Stephen Michael West v. Derrick D. Schofield , 460 S.W.3d 113 ( 2015 )

IN THE SUPREME COURT OF TENNESSEE
AT NASHVILLE
December 18, 2014 Session
STEPHEN MICHAEL WEST, et al. v. DERRICK D. SCHOFIELD, et al.
Appeal by Permission from the Court of Appeals, Middle Section
Chancery Court for Davidson County
No. 13-1627-I Claudia C. Bonnyman, Chancellor
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No. M2014-00320-SC-R11-CV - Filed March 10, 2015
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We granted the State of Tennessee permission to appeal from the Court of Appeals’ decision
on interlocutory appeal in which the intermediate appellate court affirmed the trial court’s
order compelling discovery in this declaratory judgment action. The Plaintiffs are seeking
a declaration that the lethal injection protocol in place for the execution of convicted criminal
defendants sentenced to death is unconstitutional. In conjunction with pursuing their claim,
the Plaintiffs sought to discover the identity of persons involved in facilitating and carrying
out executions. Over the State’s objection, the trial court ordered the State to provide these
identities to the Plaintiffs, and the Court of Appeals affirmed the trial court’s order. Upon
due consideration, we reverse and remand this matter for further proceedings consistent with
this Opinion and in compliance with the timelines set forth in the judgment order filed
contemporaneously with this Opinion.
Tenn. R. App. P. 11 Appeal by Permission;
Judgment of the Court of Appeals Reversed;
Remanded
J EFFREY S. B IVINS, J., delivered the opinion of the Court, in which C ORNELIA A. C LARK and
H OLLY K IRBY, JJ., joined. S HARON G. L EE, C.J., concurred in results only. G ARY R. W ADE,
J., filed a separate opinion concurring in the judgment only.
Herbert H. Slatery III, Attorney General and Reporter; Andrée S. Blumstein, Solicitor
General; and Jennifer L. Smith, Deputy Attorney General, for the appellants, Derrick D.
Schofield, Wayne Carpenter, Tony Mays, Jason Woodall, Tony Parker, John Doe Physicians
1-100, John Doe Pharmacists 1-100, John Doe Medical Examiners 1-100, John Doe Medical
Personnel 1-100, and John Doe Executioners 1-100.
Stephen M. Kissinger and Susanne Bales, Assistant Federal Community Defenders,
Knoxville, Tennessee, for the appellees, Stephen Michael West, Nicholas Todd Sutton, and
David Earl Miller.
Kelley J. Henry, Supervisory Assistant Federal Public Defender, and Michael J. Passino,
Assistant Federal Public Defender, Nashville, Tennessee, for the intervening appellees, Abu-
Ali Abdur’Rahman, Donald R. Johnson, Donald Wayne Strouth, Charles Walton Wright, and
Edmund George Zagorski.
C. Gene Shiles, Jr., and William J. Rieder, Chattanooga, Tennessee, for the appellee, Billy
Ray Irick.
Kelly A. Gleason and Jonathan King, Assistant Post-Conviction Defenders, Nashville,
Tennessee, for the intervening appellee, Lee Hall, Jr.
OPINION
Factual and Procedural Background
On September 27, 2013, the Tennessee Department of Correction adopted a new lethal
injection protocol providing that inmates sentenced to death be executed by the injection of
a lethal dose of a single drug, pentobarbital (“the Protocol”). On November 20, 2013,
Stephen Michael West, Billy Ray Irick, Nicholas Todd Sutton, and David Earl Miller
(“Plaintiffs”), all of whom have been sentenced to the death penalty for committing first
degree murder, filed a declaratory judgment action in the Chancery Court for Davidson
County, Tennessee, against: Derrick D. Schofield in his official capacity as Tennessee’s
Commissioner of Correction; Wayne Carpenter, in his official capacity as Warden of
Riverbend Maximum Security Institution; Tony Mays, in his official capacity as Deputy
Warden of Riverbend Maximum Security Institution; Jason Woodall, in his official capacity
as Deputy Commissioner of Operations; Tony Parker, in his official capacity as Assistant
Commissioner of Prisons; John Doe Physicians 1-100; John Doe Pharmacists 1-100; John
Doe Medical Examiners 1-100; John Doe Medical Personnel 1-100; and John Doe
Executioners 1-100 (“Defendants”). Also on November 20, 2013, Edmund Zagorski, Abu-
Ali Abdur’Rahman, Charles Wright, and Don Johnson, all condemned inmates, moved to
intervene as plaintiffs, and their motion was granted. These intervening plaintiffs filed a
complaint for declaratory judgment on November 20, 2013, which they asserted “raises
identical issues presented by the original complaint.” On November 21, 2013, Lee Hall, a
condemned inmate, moved to intervene as plaintiff, and his motion was granted. Hall filed
a complaint for declaratory judgment on November 21, 2013, which he asserted “raises
identical issues presented by the original complaint.” On January 2, 2014, Donald Strouth,
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a condemned inmate, moved to intervene as plaintiff, and his motion was granted. Strouth
filed a complaint for declaratory judgment on January 2, 2014, which he asserted “raises
identical issues presented by the original complaint.”
The Plaintiffs filed an amended complaint on November 25, 2013 (“the Complaint”).1
The Plaintiffs are seeking declarations that the Protocol violates the Eighth and Fourteenth
Amendments to the United States Constitution and article I, section 16 of the Tennessee
Constitution. The Eighth Amendment to the United States Constitution and article I, section
16 of the Tennessee Constitution prohibit the infliction of cruel and unusual punishment.
Because capital punishment is constitutional, “[i]t necessarily follows that there must be a
means of carrying it out.” Baze v. Rees, 553 U.S. 35, 47 (2008). “[T]he Constitution does
not demand the avoidance of all risk of pain in carrying out executions.” Id. Instead, to
establish an Eighth Amendment violation, “the conditions presenting the risk must be ‘sure
or very likely to cause serious illness and needless suffering,’ and give rise to ‘sufficiently
imminent dangers.’” Id. at 50 (quoting Helling v. McKinney, 509 U.S. 25, 33, 34-35 (1993))
(emphases in Baze). “[T]o prevail on such a claim there must be a ‘substantial risk of serious
harm,’ an ‘objectively intolerable risk of harm’ that prevents prison officials from pleading
that they were ‘subjectively blameless for purposes of the Eighth Amendment.’” Id. (quoting
Farmer v. Brennan, 511 U.S. 825, 842, 846 and n.9 (1994)).2
Specifically, the Plaintiffs allege that the Protocol: (1) “creates a substantial risk of
unnecessary pain when carried out exactly in the manner prescribed”; (2) “will require the
use of compounded pentobarbital”; (3) “fails to provide adequate qualifications and training
1
Twenty-six additional death row inmates subsequently have been permitted to intervene.
