MITCHELL SIMS et al., Plaintiffs and Respondents, v. DEPARTMENT OF CORRECTIONS AND REHABILITATION et al., Defendants and Appellants.
No. A135290
First Dist., Div. Two.
May 30, 2013.
168 Cal.App.4th 729 | 85 Cal.Rptr.3d 724 | 1059
Kamala D. Harris, Attorney General, Jonathan Wolff, Assistant Attorney General, Thomas S. Patterson and Michael J. Quinn, Deputy Attorneys General, for Defendants and Appellants.
Arnold & Porter, Steven L. Mayer, Julian Y. Waldo and Ginamarie Caya for Plaintiffs and Respondents.
OPINION
KLINE, P. J.—The question presented by this appeal is whether regulations promulgated by California‘s Department of Corrections and Rehabilitation (CDCR or agency) regarding the manner in which the death penalty is carried out substantially comply with California‘s Administrative Procedure Act (APA) (
BACKGROUND
California law, which provides for capital punishment, offers persons sentenced to death a choice between execution by lethal injection or by lethal
Until 2006, the CDCR‘s standards for conducting lethal injections were set forth in a procedural manual known as San Quentin Operational Proсedure No. 0-770 (OP 770). In December of that year a federal court ruled that the protocol prescribed by OP 770 violated the Eighth Amendment‘s prohibition against cruel and unusual punishment. (Morales v. Tilton (N.D.Cal. 2006) 465 F.Supp.2d 972.) In order to cure this deficiency, the CDCR substantially revised OP 770 on May 15, 2007.
Later that year, condemned inmates filed a complaint in the Marin County Superior Court contending that any procedure employed to carry out the death penalty must be adopted through the regulatory approval process prescribed by the APA, rather than as an agency operational procedure. The superior court agreed. Finding that the revised version of OP 770 constituted an “underground regulation,”2 the court enjoined the CDCR from executing condemned inmates by lethal injection “unless and until” the applicable regulations were enacted in “full compliance with the Administrative Procedure Act.” The CDCR appealed and, in 2008, Division Five of this court affirmed the trial court‘s decision. (Morales v. California Dept. of Corrections & Rehabilitation (2008) 168 Cal.App.4th 729 [85 Cal.Rptr.3d 724].) In response to that ruling, the CDCR undertook to promulgate a lethal injection protocol through the APA rulemaking process.3
The process commenced on May 1, 2009, whеn the CDCR submitted to the Office of Administrative Law (OAL), and made available to the public
On January 4, 2010, the CDCR provided public notice of modifications to the proposed regulation in response to the written comments it had received, and set a 15-day comment period on the modifications. On April 29 of that year, the CDCR submitted the new regulations for review by the OAL. On June 8, the OAL disapproved the regulations, finding, among other things, that CDCR had failed to comply with the clarity, consistency and necessity standards of the APA (
PROCEEDINGS BELOW
Under the APA, “no regulation adopted is valid or effective unless consistent and not in conflict with the statute and reasonably necessary to effectuate the purpose of the statute.” (
After finding that the rulemaking file contained substantial evidence favorable to the use of pancuronium bromide, or confirmed the experience of other states that proper application of the same three-drug formula authorized by the regulations “will result in a rapid death of the inmate without undue pain or suffering,” the trial court, on December 19, 2011, denied respondents’ motion for summary judgment on their first cause of action alleging no substantial evidence showing the use of pancuronium bromide “reasonably necessary” to effectuatе the purpose of the proposed regulations.
However, in the same ruling, the trial court granted respondents’ motion for summary judgment with respect to the second cause of action and invalidated the regulations, based upon its finding that undisputed evidence shows that the CDCR “substantial[ly] fail[ed] to comply with the mandatory procedural requirements of the Administrative Procedure Act” when it adopted the regulations, in violation of
The CDCR admitted below, as it does here, that it did not actually comply with many of the requirements of the APA that respondents claim constitute a substantial failure to comply. Specifically, the CDCR admitted it (1) failed to explain in the ISOR and “final statement of reasons” (FSOR) (
After respondents voluntarily dismissed the first cause of action, the judgment invalidating the regulations for substantial failure to comply with the requirements of the APA was entered on February 21, 2012. The court permanently enjoined the CDCR from administering executions by lethal injection until new regulations were promulgated in compliance with the APA, and also from administering executions by lethal gas until regulations applicable to that method of execution were properly adopted. The CDCR was also permanently enjoined from administering the execution of any condemned female inmate until applicable regulations were promulgated that complied with the requirements of the APA.
