No. ____
IN THE

Supreme Court of the United States
_________

CHARLES RUSSELL RHINES,
Petitioner,
v.
SOUTH DAKOTA DEPARTMENT OF CORRECTIONS, MIKE
LEIDHOLT, SECRETARY, SOUTH DAKOTA DEPARTMENT
OF CORRECTIONS, AND DARIN YOUNG AS WARDEN OF
THE SOUTH DAKOTA STATE PENITENTIARY,
RESPONDENTS.
_________
APPLICATION FOR STAY OF EXECUTION
CAPITAL CASE: IMMINENT EXECUTION
November 4, 2019 at 1:30 PM (Central)
_________
ELLIOT H. SCHERKER
GREENBERG TRAURIG, P.A.
333 SE 2nd Ave.
Suite 4400
Miami, FL 33131
DANIEL R. FRITZ
BALLARD SPAHR LLP
101 South Reid St.,
Suite 302
Sioux Falls, SD 57103

CAROLINE J. HELLER
Counsel of Record
GREENBERG TRAURIG, LLP
200 Park Ave.
New York, NY 10166
hellerc@gtlaw.com
(212) 801-2165

Counsel for Petitioner

 TABLE OF CONTENTS
INTRODUCTION ........................................................1
PROCEDURAL AND FACTUAL
BACKGROUND................................................2
REASONS TO STAY THE EXECUTION ..................6
I.

RHINES WILL BE IRREPARABLY
HARMED IF THE STATE OF SOUTH
DAKOTA IS PERMITTED TO
EXECUTE HIM IN VIOLATION OF
HIS RIGHT TO SELECT THE
METHOD OF EXECUTION THAT IS
GUARANTEED BY SOUTH DAKOTA
LAW. .................................................................7

II.

SOUTH DAKOTA IS DENYING
PETITIONER DUE PROCESS OF LAW
IN REFUSING TO EXERCISE HIS
STATE-LAW RIGHT TO CHOOSE
THE MEANS OF HIS DEATH. .......................8

III.

SOUTH DAKOTA’S INVOCATION OF
RES JUDICATA TO BAR RHINES’S
CLAIM IS AN UNCONSTITUTIONAL
APPLICATION OF A STATE-LAW
DOCTRINE. .................................................... 13

CONCLUSION .......................................................... 18

 TABLE OF AUTHORITIES
Federal Cases
Bagley v. Rogerson,
5 F.3d 325 (8th Cir. 1993) .................................... 12
Barefoot v. Estelle,
463 U.S. 880 (1983) ................................................ 6
Bucklew v. Precythe,
139 S. Ct. 1112, 203 L. Ed. 2d 521
(2019) ...................................................................... 7
Cromwell v. Cnty. of Sacramento,
94 U.S. 351 (1876) ................................................ 14
Fayerweather v. Ritch,
195 U.S. 276 (1904) ........................................ 14, 15
Glossip v. Gross,
135 S. Ct. 2726, 192 L. Ed. 2d 761
(2015) ...................................................................... 7
Hicks v. Oklahoma,
447 U.S. 343 (1980) .............................................. 11
Hill v. McDonough,
547 U.S. 584 (2006) ................................................ 6
Kentucky Dept. of Corr. v. Thompson,
490 U.S. 454 (1989) .............................................. 11
Logan v. Zimmerman Brush Co.,
455 U.S. 422 (1982) .............................................. 13
Mathews v. Eldridge,
424 U.S. 319 (1976) .............................................. 11
Nelson v. Campbell,
541 U.S. 637 (2004) ................................................ 6

 Nken v. Holder,
556 U.S. 418, 129 S.Ct. 1749, 173
L.Ed.2d 550 (2009) ................................................. 7
Ohio Adult Parole Auth. v. Woodard,
523 U.S. 272 (1998) .............................................. 12
Richards v. Jefferson Cnty., Ala.,
517 U.S. 793 (1996) .............................................. 14
Russell v. Place,
94 U.S. 606 (1877) ................................................ 14
Taylor v. Sturgell,
553 U.S. 880 (2008) .............................................. 13
Wainwright v. Booker,
473 U.S. 935 (1985) ................................................ 7
Woodson v. North Carolina,
428 U.S. 280, 96 S.Ct. 2978, 49
L.Ed.2d 944 (1976) ................................................. 7
State Cases
Smith v. State of Montana, Department
of Corrections,
No. BDV-2008-303, 2015 WL
5827252 (Mont. Dist. Oct. 6, 2015) ...................... 11
State Statutes
SDCL § 23A-27A-32 .................................. 2, 3, 8, 9, 12
SDCL § 23A-27A-32.1 ................... 2, 3, 8, 9, 10, 12, 17
Constitutional Provisions
U.S. Const. amend. XIV, § 1 ..................................... 12

