Attorneys for Death Row inmates filed yesterday a last-gasp petition for rehearing of the Arkansas Supreme Court decision denying an attempt to get information about the source of drugs used to kill condemned prisoners.
The matter is life and death for the inmates. Or really more about whether the death will be cruel and unusual on account of poor drugs.
But the Arkansas Constitution is also at stake on a point that will reverberate long after the inmates die, whether at the state’s hands or by the passage of time.
In a 4-3 decision, the Arkansas Supreme Court held that the plain language of the Arkansas Constitution has no meaning.
The Constitution says “an accurate and detailed statement of the receipts and expenditures of the public money, the several amounts paid, to whom and on what account, shall, from time to time, be published as may be prescribed by law.”
The four-member Supreme Court majority rejected the clear guidance of that provision. It allowed secrecy of information about payments to drug suppliers on account of a 2015 state law. The publication requirement is met if the state possibly could provide the information under a protective court order, the Supreme Court ruled in bald political deference to the legislative branch.
Justice Robin Wynne said publish means public. He makes too much sense for the four voting to upend the Constitution. They would let the Arkansas legislature decide what the public may know or not know, no matter what the Constitution says. Because believe it: This interpretation could be applied to virtually every expenditure of state dollars if the legislature were to choose, from their own expense reimbursements on up. The wiggle room the four justices found could be used to wiggle around anything.
Jeff Rosenzweig, John Williams and Deborah Sallings, attorneys for Death Row inmates, argued: “The Publication Clause mandates that payees of public money be disclosed to the general populace. But the Court’s reading of the term ‘published’ will allow the legislature to impose any restriction it wants on distribution, including an outright ban. The Constitution’s text does not permit that.”
No, but Justices Courtney Goodson, Karen Baker, and Rhonda Wood, who’ll be with us for years to come, did permit it (joined, lamentably, by Chief Justice Howard Brill, who’ll be leaving the court at the end of the year after otherwise distinguished appointed service). If this is any indication of where the court majority is headed in dealing generally with an already overreaching legislature, you may further abandon thoughts of a meaningful three-branch government. Replacing dissenter Justice Paul Danielson will be Republican Shawn Womack, a former Republican senator whose campaign highlights included a misunderstanding of the U.S. Constitution’s equal protection clause (he thought it entitled him to a pay raise as a circuit judge) and his Republicanism. In other words, the public is screwed.
The Court said the provision wasn’t “self-executing.” It said the legislature could prescribe the time and means of disclosure (including never.). Laughably, the Court in upending the plain language of the Constitution cited what has been foundational law: “Language of a constitutional provision that is plain and unambiguous must be given its obvious and common meaning.” Except in this case when the legislature tells them to do otherwise.
This is a more unseemly matter than a mere debate on public information. The Court justified secrecy because it makes it easier for the state to obtain back-alley drugs from dubious sources. In an open process, reputable pharmaceutical companies don’t want to be identified as sources of substances used to kill people. Expedient execution, the court said, outweighs free speech. Not a shining moment for the legislature that passed the law, but even more inglorious for the last bastion of constitutional principles, the Supreme Court.