#29083-a-PER CURIAM 2019 S.D. 59 IN THE SUPREME COURT OF THE STATE OF SOUTH DAKOTA * * * * CHARLES RUSSELL RHINES, Plaintiff and Appellant,

v. SOUTH DAKOTA DEPARTMENT OF CORRECTIONS and MIKE LEIDHOLT, Secretary, South Dakota Department of Corrections, Defendant and Appellee. * * * * APPEAL FROM THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT MINNEHAHA COUNTY, SOUTH DAKOTA * * * * THE HONORABLE JON C. SOGN Judge * * * * DANIEL R. FRITZ TIMOTHY R. RAHN Ballard Spahr LLP Sioux Falls, South Dakota Attorneys for plaintiff and appellant.

JASON R. RAVNSBORG Attorney General PAUL S. SWEDLUND Assistant Attorney General Pierre, South Dakota Attorneys for defendant and appellee. * * * * CONSIDERED ON BRIEFS OCTOBER 15, 2019 OPINION FILED 10/25/19#29083

-1- PER CURIAM [¶1.] Charles Rhines is a prisoner aw aiting execution for a death sentence imposed following his first-degree murder conviction. He brought a civil action challenging a Department of Corrections administrative policy relating to the method and procedures for carrying out capi tal sentences. The circuit court granted the State’s motion to dismiss, an d Rhines appeals. We affirm. Background [¶2.] Rhines killed Donnivan Schaeffe r in March of 1992 while burglarizing a Rapid City doughnut shop. A jury convicted Rhines of first-degree murder and
recommended a sentence of death. The circuit court 1 imposed the death sentence and issued a warrant of execution. Rhines appealed to this Court, and we affirmed the conviction and sentence. State v. Rhines , 1996 S.D. 55, 548 N.W.2d 415. The United States Supreme Court later denied Rh ines’ request for a writ of certiorari. Rhines v. South Dakota , 519 U.S. 1013, 117 S. Ct. 522, 136 L. Ed. 2d 410 (1996). [¶3.] In the twenty-three years that have followed, Rhines has pursued collateral review of his conviction and sent ence in state and federal courts. Among these cases was a direct challenge to the St ate’s lethal injection protocols under the current law and under the law as it existe d at the time of Rhines’ conviction and

sentence. 2 In an amended petition for a writ of habeas corpus, Rhines argued that

1. The Honorable John K. Konenkamp, Circuit Court Judge, now a retired Justice of this Court. 2. The information relating to this proceeding is contained in our court file in Rhines v. Weber , #26673 (2013). It is included here for context and a more complete exposition of the facts. We have not relied upon the information to (continued . . .)#29083

-2- the State’s protocols violated due proces s and the Eighth Amendment’s proscription against cruel and unusual punishment. The issues were fully litigated during a court trial, which included expert medical testimony. [¶4.] In its subsequent wri tten decision, the circuit court 3 reviewed the parties’ evidence against settled constituti onal principles, made detailed findings of fact, and concluded the State’s lethal inject ion protocols did not constitute cruel and unusual punishment. The circuit court deni ed Rhines’ request for a certificate of probable cause, which would have allo wed an appeal to this Court. See SDCL 21- 27-18.1 (requiring a “certifica te of probable cause that an appealable issue exists[]” for appellate review in a habeas case). Rh ines then sought to invoke our original jurisdiction to issue a certificate, but we denied his motion, concluding he had not demonstrated probable cause that an appeal able issue existed. Rhines’ subsequent petition for certiorari to the United States Supreme Court was unsuccessful. Rhines v. Weber , 571 U.S. 1164, 134 S. Ct. 1002, 187 L. Ed. 2d 852 (2014). [¶5.] In August of 2018, Rhines commence d this civil action in circuit court, seeking declaratory and injunctive relief. Rhines alleges he is not challenging the constitutionality of his death sentence or the death penalty itself. Instead, he claims that a written policy issued by th e South Dakota Department of Corrections (DOC) relating to the execution of a condem ned inmate is invalid because it was not

