Kevin Cooper v. Gavin Newsom

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

KEVIN COOPER; ALBERT No. 18-16547
GREENWOOD BROWN; RONALD
LEE DEERE; ROBERT G. FAIRBANK; D.C. Nos.
ANTHONY J. SULLY, 3:06-cv-00219-RS
Plaintiffs-Appellees, 3:06-cv-00926-RS

v.
OPINION
GAVIN NEWSOM; SCOTT KERNAN,
Secretary of the California
Department of Corrections and
Rehabilitation; RONALD DAVIS,
Warden of San Quentin State
Prison,
Defendants-Appellees,

v.

SAN BERNARDINO COUNTY
DISTRICT ATTORNEY; SAN MATEO
COUNTY DISTRICT ATTORNEY;
RIVERSIDE COUNTY DISTRICT
ATTORNEY, Applicants in
Intervention; Proposed Intervenors,
Movants-Appellants.
2 COOPER V. NEWSOM

Appeal from the United States District Court
for the Northern District of California
Richard Seeborg, District Judge, Presiding

Argued and Submitted September 16, 2020
San Francisco, California

Filed September 16, 2021

Before: William A. Fletcher, Danielle J. Forrest*,and
Lawrence VanDyke, Circuit Judges.

Opinion by Judge W. Fletcher;
Partial Concurrence by Judge Forrest;
Dissent by Judge VanDyke

*
Formerly known as Danielle J. Hunsaker.
 COOPER V. NEWSOM 3

SUMMARY**

Prisoner Civil Rights

The panel affirmed, in part, the district court’s denial of
a motion to intervene by the District Attorneys of San
Bernardino, San Mateo, and Riverside Counties, and
dismissed, in part, the District Attorneys’ appeal in an action
by death row inmates seeking a stay of execution on the
ground that California’s execution protocol violates the
Eighth Amendment.

In 2006, California death row inmate Michael Morales
brought suit in federal district court against the Governor of
California, the Secretary of the California Department of
Corrections and Rehabilitation, and the Warden of San
Quentin State Prison. Morales sought a stay of execution on
the ground that California’s execution protocol violated the
Eighth Amendment. The district court stayed the execution,
and numerous death row inmates subsequently intervened as
plaintiffs. After the State promulgated a new execution
protocol in 2018, the District Attorneys of San Bernardino,
San Mateo, and Riverside Counties sought to intervene as
defendants. The district court denied intervention, and the
District Attorneys timely appealed.

While the District Attorneys’ appeal was pending, newly
elected Governor Newsom withdrew California’s new
execution protocol, placed a moratorium on executions, and
closed the execution chamber at San Quentin. Pursuant to a

**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4 COOPER V. NEWSOM

settlement among the parties, plaintiffs voluntarily dismissed
their suit subject to specified conditions.

The panel first held that this appeal was not mooted by
Governor Newsom’s Executive Order or by the stipulated
voluntary dismissal. The panel held that defendants had
failed to carry their burden of demonstrating that the
challenged conduct could not reasonably be expected to start
up again. Nothing prevented Governor Newsom, or a future
Governor, from withdrawing the Executive Order and
proceeding with preparations for executions. It was thus
entirely possible that in the future, defendants would seek to
resume executions in California, and would seek to do so
under the current or a successor protocol.

The panel also held that the parties’ stipulation did not
render the appeal moot. First, the panel determined that this
suit could be revived upon the occurrence of any of the three
events specified in the Reinstatement Stipulation, and
therefore the stipulated voluntary dismissal effectively
functioned as a stay. Second, even if the suit was not revived
upon the occurrence of any of the three events, if the panel
were to hear the current appeal and reverse the district court’s
denial of intervention, the District Attorneys could move in
the district court under Fed. R. Civ. P. 60(b) to seek relief
from the order of dismissal that was entered pursuant to the
stipulation.

On the merits of the appeal, the panel held that the district
court properly denied intervention as of right under Fed. R.
Civ. P. 24(a) because the District Attorneys had not shown a
significant protectable interest in the litigation. The panel
stated that California law does not authorize the District
Attorneys to defend the State against constitutional
 COOPER V. NEWSOM 5

challenges to execution protocols. There was nothing in the
District Attorneys’ general interest in executing condemned
inmates, nor in their more specific interest in requesting
execution dates, that amounted to a significant protected
interest in the Morales litigation, which concerned only the
method by which the State may perform executions. The
District Attorneys have neither the authority to choose a
method of execution, nor the authority to represent the state
entity that makes that choice.

The panel also held that the district court did not abuse its
discretion in denying permissive intervention under Fed. R.
Civ. P. 24(b) on the grounds that (1) there was no common
question of law or fact between the District Attorneys’ claim
or defense and the main action within the meaning of Rule
24(b); and (2) intervention by the District Attorneys would
delay the already long-drawn-out litigation, particularly in
light of the prospect that some or all of the fifty-five other
District Attorneys in California might seek to intervene if
intervention were granted to the three District Attorneys. The
panel dismissed this portion of the District Attorneys’ appeal.

Concurring in part and concurring in the judgment, Judge
Forrest joined the majority opinion except its alternative
holding that this case was not moot because the parties’
settlement and voluntary dismissal effectively functioned as
a stay because the case can revive if certain specified events
occur. Judge Forrest disagreed that granting intervention in
a terminated case that may never revive is itself an effective
remedy that gives the court jurisdiction to consider the merits.
First, this relief is too illusory because it depends on the
occurrence of events that may never happen. Second, this is
not the relief that should guide the court’s analysis.
6 COOPER V. NEWSOM

Dissenting, Judge VanDyke agreed with the majority’s
conclusion that California District Attorneys’ appeal was not
moot. But because he concluded that the district court should
have granted them intervention, he respectfully dissented.
Judge VanDyke stated that the District Attorneys seeking to
intervene in this suit and the California Attorney General
have very different ultimate objectives. The District
Attorneys would uphold and seek to help enforce Proposition
66 to retain the death penalty—on which a majority of the
voters of California voted “Yes”—while the Attorney
General must defend the Governor’s contrary executive order
instituting a moratorium on death penalty executions. Based
on these divergent—indeed, opposed—interests, the District
Attorneys had clearly met this prong of the intervention
requirement. Judge VanDyke also found that the California
statutory structure established a significantly protectable
interest for the District Attorney, namely their ability to
“perform ‘any duty needed to enable it to execute the
judgment [of death],’” which Proposition 66 showed is the
will of the people in California. Because the District
Attorneys held opposing interests and those interests were
significantly protectable, Judge VanDyke would reverse the
denial of the District Attorneys’ intervention in this case.

COUNSEL

Robert P. Brown (argued), Chief Deputy District Attorney;
James R. Second, Deputy District Attorney; Jason Anderson,
District Attorney; District Attorney’s Office, San Bernardino,
California; Michael A. Hestrin, District Attorney; Ivy B.
Fitzpatrick, Managing Deputy District Attorney; Office of the
District Attorney, Riverside, California; Stephen M.
 COOPER V. NEWSOM 7

Wagstaffe, District Attorney, Redwood City, California; for
Movants-Appellants.

