weekly
The case law rough for this week’s edition is here. Most notable are the lethal injection opinions from Kentucky & the Sixth Circuit
- Thomas Clyde Bowling v. Ky. Dep’t of Corr., 2009 Ky. LEXIS 291 (Ky 11/25/2009) Kentucky’s lethal injection protocol fails as it was not adopted in accordance with the Commonwealth’s Administrative Procedure’s Act. “Having reviewed the applicable law, it is apparent that the lethal injection protocol implements KRS 431.220, Kentucky’s lethal injection statute and, further, that significant portions of the protocol are not matters of internal management for the Department but rather statements of general applicability and policy which affect private rights. Pursuant to KRS 13A.100, the Kentucky General Assembly has required [*4] that such portions of the protocol be adopted as an administrative regulation.”
- Richard Cooey, II, Kenneth Biros v. Strickland, No. 09-4300 (6th Cir 11/25/2009) “In granting a stay of execution, the district court based its reasoning on concerns related to the old procedure. Because the old procedure will not be utilized on Biros, no basis exists for continuing the stay previously in effect. Whether a stay is warranted under the new protocol is not before us at this time. Should Biros bring a new challenge on this ground, the district court and we can consider whether he has met the requirements for granting a stay, including the requirement of establishing a likelihood of success on the merits.”
[By way of disclosure, years ago I briefly represented some of the litigants in the Kentucky matter.]
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