(CN) – A Missouri trial court was correct in dismissing a lawsuit challenging the state’s execution protocol, the state Supreme Court found in a 4-3 ruling.
A group led by seven death-row inmates claimed the new execution protocol violated the Missouri Administrative Procedures Act by not allowing public comment. But the state’s high court sided with the Cole County Court and found that protocol is not a rule and so is not subject to public comment.
“The Legislature has acted … to exempt statements and procedures from rulemaking when they are directed solely at inmates, such as the protocol in this case. … This demonstrates that the General Assembly did not intend that notice and comment rulemaking be the avenue for bringing challenges to the State’s ability to execute death row inmates,” Judge Mary R. Russell wrote in the majority opinion.
But Judge Richard A. Teitelman was one of three judges to disagree. Teitelman said the plain language of the protocol does not apply to the protocol, which directs medical personnel.
“The undisputed facts of this case show that the execution protocol is carried out by individuals who are not inmates,” Teitelman wrote in dissent. “The execution protocol, therefore, is not an agency statement ‘concerning only inmates’ and is not exempt from rulemaking on that basis.”
The ruling could open the door for executions to resume in Missouri. The state was once an annual leader in executions, but none have been performed since October 2005. In 2006, a federal judge declared the state’s execution procedure unconstitutional after the doctor who previously oversaw the executions admitted to transposing numbers and operating without written procedures or supervision. In July 2006, the Department of Corrections adopted written execution procedures that include precise amounts of chemicals and the order in which they were to be administered. A federal judge upheld the new protocol in 2008.
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