No. 14A82

IN THE SUPREME COURT OF THE UNITED STATES

Charles L. Ryan, Director of the Arizona Department of Correction, et al., Petitioner,

vs.

Joseph Rudolph Wood III, Respondent.

OPPOSITION TO APPLICATION TO VACATE STAY OF EXECUTION

EXECUTION SCHEDULED FOR JULY 23, 2014, 10 A.M. (MST) / 1:00 P.M. (EST)

JON M. SANDS Federal Public Defender District of Arizona Dale A. Baich

Counsel of Record Robin C. Konrad 850 West Adams Street, Suite 201 Phoenix, Arizona 85007 (602) 382-2816 voice (602) 889-3960 facsimile dale_baich@fd.org robin_konrad@fd.org Attorneys for Respondent Joseph Rudolph Wood III

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TABLE OF CONTENTS

Table of Contents ............................................................................................................ i

Table of Authorities ........................................................................................................................ii

Introduction ................................................................................................................... 1

I. Mr. Wood, as a member of the public, has an individual First

Amendment right of access, which the Court of Appeals appropriately recognized in issuing its conditional injunction. ......................................................3

II. The limited holding of the Court of Appeals does not create a First

Amendment right of access to “any” government information. ............................7

III. The Ninth Circuit applied the “complementary considerations” from Press-Enterprise II to determine that access to documents that are inextricably intertwined with historically open execution proceedings directly contributes to the constitutionally protected, informed discussion of governmental affairs. ...........................................................................13

IV. The Court of Appeals applied the correct preliminary-injunction

standard, which is consistent with this Court’s precedent. .................................17 Conclusion .................................................................................................................... 19

Certificate of Service .................................................................................................................... 20

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TABLE OF AUTHORITIES

Associated Press v. Otter, 682 F.3d 821 (9th Cir. 2012) ...................................................18

Cal. First Amend. Coal. v. Woodford, 299 F.3d 868 (9th Cir. 2002) ............................9, 11

Elrod v. Burns, 427 U.S. 347 (1976) .................................................................................18

Globe Newspaper Co. v. Super. Ct. for Norfolk Cnty., 457 U.S. 596 (1982) ..12, 13, 14, 15

Hill v. McDonough, 547 U.S. 573 (2006) ..........................................................................17

Lopez v. Brewer, 680 F.3d 1068 (9th Cir. 2012) ...............................................................17

New York Civil Liberties Union v. New York City Transit Authority, 684 F.3d 286

(2d Cir. 2012) ...............................................................................................................16

New York Times Co. v. Sullivan, 376 U.S. 254 (1964) ......................................................17

Pell v. Procunier, 417 U.S. 817 (1974) .............................................................................12

Planned Parenthood of Greater Texas Surgical Health Services v. Abbott, 134 S. Ct. 506 (2013) (citation omitted) ..................................................................................6

Press-Enterprise Co. v. Super. Ct., 478 U.S. 1 (1986) ............................................7, 13, 14

Richmond Newspapers, Inc. v. Virginia, 488 U.S. 555 (1980) .............................14

Russian Media Group, LLC v. Cable America, Inc., 598 F.3d 302 (7th Cir. 2010) ............6

The Monrosa v. Carbon Black Export, Inc., 359 U.S. 180 (1959) ....................................12

Travelers Casualty and Sur. Co. of America v. Pacific Gas and Electric Co., 549

U.S. 443 (2007) ..............................................................................................................4

Wellons v. Commissioner, Georgia Department of Corrections, 2014 WL 2748316 (11th Cir. June 17, 2014) ..............................................................................11

Winter v. Natural Resource Defense Council, Inc., 555 U.S. 7 (2008) .............................18

Wood v. Milyard, 132 S. Ct. 1826 (2012) ............................................................................3

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Introduction

Without invoking this Court’s jurisdiction, citing any authority upon which

they rely, or filing a petition for writ of certiorari, Petitioners simply ask this Court

to take the extraordinary measure of vacating the conditional injunction entered by

the Ninth Circuit Court of Appeals. (See Application to Vacate Stay of Execution,

filed July 21, 2014) (hereinafter “Application”).

