Kelley v. Johnson , 2016 Ark. 268 ( 2016 )


Menu:
  •                                    Cite as 
    2016 Ark. 268
    
    
                    SUPREME COURT OF ARKANSAS
                                CV-15-992  No.
    WENDY KELLEY, IN HER OFFICIAL
                                    Opinion Delivered: June 23, 2016
    CAPACITY AS DIRECTOR,
    ARKANSAS DEPARTMENT OF
    CORRECTION; AND ARKANSAS        APPEAL FROM THE PULASKI
    DEPARTMENT OF CORRECTION        COUNTY CIRCUIT COURT
                        APPELLANTS [60CV-15-2921]
    
    V.
                                                     HONORABLE WENDELL
    STACEY JOHNSON, JASON                            GRIFFEN, JUDGE
    MCGEHEE, BRUCE WARD, TERRICK
    NOONER, JACK JONES, MARCEL
    WILLIAMS, KENNETH WILLIAMS,
    DON DAVIS, AND LEDELL LEE       REVERSED AND DISMISSED;
                          APPELLEES MOTION TO STRIKE MOOT.
    
    
    
    
                       COURTNEY HUDSON GOODSON, Associate Justice
    
           Appellants Wendy Kelley, in her official capacity as Director of the Arkansas
    
    Department of Correction, and the Arkansas Department of Correction (collectively
    
    “ADC”) appeal the orders entered by the Pulaski County Circuit Court denying their
    
    motions to dismiss and for summary judgment against multiple claims challenging the
    
    constitutionality of Act 1096 of 2015 brought by appellees Stacey Johnson, Jason McGehee,
    
    Bruce Ward, Terrick Nooner, Jack Jones, Marcel Williams, Don Davis, and Ledell Lee
    
    (collectively “Prisoners”).   For reversal, ADC contends that the Prisoners failed to
    
    sufficiently plead and prove their asserted constitutional violations in order to overcome the
    
    defense of sovereign immunity. We reverse the circuit court’s decision in toto and dismiss
    
    the Prisoners’ amended complaint.
                                       Cite as 
    2016 Ark. 268
    
                                           I. Factual Background
    
           This litigation was initiated by the Prisoners who are under sentences of death for
    
    capital murder, and the issues are centered on Act 1096 of 2015 (the “Act”), which is
    
    codified at Arkansas Code Annotated section 5-4-617 (Supp. 2015). The Act establishes
    
    the current method by which executions are to be conducted in Arkansas.
    
           The Act amends the previous method-of-execution statute, formerly found at
    
    Arkansas Code Annotated section 5-4-617 (Repl. 2013), that was passed into law by Act
    
    139 of 2013. Under Act 139, the protocol entailed the intravenous administration of a
    
    benzodiazepine to be followed by a “lethal injection of a barbiturate in an amount sufficient
    
    to cause death.” Ark. Code Ann. § 5-4-617(a) & (b) (Repl. 2013). It also exempted
    
    information about execution procedures and their implementation from the Arkansas
    
    Freedom of Information Act (FOIA). Ark. Code Ann. § 5-4-617(g) (Repl. 2013). The
    
    Prisoners, with the exception of Ledell Lee, previously brought a declaratory-judgment
    
    action against ADC in regard to Act 139. In that complaint, the Prisoners asserted, among
    
    other things, that Act 139 violated the separation-of-powers doctrine under the Arkansas
    
    Constitution because the statute delegated unbridled discretion to ADC in determining
    
    which drug was to be used for lethal injection. In connection with that lawsuit, the parties
    
    entered into a settlement agreement on June 14, 2013. Because ADC had decided not to
    
    employ the then existing lethal-injection protocol, the Prisoners agreed to forgo their as-
    
    applied claims contesting the constitutionality of the protocol in exchange for ADC’s
    
    agreement to not raise the defense of res judicata should the Prisoners reassert an as-applied
    
    claim. Also as part of the settlement, ADC agreed to provide a copy of the new protocol,
    
    
                                                  2
                                          Cite as 
    2016 Ark. 268
    
    and once the selected drugs were obtained, to “disclose the packaging slips, package inserts,
    
    and box labels received from the supplier.” Ultimately, the Prisoners prevailed in the circuit
    
    court on their facial challenge to Act 139. However, this court reversed, holding that Act
    
    139 did not violate separation of powers because the statute provided reasonable guidelines
    
    to ADC in determining the method to use in carrying out the death penalty. Hobbs v.
    
    McGehee, 
    2015 Ark. 116
    , 458 S.W.3d 707.1
    
           Act 1096 became effective on April 6, 2015, soon after our decision in McGehee.
    
    The salient features of the present Act are two-fold. First, it modifies the permissible means
    
    of execution by lethal injection:
    
           (c) The department shall select one (1) of the following options for a lethal-
           injection protocol, depending on the availability of the drugs:
    
                  (1) A barbiturate; or
    
                  (2) Midazolam, followed by vecuronium bromide, followed by
                  potassium chloride.
    
    Ark. Code Ann. § 5-4-617(c) (Supp. 2015). Further, the Act provides that the drugs used
    
    to carry out the lethal injection shall be (1) approved by the United States Food and Drug
    
    Administration (FDA) and made by a manufacturer approved by the FDA; (2) obtained by
    
    a facility registered with the FDA; or (3) obtained from a compounding pharmacy that has
    
    been accredited by a national organization that accredits compounding pharmacies. Ark.
    
    
    
           1
             Prior to the decision in McGehee, supra, this court struck down the 2009 Methods
    of Execution Act on a separation-of-powers claim because the legislation granted ADC the
    unfettered discretion to determine all protocols and procedures for implementing
    executions, including the chemicals to be used. Hobbs v. Jones, 
    2012 Ark. 293
    , 
    412 S.W.3d 844
    .
    
    
                                                   3
                                       Cite as 
    2016 Ark. 268
    
    Code Ann. § 5-4-617(d) (Supp. 2015). Like Act 139 of 2013, the Act also provides that
    
    the ADC shall carry out the sentence of death by electrocution if execution by lethal
    
    injection is invalidated by a final and unappealable court order. Ark. Code Ann. § 5-4-
    
    617(k) (Supp. 2015).
    
           The second departure from the former law lies in the Act’s nondisclosure provisions.
    
    While the Act maintains the previous FOIA exemption, it also contains the following
    
    confidentiality requirements:
    
           (2) The department shall keep confidential all information that may identify
           or lead to the identification of:
    
                  (A) The entities and persons who participate in the execution
                  process or administer the lethal injection; and
    
                  (B) The entities and persons who compound, test, sell, or supply
                  the drug or drugs described in subsection (c) of this section,
                  medical supplies, or medical equipment for the execution
                  process.
    
           (3) The department shall not disclose the information covered under this
           subsection in litigation without first applying to the court for a protective
           order regarding the information under this subsection.
    
    Ark. Code Ann. § 5-4-617(i) & (j). As pertinent here, the Act permits ADC to make
    
    available to the public the following information, so long as the identification of the seller,
    
    supplier, or testing laboratory is redacted and maintained as confidential: package inserts
    
    and labels, if the drugs used in the protocol have been made by a manufacturer approved by
    
    the FDA; reports obtained from independent testing laboratories; and ADC’s procedure for
    
    administering the drugs, including the contents of the lethal-injection drug box.
    
           The Prisoners first filed suit in April 2015 against ADC in the Pulaski County Circuit
    
    Court, challenging the constitutionality of the Act. ADC removed the action to federal
    
                                                  4
                                        Cite as 
    2016 Ark. 268
    
    court. However, the Prisoners promptly dismissed the federal case without prejudice and
    
    returned to the circuit court with the filing of an amended complaint, asserting claims only
    
    under the Arkansas Constitution. In response to a motion to dismiss filed by ADC, the
    
    Prisoners filed the present action under a new case number.
    
           During the course of the litigation, ADC informed the prisoners of its intent to
    
    execute them using the three-drug combination of Midazolam, vecuronium bromide, and
    
    potassium chloride. In connection with that disclosure, ADC provided to the Prisoners
    
    package inserts and labels for the drugs, redacting the identity of the supplier of the drugs,
    
    in accordance with the Act. ADC also provided the Prisoners with the lethal-injection
    
    protocol to be used in the executions. The protocol calls for a total dose of 500 milligrams
    
    of Midazolam, 100 milligrams of vecuronium bromide, and 240 milliequivalents of
    
    potassium chloride. On September 9, 2015, the State set execution dates for each of the
    
    Prisoners, except Ledell Lee. On application of the Prisoners, the circuit court issued a
    
    temporary restraining order staying the scheduled executions. On October 20, 2015, this
    
    court granted ADC’s petition for writ of certiorari to lift the stays of execution erroneously
    
    ordered by the circuit court, based on the holding that a circuit court, in no uncertain terms,
    
    lacks the authority to stay executions. Kelley v. Griffen, 
    2015 Ark. 375
    , 
    472 S.W.3d 135
    .
    
    However, we simultaneously granted the Prisoners’ request to stay their executions pending
    
    the resolution of the underlying litigation. Id.
    
