Attorneys for five condemned inmates want a judge to reverse a decision by the Council of State that kept North Carolina's execution protocol intact.
Executions remain on hold because of a series of legal challenges to the death penalty, including the inmates' challenge to how executions are carried out.
Last year, the state changed its lethal injection process to satisfy U.S. District Judge Malcolm Howard, who demanded that a doctor oversee an execution, and the state medical board, which said it would punish any doctor who takes an active role in an execution.
The Council of State took up the protocol issue after Superior Court Judge Donald Stephens decided a nearly 100-year-old law requires the council to approve changes to North Carolina's method of execution.
The appeal, filed Monday in Wake Superior Court, says Council of State members approved the new execution protocol without allowing the inmates' attorneys to be heard. That exclusion violates the inmates' constitutional right to due process, the appeal says.
The council has shirked its responsibility by failing to fully examine North Carolina's execution method, said Lucy Inman, one of the inmates' attorneys.
The council decided in February that a physician must monitor a condemned inmate's "essential body functions" and tell the warden of Central Prison if the inmate shows signs of suffering.
The prisoners filed a lawsuit then against the the council, contending it should have heard arguments from their attorneys before setting the revised protocol.
Stephens said their lawsuit should be heard in an administrative hearing.
Administrative law Judge Fred Morrison Jr. ruled that the council should have allowed the attorneys to participate in its decision and directed the council to reconsider. The judge allowed the attorneys to submit written information about the protocol to the council before its reconsideration.
But when the council met again in October, it refused to reconsider its approval and again excluded the inmates' attorneys from participating. The council did not mention whether it had reviewed the submitted information or even addressed the execution protocol.
The council, instead, focused entirely on Morrison, saying he did not have jurisdiction to direct the council to reconsider.
"The Council of State voted to approve a motion which ... had been prepared in advance of the meeting," the appeal says.
The Attorney General's Office, which represents the council, said it has not received the appeal and did not comment Monday.
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