Cooper v. Newsom
| Decision Date | 02 March 2022 |
| Docket Number | 18-16547 |
| Parties | Kevin Cooper; Albert Greenwood Brown; Ronald Lee Deere; Robert G. Fairbank; Anthony J. Sully, Plaintiffs-Appellees, v. Gavin Newsom; Scott Kernan, Secretary of the California Department of Corrections and Rehabilitation; Ronald Davis, Warden of San Quentin State Prison, Defendants-Appellees, v. San Bernardino County District Attorney; San Mateo County District Attorney; Riverside County District Attorney, Movants-Appellants. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Robert P. Brown (argued), Chief Deputy District Attorney; James R Second, Deputy District Attorney; Jason Anderson, District Attorney; District Attorney's Office, San Bernardino California; Michael A. Hestrin, District Attorney; Ivy B Fitzpatrick, Managing Deputy District Attorney; Office of the District Attorney, Riverside, California; Stephen M Wagstaffe, San Mateo County District Attorney's Office, Redwood City, California; for Movants-Appellants.
John R. Grele (argued), Law Office of John R. Grele, San Francisco, California; David A. Senior, Sara Cobbra, and Ann K. Tria, McBreen & Senior, Los Angeles, California; Norman C. Hile, Orrick Herrington & Sutcliffe LLP, Sacramento, California; Richard P. Steinken, Jenner & Block, Chicago, Illinois; Margo Rocconi and Elizabeth Dahlstrom, Federal Public Defender's Office, Los Angeles, California; for Plaintiffs-Appellees.
Misha D. Igra (argued), Supervising Deputy Attorney General; Monica N. Anderson, Senior Assistant Attorney General; Rob Bonta, Attorney General; Attorney General's Office, Sacramento, California; for Defendants-Appellees.
Before: William A. Fletcher, Danielle J. Forrest, and Lawrence VanDyke, Circuit Judges.
SUMMARY [*]
The panel denied on behalf of the court rehearing en banc after a judge sua sponte called for a vote on whether to rehear this case en banc and the matter failed to receive a majority of votes of the nonrecused active judges in favor of en banc consideration.
The panel opinion affirmed, in part, the district court's denial of a motion to intervene by the District Attorneys of San Bernardino, San Mateo, and Riverside Counties, and dismissed, in part, the District Attorneys' appeal in an action by death row inmates seeking a stay of execution on the ground that California's execution protocol violates the Eighth Amendment. The panel held that the district court (1) properly denied intervention as of right under Fed. R. Civ. P. 24(a) because the District Attorneys had not shown a significant protectable interest in the litigation; and (2) did not abuse its discretion in denying permissive intervention under Fed.R.Civ.P. 24(b).
Concurring in the denial of rehearing en banc, Judge W. Fletcher and Forrest stated that the voters of California approved the Death Penalty Procedures Initiative of 2016, otherwise known as Proposition 66, retaining the death penalty. Inter alia, Proposition 66 created a mechanism allowing District Attorneys to move in the state court that imposed the death penalty for an order directing the California Department of Corrections and Rehabilitation ("CDCR") to "perform any duty needed to enable it to execute the judgment." Cal. Penal Code § 3604.1(c). But neither Proposition 66, nor any other provision of California law, gave District Attorneys authority to participate in choosing the method by which California executes condemned prisoners, or to represent in court those who have the authority to make that choice. The people of California, through their chosen representatives, assigned the ultimate duty to execute state laws to the Governor, Cal. Const. art. V, § 1; the duty to oversee execution procedures to the Secretary of the CDCR, Cal. Penal Code § 3604; the duty to implement execution to the Warden of San Quentin, Cal. Penal Code §§ 3603, 3605, 3607; and the duty to defend state laws and officers to the Attorney General, Cal. Gov't Code § 12512. Because the District Attorneys have no statutory authority concerning the method of execution, they had no right to intervene under Rule 24(a)(2). The panel's opinion faithfully followed California law; correctly applied Federal Rule 24(a)(2); and was consistent with two analogous cases decided by sister circuits: Saldano v. Roach, 363 F.3d 545, 551-56 (5th Cir. 2004), and Harris v. Pernsley, 820 F.2d 592, 600 (3d Cir. 1987).
