Two men on death row believe Ohio’s process for executing prisoners is invalid because of the way it was put into place.

The Department of Rehabilitation and Correction (DRC) develops a protocol for executions. The men argue the protocol is a set of rules that the DRC must submit through the state’s formal rulemaking procedure before implementing. The DRC didn’t follow the procedure, so the agency cannot execute them, the men conclude.

Men Sentenced to Death in Separate Cases James O’Neal received the death penalty for murdering his wife in 1993 in her Madisonville home. During a 2003 robbery in Lima, Cleveland Jackson shot into a crowd, killing a teenager and a 3-year-old. Jackson was sentenced to death. Both men’s executions are scheduled for 2023.

O’Neal sued the state in Franklin County Common Pleas Court in January 2018, arguing that the DRC protocol is invalid because it was improperly adopted. The court allowed Jackson to intervene in the case later that year. In April 2019, the court granted summary judgment in the DRC’s favor.

The men each filed appeals with the Tenth District Court of Appeals. In a combined ruling, the appeals court upheld the trial court, stating in part that the execution protocol isn’t a government agency rule.

R.C. 111.15 defines a “rule” as “any rule, regulation, bylaw, or standard having a general and uniform operation adopted by an agency under the authority of the laws governing the agency; any appendix to a rule; and any internal management rule.” Rules developed by government agencies in the state must go through a formal rulemaking process.

O’Neal and Jackson appealed the Tenth District’s judgment separately. The Ohio Supreme Court accepted both cases and combined them for oral argument.

Protocol Presents General, Uniform Operation for Executions, Men Maintain O’Neal and Jackson maintain that the execution protocol – specifically, DRC 01-COM-11 – is a rule because it sets DRC standards that have a general and uniform operation for carrying out executions. 

Under state law, government agencies must file all proposed rules with the Ohio secretary of state, the Legislative Service Commission, and the Joint Committee on Agency Rule Review and must meet certain standards before the rules can take effect. However, the DRC didn’t submit the execution protocol to any of these agencies. Because the DRC failed to follow the rulemaking process, the execution protocol is invalid, Jackson contends.

O’Neal disputes the Tenth District’s conclusion that the protocol isn’t a rule because it “fills the gaps” left by the General Assembly when enacting the state law governing executions. O’Neal agrees that administrative agencies adopt rules to fill the gaps in statutes and describes this role as part of the agency’s responsibility and power. However, he argues, the filling of legislative gaps doesn’t exempt the DRC from the rulemaking requirements in R.C. 111.15.

Jackson notes that California, Kentucky, Maryland, Nebraska, and Oregon mandate that execution protocols go through their state administrative rulemaking procedures.

Inmates Can’t Sue and Protocol Describes Employee Duties, State Responds Represented by the Ohio Attorney General’s Office, the DRC argues the men don’t have the right to sue because the agency isn’t mandated to use a written execution protocol. The men could be executed with or without a written protocol, the agency maintains. Because the men’s ”injuries” – their scheduled executions – can’t be corrected by a ruling in their favor, they don’t have standing and the Court cannot hear the cases, the DRC asserts.

The agency also contends that the protocol isn’t a rule because it doesn’t have general and uniform application. Although R.C. 111.15 states that an “internal management rule” falls under the definition of “rule,” the law also notes that “any order respecting the duties of employees” is not a rule. The agency argues the protocol isn’t a rule, viewing it as an order that directs the responsibilities of employees – essentially a checklist for personnel carrying out executions.

The DRC maintains that not all government agency processes that fill the gaps left by legislation are necessarily rules. It notes, for example, that the Secretary of State’s election manual details many mechanics of voting but isn’t submitted through the rules process.

Oral Argument Details The Supreme Court will hear four cases on June 29. The Court will consider arguments in Jackson v. State and O’Neal v. State as well as two other appeals on June 30. Oral arguments begin each day at 9 a.m.

The Court will hold its session by videoconference. The arguments will be streamed live online at sc.ohio.gov and broadcast live on the Ohio Channel, which also archives them.

In addition to these highlights, the Court’s Office of Public Information released preview articles today about each case, available through the case-name links.

Tuesday, June 29 A job posting for captain in the Cincinnati Police Department required two years of experience as a police lieutenant. The city’s civil service commission waived the prerequisite and allowed lieutenants with at least one year to take the exam for the promotion. In State ex rel. Johnstone v. Cincinnati, a lieutenant of more than two years who wasn’t promoted maintains the commission illegally waived the experience prerequisite. The city counters that state law mandates that only sergeant positions can require more than a year of service in the prior rank.

In early 2020, a northern Ohio company applied to the Public Utilities Commission of Ohio (PUCO) to be a competitive retail electric service provider. The company moved into the same Akron office building that serves as the headquarters of its affiliated regional monopoly electric transmission service provider. The retailer and the transmission service shared key employees and a similar trade name. The Court will consider in In re Application of Suvon objections raised by a competing retail provider and the state’s residential consumer advocate that the PUCO improperly authorized the new retail company to operate. Opponents reject the PUCO’s order to defer all questions about whether the provider complied with rules on corporate separation to a special audit, which also is examining the utility provider’s role in an Ohio Statehouse bribery scandal.

The Logan County Drug Task Force set up a controlled buy in 2018 to observe a suspected drug dealer sell cocaine. Based on the sale, a detective submitted details of the investigation to the municipal court seeking an arrest warrant for the suspect. As part of the process, the judge stamped on the complaint page that there was sufficient probable cause to issue the warrant. However, the warrant form was left blank with the understanding it would be completed after the arrest. In the trial court, the suspect successfully argued to suppress the evidence retrieved from him and his vehicle after the arrest, contending the warrant was invalid. In State v. Harrison, the Court will consider if an arrest warrant is valid if it doesn’t contain a judge’s signature authorizing it.

The recent Reagan Tokes Law is the focus of State v. Maddox. Under the law, an offender can be released once the offender’s minimum prison term is complete, but prison officials can choose to delay the release up to the stated maximum prison term. A man who was sentenced in Lucas County to four to six years argues the indefinite sentencing structure is unconstitutional and he can challenge the law’s constitutionality before serving his minimum time. The county prosecutor asserts that the man has suffered no harm at this point because prison officials haven’t extended his sentence beyond the minimum.

Wednesday, June 30 A Franklin County man on trial for a 2019 shooting at a local carryout took the witness stand in his own defense. He wanted to explain the interactions that led to him shooting another man in the leg and to claim his actions were in self-defense. While he was testifying, the trial court judge interrupted him several times with pointed questions. Before the jury deliberated, the judge instructed jury members to ignore his remarks. In State v. West, the man argues his constitutional due process right to an impartial judge was violated and he is entitled to a new trial. The county prosecutor maintains the man failed to prove the judge’s behavior affected the outcome and the verdict should stand.

A Dayton community school director approved applications to receive more than $400,000 in public funds to educate students for the 2009-2010 school year. Following state law, the school’s board of directors hired a chief fiscal officer, who was responsible for all financial matters and reported directly to the board. A 2012 audit revealed more than $50,000 in suspicious transactions by the community school, and a federal investigation found the fiscal officer was embezzling from the Dayton school and others. The fiscal officer was sentenced to two years in federal prison in 2012. The state sued the school director, stating that he is personally liable for paying back the lost money. In State ex rel. Ohio Attorney General v. Burns, the Court will consider if the director is responsible for funds that he didn’t receive or control.