The decision does not prevent Petitioners from carrying out Mr. Wood’s

execution. The Court of Appeals granted a conditional injunction ordering

Petitioners to provide Mr. Wood with very limited information that is inextricably

intertwined with the State’s execution proceeding. (App. A at 28.)1 As that court

explained, “[o]nce he has received that information, the injunction shall be

discharged without more and the execution may proceed.” (App. A at 28.) Rather

than comply with the Court of Appeals’ order, Petitioners have asked this Court to

vacate a stay of execution. This request is improper; therefore, this Court should

not vacate the lower court’s intermediate discretionary order.

Even if Petitioners’ request were proper, the Court should not vacate the

conditional injunction. In an attempt to get this Court to take action, Petitioners

rewrite Mr. Wood’s argument presented below and alter the issue decided by the

Court of Appeals. The issue presented throughout these proceedings was Mr.

1 All references to appendices refer to appendices attached to the Application to Vacate Stay of Execution.

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Wood’s individual First Amendment right of access to information specific to his

scheduled execution—not the generalized public’s First Amendment right. His

argument is, and continues to be, that he, as a member of the public, has an

individual right of access, and that he was entitled to enforce this right before he is

executed. This was the limited question before the Court of Appeals. Thus,

contrary to Petitioners’ newly crafted assertion, the injunction, which requires

Petitioners to comply with Mr. Wood’s First Amendment rights before carrying out

his execution, is a remedy specific to Mr. Wood.

Petitioners’ other arguments are likewise unavailing. Although Petitioners

ask this Court to believe that the Court of Appeals took a drastic measure that was

inconsistent with this Court’s precedent and created a new right of access, it did

not. Consistent with the preliminary-injunction standard of review, the Court of

Appeals did not “resolve the merits” of the underlying claim. (App. A at 28.)

Instead, the court considered the four factors necessary when determining whether

a preliminary injunction should issue, and found that all factors were met. (App. A

at 28.) There was no error in applying the standard for a preliminary injunction.

Likewise, there was no error in reviewing the strength of Mr. Wood’s First

Amendment claim—that review was required. The court appropriately and

properly applied this Court’s and its own precedent to the facts of this case. For

these reasons, the conditional injunction should remain in place.

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I. Mr. Wood, as a member of the public, has an individual First Amendment right of access, which the Court of Appeals appropriately recognized in issuing its conditional injunction.

1. Petitioners seek to vacate the Court of Appeals’ conditional injunction,

claiming that Mr. Wood has brought a claim asserting a right of the general public.

But Mr. Wood has not and does not assert a right of the general public. Rather, Mr.

Wood has repeatedly urged that, as a member of the public, he has an individual

First Amendment right of access to the information he seeks, and an individual

right to participate in discussions about governmental proceedings.2 Petitioners

cannot rewrite Mr. Wood’s claim and present a new argument in their application to

this Court simply because they are dissatisfied with the ruling from the Court of

Appeals. See generally Wood v. Milyard, 132 S. Ct. 1826, 1834 (2012) (noting that

“appellate courts ordinarily abstain from entertaining issues that have not been

2 See Reply Br., Ninth Cir. ECF No. 21-2 at 26, filed July 16, 2014 (explaining that “[i]t is against th[e] backdrop of the gray-market pharmaceutical industry, and prior unlawful behavior and misrepresentations by [Petitioners], that Mr. Wood asks for information that will allow him the right as an ‘individual citizen’ to ‘effectively participate in and contribute to our republican system of self-government’”); Opening Br., Ninth Cir. ECF No. 10-1 at 50, filed July 14, 2014, (noting that “Mr. Wood has consistently asserted that he is an individual citizen with a First Amendment right of access to governmental proceedings and that, as a prisoner, he retains First Amendment rights absent procedures to deprive him of those rights, which has not occurred here”) (citations and internal quotation marks omitted); Emergency Mot. for Stay of Execution, Ninth Cir. ECF No. 12 at 7, filed July 14, 2014 (noting that a stay of execution may be required to “afford[] him his ability to ‘effectively participate in and contribute to our republican system of self-government’”) (citation omitted); Mot. for Prelim. Inj. or TRO, Dist. Ct. ECF No. 11 at 11, filed July 2, 2014 (noting that “Mr. Wood is an ‘individual citizen’ with a First Amendment right of access to governmental proceedings”).