John R. Grele (argued), Law Office of John R. Grele, San
Francisco, California; David A. Senior, Sara Cobbra, and Ann
K. Tria, McBreen & Senior, Los Angeles, California; Norman
C. Hile, Orrick Herrington & Sutcliffe LLP, Sacramento,
California; Richard P. Steinken, Jenner & Block, Chicago,
Illinois; Margo Rocconi, Federal Public Defender’s Office,
Los Angeles, California; for Plaintiffs-Appellees.

Misha D. Igra (argued), Supervising Deputy Attorney
General; Monica N. Anderson, Senior Assistant Attorney
General; Attorney General’s Office, Sacramento, California;
for Defendants-Appellees.

OPINION

W. FLETCHER, Circuict Judge:

In 2006, California death row inmate Michael Morales
brought suit in federal district court against the Governor of
California, the Secretary of the California Department of
Corrections and Rehabilitation (“CDCR”), and the Warden of
San Quentin State Prison. Morales sought a stay of execution
on the ground that California’s execution protocol violated
the Eighth Amendment. The district court stayed the
execution, and numerous death row inmates subsequently
intervened as plaintiffs. After the State promulgated a new
execution protocol in 2018, the District Attorneys of San
Bernardino, San Mateo, and Riverside Counties sought to
intervene as defendants. The district court denied
intervention, and the District Attorneys timely appealed.
8 COOPER V. NEWSOM

While the District Attorneys’ appeal was pending, newly
elected Governor Newsom withdrew California’s new
execution protocol, placed a moratorium on executions, and
closed the execution chamber at San Quentin. Pursuant to a
settlement among the parties, plaintiffs voluntarily dismissed
their suit subject to specified conditions. The parties contend
that the Governor’s actions, or in the alternative plaintiffs’
voluntary dismissal of their suit, render the District
Attorneys’ appeal moot.

We disagree with the parties and hold that the appeal is
not moot. On the merits of the appeal, we affirm the district
court’s denial of intervention.

I. Background

In 2006, condemned prisoner Morales brought an Eighth
Amendment challenge in district court to California’s lethal
injection protocol. After finding “critical deficiencies” in the
protocol, the court held that the protocol violated the Eighth
Amendment. Morales v. Tilton, 465 F. Supp. 2d 972, 979
(N.D. Cal. 2006). The court’s holding resulted in a sustained
de facto moratorium on executions in California. See
Morales v. Cate, 623 F.3d 828, 830 (9th Cir. 2010).

In 2010, the CDCR promulgated a new lethal injection
protocol. A California Court of Appeal held the new
procedure presumptively valid and authorized the resumption
of executions. See CDCR v. Superior Court, 2010 WL
3621873, at *4–5 (Cal. Ct. App. Sept. 20, 2010). The State
then scheduled the execution of Albert Brown. Brown moved
to intervene in the Morales litigation in federal district court
and sought a stay of execution. The court granted
intervention but denied the stay. Brown appealed the denial
 COOPER V. NEWSOM 9

of the stay. Morales, 623 F.3d at 829. We remanded to the
district court under Baze v. Rees, 533 U.S. 35 (2008). Id.
at 831. On remand, the court stayed Brown’s execution. In
the years following, an additional twenty-two plaintiffs
intervened in the Morales litigation and obtained stays of
execution.

The 2010 lethal injection protocol was challenged by
condemned inmate Mitchell Sims in a suit in Marin County
Superior Court. Sims argued that the CDCR’s adoption of
the 2010 protocol did not comply with the California
Administrative Procedure Act (“Cal-APA”). Sims v. CDCR,
157 Cal. Rptr. 3d 409, 413 (Ct. App. 2013). The Superior
Court enjoined the CDCR from carrying out executions
“unless and until” it promulgated a new protocol that
complied with the Cal-APA. Id. at 427. The California Court
of Appeal affirmed. Id. at 428–29.

In November 2016, California voters passed Proposition
66, exempting certain lethal injection protocols from the Cal-
APA. The Attorney General successfully defended
Proposition 66 in the California Supreme Court. See Briggs
v. Brown, 400 P.3d 29 (Cal. 2017). In March 2018, the
CDCR promulgated a new lethal injection execution protocol.
The Attorney General, representing the CDCR, joined a
motion asking the Marin County Superior Court to vacate its
injunction, on the ground that the new protocol was not
subject to the Cal-APA requirements. The Superior Court
granted the motion. We grant the parties’ motion to take
judicial notice of the documents in the case (Docket Nos. 38,
93). See In re Korean Air Lines Co., Ltd., Antitrust Litig.,
642 F.3d 685, 689 n.1 (9th Cir. 2011).
10 COOPER V. NEWSOM

After the state court rulings, the sole issue remaining in
the federal Morales litigation was the constitutionality of
California’s new 2018 execution protocol. In June and July
2018, the District Attorneys of San Bernardino, San Mateo
and Riverside Counties moved to intervene in the Morales
litigation under Federal Rule of Civil Procedure 24 and
moved to vacate the stays of execution of the plaintiffs who
had been convicted and sentenced in their counties.

The district court denied the motion to intervene as of
right under Rule 24(a), holding that the District Attorneys did
not have a significant protectable interest relating to the issue
in the litigation, and that to the degree that they had such an
interest it was adequately represented by the existing parties.
The court also denied the motion for permissive intervention
under Rule 24(b) on the grounds that the District Attorneys
had failed to show a “common question of law and fact
between [their] claim or defense and the main action,” given
that they had “no involvement in the drafting or
implementation of any method-of-execution protocol,” and
that additional delays would likely result if they were allowed
to intervene. The District Attorneys timely appealed the
denial of intervention.

In 2019, after the District Attorneys filed their notice of
appeal, newly elected Governor Newsom was substituted as
a Defendant-Appellee in place of Governor Brown. In
February 2019, plaintiffs filed a Fifth Amended Complaint
challenging the constitutionality of the 2018 protocol. In
March, Governor Newsom issued Executive Order N-09-19
(“the Executive Order”), withdrawing the lethal injection
protocols, imposing a moratorium on all executions in
California, and closing the execution chamber at San Quentin.
 COOPER V. NEWSOM 11

The parties moved twice in our court to dismiss the
District Attorneys’ appeal as moot. Defendants first moved
to dismiss the District Attorneys’ appeal on the ground that
the Governor’s Executive Order mooted the appeal. A
motions panel of this court referred the motion to a merits
panel. Following court-assisted mediation, the parties
reached a settlement under which, pursuant to two
stipulations, plaintiffs voluntarily dismissed their suit without
prejudice. See “Stipulation Regarding Procedural
Reinstatement of Fifth Amended Complaint” (“Reinstatement
Stipulation”) and “Stipulation for Voluntary Dismissal
Without Prejudice.” Defendants then filed a second motion
to dismiss the District Attorneys’ appeal, arguing that the
dismissal of the underlying suit rendered the appeal moot.
We grant plaintiffs’ motion to join defendants’ second motion
to dismiss (Docket No. 92). Both motions are before us.