The CDCR filed a timely notice of appeal on April 26, 2012.
THE TRIAL COURT‘S RULING
A regulation “may be declared to be invalid for a substantial failure to comply with [the APA].” (
The trial court‘s 17-page final ruling granting summary judgment identified and discussed its reasons for concluding that, “collectively, if not singly,” the deficiencies in the CDCR‘s rulemaking process “constitute a substantial failure . . . to comply with procedures mandated by the Administrative Procedures Act,” requiring invalidation of the regulations regarding lethal injection in their entirety.
The deficiencies in the CDCR‘s rulemaking process the court believed most clearly “substantial,” and sufficient in and of themselves to warrant invalidation of the proposed regulation in its entirety, relate to APA requirements that agencies proposing regulations timely provide the interested public certain types of relevant information. The court found that the ISOR and
The failure to forthrightly discuss alternatives to the three-drug method was particularly significant, the court stated, because many who commented upon the proposed regulations had claimed that use of pancuronium bromide was unnecessary, dangerous, and created a risk of excruciating pain, or had raised the issue of a barbiturate-only protocol; the CDCR had taken the position in a federal lawsuit that a single-drug formula consisting of five grams of sodium thiopental was sufficient to cause death in a constitutional manner; and the CDCR‘s expert had recommended adoption of a single-drug formula.
The court also found the CDCR substantially failed to make the complete rulemaking file available for public inspection in the timely manner required by the APA. (
The trial court‘s determination that the CDCR substantially failed to comply with the APA also rested on the agency‘s failure to respond to public comments in the manner and as fully as the APA requires. The APA provides that an agency‘s FSOR “shall include . . . [¶] . . . [¶] . . . [a] summary of each objection or recommendation made regarding the specific adoption proposed, together with an explanation of how the proposed action has been changed to accommodate each objection or recommendation, or the reasons for making no change.” (
Concluding that the foregoing deficiencies, all of which were supported by “undisputed evidence,” “infect[ed] the entire regulatory scheme” prescribed
The trial court found the CDCR also failed to comply with the APA in other respects, but these deficiencies only justified the invalidation of individual regulations, or the addition of information improperly omitted from the regulation (such as the fiscal impact of the regulation), not invalidation of the regulations in their entirety. Thus the court found the CDCR violated the APA requirement that it explain why a regulatory provision “is reasonably necessary to carry out the purpose and address the problem for which it is proposed” (
The court also found that “some” of the regulations did not comply with the APA-mandated standard of “clarity,” which requires that regulations be written or displayed so that their meaning “will be easily understood by those persons directly affected by them.” (
The trial court also agreed with respondents that the CDCR‘s notice of proposed adoption of regulation failed to estimate the additional costs or savings it would incur in reasonable compliance with the proposed regulation, as required by the APA. (
Lastly, although the court ruled that “[t]he all-male plaintiffs do not have standing to raise the [e]qual [p]rotection challenges on behalf of condemned
STANDARD OF REVIEW
“On appeal, we exercise ‘an independent assessment of the correctness of the trial court‘s ruling, applying the same legal standard as the trial court in determining whether there are any genuine issues of material fact or whether the moving party is entitled to judgment as a matter of law.‘” (Seo v. All-Makes Overhead Doors (2002) 97 Cal.App.4th 1193, 1201 [119 Cal.Rptr.2d 160], quoting Iverson v. Muroc Unified School Dist. (1995) 32 Cal.App.4th 218, 222 [38 Cal.Rptr.2d 35].) As respondents correctly point out, where, as here, neither party claims there are any triable issues of material fact, the appellate court independently interprets and applies the law to undisputed facts. That is, “[i]n the context of a motion for summary judgment, questions of law include whether a triable issue of material fact exists and whether the moving party is entitled to judgment as a matter of law.” (Coburn v. Sievert (2005) 133 Cal.App.4th 1483, 1492 [35 Cal.Rptr.3d 596], citing
We also agree with respondents that courts reviewing regulations for compliance with the APA owe no deference to the promulgating agency‘s opinion that it complied with the prescriptions of the APA. The CDCR does not contest this point. As we noted in California Advocates for Nursing Home Reform v. Bontá (2003) 106 Cal.App.4th 498 [130 Cal.Rptr.2d 823], “‘Agencies are not normally delegated power to determine authoritatively whether they complied with generally applicable rule-making procedures [.] As a result, courts may usually determine the lawfulness of agencies’ compliance with those rule-making procedures entirely de novo, simply substituting their judgment on that question for that of the agencies.‘” (Id. at p. 506, quoting Bonfield, State Administrative Rule Making (1986) § 9.2.12, p. 582.) Additionally, a court reviewing regulations for compliance with the APA “shall not” consider the approval of the regulations by OAL “in any action for declaratory relief.” (
ANALYSIS
The CDCR contends (1) there was no substantial failure to comply with the APA because the high level of public participation in the rulemaking
I.
