpenaltyinfo.orgl state-lethal-injection
3 of3
South Yes No sodium thiopental was seized by DEA in April 2011 (ACLU of Northern CA, 5/17/11)
Carolina
began usi ng pentobarbital In three..<Jrug prok:>col on May 6. 2011 (Reuters, 5/6/11)
South Yes Yes Department of Corrections officially altered lethal injection procedures to allow for a one-, two- or three-drug
Dakota execution process. Changes to procedure will aUow either sodium thiopental or pentobarbital to be used in one..<Jrug
protocol, or as initial drug in other protocols. State has obtained a supply of pentobarbital. (Sioux Falls Argus
Leader, 10/22/11)
began using pentobarbital in one..<Jrug protocol on October 15, 2012 (Associated Press, 10/16/12)
Tennessee No No sodium thiopental was seized by DEA in March 2011 (ACLU of Northern CA, 5/17/11)
has no supply of sodium thiopental or pancuronium bromide (AP, 1/14/13)
Texas Yes Yes began using pentobarbital in three-drug protocol on May 3, 2011 (Wall Street Journal, 5/4/11)
as of May 21, 2012, Department of Criminal Justice has enough lethal injection drugs for 23 executions
(Associated Press, May 21 , 2012)
began using pentobarbital in one..<Jrug protocol on July 18,2012 (BBC News, July 18, 2012)
enough pentobarbital for 23 executions (AP, 9/19/12)
Utah No No uses three-drug protocol
Virginia Yes No began using pentobarbital in three-drug protocol on August 18, 2011 (Washington Post, 8/18/11)
announced switch from pancuronium bromide to rocuronium bromide for second drug in three-drug protocol
(Associated Press, 7/27/12)
Washington No Yes choice of 1- or 3-drug protocol; used 1..<Jrug (sodium thiopental) in execution of Cal Brown on 9/10/10
Wyoming No No uses three-drug protocol
marks states that received letters in April 2012 from the FDA requesting that they turn over their foreign-sourced lethal injection drugs, in accordance with the
U.S. District Court ruling in Beatv v. FDA (http://-.v.dealhpenaltyinto.or!J/docwnen1S/BeatyV.FDAM'"no.pdf) (Lincoln Journal Star, 4/18/12)
Related Links:
For drugs used in individual executions, see Executions in 2011 (h!!p:l/""""".dealhpenaltyinro.org/e>llCution-list-2011), Executions in 2012 (htlp:llw.w.o.dea!hpenattvinro.org
le:>Cu!ior>-listm and Executions in 2013 lhtlp:IIWNN.dealhpenaltvirto.org!e>oecution-hst-2013)
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