We first address mootness. We then address the merits of
the appeal.

II. Discussion

A. Mootness on Appeal

We deny both motions to dismiss the appeal as moot. We
address each in turn.

In their first motion to dismiss, defendants argue that
because the Executive Order withdrew California’s lethal
injection protocol, placed a moratorium on all executions, and
closed the execution chamber, the District Attorneys’ interest
in the litigation—whatever that interest might have been—no
longer exists, and the appeal must therefore be dismissed as
moot.
12 COOPER V. NEWSOM

Parties seeking a dismissal based on mootness due to
voluntary cessation bear “the heavy burden” of demonstrating
that “the challenged conduct cannot reasonably be expected
to start up again.” Bell v. City of Boise, 709 F.3d 890, 898
(9th Cir. 2013) (quoting Friends of the Earth, Inc. v. Laidlaw
Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000)).
Defendants have failed to carry that burden.

Here, the “challenged conduct” is California’s allegedly
unconstitutional method of execution. The Reinstatement
Stipulation provides that defendants will give plaintiffs’
counsel and the district court “written notice” of the
Governor’s intention to withdraw the Executive Order and
“written notice prior to (1) adopting an execution protocol
and procedures, or (2) beginning any reassembly of a Lethal
Injection Facility or Gas Chamber to conduct executions.”
Nothing prevents Governor Newsom, or a future Governor,
from withdrawing the Executive Order and proceeding with
preparations for executions. It is thus entirely possible that in
the future, defendants will seek to resume executions in
California, and will seek to do so under the current or a
successor protocol. This is not a case where “the challenged
conduct cannot reasonably be expected to start up again.”
Bell, 709 F.3d at 898.

We therefore deny the first motion to dismiss.

The parties’ second motion to dismiss is based on their
stipulated dismissal of the underlying suit. The parties argue
that because there is no longer any suit into which the District
Attorneys can intervene, we cannot provide any meaningful
relief. They argue further that the District Attorneys’
stated aim—vacating plaintiffs’ stays of execution—was
 COOPER V. NEWSOM 13

accomplished when the stays were dissolved by the stipulated
voluntary dismissal.

We recently wrote that “the parties’ settlement and
dismissal of a case after the denial of a motion to intervene
does not as a rule moot a putative-intervenor’s appeal.”
United States v. Sprint Commc’ns, Inc., 855 F.3d 985, 990
(9th Cir. 2017). The question presented in Sprint was
whether the settlement and dismissal of the underlying suit
made it impossible for us to grant “‘any effectual relief
whatever’” to the putative intervenor if “we were to
determine that the district court erred in denying his
intervention.” Sprint, 855 F.3d at 990 (quoting Church of
Scientology of Cal. v. United States, 506 U.S. 9, 12 (1992));
see also W. Coast Seafood Processors Ass’n v. Nat. Res. Def.
Council, Inc., 643 F.3d 701, 704 (9th Cir. 2011) (“An appeal
is moot if there exists no present controversy as to which
effective relief can be granted.” (quotation marks and citation
omitted)). Because some relief was possible, we held that the
appeal was not moot.

Like Sprint, this case involves a settlement agreement
reached after the denial of intervention. But, unlike Sprint,
the settlement agreement in this case did not resolve the
underlying ligation, which makes an even stronger argument
against finding that this appeal is moot. The Reinstatement
Stipulation provides that the underlying litigation will
reactivate upon the occurrence of any of three specified
events. The Stipulation provides, in relevant part:

Following entry of the voluntary dismissal
without prejudice, the action will terminate.
The Parties agree that this Court shall retain
jurisdiction over this matter solely for the
14 COOPER V. NEWSOM

purpose of allowing: (1) any Party to enforce
the terms of this Stipulation; (2) Plaintiffs the
right to reinstate their Fifth Amended
Complaint; and (3) the Court to reinstate the
individual stays of execution as specified
herein.

....

The Fifth Amended Complaint will be
immediately operative upon Plaintiffs
providing written notice to Defendants and the
Court should any of the following occur:
(1) the Executive Order becomes inoperative,
or is no longer in effect, or is withdrawn; or
(2) Defendants have adopted an execution
protocol; or (3) a District Attorney, court, or
other state representative notices or moves for
a date to set an execution for any death
sentenced prisoner.

The conditions in the Reinstatement Stipulation
distinguish this case from cases where we have held an appeal
by would-be intervenors moot after termination of the
underlying litigation. For example, we held moot the appeal
of would-be intervenors in West Coast Seafood. The
underlying suit challenged a National Marine Fisheries
Service program to preserve groundfish species off the west
coast of the United States. The district court denied the
motion of West Coast Seafood Processors Association
(“WCSPA”) to intervene, and WCSPA appealed the denial.
While the appeal was pending, the underlying suit was
resolved on summary judgment, and the district court entered
final judgment. Because the underlying litigation was
 COOPER V. NEWSOM 15

entirely resolved, we held the appeal moot. W. Coast
Seafood, 643 F.3d at 704–05.

On two independently sufficient grounds, the parties’
stipulation does not render the appeal moot. First, in contrast
to West Coast Seafood, where all of the issues had been
resolved and the suit could not be revived, this suit may be
revived upon the occurrence of any of the three events
specified in the Reinstatement Stipulation. The stipulated
voluntary dismissal thus effectively functions as a stay. The
district court contemplated a possible revival when it agreed
to retain post-dismissal jurisdiction on the above terms.
Because the case is functionally stayed, if we reverse the
district court’s denial of intervention, the District Attorneys
can obtain the relief they seek by intervening if and when the
suit is revived.

Second, even if the suit is not revived upon the
occurrence of any of the three events, if we hear the current
appeal and reverse the district court’s denial of intervention,
the District Attorneys can move in the district court under
Federal Rule of Civil Procedure 60(b) to seek relief from the
order of dismissal that was entered pursuant to the stipulation.
See In re Hunter, 66 F.3d 1002, 1004–05 (9th Cir. 1995); see
also Yesh Music v. Lakewood Church, 727 F.3d 356, 362–63
(5th Cir. 2013); Nelson v. Napolitano, 657 F.3d 586, 589 (7th
Cir. 2011). If the district court denies their Rule 60(b)
motion, the District Attorneys can appeal that denial. See Lal
v. California, 610 F.3d 518, 523 (9th Cir. 2010).

We therefore deny the second motion to dismiss.
16 COOPER V. NEWSOM

B. Intervention

The District Attorneys moved in the district court to
intervene as of right under Rule 24(a) and permissively under
Rule 24(b).

1. Intervention as of Right under Rule 24(a)

“A district court’s denial of a motion for intervention as
of right is an appealable ‘final decision.’” Donnelly v.
Glickman, 159 F.3d 405, 409 (9th Cir. 1998). We review de
novo the merits of a district court’s denial of intervention as
of right. Id. When analyzing a motion to intervene of right
under Rule 24(a)(2), we apply a four-part test:

(1) the motion must be timely; (2) the
applicant must claim a “significantly
protectable” interest relating to the property or
transaction which is the subject of the action;
(3) the applicant must be so situated that the
disposition of the action may as a practical
matter impair or impede its ability to protect
that interest; and (4) the applicant’s interest
must be inadequately represented by the
parties to the action.

