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.
ORDER
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,
Movants-Appellants.
2 COOPER V. NEWSOM
Filed March 2, 2022
Before: William A. Fletcher, Danielle J. Forrest, and
Lawrence VanDyke, Circuit Judges.
Order;
Concurrence by Judges W. Fletcher and Forrest;
Dissent by Judge Bumatay;
Dissent by Judge Callahan;
Dissent by Judge VanDyke
SUMMARY*
Civil Rights/Death Penalty
The panel denied on behalf of the court rehearing en banc
after a judge sua sponte called for a vote on whether to rehear
this case en banc and the matter failed to receive a majority
of votes of the nonrecused active judges in favor of en banc
consideration.
The panel opinion 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. The panel held that the district court
(1) properly denied intervention as of right under Fed. R. Civ.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
COOPER V. NEWSOM 3
P. 24(a) because the District Attorneys had not shown a
significant protectable interest in the litigation; and (2) did
not abuse its discretion in denying permissive intervention
under Fed. R. Civ. P. 24(b).
Concurring in the denial of rehearing en banc, Judge
W. Fletcher and Forrest stated that the voters of California
approved the Death Penalty Procedures Initiative of 2016,
otherwise known as Proposition 66, retaining the death
penalty. Inter alia, Proposition 66 created a mechanism
allowing District Attorneys to move in the state court that
imposed the death penalty for an order directing the
California Department of Corrections and Rehabilitation
(“CDCR”) to “perform any duty needed to enable it to
execute the judgment.” Cal. Penal Code § 3604.1(c). But
neither Proposition 66, nor any other provision of California
law, gave District Attorneys authority to participate in
choosing the method by which California executes
condemned prisoners, or to represent in court those who have
the authority to make that choice. The people of California,
through their chosen representatives, assigned the ultimate
duty to execute state laws to the Governor, Cal. Const. art. V,
§ 1; the duty to oversee execution procedures to the Secretary
of the CDCR, Cal. Penal Code § 3604; the duty to implement
execution to the Warden of San Quentin, Cal. Penal Code
§§ 3603, 3605, 3607; and the duty to defend state laws and
officers to the Attorney General, Cal. Gov’t Code § 12512.
Because the District Attorneys have no statutory authority
concerning the method of execution, they had no right to
intervene under Rule 24(a)(2). The panel’s opinion faithfully
followed California law; correctly applied Federal Rule
24(a)(2); and was consistent with two analogous cases
decided by sister circuits: Saldano v. Roach, 363 F.3d 545,
4 COOPER V. NEWSOM
551–56 (5th Cir. 2004), and Harris v. Pernsley, 820 F.2d
592, 600 (3d Cir. 1987).
Dissenting from the denial of rehearing en banc, Judge
Bumatay, joined by Judges Gould, Callahan, Ikuta, Bennett
and VanDyke, stated that in denying the District Attorneys’
intervention in this case, not only did the court cast aside the
will of the people, but it seriously mangled its Rule 24
caselaw. Based on this court’s precedent for evaluating a
prospective intervenor’s claim of a “significantly protectable”
interest, the panel majority should have ruled that the District
Attorneys have a significantly protectable interest in the
litigation challenging the constitutionality of California’s
death penalty protocols. While the District Attorneys’
general mandate to enforce criminal judgments may alone be
enough to create a protectable interest, Proposition 66
confirmed that they have exceeded the Rule 24 protectable-
interest threshold. By approving Proposition 66, the people
of California both expressly voiced their will to retain the
death penalty and enacted a law expanding the authority of
district attorneys to carry out the punishment. The panel
majority erred by requiring the District Attorneys to show an
on-point statutory grant to intervene in challenges to death
penalty protocols. The cramped view espoused by the panel
majority could neither be squared with precedent nor with the
court’s guiding principles favoring intervention. Not only did
the court disregard its longstanding view of what constitutes
a protectable interest, it also significantly heightened the
relationship requirement between the protectable interest and
the plaintiff’s claims in the litigation.
Dissenting from the denial of rehearing en banc, Judge
Callahan, joined by Judges Bumatay and VanDyke, fully
joined Judge Bumatay’s dissent. Judge Callahan wrote
COOPER V. NEWSOM 5
separately to further emphasize the profound practical
consequences of the panel majority’s ruling. Despite the
clear legal mandate from voters in approving Proposition 66,
which reaffirmed the electorate’s support for the death
penalty, the Governor of California unilaterally repealed
California’s lethal injection protocol and instituted a
moratorium on state executions. The Governor and the
Secretary of the CDCR then agreed with the plaintiffs,
inmates on California’s death row, to voluntarily dismiss this
case on terms that will resurrect the inmates’ Eighth
Amendment challenge to the protocol if the Governor’s
moratorium is ever withdrawn. Cooper v. Newsom, 13 F.4th
857, 863–64 (9th Cir. 2021). Since 2006, California has not
executed an inmate on death row. The panel majority’s
decision rejecting the District Attorneys’ attempt to intervene,
ostensibly on the ground that they have no legal interest in
enforcing the death penalty, is directly contradicted by the
terms of Proposition 66, which expressly provides California
district attorneys with the right to seek to compel the CDCR
to carry out the death penalty. The panel majority’s refusal
to allow district attorneys to play their important statutory
role in enforcing the death penalty means that the specter of
this federal court litigation will continue to subvert the voters’
will and deny justice to victims’ families even if the
moratorium is at some point withdrawn.
Dissenting from the denial of rehearing en banc, Judge
VanDyke, joined by Judges Callahan, Ikuta and Bumatay,
wrote that he agreed and joined in full with Judge Bumatay’s
and Judge Callahan’s dissents. He wrote separately to briefly
make one supplemental observation about this circuit’s
inconsistent application of Rule 24. Judge VanDyke stated
that this court needs a standard that will result in setting a
more consistent threshold for intervention; the erratic
6 COOPER V. NEWSOM
application of Rule 24 needs correction, and if the circuit had
taken this case en banc it could have done so by tying Rule
24’s “interest” inquiry to the well-established standing
doctrine. But until something like that is done—either by this
court or the Supreme Court—future parties and panels will be
forced to address these issues against the backdrop of the
circuit’s inconsistent precedents, and the lingering appearance
of unfairness they perpetuate.
