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Oregon Execution Viewing Rules Invalidated
The Oregon Supreme Court invalidated several administrative rules of the Oregon Department of Corrections, (ODOC), regarding the witnessing of executions. The Court held that the challenged rules exceeded the ODOC's rulemaking authority.
The Oregon Newspaper Publishers Association and several other members of the media challenged a series of rules promulgated by the ODOC which imposed various conditions and restrictions on persons who witness executions of death sentences which are carried out by the ODOC. The Court described those rules as nondisclosure and limited access rules.
The nondisclosure rules required all witnesses to agree, as a condition of attending the execution, that they would waive their rights to free expression with respect to certain things they might see. The limited access rules restricted what the witnesses see when the lethal injection is actually administered and causes death.
The Court of Appeals upheld the challenged rules, holding that they did not violate the First Amendment, or Oregon's free expression clause, in any of the ways that petitioners asserted. Oregon Newspaper Publishers v. Dept. of Corrections, 966 P.2d 819 (Or.App. 1998). The Supreme Court reversed the Court of Appeals decision, however, resolving the case on statutory rather than constitutional grounds.
With respect to the nondisclosure rules, the Court found that none of the statutes from which the ODOC's authority arises permit the ODOC to condition a right to be present on a witness' willingness to waive his or her free expression rights - not only while still inside the institution, but afterwards. Accordingly, the Court concluded that the nondisclosure rules exceeded the ODOC's rule making authority and, therefore, are invalid.
With respect to the limited access rules, the Court found that remote activities that precede an execution, such as holding the prisoner in a special cell or the serving of a special last meal, are not a part of the execution. But the Court found that those actions that are linked inextricably with the administration of the fatal drugs, such as connecting special monitoring equipment to the prisoner, placing the prisoner in restraints, and inserting a catheter that later will be used to administer the fatal drugs, are part of the execution.
The Court held that the limited access rules which prevented witnesses from seeing those activities that are linked inextricably with the administration of the fatal drugs, exceeded the ODOC's statutory authority and, therefore, were invalid, because they impaired the right granted to the witnesses under ORS 137.473, to view the execution. Oregon Newspaper Publishers v. Dept. of Corrections, 988 P.2d 339 (Or. 1999).
The Oregon Newspaper Publishers Association and several other members of the media challenged a series of rules promulgated by the ODOC which imposed various conditions and restrictions on persons who witness executions of death sentences which are carried out by the ODOC. The Court described those rules as nondisclosure and limited access rules.
The nondisclosure rules required all witnesses to agree, as a condition of attending the execution, that they would waive their rights to free expression with respect to certain things they might see. The limited access rules restricted what the witnesses see when the lethal injection is actually administered and causes death.
The Court of Appeals upheld the challenged rules, holding that they did not violate the First Amendment, or Oregon's free expression clause, in any of the ways that petitioners asserted. Oregon Newspaper Publishers v. Dept. of Corrections, 966 P.2d 819 (Or.App. 1998). The Supreme Court reversed the Court of Appeals decision, however, resolving the case on statutory rather than constitutional grounds.
With respect to the nondisclosure rules, the Court found that none of the statutes from which the ODOC's authority arises permit the ODOC to condition a right to be present on a witness' willingness to waive his or her free expression rights - not only while still inside the institution, but afterwards. Accordingly, the Court concluded that the nondisclosure rules exceeded the ODOC's rule making authority and, therefore, are invalid.
With respect to the limited access rules, the Court found that remote activities that precede an execution, such as holding the prisoner in a special cell or the serving of a special last meal, are not a part of the execution. But the Court found that those actions that are linked inextricably with the administration of the fatal drugs, such as connecting special monitoring equipment to the prisoner, placing the prisoner in restraints, and inserting a catheter that later will be used to administer the fatal drugs, are part of the execution.
The Court held that the limited access rules which prevented witnesses from seeing those activities that are linked inextricably with the administration of the fatal drugs, exceeded the ODOC's statutory authority and, therefore, were invalid, because they impaired the right granted to the witnesses under ORS 137.473, to view the execution. Oregon Newspaper Publishers v. Dept. of Corrections, 988 P.2d 339 (Or. 1999).