 Other Authorities
18 Charles Alan Wright et al., Federal
Practice and Procedure § 4420 (2d
ed. 2002) ............................................................... 14
http://leucadiapharma.com/wp-content
/uploads/2018/02/Pentobarbital_PI_A
rt_Clean.pdf............................................................ 5
https://www.sagentpharma.com/wpcont
ent/uploads /2017/11
/Pentobarbital_PI-Revised.pdf............................... 5
Restatement (Second) of Judgments §
27 (1982) ............................................................... 14

 1
APPLICATION FOR STAY OF EXECUTION
_________
INTRODUCTION
To the Honorable Justice Neil Gorsuch, Circuit
Justice for the Eighth Circuit:
Petitioner Charles Russell Rhines respectfully requests a stay of his execution, presently scheduled for
November 4, 2019 at 1:30 PM Central time.
On October 22, 2019, Petitioner filed a Complaint,
seeking declaratory and injunctive relief, in the South
Dakota Circuit Court for the Second Judicial Circuit,
together with an Application for a Preliminary Injunction, Temporary Restraining Order and Stay of Execution (“Application”). Following a hearing on October 29, 2019, Petitioner filed a supplemental memorandum of law. On October 31, 2019, the circuit court
issued a decision denying the Application. Petitioner
filed a Notice of Appeal in the circuit court that same
day. On November 1, 2019, Petitioner filed a Motion
for Stay of Execution and Appellate Brief in the Supreme Court of the State of South Dakota.
On November 4, 2019, the South Dakota Supreme
Court denied Petitioner’s motion for stay pending disposition of his appeal. The court has not issued a decision on the appeal as of the filing of this application.
This stay application is lodged in the event that the
South Dakota Supreme Court’s ultimate disposition is
adverse and is requested so that the Court can protect
its jurisdiction. 1

1

Immediately upon the issuance of a merits decision, Petitioner will
file his certiorari petition in this Court.

 2
If there is an adverse disposition, the decision will
likely give rise to the following questions presented:
Under the law of South Dakota, Petitioner in
this capital case has a statutory right to elect to be
executed under the drug protocol in effect at the time
of his conviction and sentence, rather than the current
execution protocol. The State has refused to honor Petitioner’s choice. The Questions Presented are:
Does Petitioner have a life and liberty interest in
the choice given him such that the refusal to honor his
choice violates due process?
Did South Dakota courts violate due process
when it relied upon an extreme misapplication of res
judicata law to refuse to adjudicate the merits of Petitioner’s claims?
This Court should stay Rhines’s execution to resolve those questions.
PROCEDURAL AND FACTUAL BACKGROUND
Rhines has been sentenced to death by the State of
South Dakota, with an execution warrant setting his
execution for Monday, November 4, at 1:30 Central
time.
Section 23A-27A-32.1 South Dakota Codified Laws
(“SDCL”) provides that:
Any person convicted of a capital offense or sentenced to death prior to July 1, 2007 may choose to be
executed in the manner provided in § 23A-27A-32 or
in the manner provided by South Dakota law at
the time of the person’s conviction or sentence.
The person shall choose by indicating in writing to the
warden not less than seven days prior to the sched-

