right we will call the last case on the calendar which is coleman versus brown if and i guess i should say since both of you are we're not going to have you come up twice ok so why don't hear first from  counsel for well how are we going your first from counsel for the state right now that's you ok that's what i was trying to figure out who i'm looking at and i don't know how much time you'll need but we're hoping that maybe twenty five minutes per side will be enough in the combined case if you need a little bit more obviously you've seen we're not going to cut you off but we'll call you up once so say everything you have to say on both appeals and then we'll hear from counts for the plaintiffs and then you have some time for about good morning or honors may please the court kevin both for defendants i'd like to reserve five minutes for rebuttal over the last two decades the state of california has put into place a comprehensive system for the delivery of mental health care for nearly forty thousand inmates including crisis bed and inpatient levels of care that was the original objective of the judgment in this case and the orders on appeal now illustrate how this action is shifted from that systemic goal to policing the procedures and policies regarding from the what's called the program guide which is a compendium of protocols and policies regarding nearly every aspect of mental health care treatment in prisons and these orders which mandate one hundred percent compliance with the program guides transfer timelines is inconsistent with the eighth amendment and this is the prison litigation reform acts restrictions on prospective relief and should be reversed now this first appeal concerns the program guides twenty four hour transfer timeline for mental health crisis beds and the district court's orders requiring the state to do two things first to attain for the first time one hundred percent compliance with that transfer timeline and secondly to refrain from implementing two operational policies that would affect how the timeline is measured now because courts may not order prospect of relief that is not necessary to correct a constitutional violation the central question as presented in these appeals is whether anything less than permanent one hundred percent compliance with transfer timelines amounts to cruel and unusual punishment on the eighth the under the eighth exceptions the court in its orders stated that he believed that at the very least there were two situations that should be accepted which involving more urgent medical needs first and when an inmate is out to court for some other reason and those exceptions essentially recognize that there are some circumstances where the timeline simply shouldn't apply or the state would be caught in a catch twenty two either are required to disregard the timelines or disregard another court's order more m you remember twenty four hour now right now we're talking about the twenty four hour in those there's been discussions and negotiations about the exceptions but they haven't become formalized and i'm sorry  one would proceed in the future and that there isn't there wasn't it's not clear what troubled me about that was that those of those discussions which could have led to somewhat of a different ruling so to speak were cut off by the notice of appeal because the judge said we got to stop since the notice of appeal the president of jurisdiction so it wouldn't do we actually know what the final outcome of these discussions would have been and what the final planning guide would have looked like i don't think we know exactly what the final exception would look like in the program guide those except for the two specific ones that i mentioned before and then a third that is still trying to be worked out with respect to things that are quote unquote beyond defendants control and what or is this is a final order in that sense i believe it is a final order in that sense regardless of the specific delineation of the exceptions because all the exceptions really do establish the parameters under which the state will be required to achieve one hundred percent compliance the core was explicit about what it believed it said one hundred percent subject to these limited exceptions that the court specifically caution should not swallow the rule and within those within those parameters the state is still being held to a one hundred percent compliance standard that simply an injunction injunction can always  being required to essentially operate the transfer timelines or to administer them in a flawless way so that there can only be you know any deviation in the just records of you would be  does have discretion in crafting certain remedies but what the court cannot do is grant relief that would exceed the constitutional minimum and what the court said here is that the twenty four compliance full and permanent compliance with the twenty four hour timeline w necessary to satisfy the eighth amendment so essentially the court is saying if you fall below any deviation that falls below this twenty four hour time line is is a eighth amendment violation and that's that was  will conclusion and it disregarded the correct analysis as necessary under the eighth amendment that there must be both objective harm and a subjective intent component and by implementing the by imposing th there is she could proceed or he could proceed as if there was one today in effect that is what the district court said and did based on what the court said was the history you ever did you ever or was that just an injunction that was ordered without opposition i mean what is the status of this planning guide or whatever it is not a consent decree your honor the program guide was developed with the assistance of the special master the parties the defendants plan for creating the system to deliver mental health care that we believe exceeds what the eighth amendment requires and that plan was put together into the form that it is now a large operational manual essentially and it's been changing over time now in two thousand and six there was an order that with the district court entered to immediately implement the provisions of the program guide however that since that time the program guide has itself changed and in the program guide there is no there is no requirement that the