Morales v. Beard, et al

MOTION to Intervene

N.D. Cal.August 23, 2012

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ROBERT FAIRBANK’S MOTION TO INTERVENE AND FOR A STAY OF EXECUTION Case Nos.: 3:06-cv-219-RS; 3:06-cv-926-RS SEAN K. KENNEDY (SBN 145632) Federal Public Defender MARK R. DROZDOWSKI (SBN 166669) MARGO A. ROCCONI (SBN 156805) ELIZABETH RICHARDSON-ROYER (SBN 257691) Deputy Federal Public Defenders 321 East 2nd Street Los Angeles, California 90012-4202 Telephone: (213) 894-5063 Facsimile: (213) 894-0081 Email: Mark_Drozdowski@fd.org Attorneys for Intervenor ROBERT GREEN FAIRBANK UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION MICHAEL ANGELO MORALES, ) CASE NO. 3:06-cv-219-RS et al., ) CASE NO. 3:06-cv-926-RS ) Plaintiffs, ) DEATH PENALTY CASE v. ) ) NOTICE OF MOTION AND MATTHEW CATE, Secretary of the ) MOTION TO INTERVENE BY California Department of ) ROBERT FAIRBANK; NOTICE OF Corrections and Rehabilitations, ) MOTION AND MOTION TO STAY et al., ) EXECUTION; MEMORANDUM OF ) POINTS AND AUTHORITIES; Defendants. ) DECLARATION OF MARK R. ) DROZDOWSKI IN SUPPORT ) THEREOF ) ) DATE: To Be Determined ) TIME: To be Determined ) PLACE: Courtroom 3 ______________________________ ) Case3:06-cv-00219-RS Document555 Filed08/23/12 Page1 of 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ROBERT FAIRBANK’S MOTION TO INTERVENE AND FOR A STAY OF EXECUTION Case Nos.: 3:06-cv-219-RS; 3:06-cv-926-RS i TABLE OF CONTENTS Page MEMORANDUM OF POINTS AND AUTHORITIES.. . . . . . . . . . . . . . . . . . . . . . . 2 I. Issues To Be Decided. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 II. Summary of Relevant Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 III. Fairbank’s Motion to Intervene Should Be Granted. . . . . . . . . . . . . . . . . . . . . 9 A. Introduction.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 B. Fairbank’s Motion to Intervene Is Timely. . . . . . . . . . . . . . . . . . . . . . . 10 C. This Court Must Grant Intervention To Fairbank As Of Right. . . . . . . 12 1. Fairbank’s Interests In This Matter Are Identical To Those of Morales, Brown, Sims, and Fields . . . . . . . . . . . . . . . . 12 2. Without Intervention, Fairbank Is Practically Impaired and Impeded from Protecting His Fifth, Eighth, and Fourteenth Amendment Interests in Avoiding Execution by an Unconstitutional and Arbitrary Procedure. . . . 12 D. The Standards for Permissive Intervention Are Met. . . . . . . . . . . . . . . 13 1. This Court Has Independent Grounds for Jurisdiction. . . . . . . . 14 2. Fairbank’s Claims Have Common Questions of Law or Fact with Those of the Main Action. . . . . . . . . . . . . . . . . . . . 14 IV. Fairbank’s Motion to Stay His Execution Should Be Granted. . . . . . . . . . . . 15 A. Fairbank is Likely to Succeed on the Merits. . . . . . . . . . . . . . . . . . . . . 17 B. Fairbank Will Suffer Irreparable Harm. . . . . . . . . . . . . . . . . . . . . . . . . 18 C. The Equities are in Fairbank’s Favor and Granting the Stay Furthers The Public’s Interest in Orderly Review. . . . . . . . . . . . . . . . . 19 V. Conclusion.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Case3:06-cv-00219-RS Document555 Filed08/23/12 Page2 of 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ROBERT FAIRBANK’S MOTION TO INTERVENE AND FOR A STAY OF EXECUTION Case Nos.: 3:06-cv-219-RS; 3:06-cv-926-RS ii TABLE OF AUTHORITIES FEDERAL CASES Page(s) Barefoot v. Estelle, 463 U.S. 880 (1983). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Beardslee v. Woodford, 395 F.3d 1064 (9th Cir. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Beaty v. Food & Drug Admin., --- F. Supp. 2d ---, 2012 WL 1021048 (D.D.C. 2012) . . . . . . . . . . . . . . . . . . . . 7 Citizens for Balanced Use v. Mont. Wilderness Association, 647 F.3d 893 (9th Cir. 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Fairbank v. Ayers, __ U.S. __, 132 S. Ct. 1757 (2012).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 11 Georgia v. Ashcroft, 539 U.S. 461 (2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Hill v. W. Electric Co., Inc., 672 F.2d 381 (4th Cir. 1982). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 League of United Latin America Citizens v. Wilson, 131 F.3d 1297 (9th Cir. 1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Martinez v. City of Oxnard, 229 F.R.D. 159 (C.D. Cal. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Martinez-Villareal v. Stewart, 118 F.3d 625 (9th Cir. 1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Morales v. Cate, 623 F.3d 828 (9th Cir. 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Morales v. Hickman, 415 F. Supp. 2d 1037 (N.D. Cal. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 16 Morales v. Tilton, 465 F. Supp. 2d 972 (N.D. Cal. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 16 Northwest Forest Resource Council v. Glickman, 82 F.3d 825 (9th Cir. 1996). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 13 United States v. Oregon, 745 F.2d 550 (9th Cir. 1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 United States v. Oregon, 839 F.2d 635 (9th Cir. 1988). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Winter v. Natural Resource Defense Council, 555 U.S. 7 (2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Case3:06-cv-00219-RS Document555 Filed08/23/12 Page3 of 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ROBERT FAIRBANK’S MOTION TO INTERVENE AND FOR A STAY OF EXECUTION Case Nos.: 3:06-cv-219-RS; 3:06-cv-926-RS iii STATE CASES Morales v. Cal. Department of Correction & Rehabilitation, 85 Cal. Rptr. 3d 724 (Cal. Ct. App. 2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 DOCKETED CASES Cate v. United States District Court (Morales & Brown), Case No. 10-72977. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 People v. Brown Case No. CR18104. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 People v. Fairbank, Case No. SC-016-55. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Sims v. Cal. Dep't of Corr. & Rehab No. CIV 1004019 (Cal. Super. Ct. Marin Cnty. Feb. 21, 2.01. 2. ). . . . . . . . . . . . . 8 FEDERAL STATUTES 28 U.S.C. § 1331. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 28 U.S.C. § 1343. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 42 U.S.C. §1983. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 5, 14 Fed. R. Civ. P. 24.