Case3:12-cv-06495-JCS Document1 Filed12/2..1/1j2 Page1 of 19
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1 Christopher Martin (SBN 141469) Nationally Board Certified Criminal Trial Advocate
2 1160 Brickyard Cove Rd., Ste. 200 Pt. Richmond, CA. 94801
3 Telephone: (510) 439-4141 Facsimile: (510) 439-4150
4 email: chris@martindefenders.com

5 Michael Dietrick (SBN 92150) Attorney at Law
6 10 Keller St., Ste. 275 Petaluma, CA. 94952
7 Telephone: (707) 763-5019 Facsimile: (707) 763-5022
8 email: dietrick@pacbelLnet

9 Attorneys for Plaintiffs John Farrow, Jerome Wade,
10 And all others similarly situated

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IN THE UNITED STATES DISTRICT COURT

13 FOR THE NORTHERN DISTRICT OF CALIFORNIA
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15 John Farrow, Jerome Wade, on their behalf, and on
16 behalf of all others similarly situated,

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Plaintiffs,

18 vs.

C12- Case No. TBD

6495

JCs CLASS ACTION COMPLAINT

DEMAND FOR JURY TRIAL

19 Contra Costa County Public Defender Robin Lipetzky, in her official capacity, and DOES 1
20 through 20, et aI.,

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Defendants.

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CLASS ACTION COMPLAINT

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Plaintiffs hereby allege as follows:

2 INTRODUCTION

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1. Indigent, in-custody defendants in Contra Costa County are customarily left in jail without

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counsel, after their first court appearance, for 5 to 13 days.1

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2. Although the first court appearance is dubbed "arraignment," no plea is taken, bail is not

7 examined, and counsel is not appointed, as required by California law.
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3. The Public Defender withholds counsel to detainees as a matter of written policy.2 9

10 4. Pursuant to this written policy, an in-custody, indigent criminal defendant's request for

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court-appointed counsel triggers a "referral to the Public Defender" and an automatic

12 continuance for "further arraignment."

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5. The automatic continuance is imposed regardless of whether a juvenile is charged as an

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adult, whether it is a misdemeanor or felony complaint, whether the defendant suffers

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from a developmental disability or other infirmity, whether evidence of misidentification

17 requires immediate investigation, or other exigent circumstances.
18 6. Although the automatic continuance is customarily between 5 and 13 days - depending
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upon where the case was filed within the county - defendants are never informed of their

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statutory speedy trial rights prior to the imposition of this automatic continuance.

22 7. California's statutory speedy trial scheme adamantly states that both the criminal

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defendant and the People are entitled to preliminary hearing and trial at the earliest

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I Defendant reserves the right to extend this period, with regard to all particulars of this complaint, if discovery demonstrates that the period is sometimes even longer.

27 2 A copy of policy as shown on the Contra Costa Public Defender's website is attached hereto and made
a part hereof as if set forth verbatim as Exhibit A.
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Case3:12-cv-06495-JCS Document1 Filed12/21/12 Page3 of 19
possible time. California's statutory speedy trial time limits, however, are only engaged once a defendant has entered his plea. Therefore, given that the Court does not ask for a plea until counsel arrives, plaintiffs' statutory speedy trial rights are suspended till the Public Defender deigns to come to Court. 8. Under California law there is no remedy, in the criminal context, for flouting California's statutory speedy trial scheme in this manner. California Civil Code section 52.1, however, provides plaintiffs with a remedy for the Public Defender's forcible interference with their statutory rights. 9. The Public Defender's policy also denies indigent defendants their federal and state rights to the assistance of counsel at their first appearance in court, or a reasonable time thereafter. 10. This policy further effectively denies these defendants their right to apply for bail in the 5 to 13 day period of the Public Defender'S absence. 11. Additionally, this policy forces in-custody, misdemeanor defendants to give up their statutory right to an immediate probable cause hearing. 12. Plaintiffs in this action are all clients of the Contra Costa County Public Defender, the Contra Costa County Alternative Public Defender's Office, and private conflicts-counsel, who are, have, or will languish in jail due to the Public Defender's policy of deliberate indifference. 13. Plaintiffs seek nominal damages, statutory damages, and punitive damages for the criminal defendants affected by the Public Defender's policy of deliberate indifference to the constitutional and statutory rights of the vary people she is obligated to defend.
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CLASS ACTION COMPLAINT

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14. Plaintiffs also seek injunctive relief, requiring the Public Defender to appear at arraignment, in compliance with California Government Code section 27706, which states that the Public Defender "shall" represent defendants at "all stages of the proceedings."
IS. Plaintiffs further seek declaratory relief, declaring the Public Defender's policy of nonrepresentation illegal.
16. Plaintiffs reserve the right to file individual claims for compensatory damages, where injuries other than the deprivation of constitutional rights, can be shown. JURISDICTION AND VENUE
17. This Court has jurisdiction ofthis action pursuant to 28 U.S.C. § 1343(3) for claims brought under 42 U.S.C. § 1983, and pursuant to 28 U.S.C. §1331 generally.
18. Venue is proper pursuant to 28 U.S.C. Section 1391(b). 19. This is an action for declaratory and injunctive reliefpursuant to 28 U.S.C. Sections 2201
and 2202 and the equitable and inherent powers of this Court. 20. Under 28 U.S.C. § 1367(a) the Court has supplemental jurisdiction over the state claims
alleged herein. 21. The amount in controversy is over $25,000.00 (Twenty-five thousand dollars). 22. Plaintiffs seek a temporary restraining order compelling the Public Defender, or a
designee, to appear in court and represent all current and future clients from the time of their first appearance in court or a reasonable time thereafter. Plaintiffs further seek preliminary and permanent injunctive relief compelling the Public Defender, or a designee, to appear in court and represent all current and future clients from the time of their first appearance in court or a reasonable time thereafter. Plaintiffs further seek
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CLASS ACTION COMPLAINT

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Case3:12-cv-06495-JCS Document1 Filed12/21/12 Page5 of 19
declaratory relief declaring the Public Defender in violation of her constitutional duties, and her legislative mandate pursuant to California Government Code section 27706. 23. This case arises under the Sixth, Eighth and Fourteenth Amendments to the United States Constitution, 42 U.S.C. section 1983, Article I, sections 12 and 13 of the California Constitution, California Code of Civil Procedure sections 1085 and1086, California Government Code section 27706, California Civil Code section 52.1 (b), and all California Penal Code sections pertaining to arraignment, appointment of counsel, and speedy trial rights.
PARTIES 24. Defendant Robin Lipetzky is the duly appointed public defender of Contra Costa County.
She is vested by law with the responsibility of representing all indigent defendants at all stages of criminal proceedings pursuant to California Government Code section 27706. Defendant Lipetzky at all times acted in the course and scope of her employment and under color of law. She is sued in her official capacity. 25. Plaintiffs John Farrow, Jerome Wade, and all those similarly situated, are, and at all material times herein, were citizen of the United States and residents ofthe state of California who were indigent criminal defendants, arraigned, in custody, and without counsel, in Contra Costa County within the two (2) years before the filing of this Complaint. All asked for court-appointed counsel at arraignment; none waived their speedy trial rights; all remained in custody without counsel for 5 to 13 days after their first Court appearance; and, none can show actual prejudice of any sort other than the
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deprivation oftheir rights under the United States Constitution, the California Constitution, and the laws of the state of California.
STATEMENT OF FACTS 26. This action satisfies all of the requirements of Rule 23(a), (b)(l) and (2) of the Federal

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Rules of Civil Procedure. 27. Within six (6) months John Farrow, plaintiff, filed a group Government Tort Claim for
himself and for all persons similarly situated. Plaintiffs group claim was denied on or about July 24, 2012, allowing the filing ofthis class action complaint on state statute and constitutional violations. 28. Within six (6) months Jerome Wade, plaintiff, filed a group Government Tort Claim for himself and for all persons similarly situated. Plaintiffs group claim was denied on or about October 17, 2012.3 29. Mr. Farrow was arrested on August 30, 2012. 30. Mr. Farrow appeared alone in Court for his arraignment on September 2,2012. 31. The Court asked him ifhe could afford counsel, and he replied that he could not. The Court then asked ifhe wanted the court to appoint counsel, and Mr. Farrow said that he

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did. The court then "referred the matter to the Public Defender," and continued the matter

22 to September 15 for "further arraignment," without advising Mr. Farrow of his right to
23 bail, or his right to a speedy preliminary hearing and trial. Mr. Farrow languished in jail,
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3 Plaintiff Wade's claim was denied on timeliness grounds. He has, however, submitted a request for relief with the agency, which the agency must grant pursuant to California Government Code section

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911.2 because Mr. Wade was a minor for the entire six month period following the violations complained
of herein.

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without examination of bail or the protection of statutory speedy trial rights or legal

2 representation, for the next 13 days.
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32. At the "further arraignment," on September 15, 16 days after his arrest, and 13 days after
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his first appearance in Court, counsel was appointed pursuant to the Public Defender's

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policy, and Mr. Farrow was permitted to enter a plea.

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33. Mr. Wade, who was 17 years old, was arrested at his high school on November 8,2012. 8
34. Mr. Wade appeared in Court alone for his arraignment on November 14, 2011. 9

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35. The Court asked him ifhe could afford counsel, and he replied that he could not. The

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Court then asked ifhe wanted the court to appoint counsel, and Mr. Wade said that he did.

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The court then "referred the matter to the Public Defender," and continued the matter to

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November 21 for "further arraignment," without advising Mr. Wade of his right to bail, or 14

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his right to a speedy preliminary hearing and trial. Mr. Wade languished in jail, without

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examination ofbail or the protection of statutory speedy trial rights or legal

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representation, for the next 7 days.

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36.At the "further arraignment," on November 21,2011, 13 days after his arrest, and 7 days
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after his first appearance in Court, as a juvenile charged as an adult, counsel was

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appointed, and Mr. Wade was permitted to enter a plea.

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CLASS CLAIMS

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37. The deprivation of counsel that plaintiffs were subjected to, along with all those similarly
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situated, and the inevitable denial of statutory speedy trial rights and bail rights ensuing

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from the Public Defender's deliberate indifference, were performed pursuant to policies,

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practices, and customs of defendant Contra Costa County Public Defender, Robin

2 Lipetzky, acting under color of law.
3 38. Plaintiffs bring this action on their own behalf, and on behalf of all persons similarly
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situated, pursuant to Rule 23, Federal Rules of Civil Procedure.

6 39. The class is defined to include all persons who, in the period from and including two (2)

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years prior to the filing of this Complaint, and continuing until this matter is adjudicated 8
and the practices complained herein cease, were subjected to the deprivation of counsel at 9

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their first court appearance and were forced to continue their cases for 5 days or more for

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appointment of counsel, pursuant to the Public Defender's written policy.

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40. In accordance with Federal Rules of Civil Procedure, Rule 23(a), the members of the class

13 are so numerous that joinder of all members is impractical. Plaintiffs do not know the
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exact number of class members but plaintiffs are informed and believe, and thereupon

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allege, that the number of individually named plaintiffs together with CLASS MEMBERS

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exceeds 1000.

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41. In accordance with Federal Rules of Civil Procedure, Rule 23(a), plaintiffs are informed
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and believe, and thereupon allege, that there are many questions of fact common to the

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class including, but not limited to whether:

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(1) All plaintiffs were indigent, in-custody criminal defendants in Contra Costa

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County; 24

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(2) All plaintiffs asked for appointment of the Public Defender;

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(3) All plaintiffs suffered an automatic continuance of between 5 and 13 days as

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a direct consequence of asserting their right to appointed counsel;

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(4) All were forced to continue their cases without any knowledge of their bail

2 rights or statutory speedy trial rights.
3 (5) All plaintiffs were deprived of counsel for a period of between 5 and 13
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days;

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(6) All plaintiffs were deprived oftheir statutory speedy trial rights and their

7 right to a prompt bail hearing for the 5 to 13 day period without counsel;
8 (7) All plaintiffs were deprived of said rights due to the written policy of the
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Public Defender.

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(8) The Public Defender maintains records concerning the relevant facts with

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regard to each plaintiff.

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(9) The Public Defender knew that the actions alleged herein violated state and 14

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federal law when she committed said actions.

16 42.ln accordance with Federal Rules of Civil Procedure, Rule 23(a), plaintiffs are infonned

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and believe, and thereupon allege, that there are many questions of law common to the

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class including whether:
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(1) A forced 5 to 13 day delay between an indigent in-custody defendant's

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first appearance in court and representation by the Public Defender, or her

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proxy, is unreasonable under the 6th Amendment to the United States

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Constitution; 24

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(2) A forced 5 to 13 day delay between an indigent in custody defendant's

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first appearance in court and representation by the Public Defender, or her

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proxy, violates a defendant's federal and state rights to a prompt bail

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hearing;

2 (3) A forced 5 to 13 day delay between an indigent in custody defendant's
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proxy, violates a defendant's statutory speedy trial rights;

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(4) A forced 5 to 13 day delay between an indigent in custody defendant's

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first appearance in court and representation by the Public Defender, or her

8 proxy, violates California's Bane Civil Rights Act (Civil Code §§ 52 and
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52.1.).

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(5) Whether California Government Code section 27706, which states that the

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Public Defender shall represent indigent defendants at all stages of the

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proceedings, contemplates representation at the first half of Contra Costa
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County's bifurcated arraignment proceedings.

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43. Plaintiffs are informed and believe, and thereupon allege, that most members of the class
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will not be able to find counsel to represent them. Plaintiffs are informed and believe, and

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thereupon allege, that it is desirable to concentrate all litigation in one forum because all

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of the claims arise in the same location; Le., Contra Costa County. It will promote

21 efficiency to resolve the common questions of law and fact in one forum, rather than in
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multiple courts.

