1 BINGHAM McCUTCHEN LLP KAREN KENNARD – 141925
2 KRISTEN A. PALUMBO – 215857 Three Embarcadero Center
3 San Francisco, California 94111-4067 Telephone: (415) 393-2000
4 PRISON LAW OFFICE
5 DONALD SPECTER – 83925 General Delivery
6 San Quentin, California 94964 Telephone: (415) 457-9144
7 ROSEN, BIEN & ASARO, LLP
8 MICHAEL W. BIEN – 096891 GAY CROSTHWAIT GRUNFELD – 121944
9 MEGHAN R. LANG – 221156 155 Montgomery Street, 8th Floor
10 San Francisco, California 94104 Telephone (415) 433-6830
11 YOUTH LAW CENTER
12 SUSAN L. BURRELL – 074204 CAROLE SHAUFFER – 100226
13 CORENE KENDRICK – 226642 417 Montgomery Street, Suite 900
14 San Francisco, CA 94104 Telephone (415)543-3379
15 Attorneys for Plaintiffs
16

17

UNITED STATES DISTRICT COURT

18

EASTERN DISTRICT OF CALIFORNIA

19

20 L.H., A.Z., D.K., and D.R., on behalf of themselves and all other similarly situated
21 juvenile parolees in California,

22

Plaintiffs,

23 v.

No. 2:06-CV-02042-LKK-GGH
FIRST AMENDED CIVIL CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

24 ARNOLD SCHWARZENEGGER, Governor, State of California, JAMES E. TILTON,
25 Secretary (A), California Department of Corrections and Rehabilitation (“CDCR”);
26 KINGSTON “BUD” PRUNTY, Undersecretary, CDCR; BERNARD
27 WARNER, Chief Deputy Secretary of the Division of Juvenile Justice; JOE MONTES,
28 Director, Division of Juvenile Parole; DENNIS

FIRST AMENDED CIVIL CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

1 DULAY, Acting Deputy Director of the Division of Juvenile Parole Operations; JOHN
2 MONDAY, Executive Director of the Board of Parole Hearings (“BPH”); JAMES DAVIS,
3 Chair of the BPH; JOYCE ARREDONDO, PAUL CHABOT, JOSEPH COMPTON,
4 SUSAN MELANSON, and CHUCK SUPPLE, Commissioners of the BPH assigned to hear
5 juvenile matters; CDCR; DIVISION OF JUVENILE JUSTICE; and BOARD OF
6 PAROLE HEARINGS,

7

Defendants.

8
NATURE OF ACTION 9

10

1. Plaintiffs are a class of over 4000 juveniles who have been or are at imminent

11 risk of being wrongfully and unconstitutionally deprived of their liberty in connection with the

12 granting, extending and/or revoking of their parole in California. The members of the plaintiff

13 class are being denied due process under the Fourteenth Amendment to the United States

14 Constitution, as interpreted in Morrissey v. Brewer, 408 U.S. 471 (1972) and related decisions.

15 In addition, members of the plaintiff class are being denied their right to counsel under the

16 United States Constitution, as interpreted in Gagnon v. Scarpelli, 411 U.S. 778 (1973) and

17 related decisions. The members of the plaintiff class are also being denied the equal protection

18 of the laws under the Fourteenth Amendment to the United States Constitution.

19

2. The unconstitutional treatment of juvenile parolees in California is particularly

20 deplorable given that adult offenders in California receive the right to counsel in parole

21 revocation hearings, as well as significant due process protections in revocation proceedings,

22 pursuant to a Stipulated Order for Permanent Injunctive Relief entered in Valdivia v.

23 Schwarzenegger, No. S-94-0671 (E.D. Cal.) (Karlton, J.) (hereinafter “Valdivia”) on March 9,

24 2004 (the “Valdivia Permanent Injunction”). Many of the same defendants who agreed to be

25 bound by the Valdivia Permanent Injunction as to adult parolees routinely ignore its provisions

26 with regard to juvenile parolees. For example, all adult parolees in California receive a state-

27 appointed, state-compensated, and trained attorney for parole consideration and revocations,

28 whereas the vast majority of juveniles – who by their nature are younger, more vulnerable, and

1

FIRST AMENDED CIVIL CLASS ACTION COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

1 less able to understand the parole revocation process and represent themselves – do not. This

2 is a nonsensical and unfair system, lacking any rational basis or compelling justification.

3

3. Juvenile parolees in California have an extremely high recidivism rate, with

4 approximately 70 percent arrested within 36 months of release. Many of the returns to custody

5 are for technical violations. Statistics from the California Department of Corrections and

6 Rehabilitation’s Division of Juvenile Justice report that, of 3,599 parole violation actions

7 handled in 2005, 490 were for being absent without leave (AWOL), and of those, 132 (27.0%)

8 resulted in revocation or recommitment; 1,415 were for other technical violations, and of those,

9 1,135 (80%) resulted in revocation or recommitment; 238 were for law violations in which the

10 person was not prosecuted or found not guilty, and of those, 94 (39.5%) resulted in revocation

11 or recommitment.

12

4. Juvenile parolees are arrested without lawful standards. After their arrests, they

13 are routinely subject to lengthy parole holds violating even the unconstitutional timelines

14 dictated by defendants’ existing policies. While on a parole hold, a juvenile parolee cannot be

15 released from custody. In contravention of the Valdivia Court’s holding that the procedure is

16 unconstitutional, defendants do not provide a prompt preliminary hearing for juveniles held in

17 custody based on an alleged parole violation.

18

A. CHARACTERISTICS OF JUVENILE PAROLEES

19

5. Because of their youth, juvenile parolees demonstrate limited cognitive and

20 emotional development, which can impair their ability to comprehend complex procedures and

21 to make rational decisions. In addition, juvenile parolees demonstrate significant rates of

22 educational deficiencies, limited knowledge of English, educational and cognitive disabilities,

23 mental health disorders, and other disabilities affecting communication. In light of these

24 factors, juvenile parolees are particularly ill-equipped to represent themselves adequately in

25 revocation proceedings.

26

6. It has been estimated that among juvenile detainees in the United States, nearly

27 60 percent read at or below a fifth-to-sixth-grade level, with 32 percent reading at or below a

28 fourth-grade level. The overall grade level of wards tested in California is between eighth and

2

FIRST AMENDED CIVIL CLASS ACTION COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

1 ninth grade.

2

7. The educational achievement level of wards in California, while already low, is

3 actually declining over time. Through a report by the Office of the Inspector General,

4 California has admitted serious deficiencies in its education services for juvenile detainees. At

5 representative facilities, the percentage of achievement test scores below the 25th national

6 percentile grew from 68 to 88 percent between 1998 and 2004 in one case study, and from 67

7 to 78 percent between 2002 and 2004 in another.

8

8. Wards are not receiving the minimum four hours a day of education mandated by

9 state law. Recent high school effectiveness rates at Division of Juvenile Justice (“DJJ”)

10 (formerly California Youth Authority (“CYA”)) facilities are dismal and getting worse. The

11 Inspector General found that only 30% of wards received the minimum required instruction

12 time at one institution in 2003-2004, down from 37% the previous year, and only 40% received

13 the minimum amount at another institution.

14

9. With class closures and absenteeism at DJJ facilities increasing drastically in

15 recent years, wards are denied the opportunity to make academic progress while in custody.

16 Classes and required treatment programs are frequently cancelled for lack of enough teachers

17 and psychologists. Juveniles with disabilities are disproportionately negatively affected by this

18 lack of consistency in the educational and treatment process. When paroled, wards leave with

19 significant educational disadvantages compared to the general population.

20

10. Juvenile detainees nationwide have rates of educational disabilities and mental

21 health treatment needs far exceeding those found in the general population of children and

22 youth. The percentage of juvenile detainees identified for special education programs before

23 incarceration is at least three to five times the percentage of the public school population

24 identified for such programs. One national study found that approximately 12.6% of juvenile

25 offenders had developmental disabilities, approximately 35.6% had learning disabilities, and

26 approximately 22% had significant mental health problems. Another U.S. Department of

27 Justice survey found learning disabilities in nearly 50% of juveniles in custody. These figures

28 show that incarcerated youth are much more likely than the general population to have

3

FIRST AMENDED CIVIL CLASS ACTION COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

1 disabilities – and associated deficits in reasoning ability, attention, and appropriate affect – that

2 limit their ability to serve as advocates for themselves.

3

11. In California, as many as half of the wards in DJJ custody – or possibly more –

4 have mental, emotional, or learning disabilities. Approximately 25% of all wards within DJJ

5 are registered with Special Education and assigned individualized education plans (“IEPs”).

6

12. Among the wards assigned to special education classes at one representative DJJ

7 facility, only 30 percent received the prescribed services between 2000 and 2003. Compared

8 with the already dismal 38 percent rate revealed in a previous audit, that figure reveals that

9 delivery of special education within DJJ is becoming even less effective over time.

10

13. The prevalence of mental and emotional problems among incarcerated youth

11 nationwide is very high, with one report estimating that as many as 60 or 70 percent have

12 diagnosable mental disorders. DJJ wards have much higher prevalence rates of mental health

13 disorders than same-age juveniles from the general population, or even from other juvenile

14 incarceration settings.

15

14. Despite the high rate of mental health problems among wards, DJJ’s mental

16 health care delivery services have been understaffed and deprived of resources, resulting in a

17 lack of continuity of care and specialized treatment. What few resources are available are

18 wasted on inefficient program delivery.

19

15. Juvenile parolees who lack adequate knowledge of spoken and written English

20 are also unable effectively to represent themselves in revocation proceedings. Approximately

21 one out of every four members of the DJJ population requires English Language Learner

22 services.

23

16. The Office of Civil Rights of the U.S. Department of Education recently found

24 “significant compliance concerns” with the English Language Learner program in DJJ. Staff

25 are not adequately trained to identify students with a primary language other than English, and

26 there is no structured program in place to improve such students’ knowledge of English. In

27 other words, wards whose communicative abilities are hampered by limited knowledge of

28 English are not consistently identified, and once identified, they are not provided an

4

FIRST AMENDED CIVIL CLASS ACTION COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

1 opportunity to gain skills while in custody.

2

17. The DJJ’s policies and procedures do not meet accepted standards of care for

3 medical and mental health treatment programs, educational activities, and other program areas.

4 All wards are negatively affected by these deficiencies, but wards with disabilities are

5 disproportionately negatively affected.

6

18. DJJ wards with vision impairments, hearing impairments, mobility impairments,

7 and disabilities related to diseases or limiting health conditions number in the hundreds.

8 Accommodations and modifications for wards with disabilities are limited in scope and

9 inconsistently provided. Accommodations provided for wards with hearing and vision

10 impairments are ineffective and do not allow wards with those disabilities to participate in

11 programs at the same level as other wards.

12

19. Aside from disabilities and other preexisting conditions impeding juvenile

13 parolees’ ability to represent themselves, the time spent within the violent and dysfunctional

14 prison setting of DJJ leaves all youth exiting custody less able to participate meaningfully in

15 subsequent parole revocation proceedings.

16

20. As defendants acknowledged in a recently disseminated report, DJJ institutions

17 are characterized by unusually high levels of violence and unsafe conditions for youth.

18 According to DJJ’s report, after spending time in DJJ, “no doubt some [youth] leave worse off

19 than when they arrived.”

20

21. California is in a minority of jurisdictions in the United States in that its juvenile

21 corrections agency is administered from within an adult corrections agency. DJJ embodies the

22 hazardous combination that its own report called “[a]n adult corrections agency with an

23 adult/juvenile mix.” As defendants have acknowledged, DJJ staff lack appropriate knowledge

24 and training in contemporary standards of care and practice in juvenile correctional agencies.

25 Likewise, on information and belief, a number of the defendants responsible for juvenile parole

26 revocation have no background or training in juvenile parole matters.

27

22. The average age of DJJ wards is 19 years old. The average length of stay for

28 males in California’s juvenile system is 25.9 months, nearly three times as long as the average

5

FIRST AMENDED CIVIL CLASS ACTION COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

1 for 19 states surveyed. These long stays can hinder the educational and emotional

2 development of juvenile parolees, leaving them with a lower level of maturity and reasoning

3 skills than the same-age general population or even same-age parolees in other jurisdictions.

4

23. As defendants have admitted in the DJJ report, the necessary reform efforts to

5 reduce violence and improve programming within DJJ institutions “will take years” to achieve.

6 Suggested reforms to transition and aftercare services for juvenile parolees will not even enter

7 the planning stage until a few years from now. Until both conditions of incarceration and re-

8 entry planning have been totally reformed, parolees exiting DJJ institutions will be especially

9 vulnerable and unable to advocate effectively for themselves in revocation proceedings.

10

B. DENIAL OF DUE PROCESS IN REVOCATION PROCEEDINGS

11

24. The process of imposing parole holds and parole consideration and revocation

12 for juveniles is an opaque system lacking clear rules or standards to guide staff, juvenile

13 parolees, attorneys, and parents. As demonstrated by defendants’ inadequate and confused

14 response to a Public Records Act request by plaintiffs’ counsel concerning parole procedures,

15 even defendants are unable to articulate the way the system is intended to function.

16

25. Defendants’ failure to promulgate straightforward parole regulations prevents

17 wards, juvenile parolees, and their representatives from being able to challenge their

18 confinement through administrative or court proceedings. Recent legislative enactments have

19 changed the structure and duties of the agencies responsible for juvenile parole matters, and

20 many of the regulations governing juvenile parole matters do not reflect the recent legislative

21 changes. Upon information and belief, defendants have also failed to make, publish, and

22 enforce rules related to the operation of the juvenile parole system as required by recent

23 legislation.

24

26. The lack of accurate, available regulations prevents juvenile parolees and their

25 representatives from being able to understand and vindicate their rights. Decoding the

26 statutory and administrative scheme underlying juvenile parole matters is immensely difficult.

27 It has taken plaintiffs’ attorneys numerous hours of research and a Public Records Act request

28 to gain even a basic understanding of some of the most fundamental parole issues, including,

6

FIRST AMENDED CIVIL CLASS ACTION COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

1 but not limited to, who is in charge of parole matters, whether a juvenile parolee is entitled to

2 an attorney and in what types of hearings such a right might apply, provision of

3 accommodations for parolees with disabilities, and how a juvenile parolee can appeal a denial

4 or revocation of parole. Despite those efforts, many policies and practices of defendants

5 remain unclear. It defies reason to suggest that a juvenile parolee, particularly a juvenile

6 suffering from educational or other disabilities, would be able to understand this system, let

7 alone be able to successfully challenge or appeal adverse decisions. The arbitrariness of

8 conducting revocation proceedings in which youths’ liberty interest is at stake without any

9 enunciated procedures itself violates the guarantee of due process of law.

10

27. Lengthy parole holds are routinely being imposed without proper and timely

11 notice to the parolees of the reasons for the detention. Juvenile parolees frequently do not

12 receive notice of the charges against them, let alone a hearing, until they have been in custody

13 for weeks or often months, even though the Valdivia Permanent Injunction requires that adult

14 parolees be provided with a notice of charges and notice of rights and time frames within three

15 days of their arrest. In at least one of the most egregious cases, a juvenile parolee was detained

16 more than five months without a hearing. On information and belief, juvenile parolees do not

17 receive credit for time served in custody prior to their parole revocation hearing. Adult

18 parolees receive credit for time served from the date the parole hold is placed.

19

28. Preliminary hearings regarding the cause of a juvenile parolee’s detention are not

20 being conducted in California. In almost all cases, no hearing is held regarding the basis for

21 the detention or the charges themselves until the final revocation hearing, which may not be

22 scheduled until weeks or even months after the arrest. In those rare cases in which preliminary

23 hearings are held, they are not held promptly and are not subject to any deadline. Many of the

24 defendants herein or their predecessors have had notice since a June 14, 2002 published order

25 in the Valdivia case, 206 F.Supp.2d 1068 (E.D.Cal. 2002), that a unitary parole revocation

26 hearing system without prompt probable cause hearings is unconstitutional, yet those same

27 defendants continue to operate a juvenile parole system that violates the Valdivia court’s

28 ruling.

7

FIRST AMENDED CIVIL CLASS ACTION COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

1

29. In stark contrast to this treatment of juveniles, under the Valdivia Permanent

2 Injunction adults have the right to a preliminary probable cause hearing ten days after receiving

3 the notice of charges. There is also a provision for an expedited hearing for adult parolees

4 upon a sufficient offer of proof. At the probable cause hearing, adults are entitled to present

5 documentary evidence and hearsay testimony, and their right to confront adverse witnesses

6 limits the use of hearsay testimony against them. A written record of the hearing and the basis

7 for decisions made therein must be kept. Juvenile parolees are afforded none of these

8 protections, even though many of the same defendants who agreed to extend these protections

9 to adults are now responsible for juveniles’ revocation proceedings.

10

30. The time spent in custody during these parole holds, lasting weeks or even

11 months, without any determination of probable cause, can be extremely disruptive of juvenile

12 parolees’ reintegration efforts, including employment and family life. The extended holds

13 often cause them to lose their jobs, even if parole is not ultimately revoked or there was no

14 basis for the charges.

15

31. These lengthy parole holds for juveniles are routinely imposed without any

16 sufficient mechanism to appeal the detentions.

17

32. Final revocation hearings for juvenile parolees are not held in a timely manner;

18 instead, they routinely occur many weeks or months after the parolee’s arrest. In contrast,

19 defendants in Valdivia agreed that final revocation hearings for adult parolees must be held a

20 maximum of 35 calendar days after the parole hold in all cases.

21

33. The lack of a prompt final revocation hearing severely prejudices juveniles’

22 ability to defend against charges of parole violations. Because there is no preliminary hearing

23 and the final revocation hearing is often held long after the alleged violation, witnesses are

24 often unavailable and recollections become stale.

25

34. It is particularly difficult for juvenile parolees to ensure that favorable witnesses

26 can attend a revocation hearing because, on information and belief, the hearings are routinely

27 held more than fifty miles from the juvenile parolee’s residence and/or place of arrest. In

28 contrast, under the Valdivia Permanent Injunction, parole revocation hearings for adults must

8

FIRST AMENDED CIVIL CLASS ACTION COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

1 be conducted within fifty miles of the alleged violation.

2

35. The parole revocation hearings themselves do not afford due process to juvenile

3 parolees. At revocation hearings, it is defendants’ pattern and practice to deny or illegally limit

4 plaintiffs’ right to have testimony adduced on their behalf from live, percipient witnesses.

5 Witnesses who are and should be notified of the proposed hearing and should be allowed and

6 required to testify at the hearing are frequently neither notified of the hearing, nor allowed to

7 testify. In violation of due process, only adverse witnesses are generally compelled to attend

8 such hearings by subpoena. Witnesses identified by the parolee are not subpoenaed unless the

9 parolee specifically requests the issuance of subpoenas, rather than the attendance of witnesses.

10 Even then, witnesses favorable to the parolee are rarely compelled to attend, and are often not

11 permitted to testify. Yet many of the defendants herein, based on their agreement to be bound

12 by the Valdivia Permanent Injunction, allow adult parolees to subpoena and present witnesses

13 and evidence to the same extent and under the same terms as the state. Adult parolees in

14 California are also permitted to present documentary evidence and their own testimony

15 (including hearsay) at probable cause hearings to defend or mitigate against the charges.

16

36. On information and belief, the failure of adverse witnesses (including parole

17 agents) to attend the revocation hearing is routinely overlooked, or the hearing is continued so

18 that adverse witnesses can be present without the advance knowledge or consent of the parolee

19 or the parolee’s witnesses. During such delays, the parolee remains in custody. Such

20 continuances are unfairly burdensome for witnesses who are favorable to the parolee because

21 they, unlike subpoenaed witnesses, receive no compensation for their attendance. Moreover,

22 absent subpoena authority over favorable witnesses, there is insufficient assurance that these

23 witnesses can or will be able to attend a rescheduled revocation hearing. Again, even though

24 many of the defendants herein are required by Valdivia to allow adult parolees to subpoena and

25 present witnesses and evidence to the same extent and under the same terms as the state,

26 juveniles are denied these rights.

27

37. In addition, defendants limit or refuse live adverse testimony, thereby denying

28 juvenile parolees their constitutional right to confront and cross-examine the witnesses and

9

FIRST AMENDED CIVIL CLASS ACTION COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

1 evidence proffered against them.

2

38. At parole consideration, revocation, and other hearings, decisionmakers are not

3 guided by any discernable standards concerning parole release or revocation. Hearing officers

4 rely on documentary and other evidence that is not produced to the juvenile parolees, and they

5 arbitrarily ignore other evidence and reports that are favorable to the parolees.

6

39. At parole consideration, revocation, and other hearings, juvenile parolees are not

7 informed that they may obtain written or recorded records of their hearings, nor are they

8 informed that they may appeal adverse decisions. Even when juvenile parolees or their

9 representatives request information concerning records or the appeal process, they are not

10 provided with accurate information or recorded tapes of their hearings.

11

40. Throughout parole revocation proceedings, juvenile parolees are presented with a

12 variety of complex written documents requiring a high level of literacy. These complex forms

13 are not translated into languages other than English and are not made available on audiotape, in

14 Braille, or in any other alternative formats. The complexity of the DJJ forms often makes it

15 impossible for juvenile parolees to understand and exercise their rights and to meet deadlines.

16 The forms pose even bigger obstacles for the large number of juvenile parolees who have

17 disabilities and/or have difficulty communicating effectively.

18

41. In contrast, adult parolees’ appointed counsel must be notified of communicative

19 disabilities and other barriers to participation in revocation proceedings. Under the Valdivia

20 Permanent Injunction, adult parolees are also required to have access to forms that have been

21 simplified and reviewed for accuracy, Spanish translations of forms, and language

22 interpretation services. All forms and notices for adult parolees must be readily available in

23 alternative formats, including large print, Braille, and audio tape. In addition, adult parolees

24 with disabilities must be provided accommodations to enable them to understand the forms to

25 the best of their abilities. The same defendants who agreed to extend these important

26 protections to adult parolees consistently and illegally deny them to juveniles.

27

42. On information and belief, forms and notices concerning the revocation process

28 are not provided to wards completely and consistently from one case to the next, with the result

10

FIRST AMENDED CIVIL CLASS ACTION COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

1 that not all juvenile parolees receive the same set of forms.

2

43. At the revocation hearings, it is the pattern and practice of defendants to deny

3 juvenile parolees with disabilities effective communication of the proceedings and their right to

4 fully participate and understand the proceedings. On information and belief, there is no

5 mechanism to determine whether juvenile parolees with mental illness or cognitive or other

6 developmental or communicative disabilities require assistance with reading or comprehending

7 complex forms and proceedings, nor whether juvenile parolees who are illiterate require

8 assistance in understanding written communications. There is also no procedure to determine

9 whether juvenile parolees with limited or no knowledge of English require interpreters to allow

10 them to give testimony or to understand witnesses and their own attorneys. On information

11 and belief, accommodations such as sign language interpreters are not routinely made available

12 for juvenile parolees with hearing impairments, and facilities where hearings are held may not

13 be fully accessible to juveniles with mobility impairments.

14

44. There is no grievance procedure for juvenile parolees who have been denied

15 accommodation of their disabilities in connection with revocation hearings. In contrast, some

16 of these same defendants were ordered to implement a grievance procedure, separate from the

17 existing appeal procedure, to process complaints of denials of requests for accommodations by

18 adult parolees. Those adult grievances must be decided before the hearing occurs.

19

45. On information and belief, defendants hold various other hearings with regard to

20 juveniles under DJJ jurisdiction, including parole consideration, “time-add,” extension, YAAC,

21 and other proceedings related to the granting, continuing, or revoking of parole (“parole

22 proceedings”).

23

46. During these parole proceedings, juvenile parolees are permitted to waive their

24 rights to hearings and their rights to present evidence and confront witnesses, all without

25 representation by counsel. On information and belief, juvenile parolees consistently make

26 waivers that are not knowing, voluntary, or intelligent, because they are unable to understand

27 the meaning of the forms or the nature of the rights they are giving up. According to

28 defendants’ own reports, DJJ does not provide juveniles with adequate information or access to

11

FIRST AMENDED CIVIL CLASS ACTION COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

1 legal materials and law libraries, leaving juveniles no means of understanding their rights.

2

47. Defendants also impose “temporary detentions,” taking juvenile parolees into

3 custody for extended periods even when there has been no alleged parole violation.

4

48. These parole proceedings and temporary detentions, all of which affect juvenile

5 parolees’ fundamental right to liberty, are conducted without regard to juveniles’ constitutional

6 right to due process of law, without adequate standards or guidelines, and in disregard of

7 federal laws designed to prevent discrimination against persons with disabilities and to ensure

8 effective communication of the conditions of parole and the basis for its revocation.

9

49. Juvenile parolees are not provided with adequate pre-release and re-entry

10 counseling and other services to assist their return to the community, thereby increasing the

11 likelihood that they will be subjected to further unconstitutional conditions of confinement and

12 parole proceedings.

13

50. On information and belief, parents and guardians of minors in custody for

14 alleged parole violations are consistently denied any involvement in revocation and other

15 parole proceedings. Parents are not given notice of hearings and other legal proceedings, are

16 not permitted to provide retained counsel for their children, and are denied the right to appear

17 as witnesses at hearings and to assist in legal decisionmaking. This is the case despite

18 defendants’ acknowledgment in a recently distributed report that “[t]he research consistently

19 shows that positive outcomes for youth are more likely when the family is involved in

20 treatment. . . . Continuing and increasing family involvement is especially important on

21 parole.” Parents have an interest in their minor children’s parole proceedings because of their

22 participation in and responsibility for, among other things, their children’s housing and

23 financial support. They should be provided notice of, and permitted to assist and participate in,

24 all stages of their children’s revocation proceedings.

25

C. DENIAL OF THE RIGHT TO COUNSEL

26

51. On information and belief, defendants’ policy is to determine a juvenile parolee’s

27 entitlement to counsel only if the juvenile parolee affirmatively requests counsel. No steps are

28 taken to ensure that juveniles understand they can request an attorney, or to advise them of the

12

FIRST AMENDED CIVIL CLASS ACTION COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

1 criteria used to determine attorney appointment. In fact, juveniles are frequently pressured by

2 staff to waive their rights to counsel and a hearing. In the event a juvenile parolee fails to

3 waive his or her rights, and instead presses for the right to counsel and a hearing, it is the

4 pattern or practice of defendants to deny the request for counsel in virtually all such cases on

5 constitutionally invalid grounds or to offer no grounds at all for the denial of counsel, and in

6 some cases to record incorrectly that the parolee has “waived” the right to an attorney.

7

52. On information and belief, in the unusual case in which a juvenile parolee is

8 advised of the denial of his or her request for counsel, he or she is not routinely and promptly

9 advised of the right to appeal that decision, and there is no mechanism for prompt, fair and

10 adequate presentation of such an appeal.

11

53. On information and belief, juvenile parolees are granted counsel in only

12 approximately 10 percent of revocation cases. In contrast, all adult parolees in California are

13 entitled to appointed counsel beginning early in the revocation case, six days after being served

14 with a notice of charges and notice of rights. This is despite the fact that juvenile parolees, as a

15 group, display a much greater eligibility for attorney representation under the standard set out

16 in Gagnon than their adult counterparts. The characteristics of juvenile parolees suggest that

17 the vast majority of them are constitutionally entitled to appointed counsel by virtue of their

18 youth and low maturity levels alone. The denial of counsel in almost all cases is even more

19 intolerable given juvenile parolees’ low literacy rates and educational achievement, lack of

20 familiarity with spoken and written English, mental and emotional disorders, communicative

21 and cognitive disabilities, and other conditions hindering their ability to represent themselves

22 in complex proceedings.

23

54. At the very least, the fact that juvenile parolees are by definition younger than

24 adult parolees makes them presumptively less able to represent themselves without assistance.

25 First, many juvenile parolees are children, whose educational experience and reasoning skills

26 are less than those of adults. Second, both minors and older youth on parole have suffered the

27 severe setback of having spent time in the custody of DJJ, a dangerous, inadequately staffed

28 prison system, without the benefit of proper educational services, counseling, or programming.

13

FIRST AMENDED CIVIL CLASS ACTION COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

1 Juvenile parolees are further disadvantaged by this lost time: most of the time they spend in

2 custody is devoted to bare survival instead of education and cognitive and emotional

3 development.

4

55. In those rare cases in which counsel is appointed, counsel participate only in final

5 revocation hearings. On information and belief, juveniles are denied representation of counsel

6 with respect to many other types of parole proceedings, including preliminary hearings, board

7 hearings at the conclusion of revocation terms, “time-adds,” parole consideration hearings, and

8 important decisions concerning waivers of various proceedings. Juvenile parolees are

9 permitted and encouraged to waive their rights to hearings, and to defend against charges by

10 presenting evidence and confronting witnesses, without any representation by counsel.

11

56. When counsel is appointed, the pay scale and criteria for attorney representation

12 set by defendants render any right to counsel that is afforded meaningless, by making unduly

13 burdensome or impossible the fair, full and reasonable representation of juvenile parolees. On

14 information and belief, the hourly rate of pay and limit on hours for attorneys representing

15 juvenile parolees is intended to and does discourage meaningful representation of parolees.

16 Moreover, reasonable and supplemental legal services, such as the perfecting of administrative

17 and judicial review, are not compensated.

18

57. On information and belief, even when a juvenile parolee intends to retain his or

19 her own non-state-appointed attorney, defendants’ practice is to refuse to allow juvenile

20 parolees access to counsel.

21

58. On information and belief, defendants interfere with, restrict, and monitor

22 juvenile parolees’ attempts to communicate with attorneys regarding their revocation hearings.

23

59. Attorneys, like witnesses, are often prohibited from speaking at revocation

24 hearings, severely obstructing their ability to represent juvenile parolees effectively.

25

60. In contrast to the lack of standards or training for counsel representing juvenile

26 parolees, many of the defendants herein have agreed to be bound by the Valdivia Permanent

27 Injunction to develop standards, guidelines, and training for effective assistance of state-

28 appointed counsel for all adult parolees.

14

FIRST AMENDED CIVIL CLASS ACTION COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

1

61. Under the Valdivia Permanent Injunction, in cases involving adult parolees who

2 have difficulty communicating or participating in revocation proceedings, including but not

3 limited to mental illness, other cognitive or communication impairments, illiteracy, limited

4 English-language proficiency, and the need for a foreign language interpreter, appointed

5 counsel must be informed of the nature of the difficulty and allowed adequate time to represent

6 the parolee properly at each stage of the proceeding. Juvenile parolees are not extended any

7 such protections.

8

D. INEFFECTIVENESS OF ADMINISTRATIVE APPEALS

9

62. Defendants’ recent restructuring and reorganization have led to disarray in the

10 statutory and regulatory scheme that makes it difficult for juvenile parolees and their

11 representatives to pursue appeals or utilize administrative remedies.

12

63. On information and belief, many juvenile parolees are not given notice of their

13 right to appeal revocation decisions, making the administrative process arbitrary and

14 inaccessible.

15

64. On information and belief, in those cases in which appeal forms are provided to

16 juvenile parolees, the forms do not clearly list deadlines for appealing decisions, leading

17 appeals to be rejected as untimely. In contrast, the Valdivia Permanent Injunction requires that

18 adult parolees be served with a written notice of rights, including time frames.

19

65. On information and belief, juveniles serving revocation terms sometimes do not

20 receive responses to appeals until after their revocation terms have expired. Additionally, on

21 information and belief, filing appeals can delay disposition of revocation proceedings and

22 therefore increase juveniles’ time in custody.

23

66. On information and belief, juveniles who appeal revocation decisions frequently

24 become victims of retaliation, in some cases because information concerning their alleged

25 offenses becomes available to custody officers, compromising confidentiality and safety. On

26 information and belief, the fear of retaliation leads most juvenile parolees to forgo their right to

27 appeal, grieve, or complain of revocation decisions.

28

67. On information and belief, appointed counsel are not available to assist juvenile

15

FIRST AMENDED CIVIL CLASS ACTION COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

1 parolees in the administrative appeal process.

2

JURISDICTION

3

68. Jurisdiction of this court is invoked pursuant to the provisions of Title 28 U.S.C.

4 section 1331 and section 1343(a)(3). The individual defendants, sued in their official

5 capacities, are persons who have deprived and continue to deprive plaintiffs of their federally

6 guaranteed constitutional and civil rights under color of state law, in violation of Title 42

7 U.S.C. section 1983 and Title 29 U.S.C. section 794. The institutional defendants are entities

8 that deny reasonable accommodation to plaintiffs in violation of the Americans with

9 Disabilities Act and/or the Rehabilitation Act, in violation of Title 42 U.S.C. sections 12101 et

10 seq., and Title 29 U.S.C. sections 701 et seq.

11

69. Declaratory judgment and prospective injunctive relief are sought under the

12 terms of Title 28 U.S.C. sections 1343, 2201 and 2202. Members of the plaintiff class, on an

13 ongoing basis, are being irreparably harmed by defendants’ illegal actions, rules, practices and

14 procedures, and there is no sufficient alternative remedy to redress plaintiffs’ complaint.

15

VENUE

16

70. Venue is properly in this Court, pursuant to Title 28 U.S.C. section 1391(b)(1), in

17 that this judicial district is the residence of one or all of the defendants in this civil action, and

18 all of the defendants are residents of the State of California.

19

PARTIES

20

71. Plaintiffs’ actual names are not disclosed because each plaintiff has personally

21 experienced or witnessed retaliation resulting from other juvenile parolees’ filing or expression

22 of grievances concerning the parole revocation process, and each plaintiff therefore fears that

23 retaliation could result from the filing of this Complaint. Additionally, California juvenile

24 court has long recognized the importance of limiting disclosure of information about juvenile

25 cases out of concern that the youth be able to move forward with their lives without the stigma

26 attached to criminal convictions. (See Cal. Welf. & Inst. Code §§ 203, 1772.) Each plaintiff’s

27 underlying offense occurred when he or she was a minor, and proceeding anonymously is

28 appropriate to respect the privacy of the juvenile offenders.

16

FIRST AMENDED CIVIL CLASS ACTION COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

1

72. L.H. is a 23-year-old DJJ parolee, who spent approximately five years in DJJ fire

2 camp and other facilities, including Heman G. Stark Youth Correctional Facility. He was

3 paroled and then placed under a parole hold (arrested) for being under the influence of alcohol

4 while living at a residential substance abuse center. L.H. did not receive a preliminary hearing.

5 After more than a month in custody, on the date appointed for his parole revocation hearing,

6 the parole officer assigned to the case failed to bring the file, resulting in an additional three

7 weeks of delay. L.H. was therefore in DJJ custody without a probable cause or revocation

8 hearing for more than two months.

9

73. When such a hearing finally occurred, someone other than L.H.’s parole officer

10 presented the case. L.H. was denied his right to be represented by counsel under Gagnon and

11 the due process clause. He was not offered counsel, and did not request counsel because he did

12 not believe he had such a right. As a result of this unfair hearing, L.H. was sentenced to serve

13 several additional months in DJJ custody.

14

74. L.H. has been a special education student since childhood and requires assistance

15 with reading. He was placed in special education classes in DJJ facilities. L.H. suffered

16 developmental delays attributable to premature birth and a head injury during early

17 adolescence. DJJ clinical staff were made aware that L.H. has a possible mental disorder.

18 L.H. has had problems with substance abuse, including use of alcohol and marijuana, since

19 childhood. L.H. received fewer than 10 academic credits while in custody at DJJ, where his

20 classes were often cancelled. He has neither a high school diploma nor a G.E.D. and missed a

21 great deal of school prior to commitment. On remand from the Court of Appeal, a juvenile

22 court found him to be an individual with exceptional needs. L.H. is an individual with a

23 disability as that term is defined in Section 504 of the Rehabilitation Act of 1973, (‘Section

24 504”), 29 U.S.C. section 705(20), and the Americans with Disabilities Act (“ADA”), 42 U.S.C.

25 section 12102(2).

26

75. Although currently on parole until 2008, L.H., like the vast majority of juvenile

27 court parolees in California, is at imminent risk of being subjected again to DJJ’s unfair and

28 unconstitutional revocation procedures.

17

FIRST AMENDED CIVIL CLASS ACTION COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

1

76. A.Z. is a 22-year-old DJJ parolee, who recently served a six month parole

2 revocation term. A.Z. has been subjected to DJJ’s unconstitutional revocation proceedings on

3 three occasions, most recently in a hearing in February 2006. That hearing, like the previous

4 ones, was conducted without an attorney to represent A.Z. A.Z. has consistently been denied

5 his right to be represented by counsel under Gagnon and the due process clause. Every time

6 his parole is revoked, A.Z. asks for counsel, but the BPH agent or other representative informs

7 him that counsel is unlikely to be appointed. The February 2006 hearing, like the previous

8 ones, occurred more than 50 miles from A.Z.’s residence, making it difficult or impossible for

9 him to present witnesses in his favor. That hearing, like the previous ones, did not occur until

10 A.Z. had been in custody for one and a half to two months. A.Z. has not received prompt

11 preliminary hearings following his arrests for parole violations.

12

77. At A.Z.’s most recent revocation hearing, the hearing officer asked if he had

13 been “harmed” by the parole department’s inability to find a police report of his arrest. A.Z.,

14 without the benefit of counsel, replied no, when in fact he was harmed because he had to serve

15 an additional 30 days in county jail while parole representatives searched for the police report.

16 In addition, at the last minute and without any notice or explanation, A.Z.’s parole agent

17 changed the recommendation from continue on parole to return to custody. The hearing officer

18 revoked A.Z.’s parole, refusing to give him credit for the 30 days served in county jail. A.Z.

19 promptly attempted to appeal that decision, but his appeal was initially “lost” and only granted

20 after his attorney wrote to defendants.

21

78. A.Z.’s case was particularly complex because criminal charges were made in

22 addition to parole revocation charges, but the related police report was lost for 30 days.

23

79. A.Z. spent four years in CYA and received his high school degree from YA’s

24 inadequate system. Since fourth grade, A.Z. has been periodically suspended from school, and

25 only sporadically attended school after seventh grade. DJJ has failed to provide A.Z. with

26 adequate education or counseling or treatment for his known substance abuse.

27

80. Although currently on parole until 2008, A.Z., like the vast majority of juvenile

28 court parolees in California, is at imminent risk of being subjected again to DJJ’s unfair and

18

FIRST AMENDED CIVIL CLASS ACTION COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

1 unconstitutional revocation procedures.

2

81. D.K. is a 23-year-old currently released on parole supervision who has been

3 subjected to DJJ’s unconstitutional parole revocation proceedings. After being released on

4 parole in June 2005, he was arrested by his parole agent on or about August 15, 2005 for an

5 alleged “dirty” drug test and was brought to DeWitt Nelson Correctional Center. He did not

6 receive a copy of the drug test results, and he did not receive a preliminary hearing. On or

7 about September 1, 2005, D.K. received notice that he would have a parole revocation hearing

8 on September 8, making it difficult or impossible to obtain witnesses or evidence in his favor.

9 Despite the short notice, his mentor, who helped D.K. find employment when he was released

10 on parole, appeared for the hearing. However, this important witness was not permitted to

11 speak. D.K. was denied his right to be represented by counsel under Gagnon and the due

12 process clause. The hearing was conducted without an attorney to represent D.K., despite his

13 request for assistance. Per his parole agent’s recommendation, the BPH continued D.K. on

14 parole. He was released to parole supervision on or about September 15, 2005, but he lost his

15 job as a result of the month in custody.

16

82. D.K. has a history of drug and alcohol abuse and has participated in substance

17 abuse counseling beginning before his release from custody. He does not have a high school

18 diploma or G.E.D., and he made very little academic progress during his five and a half years

19 in CYA custody. At the time of his arrest and revocation hearing, his DJJ file contained

20 diagnoses of mental disorders. D.K. is an individual with a disability as that term is defined in

21 Section 504, 29 U.S.C. section 705(20), and the ADA.

22

83. Although currently on parole until 2007, D.K., like the vast majority of juvenile

23 court parolees in California, is at imminent risk of being subjected again to DJJ’s unfair and

24 unconstitutional revocation procedures.

25

84. D.R. is a 23-year old DJJ parolee, who was first committed to DJJ five years ago.

26 D.R. paroled in January 2004, and was living in the community. In or around December 2004,

27 D.R. was arrested and placed in custody on three alleged parole violations: use of marijuana,

28 driving on a suspended/revoked license, and failure to report a police contact to his parole

19

FIRST AMENDED CIVIL CLASS ACTION COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

1 agent. D.R. received notice of the alleged charges over a month after he was taken into

2 custody, a mere four days before his revocation hearing. D.R. did not receive a preliminary

3 hearing.

4

85. For his revocation hearing, D.R. requested two evidentiary witnesses, neither of

5 whom was called by Defendants. D.R . was never shown the laboratory results upon which the

6 marijuana charge was based. D.R. did not request an attorney because he was informed that he

7 was not eligible for appointed counsel.

8

86. D.R.’s parole was revoked in January 2005 by the Board of Parole Hearings

9 (“BPH”). He immediately appealed the decision, stating that his due process rights were

10 violated by Defendants’ failure to provide sufficient notice of the hearing and the failure to call

11 his witnesses. BPH denied the appeal in April, over three months later. D.R. requested, but

12 never received, a copy of his hearing tape.

13

87. D.R. spent 21 months in custody and went to four Parole Consideration Hearings

14 before the BPH finally ended his parole revocation term and released him. D.R. requested, but

15 never received, copies of two of his Parole Consideration Hearing tapes.

16

88. D.R. has a history of mental health concerns, and attempted suicide while in

17 custody for his parole revocation. DJJ failed to provide D.R. with adequate treatment or

18 counseling, yet at one of his parole consideration hearings, BPH expressly denied parole to

19 D.R. due to his need for mental health treatment. After that hearing, D.R. did not see a mental

20 health professional again for months.

21

89. Although currently on parole until 2007, D.R., like the vast majority of juvenile

22 court parolees in California, is at imminent risk of being subjected again to DJJ’s unfair and

23 unconstitutional revocation procedures.

24

90. Each of the representative plaintiffs’ constitutional rights to due process of law,

25 to equal protection of the laws, and/or to counsel were violated by defendants’ patterns and

26 practices, as alleged more fully herein.

27

91. DEFENDANT ARNOLD SCHWARZENEGGER. Defendant is Governor of

28 the State of California and the Chief Executive of the state government. He is sued herein in

20

FIRST AMENDED CIVIL CLASS ACTION COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

1 his official capacity. As Governor, Mr. Schwarzenegger is responsible for the appointment of

2 defendant Secretary of the California Department of Corrections and Rehabilitation (“CDCR”),

3 defendant Undersecretary of the CDCR, defendant Chief Deputy Secretary of the Division of

4 Juvenile Justice, and, subject to State Senate confirmation, every member of the Board of

5 Parole Hearings (“BPH”). The Governor also appoints the Executive Director of the BPH.

6 The Governor, in union with those whom he appoints, and by and through those persons

7 employed by the other defendants, controls and regulates the custody of the plaintiff class.

8 Pursuant to California Welfare & Institutions Code section 1767.3, defendant Schwarzenegger,

9 by and through those whom he appoints and/or those they employ, has power to revoke the

10 parole of any juvenile prisoner, just as the parole authority has such power. On information

11 and belief, defendant Schwarzenegger is responsible for the creation and enforcement of

12 policies and practices whereby the rights, privileges and immunities of the plaintiff class are

13 adversely affected, in violation of the United States Constitution and of other laws. Through

14 his Attorney General, Defendant Schwarzenegger stipulated on November 17, 2003 to the

15 Valdivia Permanent Injunction requiring implementation of constitutional parole revocation

16 procedures for adult parolees in California.

17

92. DEFENDANT JAMES E. TILTON. Defendant Tilton is Acting Secretary of the

18 CDCR. He is sued herein in his official capacity. Defendant Tilton serves as Secretary to

19 defendant Schwarzenegger in charge of defendant CDCR, which funds all costs and employs

20 and directs all staff for executing all actions complained of herein. Except as otherwise alleged

21 herein, Mr. Tilton is responsible for the appointment and employment of necessary officers and

22 employees of the Department, with the express or implied approval of defendant

23 Schwarzenegger. Defendant Tilton is appointed by defendant Schwarzenegger and is entitled

24 to exercise the authority vested in the Governor in respect to defendant CDCR. Mr. Tilton is

25 advisor to the Governor and assists in establishing major policy and program matters affecting

26 the CDCR. Defendant Tilton has immediate supervisory authority over the CDCR. Defendant

27 Tilton also has immediate supervisory authority over the BPH, which is an executive agency

28 within the CDCR. Defendant’s predecessor as Secretary, Roderick Q. Hickman, stipulated on

21

FIRST AMENDED CIVIL CLASS ACTION COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

1 November 17, 2003 to the Valdivia Permanent Injunction requiring implementation of

2 constitutional parole revocation procedures for adults in California.

3

93. DEFENDANT KINGSTON “BUD” PRUNTY. Defendant Prunty is the

4 Undersecretary of the CDCR, reporting to defendant Tilton. He is sued herein in his official

5 capacity. The Undersecretary is appointed by defendant Schwarzenegger, subject to Senate

6 confirmation. In his capacity as Undersecretary, Mr. Prunty acts under the direction and

7 control of defendants Schwarzenegger and Tilton and implements CDCR’s policies by and

8 through his employees and in collaboration with other officers of the CDCR.

9

94. DEFENDANT DIVISION OF JUVENILE JUSTICE. The California Youth

10 Authority was an entity established by the State of California to confine juvenile wards of the

11 state. Effective July 1, 2005, a Reorganization Plan was enacted pursuant to which the

12 California Youth Authority was abolished, and its duties were transferred to the defendant

13 Division of Juvenile Justice (“DJJ”) (sometimes referred to as the Division of Juvenile

14 Facilities), a division of defendant CDCR. (Chapter 10, Statutes of 2005 (SB 737).) The DJJ

15 operates all state-level juvenile correctional institutions and purports to provide education,

16 training and treatment services for youthful offenders. The statutory purpose of DJJ is “to

17 protect society from the consequences of criminal activity” and to provide “correction and

18 rehabilitation [to] young persons who have committed public offenses.” (Cal. Welf. & Inst.

19 Code § 1700.) DJJ currently houses approximately 3000 wards, ranging in age from 12 to 25,

20 in seven separate youth correctional facilities, two youth conservation camps, and a reception

21 center located throughout the state of California.

22

95. The Youth Offender Parole Board (“YOPB”) was replaced by the Youth

23 Authority Board as part of S.B. 459, effective April, 2003. Thereafter, the July 2005

24 Reorganization Plan transferred the juvenile parole duties to DJJ and defendant Board of

25 Parole Hearings (“BPH”). Currently, the DJJ assumes the functions of returning wards to their

26 court of commitment for redisposition; discharges commitment; grants parole and sets

27 conditions of parole; revokes or suspends parole; recommends treatment programs; and returns

28 nonresident wards to their state of jurisdiction. The DJJ conducts these functions, including

22

FIRST AMENDED CIVIL CLASS ACTION COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

1 specifically the revocation of parole, through the BPH.

2

96. DEFENDANT BOARD OF PAROLE HEARINGS. The BPH consists of 17

3 commissioners, five of whom are required to be trained in juvenile parole matters. On

4 information and belief, the BPH currently has only three or four commissioners trained in

5 juvenile parole matters. In addition to parole revocation, the BPH makes determinations about

6 juveniles’ readiness for parole and may impose “special conditions” of parole, in addition to

7 requiring that juveniles pay restitution, maintain contact with their parole agent, submit to

8 searches, and not leave the state without permission.

9

97. DEFENDANT BERNARD WARNER. Defendant Warner is Chief Deputy

10 Secretary of DJJ. He is sued herein in his official capacity. The Chief Deputy is responsible

11 for the operation of all DJJ staff and facilities, including decisions concerning the budget, staff

12 deployment, programming, and staff training that directly affect plaintiffs and the plaintiff

13 class.

14

98. The BPH works with the Division of Juvenile Parole Operations and DJJ to

15 determine whether a violation of juvenile parole has occurred. On information and belief,

16 DEFENDANT JOSEPH R. MONTES is the Acting Director of the Division of Juvenile Parole

17 Operations. He is sued herein in his official capacity. The Division of Juvenile Parole

18 Operations provides parole supervision to DJJ wards on parole.

19

99. On information and belief, DEFENDANT DENNIS DULAY is the Acting

20 Deputy Director of the Division of Juvenile Parole Operations. He is sued herein in his official

21 capacity. The Division of Juvenile Parole Operations provides parole supervision to DJJ wards

22 on parole.

23

100. DEFENDANT JOHN MONDAY. Defendant Monday is Executive Director of

24 the BPH of the State of California. He is sued herein in his official capacity. On information

25 and belief, Mr. Monday was nominated as Executive Director by defendant Schwarzenegger,

26 and his nomination was confirmed by the Senate of the State of California. On information

27 and belief, Mr. Monday was appointed Executive Director of the BPH by defendant

28 Schwarzenegger. Mr. Monday has overall executive authority over the operation of the BPH,

23

FIRST AMENDED CIVIL CLASS ACTION COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

1 which is currently the principal parole revocation authority of the State of California for adult

2 and juvenile parolees and is responsible for implementing the provisions of the Valdivia

3 Permanent Injunction. The Executive Director is the administrative head of the Board and has

4 the responsibility to exercise all duties and functions necessary to insure that the

5 responsibilities of the Board are successfully discharged, including oversight of the revocation

6 of juvenile parole.

7

101. DEFENDANT JAMES DAVIS. Defendant Davis is Chair of the BPH. He is

8 sued herein in his official capacity. On information and belief, defendant Davis was nominated

9 to that position by defendant Schwarzenegger, and was confirmed by the Senate. Carol A.

10 Daly, the former Chair of the Board of Prison Terms – the predecessor organization to the BPH

11 – stipulated on November 17, 2003 to the Valdivia Permanent Injunction requiring

12 implementation of constitutional parole revocation procedures for adult parolees in California.

13

102. DEFENDANTS JOYCE ARREDONDO, PAUL CHABOT, JOSEPH

14 COMPTON, SUSAN MELANSON, and CHUCK SUPPLE. Defendants Joyce Arredondo,

15 Paul Chabot, Joseph Compton, Susan Melanson, and Chuck Supple are Commissioners of the

16 BPH of the State of California, assigned to hear juvenile matters. They are sued herein in their

17 official capacities. On information and belief, defendants Arredondo, Chabot, Compton,

18 Melanson, and Supple were appointed to their positions by defendant Schwarzenegger and

19 were confirmed by the Senate. As Commissioners, these defendants are responsible for the

20 operation and policy making of the BPH, including the juvenile parole revocation function.

21

CLASS ACTION ALLEGATIONS

22

103. Pursuant to Rule 23 of the Federal Rules of Civil Procedure, this suit is brought

23 on behalf of the named plaintiffs on their own behalf and on behalf of all other persons

24 similarly situated.

25

104. This is a civil rights proceeding. The relief requested is declaratory and

26 injunctive; damages for individual plaintiffs are not sought in these proceedings.

27

105. The class is composed of the following persons, subject to defendants’ dominion

28 and control: (1) juvenile parolees in California who are in the community under parole

24

FIRST AMENDED CIVIL CLASS ACTION COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

1 supervision or who are at large; (2) juvenile parolees in custody in California as alleged parole

2 violators, and who are awaiting revocation of their parole; and (3) juvenile parolees in

3 California who are in custody, having been found in violation of parole and returned to

4 custody. The plaintiff class includes numerous “individuals with disabilities” as that term is

5 defined in Section 504 of the Rehabilitation Act of 1973, (‘Section 504”), 29 U.S.C. section

6 705(20), and the Americans with Disabilities Act (“ADA”), 42 U.S.C. section 12102(2).

7

106. The members of the class are so numerous that joinder of all members is

8 impracticable. The size of the class is estimated to be nearly 3500 juveniles on parole and not

9 in custody, and hundreds of other juveniles serving time as parole violators in custody.

10

107. The instant suit involves questions of law or fact common to all the members of

11 the class, and the relief sought will apply to all of them. The allegations made herein are that

12 the defendants, among other things, are engaged in a pattern and practice of remanding

13 juvenile parolees to custody without due consideration of the right to counsel and without

14 affording them a fair opportunity to present their position, in violation of the Fourteenth

15 Amendment to the United States Constitution’s guarantees of due process and equal protection

16 of the law. The defendants’ alleged illegal pattern and practice of violation of law is generally

17 applicable to all members of the plaintiff class.

18

108. The claims of the representative plaintiffs are typical of the claims of the class.

19

109. The representative plaintiffs are capable, through counsel, of fairly and

20 adequately protecting and representing the interests of the class.

21

110. The common questions of law and fact generally described herein predominate

22 over questions affecting only individual members, and a class action is superior to other

23 methods for adjudicating the controversy. Upon information and belief, there are few or no

24 class members who have the financial means to fund litigation such as this. Moreover, there is

25 a risk of inconsistent or varying adjudications which might be obtained by individual members

26 of the class which would establish incompatible standards of conduct for the defendants.

27 Further, the success of any individual litigant would not necessarily provide any relief to the

28 thousands of other members of the class who were similarly entitled to relief, but who are

25

FIRST AMENDED CIVIL CLASS ACTION COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

1 unable to seek such redress. Finally, the equitable remedy available to any individual juvenile

2 parolee presents the prospect of mootness, because such a remedy (if afforded) would be

3 granted, if at all, only after an individual juvenile parolee had served most, if not all, of his or

4 her illegal custody. Because of the nature and duration of the constitutional violation, which

5 often comes more than once to the same individual and occurs between an alleged parole

6 violation and the end of a revocation proceeding or a revocation term, the harm is one capable

7 of repetition yet evading review.

8

111. Defendants have acted or refused to act on grounds generally applicable to the

9 class, making appropriate injunctive and declaratory relief with respect to the class as a whole.

10 A declaration and a general, final injunction will serve to redress the claims of the members of

11 the class against the illegal actions of the defendants.

12

112. The attorneys for plaintiffs in this proceeding are able to fairly and adequately

13 represent the plaintiff class, because they are experienced and knowledgeable regarding

14 criminal and constitutional law, juvenile justice, and prisoners’ rights and remedies.

15

STATEMENT OF CLASS CLAIMS

16

113. The named defendants, individually and/or in union, have control of juvenile

17 parolees while they are serving their initial term, while they are on parole after release from

18 their initial term, while charged with a violation of parole, during parole revocation

19 proceedings, and after any disposition is made returning the juvenile parolee to DJJ custody.

20

114. The CDCR is the governmental agency which has the immediate, day-to-day

21 charge of management and custody of juvenile parolees. (Cal. Govt. Code §§ 12838, 12838.3;

22 Cal. Penal Code § 6001; Cal. Welf. & Inst. Code § 1710.) The CDCR, through the DJJ, sets

23 the conditions of parole and, within limits, the length of parole.

24

115. Collectively, the BPH has the statutory power to establish and enforce rules and

25 regulations on the subject of juvenile parole. (Cal. Welf. & Inst. Code §§ 1719, 1725, 1766.)

26

116. Since July 1, 2005, the BPH has had the exclusive power to conduct hearings on

27 juvenile parole proceedings and to order juvenile parolees returned to DJJ custody. Prior to

28 that, the power was vested in the Youth Authority Board (YAB), and before that, the Youthful

26

FIRST AMENDED CIVIL CLASS ACTION COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

1 Offender Parole Board (YOPB). The pattern and practice of the revocation function, whether

2 in the BPH, the YAB, or the YOPB, has been and is violative of constitutional due process and

3 equal protection and the constitutional right to counsel, as articulated in this complaint.

4

117. The BPH employs deputy commissioners or hearing officers to whom the Board

5 may assign appropriate duties, including that of hearing parole proceedings and making

6 decisions. Deputy Commissioners are appointed by the Chairman of the BPH and answer to

7 the Chairman. Upon information and belief, most juvenile parole revocation proceedings are

8 conducted by hearing officers.

9

A. CONSTITUTIONAL RIGHT TO COUNSEL

10

(Against the Individual Defendants)

11

118. The allegations contained in Paragraphs 1 through 117 of this Complaint are

12 incorporated herein by reference as though fully set forth.

13

119. The members of the plaintiff class have been and are continually being denied

14 the constitutional right to counsel under the United States Constitution as interpreted in

15 Gagnon v. Scarpelli, 411 U.S. 778 (1973) and related decisions. Examples of such

16 unconstitutional conduct include the following:

17

(a) defendants are following a pattern and practice of denying counsel to

18

juvenile parolees in violation of existing constitutional standards in almost

19

all cases of juvenile parole proceedings;

20

(b) when deciding whether to appoint counsel, defendants do not consider the

21

overwhelming need for counsel among juvenile parolees due to factors

22

including their age and maturity levels; their status as minors; lack of

23

facility with written or spoken English; low levels of reading ability and

24

educational achievement; learning disabilities; developmental disabilities;

25

or any of a range of communicative, cognitive, mental, emotional and

26

other disabilities impeding their ability to advocate for themselves;

27

(c) when deciding whether to appoint counsel, defendants do not consider the

28

complexity of a juvenile parolee’s case or the difficulty of developing or

27

FIRST AMENDED CIVIL CLASS ACTION COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

1

presenting a defense, including factors in mitigation;

2

(d) purported “waivers” of counsel, of hearings, and other rights by juvenile

3

parolees are not knowing, voluntary and intelligent;

4

(e) juvenile parolees are not permitted to retain their own counsel to represent

5

them;

6

(f) when counsel is permitted, attorneys are not informed of any difficulties

7

their clients have in communicating or participating in revocation

8

proceedings, and they are not allowed adequate time to represent the

9

parolee properly at each stage in light of those difficulties;

10

(g) counsel are not required to be provided with juvenile parolees’ files in

11

order to prepare for hearings;

12

(h) when counsel is permitted, the right to meaningful representation is

13

denied by, among other things, the imposition of unfair and unreasonable

14

limits on counsel’s time and fees;

15

(i) there are no standards, guidelines, or training for effective assistance of

16

appointed counsel;

17

(j) when counsel is permitted, attorneys are in some cases forbidden to speak

18

at juvenile parole revocation hearings and other parole proceedings; and

19

(k) juvenile parolees are denied a meaningful opportunity to appeal a denial

20

of counsel.

21

120. The members of the plaintiff class also have been and are continually being

22 denied the constitutional rights to call witnesses and present testimony and to confront adverse

23 witnesses. Examples of such unconstitutional conduct include the following:

24

(a) juvenile parolees are denied the right to be heard in person and to

25

subpoena and present documentary evidence;

26

(b) juvenile parolees are denied the right to subpoena and present witnesses in

27

their favor; and

28

(c) juvenile parolees are denied their constitutional right to confront and

28

FIRST AMENDED CIVIL CLASS ACTION COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

1

cross-examine witnesses against them because adverse testimony is often

2

presented in the form of hearsay.

3

121. Under Gagnon and related decisions, parolees must be supplied representation in

4 revocation proceedings if they are less than fully capable of speaking effectively for

5 themselves, the relevant facts are complex or otherwise difficult to present, they have

6 mitigating evidence that makes revocation inappropriate, and/or they present a colorable claim

7 that they did not commit the alleged violation. Defendants routinely deny juvenile parolees

8 their right to counsel by failing to consider these factors, even in cases in which they know or

9 should know of reasons why appointed counsel is necessary.

10

122. The restrictions on representation by counsel during revocation proceedings,

11 including the refusal to allow retained counsel and to allow attorneys to speak at certain

12 hearings, severely interfere with the duty of attorneys to represent their clients.

13

123. In addition, juvenile parolees are denied their constitutional right to confront

14 adverse witnesses because adverse testimony is often presented in the form of hearsay.

15

124. Under California law, the constitutional questions raised by this suit cannot be

16 raised in California administrative proceedings. While, on information and belief, there is a

17 process of administrative review from a disposition of revocation and re-commitment after

18 hearing, the administrative review is neither prompt nor effectual. Defendants routinely fail to

19 notify juvenile parolees of their right to appeal, and routinely fail to promptly allow, consider

20 and dispose of administrative appeals.

21

125. In those rare judicial challenges made to the juvenile parole revocation process,

22 the state attorney routinely claims that administrative appeal is an avenue of relief that must be

23 exhausted before a juvenile parolee is entitled to request judicial process.

24

126. The terms of incarceration imposed upon juvenile parolees make it essentially

25 impossible to file a state petition for habeas corpus to relieve the unlawful confinements in

26 individual cases, with or without first exhausting state remedies. Moreover, California state

27 habeas corpus is an extraordinary remedy, only available in the discretion of the superior court

28 to review an utterly baseless decision, and is not a process of administrative review.

29

FIRST AMENDED CIVIL CLASS ACTION COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

1

127. California state habeas corpus affords a hearing and counsel to a petitioner if, but

2 only if, he or she can adequately plead a prima facie case of jurisdictional magnitude. A

3 parolee who challenges defendants’ denial of his or her constitutional rights to counsel and/or

4 due process in the state courts therefore cannot secure any remedy, or any realistic remedy, as

5 non-compliance with these federal mandates is not deemed jurisdictional.

6

128. Pursuant to California Rules of Court, a petition for habeas corpus relief will

7 usually be pending at least 60 to 90 days before any relief will be granted. The relief provided

8 in state habeas corpus, if the petition does not first become moot while the case is pending, is

9 likely to be limited to a rehearing. Thus, any prior deprivation of a juvenile parolee’s

10 constitutional rights may be “cured,” even if egregious, without consequence to the juvenile

11 parolee’s custody status.

12

B. CONSTITUTIONAL DUE PROCESS

13

(Against the Individual Defendants)

14

129. The allegations contained in Paragraphs 1 through 128 of this Complaint are

15 incorporated herein by reference as though fully set forth.

16

130. The members of the plaintiff class have been and are continually being denied

17 constitutional due process under the Fourteenth Amendment to the United States Constitution.

18 Examples of such unconstitutional conduct include the following:

19

(a) preliminary parole revocation hearings are not being conducted, thereby

20

denying juvenile parolees, among other things, a meaningful opportunity

21

to challenge the absence of constitutional standards leading to their arrest

22

or the right to appeal their detention;

23

(b) written notice of charges and the reasons for detention are not promptly

24

given, and juvenile parolees are denied disclosure of evidence against

25

them;

26

(c) reasonable opportunity for investigation is not afforded, a problem

27

exacerbated by the routine removal of juvenile parolees from their

28

community of residence;

30

FIRST AMENDED CIVIL CLASS ACTION COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

1

(d) waiver of hearings and other rights by juvenile parolees is fundamentally

2

unfair, because, among other things, juvenile parolees are unlawfully

3

influenced to waive their constitutional right to due process and other

4

rights in the adjudication and disposition of allegations of parole violation

5

without full advance notice of those rights;

6

(e) juvenile parole revocation proceedings are held from 45 days to months

7

after a juvenile parolee is arrested, and juvenile parolees are denied a

8

meaningful opportunity to appeal a denial of counsel, to subpoena and

9

present witnesses and evidence, or to confront and cross-examine adverse

10

witnesses;

11

(f) juvenile parolees are routinely revoked and returned to DJJ facilities

12

without full and fair consideration of alternative or remedial sanctions

13

such as drug treatment programs and half-way houses;

14

(g) juvenile parolees are not entitled to a written record of revocation hearings

15

and the basis for decisions made therein;

16

(h) juvenile parolees are subjected to additional parole proceedings and

17

temporary detentions with no discernable standards or guidelines, no

18

credit for time served in custody on a parole hold before the parole

19

revocation hearing, no adequate opportunity to obtain records of the

20

proceedings or to appeal decisions, and without representation by counsel;

21

and

22

(i) juvenile parolees are not provided adequate pre-release and re-entry

23

services to assist their return to the community, therefore increasing the

24

likelihood that they will be subjected to further unconstitutional

25

conditions of confinement and parole proceedings.

26

131. The Valdivia court has already determined that a unitary parole hearing system

27 violates adult parolees’ right to due process of law.

28

132. Through orders issued in the Valdivia case, the defendants herein are aware that

31

FIRST AMENDED CIVIL CLASS ACTION COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

1 aspects of the juvenile parole system in California are unconstitutional, including but not

2 limited to the pervasive failure to hold preliminary or probable cause hearings, long delays

3 before preliminary hearings and great distances between the alleged parole violation and

4 preliminary hearings, long delays before final revocation hearings, denial of appointed counsel,

5 restrictions making appointed counsel ineffective, denial of the ability to present evidence and

6 testimony and to confront adverse witnesses, and unavailability of remedial sanctions. Despite

7 having agreed to implement a revocation system for adult parolees that protects their right to

8 due process, these same defendants continue to operate an unconstitutional and arbitrary

9 system for juveniles.

10

C. CONSTITUTIONAL EQUAL PROTECTION

11

(Against the Individual Defendants)

12

133. The allegations contained in Paragraphs 1 through 132 of this Complaint are

13 incorporated herein by reference as though fully set forth.

14

134. The Fourteenth Amendment of the United States Constitution guarantees the

15 right to equal protection of the laws. In violation of that provision, defendants have established

16 a parole system that affects two or more similarly situated groups in an unequal manner.

17

135. The Welfare and Institutions Code provides that following a commitment, a

18 juvenile may be given “liberty under supervision and upon conditions . . . best designed for the

19 protection of the public.” (Cal. Welf & Inst. Code § 1766(a)(1).) Adult parole is similarly

20 defined as a supervised release into the community, which involves monitoring of the parolee

21 for public safety reasons and which may reasonably restrict a parolee’s liberty and privacy

22 interests.

23

136. As such, juvenile and adult parolees are similarly situated with respect to the

24 legitimate purpose of parole proceedings, i.e., to determine whether an incarcerated offender is

25 ready for supervised release and whether, after release, any conduct on the part of the parolee

26 has posed a reasonable threat to public safety.

27

137. Because many of the defendants herein or their predecessors have agreed to obey

28 the Valdivia Permanent Injunction, in California, adult and juvenile parolees are being afforded

32

FIRST AMENDED CIVIL CLASS ACTION COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

1 different rights in parole proceedings, even though they face the same consequences:

2 incarceration and loss of liberty. Adult parolees, who are arguably better educated, more

3 intelligent and in a better position to represent themselves in revocation proceedings, are

4 afforded the right to effective assistance of counsel in parole proceedings, the right to subpoena

5 and present witnesses and evidence to the same extent and under the same terms as the state,

6 and the right to timely preliminary and final revocation proceedings.

7

138. A juvenile parolee in California accused of the same parole violation as an adult

8 is afforded none of these rights. Many juvenile parolees are, in fact, over the age of 18 and

9 therefore legally considered adults. Nonetheless, if under DJJ jurisdiction, these adult-aged

10 juvenile parolees receive little to no due process protection in parole proceedings.

11

139. The Valdivia Court has already determined that a unitary parole hearing system

12 violates the right to due process of law, and defendants herein have agreed to abolish that

13 system for adult parolees.

14

140. Parole proceedings affect a fundamental right – the right to liberty. Agreeing to

15 provide due process rights and protections, including but not limited to appointed counsel in

16 100 percent of cases, to adults, while refusing to extend those protections to juveniles is a

17 distinction that is arbitrary, capricious, and lacking in any rational basis or compelling

18 justification. Appointment of counsel for 100 percent of juveniles is required as a matter of

19 equal protection because there is no rational basis or compelling justification for the

20 distinction.

21

141. This is especially true given the conditions prevailing at most of California’s

22 juvenile facilities, as determined through the Consent Decree in Farrell v. Hickman, Alameda

23 Superior Court, No. RG503079344 (formerly Farrell v. Allen). The horrific conditions at these

24 juvenile facilities, which include excessive violence, use of 23-hour-a-day lockdowns, and

25 failure to provide adequate mental health and medical care, all require that juveniles receive

26 greater due process prior to re-commitment. Instead, they receive less than their adult

27 counterparts, in violation of the federal guarantee of equal protection of the law.

28

142. Approximately 4100 youth are now on parole in California. This figure may be

33

FIRST AMENDED CIVIL CLASS ACTION COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

1 compared with the approximately 153,000 adults currently on parole. In Fiscal Year 2004-

2 2005, 941 juveniles were returned to YA institutions for parole violations. Juvenile parolees

3 therefore make up a small proportion of the total parolees facing revocation proceedings in

4 California. It is irrational and arbitrary for defendants to extend due process protections to

5 adults while denying them to juveniles. Because defendants are responsible for revocation

6 proceedings for both juveniles and adults, the federal and state guarantees of equal protection

7 of the law require that they protect youthful parolees’ constitutional rights to the same extent as

8 adults.

9

D. VIOLATION OF THE AMERICANS WITH DISABILITIES ACT AND

SECTION 504 OF THE REHABILITATION ACT

10

(Against All Defendants)

11

12

143. The allegations contained in Paragraphs 1 through 142 of this Complaint are

13 incorporated herein by reference as though fully set forth.

14

144. At all times relevant to this action, the ADA, 42 U.S.C. section 12101 et seq.,

15 was in full force and effect in the United States.

16

145. The plaintiff class includes numerous “individuals with disabilities” as that term

17 is defined in Section 504, 29 U.S.C. section 705(20), and the ADA.

18

146. The ADA, 42 U.S.C. section 12132, prohibits public entities from discriminating

19 against a qualified individual with a disability in the provision of services, programs, or

20 activities.

21

147. The California Department of Corrections and Rehabilitation receives federal

22 financial assistance as that term is used in Title 29 U.S.C. section 794.

23

148. In violation of Section 504 and the ADA, defendants have failed to develop

24 adequate policies and practices that enable them to identify, assess or reasonably accommodate

25 juvenile parolees with disabilities so that those individuals can fully participate in revocation

26 and other parole proceedings. Defendants have failed to develop policies and practices for

27 providing juvenile parolees with disabilities with reasonable modifications affording them

28 access to programs, activities and services available generally to other individuals under their

34

FIRST AMENDED CIVIL CLASS ACTION COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

1 custody and control.

2

149. Members of the plaintiff class with disabilities have been and are continually

3 being denied reasonable accommodations in parole revocation proceedings. Defendants have

4 failed to make individualized assessments of juvenile parolees’ ability to participate in and

5 comprehend parole revocation proceedings conducted by defendants.

6

150. Defendants have failed to ensure equally effective communication and to furnish

7 appropriate auxiliary aids and services and effective assistance where necessary to afford

8 juvenile parolees the opportunity to participate fully in revocation and other parole proceedings

9 to the same extent as other individuals under their custody and control.

10

151. Defendants hold parole proceedings in locations that are not accessible to

11 juvenile parolees with mobility impairments.

12

152. Defendants’ conduct constitutes an ongoing and continuous violation of Section

13 504 and the ADA, and unless restrained from doing so, defendants will continue to violate the

14 law.

15

PRAYER FOR RELIEF

16

WHEREFORE, PLAINTIFFS RESPECTFULLY PRAY THAT THIS COURT:

17

1. Assert jurisdiction over this matter;

18

2. Enter an Order certifying a class of all juvenile parolees in California including:

19 (1) juvenile parolees in California who are in the community under parole supervision or who

20 are at large; (2) juvenile parolees in custody as alleged parole violators, and who are awaiting

21 revocation of their parole; (3) juvenile parolees who are in custody, having been found in

22 violation of parole and returned to custody;

23

3. Adjudge and declare that the policies, patterns, conduct and practices described

24 above are in violation of the rights of the plaintiffs and the class they represent under the

25 Fourteenth Amendment to the United States Constitution, under Gagnon and related decisions,

26 and under Section 504 and the ADA;

27

4. Preliminarily and permanently enjoin defendants, their agents, employees and all

28 persons acting in concert with them, from subjecting plaintiffs and the class they represent to

35

FIRST AMENDED CIVIL CLASS ACTION COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

1 the unconstitutional and illegal policies, patterns, conduct and practices described above;

2

5. Order defendants to end their practices of denying plaintiffs and the class they

3 represent their constitutional rights to due process and equal protection of law;

4

6. Award plaintiffs the costs of this suit and reasonable attorneys’ fees and litigation

5 expenses;

6

7. Retain jurisdiction of this case until defendants have fully complied with all

7 orders of this Court, and there is a reasonable assurance that defendants will continue to 8 comply in the future absent continuing jurisdiction; and

9

8. Award such other and further relief as the Court deems just and proper.

10

11 Dated: September 20, 2006

ROSEN, BIEN & ASARO LLP

12

13

By /s/ Michael W. Bien

Michael W. Bien

14

Attorneys for Plaintiffs

15

16

17

18

19

20

21

22

23

24

25

26

27

28

36

FIRST AMENDED CIVIL CLASS ACTION COMPLAINT FOR

DECLARATORY AND INJUNCTIVE RELIEF

 
 Case 2:06-cv-02042-LKK-GGH Document 34 Filed 01/23/2007 Page 1 of 22

1 BINGHAM McCUTCHEN LLP KAREN KENNARD – 141925
2 KRISTEN A. PALUMBO – 215857 BRIANA LYNN MORGAN – 239977
3 Three Embarcadero Center San Francisco, CA 94111-4067
4 Telephone: (415) 393-2000 Facsimile: (415) 393-2286
5 PRISON LAW OFFICE
6 DONALD SPECTER – 83925 General Delivery
7 San Quentin, California 94964 Telephone: (415) 457-9144
8 ROSEN, BIEN & GALVAN, LLP
9 MICHAEL W. BIEN – 096891 GAY CROSTHWAIT GRUNFELD – 121944
10 MEGHAN R. LANG – 221156 MARIA MORRIS – 223903
11 SARAH LAUBACH – 240526 315 Montgomery Street, Tenth Floor
12 San Francisco, California 94104 Telephone (415) 433-6830
13 YOUTH LAW CENTER
14 SUSAN L. BURRELL – 074204 CAROLE SHAUFFER – 100226
15 CORENE KENDRICK – 226642 200 Pine Street, Suite 300
16 San Francisco, CA 94104 Telephone (415)543-3379
17 Attorneys for Plaintiffs, individually and on behalf of all
18 other similarly situated juvenile parolees in California

19

UNITED STATES DISTRICT COURT

20

EASTERN DISTRICT OF CALIFORNIA

21

22

23 L.H., A.Z., D.K., and D.R., on behalf of themselves and all other similarly situated
24 juvenile parolees in California,

25

Plaintiffs,

v.

26

ARNOLD SCHWARZENEGGER, Governor,

27 State of California, JAMES E. TILTON,

Secretary (A), California Department of

28 Corrections and Rehabilitation (“CDCR”);

No. 2:06-CV-02042-LKK-GGH

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION

Date:

February 20, 2007

Time:

10:00 a.m.

Courtroom: 4 (15th Floor)

Before: Hon. Lawrence K. Karlton

SF/21700260.1/0999995-2960011906

Case No. 2:06-CV-02042-LKK-GGH

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION

Case 2:06-cv-02042-LKK-GGH Document 34 Filed 01/23/2007 Page 2 of 22

1 KINGSTON “BUD” PRUNTY, Undersecretary, CDCR; BERNARD WARNER, Chief Deputy
2 Secretary of the Division of Juvenile Justice; JOE MONTES, Director, Division of Juvenile Parole;
3 DENNIS DULAY, Acting Deputy Director of the Division of Juvenile Parole Operations; JOHN
4 MONDAY, Executive Director of the Board of Parole Hearings (“BPH”); JAMES DAVIS, Chair
5 of the BPH; JOYCE ARREDONDO, PAUL CHABOT, JOSEPH COMPTON, SUSAN
6 MELANSON, and CHUCK SUPPLE, Commissioners of the BPH assigned to hear
7 juvenile matters; CDCR; DIVISION OF JUVENILE JUSTICE; and BOARD OF
8 PAROLE HEARINGS,

9

Defendants.

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

SF/21700260.1/0999995-2960011906

Case No. 2:06-CV-02042-LKK-GGH

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION

Case 2:06-cv-02042-LKK-GGH Document 34 Filed 01/23/2007 Page 3 of 22

1

TABLE OF CONTENTS

2

Page

3 I. 4 II. 5 6 7 8 9 10 III. 11

INTRODUCTION ............................................................................................................. 1 CLASS CERTIFICATION IS APPROPRIATE IN THIS CASE ..................................... 5 A. Standards for Class Certification ........................................................................... 6 B. This Action Satisfies Rule 23(a) ............................................................................ 6
1. The Numerosity Requirement Is Satisfied ................................................. 7 2. Common Issues of Law Or Fact Exist ....................................................... 9 3. The Class Representatives’ Claims Are Typical Of The Claims Of
The Class.................................................................................................. 10 4. The Class Is Adequately Represented...................................................... 11 C. This Action Satisfies The Criteria Of Rule 23(b) ................................................ 13 CONCLUSION ................................................................................................................ 15

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

i

Case No. 2:06-CV-02042-LKK-GGH

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION

Case 2:06-cv-02042-LKK-GGH Document 34 Filed 01/23/2007 Page 4 of 22

1

TABLE OF AUTHORITIES

2

Page

3

Cases

4

Alexander v. Choate, 469 U.S. 287 (1985) .................................................................................... 5

5

Amchem Products, Inc. v. Windsor, 521 U.S. 591 (1997) ............................................................. 6

6

Armstrong v. Davis, 275 F.3d. 849, 879 (9th Cir. 2001), cert. denied, 537 U.S.

7

812 (2002) .................................................................................................................. 4, 5, 9, 10

8 Armstrong v. Davis, No. C-94-2307 (N.D. Cal. 2001) .................................................................. 2

9 Armstrong, Valdivia, Clark v. California, 123 F.3d 1267 (9th Cir. 1997) .................................. 12

10 Armstrong, Valdivia, Gates, Marin v. Rushen, No. C-80-0012 MHP (N.D. Cal.

1980) ...................................................................................................................................... 12

11

Arnold v. United States Theatre Circuit, Inc., 158 F.R.D. 439 (N.D. Cal. 1994)...................... 6, 7

12

Baby Neal ex rel. Kanter v. Casey, 43 F.3d 48 (3d Cir.1994) ....................................................... 9

13

Bafus v. Aspen Realty, Inc., 236 F.R.D. 652 (D. Ida. 2006) .......................................................... 8

14

Blackie v. Barrack, 524 F.2d 891 (9th Cir. 1975).......................................................................... 6

15

Clarkson v. Coughlin, 145 F.R.D. 339 (S.D.N.Y. 1993) ....................................................... 6, 8, 9

16

Coleman v. Wilson, No. CIVS 90-0520 LKK-JFM (E.D. Cal. 1994).......................................... 12

17

Coleman, and Stone v. City and County of San Francisco, No. C-78-2774 WHO

18

(N.D. Cal. 1978)..................................................................................................................... 12

19 Consolidated Rail Corp. v. Town of Hyde Park, 47 F.3d 473 (2d Cir. 1995) ............................... 7

20 Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974)................................................................ 6, 10

21 Ellis v. Naval Air Rework Facility Alameda, Cal., 404 F. Supp. 391 (N.D. Cal.

1975), rev’d on other grounds, 608 F.2d 1308 (9th Cir. 1979) ............................................. 10

22

Faheem-El v. Klincar, 600 F. Supp. 1029 (N.D. Ill. 1984)............................................................ 5

23

Farrell v. Harper, No. RG03079344 (Alameda Super. Ct. 2003) ............................................... 12

24

Gagnon v. Scarpelli, 411 U.S. 778 (1973)..................................................................................... 1

25

Gates v. Gomez, No. 87-CV-1636 LKK-JFM (E.D. Cal. 1987) .................................................. 12

26

Gates, Marin v. Rushen, No. C-80-0012 MHP (N.D. Cal. 1980) ................................................ 12

27

Geraghty v. United States Parole Comm’n, 719 F.2d 1199 (3d Cir. 1983)................................... 5

28

ii

Case No. 2:06-CV-02042-LKK-GGH

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION

Case 2:06-cv-02042-LKK-GGH Document 34 Filed 01/23/2007 Page 5 of 22

1

TABLE OF AUTHORITIES

(continued)

2

Page

3 Hanlon v. Chrysler Corp., 150 F.3d 1011 (9th Cir. 1998)......................................................... 7, 9

4 Hanon v. Dataproducts Corp., 976 F.2d 497 (9th Cir. 1992)...................................................... 10

5 Harik v. Cal. Teachers Ass'n, 326 F.3d 1042 (9th Cir. 2003)........................................................ 7 6 Harris v. Palm Springs Alpine Estates, Inc., 329 F.2d 909 (9th Cir. 1964).................................... 7

7 Hollingsworth v. Orange County, No. 51-08-65 (Orange County Super. Ct. 1987) ................... 12

8 Inmates of Attica Corr. Facility v. Rockefeller, 453 F.2d 12 (2d Cir. 1971) ............................... 13

9 Inmates of Lycoming County Prison v. Strode, 79 F.R.D. 228 (M.D. Pa. 1978)......................... 10

10 Jimenez v. Domino's Pizza, Inc., 238 F.R.D. 241 (C.D. Cal. 2006) .................................... 7, 8, 10

11 Jordan v. Los Angeles County, 669 F. 2d 1311 (9th Cir. 1982), vacated on other

grounds, 459 U.S. 810 (1982).............................................................................................. 7, 8

12

Jose P. v. Ambach, 669 F.2d 865 (2d Cir. 1982) ........................................................................... 6

13

Keele v. Wexler, 149 F.3d 589 (7th Cir. 1998) .............................................................................. 6

14 Kellogg v. Shoemaker, 46 F.3d 503 (6th Cir. 1995) ....................................................................... 5

15

Kinney v. Yerusalim, 9 F.3d 1067 (3d Cir. 1993) .......................................................................... 5

16 LaDuke v. Nelson, 762 F. 2d 1318 (9th Cir. 1985) ......................................................................... 9

17

Lerwill v. Inflight Motion Pictures, Inc., 582 F.2d 507 (9th Cir.1978) ....................................... 11

18

Long v. Gaines, 167 F. Supp.2d 75 (D. D.C. 2001)....................................................................... 5

19

Madrid v. Gomez, No. C-90-3094 THE (N.D. Cal. 1990)........................................................... 12

20

Mawson v. Wideman, 84 F.R.D. 116 (M.D. Pa. 1979) ................................................................ 10

21

Mississippi v. Phillips, 456 U.S. 960 (1982).................................................................................. 9

22

Morrissey v. Brewer, 408 U.S. 471 (1972) .................................................................................... 1

23

New Mexico Assn. of Retarded Citizens v. State of New Mexico, 678 F.2d 847

24

(10th Cir. 1982)........................................................................................................................ 6

25 Nick O. Terhune, No. CVS 89-0755 (E.D. Cal. 1989)................................................................. 12

26 Noren v. Straw, 578 F. Supp. 1 (D. Mont. 1982) ......................................................................... 11

27 Paris v. McCarthy, No. 5-84-1699 RAR (E.D. Cal. 1986).......................................................... 12

28 Pederson v. Louisiana State Univ., 213 F.3d 858 (5th Cir. 2000) ............................................. 8, 9

iii

Case No. 2:06-CV-02042-LKK-GGH

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION

Case 2:06-cv-02042-LKK-GGH Document 34 Filed 01/23/2007 Page 6 of 22

1

TABLE OF AUTHORITIES

(continued)

2

Page

3 Penn v. San Juan Hospital, Inc., 528 F.2d 1181 (10th Cir. 1975) ............................................... 11

4 Perez v. Tilton, No. 05-5241 (N.D. Cal. 2005) ............................................................................ 12

5 Phillips v. Joint Legislative Committee on Performance and Expenditure Review,

637 F. 2d 1014 (5th Cir. 1981)................................................................................................. 9

6

Plata v. Davis, No. C-01-1351 TEH (N.D. Cal. 2001) ................................................................ 12

7

Shaw v. San Francisco, No. 915763 (San Francisco Super. Ct. 1980)........................................ 12

8

Steven L. v. Kern County, No. CV-F-83-189 FDP (E.D. Cal. 1983) ........................................... 12

9

Taylor v. Rushen, No. 80-0139 SAW (N.D. Cal. 1980) .............................................................. 12

10

Thompson v. Enomoto, No. 79-1630 SAW (N.D. Cal. 1981)...................................................... 12

11

Toussaint v. McCarthy, 597 F. Supp. 1388 (N.D. Cal. 1984), aff’d in part, rev’d in

12

part, 801 F. 2d 1388 (9th Cir. 1986) ...................................................................................... 12

13 Valdivia v. Schwarzenegger, 206 F. Supp.2d 1968 (E.D. Cal. 2002) ............................................ 5

14 Valdivia v. Schwarzenegger, No. S-94-0671 (E.D. Cal.)............................................................... 2 15 Walters v. Reno, 145 F.3d 1032 (9th Cir. 1998) ........................................................................... 13

16 Wilber v. Warner, No. 312092 (San Francisco Super. Ct. 2000)................................................. 12

17 Yaris v. Special School District of St. Louis County, 780 F.2d 724 (8th Cir. 1986)...................... 6

18 Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180 (9th Cir. 2001)........................................... 6

19 Statutes
20 29 U.S.C. § 794 .............................................................................................................................. 1
21 42 U.S.C. § 12101 .......................................................................................................................... 1
22

23

Other Authorities

24 1 Newberg on Class Actions, § 3.05 (2d Ed.)................................................................................ 7

25 1 Newberg on Class Actions, § 3:5 (4th Ed. 2004)........................................................................ 7

26

27

28

iv

Case No. 2:06-CV-02042-LKK-GGH

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION

Case 2:06-cv-02042-LKK-GGH Document 34 Filed 01/23/2007 Page 7 of 22

1

TABLE OF AUTHORITIES

(continued)

2

Page

3

Rules

4 Fed. R. Civ. P. 23 ................................................................................................................... 13, 15

5 Fed. R. Civ. P. 23(a)............................................................................................................. 6, 7, 13

6 Fed. R. Civ. P. 23(a)(1) .................................................................................................................. 9

7 Fed. R. Civ. P. 23(a)(2) ............................................................................................................ 9, 10

8 Fed. R. Civ. P. 23(a)(3) .......................................................................................................... 10, 11

9 Fed. R. Civ. P. 23(a)(4) ................................................................................................................ 12

10 Fed. R. Civ. P. 23(b) ................................................................................................................ 6, 13

11 Fed. R. Civ. P. 23(b)(1)(A) .......................................................................................................... 14

12 Fed. R. Civ. P. 23(b)(1)(B) .......................................................................................................... 14

13 Fed. R. Civ. P. 23(b)(2)...................................................................................................... 4, 13, 14

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

v

Case No. 2:06-CV-02042-LKK-GGH

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION

Case 2:06-cv-02042-LKK-GGH Document 34 Filed 01/23/2007 Page 8 of 22

1 I. INTRODUCTION

2

Plaintiffs, on behalf of themselves and all other similarly situated juvenile

3 parolees in California (collectively, “the Class”), sue the Governor of the State of California and

4 various state correctional officials (“Defendants”) for systematically violating the constitutional

5 and statutory rights of juvenile parolees in parole revocation proceedings. In the First Amended

6 Civil Class Action Complaint for Declaratory and Injunctive Relief (“FAC”), Plaintiffs, juvenile

7 parolees who are presently under the control of the California Department of Corrections and

8 Rehabilitation (“CDCR”), claim that Defendants’ conduct: (1) systematically denies Plaintiffs

9 and the Class due process under the Fourteenth Amendment to the United States Constitution, as

10 interpreted in Morrissey v. Brewer, 408 U.S. 471 (1972), and related decisions;

11 (2) systematically denies Plaintiffs and the Class the right to counsel under the United States

12 Constitution, as interpreted in Gagnon v. Scarpelli, 411 U.S. 778 (1973), and related decisions;

13 (3) systematically denies Plaintiffs and the Class equal protection of the laws under the

14 Fourteenth Amendment to the United States Constitution; (4) systematically violates the

15 Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101 et seq.; and (5) systematically

16 violates Section 504 of the Rehabilitation Act of 1973 (“Section 504”), 29 U.S.C. § 794.

17

The rights at issue here are basic, fundamental rights. For example, Plaintiffs

18 seek to ensure, for themselves and for all Class members, that there is a prompt preliminary

19 hearing at which they can challenge the basis for their detention. Currently, juvenile parolees are

20 taken out of the community – away from jobs, school, friends, the lives they are trying to

21 reconstruct while on parole – and made to sit in jail for weeks or months before any

22 determination is made that there was probable cause to remove the individual from the

23 community. L.H., for example, remained in custody for over two months before he had any

24 hearing at all. FAC ¶ 72. A.Z. spent two and a half months in custody before he saw a hearing

25 officer. FAC ¶ 76.

26

Plaintiffs seek to ensure that they, and all Class members, are not kept in custody

27 any longer than necessary. For example, D.K. was brought into custody and held for a month

28 until his hearing, even though his parole officer recommended that he be continued on parole.

SF/21700260.1/0999995-2960011906

1

Case No. 2:06-CV-02042-LKK-GGH

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION

Case 2:06-cv-02042-LKK-GGH Document 34 Filed 01/23/2007 Page 9 of 22

1 FAC ¶ 81. By the time the Board of Parole Hearings (“BPH”) finally held his hearing and

2 released him, he had lost his job. Id. Even when the BPH determines that a juvenile parolee’s

3 parole should be revoked, the juvenile parolees are still directly harmed by the lengthy pre-

4 hearing detention; juvenile parolees like L.H. and A.Z. may receive no credit toward their

5 revocation sentence for the months they serve in custody waiting for their hearings. FAC ¶ 27.

6

Plaintiffs also seek to ensure that they and the Class are represented by counsel.

7 Juvenile parolees are young people and tend to be poorly educated. FAC ¶¶ 6-11. Yet, they are

8 required to represent themselves in parole proceedings where the process is opaque, the charges

9 may be complex, and the stakes include the possibility of being returned to custody for months

10 or even years. See, e.g., FAC ¶ 87 (D.R.’s revocation term lasted 21 months). Even when

11 juvenile parolees ask for an attorney, they may be told, as A.Z. was, that they are not likely to be

12 appointed counsel. FAC ¶ 76. The lack of counsel costs juvenile parolees dearly, as can be seen

13 from A.Z.’s failure to recognize that there was “harm” from a parole department’s month-long

14 loss of a police report, and the BPH’s refusal to credit him with time served during that month.

15 FAC ¶ 77.

16

Every month, dozens of class members are deprived of basic rights – including

17 the right to a prompt preliminary hearing, the right to prompt notice of the charges against them,

18 the right to counsel, the right to put on evidence, and the right to confront witnesses against

19 them. Many of these rights are already guaranteed to adult parolees in California by the

20 injunction entered by this Court in Valdivia v. Schwarzenegger, No. S-94-0671 (E.D. Cal.)

21 (mandating, among other things, that all adult parolees receive counsel and prompt notice of the

22 charges against them, and undergo timely preliminary and final revocation hearings), and by the

23 Revised Permanent Injunction (February 11, 2002) entered by District Judge Claudia Wilken in

24 Armstrong v. Davis, No. C-94-2307 (N.D. Cal. 2001) (ordering that defendants identify, track,

25 and provide reasonable accommodations to adult parolees with disabilities at parole proceedings,

26 and requiring that adult parolees with disabilities receive access to forms in alternate formats, to

27 equipment and assistance to effectively communicate, and to a grievance procedure for

28 processing denials of requests for accommodations). See Declaration of Karen Kennard in

SF/21700260.1/0999995-2960011906

2

Case No. 2:06-CV-02042-LKK-GGH

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION

Case 2:06-cv-02042-LKK-GGH Document 34 Filed 01/23/2007 Page 10 of 22

1 Support of Plaintiffs’ Motion for Class Certification (“Kennard Dec.”), Exs. A and B. Juvenile

2 parolees are even more in need of these constitutional protections. Plaintiffs and the Class are

3 entitled to these protections. A class action is the best and probably the only way to ensure that

4 the Defendants will put an end to their unconstitutional practices.

5

By this action, Plaintiffs challenge Defendants’ policy and practice of denying

6 juvenile parolees their constitutional rights to due process, equal protection and effective

7 assistance of counsel. Plaintiffs also challenge Defendants’ policy and practice of denying class

8 members with disabilities their statutory rights under the ADA and Section 504. The challenged

9 conduct includes:

10

• Failing to conduct preliminary parole revocation hearings in violation

11

of existing constitutional standards (see, e.g., FAC ¶¶ 130(a) - (i));

12

• Denying juvenile parolees counsel during the parole revocation

13

process in violation of existing constitutional standards (see, e.g., FAC

14

¶ 119(a) - (e));

15

• Denying juvenile parolees effective assistance of counsel, in the rare

16

cases where counsel is appointed, by, among other things, imposing

17

unfair and unreasonable limits on counsel’s time and fees and by

18

failing to inform counsel of any difficulties their clients may have in

19

communicating or participating in the parole revocation proceedings

20

(see, e.g., FAC ¶¶ 55-59; 119(f) - (k));

21

• Conducting final parole revocation hearings in a manner that is

22

fundamentally unfair and in violation of due process by, among other

23

things, denying juvenile parolees their right to be heard in person and

24

their right to confront and cross-examine witnesses (see, e.g., FAC

25

¶ 120(a) - (c));

26

• Establishing a parole revocation system that treats juvenile and adult

27

parolees, who are similarly situated, in an unequal manner by

28

affording adult parolees due process and assistance of counsel in

SF/21700260.1/0999995-2960011906

3

Case No. 2:06-CV-02042-LKK-GGH

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION

Case 2:06-cv-02042-LKK-GGH Document 34 Filed 01/23/2007 Page 11 of 22

1

parole revocation proceedings while denying this right to juvenile

2

parolees (see, e.g., FAC ¶ 137);

3

• Failing to develop adequate policies and practices to identify juvenile

4

parolees with disabilities and to reasonably accommodate such

5

individuals so that they can fully participate in parole proceedings

6

(see, e.g., FAC ¶¶ 148-151).

7

Defendants’ system-wide practice of denying the Class their right to counsel and a

8 fair opportunity to challenge their parole revocation violates constitutional guarantees of due

9 process and equal protection. Also, Defendants’ conduct violates the ADA and Section 504 by

10 denying disabled class members the accommodations that are mandated so that they can

11 participate meaningfully in the parole revocation process.

12

As discussed below, courts have repeatedly certified class actions where prisoners

13 or parolees have challenged the constitutionality of parole procedures. For example, both the

14 Valdivia and Armstrong cases concern parole revocation procedures and were certified as class 15 actions.1 Notably, the Ninth Circuit affirmed class certification in the Armstrong case.

16 Armstrong v. Davis, 275 F.3d. 849, 879 (9th Cir. 2001), cert. denied, 537 U.S. 812 (2002). For

17 the same reasons that led to those decisions, this case is appropriate for class certification.

18 Accordingly, the Court should certify this case as a class action pursuant to Rule 23(b)(2) of the

19 Federal Rules of Civil Procedure (“Rule 23”).

20

By this motion, Plaintiffs ask this Court for an order certifying this case as a class

21 action pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure. The proposed class

22 consists of juvenile parolees in California, including all juvenile parolees with disabilities as that

23 term is defined in Section 504 of the Rehabilitation Act and the ADA, who are: (i) in the

24 community under parole supervision or who are at large; (ii) in custody in California as alleged

25

26

1
27

The Valdivia case was certified as a class action on December 1, 1994. See Kennard

Dec., Ex. C.

28

SF/21700260.1/0999995-2960011906

4

Case No. 2:06-CV-02042-LKK-GGH

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION

Case 2:06-cv-02042-LKK-GGH Document 34 Filed 01/23/2007 Page 12 of 22

1 parole violators, and who are awaiting revocation of their parole; and (iii) in custody, having

2 been found in violation of parole and returned to custody. See FAC ¶ 105.

3 II. CLASS CERTIFICATION IS APPROPRIATE IN THIS CASE

4

Courts, including this Court and the Ninth Circuit, have routinely certified class

5 actions where prisoners or parolees have challenged the constitutionality of parole revocation

6 procedures. See, e.g., Armstrong, 275 F.3d at 854 (Ninth Circuit affirmed class of disabled

7 prisoners and parolees who challenged the constitutionality of California’s parole and parole

8 revocation proceedings); Valdivia v. Schwarzenegger, 206 F. Supp.2d 1968, 1069 n.1 (E.D. Cal.

9 2002) (certifying class of prisoners and parolees who alleged that California’s parole revocation

10 procedures violated constitutional due process and the right to counsel). See also Kellogg v. 11 Shoemaker, 46 F.3d 503, 505 (6th Cir. 1995) (certified class of prison inmates challenged the

12 constitutionality of new Ohio parole revocation procedures); Long v. Gaines, 167 F. Supp.2d 75,

13 83-84 (D. D.C. 2001) (certifying class of approximately 400 District of Columbia parolees who

14 challenged the constitutionality of the United States Parole Commission's regulations governing

15 parole revocation procedures); Faheem-El v. Klincar, 600 F. Supp. 1029, 1037 (N.D. Ill. 1984)

16 (certifying class of parolees who challenged the constitutionality of Illinois’s parole revocation

17 procedures). The appropriate class in such cases includes individuals who are presently, or who

18 in the future may be, subject to the challenged parole procedures. Geraghty v. United States

19 Parole Comm’n, 719 F.2d 1199, 1202-1203 (3d Cir. 1983); Faheem-El, 600 F. Supp. at 1034.

20

Courts have also routinely certified class actions brought under the ADA and

21 Section 504. Alexander v. Choate, 469 U.S. 287 (1985) (certified class of Medicaid recipients

22 alleged that Tennessee’s reduction in the number of inpatient hospital days that state Medicaid

23 would pay hospitals on behalf of a Medicaid recipient violated Section 504); Armstrong, 275

24 F.3d at 854 (Ninth Circuit affirmed class of disabled prisoners and parolees who alleged that

25 California’s parole and parole revocation proceedings violated the ADA and Section 504);

26 Kinney v. Yerusalim, 9 F.3d 1067, 1069 (3d Cir. 1993) (certified class of disabled individuals

27 alleged that the City of Pennsylvania’s failure to install curb ramps on streets that had been

28 resurfaced violated the ADA); Yaris v. Special School District of St. Louis County, 780 F.2d 724

SF/21700260.1/0999995-2960011906

5

Case No. 2:06-CV-02042-LKK-GGH

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION

Case 2:06-cv-02042-LKK-GGH Document 34 Filed 01/23/2007 Page 13 of 22

1 (8th Cir. 1986) (certified class of handicapped children alleged that the State of Missouri’s policy

2 of refusing to provide more than nine months of education per year for handicapped children

3 denied children a “free appropriate education” in violation of Section 504); New Mexico Assn. of

4 Retarded Citizens v. State of New Mexico, 678 F.2d 847, 849 (10th Cir. 1982) (certified class of

5 handicapped children alleged that the State of New Mexico violated Section 504 for failure to

6 provide educational services); Jose P. v. Ambach, 669 F.2d 865, 867-868 (2d Cir. 1982) (Second

7 Circuit affirmed class of handicapped children who alleged that the State of New York violated

8 Section 504 for failure to provide appropriate public education); Arnold v. United States Theatre

9 Circuit, Inc., 158 F.R.D. 439, 443, 447-450 (N.D. Cal. 1994) (certifying class of disabled

10 persons who alleged that owner of movie theater violated the ADA for failure to afford disabled

11 persons full and equal access to its theater accommodations); Clarkson v. Coughlin, 145 F.R.D.

12 339, 346-348 (S.D.N.Y. 1993) (certifying class of hearing-impaired inmates who alleged that the

13 State of New York violated the ADA for failure to have access to qualified sign language

14 interpreters, equipment, and other necessary services).

15

A. Standards for Class Certification

16

For a class to be certified here, Plaintiffs must satisfy all four requirements of

17 Rule 23(a), and one of the three categories of Rule 23(b). Fed. R. Civ. P. 23(b); Amchem

18 Products, Inc. v. Windsor, 521 U.S. 591, 613-614 (1997); Zinser v. Accufix Research Inst., Inc.,

19 253 F.3d 1180, 1186 (9th Cir. 2001); Keele v. Wexler, 149 F.3d 589, 594 (7th Cir. 1998). When

20 evaluating a motion for class certification, the court must accept the allegations made in support

21 of certification as true, and does not examine the merits of the case. Blackie v. Barrack, 524

22 F.2d 891, 901 & n. 17 (9th Cir. 1975) (citing Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177-

23 178 (1974)).

24

B. This Action Satisfies Rule 23(a).

25

Rule 23(a) requires Plaintiffs to demonstrate that four prerequisites are satisfied:

26

1. the class is so numerous that joinder of all members is impracticable

(“numerosity”);

27

2. there are questions of law or fact common to the class (“commonality”);

28

SF/21700260.1/0999995-2960011906

6

Case No. 2:06-CV-02042-LKK-GGH

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION

Case 2:06-cv-02042-LKK-GGH Document 34 Filed 01/23/2007 Page 14 of 22

1

3. the claims or defenses of the representative parties are typical of the

claims or defenses of the class (“typicality”); and

2

4. the representative parties will fairly and adequately protect the interests of

the class (“adequacy”).

3

4 Fed. R. Civ. P. 23(a); Hanlon v. Chrysler Corp., 150 F.3d 1011, 1019 (9th Cir. 1998). In this

5 case, Plaintiffs satisfy each of the four prerequisites set forth in Rule 23(a).

6

1. The Numerosity Requirement Is Satisfied.

7

The numerosity requirement demands only that the joinder of all individual class

8 members be impracticable. Arnold v. United States Theatre Circuit, Inc., 158 F.R.D. 439, 448 9 (N.D. Cal. 1994) (citing Harris v. Palm Springs Alpine Estates, Inc., 329 F.2d 909, 913 (9th Cir.

10 1964)). The exact number of potential class members need not be stated. Arnold, 158 F.R.D. at

11 448. As long as Plaintiffs demonstrate some evidence or reasonable estimate of the number of

12 purported class members, the numerosity requirement is satisfied. Id.

13

Frequently, the size of the proposed class satisfies the numerosity requirement

14 without any additional analysis. See Jimenez v. Domino's Pizza, Inc., 238 F.R.D. 241, 247 (C.D.

15 Cal. 2006) (with a class of 160, the court need not consider any other factors in determining

16 whether the proposed class is sufficiently numerous). Indeed, a class of as few as 40 individuals

17 creates a presumption that joinder is impractical. Id., citing 1 Newberg on Class Actions, § 3:5

18 (4th Ed. 2004); see also Consolidated Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483 (2d

19 Cir. 1995) (“numerosity is presumed at a level of 40 members”), citing 1 Newberg on Class

20 Actions, § 3.05 (2d Ed.). The Ninth Circuit has upheld findings of adequate numerosity for

21 classes of approximately 60 individuals. Harik v. Cal. Teachers Ass'n, 326 F.3d 1042, 1051-52

22 (9th Cir. 2003).

23

Where the number of proposed class members does not, by itself, satisfy the

24 numerosity requirement, the court looks to factors such as “geographical diversity, ability of

25 individual claimants to institute separate suits, and whether injunctive or declaratory relief is

26 sought.” Jimenez v. Domino's Pizza, Inc., 238 F.R.D. at 247, quoting Jordan v. Los Angeles

27 County, 669 F. 2d 1311, 1319 (9th Cir. 1982), vacated on other grounds, 459 U.S. 810 (1982).

28 Additionally, in Jordan, the Ninth Circuit held that difficulty in locating potential class members

SF/21700260.1/0999995-2960011906

7

Case No. 2:06-CV-02042-LKK-GGH

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION

Case 2:06-cv-02042-LKK-GGH Document 34 Filed 01/23/2007 Page 15 of 22

1 and the likelihood of a significant number of future class members both make the joinder of all

2 class members impracticable. Jordan, 669 F.2d at 1319-20; see also Pederson v. Louisiana State

3 Univ., 213 F.3d 858, 868 n. 11 (5th Cir. 2000) (inclusion of future class members weighs in

4 favor of finding joinder impracticable); Clarkson v. Coughlin, 145 F.R.D. 339, 348 (S.D.N.Y.

5 1993) (certifying a sub-class of an estimated seven hearing-impaired inmates because of fluidity

6 of prison population and difficulties with identifying and tracking hearing-impaired inmates).

7

Here, the proposed class is estimated at over 4,000 individuals. FAC ¶ 1. This

8 number includes juvenile parolees who have been or are at imminent risk of being wrongfully

9 and unconstitutionally deprived of their liberty in connection with the revoking, subsequent

10 granting, and extending of their parole. Id. The number of individuals, by itself, satisfies the

11 numerosity requirement of Rule 23(a). See Bafus v. Aspen Realty, Inc., 236 F.R.D. 652, 655 (D.

12 Ida. 2006).

13

In addition, all the other factors weigh in favor of finding numerosity. The Class

14 is spread throughout California, making joinder impracticable. Jimenez, 238 F.R.D. at 247. The

15 individuals are juvenile parolees – young people in, by definition, difficult circumstances. These

16 individuals are unlikely to institute separate suits or find counsel to represent them on an

17 individual basis. Id. Plaintiffs seek injunctive and declaratory relief. Id.; FAC at 35. It is likely

18 that there will be many future class members, as parolees not currently subject to parole

19 proceedings are subjected to such proceedings in the future. As alleged in the FAC,

20 approximately 70 percent of juvenile parolees are arrested within 36 months of release, bringing

21 them into the parole revocation process. FAC ¶ 3. The existence of likely future class members

22 weighs in favor of finding numerosity. Moreover, the fact that the class consists of juvenile

23 parolees who are at large and in the community makes it difficult to identify and track such 24 parolees.2 Joinder of all members is therefore impracticable. See Pederson, 213 F.3d at 868 n.

25

2
26

This is also true for juvenile parolees with disabilities who are in custody. In the

Armstrong case, Judge Wilken recently criticized the Defendants for failing to implement a

27 reliable, comprehensive, and sufficient tracking system for adult parolees with disabilities, in violation of the Revised Permanent Injunction. Kennard Dec., Ex. D. The Defendants admitted

28

(Footnote Continued on Next Page.)

SF/21700260.1/0999995-2960011906

8

Case No. 2:06-CV-02042-LKK-GGH

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION

Case 2:06-cv-02042-LKK-GGH Document 34 Filed 01/23/2007 Page 16 of 22

1 11; Phillips v. Joint Legislative Committee on Performance and Expenditure Review, 637 F. 2d

2 1014 (5th Cir. 1981), cert. denied, sub nom. Mississippi v. Phillips, 456 U.S. 960 (1982);

3 Clarkson v. Coughlin, 145 F.R.D. at 348.

4

Plaintiffs satisfy the numerosity requirement of Rule 23(a)(1) on the size of the

5 proposed class alone, and based upon the additional factors that may be considered.

6

2. Common Issues of Law Or Fact Exist

7

Whether there are common issues of law or fact is construed liberally. Hanlon v.

8 Chrysler Corp., 150 F.3d 1011, 1019 (9th Cir. 1998). If just one issue - whether legal or factual

9 - is common to all class members, the commonality requirement of Rule 23(a)(2) is satisfied. Id.

10 The common issue may involve underlying facts or legal theories common throughout the class,

11 even if the common facts support different legal theories, or common legal theories that rest on

12 different facts. Id. (certifying class of minivan owners who sued vehicle manufacturer alleging

13 defective design of rear liftgate latch, because even though proposed class members “may

14 possess different avenues of redress, their claims stem from the same source: the allegedly

15 defective designed rear liftgate latch . . . .”).

16

In a civil rights suit, the commonality requirement is satisfied where the lawsuit

17 challenges a “system-wide practice or policy that affects all of the putative class members.”

18 Armstrong v. Davis, 275 F.3d. 849, 868 (9th Cir. 2001) (citing LaDuke v. Nelson, 762 F. 2d 19 1318, 1332 (9th Cir. 1985)). “In such circumstance, individual factual differences among the

20 individual litigants or groups of litigants will not preclude a finding of commonality.”

21 Armstrong, 275 F.3d at 868. All putative class members need not share identical claims. Baby

22 Neal ex rel. Kanter v. Casey, 43 F.3d 48, 56 (3d Cir.1994).

23

Here, the common issue raised by Plaintiffs and the proposed Class is whether

24 Defendants’ policies, procedures and practices violate their constitutional and statutory rights in

25 (Footnote Continued from Previous Page.)
26 to this violation. Id., Ex. D at 4:18-19 (“Defendants do not dispute these violations, but rather
27 concede them.”). Thus, the Court can reasonably infer that such a system is not in place for juvenile parolees with disabilities.
28

SF/21700260.1/0999995-2960011906

9

Case No. 2:06-CV-02042-LKK-GGH

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION

Case 2:06-cv-02042-LKK-GGH Document 34 Filed 01/23/2007 Page 17 of 22

1 parole proceedings. This is a challenge to Defendants’ “system-wide practice or policy” of

2 denying juvenile parolees their constitutional and statutory rights in parole proceedings. For

3 example, juvenile parolees are routinely denied prompt notice of the charges against them,

4 prompt preliminary hearings, assistance of counsel, and other constitutional protections in parole

5 proceedings. In addition, juvenile parolees with disabilities are denied the necessary

6 accommodations to enable them to participate meaningfully in parole proceedings. Defendants’

7 system-wide pattern of conduct affects all of the putative class members.

8

Accordingly, Plaintiffs have satisfied the commonality requirement of Rule

9 23(a)(2).

10

3. The Class Representatives’ Claims Are Typical Of The Claims

Of The Class 11

12

The typicality requirement of Rule 23(a)(3) may be satisfied in one of several

13 ways. First, the requirement is satisfied where class representatives have suffered deprivations

14 alleged to have affected the entire class. Mawson v. Wideman, 84 F.R.D. 116, 118 (M.D. Pa.

15 1979); Inmates of Lycoming County Prison v. Strode, 79 F.R.D. 228, 233 (M.D. Pa. 1978).

16 Under this method of satisfying the typicality requirement, it is not necessary for the class

17 representatives’ claims to be identical to those of the members of the class. Armstrong, 275 F.3d

18 at 869. The rule requires only that the class representatives demonstrate that “the unnamed class

19 members have injuries similar to those of the named plaintiffs and that the injuries result from

20 the same, injurious course of conduct.” Id. (citing Hanon v. Dataproducts Corp., 976 F.2d 497,

21 508 (9th Cir. 1992)).

22

Additionally, Rule 23(a)(3) is satisfied where all members of the class would

23 benefit by plaintiffs’ action. See Ellis v. Naval Air Rework Facility Alameda, Cal., 404 F. Supp.

24 391, 396 (N.D. Cal. 1975), rev’d on other grounds, 608 F.2d 1308 (9th Cir. 1979); Eisen v.

25 Carlisle & Jacquelin, 391 F.2d 555, 562 (2d Cir. 1968), aff’d in part, 417 U.S. 156 (1974).

26

Finally, the typicality requirement is satisfied where the claims of the named

27 plaintiffs and other class members “arise from the same events or course of conduct and [are] . . .

28 based on the same legal theory.” Jimenez, 238 F.R.D. at 248; see also Penn v. San Juan

SF/21700260.1/0999995-2960011906

10

Case No. 2:06-CV-02042-LKK-GGH

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION

Case 2:06-cv-02042-LKK-GGH Document 34 Filed 01/23/2007 Page 18 of 22

1 Hospital, Inc., 528 F.2d 1181, 1189 (10th Cir. 1975) (“[T]here may be varying fact situations

2 among individual members of the class[;] this is all right so long as the claims of the plaintiffs

3 and the other class members are based on the same legal or remedial theory.”).

4

In this case, Plaintiffs satisfy the typicality requirement under all of its

5 articulations. The deprivations alleged by Plaintiffs stem from Defendants’ deficient, system-

6 wide policies and procedures concerning juvenile parolees in parole proceedings. Therefore,

7 these deprivations necessarily affect the entire Plaintiff class and are based on the same legal

8 theories. Moreover, if Plaintiffs are successful in enjoining Defendants’ unconstitutional polices

9 and practices, they will necessarily benefit all current and future juvenile parolees in California

10 who undergo the parole revocation process. Finally, Plaintiffs’ claims arise out of the same

11 course of conduct as those of the unnamed class members, namely Defendants’ policies and

12 procedures in parole proceedings. Thus, the proposed Class satisfies the typicality requirement

13 of Rule 23(a)(3).

14

4. The Class Is Adequately Represented

15

Adequacy of representation is established by showing that: (1) Plaintiffs do not

16 have interests antagonistic to those of the proposed class; and (2) Plaintiffs’ counsel are

17 qualified, experienced, and generally able to conduct the proposed litigation. Lerwill v. Inflight

18 Motion Pictures, Inc., 582 F.2d 507, 512 (9th Cir.1978).

19

With respect to the first part of the adequacy requirement, the interest of the

20 named Plaintiffs in bringing CDCR policies and practices into compliance with constitutional

21 and statutory requirements is not antagonistic to the interests of other class members who are

22 being or will be subjected to the same policies and practices. See Noren v. Straw, 578 F. Supp.

23 1, 3 (D. Mont. 1982) (holding that the named plaintiffs, adult male prisoners, fairly represented

24 the interests of females and juveniles for claims of violations of privacy). As discussed above,

25 there is an extremely high recidivism rate for juvenile parolees, resulting in the majority of all

26 juvenile parolees being subject to parole revocation proceedings one or more times. See, supra,

27 Section II.B.1; see also FAC ¶ 3. Plaintiffs, like all juvenile parolees, have an interest in parole

28

SF/21700260.1/0999995-2960011906

11

Case No. 2:06-CV-02042-LKK-GGH

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION

Case 2:06-cv-02042-LKK-GGH Document 34 Filed 01/23/2007 Page 19 of 22

1 proceedings that meet constitutional and statutory requirements. Plaintiffs’ interests, in the

2 context of this litigation, are perfectly aligned with the interests of the Class.

3

With respect to the second part of the adequacy requirement, Plaintiffs’ counsel

4 are fully competent to prosecute this class action. This Court has previously described the Prison

5 Law Office, the Rosen, Bien & Galvan firm (formerly Rosen, Bien & Asaro), and the Bingham

6 McCutchen firm (formerly McCutchen, Doyle, Brown & Enersen LLP) as “experienced class

7 action counsel,” based on its dealings with these firms in other prison litigation. Kennard Dec.,

8 Ex. E at 7:9-13. Moreover, in Gates v. Gomez, No. 87-CV-1636 LKK-JFM (E.D. Cal. 1987), a

9 class action filed in this Court in which prisoners at the California Medical Facility-Main at

10 Vacaville and the Northern Reception Center at Vacaville challenged the conditions of their

11 confinement, these same defendants agreed in their opposition to plaintiffs’ motion for class

12 certification that the Prison Law Office, Bingham McCutchen and Michael Bien of Rosen, Bien

13 & Galvan (then with Brobeck, Phleger & Harrison) were competent to prosecute that case as a 14 class action.3 Thus, this case also satisfies the second aspect of Rule 23(a)(4).

15

16

3

Indeed, the Prison Law Office, a non-profit corporation devoted to protecting the rights

17 of California prisoners, has represented thousands of prisoners in individual actions and has

represented plaintiff class members in a number of cases challenging various corrections-related 18 issues at California Prisons, including Armstrong, Valdivia, Clark v. California, 123 F.3d 1267

(9th Cir. 1997), Perez v. Tilton, No. 05-5241 (N.D. Cal. 2005), Plata v. Davis, No. C-01-1351 19 TEH (N.D. Cal. 2001), Coleman v. Wilson, No. CIVS 90-0520 LKK-JFM (E.D. Cal. 1994),

Madrid v. Gomez, No. C-90-3094 THE (N.D. Cal. 1990), Gates, Marin v. Rushen, No. C-8020 0012 MHP (N.D. Cal. 1980), Paris v. McCarthy, No. 5-84-1699 RAR (E.D. Cal. 1986),

Toussaint v. McCarthy, 597 F. Supp. 1388 (N.D. Cal. 1984), aff’d in part, rev’d in part, 801 F. 21 2d 1388 (9th Cir. 1986), Thompson v. Enomoto, No. 79-1630 SAW (N.D. Cal. 1981), Taylor v.

Rushen, No. 80-0139 SAW (N.D. Cal. 1980), and Farrell v. Harper, No. RG03079344 (Alameda 22 Super. Ct. 2003). Likewise, Bingham McCutchen has also had extensive experience litigating

prisoners’ rights in class action suits, including Armstrong, Valdivia, Gates, Marin v. Rushen, 23 No. C-80-0012 MHP (N.D. Cal. 1980), Coleman, and Stone v. City and County of San

Francisco, No. C-78-2774 WHO (N.D. Cal. 1978). In addition, Rosen, Bien & Galvan has 24 litigated numerous class action and prisoners’ rights lawsuits, such as Armstrong, Valdivia,

Gates, Coleman, and Toussaint. Finally, the Youth Law Center has particular expertise in issues 25 affecting juveniles and has litigated many class actions and juvenile rights lawsuits, such as Nick

O. Terhune, No. CVS 89-0755 (E.D. Cal. 1989), Steven L. v. Kern County, No. CV-F-83-189 26 FDP (E.D. Cal. 1983), Wilber v. Warner, No. 312092 (San Francisco Super. Ct. 2000),

Hollingsworth v. Orange County, No. 51-08-65 (Orange County Super. Ct. 1987), and Shaw v. 27 San Francisco, No. 915763 (San Francisco Super. Ct. 1980).

28

SF/21700260.1/0999995-2960011906

12

Case No. 2:06-CV-02042-LKK-GGH

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION

Case 2:06-cv-02042-LKK-GGH Document 34 Filed 01/23/2007 Page 20 of 22

1

Accordingly, as shown above, this case meets all the requirements for a class

2 action enumerated in subsection (a) of Rule 23.

3

C. This Action Satisfies The Criteria Of Rule 23(b)

4

In order to qualify for a class action, Plaintiffs must demonstrate that, in addition

5 to meeting all the prerequisites in Rule 23(a), the action also falls within one of the categories

6 enumerated in Rule 23(b). Here, Plaintiffs seek certification of the class pursuant to Rule

7 23(b)(2), which provides that:

8

An action may be maintained as a class action if the prerequisites of subdivision

9

(a) are satisfied and, in addition:

10

(2) the party opposing the class has acted or refused to act on grounds

generally applicable to the class, thereby making appropriate final

11

injunctive relief or corresponding declaratory relief with respect to the

class as a whole. 12

13 Fed. R. Civ. P. 23(b)(2).

14

Plaintiffs here satisfy the criteria of Rule 23(b)(2). Rule 23(b)(2) is satisfied

15 where there is a basic pattern of action or inaction on the part of the defendants that causes or has

16 the potential of causing all class members to be subjected to the challenged practices and 17 conditions. 4 Walters v. Reno, 145 F.3d 1032, 1046-1047 (9th Cir. 1998); Inmates of Attica Corr.

18 Facility v. Rockefeller, 453 F.2d 12, 24 (2d Cir. 1971). Here, Defendants’ systematic deprivation

19 of class members’ constitutional and statutory rights in juvenile parole proceedings applies to all

20 juvenile parolees under the control of the CDCR. The various state officials who implement

21 these policies and procedures act on grounds which are generally applicable to each and every

22 member of the class. Moreover, Defendants have failed to rectify the systemic violations of

23

24 4

The Advisory Committee’s Note states:

25 Action or inaction is directed to a class within the meaning of this subdivision even if it

26

has taken effect or is threatened only as to one or a few members of the class, provided it

is based on grounds which have general application to this class.

27 Fed. R. Civ. P. 23 Advisory Committee’s Note.

28

SF/21700260.1/0999995-2960011906

13

Case No. 2:06-CV-02042-LKK-GGH

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION

Case 2:06-cv-02042-LKK-GGH Document 34 Filed 01/23/2007 Page 21 of 22

1 constitutional and statutory rights in the juvenile parole revocation process, even while many of

2 the Defendants have agreed to fix the very same problems in the adult parole revocation process.

3 See Kennard Dec., Ex. A.

4

Class certification is also appropriate here because limited resources make it

5 unlikely that individual juvenile parolees bringing numerous separate actions against Defendants

6 would be in a position to demand system-wide, comprehensive injunctive relief of the type

7 requested here, even though they would benefit from such relief. Relief unlikely to be demanded

8 by individuals would include, for example, the development and implementation of policies and

9 procedures for obtaining knowing, voluntary, and intelligent waivers, and the development and

10 implementation of policies and procedures for providing juvenile parolees with disabilities with

11 reasonable accommodations to ensure their ability to participate meaningfully in the parole

12 revocation process.

13

Moreover, if individual actions were brought, different courts would be called

14 upon to address the constitutionality of similar aspects of Defendants’ policies and procedures

15 concerning juvenile parole revocation. Different injunctions designed to remedy defects in the

16 same polices and procedures creates the possibility of competing and inconsistent remedies.

17

In short, a permanent injunction enjoining Defendants from perpetuating these

18 unlawful and unconstitutional policies and procedures is the most appropriate form of relief in

19 this action. This case is therefore clearly one in which the requirements of Rule 23(b)(2) are 20 satisfied.5

21

22

23

24 5

Class certification in this case is also warranted under 23(b)(1)(A) and Rule 23(b)(1)(B).

25 Rule 23(b)(1)(A) is satisfied because the prosecution of numerous separate, individual actions by members of the class could lead to inconsistent or varying adjudications resulting in

26 incompatible standards of conduct for defendants with respect to juvenile parolees. The criterion of Rule 23(b)(1)(B) is also met, because the prosecution of separate actions by class members

27 would as a practical matter be dispositive of the interests of other class members not party to those adjudications.

28

SF/21700260.1/0999995-2960011906

14

Case No. 2:06-CV-02042-LKK-GGH

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION

Case 2:06-cv-02042-LKK-GGH Document 34 Filed 01/23/2007 Page 22 of 22

1 III. CONCLUSION

2

Plaintiffs seek to redress a system-wide problem of unconstitutional and illegal

3 policies, procedures, and practices that affect every juvenile parolee subject to parole revocation

4 and other parole proceedings in California. Only an injunction requiring Defendants to adhere to

5 constitutional and statutory requirements with respect to all present and future juvenile parolees

6 throughout the parole proceedings will adequately resolve the problems that currently infect this

7 process. The proposed Class and named Plaintiffs satisfy the requirements for class action

8 treatment set forth in Rule 23. This motion for class certification should therefore be granted.

9 DATED: January 23, 2007

Respectfully submitted,

10

BINGHAM McCUTCHEN LLP

11

12

By:

s/ Karen Kennard

13

Karen Kennard

Attorneys for Plaintiffs, individually and on

14

behalf of all other similarly situated juvenile

parolees in California

15

16

17

18

19

20

21

22

23

24

25

26

27

28

SF/21700260.1/0999995-2960011906

15

Case No. 2:06-CV-02042-LKK-GGH

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION

 
 Case 2:06-cv-02042-LKK-GGH Document 45-1 Filed 02/06/2007 Page 1 of 15

1 EDMUND G. BROWN JR. Attorney General of the State of California
2 DAVID S. CHANEY Senior Assistant Attorney General
3 FRANCES T. GRUNDER Senior Assistant Attorney General
4 ROCHELLE C. EAST Supervising Deputy Attorney General
5 JAMES M. SOBOLEWSKI, State Bar No. 99559 Deputy Attorney General
6 1300 I Street, Suite 125 P.O. Box 944255
7 Sacramento, CA 94244-2550 Telephone: (916) 327-6758
8 Fax: (916) 324-5205 Email: James.Sobolewski@doj.ca.gov
9 Attorneys for Defendants
10 Schwarzenegger, Tilton, Prunty, Warner, Monday, Dulay, Davis, Arredondo, Chabot, Compton,
11 Melanson, Supple, California Department of Corrections and Rehabilitation, Division of Juvenile
12 Justice, and Board of Parole Hearings SA2006303236
13

14

IN THE UNITED STATES DISTRICT COURT

15

FOR THE EASTERN DISTRICT OF CALIFORNIA

16

SACRAMENTO DIVISION

17

18 L.H., et al.,

2:06-cv-02042 LKK GGH

19

20

21

v.

Plaintiffs,

DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION

22

Date:

Time:

23 ARNOLD SCHWARZENEGGER, et al.,

Courtroom:

Judge:

24

Defendants.

February 20, 2007 10:00 a.m. 4 (15th Floor) The Honorable Lawrence K. Karlton

25

26 / / /

27 / / /

28 / / /

Defendants’ Memorandum of Points and Authorities in Opposition to Plaintiffs’ Motion for Class Certification
1

Case 2:06-cv-02042-LKK-GGH Document 45-1 Filed 02/06/2007 Page 2 of 15

1

I

2

INTRODUCTION

3

Plaintiffs seek to certify their First Amended Complaint (FAC) as a class action. The

4 Plaintiffs’ motion for class certification is made pursuant to Federal Rules of Civil Procedure

5 23(a) and 23(b)(2). Plaintiffs make this request on behalf of over 4,000 juveniles. (FAC ¶ 1.)

6 Plaintiffs assert constitutional claims on behalf of these juveniles under the Due Process and

7 Equal Protection clauses of the Fourteenth Amendment (FAC ¶ 1), and claims for disability

8 accommodations under the Americans with Disabilities Act (42 U.S.C. §§ 1209 et seq.) (ADA)

9 and the Rehabilitation Act (Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 705(20))

10 (Section 504). (FAC ¶¶ 148-151.) Plaintiffs seek injunctive relief. (FAC Prayer for Relief at

11 35-36.)

12

Plaintiffs allege that the class of plaintiffs is composed of (1) juvenile parolees in

13 California who are in the community under parole supervision or at large; (2) juvenile parolees

14 in custody in California as alleged parole violators, and who are awaiting revocation of their

15 parole; and (3) juvenile parolees in California who are in custody, having been found in violation

16 of parole and returned to custody. (FAC ¶ 105.)

17

Plaintiffs’ motion is most easily evaluated by considering their request for class

18 certification relating to (1) constitutional claims under the Fourteenth Amendments, and (2)

19 disability claims under the ADA and Section 504. Defendants oppose Plaintiffs’ motion for

20 certification of classes for both constitutional claims and disability claims.

21

Defendants oppose certification of Plaintiffs’ class regarding both constitutional and

22 disability claims on the grounds that class certification is unnecessary when only injunctive relief

23 is requested and all purported class members will benefit from an injunction issued on behalf of

24 the named Plaintiffs.

25

Defendants separately oppose certification of Plaintiffs’ class regarding disability

26 claims on several grounds. First, Plaintiffs have failed to meet the basic prerequisites of class

27 certification under Federal Rule of Civil Procedure 23(a), namely typicality and numerosity.

28 Plaintiffs L.H. and D.K. do not have standing to assert disability claims and therefore do not

Defendants’ Memorandum of Points and Authorities in Opposition to Plaintiffs’ Motion for Class Certification
2

Case 2:06-cv-02042-LKK-GGH Document 45-1 Filed 02/06/2007 Page 3 of 15

1 meet the typicality requirement for class representatives. Additionally, Plaintiffs have not

2 presented evidence of numerosity to support a class action with respect to disability claims.

3 Finally, certification of a class action for disability claims is inappropriate, because disability

4 claims are unique and require individual evaluation of both the disability and the required

5 accommodation.

6

Defendants oppose class certification since Plaintiff D.K. is not a proper class

7 representative. Plaintiffs seek to certify a class on behalf of “juvenile parolees in California”

8 whether in custody or at large. (FAC ¶ 105.) (Emphasis added.) However, D.K. does not reside

9 in California, and is not monitored for parole compliance by these Defendants. Therefore, one of

10 the four named Plaintiffs fails to meet the most basic criterion for class certification: namely,

11 being a juvenile parolee in California.

12

In light of these facts, the Court should deny Plaintiffs’ motion. In the alternative,

13 Defendants assert that Plaintiffs’ motion is premature, and request that the court defer ruling on

14 this motion until completion of discovery relating to the nature and extent of Plaintiffs’ claims

15 and their ability to represent a class. This is appropriate in light of the substantial factual

16 inconsistency between the facts in Plaintiffs’ files compared to the allegations made in their First

17 Amended Complaint.

18

II

19

STANDARDS FOR CLASS CERTIFICATION

20

A. Prerequisites for Class Certification.

21

Before a class can be certified, plaintiffs must satisfy the four requirements of Rule

22 23(a). Rule 23(a) states four threshold requirements applicable to all class actions:

23

(1) numerosity (a "class [so large] that joinder of all members is

impracticable"); (2) commonality ("questions of law or fact common

24

to the class"); (3) typicality (named parties' claims or defenses "are

typical . . . of the class"); and (4) adequacy of representation

25

(representatives "will fairly and adequately protect the interests of the class").

26 Amchem Products, Inc. v. Windsor, 521 U.S. 591, 613 (1997).

27 / / /

28 / / /

Defendants’ Memorandum of Points and Authorities in Opposition to Plaintiffs’ Motion for Class Certification
3

Case 2:06-cv-02042-LKK-GGH Document 45-1 Filed 02/06/2007 Page 4 of 15

1

The burden of demonstrating that the elements of Rule 23(a) are satisfied is on the

2 party seeking class certification. Doninger v. Pacific Northwest Bell, Inc., 564 F.2d 1304, 1308

3 (9th Cir. 1977); Nguyen Da Yen v. Kissinger, 70 F.R.D. 656, 661 (N.D. Cal. 1976).

4

“[T]here must not only be allegations relative to the matters mentioned in Rule 23 . . .

5 but, in addition, there must be a statement of basic facts. Mere repetition of the language of the

6 rule is inadequate.” Doninger v. Pacific Northwest Bell, Inc., 564 F.2d at 1309 quoting

7 Gillibeau v. Richmond, 417 F.2d 426, 432 (9th Cir. 1969). Failure to meet any one of the

8 requirements of Rule 23(a) destroys the class action. Rutledge v. Electric Hose & Rubber Co.,

9 511 F.2d 668, 673 (9th Cir. 1975); Nguyen Da Yen, 70 F.R.D. at 661. Upon the failure of the

10 class representative to meet any one of the four prerequisites of Rule 23(a), class certification

11 will be denied. Milonas v. Williams, 691 F.2d 931, 938 (10th Cir. 1982).

12

In determining whether a matter should proceed as a class action, the court is required

13 to make findings concerning each essential element of the class action rule. Nguyen Da Yen,

14 70 F.R.D. at 661. "A class may only be certified if we are satisfied, after a rigorous analysis, that

15 the prerequisites of Rule 23(a) have been satisfied." Hanon v. Dataproducts Corp., 976 F.2d

16 497, 509 (9th Cir. 1992) citing General Telephone Company of Southwest v. Falcon, 457 U.S.

17 147, 161 (1982). Actual, not presumed, conformance with Rule 23(a) remains indispensable.

18 General Telephone Company of Southwest v. Falcon, 457 U.S. at 160. The lenient application

19 of Rule 23 to certain civil rights class actions is an illusion. Nguyen Da Yen, 70 F.R.D. at 670.

20

The court is “at liberty to consider evidence which goes to the requirements of Rule 23

21 even though the evidence may also relate to the underlying merits of the case” in ruling on a

22 motion for class certification. Hanon v. Dataproducts Corporation, 976 F.2d at 509 citing In re

23 Unioil Sec. Litig., 107 F.R.D. 615, 618 (C.D. Cal.1985). In making a certification decision, a

24 judge must look somewhere “between the pleading and the fruits of discovery . . . . [E]nough

25 must be laid bare to let the judge survey the factual scene on a kind of sketchy relief map,

26 leaving for later view the myriad of details that cover the terrain.” Sirota v. Solitron Devices,

27 Inc., 673 F.2d 566, 571-72 (2nd Cir. 1982) quoting Professional Adjusting Systems of America,

28 Inc. v. General Adjustment Bureau, Inc., 64 F.R.D. at 38.

Defendants’ Memorandum of Points and Authorities in Opposition to Plaintiffs’ Motion for Class Certification
4

Case 2:06-cv-02042-LKK-GGH Document 45-1 Filed 02/06/2007 Page 5 of 15

1

Sometimes the issues are plain enough from the pleadings to determine

whether the interests of the absent parties are fairly encompassed within the

2

named plaintiff's claim, and sometimes it may be necessary for the court to

probe behind the pleadings before coming to rest on the certification

3

question.

4 General Telephone Company of Southwest v. Falcon, 457 U.S. at 160.

5

In addition to satisfying Rule 23(a)'s prerequisites, parties seeking class certification

6 must show that the action is maintainable under Rule 23(b)(1), (2), or (3). Amchem, 521 U.S. at

7 614. Plaintiffs have sought certification here under Rule 23(b)(2). Rule 23(b) permits class

8 actions for declaratory or injunctive relief where "the party opposing the class has acted or

9 refused to act on grounds generally applicable to the class.” Id.

10

B. Typicality Requirement Under Rule 23(a)(3).

11

The Supreme Court has repeatedly held that "a class representative must be part of the

12 class and 'possess the same interest and suffer the same injury' as the class members." General

13 Tel. Co., 457 U.S. at 156. An individual litigant seeking to maintain a class action must meet the

14 prerequisites of numerosity, commonality, typicality, and adequacy of representation specified in

15 Rule 23(a). Id. These requirements “limit the class claim to those fairly encompassed by the

16 named plaintiff’s claims.” Id. Upon the failure of the class representative to meet any of the

17 prerequisites of Rule 23(a), class certification will be denied. Milonas v. Williams, 691 F.2d at

18 938.

19

The purpose of the typicality requirement is to ensure that the interests of the named

20 representative align with the interests of the class. Hanon v. Dataproducts Corp., 976 F.2d at

21 508 citing Weinberger v. Thornton, 114 F.R.D. 599, 603 (S.D. Cal.1986). Typicality refers to

22 the nature of the claim of the class representative, and not to the specific facts from which it

23 arose or the relief sought. Id. The test of typicality “is whether other members have the same or

24 similar injury, whether the action is based on conduct which is not unique to the named

25 plaintiffs, and whether other class members have been injured by the same course of conduct.”

26 Hanon, 976 F.2d at 508 citing Schwartz v. Harp, 108 F.R.D. 279, 282 (C.D. Cal.1985).

27 / / /

28 / / /

Defendants’ Memorandum of Points and Authorities in Opposition to Plaintiffs’ Motion for Class Certification
5

Case 2:06-cv-02042-LKK-GGH Document 45-1 Filed 02/06/2007 Page 6 of 15

1

C. The Necessity of a Class Action May Be Considered by the Court in Ruling

on Class Certification.

2

3

Courts have recognized that class certification is unnecessary if all the class members

4 will benefit from an injunction issued on behalf of the named plaintiffs. The “necessity

5 requirement” is a practice followed by several circuits of denying class certification under Rule

6 23(b)(2) when a class is not needed to obtain the same relief. Dionne v. Bouley, 757 F.2d 1344,

7 1355 (1st Cir. 1985). In Galvan v. Levine, 490 F.2d 1255 (2d Cir. 1973), one of the lead cases in

8 this area, the court stated:

9

Insofar as the relief sought is prohibitory, an action seeking declaratory or

injunctive relief against state officials on the ground of unconstitutionality

10

of a statute or administrative practice is the archetype of one where class

action designation is largely a formality, at least for the plaintiffs.

11

12 Galvan v. Levine, 490 F.2d at 1261, cited in Dionne v. Bouley, 757 F.2d at 1355. See also Gray

13 v. International Broth. Of Elec. Workers, 73 F.R.D. 638, 640 (D.C.D.C. 1977) (where “the relief

14 being sought can be fashioned in such a way that it will have the same purpose and effect as a

15 class action,” the certification of a class action is unnecessary and inappropriate); Kansas Health

16 Care Ass’n v. Kansas Dep’t of Soc. and Rehabilitation Servs., 31 F.3d 1536, 1548 (10th Cir.

17 1994) (class certification unnecessary where all members benefit from an injunction issued on

18 behalf of the named plaintiffs).

19

One factor that a court may properly take into account is the fact that the same relief

20 can, for all practical purposes, be obtained through an individual injunction without the

21 complications of a class action. Dionne, 757 F.2d at 1356. “The language of Rule 23(b)(2) is

22 reasonably clear: whether the action should be maintained as a class action depends on the

23 appropriateness of injunctive or corresponding relief with respect to the class as a whole. Thus,

24 when the same relief can be obtained without certifying a class, a court may be justified in

25 concluding that class relief is not ‘appropriate.’” Id., quoting 3 B.J. Moore & J. Kennedy,

26 Moore’s Federal Practice, ¶ 23.40[3] at 23-297 n.13 (2d ed. 1982).

27

Both California district courts and appellate court have followed this approach. In

28 James v. Ball, 613 F.2d 180 (9th Cir. 1979), the court held that the district court did not abuse its

Defendants’ Memorandum of Points and Authorities in Opposition to Plaintiffs’ Motion for Class Certification
6

Case 2:06-cv-02042-LKK-GGH Document 45-1 Filed 02/06/2007 Page 7 of 15

1 discretion in refusing to certify a suit as a class action where “the relief sought will, as a practical

2 matter, produce the same result as formal class-wide relief.” James v. Ball, 613 F.2d at 186,

3 rev’d on other grounds 451 U.S. 355 (1981). See also, Karine Sokol v. New United Motor Mfg.,

4 Inc., 1999 WL 1136683 (N.D. Cal. 1999); Officers for Justice v. Civil Service Com’n of the City

5 and County of San Francisco, 371 F. Supp. 1328 (D.C. Cal. 1973).

6

III

7

ARGUMENT

8

A. The Court’s Decision Is Properly Based Solely on the Facts of this Case.

9

In support of their motion, Plaintiffs include the Declaration of Karen Kennard with

10 attached Exhibits A through E. These exhibits are the Stipulated Order for Permanent Injunctive

11 Relief in Valdivia v. Schwarzenegger (Valdivia); the Revised Permanent Injunction in Armstrong

12 v. Davis (Armstrong); the court order on plaintiffs’ motion for class certification in Valdivia; the

13 Order Granting Motion to Enforce Revised Permanent Injunction in Amrstrong; and the court

14 order on cross-motions for summary judgment in Valdivia, respectively. In submitting these

15 exhibits to the court, Plaintiffs are raising a “me, too” argument and suggesting that certification

16 of these other actions automatically warrants certification of this action. However, there is no

17 support in the law for this argument.

18

A class may only be certified if the court is satisfied, after a rigorous analysis, that the

19 prerequisites of Rule 23(a) have been satisfied. Hanon v. Dataproducts Corp., 976 F.2d at 509.

20 The factors are numerosity, commonality, typicality, and adequacy of representation. The Court

21 must therefore determine whether Plaintiffs have met their burden on these prerequisites, as well

22 as determine the necessity for class certification when injunctive relief is requested under Rule

23 23(b)(2). In making its decision, the Court must look somewhere between the pleadings and the

24 fruits of discovery. Sirota v. Solitron Devices, Inc., 673 F.2d at 571.

25

The rulings of the district courts in other actions have no bearing on whether on not

26 these Plaintiffs have satisfied the prerequisites of Rule 23(a), or whether the relief requested can

27 be obtained without the complications of a class action. Those issues can only be addressed by

28 analyzing the pleading and facts in this matter.

Defendants’ Memorandum of Points and Authorities in Opposition to Plaintiffs’ Motion for Class Certification
7

Case 2:06-cv-02042-LKK-GGH Document 45-1 Filed 02/06/2007 Page 8 of 15

1

Additionally, the two matters cited, Valdivia and Armstrong, relate to adult parole

2 issues, while the present action relates solely to juvenile parole. At this time, juvenile parole

3 revocation procedures and hearings are under separate and distinct divisions of the California

4 Department of Corrections and Rehabilitation, namely the Department of Juvenile Justice (DJJ).

5 (Dec. of John Monday ¶ 7, attached as Ex. A.) DJJ is not a party to either the Valdivia or the

6 Armstrong matters.

7

Finally, the policies behind adult corrections and juvenile detention are different. The

8 stated purpose of adult corrections and imprisonment is punishment (California Penal Code

9 § 1170(a)(1) (2007)), while the purpose of juvenile detention is correction and rehabilitation as

10 well as public safety (California Welfare and Institutions Code § 1700 (2007)). Therefore, any

11 comparison to the adult parole cases is misdirected.

12

B. The Court May Decline to Certify the Class Because a Class Action Is Not

13

Necessary to Obtain the Relief Sought.

14

Plaintiffs brought the present action complaining of violations of their constitutional

15 rights under the Fourteenth Amendment and their statutory rights under the ADA and Section

16 504. (FAC ¶¶ 1, 148-151.) Plaintiffs complain that Defendants are “systematically violating

17 the[ir] constitutional and statutory rights” (Plaintiffs’ Supporting Mem. of P. & A. 1:4-5), and

18 have requested prospective injunctive relief (FAC Prayer for Relief at 35-36). Accordingly,

19 Plaintiffs are requesting system-wide injunctive relief for their constitutional and disability

20 claims.

21

Where injunctive relief is requested against state officials to correct an alleged system-

22 wide constitutional or statutory practice or policy, a class action designation is unnecessary.

23 Under such circumstances, a judgment for one named plaintiff will run to the benefit of all

24 similarly situated plaintiffs. Galvan v. Levine, 490 F.2d at 1261. Class certification is therefore

25 not necessary since the requested relief can, for all practical purposes, be obtained through an

26 individual injunction without the complications of a class action. Dionne v. Bouley, 757 F.2d at

27 1356. Where the predominant part of plaintiffs’ prayer seeks declaratory and injunctive relief,

28 / / /

Defendants’ Memorandum of Points and Authorities in Opposition to Plaintiffs’ Motion for Class Certification
8

Case 2:06-cv-02042-LKK-GGH Document 45-1 Filed 02/06/2007 Page 9 of 15

1 “[n]o useful purpose would be served by permitting this case to proceed as a class action.” Gray

2 v. Int’l Broth. of Elec. Workers, 73 F.R.D. at 641.

3

Plaintiffs have requested prospective injunctive relief against state officials and state

4 departments. The requested relief relates to alleged system-wide constitutional and disability

5 practices and procedures. Accordingly, an injunction issued on behalf of the named Plaintiffs

6 would have a system-wide effect, and would benefit all of the proposed class members.

7 Therefore, class certification is unnecessary in this case. Further, certifying a class of juveniles

8 who are or may be subject to the juvenile parole revocation process will result in unnecessary

9 complication and complexities. Defendants therefore request that the court use its discretion

10 under Rule 23(b)(2) and deny Plaintiffs’ motion for class certification.

11

C. The Named Plaintiffs Are Not Proper Class Representatives for Claims

12

under the ADA or Section 502.

13

Plaintiffs’ disability claim is brought under the ADA and Section 504 of the

14 Rehabilitation Act. Only a person with a “disability” as defined in the ADA may state a claim

15 under the act. Davoll v. Webb, 160 F.R.D.142, 145 (D. Colo. 1995). To qualify for relief under

16 the Rehabilitation Act, a plaintiff must prove he is an “individual with handicaps” (now

17 “individual with a disability.”) Chandler v. City of Dallas, 2 F.3d 1385, 1390, 1391 n.18 (5th

18 Cir. 1995). Case law developed under the Rehabilitation Act may be generally applicable to the

19 term “disability” as used in the ADA. Davoll v. Webb, 160 F.R.D. at 144-5.

20

In order to act as a class representative for a claim under the ADA and Section 504 of

21 the Rehabilitation Act, one or more of the named plaintiffs must be a qualified individual with a

22 disability. This insures that the nature of the claim by the named plaintiff is the same or similar

23 to the claim by the class members. This showing is necessary to meet the typicality requirement

24 under Rule 23(a). The failure of the class representative to meet the typicality (or any other)

25 prerequisites of Rule 23(a) requires that class certification be denied. Milonas v. Williams, 691

26 F.2d at 938.

27

Here, Plaintiffs’ claims regarding disability accommodation under the ADA and

28 Section 504 are brought by L.H. and D.K. only. L.H alleges that he suffered unspecified

Defendants’ Memorandum of Points and Authorities in Opposition to Plaintiffs’ Motion for Class Certification
9

Case 2:06-cv-02042-LKK-GGH Document 45-1 Filed 02/06/2007 Page 10 of 15

1 “developmental delays” and “has been a special education student since childhood and requires

2 assistance with reading.” (FAC ¶ 74.) He denies receiving a high school diploma or a G.E.D.,

3 and alleges that the Court of Appeal “found him to be an individual with exceptional needs.” Id.

4 These exceptional needs are undefined. Finally, L.H. alleges that he is an individual with a

5 disability as that term is defined in Section 504 and the ADA, but fails to state what the actual

6 disability is or what effect, if any, it has with respect to the parole revocation process. Id.

7 Presumably, L.H.’s disability relates to his education abilities.

8

D.K. alleges a history of drug and alcohol abuse, and states that he does not have a

9 high school diploma nor a G.E.D. (FAC ¶ 74.) He also alleges that his file contains “diagnoses

10 of mental disorders.” Id. D.K. alleges that he is an individual with a disability as that term is

11 defined in Section 504 and the ADA, but again fails to state what the actual disability is or what

12 the effect, if any, it has with respect to the parole revocation process. Id. Presumably the

13 disability of D.K. relates to this “mental disorders.”

14

The central files for both of these named Plaintiffs have been obtained and reviewed.

15 The information contained in these files do not support their allegation of disability. Relevant

16 documents of L.H. are attached as Exhibit B. These records do confirm early educational

17 problems. However, these problems appear to be due to habitual truancy rather than any

18 developmental disability. (Ex. B-1.) As of October 19, 2001, L.H. was in tenth grade and

19 believed that he was current on his high school credits for a tenth grader. (Ex. B-2) At that time,

20 L.H. had reading skills and abilities at the advanced basic skills level. (Ex. B-2.) People who

21 read at this skill level can handle most routine reading, writing and computation tasks related to

22 their life roles. Id. L.H. was planning to complete high school and hoped to enroll in college.

23 (Ex. B-2, B-3.) No mental health services were required by L.H. as documented in the report of

24 February 26, 2003. (Ex. B-4.) Additionally, his file is devoid of any record of a developmental

25 disability. (Dec. of James M. Sobolewski.)

26

Reports relating to D.K. are attached as Exhibit C. D.K.’s annual review dated

27 February 17, 2005, documents that he completed all proficiency tests in math, reading and

28 writing in order to take his G.E.D. (Ex. C-1.) The Progress Case Conference dated March 29,

Defendants’ Memorandum of Points and Authorities in Opposition to Plaintiffs’ Motion for Class Certification
10

Case 2:06-cv-02042-LKK-GGH Document 45-1 Filed 02/06/2007 Page 11 of 15

1 2005, as well as the prior annual review indicate that D.K was attending career academy and

2 getting ready to take his G.E.D. test to make himself more marketable. (Ex. C-2, C-4.) The

3 Progress Case Conference also addressed his mental health diagnoses. D.K. did not have a

4 significant history of mental illness, was not suffering from mental illness, and did not

5 demonstrate any serious or major impairment of functioning. (Ex. C-3.) There was no evidence

6 as of February 17, 2005 that D.K. suffered from previously diagnosed mental problems. (Ex. C-

7 1, C-2.) Therefore, there is no support for the allegation that D.K is a qualified individual with a

8 disability, and no basis for his disability claim under the ADA and Section 504.

9

There is no evidence that either L.H. or D.K. are qualified individuals with a disability

10 who have standing to bring a claim under the ADA and Section 504. Accordingly, neither of

11 these Plaintiffs meet the typicality requirement under Rule 23(a)(3) to act as class representatives

12 for disability claims. Since Plaintiffs have no class representatives for disability claims, the

13 Court should deny their motion for class certification with respect to these claims.

14

D. Plaintiffs Have Not Established the Numerosity Prerequisite for Their

15

Disability Claims under the ADA or Section 502.

16

The first requirement for maintaining a class action under Rule 23(a) is that “the class

17 is so numerous that joinder of all members is impracticable.” Fed. R. Civ. P. 23(a)(1). In order

18 for the court to be able to determine whether the class is so numerous that joinder is

19 impracticable, plaintiffs must show some evidence of, or reasonable estimate of, the number of

20 class members. Nguyen Da Yen, 70 F.R.D. at 661. Mere speculation as to satisfaction of this

21 requirement does not satisfy Rule 23(a)(a). Id.

22

Plaintiffs have failed to established the numerosity requirement relating to their

23 disability claims under the ADA and Section 504. While Plaintiffs allege that their class is “over

24 4000 juveniles” at imminent risk for violation of their constitutional rights under the Fourteenth

25 Amendment (FAC ¶ 1), there is no such allegation regarding the number of juveniles who are in

26 danger of having their rights under the ADA and Section 504 violated.

27

In order to maintain a disability claim under the ADA and Section 504, Plaintiffs must

28 be qualified individuals with a disability, as defined by the acts. As noted above, Plaintiffs L.H.

Defendants’ Memorandum of Points and Authorities in Opposition to Plaintiffs’ Motion for Class Certification
11

Case 2:06-cv-02042-LKK-GGH Document 45-1 Filed 02/06/2007 Page 12 of 15

1 and D.K. fail to meet those criteria. Further, it is unclear how many members of the proposed

2 class meet this definition. Plaintiffs’ only allegation is that the “plaintiff class includes

3 numerous ‘individuals with disabilities’ as that term is defined in Section 504 . . . and the ADA.”

4 (FAC ¶¶ 105, 145.)

5

Plaintiffs have a duty to present evidence of–or at least a reasonable estimate of–the

6 number of class members. This requirement is necessary for the Court to determine whether the

7 class is so numerous that joinder of all members would be impracticable. However, Plaintiffs

8 have presented no such evidence or factual representation of the number of qualified

9 “individuals with a disability.” The Court is therefore left to speculate as to this number. Since

10 Plaintiffs have failed to satisfy the numerosity prerequisite of Rule 23(a), the Court should deny

11 their motion for class certification with respect to disability claims under the ADA and Section

12 504.

13

Defendants also note that courts are cautious to certify disability discrimination claims

14 as class actions, due to the individualized determinations required by these claims. In Mantolete

15 v. Bolger, 767 F.2d 1416 (9th Cir. 1985), the Ninth Circuit affirmed the district court’s dismissal

16 of the class allegations. In Mantolete, plaintiffs sought to certify a nation-wide class of

17 epileptics who were denied employment with the United States Postal Service because of their

18 disability. The court observed that determining the propriety of relief in such cases underscores

19 the importance of a case-by-case adjudication. Whether a particular individual is a qualified

20 individual with a disability will necessitate an inquiry into the individual’s medical and work

21 history as well as other factors bearing on the person’s fitness for a given position. Mantolete v.

22 Bolger at 1425. Similarly, in Chandler v. City of Dallas, 2 F.3d 1385 (5th Cir. 1993), plaintiffs

23 sought to certify a class of persons excluded from a City of Dallas job due to physical standards

24 adopted by the city to hold that job. Neither of the plaintiffs met these standards. On appeal, the

25 court found that class certification was inappropriate since “the determinations of whether an

26 individual is handicapped or ‘otherwise qualified’ are necessarily individualized inquiries.”

27 Chandler v. City of Dallas at 1396. Because of the uncertainty of the number of qualified

28 individuals with disabilities, the case-by-case review of records and files necessary to determine

Defendants’ Memorandum of Points and Authorities in Opposition to Plaintiffs’ Motion for Class Certification
12

Case 2:06-cv-02042-LKK-GGH Document 45-1 Filed 02/06/2007 Page 13 of 15

1 if a plaintiff is a qualified individual with disability, and the individualized nature of the relief

2 that may be required, certification of the Plaintiffs’ disability claims in the present case should

3 also be denied.

4

E. Plaintiff D.K. Is Not a Proper Class Representative Since He Does Not Reside

5

in California.

6

The final requirement of Rule 23(a) is that “the representative parties will fairly and

7 adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). The class of Plaintiffs in

8 this action is “juvenile parolees in California.” (FAC ¶ 105.) An identity of interest between the

9 class representative and the class insures adequacy of representation. Nguyen Da Yen,

10 70 F.R.D. at 665.

11

Plaintiffs have included D.K. as a named Plaintiff. In this position, D.K. purports to be

12 a class representative of “juvenile parolees in California.” (FAC ¶ 105.) However, D.K. does

13 not reside in California, and therefore fails to meet the adequacy of representation requirement

14 under Rule 23(a)(4) necessary to represent this class.

15

The central file of D.K. indicates that he was permitted to move to Kansas to reside

16 with his father. (Dec. of Al Hunter ¶ 5.) This move was permitted under the Interstate Compact

17 Agreement. Id. D.K. moved to Kansas in June 2006. Id. Therefore, D.K. is not a “juvenile

18 parolee in California,” but rather a juvenile parolee in Kansas. As a resident of Kansas, D.K.

19 does not have a commonality of interest with the proposed class of juveniles in California to

20 adequately represent their interests.

21

Under the interstate agreement, responsibility for supervising D.K.’s compliance with

22 the terms of his parole shifted to the juvenile parole authorities of the State of Kansas. Id. This

23 shift in responsibility occurred in 2006. Id. Therefore, D.K. is now the immediate responsibility

24 of the juvenile parole system of Kansas and not of California. Because of his move, D.K. is

25 neither a juvenile parolee in California, nor a parolee under the immediate supervision of the

26 Defendants. He does not fall into the class that he purports to represent. Accordingly, D.K. is

27 not a proper class representative for “juvenile parolees in California” claiming relief for either

28 alleged constitutional or disability violations.

Defendants’ Memorandum of Points and Authorities in Opposition to Plaintiffs’ Motion for Class Certification
13

Case 2:06-cv-02042-LKK-GGH Document 45-1 Filed 02/06/2007 Page 14 of 15

1

IV

2

CONCLUSION

3

Plaintiffs request class certification for constitutional claims under the Fourteenth

4 Amendment and disability claims under the ADA and Section 504. Prospective injunctive relief

5 is requested for both claims. Since any injunctive relief obtained by the named Plaintiffs will

6 run to the benefit of all potential Plaintiffs, certification of a class with its attendant

7 complications and difficulties is unnecessary.

8

Plaintiffs have also failed to meet the prerequisites for class certification for their

9 disability claims under the requirements of Federal Rule of Civil Procedure 23(a). The files of

10 L.H. and D.K., the two named Plaintiffs asserting a disability claim, indicate that neither of these

11 Plaintiffs are qualified individuals with disabilities, and therefore do not have standing to assert

12 disability claims. Additionally, D.K. is not a “juvenile parolee in California.” Therefore, neither

13 of these Plaintiffs meet the typicality prerequisite necessary to maintain a class action for

14 disability claims.

15

Finally, Plaintiffs have failed to provide evidence of, or a reasonable estimate of, the

16 number of class members as required by the numerosity prerequisite. The Court is therefore

17 forced to speculate whether the class is so numerous that joinder of all members would be

18 impracticable. Further, Plaintiffs’ disability claims are not appropriate for class certification due

19 to the individualized determination of these claims. The necessity for a case-by-case review of

20 records and files to determine if a Plaintiff is a qualified individual with a disability and the

21 individualized nature of the relief that may be required argue against class certification.

22 / / /

23 / / /

24 / / /

25

26

27

28

Defendants’ Memorandum of Points and Authorities in Opposition to Plaintiffs’ Motion for Class Certification
14

Case 2:06-cv-02042-LKK-GGH Document 45-1 Filed 02/06/2007 Page 15 of 15

1

Defendants respectfully request that the Court deny Plaintiffs’ motion for class

2 certification.

3 Dated: February 6, 2007

4

Respectfully submitted,

5

EDMUND G. BROWN JR.

Attorney General of the State of California

6

DAVID S. CHANEY

Senior Assistant Attorney General 7
FRANCES T. GRUNDER

8

Senior Assistant Attorney General

ROCHELLE C. EAST

9

Supervising Deputy Attorney General

10

11 /s/ James M. Sobolewski

12 JAMES M. SOBOLEWSKI

13

Deputy Attorney General

Attorneys for Defendants

14

15
30214716.wpd
16 SA2006303236

17

18

19

20

21

22

23

24

25

26

27

28

Defendants’ Memorandum of Points and Authorities in Opposition to Plaintiffs’ Motion for Class Certification
15

 
 1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10

11 L.H., A.Z., D.K., and D.R., on behalf of themselves and
12 all other similarly situated juvenile parolees
13 in California,

14

Plaintiffs,

NO. CIV. S-06-2042 LKK/GGH

15

v.

O R D E R

16 ARNOLD SCHWARZENEGGER, Governor, State of
17 California, et al,

18

Defendants.

/

19

20

This is a class action brought by a class of juvenile parolees

21 in California who claim that defendants’ policies and practice deny

22 them their constitutional rights to due process, equal protection,

23 and assistance of counsel. They also allege violation of their

24 statutory rights under the Americans with Disabilities Act, 42

25 U.S.C. §§ 12101-12213, and section 504 of the Rehabilitation Act,

26 29 U.S.C. § 794. Defendants include the Governor of the State of

1

1 California and various persons and entities administering

2 California’s juvenile parole system.

3

Plaintiffs move for partial summary judgment on two

4 alternative grounds. First, plaintiffs seek that the Court find,

5 as a matter of law, that defendants violate plaintiffs’ due process

6 rights by failing to conduct two hearings prior to revocation of

7 parole. Alternatively, plaintiffs move for partial summary

8 judgment on the grounds that, if a single hearing is sufficient to

9 revoke plaintiffs’ parole, defendants violate plaintiffs’ due

10 process rights by failing to hold such a hearing promptly.

11 Plaintiffs

12 seek an injunction requiring that defendants hold probable cause

13 hearings for all juvenile parolees within ten calendar days of the

14 parolee being taken into custody for revocation proceedings. The

15 court grants the plaintiffs’ motion on the issue of whether the

16 defendants violate the plaintiffs’ due process rights, but the

17 court denies the motion as to injunctive relief.

18

I. BACKGROUND AND FACTS1

19

Currently, there are approximately 2,775 juveniles on parole

20 in California. Decl. of Maria Morris (“Morris Decl.”) Ex. L, ¶ 4.

21 The certified plaintiff class consists of juvenile parolees in or

22 under the jurisdiction of California, including all juvenile

23 parolees with disabilities as defined in section 504 of the

24 Rehabilitation Act and the Americans with Disabilities Act, who are

25

26

1 All facts are undisputed unless otherwise noted.

2

1 (1) in the community under parole supervision or are at large, or

2 (2) in custody in California as alleged parole violators and who

3 are awaiting revocation of their parole, or (3) in custody after

4 having been found in violation of their parole and returned to

5 custody. Order Granting Class Certification, Feb. 28, 2007.

6

A juvenile parolee may have his parole revoked based on the

7 determination that he has committed a new crime or that he has

8 failed to abide by the other terms and conditions of parole. Cal.

9 Code Regs. tit. 15, § 4982. Prior to revocation, the parolee can

10 be arrested and detained pending the Juvenile Parole Board’s

11 determination that there is probable cause to believe that the

12 parolee has violated the conditions of parole, or “when a violation

13 of parole has been established.” Cal. Code Regs. tit. 15, §

14 4978(b)(1).

15 A. Current Process for Parole Revocation When the Parolee Is Not

16

Accused of a New Crime

17

A parolee may have his parole revoked based upon his having

18 violated the terms of his parole, even when the parolee has not

19 been accused of a new crime. California regulations refer to this

20 as a “technical violation” of parole. Cal. Code Regs. tit. 15, §

21 4982(a)(2). The defendants’ regulations do not provide for a

22 hearing to determine whether there is probable cause to believe

23 that the conduct comprising the technical violation did in fact

24 occur. SUF ¶ 10; Defendants’ Response to Plaintiff’s Request for

25 Admissions 14:16-15:16, Exh. C, Decl. of Sarah Laubach (“Laubach

26 Decl.”) (admission of defendant Division of Juvenile Justice).

3

1

Once a parolee has been taken into custody for a technical

2 violation, California regulations require that a hearing occur

3 within sixty days to determine whether the parolee has violated a

4 condition of his or her parole. Cal. Code Regs. tit. 15, §

5 4978(c)(1); SUF ¶ 13. This 60-day period can be extended upon

6 written justification. Cal. Code Regs. tit. 15, § 4978(c)(2); SUF

7 ¶ 15; cf. Decl. of Gay Grunfeld (“Grunfeld Decl.”) Exh. A, B, F,

8 G, L.

9

More than half of all juvenile parole revocation proceedings

10 in recent years have been for technical violations. SUF ¶ 6. From

11 2004-2006, approximately 75 percent of parole revocation

12 proceedings for technical violations resulted in the parolee being

13 continued on parole or discharged from parole; in other words,

14 technical violations led to a parolee’s parole being revoked in

15 only one-fourth of the cases. SUF ¶ 9.

16 B. Current Process for Parole Revocation When the Basis of the

17

Revocation is the Parolee’s Having Been Charged With a New

18

Crime

19

When the parolee faces revocation based on new criminal

20 charges, defendants’ regulations provide for a preliminary hearing

21 to determine that there is probable cause to believe that the

22 parolee committed the crime. Cal. Code Regs. tit. 15, § 4981. The

23 juvenile parolee may be detained while this determination is made.

24 SUF ¶ 1. After the parolee is detained, the parolee’s parole agent

25 prepares a detention report, which identifies the reasons for the

26

4

1 detention. Depo. of Marco Reyna2 (“Reyna Depo.”) 31:1-31:5, Exh.

2 E, Laubach Decl. This report is then reviewed by a Supervising

3 Parole Agent. Reyna Depo. 31:8-31:12, Exh. E, Laubach Decl. If the

4 Supervising Parole Agent decides to place a parole-hold on the

5 parolee, within forty-eight hours the parolee is given notice of

6 the allegation against him. Defendant’s Reponse to Plaintiff’s

7 Request for Admissions 4:19-4:20, Exh. C, Laubach Decl. (admissions

8 of defendant Division of Juvenile Justice). The parolee is able to

9 waive his appearance at the probable cause hearing. Reyna Depo.

10 25:2-25:17, Exh. E, Laubach Decl.

11

When the parolee is given notice of the allegation of the law

12 violation, the parolee is also given a “Parolee Probable Cause/

13 Violation Detention Hearing Waiver Feedback” form. Defendant’s

14 Reponse to Plaintiff’s Request for Admissions 16:9-16:11, Exh. C,

15 Laubach Decl. (admissions of defendant Division of Juvenile

16 Justice). This form presents the parolee with two options: that the

17 parolee waives “a probable cause/detention hearing and a timely

18 violation hearing for any law violations,” stating that the parolee

19 understands the waiver is not an admission of guilt.

20 Alternatively, the parolee can request a detention hearing before

21 the Youth Authority Board. Decl. of Maria Morris (“Morris Decl.”)

22 Exh. D. Parolees are not represented by counsel when given this

23 form. Reyna Depo. 70:10-70:12, Exh. E, Laubach Decl. If the waiver

24 form is not returned postmarked within five calendar days, the

25
2 Marco Reyna is one of the persons designated by the 26 defendants as most knowledgeable of juvenile parole hearings.

5

1 parolee is deemed to have automatically waived his right to appear

2 at the probable cause hearing. Morris Decl. Exh. D.

3

If the parolee waives his appearance at the probable cause

4 hearing, a hearing officer from the Juvenile Parole Board

5 determines whether the parolee should be detained pending

6 adjudication of the new crime with which the parolee has been

7 charged. Reyna Depo. 31:16-31:24, Exh. E, Laubach Decl. The hearing

8 officer bases his determination on the report offered in support

9 of the parole-hold. Id. Defendant concedes that in these

10 situations, where the parolee has waived his appearance at the

11 probable cause hearing, “California . . . does not conduct an

12 actual hearing.” Defs.’ Opposition at 10; cf. Reyna Depo. 25:2-

13 25:6, Exh. E, Laubach Decl. (stating that if the parolee signs the

14 waiver, he is “waiving [his] rights to a . . . probable cause

15 detention hearing”).

16

Very rarely does a juvenile parolee invoke his right to appear

17 at the probable cause hearing; as defendants concede, only when the

18 parolee invokes this right does the hearing actually occur. SUF ¶

19 18; Defs.’ Opposition at 10. Neither party has described for the

20 court in detail the process and procedures that exist at these

21 probable cause hearings.

22

After the parolee has been detained for a law violation,

23 California regulations allow sixty days for a probable cause

24 hearing. SUF ¶ 12; Cal. Code Regs. tit. 15, § 4978(c)(1)(B). This

25 period may be extended upon written justification being presented

26 to the hearing officer. SUF ¶ 14; Cal. Code Regs. tit. 15,

6

1 4978(c)(2); cf. Decl. of Gay Grunfeld Exh. H, I.

2

III.

3

STANDARD FOR MOTION FOR SUMMARY JUDGMENT UNDER

4

FEDERAL RULE OF CIVIL PROCEDURE 56

5

Summary judgment is appropriate when it is demonstrated that

6 there exists no genuine issue as to any material fact, and that the

7 moving party is entitled to judgment as a matter of law. Fed. R.

8 Civ. P. 56(c); see also Adickes v. S.H. Kress & Co., 398 U.S. 144,

9 157 (1970); Secor Ltd. v. Cetus Corp., 51 F.3d 848, 853 (9th Cir.

10 1995).

11

Under summary judgment practice, the moving party

[A]lways bears the initial responsibility of informing

12

the district court of the basis for its motion, and

identifying those portions of "the pleadings,

13

depositions, answers to interrogatories, and admissions

on file, together with the affidavits, if any," which it

14

believes demonstrate the absence of a genuine issue of

material fact.

