Opinion
NOT TO BE PUBLISHED
Marin County Super. Ct. No. CV061436
THE COURT:Petitioners California Department of Corrections and Rehabilitation (CDCR) and Matthew Cate, the CDCR Secretary (collectively referred to herein as petitioners) seek writ relief from an order restraining them from carrying out lethal injections of condemned inmates until respondent superior court dissolves a previously issued injunction. We grant the writ petition for the reasons expressed below.
BACKGROUND
In the action giving rise to this writ proceeding, two inmates condemned to death, real parties in interest Michael Morales and Mitchell Sims (real parties), challenged a protocol issued by petitioners governing the execution of condemned inmates by lethal injection, known as San Quentin Operational Procedure 0-770 (hereafter OP 770). Real parties argued OP 770 had been adopted without compliance with the Administrative Procedures Act (APA, Gov. Code, § 11340 et seq.). The superior court’s November 2007 judgment granting real parties’ summary judgment motion agreed, and issued an injunction providing that the CDCR “is permanently enjoined from carrying out the lethal injection of any condemned inmates under OP 770 unless and until OP 770 is promulgated as a regulation in full compliance with the [APA].” On petitioners’ appeal, we affirmed the superior court’s judgment. (Morales v. California Dept. of Corrections & Rehabilitation (2008) 168 Cal.App.4th 729.)
Thereafter, in an effort to comply with the injunction, petitioners promulgated regulations pursuant to the APA governing the procedures for execution of death sentences by lethal injection at San Quentin State Prison. (Cal. Code Regs., tit. 15, § 3349 et seq.) The State of California Office of Administrative Law (OAL) issued a “Notice of Approval of Regulatory Action” pertaining to those regulations on July 30, 2010, indicating that the regulations would become effective on August 29, 2010. A certified copy of the regulations was filed with the Secretary of State on July 30, 2010.
On August 2, 2010, real party Sims (Sims) filed, in a separate action, a complaint for declaratory and injunctive relief in the Marin County Superior Court (case No. CIV1004019), seeking a determination that the new lethal injection regulations were not promulgated in compliance with the APA.
On August 4, 2010, Sims received notice that pursuant to the People’s request, the Los Angeles County Superior Court would soon schedule a date for his execution. Shortly thereafter, Sims filed a motion in respondent Marin County Superior Court to enforce that court’s November 2007 injunction (hereafter referred to as the injunction). Sims argued that the injunction prohibited the CDCR from carrying out lethal injections of condemned inmates until OP 770 was promulgated as a regulation in full compliance with the APA. Sims further maintained that no executions could occur until the court resolves Sims’s recently filed action challenging the validity of the newly promulgated regulations. Sims also posited that proper procedure required the CDCR to bring a motion to dissolve the injunction, even though it could not prevail on such a motion.
Petitioners opposed Sims’s motion, arguing that the injunction did not require the CDCR to return to court for a determination that the new lethal injection regulations were promulgated in compliance with the APA. Petitioners also argued that the regulations are presumed to be valid, and the burden of proof falls upon one challenging the regulations, notupon the agency. Petitioners further maintained that they were not required to dissolve the injunction before attempting to carry out executions by lethal injection.
Following a hearing on August 31, 2010, the superior court granted Sims’s motion. Its August 31, 2010 written order states: “Plaintiff’s motion to enforce injunction is GRANTED. Defendant [CDCR] shall refrain from carrying out the lethal injection of any condemned inmates unless and until this court dissolves the permanent injunction issued by this court in its final judgment.... [¶] The presumption of regularity for administrative action does not allow the CDCR to bypass statutory procedures for modifying and dissolving injunctions (see Civil Code § 3424, and Code Civ. Procedure § 904.1, subd. (a)(6)), or to deprive plaintiff of any opportunity to show that the action was not in ‘full compliance.’ (See Eisenberg Decl., Exh. A, p. 2:1, and, e.g., Union Interchange, Inc. v. Savage (1959) 52 [C]al.2d 601, 604 (modification or dissolution of injunctions falls within court’s inherent powers).) …. ”
During the hearing on Sims’s motion, the superior court elaborated on its reasoning as follows: “On the matter that’s before the Court this morning the CDCR argues that the Court must presume compliance with the APA. And I agree with the defense that ordinarily administrative agency action comes to the Court with a presumption of regularity. This regulation comes to the Court with a lot of history. The Code of Civil Procedure contains specific provisions for motions to dissolve injunctions. The argument that APA regulations were properly promulgated, and if the plaintiff here is aggrieved the plaintiff should seek an injunction, completely ignores the fact that there already is an injunction and it’s not self-dissolving and it’s not dissolved-it doesn’t dissolve on the say-so of one party to contested litigation. [¶] The party seeking relief from an injunction has to come to the Court and pursue that. The defense has not done that in this case and for that reason I am adopting my tentative ruling.”