 3
uled week of execution the manner of execution chosen. If the person fails or refuses to choose in the time
provided under this section, then the person shall be
executed as provided in § 23A-27A-32.
SDCL § 23A-27A-32.1 (emphasis added).
Rhines was sentenced to death on January 29,
1993. At that time, South Dakota law provided, in
pertinent part, that “[t]he punishment of death shall
be inflicted by the intravenous administration of a lethal quantity of an ultra-short-acting acting barbiturate in combination with a chemical paralytic agent
and continuing the application thereof until the convict is pronounced dead by a licensed physician according to accepted standards of medical practice. SL
1984, ch. 181, codified at SDCL 23A-27A-32.1 (1984).
In 2007, the South Dakota Legislature amended
the law to change the drug protocol from the combination of “an ultra-short-acting acting barbiturate in
combination with a chemical paralytic agent” to “a
substance or substances in lethal quantity,” as selected by the warden and subject to approval by the
Secretary of the Department of Corrections. SDCL
23A-27A-32 (2007). However, Section 23A-27A-32.1
preserved the rights of a person convicted of a capital
offense or sentenced to death prior to July 1, 2007, to
select execution in the manner provided for at the
time of the person’s conviction or sentence.
Thus, pursuant to Section 23A-27A-32.1 SDCL,
Rhines is entitled to elect to be executed by the manner set forth in South Dakota law at the time of his
conviction or sentence. In two communications to Respondent Young (on October 1 and 4, 2019), Rhines
elected to be executed under the drug protocol that

 4
was in effect at the time that he was sentenced to
death, to wit, “[t]he Two Drug Protocol of a Lethal
Dose of An Ultra-Short Acting Barbiturate and a
Chemical Paralytic.”
On October 15, 2019, attorneys for Rhines delivered a letter to Respondent Young, South Dakota Attorney General Jason Ravnsborg, and Paul Swedlund,
Assistant Attorney General, requesting, among other
things, confirmation that Rhines’s request to be executed by the intravenous administration of a lethal
quantity of an ultra-short-acting barbiturate in combination with a chemical paralytic agent would be
honored. In a letter dated October 17, 2019, Assistant
Attorney General Swedlund advised counsel that he
had received “Mr. Rhines’ request for execution pursuant to the combination of drugs provided by statute
at the time of his execution.” Mr. Swedlund stated
that “DOC will follow the law,” and that that “[t]he
ultra-short-acting barbiturate the state intends to use
is pentobarbital.”
Pentobarbital is not an ultra-short-acting barbiturate. (Stevens Aff. ¶¶ 7, 8, 11.) Barbiturates are a
drug group that derive from barbituric acid. (Id. ¶ 5.)
Barbiturates depress the central nervous system and
have been used as sedatives and hypnotics for over a
century. (Id.) Barbiturates are divided into the following classes: ultra-short-acting, short-acting, intermediate-acting, and long-acting. (Id., ¶ 6; see Fritz
Aff. Exh. 2 p.1.) The classifications refer to the time
of onset and duration of the drug effects. (Stevens Aff.
¶ 6.) These classifications are widely accepted in the
field of pharmacology. (Id.)
Ultra-short-acting barbiturates include sodium
methohexital and sodium thiopental. (Id. ¶ 7; see

 5
Fritz Aff. Exh. 2 p.2, Exh. 3 p. 13.) Pentobarbital is
neither an ultra-short-acting barbiturate nor a chemical paralytic, but rather is classified as a short-acting
barbiturate. (Stevens Aff. ¶¶ 8, 11.) Notably, the
Food and Drug Administration approved branded
manufacturer’s package insert provided for Nembutal
Sodium Solution, which is the manufacturer’s name
for pentobarbital, states “NEMBUTAL Sodium is a
short-acting barbiturate.” (Fritz Exh. 4.) The manufacturers for generic pentobarbital, Sagent and Leucadia, similarly state that pentobarbital is a short-acting barbiturate. 2 Pentobarbital is not an ultra-shortacting barbiturate and has never been classified as
such. (Stevens Aff. ¶ 8.)
Sodium thiopental, the most frequently used ultrashort-acting barbiturate, is used for surgery of short
duration. (Id. ¶ 9.) The onset of anesthesia is usually
within 10 to 30 seconds, because sodium thiopental is
so lipid soluble that it rapidly enters the brain. (Id.)
Conversely, pentobarbital’s effects take longer to
begin onset and last longer than the effects of ultrashort-acting barbiturates. (Id. ¶ 8.)
In pharmacology, chemical paralytic agents are
synonymous with neuromuscular blockers. (Id. ¶ 10.)
Paralytics by themselves do not typically lessen a patient’s awareness of pain. (Id.) Rather, they inhibit
muscle action and thus prevent movement. (Id.) They
are typically used during surgical procedures in combination with analgesics or anesthetics. (Id.) Common chemical paralytic agents include pancuronium
2

See https://www.sagentpharma.com/wpcontent/uploads /2017/11
/Pentobarbital_PI-Revised.pdf; http://leucadiapharma.com/wp-content
/uploads/2018/02/Pentobarbital_PI_Art_Clean.pdf.

