## Facts

- California law provides that executions are carried out at San Quentin State Prison and, unless a condemned inmate elects lethal gas, by lethal injection.
- The California Department of Corrections and Rehabilitation (CDCR) issued Operational Procedure No. 0-770 (OP 770) to govern executions by lethal injection.
- OP 770 set standards for the execution process, including management of condemned inmates from the setting of an execution date through completion of the execution, and criteria for selection, training, and oversight of the lethal injection team.
- Condemned inmates Michael Morales and Mitchell Sims challenged OP 770 as an invalid “regulation” because CDCR adopted it without complying with the California Administrative Procedure Act (APA) rulemaking process.
- The trial court granted summary judgment for Morales and Sims and enjoined CDCR from conducting executions under OP 770 unless and until it was promulgated in compliance with the APA.
- CDCR and its Secretary appealed.

## Issues

1. Whether OP 770 is a “regulation” (a rule of general application) subject to APA rulemaking requirements.
2. Whether OP 770 falls within the Penal Code § 5058(c)(1) “single facility” exception to APA rulemaking.

## Decision

- The Court of Appeal affirmed the summary judgment and injunction.
- OP 770 was a rule of general application implementing and making specific the statutory lethal injection mandate and therefore was a “regulation” subject to the APA.
- The fact that executions occur at a single prison did not defeat general application because OP 770 prospectively governed all lethal injection executions and affected a defined class of persons (condemned inmates).
- OP 770 did not qualify for the single-facility exception because it implemented a statewide statutory scheme rather than addressing purely local, internal management concerns of one institution.
- Because OP 770 was not adopted through APA procedures, CDCR was barred from using it to conduct executions until proper APA promulgation occurred.

## Legal Principles

- Under the APA, an agency rule is a “regulation” when it is a rule of general application adopted to implement, interpret, or make specific the law the agency enforces.
- “General application” turns on prospective operation upon a class of persons or situations, not on the size of the class or the number of facilities where the rule is carried out.
- The Penal Code § 5058(c)(1) single-facility exception is limited to rules genuinely confined to internal operations of a particular institution and does not exempt statewide implementation rules merely because they are executed at one facility.
- A court may enjoin agency action taken under an invalid, unpromulgated regulation until APA rulemaking requirements are satisfied.

## Conclusion

The court held that CDCR’s lethal injection protocol functioned as an APA regulation of general application and was not exempt under the single-facility exception, so it could not be used to carry out executions unless and until CDCR adopted it through APA rulemaking.


Morales v. Cal. Dep’t of Corr. & Rehab., 168 Cal. App. 4th 729, 85 Cal. Rptr. 3d 724 (Ct. App. 2008)