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Related legal case
OR Newspaper Publishers v. Dept. of Corr.
| Year | 1999 |
|---|---|
| Cite | 988 P.2d 359 (OR 1999) |
| Level | State Supreme Court |
| Attorney Fees | 0 |
| Damages | 0 |
| Injunction Status | N/A |
[33] The collective effect of the rules is to require all witnesses to agree, as a condition of attending the execution, that they will waive their rights to free expression respecting certain things that they might see and that they will be subject to injunction and may be required to respond in damages if they violate that agreement. Petitioners argue that the nondisclosure rules exceed the statutory authority of DOC, because they place limits that the voters*fn4 did not authorize on the witnesses. They further argue that, by limiting what the witnesses see to those moments when the lethal injection actually is administered and performs its function, DOC is not permitting the witnesses to witness the entire execution: "[T]he statute requires that the execution, not just the dying, be observed by the witnesses." We deal with each of those arguments in turn.
[34] As noted, ORS 137.473 establishes two classes of witnesses to an execution, one of which is made up of persons who are entitled to be present if they wish to be. Petitioners argue that limiting the right of those persons who statutorily are entitled to be present by requiring them to sign the DOC nondisclosure agreement exceeds DOC's authority. DOC responds that the rules themselves establish that DOC has legitimate concerns for the privacy and safety of those involved in the execution process, so that its restrictions on all those who witness executions are proper.
[35] The parties' disagreement, although fundamental, is narrow. Petitioners do not deny that DOC has the right to assure the security of the institution. For example, petitioners do not question the right of DOC to assure that all visitors -- including those invited to witness an execution -- do not bring contraband, weapons, or explosives into the institution. See AFSCME, 315 Or at 80-82 (recognizing DOC's authority in that respect). But petitioners do assert, inter alia, that the statute from which DOC derives its power to ensure security cannot be read so broadly as to grant DOC the right to interfere with the free expression rights of persons whom the voters have declared to be entitled to be present to witness an execution.
[36] Petitioners' point is well taken. We recognize, as we did in AFSCME, that DOC is charged with duties involving the security and safety of its institutions and that those duties may permit it to limit the activities of persons on its premises in ways that the government generally could not limit activities outside a prison setting. But we find nothing in ORS 137.473 or in any of the other statutes from which DOC's authority arises that can be read so broadly as to permit DOC to condition a right to be present on a witness' willingness to waive that witness' free expression rights -- not only while still inside the institution, but afterward. Such an authority is not stated and, given the nature of petitioners' free expression interests, we will not infer it. It follows that, to the extent that OAR 291-024-0020 and 291-024-0017 purport to place nondisclosure requirements on members of the class of witnesses who may, at their own discretion, be present at the execution, those rules exceed the rulemaking authority granted to DOC by the legislature and, therefore, are invalid. ORS 183.400(4)(b).
[37] This leaves the question whether the rules may be enforced against the class of witnesses that may be present only with the permission of the superintendent. We decline to answer that question in this case, because our holding already requires DOC to reconsider -- and, possibly, abandon -- the rules. If DOC cannot limit all witnesses in the way that it wishes to do, it is not clear that it will attempt to limit only some of those witnesses in that way. Thus, a ruling by this court concerning the position of the remaining witnesses may be academic and can await a revision of the rules. We turn to petitioners' second argument, viz., that restricting what the witnesses see to the moments during which the lethal injection is administered and causes death does not permit them to witness the entire execution. The statute authorizes certain witnesses to be present at "the execution." (Emphasis added.) An "execution" is "a putting to death as a legal penalty: CAPITAL PUNISHMENT." Webster's Third New Int'l Dictionary, 794 (unabridged ed 1993).*fn5 That word, and the legislature's purpose in using it, are clear.*fn6
[38] The execution is the process of putting the prisoner to death. It follows that remote activities that precede that process, such as holding the prisoner in a special cell or giving the prisoner a special "last meal," are not a part of "the execution." On the other hand, it equally is clear that those actions that are linked inextricably with the administration of the fatal drugs are part of the execution. Those acts include connecting special monitoring equipment to the prisoner, placing the prisoner in restraints, and inserting a catheter that later will be used to administer the fatal drug. DOC's limited access rules, OAR 291-024-0065, 291-024-0070, and 291-024-0080, which prevent the witnesses from seeing those latter activities, exceed the statutory authority of the agency and, thus, are invalid, because they impair the right granted to the witnesses under ORS 137.473 to view "the execution." ORS 183.400(4)(b). In summary, we hold that the nondisclosure rules, OAR 291-024-0017 and 291-024-0020, are invalid, to the extent that they purport to place limits on the expression rights of persons who are granted by ORS 137.473 a right to be present at executions. We further hold that the limited access rules, OAR 291-024-0065, 291-024-0070, and 291-024-0080, are invalid, because they limit too severely the activities that the witnesses may see. Finally, we decline to address certain other challenges raised by petitioners, either because those challenges are rendered moot by our decision or because it is not clear that the basis for those challenges will remain relevant, after DOC has taken such steps as it finds necessary to remedy the defects in the rules identified by this opinion.*fn7
[39] The decision of the Court of Appeals is reversed. Oregon Administrative Rules 291-024-0017, 291-024-0020, 291-024-0065, 291-024-0070, and 291-024-0080, are declared invalid to the extent stated in this opinion.