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim STATE STATUTES Cal. Code Regs. tit. 15, § 3349. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 4, 5, 6 Case3:06-cv-00219-RS Document555 Filed08/23/12 Page4 of 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ROBERT FAIRBANK’S MOTION TO INTERVENE AND FOR A STAY OF EXECUTION Case Nos.: 3:06-cv-219-RS; 3:06-cv-926-RS 1 PLEASE TAKE NOTICE that Robert Green Fairbank, Jr. hereby moves the Court, under Federal Rule of Civil Procedure 24, for an order granting him leave to intervene in the above-captioned matter. Fairbank’s claims share with the main action common questions of law or fact. Fairbank further moves the Court for an order staying his execution and all preparations relating thereto. There is a strong likelihood the present matter will succeed on the merits, the relative harm to the parties weighs in favor of Fairbank, and Fairbank has not delayed unnecessarily in bringing this motion for a stay. The motions are based on Plaintiffs’ Fourth Amended Complaint for Equitable and Injunctive Relief Pursuant to 42 U.S.C. §1983, this Notice, this Memorandum of Points and Authorities, the Declaration of Mark R. Drozdowski and attached exhibits, and the proposed order, along with all exhibits and papers filed in this action and any evidence received at the hearing. Respectfully submitted, SEAN K. KENNEDY Federal Public Defender MARK R. DROZDOWSKI MARGO A. ROCCONI ELIZABETH H. RICHARDSON-ROYER Deputy Federal Public Defenders DATED: August 23, 2012 By: /s/ Mark. R. Drozdowski MARK R. DROZDOWSKI Deputy Federal Public Defender Attorneys for Intervenor ROBERT FAIRBANK Case3:06-cv-00219-RS Document555 Filed08/23/12 Page5 of 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ROBERT FAIRBANK’S MOTION TO INTERVENE AND FOR A STAY OF EXECUTION Case Nos.: 3:06-cv-219-RS; 3:06-cv-926-RS 2 MEMORANDUM OF POINTS AND AUTHORITIES Robert Green Fairbank, Jr. seeks to intervene in this action pursuant to Rule 24(b) of the Federal Rules of Civil Procedure because he “has 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). Alternatively, he seeks to intervene under Federal Rule of Civil Procedure 24(a)(2). Fairbank further seeks temporary, preliminary, and permanent injunctive relief to enjoin the Defendants, their officers, agents, servants, and employees, and all persons acting in concert with them from preparing to set or setting Fairbank’s execution date or executing him by lethal injection using the lethal injection regulations promulgated as California Code of Regulations, Title 15, § 3349 et seq., or any similar practices or protocol. I. Issues To Be Decided 1. Whether Fairbank may intervene as a plaintiff in this litigation pursuant to Rule 24(b) of the Federal Rules of Civil Procedure permissibly or as a matter of right. 2. Whether Fairbank should be granted a stay of execution on the same basis and to the same extent as Plaintiffs Morales, Brown, Fields, and Sims, including but not limited to a stay of any preparations for the setting of an execution date for Fairbank. II. Summary of Relevant Facts Fairbank is a condemned inmate in the custody of the California Department of Corrections and Rehabilitation (CDCR). He is held at San Quentin State Prison, San Quentin, California, 94974. A San Mateo County jury reached a verdict of death in the penalty phase of Fairbank’s trial on April 17, 1989, and the Superior Court for the County of San Mateo issued a commitment-judgment of death on September 5, 1989. Fairbank’s direct appeals and petition for writ of habeas corpus in state court were unsuccessful, and the Ninth Circuit upheld the denial of Fairbank’s federal habeas petition. On March 19, 2012, the United States Supreme Court denied Fairbank’s Case3:06-cv-00219-RS Document555 Filed08/23/12 Page6 of 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ROBERT FAIRBANK’S MOTION TO INTERVENE AND FOR A STAY OF EXECUTION Case Nos.: 3:06-cv-219-RS; 3:06-cv-926-RS 3 petition for writ of certiorari. See Fairbank v. Ayers, __ U.S. __, 132 S. Ct. 1757 (2012). Fairbank currently does not have a stay of execution in any court. On July 6, 2012, the San Mateo County District Attorney filed a motion in San Mateo County Superior Court seeking to compel the CDCR to execute Fairbank by a one-drug lethal injection or show cause why such execution cannot be performed. (Declaration of Mark R. Drozdowski (“Drozdowski Decl.”) ¶ 5, Ex. A, Commitment and Judgment of Death, Notice of Motion and Motion for Order of Execution Using Single Drug Method and Order to Show Cause (“Motion for Order of Execution”), People v. Fairbank, Case No. SC-016-55, San Mateo Super. Ct.) A hearing on the District Attorney’s Motion for Order of Execution has been scheduled for September 14, 2012. (Drozdowski Decl. ¶ 6.) On December 15, 2006, this Court issued an order finding that the “implementation of California’s lethal-injection protocol lacks both reliability and transparency.” Morales v. Tilton, 465 F. Supp. 2d 972, 981 (N.D. Cal. 2006). The Court further determined that California’s actions and failures to act with respect to the implementation of its lethal-injection protocol have resulted in an intolerable risk of a Constitutional violation. Id. To remedy this situation, California would have to undergo a “meaningful” review of its processes, which “must be undertaken with an openness to the idea of making significant improvements in the ‘infrastructure’ of executions.” Id. at 983. Thereafter, former Governor Arnold Schwarzenegger announced via a press release on December 18, 2006 that he was “committed to doing whatever it takes to ensure that the lethal injection process is constitutional.” (Dkt. 291 (Ex. A).) Schwarzenegger added that his “administration [would] take immediate action to resolve [the] court[’s] concerns.” (Id.) Then-Governor Schwarzenegger and the CDCR issued a revised Operational Procedure 770 (2007 Lethal Injection Protocol) on May 15, 2007. On November 29, 2007, the Marin County Superior Court declared invalid and enjoined the Case3:06-cv-00219-RS Document555 Filed08/23/12 Page7 of 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ROBERT FAIRBANK’S MOTION TO INTERVENE AND FOR A STAY OF EXECUTION Case Nos.: 3:06-cv-219-RS; 3:06-cv-926-RS 4 enforcement of California’s 2007 Lethal Injection Protocol. Morales v. Cal. Dep’t