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Docket No. 18-16547 In the United States Court of Appeals
for the Ninth Circuit
KEVIN COOPER, et al., Plaintiff - Appellees v.
EDMUND G. BROWN, et al., Defendants - Appellees ______Appeal from Denial of Motion to Intervene by the United States District Court for the Northern District of California, No. 06-cv-0219 – Honorable Richard G. Seeborg BRIEF OF APPELLANTS – PROPOSED INTERVENORS
MICHAEL A. RAMOS MICHAEL A. HESTRIN STEPHEN M. District Attorney District Attorney WAGSTAFFE Robert P. Brown Ivy B. Fitzpatrick District Attorney Chief Deputy Managing Deputy COUNTY OF District Attorney District Attorney SAN MATEO James R. Secord COUNTY OF RIVERSIDE 400 County Center Deputy 3960 Orange Street 3rd Floor District Attorney Riverside, CA 92501 Redwood City, CA COUNTY OF (951) 955-5555 94063 SAN BERNARDINO FAX (951) 955-7640 (650) 363-4636 303 West Third Street 5th Floor Attorneys for Appellants San Bernardino, CA 92415 District Attorneys’ Offices (909) 382-7755 of San Bernardino, Riverside FAX (909) 748-1376 and San Mateo Counties Case: 18-16547, 11/21/2018, ID: 11096817, DktEntry: 14, Page 2 of 56
TABLE OF CONTENTS
TABLE OF CONTENTS ...... i
TABLE OF AUTHORITIES ...... iii
I. STATEMENT OF JURISDICTION ...... 1
II. ISSUES PRESENTED ...... 3
III. REVIEWABILITY AND STANDARD OF REVIEW ...... 3
IV. STATEMENT OF THE CASE ...... 4
A. Background of the Criminal Cases ...... 5
1. Albert Greenwood Brown ...... 5
2. Kevin Cooper ...... 7
3. Ronald Lee Deere ...... 9
4. Robert Green Fairbank, Jr...... 12
5. Anthony John Sully ...... 14
B. History of This Case ...... 17
V. SUMMARY OF ARGUMENT...... 24
VI. ARGUMENT ...... 26
A. Intervention by Right ...... 26
1. Timeliness ...... 27
2. Protectable Interest and Impairment ...... 31
3. Representation ...... 35
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B. Permissive Intervention ...... 40
VII. CONCLUSION AND SUMMARY OF REQUESTED RELIEF ...... 42
VIII. CERTIFCATE OF COMPLIANCE ...... 43
IX. STATEMENT OF RELATED CASES ...... 44
ii
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TABLE OF AUTHORITIES
Federal Authorities
Cases
United States Supreme Court
Baze v. Rees, 553 U.S. 35 (2008) ...... 17, 19, 37 – 38
California v. Brown, 479 U.S. 538 (1987) ...... 6
Florida v. Nixon, 543 U.S. 175 (2004) ...... 38
Glossip v. Gross, 576 U.S. __, 135 S.Ct. 2726 (2015) ...... 21, 37 – 38
Gomez v. United States District Court for the Northern District of California, 503
U.S. 653 (1992) ...... 33
Hill v. McDonough, 547 U.S. 573 (2006) ...... 34
National Association of Colored People v. New York, 413 U.S. 345 (1973) ...... 27
Nelson v. Campbell, 541 U.S. 637 (2004) ...... 33
Phyle v. Duffy, 334 U.S. 431 (1948) ...... 39
Securities and Exchange Commission v. United States Realty & Improvement Co.,
310 U.S. 434 (1940) ...... 41
Trbovich v. United Mine Workers, 404 U.S. 528 (1972) ...... 35
Denials of Certiorari
Brown v. California, 513 U.S. 845 (1994) ...... 6
iii
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Brown v. Ayers, 555 U.S. 837 (2008) ...... 7
Cooper v. Ayers, 558 U.S. 1049 (2009) ...... 9
Cooper v. California, 502 U.S. 1016 (1991) ...... 8
Deere v. California, 502 U.S. 1065 (1992) ...... 11
Deere v. Chappell, __ U.S. __, 135 S.Ct. 76 (2014) ...... 12
Fairbank v. Ayers, 565 U.S. 1276 (2012) ...... 13
Fairbank v. California, 525 U.S. 861 (1998) ...... 13
Sully v. Ayers, __ U.S. __, 134 S.Ct. 2697 (2014) ...... 16
Sully v. California, 503 U.S. 944 (1992) ...... 16
Ninth Circuit Court of Appeals
Arakaki v. Cayetano, 324 F.3d 1078 (9th Cir. 2003) ...... 31, 38
Blake v. Pallan, 554 F.2d 947 (9th Cir. 1977) ...... 31, 32
Brown v. Ornoski, 503 F.3d 1006 (9th Cir. 2007) ...... 5, 6 – 7
Cooper v. Brown, 510 F.3d 870 (9th Cir. 2007) ...... 7, 9
Cooper v. Brown, 565 F.3d 581 (9th Cir. 2009) ...... 9
Cooper v. Calderon, 255 F.3d 1104 (9th Cir. 2001) ...... 8
Cooper v. Woodford, 358 F.3d 1117 (9th Cir. 2004) ...... 9
Deere v. Cullen, 718 F.3d 1124 (9th Cir. 2013) ...... 9 – 10, 12
Deere v. Woodford, 339 F.3d 1084 (9th Cir. 2003) ...... 11
iv
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Evans v. United States Department of Interior, 604 F.3d 1120 (9th Cir. 2010)
...... 1, 4, 26
Fairbank v. Ayers, 650 F.3d 1243 (9th Cir. 2011)...... 13
Fresno County v. Andrus, 622 F.2d 436 (9th Cir. 1977) ...... 32
Goldstein v. City of Long Beach, 715 F.3d 750 (9th Cir. 2013) ...... 33
League of United Latin American Citizens v. Wilson, 131 F.3d 1297 (9th Cir. 1997)
...... 2, 4, 40
Morales v. Cate, 623 F.3d 828 (9th Cir. 2010) ...... 19
People of the State of California ex rel. Van de Kamp v. Tahoe Regional Planning
Agency, 792 F.2d 779 (9th Cir. 1986) ...... 31
Perry v. Proposition 8 Official Proponents, 587 F.3d 947 (9th Cir. 2009) ...... 2, 4
Sagebrush Rebellion, Inc. v. Watt, 713 F.2d 525 (9th Cir. 1983) ...... 39
Sierra Club v. United States Equal Protection Agency, 995 F.2d 1478 (9th Cir.
1993) ...... 27, 31
Smith v. Los Angeles Unified School District, 830 F.3d 843 (9th Cir. 2016) ...... 28
Sully v. Ayers, 725 F.3d 1057 (9th Cir. 2013) ...... 16
United States v. Alisal Water Corporation, 370 F.3d 915 (9th Cir. 2004) ...... 28
United States v. City of Los Angeles, 288 F.3d 391 (9th Cir. 2002) ...... 27
Wilderness Society v. United States Forest Service, 630 F.3d 1173 (9th Cir. 2011)
...... 27
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Other Federal Cases
Brumfield v. Dodd, 749 F.3d 339 (5th Cir. 2014) ...... 31
Nuesse v. Camp, 385 F.2d 694 (D.C. Cir. 1967) ...... 32
United States v. American Telephone and Telegraph Co., 642 F2d 1285 (D.C. Cir.