15

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). "[W]here the

16

nonmoving party will bear the burden of proof at trial on a

17

dispositive issue, a summary judgment motion may properly be made

18

in reliance solely on the 'pleadings, depositions, answers to

19

interrogatories, and admissions on file.'" Id. Indeed, summary

20

judgment should be entered, after adequate time for discovery and

21

upon motion, against a party who fails to make a showing sufficient

22

to establish the existence of an element essential to that party's

23

case, and on which that party will bear the burden of proof at

24

trial. See id. at 322. "[A] complete failure of proof concerning

25

an essential element of the nonmoving party's case necessarily

26

7

1 renders all other facts immaterial." Id. In such a circumstance,

2 summary judgment should be granted, "so long as whatever is before

3 the district court demonstrates that the standard for entry of

4 summary judgment, as set forth in Rule 56(c), is satisfied." Id.

5 at 323.

6

If the moving party meets its initial responsibility, the

7 burden then shifts to the opposing party to establish that a

8 genuine issue as to any material fact actually does exist.

9 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

10 586 (1986); see also First Nat'l Bank of Ariz. v. Cities Serv. Co.,

11 391 U.S. 253, 288-89 (1968); Secor Ltd., 51 F.3d at 853.

12

In attempting to establish the existence of this factual

13 dispute, the opposing party may not rely upon the denials of its

14 pleadings, but is required to tender evidence of specific facts in

15 the form of affidavits, and/or admissible discovery material, in

16 support of its contention that the dispute exists. Fed. R. Civ.

17 P. 56(e); Matsushita, 475 U.S. at 586 n.11; see also First Nat'l

18 Bank, 391 U.S. at 289; Rand v. Rowland, 154 F.3d 952, 954 (9th Cir.

19 1998). The opposing party must demonstrate that the fact in

20 contention is material, i.e., a fact that might affect the outcome

21 of the suit under the governing law, Anderson v. Liberty Lobby,

22 Inc., 477 U.S. 242, 248 (1986); Owens v. Local No. 169, Ass’n of

23 Western Pulp and Paper Workers, 971 F.2d 347, 355 (9th Cir. 1992)

24 (quoting T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n,

25 809 F.2d 626, 630 (9th Cir. 1987)), and that the dispute is

26 genuine, i.e., the evidence is such that a reasonable jury could

8

1 return a verdict for the nonmoving party, Anderson, 477 U.S. 248-

2 49; see also Cline v. Indus. Maint. Eng’g & Contracting Co., 200

3 F.3d 1223, 1228 (9th Cir. 1999).

4

In the endeavor to establish the existence of a factual

5 dispute, the opposing party need not establish a material issue of

6 fact conclusively in its favor. It is sufficient that "the claimed

7 factual dispute be shown to require a jury or judge to resolve the

8 parties' differing versions of the truth at trial." First Nat'l

9 Bank, 391 U.S. at 290; see also T.W. Elec. Serv., 809 F.2d at 631.

10 Thus, the "purpose of summary judgment is to 'pierce the pleadings

11 and to assess the proof in order to see whether there is a genuine

12 need for trial.'" Matsushita, 475 U.S. at 587 (quoting Fed. R.

13 Civ. P. 56(e) advisory committee's note on 1963 amendments); see

14 also Int’l Union of Bricklayers & Allied Craftsman Local Union No.

15 20 v. Martin Jaska, Inc., 752 F.2d 1401, 1405 (9th Cir. 1985).

16

In resolving the summary judgment motion, the court examines

17 the pleadings, depositions, answers to interrogatories, and

18 admissions on file, together with the affidavits, if any. Rule

19 56(c); see also In re Citric Acid Litigation, 191 F.3d 1090, 1093

20 (9th Cir. 1999). The evidence of the opposing party is to be

21 believed, see Anderson, 477 U.S. at 255, and all reasonable

22 inferences that may be drawn from the facts placed before the court

23 must be drawn in favor of the opposing party, see Matsushita, 475

24 U.S. at 587 (citing United States v. Diebold, Inc., 369 U.S. 654,

25 655 (1962) (per curiam)); See also Headwaters Forest Def. v. County

26 of Humboldt, 211 F.3d 1121, 1132 (9th Cir. 2000). Nevertheless,

9

1 inferences are not drawn out of the air, and it is the opposing

2 party's obligation to produce a factual predicate from which the

3 inference may be drawn. See Richards v. Nielsen Freight Lines, 602

4 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff'd, 810 F.2d 898, 902

5 (9th Cir. 1987).

6

Finally, to demonstrate a genuine issue, the opposing party

7 "must do more than simply show that there is some metaphysical

8 doubt as to the material facts. . . . Where the record taken as a

9 whole could not lead a rational trier of fact to find for the

10 nonmoving party, there is no 'genuine issue for trial.'"

11 Matsushita, 475 U.S. at 587 (citation omitted).

12

IV. ANALYSIS

13 A. Evidentiary Issues

14

1. Plaintiffs’ Objections to Defendants’ Declarations in

15

Opposition to Plaintiffs’ Motion for Summary Judgment

16

Federal Rule of Civil Procedure 56(e) mandates that affidavits

17 supporting or opposing a motion for summary judgment “set forth

18 such facts as would be admissible in evidence, and shall show

19 affirmatively that the affiant is competent to testify to the

20 matters stated therein.” Competence to testify requires that the

21 witness have personal knowledge of the facts comprising his

22 testimony. Fed. R. Evid. 602. An affiant whose statements rely on

23 hearsay clearly does not meet this standard. Block v. City of Los

24 Angeles, 253 F.3d 410, 419 (9th Cir. 2001).

25

An affiant who has not established the basis of his or her

26 knowledge has also failed to meet the requirements of Federal Rule

10

1 of Civil Procedure 56(e). In such a situation, as the Ninth Circuit

2 explained, “it is impossible to evaluate potential hearsay

3 implications of [the] statements [in the affidavit] without the

4 required personal knowledge foundation.” Norita v. N. Mariana

5 Islands, 331 F.3d 690, 697 (9th Cir. 2003). Although the affiant

6 may have based his or her statements on personal knowledge, the

7 affiant also could have based the statements on business records

8 he or she read, conversations with others who did have personal

9 knowledge, or even double hearsay. Id. at 697-98. These

10 possibilities justify strict adherence to the directives of Rule

11 56(e).

12

Here, portions of the declaration by Shelley Jones that

13 defendants offer in support of their opposition to summary judgment

14 purport to explain how the regulations for revoking the parole of

15 a juvenile are in fact carried out. See Decl. of Shelly Jones

16 (“Jones Decl.”) ¶ 3 (describing how parole agents “often”

17 investigate the circumstances of a law violation and when the

18 Juvenile Parole Board “usually” holds probable cause hearings), ¶

19 4 (describing how the Supervising Parole Agent decides whether to

20 issue a parole-hold), ¶ 5 (stating that “occasionally” the

21 revocation hearings do not occur within the typical timeline), ¶

22 6 (averring “upon information and belief” that there are

23 educational and work opportunities for juvenile parolees in DJJ

24 facilities). In her April 11, 2007 deposition, Ms. Jones identified

25 her job duties, which include scheduling hearings; drafting changes

26 to regulations, policies, and procedures; training hearing officers

11

1 and parole agents; analyzing appeals from wards; and analyzing

2 legislation. Depo. of Shelly Jones, Exh. F, Laubach Decl. This

3 being the case, the court concludes that the above-referenced

4 portions of the Jones declaration fail to comply with Rule 56(e),

5 because the basis of Ms. Jones’ knowledge is neither stated nor

6 apparent to the court. Therefore, the court sustains the

7 plaintiffs’ objection with regards to the factual averments

8 contained in these portions of her declaration.3

9

The declaration from Allen Wilcher that defendants offer in

10 support of their opposition to summary judgment is similarly

11 flawed. In his declaration, Mr. Wilcher described what occurs after

12 a juvenile parolee has been arrested on a new charge or when he is

13 believed to have committed a technical violation of the terms of

14 his parole. Decl. of Allen Wilcher (“Wilcher Decl.”) ¶¶ 2-3.

15 Although Mr. Wilcher identified himself as a Parole Agent III at

16 California Department of Corrections and Rehabilitation, a position

17 he has held since 1997, he has not explained how he is aware of the

18 steps that actually occur when a parolee is suspected to have

19 violated the terms of his parole. See Wilcher Decl. ¶ 1. Mr.

20 Wilcher has not declared that his statements are based on his

21 personal knowledge and observations. Because the statements in Mr.

22 Wilcher’s declaration may very well be based on business records

23 Mr. Wilcher read, conversations with others who did have personal

24
3 It may be that the defendants sought to tender Jones as an 25 expert, which might justify reliance on otherwise impermissible
matters. The defendants, however, failed to seek a determination 26 of that status or actually even notice such a status.

12

1 knowledge, or even double hearsay, the declaration does not satisfy

2 Rule 56(e).4

3

Accordingly, the court sustains plaintiffs’ objections to

4 defendants’ declarations in opposition to plaintiffs’ motion for

5 summary judgment.

6

2. Plaintiffs’ Request for Judicial Notice

7

Plaintiffs request the court take judicial notice of Senate

8 Report number 94-369, 1976 U.S.C.C.A.N. 335. This report describes

9 the Parole Commission and Reorganization Act. Plaintiffs have

10 provided a copy of this report to the Court as Exhibit K to the

11 Declaration of Maria Morris in Support of Plaintiff’s Motions for

12 Partial Summary Judgment.

13

A court may take judicial notice of a fact not subject to

14 reasonable dispute, either because the fact is generally known

15 within the territorial jurisdiction of the trial court or because

16 the fact is capable of accurate and ready determination from

17 sources whose accuracy cannot reasonably be questioned. Fed. R.

18 Evid. 201(b). A court shall take judicial notice of a judicially

19 noticeable fact “if requested by a party and supplied with the

20 necessary information.” Fed. R. Evid. 201(d).

21

Here, the Senate Report is a public record, and therefore the

22 court is able to accurately and readily determine its contents.

23 Furthermore, the contents of the Report derive from a source whose

24 accuracy cannot reasonably be questioned. Finally, plaintiffs have

25
4 Again, the defendants have failed to even seek to have 26 Wilcher declared an expert.

13

1 complied with Federal Rule of Evidence 201(d) by requesting

2 judicial notice and supplying the court with a copy of the Report.

3

Therefore the court takes judicial notice of Senate Report

4 number 94-369, 1976 U.S.C.C.A.N. 335.

5 B. Framework for Analysis of Plaintiffs’ Motion for Summary

6

Judgment

7

Plaintiffs move for partial summary judgment on two

8 alternative grounds. First, plaintiffs argue that, as a matter of

9 law, defendants violate plaintiffs’ due process rights by failing

10 to conduct two hearings prior to revocation of parole, one of which

11 being a preliminary hearing. Second and alternatively, plaintiffs

12 move for partial summary judgment on the grounds that, if a single

13 hearing is sufficient to revoke plaintiffs’ parole, defendants

14 violate plaintiffs’ due process rights by failing to hold such a

15 hearing promptly. Plaintiffs seek an injunction requiring that

16 defendants hold probable cause hearings for all juvenile parolees

17 within ten calendar days of the parolee being taken into custody

18 for revocation proceedings.

19

Because the issues presented in the present case present a

20 legal analysis similar to that which the court undertook in

21 Valdivia v. Davis, 206 F. Supp. 2d 1068 (E.D. Cal. 2002), the court

22 recreates the relevant portions of that opinion here.

23

In Mathews v. Eldridge, 424 U.S. 319 (1976), the Supreme Court

24 established a three step balancing test to resolve procedural due 25 process claims. While Mathews did not involve claims arising in a

26 parole context, that fact does not appear significant. Indeed,

14

1 procedural due process jurisprudence appears to employ the same

2 three part test irrespective of the context in which the claim

3 arises. See Greenholtz v. Inmates, Nebraska Penal & Correctional 4 Complex, 442 U.S. 1, 18,(1979).5 Of course to recognize that the

5 same standard applies, is not to say that context is irrelevant.

6 On the contrary, as explained below, context is one of the elements

7 to be considered in arriving at a conclusion as to what process is

8 due. I turn to the three part test.

9

The first criteria in assessing the process due is the value

10 of the liberty interest and the degree of potential deprivation. 11 See Mathews, 424 U.S. at 341. (citing Morrissey, 408 U.S. 471).

12 As the Court in Morrissey noted, “consideration of what procedures

13 due process may require under any given set of circumstances must

14 begin with a determination of the precise nature of the government

15 function involved as well as of the private interest that has been 16 affected by the governmental action.” Morrissey, 408 U.S. at 481 17 (quoting Cafeteria & Restaurant Workers Union v. McElroy, 367 U.S.

18 886, 895 (1961)). After identifying the nature of the right at

19 issue, the court must consider “the fairness and reliability of the

20

21

5 Morrissey v. Brewer, 408 U.S. 471 (1972), the seminal parole

violation case preceded Mathews. It cited to Mathews’ “direct 22 ancestors in reaching its conclusions”. See Morrissey, 408 U.S. at
481(citing Goldberg v. Kelly, 397 U.S. 254, 263(1970); Fuentes v. 23 Shevin, 407 U.S. 67(1972)). Moreover, Mathews, while involving a

property interest in Social Security disability benefits, cited to 24 cases in the prison context, as well as Morrissey, to develop its

test for determining the process due before deprivation of a 25 constitutionally protected interest. See Mathews, 424 U.S. at
333-34 (citing Wolff v. McDonnell, 418 U.S. 539, 557-58(1974); 26 Morrissey, 408 U.S. at 481)

15

1 existing pretermination procedures, and the probable value, if any,

2 of additional procedural safeguards.” Mathews, 424 U.S. at 343.

3 Finally, the court must consider the administrative burden and

4 other societal costs, or benefits, which might be associated with 5 requiring more process as a matter of constitutional law. Id. at

6 347.

7

As Morrissey noted, the liberty interest at stake in cases

8 such as the one at bar, is a parolee's interest in retaining the

9 “enduring attachments of normal life” so long as he or she does not

10 violate the conditions of parole. 408 U.S. at 482.6 While there

11 may be no constitutional right to parole and while the conditions

12 of parole may significantly restrict a parolee's freedom, it is

13 self-evident that the liberty interest of a parolee is quite

14 significant, and much greater than the liberty interest of a

15 prisoner still confined within the prison system.

See id.7

16 (“Though the State properly subjects [a parolee] to many

17 restrictions not applicable to other citizens, his condition is

18 very different from that of confinement in prison.”).8

19
6 The Court explained that: 20 “Subject to the conditions of his parole, he [the parolee] can be
gainfully employed and is free to be with family and friends and 21 to form the other enduring attachments of normal life ...”
Morrissey, 408 U.S. at 480. While juveniles may not all be seeking 22 gainful employment, they may be enrolled in school, an equally
important opportunity. 23

24

7 Just ask any defendant in a criminal trial whether he wants

probation or imprisonment. 25

8 Since the liberty interest of those persons outside the 26 prison is far greater then those who are imprisoned, cases such as

16

1

Under the rationale of Morrissey, the “fairness and

2 reliability” of the existing procedures should then be measured by

3 determining how effective the procedures are in assuring a

4 factually accurate statement of (1) whether there is probable cause

5 to believe that the parolee violated parole (procedures during

6 preliminary stage), and (2) whether the parolee did in fact violate

7 parole (procedures during revocation hearing). As the High Court

8 explained, “[i]n analyzing what [process] is due, we see two

9 important stages in the typical process of parole revocation ...

10 The first stage occurs when the parolee is arrested and detained,

11 usually at the direction of the parole officer. The second occurs

12 when parole is formally revoked.” 408 U.S. at 485. The first stage

13 is to insure that the parolee's life is not disrupted by an

14 unjustified parol hold, while the second stage requires reliable 15 information justifying the parolee's long term reincarceration. Id.

16 Fundamentally, the process due must include procedures which will

17 prevent parole from being revoked because of “erroneous information 18 or because of an erroneous evaluation.” Id. at 484.

19

Of course, as with all due process considerations, the balance

20 which the court strikes in the parole revocation context is

21 informed by an understanding that “due process is flexible and

22 calls for such procedural protections as the particular situation

23

24 Sandin v. Conner, 515 U.S. 472 (1995), and Meachum v. Fano, 427
U.S. 215 (1976), which involve asserted rights within prison, do 25 not inform what weight is to be accorded the liberty interest at
stake in the parole context. See also Young v. Harper, 520 U.S. 26 143, 147-48(1997).

17

1 demands.” Id. at 481. Put bluntly, however, flexibility is not a

2 shibboleth permitting something less than what the particular

3 situation does demand.

4

Given all the above, I now consider the process that is due

5 specifically when a parolee's liberty interest is endangered by a

6 claimed violation of the terms of parole.9

7

To assess the validity of plaintiffs' claim, the court must

8 first determine whether there is controlling precedent speaking to

9 the particular procedures due at the initial stage of the parole

10 revocation process. Obviously where binding precedent requires

11 particular procedures, the pertinent question is whether defendants

12 are providing those required procedures. In the absence of such 13 controlling precedent, the task is to apply the Mathews process to

14 the procedures at issue. As I now observe, the courts by which I

15 am bound have spoken with less than perfect clarity on the issues

16 before me.

17 C. Due Process Requirements for Pre-Revocation Hearings

18

19

9 Defendants appear to suggest that the Prison Litigation

Reform Act (“PLRA”), 18 U.S.C. § 3626(a)(1)(A), has altered the 20 values to be balanced requiring the court to afford “substantial

weight” to any adverse impact upon public safety or the operation 21 of the criminal justice system. I cannot agree. By its terms,

Section 3626(a)(1)(A) applies to any “civil action with respect to 22 prison conditions.” Here, plaintiffs do not challenge prison

conditions. Rather, plaintiffs challenge quite a different subject, 23 parole violation procedures. As noted supra, the Supreme Court has

long recognized different issues are at stake when addressing 24 parolees as contrasted with those who are imprisoned. Young v.

Harper, 520 U.S. 143(1997). While considerations of public safety 25 and the impact on the criminal justice system are proper factors

to weigh in determining the process due, the weight to be accorded 26 those factors is unaffected by PLRA.

18

1

Plaintiffs argue that due process requires, alternatively, a

2 bifurcated process that includes a preliminary hearing before the

3 revocation hearing, or a single revocation hearing held promptly.

4 This court concludes that because neither a preliminary hearing is

5 held promptly nor a single revocation hearing held promptly, the

6 defendants’ policies and practices violate the plaintiffs’ due

7 process rights.

8

Plaintiffs’ first alternative claim is that they are being

9 denied due process because defendants do not afford juvenile

10 parolees preliminary hearings to verify the existence of probable

11 cause prior to the revocation hearing. Defendants acknowledge that

12 juvenile parolees accused of technical violations do not receive

13 preliminary probable cause hearings. SUF ¶ 10. Defendants contend,

14 however, that all juvenile parolees accused of law violations are

15 entitled to preliminary hearings, although many choose to waive

16 their appearance at them. Defendants argue that the resulting

17 “hearing”10 that occurs in the parolee’s absence satisfies the

18 demands of due process.

19

Plaintiffs’ second alternative claim is that if a distinct

20 probable cause hearing is not required, defendants nevertheless

21 violate plaintiffs’ due process rights by failing to hold a hearing

22 in a sufficiently timely manner. Whether a juvenile parolee is

23
10 Defendants concede that, when a juvenile parolee waives his 24 appearance at the preliminary hearing, the State then does not hold
“an actual hearing.” Defs.’ Opposition at 10. Instead, a hearing 25 officer makes a probable cause determination based on the
information provided by the Supervising Parole Agent. Reyna Depo. 26 31:16-31:24, Exh. E, Laubach Decl.

19

1 taken into custody for an alleged technical violation or a law

2 violation, the State has sixty days (or more, upon written

3 explanation) to hold any hearing. SUF ¶¶ 12-15. This includes the

4 single revocation hearing for alleged technical violators and the

5 probable cause determination for law violators. SUF ¶¶ 12-13.

6

As the court explains below, because for neither technical nor

7 law violators does the State make a prompt probable cause

8 determination, the defendants’ parole revocation process for

9 juvenile offenders violates the latter’s due process rights. Even

10 if there is some question as to whether a separate preliminary

11 hearing must be held in order to satisfy the demands of due

12 process, it is clear that the law requires that a probable cause

13 determination be made promptly.

14

1. Defendants Are Required to Provide Plaintiffs With a

15

Prompt Probable Cause Determination

16

In Morrissey, the Supreme Court appeared to determine that the

17 Constitution requires a two stage process. 408 U.S. at 485, (“[W]e

18 see two important stages in the typical process of parole

19 revocation,” the first being the “arrest and preliminary hearing”

20 stage, and the second, “when parole is formally revoked.”). The

21 Court explained that the initial “inquiry should be seen as in the

22 nature of a ‘preliminary hearing’ to determine whether there is

23 probable cause or reasonable ground to believe that the arrested

24 parolee has committed acts that would constitute a violation of 25 parole conditions.” Id.

26

The Morrissey Court's explanation of the requirements for a

20

1 preliminary procedure plainly suggests that it contemplated a

2 “hearing” rather than some ex-parte process, for confirming

3 probable cause. For instance, in describing the “preliminary

4 hearing,” the Court stated that “the parolee should be given notice

5 that the hearing will take place and that its purpose is to

6 determine whether there is probable cause to believe he has 7 committed a parole violation.” Id. at 486-87. The Court added

8 that “[a]t the hearing, the parolee may appear and speak in his own

9 behalf; he may bring letters, documents, or individuals who can 10 give relevant information to the hearing officer.” Id. at 487.

11 Moreover, on request of the parolee, the “person who has given

12 adverse information on which parole revocation is to be based is 13 to be made available for questioning in his presence.” Id.

14 Finally, the Court required that the determination of reasonable

15 grounds “should be made by someone not directly involved in the 16 case.” Id. at 485.

17

Despite the fairly detailed description of a constitutionally

18 sufficient preliminary determination, it remains true that the 19 Court has repeatedly taught, and not just in Morrissey, that the

20 requisites of due process are flexible. As will be seen, this

21 teaching has suggested to some that Morrissey did not command two

22 hearings under all circumstances. As I now explain, that

23 conclusion, while plausible, is difficult to maintain in light of

24 the Supreme Court's next discussion of the issue.

25

A year after Morrissey, the Court explained that in that case

26 “we held that a parolee is entitled to two hearings, one a

21

1 preliminary hearing at the time of his arrest and detention to

2 determine whether there is probable cause to believe that he has

3 committed a violation of his parole, and the other a somewhat more

4 comprehensive hearing prior to the making of the final revocation 5 decision.” Gagnon v. Scarpelli, 411 U.S. 778, 781-82, (1973); see

6 also id. at 786(“Morrissey mandated preliminary and final

7 revocation hearings.”). The Gagnon Court again emphasized that

8 “[a]t the preliminary hearing, a probationer or parolee is entitled

9 to notice of the alleged violations ... an opportunity to appear

10 and to present evidence on his own behalf, a conditional right to

11 confront adverse witnesses, an independent decisionmaker, and a

12 written report of the hearing.” 411 U.S. at 786. Observing no

13 difference between parole revocation and probation revocation, the

14 Court stated that “we hold that a probationer, like a parolee, is 15 entitled to a preliminary and final revocation hearing.” Id. at

16 782.

17

While it would appear that, without more, Morrissey and Gagnon

18 are dispositive, this court is also bound by the Ninth Circuit's

19 interpretation of the teachings of the High Court. I thus turn to

20 the Circuit's cases.

21

Nine years after Gagnon, the question of hearings under

22 Morrissey was discussed in Pierre v. Washington State Board of 23 Prison Terms and Paroles, 699 F.2d 471 (9th Cir. 1983). There, a

24 habeas petitioner, after having his parole revoked, claimed that

25 the State did not adhere to its own guidelines for determining his

26 minimum prison term. The petitioner also claimed that he was denied

22

1 due process because the State did not provide him with a

2 preliminary hearing prior to his revocation hearing. On appeal, the

3 petitioner abandoned his claim regarding the preliminary hearing.

4 Nonetheless, after rejecting his claim concerning State guidelines,

5 the Circuit panel stated that “[a]lthough appellant abandoned his

6 contention that failure to hold a preliminary hearing prior to the

7 formal on-site revocation hearing violated his due process right, 8 we believe the issue is before us.” Pierre, 699 F.2d at 472.11 The

9 Pierre court then opined that the Supreme Court did not intend to

10 require two hearings in every case, but only in cases with a fact 11 pattern similar to the one before it in Morrissey. See Pierre, 699

12 F.2d at 472-73.12 Emphasizing the language in Morrissey abjuring

13 formalism in the revocation process, Pierre then declared that 14 “[u]nder the facts of Morrissey, the two-hearing system requirement

15 was just one way to satisfy minimum due process; it is not the 16 only way in every case.” Id. The Circuit panel failed to discuss

17 Gagnon's explanation that in Morrissey the Court had held that,

18 indeed, two hearings were required.

19

20

11 Given that anyone may waive a constitutional claim, the

Pierre court's assertion is indeed puzzling 21

12 In Morrissey, the Court explained the importance of a 22 prompt preliminary hearing noting that because “there is typically

a substantial time lag” between arrest and the final revocation 23 determination, and since “it may be that the parolee is arrested

at a place distant” from the place where the final revocation 24 hearing will take place, “due process would seem to require that

some minimal inquiry be conducted at or reasonably near the place 25 of the alleged parole violation or arrest and as promptly as

convenient after arrest while information is fresh and sources are 26 available.” 408 U.S. at 485.

23

1

At least one way of reading Pierre so as to be consistent with

2 Morrissey, is to read it as not departing from an obligation to

3 provide a preliminary probable cause hearing, but rather, as

4 concluding no more than that a final revocation hearing occurring

5 within twenty-one days of the arrest of a parolee was “prompt 6 enough to qualify as the preliminary probable cause determination 7 required by Morrissey.” Pierre, 699 F.2d at 473 (italics added).

8 This reading of Pierre is supported by subsequent Ninth Circuit 9 cases. In United States v. Stocks, 104 F.3d 308 (9th Cir.1997), a 10 panel stated that “[a]fter Morrissey, parole may not be revoked

11 unless the parolee is afforded a hearing as to probable cause and

12 a final revocation hearing. At the preliminary parole revocation

13 hearing, a parolee is entitled to notice of the alleged parole

14 violations, an opportunity to appear and to present evidence, a

15 conditional right to confront the government's witnesses, an

16 independent decision-maker, and a written report of the hearing.” 17 Id. at 311; see also White v. White, 925 F.2d 287 (9th Cir.

18 1991)(finding that Morrissey contemplated both a preliminary and

19 a final revocation hearing).13

20

Whatever else may be said for Pierre, it seems apparent it is

21 dicta. Moreover, although this court should pay respectful

22
13 In White the Ninth Circuit held that the Parole 23 Commission's refusal to allow plaintiff to confront and
cross-examine adverse witnesses at his parole revocation hearing 24 violated his right to due process. 925 F.2d at 290. While the case
addressed the final revocation hearing, the White court examined 25 Morrissey in detail and concluded that “[t]o gather the facts
necessary to make the two-part decision, the Morrissey court 26 contemplated two hearings.” Id. at 291

24

1 attention to Circuit dicta, given all the above it would seem the

2 defendants can only rely on Pierre if their practice of delaying

3 the revocation hearing for up to sixty days or more meets

4 Morrissey's requirement that there be a prompt determination of

5 probable cause. California's time frame for holding a hearing far

6 exceeds the twenty-one days the Pierre panel thought sufficed.

7

Defendants provide no authority to support the proposition

8 that an delay of sixty days or more is acceptable under Morrissey 9 and Gagnon.14 While some state courts have held that a preliminary

10 hearing can occur within thirty days from the date of arrest, see 11 State v. Myers, 86 Wash.2d 419, 545 P.2d 538 (1976)(en banc), it

12 does not appear that any court has indicated that a delay of more

13 than thirty days would be justifiable.15 Indeed, even in Ellis v. 14 District of Columbia, 84 F.3d 1413 (D.C.Cir.1996), the D.C. Circuit

15 case on which defendants rely, the policy required the final

16 revocation hearing to occur within thirty days from the date the

17 Board was notified of the execution of a warrant, and regulations

18

19

14 While Pierre opined that twenty-one days was not

inappropriate, the Seventh Circuit has suggested in dicta that a 20 ten day delay may violate Morrissey. See Luther v. Molina, 627 F.2d

71, 75, n. 3 (7th Cir.1980)(“Chief Justice Berger [in Morrissey] 21 seemed to be contemplating an almost immediate hearing.... It is

possible that a ten day delay between detention and the preliminary 22 hearing does not meet ... constitutional ... requirements.”)

23

15 It may be of some interest that the United States Senate

has noted relative to preliminary hearings in the federal parole 24 system, that a two-day detainment could result in a loss of

employment and severe disruption of the reintegration effort. See 25 S.Rep. No. 369, 94th Cong., 1st Sess. 25-26 (1975), reprinted in
1976 U.S.C.C.A.N. 335, 347, cited in Ellis v. District of Columbia, 26 84 F.3d 1413, 1430 (D.C. Cir.1996).

25

1 mandated a preliminary interview prior to the revocation hearing. 2 Id. at 1420.16

3

Given all the above, the court concludes that even if a prompt

4 unitary hearing would meet constitutional muster, a question I need

5 not resolve, California’s system allowing a delay of up to sixty

6 days or more before providing the parolee an opportunity to be

7 heard regarding the reliability of the probable cause determination

8 does not.17

9

2. The Court’s Conclusion is Compelled by Mathews

10

Even assuming that Morrissey and Gagnon do not compel a

11 prompt, distinct probable cause hearing, the court's conclusion

12
16 The majority in Ellis, like Pierre, emphasized the flexible 13 nature of due process and distinguished the facts in the District
of Columbia from those in Morrissey. As the dissent pointed out, 14 however, that reasoning fails to come to grips with Gagnon's
explanation that two hearings are required by Morrissey. See 15 Ellis, 84 F.3d at 1429-30 (Tatel, J., dissenting). While the
majority relied on the footnote in Gagnon encouraging the States 16 to devise “creative solutions” to cope with the practical
difficulties of complying with Morrissey, Ellis, 84 F.3d at 1422 17 (citing Gagnon, 411 U.S. at 782, n. 5), that cannot reasonably be
construed as an invitation to avoid the fundamental requirements 18 of Morrissey. Whatever “creative solutions” or flexibility the Due
Process Clause permits, it would appear that the Supreme Court has 19 so far done nothing to indicate a retreat from its previous
position. Finally, for what it is worth, California's situation far 20 more clearly resembles that found in Morrissey rather than the
situation in the District of Columbia. In sum, then, with all due 21 respect, I do not find Ellis helpful in resolving the issue before
this court. 22
17 Plaintiffs further have argued that the hearing offered to 23 juvenile parolees accused of law violations is illusory, because
the process by which defendants obtain waivers of the parolees’ 24 appearance at the hearings is unlawful. The court observes that a
waiver of a Constitutional right must be made knowingly and 25 voluntarily, Ostund v. Bobb, 682 F.2d 1371, 1373 (9th Cir. 1987),
but the court need not reach the question of whether defendants’ 26 waivers comply with this requirement.

26

1 above is necessitated upon application of the Mathews test. In

2 order to protect a parolee's liberty interest, Morrissey requires

3 procedures to insure not only that the State does not revoke parole

4 without an adequate factual basis, but that parolees are not

5 detained without some sort of assurance that there is probable

6 cause to suspect a parole violation. The effect of detention

7 itself, in its disruption of the juvenile parolee's family

8 relationships, education, job, and life, is sufficiently

9 significant to require such a procedure.

10

Moreover, it is clear that the informal probable cause

11 determination procedures used for technical violations and when a

12 parolee waives his appearance at the preliminary hearing for a law

13 violation place a severe strain on an accurate fact-finding

14 process. In both situations, the decision to hold a juvenile

15 parolee in custody appears to be based solely on the determination

16 of the parole officer and Supervising Parole Agent, who appear to

17 rely solely on the evidence the parole officer has gathered to

18 support the parole-hold. See Reyna Depo. 31:16-31:24, Exh. E,

19 Laubach Decl. Such decisions contain few of the hallmarks of a

20 reliable process as envisioned by the Mathews Court. Because the

21 conclusion that a parole violation has occurred is one where “a

22 wide variety of information may be deemed relevant, and issues of

23 witness credibility and veracity are often critical to the

24 decisionmaking process,” the procedures currently in place for

25 these groups of alleged parole violators seem only minimally

26 reliable. See Mathews, 424 U.S. at 907.

27

1

Finally, of course, the court must balance the social interest

2 in protecting an individual's interest in remaining at large with

3 the State's interest in protecting the public from parolees who

4 have violated the conditions of their parole. In seeking to weigh

5 that interest, however, the court is handicapped, since the

6 defendants offer no evidence for the proposition that a delay of

7 sixty days or more is necessary to insure protection of that

8 interest. Moreover, while administrative inconvenience is a proper

9 Mathews consideration, the inconvenience occasioned by a prompt

10 probable cause hearing would not appear to be, in and of itself,

11 a sufficient justification for the potentially catastrophic

12 consequences of delay. Indeed, the Supreme Court seems to view with 13 equanimity the inconvenience that Morrissey engendered. See Gagnon,

14 411 U.S. at 782, n. 5 (“[s]ome amount of disruption inevitably

15 attends any new constitutional ruling.”).

16

For all the above reasons, the court concludes that whether

17 viewed as compelled by Morrissey or the result of a Mathews

18 balancing test, the current California parole revocation system

19 violates the plaintiffs’ due process rights.

20 D. Injunctive Relief

21

Plaintiffs argue that because the due process violations at

22 issue in this case are so similar to those in Valdivia, the

23 Valdivia remedy should equally apply here. Specifically, the

24 plaintiffs seek this court to order defendants to make probable

25 cause determinations within ten calendar days of the juvenile

26 parolee being taken into custody, as the court ordered for adult

28

1 parolees in Valdivia. See order.

2

Such an order, however, is premature for the case at bar.

3 Although the due process failures that occur for juvenile parolees

4 are similar to those that the court identified in Valdivia, that

5 does not necessarily require identical remedies. Indeed, the

6 Supreme Court in both Morrissey and Gagnon noted that the solutions

7 to due process violations in the parole revocation context depend

8 on the demands of the particular circumstances. See Morrissey, 408

9 U.S. at 481; Gagnon, 411 U.S. at 782, n. 5. The touchstone of any

10 remedy is that the State meet the mandates of Morrissey and Mathews

11 for guaranteeing due process in the juvenile parole revocation

12 procedures. The plaintiffs have not shown that there is no genuine

13 issue of material fact that the circumstances of juvenile parole

14 revocation require that the probable cause determination be made

15 within ten calendar days of the parolee being taken into custody.

16

VI. CONCLUSION

17

Plaintiffs’ motion for partial summary judgment is GRANTED as

18 to their due process claim, but DENIED as to the issue of 19 injunctive relief.18

20

IT IS SO ORDERED.

21

DATED: September 18, 2007.

22

23

24

25

18 Having said as much, the court does not mean to encourage

delay. The defendants have thirty (30) days to tender a plan to 26 meet constitutional standards.

29

 
 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
[240610-2]

ROSEN, BIEN & GALVAN, LLP MICHAEL W. BIEN (SBN 096891) GAY C. GRUNFELD (SBN 121944) MEGHAN R. LANG (SBN 221156) MARIA V. MORRIS (SBN 223903) SHIRLEY HUEY (SBN 224114) NURA MAZNAVI (SBN 232008) 315 Montgomery Street, Tenth Floor San Francisco, California 94104 Telephone: (415) 433-6830
BINGHAM McCUTCHEN LLP GEOFFREY T. HOLTZ (SBN 191370) KRISTEN A. PALUMBO (SBN 215857) BRIANA LYNN ROSENBAUM (SBN 239977) Three Embarcadero Center San Francisco, CA 94111-4067 Telephone: 415.393.2000
Attorneys for Plaintiffs
EDMUND G. BROWN JR. DAVID S. CHANEY ROCHELLE C. EAST WILLIAM C. KWONG (SBN 168010) 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102-7004 Telephone: (415) 703-5724 Fax: (415) 703-5843 Email: William.Kwong@doj.ca.gov
Attorneys for Defendants

YOUTH LAW CENTER SUSAN L. BURRELL (SBN 074204) CAROLE SHAUFFER (SBN 100226) CORENE KENDRICK (SBN 226642) 200 Pine Street, 3rd Floor San Francisco, CA 94104 Telephone: (415) 543-3379
PRISON LAW OFFICE DONALD SPECTER (SBN 83925) SARA NORMAN (SBN 189536 ) 1917 Fifth Street Berkeley, California 94710-1916 Telephone: (510) 280-2621 Facsimile: (510) 280-2704

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

L.H., A.Z., D.K., D.R., M.N. and R.C., on behalf of themselves and all other similarly situated juvenile parolees in California,
Plaintiffs, v.
ARNOLD SCHWARZENEGGER, Governor, State of California, MATTHEW L. CATE, Secretary, California Department of Corrections and Rehabilitation (CDCR); DAVID RUNNELLS, Undersecretary, CDCR; BERNARD WARNER, Chief Deputy Secretary of the Division of Juvenile Justice; CAROLINA GARCIA, Director, Division of Juvenile Parole; DENNIS DULAY, Acting Deputy Director of the Division of Juvenile Parole Operations; MARTIN HOSHINO, Executive

Case No. 2:06-CV-02042-LKK-GGH

JOINT MOTION FOR FINAL APPROVAL OF STIPULATED ORDER FOR PERMANENT INJUNCTIVE RELIEF; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

HEARING

Date:

October 6, 2008

Time:

10:00 a.m.

Courtroom: 4

Judge: Hon. Lawrence K. Karlton

A/72649295.5
JOINT MOTION FOR FINAL APPROVAL OF STIPULATED ORDER FOR PERMANENT INJUNCTIVE RELIEF Case No. 2:06-CV-02042-LKK-GGH

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
[240610-2]

Director of the Board of Parole Hearings (BPH); JAMES DAVIS, Chair of the BPH; JOYCE ARREDONDO, PAUL CHABOT, JOSEPH COMPTON, SUSAN MELANSON, THOMAS MARTINEZ, ASKIA ABULMAJEED, and CHUCK SUPPLE, Commissioners and Board Representatives, CDCR; DIVISION OF JUVENILE JUSTICE; BOARD OF PAROLE HEARINGS; and the JUVENILE PAROLE BOARD,
Defendants.
A/72649295.5
JOINT MOTION FOR FINAL APPROVAL OF STIPULATED ORDER FOR PERMANENT INJUNCTIVE RELIEF Case No. 2:06-CV-02042-LKK-GGH

1

TABLE OF CONTENTS

2

Page

3 NOTICE OF MOTION AND MOTION ....................................................................................... 1

4 MEMORANDUM OF POINTS AND AUTHORITIES ............................................................... 2 I. INTRODUCTION ............................................................................................................. 2
5 II. HISTORY OF THE LITIGATION.................................................................................... 3

6

A. Claims Asserted by the Plaintiff Class................................................................... 3

7 8 III. 9 10

B. Fact and Expert Discovery ..................................................................................... 4 C. Relevant Procedural History .................................................................................. 4 THE SETTLEMENT IS FAIR, REASONABLE AND ADEQUATE AND MERITS THE COURT’S FINAL APPROVAL ............................................................... 6 A. Legal Standard Regarding Final Approval of Settlement ...................................... 6 B. The Stipulated Order is Fair, Adequate and Reasonable ....................................... 7

11

1. Adequacy of the Injunction........................................................................ 7

12

a. Right to Counsel............................................................................. 8

b. Nature and Timing of Proceedings ................................................ 9

13

c. ADA and Effective Communication Accommodations............... 10

14

d. Right to Appeal ............................................................................ 11

15

e. Unresolved Issue .......................................................................... 12

2. The Case Settled After Discovery............................................................ 12

16

3. There Was No Fraud or Collusion ........................................................... 12

17

4. Class counsel have extensive experience in prisoner and parolee

class action litigation and believe that the settlement is in the best

18

interest of the class ................................................................................... 13

19

5. Strength of plaintiffs’ claims and risk, expense, complexity, and likely duration of further litigation........................................................... 14

20 21 IV.

6. Reaction of the class members and others to the proposed settlement ................................................................................................. 14
CONCLUSION ................................................................................................................ 15

22

23

24

25

26

27

28 i
JOINT MOTION FOR FINAL APPROVAL OF STIPULATED ORDER FOR PERMANENT INJUNCTIVE RELIEF Case No. 2:06-CV-02042-LKK-GGH

1

TABLE OF AUTHORITIES

2

Page

3

Cases

4

Gagnon v. Scarpelli, 411 U.S. 778 (1973)..................................................................................... 5

5

Hanlon v. Chrysler Corp., 150 F.3d 1011 (9th Cir. 1998)............................................................. 7

6

In re Austrian & German Bank Holocaust Litig., 80 F. Supp. 2d 164 (S.D.N.Y.

7

2000) ...................................................................................................................................... 12

8 In Re Mego Financial Corporation Sec. Lit., 213 F.3d 454 (9th Cir. 2000) ................................. 7

9 In re Mid-Atlantic Toyota Antitrust Litig., 564 F.Supp. 1379 (D. Md. 1983) ............................. 12

10 In re Milken and Associates Securities Litigation, 150 F.R.D. 46 (S.D.N.Y.,1993) ................... 14

11 L.H. v. Schwarzenegger, 519 F. Supp. 2d 1072 (E.D. Cal. 2007) ................................................. 5

12 Morrissey v. Brewer, 408 U.S. 481 (1972) .................................................................................... 4

13 Torrisi v. Tucson Electric Power Co., 8 F.3d 1370 (9th Cir. 1993) .............................................. 7

14 Statutes
15 18 U.S.C. § 3626 ............................................................................................................................ 6
16

17 Other Authorities

18 4 Newberg on Class Actions .................................................................................................. 12, 14

19 Rules
20 FRCP 23(e) ............................................................................................................................ 1, 2, 6
21

22

23

24

25

26

27

28 ii
JOINT MOTION FOR FINAL APPROVAL OF STIPULATED ORDER FOR PERMANENT INJUNCTIVE RELIEF Case No. 2:06-CV-02042-LKK-GGH

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
[240610-2]

NOTICE OF MOTION AND MOTION TO ALL PARTIES AND THEIR COUNSEL OF RECORD: PLEASE TAKE NOTICE that on October 6, 2008, at 10:00 a.m., or as soon thereafter as the matter may be heard before the Honorable Lawrence K. Karlton, United States District Judge, Eastern District of California, Sacramento Division, the parties will and hereby do jointly move the Court pursuant to Rule 23(e) of the Federal Rules of Civil Procedure for an Order granting final approval of the Stipulated Order for Permanent Injunctive Relief entered into by the parties. This hearing date was previously set by the Court in its June 17, 2008 Order. This motion is made on the grounds that the settlement is fair, reasonable and adequate. This motion is based on this Notice of Motion and Motion, the following Memorandum of Points and Authorities, the Declaration of Gay Grunfeld, the entire complete files and record in this action and the related case of Valdivia v. Schwarzenegger, No. CIV. S-94-671 LKK/GGH, and oral arguments to be presented by counsel.

A/72649295.5

1

JOINT MOTION FOR FINAL APPROVAL OF STIPULATED ORDER FOR PERMANENT INJUNCTIVE RELIEF Case No. 2:06-CV-02042-LKK-GGH

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
[240610-2]

MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION
On June 13, 2008, Plaintiffs and Defendants submitted to this Court a Stipulated Motion for Preliminary Approval of Class Action Settlement. The parties’ Motion sought preliminary approval of their Stipulated Order for Permanent Injunctive Relief (“Stipulated Order” or “Injunction,” attached herewith as Exhibit A to the Declaration of Gay Grunfeld (“Grunfeld Decl.”)). Finding that the Stipulated Order “falls within the range of possible approval,” and that it was “the product of arm’s-length, serious, informed and non-collusive negotiations between experienced and knowledgeable counsel who have actively prosecuted and defended this litigation,” this Court granted preliminary approval of the Stipulated Order on June 17, 2008, directed that notice be provided to the class, and set the final approval hearing pursuant to Rule 23(e) for the Federal Rules of Civil Procedure for October 6, 2008. See Order Granting Stipulated Motion for Preliminary Approval of Class Action Settlement and Scheduling Hearing on Final Settlement Approval, dated June 17, 2008 (Docket No. 415) (“June 17, 2008 Order”). On July 28, 2008, Defendants affirmed that notice had been provided to the Class pursuant to the Court’s June 17, 2008 Order, and notice was also posted on the defendants’ web site. No class member objected1 or sought to intervene, and several class members responded to the notice by voicing support for the settlement.
The proposed settlement was made possible only after Plaintiffs had conducted extensive fact and expert discovery and prevailed on key motions for summary judgment, the appointment of a special master, and a preliminary injunction. It was achieved through extensive, arm’slength negotiations over an extended period of time. Under the terms of the proposed settlement, Defendants will make unprecedented changes to California’s current juvenile parole revocation system which will confer substantial benefits to the class. These changes, along with the other

1 As further discussed below, two objections were received from class members not on fairness grounds but on the perceived ground that the Injunction does not, but should, apply to them. This is an issue in dispute and may need to be resolved by the Special Master or the Court. If Plaintiffs’ position prevails, then the objections are moot.

A/72649295.5

2

JOINT MOTION FOR FINAL APPROVAL OF STIPULATED ORDER FOR PERMANENT INJUNCTIVE RELIEF Case No. 2:06-CV-02042-LKK-GGH

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
[240610-2]

provisions of the proposed settlement, will overhaul completely California’s current unconstitutional and outdated juvenile parole revocation system. Among the most significant reforms are that all juvenile parolees will now be represented by counsel in the revocation process, they will not be subjected to parole holds of 60 days or more with no hearing, they will receive preliminary probable cause hearings, and their revocation terms will be fixed, not indeterminate. The latter reform is particularly significant because previously juvenile parolees were subjected to “time-adds” extending their incarceration for lengthy periods.2 In addition, juvenile parolees will receive the ADA and effective communication rights adult parolees have.
The proposed settlement sets forth the overall framework for change, and the specific implementing policies and procedures are currently being negotiated and drafted. Plaintiffs’ counsel have been full participants in that process and will zealously advocate on behalf of the class (with the oversight of the Court, if necessary) throughout the implementation and monitoring stages of the settlement.
Accordingly, the parties respectfully submit this joint motion for final approval of the Stipulated Order for Permanent Injunctive Relief. II. HISTORY OF THE LITIGATION
A. Claims Asserted by the Plaintiff Class This action was filed on September 13, 2006. Grunfeld Decl. ¶ 3. The case was filed as a class action alleging that California’s juvenile parole revocation procedures violated juvenile parolees’ due process and other rights. Plaintiffs, on behalf of themselves and the class they represent, challenged the constitutionality of the juvenile Parole Revocation process conducted by the California Board of Parole Hearings (“BPH”), the Division of Juvenile Justice (“DJJ”), the Juvenile Parole Board (“JPB”) and the California Department of Corrections and Rehabilitation (“CDCR”). Grunfeld Decl. ¶ 3. Plaintiffs’ complaint contained claims for

2 By including the end to time-adds for revoked parolees and requiring due process in revocation extensions in the Stipulated Injunction, significant relief was provided to the Plaintiff class without further burdens and delays.

A/72649295.5

3

JOINT MOTION FOR FINAL APPROVAL OF STIPULATED ORDER FOR PERMANENT INJUNCTIVE RELIEF Case No. 2:06-CV-02042-LKK-GGH

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
[240610-2]

violations of due process, equal protection, the Americans with Disabilities Act (“ADA”)/Rehabilitation Act, and denial of the right to counsel.

B. Fact and Expert Discovery Discovery in this litigation was hard fought and intense. Over the period from February

2007 – April 2008, Plaintiffs took 29 depositions of DJJ and JPB personnel, and Defendants took

the depositions of three named Plaintiffs. In addition, Defendants produced over 150,000 hard

copy documents and about 100,000 electronic documents. Over the course of seeking discovery, Plaintiffs filed several motions to compel, resulting in two sanctions orders from Magistrate Judge Hollows. See Order of September 21, 2007; Docket No. 202; Order of May 14, 2008, Docket No. 362.

In February 2008, Plaintiffs disclosed their experts and filed four expert reports with this

Court, describing the due process and ADA violations in defendants’ parole revocation process.

Defendants disclosed two rebuttal experts. Expert depositions were underway at the time of the

settlement.

C. Relevant Procedural History The Court certified this case as a class action by order dated February 28, 2007. Grunfeld Decl. ¶ 4. The Plaintiff class consists of the following persons: Juvenile Parolees in or under the

jurisdiction of California, including all Juvenile Parolees with Disabilities, as that term is defined

in Section 504 of the Rehabilitation Act and the ADA, who are: 1) in the community under

parole supervision or who are at large; 2) in custody in California as alleged parole violators, and

who are awaiting revocation of their parole; or 3) in custody, having been found in violation of parole and returned to custody. Grunfeld Decl. ¶ 4.
On September 19, 2007, this Court granted partial summary judgment in favor of Plaintiffs, holding that California’s juvenile parole revocation system violates the due process

rights of the Plaintiff class under Morrissey v. Brewer, 408 U.S. 481 (1972), Gagnon v. Scarpelli,

411 U.S. 778 (1973), and related authority. The Court held that California’s juvenile Parole

Revocation system violated the due process clause of the Fourteenth Amendment by “allowing a

delay of up to sixty days or more before providing the parolee an opportunity to be heard

A/72649295.5

4

JOINT MOTION FOR FINAL APPROVAL OF STIPULATED ORDER FOR PERMANENT INJUNCTIVE RELIEF Case No. 2:06-CV-02042-LKK-GGH

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
[240610-2]

regarding the reliability of the probable cause determination.” L.H. v. Schwarzenegger, 519 F.

Supp. 2d 1072, 1085 (E.D. Cal. 2007). The Court denied Plaintiffs injunctive relief, but ordered

Defendants to tender a remedial plan meeting constitutional standards within thirty days. Plans

and objections were filed over the ensuing three months. See Docket Nos. 201, 207 & 214.

On January 29, 2008, the Court granted Plaintiffs’ subsequent motion for preliminary

injunction, ordering Defendants to begin appointing counsel to represent Juvenile Parolees at

Parole Revocation Proceedings by February 15, 2008, to provide counsel with access to

necessary files sufficiently in advance of the hearing to allow adequate preparation, and to

develop sufficiently specific draft Policies and Procedures to ensure continuous compliance with

all of the requirements of the Americans with Disabilities Act. The draft ADA Policies and

Procedures were to be submitted to the Court no later than March 15, 2008. Additionally, Chase

Riveland was appointed to serve as settlement referee in the case. Grunfeld Decl. ¶ 5. In late

March 2008, frustrated by the slow pace of reform, Plaintiffs moved for enforcement orders and

appointment of a Special Master. In response, Defendants began holding probable cause

hearings for some juvenile parolees. The Court later granted Plaintiffs’ motion to appoint Chase

Riveland as Special Master and entered the Order of Reference on May 22, 2008. Grunfeld

Decl. ¶ 9.

On May 16, 2008, Plaintiffs filed a Motion for Summary Judgment and Permanent

Injunction Regarding Attorney Appointment For Juvenile Parolees. Plaintiffs filed separate

motions for summary judgment regarding Defendants’ routine use of mechanical restraints and

requiring Defendants to comply with Due Process and the ADA in the Revocation Appeals

Process on May 18, 2008 and May 19, 2008, respectively. On May 18, 2008, Plaintiffs also filed

a second Motion for Remedial Order. Grunfeld Decl. ¶ 8.

Hearings in all five motions were set originally for June 16, 2008. Grunfeld Decl. ¶ 8.

These motions were still pending at the time the parties entered into the settlement, and were

later taken off the Court’s calendar.

Settlement negotiations occurred over the period from June 13, 2007, when the parties

first met at JAMS, continued regularly during the summer of 2007, and occurred periodically

A/72649295.5

5

JOINT MOTION FOR FINAL APPROVAL OF STIPULATED ORDER FOR PERMANENT INJUNCTIVE RELIEF Case No. 2:06-CV-02042-LKK-GGH

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
[240610-2]

from that time through and after the Court’s order of January 29, 2008 appointing Chase Riveland as settlement referee. During the almost one-year period of settlement discussions, the parties engaged in multiple conferences and revisions of draft settlement injunctions, all leading up to the June 4, 2008 Stipulated Order. Grunfeld Decl. ¶ 12.
As part of the Stipulated Order, the parties stipulated that this is not a “civil case with respect to prison conditions,” as those terms are defined and applied in the Prison Litigation Reform Act (“PLRA”), 18 U.S.C. § 3626.
The parties submitted a Stipulated Motion for Preliminary Approval of Class Settlement on June 13, 2008. The Court signed an Order on June 17, 2008 granting the Stipulated Motion. The Court found that the Stipulated Order “falls within the range of possible approval,” and that it was “the product of arm’s-length, serious, informed and non-collusive negotiations between experienced and knowledgeable counsel who have actively prosecuted and defended this litigation.” As part of the Order, the Court approved the Proposed Class Notice and ordered that it be disseminated to the Class. Defendants confirmed on July 25, 2008 in a declaration filed with this court that Notice had been provided to the Class in accordance with the Court’s June 17, 2008 Order. Declaration of Shelly Jones Affirming That Defendants Have Published Notice of Class Action As Directed By The Court’s Order, dated July 25, 2008 (Docket No. 421).

III. THE SETTLEMENT IS FAIR, REASONABLE AND ADEQUATE AND MERITS THE COURT’S FINAL APPROVAL
The settlement presented to the Court for final approval represents a fair and reasonable

resolution of this dispute, as it provides constitutional and ADA reforms to California’s juvenile parole system.

A. Legal Standard Regarding Final Approval of Settlement Federal Rule of Civil Procedure 23(e) provides that “[t]he court must approve any

settlement, voluntary dismissal, or compromise of the claims, issues, or defenses of a certified

class.” The Court may approve a settlement on a finding that it is “fair, reasonable, and

adequate.” Fed.R.Civ.P. 23(e)(1)(C). See also In Re Mego Financial Corporation Sec. Lit., 213

F.3d 454, 458 (9th Cir. 2000); Torrisi v. Tucson Electric Power Co., 8 F.3d 1370, 1375 (9th Cir.

A/72649295.5

6

JOINT MOTION FOR FINAL APPROVAL OF STIPULATED ORDER FOR PERMANENT INJUNCTIVE RELIEF Case No. 2:06-CV-02042-LKK-GGH

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
[240610-2]

1993) (court held settlement properly approved because settlement was fundamentally fair, reasonable and adequate).
The Ninth Circuit has set forth several factors for courts to consider when determining whether a proposed settlement is fair, adequate and reasonable, including: (1) the adequacy of the proposal; (2) the extent of discovery completed and the stage of the proceedings; (3) the lack of fraud or collusion among the negotiating parties; (4) the experience and views of counsel; (5) the strength of the plaintiffs’ claims; (6) the risk, expense, complexity, and likely duration of further litigation; and (7) the reaction of the class members to the proposed settlement. See In Re Mego Financial Corp. Sec. Lit., 213 F.3d 454, 458 (9th Cir. 2000); Hanlon v. Chrysler Corp., 150 F.3d 1011, 1026 (9th Cir. 1998); Torrisi, 8 F.3d at 1375. This list is not exclusive and different factors may predominate in different factual contexts. Torrisi, 8 F.3d at 1376. However, “[i]t is the settlement taken as a whole, rather than the individual component parts, that must be examined for overall fairness.” Hanlon, 150 F.3d at 1026 (citation omitted).

B. The Stipulated Order is Fair, Adequate and Reasonable As set forth below, an analysis of each of these factors weighs in favor of a determination that the proposed settlement is fair, adequate and reasonable and should be approved by the Court.

1. Adequacy of the Injunction The settlement embodied in the Stipulated Order for Permanent Injunctive Relief

(attached to the Grunfeld Declaration as Exhibit A), taken as a whole, addresses all of the

constitutional violations alleged by Plaintiffs. It confers on the class significant benefits, some of

which (such as the end of time-adds for revoked parolees) Plaintiffs may not have been able to

achieve if had they litigated and prevailed at trial.

The settlement provides for broad changes in the parole revocation process for the Class

and the implementation of significant new due process protections for the benefit of class

members facing parole revocation and extensions of their revocation sentencing periods. These

reforms are to be developed and put into practice over a relatively short timeframe under the

settlement. The Stipulated Order requires Defendants to fully implement the due process

A/72649295.5

7

JOINT MOTION FOR FINAL APPROVAL OF STIPULATED ORDER FOR PERMANENT INJUNCTIVE RELIEF Case No. 2:06-CV-02042-LKK-GGH

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
[240610-2]

reforms to their Revocation Process within 180 days after the signing of the Stipulation, and no later than December 15, 2008. Grunfeld Decl. Ex. A. The Stipulated Order requires Defendants to fully implement ADA reforms to the revocation process no later than 90 days after the signing of the Stipulation, i.e., by September 4, 2008. To ensure these reforms are effective, the

Stipulated Order requires extensive training of the staff responsible for the juvenile parole

revocation proceedings, as well as development of Policies and Procedures and revision of

outdated forms and regulations. The significant advantages to the class include the following requirements under the
Stipulated Order:

a. Right to Counsel The Stipulated Order provides that Defendants must develop and implement policies and

procedures to implement the due process protections and meet certain enumerated requirements

in the juvenile parole revocation process. These requirements include, among other things, that

“Defendants shall appoint counsel to represent each and every Juvenile Parolee in the Revocation Process” and that “Defendants shall not accept any written admissions to a violation of condition of parole, or waivers of hearing rights, or the right to counsel made prior to the Juvenile Parolee’s first meeting with his or her counsel.” Grunfeld Decl. Ex. A, at 6:11-12. The

Stipulated Order also provides that a juvenile parolee may be represented by counsel of his or her

own choosing, including the public defender who represented the parolee at the time of

commitment, or private counsel at the parolee’s expense. Id. Ex. A at 6:27-7:6.

The appointment of counsel will take place early in the process—no later than 8 business days after imposition of the Parole Hold. Id. Ex. A at 6:14-15. “At the time of appointment, counsel shall be provided with all of the evidence in the State’s possession that the State intends to rely upon or that may be exculpatory. . . Evidence or documents not provided to the Juvenile

Parolee’s counsel at least 48 hours prior to the hearing shall not be admitted or considered in the

hearing unless Defendants can show good cause for the delay.” Id. Ex. A at 7:7-14.

The Stipulated Order also provides that class members are entitled to counsel when

Defendants seek to extend the sentencing period that has been imposed after a parole revocation

A/72649295.5

8

JOINT MOTION FOR FINAL APPROVAL OF STIPULATED ORDER FOR PERMANENT INJUNCTIVE RELIEF Case No. 2:06-CV-02042-LKK-GGH

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
[240610-2]

proceeding. “A Juvenile Parolee who faces a Revocation Extension Hearing shall be represented by counsel at the hearing and have all of the same rights articulated in ¶¶ 41, 42, and 43.” Id. Ex. A at 11:25-27.
This Court confirmed the Juvenile Parolees’ right to counsel in revocation proceedings in

its January 29, 2008 Order. However, that right has not been tested or affirmed on appeal. At

the time the settlement was reached, this Court had not yet heard or resolved the issue of the

right to counsel in Revocation Extension proceedings or appeals. The Stipulated Order ensures that each Juvenile Parolee will be provided counsel in parole revocation and revocation extension proceedings and appeals from these proceedings.

b. Nature and Timing of Proceedings The Stipulated Order offers parity with the adult system for timing and other due process

protections in the revocation process, requiring that “Defendants shall provide a live hearing to

determine probable cause no later than 13 business Days after the Parole Hold is placed.” Id. Ex.

A at 10:12-13. “For all Juvenile Parolees who do not waive or seek a continuance of a timely Parole Revocation Hearing, Defendants shall provide a live, in-person, face-to-face final Revocation Hearing on or before the 35th calendar Day after the Parole Hold is placed absent good cause.” Id. Ex. A at 10:19-22. “All Parole Revocation Hearings shall be held within a 50-

mile radius of the alleged violation. The location of hearings shall be accessible to and usable by

Juvenile Parolees with Disabilities.” Id. Ex. A at 12:3-5.

Whereas parole revocation sentencing was previously indeterminate and could extend

until a Juvenile Parolee “aged out” of the juvenile system at age 25, the Stipulated Order limits the amount of time that a Juvenile Parolee may be returned to custody for a parole violation to one year. The Stipulated Order requires that Defendants “develop a matrix of ranges of revocation terms for specific violations.” Id. Ex. A at 11:12-14. Defendants are also required to

“consider whether alternatives to incarceration are warranted.” Id. Ex. A at 27:15-19. While

Defendants previously added time to a Juvenile Parolee’s sentence without a formal hearing, the

Stipulated Order provides that a Juvenile Parolee’s revocation period may be extended only after

Defendants hold a Revocation Extension Hearing, with due process and counsel provided,

A/72649295.5

9

JOINT MOTION FOR FINAL APPROVAL OF STIPULATED ORDER FOR PERMANENT INJUNCTIVE RELIEF Case No. 2:06-CV-02042-LKK-GGH

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
[240610-2]

“which shall take place before a Juvenile Parole Board hearing Officer at the earliest practical time after the alleged conduct that is grounds for the charge.” Id. Ex. A at 11:19-20.
The Stipulated Order also ensures important Confrontation Clause rights in revocation proceedings. “The use of hearsay evidence in Parole Revocation Hearings and Revocation Extension Hearings shall be limited by the Juvenile Parolee's confrontation rights in the manner set forth in controlling legal authority.” Id. Ex. A at 12:6-8.
In addition, the Stipulated Order eliminates the prior practice of Temporary Detentions, which allowed Defendants to hold Juvenile Parolees for up to 30 days with no hearing. Id. Ex. A at 12:18-19. The Stipulated Order also mandates that the “Parolee shall be released as soon as practically possible, but no later than 3 business Days after the hearing” “[i]n the event that the hearing officer/decision-maker decides to revoke parole, but imposes an amount of revocation time that is less than the amount of time the Juvenile Parolee has been detained.” Id. Ex. A at 12:11-14. The Stipulated Injunction also prohibits discrimination in parole placements and referrals to services. Id. Ex. A at 9:21-22.
In sum, the Stipulated Order confers upon the class of Juvenile Parolees important due process rights and other protections, as well as new limitations on the term of incarceration, some of which may not have been obtainable had the matter been litigated through trial.

c. ADA and Effective Communication Accommodations The Stipulated Order’s ADA protections are significant, requiring, among other things,

that Defendants “ensure that Juvenile Parolees with limited English skills, effective

communication needs, and/or Disabilities are provided with accommodations needed to

communicate effectively, including but not limited to language interpreters, sign language

interpreters, assistive listening devices, simplified forms, large print forms, forms translated to

Spanish, and Galileo readers.” Id. Ex. A at 14:26-15:2. Moreover, “[p]rior to serving any

notices upon a Juvenile Parolee and prior to all revocation proceedings, Defendants shall take

reasonable steps to identify and track Juvenile Parolees with Disabilities or effective

communication needs.” Id. Ex. A at 15:14-16.

The Stipulated Order mandates that Defendants “make accommodations for Juvenile

A/72649295.5

10

JOINT MOTION FOR FINAL APPROVAL OF STIPULATED ORDER FOR PERMANENT INJUNCTIVE RELIEF Case No. 2:06-CV-02042-LKK-GGH

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
[240610-2]

Parolees with Disabilities and effective communication needs in order to assist them in preparing for Revocation Proceedings. Such accommodation shall include up to three additional hours of representation by appointed counsel.” Id. Ex. A at 15:3-6. “[A] prompt and effective grievance procedure” shall be developed and implemented by Defendants “for processing any complaints

of denials of requests for accommodations;” all such grievances requesting reasonable

accommodations at a scheduled hearing shall be decided as soon as possible before the hearing,

and the hearing shall not be delayed as a result unless Defendants can show there is good cause.” Id. Ex. A at 16:5-10. Furthermore, the Stipulated Order requires that “[a]ll forms provided to Juvenile Parolees shall be readily available in alternative formats, including, but not limited to, large print, Braille and audio tape. Whenever Juvenile Parolees with effective communication

needs or disabilities are given forms that they cannot understand, they shall be provided a

reasonable accommodation to enable them to understand the forms to the best of their abilities.”

Id. Ex. A at 16:15-20. The Stipulated Order thus ensures the provision of a broad array of

legally required accommodations to class members with physical or mental disabilities or effective communication needs in the parole revocation process.

d. Right to Appeal The Stipulated Order re-affirms the right of Juvenile Parolees to a prompt appeal of a

parole revocation decision, and requires Defendants to promulgate a fair appeals process that

includes, among other elements, “The Juvenile Parolee must be informed at the hearing of

his/her right to appeal the parole revocation decision;” “the appeal will be decided by the

Executive Officer of the Juvenile Parole Board or his or her designee within 10 business Days of receipt of the appeal, and served on the Juvenile Parolee within 5 business Days of the appeal decision;” “if the Executive Officer or his designee decides to grant a new hearing, that hearing must be held within 10 business Days of the issuance of the appeal decision;” and “Juvenile

Parolees have the right to assistance by counsel in preparing an administrative appeal and at any

new hearing granted pursuant to an appeal.” Id. Ex. A at 13:7-26. It is uncertain if such broad

rights of appeal, including the right to counsel on appeal, could have been achieved had the case

been litigated through trial.

A/72649295.5

11

JOINT MOTION FOR FINAL APPROVAL OF STIPULATED ORDER FOR PERMANENT INJUNCTIVE RELIEF Case No. 2:06-CV-02042-LKK-GGH

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
[240610-2]

Finally, pursuant to the terms of the Stipulated Order, “Defendants shall not use any blanket policy of requiring mechanical restraints for all juvenile parolees in parole revocation hearings.” Id. Ex. A at 15:14-16.

e. Unresolved Issue The settlement resolves all the claims in this case. The most significant issue remaining is the scope and details of the monitoring process to confirm and enforce compliance with the Injunction, including the role of Plaintiffs’ counsel in the monitoring process. The parties will attempt to resolve that issue prior to full implementation of the Stipulated Order.

2. The Case Settled After Discovery In addition to the benefits of the proposed settlement, courts consider the status of the litigation at the time of settlement. This case had been aggressively litigated for nearly two years, with over 400 docket entries reflecting Plaintiffs’ vigorous advocacy and Defendants’ thorough defense. As noted above, when the final round of settlement negotiations began, discovery was closed and the parties had undertaken extensive expert and fact discovery. Plaintiffs had already prevailed on their motion for partial summary judgment and their motion for preliminary injunction. Grunfeld Decl. ¶ 5. A second round of motions for summary judgment were pending at the time the Stipulated Order was agreed to by the parties. Id. ¶ 8.

3. There Was No Fraud or Collusion. The requirement that a settlement be fair is designed to protect against collusion among

the parties. In re Mid-Atlantic Toyota Antitrust Litig., 564 F.Supp. 1379, 1383 (D. Md. 1983).

There is usually an initial presumption that a proposed settlement is fair and reasonable when it

was the result of arm’s-length negotiations. See 4 Newberg on Class Actions, § 11.41 at 90 (4th

ed. 2002); In re Austrian & German Bank Holocaust Litig., 80 F. Supp. 2d 164, 173-74

(S.D.N.Y. 2000), aff’d D'Amato v. Deutsche Bank, 236 F.3d 78 (2nd Cir. 2001).

The settlement was the result of arm’s-length negotiations by experienced class action

lawyers. The negotiations occurred over the period from June 13, 2007, when the parties first

met at JAMS, continued regularly during the summer of 2007, and periodically from that time

through and after the Court’s order of January 29, 2008 appointing Chase Riveland as settlement

A/72649295.5

12

JOINT MOTION FOR FINAL APPROVAL OF STIPULATED ORDER FOR PERMANENT INJUNCTIVE RELIEF Case No. 2:06-CV-02042-LKK-GGH

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
[240610-2]

referee. During that time, the parties engaged in multiple conferences and revisions of draft settlement injunctions, all leading up to the June 4, 2008 Stipulated Order. Grunfeld Decl. ¶ 12.
4. Class counsel have extensive experience in prisoner and parolee class action litigation and believe that the settlement is in the best interest of the class.
Plaintiffs’ Counsel — Rosen, Bien & Galvan, Bingham McCutchen, the Youth Law Center and the Prison Law Office — have extensive experience in class action litigation on behalf of prisoners and parolees (as well as many other types of class action lawsuits). Grunfeld Decl., ¶¶ 13-16. Each of these firms has served as lead or lead co-counsel in major cases representing classes of prisoners and parolees or juveniles in actions resulting in systemic injunctive relief and the development of policies and procedures to implement such relief. Grunfeld Decl. ¶ 13. Plaintiffs’ Counsel also have considerable expertise in monitoring and enforcing complex post-judgment remedial policies and procedures concerning the rights of large classes of prisoners and parolees or juveniles. Grunfeld Decl. ¶ 14.
In their work on this and other cases, Plaintiffs’ Counsel have also had extensive contacts with prisoners, parolees, and juveniles. Grunfeld Decl. ¶ 15. Plaintiffs’ Counsel have discussed and corresponded with many parolees (and parole revocation defense attorneys) regarding their experiences in the parole revocation system. Id.
In evaluating the fairness of the proposed settlement, Plaintiffs’ Counsel have also communicated with class members, including the named class representatives, to the extent they were able to locate them. Grunfeld Decl. ¶ 16.
As described more fully in the declaration of Gay Grunfeld, based on the experience of Plaintiffs’ Counsel, their contacts with class members, experts and other professionals in the field, and careful consideration of the objections to the settlement submitted to the Court, Plaintiffs’ Counsel believe the proposed settlement is fair, adequate and reasonable, is in the best interest of the class, and confers significant advantages to the class. Grunfeld Decl. ¶ 16.

A/72649295.5

13

JOINT MOTION FOR FINAL APPROVAL OF STIPULATED ORDER FOR PERMANENT INJUNCTIVE RELIEF Case No. 2:06-CV-02042-LKK-GGH

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
[240610-2]

5. Strength of plaintiffs’ claims and risk, expense, complexity, and likely duration of further litigation
Based on the discovery taken in this case, Plaintiffs believe their claims are very strong and that they would prevail on all issues at trial. The strength of Plaintiffs’ claims is further evidenced by the fact that their first summary judgment motion and motion for preliminary injunction were not only successful, but led the parties into serious settlement discussions which resulted in a proposed settlement that confers significant benefits to the class. Nonetheless, as discussed above, further litigation would have delayed implementation of the due process and ADA protections obtained as a result of this settlement. This is particularly true of the time-add issue, which this Court held may have required the filing of a second lawsuit. In addition, Plaintiffs risked the delay and uncertainty of the appellate process. The benefits to the Class from immediate implementation of the Injunction’s reforms are even more critical due to the fact that class members “age out” of the defendants’ jurisdiction at age 25.

6. Reaction of the class members and others to the proposed settlement
“Courts have taken the position that one indication of the fairness of a settlement is the

lack of or small number of objections.” 4 Newberg on Class Actions § 11.48 (4th ed. 2008); see

also In re Milken and Associates Securities Litigation, 150 F.R.D. 46, 56 (S.D.N.Y.,1993)

(holding the absence of objections from a class of more than 11,750 persons was a “significant

factor” in granting final approval of settlement). Here, Plaintiffs’ counsel have received no

response to the settlement notice from any member of the class objecting to the fairness of the

settlement, nor have there been any third party objections. Grunfeld Decl. ¶ 16. Nor has any

class member sought to intervene and oppose the settlement. In fact, one group of Juvenile

Parolees has written this Court in full support of the settlement. See Letter to Court from Jose M.

Luis dated September 2, 2008 (with signatures from sixteen other Juvenile Parolees agreeing

with the settlement) (Docket No. 423). Others also responded to voice support for the

settlement. (Docket No. 428).

The only correspondence received in response to the class notice that could be considered

A/72649295.5

14

JOINT MOTION FOR FINAL APPROVAL OF STIPULATED ORDER FOR PERMANENT INJUNCTIVE RELIEF Case No. 2:06-CV-02042-LKK-GGH

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
[240610-2]

an objection is based on one particular aspect of the Injunction. Two class members objected that the Stipulated Order's end to time-adds for revoked parolees and the one-year maximum for a revocation term might not apply to them because they were revoked prior to the implementation date. This is an issue in dispute between the parties, and one that Plaintiffs may seek to remedy through the Special Master or the Court. If Plaintiffs’ position prevails, then these issues are moot because the Injunction will apply to these class members. IV. CONCLUSION
The terms of the Stipulated Order plainly meet the standards for finding that the settlement is “fair, reasonable, and adequate.” For the foregoing reasons, the parties respectfully request that their motion be granted and that this Court issue an order granting final approval of the settlement agreement entered into by the parties, and that the Court sign and enter the Stipulated Order.

DATED: September 22, 2008

Respectfully submitted, ROSEN, BIEN & GALVAN, LLP

DATED: September 22, 2008

By: /s/ Gay Crosthwait Grunfeld Gay Crosthwait Grunfeld Attorneys for Plaintiffs
BINGHAM MCCUTCHEN, LLP

DATED: September 22, 2008

By: /s/ Geoffrey T. Holtz Geoffrey T. Holtz
Attorneys for Plaintiffs
YOUTH LAW CENTER

By: /s/ Susan Burrell
Susan Burrell Attorneys for Plaintiffs

A/72649295.5

15

JOINT MOTION FOR FINAL APPROVAL OF STIPULATED ORDER FOR PERMANENT INJUNCTIVE RELIEF Case No. 2:06-CV-02042-LKK-GGH

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
[240610-2]

DATED: September 22, 2008

EDMUND G. BROWN JR, Attorney General of the State of California, DAVID S. CHANEY, Chief Assistant Attorney General, ROCHELLE C. EAST, Senior Assistant Attorney General, WILLIAM KWONG Deputy Attorney General
By: /s/ William Kwong William Kwong
Deputy Attorney General Attorneys for Defendants

A/72649295.5

16

JOINT MOTION FOR FINAL APPROVAL OF STIPULATED ORDER FOR PERMANENT INJUNCTIVE RELIEF Case No. 2:06-CV-02042-LKK-GGH

 
 1 ROSEN, BIEN & GALVAN, LLP
2 MICHAEL W. BIEN (SBN 096891) GAY C. GRUNFELD (SBN 121944)
3 MEGHAN R. LANG (SBN 221156) MARIA V. MORRIS (SBN 223903)
4 SHIRLEY HUEY (SBN 224114) NURA MAZNAVI (SBN 232008)
5 315 Montgomery Street, Tenth Floor San Francisco, California 94104
6 Telephone: (415) 433-6830
7 BINGHAM McCUTCHEN LLP GEOFFREY T. HOLTZ (SBN 191370)
8 KRISTEN A. PALUMBO (SBN 215857) BRIANA LYNN ROSENBAUM (SBN 239977)
9 Three Embarcadero Center San Francisco, CA 94111-4067
10 Telephone: 415.393.2000

YOUTH LAW CENTER SUSAN L. BURRELL (SBN 074204) CAROLE SHAUFFER (SBN 100226) CORENE KENDRICK (SBN 226642) 200 Pine Street, 3rd Floor San Francisco, CA 94104 Telephone: (415) 543-3379
PRISON LAW OFFICE DONALD SPECTER (SBN 83925) SARA NORMAN (SBN 189536 ) 1917 Fifth Street Berkeley, California 94710-1916 Telephone: (510) 280-2621 Facsimile: (510) 280-2704

11 Attorneys for Plaintiffs

12 EDMUND G. BROWN JR. DAVID S. CHANEY
13 ROCHELLE C. EAST WILLIAM C. KWONG (SBN 168010)
14 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102-7004
15 Telephone: (415) 703-5724 Fax: (415) 703-5843
16 Email: William.Kwong@doj.ca.gov

17 Attorneys for Defendants

18

UNITED STATES DISTRICT COURT

19

EASTERN DISTRICT OF CALIFORNIA

20 L.H., A.Z., D.K., D.R., M.N. and R.C., on behalf of
21 themselves and all other similarly situated juvenile parolees in California,

22 Plaintiffs,

23

v.

Case No. 2:06-CV-02042-LKK-GGH
ORDER GRANTING JOINT MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT,

24 ARNOLD SCHWARZENEGGER, Governor, State
25 of California, MATTHEW L. CATE, Secretary (A), California Department of Corrections and
26 Rehabilitation (“CDCR”); DAVID RUNNELLS, Undersecretary, CDCR; BERNARD WARNER,
27 Chief Deputy Secretary of the Division of Juvenile Justice; CAROLINA GARCIA, Director, Division of
28 Juvenile Parole; DENNIS DULAY, Acting Deputy

HEARING

Date:

October 6, 2008

Time:

10:00 a.m.

Courtroom: 4

Judge: The Honorable Lawrence K.

Karlton

A/72656536.3/3008611-0000333556

[PROPOSED] ORDER GRANTING JOINT MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT CASE NO. 2:06-CV-02042-LKK-GGH
P[2D411F81-1c] reated with pdfFactory trial version www.pdffactory.com

1 Director of the Division of Juvenile Parole Operations; MARTIN HOSHINO, Executive
2 Director of the Board of Parole Hearings (“BPH”); JAMES DAVIS, Chair of the BPH; JOYCE
3 ARREDONDO, PAUL CHABOT, JOSEPH COMPTON, SUSAN MELANSON, THOMAS
4 MARTINEZ, ASKIA ABULMAJEED, and CHUCK SUPPLE, Commissioners and Board
5 Representatives, CDCR; DIVISION OF JUVENILE JUSTICE; BOARD OF PAROLE HEARINGS; and
6 the JUVENILE PAROLE BOARD,

7

Defendants.

8

9

Whereas, this Court has presided over the proceedings in the above-captioned

10 action and has reviewed the pleadings, records, and papers on file herein;

11

Whereas, the parties have entered into a Stipulated Order for Permanent

12 Injunctive Relief, which was lodged with the Court on June 13, 2008;

13

Whereas, the Court has reviewed the Stipulated Order for Permanent Injunctive

14 Relief, and has heard from the parties with respect to the proposed settlement of this action;

15

Whereas, the Court has previously found that the proposed settlement falls within

16 the range of possible approval and is sufficiently fair to warrant dissemination of notice to the

17 proposed class members apprising them of the settlement;

18

Whereas, the Court has determined that adequate notice has been provided to the

19 class members regarding the proposed settlement; and

20

Whereas, the Court has conducted a hearing with respect to the fairness and

21 adequacy of the proposed settlement, and good cause appearing therefore, now finds and orders

22 as follows:

23

FINDINGS

24

1. The proposed settlement adequately addresses the needs and rights of class

25 members, improving certain due process protections in the juvenile parole revocation process

26 including the right to counsel in parole revocation and parole extension proceedings, significant

27 adjustments to the nature and timing of parole revocation proceedings in favor of the class,

28 limitations on the period of confinement after a parole revocation, accommodations under the

A/72656536.3/3008611-0000333556

2

[PROPOSED] ORDER GRANTING JOINT MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT CASE NO. 2:06-CV-02042-LKK-GGH
P[2D411F81-1c] reated with pdfFactory trial version www.pdffactory.com

1 Americans with Disabilities Act, effective communication in parole proceedings, and the right to

2 appeal with the assistance of counsel.

3

2. The proposed settlement was entered into after discovery was largely

4 complete and certain dispositive motions had been ruled on by this Court.

5

3. The proposed settlement was the product of arm’s-length, serious,

6 informed and non-collusive negotiations between experienced and knowledgeable counsel who

7 have actively prosecuted and defended this litigation.

8

4. Class counsel have extensive experience in prisoner, parolee, and juvenile

9 class action litigation and believe that the settlement is in the best interest of the class.

10

5. Plaintiffs’ claims are strong, but would have put class members’ interests

11 at risk by prolonging the litigation and exposing them to the uncertainties of further litigation.

12

6. No class member objected to the proposed settlement and, in fact, several

13 class members wrote this Court in support of the settlement.

14

7. Accordingly, the Court finds that the proposed settlement is fair, adequate

15 and reasonable.

16

GOOD CAUSE APPEARING THEREFORE, IT IS HEREBY ORDERED:

17

8. The Stipulated Order for Permanent Injunctive Relief is granted final

18 approval and incorporated herein by this reference, and has the full force and effect of an order

19 of the Court. Pursuant to the terms of the Stipulated Order for Permanent Injunctive Relief, this

20 Court shall retain jurisdiction to enforce the terms of the Injunction and shall have the power to

21 enforce the terms of the Injunction through specific performance and all other remedies

22 permitted by law or equity.

23

IT IS SO ORDERED.

24

25 DATED: October 7, 2008 26

27

28

A/72656536.3/3008611-0000333556

3

[PROPOSED] ORDER GRANTING JOINT MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT CASE NO. 2:06-CV-02042-LKK-GGH
P[2D411F81-1c] reated with pdfFactory trial version www.pdffactory.com

 
 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

L.H, et al., Plaintiffs,
vs. ARNOLD SCHWARZENEGGER, et al.,
Defendants. _____________________________________/

NO.CIV.S-06-2042 LKK/GGH

FIRST REPORT OF THE SPECIAL MASTER ON THE STATUS OF
CONDITIONS OF THE STIPULATED ORDER
Background The Plaintiffs in this case filed their Complaint with the Court on September 13, 2006. The Court certified this case as a class action by Order dated February 28, 2007. The Defendants are state agencies and state officials responsible for the policies, procedures, and practices by which California conducts juvenile parole revocation proceedings, to include: the Board of Parole Hearings, the Division of Juvenile Justice, the Juvenile Parole Board, and the California Department of Corrections and Rehabilitation. On September 19, 2007, the Court granted partial summary judgment in favor of Plaintiffs, holding that California's juvenile parole revocation system, by failing to provide a timely probable cause hearing, violated the due process rights of the Plaintiff
1 PDF created with pdfFactory trial version www.pdffactory.com

class as they were described in Morrissey v. Brewer. On January 29, 2008, the Court held that Defendants' failure to appoint counsel for all juvenile parolees is violative of the due process rights of the Plaintiff class, according to precedent set in Gagnon v. Scarpelli. In the same order, the Court also found that Defendants' policies and practices violated the Americans with Disabilities Act (ADA) and the Rehabilitation Act. The Court ordered the Defendants to
(1) begin appointing counsel to represent juvenile parolees at parole revocation hearings no later than February 15, 2008, and to provide that counsel with access to confidential contact space and the necessary files sufficiently in advance of the hearing to allow adequate preparation,
(2) allow parolees to obtain counsel of their own choosing, who shall be able to represent clients under the same terms as appointed counsel and shall be notified when a hold is placed on their clients
(3) ensure effective communication and provide necessary accommodations, and (4) develop sufficiently specific policies and procedures to ensure continuous
compliance with all of the requirements of the American with Disabilities Act during revocation proceedings.
Chase Riveland and Virginia Morrison were appointed as Special Master and Deputy Special Master, respectively, on May 22, 2008. The parties, on June 13, 2008, submitted a Stipulated Motion for Preliminary Approval of Class Settlement. The Court granted the motion on June 17, 2008 and approved a Stipulation and Order for Permanent Injunctive Relief on October 7, 2008 (hereafter “Stipulated Injunction”).
2 PDF created with pdfFactory trial version www.pdffactory.com

Special Master Activities The Special Master’s team spent the early months of this term becoming acquainted with the nuances and differences of the juvenile parole system from the adult parole system. Although the Special Master and Deputy Special Master are intimately acquainted with the adult parole system due to their concurrent service as Special Master and Deputy Special Master in Valdivia v. Schwarzenegger, there are differences between the adult and juvenile parole systems, not the least of which is the much lower number of revocations in the juvenile system. The team observed hearings in two locations, the Special Master listened to tapes of earlier hearings, he visited a juvenile parole office, and the team was briefed on the information systems and policies and procedures. The team conducted meet and confer sessions on policy issues, attended task force meetings, and participated in field file review sessions. Defendants initiated a monthly information-sharing meeting with Plaintiffs and the Special Master. This is an excellent mechanism for sharing appropriate information and working collaboratively toward implementing the remedy.
Parties’ Activities to Date In this period – where some court-ordered requirements are in effect, while full implementation is not yet due – the parties have concentrated on negotiating policies, rolling out certain components, designing the full system, and preparing staff to undertake the anticipated changes.
3 PDF created with pdfFactory trial version www.pdffactory.com

Most assessments of compliance would be premature. Defendants have met timelines specified in the orders preceding the Stipulated Injunction, though Plaintiffs advocate that qualitative improvements are needed. The parties disagree concerning the timing of obligations arising from the Stipulated Injunction. Plaintiffs argue that systems should be in place and work toward improving timeliness should be underway in order to meet the full implementation requirement that is effective in December; Defendants assert that no injunction timeframes are binding until that full implementation date.1
In this report, the Mastership takes the approach of measuring current practice in relation to the timeframes and other requirements that will be fully in place in December. This serves as a baseline for the Court and the parties to observe progress. Assessments of compliance generally are not advanced.
Plaintiffs’ counsel and Defendants have, since the filing of the Stipulated Injunction, aggressively “met and conferred” regarding policies, procedures, and forms. Numerous drafts have been developed by interdivisional workgroups with reviews and detailed commentary by Plaintiffs’ counsel. All agree that it has been a collaborative, productive effort.
The Defendants appointed a knowledgeable project manager to direct all facets of meeting the requirements of the various court orders. The project manager organized a task force composed of representatives of all affected parties in the California Department of Corrections and Rehabilitation and external entities; it has met regularly since February 2008. The project manager also convened several groups to develop the various required policies and procedures. These groups were formed prior to the parties agreeing on the Stipulated Injunction and they continue on to date. This interdivisional
4 PDF created with pdfFactory trial version www.pdffactory.com

work serves very well to generate effective practices and avoid many of the pitfalls seen in the implementation of other lawsuits’ remedies.
Effective oversight is demonstrated in other practices, as well. Defendants hold a monthly telephone conference with supervising parole agents and hearing officers to troubleshoot processes, help interpret the mandates, and answer implementation questions.2 Defendants and representatives of the administrator of the attorney panel, California Parole Advocacy Project (“CalPAP”), meet weekly to discuss open cases and address system or case-specific problems. Staff review reports of all cases, which CalPAP has provided monthly since May. The project manager provides guidance and supervision to field staff in addition to that of their supervisors.
Defendants have initiated staffing for implementing the Stipulated Injunction, hiring an office manager; seven of nine Board Coordinating Parole Agents, who are responsible for serving notice and coordinating hearings; and three of four hearing officers. The five commissioners also hold hearings. Hiring has included a small number of analysts and clerical staff, with plans for a few more. During the state budget impasse, Defendants say they obtained some exemptions to the prohibition on employing retired annuitants, assisting their forward progress on implementation.
Defendants reportedly have submitted a budget change proposal for staffing for information systems, transportation, and other staff to carry out revocation proceedings. Hiring for all categories – established and proposed – is affected by the state budget and related hiring freeze. At best, the divisions must seek exemptions to the freeze. This process, in addition to the lengthy routine procedures, encumbers the possibility of hiring and training staff in time to initiate LH processes by the Court-ordered December 2008
5 PDF created with pdfFactory trial version www.pdffactory.com

deadline. At worst, of course, those exemptions could be denied, rendering December compliance impossible.
Until new procedures are implemented, it is difficult to determine the appropriate level of staffing. While the volume of proceedings is fairly low, there is a critical mass of staff necessary for administering a system, and proceedings are spread across more than 100 institutions statewide. The sufficiency of allocated positions also merits close attention as this new system rolls out.
Prior to the issuance of the Stipulated Injunction, the Defendants complied with several activities previously directed by the Court and agreed upon between the parties. Each of the following requirements have been accomplished:
• Appointment of attorneys in all revocation cases • Submission, timely, of ADA policies and procedures to the Court;
however, the Plaintiffs strongly dispute that the submission complied with the provision to be “sufficiently specific,” including noting that some steps in the revocation process were not included • Implementation of probable cause hearings • Ceased the use of temporary detentions and requested the rescission of the regulation regarding temporary detentions • Halted the practice of waivers and admissions without counsel • Facilitated provision of accommodations at Division of Juvenile Justice and county jail facilities • Posted and distributed notice of the material terms of the settlement3
Preparations for full implementation include: • Negotiating and instituting interim procedures to identify and provide reasonable accommodations for those with disabilities or effective communication needs
6 PDF created with pdfFactory trial version www.pdffactory.com

• Providing revocation hearings, albeit not timely • Hiring additional staff at the Juvenile Parole Board • Extensive training in due process, ADA requirements, and effective
communication for Division of Juvenile Parole Operations and Juvenile Parole Board staff • Continuing to modify or develop various information systems that will assist in the tracking of revocation process activities; they will also provide information for the various decision-makers. This includes contracting for the information system design specified in the Stipulated Injunction, and initial steps in software design and hardware acquisition.
Plaintiffs’ counsel object to the amount of information they have received as to the success, or lack thereof, of the actions taken by the Defendants to date. As the issue of monitoring remains in dispute and document production has not begun, they have limited access to determine what is actually occurring. On the other hand, there have been monthly all-parties meetings designed to share information, and Plaintiffs have sometimes observed Defendants’ task force meetings. Plaintiffs are troubled by the delays in appointment of attorneys and the holding of hearings; missing policies, procedures, and forms; and the fact that modification or rescission of some regulations has not yet been initiated. With one substantial timeline already missed, the absence of desired information and first-hand observation fuels Plaintiffs’ apprehension that the remedy will not be implemented in December and may become further and further extended.
Stipulated Injunction Expectations Parties agreed that within 90 days of the parties signing the Stipulated Injunction, and no later than September 15, 2008, the Defendants were to develop sufficiently
7 PDF created with pdfFactory trial version www.pdffactory.com

specific draft policies, procedures, and plans to: • ensure that revocation proceedings are in continuous compliance with all of the requirements of the Constitution and applicable statutes, • address a method for accurately tracking the timeliness of hearings and other steps in the parole revocation process, • include the timely provision of accommodations for juvenile parolees’ disabilities and effective communication needs, • cover not in custody hearings, dual commitments, and parole exit meetings; and • address such disputed issues as telephonic probable cause hearings, circumstances constituting good cause for delayed hearings, and remedies for untimely hearings.
The parties agreed that the Defendants are to submit drafts of the policies and procedures to the Plaintiffs and to the Special Master prior to implementation, no later than September 4, 2008, and to meet and confer at least one time within the subsequent 14 business days.
Defendants must submit all policies and procedures to the Court by November 4, 2008, and implement them within 180 days after the signing of the Stipulated Injunction, and no later than December 15, 2008.
Additionally, Defendants are to incorporate the Juvenile Parole Board revocation proceedings business process requirements into the existing Revocation Scheduling and Tracking System within six months of the signing of the Stipulated Injunction.
Defendants were required to post notice of the material terms of the settlement on their website and in various places in facilities, and to provide that notice to parolees.
Defendants must also undertake a review of existing regulations, rules, and procedures to ensure that they are consistent with the Stipulated Injunction.
8 PDF created with pdfFactory trial version www.pdffactory.com

There has been good progress on the above-described requirements. Policies: Defendants drafted a plethora of policies and procedures and submitted them to Plaintiffs beginning in early August; since mid-August, the parties have frequently met and conferred to negotiate and refine those policies.4 Defendants’ interdivision workgroups also met often, responsive to the concerns raised in negotiations. In some weeks, there were policy meetings daily. Much of the effort has been directed to generating greater detail and specificity, as well as negotiating substantive issues. While most policies are under negotiation, Plaintiffs also note that there are some provisions of the Stipulated Injunction not yet captured in policies, and which must be initiated.5 They also describe several policies not yet describing how they will be applied in county jails and CDCR adult institutions; these additions will be important. While it appears that the policies and procedures will not be completed according to all indicated timelines, the parties are taking the time necessary to generate documents to meaningfully guide practice, and they continue to make good progress. The parties are negotiating extending the time to policy completion and implementation -- conditioned on timely implementation of 19 key features of the injunction -- and the Special Master concurs.6 The particular policies specified in the Stipulated Injunction -- definitions of good cause for delayed hearings, remedies for untimely hearings, dual commitments, parole exit meetings, and not in custody hearings – are being negotiated and remain to be resolved. The possibility of telephonic probable cause hearings has not yet been taken up. The parties report their greatest policy disagreements center on the definition of good cause, the degree and scope of ADA review, the timing of applying determinate
9 PDF created with pdfFactory trial version www.pdffactory.com

sentencing, provisions concerning severely mentally ill parolees, and mechanical restraints.
Tracking and accommodations:7 At the current time, CalPAP maintains data concerning the timeliness of some components of the revocation process. CalPAP has previously demonstrated its dedication to, and facility in, data management, and this method should serve well. Defendants have also taken initial steps for the longer-term strategy for the tracking specified in the Stipulated Injunction.8 The systems will need to track cases handled by public defenders and private attorneys, as well. Work is also underway to begin to identify and provide accommodations for juvenile parolees’ disabilities and effective communication needs during the revocation process.9
Notices:10 The parties collaborated on producing class notices. In compliance with this Court’s Order, Defendants posted notice of the settlement terms on their website, and reportedly in the specified locations in facilities. They mailed audio, large print, and standard print versions to parole offices, Juvenile Justice facilities, CDCR adult facilities and reception centers, county jails, group homes, and juvenile halls with instructions to post them and distribute them to parolees; copies were also mailed to parolees. Plaintiffs object that there was no posting in Defendants’ Ombudsman’s office, as required in the Stipulated Injunction; Defendants indicate that that office was provided a copy of the injunction but is not open to the public and would not be visited by parolees. Although it was not comprehensive, Defendants report that they verified the postings by calling all Juvenile Justice facilities and asking staff to check when onsite at other facilities. A number of adult and juvenile facilities called for more materials, also suggesting that these were being distributed.
10 PDF created with pdfFactory trial version www.pdffactory.com

Regulations: Defendants indicate they have undertaken the mandated review of regulations and have identified nearly 100 requiring change.11 They say they will undertake the revision process once policies and procedures are finalized.12
Stipulated Order Requirements The specific aspects of the remedy are outlined below. As is appropriate at this stage, definitions, logistics, and other aspects remain in development for some requirements. Others have been put in place on an interim basis; still others are partially implemented with the intention of strengthening them through experience and guidance by the expected implementation date. At this point, the Special Master would expect to see emphasis on sound design and initiating some of the revocation steps. Defendants have met these expectations well. As with all new processes, in time, staff will gain facility with all the complexities of hearing process, meeting timeframes, and handling special circumstances. To the extent that some requirements can be measured at this time, this will serve as a baseline from which the Court and the parties can later determine progress toward compliance. Parole Agent and Supervising Parole Agent conference within two business days (¶ 27): Information on this requirement has not come to the Special Master’s attention.
Notice of charges and rights within three business days (¶ 28): Information on this requirement has not come to the Special Master’s attention.
11 PDF created with pdfFactory trial version www.pdffactory.com

Non-acceptance of written admissions to a violation of parole, or waivers of hearing rights or the right to counsel, made prior to the juvenile parolee meeting with counsel (¶ 17, 31): Defendants report that they issued instruction on this point to field staff effective before the Stipulated Injunction was signed, in April 2008. They say that service forms were modified to eliminate admissions solicitations and waivers, and coordinating parole agents were instructed to keep confidential the contents of contacts when serving notice and rights.13 The parties have not yet undertaken a review of whether the practice has completely ceased. No reports of problematic waivers have been presented to the Special Master.
Requirements concerning attorney representation Provision of counsel during revocation proceedings (¶ 15): Defendants report that
attorneys have consistently been appointed for all parolees taken into custody on a new parole hold since February 15, 2008.14 There is no system to detect whether any appointments are overlooked.15 Youth reportedly are allowed to waive counsel, but advisory counsel remains in the room.16
CalPAP was retained to provide representation as part of a pre-existing contract in the last fiscal year. Defendants accomplished in an extraordinarily short time an independent contract to continue services through February 2009.17
Timely appointment of counsel (¶ 16): All acknowledge that practice does not yet approach timeliness standards. Significant change in timeliness will require a structural change in practices, as parole agents currently are permitted 15 days to write a violation report – a critical component for preparing a defense. This timing, of course, exceeds the
12 PDF created with pdfFactory trial version www.pdffactory.com

Stipulated Injunction’s timeframes for attorney appointment. New requirements for producing violation reports presumably will be included in the in-progress policies and procedures and taken through necessary processes with the parole agents’ bargaining unit.
Analysis of recent CalPAP data yields the following information:18 • The range of time to appointment has been 7 days to 4½ months • The most typical times to appointment were 2 to 4 weeks.19 This is unsurprising, in that the violation report is commonly produced in 2 weeks. • The number of cases with counsel appointed in less than two weeks improved during the Round.20 • Among the cases with longest times to appointment, the numbers held steady during the period.21 • There was a significant increase in attorney appointments in August and September.22
CalPAP notes that its attorneys are appointed with sufficient time to prepare for probable cause hearings, and a review of the data suggests the same.23
At the time of attorney appointment, provision of date, time, and location of the hearing (¶ 16): Defendants provide this information to CalPAP, though this is not synchronous with the attorney appointment. CalPAP reports that the average time difference between these two acts decreased in the most recent month.24
At the time of attorney appointment, provision of a copy of all the evidence on which the State intends to rely or which may be exculpatory; evidence not provided with at least two days’ notice shall be excluded unless the state shows good cause (¶ 16, 19): CalPAP interviewed some of its attorneys, whose experience was that all such evidence was being provided.25 On the other hand, the Special Master’s observations at one
13 PDF created with pdfFactory trial version www.pdffactory.com

hearing location provided a very small snapshot of different practice. In two of four probable cause hearings, the hearing officer found she had evidence that had not been provided to the attorney. She gave the attorney time to review and discuss it with her and with the parolee in privacy. She did not exclude the evidence; the parties disagree about whether evidence exclusion is required at probable cause hearings. A broader examination of the scope of this problem has not been conducted.26
At the time of attorney appointment, provision of relevant educational, mental health and disability identification and source documents (¶ 16): The parties have concentrated heavily on this topic, attempting to define which documents and electronic files, and which information contained in them, are relevant and necessary for reasonable accommodations and attorney representation. Much of this information is maintained in documents and files in which there is a volume of unrelated material. Whether working with a large volume or synthesizing it, this creates questions of utility and burden for both the State and the attorneys. The parties, CalPAP, and the Special Master’s team have closely reviewed an existing database and field files with these issues in mind, and negotiations are ongoing.
CalPAP indicates that the materials it receives commonly include some information on mental health, education, and/or disability, but there is significant variation in packet contents and utility of the information.27
Right to be represented by counsel of choice; process for timely notifying of the counsel of record of the imposition of a parole hold (¶ 18): The parties convened representatives of public defenders’ offices throughout the state to design procedures for notifying the latter counsel, and private attorneys, when a parole hold has been placed on
14 PDF created with pdfFactory trial version www.pdffactory.com

a client. That work group reportedly met several times and has agreed to procedures.28 Defendants also reportedly revised the request for attorney form to reflect this option.
Attorney will be informed of Return to Custody Assessment by the 10th business day after the hold (¶ 30): This element reportedly has not been instituted yet.29
Counsel to meet with client at least 24 hours prior to the probable cause hearing (¶ 16): CalPAP administration believes that its attorneys receive information in sufficient time and that attorneys are consistently meeting with parolees at least a day in advance of these hearings.30 Data support these assertions, as CalPAP had the revocation packet and notice documents three days or more ahead of the probable cause hearing with extremely rare exceptions.31
Adequate time for representation; reasonable access to clients and files; confidential phone calls and space in which to meet; observing staff cannot participate in proceedings (¶ 20, 23): Defendants indicate that routine attorney-client visiting spaces are used at county jails, as well as a room at each Division of Juvenile Justice facility without staff present during the visit.32 CalPAP reports reasonable access to clients and files.33 Plaintiffs are concerned that the policies under discussion for attorney access – based in those in use under the Farrell remedy34 – may be insufficiently detailed and implemented to date.35 Information on the other aspects of this set of requirements has not come to the Special Master’s attention.
Standards, guidelines, and training for effective assistance of state-appointed counsel (¶ 21): The parties have been negotiating these standards and guidelines and report that they are making progress.
15 PDF created with pdfFactory trial version www.pdffactory.com

Compensation for preparation, hearings, and appeals (¶ 24): It is the Special Master’s understanding that compensation has been provided for as required.36
Return to custody assessment within nine business days (¶ 29): It is the Special Master’s understanding that this requirement is not yet in place. 37
Probable cause hearing requirements Expedited probable cause hearings (¶ 26): Information on this requirement has not come to the Special Master’s attention. Probable cause hearings within 13 business days after the hold is placed, including written bases for findings (¶ 32, 40): 38 There have been substantial gains in implementing this requirement. Defendants report initiating hearings on April 25, 2008 and holding hearings for all parolees with newly placed holds since that time. In addition, staff indicate they independently acted to review all cases in custody and provide attorneys and a probable cause hearing for all parolees in “pending revocation” status, regardless of the date they were taken into custody. Some of these youths had been in custody for lengthy periods. Defendants say that these hearings are nearly complete. Hearing officer training reportedly included elements of violations, probable cause standards, and other aspects of due process. Defendants say hearing officers are asked to assess probable cause on each count and, separately, to determine whether retention in custody is warranted.39 Unlike previous practice, all allegations of technical violations and new crimes are heard. As to facilities, staff say they have surveyed all internal facilities and contract jails
16 PDF created with pdfFactory trial version www.pdffactory.com

concerning space, and negotiated a dedicated room in each Division of Juvenile Justice facility and access to the rooms at CDCR institutions and county jails where adult revocation hearings are held. Staff also report having purchased computers for use by coordinating parole agents and hearing officers; to the Special Master’s knowledge, the equipment is not yet in use.
. Defendants indicate that parolees are receiving written findings when the hearings are conducted at Division of Juvenile Justice facilities, and staff are working on systems to provide those documents when hearings occur at other facilities.40
Timeliness will remain one of the biggest challenges. CalPAP keeps a variety of data, including the timeliness of hearings, which provides a baseline from which to measure. To date, only five hearings met the standard to be fully implemented in December and there were not many that came close.41 Times to hearing were distributed broadly over the range of 11 business days to almost 6½ months.42 No patterns of improvement were evident yet.43
As an interim procedure, all cases where probable cause is found must continue on to revocation hearing, unless the parole agent recommends that the parolee continue on parole and the hearing officer affirms that.44 CalPAP data show that such releases are increasing; in the most recent three months, 28% of probable cause hearings have resulted in a continue on parole decision or dismissal.45
The Special Master’s early observation of probable cause hearings revealed several things. At the first institution visited, in all instances, the parolees had been in custody for very long period of time—as long as seven months. All were represented by appointed CalPAP attorneys. Most had revocation initiated due to technical violations of
17 PDF created with pdfFactory trial version www.pdffactory.com

parole conditions. All were in their early twenties. The hearing examiners had experienced rudimentary training but indicated a desire for more. They did specifically find probable cause.
At the second institution visited, the Special Master’s team observed one hearing officer conduct four probable cause hearings. Commonly, the parolees had been in custody one month before the hearing. The hearings were carried out with fairly consistent practices. The hearing officer confirmed that the parolee received and read his documents and she conducted an interactive ADA assessment, emphasizing education and cognitive function. She generally asked the parolees if they felt she was fair and impartial, and oriented them to the probable cause standard and what to expect in the hearing, taking care to use analogies from familiar contexts. She asked counsel if he had met with his client and whether he stipulated that ADA, effective communication, and due process rights had been met so far.
She read the allegations and their bases, and she took pleas. Admitting the charges was very common. The parolees were given time to read documents and to offer evidence, which the hearing officer considered. In two cases, the hearing officer noted there was evidence the attorney was unlikely to have received, and she called it to his attention and gave him time to review and discuss it with her and with the parolee in privacy. The hearing officer explicitly found probable cause on contested allegations but did not where there was an admission. She and the attorney sometimes discussed the merits of conducting a “not in custody” revocation hearing. She discussed the 50-mile limitation when scheduling hearings. A record was made on handwritten forms.
18 PDF created with pdfFactory trial version www.pdffactory.com

The Special Master also interviewed juvenile parole staff at one location. They generally were positive regarding the conditions of the Stipulated Injunction. They did express some concern about the required timeframes that affect them, particularly around their ability to receive arrest reports from various law enforcement agencies. They indicated that there are considerably more resources in the Division of Juvenile Justice and the community for juvenile parolees; therefore, they often continue a person on juvenile parole even when the youth has a concurrent adult conviction, resulting in dual supervision.
Definition of presumed prejudice (¶ 32): Information as to this requirement did not come to the Special Master’s attention.
Mechanical restraints at hearings (¶ 46): The Stipulated Injunction prohibits Defendants from using any policy requiring
mechanical restraints for all parolees in revocation hearings. It requires Defendants to develop related policies, procedures, and training that are consistent with the ADA, the Rehabilitation Act, the due process clause, and Title 15 California Code of Regulations section 4034.4.
While present policy gives the hearing officer the authority to order restraints based on the parolee’s “…history and propensity for violence,” in practice, the Defendants have historically shackled juvenile parolees in mechanical restraints at hearings, this being done at the direction of Juvenile Parole Board policy. In negotiating the required policies, the parties disagree as to the criteria for use of restraints.
19 PDF created with pdfFactory trial version www.pdffactory.com

Defendants also assert that they must defer to the policies of local jurisdictions, even if this calls for uniform restraint application;46 Plaintiffs’ counsel reject this deference.47
Although the issue remains in dispute, the parties continue to work toward a compromise.
Requirements related to revocation hearings: Final revocation hearing on or before 35 calendar days after the parole hold is placed (¶ 33): Defendants are providing revocation hearings, but timeliness has not yet been addressed. CalPAP data shows that, of the 181 revocation hearings in a four-month period, only 11 met the standard to be fully implemented in December.48 A similar number missed the standard by a week or less.49 The range of times to hearing was 30 days to 6½ months.50 Defendants and CalPAP also have been monitoring the times from probable cause hearing to revocation hearing; a review indicates that practice was quite variable and did not show a consistent trend over time.51 Improvements were not yet evident.52 The number of attorney appointments grew during the Round, for a total of 259 hearings concluded in the most recent four-month period.53 As to dispositions: • By far, the most frequent disposition was to continue the youth on parole; this
occurred in nearly half of the cases either at probable cause hearing or revocation hearing.54 Plaintiffs are troubled by this, reading it as an indication that the detentions may not have been necessary. • Another 11 cases were dismissed55 and a handful received credit for time served. • Two youths were sent to a treatment program. • For those returned to custody, terms covered nearly the full range up to a year, but the most typical times were 6 and 9 months.56
20 PDF created with pdfFactory trial version www.pdffactory.com

• Where previous average terms, which included parolees committed on lower level crimes, were reportedly 5.5 months,57 the average for this recent group was 7.7 months.
The parties continue to negotiate a number of aspects of the conduct of these hearings. Among them, Defendants propose to permit parolees to waive timing requirements subject to Defendants’ option to deny the request for good cause; Plaintiffs object and negotiations are ongoing.
Parole revocation hearings to be held within a 50-mile radius of the alleged violation (¶ 36): CalPAP provided data indicating that, in 160 revocation hearings examined, 96% were compliant with the 50-mile requirement.58 On learning this, shortly before the writing of this report, Defendants offered to investigate the reasons. Another eight cases were heard more than 50 miles from the alleged conduct after the parolee waived this right.
When working with juvenile parolees, there are complications in honoring this requirement. Where parolees must be transported to a county jail for a hearing within this limit, the majority of county jails will not permit those in juvenile custody to be housed onsite short-term.59 A small of number of jails currently will not allow juvenile proceedings to take place there. Defendants continue to negotiate these points, as well as negotiating with CDCR adult institutions for the transport of juvenile parolees housed in adult facilities under dual commitments.
Confrontation rights (¶ 37): In February 2008, the Division of Juvenile Justice trained its hearing officers and Board Coordinating Parole Agents concerning the conditional right to confront and cross-examine witnesses as articulated in United States v. Comito and related case law. Defendants represent that the training was consistent
21 PDF created with pdfFactory trial version www.pdffactory.com

with this Court’s interpretation of those precedents later issued in Valdivia v. Schwarzenegger on March 25, 2008.60
Neither the Special Master nor the parties have been present for revocation hearings, subsequent to the training, to observe the application of these principles.
During negotiations, disagreements have arisen concerning whether these rights apply, or the extent of limitations, in the dispositional phase of a hearing and in revocation extension hearings.61
Tape recordings, including new hearing if inaudible (¶ 41, 42): Defendants report that they have purchased digital audio recording equipment and are working through difficulties related to storage.62 To the Special Master’s knowledge, the equipment is not yet in use. Plaintiffs note that, if hearings are stored on compact discs, a means of playing them will need to be available.
The Special Master does not have information concerning the following four requirements related to revocation hearings:
Evidence on the same terms as the state (¶ 33) Supplemental charges (¶ 34) Definition of good cause for delay, remedy for timeframe violation (¶ 33) Not in custody hearings within 60 days after service and with all due process and ADA protections (¶ 45)
Requirements related to disposition Limitation of return to custody time to one year except for willful program failure or serious in-custody misconduct (¶ 35): The parties have reached agreement on the definitions of willful program failure and serious in-custody misconduct. Other aspects of
22 PDF created with pdfFactory trial version www.pdffactory.com

the policy are proceeding through negotiation.63 Development of a matrix of ranges of revocation terms for specific violations
(¶ 35): Defendants report developing a risk assessment instrument, as well as considering objective parole revocation disposition standards consistent with the system’s treatment and training objectives.64 Plaintiffs are concerned that the revocation matrix under discussion allows for a lengthier revocation term than is available in adult revocations, and does not appear to allow hearing officers to consider less restrictive alternatives to revocation.65
Release no later than three days if time has been already served (¶ 38): Information concerning this requirement did not come to the Special Master’s attention.
Requirements related to ADA and effective communication These requirements were reflected both in this Court’s January 29, 2008 Order and in the Stipulated Injunction. Defendants were required to submit draft policies and procedures to the Court by March 15, 2008, and to fully implement the ADA and effective communication components of the Stipulated Injunction by September 2, 2008.
Although Defendants timely submitted draft policies and procedures, Plaintiffs considered them far from sufficiently specific and the parties have continued to negotiate them. The parties have exchanged multiple drafts and met and conferred on at least five occasions.66 Both report continuing progress.
Defendants are not in compliance with the full implementation requirement. They have, however, promulgated and trained on interim procedures and continue to work in good faith toward full implementation.
23 PDF created with pdfFactory trial version www.pdffactory.com

ADA and effective communications accommodation (¶ 23, 48, 50, 51, 53): During September and October 2008, Defendants report, staff were trained on this topic.67 Parole agents and their supervisors were given detailed training on the requirements of the ADA, cognitive disabilities, learning disabilities, physical disabilities, methods of effective communication, and documents in the field file containing pertinent information. Board Coordinating Parole Agents learned about the interim procedures and their responsibilities. Hearing officers learned about the ADA, including practicing interactive ADA reviews, in April 2008. Plaintiffs observed training and found it beneficial. They also have reservations about the use of an interim policy, in that expanding responsibilities and revising habits grounded in interim procedure training can be more difficult.68
Interim procedures require each of these staff to provide reasonable accommodations.69 Defendants report that all coordinating parole agents carry magnifying sheets and assistive hearing devices, and this equipment is also available through parole agents.70 These do not include all devices listed in the Stipulated Injunction; Defendants assert that Braille has largely been replaced by other technologies, suggesting that there is little value in this method, and the parties have discussed looking into alternatives. Defendants have not purchased Galileo readers.
For speakers of languages other than English, Defendants have contracted for sign language interpreters and telephone translation service.71 They are encountering implementation barriers concerning the equipment and its functionality at many sites; they indicate they are working to address these. In the meantime, they say they use speaker phones to access the service, or in-person interpreters.72
24 PDF created with pdfFactory trial version www.pdffactory.com

In recognition of the disabilities and effective communication needs that can arise out of severe mental illness, Defendants have drafted policies and procedures appropriately aimed at suspending revocation proceedings for youths whose mental state renders them unable to participate.73 Those procedures are designed to send the youths to treatment and to monitor their ability to return to hearings. The parties are negotiating the terms of this policy.
A related draft policy is much more controversial. Defendants propose to return some youths to custody for the purpose of treatment, where the youths are a danger to themselves or others, or gravely disabled; have engaged in conduct that indicates they are likely to commit a parole violation; and adequate treatment resources are not available to them in the community.
Defendants cite deeply held concerns for this population’s welfare, as well as case law they argue supports this practice; they have built in protections meant to ensure treatment and expedite releases to the community once the parolees are stabilized. Plaintiffs advance similar concerns for these youths, and argue that the proposed practice is unconstitutional, that correctional institutions cannot be as appropriate as a treatment facility, and that experience in Farrell indicates that Division of Juvenile Justice facilities cannot be relied upon to provide quality care.
All acknowledge that these are important and complex issues that must be addressed. The Mastership anticipates continued involvement to reach workable solutions.
Informing counsel of the nature of the parolee’s difficulty at the time of appointment, extra time for representation (¶ 22, 49): Defendants have designed a form
25 PDF created with pdfFactory trial version www.pdffactory.com

titled Youth Status Form, which alerts counsel, and others reviewing a file, to the fact of a physical disability, mental health issue, or effective communication need. It employs check boxes that indicate the existence of a concern without detail as to types of limitations or accommodations needed. Plaintiffs object both to its brevity and the care with which some forms were completed.74 Defendants undertook to review the field files of all youths currently in custody in order to complete and add this form. That effort has been suspended for the parties to come to agreement concerning this form, what should be included, and the process surrounding it. Defendants indicate that the review will be repeated for all files after agreement is reached.75 In the meantime, the parties disagree that counsel is informed about the nature of the parolee’s difficulty.
Attorneys are reportedly compensated for an additional three hours with clients, regardless of whether there is an identified disability, due to the expected prevalence of learning disabilities, communication difficulties, and lack of maturity.76 This additional step shows good will in going beyond the Court’s requirements.
Identification and tracking (¶ 52): The picture concerning identification and tracking is not complete, but the following describes some components.
Defendants are using interim procedures in an effort to identify disabilities and effective communication needs.77 Before serving parolees with the notice of rights and allegations, the Board Coordinating Parole Agents are to call the agents of record, asking them to review the field file to identify these needs. A brief, colored form has been added to files to call the agents’ attention to a likely disability.78 Coordinating parole agents are to assess the parolee during service and to document needs, identified from any source, on a request for accommodation. Plaintiffs note that, two to four weeks after this
26 PDF created with pdfFactory trial version www.pdffactory.com

procedure was instituted, parole agents at each of four trainings said some coordinating parole agents were not following these procedures.79
Upon a youth’s release to parole, the Supervising Parole Agent is to review the field file to identify these needs.80 Plaintiffs describe practices that could contribute to breakdowns in identifying disabilities.81 They assert that there often are delays in forwarding files to agents of record when parolees are released on parole, that some files are not sent, and that others lack medical history supporting documents. In these circumstances, if an agent is unaware of a parolee’s disability or effective communication need, he could create a placement plan that does not take those needs into account.
Parole agents are also to conduct an ADA and effective communication review of the field file and Field Information System when writing a violation report, should a youth be suspected of violating parole, and to document any such findings and accommodations in that report.82
Numerous reports, plans, tests, screenings, and evaluations contain disability and effective communication needs information and are present or summarized in parolees’ field files and/or the Ward Information Network.83 These sources can contribute to identification and tracking. However, limitations in staff access to those sources, the relatively recent nature of data inclusion, inconsistency in filing, sheer volume, and the apparent absence of routine and consistent review practices, combine to limit their effectiveness and reliability as a system of identification.
Defendants describe plans to make identification and communication of these needs a routine feature of the revocation process steps – plans modeled on those in use in
27 PDF created with pdfFactory trial version www.pdffactory.com

the adult revocation process -- once the juvenile system’s version of the Revocation Scheduling and Tracking System is operational.
In the meantime, Defendants say, they intend, by December 15, 2008, to employ interim, centralized tracking of whether accommodations were needed and provided during revocation proceedings.84 They indicate that a request for accommodation is routinely included when serving notice of rights and allegations, and that staff note on the form whether an accommodation was provided. Headquarters staff reportedly will review all revocation packets and record in a spreadsheet these requests and whether they were filled.
Forms in alternative formats (¶ 48, 55): Defendants provided a set of forms for negotiation in early August. The parties have exchanged drafts and conferred at regular intervals, albeit less often than for policy discussions. Plaintiffs specify 20 forms needed and not yet included in negotiations, and they are concerned about the timing in that, they assert, their expert required the forms in October to be able to complete the simplification process in time for use in early December. The Special Master is not aware of Spanish language forms being available. It appears, however, that negotiations remain on track.
Prohibition of discrimination in parole placements and referrals to services (¶ 27): Information concerning this requirement did not come to the Special Master’s attention.
Develop an ADA grievance procedure (¶ 54): According to interim procedures, during service of rights and allegations, staff are to advise parolees of their right to appeal denied accommodations, and parolees’ attorneys are to provide grievance and appeal forms on request.85 The Special Master does not have further information concerning this requirement.
28 PDF created with pdfFactory trial version www.pdffactory.com

Development of an appeal process (¶ 43): As part of reporting of negotiations, Plaintiffs note they are concerned that policies and procedures do not include an adequate mechanism to track the timeliness of appeals and appeal decisions. Defendants have confirmed that, should a parolee appeal, CalPAP attorneys will be paid for that representation. The Special Master does not have further information concerning this requirement.
Comprehensive annual training on ADA and effective communication, the Stipulated Injunction's requirements and policies and procedures, due process (¶ 56): Defendants initiated ADA and effective communication training, as described above. They also describe detailed training, which appears to have been very welldesigned, to introduce parole agents, hearing officers, and other staff to many aspects of due process and the interim procedures.86
Board Coordinating Parole Agents and hearing officers attended portions of the training that the Board of Parole Hearings provided for its new Deputy Commissioners in December 2007. The Division of Juvenile Justice then provided training for those staff and parole agents, during February and March 2008, to orient them to the very new practices and principles involved in conducting due process hearings. The training employed a variety of teaching methods and provided content on the roles of those involved and legal and evidentiary standards and principles in preparing, presenting, hearing, and weighing evidence.
Importantly, some sessions were delivered and attended jointly by the divisions and CalPAP, an effective method of generating a joint sense of responsibility and
29 PDF created with pdfFactory trial version www.pdffactory.com

troubleshooting implementation problems that tend to arise out of disciplines or divisions working in metaphorical silos.
This appears to be an effective start to meeting the training obligation. Annual training will, of course, be designed after policies and procedures are finalized.
Tracking mechanism for timeframes and reasons for delay (¶ 13, 32, 33):87 Defendants initiated work to incorporate their business process into the information system known as the Revocation Scheduling and Tracking System, contracting with information system consultants and reportedly conducting semi-weekly planning meetings with representatives of departments that will use the system. While this process was underway, Defendants learned that a substantial amount of infrastructure, on which their plans relied, would not be available. The delay in the state budget approval appeared to delay the purchases that were then necessary. As of this writing, the Special Master understands that the building for the information systems department will need to be modified to provide sufficient space and power for this project. The Defendants have submitted a budget change proposal for information systems staff; they contend that, without an augmentation, there is insufficient staff to meet the demands of the two actions in which they are answerable to the courts – Farrell and LH – and they will be forced into noncompliance in at least one of the lawsuits. It will be important for there to be sufficient resources to comply with the requirement of incorporating the Juvenile Parole Board revocation hearing business process requirements into the Revocation Scheduling and Tracking System by December 3, 2008.
30 PDF created with pdfFactory trial version www.pdffactory.com

Monitoring process The Stipulated Injunction requires Defendants to develop a self-monitoring team to ensure compliance with its terms and with relevant policies and procedures (¶ 57). To the Special Master’s knowledge, this function, understandably, has not yet developed. Additionally, the issue of Plaintiffs’ monitoring was reserved from the Stipulated Injunction. The parties met and conferred, considering several models for external monitoring. While talks were productive, they did not reach conclusion. The parties determined that this decision is best deferred until there is greater certainty about the substance to be monitored. In the meantime, they anticipate negotiating a monthly document production.
Revocation may be extended only after a revocation extension hearing, and parolee must receive copy of decision (¶ 35, 40): When considering whether to extend a parolee’s time in custody, the Stipulated Injunction requires a due process system in which parolees have counsel (“revocation extension”), no longer using the Disciplinary Decision Making System, “Time Adds,” or parole consideration hearings for this purpose.. The parties are continuing to negotiate the policies and procedures, which Plaintiffs believe currently include too many features of the systems being replaced, which they note have been the subject of extensive criticism in this action as well as in the Farrell lawsuit.88
Policies and procedures governing dual commitments (¶ 45): The parties have been negotiating this topic. The Special Master has no further information at this time.
31 PDF created with pdfFactory trial version www.pdffactory.com

Elimination of “temporary detentions”; immediate rescission of relevant regulation (¶ 39): Defendants report that they issued instruction on this requirement to field staff effective before the Stipulated Injunction was signed, in April 2008. The parties have not yet undertaken a review of whether the practice has completely ceased, but no reports of temporary detentions have come to the Special Master’s attention.
The Stipulated Injunction requires Defendants to “immediately rescind Title 15, California Code of Regulations § 4985,” which concerns this practice. Almost four months later, the rescission is in process but still requires several more steps of review and signature. This does not reflect the appropriate level of urgency.
Defendants note that part of the elapsed time was attributable to searching for related regulations that might be affected by the rescission, and they argue that the memorandum directing staff to cease this practice stopped the harm that the rescission was meant to address.
Summary Both parties should be commended, first for achieving a settlement and secondly for their continued dogged pursuit through “meet and confers” to come to agreement on policies and procedures and the issues in dispute. The Defendants have worked aggressively in a difficult governmental environment to make significant changes in the juvenile justice parole system. Continued efforts to effect that change will be necessary as governmental agencies typically tend to lean toward retaining the status quo.
32 PDF created with pdfFactory trial version www.pdffactory.com

As many persons from both parties are intimately acquainted with the Valdivia v. Schwarzenegger lawsuit, many of the “lessons learned” in the adult parole system can assist in retooling the juvenile parole system. However, the persons “on the ground,” who must functionally implement the new policies and procedures, typically do not have that experiential base and will require explicit training and thoughtful leadership at all levels of the organization to successfully implement the required processes.
The Special Master’s team intends during the next term to concentrate on evaluating the Defendants’ implementation of the agreed upon processes and activities and to attempt to assist the parties in resolving those issues in dispute.
The Defendants have made important progress and are laying a solid foundation for the needed changes. The Special Master makes no recommendation to the Court at this time.

Chase Riveland /s/Chase Riveland
Special Master

November 25, 2008

33 PDF created with pdfFactory trial version www.pdffactory.com

1 The exception is the Stipulated Injunction requiring full implementation of its provisions related to the
ADA as of September; that timeframe was missed. See below for a more complete discussion. 2 Source for this paragraph is informal communications with Defendants and CalPAP 3 This action, of course, occurred after the Stipulated Injunction was ordered 4 Compliance Report, October 14, 2008 5 See, e.g,, letter from M. Lang to S. Renteria, August 22, 2008; since that time, the number has been
reduced significantly 6 Letter from G. Grunfeld to M. Brady and S. Renteria, October 17, 2008; Special Master’s observations 7 The sources for this paragraph are Compliance Report, October 14, 2008; DJJ Cases Closed, each month
spanning June through September 2008; and Special Master’s observations 8 See section titled “Tracking mechanism for timeframes and reasons for delay,” below 9 See section titled “Requirements related to ADA and effective communication,” below 10 The sources for this paragraph are Compliance Report, October 14, 2008 and informal communications
with Defendants 11 Informal communications among parties 12 Compliance Report, October 14, 2008 13 Compliance Report, October 14, 2008 14 CalPAP confirms this is correct, to its knowledge; staff are not aware of any parolee who did not receive
representation. 15 Informal communications with Defendants; there was only one case evident in the data where, after the
time probable cause hearings were initiated, a revocation hearing was held but a probable cause hearing
was not (see July 2008 spreadsheet) 16 Informal communications among parties 17 Compliance Report, October 14, 2008 18 DJJ Cases Closed, each month spanning June through September 2008; analysis includes only those
cases with detainers from February 15, 2008 forward. These data measure from the date of detainer, rather
than the hold, as the latter is not currently kept in revocation packets. Timeframe requirements for attorney
appointment are to be fully implemented in December. 19 Of the 238 cases analyzed, 58% (138) had appointments in this length of time. Percentages increased
over time. 20 The monthly totals were 11, 10, 18, and 16. 21 Appointments taking a month or more ranged from 10 to 13 each month. 22 While June saw 58 cases and July had 48, this jumped to 77 and 76 in August and September. 23 DJJ Cases Closed, each month spanning July through September 2008; June was not included in the
review because it collected fewer relevant data points. In one case, CalPAP received the notice documents
two days ahead of the hearing, and in one case, there was a same-day appointment at Los Angeles County
Jail. These were the only apparent exceptions. 24 Informal communications with CalPAP 25 Informal communications with CalPAP 26 Informal communications with CalPAP 27 Informal communications with CalPAP 28 Compliance Report, October 14, 2008, and informal communications 29 Informal communications with CalPAP 30 Informal communications with CalPAP 31 DJJ Cases Closed, each month spanning July through September 2008; June was not included in the
review because it collected fewer relevant data points. In one case, CalPAP received the notice documents
two days ahead of the hearing, and in one case, there was a same-day appointment at Los Angeles County
Jail. These were the only apparent exceptions. 32 Compliance Report, October 14, 2008, and informal communications with Defendants 33 Informal communications with CalPAP 34 Farrell v. Cate, a state court action with a Consent Decree currently being implemented in Division of
Juvenile Justice facilities 35 Informal communications with Plaintiffs 36 Informal communications with CalPAP 37 Informal communications with CalPAP
34
PDF created with pdfFactory trial version www.pdffactory.com

38 Unless otherwise noted, sources for this section are Compliance Report, October 14, 2008, and informal

communications with Defendants 39 Memorandum from C. Supple to staff, July 7, 2008 40 Informal communications with Defendants 41 DJJ Cases Closed, each month spanning June through September 2008. These data measure from the date

of detainer, rather than the hold, as the latter is not currently kept in revocation packets. Another 31

hearings (12%) were held within a week after the 13 business-day deadline. 42 This analysis includes only those youths detained from February 15, 2008 forward. 43 In fact, the longest cases worsened over time. In June and July, the longest time to hearing was under

three months; in August and September, there were multiple cases exceeding that, and up to 6½ months. 44 Memorandum from C. Supple to staff, July 7, 2008 45 DJJ Cases Closed, each month spanning July through September 2008. In July, 14 cases concluded at

the probable cause hearing; those numbers increased to 20 and 22 in the subsequent months. 46 Compliance Report, October 14, 2008, and informal communications with Defendants 47 Informal communications with Plaintiffs 48 DJJ Cases Closed, each month spanning June through September 2008, measuring from the detainer 49 18 were heard within an additional week 50 This includes only cases with a detainer date from February 15, 2008 forward. 51 The cases with a quick turnaround – one to two weeks – peaked and dipped in alternating months. About

half of the cases took two to four weeks between those hearings; these numbers largely increased during the

Round. The lengthiest cases – those heard more than one month after the probable cause hearing – declined

for a while but then spiked to their highest level in September. The range of times was 6 days to 4.7

months, and these also declined but then jumped in the most recent month. 52 In fact, some indicators worsened during the Round. The number of timely cases decreased and there

was an increase in the number of cases taking longer to resolve. This discussion includes only those youths

detained from February 15, 2008 forward. 53 DJJ Cases Closed, each month spanning June through September 2008; there were 58, 48, 77 and 76

closed cases in those months, respectively. 54 Id.; 63 were continued on parole at probable cause hearing and 58 at revocation hearing, for a total of

121 55 In these cases, the charges were dismissed altogether. In another 16 cases, charges were dismissed as

part of transferring them to local jurisdiction proceedings (“non-707b” cases). 56 The terms were distributed:

3 months -- 2

9 months - 21

4 months – 6

10 months - 4

5 months – 3

11 months - 1

6 months – 23

12 months – 11

7 months – 15

unspecified- 1

8 months – 11

Another 6 were returned until their maximum Available Confinement Time. A few others had other,
miscellaneous dispositions. 57 Informal communications with Plaintiffs 58 This draws on cases assigned to CalPAP on or after June 4, 2008 and closed on or before October 10,
2008. 59 Source for this paragraph is Compliance Report, October 14, 2008 60 Compliance Report, October 14, 2008 61 Letter from S. Huey to C. Riveland and V. Morrison, October 9, 2008; informal communications with
Defendants 62 Compliance Report, October 14, 2008, and informal communications 63 Informal communications with parties 64 Letter from C. Fritz to G. Grunfeld, July 1, 2008 65 Letter from S. Huey to C. Riveland and V. Morrison, October 9, 2008 66 Compliance Report, October 14, 2008 67 Source for this paragraph is Compliance Report, October 14, 2008

35 PDF created with pdfFactory trial version www.pdffactory.com

68 Informal communications with Plaintiffs 69 Memorandum titled Interim Accommodation/Effective Communication Policies and Procedures, September 2, 2008 70 Compliance Report, October 14, 2008; meeting contents as captured in S. Huey letter to M. Brady et al. dated July 22, 2008; informal communications 71 Source for this paragraph is Compliance Report, October 14, 2008; meeting contents as captured in S. Huey letter to M. Brady et al. dated July 22, 2008 72 Informal communications with Defendants 73 Sources for this and the next two paragraphs are policy titled PAROLEES WITH SERIOUS MENTAL HEALTH CONCERNS: RETURNS FOR IN-CUSTODY TREATMENT & SUSPENSION OF THE REVOCATION PROCESS, Sept. 8, 2008; Letter from A. Mania to M. Brady and S. Renteria, Sept. 29, 2008; policy with computer file name Psych Return P&Ps (draft 20081006) MH Review and Brady.doc 74 Informal communications with Plaintiffs; they report incomplete forms and some, for example, indicating “Other Disability” with no further detail. 75 Informal communications with Defendants; for more detail, please see discussion labeled, “At the time of attorney appointment, provision of relevant educational, mental health and disability identification and source documents (¶ 16),” above 76 Compliance Report, October 14, 2008 77 Memorandum titled Interim Accommodation/Effective Communication Policies and Procedures, September 2, 2008 78 That form, however, is subject to dispute between the parties. See the discussion in the previous section, “Informing counsel of the nature of the parolee’s difficulty at the time of appointment, extra time for representation.” 79 Letter from S. Huey to C. Riveland and V. Morrison, October 9, 2008 80 Memorandum titled Interim Accommodation/Effective Communication Policies and Procedures, September 2, 2008 81 Letter from S. Huey to C. Riveland and V. Morrison, October 9, 2008 82 Memorandum titled Interim Accommodation/Effective Communication Policies and Procedures, September 2, 2008 83 Sources for this paragraph are Special Master’s observations, Compliance Report, October 14, 2008, and informal communications with Defendants 84 Sources for this paragraph are Compliance Report, October 14, 2008, and informal communications with Defendants 85 Memorandum titled Interim Accommodation/Effective Communication Policies and Procedures, September 2, 2008 86 Source for this section is Compliance Report, October 14, 2008 87 Source for this section is Compliance Report, October 14, 2008 88 Informal communications with the parties
36
PDF created with pdfFactory trial version www.pdffactory.com

 
 Case 2:06-cv-02042-LKK-GGH Document 266 Filed 01/29/2008 Page 1 of 26

1

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

8

EASTERN DISTRICT OF CALIFORNIA

9

10 L.H., A.Z., D.K., and D.R., on behalf of themselves and
11 all other similarly situated juvenile parolees
12 in California,

13

Plaintiffs,

NO. CIV. S-06-2042 LKK/GGH

14

v.

O R D E R

15 ARNOLD SCHWARZENEGGER, Governor, State of
16 California, et al,

17

Defendants.

/

18

19

This motion arises out of this class action in which the

20 plaintiff class is comprised of convicted juvenile offenders who

21 have been released on parole. The plaintiffs allege that the

22 defendants have a policy and practice of denying the plaintiffs

23 their constitutional rights and their statutory rights under the

24 American with Disabilities Act, 42 U.S.C. §§ 12101-12213 and

25 section 504 of the Rehabilitation Act, 29 U.S.C. § 794.

26

The plaintiffs have brought three motions that are pending

1

Case 2:06-cv-02042-LKK-GGH Document 266 Filed 01/29/2008 Page 2 of 26

1 before the court. The plaintiffs have moved for leave to file a

2 second amended complaint and to amend the class definition. The

3 plaintiffs also have moved for a preliminary injunction and for a

4 remedial order. The court resolves the motions on the papers and 5 after oral argument.1

6

I. FACTS AND PROCEDURAL HISTORY

7

Plaintiffs brought this suit as a class action, filing their

8 Complaint on September 13, 2006 and their First Amended Complaint

9 on September 20, 2006. On February 28, 2007, the court granted the

10 plaintiffs’ motion for class certification. The certified class

11 consisted of “juvenile parolees in or under the jurisdiction of

12 California, including all juvenile parolees with disabilities as

13 that term is defined in Section 504 of the Rehabilitation Act and

14 the ADA, who are: (i) in the community under parole supervision or

15 who are at large; (ii) in custody in California as alleged parole

16 violators, and who are awaiting revocation of their parole; or

17 (iii) in custody, having been found in violation of parole and 18 returned to custody.”2

19

On February 28, 2007, the court issued a scheduling order in

20

21

1In light of the court’s November 28, 2007, order requiring

the parties to meet and confer to develop a joint remedial plan, 22 as well as plaintiff’s representation that they have been unable

to create a joint plan, see Docket No. 238, the court will appoint 23 Chase Riveland as a settlement referee. Consequently, the court

denies without prejudice the plaintiffs’ motion to enter their 24 remedial plan.

25

2This case is related with Valdivia v. Schwarzenegger , Case

No. Civ. S-94-671-LKK-GGH, which concerns similar issues in the 26 adult parole system.

2

Case 2:06-cv-02042-LKK-GGH Document 266 Filed 01/29/2008 Page 3 of 26

1 the case. It included the provision that no addition of parties or

2 other amendments would be permitted except with leave of court,

3 upon a showing of good cause, “with the exception of substitution

4 of plaintiffs.” The scheduling order was modified on October 29,

5 2007 to amend the pretrial and trial dates. The order set February

6 12, 2008 for the deadline for the designation of experts and

7 production of expert reports; April 30, 2008 as the discovery cut-

8 off; June 30, 2008 as the law and motion deadline; September 29,

9 2008 for the final pretrial conference; and January 6, 2009 for the

10 trial.

11

Discovery in the case has begun and both parties agree that

12 the plaintiffs have deposed at least five CDCR employees and/or

13 defendants and that the defendants have produced a “large” amount

14 of documents. See Declaration of Gay Grunfeld in Support of

15 Plaintiffs’ Motion for Leave to File a Second Amended Complaint and

16 Amend the Class Definition (“Grunfeld Decl.”), ¶¶ 14, 21;

17 Declaration of Cynthia Fritz in Support of Defendants’ Opposition

18 to Plaintiffs’ Motion (“Fritz Decl.”), ¶¶ 4-5.

19

On September 19, 2007, the court granted partial summary

20 judgment for the plaintiffs, holding that the defendants violated

21 the plaintiffs’ due process rights by failing to hold

22 constitutionally-adequate probable cause hearings prior to parole

23 revocation. See Morrissey v. Brewer, 408 U.S. 471 (1972). The court

24 requested proposed remedial plans from each party and, on November

25 28, 2007, ordered the parties to meet and confer for the purpose

26 of developing a joint remedial plan that addresses the

3

Case 2:06-cv-02042-LKK-GGH Document 266 Filed 01/29/2008 Page 4 of 26

1 constitutional violations identified in the court’s summary

2 judgment order.

3

II. STANDARDS

4 A. STANDARD FOR AMENDING THE PLEADINGS UNDER FEDERAL RULE OF

5

CIVIL PROCEDURE 16(b)

6

Federal Rule of Civil Procedure 16(b) provides in part:

7

(b) [The district court] ... shall, after consulting

8

with the attorneys for the parties and any unrepresented

9

parties, by a scheduling conference, ... enter a

10

scheduling order that limits the time,

11

(1) to join other parties and to amend the

12

pleadings;

13

(2) to file and hear motions; and

14

(3) to complete discovery.

15 See also Johnson v. Mammoth Recreations, Inc. , 975 F.2d 604 (9th

16 Cir. 1992).

17

Unlike Rule 15(a)'s liberal amendment policy which focuses on

18 the bad faith of the party seeking to interpose an amendment and

19 the prejudice to the opposing party, Rule 16(b)'s "good cause"

20 standard primarily considers the diligence of the party seeking the

21 amendment. Harrison Beverage Co. v. Dribeck Importers, Inc., 133

22 F.R.D. 463, 469 (D.N.J. 1990); Amcast Indus. Corp. v. Detrex Cor,p.

23 132 F.R.D. 213, 217 (N.D. Ind. 1990); 6A RWIGHT, MILLER & KANE, FEDERAL

24 PRACTICE AND PROCEDURE § 1522.1 at 231 (2d ed. 1990) ("good cause"

25 means scheduling deadlines cannot be met despite party's

26 diligence).

4

Case 2:06-cv-02042-LKK-GGH Document 266 Filed 01/29/2008 Page 5 of 26

1

Moreover, carelessness is not compatible with a finding of

2 diligence and offers no reason for a grant of relief. .CfEngleson

3 v. Burlington Northern R.R. Co. , 972 F.2d 1038, 1043 (9th Cir.

4 1992) (carelessness not a ground for relief under Rule 60(b));

5 Martella v. Marine Cooks & Stewards Union, 448 F.2d 729, 730 (9th

6 Cir. 1971) (same), cert. denied, 405 U.S. 974, 92 S. Ct. 1191, 31

7 L.Ed.2d 248 (1972). Although the existence or degree of prejudice

8 to the party opposing the modification might supply additional

9 reasons to deny a motion, the focus of the inquiry is upon the

10 moving party's reasons for seeking modification. See Gestetner

11 Corp. v. Case Equip. Co., 108 F.R.D. 138, 141 (D.Me. 1985). If the

12 moving party was not diligent, the inquiry should end.

13 B. STANDARD FOR AMENDMENT UNDER FEDERAL RULE OF CIVIL PROCEDURE

14

15(a)

15

The Federal Rules provide that leave to amend pleadings

16 shall be freely given when justice so requires. Fed. R. Civ. P.

17 15(a).1 Although the standard becomes progressively more stringent

18 as the litigation proceeds, the Circuit has explained that the same

19 four factors are pertinent to resolution of a motion to amend: (1)

20 the degree of prejudice or surprise to the non-moving party if the

21 order is modified; (2) the ability of the non-moving party to cure

22 any prejudice; (3) the impact of the modification on the orderly

23 and efficient conduct of the case; and (4) any degree of

24 1 The entire text of the rule reads:
25 “A party may amend the party’s pleading only by leave of court or by written consent of the adverse party; and
26 leave shall be freely given when justice so requires.”

5

Case 2:06-cv-02042-LKK-GGH Document 266 Filed 01/29/2008 Page 6 of 26

1 willfulness or bad faith on the part of the party seeking the

2 modification. See Byrd, 137 F.3d at 1132 (citing United States v.

3 First Nat’l Bank of Circle , 652 F.2d 882, 887 (9th Cir. 1981)).

4 The burden is on the moving party to show that consideration of

5 these factors warrants amendment. See id.

6

Prejudice to the opposing party is the most important factor

7 to consider in determining whether a party should be granted leave

8 to amend. See Jackson v. Bank of Hawaii, 902 F.2d 1385, 1387 (9th

9 Cir. 1990)(citing Zenith Radio Corp. v. Hazeltine Research, Inc.,

10 401 U.S. 320, 330-31 (1971)). While delay alone is insufficient to

11 deny amendment, undue delay is a factor to be considered. See

12 Morongo Band of Mission Indians v. Rose, 893 F.2d 1074, 1079 (9th

13 Cir. 1990)(affirming district court’s denial of motion for leave

14 to amend to add new claims made two years into litigation).

15 Amendment may also be denied when it is futile. See

Kiser v.

16 General Electric Corp., 831 F.2d 423, 428 (3d Cir. 1987), cert.

17 denied, 485 U.S. 906 (1988). The test for futility is identical

18 to the one used when considering the sufficiency of a pleading

19 challenged under Rule 12(b)(6). Miller v. Rykoff-Sexton, Inc,.845

20 F.2d 209, 214 (9th Cir. 1988)(citing Baker v. Pacific Far East

21 Lines, Inc., 451 F. Supp. 84, 89 (N.D. Cal. 1978)). Accordingly,

22 a proposed amendment is futile only if no set of facts can be

23 proved under the amendment to the pleading that would constitute

24 a valid and sufficient claim or defense. Id.

25 ////

26 ////

6

Case 2:06-cv-02042-LKK-GGH Document 266 Filed 01/29/2008 Page 7 of 26

1

III. ANALYSIS

2 A. Motion for Leave to File Second Amended Complaint and to

3

Amend the Class Definition

4

The plaintiffs seek leave to amend the class definition for

5 the purpose of clarifying the claims, to name new defendants,

6 and to substitute in new named class representatives. As

7 explained herein, the court grants the motion in part.

8

1. Clarification of the Basis of the Causes of Action

9

First, the plaintiffs seek leave to amend the complaint and

10 the definition of the plaintiff class so as to “clarify” that

11 the causes of action encompass not only juvenile parole

12 revocation proceedings, but all proceedings related to parole,

13 including parole consideration hearings, “time-add” hearings (a

14 hearing by which the juvenile ward’s parole date is extended),

15 and others. Accordingly, the plaintiffs also seek to amend the

16 complaint to replace “parolee” with “ward/parolee.” The

17 plaintiffs also wish to add a fourth category to the plaintiff

18 class: “ward/parolees who have not yet paroled and are subject

19 to ‘parole proceedings,’ which include parole consideration,

20 time-add, YAAC, JJAC, YAB, DDMS, Intake Case Review, Annual Case

21 and/or Good Cause and/or Progress Reviews, Appeal

22 Hearing/Review, Appeal Resolution, Discharge, Special Agenda,

23 Rescission, Corrective Action Plan, Parole Consideration Date,

24 Projected Board Date Determination Review, and other hearings

25 that implicate a liberty interest by extending the amount of

26 time a ward/parolee is detained in custody and/or in a DJJ

7

Case 2:06-cv-02042-LKK-GGH Document 266 Filed 01/29/2008 Page 8 of 26

1 institution, whether these hearings are held before the ward is

2 released on parole or after the ward/parolee is serving a

3 revocation term.” See Grunfeld Decl. Exh. C, ¶ 132.

4

As stated above, once a scheduling order has been issued, a

5 motion to amend the complaint is treated as a motion to amend

6 the scheduling order under Federal Rule of Civil Procedure 16(b)

7 and will be granted only upon a showing of good cause.2 Johnson,

8 975 F.2d at 607-609. “Good cause” is shown where the party

9 seeking leave to amend has demonstrated sufficient diligence.

10 Id. at 609. Here, the court specifically instructed the parties

11 in its February 28, 2007 scheduling order that the Johnson

12 standard for amendment would be required, “with the exception of

13 the substitution of plaintiffs.”

14

Good cause may be found to exist where the moving party

15 shows that she assisted the court with creating a workable

16 scheduling order, that she is unable to comply with the

17 scheduling order’s deadlines due to matters that could not have

18 reasonably been foreseen at the time of the issuance of the

19 scheduling order, and that she was diligent in seeking an

20 amendment once it became apparent that she could not comply with

21 the scheduling order. Jackson v. Laureate, Inc., 186 F.R.D. 605,

22 608 (E.D. Cal. 1999)(citations omitted). A court may supplement

23 its determination by noting the prejudice to the other party.

24 Johnson, 975 F.2d at 609. If good cause is found, then the court

25 2In their motion to amend, the plaintiffs erroneously assert
26 that Rule 15 applies to this amendment. It does not.

8

Case 2:06-cv-02042-LKK-GGH Document 266 Filed 01/29/2008 Page 9 of 26

1 turns to Rule 15 to determine whether the amendment sought

2 should be granted. Id. at 608.

3

The plaintiffs explain that at the time that class

4 certification was sought, the defendants had provided little

5 discovery. It was only until the summer of 2007, plaintiffs

6 assert, that they realized that the wards should be explicitly

7 included as plaintiffs in the complaint, and that additional

8 juvenile proceedings should be added to the allegations of the

9 complaint.

10

Although the court is mindful of the difficulty with which

11 a plaintiff is necessarily faced in drafting an accurate

12 complaint and seeking class certification before discovery is

13 complete, the court nevertheless must conclude that amendment of

14 the first amended complaint is not proper here. Simply, the

15 plaintiffs did not act diligently enough. Even accepting as true

16 that the plaintiffs did not know of the facts underlying the

17 wards’ claims until this summer, the plaintiffs did not bring

18 the present motion until mid-November. Significantly, on October

19 22, 2007, the plaintiffs requested an amendment of the

20 scheduling order to extend the deadline for expert disclosures.

21 Neither in this request nor in the court’s October 25, 2007

22 telephone conference with the parties to discuss this request

23 did the plaintiffs indicate that they might wish to amend the

24 First Amended Complaint to expand the plaintiff class. On the

25 contrary, in their October 22, 2007 Stipulation and Proposed

26 Order Extending Dates for Expert Designation Reports and

9

Case 2:06-cv-02042-LKK-GGH Document 266 Filed 01/29/2008 Page 10 of 26

1 Depositions, the plaintiffs represented to the court that they

2 contemplated filing additional summary judgment motions that

3 would “narrow the case.” According to the plaintiffs’ counsel’s

4 declaration, however, at the time of making this request and

5 participating in the telephone conference, the plaintiffs were

6 also seeking a stipulation from the defendants to amend the

7 First Amended Complaint to expand the plaintiff class. See

8 Grunfeld Decl., ¶¶ 6-10. Given this set of events, the court

9 cannot conclude that the plaintiffs exercised the diligence

10 necessary to constitute

11 “good cause” that would permit leave to amend under Rule 16.3

12

The court’s view is supported by consideration of the

13 prejudice to the defendants that the sought amendment would

14 cause. Although the plaintiffs characterize their amendments as

15 mere “clarifications” of language and claims already extant in

16 the First Amended Complaint, in actuality the proposed

17 amendments represent a significant expansion of the nature of

18 the suit. For instance, while the First Amended Complaint dealt

19 only with the procedures governing parole revocations, the

20 proposed Second Amended Complaint would be directed at over

21 3Even if the court found that the plaintiffs met the standard
22 for amendment of the pleadings under Rule 16, the plaintiffs only raise in their reply brief their argument that the proposed new
23 plaintiffs meet Rule 23(b)(2)’s requirements for class certification, particularly the typicality requirement. Although
24 it may be that Rule 23(b)(2) would be met by the proposed new plaintiffs, it is not proper for the court to rely on this argument
25 without the defendants’ having had an opportunity to respond. See Provenz v. Miller, 102 F.3d 1478, 1483 (9th Cir. 1996).
26

10

Case 2:06-cv-02042-LKK-GGH Document 266 Filed 01/29/2008 Page 11 of 26

1 fifteen additional hearings that implicate a ward/parolee’s

2 liberty interest. Although the First Amended Complaint alluded

3 to some of these procedures, see, e,g., First Amended Complaint

4 ¶¶ 39, 50, 130, 148 (referring to revocation proceedings

5 specifically, as well as “other” or “additional” parole

6 proceedings), the complaint was clearly directed towards alleged

7 inadequacies in the parole revocation process. See, e.g., First

8 Amended Complaint, ¶¶ 72-88 (describing the named plaintiffs

9 only with regards to their experiences with parole revocation),

10 130 (describing the second cause of action, alleging due process

11 violations, only in terms of revocation procedures). This was

12 the focus of the class certification, the September 2007 summary

13 judgment motion, and, logically and according to the defendants’

14 counsel’s declaration, the strategy defendants have developed.

15 See Eagle v. American Telephone & Telegraph, Co., 769 F.2d 541

16 (9th Cir. 1985)(Rule 16 amendment improper to permit the

17 addition of a new damages theory, where the plaintiff had

18 proposed the theory in his summary judgment motion). The expense

19 and delay with which the proposed amendment would burden the

20 defendants constitute appreciable prejudice. See Kaplan v. Rose,

21 49 F.3d 1363, 1370 (9th Cir. 1994); Morongo Band of Mission

22 Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir. 1980).

23

The plaintiffs argue, in their reply brief, that this

24 prejudice is mitigated by the fact that the defendants were on

25 notice of the plaintiffs’ intent to include non-revocation

26 proceedings in the suit. For example, in Sousa ex rel. Will of

11

Case 2:06-cv-02042-LKK-GGH Document 266 Filed 01/29/2008 Page 12 of 26

1 Sousa v. Unilab Corporation, 252 F. Supp. 2d 1046, 1059 (E.D.

2 Cal. 2002), the court opined that an amendment could be granted

3 under Rule 16 when the other party had notice of the new theory

4 or allegation. There, the defendants raised a statute of

5 limitations defense in their motion for summary judgment,

6 although in the scheduling order the court had identified a

7 different issue as the “sole issue” in the case. Id. at 1057-58.

8 Despite this, the court noted that the defendants had raised the

9 statute of limitations defense in their answer, that it was

10 listed in the parties’ joint pretrial statement, and that it was

11 discussed at the pretrial conference. Id. at 1059. Notice was

12 evinced by the plaintiffs having addressed the statute of

13 limitations in their own motion for summary judgment. Id. The

14 court characterized the statute of limitations defense as having

15 been “accidentally omitted” from the scheduling order. Id. at n.

16 4. Based on this, the court found good cause under Rule 16 to

17 amend the order. Id. at 1059.

18

Here, the plaintiffs do not present such compelling

19 evidence of notice. As described above, though the First Amended

20 Complaint contained references to hearings other than revocation

21 hearings, these references are brief and seem obviously

22 incidental to the thrust of the complaint, which was the

23 inadequacy of parole revocation hearings. The court cannot

24 conclude that these brief mentions put the defendants on notice

25 of the breadth of the plaintiffs’ claims, as the plaintiffs

26 argue here.

12

Case 2:06-cv-02042-LKK-GGH Document 266 Filed 01/29/2008 Page 13 of 26

1

The evidence of discovery is similarly uncompelling as to

2 the defendants’ notice. The plaintiffs offer the interrogatories

3 served on defendants, pointing out that the “Definitions”

4 section of the document lists several non-revocation hearings.

5 See Reply Declaration of Gay Grunfeld (“Grunfeld Reply Decl.”),

6 Exh. A at 2:2-25. This characterization is misleading, however,

7 as the non-revocation hearings (e.g., “parole consideration

8 hearings, time-adds, YAAC hearings,” etc.) are listed in the

9 definition for “Parole Revocation Hearings” and are described by

10 plaintiffs as “the process whereby a determination is made

11 whether or not to revoke or continue the revocation of parole.”

12 Id. at 2:9-23. The court does not see how this would put the

13 defendants on notice that the plaintiffs intended their claims

14 to encompass non-revocation hearings.

15

The plaintiffs also direct this court to transcripts of

16 depositions of individuals employed by defendants, who testified

17 about proceedings other than revocation proceedings, two of whom

18 defendants had designated as persons most knowledgeable about

19 these hearings. See Grunfeld Reply Decl., ¶¶ 6-8, Exh. B-D.

20 Although this inclines the court to believe that the defendants

21 may have been on notice of the plaintiffs’ intention to include

22 these hearings in their causes of action, the evidence of notice

23 is not conclusive. The court thus cannot conclude that good

24 cause to amend exists as a result of the defendants’ having had

25

26

13

Case 2:06-cv-02042-LKK-GGH Document 266 Filed 01/29/2008 Page 14 of 26

1 notice.4

2

Finally, a note about judicial economy. The plaintiffs

3 point out, correctly in this court’s view, that judicial economy

4 is amply served by permitting the amendment the plaintiffs seek.

5 By denying leave to amend, the court creates a situation in

6 which the plaintiffs would be required to file a new suit in

7 order to address claims involving non-revocation proceedings for

8 juveniles. That new suit might include allegations of facts,

9 legal claims, and a potential remedy that would overlap

10 appreciably with the present case.5 Nevertheless, Rule 16 and

11 the court’s scheduling order are not optional directives; the

12 court is bound by them. A loss of efficiency is the resultant

13 price that the parties and the court must pay.

14

Because the plaintiffs have not shown good cause and

15 mindful of the prejudice that would result, the court declines

16 to grant plaintiffs leave to amend the First Amended Complaint

17 in order to make explicit the inclusion of wards and additional

18 juvenile proceedings in the plaintiffs’ causes of action.6

19
4Furthermore, the plaintiffs raise the notice argument for the 20 first time in their reply brief. The court’s reliance on it would
be improper. Provenz, 102 F.3d at 1483. 21
5Moreover, as noted in the hearing, a motion to relate the new 22 suit would most likely be granted.

23

6The court also observes that in Farrell v. Hickman, Alameda

County Superior Court case number RG03079344, the defendants have 24 agreed to a remedial plan that includes modifications to the

juvenile disciplinary, time-add, and grievance procedures. See 25 Fritz Decl., ¶ 19. The court is hesitant to permit expansion of the

present case in a manner that may result in inconsistent judgments 26 in the respective cases.

14

Case 2:06-cv-02042-LKK-GGH Document 266 Filed 01/29/2008 Page 15 of 26

1

2. Addition of Defendants

2

Under Federal Rule of Civil Procedure 25(d), when a public

3 official is named as a party, his successor is “automatically”

4 substituted as a party. The court can see no reason why the Rule

5 should be construed to only apply to individuals listed as

6 parties and not to public agencies. See Cayuga Indian Nation of

7 New York v. Pataki, 188 F. Supp. 2d 223, 256 (N.D.N.Y. 2002)

8 (holding same). As of January 1, 2007, the Juvenile Parole Board

9 is now the agency responsible for parole revocation hearings for

10 juveniles. Cal. Penal Code § 5075.1. The plaintiffs also propose

11 naming as defendants Askia Abdulmajeed and Tomas Martinez, two

12 Board members who have since been appointed. In accordance with

13 Rule 25(d), the court finds this amendment proper.

14

3. Substitution of Plaintiffs

15

According to the February 28, 2007 scheduling order, good

16 cause need not be shown for the plaintiffs to substitute named

17 plaintiffs as representative class members. The plaintiffs

18 assert that substitution is necessary because the named class

19 members will soon age out of the juvenile parole system, thus

20 mooting the case if they are not substituted. This is a proper

21 basis for allowing substitution. See Gluth v. Kangas, 951 F.2d

22 1504, 1509 (9th Cir. 1991); Gomez v. Vernon, 962 F. Supp. 1296,

23 1301 (D. Idaho 1997).

24

The plaintiffs propose the addition of M.N., C.B., and R.C.

25 as named plaintiffs. See Grunfeld Decl. Exh. C, ¶¶ 72-100. All

26 three of these individuals are juveniles who have been released

15

Case 2:06-cv-02042-LKK-GGH Document 266 Filed 01/29/2008 Page 16 of 26

1 on parole. M.N. and R.C. allegedly suffered due process

2 violations, including delays in revocation hearings and failure

3 to have attorney assistance for the revocation hearing. After

4 reviewing the allegations of these three individuals, the court

5 concludes that M.N. and R.C. satisfy the typicality requirement

6 of Rule 23 and therefore the court permits the plaintiffs to

7 amend their First Amended Complaint to add them as named

8 plaintiffs.7

9 B. Motion for Preliminary Injunction

10

The plaintiffs have moved for a preliminary injunction to

11 require the defendants to 1) provide all juvenile parolees with

12 effective counsel at parole revocation proceedings, 2) provide

13 juvenile parolees with adequate ADA accommodations at every

14 stage of the parole revocation proceedings, and 3) revise their

15 forms and documents to make them more comprehensible to the

16 juvenile parolees. The court grants the injunction in part.

17

A preliminary injunction may issue if the movant shows

18 either “a combination of probable success and the possibility of

19 irreparable harm, or that serious questions are raised and the

20 balance of hardship tips in its favor.” Prudential Real Estate

21 Affiliates, Inc. v. PPR Realty, Inc., 204 F.3d 867, 874 (9th

22 Cir. 2000). At a minimum, the movant must show “a fair chance of

23 success on the merits, or questions serious enough to require

24

7The court reminds the plaintiffs that the only “experiences”

of the named plaintiffs that are relevant, given the court’s 25 present ruling, are those that relate to parole revocation.

Extraneous allegations may be subject to a motion to strike. See, 26 e.g., Grunfeld Decl. Exh. C, ¶ 80.

16

Case 2:06-cv-02042-LKK-GGH Document 266 Filed 01/29/2008 Page 17 of 26

1 litigation” and a significant threat of irreparable injury.

2 Arcamuzi v. Continental Air Lines, Inc., 819 F.2d 935, 937 (9th

3 Cir. 1987). In considering a request for a preliminary

4 injunction, the court need only conclude that there is a

5 probability that the necessary facts can be proven in a

6 subsequent proceeding or at trial. Sierra On-Line, Inc. v.

7 Phoenix Software, Inc., 739 F.2d 1415, 1423 (9th Cir. 1984).

8

1. Effective Counsel for All Juvenile Parolees in

9

Revocation Proceedings

10

Under Gagnon v. Scarpelli, 411 U.S. 778, 790 (1973), a

11 parolee presumptively is entitled an attorney in revocation

12 proceedings where either the parolee has a colorable claim that

13 he did not violate the terms of his parole, or when the parolee

14 has substantial reasons that justified or mitigated the

15 violation and the reasons would be difficult for the parolee to

16 present. If the parolee appears not “capable of speaking

17 effectively for himself,” this weighs in favor of the

18 appointment of counsel. Id. at 790-91.

19

The Gagnon court observed that, where the parolee is

20 unsophisticated, the assistance of counsel is the necessary

21 means by which the due process protections of Morrissey are

22 realized:

23

[T]he effectiveness of the rights guaranteed by

Morrissey may in some circumstances depend on the use

24

of skills which the probationer or parolee is unlikely

to possess. Despite the informal nature of the

25

proceedings and the absence of technical rules of

procedure or evidence, the unskilled or uneducated

26

probationer or parolee may well have difficulty in

17

Case 2:06-cv-02042-LKK-GGH Document 266 Filed 01/29/2008 Page 18 of 26

1

presenting his version of a disputed set of

facts . . . .

2 Id. at 786-87.

3

Although the Gagnon court held that the determination of

4 whether appointment of counsel was necessary in revocation

5 procedures should be made on a case-by-case basis, the court

6 concludes that juvenile parolees are a special class of parolees

7 for whom appointment of counsel is always appropriate. Put

8 plainly, a parolee’s lack of skills and education that the

9 Gagnon court held weighed in favor of the appointment of counsel

10 is inherent to a juvenile. The court had found this to be true

11 in its order certifying the class and it is no less true now.

12

In addition to juveniles’ lack of education, maturity, and

13 skills as a function of their age, there are significant

14 allegations that members of the plaintiff class possess

15 additional difficulties that would impede their ability to argue

16 on their own behalf at parole revocation proceedings. As the

17 court has previously observed, learning disabilities, substance

18 abuse, difficulties in speaking and understanding English are

19 alleged to abound among the class members. See Feb. 28, 2007

20 Order at 7, 14. This further suggests to the court that the

21 plaintiffs are likely to succeed in showing that failure to

22 appoint counsel to juvenile parolees in revocation procedures

23 violates those parolees’ rights under Gagnon.

24

The injuries of which the plaintiffs complain are

25 deprivations of liberty, one of the most serious deprivations

26 that can occur and a parolee possesses a substantial interest in

18

Case 2:06-cv-02042-LKK-GGH Document 266 Filed 01/29/2008 Page 19 of 26

1 it. See Morrissey, 408 U.S. at 481-83. The causal link between

2 the loss of a parolee’s liberty and his inability to effectively

3 represent himself in revocation hearings is implicit in Gagnon.

4 See Gagnon, 411 U.S. at 781, 786-87. There can be no question

5 that the plaintiffs have made the requisite showing that there

6 is a significant threat of irreparable injury if the preliminary

7 injunction does not issue.

8

Defendants do not dispute the necessity of appointing

9 counsel to all juvenile parolees in revocation proceedings, but

10 argue that a preliminary injunction is not necessary because the

11 appointment of counsel is already a part of the defendants’

12 remedial plan. See September 19, 2007 Order at 29, n. 18

13 (requiring defendants to produce a remedial order to address

14 constitutional violations under Morrissey).

15

Although the court lauds the defendants for creating a

16 remedial plan that addresses all of the corrections they intend

17 to make of the juvenile parole system, those provisions that lie

18 outside the scope of the court’s September 19, 2007 summary

19 judgment order are, strictly speaking, unenforceable as a remedy

20 to the violations found at summary judgment. Therefore, the

21 preliminary injunction is a necessary mechanism for mandating

22 and enforcing the appointment of counsel for juvenile parolees.8

23

The defendants also ask the court to take judicial notice

24

8As a practical matter, the court observes that the parties

could stipulate to a permanant injunction that includes the 25 remedial plan for the September 19, 2007 summary judgment order as

well as other provisions, as was done in Valdivia v. 26 Schwarzenegger.

19

Case 2:06-cv-02042-LKK-GGH Document 266 Filed 01/29/2008 Page 20 of 26

1 of the Youth Bill of Rights, S.B. 518, Cal. 2007-08 Reg. Sess.

2 (Cal. 2007), effective October 13, 2007. The court does so

3 pursuant to Federal Rule of Evidence 201, because the accuracy

4 of the document provided cannot reasonably be questioned and

5 because a copy of the bill was provided to the court. Under the

6 bill, juveniles housed at the Division of Juvenile Facilities

7 are “to have counsel and a prompt probable cause hearing when

8 detained on . . . parole violations.” As the plaintiffs argue,

9 the bill neither provides for juveniles housed elsewhere nor

10 delineates the extent of counsel’s participation in order to

11 ensure that representation would be effective. The court also

12 observes that the Youth Bill of Rights contains no funding

13 provisions. As such, the court cannot conclude that this bill

14 obviates the need for a preliminary injunction.

15

Finally, the court holds that the plaintiffs do not have to

16 file a bond, as required by Federal Rule of Civil Procedure

17 65(c), because the defendants have made no showing of the cost

18 of compliance with the injunction.9 Additionally, given that

19 the plaintiff class is comprised of juveniles, the court

20 believes they are likely indigent. These factors permit a court

21 to waive the security requirement, Barahona-Gomez v. Reno, 167

22 F.3d 1228, 1237 (9th Cir. 1999), and the court concludes no bond

23 is appropriate here.

24

The court grants the preliminary injunction requiring

25

9On the contrary, the defendants take the position that the

injunction in unnecessary because they would voluntarily implement 26 the requested changes.

20

Case 2:06-cv-02042-LKK-GGH Document 266 Filed 01/29/2008 Page 21 of 26

1 defendants to appoint counsel to represent juvenile parolees at

2 every parole revocation hearing. Additional requirements to

3 ensure the effectiveness of counsel follow in Section V, infra.

4

2. ADA Accommodations at Revocation Hearings

5

Under the ADA, a disabled individual must “be provided with

6 ‘meaningful access’ to state provided services.” Armstrong v.

7 Davis, 275 F.3d 849, 861 (9th Cir. 2001). In the parole context,

8 this includes ensuring notice is adequate in light of a

9 parolee’s disability, training to state personnel to identify

10 and communicate with disabled individuals, and ensuring the

11 accessibility of hearing facilities. Id. at 861-63. The state’s

12 failure to provide such accommodations constitutes

13 discrimination under the ADA. Id. at 863.

14

Here, the plaintiffs have shown that there is a fair chance

15 they will succeed in proving that the defendants do not comply

16 with the ADA in parole revocation proceedings. See

17 Declaration of Michael Bien in Support of Plaintiffs’ Motion for

18 a Preliminary Injunction, Exh. A at 81-82, Exh. C at 174;

19 Grunfeld Decl., Exh. E at 161-62, Exh. F at 115-16 .

20 Additionally, the possibility that the affected plaintiffs would

21 consequently suffer discrimination that would impede their

22 ability to participate in proceedings in which their liberty

23 rights are at stake demonstrates the likelihood of irreparable

24 injury.