Dissenting from the denial of rehearing en banc, Judge Bumatay, joined by Judges Gould, Callahan, Ikuta, Bennett and VanDyke, stated that in denying the District Attorneys' intervention in this case, not only did the court cast aside the will of the people, but it seriously mangled its Rule 24 caselaw. Based on this court's precedent for evaluating a prospective intervenor's claim of a "significantly protectable" interest, the panel majority should have ruled that the District Attorneys have a significantly protectable interest in the litigation challenging the constitutionality of California's death penalty protocols. While the District Attorneys' general mandate to enforce criminal judgments may alone be enough to create a protectable interest, Proposition 66 confirmed that they have exceeded the Rule 24 protectable-interest threshold. By approving Proposition 66, the people of California both expressly voiced their will to retain the death penalty and enacted a law expanding the authority of district attorneys to carry out the punishment. The panel majority erred by requiring the District Attorneys to show an on-point statutory grant to intervene in challenges to death penalty protocols. The cramped view espoused by the panel majority could neither be squared with precedent nor with the court's guiding principles favoring intervention. Not only did the court disregard its longstanding view of what constitutes a protectable interest, it also significantly heightened the relationship requirement between the protectable interest and the plaintiff's claims in the litigation.
Dissenting from the denial of rehearing en banc, Judge Callahan, joined by Judges Bumatay and VanDyke, fully joined Judge Bumatay's dissent. Judge Callahan wrote separately to further emphasize the profound practical consequences of the panel majority's ruling. Despite the clear legal mandate from voters in approving Proposition 66, which reaffirmed the electorate's support for the death penalty, the Governor of California unilaterally repealed California's lethal injection protocol and instituted a moratorium on state executions. The Governor and the Secretary of the CDCR then agreed with the plaintiffs, inmates on California's death row, to voluntarily dismiss this case on terms that will resurrect the inmates' Eighth Amendment challenge to the protocol if the Governor's moratorium is ever withdrawn. Cooper v. Newsom, 13 F.4th 857, 863-64 (9th Cir. 2021). Since 2006, California has not executed an inmate on death row. The panel majority's decision rejecting the District Attorneys' attempt to intervene, ostensibly on the ground that they have no legal interest in enforcing the death penalty, is directly contradicted by the terms of Proposition 66, which expressly provides California district attorneys with the right to seek to compel the CDCR to carry out the death penalty. The panel majority's refusal to allow district attorneys to play their important statutory role in enforcing the death penalty means that the specter of this federal court litigation will continue to subvert the voters' will and deny justice to victims' families even if the moratorium is at some point withdrawn.
Dissenting from the denial of rehearing en banc, Judge VanDyke, joined by Judges Callahan, Ikuta and Bumatay, wrote that he agreed and joined in full with Judge Bumatay's and Judge Callahan's dissents. He wrote separately to briefly make one supplemental observation about this circuit's inconsistent application of Rule 24. Judge VanDyke stated that this court needs a standard that will result in setting a more consistent threshold for intervention; the erratic application of Rule 24 needs correction, and if the circuit had taken this case en banc it could have done so by tying Rule 24's "interest" inquiry to the well-established standing doctrine. But until something like that is done-either by this court or the Supreme Court-future parties and panels will be forced to address these issues against the backdrop of the circuit's inconsistent precedents, and the lingering appearance of unfairness they perpetuate.
ORDERA judge sua sponte called for a vote on whether to rehear this case en banc. The matter failed to receive a majority of votes of the nonrecused active judges in favor of en banc consideration. Fed. R. App. P. 35(f). Judge Lee and Judge Koh did not participate in the deliberations or vote in this case. Rehearing en banc is DENIED.
Filed concurrently with this order are Judge W. Fletcher and Judge Forrest's concurrence in and Judge Bumatay's, Judge Callahan's, and Judge VanDyke's separate dissents from the denial of rehearing en banc.
The question in this appeal is whether the District Attorneys of California's San Bernardino, San Mateo, and Riverside counties may intervene in litigation challenging the constitutionality of California's chosen method of execution. We held that because the District Attorneys have no authority under California law to participate in choosing the method by which California executes condemned prisoners, or to represent in court those who do have that...
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