Armenia Cudjo, Jr. v. Robert Ayers, Jr.

Filing 67

Filed (ECF) Appellant Armenia Levi Cudjo, Jr. Motion to take judicial notice of Orders on Morales v. Cates, 757 F. Supp. 2d 961 (N.D. Cal. 2010) and Mitchell Sims v. California Department of Corrections and Rehabilitation, et al., CIV 1004019, Superior Court, State of California, Marin County, filed December 10, 2011. Date of service: 01/27/2012. [8048243] (JLL)

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EXHIBIT A 1 a.N.IwaJ L 2 3 DEC 1 q nil • 4 111, ER Court Executive Officer MARIN COUNTY SUPERIOR COURT 5 By: .1 Charifa, 7 8 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 COUNTY OF MARIN 11 12 MITCHELL SIMS, Plaintiffs, 13 14 15 16 CIV 1004019 FINAL RULING RE PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT VS. CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION,, 17 Defendants. 18 19 20 ALBERT GREENWOOD BROWN, JR. and KEVIN COOPER, 21 Plaintiffs-in-Intervention. 22 23 24 After Issuance of the court's tentative ruling regarding Plaintiffs' motion for summary 25 judgmeni:, argument requested by defendants was heard on December 16, 2011. Attorneys 26 Sara J. Eisenberg and Jaime Huling-Delaye appearing on behalf of Plaintiff Mitchell Sims, 27 attorney Sara Cohbra on behalf of Intervenor Albert Brown, and attorney Cameron Desmond on 28 1 2 3 behalf of Intervenor Kevin Cooper. Attorneys Jay Goldman, Michael Quinn and Marisa Kirchenbauer appeared on behalf of Defendant California Department of Corrections and Rehabilitation, et al. Following respective arguments by attorney Goldman and attorney 4 Eisenberg, the Court finds no new evidence or other grounds on which to base a change in its 5 6 tentative ruling, the core of which establishes that Plaintiffs met their burden to prove that the identified defects within the entire regulatory scheme, collectively, if not singly, constitute a a substantial failure by the Department to comply with the procedures mandated by the 9 10 11 12 13 Administrative Procedures Act, resulting in invalidation of the lethal injection administration and protocol. The court adopts its tentative ruling, as briefly modified, as the Final Ruling. RULING Plaintiffs' motion for summary judgment (Code Civ. Proc. § 437c(p)(1)), on their 14 Declaratory Relief action to invalidate Defendant California Department of Corrections and 15 16 Rehabilitation's three-drug lethal injection protocol (Cal. Code Regs., tit. 15, §§ 3349-3349.4.6, 17 "Administration of the Death Penalty" (hereafter Regs., § ), is granted as follows: 18 A, For the reasons discussed below, the court finds the undisputed evidence supports 19 20 21 22 Plaintiffs' second cause of action alleging Defendant substantially failed to comply with the mandatory procedural requirements of the Administration Procedures Act (APA) when it adopted these regulations, in violation of Govt. Code § 11350(a). 23 24 1. The Initial Statement of Reasons (ISOR) and the Final Statement of Reasons (FSOR) each 25 substantially failed to comply with the APA requirements by not considering and describing 26 27 • alternative methods to the three-drug protocol; by failing to provide a sufficient rationale for 28 rejecting these alternatives; and by failing to explain, with supporting documentation, why a one-drug alternative would not be as effective or better than the adopted three-drug 2 procedure, in violation of § 11346.2(b)(3)(A) and § 11346.9(a)(4). "If an agency adopts a 3 regulation without complying with the APA requirements it is deemed an 'underground 4 regulation' (Cal. Code Regs., tit. 1, § 250) and is invalid. [Citation]." (Naturist Action Committee 5 6 v. California State Dept. of Parks & Recreation (2009) 175 Cal.App.4th 1244, 1250.) 7 In the ISOR, which statement was repeated verbatim in the FSOR, the Department described 8 the purpose and rationale of the three-drug procedure and its decision to reject alternatives to 9 10 11 the three-chemical protocol it was proposing, in its effort to comply with Govt. Code § 11346.2(b)(1): 12 13 In light of the Memorandum of Intended Decision, and as directed by the Governor, the CDCR reviewed all aspects of the lethal injection process and its 14 implementation. As an integral part of the review, the CDCR considered alternatives to the existing three-chemical process, including a one-chemical 16 process. Additionally, in developing this proposed regulation, the CDCR was 17 guided by the United States Supreme Court's decision in Baze v. Rees (2008) 553 18 U.S. 35, which held that the State of Kentucky's lethal injection process, and the 19 administration of the three-chemicals, did not constitute cruel and unusual 20 punishment under the Eighth Amendment. CDCR also reviewed all available 21 lethal injection processes from other states and the Federal Bureau of Prisons, 22 23 24 and reviewed the transcripts and exhibits in the Morales v. Tilton case. Based on the information considered, the CDCR revised the lethal injection process as set forth in this proposed regulation. (Ex. 6, p. 2; Ex. 7, p. 2 emphasis added.) 