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.
Wagstaffe, San Mateo County District Attorney’s Office,
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 and Elizabeth Dahlstrom,
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; Rob Bonta, Attorney General; Attorney General’s
Office, Sacramento, California; for Defendants-Appellees.
COOPER V. NEWSOM 7
ORDER
A judge sua sponte called for a vote on whether to rehear
this case en banc. The matter failed to receive a majority of
votes of the nonrecused active judges in favor of en banc
consideration. Fed. R. App. P. 35(f). Judge Lee and Judge
Koh did not participate in the deliberations or vote in this
case. Rehearing en banc is DENIED.
Filed concurrently with this order are Judge W. Fletcher
and Judge Forrest’s concurrence in and Judge Bumatay’s,
Judge Callahan’s, and Judge VanDyke’s separate dissents
from the denial of rehearing en banc.
W. FLETCHER and FORREST, Circuit Judges, concurring
in the denial of rehearing en banc:
The question in this appeal is whether the District
Attorneys of California’s San Bernardino, San Mateo, and
Riverside counties may intervene in litigation challenging the
constitutionality of California’s chosen method of execution.
We held that because the District Attorneys have no authority
under California law to participate in choosing the method by
which California executes condemned prisoners, or to
represent in court those who do have that authority, the
district court properly denied intervention. Cooper v.
Newsom, 13 F.4th 857, 864–69 (9th Cir. 2021).
The District Attorneys did not seek panel or en banc
rehearing of our decision. Instead, one of our colleagues sua
sponte called for rehearing en banc, contending that the
District Attorneys are entitled to intervene as of right under
8 COOPER V. NEWSOM
Federal Rule of Civil Procedure 24(a)(2). A majority of our
court voted not to rehear the case. Several of our colleagues
now dissent from that decision.
The voters of California approved the Death Penalty
Procedures Initiative of 2016, otherwise known as
Proposition 66, retaining the death penalty. Inter alia,
Proposition 66 created a mechanism allowing District
Attorneys to move in the state court that imposed the death
penalty for an order directing the California Department of
Corrections and Rehabilitation (“CDCR”) to “perform any
duty needed to enable it to execute the judgment.” Cal. Penal
Code § 3604.1(c). But neither Proposition 66, nor any other
provision of California law, gives District Attorneys authority
to participate in choosing the method by which California
executes condemned prisoners, or to represent in court those
who have the authority to make that choice.
California law is clear that the responsibility to formulate,
promulgate, and effectuate California’s execution protocols
is assigned to the defendants in this action—the Governor, the
Secretary of the CDCR, and the Warden of San Quentin
Prison. Cal. Const. art. V, § 1; Cal. Penal Code § 3604; Cal.
Penal Code §§ 3603, 3605, 3607. California law is also clear
that the Attorney General, rather than a District Attorney, has
the responsibility to represent these defendants. Cal. Gov’t
Code § 12512. The California Supreme Court has held that
the authority of District Attorneys to participate in civil
litigation is “narrow and specific,” as expressly defined by
statute. Safer v. Superior Ct. of Ventura Cnty., 15 Cal.3d 230,
237 (1975). Because the District Attorneys have no statutory
authority to participate in this litigation, they have no right to
intervene under Rule 24(a)(2).
COOPER V. NEWSOM 9
Our dissenting colleagues contend that our panel’s
decision “cast[s] aside the will of the people” and “seriously
mangle[s] our Rule 24 caselaw.” Judge Bumatay Dissent
at 18. They are mistaken on both counts. Our opinion
faithfully follows California law; correctly applies
Rule 24(a)(2); and is consistent with two analogous cases
decided by our sister circuits.
I. Rule 24(a)(2)
Rule 24(a)(2) allows intervention as of right if a party
“claims an interest relating to the property or transaction that
is the subject of the action, and is so situated that disposing of
the action may as a practical matter impair or impede the
[party’s] ability to protect its interest, unless existing parties
adequately represent that interest.” Fed. R. Civ. P. 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) (citations omitted).
“An applicant for intervention has a significantly
protectable interest if the interest is protected by law and
10 COOPER V. NEWSOM
there is a relationship between the legally protected interest
and the plaintiff’s claims.” United States v. Alisal Water
Corp., 370 F.3d 915, 919 (9th Cir. 2004). The legally
protected interest need not be protected under the statute
under which the litigation is brought; it is sufficient for the
interest to be “protectable under any statute.” Id. As we
noted in our opinion, Cooper, 13 F.4th at 865, we weigh both
practical and equitable concerns, and we interpret the Rule’s
requirements broadly in favor of intervention. Alisal Water
Corp., 370 F.3d at 919.
The suit into which the District Attorneys seek to
intervene was brought by condemned prisoners against the
Governor, the Secretary of the CDCR, and the Warden of San
Quentin, challenging the constitutionality of California’s
chosen method of execution. This case has a long history,
which we recount in our opinion. See Cooper, 13 F.4th at
860–62. The suit was filed in 2006 by death row inmate
Michael Morales, challenging California’s then-existing
execution protocol. The District Attorneys moved to
intervene in June and July 2018.
Our dissenting colleagues argue that the District
Attorneys are entitled to intervene on the ground that they
have significant interest in enforcing the capital sentences in
their counties. We agree that the District Attorneys have the
authority to conduct all prosecutions for public offenses,
including capital offenses. Cal. Const. art. XI, § 1(b); Cal.
Gov’t Code § 26500. California law gives its District
Attorneys “sole discretion to determine whom to charge, what
charges to file and pursue, and what punishment to seek.”
Dix v. Superior Ct., 53 Cal.3d 442, 451 (1991). We also
agree that the District Attorneys have the authority to seek
orders directing the CDCR to carry out judgments of
COOPER V. NEWSOM 11
execution entered in their counties. Cal. Penal Code
§ 3604.1(c). However, the District Attorneys’ statutory
authority does not include the authority to choose the method
by which California executes condemned inmates, or to
defend in court those who do have the authority to make that
choice.