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raised and preserved in the court of first instance”); Travelers Cas. and Sur. Co. of

America v. Pacific Gas and Elec. Co., 549 U.S. 443, 455 (2007) (declining to review

arguments that were not raised below and where “none of the lower courts had

occasion to address them”).

Nor can Petitioners ignore the plain language from the Court of Appeals’

decision, which noted that Mr. Wood was suing “to enforce a public First

Amendment right . . . . as [an] individual citizen[ ].” (App. A at 9, n.1.) But they do.

And it is only by ignoring this fundamental basis underlying Mr. Wood’s claim for

relief and rewriting the issue that Petitioners are able to make their argument that

enjoining his execution is somehow improper.

Petitioners also assert that Mr. Wood is “trying to obtain details about his

execution presumably so that he can challenge the execution,” and is therefore

making an “end run around” the appropriate standard under the Eighth and

Fourteenth Amendments. (Appl. at 8.) Once again, Petitioners’ argument is not

based on Mr. Wood’s claim, on facts in the record, or on findings by the Court of

Appeals or the district court; it is based on pure speculation raised for the first time

in their plea to this Court. This Court should not vacate a well-reasoned decision by

the Court of Appeals based on Petitioners’ accusation that Mr. Wood is attempting

to vindicate a right that he has not asserted.

2. Additionally, Petitioners suggest that the limited remedy narrowly

tailored to the facts of the instant case “raises questions regarding the limits of a

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federal court’s equitable power to extend to constitutional claims unrelated to an

execution.” (Appl. at 7.) They suggest that prisoners can now seek a stay of

execution to litigate a claim related to prison conditions filed one week before an

execution. (Appl. at 7.) As Petitioners note, this result would be absurd, and Mr.

Wood agrees—both because the hypothetical has no relation to the execution itself,

and because it presumes that courts would no longer need to analyze the factors for

injunctive relief.

In this case, Mr. Wood is seeking information specifically related to his

execution; he is not seeking to vindicate a general constitutional right unrelated to

the imminent execution. There would be no reason to stay an execution in the

example provided by Petitioners. But contrary to Petitioners’ assertion, the remedy

in this case does, in fact, bear a relationship to the type of claim Mr. Wood asserted.

(Appl. at 6.) Here, the First Amendment right of access is a right that directly

involves the execution. As such, the Court of Appeals properly tailored the narrow

remedy in this case to ensure that Mr. Wood’s rights would not be violated and to

allow Petitioners to carry out his execution consistent with his First Amendment

rights surrounding that execution.

3. The Court of Appeals entered a preliminary injunction and

simultaneously stayed Mr. Wood’s execution in order to ensure that the injunction

would not immediately become moot. (App. A at 24.) That is, far from creating a

“novel remedy” (Appl. at 7), the court exercised its equitable powers to issue an

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appropriate remedy to address the narrow issue that Mr. Wood raised. These

actions are within a court’s equitable powers, and are particularly appropriate

when, as here, there is a serious question as to the constitutionality of Petitioners’

actions in depriving Mr. Wood of his First Amendment right of access. See, e.g.,

Russian Media Group, LLC v. Cable America, Inc., 598 F.3d 302, 307 (7th Cir. 2010)

(explaining that a court “has the discretion to issue a broad injunction in cases

where ‘a proclivity for unlawful conduct has been shown’”) (citing McComb v.

Jacksonville Paper Co., 336 U.S. 187, 192 (1949)).