Opinion Footnotes
[40] *fn1. ORS 183.400 provides, in part: "(1) The validity of any rule may be determined upon a petition by any person * * * in the manner provided for review of orders in contested cases. The court shall have jurisdiction to review the validity of the rule whether or not the petitioner has first requested the agency to pass upon the validity of the rule in question, but not when the petitioner is a party to an order or a contested case in which the validity of the rule may be determined by a court. "* * * * * "(3) Judicial review of a rule shall be limited to an examination of: "(a) The rule under review; "(b) The statutory provisions authorizing the rule; and "(c) Copies of all documents necessary to demonstrate compliance with applicable rulemaking procedures. "(4) The court shall declare the rule invalid only if it finds that the rule: "(a) Violates constitutional provisions; "(b) Exceeds the statutory authority of the agency; or "(c) Was adopted without compliance with applicable rulemaking procedures." Petitioners meet the "any person" requirement for standing to seek review of the rule.
[41] *fn2. Although the State of Oregon also was named a party respondent in this proceeding, DOC promulgated the rules in question. We therefore refer to respondents, both individually and collectively, as "DOC" throughout this opinion.
[42] *fn3. The rules are too extensive to be set out verbatim here, but pertinent portions are quoted at the appropriate places in this opinion.
[43] *fn4. ORS 137.473 was adopted by the people on November 6, 1984. Or Laws 1985, ch 3, § 7(1).
[44] *fn5. There are other definitions of "execution," of course, but none that relates to the process of putting a prisoner to death.
[45] *fn6. See PGE v. Bureau of Labor and Industries, 317 Or 606, 610-11, 859 P2d 1143 (1993) (court's task in determining legislative intent is first to examine text of statute, including context in which statute is found and, if intent is "clear," to proceed no further with analysis).
[46] *fn7. Because we have declared all the DOC rules at issue to be invalid on statutory grounds, we do not reach petitioners' constitutional arguments. Updated: 07/22/1999 Web authoring by Print Services
[34] As noted, ORS 137.473 establishes two classes of witnesses to an execution, one of which is made up of persons who are entitled to be present if they wish to be. Petitioners argue that limiting the right of those persons who statutorily are entitled to be present by requiring them to sign the DOC nondisclosure agreement exceeds DOC's authority. DOC responds that the rules themselves establish that DOC has legitimate concerns for the privacy and safety of those involved in the execution process, so that its restrictions on all those who witness executions are proper.
[35] The parties' disagreement, although fundamental, is narrow. Petitioners do not deny that DOC has the right to assure the security of the institution. For example, petitioners do not question the right of DOC to assure that all visitors -- including those invited to witness an execution -- do not bring contraband, weapons, or explosives into the institution. See AFSCME, 315 Or at 80-82 (recognizing DOC's authority in that respect). But petitioners do assert, inter alia, that the statute from which DOC derives its power to ensure security cannot be read so broadly as to grant DOC the right to interfere with the free expression rights of persons whom the voters have declared to be entitled to be present to witness an execution.
[36] Petitioners' point is well taken. We recognize, as we did in AFSCME, that DOC is charged with duties involving the security and safety of its institutions and that those duties may permit it to limit the activities of persons on its premises in ways that the government generally could not limit activities outside a prison setting. But we find nothing in ORS 137.473 or in any of the other statutes from which DOC's authority arises that can be read so broadly as to permit DOC to condition a right to be present on a witness' willingness to waive that witness' free expression rights -- not only while still inside the institution, but afterward. Such an authority is not stated and, given the nature of petitioners' free expression interests, we will not infer it. It follows that, to the extent that OAR 291-024-0020 and 291-024-0017 purport to place nondisclosure requirements on members of the class of witnesses who may, at their own discretion, be present at the execution, those rules exceed the rulemaking authority granted to DOC by the legislature and, therefore, are invalid. ORS 183.400(4)(b).