As we have said, the judgment rests on a provision of the APA stating that a “regulation . . . may be declared to be invalid for a substantial failure to comply with this chapter . . . .” (
The CDCR argues that its failure to “fully comply with every technical requirement” of the APA constitutes harmless error because it did not prevent the agency from achieving what the CDCR considers the overarching purpose of the APA: “providing an opportunity for those affected by the regulation to provide input about it.” Emphasizing the “wealth of public participation” the agency afforded, the CDCR points out that it responded to 29,416 separate pieces of correspondence submitted by groups and individuals interested in the proposed lethal injection protocol, posted notice of the regulatory action in all 33 California prisons, and held a lengthy hearing at which 102 people provided input.
The CDCR‘s view of the purpose of the APA is far too limited and simplistic. It is of course true, as the CDCR repeatedly reminds us, that the APA is designed “to provide a procedure whereby people to be affected may be heard on the merits of proposed rules” (Armistead v. State Personnel Board (1978) 22 Cal.3d 198, 204 [149 Cal.Rptr. 1, 583 P.2d 744]), and to ensure “meaningful public participation in the adoption of administrative regulations by state agencies” (California Optometric Assn. v. Lackner (1976) 60 Cal.App.3d 500, 506 [131 Cal.Rptr. 744]; see Voss v. Superior Court (1996) 46 Cal.App.4th 900, 908–909 [54 Cal.Rptr.2d 225]). But affected people cannot be thought to have been heard “on the merits,” and public participation cannot be considered “meaningful,” simply because large numbers of interested people were provided an opportunity to be heard. The public participation contemplated by the APA is not a numbers game. A hearing is “on the merits” and “meaningful” only if the interested public has timely received all available information that is relevant to the proposed regulations, accurate, and as complete as reasonably possible. The public that participated in the CDCR‘s rulemaking process was not so fully informed.
The “enormous amount of public participation” for which the CDCR takes credit—which was undoubtedly primarily attributable to the high level of public interest in the death penalty—cannot diminish the significance of these failures; otherwise, rulemaking in areas of high public interest would be subject to a less rigorous standard of compliance than that applicable to rulemaking in areas of lesser interest to the public, which would be absurd. More importantly, the aim of the APA is not just a high level of public participation in the rulemaking process, but a high level of ”meaningful” participation in that process. (California Optometric Assn. v. Lackner, supra, 60 Cal.App.3d at p. 506, italics added; see Voss v. Superior Court, supra, 46 Cal.App.4th at pp. 908–909.) Meaningful public participation on the merits of a proposed regulation takes place only when there is actual compliance with the “basic minimum procedural requirements for the adoption, amendment, or repeal of administrative regulations” established under the APA. (
Because undisputed evidence shows there was not “actual compliance” with the basic minimum procedural requirements for the adoption of administration regulations established by the APA, we shall affirm the judgment insofar as it invalidates the CDCR‘s proposed regulations in their entirety for substantial failure to comply with requirements imposed by
II.
As previously explained, the trial court found that particular provisions of the proposed regulations failed to comply with the “necessity” and “clarity” requirements of the APA. The CDCR claims the trial court lacked authority to make these findings because the question whether proposed regulations satisfy these requirements is committed to the OAL, not the courts. Respondents disagree, but claim we should not address the issues because the CDCR failed to raise them in the trial court. The CDCR concedes it did not raise the
We agree with the CDCR that the issue whether an OAL finding of compliance with the “necessity” and “clarity” requirements of the APA is subject to judicial review is a matter of continuing public interest. It may also continue to be an issue in the rulemaking procedure mandated by our decision in this case, and is briefed by the parties. For these reasons we shall address the issue.