25

Therefore, the court issues a preliminary injunction to

26 require defendants to develop sufficiently specific draft

21

Case 2:06-cv-02042-LKK-GGH Document 266 Filed 01/29/2008 Page 22 of 26

1 Policies, Procedures, and Plans (“Policies and Procedures”) that

2 will ensure continuous compliance with all of the requirements

3 of the Americans with Disabilities Act in parole revocation

4 proceedings. Defendants will promptly disseminate their Policies

5 and Procedures in an effective manner. The Policies and

6 Procedures must ensure that Juvenile Parolees with effective

7 communication needs (including but not limited to mental

8 illness, other cognitive or communication impairments,

9 illiteracy, limited English-language proficiency, and the need

10 for a foreign language interpreter) and/or disabilities are able

11 to participate, to the best of their abilities, in all parole

12 revocation proceedings. The Policies and Procedures shall

13 include detailed procedures for accommodating and effectively

14 communicating with Juvenile Parolees with Disabilities and/or

15 effective communication needs at all Parole Revocation

16 Proceedings.

17

Defendants shall submit the draft Policies and Procedures

18 to the Court no later than March 15, 2008. The parties shall

19 attempt to resolve any disputes informally. If there are any

disputes that the parties cannot resolve, such disputes shall be 20

briefed by the parties to the Court for hearing in May 2008. If 21
there are no unresolved disputes, the parties shall so inform 22
the Court no later than March 31, 2008. 23
3. Revision of Forms 24
Finally, the plaintiffs seek a preliminary injunction to 25
require defendants to revise their parole revocation forms to 26

22

Case 2:06-cv-02042-LKK-GGH Document 266 Filed 01/29/2008 Page 23 of 26

1 make them comprehensible at a sixth grade reading level. The

2 defendants have agreed to revise the forms. Accordingly, the

3 court will not consider the matter further.

4

IV. CONCLUSION

5

In light of the above, the court orders as follows:

6

1. Plaintiffs’ motion to amend the first amended

7

complaint is DENIED except to add plaintiffs M.N. and

8

R.C. as named plaintiffs and the Juvenile Parole

9

Board, Askia Abdulmajeed, and Tomas Martinez as

10

defendants;

11

2. Plaintiffs’ motion to enter a remedial order is

12

DENIED;

13

3. Plaintiffs’ motion for preliminary injunction is

14

GRANTED IN PART. The defendants are ordered as

15

follows:

16

a. Commencing on or before February 15, 2008,

17

Defendants shall appoint counsel to represent

18

each and every Juvenile Parolee in Parole

19

Revocation Proceedings;

b. Counsel shall be appointed and provided with all 20

necessary files at a time sufficiently in advance 21
of the Probable Cause Hearing to allow adequate 22
and competent preparation. Counsel shall not be 23
denied reasonable access to all of their clients’ 24
files; 25
c. Counsel shall be provided reasonable access to 26

23

Case 2:06-cv-02042-LKK-GGH Document 266 Filed 01/29/2008 Page 24 of 26

1

their clients in areas or spaces that provide for

2

confidential communications;

3

d. No Juvenile Parolee shall be precluded from

4

obtaining counsel of his or her own choosing at

5

his or her own cost, including his or her public

6

defender or other appointed counsel, retained

7

counsel, or pro bono counsel. Such counsel shall

8

have the same rights under this Preliminary

9

Injunction, except as to compensation, as counsel

10

appointed by Defendants. As part of the Policies

11

and Procedures promulgated under this Order,

12

Defendants shall develop a process for timely

13

notifying a Juvenile Parolee’s counsel of record

14

or public defender of the imposition of a parole

15

hold;

16

e. Defendants shall ensure effective communication

17

and shall provide necessary accommodations to all

18

Juvenile Parolees throughout the Revocation

19

Process;

f. Defendants shall develop sufficiently specific 20

draft Policies and Procedures that will ensure 21
continuous compliance with all of the 22
requirements of the Americans with Disabilities 23
Act in parole revocation proceedings. Defendants 24
will promptly disseminate their Policies and 25
Procedures in an effective manner. The Policies 26

24

Case 2:06-cv-02042-LKK-GGH Document 266 Filed 01/29/2008 Page 25 of 26

1

and Procedures must ensure that Juvenile Parolees

2

with effective communication needs (including but

3

not limited to mental illness, other cognitive or

4

communication impairments, illiteracy, limited

5

English-language proficiency, and the need for a

6

foreign language interpreter) and/or disabilities

7

are able to participate, to the best of their

8

abilities, in all parole revocation proceedings.

9

The Policies and Procedures shall include

10

detailed procedures for accommodating and

11

effectively communicating with Juvenile Parolees

12

with Disabilities and/or effective communication

13

needs at all Parole Revocation Proceedings;

14

g. Defendants shall submit the draft Policies and

15

Procedures, as described in 3(f), supra, to the

16

Court no later than March 15, 2008. The parties

17

shall attempt to resolve any disputes informally.

18

If there are any disputes that the parties cannot

19

resolve, such disputes shall be briefed by the

parties to the Court for hearing in April 2008. 20

If there are no unresolved disputes, the parties 21

shall so inform the Court no later than March 31, 22

2008. 23

4. Chase Riveland is appointed to serve as settlement 24
referee in the case. In accordance with the 25
parties’ representations, Mr. Riveland’s fee will 26

25

Case 2:06-cv-02042-LKK-GGH Document 266 Filed 01/29/2008 Page 26 of 26

1

be paid by the parties, with the plaintiffs and

2

defendants each bearing half of the cost.

3

IT IS SO ORDERED.

4

DATED: January 29, 2008.

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

26

 
 Case 2:06-cv-02042-LKK -GGH Document 543 Filed 05/28/09 Page 1 of 46
IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

L.H, et al., Plaintiffs,
vs. ARNOLD SCHWARZENEGGER, et al.,
Defendants. _____________________________________/

NO.CIV.S-06-2042 LKK/GGH

SECOND REPORT OF THE SPECIAL MASTER ON THE STATUS OF
CONDITIONS OF THE STIPULATED ORDER
Background The Plaintiffs in this case filed their Complaint with the Court on September 13, 2006. The Court certified this case as a class action by Order dated February 28, 2007. The Defendants are state agencies and state officials responsible for the policies, procedures, and practices by which California conducts juvenile parole revocation proceedings, to include: the Board of Parole Hearings, the Division of Juvenile Justice, the Juvenile Parole Board, and the California Department of Corrections and Rehabilitation. On September 19, 2007, the Court granted partial summary judgment in favor of Plaintiffs, holding that California's juvenile parole revocation system, by failing to provide a timely probable cause hearing, violated the due process rights of the Plaintiff
1 PDF created with pdfFactory trial version www.pdffactory.com

Case 2:06-cv-02042-LKK -GGH Document 543 Filed 05/28/09 Page 2 of 46
class as those rights were described in Morrissey v. Brewer. On January 29, 2008, the Court held that Defendants' failure to appoint counsel for all juvenile parolees violated the due process rights of the Plaintiff class, according to precedent set in Gagnon v. Scarpelli. In the same order, the Court also found that Defendants' policies and practices violated the Americans with Disabilities Act (ADA) and the Rehabilitation Act. The Court ordered the Defendants to:
(1) begin appointing counsel to represent juvenile parolees at parole revocation hearings no later than February 15, 2008, and to provide that counsel with access to confidential contact space and the necessary files sufficiently in advance of the hearing to allow adequate preparation,
(2) allow parolees to obtain counsel of their own choosing, who shall be able to represent clients under the same terms as appointed counsel, and Defendants are to notify the parolee’s counsel of record or public defender when a hold is placed,
(3) ensure effective communication and provide necessary accommodations, and (4) develop sufficiently specific policies and procedures to ensure continuous
compliance with all of the requirements of the American with Disabilities Act during revocation proceedings. Chase Riveland and Virginia Morrison were appointed as Special Master and Deputy Special Master, respectively, on May 22, 2008. The parties, on June 13, 2008, submitted a Stipulated Motion for Preliminary Approval of Class Settlement. The Court granted the motion on June 17, 2008 and approved a Stipulation and Order for Permanent Injunctive Relief on October 7, 2008 (hereafter “Stipulated Injunction”).
2 PDF created with pdfFactory trial version www.pdffactory.com

Case 2:06-cv-02042-LKK -GGH Document 543 Filed 05/28/09 Page 3 of 46
Special Master Activities The Special Master continued to assist the parties in a variety of negotiations and dispute resolution. The team attended trainings for institutions and Board staff; observed Defendants’ task force; and participated in all-parties’ information update meetings. They met with the Farrell Special Master, and occasionally consulted with her, to gain a preliminary understanding of the remedies’ intersection and impact on each other. To monitor in the first quarter of 2009, the team observed hearings conducted by six hearing officers and observed on-the-job training for two additional hearing officers. This involved 16 probable cause hearings, three in-custody revocation hearings, three “not in custody” revocation hearings, a revocation extension hearing, and one exit interview. The team did not attempt to observe the service of notice on any parolees. These reviews took place at N.A. Chaderjian, Preston, and Heman G. Stark youth correctional facilities and San Francisco, Los Angeles, Marin, and Santa Rita county jails. In addition to the revocation hearings seen in person, the Mastership analyzed materials for another 20 hearings, most of which included recordings. During the site visits, the team observed and interviewed six board coordinators and two institutions staff responsible for revocation extensions. The team also visited three parole units, interviewing eight parole agents and supervisors. They met with members of the attorney panel (“CalPAP”), interviewing two leaders, a staff attorney, and seven panel attorneys. The team also observed two “officers of the day” conducting their duties and read the manual for that position.
3 PDF created with pdfFactory trial version www.pdffactory.com

Case 2:06-cv-02042-LKK -GGH Document 543 Filed 05/28/09 Page 4 of 46
Scope and Approach This report discusses observations and activities spanning October 2008 through April 2009, collectively referred to as “the Round.” References to the Special Master’s activities frequently include the actions of a member of his team. Studies: For many of the requirements, the Special Master’s team conducted a study based on revocation packets, hearing documents, and recordings provided in Defendants’ monthly document productions, in combination with those same documents produced for the hearings observed during the team’s site visits. Since these were not randomly chosen and are a snapshot of a relatively short time, there are limitations on the representativeness of this sample. However, at about 10% of the total hearings since February 2009, this presents one portion of the implementation picture. CalPAP data captures some practices in the months of the Round preceding the February 2, 2009 implementation. During February, Defendants processed many cases initiated in previous months, applying the new procedures but recording them manually. At the same time, Defendants began processing cases with February hold dates and entering them in the data system. Since nearly all of those did not close until March, the Special Master’s examination of data reports generally spans March 1 through April 15, 2009. For certain questions, the team added, or substituted, revocation packets and hearing documents generated by running a revocation database report and identifying relevant cases by “drilling down” on that report. The length of the period captured varies according to data availability and questions examined. It is worth noting that, as with many new systems, there are various reasons to believe that data from the information
4 PDF created with pdfFactory trial version www.pdffactory.com

Case 2:06-cv-02042-LKK -GGH Document 543 Filed 05/28/09 Page 5 of 46
system cannot yet be relied upon as fully accurate. Printouts and their analysis, therefore, contribute to the compliance picture but the figures should be considered approximate.
Plaintiffs’ objections: in their objections to this report, Plaintiffs frequently asked the Mastership to emphasize that each element of the Stipulated Injunction is a requirement, that it is important to remedy each area not yet in compliance, and that each deficiency harms parolees. The Mastership declines to adopt this stance in this report. It is inarguable that each Stipulated Injunction component is important and that Defendants must demonstrate compliance with each to be granted relief from this Court’s oversight; this need not be repeated throughout the document. Defendants also demonstrate an appreciation of these principles.
Notable Developments It is extraordinary that, in just over one year, the Defendants have implemented a system with the following features:
• Provides notice of the charges against the parolee and his rights in the proceedings, and has halted the practice of taking waivers and written admissions without counsel
• Ceased use of temporary detentions and rescinded the related regulation • Conducts supervisory review of probable cause and the charges, and
parole staff have gained more responsibility to resolve lower level violations • Appoints attorneys in all revocation actions proceeding to hearing, and provides them materials necessary to prepare a defense and in time to meet with the client at least two days ahead of hearings, as well as private conditions in which to meet • Calculates a return to custody assessment, which includes a probable cause assessment, and which serves as an offer of disposition a parolee and attorney can consider and accept without requiring a full revocation hearing
5 PDF created with pdfFactory trial version www.pdffactory.com

Case 2:06-cv-02042-LKK -GGH Document 543 Filed 05/28/09 Page 6 of 46
• Holds probable cause hearings and revocation hearings with more legally sound violation reports, more evidentiary protections, structured decisionmaking for penalties up to a maximum of one year, and a written record
• Applies a remedy for revocation hearings held beyond the required date and provides an appeal system and a grievance procedure for ADA concerns
• Converted the terms of revoked parolees in-custody to a date certain • Initiated a system of hearings for parolees’ in-custody misconduct with a
similar due process structure • Practices intended to identify and accommodate those with disabilities or
effective communication needs • Posted and distributed notice of the material terms of the settlement • Initiated an extensive, complex information system
The Stipulated Injunction required full implementation “no later than 180 days of the signing of this Stipulation, and no later than December 15, 2008.”1 As early as October 2008, Defendants informed Plaintiffs that they would not be able to fully implement by December, and requested an extension of the deadline to February 2, 2009. They stated that the extension would allow them to complete more policy and labor negotiations and to roll out new procedures in a coordinated fashion. After further negotiations with Plaintiffs, Defendants agreed to implement some specific aspects of the Stipulated Injunction by December 15, 2008, notwithstanding their proposed delays. Defendants phased in some practices throughout 2008, and they commenced implementation of all systemic reforms by February 2, 2009, with the exception of training some Parole staff during early February. A great majority of the remedy’s
6 PDF created with pdfFactory trial version www.pdffactory.com

Case 2:06-cv-02042-LKK -GGH Document 543 Filed 05/28/09 Page 7 of 46
features are now in place, although the execution of some components remains challenging.
Policies and Regulations The parties agreed that within 90 days of the parties signing the Stipulated Injunction, and no later than September 15, 2008, the Defendants were to develop sufficiently specific draft policies, procedures, and plans to:
• ensure that revocation proceedings are in continuous compliance with all of the requirements of the Constitution and applicable statutes, • address a method for accurately tracking the timeliness of hearings and other steps in the parole revocation process, • include the timely provision of accommodations for juvenile parolees’ disabilities and effective communication needs, • cover not in custody hearings, dual commitments, and parole exit meetings; and • address such disputed issues as telephonic probable cause hearings, circumstances constituting good cause for delayed hearings, and remedies for untimely hearings.
Policies and procedures were not completed by the deadline, but the parties had worked diligently through that time to formulate and negotiate these documents. During the current Round, work continued along two tracks. Much of what is necessary has been captured and is in practice, but more remains to reach agreement, to generate sufficient detail, and to finalize the documents. The pace slowed as compared with earlier times, but it was adequate. Plaintiffs vehemently contest this assessment, pointing to several delays and the potential for parolees being treated differently if staff do not have a consistent understanding of policies.
7 PDF created with pdfFactory trial version www.pdffactory.com

Case 2:06-cv-02042-LKK -GGH Document 543 Filed 05/28/09 Page 8 of 46
On one track, Defendants’ divisions considered and moved through approval processes the policies and procedures as formulated in November 2008.2 Three of them – revocation extension, exit interviews, and attorney standards – reportedly were finalized and distributed in April 2009.3 The great majority of the policies and procedures are found in a comprehensive revocation process document, one for each of the two divisions principally involved. Those documents remain in negotiation internal to Defendants. In the meantime, Defendants are expecting staff to use most or all of the features of these draft documents and 2008 interim procedures governing reasonable accommodations and effective communication. While official policies are not in place, Defendants have endeavored to put the components in place through memoranda, trainings, conference calls, and other communication methods.
The policies and procedures presently in use were implemented over Plaintiffs’ objection to some components. The parties intend to continue to negotiate those aspects, and they reached agreement on a significant number of changes in December 2008. Plaintiffs drafted a stipulation capturing those agreements and it remains to be finalized. A relatively small number of disputes remain, though they concern important aspects of the Stipulated Injunction’s terms. Parties’ efforts continued through the Round to identify those issues, advance negotiations, and specify resolution processes for the issues seen as being at impasse.
The parties have not collectively determined whether all necessary policies are in process or completed, though Defendants have identified only telephonic probable cause hearings as an outstanding issue requiring a policy.4
Notice of terms: Defendants reportedly posted initial and final notices on their
8 PDF created with pdfFactory trial version www.pdffactory.com

Case 2:06-cv-02042-LKK -GGH Document 543 Filed 05/28/09 Page 9 of 46
website and in areas accessible to parolees. The Special Master observed that the practice of providing a handout to parolees facing revocation is also beginning.
Regulations: In August 2008, Defendants indicated they had undertaken the mandated review of regulations and had identified nearly 100 requiring change.5 Since that time, they have indicated in monthly document productions that a list has not yet been prepared. Defendants have not begun to generate new regulations as of yet.6 The parties have agreed to commence negotiations regarding this issue.
Stipulated Injunction Requirements A number of the requirements consist both of substantive due process and of procedural due process, including an element of timeliness. With tracking available through the attorney panel administration and Defendants’ newly implemented information system, some measurements are possible.7 However, as with all new systems, the accuracy and consistency of data entry is limited in this early period, so figures should be viewed as approximate. Parole Agent and Supervising Parole Agent conference within two business days (¶ 27): Defendants’ revocation database shows that 89% of these interactions – or about 123 of 139 cases -- have been timely.8 The Special Master did not learn anything further about this practice. Notice of charges and rights within three business days (¶ 28): Early in the Round, Board Coordinating Parole Agents served the parolees; in recent months, this became the responsibility of the agent of record. One agent reported
9 PDF created with pdfFactory trial version www.pdffactory.com

Case 2:06-cv-02042-LKK -GGH Document 543 Filed 05/28/09 Page 10 of 46
easy access to parolees in the three counties in which he works; others encountered multiple barriers when attempting to serve in Los Angeles County Jail. The Special Master did not observe any service as it took place.
To satisfy due process, the notice must contain a summary of the conduct underlying the charges sufficient for the parolee to prepare a defense. In the notices the Special Master reviewed, the summary ranged from reasonable to very good in about two-thirds of the cases. The remaining one-third did not describe the conduct.9 In a similar vein, two parolees filed appeals alleging that incomplete notice of the charges made them unable to defend against their charges.10 It will be important for Defendants to improve this practice.
In the Special Master’s review, the service documents were all present in all but one case, suggesting that the parolees received the charges, with the limitations noted supra, and a description of their rights. The third form memorializes efforts to identify disabilities; these were more problematic, but will be discussed infra.
It appears that a large majority of notices were served timely. Both a study by CalPAP11 and the Special Master’s analysis of revocation database reports found about an 80% success rate.12 A different study of individuals indicated a slightly higher compliance rate.13
The late service in two of these studies occurred only one to two business days beyond the requirement.
In yet another examination, the Special Master found that fewer genuinely were late, so the success rate may be higher still. The review narrowed the number of late cases to four parolees who were served late or were overdue for service – ranging from 2 days
10 PDF created with pdfFactory trial version www.pdffactory.com

Case 2:06-cv-02042-LKK -GGH Document 543 Filed 05/28/09 Page 11 of 46
to 2½ weeks as of the time of analysis – and another three may not have been served.14 These few failed cases are of a troubling nature. Two things are important to note about this analysis: while it indicates that actual practice could be as high as 93 to 96%, in most circumstances, Defendants would not get credit for this because they did not demonstrate it. By not documenting their actions, Defendants create the misimpression of deficiencies. More consistent use of the tracking system will move them toward resolution of this lawsuit much more quickly. .
Non-acceptance of written admissions to a violation of parole, or waivers of hearing rights or the right to counsel, made prior to the juvenile parolee meeting with counsel (¶ 17, 31):
Defendants report that they issued staff instruction on these points in April 2008 and there is evidence of this being reinforced toward the end of the first Round. Defendants believe these practices have ended.15
On the other hand, the parolee’s parole agent serves notice of the violation, investigates, and produces the violation report. This can occur before counsel is appointed,16 and the reports include parolee statements, if made. The parties disagree as to whether this practice is permissible under the Stipulated Injunction. This is an issue that should be examined further during the coming Rounds.
Requirements concerning attorney representation Provision of counsel during revocation proceedings (¶ 15): Defendants report that
attorneys have consistently been appointed for all parolees taken into custody on a new
11 PDF created with pdfFactory trial version www.pdffactory.com

Case 2:06-cv-02042-LKK -GGH Document 543 Filed 05/28/09 Page 12 of 46
parole hold since February 2008. There is no system to detect whether any appointments are overlooked. CalPAP administered the attorney panel in 2008. The contract was subsequently put out to bid and awarded to CalPAP.
Timely appointment of counsel (¶ 16):
There is poor timeliness in DJJ providing the information necessary to appoint attorneys. Printouts and a sample both showed only 60% of packets were provided in time for the requirement.17 .
Both CalPAP and Plaintiffs are concerned that this compresses the time available for administrative duties and for attorney preparation. They note that CalPAP must redact and otherwise prepare the revocation packet, secure an attorney, and schedule an attorney-client interview. Plaintiffs and CalPAP are concerned that the reduced time left to the attorney poses risks to completing the tasks necessary to preparing a defense and to the possibility of an expedited hearing if it is appropriate.
In the cases examined, the delay typically was one to two days, with a handful delayed by three days and one not sent for a month. Attorneys told the Special Master they typically receive documents several days before the probable cause hearing and meet with clients two to three business days ahead. All appeared to know their cases well; several discussed having multiple contacts with their clients and telephoning witnesses, parole agents, and public defenders. When asked, each rejected the idea that the amount of time available to them had made it difficult to prepare in any case to date.
It is the Special Master’s opinion that the deficiencies in meeting this requirement, while undoubtedly more difficult for administering the attorney panel, so far have not
12 PDF created with pdfFactory trial version www.pdffactory.com

Case 2:06-cv-02042-LKK -GGH Document 543 Filed 05/28/09 Page 13 of 46
negatively impacted the parolees’ representation. Timely provision of packets, however, is a requirement, and Defendants should continue to work to improve these low compliance numbers.
At the time of attorney appointment, provision of date, time, and location of the hearing (¶ 16):
CalPAP reports that it is now provided these pieces of information at the same time it receives the packets, a very good advance.
At the time of attorney appointment, provision of a copy of all the evidence on which the State intends to rely or which may be exculpatory; evidence not provided with at least two days’ notice shall be excluded unless the state shows good cause (¶ 16, 19):
Interviewed attorneys indicate that they consistently receive all expected documents and do not encounter late-produced evidence. Some DJJ staff indicated that evidence missing from packets was a problem in February; one felt this had been resolved, while another had ongoing concerns.
The Special Master observed one probable cause hearing in which a pivotal piece of evidence had not been provided to counsel. The hearing officer permitted him time to review the evidence and make adjustments, contrary to the requirement to exclude such evidence.
Two hearing officers gave similar, problematic advice in their opening statements at revocation hearings – that they would allow time to review such evidence if the issue
13 PDF created with pdfFactory trial version www.pdffactory.com

Case 2:06-cv-02042-LKK -GGH Document 543 Filed 05/28/09 Page 14 of 46
arose. There was no surprise evidence in those hearings. Defendants have agreed to correct this approach, which would be contrary to the Stipulated Injunction if exercised.
At the time of attorney appointment, provision of relevant educational, mental health and disability identification and source documents (¶ 16):
This is one of the most controversial aspects of the implementation to date. Defendants reportedly conducted a comprehensive review of files with the intention of summarizing disability information for lawyers and other users of the files. Defendants first designed a summary form during the previous Round, and revised it to capture substantially more detail in response to concerns from CalPAP and Plaintiffs. While Plaintiffs support such an effort, they objected strongly when the review went forward before negotiations had been completed concerning the necessary components of review and recording, and underlying documents to be provided to attorneys and Board staff.
CalPAP and Plaintiffs assert that many more documents and pieces of information are necessary to inform decisions about reasonable accommodations and effective communication. CalPAP has observed that it is common to receive some source documents in the revocation packets, but the types of documents are highly variable.
The parties have requested that the Mastership conduct a fact-finding hearing on this issue.
Right to be represented by counsel of choice; process for timely notifying of the counsel of record of the imposition of a parole hold (¶ 18):
14 PDF created with pdfFactory trial version www.pdffactory.com

Case 2:06-cv-02042-LKK -GGH Document 543 Filed 05/28/09 Page 15 of 46
Defendants assert that they began this process within the time specified in the Stipulated Injunction.18 The Special Master’s review determined that a notification form is in use, but there was evidence of it in only a minority of cases.19 It appears this is one of the lowest areas of compliance.
Attorney will be informed of Return to Custody Assessment by the 10th business day after the hold (¶ 30):
CalPAP’s 10-case sample found 80% of these assessments were provided timely.20 The late notifications were delayed by one business day.
Counsel to meet with client at least 24 hours prior to the probable cause hearing (¶ 16):
In all probable cause and revocation hearings observed by the Special Master, the hearing officer inquired about the parolee’s ability to confer with his or her attorney. Recordings generally reflected this inquiry, as well. In each instance, the parolee and attorney reported contact sufficient to review the charges and documentation. The meeting date was often specified, and was always one day or more before the hearing. Interviewed attorneys indicated it was typical to meet with clients two to three business days ahead of the hearing.
Adequate time for representation; reasonable access to clients and files; confidential phone calls and space in which to meet; observing staff cannot participate in proceedings (¶ 20, 23):
15 PDF created with pdfFactory trial version www.pdffactory.com

Case 2:06-cv-02042-LKK -GGH Document 543 Filed 05/28/09 Page 16 of 46
All interviewed attorneys described having adequate time for representation, having received written materials three to five days in advance. Most had not sought out the clients’ field files in LH, but did not anticipate barriers based on cooperation they have received to date. Attorneys described private locations for meetings and easy access to clients in several locations, though conditions are not yet known at all locations in the state. A few locations posed significant barriers. In particular, more than one attorney described multiple-hour waits as common at Santa Rita County Jail, despite following advance procedures and reasonable cooperation from line staff. One example of nonconfidential phone calls arose, where the client at the DJJ young women’s facility sometimes had staff in the room, though the attorney perceived that the client found them beneficial. Those staff did not subsequently participate in proceedings.
Return to custody assessment within nine business days (¶ 29): The Special Master observed one hearing officer conducting return to custody assessments. This was done thoroughly, considering the elements of the violations and naming the facts that supported each element before determining whether there was probable cause to proceed. When necessary, he reviewed reference material for the penalty ranges associated with the charges. Plaintiffs, citing examples, are concerned that some hearing officers have not always used the accurate penalty ranges when making return to custody assessments. All hearing officers perform this task in rotation, and it will be important to determine whether these good practices are uniformly in use. There were a small number of cases; the hearing officer reported that he was completing all the cases that had arrived that day, and that this was common practice.
16 PDF created with pdfFactory trial version www.pdffactory.com

Case 2:06-cv-02042-LKK -GGH Document 543 Filed 05/28/09 Page 17 of 46
Defendants’ data show that this assessment was timely in 91% of the 85 cases reviewed.21 The few late cases were completed a short time later, and only one would likely have delayed a timely probable cause hearing or caused the attorney and client to prepare a defense without it.22
Probable cause hearing requirements Expedited probable cause hearings (¶ 26): There have been no requests for expedited probable cause hearings.23 Probable cause hearings within 13 business days after the hold is placed, including written bases for findings (¶ 32, 40): 24 Nature of Hearings While many hearing officers oriented parolees to the process and all conducted an ADA review, there were some limitations to their methods; these are described more fully in the discussion of revocation hearings, infra. Hearing officers described the probable cause standard, with a few exceptions, and all asked the parolees if they had read and understood the reports containing the accusations against them. All read the charges and the factual basis, and took pleas.25 Hearing officers maintained a respectful, open atmosphere in which parolees and attorneys could offer a defense freely. The hearing officers were open to new evidence, sometimes accepting letters or phone calls from parole agents, as well. For the most part, hearing officers made probable cause findings based on sufficient evidence, and articulated their bases well. The treatment of whether elements were proven was more mixed; one hearing officer found there was no probable cause
17 PDF created with pdfFactory trial version www.pdffactory.com

Case 2:06-cv-02042-LKK -GGH Document 543 Filed 05/28/09 Page 18 of 46
based on the failure to show an element, but another did not seem to detect that an important element had not been proven. The bases for findings are not always written in the hearing record.
The disposition portion of the hearing was taken seriously, and commonly consumed about half of the hearing time. For more detail, please see the discussion of revocation hearings, infra.
Timeliness A review of Defendants’ database indicates that 86% of 97 recent probable cause hearings were timely.26 At least some late cases were attributable to delays after extradition and a week’s rescheduling after the youth was out to court.27 There was also one youth whose hearing was initiated timely but was suspended for mental health reasons.28 CalPAP’s 10-case sample found 56% of the probable cause hearings were timely, but the rest were held only one business day late.29
Definition of presumed prejudice (¶ 32): The parties have negotiated this point but remain in disagreement at this time.
Mechanical restraints at hearings (¶ 46): The Stipulated Injunction requires Defendants to develop policies, procedures,
and training concerning restraints that are consistent with the ADA, the Rehabilitation Act, the due process clause, and Title 15 California Code of Regulations section 4034.4.
18 PDF created with pdfFactory trial version www.pdffactory.com

Case 2:06-cv-02042-LKK -GGH Document 543 Filed 05/28/09 Page 19 of 46
The Stipulated Injunction prohibits any policy requiring universal use of restraints in revocation proceedings. There is no agreement on these policies to date.
Defendants currently instruct staff to make a judgment based on violence or risk of escape shown in behavior on parole, institutional behavior, and commitment offense; Plaintiffs strenuously object to reliance on the latter element.30 Defendants also defer to the policies of non-DJJ institutions – some of which require universal use of restraints, contrary to the terms of the Stipulated Injunction -- when proceedings are held there. Plaintiffs object to these practices, asserting that the decision should be made based solely on recent indicia of violence or escape risk.
The Special Master observed restraints practices at seven sites, and learned staff’s experiences in many more locations. They indicated that Los Angeles, Ventura, San Luis Obispo, Santa Barbara, Lake, Fresno, and Santa Rita county jails; Bob Wiley Detention Center; and all CDCR adult institutions require universal restraints. They named only DJJ facilities and San Francisco and Marin county jails as allowing DJJ to exercise discretion.31 Even in those locations, all parolees were restrained during five of six Special Master visits. One staff member reported he does not restrain almost anyone in DJJ facilities; another could not remember an unrestrained parolee there.
Most troubling is the reported policy of universal use of restraints at adult institutions within CDCR. Since the requirement is that “Defendants shall not use any blanket policy of requiring mechanical restraints for all juvenile parolees in parole revocation hearings” [emphasis added], and CDCR is a Defendant, it appears that practice must be changed to conform to this court order.
19 PDF created with pdfFactory trial version www.pdffactory.com

Case 2:06-cv-02042-LKK -GGH Document 543 Filed 05/28/09 Page 20 of 46
Requirements related to revocation hearings: Final revocation hearing on or before 35 calendar days after the parole hold is placed (¶ 33):
In assessing this requirement, there are a number of considerations. The system must consistently provide timely hearings to the great majority of cases. It must also function to provide hearings timely to special populations, sometimes small groups whose circumstances dictate counting timelines differently or suspending and resuming proceedings once conditions have been met. In operation, the hearings must provide due process, satisfying questions such as fairness, opportunity to be heard, elements of the violation proved sufficient for the applicable standard, and consideration of appropriate sanctions.
Nature of Hearings Defendants have made significant advances in incorporating due process into revocation hearings, though breakdowns occur periodically. Hearing officers take this obligation seriously and they approach the new procedures thoughtfully. Several practices show signs of becoming routine, while others will need to be strengthened before they are effective.32 Hearings were conducted in conference rooms and offices suitable to the task in all locations the Special Master visited. In these facilities, there was sound and visual privacy; conditions allowing communication; sufficient room for participants, computers, and files; and reasonable access for witnesses if applicable. Defendants’ staff reported similar conditions in other facilities in which they work, about three times as many as the Special Master visited.
20 PDF created with pdfFactory trial version www.pdffactory.com

Case 2:06-cv-02042-LKK -GGH Document 543 Filed 05/28/09 Page 21 of 46
Hearing officers set a respectful tone and created conditions conducive to parolees, counsel, staff, and witnesses participating. Although all hearing officers were clearly interested in ensuring the parolees’ understanding, some practices were less effective for accomplishing this. Many oriented the parolees well to the purpose and procedures of the hearing, but this did not occur at all in about one-third of the hearings. Sometimes the pace of speech, or closed-ended questions suggesting a “yes” answer was desired, created the risk of missing that a parolee did not understand. One excellent practice was to invite the parolee to describe his understanding of the hearing, and adding details and corrections if necessary.
The conduct of assessments for disabilities and effective communication needs left a similar impression. It is a well-established practice for hearing officers to review a screening form and to ask a series of questions to encourage parolees and attorneys to disclose any parolee needs. Hearing officers use a helpful, conversational style, and some ask in more detail than others, but they generally cover the conditions that might pose an obstacle to effective participation. As with the orientations, speed and closed-ended questions may have created some missed opportunities to identify needs. Plaintiffs observed one such example, where the parolee had a much lower documented reading capacity than his responses to questions indicated, and this was not discovered during the hearing;33 the Special Master observed this occurring on a few other occasions. As one of several tools, hearing officers ask attorneys if they stipulate that the parolees’ ADA needs have been met to date; Plaintiffs strongly object to this practice.
In general, hearing officers’ approach to the ADA review would tend to serve those inclined to self-report, but did not appear to independently assess functioning and
21 PDF created with pdfFactory trial version www.pdffactory.com

Case 2:06-cv-02042-LKK -GGH Document 543 Filed 05/28/09 Page 22 of 46
understanding. The Special Master observed occasions when a hearing officer identified or adjusted well to a disability that surfaced later in the hearing, or a hearing officer used multiple methods to explain when a parolee appeared confused. These will be good practices for the other hearing officers to develop as well.
All hearing officers reviewed the parolees’ rights to some extent. Between them, they covered the landscape of asking whether the parolees had read and understood the reports accusing them, had met with counsel, and whether anyone had made promises about the hearing’s outcome, as well as noting the right to a neutral hearing officer, to a copy of the recording, and to appeal the decision. It was rare for a hearing officer to touch on all of these topics.
Hearing officers did not always remember to swear in the parolees and parole agents. They consistently read each charge and took pleas. Laying the foundation for the charges will need to be done more rigorously in the future; it appeared that some key documents, or some of their contents, were used without anyone testifying to them. Substitute parole agents or their supervisors commonly testified in place of the agent of record; it appeared the state routinely subpoenaed police officers and witnesses, an important improvement.
The practice as to objections was mixed. The most common objection was that the hearing was held beyond timeframes. In each such case, the hearing officer gave the time credit remedy if the outcome was a return to custody.34 This is an important advance, and it is to Defendants’ credit that it is well-established this quickly. In a few cases, the attorney argued for dismissal on this basis, and the hearing officer thoughtfully explored whether there was prejudice before concluding there was not and denying the request.
22 PDF created with pdfFactory trial version www.pdffactory.com

Case 2:06-cv-02042-LKK -GGH Document 543 Filed 05/28/09 Page 23 of 46
Attorneys also objected to prejudicial information, the veracity of an unsigned document, invalid special conditions of parole, duplicative charges, the use of the matrix, failure to honor the 50-mile rule, and insufficient evidence to prove an element or a charge. While some of these objections were handled thoughtfully, there were also examples evidencing a lack of understanding or a failure to rule on the objection. Additionally, it appears that hearing officers do not always document the objections and their rulings. Each of these aspects should be addressed.
The area of confrontation rights was the most problematic. When objections arose, hearing officers made good faith attempts, but have not mastered the area. The balancing test required by U.S. v. Comito was only carried out on one occasion in the cases the Special Master observed. More commonly, hearing officers worked with only some of the factors, blended their reasoning with other concepts such as hearsay exceptions and insufficient evidence, or failed to rule. Hearing officers will benefit from more guidance in this practice. Additionally, the Special Master observed a few instances in which attorneys did not object to hearsay that was central to the state’s case; indeed, one hearing officer commented that he had heard many such objections early in implementation but they had since been greatly reduced. Attorneys note, however, that there are sometimes tactical reasons not to raise this objection.
With some frequency, hearing officers’ reasoning did work to the benefit of parolees. They entertained seriously motions to dismiss charges for insufficient evidence, and granted several in the cases the Special Master reviewed. Some hearing officers worked with elements of the violations; most could use more instruction in this discipline. It was not always clear what evidence was admitted or excluded, and what
23 PDF created with pdfFactory trial version www.pdffactory.com

Case 2:06-cv-02042-LKK -GGH Document 543 Filed 05/28/09 Page 24 of 46
evidence served as the basis for hearing officers’ conclusions. Both the findings of sufficiency of evidence, and the bases for findings of good cause on the violations, need to be made more fully and consistently.
Attorneys and clients were allowed to consult privately during the hearings. Parolees were permitted a broad ability to testify and to offer witnesses and documentary evidence. On a few occasions, the state made an error and did not subpoena the parolee’s witnesses; the response was handled well in one case, dismissing the charges because of the unfair effect on the parolee who had been in custody substantially longer than 35 days. It was very common for parolees to admit some or all of the charges on their own initiative or in conjunction with a court conviction, so most parolee evidence was offered in the disposition phase.
One due process issue likely to arise is the effect of mental illness on parolees’ participation in proceedings. Defendants have written a policy calling for suspending hearings if parolees appear unable to participate for this reason, and facilitating treatment and a return to hearing. Plaintiffs have objected, asserting that all such parolees should be released to community treatment because DJJ facilities are currently unable to meet their treatment needs. This issue remains in negotiation.
In the meantime, the Special Master observed a few promising indications in this regard. During one hearing, a parolee on the mental health caseload refused to attend his hearing.35 All staff approached this thoughtfully. They held the hearing in abeyance while the attorney attempted contact in the parolee’s housing unit. They consulted with his psychologist to gather his opinions about the parolee’s stability and whether his refusal might be driven by his illness. They collectively considered the best course of action. All
24 PDF created with pdfFactory trial version www.pdffactory.com

Case 2:06-cv-02042-LKK -GGH Document 543 Filed 05/28/09 Page 25 of 46
involved were open, flexible, and collaborative in examining the parolee’s best interest and how best to gather necessary information. Although it appeared the parolee was not decompensated, they made a plan to suspend the hearing for a short period to have his treating clinicians confer and assess him, and the coordinator said the hearing could be put back on calendar in a few days if they determined the parolee was capable of participating.
Additionally, the Special Master’s team spoke with another CalPAP attorney about this type of client. While he had not represented someone in this condition, he said he would ask for a suspension and he volunteered that he would make a direct verbal referral to clinical staff; he knew the mechanisms to reach them in DJJ and in county facilities. While there is much more to learn and negotiate, this conversation and the case described above are both encouraging signs about the handling of the severely mentally ill in revocation proceedings.
As to the remaining aspects of revocation hearings, the disposition phase is taken very seriously. In both probable cause and revocation hearings observed, fully half of the time typically was devoted to the disposition. Hearing officers elicited detailed information and considered many arguments supporting release or different types of programming. This phase often took on the tone of a treatment planning session, with all participants collaborating.
Plaintiffs have expressed concern that the maximum return to custody would frequently be employed. This did not occur in the Special Master’s review; significant results of 30 cases36 can be summarized as:
• Continue on parole – 40% • Drug program in the community – 10%
25 PDF created with pdfFactory trial version www.pdffactory.com

Case 2:06-cv-02042-LKK -GGH Document 543 Filed 05/28/09 Page 26 of 46
• Bottom of the range penalty – 20% • Top of the penalty range – 2 cases • 12-month penalty – 1 case • Deviation from the range – only 1 case; it deviated downward
Defendants’ staff are required to consider alternatives to incarceration at different steps in the process. Database printouts indicate that 23% to 36% of 99 revocation actions were sent to alternatives by Parole staff.37 The information system shows hearing officers sometimes recording reasons they did not choose alternatives, so there is clearly some consideration of the issue. Printouts capture no referrals to alternatives by Board staff, but information systems specialists determined that the report was not functioning accurately38 and Defendants note that it is much more common to record “continue on parole” as the disposition when choosing alternatives. If the cases summarized above are representative, about half of the youths appearing at hearings are not returned to custody. Although the picture is not fully clear, it appears that practice concerning alternatives to incarceration is reasonably good..
Defendants do conclude revocation hearings with a written record. These were handwritten for all cases initiated before February 2009, and in the event that the hearing officer cannot access the information system during the hearing. Unfortunately, interviewed staff reported that the internet has been inaccessible, both by wireless technology and wired alternatives, in at least one-third of the locations in which they worked. With the complexity of a revocation hearing, handwritten records are cumbersome and carry a high risk of an inaccurate or incomplete record, and of not providing copies to counsel or the parolee.
26 PDF created with pdfFactory trial version www.pdffactory.com

Case 2:06-cv-02042-LKK -GGH Document 543 Filed 05/28/09 Page 27 of 46
Examples of each of these issues was apparent in both handwritten and electronic records. Almost half of the records reviewed were inconsistent with the recording or the Special Master’s observation in significant ways. They would omit or add substantial detail regarding evidence or reasoning, or fail to record events such as objections. Although Defendants have described a procedure to enter the contents of handwritten orders into the permanent electronic record, Plaintiffs have encountered instances when this did not occur.
The systems for providing copies to parolees varied; some parolees remained in the room or a nearby holding cell and a copy was provided immediately, while other locations relied on the agent, the attorney, or a circuitous route of FAXes and hand transmissions. CalPAP reported occasional lapses in copies reaching attorneys.
In summary, Defendants have taken important first steps in establishing revocation hearings that provide due process. Many of the necessary components are in place and what remains is for them to be used more consistently. The systems are designed well and are operating moderately well. More training and guidance will be necessary for several key principles.
This level of progress is to be expected. Where staff are not fully versed in all policies, they have easy access to reference materials in hard copy, some online access, and the ability to consult among their small group. Follow-up training has been provided, and more is planned. This is a reasonable start to a complicated process.
27 PDF created with pdfFactory trial version www.pdffactory.com

Case 2:06-cv-02042-LKK -GGH Document 543 Filed 05/28/09 Page 28 of 46
Timeliness To understand whether these hearings were timely, one must be able to assess the time to hearing for: • mainstream cases39 completed within 35 days • mainstream cases pending and still within 35 days • extradition cases handled according to the LH standards calculated from
arrival in California, rather than hold date – completed and pending • activated optional waiver cases, completed and pending • hearings held while the parolee is not in custody and within 60 days after
notice service -- completed and pending • postponed cases
There have been exceptional gains in the timeliness of revocation hearings. Very few were held within 35 days during the first five months of the Round – a total of 7%.40 Those hearings were most typically held in two months, with the longest times to hearing at four months.41 The Special Master cannot practically determine whether there was good cause for any of the late hearings.
Once Defendants fully implemented LH procedures, however, timeliness jumped to 44% for the 18 cases heard.42 Indeed, for cases initiated from February 2009 on, compliance is at 100%. Printouts show two cases late when they were closed and two pending cases as late, but on closer examination, none were late; these involved optional waivers or the hearings were held not in custody and within those timeframes.43 Likewise, CalPAP found full compliance in a small sample44 and its monthly tracking showed that February- and March-initiated cases were all heard timely with one exception heard one day late.45
At the same time, the number of revocation hearings reduced steadily from 86 in October 2008 to 18 in March 2009.46 This may suggest that Parole staff are handling
28 PDF created with pdfFactory trial version www.pdffactory.com

Case 2:06-cv-02042-LKK -GGH Document 543 Filed 05/28/09 Page 29 of 46
more lower level violations, as the Stipulated Injunction authorized, and that more dispositions are being handled at the probable cause hearing.
Not in custody hearings: There have been eight not in custody hearings since February 2009, and all were held within 60 days.47 The Special Master observed two of these hearings, and all ADA and due process practices were consistent with those described for mainstream hearings, supra.
Extradition: It appears there have been five youth subject to extradition since February 2009.48 There are no clear patterns, and it appears Defendants have not yet worked out a system for handling them. Notification of return was not always communicated smoothly, both to staff and in the information system. Some notices of rights were served timely, some were not. Probable cause hearings tended to be late, but at least one was timely. None has gone to revocation hearing as of this writing.
Optional waivers: Parolees have begun to take optional waivers. A handful have both taken and activated them; the information system identifies these youth but does not yet capture the timeliness of their hearings. This will be important to address in future information system upgrades.
Parole revocation hearings to be held within a 50-mile radius of the alleged violation (¶ 36):
During training, staff were instructed to check the distance to a hearing site as one step in scheduling.49 Four revocation hearings were held in violation of the 50-mile limit during the Round, and another 23 occurred outside those limits but with the parolees’ agreement.50 CalPAP attorneys report that parolees make these decisions when there are
29 PDF created with pdfFactory trial version www.pdffactory.com

Case 2:06-cv-02042-LKK -GGH Document 543 Filed 05/28/09 Page 30 of 46
no witnesses or for strategic reasons; the attorneys do not perceive any pressure or coercion to take this waiver.51
There is some indication that DJJ refuses some parolee requests for a 50-mile waiver.52 Reportedly, this occurs because the State is concerned about legal and practical limits on its ability to compel attendance of its witnesses at a great distance.53 This has the potential of denying due process to parolees. Since the Mastership has limited facts on this issue, it will be one to examine in the future.
Evidence on the same terms as the state (¶ 33): The Special Master observed DJJ staff obtaining witness information at the conclusion of each probable cause hearing in which the parolee was continuing to revocation hearing. Parolees commonly presented witnesses, letters, and other evidence at revocation hearings, and no events have come to the Special Master’s attention in which a parolee was denied requested witnesses or documents.
Supplemental charges (¶ 34): To date, it appears that supplemental charges have been used minimally and there is insufficient information from which to draw conclusions.54
Definition of good cause for delay, remedy for timeframe violation (¶ 33): The parties have agreed to define good cause as “justifiable, legitimate and
unforeseeable reason for the delay, asserted in good faith and caused by factors that are beyond the control of the State.”55
30 PDF created with pdfFactory trial version www.pdffactory.com

Case 2:06-cv-02042-LKK -GGH Document 543 Filed 05/28/09 Page 31 of 46
They have also agreed that, for any revocation hearing timeframe violation, any return to custody will be reduced by the number of days the hearing is late. The Special Master has observed this remedy being applied in several hearings in 2009. The parties have not undertaken an examination of whether these remedies have been applied in all necessary cases. Only one event came to the Special Master’s attention in which it appeared inappropriate that the remedy was not employed; Defendants agreed to address this issue.56 The parties have agreed that prejudice is presumed, and the case will be dismissed, if, absent good cause, a revocation hearing has not been held by the 90th day after the hold.57
Not in custody hearings within 60 days after service and with all due process and ADA protections (¶ 45)
Since February 2, 2009, Defendants have held eight hearings “not in custody,” equally distributed between the northern and southern regions. This is about 8% of those violation cases that proceeded to some type of hearing.58 For all cases where timeliness could be determined, the hearings occurred timely.59
Requirements related to disposition Limiting return to custody time to one year except for willful program failure or
serious in-custody misconduct (¶ 35): Defendants assert that they began this process within the time specified in the
Stipulated Injunction.60 While terms given from December 2008 forward appear not to have exceeded one year, Plaintiffs argue that this requirement applied effective with the signing of the Stipulated Injunction and that there are parolees in custody whose terms
31 PDF created with pdfFactory trial version www.pdffactory.com

Case 2:06-cv-02042-LKK -GGH Document 543 Filed 05/28/09 Page 32 of 46
have exceeded one year and should be released. Resolution of this dispute is a priority for the parties, and they have requested the assistance of the Special Master in a more formal process.
Development of a matrix of ranges of revocation terms for specific violations (¶ 35):
Defendants have put in place the required matrix, which should help reduce the widely varying outcomes that have led to a perception that the system is unfair. During interviews, a number of stakeholders – including parole agents, coordinators, hearing officers, and attorneys – said they believe the matrix penalties are out of proportion to the offenses. Plaintiffs have also objected to the matrix, which they see as carrying more harsh penalties than in the adult system and in the previous juvenile system.
Release within three days if time has been served (¶ 38): Information concerning compliance or noncompliance did not come to the Special Master’s attention.
Requirements related to ADA and effective communication ADA and effective communications accommodation (¶ 23, 48, 50, 51, 53): DJJ put into effect interim policies that define disabilities and effective communication needs, and describe the duties of each type of involved staff to identify and document these needs and to provide reasonable accommodations; Plaintiffs argue that these policies fall far short of what is necessary to meet this obligation.61 While Plaintiffs correctly note that the Temporary Departmental Order has expired, Defendants
32 PDF created with pdfFactory trial version www.pdffactory.com

Case 2:06-cv-02042-LKK -GGH Document 543 Filed 05/28/09 Page 33 of 46
assert that the procedures have been established and continue to be carried out. The parties have sought the Special Master’s assistance in resolving the hotly contested disagreements concerning these policies and procedures, and other aspects of meeting ADA requirements.
As described in the first report of the Special Master, Defendants collect a wide range of information going to disabilities and maintain it in a variety of places. All acknowledge that this limits the ability of staff and attorneys to make use of the information, which carries the risk of not timely identifying and accommodating juvenile parolees. Defendants undertook to synthesize some of this information, an effort that represented progress and controversy, as discussed elsewhere in this report.
LH procedures require staff to review parolees’ files for disability and effective communication information, and to record and transmit it at various steps in the revocation process. Although a form has been institutionalized and was present in all records the Special Master reviewed, more often than not, the form was not completed correctly.62 In a few cases, the reviewer did not record disabilities readily available in the revocation packet, the principal purpose of the form. This process will need more attention.
Coordinating parole agents said they routinely carry assistive devices to be used in hearings for those with hearing and vision impairments. Policy calls for staff serving notices of rights to also carry these devices; the Special Master has not yet sought information about whether this occurs routinely.
An interpreter from an agency was present for a hearing the Special Master attended, another was apparent in ADA tracking, and staff noted while compiling a
33 PDF created with pdfFactory trial version www.pdffactory.com

Case 2:06-cv-02042-LKK -GGH Document 543 Filed 05/28/09 Page 34 of 46
witness list the need to arrange for one upcoming. Staff discussed with ease the system for arranging for outside language and sign language interpreters, though those asked could not recall a need for the latter. Institutions staff are accustomed to drawing on a pool of bilingual staff assistants for other purposes, with one person suggesting in interviews that staff assistants may serve as interpreters for revocation extension actions. It appears staff will need to be reminded that outside interpreters are a requirement for all revocation proceedings.
Identification and tracking (¶ 52): Prior to the first report of the Special Master, Defendants had begun identifying parolees with disabilities or effective communication needs. During this Round, they began a tracking process for probable cause and revocation hearings. Defendants express an intention to also track notice, attorney contacts, and revocation extension proceedings,63but this was not available as of late April 2009.
The tracking was designed so that a designated headquarters staff member reviewed all revocation packets at an early stage and entered relevant information for all parolees into a separate database; after hearings, that person also entered information about accommodations provided, if any. This database continued in use for all cases initiated before February 2, 2009; for subsequent cases, Defendants moved the tracking function to their main revocation database.64
Few needs were identified in the initial method. About 13% of the parolees with proceedings in 2009 were shown as having accommodation or effective communication needs;65 this is surprising since Plaintiffs note that Defendants’ own documents estimate a
34 PDF created with pdfFactory trial version www.pdffactory.com

Case 2:06-cv-02042-LKK -GGH Document 543 Filed 05/28/09 Page 35 of 46
50% need for effective communication assistance, and 80% of youths meeting ADA qualifying criteria, among the DJJ population.66
Interpreters were planned as the accommodation for two parolees and two others required glasses; for all others, the attorney was the sole accommodation listed. At the Special Master’s request, CalPAP reviewed revocation packets for three of the four parolees who were identified with learning disabilities.67 The packets contained some documents discussing the parolees’ disabilities, but none described the type of accommodation needed, or the type of disability so that an attorney could discern how to accommodate that parolee.68 Thus, one cannot determine whether the attorney was sufficient accommodation for these young men. Defendants acknowledge that the system needs to capture more detail about the types of accommodations provided.69
Defendants indicate that disability and accommodation information on current cases is being entered in the revocation database, but the system does not yet have related reporting capability. They anticipate that reports will be available with the next software upgrade, which is scheduled for release in early May.
Forms in alternative formats (¶ 55): During the Round, the parties exchanged information about possible accommodations for parolees with vision impairments. Otherwise, progress was not evident on this requirement.
Prohibition of discrimination in parole placements and referrals to services (¶ 27): Information concerning this requirement did not come to the Special Master’s
35 PDF created with pdfFactory trial version www.pdffactory.com

Case 2:06-cv-02042-LKK -GGH Document 543 Filed 05/28/09 Page 36 of 46
attention.
Develop an ADA grievance procedure (¶ 54): Interim procedures contain an ADA grievance procedure, including an obligation to inform parolees at specified steps, forms, individuals with specific responsibilities, and deadlines. The procedure provides for a review before the hearing in which the accommodation has been requested, an appeal if accommodations were not provided, and a new hearing within 15 days if such an appeal is granted. Defendants report receiving no ADA grievances in 2009.70
Development of an appeal process (¶ 43): Defendants assert that they began this process within the time specified in the Stipulated Injunction.71 There was evidence of appeals in use in February and March 2009.72 In all but one of the appeals reviewed by the Special Master were answered within 10 business days after receipt, as required.73 Each appeal response contained a detailed description of the sources reviewed, the claims, and the reviewer’s reasoning.
Defendants provided all appeals for the months of February and March 2009. These principally concerned the length of revocation terms; one appeal was granted, while the others were denied because the penalties were consistent with the ranges in the revocation matrix.74 Some appeals raised the LH timeframes, but were denied on the basis that the hearings preceded Defendants’ planned implementation date; Plaintiffs disagree with this basis for denial for any proceedings commenced on or after December 1, 2008.
36 PDF created with pdfFactory trial version www.pdffactory.com

Case 2:06-cv-02042-LKK -GGH Document 543 Filed 05/28/09 Page 37 of 46
An appeal based on the state’s failure to subpoena the parolee’s witness, and holding the hearing outside the 50-mile limit, was granted. Four appeals also discussed time calculation and were denied or referred to the responsible agency, and two felt the hearing officer was biased. One appeal alleged the possibility of a mental disorder underlying the violation behavior. Two parolees alleged incomplete notice of the charges leading to an inability to prepare a defense; one of these was incorrectly handled as a claim of insufficient time to prepare. Only one of all of the appeals above was granted.
Defendants are also conducting a system of decision review, which serves some useful functions but is problematic in operation. Defendants indicate that they have a policy governing this practice, though its terms remain disputed between the parties. Reportedly, headquarters staff and the hearing officer serving as “officer of the day” review every written hearing record for adequacy of documentation, consistency with revocation process policy, and for any mistake of fact or law. Where a decision is thought to have substantial flaws in one of these areas, a decisionmaker reviews the case and, if he agrees, reverses the decision and orders a rehearing. Defendants anticipate making this process available when requested, as well.75
To date, these decisions have not been tracked and the rationale has not been recorded or provided to parolee counsel or other staff involved. The revocation database records for known cases do not clearly reflect that this process has even occurred, and not all original hearing records were preserved.76
Defendants believe that reversal has been employed in four probable cause hearing decisions. In each, the original hearing result was to continue on parole or dismiss the case. One case was reheard within four days, others within two weeks. The
37 PDF created with pdfFactory trial version www.pdffactory.com

Case 2:06-cv-02042-LKK -GGH Document 543 Filed 05/28/09 Page 38 of 46
results were the same in one case, a rejected offer of return to custody now proceeding to revocation hearing, and a return to custody for 12 months.77
Such a process must be conducted with more transparency, and must include providing counsel and other interested persons the rationale for reversing a final result. It is an open question whether the criteria being applied are consistent with policy standards; Plaintiffs and CalPAP contend that it is not. If scheduling a rehearing carries a risk of extending the parolee’s time in custody, Defendants should make every effort to rehear that case in the shortest time possible.
Comprehensive annual training on ADA and effective communication, the Stipulated Injunction's requirements, policies and procedures, due process (¶ 56):
Defendants assert that they have conducted extensive training on various requirements through 2008 and 2009, some of which the Special Master observed and found to be beneficial. . Plaintiffs have objected to the adequacy of these trainings, particularly concerning disabilities and effective communication needs. They call for renewed training in light of policies that have changed during the year and staff confusion they have observed; they emphasize the need for training on the topics the Special Master has found deficient in this report.
Tracking mechanism for timeframes and reasons for delay (¶ 13, 32, 33): One of the strongest features of Defendants’ implementation to date was designing and launching a detailed, complex information system that serves well in facilitating many aspects of compliance and tracking performance. This system was
38 PDF created with pdfFactory trial version www.pdffactory.com

Case 2:06-cv-02042-LKK -GGH Document 543 Filed 05/28/09 Page 39 of 46
implemented in February 2009 and is a much more advanced effort than is common at this stage of many institutional conditions lawsuits.
Reportedly, staff encountered the usual difficulties with access and unexpected functioning during the initial roll-out. In addition to troubleshooting, the information system professionals have designed an upgrade they anticipate installing in early May 2009. Reports and other documents continue to reflect operations staff’s lack of familiarity with some aspects of the database, which likely makes some of the current data unreliable. Plaintiffs are particularly disturbed by this, citing one case where a significant amount of information disappeared. Staff and the Special Master have been identifying logic errors and needed functions and reports, which can be remedied as a normal part of this process.
As described supra, one of the greatest difficulties has been erratic access to the system. Consistent use of an electronic information system will be critical for reliability of information and of the revocation systems themselves, as well as for demonstrating compliance.
Monitoring process In December 2008, the parties reached agreement concerning a detailed monthly production of documents and recordings by which Plaintiffs may review some aspects of the remedy’s implementation. Defendants have produced those materials monthly in 2009. In February 2009, the Plaintiffs filed a motion asking the Court to resolve the question of whether Plaintiffs are entitled to monitor. The parties withdrew the motion in
39 PDF created with pdfFactory trial version www.pdffactory.com

Case 2:06-cv-02042-LKK -GGH Document 543 Filed 05/28/09 Page 40 of 46
March 2009 after agreeing to a regular schedule of onsite monitoring by Plaintiffs for 2009.
The Stipulated Injunction requires Defendants to develop a self-monitoring team to ensure compliance with its terms and with relevant policies and procedures (¶ 57). The Special Master understands that this is under development.
Revocation may be extended only after a revocation extension hearing, and parolee must receive copy of decision (¶ 35, 40):
DJJ indicates that, during or prior to this Round, it ceased using “time-adds” and parole consideration hearings for youth in DJJ on a parole revocation. These mechanisms previously had extended time in custody.78 No parties have conducted a review to determine that these practices have, in fact, been fully discontinued. No reports of problematic cases have been presented to the Special Master.
DJJ has instituted the revocation extension system,79 with required steps and associated timeframes. It appears that nine incidents have gone into the revocation extension process.80 The process steps appear to have been completed timely, although it is not clear that all data have been entered. Of the five cases where outcome could be discerned, the penalties ranged from two to six months.81
One important feature of this process is the requirement to expedite the revocation extension process if it occurs close in time to a parolee’s date for release from the facility. It appears that a few incidents have occurred shortly before planned release. Not all information was available, but it appears that staff followed policy in at least two cases and completed proceedings within 35 days after the parolee would have been released; in
40 PDF created with pdfFactory trial version www.pdffactory.com

Case 2:06-cv-02042-LKK -GGH Document 543 Filed 05/28/09 Page 41 of 46
one of those, proceedings were completed very quickly, within 17 days after discovery of the conduct.82
The Special Master does not have sufficient information to determine whether parolees are receiving copies of their written hearing records; the team is aware of one parolee who did receive a copy and one who did not.83
Policies and procedures governing dual commitments (¶ 45): DJJ has drafted policy that, when approved, will include the handling of dual commitments.84 This policy requires further internal drafting and negotiation with Plaintiffs’ counsel. During the Round, CDCR also issued instructions to facilitate the transfer to hearings for DJJ parolees housed in CDCR adult institutions.85
Elimination of “temporary detentions”; immediate rescission of relevant regulation (¶ 39):
Defendants instructed field staff to end temporary detentions effective in April 2008.86 The parties have not yet undertaken a review of whether the practice has completely ceased. No reports of temporary detentions have come to the Special Master’s attention.
The Stipulated Injunction requires Defendants to “immediately rescind Title 15, California Code of Regulations § 4985,” which concerns this practice. Defendants report that this regulation and Title 15, California Code of Regulations § 4826 were repealed on December 18, 2008.87
41 PDF created with pdfFactory trial version www.pdffactory.com

Case 2:06-cv-02042-LKK -GGH Document 543 Filed 05/28/09 Page 42 of 46
Summary Defendants have put in place many systems necessary to implementing this remedy, and significant improvements are already evident. A number of rights are clearly more protected. Parole staff are developing and presenting better evidence, and probable cause hearings generally operate well. There is a strong showing of timeliness on most process steps in cases initiated after the implementation date, and the number of cases preceding that date are diminishing. The well-designed information system will be a valuable tool is managing the cases and demonstrating compliance. Certainly, deficiencies and incomplete or inconsistent practices are apparent, just as they are in any new system. Some are merely individual errors or small-scale breakdowns. Those requiring the most attention, at this point, are practices identifying and accommodating disabilities and effective communication needs -- predictably a large group in this population – and the more nuanced aspects of substantive due process in revocation hearings. The areas of greatest controversy between the parties concern a parolee subpopulation living in DJJ longer than one year, and the documents and information necessary to convey disability and effective communication needs. Continued and sustained negotiation is still needed to formulate some remaining features of the remedy. The Special Master commends the parties on their work to date and makes no recommendations at this time.

Chase Riveland /s/Chase Riveland
Special Master

May 24, 2009

42 PDF created with pdfFactory trial version www.pdffactory.com

Case 2:06-cv-02042-LKK -GGH Document 543 Filed 05/28/09 Page 43 of 46
1 The Stipulated Injunction was signed by the parties on June 3 and 4, 2008. 2 Source for much of this section is informal communications with Defendants 3 Letter from S. Renteria to G. Grunfeld, Apr. 23, 2009 4 Id. 5 Informal communications with Defendants 6 LH Compliance Report, Mar. 23, 2009 7 As a reminder, most measurements will be of the period from Mar. 1, 2009 through Apr. 15, 2009 8 Closed Case Summary, Mar. 1 through Apr. 15, 2009; Open Case Summary for each of Mar. 17, Mar. 31, Apr. 4, 12, 16, and 20, 2009. Where Open Case Summaries are used, the analysis averages them to reach the number typically open at any given time. 9 14 individuals’ records among the monthly productions and hearings observed 10 2 appeals provided in Feb. and Mar. 2009 monthly productions 11 Document with the computer file name CalPAP sampling of cases 4-23-09.doc. This is an accidental sampling of 10 cases; because of size and method, it may not be representative, but is a useful piece of the analysis and confirms findings of other studies. 12 Closed Case Summary, Mar. 1 through Apr. 15, 2009; Open Case Summary for each of Mar. 17, Mar. 31, Apr. 4, 12, 16, and 20, 2009. The studies showed 85 of 106 cases timely, and 8 of 10 cases timely, respectively. 13 Revocation packets or database records for 18 individuals in hearing observations, monthly productions, or other revocation database research. Among these, 15 (83%) were served timely. Another two cases were returned from out of state; one was served timely and one was served five business days late. 14 Notice of Rights by Unit, Feb. 2 through Mar. 31, 2009, shows 13 cases missed, but an examination of those cases yields different results. In addition to the four late cases, three cases have proceeded to another step; this may indicate either that no service took place or that it was not recorded in JSTS. Two cases are not late: one is in custody out of state and is not yet available for service, and for one, service was attempted timely while he was out to court and it has since been determined that he is non-707b and will be handled by county courts instead of DJJ. Field files showed that the final three cases were served timely but the service was not recorded in JSTS. Additional sources: Case Status Reports for eight parolees; Special Master’s onsite review of five field files (copies not retained). Accord Closed Case Summary – Case Prep Events, Feb. 2 through Mar. 31, 2009. 15 See, e.g., memorandum with the subject line LH v Schwarzenegger CalPAP Protocol, ADA Accommodation, Waivers & Admissions, Apr. 14, 2008; memorandum with the subject line LH v Schwarzenegger DJPO Will Cease Accepting Waivers or Written Admissions Prior to Appointment of an Attorney, Apr. 30, 2008; memorandum with the subject line BCPA Instructions, Sept. 15, 2008 (in Jan. monthly production) 16 The investigation occurs before CalPAP attorneys are appointed. Parolees have counsel of record related to prior criminal proceedings; some continue representation in parole revocation proceedings and some do not. 17 DJJ Cases Closed/Cases With a Detainer Date After Apr. 30, 2008 run for Mar. 2009, analysis of cases with holds from Feb. 2, 2009 forward; document with the computer file name CalPAP sampling of cases 423-09.doc 18 LH Compliance Report, Mar. 23, 2009 19 It was present in 8 packets among those reviewed in the monthly productions or in conjunction with observed hearings or database research questions. There were additional mentions of specific cases in the cover sheets to the Feb. and Mar. 2009 monthly productions. 20 Document with the computer file name CalPAP sampling of cases 4-23-09.doc
43
PDF created with pdfFactory trial version www.pdffactory.com

Case 2:06-cv-02042-LKK -GGH Document 543 Filed 05/28/09 Page 44 of 46
21 Closed Case Summary, Mar. 1 through Apr. 15, 2009; Open Case Summary for each of Mar. 17, Mar. 31, Apr. 4, 12, 16, and 20, 2009 22 Closed Case Detail by JPB – Step RTCA, Feb. 2 through Mar. 31, 2009 23 CalPAP Requested Expedited Hearings, Feb. 2 through Mar. 31, 2009
25 Sources for this section are the Special Master’s observations and individual records in the subfolder Individual Hearings Seen Onsite 26 Closed Case Summary Mar. 1 through Apr. 15, 2009; average of Open Case Summary for each of Mar. 17, Mar. 31, Apr. 4, 12, 16, and 20, 2009 27 Open Case Summary, Mar. 31, 2009; individuals’ records in Open Case Lateness Analysis subfolder, with computer file names beginning Open Case-Late at PCH 28 Id. 29 Document with the computer file name CalPAP sampling of cases 4-23-09.doc 30 Informal communications with Defendants 31 These discussions did not cover every location in California, however. 32 Sources for this section are the Special Master’s observations, individuals’ documents associated with site visits, and hearing recordings and documents in the monthly productions 33 Letter from S. Huey to M. Brady, Apr. 10, 2009 34 The Special Master observed only one exception, which is subsequently being addressed. See discussion infra. 35 In this case, it was a probable cause hearing. 36 These include dispositions at probable cause hearings as well as at revocation hearings 37 Closed Case Alternatives to Incarceration Summary, Feb. 2 through Mar. 31, 2009 38 Informal communications with Defendants 39 This term is used to describe those revocation actions that follow the normal course. The concept excludes cases with special circumstances, such as not in custody hearings, extradition, parolee time waivers, optional waivers, and postponements. 40 Revocation Hearings held more than 35 days from Detainer Date, Dec. 15, 2008 through Jan. 9, 2009 and Jan. 10 through Feb. 1, 2009; DJJ Cases Closed/Cases With a Detainer Date After Apr. 30, 2008, run for each of October 2008 through February 2009. This analysis excludes 8 cases that were heard Not in Custody; they will be discussed in that section. 41 Id. through Jan. 2009 42 DJJ Cases Closed/Cases With a Detainer Date After Apr. 30, 2008 run for Mar. 2009 43 Closed Case Summary, Mar. 1 through Apr. 15, 2009; Closed Case Detail, Mar. 1 through Apr. 15, 2009; Step RevH Open Case Detail Step RevH run Apr. 24, 2009; individual cases in folders RevH Lateness Analysis and Individual Hearings Seen Onsite (for NIC cases) 44 Document with the computer file name CalPAP sampling of cases 4-23-09.doc; the 10-case sample reviewed four cases that went to revocation hearing 45 DJJ Cases Closed/Cases With a Detainer Date After Apr. 30, 2008 run for Mar. 2009 46 Revocation Hearings held more than 35 days from Detainer Date, Dec. 15, 2008 through Jan. 9, 2009 and Jan. 10 through Feb. 1; DJJ Cases Closed/Cases With a Detainer Date After Apr. 30, 2008, run for each of February and March 2009 47 Document with the computer file name DJJ Proceedings Schedules.pdf; Revocation Hearings held more than 35 days from Detainer Date, Dec. 15, 2008 through Jan. 9, 2009 and Jan. 10 through Feb. 1, 2009; individual cases in Individual Hearings Seen Onsite. There were another 3 NIC hearings held in January, according to the schedules, but timeliness could not practically be determined. 48 Closed Case Summary – Extradition, Feb. 2 through Mar. 31, 2009; individual cases in Extradition subfolder 49 Observed at Juvenile Parole Board training Jan. 5, 2009 50 CalPAP DJJ Statistics 50 Mile Report for each of Oct. 2008 through Mar. 2009 51 Informal communications with CalPAP 52 See, e.g., Parole Board Order for Dixon, 89110, for the hearing dated Mar. 11, 2009 (in Mar. document production). CalPAP indicates that this has happened more than once, but it does not have practical means to identify the cases or estimate the number. 53 Informal communications with CalPAP
44
PDF created with pdfFactory trial version www.pdffactory.com

Case 2:06-cv-02042-LKK -GGH Document 543 Filed 05/28/09 Page 45 of 46
54 Closed Case Detail – Supplemental Charge Cases, Feb. 2 through Mar. 31, 2009; Case Status Reports for four individuals recorded as having supplemental charges; Open Case Summary -- Supplemental Charge Cases Apr. 19, 2009. On examination of some of the individual records, it appears that some of these are not supplemental charge cases and some are incomplete records. 55 Joint Stipulation Regarding Modifications to Division of Juvenile Justice Parole Revocation Policies and Procedures draft provided Mar. 25, 2009; informal communications with parties 56 Board Order and hearing recording for individual in the Feb. document production; informal communication with defendants 57 Joint Stipulation Regarding Modifications to Division of Juvenile Justice Parole Revocation Policies and Procedures draft provided Mar. 25, 2009; informal communications with parties 58 Youthful Offender Parole Board Hearing Calendar for each week from Feb. 2 through Apr. 17, 2009 (except one week in March); Closed Case Summary for the same period. Because there are a number of internal inconsistencies in the revocation database, it is not possible to determine reliably what percentage this is. It was not feasible for the Special Master to determine practice prior to this date. 59 Closed Case Summary – NIC Referral Cases, Feb. 2 through Apr. 17, 2009. This report captures five of the cases, suggesting that there may be data entry issues with other cases. 60 LH Compliance Report, Mar. 23, 2009 61 Memorandum with subject line Interim Accommodation/Effective Communication Policies and Procedures, Sept. 2, 2008 (in Jan. document production) 62 Individual parolee records in the subfolders titled Individual Hearings Provided in Monthly Productions and Individual Hearings Seen Onsite 63 ADA/Effective Communication Tracking Report for each of December 2008 through March 2009; letter from S. Renteria to M. Lang dated Mar. 12, 2009 64 Informal communications with Defendants; the change to using a different tracking system likely accounts for the greatly reduced number of cases captured in the March 2009 report generated by the earlier system. 65 ADA/Effective Communication Tracking Report for each of January through March 2009. The total number of entries was 152, with 19 parolees identified as needing accommodation or measures for effective communication. Of these, 2 needed assistance with English, 5 had impaired vision, 9 had mental health needs, and 8 had learning disabilities or otherwise required assistance in understanding (some parolees had more than one of these issues). 66 Informal communications with Plaintiffs, who cited CDCR Budget Concept Statement Fiscal Year 2008/09, Division of Juvenile Justice/Juvenile Parole Board, as well as several studies and articles showing similar rates of learning disabilities, mental illness, and other disabilities in incarcerated youth elsewhere 67 Three individual parolees’ packets filed in ADA documents (subfolder of Materials Relied Upon-OSM2) 68 Informal communications with CalPAP 69 Informal communications with Defendants 70 Emails covering monthly productions for each of December 2008 through March 2009 71 LH Compliance Report, Mar. 23, 2009 72 See appeals submitted with the Feb. and Mar. 2009 document productions 73 See 23 appeals submitted with the Feb. and Mar. 2009 document productions. The one that was untimely was a third submission on the same appeal; since there is only one level available, timelines may not apply to this appeal. 74 In one case, the time exceeded the matrix range but the reviewer found that the hearing officer had documented sufficient reason to vary from the range. 75 Informal communications with Defendants 76 Individual records in subfolder Decision Review; the Special Master is not aware of the identity of the fourth individual 77 Id. 78 LH Compliance Report, Mar. 23, 2009; email with the subject Parole Violators, Oct. 30, 2008 (in Jan. monthly production) 79 LH Compliance Report, Mar. 23, 2009; Special Master’s observations 80 Revocation Extension Open Case Summary by Facility, Mar. 31, 2009; Revocation Extension Closed Case Summary by Facility, Feb. 2 through Mar. 31, 2009 (this report did not vary when reviewed with the starting date of Dec. 15, 2008); Revocation Extension Hearing Results, Dec. 15, 2008 through Mar. 31,
45
PDF created with pdfFactory trial version www.pdffactory.com

Case 2:06-cv-02042-LKK -GGH Document 543 Filed 05/28/09 Page 46 of 46
2009; Revocation Extension Level 3 Behaviors, Dec. 15, 2008 through Mar. 31, 2009; weekly email summaries from CalPAP, Jan. 9 through Apr. 3, 2009 81 Revocation Extension Open Case Summary by Facility, Mar. 31, 2009; Revocation Extension Hearing Results, Dec. 15, 2008 through Mar. 31, 2009; DJJ Rev Extension Cases Closed run for each of Jan. through Mar. 2009 82 JSTS reports in Rev Ext subfolder; informal communications with Defendants concerning individuals’ release dates 83 Informal communications with CalPAP 84 Division of Juvenile Justice Parole Violation Process (draft provided in Jan. document production) 85 Memorandum with the subject line Release of California Department of Corrections and Rehabilitation Inmates on Dual Commitments to Division of Juvenile Justice Custody for Transportation to and From Juvenile Parole Revocation Hearings, Dec. 31, 2008 86 Memorandum with the subject line LH v. Schwarzenegger Implementation of Probable Cause Hearings and Cessation of 30-Day Temporary Detention Holds, Apr. 14, 2008 (in Jan. document production) 87 LH Compliance Report, Mar. 23, 2009
46 PDF created with pdfFactory trial version www.pdffactory.com

 
 Case 2:06-cv-02042-LKK -GGH Document 558 Filed 11/30/09 Page 1 of 38
IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

L.H, et al., Plaintiffs,
vs. ARNOLD SCHWARZENEGGER, et al.,
Defendants. _____________________________________/

NO.CIV.S-06-2042 LKK/GGH

THIRD REPORT OF THE SPECIAL MASTER ON THE STATUS OF
CONDITIONS OF THE STIPULATED ORDER
Background The Plaintiffs in this case filed their Complaint with the Court on September 13, 2006. The Court certified this case as a class action by Order dated February 28, 2007. On September 19, 2007, the Court granted partial summary judgment in favor of Plaintiffs, holding that California's juvenile parole revocation system, by failing to provide a timely probable cause hearing, violated the due process rights of the Plaintiff class as those rights were described in Morrissey v. Brewer. On January 29, 2008, the Court held that Defendants' failure to appoint counsel for all juvenile parolees violated the due process rights of the Plaintiff class, according to precedent set in Gagnon v. Scarpelli. In the same order, the Court also found that Defendants' policies and practices violated the Americans with Disabilities Act (ADA) and the Rehabilitation Act. The
1 PDF created with pdfFactory trial version www.pdffactory.com

Case 2:06-cv-02042-LKK -GGH Document 558 Filed 11/30/09 Page 2 of 38
Court ordered the Defendants to: (1) begin appointing counsel to represent juvenile parolees at parole revocation hearings no later than February 15, 2008, and to provide that counsel with access to confidential contact space and the necessary files sufficiently in advance of the hearing to allow adequate preparation, (2) allow parolees to obtain counsel of their own choosing, who shall be able to represent clients under the same terms as appointed counsel, and Defendants are to notify the parolee’s counsel of record or public defender when a hold is placed, (3) ensure effective communication and provide necessary accommodations, and (4) develop sufficiently specific policies and procedures to ensure continuous compliance with all of the requirements of the American with Disabilities Act during revocation proceedings. Chase Riveland and Virginia Morrison were appointed as Special Master and
Deputy Special Master, respectively, on May 22, 2008. The parties, on June 13, 2008, submitted a Stipulated Motion for Preliminary Approval of Class Settlement. The Court granted the motion on June 17, 2008 and approved a Stipulation and Order for Permanent Injunctive Relief on October 7, 2008 (hereafter “Stipulated Injunction”).
On April 2, 2009, the parties filed a Stipulation and Order Re: Plaintiffs’ Motion to Monitor Defendants’ Compliance with the Stipulated Order for Permanent Injunctive Relief.
The Court entered a “Stipulation and Order Requiring Defendants to take Immediate Steps to Identify and Track Juvenile Parolees with Disabilities and Effective
2 PDF created with pdfFactory trial version www.pdffactory.com

Case 2:06-cv-02042-LKK -GGH Document 558 Filed 11/30/09 Page 3 of 38
Communication Needs, dated July 7, 2009. The parties also negotiated a stipulation modifying several aspects of policies and procedures, which this Court signed on September 10, 2009.
Special Master Activities The Special Master assisted the parties in resolving certain ADA and effective communication issues. The team observed the Defendants’ task force and participated in all-parties’ information update meetings. The team observed proceedings at Heman G. Stark Youth Correctional Facility and Los Angeles and Santa Rita county jails. Those proceedings were conducted by three hearing officers and consisted of seven probable cause hearings, three revocation hearings, an optional waiver review, one revocation extension hearing, and one exit interview. The team did not attempt to observe the service of notice on any parolees. In addition to the revocation hearings seen in person, the Mastership analyzed recorded and written materials for another 28 revocation hearings and two revocation extension hearings, demonstrating the work of seven hearing officers.
Scope and Approach This report discusses observations and activities spanning May 2009 through September 2009, collectively referred to as “the Round.” References to the Special Master’s activities frequently include the actions of a member of his team. A number of mandates consist both of procedural due process requirements and due process in how they are conducted; all aspects are included in the Special Master’s assessment. The term “mainstream cases” refers to those revocation actions that follow
3 PDF created with pdfFactory trial version www.pdffactory.com

Case 2:06-cv-02042-LKK -GGH Document 558 Filed 11/30/09 Page 4 of 38
the normal course; it excludes cases with special circumstances, such as not in custody hearings, extradition, parolee time waivers, optional waivers, and postponements.
For many of the requirements, the Special Master’s team conducted a study based on revocation packets, hearing documents, and recordings provided in Defendants’ monthly document productions, in combination with those same documents produced for the hearings observed during the team’s site visits. Since these were not randomly chosen, there are limitations on the representativeness of this sample. In other instances, the team relied on reports generated by Defendants’ revocation database, Plaintiffs’ monitoring reports and analyses, reports or studies conducted by the CalPAP attorney panel administration, and sometimes documents underlying these sources.
Policies and Regulations The parties agreed that within 90 days of the parties signing the Stipulated Injunction, and no later than September 15, 2008, the Defendants were to develop sufficiently specific draft policies, procedures, and plans to:
• ensure that revocation proceedings are in continuous compliance with all of the requirements of the Constitution and applicable statutes, • address a method for accurately tracking the timeliness of hearings and other steps in the parole revocation process, • include the timely provision of accommodations for juvenile parolees’ disabilities and effective communication needs, • provide for not in custody hearings, dual commitments, and parole exit meetings; and • address such disputed issues as telephonic probable cause hearings, circumstances constituting good cause for delayed hearings, and remedies for untimely hearings.
4 PDF created with pdfFactory trial version www.pdffactory.com

Case 2:06-cv-02042-LKK -GGH Document 558 Filed 11/30/09 Page 5 of 38
The parties have reached agreement on a substantial number of policies, and continue negotiation on others. Policies and procedures have been signed and distributed concerning the overall revocation process, attorney standards, revocation extension, and exit interviews. A revised policy concerning disabilities and effective communication is pending dissemination. The parties memorialized further agreements in the stipulation and order referenced supra.
Plaintiffs strongly emphasize that the distributed policies contain provisions to which they object, and they see complete policies, consistently trained and applied, as a critical foundation for implementation and thus overdue. The parties have not collectively determined whether all necessary policies are in process or completed.
Notice of terms: During 2008, Defendants reported detailed methods used to provide posters and notices to DJJ, CDCR, and county jail facilities. Plaintiffs noted that posters were absent in two of Defendants’ facilities they visited1 and Defendants reported they redistributed posters in English and Spanish in October 2009.2 Neither the parties nor the Special Master have undertaken a review of whether posters are in all required locations within these facilities. Since Defendants reported that DJJ facilities requested 90 posters after the initial distribution, it is likely that many are available to parolees, but a review would be useful.3
Regulations: Defendants have begun the lengthy, complex revision and approval process on many regulations affected by the LH remedy, with multiple staff tasked with this responsibility. Plaintiffs have provided comment to enhance those revisions, and they note a regulation set for which revisions have not yet been produced.
5 PDF created with pdfFactory trial version www.pdffactory.com

Case 2:06-cv-02042-LKK -GGH Document 558 Filed 11/30/09 Page 6 of 38
Stipulated Injunction Requirements The Defendants coordinate a variety of divisions and external entities in working toward fulfilling the requirements of the Stipulated Injunction. The greatest accomplishments are in establishing procedures and systems well-designed to manage the work flow in service of protecting parolees’ rights. Likewise, Defendants have implemented mechanisms for self-correction that are critical to reaching and maintaining compliance. Several of these systems are operating well, and more is needed to satisfy the Court’s orders. The budget crisis carries particular risk for cases like LH, where compliance is heavily dependent on deadlines. Work weeks shortened by furloughs, layoffs resulting in staff turnover and heightened training needs, and hiring limited to finite terms all combine to create substantial pressure on staff dedicated to meeting timeframe requirements. In a small department such as the Juvenile Parole Board, the loss of half of the clerical staff, for example, is keenly felt. While timeliness numbers do not yet appear to be impacted, Defendants will likely need to be increasingly creative to fulfill their obligations, and the Court will need to closely monitor the budget’s effects. Parole Agent and Supervising Parole Agent conference within two business days (¶ 27): Defendants’ revocation database shows that this function is operating well; 94% of these interactions have been timely for the mainstream population, an improvement over the prior Round. Most of the late cases were completed the following day, and the longest time to completion was nine days.4
6 PDF created with pdfFactory trial version www.pdffactory.com

Case 2:06-cv-02042-LKK -GGH Document 558 Filed 11/30/09 Page 7 of 38
All extradition cases were also timely at this step.5 For parolees referred for not in custody hearings by a parole unit, however, conferences for 71% were timely,6 though late cases generally completed within an additional one to two business days.
It appears that the parole agent-supervisor conference resolved about 13% of the 468 non-extradition holds.
Notice of charges and rights within three business days (¶ 28): In the Special Master’s revocation packet review, the service documents were present in all but two cases, suggesting that the parolees received the charges and notice of their rights. The third form memorializes efforts to identify disabilities; these were more problematic, but will be discussed infra. To satisfy due process, the notice must contain a summary of the conduct underlying the charges sufficient for the parolee to prepare a defense. In the notices the Special Master reviewed, about 62% of summaries ranged from reasonable to very good. Another 10 cases yielded mixed results – some charges were reasonably detailed while other charges were inadequately described. The remaining seven did not describe the conduct.7 Neither the Special Master nor Plaintiffs have observed service as it took place and therefore do not have a sense of the due process during that communication. As to timeliness, about 87% of notices of nearly all populations were completed within the required time.8 Nearly all late cases were served within four days after the deadline.9 Not in custody cases were served within 10 business days, with one exception, consistent with Defendants’ policy. One extradition case may not have been served.
7 PDF created with pdfFactory trial version www.pdffactory.com

Case 2:06-cv-02042-LKK -GGH Document 558 Filed 11/30/09 Page 8 of 38
In 12 cases, Defendants encountered barriers in their initial attempts to serve parolees.10 All but one of the initial attempts were timely, and four cases were ultimately served timely on a later attempt. The remainder were completed one to two days past the deadline. The reasons they were untimely were all reasonable, with the exception of lack of access to two parolees housed in administrative segregation. These numbers reflect a conscientious effort to serve parolees quickly despite the obstacles encountered.
Non-acceptance of written admissions to a violation of parole, or waivers of hearing rights or the right to counsel, made prior to the juvenile parolee meeting with counsel (¶ 17, 31):
Revocation packets indicate that Defendants have ceased the routine practice of asking parolees to make written admissions during the investigation. Plaintiffs continue to object to the parolee’s parole agent taking oral statements at the service of notice of rights and charges and during the investigation, before counsel is appointed;11 the parties disagree as to whether this practice is permissible under the Stipulated Injunction.
Requirements concerning attorney representation Provision of counsel during revocation proceedings (¶ 15): All indications are that attorneys have consistently been appointed for all parolees
taken into custody on a new parole hold since February 2008. It would be useful for Defendants to devise a system to detect whether any appointments are overlooked.
Timely appointment of counsel (¶ 16): In the initial months of the Round, timeliness in DJJ providing the information
8 PDF created with pdfFactory trial version www.pdffactory.com

Case 2:06-cv-02042-LKK -GGH Document 558 Filed 11/30/09 Page 9 of 38
necessary to appoint attorneys remained poor. It improved significantly, in absolute numbers and percentages, in each month from July forward. The overarching compliance rate for the Round was 73% for the mainstream population, though compliance is unknown for not in custody and extradition cases.12 There is insufficient information at this time to determine the effect this may have had on attorney preparation or rescheduling of hearings.
At the time of attorney appointment, provision of date, time, and location of the hearing (¶ 16):
Defendants are compliant with this provision, as CalPAP reports that it is provided these pieces of information at the same time it receives the packets.
At the time of attorney appointment, provision of a copy of all the evidence on which the State intends to rely or which may be exculpatory; evidence not provided with at least two days’ notice shall be excluded unless the state shows good cause (¶ 16, 19):
The Special Master did not observe any instances of late-produced evidence to which counsel objected. In one hearing recording, the hearing officer reviewed the parole agent’s supervision notes, which were not included in the revocation packet. During the previous Round, attorneys said that this function was operating well, and it appears that that generally continues.
At the time of attorney appointment, provision of relevant educational, mental health and disability identification and source documents (¶ 16):
9 PDF created with pdfFactory trial version www.pdffactory.com

Case 2:06-cv-02042-LKK -GGH Document 558 Filed 11/30/09 Page 10 of 38
The parties took significant steps on this highly controversial issue during the Round. They agreed on a method for Defendants to conduct a large-scale review of files and electronic databases to incorporate disability information for lawyers and others into a summary form. Defendants reported that they began compiling some information into the summary in July, trained reviewers in its use in September, and have agreed to complete a comprehensive review by November 30, 2009. These summaries will serve to provide educational, mental health and disability information to attorneys ongoing. A dispute remains about what is sufficient to satisfy the requirement to provide source documents.
Right to be represented by counsel of choice; process for timely notifying of the counsel of record of the imposition of a parole hold (¶ 18):
In contrast to the prior Round, the Special Master’s review determined that a notification form was much more routinely used to notify public defenders and private attorneys of a parole revocation proceeding for their clients. Timeliness was poor overall, but improved steadily during the Round. Only 59% were clearly provided in the time mandated by policy. Another 15% were sent by the required time to notify CalPAP; while this exceeds the parties’ agreement and could create logistical problems for CalPAP, it also arguably could fit the Stipulated Injunction’s requirement to timely notify counsel. In the remaining cases, timeliness could not be discerned because the form was undated, no forms were present, or the notification was late up to 15 days after the hold.13 No revocation extension cases contained this notification as Defendants maintain this is not required, a position that Plaintiffs contest.
10 PDF created with pdfFactory trial version www.pdffactory.com

Case 2:06-cv-02042-LKK -GGH Document 558 Filed 11/30/09 Page 11 of 38
Documents indicate that only two attorneys outside of CalPAP indicated their intention to represent youth in the DJJ proceedings, and only one went forward with representation.14
Attorney will be informed of Return to Custody Assessment by the 10th business day after the hold (¶ 30):
Defendants’ revocation database shows good compliance with this requirement, with these assessments provided by the 10th business day in 95% of the largest proportion of the population.15
Counsel to meet with client at least 24 hours prior to the probable cause hearing (¶ 16):
This system appears to be operating very well. In interviews and observations during prior Rounds, the Special Master determined that attorneys commonly meet with their clients one to three days ahead of hearings. No new information came to the Special Master’s attention during this Round.
Adequate time for representation; reasonable access to clients and files; confidential phone calls and space in which to meet; observing staff cannot participate in proceedings (¶ 20, 23):
In previous Rounds, all interviewed attorneys described having adequate time and access to information. They indicate there were private locations for meetings and easy access to clients in several locations, with a notable exception at Santa Rita County Jail. No new information came to the attention of the Special Master during this Round.
11 PDF created with pdfFactory trial version www.pdffactory.com

Case 2:06-cv-02042-LKK -GGH Document 558 Filed 11/30/09 Page 12 of 38
Because there is only one DJJ facility for women, attorney representation issues there bear monitoring. Issues, isolated to date, have been reported when the alleged violation conduct took place in Northern California and the parolee wishes to proceed with a revocation hearing. In these cases, a second attorney may assume responsibility for the revocation hearing, and there are complexities involved in coordination of the first and second attorneys, and in the remote attorney reaching the parolee by phone and in a confidential setting.
Additionally, Plaintiffs note that, when coordinating parole agents both serve as a sounding board for hearing officers and provide security during attorney-client consults in the hearing room, it potentially implicates the prohibition on observing staff participating in proceedings.
Return to custody assessment within nine business days (¶ 29): The Special Master was unable to observe hearing officer practice in assessing at this stage probable cause and the need for continued detention. Timeliness was good, with Defendants’ data showing this assessment completed timely in 91% of the largest proportion of the population, consistent with the prior Round. The great majority were completed one to two days later, and the longest time to completion was 21 business days.16 It appears that eight cases were resolved at this step.
Probable cause hearing requirements Expedited probable cause hearings (¶ 26): There have been no requests for expedited probable cause hearings.17
12 PDF created with pdfFactory trial version www.pdffactory.com

Case 2:06-cv-02042-LKK -GGH Document 558 Filed 11/30/09 Page 13 of 38
Probable cause hearings within 13 business days after the hold is placed, including written bases for findings (¶ 32, 40):
Nature of Hearings Many hearings are initiated with an interactive ADA review, a review of the parolees’ rights, and an orientation to the process. Written guides have assisted with these functions; there are still some hearing officers whose hearings would improve if they were to ensure that each of these occurred consistently. Plaintiffs would like to see the guides improved. ADA reviews are the least successful. While hearing officers usually touch on most or all of the topics, nearly all do so rapidly and in a manner that inadvertently suggests the correct answer is that the parolee does not need help. Given how many incentives youthful parolees have to hide or disavow disabilities and other needs, for any ADA review to be effective, a reviewer must invite conversation, watch for cues, and ask follow-up questions to detect the likelihood that a parolee may not understand without help. Training, particularly with practice, would be extraordinarily helpful. Hearing officers clearly care about the parolees, and set a respectful tone conducive to participation, although Plaintiffs and the Special Master have observed hearings that were troubling exceptions. Parolees may present evidence in their defense, including contesting probable cause. In cases where there is a problem with probable cause, it has to do with the absence of one or more elements of the violations charged. To their credit, some hearing officers dismissed or amended charges when some elements were not proved, both at the return to custody assessment and at probable cause hearing.18 More universal knowledge, among hearing officers and parole staff, is needed. By design,
13 PDF created with pdfFactory trial version www.pdffactory.com

Case 2:06-cv-02042-LKK -GGH Document 558 Filed 11/30/09 Page 14 of 38
some violation reports contain duplicative charges, for example, absconding and failure to report to the parole agent during the same period of time. Depending on the evidence available, the system relies on hearing officers to dismiss either the lesser included charge or the greater charge. The severely mentally ill present a particularly difficult challenge as all concerned seek to balance their treatment and due process needs. Where parolees appear unable to participate in revocation proceedings because of mental illness, the parties agreed to work collaboratively. Few such cases have been apparent, to date. As to the one known parolee during this Round, his probable cause hearing was suspended for a few weeks and concluded in July; Plaintiffs object that the agreement to notify and work with them was not followed in that instance.
Hearing officers do consistently assess whether there is probable cause for the violations, subject to the limitations described above concerning the elements. Hearing practice will be stronger when there is a separate assessment of whether there is probable cause to detain the parolees pending hearing. This does occur on some occasions, as evidenced by a data report showing cases that went to probable cause hearing, where a not in custody revocation hearing was then ordered.19 Dispositions continue to be addressed thoughtfully. Parolees are provided a written record through a variety of methods, depending on location. It has not yet been assessed whether these methods are effective.
Timeliness The Parole Board handled at least 317 probable cause hearings during the Round.20 Among them, 88% were timely,21 a slight improvement over the prior Round.
14 PDF created with pdfFactory trial version www.pdffactory.com

Case 2:06-cv-02042-LKK -GGH Document 558 Filed 11/30/09 Page 15 of 38
Most of the late cases were completed within four days after the deadline, and the longest time to hearing was an additional 16 days.
Postponing hearings is a contentious issue that carries the risk of compromising due process. The parties have agreed to a definition of good cause for delay that involves unforeseeability and being beyond the State’s control.22 The parties have not agreed on a set of situations that would consistently fit these criteria, nor have they agreed concerning delays caused by county jails and other non-State, involved actors. Defendants’ and CalPAP’s records show postponements during this term at parolees’ requests; where the facility could not accommodate the hearing; and because of parole agent illness or the parolee was not transported, in the case of revocation hearings.
Whether good cause exists or not, a postponed hearing must be rescheduled in a reasonable time, or within the requested time for parolee waivers. The information system does not currently permit a systematic review of postponements, but there are indications of problematic rescheduling. Among the cases reviewed,23 nearly all of the probable cause hearings took five to 13 days to reschedule; one revocation hearing took three weeks. While the reasons are unknown at this time, and contributing factors may come from attorneys, jails, and external factors as well as Defendants, it remains Defendants’ burden to demonstrate reasonable practice. Defendants would do well to put in place systems to expedite rescheduling, or to reinforce them if they already exist.
Definition of presumed prejudice (¶ 32): Defendants assert that the parties negotiated one definition to be used for both types of hearings, while Plaintiffs indicate that a definition applying to probable cause hearings remains to be developed.
15 PDF created with pdfFactory trial version www.pdffactory.com

Case 2:06-cv-02042-LKK -GGH Document 558 Filed 11/30/09 Page 16 of 38
Mechanical restraints at hearings (¶ 46): The Stipulated Injunction requires Defendants to develop policies, procedures,
and training concerning restraints that are consistent with the ADA, the Rehabilitation Act, the due process clause, and Title 15 California Code of Regulations section 4034.4. The Stipulated Injunction prohibits any policy requiring universal use of restraints in revocation proceedings.
During the Round, the parties reached agreement on several aspects of restraints use, including the standard for assessing whether to use them in DJJ facilities, and conditions for applying them. Plaintiffs strenuously object to Defendants deferring to the policies of county jails and CDCR adult institutions, some of which require universal use of restraints, contrary to the terms of the Stipulated Injunction. Additionally, Los Angeles County Jail’s routine practice of restraining prisoners to furniture and the floor is objectionable and is counter to the parties’ stipulation and order entered in September 2009.
The Special Master observed restraints practices onsite and in hearing records. Prior visits and interviews identified eight county jails and all CDCR adult institutions as requiring universal restraints, and another such jail surfaced during this Round. Within DJJ facilities, there were a few problematic practices. In one case, staff “deferred to institution policy” in DJJ, where all acknowledge staff are to exercise discretion. Similarly, Plaintiffs objected to one facility’s policy to automatically restrain any prisoner who ordinarily lives in an adult institution. There was one observed instance of staff
16 PDF created with pdfFactory trial version www.pdffactory.com

Case 2:06-cv-02042-LKK -GGH Document 558 Filed 11/30/09 Page 17 of 38
restraining based on the parolee’s commitment offense after policy eliminated that as a permissible criterion.
Requirements related to revocation hearings: Final revocation hearing on or before 35 calendar days after the parole hold is placed (¶ 33):
In assessing this requirement, there are a number of considerations. The system must consistently provide timely hearings in the usual course of revocation proceedings. It must also function to provide hearings timely to special populations, sometimes small groups whose circumstances dictate counting timelines differently or suspending and resuming proceedings once conditions have been met. In operation, the hearings must provide due process, satisfying questions such as fairness, opportunity to be heard, elements of the violation proved sufficient for the applicable standard, and consideration of appropriate sanctions.
Nature of Hearings Many of the practices observed in probable cause hearings also take place in revocation hearings. They begin with an assessment of the parolee’s accommodation needs, effective communication needs, and ability to understand and participate; a review of the parolee’s rights; and an orientation to the hearing. The strengths and weaknesses discussed in the context of probable cause hearings are evident here, as well.
17 PDF created with pdfFactory trial version www.pdffactory.com

Case 2:06-cv-02042-LKK -GGH Document 558 Filed 11/30/09 Page 18 of 38
Hearing officers generally took pleas and swore in witnesses. In addition to concerns about violation elements described supra, other evidentiary concerns arise in revocation hearings.
There can be a tendency to rely on the file, as is done in probable cause hearings, rather than ensuring that evidence is put on the record through testimony. On at least one occasion, this came at the cost of denying the parolee’s right to witnesses. Similarly, sometimes information will be factored into decisions that is not part of the hearing record, such as prior experiences with the parolee.
Preserving the right to confrontation, and keeping it in balance with the State’s interests, is a difficult task that hearing officers have not yet mastered. The State has provided several useful trainings, including at least two during this Round. More knowledge of the factors is evident, but more practice, in training and in situ, will be necessary for this to be done correctly. It is a critical skill to achieve due process in revocation hearings, as hearsay is often the only, or most powerful, potential evidence against a parolee, and is pivotal in whether liberty is lost.
Policies related to one component of the confrontation issue are developing well. The parties agreed to a procedure to balance the parolee’s right to confront adverse witnesses with the needs of fearful witnesses. The hearing officer must determine, based on objective factors, that face-to-face confrontation would result in significant emotional distress to the witness. The attorney may object to designating the witness as fearful; if the objection is overruled, there is a procedure for the parolee to be removed during testimony, with the opportunity to hear the testimony and to consult with his or her
18 PDF created with pdfFactory trial version www.pdffactory.com

Case 2:06-cv-02042-LKK -GGH Document 558 Filed 11/30/09 Page 19 of 38
attorney concerning the examination before the witness is excused. The Special Master has not yet observed this procedure in operation.
As in probable cause hearings, hearing officers approach disposition very thoroughly and thoughtfully. Though the problem has been observed on rare occasions, hearing officers would do better were they to take care not to take into account arrests where there was no conviction, and charges dismissed in prior proceedings or on appeal.
On the other hand, a growing appreciation for evidentiary issues, and facility with them, is apparent in the increasing number of charges dismissed when the State does not meet its burden of proof. Hearing officers dismissed 23 cases, including 17 for due process reasons such as insufficient evidence and lack of jurisdiction.24 Additionally, about 14% in the Special Master’s study sample was dismissed.
In the sample, alternatives to incarceration were given in almost one-third of the revocation hearings. There was, however, no discussion of this issue during the hearings for the majority of cases reviewed. Hearing officers did generally document why alternatives were not chosen, though they sometimes recorded inaccurate information. For example, in a few hearings, the parolee is described in the written record as having refused programs, when no discussion of alternatives had taken place on record. These and similar choices can lead to distrust of whether hearing officers are considering that option.
As to the use of alternatives to incarceration more generally, Defendants’ data indicates that about 40% of holds were resolved with alternatives pre-hearing, and about 19% of the remaining parolees were sent to alternatives during their probable cause or revocation hearings.25
19 PDF created with pdfFactory trial version www.pdffactory.com

Case 2:06-cv-02042-LKK -GGH Document 558 Filed 11/30/09 Page 20 of 38
There are a variety of systems to provide written records to the parolees. The concerns about accuracy, when electronic entry is delayed, are described elsewhere in this report. About two-thirds of the records in the Special Master’s review were fully consistent with the audio recording, with the others omitting or adding detail, usually concerning reasoning. In monitoring reports, Plaintiffs noted another five cases where significant detail was omitted or changed in the electronic record.
Timeliness There were approximately 101 revocation hearings during the Round. To understand whether these hearings were timely, one must be able to assess: • mainstream cases26 completed within 35 days (52% of all revocation
hearings) • cases pending and still within 35 days (5%) • extradition cases completed according to the LH standards calculated from
arrival in California, rather than hold date (1%) • activated optional waiver cases, completed within 35 days after receipt of
activation request (26%) • hearings held while the parolee is not in custody and within 60 days after
notice service (16%) • postponed cases reheard within the requested time or a reasonable time
Timeliness was strong in the 53 completed mainstream cases. Only four were late, and these were completed within four days, with one exception. 27 The longest time to hearing was two weeks late.
On average, there were five open cases at any given time, with timeliness equally well observed.28
Not in custody hearings: There were 16 not in custody hearings in the Round and these, too, were held within 60 days, were pending within the required time, or were rendered moot by a second arrest on other charges.29 The two exceptions were delayed by
20 PDF created with pdfFactory trial version www.pdffactory.com

Case 2:06-cv-02042-LKK -GGH Document 558 Filed 11/30/09 Page 21 of 38
five days or more. For further discussion, see infra. Extradition: The single extradited parolee who sought a revocation hearing received
it within timeframes.30 Optional waivers: During the Round, 59 parolees took optional waivers; of those,
26 activated their waivers and have concluded revocation proceedings.31 Optional waiver activations sent by CalPAP were received timely; information was not available concerning those sent by parolees. All but one of the proceedings following optional waiver activation concluded within 35 days of activation, the timeframe Defendants have set for themselves. Plaintiffs object, asserting that the timeframe should be 35 days less the time expended up to the point the optional waiver was taken.
Postponed: Neither tracking system is able to demonstrate the time to hearing for postponed cases at this time.
In conclusion, therefore, the vast majority of revocation hearings were held timely.
Parole revocation hearings to be held within a 50-mile radius of the alleged violation (¶ 36): Despite the challenge of a small staff responsible for wide geographic areas, Defendants are complying with this requirement well. One revocation hearing was held in violation of the 50-mile limit during the Round, and another occurred outside those limits but with the parolees’ agreement.32
Evidence on the same terms as the state (¶ 33): This system is operating well. The Special Master observed DJJ staff obtaining witness information at the conclusion of each probable cause hearing in which the
21 PDF created with pdfFactory trial version www.pdffactory.com

Case 2:06-cv-02042-LKK -GGH Document 558 Filed 11/30/09 Page 22 of 38
parolee was continuing to revocation hearing. Parolees commonly presented witnesses, letters, and other evidence at revocation hearings. On one occasion in the Special Master's observations, a parolee was denied disposition witnesses.
Supplemental charges (¶ 34): During this Round, it appears there were seven cases with supplemental charges.33
The parties agreed that supplemental charges may not be made based on evidence contained in the field file at the time the violation report is completed; no party reviewed those seven cases for consistency with this agreement.
Definition of good cause for delay, remedy for timeframe violation (¶ 33): The parties have agreed to define good cause as “justifiable, legitimate and
unforeseeable reason for the delay, asserted in good faith and caused by factors that are beyond the control of the State.” They have also agreed that, for any revocation or revocation extension hearing timeframe violation, and for any probable cause hearing held after 35 days, any return to custody will be reduced by the number of days the hearing is late. Plaintiffs, however, reserved their objection to any amount of lateness, and continue to maintain that any late case without good cause is a violation of the Stipulated Injunction.
Prejudice is presumed, and the case will be dismissed, if, absent good cause, a revocation hearing has not been held by the 90th day after the hold.34
Not in custody hearings within 60 days after service and with all due process and ADA protections (¶ 45)
There were 16 not in custody hearings in the Round. This is about 5% of those
22 PDF created with pdfFactory trial version www.pdffactory.com

Case 2:06-cv-02042-LKK -GGH Document 558 Filed 11/30/09 Page 23 of 38
violation cases that proceeded to some type of hearing, significantly fewer than the prior Round.35 In the hearings the Special Master listened to, due process and ADA protections were comparable to those in Defendants’ revocation hearings.
These proceedings may be initiated at the parole unit, without taking the parolee into custody, or, at an in-custody probable cause hearing, the hearing officer may order the parolee released pending such a hearing. All but two of these hearings were timely, were pending within the required time, or were rendered moot by a second arrest on other charges.36 Hearing records indicate that one parolee did not receive notice of the hearing date; the hearing officer dismissed the case.
Requirements related to disposition Limiting return to custody time to one year except for willful program failure or
serious in-custody misconduct (¶ 35): There is good compliance with this requirement. The parties resolved their dispute
during the Round concerning the length of time to be served by parolees in custody as of the signing of the Stipulated Injunction. Defendants report that all parole violators now have a date certain for release, and that all taken into custody prior to that system have been released.37 All terms the Special Master has observed in 2009 have been within the maximum term. Defendants have begun use of a revocation extension system to consider cases of serious in-custody misconduct; it is discussed infra.
Development of a matrix of ranges of revocation terms for specific violations (¶ 35):
23 PDF created with pdfFactory trial version www.pdffactory.com

Case 2:06-cv-02042-LKK -GGH Document 558 Filed 11/30/09 Page 24 of 38
Hearing officers routinely use the required matrix. Policy permits a two-month deviation from the penalty ranges, up to a one-year total term. The department struggled with interpreting the deviation provisions, and confusion was evident. Decisionmaking could be erratic as a result. In fact, the sufficiency of justification for deviation was a principal reason for the handful of cases that reversed a decision and ordered a rehearing through the “decision review” process.
Plaintiffs observed, on occasion, hearing officer language referring to the length of a desired training, and Plaintiffs object, saying this evokes the previous policy, now impermissible, of tying the length of sentences to specific treatment and training objectives.
Various stakeholders – including parole agents, coordinators, hearing officers, and attorneys – continue to assert that the matrix penalties are out of proportion to the offenses. Plaintiffs have also objected to the matrix, which they see as carrying more harsh penalties than in the adult system and in the previous juvenile system. During the Round, the parties negotiated changes to some charge codes, and the parties intend to meet and confer concerning the matrix.
Release within three days if time has been served (¶ 38): Information concerning compliance or noncompliance did not come to the Special Master’s attention.
Requirements related to ADA and effective communication ADA and effective communications accommodation (¶ 23, 48, 50, 51, 53): The parties devoted substantial effort to negotiating revisions to policies and
24 PDF created with pdfFactory trial version www.pdffactory.com

Case 2:06-cv-02042-LKK -GGH Document 558 Filed 11/30/09 Page 25 of 38
procedures for identifying and addressing disabilities and effective communication needs, and they made great strides during the Round. A revised policy reportedly is nearing distribution. They reached agreement, memorialized in a stipulation and order, on a method for summarizing key disability, effective communication, and necessary accommodation information, discussed supra.
Identification and tracking (¶ 52): Identification: LH procedures require staff to review parolees’ files and databases for disability and effective communication information, and to record and transmit it at various steps in the revocation process. Although the procedures have been institutionalized, they are not yet working well.
With some frequency, reviewers do not record disabilities readily available in the revocation packet, the principal purpose of the form.38 There appears to be a pattern of omitting parolees’ reading level, a significant indicator for whether there may be effective communication needs; Plaintiffs also cite some instances in which it was inaccurately recorded.39 Plaintiffs also question instances where learning disabilities or special education needs are identified and staff indicated no accommodations were necessary. Occasionally, new issues surface during hearings but are not recorded on the form for future use. On the other hand, Defendants improved their revocation database to allow the capture of more detailed ADA-related information.40
Tracking: Defendants began operating a different disability tracking method during the Round but, as Plaintiffs note, the reports serve limited purposes. Although they are meant to indicate when Defendants planned and provided accommodations, there is
25 PDF created with pdfFactory trial version www.pdffactory.com

Case 2:06-cv-02042-LKK -GGH Document 558 Filed 11/30/09 Page 26 of 38
little specific information about the types of needs or accommodations, whether they were provided at each necessary step, and which individuals were accommodated. Defendants’ data system indicates that there were no instances when a parolee requested an accommodation and it was denied.41 The lack of clarity and specificity must be addressed to have a functioning identification and tracking system. Partly as a result, the Special Master is unable to comment in this report concerning accommodations.
The need for identification and tracking is particularly high in a juvenile system. While actual numbers have not been established, a variety of sources suggest the need is far higher than that identified in the tracking system to date..42 The combination of missed information in forms, incomplete assessment during hearings, and reports insufficiently detailed to provide oversight creates great risk for whether these important needs can be met.
Forms in alternative formats (¶ 55): No new information came to the attention of the Special Master.
Prohibition of discrimination in parole placements and referrals to services (¶ 27): Information concerning this requirement did not come to the Special Master’s attention.
Develop an ADA grievance procedure (¶ 54): Interim procedures contain an ADA grievance procedure, described in the second report of the Special Master. Defendants report receiving no ADA grievances in 2009.43
26 PDF created with pdfFactory trial version www.pdffactory.com

Case 2:06-cv-02042-LKK -GGH Document 558 Filed 11/30/09 Page 27 of 38
Development of an appeal process (¶ 43): Defendants’ appeal process handled 20 appeals concerning revocation or revocation extension during the Round,44 80% of which appear to have been answered within 10 business days after receipt, as required. Commonly, responses were completed in an additional day, and the longest time to response was four business days late.45 Plaintiffs assert that some appeals are stamped as received substantially after the date of signature, suggesting a further delay in some response times. CalPAP tracking shows that it received notice of all decisions within the required five business days; it is unknown whether decisions also reached parolees in this time. Each appeal response contained a detailed description of the sources reviewed, the claims, and the reviewer’s reasoning. Appeals most commonly concerned a finding of good cause, the length of revocation terms, or the desire for another disposition. Others charged that a Board order inaccurately reflected proceedings, the decision review process was handled unfairly, hearing officer bias, failure to take into account the impact of mental health, that time credit related to extradition and a late hearing were incorrectly calculated, and that a finding was based on hearsay improperly admitted under Comito or on insufficient evidence. The latter three appeals were particularly well handled. Onethird of the appeals were granted in whole or in part, including the evidentiary questions. Defendants document five requests for tapes in recent months. These requests reportedly were filled in one week or less, with one exception taking 24 days.46 Defendants are also conducting a system of decision review. Reportedly, headquarters staff and the hearing officer serving as “officer of the day” review every written hearing record for adequacy of documentation, consistency with revocation
27 PDF created with pdfFactory trial version www.pdffactory.com

Case 2:06-cv-02042-LKK -GGH Document 558 Filed 11/30/09 Page 28 of 38
process policy, and for any mistake of fact or law. Where a decision is thought to have substantial flaws in one of these areas, a decisionmaker reviews the case and, if (s)he agrees, reverses the decision and orders a rehearing.
Defendants do not track these decisions. While CalPAP has begun tracking, there have been instances when it was not notified,47 or learned with insufficient time to prepare for the rescheduled hearing. This latter practice was described in an appeal, which alleged that the original Board order did not accurately capture the hearing findings and outcome but was not provided until the attorney was notified that the case had been reversed and the rehearing was the following day. The reversal included a direction to amend the charge, which was honored at the rehearing but amended again and without notice back to the original charge, before the revocation hearing. In decision review cases in general, the rationale and the course of proceedings is not always evident from hearing records. All of the aforementioned facts raise substantial questions about due process.
It appears that reversal has been employed in three probable cause hearing decisions during the Round.48 In each, the original hearing result was to continue on parole, dismiss the case, or mitigate below the matrix’s range of penalties. Cases were reheard after six days, three weeks, and three and one-half weeks. The results were the same in two cases and another ended with a return to custody for 12 months.
The following comments from the Second Report of the Special Master bear repeating: Such a process must be conducted with more transparency, and must include providing counsel and other interested persons the rationale for reversing a final result. It is an open question whether the criteria being applied are consistent with policy
28 PDF created with pdfFactory trial version www.pdffactory.com

Case 2:06-cv-02042-LKK -GGH Document 558 Filed 11/30/09 Page 29 of 38
standards; Plaintiffs and CalPAP contend that it is not. If scheduling a rehearing carries a risk of extending the parolee’s time in custody, Defendants should make every effort to rehear that case in the shortest time possible.
Comprehensive annual training on ADA and effective communication, the Stipulated Injunction's requirements, policies and procedures, due process (¶ 56):
Defendants assert that they have conducted extensive training on various requirements through 2008 and 2009, some of which the Special Master observed and found to be beneficial. Plaintiffs have objected to the adequacy of these trainings, particularly concerning disabilities and effective communication needs.
The Board receives short, frequent trainings in conjunction with its regular meetings. Paroles staff participated in refresher training in September 2009. Plaintiffs attend trainings and provide feedback on content and on practice problems evident in trainees’ discussion. Plaintiffs object that they receive materials with little or no time for comment ahead of trainings, and sometimes receive little notice of the trainings.
Further training for all divisions is anticipated in the coming months.
Tracking mechanism for timeframes and reasons for delay (¶ 13, 32, 33): Defendants employ a complex information system that facilitates many aspects of compliance and tracking performance. During the Round, they continuously refined its operations, releasing several upgrades. Perhaps most importantly, they added the ability to scan revocation packets into the system, making critical information simultaneously available to the divisions and parolee attorneys. This removes several obstacles to timely
29 PDF created with pdfFactory trial version www.pdffactory.com

Case 2:06-cv-02042-LKK -GGH Document 558 Filed 11/30/09 Page 30 of 38
procedures and hearings, quickly overcoming problems that some other systems have struggled with for years.
The system is well-designed to capture nearly all needed data points. Some reports need refinement to make better use of that available information and to troubleshoot a few inaccurately operating functions. There are staff dedicated to these improvements and the Mastership is confident that they can be accomplished.
Field staff are evidently learning; predictably, this sometimes results in overwriting records or other actions that can make records difficult to follow or appear inaccurate. Nevertheless, improvements over the prior Round are clear and the system is producing better information on which to make management decisions and compliance assessments. As mentioned in previous reports, erratic access to the system, particularly in non-DJJ facilities, undermines the reliability of information and of the revocation systems themselves, and the ability to demonstrate compliance. Seven locations were discussed during the Round where internet access was periodically or permanently unavailable; these may be in addition to facilities noted in prior reports of the Special Master. These included DJJ facilities, a CDCR adult institution, and county jails. In most instances discussed, staff had a nearby alternative, but some had to wait to transcribe information until much later in the day after the hearings concluded. The risk of inaccurate information seems to have been realized in two known cases in which the parolee’s attorney or Plaintiffs’ counsel allege that the hearing record contains an outcome different from the Board’s verbal order.49
Monitoring process
30 PDF created with pdfFactory trial version www.pdffactory.com

Case 2:06-cv-02042-LKK -GGH Document 558 Filed 11/30/09 Page 31 of 38
In previous Rounds, the parties reached agreement concerning a detailed monthly production of documents and recordings by which Plaintiffs may review some aspects of the remedy’s implementation. Defendants have provided those materials monthly. Plaintiffs have raised concerns about the completeness of productions and the accuracy and utility of some documents.50 The parties are considering revisions to the production.
The parties have also agreed to a number of onsite visits by Plaintiffs’ counsel in 2009. Plaintiffs have conducted six independent monitoring tours and accompanied the Mastership on three tours to date. For the most part, Plaintiffs reported good access to the facilities and staff, though there was one exception. Plaintiffs are seeking to negotiate modifications for future monitoring, particularly to view the conduct of requirements they have not yet been able to observe. The parties remain in disagreement concerning whether Plaintiffs are entitled to conduct post-settlement monitoring.
The Stipulated Injunction requires Defendants to develop a self-monitoring team to ensure compliance with its terms and with relevant policies and procedures (¶ 57). Defendants have made good strides in this regard. They initiated this process by forming a workgroup comprised of staff from CDCR’s Office of Audits and Compliance and subject matter experts from each affected program. The workgroup designed an audit tool, including methods for measurement, for attorney standards and representation. Office of Audits and Compliance staff and CalPAP reportedly have begun to apply the tool, including observing hearings.
As the next step, the workgroup has designed three division-specific audit tools for reviewing accommodations and effective communication. The Defendants plan to have the audit team perform a 30-day follow-up to assure that corrective action has occurred.
31 PDF created with pdfFactory trial version www.pdffactory.com

Case 2:06-cv-02042-LKK -GGH Document 558 Filed 11/30/09 Page 32 of 38
For an extended period, Defendants have convened regular, multidisciplinary meetings to design and troubleshoot the processes. Recently, the group added a very helpful oversight mechanism. Each division identifies cases that were late at a step the division is responsible for; the division investigates each, puts in place a remedy, and reports each of these components to the group monthly. These are excellent problemsolving and accountability measures.
Important functions are in place for internal oversight, a critical foundation for reaching compliance and for demonstrating the state’s ability to resume responsibility for full oversight of its system. Some of the next steps should include revising information system reporting capabilities to capture key information that is currently not accessible, and to improve accuracy in a few respects. Similarly, staff will need to continue to work on their skills and consistency in use of the system to increase its reliability.
Revocation may be extended only after a revocation extension hearing, and parolee must receive copy of decision (¶ 35, 40):
DJJ is operating a revocation extension system, which handled 16 cases during the Round.51 There is indication that the frequency is increasing, however.52
There are timelines associated with each process step, and compliance ranges from moderate to poor. Where cases were late, they tended to miss the mark by weeks. In specific:
• Notice was timely 63% of the time. Late notices ranged from two to 33 days late.53 • Documents were provided to Juvenile Parole Board staff within timeframes in only
47% of the cases.54 • Documents were provided to CalPAP timely 75% of the time.55 While DJJ reduced
some of the time created by late notices, late appointments took an extra 11 to 25 days.
32 PDF created with pdfFactory trial version www.pdffactory.com

Case 2:06-cv-02042-LKK -GGH Document 558 Filed 11/30/09 Page 33 of 38
• The Revocation Extension Assessment was completed timely in 80% of cases.56 • Probable Cause Hearings were held timely in 75% of the cases. Late cases were
held one to three weeks late.57 • Revocation hearings fared better. Among the three held, two were timely and one
was three weeks late.58 The Special Master does not have information concerning whether parolees are receiving copies of their written hearing records.
Policies and procedures governing dual commitments (¶ 45): While Defendants have a policy governing dual commitments, information suggested periodic problems when juvenile parole officers attempted to coordinate with adult parole officers. Plaintiffs also note that, if revocation actions proceed under both systems, there is a risk of duplicate sentences and of evidence or a finding in one system’s hearing being used in the second system’s hearing.
Elimination of “temporary detentions”; immediate rescission of relevant regulation (¶ 39):
The Stipulated Injunction requires Defendants to “immediately rescind Title 15, California Code of Regulations § 4985,” which concerns this practice. Defendants report that this regulation and Title 15, California Code of Regulations § 4826 were repealed in prior Rounds.
Summary Defendants continue to make good progress in building a solid revocation system. Systems are beginning to function more consistently, there is sustained effort to examine
33 PDF created with pdfFactory trial version www.pdffactory.com

Case 2:06-cv-02042-LKK -GGH Document 558 Filed 11/30/09 Page 34 of 38
and address deficient practices, and the parties are reaching more agreements on policy. Most compliance numbers tend to be moderate but improving, a reasonable posture at this stage of implementation. Budget cuts, including furloughs, carry the risk of impact on Defendants’ practices; it will be important to continue to monitor the State’s ongoing budget crisis and its effect on Defendants’ ability to comply with the Court’s orders and the parties’ negotiated policies and procedures.
In broad strokes, the system is functioning as follows. Parolees commonly receive notice of their rights and charges timely; the majority of written notices provide information sufficient to prepare a defense, but a significant minority does not. Electronic and paper documentation, and practices during hearings, do not clearly establish that disabilities and effective communication needs are being identified consistently, and there is a risk that such parolees are not being accommodated.
Attorneys outside the CalPAP system are routinely notified of parole holds; this practice can be late, but almost no such attorneys have opted to undertake representation. The system for CalPAP representation operates smoothly. Although DJJ sometimes provides initial information late to CalPAP, it appears attorneys have been appointed to all youth facing revocation during the Round, and attorneys report having sufficient time, information and conditions to represent clients well.
Probable cause hearings are conducted largely on time by hearing officers who take the task seriously and work hard to seek the balance between public safety and what is good for the parolee. Parole agents have improved the quality of information on which to make a probable cause assessment. To better preserve due process, all concerned need a greater understanding of the elements of violations. Nevertheless, a significant number of
34 PDF created with pdfFactory trial version www.pdffactory.com

Case 2:06-cv-02042-LKK -GGH Document 558 Filed 11/30/09 Page 35 of 38
charges are dismissed or amended for this reason, prior to or during this proceeding. Also, a significant number of violation behaviors are addressed by the parole units without proceeding to hearing, and other hearings are conducted in the community without taking the parolee’s liberty.
The number of revocation hearings continues to decrease, as resolution is achieved at earlier steps. Most are held timely, including those for special populations such as extraditions and parolees who activate optional waivers. Some of the greatest difficulties occur in revocation hearings, as hearing officers struggle with new practices of taking evidence, assessing the competence of potential evidence, and matching evidence to the elements that the state is required to prove. Great care is taken with dispositions. The internal practice of “decision review” leads to some rehearings; some of its execution has been problematic and raises due process concerns. Decision review has the potential to be a helpful function in addressing some of the lack of evidentiary knowledge, but greater transparency is needed. Parolees and their attorneys are making use of the appeals system, and some cases have been overturned or modified in parolees’ favor.
There are, of course, many more nuanced requirements in this litigation, as discussed supra, but in general, this is a picture of a reasonably functioning system, given the early stage of implementation, that is greatly improved by the parties’ efforts over the past 16 months. The Special Master makes no recommendations at this time.

Chase Riveland /s/Chase Riveland
Special Master

November 25, 2009

35 PDF created with pdfFactory trial version www.pdffactory.com

Case 2:06-cv-02042-LKK -GGH Document 558 Filed 11/30/09 Page 36 of 38
1 Monitoring reports for Heman G. Stark and Preston correctional facilities 2 Informal communications with Defendants 3 Defendants’ Compliance Report, Oct. 14, 2008 4 Closed Case Summary – LH Timeliness Cases, May 1 through Sept. 30, 2009; Closed Case Detail of the PCD step on that report. Additionally, there were a small number of open cases at any given time, but their timeliness could not be determined because those reports showed indicia that they lack reliability. 5 Closed Case Summary – Extradition Cases, May 1 through Sept. 30, 2009. While this report shows late cases, on examination of those individual cases, each shows an agent-supervisor conference within two business days after the parolee returned to California. The number of open extradition cases is unknown, so this may underreport this population somewhat. 6 Closed Case Summary – NIC Referral Cases, May 1 through Sept. 30, 2009. Two cases were initiated months after discovery to accommodate court proceedings or in an attempt at more informal handling. The number of open extradition cases is unknown, so this may underreport this population somewhat. 7 The Special Master reviewed an accidental sample of 45 individuals’ records drawn from the monthly productions. Given the sample size and selection method, this may or may not be representative. 8 DJJ Notice of Rights Compliance Report for each of May through Sept. 2009; Closed Case Summary – Extradition Cases and Closed Case Summary – NIC Referral Cases, each run for May 1 through Sept. 30, 2009, and all individual cases on the latter two reports. Note that Hearing Decision NIC cases are included in the preceding reports.
Note: although Defendants’ revocation database has reports for notice of rights, they are not currently accurate. Information can only be discerned by reviewing individual cases. For this reason, the Special Master analyzed all individual cases in the special populations, but not the greater than 400 mainstream cases, relying instead on the CalPAP reports.
There are a few populations not captured here, but they are unlikely to make an appreciable difference. Cases with holds initiated before Feb. 1, 2009 are not included. CalPAP reports show 12 such cases in May and June; these are the only months demonstrating this difference, but it is likely the pre-February holds would have been eliminated by July, or nearly so. DJJ Cases Closed, and DJJ Cases Closed With Hold Date After Feb. 1, 2009, for each of May and June 2009.
“Non-707(b)” cases – a class of juveniles for whom responsibility has been returned to the counties – extremely rarely are charged mistakenly in the DJJ system before being transferred. CalPAP records seem to reflect only two during the Round. DJJ Cases Closed, May through Aug. 2009
Open cases for every population were not included in this analysis. 9 This is a measure used throughout CalPAP’s data. It does not necessarily signify a threshold for compliance. 10 NOR Unsuccessful – Will Retry and NOR Unsuccessful – Will Not Retry, each run for May 1 through Sept. 30, 2009, and cases underlying them. These reports total 12 cases once the duplicates and data entry errors are removed. 11 The investigation occurs before CalPAP attorneys are appointed. Parolees have counsel of record related to prior criminal proceedings; some continue representation in parole revocation proceedings and some do not. 12 DJJ Date Case Assigned Compliance Report for each of May through Sept. 2009; the latter two populations constitute about 6% of those represented by CalPAP 13 Source for this paragraph is the revocation packets produced in the monthly document production and filed in the Individual Hearings folder of the Documents Relied Upon for this report. The total reviewed was 46, including three revocation extensions. Since this represents only 10% of the actions that proceeded to a step requiring counsel notification (see Closed Case Summary, May 1 through Sept. 30, 2009 Refer step for an approximate measure), and was an accidental sample, it may not be fully representative. 14 Document Production Itemization for each of May through Sept. 2009 15 Closed Case Summary – LH Timeliness Cases and Closed Case Summary - Extradition, both run for May 1 through Sept. 30, 2009, and Closed Case Detail reports related to them. Reliable figures are not available for open cases for these populations. The timeframe is not applied to NIC referrals.
36
PDF created with pdfFactory trial version www.pdffactory.com

Case 2:06-cv-02042-LKK -GGH Document 558 Filed 11/30/09 Page 37 of 38
16 Closed Case Summary – LH Timeliness Cases and Closed Case Summary - Extradition, both run for May 1 through Sept. 30, 2009, and Closed Case Detail reports related to them. Reliable figures are not available for open cases for these populations. The timeframe is not applied to NIC referrals. 17 CalPAP Requested Expedited Hearings, May 1 through Sept. 30, 2009 18 The Special Master did not conduct a systematic review, but observed this in multiple hearing records and heard references on hearing recordings to this having occurred. Individual records from the monthly document productions; see also DJJ Cases Closed, May through Aug. 2009. 19 Hearing Decision NIC, May 1 through Sept. 30, 2009 20 DJJ Probable Cause Hearing Compliance Report, each of May through Sept. 2009; Closed Case Summary – Extradition Cases, May 1 through Sept. 30, 2009. This includes extradition cases but does not include cases with holds initiated before February 2009; it also excludes not in custody cases, as Defendants do not provide probable cause hearings in that instance. It does not include the likely very small number of “non-707b” cases. To the extent that there were postponements, these would be additional to the number of proceedings indicated here. Defendants’ database contains a different total for unknown reasons. 21 It is worth noting that timeliness numbers are sometimes inaccurate because staff is not fully conversant in use of the information system. To date, errors tend to underreport timeliness as cases not closed out contemporaneously, or reopened for correction, give the false impression of late cases. 22 For the complete definition, see infra 23 The Special Master encountered 11 postponements in records originally reviewed for other purposes. 24 Hearing Decision Dismiss, May 1 through Sept. 30, 2009 25 Defendants’ Compliance Report, Oct. 15, 2009, Exhibit 4 26 This term is used to describe those revocation actions that follow the normal course. The concept excludes cases with special circumstances, such as not in custody hearings, extradition, parolee time waivers, optional waivers, and postponements. 27 DJJ Revocation Hearing Cases-Over 35 Days, run for each of May through Sept. 2009. Closed Case Summary – LH Timeliness Cases, May 1 through Sept. 30, 2009 shows 54 cases closed, with 5 late; one of these involved a time waiver and was not late, per discussions with CalPAP.
The figures in this section do not include any cases with holds initiated before Feb. 1, 2009, the date the tracking system was initiated. It was not practical to determine how many such cases existed during the Round, but it is the Special Master’s impression that there were few; CalPAP tracking indicates there were 12 known cases in May and June, most of which would have been resolved before revocation hearing if they are consistent with the rest of the population, and numbers of additional cases would predictably have diminished further in later months. 28 Open Case Summary, run on July 4, Aug. 2, Aug. 28, Oct. 14 and Oct. 19 and averaged. In this case, Open Case Summary was used because it includes extradition, activated optional waiver, and NIC cases, as there are not separate, functional reports for open cases among those populations. 29 Summary – NIC Referral Cases and Hearing Decision NIC, each run for May 1 through Sept. 30, 2009; Case Status Report for each case contained therein 30 Closed Case Summary – Extradition Cases, May 1 through Sept. 30, 2009 31 Optional Waiver Closed Cases, May 1 through Sept. 30, 2009. Although the report title may imply other meanings, the Special Master verified with DJJ staff that this report captures only the taking of an optional waiver, not any steps related to activation or subsequent hearing. DJJ Optional Waiver Activated Cases, run for each of May through Sept. 2009. The Special Master has insufficient information to assess activated optional waivers that are pending hearing. 32 CalPAP DJJ Statistics 50 Mile Report for each of Apr. through Sept. 2009 33 Closed Case Summary – Supplemental Charge Cases, May 1 through Sept. 30, 2009; Open Case Summary -- Supplemental Charge Cases Oct. 19, 2009 34 Joint Stipulation Regarding Modifications to Division of Juvenile Justice Parole Revocation Policies and Procedures, Sept. 10, 2009 35 Closed Case Summary – NIC Referral Cases and Hearing Decision NIC, each run for May 1 through Sept. 30, 2009. One case mistakenly appears on both lists, reducing the total number. Compare to Closed Case Summary for that period. 36 Closed Case Summary – NIC Referral Cases and Hearing Decision NIC, each run for May 1 through Sept. 30, 2009; Case Status Report for each case contained therein. 37 Defendants’ Compliance Report, Oct. 15, 2009
37
PDF created with pdfFactory trial version www.pdffactory.com

Case 2:06-cv-02042-LKK -GGH Document 558 Filed 11/30/09 Page 38 of 38
38 See 3.260s in Individual Hearings folder of the Documents Relied Upon for this report, Plaintiffs’ monitoring reports and letters 39 See, e.g., letter from C. Kendrick to M. Brady, Aug. 20, 2009 40 Defendants’ Compliance Report, Oct. 15, 2009 41 JSTS Denial Report, May 1 through Sept. 30, 2009 42 See, e.g., Youth with Disabilities in the Correctional System: Prevalence Rates and Identification Issues, Robert B. Rutherford et al., citing multiple studies (disabilities found to range from 20% to 60%, with some specific needs as high as 76%); CDCR Budget Concept Statement Fiscal Year 2008/09, Division of Juvenile Justice/Juvenile Parole Board (reportedly asserts 80% of its youth have a qualifying disability and 50% of the population have effective communication needs). 43 Document Production Itemization for each of May through Sept. 2009 44 Appeals submitted with the document productions for May through Sept. 2009; DJJ Appeal Cases reports for the same period; email communication from C. Chen dated Nov. 22, 2009 45 CalPAP information occasionally varied from this in minor ways, for unknown reasons. 46 Document Production Itemizations, May through Sept. 2009 47 During the Special Master’s review for the instant report, one such case surfaced. This practice had occurred in the prior Round, as well. 48 Source for this paragraph is DJJ Decision Review Cases for each of May through Sept. 2009 and the individual records in the Decision Review folder of the Documents Relied Upon for this report. 49 See Appeal Response Timeframes, July 2009, and Plaintiffs’ report concerning Sept. 2, 2009 visit to LACJ and Watts Parole 50 See, e.g., letter from C. Kendrick to M. Brady, Aug. 20, 2009 51 CalPAP DJJ Rev. Extension Cases Closed, run for each of May through Sept. 2009. The JSTS report titled Revocation Extension Closed Case Summary by Facility shows 15 cases; this is likely because two cases for one parolee were consolidated. 52 Revocation Extension Closed Case Summary for each of Sept. and Oct. 2009; Revocation Extension Open Case Summary Oct. 23, 2009 53 Calculated from the dates listed on DJJ Rev. Extension Cases Closed, run for each of May through Sept. 2009. The JSTS report shows somewhat different numbers for unknown reasons. 54 Revocation Extension Closed Case Summary by Facility, May 1 through Sept. 30 , 2009 55 Calculated from the dates listed on DJJ Rev. Extension Cases Closed, run for each of May through Sept. 2009. This is determined by adding the timeframe requirements for each step up to this point. 56 Revocation Extension Closed Case Summary by Facility, May 1 through Sept. 30 , 2009 57 Calculated from the dates listed on DJJ Rev. Extension Cases Closed, run for each of May through Sept. 2009. 58 Calculated from the dates listed on DJJ Rev. Extension Cases Closed, run for each of May through Sept. 2009.
38 PDF created with pdfFactory trial version www.pdffactory.com

 
 Case 2:06-cv-02042-LKK -GGH Document 584-1 Filed 07/23/10 Page 1 of 51

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

L.H, et al., Plaintiffs,
vs. ARNOLD SCHWARZENEGGER, et al.,
Defendants. _____________________________________/

NO.CIV.S-06-2042 LKK/GGH

FOURTH REPORT OF THE SPECIAL MASTER ON THE STATUS OF
CONDITIONS OF THE STIPULATED ORDER
Background The Plaintiffs in this case filed thei r Complaint with the C ourt on Septem ber 13, 2006. The Court certified this case as a class action by Order dated February 28, 2007. On September 19, 2007, the Court granted partial summ ary judgment in favor of Plaintiffs, holding that California' s juvenile parole revocation system, by failing to provide a timely probable cause hearing, violated the due pro cess rights of the Plaintiff class as those rights were described in Morrissey v. Brewer. On January 29, 2008, the Court held that Defendants' failure to appoint counsel for all juvenile parolees violated the due process righ ts of the Plaintiff class, according to precedent set in Gagnon v. Scarpelli. In the same order, the Court also foun d that Defendants' policies and practices
1

Case 2:06-cv-02042-LKK -GGH Document 584-1 Filed 07/23/10 Page 2 of 51
violated the Am ericans with Disabilities Act (ADA) and the Rehabilitation Act. The Court ordered the Defendants to:
(1) begin appointing counsel to represent j uvenile parolees at parole revocation hearings no later than February 15, 2008, and to provide that counsel with access to confidential contact space and the necessary files sufficiently in advance of the hearing to allow adequate preparation,
(2) allow parolees to obtain counsel of th eir own choosing, who shall be able to represent clients under the sam e terms as appointed counsel, and Defendants are to notify the parolee’s couns el of record or public defender when a hold is placed,
(3) ensure effective communication and provide necessary accommodations, and (4) develop sufficiently specific policies and procedures to ensure continuous
compliance with all of the requirements of the Am erican with Disab ilities Act during revocation proceedings. Chase Riveland and Virginia Morrison we re appointed as Sp ecial Master and Deputy Special Master, respectively, on May 22, 2008. The parties, on June 13, 2008, submitted a Stipulated Motion for Preliminary Approval of Class Settlement. The Court granted the motion on June 17, 2008 and approved a Stipulation and Order for Permanent Injunctive Relief on October 7, 2008 (hereaft er “Stipulated Inj unction”) which, am ong other requirements, incorporated the term s of the September 2007 and January 2008 orders. On April 2, 2009, the parties filed a Stipulation and Order Re: Plaintiffs’ Motion to Monitor Defendants’ Compliance with th e Stipulated Order for Pe rmanent Injunctive
2

Case 2:06-cv-02042-LKK -GGH Document 584-1 Filed 07/23/10 Page 3 of 51
Relief. The Court entered a Stipulation and Order Requiring Defendants to Take
Immediate Steps to Identify and Track Juvenile Parolees with Disabilities and Ef fective Communication Needs, dated July 7, 2009. The parties also negotiated stipulations modifying several aspects of policies and procedures, and the revocation extension penalty matrix, which this Court signed on September 10, 2009 and February 12, 2010, respectively.
Special Master Activities The Special Master observed the Defendant s’ task force and trainings f or CalPAP attorneys, hearing officers, hearings staff, a nd institutions staff. He participated in a simulation using videoconferencing equipm ent, worked with Def endants’ staff to improve information systems, and assisted th e parties’ negotiations concerning a variety of topics. The Mastership conducted intervie ws and 39 file reviews at the Bakersfield, Covina, Inland, San Fernando Valley, and San Jo se parole units and the Ventura Youth Correctional Facility. The team observed hearings at Hem an G. Stark and P reston youth correctional facilities; Southern Youth Correctional Recep tion Center and Clinic; and Los Angeles , Sacramento, Lerdo, and Sonoma county jails. Those proceedings were conducted by five hearing officers and consisted of 12 probabl e cause hearings, two revocation hearings, and one not in custody hearing. The team did not attempt to observe the service of notice on any parolees or return to custody assessments. In addition to the proceedings seen in person, the Mastership analyzed recorded and
3

Case 2:06-cv-02042-LKK -GGH Document 584-1 Filed 07/23/10 Page 4 of 51
written materials for another 21 revocation he arings, three not in custody hearings, and one revocation extension hearing, equally distributed among the five hearing officers who conduct them.
Scope and Approach This report discusses obse rvations and activities sp anning October 2009 through March 2010, collectively referred to as “the Round.” References to the Special Master’s activities frequently include the actions of a member of his team. A number of mandates consist both of procedural due process requirements and due process in how they are conducted; all aspects are included in the Special Master’s assessment. The term “mainstream cases” refers to those revocation actions that follow the normal course; it excludes cases with special circumstances, such as not in custody hearings, extradition, parolee time waivers, optional waivers, and postponements. For many of the requirem ents, the Special Master’s team conducted a study based on revocation packets, hearing docum ents, and recordings provided in Defendants’ monthly document productions, in combination with those sam e documents produced for the hearings observed during the team ’s site visits. For other requirem ents, the team studied records selected from the relevant population as identified by electronic reports. Since these sam ples were not random ly chosen, there are lim itations on their representativeness. In othe r instances, the team relied on reports generated by Defendants’ revocation database , Plaintiffs’ m onitoring reports and analyses, reports or studies conducted by the Ca lPAP attorney panel ad ministration, and som etimes documents underlying these sources.
4

Case 2:06-cv-02042-LKK -GGH Document 584-1 Filed 07/23/10 Page 5 of 51

Overview of Actions During the Round, approxim ately 507 revocation actions were handled. 1 These

actions were concluded in the following way:

% of total

Open

74

15%

Decisions to handle the a lleged violation through a 122

24%

corrective action plan, dism iss the violation charge, or

otherwise conclude it at or in proximity to th e Parole

Agent-Supervisor conference

Decisions to conclude the action during investigation 24

5%

Decisions to conclude th e action during Supervising 2

<1%

Parole Agent review

Decisions to conclude the action during Return to

15

3%

Custody Assessment

Actions concluded at Probabl e Cause Hearing, either 112

22%

through an accepted return to custody, dism issal, or

decision to continue on parole

Actions concluded by parole e invoking optional waiver 432

8%

and provisionally accepting return to custody time (right

to hearing not reactivated during the Round)

Actions concluded at Optional Waiver Review

15

3%

Actions concluded at Revocation Hearing

100

20%

Between probable cause hearings, optiona l waiver reviews, postponed hearings, revocation extensions, and revocation heari ngs, Defendants held at least 449 revocationrelated hearings during the Round.3 ///

5

Case 2:06-cv-02042-LKK -GGH Document 584-1 Filed 07/23/10 Page 6 of 51
Substantial Compliance and Other Indicators of Success In this action, the central objective of all parties and the Court is for the Defendants to operate a sustainable system that provide s fair, timely, just procedu res to juven iles accused of parole vio lations. It is beyond doubt that Defendants have estab lished important components of the rem edy, much of the infrastructure critical to institutionalizing and sustaining the needed re vocation system. It is extraord inary that they have a ccomplished this in an e xceptionally short tim e – only 18 months since the entry of the Stipulated Injunction. The Special Master ag rees with th e parties th at those accom plishments deserve recognition. To the extent th at an Injunction requirem ent has been conducted well for a sustained period, he will consid er that requirem ent to be in substantial com pliance. In some institutional litigation, “substantial compliance” has been used as an umbrella term for ultimate success. The LH Defendants argue that it shoul d be the standard for relief from judgment in this case; P laintiffs strongly contest that substantial compliance should serve as that standard. As used in this report, substantial compliance indicates a sustained period of meeting a high standard. Substantially compliant items will remain within the Stipulated Injunction, but the Special Master and Plaintiffs wi ll discontinue review of such item s unless and until a sign ificant decline in performance surfaces. Defendants are expected, and have made plans, to cont inue to rev iew these items at regu lar intervals to prevent such a decline. Substantial compliance The Special Master co nsiders the follo wing requirements to be in substantial
6

Case 2:06-cv-02042-LKK -GGH Document 584-1 Filed 07/23/10 Page 7 of 51
compliance, as described supra. The bases for reaching th ese conclusions are detailed in
the Stipulated Injunction Requirements section, infra.
• Provision of counsel during revocation proceedings (¶ 15)4 • At the time of attorney appointm ent, provision of date, tim e, and location of the
hearing (¶ 16) • Defendants shall take all reasonable steps to allow counsel to m eet with client at
least 24 hours prior to the probable cause hearing (¶ 16) • State-appointed counsel for juvenile pa rolees shall be appropriately compensated
for hearings and appeals (¶ 24) • Defendants shall develop standards, guidelines, and tr aining for effect ive
assistance of state-appointed counsel (¶ 21) • Parole revocation hearings to be held within a 50-m ile radius of the alleged
violation (¶ 36)
Well-established infrastructure
Defendants concentrated initially on designing and instituti onalizing systems to
ensure information flow and tim ely execution of the s teps in the revocation procedure.
Many of these have been successful. The pa rties have agreed provisionally that
Defendants will also assume responsibility for self-monitoring the timeliness of the items
listed below, with Plain tiffs’ input into rev iew methods, and Plaintiffs will refrain from
that monitoring.5 With the data system problems that will be described infra, it will be
important for Defendants to supplement data reports with case sampling and other review
mechanisms, which they plan to do. The Defendants will assum e responsibility for
monitoring timeliness concerning:
• Parole agent and Supervising Parole Agent conference within two business days • Notice of charges and rights within three business days • Violation report by the sixth business day after the parole hold6 • Supervisor review of revo cation packet within seven business days after the
parole hold • Timely appointment of counsel • Return to custody assessment within nine business days • Attorney will be informed of Return to Custody Assessment by the 10th business
day after the hold • Probable cause hearing within 13 business days of the parole hold
7

Case 2:06-cv-02042-LKK -GGH Document 584-1 Filed 07/23/10 Page 8 of 51
• Revocation hearing within 35 days of the parole hold • Not in custody hearing within 60 days after notice service • Appeals decided within 10 days of receip t by the Juvenile Parole Board, and
decisions provided to the parolee within five business days after their issuance
Timeliness is an im portant aspect of meeting any given S tipulated Injunction requirement. The parties and the Special Master will continue to monitor and develop the more qualitative aspects of these requirements.
Keys to success Several components have m ade Defendants’ successes possible. T hese will b e important to m aintain as they continue to work toward satisf ying the Court’s or ders. Procedurally, these include: • setting up system s so that good practi ce is sustainable and not as vulnerable as
when it is individual-dependent • whenever Defendants identify problem practices, or when these are brought to
their attention, there is quick, detailed fo llow-up to distribute better inform ation and guidance and to address obstacles to good practice • flexible, can-do attitudes among a broad variety of staff • multidivision communication mechanisms, problem-solving, and joint training Substantively, the lynchpins of effective practice to date are: • scanning of documents to make them quickly accessib le to all parties needing them in changing circumstances • attorney representation • effective attention to ongoing information system problems • remedies given for revocation hearings held late without good cause, providing for justice in the usual course and for the rare failures.
8

Case 2:06-cv-02042-LKK -GGH Document 584-1 Filed 07/23/10 Page 9 of 51

Policies and Regulations (Stipulated Injunction)
The parties agreed tha t within 90 days of the parties signing the Stipulated
Injunction, and no later than Septem ber 15, 2008, the Defendants were to develop
sufficiently specific draft policies, procedures, and plans to:
• ensure that revocation p roceedings are in con tinuous compliance with all of the requirements of the Constitution and applicable statutes,
• address a method for accurately tracking the tim eliness of hearings and other steps in the parole revocation process,
• include the timely provision of acco mmodations for juvenile parolees ’ disabilities and effective communication needs,
• provide for not in custo dy hearings, dual commitments, and parole exit meetings; and
• address such disputed issues as telephonic probable cause hearings, circumstances constituting good cause for delayed hearings, and rem edies for untimely hearings.

After intensive negotiati on among many DJJ divisions a ffected and Plaintiffs,

Defendants have distributed extensive polic ies and procedures with the purpose of

satisfying the requirements above. These serve as one of key features of an infrastructure

necessary for a sustainable, well-functioning system.

Policies and procedures have been signed and disseminated concerning revocation

extension, attorney standards, revocation proceedings for the Board, the revocation

process for the Division of Juvenile

Parole Operations, ADA and effective

communication, and exit interviews.

The parties negotiated during the Round concerning compliance standards, decision

review, mentally ill parolees, revocati on penalties and charge definitions, dual

9

Case 2:06-cv-02042-LKK -GGH Document 584-1 Filed 07/23/10 Page 10 of 51
supervision parolees, McPherson parolees, videoconferenci ng, and alternatives to incarceration. The parties are currently rev iewing the policies and pr ocedures to identify disputed items and further policies or clarif ications needed. The parties have committed to prioritizing and addressing these issues in 2010.
Notice of term s: During 2008, Defendants reported detailed methods used to provide posters and notices to Division of Juvenile Justice, CDCR, and county jail facilities. They have demons trated continued f ollow-up, periodically sending rem inders to staff about posting, and responding when Pl aintiffs occasionally note m issing posters during site visits.7
Regulations: The parties continue to work through the lengthy, complex revision and approval process on many regulations affected by the LH remedy, with Plaintiffs among those contributing comments.8 Plaintiffs object to the protracted process required to adopt or revise regulations.
Stipulated Injunction Requirements
In analyzing compliance data, the parties and the Mastership face several challenges. The principal method available for demonstrating compliance is Defendants’ revocation database, w hich tracks individual cases through the cour se of a revocation proceeding, and produces reports m eant to show the volume and timeliness of different steps. While the inf ormation system serves many purposes well, th ere are limits on the utility and accuracy of several key reports. The net result is that no firm conclusions can be reached concerning many of the need ed aggregate num bers, including overall compliance percentages of any given step.
10

Case 2:06-cv-02042-LKK -GGH Document 584-1 Filed 07/23/10 Page 11 of 51
The information system under-counts or over-counts some populations. Some are unfairly measured by shorter tim eframes than apply, while reports apply too generous a standard for som e others.9 Significant subsets do not yet appear in reports. 10 A small number of cases may move into, or disappear from, a report on different days.11
The great majority of cases are reflected accurately and consistently in reports, and compliance percentages for them are high. But, when tak en together, the small groups that are unknown, inaccurate, or variable amount to too large of a group to be unexamined. To de monstrate compliance, Defendants must work to reduce these uncertainties in the rep orts. In th e meantime, the analys is that follows m ust defer assigning overall compliance numbers.
Parole Agent and Supervis ing Parole Agent conference w ithin two business days (¶ 27):
Defendants’ revocation database reports show a large portion of the conferences, but the cases not shown m ake it i mpossible to reach overarching conclusions about timeliness compliance. The cases that can be seen in Defendants’ tracking system indicate that the vas t majority of cases are timely at this step and improvement was evident over the prior Rounds..
Among the very few known late cases, the majority were completed the following day and the longest time to completion was six days.
Defendants are very conscientious in their oversight, reportedly checking open case reports daily for the timeliness of cases at this and othe r steps; following up to rem edy any appearing late; and prepar ing and jointly discussing, on a monthly basis, analyses of
11

Case 2:06-cv-02042-LKK -GGH Document 584-1 Filed 07/23/10 Page 12 of 51
the reasons for late cases and corrective ac tions taken. It is, thus, very likely that timeliness at this step is very high.
Review of whether this conf erence fulfills its purposes rem ains for the f uture. Plaintiffs express concern that they do not know the extent of the infor mation and conversation on which this decision is based, and whether the standards are being applied correctly. Relatedly, Defendants record this decision in brief electronic form , but Plaintiffs are concerned that this does not fulfill the Stipulated Injunction’s requirements for a form for this step. The parties have begun negotiation on point.
Notice of charges and rights within three business days (¶ 28): To satisfy due process, the notice m ust contain a summary of the conduct underlying the charges sufficient for the parolee to prepare a defense. In the notices the Special Master reviewed, about 78% of summaries ranged fro m reasonable to very good, a substantial im provement over the prior Round. 12 The Covina parole unit was particularly skilled in th is area. Neither the Special Master nor Plaintiffs have observed service as it took place and therefore do not ha ve a sense o f the due process during that communication. Because of the way the database reports are written, tim eliness is particularly difficult to discern at this step. With the numbers available, however, the great m ajority of known m ainstream cases were tim ely and improvement was evident over the prior Round. All extradition cases were timely according to their standard, as were all bu t one not in custody case.
12

Case 2:06-cv-02042-LKK -GGH Document 584-1 Filed 07/23/10 Page 13 of 51
Among the known late cases, it appeared that nearly every case was completed the following day; one case was completed two days late and one not in custody case took an additional 15 days beyond the policy deadline for serving such cases.13
Defendants encountered barriers in their initial attem pts to serve seven parolees during the Round,14 but nearly all were nevertheless served timely on a later attempt. One parolee was served one business day late; the final case took place during a lockdown; the parole agent attempted service daily and was successful on the third business day past the deadline. These numbers reflect a conscien tious, effective effort to serve pa rolees quickly despite the obstacles encountered.
As described supra, Defendants take very careful m easures to oversee this step and to identify and rem edy potentially late cases. It is very like ly that timeliness compliance is very high and that there is good practice as to this requirement.
Non-acceptance of w ritten admissions to a violation of parole, or w aivers of hearing rights or the right to co unsel, made prior to the juve nile parolee meeting with counsel (¶ 17, 31):
Defendants assert that they have ceased the routine practice of asking parolees to complete waivers and written admission forms. The Special Master has not encountered these forms in more than 100 revocation packets reviewed in 2009 and 2010.
Plaintiffs object to parole agents taking oral statements at the service of notice of rights and charges and during the investigation, before CalPAP counsel is appointed;15 the parties disagree as to whether this practice is permissible under the Stipulated Injunction.
13

Case 2:06-cv-02042-LKK -GGH Document 584-1 Filed 07/23/10 Page 14 of 51
Violation report within six business days (Exh. A): The Special Master reviewed 55 violation reports for the sufficiency of evidence to support the elements of the charges; in the Mastership’s opinion, 78% were sufficient in this regard.16 In terms of timeliness, Defendants do not currently measure the date the violation report is submitted. Rather, they go the extra mile, using the six-day period for continuing conversation about whether to refer the case for revocation or to handle the behavior in the community. It is this latter decision that is memorialized in the database. A small study by the Special Master gives an indication of good timeliness for the violation report requirement.17 While 85% of the sample met the timeframe, late reports appeared to have almost no negative effect, as all but two supervisor’s reviews -- the next step -- were timely. With the later cases in the sample, the mainstream case was delayed three business days, and one not in custody case report was completed seven business days after its policy deadline.18 As discussed above, Defendants’ oversight practices make it likely that overall timeliness compliance percentages are quite high.
Supervising Parole Agent review of packet within seven business days (Exh. A):
The Mastership has not developed infor mation about Supervising Parole Agents’ practices when reviewing the revocation packet for probable cause and for completeness. As with other steps, printouts and Defendant s’ oversight p ractices suggest that tim ely completion of this step is high but a def initive rate cannot be established. All extradition
14

Case 2:06-cv-02042-LKK -GGH Document 584-1 Filed 07/23/10 Page 15 of 51
and not in custody cases were timely according to their standards. Among the few known late mainstream cases, the longest tim e to completion was an addition al two business days.19
Requirements concerning attorney representation Provision of counsel during revocation proceedings (¶ 15): Defendants have had a system operational since February 2008 to appoint attorneys
for all paro lees in revo cation proceedings. The Di vision of Juvenile Justice routinely informs CalPAP, the adm inistrator of the attorney panel, of cases set for probable cause hearings or not in custody revocation heari ngs, and CalPAP attorney s represent parolees in these pro ceedings. There is also a m echanism to notify crim inal counsel of record, which will be discuss ed infra. No instances h ave come to the attention of the parties or the Special Master in which a parolee was unrepresented. Given that represen tation is now the norm, it is difficult to imagine that any such lapse would go unnoticed.
The attorney appointment system is a key feature of the infrastructure necessary for a sustainable, well-functioni ng revocation system. Appointm ents have functioned well for a sustained period and the Special Master considers this requir ement to be in substantial compliance.
Timely appointment of counsel (¶ 16): The Juvenile Parole Board greatly impr oved the timeliness with which it pr ovided the information necessary to appoint attorney s. Attorneys were appointed tim ely for the vast majority of known m ainstream cases and all extradition cases. In each of several months, only one to three cases were late. Late cases were completed within an additional
15

Case 2:06-cv-02042-LKK -GGH Document 584-1 Filed 07/23/10 Page 16 of 51 four days.20
Defendants’ policies call for attorneys to be app ointed for not in custody cases by the 21st day after no tice of charges has b een served. In the cases th at proceeded to hearing, 10 had timely attorney appointments and one was conveyed to CalPAP five days late.21.
State-appointed counsel for Juvenile Paro lees shall be appropriately com pensated for hearings and appeals (¶ 24):
The payment structure to CalPAP include s payment for hearings and appeals. No issues have been repo rted to the Special Master. Th e Mastership considers this requirement to be in substantial compliance.
At the time of attorney appointm ent, provision of date, time, and location of the hearing (¶ 16):
Defendants are com pliant with this prov ision, as CalP AP reports that it is provided these pieces of information at the same time it receives the packets. This system has been in place since implementation, and the Special Master considers it in substantial compliance.
At the tim e of attorney appointm ent, provision of a copy of all the evidence on which the State intends to rely or which m ay be exculpatory; evidence not provided with at least two days’ notice shall be excluded unless the state shows good cause (¶ 16, 19):
16

Case 2:06-cv-02042-LKK -GGH Document 584-1 Filed 07/23/10 Page 17 of 51
Attorney interviews have indicated that they generally receive the state’s evidence timely. Seven objections cam e to the Special Ma ster’s attention, and they were handled reasonably. Hearing officers determ ined, after questioning, that the evidence had been provided in sufficient tim e according to the standard in two cases; they appropriately excluded the evidence in other cases. 22 An additional objection is shown as denied in CalPAP’s tracking but it is not recorded in the hearing order.
In addition to the questions of ti mely provision, there has been a concern that th e quality of some photocopies of photographic evid ence is so poor that it gives counsel an inadequate ability to judge the quality of the evidence and prepare a defense. The parties remain in dispute ; in th e meantime, Defendants have issued instruction to address the problem.
At the tim e of attorney appointm ent, provision of relevant educational, m ental health and disability identification and source documents (¶ 16):
Defendants completed, ahead of the partie s’ stipulated deadline, a l arge-scale review of files and electronic databases to incorporate disability information for lawyers and others into a summary form . These summ aries will serve to provide educational, mental health and disability inform ation to attorneys ongoing. 23 The for ms the Special Master reviewed generally contained detailed disability infor mation including citations for the source material within the file; accommodations were included rarely.
A dispute remains about what is sufficien t to satisfy the requirem ent to provide source documents.
17

Case 2:06-cv-02042-LKK -GGH Document 584-1 Filed 07/23/10 Page 18 of 51
Right to be represented by counsel of c hoice; process for tim ely notifying of the counsel of record of the imposition of a parole hold (¶ 18):
In the Special Master’s revi ew of 79 files, a form was routinely used to notify public defenders and private attorneys of a pa role revocation proceeding for their clients. Only 62% were provided in the tim e mandated by policy, though this represents improvement, and another handful were pr esent but undated. The Oakland parole unit had perfect performance on this requirement in this study.
A substantial m inority of for ms were sent one to five busi ness days late, and notices were m issing altogether in 11% of reviewed files. This, of course, can significantly impact parolees’ ability to employ non-CalPAP attorneys. The San Jose parole office had the furthest to go to satisfy this requirement.24
Documents indicate that only three attorneys outside of CalPAP represented youth in the revocation proceedings.25
Defendants shall develop standards, gui delines, and training for effective assistance of state-appointed counsel (¶ 21):
The Stipulated Injunction requires Defenda nts to develop standards, guidelines, and training for effective assistance of state-appointed counsel in the revocation process, including standards for panel adm inistration, training and continuing education, quality assurance, independence, statewide oversight and individual repr esentation. The parties negotiated such standards, which were finalized on March 25, 2009, although Plaintiffs maintain some objections. The policy appears to contain all of the required com ponents. The Special Master considers this requirement to be in substantial compliance.
18

Case 2:06-cv-02042-LKK -GGH Document 584-1 Filed 07/23/10 Page 19 of 51
Attorney will be informed of Return to Custody Assessment by the 10th business day after the hold (¶ 30):
As discussed infra, there were few return to custody assessments known to be late during the Round. Since CalPAP has sim ultaneous access to this inform ation when it is entered, it appears there was good practice in notifying CalPAP timely during this Round.
Defendants shall take all reasonable steps to allow counsel to meet with clients at least 24 hours prior to probable cause hearings (¶ 16):
As described above, Defendants have cons istently provided parolee inf ormation, representation materials, and hearing scheduling information well ahead of the day before the probable cause hearing. They provide access to Division of Juven ile Justice facilities and information about parole e locations. The Of fice of Audits and C ompliance audit reviewed 10% of CalPAP data and found compliance to be 85% or greater for providing gate clearance at CDCR institutio ns and a ttorneys meeting with clients by the 12 th business day; indeed, the auditor reportedly found full compliance on these issues.26
In interviews and observations during prior Rounds, attorneys inform ed the Special Master that they commonly m eet with their c lients one to thre e days ahead of hearings. In the past, at least one hearing o fficer would ask about th is point specifically, though hearing records for this Round did not reflect this specific inquiry. However, no information to the contrary has come to the attention of the Special Master.
Defendants have m et their obligation to take reasonable steps and are in substantial compliance with this requirement.
19

Case 2:06-cv-02042-LKK -GGH Document 584-1 Filed 07/23/10 Page 20 of 51
Adequate time for representation ; reasonable access to clien ts and files; confidential phone calls and space in which to meet; obser ving staff cannot participate in proceedings (¶ 20, 23):
All counsel observed since im plementation have been well-prepared, suggesting that they have had adequate tim e; similarly, none have expressed a concern about insufficient time or inf ormation available. To the Special Master’s knowledge, none of the parties has undertaken a system atic review of these questions, which would be beneficial to supporting a finding of substantial compliance in the future.
Return to custody assessment within nine business days (¶ 29): The Special Master was unable to observe hearing officer practice in assessing at this stage probable cause and the need for continued detention. At least 15 cases were continued on parole at this step, and anot her was dism issed for insufficien t evidence, supporting an inference that hearing officers are applying these criteria.27 Timeliness among known cases was excellent, with only five cases determined to be late. All of those were com pleted the following day except one that was delayed by three days.28 The not in custody policies do not assign a timeframe for return to custody assessments; the attorney appointment, which ordinarily occurs the day before this assessment, is requ ired by the 21 st day after notice of charge s. All return to custody assessments for these cases occurred well within that time during this Round.29 With a substantial num ber of the ca ses unknown, overall tim eliness compliance cannot be determ ined.30 The consistency of practice in kn own cases, the centralized
20

Case 2:06-cv-02042-LKK -GGH Document 584-1 Filed 07/23/10 Page 21 of 51
procedure for handling this step within hours after packets arrive in the office, and the close oversight exercised by Defendants, suggest that the overall tim eliness rate is very high.
Probable cause hearing requirements Expedited probable cause hearings (¶ 26): There have been no requests for expedited probable cause hearings in any Round to date.31
Probable cause hearing s within 1 3 business days after the hold is placed, including written bases for findings (¶ 32, 40):
Nature of Hearings The Special Master had an opportunity to observe 12 probab le cause hearings conducted by five hearing officers during the Round. Defendants concentrated on im proving ADA reviews and the results are evident. Where previously hearing officers asked questio ns that sugg ested that a parole e should disclaim any need for a ccommodations, several hearing officers have been successful in no longer using that approach and creatin g an open, comm unicative atmosphere to explore known disabilities and to increase understanding. A significant m inority of hearing officers still need im provement in this regard, but in general, practice is much more likely to elicit d isability disclosure and help with understanding. In th e relatively rare cases of parolees with apparent, seriou s cognitive lim itations, it is not clear that hearing officers and attorneys are aware of how to adjust their approach, as needed for an accommodation, and they could use more support in this regard.
21

Case 2:06-cv-02042-LKK -GGH Document 584-1 Filed 07/23/10 Page 22 of 51
Several hearing officers review the parole e’s rights, give instruction about how to exercise them, and orient the parolee to what to expect. More consistency is needed in these practices. For the most part, they read the charges and the basis, and take pleas.
It is problem atic that, on som e occasions, some found proba ble cause without inviting or appearing to consider counsel’s arguments. Some carefully consider whether there is evidence for the elem ents of the violations, while others do not do this effectively.
When articulating the basis for finding probable cause, hearing officers can improve by citing the facts as well as the source document. Hearing officers appropriately require independent evidence in conjuncti on with an adm ission. Several dismissed charges or entire cases for insufficient eviden ce, occasionally expressly for the failu re to prove an elem ent. Several appropriately hand led jurisdiction questions and worked to ensure that the parolee was making knowing and intelligent waivers and other choices.
There is insufficient consideration of probable cause to detain articulated during hearings. On the other hand, alternatives to in carceration were discussed in about half of the hearings and granted in m ost cases disposed of at this step.32 Thus, hearing officers may be combining these two analyses; if this is true, all agree that this is problematic.
In general, there is so me difficulty with written records accurately capturing aspects of the proceed ings. This may take th e form of not record ing objections o r the presence of participants or observers, incomplete descriptions of reasoning, or com puter glitches leading to inaccuracies.33 This can be exacerbated when staff do not have access to the internet-based program during the hearing. One hearing officer has excellent practice in contem poraneously recording objections and othe r key f acts, keeping it in
22

Case 2:06-cv-02042-LKK -GGH Document 584-1 Filed 07/23/10 Page 23 of 51
balance with atten tion to the paro lee and attorney, and in creasing the possibility f or accuracy.
There are different system s for providing the record to the parolee depending on the facility. Staff have ease with these systems and they could well be sufficient. CalPAP reports receiving only one com plaint that a parolee did not receive his docum ent. It would be beneficial to audit these practices to ensure they are effective.
Timeliness There are a num ber of different scen arios to factor in to an assessm ent of timely probable cause hearings. Most of Defendant s’ practices show good results; com pliance percentages are lowered by the tim e it takes to reschedule some postponed cases and by the cases in the data system whose outcomes are unknown. Both extradition cases and the co mpleted cases that follo wed the us ual course continued to show a very high rate o f success and rates continue to improve each Round. The open cases that could be discerned showed a similar, high rate. Additionally, at least 9% of the total cases were ope n cases that could not be view ed and, thus, their timeliness was unknown.34 It is also necessary to exam ine cases where time waivers or postponements were taken, as they were at least 6% of the total probable cause hearings duri ng this Round, and could be greater. 35 At present, there is no systematic way to iden tify cases that were postponed and have subsequently closed. Add itionally, the database m easures timeliness for these cases as of the orig inal hearing that was postpone d, not the ultim ate hearing in which the probable cause assessm ent took place. Because postponem ents can substantially extend th e time to probable cause hearing, ad versely to the parolee if not
23

Case 2:06-cv-02042-LKK -GGH Document 584-1 Filed 07/23/10 Page 24 of 51
requested by him , these issues are of partic ular concern to the Sp ecial Master and t o Plaintiffs.
Reasons for postponements included, the parolee being out to court, quarantine, a private attorney’s schedule, m edical and psyc hiatric crises, parolee req uest, failure of transportation, lack of jail access, evidence availability, and Defendants’ decision review.36 While the parties have agreed to a ge neral definition of good c ause for delay, they have not decided about its specific application to all of these topics, and Plaintiffs have asserted their objections to postponements based on the latter four. Defendants have offered to prepare a sum mary of any restrict ions on access to county jails, which will be useful in examining one of the causes of delays and postponements.
In any event, there is an obligation to return postponed cases to the calendar in a reasonable time. There was excellent practice in all seven identified cases in which the parolee made a tim e-specific waiver, as Def endants set the rescheduled hearing within the time requested. With other postponements, while a reasonable length of tim e has not been established, about 78% m et the conservative standard of a w eek, and a significant minority exceeded it. Very rarely, serial postponements led to probable cause hearings in the 30- to 60-day range.
Thus, while mainstream operations achieve a high level of tim eliness, there are an increasing variety of populations unknown at this step, which may affect tim eliness numbers as more information develops.
24

Case 2:06-cv-02042-LKK -GGH Document 584-1 Filed 07/23/10 Page 25 of 51
Definition of presum ed prejudice (¶ 32): Defendants a ssert that the parties negotiated one definition to be used f or both types of hearings, while Plain tiffs indicate that a definition applying to probable cause hearings remains to be developed.
Mechanical restraints at hearings (¶ 46): The Stipulated Injunction requires Defe ndants to develop policies, procedures,
and training concerning restraints that ar e consistent with the ADA, the Rehabilitation Act, the due process clause, and Title 15 Ca lifornia Code of Regul ations section 4034.4. The Stipulated Injunction prohi bits any policy requiring univer sal use of restraints in revocation proceedings.
Defendants issued policies in compliance with this requirement during the Round. The Special Master ob served restraints practices onsite and in hearing records, and interviewed staff concerning them . Among 57 cases reviewed, 25 parolees were not restrained. Defendants’ staff ex ercised discretion to restrain nine parolees; about half were restrained acco rding to the ag reed criteria, while it was not clear that th e reasons met policy in four instances. Another 18 were restrained in deference to county jail or CDCR policy. Staff did not record restraints use in about 10% of this sample.
Plaintiffs strenuously object to Defendants deferring to the policies of county jails and CDCR adult institutions, som e of which requi re universal use of restraints, contrary to the terms of the Stipulated Injunction. Reviews have not been comprehensive, but have identified 14 county jails and all CDCR adult institutions as requiring universal restraints, while another five permit DJJ staf f discretion or the parolees ar e physically separated from others and therefore not restrained. Plai ntiffs are also concerned th at DJJ facilities
25

Case 2:06-cv-02042-LKK -GGH Document 584-1 Filed 07/23/10 Page 26 of 51
may not be following th is Stipulated Injunction requirement; examples to date su rfaced solely at o ne institution that ha s since c losed. However, the parties have agreed to mediate concerning these difficult topics.
Additionally, Los Angeles County Jail’s ro utine practice of restraining prisoners to furniture and the floor is objectionable and is counter to the parties’ s tipulation and order entered in September 2009. The parties agreed in 2009 to approach the jail to address this but, to the Special Master’s knowledge, this has not been undertaken.
Requirements related to revocation hearings: Final revocation hearing on or before 35 calendar days after the parole hold is placed (¶ 33):
In assessing this requirem ent, there are a number of considerations. The system must consistently provide timely hearings in th e usual course of revocation proceedings. It must also function to provi de hearings timely to special populations, sometimes small groups whose circum stances dictate counting timelines differently or suspending and resuming proceedings o nce conditions have been m et. In o peration, the hearings must provide due process, satisfying questions su ch as fairness, opportunity to be heard, elements of the violation proved sufficient fo r the applicable standard, and consideration of appropriate sanctions.
Nature of Hearings The Special Master had the opportunity to review 25 hearings, recorded or in person, held by all five of the hearing officers who conduct them. Many of the
26

Case 2:06-cv-02042-LKK -GGH Document 584-1 Filed 07/23/10 Page 27 of 51
impressions described concerning probable cause hearings apply to revocation hearings, as well.
ADA practices are clearly improved after training and practice, with about half meeting standards well.37 Orientation was carefully done. Hearing officers noted jurisdiction questions in a few cases. A small minority routinely did not cover parolees’ rights at all.
The Special Master, the parties, and CalPAP attorneys have observed the need to strengthen the handling of the legal issues that arise. Commonly, parolees exercise their rights to be heard and present evidence, with a few exceptions discussed infra. The practice of providing evidence timely to parolee’s counsel is generally handled well, as noted supra.
The handling of the right to confront accusers is not as skillful. It does appear that hearing officers assess the reasonableness of a witness’ claim of fearfulness before excusing that witness’ presence, and DJJ makes available a procedure to balance those needs with the parolees’ when such witnesses appear. CalPAP records reflect Comito objections raised in 10 cases;38 the Special Master reviewed those as well as five cases from Plaintiffs’ or the Special Master’s monitoring and four cases in which the objection arose in the monthly production of recordings. Hearing officers are beginning to make use of the balancing test factors, and progress is evident after enhanced training in December 2009. As with any complex test, much more practice will be needed before there is mastery. Written orders, in particular, do not reflect a complete understanding. In a significant minority, the objection was not noted in the Board Order at all. Objections were granted and denied in approximately equal numbers.
27

Case 2:06-cv-02042-LKK -GGH Document 584-1 Filed 07/23/10 Page 28 of 51
Defendants are mindful of determining whether the parolee is accused of a genuine violation of law or parole conditions. They have distributed definitions of certain charges, negotiated with Plaintiffs, to increase predictability of expectations and responses to alleged violations. Defendants have also sought to increase staff’s knowledge concerning constitutionally valid parole conditions. Hearing officers exhibit an increasing sensibility about what’s fair and right to introduce as evidence and have steered participants away from irrelevant or prejudicial offerings.
As with probable cause hearing records, Plaintiffs have noted a number of instances in which the written record omits or, in their opinion, inaccurately captures the proceedings. It has been a problem when records don’t capture key content or reflect mistakes; additionally, because of some routine administrative functions, one cannot consistently determine some basic information such as which hearing officer presided and which witnesses appeared. The revocation system will benefit when these practices can be improved.
As to outcomes, two-thirds of the cases reviewed were dismissed or the parolee continued on parole. Returns to custody were evenly distributed across a range of six months to one year. Alternatives to incarceration were often discussed, but this was absent in about one-quarter of the cases. Written records were sometimes inconsistent with the oral proceedings on this point.
Defendants employ a system termed Decision Review. Plaintiffs strenuously object to this system in concept and in operation. For a detailed description of the process and some issues previously observed, please see the Special Master’s third report.
28

Case 2:06-cv-02042-LKK -GGH Document 584-1 Filed 07/23/10 Page 29 of 51
Decision review’s benefits include a quick review and the likelihood of generating more rigorous and well-supported decisions. It can also disadvantage parolees in that State actors commonly invoke this process, which can undo the final hearing on which the parolee relied. Where a decision is adverse to the parolee, however, he is always provided a rehearing. The parties are working to solidify the standards and procedures for this process, and transparency in its application.

