In Re: Ohio Execution Protocol Litigation

Filing 910

DECISION AND ORDER DISSOLVING PRELIMINARY INJUNCTION PENDENTE LITE. Signed by Magistrate Judge Michael R. Merz on 1/5/2017. (kpf)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION AT COLUMBUS
In re: OHIO EXECUTION
PROTOCOL LITIGATION,
:

Case No. 2:11-cv-1016

Chief Judge Edmund A. Sargus, Jr.
Magistrate Judge Michael R. Merz
This Order relates to Plaintiffs Phillips,
Tibbetts, and Otte.

DECISION AND ORDER DISSOLVING PRELIMINARY
INJUNCTION PENDENTE LITE

This § 1983 capital case is before the Court upon notice from the Sixth Circuit Court of
Appeals of its decision in Fears v. Kasich, ___ F.3d ___, 2016 U.S. App. LEXIS 23424 (6th Cir.
Dec. 30, 2016).
On December 19, 2016, in light of the impending preliminary injunction proceeding in
this case, this Court stayed the executions of Plaintiffs Phillips, Tibbetts, and Otte pendente lite
(ECF No. 834). It found that the interpretation of Judge Frost’s October 2015 Protective Order
(ECF No. 629) was properly before the Sixth Circuit on interlocutory appeal under 28 U.S.C. §
1292(b) and that proper respect for that court’s decisional process required a stay. The Court,
hopefully, evinced its respect for the execution dates set by the Ohio Supreme Court (and re-set
by reprieve by Governor Kasich), and stated its “sole intention is to stay the execution of Phillips
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beyond January 12, 2017, if, but only if, the decision in Fears v. Kasich is not handed down in
time to apply it to this case. . .. If a decision is issued in Fears in time to apply it before the
preliminary injunction hearing set for January 3, 2017 [footnote omitted], this Court will
immediately dissolve the stay, apply Fears, and render any interlocutory appeal moot.” (ECF
No. 834, PageID 24751).
The State Defendants did file an interlocutory appeal as permitted under 28 U.S.C. §
1291 (ECF No. 841; assigned 6th Cir. Case No. 16-4737). After the Fears decision, Defendants
advised of their intention to move to lift the stay and dismiss the appeal voluntarily.1 Plaintiffs
agree to that dismissal, while reserving their right to seek further review of the Fears decision
itself.2 On January 4, 2017, the Sixth Circuit dismissed the appeal.
Accordingly, the Preliminary Injunction Pendente Lite (ECF No. 834) is DISSOLVED.
This Court had anticipated that the Sixth Circuit might offer interpretations of Judge
Frost’s Protective order or Ohio Revised Code § 2949.221-222 which, whether formally holding
or dictum, would cabin this Court’s further action on privilege or protective order questions.
That did not happen. In Fears the Court upheld Judge Frost’s Order, but did so narrowly. For
example, Judge Siler wrote for the majority:
The parties do not brief the implications of this new protocol on
the protective order. We assume without deciding that the new
protocol falls within the scope of the protective order. This
assumption is not binding on the district court, and the district
court maintains discretion to modify the protective order as
circumstances dictate.
2016 U.S. App. LEXIS at *5, n.2.

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4:36 P.M. 12/30/2016 email from Associate Assistant Attorney General Jocelyn Lowe.
5:52 P.M. 12/30/2016 email from Assistant Federal Public Defender Erin Gallagher Barnhart.

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In dissent, Judge Stranch noted there were a number of unresolved disputes about the
scope and application of the Protective Order but also wrote:
The parties have also presented a number of disputes about the
scope and application of certain provisions of the order.
Application issues include matters such as discovery that is now
withheld but was previously routinely available to Plaintiffs.
Disputes on scope include matters such as Plaintiffs' objection that
Defendants have expansively interpreted their rights under the
order to refuse to provide information during the time frame before
the drug protocol was amended on October 7, 2016. Simply put, a
number of difficult disputes remain. Our remand entrusts the court
below with interpreting the provisions and scope of the order and
resolving those disputes.
Id. at *31. Thus although the panel was divided on the merits of the appeal, it unanimously
agreed further interpretation of the Protective Order and related issues was properly a matter for
this Court.
While the appeal in Fears was pending, this Court concluded on December 20, 2016, it
could no longer wait to make privilege rulings until a decision was handed down and therefore
made “the following rulings on questions of privilege which have been raised in this case,
subject to a revision in the event of an inconsistent ruling in Fears.” (ECF No. 838, PageID
24913). Upon review, the Court finds none of those rulings on claims of privilege to be
inconsistent with the majority opinion in Fears. Thus those rulings will stand unless revised on
motion of a party.

January 5, 2017.
s/ Michael R. Merz
United States Magistrate Judge

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