1980) ...... 38
United States v. Union Electric Company, 64 F.3d 1152 (8th Cir. 1995) ...... 30
Deere v. Calderon, 890 F.Supp. 893 (C.D. Cal. 1995) ...... 11
Deere v. Cullen, 713 F.Supp. 1011 (C.D. Cal. 2010) ...... 11 – 12
Morales v. Hickman, 415 F.Supp.2d 1037 (N.D. Cal. 2006) ...... 17
Morales v. Tilton, 465 F.Supp.2d 972 (N.D. Cal. 2006) ...... 17 – 18
Stevenson v. Rominger, 905 F.Supp 836 (E.D. Wash. 1995) ...... 32
Statutes
18 U.S.C. § 3626 ...... 37
28 U.S.C. § 1291 ...... 1
28 U.S.C. § 1343(a)(3) ...... 1
28 U.S.C. § 2107(a) ...... 2
42 U.S.C. § 1983 ...... 1, 17
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Rules
Fed. R. App. P. 4(a)(1)(A) ...... 2
Fed. R. App. P. 32(a)(7)(B)(i) ...... 43
Fed. R. Civ. P. 24(a)(2) ...... 1, 3, 26 – 27, 38
Fed. R. Civ. P. 24(b)(1)(B) ...... 1, 41
9th Cir. R. 28-2.2 ...... 1
9th Cir. R. 28-2.6 ...... 44
9th Cir. R. 32-1(a) ...... 43
N.D. Cal. Civ. R. 7-3(a) ...... 23
N.D. Cal. Civ. R. 7-3(c) ...... 23
Acts
The Prison Litigation Reform Act of 1995 (18 U.S.C. § 3626) ...... 37 – 38
California State Authorities
Cases
California Supreme Court
Briggs v. Brown, 3 Cal.5th 808 (2017) ...... 21, 28
Dix v. Superior Court, 53 Cal.3d 442 (1991) ...... 32
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People v. Brown, 40 Cal.3d 512 (1985) (Brown I) ...... 5 – 6
People v. Brown, 45 Cal.3d 1247 (1988) (Brown II) ...... 6
People v. Brown, 6 Cal.4th 322 (1993) (Brown III) ...... 6
People v. Cooper, 53 Cal.3d 771 (1991) ...... 7 – 8
People v. Deere, 41 Cal.3d 353 (1985) (Deere I) ...... 11
People v. Deere, 53 Cal.3d 705 (1991) (Deere II) ...... 9, 11
People v. Fairbank, 16 Cal.4th 1223 (1997) ...... 12 – 13
People v. Rowland, 4 Cal.4th 238 (1992) ...... 20
People v. Sully, 53 Cal.3d 1195 (1991) ...... 14 – 16
Other California Appellate Courts
Faunce v. Denton, 167 Cal.App.3d 191 (1985) ...... 18
In re Garcia, 67 Cal.App.4th 841 (1998) ...... 18
Morales v. California Department of Corrections and Rehabilitation, 168
Cal.App.4th 729 (2008) ...... 18, 36
People v. Brophy, 49 Cal.App.2d 15 (1942) ...... 33
Stoneham v. Rushen, 137 Cal.App.3d 729 (1982) ...... 18
Constitution
Cal. Const. art. I, § 28(e) ...... 34
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Cal. Const. art. V, § 13 ...... 33, 38, 39
Cal. Const. art. XI, § 1(b) ...... 32
Statutes
Cal. Gov’t Code § 12511 ...... 39
Cal. Gov’t Code § 12511.5 ...... 39
Cal. Gov’t Code § 12511.7 ...... 39
Cal. Gov’t Code § 12518 ...... 39
Cal. Gov’t Code § 26500 ...... 32
Cal. Penal Code § 190.2 ...... 5
Cal. Penal Code § 190.6(d) ...... 34
Cal. Penal Code § 684...... 35
Cal. Penal Code § 1227(a) ...... 34
Cal. Penal Code § 1265(a) ...... 34
Cal. Penal Code § 1509(a) ...... 34
Cal. Penal Code § 3600 ...... 35
Rules
Cal. R. Ct. 8.500(b) ...... 37
Cal. R. Ct. 8.500(b)(1) ...... 37
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Regulations
15 Cal. Reg. § 3349(a) ...... 22
15 Cal. Reg. § 3349.1(i) ...... 22
Acts
California Administrative Procedures Act (Cal. Gov. Code § 11340 et. seq.) ... 18, 19, 20
Ballot Initiative
Proposition 66, The Death Penalty Reform and Savings Act of 2016 ...... passim
Other State Authority
Cases
Evans v. State, 396 Md. 256 (2006) ...... 18
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I. STATEMENT OF JURISDICTION
Pursuant to Ninth Circuit Rule 28-2.2, Proposed Intervenors and Appellants, the District Attorneys of San Bernardino, Riverside, and San Mateo Counties
(District Attorneys), submit the following statement of jurisdiction:
a. The United States District Court for the Northern District of California
(District Court) had subject matter jurisdiction over this action by Plaintiffs-
Appellees Cooper, et al. (Plaintiffs) against Defendants-Appellees Brown, et al.
(Defendants) pursuant to 28 U.S.C. § 1343(a)(3) and 42 U.S.C. § 1983.
b. On July 18, 2018, the District Court issued its Order denying the
District Attorneys’ motions to intervene in the underlying matter (Excerpts of
Record [ER] 1 – 11). The denial addressed both intervention as of right under
Federal Rule of Civil Procedure 24(a)(2) (ER 4 – 9), and permissive intervention under Federal Rule of Civil Procedure 24(b)(1)(B) (ER 9 – 10).
“A district court’s denial of intervention as a matter of right is appealable as a final order . . ..” Evans v. United States Department of Interior, 604
F.3d 1120, 1121 (9th Cir. 2010). Therefore this Court has jurisdiction as to this issue pursuant to 28 U.S.C. § 1291. Evans, 604 F.3d at 1121.
The question of jurisdiction over the denial of a motion for permissive intervention is intertwined in this circuit with the merits of the issue itself. Should this Court review the decision and conclude that the District Court abused its
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discretion in denying permissive intervention, then this Court has jurisdiction over the issue. Perry v. Proposition 8 Official Proponents, 587 F.3d 947, 955 (9th Cir.
2009). If the Court finds abuse of discretion error, then it not only has jurisdiction, but must also reverse the decision. League of United Latin American Citizens v.
Wilson, 131 F.3d 1297, 1307 – 1308 (9th Cir. 1997). Conversely, if no abuse occurred, then jurisdiction cannot be found. Id.
c. The District Attorneys appeal from the District Court’s denial of their motions to intervene. The District Court’s Order was filed on July 18, 2018 (ER
11). Notice of Appeal was filed by the District Attorneys on August 14, 2018 (ER
45 – 46), and was therefore timely under 28 U.S.C. § 2107(a) and Federal Rule of
Appellate Procedure 4(a)(1)(A).
///
///
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II. ISSUES PRESENTED
(1) Did the District Court commit legal error when it denied the District
Attorneys of San Bernardino, Riverside, and San Mateo Counties intervention as a matter of right in Morales v. Diaz, Northern District of California case # 06-cv-0219
RS, under Federal Rule of Civil Procedure 24(a)(2)?
(2) In the alternative, did the District Court commit legal error when it denied the District Attorneys permissive intervention?
III. REVIEWABILITY AND STANDARD OF REVIEW
The District Attorneys contend that the District Court erred in its denial of their motions to intervene as a matter of right in two ways. First, although the
District Court found that the District Attorneys addressed a cognizable and important interest in the proceedings (ER 5 – 6), it ruled that the interest did not belong to the
District Attorneys in the litigation, or at least solely to the District Attorneys (ER 6
– 7). Second, and related to the first finding, the District Court erroneously found that the Attorney General’s presence in the litigation ensures that the aforementioned interest is already adequately represented (ER 8 – 10). The District Attorneys do agree, however, that the District Court properly ruled that their motions to intervene were timely (ER 4).
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The District Court’s ruling on the issue of intervention as a matter of right is reviewed by this Court de novo. Evans v. United States Department of Interior, 640
F.3d 1120, 1121 (9th Cir 2010). The District Court’s determination that the District
Attorneys’ motions to intervene were timely, however, is only reviewed for an abuse of discretion. League of United Latin American Citizens v. Wilson, 131 F.3d 1297,
1302 (9th Cir. 1997).
The District Attorneys further contend that the District Court erred in its rejection of permissive intervention over concern of excessive additional delay to the proceedings (ER 9 – 10). The District Attorneys explicitly seek a limited path in the litigation designed to end the proceedings completely.
As previously mentioned in the basis for jurisdiction, this Court’s standard of review for a denial of permissive intervention is an inquiry of abuse of discretion by the District Court. Perry v. Proposition 8 Official Proponents, 587 F.3d 947, 955
(9th Cir. 2009).
IV. STATEMENT OF THE CASE
The District Attorneys come before this Court after more than 35 years of collective litigation in the wake of the blood shed by 15 murder victims who died at the hands of the condemned inmate Plaintiffs in this case. While this appeal focuses on the procedural aspects of the motions to intervene, the District Attorneys’ decided
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interests in this case cannot be appreciated without a recognition of the facts that led them here.
A. Background of the Criminal Cases
1. Albert Greenwood Brown
On the morning of October 28, 1980, 15-year-old Susan Jordan departed her home to walk to high school. Brown v. Ornoski, 503 F.3d 1006, 1008 (9th Cir.
2007). Before reaching her destination, she was attacked, raped and strangled with a shoelace. Id. at 1008 – 1009. Her body was left unclothed from the waist down in an orange grove. Id. at 1009. Following her disappearance, and before the apprehension of Albert Greenwood Brown (Plaintiff Brown), Ms. Jordan’s family received taunting phone calls indicating that they would never see their daughter again and telling them where her body could be found. Id.