The following day, petitioners filed their writ petition in this court, seeking reversal of the superior court’s determination that they must refrain from carrying out lethal injections until the injunction is dissolved. The petition requested immediate relief, due to the September 29, 2010 scheduled execution date of condemned inmate Albert Greenwood Brown (Brown). We promptly requested briefing pursuant to an expedited schedule, and advised the parties that we might proceed by issuing a peremptory writ in the first instance (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 177-180).
We granted Brown’s application for leave to file an amicus curiae brief in this proceeding, and have considered the views expressed therein.
DISCUSSION
1. Writ Review of the Challenged Order is Appropriate
We agree with petitioners that writ review is appropriate under the circumstances of this case. (See Omaha Indemnity Co. v. Superior Court (1989) 209 Cal.App.3d 1266, 1273-1274.)
Sims concedes that the challenged order is not appealable yet suggests no other avenue of review of the challenged order. In our view, prompt judicial review of the issues raised by the petition is desirable because those issues impact the administration of the death penalty in California. Furthermore, the scheduled September 29, 2010 execution date of amicus Brown renders this petition unusually urgent.
We reject Sims’s contention that writ review should be denied since petitioners possess an adequate remedy at law through a motion to dissolve the injunction and subsequent appeal. As we explain infra, petitioners are not required to bring such a motion. Irrespective of whether such a motion is required, Sims’s enforcement motion below argued that petitioners could not prevail on a motion to dissolve the injunction unless they first prevailed in Sims’s recently filed action, demonstrating the inadequacy of that remedy.
Brown asserts that the equitable principles of unclean hands and judicial estoppel warrant the denial of writ relief. This argument is based on statements made by a Deputy District Attorney to the Riverside County Superior Court during an August 30, 2010 hearing concerning the scheduling of Brown’s execution. (See Pen. Code, § 1227.) At that hearing, the Deputy District Attorney requested an execution date of September 29, 2010, and indicated that Sims’s motion to enforce the injunction would be litigated the next day in the Marin County Superior Court, but that those “proceedings really have nothing to do with this matter moving forward in this court at this time or, for that matter, a scheduled execution date of September 29th.” The Deputy District Attorney also stated that “[t]he actual status of the lethal injection litigation is really irrelevant to this Court’s duty to set an execution date upon the request of the district attorney.”
Kendall-Jackson Winery, Ltd. v. Superior Court (1999) 76 Cal.App.4th 970, 978 held that the unclean hands “doctrine demands that a [petitioner] act fairly in the matter for which he seeks a remedy. He must come into court with clean hands, and keep them clean, or he will be denied relief, regardless of the merits of his claim.” Brown has not shown that this doctrine applies to petitioners based on statements made at the Riverside County hearing. Nor has Brown demonstrated that petitioners have taken two totally inconsistent positions before the courts in Riverside and Marin Counties, as well as this court, so as to warrant application of the judicial estoppel doctrine. (See People v. Castillo (2010) 49 Cal.4th 145, 155 [outlining judicial estoppel doctrine].) Consequently, these considerations do not bar our consideration of the petition.
2. Petitioners are Entitled to Relief from the Challenged Order
The parties dispute the standard by which we review the superior court’s order, with Sims urging application of the abuse of discretion standard and petitioners arguing in favor of de novo review. We find it unnecessary to resolve this issue, as under either standard of review, the superior court’s August 31, 2010 order granting Sims’s motion to enforce the injunction is erroneous and must be vacated.
The superior court’s determination that petitioners are required to seek a dissolution of the injunction before they may proceed to carry out lethal injections under the newly promulgated regulations is flawed for a variety of interrelated reasons.
It is important to understand at the threshold the subject matter of the injunction. The injunction enjoined petitioners from carrying out any lethal injections of condemned inmates under OP 770. No party to this proceeding claims that petitioners are seeking to resume lethal injection executions under OP 770, the protocol invalidated by both the superior court and this court. Instead, it appears undisputed that petitioners are proceeding with lethal injection executions in reliance on the newly promulgated regulations (Cal. Code Regs., tit. 15, § 3349 et seq.).
