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ACLU's California Lethal Injection Suit Dismissed

Immediately after last November's election, two lawsuits were filed by the anti-death-penalty crowd in California.  One of them, in the California Supreme Court, seeks to block the voter-approved reform measure, Proposition 66.  Briefing in that case is completed, and we are waiting with bated breath for oral argument to be set.

The second case was filed by the ACLU in Superior Court in Oakland, Alameda County.  This suit claims that the statute specifying lethal injection as the method of execution and leaving it to the Department of Corrections and Rehabilitation (CDCR) to fill in the details violates the separation of powers.  This thesis has been rejected by courts nationwide except Arkansas.  Seriously, you would have to go all the way back to 1935 and the notorious "sick chicken case" to find such a cramped view of delegation in the federal courts or any but an aberrant few state courts. 

CDCR filed a demurrer.  That's legalspeak for "even if all the facts you allege were true, you would still have no case as a matter of law."  It's a way to get rid of a bogus case at the threshold instead of going to trial.

Judge Kimberly Colwell sustained the demurrer without leave to amend.  That's legalspeak for "You're outta here and don't come back."

The early pages of the order are background and rejecting CDCR's arguments why the court should not reach the merits.  The good stuff is the merits discussion beginning on the bottom of page 8.


I would be grateful for your insightful analysis, Kent, of whether CA is really getting significantly closer to having an execution now six months after the passage of Proposition 66.

I am not well informed on the usual pacing of DP litigation in CA, but I am fearful the California Supreme Court plans to take its sweet time deciding the pending case. And I assume any loss in the CA Supreme Court will be followed by appeals in the CA federal court/Ninth Circuit, which could easily go on for another couple years.

Perhaps I can frame the question this way: Do you think it likely California will have a single execution before 2020? dozens before 2025?

The Prop. 66 case is an original writ petition in the Supreme Court. The court generally moves expeditiously with such cases when it takes them. (Most are summarily denied.)

The court set a brisk briefing schedule and denied a very modest extension request, so we were expecting an early oral argument. The last regularly scheduled argument period before the summer recess is the first full week of June.

Oddly, here we are at May 16 and the June calendar hasn't been announced yet. A full month in advance is typical. We are still hoping for June but not sure what is going on internally at the court.

Cases are generally considered "submitted" upon the completion of oral argument, and the state constitution then requires a decision within 90 days.

The issues in this case are nearly all state law. There is one Fourteenth Amendment equal protection claim, but it is particularly meritless. I do not see the U.S. Supreme Court taking the case or granting a stay pending certiorari.

Very helpful, Kent, leading me to think this litigation could well be over by, say, Oct 1, 2017.

But does that then mean execution dates will get set soon thereafter? And, in turn, do you think it likely California will have a single execution before 2020? dozens before 2025?

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