state must  perfectly adhere to all the transfer timelines or or any of this specific and grenier details as part of that order the program guide itself acknowledges that there will be delays in transfers to higher levels of care and it specifically provides terms that address how and the manner in which interim cares to be provided how wait lists are going to be managed and so the program got itself contemplates that there's going to be these delays which means that what the just record that has done here by imposing this one hundred percent compliance standard is really is doing something new hadn't been done before well i guess are you arguing that that that the court should have said you only have to comply with ninety percent you know just because that that seems rather arbitrary would s then and then if there are instances in which there is not compliance there could be a question as to whether or not there should be some kind of sanction we're not asking that the corps announce a specific numerical benchmark what the court should have done below is it should have conducted the correct analysis under the eighth amendment if the court's going to grant an injunction grant prospective relief then under the p l r a it must determine that there is a  current and existing constitutional violation and i found it in this particular case though however you're not you're already it didn't do the correct analysis in reaching that conclusion where the court said was it if you use the program guides terms it essentially conflated deviations from the program guide with an eighth amendment violation maybe you can respond to the argument that that ship has sailed because that's my view is that this is now the district court maybe had discretion under law of the case doctrine to revisit that but this is way way past that stage you all had an opportunity in two thousand and thirteen probably in two thousand fourteen as well to take that up the fact you did appeal the two thousand and thirteen denial and you then you abandoned or something happened and we never got so i just think that that ship has sailed and i don't know why for one second we would think about diving back into that you you all came up with a program guy lays out the what your view of the state was necessary to meet them and to secure the at the moment while ation and the district court in those prior order said that the program guide basically can't rely on old findings and old determinations this cording gilmore said that in order to show a current ongoing constitutional violation it can't be based on the prior record and must be based on the current record and in doing so in relying on those old findings as well what the court did was it didn't the court didn't previously say that the program guide is the eighth amendment florrie the constitutional floor the court said that the eight the program guide is grounded in defendant's understanding of the eighth amendment and that's not the same thing as saying that a deviation from the program guides timelines or its terms is constitutional violation that justifies prospective relief but i thought that let's just talk about the crisis beds right that it was agreed that there were there had been and i think violation in the sense that it was taking too long between the time of referral to the time of placement or whatever it is i don't have all the terminology down but you know what i'm talking about and i thought it was concluded with the state's acquiescence that twenty four hours was the period that essentially was necessary to cure the  violation that had been occurring right and so that was you you all were ordered to make sure that everybody what the referred within twenty four hours and then in as of these twenty seventeen i can't remember the numbers but there were some substantial number of inmates who it was taking longer than that so you all morning compliance with what the program guide spelled out and i don't know what was a district court supposed to do other than say look you need to comply with this i'm i'm  serious this wasn't you know we're just playing games here i recognize there are going to be situations that are outside of the state's control and we'll work on developing exceptions for those but in all other cases you do have to do it within twenty four hours i don't understand what's with with that i think that no one is disputing that twenty four hours is a reasonable amount of time to transfer these inmates who have been referred but the problem is that what the court has done is to announce a constitutional compliance standard and if it if falling below one hundred percent compliance is sufficient to justify prospect of relief then that's also the standard that the state has to meet in order to terminate relief and in a case like this where you have a complex injunction and where would the state is contending with this it's a massive system that deals with many moving parts and on a monthly basis there are almost fifteen hundred crisis bed referrals and fifteen thousand crisis bed referrals per year that a deviation simply falling below a one hundred percent threshold could constitute a constitutional violation that's a constitutional standard that's it's it's unreasonable and it's not supported by the proper caliber many people commit suicide in the interim well that's just a cost of doing business here i mean what is the district court supposed to do if not say no i'm serious you must do this that is what you all agreed to in and that was the terms were in most cases now come up with the the description of the very small subset of cases where you'll be excused because everyone recognizes we're not trying to be unreasonable what's the alternative that you think that this record there were less intrusive means for the court to effectuate the time line compliance and defendants presented various proposals and processes that they were implementing and in turn including increasing capacity and taking additional remeasure they were going to accelerate time frames and the court can oversee that and require those things be done but what it cannot do is announce that one hundred percent compliance is going to be the constitutional standard that anything any deviation that falls below is going to but it's not any in an absolute sense right because there are the