24 44. Plaintiffs do not know the identities of all the class members. Plaintiffs are informed and

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believe, and thereupon allege, that the identities of the class members may be ascertained

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informed and believe, and thereupon allege, that defendant's records reflect the identities,

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including addresses and telephone numbers, of the defendants whose rights have been transgressed as the result of the Public Defender's policy of deliberate indifference. Plaintiffs are infonned and believe, and thereupon allege, that the Contra Costa County Public Defender maintains records ofwhen each defendant initially appeared in Court and the duration of his incarceration without counsel. Plaintiffs are infonned and believe, and thereupon allege, that all of the foregoing infonnation is contained in defendant's computer system and that the infonnation necessary to identify the class members, by last known addresses, and the dates of their respective initial appearance and appointment of counsel is readily available from said computer system. 45. In accordance with Federal Rules of Civil Procedure, Rule 23(b)(3), class members must be furnished with the best notice practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort. Plaintiffs are infonned and believe, and thereupon allege, that defendant's computer records contain a last known address for class members. Plaintiffs contemplate that individual notice will be given to class members at such last known address by first class mail. Plaintiffs contemplate that notice will infonn class members ofthe following:
l. The pendency ofthe class action and the issues common to the cl?ss; 11. The nature of the class action; 111. The right to '''opt out" of the action within a given time, in which event they
will not be bound by a decision rendered in the class action;
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iv. Their right, if they do "opt out," to be represented by their own counsel and

2 to enter an appearance in the case; otherwise they will be represented by the
3 named class plaintiff(s) and the named class plaintiff(s)'s counsel; and
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v. Their right, if they do not "opt out," to share in any recovery in favor of the

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class, and conversely to be bound by any judgment on the common issues

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adverse to the class.

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COUNT ONE
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(Violation of Sixth Amendment to the U.S. Constitution 42 U.S.C. § 1983)

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46. Plaintiffs reallege and incorporate herein, as if stated in full, each and every of the

12 allegations contained in paragraphs 1 through 45, inclusive.
13 47. Defendant's policies, practices, and customs regarding the failure to represent plaintiffs at
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their first appearance, or a reasonable time thereafter, violated the rights of plaintiffs, and

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all those similarly situated, under color of law, pursuant the Sixth Amendment right to the

17 assistance of court-appointed counsel, and directly and proximately damaged plaintiffs,
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and all those similarly situated, as herein alleged, entitling plaintiffs, and all class 19

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members, to recover damages for said constitutional violations pursuant to 42 U.S.C. §

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1983.

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WHEREFORE, plaintiffs pray for relief, for themselves and for all persons

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similarly situated, as hereunder appears.
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COUNT TWO

(Violation of the 14th Amendment to the U.S. Constitution - substantive due process with respect to statutory speedy trial rights)

49. Plaintiffs reallege and incorporate herein, as if stated in full, each and every of the

allegations contained in paragraphs 1 through 48. inclusive.

50. Defendant's policies, practices, and customs regarding the failure to represent plaintiffs,

and all those similarly situated, at their first appearance, or a reasonable time thereafter,

violated the rights of plaintiffs, under color oflaw, pursuant to the 14th Amendment due

process clause in that the defendant's deliberate indifference resulted in the denial of

statutory speedy trial rights, without a hearing to determine the cause and reasonableness

of the denial, and directly and proximately damaged plaintiffs, and all those similarly

situated, as herein alleged, entitling plaintiffs, and all class members, to recover damages

for said constitutional violations pursuant to 42 U.S.C. § 1983.

51.

WHEREFORE, plaintiffs pray for relief, for themselves and for all persons

similarly situated, as hereunder appears.

COUNT THREE

(Violation of the 14th Amendment to the U.S. Constitution on behalf of Plaintiffs and all persons similarly situated - procedural due process
with respect to statutory speedy trial rights)

52. Plaintiffs reallege and incorporate herein. as if stated in full, each and every of the

allegations contained in paragraphs 1 through 51, inclusive.

53. Defendant's policies, practices, and customs regarding the failure to represent plaintiffs,

and all those similarly situated, at their first appearance, or a reasonable time thereafter,

violated the rights ofplaintiffs, under color of law, pursuant to the 14th Amendment due
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process clause in that the defendant's deliberate indifference resulted in the denial of statutory speedy trial rights, without a hearing to determine the cause and reasonableness of the denial, and directly and proximately damaged plaintiffs, and all those similarly situated, as herein alleged, entitling plaintiffs, and all class members, to recover damages for said constitutional violations pursuant to 42 U.S.C. § 1983. 54. WHEREFORE, plaintiffs pray for relief, for themselves and for all persons similarly situated, as hereunder appears.
COUNT FOUR
(Violation of the 14th Amendment to the U.S. Constitution on behalf of Plaintiffs and all persons similarly situated -procedural due process
with respect to application for bail or release on own recognizance)

55. Plaintiffs reallege and incorporate herein, as if stated in full, each and every of the

allegations contained in paragraphs 1 through 54, inclusive.

56. Defendant's policies, practices, and customs regarding the failure to represent plaintiffs at

their first appearance, or a reasonable time thereafter, violated the procedural due process

rights of plaintiffs, and all those similarly situated, under color oflaw, pursuant to the 14th

Amendment due process clause in that the deliberate indifference of defendant directly

denied plaintiffs' right to a prompt bail hearing, and directly and proximately damaged

plaintiffs, and all those similarly situated, as herein alleged, entitling plaintiffs, and all

class members, to recover damages for said constitutional violations pursuant to 42 U.S.C.

§ 1983.

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WHEREFORE, plaintiffs pray for relief, for themselves and for all persons

similarly situated, as hereunder appears.

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COUNT FIVE

(California State Civil Rights Act, Civil Code §§ 52 and 52.1, on behalf of plaintiffs and all persons similarly situated denial of statutory speedy trial rights)

58. Plaintiffs reallege and incorporate herein, as if stated in full, each and every of the

allegations contained in paragraphs 1 through 57, inclusive.

59. Defendant's policies, practices, and customs regarding failure to represent plaintiffs at

their first court appearance, or within a reasonable time thereafter, complained herein

violated the rights ofplaintiffs, and all those similarly situated, by forcing plaintiffs to

sacrifice their statutory speedy trial rights as a precondition to appointment of counsel,

and directly and proximately damaged plaintiffs, and each of those similarly situated, as

herein alleged, entitling said plaintiffs, and each of those they represent, to recover a

minimum of $4000.00 each pursuant to California Civil Code § 52.1 and § 52, in addition

to other damages.

60.

WHEREFORE, plaintiffs pray for relief, for themselves and for all persons

similarly situated, as hereunder appears.

COUNT SIX (California Code of Civil Procedure §§ 1085 and 1086 - writ of mandate to enforce California
Government Code § 27706) 61. Plaintiffs reallege and incorporate herein, as if stated in full, each and every of the

allegations contained in paragraphs 1 through 60, inclusive.

62. Defendant's policies, practices and customs violate California Government Code § 27706,

which states that the public defender shall represent criminal defendants at all stages of

the proceedings. Plaintiffs are directly damaged as the result of said policies, practices

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and customs, and request a writ of mandate, compelling the Public Defender to comply

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with her statutory obligation to represent all indigent, in custody defendants by appearing
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at the first appearance of all indigent, in-custody criminal defendants, or at a reasonable 4

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time thereafter.

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63. WHEREFORE, plaintiffs pray for relief, for themselves and for all persons similarly

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situated, as hereunder appears.

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PRAYER FOR RELIEF
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WHEREFORE, plaintiffs, on behalf of themselves and all those similarly situated, seek

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1. For declaratory and injunctive relief declaring illegal and enjoining, preliminarily and

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permanently, defendant's policies, practices, and customs of unlawfully withholding

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representation from indigent, in-custody defendants from 5 to 13 days after their initial appearance. 2. Certification as a class action of plaintiffs' complaints concerning defendants' policies, practice, and customs of withholding representation from indigent, in-custody defendants from 5 to 13 days after their initial appearance. 3. For compensatory, general, and special damages for each representative and for each member of the class of plaintiffs, as against all defendants; 4. Exemplary damages as against each of the individual defendants in an amount sufficient

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to deter and to make an example ofthose defendants;

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5. In addition to compensatory damages as allowed by law, at least $4000 for each plaintiff 27

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pursuant to California Civil Code § 52.1 and § 52, for each violation thereof;

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1 6. Attomeys' fees and costs under 42 U.S.C. § 1988, California Civil Code § 52(b)(3),

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California Civil Code § 52.1(h), and California Code of Civil Procedure § 1021.5.

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7. The cost of this suit and such other relief as the court finds just and proper.
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A JURY TRIAL IS DEMANDED.

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12 Dated: (2 -;;u - ~ 01)..,..
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Christopher Martin Attorney at Law

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Michael Dietrick

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Attorney at Law

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BY:~k

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Christopher Martin

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Attorneys for Plaintiffs
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EXHIBIT A

Case3:12-cv-06495-JCS Document1 Filed12/21/12 Page19 of 19 SEAR(}1

Who We Represent How We Do It
Where We Do It InlUal Contllcts

Initial Contacts
At the first court appearance (arraignment) when given a copy of the chan;Jes-or whl!n questioned In polla! custody bo!fore arrest or chan;Jes ue brought-a person m~y request representatlon by an attomey. At the arraignment or first appearance, persons out of QJstody 1"111 be referred to our office and given a date to return to court with an attorney. Persons in custody will be given a court date and will be visited at the jal' by staff from the Department before the next court date. During the Initial dlent inte"'iew, a paralegal, law clerk or attorney will:

• determine finandal eligibility • discuS$ confidentially the dient's background • expla in the overall procedure • discuss the specifICs of the dient's case

The inte",'ewlng attorney and the attorney at the next court date will rarely be the
attorney who Is assigned to the case for logistical rea~ns, ~s well as because of the need to DrIng to bear spedalized knowledge of variOUS areas of law.

 
 1

2

3

UNITED STATES DISTRICT COURT

4

NORTHERN DISTRICT OF CALIFORNIA

5 JOHN FARROW, et al.,
6

7

Plaintiffs,

8

v.

Case No. 12-cv-06495-JCS
ORDER GRANTING DEFENDANT’S MOTION TO DISMISS THE COMPLAINT WITHOUT PREJUDICE

9 ROBIN LIPETZKY,

10

Defendant.

11 I. INTRODUCTION

United States District Court Northern District of California

12

Plaintiffs John Farrow (“Farrow”) and Jerome Wade (“Wade”) (collectively, “Plaintiffs”)

13 brought this putative class action against Defendant Robin Lipetzky, in her official capacity as the

14 Contra Costa County Public Defender (“Defendant”). Plaintiffs allege causes of action (1) under

15 42 U.S.C. § 1983 for (a) violation of the Sixth Amendment to the United States Constitution; and

16 (b) violations of the Fourteenth Amendment to the United States Constitution; (2) under the Unruh

17 Act for violation of their statutory speedy trial rights; and (3) for violation of California

18 Government Code § 27706. Presently before the Court is Defendant‟s Motion to Dismiss the

19 Complaint (“Motion”). The parties have consented to the jurisdiction of a magistrate judge

20 pursuant to 28 U.S.C. § 636(c). This Motion raises two related questions. First, does the failure to

21 provide counsel at an initial appearance (at which the only events that occur are the provision of a

22 copy of the charges to the defendant, the inquiry as to whether the defendant desires appointed

23 counsel, and the continuance of the matter to allow for appointment of counsel) violate the Sixth

24 Amendment guarantee of counsel in a criminal case? Second, where the matter is continued for 5

25 to 13 days, at which time counsel appears with the defendant, does the delay in appointment of

26 counsel violate the Sixth Amendment? Because the Court answers both questions in the negative,

27 the Motion is GRANTED and the Complaint is dismissed with leave to amend.

28 //

1 II. REQUEST FOR JUDICIAL NOTICE

2

The standard for judicial notice is set forth in Rule 201 of the Federal Rules of Evidence,

3 which allows a court to take judicial notice of an adjudicative fact not subject to “reasonable

4 dispute,” either because it is “generally known within the territorial jurisdiction of the trial court”

5 or it is “capable of accurate and ready determination by resort to sources whose accuracy cannot

6 reasonably be questioned.” Fed. R. Evid. 201. As a general rule, the court “may not consider any

7 material beyond the pleadings in ruling on a Rule 12(b)(6) motion.” U.S. v. Corinthian Colleges,

8 655 F.3d 984, 998-99 (9th Cir. 2011) (quoting Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th

9 Cir. 2001)). However, the court may “consider materials that are submitted with and attached to

10 the Complaint.” Id. at 999. The court “may also consider unattached evidence on which the

11 complaint „necessarily relies‟ if: (1) the complaint refers to the document; (2) the document is

United States District Court Northern District of California

12 central to plaintiff‟s claim; and (3) no party questions the authenticity of the document.” Id. at 999

13 (citing Marder v. Lopez, 450 F.3d 445, 448 (9th Cir. 2006)). In addition, the court may take

14 judicial notice of “matters of public record,” but not facts that may be “subject to reasonable

15 dispute.” Id. (citing Lee, 250 F.3d at 689).

16

Defendant seeks judicial notice of two facts on the basis of five public records.

17 Defendant‟s Request for Judicial Notice (“RJN”), 1-2; Corrected Declaration of D. Cameron

18 Baker in Support of Defendant‟s Motion to Dismiss (“Baker Declaration”), Exs. A-E. The five

19 public records are: (1) the “AB 109 Operations Plan for Contra Costa County as Approved and

20 Adopted by the Executive Committee of the Contra Costa County Community Corrections

21 Partnership Adopted November 9, 2012;” (2) a Position Adjustment Request from the official files

22 of the Contra Costa County Board of Supervisors for funding for two full-time Deputy Public

23 Defender Positions and one full-time Paralegal Position, signed with Board approval on January

24 15, 2013; (3) an order dated January 15, 2013 approving the “2012/13 AB 109 Criminal Justice

25 Realignment Implementation Plan” from the official records of the Contra Costa County Board of

26 Supervisors; (4) an affidavit, from the Contra Costa County Office of the Public Defender in the

27 matter entitled People v. Farrow, Contra Costa County Superior Court No. 01-15531-7, in which

28 Christopher Martin is appointed to represent John Howard Farrow; and (5) a minute order dated

2

1 November 21, 2011 from the Contra Costa Superior Court file entitled People v. Wade, Case No.

2 5-121217-4, stating that Jerome Edward Wade appeared with his attorney “Martin.” Baker

3 Declaration, ¶¶ 3-7, Exs. A-E. The two facts are: (1) Defendant now “has funding to have

4 attorneys present at the initial court appearance for criminal defendants;” and (2) that “Christopher

5 Martin, one of Plaintiffs‟ attorneys in this case, was counsel of record for both Plaintiffs in their

6 underlying criminal proceedings.” RJN, 1.

