Case 1:12-cv-00255-EJL Document 1 Filed 05/22/12 Page 1 of 19

Charles A. Brown Attorney at Law 324 Main Street P.O. Box 1225 Lewiston, ID 83501 208-746-9947 208-746-5886 (fax) ISB # 2129 CharlesABrown@cableone.net Attorney for Plaintiffs.

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

THE ASSOCIATED PRESS, a New York )

corporation; IDAHO STATESMAN

)

PUBLISHING, LLC, a Delaware limited )

liability company d/b/a The Idaho

)

Statesman; LEE ENTERPRISES,

)

INCORPORATED, a Delaware corporation )

d/b/a The Times-News; THE IDAHO

)

PRESS CLUB, INC., an Idaho corporation; )

PIONEER NEWSPAPERS, INC., a Nevada )

corporation d/b/a Idaho Press-Tribune, )

Idaho State Journal, Standard Journal,

)

Teton Valley News, The News-Examiner, )

The Preston Citizen, and Messenger Index; )

TPC HOLDINGS, INC., an Idaho

)

corporation, d/b/a Lewiston Tribune and )

Moscow-Pullman Daily News; BAR BAR )

INC., an Idaho corporation d/b/a Boise )

Weekly; COWLES PUBLISHING

)

COMPANY, a Washington corporation, )

d/b/a The Spokesman Review; and

)

IDAHOANS FOR OPENNESS IN

)

GOVERNMENT, INC., an Idaho

)

non-profit corporation;

)

)

Plaintiffs,

)

)

Case No. _________________
COMPLAINT FOR DECLARATORY JUDGMENT AND INJUNCTIVE RELIEF

COMPLAINT FOR DECLARATORY JUDGMENT

AND INJUNCTIVE RELIEF

1

Charles A. Brown, Esq. P.O. Box 1225/324 Main St.
Lewiston, Idaho 83501 208-746-9947/208-746-5886 (fax)

Case 1:12-cv-00255-EJL Document 1 Filed 05/22/12 Page 2 of 19

v.

)

)

C.L. (BUTCH) OTTER, in his official

)

capacity as the Governor of the State of )

Idaho; ROBIN SANDY, HOWARD G. )

“J.R.” VAN TASSEL, and JAY L.

)

NIELSEN in their official capacity as the )

Idaho Board of Correction; BRENT D. )

REINKE, in his official capacity as the )

Director of the Idaho Department of

)

Correction; and KEVIN KEMPF in his )

official capacity as Division Chief of

)

Operations of the Idaho Department of )

Correction,

)

)

Defendants.

)

COME NOW the above-named Plaintiffs and for a cause of action against the Defendants, and each of them, allege and complain as follows:
1. This matter, brought pursuant to 42 U.S.C. § 1983, seeks preliminary and permanent injunctive and declaratory relief in response to violations by the above-named Defendants of the First Amendment to the United States Constitution, incorporated and applied to the states by the Fourteenth Amendment. Plaintiffs seek to prohibit the State of Idaho from engaging in unconstitutional procedures currently followed by the Idaho Department of Correction (“IDOC”) which prevent uninhibited viewing of the entirety of the execution of condemned inmates.
2. Under the procedure currently followed by the IDOC, the public, members of the media, and other witnesses are prevented from viewing the preparatory phase of the execution process prior to actual administration of the lethal injection. This preparatory phase spans and includes the prisoner’s initial entry into the execution chamber, placement of restraints on the prisoner to secure the prisoner to the execution table, connection of monitoring equipment (EKG

COMPLAINT FOR DECLARATORY JUDGMENT

AND INJUNCTIVE RELIEF

2

Charles A. Brown, Esq. P.O. Box 1225/324 Main St.
Lewiston, Idaho 83501 208-746-9947/208-746-5886 (fax)

Case 1:12-cv-00255-EJL Document 1 Filed 05/22/12 Page 3 of 19

machine) to the prisoner, and the insertion of catheters and attachment of intravenous ( IV) lines necessary to administer the injection.
This preparatory phase is conducted behind a window covering and/or without witnesses present so that by the time viewing is allowed, witnesses are denied any real opportunity to fairly view the execution process.
3. By prohibiting the viewing of the entirety of the execution process, Defendants have deprived and continue to deprive the Plaintiffs, and those similarly situated, of their rights recognized under the First and Fourteenth Amendments to observe uninhibited the execution of a condemned inmate.
I. - THE PLAINTIFFS 4. Plaintiff THE ASSOCIATED PRESS is a New York corporation with a place of business located in Boise, Ada County, Idaho, and its registered agent and Administrative Correspondent in Idaho is TODD DVORAK, who is a resident of Boise, Ada County, Idaho. 5. Plaintiff IDAHO STATESMAN PUBLISHING, LLC, is a Delaware limited liability company d/b/a The Idaho Statesman with a place of business located in Boise, Ada County, Idaho. 6. Plaintiff LEE ENTERPRISES, INC. is a Delaware corporation d/b/a Times-News with a place of business located in Twin Falls, Twin Falls County, Idaho. 7. Plaintiff THE IDAHO PRESS CLUB, INC., is an Idaho corporation with a place of business located in Boise, Ada County, Idaho. 8. Plaintiff PIONEER NEWSPAPERS, INC., is a Nevada corporation d/b/a Idaho Press-Tribune which is located in Nampa, Canyon County, Idaho; d/b/a Idaho State Journal, which is located in Pocatello, Bannock County, Idaho; d/b/a Standard Journal which is located in

COMPLAINT FOR DECLARATORY JUDGMENT

AND INJUNCTIVE RELIEF

3

Charles A. Brown, Esq. P.O. Box 1225/324 Main St.
Lewiston, Idaho 83501 208-746-9947/208-746-5886 (fax)

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Rexburg, Madison County, Idaho; d/b/a Teton Valley News which is located in Driggs, Teton County, Idaho; d/b/a The News-Examiner which is located in Montpelier, Bear Lake County, Idaho; d/b/a The Preston Citizen which is located in Preston, Franklin County, Idaho; and d/b/a Messenger Index, located in Emmett, Gem County, Idaho.
9. Plaintiff TPC HOLDINGS, INC., is an Idaho corporation, d/b/a Lewiston Tribune and the Moscow-Pullman Daily News, with its principal place of business in Lewiston, Nez Perce County, Idaho.
10. Plaintiff BAR BAR INC., is an Idaho corporation d/b/a Boise Weekly with a principal place of business located in Boise, Ada County, Idaho.
11. Plaintiff COWLES PUBLISHING COMPANY, is a Washington corporation, d/b/a The Spokesman Review with its principal place of business in Spokane, Spokane County, Washington.
12. Plaintiff IDAHOANS FOR OPENNESS IN GOVERNMENT, INC., is an Idaho non-profit corporation with its principal place of business in Boise, Ada County, Idaho.
II. - THE DEFENDANTS 13. Defendant C.L. (BUTCH) OTTER is the Governor of the State of Idaho and is responsible under the Idaho Constitution for seeing that the laws of the State are executed. He is named in his official capacity only. 14. Defendants ROBIN SANDY, HOWARD G. “J.R.” VAN TASSEL, and JAY L. NIELSEN are the individuals who comprise the Idaho Board of Correction. They are named in their official capacity only. 15. Defendant BRENT D. REINKE is the director of the Idaho Department of Correction, which is tasked with establishing, designing and implementation of the IDOC

COMPLAINT FOR DECLARATORY JUDGMENT

AND INJUNCTIVE RELIEF

4

Charles A. Brown, Esq. P.O. Box 1225/324 Main St.
Lewiston, Idaho 83501 208-746-9947/208-746-5886 (fax)

Case 1:12-cv-00255-EJL Document 1 Filed 05/22/12 Page 5 of 19

execution policies and protocol inclusive of witness access. He is named in his official capacity only.
16. Defendant KEVIN KEMPF is the Division Chief of Operations of the Idaho Department of Correction, which is tasked with implementing the IDOC execution policies and protocol. He is named in his official capacity only.
17. All of the acts and omissions set forth in this matter were performed by the Defendants or the Defendants’ employees and agents, within the scope of their employment, and under the color and authority of State law and will act under color of State law in carrying out future executions. They were official acts of the Defendants undertaken directly by policymakers, they were actions caused by the policies, procedures, practices and customs of the State of Idaho, or they were ratified by the Defendants.
III. - JURISDICTION 18. The Plaintiffs bring this action to enjoin imminent violations of the First and Fourteenth Amendments to the United States Constitution. 19. This Court has subject matter jurisdiction over the Plaintiffs’ 42 U.S.C. § 1983 claims under 28 U.S.C. § 1331. It has jurisdiction to grant declaratory and injunctive relief under 28 U.S.C. §§ 2201–2202 and Fed. R. Civ. P. 65. 20. The action is ripe for adjudication. 21. The action qualifies as an exception to the mootness limitation on federal jurisdiction under the “capable of repetition, yet evading review” doctrine. Two prerequisites exist in order to qualify for this exception: (1) the challenged action was too short in duration to be resolved by litigation, and (2) a reasonable expectation that the same complaining party would be subjected to the same action again. Both prerequisites are satisfied.

COMPLAINT FOR DECLARATORY JUDGMENT

AND INJUNCTIVE RELIEF

5

Charles A. Brown, Esq. P.O. Box 1225/324 Main St.
Lewiston, Idaho 83501 208-746-9947/208-746-5886 (fax)

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22. The action represents a genuine and actual controversy between the parties as set forth below.
23. Venue is proper in this Court and District, under 28 U.S.C. § 1391(b)(1) & (2), because the Defendants are subject to personal jurisdiction in this District and because the events and omissions giving rise to this action occurred in this District and will, absent judicial relief, transpire within this judicial district again in the future.
IV. - FACTUAL BACKGROUND 24. A. Execution Protocol
Paul Ezra Rhoades was executed by the State of Idaho on November 18, 2011. Prior to his execution, the director of the IDOC was contacted by members of the media, some of whom are represented above as plaintiffs, to voice the objection that the execution protocol as adopted by the IDOC is flawed and is not compliant with the dictates of a 2002 case issued by the Ninth Circuit, California First Amendment Coalition v. Woodford, 299 F.3d 868, 30 Media L. Rptr. 2345 (9th Cir. 2002) in that it prohibits the public and media witnesses from viewing the entirety of the execution process. Exhibit A is a true and correct copy of that email, which is dated November 15, 2011, and is incorporated herein by reference as though fully set forth. (The exhibits to this Complaint have been redacted as to phone numbers and email addresses.)
A follow-up to that email was made to Mr. Jeff Ray, the IDOC public information officer. Mr. Ray responded on behalf of Director Reinke and the IDOC as follows: “The procedures were developed so that we would preserve the dignity of the offender. After discussing the matter with Director Reinke and legal counsel we have chosen to follow the procedures as they are written.” Exhibit B attached hereto and incorporated herein by reference reflects a true and correct copy of the follow-up email from the media and Mr. Ray’s response on behalf of the IDOC.

COMPLAINT FOR DECLARATORY JUDGMENT

AND INJUNCTIVE RELIEF

6

Charles A. Brown, Esq. P.O. Box 1225/324 Main St.
Lewiston, Idaho 83501 208-746-9947/208-746-5886 (fax)

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On November 16, 2011, a more formal request was made of the IDOC in the form
of a letter, as shown in Exhibit C attached hereto and incorporated herein by reference.
Director Reinke responded in an email dated November 16, 2011, which reads in total as follows:
To: Charles Brown, Attorney at Law charlesabrown@cableone.net
Cc: Rebecca Boone, . . . Todd Dvorak, . . .
From: Brent D. Reinke, Director
Date: November 16, 2011
RE: Request to view
Dear Mr. Brown,
Thank you for your letter regarding your clients’ desire to view all aspects of the November 18 execution of Paul Ezra Rhoades. The changes you have requested at this late hour to IDOC’s execution procedures would have a potentially disruptive effect on the entire process. Among other things, it could compromise the anonymity of members of IDOC’s execution team.
We are aware of the Ninth Circuit Court’s ruling which you cite in your correspondence. The ruling was based on facts unique to California.
In the months to come we shall review every aspect of Friday’s execution. As we do, we shall welcome your clients’ input on how we can improve this process.
Sincerely,
Brent D. Reinke, Director Idaho Department of Correction
See Exhibit D attached hereto.
Exhibit E attached hereto and incorporated herein is a true and correct copy of a
letter dated November 17, 2011, which reads, in part:
My clients have indicated that they do not want to interfere with the Rhoades execution with the understanding that a timely and meaningful review process will proceed.