Our colleagues disagree and contend that California
Penal Code § 3604.1(c), enacted pursuant to Proposition 66,
gives the District Attorneys a significant protectable interest
in the litigation over the constitutionality of California’s
chosen method of execution. Judge Bumatay Dissent at 17,
23–24; Judge Callahan Dissent at 30; Judge VanDyke Dissent
at 36. Section 3604.1(c) provides:
The court which rendered the judgment of
death has exclusive jurisdiction to hear any
claim by the condemned inmate that the
method of execution is unconstitutional or
otherwise invalid. Such a claim shall be
dismissed if the court finds its presentation
was delayed without good cause. If the
method is found invalid, the court shall order
the use of a valid method of execution. If the
use of a method of execution is enjoined by a
federal court, the Department of Corrections
and Rehabilitation 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 own
motion, on motion of the District Attorney or
12 COOPER V. NEWSOM
Attorney General, or on motion of any victim
of the crime as defined in subdivision (e) of
Section 28 of Article I of the California
Constitution.
As we wrote in our opinion, the plain language of § 3604.1(c)
“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.”
Cooper, 13 F.4th at 867. It does not authorize the District
Attorneys to participate in choosing the method of execution,
or to participate in civil litigation challenging the method of
execution.
Our colleagues contend that our application of
Rule 24(a)(2) is inconsistent with our precedent. They rely
on a line of cases in which we have held that an intervenor
had a significant protectable interest under Rule 24(a)(2)
deriving neither from an express statutory interest nor from
a real property right. Judge Bumatay Dissent at 21–23 (citing
Idaho v. Freeman, 625 F.2d 886, 887 (9th Cir. 1980);
Washington State Bldg. & Constr. Trades Council, AFL-CIO
v. Spellman, 684 F.2d 627, 629–30 (9th Cir. 1982);
Sagebrush Rebellion, Inc. v. Watt, 713 F.2d 525, 526–28 (9th
Cir. 1983); Idaho Farm Bureau Fed’n v. Babbitt, 58 F.3d
1392 (9th Cir. 1995)).
In Idaho v. Freeman, we held that the National
Organization for Women, a leading national advocate of the
Equal Rights Amendment to the U.S. Constitution, had a right
to intervene in a suit challenging procedures for the
ratification of the proposed Amendment. 625 F.2d at 887. In
Washington State Bldg. & Const. Trades Council, AFL-CIO,
we held that a public interest organization, Don’t Waste
COOPER V. NEWSOM 13
Washington, had a right to intervene in litigation challenging
the constitutionality of a successful ballot initiative that they
had sponsored. 684 F.2d at 629–30. In Sagebrush Rebellion,
we held that a group of would-be intervenors—including the
National Audubon Society, five environmental Idaho
nonprofit organizations, and four Idaho residents—had a right
to intervene in a suit challenging the legality of the Secretary
of the Interior’s actions surrounding the creation of the Snake
River Birds of Prey National Conservation Area because of
their active role in the administrative establishment of the
conservation area and their interest in the preservation of the
birds and the birds’ habitat. 713 F.2d at 526–28. Finally, in
Idaho Farm Bureau Federation, we held that the Idaho
Conservation League and the Committee for Idaho’s High
Desert had a right to intervene in litigation challenging the
U.S. Fish and Wildlife Service’s listing of an endangered
species because they advocated for the listing throughout the
administrative process. 58 F.3d at 1397–98.
These cases are inapposite. Each of them addresses
intervention by non-governmental organizations in actions
challenging the legality of measures they sponsored through
legislative processes or sought in formal administrative
rulemaking proceedings. None of them supports intervention
as of right by government officials who lack statutory
authority to participate in the formulation of the policy at
issue, or to represent the government entity or official who
does have that authority. In the case before us, the state
officials responsible under state law for choosing the
appropriate method or execution have been sued, and they are
represented by the state Attorney General, the state official
responsible under state law for defending them.
14 COOPER V. NEWSOM
Judge Bumatay contends that the District Attorneys’ role
as public officials gives them at least as valid an interest in
civil litigation affecting their interest in seeing death
judgments carried out as the interests the non-governmental
organizations and individuals had in the above cases. Judge
Bumatay Dissent at 23. In fact, the opposite is true. It is
because the District Attorneys are public officials, and
because their authority to pursue civil litigation is limited by
state law, that they do not have an interest sufficient to
support intervention under Rule 24(a)(2). Cooper, 13 F.4th
at 866–67; cf. United States v. City of Los Angeles, 288 F.3d
391 (9th Cir. 2002) (granting intervention to police officers’
union in suit challenging the constitutionality of policing
procedures based on its right to negotiate terms and
conditions of its members’ employment).
Judge Bumatay further contends that “[w]hile California
courts have recognized some limits to district attorneys’
authority to pursue civil prosecutions, no California court has
said that district attorneys are prohibited from defending the
constitutionality of state laws, such as the State’s death-
penalty protocol.” Judge Bumatay Dissent at 25 (emphasis in
original). This is incorrect. The foundation California case
is Safer, decided by the California Supreme Court almost fifty
years ago. The Court wrote, “By the specificity of its
enactments the Legislature has manifested its concern that the
district attorney exercise the power of his office only in such
civil litigation as that 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.” Safer, 15 Cal.3d at 235. Safer requires
statutory authorization not only for prosecution by District
COOPER V. NEWSOM 15
Attorneys, but also for “interven[tion],” “appearance,”
“defen[se],” “represent[ation],” and “participation” by
District Attorneys. Id. at 235–37.
The two cases cited by Judge Bumatay in support of this
contention are also inapposite. Judge Bumatay Dissent
at 25–26. District Attorneys are statutorily authorized to
bring civil suits to enforce California’s Unfair Competition
Law (“UCL”). See Cal. Bus. & Prof. Code §§ 17204,
17206(a). In Abbott Laboratories v. Superior Court, 9
Cal.5th 642, 663–664 (2020), the Court held that a District
Attorney may seek a state-wide injunction under the UCL. In
People v. McKale, 25 Cal.3d 626, 633–634 (1979), the Court
held that a District Attorney may sue under the UCL to
enforce California’s Mobilehome Parks Act.
II. Our Sister Circuits
In analogous cases, our sister circuits have recognized
similar limits on district attorneys’ interest in civil litigation.