25 26 27 28 The rationale for adoption of the three-drug procedure, as underlined, is false. Defendant concedes that the decision to adopt the three-drug protocol was decided in May 2007, before the decision in the U.S. Supreme Court case of Baze v. Rees (2008) 553 U.S. 35, 1 2 upholding Kentucky's similar three-drug lethal injection protocol from an Eighth Am. challenge. (Undisputed Fact No. 840) In its opposition, the Department admits: 4 5 The ISOR and FSOR inaccurately stated that CDCR's decision to adopt the three- 6 drug lethal-injection method found in the regulations and to reject the one-drug 7 alternative preferred by Plaintiffs, was primarily based on the United States 8 Supreme Court's decision in Baze v. Rees (2008) 553 U.S. 35. (Oppo. p. 20, n. 6 11 9 4.) 10 11 12 13 14 15 The CDCR also concedes: The decision to use the three-drug procedure was made in May 2007 by Governor Schwarzenegger. (Undisputed Fact No. 9) Thereafter, in 2008, the Supreme Court upheld the constitutionality of a three-drug method, and refused to determine the constitutionality of a one-drug method, in Baze v. Rees. Subsequently, the decision to use the three-drug procedure was not revisited by 16 Governor Schwarzenegger in the course of drafting the lethal injection 17 regulations. (Undisputed Fact No. 10, Ex. 9, p. 4) 18 Additionally, the Undisputed Evidence shows the ISOR did not provide any description of the 19 20 "one-chemical process". (Undisputed Fact No. 2) The ISOR did not identify or describe any 21 alternatives to the "one-chemical process." (Undisputed Fact No. 3); nor did Defendant provide 22 any reasons for rejecting any alternative to the three-chemical process that were purportedly 23 24 25 26 considered. (Undisputed Fact No. 4) The FSOR states, in conclusory language, the same reason for selecting the three-drug procedure as described in the ISOR, ante. It is also undisputed the FSOR states, without 27 elaboration: "The Department has determined that no alternative considered would be more 28 4 1 effective in carrying out the purpose of this action or would be as effective and less burdensome to affected persons." (Undisputed Fact No. 5, Ex. 7 p. 9). 3 Also, nowhere in the FSOR is there any description of the alternative(s) the CDCR considered; or 4 any discussion "with supporting information" explaining why the one-drug method would not 5 6 be: 1 more effective in carrying out the purpose of the regulation than the three-drug 7 procedure; or 2 — would be as effective and less burdensome to the condemned inmate, all in 8 violation of § 11346.9(a) (4). 9 10 The failure to discuss the one-drug method is a particularly significant omission, since use of a 11 barbiturate-only protocol was raised by at least one commenter (Ex. 13, p. 48, no. 13); several 12 cornmenters make the identical assertion that use of pancuroniurn bromide is unnecessary, 14 15 dangerous, and creates a risk of excruciating pain. (Ex. 13, p. 48, no. 12; p. 50, no. 18, 19; p. 51, no. 20); the CDCR stated in its responses to the court's inquiry in the federal action Morales v. 16 Cate, et al., a single-drug formula consisting of five grams of sodium thiopental is sufficient to 17 18 bring about the death of a condemned inrnate. (Undisputed Fact No. 12); and CDCR's own expert John McAuliffe testified that after conducting substant al research for his review of OP 20 770, he recommended to top CDCR officials to adopt the single-drug formula. (Undisputed Fact 21 22 23 24 No. 13.) The Department's attempt to fix any omission through its brief statement in the Addendum to the FSOR, that it selected the three-drug method in reliance on the decision in Baze V. Rees 25 (2008) 553 U.S. 35, is unavailing. As conceded by the Department, Baze V. Rees was not the 26 27 reason it chose the three chernical method, nor was it the reason for rejecting the one d rug 28 method, since Governor Schwarzenegger chose the three chemical rnethod in 2007 before the 1 2 Supreme Court decision was issued and there was never any discussion of an alternative method by the Governor at that time. 3 4 5 Also, the Addendum fails to describe any alternative, and does not describe Defendant's reasons for rejecting an alternative "with supporting information that no alternative considered by the agency would be more effective in carrying out the purpose for which the regulation is 7 proposed or would be as effective and less burdensome to affected private persons than the 8 9 adopted regulation." (Govt. Code §11346.9(a) (4).) 10 Importantly, inclusion of this information only in the Addendum to the FSOR, even if adequate, 11 12 13 does not promote "meaningful public participation" (Pulaski v. Occupational Safety & Health Stds. Board. (1999) 75 Cal.App.4th 1315, 1327-1328), as the public had no opportunity to 14 comment before the corrections were submitted to OAL 15 16 These defects infect the entire regulatory scheme, and the lethal injection administration and 17 protocol, as a whole, is declared to be invalid. 