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Rhines v. South Dakota Department of Corrections

Supreme Court of South Dakota

October 25, 2019

CHARLES RUSSELL RHINES, Plaintiff and Appellant,
SOUTH DAKOTA DEPARTMENT OF CORRECTIONS and MIKE LEIDHOLT, Secretary, South Dakota Department of Corrections, Defendant and Appellee.



          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.

          PER CURIAM

         [¶1.] Charles Rhines is a prisoner awaiting 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 capital sentences. The circuit court granted the State's motion to dismiss, and Rhines appeals. We affirm.


         [¶2.] Rhines killed Donnivan Schaeffer 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 Rhines' 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 sentence in state and federal courts. Among these cases was a direct challenge to the State's lethal injection protocols under the current law and under the law as it existed at the time of Rhines' conviction and sentence.[2] In an amended petition for a writ of habeas corpus, Rhines argued that the State's protocols violated due process 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 written decision, the circuit court[3] reviewed the parties' evidence against settled constitutional principles, made detailed findings of fact, and concluded the State's lethal injection protocols did not constitute cruel and unusual punishment. The circuit court denied Rhines' request for a certificate of probable cause, which would have allowed an appeal to this Court. See SDCL 21-27-18.1 (requiring a "certificate of probable cause that an appealable issue exists[]" for appellate review in a habeas case). Rhines 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 appealable 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 commenced 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 the South Dakota Department of Corrections (DOC) relating to the execution of a condemned inmate is invalid because it was not 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 the 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 court reasoned, were self-executing.

         [¶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 consider Rhines' federal 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 successor to the original sentencing court issued a new warrant of execution ordering the warden of the South Dakota State 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 the 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 the DOC Policy was not subject to the APA's rule-making requirements and granted the State's motion to dismiss.


         [¶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 review de novo a circuit court's determination of a Rule 12(b)(5) motion to dismiss. Id.

         [¶12.] When confronting a motion to dismiss under Rule 12(b)(5), "a plaintiff's obligation to provide the 'grounds' of his 'entitlement to relief' requires more than labels and conclusions, and a formulaic recitation 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 something more than a statement of facts that merely creates a suspicion of a ...

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