No.

14A82


IN THE SUPREME COURT OF THE UNITED STATES


Charles L. Ryan, Director of the Arizona Department of Correction, et al.,
Petitioner,

vs.

Joseph Rudolph Wood III, Respondent.


OPPOSITION TO APPLICATION TO VACATE STAY OF EXECUTION


EXECUTION SCHEDULED FOR JULY 23, 2014, 10 A.M. (MST) / 1:00 P.M. (EST)


JON M. SANDS
Federal Public Defender
District of Arizona

Dale A. Baich
Counsel of Record
Robin C. Konrad
850 West Adams Street, Suite 201
Phoenix, Arizona 85007
(602) 382-2816 voice
(602) 889-3960 facsimile
dale_baich@fd.org
robin_konrad@fd.org

Attorneys for Respondent Joseph Rudolph Wood III

i
TABLE OF CONTENTS

Table of Contents ............................................................................................................ i

Table of Authorities ........................................................................................................................ii

Introduction ................................................................................................................... 1

I. Mr. Wood, as a member of the public, has an individual First
Amendment right of access, which the Court of Appeals appropriately
recognized in issuing its conditional injunction. ......................................................3

II. The limited holding of the Court of Appeals does not create a First
Amendment right of access to any government information. ............................7

III. The Ninth Circuit applied the complementary considerations from
Press-Enterprise II to determine that access to documents that are
inextricably intertwined with historically open execution proceedings
directly contributes to the constitutionally protected, informed
discussion of governmental affairs. ...........................................................................13

IV. The Court of Appeals applied the correct preliminary-injunction
standard, which is consistent with this Courts precedent. .................................17

Conclusion .................................................................................................................... 19

Certificate of Service .................................................................................................................... 20


ii
TABLE OF AUTHORITIES


Associated Press v. Otter, 682 F.3d 821 (9th Cir. 2012) ...................................................18

Cal. First Amend. Coal. v. Woodford, 299 F.3d 868 (9th Cir. 2002) ............................9, 11

Elrod v. Burns, 427 U.S. 347 (1976) .................................................................................18

Globe Newspaper Co. v. Super. Ct. for Norfolk Cnty., 457 U.S. 596 (1982) ..12, 13, 14, 15

Hill v. McDonough, 547 U.S. 573 (2006) ..........................................................................17

Lopez v. Brewer, 680 F.3d 1068 (9th Cir. 2012) ...............................................................17

New York Civil Liberties Union v. New York City Transit Authority, 684 F.3d 286
(2d Cir. 2012) ...............................................................................................................16

New York Times Co. v. Sullivan, 376 U.S. 254 (1964) ......................................................17

Pell v. Procunier, 417 U.S. 817 (1974) .............................................................................12

Planned Parenthood of Greater Texas Surgical Health Services v. Abbott, 134 S.
Ct. 506 (2013) (citation omitted) ..................................................................................6

Press-Enterprise Co. v. Super. Ct., 478 U.S. 1 (1986) ............................................7, 13, 14

Richmond Newspapers, Inc. v. Virginia, 488 U.S. 555 (1980) .............................14

Russian Media Group, LLC v. Cable America, Inc., 598 F.3d 302 (7th Cir. 2010) ............6

The Monrosa v. Carbon Black Export, Inc., 359 U.S. 180 (1959) ....................................12

Travelers Casualty and Sur. Co. of America v. Pacific Gas and Electric Co., 549
U.S. 443 (2007) ..............................................................................................................4

Wellons v. Commissioner, Georgia Department of Corrections, 2014 WL
2748316 (11th Cir. J une 17, 2014) ..............................................................................11

Winter v. Natural Resource Defense Council, Inc., 555 U.S. 7 (2008) .............................18