of Corr. & Rehab., No. CV 061436 (Super. Ct. Marin Cnty., Cal. Nov. 29, 2007), aff’d, Morales v. Cal. Dep’t of Corr. & Rehab., 85 Cal. Rptr. 3d 724, 741 (Cal. Ct. App. 2008). On July 30, 2010, the California Office of Administrative Law (OAL) promulgated regulations of the Lethal Injection Protocol (2010 Lethal Injection Protocol), effective August 29, 2010. Cal. Code Regs. tit. 15, § 3349. With the exception of a few additional deficiencies, the 2010 Lethal Injection Protocol is substantially identical to the 2007 Lethal Injection Protocol. On August 30, 2010, the day after the 2010 Lethal Injection Protocol took effect, the Riverside County Superior Court issued an execution warrant for Albert Brown. People v. Brown, No. CR18104 (Super. Ct. Riverside Cnty., Cal. Aug. 30, 2010). After litigation involving five different courts over a six-week period, the Court of Appeals for the Ninth Circuit directed this Court to reconsider its previous denial of Brown’s motion to stay his execution (Dkt. 420), and this Court then issued a stay (Dkt. 424). “[O]f particular importance” to the Ninth Circuit was the fact that Brown’s claims were “virtually identical” to the claims that Morales had brought – claims that were already pending before this Court. (Dkt. 420, at 8.) On September 28, 2010, this Court found that the Lethal Injection Protocol “as implemented in practice through and including the date of the evidentiary hearing in the 2006 Morales litigation created a ‘demonstrated risk of severe pain.’” (Dkt. 424 at 4.) The Court also found, based on its limited opportunity to compare the 2007 Lethal Injection Protocol and the 2010 Lethal Injection Protocol, that “there is a significant dispute” that there exists a meaningful difference between the two protocols other than the physical facility in which executions are to take place. (Id. at 5.) This Court further indicated that it “intend[ed] to undertake . . . review . . . as Case3:06-cv-00219-RS Document555 Filed08/23/12 Page8 of 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Defendants’ counsel had previously filed a written statement on November1 10, 2010, specifying the following: Defendants address Plaintiffs’ request that any stay address the possibility of execution dates being sought during the course of a stay. Under California law, the named Defendants in this matter are not legally responsible for setting execution dates. Rather, an execution date is set by a superior court following a request and appropriate showing by a district attorney. Nevertheless, the Office of the Attorney General, in its role as counsel for the People of the State of California and apart from its representation of the Defendants here, does coordinate the setting of execution dates and exercises a supervisory role over the district attorneys. The Attorney General, in his capacity as counsel for the People and because of this pending litigation, can represent that he will not advise the district attorneys to request execution dates until the earlier of either: (1) thirty days after the conclusion of any further evidentiary hearing in this present action, or (2) a judgment is entered by this Court in this matter. (Dkt. 446 at 4.) ROBERT FAIRBANK’S MOTION TO INTERVENE AND FOR A STAY OF EXECUTION Case Nos.: 3:06-cv-219-RS; 3:06-cv-926-RS 5 quickly as is reasonably possible” of the claims raised by Morales and Brown. (Id. at 8.) On October 8, 2010, Morales and Brown filed a Fourth Amended Complaint for Equitable and Injunctive Relief Pursuant to 42 U.S.C. § 1983 in this matter. (Drozdowski Decl. ¶ 7, Ex. B, Fourth Amended Complaint (Dkt. 428).) On October 25, 2010, Defendants chose to move to dismiss the Fourth Amended Complaint rather than respond to discovery requests. (Dkt. 430.) The motion to dismiss was heard on December 2, 2010 and denied by this Court on December 10, 2010. (Dkt. 461.) On November 16, 2010, in response to an inquiry by the Court and after the Court expressed concerns that the setting of future executions across California would result in disorderly litigation such as occurred with Albert Brown, Defendants’ counsel, the chief law enforcement officer of the State of California, assured the Court that no execution dates would be set in California until the litigation of this matter was concluded. (Drozdowski Decl. ¶ 8, Ex. C, 11/16/10 RT at 3-9.) In a1 discussion with respect to whether other death row inmates who have exhausted their appeals but who are not plaintiffs to this action were protected by this promise, Case3:06-cv-00219-RS Document555 Filed08/23/12 Page9 of 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Raley’s stipulated intervention remains pending before the Court. 2 ROBERT FAIRBANK’S MOTION TO INTERVENE AND FOR A STAY OF EXECUTION Case Nos.: 3:06-cv-219-RS; 3:06-cv-926-RS 6 Defendants’ counsel affirmed that such interested parties could rely on these assurances. (Id. at 9-10.) At a March 4, 2011 hearing, and in response to a stipulated intervention sought by David Raley (Dkt. 511), this Court reiterated that there is “an agreement which2 has been made by the state in this case that they will not attempt to execute anyone until after this case is concluded at the district court level and I think that’s an agreement that can be relied upon by anyone who is an interested party.” (Drozdowski Decl. ¶ 9, Ex. D, 3/4/2011 RT at 60-61.) On November 22, 2010, Defendants filed a notice informing the Court and the parties, pursuant to this Court’s order of October 5, 2010, that the CDCR had ordered 521 grams of sodium thiopental that would expire in 2014. (Dkt. 455.) Defendants thereafter filed another notice stating that the shipment had been delayed and Defendants finally received 514.5 grams of sodium thiopental on January 20, 2011. (Dkt. 474.) Defendants secured an execution team on or about October 17, 2011. (Dkt. 531.) On December 29, 2011, Plaintiffs Fields and Sims moved to intervene and for stays of executions. (Dkt. 467.) Their motions were granted. (Dkt. 473.) On December 19, 2011, the Marin County Superior Court ordered that the execution protocol, Cal. Code Regs. tit. 15, §§ 3349 et seq., was improperly enacted under California’s Administrative Procedures Act (APA). A judgment with an injunction was entered on February 21, 2012, permanently enjoining the CDCR “from carrying out the