Ernest DeWayne Jones v. Robert K. Wong

Filing 107

RESPONSE filed by Respondent Kevin Chappellto Order, 103 Opening Brief on Claim 27 that Lengthy Confinement of Petitioner Under Sentence of Death Violates Eighth Amendment (Tetef, Herbert)

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KAMALA D. HARRIS
Attorney General of California
LANCE E. WINTERS
Senior Assistant Attorney General
KEITH H. BORJON
Supervising Deputy Attorney General
A. SCOTT HAYWARD
Deputy Attorney General
HERBERT S. TETEF
Deputy Attorney General
State Bar No. 185303
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
Telephone: [phone]
Fax: [phone]
E-mail: [e-mail]
Attorneys for Respondent

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IN THE UNITED STATES DISTRICT COURT

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FOR THE CENTRAL DISTRICT OF CALIFORNIA

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ERNEST DEWAYNE JONES,

CAPITAL CASE

Petitioner, Case No. CV 09-2158-CJC
v.

OPENING BRIEF ON CLAIM 27
THAT LENGTHY
CONFINEMENT OF PETITIONER
UNDER SENTENCE OF DEATH
VIOLATES EIGHTH
AMENDMENT

KEVIN CHAPPELL, Warden of
California State Prison at San
Quentin,

Respondent. Hon. Cormac J. Carney
U.S. District Judge

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Pursuant to this Court’s Order of April 10, 2014, Respondent Kevin Chappell,

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the Warden of the California State Prison at San Quentin, hereby files the instant

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Opening Brief concerning recently amended Claim 27 of the Petition alleging that

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Petitioner’s lengthy confinement while under a sentence of death constitutes cruel

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and unusual punishment in violation of the Eighth Amendment. As discussed

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below, habeas corpus relief is unavailable on this claim.

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Dated: June 6, 2014

Respectfully submitted,

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KAMALA D. HARRIS
Attorney General of California
LANCE E. WINTERS
Senior Assistant Attorney General
KEITH H. BORJON
Supervising Deputy Attorney General
A. SCOTT HAYWARD
Deputy Attorney General

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/s/ Herbert S. Tetef

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HERBERT S. TETEF
Deputy Attorney General
Attorneys for Respondent

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MEMORANDUM OF POINTS AND AUTHORITIES

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INTRODUCTION

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In 1995, a Los Angeles County Superior Court jury convicted Petitioner of

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capital murder and sentenced him to death. On March 17, 2003, the California

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Supreme Court affirmed the judgment of conviction and death sentence on direct

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appeal. People v. Jones, 29 Cal. 4th 1229, 131 Cal. Rptr. 2d 468 (2003). On

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October 14, 2003, the United States Supreme Court denied a petition for writ of

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certiorari. Jones v. California, 540 U.S. 952, 124 S. Ct. 395, 157 L. Ed. 2d 286

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(2003).

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On October 21, 2002, Petitioner filed a petition for writ of habeas corpus in

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the California Supreme Court. The petition contained twenty-seven claims for

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relief, was 429 pages long, and had over 3,000 pages of exhibits. On October 16,

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2007, Petitioner filed another petition for writ of habeas corpus in the California

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Supreme Court. On March 11, 2009, the California Supreme Court denied both

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petitions.

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On March 10, 2010, Petitioner filed the Petition for Writ of Habeas Corpus in

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the instant proceedings. On April 6, 2010, Respondent filed an Answer. On

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February 17, 2011, Petitioner filed a Motion for Evidentiary Hearing. The Supreme

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Court thereafter issued its decision in Cullen v. Pinholster, 131 S. Ct. 1388, 179 L.

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Ed. 2d 557 (2011). On April 6, 2011, this Court ordered the parties to submit briefs

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on the effect of Pinholster on Petitioner’s entitlement to an evidentiary hearing.

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After the Pinholster briefing was filed, the Court denied Petitioner’s Motion for

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Evidentiary Hearing without prejudice and ordered the parties to submit briefs

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addressing the application of 28 U.S.C. § 2254(d) to Petitioner’s claims. On

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December 10, 2012, Petitioner filed his opening § 2254(d) brief. On June 14, 2013,

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Respondent filed an Opposition. On January 27, 2014, Petitioner filed a Reply.

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On April 10, 2014, this Court issued an Order requiring the parties to address
Claim 27 of the Petition alleging that Petitioner’s death sentence constitutes cruel
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and unusual punishment in violation of the Eighth Amendment. The Order

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indicates the Court’s belief that the claim may have merit in light of the long delay

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in the execution of death sentences in California, caused by the protracted post-

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conviction litigation of constitutional claims in state and federal court and the

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current stay of executions while the courts resolve the constitutionality of

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California’s lethal injection protocol.
On April 14, 2014, this Court issued an Order directing Petitioner to file an

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amendment to the Petition alleging a claim that the long delay in execution of

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sentence in the case, coupled with the grave uncertainty of not knowing whether

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Petitioner’s execution will ever be carried out, renders his death sentence

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unconstitutional. On April 28, 2014, Petitioner filed a First Amended Petition,

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which supplements Claim 27 with these brand new allegations, never before raised

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in any court.

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ARGUMENT
I.

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THE CLAIM THAT PETITIONER’S DEATH SENTENCE VIOLATES THE
EIGHTH AMENDMENT BECAUSE OF DELAY BASED ON THE LACK OF
AN EXECUTION PROTOCOL IS UNEXHAUSTED

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In Claim 27 of the First Amended Petition (“FAP”), Petitioner now contends

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that the long delay in execution of sentence in this case, coupled with the grave

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uncertainty of not knowing whether Petitioner’s execution will ever be carried out,

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renders his death sentence unconstitutional. (FAP at 414-27.) A portion of recently

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amended Claim 27 now alleges an Eighth Amendment violation based on delay

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caused by the current lack of an execution protocol in California. (FAP at 421-22.)

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To the extent these new allegations place the claim in a fundamentally different

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light, the claim is unexhausted. 1

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Petitioner’s original version of Claim 27 alleged unconstitutionality solely
on the basis of delay in execution caused by a slow litigation process. As argued in
prior briefing, and as discussed below, relief on that claim is barred under 28
U.S.C. § 2254(d) because there is no “clearly established” United States Supreme
(continued…)
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Exhaustion of state remedies is a prerequisite to a federal court’s consideration

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of claims sought to be presented by a state prisoner in federal habeas corpus. 28

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U.S.C. § 2254(b); Picard v. Connor, 404 U.S. 270, 275, 92 S. Ct. 509, 30 L. Ed. 2d

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438 (1971); Wooten v. Kirkland, 540 F.3d 1019, 1025 (9th Cir. 2008). To satisfy

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the state exhaustion requirement, the petitioner must fairly present his federal

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claims to the state’s highest court. Rose v. Lundy, 455 U.S. 509, 515, 102 S. Ct.

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1198, 71 L. Ed. 2d 379 (1982). A claim has not been fairly presented unless the

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prisoner has described in the state court proceedings both the operative facts and the

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federal legal theory on which his contention is based. See Gray v. Netherland, 518

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U.S. 152, 162-63, 116 S. Ct. 2074, 135 L. Ed. 2d 457 (1996); Gatlin v. Madding,

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189 F.3d 882, 888 (9th Cir. 1999).

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During his direct appeal in the California Supreme Court, Petitioner presented

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a Lackey claim, arguing that his death sentence violated the Eighth Amendment

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because of the long delay between sentencing and execution. 2 (NOL B1 at 229-43.)

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However, Petitioner never argued in the California Supreme Court, either in his

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direct appeal or in any habeas corpus petition, that his death sentence violated the

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(…continued)
Court case endorsing such a right. The new allegations do not change that calculus
at all, and the claim is still meritless from a “clearly established law” standpoint.
However, if this Court determines that the claim as now presently alleged warrants
habeas corpus relief, the new allegations of an absent-lethal-injection protocol place
the claim in a fundamentally different light, thus rendering the claim unexhausted.
Dickens v. Ryan, 740 F.3d 1302, 1318 (9th Cir. 2014).
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This claim is termed a “Lackey” claim, but neither Lackey nor any other case
holds that such an Eighth Amendment claim is viable. In a memorandum opinion
respecting the denial of certiorari in Lackey v. Texas, 514 U.S. 1045, 115 S. Ct.
1421, 131 L. Ed. 2d 304 (1995), Justice Stevens questioned whether executing a
prisoner who has spent many years on death row constitutes cruel and unusual
punishment prohibited by the Eighth Amendment. The Supreme Court, however,
has never addressed the issue in any manner on the merits, let alone held that such a
constitutional right exists.
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Eighth Amendment because of delay based on the lack of an execution protocol in

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California. Therefore, to the extent these new allegations place this claim in a

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fundamentally different light, Claim 27 is unexhausted and relief may not be

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granted. Dickens v. Ryan, 740 F.3d 1302, 1318 (9th Cir. 2014). However, as

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demonstrated in Section III below, it is perfectly clear that this ground raises no

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colorable claim for habeas corpus relief, and therefore should be denied on its

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merits, even though it is unexhausted. See 28 U.S.C. § 2254(b)(2); Cassett v.

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Stewart, 406 F.3d 614, 623-24 (9th Cir. 2005).

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II.

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ANY CLAIM THAT PETITIONER’S DEATH SENTENCE VIOLATES THE
EIGHTH AMENDMENT BECAUSE OF DELAY BASED ON THE LACK OF
AN EXECUTION PROTOCOL IS NOT RIPE FOR REVIEW

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Article III of the Constitution limits the jurisdiction of federal courts to

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deciding actual “Cases” or “Controversies.” Hollingsworth v. Perry, 133 S. Ct.

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2652, 2661, 186 L. Ed. 2d 768 (2013). The “ripeness” doctrine is drawn from

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Article III’s limitations on judicial power and from prudential reasons for refusing

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to exercise jurisdiction. National Park Hospitality Ass’n v. Department of Interior,

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538 U.S. 803, 808, 123 S. Ct. 2026, 155 L. Ed. 2d 1017 (2003). The purpose of the

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ripeness doctrine “is to prevent the courts, through avoidance of premature

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adjudication, from entangling themselves in abstract disagreements.” Abbott Labs.

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v. Gardner, 387 U.S. 136, 148, 87 S. Ct. 1507, 18 L. Ed. 2d 681 (1967); Poland v.

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Stewart, 117 F.3d 1094, 1104 (9th Cir. 1997). “An issue is not ripe for review

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‘where the existence of the dispute itself hangs on future contingencies that may or

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may not occur.’” Poland v. Stewart, 117 F.3d at 1004.

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Here, to the extent Petitioner directly claims that his death sentence violates

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the Eighth Amendment because California currently lacks an execution protocol,

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that claim is not ripe for review. Any delay in the execution of Petitioner’s death

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sentence has not been attributable to the lack of an execution protocol. The

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execution of Petitioner’s death sentence has been stayed pending final disposition

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of the Petition for Writ of Habeas Corpus, and all of the claims have been briefed
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under 28 U.S.C. § 2254(d), and are awaiting final disposition by this Court, as well

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as further appellate review. At the current time, Petitioner’s constitutional claims

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are still being litigated and there has been no final disposition. In other words,

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Petitioner cannot say that but for the absence of a valid lethal injection protocol, his

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execution would be imminent. Until execution is imminent, the existence of a valid

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protocol is wholly irrelevant to this petitioner, thus making any harm attributable to

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the lacking protocol speculative and hypothetical, which are the hallmarks of an

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unripe claim. Hillblom v. United States, 896 F.2d 426, 430 (9th Cir. 1990). The

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claim is therefore properly treated in the same manner as a claim under Ford v.

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Wainwright, 477 U.S. 399, 106 S. Ct. 2595, 91 L. Ed. 2d 335 (1986). The claim

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does “not become ripe until after the denial of [petitioner’s] first habeas petition.”

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Magwood v. Patterson, 561 U.S. 320, ___, 130 S. Ct. 2788, 2805, 177 L. Ed. 2d

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592 (2010). Therefore, a claim that the lack of an execution protocol violates

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Petitioner’s Eighth Amendment rights is not justiciable.

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III. THE CLAIM THAT PETITIONER’S DEATH SENTENCE VIOLATES THE
EIGHTH AMENDMENT BECAUSE OF HIS LENGTHY CONFINEMENT
UNDER A SENTENCE OF DEATH IS BARRED BY 28 U.S.C. § 2254(D)

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Even assuming an exhausted and justiciable claim, or one based exclusively

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on delay supposedly attributable to state and federal litigation, Petitioner’s claim

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that his death sentence violates the Eighth Amendment because he has been

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confined under a sentence of death since 1995 is barred by 28 U.S.C. § 2254(d).

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The claim is barred because there is no clearly established law from the United

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States Supreme Court endorsing a claim of cruel and unusual punishment for a

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lengthy delay between conviction and execution of a capital sentence. Accordingly,

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this Court is forbidden from granting relief on these grounds.

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As amended by the Antiterrorism and Effective Death Penalty Act of 1996

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(“AEDPA”), 28 U.S.C. § 2254(d) constitutes a “threshold restriction,” Renico v.

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Lett, 559 U.S. 766, 773 n.1, 130 S. Ct. 1855, 176 L. Ed. 2d 678 (2010), on federal

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habeas corpus relief that “bars relitigation of any claim ‘adjudicated on the merits’
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in state court” subject to two narrow exceptions. Harrington v. Richter, 131 S. Ct.

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770, 784, 178 L. Ed. 2d 624 (2011). These exceptions require a petitioner to show

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that the state court’s previous adjudication of the claim either (1) was “‘contrary to,

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or involved an unreasonable application of, clearly established Federal law, as

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determined by the Supreme Court of the United States,’” or (2) was “‘based on an

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unreasonable determination of the facts in light of the evidence presented at the

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State Court proceeding.’” Id. at 783-84 (quoting 28 U.S.C. § 2254(d)). “Section

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2254(d) reflects the view that habeas corpus is a ‘guard against extreme

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malfunctions in the state criminal justice systems,’ not a substitute for ordinary

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error correction through appeal.” Id. at 786 (quoting Jackson v. Virginia, 443 U.S.