Timeliness
Although the standard data report shows 70 revocation he arings, all told, there
were actually 100. To understand this population and its tim eliness, one must be able to
assess:
• mainstream cases39 completed within 35 days • mainstream cases pending to be completed within 35 days • extradition cases com pleted according to the LH standards calculated from
arrival in California, rather than hold date • activated optional waiver cases, completed within 35 days after receipt of
activation request40 • activated optional waiver cases, pendi ng within 35 days after receipt of
activation request • hearings held while the parolee is not in custody and w ithin 60 days after
notice service • postponed revocation hearings rehear d within the requested tim e or a
reasonable time • postponed probable cause hearings and op tional waivers that subsequently go
on to revocation hearing41

Taken together, the Special Ma ster’s study found tim eliness of revocation hearings at

90%. This is a rate similar to the prior Round. This consists of:

mainstream closed mainstream open

Total 3243 544

Timely/ within a reasonable time42 31 5

29

Case 2:06-cv-02042-LKK -GGH Document 584-1 Filed 07/23/10 Page 30 of 51

extradition

0

0

optional waiver activated and

25

22

completed

optional waiver activated and

5

4

open

not in custody

15

15

postponed revocation hearings 13

8

reheard45

revocation hearings after a

5

5

probable cause or optional waiver

review had been postponed

The lengths of delay for late revocation hearings ranged fro m four days to nearly one month.

Parole revocation hearings to be held within a 50- mile radius of the alleged violation (¶ 36):
CalPAP asks its a ttorneys to report any instance of revocation hearings being held more than 50 miles from the incidents underl ying the violation allegation. There were no such hearings during this Round and only one held in the prior R ound over the parolee’s objection. With this sustained performance, the Special Master considers this requirement to be in substantial compliance.46

Evidence on the same terms as the state (¶ 33): In observations and on hearing recordi ngs, parolees generally put on evidence without obstacle. There were single examples that reflec ted mistakes rather than intentionally prejudicing the parolee.47 There were occasion s when the parolee’s defense or mitigation relied in part on questioning his parole agent, and this was frustrated when a substitute agent appeared. In general, however, the system to satisfy this requirem ent
30

Case 2:06-cv-02042-LKK -GGH Document 584-1 Filed 07/23/10 Page 31 of 51
appears to be functioning well.
Supplemental charges (¶ 34): During this Round, it appears there were nine cases w ith supplemental charges.48
The parties agreed that supplem ental charges may not be m ade based on evidence contained in the field file at the time the notice of rights is completed; no party reviewed these cases for consistency with this agreement or for other aspects of their handling.
During reviews, the Special Master enc ountered three cases with supplem ental charges. In two, the charge was matched to th e original packet quick ly and was heard during the origin al probable cause hearing. The third case proceeded separately and, because it occurred in custody but before revoc ation, DJJ asserts it is n ot subject to the one-year limit and is seeking an additional term for the penalty. This is a matter of policy to which Plaintiffs object.
Definition of good cause for delay, remedy for timeframe violation (¶ 33): The parties have agreed to define good cause as “justifiable, legitim ate and
unforeseeable reason for the d elay, asserted in good faith and caused by factors that are beyond the control of the State.” They have also agreed that, fo r any revocation or revocation extension hearing tim eframe violation, and for any probable cause hearing held after 3 5 days, any return to custody will be reduced by the number of days the hearing is late. There were few late re vocation hearings duri ng the Round, and this remedy was provided in the two that came to the Special Master’s attention.
Prejudice is presumed, and the cas e will be dismissed, if, absent good cause, a revocation hearing has not been held by the 90th day after the hold. The parties negotiated
31

Case 2:06-cv-02042-LKK -GGH Document 584-1 Filed 07/23/10 Page 32 of 51
the reduction of the previ ous threshold for presum ed prejudice down to 90 days, but Plaintiffs maintain that the In junction is violated whenever the 35-d ay timeframe is not met without a showing of good cause, and that a case should be dism issed if the hearing has not been held within 60 days aft er the hold.49 To the Special Master’s knowledge, all cases were resolved well before the 90th day.
Not in custody hearings w ithin 60 days after service and with all due process and ADA protections (¶ 45)
During this Round, 21 parol ees’ revocation actions were handled as “not in custody.” Nearly all were ini tiated at the parole unit, w ithout taking the parolee into custody; three were converted at the return to custody asse ssment or at an in-custody probable cause hearing. 50 This is ab out 8% of those vio lation cases that proceeded to some type of hearing.
In the hearings the Special Master observed and listened to, due process and ADA protections were comparable to those in Defendants’ revocation hearings. Nearly half of the population was continued on parole before reaching a hearing. For those hearings conducted, all were completed well within the timeframe.51
Requirements related to disposition Limiting return to custo dy time to one year exc ept for willful program failure or
serious in-custody misconduct (¶ 35): There appears to be very good compliance with this requirement. The revocation
matrix reflects the h ighest penalty to be one year. Hearing officers routinely inform parolees during proceed ings that this is the maximum term. No penalty exceeded one
32

Case 2:06-cv-02042-LKK -GGH Document 584-1 Filed 07/23/10 Page 33 of 51
year in the hearings observed by the Special Master in 2009 and 2010; while not systematically chosen, these to tal well ove r 100 in person, in Board Orders, and on recordings. Likewise, no such problem has been discussed in Defendants’ task forc e meetings, to the Special Master’s knowledge, or in Plaintiffs’ monitoring reports.
Defendants are using the revocation extension system to consider cases of serious in-custody misconduct; it is discussed infra.
There is an issue, however, with the policy as to handling in-custody misconduct during the period the parolee is pending revoc ation. It indicates that, w hen such cases involve violence, they will be charged separate ly from the original violation allegations and a separate penalty can attach, which could extend the revocation term beyond one year. Hearing officers are to use the revocation extension matrix for the in- custody conduct. The parties are in dispute concer ning this policy. While it undoubtedly arises from the need to address serious m isconduct and concerns about a lack of jurisdiction for revocation extension, it is difficult to im agine, with the inform ation currently available, that it is consistent with the Stipulated Injunction.
Development of a matrix of ranges of revocation terms for specific violations (¶ 35):
A matrix routinely guides decisions con cerning violation terms, although Plaintiffs and some system actors assert that it carries more harsh penalties than in the adult system and in the previous juvenile system . The parties strengthened the docum ent by negotiating and distributing definitions for some of the charge codes.
33

Case 2:06-cv-02042-LKK -GGH Document 584-1 Filed 07/23/10 Page 34 of 51
Release within three days if tim e has been served (¶ 38): No information came to the Special Master’s attention during the Round
Requirements related to ADA and effective communication ADA and effective communications accommodation (¶ 23, 48, 50, 51, 53): After extensive negotiation, Defendants distributed in F ebruary 2010 revised policies and procedures for identifying and addressing di sabilities and ef fective communication needs. During the Round, Defendants executed the agreem ent, memorialized in a stipu lation and o rder, to su mmarize and make more accessible key disability and effective communication info rmation. Training concentrated on m ethods for assessing these needs, and hearing offi cers showed significant im provement in this regard. An electronic database is in routine use, however, forms do not always accurately record known disabilities. Centralized tracking of disa bilities and accommodations provided is partially implemented. During hearings, hearing officers routinely seek to identify accomm odations needs and offer to fulfill them, including volunteering magnifiers and assistive hearing devices. The Special Master has not seen the latter in use, and has not learned any inform ation about spoken or sign language in terpreters or delays, if any, when accommodations are needed.
Identification and tracking (¶ 52): Identification: Defendants completed a major effort in November 2009 that is very helpful in identifying d isabilities to be accommodated during the revocation process. Parolees’ files and databases co ntain disability information in a n umber of places and
34

Case 2:06-cv-02042-LKK -GGH Document 584-1 Filed 07/23/10 Page 35 of 51
formats; Defendants conducted an extensiv e review of all of those sources and summarized key indicators of disability and effective communication needs into a single, easily-accessible form that was jointly designed with Plaintiffs.
Defendants completed these summaries for all parolees in the community, and those pending revocation, in com pliance with the timeframes specified in this Court’s order signed July 7, 2009. Parole agents in va rious offices affirmed that completing this form is one of their responsibilities on initial contact for parolees released from custody.
The Defendants have not conducted a revi ew to verify that the sum maries are present as intended. The Special Master com pleted a small study toward this end. In 56 field files or revocation packets, 95% contai ned the summaries and the handful that did not had only recently been released from f acilities. Summaries appeared well-done and were often thoroughly docum ented. About 10% could use correction, however, in that they documented a serious lim itation, such as a learning disability, but indicated that the parolee would not need accommodation or effective communication assistance.
Additionally, LH procedures require staff to review parolees’ files and databases for disability and effective communication inform ation, and to record and transm it it at various steps in the revocation process. In the Special Mas ter’s review of 60 cases , the majority of forms were completed well. The Stockton and Oakland parole units showed the best practice in this regard.
There were also several trends that need attention.52 In a significant minority in the Special Master’s study (15%), agents m issed putting available disability information on the form, particularly, but not exclusively, r eading level; Plaintiffs have also comm ented on this issue after their reviews.53 In nearly 10%, agents used handwritten and electronic
35

Case 2:06-cv-02042-LKK -GGH Document 584-1 Filed 07/23/10 Page 36 of 51
versions of the form in the same case and there continued to be some inconsistencies and some handwritten information was not carried forward. In both of these exam ples, there is a risk of not accomm odating parolees during notice service, and of m issed accommodations later in the process. An additional trend to address is that, fairly often, agents did not indicate whether parolees needed accommodations, particularly a problem in those cases where the agents had recorded disabilities. Similarly, in a few cases, agents marked that disabled parolees did not need accommodation.
Along with the form s discussed above , Defendants are to provide “source documents” concerning the disabilities identified. The extent of that obligation remains in dispute, although the parties have agreed to four documents for Defendants to provide.
Tracking: Defendants make use of disabilities- related electronic databases in two ways: they record dis abilities and effective communication needs during revocation process steps, as described supra, and they generate report s concerning accommodations needed and provided. The latter function pr ovides a win dow into practice but n eeds significantly more development.
The reports reflect dozens of accommodati ons provided at parole units and in institutions during revocation proceedings, including some needs that staff were able to accommodate despite th ere either being no re quest or the need surfacing unexpectedly. Records suggest there were no instances when a requested accommodation was denied. The reports are no t clear, however, as to the actual frequency, the types of needs, the accommodations provided, and wh ether they were sufficient to accomplish effective communication and participation.54
36

Case 2:06-cv-02042-LKK -GGH Document 584-1 Filed 07/23/10 Page 37 of 51
Forms in alterna tive formats (¶ 55): During the R ound, the parties w orked on making forms available in Spanis h, large p rint, and aud io formats. To the Special Master’s knowledge, this rem ains in proce ss. Defendants also ensu red that th ere was equipment available at each of their facilities for parolees needing to listen to materials on recordings.55
Prohibition of discrimination in parole placements and referrals to services (¶ 27): Information concerning this requirem ent did not come to the Special Master’s attention during the Round. The parties disagree concerning documentation that may be necessary to demonstrate compliance with this provision.
Develop an ADA grievance procedure (¶ 54): Defendants h ave put in p lace an ADA grievance procedure. The parties contem plated providing a grievance for m when parolees are served their notice of charges; this has not occurred to date, but the parties agreed to rem edy this and Defendants report they have completed the first steps to accomplish this. The Special Mas ter has observed Defendants’ st aff making parolees aware of the ADA grievance procedure during some hearings.
Defendants report receiving no ADA grievances during the Round or in 2009.56
Development of an appeal process (¶ 43): Decision review, described supra, can serve as one m eans of appeal for CalPAP or the Division of Juvenile Parole Operations.
37

Case 2:06-cv-02042-LKK -GGH Document 584-1 Filed 07/23/10 Page 38 of 51
Defendants have also developed an app eal process with the com ponents required in the Stipulated Inj unction, much of which is operating well. In about two-thirds of the hearings reviewed, hearing officers infor med parolees of their righ t to appeal, including the assistance of counsel; several offered inst ructions on how to exercise it. The system would benefit from more consistency on this point by a small minority.
The system employs one level of appeal th at requires parolees, or their attorneys, to file with the Juvenile Parole Board Execu tive Officer within 20 days of receivin g the Board Order. Taken together, CalPAP’s and Defendants’ documents refer to 16 appeals handled during the Round. 57 The Special Master has found the appeal decisions to be of good quality, but Plaintiffs are concerned that these did not provide sufficient information regarding their basis. In terms of timeliness, the Juvenile Parole Board issued a decision within 10 business days of receipt, as required, with one exception, which was answered two weeks late. CalPAP track ing shows that it received notice of most decisions within the required five business days, also with one exception that was three business days late. It is unknown whether decisions also reached parolees in this time.
The Special Master does not have dire ct information concerning th e relief the Executive Officer can grant and whether it in cludes immediate relief, such as release from custody. Rehearing was granted in three ca ses, but the parolees opted not to pursue them.58
Defendants document five requests for ta pes in the Round. All but one of these requests reportedly were filled in two week s or less, as required; there had been an equipment malfunction as to the ex ceptional hearing and Defendants ordered a rehearing in accord with Stipulated In junction requirements.59 During the Round, Defendants
38

Case 2:06-cv-02042-LKK -GGH Document 584-1 Filed 07/23/10 Page 39 of 51
ensured that there was equipment available at each of their facilities for parolees to listen to these recordings.60
Comprehensive annual training on ADA and effective communication, the Stipulated Injunction's requirements, policies and procedures, due process (¶ 56):
Defendants have done an excellent job pr oviding training for staff. During m ost months, Defendants distribute instructional memoranda clarifying Stipulated Injunction mandates and setting out procedures where pr evious interpretation had been unclear or not well-executed. Defendants set aside a porti on of the routine Juve nile Parole Board meeting, which occurs monthly or every few months, for LH-related training. They have distributed several very bene ficial guidelines and checkli sts for conducting hearings and specific, complicated tasks within them , such as handling h earsay, crime elements, and assessing disabilities and ensuring effective communication.
In the prior Round, the Division of Juvenile Parole Operations provided LH training to its staff. CalPAP provided further traini ng for its panel a ttorneys in October 2009. In December 2009, the Ju venile Parole Board co llaborated with CalPAP on a three-day training for its staff; parole agents and attorneys participated in po rtions the divisions have in comm on, an excellent m echanism for creating greater coordination, understanding, and just and effective re vocation proceedings. In March 2010, the Division of Juvenile Facilities trained its staf f for a f ull day on LH requirements and practices.
Plaintiffs attend trainings and provid e feedback on content and on practice problems evident in trainees’ discussion. Plaintiffs object that they receive materials with
39

Case 2:06-cv-02042-LKK -GGH Document 584-1 Filed 07/23/10 Page 40 of 51
little or no time for comment ahead of trainings, and sometimes receive little notice of the trainings.
Together, the trainings have covered restraints practices, assessing parolees’ disability and effective comm unication needs, handling hearsay, elements of crimes and violations, constitutional validity of parole conditions, severely mentally ill paro lees, documenting Board Or ders and ADA reviews, the revocation penalty m atrix and other dispositions, revocation exte nsions, and e xit interviews.61 As Pl aintiffs note implementation issues in the field, they cal l for m ore training to reduce confusion. In particular, they would like to see hearing offi cers and parole staff become more skilled in disability and effective communication issues and legal analysis.
Tracking mechanism for timeframes and reasons for delay (¶ 13, 32, 33): Defendants employ a complex information system that facilitates many aspects of compliance and tracking perform ance. During the Round, they continued to address operating inconsistencies, improvements needed for DJJ business practices, data requests from the Special Master, and data entry errors.62 As Defendants and the Special Mas ter gain greater experience with the system , however, an increasing num ber of structural concerns ar e surfacing. The infor mation system is b uilt on th e programming initiated more than 10 years ago, based on the Valdivia Defendants’ projection of how the re vocation system would operate and the functions and data that would be needed; experience has borne out quite differently. The LH Defendants have inherited both its strengths and the weaknesses of a very old system written in outdated language. It has been modified many times over the years
40

Case 2:06-cv-02042-LKK -GGH Document 584-1 Filed 07/23/10 Page 41 of 51

in an attempt to meet compliance reporting requirements that were not contem plated in

its original design. The dated technology’s inhe rent lack of flexibility renders changes

unreasonably difficult, and som e of the m odifications were not com plete or could cause

unintended consequences for other aspects of the database.

It is difficult to ask this system to address the varied needs that are sometim es in

tension: workflow, management reports, and compliance reports. As a result, compliance

reports do n ot capture existing data on cer tain activities, and data m oves in and out of

reports according to an arcane set of va

riables, reducing the c ompleteness and

predictability of the compliance picture.

The system serves several purposes well. W hat is unclear is whether the gaps in

what it can do are too large to overcome in the current system technology. Unfortunately,

these gaps are like ly to be centra l to Def endants’ ultimate ability to dem onstrate

substantial compliance.

Monitoring process In previous Rounds, the pa rties reached agreement conc erning a detailed m onthly production of documents and recordings by which Plaintiffs may review some aspects of the remedy’s implementation. Defendants ha ve provided those materials m onthly. Plaintiffs have raised concerns about the completeness of producti ons and the accuracy and utility of some documents. The parties have also agreed to a num ber of onsite visits by Plaintiffs’ counsel independently and in conjunction the Master ship. There are occas ional difficulties in access at local jails, but the parties are working to resolv e them. It is of great concern to

41

Case 2:06-cv-02042-LKK -GGH Document 584-1 Filed 07/23/10 Page 42 of 51
Plaintiffs that they have not been able to observe notices of rights and charges; the parties are working on means to accomplish that, as well.
The Stipulated Injunction requires Defendant s to develop self-monitoring to ensure compliance with its te rms and with relev ant policies and procedur es (¶ 57). Defendants continue to demonstrate very good practices in this regard.
From the outset, Def endants have m aintained a m ultidisciplinary team that m eets weekly to design, oversee and troubleshoot im plementation; to share information; and to jointly create policy and regulation. Mem bers of this body examine the great majority of late cases63 at every rev ocation process step; investig ate the reasons ; implement and check on corrective action; and report to the full task force on the substance and outcom e of these efforts monthly.
Headquarters staff reportedly ch eck open ca se reports daily for timeliness at each step and follow up to rem edy any appeari ng late. Defendants indicate that field supervisors also frequen tly check database reports concern ing timeliness. These are all excellent measures to ensure th at the system becomes established and that sys temic and individualized obstacles are iden tified and addressed early. The widespread and consistent nature of these practices make it more likely that oversight will becom e and remain institutionalized.
In addition, CDCR’s Office of Audits and Compliance will be conducting a number of routine audits based on audit tools designed in conjunction with division subject matter experts and comment from Plaintiffs. The first audits are complete for CalPAP operations and ADA requirem ents. An audit tool for the Juvenile Parole Boar d’s portions of the revocation process has been designed a nd is pending comm ent. Audit m ethods are
42

Case 2:06-cv-02042-LKK -GGH Document 584-1 Filed 07/23/10 Page 43 of 51

designed thoughtfully, employing a number of techniques and drawing on subject m atter

experts in the field visits and to assist

with business process understanding and

interpretation. Expectations for corrective action and follow-up are built in to this review mechanism.64

The parties have also undertaken an im portant effort to design detailed standards

and criteria for the S tipulated Injunction’s requirements. They are collaboratively

negotiating these com ponents, which can be used by all parties exam ining Defendants’

efforts to determine progress and ultim ate success of implementation. This will provide

valuable guidance for D efendants’ planning and execution of the m andates, and help all

parties recognize when goals have been met.

Revocation may be extended only aft er a revocation extension hearing, and parolee must receive copy of decision (¶ 35, 40):
DJJ is operating a revocati on extension system, which handled 18 cases during the Round.65 All but one reached a final outcom e well within the timeframe prescribed; the exceptional case was extended by parolee tim e waiver and was held with in the requested time. These include the two cases w here the violation events occurred within the month before the p arolee was s et for releas e date. In o ne such cas e, hearing was held qu ickly and the process itself did not extend the pa rolee’s time in custody; the second case was the above-described case with the parolee taking a waiver.
The terms generally ranged from one to four m onths. One parolee’s term was extended by eight m onths, and the cases agai nst two others were dism issed. The Special Master does not have infor mation concerning whether parolees are receiving cop ies of

43

Case 2:06-cv-02042-LKK -GGH Document 584-1 Filed 07/23/10 Page 44 of 51
their written hearing records. This system replaced Defendants’ prev ious system of incr easing parolees’ in-
custody time through “tim e-adds” and th e disciplinary system called “DDMS.” 66 Defendants’ staff carefully and frequently m onitored the disciplinary system in 2009 to ensure it was no longer being used to extend parole violators’ time in custody.
Policies and procedures governing dual commitments (¶ 45): The Mastership has reported in previous Rounds that Defendants distributed a policy governing dual comm itments. The part ies worked to address their dispute concerning good tim e credits for dual comm itments who opt to be housed in adult institutions, but this remains to be resolved. Elimination of “temp orary detentions”; immediate rescission of relevant regulation (¶ 39):
The Stipulated Injunctio n requires Def endants to “immediately rescind Title 15, California Code of Regulations § 4985,” whic h concerns this practice. Defendants report that this regulation and Title 15, California Code of Regulations § 4826 were rep ealed in prior Rounds. Plaintiffs raise concerns that temporary dete ntions may be continuing, based on a sm all number of cases in which that language was used. Defendants indicate they have followed up with instruction and that staff incorrectly used language but not the prohibited practice itself, and will continue to follow up.67
Summary Just over a year into full im plementation, Defendants have es tablished impressive
44

Case 2:06-cv-02042-LKK -GGH Document 584-1 Filed 07/23/10 Page 45 of 51
pieces of th e compliance picture. Much of th e necessary infrastructure is in place and significant results are apparent, particularly in the tim eliness of many requirements. There can b e no clearer m easure of this prog ress than th e first attainment of a Specia l Master finding of substantial com pliance in several requirements for a ttorney representation.
As noted at the beginning of this re port, several com ponents are critical to Defendants’ success: setting up sys tems, quick training and guidance in response to problems, a can-do attitude, multidivision communication and problem-solving, scanning of documents, attorney representation, effective attention to ongoing information system problems, and remedies to ensure that justice is provided to all parolees.
Additionally, the effectiveness of D efendants’ training has in creased significantly and will contribu te to the n ecessary foundation for fu lfilling their constitutional obligations. Creating summarized, readily accessible disability information for supervision, attorney representation, and system actors in the revocation process was a n important advance. Accelerating the work of the Office of Audits and Com pliance and shifting primary responsibility for overseeing timeliness requirements to Defendants are important milestones.
Much more work lies ahead and the parties have comm itted to undertaking it together.
While timeliness numbers are stron g, almost no fir m conclusions can be reached when all infor mation is taken into account. Ironically, the data system that provides structure for m anaging the revocation actions , and dem onstrates a good portion of that practice, also poses one of the few substantial obstacles to demonstrating full compliance
45

Case 2:06-cv-02042-LKK -GGH Document 584-1 Filed 07/23/10 Page 46 of 51
and ending this case. It is built on the programming initiated more than 10 years ago in Valdivia, and the
LH Defendants have inherited both its strengths and the weaknesses of a very old syst em written in outdated language. It was not de signed for all o f the necess ary compliance reporting -- which is som etimes in tension with management reporting needs – and the outdated technology renders changes unreasonabl y difficult. Observations and external data suggest a revocation system that is hi ghly functioning in tim eliness; Defendants’ data can only substantiate a porti on of that. Much of the analysis in this Special Master’s report required painstaking, case by case an alysis, a highly im practical method for Defendants to sustain. I t is question able whether Defendants will be able to solve this problem with the current system.
Beyond the data system, Defendants’ next steps involve solidifying the system that has just com e together, and bringing atten tion to sever al substantive areas. Am ong the highest priorities are:
• a better understanding of accommodating the more severely challenged within th e disabled population
• developing and presenting sufficient evidence; and • a better grasp of applying the law when weighing evidence and arguments
Additional policies, procedures and regulati ons are needed to increase consistency and enhance the survivability of the sys tem. As with any system, better implem entation of many of the specific Stipulated Injunction requirements remains for the com ing Rounds, a natural second wave after broader components are first established.
46

Case 2:06-cv-02042-LKK -GGH Document 584-1 Filed 07/23/10 Page 47 of 51

Recommendations
The Defendants have d emonstrated compliance with several requirem ents of the
Stipulated Injunction. I ther efore recommend that the C ourt order that the following
requirements are substantially compliant, and that the subjects will therefore no longer be
a primary focus of Plaintiffs’ or the Special Master’s monitoring unless and until it comes
to the parties’ or the Special Master’s attention that there has been a significant decline in
compliance. These orders should apply to the following requirements:
• Provision of counsel during revocation proceedings (¶ 15)68 • Parole revocation hearings to be held within a 50-m ile radius of the alleged
violation (¶ 36) • At the time of attorney appointm ent, provision of date, tim e, and location of the
hearing (¶ 16) • Defendants shall take all reasonable steps to allow counsel to m eet with client at
least 24 hours prior to the probable cause hearing (¶ 16) • State-appointed counsel for juvenile pa rolees shall be appropriately compensated
for hearings and appeals (¶ 24) Defenda nts shall develop standards, guidelines, and training for effective assistance of state-appointed counsel (¶ 21)

Respectfully submitted,

Chase Riveland /s/Chase Riveland

May

Special Master

25, 2010

1 This was determined in the following way: Closed Case Summary Oct. 1, 2009 through Mar. 28, 2010 (generated Apr. 10, 2010) reportedly contains all special populations (except supplemental cases and revocation extensions, each of which tends to be minimal and handled under a different analysis) and shows 433 cases. Open Case Summary run closest to the end of the Round, Mar. 26, 2010, shows 74 cases. The number of actions staff handled during the Round, then, is approximately 507. 2 Cases for this and the following data point are captured in Optional Waiver Timeliness Oct. 1, 2009 through Mar. 28, 2010, in combination with the individual records underlying it. 3 Closed Case Summary, Optional Waiver Timeliness, Closed Case – Revocation Extension each run for Oct.1, 2009 through Mar. 28, 2010, and individual records reflecting postponements. As there is no report capturing completed postponements, this total may well be higher.
47

Case 2:06-cv-02042-LKK -GGH Document 584-1 Filed 07/23/10 Page 48 of 51
4 This is distinguished from the separate requirement for counsel of choice, which remains subject to full Court oversight 5 Plaintiffs have agreed as to most requirements listed here. The Special Master recommends a few additions as noted here. 6 Defendants are currently treating this as the deadline by which to decide whether to refer the revocation case to the Juvenile Parole Board. 7 Informal communications among parties; see, e.g., electronic file titled BCPA Memo- DUE PROCESS Poster.rtf 8 Informal communications among parties Oct. through Dec. 2009, Mar.2010 9 Timelines for not in custody cases have been established in policy but not as between the parties. In the meantime, Defendants ask their staff to meet the timeframes in policy, but the database report seems to measure by mainstream case standards for most steps.
For postponed cases, reports measure timeliness by the first probable cause hearing, without regard to when the matter was u ltimately heard. The timeframes for a rehearing have yet to be negotiated, but the completed hearing will need to be accounted for. At present, there is no systematic way to identify cases that were postponed and have subsequently closed. 10 Open case reports indicate the timeliness of the step at which each case therein is found. The timeliness of each preceding step in those cases is not visible in any report (until those cases close), so presently timely cases awaiting probable cause hearing might have had late notices of rights, for example, and one would not know from the report.
Open case reports also contain cases open but not shown in any step; they are apparent only by the fact that the step columns total less than the full total column. Defendants believe these principally are cases open at another type of step (Charge or Optional Waiver Review) or closed but not archived. Since they cannot be viewed, however, one cannot verify whether these reasons cover all of the unexplained open cases.
The notice of rights step poses additional problems. On open case reports, it does not track independently; it is always linked either to the step before or after it, so it is not possible to determine on the report which cases are open at this step. Therefore, one cannot discern the timeliness of notice for any of the open cases without examining each one.
Of the 408 cases shown in Closed Case – LH Timeliness Oct. 1 through Mar. 28,2010 as proceeding forward from the agent-supervisor conference, only 278 show as having a notice of rights. Defendants assert that many cases are moved out of revocation proceedings at this time, either through dismissal or by handling the allegations with a corrective action plan. Logically, this would explain a large proportion of this difference. However, there is no report to capture that population to be able to demonstrate that this action fully explains this difference. In fact, Information Systems staff analysis reveals that more notices took place than the 278. Some of these are notices that are subject to a different timeframe expectation (not in custody policies, rather than requirements laid out in the Stipulated Injunction) and are reflected in the data system but not in this report; unfortunately, there are other seemingly completed notices not explained by any of the foregoing. This does not leave one with confidence that the likely explanations are definite enough to explain all of what appear to be discrepancies and to assure that all necessary notices took place and were completed timely. 11 The number of cases varies when reports are generated on different dates. This may occur when cases are archived or duplicates are discovered and eliminated. It may occur when an optional waiver is taken or activated, There may be administrative or other reasons To date, the Special Master has observed the amount of variance to be small. However, the fact of variance means statistics can never be fully precise, and the fact that some changes occur but can only be explained with likely reasons, rather than definite ones, is of concern. 12 The Special Master reviewed an accidental sample of 77 individuals’ records drawn from the monthly productions, site visits, and packets pulled for studies of other issues. There were a minimum of five from each parole unit. This is a large sample size, at about 24%, but the selection method was not systematic, so this may or may not be representative. 13 The amount of lateness was determined by a case-by-case review of the two special populations and examining the drilldown report of late cases in Closed Case – LH Timeliness and the individual records for those appearing more than one day late. For all sources, see electronic folders titled NOR analysis and JSTS reports – gen’l within Materials Relied Upon for OSM4.
48

Case 2:06-cv-02042-LKK -GGH Document 584-1 Filed 07/23/10 Page 49 of 51
14 NOR Unsuccessful – Will Retry totals 7 cases after removing duplicates . NOR Unsuccessful – Will Not Retry was also reviewed; it showed there were no such cases during the Round. Both reports were run for Oct. 1, 2009 through Mar. 28, 2010. . 15 The investigation occurs before CalPAP attorneys are appointed. Parolees may or may not have counsel in concurrent criminal proceedings. 16 The Special Master reviewed an accidental sample of 55 individuals’ records drawn from the monthly productions, site visits, and packets pulled for studies of other issues. This is a 17% sample, but the selection method was not systematic, so this may or may not be representative. 17 See contents of the electronic folder Rev Packet Study in Materials Relied Upon for OSM4. The Special Master reviewed the actual reports in the packets, not data printouts. The total number examined was 34 and was chosen by accidental sampling. While this does not provide a sample that can be relied upon as representative, it does give an indication of practice. 18 Id., as well as case contained in electronic folder titled Supervisor Review in Materials Relied Upon for OSM4 19 Most populations are captured in the Closed Case – LH Timeliness report; the exceptions are included in Closed Case – Extradition, Closed Case – NIC Referral, and Open Case Summary. About 5% of the cases shown in Closed Case – LH Timeliness were late, almost all one day or less. The amount of lateness was determined by a case-by-case review of the two special populations and examining the drilldown report of late cases in Closed Case – LH Timeliness. For all sources, see electronic folders titled Supervisor Review, Extradition, NIC, and JSTS reports – gen’l within Materials Relied Upon for OSM4. 20 DJJ Date Case Assigned Compliance Report for each of Oct. 2009 through Feb. 2010; informal communication May 25, 2010; Closed Case Summary – Extradition Oct. 1, 2009 through Mar. 28,2010; Extradition Report Apr. 11, 2010; attorney appointment dates obtained through informal communication with CalPAP. Attorney appointment figures are not practically discernible for open cases. 21 Contents of electronic filed NIC within Materials Relied Upon for OSM4; attorney appointment dates obtained through informal communication with CalPAP. The not in custody cases not discussed here were continued on parole before the time that an attorney would have been appointed, generally at the RTCA step. 22 In one instance, a police officer surprised the parties with a report not previously provided. 23 LH Compliance Report, Mar. 16, 2010 24 Source for this section is 79 revocation packets reviewed during site visits or downloaded from JSTS or RAD and filed in several electronic folders within Materials Relied Upon for OSM4. This accidental sample is about a 23% sample of the actions that proceeded to a step requiring counsel notification, but was not systematically chosen, so it may or may not be fully representative. 25 Document Production Itemization for each of Oct. 2009 through Mar. 2010 26 Compliance Review, California Parole Advocacy Program. Reportedly, the auditor’s method is to describe all deficient cases identified; as there were no such descriptions in this report, Defendants say this indicates the auditor found 100% compliance. 27 Contents of electronic file RTCA within Materials Relied Upon for OSM4 28 Contents of electronic file RTCA within Materials Relied Upon for OSM4; Closed Case – LH Timeliness and Closed Case Summary – Extradition Oct. 1, 2009 through Mar. 28, 2010; Open Case Summary for each of Nov. 20 and Dec. 13,2009 and Jan. 15, Feb. 11, Mar. 16, Mar. 26 and Apr. 7, 2010. One late case was removed from both the total and the late column, as it was a case from the preceding Round that was administratively reopened. 29 Closed Case Detail – RTCA Oct. 1, 2009 through Mar. 28, 2010 30 In the Open Case Summary, 42 cases are unknown because some do not appear in the step columns and others progressed to the probable cause or revocation hearing steps and the timeliness of the RTCA is not currently visible. 31 CalPAP Requested Expedited Hearings, Oct. 1, 2009 through Apr. 1, 2010 32 Some parolees took optional waivers at the probable cause hearing. For those who did not, most were given alternatives to incarceration. 33 See, , e.g., correspondence from S. Cooppan to M. Brady and C. Chen, Apr.20,2010, and correspondence from E. Eng to M. Brady and C. Chen, Apr.2,2010 34 This analysis draws on Closed Case – LH Timeliness and Closed Case Extradition for Oct. 1, 2009 through Mar. 28, 2010. With Open Case – LH Timeliness, each of Nov. 20 and Dec. 13,2009 and Jan. 15,
49

Case 2:06-cv-02042-LKK -GGH Document 584-1 Filed 07/23/10 Page 50 of 51
Feb. 11, Mar. 16, Mar. 26 and Apr. 7, 2010 were averaged to produce a number of open probable cause hearings at any given time, and their timeliness.
Postponed cases require a separate assessment. Currently, these are included in these two closed case reports, with timeliness determined by the timeliness of the first probable cause hearing, without regard to when the matter was ultimately heard. For this reason, in this analysis, postponed cases are removed from the totals shown on the mainstream reports.
The above-described analysis of Open Case – LH Timeliness also produced the average number of open revocation hearings, which indicates a number of probable cause hearings that have occurred but for whom one cannot view timeliness. Open postponements and time waivers must be added in; Open CasePostponement and Open Case-Time Waiver for Nov. 20 and Dec. 13,2009 and Jan. 15, Feb. 11, Mar. 16, and Apr. 7, 2010 provides this number (after subtracting duplicates and averaging), but do not indicate timeliness. Additionally, Open Case Summary for the same dates provides the number of cases open but not appearing in any step column (the difference between the total column and the totals of the step columns, less the NOR column as it duplicates those adjacent to it). It is not possible to isolate open extradition cases, but they are infrequent, so a small number of these may also be unknown. Taken together, these reflect about 9% of the total probable cause hearings and there is no known timeliness information for them at this time. 35 For this review, the Special Master studied the cases captured on the Open Case-Postponement and Open Case-Time Waiver reports, and noted the probable cause hearings with postponements while auditing records for other purposes. This yielded a population of 12 parolees with postponements and 6 with time waivers at probable cause (as well as postponements at other steps). It is unknown what proportion of all postponements this represents. 36 See contents of electronic file titled Postponements within Materials Relied Upon for OSM4 37 A small minority have been briefly verifying the ADA review from the probable cause hearing, forgoing an interactive assessment during the revocation hearing. Defendants responded with training upon learning of this practice. 38 Granted Comito Objections, Denied Comito Objections, and Other Objections reports, each covering Sept. 2009 through Feb.2010 (data analysis makes use only of the data from this Round, Oct. 2009 through Feb. 2010) 39 This term is used to describe those revocation actions that follow the normal course. The concept excludes cases with special circumstances, such as not in custody hearings, extradition, parolee time waivers, optional waivers, and postponements. 40 This is a standard Defendants are applying. Plaintiffs contend that counting the days to hearing should resume at the point when the optional waiver was exercised (for a total of 35 days in the revocation process, not including the period of the optional waiver). 41 These do not appear in the information system reports otherwise referenced here and must be accounted for separately. 42 Timeliness for mainstream closed cases and not in custody cases is set by the Stipulated Injunction.
When referring to open cases, this column reflects cases still within the time allowed by the Stipulated Injunction and/or policy. For completed optional waiver activations and extradition cases, timeliness is measured by the time allowed by policy.
When referring to postponed cases, this column reflects cases reheard within a reasonable time for the circumstances. As discussed, the parties will need to negotiate this standard. In the meantime, for purposes of this report’s analysis, the Special Master defines a reasonable time to reschedule these revocation hearings as less than three weeks after the first revocation hearing. This is significantly longer than the two weeks required for reissuing subpoenas to law enforcement witnesses. 43 Although Closed Case – LH Timeliness shows higher numbers, these include postponed revocation hearings with the timeliness calculated as of the first hearing. While the timeliness of the first hearing is significant, it is not the final word. Thus, this analysis subtracts those cases from the mainstream numbers and treats them separately. 44 Obtained through the averaging techniques described supra 45 The Special Master’s analysis was only able to take into account those postponements that came to the team’s attention. As there is not currently a method to systematically identify these, it may be that this and the data point that follow are under-representative, and mainstream closed probable cause and revocation hearings are overcounted by Defendants’ information system.
50

Case 2:06-cv-02042-LKK -GGH Document 584-1 Filed 07/23/10 Page 51 of 51
46 CalPAP DJJ Statistics 50 Mile Report for each of Apr. through Dec. 2009,and Jan. through Feb. 2010 47 In one, a hearing officer discouraged disposition witnesses as unnecessary. In another, the resolution indicated that the difficulty was with parolee’s counsel’s subpoenas rather than any action of the State. In a third, a parolee was not allowed to introduce physical evidence because of a mistake concerning discovery requirements. See Other Objections Sept.2009 through Feb.2010 (analysis draws on material from this Round, Oct. 2009 through Feb. 2010); correspondence from E. Eng to M. Brady and C. Chen, Apr.2,2010; hearing recordings in monthly productions 48 Closed Case Summary – Supplemental Charge Cases, Oct. 1, 2009 through Mar. 28, 2010; Open Case Summary -- Supplemental Charge Cases Apr. 7, 2010 49 Joint Stipulation Regarding Modifications to Division of Juvenile Justice Parole Revocation Policies and Procedures, Sept. 10, 2009 50 Contents of electronic file NIC within Materials Relied Upon for OSM4 51 Id. The one exception was a parolee who could not participate in her first not in custody hearing for medical reasons, and was taken into custody on other charges before the postponed hearing was scheduled. 52 The Special Master reviewed an accidental sample of 60 individuals’ packets drawn from site visits and packets pulled for studies of other issues. This is likely about a 20% sample, but the selection method was not systematic, so this may or may not be representative. 53 See, , e.g., correspondence from S. Cooppan to M. Brady and C. Chen, Apr.20, 2010 54 Contents of electronic file titled ADA within Materials Relied Upon for OSM4. It is not clear whether all reports capture discrete populations or are overlapping. The meaning of the report titled No Action is unclear; it seems to have affected as many as 26 people. 55 Informal communications with Defendants Mar. 2010 56 Document Production Itemization for each of Oct. 2009 through Mar. 2010 57 See contents of electronic file titled Appeal within Materials Relied Upon for OSM4 58 Informal communications with CalPAP Apr. 2010 59 Document Production Itemizations, Oct. 2009 through Mar.2010 60 Informal communications with Defendants Mar. 2010 61 See, e.g., contents of electronic folder titled Training within Materials Relied Upon for OSM4 62 See, e.g., electronic file titled Mar 10 Status report for JSTS Changes.doc 63 Defendants examine every late case shown on reports concerning revocation extension, tracking of appeals decisions, and the report titled Closed Case Summary – LH Timeliness. As described, the latter report omits certain populations, so it is likely that some late cases have not been reviewed. However, it is Defendants’ intention to subject every late case to scrutiny. 64 LH Compliance Report, Mar. 16, 2010 65 CalPAP DJJ Rev. Extension Cases Closed, run for each of Oct. 2009 through Feb. 2010. According to Defendants’ Mar. 16, 2010 compliance report, internal data did not operate consistently during this Round, so the Special Master will not rely on it for the instant report. 66 The latter is still used for wards in custody and to for corrections for parolees’ behavior other than extending their time in custody. 67 See, e.g., correspondence from S. Cooppan to M. Brady and C. Chen, Apr.20, 2010 68 This is distinguished from the separate requirement for counsel of choice, which remains subject to full Court oversight
51

 
 Case 2:06-cv-02042-LKK -GGH Document 601 Filed 01/04/11 Page 1 of 58

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

FILED
Jan 04, 2011
CLERK, U.S. DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

L.H, et al., Plaintiffs,
vs. ARNOLD SCHWARZENEGGER, et al.,
Defendants. _____________________________________/

NO.CIV.S-06-2042 LKK/GGH

FIFTH REPORT OF THE SPECIAL MASTER ON THE STATUS OF
CONDITIONS OF THE STIPULATED ORDER
Background In orders dated Septem ber 19, 2007 and January 29, 2008, this Court found that California's juvenile parole revocation system violated juvenile parolees’ due process rights, the Americans with Disabilities Act (ADA), and the Rehabilitation Act. The Court approved a S tipulation and Order for Permanent Injunctive Relief on October 7, 2008 (hereafter “Stipulated In junction”), which sets forth detailed requirements for attorney representation, revocation system procedures, effective communication and reasonable accomm odations, and consideration of alternatives to incarceration. During implementation, stipulated orders have been entered concerning Plaintiffs’
1

Case 2:06-cv-02042-LKK -GGH Document 601 Filed 01/04/11 Page 2 of 58
monitoring, the tracking of parolees with disabilities and effective communication needs, policies and procedures, and the revocation extension penalty matrix.
Chase Riveland was appointed as Sp ecial Master on May 22, 2008. Virginia Morrison assumed the role of Special Master , and Patricia Gray was appointed Deputy Special Master, effective June 1, 2010. The Mastership has s ubmitted four reports during that time, and offers this fifth report assessing progress toward providing due process and complying with this Court’s orders.
Special Master Activities The Special Master’s team observed the De fendants’ task force and Board training, and met with the divisions concerning upcom ing training. The team assisted in the parties’ negotiations concerning standards and criteria for com pliance, policies and procedures, alternatives to incarceration, decision review, and mentally ill paro lees, as well as in the identification and creation of a plan for addressing disputed items. The Mastership interviewed headquarter s staff, and staff onsite, including ten parole agents, along with five parolees. Th e team observed hearings at Preston Youth Correctional Facility; Lerdo Detention Facility; NA Chaderjian Youth Correctio nal Facility; Southern Youth Correctio nal Reception Center and Clinic; and in the jails of Los Angeles, Contra Costa, Tulare, Fr esno, Bob W iley, and Napa counties. Those proceedings were conducted by five hearing officers and consisted of 21 probable cause hearings, four revocation hearings, and one revocation extension hearing. In addition, the team examined seven Decision Review matters. The team observed the service of notice on five parolees in county jails in five distinctly different locations.
2

Case 2:06-cv-02042-LKK -GGH Document 601 Filed 01/04/11 Page 3 of 58
In addition to the proceedings seen in person, the Mastership analyzed recorded and written materials for another 13 revocation hearings and two not in custody hearings , conducted by five hearing officers.
Scope and Approach This report discusses observ ations and activities spanni ng April through October 2010, collectively referred to as “the Round.” References to the Special Master’s activities frequently include the actions of a member of her team. A number of mandates consist both of pr ocedural due process requirem ents and substantive ones; all these aspects are included in the Special Master’s assessm ent. The term “mainstream cases” refers to revocati on actions that follow the n ormal course; it excludes cases with special circum stances, such as not in custody hearings, extradition, parolee time waivers, optional waivers, and postponements. For many of the requirem ents, the Special Master’s team conducted a study based on revocation packets, hearing docum ents, and recordings provided in Defendants’ monthly document productions, in combination with those sam e documents produced for the hearings observed during the team ’s site visits. For other requirem ents, the team studied records selected from the relevant population as identified by electronic reports. Since some of these samples were not rando mly chosen, there are lim itations on their representativeness. In othe r instances, the team relied on reports generated by Defendants’ revocation database , Plaintiffs’ m onitoring reports and analyses, reports or studies conducted by the Ca lPAP attorney panel ad ministration, and som etimes documents underlying these sources.
3

Case 2:06-cv-02042-LKK -GGH Document 601 Filed 01/04/11 Page 4 of 58
Substantial Compliance Defendants continue to show strong commitment in working toward fulfilling their obligations in this action. An infrastructure is well-es tablished. To the credit of conscientious staff, and to th e credit of the infrastructure design, systems have remained running consistently through furloughs; difficu lt economic news and staff losses; and major changes in leade rship. No backsliding has been apparent on any accom plishment, which is both impressive and unusual in institutional reform litigation. To the extent that a Stipulated Injunction requirement has been conducted well for a sustained period, the Mastership will con sider that requirement to be in substantial compliance. In some institutional litigation, “s ubstantial compliance” has been used as an umbrella term for ultimate suc cess. The LH Defendants argue that it should be the standard for relief from judgment in this case ; Plaintiffs strongly contest that substantial compliance should serve as that standard. As used in this report, substantial compliance indicates a sustained period of meeting a high standard. Substantially compliant items will remain within the Stipulated Injunction, but the Special Master and Plaintiffs wi ll discontinue review of such item s unless and until a sign ificant decline in performance surfaces. Defendants are expected, and have made plans, to cont inue to rev iew these items at regu lar intervals to prevent such a decline. The Special Master co nsiders the follo wing requirements to be in substantial compliance, as described supra. The bases for reaching th ese conclusions are detailed in
4

Case 2:06-cv-02042-LKK -GGH Document 601 Filed 01/04/11 Page 5 of 58
the Stipulated Injunction Requirements section, infra.
Current Round:
• Timely appointment of counsel (¶ 16)
• At the tim e of attorney appointm ent, provision of a copy of all the evidence on which the State intend s to rely or which may be excu lpatory; evidence not provided with at least two days’ notice shall be excluded unless the state shows good cause (¶ 16, 19)
• Attorney will be informed of Return to Custody Assessment by the 10th business day after the hold (¶ 30)
• Adequate time for representation ; reasonable access to clien ts and files; confidential phone calls and space in which to m eet; observing staff cannot participate in proceedings (¶ 20, 23)
• Not accepting waivers of hearing rights or the right to counsel made prior to the juvenile parolee meeting with counsel; waivers of hearings and requests for continuance must be made in writing in the presence of counsel (¶ 17, 31)
• Not in custody hearings within 60 days afte r service and with all due process and ADA protections (¶ 45)
• Revocation may be extended only after a revocation extension hearing (no timeadds or DDMS time extensions) (¶ 35)
Previous Round:
In the Fourth Round, the Mastership found these requirements to be in substantial
compliance: • Provision of counsel during revocation proceedings (¶ 15)1
• At the time of attorney appointm ent, provision of date, tim e, and location of the hearing (¶ 16)
• Defendants shall take all reasonable steps to allow counsel to m eet with client at least 24 hours prior to the probable cause hearing (¶ 16)
• State-appointed counsel for juvenile pa rolees shall be appropriately compensated for hearings and appeals (¶ 24)
5

Case 2:06-cv-02042-LKK -GGH Document 601 Filed 01/04/11 Page 6 of 58
• Defendants shall develop standards, guidelines, and tr aining for effect ive assistance of state-appointed counsel (¶ 21)
• Parole revocation hearings to be held within a 50-m ile radius of the alleged violation (¶ 36)
For the m ost part, Defendants and CalPAP maintained these requirements at or above prior levels. There was somewhat of a decline concerning revocation hearings being held within a 50-mile radius of the alleged violation. During the Round, there were three cases held beyond that distance and over parolees’ objections; with the sm all number of revocation hearings, th is constitutes 5% of the tota l.2 It appears that one contributor is county jails that do not perm it Defendants to hold hearings, a problem atic issue. When Defendants m ust identify anothe r location, it som etimes is further than 50 miles from where the alleged violation occurred. While the Mastership will consider the 50-mile requirement as rem aining in subs tantial compliance, Defendants should be mindful of the increase in hearings o utside the geographic limit and take further steps to prevent these in the future.
Issues for Priority Attention to Provide a Fair, Just Revocation Process
With the infrastructure in place and well-managed, it is time for Defendants to turn their attention to strengthening the substan ce of what they do, concentrating on whether what they accomplish is substantiv ely and procedurally fair, m eeting all due process standards.
The Special Master encourages Defe ndants to emphasize improving the following practices in the coming Round:
6

Case 2:06-cv-02042-LKK -GGH Document 601 Filed 01/04/11 Page 7 of 58
• Providing factual summaries in the m inority of Charge Reports wher e the alleged conduct is not described
• Factual bases for each probable cause finding • Consideration of alternatives to in carceration as an outco me of probable cause
hearings • Determination of probable cause to continue to detain • More clarity and consistency in fo llowing the law when determining whether
hearsay can be used as evidence • Rigor on procedures that can im pact fairness and impressions of neutrality, such
as considering evidence not in the record; m aking findings on, or considering, charges that have been dismissed; and presiding over hearings where there may be a perception of a conflict of interest • ADA and effective communication reviews at hearings • Lengthiest delays when hearings are postponed or reopened by decision review
The Environment – Assembly Bill 1628 Late in the Round, the legis lature passed Assembly Bill 1628, a bill that reduces and ultimately eliminates parole supervision of juvenile pa rolees by th e state.3 On its effective date in January 2011, j uveniles currently supervised on parole by the state will remain so, and will be subject to re vocation by the Juven ile Parole Board.4 Those released from Division of Juvenile Justice facilities for the f irst time after the b ill’s effective date will be discharged to the count ies for supervision. The bill provides that all such juveniles, if supervised, will be under county jurisdiction by July 2014, and the parties anticipate that, by attrition, this will likely occur sooner. Certainly, this will reduce the population currently subject to LH both in the shortand medium term. During the Round, five parole offices closed, though certainly not only because of this bill, while sev en remain open. A decision was made to close a ju venile
7

Case 2:06-cv-02042-LKK -GGH Document 601 Filed 01/04/11 Page 8 of 58
facility in June 2011. A ny other implications for LH are unclear. Defendants have convened an inter-d ivisional workgroup to plan for changes and it has had initial talks with county counterparts. Plaintiffs have re quested information and meetings to learn about the transition and to ensu re that the rights of the LH class are adeq uately provided for. The Mastership encourages the parties to pursue these measures to create a fair and orderly transition.
Policies and Regulations (Stipulated Injunction) The Stipulated Injunction requires suffici ently specific draft policies, procedures, and plans to: • ensure that revocation p roceedings are in con tinuous compliance with all of the requirements of the Constitution and applicable statutes, • address a method for accurately tracking the tim eliness of hearings and other steps in the parole revocation process, • include the timely provision of acco mmodations for juvenile parolees’ disabilities and effective communication needs, • provide for not in custo dy hearings, dual commitments, and parole exit meetings; and, • address such disputed issues as telephonic probable cause hearings, circumstances constituting good cause for delayed hearings, and rem edies for untimely hearings.
The parties agreed on policies covering the broad outlines of a system and many of its details. Defendants have distribut ed extensive policies and procedures concerning revocation extension, attorney standards, revocation proceedings for the Board, the revocation process for the Divisi on of Juvenile Parole Operations, ADA and effective communication, and ex it interviews. These policie s were recently updated in
8

Case 2:06-cv-02042-LKK -GGH Document 601 Filed 01/04/11 Page 9 of 58
the annual revision process with input from Defendants’ divisions, Plaintiffs, and the Special Master. These serve as one of key feat ures of an infrastructure necessary for a sustainable, well-functioning system.
Of the above-listed requirem ents, these disseminated policies address trackin g methods, accommodations, not in custody hearings, dual commit ments, and parole exit meetings. Various aspects of com pliance with the Constitution and statu tes are included, and the parties disagree about whether more is needed in this regard.
Disputed issues, such as those specified above, rem ain for resolution. Others have arisen as a natural consequence of inte rpretation during im plementation. Plaintiffs undertook an extensive review to identify all such issues known to th em, and the parties began a regular practice of negotiation and dispute resolution. They catalogued the issues and they assigned relative im portance and preferred processes for addressing each. They have worked in earnest on those identified as immediate priorities. As a result, in a short time, one of the iden tified issues w as resolved, the par ties are nea ring completion of a basic set of criteria for assessing Stipulated Injunction requirements, they have further negotiated several policies, and they have in creased information exchange to help shape negotiations on upcoming topics. Policy nego tiations during the Round concentrated on decision review and m entally ill parolees, as well as party input into the annual revision of the comprehensive policies and procedures.
Notice of terms: As described in prior reports of the Special Master, Defendants have provided posters and notices long-term.
Regulations: The parties continue to work through the lengthy, com plex revision and approval process on m any regulations affected by th e LH remedy. The Offi ce of
9

Case 2:06-cv-02042-LKK -GGH Document 601 Filed 01/04/11 Page 10 of 58 Administrative Law published notice of the regulations during the Round.5 The comment period closed shortly before the issuance of th is Special M aster’s report, and P laintiffs were among those contributing comments.6
Additional steps anticipated include a possible public hearing, a review by the Office of Administrative Law, another round of review by each level of DJJ and CDCR administration, and finally an Administrative Procedure Act review. Defendants project that this could be completed in 10 months or less.7 Plaintiffs object to the protracted process required to adopt or revise regulations.
Stipulated Injunction Requirements
The Stipulated Injunction requires a vari ety of practice changes and a system of revocation steps in which due process must be delivered according to specified timelines. The status of implementing these requirements will be discussed in this section.
Previous reports of the Special Master have detailed the difficulty Defendants have in demonstrating the timeliness aspects of the Stipulated Injunction requirements because of information system issues. Defendants went to extrao rdinary lengths to dem onstrate their timeliness numbers during this Round, improving certain information system reports and adding studies to capture previous ly unknown populations. As a result, the Mastership feels confident in reporting compliance rates f or most requirements, as detailed below.
10

Case 2:06-cv-02042-LKK -GGH Document 601 Filed 01/04/11 Page 11 of 58
Parole Agent and Supervis ing Parole Agent conference w ithin two business days (¶ 27):
Nature of the practice Plaintiffs express concern that they do not know the extent of the information and conversation on which this decision is based, and whether the standards are being applied correctly. The parties recently agreed to components necessary to this co nference.8 They will next develop audit tools and begin assessing performance in 2011. Timeliness Closed cases indicate th at the vas t majority are tim ely at this step and there was continued improvement.9 Open cases were timely at the same rate.10 Among the very few known late cases, all were completed the following day.11 The consistency of these num bers, taken together with Defendants’ careful oversight, gives the Mastership confidence that timeliness on this task is an extraordinary 99%.
Notice of charges and rights within three business days (¶ 28): Nature of the practice To satisfy due process standards, the notice must contain a summary of the conduct underlying the charges sufficient for the parolee to prepare a defense. In the large sam ple of notices the Special Master reviewed, about 80% of summa ries were sufficient, and most of those were very well done. 12 The San Jose parole unit was particularly skilled in this area; the Bakersfield and Watts parole units have the most work to do to im prove. With 20% of cases having insufficient summ aries, it should be a prio rity for Defendants
11

Case 2:06-cv-02042-LKK -GGH Document 601 Filed 01/04/11 Page 12 of 58
to work with those units and staff t o improve their performance in this area. The charge report serves a core due process function, and is critical for communicating fairly with parolees and for compliance with LH requirements.
The Special Master and Plaintiffs observed service during this Round conducted by 10 parole agents in as m any locations, almost all of them county jails. 13 All locatio ns described had sight and sound privacy. Plai ntiffs express ongoing concern that the physical limitations of certain county ja ils may prevent the provision of ADA accommodations and effective communication during service of notice. Agents went over the forms in detail, de scribing rights and of ten providing context an d definitions, and orienting the parolees to what to ex pect in the revocation process and its interaction with the legal system. At least half of the agents expressly warned the parolees not to speak about the charges because of legal ram ifications; in another case, when the parolee volunteered his story, the agent neith er encouraged nor discouraged it. 14 Plaintiffs’ counsel have registered ongoing objections to the practice of allowing a parolee to make any evidentiary statements during this interaction.
ADA/effective communication assessments were limited at times, perhaps because the agents felt familiar with th eir caseload and confident about kno wing the n eeds. Nevertheless, each went over the d isability form and its cho ices in detail, generally with explanations and helping the parolees to make genuine choices. One trend observed by the Special Master was a tend ency to discourage parolees from choosing the form ’s option seeking an acco mmodation.15 At the sam e time, several ag ents clearly p rovided accommodations for learning disabled and mentally ill parolees they were serving, so the reasons for steering parolees away from choosing help w ere unclear. All agents the
12

Case 2:06-cv-02042-LKK -GGH Document 601 Filed 01/04/11 Page 13 of 58
Special Master observed o ffered and explained the ADA grievance f orm. Agents had complete ADA kits including large print and Sp anish forms. In one or more instances, Plaintiffs were concerned that agents leaving a kit in the car might be a disincentive to using it if a need was discovered once inside the facility.
It appears that agents m ight improve some practices related to ADA and effective communication at this step, but overall, agen ts were inf ormative and d ue process was well advanced.
Timeliness At this step, 97% were com pleted timely, with only 12 late cases in six m onths.16 Open cases met or exceeded this rate. Nearly all were com pleted the following day, and the longest time to service was an addition al two days, in cases with a timely attempt but delayed completion due to a lockdown or a transfer. These are exceptional num bers and Defendants should be justifiably proud.
Not accepting w ritten admissions to a vi olation of parole made prior to the juvenile parolee meeting with counsel (¶ 17):
Defendants assert that they have ceased th e routine practice of asking parolees to sign written adm ission forms. The Special Ma ster has not encountered these forms in more than 200 revocation packets revi ewed in 2009 and 2010, and none has been identified by monitors.
Plaintiffs object to parole agents taking oral statements before revocation counsel is appointed or retained, for exa mple, at th e service of notice of rights and charges or during the investigation. 17 Plaintiffs’ monitoring discusse s two cases in which charges
13

Case 2:06-cv-02042-LKK -GGH Document 601 Filed 01/04/11 Page 14 of 58
were added based on infor mation learned during service. 18 The parties disagree as to whether these practices are permissible under the Stipulated Injunction.
Not accepting waivers of hearing rights or the right to counsel made prior to the juvenile parolee meeting with counsel; waivers of hearings and requests for continuance must be made in writing in the presence of counsel (¶ 17, 31):
Neither the Special Master nor m onitors have encountered waivers m ade without counsel throughout 2009 and 2010. CalPAP a ttorneys confirm they have seen no instances of parolees waiving rights prior to conferring with counsel. They could only recall one waiver of counsel, and in that c ase the attorney remained in the room and the parolee consulted with the attorney periodically.19 Attorneys reported th at all requ ested continuances have been granted.
Given Defendants’ sustained good com pliance with these requirem ents, the Special Master considers these items to be in substantial compliance.
Violation report within six business days (Exh. A): Nature of practice The Special Master was unable to review this practice during this Round. Timeliness Defendants do not curre ntly measure the date the violation report is s ubmitted. Rather, they go the extra mile, using the six-day period for continuing conversation about whether to refer the case for revocation or to handle the behavior in the community. It is
14

Case 2:06-cv-02042-LKK -GGH Document 601 Filed 01/04/11 Page 15 of 58
this latter decision that is memorialized in the database. Parole agents are also expected to generate reports during this time unless the revocation action is dropped.
Closed cases met the timeframe 98% of the tim e.20 Among open cases, only one case was la te in the m onths studied.21 All late ca ses were co ncluded on the f ollowing business day.22 This is tremendous performance on timeliness.
The parties dispute whether this step is a requirement of the Stipulated Injunction.23
Supervising Parole Agent review of packet within seven business days (Exh. A):
Nature of the practice The Mastership has not developed infor mation about Supervising Parole Agents’ practices when reviewing the revocation packet for probable cause and for completeness. Timeliness Mainstream cases appear to be tim ely 99% of the tim e.24 All not in custo dy cases were timely according to the ir standards, as were all but o ne of the extradition cases.25 All cases w ere completed by the following business day. Among ope n cases, only one appeared late in the s tudies; it concluded two days late because st aff was relying on an incorrect communication from the California Law Enforcem ent Telecommunication System. Again, timeliness was exceptional at this step.26 The parties dispute whether this step is a requirement of the Stipulated Injunction.27
Requirements concerning attorney representation Provision of counsel during revocation proceedings (¶ 15)
15

Case 2:06-cv-02042-LKK -GGH Document 601 Filed 01/04/11 Page 16 of 58
At the time of attorney appointm ent, provision of date, time, and location of the hearing (¶ 16) Defendants shall develop standards, gui delines, and training for effective assistance of state-appointed counsel (¶ 21) State-appointed counsel for Juvenile Parolees shall be appropriately compensated for hearings and appeals (¶ 24) These requirements were found to be in substantial compliance in Round IV, and all indications are that they remain so.
Timely appointment of counsel (¶ 16): The Juvenile Parole Board demonstrated timely practice during the previous Round and there were further im provements during this Round, with 98% of CalPAP appointments being timely. The seven late cases were completed within an additional two business days, which is sufficient tim e to pr epare a defense. 28 With this sustain ed performance, the Special M aster considers this requirement to be in substa ntial compliance.
At the tim e of attorney appointm ent, provision of a copy of all the evidence on which the State intends to rely or which m ay be exculpatory; evidence not provided with at least two days’ notice shall be excluded unless the state shows good cause (¶ 16, 19):
Throughout Defendants’ im plementation of the Stipulated Injunction, attorney interviews have indicated that th ey receive the state’s evidence tim ely, and this was confirmed during the writing of this repo rt.29 Five objections cam e to the Special Master’s attention during this Round; 30 this cons titutes less than 1% of the cas es that went to any type of hearing. Four objections were granted while the other was denied.31
16

Case 2:06-cv-02042-LKK -GGH Document 601 Filed 01/04/11 Page 17 of 58
With this s ustained level of compliance, the Special Master considers this requirement to be in substantial compliance.
In addition to the questions of ti mely provision, there has been a concern that th e quality of some photocopies of photographic evid ence is so poor that it gives counsel an inadequate ability to ju dge the quality of the evidence and prepare a d efense. CalPAP reports that a system to address this has been in place for s everal months and is working effectively.32 Defendants have issued instructio n to address the problem and have committed to issuing a policy.
At the tim e of attorney appointm ent, provision of relevant educational, m ental health and disability identification and source documents (¶ 16):
During the previous Round, Defendants in itiated use of a summ ary form to provide educational, m ental health and disability inform ation to attor neys and th ose making use of the field files. A dispute rem ains about what is sufficient to satisfy the requirement to provide source documents.
Right to be represented by counsel of c hoice; process for tim ely notifying of the counsel of record of the imposition of a parole hold (¶ 18):
Defendants have in place a system to notify counsel of re cord. The Special Master’s team conducted a larg e review and found that the no tifications occur routinely, with 82% being completed by the deadline the parties agreed upon.33 Those delayed took an additional one to five business days to complete. This is a m uch lower timeliness rate than with many of the Stipulated Injunction requirements.
17

Case 2:06-cv-02042-LKK -GGH Document 601 Filed 01/04/11 Page 18 of 58
Documents indicate that only three attorneys outside of CalPAP represented youth in the revocation proceedings during the Round. 34 Plaintiffs reinforce that while the number may be sm all, parolees’ right to be represente d by attorneys of their own choosing is an im portant right conferred by the Stipulated Injunc tion. Each of these attorneys was timely notified of the parole hold and it appears that the Board provided them material – the revocation packet, the re turn to custody assessment, and the attorney standards policy and procedure -- on a timely basis as well.35
Attorney will be informed of Return to Custody Assessment by the 10th business day after the hold (¶ 30):
As discussed infra, there were almost no return to custody assessments known to be late during the Round. Printouts show tim eliness was 95% in the previous Round and nearly 100% during this Round. Since CalP AP has sim ultaneous access to this information when it is entered, it appear s there was good practice in tim ely notifying CalPAP, and CalPAP a ttorneys confirm timely receipt of this inform ation throughout 2010.36 Defendants have a routine for tim ely providing the return to custody assessm ents to non-CalPAP attorneys at the time the substitution is requested; this also appeared to be working.37
Given this sustained performance, the Special Master considers this requirem ent to be in substantial compliance.
18

Case 2:06-cv-02042-LKK -GGH Document 601 Filed 01/04/11 Page 19 of 58
Adequate time for representation ; reasonable access to clien ts and files; confidential phone calls and space in which to meet; obser ving staff cannot participate in proceedings (¶ 20, 23):
Over several Rounds, counsel have desc ribed adequate tim e for representation, access to files, and con ditions for clien t meetings. CalPAP recently s urveyed the ten attorneys most frequently representing juvenile parolees, and they confirmed that each of these requirements is well m et. This was af firmed by attorneys in terviewed during site visits, as well.
Additionally, the parties ne gotiated policies and proce dures governing attorney access to files. 38 While the parties rea ched agreement, Plaintiffs note that the policy is silent on whether review can be denied for reasons of safety and security, and whether parolees can be restrained, if present duri ng the review, or exclude d; Plaintiffs would consider all of these potential practices problematic if they were to occur.39
There are no known instances of security staff giving testimony about attorneyclient communications they observed, according to the Mastership’s and monitors’ onsite reviews, and there have been no related objections documented.40
Although no system atic review has b een undertaken, c oncerns about any violations of these requirements would, by their nature, almost certainly have been raised in one of the venues noted above.
Given this sustained perform ance, the Special Master considers these requirements to be in substantial compliance.
19

Case 2:06-cv-02042-LKK -GGH Document 601 Filed 01/04/11 Page 20 of 58
Return to custody assessment within nine business days (¶ 29): Nature of practice The Special Master was unable to observe hearing officer practice in assessing at this stage probable cause and th e need for continued detenti on. It appears that 14 cases were continued on parole at this step, and three were dismissed, supporting an inference that hearing officers are applyin g these criteria. 41 The parties r ecently agreed to components necessary at this step. They will next develop audit tools and begin assessing performance in 2011. Timeliness Timeliness was extraordinary. Only one cas e was late, an d it was completed the following business day. 42 Open cases, extradition, and not-in-custody cases were consistent with this trend.43
Probable cause hearing requirements Expedited probable cause hearings (¶ 26): There have been no requests for expedited probable cause hearings in any Round to date.44
Probable cause hearing s within 1 3 business days after the hold is placed, including written bases for findings (¶ 32, 40):
Nature of Hearings The Mastership had the opportunity to review 26 probable cause hearings conducted by four heari ng officers during the Round. 45 Both good hearing practices and those needing improvement were evident. The areas of greatest concern were:
20

Case 2:06-cv-02042-LKK -GGH Document 601 Filed 01/04/11 Page 21 of 58
• ADA interactive interviews • Specifying the factual basis for probable cause findings • Considering alternatives to incarceration • Assessing probable cause to detain pending the revocation hearing
A more universal understanding of due process itself, including the ways in which it applies to every aspect of the revocation process, may prove helpful to hearing officers, especially when the situatio n calls upon them to independently think through a fairness issue. Constitutional m andates for due proc ess, both substantive and procedural, are complicated and can take year s of practice to integrate into personal and professional practice. Focused training on f undamental fairness in process and evidentiary interpretation may prove invaluable to hearing officers.
In several respects, the Defendants have greatly improved their sk ills and it ha s become standard practice for probable cause h earings to start with an inte ractive ADA interview, a review of the paro lee’s appellate rights, and an explanation of the h earing itself. Most hearing of ficers have becom e adept at reciting rights and the appellate process from memory. The Mastership and Plaintiffs have observed procedural rights still being read too quickly – decreasing the likeli hood that parolees will understand. In some cases, no m ention of appellate rights was m ade during the entire proceeding. It is improper to assign the duty of ensuring due pr ocess to the defense during the proceeding, as was stated in some hearings.
The ADA interviews during this round we re generally inconsistent in their execution as observed in 26 probable cause hearings audited by the Mastership, and continue to be one of t he least effective aspects of the hearings overall. For the ADA
21

Case 2:06-cv-02042-LKK -GGH Document 601 Filed 01/04/11 Page 22 of 58
interview to be meaningful, the interviewer must ask open-ended questions, use com mon language and non-medical terms, and invite an interactive conversation.46 Due process is at risk when there is failure to prop erly assess physical and m ental health issues and to establish effective communication before the hearing proceeds. If either is in question, or if a necessary accommodation is overlooked, th e important nature of the proceeding may be lost on the person whos e liberty is at s take, and it is akin to not hav ing them there at all.
When the ADA review is an issue, generally, the problem comes from hearing officers speaking too rapidly and asking questions that suggest an affirmative answer that may chill an informative response. In addition, the Mastership routinely observed hearing officers move on as soon as they received a “yes” or “no” answer, even when there were indications that the response m ay not have been truthful or complete and that this may affect the hearing. For example, if a juvenile answers that he no longer takes m edications for mental illness, asking hi m how he is different today fr om when he took them could develop needed inform ation about whet her effective comm unication can be accomplished.
In too m any cases, the hearing officer did not seem familiar with the disability summary before asking about the parolee’s overall health or accommodation needs. An additional, troubling observation is that it was not unusual to find that the ADA summary did not carry forward important historical health inform ation. The P laintiffs and the Mastership observed discrepancies among revoca tion packets, hearing orders and health summaries, including mental health and accommodation recommendations.
22

Case 2:06-cv-02042-LKK -GGH Document 601 Filed 01/04/11 Page 23 of 58
The hearing officers are working to expand their ability to improve interactive interviews with parolees. It is anticipated that additi onal training on ADA interactive interviewing skills is sche duled for the annual training and should lead to im proved assessment.
Attorneys comment that hearing officers clearly respect Valdivia issues. Overall, hearing officers appropriately limit their inquiry and decision making to the record and testimony. On occasion, they reach outside to the on-duty hearing officer, legal cou nsel, or other staff for advice and direction during a hearing. The Plaintiffs reportedly observed confusion by an attorney and the hearing officer in handling a parolee who m ay have been too mentally ill to pa rticipate in the rev ocation proceedings. This prompted the hearing officer to excuse the parties and telephone the on-call hearing officer, outside the presence of the atto rney and parolee. Th e Mastership observed similar activity with respect to tim e credits related to extrad ition during a hearing. Procedural due process risks are inherent when a hearing officer seek s advice from a person who is not present, recites the facts to him or her, and then relies on the third party’s feedback in formulating decisions that impact a parolee’s personal liberty, all outside the presence of the accused and his or her counsel. Consistent with fair hearing practice, th e Plaintiffs and the Mastership would prefer to see complete transparency when hearing officers seek outside opinions during a hearing.
On some occasions, hearing officers find probable cause without in viting or appearing to consider counsel’s argum ents. Hearing officers ap propriately require corroborating evidence in conj unction with an adm ission. The majority dismissed all or some of the charges when the evidence at th e hearing did not support probable cause and
23

Case 2:06-cv-02042-LKK -GGH Document 601 Filed 01/04/11 Page 24 of 58
ordered the parolee released to continue on parole. The second area of greatest concern is that, too often, hearing officers do not cite the evidence that supports a probable cause finding. Citing a general docum ent, such as th e violation report, is not sufficient; the parolee is entitled to know what facts within the document the hearing officer is relying upon.
The Mastership and Plaintiffs noticed insufficient articulation of probable cause to detain pending revocation hearings acros s the sam ples monitored. In add ition, alternatives to incar ceration were routinely not m entioned during the hearing, although findings were included in the orders as if to say they were considered. The Mastership and the Pla intiffs also n oticed incomplete or exaggerated reasons docum ented for not considering alternatives to incarceration. There continues to be a practice of collapsing consideration for alternatives to incarceration with probable cause to detain pending the revocation hearing. Th is is problem atic47 and more training on this issue could prove valuable.
In general, there conti nues to be significant difficulty with writte n records accurately and completely capturing aspects of the proceedings. In review of the records , the Mastership and Plaintiffs observed that objections, and rulings on objections, were not always record ed; the presence of partic ipants, witnesses, and observers were not always recorded; and the presence or absence of restraints were sometimes omitted from the written record. In addition, the Mastership experienced events that were not alluded to or recorded in the orders. The failu re to accu rately record the events in a hearing may substantially affect appellate due pro cess rights, future parole conditions, and permanent
24

Case 2:06-cv-02042-LKK -GGH Document 601 Filed 01/04/11 Page 25 of 58
records. It also interferes with credible st atistical data, effective training, and monitoring exercises.
Although much improved in terms of connectivity, staff did not have access to a printer or online service in a minority of hearings, which pr evented them from providing copies of the hearing orders to the parolee a nd attorney at the close of the hearings . In those instances, staff and the attorney desc ribed the follow-up m ethods that would be employed to provide the record to th e parolee. CalPAP reports show very few occasions on which orders were not imm ediately provided – an average of three per m onth – with significant improvement in recen t months. Thes e orders were each rep ortedly provided within one to two days.48
Timeliness With substantially better data repo rting capability, Defendants can now m ore definitely demonstrate that the timeliness of their probable cause hearings is quite strong, at 97%.49 The principal problem for Defendants to address is lengthy time to rescheduling in some cases. Both extradition cases and the co mpleted cases that follo wed the us ual course continued to show a very high rate of success. Both open cases and CalPAP data are consistent with these num bers.50 This rate is dim inished minimally by cases that are postponed but do not return for rehearing in a reasonable time. This particularly occurred when a parolee m issed a hearing because he was out t o court or not transpo rted. Similarly, there can be lengthy tim es to rescheduling when a new hearing is ordered by decision review.
25

Case 2:06-cv-02042-LKK -GGH Document 601 Filed 01/04/11 Page 26 of 58
Among postponements, ¼ were parolee tim e waivers, all of which were heard within the tim e waived. Another ¼ were pos tponements that were reheard within one week. The remaining half of cases, however, took additional days to weeks, meaning that the total time to probable cause hearing was 30 to 45 days. 51 With the requirement being 13 business days, this is unreasonable, even if this only affected 3% of the parolees at this step.
Reasons for postponem ents commonly include, the parolee being out to court, quarantine, medical and psychiatric crises, pa rolee request, failure of transportation, lack of jail access, evidence availability, and Defe ndants’ decision review. While the parties have agreed to a gene ral definition of good cause for dela y, they have not decided about its specific application to all of these topics, and Plaintiffs have asse rted their objections to postponements based on the latter four. De fendants have offered to prepare a summary of any restrictions on access to county jails, which will be useful in examining one of the causes of delays and postponements.
Definition of presum ed prejudice (¶ 32): Defendants a ssert that the parties negotiated one definition to be used f or both types of hearings, while Plain tiffs indicate that a definition applying to probable cause hearings remains to be developed.
Mechanical restraints at hearings (¶ 46): The Stipulated Injunction requires Defe ndants to develop policies, procedures,
and training concerning restraints that ar e consistent with the ADA, the Rehabilitation Act, due process standards, and Title 15 Ca lifornia Code of Regul ations section 4034.4.
26

Case 2:06-cv-02042-LKK -GGH Document 601 Filed 01/04/11 Page 27 of 58
The Stipulated Injunction prohi bits any policy requiring univer sal use of restraints in revocation proceedings. Defendants did distribute a policy and has held related training.
Plaintiffs continue to express concern about the use of restraints at hearings. For the time being, it seems the Defendants are comp elled to defer to local sheriff and police policy concerning restraining j uveniles. The sam pling indicated that the m ajority of parolees who were restrained at hearings we re in county jail facilities, som e of which require universal restraints while others do not. Overall, hear ing officers ty pically overruled objections to restraints, even in Defendants’ facilities.
The Special Master’s team observed restrain ts practices o nsite and in hearing records, and interviewed staff concerning them. Among 36 cases reviewed, 12 parolees were not restrained. Staff did not record restraints use in about 17% of this sample.
Defendants’ staff exercised discretion to restrain 13 parolees; about half of these were restrained according to the agreed crite ria, while it was not clear that the stated reasons met required criteria in the rem aining instances. In one not-in-custody hearing that the m astership audited, for ex ample, the otherwise compliant juvenile, with no violent history, was restrained when he a ppeared for a revocation hearing. The hearing officer explained on th e record th at it was necessary because the return to cu stody assessment recommendation was to detain him , and there was a concern that the paro lee would “act out” if he was ordered incarcerated. In response to the defense objection to the restraints, and to his cr edit, the he aring officer interviewed the pa rolee and ordered his restraints removed. The concern here is that it is not clear that the factors to be considered when weighing the necessity for restraints were activated; the decision seemed to be fearbased, rather than evid ence-based. Additional training on this issue could help to
27

Case 2:06-cv-02042-LKK -GGH Document 601 Filed 01/04/11 Page 28 of 58
highlight the reasoning invoked when considering the appropriateness of restraints during a hearing. T here is also a potential disagreem ent in interpreting the criteria; the parties should determine, in the com ing Rounds, wh ether the decision should be based on the totality of the parole e’s circumstances, or whether the pr esence of one or m ore of the factors is sufficient.
Another 11 parolees in the Sp ecial Master’s study were restrained in deference to county jail or CDCR policy. Plaintiffs stre nuously object to Defendants deferring to the policies of county jails and CDCR a dult institutions, some of which require universal use of restraints, contrary to th e terms of the Stipulated Inj unction. Reviews have not been comprehensive, but have identified 14 count y jails and all CDCR adult institutions as requiring universal restraints; in another five, Defendants may exercise discretion or the parolees are physically separated from others and are therefore not restrained. Plaintiffs are also co ncerned that Defendants’ juvenile facilities may not be f ollowing this Stipulated Injunction requirement; examples to date surfaced solely at one institution that has since closed.
Additionally, Los Angeles County Jail’s ro utine practice of restraining prisoners to furniture and the floor is objectionable and is counter to the parties’ s tipulation and order entered in September 2009. The parties agreed in 2009 to approach the jail to address this but, to the Special Master’s knowledge, this has not been undertaken.
There is a particular requirement in the Stipulated Injunction concerning pregnant parolees; the Special Master does not have current information on point as no such cases came to her attention.
28

Case 2:06-cv-02042-LKK -GGH Document 601 Filed 01/04/11 Page 29 of 58
Requirements related to revocation hearings: Final revocation hearing on or before 35 calendar days after the parole hold is placed (¶ 33):
In assessing this requirem ent, there are a number of considerations. The system must consistently provide timely hearings in th e usual course of revocation proceedings. It must also function to provi de hearings timely to special populations, sometimes small groups whose circum stances dictate counting timelines differently or suspending and resuming proceedings o nce conditions have been m et. In o peration, the hearings must provide due process, satisfying questions su ch as fairness, opportunity to be heard, elements of the violation proved sufficient fo r the applicable standard, and consideration of appropriate sanctions.
Nature of Hearings Many of the practices observed in probable cause hearin gs also take place in revocation hearings. T he hearing officers have become more comfortable with advisement of parolee rights, assessment of accommodation needs, review of m ental health and cognitive status, and orientation to the hearing process. Attention to ef fective communication carries both ADA and due process implications. The persistent weakness in h earings comes in talk ing too fast, cursory explanations, and what appear to be assum ptions that what h earing officers are s aying is being understood. Among the hearing officers assigned to hear probable cause hearings and revocation hearings, a m inority openly rely on the m ental health assessm ent from the
29

Case 2:06-cv-02042-LKK -GGH Document 601 Filed 01/04/11 Page 30 of 58
hearing weeks before instead of conducting a new assessm ent. This applies to all disabilities, but mental health status is of pa rticular concern as one m ost likely to change in the interim. More than once the ADA inte rview consisted of “Can you hear, see, and understand what we are doing here so far?” When the parolee answered “yes,” that concluded the ADA/effective communication in terview. Af ter reviewing the parolee ’s mental health history, a bette r practice would be to ask follow-up questions to ascertain his or her current abilities.52
Hearing officers manage procedural protections well, such as the taking of pleas, inviting narrative testimony and c ross-examination, and preserving distinct phases for fact-finding and disposition. There are several ways in which hearing officers demonstrate skill with substantive due pro cess issues, including routinely dism issing charges for which the State’s evidence is inco mplete or the charges are otherwise vague and cumulative. During this Round, for example, hearing officers dismissed 16 matters at hearing for insufficient evidence, lack of witness testimony, and lack of jurisdiction. 53 Several hearing officers have been observed conscientiously researching crime elements and relevant law during recesses to ensure that they make informed and legally supportable decisions.
There are some issues of due process th at require attention. Some are discusse d supra in conjunction with probable cause hearings. A few m ore are unique to revocation hearings. The treatment of proffered hearsay is a due process area of substantial concern. The Special Master reviewed the Board Orders capturing all known Comito objections during the Round, a total of 32 objections occurring across 66 revocation hearings. Fewer than one-third of the written order s applied the test co rrectly, explicitly or im plicitly.54
30

Case 2:06-cv-02042-LKK -GGH Document 601 Filed 01/04/11 Page 31 of 58
Recordings indicated that som e hearing o fficers were more effectiv e in their oral discussion of this test. Nevertheles s, admitting unverified and untested infor mation can be unfairly prejudicial to a pa rolee, risking significant harm. The confrontation balancing test is an area that requires substantial work if Defendants are to provide fair hearings and reach findings “based on verified facts and … an accu rate knowledge of parolees’ behavior,” as discussed in Morrissey.
There were a few trends when Comito practice was not up to standard. Hearing officers would consider the dili gence with which the state sought to produce the witness, but did not discuss whether there was a good r eason for the witness’ absence nor did they express a conclusion about whether there wa s good cause to deny confrontation. Hearsay was sometimes used to corrobo rate hearsay. Factors are commonly om itted from the analysis. Frequently, no balancing was conducted, and occasionally, the test was not used at all. There were also a variety of other pr actices at variance with the u sual application of this law. The Mastership looks forwar d to Defendants providing m ore guidance to increase hearing officers’ knowledge and solidi fy their practices in this critical due process area.
The parties continue to grapple with policy and practice concerning confrontation rights. While they agree on major components, there are disagreements about these rights as it concerns a substitute paro le agent as opposed to the agent of record, incarcerated youth as witnesses, disposition witnesses, and witnesses during revo cation extension hearings. Addressing these issues has been subject to starts and stops; most recently, the parties are considering mediation of these disputed issues.
31

Case 2:06-cv-02042-LKK -GGH Document 601 Filed 01/04/11 Page 32 of 58
Another problematic practice is that, unf ortunately, information is som etimes factored into decisions that is not part of the hearing re cord, or is associated with dismissed charges. This has an unfair im pact on the process and poses a risk to due process and the integrity of the hearing. This is an area that woul d benefit greatly from interactive training.
Overall, the hearing officers continue to approach disposition issues openly and with considerable deliberation. Undermining this good practice, however, was a m inority of cases observed or audited in which hearing officers took matters into account that were uncharged, historical, or otherwise unrelated to the charges before them.
On one occasion, a hearing officer consider ed the injury from a dismissed charge to support the disposition order. In anothe r, a m entally challenged young m an was reincarcerated, not because of the admitted violations, but primarily because it was felt that he did not have the cognitive capacity to manage on the outside.
In another case, the parole agent was allowed to testify, as a basis f or a return to custody disposition, that he was “con cerned about what the p arolee was doing when not being observed” and suspected but coul d not prove any wrongdoing. The disposition order seemed somewhat severe in response to the sustained charges. In an interview with the parole agent afterwards, it was learned that the sam e hearing officer had presided at the probable cause hearing and dismissed two weapons charges. The parole agent seemed confident that the hearing officer had properl y taken the dismissed weapons charges into account when sentencing. The attorney was interviewed by the m astership and confirmed that she, too, believed that the weapons charges influenced the disposition.55
32

Case 2:06-cv-02042-LKK -GGH Document 601 Filed 01/04/11 Page 33 of 58
Plaintiffs have expressed a longstanding concern about hearing officers’ facility with legal issues, such as those described above, and advocate for more training on point.
Another practice can be inconsistent with the Stipulated Injunction requirement to consider alternatives to in carceration. While the Mastersh ip recognizes there is no obligation to follow the parole agent’s recommendation, in some instances, and largely unexplained, the hearin g officers s eemed not to consider the agent’s recomm ended disposition, especially if it recommended release. For instance, in one m atter, good cause was found on a substance abuse violation and th e agent testified that the local police had requested that the parolee be released to treatment in their program, and the parole agent concurred that it would be a good result. The hearing officer incarcerated the individual without reference to the treatm ent program or other alternatives, or otherwise stating a basis for the decision. T he written order employed a basis that was inconsistent with the evidence and recommendation. The parole agen ts clearly value their jobs as advocates for change in their parolees’ lives, and ar e generally frustrated by the process that interrupts their ability to work with the pa rolees while, at the sam e time, they have limited influence on the process itself.
Timeliness To understand this population and timeliness, one must be able to assess: • Mainstream cases56 completed within 35 days • Mainstream cases pending to be completed within 35 days • Extradition cases com pleted according to the LH standards calculated from
arrival in California, rather than hold date • Activated optional waiver cases, c ompleted within 35 da ys after receipt of
activation request
33

Case 2:06-cv-02042-LKK -GGH Document 601 Filed 01/04/11 Page 34 of 58
• Activated optional waiver cases, pendi ng within 35 days after receipt of activation request
• Hearings held while the parolee is not in custody and within 60 days after notice service
• Postponed revocation hearings rehear d within the requested tim e or a reasonable time
• Postponed probable cause hearings and op tional waivers that subsequently go on to revocation hearing57
Among the 66 revocation hearings in the Round, only 8 were late, for a total of 88% compliance.58 This rate is com parable to the previous two Rounds. Open cases are consistent with closed in the analysis that follows.59
Defendants ensure that the hearings of several populations remain on time despite the need for special handling. Extradition cases, not in custody cases, and activated optional waivers were a ll timely according to th eir adjusted timeframes.60 Performance on optional waivers represents a significant improvement over the prior Round.
There was an occasional late case in each of the other populations. One time waiver was quite late because the pr ivate attorney was unavailable , while all other tim e waiver cases were rescheduled within the tim e waived.61 When the State reopens cases through “decision review,” the parolees’ right to a final hearing within 35 days is no longer fulfilled. A handful of m ainstream cases were late, generally because witnesses failed to appear or the parolee was not transported. Pl aintiffs, CalPAP and the Mastership have questioned whether pos tponement under these c onditions is reason able, particularly if preventable.62
In each of these situatio ns, the reh earing usually occurred w ithin two weeks but, rarely, it was as much as one month later. The parties have taken a step toward remedying
34

Case 2:06-cv-02042-LKK -GGH Document 601 Filed 01/04/11 Page 35 of 58 one cause – rescheduling tim e for the deci sion review rehearing – by agreeing to timeframes in recently distributed policies.
Parole revocation hearings to be held within a 50- mile radius of the alleged violation (¶ 36):
This requirement remains in substantial compliance, but some slippage was evident as described supra.
Evidence on the same terms as the state (¶ 33): In observations and on hearing recordi ngs, parolees generally put on evidence without obstacle. There were occasions when the parolee’s defense or mitigation relied in part on questioning his parole age nt, and this was f rustrated when a substitu te agent appeared. In general, however, th e system to satisfy this require ment appears to be functioning well.
Supplemental charges (¶ 34): During this Round, it appears there were nine cases w ith supplemental charges.63
The parties agreed that supplem ental charges may not be m ade based on evidence contained in the field file at the time the notice of rights is completed; no party reviewed these cases for consistency with this agreement or for other aspects of their handling.
35

Case 2:06-cv-02042-LKK -GGH Document 601 Filed 01/04/11 Page 36 of 58
Definition of good cause for delay, remedy for timeframe violation (¶ 33): The parties have agreed to define good cause as “justifiable, legitim ate and
unforeseeable reason for the d elay, asserted in good faith and caused by factors that are beyond the control of the State.” They have also agreed that, fo r any revocation or revocation extension hearing tim eframe violation, and for any probable cause hearing held after 3 5 days, any return to custody will be reduced by the number of days the hearing is late. There were few late revocation hearings during the Round, and Defendants found nearly all of them were delayed for good cause. T hree cases were exceptions. In one, the parolee was continued on parole; the remedy was provided in the second case, but not the third.64
Prejudice is presumed, and the cas e will be dismissed, if, absent good cause, a revocation hearing has not been held by the 90th day after the hold. The parties negotiated the reduction of the previ ous threshold for presum ed prejudice down to 90 days, but Plaintiffs maintain that the In junction is violated whenever the 35-d ay timeframe is not met without a showing of good cause, and that a case should be dism issed if the hearing has not been held within 60 days aft er the hold.65 To the Special Master’s knowledge, all cases were resolved before the 90th day.
Not in custody hearings w ithin 60 days after service and with all due process and ADA protections (¶ 45)
During this Round, 16 parol ees’ revocation actions were handled as “not in custody”; all were initiated at the parole unit. A mong them, 12 were concluded without ever taking the paro lee into custody.66 Three were subsequently taken into custody and their matters were concluded at a probabl e cause hearing. Only tw o not-in-custody
36

Case 2:06-cv-02042-LKK -GGH Document 601 Filed 01/04/11 Page 37 of 58
actions proceeded to revocation hearing and they were held timely.67 The Special Master’s team reviewed the two hearings. Due process and ADA
protections were comparable to those in Defendants’ revocation hearings held in custody, although there was a concern abou t the handling of restraints (see Mechanical restraints section).68
There has been consistent, tim ely practice, with equivalent protections provided, over at least one year’s tim e. The Mastersh ip considers this requirem ent to be in substantial compliance.
Requirements related to disposition Alternatives to Incarceration (¶27) The Stipulated Injunction requires Defendants to “consider whether alternatives to
incarceration are warr anted [at the initia l case conference]. The advisability of alternatives to incarceration shall be considered again at the P robable Cause Hearing and at the Revocation Hearing.” Revocation proceedings do appear to have consideration for alternatives to incarceration bui lt in at every step and acco rding to the State, ev eryone is eligible for consideration.
It is und isputed that when a paro lee is r emoved from the community f or any appreciable time, there is a risk that a ny positive gains in school, employm ent, and personal support systems are interrupted and perhaps lost. It is also undisputed that these types of su pport systems are essential for successful performance on parole. Yet, it continues to be highly unusual to release a parolee to await revocation hearing after a probable cause finding at a prob able cause hearing -- in th is Round, there was one such
37

Case 2:06-cv-02042-LKK -GGH Document 601 Filed 01/04/11 Page 38 of 58
person -- and there is no policy prohibiting it. Parole practices may be strengthened when there is an assessm ent for probable cause that establishes a righ t to maintain a charge against the parolee, and separate consideration for release pending further proceedings.
On more than one occasion during th is Round, a hearing officer openly d iscussed detaining a parolee after a fi nding of probable cause, for “h is own good” or to await placement in a treatm ent program. The hearing officers and the agents of record clearly make these decisions with the b est interests of the parolee in m ind and the outcom e can seem reasonable and also realistic under give n circumstances. That said, incarceration for these purposes raises substantial questions.
When giving alternatives to incarceration as the dis position at hearing, hearing officers do not for mally place parolees in treatm ent or work program s, but can recommend that these be considered as a c ondition of parole. Parole agents som etimes make recommendations for altern atives to in carceration at revocat ion hearings, and the hearing officers leave it to them to choos e the program or other alternative to incarceration, once a decision has been made to release the parolee.
One compilation shows that alternatives to incarceration were executed in 66% of all revocation proceedings in the Round.69 Another of Defendants’ sources shows 47% of proceedings were concluded with an altern ative.70 The reasons for these differences are unclear. In either event, this is substantial usage of options other than incarceration.
Consideration of alternatives to incarceration appears to be sy stemic in the process and is not n ecessarily captured or appropriately measured by looking only at the revocation stage. The parties are currently i nvolved in sorting out wh at alternatives are considered and when. The State is activ ely working with the Plaintiff class to
38

Case 2:06-cv-02042-LKK -GGH Document 601 Filed 01/04/11 Page 39 of 58
demonstrate compliance with this aspect of the Stipulated Injunction. Activities to date have centered on deciding the scope of infor mation necessary to do this. Plaintiffs have sought, for several years, detailed infor mation based on the conten tion that they and CalPAP must know the universe of alternative program s available to be able assess compliance. Defendants see reasonable monitoring of this topic to be much more limited. They have not provid ed documentation, but recently arranged desc riptions of staff practices in order to p rovide context and to illustrate the methods of consideration . Resolution of this dispute is ongoing.
Limiting return to custody tim e to one year; use of a matrix of r anges of revocation terms (¶ 35):
A matrix routinely guides decisions con cerning violation terms, although Plaintiffs and some system actors assert that it carries more harsh penalties than in the adult system and in the previous juvenile system.
The revocation matrix reflects the highest penalty to be one year. Hearing officers routinely inform parolees during proceedings that this is the m aximum term. No penalty exceeded one year in the hearing s observed by the Special Master in 2009 and 2010; while not systematically chosen, these total well over 100 in person, in Board Orders, and on recordings. Likewise, no such problem has been discussed in Plaintiffs’ m onitoring reports.
There is an issue, however, with the handling of in-custody misconduct during the period in which the parolee is pending revocat ion. Policy indicates that, when such cases involve violence, they will be charged separate ly from the original violation allegations
39

Case 2:06-cv-02042-LKK -GGH Document 601 Filed 01/04/11 Page 40 of 58
and a separate penalty can attach, which could extend the revocation term beyond one year. Similarly, the parties have encountered cases in which supplemental charges for parolees not in custody carried the risk of separate sentences whose total could exceed one year. Plaintiffs strongly object to these po licies. It is difficult to im agine, with the information currently available, that these practices are consistent with the Stipulated Injunction.
Release within three days if tim e has been served (¶ 38): No information came to the Special Master’s attention during the Round.
Requirements related to ADA and effective communication ADA and effective communications accommodation (¶ 23, 48, 50, 51, 52, 53): ADA and effective communication issues have been detailed in previous reports of the Special Master. To summarize, the part ies negotiated, and Defe ndants distributed, revised policies and procedures on point; Defendants have summarized relevant field file information; and pa role agents and hearing officers routinely seek to iden tify accommodations needs and offer to fulfill the m at different step s of the revoc ation process, including volunteering magnifiers and assistive hearing devices. There has been training for st aff in all divisions and plans are to inco rporate similar materials in the upcoming annual refresher trainings. Plaintiffs would very much like to see more training concentrated on these issues. An electronic database is in rou tine use, however, forms do not always accurately record known disabilities. In small snapshot studies, for example, Plaintiffs identified 18
40

Case 2:06-cv-02042-LKK -GGH Document 601 Filed 01/04/11 Page 41 of 58
cases that d id not carry forward known disability inform ation.71 An additional trend is parole agents documenting a sign ificant limitation, such as a learning disability, but indicating that th e parolee would not need accommodation or effective communication assistance. Because of this, and because th e available printouts cap ture limited useful information, centralized tracking of disabi lities and accommodations provided is o nly partially implemented.
Forms in alte rnative formats (¶ 55): During the Round, Defendants m ade available in Spanish and large print those form s given to parolees during service of the notice of rights and charges. The parties have agreed that, rather than providing forms in audio format, Defendants will read the forms aloud when needed. Defendants previo usly ensured that there was equipment available at each of their f acilities for parolees needing to listen to materials on recordings; the status of providing this support to parolees housed in jails is unknown, and Plaintiffs assert that it is necessary.72
Prohibition of discrimination in parole placements and referrals to services (¶ 27): Information concerning this requirem ent did not com e to the Special Master’s attention during the Round. The parties disagr ee concerning documentation that may be necessary to demonstrate compliance with this provision.
Develop an ADA grievance procedure (¶ 54): Defendants h ave put in p lace an ADA grievance procedure and began, during this Round, to routinely distribute the for m when parole agents s erve the notice of rights an d charges.73 The Special Master has also
41

Case 2:06-cv-02042-LKK -GGH Document 601 Filed 01/04/11 Page 42 of 58
observed Defendants’ staff making parolees aware of the ADA grievance procedure during some hearings.
Defendants report receiving no ADA grievances the last two Rounds.74
Development of an appeal process (¶ 43): Defendants have also developed an app eal process with the com ponents required in the Stipulated Injunction, m uch of which is operating well. Hearing officers generally informed parolees of their right to app eal, including the assist ance of counsel and timeframes; however, this was m issed in enough hearings that this practice needs more attention. The system employs one level of appeal th at requires parolees, or their attorneys, to file with the Juvenile Parole Board Execu tive Officer within 20 days of receivin g the Board Order. Defendants’ documents reflect 18 appeals handled during the Round. 75 The Special Master did not review the content of the appeal decisions; previously, she has found them to be of good qualit y, but Plaintiffs were concerned that they did not provide sufficient information regarding the basis fo r decision. By policy, th e Executive Officer does have the ability to grant release, discharge or continuation on parole, consistent with the Stipulated Injunction. In terms of timeliness, Defendants’ and CalPAP data show that, in all cases, the Board issued a d ecision within 10 business days of receipt, as required, and CalPAP received notice of decisions with in the required five business days. This timeliness represents further improvement. It is unknown whether deci sions also reached parolees in this time.
42

Case 2:06-cv-02042-LKK -GGH Document 601 Filed 01/04/11 Page 43 of 58

Defendants document nine requests for ta pes in the Round. All but one of these requests reportedly were filled in two weeks or less, as requir ed.76 In one case, the

recording failed and the parolee was granted a new hearing in accordance with policy.

There is an additional m echanism termed Decision Review, which has som e

features similar to an appeals process. Defendants review each Board Order for m istakes

of fact, law or policy. P arolees and the Parole division can also request that a decision be

reviewed using these criteria. Plaintiffs con tinue to strenuously objec t to this system in

both concept and practice. Interviewed CalPAP attorneys also expres sed the sense that

decision review was conducted unf airly and ar bitrarily. The parties initiated a dispute

resolution process for this topic. They nego tiated some of the standards and tim eframes

and memorialized those in policy. They have agreed to defer work on the dispute while

these new practices are put into place.

Decision review has invaluable potential as a tool for training and monitoring and,

as such, can complement the appeals process. It is of concern , however, when necess ary

oversight extends parolees’ tim e in custody, esp ecially when reach ing the sam e result,

and when the lines are blurred between qua lity control and s ubstituting judgment.

Additionally, this Round’s cases raise a note of caution about appropriate staffing for

Defendants to consider.

.

Current practice subjects all hearing records to deci sion review within ten

business days of the hearing and sets out procedures fo r notice. All cases ordering rehearing were timely in the review and notice given. 77 The executive officer or designee

is not permitted to substitute his or her own judgment or discretion for that of the hearin g

officer.

43

Case 2:06-cv-02042-LKK -GGH Document 601 Filed 01/04/11 Page 44 of 58
Where a mistake is identified and its correction would be beneficial to the parolee, it is enacted. To the Special Master’s know ledge, these changes are not tracked. Any action that would be adverse to the parolee requires notice to be given and a new hearing to be scheduled.78 The State exercised discretion to reverse final decisions and order new hearings in four cases during the Round and CalPAP requested another three; about twothirds involved probable cause decisions and the remainder were revocation decisions.
Reversal orders improved during the Round by stating the basis for the reversal, a new and welcom e development. After re viewing these decisions, however, the Mastership notes the following concerns. It appears as though, in som e cases, the automated protocols of the computer record-keeping system may still be erasing original notes in the hearing orders and replacing them with the reviewing notes, and the course of the proceedings is not always apparent from the record.
In one case, it appears that contradictor y drafting led to a subsequent probable cause finding on a charg e that had been dism issed.79 In one matter, it is unclear whether the evidence used to reverse the decision on rev iew was available at the initial prob able cause hearing.80
In several matters, the person who reviewed the cases and reve rsed the decisions was assigned to hear the case de novo. When defense counsel objected, the hearing officer asserted th at professional acum en could overcome any potential for bias and overruled the objection.
In one case, the hearing officer dis missed attempted m urder charges when the State’s witnesses failed to appear without good cause. The remaining charges were disposed of for tim e served, and the parolee was ordered released to continue on parole.
44

Case 2:06-cv-02042-LKK -GGH Document 601 Filed 01/04/11 Page 45 of 58
As a result of decision review, however, he was held in custody for another m onth to await a second hearing at which th e same result was obtained, and fo r the same reasons. After seven months, the parolee was released to continue on parole.
These examples point to the need to continue to refine decision review policy and practice to protect ag ainst the appearance of, and pot ential for actual, subs tituted judgment, conflict of interest, and unfairness to parolees. When decisions are disturbed under such circumstances, it raises the risk of violating due process.
Comprehensive annual training on ADA and effective communication, the Stipulated Injunction's requirements, policies and procedures, due process (¶ 56):
Defendants have provided str ong training for staff. In a ddition to annual training, during most months, Defendants distribute instructional memoranda clarifying Stipulated Injunction mandates and setting out procedures where previ ous interpretation had been unclear or not well-executed. Both the Paro le division and the Board have provided agendas for annual training anti cipated close in tim e to the filing of this report; they reflect each of the broad topics required by the Stipulated Injunction.
Plaintiffs attend trainings and provide feedback on cont ent. Defendants made great improvement during the Round in providing mate rials in sufficient tim e to comm ent. Plaintiffs would particularly like to see m ore training so that hearing officers and parole staff become m ore skilled in disab ility and effective communication issues and legal analysis.
45

Case 2:06-cv-02042-LKK -GGH Document 601 Filed 01/04/11 Page 46 of 58
Tracking mechanism for timeframes and reasons for delay (¶ 13, 32, 33): Defendants employ a complex information system that facilitates many aspects of compliance and tracking perform ance. As deta iled in previous reports of the Special Master, it is built on the pr ogramming initiated more than 10 years ago, based on the Valdivia Defendants’ projection of how the re vocation system would operate and the functions and data that would be needed. It has a great m any capabilities, but it is inflexible and was not designed for various f unctions that it has since becom e apparent are needed. Some of the operational rules by which it handles data create the im pression of inaccuracy, which is often dispro ved after investigation. Taken together, the system has significant limitations in serving management and compliance reporting. During the Round, Defendants and inform ation system contractors took meaningful strides toward rem edying some of the effects of these lim its. Programmers wrote reports that capture several populations previously undemonstrated. They improved data capture so that hearing officers’ work is more accurately reflected on Board Orders - making for a m ore accurate hearing record and appeal record – and reduced so me possibilities for inaccurate hold dates generated by the interaction of this system and the California Law Enforcement Teletype System. They revised some reports, thereby making certain information more manageable and reducing the appearance of inaccuracies. These are all important improvements. And still, staff and the contractors must run up against the limits of the system’s design. At regular intervals, staff had to conduct labor-intensive studies on topics that would ordinarily be automated. To produce accurate and complete numbers, staff and the Special Master had to piece t ogether information from a series of re ports and,
46

Case 2:06-cv-02042-LKK -GGH Document 601 Filed 01/04/11 Page 47 of 58
through multiple hand calculations, adjust for va rious irregularities. The required tracking mechanism is in place, but it places significant limits on Defendants’ ability to demonstrate compliance.
Monitoring process In previous Rounds, the pa rties reached agreement conc erning a detailed m onthly production of documents and recordings by which Plaintiffs may review some aspects of the remedy’s implementation. Defendants ha ve provided those materials m onthly. Plaintiffs have raised concerns about the accuracy and utility of some documents. The parties have also agreed to a num ber of onsite visits by Plaintiffs’ counsel independently and in conjunction the Master ship. There are occas ional difficulties in access at lo cal jails, but the parties are wo rking to reso lve them. For the first tim e, Plaintiffs were able to observe notices of rights and charges during this Round. The parties anticipate renegotiating the monitoring agreements for 2011. The Stipulated Injunction requires Defendant s to develop self-monitoring to ensure compliance with its terms and with relevant policies and procedures (¶ 57). The Office of Audits and Compliance, an office external to the Division of Juvenile Justice but within CDCR, will serve to conduct monitoring. Plaintiffs doubt that an office within CDCR can be sufficiently independent to produce results that can be relied upon. 81 The Mastership’s contacts with this office to date raise no concerns about its objectivity. As discussed supra, the parties have been negotia ting “standards and criteria,” which detail com ponents necessary to fulfilling the co urt’s requirements at each revocation step.82 These standards an d criteria will be used as the basis for audit too ls,
47

Case 2:06-cv-02042-LKK -GGH Document 601 Filed 01/04/11 Page 48 of 58

with which this office will conduct reviews.

To date, the parties have worked coopera tively on designing the initial audit tools

and soliciting Plaintiffs’ input. The Special Master has significan t reservations about

some of the m ethodology and Plaintiffs m aintain substantial concerns, as m uch of their

input was rejected and they are concerned that non-qua ntifiable aspects are not

sufficiently covered. As audit tool developm ent is s till underway, particularly with the

introduction of standards and crite ria, the Mastership is hopeful that these concerns will

be addressed.

In addition to for mal audits, Defendants have a num ber of oversight m echanisms

integrated into operations. From the

outset, Defendants have m aintained a

multidisciplinary team that meets at regular intervals to design, oversee and troubleshoot

implementation; to share inform ation; and to jointly create policy and regulation.

Members of this body examine late cases at every revocation process step; investigate the

reasons; implement and check on corrective action; and report to the full task force on the

substance and outcome of these efforts monthly.

Headquarters staff reportedly ch eck open case reports daily for timeliness at each

step and follow up to rem edy any appeari ng late. Defendants indicate that field

supervisors also frequen tly check database reports concern ing timeliness. These are all

excellent measures to ensure th at the system becomes established and that sys temic and

individualized obstacles are iden tified and addressed early. The widespread and

consistent nature of these practices make it more likely that oversight will becom e and

remain institutionalized.

48

Case 2:06-cv-02042-LKK -GGH Document 601 Filed 01/04/11 Page 49 of 58
Revocation may be extended only after a revocation extension hearing (¶ 35): Revocation extensions replaced Defenda nts’ previous system of increasing parolees’ in-custody time through “treatment and training time-adds” and the disciplinary system called “DDMS.” 83 Defendants’ staff report they carefully and frequently monitored the disciplinary system in 2009 to ensure it was no longer being used to extend parole violators’ time in custody. They recently verified that no time adds or DDMS time extensions have been issued to youth servi ng a parole violation te rm during the last two Rounds.84 This demonstrates that this requirement has been f ulfilled for an extended period, and the Special Master will consider it to be in substantial compliance.
Revocation Extensions shall only be i ssued for serious in-custody misconduct or willful program failure and after a hear ing timely conducted by a hearing officer with attorney representation and a copy of the decision and tape and appeal rights (¶ 35, 40):
DJJ is operating a revocati on extension system, which handled 20 cases during the Round, all of which wer e timely at each step ex cept one notice of rights and charges. 85 Open and closed cas es are cons istent on these m easures.86 Only one case involved an incident within the month before the parolee was set for release. In that case, the probable cause hearing was held eight days after the incident, far ahead of the deadline and only one day after his planned release. 87 Defendants are to be particularly com mended for the quick work in arranging this hearing and minimizing the potential for unnecessary time in custody.
49

Case 2:06-cv-02042-LKK -GGH Document 601 Filed 01/04/11 Page 50 of 58
Information about the conduct of hearings is lim ited. The Special Master’s team recently observed one onsite for the first time, as these are rare occu rrences. The conduct of the hearing and its due process protections were cons istent with Defendants’ other hearings. The Special Master does not have information concerning whether parolees are receiving copies of their written hearing records.
Policies and procedures governing dual commitments (¶ 45): Defendants distributed in 2009 a polic y governing dual comm itments and have designated a responsible staff member in headquarters.88 Some interviewed parole agents asserted that comm unication and coordination with parole agents in the adult sy stem operates well. A dispute rem ains concerning good tim e credits fo r dual comm itments who opt to be housed in adult institutions.
Elimination of “temp orary detentions”; immediate rescission of relevant regulation (¶ 39):
The Stipulated Injunctio n requires Def endants to “immediately rescind Title 15, California Code of Regulations § 4985,” whic h concerns this practice. Defendants report that this regulation and Title 15, California Code of Regulations § 4826 were rep ealed in prior Rounds. During this Round, Plaintiffs observed cases in which the parolee was detained and the parole agent’s disposition recommendation was to continue on parole, or the agent recommended detention but m ade plans for comm unity placement, or the hearing officer ordered a continuation of parole ; in each of these scenarios, Plaintiffs are concerned that Def endants’ staff are intend ing to c ircumvent the prohibition on
50

Case 2:06-cv-02042-LKK -GGH Document 601 Filed 01/04/11 Page 51 of 58
temporary detentions. The Mastership does not see these actions as running afoul of this requirement.
In interviews with th e Mastership, parole agents expressed con cern that the Stipulated Injunction had im posed unreasonable limitations on their ability to take immediate and short-term measures to make parole adjustments and reduce long term jail time. Although all indicated that temporary detentions had b een seriously abused in the past, they all agreed that, used correctly, it served as an i mmediate and valuable tool for short-term consequences. This, they asser ted, unnecessarily resulted in inter rupted employment, missed school, and more incarceration time for parolees.
Summary In a period of significant disruption – including staff de partures, prolonged uncertainty, the expec ted major losses of parole resp onsibilities, and substantia l leadership changes – D efendants’ staff have done a rem arkable job conscien tiously maintaining a well-designed system. How those continu ing changes will af fect LH is an open question to which the parties should devote attention in the immediate term. In this cauldron, Defendants previously achieved substantial com pliance on six requirements, and the Special Master is recommending another seven in this Round. With one relatively m inor exception, Defendants ha ve maintained high performance both on the items found in substantial compliance and on those for which they assumed exclusive monitoring responsibility. Attorneys and clients work togeth er under conditions conducive to good representation. Juveniles no longer waive th eir rights or accept disp ositions without
51

Case 2:06-cv-02042-LKK -GGH Document 601 Filed 01/04/11 Page 52 of 58
advice of counsel. Revocation terms do not stretch out indefinitely, although lawyers and parole agents do view the term s as too harsh, perhaps the subject of continuing conversation. The steps in a revocation process occur predictably and timely.
Based on this solid foundation, the partie s must proceed w ith the remaining hard work that lies ahead. P rincipally, that work is of two characters : (1) building up the revocation documents and hear ing practice, s o that what is d elivered accomplishes effective communication and satis fies due process standards, and (2 ) establishing the policies, procedures, regulations, and internal systems needed to deeply root due pro cess protections for juveniles in the state’s system.
In the realm of revocation documents and hearing practice, this will con centrate on eliminating the occasional practices that undermine the integrity of the process as a whole – relying on external eviden ce or conjecture, overlooking perceptions of conflict of interest or arbitrariness, finding cause when an elem ent is missing or based on evidence that could be neither verified nor disprove d, paying insufficient attention to whether a parolee understands his or her charges a nd choices, wide variations in outcom es depending on the hearing officer who presides.
In terms of the system’s sustainability, internal oversight and drafted regulations are well underway. Policies have been for mulated to get a system established and to give staff clear guidance about its operations. Th ey are by no m eans complete. A number of the outstanding and reserved policy issues are not extraneous refinements, but core due process issues that necessarily follo w initial implementation, and which require th ought, attention, and application if due pr ocess is to be accomplished and the LH orders satisfied.
52

Case 2:06-cv-02042-LKK -GGH Document 601 Filed 01/04/11 Page 53 of 58
The Special Master comm ends the pa rties, along with the attorney panel administration of CalPAP, on their m any accomplishments to date. She looks forward to their continued collaboration – so critical to the success es to date -- in achiev ing the remaining goals necessary to fulfilling the LH mandates.
Recommendations The Defendants have d emonstrated compliance with several requirem ents of the Stipulated Injunction. I ther efore recommend that the C ourt order that the following requirements are substantially compliant, and that the subjects will therefore no longer be a primary focus of Plaintiffs’ or the Special Master’s monitoring unless and until it comes to the parties’ or the Special Master’s attention that there has been a significant decline in compliance. These orders should apply to the following requirements: • Timely appointment of counsel (¶ 16) • At the tim e of attorney appointm ent, provision of a copy of all the evidence on which the State intend s to rely or which may be excu lpatory; evidence not provided with at least two days’ notice shall be excluded unless the state shows good cause (¶ 16, 19) • Attorney will be informed of Return to Custody Assessment by the 10th business day after the hold (¶ 30) • Adequate time for representation ; reasonable access to clien ts and files; confidential phone calls and space in which to m eet; observing staff cannot participate in proceedings (¶ 20, 23) • Not accepting waivers of hearing rights or the right to counsel made prior to the juvenile parolee meeting with counsel; waivers of hearings and requests for continuance must be made in writing in the presence of counsel (¶ 17, 31) • Not in custody hearings within 60 days afte r service and with all due process and ADA protections (¶ 45)
53

Case 2:06-cv-02042-LKK -GGH Document 601 Filed 01/04/11 Page 54 of 58
• Revocation may be extended only after a revocation extension hearing (no timeadds or DDMS time extensions) (¶ 35)

Respectfully submitted,

/s/Virginia L. Morrison
Virginia L. Morrison Special Master

Decem

ber 22, 2010

1 This is distinguished from the separate requirement for counsel of choice, which remains subject to full Court oversight 2 50 Mile Report for each of April through September 2010; Closed Case Summary Apr. 1 through Sept. 30, 2010 3 Assembly Bill No. 1628, enrolled Oct. 11, 2010 4 If revoked, there are currently differing interpretations of whether, upon the subsequent release, they would be under the jurisdiction of the state or counties. 5 California Regulatory Notice Register, Sept. 17, 2010 6 Correspondence by S. Cooppan, Nov. 1, 2010 7 Correspondence by C. Chen, Sept. 3, 2010 8 The parties refer to these as “Standards and Criteria.” While there is agreement on a basic set of components for each step, in most cases there are additional components the Plaintiffs assert are necessary to satisfy the Stipulated Injunction’s requirement. 9 Closed Case Summary, Apr. 1 through Sept. 30, 2010 10 Spreadsheets titled Open Case Summary capture all open cases at a point in time in each of five months; there were an average of 48 in each study. In these studies, Defendants reviewed and recorded the timeliness of every step of every case. Among these 240 cases examined, two were late at this revocation process step, less than 1%, just as with the closed cases.
This method controls for the two ways that cases were previously not visible. To the Special Master’s knowledge, there are no other populations pulled out of reporting at this step. 11 Five cases appeared late; three were completed one day later and two were not-in-custody cases subject to a different timeline. Closed Case Detail, Step PCD, Apr. 1 through Sept. 30, 2010, and related drilldowns 12 Source for this analysis is a sample of 101 Charge Reports, mostly drawn through random method, and constituting almost 30% of the notices in the Round. See documents titled Charge Reports sample.pdf, Charge Reports – all Oct list.pdf, and Closed Case Detail by JPB every 4th REFER.pdf 13 Special Master’s observations; Plaintiffs’ monitoring letters dated May 21 and June 30, 2010. Not all data points commented on herein were recorded by all monitors. 14 Plaintiffs object to this having occurred. 15 Plaintiffs object to this practice. 16 The analysis begins with Closed Case Summary, but it incorrectly includes 33 cases that were closed before service was necessary. See electronic file titled Email explaining apparently missed NORs.docx. Thus, among the cases shown in Closed Case Summary, 8 were 1 business day late, 2 were 2 business days late, and 1 is an extradition case that was closed out after an extended period because the parolee never returned to California (a total of 10 late cases). Closed Case Detail – Late NORs. For reasons for the cases taking two additional days to serve, see NOR Unsuccessful, Will Retry.

54

Case 2:06-cv-02042-LKK -GGH Document 601 Filed 01/04/11 Page 55 of 58
Finally, among extradition cases, two were late for one day and a third appeared to be late but was not. Closed Case Summary – Extradition. Similarly, service on all not-in-custody cases was timely, with one incorrectly appearing late.
All of the reports referenced in this endnote were run for Apr. 1 through Sept. 30, 2010. They can be found, along with certain individual cases, in the electronic folders titled NOR, Extradition or NIC.
CalPAP keeps statistics for a population defined slightly differently; it found 99% compliance with all cases completed within an additional 2 business days. See DJJ Notice of Rights Compliance Report for each of Apr. through Sept. 2010
Defendants examined each open case at a point in time in each of five months, recording the timeliness of each step that had been completed or was pending. In the open cases studied, all but one had timely service. See spreadsheets titled Open Case Summary and dated May 17, Jun. 8, Jul. 14, Aug. 18 and Oct. 12, 2010, in electronic folder titled Timeliness reports. This method controls for the two ways that cases were previously not visible. To the Special Master’s knowledge, there are no other populations pulled out of reporting at this step. 17 The investigation occurs before CalPAP attorneys are appointed. Parolees may or may not have counsel in concurrent criminal proceedings. 18 See Plaintiffs’ letters assessing monthly document productions for Jul. and Aug. 2010 19 Informal communications with CalPAP 20 Closed Case Summary, Apr. 1 through Sept. 30, 2010 shows 21 cases late, but on examination, 10 of those cases were extradition cases that had not returned or not in custody cases subject to a different timeline. See individual cases in the electronic folder titled Referral Decision. Thus, 11 of 458 cases were late, for a total of 2%. Each was concluded the following day. See Closed Case Detail – Refer. 21 See spreadsheets titled Open Case Summary and dated May 17, Jun. 8, Jul. 14, Aug. 18 and Oct. 12, 2010, in electronic folder titled Timeliness reports. This method controls for the two ways that cases were previously not visible. To the Special Master’s knowledge, there are no other populations pulled out of reporting at this step. 22 See Id. and Closed Case Detail – Refer 23 It is contained in the flowchart attached as an exhibit to the Stipulated Injunction. Defendants contend that the Stipulated Injunction expressly excluded this step as a requirement by the language “The flowchart does not create any rights beyond those expressly set forth in ¶¶ 1 to 57.” 24 Closed Case Summary, Apr. 1 through Sept. 30, 2010 shows 18 cases late. After drilling down on those, only 5 were late; the remainder were NIC and in the community prior to this step, and extradition cases dropped deferring to other jurisdictions, and a 2009 case incorrectly captured. Thus, 349 of 354 cases is a 99% timeliness rate. See contents of electronic folder titled Supervisor Review (Violation Report step) 25 NIC Referrals and Extradition Cases, each run for Apr. 1 through Sept. 30, 2010. 26 See individual case in electronic folder titled Supervisor Review (Violation Report step), as well as spreadsheets titled Open Case Summary and dated May 17, Jun. 8, Jul. 14, Aug. 18 and Oct. 12, 2010, in electronic folder titled Timeliness reports. This method controls for the two ways that cases were previously not visible. To the Special Master’s knowledge, there are no other populations pulled out of reporting at this step. 27 Defendants contend that the Stipulated Injunction expressly excluded this step as a requirement by the language “The flowchart does not create any rights beyond those expressly set forth in ¶¶ 1 to 57.” It is Plaintiffs’ position that the steps in the flowchart are part of the Stipulated Injunction because it “incorporate[d] by reference” the flowchart and the flowchart is attached as an exhibit. 28 DJJ Date Case Assigned Compliance Report for each of Apr. through Sept. 2010. CalPAP confirms that these figures capture mainstream, extradition and NIC cases. 29 CalPAP surveyed the 10 attorneys who represent the most juvenile clients. The figures in this report do not include the opinions of the 3 attorneys parolees chose from outside the CalPAP panel. 30 Other Objections reports dated Mar. 1 through May 31, 2010 and Jun. 1 through Aug. 31, 2010, individual cases in electronic folder titled Substantive Due Process; Special Master’s onsite observation on Oct. 26, 2010 31 Where the objection was denied, it appears that the bases were that the information was being used in the disposition phase and that at least one aspect of the evidence had been provided to counsel.
55

Case 2:06-cv-02042-LKK -GGH Document 601 Filed 01/04/11 Page 56 of 58
32 CalPAP reports that Defendants more frequently provide color photos at the outset. CalPAP clerical staff check packets on arrival; if the copies are inadequate, they notify designated people at Defendants’ headquarters and replacement copies have always been provided in time for the probable cause hearing. 33 The team reviewed 96 revocation packets (approximately a 27% sample) chosen principally by random method and supplemented by recent cases. Among them, 79 notices were issued within four business days of the hold. 34 Document Production Itemization for each of Apr. through Sept. 2010 35 Id; Case Status Reports and revocation packet excerpts contained in electronic file titled Attorneys 36 According to the 10 attorneys who most commonly represent juvenile parolees, in response to informal questioning by CalPAP administration 37 Defendants indicate that non-CalPAP attorneys have expressed their intention to represent parolees after CalPAP attorneys were appointed, so the return to custody assessments had already been generated and were provided with the revocation packets at the time the substitution was signed. Defendants say there was one exception where the attorney communicated the substitution earlier, and the return to custody assessment was provided when the revocation packet was generated. 38 Access to Youth Files and Information by Legal Counsel and Authorized Representatives, CN-297 39 Informal communications with Plaintiffs October 2010 40 The Southern California women’s facility has particular vulnerability on this point, since counsel may be in northern California if events occurred there, and may need to consult with clients by phone before a revocation hearing. The parties are aware of one 2009 case in which it was known that security staff was present during such phone calls. Predictably, this would occur for other women, as well. However, with no known security staff testimony, it does not appear that the risk of using confidential attorney-client communications in hearings has been actualized. 41 See electronic file titled 10-15 email explaining NIC report and individual records in electronic folder titled RTCA 42 Closed Case Summary, Apr. 1 through Sept. 30, 2010 shows 11 cases late. After drilling down on those, only 1 was late; the remainder were NIC and in the community prior to this step, or 2009 cases incorrectly captured. See Closed Case Detail – RTCA for the same date range and individual records in electronic folder titled Supervisor Review (Violation Report step) (the cases appearing late at RTCA are a subset of the cases appearing late at that step)
Closed Case Summary includes all populations. For verification of the subpopulations, the Closed Case Summary – Extradition and NIC Referrals reports also show 100% compliance at this step. 43 Closed Case – Extradition and NIC Referrals Apr. 1 through Sept. 30, 2010; spreadsheets titled Open Case Summary and dated May 17, Jun. 8, Jul. 14, Aug. 18 and Oct. 12, 2010, in electronic folder titled Timeliness reports. This method controls for the two ways that cases were previously not visible. To the Special Master’s knowledge, there are no other populations pulled out of reporting at this step. 44 CalPAP Requested Expedited Hearings, Apr. 1 through Sept. 30, 2010; see prior reports of the Special Master 45 See contents of electronic folder titled Hearings 46 For instance, asking if the parolee is prescribed any medication, or if he is taking all prescribed medication, would likely prove more interactive and productive than asking about “psychotropic medication,” a medical term. 47 Plaintiffs register a strong objection to this occurring. 48 Missing Board Orders, run for each of May through Sept. 2010 49 Closed Case – LH Timeliness Rules, Apr. 1 through Sept. 30, 2010 shows 319 cases. Although 317 appear timely, this includes 19 postponed cases that are automatically counted as timely regardless of when the rehearing occurs, so these are subtracted from the total (to 298). Closed Case Postponements for those dates reveals 5 were timely time waivers, 5 were timely postponed probable cause hearings, and 9 were postponed probable cause hearings whose rescheduling was delayed, so 10 were added to 298 timely cases. Closed Case Extradition shows all 11 cases timely. Thus, of 330 cases, 308 were timely, or 97% 50 See spreadsheets titled Open Case Summary for each of five dates in electronic folder titled Timeliness reports; Open Case Summary – Time Waiver and Open Case Postponements for sample dates; individual records; and DJJ Probable Cause Hearing Compliance Report for each of Apr. through Sept. 2010 -- all in electronic folder titled PCH 51 Closed Case – Postponement, Apr. 1 through Sept. 30, 2010
56

Case 2:06-cv-02042-LKK -GGH Document 601 Filed 01/04/11 Page 57 of 58
52 These might include health history, most recent medical examination, whether the parolee is taking prescribed medications for mental health issues, and how the presence or absence of that medication affects his ability to concentrate and express himself. 53 Juvenile Revocation Scheduling and Tracking System, Hearing Decision Dismiss, Apr. 1 through Sept. 30, 2010. Not all of these occurred at revocation hearing. 54 CalPAP reports concerning Comito objections and individual records contained in electronic file titled Comito 55 The attorney acknowledged she did not raise the issue or object.
56 This term is used to describe those revocation actions that follow the normal course. The concept excludes cases with special circumstances, such as not in custody hearings, extradition, parolee time waivers, optional waivers, and postponements. 57 These do not appear in the information system reports otherwise referenced here and must be accounted for separately. 58 Closed Case Summary, Apr. 1 through Sept. 30, 2010. While this report shows 11 cases late, 3 were not late because they were not in custody or a time waiver was in effect and the system did not reflect these correctly. See document titled JPB Late Cases April 10-September 30 (20101028).xls 59 See spreadsheets titled Open Case Summary for a date in each of five months of the Round; Open Case – Time Waiver and Open Case – Postponement for Oct. 14 and Oct. 28, 2010; activated open cases on Optional Waiver Timeliness, Apr. 1 through Sept. 30, 2010 60 Defendants’ Compliance Report; DJJ Optional Waiver Activated Cases for each of Apr. through Sept. 2010; and Closed Case Summary – Extradition, NIC Referrals, Optional Waiver Timeliness, each run for Apr. 1 through Sept. 30, 2010. In the latter report, blanks indicate optional waivers taken but not yet activated.
The optional waiver timeline is one Defendants are applying. Plaintiffs contend that counting the days to hearing should resume at the point when the optional waiver was exercised (for a total of 35 days in the revocation process, not including the period of the optional waiver 61 Closed Case Summary - Postponement Apr. 1 through Sept. 30, 2010; document titled JPB Late Cases April 10-September 30 (20101028).xls 62 See, e.g., Plaintiffs’ monitoring letter dated Jul. 28, 2010; informal communications with CalPAP 63 Closed Case Summary – Supplemental Charge Cases, Apr. 1 through Sept. 30, 2010; Open Case Summary -- Supplemental Charge Cases Oct. 28, 2010 64 DJJ Revocation Hearing Cases-Over 35 Days, for each of Apr. through Sept. 2010; Closed Case Detail – RevH; and individual records contained in the electronic folder titled RevH. Defendants have since agreed to provide the remedy for the third case. 65 Joint Stipulation Regarding Modifications to Division of Juvenile Justice Parole Revocation Policies and Procedures, Sept. 10, 2009 66 Closed Case – NIC Referrals Apr. 1 through Sept. 30, 2010; electronic file titled 10-15 email explaining NIC report 67 Id. and individual cases in electronic folder titled NIC 68 See individual hearing recording and board order in electronic folder titled NIC 69 2010 Alternatives to Revocation, Nov. 1, 2010, based on a review of the system Compstat 70 Closed Case – Alternatives to Incarceration Summary, Apr. 1 through Sept. 30, 2010 71 See, e.g., Plaintiffs’ letters assessing cases in the monthly document production, letters dated May 21, Jun. 28 and Jul. 28, 2010 72 Informal communications with Defendants Mar. and Nov. 2010 73 Special Master’s observations 74 Document Production Itemization for each of Oct. 2009 through Sept. 2010 75 Appeals documents within monthly document productions Apr. through Aug. 2010 76 Document Production Itemizations, Apr. through Sept.2010 77 DJJ Decision Review Cases for each of Apr. through Sept. 2010 78 Agreed sections of DJJ Decision Review policies – see, e.g., redlined copy exchanged by parties Jul. 30, 2010 79 This charge had not been reinstated by the decision review order
57

Case 2:06-cv-02042-LKK -GGH Document 601 Filed 01/04/11 Page 58 of 58
80 See Plaintiffs’ monitoring letter dated Jul, 28, 2010 and Defendants’ response dated Aug. 3, 2010 81 See correspondence from Plaintiffs, dated Oct. 19, 2010, in response to Defendants’ Compliance Report 82 A basic set of standards and criteria appears to be nearing completion. The parties remain in disagreement about additional components that Plaintiffs aver should be included, and the parties intend to address these in dispute resolution processes. 83 The latter is still used for wards in custody and to for corrections for parolees’ behavior other than extending their time in custody. 84 Staff conducted a study in which they identified all youth whose parole was revoked during that period (using the OBITS database) and merged it with data of DDMS actions (drawn from the WIN database). In this comparison, they were able to determine that no parole violator showed additional time as a DDMS outcome. See electronic documents titled Merged PV Roster to WIN DDMS_10142010.xls and Email exchange re DDMS study 10-2010.docx; also informal communications with Defendants to learn methodology and interpret codes 85 Revocation Extension, Apr. 1 through Sept. 30, 2010 86 See, e.g., Revocation Extension Open Case Summary run on each of Jun. 25, Jul. 8, and Nov. 3, 2010. These do not capture the timeliness of steps preceding the steps reflected on the report, but there are so few open cases at any time that this absence is de minimis. 87 DJJ Rev. Extension Cases Closed, each of Apr. through Sept. 2010 88 Source for this paragraph is informal communications with parties
58

 
 Case 2:06-cv-02042-LKK -GGH Document 635 Filed 06/21/11 Page 1 of 56

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

L.H, et al., Plaintiffs,
vs. EDMUND G. BROWN, JR., et al.,
Defendants. _____________________________________/

NO.CIV.S-06-2042 LKK/GGH

SIXTH REPORT OF THE SPECIAL MASTER ON THE STATUS OF
CONDITIONS OF THE STIPULATED ORDER
Background In orders dated September 19, 2007 and January 29, 2008, this Court found that California's juvenile parole revocation system violated juvenile parolees’ due process rights, the Americans with Disabilities Act (ADA), and the Rehabilitation Act. The Court approved a Stipulation and Order for Permanent Injunctive Relief on October 7, 2008 (hereafter “Stipulated Injunction”), which sets forth detailed requirements for attorney representation, revocation system procedures, effective communication and reasonable accommodations, and consideration of alternatives to incarceration. During implementation, stipulated orders have been entered concerning Plaintiffs’
1

Case 2:06-cv-02042-LKK -GGH Document 635 Filed 06/21/11 Page 2 of 56
monitoring, the tracking of parolees with disabilities and effective communication needs, policies and procedures, and the revocation extension penalty matrix.
Chase Riveland was appointed as Special Master on May 22, 2008. Virginia Morrison assumed the role of Special Master, and Patricia Gray was appointed Deputy Special Master, effective June 1, 2010. The Mastership has submitted five reports during that time, and offers this sixth report assessing progress toward providing due process and complying with this Court’s orders.
Special Master Activities During this Round, the Special Master’s team assisted in the parties’ negotiations regarding monitoring and standards and criteria for compliance, and mediated issues concerning alternatives to incarceration. The Mastership interviewed headquarters staff, parole agents, attorneys, and parolees. The team observed hearings at Preston Youth Correctional Facility; NA Chaderjian Youth Correctional Facility; Southern Youth Correctional Reception Center and Clinic; Watts Parole Unit; West County Detention Center; and in the jails of Marin, San Francisco and Los Angeles counties. The team monitored a total of 41 hearings conducted by 6 hearing officers. This included 9 probable cause hearings observed in person statewide. The team observed the service of notice on two parolees in county jails,1 routine meetings of Defendants’ task force, and training for the Board’s staff and parole agents. In addition, the Mastership team analyzed 24 revocation hearings, 3 revocation extension hearings, and 5 not-in-custody revocation matters by recorded and written
2

Case 2:06-cv-02042-LKK -GGH Document 635 Filed 06/21/11 Page 3 of 56
materials. The team also examined the 2 Decision Review matters and the orders for an additional 43 probable cause hearings.
Scope and Approach This report discusses observations and activities spanning November 2010 through April 2011, collectively referred to as “the Round.” Data includes that which became available during the Round, typically from October 2010 through April 2011. References to the Special Master’s activities frequently include the actions of a member of her team. For some requirements, the Special Master’s team conducted studies based on revocation packets, hearing documents, and recordings provided in Defendants’ monthly document productions, in combination with those same documents produced for the hearings observed during the team’s site visits. For other requirements, the team studied records selected from the relevant population as identified by electronic reports. In other instances, the team relied on reports generated by Defendants’ revocation database; Plaintiffs’ monitoring summaries; and analyses, reports, or studies conducted by the CalPAP attorney panel administration, and sometimes documents underlying these sources. This report is structured according to the following format:  Brief comment on the current legislative environment within which this
lawsuit is operating  Summary of the requirements on which the parties concentrated their efforts
during the Round  Brief summary of the most problematic practices identified during the Round
by the Special Master  Areas of substantial compliance
3

Case 2:06-cv-02042-LKK -GGH Document 635 Filed 06/21/11 Page 4 of 56
 Analysis of compliance with each of the Stipulated Injunction requirements not previously found to be in substantial compliance
 Summary and Recommendations for further orders
The Environment Assembly Bill 1628 went into effect during the Round; it reduces and ultimately will eliminate supervision of juvenile parolees by the State.2 By its terms, juveniles on parole before January 19, 2011 will continue to be supervised by the State and subject to revocation by the Juvenile Parole Board.3 Those released from Division of Juvenile Justice facilities for the first time from January 19, 2011 forward are being discharged to the counties for supervision. Because the existing parolees’ supervision terms will expire and no new parolees will be coming into the system, the parties anticipate that parole supervision by the State will end significantly before July 2014, the maximum date set by this law. On the theory that procedures will remain unchanged for the current LH class, and that the legislation changes terms only for those who have not been on parole and are therefore not in the class, limited implementation plans have been shared with the Mastership and Plaintiffs; Plaintiffs would very much like more information to enable determining that the rights of class members are, in fact, being protected. In 2011, two additional legislative and policy changes will greatly affect parole supervision, parole revocation, and juvenile incarceration. The passage of Assembly Bill 109 substantially realigns major functions in adult and juvenile corrections and parole, including transferring large populations to be handled by county probation and courts. It appears that this law affects the context in which LH operates, but does not affect juvenile parole supervision or revocation directly. Although passed, implementation of this law is
4

Case 2:06-cv-02042-LKK -GGH Document 635 Filed 06/21/11 Page 5 of 56
also contingent upon funding being provided. As of this writing, the Mastership is informed that a decision has also been made –
separate from Assembly Bill 109 -- to transfer the remaining juvenile parole supervision operations to be subsumed by the adult parole division. The impact could range from transferring the LH system and staffing intact to merging operations into Valdivia and eliminating any separate juvenile procedures altogether. The Division of Juvenile Justice is strongly committed to maintaining the existing L.H. processes and is negotiating toward that end. Negotiation of the terms and implementation dates is underway within the State and the transfer reportedly must occur within fiscal year 2011-2012. Therefore, details of implementation, and any response by Plaintiffs’ counsel, are not yet available.
Areas of Party Emphasis During this Round, the parties concentrated their efforts on these activities:  Defining appropriate information-sharing concerning alternatives to incarceration  Monitoring the LH systems, particularly site visits and document reviews by Plaintiffs  Defining the standards and criteria by which Defendants will internally assess the revocation steps  Employing the annual policy revision process to incorporate the LH policy changes that occurred during the year  Moving regulation revisions through the comment and approval process  Annual training for Board and Parole division staff, including emphasis on some LH topics that need improvement  Information system improvements  Revising the Parolee Handbook so that parolees are better informed about the revocation process
5

Case 2:06-cv-02042-LKK -GGH Document 635 Filed 06/21/11 Page 6 of 56
Issues Requiring the Greatest Attention in the Next Round The Special Master encourages Defendants to treat the following practices as the highest priorities for improvement in the coming Round:
 Assessing ADA and effective communication needs in notice service and hearings; adjusting communication with parolees who have cognitive limitations; and demonstrating that specific accommodations are provided when needed
 Completeness and accuracy of disability forms (“3.260s”)  Providing evidence with the revocation packet, or as soon after discovery as
possible, and no later than two days before the hearing in which it will be introduced
 Determination of probable cause to continue to detain during probable cause hearings
 Increased clarity in following the law when determining whether hearsay can be used as evidence
 Practices that can impact impressions of fairness and neutrality  Accuracy and completeness of hearing orders
These issues will be discussed in detail, infra. In most instances, there is a high percentage of deficiency for these items. Additionally, there are single, or small scale, occurrences of a variety of very problematic practices, such as:
 A revocation packet was transmitted 10 days late  Three postponed probable cause hearings took more than a week to be
rescheduled
 One case came to the Special Master’s attention in which there was no probable cause on two of the charges;4 this was not identified at any of Defendants’ revocation or review steps
 A revocation hearing was two weeks late after a postponement because the State had not subpoenaed key witnesses
 A successful appeal took three weeks to be reheard
6

Case 2:06-cv-02042-LKK -GGH Document 635 Filed 06/21/11 Page 7 of 56
 Two revocation extensions were not initiated for four to six months after discovery of the conduct at issue
 Most of these cases apparently were not identified and discussed in the State’s oversight processes
While it is positive that these issues did not appear to occur on a larger scale, when a system contains this variety of practices that injure due process, occurring across a range of offices and revocation steps, it suggests that the system has not yet stabilized and is not controlling for due process at the level needed for functioning without Court oversight. As Defendants continue to make improvements to both staff practices and oversight, the Mastership is hopeful that they will overcome these issues as well.
Finally, among the policy and practice issues the parties have identified as disputed, there remain important due process issues. These must be resolved for due process to be protected and this Court’s orders satisfied.
Substantial Compliance Defendants continue to sustain the systems they have implemented; there is additional improvement and almost no backsliding on prior accomplishments is apparent. Many of the requirements of the Stipulated Injunction involve timeframes as well as other practices to effect due process. While timeliness is not a stand-alone requirement, and thus cannot be found in substantial compliance, its extraordinary level bears comment. Continued improvement in Defendants’ ability to capture and report reliable data on point gives, for the first time, an ability to present a complete picture of the timeliness of the revocation steps.
7

Case 2:06-cv-02042-LKK -GGH Document 635 Filed 06/21/11 Page 8 of 56

By this Round, Defendants have accomplished the following in terms of timeliness:

Parole agent/supervisor conference about probable cause Service of notice of rights and charges Violation report Unit Supervisor review Attorney appointment Return to Custody Assessment Probable cause hearing Revocation hearing

99%

5 cases late

99% 92% 99% 99% 99.7-100%5 98% 96%

2 cases late
2 cases late 1 case late 4 cases late 2 cases late

Further detail about timeliness, as well as an assessment of the other criteria for those requirements to reach substantial compliance, are discussed infra.
To the extent that a Stipulated Injunction requirement has been conducted well for a sustained period, the Mastership will consider that requirement to be in substantial compliance. In some institutional litigation, “substantial compliance” has been used as an umbrella term for ultimate success. The LH Defendants argue that it should be the standard for relief from judgment in this case; Plaintiffs strongly contest that substantial compliance should serve as that standard.
As used in this report, substantial compliance indicates a sustained period of meeting a high standard. Substantially compliant items will remain within the Stipulated Injunction, but the Special Master and Plaintiffs will discontinue review of such items unless and until a significant decline in performance surfaces. Defendants are expected to continue to review these items at regular intervals to prevent such a decline.
The Special Master considers the following requirements to be in substantial compliance on the following bases.

8

Case 2:06-cv-02042-LKK -GGH Document 635 Filed 06/21/11 Page 9 of 56
Current Round: Notice of terms (¶ 11): As required, soon after entry of the Stipulated Injunction,
Defendants posted notice of the material terms of the settlement on their website and in Division of Juvenile Justice institutional living units and libraries.6 Monitors have observed posters onsite long-term.
Most parolees interviewed by the Special Master are familiar with LH and the rights it affords. Although not specifically required, in a similar vein, Defendants recently updated the Parolee Handbook to increase parolee information about the revocation process.7 This requirement can be considered in substantial compliance.
Waivers and continuances (¶31): The Stipulated Injunction provides that parolees who wish to “waive the right to, or seek a continuance of, a timely Probable Cause Hearing and/or a Parole Revocation Hearing may elect to do so.” Printouts demonstrate that parolees do exercise this right.8 To the Special Master’s knowledge, policies do not operate to inhibit this right. No objections on this basis, nor any other complaint of denial of this right, have ever come to the Special Master’s attention. CalPAP confirms that waivers are routinely granted without obstacle. This requirement can be considered in substantial compliance.
Hearing recordings (¶42): Defendants must provide an audible copy of the recording of the parole revocation hearing within 10 business days of receiving a written request. If the parolee is appealing the hearing result and the recording is inaudible, he shall be entitled to a new hearing scheduled as soon as practically possible. Defendants provide documents monthly that list the recording requests received and the dates provided; nearly all appear to have been in compliance with these provisions for two
9

Case 2:06-cv-02042-LKK -GGH Document 635 Filed 06/21/11 Page 10 of 56
years. Most recently, Defendants document six requests in the Round; all reportedly were filled well ahead of the two weeks allowed.9 Over time, two requested recordings failed and reportedly rehearings were provided.10 No failures to fulfill these requirements have ever come to the Special Master’s attention. This can be considered in substantial compliance.
Revocation extension representation (¶35): The Stipulated Injunction provides that youth shall be represented by counsel in revocation extension proceedings. CalPAP data indicate that this has routinely taken place for at least two years.11 The Special Master has never learned of any failure to appoint counsel in this situation. This requirement can be considered in substantial compliance.
In previous Rounds, this Court has found the following requirements to be in substantial compliance. Defendants and CalPAP maintained these requirements at or above prior levels with one exception.12
 Timely appointment of counsel (¶ 16)  At the time of attorney appointment, provision of a copy of all the evidence on
which the State intends to rely or which may be exculpatory; evidence not provided with at least two days’ notice shall be excluded unless the state shows good cause (¶ 16, 19)  Attorney will be informed of Return to Custody Assessment by the 10th business day after the hold (¶ 30)  Adequate time for representation; reasonable access to clients and files; confidential phone calls and space in which to meet; observing staff cannot participate in proceedings (¶ 20, 23)  Not accepting waivers of hearing rights or the right to counsel made prior to the juvenile parolee meeting with counsel; waivers of hearings and requests for continuance must be made in writing in the presence of counsel (¶ 17, 31)
10

Case 2:06-cv-02042-LKK -GGH Document 635 Filed 06/21/11 Page 11 of 56
 Not in custody hearings within 60 days after service and with all due process and ADA protections (¶ 45)
 Revocation may be extended only after a revocation extension hearing (no timeadds or DDMS time extensions) (¶ 35)
 Provision of counsel during revocation proceedings (¶ 15)13  At the time of attorney appointment, provision of date, time, and location of the
hearing (¶ 16)  Defendants shall take all reasonable steps to allow counsel to meet with clients at
least 24 hours prior to the probable cause hearing (¶ 16)  State-appointed counsel for juvenile parolees shall be appropriately compensated
for hearings and appeals (¶ 24)  Defendants shall develop standards, guidelines, and training for effective
assistance of state-appointed counsel (¶ 21)  Parole revocation hearings to be held within a 50-mile radius of the alleged
violation (¶ 36)
During the Round, there was a surprising increase, to 6, of objections on the basis that the State was attempting to introduce evidence that had not been provided to defense counsel. Hearing officers appropriately ruled according to policy, so late-produced evidence did not affect the proceedings; nevertheless, for fundamental fairness, it will be important for the Parole division to resume its earlier level of conscientiousness in providing evidence more timely.14
Stipulated Injunction Requirements
The Stipulated Injunction requires a variety of practice changes and a system of revocation steps in which due process must be delivered according to specified timelines. The status of implementing these requirements will be discussed in this section.
Defendants initiated only 430 revocation actions during the seven-month Round,
11

Case 2:06-cv-02042-LKK -GGH Document 635 Filed 06/21/11 Page 12 of 56
continuing the pattern of reductions of recent years. When Defendants began full implementation in early 2009, there were nearly 100 actions per month; during this Round, there were an average of 61 actions per month. It is unclear, however, whether this reflects the reducing class occasioned by Assembly Bill 1628. It initially appeared so, since initiated actions diminished each month of the Round, but then they spiked substantially in February and March before falling again in the most recent month.15
Defendants continue to resolve one-third of these actions before proceeding to any hearing. It appears that those parolees are continued on parole within two weeks of the cases being initiated, and reportedly are given programming and/or additional structure when returned to their communities.16
Previous reports of the Special Master have detailed the difficulty Defendants have had in demonstrating the timeliness aspects of the Stipulated Injunction requirements because of information system issues. Defendants effectively improved their ability to demonstrate timeliness numbers during this Round. As a result, the Mastership feels confident in reporting compliance rates for most requirements, as detailed below.
Policies and Regulations The Stipulated Injunction requires sufficiently specific draft policies, procedures, and plans to (a) ensure that revocation proceedings are in continuous compliance with all of the requirements of the Constitution and applicable statutes, (b) address a method for accurately tracking the timeliness of hearings and other steps in the parole revocation process, (c) include the timely provision of accommodations for juvenile parolees’ disabilities and effective communication needs, (d) provide for not in custody hearings, dual commitments, and parole exit meetings; and, (e) address such disputed issues as
12

Case 2:06-cv-02042-LKK -GGH Document 635 Filed 06/21/11 Page 13 of 56
telephonic probable cause hearings, circumstances constituting good cause for delayed hearings, and remedies for untimely hearings.
The parties negotiated, and Defendants have had in place, policies covering most of the required elements long-term. The agreed policies went forward while a substantial number of disputed items remain, including those named in the Stipulated Injunction. The parties did not maintain the rigorous approach to resolving these that had been initiated in the Fourth Round.
During the Round, the major policy effort concentrated on incorporating the policy developments of the year into an annual revision of all LH policies. Further policy work was limited. A decision review policy was distributed early in the Round, and negotiations were finalized on a policy governing mentally ill parolees too decompensated to participate in revocation proceedings, although that policy has not yet been distributed.
Regulations: The parties worked on revisions to relevant regulations and they were published by the Office of Administrative Law in September 2010. Plaintiffs provided comments during the initial public comment period and most recently in March 2011; Defendants currently are reviewing the latter.17 Reportedly, after Defendants’ review period, there is a final Office of Administrative Law review period of 30 days and then the regulations will be filed with the Secretary of State.18
Parole Agent and Supervising Parole Agent conference within two business days (¶ 27):
Nature of the practice: Plaintiffs express concern that they do not know the extent of the information and conversation on which this decision is based, and whether the
13

Case 2:06-cv-02042-LKK -GGH Document 635 Filed 06/21/11 Page 14 of 56
standards are being applied correctly. The parties reached agreement during the Round about a means by which this decision will be documented. These practices are to be implemented in the future and have not yet been monitored by either party or the Special Master.
Timeliness: Defendants’ database shows 99% of cases continue to be timely at this step, an extraordinary level. At most, only five cases were late and most were completed the following day.19
Notice of charges and rights within three business days (¶ 28): Nature of the practice To satisfy due process standards, the notice must contain a summary of the conduct underlying the charges sufficient for the parolee to prepare a defense. Defendants provided training on point during the Round and supervisors reportedly have been encouraged to emphasize the substance of charge reports during their reviews.20 The Special Master analyzed more than one-third of the notices of charges prepared during the Round. The summaries improved, so that 88% met expectations, and most of those were very well done.21 The Oakland parole unit was particularly skilled in this area; it continues to be the case that the Bakersfield and Watts parole units have the most work to do to improve. The Special Master appreciates the Defendants’ work to date to improve these documents, and encourages them to continue this effort in order to communicate fairly with parolees and to reach compliance with LH requirements.
14

Case 2:06-cv-02042-LKK -GGH Document 635 Filed 06/21/11 Page 15 of 56
Due process, of course, can also be carried out or frustrated by the methods used when serving notice and explaining rights and charges. The Mastership and Plaintiffs were only able to observe a limited number of these interactions during the Round.22
Observed service generally was conducted in appropriate spaces, though occasionally jail staff remained nearby gratuitously. Plaintiffs continue to be concerned that service occurs in a private setting – a condition Defendants dispute is required – where accommodations can be provided if necessary, and by occasional parolee reports that service was perfunctory.23 Additionally, one jail required an agent to serve a parolee by “video conference” – which may have been phone contact without video -- within the jail, and intended to require that procedure ongoing. This included having to entrust the service documents to jail staff for later delivery; the parolee alleges he did not receive them. Staff report taking steps to ameliorate this during the service, but it is highly unusual and contains many drawbacks.24
All observed parole agents had reviewed files before the notice to identify disabilities and covered the essential disability-related questions with the parolees. Several parolees had limited ability to understand and/or language issues. Most agents managed this well, simplifying terms, taking extra time, and stopping periodically to check understanding. Several used practices that, though apparently well-intentioned, appeared to be steering parolees away from, or could serve as a disincentive to, asking for help. One agent was creative about arranging for an interpreter and brought translated forms; one took care to rule out the need for an interpreter, while another, who did not know the parolee, merely accepted a “no” answer and made no adjustments to assess
15

Case 2:06-cv-02042-LKK -GGH Document 635 Filed 06/21/11 Page 16 of 56
understanding, speaking rapidly throughout. While ultimately it appeared that all of these parolees did understand, these are unnecessary risks to take.
All but one agent went over the rights in detail. All covered the charges and these charge reports were informative. Agents commonly take extra care in the sections of the disability form where the parolee has choices, and in the acknowledgement form – going through each choice one by one – to ensure understanding. All observed agents distributed ADA grievance forms.
On balance, these agents served parolees well, with an appreciation of the need to ensure understanding and support knowing choices. Each agent was respectful and worked in partnership with the parolee and none aggressively investigated the cases. The area that needs work is a greater recognition of practices that, despite the intention of creating understanding, actually undermine it.
Timeliness According to CalPAP’s and Defendants’ records, 99% of service was completed timely. There were only 2 late cases in six months; these were initiated timely but encountered a barrier, and were completed in one to two additional days.25 It was rare for service to be initially unsuccessful. These occurred because of lockdown, parolee court date, parolee transfer, and quarantine. Some were completed by the deadline nevertheless.26 The timeliness of open cases was consistent with the foregoing rate.27 These numbers show continued improvement and are exceptional.
16

Case 2:06-cv-02042-LKK -GGH Document 635 Filed 06/21/11 Page 17 of 56
Not accepting written admissions to a violation of parole made prior to the juvenile parolee meeting with counsel (¶ 17):
Defendants assert that they have ceased the routine practice of asking parolees to sign written admission forms. The Special Master has not encountered these forms in more than 200 revocation packets reviewed since 2009, and none has been identified by monitors.
Plaintiffs’ monitoring discusses three cases in which charges were added based on information learned during service of notice of rights and charges or the parole agent’s investigation.28 The Special Master observed a notice where the conversation both elicited potentially incriminating information and, when the parolee mentioned exculpatory information, the parole agent followed up and developed that. The parties disagree as to whether these practices violate this provision of the Stipulated Injunction.
Violation report within six business days (Exh. A): Nature of the practice: Whether the content of violation reports satisfies due process has not yet been monitored by either party or the Special Master. The parties dispute whether this step is a requirement of the Stipulated Injunction.29 Timeliness: The Mastership studied the timeliness of 37% of the violation reports generated; 92% met the timeframe requirement, and all but one were completed by the following day.30 Since the next revocation step showed a near-perfect timeliness rate, it does not appear that late violation reports caused delays in information provided to attorneys or late hearings. This is very good performance on timeliness.
17

Case 2:06-cv-02042-LKK -GGH Document 635 Filed 06/21/11 Page 18 of 56
Supervising Parole Agent review of packet within seven business days (Exh. A):
Nature of the practice: Neither party nor the Mastership has assessed Supervising Parole Agents’ practices when reviewing the revocation packet for probable cause and for completeness. On the same basis as with the violation report, the parties dispute whether this step is a requirement of the Stipulated Injunction.
Timeliness: It appears that this function was also completed timely at the exceptional rate of 99%.31 Only three cases were late and they were completed within one to two additional days. Open cases appeared consistent with this analysis.
Requirements concerning attorney representation At the time of attorney appointment, provision of relevant educational, mental
health and disability identification and source documents (¶ 16): Defendants use a summary form, negotiated by the parties, to provide educational,
mental health, and disability information to attorneys and those making use of the field files. A dispute remains about what is sufficient to satisfy the requirement to provide source documents.
Right to be represented by counsel of choice; process for timely notifying the counsel of record of the imposition of a parole hold (¶ 18):
Defendants have in place a system to notify counsel of record. Previously, this system operated consistently but with significant deficiencies in timeliness. Neither the parties nor the Special Master’s team conducted a review during this Round. Reportedly,
18

Case 2:06-cv-02042-LKK -GGH Document 635 Filed 06/21/11 Page 19 of 56
no attorneys outside of CalPAP represented youth in the revocation proceedings during the Round.32
Return to custody assessment within nine business days (¶ 29): Nature of practice: The Special Master was unable to observe hearing officer practice in assessing at this stage probable cause and the need for continued detention. Timeliness: Timeliness was extraordinary. Only one case was late, and it appears that it was completed on the day the revocation packet arrived.33
Probable cause hearing requirements Expedited probable cause hearings (¶ 26): There have been no requests for expedited probable cause hearings in any Round to date.34
Probable cause hearings within 13 business days after the hold is placed, including written bases for findings (¶ 32, 40):
Nature of Hearings The Mastership had the opportunity to review nine probable cause hearings conducted by four hearing officers statewide during the Round.35 In several respects, the Defendants have improved their skills. Most notably, there was important improvement in detailing the factual basis for findings. The areas of greatest concern were:  ADA interactive interviews, although somewhat improved due to focused training, are still falling short of effectively assessing mental health, communication, and ability to answer to charges  Assessing probable cause to detain pending the revocation hearing  Quality and completeness of Board Orders
19

Case 2:06-cv-02042-LKK -GGH Document 635 Filed 06/21/11 Page 20 of 56
As there are similar routines, strengths, and weaknesses in the practice of probable cause and revocation hearings,36 most aspects will be discussed in the revocation hearings section. A few issues unique to probable cause hearings follow.
Most hearing officers have become adept at reciting ADA questions, rights, and the appellate process from memory. Perhaps because of that comfort, delivery can become rapid, damaging actual communication. In some cases, nevertheless, no mention of appellate rights was made during the entire proceeding. Additionally, by this Round, some hearing officers had also gotten away from clearly indicating that parolees have a right to a revocation hearing. Plaintiffs and the Mastership raised this after monitoring tours, and Defendants were responsive in revising the hearing template to ensure that this right is express. Hearings subsequently observed have resumed this good practice.
As to findings, the Mastership observed hearing officers appropriately dismissing all or some of the charges when the evidence at the hearing did not support probable cause.37 There was tremendous improvement in citing the evidence that supports a probable cause finding, with only a handful of charges, among hundreds, that could use more detail.38 Defendants should continue to address rare occasions in which hearing officers continue to simply point to the source document, such as a police report or violation report. Citing a general document continues to weaken the process. The parolee is entitled to, and any appellate reviewer requires, the facts the hearing officer is relying upon to make his or her decision. This belongs in the written orders, a lesson Defendants have widely adopted.
Defendants are far less successful in assessing whether there is probable cause to continue to hold parolees in custody pending revocation hearing. In the Mastership’s very
20

Case 2:06-cv-02042-LKK -GGH Document 635 Filed 06/21/11 Page 21 of 56
large sample, only 28% of relevant hearing records reflected this assessment and provided a reason. It was not uncommon to assert the finding without giving support, and half of the cases did not discuss probable cause to detain at all.39 This percentage is far too low and should be improved.40
In general, Defendants work to provide written hearing records immediately to parolees and counsel, principally running into barriers only at some county jails. Although much improved in terms of connectivity, in three out of nine hearings the Special Master’s team observed, staff did not have access to a printer or online service in the hearings, which prevented them from providing copies of the hearing orders to the parolee and attorney at the close of the hearings. In those instances, staff and the attorney described the follow-up methods that would be employed to provide the record to the parolee; in some cases, this reportedly occurred immediately following the hearing.
CalPAP reports show only 14 occasions on which orders were not immediately provided, or 4% of hearings in the Round.41 Many of these orders were provided the same or the next day, while one-third of them took two to four days to provide.42 As there is no timing requirement associated with providing a written record, either in this lawsuit or in Morrissey, this is reasonable practice. Maintaining a similar level of timeliness will be important, both as a matter of the parolee’s rights and so that any contemplated appeals are not delayed.
Timeliness Based on more complete and reliable reports, the timeliness of probable cause hearings continued to improve to an impressive 98% when the entire population is taken
21

Case 2:06-cv-02042-LKK -GGH Document 635 Filed 06/21/11 Page 22 of 56
into account.43 Mainstream cases were all timely. Open cases and CalPAP data show slight variations, but are consistent with these numbers.44 Only one extradition case was late, although it was quite extended, apparently by a previous process step, and the probable cause hearing was eight days late. All time waivers were brought back to calendar within the time waived.
Postponements affected 5% of the probable cause hearings. About one-third of these were because the parolee could not attend a not-in-custody hearing; refused attendance; or, in one case, his attorney was unavailable. In this Round, the State’s nine postponements occurred only when the parolee was out to court or not transported;45 one additional case was rescheduled by the State’s decision review process.
There was significant improvement in the timely rescheduling of probable cause hearing postponements. About half were back on calendar in a few days. Three cases exceeded one week to re-calendar, with 9 days being the longest time. While Defendants should continue to strive to reschedule probable cause hearings as soon as possible, Defendants are to be commended for these improvements. Both the number of parolees waiting long periods for a hearing, and the length of time they waited, were greatly reduced.
Optional waivers: An additional set of cases is concluded at “optional waiver review,” a proceeding equivalent to probable cause hearings. Some parolees choose to defer revocation proceedings until the handling of concurrent criminal charges is complete; should they resume revocation proceedings, the first step is the optional waiver review. In the Special Master’s observations, optional waiver reviews are conducted
22

Case 2:06-cv-02042-LKK -GGH Document 635 Filed 06/21/11 Page 23 of 56
consistent with probable cause hearings, with a determination of probable cause for the charges and negotiating about a possible outcome.
Data indicates that about 15% of all cases reaching the probable cause step have an optional waiver review.46 Where there was an optional waiver review that was not continued, all were completed in a reasonable time.47 Those with an additional time waiver were completed within the time waived. Two cases were subject to postponement; one was rescheduled quickly and it appears the attorney’s schedule impacted the rescheduling of the second.48 There is excellent timeliness at this step.
Definition of presumed prejudice (¶ 32): Defendants assert that the parties negotiated one definition to be used for both types of hearings, while Plaintiffs indicate that a definition applying to probable cause hearings remains to be developed. This remained unchanged during the Round.
Mechanical restraints at hearings (¶ 46): The Stipulated Injunction requires Defendants to develop policies, procedures,
and training concerning restraints that are consistent with the ADA, the Rehabilitation Act, due process standards, and Title 15 California Code of Regulations section 4034.4. The Stipulated Injunction prohibits any policy requiring universal use of restraints in revocation proceedings. Defendants did distribute a policy and has held related training.
The Special Master’s team observed restraints practices onsite and in hearing records, and interviewed staff concerning them. Among 41 cases reviewed, 13 parolees were restrained. Additional training on this issue seems to have impacted the consideration of using mechanical restraints, and helped to highlight the reasoning
23

Case 2:06-cv-02042-LKK -GGH Document 635 Filed 06/21/11 Page 24 of 56
invoked when considering the appropriateness of restraints during a hearing. There was also marked improvement in recording restraints and the basis for it.
Defendants’ staff exercised discretion to restrain 5 parolees in the cases reviewed by the Mastership. In each, Defendants made an individualized judgment about the likelihood of violence based on recent behavior, as required. Plaintiffs object to determinations made on the basis of the violations charged. The agreed standard is that the parolee “present[s] a reasonable likelihood that he/she may become violent or attempt to escape. Such conditions may include behavior while on parole or violent behavior during the period of incarceration for this alleged parole violation.” Since the alleged violations are “behavior while on parole,” it appears likely that this is a legitimate basis. Plaintiffs also advocate for a “totality of the circumstances” assessment rather than any single factor being determinative.
Eight parolees in the Special Master’s study were restrained in deference to county jail policy. Plaintiffs strenuously object to this deference where the policies require universal use of restraints,49 contrary to the terms of the Stipulated Injunction. Defendants assert that they have no control over these agencies. Los Angeles County Jail’s routine practice of restraining prisoners to furniture and the floor is particularly objectionable and is counter to the parties’ stipulation and order entered in September 2009. The parties agreed in 2009 to approach the jail to address this but it appears this has not been undertaken. In the Mastership’s study, the majority of parolees who were restrained at hearings were in county jail facilities and hearing officers typically overruled restraints objections.
24

Case 2:06-cv-02042-LKK -GGH Document 635 Filed 06/21/11 Page 25 of 56
There is a particular requirement in the Stipulated Injunction concerning pregnant parolees; the Special Master does not have current information on point as no such cases came to her attention.
Requirements related to revocation hearings: Final revocation hearing on or before 35 calendar days after the parole hold is placed (¶ 33):
In assessing this requirement, there are a number of considerations. The system must consistently provide timely hearings in the usual course of revocation proceedings. It must also function to provide hearings timely to special populations, sometimes small groups whose circumstances dictate counting timelines differently or suspending and resuming proceedings once conditions have been met. In operation, the hearings must provide due process, satisfying questions such as fairness, opportunity to be heard, elements of the violation proved sufficient for the applicable standard, and consideration of appropriate sanctions. In this Round, the Mastership analyzed 29 revocation hearings – 60% of those conducted – including five that were conducted “not in custody.”
Nature of Hearings It is longstanding standard practice for hearing officers to begin all types of hearings with queries about accommodation needs, mental health, education level, and cognitive status; advisement of parolee rights; and orientation to the hearing process. Several of these practices have been strengthened by practice and advanced training during this Round.
25

Case 2:06-cv-02042-LKK -GGH Document 635 Filed 06/21/11 Page 26 of 56
The ADA interviews during this Round were much improved in their execution as observed in many of the hearings audited by the Mastership. Where they fail, however, they continue to be one of the least effective aspects of the hearings because of rapid speech obscuring meaning, closed questions conveying that they to wish to rule out conditions, neglecting to follow up indicia of need, and what appear to be assumptions that what hearing officers are saying is being understood when there is an affirmative response. For more detail, see discussion of ADA identification and accommodation, infra.
Due process is at risk when there is failure to properly assess physical and mental health issues, to establish effective communication before the hearing proceeds, and to maintain that process throughout the proceeding. If any of these is in question, or if a necessary accommodation is overlooked, the important nature of the proceeding may be lost on the persons whose liberty is at stake. It is akin to not having them there at all if they do not understand or cannot access the information being presented.
Similarly, the Mastership and Plaintiffs continue to observe procedural rights still being read too quickly, or hearing officers using compound questions, decreasing the likelihood that parolees will understand, or worse, be intimidated by the rapid delivery and complicated terminology sometimes used.
In one hearing, for example, the hearing officer conducted a seriously truncated ADA assessment, did not advise the parolee of his rights, took a plea, and sentenced the parolee in four minutes. Although this parolee was accepting a previous offer and a full hearing was unnecessary, it was incumbent on the hearing officer to assure that the parolee understood and was knowingly waiving his rights, which cannot be done in this
26

Case 2:06-cv-02042-LKK -GGH Document 635 Filed 06/21/11 Page 27 of 56
cursory fashion. The possibility for informed understanding of the process, let alone protecting the liberty of a juvenile, is put in jeopardy when so much is quartered into such a small package. The order recounted much more than what occurred on the record and that leaves the Board open for other criticism, as well.
Hearing officers should guard against giving the impression that they are assigning the duty of ensuring due process to the defense during the proceeding, which continues to happen in some hearings. It is the duty of the hearing officer to maintain fair and ethical practice in the hearing room, and that duty is not transferable to the attorneys, although it can be shared; it would be better practice to make this intention more express.
The majority of hearing officers manage other procedural protections well, such as ensuring that charges are named and the foundation laid, taking pleas, inviting narrative testimony and cross-examination, and preserving distinct phases for fact-finding and disposition. It appears there has been an increase in recent months of the State attempting to put on evidence that it had not provided to defense counsel. The Parole division will want to address this practice; hearing officers appropriately did not admit such evidence.50 There are also occasions when hearing officers dismiss charges when the State’s evidence is incomplete or the charges are otherwise vague and cumulative. During this Round, for example, the Mastership monitored nine matters where cases or individual charges were dismissed at the hearing for insufficient evidence, lack of witness testimony, redundancy in charging, and lack of jurisdiction. Data indicates this occurred in 20 cases during the Round.51
There remain issues of due process that require attention. Some hearing officers appropriately require corroborating evidence in conjunction with an admission, but this is
27

Case 2:06-cv-02042-LKK -GGH Document 635 Filed 06/21/11 Page 28 of 56
not done universally. Due process calls for authorities to assess whether individuals who waive important rights do so knowingly and voluntarily; hearing officers commonly do so with optional waivers and need to add this practice when parolees make admissions.
As to other issues, in one case, when the state did not present any admissible evidence to support revocation, it was inappropriate for the hearing officer to appear to shift the burden to the defense. In another, there was a pending objection concerning whether physical evidence was admissible; the hearing officer examined the evidence before that question had been resolved.
Overall, hearing officers appropriately limit their inquiry and decisionmaking to the record and testimony. In this Round, as in others, however, on occasion they reach outside to the on-duty hearing officer, legal counsel, or other staff for advice and direction during a hearing, a practice to which Plaintiffs strenuously object.
Although it has been recommended that the hearing process remain transparent, there remains an inclination to clear the room and telephone the officer on-duty to sort out a legal or policy question and make a decision. Procedural due process risks are inherent when a hearing officer seeks advice from a person who is not present, recites the facts to him or her, and then relies on the third party’s feedback in formulating decisions that impact a parolee’s personal liberty, all outside the presence of the accused and his or her counsel. Consistent with fair hearing practice, the Mastership would prefer to see complete transparency when hearing officers seek outside opinions during a hearing.
An additional, continuing and problematic practice is that, unfortunately, it appears that decisions are sometimes made based upon information that has not been proffered in the hearing as part of the hearing record. This has an unfair impact on the
28

Case 2:06-cv-02042-LKK -GGH Document 635 Filed 06/21/11 Page 29 of 56
process and poses a risk to due process and the integrity of the hearing. This is an area that would benefit greatly from interactive training.
The majority of hearing officers continue to approach disposition issues openly and with considerable deliberation. Undermining this good practice, however, was a minority of cases observed or audited in which hearing officers took matters into account that were uncharged, unproven, hypothetical, or otherwise unrelated to the charges before them. Sometimes it seemed that mitigating factors were not taken into account. The Mastership would encourage additional training and direction for hearing officers in these areas.
The treatment of proffered hearsay is a due process problem of substantial concern. Although Defendants offered further training during the Round, hearing officers continued to have difficulty applying the legal test required before admitting or excluding this potential evidence.
The Special Master reviewed the Board Orders and recordings in all confrontation rights objections occurring after the most recent refresher training. Only one of the oral and written orders applied the confrontation rights balancing test correctly, explicitly or implicitly.52 Admitting evidence that is unverifiable and therefore unreliable is unfairly prejudicial to a parolee, risking significant harm.
Benefit from the confrontation rights training was evident in that several of the factors, and the idea of balancing, were more commonly in use. However, there continued to be analyses that omitted a key factor. Frequently, no balancing was conducted, and occasionally, the test was not used at all. In a small number of cases,
29

Case 2:06-cv-02042-LKK -GGH Document 635 Filed 06/21/11 Page 30 of 56
hearing officers may not have recorded the confrontation rights objection.53 The rate of problematic handling is actually worse than before the recent training.
There is no indication that decision review corrected these errors of law. The appellate process gives mixed indications. While it does not appear that any of the cases the Special Master reviewed were appealed, two appeals predating the training came to the Special Master’s attention and involved confrontation rights objections. One reversed the decision on this basis, which is laudable. The other did not reflect an understanding of the test when it concluded that this ground for appeal was without merit because the hearing officer deferred ruling. Defendants note that there have been no appeals concerning confrontation rights since the December 2010 training.
Additionally, Defendants’ practice allowing the seriousness of charges and potential dangerousness of the parolee as reason enough to continue a matter when key State witnesses are absent – even when the witnesses were not subpoenaed and there is no known reason for nonappearance – is objectionable.54 Under ordinary practice, a hearing officer would apply the confrontation rights balancing test to that witness’ information, and the State would be required to make its case, with the information if it satisfied the balancing test, without it if it did not. Not honoring this principle compromises the appearance of neutrality for the hearing officer and revocation system alike.
Confrontation rights is a complex issue and it does not arise frequently enough for hearing officers to become proficient with it in the ordinary course of hearings. While this may be understandable, the risk of incarceration based on untrustworthy evidence – or of compromised public safety because excluded evidence after insufficient reasoning
30

Case 2:06-cv-02042-LKK -GGH Document 635 Filed 06/21/11 Page 31 of 56
leads to parolee release – is unreasonable and the costs are too high. Defendants must devote more to ensuring that hearing officers can handle this critical evidentiary matter consistent with due process.
Concerning consideration of alternatives to incarceration, Defendants offered training during the Round and improvement was evident. A minority of hearing officers, however, gave the impression they were operating by rote, or according to predetermined ideas, and not assessing the facts of the case before them. Where there is much more detail about consideration in the Board Order than the hearing itself, it can raise a question about whether that thinking occurred before or after the disposition decision.
More broadly, there continues to be difficulty with written records accurately and completely capturing aspects of the proceedings. In a review of records, the Mastership and Plaintiffs observed that objections and rulings were not always recorded; significant evidence or developments during the hearing were not included; evidence or positions were summarized incorrectly; orders could have internal inconsistencies; and the presence of participants, witnesses, and observers was not always included. Difficulties in the computer programming can cause additional inaccuracies concerning witness appearance, hearing officer identification, and postponements. In the very large sample of revocation hearing orders the Mastership analyzed, one-third were incomplete. On the other hand, reviewers noted improvement, particularly on the inclusion of objections and restraint orders. To the extent that an order does not accurately record the events in a hearing, it may substantially affect appellate due process rights, future parole conditions, and permanent records. It also hampers credible statistical data, effective training, and oversight.
31

Case 2:06-cv-02042-LKK -GGH Document 635 Filed 06/21/11 Page 32 of 56
A more universal understanding of due process itself, including the ways in which it applies to every aspect of the revocation process, may prove helpful to hearing officers, especially when the situation calls upon them to independently think through a fairness issue. The Defendants held specialized training midway through this Round and the Mastership is beginning to see improvement, especially in consideration of alternatives to incarceration and more detailed findings in support of decisions. Focused training on fundamental fairness in process and evidentiary interpretation is still a weak link and additional training would prove invaluable for hearing officers.
Timeliness To understand timeliness at this step, one must be able to assess:  Mainstream cases55 completed within 35 days  Mainstream cases pending and still within 35 days  Extradition cases completed according to the LH standards calculated from
arrival in California, rather than hold date  Activated optional waiver cases, completed within 35 days after receipt of
activation request  Activated optional waiver cases, pending within 35 days after receipt of
activation request  Hearings held while the parolee is not in custody and within 60 days after
notice service  Postponed revocation hearings reheard within the requested time or a
reasonable time  Postponed probable cause hearings and optional waivers that subsequently go
on to revocation hearing
32

Case 2:06-cv-02042-LKK -GGH Document 635 Filed 06/21/11 Page 33 of 56
Defendants’ data reporting capability continues to improve at this revocation step, as well, and they are now able to identify the above-described populations and indicate their times to hearing.56 There are impressive timeliness numbers across the board.
The frequency of revocation hearings dropped dramatically, from 11 per month in the previous Round to 7 per month in the instant Round, for a total of 47. Only two cases were clearly late57 and another is controversial. Periodic reviews of open cases showed a similar rate of timeliness.58 This is an extraordinary accomplishment.
During this Round, Defendants brought additional attention to ensuring that the hearings of special populations remained on time despite the need for special handling. Not in custody cases and activated optional waivers were all timely according to their adjusted timeframes.59 No extradition cases proceeded to revocation hearing.60
Time waiver cases were completed before the expiration of the time waived. Most postponements were at the parolee’s request and all were rescheduled within the two weeks required for subpoenas.61 The two exceptions involved one case where the State postponed to subpoena key witnesses who had not been subpoenaed and had no known reason for non-appearance – a step taken for reasons of public safety and one that all acknowledge does not qualify as good cause for postponement – and one rehearing ordered through decision review. These postponements, as well, were heard within an additional two weeks.62 This is a significant improvement from rescheduling times of the past.
Evidence on the same terms as the state (¶ 33): In observations and on hearing recordings, parolees generally put on evidence without obstacle. There are occasions when the parolee’s defense or mitigation relies in
33

Case 2:06-cv-02042-LKK -GGH Document 635 Filed 06/21/11 Page 34 of 56 part on questioning his parole agent, and this can be frustrated when a substitute agent appears. In the one postponement by the State this Round, some of the parolee’s witnesses did not return for the rescheduled hearing, a disadvantage partially, though unintentionally, engendered by the State’s actions. In general, however, the system to satisfy this requirement appears to be functioning well.
Supplemental charges (¶ 34): During this Round, it appears that no parolee faced supplemental charges.63
Definition of good cause for delay, remedy for timeframe violation (¶ 33): The parties have agreed on a definition of good cause for delay and remedies
associated with timeframe violations for probable cause hearings held after 35 days, revocation hearings, and revocation extension hearings. The Special Master verified that no probable cause hearing exceeded 35 days without a parolee request.64 In the late revocation hearings discussed above, the case that took place three days late was dismissed for insufficient evidence – thus, the remedy could not be applied – and the postponement over parolee objection was given time credit as agreed.
Prejudice is presumed, and the case will be dismissed, if, absent good cause, a revocation hearing has not been held by the 90th day after the hold.65 To the Special Master’s knowledge, all cases were resolved well before the 90th day.66
34

Case 2:06-cv-02042-LKK -GGH Document 635 Filed 06/21/11 Page 35 of 56
Requirements related to disposition Alternatives to incarceration (¶27) The Stipulated Injunction requires Defendants to “consider whether alternatives to
incarceration are warranted [at the initial case conference]. The advisability of alternatives to incarceration shall be considered again at the Probable Cause Hearing and at the Revocation Hearing.”
Revocation proceedings do appear to have consideration for alternatives to incarceration built in at every step and, according to the State, everyone is eligible for consideration. Youth are continued on parole by their parole agents in about one-third of the actions; this disposition can include placement in programs and other structured activity. The Board also continues some youth on parole, albeit less frequently, at the Return to Custody Assessment step and as a disposition when probable cause has been found on the charges. It is very rare for hearing officers to release a parolee to await revocation hearing after a probable cause finding on the charges. The Board also continues some youth on parole at revocation hearings. To their credit, some hearing officers have taken a more active role in initiating the discussion about alternatives to incarceration at the dispositional stage as opposed to waiting for defense counsel to raise it.
The parties are currently involved in sorting out what alternatives are considered and when, and the scope of information necessary to determine this. Plaintiffs have sought, for several years, to be given detailed information based on the contention that they and CalPAP should know the universe of alternative programs available to be able
35

Case 2:06-cv-02042-LKK -GGH Document 635 Filed 06/21/11 Page 36 of 56
assess compliance and so that CalPAP can better advocate for community placements. Defendants see reasonable monitoring of this topic to be much more limited.
Previously, Defendants arranged for staff to provide descriptions of their practices in order to provide context and to illustrate the methods of consideration. Much of this Round was devoted to mediating to determine the types of documents and other information on point to be shared. Resolution of this dispute is ongoing. On May 5, 2011, the parties engaged in good faith discussions about sharing information that genuinely demonstrates compliance with central due process issues. They were able to resolve many of the long-term issues and it is expected that ongoing mediated discussions will resolve the balance of disputed items in the coming months.
Limiting return to custody time to one year; use of a matrix of ranges of revocation terms (¶ 35):
A matrix routinely guides decisions concerning violation terms, although Plaintiffs and some system actors assert that it carries more harsh penalties than in the adult system and in the previous juvenile system.
The revocation matrix reflects the highest penalty to be one year. Hearing officers routinely inform parolees during proceedings that this is the maximum term. No penalty has exceeded one year in the hearings observed by the Special Master throughout implementation.
There remains a strongly disputed issue, however, concerning policies that permit revocations for an additional year for misconduct during the period in which the parolee is pending revocation.
36

Case 2:06-cv-02042-LKK -GGH Document 635 Filed 06/21/11 Page 37 of 56
Release within three days if time has been served (¶ 38): Discussions are ongoing to determine an effective means to demonstrate that this requirement is being met. The Special Master looks forward to a method being identified and to reviewing the information developed.
Requirements related to ADA and effective communication ADA and effective communications accommodation (¶ 23, 48, 50, 51, 52, 53):
Attention to effective communication carries both ADA and due process implications, and the Stipulated Injunction reflects expectations that ADA and effective communication needs be identified and accommodated. Identification tends to take two forms: assessment during the notice of rights and charges and during hearings, as well as recording known issues in a database and paper files for review during current and future proceedings.
The Mastership is aware that staff are working to expand their ability to conduct interactive interviews with parolees. Defendants have provided multiple trainings on point for Parole and Board staff, including several sessions during this Round; the Board particularly concentrated on ADA interactive interviewing skills. Improvement is seen both in the documentation and the oral assessment during hearings. Nearly all observed staff demonstrate an appreciation for the issue, but they are skilled in only some aspects of identification. For this reason, continued, specific training is needed.
The strengths and weaknesses in the practice of Parole staff were discussed supra. As to hearings, more often than in the past, it was clear that hearing officers had reviewed the file ahead for disabilities and effective communication needs, a welcome
37

Case 2:06-cv-02042-LKK -GGH Document 635 Filed 06/21/11 Page 38 of 56

improvement. The persistent weakness in hearings comes in talking too fast, cursory

explanations, and what appear to be assumptions that what hearing officers are saying is

being understood. These practices can lead to inadequate assessment – thus not

identifying a needed accommodation – or an inadvertent failure to effectively

communicate or accommodate.