execution of any condemned inmate by lethal injection unless and until new regulations governing lethal injection executions are promulgated in compliance with the Administrative Procedures Act.” (Drozdowski Decl. ¶ 10, Ex. E, Marin County Sup. Ct. Order.) CDCR stated that it would be reviewing the Case3:06-cv-00219-RS Document555 Filed08/23/12 Page10 of 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Fairbank filed suit in Beaty on February 2, 2011, more than a year before his3 federal habeas case became final. (See Drozdowski Decl. ¶ 2, Ex. G at 6.) ROBERT FAIRBANK’S MOTION TO INTERVENE AND FOR A STAY OF EXECUTION Case Nos.: 3:06-cv-219-RS; 3:06-cv-926-RS 7 possibility of a single-drug execution protocol during the appeal. (Drozdowski Decl. ¶ 11, Ex. F, Notice of Appeal, at 2.) On March 27, 2012, in a case brought by Fairbank and other plaintiffs, the United States District Court for the District of Columbia declared that the Food and Drug Administration (FDA) had acted improperly in permitting the importation of thiopental for the purposes of executions, and it ordered the FDA to retrieve all imported thiopental. Beaty v. Food & Drug Admin., --- F. Supp. 2d ---, 2012 WL 1021048, at *8 (D.D.C. 2012). Pursuant to the district court’s order, the FDA asked3 the CDCR in a letter dated April 6, 2012 to send any foreign-manufactured thiopental in its possession to the FDA. (Drozdowski Decl. ¶¶ 12-14, Exs. H-J, correspondence between the FDA and the CDCR.) The CDCR has not returned the thiopental to the FDA, and the FDA and Department of Health and Human Services are appealing the decision in the U.S. Court of Appeals for the District of Columbia Circuit. (Drozdowski Decl. ¶ 15, Ex. K, Notice of Appeal filed May 25, 2012.) On May 1, 2012, the District Attorney for the County of Los Angeles (L.A. County District Attorney) moved the Los Angeles County Superior Court for an order requiring the CDCR to develop a single-drug execution protocol without APA approval and to set execution dates for Mitchell Sims and Tiequon Cox under a one- drug method. (Drozdowski Decl. ¶ 16, Ex. L, L.A. County District Attorney’s Motion.) The L.A. County District Attorney, who personally signed the motion, failed to inform the Superior Court of this Court’s stay of execution for Plaintiff Sims, the March 4, 2011 proceedings in this Court, the Marin County Superior Court’s permanent injunction, or the CDCR’s appeal of the judgment in that case. On May 16, 2012, Cox moved to intervene in this litigation and requested that this Court issue a stay of execution. (Dkt. 535.) His motion is pending. In response, on May 24, 2012, the L.A. County District Attorney also moved to intervene, seeking Case3:06-cv-00219-RS Document555 Filed08/23/12 Page11 of 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ROBERT FAIRBANK’S MOTION TO INTERVENE AND FOR A STAY OF EXECUTION Case Nos.: 3:06-cv-219-RS; 3:06-cv-926-RS 8 to prevent intervention by Cox and to clarify the meaning of this Court’s stay of execution with respect to Sims. (Dkt. 542.) Plaintiffs opposed the L.A. District Attorney’s motion to intervene (Dkt. 546), while Defendants filed a response “defer[ring] to the Court’s discretion concerning whether the District Attorney may intervene” (Dkt. 544). On August 10, 2012, this Court adopted the parties’ joint proposed schedule, vacating the stipulated schedule and ordering that “[t]he parties shall submit a new proposed schedule within thirty days after (1) viable lethal-injection regulations are in place or (2) the Marin Superior Court’s decision invalidating the regulations, Sims v. Cal. Dep’t of Corr. & Rehab, No. CIV 1004019 (Cal. Super. Ct. Marin Cnty. Feb. 21, 2012), is overturned on appellate review, whichever occurs first.” (Dkt. 554.) In response to the L.A. County District Attorney’s motion to intervene, the Court also ordered that, “[u]ntil this Court rules on the Motion or otherwise orders, the Los Angeles District Attorney’s Office shall lodge forthwith copies of documents and transcripts from April 2012 forward in the two state-court cases.” (Dkt. 553.) Fairbank’s counsel sought a stipulation to intervene and for a stay of execution for Fairbank that was identical to that which Defendants stipulated to and submitted to this Court for Raley. (See Dkt. 511.) Defendants’ counsel declined to so stipulate at this time. (Drozdowski Decl. ¶ 18.) On August 16, 2012, Fairbank’s counsel sent a letter to Attorney General Kamala D. Harris, requesting that she direct the San Mateo County District Attorney to (1) withdraw his Motion for Execution and (2) comply with her office’s representation to this Court that no execution dates would be set while this litigation is pending. (Drozdowski Decl. ¶ 17, Ex. M.) Counsel requested a response by August 22, 2012, and stated that if the Motion for Execution was not withdrawn by then Fairbank would have no choice but to seek to intervene and request a stay of execution in this action. (Id.) To date, Fairbank’s counsel have received no response. (Drozdowski Decl. ¶ 17.) Case3:06-cv-00219-RS Document555 Filed08/23/12 Page12 of 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ROBERT FAIRBANK’S MOTION TO INTERVENE AND FOR A STAY OF EXECUTION Case Nos.: 3:06-cv-219-RS; 3:06-cv-926-RS 9 Fairbank is not required to exhaust administrative remedies before bringing this claim because resolution of the grievance seeking modification of the regulations is not possible through the CDCR administrative process and exhaustion is futile. See Beardslee v. Woodford, 395 F.3d 1064, 1069 n.5 (9th Cir. 2005). Nevertheless, Fairbank submitted his inmate appeal for administrative remedy on June 28, 2012, in light of the L.A. County District Attorney’s filings, even before the San Mateo County District Attorney brought his Motion against him. (Drozdowski Decl. ¶ 4, Ex. N at 1-5.) By an Inmate Appeal Assignment Notice dated July 20, 2012, Fairbank was informed that his administrative appeal had been sent for a second-level review. ((Drozdowski Decl. ¶ 4, Ex. O at 1.) By this motion to intervene, Fairbank also seeks to preclude any future objection by Defendants that Fairbank is not entitled to intervene or to a stay of execution due to “inexcusable delay.” Although Defendants did not raise this objection to Brown’s motion for intervention and for a stay of execution in this