7

Plaintiffs oppose judicial notice. Plaintiffs‟ Opposition to Motion to Dismiss

8 (“Opposition”), 7-9. In particular, Plaintiffs contest whether the apparent acquisition of funding

9 for two additional public defender positions is sufficient to provide representation of indigent

10 defendants in misdemeanor and felony cases at three courthouses in Contra Costa County. Id. at

11 8. The Court takes judicial notice of the five documents as public records. The Court cannot take

United States District Court Northern District of California

12 judicial notice of the inference that Defendant now has adequate funding to have attorneys present

13 at the initial court appearance for all criminal defendants. Although the noticed documents

14 indicate that Defendant has obtained funding for two Deputy Public Defender positions and one

15 Paralegal position to “[p]rovide for early representation of arrestees at the first Court appearance,”

16 whether that funding is adequate is subject to reasonable dispute. As to whether Plaintiffs‟

17 counsel also represented them in their criminal proceedings, neither party has made any argument

18 relying on that asserted fact and the Court does not rely on it in resolving this Motion.

19 III. BACKGROUND

20

A. Complaint

21

Plaintiffs allege that indigent, in-custody criminal defendants in Contra Costa County are

22 customarily left in jail without counsel for 5 to 13 days after their first court appearance.

23 Complaint, ¶ 1. Plaintiffs allege that, in the first court appearance, which is “dubbed

24 „arraignment,‟” no plea is taken, bail is not examined, and counsel is not appointed. Id. at ¶ 2.

25 Plaintiffs allege that this is a result of Defendant‟s policy:

26

At the first court appearance (arraignment) when given a copy of the charges – or when

27

questioned in police custody before arrest or charges are brought – a person may request

28

representation by an attorney. At the arraignment or first appearance, persons out of

3

custody will be referred to our office and given a date to return to court with an attorney.

1

Persons in custody will be given a court date and will be visited at the jail by staff from the

2

Department before the next court date.

3 Id. at ¶ 3-4, Ex. A. Plaintiffs allege that referral to a public defender at the first court appearance

4 results in an automatic continuance, customarily between 5 and 13 days, for “further arraignment.”

5 Id. at ¶¶ 4, 6. Plaintiffs allege that this delays the activation of their state statutory speedy trial

6 rights, because those rights run from the entry of plea. Id. at ¶ 7.

7

Plaintiffs allege that Farrow was arrested on August 30, 2012. Id. at ¶ 29. Thereafter,

8 Farrow appeared alone in court for his arraignment on September 2, 2012. Id. at ¶ 30. The court

9 asked Farrow if he could afford counsel, and Farrow replied that he could not. Id. at ¶ 31. The

10 court asked Farrow if he wanted the court to appoint counsel, and Farrow said that he did. Id. The

11 court then referred the matter to the Public Defender and continued the matter to September 15,

12 2012 for “further arraignment” without advising Farrow of his right to bail or his right to a speedy

United States District Court Northern District of California

13 preliminary hearing and trial. Id. Farrow remained in jail without examination of bail, legal

14 representation, or statutory speedy trial rights until the “further arraignment,” at which counsel

15 was appointed and Farrow entered his plea. Id. at ¶¶ 31-32.

16

Plaintiffs allege that Wade was arrested on November 8, 2012.1 Id. at ¶ 33. Wade

17 appeared at court alone for his arraignment on November 14, 2011. Id. at ¶ 34. The court asked

18 Wade if he could afford counsel, and he replied that he could not. Id. at ¶ 35. The court asked

19 Wade if he wanted the court to appoint counsel, and Wade replied that he did. Id. The court

20 referred the matter to the Public Defender and continued the matter to November 21, 2011 for

21 “further arraignment” without advising Wade of his right to bail or his right to a speedy

22 preliminary hearing and trial. Id. Wade remained in jail without examination of bail, the

23 protection of the statutory speedy trial rights, or legal representation until the “further

24 arraignment,” at which counsel was appointed and Wade entered his plea. Id. at ¶¶ 35-36.

25

Plaintiffs allege that Farrow and Wade represent a class of indigent, in-custody criminal

26 defendants in Contra Costa County that asked for appointment of the Public Defender, suffered an

27
28 1 Consistent with the remainder of the Complaint, it appears that Plaintiffs intended to allege that Wade was arrested
on November 8, 2011.
4

1 automatic continuance of between 5 and 13 days as a consequence of asserting their right to

2 appointed counsel without any knowledge of their bail rights or statutory speedy trial rights, were

3 deprived of counsel between 5 and 13 days, and were deprived of their statutory speedy trial rights

4 and their right to a prompt bail hearing during the 5 to 13 day period. Id. at ¶ 41. Plaintiffs further

5 allege that the putative class was deprived of said rights pursuant to the Public Defender‟s written

6 policy, that the Public Defender maintains written records with regard to each Plaintiff, and that

7 the Public Defender knew that the actions alleged in the Complaint violated state and federal law

8 when she committed said actions. Id.

9

Plaintiffs allege six causes of action:

10

(1) Violation of the Sixth Amendment of the U.S. Constitution: Plaintiffs allege that

11 Defendant‟s failure to represent Plaintiffs at their first appearance, or a reasonable time thereafter,

United States District Court Northern District of California

12 violated their Sixth Amendment right to the assistance of court appointed counsel. Id. at ¶ 47.

13 Plaintiffs allege that they are entitled to recover damages pursuant to 42 U.S.C. § 1983 because

14 Defendant‟s actions, taken under the color of law, directly and proximately damaged them. Id.

15

(2) Violation of the Fourteenth Amendment of the Constitution – Substantive Due

16 Process with Respect to Statutory Speedy Trial Rights: Plaintiffs allege that Defendant‟s conduct

17 amounted to deliberate indifference and resulted in denial of Plaintiffs‟ statutory speedy trial rights

18 without a hearing to determine the cause and reasonableness of the denial in violation of the

19 Fourteenth Amendment. Id. at ¶ 50. Plaintiffs allege that they are entitled to recover damages

20 pursuant to 42 U.S.C. § 1983 because Defendant‟s actions, taken under the color of law, directly

21 and proximately damaged them. Id.

22

(3) Violation of the Fourteenth Amendment of the Constitution – Procedural Due

23 Process with Respect to Statutory Speedy Trial Rights: Plaintiffs repeat the allegations in their

24 second cause of action. Id. at ¶ 53.

25

(4) Violation of the Fourteenth Amendment – Procedural Due Process with Respect to

26 Application for Bail or Release on Own Recognizance: Plaintiffs allege that Defendant‟s

27 deliberate indifference caused them to be denied their right to a prompt bail hearing. Id. at ¶ 56.

28 Plaintiffs allege that they are entitled to recover damages pursuant to 42 U.S.C. § 1983 because

5

1 Defendant‟s actions, taken under the color of law, directly and proximately damaged them. Id.

2

(5) Violation of California Civil Code §§ 52 and 52.1: Plaintiffs allege that

3 Defendant‟s conduct forced them to sacrifice their statutory speedy trial rights as a precondition to

4 the appointment of counsel, directly and proximately causing them damage. Id. at ¶ 59. Plaintiffs

5 allege that they are entitled to statutory and other damages for these violations under the Unruh

6 Act. Id.

7

(6) Writ of Mandate to Enforce California Government Code § 27706: Plaintiffs

8 allege that Defendant‟s practices violate California Government Code § 27706, which states that

9 the public defender shall represent criminal defendants at all stages of the proceedings. Id. at ¶ 62.

10 Plaintiffs allege that they are directly damaged by those policies. Id. Therefore, they seek a writ

11 of mandate compelling the Public Defender to comply with her statutory obligation to represent all

United States District Court Northern District of California

12 indigent, in-custody defendants by appearing at their first appearance or at a reasonable time

13 thereafter. Id.

14

B. The Motion to Dismiss

15

Defendant argues that Plaintiffs‟ federal claims are meritless as a matter of law even

16 accepting Plaintiffs‟ factual allegations as true. Motion, 5. Defendant states that the first step in

17 analyzing a Sixth Amendment claim is assessing whether the right to counsel has attached. Id.

18 (citing Rothgery v. Gillespie County, Texas, 554 U.S. 191, 211-12, 128 S.Ct. 2578, 171 L.Ed.2d

19 366 (2008)). Defendant contends that, once the right to counsel has attached, the court must

20 determine if the absence of counsel at a subsequent event harmed the criminal defendant. Id.

21 (citing Rothgery, 554 U.S. at 211-12, 128 S.Ct. 2578, 171 L.Ed.2d 366). Defendant notes that

22 prejudice is presumed where counsel is absent at a subsequent “critical stage.” Id. (citing McNeal

23 v. Adams, 623 F.3d 1283, 1286 (9th Cir. 2010)). Defendant argues that there has been no Sixth

24 Amendment violation because the right to counsel attached at the initial court appearance and

25 there has been no subsequent event at which counsel is not present. Id. at 5-6. Defendant asserts

26 that the Sixth Amendment inquiry is focused on whether a defendant was deprived of counsel at a

27 critical stage, not the amount of time it takes to appoint counsel. Id. at 7. Defendant contends that

28 the initial court appearance was not a critical stage. Id. at 6-7 (citing United States v. Perez, 776

6

1 F.2d 797, 800 (9th Cir. 1985); United States v. Benford, 574 F.3d 1228, 1232-33 (9th Cir. 2009)).

2

Second, Defendant attacks both of Plaintiffs‟ Fourteenth Amendment claims concerning

3 their “statutory speedy trial rights.” Id. at 7-9. Defendant states that the asserted speedy trial

4 rights, provided in state court, derive from California Penal Code §§ 1049.5 and 1382. Id. at 7-8.

5 Defendant contends that, for a Fourteenth Amendment claim to lie, the state statutes must mandate

6 a particular substantive outcome. Id. at 8 (citing Carver v. Lehman, 558 F.3d 869, 872-875 (9th

7 Cir. 2009), cert. denied, Carver v. Vail, 558 U.S. 466, 130 S.Ct. 466, 175 L.Ed.2d 313 (2009)).

8 However, Defendant argues that the Court does not need to resolve whether these statutes mandate

9 a particular substantive outcome because Plaintiffs cannot show a violation of the speedy trial

10 statutes. Id. This is because, Defendant argues, the speedy trial rights do not attach until

11 arraignment. Id. Defendant asserts that “arraignment” includes the reading of the charge and the

United States District Court Northern District of California

12 court asking the defendant for a plea. Id. (citing Cal. Penal Code § 988). Defendant argues that

13 arraignment did not occur until the second court appearance, at which point Plaintiffs were

14 represented. Id. at 9. Therefore, Defendant concludes, the lack of representation at the first court

15 appearance could not have resulted in a violation of the statutes. Id.

16

Third, Defendant argues that Plaintiff cannot assert a claim under the Fourteenth

17 Amendment based on the alleged denial of a prompt bail hearing because there is no such right.

18 Id. at 9-10 (citing Fields v. Henry County, Tennessee, 701 F.3d 180, 185 (6th Cir. 2012) for the

19 propositions that there is no Eighth Amendment right to speedy bail and that the state right to be

20 examined in a bail hearing does not establish a liberty interest worthy of protection under the

21 Fourteenth Amendment).

22

Having addressed each of Plaintiffs‟ federal claims, Defendant argues that the Court has no

23 subject matter jurisdiction over the remaining state law claims. Id. at 10. Should the Court

24 exercise jurisdiction over this case, Defendant contends that the state law claims lack merit. Id.

25 First, Defendant asserts that Plaintiffs‟ claims under California Civil Code §§ 52 and 52.1 are

26 based on the alleged denial of Plaintiffs‟ speedy trial rights, a theory that is flawed for the reasons

27 stated above. Id. Second, Defendant contends that she complies with California Government

28 Code § 27706 by providing counsel at the next hearing following the state court‟s order of referral.

7

1 Id.

2

C. The Opposition

3

First, Plaintiffs argue that Defendant denied them their Sixth Amendment right to counsel.

4 Opposition, 9-15. Plaintiffs argue that counsel must be appointed within a reasonable time after

5 attachment to allow for adequate representation at any critical stage before trial, as well as trial

6 itself. Id. at 10 (citing Rothgery, 554 U.S. at 212, 128 S.Ct. 2578, 171 L.Ed.2d 366). Plaintiffs

7 assert that the critical stage analysis is jurisdiction specific. Id. at 14 (citing Hamilton v. Alabama,

8 368 U.S. 52, 54, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961)). Plaintiffs argue that, in California,

9 arraignment and ensuing time period preceding trial are critical stages. Id. at 12 (citing United

10 States v. Hamilton, 391 F.3d 1066, 1070 (9th Cir. 2004)). Plaintiff states that the Ninth Circuit

11 applies a three-factor test for determining a critical stage, considering whether: (1) failure to

United States District Court Northern District of California

12 pursue strategies or remedies results in the loss of significant rights; (2) skilled counsel would be

13 useful in helping the accused understand the legal confrontation; and (3) the proceeding tests the

14 merits of the accused‟s case. Id. at 12-13 (citing Benford, 574 F.3d 1228). Plaintiffs argue that

15 Defendant‟s absence at the initial court appearance forced Plaintiffs to (1) forego their right to

16 enter a plea at arraignment; (2) forego examination regarding whether bail was excessive; (3)

17 forego applying for lower bail or release on their own recognizance; (4) allow a continuance in

18 violation of California Penal Code § 1050, which provides the right to a preliminary hearing at the

19 earliest possible time; (5) forego their right to an immediate probable cause hearing when charged

20 with a misdemeanor; (6) forego all investigation and preparation of their cases while they waited

21 in jail; and (7) forego examination for diversion. Id. at 13. Plaintiffs argue that this satisfied the

22 Benford criteria. Id.

23

Moreover, Plaintiffs assert that Defendant violated their Sixth Amendment rights when it

24 required them to wait in jail for 5 to 13 days as a precondition to the appointment of counsel. Id.

25 at 10. Plaintiffs contend that appointment of counsel was necessary in the days between hearings

26 as the only possible means of asserting pretrial rights and investigation in preparation for trial. Id.

27 Plaintiffs argue that the time they remained in custody awaiting their next court appearance was a

28 critical stage of the trial for this reason. Id. at 10-11. Plaintiffs express concern that, if

8

1 Defendant‟s arguments are accepted, there would be no violation of law if Defendant delayed

2 coming to court for a prolonged period after the first appearance. Id. at 11.

3

Second, Plaintiffs argue that Defendant violated their Fourteenth Amendment due process

4 right to a speedy trial. Id. at 15-18. Plaintiffs state that, pursuant to California Penal Code § 1050,

5 criminal defendants have a right to a preliminary hearing and a trial at the earliest possible time,

6 and that the criminal cases may only be continued upon a showing of good cause. Id. at 15.