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307, 332 n.5, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)). Accordingly, to overcome

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the bar of § 2254(d), a petitioner is required to show at the threshold that “the state

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court’s ruling on the claim being presented in federal court was so lacking in

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justification that there was an error well understood and comprehended in existing

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law beyond any possibility for fairminded disagreement.” Id.; see also Johnson v.

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Williams, 133 S. Ct. 1088, 1091, 1094, 185 L. Ed. 2d 105 (2013) (standard of

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§ 2254(d) is “difficult to meet” and “sharply limits the circumstances in which a

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federal court may issue a writ of habeas corpus to a state prisoner whose claim was

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‘adjudicated on the merits in State court proceedings’”).

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Here, relitigation of Petitioner’s Eighth Amendment claim is barred by

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§ 2254(d). Because the Supreme Court has never held that execution following a

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long period of confinement under a sentence of death—for any reason

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whatsoever—constitutes cruel and unusual punishment, the California Supreme

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Court’s rejection of Petitioner’s Eighth Amendment claim was neither contrary to

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nor an unreasonable application of any “clearly established” Supreme Court

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precedent. See Wright v. Van Patten, 552 U.S. 120, 126, 128 S. Ct. 743, 169 L. Ed.

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2d 583 (2008) (“Because our cases give no clear answer to the question presented,

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let alone one in [petitioner’s] favor, ‘it cannot be said that the state court
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“unreasonabl[y] appli[ed] clearly established Federal law”’”); Allen v. Ornoski, 435

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F.3d 946, 958 (9th Cir. 2006) (denial of habeas relief proper because Supreme

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Court has never held that execution after long tenure on death row constitutes cruel

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and unusual punishment); see also Blair v. Martel, 645 F.3d 1151, 1157 (9th Cir.

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2011) (denial of habeas relief proper because Supreme Court has never held that

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delay in direct appeal violates due process). A federal court may not grant relief

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under § 2254(d) even if it believes that it would be unreasonable for a state court to

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refuse to extend a governing legal principle to a context where it should control.

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White v. Woodall, 572 U.S. ___, ___, 2014 WL 1612424 *7-*8 (2014). Section

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2254(d)(1) “does not require state courts to extend [Supreme Court] precedent or

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license federal courts to treat the failure to do so as error.” Id. at *8 (emphasis in

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original). Thus, federal habeas relief is barred.3

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In our view, the statistical data referenced in the two articles the Court cited
in its Order of April 10, 2014, shed no light on either the merits or cognizability of
a “Lackey” claim. Likewise, because none of the delay Petitioner has experienced
toward his execution is in any sense attributable to the absence of a finalized
protocol, we submit that any “public records addressing the delay associated with
the administration of California’s death penalty” are not likely illuminating, though
we include here for the Court’s consideration three pleadings that speak to the point
of the Court’s inquiry. See Attachment 1 (Special appearance by the California
Department of Corrections and Rehabilitation filed in People v. Mitchell Carlton
Sims); Attachment 2 (Declaration of Thomas S. Patterson filed in People v. Mitchell
Carlton Sims); Attachment 3 (Opposition to Petition for Writ of Mandate filed in
Bradley Winchell v. Matthew Cate, et al.).
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CONCLUSION

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For the foregoing reasons, granting habeas relief on Claim 27 of the First

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Amended Petition would be impermissible.

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Dated: June 6, 2014

Respectfully submitted,

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KAMALA D. HARRIS
Attorney General of California
LANCE E. WINTERS
Senior Assistant Attorney General
KEITH H. BORJON
Supervising Deputy Attorney General
A. SCOTT HAYWARD
Deputy Attorney General

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/s/ Herbert S. Tetef

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HERBERT S. TETEF
Deputy Attorney General
Attorneys for Respondent

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HST:fc
LA2009505879
51507492.doc

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ATTACHMENT 1

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Ace Attorney Service [phone]

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KAMALA D. HARRIS
Attorney General of California
THOMAS S. PATIERSON, State Bar No. 202890
Supervising Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
E-mail: [e-mail]
·Telephone: [phone]
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JAYM.GOLDMAN,StateBarNo.168141
Deputy Attorney General ·
E-mail: [e-mail]
Telephone: [phone]
Fax: [phone]
Attorneys Specially Appearing for the
California Department of Corrections and
Rehabilitation

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SUPERIOR COURT OF THE STATE OF CALIFORNIA
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COUNTY OF LOS ANGELES
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SPECIAL APPEARANCE BY THE
Plaintiff, CALIFORNIA DEPARTMENT OF
CORRECTIONS AND
. REHABILITATION IN RESPONSE TO
THE ORDERS TO SHOW CAUSE .

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v.

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Case Nos. A591707

PEOPLE OF THE STATE OF
CALIFORNIA,
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MITCHELL CARLTON SIMS,

Date:
July 13,2012
Time:
10:00 a.m. . ~\\[ v::;._f&,\'\ ·
Defendant. Dept:
106
·f'"'"-- '\( ,::-H\'\ ~ ';
Judge:
Judge Larry Fidlef-J '
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Action Filed: May 2, 2012

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Special Appearance Cal. Dept. Corr. Rehab. Response Orders· Show Cause (A591707)
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INTRODUCTION

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The Los Angeles District Attorney has asked this Court to order the California Department

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of Corrections and Rehabilitation to execute condemned inmates Tiequon Cox and Mitchell Sims

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by a one-drug method that is not contained in California's regulations. CDCR is not a party to

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these criminal actions, and is specially appearing here in an effort to provide helpful information

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to the Court. Because CDCR is not a party, the Court has no jurisdiction over it to order the relief .

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the District Attorney seeks. Moreover, the Marin County Superior Court has permanently

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enjoined CDCR from carrying out the execution of any condemned inmate by lethal injection

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unless and until new regulations governing lethal-injection executions are promulgated in

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compliance with the Administrative Procedure Act. (Decl. Patterson, ex. 1) If the Court were to

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order CDCR to carry out the requested executions, the Court's order would necessarily conflict

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with the permanent injunction. Any such order would place CDCR in an untenable position

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because it would not be able to simultaneously comply with one order directing it to carry out

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executions and another order barring it from doing so.

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ARGUMENT

I.

CDCR Is NOT A PARTY TO THESE CRIMINAL PROCEEDINGS, AND THE COURT
LACKS JURISDICTION TO ORDER CDCR TO CARRY OUT THE REQUESTED
EXECUTIONS.

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The Court lacks jurisdiction over CDCR to order it to carry out the executions of Sims and

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Cox using a one-drug method because CDCR is not a party to these criminal proceedings. The

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proceedings here are between the People and the two condemned inmates. No statute or coUrt

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rille permits this Court to exercise authority over CDCR in a criminal case to inquire about certain

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lethal-injection methods, and to potentially dictate a particular method. Although Penal Code

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section 1193 allows a superior court to serve a death warrant on the Warden of San Quentin, this

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statute does not subject CDCR to this

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requests. (See Pen. Code,§§ 1193 and 3604; Cal. Rules of Court, rule 4.315.) ·

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authority in the manner that the District Attorney

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Further, the District Attorney's motion mistakenly contends that this Court can be the first
to dictate an execution method, by relying on a miscellaneous provision from the Code of Civil
4SpecialAppearance Cal. Dept. Corr. Rehab. Response Orders Show Cause (A591707)

Ace Attorney Service (213) 623-7 527

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Procedure, section 187. That provision grants a trial court the means necessary to carry out its

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jurisdiction-primarily regarding procedural matters-only if the court has jurisdiction over

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whomever it would exercise power (Tokio Marine & Fire Ins. Corp. v. Western Pacific Roofing

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Corp. (1999) 75 Cal.App.4th 110, 116~ 117) and if no st~tute has previously allocated whatever

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power the court would exercise (Phillips, Spallas & Angstadt LLP v. Fotouhi (2011) 197

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Cal.App.4th 1132, 1142). Here, because there is no jurisdiction over CD<;:R in this criminal

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proceeding, and because the Legislature already granted to CDCR the authority to establish

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lethal-injection standards (Pen. Code, § 3604, subd. (a)), the Court cannot grant the District

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Attorney's motion.

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. II.

CDCR Is PERMANENTLY ENJOINED FROM CARRYING OUT THE EXECUTION OF
ANY CONDEMNED INMATE BY LETHAL INJECTION.

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In February, the Marin County Superior Court perr;nanently enjoined CDCR from carrying

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out the execution of any condemned inmate by lethal injection unless and until new lethal-

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injection regulations are promulgated in compliance with the Administrative Procedure Act.

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(Decl. Patterson, ex. 1.) This injunction bars CDCR from executing any condemned irunate by

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lethal injection, regardless of whether a one-drug or three-drug method is used, until new

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regulations have been promulgated under the AP A. If this Court were to issue an order directing

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CDCR to carry out the executions of inmates Sims and Cox, the order would conflict with the

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injunction. And it would put CDCR in the impossible position ofhaving to somehow comply

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with contradictory orders from two different superior courts. In addition, a federal district court

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has granted Sims a stay against "all proceedings related to the execution of [the condemned

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irunate's] sentence of death, including but not limited to preparations for an execution and the

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setting of an execution date ...." (Decl. Patterson, ex. 3 .) The relief requested by the District

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Attorney regarding Sims would also conflict with this federal stay.

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III.

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CDCR Is CURRENTLY WORKING TO DEVELOP A ONE-DRUG PROTOCOL IN
COMPLIANCE WITH ITS LEGAL OBLIGATIONS.

CDCR is committed to faithfully carrying out its obligations under the law. And to this end,
. CDCR is defending the State's current lethal-injection regulations against legal attack (Cal. Code
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Regs., tit. 15 §§ 3349, et seq.}, while it is simultaneously considering alternatives to the current

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lethal-injection method. Specifically, CDCR is appealing both the Marin County Superior

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Court's invalidation ofthe state's three-drug protocol and th~t court'·s injunction against CDCR

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performing any lethal-injection executions until CDCR promulgates new regulations under the

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Administrative Procedures Act. (Decl. Patterson, exs. 1,2.) In addition, under the Governor's

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direction,.CDCR has begun the process of considering alternative regulatory protocols, including

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a one-drug protocol, for carrying out the death penalty. (Jd., at ex. 2.)

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CONCLUSION

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As a threshold issue, there is no jurisdiction over nonparty CDCR in these criminal cases.

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Moreover, CDCR has been enjoined from carrying out any executions by lethal injection until .

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new regulations have been promulgated. Accordingly, even if this Court had jurisdiction to order

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CDCR to carry out the requested executions, any such order would necessarily conflict with the

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permanent injunction barring CDCR from carrying out executions by lethal injection.

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Respectfully Submitted,

Dated: June 28, 2012

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KAMALA D. HARRis
Attorney General of Califoinia

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·THOMAS S. PATIERSON

Supervising Deputy Attorney General
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JAYM. GOlDMAN

Deputy Attorney General
Attorneys Specially Appearing for the
California Department of Corrections and·
Rehabilitation

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SF2010201806
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DECLARATION OF SERVICE BY U.S. MAIL
Case N arne:
No.:

People of the State of California v. Mitchell Carlton Sims and Tiequon
Aundray Cox
A591707 A758447

I declare:
I am employed in the Office. of the Attorney General, which is the office of a member of the
California State Bar, at which member's direction this service is made. I am 18 years of age or
older and not a party to this matter. I am familiar with the business practice at the Office of the
Attorney General for collection and processing of correspondence for mailing with the United
States Postal Service. In accordance with that practice, correspondence placed in the internal
mail collection system at the Office of the Attorney General is deposited with the United States
Postal Service with postage thereon fully prepaid that same day in the ordinary course of
business.
On June 28,-2012, I served the attached SPECIAL APPEARANCE BY THE CALIFORNIA
DEPARTMENT OF CORRECTIONS AND REHABILITATION IN RESPONSE TO
THE ORDERS TO SHOW CAUSE; DECLARATION OF THOMAS S. PATTERSON
SUPPORTING THE SPECIAL APPEARANCE BY THE CALIFORNIA DEPARTMENT
OF CORRECTIONS AND REHABILITATION IN RESPONSE TO THE ORDERS TO
SHOW CAUSE; EXHIBITS 1 TO 3 by placing a true copy thereof enclosed in a sealed
envelope in the l.nternal mail collection system at the Office of the Attorney General at 455
Golden Gate Avenue, Suite 11000, San Francisco, CA 94102-7004, addressed as follows:
Steve Cooley, District Attorney
Patrick Dixon, Assistant Attorney
Gary Hearnsberger, Head Deputy
Michele Hanisee, Deputy Attorney
Major Crimes Div.
210 W. Temple St., Ste 1700
Los Angeles, CA 90012
Mitchell C. Sims, D-68902
San Quentin State Prison ·
San Quentin, CA 94974
Kenneth G. Hausm~iffi
Sara Eisenberg
Elizabeth wang
Jaime M. Ruling Delaye
Arnold and Porter
3 Embarcadero
San Francisco, CA94111
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Michael Laurence
Sara Cohbra
Habeas Corpus Resource Center
303 2nd st., 4th Floor south tower
San Francisco, CA941 07
Governor Edmund G. Brown
State Capitol
Sacramento, CA 95814
Matthew Cate, Secretary
Kelly Lynn McLease
CDCR
1515 S Street
Sacramento, CA 94964

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I declare under penalty of perjury under the laws of the State of California the foregoing is true
and correct and that this declaration was executed on J
, 2012, at San Francisco,
Califorriia.
D. Criswell
Declarant
SF2012204783
20622~47.doc

ATTACHMENT 2

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KAMALA D. HARRIS
Attorney General of California
THOMAS S. PATTERSON, State Bar No. 202890
Supervising Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
E-mail: [e-mail]
Telephone: [phone]
JAYM.GOLDMAN,StateBarNo.168141
Deputy Attorney General
E-mail: [e-mail]
Telephone: [phone]
Fax: [phone]
Attorneys Specially Appearing for the
California Department of Corrections and
Rehabilitation

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SUPERIOR COURT OF THE STATE OF CALIFORNIA
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COUNTY OF LOS ANGELES

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PEOPLE OF THE STATE OF
CALIFORNIA,

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v.
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· MITCHELL CARLTON SIMS,

Case Nos. A591707

DECLARATION OF THOMAS S.
Plaintiff,· PATTERSON SUPPORTING THE
SPECIAL APPEARANCE BY THE
CALIFORNIA DEPARTMENT OF
CORRECTIONS AND
REHABILITATION IN RESPONSE TO
THE ORDERS TO SHOW CAUSE
Defendant. Date:
July 13, 2012
Time:
10:00 a.m.
Dept:
106
Judge:
Judge Larry Fidler
Action Filed: May 2, 2012

BY

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Decl. T. Pattrson Supporting Special Appearance Cal. Dept. Corr. Rehab. (A591707}

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I, Th.omas ·s. Patterson, declare:
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I am a Supervising Deputy Attorney General in the California Attorney General's

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Office, and am assigned to represent and specially appear for the California Depa,rtment of

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Corrections and Rehabilitation in this matter. I am competent to testify to the matters set forth in

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this declaration, and if called to do so, I would and could so testify. I submit this declaration in

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support of CDCR' s response to the two orders to show cause issued in the above-captioned cases,

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which order CDCR to appear before this Court and show cause why an execution using a single-

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drug J,Uethod sought by the Los Angeles District Attorney cannot be performed on two

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condemned inmates, Defendants Cox and Sims.

