IN THE SUPREME COURT OF THE STATE OF NEVADA

*****
STATE OF NEVADA; NEVADA
DEPARTMENT OF
CORRECTIONS; JAMES Electronically Filed
DZURENDA, Director of the Nevada Mar 04 2019 09:01 a.m.
Department of Corrections, in his Elizabeth A. Brown
official capacity; IHSAN AZZAM, Clerk of Supreme Court
Ph.D, M.D., Chief Medical Officer of
the State of Nevada, in his official
capacity; and JOHN DOE, Attending
Physician at Planned Execution of Scott Supreme Court Case No.: 77100/77365
Raymond Dozier in his official capacity, District Court No.: A-18-777312-B
Petitioners,
vs.

THE EIGHTH JUDICIAL DISTRICT

COURT OF THE STATE OF
NEVADA, IN AND FOR THE
COUNTY OF CLARK; AND THE
HONORABLE ELIZABETH
GONZALEZ, DISTRICT COURT
JUDGE,
Respondents,
and

ALVOGEN, INC.; HIKMA

PHARMACEUTICALS USA INC.,
Real Parties in Interest.
PETITIONER’S RESPONSE TO ORDER TO SHOW CAUSE
AARON D. FORD
Attorney General
HEIDI PARRY STERN (Bar No. 8873)
Solicitor General
D. RANDALL GILMER (Bar No. 14001)
Chief Deputy Attorney General
THERESA M. HAAR (Bar No. 12158)
Senior Deputy Attorney General
OFFICE OF THE ATTORNEY GENERAL
555 East Washington Avenue, Suite 3900
Las Vegas, NV 89101
(702) 486-3427
drgilmer@ag.nv.gov

   
Docket 77100 Document 2019-09545
 

I. INTRODUCTION

Despite the death of the condemned inmate awaiting execution (Scott Dozier)

at the core of this case, the State’s appeals are not moot. Live issues remain viable here,

because the underlying scenario is capable of repetition yet evading review. Any doubt

regarding the potential for repetition yet evading review was removed on or about

February 21, 2019. On that date, the Office of Attorney General received a service

copy of an in pro per motion from condemned inmate Kevin James Lisle (49948)

wherein he has sought to inform the United States District Court for the District of

Nevada that he desires to waive his pending appeals “with the complete and competent

understanding that ELY STATE PRISON EXECUTIONERS will put him to death

by lethal means.”1

The State has a legal duty to enforce capital punishment statutes under NRS

176.355 by carrying out executions. Given Lisle’s clear intention to waive his appeals

with the understanding that he would be put to death, there is every reason to believe

Lisle’s execution could and would take place prior to January 30, 2020, which is the

expiration date of the last batch of midazolam in possession of the State and that is

subject to the current preliminary injunction. While the State would welcome this

Court’s summarily vacating the preliminary injunction so that it could use the

                                                            
  See
Exh. A at 1 (motion brief from condemned inmate Kevin Lisle #49948
1

purporting to waive his appellate challenges to his conviction and sentence).

 

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Alvogen’s midazolam product in this (or any other) anticipated execution, Alvogen has

informed the State that should the preliminary injunction be summarily vacated by this

Court, it would move to enjoin the use of its midazolam product in Lisle’s execution.

Thus, not only is this situation capable of repetition yet evading review, judicial

economy weighs in favor of this Court deciding this case now as opposed later.

In addition to this apparently pending execution, the current preliminary

injunction appeal is not moot because at a minimum, the interplay between NRS

Chapter 176 and the District Court's authority to issue a preliminary injunction is

capable of repetition yet evading review. Without the Court deciding this legal issue,

summarily vacating the preliminary injunction with the understanding that Alvogen

will again move to block any other executions that may be scheduled prior to the

expiration of Alvogen’s midazolam product, would result in the State’s inability to carry

out executions and fulfill its legal duty to enforce capital punishment statutes, which

the State may be called upon to do at any time.

II. ARGUMENT

A. The Mootness Standard

"The question of mootness is one of justiciability." Personhood Nev. v. Bristol, 126

Nev. 599, 602, 245 P.3d 572, 574 (2010). A case becomes moot when "this court is

unable to grant effective relief." Id. "A civil case will not be considered moot if an

aggrieved party diligently and actively seeks relief from discernible and substantial

consequences flowing from a lower tribunal's judgment." Boulet v. City of Las Vegas, 96

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Nev. 611, 613-14, 614 P.2d 8, 10 (1980). The party asserting mootness has a heavy

burden. Los Angeles CO. v. Davis, 440 U.S. 625, 631 (1979).

Even if a preliminary injunction is later superseded later by a permanent

injunction, the issues presented in the preliminary injunction remain live for review if

they are subject to repetition. See Dickstein v. Williams, 93 Nev. 605, 608–10, 571 P.2d

1169, 1171–72 (1977).

B. Live Issues, or Issues Capable of Repetition Yet Evading Review,

Remain

A case is not moot as long as any single issue remains viable, as the remaining

issue satisfies the case-or-controversy requirement. See Valley Health Sys., LLC v. Estate

of Doe, 134 Nev. Adv. Op. 76, 427 P.3d 1021, 1026 n.1 (2018); Toxco, Inc. v. Chu, 801 F.

Supp. 2d 1, 6 (D. D.C. 2011).

This Court "may still consider [a] case as a matter of widespread importance

capable of repetition, yet evading review" if "(1) the duration of the challenged action

is relatively short, (2) there is a likelihood that a similar issue will arise in the future, and

(3) the matter is important." Birch v. Las Vegas Metro Police Dep't, 129 Nev. 328, 334, 302

P.3d 1108, 1113 (2013). Those conditions are met here.

