from the LaPorte Circuit Court Trial Court Cause No.
46C01-1512-PL-2154 The Honorable Thomas J. Alevizos, Judge
Attorney for Appellant David W. Frank Christopher C. Myers
& Associates Fort Wayne, Indiana
Attorneys for Appellee Curtis T. Hill, Jr. Attorney General
of Indiana Stephen R. Creason Chief Counsel Indianapolis,
Roy Lee Ward is an Indiana inmate on death row. In 2014, the
Department of Correction (DOC) internally adopted a new
method of lethally injecting inmates; the new method includes
a cocktail of drugs that has never been administered in an
execution in the United States. Ward filed a claim seeking
injunctive and declaratory relief, arguing that the DOC was
required to promulgate this new policy as a rule under the
Administrative Rules and Procedure Act (ARPA). The State filed a
motion to dismiss the claim, which the trial court granted.
Ward now appeals. Finding that the General Assembly has not
exempted the DOC from ARPA and that the statutory definition
of "rule" clearly includes the DOC's execution
protocols, we reverse.
In 2007, Ward was sentenced to death by execution in Indiana.
He is currently imprisoned at Indiana State Prison in LaPorte
County. State officials, through the DOC, administer all
state executions, which occur by the intravenous injection of
lethal substances. In May 2014, State officials announced
that they had adopted a new rule in their execution protocol.
The new rule was not promulgated under ARPA but was instead
adopted informally as an internal DOC policy.
This new rule, which was effective immediately, provided that
all prisoners sentenced to death in Indiana (including Ward)
would be executed by a new combination of three
drugs-methohexital (known by the brand name Brevital),
pancuronium bromide, and potassium chloride. No prisoner of
any state nor of the federal government has ever been
executed with this particular combination of drugs.
On December 22, 2015, Ward filed a complaint seeking
injunctive relief and a declaratory judgment. His essential
argument was that because this new rule was not promulgated
under ARPA, it is unlawful and violates his rights under ARPA
and his right to due process under the state and federal
constitutions. On March 29, 2016, the State filed a motion to
dismiss pursuant to Indiana Trial Rule 12(B)(6), arguing that
Ward had failed to state a claim on which relief could be
granted. Essentially, the State contended that ARPA did not
apply to the adoption of this new rule and that,
consequently, no due process violation had occurred.
Following a hearing, the trial court granted the motion and
dismissed Ward's complaint. Ward now appeals.
We apply a de novo standard of review to a trial court's
order granting a Rule
motion to dismiss a complaint for failure to state a claim.
Clarian Health Partners, Inc., 980 N.E.2d 306, 308
(Ind. 2012). A motion to dismiss for failure to state a claim
tests the legal sufficiency of the complaint, not the facts
supporting it. Id. In conducting our review, we must
take all allegations of the complaint as true, construing
them in the light most favorable to the plaintiff, to
determine whether the complaint states any facts upon which
the trial court conceivably could have granted relief.
Id. We will reverse an order granting such a motion
if there is any set of circumstances under which a plaintiff
would be entitled to relief. Id.
Ward argues that the method in which the State adopted this
new execution policy violated his rights under ARPA and his
due process rights under the state and federal constitutions.
Relevant ARPA Provisions
Under ARPA, a "rule" is ...