VIRGINIA:
In the Supreme Court of Virginia held at the Supreme Court
Building in the City of Richmond on Tuesday, the 30th day of March,
2004.
Dennis Mitchell Orbe, Appellant,
against Record No. 040598
Circuit Court No. CH-04-419-1
Gene M. Johnson, Director, Virginia
Department of Corrections, et al., Appellees.
Upon an appeal from an order and a judgment rendered by
the Circuit Court of the City of Richmond on the 10th and 12th
days of March, 2004.
Appellant's motion to proceed in forma pauperis is granted.
By order dated February 12, 2004, the Circuit Court of York
County directed that the sentence of death imposed upon Dennis
Mitchell Orbe ("Orbe") be carried out on March 31, 2004. On March
5, 2004, Orbe filed a Bill of Complaint for Declaratory Judgment
and Injunctive Relief in the Circuit Court of the City of Richmond
seeking an adjudication that the particular method of
implementation of lethal injection employed by the Commonwealth and
anticipated to be utilized in his execution "constitutes cruel and
unusual punishment and violates due process of law under Article I,
Sections 9 and 11, of the Constitution of Virginia." Additionally,
Orbe requested the issuance of a permanent injunction "barring [the
Commonwealth] from carrying out [his] execution using a protocol
that will cause unnecessary pain." In a separate motion, Orbe
requested the issuance of a temporary restraining order and
preliminary injunction "to protect the status quo ante" and
enjoining the Commonwealth from carrying out Orbe's execution on
March 31, 2004. In pleadings before this Court, Orbe states that
he makes no federal constitutional claims in this action.
On March 10, 2004, the Circuit Court of the City of Richmond
denied Orbe's Motion for Preliminary Injunction holding that it was
"without jurisdiction to grant the motion, pursuant to Virginia
Code § 53.1-232.1," that Orbe's claim "is a habeas corpus claim and
does not lie in a declaratory judgment proceeding," and that even
"if the court had jurisdiction and declaratory judgment was the
proper proceeding, the court would find that [Orbe] could not
demonstrate a likelihood of success on the merits." By order dated
March 12, 2004, the Circuit Court of the City of Richmond dismissed
the entire Bill of Complaint, holding that Orbe's claim "is a
habeas corpus claim which does not lie in a declaratory judgment
proceeding, and that [the court] is without jurisdiction to
consider habeas corpus claims brought by persons sentenced to death
pursuant to Virginia Code § 8.01-654(C)."
On March 22, 2004, Orbe filed his notice of appeal from the
denial of a preliminary injunction and from the dismissal of the
entire Bill of Complaint. On appeal, Orbe asserts:
1. The circuit court erred in denying a preliminary injunction
on the ground that it supposedly lacked jurisdiction to do
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so under Code § 53.1-232.1.
2. The circuit court erred in denying a preliminary injunction
on the ground that the issue in Plaintiff's bill of
complaint for declaratory judgment supposedly was a habeas
corpus claim.
3. The circuit court erred in denying a preliminary injunction
on the ground that Plaintiff could not demonstrate a
likelihood of success on the merits.
4. The circuit court erred in dismissing the complaint on the
ground that the Plaintiff's bill of complaint was a second
or successive habeas petition.
Orbe requests this Court to remand the declaratory judgment
action to the trial court for trial and to issue a preliminary
injunction or remand to the trial court with directions to enter
such an injunction prohibiting the Commonwealth from "carrying out
Orbe's execution using their current protocol."
Orbe's bill of complaint is not a claim for habeas relief.
See Dennis Mitchell Orbe v. William Page True, Warden, decided
today. Orbe's action is one for declaratory judgment. However, it
may not be sustained. Because Orbe is deemed to have selected
lethal injection rather than electrocution, he has waived any
challenge to the constitutionality of lethal injection under the
Constitution of Virginia. Orbe's claim is based upon Article I,
Sections 9 and 11, of the Constitution of Virginia. He
specifically disclaims any federal constitutional claims. Under
Virginia law, he cannot use a declaratory judgment action to decide
an issue he has waived by prior act.
Pursuant to the provisions of Code § 53.1-234, Orbe had the
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right to choose whether his execution will be by lethal injection,
as it is administered in Virginia, or by electrocution. If the
condemned prisoner has not made a choice by at least fifteen days
prior to the scheduled execution, the statute provides that the
method of execution shall be by lethal injection. Under these
circumstances, the condemned prisoner may affirmatively choose
electrocution, affirmatively choose lethal injection, or choose the
statutory consequences of a failure to specify, namely, lethal
injection. In any case, it is the condemned prisoner's choice.
We have previously held that execution of prisoners by
electrocution does not violate the Eighth Amendment's prohibitions
against cruel and unusual punishment. Bell v. Commonwealth, 264 Va.