 6
bromide and vecuronium. (Id.) Pentobarbital is not a
chemical paralytic and has never been classified as
such. (Id. ¶ 11.)
Despite Rhines’s request for the 1993 drug protocol, which required the use of an ultra-short-acting
barbiturate as part of the method of execution, Respondent, the State of South Dakota intends to use
pentobarbital—which is not an ultra-short-acting barbiturate. If the state’s grant of a choice to Rhines creates a life or liberty interest in the manner of his execution – and it does – then due process is violated by
the state’s refusal to honor that choice.
REASONS TO STAY THE EXECUTION
A stay of execution is warranted where there is a
“presence of substantial grounds upon which relief
might be granted.” Barefoot v. Estelle, 463 U.S. 880,
895 (1983). To decide whether a stay is warranted,
the federal courts consider the petitioner’s likelihood
of success on the merits, the relative harm to the parties, and the extent to which the prisoner has delayed
his or her claims. See Hill v. McDonough, 547 U.S. 584
(2006); Nelson v. Campbell, 541 U.S. 637, 649-50
(2004). This standard requires a petitioner in this
Court to show a reasonable probability that four members of the Court would consider the underlying case
worthy of the grant of certiorari, that there is a significant likelihood of reversal of the lower court’s decision, and a likelihood of irreparable harm absent a
grant of certiorari. Barefoot, 463 U.S. at 895.

 7
I.

RHINES WILL BE IRREPARABLY
HARMED IF THE STATE OF SOUTH
DAKOTA
IS
PERMITTED
TO
EXECUTE HIM IN VIOLATION OF HIS
RIGHT TO SELECT THE METHOD OF
EXECUTION THAT IS GUARANTEED
BY SOUTH DAKOTA LAW.

There is no question that Rhines will suffer irreparable harm absent this Court entering a stay of execution. See Wainwright v. Booker, 473 U.S. 935, 935
n.1 (1985) (Powell, J. concurring) (irreparable harm
“is necessarily present in capital cases”). “‘Death is a
punishment different from all other sanctions in kind
rather than degree.’” Bucklew v. Precythe, 139 S. Ct.
1112, 1146, 203 L. Ed. 2d 521 (2019) (Sotomoyer, J.,
dissenting) (quoting Woodson v. North Carolina, 428
U.S. 280, 303–304, 96 S.Ct. 2978, 49 L.Ed.2d 944
(1976)). “For that reason, the equities in a death penalty case will almost always favor the prisoner so long
as he or she can show a reasonable probability of success on the merits.” Id. (Sotomoyer, J., dissenting)(citing Nken v. Holder, 556 U.S. 418, 434, 129 S.Ct. 1749,
173 L.Ed.2d 550 (2009) (noting that success on the
merits and irreparable injury “are the most critical”
factors)); cf. Glossip v. Gross, 135 S. Ct. 2726, 2737,
192 L. Ed. 2d 761 (2015) (observing, in a preliminaryinjunction posture, that “[t]he parties agree that this
case turns on whether petitioners are able to establish
a likelihood of success on the merits” and analyzing
the case accordingly); accord, id., at 2792
(SOTOMAYOR, J., dissenting).
Petitioner is likely to prevail, both in obtain certiorari and a favorable resolution of the questions, be-

 8
cause Respondents’ decision to use pentobarbital, contrary to South Dakota law, deprives Rhines of his statutory rights and liberty interest to be executed in the
manner of his choice without due process of law guaranteed under the Fourteenth Amendment to the
United States Constitution.
II.

SOUTH
DAKOTA
IS
DENYING
PETITIONER DUE PROCESS OF LAW
IN REFUSING TO EXERCISE HIS
STATE-LAW RIGHT TO CHOOSE THE
MEANS OF HIS DEATH.