.

Among the hearing officers assigned to probable cause hearings and revocation

hearings, three are consistently observed conducting very good assessments.67 A minority

continues to speed through the ADA assessment, some imply or expressly refer to the

process pejoratively as silly, or suggest to the parolee that the attorney will see to their

due process and accommodation needs. Too often with some, the ADA interview consists

of “Can you hear me, see me, and understand what I am saying to you?” When the

parolee answers “yes,” that concludes the ADA/effective communication interview.

Despite training to the contrary, this practice continues.

In addition, the Mastership routinely observed hearing officers move on as soon

as they received a “yes” or “no” answer, even when there were indications that the

response may not have been truthful or complete and that this may affect the hearing.

There are vestiges of the habit of asking questions that suggest that an affirmative answer

is desired – that is, that the parolee is able to manage without accommodation -- that may

chill an informative response. This is particularly troubling where a parolee has serious or multiple conditions likely to impact on his participation, as was observed in this Round.68

For the ADA interview to be meaningful, the interviewer must ask open-ended questions,

use common language and non-technical terms, follow up clues that there may be a need

38

Case 2:06-cv-02042-LKK -GGH Document 635 Filed 06/21/11 Page 39 of 56
not being disclosed, and invite an interactive conversation that makes evident the parolee’s ability or disability rather than relying on him to describe his needs.69
Potential failures of this process might be illustrated by two parolees Plaintiffs noted with a documented primary language other than English and cognitive impairment or low education; in these cases, Plaintiffs could not determine from hearing documents whether the need for an interpreter had been assessed.70
The other aspect of identification is recording known conditions, needs, and accommodations, and consulting those resources during the revocation process. For a year and a half, Defendants have employed a summary sheet on point, which remains in parolee files and is included in revocation packets. This appears to be an effective mechanism. When an agent plans to serve a parolee notice of his rights and charges, she initiates another form carrying forward that known information; she includes her own assessment of the parolee’s understanding of that meeting, and the parolee indicates whether he requests assistance. Here, Plaintiffs’ monitoring revealed a high percentage of lapses: forms that were internally inconsistent, inconsistent between sources, did not carry forward known information, or were otherwise incomplete.71 Reading level has presented consistent problems, including recording incorrect information and apparently accepting parolees’ self-reports without records verification. All of this information is maintained in a database, so addressing these issues will improve future revocation proceedings for these parolees as well as the immediate one to which the form applies.
In terms of accommodation, the Board designates a staff member to review all cases for needed accommodation, to arrange accommodations, and to record and track this information. Magnifiers are available and readily offered at notice service and at
39

Case 2:06-cv-02042-LKK -GGH Document 635 Filed 06/21/11 Page 40 of 56
hearing to parolees whose vision impairment affects reading; similarly, hearing amplifiers are available. For those who have difficulty understanding and communicating in English, Parole staff and attorneys are expected to use phone translation services at most steps; Board staff is tasked with arranging language interpreters for revocation hearings, as well as any needed sign language interpreters.72 Although it was recently determined that hearing staff did not know to check the database for the coordinator’s indication of accommodations to be provided,73 it does appear that this information is generally discerned from the file.
Neither party nor the Special Master has conducted a systematic review in quite some time.74 Five possible failures to provide an identified or requested accommodation have come to the Special Master’s attention during the Round. These involved the possible need for translation, possible need for accommodation for hearing impairment, and the adequacy of accommodation provided for a mobility impairment and learning disability.75 Defendants indicate that no grievances have reported a failure of accommodation, and those forms have been made available routinely for nearly one year, a promising sign.
These indications suggest that, on the whole, accommodations are commonly provided. The Special Master has less confidence in three remaining aspects, all involving parolees with cognitive limitations, such as learning disabilities, processing disorders, communication disorders, and those whose thinking is hindered substantially by medication or mental health condition. The first is a question of whether the need for increased help to understand is being identified for these young men and women, as described above. Secondly, where it is recognized, the Special Master has seen little
40

Case 2:06-cv-02042-LKK -GGH Document 635 Filed 06/21/11 Page 41 of 56
difference in how the hearing is conducted, which suggests a failure of accommodation. Third, parolee files reflect that certain deficits require specific types of accommodations beyond speaking slowly and using simple language; the Special Master has never seen alternate methods in use and Defendants’ tracking does not reflect whether the specific type of accommodation was provided, so it remains an open question whether these needs are being met. In each of these areas, Defendants must take further measures to provide what is needed and demonstrate they have done so.
The Mastership recommends that continued practical training of hearing officers and parole agents regarding ADA and effective communication assessments, accommodations, and documentation remain a priority in the coming Round.
Forms in alternative formats (¶ 55): Previously, Defendants made available in Spanish and large print those forms given to parolees during service of the notice of rights and charges, and the parties agreed that, rather than providing forms in audio format, Defendants will read the forms aloud when needed. Defendants previously ensured that there was equipment available at each of their facilities for parolees needing to listen to materials on recordings; the status of providing this support to parolees housed in jails is unknown, and Plaintiffs assert that it is necessary.76 No new information came to the Special Master’s attention during the Round.
Prohibition of discrimination in parole placements and referrals to services (¶ 27): The parties have long disagreed concerning documentation that may be necessary to demonstrate compliance with this provision. As part of the mediation related to alternatives to incarceration, described supra, the parties recently made decisions about
41

Case 2:06-cv-02042-LKK -GGH Document 635 Filed 06/21/11 Page 42 of 56
many, but not all, of the items proposed to demonstrate compliance. The Mastership is following up with support in resolving the outstanding issues. The Defendants report that there have never been complaints of discrimination and none came to the Special Master’s attention during the Round. They also agree that they will produce any and all discrimination complaints filed.
Develop an ADA grievance procedure (¶ 54): Defendants have put in place an ADA grievance procedure and routinely distribute the form when parole agents serve the notice of rights and charges.77 The Special Master has also observed Defendants’ staff making parolees aware of the ADA grievance procedure during some hearings. Defendants report receiving no grievances raising a failure of accommodation throughout LH implementation.78
Development of an appeal process (¶ 43): Defendants have developed an appeal process with the components required in the Stipulated Injunction, much of which is operating well. Hearing officers generally inform parolees of their right to appeal, including the assistance of counsel and timeframes; however, comprehensive advisement of rights with respect to appeal, hearing process, and fairness is missed in enough hearings that this practice needs more attention.79 The system employs one level of appeal that requires parolees, or their attorneys, to file with the Juvenile Parole Board Executive Officer within 20 business days of receiving the Board Order. By policy, the Executive Officer does have the ability to grant release, discharge or continuation on parole, consistent with the Stipulated Injunction.
42

Case 2:06-cv-02042-LKK -GGH Document 635 Filed 06/21/11 Page 43 of 56
Defendants document nine appeals handled during the Round.80 From that, one appeal was granted, ultimately resulting in dismissal of the charges and the case against the parolee. In all other matters, rehearing was denied.
The Mastership shares Plaintiffs’ concern that the record on appeal does not always provide sufficient information regarding the basis for review and the decisions made. This is important for Defendants and outsiders monitoring due process practice and analyzing legal reasoning as applied to the facts. Even with this shrinking population, the importance of legally sound decisionmaking cannot be minimized when a serious charge is being considered against a juvenile.
In terms of timeliness, Defendants’ and CalPAP data show that, in all cases, the Board issued a decision within 10 business days of receipt, as required, and CalPAP received notice of decisions within the required five business days, with one exception that was one day late. It is unknown whether decisions also reached parolees in this time.
There is an additional mechanism termed decision review, in which Defendants review each Board Order for mistakes of fact, law, or policy. Parolees and the Parole division can also request that a decision be reviewed using these criteria. Plaintiffs continue to object to this system. The parties negotiated some of the standards and timeframes and memorialized those in policy during the last Round, and have agreed to defer work on the dispute while these new practices are put into place.
During this Round, only two rehearings were ordered pursuant to decision review.81 The reasons were of concern to the Mastership. On the other hand, several issues from prior Rounds have been improved. The reasons for reversal were consistently stated in Board Orders and CalPAP was notified quickly. Defendants worked within the
43

Case 2:06-cv-02042-LKK -GGH Document 635 Filed 06/21/11 Page 44 of 56
deadlines set by policy, so rehearings were timely.82 Defendants addressed the appearance of conflict of interest with hearing officers conducting decision review and rehearings.83 As to outcomes, in one case, the parolee likely benefited; in the other, the outcome remained the same and the legal basis expressed was more accurate. Neither decision review extended a parolee’s time in custody. Fairness to the parolee was apparent throughout. The frequency of rehearings was substantially reduced from previous Rounds.84
Comprehensive annual training on ADA and effective communication, the Stipulated Injunction's requirements, policies and procedures, due process (¶ 56):
Defendants have offered training, periodically through implementation, to all types of staff at the Board, parole agents and supervisors, and facilities staff. During this Round, both Parole division and the Board provided annual training on a variety of LHrelated topics.
Parole agent training covered many aspects of LH requirements in just over a day’s time.85 The greatest amount of time was allocated for ADA and effective communication, and the training appropriately emphasized the content for adequate notice in charge reports, clarity and accuracy of violation reports to satisfy due process, effective bases for recommendations about incarceration or alternatives, revocation extension, and continuously assessing whether alternatives to incarceration would be more effective than a return to custody.86 Absent from this training were discussions of the parole agent’s role at revocation hearings and the impact of supplemental charges on due process; these would be beneficial for agents, as well.
The Board also held its annual training during this Round, spanning a day and a half of LH content. One session was especially well designed to cover many due process
44

Case 2:06-cv-02042-LKK -GGH Document 635 Filed 06/21/11 Page 45 of 56
aspects in a creative, effective learning format. Substantial sections were devoted to ADA and effective communication review and documentation, rationale of applicable constitutional law, and the confrontation rights balancing test.87 In a February Board meeting, Defendants also integrated training for Board staff concerning confrontation rights, disability documentation, and other aspects of hearing practice.88
Tracking mechanism for timeframes and reasons for delay (¶ 13, 32, 33): Defendants employ a complex information system that facilitates many aspects of compliance and tracking performance. Despite the system being built on inflexible programming initiated more than 10 years ago, Defendants have made great strides, particularly in this Round, in improving the data reporting capability, removing obstacles that made some information appear inaccurate, and employing alternate methods to demonstrate certain information not reflected in reports. Defendants, and the information systems professionals they contract with, have worked diligently to create and improve data reports so that they capture the specialized populations who are extradited, postpone hearings, invoke optional waivers, or participate in proceedings while remaining in the community. Those reports now indicate the time to hearings for those populations. After examining, testing, and crossreferencing, it appears to the Special Master that most steps’ timeliness data is reflected consistently across reports, and missing cases, calculation errors, and duplication are reduced in “closed case” reports.89 Glitches do continue to surface occasionally, and thus require continued attention, but they do not rise to the level of compromising aggregate data and conclusions drawn therefrom. Defendants also continued to conduct periodic
45

Case 2:06-cv-02042-LKK -GGH Document 635 Filed 06/21/11 Page 46 of 56
studies of the timeliness of revocation steps for open cases and results were consistent with closed cases.
This is an important improvement in Defendants’ ability to demonstrate compliance. Defendants and their contractors have been highly responsive as data report errors and needs have been identified, and their swiftness and effectiveness has been impressive.
Monitoring process In previous Rounds, the parties reached agreement concerning a detailed monthly production of documents and recordings by which Plaintiffs may review critical aspects of the policy implementation. Defendants have provided those materials monthly. Plaintiffs have raised concerns about the accuracy and utility of some documents. Defendants have asked to reduce production in certain areas based on population decline and substantial compliance. The Mastership recently convened the parties to mediate document production disputed issues. Each side acted in good faith in structuring document production for the current year. The parties have agreed to a number of onsite visits by Plaintiffs’ counsel. Continuing from the last Round, Plaintiffs were able to observe notices of rights and charges and hearing practice, as well as interviewing staff, attorneys, and parolees. The parties have successfully renegotiated the monitoring agreements for 2011. The Stipulated Injunction requires Defendants to develop self-monitoring to ensure compliance with its terms and with relevant policies and procedures (¶ 57). The Office of Audits and Compliance, an office external to the Division of Juvenile Justice but within CDCR, has been designated to conduct monitoring.90 It carried out two reviews in early
46

Case 2:06-cv-02042-LKK -GGH Document 635 Filed 06/21/11 Page 47 of 56
2010, but has suspended that activity for nearly a year owing to waves of State budget restrictions and the need to restructure its audit tools to conform to the standards and criteria negotiated by the parties in the last half of 2010.
To date, the parties have worked cooperatively on designing the audit tools. In previous rounds of review, both the Special Master and Plaintiffs held significant reservations about some of the methodology; a revised set of tools is presently pending review. Plaintiffs express their ongoing reservations about the methodologies in the audit tools, and call for further development of methods to evaluate the aspects of the revocation process not easily subject to quantification.
In addition to formal audits, Defendants have a number of oversight mechanisms integrated into operations. From the outset, Defendants have maintained a multidisciplinary team that meets at regular intervals. It can share information and troubleshoot. Its principal operation, at this point, is to examine late cases at every revocation process step; investigate the reasons; and implement and check on corrective action.
Some opportunities are apparent for improving this process. Presumably because the source material does not capture case initiation, two egregiously late revocation extension cases apparently were not examined. Additionally, each division reviews, investigates, and reports on the revocation steps for which it is responsible. That is sensible in terms of maintaining a sense of ownership. The risk is that it is possible to overlook the problems that occur with handoffs between the divisions, or when one division observes a deficient practice that occurred in another division. The process, which is well-designed to analyze and remedy problems, may not be used in these
47

Case 2:06-cv-02042-LKK -GGH Document 635 Filed 06/21/11 Page 48 of 56
instances, depending on whether and how this information is communicated. Some examples where this system fell short came to the Special Master’s attention. It will be important for Defendants to apply this excellent review process in the situations described, in order for it to be fully effective.
Headquarters staff reportedly check open case reports daily for timeliness at each step and follow up to remedy any appearing late. Defendants indicate that field supervisors also frequently check database reports concerning timeliness. These are all excellent measures to ensure that the system becomes established and that systemic and individualized obstacles are identified and addressed early. The widespread and consistent nature of these practices makes it more likely that oversight will become and remain institutionalized.
Revocation Extensions shall only be issued for serious in-custody misconduct or willful program failure and after a hearing timely conducted by a hearing officer with attorney representation and a copy of the decision and tape and appeal rights (¶ 35, 40):
DJJ is operating a revocation extension system, which handled 21 cases during the Round, consistent with the previous Round. Two cases came to the Special Master’s attention that were greatly delayed in initiation – from four to six months after discovery of the conduct at issue. While this did not extend the parolees’ time in custody, it is problematic both that it occurred and that Defendants’ oversight systems do not seem to have addressed them independently. Once identified, Defendants have taken good measures to prevent recurrence.91 Once initiated, there is a near-perfect record on timeliness for all functions; with only one case late 10 days at the notice of rights and being conveyed to the Board.92
Several cases occurred within the month before the parolee was set for release.
48

Case 2:06-cv-02042-LKK -GGH Document 635 Filed 06/21/11 Page 49 of 56
Defendants expedited these hearings so that all occurred by the deadline; indeed, all but one were concluded before the original release date.
The Special Master’s team analyzed three revocation extension hearings via recording and document review. All three involved aggressive behavior while incarcerated. The conduct of the hearings and their due process protections were consistent with Defendants’ other hearings. Attorneys confirmed that all parolees subject to revocation extension during this Round received copies of their written hearing records at the conclusion of the hearings.93
Policies and procedures governing dual commitments (¶ 45): No new information came to the attention of the Special Master concerning the implementation of this policy, which has been in place since 2009.
Elimination of “temporary detentions”; immediate rescission of relevant regulation (¶ 39):
The Stipulated Injunction requires Defendants to “immediately rescind Title 15, California Code of Regulations § 4985,” which concerns this practice. Defendants report that this regulation and Title 15, California Code of Regulations § 4826 were repealed in prior Rounds and that they have reinforced repeatedly with staff that this practice is no longer permitted, including in the most recent annual training for parole agents.94 Plaintiffs have raised concerns that some cases give the appearance of circumventing the prohibition, including one observed during this Round.
49

Case 2:06-cv-02042-LKK -GGH Document 635 Filed 06/21/11 Page 50 of 56
Summary As discussed, significant challenges require attention in order to satisfy due process and this Court’s orders. Among the highest priorities to address are:  Assessing ADA and effective communication needs in notice service and
hearings; adjusting communication with parolees who have cognitive limitations; and demonstrating that specific accommodations are provided when needed  Completeness and accuracy of disability forms (“3.260s”)  Providing evidence with the revocation packet, or as soon after discovery as possible, and no later than two days before the hearing in which it will be introduced  Determination during probable cause hearings of probable cause to continue to detain  Increased clarity in following the law when determining whether hearsay can be used as evidence  Practices that can impact impressions of fairness and neutrality  Accuracy and completeness of hearing orders
It will also be necessary to strengthen internal oversight to be able to demonstrate the ability to assume full responsibily for the revocation system. Defendants should follow through on their plans for self-monitoring, increase the recognition of errors of law, and improve existing systems of review. At least some of the remaining disputed items are core due process issues, and should also be negotiated and implemented once resolved.
Defendants have maintained extraordinary timeliness rates at all revocation steps, and it is impressive that they continue to make improvements. Staff at all levels are respectful of parolees and of the need to protect their ability to understand and participate in revocation proceedings. Importantly, a majority of hearing officers have substantially improved the quality and clarity of probable cause findings. Should the Court adopt the
50

Case 2:06-cv-02042-LKK -GGH Document 635 Filed 06/21/11 Page 51 of 56
recommendations for findings of substantial compliance contained herein, Defendants will have achieved substantial compliance on 17 issues.
In the face of uncertainty and constant change, Defendants’ work has been conscientious and effective. The Mastership encourages them to stay the course during these turbulent times as, together, the parties are making a significant difference in the lives of young parolees.
Recommendations The Defendants have demonstrated compliance with several requirements of the Stipulated Injunction. I therefore recommend that the Court order that the following requirements are substantially compliant, and that the subjects will therefore no longer be a primary focus of Plaintiffs’ or the Special Master’s monitoring unless and until it comes to the parties’ or the Special Master’s attention that there has been a significant decline in compliance. These orders should apply to the following requirements:  Post notice of the material terms of the settlement (¶ 11)  Parolees may elect to take waivers and continuances (¶31)  Providing hearing recordings within 10 business days of written request and a new hearing if the recording is inaudible (¶42)  Representation in revocation extension proceedings (¶35)
Pursuant to the Order of Reference to the Special Master, the Special Master's reports shall be final unless, no later than twenty (20) days after service of the final report, a party files written objections with the Court. If any party files objections, the opposing party shall have twenty (20) days to file a reply to the objections with the Court. If objections are filed, the Court will consider the matter and issue an order adopting the
51

Case 2:06-cv-02042-LKK -GGH Document 635 Filed 06/21/11 Page 52 of 56 report in full or as modified, or rejecting the report.

Respectfully submitted,

/s/Virginia L. Morrison
Virginia L. Morrison Special Master

June 21, 2011

1 Attempts to observe notice service on eight other occasions were unsuccessful. 2 Assembly Bill No. 1628, enrolled Oct. 11, 2010 3 If revoked, there are currently differing interpretations of whether, upon the subsequent release, they would be under the jurisdiction of the state or counties. 4 This case surfaced in the course of the Special Master’s reviews of other subjects. It is unknown whether this is the only such case, or whether there are others. Such a study would be highly advisable. 5 For the Return to Custody Assessment and probable cause hearing steps, there was one case that was late because of a delay at an earlier step; this case was timely handled once it arrived at these steps. One might view such cases as late (hold to step completion) or timely (time to complete this step), so this range reflects the range of timeliness depending on one’s conclusion. Whether the case is included or excluded from timely cases at the probable cause hearing step, the timeliness percentage does not change. 6 The Stipulated Injunction also requires posting in the Office of the Ombudsman, but the parties ultimately agreed that this was unnecessary as parolees cannot access that office.
Plaintiffs raise the question of whether there are posters in living units at county jails where, of course, parolees are housed. It is unclear whether this is required under the Stipulated Injunction, and whether the terms are, in fact, posted. 7 Parolee Rights Handbook section re: parole violation process.pdf; memorandum regarding Parolee Rights Handbook Distribution dated Feb. 25, 2011 8 Closed Case Summary – Postponement Oct. 1, 2010 through Apr. 29, 2011 9 Document Production Itemizations, Oct.2010 through Mar. 2011 10 See third through fifth reports of the Special Master, citing monthly document production itemizations; LH Document Production for each of Oct. 2010 through Mar. 2011. For the inaudible recording discussions, see fourth and fifth reports of the Special Master. 11 DJJ Rev. Extension Cases Closed for each month spanning May 2009 through Mar. 2010 12 CalPAP DJJ Statistics 50 Mile Report for each of October 2010 through March 2011; DJJ Date Case Assigned Compliance Report for each of October 2010 through March 2011; DJJ NIC Cases Closed for each of October 2010 through March 2011; informal communications with CalPAP; Special Master observations 13 This is distinguished from the separate requirement for counsel of choice, which remains subject to full Court oversight 14 Other Objections for each of Oct. 2010 through Mar. 2011. All such objections were granted except for one, which was denied once it was determined that the evidence was provided to CalPAP two days before the hearing.
In their comments to the draft Special Master’s report, Plaintiffs raise an additional case that came to light after the writing of the Special Master’s draft report, and they allege that the ruling and appeal decision were prejudicial to the parolee. The Special Master disagrees with their analysis. 15 Closed Case Summary, run monthly for each of Oct. 2010 through Apr. 2011 16 It may be that, in a subset of these cases, the hold is dropped in deference to prosecution by another entity; in those cases, the status may be “continue on parole” but the parolee remains in custody under the jurisdiction of another agency. It is not practical to discern the number of such cases.
Defendants explain that their data showing fewer cases at each revocation step is the illustration that holds have been dropped. There are no printouts directly showing which parolees were continued on parole and any applicable alternative placements. Plaintiffs strongly advocate that such data should be made

52

Case 2:06-cv-02042-LKK -GGH Document 635 Filed 06/21/11 Page 53 of 56
available to Plaintiffs, and the parties are engaged in mediation efforts on-point with the Deputy Special Master. 17 LH Compliance Report, Apr. 29, 2011 18 Correspondence from C. Chen to S. Huey, Sept. 3, 2010 19 Closed Case Summary and Closed Case Detail Step PCD, Oct. 1, 2010 through Apr. 29, 2011. This report captures special populations subject to longer timelines, so it is possible that fewer than five cases were overdue. 20 LH Compliance Report, Apr. 29, 2011; Special Master’s observations 21 Source for this analysis is a sample of 106 Charge Reports, drawn in equal measure from each of the seven parole units active during the Round, and dating after the division’s training on point. This constitutes 37% of the notices in the Round. See electronic file titled Notice of Charges Sample of 7 Units.pdf, Closed Case Detail by Unit NOR for each of those units, Closed Case Detail by JPB Step NOR Dec. 1, 2010 through Apr. 30, 2011 22 The following section is based on the Special Master’s observations and informal communications with the parties 23 See, e.g., Plaintiffs’ report of monitoring Ventura Youth Correctional Facility in Mar. 2011 24 Individual record and informal communications with Defendants indicate the Robert Presley Detention Center required this when the agent arrived for the second attempt at the jail. The agent reports that she took extra steps to check the parolee’s understanding at regular intervals. Plaintiffs join the Special Master in objecting to this requirement. Defendants have arranged to discuss the issue with the Jail Commander. 25 DJJ Notice of Rights Compliance Report for each of Oct. 2010 through Mar. 2011.
Defendants’ records are consistent with this. Closed Case Summary, LH Timeliness shows two late cases; Closed Case Summary captures six late cases, but the additional four appear to have involved data entry errors and not in custody cases. See these two reports run for Oct. 1, 2010 through Apr. 29, 2011, Closed Case Detail Step NOR for these dates, and individual records in electronic file titled NORs.
Defendants’ records incorrectly suggest that some notices were never served. On examination, the hold on each of these cases was dropped before service was due. NOR Timeliness Oct. 1, 2010 through Apr. 29, 2011 and related individual records 26 NOR Unsuccessful, Will Retry, Oct. 1, 2010 through Apr. 29, 2011; individual records in electronic file titled NORs 27 See, e.g., spreadsheets titled open case summary 2-11-2011.xls and open case summary 5 2 2011.xls 28 See contents of electronic folder titled Plaintiffs’ monitoring 29 Defendants contend that the Stipulated Injunction expressly excluded this step as a requirement by the language “The flowchart does not create any rights beyond those expressly set forth in ¶¶ 1 to 57.” It is Plaintiffs’ position that the steps in the flowchart are part of the Stipulated Injunction because it “incorporate[d] by reference” the flowchart and the flowchart is attached as an exhibit. 30 Closed Case Detail by Unit, Step NOR, run for each of seven parole units; sample pulled 15 cases from each parole unit. See also, select individual cases from the sample stored in the electronic folder titled Violation Report. 31 JSTS – Closed Case Monthly Report Oct. 2010 – Mar. 2011.xls; Closed Case Summary, Closed Case – LH Timeliness, and Closed Case Detail Step Violation Report from each of them, each dated Oct. 1, 2010 through Apr. 29, 2011. These documents, taken together, indicate that three cases were genuinely late. All others that appear late were timely not in custody cases. 32 Document Production Itemization for each ofOct. 2010 through Mar. 2011 33 Oct. 2010 – Mar. 2011 Drill Down (20110511).xls; Closed Case Summary, Closed Case – LH Timeliness, and Closed Case Detail Step RTCA, each dated Oct. 1, 2010 through Apr. 29, 2011. With one exception, the cases that appear late were timely not in custody cases, the same list as appears at the Unit Supervisor review stage. 34 CalPAP Requested Expedited Hearings, Oct. 1, 2010 through Apr. 29, 2011; see prior reports of the Special Master 35 See contents of electronic folder titled PCHs 36 In addition, data reports concerning objections, dismissals and the like sometimes do not distinguish between the types of hearings involved.
53

Case 2:06-cv-02042-LKK -GGH Document 635 Filed 06/21/11 Page 54 of 56
3737 One exception to this came to the Special Master’s attention, and the lack of probable cause was not identified at any revocation step. Once noted, Defendants dismissed those charges. 38 The Mastership reviewed an accidental sample of 43 orders, in addition to 8 associated with site visits, representng 19% of all cases proceeding to probable cause hearing. All cases met the Mastership’s expectations overall, and only three charges were not sufficiently supported in the text of the order. See individual records in the electronic folder titled PCHs 39 The Mastership reviewed an accidental sample of 18 probable cause hearings, 50% of those in custody at the time they opted to proceed to revocation hearing. 40 Defendants have argued that such an assessment is good practice but not required. Plaintiffs assert that it is a critical component of due process. 41 There were approximately 327 proceedings for which a written record would have been generated between Oct. 2010 through Mar. 2011. Closed Case Summary Oct. 1, 2010 through Mar. 31, 2011; Optional Waiver Timeliness and Closed Case Summary – Postponement, each run for Oct. 1, 2010 through Apr. 29, 2011, but April cases are not included in this total 42 Missing Board Orders, run for each of Oct. 2010 through Mar. 2011 43 Closed Case – LH Timeliness Rules, Oct. 1, 2010 through Apr 29, 2011 shows 261 cases. Although all appear timely, this includes 24 postponed cases that are automatically counted as timely regardless of when the rehearing occurs, so these are subtracted from the total (to 237). Closed Case Summary - Postponement and Open Case Summary – Time Waiver for those dates, and Open Case Summary - Postponement for Apr. 29, 2011, reveals 10 time waivers, all of which were rescheduled or pending within the time waived, and 14 postponements, all but 3 of which were rescheduled within one week, which the Mastership has been using as a rough measure of reasonableness. Closed Case Extradition shows 5 cases, 4 of which were timely. Thus, of 266 cases, 262 were timely or rescheduled in a reasonable time, which constitutes 98%.
This does not include any open extradition cases, because no report currently captures them. With fewer than one extradition per month, this should not affect the conclusion. 44 DJJ Probable Cause Hearing Compliance Report for each of Oct. 2010 through Mar. 2011; spreadsheets titled open case summary 2-11-2011.xls and open case summary 5 2 2011.xls 45 The parties maintain a dispute about whether and when this is good cause for a hearing exceeding the Stipulated Injunction’s timeframes. 46 Optional Waiver Activated Cases for each of Oct. 2010 through Mar. 2011. Defendants’ reports show far fewer cases based on different search criteria. Timeliness calculations, however, are consistent across sources. 47 Printouts show 19 cases with a completed or pending optional waiver review. Defendants’ policy does not specify a timeframe for this proceeding. Most were closed in less than 2 weeks, all within 19 days, and one was pending at 11 days. Optional Waiver Timeliness,Oct. 1, 2010 through Apr. 29, 2011, confirmed by Optional Waiver Open Cases run Apr. 29, 2011. The latter report appears to show a second case open and overdue, but the Special Master determined that this is a data entry issue. 48 All time waivers were concluded within the time waived. Time waiver and postponement information found at Closed Case Summary – Postponement Oct. 1, 2010 through Apr. 29, 2011, Open Case Summary – Postponement Apr. 29, 2011, and individual cases stored in the electronic folder titled Optional Waivers 49 Reviews have not been comprehensive, but have identified 14 county jails and all CDCR adult institutions as requiring universal restraints. 50 This occurred in five hearings; another objection was determined to be incorrect and was denied. Other Objections for each of Oct. 2010 through Mar. 2011 51 Hearing Decision Dismiss Oct. 1, 2010 through Apr. 29, 2011 52 Recordings from monthly document productions; Granted Comito Objections, each of Jan. and Feb. 2011; Denied Comito Objections Jan. 2011; and related individual records in electronic folder titled Comito. CalPAP reports that there were no confrontation rights objections made in Dec. 2010 and Mar. 2011, and none granted in Feb. 2011, so this is the full set of reported objections from December forward. 53 In two cases, hearing officers recorded objections on other grounds and did not record the confrontation rights balancing test. If the attorneys did, in fact, make confrontation rights objections, this is problematic. The bases for these two objections are not entirely clear, so the Special Master cannot make a determination about these two cases. However, in general, Defendants must be vigilant to ensure that
54

Case 2:06-cv-02042-LKK -GGH Document 635 Filed 06/21/11 Page 55 of 56
hearing officers recognize the objection being made, record all objections, and do not avoid a difficult analysis by substituting a different objection; all of these practices have been observed in the past. 54 This occurred once during the Round and occasionally over time. Termed a “public safety holdover,” Defendants acknowledge that this is not good cause to delay hearings. 55 This term is used to describe those revocation actions that follow the normal course. The concept excludes cases with special circumstances, such as not in custody hearings, extradition, parolee time waivers, optional waivers, and postponements. 56 Occasional glitches remain where a case is mis-identified or the date calculation is incorrect. After crossreferencing reports within Defendants’ database and with that of CalPAP, and examining dozens of records; the Mastership is confident that these glitches are few. 57 CalPAP’s and Defendants’ records agree on one late case. It was completed quickly, within an additional three days. Another appears late in Defendants’ database but CalPAP indicates that the parolee asked for a time waiver, and the hearing occurred timely within it.
The second late case is a postponement that will be discussed below. DJJ Revocation Hearing Cases Over 35 Days for each of Oct. 2010 through Mar. 2011, Closed Case Detail-Hearing Events Step RevH Oct. 1 through Apr. 29, 2011, related individual hearing records, informal communications with CalPAP. 58 See, e.g., spreadsheets titled open case summary 2-11-2011,xls and open case summary 5 2 2011.xls 59 In fact, not in custody cases tended to be held well ahead of the deadlines. During this Round, nearly all who proceeded to a revocation hearing had been in custody and then released to await hearing. Policy essentially allows 70 days for not in custody hearings (up to 10 days from discovery to service of notice, and 60 additional days to hearing). These cases were completed between 27 and 58 days from hold or discovery, evenly distributed across that range. Closed Case Detail NIC Cases Step RevH, Oct. 1, 2010 through Mar. 31, 2011, and related individual records in electronic folder titled NIC; DJJ NIC Cases Closed for each of Oct. 2010 through Mar. 2011; NIC Timeliness Oct. 1, 2010 through Mar. 31, 2011
DJJ Optional Waiver Activated Cases for each of Oct. 2010 through Mar. 2011; Optional Waiver Timeliness, Oct. 1, 2010 through Apr. 29, 2011. Blanks in the latter report indicate optional waivers taken but not yet activated. The optional waiver timeline is one Defendants are applying. Plaintiffs contend that counting the days to hearing should resume at the point when the optional waiver was exercised (for a total of 35 days in the revocation process, not including the period of the optional waiver). 60 Closed Case Summary – Extradition 61 After a manual check, the Special Master determined that only two cases postponed at probable cause hearing or optional waiver went on to a revocation hearing. In both cases, Defendants were successful in holding the revocation hearing within the Stipulated Injunction’s original deadline. 62 Closed Case Summary – Postponement and Open Case Summary – Postponement, Oct. 1, 2010 through Apr. 29, 2011 and related individual records. The report gives the incorrect impression that the decision review case was postponed twice; the first entry is time from the overturned hearing to the decision review itself. The time from order to rehearing was 11 days. 63 Closed Case Summary – Supplemental Charge Cases, Oct. 1, 2010 through Apr. 29, 2011; informal communication with Defendants confirmed this report 64 Closed Case Summary, Closed Case Detail Step PCH, and Closed Case Summary – Postponement, each run for Oct. 1, 2010 through Apr. 29, 2011, and individual related files. Each entry exceeding 25 business days on Closed Case Detail was verified as having taken a timeliness waiver. 65 These agreements are captured in Joint Stipulation Regarding Modifications to Division of Juvenile Justice Parole Revocation Policies and Procedures, Sept. 10, 2009. Plaintiffs maintain that the Injunction is violated whenever the 35-day timeframe is not met without a showing of good cause, and that a case should be dismissed if the hearing has not been held within 60 days after the hold. 66 Closed Case Summary and Closed Case Detail Step RevH, each for Oct. 1, 2010 through Apr. 29, 2011 67 Plaintiffs’ monitoring reports; Special Master’s observations 68 See, e.g., Plaintiffs’ Mar. 23, 2011 letter analyzing February document production; related individual record 69 For example, if a juvenile answers that he no longer takes medications for mental illness, asking him how he is different today from when he took them could develop needed information about whether effective communication can be accomplished. In terms of accessible language, making a small shift to asking about prescribed medicine would likely prove more interactive and productive than asking about “psychotropic medication,” a medical term.
55

Case 2:06-cv-02042-LKK -GGH Document 635 Filed 06/21/11 Page 56 of 56
70 See Plaintiffs’ monitoring report of Ventura Youth Correctional Facility and Plaintiffs’ analysis of the document production provided in Mar. 2011 71 See contents of electronic folder titled Plaintiffs’ monitoring 72 Reportedly, the need has not yet arisen for sign language interpreters. 73 See Plaintiffs’ Mar. 21, 2011 letter summarizing monitoring at Santa Rita County Jail and Oakland Parole Unit 74 Defendants audited ADA and effective communication issues in 2009 75 A parolee requested a wheelchair and Defendants reportedly ordered it the day before the hearing, but the county jail provided a cane, indicating that a wheelchair was not available. The attorney objected but said that the parolee was able to proceed with this substitute accommodation. In another proceeding, different observers held different opinions about the adequacy of accommodation for a hearing-impaired parolee. Other Objections Nov. 2010; individual hearing records
Plaintiffs’ monitoring identified two cases in which it was unclear whether the need for translation had been assessed, and an additional concern that a staff assistant was needed in addition to an attorney for a learning disabled parolee. Plaintiffs’ report on monitoring Ventura Youth Correctional Facility and Plaintiffs’ analysis of the monthly document production provided in Mar. 2011 76 Informal communications with Defendants Mar. and Nov. 2010 77 Special Master’s observations 78 LH Compliance Report dated Apr. 29, 2011 and document productions; the one ADA grievance form submitted during this Round concerned a different topic. There was, however, an objection made on this basis during one revocation hearing. Plaintiffs’ Jan. 12, 2011 letter analyzing the December 2010 document production, related individual record 79 One parolee also reported to Plaintiffs his impression that staff had told him he waived his right to appeal by accepting an offer. Plaintiffs’ monitoring letter concerning Ventura Youth Correctional Facility 80 Appeals documents within monthly document productions Oct. 2010 through Mar. 2011 81 CalPAP DJJ Decision Review Cases, for each of Oct. 2010 through Mar. 2011 82 One involving a probable cause hearing was reheard in five days, within the five business days allowed by policy. An optional waiver is in place, so the timing of a final hearing is not affected.
The second case involved a revocation hearing. The rehearing occurred 11 days after the decision review order, within the 10 business days allowed by policy. The total time to a final hearing, then, was 53 days. 83 In one case, the same hearing officer conducted both the decision review and the rehearing, but this preceded discussions with the Special Master identifying this concern. In the one rehearing after said discussion, a different hearing officer was assigned. 84 See contents of electronic folder titled Decision Review 85 DJPO Annual Review Refresher Training Agenda 86 Observations of Mastership 87 December 2010 JPB Annual Training Agenda; electronic files titled LH Jeopardy Pwrpt.ppt and Effective ADA Interview Techniques PPT 2007 Version (12-2-10.ppt; Special Master’s observations 88 February 28, 2011 Board Meeting Agenda 89 Occasional flaws remain, but their frequency is reduced to a level that can be managed through manual recalculation. 90 Plaintiffs have expressed doubt that an office within CDCR can be sufficiently independent to produce results that can be relied upon. The Mastership’s contacts with this office to date raise no concerns about its objectivity. 91 DJJ Rev Extension Cases Closed for Mar. 2011; individual cases in electronic folder titled Rev Ext; informal communications with Defendants 92 Closed Case Summary - Revocation Extension, Oct. 1, 2010 through Mar. 31, 2011; DJJ Rev. Extension Cases Closed for each of Oct. 2010 through Mar. 2011. Another notice of rights appears as late on the Defendants’ report, but this is a data entry issue. A revocation hearing appears late, but it involves a parolee time waiver and a parolee request for postponement. 93 Informal communications with CalPAP 94 Observations of Mastership
56

 
 [687047-18]

1 GEOFFREY HOLTZ – 191370

MICHAEL W. BIEN – 096891

BINGHAM McCUTCHEN LLP

GAY CROSTHWAIT GRUNFELD – 121944

2 Three Embarcadero Center

LESLIE C. MEHTA – 258512

San Francisco, California 94111-4067

SUMANA COOPPAN WOLF – 267967

3 Telephone: (415) 393-2000

ROSEN BIEN GALVAN & GRUNFELD LLP

315 Montgomery Street, Tenth Floor

4

San Francisco, California 94104-1823

Telephone: (415) 433-6830

5

DONALD SPECTER – 083925

SUSAN L. BURRELL – 074204

6 SARA NORMAN – 189536

CAROLE SHAUFFER – 100226

CORENE KENDRICK – 226642

YOUTH LAW CENTER

7 PRISON LAW OFFICE

200 Pine Street, 3rd Floor

1917 Fifth Street

San Francisco, California 94104-2704

8 Berkeley, California 94710-1916

Telephone: (415) 543-3379

Telephone: (510) 280-2621

9

Attorneys for Plaintiffs

10

UNITED STATES DISTRICT COURT

11

EASTERN DISTRICT OF CALIFORNIA

12

L.H., A.Z., D.K., D.R., M.N., and R.C., on behalf of

Case No. Civ. S-06-2042 LKK-GGH

13 themselves and all other similarly situated juvenile

parolees in California,

STIPULATION AND ORDER

14

Plaintiffs,

15

v.

SETTING FORTH PROCESS FOR TERMINATING STIPULATED ORDER FOR

EDMUND G. BROWN, JR., Governor, State of

PERMANENT INJUNCTIVE

16 California; MATTHEW CATE, Secretary, California

RELIEF

Department of Corrections and Rehabilitation (“CDCR”);

17 SCOTT KERNAN, Undersecretary of Operations, CDCR;

BERNARD WARNER, Chief Deputy Secretary of the

18 Division of Juvenile Justice; RACHEL RIOS, Director,

Division of Juvenile Parole Operations; MARTIN

19 HOSHINO, Executive Officer of the Board of Parole

Hearings (“BPH”); ROBERT DOYLE, Chair of the BPH;

20 SUSAN MELANSON, HENRY AGUILAR, ASKIA

ABDULMAJEED, JOSEPH COMPTON, ROBERT

21 CAMERON, JOYCE ARREDONDO, MARY

SCHAMER, and TRACEY ST. JULIEN, Commissioners

22 and Board Representatives; CHUCK SUPPLE, Executive

Officer of the Juvenile Parole Board; CDCR; DIVISION

23 OF JUVENILE JUSTICE; BOARD OF PAROLE

HEARINGS; and the JUVENILE PAROLE BOARD,

24

Defendants.

25

26

27

28

STIPULATION AND [PROPOSED] ORDER SETTING FORTH PROCESS FOR TERMINATING STIPULATED ORDER FOR PERMANENT INJUNCTIVE RELIEF

[687047-18]

1

Plaintiffs filed this class action lawsuit on September 13, 2006, alleging that

2 Defendants’ policies and practices denied California juvenile parolees their constitutional

3 rights to due process, equal protection, and assistance of counsel. Plaintiffs also alleged

4 that these juvenile parolees’ rights under the Americans with Disabilities Act, 42 U.S.C.

5 §§ 12101-12213, (“ADA”) and section 504 of the Rehabilitation Act, 29 U.S.C. § 794

6 were being violated. (See Dkt. No. 1.)

7

On February 28, 2007, this Court certified this case as a class action, with the

8 Plaintiff Class consisting of the following persons: Juvenile Parolees in or under the

9 jurisdiction of California, including all Juvenile Parolees with Disabilities, as that term is

10 defined in section 504 of the Rehabilitation Act and the ADA, who are: (1) in the

11 community under parole supervision or who are at large; (2) in custody in California as

12 alleged parole violators, and who are awaiting revocation of their parole, or; (3) in custody,

13 having been found in violation of parole and returned to custody. The fact that they have

14 attained majority does not exclude them from the Class. They remain Class members until

15 they are discharged from the jurisdiction of the DJJ. (Dkt. No. 65.) On September 19,

16 2007, this Court issued an Order granting Plaintiffs’ Motion for Partial Summary

17 Judgment, holding that Defendants violated the Plaintiffs’ due process rights by failing to

18 hold constitutionally-adequate probable cause hearings prior to parole revocation. (Dkt.

19 No. 201.) On January 29, 2008, this Court issued a Preliminary Injunction on attorney

20 appointment and ADA accommodations. (Dkt. No 266.)

21

The parties signed the Stipulated Order for Permanent Injunctive Relief

22 (“Injunction”) in June 2008, and it was approved, after notice to the class and a public

23 hearing, and entered by this Court on October 7, 2008. (Dkt. No. 438.) Since that time,

24 the parties and the Office of the Special Master have been working diligently together to

25 overhaul the juvenile parole revocation system and bring it into constitutional and ADA

26 compliance.

27

Defendants have eliminated coercive procedures and actions, such as committing

28 juveniles to time in prison without the advice of counsel. They have abolished practices
1
STIPULATION AND [PROPOSED] ORDER SETTING FORTH PROCESS FOR TERMINATING STIPULATED ORDER FOR PERMANENT INJUNCTIVE RELIEF

[687047-18]

1 that could keep revoked parolees incarcerated indefinitely. They have systematized

2 decision-making so that the steps are predictable, proceedings are based on evidence, and

3 staff work to inform and involve the juveniles. All proceedings are provided with

4 exceptional timeliness, and a substantial proportion of juveniles are diverted from

5 revocation into alternatives to incarceration. In short, Defendants have demonstrated

6 compliance with virtually all of the Injunction’s requirements, as evidenced by Special

7 Master’s Eighth Report on the Status of Conditions of the Stipulated Order.

8

On June 27, 2012, Senate Bill 1021 was approved by the Governor and chaptered

9 by the Secretary of State (Chapter 41, Statutes of 2012). The parties acknowledge that as a

10 result of Senate Bill 1021, most juvenile parole operations terminate as of January 1, 2013.

11 However, juvenile parolees who are detained on a parole hold prior to January 1, 2013,

12 will have their revocation proceedings conducted in early 2013. Defendants will no longer

13 subject class members in custody to revocation extension proceedings on or after January

14 1, 2013.

15

The parties are in agreement with the court-appointed Special Master’s findings that

16 the defendants have reached “substantial compliance” in most areas of the Injunction, as

17 that term has been defined by the Special Master. The passage of Senate Bill 1021 and the

18 imminent termination of juvenile parole have created the need for prompt attention to

19 resolving any existing obligations, and the parties stipulate that the process outlined below

20 shall govern the termination of the Stipulated Order for Permanent Injunctive Relief. This

21 process complies with the requirements of Federal Rules of Civil Procedure 23 and 60.

22

NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED AS

23 FOLLOWS:

24

1. Within 30 days of this Court’s issuance of this Stipulated Order, and

25 pursuant to Federal Rule of Civil Procedure 23(e)(1), Defendants shall provide written

26 notice to all L.H. class members of the proposed termination of the Stipulated Order for

27 Permanent Injunctive Relief and the process that shall govern the termination. The

28 language of the notice shall be agreed upon by the parties prior to distribution to the class.
2
STIPULATION AND [PROPOSED] ORDER SETTING FORTH PROCESS FOR TERMINATING STIPULATED ORDER FOR PERMANENT INJUNCTIVE RELIEF

[687047-18]

1 Specifically, the notice shall inform L.H. class members that the Court is considering a

2 Joint Motion to Terminate the Stipulated Order for Permanent Injunctive Relief (“Joint

3 Motion”), and shall provide the proposed process for termination, what termination means,

4 the opportunity, method, and deadline for class members to file objections to or comments

5 on the Joint Motion, the date of the noticed public hearing on the Joint Motion, and

6 Plaintiffs’ counsel’s contact information. Such written notice shall be available in both

7 English and Spanish, and shall be mailed to all L.H. class members at their last known

8 address with a copy retained in each parolee’s field file, shall be available to juvenile

9 parolees in all parole field offices, shall be posted in all California Division of Juvenile

10 Justice facilities, reception centers and camps, and shall be posted on the DJJ’s website for

11 public review and download.

12

2. Within 30 days of this Court’s issuance of this Stipulated Order, and

13 pursuant to Federal Rules of Civil Procedure 60(b)(5) and 23(e)(3), the parties shall file the

14 Joint Motion. There shall be a noticed public hearing on the Joint Motion, the date of

15 which shall be determined by the parties and the Court based on availability in the Court’s

16 Civil Motion Calendar. To the extent there is disagreement between the parties over the

17 terms and contents of the Proposed Order that accompanies the Joint Motion, the parties

18 may submit separate Proposed Orders along with the Joint Motion.

19

3. Pursuant to Federal Rule of Civil Procedure 23(e)(5), L.H. class members

20 shall have the opportunity to submit objections or other comments regarding the Joint

21 Motion and the proposed process for termination. L.H. class members (and interested

22 members of the public) may submit these objections and comments to the Court via U.S.

23 mail. Objections and comments submitted to the Court must be postmarked no later than

24 thirty (30) days from the date the notice to the class is mailed and posted on DJJ’s website.

25 The Court shall have at least fifteen (15) days to consider the objections and comments

26 before the noticed public hearing.

27

4. Seven (7) days before the noticed public hearing date, the Office of the

28 Special Master shall issue a recommendation to this Court indicating whether, in the
3
STIPULATION AND [PROPOSED] ORDER SETTING FORTH PROCESS FOR TERMINATING STIPULATED ORDER FOR PERMANENT INJUNCTIVE RELIEF

[687047-18]

1 Special Master’s opinion, the parties’ Joint Motion should be granted or denied, in whole

2 or in part. The Special Master’s recommendation may include reference to Defendants’

3 compliance with the requirements of the Injunction to date, as well as the parties’ efforts to

4 amicably resolve any remaining disputes, but shall not constitute a full report on the status

5 of the conditions of the Stipulated Order. The parties may respond to the Special Master’s

6 recommendation no later than three (3) days before the noticed public hearing.

7

5. On the date selected by the parties and this Court, and pursuant to Federal

8 Rule of Civil Procedure 23(e)(2), the Court shall conduct a noticed public hearing

9 regarding the Joint Motion to Terminate and the fairness, reasonableness, and adequacy of

10 the [Proposed] Order Granting Parties’ Joint Motion to Terminate Stipulated Order for

11 Permanent Injunctive Relief (or in the event the parties file separate [Proposed] Orders, the

12 fairness, reasonableness, and adequacy of each [Proposed] Order submitted). At this

13 hearing, class members and members of the public may present objections to the Motion

14 and/or the process for termination. The Court may hear testimony from the Office of the

15 Special Master and the parties as necessary, and shall make findings of fact as appropriate.

16 / / /

17 / / /

18 / / /

19 / / /

20 / / /

21 / / /

22 / / /

23 / / /

24 / / /

25 / / /

26 / / /

27 / / /

28 / / /
4
STIPULATION AND [PROPOSED] ORDER SETTING FORTH PROCESS FOR TERMINATING STIPULATED ORDER FOR PERMANENT INJUNCTIVE RELIEF

[687047-18]

1

6. After the noticed public hearing, the Court shall issue a final order granting

2 or denying, in whole or in part, the parties’ Joint Motion, pursuant to Federal Rules of

3 Civil Procedure 23(d)(1)(B)(i) and 23(d)(1)(E). This Order shall govern the actual

4 termination of the Injunction and the conclusion of the case up to and including the entry

5 of final judgment.

6 IT IS SO STIPULATED.

7

8 DATED: December 14, 2012

Respectfully submitted,

9

ROSEN BIEN GALVAN & GRUNFELD LLP

10

11

By: /s/ Michael W. Bien

12

Michael W. Bien

13

Attorneys for Plaintiffs

14 DATED: December 14, 2012

HANSON BRIDGETT LLP

15

16

By: /s/ Samantha D. Wolff

Samantha D. Wolff 17

18

Attorneys for Defendants

19

20

The Court, having reviewed the parties’ Stipulation, and good cause appearing,

21 adopts the parties’ stipulation as an order.

22

IT IS SO ORDERED.

23 DATED: January 17, 2013.

24

25

26

27

28
5
STIPULATION AND [PROPOSED] ORDER SETTING FORTH PROCESS FOR TERMINATING STIPULATED ORDER FOR PERMANENT INJUNCTIVE RELIEF

 
 1

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

8

EASTERN DISTRICT OF CALIFORNIA

9

10 L.H., A.Z., D.K., and D.R., on behalf of themselves and
11 all other similarly situated juvenile parolees
12 in California,

13

Plaintiffs,

NO. CIV. S-06-2042 LKK/GGH

14

v.

O R D E R

15 EDMUND G. BROWN, JR., Governor, State of
16 California, et al,

17

Defendants.

/

18

19

The parties' Joint Motion to Terminate Stipulated Order for

20 Permanent Injunctive Relief ("Joint Motion"), came on for hearing

21 on March 25, 2013. Counsel for Plaintiffs and Defendants were

22 present. This Court has reviewed the pleadings, records, and

23 papers on file and accordingly makes the following determinations:

24

Whereas, the parties have entered into a Stipulated Order

25 Setting Forth Process for Terminating Stipulated Order for

26 Permanent Injunctive Relief, which became an order of the Court on

1

1 January 18, 2013;

2

Whereas, the parties filed a Joint Motion on February 19,

3 2013, pursuant to Federal Rules of Civil Procedure 60(b)(5) and

4 23(e)(3);

5

Whereas, the Court has determined that adequate notice has

6 been provided to the class members regarding the Joint Motion and

7 the process of termination, pursuant to Federal Rule of Civil

8 Procedure 23(e)(1);

9

Whereas, the Court has determined that the L.H. class members

10 were provided with a reasonable opportunity to submit objections

11 or other comments regarding the Joint Motion and the proposed

12 process for termination, pursuant to Federal Rule of Civil

13 Procedure 23(e)(5) but that no such comments and objections were

14 received from class members;

15

Whereas, on March 18, 2013, the Office of the Special Master

16 issued a recommendation to this Court addressing Defendants'

17 compliance with the Injunction to date, and recommending that the

18 court grant the Joint Motion (ECF No. 698);

19

Whereas, on March 25, 2013, the Court conducted a noticed

20 public hearing regarding the Joint Motion, pursuant to Federal Rule

21 of Civil Procedure 23(e)(2); and good cause appearing therefore,

22 the Court now finds and orders as follows:

23

FINDINGS

24

a. In orders dated September 19, 2007 and January 29, 2008,

25 this Court found that California's juvenile parole revocation

26 system violated juvenile parolees' due process rights, the

2

1 Americans with Disabilities Act, 42 U.S.C. §§ 12101-12213 ("ADA"),

2 and section 504 of the Rehabilitation Act, 29 U.S.C. § 794. (ECF

3 Nos. 201 and 266). The Court approved a Stipulation and Order for

4 Permanent Injunctive Relief ("Injunction") on October 7, 2008,

5 which set forth detailed requirements to remedy these federal

6 violations, including attorney representation, revocation system

7 procedures, effective communication and reasonable accommodations,

8 and consideration of alternatives to incarceration. (ECF No. 438).

9

b. Since the Court approved the Injunction, the parties and

10 the Office of the Special Master have worked diligently together

11 to overhaul the juvenile parole revocation system. In just four

12 years, Defendants (with the aid of Plaintiffs and the Office of the

13 Special Master) made impressive progress, rapidly transforming the

14 juvenile parole revocation system from one that was

15 unconstitutional and fundamentally unfair to one that respects and

16 protects juvenile parolees' constitutional rights to due process,

17 equal protection, and assistance of counsel, and statutory rights

18 under the ADA and the Rehabilitation Act.

19

c. Defendants have eliminated coercive procedures and

20 actions, such as incarcerating youth for alleged parole violations

21 without representation of counsel. All parolees are appointed

22 counsel during the revocation process to further ensure protection

23 of their due process rights. They have abolished practices that

24 could keep revoked youth incarcerated indefinitely. They have

25 systematized decision-making so that the steps are predictable,

26 proceedings are based on evidence, and staff work to inform and

3

1 involve the juveniles. All proceed ings are now provided with

2 exceptional timeliness, and a substantial proportion of juveniles

3 are diverted from revocation into alternatives to incarceration.

4

d. Defendants have demonstrated compliance with virtually

5 all of the Injunction's requirements, as evidenced by Special

6 Master's Eighth Report on the Status of Conditions of the

7 Stipulated Order, the parties' Joint Motion to Terminate, and the

8 Special Master's Recommendation Regarding the parties' Joint Motion

9 to Terminate. The Special Master has found Defendants to be in

10 sustained substantial compliance with the vast majority of the

11 Injunction's requirements; for the remaining few areas where

12 sustained substantial compliance has not been shown, Defendants

13 have made significant advances towards achieving substantial

14 compliance.

15

e. On August 24, 2007, Senate Bill ("SB") 81 was approved

16 by the Governor and chaptered by the Secretary of State. As a

17 result of SB 81, the type of youth who could be committed to the

18 Division of Juvenile Justice ("DJJ") was limited: only youth whose

19 most recent sustained offense was listed under Welfare and

20 Institutions Code 707(b) (violent offenses), or an offense listed

21 in Penal Code 290.008 (sex offenses) are eligible for commitment

22 to DJJ. In addition, SB 81 required that non-707(b) offenders be

23 returned to the county of commitment upon release for community

24 supervision, rather than DJJ parole.

25

f. On October 19, 2010, Assembly Bill ("AB") 1628 was

26 approved by the Governor and chaptered by the Secretary of State.

4

1 As a result of AB 1628, first commitment youth ("first-commits")

2 to DJJ were re leased from the Division of Juvenile Facilities

3 (“DJF”) upon the completion of their sentence, discharged from DJJ

4 parole, and sent to their county of commitment for supervision.

5 These persons are no longer subject to DJJ parole supervision or

6 revocation procedures and may not be returned to a DJJ facility to

7 serve a parole revocation sentence. To the extent these former

8 class members have been subject to revocation, the Court is

9 informed that juvenile probation revocation procedures under the

10 supervision of the Superior Courts, including representation by

11 counsel, are required by state law.

12

g. On June 27, 2012, Senate Bill ("SB") 1021 was approved

13 by the Governor and chaptered by the Secretary of State. After

14 passage of SB 1021, most juvenile parole operations terminated as

15 of January 1, 2013. However, juvenile parolees who were alleged

16 to have violated the terms of their parole prior to January 1, 2013

17 were still subject to revocation proceedings after January 1, 2013.

18 All such revocation proceedings completed on January 17, 2013

19 (although there are currently one or more juveniles on optional

20 waiver who could activate their waiver and request an optional

21 waiver review hearing on or before June 20, 2013).

22

h. As a result of Assembly Bill 1628 and Senate Bill 1021,

23 the number of juvenile parolees in California has dropped

24 dramatically. As of January 1, 2013, no new class members will be

25 added since juvenile parole supervision terminated. As of February

26 16, 2013, only 21 class members remained, all of whom are in

5

1 custody on revocation terms, and by June 28, 2013, there will no

2 longer be any L.H. class members. Additionally, on January 1,

3 2013, Defendants ended the practice of revocation extension whereby

4 juveniles' revocation terms could be extended for misbehavior while

5 in custody. Accordingly, the terms of the juveniles serving

6 revocation terms cannot be extended.

7

i. This Court has adopted all of the findings in the eight

8 previously-filed Reports of the Special Master on the Status and

9 Conditions of the Stipulated Order. In the Recommendation filed

10 with this Court on March 18, 2013, the Office of the Special Master

11 issued her findings with respect to the Joint Motion.

12

j. Plaintiffs have requested that this court "reserve

13 jurisdiction" over this case for five (5) years for the "limited"

14 purpose of "ensuring that the State does not re-institute a system

15 of state-run juvenile parole." Defendants assert that such a

16 reservation of jurisdiction is beyond this court's power. Because

17 plaintiffs have identified no constitutional, statutory, Supreme

18 Court or Ninth Circuit authority for the proposition that this

19 court could engage in such conduct - exercising authority over the

20 State in the absence of any claim of current or even threatened

21 constitutional or statutory violation -- the court declines the 22 invitation to do so.1

23
1 See Collins v. Thompson, 8 F.3d 657 (9th Cir. 1993), cert. 24 denied, 511 U.S. 1127 (1994) (in the context of a prison consent
decree, affirming the district court's decision not to continue the 25 exercise of jurisdiction beyond the time the constitutional
violations were fully remedied); accord, Board of Education v. 26 Dowell, 498 U.S. 237 (1991) (in the context of a school

6

1

k. Accordingly, the Court finds that the jointly requested

2 relief is fair, reasonable and adequate within the meaning of Fed.

3 R. Civ. P. 23(e)(2). The court further finds that the Stipulated

4 Order for Permanent Injunctive Relief has been satisfied pursuant

5 to Fed. R. Civ. P. 60(b)(5), inasmuch as defendants’ full, good-

6 faith and long-term compliance with the injunction and their

7 cooperation with the Special Master have permanently eliminated the

8 constitutional and statutory violations. Further, defendants have

9 now eliminated the juvenile parole system, which was the focus of

10 the injunction, effective June 28, 2013.

11 GOOD CAUSE APPEARING THEREFORE, IT IS HEREBY ORDERED THAT:

12

l. The Stipulated Order for Permanent Injunctive Relief

13 shall apply in full force until the last scheduled hearing

14 (including hearings requested as a result of the activation of

15 optional waivers) has taken place. During this time, the parties

16 shall continue to track and monitor Defendants' compliance with the

17 Injunction.

18

m. Defendants shall notify Plaintiffs' counsel, the Special

19 Master, and the Court once the last scheduled hearing (including

20

21 desegregation decree, "necessary concern for the important values
of local control of public school systems dictates that a federal 22 court's regulatory control of such systems not extend beyond the
time required to remedy the effects of past intentional 23 discrimination") (internal quotation marks omitted);
Labor/Community Strategy Center v. Los Angeles County Metropolitan 24 Transp. Authority, 564 F.3d 1115, 1123 (9th Cir. 2009) (in the
context of a consent decree regarding a public transportation 25 system, "federal court intervention in state institutions is a
temporary measure and may extend no longer than necessary to cure 26 constitutional violations").

7

1 hearings requested as a result of the activation of optional

2 waivers) has been completed. Ten (10) days after Defendants file

3 such notification, Defendants shall be relieved of any duty to

4 comply with the requirements emanating from the Injunction, until

5 the last parolee serving a revocation term has been released from

6 custody, except for the following provisions:

7

a. Tracking parolee discharge dates to ensure that

8 parolees are not over-detained;

9

b. Notifying Plaintiffs' counsel, the Special Master,

10 and the Court once the last parolee serving a revocation term has

11 been released from custody.

12

n. Upon Defendants' notification that the final class member

13 has been released, the parties and the Special Counsel shall,

14 within twenty (20) days, file their motions, if any, for attorneys'

15 fees, and fees for the Special Master Court.

16

o. Upon resolution of the fee motions, the court will

17 terminate this case.

18

IT IS SO ORDERED.

19

DATED: March 29, 2013.

20

21

22

23

24

25

26

8

 
 L.H. v. Schwarzenegger, Not Reported in F.Supp.2d (2007)
2007 WL 662463 Only the Westlaw citation is currently available.
United States District Court, E.D. California.
L.H., A.Z., D.K., and D.R., on behalf of themselves and all other similarly situated juvenile parolees in California, Plaintiffs, v.
Arnold SCHWARZENEGGER, Governor, State of California, et al, Defendants. No. CIV. S-06-2042 LKK/GGH. | Feb. 28, 2007.
Attorneys and Law Firms Carole Shauffer, Corene Thaedra Kendrick, Karen Kennard, Kristen A. Palumbo, Briana Lynn Morgan, Bingham McCutchen LLP, Susan Lynn Burrell, Maria V. Morris, Meghan Regina Lang, Michael Bien, Sarah Laubach, Rosen Bien & Galvan, LLP, San Francisco, CA, Donald Specter, Prison Law Office, San Quentin, CA, Gay Crosthwait Grunfeld, Rosen Loeb and Pines, Sherman Oaks, CA, for Plaintiffs. Benjamin Terrence Rice, CA Department of Justice, Office of the Attorney General, Sacramento, CA. James Michael Sobolewski, Office of the Attorney General, Sacramento, CA, for Defendants. Opinion
ORDER
LAWRENCE K. KARLTON, United States District Court Senior Judge. *1 Plaintiffs, juvenile parolees in California, allege that defendants have a policy and practice of denying juvenile parolees their constitutional rights to due process, equal protection and effective assistance of counsel. Plaintiffs also allege that defendants have a policy and practice of denying class members with disabilities their statutory rights under the Americans with Disabilities Act (the “ADA”), 42 U.S.C. §§ 12101-12213, and section 504 of the Rehabilitation Act, 29 U.S.C. § 794. Pending before the court are three motions, plaintiffs’ motion for class certification and defendants’ motion to dismiss and/or strike, as well as a motion to use plaintiffs’ full names. The court resolves the motions based on the papers and after oral argument.
I.
Factual Allegations & Background This suit is brought by four plaintiffs, L.H., A.Z., D.K., and D.R., on behalf of “a class of over 4,000 juveniles who have been or are at imminent risk of being wrongfully and unconstitutionally deprived of their liberty in connection with the granting, extending and/or revoking of their parole in California.” First Amended Complaint ¶ 1 (“FAC”).
A. The Four Named Plaintiffs 1

L.H. v. Schwarzenegger, Not Reported in F.Supp.2d (2007)
1. L.H. L.H. is a 23-year-old Department of Juvenile Justice (“DJJ”) parolee, who has spent approximately five years in DJJ facilities. FAC ¶ 72. He was paroled and then placed under a parole hold (arrested) for being under the influence of alcohol while living at a residential substance abuse center. L.H. did not receive a preliminary hearing. Plaintiffs aver that after more than a month in custody, on the date appointed for L.H’s parole revocation hearing, the parole officer assigned to the case failed to bring the case file, resulting in an additional three weeks of delay. L.H. was therefore in DJJ custody without a probable cause or revocation hearing for more than two months. Id.
When L.H.’s hearing occurred, L.H. avers that he did not know he had the right to counsel and was not appointed counsel. FAC ¶ 73. L.H. was sentenced to serve additional months in DJJ custody.
L.H. maintains that he has needed special education since childhood and requires assistance with reading. FAC ¶ 74. According to the complaint, L.H. suffered from developmental delays attributable to premature birth and a head injury during childhood. L.H. maintains that he is an individual with a disability as that term is defined in Section 504 and the ADA.
L.H. is currently on parole until 2008.
2. A.Z. A.Z. is a 22-year-old DJJ parolee, who recently served a six month parole revocation term. A.Z. has been subject to parole revocation proceedings on three separate occasions. In all three proceedings, A.Z. asked for counsel but was informed that counsel could not be appointed. A.Z. alleges that the hearings were conducted without counsel. FAC ¶ 76. A.Z. also maintains that the hearings occurred more than 50 miles from A.Z.’s residence, making it difficult or impossible for him to present witnesses in his favor. Id. Moreover, A.Z. had been in custody for several months prior to the hearings. Id.
*2 At A.Z.’s most recent revocation hearing, the hearing officer asked whether he was “harmed” by the parole department’s inability to find a police report of his arrest. A.Z., unrepresented by counsel, replied in the negative. In retrospect, A.Z. maintains that this was incorrect. He was harmed because he had to serve an additional 30 days in county jail while parole representatives searched for the police report. FAC ¶ 77.
A.Z. also maintains that at the last minute, and without any notice or explanation, A.Z.’s parole agent changed the sentence recommendation from continuation on parole to return to custody. The hearing officer revoked A.Z.’s parole, refusing to give him credit for the 30 days served in county jail. A.Z. promptly attempted to appeal that decision, but his appeal was initially “lost” and only granted after his attorney wrote to defendants. Id. A.Z. alleges that his case was particularly complex because criminal charges were brought in addition to parole revocation charges, and, as discussed, the related police report was lost for 30 days. FAC ¶ 78.
A.Z. is currently on parole until 2008.
3. D.K. D.K. is a 23-year-old currently released on parole supervision. After being released on parole in June 2005, he was arrested by his parole agent on or about August 15, 2005 for an alleged “dirty” drug test and was incarcerated pending his parole revocation hearing. D.K. avers that he did not receive a copy of the drug test results, and he did not receive a preliminary hearing. On or about September 1, 2005, D.K. received notice that he would have a parole revocation hearing on September 8. With such short notice, D.K. maintains that it was difficult or impossible to obtain witnesses or evidence in his favor. Despite the short notice, his mentor, who helped D.K. find employment when he was released on parole, appeared for the hearing. This witness, however, was not permitted to speak. FAC ¶ 81.
The revocation hearing was conducted without an attorney to represent D.K. despite his request for assistance. Per his parole agent’s recommendation, D.K. was continued on parole. He was released to parole supervision on or about September 15, 2005, a month after his initial arrest. D.K. alleges that he lost his job as a result of the month in custody. Id.
D.K. avers that he has history of drug and alcohol abuse and has participated in substance abuse counseling beginning before his release from custody. FAC ¶ 82. He does not have a high school diploma or G.E.D. At the time of his arrest and revocation hearing, his DJJ file contained diagnoses of mental disorders. Id. D.K. asserts that he is an individual with a
2

L.H. v. Schwarzenegger, Not Reported in F.Supp.2d (2007)
disability as that term is defined in Section 504, 29 U.S.C. section 705(20), and the ADA.
D.K. is on parole until 2007.
4. D.R. D.R. is a 23-year old DJJ parolee, who was first committed to DJJ five years ago. D.R. paroled in January 2004, and was living in the community. In or around December 2004, D.R. was arrested and placed in custody on three alleged parole violations: use of marijuana, driving on a suspended/revoked license, and failure to report a police contact to his parole agent. D.R. received notice of the alleged charges over a month after he was taken into custody, a mere four days before his revocation hearing. D.R. did not receive a preliminary hearing. FAC ¶ 84.
*3 At his hearing, D.R. maintains that he requested two evidentiary witnesses, neither of whom was called by defendants. D.R. also alleges that he was never shown the laboratory results upon which the marijuana charge was based. D.R. asserts that he did not request an attorney because he was informed that he was not eligible for appointed counsel. Id.
D.R.’s parole was revoked in January 2005. He immediately appealed the decision, stating that his due process rights were violated by defendants’ failure to provide sufficient notice of the hearing and the failure to call his witnesses. D.R. requested, but never received, a copy of his hearing tape. Three months later, the appeal was denied. FAC ¶ 86.
D.R. asserts that he spent 21 months in custody and went to four Parole Consideration Hearings before the BPH finally ended his parole revocation term and released him. D.R. requested, but never received, copies of two of his Parole Consideration Hearing tapes. FAC ¶ 87.
D.R. maintains that he has a history of mental health concerns, and attempted suicide while in custody for his parole revocation. D.R. maintains that DJJ failed to provide him with adequate treatment or counseling, yet at one of his parole consideration hearings, BPH expressly denied parole to D.R. due to his need for mental health treatment. After that hearing, D.R. did not see a mental health professional again for months. FAC ¶ 88.
D.R. is on parole until 2007.
B. Plaintiffs’ General Allegations Plaintiffs assert that these experiences are part of defendants’ general practice of, among other things: (1) failing to provide preliminary hearings to determine whether there is probable cause to believe there has been a parole violation, FAC ¶ 28(2) failing to provide or allow for assistance of counsel when required by law, id. at ¶ 51-61(3) failing to allow parolees an opportunity to confront witnesses or present evidence, id. at ¶ 33-38, 50 and (4) failing to hold final parole revocation proceedings within a reasonable time, id. at ¶ 32.
Plaintiffs maintain that their status as juveniles causes them to be in particular need of constitutional and statutory protections. Plaintiffs’ complaint sets forth the ways in which juvenile parolees are less educated, less mature and less able to understand the revocation process as compared to adult parolees. FAC ¶ 2, 5-23. For example, it is estimated that among juvenile detainees in the United States, nearly 60 percent read at or below a fifth to sixth grade level, with 32 percent reading at or below a fourth grade level. Id. ¶ 6. Plaintiffs also aver that one report estimates that as many as 60 or 70 percent of incarcerated youth nationwide have diagnosable mental disorders. Id. ¶ 12. Plaintiffs assert that these sorts of factors exacerbate the problems faced by juvenile parolees. In part because DJJ is administered within the adult correctional system, plaintiffs maintain that DJJ staff have no background or training in juvenile parole matters. Id. ¶ 21.
C. The Proposed Class *4 The proposed class consists of juvenile parolees in or under the jurisdiction of California, including all juvenile parolees with disabilities as that term is defined in Section 504 of the Rehabilitation Act and the ADA, who are: (i) in the community under parole supervision or who are at large (ii) in custody in California as alleged parole violators, and who are awaiting revocation of their parole or (iii) in custody, having been found in violation of parole and returned to custody. FAC ¶ 105.
3

L.H. v. Schwarzenegger, Not Reported in F.Supp.2d (2007)
D. Related Cases On September 15, 2006, the court related the pending suit to Valdivia v. Schwarzenegger, No. Civ. S-94-0671 LKK/GGH (E.D.Cal.1994). In Valdivia, plaintiffs are adult parolees in California. The Valdivia plaintiffs brought suit alleging, inter alia, that California’s parole process deprived them of due process and their right to counsel under the Sixth Amendment. See 2002 Complaint. On June 14, 2002, the court granted plaintiffs’ motion for summary judgment, holding that the “current California parole revocation system violated the plaintiffs’ due process rights.” Valdivia v. Davis, 206 F.Supp.2d 1068, 1078 (E.D.Cal.2002) (Karlton, J.).
A permanent injunction was issued on March 9, 2004. Pursuant to the injunction, defendants were ordered to serve adult parolees with, inter alia: (1) notice of charges within three business days of the placement of a parole hold (2) the right to counsel in probable cause and parole revocation and hearings (3) a preliminary hearing to determine good cause for detention within ten business days after the deadline for notice and (4) a final revocation hearing within 35 days of the hold, at which adult parolees can present and cross-examine witnesses and offer documentary evidence.
Although not related by order of the court, there is a second case which is also related to the pending suit. In Armstrong v. Davis, No. C-94-2307 (N.D.Cal.2001), plaintiffs are adult prisoners and parolees with disabilities. A revised permanent injunction was issued on February 11, 2002. The injunction ordered that defendants identify, track, and provide reasonable accommodations to adult parolees with disabilities at parole proceedings, and required that adult parolees with disabilities receive access to forms in alternate formats, to equipment and assistance to effectively communicate, and to a grievance procedure for processing denials of requests for accommodations.
Plaintiffs assert that since they will remain under DJJ jurisdiction until the age of 25, they will not receive the protections that adult parolees receive under Armstrong or Valdivia.
II.
ANALYSIS
A. STANDING Defendants move to dismiss on the grounds that plaintiffs have failed to demonstrate standing to sue for equitable relief. Defendants assert that since the plaintiffs are on parole, they are not subject to defendants’ patterns and practices relating to parole revocation. It is pure speculation, defendants argue, that plaintiffs will be subjected to parole revocation proceedings. Accordingly, plaintiffs have no standing under Article III. For the reasons discussed below, the court cannot agree.
1. Applicable Law *5 On a motion to dismiss, the allegations of the complaint must be accepted as true. Takhar v. Kessler, 76 F.3d 995, 1000 (9th Cir.1996), quoting Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). The court is bound to give plaintiffs the benefit of every reasonable inference to be drawn from the “well-pleaded” allegations of the complaint. Retail Clerks Intern. Ass’n, Local 1625, AFL-CIO v. Schermerhorn, 373 U.S. 746, 753 n. 6, 83 S.Ct. 1461, 10 L.Ed.2d 678 (1963). Thus, plaintiff need not necessarily plead a particular fact if that fact is a reasonable inference from facts properly alleged. See id.; see also Wheeldin v. Wheeler, 373 U.S. 647, 648, 83 S.Ct. 1441, 10 L.Ed.2d 605 (1963) (inferring fact from allegations of complaint).
To establish standing, plaintiffs must demonstrate that they have:
(1) suffered an “injury in fact” that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.
4

L.H. v. Schwarzenegger, Not Reported in F.Supp.2d (2007)
Friends of the Earth, Inc. v. Laidlaw Environmental Services, Inc., 528 U.S. 167, 181, 120 S.Ct. 693, 145 L.Ed.2d 610(2000). These requirements together constitute the “irreducible constitutional minimum” of standing. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). The party invoking federal jurisdiction bears the burden of establishing these elements. FW/PBS, Inc. v. Dallas, 493 U.S. 215, 231, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990). “At the pleading stage, general factual allegations of injury resulting from the defendant’s conduct may suffice, for on a motion to dismiss we presume that general allegations embrace those specific facts that are necessary to support the claim.” Lujan, 504 U.S. at 561 (internal citations and quotation marks omitted).
In class action suits, the named plaintiffs must also have standing when the class is certified. Sosna v. Iowa, 419 U.S. 393, 403, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975). The named plaintiffs must be a “member of the class which he or she seeks to represent at the time the class action is certified by the district court.” Id. Since the class in this case has not yet been certified, the court analyzes the standing of the named plaintiffs and not the class as a whole. See Nelsen v. King County, 895 F.2d 1248, 1255 (9th Cir.1990).
In the case at bar, the parties do not dispute the last two standing requirements-causal connection and redresability. Accordingly, the court will confine its analysis to the question of injury.
2. Injury In Fact In order to enjoy standing, plaintiffs must plead an actual or imminent injury; “speculative” injuries are insufficient to confer standing. Lujan, 504 U.S. at 561. Moreover, where, as here, plaintiffs seek prospective injunctive relief, they must also demonstrate “that he is realistically threatened by a repetition of [the violation].” Los Angeles v. Lyons, 461 U.S. 95, 109, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983) (holding that plaintiff cannot establish the requisite type of harm simply by pointing to some past injury). The Ninth Circuit has characterized this additional showing as the “realistic repetition” requirement. Armstrong v. Davis, 275 F.3d 849, 861 (9th Cir.2001).
*6 Plaintiffs may demonstrate that the harm is capable of realistic repetition when the harm is part of a “pattern of officially sanctioned ... behavior, violative of the plaintiffs’ [federal] rights.” LaDuke v. Nelson, 762 F.2d 1318, 1323 (9th Cir.1985). As the Ninth Circuit explains, “where the defendants have repeatedly engaged in the injurious acts in the past, there is a sufficient possibility that they will engage in them in the near future to satisfy the ‘realistic repetition’ requirement.” Armstrong, 275 F.3d at 861. When a named plaintiff asserts that injuries have been inflicted upon a class of plaintiffs, the court may consider the harm asserted by the class to determine if there is a credible threat that the named plaintiff’s injury will recur. Id. citing LaDuke, 762 F.2d at 1326. In Armstrong, the court explained:
Where a court, through its specific factual findings, documents the threat of future harm to the plaintiff class and establishes that the named plaintiffs (or some subset thereof sufficient to confer standing on the class as a whole) are personally subject to that harm, the “possibility of recurring injury ceases to be speculative,” and standing is appropriate.
Armstrong, 275 F.3d at 861 (internal citations omitted).
a. Threat of Future Harm In the case at bar, the named plaintiffs have demonstrated that they are realistically threatened by future harm. As in both Valdivia (to which this case is related) and Armstrong, the plaintiffs here base their standing on the “threat of future injury from a systemically defective parole revocation procedure.” Valdivia v. Schwarzenegger, No. Civ. S-94-0671 LKK/GGH (E.D. Cal. order issued Dec. 1, 1994) (“Valdivia Order”).
As in Valdivia, qualitative indicators are one factor the court considers in its analysis of the likelihood of future injury. See Valdivia Order at 8. See also Armstrong, 275 F.3d at 861 (court may look at harm asserted by class as a whole). Plaintiffs allege that juvenile parolees in California have an extremely high recidivism rate. Approximately 70% of juvenile parolees are arrested within 36 months of release. FAC ¶ 3.
Many of the returns to custody are for technical violations. Statistics from the California Department of Corrections and Rehabilitation’s Division of Juvenile Justice report that, of 3,599 parole violation actions handled in 2005, 490 were for being absent without leave (AWOL), and of those, 132 (27.0%) resulted in revocation or recommitment; 1,415 were for other technical violations, and of those, 1,135 (80%) resulted in revocation or recommitment; 238 were for law violations in which
5

L.H. v. Schwarzenegger, Not Reported in F.Supp.2d (2007)
the person was not prosecuted or found not guilty, and of those, 94 (39.5%) resulted in revocation or recommitment. Id.
As this court remarked in Valdivia,
[t]hese statistics illustrate the unique degree to which parolees are subject to the challenged revocation procedures. Parolees are, by definition, already subject to defendants’ oversight and control. Consequently, they are far more likely to experience recurrent injuries than are plaintiffs who have attempted to challenge practices that only randomly affect members of the general public.
*7 Valdivia Order at 8. For the same reasons, the named plaintiffs in the case at bar are likely to experience recurrent injuries.
Moreover, characteristics unique to juvenile parolees make it more likely that they will face parole revocation proceedings in the future. In their complaint, plaintiffs assert that juvenile parolees demonstrate limited cognitive and emotional development, as well as significant rates of educational deficiencies. See FAC ¶ 5-9. Plaintiffs also maintain that the incidences of serious mental health and learning disabilities for juvenile parolees is far higher as compared to the general public. See FAC ¶ 9-10. Plaintiffs purport that in California, as many as half of the wards in DJJ custody have mental, emotional, or learning disabilities. Approximately 25 % of all wards within DJJ are registered with Special Education and assigned individualized education plans. FAC ¶ 11. These factors suggest that juvenile parolees are uniquely vulnerable to violating their parole and being subject to the complained of practices.
In Armstrong, the court was faced with very similar facts and found that “a person with disabilities is more likely to be suspected of conduct that results in the revocation of parole than other parolees.” The court concluded:
It is therefore likely that these individuals will have difficulty interacting with the personnel who supervise their parole, explaining any innocent but non-conforming behavior, and showing remorse for otherwise minor infractions of the conditions of their parole that do not rise to the level of unlawful conduct. These problems make it more likely that such parolees will be subjected to the parole revocation process, even though they have not committed any unlawful act or violated any condition of their parole.
Armstrong, 275 F.3d at 867. The same logic applies to the case at bar.
Juvenile parolees’ relationship to the parole system is comparable to the relationship between plaintiffs and defendants in R.G. v. Koller, 415 F.Supp.2d 1129 (D.Haw.2006). There, three gay and lesbian youth sued the Hawaii Youth Corrections Facility for discriminatory practices. Although the three plaintiffs were not incarcerated at the time they filed their complaint, the court held that plaintiffs had standing to seek prospective injunctive relief. Relying in part on a statistic that 82.2% of wards in Hawaii are rearrested after released on parole, the court held that this type of statistical evidence made it “neither remote nor speculative” that plaintiffs would return to the facility. Id. at 1136-37.
The personal experience of the named plaintiffs also suggest that the complained of injury will reoccur. At the time the First Amended Complaint was filed, one of the plaintiffs, A.Z. had already been through three parole revocation proceedings. FAC ¶ 76. Plaintiffs state that since the First Amended Complaint was filed, A.Z. has been again subjected to parole revocation proceedings on two separate occasions, and D.R. on one occasion. As in Valdivia, “these prior injuries serve as evidence that the future threat is likely to actually occur.” Valdivia Order at 10. See also Lyons, 461 U.S. at 102 (noting that past wrongs are evidence “bearing on whether there is a real and immediate threat of repeated injury”; Kolender v. Lawson, 461 U.S. 352, 357 n. 3, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983) (finding a “credible threat” of future injury in part based on plaintiffs’ past experiences with defendants’ conduct).
*8 Additionally, plaintiffs L.H and D.K. are substance abusers. Like two of the named plaintiffs in Valdivia, L.H.’s and D.K.’s problems with alcohol and drugs contributed to their exposure to parole revocation proceedings. As this court observed in Valdivia, alcohol or drug-related parole violations could again “catalyze the revocation process.” Valdivia Order at 10. The same logic applies here. Given L.H.’s and D.K.’s problems, there is a high likelihood that they will continue to face parole revocation proceedings.
Defendants argue that the “possibility of plaintiffs being subjected to future parole revocation hearings is uniquely within their control.” Defs.’ Mot. to Dismiss at 12. This argument has been squarely rejected by this court and the Ninth Circuit. In Armstrong, the Ninth Circuit found that adult parolee plaintiffs could not control whether they would be injured again by the
6

L.H. v. Schwarzenegger, Not Reported in F.Supp.2d (2007)
defendants’ illegal conduct because parolees can be subject to revocation proceedings at any time without engaging in unlawful conduct. Id. at 866. The court explained:
The [parole] Board is not required to establish probable cause to begin the parole revocation process, nor is it necessary that any law enforcement officer observe the alleged violation, the Board may start parole revocation proceedings when a rather low level of suspicion arises as the result of “some minimal inquiry” into the facts of the case.
Id. This court’s order in Valdivia also rejected the very argument defendants now raises. This court concluded that “parolees are, by definition, already subject to defendants’ oversight and control.” Valdivia Order at 9. See also R.G. v. Koller, 415 F.Supp.2d at 1137 (rejecting defendants argument the plaintiffs do not have standing because they will only return to custody if they violate the law).
For the reasons explained above, both Valdivia and Armstrong are on point and instructive. Juvenile parolees, like adult parolees and adult parolees with disabilities, continue to face the real risk of future injury based on their status as parolees. There is no reason for the court to now second guess either its own prior order, or the decision of the Ninth Circuit.
b. Actual Injury Plaintiffs have presented sufficient allegations of actual injury to confer standing. Lujan, 504 U.S. at 561. Plaintiffs allege they are injured by defendants’ policies and practices regarding parole revocation. The named plaintiffs have alleged that defendants have violated their constitutional rights in several ways: (1) failing to provide preliminary hearings to determine whether there is probable cause to believe there has been a parole violation, FAC ¶ 28(2) failing to provide or allow for assistance of counsel when required by law, id. at ¶ 51-61(3) failing to allow parolees an opportunity to confront witnesses or present evidence, id. at ¶ 33-38, 50 and (4) failing to hold final parole revocation proceedings within a reasonable time, id. at ¶ 32.
*9 This alleged treatment is sufficient to constitute an actual injury. See Armstrong at 865. As in Armstrong, the consequences of the defendants’ alleged unlawful actions is that plaintiffs have been unable to meaningfully participate in the parole process. This constitutes actual injury. Id.
In light of plaintiffs’ status as parolees, their ongoing supervision by defendants, their high recidivism rate, their allegations of past injury, and the specific experiences of the named plaintiffs, the threat of parole revocation is sufficiently real and imminent to satisfy the Article III injury requirement.
B. CLASS CERTIFICATION Plaintiffs move for class certification pursuant to Rule 23(b) (2) of the Federal Rules of Civil Procedure. The proposed class consists of juvenile parolees in or under the jurisdiction of California, including all juvenile parolees with disabilities as that term is defined in Section 504 of the Rehabilitation Act and the ADA, who are: (i) in the community under parole supervision or who are at large (ii) in custody in California as alleged parole violators, and who are awaiting revocation of their parole or (iii) in custody, having been found in violation of parole and returned to custody. See FAC ¶ 105.
1. Applicable Law A party seeking to certify a class must demonstrate that it has met all four requirements of Rule 23(a) and at least one of the requirements of Rule 23(b). Zinser v. Accufix Research Inst., Inc. ., 253 F.3d 1180, 1186 (9th Cir.2001).
Rule 23(a) allows a class to be certified:
only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.
7

L.H. v. Schwarzenegger, Not Reported in F.Supp.2d (2007)
Fed.R.Civ.P. 23(a). In other words, the class must satisfy the requirements of numerosity, commonality, typicality, and adequacy.
Rule 23(b) provides for three types of class actions. Fed.R.Civ.P. 23(b). Plaintiffs here seek to certify the class under Rule 23(b)(2), which allows a class to be certified if “the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.” Fed.R.Civ.P. 23(b)(2).
This court must conduct a “rigorous analysis” of the moving party’s claims to examine whether the requirements are satisfied, Gen. Tel. Co. of the Sw. v. Falcon, 457 U.S. 147, 161, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982). The court is “at liberty” to consider evidence that relates to the merits, if such evidence also goes to the requirements of Rule 23. Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir.1992). However, the court may not consider whether the party seeking class certification has stated a cause of action or is likely to prevail on the merits, Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974). If the court concludes that the moving party has met its burden of proof, then the court has broad discretion to certify the class. Zinser, 253 F.3d at 1186.
2. Numerosity *10 Rule 23(a) allows a class to be certified only if the “the class is so numerous that joinder of all members is impracticable.” Fed.R.Civ.P. 23(a). The numerosity requirement does not require that joinder of all members be impossible, but only that joinder be impracticable. Arnold v. United Artists Theatre Circuit, Inc., 158 F.R.D. 439, 448 (N.D.Cal.1994). Moreover, plaintiffs need not state the exact number of potential class members, nor is a specific number of class members required for numerosity. Arnold, 158 F.R.D. at 448. Whether joinder is impracticable depends on the facts and circumstances of each case. Id.
When the number of proposed class members does not, on its own, satisfy the numerosity requirement, the court may consider other factors such as the geographical diversity of class members, the ability of individual claimants to institute separate suits, and whether injunctive or declaratory relief is sought. Jordan v. Los Angeles County, 669 F.2d 1311, 1319 (9th. Cir.1982) (vacated on other grounds by 459 U.S. 810, 103 S.Ct. 35, 74 L.Ed.2d 48 (1982)).
In the case at bar, plaintiffs assert that the proposed class includes over 4,000 individuals. “This number includes juvenile parolees who have been or are at imminent risk of being wrongfully and unconstitutionally deprived of their liberty in connection with the revoking, subsequent granting, and extending of their parole.” Pls. Mot. for Class Cert. at 8. Defendants do not contest that plaintiffs have satisfied this requirement as to their constitutional claims. Defendants do, however, argue that plaintiffs do not meet the numerosity requirement with respect to plaintiffs’ ADA and Section 504 claims. Defendant avers that there is no specific allegation regarding the number of juveniles who are in danger of having their rights under the ADA and Section 504 violated. The court cannot agree.
Plaintiffs’ complaint sets forth sufficient allegations to suggest that, among the 4,000 juvenile parolees, many have disabilities.1 Plaintiffs assert that one U.S. Department of Justice Survey found learning disabilities in nearly 50% of juveniles in custody. See FAC ¶ 10. Plaintiff also asserts that in California as many as half of the wards in DJJ custody have mental, emotional or learning disabilities. Approximately 25% of all wards are registered with Special Education and assigned individualized treatment plans. FAC ¶ 11.2
Although the allegations in the complaint must be taken as true for the purposes of class certification, Blackie v. Barrack, 524 F.2d 891, 901 n. 17 (9th. Cir.1975), the court is “at liberty” to consider evidence that relates to the merits if such evidence also goes to the requirements of Rule 23, Hanon, 976 F.2d at 508. Here, plaintiffs submitted evidence in the form of a report entitled, “Identifying Mental Health Treatment Needs Amount Serious Institutilized Delinquents Using Paper and Pencil Screening Instruments: Finial Report to the National Institute of Justice” (2003). The report found that the prevalence of diagnosable mental disorders among incarcerated juvenile populations is as “as high as 60-70 %.“ See Reply Decl. of Kirsten A. Palumbo, Ex. A at 1.
*11 The very nature of the allegations also suggests that joinder is impracticable. According to plaintiffs’ allegations, deficiencies in DJJ make it difficult, if not impossible, to identify and track the number of juvenile parolees with disabilities. Given the difficulty in even identifying disabled plaintiffs, joiner would be impracticable if not impossible.
Other courts have similarly found that joinder is impractical where it is difficult to identify the members of the proposed
8

L.H. v. Schwarzenegger, Not Reported in F.Supp.2d (2007)
class. See, e.g., Phillips v. Joint Legislative Comm., 637 F.2d 1014, 1022 (5th Cir.1981) (numerosity found in race discrimination suit where neither party could count or identify class members, as defendant-employer did not track applicants’ race); Israel v. Avis Rent-A-Car Sys., Inc., 185 F.R.D. 372, 378 (S.D.Fla.1999) (numerosity found where identifying class members was difficult because much of information was within defendant’s control), rev’d on other grounds, 211 F.3d 1228 (11th Cir.2000).
For these reasons, the court concludes that joinder of the class members would be impracticable. Plaintiffs have satisfied the numerosity requirement.
3. Common Issue of Law or Fact The commonality requirement is met if “plaintiffs’ grievances share a common question of law or of fact.” Armstrong, 275 F.3d at 868. It is well established that “all questions of fact and law need not be common to satisfy the rule. The existence of shared legal issues with divergent factual predicates is sufficient ...” Hanlon, 150 F.3d at 1019.
In civil-rights suits the commonality requirement “is satisfied where the lawsuit challenges a system-wide practice or policy that affects all of the putative class members.” Armstrong at 868, citing LaDuke, 762 F.2d at 1332.
In the case at bar, the common issue raised by plaintiffs is whether “defendants’ policies, procedures and practices violate [plaintiffs’] constitutional and statuary rights in parole proceedings.” Pls. Mot. for Class Cert. at 10. Plaintiffs allege that defendants defective practices affect all of the putative class members.
Defendants contend that the commonality requirement cannot be met with respect to plaintiffs’ disability claims. Defendants assert:
Because of the uncertainty of the number of qualified individuals with disabilities, the case-by-case review of records and files necessary to determine if a plaintiff is a qualified individual with disability, and the individualized nature of the relief that may be required, certification of the Plaintiffs’ disability claims in the present case should also be denied.
Defs.’ Oppo. to Pls. Mot. at 12-13. This argument has been squarely rejected by the Ninth Circuit. In Armstrong, defendants argued that “a wide variation in the nature of the particular class members’ disabilities precludes a finding of commonality.” Armstrong, 275 F.3d at 868. The court rejected this argument, holding instead that, “in a civil-rights suit, that commonality is satisfied where the lawsuit challenges a system-wide practice or policy that affects all of the putative class members.” Id. The court went on to explain that:
*12 In such circumstance, individual factual differences among the individual litigants or groups of litigants will not preclude a finding of commonality ... Certainly, the differences that exist here do not justify requiring groups of persons with different disabilities, all of whom suffer similar harm from the Board’s failure to accommodate their disabilities, to prosecute separate actions. The commonality requirement is met.
Id. The reasoning of Armstrong applies with equal force to the case at bar. Here, as in Armstrong, disabled plaintiffs are challenging practices which prevent them from participating meaningfully in the parole process. The allegations of system wide deficience affects all of the putative class members with disabilities, regardless of the specific nature of their individual disability.
For these reasons, the court finds that plaintiffs have satisfied the commonality requirement.
4. Typicality The typicality requirement of Rule 23(a) is fulfilled if “the claims or defenses of the representative parties are typical of the claims or defenses of the class.” Fed.R.Civ.P. 23(a)(3). Typicality requires that “the claims of the class representatives be typical of those of the class, and to be ‘satisfied when each class member’s claim arises from the same course of events, and each class member makes similar legal arguments to prove the defendant’s liability.’ “ Armstrong, 275 at 868 (citing Marisol
9

L.H. v. Schwarzenegger, Not Reported in F.Supp.2d (2007)
v. Giuliani, 126 F.3d 372, 376 (2nd Cir.1997)). Moreover, the typicality requirement may be satisfied if “all the members of the purported class would be benefitted by the suit plaintiffs seek to bring.” Ellis v. Naval Air Rework Facility, Alameda, Cal., 404 F.Supp. 391, 396 (N.D.Cal.1975).
In the case at bar, plaintiffs satisfy the typicality requirement. As previously discussed, the deprivations complained of by plaintiffs affect the entire plaintiffs class. Minor differences among the class are inconsequential. See Armstrong. Moreover, plaintiffs assert a common claim, namely, that the current parole process violates constitutional and statutory rights.
Defendants assert that L.H. and D.K. are not in fact disabled and therefore neither of these plaintiffs meet the typicality requirement. See Defs.’ Oppo to Pls.’ Mot. for Class Cert. at 11. In support of this assertion, defendants attached excerpts from L.H.’s and D.K.’s files. Defendants maintain that these excerpts demonstrate that the two plaintiffs are not, in fact, disabled. For example, defendants point to certain records which document that D.K. “completed all proficiency tests in math, reading, and writing in order to take his G.E.D.” Defs.’ Oppo. at 10. Based on these records and others, defendants conclude that D.K is not disabled.
With respect to L.H., defendants identify certain records and conclude that although L.H. had “early educational problems ... these problems appear to be due to habitual truancy rather than any developmental disability.” Id. at 10. In light of the assertion that neither of these named plaintiffs are disabled, defendants maintain that the typicality requirement is not met. The court must reject defendants’ position. As the Ninth Circuit recently reiterated, “arguments evaluating the weight of evidence or the merits of a case are improper at the class certification stage.” Dukes v. Wal-Mart, Inc., 474 F.3d 1214 at 6 (9th Cir.2007), citing Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974).
*13 In Blackie v. Barrack, the Ninth Circuit set forth the applicable standard to apply in this circumstance:
The court is bound to take the substantive allegations of the complaint as true, thus necessarily making the class order speculative in the sense that the plaintiff may be altogether unable to prove his allegations. While the court may not put the plaintiff to preliminary proof of his claim, it does require sufficient information to form a reasonable judgment. Lacking that, the court may request the parties to supplement the pleadings with sufficient material to allow an informed judgment on each of the Rule’s requirements.
524 F.2d 891, 901 (9th Cir.1975). See also Westways World Travel, Inc. v. AMR Corp., 218 F.R.D. 223, 231 (C.D.Cal.2003). In Blackie, the court concluded that the lower court judge had,
analyzed the allegations of the complaint ... and the other material before him (material sufficient to form a reasonable judgment on each requirement), considered the nature and range of proof necessary to establish those allegations, determined as best he was able the future course of the litigation, and then determined that the requirements were met at that time ... That is all that is required.
Blackie, 524 F.2d at 900-01. In short, at the class certification stage, plaintiffs need only provide sufficient information for the court to form a reasonable judgment about whether plaintiffs’ claims are typical. Id.
In examining the allegations set forth in the complaint, as well as the evidence submitted by both plaintiffs and defendants, the court finds that there is sufficient information to conclude that plaintiffs’ claims are typical of the class.3
L.H. maintains that he has needed special education since childhood and requires assistance with reading. FAC ¶ 74. According to the complaint, L.H. suffered from developmental delays attributable to premature birth and a head injury during childhood. Without passing judgment on whether L.H. is in fact disabled, the court finds that the evidence submitted by plaintiffs supports the allegations. The records filed under seal by plaintiffs reveal that L.H. has a learning disability and received special education. See Reply Decl. of Gay Crosthwait Grunfeld, ¶ 11-14 & Exs. E-H.
The complaint also alleges that D.K.’s DJJ file contained diagnoses of mental disorders. See FAC ¶ 82. The sealed records submitted by plaintiffs confirm that D.K. has been diagnosed with mental disorders while in DJJ/CYA custody. See Reply Decl. of Gay Crosthwait Grunfeld, Ex. D. Again, without deciding whether or not D.K. is in fact disabled, the court concludes that plaintiffs have submitted sufficient information so as to meet the typicality requirement of Rule 23.
Moreover, part of plaintiffs’ allegation is that defendants fail to properly identify, document, and treat juvenile parolees with
10

L.H. v. Schwarzenegger, Not Reported in F.Supp.2d (2007)
disabilities. See FAC ¶ 148 (“In violation of Section 504 and the ADA, defendants have failed to develop adequate policies and practices that enable them to identify, assess or reasonably accommodate juvenile parolees with disabilities”). For example, plaintiffs aver that the Individualized Education Plan (“IEP”) and school records for L.H. are missing from his central file despite several references to the existence of these documents elsewhere in his file. See Grunfeld Decl., ¶ 15-16 & Ex. I. For the reasons explained, the court finds that plaintiffs have provided “sufficient information to form a reasonable judgment” that the typicality requirement is met. See Blackie at 901.
5. Adequacy of Representation *14 The fourth and final Rule 23(a) requirement-adequacy-requires: (1) that the class representatives and class counsel not have conflicts of interest with the class and (2) that the class be represented by qualified counsel who will vigorously prosecute the case on behalf of the class. Hanlon, 150 F.3d at 1020.
With respect to the first part of the requirement, the named plaintiffs’ interests are aligned with those of the class as a whole. The same is true for plaintiffs’ counsel. Moreover, neither party has altered the court as to any potential conflict of interest.
Defendants do, however, argue that D.K. is not a proper representative since he no longer resides in California. See Defs. Oppo. at 13. Plaintiffs concede that D.K. does presently live in Kansas. However, according to the Interstate Compact and its Rules, California retains authority to revoke parole. See Palumbo Decl., Ex. C at § 3.3.5 (Interstate Compact Bench Book for Judges and Court Personnel). In fact, the receiving state (Kansas) cannot revoke D.K.’s parole. Id. Only California can. Id. Accordingly, D.K. continues to share interests with the class.4
Defendants do not dispute that the class will be represented by qualified counsel who will vigorously prosecute the case on behalf of the class. Hanlon, 150 F.3d at 1020. The court finds that the law firms representing plaintiffs are competent and experienced. All three firms have had cases before this court on prior occasions. The court has observed first hand the high level of competence exhibited by plaintiffs’ counsel.
For these reasons, the court finds that plaintiffs have satisfied the adequacy of representation requirement of Rule 23.
6. Rule 23(b) Criteria The plaintiff class must also satisfy one of the requirements of Rule 23(b). Here, plaintiffs seek certification pursuant Rule 23(b) (2), which applies where a defendant “has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.” Fed.R.Civ.P. 23(b)(2). For a class to be certified under this section, “[i] t is sufficient if class members complain of a pattern or practice that is generally applicable to the class as a whole,” even if not all class members have been injured by the challenged practice. Walters v. Reno, 145 F.3d 1032, 1047 (9th Cir.1998).
For all the reasons previously discussed, it is evident that the class members complain of a pattern and practice that applies to the class as a whole, namely, the parole revocation proceedings. Accordingly, plaintiffs have satisfied the requirements of Rule 23(b).
With good cause appearing for all of the reasons discussed above, plaintiffs’ motion for class certification is granted. Accordingly, the court certifies the following class for all claims raised in plaintiffs’ first amended complaint: juvenile parolees in or under the jurisdiction of California, including all juvenile parolees with disabilities as that term is defined in Section 504 of the Rehabilitation Act and the ADA, who are: (i) in the community under parole supervision or who are at large; (ii) in custody in California as alleged parole violators, and who are awaiting revocation of their parole; or (iii) in custody, having been found in violation of parole and returned to custody. FAC ¶ 105.
C. USE OF PLAINTIFF’S FULL NAMES *15 The parties disagree on whether plaintiffs may proceed in pseudonym, without identifying themselves in court papers. In the interest of moving the case forward, the parties initially stipulated to allow plaintiffs to temporarily proceed in pseudonym. See November 14, 2006 stipulation and order. Defendants now move to use plaintiffs’ full names. Defendants argue that plaintiffs have little interest in proceeding anonymously, particularly when weighed against the prejudice
11

L.H. v. Schwarzenegger, Not Reported in F.Supp.2d (2007)
defendants would face and the public’s interest in full disclosure. For the reasons discussed below, the court disagrees.
1. Applicable Law In general, all parties to a suit must include their full names on the face of the complaint. Fed.R.Civ.P. 10(a) (stating that the complaint “shall include the names of all the parties”). Under this rule and the cases interpreting it, there is no express right to conceal names. Doe v. Rotsker, 89 F.R.D. 159, 161 (D.Cal.1981). However, where a party can show a substantial privacy interest that outweighs the presumption of openness, the party may proceed with anonymity. Id.
In Does I thru XXIII v. Advanced Textile Corp., 214 F.3d 1058 (9th Cir.2000), the Ninth Circuit sets the controlling legal standard for “a district court’s discretionary decision to permit a party to proceed anonymously.” Id. at 1968. The court explains that “a party may preserve his or her anonymity in judicial proceedings in special circumstances when the party’s need for anonymity outweighs prejudice to the opposing party and the public’s interest in knowing the party’s identity.” Id. The Ninth Circuit identified three circumstances in which anonymity is appropriate, two of which are relevant here: (1) when use of a party’s real name creates a risk of “retaliatory physical or mental harm” against the party; and (2) when anonymity is necessary to preserve privacy in a sensitive and highly personal matter. Id. Several factors are considered in evaluating a plaintiff’s interest in proceeding anonymously: (1) the severity of the threatened harm, (2) the reasonableness of plaintiffs’ fears, and (3) the plaintiffs’ particular vulnerability. Id. at 1068. The court addresses each element in turn.
2. The Severity of the Threatened Harm A severe harm falls somewhere between social stigma, Rotsker, 89 F.R.D. 159 (holding that professional embarrassment did not amount to severe harm), and the combination of job loss, deportation, and reprisals against family members, Advanced Textile, 214 F.3d 1058. In Advanced Textile, the court considered the threatened harm to be severe because, as non-resident workers in Saipan, plaintiffs were susceptible to deportation and economic harm if they lost their jobs in retaliation for the lawsuit. Id. at 1071.
In the case at bar, it is evident that the threatened harm faced by plaintiffs is severe. Should plaintiffs’ names be revealed, plaintiffs allege that they will face “retaliatory acts including physical harm, denial of privileges, groundless revocation of parole, addition of time to their sentences, denial of necessary medical or mental health treatment, denial of educational opportunities, and housing placements that expose them to the threat of harm.” Pls.’ Opp’n to Defs.’ Mot. at 5.
*16 Defendants argue that the severity of threatened harm is low because the only harm is parole revocation. The court cannot agree. The groundless revocation of parole is very much a severe harm as it necessarily implicates, inter alia, parolees’ liberty interests. Moreover, a groundless parole revocation exposes a parolee to a host of other possible harms including retaliation. Plaintiff D.K. alleges, “retaliation against wards by CYA/DJJ staff is part of the Youth Authority system.” Decl. of D.K. in Oppo. to Defs. Mot. As D.K. explains, “[t]here is an ‘us versus them’ mentality and when a ward mentions the lawsuits against the DJJ, such as the Farrell case, or mentions the Prison Law Office, parole agents and correctional officers become very tense and retaliate against wards by giving arbitrary time-adds, putting wards on lookdown and taking away privileges.” Id.
D.K. maintains that when he pursued a personal injury lawsuit against DJJ and filed grievances against individual DJJ employees, he faced retaliatory actions. For example, when a guard found out D.K. had filed a grievance against him, the guard began refusing D.K. access to a shower. Id. Similarly, when D.K. investigated the possibility of a lawsuit against DJJ, custody staff terminated D.K. from his job in landscaping. Id. DK’s time in custody was also extended by six months. Id. These allegations support plaintiffs’ position that the threatened harm is in fact severe.
Defendants also argue that, pursuant to the November 14 Stipulation and Order, plaintiffs’ names have been revealed to defendants so proceeding with anonymity is unnecessary. See, e.g., Doe v. Hallock, 119 F.R.D. 640, 644 (S.D.Miss.1987) (holding that there is no need for anonymity when the persons from whom retaliation is feared already know plaintiffs’ full names).
This argument is equally unavailing. The stipulation makes clear that knowledge of plaintiffs’ identities should be used only to the extent necessary to proceed with the case and only by those parties directly involved. As such, not all persons from whom retaliation is feared know the plaintiffs’ names. Pursuant to the stipulation, parole agents, counselors, guards, wardens, or other employees of DJJ do not-and will not-know plaintiffs’ real names.
12

L.H. v. Schwarzenegger, Not Reported in F.Supp.2d (2007)
In short, plaintiffs have established that there is a threat of severe harm.
3. The Reasonableness of Plaintiffs’ Fears The second prong of the Advanced Textile test requires that plaintiffs’ fears of threatened retaliation be reasonable. Advanced Textile, 214 F.3d at 1068. Fear of threatened retaliation is reasonable if a reasonable person would believe the threat could be carried out. Id. at 1071. Under this prong, the court considers whether plaintiffs were actually threatened, and may also consider evidence of a history of retaliatory practices. Id.
As previously discussed, plaintiff D.K. alleges that he was retaliated against and that there is a culture of retaliation in the DJJ. Moreover, the declarations of other persons familiar with the parole system indicate that retaliation is a common practice within the system. See Decl. of Grunfeld in Opp’n to Defs.’ Mot. (stating that ongoing investigation into DJJ practices revealed retaliatory practices); Decl. of Norman in Opp’n to Defs.’ Mot. (discussing the retaliatory practices that occurred in relation to Stevens v. Harper, No. CIV-S-01-0675 DFL-PAN). Their claims indicate that defendants and their employees have the power not only to threaten retaliation, but also to carry it out. Id. As such, plaintiffs’ fears are reasonable.
4. The Plaintiffs’ Particular Vulnerability *17 The Ninth Circuit has explained that when one party is under the control or power of the other party, the former is particularly vulnerable to retaliation. Advanced Textile, 214 F.3d at 1072 (finding that plaintiffs were subject to the will of the defendants, who could at any time terminate their employment, deport them, and affect their living situations).
Because plaintiffs are on parole and remain wards of the juvenile system, they are subject to the power and control of the defendants. Id. Moreover, plaintiffs’ status as juveniles make them, in many respects, more vulnerable than adults. Plaintiffs’ complaint sets forth the ways in which juvenile parolees are less educated, less mature and less able to understand the revocation process as compared to adult parolees. FAC ¶ 2, 5-23. These age related characteristics make plaintiffs’ particularly more vulnerable to threats and retaliatory actions.
Defendants argue that plaintiffs can find recourse within the court system should abuses occur. This argument is without merit. As the Ninth Circuit explained in Advanced Textile, “[plaintiffs] are more effectively protected from retaliation by concealing their identities than by relying on the deterrent effect of post hoc remedies.” 214 F.3d at 1071.
For these reasons, the court finds that plaintiffs are particularly vulnerable to threats of retaliation from the defendants. Given that plaintiffs have a substantial interest in proceeding anonymously, the court next addresses the possible prejudice to defendants and the public.
5. Plaintiffs’ Interests Balanced Against Prejudice to Defendants and the Public’s Interest in Full Disclosure Plaintiffs’ substantial interest in proceeding anonymously must be balanced against any prejudice to the defendant, as well as the public’s interest in full disclosure of plaintiffs’ names. Advanced Textile, at 1068. For the reasons set forth below, the court finds that any prejudice to the defendants is minimal and the public’s interest in full disclosure is outweighed by the public’s interest in cases such as this proceeding on the merits.
a. Prejudice Against the Defendant Defendants fail to demonstrate how they will be prejudiced by plaintiffs preceding anonymously. Pursuant to the November 14 stipulation and order, defendants have access to plaintiffs’ full names, which they can use to the extent needed to investigate plaintiffs’ claims.
Defendants claim that they face adverse publicity from the using initials. They argue that using initials supports the plaintiffs’ allegations that DJJ participates in retaliatory practices. Defendants claim they will be unable to disprove or challenge these allegations without the use of full names. These arguments are unconvincing. There is no evidence that revealing the full names to the public will allow defendants to better challenge or disprove the allegations.
13

L.H. v. Schwarzenegger, Not Reported in F.Supp.2d (2007)
Because defendants can use the plaintiffs’ names to the extent necessary to investigate the claims and there is no evidence to 37 suggest that using full names would alleviate adverse publicity, defendants’ interest in full disclosure is minimal.
b. Public Interest in Full Disclosure *18 In general, the public has an interest in access to judicial proceedings, which is supported by the use of full names. Advanced Textile at 1067. However, when the willingness to file suit is chilled by fear of retaliatory action, the public interest in seeing the suit move forward on its merits outweighs the public interest in knowing the plaintiffs’ names. Id. at 1073. A chilling effect is likely to occur where defendants would be able to exert leverage over plaintiffs who file suit. See id. at 1073 (discussing the effects of the employer-employee relationship). Revealing plaintiffs’ full names could have a chilling effect on this case and others like it. As previously discussed, plaintiffs are subject to DJJ control and their status as juveniles makes them uniquely vulnerable. As such, defendants could exert leverage on plaintiffs should their names be revealed, thereby chilling their willingness to bring suit. Because the public has an interest in having this case heard on the merits, anonymity is appropriate.
In balancing the prejudice to defendants against the public’s interest in having the case proceed on the merits, the scale clearly tips in favor of plaintiffs.5
For the reasons discussed herein, the court finds that the plaintiffs may move forward using only their initials. Accordingly, defendants’ motion to proceed using plaintiffs’ full names must be denied.
D. Motion to Strike Defendants request that certain “irrelevant and immaterial allegations” be struck from plaintiffs’ first amended complaint.
Defendants object to allegations regarding conditions of confinement as well as allegations pertaining to certain records. For the reasons discussed herein, defendants’ motion to strike must be denied.
1. Applicable Law Rule 12(f) provides that a court “may order stricken from any pleading ... any redundant, immaterial, impertinent, or scandalous matter.” Immaterial matter is that which has “no essential or important relationship to the claim for relief or the defenses being pleaded, or a statement of unnecessary particulars in connection with and descriptive of that which is material.” 5 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1382 (2006). Impertinent matter consists of “statements that do not pertain, and are not necessary, to the issues in question.” Id. Finally, scandalous matter is that “which improperly casts a derogatory light on someone, most typically on a party to the action.” Id.
“[T]he function of a 12(f) motion to strike is to avoid the expenditure of time and money that must arise from litigating spurious issues by dispensing with those issues prior to trial ...” Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 (9th Cir.1983).
It is well established that “motions to strike should not be granted unless it is clear that the matter to be stricken could have no possible bearing on the subject matter of the litigation.” Colaprico v. Sun Microsystems, Inc., 758 F.Supp. 1335, 1339 (N.D.Cal.1991), see also Neveu v. City of Fresno, 392 F.Supp.2d 1159, 1170 (E.D.Cal.2005) (J. Wanger). For this reason, “[m] otions to strike are disfavored and infrequently granted.” Neveu, 392 F.Supp.2d at 1170.
2. Allegations regarding conditions of confinement *19 Defendants request that the court strike allegations relating to general allegations regarding national and state-wide characteristics of juveniles and allegations regarding educational, medical, mental health and custody conditions and services at DJJ. See Defs.’ Motion to Strike at 16.
As evidenced by this court’s discussion on standing, the allegations regarding characteristics of juvenile parolees has a direct
14

L.H. v. Schwarzenegger, Not Reported in F.Supp.2d (2007)
connection to the subject matter of this litigation. Parolees’ education, medical and mental health conditions relate to their ability to fully participate in parole revocation proceedings. Similarly, these characteristics are also relevant in determining the need for legal representation. In Gagnon v. Scarpelli, the Supreme Court specifically observed that in the context of parole revocation proceedings, “the unskilled or uneducated probationer or parolee may well have difficulty in presenting his version of a disputed set of facts.” Gagnon v. Scarpelli, 411 U.S. 778, 787, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). Accordingly, the Supreme Court held that, “in passing on a request for the appointment of counsel, the responsible agency ... should consider, especially in doubtful cases, whether the probationer appears to be capable of speaking effectively for himself.” Id. at 790-791. In light of the Supreme Court’s clear concern about parolees’ ability to represent themselves, the court finds that the characteristics of juvenile parolees very much relevant.
Defendants also argue that allegations regarding conditions of confinement are irrelevant and immaterial since they are subject to a consent decree in Farrell v. Hickman, No. RG 03079344 (Alameda County Super. Ct. filed Jan. 16, 2003). Defendants argue that the allegations regarding conditions in DJJ facilities “distracts from the focus of this litigation ... and allow plaintiffs the opportunity to relitigating [sic] issues that have been resolved by another court.” Defs’. Mot. to Strike at 18.
The Farrell case pertains to conditions of confinement in DJJ facilities, including, inter alia, mental health services, medical services, and educational services.6 The Farrell case does not address parole or parole revocation proceedings. While there is some overlap in the types of issues (for example, the prevalence of juveniles with mental health problems), the legal claims in the two cases are completely separate, as are the requested remedies. Given that motions to strike are strongly disfavored, the existence of the Farrell case is not a sufficient reason which would justify striking allegations which pertain to conditions of confinement.
3. Allegations Regarding Public Records Defendants also move to strike paragraph 24 of plaintiffs’ first amended complaint. The paragraph reads:
The process of imposing parole holds and parole consideration and revocation for juveniles is an opaque system lacking clear rules or standards to guide staff, juvenile parolees, attorneys, and parents. As demonstrated by defendants’ inadequate and confused response to a Public Records Act request by plaintiffs’ counsel concerning parole procedures, even defendants are unable to articulate the way the system is intended to function.
*20 First Amended Complaint ¶ 24. Defendants contend that the statement is incorrect, inaccurate and has “no place” in the complaint. Defs.’ Mot. at 19. Defendants then proceed to explain the ways in which the records request was misdirected and extremely broad. Accordingly, defendants maintain that this statement “mischaraterizes” the truth of the circumstances. Id.
Defendants’ argument is without merit. The allegation that defendants cannot articulate how the system is intended to function is clearly related to plaintiffs’ more general claims regarding the deficiencies in the parole revocation proceedings. Determining whether the allegation is a mischaracterization of the facts is a question the court need not address on a motion to strike. Instead, the court need only evaluate whether “it is clear that the matter to be stricken could have no possible bearing on the subject matter of the litigation.” Colaprico, Inc., 758 F.Supp. at 1339. Here, the allegation clearly may bear on the subject matter of the litigation.
In sum, defendants have failed to establish that any of the challenged allegations are “redundant, immaterial, impertinent, or scandalous matter.” F.R. Civ. P. 12(f). Accordingly, the court denies defendants’ motion to strike.
III.
Conclusion
15

L.H. v. Schwarzenegger, Not Reported in F.Supp.2d (2007)
1. Defendants’ Motion to Dismiss and or Strike is DENIED. 2. Defendants’ Motion to use Plaintiffs’ Full Names is DENIED. 3. Plaintiffs’ Motion for Class Certification is GRANTED. IT IS SO ORDERED.

Footnotes

1

The ADA defines disability as: (a) a physical or mental impairment that substantially limits one or more of the major life activities

of such individual;(b) a record of such an impairment; or (c) being regarded as having such an impairment. 42 U.S.C.A. §

12102(2).

2

The court notes that these numbers do not specifically establish the exact number of juvenile parolees in California who are

disabled. However, it is not necessary that evidence of the class size be exact. A reasonable estimate of the class size, based on

common sense assumptions of numerosity, is sufficient. See Arnold, 158 F.R.D. at 448; Civic Ass’n of Deaf of New York City, Inc.

v. Giuliani, 915 F.Supp. 622, 632 (S.D.N.Y.1996) (“[P]recise quantification of the class members is not necessary because the

court may make ‘common sense assumptions’ to support a finding of numerosity.”); Retired Chicago Police Ass’n v. City of

Chicago, 141 F.R.D. 477, 484-85 (N.D.Ill.1992) (numerosity finding may be based on common sense assumptions), aff’d in part,

rev’d in part on other grounds, 7 F.3d 584 (7th Cir.1993)

3

The court also notes in passing that even if it were appropriate for the court to decide whether plaintiffs are disabled, the evidence

submitted by defendants is inconclusive. The excerpts of plaintiffs’ records which were submitted by defendants reveal that both

L.H. and D.K. have problems. Neither the defendants, nor the court, is in a position to render an expert opinion as to whether or not

these problems are related to disabilities. The records submitted by defendants fail to demonstrate that L.H. and D.K. are not

disabled; instead, it simply reveals that these youths have problems.

4

The proposed class is defined as those juveniles who are: (i) in the community under parole supervision or who are at large; (ii) in

custody in California as alleged parole violators, and who are awaiting revocation of their parole; or (iii) in custody, having been

found in violation of parole and returned to custody. See FAC ¶ 105.

5

Plaintiffs also make a compelling argument regarding the sensitivity of the plaintiffs’ juvenile records. Because the court finds that

anonymity is appropriate under the Advanced Textile balancing test, the plaintiffs’ second argument is not addressed.

6

Plaintiffs represent that the Farrel case is in the remedial phase.

16

 
 L.H. v. Schwarzenegger, Not Reported in F.Supp.2d (2007)
2007 WL 1501018 Only the Westlaw citation is currently available.
United States District Court, E.D. California.
L.H., A.Z., D.K., and D.R., on behalf of themselves and all other similarly situated juvenile parolees in California, Plaintiffs, v.
Arnold SCHWARZENEGGER, et al., Defendants.
No. CIV S-06-2042 LKK GGH. | May 21, 2007.
Attorneys and Law Firms
Maria V. Morris, Meghan Regina Lang, Michael Bien, Sarah Laubach, Rosen, Bien & Galvan, Karen Kennard, Kristen A. Palumbo, Briana Lynn Morgan, Bingham McCutchen LLP, Carole Shauffer, Corene Thaedra Kendrick, Susan Lynn Burrell, San Francisco, CA, Donald Specter, San Quentin, CA, Gay Crosthwait Grunfeld, Rosen Loeb and Pines, Sherman Oaks, CA, for Plaintiffs.
Katherine Kylin Nelson, James Michael Sobolewski, Michelle Leigh Angus, Attorney General’s Office for the State of California, Sacramento, CA, for Defendants.
Opinion
ORDER
GREGORY G. HOLLOWS, United States Magistrate Judge.
*1 Previously pending on this court’s law and motion calendar for May 17, 2007, was plaintiffs’ motion to compel compliance with this court’s April 2, 2007 order. Maria Morris appeared for plaintiffs. Michelle Angus, Stephen Acquisto, and Katherine Nelson represented defendants. Having heard oral argument and reviewed the joint statement, the court now issues the following order.
Plaintiffs’ motion concerns this court’s April 2, 2007 order, wherein defendants’ request for extension of time to respond to discovery requests was denied. The court directed defendants to file and serve responses by April 9, 2007. All objections which were not privilege based, e.g., attorney-client privilege, bona fide privacy privilege assertions, or work product immunity, were found to be waived.
Plaintiffs now contend that defendants have delayed production of discovery to such an extent that they have exhibited bad faith, and sanctions are warranted. According to plaintiffs, although defendants did serve responses on the ordered date, they asserted objections to almost every interrogatory, request for admission, and request for documents, in direct violation of that order. Plaintiffs claim that more than a month after the court’s denial, discovery responses are still outstanding. Plaintiffs request monetary and issue sanctions.
Plaintiffs fail to recognize the efforts undertaken by defendants to comply with the court’s order. Defendants have produced 10,000 pages of documents which is not necessarily a small amount for a class action. Defendants represent that this production constitutes the majority of hard copy documents responsive to plaintiffs’ 124 document requests. Defendants indicate that they have been amending their responses pursuant to the court’s prior order. Additionally, defendants represent that they have increased the number of attorneys working on this case from two to five, and also have a paralegal assigned to it.
While compliance with the court’s orders are not subject to unilateral modification by defendants, some recognition of the realities of discovery in this case are required. Defendants (in reality, the state agencies which have control over plaintiffs)
1

L.H. v. Schwarzenegger, Not Reported in F.Supp.2d (2007) are not litigating machines, nor are their responsibilities primarily concerned with responding to discovery requests. Rather, a state agency’s resources are characterized by the phrase, “zero sum game,” in which tasks imposed by litigation necessarily reduce the ability of an agency to carry out its primary responsibilities. Make no mistake, the undersigned is not excusing discovery obligation non-compliance, but rather simply encouraging plaintiffs to have a little empathy in that discovery is relatively easy to request, and sometimes onerous to satisfy. Therefore, the court declines to find bad faith or even prejudice to plaintiffs’ case at this point in time. Nevertheless, empathy has its limits; discovery is outstanding in violation of the previous order. Should defendants fail to comply with the instant order requiring full production within thirty days, plaintiffs may bring another motion for sanctions. At that time, if the court finds that defendants have not complied with this order, serious sanctions will result. *2 Accordingly, IT IS HEREBY ORDERED that: 1. Plaintiffs’ motion to compel compliance with this court’s April 2, 2007 order, filed April 19, 2007, is granted in part and denied in part; 2. Defendants shall file a schedule for production of outstanding discovery within two days of the May 17, 2007 hearing. 3. Defendants shall produce all outstanding discovery, including electronic discovery, within thirty days of the May 17, 2007 hearing. Failure to comply with this order will result in sanctions.
2

 
 L.H. v. Schwarzenegger, Not Reported in F.Supp.2d (2007)
2007 WL 1531420 Only the Westlaw citation is currently available.
United States District Court, E.D. California.
L.H., A.Z., D.K., and D.R., on behalf of themselves and all other similarly situated juvenile parolees in California, Plaintiffs, v.
Arnold SCHWARZENEGGER, et al., Defendants.
Civ. No. S-06-2042 LKK GGH. | May 25, 2007.
Attorneys and Law Firms
Karen Kennard, Kristen A. Palumbo, Briana Lynn Morgan, Bingham McCutchen LLP, Maria V. Morris, Meghan Regina Lang, Michael Bien, Sarah Laubach, Rosen Bien & Galvan, LLP, Carole Shauffer, Corene Thaedra Kendrick, Susan Lynn Burrell, San Francisco, CA, Donald Specter, San Quentin, CA, Gay Crosthwait Grunfeld, Rosen Loeb and Pines, Sherman Oaks, CA, for Plaintiffs.
James Michael Sobolewski, Katherine Kylin Nelson, Office of the Attorney General, Michelle Leigh Angus, Department of Justice Attorney General’s Office, Sacramento, CA, for Defendants.
Opinion
ORDER
GREGORY G. HOLLOWS, U.S. Magistrate Judge.
*1 Previously pending on this court’s law and motion calendar for April 26, 2007, was plaintiffs’ motion to compel production of documents, filed March 22, 2007.1 Gay Grunfeld, Sarah Laubach and Maria Morris appeared for plaintiffs. Stephen Acquisto and Michelle Angus appeared for defendants. Having now reviewed the joint statement and heard oral argument, the court issues the following order.
BACKGROUND This is a class action lawsuit wherein plaintiffs are juvenile parolees who allege due process violations throughout the parole revocation process, as well as violations of the Americans with Disabilities Act (“ADA”) by the California Department of Corrections and Rehabilitation (“CDCR”), the Division of Juvenile Justice (“DJJ”), and Board of Parole Hearings (“BPH”). This case has been related to Valdivia v. Schwarzenegger, Civ.S. 94-671 LKK GGH, which involves the same issues as applied to adult parolees.
DISCUSSION This motion relates to plaintiffs’ notice of deposition served on defendant John Monday, Executive Director of the Board of Parole Hearings, seeking documents. Defendants produced some documents but refused to produce documents on two topics: (1) any budget or funding requests related to improving parole revocation proceedings; and (2) any documents, including budget or funding requests, related to providing legal assistance to wards in parole revocation hearings. At issue are 201 documents for which defendants variously claim self-critical analysis privilege, deliberative process privilege, privileges under Cal. Gov’t.Code § 6255, Fed.R.Evid. 501, Cal. Evid.Code § 1040, work product immunity, and attorney-client privilege.
1

L.H. v. Schwarzenegger, Not Reported in F.Supp.2d (2007)
The two document requests at issue are:
ALL DOCUMENTS and COMMUNICATIONS reflecting arrangements between DJJ and attorneys, to provide legal assistance to WARDS in PAROLE REVOCATION PROCEEDINGS, including contracts, budgets, budget requests OR requests for funds to provide counsel to WARDS.
ALL DOCUMENTS and COMMUNICATIONS that RELATE to budgets, budget proposals OR requests for funds for reforms, improvements OR changes of PAROLE REVOCATION PROCEEDINGS.
Joint Stmt. at 15.
Plaintiffs assert that the privileges are claimed in a “boilerplate” manner, without specific factual justification.
Defendants claim that the only documents not produced in response to these requests are draft BCPs (Budget Change Proposals) or documents that discuss these drafts. They argue that these BCPs are not relevant because they discuss requests for funding for various program changes and have no bearing on plaintiffs’ claims, and furthermore they are privileged, primarily as deliberative process.
The court has now reviewed the amended final privilege log and the documents submitted at the hearing for in camera review which constitute all the documents listed in the privilege log, as well as supporting papers.
A. Deliberative Process Privilege Defendants claim this privilege over all 201 documents which are responsive to the two document requests.
*2 The court is mindful that privileges are narrowly construed because they impede the full and fair discovery of the truth, Eureka Financial Corp. v. Hartford Acc. and Indemnity Co., 136 F.R.D. 179, 183 (E.D.Cal.1991), and the undisputed proposition that the party asserting the privilege has the burden to establish its applicability, see, e.g., United States v. O’Neill, 619 F.2d 222, 227 (3rd Cir.1980).
The Supreme Court has pronounced that privileges are not favored:
The common-law principles underlying the recognition of testimonial privileges can be stated simply. “ ‘For more than three centuries it has now been recognized as a fundamental maxim that the public ... has a right to every man’s evidence. When we come to examine the various claims of exemption, we start with the primary assumption that there is a general duty to give what testimony one is capable of giving, and that any exemptions which may exist are distinctly exceptional, being so many derogations from a positive general rule.’ “
Jaffee v. Redmond, 518 U.S. 1, 116 S.Ct. 1923, 1927, 135 L.Ed.2d 337 (1996) (citing United States v. Bryan, 339 U.S. 323, 331, 70 S.Ct. 724, 730, 94 L.Ed. 884 (1950) (quoting 8 J. Wigmore, Evidence § 2192, p. 64 (3d ed.1940)). See also and generally, Maricopa Audubon Soc. v. U.S.F.S., 108 F.3d 1082, 1085-86 (9th Cir.1997).
On the other hand, if a privilege is applicable within its narrow confines, the privilege must be applied according to the law in an ungrudging manner. The court will neither over-expansively or under-expansively apply a privilege.
1. Procedural Prerequisites Executive privileges asserted by a government agency have procedural prerequisites:
There must be a formal claim of privilege, lodged by the head of the department which has control over the matter, after actual personal consideration by that officer. The court itself must determine whether the circumstances are appropriate for a claim of privilege ...
United States v. O’Neill, 619 F.2d at 225 (quoting United States v. Reynolds, 345 U.S. 1, 7-8, 73 S.Ct. 528, 97 L.Ed. 727 (1953). These requirements have been applied to all forms of “executive” privilege. Yang v. Reno, 157 F.R.D. 625, 632 (1994); Martin v. Albany Business Journal, Inc., 780 F.Supp. 927, 932 (N.D.N.Y.1992). Courts have allowed the claim to be
2

L.H. v. Schwarzenegger, Not Reported in F.Supp.2d (2007)
made by a person in an executive policy position. See Reynolds 345 U.S. at 8 n. 20, 73 S.Ct. at 532 n. 20 (“The essential matter is that the decision to object should be taken by the minister who is the political head of the department, and that he or she should have seen and considered the contents of the documents and himself have formed the view that on grounds of public interest they ought not to be produced ...”). See also Scott Paper Co., 943 F.Supp. 501 (E.D.Pa.1996); Yang, 157 F.R.D. at 632-34 & n. 4 (1994) (considering official status necessary to invoke privilege, collecting cases, and finding executive secretary of National Security Council could not invoke governmental privileges); Mobil Oil Corp. v. Department of Energy, 102 F.R.D. 1, 6 (N.D.N.Y.1983) (official invoking the privilege may be an agency head or a subordinate with high authority). Some jurisdictions do not allow the agency head to delegate the authority to claim the privilege. Scott, 943 F.Supp. at 502. Other jurisdictions which allow the authority to be delegated require the delegation to be accompanied by detailed guidelines regarding the use of the privilege. Id at 503.
*3 Of critical importance, “the information for which the privilege is claimed must be specified, with an explanation why it properly falls within the scope of the privilege.” In re Sealed Case, 856 F.2d 268, 271 (D.C.Cir.1988) (law enforcement privilege) (emphasis added). An official cannot invoke a privilege without personally considering the material for which the privilege is sought. Yang, 157 F.R.D. at 634. In the instant case, defendants have presented declarations by John Monday, Executive Officer of the Board of Parole Hearings (BPH) for the California Department of Corrections and Rehabilitation (CDCR), and Bernard Warner, Chief Deputy Secretary, Division of Juvenile Justice (DJJ) for the California Department of Corrections and Rehabilitation (CDCR), in support of their privilege claims. Monday and Warner are proper agency “heads.” Monday’s declaration states that he provided the BCPs in response to his notice of deposition and document request. The declaration also states that based on his knowledge, he believes the documents are pre-decisional and deliberative. Warner’s declaration echoes this opinion that the documents meet the requirements for the deliberative process privilege.
One must use a rule of reason in determining whether the procedural requirements of invoking the deliberative process privilege have been satisfied. There may be cases in which every single document withheld is unique unto itself, and should be declared privileged only after a document-by-document analysis or, as is the case here, the documents do not vary in their type or purpose. In this latter case, a collective judgment on the need for invoking deliberative process may be given. Defendants have essentially complied with a collective analysis in this case as the budget change proposal documents are all of the same type and purpose. As stated by John Monday in his declaration, the policies and procedures that go into budget proposals are compiled by a committee of individuals, and are evaluated on a continuing basis. As head of these review functions, Monday is qualified to submit a general declaration of this sort as a statement of personal consideration.
2. Substantive Standards The deliberative process privilege protects the quality of agency decisions by allowing candor in formulating policy, and encouraging public review based on the decision itself rather than the considerations that contributed to the decision. N.L.R.B. v. Sears, Roebuck & Co., 421 U.S. 132, 151-152, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975). Its aim is to protect the policy making process. It requires a two step review by the court. See Carter v. U.S. Dept. Of Commerce, 307 F.3d 1084, 1089 (9th Cir.2002) (stating standards and holding that standards for invoking deliberative process in a FOIA context are identical to those in civil discovery).
First, the matter protected must be pre-decisional, generated before the adoption of an agency policy or decision. Predecisional matters are prepared “in order to assist an agency decisionmaker in arriving at his decision.” Renegotiation Board v. Grumman Aircraft Eng’g Corp., 421 U.S. 168, 184, 95 S.Ct. 1491, 1500, 44 L.Ed.2d 57 (1975); accord, Assembly of State of Cal. v. U.S. Dept. of Commerce, 968 F.2d 916, 920-21 (9th Cir.1992). Predecisional material is distinguished from material supporting a decision already made. Id. Accordingly, in determining whether the “predecisional” prong applies, this circuit looks first to the purpose of the matter to be discovered. See Assembly of State of Cal., 968 F.2d at 920-21 (looking to the purpose for which a document was prepared to determine whether it meets the “predecisional” prong).
*4 Second, the matter to be protected must be deliberative, concerning opinions, recommendations, or advice about agency policies. F.T.C. v. Warner Communications Inc., 742 F.2d 1156, 1161 (9th Cir.1984). The privilege applies if material to be discovered reveals the mental processes of decision makers. Assembly of State of Cal., 968 F.2d at 921. If material sought to be discovered would “inaccurately reflect or prematurely disclose the views of the agency,” it would come within the deliberative process privilege. National Wildlife Federation v. U .S. Forest Serv., 861 F.2d 1114, 1118 (9th Cir.1988) (citing Coastal States Gas Corp. v. Department of Energy, 617 F.2d 854, 866 (D.C.Cir.1980)).
Although facts are not protected by the privilege, if the facts are inextricably interwoven with the deliberative process, the entire matter may be protected by the privilege. National Wildlife Federation, 861 F.2d at 1116 (explaining that if the
3

L.H. v. Schwarzenegger, Not Reported in F.Supp.2d (2007)
disclosure of facts would necessarily reveal the deliberative process, the information is protected). It is important to emphasize, as the Ninth Circuit has, that the privilege applies to the deliberative process as well as deliberative material. National Wildlife Fed. v. U.S. Forest Service, 861 F.2d at 1118. “In other words, the document is considered to be part of the ‘deliberative process’ as long as it is ‘actually....related to the process by which policies are formulated.’ “ Id. (Emphasis in original).
The deliberative process privilege is a qualified one and can be overridden if the need for accurate fact-finding outweighs the government’s interest in non-disclosure. F.T.C. v. Warner Communications, Inc., 742 F.2d at 1161. Three relevant factors are weighed to determine if disclosure is appropriate:
1) the relevance of the evidence; 2) the availability of other evidence; 3) the government’s role in the litigation; 4) the extent to which disclosure would hinder frank and independent discussion regarding contemplated policies and decisions.
Id.
3. Analysis Plaintiffs contend that the withheld documents relate to whether the Valdivia requirement that prompt preliminary hearings regarding probable cause for detention be held soon after a parolee is detained, is being applied to juveniles, and contain discussions on this issue. Such documents, they argue, are therefore highly relevant and not available from any other source.
Plaintiffs provide non-binding cases suggesting that where government misconduct is at issue, this privilege has been disallowed. Plaintiffs assert there may have been misconduct here, based on the log which indicates defendants considered and debated constitutional requirements but then refused to provide them.
Defendants argue that since the BCPs are drafts, they are but a prelude to the governor’s budget, and are therefore pre-decisional, deliberative, and protected. Disclosure of this information would prevent candid discussions to consider changes in the budget. Because these documents do not constitute final agency decisions or positions, but are opinions, suggestions or requests involved in the budget process, they should be protected.
*5 A review of the documents submitted by defendants which are enumerated in their privilege log, indicates that they are all pre-decisional. (Angus Decl., Exh. E.) As the name suggests, BCPs refer to proposals, and by their very nature they indicate the lack of a final decision. For example, some of the documents refer to requests for a number of positions and a number of dollars, but the numbers were not yet filled in. All the documents refer to predictions of budgeting needs in future. The terms “projected” and “requested” are used continually throughout. Furthermore, the documents were prepared in order to assist the decisionmaker in coming to a decision. To the extent that any documents were prepared by Monday or Warner, they were prepared with the goal of coming to a final decision. Whether the documents were prepared for these officials or by them, they qualify as pre-decisional. Renegotiation Board, 421 U.S. at 184, 95 S.Ct. at 1500.
The documents are also deliberative in nature. They reveal the opinions of the individuals contributing to the decisionmaking process, and include recommendations and predictions of consequences based on alternative recommendations. The thought processes of the decisionmakers are readily apparent. These predictions, recommendations and thought processes may have changed during the course of the deliberations, and the documents may not accurately reflect the final views of the agencies involved. The documents are quintessential examples of those shielded by the deliberative process privilege which protects governmental agencies from disclosing the pre-policy development process. If they were produced, the privilege might as well not exist.
An example of a confirmed deliberative process close to the issues here is shown in the National Wildlife case. Material sought in that case included, inter alia, cost-benefit analyses of various plans. The Ninth Circuit concluded: “These materials represent the tentative opinions and recommendations of Forest Service employees on matters instrumental to the formulation of policies....” Id. At 1121. In this case, the formulation of the budget is one of the foundational aspects of policy formulation in state government. The withheld BCPs and related information are an integral part of that entire budget process. Plaintiffs themselves argue-“Budget Change Proposals, or BCPs, are government documents that often include significant and important information about a particular agency’s remedial plans, such as the background and history of a problem, cost estimates to remedy the problem, and the staff and schedule proposed..... The BCPs being withheld here are no exception.” Joint Statement at 15-16 (emphasis added).
4

L.H. v. Schwarzenegger, Not Reported in F.Supp.2d (2007)
As to plaintiffs’ claim of a misconduct exception which, in essence, swallows the whole privilege, the amended complaint alleges that defendants’ policies violate due process and equal protection, deny effective assistance of counsel, and deny rights under the Americans with Disabilities Act, with respect to granting, extending or revoking parole. There is no allegation of government misconduct as plaintiffs’ cases seem to require. Plaintiffs cite In re Sealed Case, 121 F.3d 729, 746 (D.C.Cir.1997), Allen v. Woodford, 2007 WL 309945 (E.D.Cal. Jan.30, 2007), and In re Subpoena Duces Tecum Served on Office of Comptroller of Currency, 145 F.3d 1422, 1425 (D.C.Cir.1998), for the proposition that the privilege disappears where there is reason to believe government misconduct has occurred. Sealed Case is inapposite in involving the presidential privilege as the court found that the deliberative process privilege did not apply to the documents at issue. The court pointed out that one of the differences between the deliberative process privilege and the presidential privilege was that although misconduct must not be shielded, there must still be a showing of need which does not turn on the alleged misconduct, but must show that the documents are necessary for the government to fulfill its responsibilities. 121 F.3d at 746, citing Senate Select Committee on Presidential Campaign Activities v. Nixon, 498 F.2d 725, 731 (D.C.Cir.1974). Furthermore, government misconduct must have been charged. Id. at 751. Not only is this case inapplicable based on the privilege applied, it is not binding on this circuit. Furthermore, government misconduct of the type indicated in Sealed Case has not been alleged in this case. See e.g. Alexander v. F.B.I., 193 F.R.D. 1, 10 (D.D.C.2000) (denying deliberative process privilege where White House improperly obtained FBI files in violation of Privacy Act, as issue was misconduct, i.e. whether files were obtained through unintentional mistake or intent).
*6 Allen, 2007 WL 309945, is also distinguishable and not binding. The holding there indicated that the deliberative process privilege did not apply because the deliberations were not policy formulation, but rather one specific incident, a physician’s alleged malpractice on a prisoner, after the prison allegedly had been notified of this doctor’s previous injury to another patient. The court found the misconduct exception to apply where the documents might reveal the prison’s prior knowledge. Id. at *5.
Plaintiffs’ third cited case found that the deliberative process privilege did not apply at all. In re Subpoena Duces Tecum Served on Office of Comptroller of Currency, 145 F.3d at 1425. The court did note the district court’s recognition that the misconduct exception to the privilege did not fit the situation where there was no alleged taint of misconduct, but rather attacked the actual goals of the regulators. In a footnote, the court gave a good explanation of the limits of the misconduct exception. “The word ‘misconduct’ does not even really fit this situation, because the government could have violated the Bankruptcy Code without the nefarious motives that the word ‘misconduct’ implies.” Id. at 425, n. 2. One court emphasizes the problem with the misconduct exception, stating that the very basis for the existence of the privilege would be undermined if the privilege is not found as its purpose is to protect government decisionmaking from the chill of potential disclosure. Arizona Rehabilitation Hospital, Inc., 185 F.R.D. 263, 267, n. 3 (D.Az.1998). Cf. Newport Pacific Inc. v. County of San Diego, 200 F.R.D. 628, 640 (S.D.Cal.2001) (finding that allegations of violations of due process and equal protection merit exception to deliberative process privilege).
Plaintiffs’ misconduct exception, as broadly asserted by them, lacks reasonable boundaries. The government is not often sued because the plaintiff alleges wholesome activities on the part of the government. Officials are sued because they are alleged to have engaged in misconduct of some sort, i.e., actions taken in violation of law or the Constitution. Plaintiffs’ expansive misconduct exception interpretation to deliberative process has never been endorsed by the Ninth Circuit or Supreme Court. Plaintiff’s suggestion at argument that deliberative process has been relegated only to third party subpoena actions finds no support in the law.
Nor does plaintiffs’ contention that the BCPs are highly relevant to their claims hold water. Whether defendants were good, bad, or indifferent in their alleged intent to violate plaintiffs’ rights is not particularly significant in this injunctive relief case. Either plaintiffs’ due process, equal protection and ADA rights were violated, or they were not. Plaintiffs do not assert that they must demonstrate any state of mind on the part of defendants in order to prevail. The court questioned defendants whether they were raising some type of “feasibility” defense, in which case, of course, budget documents would be very relevant. Defendants represented that they were not, and their answer in this case contains no such affirmative defense. While the formulation of a remedy in this case, if plaintiffs were to prevail, may well take into account economic concerns, these economic concerns are universally understood without the necessity of revelation of deliberative process, and will not be the deciding remedial factor in any event. Moreover, plaintiffs have other evidence available to them, such as final budgets for the years in question.
*7 Although defendants have some valid claims of other privileges and protections over a number of documents submitted for in camera review (self-critical analysis not being one of them), the court finds that all documents are protected by the deliberative process privilege. Therefore, other privileges will not be addressed.
5

L.H. v. Schwarzenegger, Not Reported in F.Supp.2d (2007)

CONCLUSION Accordingly, IT IS ORDERED that plaintiffs’ motion to compel production of documents, filed March 22, 2007, is denied.

Footnotes

1

Plaintiffs’ motion to compel entry of protective order, also filed March 14, 2007, and heard on April 26, 2007, was resolved by

entry of a protective order, filed May 14, 2007.

