Kentucky: Administrative law does not govern LI regulations

Kentucky: Administrative law does not govern LI regulations

Judge Sam McNamara in the Franklin Circuit Court in Kentucky on a motion to reconsider has held that regulations not governed by state’s administrative procedures act. The logic of the opinion seems to be in contrast to the courts in Maryland & New Jersey. This bombshell opinion comes barely over 24 hours before the Courts shut for the year. From that opinion:

The Plaintiffs have gone to great lengths in their various briefs to argue that an administrative regulation is necessary to inform the public of the lethal injection procedure. They contend that mere public discussion is insufficient and the formality of administrative notice and comment is required. This argument has little merit since the procedure and an appropriate forum are both readily available. The current lethal injection procedures are clearly enunciated on page 8 of the Kentucky Supreme Court’s November 2006 opinion. While not yet final, this opinion is a public record that is readily available to any citizen.

Requiring the Defendant to promulgate a regulation implementing the lethal injection statute would effectively prevent an execution under the statute. If an administrative regulation was required, the Department could not carry out a lethal injection execution until a regulation was properly promulgated. In addition to the required notice and comment period, public hearing, and two legislative oversight hearings, there will doubtlessly be litigation regarding each specific procedure the regulation must contain.