Plaintiff Brown, who was on parole for the prior rape of a 14-year-old girl, was convicted by a jury of the murder of Susan Jordan. Id. at 1009. The jury also found true the special circumstance1 that Plaintiff Brown committed the murder in the course of rape. Id. The jury further returned a verdict fixing the penalty at death.
Id. at 1010. The case took place in Riverside. People v. Brown, 40 Cal.3d 512, 522
(1985) (Brown I).
1 California’s Special Circumstances qualify a murder for a potential sentence of death. See Cal. Penal Code § 190.2. 5
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On direct review, the California Supreme Court affirmed Plaintiff Brown’s conviction, but reversed the death sentence under a belief that the jury was instructed in a way that would allow it to use a mitigating factor as an aggravator instead. Id. at 536 – 538. The United States Supreme Court disagreed with the California
Supreme Court’s assessment of the instruction in question, and remanded the case.
California v. Brown, 479 U.S. 538, 543 (1987). The California Supreme Court then reversed the judgment of death only, due to an absence of trial court record pertaining to an automatic statutory motion to set aside the death verdict. People v.
Brown, 45 Cal.3d 1247, 1263 – 1264 (1988) (Brown II). The trial court held a corrective hearing and again fixed the sentence at death. People v. Brown, 6 Cal.4th
322, 327 (1993) (Brown III). Certiorari was denied. Brown v. California, 513 U.S.
845 (1994).
Plaintiff Brown sought relief via federal writ of habeas corpus from the
Central District of California. Brown v. Ornoski, supra. His claims focused on purported ineffective assistance of counsel related to the penalty phase of his trial, plus an added claim challenging lethal injection under the Eighth Amendment. Id. at 1010. This Court rejected the former claims, noting that the pursuit of alternate explanations for Plaintiff Brown’s behavior was doubtful to be sufficient to
“overcome the substantial aggravating case.” Id. at 1016. This Court also rejected the latter contention, noting, “There is no Supreme Court precedent holding lethal
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injection to be unconstitutional . . ..” Id. at 1017. The Supreme Court denied certiorari. Brown v. Ayers, 555 U.S. 837 (2008).
2. Kevin Cooper
In 1983, Douglas and Peggy Ryen shared a home in Chino, California, with their two children, 10-year-old Jessica and eight-year-old Joshua. People v. Cooper,
53 Cal.3d 771, 794 (1991). The family of 11-year-old Christopher Hughes socialized with the Ryens, and on June 4, 1983, both families attended a barbecue at a mutual friend’s home in the area. Id. Christopher Hughes obtained permission to accompany the Ryens back to their house for the evening and spend the night. Id.
Unbeknownst to the Ryens and Christopher Hughes, Kevin Cooper (Plaintiff
Cooper) had come to California earlier that year after escaping from a prison in
Pennsylvania, where he had been serving time for kidnapping, rape and residential burglary. Cooper v. Brown, 510 F.3d 870, 894 (9th Cir. 2007). After being convicted of additional burglaries in California, Plaintiff Cooper again escaped from incarceration at the California Institute for Men in Chino. People v. Cooper at 794
– 795, 802.
Following this most recent escape, Plaintiff Cooper concealed himself in a house neighboring that of the Ryen family. Id. at 795. The night the Ryens and
Christopher Hughes returned to the Ryen home after the barbecue, Plaintiff Cooper broke into the house and attacked the Ryens and Christopher Hughes with a hatchet
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and knife. Id. at 794. Douglas Ryen, Peggy Ryen, Jessica Ryen and Christopher
Hughes were all hacked or stabbed to death. Id. at 794 – 795. Joshua Ryen was also attacked, but managed to survive his injuries after spending the night lying next to the bodies of his mother, Peggy, and Christopher Hughes. Id.
Plaintiff Cooper fled the Ryen home in the Ryens’ station wagon, which was found in the parking lot of a Long Beach church two days later. Id. at 799. His flight continued out of the country, as he sought refuge in Tijuana, Mexico. Id. at
796.
The case against Plaintiff Cooper arose within (and was prosecuted by) San
Bernardino County. However, a change of venue was granted so that trial occurred in San Diego County. Id. at 802 – 803. The jury convicted Plaintiff Cooper of the first degree murders of the Ryen family and Christopher Hughes, and the attempted murder of Joshua Ryen. Id. at 793. The special circumstance of multiple murder was found to be true. Id. The jury fixed the punishment for Plaintiff Cooper as death, and the trial court denied the automatic motion to modify that verdict. Id.
Plaintiff Cooper’s postconviction procedural history is extensive. The United
States Supreme Court denied certiorari on direct appeal, Cooper v. California, 502
U.S. 1016 (1991), but a panoply of federal habeas litigation led to significant review of the case and a host of post-trial DNA testing. This Court affirmed an initial denial of federal habeas relief. Cooper v. Calderon, 255 F.3d 1104 (9th Cir. 2001).
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Plaintiff Cooper’s second attempt involving a claim of factual innocence was permitted by this Court to settle the contention that “the questions of Mr. Cooper’s innocence be answered once and for all.” Cooper v. Woodford, 358 F.3d 1117, 1124
(9th Cir. 2004). Following further scientific testing on the physical evidence in the case under the supervision of the District Court, this Court concluded that it “agrees with the post-conviction DNA results and all of the courts that came before it in this case: [Plaintiff Cooper] is the one responsible for these brutal murders.” Cooper v.
Brown, 510 F.3d at 1004. The petition for writ of habeas corpus was therefore denied. Id. This Court denied a rehearing en banc, Cooper v. Brown, 565 F.3d 581
(9th Cir. 2009), and the United States Supreme Court denied certiorari. Cooper v.
Ayers, 558 U.S. 1049 (2009).
3. Ronald Lee Deere
Don and Kathy Davis had two children, Michelle and Melissa. People v.
Deere, 53 Cal.3d 705, 711 (1991) (Deere II). Michelle and Melissa Davis were seven and two. Deere v. Cullen, 718 F.3d 1124, 1125 – 1126 (9th Cir. 2013). On
March 4, 1982, Don, Michelle and Melissa Davis were all murdered by Ronald Lee
Deere (Plaintiff Deere) in Riverside County simply because Kathy Davis’s sister,
Cindy Gleason, ended her relationship with Plaintiff Deere. Id. at 1127.
Plaintiff Deere harbored a grudge against Don Davis because he apparently believed that Don Davis had implied Kathy Davis “was involved with [Plaintiff]
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Deere.” Id. Plaintiff Deere sought his revenge by obtaining a .22 caliber rifle, breaking into the Davis family trailer, and waiting for Don Davis to return home. Id. at 1127 – 1128. When Don Davis and his daughters arrived, Plaintiff Deere killed all three of them with the rifle. Id. at 1128. Kathy Davis and Cindy Gleason found the bodies of Kathy Davis’s husband and children later that evening. Id.
Plaintiff Deere fled to the desert near Blythe. Id. The police found him five days after the murders. Id. At his desert campsite, they found the murder weapon and ammunition, and Don Davis’s truck was located nearby. Id. When interviewed by a psychiatrist shortly after arrest, Plaintiff Deere admitted his culpability and indicated that he hoped he would “get the gas chamber.” Id.
Plaintiff Deere ultimately persuaded his counsel to let him plead guilty to the murders. Id at 1130. After the parties stipulated that the trial court could use the transcript of Plaintiff Deere’s preliminary hearing transcript as a basis for determining the degrees of the crimes, the court found that the murder of Don Davis was in the first degree, and that the murders of the two children were in the second degree. Id. at 1133 – 1134. For the penalty phase of the proceeding, both sides waived jury. The trial court sentenced Plaintiff Deere to death for the murder of Don
Davis, and to 15 years to Life for each of the murders of Michelle and Melissa Davis.
Id. at 1135.
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On initial appeal, the California Supreme Court reversed Plaintiff Deere’s death sentence after finding that his trial counsel was ineffective by failing to present evidence in mitigation. People v. Deere, 41 Cal.3d 353, 360 – 368 (1985) (Deere
I). Upon remand for another penalty trial, Plaintiff Deere again waived jury. Deere
II at 712. Pursuant to Plaintiff Deere’s direction, defense counsel again did not present mitigating evidence other than that which arose from the preliminary hearing. Id. After initially finding counsel in contempt for failure to follow a court order to present such evidence, the trial court reversed that order, and after investigation from “an independent investigator and attorney,” resentenced Plaintiff
Deere to death. Id. On direct review, the California Supreme Court affirmed the judgment. Id. at 727. The United States Supreme Court denied certiorari. Deere v.
California, 502 U.S. 1065 (1992).
On federal habeas, the District Court denied Plaintiff Deere’s requested relief based on timeliness procedural bars. Deere v. Calderon, 890 F.Supp. 893 (C.D. Cal.