           Meanwhile, on September 28, 2015, the Prisoners filed an amended complaint,
    
    which is the operative pleading at issue in this appeal. The amended complaint contains
    
    separate causes of action that fall into two categories: claims challenging the constitutionality
    
    
                                                   5
                                         Cite as 
    2016 Ark. 268
    
    of the Act’s nondisclosure provisions regarding the identity of the supplier of the drugs, and
    
    claims challenging the constitutionality of the selected method of execution. Each claim is
    
    made under the Arkansas Constitution. With respect to nondisclosure, the Prisoners alleged
    
    that the confidentiality provisions of the Act (1) violate the Contract Clause, found at article
    
    2, section 17, by impairing the disclosure obligations undertaken by ADC in the June 2013
    
    settlement agreement; (2) offend the freedoms of speech and of the press guaranteed by
    
    article 2, section 6; (3) violate their rights to procedural protections that are part of the Cruel
    
    or Unusual Punishment Clause set forth in article 2, section 9; (4) transgress the right to
    
    procedural due process under article 2, section 8; (5) violate separation of powers by
    
    precluding adequate judicial review of the means of execution; and (6) are contrary to the
    
    Publication Clause found at article 19, section 12. Regarding the means of execution, the
    
    Prisoners alleged that (1) implementation of the Act violates the right of substantive due
    
    process found in article 2, section 8 of the Arkansas Constitution; (2) the Act violates
    
    separation of powers under article 4 by delegating unfettered discretion to ADC; (3)
    
    execution using either the three-drug-Midazolam protocol, compounded drugs, or
    
    electrocution constitutes cruel or unusual punishment under article 2, section 9; and (4) the
    
    Act violates the Ex Post Facto Clause of article 2, section 17.
    
           ADC filed a motion to dismiss the amended complaint on the ground of sovereign
    
    immunity. In the motion, ADC argued that the Prisoners’ claims were barred by sovereign
    
    immunity because the complaint failed to state cognizable claims of any constitutional
    
    violation. In an order dated October 9, 2015, the circuit court dismissed the Prisoners’
    
    separation-of-powers claim as to the allegation of improper delegation of authority, based
    
    
                                                    6
                                        Cite as 
    2016 Ark. 268
    
    on this court’s decision in McGehee, supra, but the court denied the motion to dismiss with
    
    regard to the contract-clause claim, the freedom-of-speech and press claim, the claims
    
    regarding procedural due process, the separation-of-powers claim with respect to the
    
    function of the judiciary, and the method-of-execution claims that the lethal-injection
    
    procedure violates the ban on cruel or unusual punishment and the alleged right of
    
    substantive due process to be free of objectively unreasonable risks of substantial and
    
    unnecessary pain and suffering.
    
           ADC subsequently filed a motion asking the circuit court to address its request for
    
    dismissal with regard to three of the Prisoners’ claims that the circuit court had neglected to
    
    rule on in its October 9, 2015 order. On October 22, 2015, the circuit court entered a
    
    supplemental order to provide a decision concerning the omitted claims.            The court
    
    dismissed the Prisoners’ contention that the Act violated the ex post facto clause of the
    
    Arkansas Constitution, but the court denied the motion to dismiss the claim regarding the
    
    publication clause of the Arkansas Constitution and the due-process claim asserted in
    
    conjunction with the allegation of cruel or unusual punishment. The circuit court also ruled
    
    that the Prisoners had pled sufficient facts demonstrating feasible alternatives to the current
    
    method of execution. ADC filed a notice of appeal from the two orders ruling on their
    
    motion to dismiss.
    
           The Prisoners moved for partial summary judgment, and ADC moved for summary
    
    judgment on all the remaining claims asserted by the Prisoners. In its motion, ADC argued
    
    that it was entitled to summary judgment on grounds of sovereign immunity because the
    
    Prisoners had not proved viable claims of any constitutional violation. The circuit court
    
    
                                                  7
                                        Cite as 
    2016 Ark. 268
    
    entered an order on December 3, 2015, granting summary judgment on the disclosure
    
    claims and denying summary judgment on the means-of-execution claims. Specifically, the
    
    court granted ADC’s motion for summary judgment on the remaining separation-of-powers
    
    claim. The circuit court granted the Prisoners’ motion for summary judgment on their
    
    contract-clause claim, their claim regarding freedoms of speech and the press, their claims
    
    regarding due process, and the publication-clause claim. The circuit court denied ADC
    
    summary judgment on the Prisoners’ substantive due-process claim and the cruel-or-
    
    unusual-punishment claim, ruling that those issues could not be decided as a matter of law
    
    because material questions of fact remained in dispute. ADC filed a timely notice of appeal
    
    from this order.
    
           The parties also litigated the question of a protective order. In its December 3, 2015
    
    order, the circuit court denied ADC’s request for a protective order and directed it to
    
    identify the manufacturer, seller, distributor, and supplier of any lethal-injection drugs to be
    
    used in executions by no later than noon on December 4, 2015. On December 3, 2015,
    
    ADC applied to this court for an immediate stay of the circuit court’s order. On that same
    
    day, we granted a temporary stay of the circuit court’s disclosure order pending briefing.
    
    On January 7, 2016, we issued an immediate stay of all proceedings in the circuit court
    
    during the pendency of this appeal.
    
                                       II. Propriety of the Appeal
    
           In their brief, the Prisoners contend that this court lacks jurisdiction to hear the
    
    appeal because the circuit court did not specifically rule on the issue whether ADC is entitled
    
    to sovereign immunity. In response, ADC argues that the appeal is proper because sovereign
    
    
                                                   8
                                        Cite as 
    2016 Ark. 268
    
    immunity was the sole basis on which it moved for dismissal and for summary judgment
    
    and that the circuit court has ruled on all the issues raised in their motions.
    
           The general rule is that the denial of a motion for summary judgment is neither
    
    reviewable nor appealable. Ark. R. App. P.–Civ. 2(a)(10); Bd. of Trs. v. Pulaski Cty., 
    2013 Ark. 230
    . However, Rule 2(a)(10) of the Arkansas Rules of Appellate Procedure–Civil
    
    permits an appeal from an interlocutory “order denying a motion to dismiss or for summary
    
    judgment based on the defense of sovereign immunity.”             The rationale justifying an
    
    interlocutory appeal is that the right to immunity from suit is effectively lost if the case is
    
    permitted to go to trial. Ark. State Claims Comm’n v. Duit Constr. Co., 
    2014 Ark. 432
    , 
    445 S.W.3d 496
    .
    
           As we have explained, sovereign immunity is jurisdictional immunity from suit, and
    
    jurisdiction must be determined entirely from the pleadings. Fitzgiven v. Dorey, 
    2013 Ark. 346
    , 
    429 S.W.3d 234
    . This defense arises from article 5, section 20 of the Arkansas
    
    Constitution, which provides: “The State of Arkansas shall never be made a defendant in
    
    any of her courts.” This court has extended the doctrine of sovereign immunity to include
    
    state agencies. Ark. Dep’t of Cmty. Corr. v. City of Pine Bluff, 
    2013 Ark. 36
    , 
    425 S.W.3d 731
    . In determining whether the doctrine of sovereign immunity applies, the court should
    
    determine if a judgment for the plaintiff will operate to control the action of the State or
    
    subject it to liability. Ark. Dep’t of Human Servs. v. Fort Smith Sch. Dist., 
    2015 Ark. 81
    , 
    455 S.W.3d 294
    . If so, the suit is one against the State and is barred by the doctrine of sovereign
    
    immunity, unless an exception to sovereign immunity applies. Ark. Dep’t of Envtl. Quality
    
    v. Al-Madhoun, 
    374 Ark. 28
    , 
    285 S.W.3d 654
     (2008). This court has recognized three ways
    
    
                                                   9
                                       Cite as 
    2016 Ark. 268
    
    in which a claim of sovereign immunity may be surmounted: (1) the State is the moving
    
    party seeking specific relief; (2) an act of the legislature has created a specific waiver of
    
    sovereign immunity; or (3) the state agency is acting illegally, unconstitutionally, or if a
    
    state-agency officer refuses to do a purely ministerial action required by statute. Bd. of Trs.
    
    v. Burcham, 
    2014 Ark. 61
    . The third exception is at issue in this appeal.
    
           In arguing that the appeal is improper, the Prisoners refer to our decision in Arkansas
    
    Lottery Commission v. Alpha Marketing, 
    2012 Ark. 23
    , 
    386 S.W.3d 400
    , where we held that,
    
    before an interlocutory appeal may be taken under Rule 2(a)(10), a circuit court must
    
    provide a ruling on the defense of sovereign immunity. In that case, Alpha Marketing had
    
    filed a declaratory-judgment action against the Lottery Commission claiming that it was
    
    entitled to the exclusive use of certain trademarks that had been registered to it. Alpha
    
    Marketing also asserted that the Lottery Commission was infringing on its trademarks, and
    
    as relief, it sought damages for lost profits and an injunction to prohibit the Lottery
    
    Commission from manufacturing, using, displaying, or selling any imitations of its registered
    
    trademarks. The Lottery Commission moved to dismiss the complaint on multiple grounds,
    
    including arguments that the trademark registrations had been improperly granted and that
    
    the marks were not entitled to trademark protection. In addition, the Lottery Commission
    
    moved for dismissal on the independent ground that the doctrine of sovereign immunity
    
    barred Alpha Marketing’s request for damages and injunctive relief for trademark
    
    infringement. In a detailed written order, the circuit court denied the Lottery Commission’s
    
    motion to dismiss regarding its arguments that Alpha Marketing had not stated a valid cause
    
    of action for trademark infringement. However, the court did not rule on the Lottery
    
    
                                                  10
                                         Cite as 
    2016 Ark. 268
    
    Commission’s contention that the relief sought by Alpha Marketing was barred by sovereign
    
    immunity. Because the circuit court did not rule on the defense of sovereign immunity,
    
    and because only that claim is subject to an interlocutory appeal, we dismissed the appeal
    
    for the lack of an express ruling on the separate issue of immunity.
    