Wilderness Soc’y v. U.S. Forest Serv., 630 F.3d 1173, 1177
(9th Cir. 2011) (en banc) (quoting Sierra Club v. U.S. Env’t.
Prot. Agency, 995 F.2d 1478, 1481 (9th Cir. 1993)); see also
United States v. Alisal Water Corp., 370 F.3d 915, 919 (9th
Cir. 2004) (referring to “significant protectable interest”).

The four parts of the test “often are very interrelated and
the ultimate conclusion reached as to whether intervention is
 COOPER V. NEWSOM 17

of right may reflect that relationship.” Wright & Miller,
7C Fed. Prac. & Proc. Civ. § 1908 (3d ed. 2020 update). “[I]t
is incumbent on the party seeking to intervene to show that all
the requirements for intervention have been met.” Chamness
v. Bowen, 722 F.3d 1110, 1121 (9th Cir. 2013) (quotation
marks, citation, and alterations omitted). In determining
whether intervention is appropriate, we are “guided primarily
by practical and equitable considerations, and the
requirements for intervention are broadly interpreted in favor
of intervention.” Alisal Water Corp., 370 F.3d at 919.

We note at the outset the somewhat unusual nature of the
District Attorneys’ motion. In a typical motion to intervene,
the moving entity or person is a would-be party, represented
by an attorney, who alleges an interest that may be affected
by the existing litigation. In this case, however, the District
Attorneys are themselves attorneys, and they seek to
intervene as attorneys. They seek to intervene in order to
represent interests of the State, when the state entities—the
Governor, the CDCR, and the Warden of San Quentin—are
already parties and are already represented by the Attorney
General.

For the reasons that follow, we conclude that the District
Attorneys have failed to show that they have a significant
protectable interest in the litigation. Because that failure
alone is a sufficient ground to deny intervention as of right,
we do not reach the question of whether the District
Attorneys have failed to show that their interest is
inadequately represented by the existing parties. See Perry v.
Proposition 8 Official Proponents, 587 F.3d 947, 950 (9th
Cir. 2009) (“Failure to satisfy any one of the requirements is
fatal to the application, and we need not reach the remaining
elements if one of the elements is not satisfied.”).
18 COOPER V. NEWSOM

A would-be intervenor has a significant protectable
interest if the interest is protected by law and there is a
relationship between that interest and the claim or claims at
issue. Alisal Water Corp., 370 F.3d at 919. A significant
protectable interest will be found if a legally protected
interest will suffer a practical impairment in the pending
litigation. Cal. ex. Rel. Lockyer v. United States, 450 F.3d
436, 441 (9th Cir. 2006).

The core of the District Attorneys’ argument is that they
have a duty under state law to prosecute criminal cases. They
argue:

The District Attorneys are public prosecutors,
whose offices are established to “conduct on
behalf of the people all prosecutions for
public offenses” under California state law.
Cal. Gov’t Code § 26500. The office is a
constitutional one under state law. Cal. Const.
art. XI, § 1(b). The public prosecutor has
“sole discretion to determine whom to charge,
what charges to file and pursue, and what
punishment to seek.” Dix v. Superior Court,
53 Cal.3d 442, 451 (1991). The District
Attorneys therefore have a vested interest in
the underlying litigation, which prevents that
very punishment from being enforced.

(Emphasis added.)

The District Attorneys thus argue that because they have
the “sole discretion” to charge and seek punishment, they
have an interest in the plaintiffs’ litigation. The flaw in their
 COOPER V. NEWSOM 19

argument is that neither their ability to charge nor their ability
to seek punishment is at issue in this case. The issue before
the district court was not whether it was legal for the District
Attorneys to charge defendants with capital crimes. Nor was
the issue the legality of any capital conviction and sentence
the District Attorneys have obtained. Rather, the issue was
the constitutionality of California’s method of execution.
This important but narrow issue does not substantially affect
the District Attorneys in the exercise of their “sole discretion
to determine whom to charge, what charges to file and
pursue, and what punishment to seek.” Dix, 53 Cal. 3d at
451.

District attorneys “enjoy[] neither plenary power nor
unbridled discretion.” Safer v. Superior Ct. of Ventura Cty.,
540 P.2d 14, 17 (Cal. 1975). As the California Supreme
Court wrote in Safer,

By the specificity of its enactments the
[California] Legislature has manifested its
concern that the district attorney exercise the
power of his office only in such civil
litigations as the lawmaking body has, after
careful consideration, found essential. An
examination of the types of civil litigation in
which the Legislature has countenanced the
district attorney’s participation reveals both
the specificity and the narrow perimeters of
these authorizations.

Id. (emphasis added). The California Legislature’s narrow
enumeration of the types of civil cases in which the district
attorney may participate “expresses its general mandate that
public officers not use their funds and powers to intervene in
20 COOPER V. NEWSOM

private litigation.” Id. at 18; see also People v. Superior Ct.
(Humberto S.), 182 P.3d 600, 611–12 (Cal. 2008) (“[A]
district attorney has no authority to prosecute civil actions
absent specific legislative authorization.”); Cal. Gov’t Code
§§ 26500–30 (detailing office of District Attorneys).

As relevant here, the District Attorneys have no authority
to choose the method by which California will execute
condemned inmates. That authority is assigned to the CDCR,
whose Secretary is already a defendant in this case. See Cal.
Penal Code § 3604. The District Attorneys also do not have
authority to act as attorneys representing the Secretary of the
CDCR or the other defendants in this case. Under California
law, that authority is assigned to the Attorney General, who
has represented the defendants in this case since its inception.
See Cal. Gov’t Code § 12512 (“The Attorney General shall
. . . prosecute or defend all causes to which the State, or any
State officer is a party in his or her official capacity.”).

The District Attorneys point to no legislative
authorization granting them the authority to represent the
State’s interest in this case. The best the District Attorneys
can do is to point to California Penal Code § 3604.1(c), which
provides, in relevant part:

If the use of a method of execution is enjoined
by a federal court, the Department of
Corrections and Rehabilitation [CDCR] shall
adopt, within 90 days, a method that conforms
to federal requirements as found by that court.
If the department fails to perform any duty
needed to enable it to execute the judgment,
the court which rendered the judgment of
death shall order it to perform that duty on its
 COOPER V. NEWSOM 21

own motion, on motion of the District
Attorney or Attorney General, or on motion of
any victim of the crime . . . .

The current litigation is outside the scope of this statute.
First, there is no pending order by any federal court that
limits the execution methods California may use. Instead, it
is the actions of California state officials that have limited
executions. Second, the statute does not authorize District
Attorneys to engage in “adversarial litigation” either on
behalf of or against the CDCR. It only authorizes District
Attorneys to move in the state trial court that imposed the
death penalty for an order directing the CDCR to perform its
duty to carry out the court’s judgment. (The Superior Court
need not wait for a motion by a District Attorney; it may set
an execution date on its own motion. Id.) The statute does
not authorize District Attorneys to defend the State’s
execution protocols, promulgated by the CDCR, against
constitutional challenges in federal court.