exceptions that about right so why hasn't if you're just going to carve out the small subset of cases in which due to circumstances essentially beyond your control the more time you was needed why isn't it ok to insist that no you are going to comply and all the rest of the cases that isn't that what always happens when somebody is ordered to do something of this sort of programatic nature i think that because it still is overbroad in terms of what that one hundred percent requires and ultimately the state can only implement system through its through people and through its actors and their professionals but there's still so that the standard is too high then that going back to what judge walk you didn't want the twenty four hours to include transportation that's correct and you didn't want and you wanted to be able to have a evaluation made by a professional the need because many people who were sent actually was sent back as not needing that that care that those with those were the issues that you really had problems with am i right yes around that is correct so those are the two things that bother you those two policies the way that these came about the the court asked for  the parties to talk about obstacles to compliance and one of the main obstacles to affecting timely transfers is the problem of rescissions which is what you were mentioning and that goes to the issue of whether where there is a professional evaluation should be made that's correct brings me to question just as a point of information how was it the term and initially that these people who were talking about need this is that how who decides initially who has to be moved within twenty four hours a clinician makes that decision initially or clinician what kind of clinician a doctor psychiatry is or a psychologist so work or do you want in terms of the third the third objection that you have will the problem is that in instances where there is no on site clinician and then the initial assessment cannot be done face to face and in many instances what happens is a nurse simply relays information over the phone to the on call clinician who then makes a determination of the referral and during these which usually happens in these after hours settings it contributes to this high level of rescissions that what the what dr presented in our chief psychologist testified to is that face to face evaluations are hours if they happen at night and then clinicians whenever an inmate is placed into what's called alternative housing for when they're waiting for transfer to a crisis bed they're required to be seen every day a clinician so at the very least they would wait until the following morning to have an assessment that's done and then there's a horrendous description of summer where you call alternate housing and district i think in one of the district cour opinion is that description of current alternative housing or is that what existed before i know you're on that first though those things were from before there was in the suicide expert's report but in each of those instances what those were outlier situations outlier where the policies were not being followed for alternative housing and in addition in a system where we're looking at fifteen hundred crisis bed referrals every month these isolated incidents don't establish that there was a systemic problem here with with the alternative housing program so let me and forget about the findings from twenty five years ago or fifty years ago whatever but if if we were just looking at it as a new case the word goes on today would not be an eighth amendment violation is that you argument yes we we could stand that that's true that as and where not the way that the system currently operates is not systemically denying inmates ready access to care simply because also required in the supreme court's precedent it's clear that cruel and unusual punishment subjective intent is inherent in the eighth amendment scroll an unusual punishment clause so it would essentially your argument  that the district court is stopping saying you're a stop because of what happened cade's ago and you agreed to remedy those conditions that exist then you can't come back and say there's no more eighth amendment violation and therefore you're a man than affected by this twenty four hour period in a way your honor the what the court is what the court has said is that because of what has happened in the past then it's no longer necessary to do a further analysis but it's a long time and made yes your honor and specifically in the inpatient context the the court said that remarkable accomplishments and that defendants were in compliance said that it wasn't enough to  of all relief but it said that the defense had come into compliance with respect to that if you want to address that all the other appeal yes briefly your honor just briefly it the other appeal which deals with in patient timelines and involves some of the same types of issues about one hundred percent compliance and whether that's required into the eighth amendment or just as initial matter note that there i believe there is jurisdiction in this obligations so before the chart that i'm picturing in my mind it didn't even have in for the ten and thirty day it didn't even have the in most cases qualifier that you have for the twenty four hour time limit it was just you will comply with this set schedule of deadlines right there was so you were just and that this recorded been incredibly patient with you all waiting for you to come and into compliance it was all kinds of improvement then backsliding and at the end of the day there was a big gap between what you will had agreed to do and what was being done and all the district court said is time's up you are going to comply and apparently what i've done before hasn't been good enough so they're going to be sanctions and i guess i don't see how is that a new injunction be delays as well in the inpatient context now this is the other thing that is important to note is that the prior orders in the district were referred to these all were relating to orders to reduce or eliminate the weightless and defendants produced plans to reduce and eliminate those way listen they did that is that the district court acknowledged in the twenty thirteen termination order but what has happened here is that and what