MOTION FOR OPPORTUNITY TO BE HEARD - Arthur Rutherford

Wednesday, October 18, 2006

MOTION FOR OPPORTUNITY TO BE HEARD - Arthur Rutherford

http://www.arthurrutherford.us/legal/Motiontobeheard.htm


IN THE SUPREME COURT OF FLORIDA

CASE NO. SC06-2023

ARTHUR DENNIS RUTHERFORD,
Petitioner,
v.
CHARLES J. CRIST, Attorney General of Florida,
JEB BUSH, Governor of Florida,
JAMES R. MCDONOUGH, Secretary, Florida Department of Corrections,
Respondents.

MOTION FOR OPPORTUNITY TO BE HEARD

COMES NOW, A.D. RUTHERFORD, Petitioner, by and through
undersigned counsel and moves this Court to allow him the
opportunity to be heard and as grounds therefore asserts:
1. Mr. Rutherford is presently scheduled to be executed on
October 18, 2006, at 6:00 p.m.

2. On October 17, 2006, Mr. Rutherford filed a Petition
Seeking to Invoke this Court’s All Writs Jurisdiction based on
Mr. Rutherford’s recently learning that on August 16, 2006, the
Department of Corrections promulgated a new lethal injection
protocol in order to establish new procedures for all subsequent
executions.

3. A few hours later, this Court entered an order
requiring Respondent’s to respond by 1:00 p.m., but precluding
Mr. Rutherford from filing a reply.

4. Shortly before 1:00 p.m., undersigned received the
1A cursory review of the two protocols makes clear that
there have been significant changes, contrary to the State’s
argument.
2
State’s response which attached the lethal injection protocol
which was adopted on August 16, 2006. Prior to today, the State
had refused to provide Mr. Rutherford with the new protocol,
despite his requests and despite pending litigation before the
various state, federal and the United States Supreme Court.

5. Mr. Rutherford respectfully requests that this Court
allow him the opportunity to be heard as to the State’s arguments
that this Court does not have subject matter jurisdiction to hear
his claim and that protocol enacted August 16, 2006, is not new.1

6. At its core, due process means that a party has an
opportunity to be heard. In light of the State’s disclosure this
morning, Mr. Rutherford must be allowed to be heard.

WHEREFORE, Petitioner, A.D. Rutherford, by and through
undersigned counsel, respectfully requests that this Court allow
Mr. Rutherford the opportunity to file a reply to the
Respondent’s arguments.

I HEREBY CERTIFY that a true and correct copy of the
foregoing motion has been furnished via electronic mail, to
Carolyn Snurkowski, Deputy Attorney General, Office of the
Attorney General, The Capitol, PL-01, Tallahassee, Florida 32399-
1050, and Charmaine Millsaps, Assistant Attorney General, Office
of the Attorney General, The Capitol, PL-01, Tallahassee, Florida
3
32399-1050, on this 17th day of October, 2006.
/s/ Linda McDermott
LINDA MCDERMOTT
Fla. Bar No. 0102857
/s/ Martin McClain
MARTIN J. MCCLAIN
Fla. Bar No. 0754773
McClain & McDermott, P.A.
Attorneys at Law
141 N.E. 30th Street
Wilton Manors, FL 33334
(305) 984-8344
Counsel for Mr. Rutherford