7 Plaintiffs argue that Defendant‟s policy resulted in continuance without Plaintiffs‟ becoming

8 aware of their rights or any showing of good cause. Id. Plaintiffs contend that the failure to

9 provide enough public defenders in such a way that forces the indigent to choose between the right

10 to a speedy trial and the right to representation of competent counsel denies their right to a speedy

11 trial. Id. at 15-16 (citing People v. Johnson, 26 Cal.3d 557, 571, 162 Cal.Rptr. 431, 606 P.2d 738

United States District Court Northern District of California

12 (1980)). Plaintiffs assert that California Penal Code § 859b entitles them to a preliminary hearing

13 at the earliest possible time, ten days after the initial court appearance unless the matter were

14 continued, with good cause, to another date for entry of plea. Id. at 16. Plaintiffs argue that

15 Defendant‟s policy results in continuance without good cause, thwarting the statutory scheme. Id.

16 To the extent that entry of a plea is required to trigger the statutory scheme, Plaintiffs contend that

17 Defendant has prevented them from being able to enter their plea and has thereby forced them,

18 through inaction, to choose between their statutory speedy trial rights and their right to counsel.

19 Id. at 16-18.

20

Plaintiffs assert that their statutory speedy trial rights are mandatory, and create a liberty

21 interest that is protectable under the Fourteenth Amendment. Id. at 18. Plaintiffs note that Article

22 I, Section 13 of the California Constitution declares that, “In criminal prosecutions, in any court

23 whatever, the party accused shall have the right to a speedy and public trial.” Id. Plaintiffs assert

24 that criminal charges brought against them must be dismissed if the preliminary hearing is set or

25 continued, absent good cause or waiver by the parties, beyond the time period for holding the

26 preliminary hearing specified by statue. Id. (citing Ramos v. Superior Court, 146 Cal.App.4th

27 719, 53 Cal.Rptr.3d 189 (2007)).

28

Third, Plaintiffs argue that Defendant prevented the magistrate from exercising

9

1 independent judgment with respect to bail. Id. at 19-21. Plaintiffs assert that the Supreme Court

2 has recognized the right to a bail hearing, and has stated that relief must be speedy. Id. at 19

3 (citing Stack v. Boyle, 342 U.S. 1, 4, 72 S.Ct. 1, 96 L.Ed. 3 (1951)). Plaintiffs contend that, under

4 California law, a bail hearing must be held in open court within 48 hours. Id. at 19-20 (citing Cal.

5 Penal Code §§ 825, 1270.1). Plaintiffs state that Defendant‟s policy prevented the magistrate from

6 exercising independent judgment because it restricted the flow of information to the court

7 regarding any favorable information concerning Plaintiffs‟ circumstances in violation of California

8 Penal Code § 1270.1. Id. at 20-21 (citing People v. Grace, 166 Cal.App.2d 68, 79, 332 P.2d 811

9 (1958)). Plaintiffs contend that controlling Ninth Circuit precedent establishes that a violation

10 may be found where officials interfere with the magistrate‟s judgment, which Plaintiffs argue

11 happened in this case. Id. at 21 (citing Galen v. County of Los Angeles, 477 F.3d 652 (9th Cir.

United States District Court Northern District of California

12 2007)).

13

Fourth, Plaintiffs argue that Defendant is not in compliance with Government Code §

14 27706. Id. at 21-24. Plaintiffs assert that the Public Defender has an independent duty to seek

15 immediate appointment to represent in-custody indigent defendants. Id. at 22. Plaintiffs contend

16 that Defendant‟s failure to appear in the case until the continued arraignment disadvantages

17 criminal defendants and fails to comply with Defendant‟s statutory duty. Id. at 24.

18

D. The Reply

19

Defendant addresses several points in Reply. First, applying Benford, Defendant argues

20 that the initial appearance was not a critical stage. Defendant‟s Reply in Support of Motion to

21 Dismiss (“Reply”), 3-4. Defendant implies that the rights that Plaintiffs contend they lost at the

22 initial appearance were not alleged in the Complaint and that Plaintiffs lack standing to raise some

23 of those rights, as felony defendants. Id. at 3. In any event, Defendant argues that Plaintiffs were

24 able to assert each of the purportedly denied rights either at their further arraignment or thereafter.

25 Id. at 3-4 (citing Cal. Penal Code §§ 859b, 1000(b)).

26

Second, Defendant argues that whether Plaintiffs were forced to remain in jail until the

27 second appearance is irrelevant to their Sixth Amendment claim. Id. at 4. Defendant contends

28 that Plaintiffs‟ factual allegations do not plausibly lead to the conclusion that Plaintiffs remained

10

1 in jail as a result of the absence of counsel at the preliminary hearing, given that they may not have

2 been eligible for diversion or able to obtain or afford reduced bail. Id. Moreover, Defendant

3 argues that the time period during which counsel must be appointed is governed primarily by the

4 subsequent event, not the time it takes to appoint counsel. Id. Defendant notes that courts have

5 approved delays of over a month in appointment. Id. at 4-5 (citing Grogen v. Gautreaux, 2012

6 U.S. Dist. LEXIS 120411, at *10 (M.D. La. July 11, 2012); Hawkins v. Montague County, Texas,

7 2010 U.S. Dist. LEXIS 116361, at *35 (W.D. Tex. Nov. 1, 2010)). Further, Defendant asserts that

8 it had no role in determining the length of the delay because the next court date was set by the

9 state court judge. Id. at 5.

10

Third, Defendant addresses Plaintiffs‟ asserted speedy trial rights. Id. at 5-7. Defendant

11 states that Plaintiffs added California Penal Code § 1050 in their Opposition, but that § 1050 is by

United States District Court Northern District of California

12 its own terms discretionary and therefore does not convey the requisite liberty interest to support a

13 § 1983 claim. Id. at 6. Defendant also rejects Plaintiffs‟ contention that Defendant forced them to

14 give up their speedy trial rights, arguing that those rights could have been asserted at arraignment

15 and subsequently. Id.

16

Fourth, Defendant addresses Plaintiffs‟ asserted bail rights. Id. at 7. Defendant argues that

17 Plaintiffs could have sought lower bail at their subsequent arraignment or later in their criminal

18 proceedings. Id. (citing Cal. Penal Code §§ 1269c, 1270.1).

19 IV. ANALYSIS

20

A. Legal Standard

21

A complaint may be dismissed for failure to state a claim for which relief can be granted

22 under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Fed. R. Civ. P. 12(b)(6). “The

23 purpose of a motion to dismiss under Rule 12(b)(6) is to test the legal sufficiency of the

24 complaint.” N. Star. Int’l v. Ariz. Corp. Comm’n, 720 F.2d 578, 581 (9th Cir. 1983). In ruling on

25 a motion to dismiss under Rule 12(b)(6), the Court takes “all allegations of material fact as true

26 and construe[s] them in the light most favorable to the non-moving party.” Parks Sch. of Bus. v.

27 Symington, 51 F.3d 1480, 1484 (9th Cir. 1990).

28

Generally, the plaintiff‟s burden at the pleading stage is relatively light. Rule 8(a) requires

11

1 a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R.

2 Civ. P. 8(a)(2). The complaint need not contain “detailed factual allegations,” but must allege

3 facts sufficient to “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S.

4 662, 663 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 547 (2007)). The factual

5 allegations must be definite enough to “raise a right to relief above the speculative level on the

6 assumption that all of the complaint‟s allegations are true.” Twombly, 550 U.S. at 545. “[T]he

7 tenet that a court must accept a complaint‟s allegations as true is inapplicable to threadbare recitals

8 of a cause of action‟s elements, supported by mere conclusory statements.” Iqbal, 556 U.S. at

9 663.

10

B. 42 U.S.C. § 1983 Claims

11

42 U.S.C. §1983 provides a cause of action against any person who, under color of state

United States District Court Northern District of California

12 law, deprives another of any rights, privileges, or immunities secured by the Constitution or laws

13 of the United States. § 1983 is not a source of substantive rights, but merely a method for

14 vindicating federal rights established elsewhere. Graham v. Connor, 490 U.S. 386, 393-94, 109

15 S.Ct. 1865, 104 L.Ed.2d 443 (1989). To state a claim for a violation of § 1983, a plaintiff must

16 allege deprivation of a constitutional right by a government official acting “under the color of state

17 law.” Broam v. Bogan, 320 F.3d 1023, 1028 (9th Cir. 2003).

18

Plaintiffs sufficiently allege that Defendant, sued in her official capacity as the Public

19 Defender for Contra Costa County, acted “under the color of state law.” See Am. Mfrs. Mut. Ins.

20 Co. v. Sullivan, 526 U.S. 40, 50, 119 S.Ct. 977, 143 L.Ed.2d 130 (1999) (allegations against public

21 officials satisfy the state action requirement); Miranda v. Clark County, 319 F.3d 465, 469-71 (9th

22 Cir. 2003) (Public Defender is a state actor for the purposes of § 1983 when acting solely as the

23 administrative head of the agency, on behalf of the county, in determining how the overall

24 resources of the Public Defender‟s office will be spent). Nevertheless, as discussed below, the

25 Court concludes that Plaintiff has not sufficiently alleged a cause of action pursuant to § 1983.

26 Each of the § 1983 claims is dismissed with leave to amend.

27

1. Sixth Amendment Right to Counsel

28

The Sixth Amendment of the United States Constitution guarantees the accused, in all

12

1 criminal prosecutions, the right “to have the assistance of counsel for his defense.” U.S. Const.

2 amend. VI. The Federal Rules of Criminal Procedure require the court to advise the accused of

3 the constitutional guarantee. Fed. R. Crim. P. 44 (“If the defendant appears in court without

4 counsel, the court shall advise him of his right to counsel and assign counsel to represent him at

5 every stage of the proceeding unless he elects to proceed without counsel or is able to obtain

6 counsel”). As described below, the Court concludes that Plaintiffs have not alleged a violation of

7 the Sixth Amendment right to counsel. This Court addresses only the narrow circumstances

8 identified in the Complaint: at the Plaintiffs‟ first appearance, the only thing that happened

9 (presumably after being provided with a copy of the charges) was a request for appointment of

10 counsel. No other court proceedings occurred without counsel. Whether or not there was a delay

11 between the initial appearance and the next appearance, the only specific allegation of prejudice is

United States District Court Northern District of California

12 the brief delay in the assertion of speedy trial rights or the right to seek a reduction of bail, release

13 on the defendant‟s own recognizance, or diversion. No rights were lost. As alleged, counsel was

14 present at each critical stage following attachment of the right to counsel and Plaintiffs have not

15 plausibly alleged that their representation at a subsequent critical stage was prejudiced by any

16 delay in appointing counsel following attachment.

17

a. Attachment

18

i. Background Law

19

The Sixth Amendment right to counsel in criminal prosecutions attaches when prosecution

20 begins. Rothgery, 554 U.S. at 198-99, 128 S.Ct. 2578, 171 L.Ed.2d 366 (citing McNeil v.

21 Wisconsin, 501 U.S. 171, 175, 111 S.Ct. 2204, 115 L.Ed.2d 158 (1991)). Prosecution begins with

22 the initiation of adversarial judicial criminal proceedings, “whether by way of formal charge,

23 preliminary hearing, indictment, information, or arraignment.” Id. at 198-99 (quoting United

24 States v. Gouveia, 467 U.S. 180, 188, 104 S.Ct. 2292, 81 L.Ed.2d 146 (1984)). Federal law

25 determines what suffices as a commitment to prosecute for purposes of the attachment of the right

26 to counsel. Id. at 207 (citing Moran, 475 U.S. at 429, n. 3 (“[T]he type of circumstances that

27 would give rise to the right would certainly have a federal definition”). The right to counsel

28 attaches at the initial appearance before a judicial officer, which is generally the hearing at which

13

1 “the magistrate informs the defendant of the charge in the complaint, and of various rights in

2 further proceedings,” and “determine[s] the conditions for pretrial release.” Id. (citing 1 W.

3 LaFave, J. Israel, N. King, & O. Kerr, Crim. P. § 1.4(g), p 135 (3d ed. 2007)).

4

ii. Application to Facts

5

Following Rothgery, the right to counsel in this case attached at each Plaintiff‟s initial

6 appearance. The parties agree on this point. Motion, 5-6 (“the right to counsel attached at the

7 initial court appearance”); Opposition, 10 (“the right to counsel attached at the initial court

8 appearance”). At the initial court appearance, the Court asked each Plaintiff whether he could

9 afford counsel. Complaint, ¶¶ 31, 35. Each responded that he could not and would like the court

10 to appoint counsel. Id. After the right to counsel attached, the court referred Plaintiffs‟ cases to

11 the Defendant and continued the arraignment to a later hearing date referred to as “further

United States District Court Northern District of California

12 arraignment.” Id. Neither Plaintiff was asked to enter a plea. Id. At the further arraignment

13 hearing, each Plaintiff was represented by counsel and entered a plea. Id. at ¶¶ 32, 36.

14

b. Critical Stage

15

i. Background Law

16

Once the right to counsel attaches, the accused is entitled to appointed counsel during any

17 “critical stage” of the post-attachment proceedings. Rothgery, 554 U.S. at 212, 128 S.Ct. 2578,

18 171 L.Ed.2d 366. A critical stage is a “stage of a criminal proceeding where substantial rights of a

19 criminal accused may be affected.” Hovey v. Ayers, 458 F.3d 892, 901 (9th Cir. 2006) (quoting

20 Mempa v. Rhay, 389 U.S. 128, 134, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967)). While there is no

21 definitive list of critical stages, decisions of the United States Supreme Court identify certain

22 stages as critical. See Iowa v. Tovar, 541 U.S. 77, 81, 124 S.Ct. 1379, 158 L.Ed.2d 209 (2004)

23 (entry of a guilty plea); Gardner v. Florida, 430 U.S. 349, 358, 97 S.Ct. 1197, 51 L.Ed.2d 393

24 (1977) (sentencing); United States v. Wade, 388 U.S. 218, 236-37, 87 S.Ct. 1926, 18 L.Ed.2d 1149

25 (1967) (post-indictment lineup). Case law also illustrates stages that are not critical. Gilbert v.