6

 
 L.H. v. Schwarzenegger, Not Reported in F.Supp.2d (2007)
2007 WL 2009807 Only the Westlaw citation is currently available.
United States District Court, E.D. California.
L.H., A.Z., D.K., and D.R., on behalf of themselves and all other similarly situated juvenile parolees in California, Plaintiffs, v.
Arnold SCHWARZENEGGER, Governor, State of California, et al, Defendants. No. CIV. S-06-2042 LKK/GGH. | July 6, 2007.
Attorneys and Law Firms Carole Shauffer, Corene Thaedra Kendrick, Geoffrey Thomas Holtz, Kristen A. Palumbo, Briana Lynn Morgan, Bingham McCutchen, LLP, Susan Lynn Burrell, Maria V. Morris, Meghan Regina Lang, Michael Bien, Sarah Laubach, Rosen, Bien & Galvan, LLP, San Francisco, CA, Donald Specter, San Quentin, CA, Gay Crosthwait Grunfeld, Rosen Loeb and Pines, Sherman Oaks, CA, for Plaintiffs. James Michael Sobolewski, Michelle Leigh Angus, Katherine Kylin Nelson, Attorney General’s Office of the State of California, Sacramento, CA, William C. Kwong, Minami Tamaki, LLP, San Francisco, CA, for Defendants. Opinion
ORDER
LAWRENCE K. KARLTON, United States District Court Senior Judge. *1 Plaintiffs, a class of juvenile parolees, allege that the California parole revocation system deprives them of due process and violates the Americans with Disabilities Act. Defendants are the California Department of Corrections and Rehabilitation (“CDCR”), Division of Juvenile Justice (“DJJ”), and Board of Parole Hearings (“BPH”).1 Pending before the court is plaintiffs’ request for reconsideration of the Magistrate Judge’s May 25, 2005 Order (“Order”) denying plaintiffs’ motion to compel production of documents. For the reasons explained herein, plaintiffs’ motion for reconsideration is GRANTED.
I.
Facts & Procedural History At issue are 201 documents consisting of Budget Change Proposals (“BCPs”) prepared by the DJJ and BPH for fiscal years 2004-05, 2005-06, 2006-07, and 2007-08, as well as memoranda and emails between various CDCR employees regarding clarification of figures for BCPs, BCP approval and appeal, and legal strategy.2 The documents at issue relate to two document requests that defendants refused to comply with based on a variety of privileges, including the deliberative process privilege. Order at 4-5. The pertinent portions of the two document requests at issue are:
DOCUMENT REQUEST NO. 9: ALL DOCUMENTS and COMMUNICATIONS reflecting arrangements between DJJ and attorneys, to provide legal assistance to WARDS in PAROLE REVOCATION PROCEEDINGS including ... budgets, budget requests, or requests
1

L.H. v. Schwarzenegger, Not Reported in F.Supp.2d (2007)
for funds to provide counsel to WARDS.
DOCUMENT REQUEST NO. 10:
ALL DOCUMENTS and COMMUNICATIONS that RELATE to budgets, budget proposals OR requests for funds for reforms, improvements OR changes of PAROLE REVOCATION PROCEEDINGS.
Joint Statement Re: Plaintiffs’ Motion to Compel at 15 (“Joint Statement”). Plaintiffs filed a motion to compel production of these documents on March 22, 2007. Unable to reach a compromise after several meet and confer discussions, the parties filed a Joint Statement regarding this discovery disagreement on April 19, 2007. Oral argument was held on April 26, 2007 before the Magistrate Judge assigned to this case.
The Magistrate Judge held that all documents in question are protected by the deliberative process privilege and are therefore not discoverable. Because the Magistrate Judge found that the documents in question were protected by the deliberative process privilege, he did not reach the question of whether the documents were protected under the other two privileges asserted by defendants, namely, the work product doctrine and the attorney-client privilege.
II.
Standards
A. Standard for Review of Magistrate Judge’s Decision Fed.R.Civ.P. 72(a) provides that non-dispositive pretrial matters may be decided by a Magistrate Judge, subject to reconsideration by the district judge. The district judge shall, upon reconsideration, modify or set aside any part of the magistrate judge’s order which is found to be “clearly erroneous” or “contrary to law.” See 28 U.S.C. § 636(b)(1)(A); Local Rule 303(f); Ainsworth v. Vasquez, 759 F.Supp. 1467, 1469 (E.D.Cal.1991).
*2 Discovery motions are non-dispositive pretrial motions within the scope of Rule 72(a) and 28 U.S.C. § 636(b)(1)(A), and thus subject to the “clearly erroneous or contrary to law” standard of review. Brown v. Wesley’s Quaker Maid, Inc., 771 F.2d 952, 954 (6th Cir.1985). “A finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948); Nat’l Wildlife Fed’n v. United States Forest Serv., 861 F.2d 1114, 1116 (9th Cir.1988).
B. Standard for Asserting the Deliberative Process Privilege The deliberative process privilege protects materials created by administrative agencies during the decision-making process. Nat’l Wildlife, 861 F.2d at 1114. The purpose of the privilege is to protect the quality of agency decisions by shielding internal discussions from public scrutiny which might discourage the free-flow of ideas and frank discussion of legal or policy matters. NLRB v. Sears Roebuck & Co., 421 U.S. 132, 150, 95 S.Ct. 1504, 44 L.Ed.2d 29, (1975).
In order for documents to be protected under the privilege, two preliminary procedural requirements must be satisfied: (1) there must be a “formal claim of privilege, lodged by the head of the department which has control over the matter, after actual personal consideration by that officer,” United States v. Rozet, 183 F.R.D. 662, 665 (N.D.Cal.1998) (citing Unites States v. Reynolds, 345 U.S. 1, 7-8, 73 S.Ct. 528, 97 L.Ed. 727 (1953)), and (2) the information for which privilege is claimed must be specified and “precise and certain reasons” given for asserting confidentiality. United States v. O’Neill, 619 F.2d 222, 226 (3d Cir.1980). See also In re Sealed Case, 856 F.2d 268 (D.C.Cir.1988); Moore’s Federal Practice, Civil § 26.52.
In addition to these procedural requirements, the party asserting the privilege must prove that the documents in question are “predecisional” and “deliberative.” Carter v. United States Dep’t of Commerce, 307 F.3d 1084, 1089 (9th Cir.2002). This dual requirement reflects the privilege’s purpose of protecting the deliberative process leading up to those decisions. Nat’l Wildlife Fed’n, 861 F.2d at 1117.
2

L.H. v. Schwarzenegger, Not Reported in F.Supp.2d (2007)
The deliberative process privilege is a qualified privilege rather than an absolute privilege. Therefore, even if the privilege applies, the court must apply a balancing test whereby a litigant may obtain privileged documents “if his or her need for the materials and the need for accurate fact-finding override the government’s interest in non-disclosure.” FTC v. Warner Commc’ns., Inc., 742 F.2d 1156, 1161 (9th Cir.1984); see also Rozet, 183 F.R.D. 662 at 665 (“[privilege] may be overcome by a strong showing of need on the part of the party seeking discovery”).
In balancing the need to preserve the integrity of internal government deliberations with the need for open discovery, the court considers the following factors: (1) the relevance of the evidence sought to the litigation; (2) the availability of comparable evidence from other sources; (3) the government’s role in the litigation; and (4) the extent to which disclosure would hinder frank and independent discussion regarding contemplated policies and decisions. FTC v. Warner, 742 F.2d at 1161. The court may also take into account (5) the interest of the litigant, and society, in accurate judicial fact finding, North Pacifica, LLC v. City of Pacifica, 274 F. Supp 2d 1118, 1122 (N.D.Cal.2003), United States v. Irvin, 127 F.R.D. 169, 173 (C.D.Cal.1989); and (6) the seriousness of the litigation and the issues involved, Irvin, 127 F.R.D. at 174.
*3 As with privileges generally, the deliberative process privilege should be narrowly construed because confidentiality may impede full and fair discovery of the truth. See Eureka Fin. Corp. v. Hartford Accident and Indem. Co., 136 F.R.D. 179, 183 (E.D.Cal.1991) (citing Weil v. Investment/Indicators, Research and Management, Inc., 647 F.2d 18, 24 (9th Cir.1981)); see also North Pacifica, 274 F.Supp.2d at 1122 (deliberative process privilege is “strictly confined within the narrowest possible limits consistent with the logic of its principles.”)
III.
Analysis
For the reasons discussed herein, the court concludes that the Magistrate Judge did not err in finding that the documents are protected by the deliberative process privilege. However, given that the privilege is qualified, it appears to the court that plaintiffs may obtain at least some of the documents in question as their “need for the materials and the need for accurate fact-finding override the government’s interest in non-disclosure.” FTC v. Warner, 742 F.2d at 1161.
A. Procedural Requirements As a preliminary matter, plaintiffs assert that the Magistrate Judge erred in finding that the privilege was asserted by the appropriate head of the agency.3 The court cannot agree.
In order to assert the deliberative process privilege, there must be a “formal claim of privilege, lodged by the head of the department which has control over the matter, after actual personal consideration by that officer,” Rozet, 183 F.R.D. at 665 (citing Unites States v. Reynolds, 345 U.S. 1, 7-8, 73 S.Ct. 528, 97 L.Ed. 727 (1953)).
The Supreme Court has provided the following standard for the invocation of executive privileges such as the deliberative process privilege:
There must be a formal claim of privilege, lodged by the head of the department which has control over the matter, after actual personal consideration by that officer. The court itself must determine whether the circumstances are appropriate for a claim of privilege ...
Reynolds, 345 U.S. 1, 7-8, 73 S.Ct. 528, 97 L.Ed. 727 (1953).
The purpose of this requirement is to assure “that some one in a position of high authority” within the agency has examined the materials “from a vantage point involving both expertise and an overview-type perspective,” and actually believes the items to be privileged. Rozet, 183 F.R.D. at 665.4
3

L.H. v. Schwarzenegger, Not Reported in F.Supp.2d (2007)
Here, the privilege was asserted by John Monday, Executive Officer of the BPH and Bernard Warner, Chief Deputy Secretary of the DJJ. Plaintiffs argue that the privilege should have been asserted by James Tilton, as the head of the CDCR, or an executive official with authority over budget decisions such as the Governor, a high level official in the Governor’s office, or the Director of the Department of Finance. Pls.’ Req. for Reconsideration at 10-11, (“Pls.’ Req.”).
The Magistrate Judge’s conclusion that John Monday and Bernard Warner were appropriate department heads to assert the privilege is not clearly erroneous or contrary to law. The BCPs in question are the work product of the DJJ and BPH departments of the CDCR. The memoranda and emails are primarily between employees in these departments, discussing clarification of figures for the BCPs, decisions to appeal Department of Finance (“DOF”) decisions regarding these BCPs, and legal strategies. It is clear that the DJJ and BPH are the relevant departments in this matter. Because the Mr. Monday and Mr. Warner are high level officials within these departments, the court declines to find that the Magistrate Judge was clearly erroneous in his determination that these two officials possessed the requisite expertise and overview perspective to properly assert the deliberative process privilege over materials created within their departments.
B. “Predecisional” and “Deliberative” Documents *4 Plaintiffs also contend that the Magistrate Judge erred in concluding that the documents in question are predecisional. Pls.’ Req. at 11.5 The court cannot agree.
In the Ninth Circuit, “[an] agency must identify a specific decision to which the document is predecisional” in order to successfully assert the deliberative process privilege. Maricopa Audubon Soc’y v. United States Forest Serv., 108 F.3d 1089, 1094 (9th Cir.1997). Here, defendants assert, and the Magistrate Judge agreed, that the relevant decision is the Governor’s approval of the final budget. Based on this determination, the Magistrate Judge held that since the BCPs are but a prelude to the Governor’s budget, they are predecisional. Order at 7-8.
Plaintiffs contend that if executives of the DJJ and BPH are authorized to assert the privilege, as was determined by the Magistrate Judge, then the relevant decision must be the final BCPs that the DJJ and BPH forwarded to the DOF. Plaintiffs contend that the BCPs in question are therefore not predecisional documents, but rather embodiments of final agency decisions. Pls.’ Req. at 11-12.
Plaintiffs’ argument is unpersuasive for two reasons. First, they cite no authority (and indeed, the court can find none) for the proposition that the decision that makes the documents predecisional must correspond with the agency head asserting the privilege. Whether the appropriate agency head asserted the privilege is a distinct question from whether the document is predecisional. There is simply no legal authority to support plaintiffs’ contention.
Second, even assuming, arguendo, that the relevant decision is the BPH and DJJ’s decision to submit BCPs to the DOF, the documents in question are clearly predecisional as they appear to be draft BCPs and documents related to those drafts.6
The standard under which the District Court reviews a Magistrate Judge’s decision is a highly deferential one, wherein the court reverses a Magistrate Judge’s decision only if the decision was clearly erroneous or contrary to law. Ainsworth, 759 F.Supp. at 1469. Because the question of which decision within the state’s budget process is the relevant one appears, at best, uncertain, and because it could reasonably be interpreted that the Governor’s approval of the budget is the relevant decision for the purposes of the privilege, the court cannot find that the Magistrate Judge’s order was clearly erroneous or contrary to law.7
C. Qualified Privilege Even if the requirements above are satisfied and the privilege applies, the privilege is qualified and may be overcome if the need for accurate fact-finding outweighs the government’s interest in non-disclosure. FTC v. Warner, 742 F.2d at 1161. Plaintiffs allege that the Magistrate Judge erred in two ways: (1) by erroneously determining that the documents are not relevant to the litigation and (2) by failing to properly weigh the competing interests under balancing test required by FTC v. Warner. Pls.’ Req. at 13.
*5 Although the Magistrate Judge set forth the four FTC v. Warner factors in the “standards” section of his order, only one paragraph is devoted to analysis of these factors. The order reads, in pertinent part,
4

L.H. v. Schwarzenegger, Not Reported in F.Supp.2d (2007)
Nor does plaintiffs’ contention that the BCPs are highly relevant to their claims hold water. Whether defendants were good, bad, or indifferent in their alleged intent to violate plaintiffs’ rights is not particularly significant in this injunctive relief case. Either plaintiffs’ due process, equal protection and ADA rights were violated, or they were not. Plaintiffs do not assert that they must demonstrate any state of mind on the part of defendants in order to prevail. The court questioned defendants whether they were raising some type of “feasibility” defense, in which case, of course, budget documents would be very relevant. Defendants represented that they were not, and their answer in this case contains no such affirmative defense.
Order at 11. This court respectfully disagrees with the Magistrate Judge’s conclusion. As previously noted, under the FTC v. Warner balancing test, courts should consider the following four factors: (1) the relevance of the evidence sought to the litigation; (2) the availability of other evidence; (3) the government’s role in the litigation; and (4) the extent to which disclosure would hinder frank and independent discussion regarding contemplated policies and decisions. FTC v. Warner, 742 F.2d at 1161. Courts may also consider (5) the interest of the litigant, and ultimately society, in accurate judicial fact finding, North Pacifica, 274 F. Supp 2d at 1122; and (6) the seriousness of the litigation and the issues involved, id.
Although the Magistrate Judge appears to have discussed the first two factors, the order is silent as to the other factors. The standard for discovery is that the requested matters may lead to relevant evidence. Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351, 98 S.Ct. 2380, 57 L.Ed.2d 253 (1978). Thus even a finding that the documents are not directly relevant would not lead to the conclusion that they were not discoverable. As explained below, even the finding of irrelevance is open to doubt. In any event, the court finds that with respect to the BCPs, the need for fact-finding outweighs the government’s interest in non-disclosure. Because the Magistrate Judge did not fully engage in the balancing test and address each of the factors set forth in FTC v. Warner, the court finds that the Magistrate Judge’s conclusion is contrary to law.
1. Relevance The gravamen of plaintiffs’ complaint is that the parole revocation system violates their due process rights. As in Valdivia v. Daivs, the court looks to Mathews v. Elridge to determine what process is due. See Valdivia v. Davis, 206 F.Supp.2d 1068, 1072 (E.D.Cal.2002) (Karlton, J.). Under Mathews, the determination of what process is due, “requires consideration of three distinct factors:” (1) the private interest affected by the official action, (2) the probable value of any additional procedural safeguards, and (3) “the government’s interest, including the fiscal and administrative burdens that additional or substitute procedural requirements would entail.” Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976).
*6 It appears that at least some of the documents in question pertain to the third prong of the Mathews test, namely, the fiscal and administrative burdens associated with increasing procedural safeguards. A central component of this litigation will be determining the level of public burden associated with additional procedures in order to determine what level of process is constitutionally required.
The BCPs and associated attachments represent the DJJ and BPH’s own estimates of the types of additional procedures necessary to come into Constitutional compliance, and the estimated costs associated with such procedures. The 2007-08 BCPs (documents bates stamped: 543-636; 637-665; 855-878; 838-855) provide detailed projections of the financial burden associated with providing parole revocation hearings within a certain amount of time and with a certain staffing level. The analysis includes projected workload and funds needed for additional staffing, broken down by tasks such as actual time spent in probable cause hearings, revocation hearings, travel time, rest breaks, and miscellaneous additional time such as escorting parolees and administrative tasks. Other BCP documents reflect expected time needed for attorney training, and developing tracking systems and review procedures.
These documents clearly provide estimates of the fiscal and administrative burden of providing due process to juvenile parolees. The Magistrate Judge’s order does not mention the Mathews test, and rather focuses on defendant’s contention that feasability will not be raised as a defense. The Mathews test does not speak of the “defense” of feasability; rather, it sets forth three considerations necessary in the evaluation of what process is due.
Though the BCPs are relevant to the third prong of the Mathews due process test, the same cannot be said for the remainder of the documents. As previously mentioned, there are 201 documents at issue. While the documents are not clearly labeled, the court has conducted an independent in camera review of the documents and as best the court can decipher, only some of these documents constitute BCPs. The other documents, such as emails, personal notes, and diagrams discuss legal strategy, respond to questions from the DOF regarding BCPs, and the decision to appeal the DOF’s recommendation. This information
5

L.H. v. Schwarzenegger, Not Reported in F.Supp.2d (2007)
is merely tangential to the data provided by the BCPs, and sheds little light on the third prong of the Mathews test. With respect to these documents, the court finds that they are not relevant.8
In sum, the BCPs appear relevant to the third prong of the Mathews test and accordingly, this factor weighs in favor of disclosure.
2. Availability of Comparable Evidence from Other Sources Defendants assert that the privilege should apply to these documents because there is other evidence available, namely final BCPs, depositions, and written discovery. In his order, the Magistrate Judge determined that the documents should remain protected because the “final budgets for the years in question” are available to plaintiffs. Order at 11:16.
*7 Though the final BCPs shed some light on the administrative burden associated with due process compliance, the final BCPs are revised versions, created after the agencies have received recommendations from the DOF. As previously noted, the draft BCPs contain in-depth analysis of the need for budget adjustment, and analyze the costs and burdens associated with providing probable cause and revocation hearings within a certain amount of time.
Plaintiffs suggest, and an independent review of the BCPs confirms, that the Governor’s final budget contains information substantially inferior to the agencies’ own budget requests. The Governor’s final budget contains only a skeletal outline of funding and positions granted to the CDCR’s juvenile parole budget, as opposed to the BCPs, which contain detailed analysis of new positions needed.9 For these reasons, this factor weighs in favor of disclosure.
3. The Government’s Role in Litigation Under FTC v. Warner, the court considers the role of the government in the litigation. 742 F.2d at 1161-62. Plaintiffs assert that the Magistrate Judge “did not touch upon this factor at all” in his analysis, thereby committing clear error. Pls.’ Req. at 17:15.
Contrary to plaintiffs’ contention, the Magistrate Judge did discuss the role of the government in this litigation, albeit, in the context of misconduct. See Order at 9-11.10 In this regard, the Magistrate Judge considered the government’s interest in this litigation. The role of the government in this litigation is significant, and weighs in plaintiffs’ favor.
4. Extent Disclosure Will Chill Agency Discussion Under the fourth factor of the FTC v. Warner balancing test, the court considers, “the extent to which disclosure would hinder frank and independent discussion regarding contemplated policies and decisions.” FTC v. Warner, 742 F.2d at 1161. The Magistrate Judge’s order did not address this factor.
Defendants argue that releasing the BCPs in the instant case would discourage “candid discussions to consider changes in the budget.” Defs.’ Opp’n at 9. This argument is unpersuasive. As the parties are well aware, BCPs have been turned over to plaintiffs in both the Valdiva and Coleman cases. Moreover, defendants’ concerns may be mitigated by having the court issue a protective order or have the documents disclosed under seal.11 See, e.g., Price v. County of San Diego, 165 F.R.D. 614, 620 (S.D.Cal.1996) (“the Court is convinced that the infringement upon the frank and independent discussions regarding contemplated policies and decisions of the County ... can be alleviated through the use of a strict protective order against use or dissemination of the materials outside of this lawsuit.”).12
In sum, because the government’s concerns about hindering frank discussion can be mitigated via a protective order or disclosure under seal, this factor does not weigh heavily on the side of non-disclosure.
5. Need for Accurate Fact Finding and Seriousness of Litigation *8 In addition to the FTC v. Warner factors, the court may also consider the interest of the litigant, and ultimately society, in accurate judicial fact finding, North Pacifica 274 F.Supp.2d at 1122, Irvin, 127 F.R.D. at 173, and the seriousness of the litigation and the issues involved, Irvin, 127 F.R.D. at 174. The Magistrate Judge did not address these factors.
6

L.H. v. Schwarzenegger, Not Reported in F.Supp.2d (2007)
The desirability of accurate fact finding weighs in favor of disclosure. See North Pacifica, 274 F.Supp.2d at 1124. Moreover, when the issues involved are alleged violations of federally-protected civil rights, courts have consistently found that this need is heightened and the privilege is outweighed. See United States v. Phoenix Union High School, 681 F.2d 1235 (9th Cir.1982), cert. denied, 459 U.S. 1191, 103 S.Ct. 1169, 75 L.Ed.2d 422 (1983); Newport Pacific, 200 F.R.D. at 640; Irvin, 127 F.R.D. at 174.
Plaintiffs’ allege that the State juvenile parole system is in violation of the due process clause. This suit clearly involves serious questions of Constitutional magnitude and accordingly, there is a societal interest in accurate fact-finding. See, e.g., Newport Pacific, 200 F.R.D. at 640 (where plaintiffs alleged violations of the Federal Fair Housing Act and Section 1983, the court concluded that “[ t] he interest in enforcing these laws is not exclusive to the individual. It is an interest common to every citizen, including the federal government. As a result, this factor again favors disclosure.”) For these reason, the court finds that these final factors weigh in favor of disclosure.
D. Whether the BCPs are Protected by Other Privileges Because the Magistrate Judge found that the deliberative process privilege applied, he did not address the question of whether the BCPs would be protected by either the attorney-client privilege or the work-product doctrine.13 For the reasons explained herein, the court concludes that the BCPs are not protected by either of these alternative privileges.
1. Work Product Doctrine Defendants assert that many of the BCPs in question are non-discoverable because they fall under the work product doctrine. The court cannot agree.
“The work-product doctrine is a qualified immunity which protects from discovery documents and tangible things prepared by a party or that party’s representative in anticipation litigation.” Kintera, Inc. v. Convio, Inc., 219 F.R.D. 503, 507 (S.D.Cal.2003); Fed.R.Civ.P. 26(b)(3). As the party claiming the privilege, defendants bear the burden of establishing that the documents claimed as work product were in fact prepared in anticipation of litigation. Kintera, at 507.
In order for a document to be protected, it must be one “that would not have been generated but for the pendency or imminence of litigation.” Kintera, 219 F.R.D. at 507 (internal quotation marks and citations omitted). Accordingly, the doctrine does not protect materials assembled in the ordinary course of business. Griffith v. Davis, 161 F.R.D. 687, 698-699 (D.Cal.1995). Rather, the primary motivating purpose behind the creation of the documents must be as an aid in possible future litigation. Id.
*9 It is evident that the BCPs and associated attachments in question would have been prepared by the DJJ and BPH as part of the routine budget procedure, regardless of any pending litigation. Defendants fail to allege, much less meet their burden, that the BCPs were created in anticipation of litigation. See Joint Statement Re: Pls.’ Mot. To Compel at 33. Accordingly, the BCPS are not protected by the work-product doctrine. See Griffith, at 698 (no protection for materials assembled in the normal course of business).
2. Attorney Client Privilege Defendants also assert attorney-client privilege over some of the BCPs and attachments in question. The attorney-client privilege protects “communications between client and attorney for the purpose of obtaining legal advice, provided such communications were intended to be confidential.” Gomez v. Vernon, 255 F.3d 1118, 1131 (9th Cir.2001). “Because the attorney-client privilege has the effect of withholding relevant information from the fact-finder, it is applied only when necessary to achieve its limited purpose of encouraging full and frank disclosure by the client to his or her attorney.” Clarke v. American Commerce Nat’l Bank, 974 F.2d 127, 129 (9th Cir.1992) (citing Fisher v. United States, 425 U.S. 391, 403, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976)). As the party asserting the privilege, defendants bear the burden of establishing that the attorney-client privilege applies. Clarke, 974 F.2d at 129.
Defendants have failed to establish that the BCPs and attachments in question are communications between attorney and client, nor that they were intended to be confidential. Unlike some of the emails the court finds to be protected under the
7

L.H. v. Schwarzenegger, Not Reported in F.Supp.2d (2007)
deliberative process privilege, these documents do not appear to be communications between the agency and its attorneys; rather they are drafts of documents to be submitted to another department for approval. Therefore, the court concludes that the BCPs and attachments in question are not protected by the attorney-client privilege.

IV.

Conclusion
The Magistrate Judge was not in error in finding that the documents in question are protected by the deliberative process privilege. That said, the privilege is qualified and as explained above, it may be overcome if the “need for the materials and the need for accurate fact-finding override the government’s interest in non-disclosure.” FTC v. Warner, 742 F.2d at 1161. The Magistrate Judge’s order failed to fully analyze this question. Having conducted an independent in camera review of the documents at issue, and having analyzed the balancing test forth in FTC v. Warner, the court concludes that the need for BCPs and for accurate fact finding outweighs the government’s interest in non-disclosure. Specifically, the BCPs are relevant in evaluating the administrative burden associated with increased procedural protections.14
Accordingly, the court orders as follows:
*10 1. Plaintiffs’ Request for Reconsideration is GRANTED.
2. The defendants shall produce the following documents under seal to plaintiffs no later than close of business on July 13, 2007:

Bates

# Document Title

[593-636]

2007-2008 Budget Change Proposal (BCP) “Division of Juvenile Justice Parolee Due Process”

[637-665]

2007-2008 Budget Change Proposal (BCP) “Division of Juvenile Justice Parolee Due Process”

[855-878]

2007-2008 Budget Change Proposal (BCP) “Division of Juvenile Justice Parolee Due Process”

[838-855]

2007-2008 Budget Change Proposal (BCP) “Board of Parole Hearings-Youthful Offender Hearing Services, Parolee Due Process”

[671-696]

2006-2007 Legislative Proposal Package “Division of Juvenile Justice/BPH-Youth Board, Valdivia/Morrissey Hearing Enhancement”

[821-826]

2006-2007 Legislative Proposal Package “Division of Juvenile Justice/BPH-Youth Board, Valdivia/Morrissey Hearing Enhancement”

[697-716]

2005-2006 Budget Change Proposal (BCP) “Youth Authority Board/Department of the Youth Authority, Morrissey Hearing Enhancements (Valdivia Concept)”
8

L.H. v. Schwarzenegger, Not Reported in F.Supp.2d (2007)

[716-720] [721-723] [755-65] [743-47] [748-49]

2005-2006 Legislative Proposal “Youth Authority Board/Department of the Youth Authority, Valdivia/Morrissey Hearing Enhancement”
2004-2005 Budget Change Proposal “Youth Authority Board/Department of the Youth Authority, Morrissey Hearing Enhancements (Valdivia Concept)”
Draft BCP attached to Dec. 17 Memo
Undated document: “Response to the Department of Finance BCP Recommendations”
Document dated Nov. 13, 2006: “Response to the Department of Finance BCP Recommendations”

IT IS SO ORDERED.

Footnotes

1

On September 15, 2006, this case was related to Valdivia v. Schwarzeneeger, 94-CV-671 and on February 28, 2007, the court

certified a class of California juvenile parolees.

2

The budget change proposals at issue appear to be narrative explanations of budget requests plus attachments which provide

justification in the form of graphs, charts, and numerical data. The BCPs include detailed analysis of current financial burdens

associated with providing parole services, as well as projected financial burdens associated with adhering to more stringent time

frames, providing increased attorney representation, increasing witness participation, and decreasing hearing location radius.

3

Plaintiffs do not contend that the second procedural requirement (that the information for which privilege is claimed must be

specified and precise and certain reasons given for asserting confidentiality) has not been satisfied.

4

The requirement that the privilege be invoked by the agency head is not always applied literally, see e.g., Smith v. Federal Trade

Com., 403 F.Supp. 1000, 1017 (D.Del.1975) (allowing Chairman of the Federal Trade Commission to assert the privilege rather

than the Secretary). However, the duty to invoke the privilege cannot be delegated so far down the chain of command that purposes

of the requirement are undermined, see Coastal Corp. v. Duncan, 86 F.R.D. 514, 516-17 (D.Del.1980) (disallowing the Assistant

Administrator of a sub-agency to assert the privilege over Department of Energy documents rather than the Secretary of Energy).

5

The plaintiffs do not contest that the documents are deliberative in nature.

6

Each BCP in question contains some indication that it is a draft. See, e.g., 2007-08 DJJ BCP and attachments (documents bates

stamped: 593-636) (including cover sheet but “XX” instead of figures in the narrative); 2007-08 DJJ BCP and attachments

(documents bates stamped: 637-65) (containing handwritten notes, which are incorporated into the typewritten text in the version

of the BCP at bates stamp 593-636).

7

Plaintiffs additionally cite the court’s June 14, 2006 Order in Coleman v. Schwarzenegger (finding that BCPs created by the CDCR

were not protected by the deliberative process privilege) for the proposition that BCPs are not predecisional. However, this

assertion is misplaced. Privilege was denied in Coleman not because BCPs are not predecisional, but rather because it was the

deliberative process of the agency itself which was in question. Where the agency’s deliberative process is at issue, the deliberative

process privilege does not apply. See In re Subpoena Duces Tecum Served on the Office of the Comptroller of the Currency, 145

F.3d 1422, 1424 (D.C.Cir.1998) In the June 2006 Order in Coleman, the court stated: “Put directly, the court requires the BCPs in

part to determine whether the state’s deliberative process is frustrating the ability of the state to comply with the courts orders.” See

Coleman v. Schwarzenegger, No. CIV S-90-0520 LKK-JFM, June 14, 2006 Order, Doc. # 1840. In the case at bar, it is the policies

and procedures of the CDCR that are being challenged, not the deliberative process behind those policies. The court’s June 14,

2006 Order in Coleman is therefore irrelevant to the issue of whether BCPs are predecisional in this case.

9

L.H. v. Schwarzenegger, Not Reported in F.Supp.2d (2007)

8

The court notes that even if the deliberative process privilege did not protect these tangential documents, these documents may be

independently protected as work product or under the attorney-client privilege.

9

An unpublished decision from the Northern District supports the court’ s position. In Sanchez v. Johnson, plaintiffs challenged the

State’s developmental disabilities services and filed a motion to compel disclosure of agency BCPs. The court ordered the

documents disclosed:

[T]he BCPs ... as well as drafts of those documents are highly relevant to Plaintiffs’ claims. They contain detailed facts and

analysis concerning the adequacy of funding for various programs.... While some of the factual information contained in these

documents may be available elsewhere, it is obvious that the quality and persuasiveness of such evidence is likely to be

substantially inferior to the agencies’ own budget requests, which provide detailed analysis by those encharged with

administering the State programs ...

Sanchez. Johnson, No. C-00-1593 CW (N.D.Cal. Nov. 19, 2001).

10

Plaintiffs cite North Pacifica and Newport Pacific Inc. for the proposition that the Magistrate Judge should have additionally

considered that (1) the government is the defendant and (2) the litigation is constitutional and of serious import. Pls.’ Request at 17.

However, this assertion is a mischaracterization of the two cases. In both cases, the government’s decision-making process (and in

North Pacifica, the intent of the decision-makers) was in question, and that is what “tip[ped] the scales in favor of disclosure.”

Newport Pac. Inc., 200 F.R.D. 628, 640 (S.D.Cal.2001); See also North Pacifica, 274 F.Supp.2d 1118, 1124 (N.D.Cal.2003).

Because neither the decision-making process nor intent of the government is at issue in the case at bar, the court does not find that

the Magistrate Judge’s order was clearly erroneous in failing to explicitly consider these cases.

11

When the BCPs were disclosed in the Coleman case, the court specifically ordered that the documents be turned over to the Special

Master under seal. See Coleman v. Schwarzenegger, No. CIV S-90-0520 LKK-JFM, June 14, 2006 Order, Doc. # 1840

12

The court in Sanchez v. Johnson, No. C-00-0593 at 18 (N.D.Cal. Nov. 19, 2001) reached a similar conclusion in finding that the

disclosure of BCPs “intrudes minimally and without prejudice into agency deliberations,” while production of internal emails, and

memoranda “may result in far greater intrusion.” Id. The court also noted that 32 states make agency budget requests part of the

public record, “apparently without any chilling effect.” Id . The Sanchez court compelled production of BCPs and draft BCPs

under a protective order in order to reduce any harm that might result from ordering the production. Id.

13

Although the parties did not brief these issues on plaintiffs’ request for reconsideration of the Magistrate Judge’s order, the issues

were fully briefed in the parties’ joint statement regarding plaintiffs’ motion to compel. Accordingly, the arguments regarding

work-product and the attorney client privilege as applied to the BCPs has been fully briefed and may be resolved at this time.

14

Because the email communications and memoranda do not provide information relevant to the Mathews test, these remain

protected by the deliberative process privilege and shall not be disclosed.

10

 
 1

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

8

EASTERN DISTRICT OF CALIFORNIA

9

10 L.H., A.Z., D.K., and D.R., on behalf of themselves and
11 all other similarly situated juvenile parolees
12 in California,

13

Plaintiffs,

NO. CIV. S-06-2042 LKK/GGH

14

v.

15 EDMUND G. BROWN, JR., Governor, State of
16 California, et al,

O R D E R

17

Defendants.

/

18

19

On February 19, 2013, the parties filed a Joint Motion to

20 Terminate The Stipulated Order for Permanent Injunctive Relief

21 ("Joint Motion"). ECF No. 695. This court issued an Order on

22 April 1, 2013 finding that termination would be appropriate and

23 proper upon notification that the last class member had been

24 released from juvenile parole, and after resolution of any

25 remaining fee requests from the Special Master. ECF No. 701. On

26 June 28, 2013, defendant notified the court that the last class

1

1 member had been released from juvenile parole. ECF No. 707. The

2 Special Master notified the court by email on June 29, 2013 that

3 she would not be requesting any more fees. ECF No. 710.

4

Accordingly,

5

1. The Stipulated Order for Permanent Injunctive Relief (ECF

6 No. 438), is hereby TERMINATED;

7

2. The Clerk of the Court is directed to close this case.

8

IT IS SO ORDERED.

9

DATED: July 9, 2013.

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

2

 
 [878037-1]

1 GEOFFREY HOLTZ – 191370
BINGHAM McCUTCHEN LLP
2 Three Embarcadero Center
San Francisco, California 94111-4067
3 Telephone: (415) 393-2000
4
DONALD SPECTER – 083925
5 SARA NORMAN – 189536
CORENE KENDRICK – 226642
6 PRISON LAW OFFICE
1917 Fifth Street
7 Berkeley, California 94710-1916
Telephone: (510) 280-2621
8
Attorneys for Plaintiffs
9

MICHAEL W. BIEN – 096891 GAY CROSTHWAIT GRUNFELD – 121944 ROSEN BIEN GALVAN & GRUNFELD LLP 315 Montgomery Street, Tenth Floor San Francisco, California 94104-1823 Telephone: (415) 433-6830
SUSAN L. BURRELL – 074204 CAROLE SHAUFFER – 100226 YOUTH LAW CENTER 200 Pine Street, 3rd Floor San Francisco, California 94104-2704 Telephone: (415) 543-3379

10
UNITED STATES DISTRICT COURT
11
EASTERN DISTRICT OF CALIFORNIA
12

13

L.H., A.Z., D.K., D.R., M.N., and R.C., on behalf of

14 themselves and all other similarly situated juvenile

parolees in California,

15

Plaintiffs,

16

v.

EDMUND G. BROWN, JR., Governor, State of

17 California; MATTHEW CATE, Secretary, California

Department of Corrections and Rehabilitation (“CDCR”);

18 SCOTT KERNAN, Undersecretary of Operations, CDCR;

BERNARD WARNER, Chief Deputy Secretary of the

19 Division of Juvenile Justice; RACHEL RIOS, Director,

Division of Juvenile Parole Operations; MARTIN

20 HOSHINO, Executive Officer of the Board of Parole

Hearings (“BPH”); ROBERT DOYLE, Chair of the BPH;

21 SUSAN MELANSON, HENRY AGUILAR, ASKIA

ABDULMAJEED, JOSEPH COMPTON, ROBERT

22 CAMERON, JOYCE ARREDONDO, MARY

SCHAMER, and TRACEY ST. JULIEN, Commissioners

23 and Board Representatives; CHUCK SUPPLE, Executive

Officer of the Juvenile Parole Board; CDCR; DIVISION

24 OF JUVENILE JUSTICE; BOARD OF PAROLE

HEARINGS; and the JUVENILE PAROLE BOARD,

25

Defendants.

26

Case No. Civ. S-06-2042 LKK-GGH
ORDER CONFIRMING UNDISPUTED FEES AND COSTS
Judge: Hon. Lawrence K. Karlton

27

28

[PROPOSED] ORDER CONFIRMING UNDISPUTED FEES AND COSTS

[878037-1]

1

In a February 11, 2009 Order, this Court established procedures by which Plaintiffs

2 are to collect periodic attorneys’ fees and costs in this case in connection with their post-

3 judgment work, including for all fee and expense requests from June 5, 2008 forward. On

4 March 29, 2013, this Court issued an order stating, inter alia, that “[u]pon Defendants’

5 notification that the final class member has been released, the parties shall, within twenty

6 (20) days, file their motions, if any, for attorneys’ fees …. Docket No. 701 at 8. On

7 June 28, 2013, Defendants notified the Court that the final class member had been

8 released. Docket No. 707 at 1.

9

Pursuant to these orders and agreement between the parties, Plaintiffs delivered by

10 hand-delivery their Quarterly Statement for the Second Quarter and part of the Third

11 Quarter of 2013 covering the period April 1, 2013 – July 3, 2013 (the “Final Quarterly

12 Statement”) to Defendants on July 3, 2013. The parties completed their meet and confer

13 on July 10, 2013, and reached an agreement as to fees and costs incurred. Defendants do

14 not dispute Plaintiffs’ 2013 hourly rates. The parties settled the Final Quarterly Statement

15 for $5,000.00. Attached hereto as Exhibit A is a chart setting forth the balance currently

16 due for the Final Quarterly Statement, which will become due and owing forty-five days

17 from the entry of this Order.

18 / / /

19 / / /

20 / / /

21 / / /

22 / / /

23 / / /

24 / / /

25 / / /

26 / / /

27 / / /

28 / / /

1
[PROPOSED] ORDER CONFIRMING UNDISPUTED FEES AND COSTS

[878037-1]

1

IT IS HEREBY ORDERED that Plaintiffs’ fees and costs of $5,000.00, plus

2 interest, are due and collectable as of forty-five (45) days from the date of entry of this

3 Order. Interest on these fees and costs will run from August 3, 2013, accruing at the rate

4 provided by 28 U.S.C. § 1961.

5

6

IT IS SO ORDERED.

7

8 DATED: July 19, 2013

9

10

11

12 APPROVED AS TO FORM:

13

14 DATED: July 12, 2013

HANSON BRIDGETT, LLP

15

By: /s/ Samantha Wolff

16

Samantha Wolff

17

Attorneys for Defendants

18

19 DATED: July 11, 2013 20 21 22 23

ROSEN BIEN GALVAN & GRUNFELD LLP
By: /s/ Gay Crosthwait Grunfeld Gay Crosthwait Grunfeld
Attorneys for Plaintiffs

24

25

26

27

28

2
[PROPOSED] ORDER CONFIRMING UNDISPUTED FEES AND COSTS

 
 Case 2:06-cv-02042-LKK-DAD Document 666 Filed 02/29/12 Page 1 of 51

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

L.H, et al., Plaintiffs,
vs. EDMUND G. BROWN, JR., et al.,
Defendants. _____________________________________/

NO.CIV.S-06-2042 LKK/GGH

SEVENTH REPORT OF THE SPECIAL MASTER ON THE STATUS OF
CONDITIONS OF THE STIPULATED ORDER
Background In orders dated September 19, 2007 and January 29, 2008, this Court found that California's juvenile parole revocation system violated juvenile parolees’ due process rights, the Americans with Disabilities Act (ADA), and the Rehabilitation Act. The Court approved a Stipulation and Order for Permanent Injunctive Relief on October 7, 2008 (hereafter “Stipulated Injunction”), which sets forth detailed requirements for attorney representation, revocation system procedures, effective communication and reasonable accommodations, and consideration of alternatives to incarceration. During implementation, stipulated orders have been entered concerning Plaintiffs’
1

Case 2:06-cv-02042-LKK-DAD Document 666 Filed 02/29/12 Page 2 of 51
monitoring, the tracking of parolees with disabilities and effective communication needs, policies and procedures, and the revocation extension penalty matrix.
Chase Riveland was appointed as Special Master on May 22, 2008. Virginia Morrison assumed the role effective June 1, 2010. Patricia Gray served as Deputy Special Master in 2010 and 2011, and Christine Toombs succeeded her on October 4, 2011. The Mastership has submitted six reports, and offers this seventh report assessing progress toward providing due process and complying with this Court’s orders.
Special Master Activities During this Round, the Special Master’s team conferred with Defendants regarding state budget issues and their effect on DJJ, and with the parties concerning selfmonitoring methodology and disputed policy items. The Mastership mediated issues regarding alternatives to incarceration and plaintiffs’ onsite and document monitoring. The Mastership interviewed headquarters staff, parole agents, attorneys, and parolees. The team observed hearings at Pine Grove Youth Conservation Camp; N.A. Chaderjian Youth Correctional Facility; Watts, Inland, and Oakland parole units; Sonoma County Juvenile Detention Facility; South Bay Detention Facility; George F. Bailey Detention Facility; California Men’s Colony; West Valley Detention Center; Lerdo PreTrial Facility; and in the jails of Merced, Alameda, Solano, Sonoma, Fresno, Los Angeles, San Diego, and San Francisco counties. The team monitored proceedings conducted by 6 hearing officers, including 19 probable cause hearings or optional waiver reviews, 15 revocation hearings, 7 not-in-custody revocation hearings, and 3 revocation extension matters.
2

Case 2:06-cv-02042-LKK-DAD Document 666 Filed 02/29/12 Page 3 of 51
The team observed the service of notice on 8 parolees conducted by 6 parole agents in county jails,1 routine meetings of Defendants’ task force, and training for hearing officers.
Scope and Approach This report discusses observations and activities spanning May through December 2011, collectively referred to as “the Round.” Data includes that which became available during the Round, which might include activities from a somewhat earlier time. References to the Special Master’s activities frequently include the actions of a member of her team. For some requirements, the Special Master’s team conducted studies based on revocation packets, hearing documents, and recordings provided in Defendants’ monthly document productions, in combination with those same documents produced for the hearings observed during the team’s site visits. For other requirements, the team studied records selected from the relevant population as identified by electronic reports. In other instances, the team relied on reports generated by Defendants’ revocation database; Plaintiffs’ monitoring summaries; and analyses, reports, or studies conducted by the CalPAP attorney panel administration, and sometimes documents underlying these sources. This report is structured according to the following format: after these introductory remarks, the report comments on the legislative environment in which DJJ is operating. Priorities for LH improvements then follow, after which there is discussion of the requirements recommended for a finding of substantial compliance. A more complete discussion of the status of Stipulated Injunction compliance follows and the report concludes with recommendations for court orders.
3

Case 2:06-cv-02042-LKK-DAD Document 666 Filed 02/29/12 Page 4 of 51
The Environment This period concentrated on the contraction of the juvenile division as mandated by laws that went into effect in 2011. The parole operations division reviewed and discharged from parole substantial numbers of parolees it had been supervising. Parole operations was merged with the adult parole division; juvenile parole agents are receiving additional training at the academy and are employed by the adult division, but retain responsibility for juvenile parolees. As youth leave the institution to county supervision, are discharged from parole, or serve their maximum parole terms, the population is decreasing dramatically. The total on parole as of early January 2012 was 821, of which 156 were serving revocation terms.2 For these reasons, the Juvenile Parole Board is also continuing to make adjustments for its reduced activity, including staffing reductions, management functions being subsumed by another juvenile division, and transfer of some responsibilities to staff of the adult Board of Parole Hearings. The law contemplates all juvenile revocation hearings ceasing as of July 2014.3 These changes have been complex and time-consuming, involving myriad decisions, negotiation, staff preparation, and practical implementation. It is a difficult time for all of the juvenile division with much loss for many who have invested decades in managing and attempting to rehabilitate youth. The division is characterized by conscientious, caring individuals throughout its job classifications who are dedicated to the youth and to carrying out their jobs well. The pending governor’s budget proposal includes a provision to eliminate juvenile facilities as well, possibly ending intake in January 2013, and the further change and uncertainty weigh heavily on staff.
4

Case 2:06-cv-02042-LKK-DAD Document 666 Filed 02/29/12 Page 5 of 51
These changes have also raised several concerns for Plaintiffs. With an understanding that a small number of juvenile probationers may have been sent to DJJ to serve their time, Plaintiffs are apprehensive about the scope of that practice and whether juveniles are being revoked to state facilities without benefit of the LH protections. Looking to the future, Plaintiffs worry that juvenile parole agents working in adult parole operations may lead to alternative programming being reduced, effective systems being dismantled, and that the pressures of high-volume offices undergoing their own transformations under new laws may affect juvenile supervision.
Remarkably, current conditions seem to have had limited effect on LH compliance. Staff have incorporated the operations changes while maintaining most of the LH gains of recent years, and some due process improvements are evident in hearing practice. These are substantial achievements and the Mastership is grateful to the management and line staff who have kept things on course.
Priority Issues in the Next Round The Special Master encourages Defendants to treat the following practices as the highest priorities for improvement in the coming Round:
 ADA accommodations and effective communication assistance during service of notice of rights and charges
 Short factual summaries in Notices of Charges  Considering and documenting when attorneys challenge probable cause  Parole agents’ and hearing officers’ role in applying the law when the
State wants to introduce evidence and the person who spoke or wrote the statement is not present
5

Case 2:06-cv-02042-LKK-DAD Document 666 Filed 02/29/12 Page 6 of 51
Substantial Compliance To the extent that a Stipulated Injunction requirement has been conducted well for a sustained period, the Mastership will consider that requirement to be in substantial compliance. In some institutional litigation, “substantial compliance” has been used as an umbrella term for ultimate success. The LH Defendants argue that it should be the standard for relief from judgment in this case; Plaintiffs strongly contest that substantial compliance should serve as that standard. As used in this report, substantial compliance indicates a sustained period of meeting a high standard. Substantially compliant items will remain within the Stipulated Injunction, but the Special Master and Plaintiffs will discontinue review of such items unless and until a significant decline in performance surfaces. Defendants are expected to continue to review these items at regular intervals to prevent such a decline. The Special Master considers the following requirements to be in substantial compliance on the following bases.
Current Round Tracking mechanism for timeframes and reasons for delay (¶ 13, 32, 33): Defendants launched an information system in early 2009 to facilitate many aspects of compliance and to track performance. It captured much of the “business process” as specified by the Stipulated Injunction. It was built on the 10-year-old programming from Valdivia, which contained major challenges for reporting ability, completeness and apparent accuracy, and very little of the flexibility needed to address those shortcomings. Nevertheless, Defendants and very skillful contractors effectively adapted the system to unique LH needs and worked continuously to correct reporting inconsistencies
6

Case 2:06-cv-02042-LKK-DAD Document 666 Filed 02/29/12 Page 7 of 51
and errors. They created new reports to reflect needed data and added new data capture, reports and adjustments as LH processes changed. The Special Master tested the updates during the last reporting period and found them to have remedied all substantial problems. Review for this report confirmed that this has been sustained.
The revocation database serves as the principal mechanism to track timeframes and reasons for delay, but it cannot perform these functions comprehensively. It is complemented by Defendants conducting quarterly reviews of the timeliness of each open case; Defendants researching monthly the causes for each case that appears to have been conducted late at any step; Defendants maintaining back-up systems to watch timeframes and ensure provision of accommodations; and CalPAP capturing, analyzing and reporting additional timeframes and key qualitative data. Each of these four systems functions extremely well. The resulting macro-system effectively fulfills this injunction requirement.
As with any system, a few glitches remain, but they do not pose major obstacles and the Special Master is confident that Defendants, their contractors and CalPAP will manage these in the ordinary course of business.
With an effective system verified for more than one year, the Special Master finds this requirement to be in substantial compliance. Given the history involved, and the centrality of this requirement to meeting many of the LH mandates, this is an exceptional accomplishment.
Level I and II behavior handled by parole units (¶ 25): The Stipulated Injunction provides that “Parole violations that consist of Level I or Level II behaviors may be resolved by the Parole Agent and Supervising Parole Agent at the field unit level without
7

Case 2:06-cv-02042-LKK-DAD Document 666 Filed 02/29/12 Page 8 of 51
requiring approval by the Juvenile Parole Board.” Policies and procedures were revised to this effect,4 and parole units have, in fact, been handling a substantial percentage of behaviors in this way long-term.
In the most recent eight months, agents instituted corrective actions plans, rather than placing holds, for 38% of the events they identified as parole violation behavior.5 Additionally, during the Round, 34% of the holds placed were resolved at the unit; presumably, some of these involved Level I or II behavior.6 Cumulatively, then, something approaching 70% of identified violation behavior is managed by the parole units without going to a Juvenile Parole Board hearing. Similar rates were apparent when measured in 2010,7 suggesting that this practice is institutionalized.
The Special Master finds that this requirement is in substantial compliance.
Evidence on the same terms as the state (¶ 33): Throughout LH implementation, attorneys and monitors have made no complaints of evidentiary disadvantage to the Special Master, and her team has observed parolees putting on evidence without obstacle. CalPAP reports show no objections on this basis during the Round.
The State is encouraged to work with CalPAP concerning those occasions when the parolee’s defense or mitigation relies in part on questioning his parole agent, and this is frustrated when a substitute agent appears. However, this raises issues different from the State’s evidence being privileged over the parolee’s.
The system to satisfy this requirement appears to continue to function well and the Special Master considers it to be in substantial compliance.
8

Case 2:06-cv-02042-LKK-DAD Document 666 Filed 02/29/12 Page 9 of 51
Revocation Extensions (¶ 35, 40): DJJ has provided a revocation extension system since 2009. In the instant Round, 15 cases were brought and all were classified as serious misconduct or willful program failure; the latter involved a parolee refusing to sign his parole conditions.8 None of the cases was dropped and all concluded at the probable cause hearing. Throughout 2011, only one case was late at one step, and it did not cause subsequent steps to be late.9
In the previous Round, three cases arguably were late. Defendants addressed the most problematic issue of delayed initiation, and this has not been repeated for the last nine months.10
In this Round, nearly half of the cases occurred within the month before the parolee was set for release. Defendants expedited these hearings so that all occurred by the deadline; indeed, most were concluded before the original release date. This was also the practice in the prior Round.11
The Special Master’s team analyzed four revocation extension hearings through onsite observations and recordings, and all of the Board Orders for the Round. The conduct of the hearings and their due process protections were consistent with Defendants’ other hearings. Attorneys have previously affirmed that parolees subject to revocation extension receive copies of their written hearing records at the conclusion of the hearings.
The Special Master finds this requirement to be in substantial compliance.
Release within three business days if time has been served (¶ 38): Where a hearing officer’s order results in a parolee having already served his or her time – that is, an order
9

Case 2:06-cv-02042-LKK-DAD Document 666 Filed 02/29/12 Page 10 of 51
of dismissal, continue on parole, credit for time served, or a revocation term that has been served as of the order -- the Stipulated Injunction requires that the parolee be released within three business days. Defendants studied the great majority of these cases in 2011. They found 48 relevant cases, and they verified that all had been released timely.12 Additionally, a parolee was ordered released after a successful appeal, and his release was timely as well.13
With at least one year of sustained performance, the Special Master finds this requirement in substantial compliance.
Right to audio recording (¶ 41): The Stipulated Injunction provides that parolees shall be informed at revocation hearings of their right to an audible recording of the hearing, and Defendants shall ensure that such recordings are made and the equipment maintained. Since early in implementation, the parties have observed recording conducted in each revocation hearing for which they were present. Defendants provide recorded hearings in a monthly document production. The Special Master previously found in substantial compliance the companion requirement that parolees receive recording copies timely and, in so doing, found that unusable copies were extremely rare. These all suggest that Defendants are fulfilling their obligations to maintain a recording system and keep it in repair.
The Mastership analyzed almost 60% of the revocation hearings in the Round, and hearing officers consistently informed parolees of their right to request recording copies. This has been the observed practice in prior Rounds and others’ monitoring provided no examples to the contrary.
This requirement is in substantial compliance.
10

Case 2:06-cv-02042-LKK-DAD Document 666 Filed 02/29/12 Page 11 of 51
Policies and procedures governing dual commitments (¶ 45): Defendants have had policies and procedures in place since 2009; these principally call for juvenile and adult parole agents to coordinate when dual commitment parolees are arrested on potential revocation charges.14 While there initially were reports of difficulties in this communication, all juvenile parole agents interviewed by the Special Master in recent Rounds report ease of coordination.
The parole division indicates that it has made a concerted effort to review dual commitment cases and discharged a number of them in favor of adult parole supervision. As of this writing, Defendants report that there are 12 dual commitments, two-thirds of whom are currently pending review for discharge. During the Round, revocation was initiated for only three dual commitments. Records show that juvenile parole deferred to adult parole in all three cases, and that this was accomplished quickly and did not delay revocation processing.15
The Special Master considers this requirement to be in substantial compliance.
No delays for accommodations (¶ 51): As required, Defendants implemented policies and procedures to facilitate the provision of accommodations and measures for effective communication.16 Defendants’ revocation database shows no delays for the purpose of providing accommodations at hearings in the last two Rounds, constituting 15 months of practice.17 CalPAP records show no objections for this reason during that period and surveyed attorneys did not experience delays for accommodations.18 Anecdotally, Plaintiffs’ monitoring notes various accommodations provided during observed hearings, including those that require advance arrangement such as interpreters
11

Case 2:06-cv-02042-LKK-DAD Document 666 Filed 02/29/12 Page 12 of 51
and staff assistants, and did not indicate there were any delays.19 The Special Master’s team has interviewed parole agents during notice service, who
reported no delays for this purpose or any other accommodation or effective communication need. This is consistent with revocation database reports concerning notice service, which show that none of the service events that appear late were caused by the need for accommodation.20
Whether all accommodations and effective communication needs are identified and appropriately provided is a contested issue covered by other provisions of the Stipulated Injunction. On the narrow issue specified by this injunction paragraph -- whether there are delays in providing for those needs that are identified -- the Special Master finds there is good practice sufficient for substantial compliance.
Forms in alternative formats (¶ 55): Plaintiffs retained an expert to simplify those forms given to parolees. For three Rounds, Defendants made available those forms, as well as forms in Spanish and large print. The parties agree that it appears all relevant forms are now in these formats.21
They have also agreed that, rather than providing forms in audio format, Defendants will read the forms aloud when needed. Defendants have ensured that there is equipment available at each of their facilities for parolees needing to listen to materials on recording. Plaintiffs also note that this support needs to be available to parolees housed in jails. Through three years of implementation, there have been 28 requests to review hearing recordings;22 it is unknown how many of these may have been parolees in jails and whether they were able to play the recordings. While the Special Master agrees
12

Case 2:06-cv-02042-LKK-DAD Document 666 Filed 02/29/12 Page 13 of 51
that this is an issue requiring attention if it arises, it appears the risk is of a size that
should not serve as a barrier to substantial compliance on this requirement. No complaints have come to the Special Master’s attention, throughout implementation, that
any of these formats was not provided when needed.
This requirement is well-established and the Special Master considers it in
substantial compliance.
In previous Rounds, this Court has found the following requirements to be in
substantial compliance. Defendants and CalPAP maintained these requirements at or
above prior levels.
 Notice of terms posted (¶ 11): This remains in compliance. Although the Stipulated Injunction does not expressly require posting in hearing rooms, Plaintiffs assert that they should be and this has been a long-term practice. Monitors have recently noted several hearing rooms lacking this poster, and it would be good practice for Defendants to replace them.
 Timely appointment of counsel (¶ 16)23
 At the time of attorney appointment, provision of a copy of all the evidence on which the State intends to rely or which may be exculpatory; evidence not provided with at least two days’ notice shall be excluded unless the state shows good cause (¶ 16, 19)24
 Attorney will be informed of Return to Custody Assessment by the 10th business day after the hold (¶ 30)
 Adequate time for representation; reasonable access to clients and files; confidential phone calls and space in which to meet; observing staff cannot participate in proceedings (¶ 20, 23)
 Provision of counsel during revocation and revocation extension proceedings (¶ 15, 35)25
 At the time of attorney appointment, provision of date, time, and location of the hearing (¶ 16)
13

Case 2:06-cv-02042-LKK-DAD Document 666 Filed 02/29/12 Page 14 of 51
 Defendants shall take all reasonable steps to allow counsel to meet with clients at least 24 hours prior to the probable cause hearing (¶ 16)
 State-appointed counsel for juvenile parolees shall be appropriately compensated for hearings and appeals (¶ 24)
 Defendants shall develop standards, guidelines, and training for effective assistance of state-appointed counsel (¶ 21)
 Not accepting waivers of hearing rights or the right to counsel made prior to the juvenile parolee meeting with counsel; waivers of hearings and requests for continuance must be made in writing in the presence of counsel (¶ 17, 31)
 Parolee waivers of timely hearings and continuances (¶ 31) 26  Not in custody hearings within 60 days after service and with all due process and
ADA protections (¶ 45)27  Parole revocation hearings to be held within a 50-mile radius of the alleged
violation (¶ 36)28  Providing hearing recordings (¶42)29  Revocation may be extended only after a revocation extension hearing (no time-
adds or DDMS time extensions) (¶ 35)
Stipulated Injunction Requirements
The Stipulated Injunction requires a variety of practice changes and a system of revocation steps in which due process must be delivered according to specified timelines. The status of implementing these requirements will be discussed in this section.
Defendants initiated 378 revocation actions during the eight-month Round, continuing the pattern of reductions of recent years. In the most recent months, the difference was striking – half as many cases were being initiated as compared to the beginning of the Round.30
Defendants continue to resolve more than one-third of these actions before
14

Case 2:06-cv-02042-LKK-DAD Document 666 Filed 02/29/12 Page 15 of 51
proceeding to any hearing.31 It appears that those parolees are continued on parole within two weeks of the cases being initiated, and reportedly are given programming and/or additional structure when returned to their communities.
Policies and Regulations Policies: The parties negotiated, and Defendants have had in place long-term, policies covering most of the elements required by the Stipulated Injunction. The agreed policies went forward while a substantial number of disputed items remain. During this Round, a policy concerning due process for mentally ill parolees unable to participate in proceedings, which had been previously negotiated, was distributed.32 Regulations: The parties have been pursuing the circuitous path to regulatory revision for several years. After multiple rounds of Plaintiffs providing input during public comment periods and Defendants making revisions, Plaintiffs currently have the opportunity to comment in a period that closes contemporaneously with this report.33 They object to the length of time that this process has taken and advocate that finalizing these regulations should be a priority for the upcoming Round.
Parole Agent and Supervising Parole Agent conference within two business days (¶ 27):
Nature of the practice: Where a parole agent has placed a hold, the Stipulated Injunction requires him or her to confer with a supervisor, on this timeline, to determine whether there is probable cause to retain the hold and whether alternatives to incarceration are warranted, and to document these decisions. This conference has been routine practice long-term; Plaintiffs are concerned about whether it is done correctly as
15

Case 2:06-cv-02042-LKK-DAD Document 666 Filed 02/29/12 Page 16 of 51
they have not observed it. During this Round, Defendants added a revocation database feature for staff to record general information underlying their decisions at this step. No other information came to the Special Master’s attention during the Round.
Timeliness: Only one in-custody case was late, and open cases were consistent with these closed cases.34 Unusually, six not in custody cases were late. Taken together, this represents a 98% timeliness rate.
Some of the late not in custody cases were handled two days later, while others were delayed as much as three to four weeks. Defendants’ oversight identified them and determined there were not good reasons35 These did not affect incarceration time as the parolees were in the community, and it did not delay the time to hearing or other final decision. Plaintiffs object, nevertheless, to not meeting requirements.
Notice of charges and rights within three business days (¶ 28): Nature of the practice: The Mastership had an opportunity to review more notices being served than in prior Rounds and the results were surprising. There was a wide range of practice, most particularly concerning ADA accommodations and effective communication assistance. Defendants will want to bring attention to this area. In terms of identifying and accommodating special needs, some agents worked carefully and methodically through the conditions possibly requiring assistance with an open manner encouraging asking for help. Others discussed only vision and reading, then moved on. Some did not have their kits of assistive devices; indeed, one was unaware of how to accommodate a vision or hearing impairment. Some took extra care with phrasing, pace, and explanations for parolees they knew might have difficulty, or noticed
16

Case 2:06-cv-02042-LKK-DAD Document 666 Filed 02/29/12 Page 17 of 51
and assessed when a parolee seemed not to be engaged. Some had parolees read aloud but none had them paraphrase it to demonstrate comprehension. Too often, agents asked closed-ended questions for the youth to affirm their understanding, or did nothing at all in this regard. While problematic practices have been observed in a small number of agents to date, their practice differed so much from Defendants’ policy that it bears attention.
The need for interpreters reportedly is rare. Some agents say they have brought inperson interpreters who are available with little lead time, others know DJJ contacts for arrangements, while one would call on local jail staff, seemingly unaware of the DJJ systems.
Agents were much more consistent and accomplished when communicating parolees’ rights and charges. They read through those documents thoroughly and some would supplement that with examples and explanations, an excellent practice. Youth were given all of the expected LH forms. 36
The Mastership also reviewed a large sample of the notices of charges provided to parolees. The study looked for whether the short factual summary for each charge communicated enough for the parolee to begin preparing a defense. Short factual summaries met this expectation in only 73% of the cases,37 a rate far too low for compliance and an unfortunate decline from earlier Rounds. Practice was excellent at the Sacramento parole unit; difficulties were distributed across several units but were most concentrated at Central Valley parole unit.
On the other hand, notices in this sample were almost always complete, with only two cases adding charges after the original set was served. In one case, it appears clear the agent could not have known the added charge in time to include it on the notice; in
17

Case 2:06-cv-02042-LKK-DAD Document 666 Filed 02/29/12 Page 18 of 51
the other case, the agent may or may not have known. Neither parolee was re-served, but the added charges were included by the time the attorneys received the violation reports.38
Timeliness: Service of notice occurred late in four cases, mostly the same not in custody cases that were late at the agent-supervisor conference step.39 These could be very late – one to two weeks – but the parolees still had substantial time to prepare a defense and their hearings were not delayed. There were an additional three in-custody cases where the agents encountered barriers reaching the parolees; the agents diligently returned to serve once or twice per day and ultimately served these parolees one business day late. Thus, the timeliness rate was 97.5%, with half of the late cases fully excusable. Open cases were consistent with this analysis.40 This remains excellent performance.
Not accepting written admissions to a violation of parole made prior to the juvenile parolee meeting with counsel (¶ 17):
Defendants assert that they have ceased the routine practice of asking parolees to sign written admission forms. The Special Master has not encountered these forms in hundreds of revocation packets reviewed since 2009, and none has been identified by monitors. The parties disagree, however, as to whether this prohibition extends to the taking of oral statements during notice service and investigation, a common practice.
During the Mastership’s observations, there was a wide range of practice in this regard. One agent preemptively warned the parolee that statements could be used in revocation proceedings. Another stopped a parolee with a similar warning. Some engaged in conversation once a parolee initiated it. Two others solicited statements. Plaintiffs
18

Case 2:06-cv-02042-LKK-DAD Document 666 Filed 02/29/12 Page 19 of 51
noted 16 cases in their monitoring in which agents solicited statements, although there is generally no comment in the reports as to any resulting detriment.
Plaintiffs argue that a parole agent transcribing an oral admission is effectively the same as the parolee signing an admission form and they object to conversations of this nature in the absence of counsel. Plaintiffs aren troubled by what they describe as a conflict in the agent’s roles as investigator and representative of the State bringing the charges, on the one hand, and trusted advisor, which may make the juvenile more vulnerable when questioned by this person.
Defendants note that parole agents have always investigated violation charges and they do not compel the parolee to give statements. They say that, when parolees are forthcoming, it helps maintain the bond and fosters taking responsibility that furthers effective parole adjustment. Defendants see the parolees’ version of events, and any voluntary admission of misconduct, as potentially providing mitigation and helpful to determining whether alternatives to incarceration are appropriate.
Violation report within six business days (Exh. A): Nature of the practice: Whether the content of violation reports satisfies due process has not yet been monitored by either party or the Special Master. The parties dispute whether this step is a requirement of the Stipulated Injunction.41 Timeliness: There is no direct measurement of the timeliness of violation reports.42 The subsequent step – supervisor review of this work product – is timely at 99%. It thus appears that violation reports are either completed timely, or within one additional day and do not adversely affect the overall timeliness of revocation
19

Case 2:06-cv-02042-LKK-DAD Document 666 Filed 02/29/12 Page 20 of 51
proceedings. The Special Master is confident that parole agents are doing well in meeting this timeliness requirement.
Supervising Parole Agent review of packet within seven business days (Exh. A):
Nature of the practice: Neither party nor the Mastership has assessed Supervising Parole Agents’ practices when reviewing the revocation packet for probable cause and for completeness. On the same basis as with the violation report, the parties dispute whether this step is a requirement of the Stipulated Injunction.
Timeliness: It appears that only two cases were late at this step, an exceptional timeliness rate of 99%. The late cases were completed within two additional days. Open cases appeared consistent with this analysis.43
Requirements concerning attorney representation At the time of attorney appointment, provision of relevant educational, mental
health and disability identification and source documents (¶ 16): Defendants use a summary form, negotiated by the parties, to provide educational,
mental health, and disability information to attorneys and those making use of the field files. A dispute remains about what is sufficient to satisfy the requirement to provide source documents.
Right to be represented by counsel of choice; process for timely notifying the counsel of record of the imposition of a parole hold (¶ 18): Defendants have in place a system to notify counsel of record. Previously, this system operated consistently but with significant deficiencies in timeliness. Neither the
20

Case 2:06-cv-02042-LKK-DAD Document 666 Filed 02/29/12 Page 21 of 51
parties nor the Special Master’s team conducted a review during this Round. Reportedly, no attorneys outside of CalPAP represented youth in the revocation proceedings during the Round.44
Return to custody assessment (“RTCA”) within nine business days (¶ 29): Nature of practice: The Special Master was unable to observe hearing officers assessing at this stage probable cause and the need for continued detention, but there were two studies contributing to an understanding of this step. Defendants offer credible support for the effectiveness of this system in a CDCR attorney study of revocation packet materials to determine whether probable cause existed in cases that proceeded past this step.45 This well-structured review found that packets established probable cause for all charges in all cases, with only one possible exception.46 The Mastership conducted a supplementary review whose results indicated strong performance, but a few areas to work on.47 In the study, 92% of the revocation packets supported probable cause for all charges. The remainder showed probable cause for at least one charge but not for one or more others; this was identified at RTCA in some cases and the charges dismissed. Others proceeded to probable cause hearing and the unsupported charges were dismissed then; this could either indicate an oversight at RTCA, or checks and balances functioning well at the subsequent step. In 5% of the studied cases, however, at least one charge unsupported by probable cause, in the Mastership’s judgment, survived all levels of review. Together, these studies examined 40% of RTCAs, and are thus a significant piece
21

Case 2:06-cv-02042-LKK-DAD Document 666 Filed 02/29/12 Page 22 of 51
of the puzzle showing the system’s workings as to determining probable cause at the Board level.
Additional material shows that 12 cases, about 5% of the total reaching RTCA, were ordered dismissed or continued on parole in the Round.48 This demonstrates some consideration of both probable cause and the appropriateness of continued detention. While this is a fairly low number, it could be argued that this is the natural result of prior steps having culled the cases that can be decided on the papers, and that further decisions can most likely be made only with further evidence provided at probable cause hearing. Such a determination is not possible with the information available to the Special Master at this time.
Timeliness: Timeliness was very high, with every case meeting timeframes except one that concluded one day late.49 This continues to be very impressive practice.
HEARING PRACTICE Management guidance to support better hearing practice – both probable cause and revocation -- has been a need long-term, particularly when the hearing officer corps does not have a background in law and it faces any given legal issue rarely, given the low volume of hearings. It is very difficult to address what hearing officers encounter in training alone. Hearing officers do many things right. That they continue to improve even in these extremely difficult and uncertain times is a testament to their conscientiousness and integrity. The system also needs to be aware that, when dealing with unique or difficult issues, hearing officers can inadvertently create greater risks to due process. In an effort
22

Case 2:06-cv-02042-LKK-DAD Document 666 Filed 02/29/12 Page 23 of 51
to protect the parolee with a correct decision, they call for assistance, thereby risking the unfairness of a decision influenced by factors the parties cannot see or affect. In attempting to preserve one procedural principle, they sometimes violate another. They sometimes apply the law incorrectly.
Being able to spot these deviations and support more fair future hearing practice would remove a principal barrier to compliance, one of a handful of top priorities at this stage. DJJ has been able to take steps in this direction during the Round. The Executive Officer provides one-to-one debriefs occasionally by phone or in person. An officer of the day reviews each Board Order and sometimes hearing officers receive feedback from this. The Executive Officer is very responsive when issues surface, flagging them for training and for memos, including one emphasizing renewed focus on fundamental fairness in addition to the letter of LH requirements,. Good intentions have also been constrained by the State’s severe budget issues, including limiting how consistently these good practices can occur, and prohibitions on the travel that would allow hearing observation and mentoring.
The Special Master encourages the State to expand its efforts in this aspect of management, as it will pay huge dividends in the ability to provide fundamental fairness and thereby convince the Court to end its supervision.
Mechanical restraints at hearings (¶ 46): The Stipulated Injunction requires Defendants to develop policies, procedures,
and training concerning restraints that are consistent with the ADA, the Rehabilitation Act, due process standards, and Title 15 California Code of Regulations section 4034.4. It
23

Case 2:06-cv-02042-LKK-DAD Document 666 Filed 02/29/12 Page 24 of 51
also mandates that “Defendants shall not use any blanket policy of requiring mechanical restraints for all juvenile parolees in parole revocation hearings.” The parties negotiated these policies, which include a determination of the need for restraints based on one or more specified indicia of recent likelihood of violence or flight risk.50 Defendants have held related training.
In the Special Master team’s observations and review of Board Orders, Defendants executed this policy well at DJJ institutions and at other locations whose policies permit DJJ this discretion. Plaintiffs support this practice sometimes, and disagree in other cases where they assert that the violence reflected in the violation charges alone is insufficient under the policy’s criteria. In the Mastership’s reviews this Round, where Defendants exercised discretion, 17 parolees were not handcuffed, and 3 were restrained consistent with policy standards.
A dispute remains as to Defendants’ obligations in those nonDJJ facilities where policy mandates universal use of restraints. This applies to county jails, where DJJ hearings are commonly held, and in rare proceedings at CDCR institutions. These represented just over half of the Mastership’s reviews during the Round.51 Plaintiffs argue that Defendants are obligated to ensure the protections of LH are provided to DJJ parolees held under DJJ’s authority, regardless of hearing or housing location. Plaintiffs also object when the restraints decision is not documented in Board Orders, although improvements have reduced this to only five occurrences in Plaintiffs’ reviews this Round.
In the 21 not-in-custody-hearings, there reportedly was only one parolee who was handcuffed during the proceedings.52 This addresses well a previous concern that
24

Case 2:06-cv-02042-LKK-DAD Document 666 Filed 02/29/12 Page 25 of 51
parolees were routinely handcuffed in this setting, and appears more consistent with the judgment already made that these parolees do not present a danger to the community or a flight risk. Additionally, the Mastership did observe Defendants following policy to protect against pregnant parolees being put in belly chains.
Hearing space: While not a specific term of the Stipulated Injunction, concerns have been raised about using any hearing space in which a parolee is separated from other hearing participants. DJJ typically uses the same space at jails as the Board of Parole Hearings uses for adult probable cause and revocation hearings. The Board of Parole Hearings negotiated in late 2011 with five jails that had been separating parolees, and they agreed on space without such barriers. LH Plaintiffs observed a hearing, prior to negotiations, in which the parolee was separated, and they would object if the negotiated space was not now available to juvenile parolees. The Special Master has asked Defendants to look into this question to verify that the negotiated space is, in fact, in use for juveniles as well.
Probable cause hearing requirements Expedited probable cause hearings (¶ 26): There have been no requests for expedited probable cause hearings in any Round to date.53
Probable cause hearings within 13 business days after the hold is placed, including written bases for findings (¶ 32, 40):
Nature of Hearings Impressively, DJJ has made progress addressing each of the probable cause topics identified as high priority by the Special Master in the last Round. The cadre of hearing
25

Case 2:06-cv-02042-LKK-DAD Document 666 Filed 02/29/12 Page 26 of 51
officers that remains are among DJJ’s strongest. In the past, some hearing officers have struggled with certain hearing practices, or those practices varied widely between hearing officers. Currently, hearing officers have mastered several of these, and hearings are more consistent and fair because of it. Some of the most important improvements are:
 Consistently good interactive interviews to determine ADA accommodations and effective communication needs, and adjustments to fulfill many of those needs
 Documenting the probable cause for detention  Ensuring that Board Orders more closely reflect what went on in the hearing
room Interactive ADA reviews will be discussed in detail in the section titled ADA and effective communications accommodation infra, but hearing officers have taken important strides forward. It is now the norm to take the time needed, to assess the parolee’s present ability to participate, to ask follow-up questions regarding known conditions or issues of concern in the parolee’s demeanor, and to speak at a pace much more suited to facilitating understanding. Hearing officers and their leadership are to be congratulated on this very strong practice. As in the past, hearing officers consistently set a fair procedural tone, orienting parolees to the standard of proof and what to expect and advising them of their rights. These included informing parolees of the rights to choose a revocation hearing and to appeal, two practices that had dipped in previous Rounds but were well done in this one. One key inquiry into the health of the revocation system is whether hearing officers genuinely assess whether there is probable cause for each charge alleged. This question is of real significance in the DJJ system, in that probable cause is challenged in more than half of these hearings. The challenge is successful fairly often, with at least one charge
26

Case 2:06-cv-02042-LKK-DAD Document 666 Filed 02/29/12 Page 27 of 51
dismissed or amended in more than one-third of the cases in which it is raised.54 In the hearings the Master’s team observed, these arguments were usually assessed thoughtfully, although there were some troubling exceptions.
To be able to endorse the soundness of the system of probable cause reviews, the Mastership needs confidence that those exceptions are limited. Board Orders are of limited help in answering this question, as only a minority of applicable cases record the probable cause challenges. The more that Board Orders include the probable cause arguments made, and whether the hearing officers accepted or rejected these arguments, the more Defendants will be able to demonstrate that they are delivering due process.
The LH system builds in a number of safeguards to ensure there is probable cause, including two reviews by a parole unit supervisor, a hearing officer review at the Return to Custody Assessment, and the probable cause hearing itself. As described supra, two studies support a finding that the system is protecting against youth being incarcerated when there is no probable cause at all. The Mastership’s study, however, suggests that there are still small gaps in the system’s ability to identify charges that do not meet the probable cause standard.
Defendants argue that, as long as there is probable cause for at least one charge, there is no harm if there are also probable cause findings on other charges without sufficient basis. The Special Master disagrees. As an initial matter, it is an inherently unfair system if one says that the system need not concern itself with unfair charges going forward, so long as one charge is fair.
As to individuals, without a doubt, the greatest harm would exist if a parolee was wrongly incarcerated. Other types of harm exist if he is revoked on some supported and
27

Case 2:06-cv-02042-LKK-DAD Document 666 Filed 02/29/12 Page 28 of 51
some unsupported charges; this can cause longer revocation terms and prevent alternative placements. These risks apply not only to the instant revocation proceedings but to all future decisions based on parole adjustment, which can vary greatly if his record shows harsh crimes, a high volume of violations, or violations suggesting he is unamenable to supervision. This is unfair if charges in his record were unproven and/or he did not commit them. .
One component of probable cause analysis is identifying the evidence the hearing officer is relying upon in reaching her decision. Defendants have been very responsive to the Special Master highlighting this as a priority; much improvement was evident in the Sixth Round and it was sustained during this Round. While the specific link was not always clearly made aloud in the hearings, the corresponding Board Orders reflected this in the vast majority of observed cases, giving parolees a good basis for understanding and for appeal if necessary. Occasionally, hearing officers’ comments suggested they were treating uncharged “facts,” or the actions of another, as though they were charges against this parolee. They should still strive to keep this in check, but it was greatly reduced in this Round’s observations.
A probable cause analysis includes a separate analysis of whether there is probable cause to detain, and there is major improvement in this practice. Defendants added a database feature that requires hearing officers to enter whether there is probable cause to detain during hearings in which the hold is retained. This has been consistently in use since September 2011.55 It is a helpful tool to encourage hearing officers to conduct this analysis. Indeed, all Board Orders associated with the Special Master team
28

Case 2:06-cv-02042-LKK-DAD Document 666 Filed 02/29/12 Page 29 of 51

observations had a discussion of probable cause to detain in the narrative, and 80% of

them did so effectively.

In addition to specifying the factual basis for findings and determining probable

cause to detain, reviewed Board Orders universally recorded ADA information and

restraints. Most covered consideration of alternatives to incarceration, though 17% did

not. Occasionally, some of these sections were minimal or unclear, but for the most part

were done well. Parolees consistently received a written hearing record at the conclusion

of the hearing, an important due process right specified in Morrissey and provided for in the Stipulated Injunction.56

Timeliness

Probable cause hearings continue to be run with exceptional timeliness, including in

cases where special handling is required. All cases following the usual procedures

(“mainstream cases”) and extradition cases were timely and open cases were consistent with this.57 Time waivers came back to calendar within the time waived. Postponements were generally rescheduled in a reasonable time.58 Successful appeals, too, were reheard within the time prescribed by the Stipulated Injunction.59 The rare timeliness exceptions60

were:

1 mainstream case

1 day late

1 supplemental case

10 days late

An analogous proceeding, the optional waiver review, was also held within 13 business days, and generally much sooner, in all cases.61
Defendants’ scheduling staff have set up well-functioning systems; addressed small, problematic patterns in previous Rounds, and have maintained those improvements

29

Case 2:06-cv-02042-LKK-DAD Document 666 Filed 02/29/12 Page 30 of 51
during this Round for a consistent, high-performing system. They are to be congratulated. Definition of presumed prejudice (¶ 32): Defendants assert that the parties
negotiated one definition to be used for both types of hearings, while Plaintiffs indicate that a definition applying to probable cause hearings remains to be developed. This remained unchanged during the Round.
Requirements related to revocation hearings: Final revocation hearing on or before 35 calendar days after the parole hold is placed (¶ 33, 37):
In assessing this requirement, there are a number of considerations. The system must consistently provide timely hearings in the usual course of revocation proceedings. It must also function to provide hearings timely to special populations, sometimes small groups whose circumstances dictate counting timelines differently or suspending and resuming proceedings once conditions have been met. In operation, the hearings must provide due process, satisfying questions such as fairness, opportunity to be heard, elements of the violation proved sufficient for the applicable standard, and consideration of appropriate sanctions.
In this Round, the Mastership analyzed 22 revocation hearings – 58% of those conducted – including seven that were conducted “not in custody.” There are no significant differences between revocation hearings held in the usual course, as a not in custody hearing, or in the context of a revocation extension.
30

Case 2:06-cv-02042-LKK-DAD Document 666 Filed 02/29/12 Page 31 of 51
Nature of Hearings Hearing officers consistently honor procedural protections such as detailed advisements of hearing rights and appellate rights, including a recorded hearing copy; swearing in witnesses; and reading charges and taking pleas.62 They generally describe the right to meaningful participation as protected by the ADA and the constitution, and they take steps to assess parolees’ ability to participate and to provide accommodations. This is discussed more fully in the section titled ADA and Effective Communications Accommodation, infra. Parolees are afforded the right to be heard and to present witnesses and documents. Counsel frequently offer legal arguments challenging the bases for one or more of the charges. Hearing officers are open to these arguments and generally consider them, sometimes agreeing and dismissing individual charges or the full case. In a minority of cases, the argument is not acknowledged, and it is unclear whether it has been taken into account. There are greater problems in the handling of the State’s evidence, and Plaintiffs voice strong objections to the practices described in the remainder of this section. Hearing officers have improved in calling for parole agents to lay the foundation, rather than reading it into the record themselves. It is a double-edged sword, however, that revocation packets are available ahead of the hearing. It undoubtedly strengthens hearing officers’ ability to assimilate and make sense of complex information and reflect on the presence or absence of sufficient proof. It also leads to significant information sometimes being taken into account that has not come out at hearing, and is therefore untested, especially where Board Orders are drafted ahead.
31

Case 2:06-cv-02042-LKK-DAD Document 666 Filed 02/29/12 Page 32 of 51
Some of this untested information includes hearsay in the file documents, an issue on a broader scale that the hearing panels have not mastered. The Mastership observed more than half of the hearings in which a hearsay challenge arose, and reviewed the Board Orders for all such cases.63 Only one included all of the factors and expressly conducted a balancing.
Most commonly, decisionmakers would reach a conclusion after conducting only the State’s side of the balance,64 or would treat the objection as a motion to dismiss for insufficient evidence without considering whether the statements could come in. There were also instances of using other unadmitted hearsay as corroboration, facts not in evidence for this purpose, or the statement at issue to corroborate itself, or the corroborative evidence was assessed for reliability rather than doing so for the challenged statements. In the middle of an analysis of one piece of potential evidence, parole agents would introduce a string of new hearsay items, muddying the waters and making it difficult for hearing officers to separate out what they could and could not take into account. At least twice, there was a spontaneous ruling without stating any basis and, occasionally, hearing officers would not record the objection at all.
It is useful to consider the types of problems this engenders. At the broadest level, if hearing officers do not understand the principles governing hearsay admission, the system risks delivering arbitrary and unpredictable results. This is an unfair system on its own. Additionally, there may be cases where that risk is not only present but actualized; there, the parolees would be revoked based on the unfair use of evidence.
It is fortunate that, in nearly every case with problematic analysis in this Round, the hearsay was not admitted or the charges were dismissed for this or other reasons. In
32

Case 2:06-cv-02042-LKK-DAD Document 666 Filed 02/29/12 Page 33 of 51
the Special Master’s judgment, only one analysis was unsupportable in reaching the conclusion that the hearsay was admissible; nevertheless, it arguably could have come in under a correctly applied balancing test. Thus, all, or nearly all, of these particular parolees do not appear to have been harmed. However, the risk remains high for parolees being unfairly revoked if hearing officers do not possess an understanding of when it is reasonable to base a decision on this kind of evidence. Both parole agents and hearing officers need substantial guidance in understanding this component of revocation hearings.
In related practices, Defendants permit substitute agents to testify when the agent of record is unavailable; this usually occurs automatically and without a confrontation rights analysis. There are cases in which only the agent of record can answer questions necessary to proving or disproving an allegation and the parolee’s right to confront that adverse evidence is foiled by the State’s practice and without the State having to meet its burden under controlling case law. On the other hand, the State handled a fearful witness well under its policy balancing the right to confront with the witness’ rights, in the two cases that came to the Special Master’s attention during this Round, as well as in previous Rounds.65
Hearing officers’ knowledge was more clearly reflected in their handling of other types of legal objections during the Round, such as lesser included charges, timeliness of evidence provision, and permissibility of special parole conditions. Likewise, objections concerning procedural issues such as LH timeframes were handled well.66 In each observed hearing in which there was a parolee admission, the hearing officer’s findings appropriately drew from independent evidence as well, an improvement from the past.
33

Case 2:06-cv-02042-LKK-DAD Document 666 Filed 02/29/12 Page 34 of 51
The Special Master’s reports have previously commented on the practice of consulting with the Executive Officer, staff, or an attorney during a hearing and outside the presence of hearing participants. While it is understandable to want clarity about policy and legal questions, it introduces factors into the decisionmaking that the parolee and agent cannot challenge or test. This occurred several times during Plaintiffs’ monitoring. There was also a postponement while testimony was underway; while this was meant to remedy a procedural mistake, it has its own problems.
Plaintiffs also take exception to the same hearing officer presiding over a probable cause and revocation hearing, or other sequential proceedings, for a parolee, citing one to two occurrences per month in the monthly productions or onsite observations. Defendants assert that neither the constitution nor the Stipulated Injunction require a different hearing officer at each stage, as the evidentiary standards are different and the hearing officers are capable of separating what occurred at the probable cause hearing from the evidence available at the revocation hearing.
Plaintiffs also find objectionable language indicating that a parolee is being returned to custody “for treatment and training” or for mental health treatment, particularly under conditions where Plaintiffs assert these services will not be forthcoming.
Fairness and due process also require that parolees be informed of the evidence on which the hearing officers are relying in reaching their conclusion. This was a common practice in the hearings the Mastership observed, with few exceptions. Moreover, this was very well covered in Board Orders,67 an important improvement. Orders always discussed ADA considerations and about 80% of reviewed orders covered restraints use
34

Case 2:06-cv-02042-LKK-DAD Document 666 Filed 02/29/12 Page 35 of 51
and alternatives to incarceration. In the Mastership’s reviews, a minority of cases omitted one to two objections. Plaintiffs’ analyses more often identified missing objections or ADA descriptions, or incorrectly recorded pleas.68 They commented on some instances where information in the order was not discussed in the hearing, though the Special Master notes that this appears much less often than in the past. This is an important improvement in response to the priorities highlighted in the Special Master’s last report. Plaintiffs discuss the difficulties attendant to a system that allows modifications to orders but does not identify them; Defendants do note that such revised orders are sent to attorneys.
Onsite, the Mastership observed the Board commonly providing a written record to the parolee and attorney, with provisions for staff and/or the attorney to follow up with a copy in the rare instances when printing was not immediately possible. CalPAP data confirms that only eight orders, for any type of proceeding, were unavailable at the end of the hearing; most were provided later the same day, with two exceptions taking three and seven days.69
Discussing alternatives to incarceration, and ordering them as the disposition, was very common in revocation hearings. For more detail, please see the section titled Alternatives to incarceration, infra.
Timeliness All revocation hearings were timely, an extraordinary accomplishment. All cases following the usual course in custody, and those not-in-custody, were held timely.70 There was only one revocation hearing following an optional waiver activation and it was held timely.71 The six cases postponed at this step were heard within a reasonable
35

Case 2:06-cv-02042-LKK-DAD Document 666 Filed 02/29/12 Page 36 of 51
rehearing time.72 No extradition cases proceeded to revocation hearing.73 Periodic reviews of open cases were consistent with this analysis.74 The one case set for rehearing after a successful appeal was held only one day beyond Stipulated Injunction requirements.
The frequency of revocation hearings continued to drop to an average of 5 per month, for a total of 39.75 More than half took place “not in custody.”
Supplemental charges (¶ 34): During this Round, five parolees faced supplemental charges.76 The times to discovery ranged from three days to one month. All were handled timely from the discovery date, and two were handled timely according to timeframes for the original charges. None resulted in a parolee being sentenced beyond the one-year maximum.
Definition of good cause for delay, remedy for timeframe violation (¶ 33): The parties have agreed on a definition of good cause for delay and day-for-day time credit remedies for probable cause hearings held after 35 days, revocation hearings, and revocation extension hearings. The Special Master verified that no probable cause hearing exceeded 35 days without a parolee-initiated waiver.77 There was one late revocation hearing and the time credit was applied.78 Prejudice is presumed, and the case will be dismissed, if, absent good cause, a revocation hearing has not been held by the 90th day after the hold.79 To the Special Master’s knowledge, no cases exceeded 90 days to resolution unless there was a parolee time waiver exceeding that.80
36

Case 2:06-cv-02042-LKK-DAD Document 666 Filed 02/29/12 Page 37 of 51
Requirements related to disposition Alternatives to incarceration (¶27) The Stipulated Injunction requires Defendants to “consider whether alternatives to
incarceration are warranted [at the initial case conference]. The advisability of alternatives to incarceration shall be considered again at the Probable Cause Hearing and at the Revocation Hearing.”
Alternatives to incarceration are considered and frequently given in the DJJ parole supervision and revocation systems. As discussed supra:
 38% of the events that parole agents identified as violation behavior were handled with corrective action plans and were not sent into the revocation process
 among the holds placed, 34% were resolved at the parole unit and did not go to any hearing.
 at the next step, the Return to Custody Assessment, 5% of cases were continued on parole or dismissed.
While monitoring was not as comprehensive, it revealed substantial consideration and use, particularly at revocation hearings. At the probable cause hearings or optional waiver reviews the Mastership observed, just over half expressly discussed alternatives to incarceration and one parolee was placed there. Where it was not discussed, sometimes the parolee was sentenced to a new prison term or was pending local charges; while these would render immediate placement moot, it is still good practice to mention and document how they inform this disposition decision.81
At revocation hearing, however, the great majority discussed alternatives, usually at length. Only two cases failed to do so without apparent reason. Moreover, more than
37

Case 2:06-cv-02042-LKK-DAD Document 666 Filed 02/29/12 Page 38 of 51
one-third were granted alternatives, as well as almost one-quarter that dismissed all charges.82 Plaintiffs’ analysis of a variety of hearings noted 9 where alternatives were granted, two where such placements were discussed but rejected, and only one where consideration was not evident.
As noted infra in the section titled Prohibition of discrimination in parole placements and referrals to services, as well as in previous reports of the Special Master, Plaintiffs’ counsel would like much more information about the programs in use and the criteria for, and frequency of, referral.
Limiting return to custody time to one year; use of a matrix of ranges of revocation terms (¶ 35):
Defendants have had a revocation matrix in place since 2009. To the Special Master’s knowledge, no revocation terms have exceeded one year, with the exception of a handful of supplemental charges in some previous Rounds. No new information came to the attention of the Special Master during this Round.
Requirements related to ADA and effective communication ADA and effective communications accommodation (¶ 23, 48, 50, 52, 53): The Stipulated Injunction requires Defendants to identify and track disabilities and effective communication needs and to provide accommodations, including equipment, for notice service, attorney-client consultations, hearings and other aspects of parole proceedings. As detailed in previous reports of the Special Master, Defendants have in place an
38

Case 2:06-cv-02042-LKK-DAD Document 666 Filed 02/29/12 Page 39 of 51
electronic database for this purpose and systems for collecting and updating relevant information in the paper files in use for revocation hearings. In equal detail, the reports have discussed the shortcomings of those systems, which generally take the form of inconsistent records, tracking of the conditions but not the preferred accommodations, and limited utility of data reports.
Plaintiffs’ monitoring continues to capture dozens of problems, or potential problems, concerning ADA-related needs.83 At approximately 70 examples in this Round, this constitutes a large proportion of the cases they reviewed. Most commonly, the comments focus on information not carried forward from one information source, or contradictory between two sources. Without doubt, this carries risks – that key information will be lost over time, or disregarded if it cannot be reconciled, and that in those instances perhaps accommodations would not be provided. In the current examples, however, that risk is reduced because the needed information is available to the parole agents and hearing officers in the database and/or revocation packet, even if it is not on each form in those sources, as policy requires. Staff consistently say they consult both sources before each revocation-related contact, and the thoroughness with which they cite the files’ contents during the interactions the Mastership has observed supports this inference.
In a subset of reported cases, Plaintiffs are concerned that indicia of a need, such as a language interpreter, was not explored and established or ruled out, or that an accommodation provided was not sufficient. As to language interpreters, Defendants indicate that policy requires staff to record why none was provided when another primary language is in the parolee’s record; Plaintiffs’ monitoring suggests they encountered
39

Case 2:06-cv-02042-LKK-DAD Document 666 Filed 02/29/12 Page 40 of 51
instances when that policy was not followed. As to accommodations concerns, Plaintiffs are particularly concerned that Staff
Assistants are needed for parolees with certain cognitive impairments, asserting that these are DJJ staff with specialized training for this purpose. Defendants respond that parole agents are extensively trained in the ADA and effective communication. They assert that attorney assistance should be sufficient and that Staff Assistants are not required under the Stipulated Injunction.
With all of the foregoing issues, Plaintiffs do not describe observing parolees failing to understand or participate, nor receiving those complaints from parolees. It appears that the concern is that insufficient attention to these protections carries great risk that failure to understand is going undetected and that the effects of insufficient accommodation may be more apparent in the future if not addressed proactively.
In addition to files, much identification lies in the hands of DJJ staff at the different steps of the revocation process. The expectation is that parole agents and hearing officers will check the electronic and paper files before contact and conduct an interactive interview to encourage the parolee to disclose any needs for help and to assess his or her current ability to participate in the meeting or hearing. If accommodations needs are surfaced, it is also those staff’s obligation to provide for them, giving preference to the type the parolee requests.
The limitations of some parole agents’ practice is discussed in the section headed Notice of Rights and Charges, supra, and certainly needs addressing. The Special Master did not learn about whether the Board provided assistive devices and interpreters when needed for attorney-client interviews; they have been regularly available at the hearings
40

Case 2:06-cv-02042-LKK-DAD Document 666 Filed 02/29/12 Page 41 of 51
the Mastership has observed for several years. Hearing officers have greatly improved their interactive interviewing and
assessment, as well as adjusting their speaking styles to make communication more effective. In Plaintiffs’ reviews of the current hearing officers, they found good practice in more than 75% of the cases. The Mastership’s findings were similar or better. Particularly good additions include asking questions beyond the initial set that appear aimed at assessing the quality of the parolee’s interaction, and a number of questions to follow up identified conditions to determine whether they are having a current effect.84 Refinements will always be beneficial, but this is very good progress.
In terms of accommodations, vision assistance and speaking slowly while breaking down complex concepts and terms were most commonly needed and provided. Monitors noted a few deviations, but this occurred much less than in the past. Hearing officers are clearly making an effort to slow down the information stream, prepare parolees for what to anticipate, translate terms or give examples, and create an atmosphere in which asking for help is acceptable, all of which make information absorption easier. Most stop periodically in the hearing to ask the parolee if he understands, and some use the opportunity to ask him to paraphrase what they are discussing, an excellent practice. Several assess the parolee again if he or she seems to disengage from the proceedings or appears confused.
Of particular note was the extra attention given to two mental health patients, particularly a team effort involving the hearing officer, a staff assistant and a psychologist supporting the parolee, assessing his abilities, and making adjustments throughout an extended hearing. In a handful of other observed cases, a staff assistant participated. The
41

Case 2:06-cv-02042-LKK-DAD Document 666 Filed 02/29/12 Page 42 of 51
need for interpreters was rare but there were examples of employing them in this Round. It is important to note that certain deficits require specific types of accommodations
beyond speaking slowly and using simple language. The Special Master encourages Defendants to review these cases to ensure that the specified accommodations are provided and demonstrable.
Prohibition of discrimination in parole placements and referrals to services (¶ 27): It is difficult to prove discrimination in placements and services, and it is difficult to prove its absence. Defendants offer that there have never been complaints of discrimination. Plaintiffs note that discrimination may be apparent from the face of contracts or policies, or there may be discriminatory practices in the way the contract is applied by a program or Defendants. The parties have struggled with this question. They determined that Defendants would provide their contracts that require community service providers to comply with the ADA. Defendants note that this provision is contained in a standard attachment to all contracts, and have provided several such example contracts.85 Defendants have produced to Plaintiffs a list of contract service providers from the prior fiscal year and projections of contracts to be renewed or re-bid,86 as well as copies of a number of provider contracts at different points during the Round – some were transmitted with the attachment with ADA language and some were not – and intend to send others as they are completed. Plaintiffs have been very frustrated with the pace and scope of information availability. They have sought program information long-term and anticipated that the contracts would be provided soon after reaching agreement in May 2011. The parties
42

Case 2:06-cv-02042-LKK-DAD Document 666 Filed 02/29/12 Page 43 of 51
subsequently agreed it would be sensible to provide current contracts after they had been finalized in the new fiscal year. It is unknown why, more than halfway through that fiscal year, quite a number of contracts reportedly remain in process.
There is not yet agreement on what information and actions are sufficient for Defendants to meet their obligation to protect against discrimination in this context.
Develop an ADA grievance procedure (¶ 54): Defendants have put in place an ADA grievance procedure and routinely distribute the form when parole agents serve the notice of rights and charges.87 The Special Master has also observed Defendants’ staff making parolees aware of the ADA grievance procedure during some hearings. Defendants report receiving no grievances raising a failure of accommodation during the Round.88
Development of an appeal process (¶ 43): Defendants operate an appeal process with the components required in the Stipulated Injunction. Defendants document ten appeals handled during the Round.89 Among them, one appeal was granted resulting in the parolee’s release, and two more were granted, in whole or in part, and given a rehearing. For the most part, reasoning was sound90 and, in the case of some rehearings, was particularly conservative in ensuring that the parolee’s participation was knowing and voluntary. All processing was handled timely. There is an additional mechanism termed decision review, in which Defendants review each Board Order for mistakes of fact, law, or policy. Parolees and the Parole
43

Case 2:06-cv-02042-LKK-DAD Document 666 Filed 02/29/12 Page 44 of 51
division can also request that a decision be reviewed using these criteria. Where the reviewer determines a needed change is potentially adverse to the parolee, a rehearing is ordered. There reportedly were no rehearings during this Round.91
Comprehensive annual training on ADA and effective communication, the Stipulated Injunction's requirements, policies and procedures, due process (¶ 56):
Defendants have offered training, periodically through implementation, to all types of staff in all relevant divisions. During this Round, the Board provided annual training to hearing officers on a variety of LH-related topics. Importantly, this year’s training was very well-designed based on adult learning principles; it was engaging and covered core topics of due process very effectively. Assessment of ADA and effective communication needs was a weak point, but Defendants followed up with supplementary materials.
To the Special Master’s knowledge, Facilities and Parole divisions did not conduct training during the Round, particularly because all juvenile parole agents continuing to work with the State were engaged in the academy for new adult parole agents for several months in the last quarter of 2011.
Monitoring process Each year, the parties have reached agreements concerning a detailed monthly production of documents and recordings, as well as onsite visits, by which Plaintiffs may review implementation. The parties have exchanged proposals for 2012 and discussions are ongoing. The Stipulated Injunction requires Defendants to develop self-monitoring to ensure compliance with its terms and with relevant policies and procedures (¶ 57). Defendants
44

Case 2:06-cv-02042-LKK-DAD Document 666 Filed 02/29/12 Page 45 of 51
report that the monitors in the Office of Audits and Court Compliance responsible for Valdivia are adding LH audits to their responsibilities. Very large, detailed audit tools were finalized during the Round after adopting some of the comments from Plaintiffs and the Special Master.92 The first audit under these new arrangements reportedly is underway, examining eight LH-related practices that occur within juvenile facilities, principally concerning attorney access and confidentiality, as well as an ADA grievance procedure.93
As described in detail in prior reports of the Special Master, Defendants continue to maintain various management oversight practices in day-to-day operations, monthly analysis and reporting of all cases late at any step, and decision review of Board Orders. For the most part, these continue to operate well although, as discussed elsewhere in this report, the occasional lapses in spotting and addressing key due process issues are of concern.
Elimination of “temporary detentions”; immediate rescission of relevant regulation (¶ 39):
The Stipulated Injunction requires Defendants to “immediately rescind Title 15, California Code of Regulations § 4985,” which concerns this practice. Defendants report that this regulation and Title 15, California Code of Regulations § 4826 were repealed in prior Rounds and that they have reinforced repeatedly with staff that this practice is no longer permitted. In prior Rounds, Plaintiffs have raised concerns that some cases give the appearance of circumventing the prohibition. No new information came to the attention of the Mastership during the Round.
45

Case 2:06-cv-02042-LKK-DAD Document 666 Filed 02/29/12 Page 46 of 51
Recommendations The Defendants have demonstrated compliance with several requirements of the Stipulated Injunction. I therefore recommend that the Court order that the following requirements are substantially compliant, and that the subjects will therefore no longer be a primary focus of Plaintiffs’ or the Special Master’s monitoring unless and until it comes to the parties’ or the Special Master’s attention that there has been a significant decline in compliance. These orders should apply to the following requirements:  Tracking mechanism for timeframes and reasons for delay (¶ 13, 32, 33)  Level I and II behavior may be resolved at the parole units (¶ 25)  Evidence on the same terms as the state (¶ 33)  Revocation Extensions (¶ 35, 40)  Release within three business days for certain dispositions (¶ 38)  Right to hearing recordings (¶ 41)  Dual commitments (¶ 45)  Proceedings occur without delays when accommodations or effective communication assistance is needed (¶ 51)  Forms in alternative formats (¶ 55)
Pursuant to the Order of Reference to the Special Master, the Special Master's reports shall be final unless, no later than twenty (20) days after service of the final report, a party files written objections with the Court. If any party files objections, the opposing party shall have twenty (20) days to file a reply to the objections with the Court. ///
46

Case 2:06-cv-02042-LKK-DAD Document 666 Filed 02/29/12 Page 47 of 51
If objections are filed, the Court will consider the matter and issue an order adopting the report in full or as modified, or rejecting the report.

Respectfully submitted,
/s/Virginia L. Morrison
Virginia L. Morrison Special Master

February 28, 2012

1 These took place at Los Angeles and Fresno county jails, Rio Consumnes Correctional Center, Chula
Vista Detention Facility, and San Diego Central Jail. Attempts to observe notice service on other occasions
were unsuccessful. 2 Informal communication from Defendants 3 Hearings may well conclude at an earlier time if the population becomes so small that the cost of maintaining a system for them is untenable. 4 CN410 Parole Violation Process, most recent revision provided to the Special Master is signed Sept. 15,
2010 5 Spreadsheet titled 2012 Alternatives to Revocation (May through Dec. 2011 only); Optional Waiver
CalPAP May through Dec. 2011 6 Closed Case Summary and NIC Cases, each run for May through Dec. 2011 7 Spreadsheet titled 2010 Alternatives to Revocation; Closed Case Summary, NIC Cases and Optional
Waiver CalPAP each run for Jan. through Sept. 2010 8 DJJ Rev. Extension Cases Closed for each of April through Nov. 2011 9 Closed Case Summary – Revocation Extension Jan. through Dec. 2011; three associated individual
records in electronic folder titled Rev Ext 10 DJJ Rev. Extension Cases Closed for each of April through Nov. 2011; Closed Case Summary – Rev Extension Dec. 2011 11 Id.; for the previous Round, please see these reports for that time period in Materials Relied Upon for the OSM 6th Report 12 Defendants examined all cases with an order of dismissal, continue on parole, or credit for time served
issued in 2011. It is possible that there were also orders for a revocation term that concluded on or before the date of the order, but these are highly impractical to identify and not likely to be a large group. Defendants’ study, therefore, can be considered a very large sample. Spreadsheets with the electronic file names LH COP DIS Release Drill 10 3 11.xlsx and Release Compliance Drill 1-4-12 … Final.xls, letter
from J. Bole to V. Morrison Oct. 21, 2011 13 Email communication from J. Bole to V. Morrison, Jan. 17, 2012 14 CN410 Parole Violation Process, most recent revision provided to the Special Master is signed Sept. 15, 2010 15 Dual Parole Status Report Jan. 13, 2012; document with electronic file name Duals as of 1-13-12.xls;
individual records in electronic folder titled Duals 16 See, e.g., contents of electronic folder titled Policies as of 10-2010 (annual revise) 17 Closed Case Summary – Postponement for May through Dec. 2011 and for Oct. 2010 through Apr.
2011; see also contents of electronic folder titled Timeliness 18 Other Objections for each of May through Nov. 2011; for prior periods, please see this report contained
in Materials Relied Upon for previous reports of the Special Master; informal communication with CalPAP 19 See, e.g., reports in electronic folder titled Plaintiffs’ analysis 20 NOR Timeliness May through Dec. 2011; Closed Case Detail for each parole unit underlying that report;
all individual records associated with the latter reports
47

Case 2:06-cv-02042-LKK-DAD Document 666 Filed 02/29/12 Page 48 of 51
21 See June 2010 memos distributing Spanish and large print forms; 23 forms and their Spanish counterparts; and email communication in the electronic folder titled “simplified & translated forms” 22 See reports of the Special Master for Rounds one through six, LH Document Production (itemization) for each of May through Nov. 2011. 23 DJJ Date Case Assigned Compliance Report for each of May through Nov. 2011 24 During this Round, there were six objections concerning discovery. This number of objections also occurred in the previous Round and was of concern. On examination of the cases in the instant Round, the Special Master determined that these generally are not objections about the State using evidence and not providing it to counsel. Rather, these are assertions that counsel finds that this evidence would be important and would like it gathered from other sources. The hearing officers’ rulings were appropriate. Other Objections for each of May through Nov. 2011; relevant individual parolee revocation packets 25 This is distinguished from the separate requirement for counsel of choice, which remains subject to full Court oversight 26 Continued compliance confirmed by informal communication with CalPAP, Jan. 2012 27 DJJ NIC Cases Closed for each of May through Nov. 2011; Closed Case Summary – NIC Cases for the same time period; seven individual hearing records in electronic folder titled OSM Observations 28 There was one case that did not meet that requirement. The hearing proceeded over the parolee’s objection. Plaintiffs concluded, after their review of the tape, that the distance contributed to the principal adverse witness not being present for cross-examination; the Special Master heard no facts to that effect in the hearing record. The parolee’s witnesses did appear. CalPAP DJJ Statistics 50 Mile Report for each of May through Nov. 2011; Other Objections DJJ Hearings Held Sept. 1-30, 2011; hearing recordings and orders for the relevant parolee; letter analyzing October document production dated Dec. 9, 2011 29 LH Document Production (itemization) for each of May through Nov. 2011; no appeals on this basis 30 Closed Case Summary and NIC Timeliness reports for each of May through Dec. 2011 31 Closed Case Summary May through Dec. 2011 32 Policy titled Psychiatric Suspension of Revocation Proceedings, approval date Feb. 15, 2011; Policy Bulletin 11-01; related forms; informal communication from Defendants dated Jul. 11, 2011 33 Contents of electronic folder titled Regulations 34 Closed Case Summary, and Closed Case Detail PCD late, May through Dec. 2011; individual records associated with it. While these reports show seven cases late at this step, only one was genuinely late. This was a supplemental case initiated two weeks after discovery; the parolee was already revoked on other charges, so this did not affect his time in custody. The other cases appearing late were supplemental cases handled timely, a timely case with a data entry issue, and one parolee held in Arizona whose DJJ case was later administratively closed. See also spreadsheets titled open case summary 8 4 2011.xls and open case summary 11 16 2011.xls 35 NIC Timeliness, and Closed Case Detail PCD late, May through Dec. 2011; individual records associated with it; spreadsheets titled Timeliness Report Dec. 1-31, 2011 and DJPO Timeliness Report NIC Closed Cases Nov. 1-30, 2011; informal communication with Defendants 36 There was an exception in one case in which the agent did not provide the ADA grievance form. While he said he would return with it, the parolee later confirmed that he did not. 37 The review consisted of 85 charge reports, 33% of all such reports served in the Round. Closed Case Summary, and Closed Case Summary – NIC Timeliness, both for May through Dec. 2011; Closed Case Detail PCH May through Oct. 2011 and Nov. through Dec. 2011; individual records in the electronic folder titled NORs, Charge Reports 38 Individual records in electronic folder titled NORs, Charge Reports 39 Sources for this analysis are NOR Timeliness May through Dec. 2011; NOR Timeliness Detail for each parole unit for this period; individual records associated with these reports; DJPO Timeliness Report NIC Closed Cases Nov. 1-30, 2011 40 Spreadsheets titled open case summary 8 4 2011.xls and open case summary 11 16 2011.xls 41 Defendants contend that the Stipulated Injunction expressly excluded this step as a requirement by the language “The flowchart does not create any rights beyond those expressly set forth in ¶¶ 1 to 57.” It is Plaintiffs’ position that the steps in the flowchart are part of the Stipulated Injunction because it “incorporate[d] by reference” the flowchart and the flowchart is attached as an exhibit. 42 The revocation database appears to do so, but the date entered in that field reflects different activity.
48

Case 2:06-cv-02042-LKK-DAD Document 666 Filed 02/29/12 Page 49 of 51
43 Closed Case Summary, Closed Case Summary – NIC Timeliness, and Closed Case Detail for the late cases at this step associated with these two reports, all for May through Dec. 2011; individual cases in electronic file titled Timeliness; spreadsheets titled open case summary 8 4 2011,xls and open case summary 11 16 2011.xls 44 Document Production Itemization for each of May through Nov. 2011 45 The review consisted of a 20% sample of all probable cause hearings, chosen by random selection method, over a six-month period. This was a total of 32 cases. 46 In that exceptional case, there was found to be probable cause for at least one charge and the others were likely supported by physical evidence cited at the hearing but not available to the reviewer. Documents with the electronic file names PC Study 11-11.xls, PC Study #2_1 13 2012.xls; PCH Hearings (Oct-Dec 2011).doc 47 Revocation packets were drawn by accidental selection method for a total of 65, or 27% of the cases reaching this step in the Round. This was supplemented by reviewing the RTCA screen and/or the probable cause Board Order when necessary. See contents of the electronic folder titled “PC violation reports” 48 Spreadsheets with the electronic file names LH COP DIS Release Drill 10 3 11.xlsx and Release Compliance Drill 1-4-12 … Final.xls; Closed Case Summary and Closed Case Summary – NIC Timeliness for May through Dec. 2011 49 The cases that appeared late were not; they were generally supplemental cases that were then reviewed according to the standard timeframes after discovery. One of these supplemental cases was one day late at this step, and one other case appeared late because of a data entry issue. Open cases were consistent with this analysis. Closed Case Detail Step RTCA, May through Dec. 2011; individual records in electronic file titled Timeliness; Closed Case Summary – NIC Timeliness May through Dec. 2011; spreadsheets titled open case summary 8 4 2011,xls and open case summary 11 16 2011.xls 50 CN416 Juvenile Parole Revocation Process, Juvenile Parole Board, , most recent revision provided to the Special Master is signed Oct. 7, 2010 51 Only one of these occurred in CDCR. While the reviews totaled 16% of all hearings in the Round, this may not be representative as they were not randomly chosen. 52 CalPAP DJJ Statistics Use of Restraints in NIC Hearings for each of May through Nov. 2011; Closed Case Summary – NIC Cases for the same time period 53 CalPAP Requested Expedited Hearings, Feb. 1, 2009 through Dec. 31, 2011 54 DJJ- Challenges to Probable Cause May 1, 2011 – October 31, 2011; Closed Case Summary for the same period; individual records in electronic folder titled PC challenge cases 55 See, e.g., the 90 probable cause hearing orders contained in the electronic folder titled “PC challenge cases” 56 For a discussion of the infrequent exceptions, please see the Revocation Hearing section 57 Closed Case Summary – LH Timeliness, Closed Case Detail – LH Timeliness Rules PCH, and Closed Case Summary – Extradition both for May through Dec. 2011; individual records associated with these reports; spreadsheets titled open case summary 8 4 2011,xls and open case summary 11 16 2011.xls. Accord DJJ Clients Transferred Late and DJJ PCH Held for each of May through Nov. 2011 58 Closed Case Summary – Postponement May through Dec. 2011 and associated individual records 59 Id. 60 All other cases appearing late were timely handled as supplemental cases, postponed cases, “psych suspensions,” and the like. 61 Optional Waiver CalPAP May through Dec. 2011 62 For some of these practices, there were one to two exceptions during the Round in the dozens of cases reviewed by the Special Master and the Plaintiffs. 63 All confrontation rights discussion in this report is based on Granted Comito Objections and Denied Comito Objections reports for each June through Nov. 2011; associated individual records in the electronic file titled “Comito+ other objections”; document with the electronic file name Email concerning May objections.docx; and Special Master team observations and recording reviews 64 There can be a reasonable argument that, if there is no good cause on the State’s side of the balance, there is no possibility that it can outweigh the parolee’s side and no further analysis is necessary. This is different from the problematic examples cited herein, where the analysis stopped after finding the State did have good cause for the non-appearance. 65 Cases discussed in this paragraph are found in Other Objections reports of July and Oct. 2011
49

Case 2:06-cv-02042-LKK-DAD Document 666 Filed 02/29/12 Page 50 of 51
66 Other Objections reports for each of May through Nov. 2011 67 The Board will want to take care to prevent what occurred in one case. Presumably out of a desire to create a full record, a hearing officer included a detailed description of evidence that had been excluded under a confrontation rights objection. While this can be done, it must be labeled as testimony offered but excluded to prevent misunderstanding by the parolee and/or on appeal. 68 There are single, or small numbers of, instances in Plaintiffs’ monitoring reports of other errors or omissions that likely have less effect. Nevertheless, it is correct to note that such mistakes inject inaccuracy into the system. 69 Missing Board Orders for each of May through Nov. 2011 70 Id. A total of four hearings appear on those printouts to be late, but they are not. In one, the parolee was granted a probable cause rehearing after a successful appeal; both the rehearing and the subsequent revocation hearing were held in a reasonable time.Two cases involved parolee time waivers and came back on calendar, or were administratively closed, within the time waived. The final case arguably was late because of a State-initated postponement without good cause and was rescheduled in nine days. 71 Optional Waiver CalPAP May through Dec. 2011 72 Closed Case Summary – Postponement May through Dec. 2011; Admin Appeals Statistics for Apr. and Oct. 2011; individual records in electronic file titled Postponements 73 Closed Case Summary – Extradition May through Dec. 2011 74 See, e.g., spreadsheets titled open case summary 8 4 2011,xls and open case summary 11 16 2011.xls 75 Closed Case Summary May through Dec. 2011;Closed Case Summary – NIC Timeliness for the same time period; individual hearing record in electronic file titled Optional Waivers 76 Closed Case Detail Step PCH May through Dec. 2011 (2 reports) and associated individual records in electronic folder titled Supplemental Charges 77 Closed Case Summary and Closed Case Summary - Postponement each for May through Dec. 2011; associated individual records 78 Closed Case Summary May through Dec. 2011; Closed Case Detail Step REVH and Closed Case Summary – NIC Timeliness for the same dates; individual records associated with the latter two 79 These agreements are captured in Joint Stipulation Regarding Modifications to Division of Juvenile Justice Parole Revocation Policies and Procedures, Sept. 10, 2009. Plaintiffs maintain that the Injunction is violated whenever the 35-day timeframe is not met without a showing of good cause, and that a case should be dismissed if the hearing has not been held within 60 days after the hold. 80 Closed Case Summary, Closed Case Summary – NIC Timeliness, Optional Waiver CalPAP and Closed Case Summary – Postponement, each for May through Dec. 2011, and associated individual records 81 There was another set for which an alternatives discussion is not applicable because the parolee was taking a waiver, or was being returned to county jurisdiction, so disposition decisions were not yet ripe. 82 It was difficult to understand the rationale of one decision finding alternatives inappropriate in that it found that the charges – violating curfew and driving without a license – demonstrated that the parolee was too dangerous for such placement. This was an exception, however, to decisions that were generally well supported. 83 In this report, any reference to accommodations or effective communication needs should be understood to include both. 84 Hearing officers commonly ask about vision, hearing, mobility, education, reading level, and mental health. Not every subject is covered every time, but the variations do not usually appear consequential. These are generally asked with a combination of open-ended and closed-ended phrasing. 85 See description of standard language at http://www.dgs.ca.gov/Default.aspx?alias=www.dgs.ca.gov/ols, form CCC-307, example contracts with American Correctional Solutions, Michael Segovia and John Lewis; correspondence between L. Mehta and S. Wolff dated Nov. 14 and Nov. 23, 2011 86 Spreadsheet with the electronic file name CONTRACTS RESOURCES 7 5 2011.xls 87 Special Master’s observations 88 LH Document Production (itemization) for each of May through Nov. 2011 89 Appeals documents within monthly document productions , and report titled DJJ Appeals Cases, for each of May through Nov. 2011 90 There was one troubling example in which it appears the special parole condition was not read correctly. 91 Monthly document productions May through Nov. 2011
50

Case 2:06-cv-02042-LKK-DAD Document 666 Filed 02/29/12 Page 51 of 51
92 Spreadsheets with the electronic file names DJPO audit tool FINAL 10 13 2011.xls and JPB Review Tool (FINAL – 20111012).xls; informal communication with Defendants 93 Spreadsheet with the electronic file name DJF Review Tool FINAL.xls
51

 
 Case 2:06-cv-02042-LKK-DAD Document 682 Filed 08/06/12 Page 1 of 52

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

L.H, et al., Plaintiffs,
vs. EDMUND G. BROWN, JR., et al.,
Defendants. _____________________________________/

NO.CIV.S-06-2042 LKK/GGH

EIGHTH REPORT OF THE SPECIAL MASTER ON THE STATUS OF
CONDITIONS OF THE STIPULATED ORDER
Background In orders dated September 19, 2007 and January 29, 2008, this Court found that California's juvenile parole revocation system violated juvenile parolees’ due process rights, the Americans with Disabilities Act (ADA), and the Rehabilitation Act. The Court approved a Stipulation and Order for Permanent Injunctive Relief on October 7, 2008 (hereafter “Stipulated Injunction”), which sets forth detailed requirements for attorney representation, revocation system procedures, effective communication and reasonable accommodations, and consideration of alternatives to incarceration. During implementation, stipulated orders have been entered concerning Plaintiffs’
1

Case 2:06-cv-02042-LKK-DAD Document 682 Filed 08/06/12 Page 2 of 52
monitoring, the tracking of parolees with disabilities and effective communication needs, policies and procedures, and the revocation extension penalty matrix.
Chase Riveland was appointed as Special Master on May 22, 2008. Virginia Morrison assumed the role effective June 1, 2010. Patricia Gray served as Deputy Special Master in 2010 and 2011, and Christine Toombs succeeded her in October 2011. The Mastership has submitted seven reports, and offers this eighth report assessing progress toward providing due process and complying with this Court’s orders.
Special Master Activities During this Round, the Special Master’s team conferred with Defendants regarding state budget issues and their effect on DJJ, and the Mastership assisted with negotiations regarding plaintiffs’ monitoring and mechanical restraints. The team observed routine meetings of Defendants’ task force, and training for hearing officers and parole agents. The Mastership interviewed headquarters staff, parole agents, attorneys, and parolees. The team observed hearings and notices at N.A. Chaderjian Youth Correctional Facility; Ventura Youth Correctional Facility; Watts parole unit; Pitchess Detention Center; West County Detention Center; the jails of Sacramento, Alameda, Solano, Fresno, Monterey, Orange, Riverside, Los Angeles, San Diego, and San Bernardino counties; Temple City Jail; and the San Fernando and Riverside courthouses. The team monitored proceedings conducted by all hearing officers, including 27 probable cause hearings or optional waiver reviews in person and 17 recorded or inperson revocation hearings. The team observed the service of notice on 18 parolees conducted by 8 parole agents.
2

Case 2:06-cv-02042-LKK-DAD Document 682 Filed 08/06/12 Page 3 of 52
Scope and Approach This report discusses observations and activities spanning January through May 2012, collectively referred to as “the Round.” Data includes that which became available during the Round, which might include reference to a somewhat earlier time. References to the Special Master’s activities frequently include the actions of a member of her team. For some requirements, the Special Master’s team conducted studies based on revocation packets, hearing documents, and recordings provided in Defendants’ monthly document productions, in combination with those same documents produced for the hearings observed during the team’s site visits. For other requirements, the team studied records selected from the relevant population as identified by electronic reports. In other instances, the team relied on reports generated by Defendants’ revocation database; Plaintiffs’ monitoring summaries; and analyses, reports, or studies conducted by the CalPAP attorney panel administration, and sometimes documents underlying these sources.
The Environment Throughout this Round, policy and budget conditions remained much as they were during the Seventh Round. Juvenile parole continued its integration into the Division of Adult Parole Operations and parole agents participated in a 10-week academy in preparation. At any given time, half of the agents attended academy while the other half covered their caseloads. Some agents moved on to supervising adults; juveniles remained a discrete caseload exclusive to juvenile parole agents. The Board’s revocation processes continued on course.
3

Case 2:06-cv-02042-LKK-DAD Document 682 Filed 08/06/12 Page 4 of 52
Shortly before completion of this report, legislators passed a bill that ends juvenile parole supervision effective January 1, 2013.1 The State may place parole holds through December 31, 2012 and revocations will continue only for those parolees pending revocation or on optional waiver as of that date.
For parolees in custody on the law’s effective date, the State has determined that it will not employ revocation extensions in 2013. When those parolees are released from serving their revocation terms, they will be discharged from parole. Thus, it appears LH processes will end once proceedings are concluded for parolees pending revocation or on optional waiver as of January 1, 2013. The parties are in discussion about further details of this transition.
SUMMARY In the four years of implementation, Defendants have accomplished much. They have eliminated the actions that could appear coercive, committing juveniles to time in prison without advice of counsel. They have swept away the practices that could keep revoked parolees incarcerated indefinitely, rolling over terms repeatedly. They have systematized decisionmaking so that the steps are predictable, proceedings are based on evidence, and staff work to inform and involve the juveniles. All proceedings are provided with exceptional timeliness, and a substantial proportion of juveniles are channeled away from revocation into alternatives to incarceration. Indeed, on many key features of the remedial plan, Defendants have achieved substantial compliance. To the extent that a Stipulated Injunction requirement has been conducted well for a sustained period, the Mastership considers that requirement to be in substantial compliance.2 The Stipulated Injunction contains 44 numbered paragraphs of
4

Case 2:06-cv-02042-LKK-DAD Document 682 Filed 08/06/12 Page 5 of 52
substantive requirements, and a flowchart reflecting process steps; some state a single
action while others reflect complex processes with multiple subparts. As of this report,
the Special Master has recommended substantial compliance findings in the entirety for
30 of these major categories. The practices that can be considered in substantial
compliance are:
 Parole agents and supervisors confer within two business days of holds concerning probable cause to detain and alternatives to incarceration. These staff address some parole violation behavior, designated as lower risk, at the parole unit level. (¶ 25, 27)
 Temporary Detentions – a short-term detention for behavior short of a parole violation, administered with limited process – have ceased. (¶ 39)
 Defendants no longer solicit written admissions forms and waivers without juveniles being advised by counsel. (¶ 17, 31)
 Attorneys represent all parolees from the eighth business day after a hold is placed. This includes providing adequate space, privacy and time for representation; payment for appeals and for additional time for effective communication; access to parolees and files; information about probable cause hearing logistics and clients’ accommodations needs; providing the return to custody assessment and the evidence on which the State will rely; and guidelines and training for panel attorneys. (¶ 15, 16, 19, 20, 21, 22, 23, 24, 30)
 A system is in place for expediting probable cause hearings where the juvenile avers a complete defense. (¶ 26)
 Charges are brought by a reasonable time before hearing and are fully adjudicated at the revocation hearing; hearing officers do not find good cause on some charges and defer ruling on others. (¶ 34)
 Terms are not extended except by a revocation extension process with features similar to the revocation process, and only for limited types of behavior. (¶ 35)
 Alternatives to incarceration are considered at the parole agent-supervisor conference, the probable cause hearing and the revocation hearing. (¶ 27)
 Where a revocation decision results in no more time to be served, the parolees are released within three business days. (¶ 38)
5

Case 2:06-cv-02042-LKK-DAD Document 682 Filed 08/06/12 Page 6 of 52
 An information system is in place for tracking timeframes and reasons for delay (¶ 13, 32, 33)
 Defendants’ staff receive regular training on LH requirements, due process and the ADA and effective communication (¶ 56)
 Certain aspects of providing reasonable accommodations and effective communication assistance: making such arrangements for attorney-client interviews, parolees’ preferred accommodations being honored, and equipment being available. Forms are simplified and available in Spanish and alternate formats. Defendants also maintain a grievance system concerning ADA issues. (¶ 23, 49, 50, 51, 53, 54, 55)
 Parolees are informed of their right to a revocation hearing recording and there is a system to provide them timely. (¶ 41, 42)
There have also been major advances on the remaining requirements. In each
instance, a system has been set in place, and staff work conscientiously to maintain and
improve them. Each of these areas shows both strong practices and some features that do
not fully satisfy requirements. These include:
 Parolees are served with notices of their rights and of their charges, described in a short factual summary (¶ 28)
 Parolees may opt for retaining their own counsel outside the attorney panel provided by the State. (¶ 18)
 Defendants provide a probable cause hearing, at which a parolee can testify and present documents, within 13 business days after the hold. The decisionmaker documents the factual basis for her finding and provides the parolee a written hearing record. (¶ 32, 40)
 Parolees are entitled to a full revocation hearing within 35 days after a hold, or within 60 days after notice if they remain in the community. Parolees may put on witnesses and evidence on the same terms as the State, and admission of hearsay is subject to controlling law. Hearings must take place within 50 miles of the alleged violation and must be physically accessible. (¶ 33, 36, 37, 45)
 There is an appeal process with specified procedures and timelines. (¶ 43)
6

Case 2:06-cv-02042-LKK-DAD Document 682 Filed 08/06/12 Page 7 of 52
 Defendants shall provide timely and reasonable accommodations for effective communication and shall take reasonable steps to identify and track parolees with such needs. (¶ 48, 52)
 Defendants shall not use any blanket policy of requiring mechanical restraints in revocation hearings, and shall develop policies, procedures and training concerning restraints that is consistent with the disabilities law and due process. (¶ 46)
 State contracts require program vendors to comply with anti-discrimination laws; information has not been developed regarding those vendors’ compliance with this contractual provision. (¶ 27)
 Defendants shall develop sufficiently specific policies and procedures to ensure continuous compliance with the Constitution and applicable statutes, and shall revise regulations, rules and procedures to be consistent with the policies. (¶ 11)
All Stipulated Injunction mandates are at least in partial compliance; there are none that are noncompliant.3
This is the most rapid implementation that this Special Master has observed in her 21 years’ experience. It was set in motion by Defendants’ staff and Plaintiffs’ counsel dedicated to improving the fair treatment of juveniles caught up in the criminal justice system. It has been refined and maintained through their efforts and that of large numbers of line staff committed to continuous improvement. A cadre of supervisory and central staff keep a close watch to sustain those systems’ ability to run with effectiveness and integrity. There is much to be proud of in what LH has accomplished.
DISCUSSION
The Stipulated Injunction requires a system of revocation steps in which due process must be delivered according to specified timelines, and reasonable accommodations and effective communication needs must be identified and provided. In
7

Case 2:06-cv-02042-LKK-DAD Document 682 Filed 08/06/12 Page 8 of 52
addition, the Stipulated Injunction calls for structures – procedures, policies, information systems – to sustain these changes. Details of the status of implementing these requirements will be discussed in this section.
Requirements having to do with systems Policies and Regulations (¶ 11) During this Round, Defendants completed the laborious and intricate process to
establish regulations for the LH process.4 This has long been a priority for Plaintiffs and is a substantial accomplishment.
As to policies, the parties negotiated, and Defendants have had in place long-term, detailed, specific policies covering most elements required by the Stipulated Injunction. The agreed policies went forward while a substantial number of disputed items remained and have not been resolved to date. The most significant of these include restraints, antidiscrimination provisions related to alternatives to incarceration, the revocation term matrix, and remedies for parolees where revocation proceeding steps are late.
Policies and procedures governing dual commitments (¶ 45) The Special Master found this specific policy requirement to be in substantial compliance earlier this year, and Defendants have maintained this status.
Tracking system (¶ 13, 32, 33) Defendants were required to implement a system for tracking timeliness, reasons for delay, and other “business process requirements” attendant to the LH revocation
8

Case 2:06-cv-02042-LKK-DAD Document 682 Filed 08/06/12 Page 9 of 52
system. This was initiated in February 2009. Revisions addressed initial functionality limitations, additional data needs, and practice changes arising from policy negotiations. The Special Master found this system to be in substantial compliance earlier this year, and Defendants have maintained this status.
Comprehensive annual training on ADA and effective communication, the Stipulated Injunction's requirements, policies and procedures, due process (¶ 56): Both the Parole division and the Board have annually conducted comprehensive training on LH requirements, due process and ADA and effective communication, most recently in May 2012 and December 2011, respectively. Recent trainings have been welldesigned to improve staff practice in addition to refreshing their knowledge. The Board also offers trainings as part of Board meetings or as unique sessions mid-year. These often concentrate on a specific LH topic such as ADA interactive reviews – a March 2012 subject – hearing record writing, or evidentiary issues.5 Staff at DJJ facilities received LH training in 2009 and 2010, and additional ADA and effective communication training in 2010.6 This is less than the Stipulated Injunction calls for, but Facilities staff have very limited involvement in LH implementation -principally revocation extension and releases within three days of certain orders. The training absence does not seem to have had a negative impact, as both of these responsibilities were found to be in substantial compliance in early 2012. Although this was not perfect compliance, the spirit of the requirement is fulfilled and the Special Master considers it sufficient for substantial compliance.
9

Case 2:06-cv-02042-LKK-DAD Document 682 Filed 08/06/12 Page 10 of 52
Self-monitoring process (¶ 57): The Stipulated Injunction requires Defendants to conduct self-monitoring to
ensure compliance with the injunction and with the policies and procedures implementing it. Long-term, Defendants have had a system that both concentrates oversight in designated individuals at headquarters and diffuses responsibility among field supervisors, an effective combination well-designed to accomplish the task.7
On a daily basis, both Board and Parole staff review lists of cases in process to determine their timeliness, and these staff follow up to identify and address the barriers for cases appearing late. Field supervisors are expected to conduct a similar review. To accomplish the timeliness reviews, Defendants draw on the main revocation database that provides multiple management reports, and they maintain several other electronic lists to organize their oversight.
Designated Board and Parole staff maintain regular communication to coordinate to remove barriers to case handling, and to share information after case completion. Board staff also serve as a check on the completeness of revocation packets compiled by Parole staff, and on the adequacy of evidence before it is transmitted to attorneys.
On a weekly basis, Board headquarters staff do a retrospective review of cases completed to monitor whether policy and procedures were followed, including provision of accommodations and timely and complete documentation. The Parole division regularly reviews revocation ADA documentation, with the ADA Coordinator applying her expertise and forwarding her analysis to headquarters staff responsible for all types of LH oversight.
10

Case 2:06-cv-02042-LKK-DAD Document 682 Filed 08/06/12 Page 11 of 52
An experienced hearing officer reviews every hearing order for consistency with policy and any mistakes of fact or law. If needed, orders are corrected in that process or, if adverse to a parolee, are rescheduled for a new hearing.8 The results are communicated to the hearing officer for education, and the senior hearing officer conducts debriefs with hearing officers periodically and incorporates issues observed in these processes into training sessions.
In recent months, the Parole headquarters oversight team has been visiting parole units for localized training and mentoring on LH compliance issues spotted in these various reviews.
Where a revocation action is late at any step, Parole field supervisors are required to investigate the reason and institute a remedy to prevent recurrence. Designated staff follow up on whether the corrective actions have been implemented. The Board’s headquarters staff perform a similar function. The analysis of all such cases are discussed at a monthly meeting of all involved divisions.
Staff also exercise oversight through annual reconciling of data and reporting to a centralized CDCR statistics office. Their routine self-monitoring is supplemented by occasional reviews of some aspects of the LH Stipulated Injunction by CDCR’s Office of Audits and Court Compliance, with one such review having been published during this Round.
Oversight is exercised daily by extremely conscientious individuals who are dedicated to ensuring excellence in LH implementation. They have set up a number of detailed systems to ensure that revocation actions stay on track, that any barriers are identified early, and that retrospective analyses are conducted. Both key divisions have
11

Case 2:06-cv-02042-LKK-DAD Document 682 Filed 08/06/12 Page 12 of 52
investigated substantive issues as well as procedural ones and have communicated needed learnings to each other, and through field communications and trainings. They engage field staff in sharing responsibility for LH successes and remedies. Different oversight mechanisms are conducted daily, weekly, monthly and annually. Through these means, Defendants are conducting effective self-monitoring, and the Special Master considers this requirement to be in substantial compliance.
Requirements concerning revocation proceedings Parole Agent and Supervising Parole Agent conference within two business days (¶ 27): Nature of the practice Where a parole agent has placed a hold, the Stipulated Injunction requires him or
her to confer with a supervisor, on this timeline, to determine whether there is probable cause to retain the hold and whether alternatives to incarceration are warranted, and to document these decisions.
Parole agents and supervisors conducted case conferences long before LH implementation and, as such, it is well-established routine. This requirement and its particular purposes are reinforced in the policies and procedures that have been in place since 2010.9 Staff regularly report that they use the conference to assess probable cause to detain, and the information system is now structured for them to record this decision. Defendants studied a sample of cases, reviewing the information available at this step.10 The Mastership reviewed the majority of these cases and an additional, similar-sized sample.11 While decisions about probable cause contain an element of subjectivity, the Special Master finds that it was a reasonable exercise of discretion to find probable cause
12

Case 2:06-cv-02042-LKK-DAD Document 682 Filed 08/06/12 Page 13 of 52
to detain in these cases. Additionally, this step resulted in staff dismissing four cases and releasing another 10 to await hearing in the community, a tangible reflection that they had found no probable cause to detain in some instances.12
It is also clear that agents and supervisors consider alternatives to incarceration at this step. Defendants’ review, for example, found that 8% of parolees were given corrective action plans and removed from the revocation process at this step. Three times as many were released or recommended to be returned to parole supervision (“continued on parole”) in the continuing discussions that take place between agent and supervisor in the initial days of a revocation action.13
Timeliness As with all procedural steps completed by Parole staff, this step is exceptionally timely. Defendants’ tracking reveals near-perfect compliance, with only one case completed one day late.14 Open cases were consistent with this.15 This step has been conducted timely for several years under LH and these studies indicate that it is fulfilling its purpose. The Special Master finds that this requirement is in substantial compliance.
Level I and II behaviors can be handled at the parole unit (¶ 25): Defendants were found to be in substantial compliance with this requirement during prior Rounds. All indications are that this has been maintained.
13

Case 2:06-cv-02042-LKK-DAD Document 682 Filed 08/06/12 Page 14 of 52
Notice of charges and rights within three business days (¶ 28): Nature of the practice The Mastership has much more ability to assess notice service, having accompanied eight parole agents while they served 18 parolees during this Round. These took place in 13 jail or courthouse settings. There continued to be a wide range of practices concerning reviewing ADA and effective communication needs. Agents tended to ask broadly, “do you have any disabilities?” or to ask only about a single condition such as medication, sobriety or reading. A few asked good follow-up questions. Many tested a parolee by having him read aloud; about half then checked his understanding. It was common for agents to use various effective adjustments when it was apparent that the parolee had difficulty understanding, and to create an atmosphere encouraging of asking questions. Agents informed parolees about marking requests for help on the form. They had ADA kits with equipment and knew or learned how to arrange for interpretation; none had needed this service for a year or more. All observed agents covered the notice of rights aloud in its entirety; one particularly nice approach was an agent having the parolee read it and paraphrase his understanding. The agents also went over the charges with the parolees. Handling parolee statements about the allegations also varied widely. Some agents expressly warned the parolees not to give admissions and some did not talk about the allegations at all. The most common interactions were a parolee volunteering a statement that the agent accepted, or an agent inviting one but the parolee declining. At the other
14

Case 2:06-cv-02042-LKK-DAD Document 682 Filed 08/06/12 Page 15 of 52
end of the spectrum, an agent actively questioned the parolee directly but without pressure.16
The Stipulated Injunction requires the notice of charges to contain a short factual summary of the behavior for which the parolee is being charged. In the past, many notices accomplished this well, but 20% to 25% did not provide a description sufficient for a parolee to begin to prepare a defense. Similar practice continued during the Round.17
Defendants undertook to improve this, giving it particular emphasis in parole agent training in May 2012. In the short period since then, substantial improvement is apparent. The Mastership reviewed the charge reports for nearly all of the cases closed in June. Of the 31 cases reviewed, all but one – or 97% -- had a factual summary that sufficiently communicates the charges to the parolee.18
Timeliness Of 180 parolees served notice during the Round, only three were served late. In each case, there was a timely attempt; completion was hindered by parolees being in court or refusing service, but it was accomplished within one additional day.19 Open cases were consistent with this.20 Both timeliness, and charge report improvements, reflect an admirable rate of success for parole agents, particularly in the context of parolee movement, parole unit closures and consolidations, and caseload coverage during the academy.
15

Case 2:06-cv-02042-LKK-DAD Document 682 Filed 08/06/12 Page 16 of 52
Not accepting written admissions to a violation of parole made prior to the juvenile parolee meeting with counsel (¶ 17):
In the period giving rise to LH, Defendants routinely presented parolees with written admission forms, which parolees commonly signed in the absence of counsel. The Special Master has not encountered these forms in hundreds of revocation packets reviewed since 2009, and none has been identified by monitors. Plaintiffs aver that this prohibition extends to agents taking oral statements during notice service and investigation, and they strongly object to this practice.
The taking of oral statements is intended to serve multiple purposes. If a statement is offered, it allows the agent to form recommendations and decisions based on the parolee’s views as well as the accusers’. Agents often feel that parolees taking responsibility strengthens the agent-parolee relationship and furthers parolees’ ability to behave as expected in the community. On the other hand, there are inherent problems in taking statements without counsel, particularly when an agent serves in joint roles of trusted advisor, investigator and prosecutor of the state’s charges.
On its face, the Stipulated Injunction specifically refers to written admissions. It is uncontroverted that this has not taken place in years. Understanding Plaintiffs’ concern about the related practice, it appears that the Stipulated Injunction requirement is being met and Defendants are in substantial compliance with it.
Violation report within six business days (Exh. A):21 Nature of the practice Violation reports have undergone major changes since the reports generated in the early days of LH. They more clearly lay out the charges and recommended outcomes and
16

Case 2:06-cv-02042-LKK-DAD Document 682 Filed 08/06/12 Page 17 of 52
the evidence supporting them. The vast majority communicate to parolees and attorneys what they must prepare to defend against.
The parties and the Special Master have not systematically examined these reports for their adequacy. However, they are reviewed by a parole supervisor and twice by hearing officers, a control against proceeding on charges where probable cause is lacking in the report. Hearing officers occasionally do dismiss charges on this basis. With the quality of reports that the Special Master has observed, and these checks and balances in place, the effect of any deficiencies in violation reports is very unlikely to rise to the level of affecting due process.
Timeliness There is no direct measurement of the timeliness of violation reports.22 The subsequent step – supervisor review of this work product – is 100% timely. It thus appears that violation reports are either completed timely, or within one additional day, and do not adversely affect the overall timeliness of revocation proceedings. The Special Master is confident that parole agents are doing well in meeting this timeliness requirement. Given the foregoing, the Special Master considers this step to be in substantial compliance.
Supervising Parole Agent review of violation report within seven business days (Exh. A):23 The Stipulated Injunction does not specify the purposes to be served during this review, requiring only “Violation Report Reviewed by Supervising Parole Agent.”24 Signatures on the violation reports and data entry indicate that staff achieved 100%
17

Case 2:06-cv-02042-LKK-DAD Document 682 Filed 08/06/12 Page 18 of 52
timeliness for this requirement, another credit to their dedication in these turbulent times. Open cases were consistent with this.25
Absent any other measures to apply, the Special Master will consider this
requirement to be in substantial compliance.
Requirements concerning attorney representation Timely appointment of counsel (¶ 16)26
At the time of attorney appointment, provision of a copy of all the evidence on which the State intends to rely or which may be exculpatory; evidence not provided with at least two days’ notice shall be excluded unless the state shows good cause (¶ 16, 19) Attorney will be informed of Return to Custody Assessment by the 10th business day after the hold (¶ 30)
Adequate time for representation; reasonable access to clients and files; confidential phone calls and space in which to meet; observing staff cannot participate in proceedings (¶ 20, 23)
Provision of counsel during revocation and revocation extension proceedings (¶ 15, 35)27
At the time of attorney appointment, provision of date, time, and location of the hearing (¶ 16)
Defendants shall take all reasonable steps to allow counsel to meet with clients at least 24 hours prior to the probable cause hearing (¶ 16)
State-appointed counsel for juvenile parolees shall be appropriately compensated for hearings and appeals (¶ 24)
Defendants shall develop standards, guidelines, and training for effective assistance of state-appointed counsel (¶ 21)
Not accepting waivers of hearing rights or the right to counsel made prior to the juvenile parolee meeting with counsel; waivers of hearings and requests for continuance must be made in writing in the presence of counsel (¶ 17, 31)
Parolee waivers of timely hearings and continuances (¶ 31)
18

Case 2:06-cv-02042-LKK-DAD Document 682 Filed 08/06/12 Page 19 of 52
Each of the 11 requirements above has been found in substantial compliance in previous Rounds. All indications are that this has been maintained.
At the time of attorney appointment, provision of relevant educational, mental health and disability identification and source documents (¶ 16): Defendants use a summary form to provide educational, mental health, and disability information to attorneys and those making use of the field files. At the time this form was negotiated, Plaintiffs reserved some objections concerning the sufficiency of the contents and whether the requirement to provide source documents was satisfied. The form has been consistently in use since 2009.28 CalPAP has not reported any failure to provide the disability summaries, any problems arising from their contents, nor any needed information that was missing.29 Plaintiffs have not raised their objections for further dispute resolution. Defendants now request a finding of substantial compliance.30 The Special Master agrees that this is reasonable and recommends such a finding.
Right to be represented by counsel of choice; process for timely notifying the counsel of record of the imposition of a parole hold (¶ 18): Defendants have had in place long-term a system to notify counsel of record. During the Mastership’s last review of this requirement, the system operated consistently but with significant deficiencies in timeliness. Reportedly, no attorneys outside of CalPAP represented youth in the revocation proceedings during the Round.31
19

Case 2:06-cv-02042-LKK-DAD Document 682 Filed 08/06/12 Page 20 of 52
Return to custody assessment (“RTCA”) within nine business days (¶ 29): Nature of the practice Defendants continued the practice, established for several years, of reviewing revocation packets for probable cause on the charges, consideration of alternatives to incarceration, and setting a preliminary assessment of revocation time that a parolee can accept, reject or attempt to negotiate at the probable cause hearing. The Special Master does not have definitive means to assess the probable cause review at this step. The Mastership has employed several proxy measures in previous Rounds, which demonstrated reasonable practice. During this Round, after reviewing more than half of the cases reaching the probable cause hearing, the Special Master did not encounter any that reflected clear error in advancing beyond RTCA. Hearing officers released eight parolees at this step during the Round, a rate consistent with prior Rounds.32 This is one indication that they are considering alternatives during their review. In previous Rounds, Defendants have demonstrated substantial compliance as to setting and timely communicating the RTCA to attorneys. Timeliness Defendants’ tracking demonstrates that all RTCAs were completed timely, save one, which was one day late.33 Open cases were consistent with this.34 This is the first of several steps for which the Board is impressively timely. The Special Master considers this requirement to be in substantial compliance.
20

Case 2:06-cv-02042-LKK-DAD Document 682 Filed 08/06/12 Page 21 of 52
HEARING PRACTICE Mechanical restraints at hearings (¶ 46):
The Stipulated Injunction requires Defendants to develop policies, procedures, and training concerning restraints that are consistent with the ADA, the Rehabilitation Act, due process standards, and Title 15 California Code of Regulations section 4034.4. It also mandates that “Defendants shall not use any blanket policy of requiring mechanical restraints for all juvenile parolees in parole revocation hearings.” The parties negotiated these policies, which include a determination of the need for restraints based on one or more specified indicia of recent likelihood of violence or flight risk.35 Defendants have held related training.
Previous reports of the Special Master have documented that Defendants carry out this policy in DJJ facilities, and the parties have a dispute about Defendants deferring to jail policies that call for universal restraints. During the Round, Plaintiffs initiated dispute resolution. The parties agreed to defer it while Defendants negotiated with jails that have both universal restraints policies and the highest volume of juvenile revocation proceedings in jails. Efforts to obtain those jails’ policies, and to negotiate practice, are underway.
During this Round, the Mastership examined restraints practices in a large sample of proceedings. In it, parolees were restrained or not restrained in about equal numbers. Where DJJ staff used restraints according to their own discretion, the choice was consistent with policy, in the Special Master’s opinion.36 More than 80% of the restraints were applied pursuant to a county jail’s requirements.37
21

Case 2:06-cv-02042-LKK-DAD Document 682 Filed 08/06/12 Page 22 of 52
Hearing space: While not a specific term of the Stipulated Injunction, concerns were raised in the Seventh Round about using any hearing space in which a parolee is separated from other hearing participants. Counsel for the State confirmed, during the instant Round, that all DJJ hearings are held in barrier-free spaces.38
Probable cause hearing requirements Expedited probable cause hearings (¶ 26): The Stipulated Injunction specifies requirements for providing an expedited probable cause hearing process for parolees who aver that they have a complete defense. These requirements are reflected in policy for Board staff, a separate policy concerning attorney standards that is shared with all attorneys, and the attorney panel contract.39 Staff describe the procedures by which they would handle any such requests.40 There have been no requests for expedited probable cause hearings to date,41 and Plaintiffs object to any findings when the system is untested. While this is an understandable position in the initial stages of implementation, there has now been ample opportunity for these defenses to have been raised. Defendants have set up an adequate system, and the detailed procedures give every indication that staff are able to carry it out. The Special Master has observed no barriers to use of this system that might have been created by Defendants. Under these conditions, Defendants have fulfilled their obligations despite others not making use of the available system. The Special Master recommends a finding of substantial compliance on the requirement.
22

Case 2:06-cv-02042-LKK-DAD Document 682 Filed 08/06/12 Page 23 of 52
Probable cause hearings within 13 business days after the hold is placed, including written bases for findings (¶ 32, 40): Nature of Hearings Hearing officers continued to refine and improve their probable cause practice during the Round, a reflection of their conscientiousness even as revocations wind down. This improvement, in combination with greater information generated by a deeper examination than previously undertaken, gives the Special Master confidence that probable cause hearings are running well and serving their purpose. As detailed in previous reports of the Special Master, hearing officers have developed strong practice in conducting interactive interviews to determine ADA accommodations and effective communication needs, encouraging questions and requests for help, and creating the climate of partnership in ensuring that parolees understand and participate in their hearings. Hearing officers orient parolees to the standard of proof and what to expect, and advise them of their rights. Occasionally, these objectives can be in tension; Plaintiffs point to two examples where they felt language meant to make legal concepts accessible was insufficiently precise. On the whole, however, these practices uphold due process and effective communication. The Stipulated Injunction highlights parolees’ right to present evidence in their defense, and this has been well preserved throughout implementation. It has been more difficult, in the past, to determine whether hearing officers were assessing each charge separately, and taking parolees’ evidence and legal argument into account, when making probable cause determinations. New information makes this determination more possible, and there is good, solid practice in this regard.
23

Case 2:06-cv-02042-LKK-DAD Document 682 Filed 08/06/12 Page 24 of 52
The Mastership reviewed a large majority of the probable cause hearing orders for their treatment of probable cause arguments.42 Challenges were raised in nearly one-half of the sample reviewed and the information appeared to be incorporated well in the record and the hearing officer’s reasoning. Plaintiffs’ monitoring raises a reasonable question about the absence of argument recorded in a handful of cases likely to have had one; on examination, CalPAP records reveal that the hearing records were correct in all but one case.43 The Special Master also noted that the probable cause challenge was not recorded in one-quarter of the cases where CalPAP wrote that one did occur. However, the key is whether the challenge was taken into account before reaching a final decision. Since this was consistently done well in a much larger number of cases reviewed, the Mastership has confidence that hearing officers’ reasoning is consistent and sound whether documented or undocumented.44
This all, of course, is in service of ensuring that parolees are not incarcerated when there is no probable cause at all, and that charges are not on their permanent record without probable cause. It has been true long-term that the system does not detain parolees with no probable cause on any charge, and that remained true in the Mastership’s reviews this Round.
The cases where probable cause is present on some charges, and other charges appear to be swept in without sufficient examination, have steadily reduced in recent Rounds. In this Round, the Special Master had a significant question about probable cause on some charges in only five cases.45 Moreover, the effect in those cases was limited as most were dismissed at a subsequent step, given an alternative sanction, or the parolee admitted to the questionable charges. Hearing officers also commonly dismiss
24

Case 2:06-cv-02042-LKK-DAD Document 682 Filed 08/06/12 Page 25 of 52
some of the charges at probable cause hearing, another indication that they are considering whether the evidence supports each charge separately.
The written record can also illustrate that this important analysis has occurred. The Stipulated Injunction separately cites the due process protections of recording a written, factual basis for probable cause findings, and providing that writing to the parolee. Previous reports of the Special Master have described hearing officers becoming more consistent, throughout 2011 and 2012, in offering the factual basis for findings. In this Round, the Mastership reviewed more than half of the probable cause hearing records and all of them cited the facts relied upon for each charge. This is an important gain by conscientious hearing officers. The Special Master recommends a substantial compliance finding on this aspect of probable cause hearings, captured in ¶ 40 of the Stipulated Injunction.
Plaintiffs’ reviews generally comment on errors or omissions in hearing records; during this Round, there were one to two examples each of omitting a disability, an accommodation, or use of restraints; two typing errors; and a programming issue that permits correct description in text but contradictory information to remain in checkboxes. This low occurrence supports the Special Master’s observations of great improvement in the accuracy and completeness of hearing records. As the only record of what occurred in probable cause hearings, fairness calls for a complete and accurate record. The Special Master encourages hearing officers to maintain these gains and to be mindful of improving missing elements such as challenges to probable cause.
25

Case 2:06-cv-02042-LKK-DAD Document 682 Filed 08/06/12 Page 26 of 52
Parolees also continued consistently to receive a written hearing record at the conclusion of the hearing. All but five were provided at the hearing; because of technological impediments, those five were provided within six days or less.46
This more clear hearing record also makes apparent the improvements in hearing officers basing decisions on the evidence alone. While no person is completely neutral, the current hearing officers clearly work to control for the assumptions and uncharged “facts” that would sometimes creep into hearings of years past. The potential effects of outside influences have also commendably been reduced.47
Finally, deciding and recording probable cause to continue to detain has also greatly improved. Among the more than half of hearing records studied, only three did not mention this analysis.
Timeliness Defendants’ and CalPAP records show only one probable cause hearing held late and it was completed within one to two additional days.48 For Optional Waiver Reviews, an action similar to probable cause hearings, printouts show that all were timely.49 Open cases were consistent with this.50 All postponements at these steps were rescheduled within the time negotiated by the LH attorneys, or were pending within those timeframes.51 This continues to be exceptional work by Defendants’ staff.
Definition of presumed prejudice (¶ 32): Defendants assert that the parties negotiated one definition to be used for both types of hearings, while Plaintiffs indicate that a definition applying to probable cause hearings remains to be developed. This remained unchanged during the Round.
26

Case 2:06-cv-02042-LKK-DAD Document 682 Filed 08/06/12 Page 27 of 52
Definition of good cause for delay, remedy for timeframe violation (¶ 33): The parties have agreed on a definition of good cause for delay and day-for-day time credit remedies for probable cause hearings held after 35 days, revocation hearings, and revocation extension hearings. The Special Master verified that no probable cause hearing exceeded 35 days without a parolee-initiated waiver and no revocation or revocation extension hearing exceeded the timeframe without good cause under the negotiated definition.52 Prejudice is presumed, and the case will be dismissed, if, absent good cause, a revocation hearing has not been held by the 90th day after the hold.53 Nearly all revocation hearings occurred in fewer than 50 days; the two exceptions exceeded 90 days pursuant to parolee time waivers.54 This continues the good practice of several Rounds. Defendants fulfilled their obligation to generate these definitions, with input from Plaintiffs’ counsel, and have put them into practice. The Special Master considers this requirement to be in substantial compliance.
Requirements related to revocation hearings Final revocation hearing on or before 35 calendar days after the parole hold is placed (¶ 33, 37): Nature of proceedings Revocation hearings run much as probable cause hearings do, with the amendments of a higher standard of proof, witnesses, related evidentiary protections, and a hearing officer decision rather than a negotiated one. Hearing officers continued to provide thorough ADA interactive reviews, measures to support parolee understanding, and a review of parolee rights.55 A few procedural
27

Case 2:06-cv-02042-LKK-DAD Document 682 Filed 08/06/12 Page 28 of 52
protections were not offered as consistently as in the past, such as taking pleas on the charges and, rarely, swearing in a witness. Plaintiffs object to the occasions in which the same hearing officer presides over the probable cause and revocation hearings; Defendants have offered case law supporting the practice in criminal trials.56
There was problematic handling of legal issues in a small number of cases.57 Hearings were postponed, well into testimony, to allow absent State witnesses another chance to appear. Some rulings on objections did not respond to the substance of the objection. Occasionally, objections were not recorded. Fearful witness designation expressly omitted hearing officer inquiry and decision about the basis. These practices carry the risk of evidence being used unfairly against a parolee, delaying a final hearing, or affecting his or her success if there is an appeal.
Objections concerning production of evidence were handled well. Handling of hearsay objections was also much improved, with hearing officers correctly applying the case law factors in two-thirds of the cases.58 This is an important achievement, as this is a difficult responsibility with little opportunity to master it. Moreover, in those cases that were not correctly handled, the impact was limited. In some, the evidence did not come in. Where it was admitted, there were also good cause findings on charges unrelated to the hearsay, so no parolees were returned to custody solely because of evidence that should not have been admitted under this balancing test.
Hearing officers did consider legal arguments; they both recorded these in the hearing records and, in two-thirds of the revocation hearings, some or all of the charges were dismissed. Alternatives to incarceration were discussed, included in the written order, or both, with only one exception. Indeed, alternatives were granted in one-quarter of the cases, in addition to another one-quarter that were dismissed.
28

Case 2:06-cv-02042-LKK-DAD Document 682 Filed 08/06/12 Page 29 of 52
As with probable cause hearings, orders were excellent in giving the factual basis for the findings and captured the legal arguments and most objections. Parolees were given copies at the conclusion of all hearings.59
Timeliness CalPAP records show that all revocation hearings were held timely;60 Defendants’ tracking shows only a single exception to this and it was completed within three additional days.61 Open cases were consistent with this.62 This step, too, is exceptionally timely.
Not in custody hearings within 60 days after service and with all due process and ADA protections (¶ 45) Parole revocation hearings to be held within a 50-mile radius of the alleged violation (¶ 36) Parolees may put on evidence on the same terms as the state (¶ 33)
Each of the three requirements above has been found in substantial compliance in previous Rounds. All indications are that this has been maintained.
Requirements related to disposition Charges may not be split and known charges must be brought at a reasonable time prior to hearing (¶ 34): Defendants have had good practice in bringing charges in sufficient time ahead of hearing to prepare a defense and to meet LH process timeframes. During this Round, Defendants added charges after notice in only one case, and the additions were available as of the Return to Custody Assessment.63 In the previous Round, a Special Master’s study found that, in the rare instance that charges were added after notice, they, too, were
29

Case 2:06-cv-02042-LKK-DAD Document 682 Filed 08/06/12 Page 30 of 52
always included by the time the attorney received the revocation packet. Defendants brought supplemental charges in four cases during the Round, two of
which were handled quickly.64 In two cases, the charge did not appear to have been pursued timely; in one of those cases, the hearing officer granted that objection and the charge was dismissed on other grounds. In the previous Round, all but one supplemental case were timely.65
Defendants also consistently adjudicate all charges in a single hearing. Because of database programming, if a hearing officer were to split charges, the hearing would be recorded as postponed. A review of the content of all orders for postponed cases in the Round revealed no instances of finding cause on some charges while preserving other charges for another date.66 A review of CalPAP’s database for this Round was consistent with this, as well.67 No such cases have been cited in monitoring or have otherwise come to the Special Master’s attention throughout implementation.
Thus, Defendants routinely bring charges in a reasonable time prior to hearing, the extremely rare occurrence of late additional charges notwithstanding. Additionally, there is every indication that they provide a final hearing for all charges and do not split charges. The Special Master finds that Defendants are in substantial compliance with these requirements.
Elimination of “temporary detentions” (¶ 39): Temporary detentions were employed for parolee behavior that did not rise to the
level of a parole violation. They were used preemptively with the hope that a short incarceration would interrupt escalation of that parolee’s behavior, or for medical or mental health treatment. They were designed to be administered informally and for up to
30

Case 2:06-cv-02042-LKK-DAD Document 682 Filed 08/06/12 Page 31 of 52
30 days.68 In practice, agents’ reports, Board reviews, and releases could all be extended well beyond the design.
The Stipulated Injunction requires Defendants to immediately rescind Title 15, California Code of Regulations § 4985, and this was accomplished in 2008.69 Defendants report that they have reinforced repeatedly with staff that this practice is no longer permitted.
Throughout implementation, no clear cases have come to the Special Master’s attention, although Plaintiffs have raised a few examples, through early 2011, where they were concerned that violation report language focusing on treatment and training, and/or stays in custody that were ultimately brief, were de facto temporary detentions.
The Mastership reviewed a large sample of revocation actions in this Round in which the parolee was incarcerated and released within 30 days.70 None had any of the hallmarks of that alternate system: each involved parole violation behavior, counsel was universally provided, all revocation proceeding procedures were followed, and charges were dismissed or a set term was established. Moreover, the LH revocation process has become so routine for Facilities, Board and Parole staff, any alternate means of taking parolees into custody, or misusing the LH system to take them into custody but not continue in the revocation process, would surely be highly noticeable in the daily headquarters review of all pending cases, or by staff in daily operations.
The Special Master considers this requirement to be in substantial compliance.
31

Case 2:06-cv-02042-LKK-DAD Document 682 Filed 08/06/12 Page 32 of 52
Alternatives to incarceration (¶27): The Stipulated Injunction requires Defendants to “consider whether alternatives to incarceration are warranted [at the initial case conference]. The advisability of alternatives to incarceration shall be considered again at the Probable Cause Hearing and at the Revocation Hearing.” In the initial days following the discovery of behavior that might constitute a parole violation, Defendants both conduct an agent-supervisor case conference (referred to as the Probable Cause Determination step) and make a final decision about whether to refer a case to the Board. Defendants recently studied nearly all cases for the Round and determined that one-quarter of such events are handled without initiating the revocation process.71 A similar number had a hold placed and the parole unit subsequently dismissed the case and/or handled the behavior through a corrective action plan, or recommended such a result in cases where the law mandates that the Board make the decision. In total, then, the parole unit used or recommended alternatives to incarceration in 36% to 52% of cases that might otherwise have proceeded to revocation, depending on the definition one applies. In the Mastership’s large study of probable cause hearings, more than 90% considered alternatives aloud in the hearing, in the written order, or both. Among these, 11% of the reviewed cases resulted in the granting of an alternative to incarceration.72 There was similar practice in revocation hearings, with nearly all documenting consideration and an alternative being ordered in 24% of cases.73 In total, it appears that more than half of the juveniles who might have been revoked during the Round were diverted to alternatives.74 High rates of consideration and
32

Case 2:06-cv-02042-LKK-DAD Document 682 Filed 08/06/12 Page 33 of 52
use of alternatives to incarceration have been apparent since at least 2010. Defendants have met the purpose of this requirement, and one of the parties’ key goals, and the Special Master considers it to be in substantial compliance.
Limiting return to custody time to one year; use of a matrix of ranges of revocation terms (¶ 35):
Defendants have adhered to a revocation matrix since 2009. Plaintiffs have asserted long-term that the penalties are too harsh, particularly in light of much shorter revocation terms for the same behavior for adult parolees, and have very recently provided case law regarding Equal Protection arguments.
To the Special Master’s knowledge, no revocation terms have exceeded one year, with the exception of a handful of supplemental charges in some previous Rounds.
Revocation may be extended only after a revocation extension hearing (no timeadds or DDMS time extensions) (¶ 35) Revocation Extensions (¶ 35, 40) Release within three business days if time has been served (¶ 38) Each of the three requirements above has been found in substantial compliance in previous Rounds. All indications are that this has been maintained.
Development of an appeal process (¶ 43): Defendants operate an appeal process with the components required in the Stipulated Injunction. Defendants document 10 appeals during the Round.75 Among them, two appeals were granted, resulting in the parolees’ release, and eight were denied.
33

Case 2:06-cv-02042-LKK-DAD Document 682 Filed 08/06/12 Page 34 of 52
These were generally handled well, in the Special Master’s opinion, although appeals did not respond to the legal arguments made in two of the appeals. All processing was handled timely.
There is an additional mechanism termed decision review, in which Defendants review each Board Order for mistakes of fact, law, or policy. Where the reviewer determines that a change is needed and it is potentially adverse to the parolee, a rehearing is ordered.
Records show three decision reviews resulting in a changed outcome during the Round.76 All three accrued to the benefit of the parolees. Due to the lack of an element and/or probable cause, charges were dismissed or were amended and the penalty reduced. These cases were handled timely under Defendants’ policy.
Informing parolees of the right to a copy of the hearing audio recording, and providing such recordings (¶ 41, 42) These requirements were found in substantial compliance in prior Rounds. All indications are that this has been maintained.
Requirements related to ADA and effective communication ADA and effective communications accommodation The Stipulated Injunction discusses accommodations77 in five discrete components:
- Defendants shall make reasonable accommodations and effective communication assistance available in revocation proceedings, and a number of examples are specified (¶ 48)
- Defendants shall make this assistance available in preparing for hearings (¶ 23, 49)
34

Case 2:06-cv-02042-LKK-DAD Document 682 Filed 08/06/12 Page 35 of 52
- A parolee’s requested accommodation will be given primary consideration (¶ 50)
- Defendants shall ensure that proceedings are not delayed to obtain this assistance (¶ 51)
- Defendants shall ensure that equipment is available for this assistance (¶ 53) - Defendants shall provide forms for parolees in simplified English, Spanish,
and alternative formats (¶ 55)
Defendants shall make reasonable accommodations and effective communication assistance available in revocation proceedings (¶ 48)
The picture is incomplete as to providing needed accommodations. Parole agents are generally knowledgeable about the parolees they supervise, including their health conditions and cognitive limits. There have been increasing exceptions to this, though, with caseloads turning over during staff downsizing and agents covering for each other during the academy. The vast majority of agents and hearing officers are invested in ensuring good communication with parolees, and many good practices to attempt to increase understanding are evident. These staff and CalPAP attorneys have participated in multiple trainings concerning the ADA and the importance of accommodations, and it is unclear how much of this training has included methods of spotting undisclosed disabilities and effective adjustments to make. The Board has made inroads on point in recent trainings.
This point of undisclosed disabilities, and particularly undisclosed needs, is key. It is common knowledge that the DJJ population, as with many youth involved with the criminal justice system, has substantial rates of parolees with low education, a variety of cognitive limitations such as learning disability and developmental disability, and mental
35

Case 2:06-cv-02042-LKK-DAD Document 682 Filed 08/06/12 Page 36 of 52
illness. For example, the Mastership conducted an informal survey of parole agents during trainings in Spring 2012, which indicated that virtually all of them supervise parolees with developmental or learning disabilities and/or mental health issues. In contrast, for the last year statewide, agents could only recall supervising two parolees with a hearing impairment, none with vision impairments requiring more than glasses, none with limited mobility, and none requiring language or sign language interpretation.78
On the one hand, this indicates it is likely that few accommodations requiring equipment or external people – wheelchairs, SARA readers, amplification, interpreters – are needed. Defendants have in place good systems for providing those types of accommodations, including certain equipment being widely available to parole agents and present at hearings, staff made aware of designated persons who are responsible to arrange for other needed equipment or personnel, and computerized systems for tracking this information.
At the same time, there is the much larger group of parolees whose limitations are mentally based, a much more complex situation. This is a group much more likely to hide disabilities and feign understanding out of fear and shame; in the absence of understanding, there is a risk of a sense of coercion and forfeiting rights. While most staff attempt to speak more slowly and encourage questions, and some use rephrasing or parolee paraphrasing, it is unknown whether this is sufficient for some people. Paper and electronic revocation-related files do not usually contain the type of accommodation needed. Indeed, Defendants’ ADA tracking systerm continues to have some constraints in general. For those conditions, observed among the DJJ population, where communication
36

Case 2:06-cv-02042-LKK-DAD Document 682 Filed 08/06/12 Page 37 of 52
is best effectuated through other means,79 this information would be carried forward if the parolee voices it or the agent knows, but the likelihood of that happening, under these conditions, is uncertain.
On the other hand, some conditions, such as depression, may need no accommodation on many days. Some limitations may be in remission or, in the cases of reading comprehension and original languages, may have been addressed through education and no longer require assistance. Additionally, these parolees have attorneys looking to protect against an erosion of their rights. At the conclusion of hearings, hearing officers usually ask attorneys whether the parolees’ ADA rights have been met, and attorneys do make that stipulation.80
As in prior Rounds, Plaintiffs offer examples of parolees who may not have received needed accommodations, a total of 11 during the Round.81 Two young men originally spoke another language and documentation does not indicate whether the need for an interpreter was assessed. In most instances, accommodations were documented as provided in some revocation proceedings but were not noted, or staff marked that the parolees understood without assistance, at another process step. Plaintiffs’ counsel question whether attorneys are sufficient accommodation for parolees with cognitive impairments, or whether the Facilities staff category of “staff assistant” is needed, as raised in one case during this Round. These examples carry the same uncertainties as described above – was an accommodation needed? If so, was it not provided or provided but not documented clearly? All comments on ADA interactive reviews in hearings were positive in Plaintiffs’ monitoring throughout the Round.
At this stage, it can be said that Defendants have brought considerable attention to
37

Case 2:06-cv-02042-LKK-DAD Document 682 Filed 08/06/12 Page 38 of 52
setting up systems and staff training to provide accommodations, and these appear effective on many occasions. With the uncertainties that remain, the substantial proportion of the population possibly affected, and the nature of the issue being one that would not necessarily automatically surface, the Mastership cannot reach any conclusions about whether there is substantial compliance in providing accommodations consistent with the ADA and related law.
Defendants shall make available reasonable accommodations for attorney-client interviews and accommodations shall include additional hours of representation (¶ 23, 4982): The CalPAP contract does provide a payment rate that contemplates three more hours of representation than the hours of service covered by the Valdivia payment rate.83 Defendants have designated staff for attorneys to contact when needing assistance in arranging reasonable accommodations for attorney-client meetings. Internal monitoring determined that one such staff member had the usual equipment, and reported ease in securing sign language interpreters. Additionally, some attorneys confirmed that it is their experience that accommodations have been available.84 As noted above, the Mastership’s informal survey of parole agents indicated that extremely few parolees need accommodations that require arrangements. No complaints concerning accommodations during attorney-client interviews have been identified in monitoring, or have otherwise come to the Special Master’s attention, throughout implementation. It thus appears that few accommodations require assistance from Defendants to arrange, but there is a system in place to do so. CalPAP maintains regular contact with the Special Master and with Defendants, and includes topics needing resolution; the
38

Case 2:06-cv-02042-LKK-DAD Document 682 Filed 08/06/12 Page 39 of 52
nature of this concern makes it very likely that attorneys would have surfaced any difficulties they were encountering, and they have not done so. For these reasons, it appears that Defendants are in substantial compliance with this requirement.
A parolee’s requested accommodation will be given primary consideration and granted unless unreasonable (¶ 50) Parolees have an opportunity to request accommodations while interacting with their parole agents during notice service, by using a form request, and during hearings. A designated staff person receives accommodations requests from parolees, attorneys and staff, and she tracks the requests, communicates them electronically to hearing staff, and arranges for any accommodations that would not already be present in the hearing room. Defendants indicate that they have never been unable to provide a requested accommodation.85 Should Defendants refuse a parolee request, there are four likely places that information would be captured. Defendants’ tracking system includes a data point for accommodations denied; that report is provided monthly and has reflected no denials for at least two years.86 Notice service documents and hearing records could record such a request and denial; none have come to the Special Master’s attention. Parolees have not reported any such events to Plaintiffs’ counsel, Defendants or the Special Master during monitoring tours. Neither has this been the subject of any ADA grievances. Because this requirement is conditioned on parolees already having verbalized their needs, it is reasonable to expect that parolees would also call attention if those needs were not met. Given the history described above, there is no reason to believe that parolees’
39

Case 2:06-cv-02042-LKK-DAD Document 682 Filed 08/06/12 Page 40 of 52
preferences for accommodations are not being honored. The Special Master finds this requirement to be in substantial compliance.
Defendants shall ensure that proceedings are not delayed to obtain reasonable accommodations or effective communication assistance (¶ 51) Defendants were found to be in substantial compliance with this requirement during the Seventh Round. All indications are that this status continues.
Defendants shall ensure that effective communication equipment is available at revocation proceedings (¶ 53): As discussed above and in previous reports of the Special Master, parole agents have been issued “kits” of magnifiers and assistive listening devices and routinely carry them to sites for service of notice.87 The Special Master and party monitors have observed this same equipment consistently present at hearings for years. No instance of their absence, or that of any other needed equipment, has been brought to the Special Master’s attention through observation; monitors’ reports; Defendants’ tracking reports for accommodations denied, “planned vs. provided,” or “requested vs. provided”; CalPAP discussions; task force meetings; or ADA grievances. The offer of magnifiers, for example, is such a routine feature of hearings that a failure would have surfaced through one of these channels. The Special Master finds that this requirement is in substantial compliance.
Forms in alternative formats (¶ 55) Defendants were found to be in substantial compliance with this requirement during previous Rounds. All indications are that this status continues.
40

Case 2:06-cv-02042-LKK-DAD Document 682 Filed 08/06/12 Page 41 of 52
ADA and effective communications needs identification and tracking (¶ 52): As detailed in previous reports of the Special Master, Defendants have put in place a number of mechanisms to identify and track disabilities and conditions that may give rise to accommodations needs. There are many paper and electronic sources storing different portions of parolees’ health and education history; as a product of LH implementation, parole agents summarize them on a form for the field files that is carried forward in any revocation files. When revocation is initiated, agents review this summary and original sources, and are to include that history on the revocation-related disability form (“3.260”), which they review with the parolee, and they are to add any accommodations requests the parolee makes at that time. The contents of the 3.260 are to be recorded in a database, which is also accessed by the Board’s ADA Coordinator and hearing officers in anticipation of, and during, hearings. The paper revocation packet contains the field file summary form, the paper 3.260, and some source documents, and it is provided to the attorney and the hearing officer. The ADA Coordinator maintains tracking of accommodations, described in broad categories, that are planned, denied or provided. This system has been in use since 2009. It centralizes, and makes much more easy to locate, disability and accommodations information. Hearing officers and parole agents regularly refer to that file information when speaking with the parolees during revocation proceeding steps.88 During Plaintiffs’ close review each Round, there are a number of cases where the tracking is not as complete as the system was designed to be.89 In this Round, for example, Plaintiffs encountered 16 parolees for whom one to three known conditions
41

Case 2:06-cv-02042-LKK-DAD Document 682 Filed 08/06/12 Page 42 of 52
were not recorded on the 3.260. Similarly, in five instances, the paper 3.260 recorded information that was not then made available in the electronic database. In these cases, the tracking did not operate as intended. Some of these could have a significant impact on the hearing if unknown, such as a learning disability; some would not, such as glasses for distance.
What effect this actually did have is an open question. Plaintiffs were able to make this determination based on other file documents – the same information regularly reviewed by staff and attorneys. Thus, it is quite likely that conditions were identified during those particular revocation proceedings, even if the tracking was managed incompletely. Plaintiffs make a valid point, however, when they write that if tracking information is missing, or inconsistencies are not explained, “the reliability of these versions is called into question, and it becomes difficult to determine whether the parolee did receive the necessary accommodations in these proceedings.”
Prohibition of discrimination in parole placements and referrals to services (¶ 27): It is difficult to prove discrimination in placements and services, and it is difficult to prove its absence. Defendants offer that there have never been complaints of discrimination. Plaintiffs note that discrimination may be apparent from the face of contracts or policies, or there may be discriminatory practices in the way the contract is applied by a program or Defendants. The parties have invested a great deal in this requirement, as detailed in previous reports of the Special Master. It is an issue of great importance to Plaintiffs’ counsel and
42

Case 2:06-cv-02042-LKK-DAD Document 682 Filed 08/06/12 Page 43 of 52
it remains in dispute. There were no new developments during this Round.
Develop an ADA grievance procedure (¶ 54): Defendants put in place an ADA grievance procedure in 2008. After resolving initial difficulties with distributing the form, parole agents have routinely served it with the notice of rights and charges since 2010.90 A staff member is designated to receive, record and respond to grievances, and to arrange accommodations. The procedures to effectuate the Stipulated Injunction’s requirements are captured in policy.91 Defendants received a very small number of complaints on this form over the years, but the contents did not concern ADA issues. They report receiving the first ADArelated grievance in April 2012.92 It was submitted ahead of hearings and requested a wheelchair for the hearing. It was problematic that grievance receipt was substantially delayed by the form containing an outdated mailing address, but Defendants were able to arrange for the requested accommodation at the hearing the following day and the hearing was not delayed to accomplish this.93 As with expedited probable cause hearings, Plaintiffs object that there is insufficient use of this system to reach any findings and that the sole evidence of the system’s functioning is negative and carries the risk that other parolees will not receive needed accommodations when relying on this system. The Special Master agrees with this concern, but sees it as outweighed by the fact that a well-designed system has been in place for an extended period, and that it fulfilled its purpose when called upon to do so. Defendants have put in place the required system and should be considered in substantial compliance.
43

Case 2:06-cv-02042-LKK-DAD Document 682 Filed 08/06/12 Page 44 of 52
RECOMMENDATIONS The Defendants have demonstrated compliance with several additional requirements of the Stipulated Injunction. I therefore recommend that the Court order that the following requirements are substantially compliant, and that the subjects will therefore no longer be a primary focus of Plaintiffs’ or the Special Master’s monitoring unless and until it comes to the parties’ or the Special Master’s attention that there has been a significant decline in compliance. These orders should apply to the following requirements:  Parole Agent and Supervising Parole Agent conference within two business days (¶ 27)  Not accepting written admissions to a violation of parole made prior to the juvenile parolee meeting with counsel (¶ 17)  Violation report within six business days (Exh. A)  Supervising Parole Agent review of violation report within seven business days (Exh. A)  At the time of attorney appointment, provision of relevant educational, mental health and disability identification and source documents (¶ 16)  Return to custody assessment within nine business days (¶ 29)  System for expedited probable cause hearings (¶ 26)  Hearing officers shall provide the factual basis for their findings (¶ 40)  Definition of good cause for delay, remedy for timeframe violation (¶ 33)  Charges may not be split and known charges must be brought at a reasonable time prior to hearing (¶ 34)  Elimination of “temporary detentions” (¶ 39)  Alternatives to incarceration considered at agent-supervisor conference, probable cause hearing and revocation hearing (¶27)
44

Case 2:06-cv-02042-LKK-DAD Document 682 Filed 08/06/12 Page 45 of 52

 Defendants shall make available reasonable accommodations for attorney-client interviews and accommodations shall include additional hours of representation (¶ 23, 49)
 A parolee’s requested accommodation will be given primary consideration and granted unless unreasonable (¶ 50)
 Defendants shall ensure that effective communication equipment is available at revocation proceedings (¶ 53)
 Develop an ADA grievance procedure (¶ 54)
 Comprehensive annual training on ADA and effective communication, the Stipulated Injunction's requirements, policies and procedures, due process (¶ 56)
 Self-monitoring process (¶ 57)
Pursuant to the Order of Reference to the Special Master, the Special Master's reports shall be final unless, no later than twenty (20) days after service of the final report, a party files written objections with the Court. If any party files objections, the opposing party shall have twenty (20) days to file a reply to the objections with the Court. If objections are filed, the Court will consider the matter and issue an order adopting the report in full or as modified, or rejecting the report.