1995). The court also founds his belated claims of insanity did not render him
“actually innocent.” Id. at 904. This Court remanded the case for an evidentiary hearing into Plaintiff Deere’s competence at the time of his trial. Deere v. Woodford,
339 F.3d 1084 (9th Cir. 2003). As a result of that hearing, the District Court reversed the conviction and judgment based on ineffective assistance of counsel pertaining to
Plaintiff Deere’s competence to stand trial. Deere v. Cullen, 713 F.Supp. 1011, 1027
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– 1043 (C.D. Cal. 2010). Upon review, this Court found that the “belated opinions of mental health experts are of dubious probative value,” given the passage of eleven years from the time of Plaintiff Deere’s trial before those opinions were presented.
Deere v. Cullen, 718 F.3d at 1146 – 1147. The District Court’s granting of habeas relief was reversed. Id. at 1147. The United States Supreme Court denied certiorari.
Deere v. Chappell, __ U.S. __, 135 S.Ct. 76 (2014).
4. Robert Green Fairbank, Jr.
In early December 1985, Wendy Cheek told a friend that she planned to attend a party at the friend’s house that evening in San Francisco. People v. Fairbank, 16
Cal.4th 1223, 1232 (1997). Although Ms. Cheek did not live far away, she never arrived at the party. Id. Her family began looking for her, but could only find her car near the friend’s house. Id. Two days after Ms. Cheek’s disappearance, a motorist found her body in a grove of trees in San Mateo County. Id. She was unclothed, partially burned, and had suffered multiple stab wounds. Id. Blood was found under her fingernails. Id.
Robert Green Fairbank, Jr. (Plaintiff Fairbank) lived in the neighborhood where Ms. Cheek’s car was found. Id. at 1233. The woman with whom Plaintiff
Fairbank lived indicated that he was frequently abusive with her, to the extent where she was hospitalized around the same time Ms. Cheek was last seen. Id. Plaintiff
Fairbank visited her in the hospital the day Ms. Cheek disappeared, and appeared to
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be upset. Id. Plaintiff Fairbank said that he had been involved in a murder that had taken place in the woods in the hills. Id. Various pieces of physical evidence tied
Plaintiff Fairbank to Ms. Cheek’s murder, including her blood being found in a steamer trunk that was missing from the car Plaintiff Fairbank shared with his girlfriend. Id. Other evidence indicated that Plaintiff Fairbank had a history of violence and sexual assault upon women. Id. at 1235 – 1236.
Plaintiff Fairbank pled guilty to the first degree murder of Wendy Cheek and admitted the special circumstances that the murder was committed during the course of attempted oral copulation and torture. Id. at 1231. A penalty trial was held before a jury, after which a verdict of death was returned. Id. The trial court thereafter sentenced Plaintiff Fairbank to death. Id. at 1232. On direct review, the California
Supreme Court affirmed the judgment. Id. at 1256. The United States Supreme
Court denied certiorari. Fairbank v. California, 525 U.S. 861 (1998).
This Court affirmed the District Court’s denial of habeas relief. Fairbank v.
Ayers, 650 F.3d 1243, 1257 (9th Cir. 2011). Finding that Plaintiff Fairbank’s trial counsel was not ineffective by making a strategic decision to not present certain mitigating evidence, this Court noted that such evidence would have opened up further avenues of introducing Plaintiff Fairbank’s other violent behavior and the
“heinous circumstances surrounding [Ms. Cheek’s] murder.” Id. at 1253, 1254.
Certiorari was denied. Fairbank v. Ayers, 565 U.S. 1276 (2012).
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5. Anthony John Sully
Gloria Fravel, Brenda Oakden, Michael Thomas, Phyllis Melendrez, Barbara
Searcy and Kathryn Barrett were all murdered by former police officer Anthony
John Sully (Plaintiff Sully). People v. Sully, 53 Cal.3d 1195, 1210 – 1215 (1991).
Gloria Fravel was brutally tortured and murdered by Plaintiff Sully in 1982 after he and two others forced Ms. Fravel into Plaintiff Sully’s warehouse. Id. at 1211. Over the course of a weekend Plaintiff Sully gagged and handcuffed Ms. Fravel and suspended her from the ceiling. Id. He later put her on a bed while she was bound and gagged. Id. Plaintiff Sully ultimately hanged Ms. Fravel with a noose, physical jerking on the rope from which she dangled until she voided herself. Id. He later hit her with a hatchet, as she had not yet died. Id. Plaintiff Sully found it humorous that Ms. Fravel’s body was found by a butcher. Id. at 1212.
Following Ms. Fravel’s murder, Plaintiff Sully set out to find a “new girl” to kill before anyone else “had her.” Id. He found Brenda Oakden, who was a roommate of the receptionist working at an escort service run by Plaintiff Sully’s co- participant. Id. Ms. Oakden was also led to Plaintiff Sully’s warehouse. Id. After the latter bragged to another about killing a prostitute and a pimp by forcing them to kneel and then shooting them in the head, the bodies of Ms. Oakden, Michael
Thomas and Phyllis Melendrez were all found in barrels in Golden Gate Park. Id.
All three had been shot in the back of the head. Id.
14
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Barbara Searcy had seen Plaintiff Sully on numerous occasions under circumstances consistent with prostitution. Id. at 1213. Plaintiff Sully told his co- participant that he wanted to obtain a recording he had left on Ms. Searcy’s answering machine and steal some of her property. Id. Plaintiff Sully displayed the body of Ms. Searcy to the co-participant, having wrapped her in a plastic sheet and discarding her into a hamper. Id. He revealed a plan to drag Ms. Searcy’s body behind his pickup truck so that she would be “beyond recognition.” Id. A witness caused Plaintiff Sully and his co-participant to abandon Ms. Searcy’s body in the attempt. Id. at 1213 – 1214. Plaintiff Sully later attempted to bribe a juvenile into
“tak[ing] the fall” for Searcy’s murder in exchange for $10,000. Id. at 1214.
Kathryn Barrett had offered to sell Plaintiff Sully six ounces of cocaine, and at his request, he and his co-participant met with Ms. Barrett at Plaintiff Sully’s warehouse. Id. The co-participant left and was later called by Plaintiff Sully and told that she need not pick up Ms. Barrett from the warehouse. Id. The co- participant returned and saw another co-participant stabbing Ms. Barrett. Not succumbing to the wounds, the second co-participant confided that he watched
Plaintiff Sully hit Ms. Barrett in the mouth with a sledgehammer. Id. Ms. Barrett’s nude body was found wrapped in plastic sheeting in San Francisco. Id. at 1215. She had extensive blunt force trauma to her head and stab wounds. Id.
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The jury convicted Plaintiff Sully of six first degree murders. Id. at 1210.
After hearing evidence of Plaintiff Sully’s violent beheading of pet ducklings belonging to his second wife’s child, threats to the child that he would cut her heart out, and other threats of violence, the jury returned a verdict of death, to which he was sentenced. Id. at 1210, 1215. Plaintiff Sully was prosecuted in San Mateo. Id. at 1236 – 1238.
The California Supreme Court found no reversible error in Plaintiff Sully’s case and affirmed the death judgment. Id. at 1253. The United States Supreme
Court denied certiorari. Sully v. California, 503 U.S. 944 (1992). This Court affirmed the District Court’s denial of his federal habeas petition, stating, “Faced with such extensive aggravating evidence, and considering the questionable mitigating value of Sully’s proffered evidence, fairminded jurists could conclude that there is no substantial likelihood that the additional evidence of Sully’s mental disorders would have altered the jury’s sentence.” Sully v. Ayers, 725 F.3d 1057,
1069 (9th Cir. 2013) (internal quotations omitted). Certiorari was denied. Sully v.
Ayers, __ U.S. __, 134 S.Ct. 2697 (2014).
///
///
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B. History of This Case
The underlying case before the District Court began when Plaintiff Michael
Morales (Plaintiff Morales) filed an action under 42 U.S.C. § 1983 on January 13,
2006, in which he contended that California’s then-existing death penalty protocol
“unnecessarily risks infliction of pain and suffering.” (ER 289). The Defendants named in that initial Complaint were the Secretary of the California Department of
Corrections and the Warden of San Quentin State Prison.2 (ER 288).
At the time of the filing of that Complaint, California used a three-drug execution protocol to perform executions. Morales v. Hickman, 415 F. Supp.2d
1037, 1039 (N.D. Cal. 2006). That protocol consisted of a barbiturate sedative to render the condemned unconscious, a paralytic agent, and finally potassium chloride to induce cardiac arrest. Id. The method was similar to that used in most other states in which the death penalty is administered. See Baze v. Rees, 553 U.S. 35, 44 (2008).