172, 202, 563 S.E.2d 695, 715 (2002),cert. denied, 537 U.S. 1123
(2003); Ramdass v. Commonwealth, 246 Va. 413, 419, 437 S.E.2d 566,
569 (1993), vacated in part on other grounds, 512 U.S. 1217 (1994),
cert. denied after remand, 514 U.S. 1085 (1995); Stockton v.
Commonwealth, 241 Va. 192, 215, 402 S.E.2d 196, 209-10 (1991);
Martin v. Commonwealth, 221 Va. 436, 439, 271 S.E.2d 123, 125
(1980); Hart v. Commonwealth, 131 Va. 726, 743-44, 109 S.E. 582,
587 (1921). We take this occasion to hold that execution of
prisoners by electrocution also does not violate Article I,
Sections 9 and 11, of the Constitution of Virginia.
When a condemned prisoner has a choice of method of execution,
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the inmate may not choose a method and then complain of its
unconstitutionality, particularly when the constitutionality of the
alternative method has been established. In Stewart v. LaGrand, a
case involving a challenge to execution by lethal gas, the Supreme
Court of the United States held that
Walter LaGrand, by his actions, has waived his claim that
execution by lethal gas is unconstitutional. At the time
Walter LaGrand was sentenced to death, lethal gas was the
only method of execution available in Arizona, but the
State now provides inmates a choice of execution by
lethal gas or lethal injection, see Ariz. Rev. Stat. §13-
704(B) (creating a default rule of execution by lethal
injection). Walter LaGrand was afforded this choice and
decided to be executed by lethal gas. On March 1, 1999,
Governor Hull of Arizona offered Walter LaGrand an
opportunity to rescind this decision and select lethal
injection as his method of execution. Walter LaGrand,
again, insisted that he desired to be executed by lethal
gas. By declaring his method of execution, picking
lethal gas over the state's default form of execution −
lethal injection − Walter LaGrand has waived any objection
he might have to it.
526 U.S. 115, 119 (1999).
Orbe's circumstances are legally indistinguishable from those
presented to the United States Supreme Court in LaGrand. As
previously discussed, under Code § 53.1-234, Orbe could have chosen
electrocution or he could have chosen lethal injection. Instead,
he chose to allow the statutory default provisions to apply. The
Commonwealth did not make his choice. The Commonwealth only
provided the choices for him, including the choice of allowing the
default provisions to apply. Orbe has waived any right he may have
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to complain about lethal injection as it is administered in
Virginia.
The effect of his waiver removes Orbe's claims from those that
may be properly considered by declaratory judgment under Virginia
law. Declaratory judgment proceedings were not available at common
law. This statutory cause of action is dependent upon "cases of
actual controversy." Code § 8.01-184. Declaratory judgment is not
intended to provide advisory opinions. Erie Ins. Group v. Hughes,
240 Va. 165, 170, 393 S.E.2d 210, 212 (1990). Orbe's waiver of the
right to contest the constitutionality of lethal injection as it is
administered in Virginia removes the requirement of "actual
controversy" from the case. Simply stated, Orbe has no cognizable
cause of action.
Additionally, a declaratory judgment action is not a
substitute for an appeal or collateral attack upon conviction.
Declaratory judgment "does not provide a means whereby previous
judgments by state or federal courts may be reexamined, nor is it a
substitute for appeal or post conviction remedies." Shannon v.
Sequeechi, 365 F.2d 827, 829 (10th Cir. 1966). "A declaratory
judgment action is not part of the criminal appellate process."
State v. Brooks, 728 N.E.2d 1119, 1122 (Ohio Ct. App. 1999). The
issue Orbe presents in his declaratory judgment action should have
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been raised before the trial court in Orbe's criminal case and on
direct appeal from that judgment.
While the trial court erred in characterizing Orbe's claim as
one for habeas corpus rather than declaratory judgment, the trial
court did not err in dismissing the action. It is unnecessary to
address each of Orbe's assignments of error because they are
predicated upon the legitimacy of the underlying declaratory
judgment action itself. Orbe's appeal from the judgment orders of
the trial court dated March 10, 2004 and March 12, 2004 is denied.
All of Orbe's other motions attendant to this appeal are denied.
_______________
JUSTICE LACY, with whom JUSTICE KOONTZ joins, dissenting.
In denying the petition for appeal, the majority states that
Orbe’s circumstances are “legally indistinguishable” from that in
Stewart v. LaGrand, 526 U.S. 115 (1999). In my opinion, the
circumstances are both factually and legally different.
Unlike LaGrand, where the issue was whether death by the
administration of any poisonous gas was cruel and inhuman
punishment, Orbe is complaining that the specific chemical protocol
of the lethal injection to be used is the constitutional offender,
not lethal injection per se. Moreover, the defendant in LaGrand
affirmatively elected the specific method of execution of which he
then complained. Contrary to the view taken by the majority, Orbe
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did not elect a method of execution.
The majority’s rationale is that by not exercising his right
to select the method of execution, Orbe effectively selected his
method of execution and, thus, waived his right to challenge the
constitutionality of that method. I disagree.
