Date set for Hill hearing before Supreme Court

The Georgia Supreme Court has announced that Warren Lee Hill will have a hearing before the Georgia Supreme Court over the decision to change the drugs used for his execution.

The date has been set for the 10 AM session of court on Monday, November 5th.

Below is the entire release from the Georgia Supreme Court issued about the case:

At issue in this high profile case is whether the Georgia Department of Corrections' recent decision to replace a three-drug cocktail with one drug for executions was subject to the state's Administrative Procedure Act, which requires public hearings before such a change may be made.

FACTS: Warren Lee Hill was given a death sentence in 1991 after a Lee County jury convicted him of murder in the 1990 bludgeoning death of a fellow prison inmate, Joseph Handspike. Hill and Handspike were inmates at the Lee County Correctional Institute. According to the facts of the case, Hill was already serving a life sentence for murdering his former 18-year-old girlfriend, Myra Sylvia Wright, when on the morning of Aug. 17, 1990, he removed a two-by-six board embedded with nails that served as a sink leg in the prison bathroom and, as Handspike slept, pounded him in his head and chest with the board as on looking prisoners pleaded with him to stop. Handspike later died at the hospital. In 1993, the Georgia Supreme Court upheld his conviction and death sentence.

On July 3, 2012, the Lee County Superior Court entered an order authorizing the state Department of Corrections to execute Hill by lethal injection within the 7-day period between July 18, 2012 and July 25, 2012. The department originally scheduled Hill's execution for July 18, then rescheduled it for July 23. The change in date occurred at the same time that the Department of Corrections announced it was changing from a three-chemical execution method to a one-chemical method. On July 20, Hill's attorneys filed a complaint in Fulton County Superior Court seeking to declare the new procedure invalid and to prevent his execution by means of the allegedly invalid procedure. They also petitioned the court for a "writ of mandamus" to force the state to follow the rule-making procedures required by the Administrative Procedure Act. And they filed a motion to stay Hill's execution pending the resolution of his claims.

On July 23, 2012, the day his execution was scheduled, the Fulton County Superior Court ruled the Administrative Procedure Act did not apply and denied a stay of execution. Hill then appealed to the Supreme Court of Georgia, and hours before his execution, this Court unanimously granted Hill a stay so it could consider his appeal. (On the same day, in a separate order, the high court denied Hill's request to appeal a Butts County Superior Court ruling, which found that Hill had failed to prove he was mentally retarded beyond a reasonable doubt and that the "beyond a reasonable doubt" standard was constitutional.)

ARGUMENTS: Hill's attorneys argue the lower court erred by dismissing Hill's challenge to the new lethal injection protocol. Official Code of Georgia 42-2-11 states the Board of Corrections is authorized to adopt and put into place rules "governing the transaction of the business of the penal system of the state." The same law states: "All rules and regulations adopted pursuant to this Code section shall be adopted, established, promulgatedâ|and published in accordance with the applicable provisions and procedure as set forth in Chapter 13 or Title 50, the 'Georgia Administrative Procedure Act.'" Therefore, Hill's attorneys argue, if the new lethal injection procedure is a "rule," it is invalid unless it is put into place in compliance with the APA. The key question, they argue, is whether the new legal injection protocol is a "rule." "The Procedure is a rule within the meaning of Title 42 and the APA," Hill's attorneys argue in briefs. "Because Appellees ignored Title 42 in the promulgation of the Procedure, it is invalid and cannot be used to execute Mr. Hill." The Department of Corrections developed the procedure "hastily and in secret, and claim that the public has no interest in it. But no issue is of more vital concern to the public than the manner in which the State conducts executions." The public "has an interest in knowing that executions are carried out according to lawful procedures and that every step of the process, including the selection and procurement of lethal injection drugs, is lawful. As such, Appellees cannot argue that the Procedure is simply an internal management statement, interpretive rule, or general statement of policy that does not affect private or public rights."

The state argues the trial court correctly ruled that the Department of Corrections' lethal injection protocol is not a rule triggering the procedural requirements of the Administrative Procedure Act. "Were this to be the law, death penalty litigation could soon dominate the administrative arena and an overly broad construction of the term 'rule' would have far reaching effects on the administrative rules and regulations used by a host of state agencies," the state argues in briefs. "It would only be a matter of time before the judicial system is flooded with new prisoner lawsuits regarding the failure to follow the APA process in every minor administrative matter." The Department of Corrections has always had a protocol for carrying out court ordered executions. "Those procedures have never been adopted as 'rules' under the Administrative Procedure Act," the state contends. Neither the Board of Corrections, the Department of Corrections, nor the Commissioner of Corrections is an "agency" under the APA. All statutory mandates regarding lethal injection are directed exclusively to the department and the commissioner and not to the board. "The Board of Corrections, being exempted from general application of the APA, is required to adopt rules only in limited areas, which do not include the regulation of lethal injection protocols," the state argues. "Even if one assumes that the protocol is a proper subject for the Board's rule making, the protocol would still fall under one of the exceptions to the definition of rule or one of the exemptions from compliance with the rule making procedures."
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