              Here, the circuit court did rule on the issue of sovereign immunity. Therefore, Alpha
    
    Marketing does not warrant the dismissal of this interlocutory appeal. In moving to dismiss
    
    and for summary judgment, ADC argued that it was entitled to judgment as a matter of law
    
    on the basis of sovereign immunity because the Prisoners failed either to plead or to prove
    
    viable and cognizable claims to demonstrate the unconstitutionality of the Act. In its orders,
    
    the circuit court accepted a few of ADC’s arguments, while rejecting others. Thus, the
    
    circuit court ruled on each and every contention advanced by ADC to support its defense
    
    of sovereign immunity. This appeal contests the court’s adverse rulings. By explicitly
    
    rejecting ADC’s asserted grounds for being immune from suit, the court did, in fact, rule
    
    on the issue of sovereign immunity. Consequently, jurisdiction lies over this interlocutory
    
    appeal.
    
                                         III. Method of Execution
    
              As its opening argument on appeal, ADC asserts that the Prisoners failed to plead and
    
    to prove that the use of the three-drug Midazolam protocol imposes cruel or unusual
    
    punishment, as prohibited by article 2, section 9 of the Arkansas Constitution. It argues that
    
    the Prisoners did not meet their burden of establishing either that the alternative execution
    
    methods proposed by the Prisoners in their amended complaint are feasible and readily
    
    implemented by the ADC or that a 500-milligram intravenous dose of Midazolam is sure
    
    
                                                   11
                                        Cite as 
    2016 Ark. 268
    
    or very likely to cause needless suffering. The Prisoners respond that they pled sufficient
    
    facts regarding the alternative methods of execution and that a genuine factual dispute
    
    remains on that issue, as well as the question whether the Midazolam protocol causes a
    
    demonstrated risk of severe pain.
    
           The law is well settled regarding the standard of review used by this court in
    
    reviewing a grant of summary judgment. Fed. Nat’l Mortg. Ass’n v. Taylor, 
    2015 Ark. 78
    ,
    
    
    455 S.W.3d 811
    . A circuit court will grant summary judgment only when it is apparent
    
    that no genuine issues of material fact exist requiring litigation and that the moving party is
    
    entitled to judgment as a matter of law. Quarles v. Courtyard Gardens Health & Rehab., LLC,
    
    
    2016 Ark. 112
    , ___ S.W.3d ___. “[W]e only approve the granting of the motion when
    
    the state of the evidence as portrayed by the pleadings, affidavits, discovery responses, and
    
    admissions on file is such that the nonmoving party is not entitled to a day in court, i.e.,
    
    when there is not any genuine remaining issue of fact and the moving party is entitled to
    
    judgment as a matter of law.” Town of Lead Hill v. Ozark Mountain Reg’l Pub. Water Auth.,
    
    
    2015 Ark. 360
    , at 3, 
    472 S.W.3d 118
    , 121–22 (quoting Flentje v. First Nat’l Bank of Wynne,
    
    
    340 Ark. 563
    , 569–70, 
    11 S.W.3d 531
    , 536 (2000)). The standard is whether the evidence
    
    is sufficient to raise a factual issue, not whether the evidence is sufficient to compel a
    
    conclusion. Talbert v. U.S. Bank, 
    372 Ark. 148
    , 
    271 S.W.3d 486
     (2008); see also Hardin v.
    
    Bishop, 
    2013 Ark. 395
    , 
    430 S.W.3d 49
    . The object of summary-judgment proceedings is
    
    not to try the issues, but to determine if there are any issues to be tried, and if there is any
    
    doubt whatsoever, the motion should be denied. Walls v. Humphries, 
    2013 Ark. 286
    , 
    428 S.W.3d 517
    .
    
    
                                                  12
                                         Cite as 
    2016 Ark. 268
    
           On review, this court determines if summary judgment was appropriate based on
    
    whether the evidence presented in support of summary judgment leaves a material question
    
    of fact unanswered. Lipsey v. Giles, 
    2014 Ark. 309
    , 
    439 S.W.3d 13
    . We view the evidence
    
    in the light most favorable to the party against whom the motion was filed, resolving all
    
    doubts and inferences against the moving party. Hotel Assocs., Inc. v. Rieves, Rubens &
    
    Mayton, 
    2014 Ark. 254
    , 
    435 Ark. 488
    .
    
           When reviewing a circuit court’s decision on a motion to dismiss, we treat as true
    
    the facts alleged in the complaint and view them in the light most favorable to the plaintiff.
    
    Key v. Curry, 
    2015 Ark. 392
    , 
    473 S.W.3d 1
    . In testing the sufficiency of a complaint on a
    
    motion to dismiss, all reasonable inferences must be resolved in favor of the complaint, and
    
    the pleadings are to be liberally construed. Sanford v. Walther, 
    2015 Ark. 285
    , 
    467 S.W.3d 139
    . This court’s rules require fact pleading, and a complaint must state facts, not mere
    
    conclusions, in order to entitle the pleader to relief. Ballard Grp., Inc. v. BP Lubricants USA,
    
    Inc., 
    2014 Ark. 276
    , 
    436 S.W.3d 445
    .
    
           Article 2, section 9 of our constitution provides that “cruel or unusual punishments
    
    [shall not] be inflicted.” ADC’s arguments under this point are based on the United States
    
    Supreme Court’s decisions in Baze v. Rees, 
    553 U.S. 35
     (2008), and Glossip v. Gross, ___
    
    U.S. ___, 
    135 S. Ct. 2726
     (2015), where the Court addressed the substantive elements of
    
    method-of-execution claims under the Eighth Amendment. To prevail on such a claim, a
    
    prisoner bears the burden of proving two distinct but interrelated propositions. First, he
    
    must establish that the method presents a risk that is “sure or very likely to cause serious illness
    
    and needless suffering” and that gives rise to “sufficiently imminent dangers.” Baze, 
    553 U.S. 13
                                         Cite as 
    2016 Ark. 268
    
    at 50 (quoting Helling v. McKinney, 
    509 U.S. 25
    , 33, 34–35 (1993)). The Court explained
    
    that there must be a “substantial risk of serious harm” or an “objectively intolerable risk of
    
    harm” associated with the method of execution that prevents prison officials from pleading
    
    that they were “subjectively blameless for purposes of the Eighth Amendment.” Id. (quoting
    
    Farmer v. Brennan, 
    511 U.S. 825
    , 842, 846 & n.9 (1994)). Second, a prisoner must prove
    
    that “any risk posed by the challenged method is substantial when compared to known and
    
    available alternative methods of execution.” Glossip, 135 S. Ct. at 2737–38. Under this
    
    prong of the test, a prisoner “must identify an alternative that is ‘feasible, readily
    
    implemented, and in fact significantly reduce[s] a substantial risk of severe pain.’” Id. at
    
    2737 (quoting Baze, 553 U.S. at 52). This burden is not met “by showing a slightly or
    
    marginally safer alternative.” Id.
    
            In setting these standards, the Court recognized that, because capital punishment is
    
    constitutional, “[i]t necessarily follows that there must be a [constitutional] means of carrying
    
    it out.” Glossip, 135 S. Ct. at 2732–33 (quoting Baze, 553 U.S. at 47). The standards were
    
    also shaped by the Court’s dual observations that, “because some risk of pain is inherent in
    
    any method of execution, we have held that the Constitution does not require the avoidance
    
    of all risk of pain” and that “[h]olding that the Eighth Amendment demands the elimination
    
    of essentially all risk of pain would effectively outlaw the death penalty altogether.” Id. at
    
    2733.
    