Wood v. Milyard, 132 S. Ct. 1826 (2012) ............................................................................3
1
Introduction
Without invoking this Courts jurisdiction, citing any authority upon which
they rely, or filing a petition for writ of certiorari, Petitioners simply ask this Court
to take the extraordinary measure of vacating the conditional injunction entered by
the Ninth Circuit Court of Appeals. (See Application to Vacate Stay of Execution,
filed July 21, 2014) (hereinafter Application).
The decision does not prevent Petitioners from carrying out Mr. Woods
execution. The Court of Appeals granted a conditional injunction ordering
Petitioners to provide Mr. Wood with very limited information that is inextricably
intertwined with the States execution proceeding. (App. A at 28.)
1
As that court
explained, [o]nce he has received that information, the injunction shall be
discharged without more and the execution may proceed. (App. A at 28.) Rather
than comply with the Court of Appeals order, Petitioners have asked this Court to
vacate a stay of execution. This request is improper; therefore, this Court should
not vacate the lower courts intermediate discretionary order.
Even if Petitioners request were proper, the Court should not vacate the
conditional injunction. In an attempt to get this Court to take action, Petitioners
rewrite Mr. Woods argument presented below and alter the issue decided by the
Court of Appeals. The issue presented throughout these proceedings was Mr.

1
All references to appendices refer to appendices attached to the Application to
Vacate Stay of Execution.
2
Woods individual First Amendment right of access to information specific to his
scheduled executionnot the generalized publics First Amendment right. His
argument is, and continues to be, that he, as a member of the public, has an
individual right of access, and that he was entitled to enforce this right before he is
executed. This was the limited question before the Court of Appeals. Thus,
contrary to Petitioners newly crafted assertion, the injunction, which requires
Petitioners to comply with Mr. Woods First Amendment rights before carrying out
his execution, is a remedy specific to Mr. Wood.
Petitioners other arguments are likewise unavailing. Although Petitioners
ask this Court to believe that the Court of Appeals took a drastic measure that was
inconsistent with this Courts precedent and created a new right of access, it did
not. Consistent with the preliminary-injunction standard of review, the Court of
Appeals did not resolve the merits of the underlying claim. (App. A at 28.)
Instead, the court considered the four factors necessary when determining whether
a preliminary injunction should issue, and found that all factors were met. (App. A
at 28.) There was no error in applying the standard for a preliminary injunction.
Likewise, there was no error in reviewing the strength of Mr. Woods First
Amendment claimthat review was required. The court appropriately and
properly applied this Courts and its own precedent to the facts of this case. For
these reasons, the conditional injunction should remain in place.

3
I. Mr. Wood, as a member of the public, has an individual First
Amendment right of access, which the Court of Appeals
appropriately recognized in issuing its conditional injunction.

1. Petitioners seek to vacate the Court of Appeals conditional injunction,
claiming that Mr. Wood has brought a claim asserting a right of the general public.
But Mr. Wood has not and does not assert a right of the general public. Rather, Mr.
Wood has repeatedly urged that, as a member of the public, he has an individual
First Amendment right of access to the information he seeks, and an individual
right to participate in discussions about governmental proceedings.
2
Petitioners
cannot rewrite Mr. Woods claim and present a new argument in their application to
this Court simply because they are dissatisfied with the ruling from the Court of
Appeals. See generally Wood v. Milyard, 132 S. Ct. 1826, 1834 (2012) (noting that
appellate courts ordinarily abstain from entertaining issues that have not been