those orders show is that something less than one hundred percent compliance was acceptable to meet the constitutional standard reducing the wait list to an acceptable level not eliminating the wait list completely which is what the hundred percent compliance standard that th now that's the effect of what the just words done is to change what those previous orders had meant so we had that is another reason that we have something new here the relief is different than it was before and the the exceptions in addition i would say also demonstrate that this is new relief the fact that exceptions have to be articulated and negotiated and then incorporated into the program example on male acute psychiatric program it says the average daily census for twenty seventeen was three twenty eight point three and the beds needed with three sixty five through this it doesn't seem to me that this and this is a california prison system with thirty eight thousand people it doesn't seem to me how significant are these deviations now i guess i should like to ask the question you're probably so maybe i would just say that it that it's a small population but it's a large and complex system requires a lot of resources to administer and so as i mentioned we're looking at it in the inpatient context there's some twenty two hundred  system itself so while it's a small percentage of inmates it is a large system and a complex system ok thank you so we'll give you some time for about oh let's hear from counsel for the pla or where the findings of constitutional noncompliance were made twenty five years ago and then never revisited this court on defendant's motion to terminate specifically found in two thousand and thirteen that the constitutional violation  just report and it found that the constitutional violation of the failure to provide timely access to adequate care was ongoing the supreme court in two thousand and eleven in this case found that same constitutional violation remained ongoing and current and there was more than sufficient evidence before the district court that those violations were still causing harm and that they had not been abated defendants have never moved under rule sixty or the p r a to terminate  modify any aspect of timelines or the orders at issue in these appeals they also have never remediated or offered any other alternative about how they might remedial these violations even though the district court know it would not only push remediation of the constitutional violations even further down the line but would actually exacerbate harm to the point of class and i'm happy to talk to you about exactly why that is but i also wan clear up a misperception about what the rescissions actually results and these are not people that are in crisis beds that we are discussing these are people in alternative housing they're not whole thing up beds that are going to be used for other people this is all before anybody gets to a crisis but ok so we're talking about administrative staff and the workload for them we're not talking about taking up precious crisis beds so that was not at issue there and more importantly not only did the district court evaluate all of the evidence of why expanding the amount of time in alternative housing was bad she took new testimony about what it was and some of the testimony that was before her w california state auditor report from twenty seventeen the same year saying that the defendants had failed to properly implement their suicide prevention policies their suicide rate remained sky high far above the national average and they also had the suicide prevention expert report literally filed a week before the hearing on this finding that people were still being housed in quote horrendous outrageous settings while they were awaiting crisis care they receive no treatment in those places there were people strapped to grannies for three days who were suicidal who urinated all over themselves because they were waiting for crisis care there were people that were not observed as they were required to be by defendant's policies who killed themselves and i'll just note that both of those are remarkably similar to the circumstances that the supreme court described in two thousand and eleven when they described people being held standing room only while suicidal in cages over night urinating on themselves not receiving treatment and when they also describe somebody who committed suicide in the record before the supreme court who killed themselves while they were supposed to be observed in alternative that as evidence of the ongoing failure to comply with a command eighth amendment command to provide timely access to adequate care they found that that that specific violation in citing that evidence remained ongoing so it's exactly the same constitutional standard that the district court applied looked at the evidence before it and determined nothing had changed and moreover defendants like to say that those are outlier examples and twenty seventeen the suicide prevention expert found that forty percent of the institutions here were veuve were not compliant with their suicide prevention policies that's not an outlier forty percent of the institutions were not so that's the evidence before the district court and moreover there is other evidence and the district court was allowed to look at this the owns the supreme court in the pot of you brown case and the ninth circuit in the armstrong two thousand and fourteen case said that it is entirely permissible and appropriate for the district court to look at earlier holdings and findings that are in the record when the court is managing a long complex remedy there was plenty of evidence in the record that mental health crisis beds that delays in crisis care make people sick or it increases the suicide rate it causes people to be held in settings that cause them to d compensate and sometimes falsely recant real suicidal ideation which again contributes to the very high suicide rate in the system and all of that evidence was before the court they have never been in compliance with the twenty four hour transfer timeline never and the district court did not abuse its authority in finding not only could it force them to finally come into compliance if they are willing not only that but not to expand the harm to the plaintiff class by