________________________ (. . . continued) reach our decision in this appeal. See Jenner v. Dooley , 1999 S.D. 20, ¶ 15, 590 N.W.2d 463, 470 (recognizi ng courts can take judi cial notice of public records, including prior judicial proceedings). 3. The Honorable Thomas L. Trimble, Circuit Court Judge, now retired.#29083

-3- promulgated within the rule-making requirements of South Dakota’s Administrative Procedure Act (APA). See SDCL Ch. 1-26. [¶6.] The State moved to dismiss Rhines’ complaint, arguing the DOC policy, known as SDDOC Policy 1.3.D.3 (“the Policy” or “the DOC Policy”), was not subject to APA rule-making requirements. The State cited provisions of the APA, along with other statutory authority and decisional law from this Court and other courts to support its claim that th e Legislature has exempted DOC agency statements like the Policy from the APA’ s requirements of notice and public

comment. [¶7.] The circuit court 4 agreed. After considering the parties’ arguments, it issued a written decision, dismissing Rhines’ complaint, and determining that the Policy was not a rule and therefore not subject to the APA. The court also concluded that the authority of the DOC to carry out a death sentence was derived from SDCL 23A-27A-32 whose provisions, the circuit co urt reasoned, were selfexecuting. [¶8.] As this case was proceeding in circuit court, Rhines’ habeas corpus litigation came to a conclusion on April 15, 2019, with the United States Supreme Court’s decision denying certiorari to co nsider Rhines’ federa l habeas claims. Rhines v. Young , 899 F.3d 482 (8th Cir. 2018), cert. denied, ___ U.S. ___, 139 S. Ct. 1567, 203 L. Ed. 2d. 730 (2019). The successo r to the original sentencing court issued a new warrant of execution ordering the warden of the South Dakota State

4. The Honorable Jon C. Sogn, Circuit Court Judge.#29083

-4- Penitentiary to carry out Rhines’ execution during the week of Sunday, November 3,
2019. [¶9.] Rhines now appeals the circuit court’s order dismissing his APA challenge to the Policy. The case was fully briefed as of October 2, 2019. Citing his imminent execution, Rhines has asked this Court for an order staying the current execution date. The State has resisted th e stay request, arguing this appeal is simply what it believes to be the latest of Rhines’ long-standing efforts to delay his execution. [¶10.] We have reviewed the record and the parties’ submissions and have determined that we can decide the case on its merits without a stay. We therefore address Rhines’ principal issue on appeal, which we restate as follows: Whether the circuit court erred when it determined th e DOC Policy was not subject to the APA’s rule-making requirements and granted the State’s motion to dismiss. Analysis [¶11.] Determining whether the Policy is subject to the APA requires an interpretation of several relevant statutes . This is a legal question for which we accord the circuit court no deference and review de novo. See Mergen v. N. States Power Co. , 2001 S.D. 14, ¶ 4, 621 N.W.2d 620, 621 (quoting State v. Springer-Ertl , 1997 S.D. 128, ¶ 4, 570 N.W.2d 39, 40) (“The construction of a statute and its application to the facts present questions of law, which we review de novo.”). Motions to dismiss under SDCL 15-6-12( b)(5) (Rule 12(b)(5)) test the legal sufficiency of the plaintiff’s claim and necessarily implicate questions of law. Sisney v. Best Inc. , 2008 S.D. 70, ¶¶ 6-8, 754 N.W.2d 804, 807- 09. For this reason, we also#29083