26 California, 388 U.S. 263, 267, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967) (taking a handwriting

27 sample); United States v. Ash, 413 U.S. 300, 321, 93 S.Ct. 2568, 37 L.Ed.2d 619 (1973) (post-

28 indictment photo lineup); Hovey, 458 F.3d at 902 (mid-trial hearing on the competency of

14

1 defendant‟s lawyer).

2

Courts decide whether a state criminal proceeding is critical by looking to the functions of

3 the proceeding under state law. See Hamilton v. Alabama, 368 U.S. 52, 54, 82 S.Ct. 157, 7

4 L.Ed.2d 114 (1961) (“Whatever may be the function and importance of arraignment in other

5 jurisdictions, we have said enough to show that in Alabama it is a critical stage in a criminal

6 proceeding”); see also United States ex rel. Cooper v. Reincke, 333 F.2d 608, 612 (2d Cir. 1964)

7 (“The Connecticut hearing in probable cause cannot, therefore, be characterized as critical as is

8 arraignment in Alabama”). The Ninth Circuit has developed a three-factor test for determining

9 whether a stage is critical. Menefield v. Borg, 881 F.2d 696, 698-99 (9th Cir. 1989); Benford, 574

10 F.3d at 1232; McNeal, 623 F.3d at 1289. Any one of these three factors may be sufficient to make

11 a stage critical: (1) failure to pursue strategies or remedies results in a loss of significant rights;

United States District Court Northern District of California

12 (2) skilled counsel would be useful in helping the accused understand the legal confrontation; and

13 (3) the proceeding tests the merits of the accused‟s case. Menefield, 881 F.2d at 699; Hovey, 458

14 F.3d at 901-02. In reviewing the plaintiff‟s lack of counsel at a motion for a new trial, the

15 Menefield court considered the substantive rights in question and whether the presence of counsel

16 would have helped the defendant enforce those rights. Id.

17

ii. Application to Facts

18

Plaintiffs‟ right to counsel attached at the initial court appearance. Once each Plaintiff

19 sought appointed counsel, the court stopped the proceeding and continued the arraignment to a

20 further hearing, where the accused would be represented by counsel. Each Plaintiff was then

21 asked to enter plea at the further arraignment hearing. In California, arraignment consists of

22 “reading the accusatory pleading to the defendant and delivering to the defendant a true copy

23 thereof, and … asking the defendant whether the defendant pleads guilty or not guilty to the

24 accusatory pleading.” Cal. Penal Code § 988. Plaintiffs‟ arraignment began at their initial

25 appearance. It was completed at the further arraignment hearing because that is when they were

26 apprised of the charges against them and asked to enter a plea. It is undisputed that Plaintiffs were

27

28

15

1 represented by counsel at further arraignment, consistent with California law.2

2

Plaintiffs contend that Defendant violated Plaintiffs‟ constitutional right to counsel by

3 failing to represent Plaintiffs at their first appearance, or a reasonable time thereafter. Complaint,

4 ¶ 47. They argue that the initial appearance and the five-to-thirteen-day waiting period were

5 critical stages of the proceedings. Opposition, 11. The core of Plaintiffs‟ complaint is that the

6 five-to-thirteen-day delay before Defendant represented Plaintiffs at the arraignment hearing was

7 “unreasonable” under the Sixth Amendment. Complaint, ¶ 42(1). The Court recognizes that, at

8 some point, the delay in appointment of counsel may be so long that it amounts to a deprivation of

9 significant rights of the accused. The limited holding here is that, on the facts alleged in this case,

10 no such deprivation has occurred.

11

The Court applies the Ninth Circuit‟s three-factor test to determine whether the initial

United States District Court Northern District of California

12 appearance or the waiting period thereafter was a critical stage. Beginning with the first factor of

13 the Ninth Circuit‟s test, the absence of counsel to pursue strategies or remedies at the initial

14 appearance (where the only event was an inquiry about the need for counsel) or in the hiatus

15 before the next hearing did not result in a loss of significant rights to Plaintiffs. Plaintiffs assert

16 that they lost the rights to a prompt bail hearing and to a speedy trial. Complaint, ¶ 42. However,

17 Plaintiffs could have asserted those rights at the further arraignment or later. Indeed, Plaintiffs

18 maintained their rights--they entered a plea at the further arraignment, Complaint, ¶¶ 32, 36; they

19 could have requested lower bail at or after arraignment, In re Weiner, 32 Cal.App.4th 441, 444, 38

20 Cal.Rptr.2d 172 (1995) (citing Cal. Penal Code §§ 1269b, 1269c, 1273, 1277, 1476, 1538.5(k));

21 their speedy trial rights, including the right to a speedy preliminary examination, were still

22 triggered by arraignment or entry of plea, Cal. Penal Code § 859b; and they could have sought

23 diversion at arraignment, Cal. Penal Code § 1000b. Contrary to Plaintiffs‟ allegations, they lost

24 none of these rights. Like the Hovey plaintiff and his mid-trial attorney competency hearing,

25

26 2 California law guarantees the right to counsel at arraignment. People v. Cummings, 255 Cal.App.2d 341, 345, 62 27 Cal.Rptr. 859 (1967); see also Cal. Pen Code § 987(a) (“In a noncapital case, if the defendant appears for arraignment
without counsel, he or she shall be informed by the court that it is his or her right to have counsel before being
28 arraigned, and shall be asked if he or she desires the assistance of counsel. If he or she desires and is unable to employ
counsel the court shall assign counsel to defend him or her”).
16

1 Plaintiffs were “not at risk of permanent deprivation of any significant rights during the hearing.”

2 458 F.3d at 902. The bare allegation that they were delayed from five to thirteen days in asserting

3 those rights – until counsel could be appointed to represent them – did not amount to a deprivation

4 substantial enough to make the delay unreasonable, or a “critical stage.”

5

The fact that, had counsel been appointed at or closer to the initial appearance, counsel

6 might have applied for release on bail, caused a plea to be entered, or triggered statutory speedy

7 trial rights, does not change this analysis. Nothing happened at the initial appearance other than a

8 determination that Plaintiffs desired the appointment of counsel. The first appearance was not,

9 therefore, a critical stage. The state court correctly continued the matters until counsel could be

10 present. Similarly, no rights were lost or prejudiced during the brief waiting period. Indeed,

11 immediately after the subsequent appointment of counsel, Plaintiffs could still enter a plea, invoke

United States District Court Northern District of California

12 their statutory speedy trial rights, or seek release on bail. Standing alone, the brief temporary

13 delay in assertion of these rights is not a sufficient deprivation to constitute a denial of their right

14 to counsel.

15

The Ninth Circuit‟s decision in Benford is instructive on this point. There, counsel did not

16 appear at a pre-trial conference. The defendant argued that, had counsel been present, he could

17 have moved for a continuance of the trial. Benford, 574 F.3d at 1232. The Ninth Circuit, noting

18 that “[n]othing significant occurred at the status conference,” concluded that it was not a “critical

19 stage” of the proceedings. Id. at 1232-33. The court rejected the defendant‟s argument that his

20 counsel could have asked for a continuance of the trial at the conference, noting that counsel could

21 “have moved for a continuance before the conference or after it.”

22

It is apparent from Benford that an appearance at which nothing happens (as is the case

23 here, where nothing occurred after the court asked whether Plaintiffs desired the appointment of

24 counsel) after which the defendant, represented by counsel, can still invoke his rights (here, their

25 statutory speedy trial rights, their right to a hearing on bail, and any right to seek a diversion) is

26 not a critical stage of the proceedings. The same can be said of a brief waiting period – here, five

27 to thirteen days – after the initial appearance.

28

Second, skilled counsel would not have been useful in helping the accused understand the

17

1 legal confrontation at the first appearance because there was no legal confrontation after the

2 accused requested counsel. There was also no legal confrontation during the five to thirteen days

3 Plaintiffs waited for further arraignment. Plaintiffs were subject to no adversarial proceeding

4 during this time. Nothing happened at the initial appearance after the court inquired whether

5 counsel should be appointed or during the five-to-thirteen day waiting period to test the merits of

6 the Plaintiffs‟ case. See Benford, 574 F.3d at 1233 (no “legal confrontation” at the pretrial status

7 conference, which was not a critical stage of the proceedings).

8

Plaintiffs cite Hurrell-Harring v. State of New York, 15 N.Y.3d 8, 904 N.Y.S.2d 296, 930

9 N.E.2d 217 (2010) as persuasive authority for the proposition that the arraignment and the time

10 between arraignment and trial are critical stages of the prosecution. In Hurrell-Harring, a number

11 of the twenty plaintiffs were unrepresented at arraignment, jailed after bail had been set in

United States District Court Northern District of California

12 amounts they could not afford, and remained unrepresented in subsequent proceedings where their

13 pleas were taken. Hurrell-Harring, 15 N.Y.3d at 19, 904 N.Y.S.2d 296, 930 N.E.2d 217. Several

14 other plaintiffs were nominally appointed counsel, but counsel was often unavailable, completely

15 unresponsive to urgent inquiries from jail, waived important rights without consulting plaintiffs,

16 missed court appearances, and appeared in court unprepared to proceed. Id. at 19-20.

17

The court held that the arraignment was a critical stage of the proceedings, even where no

18 plea was entered, because “plaintiffs‟ pretrial liberty interests were on that occasion regularly

19 adjudicated.” Id. at 20 (citing N.Y. Crim. Proc. Law § 180.10(6) (“Upon arraignment, the court,

20 unless it intends immediately thereafter to dismiss the felony complaint and terminate the action,

21 must issue a securing order which, as provided in subdivision two of section 530.20, either

22 releases the defendant on his own recognizance or fixes bail or commits him to the custody of the

23 sheriff for his future appearance in such action”) (concerning proceedings upon a felony

24 complaint)). The court noted that, under New York law, a court is forbidden by statute “from

25 going forward with the [arraignment] without counsel for the defendant, unless the defendant has

26 knowingly agreed to proceed in counsel‟s absence.” Id. at 20-21 (citing N.Y. Crim. Proc. Law §

27 180.10(3) (“The defendant has a right to the aid of counsel at the arraignment and at every

28 subsequent stage of the action, and, if he appears upon such arraignment without counsel, has the

18

1 following rights: (a) To an adjournment for the purpose of obtaining counsel; and … (c) To have

2 counsel assigned by the court in any case where he is financially unable to obtain the same”),

3 180.10(5) (“If the defendant desires to proceed without the aid of counsel, the court must permit

4 him to do so if it is satisfied that he made such decision with knowledge of the significance

5 thereof, but if it is not so satisfied it may not proceed until the defendant is provided with counsel,

6 either of his own choosing or by assignment”)). The court concluded that “arraignments routinely,

7 and in New York as a matter of statutory design, encompass matters affecting a defendant‟s liberty

8 and ability to defend against the charges.” Id. at 21. The court also broadly held that “the period

9 between arraignment and trial” is also a critical stage under the Sixth Amendment. Id. at 21-22.

10

Hurrell-Harring is distinguishable from the present action. In Hurrell-Harring, the court‟s

11 holding relied on the fact that a number of pretrial liberty interests were adjudicated at the

United States District Court Northern District of California

12 arraignment, at which the right to counsel attached, without the presence of counsel. Here, no

13 pretrial liberty interests were adjudicated in the initial appearance, or in the following days, in the

14 absence of counsel. Rather, the arraignment was continued to allow for the appointment of

15 counsel. Indeed, this procedure is not facially inconsistent with the New York statutory

16 framework on which the holding in Hurrell-Harring was based. Moreover, the present case

17 involves only a five-to-thirteen day waiting period for the appointment of counsel during which

18 nothing happened to test the merits of Plaintiffs‟ case, not a denial of counsel throughout the much

19 longer time period between arraignment and trial.

20

DeWolfe v. Richmond, __ Md. __, __ A.3d __, 2012 WL 10853 (Jan. 4, 2012), cited by

21 Plaintiffs, is also distinguishable. In DeWolfe, the court held that, pursuant to Maryland state law,

22 the public defender was required to represent a criminal defendant at the bail hearing portion of

23 their initial appearance. DeWolfe, __ Md. __, __ A.3d __, 2012 WL 10853 at *13. Thus, the court

24 held that the bail hearing may not occur at the initial appearance, assuming the defendant qualified

25 for public defender representation, unless counsel had been appointed or the defendant waived the

26 right to counsel. Id. at *17. “If a public defender is not immediately available to assume

27 representation, then the Commissioner must delay the bail hearing until such representation can be

28 provided or is waived by the defendant.” Id. In reaching its conclusion, the court repeatedly

19

1 stated that the relevant Maryland state law it was interpreting affords broader protection than the

2 Sixth Amendment. Id. at *7, *9-*11. First, DeWolfe differs from the present case in that involves

3 only the interpretation of Maryland state law. Second, DeWolfe differs in that a bail hearing was

4 held in the absence of counsel. Moreover, the facts of this case appear consistent with the

5 statement in DeWolfe that the Commissioner must delay the portion of the initial appearance that

6 constituted a critical stage, the bail hearing, until representation could be provided to a qualifying

7 defendant. That is what was done in this case.

8

c. Length of Delay and Prejudice

9

Because the Court finds that the portion of the initial appearance after the accused

10 requested counsel and the five-to-thirteen-day waiting period were not critical stages, the first

11 critical stage after attachment of the right to counsel was the further arraignment. The Court now

United States District Court Northern District of California

12 examines whether Plaintiffs‟ have sufficiently alleged that their Sixth Amendment rights were

13 violated with respect to the timing of representation for the further arraignment and concludes that

14 they have not.

15

i. Background Law

16

Though Rothgery requires the appointment of counsel within a reasonable time to allow

17 for adequate representation at any critical stage after attachment, it does not address the issue of

18 how much time is reasonable before counsel is appointed. Rothgery, 554 U.S. at 212 n.15, 128

19 S.Ct. 2578, 171 L.Ed.2d 366 (“We do not here purport to set out the scope of an individual‟s

20 postattachment right to the presence of counsel. It is enough for present purposes to highlight that

21 the enquiry into that right is a different one from the attachment analysis”). After Rothgery,

22 federal district courts have three times addressed the issue of whether a delay in the appointment

23 of counsel is reasonable. In all three cases, the district court has declined to find the delay – forty

24 days, two months, and an unspecified period – unreasonable without proof of actual prejudice:

25

Finally, although the right to counsel under the Sixth Amendment

26

attaches at the time of an arrestee‟s initial appearance, Rothgery v. Gillespie County, Texas, 554 U.S. 191, 128 S.Ct. 2578, 171 L.Ed.2d

27

366 (2008), neither the Supreme Court nor the Fifth Circuit has

determined that counsel must be appointed within a specific period

28

of time thereafter. … All that the plaintiff has alleged in this case is

20

that he was not provided with appointed counsel for a period of forty

1

(40) days after his arrest. He fails to allege, however, that he

2

suffered any actual prejudice as a result of this delay or that, had an

attorney been appointed at an earlier time, a meritorious defense

3

might have been asserted resulting in his release or in the dismissal

of the charges levied against him. … Accordingly, in the absence of

4

any assertion of prejudice resulting from the alleged delay, this

5

Court concludes that the alleged 40-day delay in the appointment of counsel was not so unreasonable as to result in a Sixth Amendment

6

violation.