We recognize that the litigation in this case incidentally
affects the manner in which the District Attorneys are able to
perform their assigned functions. The Morales litigation over
the constitutionality of California’s proposed method of
execution has effectively suspended the death penalty in
California and has thereby prevented the District Attorneys
from successfully moving in the Superior Court to set
execution dates. But there is nothing in the District
Attorneys’ general interest in executing condemned inmates,
nor in their more specific interest in requesting execution
dates, that amounts to a significant protected interest in the
Morales litigation, which concerns only the method by which
the State may perform executions. The District Attorneys
have neither the authority to choose a method of execution,
22 COOPER V. NEWSOM

nor the authority to represent the state entity that makes that
choice. The ongoing Morales litigation thus does not impair
any significant protectable interest of the District Attorneys.
See, e.g., Alisal Water Corp., 370 F.3d at 920 (noting that an
intervenor’s claimed interest cannot be “several degrees
removed from the [issues] that are the backbone of [the]
litigation”); City of Emeryville v. Robinson, 621 F.3d 1251,
1259 (9th Cir. 2010) (noting that a would-be intervenor
cannot “rely on an interest that is wholly remote and
speculative”).

Finally, although the denials of intervention are not
perfectly analogous to the denial in the case before us, we
note that District Attorneys in States in other circuits have
been denied intervention in civil suits challenging some
aspect of their States’ criminal justice systems. In those
cases, our sister circuits have denied intervention on the
ground that, while District Attorneys’ duties may have been
incidentally affected by the litigation, they had no significant
protectable interest in the litigation.

In Saldano v. Roach, 363 F.3d 545 (5th Cir. 2004), a
District Attorney moved to intervene in state prisoner
Saldano’s federal habeas corpus proceeding. After Saldano
argued he was denied due process in his sentencing
proceedings, the Attorney General, representing named
defendant Director of the Texas Department of Criminal
Justice, confessed error and waived a procedural default bar.
Id. at 550. The District Attorney, who had prosecuted
Saldano, moved to intervene to oppose Saldano’s petition. Id.
Although the District Attorney claimed authority to act as the
State’s representative, Texas law defining the duties and
responsibilities of District Attorneys did not authorize a
district attorney to represent the State in federal habeas
 COOPER V. NEWSOM 23

corpus proceedings. Id. at 551–52 (“Texas law does not grant
the District Attorney the authority to represent the State
here.”). As in this case, the Attorney General, rather than the
District Attorney, was authorized to represent the State. Id.
The Fifth Circuit held that while the District Attorney would
be affected by the litigation, he did not have a legally
protectable interest that would merit intervention as of right.
Id. at 556.

In Harris v. Pernsley, 820 F.2d 592, 597 (3d Cir. 1987),
a District Attorney sought to intervene in a class action
challenging conditions in Pennsylvania state prisons. After
extensive litigation, the parties agreed to a consent decree
limiting prison populations. Id. at 594. The District Attorney
sought intervention to “prevent [the] settlement.” Id. at 599.
Under Pennsylvania law, District Attorneys had the authority
to prosecute cases, advocate specific bail levels, appeal bail
determinations, advocate sentences, and defend convictions.
Id. at 598. The District Attorney argued on two grounds that
the proposed settlement would “adversely affect his
functions.” Id. at 599. First, a cap on prison populations
would result in the release of inmates who had not posted
bond or who had not served their full sentences, which would
hamper his ability to prosecute cases. Id. Second, a cap
would make it difficult for city jails to admit new convicted
inmates, which would “render meaningless” the District
Attorney’s prosecutorial duties. Id. The Third Circuit held
that while the District Attorney would be affected by the
consent decree, that effect did not confer a “right to become
a party to any consent decree entered in this case.” Id. at 602.

In sum, California law does not authorize the District
Attorneys to defend the State against constitutional
challenges to execution protocols. We therefore conclude
24 COOPER V. NEWSOM

that the District Attorneys do not have a “significant
protectable interest” in the Morales litigation.

2. Permissive Intervention

We have jurisdiction over a district court’s denial of
permissive intervention only if we conclude the district court
abused its discretion. City of L.A., 288 F.3d at 397. If the
district court did not abuse its discretion, we must dismiss the
appeal for lack of jurisdiction. Glickman, 159 F.3d at 411.

“An applicant who seeks permissive intervention must
prove that it meets three threshold requirements: (1) it shares
a common question of law or fact with the main action; (2) its
motion is timely; and (3) the court has an independent basis
for jurisdiction over the applicant’s claims.” Id. at 412.
“Even if an applicant satisfies those threshold requirements,
the district court has discretion to deny permissive
intervention.” Id. In exercising its discretion, the district
court must consider whether intervention will unduly delay
the main action or will unfairly prejudice the existing parties.
Id. (citing Fed. R. Civ. P. 24(b)(2)). “An abuse of discretion
occurs if the district court bases its decision on an erroneous
legal standard or on clearly erroneous findings of fact.”
Smith v. Marsh, 194 F.3d 1045, 1049 (9th Cir. 1999) (citation
omitted).

The district court denied permissive intervention on two
grounds. First, the court found that there was no common
question of law or fact between the District Attorneys’ “claim
or defense and the main action” within the meaning of Rule
24(b). Fed. R. Civ. P. 24(b). The question in the “main
action” was whether California’s challenged execution
protocol was constitutional. The District Attorneys had no
 COOPER V. NEWSOM 25

role in promulgating the CDCR’s execution protocol and
were not authorized under California law to represent the
CDCR or the other defendants in defending the
constitutionality of the protocol.

Second, the court found that intervention by the District
Attorneys would delay the already long-drawn-out litigation,
particularly in light of the prospect that some or all of the
fifty-five other District Attorneys in California might seek to
intervene if intervention were granted to the three District
Attorneys. See Montgomery v. Rumsfeld, 572 F.2d 250, 255
(9th Cir. 1978) (“The district judge acted well within his
discretion when he decided that 13 additional plaintiffs would
unnecessarily delay and complicate the case, and that
decision is also affirmed.”); Stringfellow v. Concerned
Neighbors in Action, 480 U.S. 370, 380 (1987) (“Particularly
in a complex case such as this, a district judge’s decision on
how best to balance the rights of the parties against the need
to keep the litigation from becoming unmanageable is entitled
to great deference.”).

We hold that the district court did not abuse its discretion
in denying permissive intervention on these grounds. We
therefore dismiss this portion of the District Attorneys’
appeal. Glickman, 159 F.3d at 411.

Conclusion

We hold that the District Attorneys’ appeal of the district
court’s denial of their motion to intervene is not mooted by
Governor Newsom’s Executive Order or by the stipulated
voluntary dismissal. On the merits of the appeal, we hold that
the District Attorneys have not shown a significant
protectable interest in the litigation. We therefore hold that
26 COOPER V. NEWSOM

the district court properly denied intervention as of right
under Rule 24(a). We also hold that the district court did not
abuse its discretion in denying permissive intervention under
Rule 24(b).

