IN THE SUPERIOR COURT OF FULTON COUNTY STATE OF GEORGIA WARREN LEE HILL, JR., Plaintiff, v.

BRIAN OWENS, in his capacity as Commissioner of the Georgia Department of Corrections, BRUCE CHATMAN, in his capacity as Warden of the Georgia Diagnostic Prison, SAM OLENS, in his capacity as Attorney General of the State of Georgia, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

Civil Action Case No. 2013CV233771

To hold the political branches have the power to switch the Constitution on or off at will . . . would permit a striking anomaly in our tripartite system of government, leading to a regime in which Congress and the President, not this Court, say what the law is. Boumediene v. Bush, 553 U.S. 773, 765 (2008) (quoting Marbury v. Madison, 1 Cranch 137, 177 (1803)). The generation that made the nation thought secrecy in government one of the instruments of Old World tyranny and committed itself to the principle that a democracy cannot function unless the people are permitted to know what their government is up to. U.S. Dept. of Justice v. Reporters Committee For Freedom of Press, 489 U.S. 749, 772-73 (1989) (quoting EPA v. Mink, 410 U.S> 73, 105 (1973) (emphasis original). A government operating in the shadow of secrecy stands in complete opposition to the society envisioned by the Framers of our Constitution. Detroit Free Press v. Ashcroft, 303 F.3d 681, 710 (6th Cir. 2002).

PLAINTIFF WARREN LEE HILL, JR.S RESPONSE IN OPPOSITION TO DEFENDANTS SPECIAL APPEARANCE MOTION TO DISMISS Plaintiff Warren Lee Hill, Jr., through counsel, submits this Response to the Attorney Generals Special Appearance Motion to Dismiss (AGs Motion). The AGs Motion suffers from the same misunderstanding of basic constitutional principles that characterize the Lethal Injection Secrecy Law the AGs Office and Department of Corrections shepherded to enactment. The AGs Motion, moreover, is disingenuous in its repeated complaint that Mr. Hill has improperly delayed raising his challenge to the Lethal Injection Secrecy Law, even though Mr. Hill filed his complaint eleven days after the law took effect, nine days after the state obtained a warrant of execution (at the end of the day on July 3, 2013, right before a long holiday weekend), and a mere two days after the Georgia Department of Corrections, in reliance on the challenged statute, refused to provide material information requested under the Open Records Act regarding the source of the pentobarbital the State of Georgia intends to use to kill Mr. Hill.

This Brief will address the more egregious of the AGs Motions errors and misstatements.1 I. The Attorney Generals Justification for the Lethal Injection Secrecy Law Is Unsupported and Baseless, and Establishes that the Law Was Enacted to Suppress the Free Exchange of Ideas in our Free Society. [S]peech concerning public affairs is more than self-expression; it is the essence of self-government. Garrison v. Louisiana, 379 U.S. 64, 7475, 85 S.Ct. 209, 216, 13 L.Ed.2d 125 (1964). The Attorney General candidly concedes, both in his motion and at the hearing conducted on July 15, 2013, that the purpose of the Lethal Injection Secrecy Law was to protect its potential sources of lethal injection drugs from the

The AGs Motion is not always accurate in its discussion of the case law. It states, for instance, that the Eleventh Circuit Court of Appeals has determined that Georgias substitution of the anesthetic pentobarbital for sodium pentothal, did not constitute a significant alteration in the lethal injection protocol. AGs Motion, at 6 (citing DeYoung v. Owens, 6746 F.3d 1319 (11th Cir. 2011); Powell v. Thomas, 643 F.3d 1300( 11th Cir. 2011); and Valle v. Singer, 655 F.3d 1223, 1226 (11th Cir. 2011)). What the AGs Motion does not disclose is that the Eleventh Circuit has since clarified that [w]hether a significant change has occurred in a states method of execution is a fact-dependent inquiry, which we have treated as such in each of our recent cases addressing the lethal injection protocols of Alabama, Georgia and Florida. Arthur v. Thomas, 674 F.3d 1257, 1260 (11th Cir. 2012) (emphasis added). In Arthur, the court held that the district court had erred in dismissing the lethal injection suit as time-barred because Arthurs complaint and supporting affidavits are sufficiently different from the complaint filed in [Powell and DeYoung]. Id. at 1261. Significantly, the court observed that it would be improper [t]o read our circuit decisions in Powell, DeYoung, and Valle as holdingno matter what new facts allege or new evidence revealsthat Alabamas, Georgias and Floridas substitutions of pentobarbital for sodium thiopental is not a significant change in their execution protocols is to ignore the reality that scientific and medical evidence that exists today may differ from that which new scientific and medical discoveries and research reveal tomorrow. Id. at 1260.