allowing them to further delay the treatment that people receive people don't receive any mental health treatment while they're in the alternative housing there is evidence in the record of that brzezinski did testify to that they don't receive any care while they're sitting on a van and that is uncontested so the burden was on the state to establish that something has changed that would make it appropriate for them to expand the amount of great it can there are there are only a certain number of crisis spread units at certain prisons in the system and there are cases where they have travelled eight hours on a van to a crisis bet so it can be a long time and moreover the state even if it's a one hour drive the state has agreed that it is clinically appropriate for people to receive care in a licensed unit for suicide audi within twenty four hours they can make their staff account for that one hour in those twenty four hours they just told you up here that twenty four hours is the clinically appropriate standard they have never again they've never they're there are internal processes in the program guide itself they can administratively change things in the program guide they can move before the court but rule sixty always available to them it's an equity court the court is flexible they have to meet their burden of showing that their alternative is equally effective it were mediating existing constitutional violations and they just didn't do that that's reviewed all of the factual findings are reviewed for clear error and it's an abuse of discretion standard and there's just no question the district court had more than enough evidence before it rulings can i ask you about the rescission because i thought that this report made a factual funny that actually there wasn't any evidence that there was a correlation between the not being able to do the face to face that's correct so there actually is nothing in the record saying that there is anything showing that it is more effective that you basically get a better read of the person to get a more accurate sense of whether they're suicidal if you review them in person there or there was a fundamental mismatch between the data that was provided to the court in support of that notion and the actual reality on the ground defendants provided evidence looking comparing the rate from five pm to five am and then you know the alternative five am to five pm and said it's much higher at night the problem with that however is that there is no not a single prison in the state of california that operates from five pm to five am with no clinical staff or that opens at five am for business and has clinical staff so there is nothing in the data that actually maps to the allegation or i should say to the modification and the rationale for it that the state provided so there's no affirmative evidence that shows that there is anything that is better about and in person clinical assessment that would actually reduce the rescission rate and again that's not people that are in crisis beds those are people that are waiting in alternative housing so we're purely talking about administrative staff functions so unless you that that has already been settled and i'm not going to revisit that given what was decided in twenty thirteen and twenty four i don't necessarily think that that's exactly accurate because the court did cite its earlier findings again this is this is a chance for defendants to show that something's changed so the standards remain themselves this is essentially an enforcement motion she wasn't required to make new findings of an ongoing constitutional violation because i'm speaking as a one hundred percent compliance portion  here because she was merely enforcing an existing valid order that defendants have never moved to modify or terminate so and moreover there rather than always one hundred percent it was i'm not aware of most orders that i've received or quoted from yes i'm saying that i'm not aware of most district court orders saying or even implying that you can choose how often that you want to comply typically when you're ordered to do something in my experience and you're just record judge who know a lot more than i do but typically you're required to comply and that's it and moreover they've had plenty of time to come into compliance and at the time of the district court's order they were twenty five percent of the time they were guide was put into place in the system overall i think that there has been some very good work i think to get out of this case which is what the district courts mission is she is looking very affirmatively to find ways to encourage defendants to be compliant and remain compliant with the benchmarks that they develops for establishing the constitutional remedy in this case so she's very focused and has been very dedicated in essentially saying here are the standards you've developed them and i've ordered you to comply with them for decades you've never done it so start doing it and that's the mandate of the court and i think that's what the supreme court requires her to saying that we had generally agreed to three categories we filed this with the court the categories were people that are out to court people that are out for medical conditions that are more sort of significant or more important at the time than the mental health crisis and a general other category that literally covers any circumstance that's outside the state's control and it also said that we we were hadn't refined the exact language in the program discussions these discussions and i've been stopped and the last category you mentioned was a general one it might have been adopted we might have been reviewing an order that's different from what was from the from what we're reviewing because progress was being made and in fact the last the last clause was a sort of an open ended safety valve i'm just using right provided you understand we're right so are we are we actually reviewing what would likely have been the final outcome if your discussions had not have been interrupted by by the filing of a notice of appeal i think there is a question as to whether or not the portion of the october tenth order that pertains to hundred percent compliance is appropriately before this court under president jurisdiction principles i don't think there's any