good morning to may please the court and paul barnes of the miss to be attorney general's office here on behalf of commissioner of corrections marshall fisher and the other state officials named as the defendants in this method of execution that that is improper plain is purported fourteenth amendment due process claim is simply state law statutory construction claim masquerading as a federal claim second even if this claim could survive the eleventh amendment bar the injunction entered by the district court which much too far it was not supported by the evidence and we're focusing today on count two of plaintiff's complaint because that's the only part of the complaint that the the record and if you look at the relief that the plaintiffs requested in the complaint there's nothing in there that would support the relief granted by the district court now the state doesn't have compound  currently that's correct and there's no an offer repeatedly your honor to stipulate in or abiding stipulation that the court that the state would not use compound it in a bar but all to execute these pointers but the district would not only complaint in accordance with the schedule entered by the court and the last part of the plummer injunction is just the very egregious nature of the district court to be use of discretion when the court went on to say that the state c violations yet that is exactly what the district court has done here count two is based on the allegation that the use of compound upon a bottle would violate section that in that nineteen fifty one because it is not an alter from what i can barbiturate or other similar drugs as mandated by the statute that is purely an issue of state law state law issues should be presented to the state courts of mississippi because it is with it is their realm of expertise it is the federal substantive due process clause you can search their brains in vain for any cites for citation to any method of execution case in which fourteenth amendment subset of due process has been the basis of the ruling now the principles of federalism say that we have dual core systems and that each should stay within their realm of responsibility the district court could not do that the district court never should have reached this state statutory construction issue plaintiffs obviously perceive that they have a love of the memory problems because they're their primary  support of our budget to dismiss we raised it at the pillar injunction hearings squarely presented it to the court of the fact that the court did not expressively address the eleventh the memmott in the short order that was in her and which was read to us by telephone does not mean that the issue was not raised and presented it was adequate just was not a matter of leaving something out of an appellate brief and raise it for the first time an appeal yet with the eleventh the minute even and arguments seem to waver back and forth between procedural due process and subject of you due process because they essentially argue they have a liberty interest that the state cannot arbitrarily violate will that's procedural away from this has nothing to do with the legality of it but it has everything to do with where this is going awfully apart from this case and so i did want to mention that to you because i think that that solves many many problems of th brief you know is not part of this this this argument but it doesn't dr he's a pain in that he just been espousing a one drug protocol for decades but it didn't stop the u s supreme court and glossed over the end of june from up holding fourteenth amendment due process claim it would not provide any greater protection than the eighth amendment and lots of we think was pretty devastating to very dim in our argument now as i mentioned in my opening the complaint lamb in the record without moving except standing up at the hearing and asking the court to go farther and without proof on the record about mid as a lamb and the district court accepted it and did that think to that extent it is moot because again we got the evidence in the record commissioner vision or sworn declaration says that we don't have it we can't get it and we won't use it if you're able to get it if we were able to get it again the state if we could get we we believe we did with mr fisher's affidavit but the fact that texas and georgia in missouri have been able to taint compound it in a bar batal does not mean that mississippi can get it because those states won't tell us where they got it they're not accepted this court circuit president says it should be accepted by the court we don't think that the fact that some other states are getting it somehow that we don't know when and cannot achieve changes the fact that this day can argument today let me start with this the district court did not abuse its discretion in finding a substantial likelihood of success on the merits on our climb that you need drug that is not that plaintiffs have a protected liberty interest in not being punished in any manner other than that is specifically set forth and directed by state law that is not unlike pin her wrist a claim based on state  violation of the fourteenth amendment due process because it is the essence is the core of the liberty interest that the state cannot confine and punish a person beyond or outside that even if you unpack it from the standpoint of a one thousand nine hundred three claim the thompson case which says that the use of explicitly mandatory language in connection with the stat establishment specified substantive predicates that limit discretion and forces a conclusion that the state has created a liberty interest here the statute says very specifically the manner of inflicting the punishment of death shall be by continuous intravenous administration of a lethal quantity of an ultra short acting barbiturate or other similar drug in combination with criminal chemical paralytic agent and then carries on the rest of the statute so the mississippi statute has the components that thompson talked about it's explicitly mandatory shall not may and it limits the discretion of the commissioner specifically to these particular classes of drugs and mississippi first just to be clear about the chronology here protocol the supreme court basically approves there's two answers to that your honor number one it shocks the conscience for a state to punish an offender in an unauthorized manner in a manner not authorized by the state's people so the supreme court could have said as it has said for example that it a very long term of years would be proportional w constitutional say in illinois but if the mississippi legislature has not determined that a forty year sentence is appropriate for burglary that would not be sufficient you could say that you can't make  maximum the chief at a correct time is the time it's in the sequence that's critical to avoid the difficulty exactly and mississippi has not done that in fact your honor when we moved the admission of the oklahoma protocol into evidence on the second day of the injunction hearing the counsel opposite said they never seen it before so mississippi the commissioner has not they're