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The Marin County Superior Court, in the case of Sims v. CDCR, Case No

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CIV1004019, issued a permanent injunction on February 21,2012, which prohibits the CDCR

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from "carrying out the execution of any condemned irimate py lethal injection unless and until

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new regulations governing lethal injections are promulgated in compliance with the

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Administrative Procedure Act." A copy of this judgment and injunction is attached as

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3.

e~bit

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CDCR is already considering the relief that the Los Angeles District Attorney seeks,

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namely, the development of a single-drug protocol, although CDCR's protocol would apply to all

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condemned inmates, not just Sims and Cox. The notice of appeal in the Sims action, which was

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filed on April26, 2012, states that the Governor has directed CDCR to "begin the process of

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considering alternative regulatory protocols, including a one:..drug protocol, for carrying out the

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de~th penalty."· A

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copy of the notice of appeal filed in the Sims action is attached as exhibit 2.

The. United States District Court for theN orthern District of California in Morales v.

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Gate, Case Nos. 5-6-cv-219 and 5-6.,-cv-926, issued an order granting Defendant Sims's motion to

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i)1.tervene and for a stay of execution on January 19, 2011. A true and correct copy of this order is

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attached as exhibit 3. The order granted Sims a stay to the same extent as the court had

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previously granted some of the other plaintiffs in thafmatter against "all proceedings related to

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the execution of [the condemned inmate's] sentence of death, including but not limited to

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preparations for an execution and the setting of an execution date .... "

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Decl. T. Pattrson Supporting Special Appearance Cal. Dept. Corr. Rehab. (A591707)

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I d·eclare under penalty of peljury that the foregoing is true and correct. Executed at San
Francisco, California, on June 28, 2012.

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Thomas S. Patterson
SupervisingDeputy Attorney General
SF2010201806
20622311.doc

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Dec!. T. Pattrson Supporting Special Appearance Cal. Dept. Carr. Rehab. (A591707)

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EXHIBIT 1

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ARNOLD & PORTER LLP
KENNETH G. !-IAUSMAN (No. 57252)

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kenneth.hausmati@apoiter;com
SARA l EISENBERG (No. 269303)
:sara.eiseliberg@aporter:com
·
ELIZABETH WANG (No. 261l45)
elizabeth;wang@aportcr:com
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JAIME M. HULlNG DELAY£ (No. 270784)
j ~lirrie_.hulingdel_aye@aporter. com
Three Embarcadero Center, 7th Floor
·san Francisco,_ Cal!for~ia 9411 i -4024
Telephone: [phone]J600
Facsimile:
+1 415.677.6262

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""

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CPon - ---~~
-~@:LQJ
FEB- 2 t· 2012
-c Kll'y~

Tl;f(NER

- M.ARI- Courr l•.sr.:cum·r: OC!1ccr·
-N ~o_u£rNT7:Y SL'PI::RlQRCOURT
·
Y-- ~- urner, Deputj"

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Attorneys forPlaintiff

MitCHELL SIMS

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SUPERIOR COURT OF THE S'tAl'E;qi" CAiiFORNIA

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COUNTY OF MA1UN

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UNLIMITED JURISDJ.CTION

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MITCHELL SIMS,

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.[ER.OfQSEI~TJ:;INA:L JVDQMENT_AS'TQ

v.'

CALIFORNIA DEPARTMENT OF
G01UlliCtiONS AND REHABILITATJ.Cxt~, et

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Defendants.

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AI;BERT GREENWOOD BROWN, JR. and
I(BVIN·tO(?PER,
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Plaintiffs-in~ Intervention.

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No. CIVl.0040J 9
· Action-Filed: f:\ttgu~t 2, 2010 ·

Plaintiff~ _

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___________ ___
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PLAINTIFF
Dep't:'
Judge:

ME·~~-.CHELL SJMS

Hon. Faye D'Opal · _

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Plaintiif..<;' moti·on for summary judgment came on for hearing by this Court on Decerriber 16,
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2011., at 8:30a.m. Sara Eisenberg and Jaime Huling Delaye appeared on behalf of Plaintiff Mitchell

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Sims. Sara Cohbra spec.ici.Jly appeared on behalfofPlaintiff-in-interven~ion Albert Greenwood

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· Brown. Cameron Desmond appeared on behalf of Plaintiff~ in-intervention-Kevin Cooper, Deputy

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Attorneys General Jay M. Goldman, Michael Qui1m and Marisa Kirchenhailer appeared on beha:if of

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Defenciants. California Department ofCorrections· and Rehabilitation and Matthew Cate.

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After c;onsidering tbG moving, opposing and reply papers, the :file in. this matter, and the.

arguments presented at the December- 16, 2011 beari11g, and good cause; ·appearing therefo:f; the
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Court GRANTED s'i.unrnary adj'udicatio11 on Plaintiffs' second cause ofaction for declaratory t:'~lief

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to invalidate Defendant CalifoniiaPcp·arlment of Corrections and Rehabilitation's tethal i11jection

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protocol (Cal. Code Regs., tit.l5, §.§3349-3349.4.6, ".A.dminis1r1;1tion of the Oeath. Penalti').~ aiid

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DENIED summary adjudication on Plaintiffs' first c.ause of action. SulJ.sequcntly, P.laintiffMitrtheli

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Sims filed a -request for dismissaJ of his first cause of action? and tl1e dismissal of Sims' fir~l cause

of action was entered by the Court-on January 26,2012.

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lT IS HE~U5BY ORJ)ERED~ADJUDGED. AND DECREED that final judgment l.s entered

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in favo.r of Plaintiff. Mitchell Sims and. agains~ Defe~dapis Calif9rnia Department of Corr~ctions·a:nd

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Rebabl.litation and M:atthew Cate.~ follo:ws.:

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Defendants substantially' failed·to comp~)' with the req1,1iren1ents··of Ccilifon1ia'??

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Administrative ProcedureAct ("i-\P N') when the lethal injection pi"otocol (Cal. Code lZegs.,. tit, 15,.

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§§ 3349-3349.4.6, "Administration of the Death Pen.ahy') was enacted, in ,iiolatioh of Ggvernm~nt

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Code Section 11350(a)~ as is niore fully setiorthin the Court's Dec¢inber.l9,20ll Fimii .Rtil1hg·~
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attached:hereto a:s Exhl1)itA and";incorporatcd ·in~o. thisjudgmcnt as ·ifset forth,irrJuU.

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DECLAR.~TORY

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2 · The lethal iJ\i~qiiori.p~otoc.ol.(.Cal. Code Regs., tit 15, §§·3'349~3349.4.6,

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'~Administra~ion

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RE!.-TEF

of the Deat~ Penalty") js invalid fqr sub!'ltci.titjal'faiiu.re:to co1nply with the

requirements of the· APA.

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li"\JJUN CTJON
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Defe11dari.~ Ca!jforrii.q: Deparlincht of'Correctl.ol1S
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arid :Reha:bii1tation 1s perm.anerit1y:

-1:[PROPOS.EDl FINAL JU:DGMENT

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enjoined from carrying out the execu:tion ofanycondemned inmate b),lethaJ iT).jection unless·and

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until new reguiations governing lethal ·injection execvtions are pmmu;Fgated in col:l;lpliance with

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Administrative Procedure Act,

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the·

Defendant Califomia Departinent of Gorrections and Rehabilitation ispennanently

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enjoined from carrying out the execution of any .condemned .iru11ate by . lethal gas unless an~ ·until
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regulations governing execution by icthalgas· are drafted and ~pproved following successful

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completion ofthe APA review and public cbtmnent process, as seti:cll:th. af page 1:4, lii1e 26 thrc)ugh

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page 15.; .line.3 ofthe Courfs F.in~]Ruliilg,,attached hereto as.ExhibitA.

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Defendant Califomia.Departi:rient of Corrections .and Rehabilitatiott 'is permanently

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eD;joined-from canying out the exe.cution of any female inmate unles1) and tiritil regulations.

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governing the execl.ltion of female i.i:lillates are ·drafted and approv~q following successful

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corn:pletion of the APA r~vkw and·public c9mrnent proeess,:.a,s set forth .atpa¥e 14~.line 2p tb.toy-gh

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page l5,.1ine 3 oftqe Co_t\ti's Final ;R,ul)ng; an~ched h.ereto as Exhibit.A.

2. -'1.- (.
DATED: ---'----'------'• 2012~
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E HIBIT

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Ace Attomey Secv;ce [phone]

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T?nJ· .n l--;:::J ~
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DEC 1~ 2Di·J , _

IGN11LJ~ER

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. Cot1rt Executive Officer
i\iARIN COUNTY SU'!>ERIOR COURT
By: J. Chorifa. f/?f!l:·r.~

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a
SUPERIOR COURT OF

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THE StATs OF CALIFORNIA

COUNTY QF.MARIN

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IVIITCHELL SIMS,
Pl~lintlff~;

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C!Vt004019
FINAL RULING RE P.l.AINT!FF',S

MOTI.Ol\J·FOR:SUMMARY JUDGMEI'IT
vs.
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CAUFORNIA DEPARTJV1ENT OF
CORRECTIONS AND REHABlUTATlON,
eta!.,

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Defendants.
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ALBERTGREENWOOp B.ROWNi.JR~ anq
KEVIN COOPER,
Plainti-ffs~in_.lritervention.

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After:lssuan:ce o·f th~ court's tentative ruling regarding Pl-aintiffs' motion for sun:maw
judgment,-.argum·ent ·requested by defen·dants •Nasheard: on December 16,2011. Attorneys

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attorney. Sara Cohbr<l ord~ehal(of-lntervenor-Athert Btow·r-~~ a.nd~~torney Cam~·ron pesmon'd.on
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Kirchenbauer appeared on behalf of Defendant California Department of Corrections and

Rehabilitation, et al.
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Following respective arguments by attorney Goldman and attorney
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a

tentative ruling, the core .of which es-j;ablishes th:atPlairitiffs mettheir.burden to prov·e tha(!he
identified de-Fects wlthiii the entire regulatory scheme, collectively, if not singly, constitute a

substantial failure by the Department to comply with the procedures mandated by the

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Administrative Procedures Act, resultin-g In invalidation of the Jethallnjecflon administration
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.C'Ind protocol. The court adopts ·Jts tentative ruling, as briefly mqdifie.d, as the Final Ruling.

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Plaintiffs' motion for surrnnary judgment (Coqe .Civ. P~oc. § 437c(.p)[:).)}, on the)r

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1411 Declaratorv Relief action t.o liwalidate be·fendant c:ili"fornia Department of Corn:ctions and
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Rehabilitation's three-drug· letha! rnjectio·n protocol (Cal. Cod:e·Regs., tit. 15,: §§·~34;J-3349.4.6,_

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"Administration ofthe De;Jth.Pi:malty'' (hereafter Regs.;·§· ___'),; Is-granted as foilows:

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. A. For the reasons disct,i.sseclbelow, the courtfindsthe·undispute·d evideilce·suppor.ts

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Plaintiffs' second. cause pfactlpn alleging befen.dant substantially failedto.complywith
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the;·

mandatory procedural requirements of the-Administration P.roc;edures Act (APA)when·it
adopted these regulations, in vlci!ation Qf Govt; Code§. il350(a).

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The- initial Statement ofReasons·(ISOR) ~nd the Final Statement of Re·a·sons:(F$0R} each

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substantiallyfailedto comply with the APArequiremer,tsbynot cof1sideri!1g·and describing
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alternative methods to the three-drug protocol; by failing :to provide a suffic[.entrat1onale for
rejectin_g these alteYnativ·e_Si and by failing

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explairh with~u·ppor_tlng documenta.:ti?:n, wh·y fl

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one-drug alternative would not be as effective or be-~ter than the adopted three-drug

procedure 1 in violation of§ 11346.2(b)(3)(A) and§ 11346~9(a)[4). "If ari agf:mcy adopts a
regulation without complying with the APA requirements it is deemed an 'underground

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r!;!gula_tion' (Cal. Code Regs., tit.l, § 250) and is invalid. [Citation.]." (Naturist Action Committee
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v. Califor,nia State.Dept of Parks & Recreation (2009} 175 Cal.App.4th

1244~ 1250.)

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In the ISOR; which staternentwas repeated verbatim in the FSOR; the Oepartment described

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the purpose and tationale of the three"dn.ig·procedure <md its decision t~ reject alternatives to

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the three-chemicalprotocol.it was proposing, in its effort to co'mply with Go~t. Code§
.11346.2(b)(1):

In light of the Memorahdi,.!m of lntended.D·eclsion, and as dire.cted by the

·Governor, the CDCR reviewed· all aspect5 of the lethal injection prot:ess·and its
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implementation. As an integral part ofthe review, the CDCR considered

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alternatives· to the existing three-chemica(process. including a one-chemical
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process. Additionally. 'in:developing this prooosed r.egulation. the CDCR was
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guided bv the United States Supreme Court's decision

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in Baze v. Re.es (2008) 553

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U.S. 35·, l!Jhith hel\lthat the State.of Kentucky's lethal injection p.rotess, and the
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a dminl,stration .·of the three-chemicals, did not constitute crueJ and unusual .
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punishment"i.!nderthe'Eighth,L\mendment. CDC:R also re\rll~wecl.all av.aHcible

lethal injection process~ from. other states and the Federal ·sureau_ of Priso~·s,
and reviewed the transcripts and exhibits in the Morafe; v. Tfftofl case. Baseion

the information considered, the CDCR revised the lethaiihjectionprocessas-set
forth in this proposed regulatio11. (Ex. 6, p. 2; Ex. 7, p. 2 emphasis addeQ.) ·

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Th~ rat,ionide-foradoption ofthe three.-drug procedure, as underli11ed, isfa lse.