question that the portion that refused to allow defendants to modify the remedial plan with regard to transport time and there in person versus something yeah i mean we've already like i said stipulated to the court that we've agreed to these three exceptions they are by the way the same size and when you describe seems to me entirely reasonable but that's not we're where we're being asked to review because it was of those three exceptions that i described that we stipulated to that the court didn't formally order because we were still working on them those are the same three stipulate same three exceptions that we agreed to in the inpatient context which were court ordered so i don't think there's any question the court would have approved those three no i agree there may have been others but the point is that there is no perfect compliance standard here there are a whole host of exceptions that defendants can utilize and that they do utilize t excuse tardiness that the exceptions don't cover circumstances that are wholly in their control when they've had twenty years to figure out how to comply with these standards that are again their own standards this is the first time that the and they just report found and after after significant evidence testimony in the march twenty fourth order which preceded and was integrated into the april nineteenth order found that defendants had many many options and that it was feasible for them to comply and defendants don't contest that it is they agree that it is feasible for them to comply with the inpatient transfer timelines so they don't challenge that factual finding nor could the right to express your honor thank you yes so what what the point i was planning to make is that the history of this case and this is another great reason to defer to the district court the history of this case is that the inpatient transfer timelines sometimes get better sometimes get worse but they it's a persistent chronic cycle and so when the district court found that they were again creeping up into the dozens and then into the sixty's and i believe it go around one hundred people waiting past transfer timelines the district court put a stop to it and said look we need to finally fix this problem you can do it it's feasible you don't challenge that finding just do it and i hundred percent about all the mechanisms you want to do that just do it and get it done and then we can put this portion of the case behind us so the court is really trying to drive toward resolution of this case and the contempt findings you know the preliminary contempt findings obviously there was never a hearing where they were actually found in contempt or sanctioned another reason this is not an appealable order but her methods are working and they've been in compliance with the transfer timelines for a year at this point and that is unprecedented in this case so the district court knows what she is doing and there's plenty of case law in armstrong in this case or i'm sorry in this court that says the district court managing complex position to know that but i do want to point out just one more bit of essentially harm respect to the inpatient transfer timelines and that is as the district court very extensively laid out not only is it a perpetual cycle in this case but that perpetual cycle trickles down to every level of care so when there are delays at the top there are delays in m h seabees there are delays in every other level of care down the stream and all of that exacerbates and makes people actually sicker and it also causes clinicians to stop referring people because they know it's going to be a long time i may as well just keep them here and try and treat them as best i can locally so all of those are evidence of harm and i think there's no question that the district court found that the policies and procedures that the state is putting into place didn't were not sufficient to obviate that substantial risk of serious harm under the eighth amendment so to the extent that  subjective intent analysis is before this court there's more than enough of a record to show that you know in taking the long way to build new new crisis beds when they could have taken the short way when they had plenty of bad plans that were telling them for years in advance that they were going to be short on crisis beds for failing to transfer people to end patient care on time when it was feasible all of that is more than sufficient to establish deliberate indifference and the eighth amendment violation here to ask you who decides this i mean who is the policy maker here is it the attorney general is it is it the governor who who may who is i guess instructing you to take the positions that you're taking i just want and i'm just trying to understand i mean california after all isn't alabama you mean the legal positions yes the positions that you're taking now who who was the policymaker i believe that it would be from the the defendants in this case the governor the secretary of the department you believe or you know yes i believe those are the those are the officials that are being sued in their official capacity and the polic the policies that are that are made those are things that are at this in the mental health policies but i think if you're asking about the legal position the specific legal positions then it's a this is a collaboration with executive staff just i would just address the exceptions very quickly in just carmen your your concern about the interruption regarding the with the exceptions and how it interrupted and i would just say that the the exceptions and the fact that the last category is somewhat still a little bit amorphous is not enough to make the order at issue non final what the district court did is it announced its constitutional ruling and in the post judgment context we give the this court gives a practical construction of finality to orders because it's not clear whether what whether there will be some further order down the road will be appealable in order to be to hold you in contempt order afterwards that we would be able to appeal so we wouldn't have the ability to effectively appeal thank you counsel the case just argued will be submitted and to be clear we're submitting both seventeen dash one seven three and seven one six zero eight zero court is in recess until tomorrow