The manner of execution provided by South Dakota law at the time of Rhines’s conviction and sentence was, in relevant part, “by the intravenous administration of a lethal quantity of an ultra-short-acting barbiturate in combination with a chemical paralytic agent and continuing the application thereof until the convict is pronounced dead by a licensed physician according to accepted standards of medical practice.” SL 1984, ch 181, codified at SDCL § 23A-27A32 (1984.) Rhines has exercised his right to choose the
manner set forth in SL 1984, ch 181. (Compl. ¶ 44.)
Rhines has done so in accordance with the provisions
of SDCL § 23A-27A-32.1. (Id.) Respondents cannot
deprive Rhines of his right to be executed in the manner of his choice. (Id. ¶ 45.) Respondents have a duty
to ensure Rhines can exercise his right. (Id. ¶ 45.) In
stating their intention to execute Rhines with pentobarbital, which is neither an ultra-short-acting barbiturate nor a chemical paralytic agent, Respondents
deprive Rhines of his statutory rights. (Id. ¶¶ 47-49.)

 9
In enacting SDCL § 23A-27A-32.1, in light of the
statutory structure, Rhines has life and liberty interests that entitle him to be executed in the manner provided by South Dakota law at the time of the Rhines’s
conviction or sentence, to wit, by the intravenous administration of a lethal quantity of an ultra-short-acting barbiturate in combination with a chemical paralytic agent. (Compl. ¶¶ 51-54.) Rhines’s life and liberty interests in being executed in this manner are
protected by the Due Process Clause of the Fourteenth
Amendment of the United States Constitution. (Id.
¶¶ 55-56.) By refusing to guarantee that Rhines will
be executed in the manner he has chosen, Respondents are depriving Rhines of his constitutionally protected life and liberty interests without due process of
law. (Id. ¶ 57.)
The plain language of the statutes at issue is clear.
In enacting SDCL § 23A-27A-32.1, the State of South
Dakota created a right that entitles Rhines to be executed in the manner provided by South Dakota law at
the time of the Rhines’s conviction or sentence. See
SDCL § 23A-27A-32.1. The South Dakota Legislature
enacted this provision in February of 2007 and made
no changes to it when the Legislature amended portions of § 23A-27A-32 in 2008.
At the time that Rhines was convicted and sentenced, in 1993, South Dakota law provided, in pertinent part, and unequivocally, that “[t]he 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
agent and continuing the application thereof until the
convict is pronounced dead by a licensed physician according to accepted standards of medical practice.” SL

 10
1984, ch 181, codified at SDCL § 23A-27A-32 (1984)
(emphasis added). The statute allows no discretion in
the manner of execution, but rather gives specific directives as to the manner of execution. Accordingly,
SDCL § 23A-27A-32.1 and SL 1984, ch 181 create a
protected right to an execution “by the intravenous
administration of a lethal quantity of an ultra-shortacting barbiturate in combination with a chemical
paralytic agent and continuing the application thereof
until the convict is pronounced dead by a licensed physician according to accepted standards of medical
practice.” SL 1984, ch 181.
Pursuant to the SDCL § 23A-27A-32.1, Rhines
shall be executed in this manner if he “choose[s] by
indicating in writing to the warden not less than
seven days prior to the scheduled week of execution
the manner of execution chosen.” SDCL § 23A-27A32.1. Rhines did chose to be executed in this manner—more than 4 weeks prior to his week of execution—in a written Kite-Request Slip dated October 1,
2019, addressed to Respondent Young, and in
amended written Kite-Request Slip dated October 4,
2019, addressed to Respondent Young. (Compl. ¶¶ 30,
31, Exhibits B, C to the Compl.) Based upon the foregoing, Rhines has demonstrated that he has a right to
be executed in the manner he has chosen arising from
South Dakota Codified Law.
Respondents cannot deprive Rhines of his right to
be executed in the manner of his choice. Respondents
have a duty to ensure Rhines can exercise his right.
Respondents, however, have taken the position that
pentobarbital is an ultra-short-acting barbiturate.
(Compl ¶ 34, Exh. E to the Compl.) Respondents’ assertion is erroneous. Pentobarbital is not an ultra-