2
We note that, in an order filed on November 29, 2010, in a prior lawsuit by Plaintiff West
challenging the State’s previous three-drug lethal injection protocol, we explicitly stated as follows:
In any proceedings on remand, the standards enunciated in the plurality opinion in
Baze v. Rees, 553 U.S. 35, 51 (2008)[,] apply. The burden is on Mr. West to prove that the
revised protocol creates an “objectively intolerable risk of harm that qualifies as cruel and
unusual.” Baze v. Rees, 553 U.S. at [50]. In order to carry this heavy burden, he must
demonstrate that the revised protocol imposes a substantial risk of serious harm, and he must
either propose an alternative method of execution that is feasible, readily implemented, and
which significantly reduces the substantial risk of severe pain, Baze v. Rees, 553 U.S. at 52-
53, or demonstrate that no lethal injection protocol can significantly reduce the substantial
risk of severe pain.
State v. Stephen Michael West, No. M1987-000130-SC-DPE-DD, at 3 (Tenn. Nov. 29, 2010) (“the West
Order”); see also Wellons v. Comm’r, Ga. Dep’t of Corr., 754 F.3d 1260, 1266 (11th Cir. 2014); Mann v.
Palmer, 713 F.3d 1306, 1315 (11th Cir. 2013).
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of personnel to minimize the known risks involved in execution by lethal injection”; (4)
“fails to require and include, and fails to comport with, those accepted medical practices
necessary to minimize the known risks involved in execution by lethal injection”; and (5)
“violates federal and state drug laws and the United States and Tennessee Constitutions.”
The Complaint also alleges that “Tennessee’s secrecy statute, Tennessee Code Annotated
[section] 10-7-504(h)(1), violates Plaintiffs’ federal and state constitutional rights and 42
U.S.C. § 1983.”
In their prayer for relief, the Plaintiffs also seek declarations that “any attempt by
Defendants to carry out Plaintiffs’ executions, and/or the carrying out of such executions,
using the Lethal Injection Protocol will violate 42 U.S.C. § 1983”; that the Protocol is “on
its face and as applied to Plaintiffs null and void and/or unconstitutional” under the federal
and state constitutions; that the Protocol “causes, requires or constitutes violations of”
various state and federal statutes; that the Protocol “is void as contrary to public policy”; and
that the Protocol “is void as constituting an unlawful civil conspiracy.”
On November 26, 2013, the Plaintiffs served their First Set of Interrogatories on the
named Defendants and the State Attorney General’s Office in which the Plaintiffs asked the
Defendants to identify each John Doe Defendant3 and, if such Defendant was not employed
by the State, to “identify the business address where service of the summons may be had.”
During a scheduling conference on December 2, 2013, the Defendants indicated a possible
objection to the interrogatories but agreed that a protective order regarding the identities of
the John Doe Defendants should be entered “regardless of [the] interrogatory responses.”
In their December 4, 2013 written response to the interrogatories, the Defendants objected
to each of the Plaintiffs’ requests for the identities of the John Doe Defendants, asserting that
(1) the identities of the individuals described were neither relevant nor material to the
Plaintiffs’ ability to challenge the Protocol used in executing a sentence of death and (2) their
identities specifically were deemed confidential under Tennessee Code Annotated section
10-7-504(h), and, therefore, exempt from discovery under Tennessee Rule of Civil Procedure
26.02(1). The Defendants also asserted that the State’s interest in maintaining the
confidentiality of persons directly involved in the execution process outweighed the
Plaintiffs’ need for the discovery requested. Without conceding relevance, the Defendants
offered to identify each “John Doe” by position and title and to provide a description of each
3
The record before us includes no request by the Plaintiffs for this information pursuant to the Public
Records Act, Tenn. Code Ann. §§ 10-7-101 to -702 (2012), and the instant lawsuit is not a petition for
enforcement of the Public Records Act, see id. § 10-7-505(a).
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person’s education, training, and employment, without disclosing personal, identifying
information.4
On that same day, the Defendants moved the trial court to adopt an Agreed Protective
Order, which provided: “The parties shall not reveal the identities of the ‘John Doe’
defendants except to the extent essential to conduct the proceedings at issue in this case.”
The order further stated: “The [D]efendants do not waive any protection, privilege or
defense afforded by Tenn. Code Ann. § 10-7-504(h) by agreement to this protective order.”
The order also provided that it was intended to provide a mechanism for the handling of
confidential information, but “[i]t shall not be deemed to be a waiver by any of the parties
of any objections as to admissibility, relevancy, materiality, or discoverability, or a waiver
of any right or protection otherwise afforded by the TENNESSEE RULES OF CIVIL
PROCEDURE relating to discovery or the TENNESSEE RULES OF EVIDENCE or
otherwise afforded by state law.” The trial court entered the protective order on December
5, 2013.
On December 13, 2013, the Plaintiffs filed a Motion to Compel Responses to
Plaintiffs’ First Set of Interrogatories seeking the John Doe Defendants’ identities. After
hearing argument, the trial court granted the Plaintiffs’ motion to compel discovery and
ordered the Defendants to provide:
[T]he identity and location of all John Doe defendants who had been scheduled
to participate, and/or had already participated in, the execution of Plaintiff
Billy Ray Irick that had been formerly . . . set for January 7, 2014, and/or all
persons who, as of that date, had agreed, or tentatively agreed, whether
formally or informally, to act in the capacity of those John Doe defendants
described in Plaintiffs’ First Set of Interrogatories.
In conjunction with issuing its order, the trial court stated the following during the hearing
on the Plaintiffs’ motion to compel:
The Public Records Act and the matters that the state legislature has decided
are sensitive are relevant to discovery because the Public Records Act and the
confidentiality provision that is found in that act and other statutes alert the
Court that the Court should consider a deviation from a very strongly-held
value, which is that every piece of paper that’s filed in the courts [is] public
4
In their written response to the Plaintiffs’ subsequent motion to compel, the Defendants also offered
to produce John Doe Defendants for screened depositions.
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record and that the courts of all the branches of government [are] transparent
so that people can see whether justice is being done.
And so that’s a very high value. However, where information is
sensitive, I usually find that the lawyers cooperate in protecting the discovery.
There’s been some cooperation here. The State obviously has concluded, I
think reasonably, that it should come forward and protect the identities of its
clients out of respect for their privacy and respect for the pressure under which
they may be functioning.
All that having been said, Rule 26 does state that the identity and
location of persons having knowledge of any discoverable matter is relevant
to the civil lawsuits that are filed in the courts of the state of Tennessee.