COMPLAINT FOR DECLARATORY JUDGMENT

AND INJUNCTIVE RELIEF

7

Charles A. Brown, Esq. P.O. Box 1225/324 Main St.
Lewiston, Idaho 83501 208-746-9947/208-746-5886 (fax)

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Could you please give me a time line as to your proposed review process so that future complications and challenges can be avoided. As noted above, Mr. Rhoades was executed on November 18, 2011. On January 24, 2012, representatives of the media met with Director Reinke, Mr. Mark A. Kubinski from the Attorney General’s Office for the State of Idaho, Jeff Ray, PIO for Department of Corrections. An open discussion was held as to concerns that the initial portion of the execution process was not open to viewing, but no resolution of the issues was achieved by the conclusion of the meeting. However, the State of Idaho representatives indicated that they would review the situation after dialogue with the media representatives.
Thereafter a letter dated February 1, 2012, was written on behalf of the State of Idaho by Mr. Kubinski, a true and correct copy of which is attached hereto as Exhibit F and incorporated herein as through fully set forth. This letter indicates that the representatives of the State of Idaho were not going to change their execution protocol.
The execution of Mr. Rhoades was the first execution in approximately 17 years in the State of Idaho and the only involuntary execution since 1957.
In preparation for said execution, the State of Idaho had re-written its protocol and procedures for every aspect of the execution. The execution process involves preparation of the condemned inmate and subsequent administration of a lethal injection.
The State of Idaho’s protocol conflicts with the First Amendment of the United States Constitution in that said protocol prevents the media or any other witnesses to the execution from observing the entirety of the process. Thus, witnesses are not allowed to view initial entry into the execution chamber, the connection of an electrocardiogram to the condemned inmate, restraint of the condemned inmate, insertion of catheters at various locations on the body of the

COMPLAINT FOR DECLARATORY JUDGMENT

AND INJUNCTIVE RELIEF

8

Charles A. Brown, Esq. P.O. Box 1225/324 Main St.
Lewiston, Idaho 83501 208-746-9947/208-746-5886 (fax)

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condemned inmate, or the final attachment of intravenous lines. Once this process is finalized,
window coverings are then removed and/or witnesses are allowed into the viewing area.
The remainder of the execution process is visible by witnesses present in the
viewing room.
Appendix A to the IDOC Protocol reads as follows:
At the designated time, the Escort Team will escort the offender to the execution room secured on the table by the prescribed means with the offender’s arms positioned at an angle away from the offender’s side.
After the offender has been secured to the execution table, the Escort Team leader will personally check the restraints which secure the offender to the table to ensure they are not so restrictive as to impede the offender’s circulation, yet sufficient to prevent the offender from manipulating the catheters and IV lines.
Once the offender is secured, the Medical Team leader will attach the leads from the electrocardiograph (EKG) machine to the offender’s chest and confirm that the EKG machine is functioning properly and that the proper graph paper is used. A backup EKG machine shall be on site and readily available if necessary.
A Medical Team member shall be assigned to monitor the EKG machine, and mark the EKG graph paper at the commencement and completion of the administration of each chemical. The assigned identifier of the Medical Team member monitoring the EKG machine shall be noted at each juncture.
Throughout the procedure, the Medical Team members shall continually monitor the offender’s level of consciousness and EKG machine readings, maintaining constant observation of the offender using one or more of the following methods: direct observation, audio equipment, camera, and television monitor as well as any other medically approved method(s) deemed necessary by the Medical Team leader. The Medical Team leader shall be responsible for monitoring the offender’s level of consciousness.
The assigned Medical Team members will insert the catheters and attach the IV lines.
The witnesses will be brought in to the applicable witness areas.
The issue before this Court is singular in nature. The issue not before this Court is
the constitutionality of capital punishment. Rather, the singular issue before this Court is whether

COMPLAINT FOR DECLARATORY JUDGMENT

AND INJUNCTIVE RELIEF

9

Charles A. Brown, Esq. P.O. Box 1225/324 Main St.
Lewiston, Idaho 83501 208-746-9947/208-746-5886 (fax)

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or not the entire execution process – including the preparatory phase – should be opened for viewing.
It should also be noted that at various times in the execution chamber representatives of the State of Idaho are garbed in such a manner as to protect their identity in order to handle the execution process.
Concealment of the identity of any state representative participating in the execution process is also not at issue and is not the focus of this Complaint.
Additional executions are planned but all are not yet scheduled. On May 17, 2012, an execution was scheduled for June 12, 2012, for Mr. Richard A. Leavitt. The State of Idaho has announced that Mr. Leavitt will be executed using a new one-drug protocol which will result in the execution team administering a singular lethal dose of pentobarbital through the IV instead of the three-drug series that was used for Mr. Rhoades’ execution in November. Thus, the preparation process is particularly critical to be observed given any complications that could arise during this portion of the execution procedure.
The execution of an individual by a state authority is the ultimate and absolute expression of governmental power in civilized society. Questions regarding the propriety of capital punishment remain for others to answer at a different time and date, but access to the execution process by both the public and the press is guaranteed under the First Amendment to the United States Constitution.
25. B. Historical Tradition of Public Executions in the United States As the Ninth Circuit Court has found in California First Amendment Coalition v.
Woodford, 299 F.3d 868, 30 Media L. Rptr. 2345 (9th Cir. 2002) the tradition of public executions in the United States originates with England, where for centuries public executions were routine,

COMPLAINT FOR DECLARATORY JUDGMENT

AND INJUNCTIVE RELIEF

10

Charles A. Brown, Esq. P.O. Box 1225/324 Main St.
Lewiston, Idaho 83501 208-746-9947/208-746-5886 (fax)

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commonplace, and surrounded by fanfare. Despite the gradual abolition of public executions by moving the practice behind prison walls, this heritage survived in many jurisdictions of the United States until the very last public execution in 1937.
Though the abolition of public executions changed the forum associated with the practice, statutory and procedural provisions preserved a high degree of public access to executions. States sought to guarantee the transparency of the execution process by statutorily requiring the presence of witnesses to view the event. In essence, these witnesses were intended to serve as representatives of the broader public. The press quite naturally assumed the role of a proxy or surrogate for the interests of the public as a safeguard to maintain the integrity and humanity of the execution process.
The California First Amendment Coalition v. Woodford court found that currently, every jurisdiction that allows capital punishment also requires the attendance of public and media witnesses. (Your complainants believe Indiana may be an exception to this general finding.)

COMPLAINT FOR DECLARATORY JUDGMENT

AND INJUNCTIVE RELIEF

11

Charles A. Brown, Esq. P.O. Box 1225/324 Main St.
Lewiston, Idaho 83501 208-746-9947/208-746-5886 (fax)

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26. C. Execution by Lethal Injection in Idaho and Delegation of Authority Effective March 31, 1982, the Idaho State Legislature enacted Idaho Code
§ 19-2716, a statute which prescribes lethal injection for all executions, subject to practicality exceptions that warrant death by firing squad.
The statute provides that the “punishment of death shall be inflicted by continuous, intravenous administration of a lethal quantity of a substance or substances approved by the director of the Idaho department of correction.” I.C. Ann. § 19-2716 (Lexis Supp. 2011). It expressly delegates to the director the authority to determine the exact substance or combination of substances to be employed.
In addition, the statute also delegates to the IDOC the authority to determine the procedures appropriate for all executions. Id.
The language of delegation within the statute reads as follows: “The director of the department of corrections shall determine the substance or substances to be used and the procedures to be used in any execution.” Id.
27. D. Preparatory Procedures for Administration of Lethal Injection Idaho Department of Correction’s regulations provide that the Idaho Maximum
Security Institution warden transfer custody of the chemicals necessary for a lethal injection to the Medical Team. The Medical Team supervisor then oversees preparation of the syringes utilized in the execution process.
These regulations allow four options for syringe preparation, dependent upon chemical availability. IDAPA 135.02.01.001, app. A, “Approved Chemicals.” Each option includes a series of injections to be administered in a predetermined sequence according to designated chemical charts. Two complete sets of chemicals are utilized in the execution process, while a

COMPLAINT FOR DECLARATORY JUDGMENT

AND INJUNCTIVE RELIEF

12

Charles A. Brown, Esq. P.O. Box 1225/324 Main St.
Lewiston, Idaho 83501 208-746-9947/208-746-5886 (fax)

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third set is readily available as back up. IDAPA 135.02.01.001, app. A, “Preparation of Chemicals.” Chemical amounts are titrated to a body weight of 500 pounds or less, unless modified for an offender whose weight exceeds this standard. IDAPA 135.02.01.001, app. A, “Approved Chemicals.”
No later than four (4) hours prior to the execution, the condemned inmate is offered a mild sedative, dependent upon the particular prisoner’s need, an additional sedative may be administered if it is determined medically necessary.
At the appointed time, the prisoner is subsequently moved from an isolation cell into the execution chamber and secured to the execution table. IDAPA 135.02.01.001, app. A, “Preparation, Movement and Monitoring of Offender.”
Leads from an electrocardiograph machine are then attached to the prisoner’s chest. Id.
Both a primary intravenous catheter and a backup intravenous catheter are inserted at two separate locations on the prisoner, unless the Medical Team leader determines that two (2) peripheral lines cannot be reliably placed. IDAPA 135.02.01.001, app. A, “Intravenous Lines.” In order of preference, the potential insertion sites are designated as the prisoner’s arms, hands, ankles, and feet. The insertion sites are determined at the discretion of the Medical Team leader. The Medical Team leader also retains discretion to either apply or not apply a localized anesthetic to the venous access points. Id.
If, in the opinion of the Medical Team leader, peripheral lines cannot be reliably placed, IDOC’s regulations prescribe placement of a central line catheter by a member of the Medical Team. Id.
28. E. Witness Observation of the Execution Process

COMPLAINT FOR DECLARATORY JUDGMENT

AND INJUNCTIVE RELIEF

13

Charles A. Brown, Esq. P.O. Box 1225/324 Main St.
Lewiston, Idaho 83501 208-746-9947/208-746-5886 (fax)

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According to IDOC’s regulations, the director of the IDOC, or a designee, possesses discretion to determine the number of persons allowed in the Execution Unit, which includes witness areas, during the execution. In fact, placement of attendees in the Execution Unit is subject to change at the discretion of the Idaho Maximum Security Institution warden.
Subject to this overarching backdrop of complete discretion, IDOC’s regulations allot four (4) seats in the witness area to representatives of the news media. One seat is allocated to the Associated Press, while the remaining seats are allocated by random drawing. One of these seats is reserved for media from the county of the prisoner’s conviction. Again, however, the director of the IDOC determines which local media organizations qualify to participate in the pool.
Witnesses are not allowed into the witness area until after the condemned inmate has been escorted into the execution chamber, the condemned inmate has been strapped to the execution table, the condemned inmate has been offered a sedative, an electrocardiograph machine has been attached to the condemned inmate’s chest, all necessary catheters have been inserted into the condemned inmate’s body, and all intravenous lines have been attached.
The Defendants do not allow either public or media witnesses the opportunity to view or observe any portion of this preparatory phase of the execution process.
Although witnesses can hear the condemned inmate’s last statement, they are unable to hear any utterances or noises made by the condemned inmate during administration of the lethal injection itself.
By preventing the public and press from viewing the entirety of the execution process, and the preparatory phase in particular, Defendants have effectively removed the execution process from any meaningful form of public scrutiny and have silenced any fruitful public debate.

COMPLAINT FOR DECLARATORY JUDGMENT

AND INJUNCTIVE RELIEF

14

Charles A. Brown, Esq. P.O. Box 1225/324 Main St.
Lewiston, Idaho 83501 208-746-9947/208-746-5886 (fax)

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The Defendants have arbitrarily and unconstitutionally denied Plaintiffs the opportunity to evaluate the quality and integrity of the execution process. Without access to observe the entirety of the execution process, Plaintiffs have been denied the opportunity to critically examine the execution procedures implemented by the IDOC in order to ensure compliance with “the evolving standards of decency which mark the progress of a maturing society.” Cal. First Amend. Coalition, 209 F.3d at 876 quoting Trop v. Dulles, 356 U.S. 86, 101 (1958).
29. At all times relevant hereto, Defendants have enforced and continue to enforce the practices, procedures, and protocol of the IDOC and its employees pertaining to the execution process. These practices, procedures, and protocol include preparation of chemical syringes for use on the condemned inmate, movement of the condemned inmate to the execution chamber, the connection of an electrocardiogram to the condemned inmate, restraint of the condemned inmate, administration of a sedative to the condemned inmate, insertion of catheters at various locations on the body of the condemned inmate, and final attachment of intravenous lines. These practices, procedures, and protocol constitute the policy of the Defendants, the IDOC, and the State of Idaho with respect to the subject matter thereof.
30. The regulatory requirement of witness attendance at an execution, by representatives of the public who observe the process through which a sentence of death is imposed upon a condemned inmate, allows viewing of the execution process in its entirety. Without the advantage of a transparent execution process, a process open to view in its entirety from start to finish, the fundamental motivating purpose behind witness attendance at an execution is lost.

COMPLAINT FOR DECLARATORY JUDGMENT

AND INJUNCTIVE RELIEF

15

Charles A. Brown, Esq. P.O. Box 1225/324 Main St.
Lewiston, Idaho 83501 208-746-9947/208-746-5886 (fax)

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31. Official witnesses, including members of the media, serve as surrogates of the public at large. Well-recognized is the public’s “First Amendment right to view executions from the moment the condemned inmate is escorted into the execution chamber, including those initial procedures that are inextricably intertwined with the process of putting the condemned inmate to death.” Id. at 877. Indeed, “[i]ndependent public scrutiny … plays a significant role in the proper functioning of capital punishment.” Id. at 876. Public access to an open execution process enhances institutional legitimacy for governmental action that expresses an ultimate coercive authority to impose the finality of death, promoting “an appearance of fairness, thereby heightening public respect for the judicial process.” Id. at 877. From the standpoint of justice in a free society and appropriate punishment for transgressions against societal norms, “public observations of executions fosters the same sense of catharsis that public observation of criminal trials fosters.” Id. Shrouding a key stage of the execution process behind a veil of secrecy defeats the public interest in verifying governmental assurances that punishment of the condemned is both fair and effective.
32. The Defendants, those acting in concert with them, and the State of Idaho as a matter of practice, procedure, protocol, and policy have consciously chosen to limit public access to all phases of the execution process. The Defendants have been advised that their actions contravene the dictates of the First Amendment to the United States Constitution, as applied to the states through the Fourteenth Amendment. See Exhibits A and C hereto. Contrary to Defendants’ assurances, a review of the execution protocol followed by the IDOC has not occurred. Defendants, in fact, have refused to modify the protocol in any aspect.
33. As a direct and proximate result of Defendants’ actions that inhibit media and lay witnesses from observing the execution process in its entirety from start to finish: (a) the qualified

COMPLAINT FOR DECLARATORY JUDGMENT

AND INJUNCTIVE RELIEF

16

Charles A. Brown, Esq. P.O. Box 1225/324 Main St.
Lewiston, Idaho 83501 208-746-9947/208-746-5886 (fax)

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First Amendment right of access to governmental proceedings supposedly enjoyed by the press and the public have been continually violated and (b) vigorous and robust public debate concerning the merits of lethal injection as a form of execution has been silenced.
V. – CAUSE OF ACTION VIOLATION OF PLAINTIFFS’ FIRST AMENDMENT RIGHT OF
ACCESS TO GOVERNMENTAL PROCEEDINGS 34. Plaintiffs incorporate by reference all preceding paragraphs as if set forth herein and further allege as follows: 35. In creating, maintaining, and implementing the practice, procedure, protocol, and policy of preventing witnesses’ uninhibited and uninterrupted observation of the execution process in its entirety, Defendants at all times relevant hereto have acted, and continue to act, under the color and authority of state law. 36. Defendants’ practice, procedure, protocol, and policy prevent execution witnesses from observing the entirety of the execution process both visually and audibly, so that the purpose behind witness attendance at executions is severely impaired. Defendants thereby exclude witnesses from any observation of the condemned inmate’s movement into the execution chamber and connection of monitoring equipment to the condemned inmate. 37. Under 42 U.S.C. § 1983, the Plaintiffs are entitled to injunctive and prospective relief prohibiting the Defendants from violating their rights, privileges, or immunities under federal law, the Plaintiffs are not seeking an injunction delaying the execution itself, but only that when said execution does take place that the execution process is open to view by the witnesses.
VI. - PRAYER

COMPLAINT FOR DECLARATORY JUDGMENT

AND INJUNCTIVE RELIEF

17

Charles A. Brown, Esq. P.O. Box 1225/324 Main St.
Lewiston, Idaho 83501 208-746-9947/208-746-5886 (fax)

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WHEREFORE, the Plaintiffs respectfully pray that this Court order the following relief

and remedies:

FIRST:

Declare that the practice, custom, and usage of preventing witnesses to

an execution from viewing the entire execution process – starting from the preparatory phase –

violates the First Amendment to the United States Constitution, as well as the Constitution’s Due

Process clause as incorporated by the Fourteenth Amendment to the United States Constitution.