Petitioners suggest that the conditional injunction, which has the effect of

staying Mr. Wood’s execution only if Petitioners do not comply with the order, is

improper because Mr. Wood does not challenge the lawfulness of the execution

itself. (Appl. at 6.) That is not accurate. A “court may even enjoin certain

otherwise lawful conduct when the defendant’s conduct has demonstrated that

prohibiting only unlawful conduct would not effectively protect the plaintiff’s rights

against future encroachment.” Russian Media Group, 598 F.3d at 307 (collecting

cases). Thus, the Court of Appeals’ actions are particularly appropriate here: if the

court were to prohibit only the unconstitutional conduct (violation of the First

Amendment), then Mr. Wood’s current and future interests would be unprotected.

Because the conditional injunction issued by the Court of Appeals is

specifically tailored to Mr. Wood, this Court should not vacate it. See Planned

Parenthood of Greater Texas Surgical Health Services v. Abbott, 134 S. Ct.

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506 (2013) (Scalia, J., concurring in denial of application to vacate stay) (noting that

“great deference” is owed to the Court of Appeals) (citation omitted).

II. The limited holding of the Court of Appeals does not create a First Amendment right of access to “any” government information.

1. Mr. Wood sought a First Amendment right to access historically open

information, and the Court of Appeals considered the “complementary

considerations” that this Court outlined in Press-Enterprise Co. v. Super. Ct., 478

U.S. 1, 8 (1986) (Press-Enterprise II). (App. A at 14.) Consistent with this Court’s

precedent, see Press Enterprise II, 478 U.S. at 8, the Court of Appeals determined

that Mr. Wood had presented a serious question whether access to the specific

execution information he sought was “related to, and arguably necessary for a full

understanding of, a proceeding in which [that court] ha[s] already granted a

qualified right of access.” (App. A 29-1 at 13.) The Court of Appeals further

recognized that the right to access information associated with public proceedings is

“an important component of the Press-Enterprise II First Amendment right of

access.” (App. A at 10-13.) Ultimately, the court considered a narrow factual

question based on a qualified right of access to information regarding historically

open proceedings, and limited its holding “to the information Wood seeks.” (App. A

at 7.)

2. Despite this, Petitioners assert that the Court of Appeals “erroneously

create[d] an unprecedented and newfound First Amendment right to access any

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government held information that is ‘inextricably intertwined’ with a public

proceeding.” (Appl. at 10.) Similarly, Petitioners argue the Court of Appeals’

decision expanded the right of access such that it would “swallow the default rule,

that there is no First Amendment right to information in the government’s control.”

(Appl. at 15) (quotation marks omitted; citation omitted). Neither proposition is

true.

Petitioners try to grab this Court’s attention by vastly overstating the Court

of Appeals’ holding. As the court carefully explained, “The issue is not whether

Press-Enterprise II grants a generalized right of access to executive branch

documents. It does not.” (App. A at 12) (emphasis added). The court limited its

decision to the specific information Mr. Wood sought, which was related to the

execution proceedings. The court carefully applied Press-Enterprise II and did not

stray from this Court’s or its own precedent. (See Section III, infra.)

The Court of Appeals’ decision does not “render superfluous” Freedom of

Information (FOI) requests. (Appl. at 15.) Mr. Wood requested information related

to historically open government proceedings; he did not request information covered

by FOI statutes.3 FOI laws are designed to provide access to information related to

3 Whether governmental information is also available via a FOI request is not relevant to a First Amendment analysis. The government is free to make constitutionally protected information available through administrative processes. What it cannot do is hide constitutionally protected information behind the label of FOI statutes, then remove that information from FOI access and claim that because the information was available through FOI requests, the information has no

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government proceedings that have not historically been open to the public. That is,

FOI laws open more documents to public review than those available through the

First Amendment.4 Because the FOI laws address non-constitutionally-protected

information, the government still is free to exclude categories of information from

release. But that is not the case for documents related to proceedings to which the

First Amendment right of access has attached.

Moreover, reliance on constitutional protections does not result in trying to

use “the First Amendment as a discovery tool or FOIA request.” (Appl. at 14.)

Rather, Mr. Wood has relied on the fundamental constitutional protections that the

Court of Appeals has found attaches to execution proceedings. Cal. First Amend.