And so I’m finding that because there is a protective order and because
all of the lawyers are officers of the court, I am going to grant the motion to
compel, respectfully, because the persons whose identit[ies] [are] being sought
are parties in this case. There’s no motion to dismiss filed. And I understand
why there hasn’t been a motion to dismiss. I’m certainly not critical about
that. Answer has been filed on their behalf.
To the extent that the State – of course – now that I have granted the
motion to compel, I understand the State’s position that well, we don’t know
who is going to be involved in the executions in 2014. However, I think if I
find and direct the State to provide any lists of persons currently existing who
the State would contract with or choose or address in order to follow through
with the protocol that was scheduled for January. I mean, it seems like you’re
going to have that. If you don’t have that, then I think the State has to provide
the list of – either tell the [Plaintiffs] who is going to be involved and who was
going to be involved in the January execution scheduled. Mr. Irick, I think,
was scheduled to be executed in January, this month.
I think there is a way to address the unknown. There are a lot of things
we don’t know about what’s going to happen in 2014. But I think the State’s
attorneys have to make inquiry as the rules of discovery provide, make inquiry
and do the best they can to provide whatever identities you do have.
After the trial court granted the Plaintiffs’ motion to compel, the State sought and
obtained permission to pursue an interlocutory appeal. The Court of Appeals subsequently
affirmed the trial court’s order. See Stephen Michael West v. Derrick D. Schofield, No.
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M2014-00320-COA-R9-CV, 2014 WL 4815957, at *1 (Tenn. Ct. App. Sept. 29, 2014). The
State then sought this Court’s permission to appeal from the judgment of the Court of
Appeals, and we have granted that permission. For the reasons set forth below, we reverse
the judgment of the Court of Appeals and the trial court’s order granting the Plaintiffs’
motion to compel and remand this matter for further proceedings consistent with this
Opinion.
Analysis
Standard of Review
The applicable standard of review for pretrial discovery decisions is abuse of
discretion. Benton v. Snyder, 825 S.W.2d 409, 416 (Tenn. 1992). An abuse of discretion
occurs when the trial court applies incorrect legal standards, reaches an illogical conclusion,
bases its decision on a clearly erroneous assessment of the evidence, or employs reasoning
that causes an injustice to the complaining party. State v. Banks, 271 S.W.3d 90, 116 (Tenn.
2008).
Tennessee Rule of Civil Procedure 26.02(1)
We begin our analysis with the text of Tennessee Rule of Civil Procedure 26.02(1):
Parties may obtain discovery regarding any matter, not privileged, which is
relevant to the subject matter involved in the pending action, whether it relates
to the claim or defense of the party seeking discovery or to the claim or
defense of any other party, including . . . the identity and location of persons
having knowledge of any discoverable matter. It is not ground for objection
that the information sought will be inadmissible at the trial if the information
sought appears reasonably calculated to lead to the discovery of admissible
evidence.
Tenn. R. Civ. P. 26.02(1) (emphases added). Thus, before a trial court may order matters
divulged under this Rule, it must make a threshold determination that the matters sought are
(1) not privileged and (2) relevant to the subject matter of the lawsuit.
In this case, the trial court, by granting the Plaintiffs’ motion to compel, clearly
concluded that the identities of the John Doe Defendants were not privileged. Furthermore,
it concluded that their identities were relevant under Rule 26.02, stating that “the identity and
location of persons having knowledge of any discoverable matter is relevant” and that “the
persons whose identit[ies] [are] being sought are parties in this case.” On appeal, the Court
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of Appeals concluded that Tennessee Code Annotated section 10-7-504(h) did not constitute
a privilege protecting the identities of the John Doe Defendants. Stephen Michael West,
2014 WL 4815957, at *10. The Court of Appeals also found “no common-law privilege
applicable.” Id. at *11 n.4. The Court of Appeals further concluded that the identities of the
John Doe Defendants were relevant because they were admissible or reasonably would lead
to admissible evidence. Id. at *5. We will begin our discussion with the first threshold issue
of privilege.
Privilege
The State urges us to adopt a common-law privilege protecting the identities of those
individuals involved in the execution of condemned inmates from disclosure applicable in
civil discovery. The State grounds its argument in large part on the public policy against the
disclosure of the identities of these persons made explicit by our legislature in the Public
Records Act, specifically Tennessee Code Annotated section 10-7-504(h). This
confidentiality provision provides as follows:
Notwithstanding any other law to the contrary, those parts of the record
identifying an individual or entity as a person or entity who or that has been or
may in the future be directly involved in the process of executing a sentence
of death shall be treated as confidential and shall not be open to public
inspection.
Tenn. Code Ann. § 10-7-504(h)(1) (Supp. 2014).
The Plaintiffs have not sought the identities of the John Doe Defendants pursuant to
a request under the Public Records Act. Nevertheless, the State argues that the General
Assembly’s clear intent to protect the confidentiality of these persons should influence our
decision regarding whether their identities are entitled to protection under a common-law
privilege. See, e.g., KD ex rel. Dieffenbach v. United States, 715 F. Supp. 2d 587, 592-97
(D. Del. 2010) (adopting common-law privilege regarding peer review documents based, in
part, on congressional legislative history of the Patient Safety Quality Improvement Act of
2005); Francis v. United States, No. 09 Civ. 4004(GBD)(KNF), 2011 WL 2224509, at *6
(S.D.N.Y. May 31, 2011) (same).
We think it worthy of note that the legislative history of the confidentiality provision
includes the following comments by the sponsor of the legislation, Senator Mark Norris:
This deals with an additional exemption to the public records act as it
relates to, of all things, executions in Tennessee. . . . The rationale behind the
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execution exemption, if we can call it that, is that involvement in carrying out
a death sentence in accordance with a valid court order and in accordance with
state law shouldn’t subject any person to retaliation by those who may disagree
with that law, particularly on this very volatile and sometimes divisive issue.
There was a Court of Appeals decision two years ago, the Ray case,
which interpreted our current statute more narrowly than we think is
appropriate. In fact, so narrowly as only applying to persons that it has
become difficult for the Department of Correction sometimes to obtain the
materials that are needed because those who would provide the materials are
afraid that they will be subject to some kind of exposure or liability.
What this bill does is to clarify that persons and entities, persons or
entities, have the same protections under the . . . exemptions from public
disclosure.
Hearing on S.B. 154, Before the State and Local Government Comm., 108th Gen. Assembly
(Apr. 2, 2013) (statement of Sen. Mark Norris).
