Arizona Court of Appeals Division One Holds That A.R.S. § 13-757(A), Which Authorizes the Department of Corrections to Oversee Executions by Lethal Injection, Does Not Violate Arizona’s Separation of Powers Doctrine.

Several death-row inmates sued the State and Department of Corrections alleging that A.R.S. § 13-757(A), which requires the Department to “supervis[e]”  the “intravenous injection of a substance or substances in a lethal quantity sufficient to cause death,” violates Arizona’s separation of powers doctrine.  The inmates argued that the legislature failed to impose minimal procedural standards on the Department, based on the fact that the Department has recently deviated from its lethal injection protocol.  The inmates further argued that the statute allows the Department to change its execution protocol at the last second to perpetually evade judicial review.  The State moved to dismiss the complaint, arguing that the statute provides sufficient standards to guide the Department’s discretion and that the execution protocol has always been subject to judicial review.  The superior court granted the motion, and the inmates appealed. 

The Arizona Appeals Court affirmed.  Article 3 of the Arizona Constitution states that the legislative, executive and judicial “departments shall be separate and distinct, and no one of such departments shall exercise the powers properly belonging to either of the others.”  Although “the legislature alone possesses the lawmaking power and while it cannot completely delegate this power to any other body, it may allow another body to fill in the details of legislation already enacted.”   State v. Ariz. Mines Supply Co., 107 Ariz. 199, 205, 484 P.2d 619, 625 (1971).  Applying this principle to A.R.S. § 13-757(A), the Court held that the legislature acted constitutionally by providing “a sufficient basic standard, i.e., a definite policy and rule of action which will serve as a guide for” the Department.  Id. at 205-06, 4848 P.2d at 625-26 (quotation omitted).  The Court explained that it would be impracticable for the legislature to supply the details of the execution process; the Department’s current protocol spans 35 pages and includes complex procedures that are within the Department’s expertise.

The Court also rejected the inmates’ argument that the legislature, by failing to limit the Department’s authority to devise and revise an execution protocol, acted with the Department to undermine the judiciary’s duty to review the adequacy of the lethal injection procedures.  Although the Court acknowledged that the Department’s recent history of deviating from or changing its execution protocol at the last minute raised constitutional and separation-of-powers concerns, it explained that the legislature acted constitutionally by passing a constitutional statute.  Nonetheless, the Department’s implementation of the statute raised separation of powers concerns.  In deciding whether there has been a violation of the separation of powers doctrine, Arizona courts look to several factors, including the practical consequences of the allegedly usurping agency’s action.   State v. Donald, 198 Ariz. 406, 416, ¶ 37, 10 P.3d 1193, 1203 (App. 2000).  Although the Department’s last-second changes to the execution protocol implicate this factor, the Court noted that Arizona Courts have been able to review those changes, and thus held that the Department has not yet violated Arizona’s separation of powers doctrine.

Judge Norris authored the opinion; Presiding Judge Portley and Chief Judge Winthrop concurred