2
See Reply Br., Ninth Cir. ECF No. 21-2 at 26, filed July 16, 2014 (explaining that
[i]t is against th[e] backdrop of the gray-market pharmaceutical industry, and prior
unlawful behavior and misrepresentations by [Petitioners], that Mr. Wood asks for
information that will allow him the right as an individual citizen to effectively
participate in and contribute to our republican system of self-government);
Opening Br., Ninth Cir. ECF No. 10-1 at 50, filed July 14, 2014, (noting that Mr.
Wood has consistently asserted that he is an individual citizen with a First
Amendment right of access to governmental proceedings and that, as a prisoner, he
retains First Amendment rights absent procedures to deprive him of those rights,
which has not occurred here) (citations and internal quotation marks omitted);
Emergency Mot. for Stay of Execution, Ninth Cir. ECF No. 12 at 7, filed July 14,
2014 (noting that a stay of execution may be required to afford[] him his ability to
effectively participate in and contribute to our republican system of self-
government) (citation omitted); Mot. for Prelim. Inj. or TRO, Dist. Ct. ECF No. 11
at 11, filed July 2, 2014 (noting that Mr. Wood is an individual citizen with a First
Amendment right of access to governmental proceedings).
4
raised and preserved in the court of first instance); Travelers Cas. and Sur. Co. of
America v. Pacific Gas and Elec. Co., 549 U.S. 443, 455 (2007) (declining to review
arguments that were not raised below and where none of the lower courts had
occasion to address them).
Nor can Petitioners ignore the plain language from the Court of Appeals
decision, which noted that Mr. Wood was suing to enforce a public First
Amendment right . . . . as [an] individual citizen[ ]. (App. A at 9, n.1.) But they do.
And it is only by ignoring this fundamental basis underlying Mr. Woods claim for
relief and rewriting the issue that Petitioners are able to make their argument that
enjoining his execution is somehow improper.
Petitioners also assert that Mr. Wood is trying to obtain details about his
execution presumably so that he can challenge the execution, and is therefore
making an end run around the appropriate standard under the Eighth and
Fourteenth Amendments. (Appl. at 8.) Once again, Petitioners argument is not
based on Mr. Woods claim, on facts in the record, or on findings by the Court of
Appeals or the district court; it is based on pure speculation raised for the first time
in their plea to this Court. This Court should not vacate a well-reasoned decision by
the Court of Appeals based on Petitioners accusation that Mr. Wood is attempting
to vindicate a right that he has not asserted.
2. Additionally, Petitioners suggest that the limited remedy narrowly
tailored to the facts of the instant case raises questions regarding the limits of a
5
federal courts equitable power to extend to constitutional claims unrelated to an
execution. (Appl. at 7.) They suggest that prisoners can now seek a stay of
execution to litigate a claim related to prison conditions filed one week before an
execution. (Appl. at 7.) As Petitioners note, this result would be absurd, and Mr.
Wood agreesboth because the hypothetical has no relation to the execution itself,
and because it presumes that courts would no longer need to analyze the factors for
injunctive relief.
In this case, Mr. Wood is seeking information specifically related to his
execution; he is not seeking to vindicate a general constitutional right unrelated to
the imminent execution. There would be no reason to stay an execution in the
example provided by Petitioners. But contrary to Petitioners assertion, the remedy
in this case does, in fact, bear a relationship to the type of claim Mr. Wood asserted.
(Appl. at 6.) Here, the First Amendment right of access is a right that directly
involves the execution. As such, the Court of Appeals properly tailored the narrow
remedy in this case to ensure that Mr. Woods rights would not be violated and to
allow Petitioners to carry out his execution consistent with his First Amendment
rights surrounding that execution.
3. The Court of Appeals entered a preliminary injunction and
simultaneously stayed Mr. Woods execution in order to ensure that the injunction
would not immediately become moot. (App. A at 24.) That is, far from creating a
novel remedy (Appl. at 7), the court exercised its equitable powers to issue an
6
appropriate remedy to address the narrow issue that Mr. Wood raised. These
actions are within a courts equitable powers, and are particularly appropriate
when, as here, there is a serious question as to the constitutionality of Petitioners
actions in depriving Mr. Wood of his First Amendment right of access. See, e.g.,
Russian Media Group, LLC v. Cable America, Inc., 598 F.3d 302, 307 (7th Cir. 2010)
(explaining that a court has the discretion to issue a broad injunction in cases
where a proclivity for unlawful conduct has been shown) (citing McComb v.
Jacksonville Paper Co., 336 U.S. 187, 192 (1949)).
Petitioners suggest that the conditional injunction, which has the effect of
staying Mr. Woods execution only if Petitioners do not comply with the order, is
improper because Mr. Wood does not challenge the lawfulness of the execution
itself. (Appl. at 6.) That is not accurate. A court may even enjoin certain
otherwise lawful conduct when the defendants conduct has demonstrated that
prohibiting only unlawful conduct would not effectively protect the plaintiffs rights
against future encroachment. Russian Media Group, 598 F.3d at 307 (collecting
cases). Thus, the Court of Appeals actions are particularly appropriate here: if the
court were to prohibit only the unconstitutional conduct (violation of the First
Amendment), then Mr. Woods current and future interests would be unprotected.
Because the conditional injunction issued by the Court of Appeals is
specifically tailored to Mr. Wood, this Court should not vacate it. See Planned
Parenthood of Greater Texas Surgical Health Services v. Abbott, 134 S. Ct.
7
506 (2013) (Scalia, J., concurring in denial of application to vacate stay) (noting that
great deference is owed to the Court of Appeals) (citation omitted).
II. The limited holding of the Court of Appeals does not create a First
Amendment right of access to any government information.