As we discussed in our opinion, Cooper, 13 F.4th at 867–88,
the Fifth Circuit in Saldano v. Roach, 363 F.3d 545, 551–56
(5th Cir. 2004), denied a district attorney intervention as of
right in a Texas prisoners’ habeas corpus proceeding. The
court held that Texas law did not grant district attorneys the
authority to represent state officials or the State in federal
habeas corpus proceedings; that authority was delegated to
the Attorney General. Id. at 552. Similarly, the Third Circuit
in Harris v. Pernsley, 820 F.2d 592, 600 (3rd Cir. 1987),
denied a district attorney the right to intervene in
constitutional litigation challenging the conditions in
Pennsylvania state prisons. The court held that the scope of
the district attorneys’ interest was “defined by the scope of
his legal duties under Pennsylvania law” and they had “no
16 COOPER V. NEWSOM
legal duties or powers with regard to the conditions in the
Philadelphia prison system.” Id. at 597, 600.
In both cases, the Fifth and Third Circuits recognized that
state law gave the district attorneys an interest in prosecuting
criminal cases. Those courts also recognized that the district
attorneys’ interest in prosecuting cases and seeing the
resulting judgments of conviction and punishments carried
out would be affected as a practical matter by the litigation.
But those courts nevertheless held that the district attorneys’
role was limited by state law, and that they therefore did not
have a legally protectable interest that would merit
intervention as of right. Saldano, 363 F.3d at 553; Harris,
820 F.2d at 601–02.
***
While the people of California chose in Proposition 66 to
retain the death penalty and to give District Attorneys an
additional mechanism to pursue enforcement of a death
sentence, they did not give District Attorneys authority to
participate in the State’s choice of execution methods or in
the legal defense of those methods. Cal. Penal Code
§ 3604.1(c). The people of California, through their chosen
representatives, assigned the ultimate duty to execute state
laws to the Governor, Cal. Const. art. V, § 1; the duty to
oversee execution procedures to the Secretary of the CDCR,
Cal. Penal Code § 3604; the duty to implement execution to
the Warden of San Quentin, Cal. Penal Code §§ 3603, 3605,
3607; and the duty to defend state laws and officers to the
Attorney General, Cal. Gov’t Code § 12512. Our dissenting
colleagues gloss over these facts, suggesting that Californians
have spoken in a singular voice in favor of the death penalty
and the expansion of the District Attorneys’ authority into
COOPER V. NEWSOM 17
areas statutorily delegated to other state officials. We cannot
agree. Our opinion respects the will of California voters by
considering not only Proposition 66, but also the statutory
roles assigned to California’s respective state officials by the
people’s elected representatives.
BUMATAY, Circuit Judge, with whom GOULD,
CALLAHAN, IKUTA, BENNETT, and VANDYKE, Circuit
Judges, join, dissenting from the denial of rehearing en banc:
With the passage of Proposition 66 in 2016, the people of
California unambiguously expressed a desire to retain the
death penalty and to remove obstacles to carrying-out death
judgments. See Briggs v. Brown, 3 Cal. 5th 808 (2017).
Through Proposition 66, the people empowered California’s
elected district attorneys to ensure that the California
Department of Corrections and Rehabilitation, the agency
tasked with administering the death penalty, performs “any
duty needed to enable it to execute the judgment [of death].”
Cal. Penal Code § 3604.1(c). California law also charges
district attorneys with seeking the death penalty on “behalf of
the people.” See Cal. Gov’t Code § 26500.
Despite the continued support of the people of California,
the death penalty remained tied-up in the federal courts. In
2006, a California death-row inmate challenged California’s
then-existing death penalty protocol as violating the U.S.
Constitution. The inmate sued the Governor of California,
the Secretary of the California Department of Corrections and
Rehabilitation, and the Warden of San Quentin State Prison.
The California Attorney General defended the action in
federal court. Over the ensuing years, about two dozen other
18 COOPER V. NEWSOM
condemned inmates successfully intervened in the 42 U.S.C.
§ 1983 action and received a stay of execution. Because of
this litigation, there was “a de facto moratorium on all
executions in California.” Morales v. Cate, 623 F.3d 828,
830 (9th Cir. 2010) (per curiam).
In 2018, the District Attorneys of San Bernardino,
Riverside, and San Mateo, who each obtained death
judgments against various plaintiff inmates, sought to
intervene as of right under Federal Rule of Civil Procedure
24(a)(2). The District Attorneys contended that the Attorney
General represented the interest of California’s executive
officers in the litigation—not the interest of the people. The
District Attorneys argued that the voice of the people, for
whom the death penalty was sought, must be permitted to
participate. The district court denied the motion, and soon
after, the Governor of California unilaterally imposed a
moratorium on all executions. The District Attorneys
appealed the denial of intervention. And a divided panel of
our court affirmed, holding that the District Attorneys had no
“significant protectable” interest in the death penalty
litigation. Cooper v. Newsom, 13 F.4th 857, 865 (9th Cir.
2021).
In denying the District Attorneys’ intervention in this
case, not only do we cast aside the will of the people, but we
seriously mangle our Rule 24 caselaw. As a court, we’ve set
a rather low bar for what constitutes a “significantly
protectable” interest. We are not to conduct an exacting and
penetrating review of the claimed interest since the whole
point of intervention is to provide “both efficient resolution
of issues and broadened access to the courts.” Wilderness
Soc. v. U.S. Forest Serv., 630 F.3d 1173, 1179 (9th Cir. 2011)
(en banc) (simplified). And it does not require the interest to
COOPER V. NEWSOM 19
be conferred by a directly on-point statute. See, e.g., Kalbers
v. U.S. Dep’t of Just., — F.4th —, 2021 WL 6123196, at *9
(9th Cir. 2021) (holding that FOIA, which allows the
government to claim exemptions from disclosure, created a
protectable interest for a third-party intervenor). Instead, we
are guided by “practical and equitable considerations and
construe the Rule broadly in favor of proposed intervenors.”
Wilderness Soc., 630 F.3d at 1179 (simplified); see also
W. Watersheds Project v. Haaland, — F.4th —, 2022 WL
39845, at *5 (9th Cir. 2022) (“In addition to mandating broad
construction, our review is guided primarily by practical
considerations, not technical distinctions.” (simplified)).