Coal. v. Woodford, 299 F.3d 868, 877 (9th Cir. 2002) (holding that executions have

been historically open proceedings and that public access to executions serves

constitutional protection. 4 Congress passed the Administrative Procedure Act (5 U.S.C. section 1002) in 1946, and included a “Public Information” section that was “drawn upon the theory that administrative operations and procedures are public property which the general public, rather than a few specialists or lobbyists, is entitled to know or have ready means of knowing with definiteness and assurance.” H. Rep. No. 1497, 89th Congress, 2nd Session, House Committee on Government Operations (May 9, 1966) (S. 1160), Section II, “Background,” subsection “The ‘Public Information’ Section of the Administrative Procedures Act.” (citing H. Rep. No. 752, 79th Cong. 1st sess.). However, Congress found that this section, “though titled ‘Public Information’ and clearly intended for that purpose, has been used as an authority for withholding, rather than disclosing information.” Id. at Section III, “The Need for Legislation.” As a result of these agency abuses, Congress passed the FOI statute to “emphasize that [the Public Information section] of the [APA] is not a withholding statute but a disclosure statute . . . .” S. Rep. No. 813, 89th Congress, 1st Session, Senate Committee on the Judiciary (Oct. 4, 1965) (S. 1160), “What S. 1160 Would Do.”

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functional importance). Based on the controlling circuit law, Mr. Wood asked for

specific information that is “inextricably intertwined” with historically open

proceedings. (App. A at 13-14.) As such, Petitioners’ argument that the right of

access “does not extend to every piece of information potentially related to the

proceeding” (Appl. at 14) has no relevancy here.

The Court of Appeals granted Mr. Wood access to the limited information

that is related specifically to his execution proceedings. Its decision is not open to

ambiguous interpretation—the relevant analysis was and still is the test described

in Press-Enterprise II. Courts will continue to examine whether a particular

government proceeding has been historically open and whether public access would

contribute to the functioning of that proceeding.

4. Petitioners also argue that this Court should vacate the conditional

injunction entered by the Court of Appeals because the court did not “cite[] a single

case finding a First Amendment right of access to the type of information at issue,”

and because the court’s decision “creates a circuit split with an opinion issued a

month ago by the Eleventh Circuit” and is “directly inconsistent with a recent

opinion of the Georgia Supreme Court.” (Appl. at 14.) This argument does not

support Petitioners’ request.

First, the Court of Appeals’ decision is not “unprecedented” simply because

the facts are new. Courts routinely apply principles of law to specific facts before

them; they do not generally address hypothetical factual scenarios. For example, in

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California First Amendment Coalition, the Court of Appeals applied principles of

law established by this Court to the issue before it: “This appeal concerns the

restriction on viewing lethal injection executions imposed on the public and the

press by San Quentin Institutional Procedure 770.” Cal. First Amend. Coal., 299

F.3d at 870. Applying those principles, the Court of Appeals explained that “the

same functional concerns that drove the [Supreme] Court to recognize the public’s

right of access to criminal trial proceedings compel us to hold that the public has a

First Amendment right to view the condemned as he enters the execution chamber .

. . .” Id. at 877. The fact that the Court in California First Amendment Coalition

“sa[id] nothing about information in the government’s possession, but merely the

public’s right to view an execution” (Appl. at 14) is unsurprising; the Court was not

asked to evaluate an access-to-information claim.

Petitioners also rely on Wellons v. Commissioner, Georgia Department of

Corrections, 2014 WL 2748316 (11th Cir. June 17, 2014), and misread the

significance of that case. In denying the claim in Wellons, the court provided no

analysis supporting its conclusion that the First Amendment does not permit the

right of individual access in executions. Id. at *6.

