Lawyer Todd Doss warned against the DOC secrecy in Hill

I. PLAINTIFF’S DILIGENCE IN PURSUING HIS CLAIM

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In denying Mr. Hill relief this Court found that “Moreover,
Florida’s lethal injection methods were subjected to a full evidentiary hearing in 2000 in Sims v. State, 754 So.2d 657 (Fla.2000), and Hill could have challenged the procedure after the Sims decision was rendered.” Order Dismissing Complaint, at 7.

This Court then goes on to state, “Hill has offered no reason forhis delay in bringing a §1983 action until just days before hisexecution. Therefore, under the authority of Gomez, Nelson, and Hill, this Court finds that Hill has delayed unnecessarily inbringing his §1983 challenge of Florida’s lethal injection procedure, and his complaint must be dismissed.” Order DismissingComplaint at 7-8 (citations omitted).

This Court’s analysis of Mr. Hill’s perceived delay in bringing his claim is erroneous and incomplete.

Mr. Hill did not unduly delay in bringing his claim. Rather, as is explained in his motion for temporary injunction, Mr. Hill could not have brought his claim prior to the time his execution date was set.

In support of this position, Mr. Hill stated as follows:

E. NO UNNECESSARY DELAY IN BRINGING MR.HILL’S CLAIM

Mr. Hill diligently pursued his claim as soon as it ripened. His claim became ripe when his death warrant issued, because it was only at that point that he could ascertain the specific means by which the State would carry out his lethal injection. See Worthington v. Missouri, 166 S.W. 3d 566, 583n.3 (Mo. 2005).

That is so because theDepartment of Corrections retains complete

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In contrast, Florida prescribes, with careful detail, the chemicals to be used in animal euthanasia and the chemicals that are prohibited for such use (including any neuromuscularblocking agent); a strict “order of preference” for the manner in which the lethal solution is to be administered; the qualifications that a person administering the lethal solution must possess; and a 16-hour “euthanasia technician course” that anyone administering the lethal solution must have taken.See Fla. Stat. 828.058.

The statute goes on to detail the minimum topics that the certification course must cover (including pharmacology, proper administration and storage of euthanasia solutions) and the manner in which the curriculumfor the course is to be approved (by the Board of VeterinaryMedicine). See id. at 828.058(4)(a).-4-discretion over how lethal injections will be carried out, and shrouds its intentions in secrecy.

No Florida statute provides the chemical sequence to be used, the procedures for administering it, any qualifications or training required for persons engaged in administering the chemicals and monitoring the execution, or the means of venous access.3

Nor does any Florida statute even require that such procedures be devised through rule-making process, or in consultation with medical experts. Compare Fla. Stat. § 828.055 (requiring Board of Pharmacy to adopt rules for the issuance of permits authorizing the use of chemicals in animal euthanasia, which “shall set forthguidelines for the proper storage and handling” of the chemicals); 828.058(requiring training for animal euthanasia technicians involving a curriculum approved by the Board of Veterinary Medicine). And the Department has not itself decided to publish any definitive set of procedures through rule-making or otherwise.

The Department, therefore, retains total discretion to change the chemical sequence,the manner of administration, the qualifications and training of the execution team, and any safeguards to ensure proper administration and adequate anesthetic depthat any time and with respect to any Case 4:06-cv-00032-SPM Document 43-1 Filed 09/06/2006 Page 4 of 244

The State of Florida has denied Mr. Hill any access whatsoever to records, policies, procedures, or any other information concerning its lethal injection protocols and procedures.-5-particular execution.

The State has never disputed that the Department has total discretion in this regard. The “central concern” of the ripeness doctrine “is whether the case involves uncertain or contingent future events that may not occur as anticipated.” Charles Alan Wright et al.,13A Federal Practice and Procedure § 3532, at112.

Accordingly, the ripeness inquiry looks to whether a sufficiently concrete and definitive agency policy or practice exists. Otherwise, judicial intervention would“den[y] the agency an opportunity to correctis own mistakes and to apply its expertise.”Federal Trade Comm’n v. Standard Oil Co., 449U.S. 232, 242 (1980).

As the Supreme Courtof the United States has explained in the analogous context of federal administrative review,[T]he ripeness requirement is designed“to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.”Ohio Forestry Association, Inc. v. SierraClub, 523 U.S. 726,732-33 (1983).

Here, rather than promulgate a definitive policy, DOC has retained total discretion over its process of lethal injection.

For this reason, it was only when Mr. Hill’s execution was imminent that he could ascertain what execution procedures would be applied to him. The State cannot fight tooth and nail to resist publication of any definitive protocol4, and then accuse the condemned person of inequitable conductCase 4:06-cv-00032-SPM Document 43-1 Filed 09/06/2006 Page 5 of 24