1. Mr. Wood sought a First Amendment right to access historically open
information, and the Court of Appeals considered the complementary
considerations that this Court outlined in Press-Enterprise Co. v. Super. Ct., 478
U.S. 1, 8 (1986) (Press-Enterprise II). (App. A at 14.) Consistent with this Courts
precedent, see Press Enterprise II, 478 U.S. at 8, the Court of Appeals determined
that Mr. Wood had presented a serious question whether access to the specific
execution information he sought was related to, and arguably necessary for a full
understanding of, a proceeding in which [that court] ha[s] already granted a
qualified right of access. (App. A 29-1 at 13.) The Court of Appeals further
recognized that the right to access information associated with public proceedings is
an important component of the Press-Enterprise II First Amendment right of
access. (App. A at 10-13.) Ultimately, the court considered a narrow factual
question based on a qualified right of access to information regarding historically
open proceedings, and limited its holding to the information Wood seeks. (App. A
at 7.)
2. Despite this, Petitioners assert that the Court of Appeals erroneously
create[d] an unprecedented and newfound First Amendment right to access any
8
government held information that is inextricably intertwined with a public
proceeding. (Appl. at 10.) Similarly, Petitioners argue the Court of Appeals
decision expanded the right of access such that it would swallow the default rule,
that there is no First Amendment right to information in the governments control.
(Appl. at 15) (quotation marks omitted; citation omitted). Neither proposition is
true.
Petitioners try to grab this Courts attention by vastly overstating the Court
of Appeals holding. As the court carefully explained, The issue is not whether
Press-Enterprise II grants a generalized right of access to executive branch
documents. It does not. (App. A at 12) (emphasis added). The court limited its
decision to the specific information Mr. Wood sought, which was related to the
execution proceedings. The court carefully applied Press-Enterprise II and did not
stray from this Courts or its own precedent. (See Section III, infra.)
The Court of Appeals decision does not render superfluous Freedom of
Information (FOI) requests. (Appl. at 15.) Mr. Wood requested information related
to historically open government proceedings; he did not request information covered
by FOI statutes.
3
FOI laws are designed to provide access to information related to

3
Whether governmental information is also available via a FOI request is not
relevant to a First Amendment analysis. The government is free to make
constitutionally protected information available through administrative processes.
What it cannot do is hide constitutionally protected information behind the label of
FOI statutes, then remove that information from FOI access and claim that because
the information was available through FOI requests, the information has no
9
government proceedings that have not historically been open to the public. That is,
FOI laws open more documents to public review than those available through the
First Amendment.
4
Because the FOI laws address non-constitutionally-protected
information, the government still is free to exclude categories of information from
release. But that is not the case for documents related to proceedings to which the
First Amendment right of access has attached.
Moreover, reliance on constitutional protections does not result in trying to
use the First Amendment as a discovery tool or FOIA request. (Appl. at 14.)
Rather, Mr. Wood has relied on the fundamental constitutional protections that the
Court of Appeals has found attaches to execution proceedings. Cal. First Amend.
Coal. v. Woodford, 299 F.3d 868, 877 (9th Cir. 2002) (holding that executions have
been historically open proceedings and that public access to executions serves

