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Sims v. Department of Corrections and Rehabilitation

California Court of Appeals, First District, Second Division

May 30, 2013

MITCHELL SIMS et al., Plaintiffs and Respondents,

Marin County Super. Ct. No. CIV 1004019, Honorable Faye D’Opal, Judge.

Attorneys for Appellants: Kamala Harris, Attorney General Jonathan Wolff, Sr. Asst. Atty. General Thomas S. Patterson, Super. Deputy A.G. Mitchell J. Quinn, Deputy Attorney General.

Attorneys for Respondents: Arnold & Porter LLP Steven L. Mayer Julian Y. Waldo Ginamarie Caya.

Kline, P.J.

The question presented by this appeal is whether regulations promulgated by the California Department of Corrections and Rehabilitation (CDCR or agency) regarding the manner in which the death penalty is carried out substantially comply with the California Administrative Procedure Act (APA) (Gov. Code, § 11340 et seq.).[1] Finding that the CDCR “substantially failed to comply” with mandatory procedural requirements of the APA, the trial court invalidated the regulations in their entirety. (§ 11350, subd. (a).) We shall affirm the judgment.


California law, which provides for capital punishment, offers persons sentenced to death a choice between execution by lethal injection or by lethal gas. (Pen. Code, § 3604, subd. (b).) The responsibility to develop procedures for administering both forms of execution lies with the CDCR. (Pen. Code, § 3604, subd. (a).)

Until 2006, the CDCR’s standards for conducting lethal injections were set forth in a procedural manual known as Operational Procedure 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.) 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, when the CDCR submitted to the Office of Administrative Law (OAL), and made available to the public upon request, a draft regulation[4] and notice of proposed regulatory action, as well as an “initial statement of reasons” (ISOR) explaining the rationale of the proposed regulations. (§ 11346.2, subds. (a), (b).) The agency also posted notice of the proposed rulemaking in all of the state’s prisons, including multiple postings in San Quentin Prison, where executions are carried out and condemned male prisoners are housed. During the initial 60-day period of public comment and two subsequent periods additionally allowed, the CDCR received a total of 29, 416 letters, facsimiles and emails from the public. At a six-hour public hearing in Sacramento on June 30, 2009, 102 people expressed their views on the proposed regulations.

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 (§§ 11342.2, 11342.580, 11349) and several APA procedural requirements. On June 11, the CDCR published another notice to the public addressing the issues the OAL had raised, allowing a 15-day comment period. On July 6, the CDCR resubmitted modified regulations, which were approved by the OAL on July 30. The regulations, now set forth in California Code of Regulations, title 15, sections 3349 through 3349.4.6, took effect 30 days later, on August 29, 2010.


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.” (§ 11342.2.) A regulation “may be declared to be invalid for a substantial failure to comply with [the APA]” or if the determination of the promulgating agency that it is reasonably necessary to effectuate the purpose of the statute “is not supported by substantial evidence.” (§ 11350, subds. (a), (b)(1).)[5]

On August 2, 2010, respondent Mitchell Sims filed a complaint seeking declarative and injunctive relief.[6] The first cause of action alleged that several significant provisions of the regulations approved by the OAL “are entirely unnecessary to effectuate the purpose of Penal Code section 3604[, subdivision] (a)[7] and impose undue burdens on those effected by the regulations.” The gist of the claim is that the use of one of the three drugs in the three-drug regulatory formula—pancuronium bromide, a neuromuscular agent that paralyzes the body’s voluntary muscles—“is unnecessary and dangerous, and serves only to increase the risk that the condemned person will suffer excruciating pain” and “the rulemaking file makes clear that there are no countervailing benefits or compelling reasons to use pancuronium bromide as part of the execution process.”

After finding that the rulemaking file contained substantial evidence favorable to the use of pancuroniam 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 effectuate 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 section 11350, subdivision (a).

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) (§ 11346.9) its consideration and rejection of alternatives to the three-drug protocol, as required by sections 11346.2, subdivision (b)(3), and 11346.9, subdivision (a)(3), and falsely represented that it relied on the Supreme Court decision in Baze, supra, 553 U.S. 35, which validated a three-drug lethal injection method of capital punishment but had not been decided when the CDCR rejected alternatives to that method; (2) failed to make the complete rulemaking file available to the public for inspection as of the date the notice of proposed action was published (§ 11347.3), and delayed making the rulemaking file available until June 11, 2009, six weeks after publication of the notice of proposed action, when fewer than three weeks remained in the comment period; (3) failed to identify the latest version of OP 770 as the primary basis of the proposed lethal injection protocol; (4) failed to summarize and respond to about two dozen written comments specifically directed at the agency’s proposed action explaining whether and how the proposed regulations had been changed to accommodate each objection or recommendation, as required by section 11346.9, subdivision (a)(3); and (5) included irrelevant information in the rulemaking file made available to the public.

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.


A regulation “may be declared to be invalid for a substantial failure to comply with [the APA].” (§ 11350, subd. (a), italics added.)

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, ...

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