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Defendant concedesthatth~ dedsiop tbaddptthe three"drugprototol was de·cided in,May ·

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2007, b·efore the de~dsion ln the

u.s. Supr~me Court case ofBaze v. Rees (2Q08} ss3.u.s. :35,.
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chall~-~ge,

upholding; Kentucky's similar three-drug lethal injection protocol fro:ni an Eig-hth· Am.
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(Undisputed Fact No.

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its opposition, the Department admitS:

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The ISOR and FSORinaccuratelystated thafCDCR's decision to adopt the tht'ee~

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drug lethal-injection method found in the regulations.and to reject.the Ol!e--clrug

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alternative preferred by Plaintiffs, was primarily based on the United States
Supreme Court's detision in Baze v. Rees (2.008) 553 US 35. (Oppo. p. 2:o;·n: 6 'U

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4.}

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The CDCR als.o conce_des:,

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The decision to use the-t.hree-.9rug procedure vvas·rn·ad~ in M;:~y 2007

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Governor Schwarzer:egg;~r,

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Supreme Court uph~ld the constitutionality bra three-drug method, and-refused

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(Wndisputed fac:t No.9) Thereafter, in 1008, the.

to determine the con_stitutionality of a .one-drug method, ln Baze v.

Rees.

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.Subsequently, the decision to use the three-drug procedure was not' revisited by

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Governor Schwarieneggetin..the course of draft"ing·the lethal injection

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regu!ations. (Unt:lisputedFaqt; No . .101 Ex;~$ p.-4}
A.ddltlonally, the

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Undi~puted Eviden"te showsthe_ISOR.did nqt provid~ anY description o.fthe. ··

"bne--chemical process~'. (Undisputed Fact No.2) The lSOR did not identify or describe.an·y
alternatives to the 11one-chemical·process." {Uqdisputed Fact No.3}; nOr did Defendant provide·
any reasons for. rejecting any alternative to thethr.ee-ch~mical process· that were purport~cl]y
con·sr&?.red. {Undisputed-Fact i\io. 4) ·
The FSOR

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states, rn coticlusi:iry lang_"uage, tf]e:Saf\le" reaso'ti for ·selectin:g_thethree-drug

pr 0 ced~re as described in the· lSOR,~a0te-. ltis.also

undisputed the

FS~_Rstates,without
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elabor.atiCin: "T~e ..Department has ~etermin:edthat no alternative corisidered Wouli;l be more
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. effective in can:ving·outthe purpose qfthls action or WOJ;Jld_be as effective and less

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burdensome to affected persons.'' (Undisputed Fact Nc( 5, Ex.

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Also, nowhere in the FSORis there any de.s(:"rlption ofthe aiternative{s} the CDCR considered;:or

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any discussioh "with supporting information" explainihgwhy the -one-drug method would .not

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be: 1- more· effective in carrying outthe purpose ofthe rej5iJiation than the thre:e-drug
procedure; or 2- vJOU!d be . as eHectiye and lesshur.densometo the condemned inmate, al[ in
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violation of

s11346.9(a) (4).

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The failure to discuss the one-drug method is a p'articularly·signif;icant o. mission; since use of a

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barbiturate-only protocol was r.aised

by at least one commeirter {Ex.13; p. 48, no.13); several

commenters·i1i;3kethe identical ass~rtion that use.oLpancuronium bromide is unnecessary,
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dangerous, f:lnd .creates a risk of. excruciating pai"m .(Ex•. B, p. 4~,AlO~. ~2; p, 50~-no ..1$, 19;.p. 51,
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no. 20); the:cp_CR state.d in'J~s r_esponses to t!:te:.tour(s !ilq)Jirv in the federal action Mordies v.

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Cote, eta/., a single-drugfqrmula·_consisting of-five grains ofsodium.thlopental is sufficient to
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bring aboutthe death of a condemned lnmate, (Undtsputeq-FactNo.12.); and CD.CR's o_ wn
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.

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expert John McAuliffe te:stified that after condi.Jctin_g swbstantiaJ researqh fQ'r-h1s re-view of OP

20

21
22
23
2'1

No.13.)

The Depar'trnexit'satfempt'tO fix any omissfoh·thrO'iXghits briefstatem'erit1rfthe Addendurt<:to

the FSOR, that it. s.elei::ted the three-dru:g method .iri,felicirice on the:dedsion in Baz·e
.
. .
· . . . ·. .
•'•

~5

(-2008) 553li . ~5, i_s unavalling., As ccmc;ed~9 by the Depaftir)en·1;
.S.

v. ReeS":"

!3az:e v: f?ees was n6ttbe

26

2.7

reason it chose the three diemicai·metho41 ,nor was ii:theoreason for rejeeting.the. one qrug
... ......
'
.
..

2B

metho.d, slhte

G"overnor•Schwarzehegg~r those the·thre~:di.etnic:?l· r.n~i,:hod ·if} 200'7-.before·· tb~ ·
......

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I
Supreme Court decision was issued and there was never any discussion. of aJ! a!ternative
1

2

method bythe Governor at that time.

'3

Also, the Addendum fails to descril:Je any alternotive, aJ:Jd does notd<;scribe Defendant's
4

5

re.asons for rejecting an alternative ·"with supporting information that.no.alternatiVe considered
.
.

6

by the agency would be m·or.e effective in :carrying outthe

purpose for which the. regulation .Is

proposed or would be as effective.and less burdensome to affected .private persons than the
8
9

adopted reg\;Jiation.'' (GO.\/t. Code §1134~.9(a) (4).)

tn:poitantly, inclusion ofthis information only in the AddeQdUI')1 to the FSOR, even ifadeque:te,
11

12
13

does·not prom<;Jte ''meaningful publk participation"(Pu/a,s:kiv. OccupqtiQn(JISafety.& f1eafth
Sttfs. Boi:Jrd. {1999) 75 CaLApp.4th 1315, 13·27-1328), a~:the p'ubilc had no.opportunity:to

comment before the corrections 'vvere submitted to OAl.
15
·1 6
1.7

· Th~se

defe.cts infect the entire regulatory scheme, and the Iet'~al )njeCtlon administration and

protocol, as a whole, is decl~redJo.l;le invalid.

lH

:: I::~e
·21

ISOR fails to de.otibe the p ocpose and/ orthe <>tiooal;,forthe agency's ileterm.in ation 'l'hY ·I: .
.
.
,

c·ertain regulations to be implemented five days prior to the.executiori,. were reason-ably_
neces·sary .. (Govt. Code§ 1.1346.2; Regs., tit. 1, § 10 [b).) The:ISOR does n0t eJ:Cplain why'it is

23

24

necessary for unlt..staff.to monitor the i,nmate ;m<;l to compl.ete_dcic,UJ'rient<Jtion.eve(y fifteen ·

25

minutes~tarting five days befo.r~::executio.n·(Q 3349_.3,4(;o)(:L));.vJhY qll personal 'prop·ert.v must:·
. .. .
.
.
. .

'26

.be removedfromthe inmate's cell (§334S.,3.4(b){3)); onol.'h:y.i,r.~m:ate.s m.L!s.t l)e pound ~\li~_l)·vrai;;t

27
2B.

restr;;lints during vlsits. (§ 3349.. 3-A{t) {$},)·The lSOR merely-surnmarl?eS the-different
.
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procedures required five days prior to the execution, Without explaining why the specific
1
2

3

5

provisions are necessary and/or how a specific provision flllsthat need. {Undisputed Fact No~
20) (ISOR Ex. 6, p, 16)

Likewise, Regs., tit. 15, §3349A.5, which .discusses th~ chemicals to bee ·used. in the lethal

6

injection a'nd the ad.inil1istration ofth.ese-.chernicals,.Slll'l')maf.i4-t;!.S.the pmcedure but does not

7

contain inforihation explainlng.the rationale forthe agency's deterrninatioh that th~ three-drug

B

9

10
J.l

protocol is "r·easonably necessarytocarry o.utthe purpc>se forwhich it is proposed." (Govt.
Code§ 11346.2(b).) T.hls regulati'on itself relers to the Baze v. Rees deCision, but.as noted
above, this d,edsion was not the.basis upon which the Dep(lrtint;;rit decided to adopt the tht·ee-

12
.13

1.~.
15

drug protocoL
. Defendant's· attempt to

rufemaking process.

cure this deficlencyjnits Ar;!deridumto.the' FSOR come.s to·o late in the

Accordingly, these individ!]ahegu!ations are deemed invalid.

16

·Additional regulations:P'Iainttffs·have cited iri Appx . .Bto the memor<;n d.urn of points and
16

authorities (p. 12, n~ 4), i?re not ·properly ~efore the cov_rt as thg.t document exceeds the· page

19

limit approved by t.hecourt.
20

3.

23
21!

25

·The undispt!ted evidence est.abl!shes fhe.FSORdid.not St.lmmariie·aiid/o_r·respond·to tWo_doZ:e~
or so public comments,. in violation of Govt. Code§ 113'46:9(a) (3):{Vndisputed Fact No. 22-'30}

rf is also- urid tsputed th_at·in Gill, the Dej)artrrienttec·eived Qver 29~40Ci comrr'Jents in wri~ing and

26
2.7

from the pubijchearin.gs. (Defendarit's.Undisp.~t~d FactNo. 2) ·

.•

2·8

7

'·

-~

,.

<

'.,

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!

"Substantial c:;omplrance, as the phrase is used in_the decisions, means acruaf complianceTn,r
1

respect to the substance essential to every reasonable objective of the statute. Where ther_~ is·
3

4

compliance as to all matters of substanc;:·e,technical deviations are not to be given the s·tature

of noncompliance. Substance prevails over form." (Pulaksi, supra, 75 Cal.AppAth at p.132S.)

5

6
7

Despite the large number ofpublit comments properly adpressed by the Dt!partment, the
'failure

to summarize or respond to th~se comments is nota "techniCal defect."

Defendarit

does not assert that the crux of any of th~se comments was. addressed In other responses. The·
9

purpose of the 'APA- "to advance meaningful public participation in the adoption of
ll

<:-d.ministrc;~tiveregulations by state agenGies", is met by giving "interested parties an

12

opportunityto present

13

stateme~ts and arguments anh·e time and pla~e specified in the n9tice

and calls upon the age.ricy to consider all relevant matter presented to. i:t.',- ·(Voss. v. superior

l4

15
16

17
;!.8
·lSI

20

to the central APA requin:iment that all interested persons pe i?ffordej) a meaningfL!Fchance to.
haye their objections ·heard and tci inform the rulemaker'.s decision; i.e., to.allo:W agencies "to
learn from the suggestions of outsiders and

IJ benefit from that advice;"

(San Diego Nursery Co.

21

22

v. Agricultural Lobar Reiations Board (1979) 100 Cai.App-.3Cl128,142-143.) AclditTon:aHy;the

23

undisputed evidence .establishes that some of the Depattifi·ent's,responses to: comments are

24

incomplete, incorrect, or-inadequate. (Undisputed i=f.!ct No. 31,-315)
For example, about 15 comnieriters submitted comments oojec:tfngJq trn:~~use·pf th_e se.~ond

26
27

dru-g, pancuroliium bromide {the paralytic); on vctriaus medico/and humanitodon grol!nds.

28

(Un~l.sputed Fact No. 31) Desp[te the different g1:ounds, the Departrnent answered with.the
a

06/28/2012

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14 cif 23

Ace Attorney Service (213) 623~7527

identical response to each comment summary: "The Unite_d.States Swpreme CoLi it in. Bate v.
.
.
.
.
Rees (2.008) 553

u.s. 35 u):ihetd the ase of. the three c:hemkals, ihdl)dhig pancuronium bron:Me,

identified in these·regulations. ·Accommodation: None." (Undisputed Fact No .. 32)
.
.
.

"This

.

broad, conclusory response iS not a sufficient answer.to explain why the Department initially
5
6

7

a

10
11

selected, and continues to endorse the .u.se of the second·drug·-.pan~uronlu m br:omid.e~ in light
of the spedfic.rnedical and humanitar'ian·c;or\c.ernsraised in these cotorr'lents. Yhe inadequacy
of the response ls esp.eci:aliy~trouWii:g vilheri <:o~slderi ng the .Dep eirtmeht' s adm issfon· that the
three-c!rug protocol was originc;Jl!y·adoptec;l without regard to the deCision in Baze'v. Rees
.
.

{2008} 5,53.U.S. 35, and with no comMer.atio·n of an alternati:ve:; <?ne~drU,g pr~tocol at that time;

nor since that .tim~ h?S the DeP<:lrtment qescribec:! any C!:lternat.ive
13

15
16

·

or explained _why any

-I

alternativeswouJd n'othe eqvaily orrnore effec~ivetqan·the rn~~b.odVI!\tl! pancuroniurn
bromide.
On this record, :the court finds the FSOR su bst~ntially fulled to .comply with this requirement,

.l.7
l.B

inv.alidatFng the ad~ption of these regulations.

.A.
20

It is Lindisp0ted tbat:Def~n\l'antdrd not mail a Notie·e ofthe:Prbpos~d Attion-:to. tliree· civtl.
22

rights grOLIJJS pri9r- to the.·clos!:!;:6f the- 'it1itfal .public comment period .{January. 20;02009)~. and
.
.
..
.
. .

23

s.even. cof!demne.d Inmates,: aJI ofwh.orp had·requeste~ m)tite 1 iJ'\ vi;qlation of ~mit~ Code §_ ..

24
25

27

.11346A: (a)(l). {Undisputed.'fa0 No. 38-41) lt.is. also undisputed that the ·tht:ee:orgarii~citlons

2009. (l.Jndisputed F?C:t No. 3S:.,41).