The injunction restrained petitioners from carrying out lethal injections of condemned inmates under OP 770 until the promulgation of APA-compliant regulations. Neither Civil Code section 3424, subdivision (a), nor the other authorities cited by the superior court in its order (e.g., Code Civ. Proc., § 904.1, subd. (a)(6) and Union Interchange, Inc. v. Savage (1959)52 Cal.2d 601, 604) purport to impose a requirement on petitioners to seek dissolution of the injunction before they take steps in conformity with the new lethal injection regulations.
To dissolve an injunction, Civil Code section 3424, subdivision (a), requires “a showing that there has been a material change in the facts upon which the injunction was granted, that the law upon which the injunction was granted has changed, or that the ends of justice would be served by the modification or dissolution of the injunction.”
This section permits an appeal “[f]rom an order granting or dissolving an injunction, or refusing to grant or dissolve an injunction.”
Sims argues, “if a party believes an injunction is invalid or is no longer enforceable, ‘the proper remedy is a noticed motion’ arguing the ‘injunction [is] improper under current circumstances’…” [Citation.] However, it bears emphasizing that at this stage of the litigation, petitioners do not challenge the injunction or its continued enforcement. Indeed, petitioners promulgated regulations governing executions by lethal injection to comply with the injunction. The filing of a certified copy of the lethal injection regulations with the Secretary of State, as was done here, creates a rebuttable presumption that the regulations were duly adopted in compliance with the APA. (Gov. Code, § 11343.6, subds. (a), (c).) The Legislature has specified procedures for challenging regulations. (See Gov. Code, § 11350.) Sims made no attempt to rebut this presumption in his motion to enforce the injunction. Sims has, in his separate superior court case, initiated a challenge to the new lethal injection regulations and their compliance with the APA, and will have the burden of demonstrating their invalidity. (Credit Ins. Gen. Agents Assn. v. Payne (1976) 16 Cal.3d 651, 657.)
This is so regardless of whether, as the superior court stated, there is a “history” preceding the promulgation of the regulations.
It is true that the injunction contains language enjoining enforcement of OP 770 “unless and until OP 770 is promulgated as a regulation in full compliance with the [APA]” [emphasis added]. Also correct is the notion that the superior court retains authority to modify or dissolve its injunction. (Union Interchange, Inc., supra, 52 Cal.2d at p. 604.) But the determination of whether the new lethal injection regulations were, in fact, promulgated in full compliance with the APA must proceed under the framework outlined above. The superior court’s ruling, whether characterized as an interpretation or modification of its injunction, turns those principles on their head, by essentially making the validity of the new lethal injection regulations contingent upon petitioners returning to court and affirmatively showing that they fully complied with the APA before the regulations will be considered valid. However, as the foregoing principles make clear, compliance with the APA is presumed, and regulations will not be considered invalid until a challenger successfully rebuts the presumption of validity. Whether the regulations were properly promulgated under the APA will be resolved in Sims’s separate action challenging the new regulations (case No. CIV1004019).
Recognizing this process does not, as the superior court concluded, mean that petitioners are bypassing procedures for modifying and dissolving injunctions, or deprive Sims from showing in his separate action that the regulations were not promulgated in full compliance with the APA. Nor are petitioners’ arguments relating to APA procedures fairly construed as maintaining that the injunction was satisfied merely because petitioners declared that to be so.
CONCLUSION AND DISPOSITION
In accordance with our notification to the parties that we might do so, we will direct issuance of a peremptory writ in the first instance. (See Palma v. U.S. Industrial Fasteners, Inc., supra, 36 Cal.3d at pp. 177-180.) Petitioners’ right to relief is obvious, a temporal urgency exists warranting acceleration of the normal process, and no useful purpose would be served by issuance of an alternative writ, further briefing and oral argument. (Ng v. Superior Court (1992) 4 Cal.4th 29, 35; see also Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1236-1237, 1240-1241; see also Brown, Winfield & Canzoneri, Inc. v. Superior Court (2010) 47 Cal.4th 1233, 1240-1244.)
Let a peremptory writ of mandate issue directing respondent superior court to vacate its August 31, 2010 order granting real party Sims’s motion to enforce the injunction and ordering the CDCR to refrain from carrying out any lethal injections unless and until the court dissolves its permanent injunction, and to issue a new and different order denying real party Sims’s motion to enforce the injunction and related requests.
The granting of writ relief in this proceeding shall in no way preclude Sims from pursuing a motion for preliminary injunction in his separate action (case No. CIV1004019) challenging the validity of the newly promulgated lethal injection regulations.
This decision shall be final as to this court immediately. (Cal. Rules of Court, rule 8.490(b)(3).) The parties shall bear their own costs. (Cal. Rules of Court, rule 8.493(a)(1)(B), (2).)