AFFIRMED in part, DISMISSED in part.

FORREST, Circuit Judge, concurring in part and concurring
in the judgment:

I join the majority opinion except its alternative holding
that this case is not moot because the parties’ settlement and
voluntary dismissal “effectively functions as a stay” because
the case can revive if certain specified events occur. Maj. Op.
at 15. As the majority notes, we have established that a
settlement and resulting dismissal following a motion to
intervene “does not as a rule moot a putative-intervenor’s
appeal.” United States v. Sprint Commc’ns, Inc., 855 F.3d
985, 990 (9th Cir. 2017). This rule recognizes that often the
original parties’ resolution of an action does not provide the
relief sought by the would-be intervenor. Id. (citing CVLR
Performance Horses, Inc. v. Wynne, 792 F.3d 469, 475 (4th
Cir. 2015)). Thus, the relevant question for determining
whether a settlement renders a case moot as to an intervenor
is whether “the settlement and dismissal of the underlying
case ‘make[] it impossible . . . to grant any effectual relief
whatever’ to the putative intervenor” if the district court’s
denial of intervention were reversed. Id. (quoting Church of
Scientology of Cal. v. United States, 506 U.S. 9, 12 (1992)).

Equating the parties’ stipulated voluntary dismissal in this
case with a stay, the majority reasons that we can grant
 COOPER V. NEWSOM 27

effective relief to the District Attorneys by considering their
denial-of-intervention appeal because, if we reverse, “the
District Attorneys can obtain the relief they seek by
intervening” in the [not-yet-and-may-never-be] revived suit.
Maj. Op. at 15. I disagree that granting intervention in a
terminated case that may never revive is itself an effective
remedy that gives us jurisdiction to consider the merits. First,
this relief is too illusory because it depends on the occurrence
of events that may never happen. Second, this is not the relief
that should guide our analysis.

In determining whether we can grant “any effective relief
whatever,” Church of Scientology of Cal., 506 U.S. at 12, we
must consider the relief the putative intervenors seek in the
underlying litigation—i.e., what they want to accomplish by
intervening. See, e.g., id. at 12–15 (analyzing discovery relief
putative intervenor hoped to obtain); Sprint Commc’ns, Inc.,
855 F.3d at 990 (analyzing the statutory right to money
damages and ability to object to settlement that putative
intervenors sought and concluding there was a possibility of
proving effectual relief because “[i]f we were to conclude
[intervenor] had a right to intervene . . . , he might be able to
object to the settlement or otherwise seek his share of the
proceeds”); DBSI/TRI IV Ltd. P’ship v. United States,
465 F.3d 1031, 1036–37 (9th Cir. 20016) (analyzing putative
intervenor’s requested relief of setting aside the direct parties’
stipulated judgment as violative of statute and reasoning that
“if it were concluded on appeal that the district court had
erred in denying the intervention motion . . . then the
applicant would have standing to appeal the district court’s
judgment”). Intervening is a means to an end, not an end in
and of itself. See, e.g., Fed. R. Civ. P. 24 (noting prerequisite
of intervention for any purpose is that the intervenor have an
interest in a claim or defense in the litigation); 7C Charles A.
28 COOPER V. NEWSOM

Wright, Arthur R. Miller, Mark K. Kane, Fed. Prac. & Proc.
§ 1901 (3d ed. 2021) (discussing one purpose of intervention
is allowing “those on the outside” of a lawsuit to become a
party if they “believe that a decision may have an effect on
them”).

The District Attorneys make an efficiency argument for
why we should address the merits of intervention—resolving
this procedural issue now prevents them from having to re-
raise it if the case ever revives in the future. But what they
really want is to pursue a more aggressive litigation strategy
than what the Attorney General has pursued—a strategy that
“allows the voice of the People who obtained death
judgments” to be heard. This larger strategy goal assuredly
includes seeking to have the stipulated voluntary dismissal,
which occurred after the District Attorneys appealed their
failed attempt to intervene, set aside. While intervening is
necessary for the District Attorneys to achieve their larger
strategy goal, intervention does not itself dictate whether
there is “any effectual relief whatever” that we could grant
sufficient to maintain our jurisdiction over the case. Church
of Scientology of Cal., 506 U.S. at 12. Rather, the relevant
effectual relief for purposes of the mootness analysis is the
District Attorneys’ ability to seek relief from the voluntary
dismissal if allowed to intervene, regardless of whether any
of the triggering events for reviving the case ever occur.
Therefore, I agree with the majority that this case is not moot,
but only for the second reason on which the majority relies.
 COOPER V. NEWSOM 29

VANDYKE, Circuit Judge, dissenting:

I agree with the majority’s conclusion that California
District Attorneys’ appeal is not moot. But because I
conclude the district court should have granted them
intervention, I respectfully dissent.1

Even the casual observer would recognize that the District
Attorneys seeking to intervene in this suit and the California
Attorney General have very different ultimate objectives.
The District Attorneys would uphold and seek to help enforce
Proposition 66 to retain the death penalty—on which a
majority of the voters of California voted “Yes”—while the
Attorney General must defend the Governor’s contrary
executive order instituting a moratorium on death penalty
executions. Based on these divergent—indeed, opposed—
interests and the applicable law, I would reverse the denial of
the District Attorneys’ intervention in this case.

Federal Rule of Civil Procedure 24(a)(2) governing
intervention is interpreted “broadly in favor of proposed
intervenors,” Wilderness Soc’y v. U.S. Forest Serv., 630 F.3d
1173, 1179 (9th. Cir. 2011) (citation omitted), and because
“courts are guided primarily by practical and equitable
considerations,” there is a presumption “in favor of
intervention.” United States v. Alisal Water Corp., 370 F.3d
915, 919 (9th Cir. 2004). That presumption, combined with
the inadequacy of the Attorney General’s current
representation and the District Attorneys’ significantly
protectable statutory interests in preserving the sentenced

1
Because I conclude the District Attorneys should have been granted
intervention as of right, I would not reach the arguments for permissive
intervention.
30 COOPER V. NEWSOM

method of punishment, leads me to conclude that the District
Attorneys should be allowed to intervene as of right.

1. Inadequate Representation by Current Parties

The District Attorneys and the Governor (through his
counsel, the Attorney General) pursue diametrically opposed
objectives in this case, and no presumption of adequate
representation arises from any shared goals. Compare Perry
v. Proposition 8 Off. Proponents, 587 F.3d 947, 950–51 (9th
Cir. 2009) (noting that the ultimate objectives of the
Campaign and the Proponents were identical and finding that
the Campaign’s interest was adequately represented). The
Attorney General entered a settlement to lift the stays of
execution for the plaintiffs in Morales v. Kernan, Nos. 06-cv-
0219; 06-cv-0926, 2017 WL 8785130 (N.D. Cal. Dec. 4,
2017), because his client, Governor Newsom, issued
Executive Order N-09-19 “grant[ing] reprieves . . . to all . . .
people sentenced to death in California.” The stays in the
underlying litigation were no longer necessary to achieve the
Governor and Attorney General’s objective: to prevent the
imposition of the death penalty.2

But obviously this is not the aim of the District Attorneys,
who argue they represent “the voice of the People who
obtained the death judgments,” which the District Attorneys
intend to see through to completion. As they correctly argue,
“the governor’s issuance of the order strengthens the District
Attorneys’ position that the Attorney General is not involved
in this case to represent the interests of the People” who

2
The majority acknowledges that, far from being adversarial to the
plaintiffs’ desire to suspend their executions, “it is the actions of
California state officials that have limited executions.”
 COOPER V. NEWSOM 31

passed Proposition 66 to “give[] crime victims the right to
timely justice” through an effective and efficient death
penalty system. See Death Penalty Reform and Savings Act,
2016 Cal. Legis. Serv. Prop. 66 § 2 ¶ 10.

