UPDATE: Missouri high court upholds execution procedures

Tuesday, February 24, 2009 | 5:41 p.m. CST

JEFFERSON CITY — The state Supreme Court on Tuesday upheld the means by which Missouri adopted its lethal injection procedures, clearing a barrier that had halted executions.

Although once among the annual leaders in executions, Missouri has not put anyone to death since October 2005 because of various legal challenges to its method of lethal injection.

It was not immediately clear when executions would resume as a result of Tuesday's ruling. In Missouri, execution dates are set by the state Supreme Court separately from its rulings on cases. The court did not immediately schedule any executions.

The Department of Corrections released a statement Tuesday saying it was ready to carry out executions.

The Missouri attorney general's office previously had requested execution dates for more than a dozen convicted murderers. Those requests still stand, spokesman Travis Ford said.

In 2006, a federal judge declared Missouri's lethal injection process unconstitutional after the surgeon who previously oversaw the state's executions testified he sometimes transposed numbers and operated without written procedures or supervision.

The Department of Corrections responded in July 2006 by adopting written execution procedures detailing the precise amounts and order of the chemicals to be injected into condemned inmates. A federal judge upheld the protocol last year.

But a group of 17 condemned prisoners, five relatives, three clergy members and two Democratic lawmakers subsequently sued in state court on grounds that the procedures should have been adopted as an official rule, which would require a public comment period.

A Cole County judge dismissed the lawsuit in August and the case was appealed.

In a 4-3 decision Tuesday, the Supreme Court upheld the lower court ruling and decided that execution procedures did not have to be adopted as formal rules.

The case hinged on definitions in state law.

Missouri law defines a rule to be an "agency statement of general applicability" that implements or interprets a law or describes agency procedures.

Among the things not considered a rule under Missouri law are "a statement concerning only inmates" or "a statement concerning only the internal management of an agency (that) does not substantially affect the legal rights of, or procedures available to, the public."

Writing for the majority, Judge Mary Russell said the execution procedures affected only inmates. To the extent that medical professionals are involved in performing an execution, their "role is purely mechanical," Russell wrote.

She also cited a state law specifically making the execution protocol a public record as evidence that legislators did not consider it part of the rule-making process, which would have automatically been public.

In a dissenting opinion, Judge Richard Teitelman said the execution procedures don't relate exclusively to inmates but also to medical professionals. He pointed to the law making the execution protocol a public record as evidence that lawmakers wanted it to be subject to public rule-making procedures.

The inmates had been represented before the Supreme Court by Joe Luby, an attorney with the nonprofit Public Interest Litigation Clinic in Kansas City.

"This is a question of which the state Supreme Court has the last word," Luby said Tuesday. "It's a question of Missouri law, and while we disagree with the court's opinion, we certainly respect it."

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