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Court of Appeal, First District, Division 2, California.

Thomas M. THOMPSON et al., Plaintiffs and Respondents, v. DEPARTMENT OF CORRECTIONS et al., Defendants and Appellants.

No. A079924.

Decided: May 22, 1998

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Peter J. Siggins, Senior Assistant Attorney General, Morris Lenk, Supervising Deputy Attorney General, Susan Duncan Lee, Deputy Attorney General, for Defendants and Appellants. Jordan Eth, San Francisco, John M. Moynihan, Johanna W. Roberts, Jill Fairbrother, Morrison & Foerster, San Francisco, for Plaintiffs and Respondents.


This is an appeal from a preliminary injunction imposing various requirements on the California Department of Corrections (the Department) regarding a condemned prisoner's access to his chosen spiritual advisor on the evening before his execution.   Appellants, the Department, the Director of the Department and the Warden of San Quentin prison, contend the injunction must be modified to conform with established Department procedures and with an order issued by the California Supreme Court in a prior action by a condemned San Quentin prisoner.   We hold that our Supreme Court has exclusive appellate jurisdiction to resolve this issue pursuant to article VI, section 11, of the California Constitution and, therefore, dismiss this appeal.


Thomas M. Thompson (Thompson) is a California state prisoner whose conviction and sentence of death have been affirmed by the California Supreme Court.   (People v. Thompson (1988) 45 Cal.3d 86, 246 Cal.Rptr. 245, 753 P.2d 37.)   Margaret Harrell is an ordained minister of the United Church of Christ and is Thompson's spiritual advisor and guide.   She is also a paralegal employed by one of the attorneys or law firms who has represented Thompson.

Thompson's execution was scheduled for August 5, 1997.   During the month prior to that date, Thompson's counsel made various requests of the Attorney General's office and the Department about the nature and length of contact that Thompson could have with Harrell on the evening before his execution.   The Attorney General's office denied all of Thompson's requests.

On July 28, 1997, Thompson and Harrell filed a complaint for declaratory and injunctive relief against appellants alleging, inter alia, that the restrictions appellants intended to impose on Thompson and Harrell would violate their constitutional rights to free exercise of religion and would constitute cruel and unusual punishment.   The complaint was accompanied by an application for a temporary restraining order and a preliminary injunction which sought to require defendants to allow Thompson to have access to Harrell “up to the time of his execution,” and to prohibit “any unreasonable restrictions on Reverend Harrell on the day of the execution.”

Respondents asked the superior court to take judicial notice of certain orders filed in Williams v. Department of Corrections (Super.Ct. Marin County, No. 167264) and Department of Corrections v. Superior Court (Supreme Ct., No. S053348) (Williams ).   In Williams, Harrell and condemned San Quentin prisoner Keith Williams filed an action seeking an order permitting Harrell to stay with Williams until the time of his execution.   The Department argued that Williams's chosen spiritual advisor should be removed from San Quentin at least six hours before the execution.   The same superior court judge who issued the preliminary injunction in this case ordered that Harrell be permitted to stay with Williams “up to the time he enters the execution chamber.”   The Supreme Court modified the superior court's order, stating:  “Petitioner Calderon, Warden of San Quentin Prison, is ordered to permit real party in interest Margaret Harrell to remain with real party in interest Williams only until 11:15 p.m. on May 2, 1996, or until final preparations for removal of Williams from the area of the holding cell to the execution chamber are ready to begin, whichever is later.” (Williams, Supreme Ct. Mins., May 2, 1996.)

The superior court issued a temporary restraining order in the present case on July 28, 1997.   A hearing on the motion for a preliminary injunction was held on July 31, 1997.   At that hearing, the court ruled that the plaintiffs' motion for a preliminary injunction was “well founded” and that defendants “should not and cannot restrict and deny Thomas M. Thompson from the presence of his chosen spiritual advisor.”   The court granted most of the plaintiffs' specific requests regarding the challenged restrictions.

