As part of the "throw everything against the wall and see if anything sticks" strategy of attacking capital punishment, two notorious California murderers claimed that the state's method of execution statute violates the "delegation doctrine." That doctrine says that the legislative branch cannot delegate rule-making authority to executive agencies without adequate guidance. The doctrine was prominent in the fight between SCOTUS and FDR during the Great Depression, but it hasn't seen a lot of action since.

Like most states, California's law establishes the methods in broad terms and leaves the details to the Department of Corrections and Rehabilitation. The excessive delegation claim was rejected by the Superior Court of Alameda County in Oakland, and today it was rejected by the Court of Appeal for the First District in San Francisco.  The case is Sims v. Kernan, A151732.

If the argument had been accepted, it would have been an earthquake in the administrative state -- not a little shaker, not the Pretty Big One, but The Big One. If the legislature can't delegate this, vast amounts of what it has delegated would also fall.

The argument has been rejected in every state to consider it except Arkansas. Today's opinion quotes the USDC WD-Mo. characterizing the Arkansas case of Hobbs v. Jones as an "outlier." That's putting it diplomatically.

Congrats to DAG Jose Zelidon-Zepeda, who represented the State in this matter.