constitutional protection.
4
Congress passed the Administrative Procedure Act (5 U.S.C. section 1002) in 1946,
and included a Public Information section that was drawn upon the theory that
administrative operations and procedures are public property which the general
public, rather than a few specialists or lobbyists, is entitled to know or have ready
means of knowing with definiteness and assurance. H. Rep. No. 1497, 89th
Congress, 2nd Session, House Committee on Government Operations (May 9, 1966)
(S. 1160), Section II, Background, subsection The Public Information Section of
the Administrative Procedures Act. (citing H. Rep. No. 752, 79th Cong. 1st sess.).
However, Congress found that this section, though titled Public Information and
clearly intended for that purpose, has been used as an authority for withholding,
rather than disclosing information. Id. at Section III, The Need for Legislation.
As a result of these agency abuses, Congress passed the FOI statute to emphasize
that [the Public Information section] of the [APA] is not a withholding statute but a
disclosure statute . . . . S. Rep. No. 813, 89th Congress, 1st Session, Senate
Committee on the Judiciary (Oct. 4, 1965) (S. 1160), What S. 1160 Would Do.
10
functional importance). Based on the controlling circuit law, Mr. Wood asked for
specific information that is inextricably intertwined with historically open
proceedings. (App. A at 13-14.) As such, Petitioners argument that the right of
access does not extend to every piece of information potentially related to the
proceeding (Appl. at 14) has no relevancy here.
The Court of Appeals granted Mr. Wood access to the limited information
that is related specifically to his execution proceedings. Its decision is not open to
ambiguous interpretationthe relevant analysis was and still is the test described
in Press-Enterprise II. Courts will continue to examine whether a particular
government proceeding has been historically open and whether public access would
contribute to the functioning of that proceeding.
4. Petitioners also argue that this Court should vacate the conditional
injunction entered by the Court of Appeals because the court did not cite[] a single
case finding a First Amendment right of access to the type of information at issue,
and because the courts decision creates a circuit split with an opinion issued a
month ago by the Eleventh Circuit and is directly inconsistent with a recent
opinion of the Georgia Supreme Court. (Appl. at 14.) This argument does not
support Petitioners request.
First, the Court of Appeals decision is not unprecedented simply because
the facts are new. Courts routinely apply principles of law to specific facts before
them; they do not generally address hypothetical factual scenarios. For example, in
11
California First Amendment Coalition, the Court of Appeals applied principles of
law established by this Court to the issue before it: This appeal concerns the
restriction on viewing lethal injection executions imposed on the public and the
press by San Quentin Institutional Procedure 770. Cal. First Amend. Coal., 299
F.3d at 870. Applying those principles, the Court of Appeals explained that the
same functional concerns that drove the [Supreme] Court to recognize the publics
right of access to criminal trial proceedings compel us to hold that the public has a
First Amendment right to view the condemned as he enters the execution chamber .
. . . Id. at 877. The fact that the Court in California First Amendment Coalition
sa[id] nothing about information in the governments possession, but merely the
publics right to view an execution (Appl. at 14) is unsurprising; the Court was not
asked to evaluate an access-to-information claim.
Petitioners also rely on Wellons v. Commissioner, Georgia Department of
Corrections, 2014 WL 2748316 (11th Cir. June 17, 2014), and misread the
significance of that case. In denying the claim in Wellons, the court provided no
analysis supporting its conclusion that the First Amendment does not permit the
right of individual access in executions. Id. at *6.
Here, there was a robust discussion of the First Amendment and its
application to the instant circumstances. There may be different results in the only
two circuits that have addressed this issueboth in a preliminary-injunction
posture. If anything, this Court should wait for future cases where there is an
12
equally robust discussion of the First Amendment. See, e.g., S. Shapiro, K. Geller,
T. Bishop, E. Hartnett, & D. Himmelfarb, Supreme Court Practice 4.4(e), p. 249
(10th ed. 2013) (While this Court decides questions of public importance, it decides
them in the context of meaningful litigation.) (quoting The Monrosa v. Carbon
Black Export, Inc., 359 U.S. 180, 184 (1959), and describing Supreme Courts
approach to deciding whether a true conflict exists).
5