            As we have noted in the past, this court has interpreted article 2, section 9 in a manner
    
    that is consistent with precedents under federal law regarding the Eighth Amendment. See
    
    Bunch v. State, 
    344 Ark. 730
    , 
    43 S.W.3d 132
     (2001). In Bunch, we said that we will continue
    
    
                                                   14
                                        Cite as 
    2016 Ark. 268
    
    to do so unless a party offers “legal authority or persuasive argument to change our legal
    
    course.” Id. at 739, 43 S.W.3d at 138. In this case, the Prisoners urge us to disavow the
    
    requirement established in Baze, as amplified by the Court in Glossip, that a prisoner bears
    
    the burden of proving a known and available alternative to a state’s current execution
    
    protocol. They assert that we should construe our provision differently because the Eighth
    
    Amendment uses the words “cruel and unusual punishment,” whereas the Arkansas
    
    Constitution contains the disjunctive phrase “cruel or unusual punishment.” As the Court
    
    made clear in Glossip, the burden of showing a known and available alternative is a
    
    substantive component of an Eighth Amendment method-of-execution claim.                 We are
    
    not convinced that the slight variation in phraseology between the two constitutions denotes
    
    a substantive or conceptual difference in the two provisions that would compel us to
    
    disregard any part of the test governing a challenge to a method of execution. Accordingly,
    
    we decline the Prisoners’ invitation to depart from our practice of interpreting our
    
    constitutional provision along the same lines as federal precedent, and we hereby adopt the
    
    standards enunciated in both Baze and Glossip. Accordingly, in challenging a method of
    
    execution under the Arkansas Constitution, the burden falls squarely on a prisoner to show
    
    that (1) the current method of execution presents a risk that is sure or very likely to cause
    
    serious illness and needless suffering and that gives rise to sufficiently imminent dangers; and
    
    (2) there are known, feasible, readily implemented, and available alternatives that
    
    significantly reduce a substantial risk of severe pain. We now proceed to a discussion of
    
    ADC’s arguments that are based on these standards.
    
    
    
    
                                                  15
                                       Cite as 
    2016 Ark. 268
    
           ADC first contends that the Prisoners failed to meet their burden of pleading and
    
    proving that their proposed alternative methods of execution are feasible and capable of
    
    being readily implemented. In opposing this argument, the Prisoners maintain that they
    
    sufficiently pled five alternatives to the Midazolam protocol and that, for purposes of
    
    summary judgment, they presented sufficient evidence to support their contention that the
    
    alternative methods are known and readily available for use.
    
           In their amended complaint, the Prisoners pled that a number of alternative
    
    execution procedures are available that would significantly reduce the risk of pain and
    
    suffering than the use of the Midazolam protocol. First, the Prisoners proposed execution
    
    by firing squad as an alternative. They supported this allegation with the affidavit of Dr.
    
    Jonathan Groner, who stated that execution by firing squad, if skillfully performed, would
    
    result in “nearly instantaneous and painless death” because “[d]isruption of blood flow to
    
    the brain, which would result from lacerations to the heart by multiple bullets, causes almost
    
    immediate loss of consciousness, resulting in rapid death with little or no pain.” In addition
    
    to the firing squad, the Prisoners advocated the use of a massive dose of an FDA-approved,
    
    fast-acting barbiturate, such as Brevital and Nembutal. They also offered the option of a
    
    massive dose of an anesthetic gas, namely sevoflurane, desflurane, or isoflurane. In addition,
    
    the Prisoners proposed the use of a massive dose of an injectable opioid, such as Sublimaze,
    
    or a massive dose of a transdermal patch like Duragesic. The Prisoners supported the use of
    
    these lethal agents with the report of Dr. Craig Stevens, who holds a doctorate in
    
    pharmacology. Stevens opined in his report that any of these drug protocols would produce
    
    
    
    
                                                 16
                                         Cite as 
    2016 Ark. 268
    
    a rapid and painless death. Further, he identified the manufacturers of the various drugs and
    
    stated that the drugs were commercially available.2
    
           To counter the Prisoners’ proposed alternatives, ADC presented the affidavits of
    
    Executive Director Kelley and of Rory Griffin, ADC’s deputy director. In her affidavit,
    
    Kelley stated that, before the current protocol was adopted, she had made unsuccessful
    
    attempts to obtain a barbiturate to use in carrying out capital punishment by lethal injection.
    
    Kelley said that potential suppliers of lethal drugs declined to sell them to the ADC, and she
    
    explained that the sellers were concerned about adverse publicity and the loss of business if
    
    they were identified as suppliers of drugs used for executions. She further stated that the
    
    supplier who sold the FDA-approved drugs currently in ADC’s possession agreed to sell the
    
    drugs only after receiving a copy of the Act and confirming that ADC is required by law to
    
    keep its identity confidential, unless ordered to disclose the information in litigation. Finally,
    
    she averred that the supplier has taken the position that it will not provide any additional
    
    drugs for use in executions and that she is unaware of the identity of any supplier or
    
    manufacturer that will sell drugs for use in executions.
    
           In his affidavit, Griffin stated that he had conducted an investigation into the
    
    availability of drugs for use in executions. The investigation consisted of a series of phone
    
    calls Griffin made the day before swearing out the affidavit. He reported that Akorn Inc.
    
    was not willing to sell Nembutal Sodium Solution for that purpose and that Akorn requires
    
    its buyers to sign a form stating that they will not divert Akorn’s products to any department
    
    
           2
           The Prisoners attached and incorporated Groner’s affidavit and Stevens’s report into
    the amended complaint.
    
    
                                                   17
                                       Cite as 
    2016 Ark. 268
    
    of correction. Griffin reported the same information with respect to the drug Brevital after
    
    contacting a representative of Par Pharmaceuticals. He inquired of Baxter Health Corp.
    
    about the anesthetic gases of desflurane and isoflurane and was told that Baxter was not
    
    willing to sell the gases for executions.         Griffin stated that he contacted Jannsen
    
    Pharmaceuticals Co. about Sublimaze and Duragesic patches. He was advised to relay his
    
    questions in writing and that he could expect a response from them in six to eight weeks.
    
    Griffin said that he submitted a written request but that he had not received a response.
    
    Griffin stated that he also contacted a wholesale distributor from Louisiana, Morris &
    
    Dickson Co., LLC. Paul Dickson, the owner, reported that he would have to obtain
    
    approval from the manufacturers before selling drugs to ADC for use in executions.
    
           ADC contends that the Prisoners failed to “plead and prove” that the proposed
    
    alternative methods of execution to the Midazolam protocol are feasible and readily
    
    implemented by the ADC, as required under the decision in Glossip. However, we observe
    
    that the procedural posture of Glossip is much different from that which is involved in this
    
    appeal, which comes to us from motions to dismiss and for summary judgment. In Glossip,
    
    the case involved the prisoners’ request for a preliminary injunction that was denied after a
    
    three-day evidentiary hearing. The Supreme Court’s decision upholding the findings of the
    
    lower court approving the Midazolam protocol was based on the evidence developed in
    
    that record and the Court’s application of its deferential standard of review to the lower
    
    court’s findings. This places the Court’s statement that the “Eighth Amendment requires a
    
    prisoner to plead and prove a known and available alternative” in its proper context. Glossip,
    
    135 S. Ct. at 2739. Nonetheless, we agree with ADC that the Prisoners have not met their
    
    
                                                 18
                                         Cite as 
    2016 Ark. 268
    
    burden of demonstrating, even at this stage of the proceedings, that the proposed alternative
    
    drugs are available to ADC for use in an execution. In their amended complaint, the
    
    Prisoners pled only that the drugs they offered as alternatives were “commercially available.”
    
    That the drugs are generally available on the open market says nothing about whether ADC,
    
    as a department of correction, is able to obtain the drugs for the purpose of carrying out an
    
    execution. Consequently, the Prisoners failed to even allege that the proposed drug
    
    protocols are “feasible” and “readily implemented” by ADC. Accordingly, the circuit court
    
    erred in concluding that the Prisoners pled sufficient facts as to the proposed alternative
    
    drugs.
    
             We reach the same result with respect to the Prisoners’ alternative method of a firing
    
    squad. In their effort to show that death by firing squad significantly reduces a substantial
    
    risk of severe pain, the Prisoners pled that this method would result in instantaneous and
    
    painless death. In terms of whether this method is capable of ready implementation, the
    
    Prisoners merely alleged in their amended complaint that ADC has firearms, bullets, and
    
    personnel at its disposal to carry out an execution. However, these allegations are entirely
    
    conclusory in nature. Conclusory statements are not sufficient under the Arkansas Rules of
    
    Civil Procedure, which identify Arkansas as a fact-pleading state. Worden v. Kirchner, 
    2013 Ark. 509
    , 
    431 S.W.3d 243
    ; Born v. Hosto & Buchan, PLLC, 
    2010 Ark. 292
    , 
    372 S.W.3d 324
    . In this case, the Prisoners failed to substantiate the conclusory allegations contained in
    
    their amended complaint.
    
             We wish to emphasize that merely reciting bare allegations is not sufficient to show
    
    that a firing squad is a readily implemented alternative. The law in Arkansas calls for
    
    
                                                   19
                                        Cite as 
    2016 Ark. 268
    
    execution by means of intravenous lethal injection. Ark. Code Ann. § 5-4-617(a). The
    
    other authorized method is electrocution, which is to be utilized only after execution by
    
    lethal injection is invalidated by a final and unappealable order. Ark. Code Ann. § 5-4-
    
    617(k). Execution by firing squad is not identified in the statute as an approved means of
    
    carrying out a sentence of death. As such, this proposal does not comply with the current
    
    statutory scheme. In our history, the General Assembly has never seen fit to authorize this
    
    form of execution. For these reasons, it cannot be said that the use of a firing squad is a
    
    readily implemented and available option to the present method of execution. See Boyd v.
    
    Myers, No. 2:14-CV-1017, 
    2015 WL 5852948
     (WKW) (M.D. Ala. Oct. 7, 2015). As a
    
    consequence, ADC was entitled to dismissal on this proposed alternative.
    