-5- review de novo a circuit court’s determinatio n of a Rule 12(b)(5) motion to dismiss. Id. [¶12.] When confronting a motion to dism iss under Rule 12(b)(5), “a plaintiff’s obligation to provide the ‘grounds’ of his ‘e ntitlement to relief’ requires more than labels and conclusions, and a formulaic re citation of the elements of a cause of action will not do[.]” Id. ¶ 7, 754 N.W.2d at 808 (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 127 S. Ct. 1955, 1964-65, 167 L. Ed. 2d 929 (2007)). Although courts determining the motion are obligated to accept the truth of the complaint’s factual allegations, they “are not bound to accept as true a legal conclusion couched as a factual allegation[.]” Id. (quoting Twombly , 550 U.S. at 555, 127 S. Ct. at 1965). “The pleading must contain somethin g more than a statement of facts that merely creates a suspicion of a legally co gnizable right of action on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Id. (quoting Twombly , 550 U.S. at 555, 127 S. Ct. at 1965). [¶13.] Our rules for construing statutory text are well-settled and may be concisely summarized as follows: The purpose of statutory construc tion is to discover the true intention of the law which is to be ascertained primarily from the language expressed in the statut e. The intent of a statute is determined from what the legislature said, rather than what the courts think it should have sa id, and the court must confine itself to the language used. Words and phrases in a statute must be given their plain meaning and effect. When the language in a statute is clear, certain and unambiguous, there is no reason for construction, and the Court’s only function is to declare the meaning of the statute as clearly expressed. Discover Bank v. Stanley , 2008 S.D. 111, ¶ 15, 757 N. W.2d 756, 761 (quoting Martinmaas v. Engelmann , 2000 S.D. 85, ¶ 49, 612 N.W.2d 600, 611).#29083

-6- Applicability of the APA [¶14.] The APA provides a means by wh ich interested parties can, in some instances, seek declaratory relief concerning an agency’s rules: The validity or applicability of a rule may be determined in an action for declaratory judgment in the circuit court for the county of the plaintiff’s residence, if it is alleged that the rule, or its threatened application, inte rferes with or impairs, or threatens to interfere with or impair, the legal rights or privileges of the plaintiff. SDCL 1-26-14. [¶15.] We have held that SDCL 1-26-14 requires the existence of “an actual case or controversy.” In re Petition for Declarat ory Ruling re SDCL 62-1-1(6) , 2016 S.D. 21, ¶ 8, 877 N.W.2d 340, 343. 5 The statute also presupposes the existence of a rule that is subject to the APA. See, e.g. , Moulton v. State , 363 N.W.2d 405, 406-07 (S.D. 1985) (holding that the absence of an agency rule renders SDCL 1-26-14 inapplicable). Under the provisions of SD CL 1-26-14, a court could, for example, declare whether a putative rule was validly promulgated under the APA or determine whether the rule’s provisions ap ply to a particular set of circumstances, provided that in either instance an actual controversy exists. See, e.g. , Homestake Mining Co. v. Bd. of Envtl. Prot. , 289 N.W.2d 561, 562 (S.D. 1980) (holding that
5. The APA also allows agencies to i ssue their own declaratory rulings without a case or controversy requirement an d based upon hypothetical facts. See In re SDCL 62-1-1(6) , 2016 S.D. 21, ¶ 8, 877 N.W.2d at 343 (citing SDCL 1-26- 15’s requirement for agencies to adopt rule s “for the . . . prompt disposition of petitions for declaratory rulings as to the applicability of any statutory provision or of any rule or order of th e agency”). Inmates, however, may not seek declaratory relief under the provisions of SDCL 1-26-15 , which specifically provides that “[n]o inmate . . . may petition an agency for a declaratory ruling on the applicability of statutory provisions, rules, or orders of the agency.”#29083

