The Arkansas Supreme Court
finished up work before its summer recess today with decisions on a challenge to secrecy in the state's lethal injection process
for executions and another to the law that all but forces judges to retire.
In a split decision, the court reversed Circuit Judge Wendell Griffen and dismissed the prisoners' challenge to secrecy in the execution process and the possibility that unknown drugs could amount to cruel and unusual punishment. It accepted the argument that the state was immune from lawsuit and the inmates hadn't proved constitutional violation of the right against cruel and unusual punishment. Here's the 4-3 majority opinion
written by Justice Courtney Goodson. Justices Paul Daniel and Jo Hart dissented. Justice Robin Wynne concurred in part and dissented in part, but his dissent was on critical parts of the case that, had he prevailed, produced another hearing.
It is uncertain how quickly the state can move, if at all, to resume executions with the drugs because of questions about the supply. Gov. Asa Hutchinson set eight execution dates last year, but all passed while legal matters were pending. There are 34 inmates on Death Row. Arkansas's last execution was in 2005.
From the Governor's spokesman, J.R. Davis, this morning:
“Governor Hutchinson believes Judge Griffen overstepped his authority and is pleased the Arkansas Supreme Court reversed his ruling upholding the law protecting the confidentiality of the supplier.
“The Governor is now reviewing the decision and is conferring with the Attorney General about what are the appropriate next steps to take.”
From Attorney General Rutledge:
“Today's decision from the Arkansas Supreme Court reversing the decision from Circuit Judge Wendell Griffen once again shows that Arkansas’s method of execution by lethal injection is lawful,” said Attorney General Rutledge. “It also upholds important confidentiality provisions passed by the General Assembly to protect drug manufacturers and suppliers from intimidation and harassment. As to the state’s next steps, I will notify the Governor once the stays of executions have been lifted so that he may set execution dates. I know that victims’ families want to see justice carried out, and that is exactly what I will continue to work toward as Attorney General.”
: The Supreme Court affirmed Judge Chris Piazza's ruling upholding. the state law prohibiting judicial retirement for judges elected after the age of 70. Justice Courtney Goodson wrote for the majority.
Chief Justice Howard Brill and Justice Paul Danielson dissented. Justices Jo Hart and Karen Baker wrote concurrences.
Death Row inmates had challenged
secrecy about suppliers for drugs for the lethal injection process is unconstitutional. The state says an agreement in an earlier court action to reveal the suppliers was override by a 2015 state law. It says the three-judge execution mix uses FDA-approved drugs and the effort to disclose suppliers is intended to shame then suppliers out of using drugs for executions. The drugs have become hard to obtain from conventional sources for just that reason. Practical reasons may bar the drugs in the immediate future. The current supply of one drug goes out of date next week, June 30. Suppliers of others are not readily available, though the drug process has been found constitutional in other states.
The Supreme Court made law against the public interest in this case by elaborating on the state Constitution's requirement of expenditure of public money. The Court said the Constitution says the disclosure "may be as prescribed by law." Thus, the General Assembly can decide when an expenditure must be disclosed — if ever. Bad law. Justice Wynne's partial dissent was based in part on this ruling. Wynne also said the plaintiffs had presented a sufficient case, if not to prove, to have a trial on the claim of potential for unconstitutional punishment.
In the retirement case,
Judge Chris Piazza has ruled that the law that encourages judicial retirement is constitutional. Under that law, judges elected after they turn 70 no longer qualify for judicial retirement. The benefit is substantial — up to 80 percent of pay. One of the four judges who's challenged the law, Circuit Judge Michael Landers
of El Dorado, has been elected to another term that begins after his 70th birthday. Judge Piazza said some good judges undoubtedly would be lost on account of the law, but the Constitution was silent on the issue raised. The Supreme Court said this wasn't an additional qualification for office nor a violation of equal protection or age discrimination. The majority noted statutes encouraging or mandating judicial retirement had been upheld in other states. Chief Justice Brill wrote that judges
such as Landers faced an unfair choice, retire or lose a pension. He said ample means existed to remove infirm judges, if that was the intention of the legislation. Justice Danielson noted a quirk
in the law that allows someone elected after age 70 for the first time to serve as many as 14 years, when retirement eligibility is achieve.
CORRECTION: I originally wrote the Supreme Court decision was 5-2, but I think it more accurate to say it was 4-3 on the key points.