Case 2:14-cv-01447-NVW Document 152 Filed 12/19/16 Page 1 of 6 5 JON M. SANDS Federal Public Defender, District of Arizona DALE A. BAICH (OH Bar No. 0025070) dale_baich@fd.org JESSICA L. FELKER (IL Bar No. 6296357) Jessica_felker@fd.org 850 West Adams Street, Suite 201 Phoenix, Arizona 85007 602.382.2816 602.889.3960 facsimile 6 Counsel for Condemned Plaintiffs 1 2 3 4 7 8 9 MARK E. HADDAD (CA Bar No. 205945) mhaddad@sidley.com SIDLEY AUSTIN LLP 555 West Fifth Street, Suite 4000 Los Angeles, California 90013 213.896.6000 213.896.6600 facsimile 10 Counsel for the Coalition and Condemned Plaintiffs 11 MARK BRNOVICH Attorney General (Firm State Bar No. 14000) JEFFREY L. SPARKS (SBN 027536) Assistant Attorney General Capital Litigation Section 1275 West Washington Phoenix, Arizona 85007-2997 602.542.4686 CADocket@azag.gov 12 13 14 15 16 Counsel for Defendants [additional counsel listed on signature page] UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA 17 18 19 20 21 22 23 24 25 26 27 28 First Amendment Coalition of Arizona, Inc.; Case No. 2:14-cv-01447-NVW-JFM Charles Michael Hedlund; Graham S. Henry; David Gulbrandson; Robert Poyson; STIPULATED SETTLEMENT Todd Smith; Eldon Schurz; and Roger AGREEMENT AND [PROPOSED] Scott, ORDER FOR DISMISSAL OF CLAIM ONE Plaintiffs, v. Charles L. Ryan, Director of ADC; James O’Neil, Warden, ASPC–Eyman; Greg Fizer, Warden, ASPC–Florence; and Does 1-10, Unknown ADC Personnel, in their official capacities as Agents of ADC, Defendants. Case 2:14-cv-01447-NVW Document 152 Filed 12/19/16 Page 2 of 6 1 Plaintiffs Charles Michael Hedlund, Graham S. Henry, David Gulbrandson, 2 Robert Poyson, Todd Smith, Eldon Schurz, and Roger Scott (collectively, “Plaintiffs,”), 3 and Defendants Charles L. Ryan, Director of the Arizona Department of Corrections 4 (“ADC”); James O’Neil, Warden, ASPC–Eyman; and Greg Fizer, Warden, ASPC– 5 Florence (collectively, “Defendants”), hereby stipulate and agree as follows: 6 WHEREAS, Claim One of Plaintiffs’ Second Amendment Complaint (“Claim 7 One”) challenges ADC’s intended use of lethal injection drug Protocol C that consists of 8 midazolam, which belongs to a class of drugs called benzodiazepines, followed by a 9 paralytic (vecuronium bromide, rocuronium bromide, or pancuronium bromide), and 10 potassium chloride under the Eighth Amendment; 11 WHEREAS, Defendants contend that ADC’s previous supplier of midazolam no 12 longer provides the drug for use in lethal injection executions and that ADC’s supply of 13 midazolam expired on May 31, 2016; 14 WHEREAS, ADC has removed Protocol C, the three-drug combination 15 beginning with midazolam that Plaintiffs’ challenge in Claim One, from Department 16 Order 710; 17 WHEREAS, Defendants hereby represent, covenant, and agree, and Plaintiffs 18 and Defendants (collectively, the “parties”) intend, that ADC will never again use 19 midazolam, or any other benzodiazepine, as part of a drug protocol in a lethal injection 20 execution; 21 22 23 WHEREAS, Plaintiffs contend that they have incurred in excess of $2,080,000 in attorneys’ fees and costs in litigating this action; WHEREAS, the parties agree that, because of the above-described 24 circumstances, resolution of Claim One—without further litigation, without any 25 admission of liability, and without any final adjudication of any issue of fact or law—is 26 appropriate and will avoid prolonged and complicated litigation between the parties; 27 28 1 Case 2:14-cv-01447-NVW Document 152 Filed 12/19/16 Page 3 of 6 1 WHEREAS, the parties intend this stipulated settlement agreement to be 2 enforceable by, and for the benefit of, not only the Plaintiffs but also all current and 3 future prisoners sentenced to death in the State of Arizona (“Condemned Prisoner 4 Beneficiaries”), who are express and intended third-party beneficiaries of this stipulated 5 settlement agreement and who are entitled to all rights and benefits provided to Plaintiffs 6 herein, and who, upon any showing that ADC intends to use midazolam, or any other 7 benzodiazepine, in an execution or in an execution protocol, may continue this action as 8 substituted plaintiffs pursuant to Rule 25(c) of the Federal Rules of Civil Procedure; 9 WHEREAS, the parties intend this stipulated settlement agreement to bind 10 Defendants, ADC, and any of Defendants’ successors in their official capacities as 11 representatives of ADC, who, in the