The conclusion reached in Wellons is also inconsistent with this Courts
precedent. See Pell v. Procunier, 417 U.S. 817, 822 (1974) (recognizing that a
prisoner retains those First Amendment rights that are not inconsistent with his
status as a prisoner or with the legitimate penological objectives of the corrections
system);
6
Globe Newspaper Co. v. Super. Ct. for Norfolk Cnty., 457 U.S. 596, 604
(1982) (explaining that the purpose of the First Amendments right of access is to
ensure that the individual citizen can effectively participate in and contribute to our
republican system of self-government) (emphasis added). The Eleventh Circuits
cursory conclusion in Wellons provides no reason to vacate the conditional
injunction entered here.

5
Even if this Court determines that the Court of Appeals decision here conflicts
with the Eleventh Circuits decision in Wellons, that is no reason to vacate the
Court of Appeals stay and allow Mr. Woods execution to proceed under a cloak of
secrecy. Rather, a circuit split would weigh in favor of the conditional injunction
remaining in place in order for this Court to resolve that split on the merits. See
Sup. Ct. R. 10(a).
6
This is the position that Mr. Wood has taken since the inception of this case, see
supra n.1. Petitioners have not disputed that assertion.
13
5. In sum, Petitioners conclusion that the Court of Appeals decision will
have wide-ranging effect on all government agencies and information related to any
policy decisions of the agency, (Appl. at 15) is overstated, hyperbolic, and untrue.
The court followed its own and this Courts precedent to reach a narrow holding
related only to the information Mr. Wood sought.
III. The Ninth Circuit applied the complementary considerations from
Press-Enterprise II to determine that access to documents that are
inextricably intertwined with historically open execution
proceedings directly contributes to the constitutionally protected,
informed discussion of governmental affairs.

1. The First Amendment right of access attaches specifically where (a)
proceedings or records are historically open to the public and (b) public access to the
specific proceedings or records plays a significant positive rule in the functioning of
government. Press-Enterprise II, 478 U.S. at 8 (citing Globe Newspaper Co., 457
U.S. at 604). Moreover, this Court has recognized that some proceedings do not
have a historical counterpart, but given the importance of the particular
proceeding, the traditional right of access still applies. Press-Enterprise II, 478 U.S.
at 11 n.3. The Court of Appeals correctly analyzed Press-Enterprise IIs
complementary considerations and held that Mr. Wood met the preliminary
injunction standard. (App. A at 15-24.)
2. Contrary to Petitioners assertion, neither Richmond Newspapers, nor
this Courts jurisprudence following it, requires that a history of openness must be
solely of the governments own making. (Appl. at 17.) This Court has relied upon
14
broad and wide-ranging analyses of historical openness, noting that it is a
complementary consideration to the role open access plays in the functioning of
government. Press-Enterprise II, 478 U.S. at 8; Richmond Newspapers, Inc. v.
Virginia, 488 U.S. 555, 565-572 (1980). Nowhere has the Court held that historical
openness turns solely on the governments choice. Indeed, what has made the
Courts First Amendment jurisprudence, and the instant action, necessary is the
governments unwillingness to provide public access to historically open
proceedings.
The Court of Appeals appropriately relied on historical information regarding
executions and the type of information requested heresuch as the manufacturer of
ropes or gas chamber, which has been open to the public as part of the execution
proceeding. (App. A at 16-17.) The Court of Appeals also considered the more
recent history of Arizona and other states that have released information about the
drugs used in executions. (App. A at 18.) Moreover, the Court of Appeals
appropriately relied upon historically open information related to the qualification
of the executioner. (App. A at 17.) This is entirely consistent with this Courts
precedent.
The Court of Appeals also appropriately considered whether information that
Mr. Wood requested plays a significant role in the functioning of execution
proceedings. (App. A at 19-24.) As this Court has held, the constitutionally
protected discussion of governmental affairs [must be] an informed one. Globe
15
Newspaper Co., 457 U.S. at 605 (emphasis added). In granting the conditional
injunction, the Court of Appeals explained that more information about the drugs
used in lethal injections can help an alert public make better informed decisions
about the changing standards of decency in this country surrounding lethal
injection. (App. A at 22.)
7
Indeed, knowing both information about the drugs to be
used and the qualifications of the individuals performing the executions will allow
the public to discuss whether the State is using safe and reliable drug
manufacturers, and will give the public more confidence that executions will be
administered safely and pursuant to certain standards. (Id.) The Court of Appeals
well-reasoned and limited holding ensures that the Mr. Wood, as a member of the
public, will receive this information and be able to participate in the discussion
before the State executes him.
3. Further, Petitioners argument herethat disclosure of information
inhibits the State from carrying out executions (Appl. at 19-20)was rejected by the
Court of Appeals because there is no evidence in the record to support [that]
claim[.] (App. A at 23.) In fact, the opposite is true. As the Court of Appeals
noted, Arizona has continued to effectively administer the death penalty using