It’s flirting with absurdity to characterize, as the district
court did in denying intervention, the disagreement between
the District Attorneys and the Attorney General as “mere
differences in litigation strategy.” Proposition 8 Off.
Proponents, 587 F.3d at 954 (cleaned up). The Attorney
General’s entire litigation strategy for the past few years has
operated to block the District Attorneys’ involvement in the
case, precisely because they have very divergent interests.
The Attorney General entered a settlement to dismiss the
stays during the pendency of the Governor’s moratorium on
executions, but stipulated that the case and its stays would
spring back into place if the moratorium were lifted. This
ensures that, contrary to the District Attorneys’ stated goal,
no executions will occur. It is precisely because of these
competing interests—rather than mere differences of opinion
about the pace of the case or how an argument should be
made—that the Attorney General opposes the District
Attorneys’ intervention.3

3
The State Defendants argue that where the Attorney General appears
on behalf of the state “there is no ground for allowing intervention by any
other public officer.” But the District Attorneys are correct in claiming
that the Attorney General’s involvement in this case “is as counsel to
various state executive officers related to their ministerial roles, rather
than as California’s top prosecutor.” In executing his “multiple roles,” the
Attorney General may support new policies from the Governor that
conflict with current law, which is the case here: Proposition 66 enshrines
in statute the will of the People to continue executions, while the
Governor’s executive order is explicitly opposed to any executions in
California. See Death Penalty Reform and Savings Act, 2016 Cal.
32 COOPER V. NEWSOM

The Fifth Circuit’s Saldano v. Roach decision highlights
the significant conflicting interests in this case. 363 F.3d 545
(5th Cir. 2004). In Saldano, the Fifth Circuit ultimately
denied a district attorney’s attempt to intervene in a federal
habeas appeal, but it never pretended that the Attorney
General and the district attorney shared similar litigation
goals. The Attorney General in Saldano sought to admit error
in the state habeas proceedings, id. at 549, while the district
attorney pursued intervention to defend the judgment he
earned in the underlying state habeas proceedings, id. at 549
n.1. They sought to advance conflicting arguments. But in
denying intervention the court acknowledged and relied on
the unique structure of habeas appeals under Texas “state law,
which has chosen the Attorney General, rather than the
various district attorneys, to represent the State in federal

Legis. Serv. Prop. 66; Cal. Penal Code § 3604.1(b); see also Exec.
Order N-09-19 (Mar. 13, 2019), https://www.gov.ca.gov/wp-
content/uploads/2019/03/3.13.19-EO-N-09-19.pdf. That these two
positions conflict is evident without an official acknowledgment from the
Attorney General, and any presumption that he represents both positions
is easily rebutted here.

Nor does the Attorney General’s supervisory role over District
Attorneys in the California Constitution indicate unity of purpose in this
case. Such supervision “does not contemplate control, . . . and district
attorneys cannot avoid or evade the duties and responsibilities of their . . .
offices by permitting a substitution of judgment.” People v. Brophy,
49 Cal. App. 2d 15, 28 (Dist. Ct. App. 1942). The structure of this
supervision reflects the “goal [of] efficiency and horizontal coordination,
rather than a desire to weaken district attorneys or give the Attorney
General additional power.” Goldstein v. City of Long Beach, 715 F.3d
750, 756–57 (9th. Cir. 2013). Furthermore, the supervisory constitutional
provision does not permit the Attorney General to dictate policy to a
district attorney. See id. at 756. The Attorney General’s supervisory role
has no bearing on whether he represents the interests of the District
Attorneys in this litigation.
 COOPER V. NEWSOM 33

habeas corpus suits.” Id. at 553. While the court in Saldano
stated in passing dicta that both the Attorney General and the
district attorney in that case shared the “identical interest . . .
[of] see[ing] that justice is done,” that bromide is always true
and never particularly helpful. One party’s view of “justice”
can demand precisely the opposite result required by
another’s view, and the fact that both parties seek “justice”
does not somehow reconcile their positions.

Concluding that both the Attorney General and the
District Attorneys seek the same outcome in this case
completely ignores the “practical and equitable
considerations” that normally drive our intervention analysis.
Alisal, 370 F.3d at 919. Sure, they both seek their version of
“justice.” But they viscerally disagree as to whether applying
the death penalty achieves that goal. I find that the District
Attorneys satisfied this prong of the analysis under Rule
24(a)(2), which counsels toward granting their motion to
intervene.

2. Significantly Protectable Interest

Given the “room for disagreement . . . over the meaning
of the term . . . significantly protectable interest,” Arakaki v.
Cayetano, 324 F.3d 1078, 1084 (9th Cir. 2003) (citation
omitted), and the persistent “broad[] interpret[ation] in favor
of intervention,” Alisal, 370 F.3d at 919, I conclude that the
District Attorneys provided sufficient evidence of a
protectable interest. The District Attorneys demonstrated
their statutorily mandated interest in the completion of death
penalty judgments, obtaining such judgments, and scheduling
executions.
34 COOPER V. NEWSOM

The District Attorneys rely on Blake v. Pallan to argue
that as “state official[s] [they have] a sufficient interest in
adjudications which will directly affect [their] own duties and
powers under the state laws.” 554 F.2d 947, 953 (9th Cir.
1977). The strongest evidence of the District Attorneys’
protectable interests is provided in California Penal Code
section 3604.1(c), which explicitly empowers district
attorneys to file a motion if necessary to order the California
Department of Corrections and Rehabilitation (CDCR) to
perform “any duty needed to enable it to execute the
judgment [of death].” This statute codifies the District
Attorneys’ specific interest in ensuring that death penalty
judgments are carried out.