While this case is about interpreting Rule 24, at its core,
it is about the will of the people of California and our duty to
respect it. The State of California and her people have vested
the District Attorneys with an interest in enforcing death
judgments. And in case after case, we’ve broadly construed
the scope of a protectable interest. But, for some reason, we
have decided to nickel-and-dime the District Attorneys here.
Perhaps it’s because this case involves the death penalty. But
the panel’s decision has nothing to do with the merits of the
death penalty. And we shouldn’t manipulate our intervention
doctrine simply because a case touches on disfavored policy.
What’s more, the panel’s decision will likely have far-
reaching effects on other areas of the law—like civil rights
and environmental rights. So we should not have been so
quick to decline to rehear en banc the panel’s decision.
For these reasons, I respectfully dissent from the denial of
rehearing en banc.
20 COOPER V. NEWSOM
I.
Under Rule 24(a)(2), we must permit anyone to intervene
in a federal action if the person “claims an interest relating to
the property or transaction that is the subject of the action,
and is so situated that disposing of the action may as a
practical matter impair or impede the movant’s ability to
protect its interest, unless existing parties adequately
represent that interest.” Fed. R. Civ. P. 24(a)(2). We use a
four-part test in evaluating a Rule 24 motion:
(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 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., 630 F.3d at 1177 (simplified).
For the last 40 years, we’ve liberally construed Rule
24(a)(2) and tilted the inquiry in “favor of intervention.” See
Washington State Bldg. & Const. Trades Council v. Spellman,
684 F.2d 627, 630 (9th Cir. 1982). This broad view of Rule
24 is rooted in concerns of judicial efficiency and access to
justice: “[b]y allowing parties with a practical interest in the
outcome of a particular case to intervene, we often prevent or
simplify future litigation involving related issues; at the same
time, we allow an additional interested party to express its
COOPER V. NEWSOM 21
views before the court.” United States v. City of Los Angeles,
288 F.3d 391, 398 (9th Cir. 2002) (simplified).
Our court denied the District Attorneys’ intervention
solely because they failed to satisfy the “significantly
protectable” interest prong of Rule 24. See Cooper, 13 F.4th
at 865. That prong has two components: whether (1) a
proposed intervenor “asserts an interest that is protected
under some law,” and (2) “there is a ‘relationship’ between
[the proposed intervenor’s] legally protected interest and the
plaintiff’s claims.” City of Los Angeles, 288 F.3d at 398(simplified). We erred on both components. Not only did we
disregard our longstanding view of what constitutes a
protectable interest. But we also significantly heightened the
“relationship” requirement between the protectable interest
and the plaintiff’s claims in the litigation.
We should have fixed both errors on en banc review.
A.
We’ve set a low threshold for evaluating a prospective
intervenor’s claim of a “significantly protectable” interest.
There’s no “clear-cut or bright-line rule,” because “[n]o
specific legal or equitable interest need be established” to
meet the test. Id. at 398 (simplified). Instead, the “interest”
test directs courts to make a “practical, threshold
inquiry,” and “is primarily a practical guide to disposing of
lawsuits by involving as many apparently concerned persons
as is compatible with efficiency and due process.” Id.(simplified). And there’s no requirement that the interest “be
protected by the statute under which the litigation is brought.”
Wilderness Soc., 630 F.3d at 1179. It is enough that the
22 COOPER V. NEWSOM
“interest is protected by some law.” Id. (emphasis added)
(simplified).
We’ve even gone so far to say that, “[i]n some contexts,
. . . interests less plainly protectable by traditional legal
doctrines suffice[] for intervention of right.” Sierra Club v.
EPA, 995 F.2d 1478, 1482 (9th Cir. 1993), abrogated on
other grounds by Wilderness Soc., 630 F.3d at 1177–81.
Examples of less concrete interests giving rise to a
“significantly protectable” interest abound in our caselaw:
• An environmental group had a right to intervene in a
challenge to a state law prohibiting the entry of
radioactive waste into Washington “as the public
interest group that sponsored the initiative.”
Spellman, 684 F.2d at 629–30.
• The National Audubon Society had a protectable
interest for mandatory intervention into a lawsuit
involving the creation of a conservation area because
“[a]n adverse decision in th[e] suit would impair the
society’s interest in the preservation of birds and their
habitats.” Sagebrush Rebellion, Inc. v. Watt, 713 F.2d
525, 526–28 (9th Cir. 1983).
• The National Organization for Women was entitled to
intervene as of right in a suit litigating the procedures
for ratification of the proposed Equal Rights
Amendment purely based on its “interest in the
continued vitality of the ERA.” State of Idaho v.
Freeman, 625 F.2d 886, 887 (9th Cir. 1980); see also
Sagebrush Rebellion, 713 F.2d at 527 (reading
Freeman to require intervention because the lawsuit
involved “a cause . . . that [NOW] had championed”).
COOPER V. NEWSOM 23
• A public interest group satisfied the interest
requirement because it had been “active in the process
[U.S. Fish and Wildlife Services] went through” to
list a particular snail species as endangered. Idaho
Farm Bureau Fed’n v. Babbitt, 58 F.3d 1392, 1398
(9th Cir. 1995).
1.
Based on this precedent, it’s clear we should have ruled
that the District Attorneys have a “significantly protectable”
interest in the litigation challenging the constitutionality of
California’s death penalty protocols. The District Attorneys
are elected officials whose offices were created by the
California Constitution. Cal. Const. art. XI, § 1(b). They are
empowered by law to “conduct on behalf of the people all
prosecutions for public offenses.” Cal. Gov’t Code § 26500.
They 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).
They also “may sponsor, supervise, or participate in any
project or program to improve the administration of justice.”
Cal. Gov’t Code § 26500.5. Thus, California law grants the
District Attorneys the general authority to prosecute and seek
the death penalty on “behalf of the people” and, along with
that, the responsibility to ensure that the judgments are
enforced.
While the District Attorneys’ general mandate to enforce
criminal judgments may be enough, Proposition 66 confirms
that they have exceeded the Rule 24 protectable-interest
threshold. By approving Proposition 66, the people of
California both expressly voiced their will to retain the death
penalty and enacted a law expanding the authority of district
24 COOPER V. NEWSOM
attorneys to carry out the punishment. Prop. 66, § 11
(approved Nov. 8, 2016, effective Oct. 25, 2017). California
law now provides:
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
own motion, on motion of the District
Attorney or Attorney General, or on motion of
any victim of the crime.