In the case referenced by Senator Norris, the Court of Appeals considered a lawsuit
filed under the Public Records Act seeking the identities of the suppliers “of the substances
necessary to carry out lethal injection executions and the employees who procured those
substances.” Paul Bottei v. Gayle E. Ray, No. M2011-00087-COA-R3-CV, 2011 WL
4342652, at *1 (Tenn. Ct. App. Sept. 15, 2011). The Public Records Act in effect at the
relevant time provided, in pertinent part, as follows:
Notwithstanding any other law to the contrary, those parts of the record
identifying an individual as a person who has been or may in the future be
directly involved in the process of executing a sentence of death shall be
treated as confidential and shall not be open to public inspection. For the
purposes of this section “person” includes, but is not limited to, an employee
of the state who has training related to direct involvement in the process of
executing a sentence of death, a contractor or employee of a contractor, or a
volunteer who has direct involvement in the process of executing a sentence
of death. Records made confidential by this section include, but are not
limited to, records related to remuneration to a person in connection with such
person’s participation in or preparation for the execution of a sentence of
death.
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Tenn. Code Ann. § 10-7-504(h)(1) (Supp. 2010). The Court of Appeals framed the issue as
“whether the identities of persons or entities who supplied the lethal injection chemicals and
the state employees who procured the chemicals are to be kept confidential.” Paul Bottei,
2011 WL 4342652, at *3. The Court of Appeals concluded that subsection 504(h)(1) “only
protects the identities of those persons who are ‘directly involved’ in the execution, not the
identities of those who supplied the lethal injection chemicals to the state or the identities of
the state employees who procured the chemicals.” Id. Thus, the Court of Appeals agreed
with the trial court that the contested identities were not exempted from disclosure under the
Public Records Act. As a result, the contested identities were to be provided to the plaintiff.
Id. at *1.
Senator Norris’ comments clearly indicate that the legislature disagreed with the Court
of Appeals’ construction of subsection 504(h)(1) and that the legislature intended through
its amendment to the statute to protect the identities of all persons and entities participating
in the execution of a convicted murderer sentenced to death. See In re Baby, 447 S.W.3d
807, 823 (Tenn. 2014) (referring to legislative history in order to determine Tennessee’s
public policy concerning traditional surrogacy contracts); see also Bunarith Tep v. Southcoast
Hosp. Grp., Inc., No. 13-11887-LTS, 2014 WL 6873137, at *5 (D. Mass. Dec. 4, 2014)
(recognizing other federal courts’ reliance on congressional legislative history as indicative
of public policy favoring “broad protection for peer review work product in an effort to
improve patient safety and quality of care”); Rosengarten v. Downes, 802 A.2d 170, 179-82
(Conn. App. Ct. 2002) (relying on legislative history to determine that Connecticut’s public
policy was contrary to plaintiff’s claim that trial court had subject matter jurisdiction to
dissolve plaintiff’s foreign same-sex civil union).
Our legislature’s concern with protecting the identities of those involved with
executions also finds support in prior cases before Tennessee courts. Ricky Bell, a former
warden of the Tennessee prison in which death row inmates are housed, has stated in an
affidavit that the “identity of the execution team is kept confidential for the security of the
institution and for the safety of the staff members and their families.” Philip Workman v.
Donal Campbell, No. M2001-01445-COA-R3-CV, 2002 WL 869963, at *6 (Tenn. Ct. App.
May 7, 2002). The former warden explained, “[m]embers of the execution team and their
families may be subject to retaliation and harassment if their identities became known
throughout the institution or to the public at large.” Id.
Indeed, when the United States District Court for the Middle District of Tennessee
heard evidence from members of the execution team in an Eighth Amendment claim against
a different lethal injection protocol, their testimony was provided from behind a screen to
protect their anonymity. See Harbison v. Little, 511 F. Supp. 2d 872, 886 n.11 (M.D. Tenn.
2007), vacated on other grounds by Harbison v. Little, 571 F.3d 531, 539 (6th Cir. 2009).
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In further recognition of the need to protect the anonymity of those involved in the execution
process, the trial court in Harbison noted in its opinion that the witnesses “will not be
identified by name in this opinion pursuant to provisions in state law that protect their
identities.” Id.
Statutory and case law from other jurisdictions also have addressed the necessity of
protecting the identities of those involved in carrying out a death sentence. For instance, the
Georgia legislature has enacted a statute classifying all “identifying information” about “any
person or entity who participates in or administers the execution of a death sentence . . . [or]
that manufactures, supplies, compounds, or prescribes the drugs, medical supplies, or
medical equipment” used in an execution as a “confidential state secret” that is not subject
to disclosure. Ga. Code Ann. § 42-5-36(d) (effective July 1, 2013).
Subsequently, a condemned inmate sought sealed discovery of the identities of the
compounding pharmacy, the supply chain, and the manufacturers of any and all ingredients
used in the lethal drug compounded to execute him. See Owens v. Hill, 758 S.E.2d 794, 797
(Ga. 2014), cert. denied __ U.S. __, 135 S. Ct. 449 (Nov. 3, 2014). Rejecting the inmate’s
attempt “to turn the First Amendment into an Open Records Act for information relating to
executions,” id. at 805, the Georgia Supreme Court held that disclosure was not warranted.
Id. The Georgia court emphasized that the reasons supporting nondisclosure of the identities
of those involved in the execution of a death row inmate “are obvious, including avoiding
the risk of harassment or some other form of retaliation from persons related to the prisoners
or from others in the community who might disapprove of the execution as well as simply
offering those willing to participate whatever comfort or peace of mind that anonymity might
offer.” Id. The court continued:
Although the identity of the executioner who actually inflicts death upon the
prisoner is the most obvious party in need of such protection, we believe that
the same logic applies to the persons and entities involved in making the
preparations for the actual execution, including those involved in procuring the
execution drugs.
[Moreover], without the confidentiality offered to execution participants
by the statute, . . . there is a significant risk that persons and entities necessary
to the execution would become unwilling to participate.
Id.; see also Bryan v. State, 753 So. 2d 1244, 1250-51 (Fla. 2000) (upholding statutes
exempting execution-team identities from public disclosure in order to protect prison security
and personal safety); cf. In re Lombardi, 741 F.3d 888, 894 (8th Cir. 2014) (en banc)
(referring to an October 2013 letter “from a compounding pharmacy . . . that demanded the
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Texas Department of Criminal Justice return a supply of compounded pentobarbital sold for
use in executions, because of a ‘firestorm,’ including ‘constant inquiries from the press, the
hate mail and messages,’ that resulted from publication of the pharmacy’s identity”), cert.
denied __ U.S. __, 134 S. Ct. 1790 (Apr. 7, 2014).
The United States Court of Appeals for the Eleventh Circuit also has rejected a
condemned inmate’s argument that the state’s refusal to provide him with information about
his execution denied him his First Amendment right of access to governmental proceedings.