18 19 20 21 2. The ISOR fails to describe the purpose and/or the rationale for the agency's determination why certain regulations to be implemented five days prior to the execution, were reasonably 22 necessary. (Govt. Code § 11346.2; Regs., tit. 1, § 10 (b).) The 1SOR does not explain why it is 23 24 necessary for unit staff to monitor the inmate and to complete documentation every flfteen 25 minutes starting five days before execution (§ 33493.4(a)PD; why all personal property must 26 be removed from the inmate's cell (§ 3349.3.4(b)(3)); or why inmates must be bound with waist 27 28 restraints during visits. (§ 3349,.3.4(c) (3).) The ISOR merely summarizes the different procedures required five days prior to the execution, without explaining why the specific 2 provisions are necessary and/or how a specific provision fills that need. (Undisputed Fact No. 3 20) (ISOR Ex. 6, p. 16) Likewise, Begs., tit. 15, § 3349.4.5, which discusses the chemicals to be used in the lethal 6 injection and the administration of these chemicals, summarizes the procedure but does not 7 contain information explaining the rationale for the agency's determination that the three-drug protocol is "reasonably necessary to carry out the purpose for which it is proposed." (Govt. 10 Code § 11346.2(b).) This regulation itself refers to the Baze v. Rees decision, but as noted 11 above, this decision was not the basis upon which the Department decided to adopt the three12 13 14 15 drug protocol. Defendant's attempt to cure this deficiency in its Addendum to the FSOR comes too late in the rulemaking process. Accordingly, these individual regulations are deemed invalid. 16 17 18 Additional regulations Plaintiffs have cited in Appx. B to the memorandum of points and authorities (p. 12, n. 4), are not properly before the court as that document exceeds the page 19 limit approved by the court. 20 21 3. 22 23 24 The undisputed evidence establishes the FSOR did not summarize and/or respond to two dozen or so public comments, in violation of Govt. Code § 11346.9(a) (3). (Undisputed Fact No. 22-30) 25 It is also undisputed that in all, the Department received over 29,400 comments in writing and 26 27 from the public hearings. (Defendant's Undisputed Fact No. 2) 28 7 1 2 "Substantial compliance, as the phrase is used in the decisions, means actual compliance in respect to the substance essential to every reasonable objective of the statute. Where there is compliance as to all matters of substance, technical deviations are not to be given the stature 4 of noncompliance. Substance prevails over form." (Pulaksi, supra, 75 Cal.App.4th at p. 1328.) 5 6 Despite the large number of public comments properly addressed by the Department, the 7 failure to summarize or respond to these comments is not a "technical defect." Defendant a does not assert that the crux of any of these comments was addressed in other responses. The 9 10 purpose of the APA "to advance meaningful public participation in the adoption of 11 administrative regulations by state agencies", is met by giving "interested parties an 12 opportunity to present statements and arguments at the time and place specified in the notice 13 and calls upon the agency to consider all relevant matter presented to it." (Voss v. Superior 14 15 Court (1996) 46 Cal.App.4th 900, 908-909.) 16 By not summarizing and responding to these comments, the Department did not give substance 17 18 to the central APA requirement that all interested persons be afforded a meaningful chance to 19 have their objections heard and to inform the rulemaker's decision; i.e., to allow agencies "to 20 learn from the suggestions of outsiders and j} benefit from that advice." (San Diego Nursery Co. 21 22 23 24 v. Agricultural Labor Relations Board (1979) 100 Cal.App.3d 128, 142-143.) Additionally, the undisputed evidence establishes that some of the Department's responses to comments are incomplete, incorrect, or inadequate. (Undisputed Fact No. 31-36) 25 For example, about 15 commenters submitted comments objecting to the use of the second 26 27 drug, pancuronium bromide (the paralytic), on various medical and humanitarian grounds. 28 (Undisputed Fact No. 31) Despite the different grounds, the Department answered with the identical response to each comment summary: "The United States Supreme Court in Baze v. 2 3 Rees (2008) 553 U.S. 35 upheld the use of the three chemicals, including pancuronium bromide, identified in these regulations. Accommodation: None." (Undisputed Fact No. 32) This 4 broad, conclusory response is not a sufficient answer to explain why the Department initially selected, and continues to endorse the use of the second drug — pancuronium bromide, in light 7 of the specific medical and humanitarian concerns raised in these comments. The inadequacy of the response is especially troubling when considering the Department's admission that the 9 10 11 12 three-drug protocol was originally adopted without regard to the decision in Barn v. Rees (2008) 553 U.S. 35, and with no consideration of an alternative, one-drug protocol at that time; nor since that time has the Department described any alternative or explained why any 13 alternatives would not be equally or more effective than the method with pancuronium 14 15 bromide. 