28

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As to the population o"finrnates generally, Defendant presented evidence it posted the Notice
l

of Proposed Regulations throughol.(t the departments and cell blocks ih San ·o_uentiri; ahd at

2

other penal institutions in the State. (Undisputed Fact No. 41} Plaintiffs· have presented
evidence that this may hav2 been inadequate; as only the:top sheetof:th~se regulations was_
5

visible through the glass cases. [Reply p. 10, Delaye dec!. Ex. A} However, Govt. Code§

6

il346.4(f) provides: ''The failure to mail notice to any person as provided in this section shall

7
B

not inval.Ldate any action taken by.a state agency pursuant to this artide.-" In light ofthe
statute, and the fact the comments of thes~ organizations and persons w~re prepared and

.10

submitted to the Department, a trlabl.e issue exists whet!1er Defendant's violatioJ1 of the APA is

.ll
.12

1

.

•

sufficient to invalidate -~he regulatior:1s: Summary judgr.nen~'is not gp;mted on,this gf6u(1·d.
I
I

r

13
14

5.

15

The undisputed. evidence establishes Defendi:mt did not rn.al(e the cornple.te rulemaking file

16

.available for public revi ew·,.as of the dC~te the Notice of the Pioposed A,dion was pubHshed~ !n

17

18

violation of Govt. Code § 11;3.47:;;(a)..

J.9

!he Department d1d not make· the rulemakihgfile available for publieinspectlon untii)une 1_1,
20

2009, six. we.eks afterth~. publicatiqn of the notice-of proposed action on Ma.y 1
22

51

,

an~ciless than:

three weeks ·before the end of the public: comment p.erioc! on·J une 30J 2009: (Undisp.uted: Fact

23.

No.45)
24
25
25

This·violation is a substantial failur.e·to compfy with .tbe·}I.PA,,which .defec;tunderrnin,f:!d
meaningful· public participation in the rulem~ll<ing pro·cess.

27

2s.
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Contrary to Mr. Goldman's argument, this court finds no support in the iegi.~lative purpose
1

behlnd·the APA to require Plaintiffs to show prejudice from Defendant\ sign iticant d elay.in

2

3

makihg the ru!emaking record avallabie for pubJic.review;

4 .

5

£.

6

The.·rulemaki'ng file itself was incpmpl€.te; i.n Violation GovLCode.§ 1.l347 .3(br I~ is.un,df~puted

7

the rufeniakihg file· did not contain·several Oocume·nts uporiWhidi the Departmeht state·ct it
B

relied in'.drafting these regulatiohs:theSari Quentih_Opet~tlonal Prqcedure, OP 770, on vyhich
.
. ..
.
-::
:
.

9

10.

much ofthe proposed regulations were based; the transcripts, Judge· Fogel's Statement of

11

tntended be.cision, and the experts reports or decf~ratiO'ris admitted as exhibits-in the Morofes

12

v. Tilton .case; the !ethal-injectio() process forth e Fed era 1- Burei:n~ of P.'r:is"ons; responses oy.15
13
14

states to the swrvey sent out by-the; CD,CRand upon wnich_\t.conside!red)l1:draftirig the revisi<:m

15

to OP 770. (Oppo. p. 12, Undi~puted Faci; 1\l(). ~():;63')

16

In light of this defect, the courtfitids:the·Departmeritsubsta_ntially -fuiie:d,-to comt:)ly with this

17

18

requirement .o.fthe APA.

1.9
20

7.

21

Some of the regulations do notco~piV with· the-"CladtY.' standard unoenh:e· APA, w.hkh Is·

22

defined as "written or displayed

so that the meaniti,gofthe. regL!l?ttions wili be und~rstood by

those persons directly affected by thefT\·"· (G.ovt. Code § 11349(c); Regs., tit.1,. §:1&..)
25

2

7

28

Regs. § 33:49.3.2;(a )(1), which d!scusses the W.a.rd~n;s review of informatiqn·b,earing on,th e ·
.

int"r\ateis sanity; conflicts with the ageii'cy's:d~scf\ptroo

of th:e effectofth?s .regofatlon In the:

Add:e 11 dul)1 to1he FSOR. {See Ex. 8! p.,U)
,;

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The explanation that information about the inmate's sanity can be rec~lved at anv time Prioi- to
~:

2

the execution, conflicts with the language of th e·reguiation which limits information ·from tfl e
inmate's attorn.ey to 7 days prio"rto ·th·e execution, at the latest. This creates an ambiguity in
violation of the APA and this in.dividualregulation 15 invalid. (Regs., ·tit.l.,·§ 16(a)(zn

5
6

Conversely, the court finqs no conffid be.tween the regulation distinguishingthe places -a state-

7

employed chaplain and an noncstate employed "Spiritual Advisor" may communicate with the·

B

inmate (Regs.§ 3349.3.4(e)), and the b·epartment's explanation of the effect of this regulation

9
10
;I.l

.12 .

in its responses to comments. (Ex.·so, pp. 51-63)
The use of the terni ''reputable citizen_'' in Regs.§ 3349.2.3, whlch prc;>vision restricts th~
numb~r of witnesses in the viewih{; area, may~ave .rnore than

o.ne -meaning ans:l is .ambfguous

in violation of Cal.·Code Regs.1 ti.L 1, § 16 {a-}(1}. lt is t:mdisputed that this·term is no wti~~e::··
14

lS
16

defined In the regulations or in P"en. Code~ 3605(a). It i? also undisputed the term "citizen'; can
mean the citizen of the United States or the citizen of a foreign_ country, .or any nongovernmental employee. (Undisputed Fact No, 67) Thfs term.ls arc;haic and am.bigu()us, and i:S

lB

19

invalid. The Department should include a definitio~ oHhi's term along with the other

20

definition~ currently found i"11 Regs. § $~49..:t.l.

21

Plaintiffs. have attached Appendix C1 which contains o~trer putative example$ of ambfguotis

·22

24

terms. These additional arguments are not proper!~, before the court,as they exceed the.
expanded

35~page

limit ;approved ·by the court

25

8.
27

Plaintiffs' claim that-certain regulations fail to meet the "'consistency;' stan.dard,ofthe_APA

.;

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defined as "being In harmony with, and not in conflict-with or contradictory to, existing.
.
.
statutes, court decisions, or othetprovl.sions of law.'' (Govt. Code§ 11349(d)L is rejected.

3

Plaintiffs have no standing to. argue th<;~t th.e treatrnent of female condemned Inmates under
4
5

Regs. § 3349.3.6(e) vlolates the Equal Protection. Oauses of the state an.d federal constitutions,_

6

cla·lm·ing the operation of that provision denies fernale inmates, who_ have to be .transferred 150

7

miles from the Central California Wqme·n'sPacilityto S13n Quentin, some the same rights as

8
9-

10
J;1

12

male condemned inmates hoLised 9t sa.n Quentin, e~g., :24:-hour telephone a~cessto their
counsef (§ 3349.3.4(d),{4nc); access -to spiritual advisor-s-(§§ 3349.3.4(e); 3349A.2(b)(l)}; and

j

priority visiting privileges.(§ 3349.3(i)(l).)

I
I

.

.

I

The aH-mal.(:: plaintiffs do not have sb:mdin&to rai:Se the Equal Protectioh challenges on beha!f o .
13
1.4

15

16

condemned female inma~es, be_~aLrse they do not daim·to suffer the disparate treatnrent thev

hypothesize. (See NeilS. v7 M~ni L (201~) 199.CaLAp.pAth ~40 1 255:} '(One who seeks

tci raise

. a constitutio.nal question :must shpw that his rigl~ts . are! i?~fected irijuliously by the taw ~hid{ he··

17

lB
19

at.tacks and.th<;Jt he is actually ag15deved !:tv its:operatf()n. [Citations.]" (People v. Supe~ior Co'urt
.(2002) 104 Cai.App.4th 915, 932, fnternal quotatlons:an.d citations omitted; 7 Witkin,

Sum~.

CaL law (10th ed. 200S).c;orist. Law, §76, pp.1t;;8-:i69.)
21
22

Also, there ls. no merlt:to plaintiffs: claim:that.RE?gs. §'.:$349.;1.:2(al{~)(B), "Recruitment and

23

Selection Process", conflict$ vyith:the.-order by:the:Fe~_er:a:! District Court

in the .:;wos dedsiori of

24
25
26

Plato v. schworzenegger; w:here the Judge appointed .a.Receiverto tak!= control over positions
"related to the d~liver'y ofmed:icaJ,healtl)

car.e" ·a-t CDCR: "The

Receiver sh:all have;the i:futy to
··::"

27

control; oversee, supe rvlse, and-direct ali administrative; p,ersonnel, fihancial, account~ng~

28

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contractu(! I, legal, and other operational functions of the medical deliverv·componentof the

).

2

CDCR." (Request to Take Judldai Notice, Ex. D, p. 4, Undisputed Fact No. 72) Plaintiffs p·resent

3

no evidence that the District Court's ·order was at all concerned with the execution protcfcols at

4

San Quentin. Also, execution is nottantambuntto the delive,Y of medical services. (See
5

Morales v Tifton (N.D. CaL 2006) 465 F.Supp. 2.d 972, ~83 ("Because ao exetution;fs not a

0

7

medical .procedure, and its purpose is not to keep the ·inmate aliye but__rather tq e.nd th.e

a

inmate's !tfe, ..."].)

9

10

9.

11

13

There is no merit to Plaintiffs' riext contention that th.e regulations substantia:lly fail to. comply.
.

with the APA _because tbe regul?tion incorporates documents ~Y reference, without suhJectipg

to the AP A: review process, in violation of caL· code Regs., tit 1,_·§_ 20. ln

14

those documents

15

responses to comments a bout the-procedures for ~xecu.:ti'Qh by lethal ga,s. and the execution of

16
.17

18

condemne_d female inmates1 the Depa.rtment indicatEd the5e _areas would ·I;Je the subjects-of
separate documents and/or r~gulations. (Undi~putec! Fa·ct No. 75-76).

l.S

At the time of approval ofthe St]bject regulations,~m:ii~her referen~ed dpcumen'~ existed, ~:ror
20

are these documents.referred
22
23

to in the language ofthe regulations.

On -t}1fs record, there [s.

insufficient evidence to sh.owthe regulations under review attempted to incorporate by
. referenc~ these propos~d documents within the· mean In&. ofthe.law, and therefore'the

24

regulations. do not violate thfs req_uirement of the APA.
28

That said, wiles~· and untU these pros.p~ctive, 'sep_ar_ate dpcurnents/regu l~tJons bal/e __ p_e_en

27

drafted and approved followlng;>utcessftil comp'letion. o{tbe.APA review and pJJblic cornrnf.nt
28

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process, the Departmen.t has no authority under Regs., tlt.-15, §§ 3349-3349.4.6, to tarty.·out
the execution of condemned inmates

by lethal gas, orto execute any condemned female

inmate.
4

5

10.

6

The Department has fCJiledto include a fisc~! impact·assessment ofthe adminfstration of

7

execution by lethal injection as proposetl by these regulations, in violati·oo of Govt. Code§
8

!.

9

11346.5(a).

Th?re is uncontradicted evidence th<Jtthere wHllikeiy)Je ihcreased-costs from

10

hiring and/or training of additional members for the lethal injection sub-teams; plus overtime

11

compensation for the s,upporti'n~ staff; as well as the additional costs of thethree drug method

12
13
11

15

vs. the one-drug method; and also the reh:nhursementby the CDCR.for extra state and locaf .law
. enforcement persohnef~o handle s.ecurlty matters, crowd control, and traffic c;Jo·sures prior to.
.

.

and on the night ofthe execution. (.un-disputed Fact No. 78-80) Former San Quentrn Warden.

16

Jeanne Woodford stated in a public comment that.pas-t executions by lethal inJection have. cost
17
18

oetw.een.$70,000.00 and $200,0()0.00 each. {Undisputed Fact No, 79)

19

befendantargues, that eithedis~ar .e.stlmates or-supporting documents. .were not requi.red

:w
?1
22
.23

It is no excuse, as

.because "the costs .and fiscal impacts.:o.f._lethal-ihje._ction;exe9utions are ;;;a used by the fact tha~
,,
the Penal Code, not a regulation, mandates this type of execution." {Oppo. p. 13:20-21)

The APA givesthe public a right to know ~·nd'to comment on th.e fiscal tinpact of jm!)lementiri~

24

25

. a regulation ad~pted pui-suant to a state statute,.if foi' no other reasori than· .to recom{llend,
·:;~

26

{llOre efficie11t or less costly methQd·s ofacGomplishing3he ~tatutory purpose .. The Departrpent ·

27

28

1

.

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was required to prepare the -Fiscal estirrate as prescribed by the Departrneritof Finance. Its

1

failure to do so was substantial noncompliance with the procedural requiremerits.o{the A.PA-

2

3

B. Separately, the court denies Plaintlff.5' motion for sumi"\la.ry judgment ontheir'

4

first cause of.a.ction, which alleges there is no substanti~l evidence in the rulemaidng file to

5

show the Usc:! of the second drwg- pancuronitim bromide and/or the third drug- potassium
7

chloride are ''reasonably necessary" to effectuate the purpose fcir whlch the regulations :are·
B

~

·proposed, asJequired byGovt..Code §§ 11342.2, and11350(b) (1)~ (Complaint.1!s 30-41)

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Since thi.s. is PJaJntiffs' motion for summary judgm~nt,'PI.aintifts have the burden to·show there·

11.
12

is.no substantial evidenc~ ln ·the ru:ll:!m!3kingfile,. whf!n c;onsi(ieredln its eAtir.ety; to supp.ort the

13 .

agency's det.erminatio.n the three~drug injection protocol is reasonably nece$sary to effe~tyate.
the pur. pose of the sta~ute. (Govt code§§ 11349(a) [deflnihg.';Necesslty''L"lq.350(b) (1);

15

Desmondv. CountyofContra Costa (1993) 21 Cai.App.4th

15
17

330,336-3~7.)

For our purpos($s,''s\Jb.stantial eviden.ce'' isdefin_ed as wheth~r; based on the entire record1

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there is evidence which is reasonabl-e ih nature, credlbie,.and of solid value?: contradicted or. ·

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uncontradicte~l, whi~b will support the agency's detenniriatlon. (Desinondr supra; 21

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It is undlspL!ted the.iuferiiaklr1gfUe cipnt.ains.documen:ts fayor1:1ble to Defend<rnt; e.g., that ..