-7- SDCL 1-26-14 was the correct procedur e for challenging the validity of administrative rules promulgated under the APA). [¶16.] Here, Rhines’ effort to invoke SDCL 1-26-14 and obtain relief under the APA rests upon the premise that the Po licy is an APA rule. However, we are not convinced the premise is sound. [¶17.] South Dakota’s APA imposes rule-making requirements upon agencies seeking to adopt, amend, or repeal administrative rules. See generally SDCL 1-26- 4. Included among these requirements is an agency’s obligation to publish notice of the proposed rule change and conduct a hearing to allow public comment. Id. Whether an agency’s statement is subj ect to these rule-making requirements requires the interior determination of wh ether the statement is actually a rule. [¶18.] A rule subject to the APA is an “agency statement of general applicability that implements, interprets, or prescribes law, policy, procedure, or practice requirements of any agency.” SDCL 1-26-1(8). However, the Legislature has excluded from this definition cert ain agency statements, including those involving “[i]nmate disciplinary matters as defined in § 1-15-20[.]” SDCL 1-26- 1(8)(g). [¶19.] The text of SDCL 1-15-20 co ntains two distinct legislative determinations of public policy. The firs t paragraph of the statute states that the DOC “at any time may promulgate rules[ ] pu rsuant to chapter 1-26” in five specific#29083

-8- areas, none of which Rhines alle ges is applicable. SDCL 1-15-20. 6 More relevant to our consideration here is the statute’s se cond paragraph, which further provides that the DOC “may prescribe department al policies and procedures for the management of its institutions and ag encies, including inmate disciplinary matters.” Id. [¶20.] Our interpretation of SDCL 1- 15-20 leads us to conclude that the Legislature has limited the DOC’s rule-making authority to the five enumerated topical areas, while also authorizing the DOC to prescribe policies and procedures for discharging its unique responsibilities. These policies and procedures, as they relate to inmate disciplinary matters, are not subject to the APA. [¶21.] This construction of SDCL 1-15- 20 is confirmed by a plain reading of SDCL 1-26-1(8)(g), which specifically ex cludes “inmate disciplinary matters”—a phrase that sounds narrower than it is. In truth, SDCL 1-15-20 defines “inmate disciplinary matters” broadly as “ all matters relating to individual inmate behavior and . . . all matters relating to the maintenance of order, control, and safety within any institution under the supervision of the Department of Corrections.” Reading SDCL 1-26-1(8)(g)’s APA exclusion for “inm ate disciplinary matters” together with the definition contained in SDCL 1-15-20, we conclude that the APA does not apply to “all matters relating to individual inmate behavior” or “all matters relating to the maintenance of order, control, and sa fety within any institution under the supervision of the Department of Corrections.” SDCL 1-15-20.
6. The five areas are: (1) public contact with inmates; (2) inmate release dates; (3) parole standards; (4) out-of-state and federal inmates; and (5) inmate accounts.#29083

-9- [¶22.] Applying these statutory rules here, we determine that the Policy is not a rule subject to the requirements of th e APA. The Policy is entitled “Execution of an Inmate” and states that the DOC will “carry out the execution of an inmate in accordance with chapter 23A-27A[,]” adding that the execution “will be conducted in a professional, humane and dignified mann er.” Among other things, the Policy regulates the number and type of witnesse s an inmate can request, arrangements and procedures for the inmate’s movement s immediately preceding the execution, the inmate’s final visit, and the inmate’s opportunity to make a final statement. These DOC agency determinations fall with in the broad scope of regulating “all matters relating to individual in mate behavior.” SDCL 1-15-20. [¶23.] In addition, the Policy also cont emplates the need for order, control, and safety as part of carrying out the pe nalty of death. For example, the Policy addresses the methods and procedure for the execution itself. In large part, these provisions reflect the DOC’s effort to adhe re to the Unites States Supreme Court’s decision in Baze v. Rees , 553 U.S. 35, 128 S. Ct. 1520, 170 L. Ed. 2d 420 (2008). In Baze , the United States Supreme Court held that the use of lethal injection as a method of execution did not constitute cruel and unusual punishment. Id. at 47, 128 S. Ct. at 1529. A plurality of the Cour t further expressed the view that lethal injection would transgress the Eighth Amendme nt only if it presents a “‘substantial risk of serious harm,’ an ‘objec tively intolerable risk harm.’” Id. at 50, 128 S. Ct. at 1531 (quoting Farmer v. Brennan , 511 U.S. 825, 842, 846, an d n.9, 114 S. Ct. 1970, 1981, 1983 , and n.9, 128 L. Ed. 2d 811 (1994)). The Policy is, th erefore, an effort to ensure order, control, and safety in the actual execution process.#29083