16 On this record, the court finds the FSOR substantially failed to comply with this requirement, 17 18 invalidating the adoption of these regulations. 19 4. 20 21 It is undisputed that Defendant did not mail a Notice of the Proposed Action to three civil 22 rights groups prior to the close of the initial public comment period (January 20, 2009), and 23 seven condemned inmates, all of whom had requested notice, in violation of Govt. Code § 24 25 26 27 11346.4 (a)(1). (Undisputed Fact No. 38-41) It is also undisputed that the three organizations and these inmates submitted comments during the initial comment period, ending January 20, 2009. (Undisputed Fact No. 38-41). 28 9 As to the population of inmates generally, Defendant presented evidence it posted the Notice 2 of Proposed Regulations throughout the departments and cell blocks in San Quentin, and at 3 other penal institutions in the State. (Undisputed Fact No. 41) Plaintiffs have presented 4 evidence that this may have been inadequate, as only the top sheet of these regulations was 5 6 visible through the glass cases. (Reply p. 10, De!aye decl. Ex. A) However, Govt. Code § 7 11346.4(f) provides: "The failure to mail notice to any person as provided in this section shall 8 not invalidate any action taken by a state agency pursuant to this article." In light of the 9 10 11 12 statute, and the fact the comments of these organizations and persons were prepared and submitted to the Department, a triable issue exists whether Defendant's violation of the APA is sufficient to invalidate the regulations. Summary judgment is not granted on this ground. 13 14 15 S. The undisputed evidence establishes Defendant did not make the complete rulemaking file 16 available for public review as of the date the Notice of the Proposed Action was published, in 17 18 violation of Govt. Code § 11347.3(a). 19 The Department did not make the rulemaking file available for public inspection until June 11, 20 21 2009, six weeks after the publication of the notice of proposed action on May f t, and less than 22 three weeks before the end of the public comment period on June 30, 2009. (Undisputed Fact 23 No. 45) 24 25 26 27 28 This violation is a substantial failure to comply with the APA, which defect undermined meaningful public participation in the rulemaking process. 1 2 3 Contrary to Mr. Goldman's argument, this court finds no support in the legislative purpose behind the APA to require Plaintiffs to show prejudice from Defendant's significant delay in making the rulemaking record available for public review. 4. 5 6 6. The rulemaking file itself was incomplete, in violation Govt. Code § 113473(b). It is undisputed 7 the rulemaking file did not contain several documents upon which the Department stated it 8 9 10 relied in drafting these regulations: the San Quentin Operational Procedure, OP 770, on which much of the proposed regulations were based; the transcripts, Judge Fogel's Statement of 11 Intended Decision, and the experts reports or declarations admitted as exhibits in the Morales 12 13 14 15 v. Tilton case; the lethal-injection process for the Federal Bureau of Prisons; responses by 15 states to the survey sent out by the CDCR and upon which it considered in drafting the revision to OP 770. (Oppo. p. 12, Undisputed Fact No. 50-63) 16 17 18 In light of this defect, the court finds the Department substantially failed to comply with this requirement of the APA. 19 20 21 7. Some of the regulations do not comply with the "Clarity" standard under the APA, which is 22 defined as "written or displayed so that the meaning of the regulations will be understood by 23 24 those persons directly affected by them." (Govt. Code § 11349(c); Regs., tit. 1, § 16.) 25 Regs. § 3349.3.2.(a)(1), which discusses the Warden's review of information bearing on the 26 27 28 inmate's sanity, conflicts with the agency's description of the effect of this regulation in the Addendum to the FSOR. (See Ex. 8, p. 11) 11 The explanation that information about the inmate's sanity can be received at any time prior to 2 3 the execution, conflicts with the language of the reguiation which limits information from the inmate's attorney to 7 days prior to the execution, at the latest. This creates an ambiguity in 4 violation of the APA and this individual regulation is invalid. (Regs., tit. 1, § 16(a)(2).) 