Code § 53.1-234, in pertinent part, states: “The method of
execution shall be chosen by the prisoner. In the event the
prisoner refuses to make a choice at least fifteen days prior to
the scheduled execution, the method of execution shall be by lethal
injection.” The majority would add language to the statute to the
effect that if “the prisoner refuses to make a choice . . . he
shall be deemed to have selected lethal injection.” “But, courts
are not permitted to add language to a statute nor are they
permitted to accomplish the same result by judicial
interpretation.” Shackleford v. Commonwealth, 262 Va. 196, 213,
547 S.E.2d 899, 909 (2001) (internal quotation marks omitted); see
also Burlile v. Commonwealth, 261 Va. 501, 511, 544 S.E.2d 360, 365
(2001). Rather, when the language of a statute is unambiguous,
courts are bound by the plain meaning of that language and may not
assign a construction that amounts to holding that the General
Assembly did not mean what it actually has stated. Williams v.
Commonwealth, 265 Va. 268, 271, 576 S.E.2d 468, 470 (2003).
The plain meaning of Code § 53.1-234 is that where the
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prisoner fails to make the selection between the two available
methods of execution within the required time, the Commonwealth
makes the selection of the method of execution. In the absence of
an affirmative act by the prisoner, there can be no waiver of the
right to challenge the constitutionality of the method of
execution. Were this not the case, then the rationale expressed by
the majority would result in the inability of a prisoner to
challenge this statute under any circumstances. Accordingly, I
would hold that Orbe has not waived his right to challenge the
constitutionality of the method of his execution.
The majority further holds that “a declaratory judgment action
is not a substitute for an appeal or collateral attack upon
conviction.” While I agree that this is a correct statement of the
law with regard to declaratory judgments, the majority misconstrues
Orbe’s request for declaratory judgment. Orbe expressly states
that he is not challenging the legality of his conviction and
sentence, but rather that he is challenging the specific chemical
protocol of the lethal injection to be used to carry out that
sentence.
Similarly, the majority’s assertion that “[t]he issue Orbe
presents in his declaratory judgment action should have been raised
before the trial court in Orbe’s criminal case and on direct appeal
from that judgment,” is unavailing in my opinion. I recognize that
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in LaGrand, the Court held that the defendant’s failure to raise
the question of the constitutionality of lethal gas as a method of
execution was barred by his failure to raise that claim at the time
of his direct appeal. However, at the time of LaGrand’s trial,
lethal gas was the only method of execution in use in Arizona.
LaGrand, 526 U.S. at 117. The Court further noted that
there was sufficient debate about the constitutionality
of lethal gas executions that Walter LaGrand cannot show
cause for his failure to raise this claim. Arguments
concerning the constitutionality of lethal gas have
existed since its introduction as a method of execution
in Nevada in 1921. In the period immediately prior to
Walter LaGrand’s direct appeal, a number of states were
reconsidering the use of execution by lethal gas, and two
United States Supreme Court Justices had expressed their
views that this method of execution was unconstitutional.
In addition, lethal gas executions have been documented
since 1937, when San Quentin introduced it as an
execution method, and studies of the effect of execution
by lethal gas date back to the 1950s.
LaGrand, 526 U.S. at 119-20 (internal citations omitted).
Here, the record shows that the debate about the efficacy of
the specific chemical protocol of the lethal injection has only
recently arisen. Moreover, the Commonwealth only provided Orbe
with the particulars of the protocol less than a month ago. Thus,
even assuming that Orbe could have raised his challenge to the
method of execution at trial, but see People v. Bradford, 929 P.2d
544, 578 (Cal. 1999) (holding that a challenge on direct appeal to
the legality of the method of execution for a death sentence must
be “rejected out of hand” because it does not challenge “the
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validity of the sentence itself”), under these circumstances I
would hold that there was “cause and prejudice to excuse the
default,” LaGrand, 526 U.S. at 117, arising from his failure to do
so.
In the case of Nelson v. Campbell, 347 F.3d 910 (11th Cir.),
cert. granted, ___ U.S. ___, 124 S.Ct. 835 (2003), presently on
review before the United States Supreme Court, the principal issue
to be determined is whether a prisoner may challenge the method of
his execution through a civil proceeding. While I recognize that
the issues in Nelson relate to federal law and the federal
constitution, the similarity of that case to the circumstances and
procedures here are undeniable.
Given that “[t]he awesome severity of a sentence of death
makes it qualitatively different from all other sanctions,”
Satterwhite v. Texas, 486 U.S. 249, 262 (1987) (Marshall, J.
concurring), and cognizant of the fact that the forthcoming
decision in Nelson may inform our decision, I believe that the
proper course in this case would be to grant the appeal and award a
stay of execution, so that the Court might have time to more fully
explore the issues raised herein. Accordingly, I respectfully
dissent.
This order shall be certified to the said circuit court.
A Copy,
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Teste:
Patricia H. Krueger, Clerk
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