 11
short-acting barbiturate. (Compl ¶ 36; Stevens Aff ¶¶
7, 8.)
This case is analogous to Smith v. State of Montana, Department of Corrections, No. BDV-2008-303,
2015 WL 5827252 (Mont. Dist. Oct. 6, 2015) (Exh. A
to the Compl.). In Smith, the Court addressed a similar Montana law that provided “[t]he punishment of
death must be inflicted by administration of a continuous, intravenous injection of a lethal quantity of an
ultra-fast-acting barbiturate in combination with a
chemical paralytic agent until a coroner or deputy coroner pronounces that the defendant is dead.” Id. at
*1. However, the State of Montana intended to execute Smith using pentobarbital, which, Smith argued,
is not an ultra-short-acting barbiturate. Id. After a
trial, the court concluded, among other things, that
pentobarbital is not an ultra-fast-acting barbiturate
and enjoined the State of Montana from executing
Smith using pentobarbital. Id. at *6.
The Montana statute at issue in Smith and SL
1984, ch 181 are nearly verbatim. The evidence presented by Rhines demonstrates, as was demonstrated
in Smith, that pentobarbital is not an ultra-short-acting barbiturate.
South Dakota’s refusal to honor this state-created
right constitutes a denial of due process of law.
Procedural due process constrains governmental acts
that “deprive individuals of ‘liberty’ or ‘property’
interests within the meaning of the Due Process
Clause of the Fifth or Fourteenth Amendment”
Mathews v. Eldridge, 424 U.S. 319, 332 (1976). When
a
state
regulatory
provisions
sets
forth
“specific directives to the decisionmaker that if the
regulations' substantive predicates are present, a

 12
particular outcome must follow,” a liberty interest is
created. Kentucky Dept. of Corr. v. Thompson, 490
U.S. 454, 463 (1989); see also Hicks v. Oklahoma, 447
U.S. 343, 346 (1980) (Oklahoma statute providing jury
could impose a sentence of no fewer than 10 years in
prison created liberty interest). Procedural due
process also constrains the government when it ends
a person’s life. See, e.g., Ohio Adult Parole Auth. v.
Woodard, 523 U.S. 272, 289 (1998) (O’Connor, J.) (“A
prisoner under a death sentence remains a living
person and consequently has an interest in his life.”)
Here, after the State enacted SDCL § 23A-27A32.1, Mr. Rhines had life and liberty interests that
entitle him to be executed in the manner provided by
South Dakota law at the time of the Rhines’s
conviction or sentence. See SDCL § 23A-27A-32.1.
The South Dakota Legislature enacted this provision
in February of 2007 and made no changes to it when
the Legislature amended portions of § 23A-27A-32 in
2008.
The statute allows no discretion in the manner of
execution, but rather gives specific directives as to the
manner of execution. See Bagley, 5 F.3d at 328.
Accordingly, SDCL § 23A-27A-32.1 and SL 1984,
ch.181 create protected life and liberty interests in
execution.
Respondents, as State actors, cannot deprive
Rhines of his life and liberty interests without due
process of law to which he is entitled under the due
process clauses of the Fourteenth Amendment of the
United States Constitution See U.S. Const. amend.
XIV, § 1; Pentobarbital is neither an ultra-shortacting barbiturate nor a chemical paralytic. (Compl ¶
36; Stevens Aff. ¶¶ 7, 8, 11.) Ultra-short-acting

 13
barbiturates include sodium methohexital and
sodium thiopental. (Compl ¶ 35; Stevens Aff. ¶ 7.) By
stating that Rhines will be executed using
pentobarbital, which is not an ultra-short-acting
barbiturate, Respondents are deliberately and
intentionally depriving Rhines of his constitutionally
protected life and liberty interests without due
process of law. Petitioner has accordingly established
the requisite likelihood that this Court will grant
certiorari and that he will prevail on the merits of his
claim.
III.

SOUTH DAKOTA’S INVOCATION OF
RES JUDICATA TO BAR RHINES’S
CLAIM IS AN UNCONSTITUTIONAL
APPLICATION OF A STATE-LAW
DOCTRINE.

The South Dakota trial court did not reach the
merits of Rhines’s claim that he is entitled to invoke
the earlier protocol for his execution, resting its denial
of relief solely on its application of res judicata to bar
the action—because Rhines purportedly could have
raised this claim in his prior habeas corpus challenge
to death by injection as violative of the Eighth Amendment. (Order at 21-22). The heart of the trial court’s
analysis, however, is an erroneous conclusion it repeats throughout its order: that “Rhines challenged
the exact protocol in 2011 [that] he is challenging
now.” Order at 21.
At its core, the Due Process Clause of the Fourteenth Amendment guarantees a party not only “the
opportunity to present his case,” but also the right “to
have its merits fairly judged.” Logan v. Zimmerman