5 6 Conversely, the court finds no conflict between the regulation distinguishing the places a state- 7 employed chaplain and an non-state employed "Spiritual Advisor" may communicate with the 8 inmate (Regs. § 3349.3.4(e)), and the Department's explanation of the effect of this regulation 9 10 11 12 in its responses to comments. (Ex. 50, pp. 61-63) The use of the term "reputable citizen" in Regs. § 3349.2.3, which provision restricts the number of witnesses in the viewing area, may have more than one meaning and is ambiguous 13 in violation of Cal. Code Regs., tit. 1, § 16 (a)(1). It is u nd isputed that this term is no where 14 15 defined in the regulations or in Pen. Code § 3605(a). It is also undisputed the term "citizen" can 16 mean the citizen of the United States or the citizen of a foreign country, or any non- 17 governmental employee. (Undisputed Fact No. 67) This term is archaic and ambiguous, and is 18 invalid. The Department should include a definition of this term along with the other 20 21 definitions currently found in Regs. § 3349.1.1. Plaintiffs have attached Appendix C, which contains other putative examples of ambiguous terms. These additional arguments are not properly before the court as they exceed the 23 24 expanded 35-page limit approved by the court. 25 8. 26 27 Plaintiffs' claim that certain regulations fail to meet the "Consistency" standard of the APA 28 12 1 2 defined as "being in harmony with, and not in conflict with or contradictory to, existing statutes, court decisions, or other provisions of law." (Govt. Code § 11349(d)), is rejected. 3 4 Plaintiffs have no standing to argue that the treatment of female condemned inmates under Regs. § 3349.3.6(e) violates the Equal Protection Clauses of the state and federal constitutions, claiming the operation of that provision denies female inmates, who have to be transferred 150 7 miles from the Central California Women's Facility to San Quentin, some the same rights as 8 9 10 male condemned inmates housed at San Quentin, e.g., 24-hour telephone access to their counsel (§ 3349.3.4(d),(4)(C); access to spiritual advisors (§§ 3349.3.4(e); 3349.4.2(b)(1)); and 11 pr ority visiting privileges. (§ 3349.3(i)(1).) 12 13 14 15 The all-male plaintiffs do not have standing to raise the Equal Protection challenges on behalf o condemned female inmates, because they do not claim to suffer the disparate treatment they hypothesize. (See Neil S. v. Mary L. (2011) 199 Cal.App.4th 240, 255.) "One who seeks to raise 16 a constitutional question must show that his rights are affected injuriously by the law which he 17 18 attacks and that he is actually aggrieved by its operation. [Citationsl" (People v. Superior Court 19 (2002) 104 Cal.App.4th 915, 932, internal quotations and citations omitted; 7 Witkin, Summ. 20 Cal. Law (10th ed. 2005) Const. Law, §76, pp. 168469.) 21 22 Also, there is no merit to Plaintiffs' claim that Regs. § 3349.1.2(a)(4)(8), "Recruitment and 23 Selection Process", conflicts with the order by the Federal District Court in the 2005 decision of 24 25 26 27 Plata v. Schwarzenegger, where the Judge appointed a Receiver to take control over positions "related to the delivery of medical health care" at CDCR: "The Receiver shall have the duty to control, oversee, supervise, and direct all administrative, personnel, financial, accounting, 28 13 contractual, legal, and other operational functions of the medical delivery component of the 2 3 CDCR." (Request to Take Judicial Notice, Ex. D, p. 4, Undisputed Fact No. 72) Plaintiffs present no evidence that the District Court's order was at all concerned with the execution protocols at 4 San Quentin. Also, execution is not tantamount to the delivery of medical services. (See 6 Morales v Tilton (N.D. Cal. 2006) 465 F.Supp. 2d 972, 983 ("Because an execution is not a 7 medical procedure, and its purpose is not to keep the inmate alive but rather to end the 8 inmate's life, .. 9 10 9. 11 There is no merit to Plaintiffs' next contention that the regulations substantially fail to comply 12 13 14 15 with the APA because the regulation incorporates documents by reference, without subjecting those documents to the APA review process, in violation of Cal. Code Regs., tit. 1, § 20. In responses to comments about the procedures for execution by lethal gas and the execution of 16 condemned female inmates, the Department indicated these areas would be the subjects of 17 18 separate documents and/or regulations. (Undisputed Fact No. 75-76) 19 At the time of approval of the subject regulations, neither referenced document existed, nor 20 21 are these documents referred to in the language of the regulations. On this record, there is 22 insufficient evidence to show the regulations under review attempted to incorporate by 23 reference these proposed documents within the meaning of the law, and therefore the 24 25 26 regulations do not violate this requirement of the APA. That said, unless and until these prospective, separate documents/regulations have been 27 drafted and approved following successful completion of the APA review and public comment 28 14 process, the Department has no authority under Regs., tit. 15, §§ 3349-3349.4.6, to carry out 2 3 the execution of condemned inmates by lethal gas, or to execute any condemned female inmate. 