By Ruth Brown, Idaho Reports
The Idaho Supreme Court on Tuesday sided with the lower court regarding the Department of Correction’s standard operating procedures around execution.
The case was brought by attorneys for Gerald Pizzuto Jr., who narrowly avoided execution in June.
The appeal concerned whether an execution protocol adopted by the Idaho Department of Correction was required to comply with administrative rulemaking procedures used by the legislature. A district court determined IDOC was not required to use the policy and the Supreme Court agreed.
Justices Robyn Brody, Greg Moeller, G. Richard Bevan and Justice Pro Tem Roger Burdick all agreed, with Justice John Stegner dissenting.
In March 2021, IDOC Director Josh Tewalt published a document detailing the “standard operating procedure” for executions carried out by IDOC. Pizzuto’s attorneys argued that it did not follow the state’s rulemaking procedures.
According to the court opinion, IDOC continued to assert they are exempt from the APA because the Board of Correction granted the exemption. Pizzuto argued he was wrongfully denied the opportunity to amend his complaint.
The Idaho Administrative Procedure Act is the law governing procedures for state administrative agencies to propose and issue regulations.
In a dissenting opinion, Stegner wrote “Specifically, I take issue with the majority’s conclusion that the word “any” in section 19-2716 means something other than “every” or “all.” In my view, Idaho Code section 19-2716 requires the Director of the IDOC to adopt procedures involving the execution of every person sentenced to death in compliance with the requirements of the Idaho Administrative Procedures Act. Accordingly, I would reverse the district court’s decision and remand the case for further proceedings.”
Pizzuto Jr., 65, has been on death row for more than 35 years for the 1985 murders of Delbert and Berta Herndon. In December, the Idaho Commission of Pardons and Parole recommended his sentence be commuted to life in prison, but Gov. Brad Little denied the recommendation.
Pizzuto’s attorneys argue that Little does not have the constitutional authority to deny the commission’s recommendation, per the Idaho Constitution.
An Idaho County District judge agreed and sided with Pizzuto, but the governor’s office has said it will appeal to the Idaho Supreme Court.
That has not yet gone before the Supreme Court for arguments. Meanwhile, 2nd Judicial District Judge Jay Gaskill said in an opinion he will not sign another death warrant for Pizzuto while appeals are pending.