Here, there was a robust discussion of the First Amendment and its

application to the instant circumstances. There may be different results in the only

two circuits that have addressed this issue—both in a preliminary-injunction

posture. If anything, this Court should wait for future cases where there is an

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equally robust discussion of the First Amendment. See, e.g., S. Shapiro, K. Geller,

T. Bishop, E. Hartnett, & D. Himmelfarb, Supreme Court Practice § 4.4(e), p. 249

(10th ed. 2013) (“While this Court decides questions of public importance, it decides

them in the context of meaningful litigation.”) (quoting The Monrosa v. Carbon

Black Export, Inc., 359 U.S. 180, 184 (1959), and describing Supreme Court’s

approach to deciding whether a “true” conflict exists).5

The conclusion reached in Wellons is also inconsistent with this Court’s

precedent. See Pell v. Procunier, 417 U.S. 817, 822 (1974) (recognizing that a

prisoner “retains those First Amendment rights that are not inconsistent with his

status as a prisoner or with the legitimate penological objectives of the corrections

system”);6 Globe Newspaper Co. v. Super. Ct. for Norfolk Cnty., 457 U.S. 596, 604

(1982) (explaining that the purpose of the First Amendment’s right of access is “to

ensure that the individual citizen can effectively participate in and contribute to our

republican system of self-government”) (emphasis added). The Eleventh Circuit’s

cursory conclusion in Wellons provides no reason to vacate the conditional

injunction entered here.

5 Even if this Court determines that the Court of Appeals’ decision here conflicts with the Eleventh Circuit’s decision in Wellons, that is no reason to vacate the Court of Appeals’ stay and allow Mr. Wood’s execution to proceed under a cloak of secrecy. Rather, a circuit split would weigh in favor of the conditional injunction remaining in place in order for this Court to resolve that split on the merits. See Sup. Ct. R. 10(a). 6 This is the position that Mr. Wood has taken since the inception of this case, see supra n.1. Petitioners have not disputed that assertion.

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5. In sum, Petitioners’ conclusion that the Court of Appeals decision “will

have wide-ranging effect on all government agencies and information related to any

policy decisions of the agency,” (Appl. at 15) is overstated, hyperbolic, and untrue.

The court followed its own and this Court’s precedent to reach a narrow holding

related only to the information Mr. Wood sought.

III. The Ninth Circuit applied the “complementary considerations” from Press-Enterprise II to determine that access to documents that are inextricably intertwined with historically open execution proceedings directly contributes to the constitutionally protected, informed discussion of governmental affairs.

1. The First Amendment right of access attaches specifically where (a)

proceedings or records are historically open to the public and (b) public access to the

specific proceedings or records plays a significant positive rule in the functioning of

government. Press-Enterprise II, 478 U.S. at 8 (citing Globe Newspaper Co., 457

U.S. at 604). Moreover, this Court has recognized that some proceedings do not

have a “historical counterpart, but given the importance” of the particular

proceeding, the traditional right of access still applies. Press-Enterprise II, 478 U.S.

at 11 n.3. The Court of Appeals correctly analyzed Press-Enterprise II’s

complementary considerations and held that Mr. Wood met the preliminary

injunction standard. (App. A at 15-24.)

2. Contrary to Petitioners’ assertion, neither Richmond Newspapers, nor

this Court’s jurisprudence following it, requires that a history of openness must be

solely of the government’s own making. (Appl. at 17.) This Court has relied upon

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broad and wide-ranging analyses of historical openness, noting that it is a

“complementary” consideration to the role open access plays in the functioning of

government. Press-Enterprise II, 478 U.S. at 8; Richmond Newspapers, Inc. v.

Virginia, 488 U.S. 555, 565-572 (1980). Nowhere has the Court held that historical

openness turns solely on the government’s choice. Indeed, what has made the

Court’s First Amendment jurisprudence, and the instant action, necessary is the

government’s unwillingness to provide public access to historically open

proceedings.

The Court of Appeals appropriately relied on historical information regarding

executions and the type of information requested here—such as the manufacturer of

ropes or gas chamber, which has been open to the public as part of the execution

proceeding. (App. A at 16-17.) The Court of Appeals also considered the more

recent history of Arizona and other states that have released information about the

drugs used in executions. (App. A at 18.) Moreover, the Court of Appeals

appropriately relied upon historically open information related to the qualification

of the executioner. (App. A at 17.) This is entirely consistent with this Court’s

precedent.