not using the glossop protocol if that's what what the if it can be said that the supreme court approved the glossop protocol they're taking modafinil lamb is their proposal and putting it into a protocol that was developed for another drug specifically said that when a method of execution is authorized under state law and then went forward with the eighth amendment it's eighth amendment discussion because oklahoma had approved the use of various drugs for their for their lethal injection protocol mississippi has not done that and it is in our judgment if if council o right that the state is allowed to violate the liberty interests of its residents by confining them or punishing them outside the have i'm having a little bit of trouble i can see how confining someone beyond fifty years or whatever the state statute says is a liberty issue i'm having more difficulty seeing examined life with one drug as opposed to another is a liberty issue it might be a due process issue that that the process wasn't followed to use the correct drug the punishment is the same which is death but the penalty of death in mississippi is in a particular fashion and these drugs are not the same hard time seeing habits you might have a procedural due process issue perhaps but i don't i'm having difficulty respectfully disagree the sentence is punishment in accordance with state law so that the commissioner would not be free to to use the firing squad for example well the list goes back to the  perspective why the statute would read the way it does and what dr heath said was that in mississippi with the use of continuous intravenous administration of the drugs that that using an light evidence what evidence is in the record that says that the evidence is what we asked the court essentially to take judicial notice of that from the opinion in glossop which says quite plainly that that this record why should we at least strike that part of the injunction well i think the court should should take into account the situation that existed this hearing was set for the twenty ninth of july of this year on all the way up through the twenty eighth of july the protocol that we were pleading against not only did not include the day slam but as we pointed out in our briefing to the district court counsel opposite had told a judge in another injunction based on the record in no please d m the district court in our view was within the discretion of the district court to recognize that mississippi was using a drug outside the category of the or other similar drug it does say all or other similar drugs your honor but it's going to be a question of interpretation what similar drug means and it was certainly within i haven't heard that there was any evidence in the record to support the conclusion that it outside erbitux it or other similar drug the reason let me answer that in two ways first of all  there was evidence in dr hitz affidavit about the purpose for that your honor we had eight hours you know they talk about about us having been the us ambushing them at this hearing we had eight hours and not only had they changed the drug they asked the state court to set an execution date thirty days ahead there was no practicable way for us to move that hearing understand why we should let you get the arrogance of this on we don't have a record your honor that we're talking about two different courts we could have asked for a continuance from the district court but the district court granting a continuance of the injunction hearing would not have had any effect on the state court which was being asked to set an execution date thirty days away from that hearing so that to change the and counsel opposite in their briefing had said on the when they argued this movement is from one that there would be ample time for us to litigate the merits of any new protocol to file a new court execution until their mini hearing on the new drive but only for from that perspective your honor only from a temporary restraining order perspective which would not have been and i don't know if that would have been long enough or not but the to do what to do what you the court is all three of your honor's is suggesting but if but if that be the case then i think you know it's certainly this and drunks and could be refined and set a new hearing specifically on the day slam but the point is we had said as early as the third of june that our due process claim did not the reason why it was not moot was because that there was a reasonable chance that the commissioner would again select a drug that was not within the statutory class of drugs and and we asked in that connection for the to bar the state from using anything that is not an ultra short acting burbage to it because otherwise we end up having a full trial on the merits on the use of it when for example whether  or is not an ultra short acting barbiturate or other similar drug that is the issue in the case with respect to count two and so what what counsel opposite is suggesting was that we would have been required to put on a whole trial on the merits on that point as opposed to saying your honor which is what we did your honor in glossop it's clear that mundane slam is a big bens a die as a pain it's in the same class of drugs as xanax it's that's correct your honor by agreement of the parties we had a scheduling conference and all parties agreed that gave opportunity for discovery for example this notion that the state of mississippi can't buy a drug that every other state that parties agree that mundane slam is not a barbiturate but that doesn't that's not the end of the statute or other similar well no it's not other similar drug to an ultra short acting barbiturate where's the evidence of that well that's what the statute says where's the evidence that it's not just at it doesn't say what it says or whether similar drug and where is the evidence that what this new drug does is not similar and what it does to the ult we did we did not put on evidence of the properties of the data like we did there was no time to do that and we would have been then seeking a plenary injunction two weeks or one week before an execution date act whether we can do with us is to do i mean it basically your argument is oh we didn't have time so we don't have evidence if you don't have evidence we can affirm my point your honor is that we didn't have time because the state changed the protocol the day before the hearing asked for thirty thirty days for an execution date and in our judgment yes thank court and challenge the use of the new drug in state court we told the state court that that that the federal court order was proceeding the federal court was proceeding to the plenary injunction that we had had the hearing we told the mississippi supreme court that that in our view mandates lambda not that the statutory mississippi the commissioner has taken the position that the full identity that documents related to lethal injection injection drugs are exempt from the public records act we've got a lawsuit pending about that we the commissioner then or the state of mississippi in mississippi you have to file a fully fact pled post conviction said