The necessity and clarity requirements are dealt with in three different portions of the APA, which appear in articles 5, 6, and 8 of title 2, division 3, part 1, chapter 3.5 of the Government Code.
As earlier noted,
The CDCR‘s claim that the review of regulations for “necessity” and “clarity” is exclusively committed to the OAL cannot be squared with the scheme described by the foregoing provisions of the APA. To begin with,
Like the United States Supreme Court, the California Supreme Court has emphasized that a strong presumption in favor of judicial review operates when it is claimed that an administrative agency‘s action is in excess of its delegated powers and contrary to a specific statutory prohibition. (International Assn. of Fire Fighters, Local 188, AFL-CIO v. Public Employment Relations Bd. (2011) 51 Cal.4th 259, 270 [120 Cal.Rptr.3d 117, 245 P.3d 845] (International Assn. of Fire Fighters), citing Leedom v. Kyne (1958) 358 U.S. 184, 188 [3 L.Ed.2d 210, 79 S.Ct. 180].) Accordingly, California courts “will not infer a legislative intent to entirely deprive the superior courts of judicial authority in a particular area; the Legislature must have expressly so provided or otherwise clearly indicated such аn intent. [Citations.]” (International Assn. of Fire Fighters, at p. 270, citing, e.g., Garrison v. Rourke (1948) 32 Cal.2d 430, 435–436 [196 P.2d 884].)
The Legislature that enacted the APA not only failed to indicate any intent to deprive the superior courts of authority to review an agency‘s compliance with a provision of the APA after a finding by the OAL that the agency had complied; it unambiguously indicated the opposite intent.
Finally, the Legislature knows how to insulate a provision of the APA from judicial review when it wants to do so.
The CDCR‘s contention that responsibility to review a regulation for “clarity” or “necessity” “belongs solely to the Office of Administrative Law” rests entirely on our opinion in California Assn. of Medical Products Suppliers v. Maxwell-Jolly (2011) 199 Cal.App.4th 286 [131 Cal.Rptr.3d 692] (CAMPS). In that case, the trial court denied a trade association‘s petition for writ of mandate and complaint for declaratory and injunctive relief, in which it sought the invalidation of regulations adopted by the State Department of Health Care Services to set upper billing limits (UBL) for providers of certain medical equipment and supplies to Medi-Cal recipients. The plaintiff in CAMPS argued that the department‘s adoption of the UBL was outside its statutory authority and asked us to invalidate it because, among other alleged deficiencies, it lacked the minimum level of “clarity” required by the APA. We rejected the argument because we agreed with the department that the issue “is for the Office of Administrative Law, not this court, to review pursuant to
CAMPS does not assist the CDCR because it does not address the pertinent substantive legal issues. To begin with, we did not in CAMPS question the appropriateness of our adjudicating the plaintiff‘s claim that the department violated the “necessity” requirement of the APA. Concluding the UBL was “a rational response to the Department‘s efforts to prevent fraud and abuse . . .
Nor do we think Pulaski v. Occupational Safety & Health Stds. Bd. (1999) 75 Cal.App.4th 1315 [90 Cal.Rptr.2d 54] (Pulaski), which we relied on in CAMPS, applicable to the case at hand. Pulaski held that a trial court abused its discretion in striking a provision in a regulation as “unnecessary surplusage and ambiguous” because “it was not the court‘s function to clarify the standard . . .” for the administrative board, since “[t]he Legislature has expressly delegatеd to the OAL the responsibility for reviewing proposed regulations for ‘clarity,’ ‘consistency’ and ‘nonduplication.’ (
There was no such abuse of discretion in the present case, as the trial court did not alter, amend, or clarify any OAL regulation. With respect to “necessity,” it simply determined the ISOR “fail[ed] to describe the purpose and/or the rationale for the agency‘s determination” that it was necessary to monitor the inmate continuously for five days prior to execution, and to document this every 15 minutes; to remove all personal property from the inmate‘s cell; and to bind inmates with waist restraints during visits. In making this ruling, the trial court cited not just the mandate of
With respect to “clarity,” the trial court found that some of the regulations will not be “easily understood by those persons directly affected by them” (
In making these rulings, the court cited provisions of OAL‘s regulatory guidelines establishing that “[a] regulation shall be presumed not to comply with the ‘clarity’ [requirement of Government Code section 11349.1]” if, among other things, “the regulation can, on its face, be reasonably and logically interpreted to have more than one meaning . . .” or “the language of the regulation conflicts with the agency‘s description of the effect of the regulation . . . .” (
We conclude that, as a matter of law, the OAL‘s finding that proposed regulations comply with the “necessity” and “clarity” requirements—or comply with any of the other requirements the OAL is directed to review under
III.
