Circuit Judge Wendell Griffen moved this morning to compel the state Correction Department to produce unredacted drug packaging on potassium chloride purchased for eight executions this month.
He says the state must produce the information by 9:30 a.m. or be held in contempt of court. Late in the day, the Arkansas Supreme court stayed the order
Griffen’s order early Tuesday followd the Arkansas Supreme Court dismissal of the state’s request for a delay in Griffen’s order last Thursday in a freedom of information suit. The court dismissed the appeal because the state attorney general had failed to include in its request a copy of Griffen’s order, filed Friday, as court rules require. The state said it would try again to delay Griffen with a new, complete appeal filing this morning.
At 7:41 a.m. this morning, Griffen filed a supplemental order. He reiterated that state law does not provide secrecy for manufacturers of execution drugs, only for suppliers. The state contends reporters have been able to use package inserts and labels to figure out suppliers. To an outsider, this sounds like a case of “too bad, should have written the law better.” The state, however, says it is hard to obtain the drugs when providers are known because people don’t want to be associated with the executions.
Note the all-caps conclusion of Griffen’s order:
At 9:25 a.m. today, the state filed an emergency request for a stay of the lower court order. Here’s its argument for, at a minimum, a temporary stay.
The state did not produce the material. So the judge set a contempt hearing for 9 a.m. Wednesday morning. The state was ordered to bring the material sought to the hearing.
Said Correction Department spokesman Solomon Graves:
While we respect Judge Griffen’s order, his original decision in the Shults matter is on appeal before the State Supreme Court.
Lawyers for Steve Shults, another Little Rock lawyer who’s asked for the drug information, asked that the request for a stay be denied because the state has little chance of prevailing on the merits. Their filing said there’s no evidence in the record that disclosure of the material Shults seeks would lead to discovery of the supplier. They argued the law extends only to the supplier of the drug for the execution, meaning the supplier that sold the drug to the Department of Correction, not any other transactions along the way.
The Shults lawyers also commented about his interest:
As to Mr. Shults’ interest, the State plans to carry out the largest mass execution this century within the next 14 days. Mr. Shults, as a citizen of Arkansas, has an interest in ensuring that those executions are carried out properly and according to the law. His interest, and the interest of the citizens of Arkansas, should not be taken lightly or dismissed simply because he is not a condemned prisoner.
Late in the afternoon, the Supreme Court stayed Griffen’s order. That means no contempt hearing. It was a brief oder speaking for the court granting immediate emergency stay.
But it noted that new Justice Shawn Womack would have also ordered the return of redacted information previously provided to Shults and issued a protective order preventing the judge or anyone else from providing that information to anyone else. His reasoning for that was not included in the order. Womack is a former Republican senator and deeply political in his race for office. This is a pretty good indication of what can be expected from him, I’d guess.
Attorney General Leslie Rutledge’s spokesman Judd Deere issued this statement:
“Arkansas law requires the Department of Correction to keep confidential all information that may lead to the identification of those who test, sell or supply the drug or drugs used in the execution process. Attorney General Rutledge is pleased that the State Supreme Court acted quickly to stay the lower court’s ruling while the appeal proceeds.”