vicissitudes of free-market capitalism by suppressing the free exchange of information and ideas permitted in our free society. See AGs Motion, at 4, 30-32; 7/15/13 Tr., at 46-48. As the Attorney General explains it, the Lethal Injection Secrecy Law protects the right of innocent individuals to privacy and to be free from harassment,2 as revelation of the identifying information of a pharmacy or doctor involved in a lethal execution [sic] has and could prospectively expose that person or entity to potential harassment, bullying, intimidation, and harm, and crafted a legislative remedy which is no broader than required to protect the interests of both parties and preserve the status quo. AGs Motion at 4, 31. The only so-called harassment the motion identifies consists of a portion of an affidavit filed in a Florida law suit in which a Dr. David Nicholl explained that the Danish pharmaceutical company Lundbeck chose not to sell lethal injection drugs to correctional facilities due to the ethical concerns of its stakeholders and consumer boycotts of its products.3 AGs Motion at 30-31.

The AGs Motion does not explain what privacy rights corporations have, though the United States Supreme Court has noted that one has not been recognized. See FCC v. AT&T, 131 S. Ct. 1177, 1183-84 (2011). Beyond the suggestion that a European pharmacy was persuaded to change its policy by the actions of its European stake holders and customers, the Attorney General has not presented an iota of evidence to support the parade of horribles (potential harassment, bullying, intimidation, and harm) it claims justifies the wide curtain of secrecy that now hides the states method for carryingout its execution: AGs Motion at 31.
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Nor does the legislative history of the law reflect that any evidence was submitted to establish that compounding pharmacies would be harmed by the public disclosure of their identities, the provision of such information to courts of law and litigants, or to otherwise justify such an unprecedented closure of the courthouse doors on the issue of the constitionality of the States method of execution.4 As explained by the Attorney General, the Lethal Injection Secrecy Law was enacted specifically to protect the profitability of supplying drugs for the purpose of execution by suppressing free speech and preventing citizens from making informed decisions about how they want to spend their money. This justification itself implicates the First Amendment. See, e.g., Pacific Gas & Elec. Co., 475 U.S.

HB 122 began as a bill that addressed the Sex Offender Registration Review Board In the Senate, an amendment was tacked on that would preclude the dissemination of information regarding the identity of those businesses and individuals associated with the States procurement of lethal injection drugs, including information regarding their qualifications and the source of raw materials. No evidence was submitted at the committee hearings or on the floors of either the House or Senate to justify the necessity of the law. See, e.g., video of floor debate in the Senate on March 22, 2013 (Day 37 PM2 at http://www.gpb.org/lawmakers/2013/day-37) and in the House on March 26, 2013 (Day 39 PM1 at http://www.gpb.org/lawmakers/2013/day-39). In the House, on March 26, 2013, the sponsor of the amended HB 122, explicitly misled fellow representatives by claiming that the amendment did not strip the judiciary of its oversight of requests for the secret information. The bill passed shortly thereafter with no clarification. An amendment to ensure judicial oversight was defeated in the Senate on March 22, 2013.

