Moeller v. Weber

Filing 431

ORDER denying without prejudice 408 Motion for order to open certain sealed documents ; denying 420 Motion for revision of order to unseal; denying 429 Motion to Dismiss and close file. Defendants shall submit a hard copy of each sealed document to the Court with the redactions as specified above to be in brackets for the Court's in camera review. Signed by U. S. District Judge Lawrence L. Piersol on 9/30/13. (DJP)

UNITED STATES DISTRICT COURT

FILED

SEP 30 2013

DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION

~~

******************************************************************************
*
DONALD E. MOELLER,
CIV 04-4200
*
*
Plaintiff,
*

*

vs.
*
ORDER
*

DOUGLAS WEBER, Warden,
*

South Dakota State Penitentiary,
*

DENNIS KAEMINGK, Secretary of
*

the South Dakota Department of
*

Corrections in his official capacity,
*

and DOES 1-20, unknown employees or
*

agents of the South Dakota Department
*

of Corrections,
*

*

Defendants.
*

*

******************************************************************************
The American Civil Liberties Union (ACLU) filed a Notice of Appearance on October 24,
2012, but has never filed a Motion to Intervene nor a request to appear as amicus curiae or in any
other capacity. Donald Moeller was subsequently executed on October 30, 3012. Defendants have
objected that the ACLU has no standing. (Doc. 429 filed September 5,2013.) It is true that at this
point the ACLU has no standing and the Motion for Order to Open Certain Sealed Documents filed
by the ACLU is therefore denied without prejUdice. Jones v. Clinton, 206 F.3d 811 (8th Cir. 2000).
However, prior to the filing ofthe ACLU motion the Court had indicated in open court that some of
the documents would be unsealed.

Defendants also argued in Doc. 429, Defendants' Motion to Dismiss and Close File, that the
Court no longer has jurisdiction as there is no longer a case or controversy. The Court has the
inherent authority and obligation to continue to complete what it announced in open Court on

October 22, 2012, that being that some of the documents in the court file would be unsealed.
Accordingly, that portion ofDefendants' Motion is denied. The unsealing ofthe judicial documents
in this file is a continuing matter of public interest and concern both in South Dakota and elsewhere
especially due to the fact that the Court file involves the carrying out ofan execution. There are more
persons to be executed under South Dakota law and the protocol and the method of execution
remains a heated area of public policy, concern, and debate throughout South Dakota and the rest
of the United States. Donald Moeller is now gone but a strong public interest remains in the
documents in the court file. Due to lack of standing, the Motion (Doc. 408) filed by the ACLU is
denied without prejudice. The merits of that Motion have not been adjudicated.

The Court has the same position as the Court stated in open court on October 22,2012, that
being that some documents should be unsealed. Some ofthe documents to be unsealed will have to
be partially redacted in order to comply with SDCL 23A-27A-3Ll, as amended in 2013.

The Defendants have urged a mosaic theory with the idea being that by taking different pieces
of unsealed information the identity of executioners, compounding pharmacist, and manufacturer
could be deduced. The Court does not agree with that argument except to the extent that the
qualifications of persons need not be so specific that they could result in identification of execution
team members or the compo unding pharmacist. The identity 0 f the manufacturer will continue to be
kept under seal.

The Court is unaware of any court decision which holds that a statute similar to SDCL
23A-27 A-31.2 is unconstitutional or otherwise invalid. See, however, Phelps-Roper v. Koster, 713
F.3d 942, 949 (8th Cir. 2013) "[A]lthough a duly enacted statute normally carries with it a
presumption of constitutionality, when a regulation allegedly infringes on the exercise of first
amendment rights, the statute's proponent bears the burden of establishing the statute's
constitutionality." (citations omitted). For the purposes ofthis unsealing, however, the Court is going
to presume that SDCL 23A-27A-31.2 is constitutional and the statute will be applied. The Court
interpreted SDCL 23A-27 A-31.2 in a manner to support its constitutionality during the proceedings
2

in this case when it allowed discovery by the attorneys for Plaintiff Moeller of the persons
administering the intravenous injection and ofthe compounding pharmacist. IfSDCL 23A-27 A-31.2
were to be interpreted to prevent any such discovery, then surely constitutional issues would be
presented as such an interpretation could prevent the presentation of a full and adequate defense to
the protocol for or the actual method ofthat execution. It may be that any constitutional challenge,
if made, to SDCL 23A-27A-31.2 should take place in another case as there are other death penalty
cases pending in South Dakota. See, for example, Rhines v. Young, CIV 00-5020 pending in this
Court (Ex. 4 to Doc. 429).

Defendants' earlier suggestion on redaction, prior to their Motion to Dismiss the case and
leave all sealed documents sealed, have been considered but instead the Court is going to have the
Defendants submit a hard copy of each sealed document to the Court with the redactions on each
document to carry out the directions contained in this Order. Each redaction shall be in brackets so
that the Court in its in camera review can see what is proposed to be redacted. The clerk of this
Court is currently installing a CMlECF test data base to insure that sealed documents remain sealed
and the following procedure will be used: after the Court's in camera review the documents that are
redacted and unsealed will be attached as redacted by the Court to the same sealed docket number,
so that the sealed and the unsealed document will be at the same docket entry. Accordingly,
IT IS ORDERED:
1.

That the Motion for Order to Open Certain Sealed Documents, Doc. 408,
filed by the ACLU is denied without prejudice.

2.

That Defendants' Motion for Revision of Order to
denied.

3.

That Defendants' Motion to Dismiss and Close File, Doc. 429, is denied.

4.

That the Defendants shall submit a hard copy of each sealed document to the
Court with the redactions as specified above to be in brackets for the Court's
in camera review.

3

Unsea~

Doc. 420, is

Dated this

~YOfSeptember,

2013.

BY THE COURT:

ATTEST:

United States District Judge

JOSEP~ Clerk
BY:

y~~
DEPUTY

4