Morales v. Beard, et al

RESPONSE

N.D. Cal.September 6, 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 1 Defs.’ Opp’n Mot. Intervene and Stay of Execution (C 06-0219 RS) KAMALA D. HARRIS Attorney General of California THOMAS S. PATTERSON Supervising Deputy Attorney General MICHAEL J. QUINN State Bar No. 209542 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102-7004 Telephone: (415) 703-5726 Fax: (415) 703-5843 E-mail: Michael.Quinn@doj.ca.gov Attorneys for Defendants Brown, Cate, and Chappelle IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION MICHAEL ANGELO MORALES, Plaintiff, v. M. CATE, et al., Defendants. C 06-0219 RS DEFENDANTS’ OPPOSITION TO ROBERT FAIRBANK’S MOTION TO INTERVENE AND MOTION TO STAY EXECUTION Date: TBD Time: TBD Judge: The Honorable Richard Seeborg Trial Date None Set Action Filed: January 5, 2006 Case3:06-cv-00219-RS Document561 Filed09/06/12 Page1 of 6 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 2 Defs.’ Opp’n Mot. Intervene and Stay of Execution (C 06-0219 RS) INTRODUCTION The San Mateo District Attorney recently moved the San Mateo Superior Court for an order that would require condemned inmate Robert Fairbank to be executed by a one-drug lethal- injection method. In an attempt to obtain a stay against any such execution, Fairbank now seeks to intervene in this case, in which several condemned inmates are challenging California’s three- drug protocol and have obtained stays of their executions. But this Court should not permit Fairbank’s intervention. There are no common questions of law or fact between this case and the proceeding in San Mateo. And Fairbank’s interests in opposing the state’s three-drug protocol are already adequately represented by the current Plaintiffs. In addition, Fairbank’s motion to stay the execution must be denied. The motion is premature because no date has been set for Fairbank’s execution. Further, the relief that Fairbank seeks—a stay of a possible execution by a one-drug method—is plainly outside this case’s scope. I. THIS COURT SHOULD DENY FAIRBANK’S MOTION TO INTERVENE BECAUSE THIS CASE INVOLVES LETHAL INJECTION UNDER A THREE-DRUG PROTOCOL, AND THE MOTION TO SET AN EXECUTION DATE FOR FAIRBANK SEEKS THE USE OF A ONE- DRUG METHOD. Fairbank seeks to join “in the Morales Complaint in all its particulars as it currently is set forth.” (ECF No. 555, 15:7-8.) But the Complaint here attacks a lethal-injection protocol that is not currently in effect and would not be employed under the San Mateo District Attorney’s motion to set an execution date. (See 4th Am. Compl., ECF No. 428; see also ECF No. 555, 7:3- 11.) Accordingly, Fairbank does not have any claim that shares “a common question of law or fact” with this case. Fed. R. App. P. 24(b). The operative complaint in this case concerns title 15, section 3349 of the California Code of Regulations, and the adoption of twenty-two regulations related to the execution process. (See 4th Am. Compl., ECF No. 428.) However, on December 19, 2011, the Marin County Superior Court, in Sims v. CDCR, held that the regulations violated the APA and then issued a permanent injunction on February 21, 2012, prohibiting any lethal-injection executions until new regulations were enacted in compliance with the Administrative Procedure Act. (ECF No. 555, 10:18-11:2.) Case3:06-cv-00219-RS Document561 Filed09/06/12 Page2 of 6 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 3 Defs.’ Opp’n Mot. Intervene and Stay of Execution (C 06-0219 RS) Fairbank seeks to intervene in this case because the San Mateo District Attorney has initiated a proceeding that seeks to set his execution date. (ECF No. 555, 7:3-11.) Fairbank claims that intervention is critical to protect him from being executed. (Id. at 16:16-17:21.) But the District Attorney is seeking to have Fairbank executed using a single-drug method, not the three-drug protocol at issue in this case. (Id. at 7:3-11.) Therefore, there are no common questions of law or fact, and Fairbank’s motion to intervene must be denied. II. BECAUSE FAIRBANK’S INTERESTS IN OPPOSING THE CURRENTLY INVALIDATED THREE-DRUG PROTOCOL ARE ALREADY ADEQUATELY REPRESENTED BY THE CURRENT PLAINTIFFS, HE SHOULD NOT BE ALLOWED TO INTERVENE AT THIS STAGE. Federal Rule of Civil Procedure 24(a) provides that a person who files a timely motion must be permitted to intervene “unless existing parties adequately represent that interest.” Here, Fairbank has no evidence that the existing parties in this case cannot adequately represent his interests. The