Court, Defendants did untimely raise it in their later-withdrawn Petition for Writ of Mandamus to the Ninth Circuit Court of Appeal in Cate v. United States District Court (Morales & Brown), Case No. 10-72977. III. Fairbank’s Motion to Intervene Should Be Granted A. Introduction Morales and Brown’s Fourth Amended Complaint for Equitable and Injunctive Relief is incorporated herein by reference. (See Drozdowski Decl. ¶ 7, Ex. B, Fourth Amended Complaint.) Fairbank joins in the Fourth Amended Complaint in all its particulars as it currently is set forth. A federal court must permit intervention as of right by anyone who files a timely motion and who “claims an interest relating to the . . . transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant’s ability to protect its interest, unless existing parties adequately represent that interest.” Fed. R. Civ. P. 24(a)(2). Alternatively, “a Case3:06-cv-00219-RS Document555 Filed08/23/12 Page13 of 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ROBERT FAIRBANK’S MOTION TO INTERVENE AND FOR A STAY OF EXECUTION Case Nos.: 3:06-cv-219-RS; 3:06-cv-926-RS 10 court may grant permissive intervention where the applicant for intervention shows (1) independent grounds for jurisdiction; (2) the motion is timely; and (3) the applicant’s claim or defense, and the main action, have a question of law or a question of fact in common.” Nw. Forest Res. Council v. Glickman, 82 F.3d 825, 839 (9th Cir. 1996); see also Fed. R. Civ. P. 24(b). Here, Fairbank satisfies the standards for intervention as of right as well as for permissive intervention. B. Fairbank’s Motion to Intervene Is Timely Fairbank’s motion to intervene is timely under the standards applicable to intervention as of right and to permissive intervention. In determining whether a motion to intervene is timely, courts consider three factors: “the stage of the proceedings, the prejudice to existing parties, and the length of and reason for the delay.” League of United Latin Am. Citizens v. Wilson, 131 F.3d 1297, 1308 (9th Cir. 1997); see also Fed. R. Civ. P. 24(b)(3). All three factors weigh in favor of granting Fairbank’s motion to intervene. First, this matter is still in its initial stages of review, as mandated by numerous court orders. On August 10, 2012, the Court adopted the parties’ request that the scheduling order be vacated and that a new scheduling order not be proposed until thirty days after either viable lethal-injection regulations are in place or the Marin Superior Court’s decision invalidating the regulations is overturned on appeal. (Dkt. 554.) Discovery, too, remains stayed. (Dkt. 534.) Furthermore, the motions to intervene of two other inmates, Tiequon Cox and Dave Raley, are already pending before the Court. (Dkts. 511. 535.) Given the stage of this litigation, there will be no additional delay to existing parties as a result of Fairbank’s intervention. See Martinez v. City of Oxnard, 229 F.R.D. 159, 163 (C.D. Cal. 2005) (permitting intervention while discovery was ongoing). Existing parties will not otherwise be prejudiced by Fairbank’s intervention, because Fairbank does not seek to “relitigate matters which have previously been litigated,” raise any claims other than those Case3:06-cv-00219-RS Document555 Filed08/23/12 Page14 of 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ROBERT FAIRBANK’S MOTION TO INTERVENE AND FOR A STAY OF EXECUTION Case Nos.: 3:06-cv-219-RS; 3:06-cv-926-RS 11 raised by existing Plaintiffs, or assert any claims against them. United States v. Oregon, 745 F.2d 550, 553 (9th Cir. 1984) (holding that the state of Idaho could intervene in litigation concerning fishing on the Columbia River when “Idaho has disclaimed any intent to relitigate matters which have previously been litigated, to raise any claims unrelated to the Tribes’ treaty fishing rights, or to assert any claims against the other states”). Furthermore, as explained further in detail below, Fairbank joins the Fourth Amended Complaint in all its particulars, and Fairbank’s counsel intends to work cooperatively with counsel for Morales, Brown, Sims, and Fields in developing any further briefing rather than filing separate briefing before this Court. Counsel for Plaintiff Morales do not oppose Fairbank’s intervention. (Drozdowski Decl. ¶ 18.) This intended cooperation with existing Plaintiffs further prevents any prejudice to the existing parties. Finally, Fairbank has not delayed in bringing his claims. The State of California’s execution protocol went into effect on August 29, 2010 and was declared invalid on February 21, 2012. (See Drozdowski Decl., Ex. E.) During that time, Fairbank was appealing his habeas claims, a process that ended only with the United States Supreme Court’s denial of Fairbank’s petition for certiorari on March 19, 2012. See Fairbank v. Ayers, __ U.S. __, 132 S. Ct. 1757 (2012). More than one year before his federal habeas action concluded, Fairbank challenged California’s lethal injection regime by seeking injunctive relief as a party in the FDA lawsuit filed in the District of Columbia, and he acted to exhaust any administrative remedies even before the San Mateo District Attorney filed its Motion against him. See supra at 9. Furthermore, the San Mateo District Attorney filed his Motion for Order of Execution on July 6, 2012; Fairbank’s counsel received their service copy on July 9. Fairbank tried to resolve the Motion for Execution by asking Attorney General Kamala Harris to direct that the motion to be dismissed, and asked for a response by August 22, 2012 (yesterday). Receiving no response from the Attorney General, Case3:06-cv-00219-RS Document555 Filed08/23/12 Page15 of 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ROBERT FAIRBANK’S MOTION TO INTERVENE AND FOR A STAY OF EXECUTION Case Nos.: 3:06-cv-219-RS; 3:06-cv-926-RS 12 Fairbank now promptly seeks intervention, prior to the setting of any execution date, in order to avoid putting this Court in the position in which it was placed in September 2010. C. This Court Must Grant Intervention To Fairbank As Of Right As set forth above, a federal court must permit intervention as of right by anyone who files a timely motion and “claims an interest relating to the . . . transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant’s ability to protect its interest, unless existing parties adequately represent that interest.” Fed. R. Civ. P. 24(a)(2). 