SECOND: Grant a permanent mandatory injunction requiring all phases of the

execution process, beginning with the condemned inmate’s procession into the execution

chamber, the restraining of the condemned inmate on the execution table, the connection of

medical monitoring devices, the insertion of catheters, and the attachment of IV lines, and all

incidental treatment of the condemned inmate be conducted in full and open view of the assembled

witnesses to that execution.

THIRD:

For an award of the Plaintiffs’ nominal damages, the costs of this action,

and a reasonable attorney's fee pursuant to 42 U.S.C. § 1988 and Fed. R. Civ. P. 54.

FOURTH: For all such other and further relief as the Court deems to be just and

equitable.

DATED on this 22nd day of May, 2012.

/s/ Charles A. Brown Charles A. Brown Attorney for Plaintiffs.

COMPLAINT FOR DECLARATORY JUDGMENT

AND INJUNCTIVE RELIEF

18

Charles A. Brown, Esq. P.O. Box 1225/324 Main St.
Lewiston, Idaho 83501 208-746-9947/208-746-5886 (fax)

Case 1:12-cv-00255-EJL Document 1 Filed 05/22/12 Page 19 of 19

V E R I F I C A T I O N
TODD DVORAK, being first duly sworn on his oath, deposes and says: That he is the Administrative Correspondent and Registered Agent in the State of Idaho for The Associated Press, one of the Plaintiffs in the above-entitled matter, that he has read the foregoing Complaint for Declaratory Judgment and Injunctive Relief, well knows the contents thereof and verily believes that the facts therein stated are true.
DATED on this 22nd day of May, 2012.

/s/ Todd Dvorak Todd Dvorak, Administrative Correspondent & Registered Agent for The Associated Press

STATE OF IDAHO

)

: ss.

County of Ada

)

I, Cordell Rich , a notary public, do hereby certify that on this 22nd day of May, 2012, personally appeared TODD DVORAK, who, being first duly sworn, declared that he is the Administrative Correspondent and Registered Agent in the State of Idaho for The Associated Press, one of the Plaintiffs in the foregoing document, and that the statements therein contained are true.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal on the day and year first above written.

(SEAL)

/s/ Cordell Rich Notary Public for Idaho Residing at: Boise Id My commission expires on: 13 Apr 2018

COMPLAINT FOR DECLARATORY JUDGMENT

AND INJUNCTIVE RELIEF

19

Charles A. Brown, Esq. P.O. Box 1225/324 Main St.
Lewiston, Idaho 83501 208-746-9947/208-746-5886 (fax)

Case 1:12-cv-00255-EJL Document 1-1 Filed 05/22/12 Page 1 of 12

· MESSAGES IN APIEXECUTION FOR: Chuck

PHONEslips

Nov.15, 2011
Brent Reinke, Director Idaho Department of Comction
Dear Director Reinke:
We in the press were disappointed to be informed today that the department doesn't intend to match its procedures for press witnesses of the upcoming execution of Paul Ezra Rhoades to the Woodford decision issued by the 9th Circuit, which calls for the press witnesses, as the representatives of the public, to view the entire execution, including the strapping ofthe prisonet• to the gmney and the insertion ofiVs, rather than just the final pm1ion or "the dying."
As you may be aware, in California First Amendment Coalition and Society ofProfessional Journalists v. Woodford, the 9th Circuit held in 2002 that "the public enjoys a First Amendment right to view executions from the moment the condenmed is escorted into the execution chamber, including initial procedures that are inextricably intertwined with the process ofputting the condemned illlllate to death." The appellate coUlt for our district ruled that it is unconstitutional to prevent "unintenupted viewing of executions from the moment the condemned enters the execution chambet• through, to and including, the time the condellllled is declared dead."
We in the press take our responsibility to serve as the eyes and em'll of the public very sedously. It is not oue intent in any way to interfere with or delay the procedures related to this weighty n1atter; a simple decision to bring the press witnesses lnto the chamber approximately 25 minutes earlier than is othetwlse contemplated would remedy the situation and ensure that procedures followed are in line with the 1st Amendment to the U.S. Constitution, as interpreted by our comts. We do not believe this would require any alteration to your established
protocols, as they do not give a specific time for brlnging in the media witnesses.
We urge you to promptly consider and make this change, and look forward to continuing to work with you 1n a professional and respectful manner. Thank you.
Sincerely, Betsy R11Ssell, president, Idaho Press L;ltm. ••
• • • •IA!so endorsing this letter: The Associated Press, The Post Register, The Idaho Statesman, Blackfoot Manring News, Newspaper Association ofldaho, Idaho State Broadcasters Association, Idaho Press·Tl'lbune

The infonnation contained in this communication is intended for the use of the designated recipients named

above. If the reader ofthis communication is not the intended recipient, you are hereby notified that you have

received this communication in error, and that any review, dissemination, distribution or copying ofthls

colllllmnication is strictly prohibited. Ifyou have received tllis coJlllllUnication in error, please notifY The

Associated Press immediately by telephone

delete tlrls email. Thank you.

[ll' _US _DISC] msk dccc60c6d2c3a6438fDcf467d9a4938

I I EXHIBIT A

Case 1:12-cv-00255-EJL Document 1-1 Filed 05/22/12 Page 2 of 12

· MESSAGES IN AP!EXECUTION FOR: Chuck

PHONEs lips

Sent from my iPhone
Begin fonvarded From: Jeffrey Date: November To: Rebecca Boone Subject: Re: Question Hi Becky:
The procedures were developed so that we would preserve the dignity of the offender. After discussing the matter with Director Reinke and legal counsel we have chosen to follow the procedures as they are written.
Jeff Ray Public Information Officer
Det)atirnent of Con·ecliton

The information contained in this e-mail message and any attaclunents may be pl'lvlleged and confidential. If the reader of tllis message is not the intended recipient or an agent responsible for delivering it to the intended recipient, you are hereby notified that any review, dissemination, distl'lbution or copying ofthis conununication Is stl'lctly prohibited. Ifyou have received tWs communication in en·or, please notifY the sender immediately by replying to tWs e-rnul! and delete the message and any attachments fi·om your cmnputer.

"Boone,

1115/201110:29 AM>>>

Hi Jeff,

I talked to Director Reinke Friday evening about a possible issue with the timing ofwhen the media will be

brought into the execution chamber- there's a 9th Circuit ruling from 2002 (California First Amendment

Coalition et al v. Jerume Woodford eta!, Case No. 00-16752) that found that in order to comply with the 1st

Amendment, the media/public witnesses must be able to view the execution from the moment the condemned

walks into the execution chamber.

The director said he was going to look into it, and that he may try to move up our entrance to the witness area by

20 minutes to satisfY that requirement. I just wanted to double-check and see ifthe issue was resolved, and If

there's anything I can do to help. The Idaho Press Club is interested in this, and I've got folks asking me if it's

been figured out. Here's a link to the 1uling, in case you need it:

http://www.firstamendmentcoalitlon.org/handbooklcases/CFAC_v_Woodford.pdf

Thanks -- I know you're completely slammed.

B\lst,

Becky

EXHIBIT

Case 1:12-cv-00255-EJL Document 1-1 Filed 05/22/12 Page 3 of 12

MESSAGES IN AP!EXECUTION FOR: Chuck

Rebecca Boone

101 S.

Boulevard, Ste. 304

PHONEslips

The inf01mation contained in this connnunicatlon is intended for the use ofthe designated recipients named above. Ifthe reade1' of this communication is not the intended recipient, you are hereby notified that you have received this connnunicatlon in error, and that any review, dissemination, distribution or copying ofthis communication is strictly prohibited, Ifyou have received this coll\ll\unlcation in en~ notify The Associated Press immediately by telephone at . . . . . . . and delete this email. Thank you. [IP_US_DISC] msk dccc60c6d2c3a6438:f0cf467d9a4938
ATTACHED FILES
winmail.dat

3

Case 1:12-cv-00255-EJL Document 1-1 Filed 05/22/12 Page 4 of 12
l
''
J '
CHARLES A. BROWN

l

November 16,2011

ATTORNEY AT LAW
I
f

Brent Reinke, Director Idaho Department of Correction Mark Kubinski, Deputy Attorney General Idaho Department of Correction 1299 North Orchard Street, Suite 110 Boise, JD 83706

David Hensley, ChlefofStaff Office ofthe Governor P.O. Box 83720 Boise, JD 83720-0034

Dear Sirs:

I arn legal counsel for The Associated Press, The Idaho Press Club, The Post Register, Blackfoot Morning News, Idaho Statesman, Idaho State Journal, Lewiston Tribune, Newspaper Association ofidaho, Idaho State Broadcasters Association, and The Idaho Press Trlbnne.

t
l

I am writing you in regard to the scheduled execution of Paul Ezra Rhoades set for this Friday, November 18,2011. It appears that Idaho's protocol conflicts with the law as set forth in theNintl1 Circuit.
There is a20 minute window in Idaho's protocol that does not allow the media or any other witness
to the execution to view the entirety of the process. In this case, witnesses wlll not be allowed to view the condemned inmate being strapped down and the IV's being inserted.

As you know, there is a First Amendment right to view all aspects of the execution.

324 Main St., P.O. Box 1225, lewlston,ID 83501 OHice 12081 746·9947 Faoslmlle 12081 746·5886

EXHIBIT

Case 1:12-cv-00255-EJL Document 1-1 Filed 05/22/12 Page 5 of 12

,
\

-

-

-

-.

·

i•

Brent Reinke, Director Mark Kubinski, Deputy Atlorney General David Hensley, Chief of Staff Page2 November 16, 2011

When Rebecca Boone, a newswoman for The Associated Press, talked to you, Director Reinke, abollt her concerns and the application of the Ninth Circuit case, you indicated you would review the situation, Ms. Boone followed up with an email to Jeff Ray, the Public Information Officer for the Idaho Department ofCorrection, on November 15,2011, again reiterating her concerns at which time Mr. Ray responded as follows:

The procedures were developed so that we could preserve tho dignity ofthc offender. After discussing the matter with Director Reinke and legal counsel, we have chosen to follow the procedures as they are written.

The purpose of this Jetter is to request reconsideration of that position. The Ninth Circuit case in question is Califomla Firs/ Ame11dment Coa/11/oll v. Jeanne Woodford,299F.3d 868 (9th Clr, 2002), 30 MediaL. Rptr. 2345 (Aug. 2002).

In that case the Ninth Circuit specifically dealt with the:> situation where:> "witnesses were not permitted to watchBonitt [the condemned prisoner] as the guards brought him into the chamber, tied him down to the gurney, inserted the intravenous lines and left him alone to await the warden's order to dispense the chemicals. Rather, by !he time prison officials opened the chantber curtains, permitting the witnesses to see Inside the chamber, Bonin lay mollonless on the gurney, appearing to be asleep or sedated. (Bonin had not, in fact, been sedated.) The lethal chemicals were then administered-without any annom10ement to the witnesses-and after several minutes, Bonin was declared dead. The witnesses, therefore, observed Bonin as he died, but were unable to see the:> processes leading to that point."

The Ninth Circuit Court stated:

The issues presented involve the balance between the State's ability to carry out executions in a safe and orderly manner and the public's right to be informed about how the State and its justice system implement the most serious pnnishment a state can exact from a crlm!nal defendant-the penalty ofdeath.

The Court specifically fo1md ihat "we reach the question and conclude thallhe public does indeed

enjoy aFirst Amendment right of access to view executions from the moment the condemned is

I

escorted Into the execution chamber."

Case 1:12-cv-00255-EJL Document 1-1 Filed 05/22/12 Page 6 of 12

l

i

I

i
I '

Brent Reinke, Director

i

Mark Kubinski, Deputy Attorney General

David Hensley, Chief ofStaff

l

Page3 November 16, 2011

!

I
I

f

In explaining its opinion, the Court specifically stated:

Independent public scrutiny-made possible by the public and media witnesses to an execution·plays a significant role in the proper functioning of capital punishment. An informed public debate is critical in detennining whether execuHon by lethal irtjection comports with "the evolvhlgstandards ofdecencywhich mark the progress of a maturhtg society." (citation omitted) To determine whether lethal injection executions are fairly and humanely admirtistercd, or whether they ever can be, citizens must have reliable informatio11 about the "initial procedures," which are invasive, possibly painful and may give rlse to serious complications.

Much more is known today than when the rules were written about complications involving lethal injection. In 2009, the <:xecufion ofRomell Broom was halted after Ohio prison authorities spent an unprecedented two hours frying to insert a needle. According to news accounts, Broom said he was stuck with needles at least 18 times, with pain so excruciating he cried and screamed.