           Because the Prisoners failed to satisfy this prong of the test for establishing a claim of
    
    cruel or unusual punishment, the circuit court erred by denying ADC’s request for dismissal
    
    of the Prisoners’ method-of-execution challenge. Consequently, we reverse and dismiss the
    
    Prisoners’ claim.
    
           Before leaving this point on appeal, we must address the Prisoners’ assertion that the
    
    Midazolam protocol violates the substantive component of article 2, section 8 of the
    
    Arkansas Constitution because the lethal-injection procedure using Midazolam entails
    
    objectively unreasonable risks of substantial and unnecessary pain and suffering. On this
    
    issue, the circuit court ruled that the Prisoners need not satisfy the requirement of offering
    
    a feasible and readily implemented alternative to the Midazolam protocol. We agree with
    
    ADC’s contention that this claim must be analyzed under the two-part test we have herein
    
    adopted for method-of-execution challenges. “If a constitutional claim is covered by a
    
    
                                                  20
                                          Cite as 
    2016 Ark. 268
    
    specific constitutional provision, such as the Fourth or Eighth Amendment, the claim must
    
    be analyzed under the standard appropriate to that specific provision, not under the rubric
    
    of substantive due process.” United States v. Lanier, 
    520 U.S. 259
    , 272 n.7 (1997) (citing
    
    Graham v. Connor, 
    490 U.S. 386
     (1989)). In applying this principle, courts have concluded
    
    that an Eighth Amendment claim that is conterminous with a substantive due-process claim
    
    supersedes the due-process claim. Curry v. Fed. Bureau of Prisons, No. 05-CV-2781, 
    2007 WL 2580558
     (PJS/JSM) (D. Minn. September 5, 2007) (collecting cases); see also Oregon v.
    
    Moen, 
    786 P.2d 111
    , 143 (Or. 1990) (recognizing that “if the imposition of the death penalty
    
    satisfies the Eighth Amendment, it also satisfies substantive due process”). This claim also
    
    fails because, as we have discussed, the Prisoners failed to establish the second prong of the
    
    Glossip test.3
    
                                               IV. Confidentiality
    
           In this appeal, ADC also contests the circuit court’s ruling—that the Act’s provision
    
    keeping the identification of the drug supplier confidential—offends the Arkansas
    
    Constitution on a number of grounds. The circuit court determined that disclosure of the
    
    supplier is compelled as a matter of procedural due process and that the confidentiality
    
    requirement violates the provision regarding freedom of speech and of the press, the contract
    
    clause, and the publication clause.
    
    
    
    
           3
             In its brief, ADC presents the argument that the Prisoners’ claims of cruel or unusual
    punishment concerning the electric chair and compounded drugs are speculative and not
    ripe for review. We agree that the scope of our review is limited to the three-drug protocol
    that ADC has chosen as the current method of execution.
    
    
                                                   21
                                         Cite as 
    2016 Ark. 268
    
           These questions appear to be moot. However, we address them under the exception
    
    to the mootness doctrine as concerning issues that raise considerations of substantial public
    
    interest which, if addressed, would prevent future litigation. Gray v. Mitchell, 
    373 Ark. 560
    ,
    
    
    285 S.W.3d 222
     (2008). “Where considerations of public interest or prevention of future
    
    litigation are present,” this court may, at its discretion, “elect to settle an issue, even though
    
    moot.” Owens v. Taylor, 
    299 Ark. 373
    , 374, 
    772 S.W.2d 596
    , 597 (2008). We discuss each
    
    issue in turn.4
    
                                      A. Procedural Due Process
    
           In their amended complaint, the Prisoners asserted that the right of due process found
    
    in article 2, section 8 of our constitution compels disclosure of the identity of the supplier
    
    of the drugs. Article 2, section 8 provides that no person “shall be deprived of life, liberty,
    
    or property, without due process of law.” The argument made by the Prisoners is based on
    
    the notion that the fundamental requirement of due process is the opportunity to be heard
    
    at a meaningful time and in a meaningful manner. See Washington v. Thompson, 
    339 Ark. 417
    , 
    6 S.W.3d 82
     (1999). Thus, they contend that, if the State proposes to deprive them
    
    
           4
              In dissent, Justice Hart is mistaken in her belief that the disclosure claims cannot be
    considered because ADC has presented no separate argument contesting the circuit court’s
    denial of its request for a protective order. ADC filed its motion seeking a protective order
    in response to the circuit court’s scheduling order requiring disclosure of the supplier of the
    drugs following the court’s denial in part of ADC’s motion to dismiss. The request for a
    protective order was made in accordance with the Act and was not presented in connection
    with its claims of sovereign immunity. Therefore, the denial of the motion for protective
    order was not subject to being appealed on an interlocutory basis pursuant to Rule 2(a)(10).
    Otherwise, an appeal from the denial of a protective order is not granted as a matter of right
    under Rule 2(f). Instead, this court may, in its discretion, accept review and only when a
    circuit court makes the findings required by the rule. The circuit court made no findings
    in this instance to support an interlocutory appeal.
    
    
                                                   22
                                        Cite as 
    2016 Ark. 268
    
    of their lives, they are entitled to a meaningful opportunity to challenge the deprivation.
    
    Consequently, the Prisoners argue that the disclosure of the identity of the supplier is
    
    essential for them to have a meaningful opportunity to litigate their claim of cruel or unusual
    
    punishment. ADC contends that the circuit court erred by accepting this argument to
    
    require disclosure. We agree.
    
           To sustain their allegation that the Midazolam protocol violates the ban on cruel or
    
    unusual punishment, it is incumbent on the Prisoners to show that the method of execution
    
    presents a risk that is sure or very likely to cause serious illness and needless suffering and
    
    that gives rise to sufficiently imminent dangers. However, the Prisoners have failed to
    
    establish that the identity of the supplier of the drugs bears any relevance to that claim.
    
    Here, the provenance of the drugs is not in question. ADC voluntarily submitted the drugs
    
    it had obtained to an independent laboratory for testing. The test results confirmed that the
    
    contents of the vials match the FDA-approved labeling and revealed that all three drugs
    
    meet applicable potency requirements. In light of this evidence, identifying the supplier of
    
    the drugs serves no useful purpose in establishing the Prisoners’ claim. Discovering the
    
    identity of the supplier does not aid their cause, nor will the lack of knowledge hinder their
    
    ability to prove their contention that the protocol is constitutionally suspect. The circuit
    
    court clearly erred in ruling that disclosure is required as a matter of due process. We are
    
    in agreement with other courts who have reached a similar conclusion. See, e.g., Zink v.
    
    Lombardi, 
    783 F.3d 1089
     (8th Cir. 2015); Wellons v. Comm’r, 
    754 F.3d 1260
     (11th Cir.
    
    2014); In re Lombardi, 
    741 F.3d 888
     (8th Cir. 2014); Sepulvado v. Jindal, 
    729 F.3d 413
     (5th
    
    Cir. 2013); Valle v. Singer, 
    655 F.3d 1223
     (11th Cir. 2011); Phillips v. DeWine, 
    92 F. Supp. 23
                                         Cite as 
    2016 Ark. 268
    
    3d 702 (S.D. Ohio 2015); Pardo v. State, 
    108 So. 3d 558
     (Fla. 2012); Lockett v. Evans, 
    330 P.3d 488
     (Okla. 2014); West v. Schofield, 
    460 S.W.3d 113
     (Tenn. 2015). Accordingly, we
    
    reverse the circuit court’s decision on this point.
    
           In their amended complaint, the Prisoners also asserted that the substantive right to
    
    be free from cruel or unusual punishment implies certain procedural safeguards, which
    
    include access to information necessary to determine a violation of that right. They alleged
    
    that the Act violates this implied procedural protection by restricting access to information
    
    that leads to the identification of the persons or entities who supply lethal-injection drugs.
    
    The question whether the right to be free from cruel or unusual punishment includes a
    
    complementary right of due process is an issue of first impression in our court. However,
    
    we need not resolve that question in this appeal. It is enough to say that, based on the
    
    foregoing discussion, the Prisoners have failed to demonstrate that the identity of the
    
    supplier of the drugs is germane to their cruel-or-unusual-punishment claim. Consequently,
    
    we also reverse on this issue.
    
                                     B. Liberty of Speech and of the Press
    
           In this point on appeal, ADC contends that the circuit court erred in concluding that
    
    the Prisoners satisfied their burden of proving the elements of their claim that is made
    
    pursuant to article 2, section 6 of the constitution. In support of the circuit court’s decision
    
    that disclosure is required under this provision, the Prisoners contend that the State has a
    
    tradition of publicizing information about the suppliers of execution drugs and that openness
    
    and debate are essential to the functioning of the criminal-justice system, including the
    
    implementation of the death penalty.
    
    
                                                  24
                                        Cite as 
    2016 Ark. 268
    
           Article 2, section 6 governs the rights of free speech and freedom of the press, and it
    
    is Arkansas’s equivalent to the First Amendment. To determine whether a First Amendment
    
    right of access attaches to a particular proceeding, courts consider “whether the place and
    
    process have historically been open to the press and general public” and “whether public
    
    access plays a significant positive role in the functioning of the particular process in
    
    question.” Press-Enter. Co. v. Superior Court, 
    478 U.S. 1
    , 8 (1986). This right of access is
    
    not absolute. Id.
    