This Court has repeatedly recognized the important issues presented in this case

generally and it is no less true for the specific controversy over the State’s ability to

enforce capital punishment statutes and carry out its legal duty to execute condemned

inmates. It is a scenario that is likely to reoccur but avoid review due to subsequent

3
 

preliminary injunctions. The State must carry out an execution within a 30-day window

of time designated by the sentencing district court. See NRS 176.345(1)(b); see also NRS

176.355(2)(a).

In pregnancy cases, appellate courts have recognized that time periods of

approximately nine months fall within the “capable of repetition, yet evading review”

exception to the mootness doctrine. See McCormack v. Herzog, 788 F.3d 1017, 1026 (9th

Cir. 2015). Here, the time period to carry out an execution is a single month (30 days).

Because of the short duration involved, the issues in this case are capable of repetition

yet, as is the case here, evade review.

A district court’s preliminary injunction preventing the use of a necessary drug

in a future execution, as issued in this case, would disrupt the ability of the State to carry

out the execution within the 30-day window of time as required by Nevada law. By the

time litigation regarding the preliminary injunction resolved, the sentencing district

court’s order would have expired, and the State would face a renewed cycle of litigation.

Furthermore, any future preliminary injunction and related litigation Alvogen

would seek—related to Lisle’s wish to waive his appeals and be executed or otherwise—

would lead to the expiration (and uselessness) of the last two batches of Alvogen’s

midazolam’s product in the States’ possession, as those batches will expire on June 30,

2019 and January 30, 2020.

So long as Nevada law provides for capital punishment, there is a likelihood that

similar issues as presented in this case will arise in the future. The Court should not

4
 

consider the issues presented here moot, especially in light of pending legislation that

may alter Nevada’s capital punishment statutes.2 The Nevada Legislature’s

consideration of legislation that may alter capital punishment statutes reveals the public

importance of the issues in this case. Furthermore, the United States Court of Appeals

for the Ninth Circuit recently inquired into the status of this case during oral argument,

demonstrating that other courts consider the issues presented here both important and

likely to occur again.3 Additionally, another condemned inmate has recently expressed

his desire to waive his appellate challenges, which will likely create a similar scenario as

this case.4

Because this case presents issues that fall within a short duration, are likely to

arise in the very near future given Lisle’s expressed wishes, and are of importance to

both the State of Nevada (as it has a legal duty to carry out any pending executions) and

Alvogen (as it attempts to block its product from being used in executions without its

consent), these appeals are not moot, and the Court should consider them in light of

the “capable of repetition yet evading review” exception.

                                                            
2
See generally A.B. 149, 80th Leg. Session (Nev. 2019).
See, Oral Argument in Zane Floyd v. Timothy Filson, No. 14-99012, UNITED STATES
3

COURTS FOR THE NINTH CIRCUIT (retrieved February 21, 2019),

https://www.ca9.uscourts.gov/media/view_video.php?pk_vid=0000014998, Video
Timestamp 48:50 (appellate panel inquiring as to the status of this case) (Judges Berzon,
Owens, and Friedland).
See Exh. A at 1 (motion brief from condemned inmate Kevin Lisle #49948
4

purporting to waive his appellate challenges to his conviction and sentence).

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III. CONCLUSION

For these reasons, the State's appeals are not moot and should not be dismissed.

Therefore, the State respectfully request that the Court should consider these cases in

due course.

/s/ D. Randall Gilmer

HEIDI PARRY STERN (BAR NO. 8873)
Solicitor General
D. RANDALL GILMER (BAR NO. 14001)
Chief Deputy Attorney General
THERESA M. HAAR (BAR NO. 12158)
Senior Deputy Attorney General
OFFICE OF THE ATTORNEY GENERAL
555 East Washington Avenue, Suite 3900
Las Vegas, NV 89101
(702) 486-3427
drgilmer@ag.nv.gov
thaar@ag.nv.gov

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CERTIFICATE OF SERVICE

I hereby certify that I electronically filed the foregoing PETITIONER’S

RESPONSE TO ORDER TO SHOW CAUSE with the Clerk of the Court for the

Nevada Supreme Court by using the appellate CM/ECF system on March 1, 2019.

Participants in the case who are registered CM/ECF users will be served by the

appellate CM/ECF system.

A copy was provided to the following:

James J. Pisanelli, Esq.
Todd Bice, Esq.
Debra Spinelli, Esq.
PISANELLI BICE, PLLC
400 South 7th Street,
Suite 300
Las Vegas, NV 89101
 
Angela Walker
LATHAM & WATKINS, LLP
555 Eleventh Street, NW,
Suite 1000
Washington, DC 20004-1304
J. Colby Williams, Esq.
Philip R. Erwin, Esq.
CAMPBELL & WILLIAMS
700 South Seventh Street
Las Vegas, NV 89101
Andrew Kantra, Esq
PEPPER HAMILTON LLP
300 Two Logan Square
Eighteenth and Arch Streets
Philadelphia, PA 19103
Kenneth Schuler, Esq.
Michael Faris, Esq.
Alex Grabowski, Esq.
LATHAM & WATKINS, LLP
330 North Wabash Avenue,
Suite 2800
Chicago, IL 60611
Noel B. Ix., Esq.
PEPPER HAMILTON LLP
301 Carnegie Center,
Suite 400
Princeton, NJ 08540
E. Leif Reid, Esq.
Josh M. Reid, Esq.
Kristin L. Martini, Esq.
LEWIS ROCA
ROTHGERBER CHRISTIE
LLP
3993 Howard Hughes Pkwy,
Suite 600
Las Vegas, NV 89169
Hon. Elizabeth Gonzalez
Eighth Judicial District Court
Department 11
200 Lewis Avenue
Las Vegas, NV 89155
/s/ Renee Carreau
An employee of the
Office of the Attorney
General

7
 Exhibit A
Motion Brief