Cal. Penal Code § 3604.1(c). As Judge VanDyke correctly
noted, “[t]his statute codifies the District Attorneys’ specific
interest in ensuring that death penalty judgments are carried
out.” Cooper, 13 F.4th at 873 (VanDyke, J., dissenting).
And it’s clear that such authority “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.”
Id.
The panel majority now declares that none of our prior
Rule 24(a)(2) precedent is relevant in this case because the
District Attorneys are “public officials.” Concurrence at 14.
The panel majority maintains that to intervene, “government
officials,” unlike other parties, must have “statutory authority
to participate in the formulation of the policy at issue, or to
represent the government entity or official who does have that
COOPER V. NEWSOM 25
authority.” Id. at 13. The panel majority cites no authority
for this proposition. And nothing in our caselaw establishes
such different rules for government officials and other parties.
The text of Rule 24(a)(2) surely doesn’t support a distinction.
The panel majority also contends that because the District
Attorneys’ “authority to pursue civil litigation is limited by
state law,” that means “that they do not have an interest
sufficient to support intervention under Rule 24(a)(2).” Id.
at 14. Again, that is incorrect. While California courts have
recognized some limits to district attorneys’ authority to
pursue civil prosecutions, no California court has said that
district attorneys are prohibited from defending the
constitutionality of state laws, such as the State’s death-
penalty protocol.
The panel majority draws its conclusion from Safer v.
Superior Court of Ventura County, 15 Cal. 3d 230, 233,
234–36 (1975), a case where a district attorney dropped
criminal proceedings and opted to “prosecut[e]” the case
through a contempt charge in a “civil case involving private
parties in an economic dispute.” Id. at 234–36. The
California Supreme Court held that the “absence of any
statute empowering the district attorney to appear in private
litigation such as the instant case” showed that the district
attorney’s actions did not serve the public interest. Id.at 238–39 (emphasis added). And so Safer is not as broad as
the panel majority would have it.
In fact, subsequent California cases show that any
requirement for statutory authority to enter civil proceedings
is not stringently construed and no on-point statutory grant is
26 COOPER V. NEWSOM
necessary. See, e.g., Abott Lab’ys v. Superior Ct. of Orange
Cnty., 9 Cal. 5th 642, 654–58 (2020) (allowing district
attorneys to seek civil remedies under an unfair competition
law even without an express statutory authority to do so);
People v. McKale, 25 Cal. 3d 626, 633 (1979) (permitting
district attorneys to civilly prosecute violations of one statute
under a similar statute). And here, as stated above, California
law empowers district attorneys to intervene in civil actions
to force the State to effectuate its duty to carry out the death
penalty. Cal. Penal Code § 3604.1(c). Thus, contrary to the
panel majority’s contention, California law does not block the
District Attorneys from intervening under Rule 24(a)(2).
In short, if an “interest protected by law” may exist
simply by “sponsoring” an activity, having an “interest” in
the outcome, or by “championing” the subject of the
litigation, then the District Attorneys easily exceeded that
threshold here.
2.
The panel majority erred by requiring the District
Attorneys to show an on-point statutory grant to intervene in
challenges to death penalty protocols. See Cooper, 13 F.4th
at 866. It concludes that the District Attorneys have no
“significant protectable” interest because they “have no
authority to choose the method by which California will
execute condemned inmates” and no authority “to defend the
State against constitutional challenges to execution
protocols.” Id. at 866–68.
But the panel majority “mistakenly focuses on the
underlying legal claim instead of the property or transaction
COOPER V. NEWSOM 27
that is the subject of the lawsuit.” Wilderness Soc., 630 F.3d
at 1178. We don’t myopically focus on “technical
distinctions,” Haaland, — F.4th —, 2022 WL 39845, at *5
(simplified), nor do we require the type of direct statutory
authority described by the majority, see Kalbers, — F.4th —,
2021 WL 6123196, at *9. Rather, we simply evaluate,
through a practical and generous lens, whether the proposed
intervenor’s interest is protected by “some law.” Wilderness
Soc., 630 F.3d at 1179 (simplified). It thus follows that the
cramped view espoused by the panel can neither be squared
with precedent nor with our guiding principles favoring
intervention.
For example, compare City of Los Angeles with this case.
There, a police union sought mandatory intervention in an
action that the United States brought against the City of Los
Angeles and the Los Angeles Police Department over the
Department’s alleged pattern and practice of depriving
citizens of their constitutional rights. 288 F.3d at 396. We
held that the police union, which represented the LAPD’s
“rank and file” officers, had a protectable interest in the
merits of the action because the complaint sought injunctive
relief and made factual allegations against its member
officers, even if no officer had an interest in the precise
constitutional claims asserted. Id. at 398–99. There, we
didn’t look to see if the police officers had a statutory right to
intervene or the authority to engage in adversarial litigation.
We instead focused on the litigation’s impact on the officers
and their job performance. We should have done the same
here. Because as a practical matter, the death-penalty
litigation affects the District Attorneys’ ability to ensure that
death judgments are carried out effectively.
28 COOPER V. NEWSOM
B.
The “significant protectable” interest prong also requires
a “relationship” between the proposed intervenors’ “legally
protected interest and the plaintiff’s claims.” Id. at 398(simplified). Once again, this requirement is a low hurdle.
While the litigation must not be too remote from the
protected interest, only some relationship to “the underlying
subject matter of the litigation” is required. Alisal Water
Corp., 370 F.3d at 920; see id. (holding that an interest
“several degrees removed” from the litigation will not
suffice). The relationship requirement is met “if the
resolution of the plaintiff’s claims actually will affect the
applicant,” City of Los Angeles, 288 F.3d at 398 (simplified),
or if it may lead to a practical impairment of interests, id.
at 401. We’ve never said that the litigation must be
inextricably tied to the interest or that the litigation must
infringe on the core of the protected interest. But that’s what
the panel majority essentially held—again using a more
stringent standard than our precedent calls for.
The District Attorneys’ interest in ensuring that death
judgments are carried out is directly related to the litigation,
which seeks to render (and has rendered) the State’s
execution methods invalid. As the panel even noted, the stays
in the litigation have “effectively suspended the death penalty
in California and ha[ve] thereby prevented the District
Attorneys from successfully moving in the Superior Court to
set execution dates.” Cooper, 13 F.4th at 867.
