13 F.4th 857
9th Cir.2021Background
- In 2006 Michael Morales sued, alleging California’s lethal‑injection protocol violated the Eighth Amendment; the district court found critical deficiencies and executions were effectively stayed.
- CDCR promulgated new protocols (2010, then 2018); state‑court litigation under the Cal‑APA and Proposition 66 followed, leaving the federal Morales litigation focused on the 2018 protocol.
- In 2018 the District Attorneys of San Bernardino, San Mateo, and Riverside sought to intervene to defend the 2018 protocol and to vacate individual stays; the district court denied intervention as of right and permissive intervention.
- While the DAs’ appeal was pending, Governor Newsom withdrew the protocol, imposed an execution moratorium, and the parties stipulated to a voluntary dismissal with a Reinstatement Stipulation that allows revival if specified events occur.
- The Ninth Circuit held the appeal was not moot (Executive Order and stipulated dismissal did not satisfy the heavy burden for mootness) and affirmed the district court’s denial of intervention as of right; it also held the district court did not abuse its discretion in denying permissive intervention.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Governor Newsom’s Executive Order moots the DAs’ appeal (voluntary cessation) | DAs: Not moot; EO could be withdrawn and executions could resume under current or successor protocol | State: EO withdrew the protocol, closed chamber and moratorium mean the challenged conduct won’t recur | Not moot — defendants failed to show the challenged conduct cannot reasonably be expected to start up again (heavy burden not met) |
| Whether the parties’ stipulated voluntary dismissal moots the appeal | DAs: Not moot; Reinstatement Stipulation allows revival and Rule 60(b) remedies would remain if we reversed | State: Dismissal leaves no live suit to intervene in, so appeal is moot | Not moot — dismissal did not preclude effective relief; stipulation allows revival and Rule 60(b) relief |
| Whether the DAs may intervene as of right under Fed. R. Civ. P. 24(a) (significant protectable interest & inadequate representation) | DAs: They have statutory/prosecutorial interests in effectuating death sentences (general prosecutorial duties and Cal. Penal Code §3604.1(c)) and AG’s goals conflict with DAs’ interests | State/AG: DAs lack authority to choose or defend methods of execution; Attorney General represents the State’s interests; DAs’ interests are at most incidental | DAs do not have a significant protectable interest in the method‑of‑execution challenge; denial of intervention as of right affirmed |
| Whether the DAs may permissively intervene under Fed. R. Civ. P. 24(b) | DAs: Share common legal/factual questions about execution protocol and timely moved to intervene | State: No common question because DAs weren’t involved in protocol drafting; intervention would delay proceedings and invite many other DAs to intervene | Denial of permissive intervention was within the district court’s discretion; that portion of the appeal dismissed |
Key Cases Cited
- Bell v. City of Boise, 709 F.3d 890 (9th Cir. 2013) (voluntary cessation mootness standard; heavy burden on defendant)
- Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167 (2000) (mootness and redressability principles)
- Baze v. Rees, 533 U.S. 35 (2008) (Eighth Amendment method‑of‑execution framework)
- United States v. Sprint Commc’ns, Inc., 855 F.3d 985 (9th Cir. 2017) (settlement/dismissal after denial of intervention does not automatically moot putative‑intervenor’s appeal)
- Morales v. Tilton, 465 F. Supp. 2d 972 (N.D. Cal. 2006) (district court’s earlier ruling finding deficiencies in California protocol)
- Morales v. Cate, 623 F.3d 828 (9th Cir. 2010) (remand under Baze and discussion of stays)
- West Coast Seafood Processors Ass’n v. Nat. Res. Def. Council, Inc., 643 F.3d 701 (9th Cir. 2011) (appeal moot where underlying litigation was fully resolved)
- Wilderness Soc’y v. U.S. Forest Serv., 630 F.3d 1173 (9th Cir. 2011) (Rule 24(a) four‑part test)
- Alisal Water Corp. v. U.S. (In re Alisal Water Corp.), 370 F.3d 915 (9th Cir. 2004) (significant protectable interest standard for intervention)
- Church of Scientology of Cal. v. United States, 506 U.S. 9 (1992) (discussion of effectual relief for intervenors)
- In re Hunter, 66 F.3d 1002 (9th Cir. 1995) (Rule 60(b) relief and post‑dismissal remedies)