See Wellons v. Comm’r, Ga. Dep’t of Corr., 754 F.3d 1260, 1266-67 (11th Cir. 2014). In
affirming the district court’s denial of relief on this claim, the Eleventh Circuit concluded
that “[n]either the Fifth, Fourteenth, or First Amendments afford [the inmate] the broad right
‘to know where, how, and by whom the lethal injection drugs will be manufactured,’ [or] ‘the
qualifications of the person or persons who will manufacture the drugs, and who will place
the catheters.” Id. at 1267 (citing Lewis v. Casey, 518 U.S. 343, 354 (1996)), cert. denied
__ U.S. __, 134 S. Ct. 2838 (June 17, 2014); see also Sepulvado v. Jindal, 729 F.3d 413, 420
(5th Cir. 2013) (stating, “There is no violation of the Due Process Clause from the
uncertainty that Louisiana has imposed on Sepulvado by withholding the details of its
execution protocol”), cert. denied, __ U.S. __, 134 S. Ct. 1789 (Apr. 7, 2014); Williams v.
Hobbs, 658 F.3d 842, 852 (8th Cir. 2011) (holding that prisoners’ argument – that Arkansas
Method of Execution Act violated due process because its secrecy denied them an
opportunity to litigate their claim that protocol violated the Eighth Amendment – failed to
state a plausible due process access to the courts claim), cert. dismissed, __ U.S. __, 133 S.
Ct. 97 (Sept. 20, 2012).
Additionally, in Wood v. Ryan, 759 F.3d 1076 (9th Cir. 2014), the inmate argued that
withholding information about the drugs used to execute him and the qualifications of the
medical personnel denied him his First Amendment right of access to governmental
proceedings. Although the Ninth Circuit determined that Wood was entitled to this
information “subject to the restriction that the information provided will not give the means
by which the specific individuals can be identified,” id. at 1088, the United States Supreme
Court reversed that decision and granted the State’s application to vacate the judgment. Ryan
v. Wood, __ U.S. __, 135 S. Ct. 21 (mem) (July 22, 2014).
These authorities make clear that, not only has our legislature declared the public
policy of Tennessee to favor the anonymity of those involved in carrying out capital
punishment, but there is neither a statutory nor a constitutional barrier to the adoption of a
common-law privilege that would prohibit the disclosure in civil litigation of the identities
of those persons involved in the execution of condemned inmates. Nevertheless, we
conclude that it is unnecessary to adopt such a privilege in this case because, as set forth
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below, we hold that the John Doe Defendants’ identities are not relevant to the subject matter
of this action.
Relevance
We now turn to the second threshold issue of relevance. As set forth above, matters
discoverable pursuant to Rule 26.02(1) must be “relevant to the subject matter involved in
the pending action.” Tenn. R. Civ. P. 26.02(1). “The phrase ‘relevant to the subject matter
involved in the pending action’ is synonymous with ‘germane’ or ‘bearing on the subject
matter.’” Vythoulkas v. Vanderbilt Univ. Hosp., 693 S.W.2d 350, 359 (Tenn. Ct. App. 1985)
(citing Local 13, Detroit Newspaper Union v. N.L.R.B., 598 F.2d 267, 271 (D.C. Cir. 1979)),
superceded on other grounds by Tenn. R. Civ. P. 26.02(4)(B). Referring to the analogous
federal rule for guidance, this Court has recognized that “the subject matter of a case is not
limited to the merits of the case because ‘a variety of fact-oriented issues may arise during
litigation that are not related to the merits.’” Thomas v. Oldfield, 279 S.W.3d 259, 262
(Tenn. 2009) (quoting Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978)).5 For
instance, “information concerning the existence and extent of liability insurance coverage
may be relevant to settlement negotiations or trial preparation.” Id. (citations omitted).
Nevertheless, the information sought by a plaintiff through discovery must have some logical
connection to proving his case and/or obtaining his prayed-for relief.
As to the determination of what information is relevant for the purposes of Rule 26,
it is helpful to examine the definition of relevance set forth in our Rules of Evidence:
“‘Relevant evidence’ means evidence having any tendency to make the existence of any fact
that is of consequence to the determination of the action more probable or less probable than
it would be without the evidence.” Tenn. R. Evid. 401. But see Boyd v. Comdata Network,
Inc., 88 S.W.3d 203, 220 n.25 (Tenn. Ct. App. 2002) (noting that relevancy “is more loosely
construed during discovery than it is at trial”). Thus, the crucial issue in determining the
relevance of any particular information for the purposes of Rule 26, and therefore its
5
Our Court of Appeals has recognized that Federal Rule of Civil Procedure 26 was amended in 2000
and
now limits discovery without court approval to any non-privileged matter that is ‘relevant
to the claim or defense of any party.’ As a result of the 2000 amendment to Fed. R. Civ. P.
26(b)(1), discovery of matters relevant to the subject matter involved in the pending action
can only be obtained by court order upon the showing of good cause. Federal Practice and
Procedure § 2008, at 14-15 (Supp. 2001).
Boyd v. Comdata Network, Inc., 88 S.W.3d 203, 219 n.24 (Tenn. Ct. App. 2002). That is, the federal rules
have been amended to narrow the scope of discovery that is available without prior judicial approval.
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discoverability, is whether it has (or will lead to information which has) some probative value
as to the subject matter involved in the pending action. Accordingly, before compelling
discovery under Rule 26, a trial court first must determine what is included in “the subject
matter involved in the pending action.” Tenn. R. Civ. P. 26.02(1). In this action for
declaratory judgment, the subject matter is whether the Protocol violates the Plaintiffs’
federal and state constitutional rights. The Plaintiffs have brought a facial challenge to the
Protocol as written. Any relevance of the John Doe Defendants’ identities must be analyzed
in that specific context.
As to the facial challenge, we hold that the John Doe Defendants’ identities are not
relevant to a determination of the constitutionality of the Protocol as written. The Protocol
must be assessed on its face against the constitutional challenges levied by the Plaintiffs. The
identities of the persons who may facilitate or carry out the Protocol are not relevant to a
determination of whether the Protocol passes constitutional muster.
In determining that the sought-after identities were relevant, the Court of Appeals
focused on the provision in Rule 26 that “‘the identit[ies] . . . of persons having knowledge
of any discoverable matter’ are expressly discoverable.” Stephen Michael West, 2014 WL
4815957, at *5 (quoting Tenn. R. Civ. P. 26.02(1)). However, this clause of Rule 26
explicitly refers to knowledge of any discoverable matter, emphasizing the prerequisite that
such persons’ knowledge must concern the subject matter of the lawsuit.