In Oregon's last <:xecution in 1997, there were also delays beoause the IV team had trouble finding a suitable vein, Wib1esses must see and hear the inmate's reaction and the staff discussion to fully evaluate the state's perfomtance,

Please lnfonn Ms. RebeccaBooneorMr. Todd Dvorak, both with The Associated Press no later than

5:00p.m. today, November 16, 2011, whether

the 20

time

will be

allowed. Their email addresses are as follows:

Thank you for your consideration.

s;,-~L

aries A. Brown Attomey at Law
CAB:clb

(This faC$imile consists offhree (3) pages.)

Case 1:12-cv-00255-EJL Document 1-1 Filed 05/22/12 Page 7 of 12

MESSAGES ll'l AP/EXECUTIONFOR: Chuck

PHONEs lips 11-16-11 4:53pm

Date: Wed, 16Nov 2011 17:52:46-0700 To: charlesabrown@cableone.net

Cc: Rebecca Boone, Associated Todd Dvorak, Associated
From: Brent D. Reinke, Director
Date: November 16, 2011
RE: Request to view
Dear Mr. Brown,
Thank you for yam· letter regarding your clients' desire to view all aspects ofthe November 18 execution ofPaul Ezra Rhoades. The changes you have requested at this late hour to !DOC's execution procedures would have a potentially disruptive effect on the entire process. Among other things, it could compromlse the anonymity ofmembers of!DOC's execution team.
We are aware of the Ninth Circuit Court's mling which you cite in your correspondence. The ruling was based on facts unique to California.
In the months to come we shall review every aspect ofFriday's execution. As we do, we shall welcome your clients' input on how we can improve this process.
Sincerely,
Brent D. Reinke, Director Idaho Department of C01rection

EXHIBIT

Case 1:12-cv-00255-EJL Document 1-1 Filed 05/22/12 Page 8 of 12

MESSAGES IN AP/EXECUTION FOR: Chuck

PHONEslips

Brent Reinke. vcf

2

Case 1:12-cv-00255-EJL Document 1-1 Filed 05/22/12 Page 9 of 12

I

CHARLES A BROWN

I

I

AlTO!lNEY AT LAW

1

I

November 17, 2011

l

l '

Brent D. Reinke, Director

Idaho Department of Correction 1299 North Orchard Street, Suite 11 0

Boise, ID 83706

Dear Mr. Reinke:

Thank you for your email of November 16,2011. You Indicate In youremalithat my client has made this request "at this late hour to !DOC's execution procedures," but It should be noted that the applicable Ninth Circuit case Is a 2002 case and one would like to think that !DOC's execution procedures would have been compliant with the clear case law of our Circuit.

l
i
l

You also Indicate In your email thallhe Ninth Circuit ruling"... was based on facts unique to California." I have to strenuously disagree with that position. The factual and legal parallel of the Ninth Circuit case Is direct and unquestionably so, and our position in this matter Is extremely secure.

In your email you Indicate that In the months to come you Intend to review every aspect

of Friday's execution, but It Is my understanding that another execution has been

scheduled for February 2012. Thus, It would behoove the process to have an Immediate

review of !DOC's execution procedures so that reassurance can be given that lOOO's procedures are compliant with the applicable Jaw, so that a "late hour" challenge can be avoided.

';,.
'

My clients have Indicated that they do not want to Interfere with the Rhoades execution
with the understanding that a timely and meaningful review process will proceed.

Could you please give me a time line as to your proposed review process so that future complications and challenges can be avoided.

EXHIBIT

324 Main st., P.o. Box 1226, Lewiston, iD 83501
Office (208) 746-9947 Facsimile (208} 746·5886

Case 1:12-cv-00255-EJL Document 1-1 Filed 05/22/12 Page 10 of 12

Brent D. Reinke, Director Page 2 November 17, 2011
Thank you for your consideration. Sincerely,

Charles A. Brown Attorney at Law
CAB:blr

(This facsimile consists of two (2) pages.)

I

I
I

I

All of the pages comprising this facsimile trai!Smission contain confidential or privileged

I

infom1ation from the Jaw office of Charles A. Brown, This infonnation is Intended solely for use by the individual or entity named as the recipient. If you are not the intended recipient, be aware

I

that any disclosure, copying, distribution, or use ofthe contents ofthis transmission is prohibited. If you have received tllis transmission in error, please notify us by telephone immediately so we

I

may arrange to retrieve this transmission at no cost to you. Thank you for yom assistance.

l

i '

Case 1:12-cv-00255-EJL Document 1-1 Filed 05/22/12 Page 11 of 12

FEB/01/201 2/WRD 06: J 9 PM

P. 002

I

STATE Or IDAHO
OFf!Of' OPlH•ATTORN~ OENSIW. IAIVASNOE G, WAsD!W

llebrue.ry 1, 2012.
Charles A Brown P.o. :Box 12M Lewiston, ID 83501
Vla U.S. Mill! andFao:liniiile:1
RB: Media Aues~ to llxeO\ltlons
))ear Mr. llKOWll:
On be:b.alfofDireotor Reinke and the idaho Depattment oi;' Conoot!on ("IDOC"), !bank you to you and the media repr$en1alives that attended tho meeting ott January 24, 201lto discuss the lssue ofmedia 2008'1~ fo llXCO\ltiOns, i believe the ruee({ng,yM benoflolnJ. to both a!des li1 l¢~ms of1wderstandlug each )?arty's OO))Oolns and pex~ootives.
As r\ll\derstand yom· olienta' pos)flon, you believe that the medi~ witnesses sh01Jld be cl.loWed to
view fue ex~utioupl'O\lOSs :froin the t!rue the MThudeds bro1.ghtiuto the exeoution chamber linUllhe pADDO\\UOeru.ent ofdeath, It ls my .!Urthenmdel.~landing that you bMa yo\11' clients' position ou th& N!ntll Cl.rcu.it Court ofAppeals' .?P!nlOlliD CnlifomlaFirst'Arnendment Coali/iotJ v. Wooriford, 299 F.3d B68 (9"' C!r. 2002). I havo rovJowod the Wooiiford ophllon and llD1 aware ofthe deolslou 1-eaoh<id by the oomt based on thof\lota lll!d evJdencoprosenled in Califoroln. rtla ll!o IDOC's podt!ou, however, that there ru'o sevot'!ll distinotlous \llllq1te to Idaho, whloh dis6ngulshos Xdllbo's ~xeoutlon proc~ from tho Callfornla vrooess oousid&red by tbe oomt.
-----~-dtlltl~n~Uy,--th,e-lJ;IGG-b~ll'WGs-ilia\'lls-~x•Qul(en1'•"to~ol,-&tBI\Qal'<l-0por<~!;illg-Ji!r<.>cedux"---~---J ·------J~S;OM1u(I~-("'OO'P1:S5"};-adeqna~ly-bslMe~\-the'!l\lbllG'wight-to·Witnmex¢4uti.ons..-.wth------t­
the ID0C1a·need to oarry 0111 its 8!~Mo;y obligation in a ~llfa tllld lJl'Ofosaional manner, while !U-.lntalnlng tei).Jeot And dlgultyfo;• s.lJ partios involved, 'I'horeforo, after due consideration, the IDOCbas dotmu!ned that its ox.e<>utiontW90(>11~... currently O\ltllnediu,SOP 135 provtdos the bast !llall.ller for it to meet its responslblltt!os. As 8UOb, yo11Y o).io))ts' request fOl' modifioation of SOP 135 is respectfully denied,
EXHIBIT

Case 1:12-cv-00255-EJL Document 1-1 Filed 05/22/12 Page 12 of 12

FEBiOI/2012/Y/ED 06:19PM
Siuaaroly,
jf~jl-~- .
Mru-k.A•.Kid1iu~l(( . : . .. · .
. Le,all Deputy Att.ot11eY'!oUenl
• c.o: )Jlt~alor Reinke· :jeff'My,IDO • Todd Dvorak Rebecca Boon '

P. 003
Cl\a.\'lOI A..Bl'QW!l
Fob;;tary I, 2012 Page2

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 Case 1:12-cv-00255-EJL Document 19 Filed 06/05/12 Page 1 of 20
UNITED STATES DISTRICT COURT DISTRICT OF IDAHO

THE ASSOCIATED PRESS, a New York corporation; IDAHO STATESMAN PUBLISHING, LLC, a Delaware limited liability company d/b/a The Idaho Statesman; LEE ENTERPRISES, INCORPORATED, a Delaware corporation d/b/a The Times-News; THE IDAHO PRESS CLUB, INC., an Idaho corporation; PIONEER NEWSPAPERS, INC., a Nevada corporation d/b/a Idaho PressTribune, Idaho State Journal, Standard Journal, Teton Valley News, The New-Examiner, The Preston Citizen, and Messenger Index; TPC HOLDINGS, INC., an Idaho corporation, d/b/a Lewiston Tribune and Moscow-Pullman Daily News; BAR BAR INC., an Idaho corporation d/b/a Boise Weekly; COWLES PUBLISHING COMPANY, a Washington corporation, d/b/a The Spokesman Review; and IDAHOANS FOR OPENNESS IN GOVERNMENT, INC., an Idaho non-profit corporation,

Civil No. 1:12-cv-00255-EJL ORDER

Plaintiffs,

vs.

CL. (BUTCH) OTTER, in his official capacity as the Governor of the State of Idaho; ROBIN SANDY, HOWARD G. “J.R.” VAN TASSEL, and JAY L. NIELSEN in their official capacity as the Idaho Board of Correction; BRENT D. REINKE, in his official capacity as the Director of the Idaho Department of Correction; and KEVIN KEMPF in his official capacity as Division Chief of Operations of the Idaho

ORDER - 1

Case 1:12-cv-00255-EJL Document 19 Filed 06/05/12 Page 2 of 20
Department of Correction, Defendants.
Pending before the Court in the above-entitled matter is Plaintiffs’ Expeditied Motion for Preliminary Injunction (Dkt. 2). The Complaint and motion were filed on May 22, 2012. The Court granted the request for expedited briefing and also ordered the parties to participate in mediation with Chief United States Magistrate Judge Candy W. Dale. The mediation was unsuccessful. The Defendants filed their response to the motion on May 29, 2012 and a supplement on May 30, 2012. Plaintiffs filed their reply brief on June 4, 2012.
Having fully reviewed the record, the Court finds that the facts and legal arguments are adequately presented in the briefs and record. Accordingly, in the interest of avoiding further delay, and because the Court conclusively finds that the decisional process would not be significantly aided by oral argument at this stage of the litigation, this matter shall be decided on the record before this Court without oral argument.
FACTUAL BACKGROUND The Plaintiffs are comprised of a number of newspaper publishing companies located throughout the State of Idaho, the Associated Press, and Idahoans for Openness in Government, Inc., an Idaho non-profit corporation. The Defendants are the Governor of the State of Idaho, C. L. “Butch’ Otter; the individual members of the Idaho Board of ORDER - 2

Case 1:12-cv-00255-EJL Document 19 Filed 06/05/12 Page 3 of 20
Corrections, Robin Sandy, Howard G. “J.R.” Van Tassel and Jay L. Nielsen; the Director of the Idaho Department of Corrections (“IDOC”), Brent Reinke; and the Division Chief of Operations of the IDOC, Kevin Kempf. The Defendants are sued in their official capacities. Plaintiffs filed their Complaint pursuant to 42 U.S.C. § 1983 seeking a preliminary injunction, a permanent injunction and declaratory relief in response to alleged First Amendment violations by the IDOC via the procedures or protocol used by IDOC for death penalty executions. Plaintiffs specifically seek a preliminary injunction regarding the procedures used for the execution of Mr. Richard Leavitt currently scheduled for June 12, 2012.
Plaintiffs are requesting that IDOC allow the witnesses to any execution view the execution from the time the inmate enters the execution chamber. While the protocol is very specific for executions carried out by the IDOC, in general, the current IDOC procedures allow for witnesses to view the execution process only after the inmate has entered the execution chamber, has been restrained, intravenous (“IV”) catheters have been placed and medical personnel have left the viewable area of the execution chamber. Defendants maintain IDOC’s execution procedures allow for the privacy of the condemned inmate and dignity in the implementation of a death sentence. Defendants argue the current protocol does not violate the First Amendment and any limits of First Amendment rights are proper based on rationally related penological reasons for such limits. Defendants also argue an injunction request is not timely filed based on the date
ORDER - 3

Case 1:12-cv-00255-EJL Document 19 Filed 06/05/12 Page 4 of 20
of the scheduled execution of Mr. Leavitt within a week and the need to practice the exact protocol being used prior to the scheduled execution.
STANDARD OF REVIEW FOR PRELIMINARY INJUNCTION Preliminary injunctions are designed to preserve the status quo pending the ultimate outcome of litigation. They are governed by Federal Rule of Civil Procedure 65(b) which requires the moving party to show "specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition. . . .” Under Rule 65(b) and Ninth Circuit case law, a plaintiff may obtain a preliminary injunction only where he or she can “demonstrate immediate threatened injury.” See, e.g., Caribbean Marine Servs. Co. v. Baldridge, 844 F.2d 668, 674 (9th Cir. 1988) (emphasis in original). Speculative injury does not constitute irreparable injury sufficient to warrant granting a preliminary injunction. Goldie's Bookstore Inc. v. Superior Court, 739 F.2d 466, 472 (9th Cir. 1984). Fed. R. Civ. P. 65(b) discusses the procedure to be followed on an application for a preliminary injunction. A preliminary injunction may issue even though a plaintiff’s right to permanent injunctive relief is not certain. The grant or denial of a preliminary injunction is a matter of the court’s discretion exercised in conjunction with the principles of equity. See: Inland Steel v. United States, 306 U.S. 153 (1939); Deckert v.
ORDER - 4