On August 3, 1997, two days before the scheduled execution, the United States Court of Appeals for the Ninth Circuit reversed Thompson's death sentence.   (Thompson v. Calderon (1997) 120 F.3d 1045.)   The United States Supreme Court granted the Attorney General's petition for certiorari on August 4, 1997.  (Calderon v. Thompson (1997) 521 U.S. 1136, 118 S.Ct. 14, 138 L.Ed.2d 1037, order amended 521 U.S. 1140, 118 S.Ct. 16, 138 L.Ed.2d 1048.)   That same day, the superior court issued its written order in this case granting in part and denying in part Thompson's motion for a preliminary injunction (the August 4 order).   The August 4 order, among other things, enjoined appellants from “preventing Reverend Margaret Harrell to remain with Mr. Thompson up to and until the later of:  (1) 11:15 p.m. on the night of the execution or (2) the time of final preparations as described at subsection (d)(1)(2)(3) on page 36 of the San Quentin Institutional Procedure No. 770 ․ namely, ‘The condemned inmate remains in the cell, accompanied by the spiritual advisor, until signaled by the Warden that the appointed time has arrived.’ ” 1

On August 4, 1997, appellants filed a petition for writ of mandate and prohibition and request for immediate stay of the preliminary injunction in the California Supreme Court.   That same day, the petition and request were “dismissed as moot” by the Supreme Court.   Appellants filed their notice of appeal in this court on August 25, 1997.

On April 29, 1998, the United States Supreme Court held that the Ninth Circuit abused its discretion by reversing Thompson's conviction and sentence and remanded his federal habeas corpus case with directions to reinstate the Ninth Circuit's prior mandate denying habeas corpus relief to Thompson.  (Calderon v. Thompson (1998) 523 U.S. 538, 118 S.Ct. 1489, 140 L.Ed.2d 728.)


Appellants challenge only that portion of the trial court's preliminary injunction which permits Harrell to stay with Thompson until 11:15 p.m. on the evening before the execution or until “the time of final preparations,” whichever is later.   Specifically, appellants contend the trial court erroneously defined “the time of final preparations” as the point at which Thompson is taken into the execution chamber.   The parties both assume that the Supreme Court's order in the Williams case is precedent and that the superior court was required to adopt it in the present case.   The parties disagree about how to interpret the Williams order.2  In our view, we are without jurisdiction to resolve this disagreement.

Our conclusion is compelled by article VI, section 11, of the California Constitution (hereafter article VI, section 11), which states, in pertinent part:  “The Supreme Court has appellate jurisdiction when judgment of death has been pronounced.”   Judgment of death was pronounced against Thompson in 1983 or 1984.  (Calderon v. Thompson, supra, 523 U.S. at p. ----, 118 S.Ct. at p. 1495.)   At that time, the Supreme Court acquired exclusive appellate jurisdiction to decide if and how that death judgment was to be effectuated.   The issue presented in this appeal, a challenge to the Department's plan for administering the judgment of death pronounced against Thompson, falls within the Supreme Court's exclusive appellate jurisdiction.

Appellants contend the Supreme Court's exclusive appellate jurisdiction extends only to direct challenges to the judgment or sentence of death.   They concede there is no authority directly supportive of this restrictive interpretation of article VI, section 11.   Instead, appellants contend that other courts of appeal have exercised jurisdiction to resolve “disputes that are similar in nature” to the present case.   But in all but one of the cases appellants cite, when the respective court of appeal issued its decision judgment of death had not been pronounced.  (See People v. Superior Court (Williams ) (1992) 8 Cal.App.4th 688, 10 Cal.Rptr.2d 873 [prosecutor could exercise right to disqualify trial judge in capital case for any reason];  People v. Superior Court (Bridgette ) (1987) 189 Cal.App.3d 1649, 235 Cal.Rptr. 113 [trial court exceeded jurisdiction by precluding prosecutor from seeking death penalty in multiple murder case];  People v. Buckley (1986) 185 Cal.App.3d 512, 228 Cal.Rptr. 329 [reversing trial court's dismissal of information charging defendant with special circumstances murder].)   Thus, whether or not these cases are similar in some way, they are irrelevant because they do not arguably implicate article VI, section 11.

The only case appellants cite which involved an issue that arose after judgment of death was pronounced is People v. Superior Court (Gordon ) (1990) 226 Cal.App.3d 901, 277 Cal.Rptr. 321 (Gordon ).  Gordon is not relevant for two important reasons.   First, that case does not discuss or even refer to article VI, section 11, and thus does not assist us in resolving the jurisdictional issue we face.   Second, Gordon involved a purely procedural question regarding the trial court's statutory duty (under Pen.Code, § 1193) to set a timely scheduling hearing after the Supreme Court affirms a judgment of death and issues its remittitur.   The Gordon court could and did answer that question without having to address any issue relating to the propriety of the judgment of death or the method by which that judgment would be effectuated.   By contrast, we cannot address the sole issue presented by this appeal without invading territory that falls exclusively within the Supreme Court's appellate jurisdiction, i.e., administration of the death penalty in a particular case in which judgment of death has been pronounced.