Moreover, the Court of Appeals concluded that the identities of the John Doe
Defendants were relevant because, without their identities, the Plaintiffs “would be unable
to independently verify [their qualifications to participate in executing a condemned inmate]
or subject [those qualifications] to meaningful scrutiny.” Stephen Michael West, 2014 WL
4815957, at *5. This conclusion indicates that the Court of Appeals was analyzing the
relevance of the John Doe Defendants’ identities in terms of their qualifications to apply the
Protocol. However, the subject matter involved in the pending action is the constitutionality
of the Protocol itself. In short, this declaratory judgment action involves a facial challenge
to the constitutional validity of the Protocol as written, not as applied.6
The trial court likewise failed to consider the crucial distinction between the
Plaintiffs’ facial challenge to the Protocol as written and any challenges the Plaintiffs may
be attempting to raise to the Protocol as it hypothetically may be applied on some uncertain
date in the future by currently unidentifiable persons. Consequently, both courts below erred
in concluding that the John Doe Defendants’ identities were relevant and discoverable under
Rule 26. Cf. Abdur’Rahman v. Bredesen, 181 S.W.3d 292, 308 (Tenn. 2005) (rejecting
6
To the extent the Plaintiffs are attempting to raise claims about the Protocol as applied, see infra.
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inmate’s claim under the Administrative Procedures Act that the three-drug lethal injection
protocol violated the Eighth Amendment by causing unnecessary pain and suffering and
concluding, “[W]e cannot judge the lethal injection protocol based solely on speculation as
to problems or mistakes that might occur. We must instead examine the lethal injection
protocol as it exists today.”).
Other appellate courts, too, have concluded that the identities of those involved in
carrying out the death penalty are not relevant to lawsuits by condemned inmates seeking to
challenge their executions. For instance, in a case before the Eighth Circuit in which the
plaintiffs raised claims “[c]iting various constitutional, statutory, and regulatory provisions,”
the plaintiffs
challenge[d] the . . . authority [of the director of the Missouri Department of
Corrections] to use pharmacist-compounded pentobarbital in executions at all,
to carry out executions or modify the execution protocol during the pendency
of this litigation, to name any prescribing physician, pharmacist, or laboratory
to the execution team, and to shield the identities of execution team members
like the physician, pharmacist, and laboratory from the plaintiffs and the
public. They also complain[ed] that the execution team could use a central
venous line to insert a catheter when it is not clinically indicated (despite a
supervising official’s affidavit to the contrary), and that changes in the
execution protocol create uncertainty that enhance[d] anxiety for the prisoners.
Lombardi, 741 F.3d at 897. The Eighth Circuit held that, as to these claims, “the identities
of the prescribing physician, pharmacist, and laboratory are plainly not relevant” under
Federal Rule of Civil Procedure 26 because “the merits of these claims do not depend on the
identities of the physician, pharmacist, or laboratory.” Id. Accordingly, the federal Court
of Appeals granted the defendant’s requested writ of mandamus vacating the district court’s
orders requiring the disclosure of these identities. Id.7
Similarly, as noted above, the Georgia Supreme Court also has held that condemned
inmates are not entitled to the identities of those persons involved in the execution process.
See Hill, 758 S.E.2d at 805-06. Although Hill was in a different procedural posture than the
instant case because the trial court had granted an interlocutory injunction, which required,
7
But see In re LeBlanc, 559 Fed. Appx. 389, 391, 393 (5th Cir. 2014) (denying petition for writ of
mandamus seeking relief from district court’s order compelling Louisiana corrections officials to disclose
to death row inmate, pursuant to Federal Rule of Civil Procedure 26, “the identity of the [lethal injection]
drugs’ manufacturers and sources; the entities involved in supplying and testing those lethal chemicals; and
the healthcare professionals who will be personally and directly involved in the process of carrying out the
execution”) (limited precedential value pursuant to Fifth Circuit Local Rules).
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inter alia, that there was a substantial likelihood that the inmate would prevail on the merits
of his claim at trial, the Georgia Supreme Court correctly noted that “each of Hill’s
arguments ultimately centers on his claim that there is an unconstitutional risk that his
execution will amount to cruel and unusual punishment.” Id. at 801. Accordingly, the court
concluded that the inmate had “utterly failed to show with any specificity how learning the
identity of the specific compounding pharmacy involved in his case, even assuming that it
has had problems producing some medications in the past, would substantially improve his
factual showing in support of his underlying Eighth Amendment claim.” Id. at 802-03.
Stated otherwise, the identity of the compounding pharmacy was not relevant to the inmate’s
Eighth Amendment claim.
In this case, the trial court failed to conduct a relevance analysis based on the correct
legal standard. Accordingly, the trial court erred when it granted the Plaintiffs’ motion to
compel because the identities of the John Doe Defendants are not relevant to the subject
matter involved in the pending action. The Court of Appeals likewise utilized an incorrect
analysis in reviewing and affirming the trial court’s order compelling disclosure. We hold
that the Plaintiffs are not entitled to the disclosure of the John Doe Defendants’ identities
under Rule 26.02(1) because the John Doe Defendants’ identities are not relevant to a facial
challenge to the Protocol.
Balancing Test
Even if a trial court determines that information sought pursuant to Rule 26 is not
privileged and is relevant to the subject matter involved in the pending action, the trial court
further should balance the specific need for the information against the harm that could result
from disclosure of the information.
Weighing the propriety of a discovery request for sensitive information involves not
just determinations about privilege and relevance, but also the balancing of additional
considerations, including the “‘protection of privacy, property and secret matters,’” and the
“‘protection of parties or persons from annoyance, embarrassment, oppression, or undue
burden or expense.’” Johnson v. Nissan N. Am., Inc., 146 S.W.3d 600, 605 (Tenn. Ct. App.
2004) (quoting Cyc. Fed. Proc. § 25.34 (3d ed. 2001)); accord Atlanta Journal-Constitution
v. Jewell, 555 S.E.2d 175, 180 (Ga. Ct. App. 2001) (“Under general discovery rules
applicable to all parties, not only must a trial court determine whether the requested discovery
is relevant and material, but when parties seek discovery of unprivileged but sensitive
materials, the trial court must balance the requesting party’s specific need for the material
against the harm that would result by its disclosure.”); J.L.M. v. R.L.C., Jr., 132 S.W.3d 279,
287 (Mo. Ct. App. 2004) (recognizing that “[i]n addition to considering issues of whether the
information sought in discovery is relevant or subject to privilege, the trial court should
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consider the extent to which the information sought would invade the privacy of the
responding party or other individuals”).