1. Fairbank’s Interests In This Matter Are Identical To Those of Morales, Brown, Sims, and Fields Fairbank joins in the Fourth Amended Complaint filed on behalf of Morales and Brown on October 8, 2010. All questions of law and fact related to Fairbank’s claims are identical to those in the Fourth Amended Complaint. 2. Without Intervention, Fairbank Is Practically Impaired and Impeded from Protecting His Fifth, Eighth, and Fourteenth Amendment Interests in Avoiding Execution by an Unconstitutional and Arbitrary Procedure Intervention as of right must be granted where, as here, the disposition of the action would put the movant at a practical disadvantage in protecting its interest. United States v. Oregon, 839 F.2d 635, 638 (9th Cir. 1988) (intervention as of right is proper when factual determinations in lawsuit challenging conditions of state mental health facility would have persuasive stare decisis effect in subsequent litigation by residents of facility). Intervention must also be granted when the existing parties do not adequately represent the movant’s interests. Citizens for Balanced Use v. Mont. Wilderness Ass’n, 647 F.3d 893, 900-01 (9th Cir. 2011); see also Fed. R. Civ. P. 24(a)(2). Case3:06-cv-00219-RS Document555 Filed08/23/12 Page16 of 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ROBERT FAIRBANK’S MOTION TO INTERVENE AND FOR A STAY OF EXECUTION Case Nos.: 3:06-cv-219-RS; 3:06-cv-926-RS 13 Here, although Fairbank shares identical interests in the legal claims propounded by Morales, Brown, Fields, and Sims, his specific interest in avoiding execution by an unconstitutional protocol – a protocol involving a demonstrated risk of severe pain – remains inadequately represented by the existing plaintiffs. If Fairbank is not permitted to intervene in this action, an execution date could be set for him and carried out pursuant to the current, flawed lethal injection protocol. Federal Rule of Civil Procedure 24(b) permits this Court to grant a motion for intervention to avoid such an unconstitutional state action. Hill v. W. Elec. Co., Inc., 672 F.2d 381, 390-92 (4th Cir. 1982) (permitting intervention where the interests of the unnamed class members would no longer be protected by the named class representatives). Unless Fairbank is permitted to intervene in this case, the State of California may well succeed in setting an execution date and may execute him while this lawsuit is pending. The likelihood that the State of California will take such an action is demonstrated by similar actions it has undertaken in the past. See Georgia v. Ashcroft, 539 U.S. 461, 477 (2003) (intervention properly granted to private parties in state’s action seeking judicial clearance of a legislative redistricting plan under the Voting Rights Act when private parties identified interests not adequately represented by existing parties). Despite the fact that this lawsuit was pending in August and September 2010, the State of California sought to set an execution date for Fields, and did set an execution date and nearly accomplished the execution of Brown, condemned prisoners who at the time were not parties to this lawsuit. D. The Standards for Permissive Intervention Are Met “[A] court may grant permissive intervention where the applicant for intervention shows (1) independent grounds for jurisdiction; (2) the motion is timely; and (3) the applicant’s claim or defense, and the main action, have a question of law or a question of fact in common.” Glickman, 82 F.3d at 839; see also Fed. R. Civ. P. 24(b). Case3:06-cv-00219-RS Document555 Filed08/23/12 Page17 of 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ROBERT FAIRBANK’S MOTION TO INTERVENE AND FOR A STAY OF EXECUTION Case Nos.: 3:06-cv-219-RS; 3:06-cv-926-RS 14 1. This Court Has Independent Grounds for Jurisdiction Fairbank’s claims arise under the Eighth and Fourteenth Amendments to the United States Constitution and 42 U.S.C. § 1983. This Court has independent grounds for jurisdiction pursuant to 28 U.S.C. § 1331 (federal question) and 28 U.S.C. § 1343 (civil rights). 2. Fairbank’s Claims Have Common Questions of Law or Fact with Those of the Main Action Fairbank joins the Plaintiffs in the Fourth Amended Complaint. Fairbank’s Claims and those set forth in the Fourth Amended Complaint share the following common questions of law and fact: • Whether the lethal injection regulations violate the Eighth and Fourteenth Amendments to the United States Constitution by creating a substantial risk that condemned inmates will experience severe pain and suffering during executions. (Drozdowski Decl. ¶ 7, Ex. B, Fourth Amended Complaint ¶¶ 22-23.) • Whether the procedure for the remote administration of chemical substances, the absence of standardized procedures for administration of the chemicals, the lack of adequate training, screening and qualifications of the personnel on the execution team, and the combination and amounts of the chemicals used in executions create a grave, substantial and demonstrated risk that condemned prisoners will be conscious during the execution process and, as a result, experience an excruciatingly painful and protracted death. (Id. ¶¶ 24-25, 27-31, 33-40.) • Whether the lethal injection regulations fail to require the minimum expertise of the execution team personnel necessary to ensure their proper performance. (Id. ¶¶ 26, 32.) • Whether Defendants have deliberately chosen to conduct executions in a manner that is not constitutionally compliant by selecting chemicals that Case3:06-cv-00219-RS Document555 Filed08/23/12 Page18 of 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ROBERT FAIRBANK’S MOTION TO INTERVENE AND FOR A STAY OF EXECUTION Case Nos.: 3:06-cv-219-RS; 3:06-cv-926-RS 15 cause excruciating pain and therefore carry a substantial risk of serious harm to a condemned inmate and by failing to take precautions to ensure that the personnel involved in the execution process possess the training, experience, and expertise necessary to administer the chemicals properly. (Id. ¶ 120.) • Whether Defendants have deliberately chosen to conduct executions by a combination of chemicals and a procedure that carries a substantial risk of serious harm when a feasible, readily implemented alternative method of