Yet the panel majority inexplicably held that the District
Attorneys’ interests didn’t relate to the litigation. It did so by
holding that the litigation only “incidentally affects” the way
District Attorneys may carry out their duties. Id. at 867. The
COOPER V. NEWSOM 29
panel majority reasoned that the “District Attorneys’ general
interest in executing condemned inmates” and “their more
specific interest in requesting execution dates” is not
implicated by the litigation, “which concerns only the method
by which the State may perform executions.” Id.
The panel majority is wrong for two reasons. First, it
changed the threshold for relatedness by requiring an effect
on the core protected interest. According to the panel
majority, “incidental[]” effects are not enough. But that’s not
what our precedent says. Instead, our cases only require that
the resolution of the claims may practically impair or
“actually . . . affect” the intervenor and her interest. City of
Los Angeles, 288 F.3d at 398, 401. Second, even if the
panel’s standard were the law, the District Attorneys more
than met it. As we have said, the litigation has led to the “de
facto” (and now de jure) “moratorium” on the death penalty.
Cate, 623 F.3d at 829–30. So the litigation wouldn’t merely
“incidentally affect[]” the District Attorneys’ interest in
effecting the death penalty, it would (and did) completely
destroy it. As Judge VanDyke observed, it’s “a little like
saying that a statute only ‘incidentally affects’ car dealers
because all it does is prevent them from selling cars.”
Cooper, 13 F.4th at 873–74 (VanDyke, J., dissenting).
It’s clear that the heightened standard created by the panel
majority is untethered from our precedent and should have
been revisited.
II.
With this case we disregard the will of the people of
California and our precedent. We now sow more confusion
in our law—impacting not only the administration of the
30 COOPER V. NEWSOM
death penalty, but also other areas including environmental
litigation, voting rights, and civil rights. We should’ve
reheard this case. I respectfully dissent.
CALLAHAN, Circuit Judge, joined by BUMATAY and
VANDYKE, Circuit Judges, dissenting from the denial of
rehearing en banc:
I fully join Judge Bumatay’s dissent from the denial of
rehearing en banc. I write separately to further emphasize the
profound practical consequences of the panel majority’s
ruling.
California voters have a lengthy history of supporting the
death penalty. The current version of the state’s death
penalty statute dates back to 1978 when voters passed
Proposition 7 with the intent to “expand and strengthen the
death penalty.” People v. Solis, 46 Cal. App. 5th 762,
772–73, 776–77 (2020). Californians subsequently rejected
Proposition 34 (in 2012) and Proposition 62 (in 2016), both
of which would have repealed the death penalty.1
In 2016 voters also approved Proposition 66, which
reaffirmed the electorate’s support for the death penalty and
was designed “to facilitate the enforcement of judgments and
achieve cost savings in capital cases.” Briggs v. Brown,
3 Cal. 5th 808, 822 (2017). Proposition 66 also gave district
attorneys the right to file a motion to compel the California
1
History of Capital Punishment in California, Cal. Dep’t Corr. &
Rehab., https://www.cdcr.ca.gov/capital-punishment/history/ (last visited
Jan. 16, 2022).
COOPER V. NEWSOM 31
Department of Corrections and Rehabilitation (“CDCR”) to
“perform any duty needed to enable it to execute” judgments
of death. Cal. Penal Code § 3604.1(c).
Despite this clear legal mandate from voters, the
Governor of California unilaterally repealed California’s
lethal injection protocol and instituted a moratorium on state
executions. The Governor and the Secretary of the CDCR
then agreed with the plaintiffs, inmates on California’s death
row, to voluntarily dismiss this case on terms that will
resurrect the inmates’ Eighth Amendment challenge to the
protocol if the Governor’s moratorium is ever withdrawn.
Cooper v. Newsom, 13 F.4th 857, 863–64 (9th Cir. 2021).
Notably absent from this litigation is any party interested
in pursuing the California electorate’s clearly stated
objectives. Yet the panel majority rejected the district
attorneys’ attempt to intervene to do just that, ostensibly on
the ground that the district attorneys have no legal interest in
enforcing the death penalty. This position is directly
contradicted by the terms of Proposition 66, which expressly
provides California district attorneys with the right to seek to
compel the CDCR to carry out the death penalty. Cal. Penal
Code § 3604.1(c); Cooper, 13 F.4th at 872–74 (VanDyke, J.,
dissenting).
The district attorneys also have a strong interest in
providing justice to the families of the plaintiffs’ victims.
Proposition 66 included “a series of findings and declarations
to the effect that California’s death penalty system is
inefficient, wasteful, and subject to protracted delay, denying
murder victims and their families justice and due process.”
Briggs, 3 Cal. 5th at 823 (emphasis added).
32 COOPER V. NEWSOM
The case of Michael Morales, the original plaintiff in this
action, provides a prime example of the concerns that
animated California voters. Morales’s victim, seventeen-
year-old Terri Winchell, disappeared on January 8, 1981,
after leaving her house to pick up some food. Morales v.
Woodford, 388 F.3d 1159, 1163 (9th Cir. 2004). A few days
later,
Terri was found naked except for a shirt and
bra, which were pulled up over her breasts.
She had suffered six blows to the side of her
head and seventeen blows to the back of her
head. The base of her skull had been
shattered. Her skull, cheek bones, and jaw
were fractured. She had been stabbed four
times in the chest. Her face and body were
severely bruised and much of the skin of her
front side was torn up. She had multiple
wounds on her hands and forearms, typical of
a person defending herself.
Id. Morales was convicted of Terri’s rape and murder and
sentenced to death in June 1983. People v. Morales, 48 Cal.
3d 527, 540 (1989). After more than two decades of
additional state and federal court litigation, we denied his
petition for habeas relief in 2004. Morales v. Woodford,
388 F.3d at 1166–67, 1180.
Morales was finally scheduled to be executed in February
2006, more than 25 years after Terri’s murder. Morales v.