[37] This leaves the question whether the rules may be enforced against the class of witnesses that may be present only with the permission of the superintendent. We decline to answer that question in this case, because our holding already requires DOC to reconsider -- and, possibly, abandon -- the rules. If DOC cannot limit all witnesses in the way that it wishes to do, it is not clear that it will attempt to limit only some of those witnesses in that way. Thus, a ruling by this court concerning the position of the remaining witnesses may be academic and can await a revision of the rules. We turn to petitioners' second argument, viz., that restricting what the witnesses see to the moments during which the lethal injection is administered and causes death does not permit them to witness the entire execution. The statute authorizes certain witnesses to be present at "the execution." (Emphasis added.) An "execution" is "a putting to death as a legal penalty: CAPITAL PUNISHMENT." Webster's Third New Int'l Dictionary, 794 (unabridged ed 1993).*fn5 That word, and the legislature's purpose in using it, are clear.*fn6
[38] The execution is the process of putting the prisoner to death. It follows that remote activities that precede that process, such as holding the prisoner in a special cell or giving the prisoner a special "last meal," are not a part of "the execution." On the other hand, it equally is clear that those actions that are linked inextricably with the administration of the fatal drugs are part of the execution. Those acts include connecting special monitoring equipment to the prisoner, placing the prisoner in restraints, and inserting a catheter that later will be used to administer the fatal drug. DOC's limited access rules, OAR 291-024-0065, 291-024-0070, and 291-024-0080, which prevent the witnesses from seeing those latter activities, exceed the statutory authority of the agency and, thus, are invalid, because they impair the right granted to the witnesses under ORS 137.473 to view "the execution." ORS 183.400(4)(b). In summary, we hold that the nondisclosure rules, OAR 291-024-0017 and 291-024-0020, are invalid, to the extent that they purport to place limits on the expression rights of persons who are granted by ORS 137.473 a right to be present at executions. We further hold that the limited access rules, OAR 291-024-0065, 291-024-0070, and 291-024-0080, are invalid, because they limit too severely the activities that the witnesses may see. Finally, we decline to address certain other challenges raised by petitioners, either because those challenges are rendered moot by our decision or because it is not clear that the basis for those challenges will remain relevant, after DOC has taken such steps as it finds necessary to remedy the defects in the rules identified by this opinion.*fn7
[39] The decision of the Court of Appeals is reversed. Oregon Administrative Rules 291-024-0017, 291-024-0020, 291-024-0065, 291-024-0070, and 291-024-0080, are declared invalid to the extent stated in this opinion.
Opinion Footnotes
[40] *fn1. ORS 183.400 provides, in part: "(1) The validity of any rule may be determined upon a petition by any person * * * in the manner provided for review of orders in contested cases. The court shall have jurisdiction to review the validity of the rule whether or not the petitioner has first requested the agency to pass upon the validity of the rule in question, but not when the petitioner is a party to an order or a contested case in which the validity of the rule may be determined by a court. "* * * * * "(3) Judicial review of a rule shall be limited to an examination of: "(a) The rule under review; "(b) The statutory provisions authorizing the rule; and "(c) Copies of all documents necessary to demonstrate compliance with applicable rulemaking procedures. "(4) The court shall declare the rule invalid only if it finds that the rule: "(a) Violates constitutional provisions; "(b) Exceeds the statutory authority of the agency; or "(c) Was adopted without compliance with applicable rulemaking procedures." Petitioners meet the "any person" requirement for standing to seek review of the rule.
[41] *fn2. Although the State of Oregon also was named a party respondent in this proceeding, DOC promulgated the rules in question. We therefore refer to respondents, both individually and collectively, as "DOC" throughout this opinion.
[42] *fn3. The rules are too extensive to be set out verbatim here, but pertinent portions are quoted at the appropriate places in this opinion.
[43] *fn4. ORS 137.473 was adopted by the people on November 6, 1984. Or Laws 1985, ch 3, § 7(1).
[44] *fn5. There are other definitions of "execution," of course, but none that relates to the process of putting a prisoner to death.
[45] *fn6. See PGE v. Bureau of Labor and Industries, 317 Or 606, 610-11, 859 P2d 1143 (1993) (court's task in determining legislative intent is first to examine text of statute, including context in which statute is found and, if intent is "clear," to proceed no further with analysis).
[46] *fn7. Because we have declared all the DOC rules at issue to be invalid on statutory grounds, we do not reach petitioners' constitutional arguments. Updated: 07/22/1999 Web authoring by Print Services