 14
Brush Co., 455 U.S. 422, 433 (1982). A court may not
prevent a party from litigating an issue unless that
issue was “actually litigated and resolved in a valid
court determination essential to the prior judgment.”
Taylor v. Sturgell, 553 U.S. 880, 892 (2008) (citation
and internal quotation marks omitted). Because deciding a claim without a determination of the merits
is such an obvious due-process denial, courts demand
a clear indication that an issue was actually determined in the prior litigation. See Fayerweather v.
Ritch, 195 U.S. 276, 307 (1904).
Although “[s]tate courts are generally free to
develop their own rules for protecting against the relitigation of common issues or the piecemeal resolution of disputes,” states may not engage in “extreme
applications” of preclusion doctrines that are “inconsistent with a federal right that is ‘fundamental in
character.’” Richards v. Jefferson Cnty., Ala., 517 U.S.
793, 797 (1996). The “actually decided” requirement
is indeed “fundamental in character.”
As this Court observed only eight years after
the Fourteenth Amendment was adopted, “the inquiry
must always be as to the point or question actually
litigated and determined in the original action, not
what might have been thus litigated and determined.”
Cromwell v. Cnty. of Sacramento, 94 U.S. 351, 353
(1876). Courts could not preclude the adjudication of
an issue where “several distinct matters may have
been litigated, upon one or more of which the judgment may have passed, without indicating which of
them was thus litigated.” Russell v. Place, 94 U.S.
606, 608 (1877). Federal and state appellate courts
today uniformly follow this venerable preclusion rule.

 15
See, e.g., 18 Charles Alan Wright et al., Federal Practice and Procedure § 4420 (2d ed. 2002); Restatement
(Second) of Judgments § 27, reporter’s note, cmt. e
(1982).
In Fayerweather, this Court held that, as a matter of due process, no court may preclude a party from
litigating an issue that had not been actually decided
in a prior adjudication. In that case, several plaintiffs
sued in federal court to recover their shares of an estate. Although they had signed releases waiving their
rights to recover, the plaintiffs insisted the releases
were invalid. Addressing its jurisdiction to review the
trial court’s order as presenting a constitutional question, this Court agreed that, if the state court (as
plaintiffs contended) had “rendered its judgment
without any determination” of the “fundamental question” in the case, i.e., the validity of their releases, the
state court had “depriv[ed] them of their property
without any judicial determination of the fact upon
which alone such deprivation could be justified,”
which would be a denial of due process. Id. at 299.
On the merits, the Court upheld the use of issue
preclusion, but only because “[n]othing can be clearer
from this record than that the question of the validity
of the releases was not only before the state courts,
but was considered and determined by them.” Id. at
308. The Court also confirmed that when evidence has
been “offered at [a] prior trial upon several distinct issues, the decision of any one of which would justify the
verdict or judgment, then the conclusion must be that
the prior decision is not an adjudication upon any particular issue or issues, and the plea of res judicata
must fail.” Id. at 307.

 16

Here the state trial court denied Rhines due
process of law by misconstruing Rhines’s claims to
rule that res judicata barred those claims. The court
repeatedly described his present claims as a “challenge [to] the [execution]s protocol’s compliance with
the statutes,” and comparing those claims to his prior
habeas corpus claims. Order at 16-17 (“Rhines could
have and should have brought a specific challenge to
the use of pentobarbital as part of his then-pending
complaint . . . .”); id. at 21 (“Rhines challenged the exact protocol in 2011 as he is challenging it now.”). The
actual nature of Rhines’s prior litigation and this litigation belie the state court’s analysis.
In 2008, Rhines brought constitutional challenges to the State’s manner of execution. He sought
a ruling that the Eighth Amendment barred “an execution carried out by means of [a] two drug cocktail
provided in SDCL 23A-27A-32 in effect at the time of
his conviction” and “a declaration that SDCL 23A-27
A-32, as presently codified, and as applied to Rhines,
constitute[d] an unconstitutional bill of attainder[,] an
unconstitutional ex post facto law[,] and deprive[d]
him of his right to due process of the law.” Order at
13. The State adopted a new protocol in 2011, during
that litigation, and the state court thereafter denied
relief. Id. at 13–14. In 2018, Rhines unsuccessfully
challenged the current protocol’s promulgation as in
violation of the Administrative Procedures Act.
Rhines had no reason to believe that the State
would not use an ultra-short-acting barbiturate if he
exercised his statutory right to demand that protocol.