A conditional stay was placed on Morales’s execution, “permit[ting] Defendants to proceed with Plaintiff’s execution as scheduled by executing him with only barbiturates or by retaining the services of a qualified expert to ensure that Plaintiff would be unconscious when exposed to the painful drugs.” Morales v. Tilton, 465
F.Supp.2d 972, 975 (N.D. Cal. 2006). The California Department of Corrections
2 Changes in occupants of those offices have necessitated changes in the identities of the parties from time to time. The Governor of the State of California was added as a defendant in the Third Amended Complaint. (ER 265). 17
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and Rehabilitation (CDCR) was either unable or unwilling to comply with the conditions. Id. at 975 – 977. The District Court’s stay took effect. Id.
CDCR issued a new protocol on May 15, 2007. (ER 185). Rather than addressing the issues, CDCR chose to continue with the three-drug protocol. Id.
Plaintiff Morales filed an action in California’s Superior Court for the County of
Marin in which he claimed this protocol violated the California Administrative
Procedures Act (APA). Morales v. California Department of Corrections and
Rehabilitation, 168 Cal.App.4th 729, 732 (2008). The California Attorney General
(Attorney General) represented CDCR in the matter. Id. at 731. The Marin County court agreed with Plaintiff Morales and enjoined the use of CDCR’s protocol, which
Division 5 of California’s First District Court of Appeal affirmed. Id. at 741.
The California appellate court recognized that there were three other appellate cases that addressed the APA with regard to prison rules.3 Id. at 737 – 738. It chose not to follow those cases, relying instead on nonbinding, out-of-state authority that addressed a different administrative procedures act.4 Id. at 738 – 739. Despite this
3 In re Garcia, 67 Cal.App.4th 841(1998); Faunce v. Denton, 167 Cal.App.3d 191 (1985); and Stoneham v. Rushen, 137 Cal.App.3d 729 (1982).
4 Evans v. State, 396 Md. 256 (2006). 18
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ruling, with clear argument available contrary to the decision, the Attorney General neither sought rehearing nor review from the California Supreme Court.5
CDCR promulgated a new three-drug protocol under the APA, which the
California First District Court of Appeal found valid in an unpublished opinion.
Morales v. Cate, 623 F.3d 828, 830 (9th Cir. 2010). Consequently, the Riverside
County District Attorney’s Office obtained an execution date for Plaintiff Brown.
(ER 262). Brown successfully intervened in the underlying District Court action.
(ER 246). The District Court then conditionally granted a stay of execution, indicating a single-drug protocol would be permissible. Morales v. Cate at 830 –
831. This Court held this was not consistent with state law, and therefore was not permissible. Id. at 830.
On remand, the District Court stated that there was insufficient time to conduct the type of review as required by Baze “other than in a very preliminary way
. . ..” (ER 243). The court not only stayed Plaintiff Brown’s execution, but also ordered “all proceedings related to the execution of [Plaintiff Brown’s] sentence of death, including but not limited to preparations for an execution and the setting of an execution date, are hereby stayed.” (ER 245).
5 Docket of Morales v. California Department of Corrections, case # A120115, California First Appellate District, Division 5 (2008), http://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=1&doc_id=119594 3&doc_no=A120115&request_token=NiIwLSIkXkw6W1BFSSFdVENIMEQ6UVxfISJeQz tSICAgCg%3D%3D. 19
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Attorneys for both sides signed a joint scheduling agreement on July 16, 2012.
(ER 165 – 168). In that agreement, the parties essentially expressed a desire to delay further action until a protocol viable under state law was put in place. (ER 165 –
168).
Plaintiff Brown successfully intervened in the case on September 24, 2010.
(ER 255 – 256). The District Court permitted Plaintiff Fairbank to intervene on
November 21, 2012. (ER 164). Plaintiff Cooper successfully intervened on June
19, 2013. (ER 158). Plaintiffs Deere and Sully were allowed to intervene on April
18, 2017. (ER 154). More than twenty death-row inmates have intervened in the case since its inception, and two more have filed motions to intervene following the
District Court’s denial of the motions at issue in this appeal.6
In September 2014, Bradley Winchell (brother of Terri Winchell, who was kidnapped, raped and murdered by Plaintiff Morales) and Kermit Alexander (whose mother, sister and two nephews were murdered by Plaintiff Tiquon Cox) petitioned for writ of mandate in the Sacramento Superior Court to compel CDCR to promulgate lethal injection regulations.7 CDCR responded, arguing that the victims’
6 One of these latter two potential intervening plaintiffs is Guy Rowland, (ER 12 - 34), whose underlying criminal case arose from San Mateo County. People v. Rowland, 4 Cal.4th 238 (1992). The other, Tracy Cain, was prosecuted in a county other than those represented by the District Attorneys here.
7 California Department of Corrections and Rehabilitation, Relatives of Murder Victims Seek to End Execution Delays, The History of Capital Punishment in 20
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family members lacked legal standing, and that CDCR had complete discretion over how and when to develop lethal injection regulations. See fn. 7, supra. The trial court overruled CDCR’s demurrer and the parties settled with an agreement for
CDCR to begin the APA process for a new protocol after the United States Supreme
Court ruled in Glossip v. Gross, 576 U.S. __, 135 S.Ct. 2726 (2015). California’s
Office of Administrative Law disapproved the submitted protocol based on the
APA.8 (ER 146 – 147).
The People of the State of California passed Proposition 66 in November
2016. Briggs v. Brown, 3 Cal.5th 808, 822 (2017). Included in the initiative was the exemption of execution protocols from the APA. Id. at 831. The California Supreme
Court’s hearing of Briggs, and a subsequent petition for rehearing, delayed the effective date of the proposition until October 25, 2017. Id. at 861 – 862.
On January 25, 2018, Kermit Alexander filed a motion in Marin County
Superior Court to lift the injunction against executions in Sims v. California
Department of Corrections and Rehabilitation, Court Case No. 1004019. On April
California (November 18, 2018, 5:04 PM), https://www.cdcr.ca.gov/Capital_Punishment/history_of_capital_punishment.html.
8 Mr. Winchell and Mr. Alexander have sought leave to file a brief before the District Court as amicus curiæ relating to Rowland’s attempt to intervene and addressing some of the issues of concern to the District Attorneys. Proposed intervenor Plaintiff Rowland has filed an opposition. These documents do not appear to pertain to the issues before this Court, and so are not included in the Excerpts of Record. They are mentioned in an effort to be current and complete. 21
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9, 2018, the Honorable Roy O. Chernus of the Marin County Superior Court granted the motion and vacated the stay order previously enjoining CDCR from conducting executions.9
On March 1, 2018, the California Office of Administrative Law filed CDCR’s revised regulations for the implementation of the death penalty with the California
Secretary of State. (ER 56 - 117). The protocol calls for the use of lethal injection or the use of lethal gas. Id. (15 Cal. Reg. § 3349(a)). Lethal injection would be accomplished by the use of one drug, a barbiturate. Id. (15 Cal. Reg. §3349.1(i)).
This election is to be made by the condemned inmate. Id. (15 Cal. Reg. § 3349(a)).
On June 26, 2018, the District Attorney of San Bernardino sought to intervene in the underlying action, contending that the Attorney General’s participation in the case was insufficient to represent the interests of the District Attorney pertaining to
Plaintiff Cooper, and seeking a voice to resolve the merits of the ongoing stays of execution in light of changes in California law. On July 5, 2018, the District
Attorneys of Riverside and San Mateo similarly moved to intervene. On July 10,
2018, Plaintiffs Morales, Brown, Cooper, Deere and Sully (among others) filed a
9 Plaintiff Mitchell Sims and Plaintiff Morales have a current state appeal related to this litigation in Sims, et al. v. Kernan [presumably now Diaz], et al., case number A151732. The case is set for oral argument before California’s First District Court of Appeal on December 4, 2018.
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joint opposition to the intervention motions.10 In addition, Plaintiff Cooper filed a separate opposition. On July 17, 2018, the District Attorney of San Bernardino filed a reply. On July 18, 2018, before the lapse of time in which the District Attorneys of Riverside and San Mateo would be permitted to file a reply,11 the District Court issued its order denying the intervention of the District Attorneys. (ER 1 – 11).
On October 29, 2018, the parties filed a joint litigation schedule in which the filing of a Fifth Amended Complaint (presumably addressing the changes in
California’s death penalty protocol) was contemplated, but the timing of which was the subject of disagreement. (ER 36 – 37). The District Court issued an order setting a briefing schedule on October 30, 2018. (ER 35). Pursuant to that schedule,
Plaintiffs are to file an amended complaint by February 27, 2019. (ER 35). The schedule for any motions to dismiss, a subject addressed by the District Attorneys in their motions to intervene, puts any resolution for the areas of the District Attorneys’ concern no earlier than a year after the District Attorneys’ intervention attempts.