Notwithstanding the majority opinion’s litany of actions
it believes section 3604.1(c) does not authorize, section
3604.1(c)’s directive to file a motion to “order [CDCR] to
perform [its] duty” is a civil, not criminal function—making
it clear that District Attorneys are empowered to represent the
State and the People in civil litigation involving the legality
of state agency procedures. True, the statute does not
contemplate all the ways another state official might contrive
to subvert CDCR’s duties, so this exact intervention process
is not explicated in the statute. But section 3604.1
affirmatively authorizes the District Attorneys to take civil
action to enforce sentences. Section 3604.1(c) demonstrates
the District Attorneys’ significantly protectable statutory
interest in the enforcement of death penalty convictions, and
that interest—demonstrated by statute—alone satisfies the
last prong required in the intervention-by-right analysis. 4

4
If not the District Attorneys, then who else? The victims of the
murders perpetrated by the inmates in the underlying litigation would
 COOPER V. NEWSOM 35

Even beyond the clear statutory interest created through
Proposition 66 in section 3604.1(c), the majority admits that
preventing the District Attorneys from intervening in this
case affects the District Attorneys’ ability to carry out their
general statutory duty to enforce punishments imposed by the
state court. But the majority insists that denying intervention
only “incidentally affects the manner in which the District
Attorneys are able to perform their assigned functions,”
because the underlying stays in the Morales litigation only
“prevent[] the District Attorneys from successfully moving in
the Superior Court to set execution dates.”5

That’s a little like saying that a statute only “incidentally
affects” car dealers because all it does is prevent them from
selling cars. Ensuring that death sentences are carried out is
an obviously important and weighty duty—one that the
People of California recently reinforced by passing

likely not have standing to enforce the executions and the District
Attorneys are the only entities pursuing those victims’ interests.
5
While the majority relies on the fact that “there is no pending order
by a federal court” directly limiting the available methods of punishment,
that is exactly the object of the Morales litigation. As the majority notes,
“the sole issue remaining in the federal Morales litigation [is] the
constitutionality of California’s new 2018 execution protocol.” Thus, if
the Morales litigation reopens, which the majority acknowledges could
happen, and the District Attorneys are not allowed to intervene, an order
barring the state’s use of its execution protocol is very possible—perhaps
likely. And it is not clear what the majority means in relying on the lack
of a “pending order.” If the majority means to suggest that the District
Attorneys cannot intervene until after the district court actually issues an
unfavorable order, then what is the point of creating a process by which
parties may intervene to make their case before an adverse order is issued?
Indeed, if the District Attorneys waited to intervene until after the district
court issued an order limiting California’s execution methods, they might
be barred from intervening because their motion would be untimely.
36 COOPER V. NEWSOM

Proposition 66. I cannot agree with the majority’s
minimization of both the legal and public duties of the
District Attorneys. In California, district attorneys
“ordinarily [have] sole discretion to determine whom to
charge, what charges to file and pursue, and what punishment
to seek.” Dix v. Superior Court, 53 Cal. 3d 442, 451 (1991).
The majority asserts that this interest is not “significantly
protectable” in this case because it does not precisely mirror
the Morales litigation’s concerns with the method of
execution. But the Supreme Court has long recognized a
“State’s significant interest in enforcing its criminal
judgments,” Nelson v. Campbell, 541 U.S. 637, 650 (2004)
(emphasis added), which is exactly what the District
Attorneys contend is being stymied. In fact, particularly in
this case where only the District Attorneys are attempting to
effectuate the intent of the People of California as enshrined
in Proposition 66, “any time a State is enjoined by a court
from effectuating statutes enacted by representatives of its
people, it suffers a form of irreparable injury.” Maryland v.
King, 133 S. Ct. 1, 3 (2012) (Roberts, C.J., in chambers)
(emphasis added) (alterations and citation omitted). Given
this court’s presumption in favor of intervention, I find that
both the specific mandate to schedule executions and the
general mandate to enforce criminal judgments easily satisfy
the broad definition of “significantly protectable interests.”
Arakaki, 324 F.3d at 1084.6

6
There are examples in other circuits where district attorneys were
allowed to intervene and participate in cases regarding petitioners’ method
of punishment. See, e.g., Carmona v. Ward, 576 F.2d 405, 408 (2d Cir.
1978) (demonstrating that the Albany County District Attorney intervened
on behalf of the state to participate in a case regarding “whether the
mandatory maximum sentence of life imprisonment imposed on appellees
is unconstitutional under the Eighth Amendment”).
 COOPER V. NEWSOM 37

The majority’s two out-of-circuit cases addressing this
issue do not present a strong argument to the contrary. As
noted above, the Fifth Circuit’s Saldano opinion specifically
relied on the structural separation of duties under Texas law
that specifically placed federal habeas cases in the sole ambit
of the Attorney General. Saldano, 363 F.3d at 553. In the
Third Circuit case Harris v. Pernsley, the district attorney
sought to intervene arguing that his prosecutorial power
would be hampered by the prison population cap determined
by a settlement agreement between the city and the plaintiffs.
820 F.2d 592, 599 (3d Cir. 1987). The court determined the
district attorney had “no legal duties or powers with regard to
the conditions in the Philadelphia prison system,” and the
settlement did “not alter any of [the district attorney’s]
duties.” Id. at 600. The district attorney in Harris, unlike the
District Attorneys in this case, could not point to specific
statutory duties affected by the settlement. See id.

Harris resurfaced in the Third Circuit after the
Pennsylvania legislature passed a statute “purporting to
confer automatic standing on the district attorney in prison
litigation under which prisoners might be released.” Harris
v. Reeves (Harris II), 946 F.2d 214, 217 (3d Cir. 1991). This
second iteration is more similar to the present facts because
the Pennsylvania District Attorney could point to specific
statutory authority to argue he had “significant protectable
interests.” But the Third Circuit again found, despite the
language of the new statute, that “[s]imply stating that the
district attorney has a legal interest does not make it so,” and
argued the other substantive duties of the district attorney had
not changed. Id. at 222. The dissent in that case “totally
disagree[d],” and “conclude[d] that the Pennsylvania
legislature . . . conferred the necessary legal interest upon the
District Attorney of Philadelphia to intervene.” Id. at 225
38 COOPER V. NEWSOM

(Aldisert, J., dissenting). The law of the case dictated that the
district attorney’s duties must be enshrined in Pennsylvania
law to present a sufficient interest to intervene, and the
legislature did exactly that. Id. at 226–28 (Aldisert, J.,
dissenting). The dissent emphasized that “when the
Commonwealth has by statute assigned the District Attorney
a legal interest in proceedings, we must recognize that
interest as surely as we must follow any state statute.” Id.
at 229 (Aldisert, J., dissenting).

I agree with the dissent in Harris II. States enact laws to
represent the will of the people and may confer legal duties
on state officers. The majority in Harris II could not
articulate a substantive reason for its continued denial after
the legislature explicitly followed the instructions from
Harris and changed the law to ensure the district attorney
could intervene. The present case and Harris II both concern
district attorneys with enumerated statutory duties that
constitute significantly protectable interests justifying
intervention, and I conclude that this requirement of Rule
24(a)(2) is met by the District Attorneys seeking to intervene
in this case, who have multiple statutory interests at stake.

* * *

Allowing intervention would ensure the District Attorneys
could represent their (and the People’s) interests in
effectuating Proposition 66. The District Attorneys’ motion
to intervene is meritorious because it satisfies the Rule
24(a)(2) four-part test’s requirements that the Governor and
his counsel do not adequately represent the District
Attorneys’ interest in commencing executions, and the
District Attorneys have multiple significantly protectable
statutory interests in carrying out death penalty sentences. I
 COOPER V. NEWSOM 39

would reverse the district court’s denial of the District
Attorneys’ motion to intervene as of right.