California’s top court appears divided on ballot measure to speed up executions

A view of the gurney inside the new lethal injection chamber at San Quentin State Prison.
A view of the gurney inside the new lethal injection chamber at San Quentin State Prison.
(Wally Skalij / Los Angeles Times)

The California Supreme Court appeared closely divided Tuesday over the constitutionality of a ballot measure passed in November to speed up executions.

Proposition 66, sponsored by prosecutors, would require courts to rapidly review death penalty appeals, force more criminal defense lawyers to represent death row inmates and remove public review requirements for the state’s lethal injection procedures.

An opponent of the death penalty sued to block the measure after the election, arguing it usurped the power of the judicial branch to run the courts.


During arguments in Los Angeles, several justices said it was clear that the California Supreme Court could not meet the measure’s five-year deadlines for resolving death penalty appeals without sacrificing attention to other kinds of cases.

When told by the measure’s advocates that the deadlines were mere targets, the justices noted that the wording of the ballot measure suggested otherwise.

“So it is a mandatory deadline that is toothless?” asked Justice Leondra Kruger.

Justice Mariano-Florentino Cuellar said the measure appeared to contain “pretty stark time limits.”

“If you are asking us not to view the five-year time limit as binding, what exactly is the speed-up?” Cuellar asked.

Justice Goodwin Liu also seemed doubtful of the measure’s validity. If the deadlines are not true mandates, how is the court to know what compliance means, he asked.

“We are talking about systemic change” if the initiative is enforced, he said.

Justice Kathryn Mickle Werdegar, a moderate Republican appointee who has joined the liberals at times, could be the swing vote on the seven-justice court.


She was the first to raise the point that there appeared to be no consequence for the court if the deadlines were missed. So the time mandates were merely “aspirational, directory, hopeful?” she asked.

The court has a backlog of more than 300 death penalty appeals ready to be heard and decided. Legal analysts have said the deadlines would force the court to decide death penalty cases almost exclusively for the next several years if the court upholds them.

Liu asked Jose A. Zelidon-Zepeda, defending the measure for the state attorney general, whether the deadlines were binding.

“Yes and no,” he said.

Cuellar told him to clarify his answer. Zelidon-Zepeda said the time limits were binding but there was no consequence for failing to meet them.

“The initiative tries to speed up the process,” he said.

Kent S. Scheidegger, arguing for the proponents of the measure, told the court it could strike down the provision establishing the deadlines and still keep the rest of the measure.

Chief Justice Tani Cantil-Sakauye and Justice Ming W. Chin removed themselves from the case because the lawsuit named the Judicial Council as a defendant.


Both serve on the council, a policymaking body for the court system, which would have to make new rules to implement Proposition 66.

Two court of appeals judges took their place: Santa Ana-based Justice Raymond J. Ikola, an appointee of former Gov. Gray Davis, and Sacramento-based Justice Andrea L. Hoch, an appointee of former Gov. Arnold Schwarzenegger.

The few questions the two asked indicated possible support for the measure.

“Who knows that a five-year time limit can’t be made until we try it?” Ikola asked.

Justice Carol A. Corrigan, a former prosecutor and one of the court’s more conservative members, also seemed inclined to rule in favor of the measure.

When a lawyer for the challenger argued that voters were promised the courts would meet the new deadlines, Corrigan appeared irritated.

Did that mean it would be impossible to “dispose of these capital cases in less than 15 years,” the average time it now takes to resolve death penalty appeals? she asked skeptically.

Kermit Alexander, a former UCLA and NFL football player whose mother, sister and two nephews were murdered in 1984, sponsored Proposition 66. He sat in a center seat in the back row of the courtroom, wearing a black suit.


Alexander noted that one of the killers of his family members has been on death row for nearly 32 years. Alexander wants to see him executed.

If allowed to take effect, the measure could result in the resumption of executions within several months. It passed with 51% of the vote. A competing measure to replace the death penalty with life without parole lost.

Supporters of Proposition 66 argue that major change is necessary to clear up a backlog of hundreds of appeals and begin executing inmates after an 11-year hiatus. California has more than 750 condemned inmates, the largest death row in the nation.

Proponents blame defense lawyers for requesting too many time extensions to file written arguments and the California Supreme Court for granting them.

A decision is due within 90 days.

Twitter: @mauradolan



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1:15 p.m.: This article was updated with additional details from the hearing.

11:30 a.m.: This article was updated with details from the hearing.

This article was originally published at 5 a.m.