(ER 35).
10 Plaintiff Fairbank did not join in the opposition to the District Attorneys’ motions.
11 N.D. Cal. Civ. R. 7-3(a) calls for opposition briefs to be filed and served not more than 14 days after the motion was filed. N.D. Cal. Civ. R. 7-3(c) states that a reply to an opposition must be filed and served no more than 7 days after the opposition was due. Consequently, the District Attorneys of Riverside and San Mateo would have had until July 26, 2018, to file a reply. 23
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V. SUMMARY OF ARGUMENT
The People of the State of California suffered horrific deeds at the hands of the Plaintiffs in the underlying matter. The loss of life exacted a terrible toll on both their victims and the fabric of the communities in which they chose to shed blood.
Through the District Attorneys now before this Court, the People engaged in the process by which some measure of justice might be obtained for the very worst of crimes. The death judgments against the Plaintiffs culminated not merely from the trials themselves, but from years, or more appropriately, decades of post-conviction litigation. Each Plaintiff has had every opportunity to raise issues for review many times before many courts, including this one.
When it became apparent that the death penalty process in California required reform to bring resolution to these worst of cases, the People acted by passing
Proposition 66. The referendum modified both the process of litigation and the death penalty protocol itself. The California Supreme Court approved of the referendum just under a year after its passage.
Despite satisfying every level of process to ensure a just outcome for each criminal case, the death judgments against Plaintiffs remain frustrated by the underlying litigation. While the Attorney General is involved in that litigation, he does not appear in the same capacity as he did in the criminal appellate process for each of Plaintiffs’ cases. Here his involvement is as counsel to various state
24
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executive officers related to their ministerial roles, rather than as California’s top prosecutor. The interests of those officers differ from the interest of the People, and consequently, the People’s interests in ensuring the criminal judgments are satisfied remain unrepresented in the underlying litigation.
The District Attorneys sought to remedy this void as soon as it became apparent that the Attorney General’s choices related to the litigation would not effectively draw the litigation to a close by moving to intervene. The District Court erred in denying this intervention by failing to recognize the role of the Attorney
General in this capacity and how it differs from that of the District Attorneys. The
District Court failed to account for the Attorney General as an independently-elected official with prosecutorial duties of his own, rather than merely serving as a counselor to the executive officers here. And since that former role is absent from the underlying litigation, the voice of the People who obtained the death judgments must be permitted to participate.
The cost of the Plaintiffs’ crimes to the People of the State of California is immeasurable. A silencing of their voice by a lack of inclusion puts the confidence of all process in question. The District Court’s decision to deny intervention to the
District Attorneys must be reversed so that voice may be heard.
///
///
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VI. ARGUMENT
A. Intervention by Right
The District Court’s denial of the District Attorneys’ motions to intervene focused primarily on the nature of the representation of interests in the underlying litigation. While correctly finding that the District Attorneys’ motions were timely in light of the change in California law, (ER 4) and that the death judgments at issue were indeed a significantly protectable interest, (ER 4 – 6), the District Court erred by concluding that the Attorney General’s participation in the case provided adequate representation of those interests. (ER 8 – 9). This error stems primarily from the absence of acknowledgment that the Attorney General wears multiple hats in his official capacity. In some instances he acts as California’s top prosecutor. In others he provides representation to executive officers acting within their official capacities. While the latter is certainly the case in the underlying litigation, the former is absent from the proceedings.
Although the District Court’s error is specific to one part of the analysis of intervention by right, this Court’s review of the issue is de novo. Evans v. United
States Department of Interior, 640 F.3d 1120, 1121 (9th Cir 2010). Therefore, the
District Attorneys address each of the components of the issue below, stemming from the four-part test for intervention by right under Federal Rule of Civil
Procedure 24(a)(2). That test is that:
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(1) the motion must be timely; (2) the applicant must claim a “significantly protectable interesting 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 Society v. United States Forest Service, 630 F.3d 1173, 1177 (9th. Cir.
2011), quoting Sierra Club v. United States Equal Protection Agency, 995 F.2d
1478, 1481 (9th Cir. 1993).12 Rule 24(a)(2) is to be interpreted “broadly in favor of proposed intervenors.” Wilderness Society at 1179 (quoting United States v. City of
Los Angeles, 288 F.3d 391, 397 (9th Cir. 2002)).
1. Timeliness
Timeliness is a natural concern for this Court relating to the District
Attorneys’ motions to intervene. It is unquestionably a threshold question. National
Association for the Advancement of Colored People v. New York, 413 U.S. 345, 365
(1973) (NAACP). As the District Court acknowledged, the change in California Law following the passage and acceptance of Proposition 66 meant that the District
Attorneys’ motions were timely. (ER 4). But it is important to examine the question of timeliness based on a totality of the circumstances. NAACP at 366. Things to be considered include the stage of the proceedings, the prejudice to other parties, and
12 Wilderness Society abrogated Sierra Club to the extent that the latter imposed a categorical prohibition against intervention under an act not germane to the issues before this Court. Wilderness Society at 1180. 27
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the reason and length of the delay. Smith v. Los Angeles United School District, 830
F.3d 843, 854 (9th Cir. 2016), citing United States v. Alisal Water Corporation, 370
F.3d 915, 921 (9th Cir. 2004). Furthermore, “[w]here a change in circumstances occurs, and that change is the “major reason” for the motion to intervene, the stage of the proceedings factor should be analyzed by reference to the change in circumstances, and not the commencement of litigation.” Smith at 854, citing United
States v. State of Oregon, 745 F.2d 550, 552 (9th Cir. 1984).
The underlying action in the District Court began in 2006. Although more than 12 years have lapsed since the commencement of this litigation, the history of the case demonstrates that the dynamics and issues have changed significantly over the course of time. Most significant to the District Attorneys’ motions is the passage of Proposition 66, which went into effect on October 25, 2017, following the
California Supreme Court’s review of the proposition in Briggs v. Brown, 3 Cal.5th
808 (2017). Proposition 66’s sweeping alteration of the landscape of capital punishment in California changed the nature of the issues before the District Court.
Since CDCR implemented a one-drug protocol as a result of Proposition 66 in March of this year, (ER 56), the operative facts under which the District Court imposed it stays of the implementation of the death penalty upon Plaintiffs no longer
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exist.13 The factual universe as contemplated by the District Court and the parties for the previous twelve years evaporated as a result of the passage of Proposition 66 and subsequent executive action.
Further, the state court stay of executions in Marin County under Sims v.
California Department of Corrections and Rehabilitation, Court Case No. 1004019 no longer serves as an impediment of the death penalty in California. Prior to the filing of the motions to intervene by the District Attorneys, the Defendants, via the
Attorney General, had given no indication that they would seek a resolution of the case based on those factors, as no motion to dismiss the action had been forthcoming.
Although the current joint statement of litigation indicates that there is thought to bringing such a motion, at least within the Plaintiffs’ portion of the statement, (ER
41), and the District Court’s briefing schedule has a timetable that would apply, (ER
35), there is no guarantee that the issue of the change in California law will actually be addressed. Given the absence of such action at the time of the District Attorneys’ intervention motions, it is clear the District Attorneys acted promptly to intervene in the matter. The stage of the proceedings, when viewed from the change of circumstances by the effective date of Proposition 66, is early. The reason for any
13 See, e.g., the various orders permitting the intervention of the Plaintiffs at issue here, and staying their executions. (ER 246 – 256, 159 – 164, 155 – 158, and 151 – 154). 29
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delay is not an issue, as there has simply been no delay following the development of changes in the legal landscape.
Turning to the question of potential prejudice to the existing parties, “[t]he question for determining the timeliness of the motion to intervene is whether existing parties may be prejudiced by the delay in moving to intervene, not whether the intervention itself will cause the nature, duration, or disposition of the lawsuit to change.” United States v. Union Electric Company, 64 F.3d 1152, 1159 (8th Cir.
1995). Viewing the case from a point in time at which the current facts weighing in the analysis came into being, it is difficult to discern how the District Attorneys’ motions to intervene would now prejudice the parties in relation to those facts. There has been no substantial passage of time, and little litigation since the implementation of Proposition 66 other than that which addressed intervention by additional
Plaintiffs.
Delay, if any, by the District Attorneys pales in comparison to the delay of numerous intervening Plaintiffs in this case, including two pending motions to intervene following the District Court’s denial of the District Attorneys’ motions.
See, e.g., (ER 12 – 34). Plaintiff Cooper, for example, did not move to intervene in this action until four years after the Supreme Court denied certiorari on the denial of his most recent federal habeas petition.