execution is available. (Id. ¶¶ 5, 105(f), 106-109.) • Whether the Lethal Injection Protocol provides “specific guidelines for the administration of the three separate chemicals.” (Id. ¶ 113.) • Whether the Protocol contains adequate guidelines to assure that the inmate is “deeply anesthetized prior to injecting the second two drugs, or establish procedures for determining when an additional dose of sodium pentothal should be administered.” (Id. ¶ 116.) • Whether Fairbank, like Morales, Brown, Fields, and Sims, is entitled to injunctive relief. (Id. ¶ 7.) IV. Fairbank’s Motion to Stay His Execution Should Be Granted This Court should stay Fairbank’s execution and all preparations relating thereto by extending to him the exact stay already in place for Morales, Brown, Sims, and Fields, which secures the orderly review in this Court that was ordered by the Ninth Circuit Court of Appeals. The Court has not ruled on Raley’s stipulated request to intervene and for a stay after it received assurances from Defendants’ counsel that executions would not resume until this litigation is completed. Those assurances have now been shown to be insufficient as to Fairbank to bind other state actors who may refuse to respect the agreements executed, as well as representations made to this Court, by the California Attorney General’s Office. Case3:06-cv-00219-RS Document555 Filed08/23/12 Page19 of 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ROBERT FAIRBANK’S MOTION TO INTERVENE AND FOR A STAY OF EXECUTION Case Nos.: 3:06-cv-219-RS; 3:06-cv-926-RS 16 A plaintiff seeking a preliminary injunction must establish: (1) that he is likely to succeed on the merits; (2) that he is likely to suffer irreparable harm in the absence of preliminary relief; (3) that the balance of equities tips in his favor; and (4) that an injunction is in the public interest. Winter v. Natural Res. Defense Council, 555 U.S. 7, 21 (2008). Under Barefoot v. Estelle, 463 U.S. 880 (1983), Fairbank is entitled to a stay of execution if he demonstrates “substantial grounds upon which relief might be granted.” Id. at 895. This standard is satisfied when the movant demonstrates that his “argument warrants further review” which cannot be fully and fairly accomplished in the time remaining before the execution. See Martinez-Villareal v. Stewart, 118 F.3d 625, 626-27 (9th Cir. 1997). Fairbank meets these standards no less than Brown, Fields, and Sims did. The course of the litigation here demonstrates that review has been delayed by Defendants’ difficulties in securing an execution team, litigation brought by Defendants to prohibit discovery, state court actions, and two state court injunctions. Without valid lethal injection regulations in place, and at least until completion of discovery, the substantive review mandated by the Ninth Circuit remand and this Court’s order in response cannot yet take place. On February 22, 2006, a stay of execution in favor of Morales went into effect to allow the Court to “hold an evidentiary hearing on the merits of Plaintiff’s claims.” Morales v. Hickman, 415 F. Supp. 2d 1037, 1048 (N.D. Cal. 2006); see also Morales v. Tilton, 465 F. Supp. 2d 972, 977 (N.D. Cal. 2006). While the review was temporarily stayed during pendency of state administrative regulatory litigation (Dkt. 370), that litigation was completed in August 2010. Pursuant to the remand order that the Ninth Circuit issued on September 28, 2010, this Court ordered its substantive review shortly thereafter. The review was delayed, however, by Defendants’ attempts to dismiss the complaint and obtain a protective order, by ongoing discovery Case3:06-cv-00219-RS Document555 Filed08/23/12 Page20 of 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Discovery disputes have been ongoing in this case since October 15, 2010,4 when Plaintiffs first served Defendants with interrogatories and requests for documents relating to Defendants’ efforts to adopt and implement the new lethal injection regulations which became effective on August 28, 2010. (Defendants supposedly employed the new regulations even earlier than the published effective date and were employing them through September 29, 2010 during Defendants’ unsuccessful attempt to execute plaintiff Albert Brown on September 30, 2010.) Defendants responded to the discovery requests with a motion for a protective order (Dkt. 436), which induced Plaintiffs to file a motion to compel answers, documents, and information (Dkt. 452). On March 11, 2011, the Court ordered “Defendants to produce the requested documents and information and to answer the interrogatories.” (Dkt. 513.) Defendants, however, have yet to fully comply with this order. In April 2012, given uncertainties regarding how the Marin County Superior Court litigation would impact the present action, the Court stayed discovery to prevent the parties from engaging in discovery that would turn out to be wasteful or unnecessary. (Dkt. 534.) On July 16, 2012, the parties filed a joint statement requesting that discovery continue to be stayed until a viable lethal injection regulation is in place or until the Marin County’s injunction is overturned on appellate review, whichever occurs first. (Dkt. 552.) ROBERT FAIRBANK’S MOTION TO INTERVENE AND FOR A STAY OF EXECUTION Case Nos.: 3:06-cv-219-RS; 3:06-cv-926-RS 17 disputes, and by a year-long wait for the appointment of an execution team. 4 With the discovery issues in this case unresolved, the Marin County Superior Court granted the plaintiffs’ motion for summary judgment on December 19, 2011, declaring the lethal injection regulations invalid. Judgment became final, with an injunction, on February 21, 2012. The CDCR has now appealed from this judgment. The Notice of Appeal notes that the CDCR will commence a review of the viability of changing its procedure to a single drug protocol. (Drozdowski Decl. ¶ 11, Ex. F, Notice of Appeal, at 2.) A. Fairbank is Likely to Succeed on the Merits Fairbank’s request for an injunction is likely to succeed on the merits. In its Memorandum of Intended Decision, this Court already has found that the demonstrable unreliability of the State’s execution protocol, and Defendants’ failure to correct it, violate the Eighth Amendment. It made that order explicit in response to the Brown execution effort after remand from the Ninth