Our lack of jurisdiction becomes undeniably clear when we consider that resolving the present dispute requires an interpretation of perceived ambiguities in the Williams order, an unpublished decision issued by the Supreme Court in the exercise of its original appellate jurisdiction.   We cannot do this without encroaching on the Supreme Court's exclusive domain.   Further, for us to assume the role of interpreter of Supreme Court orders involving the implementation of the death penalty could well result in intolerably inconsistent interpretations among the five divisions of this court.   These inconsistencies would inevitably lead to further appeals and consequent delays.   We cannot accept jurisdiction to interpret the Williams order and resolve the present appeal without undermining the very goals of consistency and expediency that article VI, section 11, seeks to ensure by granting the Supreme Court exclusive appellate jurisdiction once judgment of death has been pronounced.

Although we have found no authority discussing the relevant provision of article VI, section 11, the Supreme Court has recognized that “ ‘[c]apital cases are different.’   They are exclusively within our appellate jurisdiction.”  (In re Carpenter (1995) 9 Cal.4th 634, 646, 38 Cal.Rptr.2d 665, 889 P.2d 985, citing Cal. Const., art.   VI, § 11.)   The reason for this different treatment is because of the “extreme nature of the penalty.”   (Powers v. City of Richmond (1995) 10 Cal.4th 85, 94, 40 Cal.Rptr.2d 839, 893 P.2d 1160.)   Since the “extreme nature of the penalty” justifies, if not compels, the special jurisdictional rule, common sense dictates that the scope of that jurisdiction must extend to a condemned prisoner's challenge to the implementation of the penalty.3

Respondents have acknowledged the dearth of relevant authority and candidly admitted, during oral argument, that sound logic supports interpreting article VI, section 11, as granting the Supreme Court exclusive appellate jurisdiction to resolve the issue presented in this case.   Appellants, on the other hand, contend that extending the scope of the Supreme Court's exclusive appellate jurisdiction beyond direct appeals from the judgment and sentence of death will open the floodgates, so to speak, and force that court to exercise appellate jurisdiction over any matter involving a condemned prisoner.

We are not opening the floodgates;  we do not purport to set forth a comprehensive guideline or rule regarding the scope of the Supreme Court's jurisdiction under article VI, section 11.   Rather, we simply hold that the scope of that jurisdiction necessarily extends to a challenge by a condemned person to the procedure for effectuating the judgment of death which has been pronounced against him or her particularly when, as here, the challenged procedure is the subject of a prior arguably ambiguous Supreme Court order addressing that very issue.


The appeal is dismissed.


1.   The August 4 order also enjoined appellants from (1) preventing Harrell from taking her prayer book, bible and communion pyx with her into the holding cell area, (2) preventing Harrell from using the rest room during the duration of her visit with Thompson, (3) conducting additional unclothed body searches of Harrell subsequent to her using the restroom, (4) using male prison staff to search Harrell, and (5) preventing Harrell from reasonably requesting and receiving drinking water.   Appellants are not appealing from any of these orders.   The court denied Thompson's and Harrell's requests that Harrell be permitted to have confidential visits with Thompson in the Plexiglas booth where the execution would occur and that she be granted telephone access while visiting with Thompson.   It also enjoined Harrell from disclosing the identity of any member of the execution team.

2.   Appellants contend that “final preparations for removal ․ from the area of the holding cell to the execution chamber are ready to begin” when the Warden and physicians arrive in the holding cell approximately 45 minutes prior to the scheduled time for execution.   Respondents maintain that final preparations begin when the Warden signals that the appointed time has arrived, i.e., when the prisoner is ready to be taken from the holding cell into the execution chamber.

3.   Technically, this challenge is by Ms. Harrell as well.   However, neither party has argued that Ms. Harrell's role as a nominal party in this action has any bearing on the issue of our appellate jurisdiction.

HAERLE, Acting Presiding Justice.

LAMBDEN and RUVOLO, JJ., concur.

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