A legal challenge on how Montana carries out its death penalty is to go before a judge Wednesday while a death-row Canadian waits to hear whether he will be granted clemency.

The American Civil Liberties Union filed a civil lawsuit on Ronald Smith's behalf in 2008 that argues lethal injections used by the state to execute people are cruel and unusual punishment.

A trial is scheduled for September.

But a lawyer for the civil liberties union says both sides are asking the judge in Helena, Mont., to simply make a decision after hearing their arguments.

Ron Waterman says the judge is likely to reserve his decision until later in the summer.

Smith, originally from Red Deer, Alta., pleaded guilty almost three decades ago to killing Thomas Running Rabbit and his cousin Harvey Mad Man Jr. in 1983.

He has had his execution stayed until the civil case is resolved.

His request for clemency has been rejected by the Montana Board of Pardons and Parole, and his fate now lies with Montana Gov. Brian Schweitzer.