7 Grogen, 2012 U.S. Dist. LEXIS 120411 at *9-*10; see also Hawkins, 2010 U.S. Dist. LEXIS

8 116361 at *35 (“The Court finds that the approximate two-month delay in receiving court-

9 appointed counsel fails to rise to the level of a constitutional violation based on the Sixth

10 Amendment.”); Wingo v. Kaufman County, 2010 U.S. Dist. LEXIS 55865, *2-*3 (N.D. Tex. June

11 4, 2010) (“The court can not determine from plaintiff's complaint … whether the delay in

United States District Court Northern District of California

12 appointment of counsel was reasonable or whether plaintiff suffered any prejudice from the

13 delay.”).

14

ii. Application to Facts

15

The district court decisions in Grogen, Hawkins, and Wingo make clear that, although

16 there is no specific timeframe that federal courts have deemed reasonable for appointment of

17 counsel post-attachment, a court faced with making a reasonableness decision needs to analyze

18 prejudice to the accused that results from delay in appointment of counsel. See Grogen, 2012 U.S.

19 Dist. LEXIS 120411 at *9-*10; Hawkins, 2010 U.S. Dist. LEXIS 116361 at *35; Wingo, 2010

20 U.S. Dist. LEXIS 55865 at *2-*3. Moreover, even if the specific timeframes in the previous

21 district court cases were applied here, the five-to-thirteen-day delays of which Plaintiffs complain

22 are significantly smaller delays than the forty-day and two-month delays the other district courts

23 found permissible.

24

Plaintiffs do not suggest a bright-line rule regarding how quickly counsel should be

25 appointed. However, in arguing that they lost rights during the delay, they argue that they were

26 prejudiced. As discussed above in the Menefield factors, the Court is not persuaded that Plaintiffs

27 were prejudiced by the delay. During the waiting period, Plaintiffs did not lose any of the rights

28 they enumerate, nor did any adversarial action take place that affected the merits or resolution of

21

1 their cases. When adversarial proceedings took place at the further arraignment, Plaintiffs were

2 represented.

3

Plaintiffs also make a conclusory allegation that they were prejudiced because the delay

4 hindered their investigation and preparation for trial. Opposition, 10, 13. Plaintiffs make no

5 specific allegations on this matter nor do they explain how their trial preparation was hindered.

6 Plaintiffs had no less time to prepare for trial than they would have had if counsel had been

7 appointed a few days before or after the time counsel was actually appointed because, as discussed

8 in greater detail below, the preliminary hearing and trial are scheduled from the date of

9 arraignment. There is no indication that Plaintiffs‟ wait for appointment of counsel influenced the

10 scheduling of post-arraignment procedures, including trial, in such a way that reduced the number

11 of days available to them for trial preparation. Prejudice to a defendant‟s fair adjudication may

United States District Court Northern District of California

12 stem, for example, from delays that “weaken the defense through the dimming of memories, the

13 death or disappearance of witnesses, and the loss or destruction of evidence.” See People v.

14 Martinez, 22 Cal. 4th 750, 767, 94 Cal.Rptr.2d 381, 996 P.2d 32 (2000). However, Plaintiffs do

15 not allege that they suffered any such impediments.

16

According to Plaintiffs, failing to treat the five-to-thirteen-day waiting period as a critical

17 stage would mean that Defendant could delay appointment of counsel for an indefinite period of

18 time after the initial hearing without violating the Sixth Amendment right to counsel. Opposition,

19 11. Plaintiffs rely on Sullivan v. County of Los Angeles to highlight the absurdity of such a

20 position: postponing appointment of counsel for ninety-nine years would still not give a plaintiff a

21 basis for redress. 12 Cal.3d 710, 718-19, 117 Cal.Rptr. 241, 527 P.2d 865 (1974). Plaintiffs are

22 mistaken in this logic. As described above, the Court only addresses the delay at issue in this case,

23 five to thirteen days. At some point, a lengthy delay, or a delay accompanied by other events, may

24 indeed constitute a deprivation of a defendant‟s Sixth Amendment rights. But not here. Taking

25 the facts as Plaintiffs allege them to be true, the Court finds that Plaintiffs‟ Sixth Amendment

26 claim lacks merit and it is DISMISSED with leave to amend.

27

2. Fourteenth Amendment Claims – Statutory Speedy Trial Rights

28

In their second and third causes of action, Plaintiffs assert that Defendant violated their

22

1 substantive and procedural due process rights under the Fourteenth Amendment by depriving

2 Plaintiffs of their state law speedy trial rights. Plaintiffs seek damages pursuant to 42 U.S.C. §

3 1983. For the reasons discussed below, Plaintiffs‟ second and third causes of action are

4 DISMISSED with leave to amend.

5

a. Background Law

6

“Unless there is a breach of constitutional rights, … § 1983 does not provide redress in

7 federal court for violations of state law.” Samson v. City of Bainbridge Island, 683 F.3d 1051,

8 1060 (9th Cir. 2012) (quoting Schlette v. Burdick, 633 F.2d 920, 922 n.3 (9th Cir. 1980)). “[N]ot

9 every violation of state law amounts to an infringement of constitutional rights.” Id.

10

Plaintiffs seek to assert their statutory speedy trial rights, provided by the state of

11 California, through the Fourteenth Amendment. The Fourteenth Amendment provides that no

United States District Court Northern District of California

12 state shall “deprive any person of life, liberty, or property without due process of law…” U.S.

13 Const. amend. XIV, § 1. The Fourteenth Amendment contains both procedural and substantive

14 due process protections. United States v. Salerno, 481 U.S. 739, 746, 107 S.Ct. 2095, 95 L.Ed.2d

15 697 (1987).

16

i. Procedural Due Process

17

Courts analyze procedural due process claims in two steps: “[T]he first asks whether there

18 exists a liberty or property interest which has been interfered with by the State; the second

19 examines whether the procedures attendant upon that deprivation were constitutionally sufficient.”

20 Carver, 558 F.3d at 872 (quoting Ky. Dep’t of Corr. v. Thompson, 490 U.S. 454, 460, 109 S.Ct.

21 1904, 104 L.Ed.2d 506 (1989)).

22

“A liberty interest may arise from either of two sources: the due process clause itself or

23 state law.” Id. (citing Toussaint v. McCarthy, 801 F.2d 1080, 1089 (9th Cir. 1986)). “[T]o create

24 a liberty interest protected by due process, the state law must contain: (1) substantive predicates

25 governing official decisionmaking, and (2) explicitly mandatory language specifying the outcome

26 that must be reached if the substantive predicates are met.” Bonin v. Calderon, 59 F.3d 815, 842

27 (9th Cir. 1995), cert. denied, 516 U.S. 1051, 116 S.Ct. 718, 133 L.Ed.2d 671 (1996) (internal

28 quotation marks and citations omitted). Where “[t]he only mandatory language in [the state

23

1 statute at issue] concerns a procedural right …[, t]hat language cannot create a liberty interest

2 within the meaning of the Fourteenth Amendment because expectation of receiving process is not,

3 without more, a liberty interest protected by the Due Process Clause of the Fourteenth

4 Amendment.” Carver, 558 F.3d at 875 (internal quotation marks, footnote, italics, and citations

5 omitted); see also Marsh v. County of San Diego, 680 F.3d 1148, 1156 (9th Cir. 2012) (“to contain

6 the requisite „substantive predicates,‟ „the state law at issue must provide more than merely

7 procedure, it must protect some substantive end‟”) (quoting Bonin, 59 F.3d at 842).

8

ii. Substantive Due Process

9

Substantive due process limits what the government may do in its legislative and executive

10 capacities. County of Sacramento v. Lewis, 523 U.S. 833, 846, 118 S.Ct. 1708, 140 L.Ed.2d 1043

11 (1998). “[A] substantive due process claim „must, as a threshold matter, show a government

12 deprivation of life, liberty, or property.‟” Action Apartment Ass’n, Inc. v. Santa Monica Rent

United States District Court Northern District of California

13 Control Bd., 509 F.3d 1020, 1026 (9th Cir. 2007) (quoting Nunez v. City of Los Angeles, 147 F.3d

14 867, 871 (9th Cir. 1998)).

15

Substantive due process protects against the arbitrary or oppressive exercise of

16 governmental power. See County of Sacramento v. Lewis, 523 U.S. at 845-46, 118 S.Ct. 1708,

17 140 L.Ed.2d 1043. “[T]he Due Process Clause is violated by executive action only when it can be

18 properly characterized as arbitrary, or conscience shocking, in a constitutional sense.” Id. at 847

19 (quoting Collins v. Harker Heights, 503 U.S. 115, 128, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992))

20 (internal quotation marks omitted). The cognizable level of executive abuse of power is that

21 which “shocks the conscience” or “violates the decencies of civilized conduct.” Id. at 846.

22

iii. Statutory Speedy Trial Rights

23

California Penal Code §§ 1049.5 and 1382 create a right to speedy trial; the right to a

24 speedy preliminary hearing arises from California Penal Code § 859b. California Penal Code § 25 1050 provides the procedure for granting continuances.3 The clock for speedy trial determinations 26 and for preliminary hearings begins to run at either arraignment or entry of plea, depending on the

27

28 3 § 1050 “is directory only and does not mandate dismissal of an action by its terms.” Cal. Penal Code § 1050(l). 24

1 statute.

2

In felony cases, the court shall set a date for trial which is within 60

3

days of the defendant's arraignment in the superior court unless, upon a showing of good cause as prescribed in Section 1050, the

4

court lengthens the time. If the court, after a hearing as prescribed in

Section 1050, finds that there is good cause to set the date for trial

5

beyond the 60 days, it shall state on the record the facts proved that

justify its finding. 6

7 Cal. Penal Code § 1049.5 (emphasis added).

8

(a) The court, unless good cause to the contrary is shown, shall order

9

the action to be dismissed in the following cases: … (2) In a felony case, when a defendant is not brought to trial within

10

60 days of the defendant's arraignment…

(3) Regardless of when the complaint is filed, when a defendant in a

11

misdemeanor or infraction case is not brought to trial within 30 days

after he or she is arraigned or enters his or her plea, whichever

12

occurs later, if the defendant is in custody at the time of arraignment

13

or plea, whichever occurs later, or in all other cases, within 45 days after the defendant's arraignment or entry of the plea, whichever

14

occurs later…

United States District Court Northern District of California

15 Cal. Penal Code § 1382 (emphasis added).

16

Both the defendant and the people have the right to a preliminary

17

examination at the earliest possible time, and unless both waive that right or good cause for a continuance is found as provided for in

18

Section 1050, the preliminary examination shall be held within 10

court days of the date the defendant is arraigned or pleads,

19

whichever occurs later, or within 10 court days of the date criminal

proceedings are reinstated…

20

…

21

The magistrate shall dismiss the complaint if the preliminary examination is set or continued more than 60 days from the date of

22

the arraignment, plea, or reinstatement of criminal proceedings …

unless the defendant personally waives his or her right to a

23

preliminary examination within 60 days.

24 Cal. Penal Code § 859b (emphasis added).

25

In California, arraignment is defined by California Penal Code § 988, which provides that

26 arraignment consists of “reading the accusatory pleading to the defendant and delivering to the

27 defendant a true copy thereof, and … asking the defendant whether the defendant pleads guilty or

28 not guilty to the accusatory pleading.” Determining whether or not a statutory speedy trial right

25

1 has been violated involves determining the number of days between the time the accused was

2 arraigned (apprised of charges and asked to enter a plea) and the time of trial. People v. Benhoor,

3 177 Cal.App.4th 1308, 1316, 99 Cal.Rptr.3d 827 (2009) (“section 1382 enforces the speedy trial

4 right with specific deadlines measured by days after certain events, including arraignment,

5 declaration of a mistrial or entry of an order granting a new trial”); see also Craft v. Superior

6 Court, 140 Cal.App.4th 1533, 1546, 44 Cal.Rptr.3d 912 (2006) (section 1382a “enforces the

7 speedy trial right with deadlines measured by days before or after arraignment or other prosecution

8 events”). Where the accused faces an unexcused delay beyond the period set by California Penal

9 Code § 1382 (sixty days after arraignment or entry of plea for felonies, thirty days after

10 arraignment or entry of plea for misdemeanors), he or she is entitled to dismissal of the criminal

11 charge. Martinez, 22 Cal.4th at 766, 94 Cal.Rptr.2d 381, 996 P.2d 32 (quoting People v.

United States District Court Northern District of California

12 Godlewski, 22 Cal.2d 677, 682, 140 P.2d 381 (1943)). Prior to the attachment of statutory speedy

13 trial rights, protection for criminal defendants against unreasonable and prejudicial delays arises

14 from the California constitution as well as the due process clauses of the Fifth and Fourteenth

15 Amendments of the United States Constitution. Benhoor, 177 Cal.App.4th at 1316 n.8, 1317, 99

16 Cal.Rptr.3d 827 (citing Serna v. Superior Court, 40 Cal.3d 239, 251, 219 Cal.Rptr. 420, 707 P.2d

17 793 (1985); Martinez, 22 Cal.4th at 766-67).

18

b. Application to Facts

19

In their Complaint, Plaintiffs do not identify the source of the statutory speedy trial rights

20 on which they predicate two of their Fourteenth Amendment due process claims. In their

21 Opposition, they rely on California Penal Code §§ 859b and 1050. Defendant also addresses the

22 speedy trial rights set forth in California Penal Code §§ 1382 and 1049.5. Whether or not the

23 statutory scheme created a constitutionally protected liberty interest, Plaintiffs have not adequately

24 pled a violation of their statutory speedy trial rights. Therefore, their Fourteenth Amendment

25 claims relying on those statutory violations fail.