Respectfully submitted,
/s/Virginia L. Morrison
Virginia L. Morrison Special Master

August 3, 2012

45

Case 2:06-cv-02042-LKK-DAD Document 682 Filed 08/06/12 Page 46 of 52
APPENDIX A
In previous Rounds, this Court has found the following specific requirements to be in substantial compliance. Defendants and CalPAP maintained these requirements at or above prior levels. These have been incorporated in the attached report, either as independent descriptions or as components of a larger requirement, as applicable.
 Notice of terms posted (¶ 11)
 Tracking mechanism for timeframes and reasons for delay (¶ 13, 32, 33)
 Level I and II behavior handled by parole units (¶ 25)
 Timely appointment of counsel (¶ 16)
 At the time of attorney appointment, provision of a copy of all the evidence on which the State intends to rely or which may be exculpatory; evidence not provided with at least two days’ notice shall be excluded unless the state shows good cause (¶ 16, 19)
 Attorney will be informed of Return to Custody Assessment by the 10th business day after the hold (¶ 30)
 Adequate time for representation; reasonable access to clients and files; confidential phone calls and space in which to meet; observing staff cannot participate in proceedings (¶ 20, 23)
 Provision of counsel during revocation and revocation extension proceedings (¶ 15, 35)
 At the time of attorney appointment, provision of date, time, and location of the hearing (¶ 16)
 Defendants shall take all reasonable steps to allow counsel to meet with clients at least 24 hours prior to the probable cause hearing (¶ 16)
 State-appointed counsel for juvenile parolees shall be appropriately compensated for hearings and appeals (¶ 24)
 Defendants shall develop standards, guidelines, and training for effective assistance of state-appointed counsel (¶ 21)
46

Case 2:06-cv-02042-LKK-DAD Document 682 Filed 08/06/12 Page 47 of 52
 Not accepting waivers of hearing rights or the right to counsel made prior to the juvenile parolee meeting with counsel; waivers of hearings and requests for continuance must be made in writing in the presence of counsel (¶ 17, 31)
 Parolee waivers of timely hearings and continuances (¶ 31)
 Not in custody hearings within 60 days after service and with all due process and ADA protections (¶ 45)
 Parole revocation hearings to be held within a 50-mile radius of the alleged violation (¶ 36)
 Evidence on the same terms as the state (¶ 33)
 Providing hearing recordings (¶42)
 Right to audio recording (¶ 41)
 Revocation may be extended only after a revocation extension hearing (no timeadds or DDMS time extensions) (¶ 35)
 Revocation Extensions (¶ 35, 40)
 Release within three business days if time has been served (¶ 38)
 Policies and procedures governing dual commitments (¶ 45)
 No delays for accommodations (¶ 51)
 Forms in alternative formats (¶ 55)
1 Senate Bill 1021, enrolled Jun. 28, 2012 2 The Mastership continues to acknowledge that the parties disagree as to whether “substantial compliance” is the legal standard for relief from court oversight. By the use of this term, the Special Master takes no position; it is being used as defined on page 4. 3 Plaintiffs argue that the method of analysis above is incorrect; since the steps are designed to constitute an integrated whole, conclusions cannot be reached about components. The LH system should be assessed as a whole and, as such, is either compliant or noncompliant, and lack of compliance on any requirement is a serious violation of due process, they assert. Defendants wish to emphasize that substantial compliance does not require perfect compliance, and thus a party may be in substantial compliance with a consent decree notwithstanding some minimal level of noncompliance. 4 http://www.cdcr.ca.gov/Regulations/Juvenile_Justice/Adopted_DJJ_Rules.html 5 See, e.g., agendas from the December 2011, March 2012 and May 2012 trainings. Extensive materials were also provided, and the Mastership has observed most training sessions 6 Informal communication with Defendants
47

Case 2:06-cv-02042-LKK-DAD Document 682 Filed 08/06/12 Page 48 of 52
7 The sources for this section are L.H. v. Brown: Periodic Compliance Report, Jun. 22, 2012, Special Master’s observations, informal communication with Defendants 8 As discussed in previous reports of the Special Master, Plaintiffs object to this process, which is termed Decision Review. While it has had some issues in application, it is an excellent quality control mechanism, in the Special Master’s opinion. 9 See, e.g., Policy Bulletin, Subject: Parole Violation Process (CN 410), Oct. 7, 2010 10 Defendants used good methodology, with a 15% sample of the period reviewed being of sufficient size to be representative. L.H. v. Brown: Periodic Compliance Report, Jun. 22, 2012 and related exhibits 11 Closed Case Detail, Step RTCA, Dec. 2011 through May 2012; individual records in electronic folder titled PCD. This review drew on every fourth case from this printout, for a total of 34 cases (16% of the incustody cases for the Round); exceptions were made for cases included in Defendants’ sample and substitutes were chosen 12 L.H. v. Brown: Periodic Compliance Report, Jun. 22, 2012 13 Id. 14 Closed Case Summary, Closed Case Detail, Step PCD, Closed Case Summary – Extradition Cases and Closed Case Summary - NIC Cases, each for Dec. 2011 through May 2012, and associated individual case. The italicized and highlighted entries reflect supplemental cases; the Mastership verified that these were handled within the expected timeframes after initiation 15 Open Case Summary and Open Case Detail Step ALL, May 7, 2012; Defendants’ analysis captured in spreadsheet titled open case summary 5 7 12.xls 16 As discussed infra and in previous reports of the Special Master, Plaintiffs strongly object to parole agents soliciting or accepting parolee statements in the absence of counsel. 17 See, e.g., individual records in the electronic file titled Incomplete NORs-examples.pdf 18 Closed Case Detail, Step NOR June 2012; individual records with the electronic file names June charge reports 1.pdf, June charge reports 2.pdf, and Late May-June charge reports (NORs, observed).pdf 19 Closed Case Summary, Closed Case Detail, Step NOR, Closed Case Summary – Extradition Cases and Closed Case Summary - NIC Cases, each for Dec. 2011 through May 2012, and associated individual cases. The italicized and highlighted entries reflect supplemental cases. 20 Open Case Summary and Open Case Detail Step ALL, May 7, 2012; Defendants’ analysis captured in spreadsheet titled open case summary 5 7 12.xls 21 The parties dispute whether this step is a requirement of the Stipulated Injunction.Defendants contend that the Stipulated Injunction expressly excluded this step as a requirement by the language “The flowchart does not create any rights beyond those expressly set forth in ¶¶ 1 to 57.” It is Plaintiffs’ position that the steps in the flowchart are part of the Stipulated Injunction because it “incorporate[d] by reference” the flowchart and the flowchart is attached as an exhibit. 22 The revocation database appears to do so, but the date entered in that field reflects different activity. 23 On the same basis as with the violation report, the parties dispute whether this step is a requirement of the Stipulated Injunction. 24 This step is not mentioned in the body of the Stipulated Injunction, and it is not included in the listing of steps where Defendants are expected to consider alternatives to incarceration (“No later than two business Days after the Parole Hold is placed, the Parole Agent and Supervising Parole Agent will confer to … 2) consider whether alternatives to incarceration are warranted. The advisability of alternatives to incarceration shall be considered again at the Probable Cause Hearing and at the Revocation Hearing.”) 25 Closed Case Summary, Closed Case Detail, Step VIOLATION, Closed Case Summary – Extradition Cases and Closed Case Summary - NIC Cases, each for Dec. 2011 through May 2012, and associated individual cases. Open Case Summary and Open Case Detail Step ALL, May 7, 2012; Defendants’ analysis captured in spreadsheet titled open case summary 5 7 12.xls. Cases appearing late were extradition cases that the system did not calculate correctly or supplemental cases handled timely after initiation. 26 DJJ Date Case Assigned Compliance Report for each of Dec. 2011 through Apr. 2012 27 This is distinguished from the separate requirement for counsel of choice, which remains subject to full Court oversight 28 See Third Report of the Special Master on the Status of Conditions of the Stipulated Order 29 See, e.g., a recent survey of attorneys contained in L.H. v. Brown: Periodic Compliance Report, Jun. 22, 2012, Exh. F, Exh 4. While it is unclear whether respondents represented a large enough percentage of
48

Case 2:06-cv-02042-LKK-DAD Document 682 Filed 08/06/12 Page 49 of 52
attorneys for juveniles to be representative, the opinions were confirmed in further Special Master conversations with CalPAP administration. 30 L.H. v. Brown: Periodic Compliance Report, Jun. 22, 2012 31 Document Production Itemization for each of Dec. 2011 through Mar. 2012; informal communication with Defendants regarding Apr. through Jun. 2012 32 Spreadsheet with electronic file name Disposed at RTCA Dec. 1 – May 31.xls 33 Closed Case Summary, Closed Case Detail, Step RTCA, Closed Case Summary – NIC Cases, and Closed Case Summary – Extradition Cases for Dec. 2011 through May 2012; associated individual record. The italicized and highlighted entries reflect supplemental cases; the Mastership verified that these were handled within the expected timeframes after initiation. 34 Open Case Summary and Open Case Detail Step ALL, May 7, 2012; Defendants’ analysis captured in spreadsheet titled open case summary 5 7 12.xls 35 CN416 Juvenile Parole Revocation Process, Juvenile Parole Board, , most recent revision provided to the Special Master is signed Oct. 7, 2010 36 DJJ exercised discretion to apply restraints in nine cases; only one did not appear consistent with policy. Previous reports of the Special Master have detailed Plaintiffs’ concerns that restraints based on the dangerous nature of the alleged violation is not a correct interpretation of the negotiated criterion of “present[s] a reasonable likelihood that he/she may become violent …. Such conditions may include behavior while on parole…” In this Round, Plaintiffs cite four such cases; these men were restrained on the basis of charges concerning a stabbing, attempted murder, battery (several months old), and evading and resisting police. The Special Master diagrees in principle as well as in the cited cases. 37 The Mastership examined 79 probable cause hearings (54% of the total) and 17 revocation hearings (65% of the total). Among these, 46 were not restrained, 40 were restrained pursuant to county jail policy, 9 were restrained by DJJ discretion, and 1 could not be determined. 38 Email from S. Wolff dated Mar. 6, 2012 39 Standards for Attorneys in Revocation Proceedings, Juvenile Parole Revocation Process, both dated Oct. 7, 2010; Standard Agreement with University of Pacific, McGeorge School of Law, Mar. 24, 2009 40 L.H. v. Brown: Periodic Compliance Report, Jun. 22, 2012 41 CalPAP Requested Expedited Hearings, Feb. 1, 2009 through Jun. 27, 2012 42 The Mastership reviewed 27 hearings onsite and their related orders, 52 orders randomly selected, and an additional 22 orders from CalPAP material identifying cases in which probable cause was challenged, for a total of 100 cases. This constitutes 68% of 149 probable cause hearings in the Round, although there may have been a handful of duplicates. DJJ Challenges to Probable Cause, Dec. 2011 though Apr 2012; Closed Case Summary and Closed Case – NIC Cases for Dec. 2011 through May 2012; Closed Case Detail, Step PCH for those months; associated individual records in electronic folder titled Probable Cause; individual records in electronic folder titled PCH-OWR 43 See Plaintiffs’ monitoring reports and letters analyzing document productions issued between January 2012 and July 2, 2012; DJJ Challenges to Probable Cause, Dec. 2011 though Apr 2012 44 There were 58 such cases at issue; the rest of the sample did not have a probable cause argument, according to CalPAP and the hearing records. Of the 58 cases, 14 did not mention the argument, while 44 included the argument and other points the parolee wanted raised. 45 When assessing whether probable cause was present for each charge, the Masterhip reviewed a total of 79 cases, a little over half of the hearings. 46 Missing Board Orders for each of Dec. 2011 through May 2012 47 In the dozens of hearings the Mastership observed during the Round, only one call was placed to staff who were not hearing participants.That call was conducted in the presence of the parties, a practice that reduces outside influence on the outcome by allowing parties to take the call information into account and counteract it if they wish. This change is a helpful contribution to due process. 48 DJJ Probable Cause Hearing Compliance Report for each of Dec. 2011 through May 2012; Closed Case Summary, Closed Case Detail, Step PCH, and Closed Case Summary – Extradition Cases for Dec. 2011 through May 2012; associated individual records. The one late case occurred because rooms at the jail were unavailable on the scheduled hearing date. The State’s and CalPAP records concerning the final hearing date differ by one day. Other cases appearing late were time waivers and postponements heard within agreed timeframes or supplemental cases heard within 13 business days of initiation.
49

Case 2:06-cv-02042-LKK-DAD Document 682 Filed 08/06/12 Page 50 of 52
49 Optional Waiver CalPAP, Dec. 2011 through May 2012; DJJ Optional Waiver Activated Cases for each of those months 50 Open Case Summary and Open Case Detail Step ALL, May 7, 2012; Defendants’ analysis captured in spreadsheet titled open case summary 5 7 12.xls 51 Closed Case Summary – Postponement, Dec. 2011 through May 2012 and Open Case Summary – Postponement, run Jun. 30, 2012 52 See contents of electronic folders titled PCH+RTCA, PPs, and RevHs, and DJJ Revocation Extension Cases for each of Dec. 2011 through May 2012 53 These agreements are captured in Joint Stipulation Regarding Modifications to Division of Juvenile Justice Parole Revocation Policies and Procedures, Sept. 10, 2009. Plaintiffs maintain that the Injunction is violated whenever the 35-day timeframe is not met without a showing of good cause, and that a case should be dismissed if the hearing has not been held within 60 days after the hold. 54 See contents of electronic folders titled PPs, RevHs, and NICs 55 For sources for this section, please see the data reports and individual records in the electronic folders titled OSM observations & reviews/RevH and RevHs 56 See Plaintiffs’ monitoring reports and letters analyzing document productions, and Defendants’ letters in response, issued between January 2012 and July 2, 2012 57 Individual records in the electronic folders titled OSM observations & reviews/RevH and RevHs; Other Objections for each of Dec. 2011 through April 2012 58 See Denied Comito Objections and Granted Comito Objections for each of Dec. 2011 through May 2012 and associated individual records 59 Missing Board Orders for each of Dec. 2011 through May 2012 60 DJJ Revocation Hearing Cases-Over 35 Days, and DJJ NIC Cases Closed, for each of Dec. 2011 through May 2012 61 Closed Case Summary, Closed Case Detail, Step RevH, Closed Case Summary – Extradition Cases and Closed Case Summary – NIC Cases, Optional Waiver CalPAP, and Closed Case Summary – Postponement, all for Dec. 2011 through May 2012, and associated individual cases. In the one untimely case, the parolee had requested a two-week time waiver and the rehearing took place three days after the time waived. Other cases appearing late were explained by time waivers, an optional waiver, and a postponement because the parolee was in court; each of these was reheard within the negotiated timeframe. Another three cases were concluded timely but appear late because they were reopened to record changes in the parolee’s favor from the Decision Review process or Appeals process. 62 Open Case Summary and Open Case Detail Step ALL, May 7, 2012; Defendants’ analysis captured in spreadsheet titled open case summary 5 7 12.xls 63 Closed Case Detail, Step NOR, Dec. 2011 through May 2012, and associated individual records 64 Closed Case Detail reports for timely and late Probable Cause Determinations, Dec. 2011 through May 2012, and associated individual records. Supplemental cases are indicated by highlighted and italics. 65 See Seventh Report of the Special Master on the Status of Conditions of the Stipulated Order 66 Closed Case Summary – Postponement Dec. 2011; Closed Case Summary – Postponement Jan. through May 2012; and associated individual cases 67 Informal communication with CalPAP 68 Dept. of the Youth Authority Parole Services Manual, Ward Services Chapter, Subject: Temporary Detention 4190 69 L.H. v. Brown: Periodic Compliance Report, Jun. 22, 2012, Exh. L 70 Spreadsheet with the electronic file name Cases released within 30 days.xlsx and related individual records. Since some pre-LH temporary detentions were extended beyond 30 days, this list might not capture all potential temporary detentions, but it is a reasonable approximation.The study examined all cases in custody between 10 and 30 days, a 30% sample. 71 L.H. v. Brown: Periodic Compliance Report, Jun. 22, 2012 serves as the source for this paragraph. It uses a slightly different timeframe than does the hearings analysis. While Defendants included referrals to not in custody hearings in their analysis, the Special Master declines to do so. It is a beneficial practice to maintain parolees in the community and minimize disruption to employment and relationships; it is not, however, a final disposition and should be discussed separately. 72 As described above, the Mastership reviewed more than half of the probable cause hearings for this point, a total of 80 cases. Among those, consideration could not be determined in only six cases.
50

Case 2:06-cv-02042-LKK-DAD Document 682 Filed 08/06/12 Page 51 of 52
73 Among the 17 cases examined (64% of the total), nearly all expressly documented consideration or it was rendered unnecessary because the case was dismissed or the parolee was given credit for time served. There was only one documentation exception. Four cases were granted an alternative. 74 This reflects the total given corrective action plans with no holds placed (67), removed from the revocation process at the parole unit (76), and ordered at probable cause hearings (9) and revocation hearings (4). The parole unit numbers would be higher when including cases from December 2011. The hearings numbers are from a sample, so the totals are also undoubtedly higher. The numbers herein are based on cases continued on parole or given specific alternatives such as electronic monitoring or programs; it does not include dismissals at hearings or credit for time served, as these may have been ordered for other reasons. 75 Appeals documents within monthly document productions , and report titled DJJ Appeals Cases, for each of Dec. 2011through May 2012 76 DJJ Decision Review Cases for each of Dec. 2011through May 2012 and associated individuals’ records 77 Wherever the term “accommodations” is used in this report, it should be understood to include effective communication assistance. 78 While the responses were spontaneous and not researched, they suggest general trends in the type and frequency of disabilities. 79 Certain kinds of processing disorders, for example, require highlighting text; using as much visual material as possible, or no written material at all; limiting distractions; using only concrete terms, and so forth. 80 Plaintiffs object to this practice, noting that, with some parolees likely to conceal accommodation needs, those needs may go unidentified by attorneys and hearing officers, and a stipulation does not cure that. They are concerned that a stipulation is not equivalent to a thorough ADA review and that stipulations may be given by rote. Defendants respond that parolees are appointed counsel specifically to ensure that their ADA needs are met and due process and equal protection rights are provided. Defendants assert that parolees’ attorneys -- who have met with the parolees, observed them during hearings, and are familiar with their needs -- are in the best position to evaluate whether their clients’ needs have been adequately addressed during parole proceedings. 81 This paragraph summarizes all cases in which Plaintiffs raise a concern that an accommodation was not provided during the Round. See Plaintiffs’ monitoring reports and letters analyzing document productions, and Defendants’ letters in response, issued between January 2012 and July 2, 2012.
Counsel raise a similar concern about whether accommodations were provided when parole agents discussed the conditions of parole with three parolees with likely disabilities, as the accommodations are not marked. 82 The exact language of Paragraph 49 is “Defendants shall make accommodations for Juvenile Parolees with Disabilities and effective communication needs in order to assist them in preparing for Revocation Proceedings. Such accommodation shall include up to three additional hours of representation by appointed counsel.” Since there is a separate requirement for Defendants to provide reasonable accommodations in revocation proceedings, the Special Master interprets Paragraph 49’s reference to “preparing for Revocation Proceedings” to mean attorney-client contacts. 83 Standard Agreement with University of Pacific, McGeorge School of Law, Mar. 24, 2009, Exhibit A-1, p. 99; informal communication with CalPAP 84 L.H. v. Brown: Periodic Compliance Report, Jun. 22, 2012, Exh. F, Exh 4.
There are a total of four designated staff in the state – Wards With Disabilities Program Coordinators and the Juvenile Parole Board ADA Coordinator. In addition to providing equipment and arranging sign language interpreters, they provide phones for language translation and in-person interpreters. The audit report discusses this provision at DJJ facilities. Additionally, these staff provide these services for attorney-client meetings in jails, employing the same procedures as when the services are needed for hearings in the jails. Informal communication with Defendants.
Of the 77 attorneys authorized to represent juveniles, 8 responded to a survey on the points in this section. All survey answers confirmed that accommodations have been available. 85 L.H. v. Brown: Periodic Compliance Report, Jun. 22, 2012; Special Master’s observations 86 Denial Report by facility or region for each of Jul. 2010 through May 2012
51

Case 2:06-cv-02042-LKK-DAD Document 682 Filed 08/06/12 Page 52 of 52
87 Plaintiffs object that, to the extent an agent has a kit in the car, this is insufficient in that it is possible he or she could discover a need during service and need to return to the car to retrieve the equipment. 88 Special Master’s and monitors’ observations 89 For this section, see Plaintiffs’ monitoring reports and letters analyzing document productions issued between January 2012 and July 2, 2012 90 Special Master’s observations onsite and in revocation packet reviews 91 L.H. v. Brown: Periodic Compliance Report, Jun. 22, 2012 92 LH Document Production (itemization) for each month from June 2009 through May 2012; ADA/EC Grievance Statistics Apr. 2012 93 ADA/EC Grievance Statistics Apr. 2012, associated individual hearing record
52

 
 1

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

8

EASTERN DISTRICT OF CALIFORNIA

9

10 L.H., A.Z., D.K., and D.R., on behalf of themselves and
11 all other similarly situated juvenile parolees
12 in California,

13

Plaintiffs,

NO. CIV. S-06-2042 LKK/GGH

14

v.

15 EDMUND G. BROWN, JR., Governor, State of
16 California, et al,

O R D E R

17

Defendants.

/

18

19

The Special Master filed her Eighth Report on August 6, 2012.

20 Dkt. No. 682. No objections were filed. The court has considered

21 the report and ADOPTS its findings and recommendations in full.

22

Further, the court HEREBY FINDS (as recommended in the Report

23 at pp.44-45), that defendants have demonstrated substantial

24 compliance with the following requirements:

25 • 26

Parole Agent and Supervising Parole Agent conference within two business days.

1

1•
2 •
3 •
4

Not accepting written admissions to a violation of parole made prior to the juvenile parolee meeting with counsel.
Violation report within six business days.
Supervising Parole Agent review of violation report within seven business days.

5• 6

At the time of attorney appointment, provision of relevant educational, mental health and disability identification and source documents.

7 • Return to custody assessment within nine business days.

8 • System for expedited probable cause hearings.

9•
10 •
11

Hearing officers shall provide the factual basis for their findings.
Definition of good cause for delay, remedy for timeframe violation.

12 •
13 •
14 •
15

Charges may not be split and known charges must be brought at a reasonable time prior to hearing.
Elimination of “temporary detentions.”
Alternatives to incarceration considered at agent-supervisor conference, probable cause hearing and revocation hearing.

16 • 17

Defendants shall make available reasonable accommodations for attorney-client interviews and accommodations shall include additional hours of representation.

18 •
19 •
20

A parolee’s requested accommodation will be given primary consideration and granted unless unreasonable.
Defendants shall ensure that effective communication equipment is available at revocation proceedings.

21 • Develop an ADA grievance procedure.

22 • 23

Comprehensive annual training on ADA and effective communication, the Stipulated Injunction's requirements, policies and procedures, due process.

24 • Self-monitoring process.

25

These requirements will therefore no longer be a primary focus

26 of Plaintiffs’ or the Special Master’s monitoring unless and until

2

1 it comes to the parties’ or the Special Master’s attention that

2 there has been a significant decline in compliance.

3

IT IS SO ORDERED.

4

DATED: September 7, 2012.

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

3

 
 Case: 2:06-cv-2042 As of: 07/19/2015 05:31 PM PDT 1 of 70
CIVIL,CLOSED
U.S. District Court Eastern District of California − Live System (Sacramento) CIVIL DOCKET FOR CASE #: 2:06−cv−02042−LKK−DAD

L.H. et al v. Schwarzenegger et al Assigned to: Judge Lawrence K. Karlton Referred to: Magistrate Judge Dale A. Drozd Cause: 42:1981 Civil Rights Special Master Chase Riveland TERMINATED: 05/26/2010
Special Master Virginia L. Morrison TERMINATED: 01/16/2014
Special Master Patricia A. Gray TERMINATED: 09/08/2011 Plaintiff L.H.

Date Filed: 09/13/2006 Date Terminated: 07/10/2013 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by Chase Riveland Riveland Associates 5714 Deer Harbor Road P.O. Box 367 Deer Harbor, WA 98243 Email: riveland@rockisland.com PRO SE
represented by Virginia Louise Morrison Collaboration Specialists 39 Allyn Avenue San Anselmo, CA 94960 415−524−8203 Email: gmorrison@collaboration−specialists.com ATTORNEY TO BE NOTICED
represented by Carole Shauffer Youth Law Center 200 Pine Street San Francisco, CA 94104 415543−3379 3227 Fax: 415956−9022 Email: cshauffer@ylc.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sanford Jay Rosen Rosen Bien & Galvan, LLP 315 Montgomery Street 10th Floor San Francisco, CA 94104 (415) 433−6830 x206 Fax: (415) 433−7104 Email: srosen@rbgg.com LEAD ATTORNEY
Briana Lynn Morgan Bingham McCutchen LLP (San Francisco) Three Embarcadero Center Suite 2800 San Francisco, CA 94111 415−393−2288 Fax: 415−393−2286

Case: 2:06-cv-2042 As of: 07/19/2015 05:31 PM PDT 2 of 70
Email: briana.morgan@bingham.com
Corene Thaedra Kendrick Prison Law Office 1917 5th Street Berkeley, CA 94710 510−280−2621 Fax: 510−280−2704 Email: ckendrick@prisonlaw.com ATTORNEY TO BE NOTICED
Donald Specter Prison Law Office 1917 Fifth Street Berkeley, CA 94710−1916 510−280−2621 Fax: 510−280−2704 Email: dspecter@prisonlaw.com ATTORNEY TO BE NOTICED
Elizabeth Hope Eng Rosen, Bien & Galvan, LLP 315 Montgomery Street 10th Floor San Francisco, CA 94104 415−433−6830 Fax: 415−433−7104 Email: leng@rbg−law.com TERMINATED: 07/27/2010
Gay Crosthwait Grunfeld Rosen Bien Galvan and Grunfeld LLP 315 Montgomery Street 10th Floor San Francisco, CA 94104 415−433−6830 x 243 Fax: 415−433−7104 Email: ggrunfeld@rbgg.com ATTORNEY TO BE NOTICED
Geoffrey Thomas Holtz Morgan, Lewis & Bockius LLP One Market, Spear Street Tower San Francisco, CA 94105 (415) 442−1414 Fax: (415) 442−1001 Email: gholtz@morganlewis.com ATTORNEY TO BE NOTICED
Karen Kennard Bingham McCutchen LLP Three Embarcadero Center Suite 1800 San Francisco, CA 94111 415−393−2626 Email: karen.kennard@bingham.com TERMINATED: 05/09/2007
Kristen A Palumbo Morgan, Lewis & Bockius LLP One Market Street, Spear Street Tower San Francisco, CA 94105 (415) 442−1000 Fax: (415) 442−1001 Email: kristen.palumbo@morganlewis.com

Case: 2:06-cv-2042 As of: 07/19/2015 05:31 PM PDT 3 of 70
ATTORNEY TO BE NOTICED
Loren Grey Stewart Rosen Bien & Galvan, LLP 315 Montgomery Street 10th Floor San Francisco, CA 94104 (415) 433−6830 Fax: (415) 433−7104 Email: lstewart@rbg−law.com TERMINATED: 04/01/2009
Maria V. Morris Southern Poverty Law Center 400 Washington Av Montgomery, AL 36104 334−956−8200 Email: maria.morris@splcenter.org TERMINATED: 06/13/2011
Meghan Regina Lang Rosen Bien & Galvan, LLP 315 Montgomery Street 10th Floor San Francisco, CA 94104 (415) 433−6830 Fax: (415) 433−7104
Michael Bien Rosen Bien Galvan & Grunfeld LLP 315 Montgomery Street 10th Floor San Francisco, CA 94104 (415) 433−6830 Fax: (415) 433−7104 Email: mbien@rbgg.com ATTORNEY TO BE NOTICED
Sarah Laubach Rosen Bien & Galvan, LLP 315 Montgomery Street 10th Floor San Francisco, CA 94104 415−433−6830−237
Shirley Huey Rosen Bien Galvan and Grunfeld LLP 315 Montgomery Street 10th Floor San Francisco, CA 94104 (415) 433−6830 Fax: (415) 433−7104 Email: shuey@rbgg.com TERMINATED: 10/30/2012
Sumana Cooppan Rosen Bien Galvan & Grunfeld LLP 315 Montgomery St. 10th Floor San Francisco, CA 94104 415−433−6830 Fax: 415−433−7104 Email: scooppan@rbgg.com ATTORNEY TO BE NOTICED

Case: 2:06-cv-2042 As of: 07/19/2015 05:31 PM PDT 4 of 70

Susan Lynn Burrell Youth Law Center 417 Montgomery Street Suite 900 San Francisco, CA 94104 415−543−3379 3911 Fax: 415−956−9022 Email: sburrell@ylc.org ATTORNEY TO BE NOTICED

Plaintiff A.Z.

represented by Carole Shauffer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sanford Jay Rosen (See above for address) LEAD ATTORNEY

Briana Lynn Morgan (See above for address)

Corene Thaedra Kendrick (See above for address) ATTORNEY TO BE NOTICED

Donald Specter (See above for address) ATTORNEY TO BE NOTICED

Elizabeth Hope Eng (See above for address) TERMINATED: 07/27/2010

Gay Crosthwait Grunfeld (See above for address) ATTORNEY TO BE NOTICED

Geoffrey Thomas Holtz (See above for address) ATTORNEY TO BE NOTICED

Karen Kennard (See above for address) TERMINATED: 05/09/2007

Kristen A Palumbo (See above for address) ATTORNEY TO BE NOTICED

Maria V. Morris (See above for address) TERMINATED: 06/13/2011

Meghan Regina Lang (See above for address)

Michael Bien (See above for address) ATTORNEY TO BE NOTICED

Sarah Laubach (See above for address)

Case: 2:06-cv-2042 As of: 07/19/2015 05:31 PM PDT 5 of 70

Plaintiff D.K.

Shirley Huey (See above for address) TERMINATED: 10/30/2012
Sumana Cooppan (See above for address) ATTORNEY TO BE NOTICED
Susan Lynn Burrell (See above for address) ATTORNEY TO BE NOTICED
represented by Carole Shauffer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sanford Jay Rosen (See above for address) LEAD ATTORNEY
Briana Lynn Morgan (See above for address)
Corene Thaedra Kendrick (See above for address) ATTORNEY TO BE NOTICED
Donald Specter (See above for address) ATTORNEY TO BE NOTICED
Elizabeth Hope Eng (See above for address) TERMINATED: 07/27/2010
Gay Crosthwait Grunfeld (See above for address) ATTORNEY TO BE NOTICED
Geoffrey Thomas Holtz (See above for address) ATTORNEY TO BE NOTICED
Karen Kennard (See above for address) TERMINATED: 05/09/2007
Kristen A Palumbo (See above for address) ATTORNEY TO BE NOTICED
Maria V. Morris (See above for address) TERMINATED: 06/13/2011
Meghan Regina Lang (See above for address)
Michael Bien (See above for address) ATTORNEY TO BE NOTICED

Case: 2:06-cv-2042 As of: 07/19/2015 05:31 PM PDT 6 of 70

Plaintiff D.R.

Sarah Laubach (See above for address)
Sumana Cooppan (See above for address) ATTORNEY TO BE NOTICED
Susan Lynn Burrell (See above for address) ATTORNEY TO BE NOTICED
represented by Carole Shauffer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sanford Jay Rosen (See above for address) LEAD ATTORNEY
Briana Lynn Morgan (See above for address)
Corene Thaedra Kendrick (See above for address) ATTORNEY TO BE NOTICED
Donald Specter (See above for address) ATTORNEY TO BE NOTICED
Elizabeth Hope Eng (See above for address) TERMINATED: 07/27/2010
Gay Crosthwait Grunfeld (See above for address) ATTORNEY TO BE NOTICED
Geoffrey Thomas Holtz (See above for address) ATTORNEY TO BE NOTICED
Karen Kennard (See above for address) TERMINATED: 05/09/2007
Kristen A Palumbo (See above for address) ATTORNEY TO BE NOTICED
Maria V. Morris (See above for address) TERMINATED: 06/13/2011
Meghan Regina Lang (See above for address)
Michael Bien (See above for address) ATTORNEY TO BE NOTICED

Case: 2:06-cv-2042 As of: 07/19/2015 05:31 PM PDT 7 of 70

Sarah Laubach (See above for address)

Sumana Cooppan (See above for address) ATTORNEY TO BE NOTICED

Susan Lynn Burrell (See above for address) ATTORNEY TO BE NOTICED

Plaintiff M. N.

represented by Carole Shauffer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sanford Jay Rosen (See above for address) LEAD ATTORNEY

Briana Lynn Morgan (See above for address)

Corene Thaedra Kendrick (See above for address) ATTORNEY TO BE NOTICED

Donald Specter (See above for address) ATTORNEY TO BE NOTICED

Elizabeth Hope Eng (See above for address) TERMINATED: 07/27/2010

Gay Crosthwait Grunfeld (See above for address) ATTORNEY TO BE NOTICED

Geoffrey Thomas Holtz (See above for address) ATTORNEY TO BE NOTICED

Kristen A Palumbo (See above for address) ATTORNEY TO BE NOTICED

Maria V. Morris (See above for address) TERMINATED: 06/13/2011

Meghan Regina Lang (See above for address)

Michael Bien (See above for address) ATTORNEY TO BE NOTICED

Sarah Laubach (See above for address)

Shirley Huey (See above for address)

Case: 2:06-cv-2042 As of: 07/19/2015 05:31 PM PDT 8 of 70

TERMINATED: 10/30/2012

Sumana Cooppan (See above for address) ATTORNEY TO BE NOTICED

Susan Lynn Burrell (See above for address) ATTORNEY TO BE NOTICED

Plaintiff R. C.

represented by Carole Shauffer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sanford Jay Rosen (See above for address) LEAD ATTORNEY

Briana Lynn Morgan (See above for address)

Corene Thaedra Kendrick (See above for address) ATTORNEY TO BE NOTICED

Donald Specter (See above for address) ATTORNEY TO BE NOTICED

Elizabeth Hope Eng (See above for address) TERMINATED: 07/27/2010

Gay Crosthwait Grunfeld (See above for address) ATTORNEY TO BE NOTICED

Geoffrey Thomas Holtz (See above for address) ATTORNEY TO BE NOTICED

Kristen A Palumbo (See above for address) ATTORNEY TO BE NOTICED

Maria V. Morris (See above for address) TERMINATED: 06/13/2011

Meghan Regina Lang (See above for address)

Michael Bien (See above for address) ATTORNEY TO BE NOTICED

Sarah Laubach (See above for address)

Shirley Huey (See above for address) TERMINATED: 10/30/2012

Case: 2:06-cv-2042 As of: 07/19/2015 05:31 PM PDT 9 of 70

Sumana Cooppan (See above for address) ATTORNEY TO BE NOTICED
Susan Lynn Burrell (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
Arnold Schwarzenegger Governor, State of California

represented by Paul B Mello Hanson Bridgett LLP 1676 N. California Blvd. Suite 620 Walnut Creek, CA 94596 925−746−8460 Fax: 925−746−8492 Email: pmello@hansonbridgett.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Samantha Derin Wolff Hanson Bridgett, LLP 425 Market Street 26th Floor San Francisco, CA 94105 415−995−5020 Fax: 415−995−3547 Email: swolff@hansonbridgett.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Walter R. Schneider Hanson Bridgett LLP 425 Market Street 26th Floor San Francisco, CA 94105 415−995−5078 Fax: 415−541−9366 Email: wschneider@hansonbridgett.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alberto S. Roldan , NCAED California Department of Corrections and Rehabilitation Office of Legal Affairs 1515 S Street Suite 319, South Sacramento, CA 95811 916−327−8437 Fax: 916−255−1444 TERMINATED: 12/23/2008
Benjamin Terrence Rice California Department of Corrections and Rehabilitation Office of Legal Affairs 1515 S Street Suite 314, South Sacramento, CA 95811 916−323−6001

Case: 2:06-cv-2042 As of: 07/19/2015 05:31 PM PDT 10 of 70
Email: benjamin.rice@cdcr.ca.gov TERMINATED: 12/23/2008
Cynthia Clarke Fritz California Attorney General's Office 455 Golden Gate Avenue Suite 11000 San Francisco, CA 94102 415−703−5716 Fax: 415−703−5843 Email: cynthia.fritz@doj.ca.gov TERMINATED: 11/12/2008
James Michael Sobolewski Office of the Attorney General PO Box 944255 Sacramento, CA 94244−2550 (916) 327−6758 Fax: (916) 324−5205 Email: james.sobolewski@doj.ca.gov TERMINATED: 07/20/2007
Katherine Tebrock Attorney General's Office for the State of California Department of Justice 1300 I Street Suite 1101 Sacramento, CA 94244−2550 916−323−2929 Email: katherine.tebrock@cdcr.ca.gov TERMINATED: 07/05/2007
Michelle L. Angus Attorney General's Office of the State of California P.O. Box 944255 1300 I Street Suite 125 Sacramento, CA 94244−2550 916−445−2395 Fax: 916−324−5205 Email: michelle.angus@doj.ca.gov TERMINATED: 01/14/2008
Renju Palanilkumuryil Jacob (415) 995−5049 Fax: (415) 541−9366 Email: rjacob@hansonbridgett.com TERMINATED: 10/03/2012
Sally Anne Johnson Hanson Bridgett LLP 425 Market Street 26th Floor San Francisco, CA 94105 415−777−3200−5068 Fax: 415−541−9366 Email: ajohnson@hansonbridgett.com
Timothy John McDonough Attorney General's Office for the State of California 455 Golden Gate Avenue Suite 11000

Case: 2:06-cv-2042 As of: 07/19/2015 05:31 PM PDT 11 of 70

San Francisco, CA 94102 415−703−5606 Fax: 415−703−5843 Email: tim.mcdonough@doj.ca.gov TERMINATED: 11/12/2008

William C. Kwong Deputy Attorney General 455 Golden Gate Avenue Suite 11000 San Francisco, CA 94102 (415) 703−5724 Fax: (415) 703−5843 Email: William.Kwong@doj.ca.gov TERMINATED: 11/12/2008

Defendant
James E. Tilton Secretary , California Department of Corrections and Rehabilitation

represented by Paul B Mello (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sally Anne Johnson (See above for address) LEAD ATTORNEY

Alberto S. Roldan , NCAED (See above for address) TERMINATED: 12/23/2008

Benjamin Terrence Rice (See above for address) TERMINATED: 12/23/2008

Cynthia Clarke Fritz (See above for address) TERMINATED: 11/12/2008

James Michael Sobolewski (See above for address) TERMINATED: 07/20/2007

Katherine Tebrock (See above for address) TERMINATED: 07/05/2007

Michelle L. Angus (See above for address) TERMINATED: 01/14/2008

Timothy John McDonough (See above for address) TERMINATED: 11/12/2008

William C. Kwong (See above for address) TERMINATED: 11/12/2008

Defendant
Kingston Bud Prunty Undersecretary, CDCR

represented by Paul B Mello (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:06-cv-2042 As of: 07/19/2015 05:31 PM PDT 12 of 70

Sally Anne Johnson (See above for address) LEAD ATTORNEY

Alberto S. Roldan , NCAED (See above for address) TERMINATED: 12/23/2008

Benjamin Terrence Rice (See above for address) TERMINATED: 12/23/2008

Cynthia Clarke Fritz (See above for address) TERMINATED: 11/12/2008

James Michael Sobolewski (See above for address) TERMINATED: 07/20/2007

Katherine Tebrock (See above for address) TERMINATED: 07/05/2007

Michelle L. Angus (See above for address) TERMINATED: 01/14/2008

Timothy John McDonough (See above for address) TERMINATED: 11/12/2008

William C. Kwong (See above for address) TERMINATED: 11/12/2008

Defendant
Bernard Warner Chief Deputy Secretary of the Division of Juvenile Justice

represented by Paul B Mello (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sally Anne Johnson (See above for address) LEAD ATTORNEY

Alberto S. Roldan , NCAED (See above for address) TERMINATED: 12/23/2008

Benjamin Terrence Rice (See above for address) TERMINATED: 12/23/2008

Cynthia Clarke Fritz (See above for address) TERMINATED: 11/12/2008

James Michael Sobolewski (See above for address) TERMINATED: 07/20/2007

Katherine Tebrock (See above for address)

Case: 2:06-cv-2042 As of: 07/19/2015 05:31 PM PDT 13 of 70

TERMINATED: 07/05/2007

Michelle L. Angus (See above for address) TERMINATED: 01/14/2008

Timothy John McDonough (See above for address) TERMINATED: 11/12/2008

William C. Kwong (See above for address) TERMINATED: 11/12/2008

Defendant
Dennis Dulay Acting Deputy Director of the Division of Juvenile Parole Operations

represented by Paul B Mello (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sally Anne Johnson (See above for address) LEAD ATTORNEY

Alberto S. Roldan , NCAED (See above for address) TERMINATED: 12/23/2008

Benjamin Terrence Rice (See above for address) TERMINATED: 12/23/2008

Cynthia Clarke Fritz (See above for address) TERMINATED: 11/12/2008

James Michael Sobolewski (See above for address) TERMINATED: 07/20/2007

Katherine Tebrock (See above for address) TERMINATED: 07/05/2007

Michelle L. Angus (See above for address) TERMINATED: 01/14/2008

Timothy John McDonough (See above for address) TERMINATED: 11/12/2008

William C. Kwong (See above for address) TERMINATED: 11/12/2008

Defendant
John Monday Executive Director of the Board of Parole Hearings

represented by Paul B Mello (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sally Anne Johnson (See above for address)

Case: 2:06-cv-2042 As of: 07/19/2015 05:31 PM PDT 14 of 70

LEAD ATTORNEY

Alberto S. Roldan , NCAED (See above for address) TERMINATED: 12/23/2008

Benjamin Terrence Rice (See above for address) TERMINATED: 12/23/2008

Cynthia Clarke Fritz (See above for address) TERMINATED: 11/12/2008

James Michael Sobolewski (See above for address) TERMINATED: 07/20/2007

Katherine Tebrock (See above for address) TERMINATED: 07/05/2007

Michelle L. Angus (See above for address) TERMINATED: 01/14/2008

Timothy John McDonough (See above for address) TERMINATED: 11/12/2008

William C. Kwong (See above for address) TERMINATED: 11/12/2008

Defendant
James Davis Chair of BPH

represented by Paul B Mello (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sally Anne Johnson (See above for address) LEAD ATTORNEY

Alberto S. Roldan , NCAED (See above for address) TERMINATED: 12/23/2008

Benjamin Terrence Rice (See above for address) TERMINATED: 12/23/2008

Cynthia Clarke Fritz (See above for address) TERMINATED: 11/12/2008

James Michael Sobolewski (See above for address) TERMINATED: 07/20/2007

Katherine Tebrock (See above for address) TERMINATED: 07/05/2007

Case: 2:06-cv-2042 As of: 07/19/2015 05:31 PM PDT 15 of 70

Michelle L. Angus (See above for address) TERMINATED: 01/14/2008

Timothy John McDonough (See above for address) TERMINATED: 11/12/2008

William C. Kwong (See above for address) TERMINATED: 11/12/2008

Defendant
Joyce Arredondo Commissioner of the BPH assigned to hear juvenile matters

represented by Paul B Mello (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sally Anne Johnson (See above for address) LEAD ATTORNEY

Benjamin Terrence Rice (See above for address) TERMINATED: 12/23/2008

Cynthia Clarke Fritz (See above for address) TERMINATED: 11/12/2008

James Michael Sobolewski (See above for address) TERMINATED: 07/20/2007

Katherine Tebrock (See above for address) TERMINATED: 07/05/2007

Michelle L. Angus (See above for address) TERMINATED: 01/14/2008

Timothy John McDonough (See above for address) TERMINATED: 11/12/2008

William C. Kwong (See above for address) TERMINATED: 11/12/2008

Defendant
Paul Chabot Commissioner of the BPH assigned to hear juvenile matters

represented by Paul B Mello (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sally Anne Johnson (See above for address) LEAD ATTORNEY

Alberto S. Roldan , NCAED (See above for address) TERMINATED: 12/23/2008

Case: 2:06-cv-2042 As of: 07/19/2015 05:31 PM PDT 16 of 70

Benjamin Terrence Rice (See above for address) TERMINATED: 12/23/2008

Cynthia Clarke Fritz (See above for address) TERMINATED: 11/12/2008

James Michael Sobolewski (See above for address) TERMINATED: 07/20/2007

Katherine Tebrock (See above for address) TERMINATED: 07/05/2007

Michelle L. Angus (See above for address) TERMINATED: 01/14/2008

Timothy John McDonough (See above for address) TERMINATED: 11/12/2008

William C. Kwong (See above for address) TERMINATED: 11/12/2008

Defendant
Joseph Compton Commissioner of the BPH assigned to hear juvenile matters

represented by Paul B Mello (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sally Anne Johnson (See above for address) LEAD ATTORNEY

Alberto S. Roldan , NCAED (See above for address) TERMINATED: 12/23/2008

Benjamin Terrence Rice (See above for address) TERMINATED: 12/23/2008

Cynthia Clarke Fritz (See above for address) TERMINATED: 11/12/2008

James Michael Sobolewski (See above for address) TERMINATED: 07/20/2007

Katherine Tebrock (See above for address) TERMINATED: 07/05/2007

Michelle L. Angus (See above for address) TERMINATED: 01/14/2008

Timothy John McDonough (See above for address)

Case: 2:06-cv-2042 As of: 07/19/2015 05:31 PM PDT 17 of 70

TERMINATED: 11/12/2008

William C. Kwong (See above for address) TERMINATED: 11/12/2008

Defendant
Susan Melanson Commissioner of the BPH assigned to hear juvenile matters

represented by Paul B Mello (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sally Anne Johnson (See above for address) LEAD ATTORNEY

Alberto S. Roldan , NCAED (See above for address) TERMINATED: 12/23/2008

Benjamin Terrence Rice (See above for address) TERMINATED: 12/23/2008

Cynthia Clarke Fritz (See above for address) TERMINATED: 11/12/2008

James Michael Sobolewski (See above for address) TERMINATED: 07/20/2007

Katherine Tebrock (See above for address) TERMINATED: 07/05/2007

Michelle L. Angus (See above for address) TERMINATED: 01/14/2008

Timothy John McDonough (See above for address) TERMINATED: 11/12/2008

William C. Kwong (See above for address) TERMINATED: 11/12/2008

Defendant
Chuck Supple Commissioner of the BPH assigned to hear juvenile matters

represented by Paul B Mello (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sally Anne Johnson (See above for address) LEAD ATTORNEY

Alberto S. Roldan , NCAED (See above for address) TERMINATED: 12/23/2008

Benjamin Terrence Rice (See above for address)

Case: 2:06-cv-2042 As of: 07/19/2015 05:31 PM PDT 18 of 70

TERMINATED: 12/23/2008

Cynthia Clarke Fritz (See above for address) TERMINATED: 11/12/2008

James Michael Sobolewski (See above for address) TERMINATED: 07/20/2007

Katherine Tebrock (See above for address) TERMINATED: 07/05/2007

Michelle L. Angus (See above for address) TERMINATED: 01/14/2008

Timothy John McDonough (See above for address) TERMINATED: 11/12/2008

William C. Kwong (See above for address) TERMINATED: 11/12/2008

Defendant CDCR

represented by Paul B Mello (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sally Anne Johnson (See above for address) LEAD ATTORNEY

Alberto S. Roldan , NCAED (See above for address) TERMINATED: 12/23/2008

Benjamin Terrence Rice (See above for address) TERMINATED: 12/23/2008

Cynthia Clarke Fritz (See above for address) TERMINATED: 11/12/2008

James Michael Sobolewski (See above for address) TERMINATED: 07/20/2007

Michelle L. Angus (See above for address) TERMINATED: 01/14/2008

Timothy John McDonough (See above for address) TERMINATED: 11/12/2008

William C. Kwong (See above for address) TERMINATED: 11/12/2008

Case: 2:06-cv-2042 As of: 07/19/2015 05:31 PM PDT 19 of 70

Defendant Division of Juvenile Justice

represented by Paul B Mello (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Benjamin Terrence Rice (See above for address) TERMINATED: 12/23/2008

Cynthia Clarke Fritz (See above for address) TERMINATED: 11/12/2008

James Michael Sobolewski (See above for address) TERMINATED: 07/20/2007

Katherine Tebrock (See above for address) TERMINATED: 07/05/2007

Michelle L. Angus (See above for address) TERMINATED: 01/14/2008

William C. Kwong (See above for address) TERMINATED: 11/12/2008

Defendant Board of Parole Hearings

represented by Paul B Mello (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alberto S. Roldan , NCAED (See above for address) TERMINATED: 12/23/2008

Benjamin Terrence Rice (See above for address) TERMINATED: 12/23/2008

Cynthia Clarke Fritz (See above for address) TERMINATED: 11/12/2008

James Michael Sobolewski (See above for address) TERMINATED: 07/20/2007

Michelle L. Angus (See above for address) TERMINATED: 01/14/2008

William C. Kwong (See above for address) TERMINATED: 11/12/2008

Defendant Joe Montes

represented by Paul B Mello (See above for address)

Case: 2:06-cv-2042 As of: 07/19/2015 05:31 PM PDT 20 of 70

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Benjamin Terrence Rice (See above for address) TERMINATED: 12/23/2008

James Michael Sobolewski (See above for address) TERMINATED: 07/20/2007

Michelle L. Angus (See above for address) TERMINATED: 01/14/2008

Defendant Juvenile Parole Board

represented by Paul B Mello (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sally Anne Johnson (See above for address) LEAD ATTORNEY

Alberto S. Roldan , NCAED (See above for address) TERMINATED: 12/23/2008

Cynthia Clarke Fritz (See above for address) TERMINATED: 11/12/2008

Timothy John McDonough (See above for address) TERMINATED: 11/12/2008

William C. Kwong (See above for address) TERMINATED: 11/12/2008

Defendant Askia Abdulmajeed

represented by Paul B Mello (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sally Anne Johnson (See above for address) LEAD ATTORNEY

Alberto S. Roldan , NCAED (See above for address) TERMINATED: 12/23/2008

Cynthia Clarke Fritz (See above for address) TERMINATED: 11/12/2008

Timothy John McDonough (See above for address) TERMINATED: 11/12/2008

William C. Kwong

Case: 2:06-cv-2042 As of: 07/19/2015 05:31 PM PDT 21 of 70

(See above for address) TERMINATED: 11/12/2008

Defendant Tomas Martinez

represented by Paul B Mello (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sally Anne Johnson (See above for address) LEAD ATTORNEY

Alberto S. Roldan , NCAED (See above for address) TERMINATED: 12/23/2008

Cynthia Clarke Fritz (See above for address) TERMINATED: 11/12/2008

Timothy John McDonough (See above for address) TERMINATED: 11/12/2008

William C. Kwong (See above for address) TERMINATED: 11/12/2008

Date Filed 09/13/2006 09/13/2006 09/13/2006 09/14/2006 09/14/2006
09/14/2006
09/14/2006 09/15/2006

# Docket Text
1 COMPLAINT for Declaratory and Injunctive Relief against Schwarzenegger et al by L.H. et al. Attorney Bien, Michael added.(Bien, Michael) Modified on 9/14/2006 (Caspar, M). (Entered: 09/13/2006)
2 CIVIL COVER SHEET by L.H., A.Z., D.K., and D.R. (Bien, Michael) (Entered: 09/13/2006)
3 NOTICE of RELATED CASE 94−0671 by L.H., A.Z., D.K., and D.R.. (Attachments: # 1 Exhibit A−B)(Bien, Michael) (Entered: 09/13/2006)
RECEIPT number 204 11984 for $350.00 for Civil Filing Fee from Gay Crosthwait Grunfeld. (Caspar, M) (Entered: 09/14/2006)
5 [DISREGARD] SUMMONS ISSUED as to *Arnold Schwarzenegger, James E Tilton, Kingston Bud Prunty, Bernard Warner, Dennis Dulay, John Monday, James Davis, Joyce Arredondo, Paul Chabot, Joseph Compton, Susan Melanson, Chuck Supple, CDCR, Division of Juvenile Justice, Board of Parole Hearings* with answer to complaint due within *20* days. Attorney *Michael W. Bien* *155 Montgomery Street* *Eighth Floor* *San Francisco, CA 94104*. (Caspar, M) Modified on 9/15/2006 (Caspar, M). (Entered: 09/14/2006)
6 CIVIL NEW CASE DOCUMENTS ISSUED; Initial Scheduling Conference set for 11/20/2006 at 09:00 AM in Courtroom 10 (GEB) before Judge Garland E. Burrell Jr. (Attachments: # 1 Consent Forms # 2 VDRP Forms) (Caspar, M) (Entered: 09/14/2006)
SERVICE BY MAIL: 6 Civil New Case Documents for GEB served on Carole B Shauffer and Donald Spector (Caspar, M) (Entered: 09/14/2006)
7 RELATED CASE ORDER signed by Judge Lawrence K. Karlton on 09/14/06 ORDERING that case 06cv2042 GEB DAD is related with member of case 94cv671 LKK GGH. Case 06cv2042 reassigned to Judge Lawrence K. Karlton and Gregory G. Hollows for all further proceedings. Judge Garland E. Burrell, Jr, Dale A. Drozd no longer assigned to case. Clerk to make appropriate adjustment in the assignment of

Case: 2:06-cv-2042 As of: 07/19/2015 05:31 PM PDT 22 of 70

09/15/2006 09/15/2006 09/15/2006
09/20/2006 09/20/2006 09/21/2006 09/25/2006 09/27/2006 10/03/2006 10/03/2006 10/04/2006
10/04/2006 10/10/2006 10/10/2006 10/16/2006 10/17/2006

civil cases to compensate for this reassignment.(Duong, D) (Entered: 09/15/2006)
SERVICE BY MAIL: 7 Order Reassigning Case served on Carole B Shauffer and Donald Spector−CAED NOT ADMITTED. (Duong, D) (Entered: 09/15/2006)
8 CLERK'S NOTICE of DOCKET CORRECTION: Please disregard 5 Summons as an error was made while docketing and the document was not attached. A new summons will be issued. (Caspar, M) (Entered: 09/15/2006)
9 SUMMONS ISSUED as to *Arnold Schwarzenegger, James E Tilton, Kingston Bud Prunty, Bernard Warner, Dennis Dulay, John Monday, James Davis, Joyce Arredondo, Paul Chabot, Joseph Compton, Susan Melanson, Chuck Supple, CDCR, Division of Juvenile Justice, Board of Parole Hearings* with answer to complaint due within *20* days. Attorney *Michael W. Bien* *155 Montgomery Street* *Eighth Floor* *San Francisco, CA 94104*. (Caspar, M) (Entered: 09/15/2006)
10 FIRST AMENDED COMPLAINT Declaratory and Injunctive Relief against all defendants by A.Z. (Bien, Michael) Modified on 9/21/2006 (Duong, D). (Entered: 09/20/2006)
12 MAIL RETURNED as RTS− Forwarding Order Expired as to 6 Civil New Case Documents for GEB. Mail sent to Carole B. Shauffer. (TEXT ONLY ENTRY) (Kirkpatrick, S) (Entered: 09/21/2006)
11 CERTIFICATE of SERVICE by A.Z., D.K., D.R., L.H. re 10 First Amended Complaint. (Bien, Michael) Modified on 9/21/2006 (Duong, D). (Entered: 09/21/2006)
13 MAIL RETURNED as "Not deliverable as addressed, unable to forward RTS" 7 Order Reassigning Case,. Mail sent to Carole B. Shauffer. (Mena−Sanchez, L) (Entered: 09/26/2006)
14 SUMMONS ISSUED as to *Joe Montes* with answer to complaint due within *20* days. Attorney *Michael Bien* *155 Montgomery* *8th Floor* *San Francisco, CA 94104*. (Caspar, M) (Entered: 09/27/2006)
15 RETURN SERVICE EXECUTED as to dft CA Dept of Corrections and Rehabilitation on 9/19/06 by plts re 10 Amended Complaint , Summons and Complaint. (Bien, Michael) Modified on 10/5/2006 (Duong, D). (Entered: 10/03/2006)
16 RETURN SERVICE EXECUTED as to Board Parole Hearings on 9/28/06 by plts re 10 Amended Complaint,Summons and Complaint. (Bien, Michael) Modified on 10/5/2006 (Duong, D). (Entered: 10/03/2006)
17 REQUEST for Extension of Time of 60 days, to and including 12/9/06, to File a Responsive Pleading; Declaration of Benjamin T. Rice by dfts Arnold Schwarzenegger, James E Tilton, Kingston Bud Prunty, Bernard Warner, CDCR. Attorney Rice, Benjamin Terrence added. (Attachments: # 1 Exhibit A# 2 Declaration of service by mail)(Rice, Benjamin) Modified on 10/5/2006 (Duong, D). (Entered: 10/04/2006)
18 PROPOSED ORDER re 17 Request for extension of time by Arnold Schwarzenegger, James E Tilton, Kingston Bud Prunty, Bernard Warner, CDCR. (Attachments: # 1 Declaration of service by mail)(Rice, Benjamin) Modified on 10/5/2006 (Duong, D). (Entered: 10/04/2006)
19 ORDER signed by Judge Lawrence K. Karlton on 10/06/06 re 18 ORDERING that dfts' request for an extension of time of 60 days, to and including 12/8/06 17 is GRANTED . (Duong, D) (Entered: 10/10/2006)
SERVICE BY MAIL: 19 Order served on Carole B Shauffer. (Duong, D) (Entered: 10/10/2006)
20 MAIL RETURNED as Undeliverable 19 Order. Mail sent to Carole B. Shauffer, 114 Sansome Street, Suite 900, San Francisco, CA 94104−3820. (Duong, D) (Entered: 10/17/2006)
21 RESERVICE OF DOCUMENTS: re 19 Order addressed to all parties. (Duong, D) (Entered: 10/17/2006)

Case: 2:06-cv-2042 As of: 07/19/2015 05:31 PM PDT 23 of 70

10/17/2006 10/20/2006 11/07/2006 11/08/2006
11/08/2006 11/14/2006
12/08/2006
12/08/2006 12/08/2006 01/17/2007 01/17/2007
01/22/2007 01/23/2007 01/23/2007 01/23/2007

SERVICE BY MAIL: 19 Order served on Carole B Shauffer. (Duong, D) (Entered: 10/17/2006)
22 NOTICE of CHANGE of ADDRESS by Michael Bien. (Bien, Michael) (Entered: 10/20/2006)
23 STIPULATION and PROPOSED Protective Order Protecting Confidentiality and Prohibiting Retaliation [Local Rule 39−140] by dfts. Attorney Rice, Benjamin Terrence added. (Rice, Benjamin) Modified on 11/8/2006 (Matson, R). Modified on 11/14/2006 (Duong, D). (Entered: 11/07/2006)
24 AMENDED DOCUMENT re 23 Stipulation and Proposed Order by Joe Montes, A.Z., D.K., D.R., Schwarzenegger, Tilton, Prunty, Bernard Warner, Dulay, Monday, Davis, Arredondo, Chabot, Compton, Melanson, Supple, CDCR, Division of Juvenile Justice, Board of Parole Hearings, & L.H. (Rice, Benjamin) Modified on 11/9/2006 (Brown, T). (Entered: 11/08/2006)
25 NOTICE of CHANGE of ADDRESS by Michael Bien. (Bien, Michael) (Entered: 11/08/2006)
26 STIPULATION and PROTECTIVE ORDER signed by Judge Lawrence K. Karlton on 11/13/06 re 23 ORDERING that plts' and class members' true names and/or Youth Authority numbers will be disclosed only to the listed persons in paragraph 2. Any documents containing plts' or class−memebers' true names and/or Youth Authority numbers filed with the court shall be filed under seal. (See Order for details). (Duong, D) (Entered: 11/14/2006)
27 NOTICE of Motion and MOTION to DISMISS AND MOTION TO STRIKE allegations by dfts. Memorandum of Points and Authorities in support . Attorney Sobolewski, James Michael added. Motion Hearing set for 2/20/2007 at 10:00 AM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. (Sobolewski, James) Modified on 12/11/2006 (Duong, D). (Entered: 12/08/2006)
28 DECLARATION of Danni Lam in SUPPORT OF re 27 MOTION to DISMISS AND MOTION TO STRIKE Allegations.(Sobolewski, James) Modified on 12/11/2006 (Duong, D). (Entered: 12/08/2006)
29 REQUEST for JUDICIAL NOTICE by dfts (Attachments: # 1 Exhibit A# 2 Exhibit B Part 1 of 2# 3 Exhibit B Part 2 of 2# 4 Exhibit C Part 1 of 2# 5 Exhibit C Part 2 of 2# 6 Exhibit D# 7 Exhibit E)(Sobolewski, James) Modified on 12/11/2006 (Duong, D). (Entered: 12/08/2006)
30 Joint Proposed Discovery Plan Pursuant to FRCP 26(f) by Plaintiffs A.Z., D.K., D.R., L.H.. (Lang, Meghan) Modified on 1/18/2007 (Brown, T). (Entered: 01/17/2007)
31 MOTION to Permit Use of Plaintiffs' Full Names re 26 Protective Order, by Arnold Schwarzenegger, James E. Tilton, Kingston Bud Prunty, Bernard Warner, Dennis Dulay, John Monday, James Davis, Joyce Arredondo, Paul Chabot, Joseph Compton, Susan Melanson, Chuck Supple, CDCR, Division of Juvenile Justice, & Board of Parole Hearings. Motion Hearing set for 2/20/2007 at 10:00 AM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. (Attachments: # 1 Exhibit A to B)(Sobolewski, James) Modified on 1/18/2007 (Brown, T). (Entered: 01/17/2007)
32 REQUEST for an order to schedule a scheduling conference by plts. (rrLang, Meghan) Modified on 1/23/2007 (Duong, D). (Entered: 01/22/2007)
33 MOTION for CLASS CERTIFICATION by plts. Motion Hearing set for 2/20/2007 at 10:00 AM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. (Kennard, Karen) Modified on 1/24/2007 (Duong, D). (Entered: 01/23/2007)
34 MEMORANDUM of Points and Authorities in support of plts' Motion for CLASS CERTIFICATION 36 . (Kennard, Karen) Modified on 1/24/2007 (Duong, D). (Entered: 01/23/2007)
35 DECLARATION of Karen Kennard in SUPPORT OF re 33 Motion for CLASS CERTIFICATION. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E)(Kennard, Karen) Modified on 1/24/2007 (Duong, D). (Entered: 01/23/2007)

Case: 2:06-cv-2042 As of: 07/19/2015 05:31 PM PDT 24 of 70

01/23/2007 01/23/2007 01/25/2007
02/06/2007 02/06/2007 02/06/2007 02/06/2007 02/06/2007 02/06/2007 02/06/2007
02/07/2007
02/07/2007 02/15/2007 02/15/2007 02/15/2007 02/15/2007 02/15/2007 02/15/2007

36 PROPOSED ORDER re 33 Motion for CLASS CERTIFICATION. (Kennard, Karen) Modified on 1/24/2007 (Duong, D). (Entered: 01/23/2007)
37 CERTIFICATE of SERVICE by plts re 33 MOTION for CLASS CERTIFICATION. (Kennard, Karen) Modified on 1/24/2007 (Duong, D). (Entered: 01/23/2007)
38 ORDER signed by Judge Lawrence K. Karlton on 01/24/07 re 32 ORDERING that accordingly, a Scheduling Conference is SET for 2/23/2007 at 10:00 AM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. (Duong, D) (Entered: 01/25/2007)
39 MEMORANDUM/RESPONSE in OPPOSITION to 31 Motion to Permit Use of Plaintiffs' Full Names. (Grunfeld, Gay) Modified on 2/7/2007 (Engbretson, K.). (Entered: 02/06/2007)
40 DECLARATION of Gay Crosthwait Grunfeld in OPPOSITION TO 31 Motion to Permit Use of Plaintiffs' Full Names. (Attachments: # 1 Exhibits A−F) (Grunfeld, Gay) Modified on 2/7/2007 (Engbretson, K.). (Entered: 02/06/2007)
41 DECLARATION of Sara Norman in OPPOSITION TO 31 Motion to Permit Use of Plaintiffs' Full Names. (Attachments: # 1 Exhibits A−B) (Grunfeld, Gay) Modified on 2/7/2007 (Engbretson, K.). (Entered: 02/06/2007)
42 DECLARATION of D.K. in OPPOSITION TO 31 Motion to Permit Use of Plaintiffs' Full Names. (Grunfeld, Gay) Modified on 2/7/2007 (Engbretson, K.). (Entered: 02/06/2007)
43 RESPONSE in OPPOSITION to 27 Motion to Dismiss and Motion to Strike Allegations. Attorney Morgan, Briana Lynn added. (Attachments: # 1 Exhibit 1)(Morgan, Briana) Modified on 2/7/2007 (Engbretson, K.). (Entered: 02/06/2007)
44 CERTIFICATE of SERVICE (Service Via Hand Delivery) re 43 Response in Opposition to Motion by Plaintiffs. (Morgan, Briana) Modified on 2/7/2007 (Engbretson, K.). (Entered: 02/06/2007)
45 MEMORANDUM/RESPONSE in OPPOSITION to 33 Motion for Class Certification. (Attachments: # 1 Declaration of James Sobolewski # 2 Declaration of Hunter # 3 Exhibits A−C to Sobolewski Declaration)(Sobolewski, James) Modified on 2/7/2007 (Engbretson, K.). Modified on 2/14/2007 (Brown, T). (Entered: 02/06/2007)
46 MINUTE ORDER re 31 Motion to Permit Use of Plaintiffs' Full Names, 33 Motion to Certify Class, and 27 Motion to Dismiss and Motion to Strike Allegations. The parties are hereby notified that the hearing on the Motions, currently scheduled for 02/20/2007, is CONTINUED TO 2/23/2007 at 10:00 AM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. (Text Only)(Rivas, A) (Entered: 02/07/2007)
47 CERTIFICATE of SERVICE by A.Z., D.K., D.R., L.H.. (Grunfeld, Gay) (Entered: 02/07/2007)
48 MOTION to SEAL the Reply Declaration of Gay Crosthwait Grunfeld by A.Z., D.K., D.R., L.H.. Motion Hearing set for 2/23/2007 at 10:00 AM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. (Grunfeld, Gay) (Entered: 02/15/2007)
DOC #49: STRICKEN PURSUANT TO ORDER DATED 2/22/07. (Entered: 02/15/2007)
50 PROPOSED ORDER by A.Z., D.K., D.R., L.H.. (Grunfeld, Gay) (Entered: 02/15/2007)
51 NOTICE by all plaintiffs re 49 . Notice of Inadvertent Filing and Request for Removal of Declaration Inadvertently Filed (Grunfeld, Gay) (Entered: 02/15/2007)
52 PROPOSED ORDER re 49 by A.Z., D.K., D.R., L.H.. (Grunfeld, Gay) (Entered: 02/15/2007)
53 REPLY to RESPONSE to MOTION re 33 MOTION for CLASS CERTIFICATION. (Palumbo, Kristen) (Entered: 02/15/2007)

Case: 2:06-cv-2042 As of: 07/19/2015 05:31 PM PDT 25 of 70

02/15/2007 02/16/2007 02/20/2007 02/20/2007 02/22/2007 02/22/2007 02/23/2007 02/23/2007 02/23/2007
02/23/2007
02/28/2007
02/28/2007 03/05/2007 03/05/2007 03/14/2007

54 DECLARATION of Kristen Palumbo in SUPPORT OF re 33 MOTION for CLASS CERTIFICATION. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D)(Palumbo, Kristen) (Entered: 02/15/2007)
55 REPLY to RESPONSE to MOTION. Defendants' Reply to Plaintiffs' Opposition to Motion to Dismiss Motion to Dismiss and Motion to Strike (Sobolewski, James) (Entered: 02/16/2007)
56 REPLY to RESPONSE to MOTION re 31 MOTION to Permit Use of Plaintiffs' Full Names. (Sobolewski, James) (Entered: 02/20/2007)
57 DECLARATION of James M. Sobolewski. in Support of Reply to Plaintiffs' Opposition to Defendants' Motion to Permit Use of Plaintiffs' Full Names (Sobolewski, James) (Entered: 02/20/2007)
58 ORDER signed by Judge Lawrence K. Karlton on 2/21/07: Declaration inadvertently filed in connection with Plaintiffs' Motion for Class Certification, document # 49 in the docket of the above−captioned case, shall be stricken from the docket. (Kaminski, H) (Entered: 02/22/2007)
59 PROPOSED ORDER Setting Trial and Pre−Trial Dates by A.Z., D.K., D.R., L.H.. (Grunfeld, Gay) (Entered: 02/22/2007)
60 ORDER signed by Judge Lawrence K. Karlton on 2/23/07 ORDERING that the Declaration of Gay Crosthwait Grunfeld In Support of Motion for Class Certification and Motion to Seal, shall be filed under seal by the Clerk of the Court and made available only to the Court or counsel. (Engbretson, K.) (Entered: 02/23/2007)
61 SEALED EVENT (Engbretson, K.) (Entered: 02/23/2007)
62 MINUTES (Text Only) for proceedings held before Judge Lawrence K. Karlton: MOTION HEARING held on 2/23/2007 re 31 MOTION to Permit Use of Plaintiffs' Full Names; 33 MOTION for CLASS CERTIFICATION filed by L.H.; 27 MOTION to DISMISS AND MOTION TO STRIKE Allegations. After oral argument, the motion to Permit use of Plaintiff's full name is DENIED. Motion to Dismiss and Motion to Certify are SUBMITTED. Court to issue an order. Plaintiffs Counsel Gay Grosthwait Grunfeld, Briana Lynn Morgan, Michael Bien present. Defendants Counsel James Sobolewski present. Court Reporter: C. Bodene. (Rivas, A) (Entered: 02/23/2007)
63 MINUTES (Text Only) for proceedings held before Judge Lawrence K. Karlton: SCHEDULING CONFERENCE held on 2/23/2007. Final Pretrial Conference set for 6/30/2008 at 01:30 PM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. 10 day Bench Trial set for 9/30/2008 at 10:30 AM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. Court Order to follow. Plaintiffs Counsel Gay Grosthwait Grunfeld, Briana Lynn Morgan, Michael Bien present. Defendants Counsel James Sobolewski present. (Rivas, A) (Entered: 02/23/2007)
64 SCHEDULING ORDER signed by Judge Lawrence K. Karlton on 02/27/07: Discovery ddl 1/31/2008. Dispositive Hearing Motion ddl 3/30/2008. Final Pretrial Conference set for 6/30/2008 at 01:30 PM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. Bench Trial set for 9/30/2008 at 10:30 AM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. (Duong, D) (Entered: 02/28/2007)
65 ORDER signed by Judge Lawrence K. Karlton on 02/28/07 ORDERING that Defendants' Motion to Dismiss and or Strike 27 is DENIED. Defendants' Motion to use Plaintiffs' Full Names 31 is DENIED. Plaintiffs' Motion for Class Certification 33 is GRANTED. (Duong, D) (Entered: 02/28/2007)
66 NOTICE of APPEARANCE by Maria V. Morris on behalf of A.Z., D.K., D.R., L.H.. Attorney Morris, Maria V. added. (Morris, Maria) (Entered: 03/05/2007)
67 NOTICE of APPEARANCE by Sarah Laubach on behalf of A.Z., D.K., D.R., L.H.. Attorney Laubach, Sarah added. (Laubach, Sarah) (Entered: 03/05/2007)
68 MOTION for PROTECTIVE ORDER by A.Z., D.K., D.R., L.H.. Motion Hearing set for 4/5/2007 at 10:00 AM in Courtroom 24 (GGH) before Magistrate Judge Gregory G. Hollows. (Morris, Maria) (Entered: 03/14/2007)

Case: 2:06-cv-2042 As of: 07/19/2015 05:31 PM PDT 26 of 70

03/22/2007 03/22/2007
03/23/2007 03/27/2007 03/29/2007 03/29/2007
03/29/2007
03/29/2007 03/30/2007 03/30/2007 03/30/2007 04/02/2007
04/02/2007 04/10/2007 04/10/2007

69 MOTION to COMPEL Production of Documents by A.Z., D.K., D.R., L.H.. Motion Hearing set for 4/19/2007 at 10:00 AM in Courtroom 24 (GGH) before Magistrate Judge Gregory G. Hollows. (Grunfeld, Gay) (Entered: 03/22/2007)
70 [DISREGARD − DOCUMENT NOT SIGNED] Defendants' ANSWER to FIRST AMENDED COMPLAINT by Joe Montes, Arnold Schwarzenegger, James E. Tilton, Kingston Bud Prunty, Bernard Warner, Dennis Dulay, John Monday, James Davis, Joyce Arredondo, Paul Chabot, Joseph Compton, Susan Melanson, Chuck Supple, CDCR, Division of Juvenile Justice, Board of Parole Hearings. Attorney Sobolewski, James Michael added.(Sobolewski, James) Modified on 3/23/2007 (Marciel, M). (Entered: 03/22/2007)
71 AMENDED ANSWER to < First Amended Civil Class Action Complaint by dfts . (Sobolewski, James) Modified on 3/23/2007 (Duong, D). (Entered: 03/23/2007)
72 ORDER signed by Judge Gregory G. Hollows on 3/27/07 ORDERING that the deadline for filing the joint scheduling statement is 4/12/07. (Donati, J) (Entered: 03/27/2007)
73 MOTION to COMPEL Inspection by A.Z., D.K., D.R., L.H.. Motion Hearing set for 4/19/2007 at 10:00 AM in Courtroom 24 (GGH) before Magistrate Judge Gregory G. Hollows. (Attachments: # 1 Exhibit A# 2 Exhibit B)(Morgan, Briana) (Entered: 03/29/2007)
74 REQUEST for EXTENSION OF TIME TO RESPOND TO PLAINTIFFS' FIRST SET OF DISCOVERY REQUESTS; DECLARATION OF JAMES M. SOBOLEWSKI by Arnold Schwarzenegger, James E. Tilton, Kingston Bud Prunty, Bernard Warner, John Monday, Susan Melanson, Chuck Supple, CDCR, Division of Juvenile Justice, Board of Parole Hearings. (Attachments: # 1 Exhibit A)(Sobolewski, James) (Entered: 03/29/2007)
75 PROPOSED ORDER Granting Defendants' Request for Extension of Time to Respond to Plaintiffs' First Set of Discovery Requests re 74 Request − ATY, by Joe Montes, Arnold Schwarzenegger, James E. Tilton, Bernard Warner, Susan Melanson, Chuck Supple, CDCR, Division of Juvenile Justice, Board of Parole Hearings. (Sobolewski, James) (Entered: 03/29/2007)
76 MOTION to COMPEL Deposition of John Monday by A.Z., D.K., D.R., L.H.. Motion Hearing set for 4/19/2007 at 10:00 AM in Courtroom 24 (GGH) before Magistrate Judge Gregory G. Hollows. (Grunfeld, Gay) (Entered: 03/29/2007)
77 OPPOSITION to Dfts' 74 REQUEST for an Extension of Time, by A.Z., D.K., D.R., L.H. (Morris, Maria) Modified on 4/2/2007 (Brown, T). (Entered: 03/30/2007)
78 DECLARATION of Gay Crosthwait Grunfeld in OPPOSITION to dfts' 74 Request for an Extension of Time (Attachments: # 1 Exhibit 1−3)(Grunfeld, Gay) Modified on 4/2/2007 (Brown, T). (Entered: 03/30/2007)
79 STIPULATION and PROPOSED ORDER Continuing Hearing on 68 Motion to Compel Entry of a Protective Order by A.Z., D.K., D.R., & L.H. (Morris, Maria) Modified on 4/2/2007 (Brown, T). (Entered: 03/30/2007)
80 STIPULATION and ORDER signed by Judge Gregory G. Hollows on 4/2/07 AGREEING to the stipulation between the parties to continue the hearing on 68 Motion to Compel Entry of a Protective Order: Motion Hearing RESET for 4/19/2007 at 10:00 AM in Courtroom 24 (GGH) before Magistrate Judge Gregory G. Hollows. (Yin, K) (Entered: 04/02/2007)
81 ORDER signed by Judge Gregory G. Hollows on 4/2/07 DENYING 74 Request for Extension of Time. Defendants shall produce the responses as ordered herein.(Donati, J) (Entered: 04/02/2007)
82 DESIGNATION of COUNSEL FOR SERVICE. Added attorney Michelle Leigh Angus for dfts.(Angus, Michelle) Modified on 4/11/2007 (Duong, D). (Entered: 04/10/2007)
83 NOTICE of Addition of Counsel for serivce by dfts. Attorney Nelson, Katherine Kylin added. (Nelson, Katherine) Modified on 4/11/2007 (Duong, D). (Entered: 04/10/2007)

Case: 2:06-cv-2042 As of: 07/19/2015 05:31 PM PDT 27 of 70

04/11/2007
04/12/2007 04/17/2007
04/17/2007 04/19/2007
04/19/2007 04/19/2007 04/19/2007 04/19/2007 04/19/2007 04/19/2007 04/19/2007 04/19/2007 04/20/2007 04/23/2007 04/23/2007

84 STIPULATION and PROPOSED ORDER Continuing April 19, 2007 Hearing on Discovery Motions re 73 MOTION to COMPEL Inspection, 69 MOTION to COMPEL Production of Documents, 68 MOTION for PROTECTIVE ORDER by Joe Montes, A.Z., D.K., D.R., Arnold Schwarzenegger, James E. Tilton, Kingston Bud Prunty, Bernard Warner, Dennis Dulay, John Monday, James Davis, Joyce Arredondo, Paul Chabot, Joseph Compton, Susan Melanson, Chuck Supple, CDCR, Division of Juvenile Justice, Board of Parole Hearings, L.H.. (Morgan, Briana) (Entered: 04/11/2007)
85 STIPULATION and PROPOSED ORDER re Deposition of dft John Monday by plts (Morris, Maria) Modified on 4/13/2007 (Duong, D). (Entered: 04/12/2007)
86 STIPULATION and ORDER signed by Judge Gregory G. Hollows on 4/17/07 ORDERING the MOTION HEARINGS as to 73 Motion to Compel, 69 Motion to Compel and 68 Motion for Protective Order are RESET for 4/26/2007 at 10:00 AM in Courtroom 24 (GGH) before Magistrate Judge Gregory G. Hollows. All joint status conference statements are due by 4/19/07. (Donati, J) Modified on 4/17/2007 (Donati, J). (Entered: 04/17/2007)
87 STIPULATION and ORDER signed by Judge Gregory G. Hollows on 4/17/07 ORDERING the deposition of John Monday. Plaintiffs 76 Motion to Compel Deposition of John Monday is WITHDRAWN. (Donati, J) (Entered: 04/17/2007)
88 DECLARATION of Michelle L. Angus in Support of Joint Statement of Discovery Disagreement Re: Motion to Compel Production of Documents 69 . (Attachments: # 1 Exhibit A−D# 2 Exhibit E# 3 Exhibit F−G# 4 Declaration of John Monday in Support of Deliberate Process Privilege# 5 Declaration of Bernard Warner in Support of Deliberate Process Privilege)(Sobolewski, James) Modified on 4/20/2007 (Duong, D). (Entered: 04/19/2007)
89 MOTION to COMPEL Compliance with the Court's April 2, 2007 Order 81 by plts. Motion Hearing set for 5/10/2007 at 10:00 AM in Courtroom 24 (GGH) before Magistrate Judge Gregory G. Hollows. (Morris, Maria) Modified on 4/20/2007 (Duong, D). (Entered: 04/19/2007)
90 LETTER to Court requesting for a discovery conference by plts. (Morris, Maria) Modified on 4/20/2007 (Duong, D). (Entered: 04/19/2007)
91 DECLARATION of Maria V. Morris in Support of re 68 MOTION for PROTECTIVE ORDER. (Attachments: # 1 Exhibit A−D# 2 Exhibit E−J)(Morris, Maria) Modified on 4/20/2007 (Duong, D). (Entered: 04/19/2007)
92 JOINT STATEMENT re Discovery Dispute on Motion to compel entry of a Protective Order 68 . (Morris, Maria) Modified on 4/20/2007 (Duong, D). (Entered: 04/19/2007)
93 PROPOSED PROTECTIVE ORDER re Confidentiality of Personal Information and Security Information. (Morris, Maria) Modified on 4/20/2007 (Duong, D). (Entered: 04/19/2007)
94 DECLARATION of Sarah Laubach in Support Of re 69 MOTION to COMPEL Production of Documents . (Attachments: # 1 Exhibit A−I# 2 Exhibit J−P)(Laubach, Sarah) Modified on 4/20/2007 (Duong, D). (Entered: 04/19/2007)
95 PROPOSED ORDER Granting 69 MOTION to COMPEL Production of Documents by plts (Laubach, Sarah) Modified on 4/20/2007 (Duong, D). (Entered: 04/19/2007)
96 JOINT STATEMENT re plts' 69 MOTION to COMPEL Production of Documents. (Laubach, Sarah) Modified on 4/20/2007 (Duong, D). (Entered: 04/19/2007)
97 JOINT STIPULATION and PROPOSED ORDER re Request for Inspection. (Morgan, Briana) Modified on 4/23/2007 (Duong, D). (Entered: 04/20/2007)
98 STIPULATION and ORDER signed by Judge Gregory G. Hollows on 4/23/07 re: Request for Inspection. (Donati, J) (Entered: 04/23/2007)
99 TRANSCRIPT of Oral Argument re Motion to Dismiss and Trike Allegations, Permit use of full names, Certify Class held on 02/23/07 before Judge Lawrence K. Karlton. Court Reporter: C. Bodene. (TEXT ONLY) (Duong, D) (Entered: 04/24/2007)

Case: 2:06-cv-2042 As of: 07/19/2015 05:31 PM PDT 28 of 70

04/25/2007 04/26/2007
04/30/2007
04/30/2007 04/30/2007 05/03/2007
05/03/2007 05/04/2007 05/07/2007 05/09/2007 05/10/2007 05/10/2007 05/10/2007 05/10/2007 05/14/2007

100 ORDER signed by Judge Gregory G. Hollows on 4/25/07 ORDERING that the filing deadline for the joint statement is 5/3/07.(Donati, J) (Entered: 04/25/2007)
101 MINUTES (Text Only) for proceedings held before Judge Gregory G. Hollows : MOTION HEARING held on 4/26/2007. Plaintiff's Motion to Compel Production of Documents and Motion for Protective Order are submitted. The court instructs the parties to meet and confer in order to resolve the Motion scheduled on 5/10/2007. If the parties resolve the matter, the motion shall be vacated from calendar. Plaintiffs Counsel Gay C. Grunfeld, Sarah M. Laubach & Maria V. Morris present. Defendants Counsel Michelle l. Angus and Stephen P. Acquisto present. Court Reporter/CD Number: 1 of 1. (Callen, V) (Entered: 04/26/2007)
102 REQUEST for Letter/Request(s) re: Protective Order by Arnold Schwarzenegger, James E. Tilton, Kingston Bud Prunty, Bernard Warner, Dennis Dulay, John Monday, James Davis, Joyce Arredondo, Paul Chabot, Joseph Compton, Susan Melanson, Chuck Supple, CDCR, Division of Juvenile Justice, Board of Parole Hearings. Attorney Angus, Michelle Leigh added. (Angus, Michelle) (Entered: 04/30/2007)
103 REQUEST for for Entry of a Protective Order by A.Z., D.K., D.R., L.H.. (Morris, Maria) (Entered: 04/30/2007)
104 PROPOSED ORDER Proposed Protective Order re 103 Request − ATY by A.Z., D.K., D.R., L.H.. (Morris, Maria) (Entered: 04/30/2007)
105 MINUTE ORDER: The parties have now submitted comments in response to the court's proposed protective order, as addressed at the April 26, 2007 hearing. In addition, defendants stated their intent to produce confidential documents this week for which they seek a protective order. Accordingly, IT IS ORDERED that any documents produced prior to the court's issuance of a written protective order shall not be disclosed to anyone except counsel of record and their legal staff, approved by Judge Gregory G. Hollows on 05/03/2007. (Eichhorn, D) (Entered: 05/03/2007)
106 STIPULATION and PROPOSED ORDER Re Continuing Hearing on Motion to Compel Compliance with The Court's April 2, 2007 Order re 81 Order, Terminate Motions − O by A.Z., D.K., D.R., L.H.. (Morris, Maria) (Entered: 05/03/2007)
107 TRANSCRIPT of Motion Hearing re: Plaintiff's Motion to Compel and for Protective Order held on 4/26/2007 before the Honorable Gregory G. Hollows. (TEXT ONLY − Maintained on Paper) (Schultz, C) (Entered: 05/07/2007)
108 STIPULATION and ORDER signed by Judge Gregory G. Hollows on 5/7/07 ORDERING the 89 Motion to Compel Hearing is RESET for 5/17/2007 at 10:00 AM in Courtroom 24 (GGH) before Magistrate Judge Gregory G. Hollows. (Donati, J) (Entered: 05/07/2007)
109 DESIGNATION of COUNSEL FOR SERVICE. Added attorney Geoffrey Thomas Holtz and Geoffrey Thomas Holtz for plts and attorney Karen Kennard terminated. (Holtz, Geoffrey) Modified on 5/10/2007 (Duong, D). (Entered: 05/09/2007)
110 DECLARATION of James Sobolewski in Support of Joint Statement of Discovery Dispute 111 Over Motion to Compel Compliance With the Court's April 2, 2007 Order 89 (Attachments: # 1 Declaration of Shannon Lowe)(Nelson, Katherine) Modified on 5/11/2007 (Duong, D). Modified on 5/11/2007 (Duong, D). (Entered: 05/10/2007)
111 JOINT STATEMENT re Discovery Dispute re Motion to Compel Compliance with the Court's April 2, 2007 Order 89 . (Morris, Maria) Modified on 5/11/2007 (Duong, D). (Entered: 05/10/2007)
112 DECLARATION of Maria V. Morris in SUPPORT OF re 89 MOTION to COMPEL Compliance with the Court's April 2, 2007 Order. (Attachments: # 1 Exhibit A−D# 2 Exhibit E−G1# 3 Exhibit G2−S)(Morris, Maria) (Entered: 05/10/2007)
113 PROPOSED ORDER Granting plt's Motion to Compel 89 . (Morris, Maria) Modified on 5/11/2007 (Duong, D). (Entered: 05/10/2007)
114 PROTECTIVE ORDER re 68 Motion for Protective Order signed by Judge Gregory G. Hollows on 05/14/2007. This Protective order shall be binding on the parties as of the date it is entered by the Court and supersedes the minute order filed on May 3, 2007 105 . The provisions of this Order shall remain in full force and effect until

Case: 2:06-cv-2042 As of: 07/19/2015 05:31 PM PDT 29 of 70

05/17/2007
05/21/2007
05/21/2007
05/21/2007
05/25/2007 05/25/2007 05/31/2007 06/04/2007 06/08/2007 06/11/2007 06/11/2007 06/11/2007

further order of this Court. (Duong, D) Modified on 5/17/2007 (Donati, J). (Entered: 05/14/2007)
115 MINUTES (Text Only) for proceedings held before Judge Gregory G. Hollows : MOTION HEARING held on 5/17/2007 re 89 MOTION to COMPEL Compliance with the Court's April 2, 2007 Order filed by L.H.,, A.Z.,, D.K.,, D.R.,. The Court instructs the Defendants to file a pleading within two days on how they intend to resolve this matter. The court also informs the parties that everything relating to discover shall be resolved within thirty days. The motion are granted in part and denied in part. The court will issue an order. Plaintiffs Counsel Maria Morris present. Defendants Counsel Michelle L. Angus, Stephen Auisto and Katherine Nelson present. Court Reporter/CD Number: 1 of 1. (Callen, V) (Entered: 05/17/2007)
116 ORDER signed by Judge Gregory G. Hollows on 5/21/07 ORDERING that Pltfs' 89 Motion to Compel Compliance with this court's 4/2/07 Order is GRANTED IN PART and DENIED IN PART. Dfts shall file a schedule for production of outstanding discovery within two days of the 5/17/07 hearing. Dfts shall produce all outstanding discovery within 30 days of the 5/17/07 hearing. (Engbretson, K.) (Entered: 05/21/2007)
117 ORDER signed by Judge Gregory G. Hollows on 5/21/2007 ORDERING Pltf's Motion to compel compliance with this court's 4/2/07 order, filed 4/19/07 95 is GRANTED in PART AND DENIED in PART 69 , 73 . Dfts shall file a schedule for production of outstanding discovery within 2 days of the 5/17/07 hearing. Dfts shall produce all outstanding discovery, including electronic discovery, within 30 days of the 5/17/07 hearing. (Reader, L) (Entered: 05/21/2007)
118 REPLY/RESPONSE to (Court's May 17, 2007 Order) Defendants' Schedule for Production of Outstanding Discovery and Request for Discovery Conference for Electronic Discovery by Joe Montes, Arnold Schwarzenegger, James E. Tilton, Kingston Bud Prunty, Bernard Warner, Dennis Dulay, John Monday, James Davis, Joyce Arredondo, Paul Chabot, Joseph Compton, Susan Melanson, Chuck Supple, CDCR, Division of Juvenile Justice, Board of Parole Hearings re 117 Order on Motion to Compel,, Order on Motion for Discovery,,,. Attorney Angus, Michelle Leigh added. (Angus, Michelle) (Entered: 05/21/2007)
119 ORDER signed by Judge Gregory G. Hollows on 5/25/07: Plaintiffs' motion to compel production of documents, filed March 22, 2007, is denied 69 .(Kaminski, H) (Entered: 05/25/2007)
120 NOTICE of APPEARANCE by William C. Kwong on behalf of Arnold Schwarzenegger, James E. Tilton, Kingston Bud Prunty, Bernard Warner, Dennis Dulay, John Monday, James Davis, Joyce Arredondo, Paul Chabot, Joseph Compton, Susan Melanson, Chuck Supple. Attorney Kwong, William C. added. (Kwong, William) (Entered: 05/25/2007)
121 STIPULATION and PROPOSED ORDER Re Providing Notice of Class Certification by A.Z., D.K., D.R., L.H.. (Attachments: # 1 Exhibit A)(Laubach, Sarah) (Entered: 05/31/2007)
122 STIPULATION and ORDER signed by Judge Lawrence K. Karlton on 6/4/07 re: Providing Notice of Class Certification. (Donati, J) (Entered: 06/04/2007)
123 STIPULATION and PROPOSED ORDER Regarding Treatment of Confidential Documents by A.Z., D.K., D.R., L.H.. (Morris, Maria) (Entered: 06/08/2007)
124 REQUEST for Reconsideration by the District Court of Magistrate Judge's Ruling re Motion to Compel Production of Documents by A.Z., D.K., D.R., L.H.. (Laubach, Sarah) (Entered: 06/11/2007)
125 DECLARATION of Sarah Laubach in Support of re 124 Request − ATY. for Reconsideration by the District Court of Magistrate Judge's Ruling re Motion to Compel, and Exhibits 1−2 (Attachments: # 1 Exhibit 3−4E# 2 Exhibit 4F−4I# 3 Exhibit 4J# 4 Exhibit 4K−4P# 5 Exhibit 5−6# 6 Exhibit 7−11)(Laubach, Sarah) (Entered: 06/11/2007)
126 PROPOSED ORDER re Request for Reconsideration by the District Court of Magistrate Judge's Ruling re 124 Request − ATY by A.Z., D.K., D.R., L.H.. (Laubach,

Case: 2:06-cv-2042 As of: 07/19/2015 05:31 PM PDT 30 of 70

06/12/2007 06/15/2007 06/15/2007 06/15/2007 06/18/2007 06/18/2007 06/18/2007 06/19/2007
06/20/2007 06/27/2007 07/02/2007
07/02/2007 07/02/2007 07/02/2007 07/02/2007 07/02/2007

Sarah) (Entered: 06/11/2007)
127 STIPULATION and ORDER regarding the treatment of confidential documents signed by Judge Gregory G. Hollows on 06/12/07. (Manzer, C) (Entered: 06/12/2007)
128 REQUEST for Extension of Time to Respond to Comply With the Court's Order Dated May 21, 2007 117 by dfts . Attorney Kwong, William C. added. (Kwong, William) Modified on 6/18/2007 (Duong, D). (Entered: 06/15/2007)
129 DECLARATION of William C. Kwong In Support of Defendants' Request 128 for Extension of Time to Comply With the Court's Order Dated May 21, 2007 (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C)(Kwong, William) Modified on 6/18/2007 (Duong, D). (Entered: 06/15/2007)
130 PROPOSED ORDER Granting Defendants' Request for Extension of Time to Comply With the Court's Order Dated May 21, 2007 117 . (Kwong, William) Modified on 6/18/2007 (Duong, D). (Entered: 06/15/2007)
131 OBJECTIONS by Plaintiffs A.Z., D.K., D.R., L.H. to 128 Request for Extension of Time (Morris, Maria) Modified on 6/19/2007 (Reader, L). (Entered: 06/18/2007)
132 PROPOSED ORDER Granting Defendants' Request for Extension of Time re 131 Objections, 128 Request − ATY, by A.Z., D.K., D.R., L.H.. (Morris, Maria) (Entered: 06/18/2007)
133 DEFENDANT(S) STATUS REPORT by Arnold Schwarzenegger, James E. Tilton, Kingston Bud Prunty, Bernard Warner, Dennis Dulay, John Monday, James Davis, Joyce Arredondo, Paul Chabot, Joseph Compton, Susan Melanson, Chuck Supple. (Angus, Michelle) (Entered: 06/18/2007)
134 ORDER signed by Judge Gregory G. Hollows on 06/19/07 re 128 ORDERING that Defendants shall have until June 25, 2007 to comply with this court's May 21, order 117 , and produce all outstanding discovery. Defendants' schedule for production of outstanding, filed May 21, 2007, is approved only insofar as it complies with the May 21, 2007 order. Defendants' request for a discovery conference regarding electronic discovery is granted as set forth above. (Duong, D) (Entered: 06/19/2007)
135 OPPOSITION by dfts to Plaintiffs' Request for Reconsideration 124 by the District Court of Magistrate Judge's Ruling re: Motion to Compel Production of Documents. (Kwong, William) Modified on 6/21/2007 (Duong, D). (Entered: 06/20/2007)
136 STIPULATION and PROPOSED ORDER re Scheduling Meet and Confer Over Observation and Videotaping of Proceedings re 98 Stipulation and Order by A.Z., D.K., D.R., L.H.. (Morris, Maria) (Entered: 06/27/2007)
137 STIPULATION and ORDER re Scheduling Meet and Confer over Observation and Videotaping of Proceedings signed by Judge Gregory G. Hollows on 07/02/07 re 136 ORDERING that the requirements of Paragraph 5 of the April 23, 2007 Stipulation and Order 98 to meet and confer and agree upon a number or percentage of parole proceedings shall be completed by July 10, 2007. (Duong, D) (Entered: 07/02/2007)
138 MOTION for PARTIAL SUMMARY JUDGMENT by Plaintiffs. Motion Hearing set for 7/30/2007 at 10:00 AM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. (Grunfeld, Gay) Modified on 9/24/2007 (Krueger, M). (Entered: 07/02/2007)
139 MEMORANDUM in SUPPORT of 138 MOTION for PARTIAL SUMMARY JUDGMENT by Plaintiffs. (Grunfeld, Gay) Modified on 9/24/2007 (Krueger, M). (Entered: 07/02/2007)
140 REQUEST for JUDICIAL NOTICE by Plaintiffs in SUPPORT of 138 Motion for Partial Summary Judgment. (Grunfeld, Gay) Modified on 9/24/2007 (Krueger, M). (Entered: 07/02/2007)
141 PROPOSED ORDER Granting 138 Motion for Partial Summary Judgment by Plaintiffs. (Grunfeld, Gay) Modified on 9/24/2007 (Krueger, M). (Entered: 07/02/2007)
142 DECLARATION of Maria V. Morris in SUPPORT of 138 Motion for Partial Summary Judgment. (Morris, Maria) Modified on 9/24/2007 (Krueger, M). (Entered:

Case: 2:06-cv-2042 As of: 07/19/2015 05:31 PM PDT 31 of 70

07/02/2007 07/02/2007 07/02/2007 07/02/2007 07/02/2007 07/03/2007 07/03/2007 07/03/2007 07/03/2007 07/05/2007 07/06/2007 07/11/2007 07/12/2007 07/12/2007
07/12/2007

07/02/2007)
143 SEPARATE STATEMENT of Undisputed Facts in SUPPORT of 138 Motion for Partial Summary Judgment by Plaintiffs. (Morris, Maria) Modified on 9/24/2007 (Krueger, M). (Entered: 07/02/2007)
144 MOTION to SEAL Declaration of Gay Crosthwait Grunfeld by A.Z., D.K., D.R., L.H.. (Morris, Maria) (Entered: 07/02/2007)
145 PROPOSED ORDER Granting 144 MOTION to SEAL by Plaintiffs. (Morris, Maria) Modified on 9/24/2007 (Krueger, M). (Entered: 07/02/2007)
146 NOTICE OF LODGING DOCUMENTS IN PAPER by A.Z., D.K., D.R., L.H.: Deposition Transcripts July 2, 2007 with court pursuant to 5−133(j). (Morris, Maria) (Received 7/2/07 and routed to file room) Modified on 7/2/2007 (Yin, K). (Entered: 07/02/2007)
147 NOTICE OF FILING / LODGING DOCUMENT IN PAPER by A.Z.: Notice of Filing Sealed Document in Hard Copy Only Declaration of Gay Crosthwait Grunfeld in Support of Motions for Partial Summary Judgment and for Leave to File under Seal, filed under seal with court pursuant to 39−141. (Grunfeld, Gay) (Entered: 07/02/2007)
148 ORDER signed by Judge Lawrence K. Karlton on 7/3/07 ALLOWING declaration of Gay Crosthwait Grunfeld in support of ptfs' motion for partial summary judgment to be filed under seal. (Carlos, K) (Entered: 07/03/2007)
149 SEALED EVENT (Carlos, K) (Entered: 07/03/2007)
150 CERTIFICATE of SERVICE by Plaintiffs of 141 Proposed Order, 144 MOTION to SEAL, 138 Motion for Partial Summary Judgment, 140 Request for Judicial Notice, 143 Statement, 139 Memorandum in Support of Motion, 145 Proposed Order. (Grunfeld, Gay) Modified on 9/24/2007 (Krueger, M). (Entered: 07/03/2007)
151 CERTIFICATE of SERVICE by A.Z., D.K., D.R., L.H. re 147 Notice of Filing / Lodging Document in Paper − ATY, 146 Notice of Filing / Lodging Document in Paper − ATY. (Grunfeld, Gay) (Entered: 07/03/2007)
152 ORDER signed by Judge Lawrence K. Karlton on 07/03/07 ORDERING that the hearing set for 07/30/07 is hereby CONTINUED to 8/3/2007 at 01:30 PM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. (Manzer, C) (Entered: 07/05/2007)
153 ORDER signed by Judge Lawrence K. Karlton on 7/6/07 GRANTING 124 Request for Reconsideration. The defendants shall produce documents outlined in the order under seal to plaintiffs no later than close of business on 7/13/07.(Donati, J) (Entered: 07/06/2007)
154 STATEMENT of Pre−Conference Discovery Status Report by Plaintiffs A.Z., D.K., D.R., L.H. re 134 Order,. Re Discovery Conference (Morris, Maria) (Entered: 07/11/2007)
155 STIPULATION and PROPOSED ORDER Re Continuing Plaintiffs' Motion for Partial Summary Judgment 138 by dfts. (Kwong, William) Modified on 7/13/2007 (Duong, D). (Entered: 07/12/2007)
156 MINUTES (Text Only) for proceedings held before Judge Gregory G. Hollows : DISCOVERY HEARING held on 7/12/2007. The court and counsel discuss the pertinent issues of the case. The court wants defendants to give him the final date they will produce the privilege logs. Defendants request an additional thirty to forty−five days. Plaintiff objects, the court gives the Defendants an additional thirty days to produce the privilege logs no further extension will be granted. The court also states he will issue a written order concerning remedies Plaintiffs Counsel Maria V. Morris present. Defendants Counsel Monica Anderson and William Kwong present. Court Reporter/CD Number: 1 of 1. (Callen, V) (Entered: 07/12/2007)
157 PROPOSED Protective ORDER re Confidentiality of Documents Ordered Produced by Order Dated July 6, 2007 by dfts. (Kwong, William) Modified on 7/13/2007 (Duong, D). (Entered: 07/12/2007)

Case: 2:06-cv-2042 As of: 07/19/2015 05:31 PM PDT 32 of 70

07/13/2007
07/13/2007 07/16/2007 07/16/2007 07/16/2007 07/17/2007
07/17/2007 07/18/2007 07/19/2007

158 SUMMARY ORDER signed by Judge Gregory G. Hollows on 07/13/07 ORDERING that with respect to all electronic discovery concerning requests for production,including privilege logs, except for "office tech" computer searches, the deadline for production is August 11, 2007. Within ten days of August 11, 2007, plaintiffs' counsel shall conduct a cursory review of produced electronic discovery, and either agree with defendants' counsel that a search for "office tech" discovery is not necessary, or make an emergency request which will be placed on the court's next law and motion calendar. The court takes under submission the appropriate remedies for the belated commencement of electronic discovery searches by defendants. Defendants represented in court that previously propounded interrogatories and requests for production have been finally answered/responded to. Should plaintiffs have a motion to make regarding completed discovery, they may file it forthwith. (Duong, D) (Entered: 07/13/2007)
159 PROTECTIVE ORDER re 157 re Confidentiality of Document Ordered Produced by Order dated 7/6/07 153 signed by Judge Gregory G. Hollows on 07/13/07. (Duong, D) (Entered: 07/13/2007)
160 OPPOSITION to motion for summary judgment 138 by Defendants Arnold Schwarzenegger, James E. Tilton, Kingston Bud Prunty, Bernard Warner, Dennis Dulay, John Monday, James Davis, Joyce Arredondo, Paul Chabot, Joseph Compton, Susan Melanson, Chuck Supple, CDCR. (Attachments: # 1 DECLARATION of Allen Wilcher in support of oppositon(2) DECLARATION OF Shelly Jones (Kwong, William) Modified on 7/17/2007 (Kaminski, H). (Entered: 07/16/2007)
161 REPLY/RESPONSE to PLAINTIFF'S SEPARATE STATEMENT OF UNDISPUTED FACTS by Arnold Schwarzenegger, James E. Tilton, Kingston Bud Prunty, Bernard Warner, Dennis Dulay, John Monday, James Davis, Joyce Arredondo, Paul Chabot, Joseph Compton, Susan Melanson, Chuck Supple, CDCR. (Kwong, William) (Entered: 07/16/2007)
162 PROPOSED ORDER DENYING PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT by Arnold Schwarzenegger, James E. Tilton, Kingston Bud Prunty, Bernard Warner, Dennis Dulay, John Monday, James Davis, Joyce Arredondo, Paul Chabot, Joseph Compton, Susan Melanson, Chuck Supple, CDCR. (Kwong, William) Modified on 7/17/2007 (Kaminski, H). (Entered: 07/16/2007)
163 CERTIFICATE of SERVICE by Arnold Schwarzenegger, James E. Tilton, Kingston Bud Prunty, Bernard Warner, Dennis Dulay, John Monday, James Davis, Joyce Arredondo, Paul Chabot, Joseph Compton, Susan Melanson, Chuck Supple, CDCR. Declaration of Service by Messenger (Attachments: # 1 Attachments: # (1) Opposition to Plaintiffs' Motion for Partial Summary Judgment; Declaration of Allen Wilcher in Support of Defendants' Opposition to Summary Judgment; Declaration of Shelly Jones# 2 Attachment: # (2) Defendants' Response to Plaintiff's Separate Statement of Undisputed Facts# 3 Attachment: # (3) [Proposed] Order Denying Plantiffs' Motion for Partial Summary Judgment)(Kwong, William) (Entered: 07/17/2007)
165 TRANSCRIPT of Hearing re: plaintiff's motion to compel motion for discovery 89 held on 5/17/2007 before The Honorable Gregory G. Hollows. (TEXT ONLY−Maintained on Paper) (Schultz, C) (Entered: 07/19/2007)
164 REVISED STIPULATION and PROPOSED ORDER re continuing plaintiff's Motion for Partial Summary Judgment by Arnold Schwarzenegger, James E. Tilton, Kingston Bud Prunty, Bernard Warner, Dennis Dulay, John Monday, James Davis, Joyce Arredondo, Paul Chabot, Joseph Compton, Susan Melanson, Chuck Supple, CDCR. (Kwong, William) Modified on 7/19/2007 (Marciel, M). (Entered: 07/18/2007)
166 MINUTE ORDER: The court is in receipt of the parties' revised stipulation filed on July 18, 2007. The stipulation filed on July 12, 2007 is hereby disregarded. The court modifies the parties' July 18th stipulation as follows: the hearing on plaintiffs' motion for partial summary judgment, currently set for August 3, 2007, is hereby CONTINUED to September 10, 2007 at 10:00 a.m. With respect to the additional briefing requested by the parites, the court orders that defendants may file a supplemental opposition no later than August 13, 2007. Plaintiffs' reply brief, if any, shall be filed no later than August 27, 2007. IT IS SO ORDERED. (Hoover, S) (Entered: 07/19/2007)

Case: 2:06-cv-2042 As of: 07/19/2015 05:31 PM PDT 33 of 70

07/20/2007 08/09/2007 08/10/2007 08/16/2007
08/23/2007 08/23/2007 08/23/2007 08/23/2007 08/23/2007
08/23/2007 08/27/2007 08/27/2007 08/27/2007 08/27/2007 08/27/2007

167 DESIGNATION of COUNSEL FOR SERVICE: attorney James Michael Sobolewski terminated (Sobolewski, James) Modified on 7/23/2007 (Duong, D). (Entered: 07/20/2007)
168 ORDER signed by Judge Gregory G. Hollows on 8/8/07 ORDERING that defendant may have until 8/17/07, to serve their privilege log. (Anderson, J) (Entered: 08/09/2007)
169 SECOND JOINT STIPULATION and PROPOSED ORDER re Request for Inspection re 98 Stipulation and Order by A.Z., D.K., D.R., L.H.. (Morris, Maria) Modified on 8/15/2007 (Reader, L). (Entered: 08/10/2007)
170 SECOND JOINT STIPULATION and ORDER re Request for Inspection signed by Judge Gregory G. Hollows on 08/16/07 re 169 ORDERING that the court GRANTING the parties' Second Joint Stipulation. This Second Inspection Order is intended to supplement the parties prior agreements, as reflected in the First Inspection Order. In the event that the First and Second Inspection Orders conflict, this Second Inspection Order controls. (Duong, D) (Entered: 08/16/2007)
171 DECLARATION of Maria V. Morris in Support of 175 Motion of Sanctions. (Attachments: # 1 Part 2# 2 Part 3# 3 Part 4) (Donati, J) Modified on 9/24/2007 (Donati, J). [NOT SEALED PER ORDER 202 ] Modified on 9/24/2007 (Krueger, M). (Entered: 08/23/2007)
172 MOTION to SEAL Declaration of Maria V. Morris by A.Z., D.K., D.R., L.H. Motion Hearing set for 9/6/2007 at 10:00 AM in Courtroom 24 (GGH) before Magistrate Judge Gregory G. Hollows. (Morris, Maria) Modified on 9/24/2007 (Krueger, M). (Entered: 08/23/2007)
173 PROPOSED ORDER Allowing Declaration of Maria V. Morris to be Filed Under Seal by A.Z., D.K., D.R., L.H.. (Morris, Maria) Modified on 9/24/2007 (Krueger, M). (Entered: 08/23/2007)
174 NOTICE OF FILING SEALED DOCUMENT − Declaration of Maria V. Morris −in HARD COPY ONLY with the Court pursuant to CIVIL L.R. 39−141(D). (Morris, Maria) Modified on 9/24/2007 (Krueger, M). (Entered: 08/23/2007)
175 MOTION for SANCTIONS for Defendants' Inadequate and Improper Interrogatory Responses by A.Z., D.K., D.R., L.H.. Motion Hearing set for 9/6/2007 at 10:00 AM in Courtroom 24 (GGH) before Magistrate Judge Gregory G. Hollows. (Morris, Maria) Modified on 8/29/2007 (Marciel, M). Modified on 9/24/2007 (Krueger, M). (Entered: 08/23/2007)
176 PROPOSED ORDER Granting Motion for Discovery Sanctions 175 by A.Z., D.K., D.R., L.H.. (Morris, Maria) Modified on 9/24/2007 (Krueger, M). (Entered: 08/23/2007)
177 REPLY to RESPONSE to 138 MOTION for PARTIAL SUMMARY JUDGMENT by Plaintiffs. (REDACTED Version) (Grunfeld, Gay) Modified on 9/24/2007 (Krueger, M). (Entered: 08/27/2007)
178 MOTION to SEAL Plaintiffs' Reply and Reply Declarations of Gay Crosthwait Grunfeld and Corene Kendrick by A.Z..Motion Hearing set for 9/10/2007 at 10:00 AM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. (Grunfeld, Gay) (Entered: 08/27/2007)
179 PROPOSED ORDER Granting 178 Plaintiffs Motion to File Under Seal. (Grunfeld, Gay) Modified on 9/24/2007 (Krueger, M). (Entered: 08/27/2007)
180 DECLARATION of Sarah Laubach in SUPPORT of 177 Plaintiffs Reply to Opposition to Plaintiff's Motion for Partial Summary Judgment, and Plaintiffs Evidentiary Objections to Defendants Declarations. (Attachments: # 1 Exhibits C−G)(Laubach, Sarah) Modified on 9/24/2007 (Krueger, M). (Entered: 08/27/2007)
181 EVIDENTIARY OBJECTIONS by Plaintiffs to Defendants Declarations in Opposition to Plaintiff's Motion for Partial Summary Judgment. (Laubach, Sarah) Modified on 9/24/2007 (Krueger, M). (Entered: 08/27/2007)

Case: 2:06-cv-2042 As of: 07/19/2015 05:31 PM PDT 34 of 70

08/27/2007 08/27/2007 08/27/2007 08/27/2007 08/27/2007 08/27/2007 08/28/2007
08/28/2007 08/29/2007
08/29/2007
08/29/2007 09/06/2007 09/06/2007 09/06/2007
09/07/2007
09/10/2007 09/10/2007

182 PROPOSED ORDER Sustaining Plaintiffs 181 Objections to Defendants Declarations in Opposition to Plaintiffs Motion for Partial Summary. (Laubach, Sarah) Modified on 9/24/2007 (Krueger, M). (Entered: 08/27/2007)
183 NOTICE OF FILING / LODGING DOCUMENT In Paper by A.Z., D.K., D.R., L.H. (Documents received 8/27/07 and routed to file room) (Laubach, Sarah) Modified on 8/28/2007 (Engbretson, K.). (Entered: 08/27/2007)
184 NOTICE OF FILING SEALED DOCUMENTS IN HARD COPY ONLY on August 27, 2007 with court pursuant to 39−141. (Laubach, Sarah) Modified on 9/24/2007 (Krueger, M). (Entered: 08/27/2007)
185 SEALED EVENT (Kaminski, H) (Entered: 08/28/2007)
186 SEALED EVENT (Kaminski, H) (Entered: 08/28/2007)
187 SEALED EVENT (Kaminski, H) (Entered: 08/28/2007)
188 STIPULATION and PROPOSED ORDER continuing Hearing for 175 MOTION for SANCTIONS for defendants' inadequate and Iimproper Interrogatory Responses by A.Z., D.K., D.R., L.H.. (Morris, Maria) Modified on 8/29/2007 (Marciel, M). (Entered: 08/28/2007)
189 PROOF of SERVICE by A.Z., D.K., D.R., L.H.. (Laubach, Sarah) Modified on 8/29/2007 (Marciel, M). (Entered: 08/28/2007)
190 STIPULATION and ORDER 188 for continuance signed by Magistrate Judge Gregory G. Hollows on 8/29/07. Plaintiffs' 175 MOTION for Sanctions for defendants' inadequate and improper Interrogatory Responses Hearing RE−SET for 9/13/2007 at 10:00 AM in Courtroom 24 (GGH). Opposition to Motion due 9/6/07 and Reply in support of Motion due on 9/10/07. (Marciel, M) (Entered: 08/29/2007)
191 ORDER signed by Judge Lawrence K. Karlton on 8/28/07 GRANTING plaintiffs' 178 MOTION to Seal. The Grunfeld Reply Declaration and Exhibits thereto, the Kendrick Reply Declaration, and plaintiffs' Reply shall be filed under seal by Clerk of Court and made available only to Court or counsel. (Marciel, M) (Entered: 08/29/2007)
192 TRANSCRIPT of Discovery Conference held on 7/12/07 before the Honorable Gregory G. Hollows. (TEXT ONLY−Maintained on Paper) (Schultz, C) (Entered: 08/29/2007)
193 MEMORANDUM/RESPONSE in OPPOSITION plts' Motion for Sanctions for Inadequate and Improper Interrogatory Responses 175 . (Kwong, William) Modified on 9/7/2007 (Duong, D). (Entered: 09/06/2007)
194 DECLARATION of Shelly Jones in Support Of 193 Opposition to Motion for Sanctions. (Kwong, William) Modified on 9/7/2007 (Duong, D). (Entered: 09/06/2007)
195 [DISREGARD − Attorney to amend judge signature block] PROPOSED ORDER Denying plts' Motion for Sanctions For Inadequate and Improper Interrogatory Responses 175 . (Kwong, William) Modified on 9/7/2007 (Duong, D). Modified on 9/7/2007 (Waggoner, D). (Entered: 09/06/2007)
196 AMENDED PROPOSED ORDER Denying Plaintiffs' Motion For Discovery Sanctions For Inadequate and Improper Interrogatory Responses re 193 Memorandum/Response in Opposition to Motion by Arnold Schwarzenegger, James E. Tilton, Kingston Bud Prunty, Bernard Warner, Dennis Dulay, John Monday, James Davis, Joyce Arredondo, Paul Chabot, Joseph Compton, Susan Melanson, Chuck Supple, CDCR. (Kwong, William) Modified on 9/7/2007 (Waggoner, D). (Entered: 09/07/2007)
197 REPLY to RESPONSE 193 to MOTION re 175 MOTION for SANCTIONS for defendants' inadequate and improper Interrogatory Responses. (Morris, Maria) Modified on 9/11/2007 (Duong, D). (Entered: 09/10/2007)
198 DECLARATION of Maria V. Morris in Support of Plaintiffs' Reply on Motion for Discovery Sanctions 197 .(Morris, Maria) Modified on 9/11/2007 (Duong, D). (Entered: 09/10/2007)

Case: 2:06-cv-2042 As of: 07/19/2015 05:31 PM PDT 35 of 70

09/12/2007 09/13/2007
09/19/2007 09/21/2007
10/05/2007 10/05/2007 10/05/2007 10/22/2007 10/22/2007 10/24/2007 10/25/2007
10/29/2007
11/07/2007

199 MINUTES (Text Only) for proceedings held before Judge Lawrence K. Karlton: MOTION HEARING held on 9/10/2007 re 138 MOTION for PARTIAL SUMMARY JUDGMENT filed by Plaintiffs. After oral argument, the motion stands SUBMITTED. Court order to follow. Plaintiffs Counsel Gay Grunfeld present. Defendants Counsel William Kwong present. Court Reporter: C. Bodene. (Rivas, A) (Entered: 09/12/2007)
200 MINUTES (Text Only) for proceedings held before Judge Gregory G. Hollows : MOTION HEARING held on 9/13/2007 re 175 MOTION for SANCTIONS for defendants' inadequate and improper Interrogatory Responses filed by D.R., D.K., A.Z., L.H. Motion is Submitted the court will issue an order forthwith. Plaintiffs Counsel Maria V. Morris present. Defendants Counsel William C. Kwong present. Court Reporter/CD Number: 1 of 1. (Callen, V) (Entered: 09/13/2007)
201 ORDER signed by Judge Lawrence K. Karlton on 9/18/07 GRANTING 138 Motion for partial Summary Judgment but DENYING the issue of injunctive relief. (Anderson, J) (Entered: 09/19/2007)
202 ORDER signed by Judge Gregory G. Hollows on 9/21/07 DENYING 172 Motion to Seal and GRANTING 175 Motion for Sanctions. Defendants shall produce the files outlined in this order within 15 calendar days of this order. Defendants shall respond in full to the interrogatories outlined above regarding policy, within 15 calendar days of this order. Plaintiffs are permitted to depose knowledgeable persons during October, 2007, on two weeks notice. Fees and costs shall be awarded. Plaintiffs shall submit declarations in support of their claimed fees and costs within 15 days of this order. (Donati, J) (Entered: 09/21/2007)
203 DECLARATION of Michael W. Bien in SUPPORT OF re 202 Order, Terminate Motions − O,,,,. Application for Monetary Sanctions (Attachments: # 1 Exhibit Exhibits 1−4# 2 Exhibit Exhibits 5−6# 3 Exhibit Exhibit 7# 4 Exhibit Exhibit 8−9)(Morris, Maria) (Entered: 10/05/2007)
204 DECLARATION of Richard M. Pearl in SUPPORT OF re 203 Declaration, 202 Order, Terminate Motions − O,,,,. Application for Monetary Sanctions (Attachments: # 1 Exhibit Exhibit A)(Morris, Maria) (Entered: 10/05/2007)
205 PROPOSED ORDER Awarding Reasonable Attorneys Fees and Costs as Monetary Sanctions re 204 Declaration, 203 Declaration, 202 Order, Terminate Motions − O,,,, by A.Z., D.K., D.R., L.H.. (Morris, Maria) (Entered: 10/05/2007)
206 STIPULATION and PROPOSED ORDER Extending Dates for Rule 26(a)(2) Expert Designation Reports and Depositions by A.Z.. (Grunfeld, Gay) Modified on 10/23/2007 (Kaminski, H). (Entered: 10/22/2007)
207 LETTER from Attorney General re detention hearing plan. (Kaminski, H) (Entered: 10/23/2007)
208 ORDER signed by Judge Lawrence K. Karlton on 10/23/2007 ORDERING The court is in receipt of the defendant's proposed remedial plan, filed with the court on October 18, 2007. The plaintiff is ordered to file a response, if any, no later than fifteen days after the date of this order. 207 (Reader, L) (Entered: 10/24/2007)
209 MINUTES (Text Only) for TELEPHONIC STATUS CONFERENCE RE DEADLINES before Judge Lawrence K. Karlton on 10/25/2007: The Final Pretrial Conference is RESET from 6/30/08 to 9/29/08 at 1:30 PM in Courtroom 4 (LKK) before Senior Lawrence K. Karlton, and the Bench Trial is RESET from 9/30/08 to 1/6/09 at 10:30 AM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. Court order to follow. Plaintiffs Counsel Geoffrey Holtz and Gay Grunfled present. Defendants Counsel William Kwong present. (Krueger, M) (Entered: 10/25/2007)
210 ORDER signed by Judge Lawrence K. Karlton on 10/26/07 ORDERING thatDesignation of Expert Witnesses due by 2/12/2008; Discovery due by 4/30/2008; Final Pretrial Conference set for 9/29/2008 at 09:00 AM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton; Jury Trial set for 1/6/2009 at 09:00 AM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. The parties represent that the trial will take approximately 8 days. (Anderson, J) (Entered: 10/29/2007)
211 DECLARATION of Gay C. Grunfeld in Support of 214 Plaintiffs' Objections to Defendants' Probable Cause/Detention Plan (Grunfeld, Gay) Modified on 11/8/2007

Case: 2:06-cv-2042 As of: 07/19/2015 05:31 PM PDT 36 of 70

11/07/2007 11/07/2007 11/07/2007 11/08/2007 11/14/2007 11/14/2007 11/14/2007 11/14/2007 11/14/2007 11/14/2007 11/14/2007
11/15/2007
11/15/2007 11/15/2007 11/15/2007 11/16/2007 11/16/2007 11/19/2007
11/19/2007

(Kaminski, H). (Entered: 11/07/2007)
212 EXHIBITS D−G by Plaintiffs A.Z., D.K., D.R., L.H. to 211 Declaration of Gay C. Grunfeld (Grunfeld, Gay) Modified on 11/8/2007 (Kaminski, H). (Entered: 11/07/2007)
213 NOTICE of lodging deposition transcripts by Plaintiffs A.Z., D.K., D.R., L.H. (Grunfeld, Gay) Modified on 11/8/2007 (Kaminski, H). (Entered: 11/07/2007)
214 REDACTED OBJECTIONS by Plaintiffs to 207 Defendants' Probable Cause/Detention Hearing Plan (Grunfeld, Gay) Modified on 11/8/2007 (Kaminski, H). (Entered: 11/07/2007)
215 SEALED EVENT − Objections (Dillon, M) (Entered: 11/08/2007)
216 MOTION for a Remedial Order by plts. Motion Hearing set for 12/17/2007 at 10:00 AM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. (Grunfeld, Gay) Modified on 11/15/2007 (Duong, D). (Entered: 11/14/2007)
217 DECLARATION of Michael W. Bien in Support Of Objections to dfts' Probable Cause/Detention Hearings plan and re 216 Plaintiffs' Motion for a Remedial Order. (Grunfeld, Gay) Modified on 11/15/2007 (Duong, D). (Entered: 11/14/2007)
218 PROPOSED Remedial Order Pursuant to September 19, 2007 Partial Summary Judgment Order re 216 plts' Motion . (Grunfeld, Gay) Modified on 11/15/2007 (Duong, D). (Entered: 11/14/2007)
219 REDACTED MEMORANDUM/RESPONSE in SUPPORT of Plaintiffs' Motions for a Remedial Order 216 and a Preliminary Injunction 220 (Grunfeld, Gay) Modified on 11/15/2007 (Duong, D). Modified on 11/15/2007 (Duong, D). (Entered: 11/14/2007)
220 MOTION for PRELIMINARY INJUNCTIVE RELIEF by plts. Motion Hearing set for 12/17/2007 at 10:00 AM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. (Grunfeld, Gay) Modified on 11/15/2007 (Duong, D). (Entered: 11/14/2007)
221 DECLARATION of Sarah Laubach in Support of re 220 plts' MOTION for PRELIMINARY INJUNCTION. (Grunfeld, Gay) Modified on 11/15/2007 (Duong, D). (Entered: 11/14/2007)
222 PROPOSED ORDER Proposed Order re 220 MOTION for PRELIMINARY INJUNCTION Notice of Motion and Motion for Preliminary Injunctive Relief. Proposed Order Granting Preliminary Injunctive Relief (Grunfeld, Gay) (Entered: 11/14/2007)
223 NOTICE LODGING DOCUMENT IN PAPER by A.Z., D.K., D.R., L.H. of Deposition Transcripts pursuant to LR 5−133(j). (Morris, Maria) (Documents Received and Routed to Fileroom on 11/16/07) Modified on 11/16/2007 (Kaminski, H). (Entered: 11/15/2007)
224 NOTICE OF FILING / LODGING DOCUMENT IN PAPER by A.Z., D.K., D.R., L.H.: Notice of Filing of Sealed Document Filed with court pursuant to LR 39−141. (Morris, Maria) (Entered: 11/15/2007)
225 SEALED EVENT (Manzer, C) (Entered: 11/15/2007)
226 SEALED EVENT (Manzer, C) (Entered: 11/15/2007)
227 SEALED EVENT (Marciel, M) (Entered: 11/16/2007)
228 SEALED EVENT (Marciel, M) (Entered: 11/16/2007)
229 MOTION for LEAVE to file Secons Amended Complaintand to Amend the Class Definition by A.Z., D.K., D.R., L.H.. Motion Hearing set for 12/17/2007 at 10:00 AM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. (Laubach, Sarah) Modified on 11/26/2007 (Marciel, M). (Entered: 11/19/2007)
230 MEMORANDUM of Points and Authorities in support of 229 for Leave to file Second Amended Complaint and to Amend the Class Definition. (Laubach, Sarah) Modified on 11/26/2007 (Marciel, M). (Entered: 11/19/2007)

Case: 2:06-cv-2042 As of: 07/19/2015 05:31 PM PDT 37 of 70

11/19/2007 11/19/2007 11/20/2007 11/28/2007 11/28/2007
11/29/2007
11/29/2007 12/28/2007 12/31/2007 12/31/2007 12/31/2007 12/31/2007 12/31/2007 12/31/2007 12/31/2007 12/31/2007

231 DECLARATION of Gay Grunfeld and Exhibits A−B in support of 229 Motion for Leave to file Second Amended Complaint and to Amend the Class Definition. (Attachments: # 1 Exhibit C−I to Declaration of Gay Grunfeld) (Laubach, Sarah) Modified on 11/26/2007 (Marciel, M). (Entered: 11/19/2007)
232 PROPOSED ORDER granting 229 Motion for Leave to file Second Amended Complaint and to Amend the Class Definition. (Laubach, Sarah) Modified on 11/27/2007 (Marciel, M). (Entered: 11/19/2007)
233 CERTIFICATE of SERVICE by A.Z., D.K., D.R., L.H. re 229 MOTION to AMEND the COMPLAINT and to Amend the Class Definition. (Laubach, Sarah) (Entered: 11/20/2007)
234 ORDER signed by Judge Lawrence K. Karlton on 11/28/07 ORDERING that the parties shall meet and confer for the purpose of developing an adequate remedial plan that all parties find satisfactory within 60 days. (Manzer, C) (Entered: 11/28/2007)
235 STIPULATION and PROPOSED ORDER Stipulation and Proposed Order re Extension of Time to File Opposition by Arnold Schwarzenegger, James E. Tilton, Kingston Bud Prunty, Bernard Warner, Dennis Dulay, John Monday, James Davis, Joyce Arredondo, Paul Chabot, Joseph Compton, Susan Melanson, Chuck Supple, CDCR, Division of Juvenile Justice, Board of Parole Hearings. (Kwong, William) (Entered: 11/28/2007)
236 MINUTE ORDER: The parties are hereby notified that the hearing on the motions 216 , 220 , 229 , currently scheduled for 12/17/2007 is continued to 01/14/2008 at 10:00 AM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. Opposition briefs are due no later than 12/31/2007. Replies, if any, are due no later than 01/07/2008. Ordered by Judge Lawrence K. Karlton on November 29, 2007. (Text Only)(Rivas, A) (Entered: 11/29/2007)
237 INTERNAL COURT NOTICE − re 235 Stipulation and Proposed Order. Stipulation Not to be signed, see 236 Minute Order. (Rivas, A) (Entered: 11/29/2007)
238 PLAINTIFF(S) STATUS REPORT by A.Z.. (Grunfeld, Gay) (Entered: 12/28/2007)
239 MEMORANDUM/RESPONSE in OPPOSITION by dfts to re 216 MOTION for a Remedial Order and 220 Preliminary Injunction.(Kwong, William) Modified on 1/2/2008 (Duong, D). (Entered: 12/31/2007)
240 MEMORANDUM/RESPONSE in OPPOSITION by dfts to re 229 plts' Motion for Leave to file Second Amended Complaint and to Amend the Class Definition. Attorney Fritz, Cynthia Clarke added. (Fritz, Cynthia) Modified on 1/2/2008 (Duong, D). (Entered: 12/31/2007)
241 DECLARATION of Shelly Jones in Support of re 239 dfts' Opposition to Motion for Remedial Order and Preliminary Injunction. (Kwong, William) Modified on 1/2/2008 (Duong, D). (Entered: 12/31/2007)
242 PROPOSED ORDER Denying Plaintiffs' Motions for Preliminary Inuction re 239 Memorandum/Response in Opposition to Motion by dfts(Kwong, William) Modified on 1/2/2008 (Duong, D). (Entered: 12/31/2007)
243 REQUEST for Judicial Notice in Support of Defendants' 239 Opposition to Plaintiffs' Motions for Remedial Order and Preliminary Injunction by dfts . (Kwong, William) Modified on 1/2/2008 (Duong, D). (Entered: 12/31/2007)
244 DECLARATION of Cynthia C. Fritz in Support of re 240 Opposition to plts' Motion for Leave to File the Second Amended Class Action Complaint and to Amend the Class Definition. (Attachments: # 1 Exhibit A part 1 of 2# 2 Exhibit A part 2 of 2)(Fritz, Cynthia) Modified on 1/2/2008 (Duong, D). (Entered: 12/31/2007)
245 PROPOSED ORDER Denying Plaintiffs' Motions for Remedial Order by dfts. (Kwong, William) Modified on 1/2/2008 (Duong, D). (Entered: 12/31/2007)
246 PROPOSED ORDER Denying plts' Motion for leave to amend the class definition by dfts. (Fritz, Cynthia) Modified on 1/2/2008 (Duong, D). (Entered: 12/31/2007)

Case: 2:06-cv-2042 As of: 07/19/2015 05:31 PM PDT 38 of 70

12/31/2007 01/07/2008
01/07/2008
01/07/2008 01/07/2008 01/07/2008 01/07/2008 01/07/2008 01/07/2008 01/07/2008
01/07/2008
01/07/2008 01/07/2008
01/07/2008 01/07/2008 01/14/2008 01/14/2008

247 NOTICE of APPEARANCE by Cynthia Clarke Fritz on behalf of dfts. (Fritz, Cynthia). (Entered: 12/31/2007)
248 AMENDED REQUEST For Judicial Notice re 243 In Support Of 240 Defendants' Opposition To Plaintiffs' Motions For Remedial Order And Preliminary Injunction (Attachments: # 1 Exhibit A)(Kwong, William) Modified on 1/8/2008 (Duong, D). (Entered: 01/07/2008)
249 REPLY DECLARATION of Michael W. Bien in support of plts' 216 MOTION for a Remedial Order, 220 Preliminary Injunction 229 Motion for Leave to file Second Amended Complaint and to Amend the Class Definition. (Grunfeld, Gay) Modified on 1/8/2008 (Duong, D). (Entered: 01/07/2008)
250 EXHIBIT A to 249 Reply Declaration of Michael W. Bien (Grunfeld, Gay) Modified on 1/8/2008 (Duong, D). (Entered: 01/07/2008)
251 EXHIBIT B to 249 Reply Declaration of Michael W. Bien. (Grunfeld, Gay) Modified on 1/8/2008 (Duong, D). (Entered: 01/07/2008)
252 REQUEST for JUDICIAL NOTICE by plts re 216 Motion for Remedial Order, 229 Motion to Amend the Complaint, 220 Motion for Preliminary Injunction. (Grunfeld, Gay) Modified on 1/8/2008 (Duong, D). (Entered: 01/07/2008)
253 EXHIBIT A to Plaintiffs' 252 Request for Judicial Notice (Grunfeld, Gay) Modified on 1/8/2008 (Duong, D). (Entered: 01/07/2008)
254 EXHIBITS B & C to Plaintiffs' 252 Request for Judicial Notice. (Grunfeld, Gay) Modified on 1/8/2008 (Duong, D). (Entered: 01/07/2008)
255 REPLY to RESPONSE 240 to plts' MOTION re 229 Motion for Leave to file Second Amended Complaint and to Amend the Class Definition .(Laubach, Sarah) Modified on 1/8/2008 (Duong, D). (Entered: 01/07/2008)
256 DECLARATION of Gay C. Grunfeld in Support of re plts' 216 MOTION for a Remedial Order, 220 Preliminary Injunction and 229 Motion for Leave to file Second Amended Complaint and to Amend the Class Definition. (Grunfeld, Gay) Modified on 1/8/2008 (Duong, D). (Entered: 01/07/2008)
257 EVIDENTIARY OBJECTIONS by plts to 244 Fritz Declaration In Opposition To Plaintiffs' Motion For Leave to File the Second Amended Class Action Complaint And To Amend The Class Definition. (Grunfeld, Gay) Modified on 1/8/2008 (Duong, D). (Entered: 01/07/2008)
258 EVIDENTIARY OBJECTIONS by plts to 241 Jones Declaration In Opposition To Plaintiffs' Motion For Remedial Order And Preliminary Injunction. (Grunfeld, Gay) Modified on 1/8/2008 (Duong, D). (Entered: 01/07/2008)
259 NOTICE OF FILING / LODGING DOCUMENT IN PAPER by plts: Deposition Transcripts Lodged with court pursuant to Local Rule 5−133(j). (Grunfeld, Gay)(Documents received on 1/8/08 and routed to file room.) Modified on 1/8/2008 (Anderson, J). Modified on 1/8/2008 (Duong, D). (Entered: 01/07/2008)
260 REPLY to RESPONSE 239 to MOTION re 220 MOTION for PRELIMINARY INJUNCTIVE RELIEF. (Grunfeld, Gay) Modified on 1/8/2008 (Duong, D). (Entered: 01/07/2008)
261 REPLY to RESPONSE 239 to MOTION re 216 MOTION for a Remedial Order. (Grunfeld, Gay) Modified on 1/8/2008 (Duong, D). (Entered: 01/07/2008)
262 DESIGNATION of COUNSEL FOR SERVICE., attorney Michelle Leigh Angus terminated (Angus, Michelle) (Entered: 01/14/2008)
263 MINUTES (Text Only) for proceedings held before Judge Lawrence K. Karlton: MOTION HEARING held on 1/14/2008 re 216 , 220 , 229 . After oral argument, the motions stand SUBMITTED. Court order to follow. Plaintiffs Counsel Guy Grunfeld present. Defendants Counsel William Kwong, Cynthia Fritz present. Court Reporter: C. Bodene. (Rivas, A) (Entered: 01/15/2008)

Case: 2:06-cv-2042 As of: 07/19/2015 05:31 PM PDT 39 of 70

01/24/2008 01/24/2008 01/29/2008
01/29/2008 01/29/2008 02/07/2008 02/12/2008 02/12/2008 02/12/2008 02/12/2008 02/12/2008 02/14/2008 02/14/2008

264 TRANSCRIPT of motion for partial summary judgment held on 9/10/07 before Judge Lawrence K. Karlton. Court Reporter: C. Bodene. (TEXT ONLY) (Kaminski, H) (Entered: 01/24/2008)
265 TRANSCRIPT of motion to amend, motion for preliminary injunction and motion to enter pltf's remedial plan held on 1/14/08 before Judge Lawrence K. Karlton. Court Reporter: C. Bodene. (TEXT ONLY) (Kaminski, H) (Entered: 01/24/2008)
266 ORDER signed by Senior Judge Lawrence K. Karlton on 1/29/08 ORDERING that Plaintiffs' 229 motion to amend the first amended complaint is DENIED except to add plaintiffs M.N. and R.C. as named plaintiffs and the Juvenile Parole Board, Askia Abdulmajeed, and Tomas Martinez as defendants. Plaintiffs' 216 motion to enter a remedial order is DENIED. Plaintiffs' 220 motion for preliminary injunction isGRANTED IN PART. The dfts are ordered as follows: Commencing on or before February 15, 2008, Defendants shall appoint counsel to represent each and every Juvenile Parolee in Parole Revocation Proceedings. Counsel shall be appointed and provided with all necessary files at a time sufficiently in advance of the Probable Cause Hearing to allow adequate and competent preparation. Counsel shall not be denied reasonable access to all of their clients' files. Counsel shall be provided reasonable access to their clients in areas or spaces that provide for confidential communications. No Juvenile Parolee shall be precluded from obtaining counsel of his or her own choosing at his or her own cost, including his or her public defender or other appointed counsel, retained counsel, or pro bono counsel. Defendants shall submit the draft Policies and Procedures, as described in 3(f), supra, to the Court no later than March 15, 2008. Chase Riveland is appointed to serve as settlement referee in the case. In accordance with the parties representations, Mr. Riveland's fee will be paid by the parties, with the plaintiffs and defendants each bearing half of the cost. (Duong, D) (Entered: 01/29/2008)
PARTY UPDATE: R. C. and M. N. rep by Carole Shauffer, Corene Thaedra Kendrick, Donald Specter, Briana Lynn Morgan, Gay Crosthwait Grunfeld, Sarah Laubach, Meghan Regina Lang, Maria V. Morris, Kristen A Palumbo, Michael Bien, Susan Lynn Burrell, Geoffrey Thomas Holtz ; Juvenile Parole Board, Askia Abdulmajeed, and Tomas Martinez added. (Duong, D) (Entered: 01/29/2008)
SERVICE BY MAIL: 266 Order on Motion for Miscellaneous Relief, Order on Motion for Preliminary Injunction, Order on Motion to Amend the Complaint, served on Cynthia Clarke Fritz. (Duong, D) (Entered: 01/29/2008)
267 MOTION to COMPEL the Production of Documents Responsive to Plaintiffs Second Request for Production of Documents by A.Z., D.K., D.R., L.H., M. N., R. C.. Motion Hearing set for 3/6/2008 at 10:00 AM in Courtroom 24 (GGH) before Magistrate Judge Gregory G. Hollows. (Morris, Maria) (Entered: 02/07/2008)
268 DESIGNATION/DISCLOSURE of EXPERT WITNESS by A.Z.. (Grunfeld, Gay) (Entered: 02/12/2008)
269 DESIGNATION/DISCLOSURE of EXPERT WITNESS by A.Z.. (Grunfeld, Gay) (Entered: 02/12/2008)
270 DESIGNATION/DISCLOSURE of EXPERT WITNESS by A.Z.. (Grunfeld, Gay) (Entered: 02/12/2008)
271 DESIGNATION/DISCLOSURE of EXPERT WITNESS by A.Z.. (Grunfeld, Gay) (Entered: 02/12/2008)
272 DESIGNATION/DISCLOSURE of EXPERT WITNESS by A.Z.. (Grunfeld, Gay) (Entered: 02/12/2008)
273 MOTION to COMPEL Compliance with Plaintiffs' Third Requst for Inspection by A.Z., D.K., D.R., L.H., M. N., R. C.. Motion Hearing set for 3/6/2008 at 10:00 AM in Courtroom 24 (GGH) before Magistrate Judge Gregory G. Hollows. (Morris, Maria) (Entered: 02/14/2008)
274 MOTION to COMPEL Completion of Deposition Pursuant to FRCP 30(b)(6) by A.Z., D.K., D.R., L.H., M. N., R. C.. Motion Hearing set for 3/6/2008 at 10:00 AM in Courtroom 24 (GGH) before Magistrate Judge Gregory G. Hollows. (Morris, Maria) (Entered: 02/14/2008)

Case: 2:06-cv-2042 As of: 07/19/2015 05:31 PM PDT 40 of 70

02/15/2008 02/15/2008 02/28/2008
02/28/2008
02/28/2008 02/28/2008 02/28/2008
02/28/2008 02/28/2008 02/28/2008 02/28/2008 02/28/2008 02/28/2008 02/29/2008 03/07/2008
03/13/2008

275 ORDER signed by Magistrate Judge Gregory G. Hollows on 2/15/2008 ORDERING Joint Statement Filing due by 2/28/2008 re 274 MOTION to COMPEL filed by D.R., D.K., R.C., M.N., A.Z., L.H. (Reader, L) (Entered: 02/15/2008)
RESERVICE OF DOCUMENTS: re 275 Order, (Reader, L) (Entered: 02/15/2008)
276 DECLARATION of Tim McDonough in Support of. Attorney McDonough, Timothy John added. Defendants' Opposition to Plaintiffs' Motion to Compel (Attachments: # 1 Exhibit A, part 1 of 2, # 2 Exhibit A, part 2 of 2, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D)(McDonough, Timothy) (Entered: 02/28/2008)
277 DECLARATION of Cynthia C. Fritz in Support of. Attorney Fritz, Cynthia Clarke added. Defendants' Opposition to Plaintiff's Motion to Compel (Attachments: # 1 Exhibit A, part 1 of 2, # 2 Exhibit A, part 2 of 2, # 3 Exhibit B, # 4 Exhibit C)(Fritz, Cynthia) (Entered: 02/28/2008)
278 DECLARATION of Maria Morris in SUPPORT OF re 267 MOTION to COMPEL the Production of Documents Responsive to Plaintiffs Second Request for Production of Documents. (Grunfeld, Gay) (Entered: 02/28/2008)
279 EXHIBIT H−Q re 267 MOTION to COMPEL the Production of Documents Responsive to Plaintiffs Second Request for Production of Documents filed by D.R., D.K., R. C., M. N., A.Z., L.H.. (Grunfeld, Gay) (Entered: 02/28/2008)
280 DECLARATION of Gay Grunfeld in SUPPORT OF re 267 MOTION to COMPEL the Production of Documents Responsive to Plaintiffs Second Request for Production of Documents. and in support of Motion to Compel Compliance with Third Request for Inspection (Grunfeld, Gay) (Entered: 02/28/2008)
281 PROPOSED ORDER re 267 MOTION to COMPEL the Production of Documents Responsive to Plaintiffs Second Request for Production of Documents by A.Z., D.K., D.R., L.H., M. N., R. C.. (Grunfeld, Gay) (Entered: 02/28/2008)
282 WITHDRAWAL of 274 MOTION to COMPEL Completion of Deposition Pursuant to FRCP 30(b)(6) by A.Z., D.K., D.R., L.H., M. N., R. C.. (Grunfeld, Gay) (Entered: 02/28/2008)
283 STATEMENT of the parties by Plaintiffs A.Z., D.K., D.R., L.H., M. N., R. C. re 267 MOTION to COMPEL the Production of Documents Responsive to Plaintiffs Second Request for Production of Documents. (Grunfeld, Gay) (Entered: 02/28/2008)
284 PROPOSED ORDER re 273 MOTION to COMPEL Compliance with Plaintiffs' Third Requst for Inspection. (Morris, Maria) (Entered: 02/28/2008)
285 DECLARATION of Shirley Huey in Support of re 273 MOTION to COMPEL Compliance with Plaintiffs' Third Requst for Inspection. (Morris, Maria) (Entered: 02/28/2008)
286 STATEMENT by Plaintiff A.Z. re 273 MOTION to COMPEL Compliance with Plaintiffs' Third Requst for Inspection, 280 , 285 , 277 , 284 Proposed Order − R. (Morris, Maria) (Entered: 02/28/2008)
287 NOTICE OF FILING / LODGING DOCUMENT IN PAPER by A.Z.: Deposition Transcripts Lodged with court pursuant to Local Rule 5−133(j). (Morris, Maria) (Entered: 02/29/2008)
288 NOTICE OF LODGING DOCUMENT IN PAPER by A.Z: Deposition Transcript (Non−confidential portion) of Shelly Jones February 26, 2008 with court pursuant to 5−133(j). (Grunfeld, Gay) [document received and routed to fileroom] Modified on 3/7/2008 (Marciel, M). (Entered: 03/07/2008)
289 EXHIBIT by dfts (Attachments: # 1 Review/Rebuttal Expert Report of Adolf Phefferbaum, MD part 1 of 4, # 2 Review/Rebuttal Expert Report of Adolf Phefferbaum, MD, part 2 of 4, # 3 Review/Rebuttal Expert Report of Adolf Phefferbaum, MD, part 3 of 4, # 4 Review/Rebuttal Expert Report of Adolf Phefferbaum, MD, part 4 of 4)(Fritz, Cynthia) Modified on 3/14/2008 (Duong, D). (Entered: 03/13/2008)

Case: 2:06-cv-2042 As of: 07/19/2015 05:31 PM PDT 41 of 70

03/13/2008 03/20/2008
03/20/2008 03/24/2008 03/24/2008 03/24/2008 03/24/2008 03/24/2008 03/24/2008 03/24/2008 03/24/2008 03/24/2008 03/25/2008 03/26/2008
03/26/2008
03/26/2008

290 MOTION to COMPEL Production of Improperly Withheld Documents and Adequate Privilege Log by plts. Motion Hearing set for 4/3/2008 at 10:00 AM in Courtroom 24 (GGH) before Magistrate Judge Gregory G. Hollows. (Morris, Maria) Modified on 3/14/2008 (Duong, D). (Entered: 03/13/2008)
291 ORDER signed by Magistrate Judge Gregory G. Hollows on 3/20/08. Plaintiff's 267 Motion to Compel production of documents is GRANTED in part and DENIED in part in accordance with terms of this Order. Plaintiff's 273 Motion to Compel compliance with Third Requst for inspection is DENIED in part and GRANTED in part with respect to text outlined in Order. (Marciel, M) (Entered: 03/20/2008)
292 STANDING 251 STIPULATED ORDER signed by Magistrate Judge Gregory G. Hollows on 3/20/08. (Marciel, M) (Entered: 03/20/2008)
293 TRANSCRIPT of Hearing re: Plaintiff's Motion to Compel held on 3/6/08 before The Honorable Gregory G. Hollows. (TEXT ONLY−Maintained on Paper) (Schultz, C) (Entered: 03/24/2008)
294 MOTION to Enforce Court Orders and to Appoint a Special Master by A.Z.. Motion Hearing set for 4/21/2008 at 10:00 AM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. (Grunfeld, Gay) Modified on 3/25/2008 (Kaminski, H). (Entered: 03/24/2008)
295 MEMORANDUM/RESPONSE in SUPPORT of 294 MOTION to Enforce Court Orders and to Appoint a Special Master. (Grunfeld, Gay) Modified on 3/25/2008 (Kaminski, H). (Entered: 03/24/2008)
296 DECLARATION of Maria V. Morris in Support Of 294 MOTION . (Grunfeld, Gay) Modified on 3/25/2008 (Kaminski, H). (Entered: 03/24/2008)
297 DECLARATION of Gay C. Grunfeld in Support of 294 MOTION. (Attachments: # 1 Exhibit J − M, # 2 Exhibit N − Q)(Grunfeld, Gay) Modified on 3/25/2008 (Kaminski, H). (Entered: 03/24/2008)
298 PROPOSED ORDER re 294 MOTION . (Grunfeld, Gay) Modified on 3/25/2008 (Kaminski, H). (Entered: 03/24/2008)
299 NOTICE OF FILING / LODGING DOCUMENT IN PAPER by A.Z.: Deposition Transcript Lodged with court pursuant to E.D. Local Rule 5−133(j). (Grunfeld, Gay) (Deposition rcv'd on 3/24/2008) (Reader, L). (Entered: 03/24/2008)
300 NOTICE Of Filing Document Under Seal by A.Z.. (Grunfeld, Gay) (Entered: 03/24/2008)
302 SEALED EVENT (Marciel, M) (Entered: 03/25/2008)
301 CERTIFICATE of SERVICE by A.Z. re 294 MOTION to ENFORCE JUDGMENT Plaintiffs' Notice of Motion and Motion to Enforce Court Orders and to Appoint a Special Master. (Grunfeld, Gay) (Entered: 03/25/2008)
303 MOTION for EXTENSION re 292 Order Defendants' Request for Extension of Time to Respond to Comply with the Court's Order Dated March 20, 2008 by Arnold Schwarzenegger, James E. Tilton, Kingston Bud Prunty, Bernard Warner, Dennis Dulay, John Monday, James Davis, Joyce Arredondo, Paul Chabot, Joseph Compton, Susan Melanson, Chuck Supple, CDCR, Juvenile Parole Board, Askia Abdulmajeed, Tomas Martinez. Attorney Kwong, William C. added. (Kwong, William) (Entered: 03/26/2008)
304 DECLARATION of William C. Kwong in Support of re 303 MOTION for EXTENSION re 292 Order Defendants' Request for Extension of Time to Respond to Comply with the Court's Order Dated March 20, 2008 MOTION for EXTENSION re 292 Order Defendants' Request for Extension of Time to Respond to Comply with the Court's Order Dated March 20, 2008. (Kwong, William) (Entered: 03/26/2008)
305 PROPOSED ORDER [Proposed] Order Granting Defendants' Request for Extension of Time to Comply with the Court's Order Dated March 20, 2008 re 303 MOTION for EXTENSION re 292 Order Defendants' Request for Extension of Time to Respond to Comply with the Court's Order Dated March 20, 2008 MOTION for EXTENSION re 292 Order Defendants' Request for Extension of Time to Respond to Comply with the

Case: 2:06-cv-2042 As of: 07/19/2015 05:31 PM PDT 42 of 70

03/26/2008 03/27/2008 03/27/2008
03/31/2008 04/01/2008 04/01/2008 04/02/2008 04/03/2008 04/03/2008 04/03/2008 04/07/2008 04/07/2008 04/07/2008

Court's Order Dated March 20, 2008 by Arnold Schwarzenegger, James E. Tilton, Kingston Bud Prunty, Bernard Warner, Dennis Dulay, John Monday, James Davis, Joyce Arredondo, Paul Chabot, Joseph Compton, Susan Melanson, Chuck Supple, CDCR, Juvenile Parole Board, Askia Abdulmajeed, Tomas Martinez. (Kwong, William) (Entered: 03/26/2008)
306 STIPULATION and PROPOSED ORDER Stipulation and Proposed Order Re Continuing Hearing re 290 MOTION to COMPEL Production of Improperly Withheld Documents and Adequate Privilege Log by A.Z.. (Morris, Maria) (Entered: 03/26/2008)
307 MOTION for DISCOVERY Plaintiffs' Notice of Motion and Motion to Compel Production of Documents by L.H.. Attorney Huey, Shirley added. Motion Hearing set for 4/24/2008 at 10:00 AM in Courtroom 24 (GGH) before Magistrate Judge Gregory G. Hollows. (Huey, Shirley) (Entered: 03/27/2008)
308 EXHIBIT A to Declaration of William C. Kwong in Support of Defendants' Request for Extension of Time to Comply with the Court's Order Dated March 20, 2008 by Arnold Schwarzenegger, James E. Tilton, Kingston Bud Prunty, Bernard Warner, Dennis Dulay, John Monday, James Davis, Joyce Arredondo, Paul Chabot, Joseph Compton, Susan Melanson, Chuck Supple, CDCR, Juvenile Parole Board, Askia Abdulmajeed, Tomas Martinez re 304 Declaration,. (Kwong, William) (Entered: 03/27/2008)
309 STANDING 251 STIPULATED ORDER signed by Judge Gregory G. Hollows on 3/31/08. (Dillon, M) (Entered: 03/31/2008)
310 STIPULATION and ORDER signed by Magistrate Judge Gregory G. Hollows on 4/1/08 ORDERING that Motion Hearing for 290 Motion to Compel is continued to 4/10/2008 at 10:00 AM in Courtroom 24 (GGH) before Magistrate Judge Gregory G. Hollows.(Dillon, M) (Entered: 04/01/2008)
311 ORDER signed by Magistrate Judge Gregory G. Hollows on 3/31/08 ORDERING that dfts have to and including 4/3/08, within which to comply with this Court's discovery order dated 3/20/08. (Kastilahn, A) (Entered: 04/01/2008)
312 STIPULATION and Proposed Order Re: Continuing Hearing on Motion to Compel Production of Documents and Adequate Privilege Log by A.Z.. Attorney Huey, Shirley added. (Huey, Shirley) (Entered: 04/02/2008)
313 AMENDED MOTION to COMPEL Production of Documents and to Compel Compliance with the Sept. 21, 2007 Sanctions Order by plts. Motion Hearing set for 4/24/2008 at 10:00 AM in Courtroom 24 (GGH) before Magistrate Judge Gregory G. Hollows. (Laubach, Sarah) Modified on 4/4/2008 (Duong, D). (Entered: 04/03/2008)
314 MOTION to COMPEL Supplemental Discovery Responses and Production by plts. Motion Hearing set for 4/24/2008 at 10:00 AM in Courtroom 24 (GGH) before Magistrate Judge Gregory G. Hollows. (Morris, Maria) Modified on 4/4/2008 (Duong, D). (Entered: 04/03/2008)
315 MOTION to COMPEL Designation and Production of Deponents Pursuant to Fed. R. Civ. P. 30(b)(6) by plts. Motion Hearing set for 4/24/2008 at 10:00 AM in Courtroom 24 (GGH) before Magistrate Judge Gregory G. Hollows. (Huey, Shirley) Modified on 4/4/2008 (Duong, D). (Entered: 04/03/2008)
316 MEMORANDUM/RESPONSE in OPPOSITION re 294 MOTION to ENFORCE Court Orders and to Appoint a Special Master. (Kwong, William) Modified on 4/8/2008 (Duong, D). (Entered: 04/07/2008)
317 DECLARATION of Shelly Jones in Support of re 316 Memorandum/Response in Opposition to Motion. (Kwong, William) Modified on 4/8/2008 (Duong, D). (Entered: 04/07/2008)
318 DECLARATION of William C. Kwong in Support of re 316 Memorandum/Response in Opposition to Motion. (Attachments: # 1 Exhibit 1)(Kwong, William) Modified on 4/9/2008 (Duong, D). (Entered: 04/07/2008)

Case: 2:06-cv-2042 As of: 07/19/2015 05:31 PM PDT 43 of 70

04/07/2008 04/08/2008 04/08/2008 04/10/2008 04/10/2008 04/10/2008 04/10/2008
04/14/2008 04/14/2008 04/14/2008 04/16/2008 04/16/2008 04/16/2008 04/16/2008
04/17/2008 04/17/2008

319 PROPOSED ORDER Denying to plts' Motion to Enforce court orders and appoint a special master. (Kwong, William) Modified on 4/9/2008 (Duong, D). (Entered: 04/07/2008)
320 ORDER signed by Magistrate Judge Gregory G. Hollows on 4/8/08 ORDERING that the 312 Stipulation filed 4/4/08 cannot be signed.(Duong, D) (Entered: 04/08/2008)
321 AMENDED STIPULATION and PROPOSED ORDER For Continuation of Hearing re 290 MOTION to COMPEL Production of Improperly Withheld Documents and Adequate Privilege Log by R. C. (Morris, Maria) Modified on 4/9/2008 (Duong, D). (Entered: 04/08/2008)
322 MOTION for SANCTIONS for Defendants' Failure to Produce Documents in Violation of the Court's March 20, 2008 Order by A.Z., R. C.. Motion Hearing set for 4/24/2008 at 10:00 AM in Courtroom 24 (GGH) before Magistrate Judge Gregory G. Hollows. (Morris, Maria) (Entered: 04/10/2008)
323 DECLARATION of Maria V. Morris in Support Of re 322 MOTION for SANCTIONS for Defendants' Failure to Produce Documents in Violation of the Court's March 20, 2008 Order. (Morris, Maria) (Entered: 04/10/2008)
324 PROPOSED ORDER re 322 MOTION for SANCTIONS for Defendants' Failure to Produce Documents in Violation of the Court's March 20, 2008 Order by A.Z., R. C.. (Morris, Maria) (Entered: 04/10/2008)
325 AMENDED STIPULATION and ORDER signed by Magistrate Judge Gregory G. Hollows on 4/10/08 and agreed between the parties EXTENDING the time for the Joint Statement re the Motion to Compel to 4/17/08; and the Motion to Compel Hearing set for 4/24/2008 at 10:00 AM in Courtroom 24 (GGH) before Magistrate Judge Gregory G. Hollows.(Yin, K) (Entered: 04/10/2008)
326 REPLY BRIEF in support of Motion to Enforce Court Orders and Appoint a Special Master by plaintiff. (Grunfeld, Gay) Modified on 4/23/2008 (Marciel, M). (Entered: 04/14/2008)
327 REPLY DECLARATION of Maria V. Morris in support of Motion to Enforce Court Orders and Appoint a Special Master. (Morris, Maria) Modified on 4/23/2008 (Marciel, M). (Entered: 04/14/2008)
328 AMENDED PROPOSED ORDER granting plaintiffs' Motion to Enforce Court Orders and Appoint A Special Master by A.Z., L.H., M. N., R. C.. (Grunfeld, Gay) Modified on 4/23/2008 (Marciel, M). (Entered: 04/14/2008)
329 WITHDRAWAL of 315 MOTION to COMPEL Designation and Production of Deponents Pursuant to Fed. R. Civ. P. 30(b)(6) MOTION to COMPEL Designation and Production of Deponents Pursuant to Fed. R. Civ. P. 30(b)(6) by M. N.. Attorney Huey, Shirley added. (Huey, Shirley) (Entered: 04/16/2008)
330 WITHDRAWAL of 314 MOTION to COMPEL Supplemental Discovery Responses and Production by M. N.. (Huey, Shirley) (Entered: 04/16/2008)
331 STATEMENT of Plaintiffs' Mid−Litigation Statement by Plaintiff M. N.. (Huey, Shirley) (Entered: 04/16/2008)
332 STATEMENT of DEFENDANTS MID− LITIGATION STATEMENT by Defendants Arnold Schwarzenegger, James E. Tilton, Kingston Bud Prunty, Bernard Warner, Dennis Dulay, John Monday, James Davis, Joyce Arredondo, Paul Chabot, Joseph Compton, Susan Melanson, Chuck Supple, CDCR, Juvenile Parole Board, Askia Abdulmajeed, Tomas Martinez. (Fritz, Cynthia) (Entered: 04/16/2008)
333 DECLARATION of Cynthia C. Fritz in Support of Defendants' Opposition to 315 Plaintiffs' Motion to Compel (Fritz, Cynthia) Modified on 4/18/2008 (Waggoner, D). (Entered: 04/17/2008)
334 MEMORANDUM/RESPONSE in OPPOSITION to 322 MOTION for SANCTIONS .(McDonough, Timothy) Modified on 4/18/2008 (Waggoner, D). (Entered: 04/17/2008)

Case: 2:06-cv-2042 As of: 07/19/2015 05:31 PM PDT 44 of 70

04/17/2008 04/17/2008 04/17/2008
04/17/2008 04/17/2008 04/17/2008 04/17/2008
04/17/2008 04/17/2008 04/17/2008 04/17/2008 04/17/2008 04/17/2008 04/17/2008 04/21/2008