 17
that he seeks to enforce through this litigation. The
2011 protocol contemplates the use sodium thiopental. As recently as August of 2019, Respondents provided documents to Mr. Rhines’s attorneys regarding
sodium thiopental, with which Respondents could execute Mr. Rhines in compliance with its law. As of
October 2019, by statute, Rhines had the right to elect
his method of execution, either by the law currently in
place, or by the law in place at the time of his conviction or sentence. The Legislature mandated that he
make his election at least seven days prior to his
scheduled execution. SDCL § 23A-27A-32.1. There is
no dispute that Rhines complied with the statute governing his election on October 1, 2019, more than a
month before his scheduled execution dates. Before
October 17, 2019, there was no reason to believe that
the State would do anything other than abide by the
statutory requirement; on that date, the State indicated it would not use sodium thiopental and, instead,
advised counsel that “[t]he ultra-short-acting barbiturate the state intends to use is pentobarbital.”
Rhines promptly initiated a new action to enforce his statutory rights. The claims in this case arise
out of the State’s refusal to comply with Rhines’s
proper statutory election and events. At no earlier
point in time did Rhines have any opportunity to litigation those claims—and the prior litigation did not
in any manner actually decide the question whether
the State may ignore Rhines’s election. The state
court’s invocation of res judicata to bar consideration
of Rhines’s claims accordingly denies him due process
of law.

 18
CONCLUSION
The Court should stay Rhines’s execution.
Respectfully,
ELLIOT H. SCHERKER
GREENBERG TRAURIG, P.A.
333 SE 2nd Ave.
Suite 4400
Miami, FL 33131
DANIEL R. FRITZ
BALLARD SPAHR LLP
101 South Reid St.,
Suite 302
Sioux Falls, SD 57103

November 4, 2019

CAROLINE J. HELLER
Counsel of Record
GREENBERG TRAURIG, LLP
200 Park Ave.
New York, NY 10166
hellerc@gtlaw.com
(212) 801-2165

  

 

IN THE SUPREME COURT
OF THE
.STATE OF SOUTH DAKOTA

irirx?ir

ORDER DENYING STAY
OF EXECUTION

CHARLES RUSSELL RHINES,
Plaintiff and Appellant,

vs.
#29166

SOUTH DAKOTA DEPARTMENT OF
CORRECTIONS, MIKE LEIDHOLT,
SECRETARY, SOUTH DAKOTA
DEPARTMENT OF CORRECTIONS,
and DARIN YOUNG IN HIS
CAPACITY AS WARDEN OF THE
SOUTH DAKOTA STATE
PENITENTIARY,
Defendants and Appellees.

On OctOber 31, 2019, appellant served and filed a notice of
appeal from an order denying application for a temporary restraining
order, preliminary injunction, and stay of his execution set for the
week of November 3, 2019. Appellant has filed a motion for stay of
execution pending the appeal to this Court and appellee filed a
response. The Court considered appellant's motion and supporting
documents, the State?s response and the whole of the circuit court?s
memorandum opinion and order of October 31, 2019, denying appellant?s
motion for a preliminary injunction and stay of execution. The Court
also considered and weighed the factors for issuance of a preliminary
injunction or stay of execution including the likelihood of success

on the merits, the likelihood of irreparable injury absent

 

 

 

#29166, Order

preliminary relief, the balance of equities, and the public
interests. Now, therefore, being fully advised in the premises, it
is

ORDERED that appellant?s motion for a stay pending appeal
is hereby DENIED.

DATED at Pierre, South Dakota, this 4th day of November,

2019.

      



ATTEST: .i
David Gilbertson,

 

 
 

Chief Justice

  

 

Clerk of/t?e Supreme Court
(SEAL)

(Justices Janine M. Kern and Patricia J. DeVaney disqualified.)

PARTICIPATING: Chief Justice David Gilbertson and Justices Steven R. Jensen
and Mark E. Salter and Circuit Court Judges Michelle K. Comer
and Kent Shelton.

SUPREMECOURT
STATE or SOUTH DAKOTA STATE OF Egg?) DAKOTA
tn the Supreme Court
I, Shiney A. Janeen-Forget. Clerk of the Go?tuggfuue
South Dakota, hereby certify that the whim ms rurne 1* 2019

and correct no of the Original thereof as the same appears
on record En orgyat?oe. in witness merrier. I have hereunto set

my hand and af?xed the see! said court at Pierre. 5.0. this 
more Goo I Cierk

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