The trial court failed to give adequate consideration to the State’s need to protect the
privacy of those involved in the execution of condemned inmates and its need to protect
those persons from annoyance, embarrassment, and/or oppression. By basing its ruling on
an erroneous assessment of the relevant factors, the trial court erred when it ordered the State
to disclose to the Plaintiffs the identities of the John Doe Defendants. See State v. Garrett,
331 S.W.3d 392, 401 (Tenn. 2011) (“This Court will also find an abuse of discretion when
the trial court has failed to consider the relevant factors provided by higher courts as
guidance for determining an issue.”). The Court of Appeals likewise failed to undertake this
crucial balancing of competing interests based on its erroneous conclusion that, “[w]ith
regard to discovery, a court engages in a balancing of the parties’ interests only after a
threshold determination that a privilege applies.” Stephen Michael West, 2014 WL 4815957,
at *11.
We must remain mindful that the United States Constitution and the Tennessee
Constitution both permit the execution of those convicted of first degree murder and
sentenced to capital punishment. See Baze, 553 U.S. at 47; State v. Henretta, 325 S.W.3d
112, 143 (Tenn. 2010). The State must have a means of carrying out these constitutional
sentences. Any constitutionally valid means of execution requires the participation of
numerous individuals (collectively, “the Participants”). Nevertheless, the execution of
condemned inmates remains a highly divisive and emotionally charged topic in Tennessee.
Revealing the identities of the Participants, even subject to a protective order, creates a risk
that the Participants would be deterred from performing their lawful duties.8
In sum, although we base our holding on principles of relevance, we also note that
neither of the courts below considered adequately the “protection of privacy, property, and
secret matters; and the protection of parties or persons from annoyance, embarrassment,
oppression, or undue burden or expense.” Johnson, 146 S.W.3d at 605.
8
We acknowledge that the trial court ordered that the John Doe Defendants’ identities be provided
subject to a protective order. Nevertheless, the sheer number of parties involved in this case – we note that
twenty-six more condemned inmates have intervened in this action – and the number of experts required to
consider the qualifications, etc., of the John Doe Defendants, create legitimate concerns that the John Doe
Defendants’ identities, even inadvertently, eventually will become public. Cf. Chester v. Wetzel, No. 1:08-
CV-1261, 2014 WL 6066146, at *4 (M.D. Penn. Nov. 13, 2014) (granting newspapers’ motion to intervene
to seek disclosure of sources of pharmacological agents to be used in execution after information was ordered
sealed).
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Allegations of Unconstitutionality “As Applied”
In addition to challenging the constitutionality of the Protocol as written, the Plaintiffs
also have raised some allegations asserting that the Protocol may be unconstitutional as
applied in the future. For instance, Count II alleges that “there is a substantial risk that
Defendants will use pentobarbital from a source, i.e. Defendant Pharmacist(s), that
compounds A[ctive] P[harmaceutical] I[ngredient]s obtained from non-FDA-approved
facilities” and that “[t]he substantial risk that the compounded pentobarbital will not be the
concentration required under the Lethal Injection Protocol due to the use of A[ctive]
P[harmaceutical] I[ngredient]s obtained from non-FDA-approved facilities increases the
already substantial risk that the Plaintiffs will not receive an adequate dose of pentobarbital
. . . thereby inflicting unnecessary pain.” Count IV alleges that there “is a substantial risk
that persons performing the medical procedures incorporated into the Lethal Injection
Protocol will be impaired during Plaintiffs’ executions.” The Complaint also contains a
specific prayer for relief from the Protocol “as applied to Plaintiffs.”
The Complaint asserts that the chancery court “has jurisdiction pursuant to Tenn.
Code Ann. §§ 29-14-103, 29-14-113.” Both of these provisions are included in our
Declaratory Judgments Act, Tenn. Code Ann. §§ 29-14-101 to -113 (2000, Supp. 2011, &
2012). Tennessee Code Annotated section 29-14-103 provides as follows:
Any person interested under a deed, will, written contract, or other
writings constituting a contract, or whose rights, status, or other legal relations
are affected by a statute, municipal ordinance, contract, or franchise, may have
determined any question of construction or validity arising under the
instrument, statute, ordinance, contract, or franchise and obtain a declaration
of rights, status or other legal relations thereunder.
Tenn. Code Ann. § 29-14-103 (2012). Section 113 provides that “[t]his chapter is declared
to be remedial; its purpose is to settle and to afford relief from uncertainty and insecurity with
respect to rights, status, and other legal relations; and is to be liberally construed and
administered.” Id. § 29-14-113 (2012).
With respect to the Declaratory Judgments Act, this Court has asserted:
The primary purpose of the Declaratory Judgment[s] Act is “to settle
and to afford relief from uncertainty and insecurity with respect to rights,
status, and other legal relations. . . .” Tenn. Code Ann. § 29-14-113. Although
the Act is “to be liberally construed and administered,” id., we have
acknowledged that “certain limitations must be placed upon the operation of
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the statute.” Johnson City v. Caplan, 194 Tenn. 496, 253 S.W.2d 725, 726
(1952). For example, a declaratory judgment action cannot be used by a court
to decide a theoretical question, Miller v. Miller, 149 Tenn. 463, 261 S.W.
965, 972 (1924), render an advisory opinion which may help a party in another
transaction, Hodges v. Hamblen County, 152 Tenn. 395, 277 S.W. 901, 902
(1925), or “allay fears as to what may occur in the future,” Super Flea Mkt.
[v. Olsen], 677 S.W.2d [449,] 451 [(Tenn. 1984)]. Thus, in order to maintain
an action for a declaratory judgment a justiciable controversy must exist. Jared
v. Fitzgerald, 183 Tenn. 682, 195 S.W.2d 1, 4 (1946). For a controversy to be
justiciable, a real question rather than a theoretical one must be presented and
a legally protectable interest must be at stake. Cummings v. Beeler, 189 Tenn.
151, 223 S.W.2d 913, 915 (1949). If the controversy depends upon a future
or contingent event, or involves a theoretical or hypothetical state of facts, the
controversy is not justiciable. Story v. Walker, 218 Tenn. 605, 404 S.W.2d
803, 804 (1966). If the rule were otherwise, the “courts might well be
projected into the limitless field of advisory opinions.” Id.
