Death penalty ‘secrecy statute’ goes before Indiana Supreme Court

The longstanding dispute over whether the Indiana Department of Correction can keep the identities of its lethal-injection drug suppliers secret reached the Indiana Supreme Court this week, with the parties offering strongly divergent views on Hoosier public access laws and constitutional rights.

The court, minus Justice Geoffrey Slaughter, heard arguments remotely on Wednesday in Indiana Department of Correction v. A. Katherine Toomey, 19S-PL-401. A. Katherine Toomey, a lawyer in Washington, D.C., filed the case after her 2014 public records request for information about the lethal injection drugs was denied.

Since that time, all three branches of Hoosier government have been involved in the dispute.

In 2016, Marion Circuit Judge Sheryl Lynch entered judgment in Toomey’s favor on her complaint to compel DOC disclosure. Then, after an 11th-hour Statehouse maneuver to create a so-called secrecy statute, the DOC moved Lynch to reconsider her ruling under the new statute, which requires that information about Indiana’s death penalty drugs be kept confidential.

But Lynch declined, ruling instead that lawmakers had “overstepped” when they enacted the secrecy statute, which she struck down as unconstitutional.  She later ordered the state to pay $538,000 in Toomey’s attorney fees

The next step was a direct appeal to the state Supreme Court, which heard arguments from Indiana Solicitor General Thomas M. Fisher, representing the state, and Indianapolis lawyer Peter Racher of Plews Shadley Racher & Braun, representing Toomey.

Fisher presented the public-access dispute as another approach to promoting an anti-death penalty policy. The Indiana General Assembly has so far declined to abolish capital punishment, Fisher said, so this litigation serves as an “alternative”: publicly shaming suppliers so that they won’t provide their drugs to the DOC.

Racher, however, said the Access to Public Records Act provides no exception that could shield the DOC from disclosure. The Marion Circuit Court handed down a judgment against the state, he said, and the state can’t respond by creating a new law that would change that judgment.

To that end, Racher said Lynch was within her discretion to decline the DOC’s request to modify her original judgment in Toomey’s favor. He told the justices that the DOC did not approach the trial court with clean hands, because it had been part of the effort to “engineer” the secrecy statute in 2017.

But Fisher does see an abuse of discretion — an “obvious inequity” in the trial court’s decision not to retroactively apply the statute in the state’s favor. It’s not unusual for the General Assembly to enact laws that affect litigation while the litigation is pending, he said, adding that Lynch’s judgment was not “final.”

Both Lynch and Racher portrayed the 2017 enactment of the secrecy statute as a separation of powers violation. The lawyer warned the justices of the “dangerous precedent” the Supreme Court would set if it ruled for the DOC, saying such a ruling would give the state license to attempt to “stop the clock” on adverse litigation by seeking a legislative “fix.”

In rebuttal, however, Fisher took issue with that characterization, arguing that it’s not uncommon for the three branches of justices to coordinate when drafting laws.

“That is what coordinate branches of government do,” he told the justices.

Fisher also disagreed with Racher on whether Lynch’s ruling was “final.” Racher argued that it was, saying the only issue left for resolution was the “auxiliary, collateral” determination of the appropriate award of attorney fees.

A ruling can be “final” for constitutional purposes, even if it’s not final under the appellate rules, Racher continued. Litigants have a vested right in a court’s judgment, he said, and the Legislature cannot take that right away.

The arguments also featured issues including contracting requirements, special laws and the appropriate standard of review. The full argument is available here.

Watch for more on this case in the June 10 edition of Indiana Lawyer.

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