Justices split, let stand rulings against DOC over death penalty secrecy

The Indiana Supreme Court has evenly split in a long-running dispute over disclosure of records concerning the state’s lethal injection drugs, clearing the way for disclosure of the records and the payment by the state of more than a half-million dollars in legal fees.

Justices divided 2-2 in a case brought by a Washington, D.C., attorney against the Indiana Department of Correction over Indiana’s “secrecy statute” that prohibits disclosure of the state’s lethal injection drugs and who supplies them.

With Justice Geoffrey Slaughter not participating, the remaining justices split in an order issued Thursday. By rule, the lack of a majority affirms the rulings of Marion Circuit Judge Sheryl Lynch, ordering DOC to disclose the records, awarding $538,000 in attorney fees to Washington attorney Katherine Toomey and granting other relief.

Chief Justice Loretta Rush and Justice Christopher Goff voted to affirm the trial court while justices Steven David and Mark Massa voted to reverse. “The trial court’s June 12, 2019 ‘Order for Plaintiff’s Fee Petition’; November 29, 2018 ‘Order Denying the Department of Correction’s Motion to Modify Summary Judgment Order’; July 12, 2018 ‘Findings of Fact and Conclusions of Law Regarding Defendant’s Request that Documents Be Made Public Pursuant to Indiana Administrative Rule 9(G)(4) and I.C. § 5-14-3-1 et seq.’; and October 24, 2016 ‘Ruling on Motion for Summary Judgment’ are hereby affirmed,” Rush wrote for the court. “Petitions for rehearing are not allowed.”

Lynch’s orders struck down the so-called “secrecy statute” that she called an unconstitutional overreach of the General Assembly that undermined her prior order that DOC disclose its potential lethal injection formulation. The secrecy statute language was included as an amendment to the state budget bill — posted at 2 a.m. on April 21, 2017, in the session’s final hours. Lynch held the statute wasn’t just an unconstitutional violation of separation of powers, but that it also violated the state’s prohibition against special laws.

The Indiana Attorney General’s Office, which defended the state in this litigation, issued a statement Saturday. “We are profoundly disappointed by the Indiana Supreme Court’s order,” the statement said. “The required disclosure of the manufacturers and suppliers of lethal injection drugs will continue to impede Indiana’s ability to carry out lawfully imposed sentences. This decision does not resolve the several important issues presented by this case, so the courts will undoubtedly be called upon again to wrestle with these issues in future cases at great expense to taxpayers.”

Plews Shadley Racher & Braun partner Peter Racher, whose firm represented Toomey, hailed the high court’s decision.

“We and our client Kate Toomey are gratified that the Marion County Circuit Court’s orders have been affirmed by the Indiana Supreme Court,” Racher said in an email Friday. “The Supreme Court’s decision is a vindication of Indiana’s Access to Public Records Act. Ms. Toomey made her request for lethal injection public records back in 2014. Pursuant to APRA, she should have received all the records she requested.  Judge Lynch of the Marion County Circuit Court ordered the state Department of Correction to comply with Ms. Toomey’s request in 2016, and again in 2018.  Now that the Indiana Supreme Court has spoken, we look forward to obtaining all the responsive records from the Department of Correction as soon as possible.”

Manufacturers of drugs and compounds that could potentially be used in lethal injection formulations have increasingly declined to provide them for those purposes.

Editor’s note: This article has been updated to include comment from the Indiana Attorney General’s Office.

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