Hickman, 438 F.3d 926, 927 (9th Cir. 2006). But Morales
then brought this case challenging California’s lethal
injection protocols, kicking off more than a decade of
additional state and federal court litigation. Cooper, 13 F.4th
COOPER V. NEWSOM 33
at 861–62. California’s administrative proceedings instituted
in response to the litigation were so lengthy and complicated
that the CDCR has an entire page on its website devoted to
recounting this history.2 Meanwhile, Terri’s family—and the
families of other victims—have repeatedly and
unsuccessfully sought to enforce the judgments against
Morales and other death row inmates.3 It has now been more
than 40 years since Morales raped and murdered Terri, and
despite his death sentence Morales has outlived both Terri’s
brother and mother.4
This is not the first time the litigation strategies of
California’s governor and attorney general have effectively
left district attorneys and victims’ families without
representation. For example, recently we were confronted
with a case where the California attorney general had
successfully defended a 1991 murder conviction for decades,
even obtaining a favorable result before a three-judge panel
of this court. Ellis v. Harrison, 891 F.3d 1160, 1162 (9th Cir.
2018). After the inmate petitioned for rehearing en banc, the
attorney general changed positions and asked us to grant
habeas relief, which we agreed to do in light of the State’s
2
Timeline of Lethal Injection Protocol Regulations, Cal. Dep’t Corr.
& Rehab., https://www.cdcr.ca.gov/capital-punishment/lethal-injection-
timeline/ (last visited Jan. 16, 2022).
3
Id.; see also In re Alexander, 859 F. App’x 32, 34 (9th Cir. 2021).
4
Obituary of Barbara Christian, Legacy.com,
https://www.legacy.com/us/obituaries/recordnet/name/barbara-christian-
obituary?id=10361068 (last visited Jan. 16, 2022); Obituary of Greg
McCormack Winchell, Legacy.com, https://www.legacy.com/us/obitua
ries/recordnet/name/greg-winchell-obituary?id=22890207 (last visited Jan.
16, 2022).
34 COOPER V. NEWSOM
concession. Ellis v. Harrison, 947 F.3d 555, 556 (9th Cir.
2020) (en banc). But before we considered the question, we
appointed an amicus curiae to defend the judgment and
represent the interests of not only the district attorney that had
obtained the conviction, but also “the victims and the
community that the prosecutor is charged to represent.” Ellis,
947 F.3d at 569 (Callahan, J., dissenting). Here, the panel
majority’s decision ensures that there is no party with a seat
at the table in this litigation to defend these interests in this
case. Federal Rule of Civil Procedure 24(a)(2) should not be
read in a way that ignores these interests and prevents not
only this court, but the Supreme Court from considering the
underlying merits of the arguments of those that wish to
defend California’s criminal convictions and the imposition
of capital punishment.
Since 2006, California has not executed an inmate on
death row. Despite the California voters’ efforts to change
that situation, the panel majority’s refusal to allow district
attorneys to play their important statutory role in enforcing
the death penalty means that the specter of this federal court
litigation will continue to subvert the voters’ will and deny
justice to victims’ families even if the moratorium is at some
point withdrawn. The people of California gave their district
attorneys the express authority to facilitate the enforcement
of the death penalty. The panel majority’s decision allows
the parties in this case to circumvent those rights by ensuring
that no one interested in defending them is permitted to do so,
effectively silencing the voices of victims, their families, and
California’s voters. I dissent from the decision not to rehear
this case en banc.
COOPER V. NEWSOM 35
VANDYKE, Circuit Judge, with whom CALLAHAN,
IKUTA, and BUMATAY, Circuit Judges, join, dissenting
from the denial of rehearing en banc:
I agree with Judge Bumatay and Judge Callahan’s
excellent dissents, and join both in full. I write separately to
briefly make one supplemental observation about our circuit’s
inconsistent application of Rule 24. As Judge Bumatay
describes, when surveying our circuit’s cases analyzing
whether a party has a “significantly protectable” interest to
warrant intervention, it is hard not to come away with the
impression that the level of “interest” we have required of
potential intervenors has varied significantly. It is
understandable that such differential treatment could lead the
public to wonder whether the variance is a result of
something other than rote application of the intervention
standard itself. Correct or not, that perception is unfortunate
and reflects badly on our court and the appearance of
impartiality. We need a standard that will result in setting a
more consistent threshold for intervention.
One candidate to offer more stability to our Rule 24
analysis is looking to the related doctrine of standing. The
Supreme Court has already indicated that parties seeking to
intervene must meet the traditional standing requirements.
See Hollingsworth v. Perry, 570 U.S. 693, 705 (2013) (“That
means that standing must be met by persons seeking appellate
review, just as it must be met by persons appearing in courts
of first instance.” (internal quotation marks omitted));
Arizonans for Official English v. Arizona, 520 U.S. 43, 65
(1997) (“An intervenor cannot step into the shoes of the
original party unless the intervenor independently fulfills the
requirements of Article III.” (internal quotation marks
omitted)). Standing is a “irreducible constitutional
36 COOPER V. NEWSOM
minimum,” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560
(1992), that applies with equal force to parties seeking to
intervene. Linking Rule 24’s “interest” inquiry to the well-
established standard for standing might go a long way
towards smoothing out our inconsistent intervention
requirements.
As Judge Bumatay limns in his dissent, our circuit has in
the past allowed intervention for parties whose Article III
standing was suspect at best. So it may be that some of our
past Rule 24 cases have set the intervention bar too low. This
past watering-down of the intervention requirements by our
court only makes the panel’s ruling here less defensible,
however, given that the District Attorneys clearly had
standing to participate in this case. As I explained in my
dissent from the original panel decision, “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.’” Cooper v.
Newsom, 13 F.4th 857, 874 (9th Cir. 2021) (VanDyke, J.,
dissenting) (emphasis added) (alterations and citation
omitted) (quoting Maryland v. King, 567 U.S. 1301, 1303
(2012) (Roberts, C.J., in chambers)).
Our erratic application of Rule 24 needs correction, and
if our circuit had taken this case en banc it could have done
so by tying Rule 24’s “interest” inquiry to our well-
established standing doctrine. But until something like that
is done—either by our court or the Supreme Court—future
parties and panels will be forced to address these issues
against the backdrop of our inconsistent precedents, and the
COOPER V. NEWSOM 37
lingering appearance of unfairness they perpetuate. I
respectfully dissent from our decision not to rehear this case.