24

cauti.on against acct;ptanc~.ofu~ing thiope.ni:al alone to guarantee a lethal effect. (Undfsput!;!d .··

:?.5

Fact No. 85, Eic.SS); ?r confirms the experience in other states that proper ·appficatip0 cifth!'!

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same thre·e-clrug method will'result in~ rapid dea~h of the iniTiate ~vithout· undue pain pr

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sufferlhg. (Undispu~~d Fact No.: 86, Ex: 56,p. 9.3JJ

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In fact, on~ ofthe articles relied upon by Plaintiffs (Undisputed i=acti\lo. 90) indicates that it
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be possible t-o-administer enough thiopental by itse.lf, to guarante~ a lethal effect,

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might not

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(Undisputed Fact No. 90, Ex. 58, pp. 2, 12)

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On this rewrd, the court finds that a triable issue o"f fact exists over 'Nhether the rulemakrng file

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contains substantial eviden.ce to support Defendant's determination that the three-drug

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protocol is reasonably necessary to implementthe statutory mandate. to provide for a letha~
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injection alternative_ The motlon for·sl.)mma.ry judgment on this ground is denied.

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Plaintiffs also argue in a foot_note that the wlemaking fili:! does not contain substantial.e\iidenc
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to support th~ CDCR's detenninatfon of necessity of several other regulations. (MPA p. 34, fl .

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It is improper·to bfiefly raise these issu~s in a-footnote_and exp.ect the co~:~rt to condu. ct ·

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a substantlal.·eyiderice review. Plaintiffs !)ave provided no citation· to the law; to the record, or- •

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16

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Plaintiffs are violating the intent and spirit of the court's order aHowi~g them to file an

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oversizet;! brief. These issues -are :not properly before the court, Clbd the_ courtrefuse:s to

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address these issues at this time.

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any ;malysis of the law to the facts. By attempting to raise these additiqnpl issues i'n a fqotnote,

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:n.
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Plaintiffs' Request to Take Judicial Notlce:o(dpcum'entsfil?.d in separate federal·actfpns, ·i.s
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granted. ( ~v. Code§ 452(d).) Defendant's objections·tothese r~ques~are Overruled_

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Defendant's evidentiary objections Nos. 1-3.-are all Overruled.

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Plaintiffs' shall su.brnita Judgment in th_is m_a:i:ter.
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Dated: D.ecember 19; 2011 ·

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STATE OF CALIFORNIA )
COUNTY OF MARIN
)
MITCHELL SIMS VS. CALIFORNl A DEP ART.MENT OF CORRECTIONS AND
REHABILITATION
ACTION NO.: CIV }0(14019
{PlZOOFOF SERVICE BY Jv1A.Do.-10I3A.., 2015.5 C.C.P.)

I AM AN ElViPLOYEE OF THE Su"'PBRJOR COURTbF MARiN; JAM OVER THE
·AGE ()F EIGHTEEN YEARS A.ND NOTA :PARTY TO TilE WITHIN ABOVE-

ENTITLED ACTION~ MY BUSINESS ADDRESS IS CIVlC CENTER, HALL OF
JUSTICE, $AN R..t\.FAEL, CA 94903 .. ON December 19, 201i J SERVED THE

WITHIN
FL7V..4.L R [lLING RE PMlNTlFF''SM_OTION FOR SUlYIMA.R:Y:JU])·OMENT. IN

SA.ID ACTION TO ALL INTERESTED PARTIES, BY PLAC-1NG A TRUE ·copy
TIIEREOF ENCLOSED IN A S:gALED ENVELOPE WITl=t PO?TAGB THEREON
FUL.LYPREPAlD, IN THE lJNIT.EDSTATES POST OFFICE.·MAIL BOX ATSAN
RAFAEL, CA ADDRE-SSED AS FOLLOWS:
.
.
. .

I

SAJVJ. EiSENBERG
HOTFARJ) RJCENEivfh'ROVSK:i CANADY·
I FALit&RABIUN, A PROFESSIONA.L· .·
CORPORATION
THREE EMBARCADERO CENTER,
7TH P'LOOR ..
SA.N FRANCiSCO~ CA _9.41ll
----c----,.--,-·-

JA.YGOlDJYiAN
])1:-J>UTYATTORNEYGENERAL

455 GOLDEN GATEA VENUE, STE. 11000
_SAN FRANCiSCO, CA. 94102

-·---------··------,-.'-..,..,..,--~-----,-'-------!

JAN NORiY.fA.N
lOOOWll;SHI.RE.BLV:b. #600

ios ANQ.Eies; cA 9ooi-i · ·

NORlyiAN NiLE
400 CAPiTOLlt1AlL:
SU11'E300

.·

.SACR-4Ml::::IVTO;: CA;95814.

1 CERTIFY (OR DECLARE), Vf\ll)EKPENALTY 'OF PERJURY lJNDEJ{ T}fE LAWS OF THE
Sl'A.TE' OF CALIFORNiA THAT THE FOREGOING I::jj'RUE ~4FlD CORRECT. . . . . .
])ATE:

fl. /1- {/

JKW.ff~":).

-~-\i'
,.

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06/28/2012

Ace Attorney Service [phone]

;;,·

.EXHIBIT 2

1 of 4

-----·------- -···----.06/28L21l12.----·--- . ------------Ac.e..Att.orn.ey.S.e.r:vice-~2U)...6.23.:7.52.L--.----·····-·'" ..... __

1

KAMALA D. HARRIS

2

THOMAS S. PATIERSON

3

--2 of4

Supervising Deputy Attorney General ·
State Bar No. 202890

Attorney General of California

4
5
6

1

455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004

APR 2 6 2012·

Telephone: [phone]
Fax: (415) 703.:.5843
·
E-mail: Thomas.Patterson@doj .ca.gov

.Kl"l\-1: TURNER
Cour.t .E.:otl:cu~:h·c Ofticcr
.M:ARIN COUNTY SUPERIOR COURT
By: S. AkConnell. Deputy

Attorneys for Defendants
California DepartmentofCorrections and
- Rehabilitation and Matthew Ca,.te

(Bxem:pt from. filing feesGov. Cod~,§ 6103.)

8
9

SUPERIOR COuRT OF THE STATE OF CALIFORNIA
.
COUNTY OF MARIN..

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11
12

13

MITCHELL SIMS,

Case"_l\fo . .CIV}004019

14

Plaintiff, ·NOTICE. ()FAP:P,E4
15
v;

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18

19

CALIFOR).'fiA DEPARTMENT OF
CORRECTIONS AND .
REHABILITATION,_ et al.,
Defendants.

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21

:TO THE CLERK OF TJiE ABOVE-ENTITLED COURT:

22

NOTICE IS REREBi GIVEN 1:l).at .defendants tile< Gal~±"Qrgi.a: Depanmen't-qf C.or.rectio.ns

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and Rehabilitation :and"its Secretary,_ Matthew -cate, appeal tq the Court ofAppea:l for tJ:ie First

24

District from the judgmentfiled OJ+. February 21, 2012, in favor of-plaintiff Mitchell Sims.

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t11e state's·tJ.-u-ee~&ug prqto.col is the law o-tCaliforpia and shouldnothe-CJ.b?-.nd<?p.ed.·-w:ithout
1

No~ic~ofAppea]

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that has been 1;1pheld by the ·united: States. Sn.prcme Cburt: 11ri:s notice o:fappeal.is:filed bec~use

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inj ectjon protocol for carryii1g out the death penalty, and this protocol. conforms \vith: a procedure

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The state ha~.experid¢d significant. time and :resb'urc~s devel_qping athree·dnig lefual-

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cctvr9o4019)

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---13612812&1-~---

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appellate revil;)w~ and because the superior court made fundamental errors in issuing its decision.

2

At the. same time, appellants recognize that the availability of the three drugs comprising the.

3

current protocol is uncertain, If it becomes certain. in. the future that the drugs needed to

4

implement the protocol have, in fact, bepome unavailable, appellants will reevaluate whether this

5

appeal, or any portions of it, should contim~e to be prosecuted_ In the meantime, urider the

·6

Governor's direction, the Califon:ria Department of Corrections and Rehabilitation win also. begin

7

the process of considering alternative regulatory protocoJs, :including a one-drug :protocol, for

8

carrying out the death penalty.

9
10

Dated: April26, 2012.,

Respectfully Submitted,

11

KAlv!ALA D. HARRIS

Attorney General ofO:ilifornia

12
13
14

· THOMAS S. P~TIERSON

15

Attorneys for Defendants
California Department of Corrections and
Rehabilitation and _Uatthe:w Cate

16
17

18

..

Supervising· Deputy Attorney General

S~Ol0201806

2059.699Ldoc

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28
.2

Notice ()f .AppeaJ (CIVI004019) ·

...,

- -· -06/28/2012

- · Ace·Attorney Service (213)·623-7527 ·

DECLARATION OFBERVICE BY U.S. MAIL
Case Name:
No.:

M. Sims y. CDCR, et a!.
CIV1004019

I declare:
I am employed in the' Office of the Attorney General, which is the office of a member of the·
California State Bar, at which membds ilirection this service is made. 1 am 18 years of age or
older and not a party to this matter. I am familiar with the business practice at the Office of the
Attorney General for collection and-processing of correspondence for mailing with the United
States Postal Service. In accordance with that practice, correspondence placed in the internal
mail collection system at the Office of the Attorney General is deposited with the United States
Postal Service with postage thereon fully prepaid tbat same day in the ordinary course .of
business.
On Anri126, 2012, I se!Ved the attached-

NOTICE Ol!"' APPEAJ.J
by placing a true copy thereof enclosed in a sealed envelope in the internal mail collection.
system at the Office of the Attorney General at 4?5 Golden Gate Avenue, Suite 11000, San
Francisco, CA 94102-7004, .addressed as follows:

Sara J. Eisenberg, Esq.
Howard Rice Nemerovski Canady
Falk & Rabkin
Three Embarca·dero Center, 7th Floor
San Francisco, CA 94111-4024
Attorneyfor Plaintiff
-Mitchell Sims

Norman C. Hile
Orrick, Herrington & Sutcliffe LLP
400 C;1pitol Mall, Suite.3000
Sacramento, CA 94814-4497

Jan B, Norman
Attorney at Law
1000 Wilshire Boulevard, Suite 600
Los Angeles, CA 90017
I declare under pe~tty of perjilry under. the laws of the State of California the fore~oing is true
and correct and that this declara"P.on was executed onApril26, 2012, at San
California.

T. Oakes
Declarant
SF:!Ol0!0!805

20597697.doc

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Ace Attorney Service [phone]

EXHIBIT 3-

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06/28/2012

Ace Attorney Service [phone] ·

Case5:06-cv-00219-JF Document473

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Filed01/19/11

2 of 3

Page1 of 2

**E-Filed 1119/2011 **

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UNITE]) STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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Michael Angelo MORALES et al.,
Plaintiffs,

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Case Number 5-6-cv-219-JF-HRL
Case Number 5-6-cv-926-JF-HRL
DEATH-PENALTY CASE

v.
Matthew CATE, Secretary of the California
Department of Corrections and Rehabilitation,
et al.,

17

Defendants.

ORDER GRANTING MOTION TO
INTERVENE

[Doc. No. 467]

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19

·Plaintiff Michael Angelo Morales, a condemned inmate at San Quentin State Prison,

20

initiated this challenge to the constitutionality of Defendants' protocol for executions by lethal

21

injection. Plaintiff Albert Greenwood Brown, also a condemned prisoner, subsequently moved

22

to intervene. The Court granted the motion, noting that "Brown's federal claims are virtually

23

identical to those asserted by ... Morales." Morales
!

v. Cate, No. 5-6-cv-219-JF-HRL, 2010 WL

24

3751757, at *1 (N.D. Cal. Sept. 24, 2010). Pursuant to guidance from the Court of Appeals, tills

25

Court also stayed Brown's execution. Morales v. Cate, No. 5-6-cv-219-JF-HRL, 2010 WL ·

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3835655 (N.D. Cal. Sept. 28, 201 0).

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Now before the Court is the motion of Mitchell Carlton Si.nis and Stevie Lamar Fields to
intervene as Plaintiffs in this litigation. Both Sims and Fields are similarly situated to Morales

Case Nos. 5-6-cv-219-JF-HRL & 5-6-cv-926-JF-HRL
ORDER GRANTING MOTION TO INTERVENE
(DPSAGOK)

06/28/2012

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Case5:06-cv-00219-JF Document473

Filed01/19/11

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Page2 of 2

and Brown in that they are condemned prisoners whose executions are not otherwise stayed and
2

whose claims in their complaint in intervention are virtually identical to those asserted by

3

Morales and Brown. Accordingly, Sims and Fields are entitled to intervene and, like Morales

4

and Brown, to have their executions stayed until the present litigation is concluded.

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Defendants do not oppose the motion on the merits, (Doc. No. 472 at 2), but they urge the

6

Court to defer ruling on the motion until the California Supreme Court has determined whether

7

the proposed intervenors' attorneys, Michael Laurence and Sara Cohbra, who are affiliated with

8

the Habeas Corpus Resource Center (HCRC), are authorized to participate in actions such as this

9

one. However, Laurence and Cohbra are members ofthe bar ofthis Court, and as such, they

10

"may practice in this Court." Civil L.R. 11-1(a). The question of the scope of the HCRC's

11

authority under state law is not a federal question and has no bearing on the merits of the present

12

motion. If the California Supreme Court ultimately determines that Laurence and Cohbra must

13

withdraw as counsel in this case, this Court will permit an appropriate substitution of counsel at

14

that time.

15

Accordingly, and good cause appearing therefor, th,e motion of Mitchell Carlton Sims and

16

Stevie Lamar Fields to intervene as Plaintiffs in this litigation is granted; the motion hearing

17

presently calendared for February 4, 2011, is hereby vacated. All proceedj.ngs related to the

18

execution of the intervenors' sentences of death, including but not limited to.preparations for an

19

execution and the setting of an execution date, are hereby stayed on the same basis and to the

20

same extent as in the case of Plaintiffs Morales and Brown.

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IT IS SO ORDERED.

