Cooper v. Newsom
| Decision Date | 02 March 2022 |
| Docket Number | No. 18-16547,18-16547 |
| Citation | 26 F.4th 1104 (Mem) |
| 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.
A 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 authority, the district court properly denied intervention. Cooper v. Newsom , 13 F.4th 857, 864–69 (9th Cir. 2021).
The District Attorneys did not seek panel or en banc rehearing of our decision. Instead, one of our colleagues sua sponte called for rehearing en banc, contending that the District Attorneys are entitled to intervene as of right under Federal Rule of Civil Procedure 24(a)(2). A majority of our court voted not to rehear the case. Several of our colleagues now dissent from that decision.
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, gives 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.
California law is clear that the responsibility to formulate, promulgate, and effectuate California's execution protocols is assigned to the defendants in this action—the Governor, the Secretary of the CDCR, and the Warden of San Quentin Prison. Cal. Const. art. V, § 1 ; Cal. Penal Code § 3604 ; Cal. Penal Code §§ 3603, 3605, 3607. California law is also clear that the Attorney General, rather than a District Attorney, has the responsibility to represent these defendants. Cal. Gov't Code § 12512. The California Supreme Court has held that the authority of District Attorneys to participate in civil litigation is "narrow and specific," as expressly defined by statute. Safer v. Superior Ct. of Ventura Cnty. , 15 Cal.3d 230, 237, 124 Cal.Rptr. 174, 540 P.2d 14 (1975). Because the District Attorneys have no statutory authority to participate in this litigation, they have no right to intervene under Rule 24(a)(2).
Our dissenting colleagues contend that our panel's decision "cast[s] aside the will of the people" and "seriously mangle[s] our Rule 24 caselaw." Judge Bumatay Dissent at 1110. They are mistaken on both counts. Our opinion faithfully follows California law; correctly applies Rule 24(a)(2) ; and is consistent with two analogous cases decided by our sister circuits.
Rule 24(a)(2) allows intervention as of right if a party "claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the [party's] ability to protect its interest, unless existing parties adequately represent that interest." Fed. R. Civ. P. 24(a)(2). We apply a four-part test:
(1) the motion must be timely; (2) the applicant must claim a ‘significantly protectable’ interest relating to the property or transaction which is the subject of the action; (3) the applicant must be so situated that the disposition of the action may as a practical matter impair or impede its ability to protect that interest; and (4) the applicant's interest must be inadequately represented by the parties to the action.
Wilderness Soc'y v. U.S. Forest Serv. , 630 F.3d 1173, 1177 (9th Cir. 2011) (en banc) (citations omitted).
"An applicant for intervention has a significantly protectable interest if the interest is protected by law and there is a relationship between the legally protected interest and the plaintiff's claims." United States v. Alisal Water Corp. , 370 F.3d 915, 919 (9th Cir. 2004). The legally protected interest need not be protected under the statute under which the litigation is brought; it is sufficient for the interest to be "protectable under any statute." Id. As we noted in our opinion, Cooper , 13 F.4th at 865, we weigh both practical and equitable concerns, and we interpret the Rule's requirements broadly in favor of intervention. Alisal Water Corp. , 370 F.3d at 919.
The suit into which the District Attorneys seek to intervene was brought by condemned prisoners against the Governor, the Secretary of the CDCR, and the Warden of San Quentin, challenging the constitutionality of California's chosen method of execution. This case has a long history, which we recount in our opinion. See Cooper , 13 F.4th at 860–62. The suit was filed in 2006 by death row inmate Michael Morales, challenging California's then-existing execution protocol. The District Attorneys moved to intervene in June and July 2018.
Our dissenting colleagues argue that the District Attorneys are entitled to intervene on the ground that they have significant interest in enforcing the capital sentences in their counties. We agree that the District Attorneys have the authority to conduct all prosecutions for public offenses, including capital offenses. Cal. Const. art. XI, § 1 (b); Cal. Gov't Code § 26500. California law gives its District Attorneys "sole discretion to determine whom to charge, what charges to file and pursue, and what punishment to seek." Dix v. Superior Ct. , 53 Cal.3d 442, 451, 279 Cal.Rptr. 834, 807 P.2d 1063 (1991). We also agree that the District Attorneys have the authority to seek orders directing the CDCR to carry out judgments of execution entered in their counties. Cal. Penal Code § 3604.1(c). However, the District Attorneys' statutory authority does not include the authority to choose the method by which California executes condemned inmates, or to defend in court those who do have the authority to make that choice.
Our colleagues disagree and contend that California Penal Code § 3604.1(c), enacted pursuant to Proposition 66, gives the District Attorneys a significant protectable interest in the litigation over the constitutionality of California's chosen method of execution. Judge Bumatay Dissent at 1110, 1112-13; Judge Callahan Dissent at 1115-16; Judge VanDyke Dissent at 1118-19. Section 3604.1(c) provides:
The court which rendered the judgment of death has exclusive jurisdiction to hear any claim by the condemned inmate that the method of execution is unconstitutional or otherwise invalid. Such a claim shall be dismissed if the court finds its presentation was delayed without good cause. If the method is found invalid, the court shall order the use of a valid method of execution. If the use of a method of execution is enjoined by a federal court, the Department of Corrections and Rehabilitation shall adopt, within 90 days, a method that conforms to federal requirements as found by that court. If the department fails to perform any duty needed to enable it to execute the judgment, the court which rendered the judgment of death shall order it to perform that duty on its own motion, on motion of the District Attorney or Attorney General, or on motion of any victim of the crime as defined in subdivision (e) of Section 28 of Article I...
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