current Plaintiffs include condemned inmates Morales, Brown, Sims, and Fields. These inmates are in similar situations to Fairbank because they too are awaiting imposition of their judgment. The current Plaintiffs are already adequately representing Fairbank’s interests, and Fairbank has no evidence to the contrary. Thus, there is no need for Fairbank to intervene at this stage. III. THE MOTION TO STAY THE EXECUTION SHOULD BE DENIED. In addition to Fairbank’s failure to demonstrate a basis for intervention, his motion to stay the execution must be denied because Fairbank has not demonstrated a probability of success on the merits, or that he may suffer irreparable injury. See Sardi’s Rest. Corp. v. Sardie, 755 F.2d 719, 723 (9th Cir. 1985). A plaintiff is not entitled to a preliminary injunction unless he can show “either: (1) a combination of probable success on the merits and the possibility of irreparable injury or (2) the existence of serious questions going to the merits and that the balance of hardships tips sharply in his favor.” Id. The Supreme Court has stated that a motion for preliminary injunction carries with it a “requirement for substantial proof,” higher than even a motion for summary judgment. Mazurek v. Armstrong, 520 U.S. 968, 972 (1997). “[A] preliminary injunction is an extraordinary and drastic remedy, one that should not be granted Case3:06-cv-00219-RS Document561 Filed09/06/12 Page3 of 6 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 4 Defs.’ Opp’n Mot. Intervene and Stay of Execution (C 06-0219 RS) unless the movant, by a clear showing, carries the burden of persuasion.” Id. (quoting 11A Charles Alan Wright, Arthur R. Miller, & Mary Kay Kane, Federal Practice and Procedure § 2948, pp. 129-30 (2d ed. 1995)). In this case, Fairbank cannot show that he may suffer irreparable injury. The Sims injunction enjoins all lethal injections until CDCR promulgates a protocol in compliance with the APA. (ECF No. 555, 10:18-11:2.) Because there is no execution date scheduled, Fairbank’s motion is premature. Therefore, there is no evidence that Fairbank will suffer irreparable harm, and the motion to stay the execution must be denied. Additionally, the harm that Fairbank is concerned about does not relate to the issue in this case. Fairbank seems to argue that he would be harmed by potential deviation from CDCR’s currently enjoined three-drug protocol. (ECF No. 555, 22:14-19.) However, the issue before the San Mateo Superior Court is whether to impose a one-drug-lethal-injection method, and the only method at issue in this case is a three-drug method. Therefore, the relief Fairbank seeks is outside the scope of this case. On that basis, the motion to stay the execution must be denied. /// /// /// /// /// /// /// /// /// /// /// Case3:06-cv-00219-RS Document561 Filed09/06/12 Page4 of 6 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 5 Defs.’ Opp’n Mot. Intervene and Stay of Execution (C 06-0219 RS) CONCLUSION Fairbank’s motion seeks to enjoin proceedings that are not at issue in this case. The question before the San Mateo Superior Court is whether to impose a one-drug-lethal-injection method, while the only method at issue in this case is a three-drug method. Thus, Fairbank has not demonstrated a common issue of law or fact that would serve as a basis for intervention. Nor has he met his burden of proof to obtain a stay of execution. For these reasons, Fairbank’s motion must be denied. Dated: September 6, 2012 Respectfully submitted, KAMALA D. HARRIS Attorney General of California THOMAS S. PATTERSON Supervising Deputy Attorney General s/ Michael J. Quinn MICHAEL J. QUINN Deputy Attorney General Attorneys for Defendants Brown, Cate, and Chappelle SF2007200210 20633961.doc Case3:06-cv-00219-RS Document561 Filed09/06/12 Page5 of 6 CERTIFICATE OF SERVICE Case Name: Michael Angelo Morales v. M. Cate, et al. No. C 06-0219 JF I hereby certify that on September 6, 2012, I electronically filed the following documents with the Clerk of the Court by using the CM/ECF system: DEFENDANTS’ OPPOSITON TO ROBERT FAIRBANK’S MOTION TO INTERVENE AND MOTION TO STAY EXECUTION I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the CM/ECF system. I declare under penalty of perjury under the laws of the State of California the foregoing is true and correct and that this declaration was executed on September 6, 2012, at San Francisco, California. D. Criswell s/ D. Criswell Declarant Signature 20636213.doc Case3:06-cv-00219-RS Document561 Filed09/06/12 Page6 of 6