           From our review of the record, even if it may be said that there is a tradition in
    
    Arkansas of identifying the supplier of drugs used in executions, we cannot conclude that
    
    disclosure is compelled under the second prong of the test. As revealed in the decisions of
    
    Baze and Glossip, it has become a matter of common knowledge that states which sanction
    
    capital punishment have encountered increasing difficulties in obtaining drugs that are used
    
    to carry out the sentence of death by lethal injection. The undisputed affidavits of Kelley
    
    and Griffin reflect this predicament by demonstrating ADC’s own obstacles to acquiring the
    
    drugs and the unwillingness of suppliers to sell the drugs to a department of correction. As
    
    stated by Kelley, the current supplier of the drugs agreed to provide them only on the
    
    condition of anonymity, and that supplier is no longer inclined to sell the drugs to ADC.
    
    Griffin’s affidavit also shows that manufacturers prohibit distributors from selling the drugs
    
    to departments of correction. Given the practical realities of the situation, as borne out by
    
    this record, the circuit court erred in ruling that public access to the identity of the supplier
    
    of the three drugs ADC has obtained would positively enhance the functioning of
    
    executions in Arkansas. As has been well documented, disclosing the information is actually
    
    
                                                   25
                                         Cite as 
    2016 Ark. 268
    
    detrimental to the process. See Zink, 783 F.3d at 1113 (holding that public access to the
    
    identity of suppliers of drugs for lethal injections does not play a significant role in the
    
    functioning of the process “given that the practical effect of public disclosure would likely
    
    be frustration of the State’s ability to carry out a lawful sentence”). Disclosure is not required
    
    as a matter of free speech. See Wellons, supra; Phillips, supra.
    
              In concluding this issue, we observe that the General Assembly has declared, as a
    
    matter of public policy, that capital murder may be punishable by death. As recognized by
    
    the Supreme Court, a state “has a legitimate interest in carrying out a sentence of death in
    
    a timely manner.” Baze, 553 U.S. at 61. In aid of that process, the General Assembly has
    
    determined that there is a need for confidentiality.5 The question whether the enactment
    
    is wise or expedient is a matter exclusively for the General Assembly to decide. State v.
    
    Martin, 
    60 Ark. 353
    , 
    30 S.W. 421
     (1895). We reverse the circuit court’s ruling on this
    
    issue.6
    
    
    
              5
              Arkansas is not alone in adopting legislation imposing confidentiality requirements
    with regard to executions by lethal injection. See Ariz. Rev. Stat. Ann. § 13-757(C) (2010);
    Ga. Code Ann. § 42-5-36(d)(2) (2014); Fla. Stat. Ann. § 945.10(1)(g) (2014); La. Stat. Ann.
    § 15:570(G) (2014); Mo. Ann. Stat. § 546.720 (2007); Ohio Rev. Code Ann. § 2949.221
    (2015); Okla. Stat. Ann. tit. 22, § 1015 (2016); S.D. Codified Laws § 23A-27A-31.2 (2014);
    Tenn. Code Ann. § 10-7-504(h)(1) (2016). Courts that have addressed the issue have
    upheld the laws keeping the identity of the supplier of lethal-injection drugs confidential.
    Phillips, supra; Owens v. Hill, 
    758 S.E.2d 794
     (Ga. 2014); Bryan v. State, 
    753 So. 2d 1244
    (Fla. 2000); Evans, supra.
              6
            In connection with this point on appeal, the Prisoners filed a motion to strike the
    portion of ADC’s reply brief where it cited Houchins v. KQED, Inc., 
    438 U.S. 1
     (1978), to
    argue that the First Amendment does not provide a right of access to documents that are
    not open to the public generally. The Prisoners contend that this discussion should be
    struck because ADC is raising a new argument in the reply brief, a practice that is not
    countenanced by this court. See JurisDictionUSA, Inc. v. Loislaw.com, Inc., 
    357 Ark. 403
    , 83
    
                                                   26
                                        Cite as 
    2016 Ark. 268
    
                                             C. Contract Clause
    
           The contract clause is found in article 2, section 17 of the constitution, and it provides
    
    that “[n]o . . . law impairing the obligation of contracts shall ever be passed.” Under this
    
    point, ADC asserts that the Act does not offend the contract clause because the settlement
    
    agreement the Prisoners rely on to require disclosure of the identity of the supplier applied
    
    only to litigation that has since been concluded. Alternatively, it argues that the contract
    
    clause is not absolute and that the Act is a valid exercise of police power. ADC’s first
    
    argument has merit, which obviates the need for us to discuss the second contention.
    
           The settlement agreement at issue was entered into by ADC and the Prisoners, with
    
    the exception of Ledell Lee, in connection with their previous lawsuit, designated as Case
    
    No. 60-CV-13-1794, challenging the validity of Act 139 of 2013 and the lethal-injection
    
    protocol that had been adopted pursuant to that legislation in April 2013. The agreement
    
    also touched on a separate action, Case No. 60CV-13-1204, involving a FOIA request
    
    where the circuit court had ruled in favor of ADC but had not yet issued a final order.
    
    According to the settlement agreement, ADC had decided to not use the April 2013
    
    execution protocol, which rendered moot the Prisoners’ as-applied constitutional challenges
    
    to the protocol. As its purpose, the parties “agreed that the pending litigation between them
    
    can be streamlined in a manner that allows for the efficient litigation of their disputes.” To
    
    that end, the Prisoners agreed to amend their complaint concerning Act 139 to omit their
    
    
    S.W.3d 560 (2004) (observing that a new issue may not be raised for the first time in the
    appellant’s reply brief). Given our disposition of this issue, the motion to strike is moot.
    
    
    
    
                                                  27
                                        Cite as 
    2016 Ark. 268
    
    as-applied claims with the understanding from ADC that, “in the event that ADC adopts a
    
    new lethal-injection protocol before Case No. 60CV-13-1794 has been litigated to a final
    
    judgment,” the Prisoners had the right to amend their complaint to reassert as-applied
    
    challenges to the new lethal-injection procedure without ADC asserting the defense of res
    
    judicata. ADC also agreed to not raise that defense if the Prisoners initiated a separate lawsuit
    
    to present as-applied challenges to “ADC’s new protocol” on the ground “that such claims
    
    are barred because they should have been asserted in Case No. 60CV-13-1794 or Case No.
    
    60CV-13-1204.” The settlement agreement contained the following disclosure
    
    requirements:
    
                   The defendants agree that, within 10 business days after ADC adopts a
           new lethal-injection protocol, ADC will provide a copy of the new protocol
           to counsel for the plaintiffs. In addition, the defendants agree that, within 10
           days after they obtain possession of any drugs that ADC intends to use in a
           lethal-injection procedure, the defendants will notify the plaintiffs’ counsel
           that it has obtained the drugs and will specify which drugs have been obtained
           and disclose the packaging slips, package inserts, and box labels received from
           the supplier.
    
           In the case at bar, our object is to ascertain the intention of the parties, not from
    
    particular words or phrases, but from the entire context of the agreement. HPD, LLC v.
    
    Tetra Techs., Inc., 
    2012 Ark. 408
    , 
    424 S.W.3d 304
    . In interpreting the meaning of a contract,
    
    the first rule of construction is to give to the language the meaning that the parties intended.
    
    Asbury Auto. Used Car Ctr. v. Brosh, 
    2009 Ark. 111
    , 
    314 S.W.3d 275
    . To arrive at the
    
    intention of the parties to a contract, courts may acquaint themselves with the persons and
    
    circumstances and place themselves in the same situation as the parties who made the
    
    contract. Schnitt v. McKellar, 
    244 Ark. 377
    , 
    427 S.W.2d 202
     (1968).
    
    
    
    
                                                   28
                                        Cite as 
    2016 Ark. 268
    
           Judged by these standards, we hold that the settlement agreement does not require
    
    the disclosure of the identity of the supplier of the drugs used in the present lethal-injection
    
    protocol. The agreement reflects that the parties were in the midst of litigation concerning
    
    Act 139 of 2013 that allowed execution by means of a benzodiazepine followed by a
    
    barbiturate. It is clear that the disclosures required by the agreement with respect to any
    
    new protocol were tied to those adopted pursuant to the 2013 Act. The settlement
    
    agreement cannot be read as expressing an intention to create a continuing obligation on
    
    the part of ADC to make similar disclosures based on protocols adopted in accordance with
    
    not yet conceived future legislation. The circuit court’s interpretation of the agreement
    
    does not reflect the parties’ intent, so we must reverse its decision that the Act violated the
    
    contract clause. Because there is no existing contractual obligation of disclosure, the Act
    
    cannot offend the contract clause of the constitution.
    
                                        D. Publication Clause
    
           Article 19, section 12 of the Arkansas Constitution provides,
    
                    An accurate and detailed statement of the receipts and expenditures of
           the public money, the several amounts paid, to whom and on what account,
           shall, from time to time, be published as may be prescribed by law.
    
    In contesting the circuit court’s decision that the confidentiality requirement of the Act
    
    violates the constitution, ADC contends that the phrase, “as may be prescribed by law,”
    
    indicates that the provision is not self-executing and thus does not give rise to a private
    
    cause of action. Again emphasizing that phrase, it argues that the General Assembly has
    
    the authority to prescribe the time and the means of disclosure.
    
