By CHARLIE FRAGO ARKANSAS DEMOCRAT-GAZETTE
Arkansas Democrat-Gazette
LITTLE ROCK, Ark. — Attorney General Dustin McDaniel asked the Arkansas Supreme Court on Tuesday to overturn a judge’s order barring the state’s lethal injection protocol from being followed with condemned killer Frank Williams.
Williams is scheduled to die Sept. 9.
Arkansas death-row inmate Frank Williams Jr., center, is escorted back to his cell after a clemency hearing in Varner, Ark., Monday, Aug. 4, 2008. (AP Photo/Danny Johnston) |
In filings Tuesday, the state argued that Circuit Judge Timothy Fox wrongly ruled in his Pulaski County court that the Department of Correction’s new protocol is subject to a state law setting procedures state agencies must follow in making rules.
The state also asked the high court to expedite its handling of the case.
The justices gather today for a regularly scheduled meeting. Usually, appeals take about a year.
In its two-volume brief, the state asked the court to decide the case by Sept. 9 at the latest so that the execution can proceed as scheduled.
In May, Williams sued in circuit court, contending that the department’s protocol change - Administrative Directive 08-28 - hadn’t been adopted following procedures of a state law, the Arkansas Administrative Procedure Act, which governs state agencies in their rule-making.
McDaniel’s office argued that the act doesn’t apply because the protocol is an internal, administrative procedure of the sort the Supreme Court has ruled is not subject to the requirements of the rule-making law.
Since the protocol “governs only the actions of personnel carrying out executions and does not address the private rights of members of the public nor the procedures available to the public,” it doesn’t fall under the act’s jurisdiction, Assistant Attorney General C. Joseph Cordi Jr. wrote.
The Correction Department also has sovereign immunity as a state agency, the brief said, so Williams has no legal standing to sue it in the courts of Arkansas.
Even if the court decides that the Correction Department doesn’t have sovereign immunity in this case, the state argued, it should grant a summary judgment if it agrees with the state’s argument that the protocol isn’t governed by the Administrative Procedure Act.
The procedures of that law include public notice of the proposed rule, a period for public review and public comment. Williams’ lawsuit contended that not following those steps denied the public the opportunity to have a say in the making of a rule that reflects on the public when the state carries out executions.
Fox ruled Thursday that the department should have followed the procedures of this rule-making law because Administrative Directive 08-28 contained elements of internal policy and public rule. The change was adopted by the department after the U.S. Supreme Court struck down a challenge to lethal injection in Kentucky in April. Kentucky’s protocol was similar to Arkansas’.
The protocol related to procedures for how three drugs are to be administered and other steps to be taken before the execution.
Other issues in the appeal were the type of drugs used, how many are used and how they are delivered.
McDaniel’s office pointed to execution procedures in Maryland and North Carolina - which use two paralytic drugs like Arkansas does - as having withstood federal scrutiny.
The drugs also will be administered with “continuous intravenous injection” as required by law, the state argued.
Williams claims the injection would halt between syringes being injected into an intravenous “port.” Correction Department officials have said they are preparing for Williams’ execution as planned.
On Tuesday, Gov. Mike Beebe repeated earlier statements that he is still considering clemency for Williams, an action recommended by a divided Arkansas Board of Parole.
A federal lawsuit filed by Williams and three other death-row inmates challenging the constitutionality of lethal injection was dismissed in early August.
Williams, 42, has been on death row for more than 15 years after being convicted of murdering Lafayette County farmer Clyde Spence. Spence had fired Williams for breaking a tractor.
The Arkansas Supreme Court upheld his conviction in 1995.
Copyright 2008 Little Rock Newspapers, Inc.