Case 1:12-cv-00255-EJL Document 19 Filed 06/05/12 Page 5 of 20
Independence Shares Corp., 311 U.S. 282, 61 S. Ct. 229, 85 L.Ed. 189 (1940); and Stanley v. Univ. of Southern California, 13 F.3d 1313 (9th Cir. 1994).
While courts are given considerable discretion in deciding whether injunctive relief should be issued, injunctive relief is not obtained as a matter of right and it is considered to be an extraordinary remedy that should not be granted unless the movant, by a clear showing, carries the burden of persuasion. See: Sampson v. Murray, 415 U.S. 61 (1974); Brotherhood of Locomotive Engineers v. Missouri-Kansas-Texas R. Co., 363 U.S. 528 (1960); and Stanley v. Univ. of Southern California, 13 F.3d 1313 (9th Cir. 1994).
In each case, the district court “must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief.” Amoco Production Co. v. Gambell, 480 U.S. 531, 542 (1987). In Winter v. Natural Resource Defense Council, Inc., 555 U.S. 7 (2008), the United States Supreme Court held that, in order to be entitled to a preliminary injunction, the moving party must demonstrate (1) likelihood of success on the merits; (2) that he or she is likely to suffer irreparable harm in the absence of preliminary relief; (3) that the balance of equities tips in his or her favor; and (4) that an injunction is in the public interest. 555 U.S. at 20; see also, Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009).
Prior to the Supreme Court’s ruling in Winter, the Ninth Circuit applied alternative tests in determining whether a preliminary injunction should be granted: “[a] preliminary
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injunction is appropriate when a plaintiff demonstrates either: (1) a likelihood of success on the merits and the possibility of irreparable injury; or (2) that serious questions going to the merits were raised and the balance of hardships tips sharply in [the plaintiff’s] favor.” Lands Council v. McNair, 537 F.3d 981, 987 (9th Cir. 2008). The Ninth Circuit reasoned that “[t]hese two options represent extremes on a single continuum: the less certain the district court is of the likelihood of success on the merits, the more plaintiffs must convince the district court that the public interest and balance of hardships tip in their favor.” Id. In Winter, the Supreme Court expressly disapproved the “possibility of harm standard,” stating that “the Ninth Circuit’s ‘possibility’ standard is too lenient . . . [and the proper] standard requires plaintiffs seeking preliminary relief to demonstrate that irreparable injury is likely in the absence of an injunction.” 555 U.S. at 22 (emphasis in original). This left open the question, however, of whether the remaining aspects of the Ninth Circuit’s sliding scale test for preliminary injunctions remained good law.
The Ninth Circuit clarified the issue in Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127 (9th Cir. 2011). In that case, the Court of Appeals held that although Winter had raised the bar on what must be shown on the irreparable harm prong to justify a preliminary injunction, it did not alter the district court’s authority to balance the elements of the preliminary injunction test, so long as a certain threshold showing is made on each factor. 632 F.3d at 1134-35. The court in Wild Rockies stated that “the ‘serious questions’ approach survives Winter when applied as part of the four-element Winter
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test.” Id. at 1135. In other words, “‘serious questions going to the merits’ and a hardship balance that tips sharply toward the plaintiff can support issuance of an injunction, assuming the other two elements of the Winter test are also met.” Id.
ANALYSIS 1. Timeliness The Court begins by addressing Defendants’ contention that the motion for preliminary injunction is not timely filed. Defendants indicate in their briefing that they were served with the Complaint and motion for preliminary injunction on May 24, 2012, less than nineteen days before the scheduled execution even though the media had raised its First Amendment concerns with IDOC after the execution of Mr. Paul Rhoades in the fall of 2011 and IDOC published its amended execution protocol in January 2012. Plaintiffs do not give any explanation as to why they waited until the end of May 2012 to file a First Amendment claim that would exist whether or not an execution was scheduled. Moreover, Plaintiffs state they are not seeking to postpone the scheduled execution of Mr. Leavitt by the filing of their motion for preliminary injunction. The Court notes Plaintiffs’ reply briefing was due June 4, 2011, approximately one week before the scheduled execution. The Court finds the motion for an expedited preliminary injunction is not timely filed by Plaintiffs. The primary authority Plaintiffs rely upon to support their request for
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relief is California First Amendment Coalition v. Woodford, 299 F.3d 868 (9th Cir. 2002) (“CFAC IV”). The opinion in CFAC IV was issued in August 2002 and Plaintiffs have waited until less than three weeks before an execution in 2012 and long after the Rhoades execution in the fall of 2011, to bring their § 1983 challenge that clearly existed since the IDOC updated its protocol before the Rhoades execution in the fall of 2011. As discussed below, the Court is not in position based on the record before it to evaluate whether or not substantial evidence exists establishing the IDOC’s acknowledged limits on the public’s access to the viewing of an execution are reasonably related to legitimate penologocial concerns. The Court is very concerned that to the extent Plaintiffs could establish the IDOC’s protocol does need to be changed to protect First Amendment rights of the public, there is insufficient time for the IDOC to amend the policies and practice changes in the protocol without a delay in the scheduled execution. The IDOC’s Standard Operating Protocol 135 (“Protocol 135") is 51 pages in length and sets forth in detail the procedures to be used once a death warrant is issued for an inmate. See Declaration of Jeff Zmuda, Exhibit 1, Dkt. 8-2. Additionally, any changes to Protocol 135 need to follow the due process requirements for amending any IDOC protocol.
In the procedural history of the decision relied upon by Plaintiffs, CFAC IV, the legal issues were originally presented in the form of a motion for preliminary injunction which was granted by the district court and then reversed on appeal. California First Amendment Coalition v. Calderon, 150 F.3d 976 (9th Cir. 1998) (“CFAC III”). In CFAC
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III, the Ninth Circuit remanded the matter back to the district court to determine if plaintiff had presented “substantial evidence” that the procedure being challenged represented an exaggerated response to warden’s security and safety concerns. Id. at 983. The final decision in CFAC IV was issued only after a number of executions were completed, discovery was completed by the parties and the district court held a full evidentiary hearing. In filing this preliminary injunction in late May (less than a month before a scheduled execution), Plaintiffs are attempting to force the Court to rule without a complete record. The Court declines to take this approach to such a serious constitutional question. Moreover, the Supreme Court has continuously upheld there is a strong presumption against eleventh hour motions for injunctive relief related to scheduled executions:
A stay is an equitable remedy, and “[e]quity must take into consideration the State's strong interest in proceeding with its judgment and ... attempt[s] at manipulation.” Ibid. Thus, before granting a stay, a district court must consider not only the likelihood of success on the merits and the relative harms to the parties, but also the extent to which the inmate has delayed unnecessarily in bringing the claim. Given the State's significant interest in enforcing its criminal judgments, see Blodgett, 502 U.S. at 239; McCleskey, 499 U.S., at 491, there is a strong equitable presumption against the grant of a stay where a claim could have been brought at such a time as to allow consideration of the merits without requiring entry of a stay. Nelson v. Campbell, 541 U.S. 637, 649-50 (2004). Since Plaintiffs aver it is not their intent or request to delay the scheduled execution, the Court finds a more prudent course of consideration of the legal issues presented and which are also subject to being raised again in the future, would be to allow
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discovery and a full evidentiary hearing to determine whether IDOC’s execution protocol does or does not satisfy the First Amendment of the Constitution. This would be consistent with the procedure utilized by the Ninth Circuit in the CFAC cases. The legal issues presented are significant, but the Court should not be forced by the late filing of pleadings of having to make decisions of this significance without a full evidentiary hearing. Simply put, the current scheduled execution does not allow adequate time for discovery, an evidentiary hearing, a ruling by this Court and a potential appeal by the nonsuccessful litigant to the Ninth Circuit before the scheduled execution date.
2. Preliminary Injunction Factors Even if Plaintiffs had timely filed this action, the Court finds at this stage in the litigation, Plaintiffs have not carried their burden to support the issuance of a preliminary injunction. The Court will review the four Winter factors.
A. Likelihood of Success on the Merits Plaintiffs correctly cite CFAC IV for the proposition that “the public enjoys a First Amendment right to view executions from the moment the condemned is escorted into the execution chamber, including those ‘initial procedures’ that are inextricably intertwined with the process of putting the condemned inmate to death.” CFAC IV at 877. The Court acknowledges that like the State of California in CFAC IV, the State of Idaho has a historical tradition of allowing the public to witness the process of putting a condemned
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inmate to death. It is true that prior to 1901 the applicable state statute provided for a limited number of witnesses to be present at executions. Since 1901, the applicable Idaho statute has been revised to state that executions will be “closed from public view within the walls of the state penitentiary.” See Statutory Supplement to Def. Opposition to Pls.’ Expedited Motion for Preliminary Injunction, Dkt. 11. However, the undisputed reality as supported by the newspaper accounts of past executions and the specific language in IDOC’s Protocol 135 (which provides for numerous witnesses including the media), is that some portion of the public has historically viewed the execution process in Idaho. Further, this Court agrees with Plaintiffs that society has a critical interest in having at least some members of the public view the government’s implementation of a death warrant.
Specifically, the media’s access to the execution process is limited to four seats as defined in Protocol 135. Plaintiffs do not contest the limited number of witness seats assigned to the media under the existing protocol. Rather, the Plaintiffs argue the process of the execution should be visible to all allowed witnesses when the inmate first enters the execution chambers instead of the current policy of allowing witnesses to view the execution after the inmate has been prepped for execution by being strapped to a gurney and two intravenous catheters placed by medical personnel.
The Plaintiffs’ right to view an execution is no greater than the right of any other member of the public to view an execution. Pell v. Procunier, 417 U.S. 817, 834 (1974).
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Having acknowledged there is a First Amendment right to view an execution from the time an inmate enters the execution chamber, the Court must determine if the limits placed by IDOC to restrict the public’s view of the execution until the preliminary procedures of restraint and placement of IVs is concluded by medical personnel are reasonably related to legitimate penological objections or whether the limits represent an exaggerated response to prison officials’ concerns. Turner v. Safley, 482 U.S. 78, 87 (1987). The Turner test requires the Court to evaluate four factors:
(1) whether there is “a ‘valid, rational connection’ between the prison regulation and the legitimate governmental interest put forward to justify it”; (2) “whether there are alternative means of exercising the right that remain open to prison inmates”; (3) what “impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources, generally” and (4) whether there exist “ready alternatives . . . that fully accommodate [] the prisoner’s rights at de minimis cost to valid penological interests.” CFAC IV at 878 (citing Turner, 482 U.S. at 89-91). In the record before the Court, Defendants have submitted the declarations of Jeff Zmuda, the IDOC Deputy Chief of the Bureau of Prisons (Dkt. 8-1) and Randy Blades, the Warden of the Idaho Maximum Security Institution which carries out the execution of death warrants (Dkt. 8-3). Defendants argue there are four legitimate penological objectives that allow IDOC to limit the public’s right to witness the execution from the time the inmate enters the executions chamber: (1) to preserve an inmate’s right to privacy during as much as possible of his final conscious moments; (2) to consider how an extended witness period may affect other death row inmates; (3) to shield the family
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and friends of the condemned inmate from the public suffering that the inmate might incur during extended witness periods or delays in the execution process; and (4) to shield the members of the medical team from public exposure as they insert the IV catheters and in their general participation in the execution process.
The only evidence submitted by Plaintiffs related to the penological objectives of IDOC is the Affidavit of Betsy Russell, Dkt. 15, which sets forth the public’s historical participation in viewing executions and the scope of witnesses’ accounts of prior executions. The Plaintiffs challenge, by way of argument, not evidence, that Defendants’ concerns are not legitimate penological concerns.
It is the Plaintiffs’ burden to present the Court with “substantial evidence” that Protocol 135 represents an exaggerated response to IDOC’s concerns for security and safety. CFAC III at 983. Plaintiffs argue the concerns of Defendants are unsubstantiated but they do not provide any rebuttal affidavits to the declarations of experienced prison officials. While the Court agrees that Defendants must substantiate their concerns with actual evidence of retaliation against medical personnel, inability to get medical personnel to participate on the medical team for an execution, the impact of extending the viewing by witnesses on other inmates or prison safety in general, Plaintiffs have not provided any evidence to counter declarations of IDOC personnel.
The Deputy Chief of the Bureau of Prisons, Jeff Zmuda states in paragraph 9 of his declaration, Dkt. 8-1, that if official witnesses are allowed to see the inmate from the
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point he enters the execution chamber, “it will greatly impair IDOC’s ability to recruit and retain Medical Team members and will have a chilling effect on the Medical Team members’ willingness to serve on the Medical Team.” Mr. Zmuda also states in paragraph 8 that “confidentiality and anonymity is of paramount concern to the Medical Team members.” While it is true the Ninth Circuit in CFAC IV downplayed the concern of execution team members based on the history in California, it is unclear based on the record before the Court if the IDOC concerns raised are speculative or contradicted by the limited history regarding executions in Idaho. See CFAC IV at 882. Moreover, there has been no development in the record of alternative means available for IDOC to address the public’s interest and security and safety concerns. Finally, this Court is required to give deference to prison officials’ opinions regarding security and safety concerns. Bell v. Wolfish, 441 U.S. 520, 547 (1979). The Supreme Court has cautioned the federal courts not to interfere with the day-to-day operations of the prisons, especially those things related to security, a task which is best left to prison officials who have particular experience in dealing with prisons and prisoners. See Turner v. Safley, 482 U.S. 78, 89 (1987) (First Amendment claims).
In reviewing the record to date, the Court has significant concerns regarding the penological objectives submitted by the Defendants and whether such concerns outweigh the First Amendment rights of the public, whether the concerns raised by the Defendants are substantiated by actual evidence, whether sufficient alternatives exist that could be
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implemented such as requiring the medical personnel involved to wear surgical garb including gowns, masks and eye protection to help shield their identity, whether there is a First Amendment interest in allowing the public to witness the preliminary execution procedures to ensure the execution is being performed in a humane manner, whether there is any evidence of an impact on other inmates that rises to the level of a safety or security issue for IDOC, whether the concerns submitted by IDOC are valid “security and safety” concerns, and whether the consideration of emotional well being of the condemned inmate and his family should enter into the balance.
Society has a strong interest in having the most serious of criminal penalties implemented in a professional, humane manner with the rights of privacy of all involved considered and respected. Prison officials have a legitimate interest in conducting an execution such that it does not impact the safety and security of prison officials and other inmates. IDOC’s current protocol to effectuate a death warrant is lethal injection. Plaintiffs have presented strong arguments based on binding Ninth Circuit case law that IDOC’s objectives may not justify restricting the viewing of the execution process until after the inmate has been restrained and IVs are placed. However, the Court cannot find based on the current record, that Plaintiffs have provided “substantial evidence” that IDOC’s Protocol 135 is an “exaggerated response” to the security concerns presented.
The Court agrees that Plaintiffs may ultimately prevail on their challenges that the Defendants penological objectives do not satisfy the requirements of Turner or that
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alternative practices cannot be included in the protocol to satisfy the public’s interest and penological security and safety concerns. But the record needs to be more fully developed and in all fairness IDOC should be provided the opportunity to provide detailed evidence to support the conclusions of experienced IDOC personnel set forth in the declarations that extending the portion of the execution that is viewed by witnesses will have a detrimental effect on the safety and security of the inmates and prison officials.
Even assuming that without an evidentiary hearing or any evidence from Plaintiffs, the Court could find the Plaintiffs have presented a likelihood of success on the merits of their legal claim, the Court would still deny the request for a preliminary injunction based on the other Winter factors.
B. Irreparable Harm It is Plaintiffs’ burden to establish that irreparable harm is likely, not just possible, if the injunction is not granted. The Court finds irreparable harm is not likely if the preliminary injunction is not granted. Plaintiffs specifically allege they do not want the scheduled execution delayed due to their lawsuit. The witnesses still will be allowed to see the execution process from the time after the inmate is restrained and IVs are placed. Under the current protocol, witnesses will be allowed to view the condemned inmate as he receives the lethal drug. Additionally, there will most likely be other executions in the
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future and if Plaintiffs are successful after a full evidentiary hearing, the protocol can be
changed without any harm to Plaintiffs, the public or Defendants.
C. Balance of Equities
The Court must determine if the balance of equities tips in Plaintiffs’ favor. This
is a close call for the Court as the Court finds Plaintiffs’ legal arguments are strong.
However, in balancing the equities, the Court finds it is simply too late to hold an evidentiary hearing prior to the scheduled execution date.1 Also, it is too late to
incorporate any necessary changes that may be required in the protocol if Plaintiffs are
successful on their claims. Declaration of Jeff Zmuda, paragraph 6, Dkt. 8-1: “Any
deviation of SOP 135 with respect to witnesses being present earlier in the execution
1Plaintiffs ignore how heavily courts have emphasized the need for challenges related to executions to be brought in a timely manner, so as not to delay the scheduled execution. Here, there is a high likelihood that opening the entire execution to the public will delay the execution. In these cases, the condemned had a great interest in the action (preserving his own life or preventing serious pain during execution), and yet, the courts concluded a stay was inappropriate where they were dilatory in bringing the action because of the strong public interest in finalizing criminal judgments. See Nooner v. Norris, 491 F.3d 804 (8th Cir. 2007) (“Once a state inmate’s sentence of death has become final on direct review in the state’s courts, there is no impediment to filing a § 1983 action challenging the constitutionality of a state’s lethal injection protocol as long as lethal injection is the established method of execution [and] the protocol is known.”) Id. at 808; Smith v. Johnson, 440 F.3d 262, 263 (5th Cir. 2006) (“[The condemned] is not entitled to equitable relief due to his dilatory filing, noting that the there was no excuse for the delay”). By analogy, the Court finds there was not excuse for Plaintiffs waiting to file this lawsuit until the end of May and such dilatory tactics do not justify expedited injunctive relief.
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process would not only require a modification of SOP 125, but would also require a change in the already established training schedule and format.” Further any changes to the protocol may delay the execution and open the door to further challenges by the condemned that the protocol has been changed.
Finally, it is uncertain if medical team personnel would decide not to participate on the execution team if the protocol is changed as requested by Plaintiffs. Therefore, the Court finds the balance of equities tips in favor of the Defendants and proceeding with the scheduled execution.
D. Public Interest Plaintiffs must establish that an injunction is in the public’s interest. The public has an interest in witnessing the implementation of a death warrant. As a society, we cannot have the death penalty carried out behind closed doors with only prison officials as witnesses. In this case, Protocol 135 provides for numerous witnesses including four media witnesses to the view process wherein the lethal drug is administered. Plaintiff’s interest in allowing the public to more fully view the execution process does not outweigh the public’s interest in proceeding with a scheduled execution. In this case, the condemned inmate, Mr. Leavitt, was originally sentenced to death in 1985. The public has a significant interest in enforcing its criminal judgments. Nelson v. Campbell, 541 U.S. 637, 649050 (2004). The Court finds the limited First Amendment rights relating to
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the portion of the execution that is viewed by witnesses and which has not been fully litigated does not trump the competing interest of the public to enforce a valid death warrant scheduled within a week.
3. Conclusion Based on the untimeliness of the motion for a preliminary injunction and Plaintiffs’ failure to carry their burden for injunctive relief at this stage of the litigation, the Court finds the motion for a preliminary injunction must be denied. The Court acknowledges Plaintiffs have presented a strong claim on the merits but the other equitable factors in the preliminary injunction test weigh against granting the relief in this context. The claim was brought very late and if granted, it would undoubtedly change the execution protocol and could disrupt the scheduled execution. The public has an interest in viewing the whole execution process, but it also has an interest in seeing the judgment enforced without disruption. The harm from delaying this matter to allow both sides to present their evidence so the credibility of the evidence and testimony can be weighed by the Court is not necessarily irreparable because there most likely be other executions to view in the future so the requested relief may still apply. Finally, the public and the media are allowed under the current protocol to view the execution process when the lethal drug is administered to the condemned inmate and until the matter can be fully litigated, the protocol should remain unchanged.
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Case 1:12-cv-00255-EJL Document 19 Filed 06/05/12 Page 20 of 20 ORDER
IT IS ORDERED: 1. Plaintiffs’ Expedited Motion for Preliminary Injunction (Dkt. 2) is DENIED. 2. Plaintiffs’ Motion to Take Judicial Review (Dkt. 16) is irrelevant to the determination on the motion for preliminary injunctive relief. The motion and Defendants’ objection to said motion will be taken up in the normal course of this litigation. 3. The parties shall submit a joint litigation plan for the Court’s consideration to allow for discovery and a full evidentiary hearing on the request for permanent injunctive relief.
DATED: June 5, 2012
Honorable Edward J. Lodge U. S. District Judge
ORDER - 20