Circuit. (Dkt. 424.) Fairbank sits now in a position similar to that occupied by Brown upon remand from the Ninth Circuit. Brown was facing execution under a procedure that was out of compliance with state law. That procedure has now been declared invalid and Case3:06-cv-00219-RS Document555 Filed08/23/12 Page21 of 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 As noted during the Brown litigation, the few documents produced indicated5 numerous deficiencies, including the complete lack of training in the mixing of the chemicals. Defendants have never produced numerous training documents required to be maintained by the regulations such as chain of custody and sign in sheets, and have not produced any additional training materials since January of 2011. Defendants possess thiopental which was illegally imported and must be6 returned to the Food and Drug Administration (FDA). According to the San Mateo County District Attorney, Defendants do not have any of the second lethal injection drug, pancuronium bromide. (Drozdowski Decl. ¶ 5, Ex. A, Motion for Order of Execution, at 22.) ROBERT FAIRBANK’S MOTION TO INTERVENE AND FOR A STAY OF EXECUTION Case Nos.: 3:06-cv-219-RS; 3:06-cv-926-RS 18 enjoined, and the CDCR has been ordered to issue one that does comply with the APA. Nonetheless, the San Mateo County District Attorney has requested that a criminal court order the CDCR to bypass this process and execute Fairbank. There is proof that Defendant CDCR substantially deviated from its procedure in order to accelerate the execution of Brown. (See generally Exhibits to Dkt. 423.) 5 If an execution date is set for Fairbank in the near future, it is likely that Defendants will deviate from their ad hoc procedure once again in order to execute Fairbank. 6 The regulations suffer the deficiencies noted above and within the Complaint. B. Fairbank Will Suffer Irreparable Harm Fairbank faces execution pursuant to the same – or worse – Lethal Injection Protocol that already has required constitutional review by this Court sufficient to grant stays of execution for Morales, Brown, Sims, and Fields. Nothing has changed in this regard, and without a stay, Fairbank faces the real possibility of cruel and unusual capital punishment. In fact, Fairbank faces a possibly more inhumane execution because the San Mateo County District Attorney has asked the state criminal court to cobble together a procedure of unknown viability that will not have benefitted from the thorough and necessary review that this Court ordered in 2006, that the state courts have required be undertaken in accordance with the state APA, and that the Governor has requested be done anew in the Notice of Appeal. Case3:06-cv-00219-RS Document555 Filed08/23/12 Page22 of 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ROBERT FAIRBANK’S MOTION TO INTERVENE AND FOR A STAY OF EXECUTION Case Nos.: 3:06-cv-219-RS; 3:06-cv-926-RS 19 C. The Equities are in Fairbank’s Favor and Granting the Stay Furthers The Public’s Interest in Orderly Review As discussed above, Fairbank brings this request for a stay promptly after the United States Supreme Court denied his petition for certiorari and promptly after the San Mateo District Attorney filed the Motion for Order of Execution specifically aimed at Fairbank. There has been no delay. This Court granted intervention and a stay of execution for Sims and Fields, stating in relevant part: Both Sims and Fields are similarly situated to Morales and Brown in that they are condemned prisoners whose executions are not otherwise stayed and whose claims in their complaint in intervention are virtually identical to those asserted by Morales and Brown. Accordingly, Sims and Fields are entitled to intervene and, like Morales and Brown, to have their executions stayed until the present litigation is concluded. (Dkt. 473 at 2 (emphasis added).) Fairbank also currently has no stay of execution in any court. Furthermore, Fairbank requests that this stay be entered shortly in order to prevent the State of California from seeking to execute him before this Court has the opportunity to conduct an orderly review of any proposed protocol. In 2006, this Court stated that a thorough review of the process of executions was necessary and strongly suggested that the Governor take the lead in conducting this review. In 2010, the Ninth Circuit and this Court both ruled that the review process also requires independent and orderly judicial review. See Morales v. Cate, 623 F.3d 828, 829 (9th Cir. 2010) (“Timing is everything and the district court should take the time necessary to address the State’s newly revised protocol in accord with Supreme Court authority.”). State courts have ruled twice that the review of such protocol requires compliance with the state APA. Case3:06-cv-00219-RS Document555 Filed08/23/12 Page23 of 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ROBERT FAIRBANK’S MOTION TO INTERVENE AND FOR A STAY OF EXECUTION Case Nos.: 3:06-cv-219-RS; 3:06-cv-926-RS 20 The California Attorney General has expressed twice in this Court that executions will not be set until the Court’s review is completed. This assurance is meaningless to Fairbank, however, as the San Mateo District Attorney is currently seeking an execution date for Fairbank and the Attorney General has not granted Fairbank’s request to direct the district attorney to dismiss his Motion for Execution. Individual district attorneys should not be permitted to circumvent the process of review that this Court has determined must be conducted in order to comport with state law and the Constitution. A stay of execution here will prevent such circumvention. There is no equity that favors the type of “fire drill” approach to litigation that the Court saw in February 2006 and again in September 2010. V. Conclusion For the foregoing reasons, Fairbank respectfully requests that this Court grant both his motion to intervene and his motion to stay his execution and all preparations relating thereto. Respectfully submitted, SEAN K. KENNEDY Federal Public Defender MARK R. DROZDOWSKI MARGO A. ROCCONI ELIZABETH RICHARDSON-ROYER Deputy Federal Public Defenders DATED: August 23, 2012 By /s/ Mark R. Drozdowski MARK R. DROZDOWSKI Deputy Federal Public Defender Attorneys for Robert Fairbank Case3:06-cv-00219-RS Document555 Filed08/23/12 Page24 of 24