4 5 6 10. The Department has failed to include a fiscal impact assessment of the administration of 7 execution by lethal injection as proposed by these regulations, in violation of Govt. Code § 8 9 10 11346.5(a). There is uncontradicted evidence that there will likely be increased costs from hiring and/or training of additional members for the lethal injection sub-teams; plus overtime 11 compensation for the supporting staff; as well as the additional costs of the three drug method 12 13 14 15 vs. the one-drug method; and also the reimbursement by the CDCR for extra state and local law enforcement personnel to handle security matters, crowd control, and traffic closures prior to and on the night of the execution. (Undisputed Fact No. 78-80) Former San Quentin Warden 16 Jeanne Woodford stated in a public comment, that past executions by lethal injection have cost 17 18 between $70,000.00 and $200,000.00 each. (Undisputed Fact No. 79) It is no excuse, as 19 Defendant argues, that either fiscal estimates or supporting documents were not required 20 because "the costs and fiscal impacts of lethal-injection executions are caused by the fact that 21 22 the Penal Code, not a regulation, mandates this type of execution." (Oppo. p. 13:20-21) 23 The APA gives the public a right to know and to comment on the fiscal impact of implementing 24 25 26 a regulation adopted pursuant to a state statute, if for no other reason than to recommend more efficient or less costly methods of accomplishing the statutory purpose. The Department 27 28 15 1 was required to prepare the fiscal estimate as prescribed by the Department of Finance. Its failure to do so was substantial noncompliance with the procedural requirements of the APA. 3 4 5 6 B. Separately, the court denies Plaintiffs' motion for summary judgment on their first cause of action, which alleges there is no substantial evidence in the rulemaking file to show the use of the second drug — pancuronium bromide and/or the third drug — potassium 7 chloride are "reasonably necessary" to effectuate the purpose for which the regulations are 8 9 proposed, as required by Govt. Code §§ 11342.2, and 11350(b) (1). (Complaint ifs 30-41) 10 Since this is Plaintiffs' motion for summary judgment, Plaintiffs have the burden to show there 11 12 is no substantial evidence in the rulemaking file, when considered in its entirety, to support the 13 agency's determination the three-drug injection protocol is reasonably necessary to effectuate 14 the purpose of the statute. (Govt. Code §§ 11349(a) [defining "Necessity"}, 11350(b) (1); 15 16 Desmond v. County of Contra Costa (1993) 21 Cal.App.4th 330, 336-337.) 17 For our purposes, "substantial evidence" is defined as whether, based on the entire record, 18 19 20 21 there is evidence which is reasonable in nature, credible, and of solid value, contradicted or uncontradicted, which will support the agency's determination. (Desmond, supra, 21. Cal.App.4th at p. 336.) 22 23 24 It is undisputed the rulemaking file contains documents favorable to Defendant; e.g., that caution against acceptance of using thiopental alone to guarantee a lethal effect. (Undisputed 25 Fact No. 85, Ex. 55); or confirms the experience in other states that proper application of the 26 27 same three-drug method will result in a rapid death of the inmate without undue pain or 28 suffering. (Undisputed Fact No. 86, Ex. 56, p. 931) 16 In fact, one of the articles relied upon by Plaintiffs (Undisputed Fact No. 90) indicates that it 2 3 might not be possible to administer enough thiopental by itself, to guarantee a lethal effect. (Undisputed Fact No. 90, Ex. 58, pp. 2, 12) 4 5 6 On this record, the court finds that a triable issue of fact exists over whether the rulemaking file contains substantial evidence to support Defendant's determination that the three-drug 7 protocol is reasonably necessary to implement the statutory mandate to provide for a lethal 8 9 injection alternative. The motion for summary judgment on this ground is denied. 10 Plaintiffs also argue in a footnote that the rulemaking file does not contain substantial evidence 11 12 to support the CDCR's determination of necessity of several other regulations. (MPA p. 34, n. 13 20.) It is improper to briefly raise these issues in a footnote and expect the court to conduct 14 a substantial evidence review. Plaintiffs have provided no citation to the law, to the record, or 15 16 17 18 any analysis of the law to the facts. By attempting to raise these additional issues in a footnote, Plaintiffs are violating the intent and spirit of the court's order allowing them to file an oversized brief. These issues are not properly before the court, and the court refuses to 19 address these issues at this time. 20 21 Plaintiffs' Request to Take Judicial Notice of documents filed in separate federal actions, is 22 granted. ( Ey. Code § 452(d).) Defendant's objections to these requests are Overruled. 23 24 Defendant's evidentiary objections Nos. 1-3 are all Overruled. 25 Plaintiffs' shall submit a Judgment in this matter. 