7
Chief Judge Kozinski also weighed in on the public debate and discussion of lethal
injection as a method of execution. (App. F at 3) (expressing the view that [t]he
[lethal-injection] enterprise is flawed. Using drugs meant for individuals with
medical needs to carry out executions is a misguided effort to mask the brutality of
executions by making them look serene and peacefullike something any one of us
might experience in our final moments.).
16
domestically produced lethal injection chemicals. . . . (App. A at 23.) The First
Amendment right of access cannot be eroded based on Petitioners unsupported
speculation that openness would frustrate its ability to carry out an execution. See
generally New York Civil Liberties Union v. New York City Transit Auth., 684 F.3d
286, 303 (2d Cir. 2012) (internal citations omitted) (The Transit Authority suggests
that the possibility that some respondents would be dissuaded from contesting their
notices of violation in person suffices to outweigh any potential benefits of publicity.
But far from showing that this danger is real, the NYCTA has offered no empirical
support for th[is] claim. Like the Sixth Circuit, we do not believe speculation
should form the basis for . . . a . . . restriction of the publics First Amendment
rights.). This is especially so in light of the fact that Arizona has been able to
carry out thirteen executions since October 1, 2010 (i.e., ADC has executed every
prisoner for which the State of Arizona has requested a warrant).
8

Moreover, without evidentiary support, Petitioners assert that information
about the source of the drugs is at best, of marginal relevance. (Appl. at 19.)
But it is not for the government to determine what the public discussion will

8
See Ariz. Dept Corrections, Executed since 1992, available at
http://www.azcorrections.gov/inmate_datasearch/Minh_NewDeathRow.aspx (last
visited July 15, 2014). Jeffrey Landrigan, October 26, 2010; Eric King, March 29,
2011; Donald Beaty, May 25, 2011; Richard Bible, June 30, 2011; Tom West, July
19, 2011; Robert Moorman, Feb. 29, 2012; Robert Towery, March 8, 2012; Tom
Kemp, Apr. 25, 2012; Samuel Lopez, June 28, 2012; Daniel Cook, Aug. 8, 2012;
Richard Stokley, Dec. 5, 2012; Edward Schad, Oct. 9, 2013; Robert Jones, Oct. 23,
2013.
17
determine to be of importance. This nation has a profound national commitment to
the principle that debate on public issues should be uninhibited, robust, and wide-
open, New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964) (emphasis added),
even if that debate include[s] vehement, caustic, and sometimes unpleasantly
sharp attacks on government and public officials. Id. It is not for the government
to place prior restraints on information based on the governments (unfounded)
assessment of the value of that information. Any suggestion to the contrary runs
counter to the commitment of uninhibited debate on public issues.
4. This Court should not vacate the conditional injunction because the
Court of Appeals decision properly applied this Courts analysis from Press-
Enterprise II to the specific facts raised.
IV. The Court of Appeals applied the correct preliminary-injunction
standard, which is consistent with this Courts precedent.