-10- [¶24.] Beyond this, other provisions of the Policy are further directed at ensuring order, control, and safety fo r the benefit of those conducting and witnessing the execution. The Policy pr escribes requisite qualifications and training for those carrying out the individual steps associated with the execution. It also references statutory provisions co ntained in SDCL chapter 23A-27A, which regulate the details of the execution’s time and place, 7 along with the selection of witnesses, standards for witness behavior, and media relations. In essence, the Policy serves as a resource that conso lidates and restates governing statutory provisions and incorporates the DOC’s poli cies and procedures for carrying out an execution. [¶25.] Rhines’ argument that the Policy does not address inmate disciplinary matters overlooks the breadth of its statutory definition. See SDCL 1-15-20

. His related claim that similar statutory APA exemptions for corrections agencies in other states are broader than the definition in SDCL 1-15-20 misses the mark. Even if we were to grant the point, it does not follow that the definition contained in SDCL 1-15-20 is too narrow to encompass the DOC Policy. Indeed, we believe the definition to be broad in its own right and sufficient to include the provisions of the Policy. [¶26.] In addition, Rhines misreads th e other provisions of SDCL 1-15-20 by suggesting courts have the authority to add execution procedures to the list of five specific areas within which the DOC “may pr omulgate rules.” We disagree and, as

7. The execution must take place “within the walls of some building at the state penitentiary[.]” SDCL 23A-27A-32.#29083

-11- indicated above, believe the better readin g of the statute authorizes the DOC to promulgate APA-compliant regulations in the five enumerated areas and otherwise prescribe “policies and procedures for th e management of its institutions and agencies, including inmate disciplinary matters.” Id. [¶27.] Because the Policy does not fit wi thin the APA’s definition of a “rule,” it is not subject to the APA. 8 The circuit court correctly reached the same conclusion, and its decision to dismiss Rhines’ complaint could be affirmed on this basis alone. [¶28.] More fundamentally, though, Rhin es’ action contains an additional limitation—it incorrectly presupposes the Policy is the only basis of the State’s authority to carry out a sentence of death. We, therefore, write further to clarify the nature of the State’s authority in this re gard and provide an additional basis for denying Rhines’ request to enjoin his execution. The State’s Authority to Carry out a Death Sentence [¶29.] “The Constitution allows capital punishment.” Bucklew v. Precythe , ___ U.S. ___, 139 S. Ct. 1112, 1122, 203 L. Ed. 2d 521 (2019) (citing Glossip v. Gross , ___ U.S. ___, 135 S. Ct. 2726, 2731-33, 192 L. Ed. 2d 761 (2015); Baze , 553 U.S. at 47, 128 S. Ct. at 1520). Of course, the fact that the death penalty does not violate the Constitution does not mean that states are obligated to permit it. See id. South
8. The parties and the circuit court also addressed the possibility that the Policy is excluded from SDCL 1-26-1(8)’s defini tion of a rule under the provisions of SDCL 1-26-1(8)(a) , which excludes “[s]tatements concerning only the internal management of an agency and not affecting private rights or procedure available to the public[.]” However, given our determination that the Policy is excluded from the APA under SDCL 1- 26-1(8)(g), it is unnecessary to reach the question of whether it is also ex cluded by another statutory provision.#29083

