Cal. App. Dumps ACLU Suit in Execution Controversy

Three years ago, three California District Attorneys sought to intervene in the long-running federal litigation over California’s lethal injection method. The Attorney General, in his role as attorney for the head of the prison department, was not properly representing the people of the State as the plaintiff in the underlying criminal cases, in their view. The federal district court refused intervention, and the DAs appealed to the Ninth Circuit.

Last Friday, the ACLU filed a petition for writ of mandate in the California Court of Appeal for the First District, which covers the northern part of the San Francisco Bay Area and the north coast. They asked the state court to restrain the DAs from litigating in federal court. See this press release, with a link to the petition.

Yesterday, a mere two business days after the petition was filed, the Court of Appeal dismissed it. They did not even wait for the DAs to respond.

The suit was strange. The issues of whether the DAs have standing and capacity are squarely before the Ninth Circuit and have been thoroughly briefed. The question of whether the dismissal, with strings, of the underlying suit moots the intervention question has also been briefed.

Why file a state court suit? The ACLU complains that the Ninth cannot make a definitive ruling on the state law question. It can, of course, decide state law questions in judgments that are binding on the parties, but they are not binding precedents in future suits in state courts. So what? This unique situation has not occurred before, and it may never occur again. If a definitive precedent on state law is needed, the proper procedure is for the Ninth to certify the question to the California Supreme Court.

Why is this suit being filed nearly three years after the initial intervention motion? The petition doesn’t say.

The cover of the motion says, “IMMEDIATE RELIEF REQUESTED.” Such requests are typically justified by consequences both dire and imminent, such as “Petitioner will be executed tomorrow if relief is not granted.”

What is the justification for immediate relief in this case? “Prompt resolution of this issue raised herein is necessary as the underlying litigation has recently been dismissed pursuant to the Stipulated Resolution.” Recently? The Stipulated Resolution was filed seven months ago.  Further, the stipulation did not affect the issue the ACLU wanted 1DCA to resolve, the capacity of the DAs to intervene in the civil suit. It’s main effect that is relevant here was to raise a mootness question, something well within the province of the Ninth Circuit to decide.

California’s courts are generally pretty friendly to the ACLU’s viewpoint these days, and the First District Court of Appeal may be the friendliest of all. But even that court dumped this petition in the garbage, and appropriately so.

Why was this petition filed at all? Is the ACLU worried that the Newsom recall effort will succeed, and California might get a governor who takes seriously his constitutional duty to execute the laws? Is there some other reason? It’s a mystery.

Update (3/11): Bob Egelko has this article in the SF Chronicle, but it’s behind a paywall.