The Court of Appeals also appropriately considered whether information that

Mr. Wood requested plays a significant role in the functioning of execution

proceedings. (App. A at 19-24.) As this Court has held, the “constitutionally

protected ‘discussion of governmental affairs’ [must be] an informed one.” Globe

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Newspaper Co., 457 U.S. at 605 (emphasis added). In granting the conditional

injunction, the Court of Appeals explained that “more information about the drugs

used in lethal injections can help an alert public make better informed decisions

about the changing standards of decency in this country surrounding lethal

injection.” (App. A at 22.)7 Indeed, knowing both information about the drugs to be

used and the qualifications of the individuals performing the executions will allow

the public to discuss whether the State is using safe and reliable drug

manufacturers, and will give the public more confidence that executions will be

administered safely and pursuant to certain standards. (Id.) The Court of Appeal’s

well-reasoned and limited holding ensures that the Mr. Wood, as a member of the

public, will receive this information and be able to participate in the discussion

before the State executes him.

3. Further, Petitioners’ argument here—that disclosure of information

inhibits the State from carrying out executions (Appl. at 19-20)—was rejected by the

Court of Appeals because there is “no evidence in the record to support [that]

claim[.]” (App. A at 23.) In fact, the opposite is true. As the Court of Appeals

noted, “Arizona has continued to effectively administer the death penalty using

7 Chief Judge Kozinski also weighed in on the public debate and discussion of lethal injection as a method of execution. (App. F at 3) (expressing the view that “[t]he [lethal-injection] enterprise is flawed. Using drugs meant for individuals with medical needs to carry out executions is a misguided effort to mask the brutality of executions by making them look serene and peaceful—like something any one of us might experience in our final moments.”).

16

domestically produced lethal injection chemicals. . . .” (App. A at 23.) The First

Amendment right of access cannot be eroded based on Petitioners’ unsupported

speculation that openness would frustrate its ability to carry out an execution. See

generally New York Civil Liberties Union v. New York City Transit Auth., 684 F.3d

286, 303 (2d Cir. 2012) (internal citations omitted) (The Transit Authority “suggests

that the possibility that some respondents would be dissuaded from contesting their

notices of violation in person suffices to outweigh any potential benefits of publicity.

But far from showing that this danger is real, the NYCTA has ‘offered no empirical

support for th[is] claim.’ Like the Sixth Circuit, ‘we do not believe speculation

should form the basis for . . . a . . . restriction of the public’s First Amendment

rights.’”). This is especially so in light of the fact that Arizona has been able to

carry out thirteen executions since October 1, 2010 (i.e., ADC has executed every

prisoner for which the State of Arizona has requested a warrant).8

Moreover, without evidentiary support, Petitioners assert that information

about the “source” of the drugs is “at best, of marginal relevance.” (Appl. at 19.)

But it is not for the government to determine what the public discussion will

8 See Ariz. Dep’t Corrections, Executed since 1992, available at http://www.azcorrections.gov/inmate_datasearch/Minh_NewDeathRow.aspx (last visited July 15, 2014). Jeffrey Landrigan, October 26, 2010; Eric King, March 29, 2011; Donald Beaty, May 25, 2011; Richard Bible, June 30, 2011; Tom West, July 19, 2011; Robert Moorman, Feb. 29, 2012; Robert Towery, March 8, 2012; Tom Kemp, Apr. 25, 2012; Samuel Lopez, June 28, 2012; Daniel Cook, Aug. 8, 2012; Richard Stokley, Dec. 5, 2012; Edward Schad, Oct. 9, 2013; Robert Jones, Oct. 23, 2013.

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determine to be of importance. This nation has “a profound national commitment to

the principle that debate on public issues should be uninhibited, robust, and wide-

open,” New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964) (emphasis added),

even if that debate “include[s] vehement, caustic, and sometimes unpleasantly

sharp attacks on government and public officials.” Id. It is not for the government

to place prior restraints on information based on the government’s (unfounded)

assessment of the value of that information. Any suggestion to the contrary runs

counter to the commitment of uninhibited debate on public issues.

