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The Montana chapter of the American Civil Liberties Union is asking a district court judge to rule that Montana's lethal injection protocol is unconstitutional, saying the execution protocol doesn't follow the state's own law.

During a hearing on Wednesday, the ACLU attorney said after the Legislature upheld the death penalty in 2011, the procedures changed to allow three injections. However, the state statute only allows for two.

The state argues there's no need to spell out the specifics, because lethal injections have been performed without problems in the past.

The ACLU also says the protocol should include medically-trained personnel to conduct the execution, but the state counters that the warden has the authority and that he makes sure everyone is qualified.

Judge Sherlock says he hopes to make a summary judgement on the matter without having to go to trial.

The Montana ACLU plans to file an amended complaint to a lawsuit against the state's latest death penalty policy.

Two inmates are on death row at the Montana State Prison in Deer Lodge, William Gollehon and Ronald Allen Smith.

The ACLU's original lawsuit was filed in 2008 on behalf of Smith, who has been on death row for the past 26 years. He pleaded guilty to killing two men near Marias Pass in 1982.

If the death penalty is carried out, Smith will become the fourth prisoner to become executed in Montana since the death penalty was reinstated in the 1970's.