O'Melveny Pro Bono Aid Helps Maintain Calif. Execution Ban

By Ryan Boysen | November 12, 2021, 10:30 AM EST ·

Brett Williamson
Bill Trac
By drilling down into the issue of standing, a team with O'Melveny & Myers LLP recently beat back a challenge to Gov. Gavin Newsom's moratorium on executions in the Golden State.

Newsom issued the executive order establishing the moratorium in March 2019, just two months after he took office, citing the billions of taxpayer dollars spent carrying out just 13 executions since the 1970s, and the fact that the death penalty is disproportionately applied to minorities, the poor and the mentally ill.

Republican activist and talk radio host James Lacy filed a lawsuit challenging the moratorium in February 2021, but by sidestepping Lacy's highly technical arguments and focusing on whether he had standing to bring the suit in the first place, an O'Melveny team working pro bono was able to shut it down just a few months later.

"As a litigator the first thing you always look for is 'Is there going to be a more simple, direct threshold issue that a judge can latch onto, without needing to delve into the substance of the arguments at hand?'" said O'Melveny partner Brett Williamson. "We thought there was a real problem with standing here, so not knowing which judge was going to hear the case, we decided to lead with that."

Sacramento County Superior Court Judge Shama Mesiwala stated at the close of oral argument in August she intended to rule that Lacy did indeed lack standing, but she didn't issue a formal order until late October.

Lacy told Law360 Pulse that while he and his attorney were disappointed by that outcome, they won't appeal so as to avoid getting "bogged down on a procedural issue." But Lacy said he does plan to file a new suit sometime next year, possibly with the widow of a murdered police officer as a plaintiff. 

Lacy said he paid his attorney roughly $25,000 for all of his work on the case, and said the total value of O'Melveny's work comes to about $325,000. "So we were David v. Goliath," he said. 

Nonetheless, Lacy said his own polling indicates a majority of Californians still support the death penalty, and said he intends to remain active on the issue. 

Williamson and his team at O'Melveny have taken on death penalty-related pro bono cases in the past, he said, and the racial reckoning that began in the summer of 2020 with the police murder of George Floyd made the issue that much more salient.

O'Melveny's managing counsel for pro bono, David A. Lash, is friends with Kelli Evans, who was one of Newsom's legal advisers until he appointed her to a state judgeship over the summer. When Lacy filed his suit, Evans was still in the Newsom administration, and she told Lash about the case, who then pitched it to Williamson.

Williamson said taking it on pro bono made sense for several reasons.

"We felt this particular engagement was important not just because of the interest some of us already had in the death penalty in general, but especially because Gov. Newsom had stated that the moratorium was expressly premised on what I think is now universally recognized as the primary problem with the death penalty, namely that it is unequally applied to the poor, people of color, and the mentally ill," Williamson said.

"So we felt at bottom it's really an equal justice issue, and that's something that's taken on even greater urgency given the events of the past few years," he said.

Newsom's moratorium was structured as a blanket reprieve for all death row inmates and issued via executive order.

Lacy's suit boiled down to two arguments. First, that Newsom had exceeded his powers under the California Constitution, because there are laws on the books that — depending on how one reads them — give the Legislature some control over the governor's exercise of that reprieve power. Lacy claimed Newsom's order violated the separation of powers arrangement spelled out in the state constitution.

Second, Lacy argued that California's secretary of corrections and rehabilitation, Kathleen Allison, had acted improperly in carrying out another directive in the executive order to dismantle the death chamber previously used to execute California inmates at San Quentin prison.

Lacy cited state laws that require the Department of Corrections and Rehabilitation to maintain the ability to carry out the death sentence.

Williamson called both arguments "highly technical" and said that while he and his team were ready with legal theories and citations rebutting both arguments, they figured it was better to not have to wade into the nitty-gritty in the first place.

The sides agreed that there were no factual disputes at issue in the case, and then filed dueling motions for summary judgment, skipping the often long discovery phase of a lawsuit entirely.

The O'Melveny team argued that Lacy was clearly in violation of California's strict standing rules, which require someone to be directly affected by an action or a situation in order for them to file a suit seeking to change it.

Lacy didn't dispute that but said an exception that sometimes allows California residents to sidestep those standing requirements when the public interest is concerned should apply to him.

Williamson and his team countered that the exception only applies in very specific situations, like if a public official is refusing to issue a marriage license, and Lacy's case didn't thread that needle.

Judge Mesiwala ultimately agreed and decided the case entirely on the issue of standing.

Lacy is represented by Chad D. Morgan.

Newsom and Allison are represented by Brett Williamson, Bill Trac, Meaghan VerGow, Susannah Howard, James Yi Li and Lauren Kenney-Hanzich of O'Melveny & Myers LLP.

The case is James V. Lacy v. Gavin Newsom et al., case number 34-2021-00293349-CU-MC-GDS, in the Superior Court of the State of California, County of Sacramento.

--Editing by Brian Baresch and Alyssa Miller.

Update: This article has been updated with comment from Lacy. 

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