335 DECLARATION of Tim McDonough in Support of 334 Memorandum/Response in Opposition to Motion (Attachments: # 1 Exhibit A−D)(McDonough, Timothy) Modified on 4/18/2008 (Waggoner, D). (Entered: 04/17/2008)
336 DECLARATION of Shelly Jones in Support of 334 Memorandum/Response in Opposition to Motion. (McDonough, Timothy) Modified on 4/18/2008 (Waggoner, D). (Entered: 04/17/2008)
337 PROPOSED ORDER Denying Plaintiffs' Motion for Discovery Sanctions re 334 Memorandum/Response in Opposition to Motion, by James E. Tilton, Kingston Bud Prunty, Bernard Warner, Dennis Dulay, John Monday, James Davis, Joyce Arredondo, Paul Chabot, Joseph Compton, Susan Melanson, Chuck Supple, CDCR, Juvenile Parole Board, Askia Abdulmajeed, Tomas Martinez. (McDonough, Timothy) (Entered: 04/17/2008)
338 DECLARATION of Sarah M. Laubach in Support Of re 313 AMENDED MOTION to COMPEL Production of Documents and to Compel Compliance with the Sept. 21, 2007 Sanctions Order. (Laubach, Sarah) (Entered: 04/17/2008)
339 PROPOSED ORDER re 313 AMENDED MOTION to COMPEL Production of Documents and to Compel Compliance with the Sept. 21, 2007 Sanctions Order by L.H., M. N., R. C.. (Laubach, Sarah) (Entered: 04/17/2008)
340 PROPOSED ORDER re 290 MOTION to COMPEL Production of Improperly Withheld Documents and Adequate Privilege Log by M. N.. (Laubach, Sarah) (Entered: 04/17/2008)
341 DECLARATION of Maria V. Morris in Support Of re 290 MOTION to COMPEL Production of Improperly Withheld Documents and Adequate Privilege Log. (Attachments: # 1 Exhibit A−1, # 2 Exhibit A−2, # 3 Exhibit A−3, # 4 Exhibit A−4, # 5 Exhibit A−5, # 6 Exhibit A−6, # 7 Exhibit A−7, # 8 Exhibit A−8, # 9 Exhibit A−9, # 10 Exhibit A−10)(Morris, Maria) (Entered: 04/17/2008)
342 EXHIBIT A−11 to A−20 to Morris Declaration by L.H., M. N., R. C. re 341 Declaration,. (Attachments: # 1 Exhibit A−12, # 2 Exhibit A−13, # 3 Exhibit A−14, # 4 Exhibit A−15, # 5 Exhibit A−16, # 6 Exhibit A−17, # 7 Exhibit A−18, # 8 Exhibit A−19, # 9 Exhibit A−20)(Morris, Maria) (Entered: 04/17/2008)
343 EXHIBIT B−C and D−0 to D−9 to Morris Declaration by L.H., M. N., R. C. re 341 Declaration,. (Attachments: # 1 Exhibit D−0, # 2 Exhibit D−1, # 3 Exhibit D−2, # 4 Exhibit D−3, # 5 Exhibit D−4, # 6 Exhibit D−5, # 7 Exhibit D−6, # 8 Exhibit D−7, # 9 Exhibit D−8, # 10 Exhibit D−9)(Morris, Maria) (Entered: 04/17/2008)
344 EXHIBIT D−10 to D−18 to Morris Declaration by L.H., M. N., R. C. re 341 Declaration,. (Attachments: # 1 Exhibit D−11, # 2 Exhibit D−12, # 3 Exhibit D−13, # 4 Exhibit D−14, # 5 Exhibit D−15, # 6 Exhibit D−16, # 7 Exhibit D−17, # 8 Exhibit D−18)(Morris, Maria) (Entered: 04/17/2008)
345 EXHIBIT E to O and P−1 to P−6 to Morris Declaration by L.H., M. N., R. C. re 341 Declaration,. (Attachments: # 1 Exhibit P−1, # 2 Exhibit P−2, # 3 Exhibit P−3, # 4 Exhibit P−4, # 5 Exhibit P−5, # 6 Exhibit P−6)(Morris, Maria) (Entered: 04/17/2008)
346 EXHIBIT P−7 to P−15 to Morris Declaration by L.H., M. N., R. C. re 341 Declaration,. (Attachments: # 1 Exhibit P−8, # 2 Exhibit P−9, # 3 Exhibit P−10, # 4 Exhibit P−11, # 5 Exhibit P−12, # 6 Exhibit P−13, # 7 Exhibit P−14, # 8 Exhibit P−15)(Morris, Maria) (Entered: 04/17/2008)
347 JOINT STATEMENT re 290 MOTION to COMPEL Production of Improperly Withheld Documents and Adequate Privilege Log. (Morris, Maria) Modified on 4/18/2008 (Waggoner, D). (Entered: 04/17/2008)
348 JOINT STATEMENT re 313 AMENDED MOTION to COMPEL Production of Documents and to Compel Compliance with the Sept. 21, 2007 Sanctions Order. (Laubach, Sarah) Modified on 4/18/2008 (Waggoner, D). (Entered: 04/17/2008)
349 REPLY to RESPONSE to MOTION re 322 MOTION for SANCTIONS for Defendants' Failure to Produce Documents in Violation of the Court's March 20, 2008 Order. (Morris, Maria) (Entered: 04/21/2008)

Case: 2:06-cv-2042 As of: 07/19/2015 05:31 PM PDT 45 of 70

04/21/2008 04/21/2008
04/24/2008 04/24/2008
04/24/2008 04/25/2008
04/29/2008 04/30/2008 05/02/2008 05/12/2008

350 DECLARATION of Maria V. Morris in Support of re 322 MOTION for SANCTIONS for Defendants' Failure to Produce Documents in Violation of the Court's March 20, 2008 Order. Reply Declaration (Morris, Maria) (Entered: 04/21/2008)
353 MINUTES (Text Only) for proceedings held before Senior Judge Lawrence K. Karlton: MOTION HEARING held on 4/21/2008 re 294 MOTION to Enforce Court Orders and to Appoint a Special Master filed by Plaintiffs. After oral argument, the Motion to Appoint a Special Master is GRANTED. The Court will appoint Chase Riveland as Special Master and Virginia Morrison as deputy Master. Plaintiff shall prepare a formal order within 5 days. defense objections, if any, due within 5 days. Plaintiffs Counsel Gay Grunfeld, Michael Bien present. Defendants Counsel William Kwong, Tim McDonough present. Court Reporter: C. Bodene. (Rivas, A) (Entered: 04/24/2008)
351 PROPOSED ORDER Proposed Order of Reference to Special Master Chase Riveland by L.H.. (Huey, Shirley) (Entered: 04/24/2008)
352 MINUTES (Text Only) for proceedings held before Magistrate Judge Gregory G. Hollows: MOTION HEARING held on 4/24/2008 re 315 MOTION to COMPEL Designation and Production of Deponents Pursuant to Fed. R. Civ. P. 30(b)(6) MOTION to COMPEL Designation and Production of Deponents Pursuant to Fed. R. Civ. P. 30(b)(6) filed by A.Z., 307 MOTION for DISCOVERY Plaintiffs' Notice of Motion and Motion to Compel Production of Documents filed by L.H., 314 MOTION to COMPEL Supplemental Discovery Responses and Production filed by A.Z., 313 AMENDED MOTION to COMPEL Production of Documents and to Compel Compliance with the Sept. 21, 2007 Sanctions Order filed by A.Z. The Motions are submitted and the court will issue an order. Plaintiffs Counsel Maria V. Morris and Sarah Laubach present. Defendants Counsel Cynthia Clark Fritz and Shelly Jones present. Court Reporter/CD Number: 1 of 1. (Callen, V) (Entered: 04/24/2008)
354 DECLARATION of Sarah M. Laubach Supplemental Declaration in In Support Of re 313 AMENDED MOTION to COMPEL Production of Documents and to Compel Compliance with the Sept. 21, 2007 Sanctions Order. (Laubach, Sarah) (Entered: 04/24/2008)
355 ORDER signed by Magistrate Judge Gregory G. Hollows on 4/25/08. ORDERING that By April 30, 2008, dfts shall produce all documents listed on their privilege log, objections for which were deliberative process, official information, and/or privacy, to the extent that these claims of privilege were the sole basis for documents being listed on the privilege log. All documents which have not heretofore been produced in their native format or other reasonably usable form, shall be produced in one of those formats by April 30, 2008. Defendants are directed to apply the definition of reasonably usable form as explained in the Advisory Committee Notes to Rule 34, subdivision (b).2 Any documents not yet produced in response to plaintiffs third request for production of documents shall be produced by April 30, 2008. Defendants shall produce a final omnibus privilege log by April 30, 2008; documents which have been produced shall not be listed on this log.(Mena−Sanchez, L) (Entered: 04/25/2008)
356 OBJECTIONS by dfts to 351 Proposed Order of Reference to Special Master Chase Riveland. (Kwong, William) Modified on 4/30/2008 (Duong, D). (Entered: 04/29/2008)
357 TRANSCRIPT of Motion to Enforce court orders and Appoint a special master held on 4/21/08 before Judge Lawrence K. Karlton. Court Reporter: C. Bodene. (TEXT ONLY) (Duong, D) (Entered: 05/01/2008)
358 ORDER signed by Magistrate Judge Gregory G. Hollows on 5/1/08: Plaintiffs' October 5, 2007 request for fees and costs is granted in part in the amount of $58,227.15 205 . Defendants shall pay plaintiffs this amount within 45 days of this order. (Kaminski, H) (Entered: 05/02/2008)
359 NOTICE OF LODGING DOCUMENT IN PAPER by M. N.: Deposition Transcripts Lodged with court pursuant to 5−133(j). (Huey, Shirley) (Received on 5/12/08 and routed to file room) Modified on 5/12/2008 (Yin, K). (Entered: 05/12/2008)

Case: 2:06-cv-2042 As of: 07/19/2015 05:31 PM PDT 46 of 70

05/12/2008 05/13/2008 05/14/2008
05/14/2008 05/16/2008 05/16/2008 05/16/2008 05/16/2008 05/16/2008 05/16/2008 05/16/2008 05/16/2008 05/17/2008 05/17/2008 05/18/2008 05/18/2008

360 NOTICE OF LODGING DOCUMENT IN PAPER by M. N.: Notice of Filing Sealed Document Lodged with court pursuant to LR 39−141. (Huey, Shirley) (Received on 5/12/08 and routed to GGH) Modified on 5/12/2008 (Yin, K). (Entered: 05/12/2008)
361 NOTICE OF LODGING DOCUMENT IN PAPER by M. N.: Deposition Transcript Under Seal Lodged with Court pursuant to LR 5−133(j) and 39−141. (Huey, Shirley) (document received and routed to Vault on 5/14/08) Modified on 5/16/2008 (Marciel, M). (Entered: 05/13/2008)
362 ORDER signed by Magistrate Judge Gregory G. Hollows on 5/14/08 ORDERING that plaintiffs' 322 motion for sanctions, filed April 10, 2008, is GRANTED. Plaintiffs' 290 313 motion to compel production of documents and compliance with the September 21, 2007 sanctions order, filed April 3, 2008, is GRANTED IN PART and DENIED IN PART. (Duong, D) (Entered: 05/14/2008)
363 TRANSCRIPT of Hearing re: Plaintiff's Motion to Compel Production of Documents and Motion for Sanctions held on 4/24/08, before Magistrate Judge Gregory G. Hollows. (TEXT ONLY − MAINTAINED ON PAPER.) (Schultz, C) (Entered: 05/14/2008)
364 STATUS REPORT by Arnold Schwarzenegger, James E. Tilton, Kingston Bud Prunty, Bernard Warner, Dennis Dulay, John Monday, James Davis, Joyce Arredondo, Paul Chabot, Joseph Compton, Susan Melanson, Chuck Supple, CDCR. (Kwong, William) (Entered: 05/16/2008)
365 DECLARATION of Michael Brady in Support of re 364 Status Report. (Kwong, William) (Entered: 05/16/2008)
366 DECLARATION of Shelly Jones in Support of re 364 Status Report. (Attachments: # 1 Exhibit A to D)(Kwong, William) (Entered: 05/16/2008)
367 MOTION for SUMMARY JUDGMENT And Permanent Injunction Regarding Attorney Appointment For Juvenile Parolees by L.H., M. N., R. C.. Motion Hearing set for 6/16/2008 at 10:00 AM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. (Grunfeld, Gay) (Entered: 05/16/2008)
368 NOTICE OF FILING / LODGING DOCUMENT IN PAPER by L.H., M. N., R. C.: Notice of Filing Sealed Documents Filed with court pursuant to 39−141. (Grunfeld, Gay) (Entered: 05/16/2008)
369 NOTICE OF FILING / LODGING DOCUMENT IN PAPER by L.H., M. N., R. C.: Notice of Lodging Deposition Transcript Lodged with court pursuant to 5−133(j). (Grunfeld, Gay) (Entered: 05/16/2008)
370 REQUEST for Judicial Notice by L.H., M. N., R. C.. (Attachments: # 1 Exhibit B−C, # 2 Exhibit D)(Grunfeld, Gay) (Entered: 05/16/2008)
371 DECLARATION of Gay Crosthwait Grunfeld in Support Of. Plaintiffs' Motions for Remedial Order, Partial Summary Judgment, and Permanent Injunction (Attachments: # 1 Exhibit A−G, # 2 Exhibit H−L, # 3 Exhibit M−S, # 4 Exhibit T−Z, # 5 Exhibit AA−FF)(Grunfeld, Gay) (Entered: 05/16/2008)
372 MEMORANDUM/RESPONSE in SUPPORT re 367 MOTION for SUMMARY JUDGMENT And Permanent Injunction Regarding Attorney Appointment For Juvenile Parolees. (Laubach, Sarah) (Entered: 05/17/2008)
373 STATEMENT of Undisputed Facts In Support Of Motion For Partial Summary Judgment And A Permanent Injunction Regarding Attorney Appointment by Plaintiffs L.H., M. N., R. C.. (Laubach, Sarah) (Entered: 05/17/2008)
374 MOTION for SUMMARY JUDGMENT Regarding Defendants' Routine Use of Mechanical Restraints by M. N.. Motion Hearing set for 6/16/2008 at 10:00 AM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. (Huey, Shirley) (Entered: 05/18/2008)
375 STATEMENT of Undisputed Facts by Plaintiff M. N. re 374 motion for summary judgment. (Morris, Maria) Modified on 5/20/2008 (Manzer, C). (Entered: 05/18/2008)

Case: 2:06-cv-2042 As of: 07/19/2015 05:31 PM PDT 47 of 70

05/18/2008 05/18/2008 05/18/2008 05/18/2008 05/18/2008 05/19/2008 05/19/2008
05/19/2008 05/19/2008
05/19/2008 05/19/2008 05/19/2008
05/19/2008 05/19/2008 05/19/2008 05/19/2008 05/20/2008 05/20/2008 05/22/2008

376 MEMORANDUM/RESPONSE in SUPPORT of 374 motion for summary judgment. (Morris, Maria) Modified on 5/20/2008 (Manzer, C). (Entered: 05/18/2008)
377 PROPOSED ORDER re 374 motion for summary judgment. (Morris, Maria) Modified on 5/20/2008 (Manzer, C). (Entered: 05/18/2008)
378 MOTION for Remedial Order by M. N.. Motion Hearing set for 6/16/2008 at 10:00 AM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. (Grunfeld, Gay) (Entered: 05/18/2008)
379 MEMORANDUM/RESPONSE in SUPPORT re 378 MOTION for Remedial Order. (Grunfeld, Gay) (Entered: 05/18/2008)
380 PROPOSED ORDER re 378 MOTION for Remedial Order. (Grunfeld, Gay) (Entered: 05/18/2008)
381 STATEMENT by Plaintiff M. N.. Glossary of Terms Used in Plaintiffs' Motions for Remedial Order, Partial Summary Judgment and Permanent Injunction (Huey, Shirley) (Entered: 05/19/2008)
382 REQUEST for JUDICIAL NOTICE by M. N.. In Support of Plaintiffs' Motion for Partial Summary Judgment and a Permanent Injunction for Disability Accommodations and Effective Communication in All Parole Revocation Proceedings (Huey, Shirley) (Entered: 05/19/2008)
383 DECLARATION of Maria V. Morris in Support of. Plaintiffs' Motions for Remedial Order, Partial Summary Judgment and For a Permanent Injunction Regarding Appeals of Parole Revocation (Huey, Shirley) (Entered: 05/19/2008)
384 MOTION for SUMMARY JUDGMENT Requiring Defendants to Comply with Due Process and the ADA in the Revocation Appeals Process by M. N.. Motion Hearing set for 6/16/2008 at 10:00 AM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. (Laubach, Sarah) (Entered: 05/19/2008)
385 PROPOSED ORDER re 384 motion for summary judgment. (Laubach, Sarah) Modified on 5/20/2008 (Manzer, C). (Entered: 05/19/2008)
386 MEMORANDUM/RESPONSE in SUPPORT of 384 motion for summary judgment. (Laubach, Sarah) Modified on 5/20/2008 (Manzer, C). (Entered: 05/19/2008)
387 MOTION for SUMMARY JUDGMENT and Permanent Injunction for Disability Accommodations and Effective Communication in All Parole Revocation Proceedings by M. N.. Motion Hearing set for 6/16/2008 at 10:00 AM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. (Grunfeld, Gay) (Entered: 05/19/2008)
388 STATEMENT of Undisputed Facts by Plaintiff M. N. re 387 motion for summary judgment. (Grunfeld, Gay) Modified on 5/20/2008 (Manzer, C). (Entered: 05/19/2008)
389 STATEMENT of Undisputed Facts by Plaintiffs L.H., M. N., R. C. re 384 motion for summary judgment. (Laubach, Sarah) Modified on 5/20/2008 (Manzer, C). (Entered: 05/19/2008)
390 MEMORANDUM/RESPONSE in SUPPORT of 387 motion for summary judgment. (Grunfeld, Gay) Modified on 5/20/2008 (Manzer, C). (Entered: 05/19/2008)
391 PROPOSED ORDER re 367 motion for summary judgment, 387 motion for summary judgment. (Grunfeld, Gay) Modified on 5/20/2008 (Manzer, C). (Entered: 05/19/2008)
392 CERTIFICATE of SERVICE by M. N. re 390 Memorandum/Response in Support of Motion, 389 Statement − R, 388 Statement − R, 386 Memorandum/Response in Support of Motion. (Huey, Shirley) (Entered: 05/20/2008)
393 CERTIFICATE of SERVICE by M. N.. (Huey, Shirley) (Entered: 05/20/2008)
394 ORDER signed by Senior Judge Lawrence K. Karlton on 5/21/2008 ORDERING 351 that the Special Master shall be Chase Riveland with Virginia Morrison to serve as Deputy Special Master. The Special Master shall have duties listed in this order.(Reader, L) (Entered: 05/22/2008)

Case: 2:06-cv-2042 As of: 07/19/2015 05:31 PM PDT 48 of 70

05/27/2008
05/29/2008
05/29/2008
05/29/2008 05/30/2008 05/30/2008 05/30/2008 06/03/2008
06/03/2008 06/03/2008 06/03/2008 06/03/2008 06/04/2008
06/04/2008

395 ORDER signed by Senior Judge Lawrence K. Karlton on 05/23/08 ORDERING the plfs to inform the court w/i 5 days whether they intend to withdraw any or allof their pending motions and seek their resolution by the Special Master, or whether the motions are of a nature that requires resolution by the court. (Benson, A) (Entered: 05/27/2008)
396 DECLARATION of Michael W. Bien in Support Of Plaintiffs' Application For Monetary Sanctions Pursuant to May 14, 2008 Order re 322 MOTION for SANCTIONS for Defendants' Failure to Produce Documents in Violation of the Court's March 20, 2008 Order, 290 MOTION to COMPEL Production of Improperly Withheld Documents and Adequate Privilege Log. (Bien, Michael) (Entered: 05/29/2008)
397 DECLARATION of Sanford Jay Rosen in Support Of Plaintiffs' Application for Monetary Sanctions Pursuant to May 14, 2008 Order re 322 MOTION for SANCTIONS for Defendants' Failure to Produce Documents in Violation of the Court's March 20, 2008 Order, 290 MOTION to COMPEL Production of Improperly Withheld Documents and Adequate Privilege Log. (Bien, Michael) (Entered: 05/29/2008)
398 PROPOSED ORDER re 396 , 397 . Granting Plaintiffs' Application For Monetary Sanctions Pursuant To May 14, 2008 Order (Bien, Michael) (Entered: 05/29/2008)
399 CERTIFICATE of SERVICE by R. C. re 398 Proposed Order − R, 396 , 397 . (Morris, Maria) (Entered: 05/30/2008)
400 REPLY/RESPONSE to Court's Order of May 27, 2008 by L.H., M. N., R. C. re 395 Order,. (Grunfeld, Gay) (Entered: 05/30/2008)
401 PROPOSED ORDER Referring Plaintiffs' Motions to Special Master for Informal Meet and Confer re 400 Reply/Response by L.H., M. N., R. C.. (Grunfeld, Gay) (Entered: 05/30/2008)
402 ORDER signed by Senior Judge Lawrence K. Karlton on 6/2/2008 ORDERING that 387 Motion for Summary Judgment and 367 Motion for Summary Judgment shall be referred to Special Master Riveland for informal meet and confer dispute resolution to be completed no later than 6/30/2008. The motions shall be taken off of the Court's 6/16/2008 calendar and continued to 7/25/2008 at 10:00 AM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. (Matson, R) Modified on 6/4/2008 (Matson, R). (Entered: 06/03/2008)
403 OBJECTIONS by dfts to Plaintiffs' 322 Application for Monetary Sanctions Pursuant to May 14, 2008 Order re 396 , 397 . (Kwong, William) Modified on 6/4/2008 (Duong, D). (Entered: 06/03/2008)
404 DECLARATION of William C. Kwong in Support of re 403 Objections,. (Attachments: # 1 Exhibit A)(Kwong, William) (Entered: 06/03/2008)
405 PROPOSED ORDER Denying Plaintiffs' Motion for Partial Summary Judgment Regarding Due Process and the ADA in the Revocation Appeals Process re 403 Objections by dfts. (Kwong, William) Modified on 6/4/2008 (Duong, D). (Entered: 06/03/2008)
406 PROPOSED ORDER Denying plts' Application for moneytary sanctions re 396 by dfts (Kwong, William) Modified on 6/4/2008 (Duong, D). (Entered: 06/03/2008)
407 ORDER signed by Senior Judge Lawrence K. Karlton on 6/3/08. 378 Motion for Remedial Order and 374 384 Motions for Summary Judgment Hearing RE−SET for 6/30/2008 at 10:00 AM in Courtroom 4 (LKK). The Briefing Schedule remains in accordance with Local Rule 78−230. (Marciel, M) Modified on 6/4/2008 (Marciel, M). (Entered: 06/04/2008)
408 CLERK'S NOTICE of DOCKET CORRECTION: 387 Motion for Summary Judgment and 367 Motion for Summary Judgment and Permanent Injunction are REFERRED to Special Master Riveland and these motion hearings are RESET for 7/25/2008 at 10:00 AM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton pursuant to 402 Order. (Matson, R) (Entered: 06/04/2008)

Case: 2:06-cv-2042 As of: 07/19/2015 05:31 PM PDT 49 of 70

06/04/2008 06/04/2008 06/13/2008 06/13/2008 06/13/2008 06/16/2008
06/17/2008
06/20/2008
07/02/2008 07/02/2008 07/02/2008 07/03/2008 07/25/2008

409 CLERK'S NOTICE of DOCKET CORRECTION: text for 407 Order to Re−Set Hearing included wrong document(s) − 374 384 Motions for Summary Judgment and 378 Motion for Remedial Order is CONTINUED to 6/30/2008 at 10:00 AM in Courtroom 4 (LKK) before Judge Lawrence K. Karlton. (Marciel, M) (Entered: 06/04/2008)
410 REPLY/RESPONSE to Defendants' 403 Objections to Plaintiffs' Application for Monetary Sanctions by R. C. re 404 396 , 397 Declarations . (Morris, Maria) Modified on 6/5/2008 (Duong, D). (Entered: 06/04/2008)
411 STIPULATED MOTION Preliminary Approval Of Class Action Settlement And Order Shortening Time To Hear The Motion . Motion Hearing set for 6/16/2008 at 10:00 AM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. (Holtz, Geoffrey) Modified on 6/16/2008 (Duong, D). (Entered: 06/13/2008)
412 DECLARATION of Gay Crosthwait Grunfeld in SUPPORT OF re 411 Stipulated MOTION Preliminary Approval Of Class Action Settlement And Order Shortening Time To Hear The Motion. (Attachments: # 1 Exhibit A − Complaint, # 2 Exhibit B − Stipulated Injunction, # 3 Exhibit C − Notice to Class)(Holtz, Geoffrey) Modified on 6/16/2008 (Duong, D). (Entered: 06/13/2008)
413 PROPOSED ORDER re 411 MOTION Preliminary Approval Of Class Action Settlement And Order Shortening Time To Hear The Motion. (Holtz, Geoffrey) Modified on 6/16/2008 (Duong, D). (Entered: 06/13/2008)
414 MINUTES (Text Only) for proceedings held before Senior Judge Lawrence K. Karlton: MOTION HEARING held on 6/16/2008 re 411 MOTION Preliminary Approval Of Class Action Settlement And Order Shortening Time To Hear The Motion filed by D.R., D.K., R.C., M.N., A.Z., L.H.. Motion to be approved. Court order to issue. Plaintiffs Counsel Michael Bien, Corene Kendrick, Briana Rosenbaum present. Defendants Counsel William Kwong present. Court Reporter: T. Bocinski (Diamond Court Reporters). (Rivas, A) (Entered: 06/16/2008)
415 ORDER signed by Senior Judge Lawrence K. Karlton on 6/16/08: Final approval hearing set for 10/6/2008 at 10:00 AM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. The Pretrial Conference currently set for September 29, 2008 and Trial currently set for January 6, 2009 are VACATED. All motion hearings currently set for June 30, 2008 and July 25, 2008 are VACATED. (Kaminski, H) (Entered: 06/17/2008)
416 ORDER signed by Senior Judge Lawrence K. Karlton on 06/20/08 ordering that Special Master Chase Riveland shall be compensated at the rate of $200 per hour for services performed in accordance with the Order of Reference excepet that he shall be compensated at the rate of $90 per hour travel time. Pursuant to the order of reference, the special master's fees and expenses shall be borne by the defendants. Defendants are hereby ordered to deposit within 30 days of the date of the order, the sum of $500,000 with the clerk of this court as interim payment of costs. (See order for further details)(Plummer, M) (Entered: 06/20/2008)
417 EX PARTE REQUEST for Modification Of Order For Special Master Compensation by dfts. (McDonough, Timothy) Modified on 7/3/2008 (Duong, D). (Entered: 07/02/2008)
418 DECLARATION of Tim McDonough in Support Of re 417 Ex Parte Request for Modification Special Master Compensation . (McDonough, Timothy) Modified on 7/3/2008 (Duong, D). (Entered: 07/02/2008)
419 PROPOSED ORDER Granting 417 Ex Parte Request for Modification of special master compensation by dfts. (McDonough, Timothy) Modified on 7/3/2008 (Duong, D). (Entered: 07/02/2008)
420 ORDER signed by Senior Judge Lawrence K. Karlton on 7/2/2008 GRANTING 417 REQUEST for Dfts' Ex−Parte Request For Modification Of Order For Special Master Compensation. (Matson, R) (Entered: 07/03/2008)
421 DECLARATION of. Shelly Jones Affirming That Defendants Have Published Notice Of Class Action As Directed By The Court's Order (McDonough, Timothy) (Entered: 07/25/2008)

Case: 2:06-cv-2042 As of: 07/19/2015 05:31 PM PDT 50 of 70

08/04/2008
09/02/2008 09/03/2008 09/10/2008 09/11/2008 09/12/2008 09/15/2008 09/15/2008 09/22/2008
09/22/2008 09/22/2008 09/22/2008 10/03/2008 10/03/2008
10/06/2008
10/07/2008

422 ORDER signed by Senior Judge Lawrence K. Karlton on 8/4/2008 ORDERING 394 The Clerk is directed to pay to Chase Riveland, L.H. Special Master the amount of $18,744.57 in accordance with the attached statement; and a copy of this order shall be served on the financial department of this court. (Reader, L) (Entered: 08/04/2008)
423 LETTER from Jose M. Luis re settlement. (Kaminski, H) (Entered: 09/03/2008)
424 ORDER signed by Senior Judge Lawrence K. Karlton on 9/2/08 ORDERING that the clerk is directed to pay to Chase Riveland, L.H. Special Master, the amount of $10,171.90. (cc Financial)(Dillon, M) (Entered: 09/03/2008)
425 LETTER re the California Youth Authority's custody and care of Cody Alan Bartos by Kelly Mitchell. (Becknal, R) (Entered: 09/11/2008)
426 LETTER from Donovan Conner informing the court of his parole problems. (Streeter, J) (Entered: 09/12/2008)
427 LETTER from Monica Arias regarding settlement of class action−parole revocation matter. (Streeter, J) (Entered: 09/15/2008)
428 NOTICE by Markese Williams expressing his thoughts re the new changes to the parole system. (Kastilahn, A). Modified on 9/19/2008 (Kastilahn, A). (Entered: 09/17/2008)
429 NOTICE re parole denial by Annette Glover, an interested party to this action. (Kastilahn, A) (Entered: 09/17/2008)
430 JOINT MOTION Final Approval of Class Action Settlement by A.Z., D.K., D.R., L.H., M. N., R. C. Motion Hearing set for 10/6/2008 at 10:00 AM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. (Holtz, Geoffrey) Modified on 9/23/2008 (Reader, L). (Entered: 09/22/2008)
431 [DISREGARD DUPLICATE SEE 432 ] DECLARATION of Gay Crosthwait Grunfeld in SUPPORT OF 430 MOTION Final Approval of Class Action Settlement. (Holtz, Geoffrey) Modified on 9/23/2008 (Reader, L). (Entered: 09/22/2008)
432 DECLARATION of Gay Crosthwait Grunfeld in SUPPORT OF 430 MOTION Final Approval of Class Action Settlement. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Holtz, Geoffrey) (Entered: 09/22/2008)
433 PROPOSED ORDER Granting 430 JOINT MOTION For Final Approval of Class Action Settlement by A.Z., D.K., D.R., L.H., M. N., R. C. (Holtz, Geoffrey) Modified on 9/23/2008 (Reader, L). (Entered: 09/22/2008)
434 STIPULATION and PROPOSED ORDER re Motion for Attorneys' Fees by L.H.. Attorney Stewart, Loren Grey added. (Stewart, Loren) Modified on 10/6/2008 (Kaminski, H). (Entered: 10/03/2008)
435 ORDER signed by Senior Judge Lawrence K. Karlton on 10/2/2008 ORDERING 434 that the Clerk is directed to pay to Chase Riveland, L.H. Special Master the amount of $4,483.68 in accordance with the attached statement; and a copy of this order shall be served on the financial department of this court. (Reader, L) (Entered: 10/03/2008)
436 MINUTES (Text Only) for proceedings held before Senior Judge Lawrence K. Karlton: MOTION HEARING held on 10/6/2008 re 430 JOINT MOTION Final Approval of Class Action Settlement filed by D.R., D.K., R. C., M. N., A.Z., L.H.. Hearing no objections, the settlement will be approved. Court order to follow. Plaintiffs Counsel Gay Grunfeld, Michael Bien, Corene Kendrick, Geoffrey Holtz present. Defendants Counsel William Kwong present. Court Reporter: C. Bodene. (Rivas, A) (Entered: 10/06/2008)
437 STIPULATION and ORDER signed by Senior Judge Lawrence K. Karlton on 10/6/08 ORDERING that plaintiffs' motion for attorneys' fees and expenses shall be moved to 12/8/2008 at 10:00 AM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. The filing and service dates for the motion, opposition, and reply pleadings shall remain as set forth in the 415 June 17, 2008 Order. (Duong, D) (Entered: 10/07/2008)

Case: 2:06-cv-2042 As of: 07/19/2015 05:31 PM PDT 51 of 70

10/07/2008 10/07/2008 10/20/2008
10/20/2008 10/20/2008 10/20/2008 10/20/2008
10/20/2008 10/20/2008 10/20/2008 10/20/2008 10/20/2008 10/20/2008 10/20/2008 10/20/2008 10/20/2008 10/20/2008

438 STIPULATION and ORDER for Permanent Injunctive Relief signed by Senior Judge Lawrence K. Karlton on 10/7/08. Defendant, their agents, employees, and successors in office shall comply with all terms stated in text. (Marciel, M) (Entered: 10/07/2008)
439 ORDER signed by Senior Judge Lawrence K. Karlton on 10/7/08 GRANTING 430 Joint Motion for Final Approval of Class Action Settlement. (Marciel, M) (Entered: 10/07/2008)
440 MOTION for ATTORNEY FEES to Establish Periodic Fees Process by M. N. Motion Hearing set for 12/8/2008 at 10:00 AM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. (Grunfeld, Gay) Modified on 10/21/2008 (Reader, L). (Entered: 10/20/2008)
441 DECLARATION of Gay Crosthwait Grunfeld in Support of 440 MOTION for ATTORNEY FEES to Establish Periodic Fees Process. (Grunfeld, Gay) Modified on 10/21/2008 (Reader, L). (Entered: 10/20/2008)
442 MEMORANDUM OF POINTS AND AUTHORITIES by M. N. in SUPPORT of 440 MOTION for ATTORNEY FEES to Establish Periodic Fees Process. (Grunfeld, Gay) Modified on 10/21/2008 (Reader, L). (Entered: 10/20/2008)
443 PROPOSED ORDER Establishing Periodic Process for Collection of Attorneys' Fees and Costs. 440 (Grunfeld, Gay) Modified on 10/21/2008 (Reader, L). (Entered: 10/20/2008)
444 MOTION for ATTORNEY FEES Expenses, and Costs Through Settlement Execution Date by L.H.. Motion Hearing set for 12/8/2008 at 10:00 AM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. (Stewart, Loren) Modified on 10/21/2008 (Reader, L). (Entered: 10/20/2008)
445 DECLARATION of Geoffrey T. Holtz in Support of 444 MOTION for ATTORNEY FEES Expenses, and Costs Through Settlement Execution Date. (Stewart, Loren) Modified on 10/21/2008 (Reader, L). (Entered: 10/20/2008)
446 DECLARATION of Susan L. Burrell in Support of 444 MOTION for ATTORNEY FEES Expenses, and Costs Through Settlement Execution Date. (Stewart, Loren) Modified on 10/21/2008 (Reader, L). (Entered: 10/20/2008)
447 DECLARATION of Jeff Adachi in Support of 444 MOTION for ATTORNEY FEES Expenses, and Costs Through Settlement Execution Date. (Stewart, Loren) Modified on 10/21/2008 (Reader, L). (Entered: 10/20/2008)
448 DECLARATION of Mark A. Chavez in Support of 444 MOTION for ATTORNEY FEES Expenses, and Costs Through Settlement Execution Date. (Stewart, Loren) Modified on 10/21/2008 (Reader, L). (Entered: 10/20/2008)
449 DECLARATION of Linda M. Dardarian in Support of 444 MOTION for ATTORNEY FEES Expenses, and Costs Through Settlement Execution Date. (Stewart, Loren) Modified on 10/21/2008 (Reader, L). (Entered: 10/20/2008)
450 DECLARATION of Joshua Konecky in Support of 444 MOTION for ATTORNEY FEES , Expenses, and Costs Through Settlement Execution Date. (Stewart, Loren) (Entered: 10/20/2008)
451 DECLARATION of Daniel S. Mason in Support of 444 MOTION for ATTORNEY FEES , Expenses, and Costs Through Settlement Execution Date. (Stewart, Loren) (Entered: 10/20/2008)
452 DECLARATION of Richard M. Pearl in Support of 444 MOTION for ATTORNEY FEES , Expenses, and Costs Through Settlement Execution Date. (Stewart, Loren) (Entered: 10/20/2008)
453 DECLARATION of Sanford Jay Rosen in Support of 444 MOTION for ATTORNEY FEES , Expenses, and Costs Through Settlement Execution Date. (Stewart, Loren) (Entered: 10/20/2008)
454 DECLARATION of Sidney M. Wolinsky in Support of 444 MOTION for ATTORNEY FEES , Expenses, and Costs Through Settlement Execution Date. (Stewart, Loren) (Entered: 10/20/2008)

Case: 2:06-cv-2042 As of: 07/19/2015 05:31 PM PDT 52 of 70

10/20/2008 10/20/2008 10/20/2008 10/20/2008 11/04/2008 11/04/2008
11/05/2008 11/07/2008 11/07/2008 11/07/2008 11/07/2008 11/07/2008 11/07/2008 11/12/2008

455 DECLARATION of Gay Crosthwait Grunfeld & Exs. A−W in Support of 444 MOTION for ATTORNEY FEES , Expenses, and Costs Through Settlement Execution Date. (Attachments: # 1 Exhibit X, # 2 Exhibit Y, # 3 Exhibit Z, # 4 Exhibit AA−BB)(Stewart, Loren) (Entered: 10/20/2008)
456 MEMORANDUM OF POINTS AND AUTHORITIES by L.H. in SUPPORT of 444 MOTION for ATTORNEY FEES Expenses, and Costs Through Settlement Execution Date. (Stewart, Loren) Modified on 10/21/2008 (Reader, L). (Entered: 10/20/2008)
457 PROPOSED ORDER Granting Plaintiffs' Motion for Reasonable Attorneys' Fees, Expenses, and Costs Through Settlement Execution Date re 444 MOTION for ATTORNEY FEES , Expenses, and Costs Through Settlement Execution Date. (Stewart, Loren) (Entered: 10/20/2008)
458 PROPOSED ORDER Granting Plaintiffs Interim Fees, Expenses, and Costs re 444 MOTION for ATTORNEY FEES , Expenses, and Costs Through Settlement Execution Date. (Stewart, Loren) (Entered: 10/20/2008)
459 ORDER signed by Senior Judge Lawrence K. Karlton on 11/3/2008 ORDERING 394 The Clerk is directed to pay to Chase Riveland, L.H., Special Master, the amount of $24,562.48 in accordance with the attached statement; and a copy of this order shall be served on the financial department of this court. (Reader, L) (Entered: 11/04/2008)
460 STATEMENT of Defendants' Proposed Policies and Proceedures by Defendants Arnold Schwarzenegger, James E. Tilton, Kingston Bud Prunty, Bernard Warner, Dennis Dulay, John Monday, James Davis, Joyce Arredondo, Paul Chabot, Joseph Compton, Susan Melanson, Chuck Supple, CDCR, Juvenile Parole Board, Askia Abdulmajeed, Tomas Martinez re 438 Permanent Injunction. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, Part 1 of 2, # 4 Exhibit C, Part 2 of 2, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I, # 11 Exhibit J, # 12 Exhibit K, # 13 Exhibit L, # 14 Exhibit M, # 15 Exhibit N, # 16 Exhibit O, # 17 Exhibit P, # 18 Exhibit Q − DD, # 19 Exhibit EE − FF, # 20 Exhibit GG, # 21 Exhibit HH− PP, # 22 Exhibit QQ − DDD)(McDonough, Timothy) (Entered: 11/04/2008)
461 REPLY/RESPONSE to Defendants' Proposed Policies and Procedures by L.H.. (Grunfeld, Gay) (Entered: 11/05/2008)
462 Defendants' EX PARTE REQUEST for EXTENSION of Time to File Opposition to Plaintiffs' Motion for Attorneys' Fees and Plaintiffs' Motion to Establish a Periodic Fee Schedule. (Fritz, Cynthia) Modified on 11/12/2008 (Mena−Sanchez, L). (Entered: 11/07/2008)
463 DECLARATION of Cynthia C. Fritz in SUPPORT of 462 Ex Parte Request for Extension of Time. (Fritz, Cynthia) Modified on 11/12/2008 (Mena−Sanchez, L). (Entered: 11/07/2008)
464 DECLARATION of Katherine K. Tebrock in SUPPORT of Ex Parte Request for Extension of time 462 . (Fritz, Cynthia) Modified on 11/12/2008 (Mena−Sanchez, L). (Entered: 11/07/2008)
465 STATEMENT of NON−OPPOSITION by L.H. to Request for Extension of Time Conditional on Order of Interim Fees and Establishment of Periodic Fees Process (Attachments: # 1 Declaration of Grunfeld, # 2 Proposed Order, # 3 Proposed Order Establishing Interim Fee Process)(Stewart, Loren) Modified on 11/12/2008 (Mena−Sanchez, L). (Entered: 11/07/2008)
466 [PROPOSED] ORDER re 462 EX PARTE Request for EXTENSION of time. (Fritz, Cynthia) Modified on 11/12/2008 (Mena−Sanchez, L). (Entered: 11/07/2008)
467 SUBSTITUTION of ATTORNEY − PROPOSED, submitted by Arnold Schwarzenegger, James E. Tilton, Kingston Bud Prunty, Bernard Warner, Dennis Dulay, John Monday, James Davis, Joyce Arredondo, Paul Chabot, Joseph Compton, Susan Melanson, Chuck Supple, CDCR, Juvenile Parole Board, Askia Abdulmajeed, Tomas Martinez. (Kwong, William) (Entered: 11/07/2008)
468 ORDER SUBSTITUTING ATTORNEY signed by Senior Judge Lawrence K. Karlton on 11/12/2008 ORDERING Attorney Benjamin Rice and Alberto S. Roldan, for

Case: 2:06-cv-2042 As of: 07/19/2015 05:31 PM PDT 53 of 70

11/12/2008 11/14/2008 11/14/2008
11/14/2008 12/02/2008 12/19/2008 12/23/2008 01/05/2009
01/05/2009 01/09/2009

Arnold Schwarzenegger, James E. Tilton, Kingston Bud Prunty, Bernard Warner, Dennis Dulay, John Monday, James Davis, Paul Chabot, Joseph Compton, Susan Melanson, Chuck Supple, CDCR, Juvenile Parole Board, Askia Abdulmajeed and Tomas Martinez, attorney Timothy John McDonough; Cynthia Clarke Fritz and William C. Kwong terminated. (Reader, L) (Entered: 11/12/2008)
SERVICE BY MAIL: 468 Substitution of Attorney Order, served on Alberto S. Roldan NCAED (Reader, L) (Entered: 11/12/2008)
469 NOTICE of APPEARANCE by Elizabeth Hope Eng on behalf of A.Z., D.K., D.R., L.H., M. N., R. C.. Attorney Eng, Elizabeth Hope added. (Eng, Elizabeth) (Entered: 11/14/2008)
470 ORDER signed by Senior Judge Lawrence K. Karlton on 11/14/08 ORDERING that the that hearing scheduled regarding 444 Motion for Attorney Fees and 440 Motion for Attorney Fees is continued to 2/9/09 at 10 a.m. before Senior Judge Lawrence K. Karlton. Defendants' opposition shall be filed and served no later than 1/9/09; Plaintiffs' reply, if any, shall be filed and served not later than 1/30/09. In the interim plaintiffs' are awarded interim costs in the amount of $349,034.12 and attorneys fees in the amount of $200,000.00. Defendants shall pay this total amount to plaintiffs' no later than 30 days from the date of this order. (Streeter, J) (Entered: 11/14/2008)
SERVICE BY MAIL: 470 Order served on Alberto S. Roldan NCAED (Streeter, J) (Entered: 11/14/2008)
471 ORDER signed by Senior Judge Lawrence K. Karlton on 12/1/2008 ORDERING that the Clerk is directed to pay to Chase Riveland, L.H. Special Master the amount of $8,878.74; and a copy of this order to be served on financial. (cc Financial)(Matson, R) (Entered: 12/02/2008)
472 SUBSTITUTION of ATTORNEY − PROPOSED, submitted by Arnold Schwarzenegger. (Mello, Paul) (Entered: 12/19/2008)
473 ORDER SUBSTITUTING ATTORNEY signed by Senior Judge Lawrence K. Karlton on 12/23/2008 ORDERING attorney Paul B Mello for all defendants and attorneys Benjamin Terrence Rice and Alberto S. Roldan, NCAED terminated. (Matson, R) (Entered: 12/23/2008)
474 FIRST REPORT OF THE SPECIAL MASTER ON THE STATUS OF CONDITIONS OF THE STIPULATED ORDER by Chase Riveland on 11/25/08 In Summary: Both parties should be commended, first for achieving a settlement and secondly for their continued dogged pursuit through "meet and confers" to come to agreement on policies and procedures and the issues in dispute. The Defendants have worked aggressively in a difficult governmental environment to make significant changes in the juvenile justice parole system. Continued efforts to effect that change will be necessary as governmental agencies typically tend to lean toward retaining the status quo. As many persons from both parties are intimately acquainted with the Valdivia v. Schwarzenegger lawsuit, many of the "lessons learned" in the adult parole system can assist in retooling the juvenile parole system. However, the persons "on the ground," who must functionally implement the new policies and procedures, typically do not have that experiential base and will require explicit training and thoughtful leadership at all levels of the organization to successfully implement the required processes. The Special Master's team intends during the next term to concentrate on evaluating the Defendants' implementation of the agreed upon processes and activities and to attempt to assist the parties in resolving those issues in dispute. The Defendants have made important progress and are laying a solid foundation for the needed changes. The Special Master makes no recommendation to the Court at this time. (Becknal, R) . (Entered: 01/05/2009)
475 ORDER signed by Senior Judge Lawrence K. Karlton on 1/5/09 ORDERING that the Clerk is directed to pay to Chase Riveland, L.H. Special Master, the amount of $24,385.64 in accordance with the attached statement. A copy of this order shall be served on the Financial Department of this court. (cc: CFS).(Duong, D) (Entered: 01/05/2009)
476 OPPOSITION by Joe Montes, Arnold Schwarzenegger, James E. Tilton, Kingston Bud Prunty, Bernard Warner, Dennis Dulay, John Monday, James Davis, Joyce

Case: 2:06-cv-2042 As of: 07/19/2015 05:31 PM PDT 54 of 70

01/09/2009
01/09/2009 01/09/2009 01/30/2009 01/30/2009 01/30/2009 01/30/2009 01/30/2009 01/30/2009 01/30/2009 01/30/2009 01/30/2009 01/30/2009 01/30/2009

Arredondo, Paul Chabot, Joseph Compton, Susan Melanson, Chuck Supple, CDCR, Division of Juvenile Justice, Board of Parole Hearings, Juvenile Parole Board, Askia Abdulmajeed, Tomas Martinez to 444 MOTION for ATTORNEY FEES Expenses, and Costs Through Settlement Execution Date. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Mello, Paul) (Entered: 01/09/2009)
477 REQUEST for JUDICIAL NOTICE by Joe Montes, Arnold Schwarzenegger, James E. Tilton, Kingston Bud Prunty, Bernard Warner, Dennis Dulay, John Monday, James Davis, Joyce Arredondo, Paul Chabot, Joseph Compton, Susan Melanson, Chuck Supple, CDCR, Division of Juvenile Justice, Board of Parole Hearings, Juvenile Parole Board, Askia Abdulmajeed, Tomas Martinez in re 476 Opposition to Motion,,. (Mello, Paul) (Entered: 01/09/2009)
478 DECLARATION of Cynthia C. Fritz in OPPOSITION TO 444 MOTION for ATTORNEY FEES Expenses, and Costs Through Settlement Execution Date. (Mello, Paul) (Entered: 01/09/2009)
479 DECLARATION of S. Anne Johnson in OPPOSITION TO 444 MOTION for ATTORNEY FEES Expenses, and Costs Through Settlement Execution Date. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Mello, Paul) (Entered: 01/09/2009)
480 DECLARATION of Reply Declaration of William Chapman in SUPPORT OF 444 MOTION for ATTORNEY FEES Expenses, and Costs Through Settlement Execution Date. Attorney Huey, Shirley added. (Huey, Shirley) (Entered: 01/30/2009)
481 DECLARATION of Reply Declaration of Jay Allen Eisen in SUPPORT OF 444 MOTION for ATTORNEY FEES Expenses, and Costs Through Settlement Execution Date. (Huey, Shirley) (Entered: 01/30/2009)
482 DECLARATION of Reply Declaration of William H. Parish in SUPPORT OF 444 MOTION for ATTORNEY FEES Expenses, and Costs Through Settlement Execution Date. (Huey, Shirley) (Entered: 01/30/2009)
483 DECLARATION of Reply Declaration of Jennifer Anne Scott in SUPPORT OF 444 MOTION for ATTORNEY FEES Expenses, and Costs Through Settlement Execution Date. (Huey, Shirley) (Entered: 01/30/2009)
484 DECLARATION of Reply Declaration of Donald Specter in SUPPORT OF 444 MOTION for ATTORNEY FEES Expenses, and Costs Through Settlement Execution Date. (Huey, Shirley) (Entered: 01/30/2009)
485 DECLARATION of Reply Declaration of Carter C. White in SUPPORT OF 444 MOTION for ATTORNEY FEES Expenses, and Costs Through Settlement Execution Date. (Huey, Shirley) (Entered: 01/30/2009)
486 DECLARATION of Reply Declaration of Sidney M. Wolinsky in SUPPORT OF 444 MOTION for ATTORNEY FEES Expenses, and Costs Through Settlement Execution Date. (Huey, Shirley) (Entered: 01/30/2009)
487 DECLARATION of Reply Declaration of Susan L. Burrell in SUPPORT OF 444 MOTION for ATTORNEY FEES Expenses, and Costs Through Settlement Execution Date. (Huey, Shirley) (Entered: 01/30/2009)
488 DECLARATION of Reply Declaration of Geoffrey T. Holtz in SUPPORT OF 444 MOTION for ATTORNEY FEES Expenses, and Costs Through Settlement Execution Date. (Huey, Shirley) (Entered: 01/30/2009)
489 STATEMENT of NON−OPPOSITION by R. C. to 440 MOTION for ATTORNEY FEES to Establish Periodic Fees Process. Notice of Non−Opposition to Plaintiffs' Motion to Establish Periodic Fees Process and Request for Entry of Order (Huey, Shirley) (Entered: 01/30/2009)
490 PROPOSED ORDER re 444 MOTION for ATTORNEY FEES Expenses, and Costs Through Settlement Execution Date. Proposed Order Granting Plaintiffs' Request for a Second Award of Interim Fees (Huey, Shirley) (Entered: 01/30/2009)

Case: 2:06-cv-2042 As of: 07/19/2015 05:31 PM PDT 55 of 70

01/30/2009 01/30/2009 01/30/2009
02/05/2009 02/06/2009 02/09/2009
02/09/2009 02/09/2009 02/09/2009 02/09/2009 02/09/2009 02/09/2009 02/09/2009 02/09/2009 02/09/2009

491 DECLARATION of Reply Declaration of Gay Crosthwait Grunfeld in SUPPORT OF 444 MOTION for ATTORNEY FEES Expenses, and Costs Through Settlement Execution Date. (Huey, Shirley) (Entered: 01/30/2009)
492 EXHIBIT Exhibit A to Reply Declaration of Geoffrey T. Holtz in SUPPORT OF Motion for Attorneys' Fees, Expenses and Costs Through Settlement Execution Date by R. C. re 488 . (Huey, Shirley) (Entered: 01/30/2009)
493 MEMORANDUM by A.Z. in SUPPORT of 444 MOTION for ATTORNEY FEES Expenses, and Costs Through Settlement Execution Date. Reply Memorandum of Points and Authorities in Support of Plaintiffs' Motion for Reasonable Attorneys' Fees, Expenses, and Costs Through Settlement Execution Date (Grunfeld, Gay) (Entered: 01/30/2009)
494 ORDER signed by Senior Judge Lawrence K. Karlton on 2/4/2009 ORDERING that the Clerk is directed to pay Chase Riveland the amount of $18,280.52; and a copy of this order shall be served on the financial department. (cc Financial)(Matson, R) (Entered: 02/05/2009)
495 STIPULATION and PROPOSED ORDER for Final Notice to Plaintiff Class by A.Z., D.K., D.R., L.H., M. N., R. C.. (Attachments: # 1 Exhibit Short Notice, # 2 Exhibit Long Notice)(Holtz, Geoffrey) (Entered: 02/06/2009)
496 MINUTES (Text Only) for proceedings held before Senior Judge Lawrence K. Karlton: MOTION HEARING held on 2/9/2009 re 444 MOTION for ATTORNEY FEES Expenses, and Costs Through Settlement Execution Date filed by L.H., 440 MOTION for ATTORNEY FEES to Establish Periodic Fees Process filed by M. N. Upon receipt of further briefing, the motions will stand SUBMITTED. Court order to issue. Plaintiffs Counsel Sanford Jay Rosen, Gay Grunfeld present. Defendants Counsel S. Anne Johnson present. Court Reporter: C. Bodene. (Rivas, A) (Entered: 02/09/2009)
497 NOTICE of Lodging Amended [Proposed] Order Establishing Periodic Process for Collection of Attorneys' Fees and Costs by R. C. re 440 MOTION for ATTORNEY FEES to Establish Periodic Fees Process. (Grunfeld, Gay) (Entered: 02/09/2009)
498 PROPOSED ORDER re 440 MOTION for ATTORNEY FEES to Establish Periodic Fees Process. (Grunfeld, Gay) (Entered: 02/09/2009)
499 MOTION to Monitor defendants' compliance with Stipulated Order for Permanent Injunctive Relief by R. C.. Motion Hearing set for 3/9/2009 at 10:00 AM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. (Grunfeld, Gay) Modified on 2/19/2009 (Marciel, M). (Entered: 02/09/2009)
500 MEMORANDUM by R. C. in SUPPORT of 499 MOTION to Monitor Defendants' Compliance With The Stipulated Order for Permanent Injunctive Relief. (Grunfeld, Gay) (Entered: 02/09/2009)
501 EXHIBIT Unpublished Decisions in Support of Plaintiffs' Motion to Monitor Defendants' Compliance re 499 MOTION to Monitor Defendants' Compliance With The Stipulated Order for Permanent Injunctive Relief filed by R. C.. (Grunfeld, Gay) (Entered: 02/09/2009)
502 DECLARATION of Gay Crosthwait Grunfeld−−PART 1 in Support Of 499 MOTION to Monitor Defendants' Compliance With The Stipulated Order for Permanent Injunctive Relief. (Grunfeld, Gay) (Entered: 02/09/2009)
503 DECLARATION of Gay Crosthwait Grunfeld−−PART 2 in Support Of 499 MOTION to Monitor Defendants' Compliance With The Stipulated Order for Permanent Injunctive Relief. (Grunfeld, Gay) (Entered: 02/09/2009)
504 DECLARATION of Corene Kendrick in Support Of 499 MOTION to Monitor Defendants' Compliance With The Stipulated Order for Permanent Injunctive Relief. (Grunfeld, Gay) (Entered: 02/09/2009)
505 DECLARATION of Christian Spaulding in Support Of 499 MOTION to Monitor Defendants' Compliance With The Stipulated Order for Permanent Injunctive Relief. (Grunfeld, Gay) (Entered: 02/09/2009)

Case: 2:06-cv-2042 As of: 07/19/2015 05:31 PM PDT 56 of 70

02/09/2009 02/09/2009 02/09/2009 02/09/2009 02/10/2009
02/10/2009 02/11/2009 02/11/2009 02/12/2009
02/13/2009 02/13/2009 02/13/2009 02/13/2009 02/13/2009 02/13/2009 02/17/2009

506 PROPOSED ORDER re 499 MOTION to Monitor Defendants' Compliance With The Stipulated Order for Permanent Injunctive Relief. Plaintiffs' [Proposed] Order Granting Motion to Monitor Defendants' Compliance (Grunfeld, Gay) (Entered: 02/09/2009)
507 DECLARATION of Michael W. Bien in Support Of 499 MOTION to Monitor Defendants' Compliance With The Stipulated Order for Permanent Injunctive Relief. (Bien, Michael) (Entered: 02/09/2009)
508 DECLARATION of Elizabeth H. Eng in Support Of 499 MOTION to Monitor Defendants' Compliance With The Stipulated Order for Permanent Injunctive Relief. (Eng, Elizabeth) (Entered: 02/09/2009)
509 STIPULATION and PROPOSED ORDER for Stipulated Protective Order Regarding Parolee Defense Counsel Access to Witness Contact Information and Certain Mental Health Information by R. C.. (Grunfeld, Gay) (Entered: 02/09/2009)
510 ORDER signed by Senior Judge Lawrence K. Karlton on 02/09/09 GRANTING 495 Stipulation Regarding Final Notice to Plaintiff Class. IT IS ORDERED that the Notice to Plaintiff Class, attached hereto as Exhibits A and B, shall be published in the manner set forth herein, and Defendants shall file and serve an affidavit affirming that they published the Notice as required in this Order, by no later than 30 days after the entry of this Order. (Attachments: # 1 Exhibit A−Notice:Due Process Rights In Juvenile Parole Revocation, # 2 Exhibit B−Due Process Rights−Juvenile Parole Revocation)(Streeter, J) (Entered: 02/10/2009)
511 CERTIFICATE of SERVICE by R. C. re 507 , 502 , 504 , 501 Exhibit − R, 506 Proposed Order − R, 503 , 508 , 505 , 500 Memorandum in Support of Motion, 499 MOTION to Monitor Defendants' Compliance With The Stipulated Order for Permanent Injunctive Relief. (Eng, Elizabeth) (Entered: 02/10/2009)
512 ORDER Establing Periodic Process for Collection of Attorneys' Fees and Costs signed by Senior Judge Lawrence K. Karlton on 2/11/09 re 498 .(Duong, D) (Entered: 02/11/2009)
513 STIPULATED PROTECTIVE ORDER Regarding Parole Defense Counsel Access to Witness Contact Information and Certain Mental Health Information signed by Senior Judge Lawrence K. Karlton on 2/11/09 re 509 . (Duong, D) (Entered: 02/11/2009)
514 ORDER signed by Senior Judge Lawrence K. Karlton on 2/12/2009 ORDERING 444 Plaintiffs are hereby ORDERED to submit supplemental briefing on this question not later than 10 days from the date of the hearing. Defendants are ORDERED to submit a response, if any, not later than 5 days thereafter. The supplemental briefs shall not exceed 10 pages in length. (Reader, L) (Entered: 02/12/2009)
515 EX PARTE REQUEST for an Extension of Time to File an Opposition to Plaintiffs' Motion to Monitor Defendants' Compliance 499 by Arnold Schwarzenegger. (Mello, Paul) Modified on 2/17/2009 (Mena−Sanchez, L). (Entered: 02/13/2009)
516 DECLARATION of Paul B. Mello in Support of Defendants' Ex Parte Request 515 . (Mello, Paul) Modified on 2/17/2009 (Mena−Sanchez, L). (Entered: 02/13/2009)
517 [PROPOSED] ORDER Granting Defendants' Ex Parte Request 515 . (Mello, Paul) Modified on 2/17/2009 (Mena−Sanchez, L). (Entered: 02/13/2009)
518 DECLARATION of Gay Crosthwait Grunfeld re 515 Request − ATY. (Grunfeld, Gay) (Entered: 02/13/2009)
519 [PROPOSED] ORDER Conditionally Granting Defendants' Ex Parte Request 515 . (Grunfeld, Gay) Modified on 2/17/2009 (Mena−Sanchez, L). (Entered: 02/13/2009)
520 STATEMENT of Conditional Non−Opposition to Defendants' Ex Parte Request 515 . (Grunfeld, Gay) Modified on 2/17/2009 (Mena−Sanchez, L). (Entered: 02/13/2009)
521 Defendant's OBJECTIONS 515 to Plaintiffs' Conditional Nonopposition to Defendants' Ex Parte Request for Extension of Time] (Mello, Paul) Modified on 2/18/2009 (Mena−Sanchez, L). (Entered: 02/17/2009)

Case: 2:06-cv-2042 As of: 07/19/2015 05:31 PM PDT 57 of 70

02/19/2009
02/19/2009 02/19/2009 02/19/2009 02/24/2009 02/24/2009 02/26/2009 03/03/2009 03/06/2009
03/11/2009 03/13/2009
03/25/2009 03/25/2009

522 ORDER signed by Senior Judge Lawrence K. Karlton on 2/19/2009. Plaintiffs' 499 Motion to Monitor defendants' compliance with Permanent Injunction Hearing is CONTINUED to 4/20/2009 at 10:00 AM in Courtroom 4 (LKK). Defendants' Opposition or Statement of Non−Opposition shall be filed no later than 3/25/2009; plaintiffs' Reply, if any, shall be filed no later than 4/6/2009. Plaintiffs' 519 Proposed Order for interim monitoring of various juvenile parole proceedings one day per week is DENIED without prejudice. (Marciel, M) (Entered: 02/19/2009)
523 SUPPLEMENTAL MEMORANDUM of Points and Authorities Following February 12, 2009 Order in Support of Plaintiffs' Motion for Reasonable Attorneys' Fees, Expenses, and Costs Through Settlement Execution Date re 444 . (Grunfeld, Gay) Modified on 2/23/2009 (Mena−Sanchez, L). (Entered: 02/19/2009)
524 DECLARATION of Sanford Jay Rosen in Support of Plaintiffs' Supplemental Memorandum 523 (Grunfeld, Gay) Modified on 2/23/2009 (Mena−Sanchez, L). (Entered: 02/19/2009)
525 APPENDIX OF UNPUBLISHED CASES submitted in SUPPORT of 523 Memorandum. (Grunfeld, Gay) Modified on 2/23/2009 (Mena−Sanchez, L). (Entered: 02/19/2009)
526 OPPOSITION by Arnold Schwarzenegger to 444 MOTION for ATTORNEY FEES. (Johnson, Sally) Modified on 2/25/2009 (Kaminski, H). (Entered: 02/24/2009)
527 DECLARATION of Alessandra Q. Moore in support of 526 Opposition to Motion. Attorney Johnson, Sally Anne added. (Attachments: # 1 Exhibit A)(Johnson, Sally) Modified on 2/25/2009 (Kaminski, H). (Entered: 02/24/2009)
528 OBJECTIONS to 444 MOTION for ATTORNEY FEES and Request to Strike 527 Declaration of S. Alessandra Moore by Plaintiffs (Grunfeld, Gay) Modified on 2/27/2009 (Kaminski, H). (Entered: 02/26/2009)
529 ORDER signed by Senior Judge Lawrence K. Karlton on 3/2/09. Clerk is directed to pay to Chase Riveland L.H. Special Master 5714 Deer Harbor Road, Box 367 Deer Harbor, WA 98243 the amount of $5,020.00. A copy of this order shall be served on the Financial department of this Court.(Mena−Sanchez, L) (Entered: 03/03/2009)
530 ORDER signed by Senior Judge Lawrence K. Karlton on 3/5/09 ORDERING that Pltfs' 444 motion for reasonable attorneys' fees and costs is GRANTED IN PART. Pltfs are awarded $4,421,173.46 in fees and $349,034.12 in costs, less $200,000 in fees and $349,034.12 in costs that were ordered as an interim fee award in the court's 11/14/08 order, plus interest accrued from 10/7/08. Pltfs are awarded $16,392 and $30,322 in discovery sanctions, pursuant to the magistrate court's 5/14/08 order. (Engbretson, K.) (Entered: 03/06/2009)
531 JOINT STIPULATION and PROPOSED ORDER Regarding Class Notice by dfts. Attorney Jacob, Renju Palanilkumuryil added. (Jacob, Renju) Modified on 3/12/2009 (Duong, D). (Entered: 03/11/2009)
532 STIPULATION and ORDER signed by Senior Judge Lawrence K. Karlton on 3/12/09 re 531 ORDERING that the requirement "Defendants shall file and serve an affidavit affirming that they published the Notice as required in this Order by no later than 30 days after entry of this Order" is now MODIFIED as follows: Defendants shall file and serve an affidavit affirming that they published the Notice as required in this Court's 510 February 10, 2009 Order no later than March 25, 2009, provided that Defendants receive all outstanding notice materials by March 18, 2009. If Defendants receive these materials after March 18, 2009, Defendants will have one week from the date of receipt to fully comply with the February 10, 2009 Order and file and serve an affidavit affirming publication. (Duong, D) Modified on 3/16/2009 (Duong, D). (Entered: 03/13/2009)
533 [DISREGARD − See doc. 534 for all documents] OPPOSITION by Arnold Schwarzenegger to 499 Motion to Monitor. (Jacob, Renju) Modified on 3/26/2009 (Engbretson, K.). Modified on 3/26/2009 (Engbretson, K.). (Entered: 03/25/2009)
534 OPPOSITION by Arnold Schwarzenegger to 499 Motion to Monitor. (Attachments: # 1 Opposition, # 2 Declaration of Simone Renteria, # 3 Declaration of Katie Riley)(Jacob, Renju) Modified on 3/26/2009 (Engbretson, K.). (Entered: 03/25/2009)

Case: 2:06-cv-2042 As of: 07/19/2015 05:31 PM PDT 58 of 70

03/25/2009 03/31/2009 04/01/2009 04/02/2009 04/02/2009 04/27/2009 04/28/2009
05/06/2009
05/28/2009 06/02/2009 07/02/2009 07/02/2009 07/08/2009 07/23/2009 07/30/2009

535 DECLARATION of Shelly Jones Affirming Published Notice by Arnold Schwarzenegger. (Jacob, Renju) Modified on 3/26/2009 (Engbretson, K.). (Entered: 03/25/2009)
536 STIPULATION and PROPOSED ORDER re 499 Motion to Monitor defendants' compliance with Permanent Injunction by A.Z., D.K., D.R., L.H., M. N., R. C.. (Grunfeld, Gay) (Entered: 03/31/2009)
537 CORRECTED STIPULATION and PROPOSED ORDER re 499 Motion to Monitor defendants' compliance with Permanent Injunction by A.Z., D.K., D.R., L.H., M. N., R. C.. (Grunfeld, Gay) (Entered: 04/01/2009)
538 STIPULATION and ORDER signed by Senior Judge Lawrence K. Karlton on 4/2/09: 499 Motion to Monitor defendants' compliance with Permanent Injunction is taken off the Court's calendar. (Kaminski, H) (Entered: 04/02/2009)
539 ORDER signed by Senior Judge Lawrence K. Karlton on 4/2/09: The Clerk is directed to pay to Special Master the amount of $10,886.59. A copy of this order shall be served on the financial department of this court.(Kaminski, H) (Entered: 04/02/2009)
540 STIPULATION and PROPOSED ORDER for Confirming Undisputed Fees and Costs for Quarterly Statement of June 5, 2008−−December 31, 2008 by plts. (Grunfeld, Gay) Modified on 4/28/2009 (Duong, D). (Entered: 04/27/2009)
541 ORDER Confirming Undisputed Fees and Costs for Quarterly Statement of 6/5/08 − 12/31/08 signed by Senior Judge Lawrence K. Karlton on 4/27/09. Pltfs' fees and costs of $1,194,057.08, plus interest, are DUE and collectable as of 45 days from the date of entry of this Order. Interest on these fees and costs will run from 4/2/09 accruing at the rate provided by 28 U.S.C. § 1961.(Kastilahn, A) (Entered: 04/28/2009)
542 ORDER signed by Senior Judge Lawrence K. Karlton on 5/5/2009. Pursuant to Court's 394 Order of Reference, the Special Master has submitted for payment a bill for services provided through month of April 2009. Good cause appearing, Clerk directed to pay Chase Riveland, L.H. Special Master, the amount of $31,806.00 in accordance with Statement. A copy of this Order shall be served on Financial Department. (Marciel, M) (Entered: 05/06/2009)
543 SECOND REPORT OF THE SPECIAL MASTER ON THE STATUS OF CONDITIONS OF THE STIPULATED ORDER, signed by Chase Riveland, Special Master, on 5/24/09. (Kastilahn, A) (Entered: 05/28/2009)
544 ORDER signed by Senior Judge Lawrence K. Karlton on 6/5/09 ORDERING that the Clerk is directed to pay Chase Riveland, Special Master the amount of $19,464.60. A copy of this order shall be served on the financial department of this court. (cc: CFS) (Engbretson, K.) (Entered: 06/02/2009)
545 ORDER signed by Senior Judge Lawrence K. Karlton on 07/02/09 ORDERING that the Clerk is directed to pay Chase Riveland, Special Master the amount of $10,700.79. A copy of this order shall be served on the financial department of this court. (cc: CFS). (Streeter, J) (Entered: 07/02/2009)
546 STIPULATION and PROPOSED ORDER for Identification and Tracking of Parolees with Disabilities and Effective Communication Needs by A.Z., D.K., D.R., L.H., M. N., R. C.. (Grunfeld, Gay) (Entered: 07/02/2009)
547 STIPULATION and ORDER 546 requiring defendants to take immediate steps to identify and track juvenile parolees w/disabilities and effect communications needs signed by Senior Judge Lawrence K. Karlton on 7/7/2009. (Marciel, M) (Entered: 07/08/2009)
548 PROPOSED ORDER Confirming Undisputed Attorneys' Fees and Costs for Q1 2009 by A.Z., D.K., D.R., L.H., M. N., R. C.. (Grunfeld, Gay) Modified on 7/24/2009 (Kaminski, H). (Entered: 07/23/2009)
549 ORDER Confirming Undisputed Fees and Costs for The First Quarterly Statement of 2009 signed by Senior Judge Lawrence K. Karlton on 07/29/09. Pltfs' fees and costs of $585,791.39, plus interest, are DUE and collectable as of 45 days from the date of entry of this Order. Interest on these fees and costs will run from 06/01/09 accruing at the rate provided by 28 U.S.C. § 1961(Streeter, J) (Entered: 07/30/2009)

Case: 2:06-cv-2042 As of: 07/19/2015 05:31 PM PDT 59 of 70

08/05/2009 09/08/2009 09/08/2009 09/10/2009 10/05/2009 10/30/2009 11/02/2009
11/03/2009 11/30/2009 12/02/2009 12/28/2009 12/30/2009 01/07/2010 01/19/2010 01/21/2010

550 ORDER signed by Senior Judge Lawrence K. Karlton on 08/03/09 ORDERING that the Clerk is directed to pay Chase Riveland, Special Master the amount of $4,715.90. A copy of this order shall be served on the financial department of this court. (cc: CFS)(Streeter, J) (Entered: 08/05/2009)
551 ORDER signed by Senior Judge Lawrence K. Karlton on 09/04/09 ORDERING that the Clerk is directed to pay Chase Riveland, Special Master the amount of $9,257.37. A copy of this order shall be served on the financial department of this court. (cc: Sac Finance)(Streeter, J) (Entered: 09/08/2009)
552 STIPULATION and PROPOSED ORDER for Modifications to Division of Juvenile Justice Parole Revocation Policies and Procedures by A.Z., D.K., D.R., L.H., M. N., R. C.. (Grunfeld, Gay) (Entered: 09/08/2009)
553 ORDER signed by Senior Judge Lawrence K. Karlton on 9/10/09 GRANTING 552 joint stipulation regarding modifications to division of juvenile justice parole revocation policies and procedures. (Engbretson, K.) (Entered: 09/10/2009)
554 ORDER signed by Senior Judge Lawrence K. Karlton on 10/2/2009 ORDERING 394 The Clerk is directed to pay to Chase Riveland, L.H., Special Master, the amount of $4,415.12 in accordance with the attached statement; and a copy of this order shall be served on the financial department of this court. (Reader, L) (Entered: 10/05/2009)
555 STIPULATION and PROPOSED ORDER for Confirming Undisputed Fees and Costs for 2Q Statement of 2009 by A.Z., D.K., D.R., L.H., M. N., R. C.. (Grunfeld, Gay) (Entered: 10/30/2009)
556 ORDER CONFIRMING UNDISPUTED FEES AND COSTS signed by Senior Judge Lawrence K. Karlton on 11/2/2009, for the Second Quarterly Statement of 2009 ORDERING 555 that plaintiffs' fees and costs of $444,940.29, plus interest, are due and collectable as of 45 days from the date of entry of this Order. Interest on these fees and costs will run from 8/24/2009 accruing at the rate provided by 28:1961. (Reader, L) (Entered: 11/02/2009)
557 ORDER signed by Senior Judge Lawrence K. Karlton on 11/2/09: The Clerk is directed to pay to Chase Riveland L.H. Special Master the amount of $26,502.22. A copy of this order shall be served on the financial department of this court.(Kaminski, H) (Entered: 11/03/2009)
558 THIRD REPORT OF THE SPECIAL MASTER ON THE STATUS OF CONDITIONS OF THE STIPULATED ORDER signed by Chase Riveland, Special Master, on 11/25/09. (Engbretson, K.) (Entered: 11/30/2009)
559 ORDER signed by Senior Judge Lawrence K. Karlton on 12/1/09 ORDERING that the Clerk is directed to pay to Chase Riveland the amount of $15,062.41 in accordance with the attached statement. A copy of this order shall be served on the Financial Department of this court. (cc: CFS) (Duong, D) (Entered: 12/02/2009)
560 DISREGARD pursuant to Court's 561 Order [REQUEST by A.Z. to have his skin bleached]. (Kastilahn, A) Modified on 12/30/2009 (Duong, D). (Entered: 12/28/2009)
561 ORDER signed by Senior Judge Lawrence K. Karlton on 12/30/09 ORDERING that the court disregards this letter 560 . (cc Dean J. Ugboaha)(Duong, D) Modified on 12/30/2009 (Duong, D). (Entered: 12/30/2009)
562 ORDER signed by Senior Judge Lawrence K. Karlton on 1/5/2010 ORDERING that the Clerk is directed to pay Chase Riveland, L.H. Special Master, the amount of $22,977.50. A copy of this order shall be served on the financial department of this court. (cc: CFS) (Engbretson, K.) (Entered: 01/07/2010)
563 PROPOSED ORDER Confirming Undisputed Fees and Costs for 3Q 2009 by A.Z., D.K., D.R., L.H., M. N., R. C.. (Grunfeld, Gay) (Entered: 01/19/2010)
564 ORDER signed by Senior Judge Lawrence K. Karlton on 1/20/10 ORDERING dfts to deposit with the clerk of the court, within 30 days of the date of this order, funds sufficient to bring the Special Master account balance back to $250,000. (Carlos, K) (Entered: 01/21/2010)

Case: 2:06-cv-2042 As of: 07/19/2015 05:31 PM PDT 60 of 70

01/22/2010 01/25/2010 02/02/2010 02/10/2010 02/12/2010 02/12/2010 03/11/2010 04/06/2010 04/19/2010 04/21/2010 05/03/2010 05/21/2010 05/26/2010
06/04/2010 06/07/2010
06/08/2010

565 ORDER signed by Senior Judge Lawrence K. Karlton on 1/21/2010 ORDERING that plaintiffs' fees and costs of $206,235.18, plus interest are due and collectable as of 45 days from the date of entry of this order. Interest on these fees and costs will run from 12/6/2009. (Attachments: # 1 Exhibit A)(Matson, R) (Entered: 01/22/2010)
RECEIPT number #CAE200022851 $123927.41 fbo State of California by State of California on 1/8/2010. (Gaydosh, J) (Entered: 01/25/2010)
566 ORDER signed by Senior Judge Lawrence K. Karlton on 1/5/10 directing payment of special master fees in the amount of $8,587.15. (cc: financial) (Owen, K) (Entered: 02/02/2010)
567 STIPULATION and PROPOSED ORDER for Modifications to the Revocation Extension Matrix by A.Z., D.K., D.R., L.H., M. N., R. C.. (Grunfeld, Gay) (Entered: 02/10/2010)
RECEIPT number #CAE200023807 $22,977.50 fbo State of California by State of California on 2/11/2010. (Gaydosh, J) (Entered: 02/12/2010)
568 STIPULATION and ORDER REGARDING MODIFICATIONS TO DIVISION OF JUVENILE JUSTICE PAROLE REVOCATION EXTENSION MATRIX signed by Senior Judge Lawrence K. Karlton on 02/12/10. (Benson, A.) (Entered: 02/12/2010)
569 ORDER signed by Senior Judge Lawrence K. Karlton on 3/10/10 ORDERING that the Clerk is directed to pay Chase Riveland, Special Master the amount of $9,745.57. A copy of this order shall be served on the financial department of this court. (cc: CFS) (Becknal, R) (Entered: 03/11/2010)
570 ORDER signed by Senior Judge Lawrence K. Karlton on 4/5/10 DIRECTING payment to Special Master Chase Riveland. (CC: Financial) (Owen, K) (Entered: 04/06/2010)
571 PROPOSED ORDER confirming undisputed fees & costs for Q4 2009 Quarterly Statement by plaintiffs. (Grunfeld, Gay) Modified on 4/20/2010 (Marciel, M). (Entered: 04/19/2010)
572 ORDER signed by Senior Judge Lawrence K. Karlton on 04/19/10 ORDERING that plaintiffs' fees and costs of $238,200.85, plus interest are due and collectable within 45 days. (Williams, D) (Entered: 04/21/2010)
573 ORDER signed by Senior Judge Lawrence K. Karlton on 5/3/2010 ORDERING 394 The Clerk is directed to pay to Chase Riveland, L.H., Special Master, the amount of $47,131.15 in accordance with the attached statement; and a copy of this order shall be served on the financial department of this court. (Reader, L) (Entered: 05/03/2010)
574 PROPOSED ORDER Concerning Special Master by A.Z., D.K., D.R., L.H., M. N., R. C.. (Grunfeld, Gay) (Entered: 05/21/2010)
575 ORDER signed by Senior Judge Lawrence K. Karlton on 05/25/10 ORDERING that effective, 06/01/10, Virginia Morrison shall assume the duties and responsibilities of the special master in this action as indicated in this court's 394 05/21/08 order and shall be compensated at the rates set forth in this order; and effective 06/01/10, Patricia Gray shall serve as deputy special master in this action and shall be compensated at the rates set forth in this order. (Benson, A.) (Entered: 05/26/2010)
576 ORDER signed by Senior Judge Lawrence K. Karlton on 6/3/10 ORDERING that the Clerk is directed to pay Special Master Chase Riveland in the amount of $21,513.33. (cc: Financial) (Owen, K) (Entered: 06/04/2010)
577 [WITHDRAWN PER 578 ORDER] ORDER signed by Senior Judge Lawrence K. Karlton on 6/4/10: The parties MAY file objections to Fourth Report and recommendations no later than twenty−one (21) days from the dateof this order. If objections are filed, the opposing party MAY file a response no later than seven (7) days thereafter. (Kaminski, H) Modified on 6/8/2010 (Benson, A.). (Entered: 06/07/2010)
578 ORDER signed by Senior Judge Lawrence K. Karlton on 06/08/10 ORDERING that the Court's 06/07/10 577 Order is WITHDRAWN. The parties MAY file objections to the fourth report and the recommendations therein no later than 20 days from the date

Case: 2:06-cv-2042 As of: 07/19/2015 05:31 PM PDT 61 of 70

06/28/2010 07/07/2010
07/07/2010 07/08/2010 07/19/2010 07/19/2010 07/23/2010
07/27/2010 07/27/2010 07/28/2010 07/28/2010
08/27/2010 09/15/2010
09/28/2010 09/29/2010 10/04/2010

of this order. If objections are filed, the opposing party MAY file a response no later than 20 days thereafter. (Benson, A.) (Entered: 06/08/2010)
579 OBJECTIONS to the Fourth Report of the Special Master by Defendant Arnold Schwarzenegger. (Attachments: # 1 Exhibit Ex A to LH Objection)(Mello, Paul) Modified on 6/29/2010 (Owen, K). (Entered: 06/28/2010)
580 ORDER signed by Senior Judge Lawrence K. Karlton on 7/6/10 ORDERING the Clerk to pay Virignia L. Morrison, L.H. Special Master, 39 Allyn Avenue, San Anselmo, CA 94960 the amount of $19,829.71 in accordance with the attached statement; a copy of this order shall be served on the financial department of this court. (Attachments: # 1 Statement)(Carlos, K) (Entered: 07/07/2010)
RECEIPT number #CAE200027537 $103271.92 fbo LH v Schwarzenegger by State of CA on 7/1/2010. (Waggoner, D) (Entered: 07/07/2010)
581 [WITHDRAWN pursuant to 587 Order] ORDER signed by Senior Judge Lawrence K. Karlton on 07/08/10 ORDERING that dfts are to deposit with the clerk, w/i 30 days, funds sufficient to bring the account balance back to $250,000. (Benson, A.) Modified on 7/28/2010 (Owen, K). (Entered: 07/08/2010)
582 REPLY by A.Z., R. C., D.K., D.R. re 579 Objections. (Grunfeld, Gay) (Entered: 07/19/2010)
583 PROPOSED ORDER re 582 Reply by A.Z., R. C., D.K., D.R.. (Grunfeld, Gay) Modified on 7/21/2010 (Zignago, K.). (Entered: 07/19/2010)
584 ORDER signed by Senior Judge Lawrence K. Karlton on 7/22/10: The defendants' 579 Objections to the special master's fourth report are OVERRULED. The special master's recommendations on page 47 of the report are ACCEPTED and APPROVED. (Attachments: # 1 FOURTH REPORT OF THE SPECIAL MASTER. (Kaminski, H) (Entered: 07/23/2010)
585 NOTICE OF WITHDRAWAL OF ATTORNEY ELIZABETH H. ENG by L.H.. (Eng, Elizabeth) (Entered: 07/27/2010)
586 PROPOSED ORDER Confirming Undisputed Fees and Costs for Q1 2010 by A.Z., R. C., D.K., D.R., L.H., M. N.. (Grunfeld, Gay) (Entered: 07/27/2010)
587 ORDER signed by Senior Judge Lawrence K. Karlton on 7/28/10 ORDERING that Court's 7/8/10 581 Order is WITHDRAWN. (Owen, K) (Entered: 07/28/2010)
588 ORDER signed by Senior Judge Lawrence K. Karlton on 7/28/10 ORDERING that pltfs' fees and costs of $251,097.92, plus interest, are due and collectable as of 45 days from the date of the entry of this order. Interest on these fees and costs will run from 6/4/10 accruing at the rate provided by 28 USC § 1961. (Owen, K) (Entered: 07/28/2010)
589 ORDER signed by Senior Judge Lawrence K. Karlton on 8/26/2010 ORDERING that the Clerk is directed to pay to Collaboration Specialists the amount of $27,798.02 in accordance with the attached statement. (Attachments: # 1 Statement)(Duong, D) (Entered: 08/27/2010)
590 ORDER signed by Senior Judge Lawrence K. Karlton on 9/15/2010 ORDERING that the Clerk is directed to pay Collaboration Specialists the amount of $29,395.13 in accordance with the attached statement. A copy of this order shall be served on the financial department of this court. (cc: Financial) (Attachments: # 1 Statement) (Zignago, K.) (Entered: 09/15/2010)
591 STIPULATION and PROPOSED ORDER for Extending the Deadline to File a Motion Regarding a Rates Dispute by A.Z., R. C., D.K., D.R., L.H., M. N.. (Morris, Maria) (Entered: 09/28/2010)
592 STIPULATION and ORDER signed by Senior Judge Lawrence K. Karlton on 9/29/2010 ORDERING 591 that the deadline for any motion regarding Plaintiffs' Counsel's 2010 rates shall be 1/12/2011. (Reader, L) (Entered: 09/29/2010)
593 ORDER signed by Senior Judge Lawrence K. Karlton on 10/1/10, ORDERING that the special master's request to employ a paralegal is GRANTED. Wendell Ricketts is

Case: 2:06-cv-2042 As of: 07/19/2015 05:31 PM PDT 62 of 70

10/05/2010
10/06/2010 10/13/2010
10/18/2010 11/23/2010 12/01/2010
12/03/2010
01/04/2011 01/05/2011 01/05/2011 01/05/2011 01/07/2011 01/07/2011 01/07/2011

to serve in this capacity effective immediately; and will be compensated at the rate of $35 per hr.(Kastilahn, A) (Entered: 10/04/2010)
594 ORDER signed by Senior Judge Lawrence K. Karlton on 10/04/10 ORDERING that the Clerk is directed to pay to Collaboration Specialists the amount of $18,955.07 in accordance with the attached statement. A copy of this order shall be served on the financial department of this court. (Attachments: # 1 Statement)(cc: sacramento financial)(Williams, D) (Entered: 10/05/2010)
595 PROPOSED ORDER Confirming Undisputed Fees and Costs for the Second Quarter of 2010 by A.Z., R. C., D.K., D.R., L.H., M. N.. (Grunfeld, Gay) . (Entered: 10/06/2010)
596 ORDER CONFIRMING UNDISPUTED FEES AND COSTS FOR THE SECOND QUARTER OF 2010 signed by Senior Judge Lawrence K. Karlton on 10/12/10 ORDERING that plf's fees and costs of $373,026.13, plus interest, are due and collectable as of forty−five (45) days from the date of entry of this Order. Interest on these fees and costs will run from 09/12/10 accruing at the rate provided by 28 U.S.C. § 1961. (Benson, A.) (Entered: 10/13/2010)
597 ORDER signed by Senior Judge Lawrence K. Karlton on 10/15/10 ORDERING the Fifth Report of the Special Master shall be filed with the Court on or before 1/10/11. (Carlos, K) (Entered: 10/18/2010)
598 PROPOSED ORDER Confirming Undisputed Fees and Costs for the Third Quarter of 2010 by A.Z., R. C., D.K., D.R., L.H., M. N.. (Grunfeld, Gay) (Entered: 11/23/2010)
599 ORDER CONFIRMING UNDISPUTED FEES AND COSTS FOR THE THIRD QUARTER OF 2010 signed by Senior Judge Lawrence K. Karlton on 12/01/10 ORDERING that plf's fees and costs of $345,203.64, plus interest, are due and collectable as of forty−five (45) days from the date of entry of this Order. Interest on these fees and costs will run from 11/08/10 accruing at the rate provided by 28 U.S.C. § 1961. (Benson, A.) (Entered: 12/01/2010)
600 ORDER signed by Senior Judge Lawrence K. Karlton on 12/2/2010 ORDERING the Clerk to pay Collaboration Specialists the amount of $54,544.11 in accordance with the attached statement; and serve a copy of this order on the financial department of this court. (cc Financial) (Attachments: # 1 Statement of Fees and Disbursements)(Matson, R) (Entered: 12/03/2010)
601 FIFTH REPORT of Special Master, pursuant to 597 Order, on status of conditions of Stipulated Order (Marciel, M) (Entered: 01/04/2011)
602 MOTION for 120−DAY EXTENSION of TIME to file Motions to Compel compensation at plaintiffs' counsel's reasonable 2010 Hourly Rates by L.H.. (Grunfeld, Gay) Modified on 1/6/2011 (Marciel, M). (Entered: 01/05/2011)
603 DECLARATION of Gay Crosthwait Grunfeld in support of 602 Motion for 120−Day Extension of Time. (Attachments: # 1 Exhibit A−I) (Grunfeld, Gay) Modified on 1/6/2011 (Marciel, M). (Entered: 01/05/2011)
604 PROPOSED ORDER granting plaintiff's 602 Motion for Extension of Time. (Grunfeld, Gay) Modified on 1/6/2011 (Marciel, M). (Entered: 01/05/2011)
605 DECLARATION of Samantha Wolff in OPPOSITION TO 602 Motion for 120−Day Extension of Time to file Motions to Compel compensation at plaintiffs' counsel's reasonable 2010 hourly rates. Attorney Tama, Samantha Derin added. (Tama, Samantha) (Entered: 01/07/2011)
606 OPPOSITION by Arnold Schwarzenegger to 602 Motion for 120−Day Extension of Time to file Motions to Compel compensation at plaintiffs' counsel's reasonable 2010 hourly rates. (Tama, Samantha) (Entered: 01/07/2011)
607 PROPOSED ORDER granting in part 602 Motion for 120−Day Extension of Time to file Motions to Compel compensation at plaintiffs' counsel's reasonable 2010 hourly rates. (Tama, Samantha) Modified on 1/12/2011 (Reader, L). (Entered: 01/07/2011)

Case: 2:06-cv-2042 As of: 07/19/2015 05:31 PM PDT 63 of 70

01/07/2011
01/10/2011
01/11/2011
02/10/2011
02/17/2011 03/09/2011 03/10/2011
03/11/2011 04/15/2011 05/12/2011 05/12/2011 05/12/2011 05/12/2011 05/12/2011 05/12/2011 05/12/2011

608 EXHIBIT A−D To Declaration of Samantha Tama in Opposition to Plaintiffs' 120−Day Request for Extension of Time to File Motion to Compel Compensation of Attorneys' Fees re 602 Motion for 120−Day Extension of Time to file Motions to Compel compensation at plaintiffs' counsel's reasonable 2010 hourly rates filed by L.H.. (Tama, Samantha) (Entered: 01/07/2011)
609 ORDER granting 602 Motion for Extension of time signed by Senior Judge Lawrence K. Karlton on 1/10/11. Plaintiffs' time in which they may file motions to compel compensation at plaintiffs' counsel's reasonable 2010 billing rates is hereby extended from January 12, 2011 to and including May 12, 2011. (Kaminski, H) (Entered: 01/10/2011)
610 ORDER signed by Senior Judge Lawrence K. Karlton on 1/10/11: The Clerk is directed to pay to Collaboration Specialists the amount of $21,200.33 in accordance with the attached statement. A copy of this order shall be served on the financial department of this court. (Attachments: # 1 Statement) (Kaminski, H) (Entered: 01/11/2011)
611 ORDER signed by Senior Judge Lawrence K. Karlton on 02/09/11 ORDERING that defendants have demonstrated substantial compliance with certain requirements and therefore they will no longer be a primary focus of Plaintiffs' or the Special Master's monitoring unless and until it comes to the parties or the Special Masters attention that there has been a significant decline in compliance.(Williams, D) (Entered: 02/10/2011)
612 ORDER signed by Senior Judge Lawrence K. Karlton on 2/16/11: The Clerk is directed to pay to Collaboration Specialists in accordance with the attached statement. (Attachments: # 1 Statement)(Kaminski, H) (Entered: 02/17/2011)
613 PROPOSED ORDER Proposed Order Confirming Undisputed Fees and Costs for the Fourth Quarter of 2010 by A.Z., R. C., D.K., D.R., L.H., M. N.. (Grunfeld, Gay) (Entered: 03/09/2011)
614 ORDER signed by Senior Judge Lawrence K. Karlton on 3/9/11 ORDERING that the Clerk is directed to pay to Collaboration Specialist 39 Allyn Avenue, San Anselmo, CA 94960 the amount of $13,586.37 in accordance with the attached statement re 394 . A Copy of this order shall be served on the Financial department of this Court. (Attachments: # 1 Attachment)(Mena−Sanchez, L) (Entered: 03/10/2011)
615 ORDER signed by Senior Judge Lawrence K. Karlton on 3/11/2011 ORDERING that Pltfs' fees and costs of $253,579.24, plus interest, are due and collectable as of 45 days from the date of entry of this Order. (Zignago, K.) (Entered: 03/11/2011)
616 ORDER signed by Senior Judge Lawrence K. Karlton on 4/14/11: The Clerk is directed to pay to Collaboration Specialists the amount of $10,961.95 in accordance with the attached statement. (cc: Financial) (Attachments: # 1 Statement;)(Kaminski, H) (Entered: 04/15/2011)
617 MOTION to COMPEL 2010 Rates by A.Z., R. C., D.K., D.R., L.H., M. N.. Attorney Cooppan, Sumana added. Motion Hearing set for 07/18/11 at 10:00 AM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. (Cooppan, Sumana) (Entered: 05/12/2011)
618 DECLARATION of Michael W. Bien in SUPPORT OF 617 MOTION to COMPEL 2010 Rates. (Cooppan, Sumana) (Entered: 05/12/2011)
619 DECLARATION of Gay C. Grunfeld in SUPPORT OF 617 MOTION to COMPEL 2010 Rates. (Cooppan, Sumana) (Entered: 05/12/2011)
620 DECLARATION of Geoffrey Holtz in SUPPORT OF 617 MOTION to COMPEL 2010 Rates. (Cooppan, Sumana) (Entered: 05/12/2011)
621 DECLARATION of Sara Norman in SUPPORT OF 617 MOTION to COMPEL 2010 Rates. (Cooppan, Sumana) (Entered: 05/12/2011)
622 DECLARATION of Susan Burrell in SUPPORT OF 617 MOTION to COMPEL 2010 Rates. (Cooppan, Sumana) (Entered: 05/12/2011)
623 DECLARATION of Richard Pearl in SUPPORT OF 617 MOTION to COMPEL 2010 Rates. (Cooppan, Sumana) (Entered: 05/12/2011)

Case: 2:06-cv-2042 As of: 07/19/2015 05:31 PM PDT 64 of 70

05/12/2011 05/12/2011 05/12/2011 05/12/2011 05/12/2011 05/12/2011 05/12/2011 05/12/2011 06/07/2011
06/13/2011 06/16/2011
06/21/2011 06/27/2011 06/27/2011 06/27/2011 06/27/2011 07/11/2011
07/13/2011

624 DECLARATION of Sanford Jay Rosen in SUPPORT OF 617 MOTION to COMPEL 2010 Rates. (Cooppan, Sumana) (Entered: 05/12/2011)
625 DECLARATION of Maria V. Morris in SUPPORT OF 617 MOTION to COMPEL 2010 Rates. (Cooppan, Sumana) (Entered: 05/12/2011)
626 DECLARATION of Jeff Adachi in SUPPORT OF 617 MOTION to COMPEL 2010 Rates. (Cooppan, Sumana) (Entered: 05/12/2011)
627 DECLARATION of Carter White in SUPPORT OF 617 MOTION to COMPEL 2010 Rates. (Cooppan, Sumana) (Entered: 05/12/2011)
628 DECLARATION of William Chapman in SUPPORT OF 617 MOTION to COMPEL 2010 Rates. (Cooppan, Sumana) (Entered: 05/12/2011)
629 DECLARATION of Jonathan Laba in SUPPORT OF 617 MOTION to COMPEL 2010 Rates. (Cooppan, Sumana) (Entered: 05/12/2011)
630 NOTICE of Filing of Appendix of Previously Filed Declarations by A.Z., R. C., D.K., D.R., L.H., M. N. re 617 MOTION to COMPEL 2010 Rates. (Cooppan, Sumana) (Entered: 05/12/2011)
631 PROPOSED ORDER Granting Motion to Compel 2010 Rates by A.Z., R. C., D.K., D.R., L.H., M. N.. (Cooppan, Sumana) (Entered: 05/12/2011)
632 ORDER signed by Senior Judge Lawrence K. Karlton on 6/6/11 ORDERING that the Clerk is directed to pay to: Collaboration Specialists, 39 Allyn Avenue, San Anselmo, CA 94960, the amt of $55,799.87 in accordance with the attached statement; and a copy of this order shall be served on the Financial Dept of this court. (Attachments: # 1 Statement)(cc Financial)(Becknal, R) (Entered: 06/07/2011)
633 PROPOSED ORDER re Confirming Undisputed Fees and Costs for the First Quarter of 2011 by A.Z., R. C., D.K., D.R., L.H., M. N.. (Bien, Michael) (Entered: 06/13/2011)
634 ORDER signed by Senior Judge Lawrence K. Karlton on 6/15/2011 re 633 ORDERING that plaintiffs' fees and costs of $134,906.46, plus interest, are due and collectable as of forty−five (45) days from the date of entry of this Order. Interest on these fees and costs will run from May 28, 2011 accruing at the rate provided by 28 U.S.C. 1961. (Attachments: # 1 Exhibit A)(Duong, D) (Entered: 06/16/2011)
635 SIXTH REPORT of the Special Master on the status of conditions of the Stipulated Order by Virginia L. Morrison. (Morrison, Virginia) Modified on 6/22/2011 (Reader, L). (Entered: 06/21/2011)
636 OPPOSITION by Arnold Schwarzenegger to 617 Motion to Compel 2010 Rates. Attorney Schneider, Walter R. added. (Schneider, Walter) (Entered: 06/27/2011)
637 DECLARATION of Gary Greenfield in OPPOSITION TO 617 Motion to Compel 2010 Rates. (Schneider, Walter) (Entered: 06/27/2011)
638 DECLARATION of Paul Gruwell in OPPOSITION TO 617 Motion to Compel 2010 Rates. (Schneider, Walter) (Entered: 06/27/2011)
639 REQUEST for JUDICIAL NOTICE by Arnold Schwarzenegger. (Schneider, Walter) (Entered: 06/27/2011)
640 REPLY by plts to 636 Opposition to 617 Motion to Compel 2010 Rates and Motion to Strike Declaration of Gary Greenfield. Attorney Rosen, Sanford Jay added. (Attachments: # 1 Declaration Michael W. Bien, # 2 Declaration Sumana Cooppan)(Rosen, Sanford) Modified on 7/12/2011 (Duong, D). (Entered: 07/11/2011)
641 ORDER signed by Senior Judge Lawrence K. Karlton on 7/11/2011 ORDERING that the hearing re 617 Motion to Compel 2010 Rates currently set for 7/18/2011 is VACATED. The court will delay decision on the pending motion until a decision is issued on the matter in Armstrong. When a decision on the matter is issued in Armstrong, Pltfs SHALL re−notice the motion to compel fees for hearing in this court. If no decision is issued before 8/31/2011, Pltfs SHALL re−notice the motion to compel fees for hearing in this court. (Zignago, K.) (Entered: 07/13/2011)

Case: 2:06-cv-2042 As of: 07/19/2015 05:31 PM PDT 65 of 70

07/18/2011
08/09/2011 08/09/2011 08/09/2011 08/29/2011 09/06/2011 09/06/2011 09/09/2011
09/09/2011
09/12/2011
09/14/2011 09/14/2011 09/30/2011 10/04/2011

642 ORDER signed by Senior Judge Lawrence K. Karlton on 7/18/11 ORDERING that the Clerk is directed to pay to: Collaboration Specialists, 39 Allyn Avenue, San Anselmo, CA 94960 the amount of $20,792.90 in accordance with the attached statement; and A copy of this order shall be served on the financial department of this court. (Attachments: # 1 attachment)(cc financial) (Becknal, R) (Entered: 07/18/2011)
643 ORDER signed by Senior Judge Lawrence K. Karlton on 8/8/11: The court has considered the Sixth Report 635 and ADOPTS its findings and recommendations in full. (Kaminski, H) (Entered: 08/09/2011)
644 ORDER signed by Senior Judge Lawrence K. Karlton on 8/9/11: The Clerk is directed to pay to Collaboration Specialists the amount of $17,561.21 in accordance with the attached statement. A copy of this order shall be served on the financial department of this court. (Attachments: # 1 Statement)(Kaminski, H) (Entered: 08/09/2011)
645 AMENDED NOTICE OF HEARING on 617 Motion to Compel 2010 Rates by A.Z., R. C., D.K., D.R., L.H., M. N.. Motion Hearing RESET for 09/12/11 at 10:00 AM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. (Bien, Michael) Modified on 8/10/2011 (Benson, A.). (Entered: 08/09/2011)
646 RESPONSE by Arnold Schwarzenegger to 645 Amended Notice of Hearing, re 617 Motion to Compel 2010 Rates. (Mello, Paul) Modified on 8/30/2011 (Reader, L). (Entered: 08/29/2011)
647 STIPULATION and PROPOSED ORDER setting certain standards and criteria for Stipulated Order of Injunctive Relief by plaintiffs. (Grunfeld, Gay) Modified on 9/7/2011 (Marciel, M). (Entered: 09/06/2011)
648 PROPOSED ORDER confirming undisputed fees and costs for Second Quarter of 2011 by plaintiffs. (Grunfeld, Gay) Modified on 9/7/2011 (Marciel, M). (Entered: 09/06/2011)
649 ORDER signed by Judge Lawrence K. Karlton on 9/8/11 ORDERING that plaintiffs' fees and costs of $229,139.76, plus interest, are due and collectable as of forty−five (45) days from the date of entry of this Order. Interest on these fees and costs will run from August 22, 2011, accruing at the rate provided by 28 U.S.C. § 1961. (Becknal, R) (Entered: 09/09/2011)
650 ORDER signed by Judge Lawrence K. Karlton on 9/8/11 ORDERING that the Clerk is directed to pay to: Collaboration Specialists, 39 Allyn Avenue, San Anselmo, CA 94960 the amt of $18,079.26 in accordance with the attached stmt; A copy of this order shall be served on the Financial Dept of this court. (Attachments: # 1 Statement) (cc Financial Dept)(Becknal, R) (Entered: 09/09/2011)
651 MINUTES (Text Only) for proceedings held before Judge Lawrence K. Karlton: MOTION HEARING held on 9/12/2011 re 645 Plaintiffs' Motion to Compel 2010 rates filed by D.R., D.K., R. C., M. N., A.Z., L.H.. After oarl argument, the matter stands SUBMITTED. Court order to follow. Plaintiffs Counsel Michael Bien present. Defendants Counsel Walter Schneider present. Court Reporter: C. Bodene. (Rivas, A) (Entered: 09/14/2011)
652 STIPULATION and ORDER setting certain standards and criteria for Stipulated Order of Injunctive Relief 647 signed by Judge Lawrence K. Karlton on 9/13/11. (Attachments: # 1 Exhibit A)(Matson, R) (Entered: 09/14/2011)
653 ORDER granting 617 Motion to Compel signed by Judge Lawrence K. Karlton on 9/13/11. (Kaminski, H) (Entered: 09/14/2011)
654 STIPULATION and PROPOSED ORDER for payment of Attorneys Fees of 2010; First and Second Quarter of 2011 by plaintiffs. (Grunfeld, Gay) Modified on 10/3/2011 (Marciel, M). (Entered: 09/30/2011)
655 ORDER signed by Judge Lawrence K. Karlton on 10/3/11 ORDERING the Clerk to pay to Collaboration Specialists the amount of $8,688.52 in accordance with the attached statement and that a copy of this order be served on the financial department of this court. (cc:Financial). (Attachments: # 1 Special Master Statement − September, 2011)(Meuleman, A) (Entered: 10/04/2011)

Case: 2:06-cv-2042 As of: 07/19/2015 05:31 PM PDT 66 of 70

10/04/2011 10/06/2011 11/07/2011
11/14/2011
12/01/2011 12/05/2011
12/12/2011 12/12/2011 01/09/2012 02/09/2012 02/29/2012 03/02/2012

656 STIPULATION and ORDER signed by Judge Lawrence K. Karlton on 10/3/11 for payment of attorneys' fees for 2010 and the first and second quarters of 2011, pursuant to the court's 9/14/11 order. (Refer to 654 for Exhibit A). (Meuleman, A) (Entered: 10/04/2011)
657 ORDER signed by Judge Lawrence K. Karlton on 10/4/2011 APPROVING the appointment of Deputy Special Master Chris Toombs. (Michel, G) (Entered: 10/06/2011)
658 TRANSCRIPT of Proceedings Re: Motion to Compel 2010 Rates held on September 12th, 2011, before Judge Lawrence K. Karlton, filed by Court Reporter Cathie Bodene, Phone number 916−446−6360 E−mail cbodene@caed.uscourts.gov. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through Court Reporter Cathie Bodene or PACER. Any Notice of Intent to Request Redaction must be filed within 5 court days. Redaction Request due 12/1/2011. Redacted Transcript Deadline set for 12/8/2011. Release of Transcript Restriction set for 2/6/2012. (Bodene, C) (Entered: 11/07/2011)
659 ORDER signed by Judge Lawrence K. Karlton on 11/10/11 ORDERING 1. The Clerk is directed to pay to: Collaboration Specialists 39 Allyn Avenue San Anselmo, CA 94960, the amount of $7,941.18 in accordance with the attached statement; and 2. A copy of this order shall be served on the financial department of this court. IT IS SO ORDERED. (Attachments: # 1 Statement)(cc Financial)(Matson, R) (Entered: 11/14/2011)
660 PROPOSED ORDER re Confirming Undisputed Fees and Costs for the Third Quarter of 2011 and Resolving Dispute Re 2011 Rates re Q1 and Q2 2011 Quarterly Fees by A.Z., R. C., D.K., D.R., L.H., M. N.. (Grunfeld, Gay) (Entered: 12/01/2011)
661 STIPULATION and ORDER signed by Judge Lawrence K. Karlton on 12/02/11 ORDERING that the parties agree that the total payment of $188,116.34 will resolve all fee disputes for Quarters 1, 2 and 3 of 2011 in this matter; plaintiffs' fees and costs of $188,116.34, plus interest, are due and collectable as of forty−five (45) days from the date of entry of this Order. Interest on these fees and costs will run from November 7, 2011, accruing at the rate provided by 28 U.S.C. § 1961. (Attachments: # 1 Exhibit A)(Benson, A.) (Entered: 12/05/2011)
662 ORDER signed by Judge Lawrence K. Karlton on 12/9/2011 ORDERING that the Seventh Report of the Special Master shall be filed with the Court on or before 3/1/2011. (Zignago, K.) (Entered: 12/12/2011)
663 ORDER signed by Judge Lawrence K. Karlton on 12/9/2011 ORDERING that the Clerk is directed to pay to: Collaboration Specialists, 39 Allyn Avenue, San Anselmo, CA 94960 the amount of $11,040.06 in accordance with the attached statement. A copy of this order shall be served on the financial department of this court. (cc: Financial) (Attachments: # 1 Statement) (Zignago, K.) (Entered: 12/12/2011)
664 ORDER signed by Judge Lawrence K. Karlton on 1/9/12: The Clerk is directed to pay to Collaboration Specialists the amount of $16,679.76 in accordance with the attached statement. A copy of this order shall be served on the financial department of this court. (Attachments: # 1 Statement) (Kaminski, H) (Entered: 01/09/2012)
665 ORDER signed by Judge Lawrence K. Karlton on 1/9/12 The Clerk is directed to pay to Collaboration Specialists the amount of $42,259.10 in accordance with the attached statement. A copy of this order shall be served on the financial department of this court. (cc:Financial). (Attachments: # 1 Statement)(Meuleman, A) (Entered: 02/09/2012)
666 SEVENTH REPORT OF THE SPECIAL MASTER by Virginia L. Morrison. (Morrison, Virginia) Modified on 3/1/2012 (Kaminski, H). (Entered: 02/29/2012)
667 ORDER signed by Judge Lawrence K. Karlton on 3/2/12 DIRECTING the Clerk to pay Collaboration Specialists the amount of $12,836.61 in accordance with the attached statement. (cc: Financial) (Attachments: # 1 Statement) (Manzer, C) (Entered: 03/02/2012)

Case: 2:06-cv-2042 As of: 07/19/2015 05:31 PM PDT 67 of 70

03/15/2012 03/19/2012
03/20/2012 03/20/2012 04/06/2012 04/09/2012 04/10/2012 05/08/2012 06/08/2012
06/15/2012 06/18/2012
06/27/2012 07/09/2012
08/06/2012
08/06/2012

668 PROPOSED ORDER re Confirming Undisputed Fees & Costs for 4th Quarter 2011 by A.Z., R. C., D.K., D.R., L.H., M. N.. (Grunfeld, Gay) (Entered: 03/15/2012)
669 ORDER signed by Judge Lawrence K. Karlton on 3/16/12: Plaintiffs' fees and costs of $124,405.36, plus interest, are due and collectable as of forty−five (45) days from the date of entry of this Order. Interest on these fees and costs will run from February 17, 2012, accruing at the rate provided by 28 U.S.C. § 1961. (Attachments: # 1 Exhibit A)(Kaminski, H) (Entered: 03/19/2012)
670 OBJECTIONS by Defendant Arnold Schwarzenegger to 666 Notice − Other. (Wolff, Samantha) (Entered: 03/20/2012)
671 DECLARATION of Samantha Wolff re 666 Notice − Other. (Wolff, Samantha) (Entered: 03/20/2012)
672 REPLY by A.Z., R. C., D.K., D.R., L.H., M. N. re 670 Objections. (Cooppan, Sumana) (Entered: 04/06/2012)
673 ORDER signed by Judge Lawrence K. Karlton on 4/6/12 ORDERING that in order to insure that the record is complete, the Court will order the report, defendants' objections, and the Plaintiffs' reply filed, without further action.(Mena−Sanchez, L) (Entered: 04/09/2012)
674 ORDER signed by Judge Lawrence K. Karlton on 04/09/12 ORDERING the Clerk to pay Collaboration Specialists the amount of $11,042.12 in accordance with the attached statement (cc: Financial). (Attachments: # 1 statement)(Benson, A.) (Entered: 04/10/2012)
675 ORDER signed by Judge Lawrence K. Karlton on 5/7/2012 DIRECTING the Clerk of Court to pay the amount of $13,928.52, to Collaboration Specialists, in accordance with the attached statement. (cc: Sacramento Financial) (Attachments: # 1 Statement for Fees and Disbursements) (Michel, G) (Entered: 05/08/2012)
676 ORDER signed by Judge Lawrence K. Karlton on 6/7/2012 ORDERING that the Clerk is directed to pay Collaboration Specialists the amount of $18,005.15 in accordance with the attached statement. A copy of this order shall be served on the financial department of this court. (cc: financial) (Attachments: # 1 Statement) (Zignago, K.) (Entered: 06/08/2012)
677 PROPOSED ORDER confirming undisputed fees and costs for Q1 2012 by plaintiffs. (Grunfeld, Gay) Modified on 6/19/2012 (Marciel, M) (Entered: 06/15/2012)
678 ORDER signed by Judge Lawrence K. Karlton on 6/18/2012 ORDERING that plaintiff's fees and costs of $154,743.32, plus interest, are due and collectable as of 45 days from the date of entry of this Order. Interest on these fees and costs will run from May 18, 2012, accruing at the rate provided by 28 USC 1961. (Attachments: # 1 Exhibit)(Waggoner, D) (Entered: 06/18/2012)
679 MINUTE ORDER (TEXT ONLY) by CRD. The Order issued on April 9, 2012, ECF No. 673 is amended to include the following: The Finding and Recommendations of the Special Master's Seventh Report are adopted in full. Ordered by Judge Lawrence K. Karlton on June 27, 2012. (Rivas, A) (Entered: 06/27/2012)
680 ORDER signed by Judge Lawrence K. Karlton on 7/9/12 ORDERING that the Clerk is directed to pay to Collaboration Specialists the amount of $15,075.86 in accordance with the attached statement. A copy of this order shall be served on the financial department of this court. (Attachments: # 1 Bill for Services)(Kastilahn, A) (Entered: 07/09/2012)
681 ORDER signed by Judge Lawrence K. Karlton on 8/3/12. The Clerk is directed to pay to: Collaboration Specialists 39 Allyn Avenue San Anselmo, CA 94960 the amount of $23,005.14 in accordance with the attached statement; and A copy of this order shall be served on the financial department of this court. (Mena−Sanchez, L) (Entered: 08/06/2012)
682 EIGHTH REPORT OF THE SPECIAL MASTER by Virginia L. Morrison. (Becknal, R) (Entered: 08/07/2012)

Case: 2:06-cv-2042 As of: 07/19/2015 05:31 PM PDT 68 of 70

09/06/2012 09/06/2012 09/10/2012
10/03/2012 10/19/2012 10/30/2012 11/01/2012 11/29/2012 12/03/2012 12/03/2012
12/14/2012 01/18/2013 02/19/2013

683 ORDER signed by Judge Lawrence K. Karlton on 9/5/12: The court's order dated August 3, 2012 681 , is hereby amended to reflect the month of July, 2012 and the special master's statement for fees and disbursements for the period of July 1 through 31, 2012 is attached. (Attachments: # 1 Statement)(Kaminski, H) (Entered: 09/06/2012)
684 ORDER signed by Judge Lawrence K. Karlton on 9/5/12: The Clerk is directed to pay to Collaboration Specialists the amount of $3,642.20 in accordance with the attached statement. A copy of this order shall be served on the financial department of this court. (cc: Financial) (Attachments: # 1 Statement)(Kaminski, H) (Entered: 09/06/2012)
685 ORDER signed by Judge Lawrence K. Karlton on 09/07/12 ORDERING that the Special Master's 682 Eighth Report is ADOPTED in full; defendants have demonstrated substantial compliance with the requirements detailed herein; these requirements will therefore no longer be a primary focus of plaintiffs' or the Special Master's monitoring unless and until it comes to the parties' or the Special Master's attention that there has been a significant decline in compliance. (Benson, A.) (Entered: 09/10/2012)
686 NOTICE of Change in Counsel by All Defendants. (Mello, Paul) (Entered: 10/03/2012)
687 PROPOSED ORDER confirming undisputed fees and costs for Second Quarter of 2012 by plaintiffs. (Grunfeld, Gay) Modified on 10/22/2012 (Marciel, M) (Entered: 10/19/2012)
688 DESIGNATION OF COUNSEL by All Plaintiffs. (Grunfeld, Gay) Modified on 10/31/2012 (Meuleman, A). (Entered: 10/30/2012)
689 ORDER signed by Judge Lawrence K. Karlton on 10/31/12 ORDERING that plaintiffs' fees and costs of $151,993.32, plus interest, are due and collectable as of forty−five (45) days from the date of entry of this Order. Interest on these fees and costs will run from 8/9/12, accruing at the rate provided by 28 U.S.C. § 1961. (Attachments: # 1 Exhibit)(Becknal, R) (Entered: 11/01/2012)
690 PROPOSED ORDER confirming undisputed fees and costs for Third Quarter 2012 by A.Z., R. C., D.K., D.R., L.H., M. N.. (Grunfeld, Gay) Modified on 11/30/2012 (Marciel, M) (Entered: 11/29/2012)
691 ORDER signed by Judge Lawrence K. Karlton on 12/3/2012 ORDERING 394 that the Clerk is directed to pay to: Collaboration Specialists, San Anselmo, CA, the amount of $1,272.29 in accordance with the attached statement; and a copy of this order shall be served on the financial department of this court. (cc: CFS) (Attachments: # 1 Statement of Fees)(Reader, L) (Entered: 12/03/2012)
692 ORDER CONFIRMING UNDISPUTED FEES AND COSTS FOR THIRD QUARTER signed by Judge Lawrence K. Karlton on 12/3/2012 ORDERING that plaintiffs' fees and costs of $187,587.37, plus interest, are due and collectable as of 45 days from the date of entry of this Order. Interest on these fees and costs will run from 11/25/2012, accruing at the rate provided by 28:1961. (Attachments: # 1 Exhibit A)(Reader, L) Modified on 12/4/2012 (Reader, L). (Entered: 12/03/2012)
693 STIPULATION and PROPOSED ORDER for Setting Forth Process for Terminating Stipulated Order for Permanent Injunctive Relief by L.H.. (Bien, Michael) (Entered: 12/14/2012)
694 STIPULATION and ORDER signed by Judge Lawrence K. Karlton on 1/17/13 Setting forth process for terminating Stipulated Order for Permanent Injunctive Relief. (Mena−Sanchez, L) (Entered: 01/18/2013)
695 MOTION to TERMINATE the Stipulated Order for Permanent Injunctive Relief by plaintiffs. Motion Hearing set for 3/25/2013 at 10:00 AM in Courtroom 4 (LKK) before Judge Lawrence K. Karlton. (Attachments: # 1 Declaration of Sumana Cooppan Wolf in support, # 2 Declaration of Kathryn Johnson in support, # 3 Declaration of Shelly Jones in support, # 4 Proposed Order by plaintiffs granting Motion, # 5 Proposed Order by defendants granting Motion) (Bien, Michael) Modified on 2/21/2013 (Marciel, M) (Entered: 02/19/2013)

Case: 2:06-cv-2042 As of: 07/19/2015 05:31 PM PDT 69 of 70

03/12/2013 03/13/2013 03/18/2013 03/19/2013 03/25/2013
04/01/2013
04/02/2013 06/04/2013 06/06/2013 06/06/2013 06/11/2013 06/28/2013

696 ORDER by Chief Judge Morrison C. England, Jr.: Due to the recalled appointment of Magistrate Judge * Gregory G. Hollows* to the bench of the Eastern District, this action is reassigned to *Magistrate Judge Dale A. Drozd* for all further proceedings. (Donati, J) (Entered: 03/12/2013)
697 PROPOSED ORDER re Confirming Undisputed Fees and Costs for Fourth Quarter 2012 by A.Z., R. C., D.K., D.R., L.H., M. N.. (Grunfeld, Gay) (Entered: 03/13/2013)
698 NOTICE regarding recommendation of the special master in support of 695 joint motion to terminate stipulated order for permanent injunctive relief. (Kastilahn, A) (Entered: 03/18/2013)
699 ORDER CONFIRMING UNDISPUTED FEES AND COSTS FOR FOURTH QUARTER 2012 signed by Judge Lawrence K. Karlton on 3/19/2013 ORDERING that Plaintiffs' fees and costs of $112,431.98, plus interest, are due and collectable as of 45 days from the date of entry of this Order; ORDERING that interest on these fees and costs will run from 2/28/2013, accruing at the rate provided by 28 U.S.C. § 1961. (Attachments: # 1 Exhibit A) (Michel, G) (Entered: 03/19/2013)
700 MINUTES (Text Only) for proceedings held before Judge Lawrence K. Karlton: MOTION HEARING held on 3/25/2013 re 695 Joint Motion to terminate Stipulated Order for Permanent Injunctive Relief filed by D.R., D.K., R.C., M.N., A.Z., L.H. After oral argument, the Motion to be GRANTED. The parties are instructed to file any claims for monetary obligations within 20 days from today's date. Plaintiffs Counsel Sumana Wolf present. Defendants Counsel Samantha Wolff present. Court Reporter: K. Swinhart. (Rivas, A) (Entered: 03/25/2013)
701 ORDER signed by Judge Lawrence K. Karlton on 3/29/13 GRANTING 695 Motion to Terminate Stipulated Order for Permanent Injunctive Relief. The 438 Stipulated Order for Permanent Injunctive Relief shall apply in full force until the last scheduled hearing (including hearings requested as a result of the activation of optional waivers) has taken place. During this time, the parties shall continue to track and monitor defendants' compliance with the Injunction. Defendants shall notify plaintiffs' counsel, the Special Master, and the Court once the last scheduled hearing has been completed. Ten (10) days after defendants file such notification, defendants shall be relieved of any duty to comply with the requirements emanating from the Injunction, until the last parolee serving a revocation term has been released from custody, except for the following provisions: tracking parolee discharge dates to ensure that parolees are not over−detained; notifying plaintiffs' counsel, the Special Master, and the Court once the last parolee serving a revocation term has been released from custody; upon defendants' notification that the final class member has been released, the parties and the Special Counsel shall, within 20 days, file their motions, if any, for attorneys' fees, and fees for the Special Master Court; upon resolution of the fee motions, the court will terminate this case. (Meuleman, A) (Entered: 04/01/2013)
702 ORDER signed by Judge Lawrence K. Karlton on 4/1/13 DIRECTING the Clerk to pay to Collaboration Specialists 39 Allyn Avenue San Anselmo, CA 94960 the amount of $9,262.31 in accordance with the attached statement; and a copy of this order shall be served on the financial department of this Court. (Attachments: # 1 Attachment 1)(Mena−Sanchez, L) (Entered: 04/02/2013)
703 PROPOSED ORDER re Confirming Undisputed Fees and Costs for First Quarter 2013 by A.Z., R. C., D.K., D.R., L.H., M. N.. (Grunfeld, Gay) (Entered: 06/04/2013)
704 NOTICE To Court Regarding Class Status by Arnold Schwarzenegger. (Wolff, Samantha) (Entered: 06/06/2013)
705 DECLARATION of Shelly Jones re 704 Notice − Other. (Wolff, Samantha) (Entered: 06/06/2013)
706 ORDER signed by Judge Lawrence K. Karlton on 6/11/2013 ORDERING that plaintiff's fees and costs of $79,112.88, plus interest, are due and collectable as of 45 days from the date of entry of this order. Interest on these fees and costs will run from May 11, 2013, accruing at the rate provided by 28 USC 1961. (Attachments: # 1 Exhibit A)(Waggoner, D) (Entered: 06/11/2013)
707 NOTICE to Court Regarding Class Status by Arnold Schwarzenegger. (Wolff, Samantha) (Entered: 06/28/2013)

Case: 2:06-cv-2042 As of: 07/19/2015 05:31 PM PDT 70 of 70

06/28/2013 06/28/2013 07/09/2013 07/10/2013
07/10/2013 07/12/2013 07/19/2013 01/16/2014

708 DECLARATION of Kathryn Johnson re 707 Class Status. (Wolff, Samantha) Modified on 7/1/2013 (Mena−Sanchez, L). (Entered: 06/28/2013)
709 EXHIBIT A to Declaration of Kathryn Johnson by Arnold Schwarzenegger re 708 Declaration. (Wolff, Samantha) (Entered: 06/28/2013)
710 LETTER from Special Master Ginny Morrison requesting that the Office of the Special Master be terminated. (Rivas, A) (Entered: 07/09/2013)
711 ORDER signed by Judge Lawrence K. Karlton on 7/9/2013 ORDERING the Stipulated Order for Permanent Injunctive Relief 438 , is hereby TERMINATED; the Clerk of the Court is directed to close this case. CASE CLOSED (Reader, L) (Entered: 07/10/2013)
712 JUDGMENT dated *7/10/2013* pursuant to order, signed by Judge Lawrence K. Karlton on 7/9/2013. (Reader, L) (Entered: 07/10/2013)
713 Plaintiffs' [PROPOSED] ORDER re Confirming Undisputed Fees and Costs. (Grunfeld, Gay) Modified on 7/15/2013 (Mena−Sanchez, L). (Entered: 07/12/2013)
714 ORDER signed by Judge Lawrence K. Karlton on 7/19/13 CONFIRMING undisputed fees and costs. (Manzer, C) (Entered: 07/19/2013)
715 ORDER signed by Judge Lawrence K. Karlton on 1/15/14: The Office of the Special Master is hereby TERMINATED. The Clerk of the Court shall return all funds remaining in the special account, plus interest, to defendants. (Kaminski, H) (Entered: 01/16/2014)

 
 1 ROSEN, BIEN & GALVAN, LLP

MICHAEL W. BIEN- 096891

2

GAY C. GRUNFELD 121944 MEGHAN R. LANG 221156

MARIA V. MORRIS 223903

3 SHIRLEY HUEY 224114

NURA MAZNAVI 232008

4

3S1A5RAMoHntMg.omLerAyUBSAtrCeeHt

240526 Tenth Floor

5 TSeanlepFhroannec:isco(,415C)ali4f3o3r-ni6a83094104

6 BINGHAM McCUTCHEN LLP

GEOFFREY HOLTZ 191370

7

KRISTEN A. PALUMBO 215857 BRIANA LYNN ROSENBAUM 239977

Three Embarcadero Center

8 TSeanlepFhroannec:isco(,415C)ali3f9o3r-ni2a00094111-4067

9 Attorneys for Plaintiffs

YOUTH LAW CENTER

SUSAN L. BURRELL 074204

CAROLE SHAUFFER- 100226

CORENE 200 Pine

KENDRICK
Street, 3rd Floor

226642

TSeanlepFhroannec:isco(,41C5)A54394-1303479

PRISON LAW OFFICE

DONALD SPECTER- 83925

SARA NORMAN 189536

B1e9r1k7elFeiyf,th Telephone:
Facsimile:

Street
Cal((i55f11o00r))ni2a288009--422767120014-1916

10 EDMUND G. BROWN JR.

DAVID S. CHANEY

11 FRANCES T. GRUNDER

ROCHELLE C. EAST

12 13 14

WILLIAM C. KWONG, State Bar No. 168010
EFT4Sam5aexa5nl:ielpFG:h(ro4oal1nnWd5ecl)e:ilnslc7o(i0G4,a3a1m-t5e5.)C8KA4wA73vo09en34ng-1u5@0e7d2,2o-4j7.S0uc0ia4te.go1v1000

15 Attorneys for Defendants

UNITED STATES DISTRICT COURT 16
EASTERN DISTRICT OF CALIFORNIA

17 18

L.H., A.Z.,
themselves
parolees in

D.K., D.R.,
and all other

M.sNim.i,laralnyd

California,

sRi.tCu.a,tedon

behalf
juvenile

of

Case No. 2:06-CV-02042-LKK-GGH STIPULATED ORDER FOR

19

Plaintiffs,

PERMANENT INJUNCTIVE RELIEF

VS.

20 21 22 23

JJRUCAoC•ufenhausRhdli.taiCveeNieabffrcnOloiesiirl;elLDfnieceoiDtrCrpaaePnutA•titaiDaaRrSyo,reonOlCype,LaSMH;(erIAWc"tCDNrCmATDeEADetRTCNnCaRZtNRHr;yG"IEE)ASoNW;fRoBEfCCEDGIDtoLRhUArGA.erLN,VEeACDAIcRiAYtRDDv,iT,iiDoErsne,iRscoGAtUWncooSNatvrAneie,NodcRnrfErgnNeDLoJtEiruLDavRv,reiSey,spn,iuiSotlt(naeAyt)e,of

24

DOipreercattoironso;r
Director of

the Division of Juvenile Parole

MARTFN the Board

oHf OPSarHoIleNOH,earEixencgust(i"vBePH");

25

JAMES DAVIS, ARREDONDO,

Chair PAUL

of the BPH; CHABOT,

JO-YCE JOSEPH

26 MSCUAOPRMPTPLIETN,OENtC,ommSAiUSsKSsIiAoANneMArEsBLULaAnMNdASJBOEoa]Nr•dD,RTeHpraOenMdseAnCStHatUivCeKs,

27

CDCR; DIVISION OF JUVENILE JUSTICE; BOARD OF PAROLE HEARINGS; and the

JUVENILE PAROLE BOARD,

28

Defendants.

[215655-1]

STIPULATED ORDER FOR PERMANENT INJUNCTIVE RELIEF Case No. 2:06-CV-02042-LKK-GGH

1

The parties hereby stipulate that they shall ask the Court to ADJUDGE,

2 DECLARE, AND DECREE as follows:

3

INTRODUCTION

4

1. This action was filed on September 13, 2006. Plaintiffs, on behalf of

5 themselves and the class they represent, challenge the constitutionality of the juvenile

6 Parole Revocation process conducted by the California Board of Parole Hearings 7 ("BPH"), the Division of Juvenile Justice ("DJJ"), the Juvenile Parole Board ("JPB"), and

8 the California Department of Corrections and Rehabilitation ("CDCR"). Plaintiffs' First

9 Amended Complaint contains claims for violation of due process, equal protection, the

10 Americans with Disabilities Act ("ADA")/Rehabilitation Act, and denial of the right to

11 counsel. Plaintiffs' claims regarding proceedings leading up to and including Parole 12 Revocation Hearings are resolved through this Stipulated Order for Permanent Injunctive 13 Relief ("Injunction"). The role of Plaintiffs in monitoring is not resolved through this

14 Injunction and will be resolved separately.

15

2. The Court certified this case as a class action by Order dated February 28,

16 2007. The Defendants are state agencies and state officials responsible for the policies, 17 procedures, and practices by which California conducts juvenile parole revocation

18 hearings. This Court issued an Order granting partial summary judgment on

19 September 19, 2007, and a preliminary injunction on attorney appointment and ADA

20 accommodations issued on January 29, 2008.

21

3. The parties stipulate that this is not a "civil action with respect to prison

22 conditions," as those terms are defined and applied in the Prison Litigation Reform Act

23 ("PLRA"), 18 U.S.C. § 3626, and that, therefore, this case and this Injunction are not

24 governed by the PLRA.

25 I. PARTIES

26

4. The Plaintiff Class consists of the following persons: Juvenile Parolees in

27 or under the jurisdiction of California, including all Juvenile Parolees with Disabilities, as

28 that term is defined in Section 504 of the Rehabilitation Act and the ADA, who are: (i) in

1

[215682-1]

STIPULATED ORDER FOR PERMANENT INJUNCTIVE RELIEF

1 the community under parole supervision or who are at large; (ii) in custody in California 2 as alleged parole violators, and who are awaiting revocation of their parole; or (iii) in 3 custody, having been found in violation of parole and returned to custody. The fact that

4 they have attained majority does not exclude them from the Class. They remain Class

5 members until they are discharged from the jurisdiction of the DJJ.

6

5. The Defendants are state agencies and state officials responsible for the

7 policies, procedures, and practices by which California conducts Juvenile Parole

8 Revocation Hearings and other proceedings. Defendant Arnold Schwarzenegger is

9 Governor of the State of California and Chief Executive of the state government.
10 Defendant Matthew L. Cate is the Secretary of the California Department of Corrections 11 and Rehabilitation ("CDCR"). David Runnels is the Undersecretary of CDCR. 12 Defendant Bernard Warner is the Chief Deputy Secretary of the Division of Juvenile 13 Justice ("DJJ"). Defendant Carolina Garcia is the Acting Director, Division of Juvenile 14 Parole. Defendant Chuck Supple is the Executive Officer of the Juvenile Parole Board 15 ("JPB"). Defendants Joyce Arredondo, Joseph Compton, Susan Melanson, Thomas 16 Martinez, Askia Abdulmajeed and Chuck Supple are Commissioners and Board 17 Representatives of Defendant JPB. This Injunction is binding on all successor agencies to 18 Defendants CDCR, D J J, and JPB. County governments and local law enforcement 19 agencies are not parties to this action and are not bound by the terms of this stipulated 20 injunction.

21 II. DEFINITIONS

22

6. The following terms when used in this Injunction shall have the meanings

23 specified below:

24 25 26 27 28
[215682-1]

a. "Day(s)" shall mean calendar days, unless otherwise specified. b. "Probable Cause Hearing" shall mean a hearing in which the Juvenile
Parolee appears and at which it is determined whether there is
probable cause to believe that the Juvenile Parolee has violated a condition of parole and, if so, whether the Juvenile Parolee should be
2
STIPULATED ORDER FOR PERMANENT INJUNCTIVE RELIEF

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
[215682-1]

detained during the Revocation Process. Co "Revocation Hearing" shall mean a hearing in which the Juvenile
Parolee appears and at which it is determined whether the
preponderance of the evidence shows that the Juvenile Parolee violated a condition of parole. "Revocation Process" or "Revocation Proceedings" shall mean all stages of the process by which a Juvenile Parolee may be returned to or retained in custody following an alleged parole violation and a Welfare and Institutions Code section 1767.3 hold has been placed up to and including the Revocation Hearing or administrative appeals thereof. This term also includes Revocation Extension Hearings, defined below at section (j). "Parole Hold" shall mean any invocation by Defendants of their authority to involuntarily detain a Juvenile Parolee for Revocation Proceedings and/or commence Revocation Proceedings pursuant to
Welfare and Institutions Code section 1767.3. This term shall not
apply to the detention of a parolee who has absconded from the State of California until he or she is physically returned to the State of California and is in custody. "Temporary Detention" is the detention of a parolee for 30 Days or less for treatment purposes, to redefine the conditions of parole and/ or to find placements for Juvenile Parolees. "Disability" and "Disabilities" shall be defined in the same manner as to include all persons considered to have a Disability under the
Americans with Disabilities Act and/or Rehabilitation Act.
ho "Corrective Action Plan" shall be defined as a program of treatment
or supervision in the community in lieu of incarceration in the DJJ. "Revocation Extension Hearing" shall mean a hearing in which the
3
STIPULATED ORDER FOR PERMANENT INJUNCTIVE RELIEF

1

Juvenile Parolee appears before the Juvenile Parole Board, at which it

2

is determined whether the preponderance of the evidence shows that

3

the Juvenile Parolee committed willful program failure or serious in-

4

custody misconduct, and in which a Juvenile Parolee's parole

5

revocation period may be extended. A parolee's parole revocation

6

period may not be extended because of Defendants' failure to provide

7

a recommended program at all or in a timely manner.

8

jo "Not in Custody Hearing" (NIC) is a revocation hearing for a parolee

9

whose is no longer under a parole hold.

10

11 III. FINDINGS

12

7. On September 19, 2007, this Court granted partial summary judgment in

13 favor of Plaintiffs, holding that California's Juvenile Parole Revocation system violates

14 the due process rights of the Plaintiff class under Morrissey v. Brewer, 408 U.S. 481

15 (1972), and related authority.

16

8. On January 29, 2008 this Court held that Defendants' failure to appoint

17 counsel for all Juvenile Parolees under Gagnon v. Scarpelli, 411 U.S. 778 (1973) is 18 violative of the due process rights of the Plaintiff class

19

9. In the court order dated January 29, 2008, the Court also found that

20 Defendants' policies and practices violated the Americans with Disabilities Act (ADA),

21 and the Rehabilitation Act.

22

10. The remedy provided in this Injunction is narrowly drawn, extends no

23 further than necessary to correct the violation of federal rights, and is the least intrusive

24 means necessary to correct the violation of the federal rights. Nothing in this injunction is 25 an admission by Defendants of the establishment of a new constitutional standard for 26 parole revocation proceedings.

27 IV. POLICIES, PROCEDURES, REGULATIONS, AND PLANS

28

11. Within 90 days of the parties signing this Stipulated Injunction, and no later

4

I215682-1]

STIPULATED ORDER FOR PERMANENT INJUNCTIVE RELIEF

than September 15, 2008, Defendants shall develop sufficiently specific draft Policies,

Procedures, and Plans ("Policies and Procedures") that will ensure that Revocation 3 Proceedings are in continuous compliance with all of the requirements of the Constitution 4 and applicable statutes. The Policies and Procedures will also address a method for 5 accurately tracking the timeliness of hearings and other proceedings in the Parole

6 Revocation Process, the timely provision of accommodations for Juvenile Parolees'

7 disabilities and effective communication needs, NIC hearings, dual commitments, parole

8 exit meetings, and promulgation of any Rules and Regulations needed to implement this 9 Injunction. The Policies and Procedures will further address disputed implementation

10 issues such as telephonic Probable Cause Hearings, what circumstances may constitute 11 good cause for delayed hearings and remedies for untimely hearings. As soon as 12 reasonably possible, Defendants will post notice of the material terms of the settlement of

13 the class action lawsuit on their web site, in institutional living units and libraries, in the 14 Office of the Ombudsman, and shall make them available to the public upon request. 15 Defendants will undertake a review of existing regulations, rules and procedures and 16 ensure that they are consistent with this agreement and the policies and procedures that 17 implement this agreement.

18

12. For all Policies and Procedures developed under this Injunction, the parties

19 shall use the following process: Defendants shall submit all draft Policies and Procedures

20 to Plaintiffs and to Special Master Chase Riveland prior to their implementation. The

21 parties shall meet and confer in good faith with the Special Master at least one time within 22 fourteen business days of Defendants' submission to Plaintiffs. If the parties reach an 23 impasse on any particular issues, either party may bring the disputed issues to the Court in

24 a motion to be heard on shortened time, or the parties may agree to use the dispute 25 resolution process set forth in the Order of Reference. Defendants shall submit the initial

26 draft Policies and Procedures required by this Injunction to Plaintiffs' counsel no later 27 than 90 days after the parties sign this Stipulated Injunction. Defendants shall file their

28 proposed Policies and Procedures with the Court no later than 150 days after the parties

5

[215682-1]

STIPULATED ORDER FOR PERMANENT INJUNCTIVE RELIEF

1 sign this Stipulated Injunction. The Court will resolve any remaining disputed issues by
2 noticed motion.

3

13. Defendants shall incorporate the Juvenile Parole Board revocation hearing

4 business process requirements within the existing Revocation Scheduling and Tracking

5 System within six months of the signing of this Stipulation.

6 V. DUE PROCESS REQUIREMENTS

7

14. No later than 180 days of the signing of this Stipulation, and no later than

8 December 15, 2008, Defendants shall have fully implemented the reforms to their

9 Revocation Process by making the changes described in ¶¶ 15 to 46 below.

10

A. Right to Counsel

11

15. Commencing on or before February 15, 2008, Defendants shall appoint

12 counsel to represent each and every Juvenile Parolee in the Revocation Process as

13 described below.

14

16. For Probable Cause Hearings and Parole Revocation Hearings, counsel shall

15 be appointed no later than 8 business Days after imposition of the Parole Hold. At the

16 time of appointment, counsel shall be notified of the date, time, and location of the

17 hearing and the name of parolee, and shall receive a copy of all the evidence in the State's

18 possession on which the State intends to rely or which may be exculpatory, and relevant

19 educational, mental health and disability identification, and source documents to be

20 agreed upon through the development of Policies and Procedures. Defendants shall take

21 all reasonable steps to enable counsel to meet with the Juvenile Parolee at least 24 hours
22 prior to the Probable Cause Hearing.

23

17. Defendants shall not accept any written admissions to a violation of a

4 condition of parole, or waivers of hearing rights, or the right to counsel made prior to the

25 Juvenile Parolee's first meeting with his or her counsel. Waivers are further detailed at

26 Paragraph 31.

27

18. At the request of the Juvenile Parolee, he or she may decline to be

28 represented by appointed counsel in Revocation Proceedings and may instead be

[215682-1]

6
STIPULATED ORDER FOR PERMANENT INJUNCTIVE RELIEF

1 represented by counsel of his or her own choosing at his or her own cost, including his or 2 her public defender or other appointed counsel, retained counsel, or pro bono counsel. 3 Such counsel shall have the same rights under this Injunction, except as to compensation, 4 as counsel appointed by Defendants. Defendants shall develop a process for timely 5 notifying a Juvenile Parolee's counsel of record or public defender of the imposition of a
6 Parole Hold.

7

19. At the time of appointment, counsel shall be provided with all of the

8 evidence in the State's possession that the State intends to rely upon or that may be 9 exculpatory as defined in paragraph 16. After appointment of counsel, if Defendants

10 receive or learn of such additional evidence or documents, they shall produce them to the

11 Juvenile Parolee's counsel as soon as possible thereafter. Evidence or documents not 12 provided to the Juvenile Parolee's counsel at least 48 hours prior to the hearing shall not

13 be admitted or considered in the hearing unless Defendants can show good cause for the 14 delay.

15

20. A Juvenile Parolee's counsel shall not be denied reasonable access to all of

16 their clients' files. Defendants shall develop Policies and Procedures that detail how

17 counsel shall timely access and obtain copies of relevant information in a Juvenile
18 Parolee's files.

19

21. Defendants shall develop standards, guidelines, and training for effective

20 assistance of state-appointed counsel in the Revocation Process that shall include

21 standards for panel administration, training and continuing education, quality assurance, 22 independence, statewide oversight and individual representation.

23

22. Defendants' Policies and Procedures shall ensure that at the time of

24 appointment, counsel appointed to represent Juvenile Parolees who have difficulty in

25 communicating or participating in Revocation Proceedings because of Disabilities or 26 effective communication needs shall be informed of the nature of the difficulty, including

27 but not limited to mental illness, other cognitive or communication impairments, 28 illiteracy, limited English-language proficiency, and the need for a foreign language

7

[215682-1]

STIPULATED ORDER FOR PERMANENT INJUNCTIVE RELIEF

1 interpreter.

2

23. Counsel shall be given reasonably adequate time to represent the Juvenile

3 Parolee properly at each stage of the proceeding, including administrative appeals.

4 Defendants shall not unreasonably limit the amount of time an attorney spends with his or 5 her client, nor shall they unreasonably delay or prevent an attorney's access to the client 6 consistent with institutional safety and security. Defendants shall provide reasonable

7 space for attorneys to meet with clients in confidence and, in the event that there is a
8 physical barrier between attorneys and their clients, provide a mechanism for attorneys to 9 confidentially share documents with their clients consistent with institutional safety and

10 security. Defendants shall make available necessary reasonable accommodations, 11 including, but not limited to, sign language interpreters, language interpreters, magnifying

12 glasses, and hearing devices for attorney interviews with their clients, and unmonitored

13 confidential telephone calls between attorneys and their clients. Anytime a DJJ staff 14 person, for the purposes of institutional safety and security, is observing a parolee on the 15 telephone with his or her attorney, or observing an attorney-parolee meeting, the DJJ staff

16 person must not be any individual who will play a role in the current Revocation 17 Proceedings or in preparing recommendations for the parole board in the current 18 Revocation Proceedings. Such DJJ staff person is strictly forbidden from sharing any 19 information he or she may have inadvertently heard or seen from the attorney-client 20 meeting except for new crimes or new parole violations that occur during the course of the 21 observation. The presence of DJJ staff near an in-person or telephonic attorney-client 22 meeting does not waive attorney-client privilege.

23

24. State-appointed counsel for Juvenile Parolees shall be appropriately

24 compensated for preparation for the hearings, and representation during the hearings, and

25 for filing and pursuing administrative appeals of the hearing decision, as described in ¶ 43.

26

B. Nature and Timing of Proceedings

27

25. Parole violations that consist of Level I or Level II behaviors may be

28 resolved by the Parole Agent and Supervising Parole Agent at the field unit level without

[215682-1]

8
STIPULATED ORDER FOR PERMANENT INJUNCTIVE RELIEF

1 requiring final approval by the Juvenile Parole Board. Nothing in this injunction shall

2 preclude the referral of Level I or Level II behaviors for parole revocation.

3

26. Defendants shall provide an expedited Probable Cause Hearing within 10

4 business Days of the Parole Hold upon a sufficient offer of proof by a Juvenile Parolee's

5 counsel that there is a complete defense to all parole violation charges that are the basis of

6 the Parole Hold. Counsel shall be provided with telephone and email or fax access to a

7 decision maker who can receive requests for expedited Probable Cause Hearings. Such

8 requests may be made by counsel at any time. Defendants shall respond to such requests

9 no later than 1 business Day after they are made. If such requests are denied, the basis for 10 denial shall be stated in writing.

11

27. No later than two business Days after the Parole Hold is placed, the Parole

12 Agent and Supervising Parole Agent will confer to: 1) determine whether probable cause

13 exists to continue the Parole Hold and the detention of the Juvenile Parolee pending a

14 formal Probable Cause Hearing, and will document their determination in writing on a 15 form to be developed in accordance with ¶ 55 below, and 2) consider whether alternatives

16 to incarceration are warranted. The advisability of alternatives to incarceration shall be

17 considered again at the Probable Cause Hearing and at the Revocation Hearing. Nothing

18 in this Injunction obligates Defendants to offer alternatives to incarceration to any 19 particular Juvenile Parolee at any time. Any determination of probable cause at this stage

20 shall not be considered in any manner at the Probable Cause Hearing. Defendants shall

21 comply with all anti-discrimination laws in making parole placements or referral to

22 programs, activities, or services.

23

28. If the Juvenile Parolee remains in custody, no later than 3 business Days

24 after the placement of the Parole Hold, the Parolee shall be served with actual notice of

25 the alleged parole violation, including a short factual summary of the charged conduct and

26 written notice of the Juvenile Parolee's rights regarding the Revocation Process and

27 time frames.

28

29. If the Juvenile Parolee remains in custody, no later than 9 business Days

[215682-1]

9
STIPULATED ORDER FOR PERMANENT INJUNCTIVE RELIEF

after the placement of a Parole Hold, a Return to Custody Assessment (RTCA)/CAP shall be made by a hearing officer.

3

30. If the Juvenile Parolee remains in custody, no later than 10 business Days

4 after the placement of a Parole Hold, the RTCA/CAP offer shall be communicated to the

5 Juvenile Parolee's appointed attorney.

6

31. A Juvenile Parolee who wishes to waive the right to, or seek a continuance

7 of, a timely Probable Cause Hearing and/or a Parole Revocation Hearing may elect to do

8 so. Waiver may be effectuated only upon written consent of the Juvenile Parolee after he

9 or she has had an opportunity to meet with his or her attorney, and such writing is made in

10 the presence of his or her attorney.

11

32. For all Juvenile Parolees who do not waive or seek a continuance of a timely

12 Probable Cause Hearing, Defendants shall provide a live hearing to determine probable

13 cause no later than 13 business Days after the Parole Hold is placed. The Juvenile

14 Parolee, represented by counsel, shall be present and permitted to speak at this hearing

15 and to present documentary evidence. Nothing in this injunction either allows the

16 Juvenile Parolee or requires Defendants to have any witness or witnesses at the Probable 17 Cause Hearings. Defendants shall develop a mechanism for accurately tracking the

18 timeliness of the Probable Cause Hearings and reasons proffered for any delays. 2

19

33. For all Juvenile Parolees who do not waive or seek a continuance of a timely

20 Parole Revocation Hearing, Defendants shall provide a live, in-person, face-to-face final

21 Revocation Hearing on or before the 35th calendar Day after the Parole Hold is placed

22

absent

good

3 cause.

The

Juvenile

Parolee,

represented

by

counsel,

shall

have

the

right

to

23

24 25

mvtfaeiiTc!dnehee,eipohmcaouPonnlnmdiafcienetrdxoiueprfenrfcevsipiCsrndllogaeycsoescssrosuecnbsosfertnereitrvqteeeuunsntidcirsoieintnmsgtehnrfaoitturgssh.tesPsdurcohtbaotahblPeliraetoirgbiaaCntbgaelsuestehsehCoaHiuueslsasdreueinbHgeoesfa.hravieDtn,•eglfse•enpnfcdtio)aomennrpitsclsoine,6srcoannwtdietnhfdacet-htaot-

26 Defendants shall develop Pohc•es and Procedures defimng when prejudice is presumed

27 Rafetveorcaa tcieorntaiHnealreinnggt.h of delay in providing a Probable Cause Hearing or a Parole

28

3 Defendants shall develop Policies and Procedures time frame violations, in accordance with ¶ 12.

defining

good

cause

and

remedies

for

10

[215682-1]

STIPULATED ORDER FOR PERMANENT INJUNCTIVE RELIEF

1 present evidence, including through the testimony of live witnesses. The charged Juvenile

2 Parolee shall have the same right to subpoena witnesses and present evidence to the same

3 extent and on the same terms as Defendants, including the right to question witnesses

4 through their attorney. Defendants shall develop a mechanism for accurately tracking the

5 timeliness of the Revocation Hearings and reasons proffered for any delays.

6

34. All charges arising from the conduct for which the Juvenile Parolee was

7 taken into custody shall be adjudicated at the final Revocation Hearing within 35 calendar

8 Days from the placement of the Parole Hold absent good cause. Charges may not be split

9 going beyond 35 days in the absence of good cause, including any attempts to evade the

10 35 calendar Day timeline; all known charges arising from conduct known to Defendants

11 must be brought at a reasonable time prior to the hearing.

12

35. A Juvenile Parolee may be returned to custody for up to one year for a

13 parole violation. Defendants will develop a matrix of ranges of revocation terms for

14 specific violations. A Juvenile Parolee's revocation period shall not be extended beyond

15 the one-year period except in circumstances of willful program failure or serious in-

16 custody misconduct. A parolee's parole revocation period may not be extended because

17 of Defendants' failure to provide a recommended program at all or in a timely manner.

18 Defendants may extend a Juvenile Parolee's revocation period only after a Revocation

19 Extension Hearing which shall take place before a Juvenile Parole Board Hearing Officer

20 at the earliest practical time after the alleged conduct that is grounds for the charge. In the

21 event that the alleged conduct that is grounds for the charge occurs within 30 days prior to

22 the Juvenile Parolee's revocation release date, the Revocation Extension Hearing must

23 occur at the earliest practical time after the alleged conduct, but, in any event, no later 24 than 35 days after his or her revocation release date, absent good cause for going beyond

25 that time. A Juvenile Parolee who faces a Revocation Extension Hearing shall be

26 represented by counsel at the hearing and have all of the same rights articulated in ¶¶ 41,

27 42, and 43. Defendants agree to modify or rescind all regulations or policies and

28 procedures that are inconsistent with the terms of this provision, including Treatment and

11

[215682-1]

STIPULATED ORDER FOR PERMANENT INJUNCTIVE RELIEF

1 Training Time-Adds, DDMS, and parole consideration hearings as they relate to the

2 Parole Revocation and Revocation Extension process.

3

36. All Parole Revocation Hearings shall be held within a 50-mile radius of the

4 alleged violation. The location of hearings shall be accessible to and usable by Juvenile

5 Parolees with Disabilities.

6

37. The use of hearsay evidence in Parole Revocation Hearings and Revocation

7 Extension Hearings shall be limited by the Juvenile Parolee's confrontation rights in the

8 manner set forth in controlling legal authority. The Policies and Procedures developed

9 pursuant to this Injunction shall include guidelines and standards that comport with

10 controlling legal authority.

11

38. In the event that the hearing officer/decision-maker decides to revoke

12 parole, but imposes an amount of revocation time that is less than the amount of time the

13 Juvenile Parolee has been detained, the Parolee shall be released as soon as practically 14 possible, but no later than 3 business Days after the hearing. If the hearing officer/

15 decision-maker decides to continue the Parolee on parole, the Juvenile Parolee shall be

16 released as soon as practically possible, but no later than 3 business Days after the 17 hearing.

18

39. Defendants shall no longer impose Temporary Detentions and shall

19 immediately rescind Title 15, California Code of Regulations § 4985.

20

40. At a Probable Cause Hearing, a written statement shall be made by the fact

21 finders as to the evidence relied upon to find that probable cause exists for any and/or all

22 of the charges against parolee. At every Parole Revocation Hearing and Revocation

23 Extension Hearing, the Juvenile Parolee shall receive a written decision at the conclusion 24 of the hearing.

25

41. At every Parole Revocation Proceeding, the Juvenile Parolee shall be

26 informed of the right to receive an audible copy of the audio recording of the hearing.

27 Defendants shall take necessary steps to ensure that such proceedings are appropriately 28 recorded, and shall maintain and replace recording equipment as necessary. Probable

12

[215682-1]

STIPULATED ORDER FOR PERMANENT INJUNCTIVE RELIEF

1 Cause Hearings may not be recorded.

2

42. Within 10 business Days of the receipt of a written request, which can be

3 made at the hearing, the Juvenile Parolee shall be provided an audible copy of the

4 recording of the Parole Revocation Hearing. If the Juvenile Parolee is appealing the result

5 of the Parole Revocation Hearing and the audio recording is inaudible, he shall be entitled

6 to a new hearing. This hearing shall take place as soon as practically possible.

7

43. Defendants shall promulgate Policies, Procedures, and Regulations that

8 clarify the appeals process applicable to Revocation Proceedings covered by this

9 Injunction, including the applicability of or modifications to procedures currently set forth

10 in Title 15, California Code of Regulations, sections 4935 through 4940. The appeals

11 process Defendants promulgate must include, at a minimum, the following elements: 12 1) The Juvenile Parolee must be informed at the hearing of his/her right to appeal the 13 parole revocation decision; 2) there will be only one level of appeal; 3) the Juvenile 14 Parolee must file his/her appeal with the Executive Officer of the Juvenile Parole Board

15 within 20 business Days of receipt of the written hearing decision; 4) the appeal will be

16 decided by the Executive Officer of the Juvenile Parole Board or his or her designee 17 within 10 business Days of receipt of the appeal, and served on the Juvenile Parolee 18 within five business Days of the appeal decision; 5) the Executive Officer or his designee 19 has discretion to immediately reverse a decision and grant appropriate relief, including 20 release, discharge, or continuation on parole; 6) if the Executive Officer or his designee 21 decides to grant a new hearing, that hearing must be held within 10 business Days of the

22 issuance of the appeal decision; 7) Juvenile Parolees have the right to assistance by 23 counsel in preparing an administrative appeal and at any new hearing granted pursuant to 24 an appeal; and 8) Juvenile Parolees with effective communication needs and/or

25 Disabilities have the right to reasonable accommodations throughout every step of the

26 administrative appeals process.

27

44. The parties incorporate by reference the Parole Revocation Flowchart,

28 attached to this Injunction as Exhibit A. The flowchart does not create any rights beyond

13

[215682-1]

STIPULATED ORDER FOR PERMANENT INJUNCTIVE RELIEF

1 those expressly set forth in ¶¶ 1 to 57.

2

45. Defendants shall promulgate Policies and Procedures that address the

3 circumstances under which a parole agent determines that a Juvenile Parolee has

4 committed an act that constitutes a violation of parole, but has also determined that the

5 Parolee does not need to be placed in custody. For these "not in custody" cases,

6 Defendants' Policies and Procedures shall ensure that Juvenile Parolees nonetheless

7 receive due process and ADA protections during the Revocation Process, consistent with

8 this Injunction, including but not limited to the appointment of counsel and a timely 9 revocation hearing, to be held no later than 60 Days after service of the Notice of

10 Violation or similar document commencing the Revocation Process. Defendants shall 11 also develop policies and procedures to address dual commitments, where a parolee is 12 held on a parole hold and on other charges, such as a criminal or juvenile proceeding 13 concerning new charges, or on adult parole violation charges.

14

46. Defendants shall not use any blanket policy of requiring mechanical

15 restraints for all juvenile parolees in parole revocation hearings. Defendants shall develop

16 policies, procedures and training conceming the use of mechanical restraints which are

17 consistent with the Americans with Disabilities Act and the Rehabilitation Act, the due

18 process clause and Title 15 California Code of Regulations section 4034.4.

19 VI. EFFECTIVE COMMUNICATION AND ADA REQUIREMENTS

20

47. Within 90 days of the signing of this Stipulated Injunction, Defendants shall

21 have fully implemented the steps outlined in ¶¶ 48 to 57 below to comply with due

22 process, Title II of the ADA, and the Rehabilitation Act.

23

A. Identification and Accommodation

24

48. Defendants shall provide timely and reasonable accommodations for

25 effective communication to Juvenile Parolees at all Revocation Proceedings. Defendants 26 shall ensure that Juvenile Parolees with limited English skills, effective communication 27 needs, and/or Disabilities are provided with accommodations needed to communicate 28 effectively, including but not limited to language interpreters, sign language interpreters,

[215682-1]

14
STIPULATED ORDER FOR PERMANENT INJUNCTIVE RELIEF

1 assistive listening devices, simplified forms, large print forms, forms translated to 2 Spanish, Braille, and Galileo readers.

3

49. Defendants shall make accommodations for Juvenile Parolees with

4 Disabilities and effective communication needs in order to assist them in preparing for 5 Revocation Proceedings. Such accommodation shall include up to three additional hours 6 of representation by appointed counsel.

7

50. The Juvenile Parolee's request for a particular type of accommodation shall

8 be given primary consideration and shall be granted unless the request is unreasonable for

9 specific articulated reasons allowable under Title II of the ADA.

10

51. Defendants shall implement appropriate Policies and Procedures to ensure

11 that no Revocation Proceedings are delayed or postponed in order to provide

12 accommodations and access to Juvenile Parolees with Disabilities or effective

13 communication needs.

14

52. Prior to serving any notices upon a Juvenile Parolee and prior to all

15 Revocation Proceedings, Defendants shall take reasonable steps to identify and track

16 Juvenile Parolees with Disabilities or effective communication needs. Policies and
17 Procedures will be developed to ensure identification and tracking of Juvenile Parolees

18 with Disabilities or effective communication needs. Identification and tracking shall

19 include, but not be limited to:

20

a. Checking relevant computer systems and information to determine

21

whether the Defendants have previously identified the Juvenile

22

Parolee as having a Disability or effective communication need(s),

23

and promptly taking the appropriate steps to provide effective

24

communication and accommodations without delay.

25

b. Reviewing relevant and reasonably available information in the

26

Juvenile Parolee's field file.

27

B. Equipment

28

53. Defendants shall ensure that appropriate equipment is available to Juvenile

[215682-1]

15
STIPULATED ORDER FOR PERMANENT INJUNCTIVE RELIEF

1 Parolees who need such equipment to communicate effectively at Parole Proceedings. 2 Such equipment shall include, but not be limited to, assistive listening devices and 3 magnification devices.

4

C. Grievances

5

54. Defendants shall develop and implement a prompt and effective grievance

6 procedure for processing any complaints of denials of requests for accommodations

7 separate from the appeal procedure described above in ¶ 43. All grievances requesting

8 reasonable accommodations at a scheduled hearing shall be decided as soon as possible 9 before the hearing, and the hearing shall not be delayed as a result unless Defendants can 10 show there is good cause. All other ADA-related or effective communication grievances

11 shall be decided within 15 Days of Defendants' receipt of the grievance form.

12 VII. FORIVIS

13

55. Defendants will ensure that all BPH, DJJ, JPB and CDCR forms provided to

14 Juvenile Parolees shall be reviewed for accuracy and simplified to a sixth grade reading

15 level. All forms will also be translated into Spanish. All forms provided to Juvenile

16 Parolees shall be readily available in alternative formats, including, but not limited to,

17 large print, Braille and audio tape. Whenever Juvenile Parolees with effective

18 communication needs or disabilities are given forms that they cannot understand, they 19 shall be provided a reasonable accommodation to enable them to understand the forms to
20 the best of their abilities.

21 VIII. TRAINING AND STAFFING

22

56. All JPB Commissioners, JPB Deputy Commissioners, JPB hearing officers,

23 Board Coordinating Parole Agents, JPB Wards with Disabilities Program ("WDP")

24 coordinators, DJJ Parole Agents, DJJ correctional counselors, and other JPB and DJJ

25 personnel who have direct or supervisory responsibility for communicating with or 26 making decisions affecting Juvenile Parolees in connection with Revocation Proceedings

27 shall receive comprehensive annual training on the general requirements of Title II of the

28 ADA and effective communication needs, this Injunction's requirements, the due process

16

[215682-1]

STIPULATED ORDER FOR PERMANENT INJUNCTIVE RELIEF

1 rights of Juvenile Parolees, and the Policies and Procedures developed pursuant to this 2 Injunction. Such trainings shall be tailored to the job classification(s) and responsibilities

3 of the staff present at the training sessions. All training required by this Injunction shall

4 occur within 180 days of the parties signing this agreement, and shall be repeated at a 5 minimum annually.

6

57. Defendants shall develop an appropriate compliance and self-monitoring

7 team to ensure compliance with the terms of this Injunction, and compliance with the

8 Policies and Procedures developed pursuant to this Injunction.

9 IX. ENFORCEMENT

10

58. The Court shall retain jurisdiction to enforce the terms of this Injunction.

11 The Court shall have the power to enforce the terms of this Injunction through specific 12 performance and all other remedies permitted by law or equity.

13

59. If Plaintiffs' counsel have reason to believe that Defendants are not

14 complying with any part of this Injunction, or Policies and Procedures issued pursuant to

15 it, they shall notify Defendants in writing of the facts supporting their belief. The parties

16 shall attempt to resolve the issues informally. If the issue is not resolved informally,

17 Plaintiffs' counsel may move the Court for any relief permitted by law or equity.

18 X. ATTORNEY'S FEES AND COSTS

19

60. Plaintiffs are the prevailing party on all issues covered by this Injunction.

20 Plaintiffs' counsel may move for an award of reasonable attorney's fees, litigation

21 expenses, and costs for obtaining relief for the Plaintiff class pursuant to 42 U.S.C.

22 § 1988, the ADA, the Rehabilitation Act, or any other applicable law.

23

61. Plaintiffs' counsel are also entitled to seek reasonable attorneys' fees,

24 litigation expenses, and costs for post-judgment work performed in conjunction with this

25 Injunction.

26

27

28

[215682-1]

17
STIPULATED ORDER FOR PERMANENT INJUNCTIVE RELIEF

1 IT IS SO STIPULATED.
Z•_, 2 Dated: June 2008
3
4
5

ROS?A••ALVA•N,A•LL•P
By: •Vbn./•,•-I
MICHAEL W. BIEN

6

BINGHAM McCUTCHEN LLP

7

8

GEOFF• I-tOL•'Z

9

10

YOUTH LAW CENTER

11

12

SUSAN L. BURRELL

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

[211590-1]

18
STIPULATED ORDER FOR PERMANENT INJUNCTIVE RELIEF

1
Dated: June ,2008
2
3
4
5

EDMUND G. BROWN JR, Attorney General of the State of California, DAVID S. CHANEY, Chief Assistant Attorney General, FRANCES T. GRUNDER, Senior Assistant Attorney General, ROCHELLE C. EAST, Supervising Deputy Attorney General

6

By:

7

WILLIAM KWONG

Deputy Attorney General

8

Attorneys for Defendants

9
10 Dated: June __.,2008
11

By: MATTHEW L. CATE, Secretary, California Department of Corrections

12
13 Dated: June ,2008
14 15

By:
BERNARD WARNER
Chief Deputy Secretary, California Department of Corrections

16
Dated: June ,2008
17
18

By: CHUCK SUPPLE, Executive Officer,
Juvenile Parole Board

19
Dated: June ,2008
20
21

By:
CAROLINA GARCIA, Director of
Juvenile Parole

22
Dated: June ,2008
23
24

By: JOYCE ARREDONDO, Board Representative of the Juvenile Parole
Board

25

26

27

28

{215682-1]

19
STIPULATED ORDER FOR PERMANENT INJUNCTIVE RELIEF

1

ORDER

2

The Court, having reviewed the above Stipulation of the parties, and good cause

3 appearing, hereby orders that Defendants, their agents, employees, and successors in

4 office shall comply with all the terms stated above.

5

IT IS SO ORDERED.

6

7 Dated: 8

,2008
LAWRENCE K. KARLTON
Chief Judge, Emeritus

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

[215682-1]

20
STIPULATED ORDER FOR PERMANENT INJUNCTIVE RELIEF

 
 EMBARGOED UNTIL 11 A.M., June 4, 2008

CONTACT: Michael Bien or Gay Crosthwait Grunfeld Rosen, Bien & Galvan, LLP - 415-433-6830
Sue Burrell Youth Law Center - 415-543-3379 x3911
Geoffrey Holtz Bingham McCutchen, LLP - 415-393-2000

Settlement Announced by Division of Juvenile Justice and Juvenile Parolees in Lawsuit over Lack of Due Process in Parole Proceedings
California DJJ Agrees to Sweeping Overhaul of Parole System to Comply with Constitution.

(San Francisco, CA – June 4, 2008) – Juvenile parolees today reached an agreement with the California Division of Juvenile Justice (DJJ) and related entities, in a lawsuit alleging widespread violation of youths’ constitutional rights. In California, those convicted as youths remain under the jurisdiction of the DJJ until age 25. The class-action case, L.H. v. Schwarzenegger, was filed in September 2006 in federal district court in Sacramento, by attorneys from the law firms of Rosen, Bien & Galvan, LLP and Bingham McCutchen, LLP, and the non-profit Youth Law Center.
“We are pleased that the State has agreed to reform their juvenile parole system to meet the same standards for adults on parole,” said Gay Crosthwait Grunfeld, of Rosen, Bien & Galvan, and an attorney for the juvenile parolees. “This settlement agreement is far-reaching and will allow juvenile parolees to have a transparent process for revocation with clear rules and rights. We look forward to working with DJJ to implement a fair and constitutional parole system.”
The L.H. suit had charged that lengthy parole holds are routinely imposed without proper or timely notice to the juveniles of the reasons for the detention. Juvenile parolees were not informed of the precise charges against them until they had been in custody for weeks or months, and often the charges would change late in the process. The suit charged that in the vast majority of revocations, DJJ denied juveniles the right to have witnesses testify on their behalf, to present evidence to defend or mitigate the charges, or to have an attorney. The suit also charged that DJJ failed to provide accommodations mandated under federal law for those youths suffering from mental or physical disabilities.
Elements of the settlement agreement include:
• Attorneys will be appointed for every juvenile parolee who has been charged with a violation of parole within 8 business days of the parole hold.
• Juveniles will receive a preliminary probable cause hearing within 13 business days of the parole hold.
• If there is probable cause to hold the youth, the juveniles will receive a full revocation hearing within 35 calendar days of the parole hold.
• Juveniles will have the right to present evidence and witnesses at their probable cause and revocation hearings.
• Clear policies will be developed that spell out which behavior warrants revocation of parole or a return to a DJJ facility.

-more-

-continued-
• Youth who are not revoked will be released promptly and DJJ will end a policy of “temporary detention” for youth continued on parole.
• Juveniles cannot be returned to DJJ for more than a year, and a revocation cannot be extended beyond a year, except for cases of serious in-custody misconduct.
• Accommodations for mental and physical disabilities and for effective communications, including language translation for non-English speakers, will be provided at all stages of the parole revocation process.
• Youth will no longer be automatically shackled during revocation proceedings and policies will be developed to govern when and how a youth is restrained.
• A prompt administrative appeal system that includes the appointment of attorneys.
The settlement also comes after federal Judge Lawrence Karlton ruled in January 2008 that DJJ was violating juvenile parolees’ due process rights in parole hearings, and ordered that attorneys be appointed to represent “each and every” DJJ parolee in revocation proceedings. Judge Karlton also ruled that DJJ was violating federal disability laws by not providing interpreters and other accommodations to assure that youth can understand and participate in parole revocation hearings.
“We believe that this agreement will end up saving the state money, as juveniles will no longer spend months on end in DJJ facilities awaiting hearings,” said Geoffrey Holtz, a partner at Bingham McCutchen, and one of the attorneys for the plaintiffs. “Because of DJJ’s failure to hold hearings in a timely manner, youth were warehoused at facilities for months before they received a hearing, even for technical violations of parole such as drinking alcohol or traffic violations, which often were determined not to warrant imprisonment at all.”
“Judge Karlton’s decisions were historic,” said Sue Burrell, Staff Attorney at the Youth Law Center. “It was the first time that a federal court has ruled that the same constitutional rights and protections that apply to adults in parole proceedings also extend to juveniles. The rulings made it clear that it was time for DJJ to stop fighting the lawsuit and to focus on reform.”
The settlement of the federal class action will be presented by the parties to Judge Karlton for his preliminary approval and then will be subject to a public notice and hearing, pending final approval. Judge Karlton previously appointed a Special Master, Chase Riveland, to work with the parties and assist the Court.
“The settlement is a benefit to all Californians,” said Michael Bien, Managing Partner of Rosen, Bien & Galvan. “Our clients, who will be provided with attorneys and with rights to a fair and just hearing, will gain respect for the legal process. In addition, the settlement will result in shorter, less expensive incarcerations and increased access to community programs that are proven to reduce recidivism and improve public safety.”
The plaintiff youths are represented by attorneys from the San Francisco law firms of Rosen, Bien & Galvan, LLP and Bingham McCutchen, LLP; and the non-profit Youth Law Center. A copy of the settlement agreement will be available at www.ylc.org.
-#-
- 2 -