26

Each Plaintiff‟s arraignment was complete when they were asked to enter a plea at the

27 further arraignment hearing, in accordance with the definition of arraignment under California

28 state law. See Cal. Penal Code § 988. Plaintiffs assume that the initial hearing, rather than the

26

1 further arraignment, was the arraignment. See Opposition, 16 (time for preliminary hearing under

2 California Penal Code § 859b would be ten days after initial court appearance). However,

3 arraignment was not complete at the initial hearing because neither Plaintiff was asked to enter a

4 plea. Id.; Complaint, ¶¶ 31-32; 35-36. Only when Plaintiffs had been apprised of the accusations

5 against them, given a copy of the accusations, and asked to enter a plea were they arraigned. See

6 Cal. Penal Code § 988.

7

Plaintiffs bolster their arguments about illegal speedy trial delays with legal authorities that

8 are distinguishable from the present case. Plaintiffs rely on People v. Johnson for the premise that

9 the government cannot use the scarcity of public resources as a justification for delaying

10 appointment of counsel. 26 Cal.3d 557, 571-72, 162 Cal.Rptr. 431, 606 P.2d 738 (1980).

11 However, the Johnson court was considering a post-arraignment delay, unlike the case at hand.

United States District Court Northern District of California

12 Id. at 563, 571-72. Johnson is not instructive to the Court on the matters currently before it.

13

Plaintiffs also argue that they were subject to an illegal gratuitous delay, citing Youngblood

14 v. Gates, 200 Cal.App.3d 1302, 1311-12, 246 Cal.Rptr. 775 (1988). However, the question in

15 Youngblood was whether the government had violated the two-day timeframe for taking arrestees

16 before a magistrate. Id. at 1309. In the present case, Plaintiffs have not alleged such a violation.

17 The other legal authorities cited by Plaintiffs do no better than Johnson and Youngblood in

18 shedding light on the issue raised by the present case.

19

Plaintiffs do not allege any delay after the completion of arraignment or the entry of their

20 plea. Thus, they have not alleged: (1) that a preliminary examination was not held “within 10

21 court days of the date [Plaintiffs were] arraigned or [pled], whichever occurs later[;]” (2) that “the

22 preliminary examination [was] set or continued more than 60 days from the date of the

23 arraignment, plea, or reinstatement of criminal proceedings[;]” (3) that the court failed to “set a

24 date for trial which is within 60 days of [Plaintiffs‟] arraignment in the superior court[;]” or (4)

25 that the procedures in § 1050 were triggered. See Cal. Penal Code §§ 859b, 1049.5, 1050, 1382.

26 Accordingly, Plaintiffs have not alleged any deprivation of their statutory rights to a speedy trial

27 and preliminary hearing due to delay that occurred prior to the completion of their arraignment.

28 The Court concludes as a matter of law that Plaintiffs have failed to state a violation of statutory

27

1 speedy trial rights under California state law. Therefore, Plaintiffs have suffered no violation of

2 state statutory rights to a speedy trial on which to base a claim for a violation of the Fourteenth

3 Amendment. Plaintiffs‟ second and third causes of action are premised solely on the alleged

4 violation of their state statutory speedy trial rights. Accordingly, Defendant‟s Motion to Dismiss

5 Plaintiffs‟ second and third causes of action is GRANTED. Plaintiffs will be given leave to

6 amend.

7

3. Fourteenth Amendment Claim – Denial of Prompt Bail Hearing

8

As discussed below, Plaintiffs‟ fourth cause of action, a Fourteenth Amendment procedural

9 due process claim predicated on the alleged denial of a prompt bail hearing, is dismissed with

10 leave to amend.

11

a. Background Law

United States District Court Northern District of California

12

i. Procedural Due Process

13

The procedural due process protections afforded by the Fourteenth Amendment are

14 described above.

15

ii. Asserted Right to a Prompt Bail Hearing

16

The Eighth Amendment states: “Excessive bail shall not be required, nor excessive fines

17 imposed, nor cruel and unusual punishments be inflicted.” U.S. Const. amend. VIII. The

18 California Constitution also supplies a right to bail, with exceptions for capital crimes and felony

19 offenses where certain conditions are met. Cal. Const. art. 1, § 12. To prevail on a claim that the

20 bail set for Plaintiffs violated the excessive bail clause of the Eighth Amendment, Plaintiffs must

21 demonstrate that their bail was enhanced for purposes unauthorized by California law or that the

22 amount of bail was excessive in light of the valid purposes for which it was set. Galen, 477 F.3d

23 at 661. California Penal Code § 1269b(c) provides in relevant part that: “It is the duty of the

24 superior court judges in each county to prepare, adopt, and annually revise a uniform countywide

25 schedule of bail for all bailable offenses…” Cal. Penal Code § 1269b(c). “If a defendant has

26 appeared before a judge of the court on the charge contained in the complaint, indictment, or

27 information, the bail shall be in the amount fixed by the judge at the time of the appearance. If

28 that appearance has not been made, the bail shall be in the amount fixed in the warrant for arrest

28

1 or, if no warrant for arrest has been issued, the amount of bail shall be pursuant to the uniform

2 countywide schedule of bail for the county in which the defendant is required to appear,

3 previously fixed and approved…” Cal. Penal Code § 1269b(b).

4

“California vests judicial officers with the exclusive authority to enhance or reduce bail.”

5 Galen, 477 F.3d at 663 (citing Cal. Penal Code § 1269c). § 1269c provides:

United States District Court Northern District of California

6

If a defendant is arrested without a warrant for a bailable felony offense or for the

7

misdemeanor offense of violating a domestic violence restraining order, and a peace

officer has reasonable cause to believe that the amount of bail set forth in the schedule of

8

bail for that offense is insufficient to ensure the protection of a victim, or family member

of a victim, of domestic violence, the peace officer shall prepare a declaration under

9

penalty of perjury setting forth the facts and circumstances in support of his or her belief

10

and file it with a magistrate, as defined in Section 808, or his or her commissioner, in the county in which the offense is alleged to have been committed or having personal

11

jurisdiction over the defendant, requesting an order setting higher bail. Except where a

defendant is charged with an offense listed in subdivision (a) of Section 1270.1, the

12

defendant, either personally or through his or her attorney, friend, or family member, also

may make application to the magistrate for release on bail lower than that provided in the

13

schedule of bail or on his or her own recognizance. The magistrate or commissioner to

14

whom the application is made is authorized to set bail in an amount that he or she deems sufficient to ensure the defendant‟s appearance or to ensure the protection of a victim, or

15

family member of a victim, of domestic violence, and to set bail on the terms and

conditions that he or she, in his or her discretion, deems appropriate, or he or she may

16

authorize the defendant‟s release on his or her own recognizance. If, after the application

is made, no order changing the amount of bail is issued within eight hours after booking,

17

the defendant shall be entitled to be released on posting the amount of bail set forth in the

18

applicable bail schedule.

19 Cal. Penal Code § 1269c. As to the offenses listed in § 1270.1, which are serious or violent

20 felonies, that section provides in relevant part:

21

(a) Except as provided in subdivision (e), before any person who is arrested for any of the

22

following crimes may be released on bail in an amount that is either more or less than the

amount contained in the schedule of bail for the offense, or may be released on his or her

23

own recognizance, a hearing shall be held in open court before the magistrate or judge…

(b) The prosecuting attorney and defense attorney shall be given a two-court-day written

24

notice and an opportunity to be heard on the matter. If the detained person does not have

counsel, the court shall appoint counsel for the purposes of this section only. The hearing

25

required by this section shall be held within the time period prescribed in Section 825.

26

27 Cal. Penal Code § 1270.1(a)-(b).

28

California judicial officers‟ exclusive authority to enhance or reduce bail is constrained in

29

1 that the judicial officer is required to take into consideration several factors. See Cal. Penal Code

2 §§ 1270.1(c); 1275. Addressing law enforcement personnel, the Ninth Circuit held: “Pursuant to

3 traditional tort law principles of causation, which we apply to § 1983 claims, … a judicial officer‟s

4 exercise of independent judgment in the course of his official duties is a superseding cause that

5 breaks the chain of causation linking law enforcement personnel to the officer‟s decision…”

6 Galen, 477 F.3d at 663 (internal citations omitted).

7

“When a person is detained in custody on a criminal charge prior to conviction for want

8 of bail, that person is entitled to an automatic review of the order fixing the amount of bail by the

9 judge or magistrate having jurisdiction of the offense. That review shall be held not later than five

10 days from the time of the original order fixing the amount of bail on the original accusatory

11 pleading. The defendant may waive this review.” Cal. Penal Code § 1270.2. Thereafter, “the

United States District Court Northern District of California

12 issue of appropriate bail may be raised at various times throughout the criminal proceedings.” In

13 re Weiner, 32 Cal.App.4th at 444, 38 Cal.Rptr.2d 172(citing Cal. Penal Code §§ 1269b, 1269c,

14 1273, 1277, 1476, 1538.5(k)).

15

b. Application to Facts

16

The basis for Plaintiffs‟ claim for denial of a prompt bail hearing is opaque. Plaintiffs have

17 not alleged when bail was set or that bail was not set, the amount of bail that was set, any facts

18 showing that the amount was excessive, the conclusion that the amount was excessive, or whether

19 they took any action to reduce the bail. It appears that Plaintiffs‟ theory is as follows: (1)

20 Defendant did not provide counsel at the first appearance; as a result (2) Defendant did not seek a

21 reduction in bail at the first appearance; and, as a further result (3) Plaintiffs were unable to seek a

22 reduction of bail until at least five to thirteen days later, when Defendant provided counsel at the

23 second appearance. This theory does not state a claim on which relief can be granted.

24

First, assuming Plaintiffs have pled a violation of federal law, Plaintiffs have not pled facts

25 that give rise to the plausible inference that Defendant‟s conduct caused them any harm. See

26 Galen, 477 F.3d at 663 (“we apply [traditional tort principles of causation] to § 1983 claims”).

27 That is, Plaintiffs have not pled that, if Defendant had (1) provided counsel at the first appearance;

28 and (2) sought a reduction in bail, Defendant would have obtained a reduction in bail such that

30

1 Plaintiffs would have been able to secure release.

2

Second, Plaintiffs have not pled a violation of the Eighth Amendment. That is, Plaintiffs

3 have not pled their bail was enhanced for purposes unauthorized by California law or that the

4 amount of bail was excessive in light of the valid purposes for which it was set. See id. at 661.

5

Third, Plaintiffs have not pled a violation of the due process clause of the Fourteenth

6 Amendment predicated on any interest provided by state law. In their briefing, Plaintiffs point

7 only to California Penal Code § 1270.1. They argue that § 1270.1 entitles them to a bail hearing,

8 with counsel that is appointed within 48 hours. Opposition, 20. Whether or not this

9 characterization is accurate, and whether or not Plaintiffs have pled facts sufficient to allege a

10 violation of the statute, California Penal Code § 1270.1 does not create a liberty interest that is

11 cognizable under the due process clause of the Fourteenth Amendment. Rather, the statute

United States District Court Northern District of California

12 concerns a hearing before which the arrestee, arrested for an enumerated offense, “may be released

13 on bail in an amount either more or less than the amount contained in the schedule of bail for the

14 offense, or may be released on his or her own recognizance.” See Cal. Penal Code § 1270.1. The

15 statute at issue is procedural, it mandates no substantive outcome. See Marsh, 680 F.3d at 1156;

16 Carver, 558 F.3d at 875.

17

Plaintiffs also argue that the right to a prompt bail hearing is protected directly by the due

18 process clause of the Fourteenth Amendment. Plaintiffs argue that “the loss of liberty occasioned

19 by excessive bail is a grievous loss entitling a defendant to 14th Amendment due process

20 protection.” Opposition, 19 (emphasis omitted). As noted above, Plaintiffs have not alleged that

21 any bail imposed was excessive. Nor have they cited authority holding that a delay of five to

22 thirteen days in a bail hearing would violate the Fourteenth Amendment. Plaintiffs‟ fourth cause

23 of action is DISMISSED with leave to amend.

24

C. Remaining State Law Claims

25

Under state law, Plaintiffs seek damages for an alleged violation of the California Unruh

26 Civil Rights Act and seek a writ of mandate to compel Defendant to comply with California

27 Government Code § 27706. See Cal. Civ. Code §§ 51 et seq., 52, 52.1; Cal. Gov. Code § 27706.

28 The Court has jurisdiction over this action on the basis of the federal questions raised by the

31

1 Complaint. See 28 U.S.C. § 1331. The Court‟s jurisdiction over the remaining state law claims

2 relies on its supplemental jurisdiction. See 28 U.S.C. § 1367(a). Having dismissed all claims over

3 which it has original jurisdiction, the court declines to exercise its supplemental jurisdiction over

4 the state law claims. See 28 U.S.C. § 1367(c)(3). Plaintiffs‟ fifth and sixth causes of action are

5 DISMISSED with leave to amend for lack of subject matter jurisdiction.

6 V. CONCLUSION

7

For the foregoing reasons, Plaintiffs‟ Complaint is dismissed with leave to amend.

8

IT IS SO ORDERED.

9 Dated: May 8, 2013

10

United States District Court Northern District of California

11 _________________________________

12

JOSEPH C. SPERO

13

United States Magistrate Judge

14

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 Case3:12-cv-06495-JCS Document55 Filed05/31/13 Page1 of 23

1 Christopher Martin (SBN 141469) Nationally Board Certified Criminal Trial Advocate
2 1160 Brickyard Cove Rd., Ste. 200 Pt. Richmond, CA. 94801
3 Telephone: (510) 439-4141 Facsimile: (510) 439-4150
4 email: chris@martindefenders.com

5 Michael Dietrick (SBN 92150) Attorney at Law
6 10 Keller St., Ste. 275 Petaluma, CA. 94952
7 Telephone: (707) 763-5019 Facsimile: (707) 763-5022
8 email: dietrick@pacbell.net

9 Attorneys for Plaintiffs John Farrow, Jerome Wade,
10 And all others similarly situated

11

12

IN THE UNITED STATES DISTRICT COURT

13 FOR THE NORTHERN DISTRICT OF CALIFORNIA
14

15 John Farrow, Jerome Wade, on their behalf, and on
16 behalf of all others similarly situated,

17

Plaintiffs,

18 vs.

19 Contra Costa County Public Defender Robin Lipetzky, in her official capacity, and DOES 1
20 through 20, et al.,

Case No. 3:12-cv-06495-JCS SECOND AMENDED COMPLAINT CLASS ACTION DEMAND FOR JURY TRIAL

21

Defendants.

