Cooper v. Newsom

13 F.4th 857

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, Applicants in Intervention; Proposed Intervenors, Movants-Appellants.

No. 18-16547

United States Court of Appeals, Ninth Circuit.

Argued and Submitted September 16, 2020 San Francisco, California

Filed September 16, 2021

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, District Attorney, 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, 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; Attorney General's Office, Sacramento, California; for Defendants-Appellees.

Before: William A. Fletcher, Danielle J. Forrest^* ,and Lawrence VanDyke, Circuit Judges.

Partial Concurrence by Judge Forrest ;

Dissent by Judge VanDyke

W. FLETCHER, Circuit Judge:

In 2006, California death row inmate Michael Morales brought suit in federal district court against the Governor of California, the Secretary of the California Department of Corrections and Rehabilitation ("CDCR"), and the Warden of San Quentin State Prison. Morales sought a stay of execution on the ground that California's execution protocol violated the Eighth Amendment. The district court stayed the execution, and numerous death row inmates subsequently intervened as plaintiffs. After the State promulgated a new execution protocol in 2018, the District Attorneys of San Bernardino, San Mateo, and Riverside Counties sought to intervene as defendants. The district court denied intervention, and the District Attorneys timely appealed.

While the District Attorneys’ appeal was pending, newly elected Governor Newsom withdrew California's new execution protocol, placed a moratorium on executions, and closed the execution chamber at San Quentin. Pursuant to a settlement among the parties, plaintiffs voluntarily dismissed their suit subject to specified conditions. The parties contend that the Governor's actions, or in the alternative plaintiffs’ voluntary dismissal of their suit, render the District Attorneys’ appeal moot.

We disagree with the parties and hold that the appeal is not moot. On the merits of the appeal, we affirm the district court's denial of intervention.

I. Background

In 2006, condemned prisoner Morales brought an Eighth Amendment challenge in district court to California's lethal injection protocol. After finding "critical deficiencies" in the protocol, the court held that the protocol violated the Eighth Amendment. Morales v. Tilton , 465 F. Supp. 2d 972, 979 (N.D. Cal. 2006). The court's holding resulted in a sustained de facto moratorium on executions in California. See Morales v. Cate , 623 F.3d 828, 830 (9th Cir. 2010).

In 2010, the CDCR promulgated a new lethal injection protocol. A California Court of Appeal held the new procedure presumptively valid and authorized the resumption of executions. See CDCR v. Superior Court , 2010 WL 3621873, at *4–5 (Cal. Ct. App. Sept. 20, 2010). The State then scheduled the execution of Albert Brown. Brown moved to intervene in the Morales litigation in federal district court and sought a stay of execution. The court granted intervention but denied the stay. Brown appealed the denial of the stay. Morales , 623 F.3d at 829. We remanded to the district court under Baze v. Rees , 553 U.S. 35, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008). Id. at 831. On remand, the court stayed Brown's execution. In the years following, an additional twenty-two plaintiffs intervened in the Morales litigation and obtained stays of execution.

The 2010 lethal injection protocol was challenged by condemned inmate Mitchell Sims in a suit in Marin County Superior Court. Sims argued that the CDCR's adoption of the 2010 protocol did not comply with the California Administrative Procedure Act ("Cal-APA"). Sims v. CDCR , 216 Cal.App.4th 1059, 157 Cal. Rptr. 3d 409, 413 (2013). The Superior Court enjoined the CDCR from carrying out executions "unless and until" it promulgated a new protocol that complied with the Cal-APA. Id. at 427. The California Court of Appeal affirmed. Id. at 428–29.