1. The Court of Appeals decision to issue a conditional injunction is not
in conflict with Hill v. McDonough, 547 U.S. 573 (2006). To the extent that
Petitioners suggest that the serious questions test lowers the burden because it is
separate from the likelihood of success on the merits test, the Court of Appeals
recently rejected that proposition when an Arizona death-sentenced prisoner made
that exact argument: To the extent Lopez argues that the serious questions going
to the merits consideration is a separate and independent analysis from the courts
assessment of Lopezs likelihood of success on the merits, Lopez misunderstands our
18
precedent. Lopez v. Brewer, 680 F.3d 1068, 1073 (9th Cir. 2012) (emphasis added).
Thus, the serious questions test is simply a variation of the likelihood of the
merits test based on the claim before the Court. And the Court of Appeals here
explained this in its opinion. (App. A. at 7-8.) Contrary to Petitioners argument,
the Court of Appeals properly analyzed Mr. Woods claim under the preliminary-
injunction standard and under Hill.
2. Moreover, the dissent from the denial of rehearing en banc takes this
case to an extreme beyond its actual holding. The Court of Appeals limited decision
in the instant case does not mean that a death-row prisoner will never need to show
a likelihood of success on his claim because the nature of his sentence inherently
tips the balance of hardship in his favor. (Appl. at 21) (quoting Callahan, J.,
dissenting, App. G at 4.) Nowhere in the Court of Appeals opinion did it determine
that the nature of the sentence itself was cause for injunctive relief. Rather, it
considered the four factors set forth by this Court in Winter v. Natural Resources
Defense Council, Inc., 555 U.S. 7 (2008), and balanced them accordingly. In fact, in
determining the irreparable harm that Mr. Wood would suffer if injunctive relief
were not granted, the Court of Appeals relied upon this Courts precedent, noting
that [t]he loss of First Amendment freedoms, for even minimal periods of time,
unquestionably constitutes irreparably injury. (App. A. at 24) (citing Associated
Press v. Otter, 682 F.3d 821, 826 (9th Cir. 2012), which cites Elrod v. Burns, 427
U.S. 347, 373, (1976)). Thus, it was not the fact of Mr. Woods sentence, but several
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factors combined that allowed the Court of Appeals to properly grant an injunction.
(See App. A at 26) (Given the small impact the injunction will have on the state,
the importance of First Amendment rights generally, and the critical importance of
providing the public with the information it needs to debate the most severe form of
punishment that exists, we conclude that the balance of equities tips sharply in
Woods favor.).
Conclusion
For the reasons stated, this Court should deny Petitioners request to vacate
the conditional injunction that was properly entered for the limited purposes of this
case.
Respectfully submitted: July 22, 2014.

JON M. SANDS
Federal Public Defender

s/Dale A. Baich
Dale A. Baich (Ohio Bar No. 0025070)
Robin C. Konrad (Alabama Bar No. 2194-N76K)
850 West Adams Street, Suite 201
Phoenix, Arizona 85007
(602) 382-2816 voice
(602) 889-3960 facsimile
dale_baich@fd.org
robin_konrad@fd.org

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CERTIFICATE OF SERVICE
I hereby certify that on July 22, 2014, I electronically mailed this Opposition
to Application to Vacate Stay of Execution to the U.S. Supreme Court to be lodged
for filing.
Copies of this motion were electronically mailed this date to:
Jeffrey A. Zick
John Todd
Assistant Attorneys General
Chief Counsel Capital Litigation Section

Attorneys for Petitioners


s/Chelsea L. Hanson
Legal Assistant
Capital Habeas Unit