1, 8 (1986) ([T]he First Amendment protects the public's interest in receiving information.); Central Hudson Gas & Electric Corp v. Public Service Commn of N.Y., 447 U.S. 557, 562 (1980) ([P]eople will perceive their own best interests if only they are well enough informed, and the best means to that end is to open the channels of communication, rather than to close them. . . . . . . [T]he First Amendment presumes that some accurate information is better than no information at all. (citations and quotations omitted); Mills v. Alabama, 384 U.S. 214, 218 (1966) ([T]here is practically universal agreement that a major purpose of [the First] Amendment was to protect the free discussion of governmental affairs.); Abramson v. Gonzalez, 949 F.2d 1567, 1578 (11th Cir. 1992) (The Supreme Court has recognized the public's right to receive truthful commercial information under the first amendment, in addition to the speaker's right to disseminate information helpful to his or her commercial interests.). To enforce such a content-based restriction on free speech, the state must show that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end. Perry Educ. Assn v. Perry Local

Educators Assn., 460 U.S. 37, 45 (1983). The The Lethal Injection Act certainly is not narrowly tailored to achieve a compelling state interest (the economic protection of pharmacies!) and thus must fall on First Amendment grounds alone. 6

Moreover, it fails to satisfy the greater protections afforded free speech under Georgias Constitution. See, e.g., Grady v. Unified Government of Athens-Clarke County, 289 Ga. 726, 728 (2011) (noting that under the First Amendment, the government would have to prove that its law is narrowly tailored to serve a significant government interest and leaves open ample alternatives for communication, whereas, under the state constitution, it must show that the regulation [is] the least restrictive means of furthering the governments significant interests, while still leaving open ample alternatives to communicate). See Ga. Const. Art. I, V (No law shall be passed to curtail or restrain the freedom of speech or of the press. Every person may speak, write, and publish sentiments on all subjects but shall be responsible for the abuse of that liberty.). II. The Attorney General Admits that the Lethal Injection Secrecy Law Prevents The Executives Disclosure of Information Regarding Execution Drugs on Pain of Criminal Prosecution and, Regardless, Walls This Court Off From the Judicial Oversight of Georgia Executions. It is beyond the power of the General Assembly to specify what evidence can or can not be introduced to prove just and adequate compensation. If they have such power they could exclude all evidence and thus destroy the Constitution and private property also. If they can by the 1966 Act exclude evidence held judicially to be relevant and admissible . . ., they can render the judiciary impotent. Calhoun v. State Highway Dept., 223 Ga. 65, 68 (1967).

The AGs Motion states in no uncertain terms that the statute strips the executive of the ability to disclose any information the Lethal Injection Secrecy Law has defined as a confidential state secret even under seal to the Court and that the Court has no power to demand or consider that information unless it first strikes the statute as unconstitutional: The statute does not create any privilege on the part of the Department of Corrections; instead, it prohibits disclosure of information subject to misdemeanor penalties. The statute also does not create any conflict in the statutory authority of the executive and the authority of the court to enforce the Constitution. The Department of Corrections has been stripped by the statute of any authority to reveal the identifying information, and the court is still at liberty to determine whether the statute violates the Constitution in a proceeding properly and timely brought before the court. Although the court may not order release of the information under the statute as written, if it finds the statute itself is unconstitutional, it may order whatever remedy it deems appropraiate. But before doing so, it must first find it violates the Constitution . . . . AGs Motion, at 26-27 (emphasis added). In our tripartite government, it is the judiciarys prerogative, and not the executives, to determine what information is relevant in the proceedings before it. See, e.g., Tanner v. State, 274 Ga. 240, 240 (2001) (As a general rule, the admission or exclusion of evidence on the grounds of relevancy lies within the sound discretion of the trial court, whose decision will not be disturbed without a showing of a clear abuse of that discretion.). 8