event that any Plaintiff or Condemned Prisoner 12 Beneficiary moves to reopen this proceeding under Rule 60(b)(6) of the Federal Rules of 13 Civil Procedure, will be deemed to have been automatically substituted as defendants in 14 this action pursuant to Rule 25(d) of the Federal Rules of Civil Procedure; 15 WHEREAS, the parties intend and agree that, upon any breach of this stipulated 16 settlement agreement, (a) any Plaintiff or Condemned Prisoner Beneficiary has standing 17 and the right to move to reopen this proceeding under Rule 60(b)(6) of the Federal Rules 18 of Civil Procedure, and (b) an order shall issue permanently enjoining ADC from using 19 midazolam, or any other benzodiazepine, in an execution or in an execution protocol; 20 WHEREAS, in the event that any Plaintiff or Condemned Prisoner Beneficiary 21 moves to reopen this proceeding under Rule 60(b)(6) of the Federal Rules of Civil 22 Procedure, the parties agree that Defendants, ADC, and/or any of Defendants’ 23 successors in their official capacities as representatives of ADC waive all objections to 24 this Court’s reopening of this proceeding, including on the basis of timing, ripeness, 25 mootness, or the standing of the moving parties; 26 WHEREAS, in the event that this stipulated settlement agreement is breached 27 through ADC’s use or intent to use a benzodiazepine in an execution or in an execution 28 2 Case 2:14-cv-01447-NVW Document 152 Filed 12/19/16 Page 4 of 6 1 protocol, and any Plaintiff’s or Condemned Prisoner Beneficiary’s motion to reopen this 2 proceeding under Rule 60(b)(6) of the Federal Rules of Civil Procedure is not granted 3 for reasons related to the moving parties’ standing or the Court’s jurisdiction, 4 Defendants consent to the entry of an order in a separate action by a Plaintiff or a 5 Condemned Prisoner Beneficiary for breach of this agreement that permanently enjoins 6 ADC from using midazolam, or any other benzodiazepine, in an execution or in an 7 execution protocol. 8 IT IS THEREFORE STIPULATED AND AGREED that: 9 (1) 10 without prejudice. 11 (2) Claim One of Plaintiffs’ Second Amended Complaint is dismissed, Upon any showing by any Plaintiff or Condemned Prisoner Beneficiary 12 that ADC intends to use midazolam, or any other benzodiazepine, in an execution or in 13 an execution protocol, Claim One shall be reinstated and reopened pursuant to Rule 14 60(b)(6) of the Federal Rules of Civil Procedure, and, based on the agreement and 15 consent of the parties granted herein, an injunction shall issue in this action or in a 16 separate action for breach of the parties’ stipulated settlement agreement permanently 17 enjoining ADC from using midazolam, or any other benzodiazepine, in an execution or 18 in an execution protocol. 19 (3) Plaintiffs agree not to seek their attorneys’ fees and costs incurred in 20 litigating Claim One unless Defendants or ADC breach this stipulated settlement 21 agreement, in which case Plaintiffs shall be entitled to seek an award of their reasonable 22 attorneys’ fees and costs incurred in litigating Claim One, in an amount to be determined 23 by the Court, either in this action or in a separate action for breach of the parties’ 24 stipulated settlement agreement. In that circumstance, Plaintiffs shall also be entitled to 25 seek to collect their reasonable attorneys’ fees and costs incurred in moving to enforce 26 this stipulated settlement agreement. 27 28 3 Case 2:14-cv-01447-NVW Document 152 Filed 12/19/16 Page 5 of 6 1 Dated: December 19, 2016 Sidley Austin LLP 2 s/ Mark E. Haddad Mark E. Haddad Attorneys for Plaintiffs Charles Michael Hedlund; Graham S. Henry; David Gulbrandson; Robert Poyson; Todd Smith; Eldon Schurz; and Roger Scott 3 4 5 6 7 Dated: December 19, 2016 Office of the Arizona Attorney General 8 s/ Jeffrey L. Sparks Jeffrey L. Sparks David Weinzweig Lacey Stover Gard John Pressley Todd 9 10 11 Attorneys for Defendants 12 13 14 15 16 17 18 19 I, Mark Haddad, hereby attest that counsel for Defendants, Jeffrey L. Sparks, authorized the use of his signature on, and concurred in the filing of, this document, on December 19, 2016. 20 21 s/ Mark E. Haddad Mark E. Haddad 22 23 24 * * 25 26 27 28 4 * Case 2:14-cv-01447-NVW Document 152 Filed 12/19/16 Page 6 of 6 ORDER 1 2 IT IS SO ORDERED. 3 4 DATED this ___ day of ______, 2016. 5 6 Neil V. Wake United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5