 
 Case 1:12-cv-00255-EJL Document 32 Filed 07/10/12 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

THE ASSOCIATED PRESS, a New York )

corporation; IDAHO STATESMAN

)

PUBLISHING, LLC, a Delaware limited )

liability company d/b/a The Idaho

)

Statesman; LEE ENTERPRISES,

)

INCORPORATED, a Delaware corporation )

d/b/a The Times-News; THE IDAHO

)

PRESS CLUB, INC., an Idaho corporation; )

PIONEER NEWSPAPERS, INC., a Nevada )

corporation d/b/a Idaho Press-Tribune, )

Idaho State Journal, Standard Journal,

)

Teton Valley News, The News-Examiner, )

The Preston Citizen, and Messenger Index; )

TPC HOLDINGS, INC., an Idaho

)

corporation, d/b/a Lewiston Tribune and )

Moscow-Pullman Daily News; BAR BAR )

INC., an Idaho corporation d/b/a Boise )

Weekly; COWLES PUBLISHING

)

COMPANY, a Washington corporation, )

d/b/a The Spokesman Review; and

)

IDAHOANS FOR OPENNESS IN

)

GOVERNMENT, INC., an Idaho

)

non-profit corporation;

)

)

Plaintiffs,

)

)

v.

)

)

C.L. (BUTCH) OTTER, in his official

)

capacity as the Governor of the State of )

Idaho; ROBIN SANDY, HOWARD G. )

“J.R.” VAN TASSEL, and JAY L.

)

NIELSEN in their official capacity as the )

Idaho Board of Correction; BRENT D. )

REINKE, in his official capacity as the )

Director of the Idaho Department of

)

Correction; and KEVIN KEMPF in his )

official capacity as Division Chief of

)

Operations of the Idaho Department of )

Correction,

)

)

Defendants.

)

Case No. 1:12-cv-00255-EJL PERMANENT INJUNCTION

PERMANENT INJUNCTION - 1

Case 1:12-cv-00255-EJL Document 32 Filed 07/10/12 Page 2 of 2
The Plaintiffs having filed its verified com plaint for declaratory judgment and injunctive relief (Dkt. 1), and the Plaintiffs' Expedited Motion for Preliminary Injunction having been duly noticed and heard by this Court which was furthe r heard by the Ninth Circuit Cour t of Appeals (opinion and m andate issued on J une 8, 2012, (D kts. 23 and 25), and Plaintiffs’ Motion for Preliminary Injunction now having been granted [Order(Dtk. 28)]. The parties hereto have entered into a Stipulation which requests that a permanent injunction be entered by this Court (Dkt. 31).
NOW, THEREFORE, this Court ADOPTS AND APPROVES the Stipulation of the parties (Dkt. 31) enters the following permanent injunction:
The Idaho Departm ent of Corrections, and r esponsible parties associated therewith, are hereby ordered to modify their procedures to allow the witnesses to the execution of a condemned inmate to observe the entire execution from the moment the inmate enters the execution chamber through, to and including, the time the inmate is declared dead.
So Ordered and this case will be deemed closed. DATED: July 10, 2012
Honorable Edward J. Lodge U. S. District Judge
PERMANENT INJUNCTION - 2

 
 FOR PUBLICATION UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

FILED
JUN 08 2012
MuO.LsL. YCOCU. RDTWOYFE"".'Pt ECALLESRK

THE ASSOCIATED PRESS, a New York corporation; IDAHO STATESMAN PUBLISHING, LLC, a Delaware limited liability company doing business as The Idaho Statesman; LEE ENTERPRISES, INCORPORATED, a Delaware corporation doing business as The TimesNews; THE IDAHO PRESS CLUB, INC., an Idaho corporation; PIONEER NEWSPAPERS, INC., a Nevada corporation doing business as Idaho PressTribune, Idaho State Journal, Standard Journal, Teton Valley News, The NewsExaminer, The Preston Citizen, and Messenger Index; TPC HOLDINGS, INC., an Idaho corporation doing business as Lewiston Tribune and Moscow-Pullman Daily News; BAR BAR INC., an Idaho corporation doing business as Boise Weekly; COWLES PUBLISHING COMPANY, a Washington corporation doing business as The Spokesman-Review; IDAHOANS FOR OPENNESS IN GOVERNMENT, INC., an Idaho nonprofit corporation,

No. 12-35456 D.C. No.1: 12-cv-00255-EJL
OPINION

Plaintiffs - Appellants,

v.