The CDCR claims the trial court erred by “incorrectly conclud[ing] that the APA required the CDCR to provide an assessment of the regulations’ fiscal impact.”
The CDCR does not advance this claim in the form of legal argument. Its contention that it should not be required to comply with this requirement is set forth in its opening brief in a single paragraph consisting of four sentences, none of which advert to any case, statute, regulation, or other legal authority.14 “‘Appellate briefs must provide argument and legal authority for the positions taken. “When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived.” ’ (Nelson v. Avondale Homeowners Assn. (2009) 172 Cal.App.4th 857, 862 [91 Cal.Rptr.3d 726].) ‘We are not bound to develop appellants’ arguments for them. [Citation.] The absence of cogent legal argument or citation to authority allows this court to treat the contention as waived.’ (In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 830 [79 Cal.Rptr.3d 588]; see also Associated Builders & Contractors, Inc. v. San Francisco Airports Com. (1999) 21 Cal.4th 352, 366, fn. 2 [87 Cal.Rptr.2d 654, 981 P.2d 499]; People v. Stanley (1995) 10 Cal.4th 764, 793 [42 Cal.Rptr.2d 543, 897 P.2d 481].)” (Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956 [124 Cal.Rptr.3d 78].) We could consider this argument waived, but we can easily dispose of it on the merits.
The APA states that the notice of proposed adoption of a regulation “shall include” an estimate of the “additional costs or savings, both direct and indirect, that a public agency necessarily incurs in reasonable compliance with [the proposed] regulations.” (
IV.
In its final ruling, the trial court pointed out that the CDCR has not promulgated regulations pertaining to execution by means of lethal gas or the execution in any way of female condemned inmates, and therefore no regulatory authority “to carry out the execution of condemned inmates by lethal gas, or to execute any condemned female inmate.” Apparently on this basis, the judgment executed and filed by the court declares that CDCR “is permanently enjoined from carrying out the execution of any condemned inmate by lethal gas unless and until regulations governing execution by lethal gas are drafted and approved following successful completion of the APA review and public comment process,” and also “permanently enjoined from carrying out the execution of any female inmate unless and until regulations governing the execution of female inmates are drafted and approved” pursuant to the APA.
The CDCR claims it was error to enjoin it from carrying out executions by means of lethal gas and of female condemned inmates because respondents challenged only the lethal injection regulations,15 and the trial court found that respondents lacked standing to raise claims concerning condemned female inmates. The issues of execution by lethal gas and execution of condemned female inmates were raised below in connection with respondents’ claim that the proposed regulation incorporated documents pertaining to
Apparently on the basis of this judicial observation, the judgment, which at the request of the court was prepared by respondents’ counsel, permanently enjoins the CDCR “from carrying out the execution of any condemned inmate by lethal gas” and “from carrying out the execution of any female inmate” unless and until regulations governing these matters “are drafted and approved following successful completion of the APA review and public comment process.”
So far as the record shows, the CDCR has never indicated any intent to execute cоndemned inmates by means of lethal gas, or to execute female condemned inmates in any manner, before it has promulgated regulations pertaining to such executions that comply with the requirements of the APA. Indeed, in response to our inquiry, the CDCR has here specifically acknowledged that, under Morales v. California Dept. of Corrections & Rehabilitation, supra, 168 Cal.App.4th 729, it cannot execute condemned female inmates or carry out any executions by lethal gas without promulgating regulations regarding such executions that comply with that act. Since these matters have never been placed at issue in this litigation, the trial court‘s comments regarding execution by means of lethal gas and the execution of female condemned inmates are gratuitous, as are the related provisions of paragraphs 4 and 5 of the judgment. This case is simply not among those in which the granting of injunctive relief is statutorily authorized. (
DISPOSITION
For the foregoing reasons, paragraphs 4 and 5 of the judgment are hereby vacated. The judgment is affirmed insofar as it declares that the CDCR‘s lethal injection protocol (
Each party shall bear its own costs on appeal.
Lambden, J., and Richman, J., concurred.