26 27 Dated: December 19, 2011 28 17 STATE OF CALIFORNIA ) COUNTY OF MARIN ) M1TCHELL SIMS VS. CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION ACTION NO.: CIV 1004 019 (PROOF OF SERVICE BY MAIL — 1013A, 2015.5 C.C.P.) I AM AN EMPLOYEE OF THE SUPERIOR COURT OF MARIN; I AM OVER THE AGE OF EIGHTEEN YEARS AND NOT A PARTY TO THE WITHIN ABOVEENTITLED ACTION; MY BUSINESS ADDRESS IS CIVIC CENTER, HALL OF JUSTICE, SAN RAFAEL, CA 94903. ON December 19, 2011 I SERVED THE WITHIN FINAL RULING RE PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT IN SAID ACTION TO ALL INTERESTED PARTIES, BY PLACING A IRUE COPY THEREOF ENCLOSED IN A SEALED ENVELOPE WITH POSTAGE THEREON FULLY PREPAID, IN THE UNITED STATES POST OFFICE MAIL BOX AT SAN RAFAEL, CA ADDUSSED AS FOLLOWS: SARA EISENBERG HOWARD RICE NEMEROVSKI CANADY FALK ,ItRABKIN, A PROFESSIONAL CORPORATION THREE EMBARCADERO CENTER, 7TH FLOOR SAN FRANCISCO, CA 94111 JAY GOLDMAN DEPUTY ATTORNEY GENERAL 455 GOLDEN GATE AVENUE, STE. 11000 SAN FRANCISCO, CA 94102 JAN NORMAN 1000 WILSHIRE BLVD. #600 LOS ANGELES, CA 90017 NORMAN IIILE 400 CAPITOL MALL SUITE 300 SACRAMENTO, CA 95814 I CERTIFY (OR DECLARE), UNDER PENALTY OF PERJURY UNDER THE LAWS OF THE STATE OF CALIFORNIA THAT THE FOREGOING 1 ,TRUE AND CORRECT DATE: (1- II EXHIBIT B Case3:06-cv-00219-RS Document531 Filed11/03/11 Page1 of 6 *E-Filed 11/3/11* 1 2 3 4 5 6 7 8 9 10 11 12 13 14 David A. Senior (# 108579) MCBREEN & SENIOR 2029 Century Park East, Third Floor Los Angeles, CA 90067 Phone: (310) 552-5300 Fax: (310) 552-1205 John R. Grele (# 167080) LAW OFFICES OF JOHN R. GRELE 149 Natoma Street, Third Floor San Francisco, CA 94105 Phone: (415) 348-9300 Fax: (415) 348-0364 Richard P. Steinken (admitted pro hac vice) JENNER & BLOCK LLP 353 N. Clark Street Chicago, IL 60654-3456 Phone: 312-222-9350 Fax: 312-527-0484 Attorneys for Plaintiffs ALBERT G. BROWN and MICHAEL A. MORALES 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION MICHAEL ANGELO MORALES, ALBERT G. BROWN, Plaintiffs, v. ) ) ) ) ) MATTHEW CATE, Secretary of the California ) Department of Corrections and Rehabilitation, ) et al., ) Defendants. ) _____________________________________ ) ) PACIFIC NEWS SERVICE, ) ) Plaintiff ) v. ) MATTHEW CATE, Secretary of the California ) ) Department of Corrections and Rehabilitation, ) et al., ) Defendants. ) CASE NO. C 06 0219 RS C 06 0926 RS JOINT PROPOSED SCHEDULE FOR COMPLETING DISCOVERY; [PROPOSED] ORDER; GENERAL ORDER 45 ATTESTATION CASE NO. C 06 01793 RS JOINT PROPOSED SCHEDULE FOR COMPLETING DISCOVERY Case3:06-cv-00219-RS Document531 Filed11/03/11 Page2 of 6 1 2 3 4 PROPOSED SCHEDULE FOR COMPLETING DISCOVERY Plaintiffs Albert G. Brown, Stevie Fields, Michael A. Morales, Mitchell Sims, and Pacific News Service and Defendants Matthew Cate, Secretary of the California Department of Corrections and Rehabilitation, Warden (Acting) Michael Martel, San 5 6 7 Quentin State Prison, and Governor Edmund G. Brown, submit the following joint proposal for further scheduling in these consolidated actions: 8 Acting Warden Michael Martel at San Quentin State Prison determined that he 9 needed until October 17, 2011 to select a new execution team. Notice re: Selection of 10 New Execution Team and Alternates, Oct. 5, 2011, at 2 (ECF No. 529). A new execution 11 12 13 team has now been selected. On July 15, Defendants served supplemental responses to interrogatories and 14 document requests propounded by Plaintiff Brown, initial responses to discovery 15 propounded by Pacific News Service, documents, a privilege log, and a supporting 16 declaration. On August 5, 2011 Defendants served additional documents and a privilege 17 18 log. Plaintiffs contend that the assertion of objections and privilege logs does not comply 19 with the Court’s previous order for “[d]efendants to produce the requested documents and 20 information and to answer the interrogatories.” Order, Mar. 9, 2011, at 5 (ECF No. 513); 21 see also id. at 2 n.1 (“grant[ing] Plaintiffs the same relief they would seek with [] motions 22 to compel.”). Defendants contend that the Court’s order merely resolved their motion for 23 24 a protective order regarding the permissible scope of discovery, and disagree with 25 Plaintiffs’ contention that the objections and privileges set forth in Defendants' discovery 26 responses fail to comply with this order. The Court further ordered the parties to “resolve 27 any further disputes amicably without bringing them to the Court.” Id. at 6. Plaintiffs 28 JOINT PROPOSED SCHEDULE FOR COMPLETING DISCOVERY 2 Case3:06-cv-00219-RS Document531 Filed11/03/11 Page3 of 6 1 and Defendants will meet and confer to attempt to resolve this dispute during the week of 2 November 7, 2011. 3 4 Upon review of the email documents produced by Defendants, Plaintiffs have noticed that numerous attachments to emails have not been produced. Plaintiffs have 5 6 requested the immediate production of these documents. Plaintiffs also are awaiting 7 additional discovery responses concerning the new team’s selection and training or 8 changes to the execution team personnel. Defendants will notify Plaintiffs of the creation 9 of additional documents concerning the team’s training (and produce such 10 documentation) and any changes to the team personnel in a timely manner as required by 11 12 13 14 15 16 Rule 26(e), and in any event, within 14 days following the creation of the document or the change to the team personnel, unless modified by agreement of the parties. Defendants intend to request that Plaintiffs meet and confer with them, in an effort by Defendants to obtain what Defendants view as responsive answers to written discovery propounded by Defendants in February 2011 to Plaintiffs Morales, Brown, 17 18 Sims, and Fields, and to obtain production of responsive documents from Plaintiffs. 