Lawyers for the state Department of Correction put a circuit judge on notice that they are appealing to the Arkansas Supreme Court his denial of their motion to dismiss a lawsuit challenging the state's execution protocol.
As of late Thursday, the appeal was not yet on the higher court's docket.
Deputy Attorney General Jennifer Merritt, who is representing the Department of Correction in the lawsuit, said in the notice that the lower court lacks authority to decide cases involving the interpretation of the state's constitution.
"The Attorney General believes the lower court's denial of our motion to dismiss was in error and has asked the Supreme Court to review the decision," Attorney General spokesman Judd Deere said.
Jeff Rosenzweig -- the attorney for the nine inmates -- declined to comment when contacted.
Nine inmates -- eight of whom have exhausted all appeals and were scheduled for execution before the state Supreme Court temporarily halted them -- filed the lawsuit in Pulaski County Circuit Court in June challenging the state's execution protocol and demanding the identity of the state's source of execution drugs.
To settle a 2013 lawsuit by the same inmates, the state agreed to disclose the identity of manufacturers and suppliers of all future execution drugs. The state said that agreement was nullified, however, when the state legislature passed Act 1096 of 2015 in April, establishing new execution protocol including making it illegal for the state prison system to disclose information that could identify the lethal-injection drugs' origins.
The inmates' lawsuit is questioning the constitutionality of the execution law as well as the Correction Department's execution protocol.
The state sought a protective order after Judge Wendell Griffen ordered the prison to release the information to the inmates' attorneys. Griffen said Tuesday that he would not likely rule on that request until mid-November to give time for other written motions to be filed.
The state Supreme Court previously ruled in favor of the state attorney general's office when lawyers asked that Griffen's Oct. 9 order to halt all scheduled executions be nullified and to expedite the the lawsuit's hearing in the lower court.
Griffen had previously said the case would not be heard until early March.
The Supreme Court ruled on Oct. 20 that Griffen overstepped his authority by halting the executions, which can only be stayed by the governor or by the Supreme Court in the case of appeals. After dissolving Griffen's stay, the high court issued its own temporary halt to the executions.
On Thursday, the state filed a supplement to its original motion for protective order, saying the identities of drug manufacturers "and (especially) suppliers are irrelevant to any of the remaining claims."
Merritt cited in Thursday's filing a Monday ruling in an Ohio federal court that barred the disclosure of the origin of its lethal-injection drugs. The Ohio court said that doing so would hamper the ability for the state to carry out death sentences because suppliers would be unwilling to provide the drugs without an assurance of confidentiality, "due to the existence of tangible risks of harm to pharmacies and the personnel that work there."
Merritt also said in Thursday's court papers that Rule 26(c)(7) of the Arkansas Rules of Civil Procedure allows courts to protect a party from "annoyance, embarrassment, oppression, or undue burden or experience" that disclosure of a trade secret or other confidential commercial information would bring.
Metro on 10/30/2015