4. This Court should not vacate the conditional injunction because the

Court of Appeals’ decision properly applied this Court’s analysis from Press-

Enterprise II to the specific facts raised.

IV. The Court of Appeals applied the correct preliminary-injunction standard, which is consistent with this Court’s precedent.

1. The Court of Appeals’ decision to issue a conditional injunction is not

in conflict with Hill v. McDonough, 547 U.S. 573 (2006). To the extent that

Petitioners suggest that the “serious questions” test lowers the burden because it is

separate from the “likelihood of success on the merits test,” the Court of Appeals

recently rejected that proposition when an Arizona death-sentenced prisoner made

that exact argument: “To the extent Lopez argues that the ‘serious questions going

to the merits’ consideration is a separate and independent analysis from the court’s

assessment of Lopez’s likelihood of success on the merits, Lopez misunderstands our

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precedent.” Lopez v. Brewer, 680 F.3d 1068, 1073 (9th Cir. 2012) (emphasis added).

Thus, the “serious questions” test is simply a variation of the “likelihood of the

merits” test based on the claim before the Court. And the Court of Appeals here

explained this in its opinion. (App. A. at 7-8.) Contrary to Petitioners’ argument,

the Court of Appeals properly analyzed Mr. Wood’s claim under the preliminary-

injunction standard and under Hill.

2. Moreover, the dissent from the denial of rehearing en banc takes this

case to an extreme beyond its actual holding. The Court of Appeals’ limited decision

in the instant case does not mean that a death-row prisoner will never need to show

a likelihood of success on his claim “because the nature of his sentence inherently

tips the balance of hardship in his favor.” (Appl. at 21) (quoting Callahan, J.,

dissenting, App. G at 4.) Nowhere in the Court of Appeals opinion did it determine

that the nature of the sentence itself was cause for injunctive relief. Rather, it

considered the four factors set forth by this Court in Winter v. Natural Resources

Defense Council, Inc., 555 U.S. 7 (2008), and balanced them accordingly. In fact, in

determining the irreparable harm that Mr. Wood would suffer if injunctive relief

were not granted, the Court of Appeals relied upon this Court’s precedent, noting

that “[t]he loss of First Amendment freedoms, for even minimal periods of time,

unquestionably constitutes irreparably injury.” (App. A. at 24) (citing Associated

Press v. Otter, 682 F.3d 821, 826 (9th Cir. 2012), which cites Elrod v. Burns, 427

U.S. 347, 373, (1976)). Thus, it was not the fact of Mr. Wood’s sentence, but several

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factors combined that allowed the Court of Appeals to properly grant an injunction.

(See App. A at 26) (“Given the small impact the injunction will have on the state,

the importance of First Amendment rights generally, and the critical importance of

providing the public with the information it needs to debate the most severe form of

punishment that exists, we conclude that the balance of equities tips sharply in

Wood’s favor.”).

Conclusion

For the reasons stated, this Court should deny Petitioners’ request to vacate

the conditional injunction that was properly entered for the limited purposes of this

case.

Respectfully submitted: July 22, 2014.

JON M. SANDS Federal Public Defender s/Dale A. Baich Dale A. Baich (Ohio Bar No. 0025070) Robin C. Konrad (Alabama Bar No. 2194-N76K) 850 West Adams Street, Suite 201 Phoenix, Arizona 85007 (602) 382-2816 voice (602) 889-3960 facsimile dale_baich@fd.org robin_konrad@fd.org

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CERTIFICATE OF SERVICE

I hereby certify that on July 22, 2014, I electronically mailed this Opposition

to Application to Vacate Stay of Execution to the U.S. Supreme Court to be lodged

for filing.

Copies of this motion were electronically mailed this date to:

Jeffrey A. Zick John Todd Assistant Attorneys General Chief Counsel Capital Litigation Section Attorneys for Petitioners

s/Chelsea L. Hanson Legal Assistant Capital Habeas Unit