19 Defendants will attempt to amicably resolve all discovery disputes without bringing them 20 to the Court. 21 22 Plaintiffs have begun to review the documents and information received on a rolling basis, in order to, inter alia, identify witnesses for depositions. Depositions will 23 24 be scheduled upon the completion of this review, and upon completion of review of any 25 other documents and information to be produced by Defendants. At this point, Plaintiffs 26 anticipate deposing witnesses with knowledge of the regulations and execution team 27 documents, document custodians, and present and former execution team managers and 28 participants. In this regard, Plaintiffs’ counsel have conferred with Defendants’ counsel JOINT PROPOSED SCHEDULE FOR COMPLETING DISCOVERY 3 Case3:06-cv-00219-RS Document531 Filed11/03/11 Page4 of 6 1 generally about the scheduling of the depositions (see L.R. 30-1), and counsel are aware 2 of and understand that counsel have other professional obligations, including trials, that 3 previously have been calendared. The parties will work together to schedule depositions 4 on dates certain when the witnesses and counsel are available. L.R. 30-1. 5 6 If a dispute arises during a deposition regarding a party’s assertion of a privilege, 7 objection, or instruction to a witness that cannot be resolved by conferring in good faith, 8 counsel will contact Judge Seeborg’s chambers pursuant to Local Rule 37-1(b) to ask if 9 the Court is available to address the problem through a telephone conference during the 10 deposition, or whether counsel can be directed to a Magistrate Judge to resolve the 11 12 13 14 15 16 matter. Counsel will advise the Court of the deposition schedule via e-mail to Mr. Kolombatovich when the depositions are set. Based upon counsel for Plaintiffs’ review of certain documentation produced by Defendants to date, Plaintiffs believe that it may be incomplete. Plaintiffs believe that these issues can be clarified during depositions. If the production of such records is in 17 18 fact incomplete, additional time will be required for Defendants to make complete 19 productions, for Plaintiffs’ counsel to review the records, and for the parties to complete 20 the depositions. 21 22 Once Defendants complete their discovery obligations set forth in the Court’s March 11, 2011 order and all supplements thereto, and Plaintiffs complete all non-expert 23 24 depositions, Plaintiffs will supplement their responses to Defendants’ contention 25 interrogatories in a timely manner, and in any event within 14 days, unless modified by 26 agreement of the parties. After the foregoing discovery has been completed, the parties 27 will identify expert information as required by Rule 26(a)(2), and present their experts for 28 depositions thereafter. JOINT PROPOSED SCHEDULE FOR COMPLETING DISCOVERY 4 Case3:06-cv-00219-RS Document531 Filed11/03/11 Page5 of 6 1 In light of this stipulated discovery schedule which has been carefully considered 2 by the parties and is entered into in a good faith attempt to meet the Court’s expectations 3 that “the parties [] comply with their discovery obligations . . . and [] resolve any further 4 disputes amicably without bringing them to the Court” (Order Re Discovery and 5 6 Defendants’ Motion to Strike, at 6 (ECF No.513)), 7 IT IS HEREBY STIPULATED THAT: 8 1. The foregoing discovery will be completed by August 15, 2012; and 9 2. The parties will file a joint statement identifying any material issues of fact that 10 will require an evidentiary hearing by September 15, 2012. 11 12 DATED: November 2, 2011 By: 13 Richard P. Steinken JENNER & BLOCK 14 15 John R. Grele LAW OFFICE OF JOHN R. GRELE Attorneys for Plaintiffs ALBERT G. BROWN and MICHAEL A. MORALES 16 17 18 19 /s/ David A. Senior McBREEN &SENIOR DATED: November 2, 2011 20 21 22 By: /s/* Michael Laurence Sara Cohbra HABEAS CORPUS RESOURCE CENTER Attorneys for Plaintiffs MITCHELL SIMS and STEVIE FIELDS 23 24 // // 25 26 27 28 JOINT PROPOSED SCHEDULE FOR COMPLETING DISCOVERY 5 Case3:06-cv-00219-RS Document531 Filed11/03/11 Page6 of 6 1 DATED: November 2, 2011 By: /s/ * Ajay S. Krishnan KEKER & VAN NEST LLP Attorneys for Plaintiffs PACIFIC NEWS SERVICE DATED: November 2, 2011 By: /s/ Michael J. Quinn* MICHAEL J. QUINN Deputy Attorney General Attorneys for Defendants BROWN, CATE, AND MARTEL 2 3 4 5 6 7 8 9 10 11 12 PURSUANT TO STIPULATION, IT IS SO ORDERED. 3 DATED: November ___, 2011 ________________________________ Honorable Richard Seeborg UNITED STATES DISTRICT JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 JOINT PROPOSED SCHEDULE FOR COMPLETING DISCOVERY 6

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