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Based on the totality of the circumstances here, the District Court correctly concluded that the District Attorneys acted in a timely fashion to seek intervention.
2. Protectable Interest and Impairment
The District Attorneys have a significantly protectable interest as required
“when ‘the interest is protectable under some law, and . . . there is a relationship between the legally protected interest and the claims at issue.’” Arakaki v. Cayetano,
324 F.3d 1078, 1084 (9th Cir. 2003), quoting Sierra Club at 1484. In the instance of a state official, such as the District Attorneys, that official “has a sufficient interest in adjudications which will directly affect his own duties and powers under state laws.” Blake v. Pallan, 554 F.2d 947, 953 (9th Cir. 1977). Some jurisdictions adopt an even more lenient view toward intervention if the case involves a public interest.
See, e.g., Brumfield v. Dodd, 749 F.3d 339, 344 (5th Cir. 2014).14
It is true that a state official with a general interest in a legal question is not a scenario sufficient to support intervention. See, e.g., People of the State of
California ex rel. Van de Kamp v. Tahoe Regional Planning Agency, 792 F.2d 779,
782 (9th Cir. 1986). By contrast, where there is a specific interest held by a government entity, intervention is proper. For example, a commission tasked with management of a scenic area had an interest in the valuation of property that the
14 The District Attorneys have not thus far located any Ninth Circuit authority that addresses this aspect of Brumfield. 31
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United States Forest Service sought to acquire for the area. Stevenson v. Rominger,
905 F.Supp 836, 838, 842 – 843 (E.D. Wash. 1995).
There is no clear definition of a protectable interest. Blake v. Pallan, 554 F.2d
947, 952 (9th Cir. 1977). It need not be a “specific legal or equitable interest.”
Fresno County v. Andrus, 622 F.2d 436, 438 (9th Cir. 1980). “We agree with the
D.C. Circuit that ‘the “interest’” test is primarily a practical guide to disposing of lawsuits by involving as many apparently concerned persons as is compatible with efficiency and due process.” Id. citing Nuesse v. Camp, 385 F.2d 694, 700 (D.C.
Cir. 1967).
The District Attorneys are public prosecutors, whose offices are established to “conduct on behalf of the people all prosecutions for public offenses” under
California state law. Cal. Gov’t Code § 26500. The office is a constitutional one under state law. Cal. Const. art. XI, § 1(b). The public prosecutor has “sole discretion to determine whom to charge, what charges to file and pursue, and what punishment to seek.” Dix v. Superior Court, 53 Cal.3d 442, 451 (1991). The District
Attorneys therefore have a vested interest in the underlying litigation, which prevents that very punishment from being enforced.
The District Court correctly recognized the very real interest at question here, noting that the “United States Supreme Court repeatedly has addressed the importance of a ‘State’s significant interest in enforcing its criminal judgments.’”
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(ER 5), citing Nelson v. Campbell, 541 U.S. 637, 650 (2004). Indeed, the District
Court saw that a state’s interest in a death judgment was strong, and pointed to a case in which the United States Supreme Court noted a habeas petitioner’s manipulative actions in delaying that judgment in Gomez v. United States District
Court for the Northern District of California, 503 U.S. 653, 654 (1992). (ER 5).
The real question thus becomes the participation of the Attorney General in the litigation. Although he is a participant in the underlying action, there is nothing about that participation that precludes the District Attorneys from intervening to protect the interests of the People of the State of California. The California
Constitution makes reference to the Attorney General acting in a supervisory capacity over elected district attorneys. Cal. Const. art. V, § 13. Supervision, however, “does not contemplate control, . . . and district attorneys cannot avoid or escape their duties and responsibilities of the respective offices by permitting a substitution of judgment.” People v. Brophy, 49 Cal.App.2d 15, 28 (1942). The constitutional provision does not permit the Attorney General to dictate policy to a district attorney. Goldstein v. City of Long Beach, 715 F.3d 750, 756 (9th Cir. 2013).
And nothing about it permits the Attorney General to usurp a district attorney’s authority and place him or her under the Attorney General’s control. Id.
Although the Attorney General has been traditionally responsible for defending a capital judgment on appeal and habeas corpus, jurisdiction returns to the
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trial court once the judgment has been affirmed.15 Cal. Penal Code § 1265(a). When the judgment is one calling for the death penalty, it is the district attorney who may make application with the trial court for the setting of an execution date. Cal. Penal
Code § 1227(a). Thus, it is the district attorney who holds the interest in the judgment at the final stage of a capital case (a stage at which all Plaintiffs sit), not the Attorney General. It is upon the District Attorneys to vindicate the interests of the state and victims, an interest that the Supreme Court recognizes is an “important” one. Hill v. McDonough, 547 U.S. 573, 583 – 584 (2006). The victims of crime16 have a right in California to a prompt and final conclusion in capital cases. Cal.
Penal Code § 190.6(d).
15 The traditional role of the Attorney General with regard to capital habeas has been further eroded with the enactment of Proposition 66. As Cal. Penal Code § 1509(a) was added by the proposition to make initial filing of a state petition for habeas corpus in the trial court, the Attorney General has informed the district attorneys that the latter will be responsible for responding to those petitions. Prior to the enactment of the proposition, it was the Attorney General who represented the People on state habeas, which was held before the California Supreme Court.
16 In this context, a victim “is person who suffers direct or threatened physical, psychological, or financial harm as a result of the commission . . . of a crime . . .. The term ‘victim’ also includes the person’s spouse, parents, children, siblings, or guardian, and includes a lawful representative of a crime victim who is deceased, a minor, or physically or psychologically incapacitated.” Cal. Const. art. I, § 28(e). The surviving family members of the Plaintiffs’ victims, including Joshua Ryen who was himself a direct victim, are most assuredly also victims of the Plaintiffs. 34
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The District Court’s stays prevent the District Attorneys from fulfilling their duties. The District Attorneys therefore have a specific, protectable interest in the underlying litigation, and that interest is unquestionably being impaired.
3. Representation
The crux of the District Court’s ruling against the District Attorneys on the issue of intervention turned upon the question of adequate representation of the interests by the Attorney General. (ER 6 – 9). Federal Rule of Civil Procedure
24(a)(2) intervention considers whether the interest expressed is not already sufficiently present. “The requirement of the Rule is satisfied if the applicant shows that representation of his interest ‘may be’ inadequate; and the burden of making that showing should be treated as minimal.” Trbovich v. United Mine Workers, 404
U.S. 528, 538, fn. 10 (1972). The District Attorneys’ interests here as representatives of the People of the State of California are not before the District
Court at all.
The People of the State of California, as the plaintiff in the underlying criminal cases from which the judgments of death were obtained, is the real party in interest.
Cal. Penal Code § 684. By contrast, CDCR is the agency charged with the duty of carrying out the judgments. Cal. Penal Code § 3600. In the criminal actions, the executing agency is not a party, is not represented in the action, and has no interest.
When, as here, the execution of the judgments has been enjoined, CDCR loses
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nothing. The People, on the other hand, are being prevented from execution of the judgments that belong to them. These interests do not align.
The Attorney General does not appear before the District Court as a representative of the People of the State of California. Rather, the Attorney General is acting as civil counsel for Defendants, none of whom acted to prosecute Plaintiffs’ criminal actions. From Defendants’ actions in this case, or lack thereof, Defendants have displayed a lack of interest in bringing this litigation to a conclusion.
Defendants have failed to pursue any course of action that would permit them to fulfill their duties and bring about the executions of Plaintiffs.17
When the District Court held that a three-drug protocol would be enjoined, but that executions could proceed with the use of a single drug, CDCR twice promulgated new three-drug protocols instead. (ER 185) and Morales v. California
Department of Corrections and Rehabilitation, 168 Cal.App.4th 729, 732 (2008).
CDCR failed to seek review by the California Supreme Court of the decision in
Morales, despite having authority from other district courts of appeal that appeared to represent a split of opinion, and despite the fact that such a split would provide an excellent likelihood of review. “The Supreme Court may order review of a Court of
17 In Defendants’ response to the District Attorneys’ intervention motions in the District Court, they indicated that they would indeed be pursuing dismissal of the actions as the District Attorneys seek. But this has not yet occurred, nor is there anything that prevents them from changing their minds. 36
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Appeal decision . . . [w]hen necessary to secure uniformity of decision or to settle an important question of law . . .. Cal. R. Ct. 8.500(b) & (b)(1).
Four years ago CDCR represented to the District Court that it could carry out a single-drug execution. (ER 258 – 259). Two and a half years ago the state court injunction against CDCR’s last attempt was affirmed on appeal. Yet still CDCR actively resisted making changes that could permit it to carry out its duty, actively fighting against a petition by victims’ families to promulgate a new protocol. When the families sought to pursue a writ of mandate to compel compliance with
Defendants’ duties, CDCR jealously sought to protect its realm of influence over the method of execution.18 That hoarding of discretion over the method of execution speaks volumes as to whether the interests of the People of the State of California are represented in the underlying action. Clearly, they are not.
The Attorney General has properly argued in the past to the District Court that the stays are moot, and that the stays are overbroad and inconsistent with the Prison
Litigation Reform Act (PLRA)19 and recent Supreme Court precedence in Baze v.
Rees, 553 U.S. 35 (2008) and Glossip v. Gross, 576 U.S. __, 135 S.Ct. 2726 (2015).
(ER 124 – 145). But when the District Court rejected those arguments, Defendants
18 See fn. 7, supra.
19 18 U.S.C. § 3626. 37
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did not seek any review despite the question of the PLRA remaining unanswered, and the applicability of Baze and Glossip being summarily dismissed. (ER 122).
While the Attorney General is California’s chief law enforcement officer, Cal.
Const. art V., § 13, he is not acting in that capacity before the District Court. On the contrary, he is merely serving as civil counsel to Defendants, and cedes litigation decision-making to them20 in a way that is contrary to representing the interests of the People of the State of California and the victims. Moreover, the question of representation of interests as contemplated by Fed. R. Civ. P. 24(a)(2) speaks to parties, not counsel. See, e..g., Ararkaki v. Cayetano, 324 F.3d 1078, 1086 (9th Cir.
2003).
The desire for expeditious resolution of litigation is a proper area of interest for consideration when analyzing the interests of the parties versus the interests of the applicant for intervention. United States v. American Telephone and Telegraph
Co., 642 F.2d 1285, 1293 – 1294 (D.C. Cir 1980). The District Attorneys have a strong interest in expediting the executions of Plaintiffs, since decades have passed since the District Attorneys obtained the death judgments against them, and since all of Plaintiffs’ avenues of review have long since been exhausted. Based on their choices before the District Court, Defendants clearly do not share that interest.
20 The decision of whether or not to pursue an appeal is that of a client, rather than the attorney. Florida v. Nixon, 543 U.S. 175, 187 (2004). 38
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Important factors assessing the adequacy of representation include “whether the [existing party] will undoubtedly make all of the intervenor’s arguments, whether the [existing party] is capable of and willing to make such arguments, and whether the intervenor offers a necessary element to proceedings that would be neglected.”
Sagebrush Rebellion, Inc. v. Watt, 713 F.2d 525, 528 (9th Cir. 1983). The District
Attorneys contend from the District Court’s record that the Defendants have not made all arguments.
In its denial, the District Court focused its attention on the Attorney General’s position as “the highest non-judicial legal officer of California, and [he] is particularly charged with the duty of supervising the administration of criminal laws.” Phyle v. Duffy, 334 U.S. 431, 441 (1948). (ER 6). The District Court further focused on the supervisory role of the District Attorneys from the California
Constitution, as addressed in VI(A)(2), above. (ER 7). But what the District Court did not address is that the Attorney General has multiple roles. While in some instances he is a representative of the People of the State of California in criminal proceedings, Cal. Const. art V, § 13, he also acts in a civil capacity in many circumstances. He represents the state (as opposed to the People) in most legal matters, Cal. Gov’t Code § 12511, and oversees a panoply of subjects ranging from health care, Cal. Gov’t Code § 12511.5, to defense of the Legislature, Cal. Gov’t
Code § 12511.7, to property interests, Cal. Gov’t Code § 12518. In the current
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litigation, he is not acting in his capacity as the top prosecutor in the state, but rather as civil counsel to those who are tasked with ministerial duties in connection with executions. Even if he were appearing here as a prosecutor, and thus representing the interests of the People of the State of California, conflict could easily arise that would force him to choose between one role or the other where, as here, that ministerial role of the executives has not been fulfilled. How could he advocate both sides if there is tension between them, as exists in the underlying action?
The answer here is that Attorney General simply does not play the role in this litigation as the District Court ascribed to him. There is nothing in the record of this case indicating that any member of his office has ever made an appearance on behalf of the People of the State of California. Every appearance pertains to the representation of the various executives who are Defendants in the case. The voice of the People who obtained the death judgments in the criminal cases, is therefore being silenced and lost in years of protracted litigation.
B. Permissive Intervention
As indicated in III, above, the curious state of the review of permissive intervention in this circuit requires the Court to address the merits of the issue to determine whether it has jurisdiction to hear an appeal of it. League of United Latin
American Citizens v. Wilson, 131 F.3d 1297, 1307 – 1308 (9th Cir. 1997). While intervention by right is most clearly implicated by the facts here, permissive
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intervention is also appropriate since the District Attorneys “[have] a claim or defense that shares with the main action a common question of law or fact.” Fed. R.
Civ. P. 24(b)(1)(B). And although the District Attorneys possess such an interest, permissive intervention does not require that the applicant have a direct personal interest in the subject of the litigation. Securities and Exchange Commission v.
United States Realty & Improvement Co., 310 U.S. 434, 459 (1940).
Should the role of the Attorney General within the action before the District
Court lack sufficient clarity to determine exactly what interests he represents, permissive intervention would be the appropriate path to ensure that the interests of the People of the State of California are fully represented in the litigation. As long as no member of the Attorney General’s office has appeared to represent those interests, it stands to reason that at no point in the 12-year history of the case has the party obtaining the judgments against Plaintiffs been able to speak to the merits of the issues which have languished for so long. With this track record, it was therefore an abuse of the District Court’s discretion for it to deny permissive intervention.
The District Court found that, if it permitted the District Attorneys to intervene, it could face further intervention by every other district attorney’s office in the State of California. (ER 9 – 10). This would be true only if the District Court continued to allow unending interventions by new Plaintiffs, and the delay
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envisioned by the District Court as to permissive intervention would be more attributable to their participation than that of the district attorneys.
It is difficult to determine how the participation of the District Attorneys in this case could slow the progress of the underlying action more than that which has already occurred. (ER 10). While the District Court noted that the case concerns the implementation of the death penalty, and not the wisdom of it, (ER 10), the history of the case demonstrates that legal questions and avenues of thought that could have resolved the case by now have not been pursued. In their motions to intervene, the District Attorneys raised those arguments that remain unaddressed, and based upon the ordered briefing schedule, will remain unaddressed for months to come. (ER 35).
VII. COCNCLUSION AND SUMMARY OF REQUESTED RELIEF
The People of the State of California obtained death verdicts against each of the Plaintiffs in the underlying action, and for twelve years have watched as ceaseless and plodding litigation stymied enforcement of those verdicts. A full year after the effectiveness of Proposition 66 has passed and there has been no effort to date by Plaintiffs to amend their complaining document to conform to that change in the law. Despite the mootness of their claims, challenges to the continuation of the action have not been pursued in a manner to ensure a swift resolution. Only now,
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months after the District Attorneys’ motions to intervene is there a hint that such issues might be addressed.
Fundamental fairness to the victims and families who have suffered for three decades compels the inclusion of the voice of the People in the litigation. The blood of fifteen victims, wrought from them by the Plaintiffs’ crimes, acts as the most compelling of all interests to be permitted to participate in the case. And while that blood has long since evaporated, the scars that are left behind have not.
The District Attorneys therefore respectfully request that this Court order the
District Court’s order denying intervention be vacated, and that the Court remand the matter with instruction to permit intervention.
VIII. CERTIFICATE OF COMPLIANCE
We certify that this brief complies with the type-volume limitations set forth in Rule 32(a)(7)(B)(i) of the Federal Rules of Appellate Procedure, and Ninth Circuit
Rule 32-1(a). This brief uses a proportional typeface and 14-point font, and contains
11,761 words.
///
///
///
///
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IX. STATEMENT OF RELATED CASES
The District Attorneys are not aware of any cases pending in this Court that would be deemed related pursuant to Ninth Circuit Rule 28-2.6.
DATED: November 21, 2018 Respectfully submitted,
MICHAEL A. RAMOS MICHAEL A. HESTRIN STEPHEN M. District Attorney District Attorney WAGSTAFFE Robert P. Brown Ivy B. Fitzpatrick Stephen Robert P. Brown Ivy B. Fitzpatrick M. Wagstaffe Chief Deputy Managing Deputy District Attorney District Attorney District Attorney COUNTY OF James R. Secord COUNTY OF RIVERSIDE SAN MATEO Deputy District Attorney COUNTY OF SAN BERNARDINO Attorneys for Appellants District Attorneys’ Offices of San Bernardino, Riverside and San Mateo Counties
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9th Circuit Case Number(s) 18-6547
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