C.L. "BUTCH" OTTER, in his official capacity as the Governor of the State of

Idaho; ROBIN SANDY, in her official capacity as Chamnan of the Idaho Board of Correction; HOWARD G. "J.R." VAN TASSEL, in his official capacity as Secretary of the Idaho Board of Correction; JAY NIELSEN, in his official capacity as Vice Chairman of the Idaho Board of Correction; BRENT REINKE, in his official capacity as the Director of the Idaho Department of Correction; KEVIN KEMPF, in his official capacity as Division Chief of Operations of the Idaho Department of Correction,
Defendants - Appellees.
Appeal from the United States District Court for the District ofIdaho
Edward J. Lodge, District Judge, Presiding
Argued and Submitted June 7, 2012 Pasadena, California
Before: KOZINSKI, Chief Judge, REINHARDT and BERZON, Circuit Judges.
Opinion by Judge REINHARDT:
Nearly a decade ago, we held in the clearest possible terms that "the public
enjoys a First Amendment right to view executions from the moment the condenmed
is escorted into the execution chamber, including those 'initial procedures' that are
inextricably intertwined with the process ofputting the condemned inmate to death."
California First Amendment Coalition v. Woodford, 299 F.3d 868, 877 (9th Cir.
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2002). The State of Idaho has had ample opportunity for the past decade to adopt an execution procedure that reflects this settled law. It can hardly complain that it has been unaware of the binding precedent, since the media coalition specifically cited California First Amendment Coalition in asking the State to alter its execution procedure prior to the November 2011 execution of Paul Rhoades. The State has nonetheless failed to bring its procedure into compliance with the law---either in the days prior to the Rhoades execution or in the succeeding months, when it met with the media coalition to discuss the matter. The State has persisted in its intransigence even after we suggested at oral argument that a voluntary amendment (like the one that Arizona recently adopted) might avert the need for an injunction. The State's complaints about the last-minute nature ofthis litigation ignore this history. We fault the State, not the media plaintiffs, for our need to consider this question several days before an execution: the State has missed opportunity after opportunity to bring its execution procedures into compliance with the clear law of this Circuit.
We reverse the district court's denial of a preliminary injunction and remand for the entry of such an injunction forthwith, and in any event prior to the impending execution of Richard Leavitt.
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I The dispute here is narrow. Under its current execution procedure, the State would allow witnesses to view the final portion ofLeavitt' s execution, beginning with the reading ofthe death warrant and concluding with the pronouncement ofdeath. As in the Rhoades execution, however, the State does not intend to allow witnesses to view the fIrst part ofthe procedure, beginning with Leavitt's entry into the execution chamber, through the insertion of intravenous lines into his body. A coalition of media corporations fIled this action under 42 U.S.C. § 1983 shortly after the issuance of the warrant for Leavitt's execution. The plaintiffs assert that, as surrogates for the public, they have a right to witness all stages of the executions conducted by the State ofIdaho, rather than just the [mal portion, and that the State's refusal to allow such access violates the First Amendment. They seek a preliminary injunction on the basis that, without such relief, they will be irreparably damaged by the denial of their right to view Leavitt's execution in its entirety. The State asserts what it considers to be four legitimate penological objectives that, in its view, override the First Amendment right ofpublic access to executions in their entirety. First, it says, it wishes to preserve the condemnedprisoner's privacy and dignity. Second, it wishes to respect the sensibilities of the condemned prisoner's family. Third, it wishes to do the same for his fellow death-row inmates. Fourth, it
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wishes to protect the anonymity ofthe members ofthe medical team who participate in the execution. Under California First Amendment Coalition, the State can prevail if the limitation of the plaintiffs' First Amendment right is "reasonably related to legitimate penological objectives," rather than "an exaggerated response to those concerns," Turner v. Safley, 482 U.S. 78, 87 (1987) (internal quotation marks omitted). See 299 F.3d at 879 (adopting the Turner standard).
"A plaintiff seeking a preliminary injunction must establish" four elements: "that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence ofpreliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest." Winter v. Natural Res. Def Council, Inc., 555 U.S. 7, 20 (2008). "We review a district court's decision to grant or deny a preliminary injunction for abuse of discretion. In deciding whether the district court has abused its discretion, we employ a two-part test: fIrst, we 'determine de novo whether the trial court identifIed the correct legal rule to apply to the reliefrequested'; second, we determine 'ifthe district court's application ofthe correct legal standard was ... illogical, ... implausible, or ... without support in inferences that may be drawn from the facts in the record.' A decision based on an erroneous legal standard or a clearly erroneous fInding of fact amounts to an abuse of discretion." Pimentel v. Dreyfus, 670 F.3d 1096, 1105 (9th Cir. 2012) (citations omitted).
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II We hold that the district court abused its discretion with respect to each ofthe four elements that the plaintiffs must establish.
A First, the plaintiffs are quite likely to succeed on the merits of their First Amendment claim. As discussed above, California FirstAmendment Coalition makes clear that the First Amendment protects the public's right to witness all phases of Leavitt's execution, including the portion that the State now shields from view. Although the State argued below that California First Amendment Coalition's interpretation of the First Amendment was premised in part on the history of public executions in California-a history that, the State asserted, differed from Idaho's-the district court rejected this argument, and the State does not raise it on appeal. The only question as to the merits, then, is whether the State has asserted legitimate penological interests sufficient to overcome the First Amendment right of public access. See California First Amendment Coalition, 299 F.3d at 879 (adopting as the relevant inquiry "whether a prison regulation that burdens fundamental rights is reasonably related to legitimate penological objectives, or whether it represents an exaggerated response to those concerns" (internal quotation marks omitted)).
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Here, the plaintiffs showed that they are likely to succeed on the merits simply by pointing to ourprior opinion in California FirstAmendment Coalition-an opinion that appears squarely to govern this case. To the extent that the State's asserted interests in protecting the dignity ofcondemned prisoners and the sensibilities oftheir family and fellow inmates qualify as legitimate penological concerns in the first place-a matter about which we harbor significant doubt, see, e.g., Procunier v. Martinez, 416 U.S. 396, 413 (1974) (recognizing the legitimate "governmental interests of security, order, and rehabilitation"), overruled on other grounds by Thornburgh v. Abbott, 490 U.S. 401 (1989}-the State has failed to explain why the modest expansion ofwitness access to include the insertion ofintravenous lines would meaningfully affect them. The State of Idaho already offends the dignity of condenmed inmates and the sensibilities of their families and fellow inmates by allowing strangers to watch as they are put to death. It strains credulity for the State to assert that these interests will be offended to a meaningfully greater degree when witnesses are permitted to watch the insertion ofintravenous lines than when they are simply allowed to watch the inmates die. The State also has not explained why these interests were not equally at stake in California, although our opinion in California First Amendment Coalition did not explicitly consider them.
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The State's interest in preserving the anonymity ofmedical team members who participate in the execution is more substantial. We considered this interest at length in California First Amendment Coalition, however, characterizing California's "fear that execution team members [would] be publicly identified and retaliated against" as "an overreaction, supported only by questionable speculation," 299 F.3d at 880, and upholding the factual finding "that' [t]he use of surgical garb is a practical alternative to restricting access to witness lethal injection executions in order to conceal the identity ofsuch execution staffshould security concerns warrant such concealment,'" id. at 884. The State has made no serious attempt to explain why medical team members in Idaho might be less likely to remain anonymous than those in California or why any risks that they might face upon public exposure would be greater. At oral argument, the State's counsel speculated that because the populations ofIdaho or of the metropolitan area where its executions take place are smaller than those of California, medical team members in Idaho would be more likely to be identified on the basis of their appearance (even when shielded by surgical garb) than those in Califomia. This is pure speculation; the State has presented no evidence to support it.
Nor has the State provided any support whatsoever for its speculation that it may be unable to recruit and retain medical team members to participate in executions. The declaration of JeffZmuda, Deputy Chief of the Idaho Bureau of Prisons, makes
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only a bare assertion to that effect. Given that there are only five members of the current medical team, it would have been a simple matter for the State to submit evidence, such as a declaration filed under seal from a team member or a declaration from an official who had spoken with the team members, that anyone of those members was even considering withdrawing from participation in either Leavitt's execution or any future execution. At oral argument, we invited the State to produce, even at this late date, any such evidence that it might be able to obtain. We conclude from the State's failure to do so that no such evidence exists.
The district court was correct to have "significant concerns" regarding the State's arguments. Dist. Ct. Order at 14-15. The court abused its discretion, however, by failing to recognize, in light of these concerns, that the plaintiffs are likely to succeed in showing that the State's limitation on witness access is not "reasonably related to legitimate penological objectives" but rather "represents an exaggerated response to those concerns," Turner, 482 U.S. at 87 (internal quotation marks omitted).
B The district court also held that the plaintiffs had failed to show that they would suffer irreparable harm in the absence of an injunction because ''witnesses still [would] be allowed to see the execution process from the time after the inmate is
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restrained and IVs are placed" and because ''there will most likely be other executions in the future." Dist. Ct. Order at 16-17. Both rationales are contrary to law. The first ignores our explicit holding in California First Amendment Coalition that the First Amendment protects the right to witness executions in their entirety. To say that the plaintiffs will not suffer harm because they will be able to witness part of Leavitt's execution is like saying that the public would not suffer harm were it allowed to read only a portion ofthe New York Times. The second rationale ignores the rule that "[t]he loss ofFirst Amendment freedoms, for even minimal periods oftime, unquestionably constitutes irreparable injury." Elrod v. Burns, 427 U.S. 347, 373 (1976). That the plaintiffs may be able to observe future executions in Idaho does not mean that they are unharmed by the denial oftheir right to observe this execution. These legal errors constituted an abuse ofthe district court's discretion. Pimentel, 670 F.3d at 1105. The plaintiffs will suffer irreparable injury in the absence of a preliminary injunction.
C Our balancing ofthe equities-like the district court's-turns on whether there is any realistic possibility that a preliminary injunction will delay Leavitt's execution. We reject each of the three premises on which the district court believed that such a delay could occur. First, there is minimal chance that the injunction will lead to a successful stay application by Leavitt. Not only is the prospect ofany such application
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speculative, but if filed, it would likely fail. Second, in light of the minimal changes that an injunction might require and the State's failure to specify the nature of any such change, we have trouble imagining why an alteration to the training procedures would be necessary. Even ifsuch a change were required, the State has not explained why it would delay the execution. Third, as noted earlier, the State has failed to do more than speculate that a member of the medical team might decline to participate in Leavitt's execution, and it advised us at oral argument that it had made no attempt to contact any member of the team in order to inquire whether there is any basis for its speculation. We therefore see no realistic possibility that a preliminary injunction requiring the State to comply with California First Amendment Coalition will delay Leavitt's execution.
D For the same reason, we have no doubt that the entry ofa preliminary injunction promotes the public interest. "Courts considering requests for preliminary injunctions have consistently recognized the significant public interest in upholding First Amendment principles." Sammartano v. First Judicial Dist. Court, 303 F.3d 959, 974 (9th Cir. 2002). The district court relied instead on the public interest in the timely enforcement ofcriminaljudgments. Although we recognize that interest as legitimate, it lacks any weight in light of our conclusion that no delay will occur.
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III We reverse the district court's denial of a preliminary injunction and remand for the entry of an order requiring the State to allow witnesses to observe Leavitt's entire execution, "from the moment [he] enters the execution chamber through, to and including, the time [he] is declared dead." California First Amendment Coalition, 299 F.3d at 886 (internal quotation marks omitted). The mandate shall issue forthwith. REVERSED and REMANDED.
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COUNSEL LISTING Charles A. Brown, Lewiston, Idaho, for the Plaintiffs-Appellants. Lawrence G. Wasden, Attorney General; Steven L. Olsen, Chief of Civil Litigation; Michael S. Gilmore, Deputy Attorney General; Mark A. Kubinski, Lead Deputy Attorney General, Idaho Department of Correction; Thomas C. Perry, Counsel to the Governor; Boise, Idaho; for the Defendants-Appellees.
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 Case 1:12-cv-255 Document <docnum> Filed <datefiled> Page 1 of 6
MEDIATION,TERMED
U.S. District Court District of Idaho (LIVE Database)Version 5.1.1 (Boise − Southern)
CIVIL DOCKET FOR CASE #: 1:12−cv−00255−EJL

The Associated Press et al v. Otter et al Assigned to: Judge Edward J. Lodge Referred to: Judge Candy W. Dale (Settlement) Case in other court: Ninth Circuit Court of Appeals, 12−35456 Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 05/22/2012 Date Terminated: 07/10/2012 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

The Associated Press a New York corporation

represented by Charles A Brown PO Box 1225 Lewiston, ID 83501 (208) 746−9947 Fax: 1−208−746−5886 Email: CharlesABrown@cableone.net ATTORNEY TO BE NOTICED

Plaintiff
Idaho Statesman Publishing, LLC a Delaware limited liability company doing business as The Idaho Statesman

represented by Charles A Brown (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Lee Enterprises, Incorporated a Delaware corporation doing business as The Times−News

represented by Charles A Brown (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
The Idaho Press Club, Inc. an Idaho corporation

represented by Charles A Brown (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Pioneer Newspapers, Inc. a Nevada corporation doing business as Idaho Press−Tribune, Idaho State Journal, Standard Journal, Teton Valley News, The News−Examiner, The Preston Citizen, and Messenger Index

represented by Charles A Brown (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
TPC Holdings, Inc. an Idaho corporation doing business as Lewiston Tribune and Moscow−Pullman Daily News

represented by Charles A Brown (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Bar Bar Inc. an Idaho corporation doing business as Boise Weekly

represented by Charles A Brown (See above for address) ATTORNEY TO BE NOTICED

Case 1:12-cv-255 Document <docnum> Filed <datefiled> Page 2 of 6

Plaintiff
Cowles Publishing Company a Washington corporation doing business as The Spokesman Review

represented by Charles A Brown (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Idahoans for Openness in Government, Inc. an Idaho non−profit corporation

represented by Charles A Brown (See above for address) ATTORNEY TO BE NOTICED

V. Defendant C.L. (Butch) Otter in his official capacity as the Governor of the State of Idaho
Defendant Robin Sandy in her official capacity as the Idaho Board of Correction
Defendant Howard G. "J.R.qVan Tassel in his official capacity as the Idaho Board of Correction
Defendant Jay L. Nielsen in his official capacity as the Idaho Board of Correction

represented by Michael S Gilmore OFFICE OF ATTORNEY GENERAL Statehouse Rm 210 Boise, ID 83720 (208) 334−2400 Fax: (208) 854−8073 Email: mike.gilmore@ag.idaho.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Mark Alan Kubinski IDAHO DEPT OF CORRECTION 1299 N Orchard #110 Boise, ID 83706 (208) 658−2097 Fax: (208) 327−7485 Email: mkubinsk@idoc.idaho.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael S Gilmore (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Mark Alan Kubinski (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael S Gilmore (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Mark Alan Kubinski (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael S Gilmore (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case 1:12-cv-255 Document <docnum> Filed <datefiled> Page 3 of 6

Defendant Brent D. Reinke in his official capacity as the Director of the Idaho Department of Correction
Defendant Kevin Kempf in his official capacity as Division Chief of Operations of the Idaho Department of Correction

represented by Mark Alan Kubinski (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael S Gilmore (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Mark Alan Kubinski (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael S Gilmore (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 05/22/2012
05/22/2012
05/23/2012 05/23/2012 05/23/2012 05/23/2012 05/24/2012

# Docket Text
1 COMPLAINT for Declaratory Judgment and Injunctive Relief against All Defendants ( Filing fee $ 350 receipt number 0976−886560.), filed by All Plaintiffs. (Attachments: # 1 Exhibit Exhibits A, B, C, D, E, and F to Complaint, # 2 Cover Sheet, # 3 Summons C.L. (Butch) Otter, # 4 Summons Robin Sandy, # 5 Summons Howard G. "J.R." Van Tassel, # 6 Summons Jay L. Nielsen, # 7 Summons Brent D. Reinke, # 8 Summons Kevin Kempf)(Brown, Charles)
2 MOTION to Expedite Plaintiffs' Expedited Motion for Preliminary Injunction Charles A Brown appearing for Plaintiffs Bar Bar Inc., Cowles Publishing Company, Idaho Statesman Publishing, LLC, Idahoans for Openness in Government, Inc., Lee Enterprises, Incorporated, Pioneer Newspapers, Inc., TPC Holdings, Inc., The Associated Press, The Idaho Press Club, Inc.. Responses due by 6/15/2012 (Attachments: # 1 Memorandum in Support of Plaintiff's Expedited Motion for Preliminary Injunction)(Brown, Charles)
3 ORDER OF RECUSAL. Judge Ronald E Bush recused. It is therefore HEREBY REQUESTED that the above−captioned case be reassigned. Signed by Judge Ronald E Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (krb)
DOCKET ENTRY NOTICE of Case Number Change, Case reassigned to Judge Edward J. Lodge for all further proceedings. Please use this case number on all future pleadings, 1:12−cv−00255−EJL, re: 3 ORDER OF RECUSAL (krb)
4 Summons Issued as to Kevin Kempf, Jay L. Nielsen, C.L. (Butch) Otter, Brent D. Reinke, Robin Sandy, Howard G. "J.R.qVan Tassel. (Print attached Summons for service.) (Attachments: # 1 Summons issued, # 2 Summons issued, # 3 Summons issued, # 4 Summons issued, # 5 Summons issued)(dks)
NOTICE: Pursuant to FRCP 7.1 you are required to file a Corporate Disclosure Statement with the Clerk's Office. You can do this by choosing the category Other Documents, then select Corporate Disclosure Statement. (dks)
5 ORDER granting 2 Motion to Expedite the motion for preliminary injunction; Response ddl 5:00 p.m. on 5/29/12; Reply ddl 5:00 p.m. on 6/4/12. This matter is referred for a court ordered mediation with Chief United States Magistrate Judge Candy W. Dale on or before June 1, 2012.. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (dks)