State v. Brown & Williamson Tobacco Corp., 18 S.W.3d 186, 193 (Tenn. 2000) (emphases
added); see also UT Med. Group, Inc. v. Vogt, 235 S.W.3d 110, 119 (Tenn. 2007) (“To be
justiciable, a case must involve presently existing rights, live issues that are within a court’s
jurisdiction, and parties who have a legally cognizable interest in the issues. A case is not
justiciable if it does not involve a genuine, existing controversy requiring the adjudication
of presently existing rights.”) (citing Brown & Williamson Tobacco Corp., 18 S.W.3d at 193;
State ex rel. Lewis v. State, 347 S.W.2d 47, 48-49 (Tenn. 1961)); S. Ry. Co. v. Dunn, 483
S.W.2d 101, 103-04 (Tenn. 1972); Mills v. Shelby Cnty Election Comm’n, 218 S.W.3d 33,
39-40 (Tenn. Ct. App. 2006) (affirming trial court’s dismissal of complaint for declaratory
judgment because plaintiff “present[ed] a theoretical question of what may happen in future
elections, which question does not rise to the level of a justiciable controversy”) (citing
Brown & Williamson Tobacco Corp., 18 S.W.3d at 193); Campbell v. Sundquist, 926
S.W.2d 250, 257 (Tenn. Ct. App. 1996) (“The existence of a justiciable controversy is also
a jurisdictional prerequisite to the maintenance of an action under the [Declaratory
Judgments] Act.”), abrogated on other grounds by Colonial Pipeline Co. v. Morgan, 263
S.W.3d 827, 853 (Tenn. 2008). Indeed, as our Court of Appeals recognized many years ago:
That to maintain an action for a declaratory judgment a justiciable controversy
must exist between persons with adverse interests is well settled. For a
controversy to be justiciable, a real question rather than a theoretical one must
be presented and a real legally protectable interest must be at stake on the part
of plaintiff. If the controversy depends upon a future or contingent event or
involves a theoretical or hypothetical state of facts, the controversy is not
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justiciable under the Tennessee Declaratory Judgments Act. The Declaratory
Judgments Act does not give the courts jurisdiction to render advisory opinions
to assist the parties or to allay their fears as to what may occur in the future.
Parks v. Alexander, 608 S.W.2d 881, 891-92 (Tenn. Ct. App. 1980) (citations omitted).9
Preliminarily, we note that the Complaint contains no specific allegation as to how the
Protocol is unconstitutional as applied to any individual Plaintiff.10 Therefore, we question
whether the allegations of the Complaint actually are sufficient to constitute an as-applied
challenge to the Protocol. See Waters v. Farr, 291 S.W.3d 873, 923 (Tenn. 2009)
(recognizing that challenges to the constitutionality of statutes “as applied” “requires the
challenger to demonstrate that the statute operates unconstitutionally when applied to the
challenger’s particular circumstances”) (Koch, J., concurring in part, dissenting in part); see
also United States v. Marcavage, 609 F.3d 264, 273 (3d Cir. 2010) (“An as-applied attack,
in contrast [to a facial attack], does not contend that a law is unconstitutional as written but
that its application to a particular person under particular circumstances deprived that
person of a constitutional right.”) (emphasis added).11
We are mindful that public officials in Tennessee are presumed to discharge their
duties in good faith and in accordance with the law. See, e.g., Reeder v. Holt, 418 S.W.2d
249, 252 (Tenn. 1967); Mayes v. Bailey, 352 S.W.2d 220, 223 (Tenn. 1961) (“There is a
presumption of good faith ordinarily accorded to public officials and quasi public officials.”);
9
Clearly, the Plaintiffs’ facial challenge to the constitutional validity of the Protocol as written
presents a justiciable controversy.
10
Indeed, at oral argument, despite repeated questions, counsel for the Plaintiffs was unable to
identify any allegation in the Complaint as to any individual Plaintiff on an as-applied challenge.
11
For examples of claims recognized by the courts as “as-applied” challenges, see, e.g., Davis v.
State, 142 So. 3d 867, 871 (Fla. 2014) (inmate claimed that his medical condition of porphyria rendered the
lethal injection protocol unconstitutional as applied to him), cert. denied __ U.S. __, 135 S. Ct. 15 (Jul. 10,
2014); Henry v. State, 134 So. 3d 938, 946 (Fla. 2014) (inmate claimed that, due to his “specific medical
concerns,” including coronary artery disease and medication for high blood pressure, “the use of midazolam
as the first drug of the lethal injection process creates an unconstitutional risk of severe pain”), cert. denied
__ U.S. __, 134 S. Ct. 1536 (Mar. 20, 2014); Howell v. State, 133 So. 3d 511, 518 (Fla. 2014) (inmate
alleged that his history of bipolar disorder, brain damage, PTSD, and extreme anxiety “create[d] an increased
risk that he will suffer a paradoxical reaction to midazolam, meaning that midazolam will have the opposite
effect on him that it has on others and thus will not properly anesthetize him”), cert. denied __ U.S. __, 134
S. Ct. 1376 (Feb. 26, 2014); see also In re Ohio Execution Protocol Litigation, 994 F. Supp. 2d 906, 912
(S.D. Ohio 2014) (inmate sought a stay of execution on the basis that the lethal injection protocol would
cause his execution to violate the Eighth Amendment because he possessed “physical and medical
characteristics that increase his risk of obstructive sleep apnea”).
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Jackson v. Aldridge, 6 S.W.3d 501, 503 (Tenn. Ct. App. 1999) (recognizing the presumption
that “public officials perform their duties in the manner prescribed by law”); State ex rel.
Witcher v. Bilbrey, 878 S.W.2d 567, 576 (Tenn. Ct. App. 1994) (“Public officials . . . are
presumed to perform their duties in good faith and are also presumed to know and act in
accordance with the law.”) (internal citations omitted).
Even assuming, arguendo, that the Plaintiffs sufficiently have alleged that the
Protocol is somehow unconstitutional as applied to one or more of them, or that one or more
individuals may cause the Protocol to be carried out in an unconstitutional manner in the
future, these claims are hypothetical and speculative and do not constitute a justiciable
controversy under the Declaratory Judgments Act.12 Cf. Nat’l Endowment for the Arts v.
Finley, 524 U.S. 569, 583-84 (1998) (stating, in response to a claim that a statute was facially
unconstitutional because it could be used to engage in viewpoint discrimination, “we are
reluctant, in any event, to invalidate legislation on the basis of its hypothetical application
to situations not before the Court”) (internal quotation marks omitted). Accordingly, the
Plaintiffs are not entitled in this proceeding to the discovery of information as to claims that
are merely speculative and do not present a justiciable controversy.
Conclusion
For the reasons set forth above, we hold that the trial court committed reversible error
when it granted the Plaintiffs’ motion to compel and ordered the State to provide the
Plaintiffs with the identities of the John Doe Defendants. Accordingly, the trial court’s order
granting the Plaintiffs’ motion to compel and the Court of Appeals’ judgment affirming that
order are reversed. This matter is remanded to the trial court for further proceedings
consistent with this Opinion and in compliance with the timelines set forth in the judgment
order filed contemporaneously with this Opinion.
_____________________________
JEFFREY S. BIVINS, JUSTICE
12
Our holding in this interlocutory proceeding does not preclude appropriate as-applied challenges
to the Protocol that may arise in the future.
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