The Arkansas Supreme Court on Wednesday relieved the state Department of Correction from having to release by the end of business today the documents that could provide details about the origins of its execution-drug supply.
Drug labels and package inserts for a sedative used to start the lethal injection process were due to be released by 5 p.m. today by order of Pulaski County Circuit Judge Mackie Pierce, who sided last week with a Little Rock attorney who sued for the records.
State attorneys appealed to the high court, which granted their motion to stay Pierce's order while the case goes before the justices. The attorneys argue that the records are protected by secrecy provisions in the state's 2015 execution law.
There are now two appeals in front of the Supreme Court in which the state is seeking to keep secret the labels and package inserts for a pair of drugs used in its three-drug execution protocol. Both of the pending lawsuits were filed by attorney Steven Shults of Little Rock after prison officials denied his public-records requests.
In both cases, the justices stayed orders from the lower court to release the documents.
The first appeal stems from Shults' attempts this spring to get documents related to Arkansas' supply of potassium chloride, a lethal heart-stopping drug. Shults then sought the same documents for the sedative midazolam after the state announced it had replenished its supply in August.
Shults' attorney, Alec Gaines, said he was "disappointed" in the Supreme Court's decision Wednesday. But he expressed hope that the justices would agree to speed up their review of the case before the next scheduled execution at the Cummins Unit on Nov. 9.
In response to that request, Assistant Attorney General Jennifer Merritt wrote to the court Wednesday that the state did not have a problem with expediting the appeal.
"Indeed, it is probably most efficient for the Court to consolidate this appeal" with Shults' earlier suit, Merritt wrote.
The court did not issue an opinion explaining why it chose to issue a stay, though the official ruling stated that Chief Justice Dan Kemp dissented from the majority and would have allowed Pierce's order to stand.
The court also did not address Shults' motion for an expedited hearing. As of now, both sides are not due to complete their written arguments until well after the scheduled execution of murderer Jack Greene in November.
Gaines said Shults is seeking to review the drug labels and package inserts before the drugs' use in executions, though he could not say what Shults hoped to learn from the materials. Shults is out of town this week, Gaines said. Attempts to reach Shults were unsuccessful.
The Correction Department previously supplied reporters with redacted copies of the drug labels and the package inserts, but it stopped the practice after The Associated Press used the records to identify the pharmaceutical company Pfizer as the manufacturer at that time of part of the state's execution-drug supply.
Pfizer said it did not want its products being used in executions. Other drugmakers and suppliers have expressed similar objections, and several unsuccessfully sued Arkansas earlier this year to stop the state from using the drugs in a series of April executions.
In order to maintain a supply for executions, the Correction Department has sought to mask the source of its drugs through provisions in the 2015 Method of Execution Act. But Pierce ruled last week that the law does not specifically protect manufacturers, and therefore the records must be released under the Freedom of Information Act.
Gaines said the records are "a matter of public interest." A spokesman for Attorney General Leslie Rutledge declined to comment, saying the Supreme Court's order spoke for itself.
In a separate letter Wednesday, Justice Courtney Goodson wrote that one of the attorneys for Shults' legal team, Heather Goodson Zachary, was her former law clerk. Goodson declined to recuse, saying the connection did not affect her objectivity.
Goodson didn't return a phone call seeking further information.
Gaines declined to say whether he thought Goodson should recuse.
Metro on 09/28/2017