In November 2016, California voters passed Proposition 66, exempting certain lethal injection protocols from the Cal-APA. The Attorney General successfully defended Proposition 66 in the California Supreme Court. See Briggs v. Brown , 3 Cal.5th 808, 221 Cal.Rptr.3d 465, 400 P.3d 29 (2017). In March 2018, the CDCR promulgated a new lethal injection execution protocol. The Attorney General, representing the CDCR, joined a motion asking the Marin County Superior Court to vacate its injunction, on the ground that the new protocol was not subject to the Cal-APA requirements. The Superior Court granted the motion. We grant the parties’ motion to take judicial notice of the documents in the case (Docket Nos. 38, 93). See In re Korean Air Lines Co., Ltd., Antitrust Litig. , 642 F.3d 685, 689 n.1 (9th Cir. 2011).

After the state court rulings, the sole issue remaining in the federal Morales litigation was the constitutionality of California's new 2018 execution protocol. In June and July 2018, the District Attorneys of San Bernardino, San Mateo and Riverside Counties moved to intervene in the Morales litigation under Federal Rule of Civil Procedure 24 and moved to vacate the stays of execution of the plaintiffs who had been convicted and sentenced in their counties.

The district court denied the motion to intervene as of right under Rule 24(a), holding that the District Attorneys did not have a significant protectable interest relating to the issue in the litigation, and that to the degree that they had such an interest it was adequately represented by the existing parties. The court also denied the motion for permissive intervention under Rule 24(b) on the grounds that the District Attorneys had failed to show a "common question of law and fact between [their] claim or defense and the main action," given that they had "no involvement in the drafting or implementation of any method-of-execution protocol," and that additional delays would likely result if they were allowed to intervene. The District Attorneys timely appealed the denial of intervention.

In 2019, after the District Attorneys filed their notice of appeal, newly elected Governor Newsom was substituted as a Defendant-Appellee in place of Governor Brown. In February 2019, plaintiffs filed a Fifth Amended Complaint challenging the constitutionality of the 2018 protocol. In March, Governor Newsom issued Executive Order N-09-19 ("the Executive Order"), withdrawing the lethal injection protocols, imposing a moratorium on all executions in California, and closing the execution chamber at San Quentin.

The parties moved twice in our court to dismiss the District Attorneys’ appeal as moot. Defendants first moved to dismiss the District Attorneys’ appeal on the ground that the Governor's Executive Order mooted the appeal. A motions panel of this court referred the motion to a merits panel. Following court-assisted mediation, the parties reached a settlement under which, pursuant to two stipulations, plaintiffs voluntarily dismissed their suit without prejudice. See "Stipulation Regarding Procedural Reinstatement of Fifth Amended Complaint" ("Reinstatement Stipulation") and "Stipulation for Voluntary Dismissal Without Prejudice." Defendants then filed a second motion to dismiss the District Attorneys’ appeal, arguing that the dismissal of the underlying suit rendered the appeal moot. We grant plaintiffs’ motion to join defendants’ second motion to dismiss (Docket No. 92). Both motions are before us.

We first address mootness. We then address the merits of the appeal.

II. Discussion

A. Mootness on Appeal

We deny both motions to dismiss the appeal as moot. We address each in turn.

In their first motion to dismiss, defendants argue that because the Executive Order withdrew California's lethal injection protocol, placed a moratorium on all executions, and closed the execution chamber, the District Attorneys’ interest in the litigation—whatever that interest might have been—no longer exists, and the appeal must therefore be dismissed as moot.

Parties seeking a dismissal based on mootness due to voluntary cessation bear "the heavy burden" of demonstrating that "the challenged conduct cannot reasonably be expected to start up again." Bell v. City of Boise , 709 F.3d 890, 898 (9th Cir. 2013) (quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc. , 528 U.S. 167, 189, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) ). Defendants have failed to carry that burden.

Here, the "challenged conduct" is California's allegedly unconstitutional method of execution. The Reinstatement Stipulation provides that defendants will give plaintiffs’ counsel and the district court "written notice" of the Governor's intention to withdraw the Executive Order and "written notice prior to (1) adopting an execution protocol and procedures, or (2) beginning any reassembly of a Lethal Injection...