    
    
    
                                                  29
                                        Cite as 
    2016 Ark. 268
    
           This court reviews a circuit court’s interpretation of a constitutional provision de
    
    novo. City of Fayetteville v. Wash. Cty., 
    369 Ark. 455
    , 
    255 S.W.3d 844
     (2007). We are not
    
    bound by a circuit court’s decision, but in the absence of a showing that the circuit court
    
    erred in its interpretation of the law, that interpretation will be accepted on appeal. Kimbrell
    
    v. McCleskey, 
    2012 Ark. 443
    , 
    424 S.W.3d 844
    . Language of a constitutional provision that
    
    is plain and unambiguous must be given its obvious and common meaning. Smith v. Wright,
    
    
    2015 Ark. 189
    , 
    461 S.W.3d 687
    . Neither rules of construction nor rules of interpretation
    
    may be used to defeat the clear and certain meaning of a constitutional provision. Richardson
    
    v. Martin, 
    2014 Ark. 429
    , 
    444 S.W.3d 855
    .
    
           In Griffin v. Rhoton, 
    85 Ark. 89
    , 95, 
    107 S.W. 380
    , 382 (1907), this court established
    
    the general rules for determining whether provisions of the constitution are self-executing:
    
            A constitutional provision may be said to be self-executing if it supplies a
           sufficient rule, by means of which the right given may be enjoyed and
           protected, or the duty imposed may be enforced; and it is not self–executing
           when it merely indicates principles, without laying down rules by means of
           which those principles may be given the force of law.
                   Cooley’s Const. Lim. (7th Ed.) p. 1121. The same learned author in
           further comment on the subject says: But, although none of the provisions of
           a constitution are to be looked upon as immaterial or merely advisory, there
           are some which, from the nature of the case, are as incapable of compulsory
           enforcement as are directory provisions in general. The reason is that, while
           the purpose may be to establish rights or to impose duties, they do not in and
           of themselves constitute a sufficient rule by means of which such right may
           be protected or such duty enforced. In such cases, before the constitutional
           provision can be made effectual, supplemental legislation must be had, and
           the provision may be in its nature mandatory to the Legislature to enact the
           needful legislation, though back of it there lies no authority to enforce the
           command.
    
    In Cumnock v. City of Little Rock, 
    168 Ark. 777
    , 
    271 S.W.2d 466
     (1925), we added that the
    
    question in every case is whether the language of the constitutional provision is addressed
    
    
                                                  30
                                        Cite as 
    2016 Ark. 268
    
    to the court or to the General Assembly, meaning whether the provision was intended as a
    
    present enactment, complete in itself as definitive legislation, or whether it contemplates
    
    subsequent legislation to carry it into effect. If there is language indicating that the subject
    
    is referred to the General Assembly, the provision is not construed as self-executing.
    
    Cumnock, supra. In Griffin, supra, we held that the framers did not intend the provision
    
    under consideration to be self-executing because it contained the phrase “as shall hereafter
    
    be directed by appropriate legislation.” Accordingly, we also held that a citizen and taxpayer
    
    did not have a legal right to enforce obedience to the provision.
    
           We take this opportunity to develop our limited case law concerning article 19,
    
    section 12. This court has said that the disclosure requirement is limited to expenditures.
    
    Snyder v. Martin, 
    305 Ark. 128
    , 
    806 S.W.2d 358
     (1991). We also have held that the
    
    provision authorized the General Assembly to enact the Publicity Act of 1914, which
    
    provided for the publication of laws, reports, and miscellaneous matters, including claims
    
    allowed against counties. See Clark v. Hambleton, 
    235 Ark. 467
    , 
    360 S.W.2d 486
     (1962);
    
    Jeffery v. Trevathan, 
    215 Ark. 311
    , 
    220 S.W.2d 412
     (1949). Thus, there is no doubt that the
    
    General Assembly has the authority to pass laws to implement this constitutional provision.
    
    The phrase “as may be prescribed by law” supports this conclusion, and under the authorities
    
    cited above, this language also indicates that the provision is not self-executing.
    
           Article 19, section 12 states that expenditures of public money, the amounts paid, to
    
    whom an expenditure is paid, and on what account “shall” be published “from time to
    
    time” “as may be prescribed by law.” It is undisputed that an expenditure of public money
    
    was made for the purchase of the drugs to be used in executions. The issue is whether the
    
    
                                                  31
                                        Cite as 
    2016 Ark. 268
    
    General Assembly has the authority to direct the circumstances under which the information
    
    is to be revealed. In our view, the constitution left it to the General Assembly to determine
    
    the time and the manner for the disclosure of public expenditures. In this instance, the
    
    General Assembly discharged its obligation in a manner that is consistent with the
    
    constitution. In adopting this legislation, it did not completely shield the identity of the
    
    supplier from disclosure. Instead, the General Assembly determined that any disclosure is
    
    to be made by the ADC in litigation on the condition that it first apply for a protective
    
    order. As a matter of general principle, we have recognized that the General Assembly,
    
    unless restricted by the constitution, has the full and plenary powers to adopt such policies
    
    and prescribe the duties that it demands of officers carrying out such policies when it is
    
    deemed best for the peace and welfare of the people. Campbell v. Ark. State Hosp., 
    228 Ark. 205
    , 
    306 S.W.2d 313
     (1957). Here, the constitution granted the power to the General
    
    Assembly to determine the time and means by which article 19, section 12 is to be
    
    implemented. Consequently, the Act does not offend the constitution.
    
           Reversed and dismissed; motion to strike moot.7
    
           WYNNE, J., concurs in part; dissents in part.
    
           DANIELSON and HART, JJ., dissent.
    
    
    
    
           7
              Under the guise of Arkansas Supreme Court Rule 5-1(j), the parties have favored
    us with a series of what can only be described as letter briefs. We do not condone this
    practice. Although the rule requires a litigant to furnish this court and opposing counsel
    the citation to a case that will be referred to at oral argument that was not cited in his or her
    brief, it does not permit parties to present argument along with the citation.
    
    
                                                   32
                                        Cite as 
    2016 Ark. 268
    
           ROBIN F. WYNNE, Justice, concurring in part and dissenting in part. I
    
    believe that appellees satisfied their burden at this stage with regard to their claim that the
    
    method of execution set forth in Act 1096 of 2015 substantively violates the Arkansas
    
    Constitution’s prohibition of cruel or unusual punishment. I further believe that portions
    
    of Act 1096 violate article 19, § 12 of the Arkansas Constitution. Accordingly, I concur in
    
    part and dissent in part.
    
           The majority’s conclusion that appellees failed to satisfy their burden at this stage
    
    regarding the second prong of the test announced in Glossip v. Gross, __ U.S. __, 
    135 S. Ct. 2726
     (2015), is mistaken. The majority concludes that appellees failed to present facts
    
    sufficient create a question of fact regarding whether the risk posed by the challenged
    
    method of execution is substantial when compared to known and available alternative
    
    methods of execution. Appellees have created a triable issue as to the second prong of the
    
    Glossip test. They have laid out several different alternatives that they contend carry a
    
    reduced risk of severe pain when compared to the challenged method of execution. They
    
    have further produced evidence that the methods are available and that they carry a reduced
    
    risk in comparison with the method contained in Act 1096. Appellants might be mistaken
    
    in their assertions, but that issue is not before us at this stage in the proceedings. I would
    
    remand the matter to the circuit court for further proceedings on appellees’ substantive
    
    challenge to the lethal-injection protocol laid out in Act 1096.
    
           The majority’s analysis of whether of the confidentiality requirements of Act 1096
    
    violate article 19, § 12 of the Arkansas Constitution is likewise flawed. As the majority
    
    notes, we stated in Griffin v. Rhoton, 
    85 Ark. 89
    , 95, 
    107 S.W. 380
    , 382 (1907), that “[a]
    
    
                                                  33
                                         Cite as 
    2016 Ark. 268
    
    constitutional provision may be said to be self-executing if it supplies a sufficient rule, by
    
    means of which the right given may be enjoyed and protected, or the duty imposed may be
    
    enforced; and it is not self-executing when it merely indicates principles, without laying
    
    down rules by means of which those principles may be given the force of law.” Under this
    
    test, article 19, § 12 is self-executing. Far from merely indicating principles, the provision
    
    clearly states exactly what information is to be given to the public. The only role given to
    
    the General Assembly is to decide how to make the information public. One thing that the
    
    General Assembly may not do is decide whether to make the information public. This is
    
    exactly what the nondisclosure provisions of the Act do, and the majority has erroneously
    
    chosen to legitimize that overreach of authority by the General Assembly.
    
           The majority further errs by holding that subsection (i)(3) of Act 1096, which allows
    
    the Arkansas Department of Correction to disclose the information after obtaining a
    
    protective order, brings the nondisclosure provisions within the legislature’s authority to
    
    determine the time and manner of disclosure. However, article 19, § 12 expressly requires
    
    that the information be published. To publish something is to declare it publicly or make it
    
    generally known. Webster’s Third New International Dictionary 1837 (2002). Essentially, the
    
    majority is saying that a requirement for certain information to be publicly declared is
    
    satisfied if a state agency first gets an order prohibiting the information from being made public.
    