Further, it is the judiciarys role to determine the law. See, e.g., McDaniel v. Thomas, 248 Ga. 632, 633 (1981) (Judicial review of legislative enactments is central to our system of constitutional government and deeply rooted in our history.) (citing Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)). The legislative, judicial, and executive powers shall forever remain separate and distinct.... GA CONST. Art. I, II. The AGs frank admissions regarding the Courts absolute inability to review the information rendered secret under the statute without first striking the statute as an unconstitutional exercise of the Legislatures power makes clear that the Lethal Injection Secrecy Law violates the separation of powers enshrined in Georgias constitution and is accordingly void. See, e.g., Northside Manor, Inc. v. Vann, 219 Ga. 298, 392 (1963) (statute violating separation of powers held void). III. The Attorney Generals Position Is Inherently Self-Contradictory, as He Contends Both that the Secret Information Mr. Hill Seeks Is Trivial and that Mr. Hill Cannot Show Harm Because His Claim of Potential Harm from the Use of a Compounding Pharmacy Is Wholly Speculative While Withholding Precisely the Information Needed to Ascertain the Harm. The AGs argument is inherently contradictory. On the one hand, he urges that Mr. Hill cannot establish irreparable harm in the lethal injection execution context under the test established by the United States Supreme Court decisions in

Brewer v. Landrigan, 131 S. Ct. 445 (2010) and Baze v. Rees, 553, U.S. 35, 49-50 (2008), because he has presented nothing but speculation about what could happen and what is possible, not even probable. AGs Motion at 12. On the other, he contends that the secret information has no bearing on these claims because it relates solely to constitutionally-irrelevant, personal identification information about the source of the drugs. AGs Motion at 12, 32. Bazes definition of the Eighth Amendment claim determines what is relevant to prove it. Baze requires a capital litigant to establish that 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. Baze, 553 U.S., at 50. The AG concedes as much, observing that Mr. Hill must show that it is sure or very likely that he will exerpience needless suffering when he is executed. AGs Motion, at 12. Mr. Hill has presented evidence that the use of an unknown compounding pharmacy raises a significant risk of a botched and painful execution because of the likelihood of contamination of the both the source materials and the finished product, the substantial possibility that contaminated mateials will produce a subpotent or super-potent dose of the lethal injection drug and a host of other problems that the recent investigation of compounding pharmacies have revealed. 10

See App. W. That Mr. Hill cannot be more specific is a direct result of the fact that the information needed to determine whether these potential problems are of actual concern in this case and pose a substantial risk of harm under the Eighth Amendment is being kept hidden by the state. CONCLUSION For the foregoing reasons, Mr. Hill respectfully requests that the Court deny the Defendants Special Appearance Motion to Dismiss. Dated this 17th day of July, 2013. Respectfully submitted,

__________________________ Brian Kammer (Ga. 406322) Robyn A. Painter (Ga. 110108) Georgia Resource Center 303 Elizabeth Street, NE Atlanta, GA 30307 404-222-9202 COUNSEL FOR MR. HILL

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IN THE SUPERIOR COURT OF FULTON COUNTY STATE OF GEORGIA WARREN LEE HILL, JR., Plaintiff, v. BRIAN OWENS, in his capacity as Commissioner of the Georgia Department of Corrections, BRUCE CHATMAN, in his capacity as Warden of the Georgia Diagnostic Prison, SAM OLENS, in his capacity as Attorney General of the State of Georgia, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

Civil Action Case No. 2013CV233771

CERTIFICATE OF SERVICE This is to certify that I have caused to be served a copy of the foregoing document this day by electronic mail in pdf format on counsel for Defendants at the email addresses below: Sam Olens Attorney General of Georgia Joseph Drolet jdrolet@law.ga.gov Office of the Attorney General 40 Capitol Square, SW Atlanta, GA 30334 Robert E. Jones Jonesr02@dcor.state.ga.ua General Counsel Bryan Wilson wilsob06@dcor.state.ga.us

Assistant Counsel Georgia Department of Corrections Legal Office State Office South 300 Patrol Road Forsyth, GA 31029 This the 17th day of July, 2013.

_______________________ Attorney