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23

DATED: January 19, 2011

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2
Case Nos. 5~6-cv-219-JF-HRL & 5-6-cv-926-JF-HRL
ORDER GRANTING MOTION TO INTERVENE
(DPSAGOK)

ATTACHMENT 3

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TABLE OF CONTENTS
Page

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INTR.ODUCTION ........................................................................................ 1
STATEMENT OF FACTS .......................................................................... 2
ARGUMENT ............................................................................................... 3
I.

II.

Writ Relief Must Be Denied Because CDCR Has Not
Abused Its Discretion in Implementing a Lethal:.. · · ··-· ·· · ...... ·
Injection Protocol. In Fact, CDCR.Has Responded.
Appropriately to Every Court-Imposed Obligation ............... 5

III.

.

The Court Should Not Exercise Its Discretion to Grant
Writ Relief Because the Petition Does Not Seek
Enforcement of a Ministerial Duty But Simply Tries to
Dictate How CDCR Should Exercise Its Discretion............. 3

The Petition Should Be Denied Because CDCR Is
Already Developing an Alt~rnative Lethal-Injection
Process ................................ :.................. ,............................... 8

IV.

The Priority-of-Jurisdiction Doctrine Militates Against
Granting Writ Relief Because Litigation Is Pending in
the First District Court of Appeal Concerning CDCR' s
Obligations Under the AP A Related to Its LethalInjection Protocol. .................... :.~ ...·;: .. :.:\ ................................ 9

CONCLUSION ...................................... ~ .. ~·....... ~·.. :.-..·:.. :: ..... :.......................... 10

1

:.:

TABLE OF AUTHORITIES
Page

CASES

American Federation ofState, County and Municipal Employees v.
Metropolitan Water Dist. ofSouthern California
(2005) 126 Cal.App.4th 247 ................ :........................................... 5, 7
Baze v. Rees
(2008) 553 U.S. 35 ..................................... , ......................... ~.:1, 3, 6, 7
Childs v. Eltinge
.
(1973) 29 Cal.App.3d 843 ............................. ~ ..................................... 9
Galbiso v. Orosi Public Utility Dist.
(2010) 182 Cal.App.4th 652 ........... ,...................... ,............................ .4
Ghilotti Construction Co. v. City ofRichmond ·
(1996) 45 Cal.App.4th 897 ................ :......... :·'··-·····················.·············· 4
Gordon v. Horsley
(200 1) 86 Cal.App.4th 336 ....... :, ...... ~.:., ............. ~ ........................... .4, 5
In re Marriage of Gray
(1988) 204 Cal.App.3d 1239 ............................................................... 9
Levine v. Smith -.
. --. (2006) 145 Cal.App.4th 1131 .............................................................. 9
Lindell Co . . Bd. of Permit Appeals for. the City and County ofS.F.
JJ.
(1943) 23 Ca1.2d 303 ................... :...................................................... .4
Morales v. Cal. Dept. of Corrections and Rehabilitation
(2008) 168 Cal.App.4th 729 ....................................................... passim
People ex rel. Younger v. County ofElDorado
(1971) 5 Cal.3d 480 ............................................................................. 4
Plant Insulation Co. v. Fibreboard Corp.
(1990) 224 Cal.App.3d 781 ................................................................. 9.

11

TABLE OF AUTHORITIES
(continued)
Page

Ridgecrest Charter School v. Sierra Sands Unified School Dist.
(2005) 130 Cal.App.4th 986 ................................................................ 3
STATUTES

Code of Civil Procedure,
.§ 1.085, subd, (a) ................................... :.............................................. 3
Penal Code,
· § 3604, subd. (a) .............................................................................. 2, 5

OTHER AUTHORITIES

California Civil Writ Practice
§ 15.4 ..................... :........................................ ;.................................... 4
Death Penalty Information Center, State by State Lethal Injection
<http://:Www. deathpenaltyinfo. org/state-lethal-injection> .................. 7
2 Witkin, Cal. Procedure (5th ed. 2008) Jurisdiction, § 427 .. .-................. 9

111

INTRODUCTION

Petitioner Bradley Winchell asks this Court to issue a writ of mandate
requiring the California Department of Corrections and Rehabilitation to
develop a new state lethal-injection process in the manner he believes
makes the most sense. The petition does not seek to compel the
performance of a ministerial duty, which is the primary purpose of
mandamus relief. Rather, it mistakenly asserts that CDCR has abused its
discretion-not because CDCR's choices have been arbitrary or
unreasonable-but because litigation challenging the lethal-injection
protocol ha$ delayed implementation of the death penalty. These
allegations cannot support mandamus relief.
The Legislature vested CDCR with discretion in developing the
. state's lethal-injection process. And CDCR has exercised its discretion
appropriately. CDCR's current lethal-injection protocol is similar to a
protocol deemed constitutio.nal by the United States Supreme Court in Baze
v. Rees (2008)553 U.S. 35. Although condemned inmates' legal
· :'··challenges have unfortunately delayed the protocol's implementation,
·· CDCR has appropriately defended the protocol against these challenges.

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And to reduce further delay from the current litigation challenging the

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protocol, CDCR has begun considering alternative protocols for the

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purpose of developing new regulations for an alternative lethal-injection
pr:ocess. Although Petitioner disagrees witlr how CDCR is proceeding, he

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concedes that CDCR's actions have been reasonable.
The petition should be denied because mandamus is unavailable to
substitute Petitioner's judgment for: CDCR' s. The petition should also be.
denied because the relief sought-riamely, the developmepJ '()fari:.i;·O:

is·

alternative lethal-injection protocol- alteady~urrdenvay,., Fi:rially;;~:even,jf
..
the petition could frame a· fadally,·vi~hle·~e.CJ.~est:fpt '\\v~it;i:~Jief.(W:~iqh it

~arrnot), it should be denied because the.iiequesi~d;:relief :sfibul<i·h~'sbught

1

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in the First District Court of Appeal, which is currently reviewing CDCR's
regulatory obligations related to its lethal-injection protocoL

STATEMENT OF FACTS
The Legislature has-vested CDCR with discretion to develop
procedures for the execution of condemned inmates by lethal injection.
(Pen. Code,§ 3604 subd. (a).) In May 2007, CDCR issued Operational
Procedure 770 (O.P. 770), which set forth a detailed protocol that addressed
the entire process of housing and executing condemned inmates at San
Quentin. (Morales v. Cal. Dept. of Corrections and Rehabilitation (2008)
168 Cal.App.4th 729, 733-35.)
Condemned inmates Michael Morales and Mitchell Sims filed a
complaint in Marin County Superior Court for declaratory and injunctive
relief against CDCR, seeking to bar any executions until the state's
· execution ·protocol was promulgated as 'regulations under the
Administrative Pr0ce·dureAct·(AFA). (Ex. 1, pp. 1-8.) In October 2007,
the court grmitedtheit'slllmmacy~udgment>motion and'enjoined O.P. 770's
enforcement arrtil;and~lirt'less ir:was promulgated under the AP A. (Ex. 2,
pp.A0-43.)
CDCR ap·p··ealed;.tliat·t'\alirrg;,rand ori November 21 2008 the Court of
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· Appeal for the: First Appellate·oistrict upheld the superior court's decision. ,

(Morales v. Dal:·tJJept~,vfCorrections and Rehabilitation, supra, 168
Cal.App.4th at p. 732.) The•.opinion affirmed in full the superior court's
summary-judgment rulrftgii'(ilb~id.):'The C0i.lrt concludt~dthat O.P. 770 was
a rule :Of; general applkatio11 1hecause it declared:'how a·certain class of
inmates will be treated, arid that it was not subject to the single-facility
exception· because :"it 'dire6ts;;the perfort:Q.anceofnum.erous functions
'beyond SanQuentin'•s·walls)'·'->(:T~L

at pp(73 9-740:)

rn·'corripliancewith Morales;:··cncR·ptomulgaredtegulatiOhS for a

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three-'drug-lethal.;.injectiorrptotocoL In August 201'0; Sims again·filed:a

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lawsuit in Marin County Superior Court seeking to invalidate the
regulations for failing to substantially comply with the APA. (Ex. 3.) In

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December 2011, the superior court granted plaintiff summary judgment in
favor of plaintiffs, ruling that CDCR did not substantially comply with the
APA's procedural requirements. (Ex. 4, p. 88.) On February 21, 2012, the
court issued judgment, invalidating CDCR's lethal-injection protocol, and
·permanently enjoining CDCR from executing any condemned inmate by
lethal injection until new regulations were promulgated in compliance with
the APA. (Ex. 5, p. 106:18-107:13.)
On April26, 2012, CDCR filed a notice of appeal from the Marin
County Superior Court's judgment. (Ex. 6.) In the notice of appeal, the
Department explained that it was pursuing an appeal because, among other
reasons, the regulations conformed to the procedure the United States

;~ .

Supreme Court_ .upheld inBaze v. Rees. (Id. at p. 127:25~128:8) It further
stated that "under the Governor's direction, the California Department of
Corrections.and Rehabilitation [wo~ld] ... begin the process of considering ·
· < '. alternative regulatory protocols, including a one-drug protocol, for carrying

· out the death penalty." (!d. at p. 128:5-8.)
ARGUMENT
I.

THE COURT SHOULD NOT EXERCISE ITS DISCRETION TO
· GRANT WRIT RELIEF BECAUSE THE PETITION·DOES NOT
SEEK ENFORCEMENT OF A MINISTERIAL DUTY BUT SIMPLY
TRIES TO DICTATE How CDCR SHOULD EXERCISE ITS
DISCRETION.

The primary purpose of a writ of mandate is to compel the
performance of a ministerial legal duty. (See Code Civ. Proc., § 1085,
subd. (a); Ridgecrest Charter School v. Sierra Sands Unified School Dist.
(2005) 130 Cal.App.4th 986, 1002.) Even when addressing ministerial
duties, courts have a great amount of discretion in determining whether to
exercise original jurisdiction to issue a writ, and in the vast majority of

3.

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.

cases, they dedine to do so. (1 Cal. Civil Writ Practice (Cont.Ed.Bar 4th
ed. 20 11) § 15.4, p. 3 52.) Mandamus generally "may be used only to
compel the performance of a duty that is purely ministerial in character,"
and it "may not be invoked to control an exercise of discretion, i.e., to
compel an official to exercise discretion in a particular way." (Ibid.)
"[T]he writ will not lie to control discretion conferred upon a public officer
or agency." (People ex rel. Younger v.-County of ElDorado (1971) 5
Ca1.3d 480, 491.)
In unusual circumstances where a ministerial duty is not at issue,
mandamus ·may be appropriate to compel the exercise of discretion by a
'

.

governmental agency where, under the facts, discretion can only be
exercised in one way. (Ghilotti Construction Co. v. City ofRichmond
(1996) 45 ·Cal.App.4th 897, 904.) But a court generally cannot issue a writ
ofntandate to dictate how an agency-must exercise the discretion with
.

.

whiclfif has been ·vested. (Liridell'CG, v. Bd. pfPermit Appeals for the City

· afz'il:County bfS:F-(1'9:43)!23 CaV2tl303,3l5.)
- · -· · ·.·

.<,_

If' amihiste:ti-aFdtityis'"tiot%at;·isstte; a writ of mandate is only

appropriate where petitioners have-shown that the agency ·abused its
discretion. (Galbiso v. OrosFPublic Utility Dist. (2010) 182 Cal.App.4th ··
Bet~rrnining

_652, 673,)

wpether.,an agency

abu,s~d

its discretio:n. turns not

on whether the agency's findings were supported by substantial evidence,
.. ·.
,

' ·•

~

.

but wh~tb.~rJb:~.-age11cy:' s actiQJ.?.S were1 arbitr'!ry or;c?tpricious,, or entirely
without evidentiary support. (Ibid;) A party seeking rhi:mdamus must show
that the public official or agency invested with,discretion acted arbitrarily,
capriciously; fraudulently~ lor without.due regard for .his rights, and thaHhe
action prejudiced the party: :(Gdrdon-•v: Horsley (2001) 86 Cctl.App.4th 336,
. 3 51.) Additionally, in determining whether an agency .has abused its
·.·discretion, the court may not substitute.its judgment for that of the. agency,
and·ifreasonable·minds may .disagree about the wisdom of the agency's

"

... _:

action, its determination must be upheld. (American Federation of State,

County and Municipal Employees v. Metropolitan Water Dist. of Southern
. California (2005) 126 Cal.App.4th 247, 261.)
The Court should not grant the relief requested here because the
petition does not seek to compel a ministerial duty. Rather, it simply takes

I

issue with how CDCR has exercised its discretion in developing the state's
lethal-injection protocol. But as explained below, writ relief is unavailable
because CDCR has properly exercised its discretion.

II.

WRIT RELIEF MUST BE DENIED BECAUSE CDCRHAS NOT
ABUSED ITS DISCRETION IN IMPLEMENTING A LETHALINJECTION PROTOCOL. IN FACT, CDCR HAS RESPONDED
APPROPRIATELY TO EVERY COURT-IMPOSED OBLIGATION.
.
.

The Legislature has vested CDCR with discretion to develop
. procedures for the execution of condemned inmates by lethal-injection.
(Pen. Code, § 3604, subd. (a).) The petition concedes that section 3604
"implies considerable discretion" to CDCR in establishing the state's
··lethal-injection standards. (Pet. at p. 18.) In the course of developing these
:standards, CDCR has repeatedly been confronted with legal
, ., .:£ '

challep.ge~and

court rulings defining its legal obligations. At every juncture over the.
course of these legal proceedings, CDCR has appropriately exercised.its
discretion to establish lethal-injection standards. Because CDCR has not
acted arbitrarily, capriciously, fraudulently, or in a mannerprejudicial to
Petitioner's rights, writ relief must be denied. (See Gordon v. Horsley,

supra, 86 Cal.App.4th at p. 351.)
,.:
. '•.
:~

In 2007, CDCR issued Operational Procedure No. 770 (O.P. 770),
establishing a three-drug-lethal-injection protocol. (Morales v. Cal. Dept.

of Corrections and Rehabilitation, supra, 168 Cal.App.4th at p. 732.)
Condemned inmates challenged the validity ofO.P. 770 in Marin County ·
Superior Court on the ground that it was adopted without compliance with
the Administrative Procedure Act. (Ibid.) The superior court agreed and

5

struck down the protocol. (Ibid.) CDCR appealed, and argued that
compliance with the AP A was not required under the single-prison
exception because all executions are conducted at San Quentin. (Ibid.)
The First District Court of Appeal rejected this argument, and held
thatCDCR was obligated to promulgate regulations for its lethal-injection
process in compliance with the AP A.· (Morales v. Cal. Dept. of Corrections

and Rehabilitation, supra, 168 CalApp.4th at p. 732.) The court found that

O.P. 770 was a rule of general application because it declared how a certain
class ofinni:ates-condemned inmates-would be treated. (Jd. at p. 739.)
. •

I

It further noted that the protocol was not subject to the single-facility
exception because "it directs the performance of numerous functions
.