    That makes absolutely no sense whatsoever. Portions of Act 1096 clearly violate article 19,
    
    § 12 of the Arkansas Constitution. I would hold those subsections of the Act to be
    
    unconstitutional on that basis.
    
           For these reasons I concur in part and dissent in part.
    
    
                                                    34
                                        Cite as 
    2016 Ark. 268
    
           PAUL E. DANIELSON, Justice, dissenting. I respectfully dissent. This court lacks
    
    jurisdiction to hear this appeal because there was no specific ruling on the issue of sovereign
    
    immunity. Arkansas Rule of Appellate Procedure– Civil 2(a)(10) (2015) permits an appeal
    
    from an interlocutory order denying a motion to dismiss based on the defense of sovereign
    
    immunity. See Ark. Lottery Comm’n v. Alpha Mktg., 
    2012 Ark. 23
    , 
    386 S.W.3d 400
    .
    
    However, before an interlocutory appeal may be pursued from the denial of a motion to
    
    dismiss on the ground of sovereign immunity, we must have in place an order denying the
    
    motion to dismiss on that basis. Id.
    
           Here, the ADC filed an interlocutory appeal from the circuit court’s order dated
    
    December 3, 2015. Therefore, this court’s review is limited to the December 3, 2015 order
    
    in determining whether the circuit court ruled on sovereign immunity. In that order, the
    
    circuit court makes very specific rulings on each claim, yet makes no ruling on sovereign
    
    immunity.
    
           Contrary to the assertion of the majority, Alpha Marketing does apply in this case.
    
    This court has been clear that it will not presume a ruling from the circuit court’s silence,
    
    as we have held that we will not review a matter on which the circuit court has not ruled,
    
    “and a ruling should not be presumed.” Alpha Mktg., 
    2012 Ark. 23
    , at 7, 386 S.W.3d at 404
    
    (emphasis in original). As such, this court lacks jurisdiction to hear the instant appeal.
    
    Accordingly, I would dismiss this appeal without prejudice.
    
           JOSEPHINE LINKER HART, Justice, dissenting. I respectfully dissent. First, the
    
    majority addresses issues not preserved for appellate review. Arkansas Code Annotated
    
    section 5-4-617(i)(2)(B) (Supp. 2015) provides that the Arkansas Department of Correction
    
    
                                                  35
                                        Cite as 
    2016 Ark. 268
    
    (ADC) “shall keep confidential all information that may identify or lead to the identification
    
    of . . . [t]he entities and persons who compound, test, sell, or supply the drug or drugs . . .
    
    , medical supplies, or medical equipment for the execution process.” Arkansas Code
    
    Annotated section 5-4-617(i)(3) provides that the ADC “shall not disclose the information
    
    covered under this subsection in litigation without first applying to the court for a protective
    
    order regarding the information under this subsection.” Thus, according to the statute, there
    
    is not an absolute bar to the disclosure of the information by the ADC in litigation. Rather,
    
    before the information is to be disclosed in litigation, the onus is on the ADC to seek a
    
    protective order.
    
                    In keeping with the statute, appellants moved for a protective order to shield
    
    them from having to disclose the information. In its order filed December 3, 2015, the
    
    circuit court denied the motion for a protective order. On appeal, appellants challenge the
    
    circuit court’s rulings that certain constitutional provisions require disclosure of the
    
    information. In their brief, appellants address constitutional claims relating to the contracts
    
    clause, freedom of speech and the press, procedural due process, and publication of public
    
    expenditures.
    
                    Appellants, however, did not present as a separate point on appeal an
    
    argument challenging the circuit court’s specific ruling denying their motion for a protective
    
    order. To the extent that any of the claims raised in this interlocutory appeal were based on
    
    an implied ruling on sovereign immunity, the request for a protective order was also based
    
    on a claim of sovereign immunity and thus appealable on an interlocutory basis.
    
    Furthermore, an order denying a motion for a protective order may be appealed on an
    
    
                                                  36
                                        Cite as 
    2016 Ark. 268
    
    interlocutory basis. Ark. R. App. P.–Civ. 2(f)(1).1 Because they do not challenge on appeal
    
    the circuit court’s denial of the protective order, appellants have abandoned any challenge
    
    relating to the circuit court’s denial. Issues raised below but not argued on appeal are
    
    considered abandoned. See, e.g., State v. Johnson, 
    374 Ark. 100
    , 102 n.1, 
    286 S.W.3d 129
    ,
    
    131 n.1 (2008). Essentially, by not addressing the issue, appellants have conceded the
    
    correctness of the court’s order denying the motion for a protective order.
    
                  Furthermore, even though the circuit court made findings that disclosure was
    
    constitutionally required, the circuit court’s denial of appellants’ motion for a protective
    
    order served as an alternative basis for requiring disclosure. When a circuit court bases its
    
    decision on more than one independent ground—such as here, where the circuit court ruled
    
    on appellants’ constitutional claims, as well as appellants’ motion for a protective order and
    
    required disclosure of the information—and an appellant fails to challenge all those grounds
    
    on appeal—such as here, where appellants addressed only the circuit court’s constitutional
    
    rulings—we will affirm without addressing any of the grounds. Evangelical Lutheran Good
    
    Samaritan Soc’y v. Kolesar, 
    2014 Ark. 279
    , at 6. Thus, I would affirm the circuit court’s
    
    decision to require the disclosure without addressing any of its rulings related to disclosure
    
    of the information. Moreover, if, as the majority implies, the issue was not appealable, then
    
    it is a question to be resolved by this court in a future appeal. Thus, under the majority’s
    
    analysis, dismissal is premature.
    
    
    
    
    1
    Appellees made no effort to comply with the rule.
    
    
                                                 37
                                         Cite as 
    2016 Ark. 268
    
                   Second, the majority holds that the circuit court erred in concluding that
    
    appellees pleaded sufficient facts as to the alternative methods of execution. In reviewing
    
    the trial court’s decision on a motion to dismiss under Ark. R. Civ. P. 12(b)(6), this court
    
    treats the facts alleged in the complaint as true and views them in a light most favorable to
    
    the party who filed the complaint. Waller v. Kelley, 
    2016 Ark. 252
    . In testing the sufficiency
    
    of the complaint on a motion to dismiss, all reasonable inferences must be resolved in favor
    
    of the complaint, and the pleadings are to be liberally construed. Id. The majority does not
    
    treat the facts alleged as true or liberally construe the complaint, and it considers materials
    
    outside of the pleadings. Furthermore, the appellate posture of this case is unusual in that
    
    Rule 2(a)(10) of the Arkansas Rules of Appellate Procedure–Civil permits an appeal from
    
    an interlocutory “order denying a motion to dismiss . . . based on the defense of sovereign
    
    immunity.” Rule 12(j) of the Arkansas Rules of Civil Procedure provides, “Attorneys will
    
    be notified of action taken by the court under this rule, and, if appropriate, the court will
    
    designate a certain number of days in which a party is to be given to plead further. When a
    
    dismissal pursuant to Rule 12(b)(6) is granted because the complaint is determined to be
    
    factually insufficient, then it is improper for such a dismissal to be granted with prejudice
    
    and without leave to plead further pursuant to Rule 12(j). Ballard Grp., Inc. v. BP Lubricants
    
    USA, Inc., 
    2014 Ark. 276
    , at 19, 
    436 S.W.3d 445
    , 456. Because the majority dismisses for
    
    failure to plead sufficient facts, I submit that the dismissal is without prejudice, and appellees
    
    may plead further.
    
                   Third, the majority disregards a critical distinction between the state and the
    
    federal constitution. Article 2, section 9 of this state’s constitution prohibits the infliction of
    
    
                                                    38
                                         Cite as 
    2016 Ark. 268
    
    “cruel or unusual punishments.” In contrast, the Eighth Amendment to the federal
    
    constitution prohibits the infliction of “cruel and unusual punishments.” Appellees ask this
    
    court to consider the distinction between the words “and” and “or” and to reject the two-
    
    prong test that the United States Supreme Court has developed in its cases interpreting the
    
    Eighth Amendment. The majority rejects this notion, holding that “[w]e are not convinced
    
    that the slight variation in phraseology between the two constitutions denotes a substantive
    
    or conceptual difference in the two provisions that would compel us to disregard any part
    
    of the test governing a challenge to the method of execution.” However, as one treatise has
    
    noted, “The conjunctions and and or are two of the elemental words in the English language.
    
    . . . [A]nd combines items while or creates alternatives. Competent users of the language
    
    rarely hesitate over their meaning.” Antonin Scalia & Bryan A. Garner, Reading Law: The
    
    Interpretation of Legal Texts 116 (2012). The distinction is dismissed by the majority, and this
    
    case serves as an unfortunate precedent for future cases involving the interpretation of
    
    statutes, contracts, or the state constitution.
    
           Leslie Rutledge, Att’y Gen., by: Lee P. Rudofsky, Solicitor General, and Jennifer L.
    
    Merritt, Ass’t Att’y Gen., for appellants.
    
           John C. Williams, Federal Public Defender Office; and Jeff Rosenzweig, for appellees.
    
    
    
    
                                                      39