that the state courts didn't have jurisdiction to consider that case and if they don't get the disclosure of that of the protocol and they don't anyway so what you're seeking claim we could fall it's i mean the only reason they even told us that they had it that they were using the dates land was because we were in federal court they were not obligated to tell us that i thought about what you said what's pending before the supreme court of mississippi what pending before the supreme court of mississippi is the state's motion to set execution date which they filed on the twenty eighth of july and you should have responded to that yes your honor we responded to that i think on the fifth what issue is your own from motions saying the first instance which we certainly think the court acted within its discretion in this order but i but yes as want to make sure i said that yes thank you i guess had to get here got to be careful and i'm just but obviously we would difficulties that we have here that men are just saying i know my time is long run that the district court's order though which actually says also enjoins the state from using pentobarbital specifically in its compound it say let me ask you one more time what prohibits you from going to state court and saying the protocol that the state now says it's going to accuse violates the state of mississippi state statute why do you not have a procedural vehicle to do that now yes do you have a procedural vehicle under mississippi law to say i'm not contesting my death sentence i'm contesting the manner in which the state proposed proposes to carry it out because it violates the mississippi statute can found such a lawsuit under mississippi law so you know why not because under that because that lawsuit has to be filed in hinds county and the hinds county circuit court granting a motion made by these defendants held that it was not proper to file in one thousand nine hundred three suit in state court i forgot to ready i understand under state law i understood i understand it was also under state law i'm just saying that it was not proper that turning general's office position is only a post conviction petition can be filed in the state courts of mississippi to raise the issue that is raised in this case and i still don't understand why that's not adequate we just because you can't get the pre discovery why can't you file the lawsuit with you with what now you have because the mississippi supreme court because the statute requires fact pleading your honor which is different from louisiana and that you know if we file a petition on the basis of what we know now then the state will move for its dismissal on the grounds that it does not adequately completely play in other words it's not even the next boss down that shouldn't have to try to bring your suit in see if they toss it out and then you have to argue later to us that it was ineffective rather than preempting the by saying seadrill due process and i still understand what state law says you cannot attack the method of execution in state court as being valid to the mississippi statute it is said we do not have jurisdiction to determine if the state statute can be interpreted this way our own statute we're not going to target not under ninety ninety three but directly under the statute yes your honor that's exactly what the court said the court said you're only remedy is to seek relief through the post conviction statute or post conviction statute is the where we're talking about one can there's no reason you can go to post conviction and court the statutory interpretation if she was not part of the state court like to maybe three action that was filed we did the attorney general's office we did the state did take the position that p c r was the way to go with the allegations that they were making successive i'm not sure you're out of politics i haven't had a chance to think that through but i believe but they certainly could raise this issue and the fact that there is no discovery shouldn't affect anything at all declaration from an expert will if they don't have it but they're doing that now anyway and i would like to point out that the focus of of the vast majority of the start was almost as a lamb and again as the court amply point out that had been pleaded  but to answer your respond to your statement only just seeing a bottom about the one drug protocol fourteen states currently have a one drug protocol seventeen states use a two or three drug protocol so there's actually not even a majority of states have gone to of the first part of my answer which to all this they haven't tried the second part of this i think they could now whether it's whether it is a free standing lawsuit or post conviction relief there  is a method and which they can challenge you know that the procedure a state law does is comply with the statute  just is that going to say since this is challenges the method of execution it is not successive and they have the right to proceed on the merits now we need to add like an answer and you can't ban the state because you're not a court you're not the mississippi supreme court i want to know what the  no execution is going to be the courts in the state courts of federal courts are not going to let mississippi to carry out an execution until the issue of my dad as a lamb has been litigated in one form or the other so when they do have a ride to challenge the use of a desert lamb because we changed the protocol so my answer stand here today i would i would have to say again off the top and i would say that it would not we're not a success but that is not my final call that i'm just so i believe they could they could then you can block them for having the initial challenge there seem appropriate and i'm saying that i that i would not say that they can't follow initial challenge there i think v c r be the appropriate vehicle ok i have a here that you share that to get them a hearing before the state court but that's that solves a lot of these problems by and your honor and and candidly when change the protocol so therefore the hearing because we're in addition to th the best answer i can which is i agree that they have a remedy in the state court to challenge this and i see my time has expired yes ma'am you know we talk about just vacating this because it's not supported by evidence but the part about the compound it into barber talk is supported arguably by evidence and so it would seem that that part would have to be vacated either on your original i've never seen the document that cancel handed me from he no you know we hadn't seen this if he hadn't handed me this and said this is an exhibit until just now but that does not mean we're not familiar with oklahoma's protocol enforcing that now richard jordan and thomas ludden have exhausted all of their state and federal appeals the only thing standing between them and executions is this lawsuit and richard jordan has been on and it's not like we just said oh yes which is put this off to do a lot and i don't want to yes but the bottom line is that the state and the victims families they are entitled to some final justice and after thirty eight years