Case 1:12-cv-255 Document <docnum> Filed <datefiled> Page 4 of 6

05/25/2012 05/25/2012 05/29/2012 05/30/2012 05/30/2012 05/30/2012 05/30/2012 05/31/2012 06/04/2012
06/04/2012
06/04/2012

6 NOTICE of Appearance by Michael S Gilmore on behalf of All Defendants (Gilmore, Michael)
7 ORDER, (A Judicially Supervised Mediation Conference set for 5/31/2012 09:30 AM in Boise − Courtroom 6 before Judge Candy W Dale.). Signed by Judge Candy W Dale. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (dks)
8 MEMORANDUM in Opposition re 2 MOTION to Expedite Plaintiffs' Expedited Motion for Preliminary Injunction filed by Kevin Kempf, Jay L. Nielsen, C.L. (Butch) Otter, Brent D. Reinke, Robin Sandy, Howard G. "J.R.qVan Tassel. Replies due by 6/15/2012. (Attachments: # 1 Declaration of Zmuda, # 2 Exhibit Exhibit 1 to Zmuda Declaration, # 3 Declaration of Blades)(Gilmore, Michael)
9 SUMMONS Returned Executed by The Associated Press. All Defendants. (Attachments: # 1 Affidavit of Service − Sandy, # 2 Affidavit of Service − Van Tassel, # 3 Affidavit of Service − Nielsen, # 4 Affidavit of Service − Reinke, # 5 Affidavit of Service − Kempf)(Brown, Charles)
10 Corporate Disclosure Statement by Bar Bar Inc., Cowles Publishing Company, Idaho Statesman Publishing, LLC, Idahoans for Openness in Government, Inc., Lee Enterprises, Incorporated, Pioneer Newspapers, Inc., TPC Holdings, Inc., The Associated Press, The Idaho Press Club, Inc. identifying Corporate Parent The McClatchy Company for Idaho Statesman Publishing, LLC.. (Brown, Charles)
11 SUPPLEMENT by Defendants Kevin Kempf, Jay L. Nielsen, C.L. (Butch) Otter, Brent D. Reinke, Robin Sandy, Howard G. "J.R.qVan Tassel re 8 Memorandum in Opposition to Motion, . (Gilmore, Michael) Modified on 5/31/2012 to create a relationship to Doc #2 (dks).
12 NOTICE of Appearance by Mark A Kubinski on behalf of Kevin Kempf, Jay L. Nielsen, Brent D. Reinke, Robin Sandy, Howard G. "J.R.qVan Tassel (Kubinski, Mark)
13 Docket Text Minute Entry for proceedings held before Judge Candy W Dale: Judicially Supervised Mediation Conference held on 5/31/2012. Counsel/parties appeared and negotiated in good faith under the Court's direction and supervision. No resolution reached. Time in Court 4 hours. (Hearing not recorded.) (ah)
14 REPLY to Response to Motion re 2 MOTION to Expedite Plaintiffs' Expedited Motion for Preliminary Injunction PLAINTIFFS MOTION TO FILE OVER−LENGTH RESPONSE TO DEFENDANTS OPPOSITION [DKT8] TO EXPEDITED MOTION FOR PRELIMINARY INJUNCTION [DKT2] &STATUTORY SUPPLEMENT [DKT 11] filed by Bar Bar Inc., Cowles Publishing Company, Idaho Statesman Publishing, LLC, Idahoans for Openness in Government, Inc., Lee Enterprises, Incorporated, Pioneer Newspapers, Inc., TPC Holdings, Inc., The Associated Press, The Idaho Press Club, Inc.. (Attachments: # 1 Part 2 of Plaintiffs' Response)(Brown, Charles)
15 REPLY to Response to Motion re 2 MOTION to Expedite Plaintiffs' Expedited Motion for Preliminary Injunction Affidavit of Betsy Russell filed by Bar Bar Inc., Cowles Publishing Company, Idaho Statesman Publishing, LLC, Idahoans for Openness in Government, Inc., Lee Enterprises, Incorporated, Pioneer Newspapers, Inc., TPC Holdings, Inc., The Associated Press, The Idaho Press Club, Inc.. (Attachments: # 1 James A. Ellington − Hanged, # 2 Ed, Rice Dies on Scaffold, # 3 Connors Meets Death Bravely, # 4 Bond Pays the Death Penalty for Murder of Charles Daly, # 5 To Be Hanged By Neck Until Dead, # 6 Murderer Seward Goes to His Death Without a Tremor, # 7 Jurko is Hanged at State Prison)(Brown, Charles)
16 MOTION to Take Judicial Notice Charles A Brown appearing for Plaintiffs Bar Bar Inc., Cowles Publishing Company, Idaho Statesman Publishing, LLC, Idahoans for Openness in Government, Inc., Lee Enterprises, Incorporated, Pioneer Newspapers, Inc., TPC Holdings, Inc., The Associated Press, The Idaho Press Club, Inc.. Responses due by 6/28/2012 (Attachments: # 1 PLAINTIFFS MOTION TO FILE OVER−LENGTH RESPONSE TO DEFENDANTS OPPOSITION [DKT8] TO EXPEDITED MOTION FOR PRELIMINARY INJUNCTION [DKT2] &STATUTORY SUPPLEMENT [DKT 11])(Brown, Charles)

Case 1:12-cv-255 Document <docnum> Filed <datefiled> Page 5 of 6

06/05/2012 06/05/2012 06/05/2012
06/05/2012 06/05/2012 06/06/2012
06/08/2012 06/08/2012

17 MEMORANDUM in Opposition re 16 MOTION to Take Judicial Notice and Motion to File Overlength Response Dkt. 16−1 filed by Kevin Kempf, Jay L. Nielsen, C.L. (Butch) Otter, Brent D. Reinke, Robin Sandy, Howard G. "J.R.qVan Tassel. Replies due by 6/22/2012.(Gilmore, Michael)
18 REPLY to Response to Motion re 2 MOTION to Expedite Plaintiffs' Expedited Motion for Preliminary Injunction, 16 MOTION to Take Judicial Notice PLAINTIFFS RESPONSE TO DEFENDANTS OPPOSITION [DKT 17] TO 1) PLAINTIFFS REQUEST FOR JUDICIAL NOTICE [DKT 16] &2) PLAINTIFFS MOTION TO FILE OVER−LENGTH RESPONSE, ETC. [DKT 16−1] filed by Bar Bar Inc., Cowles Publishing Company, Idaho Statesman Publishing, LLC, Idahoans for Openness in Government, Inc., Lee Enterprises, Incorporated, Pioneer Newspapers, Inc., TPC Holdings, Inc., The Associated Press, The Idaho Press Club, Inc..(Brown, Charles)
19 ORDER denying 2 Expedited Motion for Preliminary Injunction filed by Idahoans for Openness in Government, Inc., Idaho Statesman Publishing, LLC, The Idaho Press Club, Inc., Pioneer Newspapers, Inc., The Associated Press, Bar Bar Inc., Lee Enterprises, Incorporated, TPC Holdings, Inc., Cowles Publishing Company; Plaintiffs Motion to Take Judicial Review (Dkt. 16) is irrelevant to the determination on the motion for preliminary injunctive relief. The motion and Defendants objection to said motion will be taken up in the normal course of this litigation. The parties shall submit a joint litigation plan for the Courts consideration to allow for discovery and a full evidentiary hearing on the request for permanent injunctive relief.. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (dks)
20 NOTICE OF APPEAL as to 19 Order,,, by Bar Bar Inc., Cowles Publishing Company, Idaho Statesman Publishing, LLC, Idahoans for Openness in Government, Inc., Lee Enterprises, Incorporated, Pioneer Newspapers, Inc., TPC Holdings, Inc., The Associated Press, The Idaho Press Club, Inc.. Filing fee $ 455, receipt number 0976−891327. (Notice sent to Court Reporter &9th Cir) (Brown, Charles)
21 USCA Case Number 12−35456 for 20 Notice of Appeal, filed by Idahoans for Openness in Government, Inc., Idaho Statesman Publishing, LLC, The Idaho Press Club, Inc., Pioneer Newspapers, Inc., The Associated Press, Bar Bar Inc., Lee Enterprises, Incorporated, TPC Holdings, Inc., Cowles Publishing Company. (dks) (Entered: 06/06/2012)
22 ORDER of USCA as to 20 Notice of Appeal, filed by Idahoans for Openness in Government, Inc., Idaho Statesman Publishing, LLC, The Idaho Press Club, Inc., Pioneer Newspapers, Inc., The Associated Press, Bar Bar Inc., Lee Enterprises, Incorporated, TPC Holdings, Inc., Cowles Publishing Company ; On Wednesday June 6, 2012, the parties simultaneously: (1) shall file opening briefs and any request for relief by 2 p.m. Pacific Time (PT); and (2) may file optional responses by 8 p.m. PT. The Court has read all district court filings so the parties are encouraged to file abbreviated briefs, focused upon the correctness of the district court's June 5, 2012 order. Oral argument is set for Thursday June 7, 2012 at 9:30 a.m. PT at the Richard H. Chambers Courthouse, 125 S. Grand Avenue, Pasadena, CA 91105. Counsel may appear in person in Pasadena, CA or may appear via video conference. A video conference link will be available at the U.S. District Court, 550 W. Fort Street, Boise, Idaho 83724. The Clerk's Office for the Ninth Circuit will be in contact with the parties regarding room locations. (dks)
23 OPINION of USCA as to 20 Notice of Appeal, filed by Idahoans for Openness in Government, Inc., Idaho Statesman Publishing, LLC, The Idaho Press Club, Inc., Pioneer Newspapers, Inc., The Associated Press, Bar Bar Inc., Lee Enterprises, Incorporated, TPC Holdings, Inc., Cowles Publishing Company (dks) (Entered: 06/11/2012)
24 PLEASE DISREGARD−WRONG IMAGE PLACED ON DOCKET. CLERK TO REDOCKET WITH CORRECT IMAGE.MANDATE of USCA as to 20 Notice of Appeal, filed by Idahoans for Openness in Government, Inc., Idaho Statesman Publishing, LLC, The Idaho Press Club, Inc., Pioneer Newspapers, Inc., The Associated Press, Bar Bar Inc., Lee Enterprises, Incorporated, TPC Holdings, Inc.,

Case 1:12-cv-255 Document <docnum> Filed <datefiled> Page 6 of 6

06/08/2012 06/09/2012 06/10/2012 06/11/2012
06/20/2012 06/25/2012 07/09/2012 07/10/2012

Cowles Publishing Company (dks) Modified on 6/11/2012 to edit text (dks). (Entered: 06/11/2012)
25 MANDATE of USCA as to 20 Notice of Appeal, filed by Idahoans for Openness in Government, Inc., Idaho Statesman Publishing, LLC, The Idaho Press Club, Inc., Pioneer Newspapers, Inc., The Associated Press, Bar Bar Inc., Lee Enterprises, Incorporated, TPC Holdings, Inc., Cowles Publishing Company (dks) (Entered: 06/11/2012)
26 ORDER of USCA amending 23 Opinion as to 20 Notice of Appeal, filed by Idahoans for Openness in Government, Inc., Idaho Statesman Publishing, LLC, The Idaho Press Club, Inc., Pioneer Newspapers, Inc., The Associated Press, Bar Bar Inc., Lee Enterprises, Incorporated, TPC Holdings, Inc., Cowles Publishing Company (dks) (Entered: 06/11/2012)
27 ORDER of USCA (en banc proceedings concluded) as to 20 Notice of Appeal, filed by Idahoans for Openness in Government, Inc., Idaho Statesman Publishing, LLC, The Idaho Press Club, Inc., Pioneer Newspapers, Inc., The Associated Press, Bar Bar Inc., Lee Enterprises, Incorporated, TPC Holdings, Inc., Cowles Publishing Company (dks) (Entered: 06/11/2012)
28 ORDER re 23 Opinion &25 USCA Mandate, vacating 19 Order; granting 2 MOTION for Preliminary Injunction filed by Idahoans for Openness in Government, Inc., Idaho Statesman Publishing, LLC, The Idaho Press Club, Inc., Pioneer Newspapers, Inc., The Associated Press, Bar Bar Inc., Lee Enterprises, Incorporated, TPC Holdings, Inc., Cowles Publishing Company. The parties are directed to submit a joint litigation plan to the Court on or before June 22, 2012 in order for the Court to address the remaining issues in this case.. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (dks)
29 DOCKET ENTRY ORDER: Joint litigation plan shall be due by 7/9/2012. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (dmc)
30 STIPULATION re 28 Order,, Joint Stipulation Requesting Extension of Time to File Joint Litigation Plan Pending Settlement of Matter by Bar Bar Inc., Cowles Publishing Company, Idaho Statesman Publishing, LLC, Idahoans for Openness in Government, Inc., Lee Enterprises, Incorporated, Pioneer Newspapers, Inc., TPC Holdings, Inc., The Associated Press, The Idaho Press Club, Inc.. (Brown, Charles)
31 STIPULATION re 28 Order,, Stipulation (in lieu of Joint Litigation Plan) by Bar Bar Inc., Cowles Publishing Company, Idaho Statesman Publishing, LLC, Idahoans for Openness in Government, Inc., Lee Enterprises, Incorporated, Pioneer Newspapers, Inc., TPC Holdings, Inc., The Associated Press, The Idaho Press Club, Inc.. (Brown, Charles)
32 PERMANENT INJUNCTION. The Idaho Department of Corrections, and responsible parties associated therewith, are hereby ordered to modify their procedures to allow the witnesses to the execution of a condemned inmate to observe the entire execution from the moment the inmate enters the execution chamberthrough, to and including, the time the inmate is declared dead. So Ordered and this case will be deemed closed. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjm)