Metropolitan News-Enterprise


Friday, September 17, 2021


Page 1


Ninth Circuit:

D.A.s Can’t Intervene in Challenge to Execution Protocol

Majority: Prosecutors Have No ‘Significant Protectible Interest’ in Having Death Sentences Carried Out;

Dissent: Intervention Is Necessary If Popular Will in Favor of Capital Punishment Is to Be Given a Voice


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals, in a 2-1 decision, yesterday affirmed the denial of a motion by the district attorneys of San Bernardino, San Mateo, and Riverside Counties to intervene as defendants in an action by death row inmates challenging the constitutionality of executions as carried out in California.

Members of the panel agreed unanimously, contrary to the view of the parties, that the controversy was not rendered moot by virtue of the moratorium on executions proclaimed by Gov. Gavin Newsom.

Authoring the majority opinion was Judge William A. Fletcher. Judge Danielle J. Forrest concurred in the result, but expressed disagreement with one basis Fletcher set forth for finding that the case is not moot.

Judge Lawrence VanDyke dissented, arguing that—in light of opposition to capital punishment on the part of Newsom and Attorney General Rob Bonta—somebody needs to be the voice of the People in standing up for effectuation of Proposition 66, approved at the polls in 2016. That initiative, approved by 51.13 percent of the vote, was aimed at speeding up executions by streamlining legal challenges to death sentences.

Right to Intervene

Fletcher pointed to a judicially created four-point test for determining if there is a right to intervene:

“(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.”

The judge wrote:

“[W[e conclude that the District Attorneys have failed to show that they have a significant protectable interest in the litigation. Because that failure alone is a sufficient ground to deny intervention as of right, we do not reach the question of whether the District Attorneys have failed to show that their interest is inadequately represented by the existing parties.”

‘Sole Discretion’


He explained:

“The District Attorneys…argue that because they have the ‘sole discretion’ to charge and seek punishment, they have an interest in the plaintiffs’ litigation. The flaw in their argument is that neither their ability to charge nor their ability to seek punishment is at issue in this case. The issue before the district court was not whether it was legal for the District Attorneys to charge defendants with capital crimes. Nor was the issue the legality of any capital conviction and sentence the District Attorneys have obtained. Rather, the issue was the constitutionality of California’s method of execution. This important but narrow issue does not substantially affect the District Attorneys in the exercise of their ‘sole discretion to determine whom to charge, what charges to file and pursue, and what punishment to seek.’ ” California’s Government Code specifies the sorts of civil cases that are entrusted to district attorneys, Fletcher pointed out, noting that litigation over the constitutionality of the state’s execution protocol does not fit under any of the categories.

“The District Attorneys have neither the authority to choose a method of execution, nor the authority to represent the state entity that makes that choice,” he said.

Fletcher also declared that District Court Judge Richard Seeborg of the Northern District of California did not abuse his discretion in denting permissive intervention.

VanDyke’s Dissent

VanDyke said in his dissent:

“Even the casual observer would recognize that the District Attorneys seeking to intervene in this suit and the California Attorney General have very different ultimate objectives. The District Attorneys would uphold and seek to help enforce Proposition 66 to retain the death penalty—on which a majority of the voters of California voted ‘Yes’—while the Attorney General must defend the Governor’s contrary executive order instituting a moratorium on death penalty executions. Based on these divergent—indeed, opposed—interests and the applicable law, I would reverse the denial of the District Attorneys’ intervention in this case.”

The jurist went on to say:

“Allowing intervention would ensure the District Attorneys could represent their (and the People’s) interests in effectuating Proposition 66. The District Attorneys’ motion to intervene is meritorious because it satisfies the Rule 24(a)(2) four-part test’s requirements that the Governor and his counsel do not adequately represent the District Attorneys’ interest in commencing executions, and the District Attorneys have multiple significantly protectable statutory interests in carrying out death penalty sentences. I would reverse the district court’s denial of the District Attorneys’ motion to intervene as of right.”

Seeborg’s Rationale

In his July 18, 2018 order denying intervention, Seeborg said:

“As defendants note, ‘mere [ ] differences in [litigation] strategy...are not enough to justify intervention as a matter of right.’…The would-be interveners do suggest that current defendants have not made all arguments available…. “Because a dispute about trial tactics is an insufficient basis on which to support a finding that the current defendants cannot adequately represent the interests of the would-be interveners and because the law presumes that the current defendant provides adequate representation, the District Attorneys also have not met their burden under this prong of the evaluation.”

Rejecting that reasoning, VanDyke wrote:

“It’s flirting with absurdity to characterize, as the district court did in denying intervention, the disagreement between the District Attorneys and the Attorney General as ‘mere differences in litigation strategy.’…The Attorney General’s entire litigation strategy for the past few years has operated to block the District Attorneys’ involvement in the case, precisely because they have very divergent interests.”

In a footnote, he set forth why intervention is necessary if a case for carrying out death sentences is to be heard:

“If not the District Attorneys, then who else? The victims of the murders perpetrated by the inmates in the underlying litigation would likely not have standing to enforce the executions and the District Attorneys are the only entities pursuing those victims’ interests.”

Case Not Moot

In explaining the panel’s denial of an initial motion to dismiss for mootness, Fletcher said: “Nothing prevents Governor Newsom, or a future Governor, from withdrawing the Executive Order and proceeding with preparations for executions. It is thus entirely possible that in the future, defendants will seek to resume executions in California, and will seek to do so under the current or a successor protocol. This is not a case where ‘the challenged conduct cannot reasonably be expected to start up again.’ ”

A second motion was based on a stipulated dismissal in the District Court. The stipulation provides, however, that the action would be revived if “(1) the Executive Order becomes inoperative, or is no longer in effect, or is withdrawn; or (2) Defendants have adopted an execution protocol; or (3) a District Attorney, court, or other state representative notices or moves for a date to set an execution for any death sentenced prisoner.”

Fletcher provided this analysis:

“On two independently sufficient grounds, the parties’ stipulation does not render the appeal moot. First…, this suit may be revived upon the occurrence of any of the three events specified in the Reinstatement Stipulation. The stipulated voluntary dismissal thus effectively functions as a stay….

“Second, even if the suit is not revived upon the occurrence of any of the three events, if we hear the current appeal and reverse the district court’s denial of intervention, the District Attorneys can move in the district court…to seek relief from the order of dismissal that was entered pursuant to the stipulation.”

Forrest (formerly “Hunsaker”) said in a separate opinion:

“I join the majority opinion except its alternative holding that this case is not moot because the parties’ settlement and voluntary dismissal “effectively functions as a stay” because the case can revive if certain specified events occur.”

The case is Cooper v. Newsom, 18-16547.


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