.

beyond San-Quentin's walls." (Id. atp. 740.) For example, to ensure that
the .execution team :is -comprised iof qualified rp.embers, the protocol
authorized ~DCR tp,,r:eqmit qu,~li:Q,ed .st;:1ff from other institutions if a
sufficiept. Il:UJ:n:\?,efp(?p:l~i;;not~ib.e;·{i¢lcleg, frOli}.
. :

S-~n

Quentin. (Ibid.)

\&,;·; lfl,_gpm,plia;nc.~ :wJth>MQr<Pl~~lf~Cl"{)QR; PllOm"lllgated regulations
.
..
.
. .
,,
~

.~.

. i.::r;'ptm;iciin;gfona,:;~hre.e,.dr.p:g~leth~litinie~t.io,r,vprocess, similar to the process
uph.e'ld as.cousti:tut~on~Lby,Jbe.i"luuitefltSt(:}tes Supreme Court. (See Baze v

RfJes,:supr;a,

5.~:L~. ;U;·~u4Jtl?;P.-Jfi2'1.~~'~i)!.i\{), ~_oon

(ls those regulations were

promulgated, c.ondelTI11edjQJ.11;:ttecs,;again sued, in.Madn County Superior ·
Court,as.sertingthatCDCR did.notsubstantially,qomply with the AP A
when it promulgated the regull:Ltionso, The supedor court a,greed,. granted
sliinmary judgment against CDCR; and;:,on Fepruar;y·2J, 2012, permanently·
enJoined CBCR from executing any,co11demn~d:dnmat~ ·by lethal injection
.
until new regulations have been promn.lgat~d'!in compliance with the .APA ..
(Pet. Ex. H.) -.·
CDC:& :is ,currently appealingth(lt,rul.ip.g·if:lthe First District. (Ex. 6.)
···GDCR' s ·decision .t.o ,defendrth~_;tbree:-drp.g•·pt()tocol.on appeal certainly
qannotbe-deemed an abuse ofdisct~tio!l;,gi¥enthetime.:l;);nd resources the.

state invested to develop it, the Baze decision, and the fact that numerous
other states and the federal government still use the three-drug method.
(Death Penalty Information Center, State by State Letha/Injection
'<http://www.deathpenaltyinfo.org/state-lethal-injection> [as of May 22,
2012] [identifying the 35 states that have lethal injection as at least a
potential for capital punishment, and noting that most use a three-drug
method, while only six have changed to a single-drug method].) In fact, the
petition admits that CDCR' s three-drug protocol is similar to or better than
the protocol upheld in Baze, and admits that it was within CDCR's
discretion to arlempfto establish and defend the three-drug protocoL (Pet.
at p. 20.) It also correctly admits that CDCR's decision to fight the
<;hallenge to its protocol rather than switching the protocol was within the
CDCR's discretion. (!d.)
The petition simply argues that although those decisions were within
CDCR' s discretion, CDCR is now abusing its discretion because the
litigation has not been quickly resolved. (!d.) The apparent frustration with
·the delays caused by the litigation brought by conderhrtect·intnates is
~

'

~··

..

understandable. But the subjective argument that the litigation has. now
taken too long is not a sufficient basis to engage mandamus· relief.
Moreover, the state is already taking action to reduce further delays
by considering alternative protocols for the purpose of developing new
lethal-injection regulations. (See Ex. 6 and Section III, below.) CDCR's
development of new regulations cannot reasonably be deemed an· abuse of
discretion given the Morales appellate decision and the Sims injunction ..
Against this hackdrop, the petition's legally dubious suggestion that CDCR
should develop an alternative protocol without promulgating new
regulations amounts to nothing more than second-guessing. Mandamus is
not available to second-guess CDCR's considered judgments. (See
American Federation ofState, County and Municipal Employees v.

7

Metropolitan Water Dist. of Southern California, supra, 126 Cal.App.4th at
p. 261.)
Ill.

THE PETITION SHOULD BE DENIED B,ECAUSE CDCR Is
ALREADY DEVELOPING AN ALTERNATIVE LETHALINJECTION PROCESS.

The petition essentially seeks an order compelling CDCR to develop
an alternative lethal-injection process. But, at the Governor's direction,
i

•

•

CDCR has already begun the process of consideri~g alternative regulatory
protocols, including a one-drug protocol, for carrying out the death penalty.
(See Ex. 6.)
The petition suggests that CDCR should simply draft a single-drug,
single-prison, lethal-injection protocol without promulgating new
regulations. But doing so would put CDCR in apparent violation of

Morales andthe permanent injunction in Sims. Rather than expediting the
.

\ '·

-~·.

:· ..,>:·~\~ .} .·. ,i

_ ,.
....

development of a protocol free of legal impediments, the petition's .
.. ~

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proposed co:urse of actio:q,,would inevitably subject CDCR to new litigation,
·: .; \. · -~ >::. ~-::f;.:_r:~~:-..~r<~_:·_,_:[J;~ ~~-~~f.l:::\'r~~q,£:~ :;~;t_D.
.-·\

, .:-. :. . ._: ..;~.-

..\~,

~~

,

; -.

.

.

and a possible injunctton (if not sanctions) from the Marin County Superior
~~~(:'·\ ·-F-~::: ~ :(~'":0':-~y=. ~- L::·.:t: :~~ _, "'---~~ :·~-:-~~ . ~~\~';:<;:~ -~·"·~· ". : :<'

.''..• ~--·:·_ ,. _-··· '· ·' "\ :':

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.

.

Court··~;'th~'':Fi;s1''i)_i;t;I6rcourt ~f'Appeal, cau~ing further delay. The First
·__ r,_~.' ..~ ,<'

•'

_,(:_-;:J~-\~,?f)~:~:'~:~·;\(~~~-1-f}t @·:[::(;ft~~>J~~.t:·;~}"J..":~\~~::¥;\:·.<·:..

'··;

;<'

,\

'

,

••

:

District (llready rej~~ted CDCR' s arguments that the ·single-prison
~· -~ -'·,~ ::};~~~·,;. i::~; . :):;Ft\~~-~n~=:~f~,,..~ ;·g7-.·r.,::·

exce,ption to t];le
;_ · . ~

APA applies.

. '-;_ .::·;_~ ~ /·; . "::"" . ..\'-1;1;:~:<;. >:1~ ).'_7·;>· . ... _,>."

.- ,

(Morales v. Cal. Dept. of Corrections and

~- ':J· ~ ·.:-:.".

:'.

;'

.

.

Rehabilitatiory, supra, 168 Cal.App.4th at p. 740.) And mandamus is not
.~,..:·::·-;.t,~~-~-.:~~ .:-~~:1;~;.;:r.<J~.{!

...-.·,./

/

__ .. ··.-':.: ·

·, ·:

•.

....

. ......

available to second-guess CDCR's determination that an effective lethal. .;i -~

,· /

injection protocol requires involvement by indiyiduals at CDCR

~

._. . . ·-· t. Tr:; :.!:

. . .:

-~_;·.::~·>f}~:::::~~~v.r::.·.~-~-·.;;~·.-!1~~~:' :~-'~ ·~:::"':>:.}·:.?s

;· ~ ...<·

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headquarters and elsewhere.
·.

"'.;.-._..,c:~~;·:,;·.·;'5?)t?~.r~-<"{.·

.:. .-: .

.· ·

·

~-·\··.

.·;

Rather than proceed in the ill-advised manner the petition proposes,
>

I

• ,. '' .".;;, _:;;' ;:

." '

'

~:

,::i

'

,

' ,

,•

CDCR has begun the process of considering -alternative lethal-injection
.
.
~

.

. '

\

.;,

·' . .

"

protocols to develop new regulations so that it complies with its legal
\.t. ;"· ,: ,

<~~.-~:;::::·---~~f:;·:~·::\<: ~:- -~~>-".

.

;.,

)~ . ;;_.

.'

1

~

.

obligations under Si7ns, Morales, and the AP A. In sum, the petition is
·'

,.,

' ' •'1'"':'-:'l["'<o--; -,'•"''•'~\"'

>

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0 .. -

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"r''""''"'-'""~

__ ,_. __ ,,,,,.._,,,~-••·-

unnecessary and should be denied because CDCR already is considering
alternative lethal-injection protocols.
IV.

THE PRIORITY-OF-JURISDICTION DOCTRINE MILITATES
AGAINST GRANTING WRIT RELIEF BECAUSE LITIGATION IS
PENDING IN THE FIRST DISTRICT COURT OF APPEAL
CONCERNING CDCR'S OBLIGATIONS UNDER THE APA
RELATED TO ITS LETHAL-INJECTION PROTOCOL.

Under the doctrine of priority of jurisdiction (sometimes called the
rule of exclusive concurrent jurisdiction), the first superior court to assume
and exercise jurisdiction in the case acquires exclusive jurisdiction until the
-- "inatter is disposed of. (Plant Insulation Co. v. Fibreboard Corp. (1990)
224 Cal.App.3d 781, 786-787.) The doctrine avoids conflict of jurisdiction,
multiplicity of suits, confusion, and contradictory decisions. (Ibid; see also

Levine v. Smith (2006) 145 Cal.App.4th 1131, 1135.) If the court
exercising original jurisdiction has the power to bring before it all the
necessary pa~ies, even though the parties in the second action are not
identical, that will not preclude the application of the rule. (Plant

Insulation Co., at p. 788.) Some courts have viewed the doctrine as
implicating the subsequent court's jurisdiction, while other courts have
viewed the doctrine as implicating considerations of comity and judicial
-discretion. (Compare Plant Insulation Co, supra, 224 Cal.App.3d at pp.
786-787 and Levine

v.

Smith, 145 Cal.App.4th 1131, with Childs v. Eltinge

(1973) 29 Cal.App.3d 843; In reMarriage of Gray (1988) 204 Cal.App.3d
1239; see also 2 Witkin, Cal. Procedure (5th ed. 2008) Jurisdiction, § 427, p ..
1077.)
The writ petition clearly presents AP A issues that are intertwined with
those in CDCR's appeal in Sims, which is currently pending in the First
District Court of Appeal. That case involves, among other things, the
procedures CDCR must follow before conducting any executions by lethal
injection. The judgment CDCR is challenging on appeal permanently

9

,:1'

enjoins it from "carrying out the execution of any condemned inmate by
lethal injection unless and until new regulations governing lethal injection
executions arepromulgated in compliance with the Administrative

I

Procedure Act." (Ex. 5, pp. 106:28-107:3, emphasis added.) The petition's

I.

view that CDCR should develop a new protocol without promulgating new

i:

regulations would seem to place CDCR in direct violation of a plain
reading of the permanent injunction .
. Regardless of whether the priority-of-jurisdiction doctrine is deemed
mandatory·or discretionary, the policy reasons behind it, such as avoiding
multiplicity of suits, jurisdictional conflicts, contradictory decisions, and
confusion, militate against this Court exercising its discretion to grant relief
here. The relief that the petition· seeks would be more appropriately sought
in the First District Court of Appeal, ·where the Sims appeal is currently

.,

pending.
CONCLUSION
... :,: ·.. ~

The Court sh9uld not exercise its discretion to issue a writ of mandate
,:·;~'"~

•

__,,'j\',

;,_''f;

~~.:,~

';,/

because the manJter ~p;.)!Y~ich, CDCR has chosen to implement the lethal- : .,.~ · • -· -~ ·-) ·. ·:.: ;. ~· ,_tJc\· --~~---tt/J'·.rt·· . r'ly.;:. · ~) ·J:(··.

. ·.'

~ .:

.

·

injection pro.to().OL is J~~s()naple and appropriate. CDCR' s actions have not
..

.

~

..: ..... ;

:~~ -<:~' t}t:~<f:;

' (!."".! ·:~·~·~~-<~· t'-• '·

. ,;

·~

··:

.--

.

•

been arbitrary, capriqipus., or ·entirely without evidentiary support. And the
_: L~·'_)' :i .. \'···~:··

:''' ....... :<

···;·::-,;..

.

I

.

•

.

•

.

Court canrwt cowpel :CDCR to exerdse . its discretion in a particular manner.
. .
•';'·
/ :,· :·:.;··.r,.;'
,'
\~

.

.

Moreove.r, t~e G<;)vemor has

~irected

.

.

.

CDCR to begin the process of

considering alte~at.ive-regulations, so the reli~fPytitigner essentially -seeks

·- ,_ ····'-- _··-.;-_· ~-.- ..... -:-.. . . ..-:;:··:·-~y~~:.:: ;_~ _c-- ~-:r i ... _~\:·_: ·i· ... , ··>, ··..

, •:~~·' ,_ il~ ,:
..

•

•

•

.

•

· :. .

• • ; ...:

~-·t.~- i '< \. ;'

,: · .· .

.

is alreaqy underway .. Finally, the relief sought (assuming for argument that
it is substantively viable) should be sought in the First District Court of
:

'

/

•· •·.

'i·;

, '•' ·,;,

.

'·-··

,•

j!,

;

J

I

Appeal, which has already considered CDCR's APA obligations once· and
is now considering those obligations again in the Sims appeal. For all of
these reasons, the petition should be denied.

Dated: May 22, 2012

·Respectfully submitted,
D. HARRIS
Attorney General of California

KAMALA

JONATHANL. WOLFF

Senior Assistant Attorney General

···1~M I fccu,_,___,
S. PATTERSON
Supervising Deputy Attorney General

THOMAS

MICHAEL J. QUINN

Deputy Attorney General
MARISA

Y

KIRSCI:IENBAUER

Deputy Attorney General

Attorneys for Respondents·California
Department of Corrections and
Rehabilitation and Matthew Cate
. , :·, r

SF2012204329
31459954.docx

>

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...

, ....

11