-12- Dakota, however, does. Acting through its popularly-elected Legislature, South Dakota is among a majority of stat es that allow capital punishment. 9 This case is not about the efficacy of capital punishme nt, which we recognize implicates deeply held convictions among many. 10 [¶30.] The Legislature has enacted detailed statutory standards and requirements for the prosecution of capita l cases and the imposition of the death penalty. See SDCL Ch. 23A-27A. 11 Included within this group is SDCL 23A-27A32, which provides in relevant part: The punishment of death shall be inflicted by the intravenous injection of a substance or substa nces in a lethal quantity. The warden, subject to the approval of the secretary of corrections, shall determine the substances and the quantity of substances used for the punishment of death. An execution carried out by intravenous injection shall be performed by persons trained to administer the injection who are selected by the warden and approved by the secreta ry of corrections.

9. Federal law also permits the imposition of a death sentence. See 18 U.S.C. Ch. 228. 10. Nor does this case concern Rhines’ oppo rtunity to object to the method of his execution. As discussed above, Rh ines unsuccessfully litigated the constitutionality of the State’s lethal in jection protocols in 2013. Though he claims his current action is merely a reflection of his interest in seeing that all executions are carried out in a “professional, humane and dignified manner,” he has not explained how this interest differs in any meaningful way from his interest in ensuring his execution did not violate the Constitution’s prohibition on cruel and unusual punishments. 11. Chapter 23A-27A does not contain any express authority for the DOC to promulgate regulations concerning procedures for carrying out a death sentence.#29083

-13- [¶31.] In addition to identifying the method of execution, 12 the Legislature has also provided explicit authority for th e warden to carry out a death sentence. See SDCL 23A-27A-31 (“The wa rden shall execute the wa rrant of death sentence and execution accordingly.”); SDCL 23A-27A -37.1 (requiring the DOC secretary to appoint a replacement in the event of th e warden’s disability “to carry out the warrant of death sentence and execution and to perform all other duties imposed upon the warden by this chap ter[]”). The DOC Policy at issue in this case does not make the warden’s responsibility to carry out a death sentence any more or less authorized. Indeed, in the absence of th e Policy, the DOC secre tary and the warden would still be obligated to conduct an ex ecution directed by a sentencing court’s

warrant. See SDCL 23A-27A-15 and SDCL 23A-27A-31. [¶32.] Though the context differed, we reached a similar conclusion in Clay v. Weber , 2007 S.D. 45, 733 N.W.2d 278. There we held that any failure to treat policies for charging inmates’ prison accoun ts for the costs of their confinement as APA rules was not consequential. Id. ¶ 12, 733 N.W.2d at 283-84. Even in the absence of the policies, penitentiary offici als were authorized by statute to charge inmates’ accounts for the costs. Id. [¶33.] Here, the same analysis applies. The provisions of SDCL Chapter 23A-27A relating to the methods and proc edures for carrying out a death sentence

12. The text of SDCL 23A-27A-32 wa s amended in 2007 and 2008, but the language prior to 2007 contains the sa me method of execution by lethal injection: “The punishment of death shall be inflicted by the intravenous administration of a lethal quantity of an ultra-short-acting barbiturate in combination with a chemical paralytic ag ent . . . An execution carried out by lethal injection shall be performed by a person selected by the warden and trained to administer the injectio n[.]” 1984 S.D. Sess. L. ch. 181.#29083

-14- are self-executing, and they—not the DOC Policy—vest members of the executive branch with the authority to carry out a capital sentence. To conclude otherwise overlooks the primacy of these statutes and exalts the Policy to preeminence. [¶34.] We affirm. 13 [¶35.] GILBERTSON, Chief Justice, JENSEN and SALTER, Justices, and COMER and SHELTON, Circuit Court Judges, concur. [¶36.] COMER, Circuit Court Judge, si tting for KERN, Justice, disqualified. [¶37.] SHELTON, Circuit Court Judg e, sitting for DEVANEY, Justice, disqualified.

13. Given our disposition of this appeal on its merits, Rhines’ motion for a stay is rendered moot and denied on that basis.