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Cal. Supreme Denies Request to Speed Up Court of Appeal Decision

Bob Egelko reports in the SF Chron that the California Supreme Court has denied the state's request to speed up the effective date of the Court of Appeal's decision vacating the Superior Court's erroneous injunction against the execution of Albert Greenwood Brown.

This decision effectively postpones the execution until at least Friday.  The story notes that Friday is the expiration date of the state's stock of the drug prescribed by regulation for use in the process.  As noted in this post, that date is something of a fiction.  Nothing magic happens to the drug on Friday.  It doesn't turn into a pumpkin.

I think the Governator should issue another one-day reprieve.  If Brown's lawyers want to argue that a stock of pentothal that is perfectly good tomorrow is unconstitutional the day after tomorrow, let them make that frivolous argument.

In March 2006, the California Department of Corrections and Rehabilitation (CDCR) adopted Operational Procedure 770 (OP 770), the protocol for execution by lethal injection in this state. In April 2006, condemned prisoners Michael Morales and Mitchell Sims sued CDCR and other state defendants (collectively the state) alleging that the adoption of OP 770 did not comply with the California Administrative Procedure Act (APA). (Morales, et al. v. California Department of Corrections and Rehabilitation, et al., Marin County Super. Ct. No. CIV 06136.) In November 2007, the Marin County Superior Court permanently enjoined CDCR "from carrying out the lethal injection of any condemned inmates under OP 770 unless and until OP 770 is promulgated as a regulation in full compliance with the [APA]" (the 2007 injunction). That judgment was affirmed by the Court of Appeal (Morales v. California Dep't of Corr. & Rehab. (2008) 168 Cal.App.4th 729 (Morales I)), and the state did not seek review in this court. Thereafter, a revised version of the protocol, approved by the California Office of Administrative Law, was promulgated (Cal. Code Regs., tit. 15, ? 3349) and became effective by operation of law on August 29, 2010. (Gov. Code, ? 11343.4.) The People thereupon notified condemned inmates, including Sims, that they would resume scheduling executions. On August 30, 2010, the Riverside County District Attorney obtained an execution date of September 29, 2010, for condemned inmate Albert Greenwood Brown. Meanwhile, on August 10, 2010, Sims moved in Marin County Superior Court to enforce the 2007 injunction, urging that it continued to bar executions under the new and amended regulations unless and until the state demonstrated in court that these regulations complied with the APA. On August 31, 2010, the superior court granted the motion to enforce. On September 2, 2010, the state filed an original petition for writ of mandate in the Court of Appeal seeking to overturn the superior court's order. On September 20, 2010, the Court of Appeal ordered the issuance of a peremptory writ of mandate directing the Marin County Superior Court to vacate its order enforcing the 2007 injunction and enter a new and different order denying the motion to enforce the injunction. The Court of Appeal specified that its judgment "shall be final as to this court immediately." (California Department of Corrections and Rehabilitation v. Superior Court (Morales et al., RPIs), A129540 (Morales II).

Under applicable court rules, Sims thus has 10 days after September 20, 2010, or to and including September 30, 2010, to petition this court for review in Morales II. (Cal. Rules of Court, rule 8.500(e)(1).) Such a filing would be timely under the rules if, at any time on September 30, 2010, a petition for review is mailed by priority or express mail, or is delivered to a common carrier promising overnight delivery. (Id., rule 8.25(b)(3).) In any event, this court has a minimum of 30 days after September 20, 2010, or to and including October 20, 2010, to order review on its own motion (id., rule 8.512(c)(1)). The rules further provide that the Court of Appeal's remittitur, transferring jurisdiction to the Superior Court to act in compliance with the Court of Appeal's judgment, cannot issue while time remains for this court to order review. (Id., rules 8.272(b)(1)(A), 8.490(c).) On September 27, 2010, the Governor issued a reprieve of Brown's execution, effective until 11:59 p.m. on September 29, 2010, apparently believing this would ensure that the execution would not proceed prior to the timely filing of a petition for review in Morales II. Brown's execution was thereupon rescheduled for 9:00 p.m. on September 30, 2010. (See Pen. Code, ? 1227.5.) Thereafter, on September 27, 2010, the state filed in this court the instant "Petition for Mandate or Other Appropriate Relief." We solicited, and on September 28, 2010, we received, an informal response and an informal reply to the state's petition.

In its pleading, the state requests that we deem the Court of Appeal's decision in Morales II "final" if Sims has not filed a petition for review in that matter by 5:00 p.m. on September 30, 2010. If no such petition for review is filed within that time, the state further requests that we (1) then immediately order the Court of Appeal to issue a writ of mandate, and a remittitur, in Morales II by 6:00 p.m. that evening, and (2) further direct the Marin County Superior Court to comply with the Court of Appeal's writ and remittitur, and thus to vacate its own order enforcing the 2007 injunction, by 7:00 p.m. the same evening. The state represents that unless, by these extraordinary means outside our normal rules, we remove the obstacle the 2007 injunction presents to Brown's scheduled execution at 9:00 p.m. on September 30, 2010, the state will likely be unable to execute Brown, or any other condemned inmate, during this year. That is so, the state declares, because its limited, and temporarily irreplaceable, supply of one of the execution drugs, sodium thiopental, "expires" on October 1, 2010. The state acknowledges that these proposals contravene the well-established rules governing the times for seeking, and ordering, review in this court, and for the issuance of remittiturs. It argues only that this court has the inherent power to suspend those rules in the interest of justice. But the state fails to demonstrate that this is a situation in which mandate properly lies "to compel the performance of an act which the law specially enjoins." (Code Civ. Proc., ? 1085.) No compelling reason appears why this court should, by extraordinary means, remove an obstacle to Brown's execution by denying litigant Sims his full normal time to petition for review in this court, or by cutting short its own jurisdictional time to grant or order review in Morales II. By choosing an execution date for Brown of September 29, 2010, with presumptive knowledge that it faced the imminent loss of an essential ingredient to the execution on October 1, 2010, the state has itself contributed to circumstances incompatible with the orderly resolution, pursuant to normal procedures, of pending legal issues in connection with executions under the new regulations. Accordingly, the state's "Petition for Writ of Mandate or Other Appropriate Relief" is denied.

votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Moreno and Corrigan, JJ. (note: order filed at 1:10 p.m.)


Agreed. This is clearly a power grab by activist judges determined to act as a check on the power of the executive. I wish we had a deferential and malleable judiciary that bent over to accommodate those in positions of power.

And being ruled by judicial fiat is better? Give me a break.

bhaal, perhaps you ought to reconsider your comments. First of all, there was absolutely nothing wrong with California setting a date under presumptively valid regs a month in advance. Second of all, let's not forget one very important thing--the victim's family, who, after all, did not ask to be in the position they are in have been waiting for 30 years for justice. The arrogance of the California Supreme Court--"no compelling reason"? How about ending the agony of people who have endured 30 years.


"The appeals process in California has proven to be nothing more than a never-ending war of attrition against justice and the rights of victims and their families," Karen Jordan Brown said in an e-mailed statement sent Thursday.


Maybe "despicable" is too kind a word.

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