22

23

24

25

26

27

28

1
SECOND AMENDED COMPLAINT

Case3:12-cv-06495-JCS Document55 Filed05/31/13 Page2 of 23

1

Plaintiffs hereby allege as follows:

2

INTRODUCTION

3 1. In Contra Costa County, prior to the filing of this lawsuit, which caused the county to
4

5

amend its practice, the county public defender, Defendant herein, arbitrarily withheld

6

legal representation to indigent, in-custody, criminal defendants in felony matters for a

7

period of 5 to 13 days after their initial Court appearance, and sometimes longer, as a

8 matter of policy.
9

10

2. Defendant still withholds legal representation to indigent, in-custody, criminal defendants

11

in misdemeanor matters for a period of between 5 and 13 days, and sometimes longer, as a

12

matter of policy.

13 3. Although Plaintiffs’ first court appearance under this policy is dubbed “arraignment,” no
14

15

plea is taken; bail is set without consideration of the favorable information counsel would

16

ordinarily provide to the Court regarding defendant’s circumstances; the case is referred to

17

the probation department for an evaluation and report concerning bail, which is based

18
entirely upon information provided by government sources; and counsel is not appointed, 19

20

as specifically and emphatically required by California law.1

21 4. Pursuant to Defendant’s policy, an in-custody, indigent criminal defendant’s request for

22

court-appointed counsel triggers a “referral to the Public Defender” and an automatic

23
continuance for “further arraignment.” 24

25

5. The automatic continuance is forced upon Plaintiffs regardless of whether a juvenile is

26

charged as an adult, whether it is a misdemeanor or felony complaint, whether the

27 28 1 Present tense is used in reference to both past felony policy and current misdemeanor policy.
2 Felony criminal defendants may also choose their speedy trial rights over their right to counsel, through 2
SECOND AMENDED COMPLAINT

Case3:12-cv-06495-JCS Document55 Filed05/31/13 Page3 of 23

1

criminal defendant suffers from a developmental disability or other infirmity, whether

2

evidence of misidentification requires immediate investigation before memories dim,

3 witnesses disappear, and video images are destroyed, or whether other exigent
4

5

circumstances exist.

6 6. Although the automatic continuance is customarily between 5 and 13 days – depending

7

upon the vagaries of where the case was filed within the county – Plaintiffs are never

8 informed of their statutory speedy trial rights prior to the imposition of this automatic
9

10

continuance – in direct violation of California law; and good cause for the continuance is

11

never provided as explicitly required by California Penal Code section 1050.

12

7. This policy thwarts the intent of the California legislature, expressed through California’s

13 statutory speedy trial scheme, which emphatically states the imperative that in custody
14

15

criminal defendants receive probable cause determinations, through a preliminary hearing,

16

at the earliest possible time due to the crucial liberty interest involved.

17

8. Defendant is on record stating that some criminal defendants in misdemeanor matters,

18
when faced with Defendant’s policy, forego counsel so that they can resolve their cases 19

20

without having to wait in jail until the public defender arrives. Thus, the public

21

defender’s policy directly assists the prosecution by imposing the cost of a 5 to 13 day jail

22

stay upon the right to counsel, causing many alleged misdemeanants to plead guilty, and

23 get out of jail, when they may be factually innocent or have viable legal defenses.2
24

25

9. In Rothgery v. Gillespie County Texas, 554 U.S. 191 (2008) the United States Supreme

26

Court stated that counties must provide counsel to indigent criminal defendants at their

27

28

2 Felony criminal defendants may also choose their speedy trial rights over their right to counsel, through Feretta v. California, 422 U.S. 806 (1975), although Defendant is not on record saying they do.

3
SECOND AMENDED COMPLAINT

Case3:12-cv-06495-JCS Document55 Filed05/31/13 Page4 of 23

1

initial court appearances or within a reasonable period of time thereafter in order to

2

provide time for counsel to prepare for “critical stages” of the proceedings. It did not

3 distinguish between those “critical stages” in which a 6th Amendment violation occurs if
4

5

counsel is not present, but prejudice to the underlying criminal action is not presumed and

6

the more stringent species of “critical stage” where per se reversal is required if counsel is

7

absent. “The standard applicable in the first instance is “any stage of a criminal

8 proceeding where substantial rights of a criminal accused may be affected,” while that
9

10

applicable in the second instance is whether the denial of counsel at a given stage holds

11

such “significant consequences” for the overall proceeding that a prejudice inquiry is

12

impractical.” (McNeal v. Adams, 623 F.3d 1283, 1290 (9th Cir. 2010)(Berzon, Circuit

13 Judge, Concurring.).) Plaintiffs’ first cause of action in this lawsuit is based upon the
14

15

former type of deprivation of counsel, due to the fact that in California, “Although the

16

arraignment is a critical stage of the proceeding entitling the defendant to an attorney, the

17

absence of an attorney at the arraignment is not such a grievous error that it compels a

18
reversal without a showing of prejudice.” (People v. Cox, 193 Cal.App.3d 1434, 1440 19

20

(1987).) And it is further based upon the fact that substantial rights are affected at

21

arraignment in California Courts.

22

10. Plaintiffs’ second and third causes of action for violation of the procedural and substantive

23 aspects of the Due Process Clause of the 14th Amendment, respectively, stem from the
24

25

fact that in the absence of counsel, Plaintiffs were systematically denied their fundamental

26

right to a “prompt” arraignment and were further barred from entering a plea at

27

arraignment, which would have triggered California’s statutory speedy trial rights as well

28

4
SECOND AMENDED COMPLAINT

Case3:12-cv-06495-JCS Document55 Filed05/31/13 Page5 of 23

1

as other protections. Plaintiffs assert that this knowing, systematic policy of inaction

2

amounted to a failure to protect constitutional rights as described in Oviatt by and through

3 Waugh v. Pearce, 954 F.2d 1470 (9th Cir. 1992).3 While Plaintiffs acknowledge that they
4

5

were later able to assert their speedy trial rights, they maintain that the protections

6

guaranteed by California’s speedy trial scheme had been drained of much of their worth

7

by that time due to the fact the arraignments in question were no longer “prompt” and the

8 preliminary hearings were no longer “speedy” as defined and intended by the California
9

10

legislature. Plaintiffs’ claims in this regard rely on Penal Code sections 825, 859b, and

11

1050, specifically, but not exclusively, and on the legislative intent expressed through

12

California’s entire statutory speedy trial scheme, taken as a whole, that preliminary

13 hearing and trial must take place at the earliest possible time.
14

15

11. Plaintiffs forth cause of action for denial of Equal Protection under the 14th Amendment

16

stems from the fact that indigent criminal defendants are denied representation for 5 to 13

17

days after their initial appearance in Court, due to Defendant’s policy, while criminal

18
defendants who can afford private counsel are furnished “prompt” arraignments, are 19

20

permitted to enter pleas at their first appearance in Court, are allowed to immediately

21

influence bail determinations with favorable information concerning their circumstances;

22

are able to influence the probation department with favorable information concerning bail

23
circumstances in the days following arraignment, are immediately able to apply for bail or 24

25

OR, are permitted to immediately assert their statutory speedy trial rights, and are able to

26

immediately begin preparation of their cases for future critical stages of the proceedings.

27

28

3 See also, Vermont v. Brillon, 129 S.Ct. 1283 (2009) [speedy trial rights may be triggered by a systematic breakdown in a public defender services].

5
SECOND AMENDED COMPLAINT

Case3:12-cv-06495-JCS Document55 Filed05/31/13 Page6 of 23

1 12. Under California law there is no remedy, in the criminal context, for Defendant’s policy

2

of systematically forcing indigent criminal defendants to elect between their statutory

3 speedy trial rights and their right to counsel because the absence of counsel at
4

5

arraignment, while a violation of the 6th Amendment, is harmless error. California Civil

6

Code section 52.1, however, provides Plaintiffs with a remedy for the Public Defender’s

7

forcible interference with their statutory rights.

8 13. Additionally, this policy forces in-custody, misdemeanor defendants to give up their
9

10

statutory right to an immediate probable cause hearing and forces those eligible for

11

diversion pursuant to Penal Code section 1000 to wait in jail for an additional 5 to 13 days

12

until appointed counsel can advocate for their release under the terms of the statute.

13 14. Plaintiffs in this action are all clients of the Contra Costa County Public Defender, the
14

15

Contra Costa County Alternative Public Defender’s Office, and private conflicts-counsel,

16

who are, have, or will languish in jail due to the Public Defender’s policy of deliberate

17

indifference.

18
15. Plaintiffs seek nominal and statutory damages for the criminal defendants affected by the 19

20

Public Defender’s policy of deliberate indifference to the constitutional and statutory

21

rights of the vary people she is obligated to defend.

22

16. Plaintiffs also seek injunctive relief, requiring the Public Defender to appear at

23
arraignment, in compliance with Rothgery v. Gillespie County Texas, 554 U.S. 191 (2008) 24

25

and California Government Code section 27706, which states that the Public Defender

26

“shall” represent defendants at “all stages of the proceedings.”

27

17. Plaintiffs further seek declaratory relief, declaring the Public Defender’s policy of non-

28

6
SECOND AMENDED COMPLAINT

Case3:12-cv-06495-JCS Document55 Filed05/31/13 Page7 of 23

1

representation illegal.

2

JURISIDICTION AND VENUE

3 18. This Court has jurisdiction of this action pursuant to 28 U.S.C. § 1343(3) for claims
4

5

brought under 42 U.S.C. § 1983, and pursuant to 28 U.S.C. §1331 generally. Venue is

6

proper pursuant to 28 U.S.C. Section 1391(b).

7

19. This is an action for declaratory and injunctive relief pursuant to 28 U.S.C. Sections 2201

8 and 2202 and the equitable and inherent powers of this Court.
9

10

20. Under 28 U.S.C. § 1367(a) the Court has supplemental jurisdiction over the state claims

11

alleged herein. The amount in controversy is over $25,000.00 (Twenty-five thousand

12

dollars).

13 21. Plaintiffs seek a temporary restraining order compelling the Public Defender, or a
14

15

designee, to appear in court and represent all current and future clients from the time of

16

their first appearance in court or a reasonable time thereafter. Plaintiffs further seek

17

preliminary and permanent injunctive relief compelling the Public Defender, or a

18
designee, to appear in court and represent all current and future clients from the time of 19

20

their first appearance in court or a reasonable time thereafter. Plaintiffs further seek

21

declaratory relief declaring the Public Defender in violation of her constitutional duties,

22

and her legislative mandate pursuant to California Government Code section 27706.

23
22. This case arises under the Sixth and Fourteenth Amendments to the United States 24

25

Constitution, 42 U.S.C. section 1983, Article I, sections 12 and 13 of the California

26

Constitution, California Code of Civil Procedure sections 1085 and1086, California

27

Government Code section 27706, California Civil Code section 52.1(b), and all California

28

7
SECOND AMENDED COMPLAINT

Case3:12-cv-06495-JCS Document55 Filed05/31/13 Page8 of 23

1

Penal Code sections pertaining to arraignment, appointment of counsel, and speedy trial

2

rights.

3

4

PARTIES

5 23. Defendant Robin Lipetzky is the duly appointed public defender of Contra Costa County.

6

She is vested by law with the responsibility of representing all indigent defendants at all

7

stages of criminal proceedings pursuant to California Government Code section 27706.

8 Defendant Lipetzky at all times acted in the course and scope of her employment and
9

10

under color of law. She is sued in her official capacity.

11 24. Plaintiffs John Farrow, Jerome Wade, and all those similarly situated, are, and at all

12

material times herein, were citizen of the United States and residents of the state of

13 California who were indigent criminal defendants, arraigned, in custody, and without
14

15

counsel, in Contra Costa County within the two (2) years before the filing of this

16

Complaint. All asked for court-appointed counsel at arraignment; none were informed of

17

their right to a prompt arraignment; none were advised of their statutory speedy trial

18
rights; and none waived their statutory speedy trial rights; all had bail set without 19

20

consideration of favorable information concerning bail that only counsel could provide;

21

all remained in custody without counsel for 5 to 13 days, or longer, after their first Court

22

appearance; all were forced to elect between their right to counsel and their speedy trial

23
rights; all were referred to the county probation department for bail studies and reports, 24

25

which were conducted between their first and second Court appearances – reports which

26

referenced all facts favorable to the prosecution, and which omitted all favorable

27

information concerning Plaintiffs’ ties to the community, etc., because such information

28

8
SECOND AMENDED COMPLAINT

Case3:12-cv-06495-JCS Document55 Filed05/31/13 Page9 of 23

1

could not be obtained without counsel; and, all were prejudiced by the deprivation of their

2

rights under the United States Constitution, the California Constitution, and the laws of

3 the state of California, enabling them to state a cause of action under 42 U.S.C. 1983 for
4

5

nominal damages and injunctive relief as described in Carey v. Piphus, 435 U.S. 247

6

(1978).

7

STATEMENT OF FACTS

8 25. This action satisfies all of the requirements of Rule 23(a), (b)(1) and (2) of the Federal
9

10

Rules of Civil Procedure.

11 26. Within six (6) months John Farrow, Plaintiff, filed a group Government Tort Claim for

12

himself and for all persons similarly situated. Plaintiff’s group claim was denied on or

13 about July 24, 2012, allowing the filing of this class action complaint on state statute and
14

15

constitutional violations.

16 27. Within six (6) months Jerome Wade, Plaintiff, filed a group Government Tort Claim for

17

himself and for all persons similarly situated. On timeliness grounds, Plaintiff's group

18
claim was denied on or about October 17, 2012. The county later acknowledged timely 19

20

filing due to Mr. Wade’s juvenile status and denied the claim on the merits on February

21

26, 2013.

22

28. Mr. Farrow was arrested on August 30, 2011.

23
29. Mr. Farrow appeared alone in Court for his arraignment on September 2, 2011. 24

25

30. The Court asked him if he could afford counsel, and he replied that he could not. The

26

Court then asked if he wanted the court to appoint counsel, and Mr. Farrow said that he

27

did. The court set bail, then “referred the matter to the Public Defender,” and continued

28

9
SECOND AMENDED COMPLAINT

Case3:12-cv-06495-JCS Document55 Filed05/31/13 Page10 of 23

1

the matter to September 15 for “further arraignment,” without advising Mr. Farrow of his

2

right to a prompt arraignment, his right to bail, or his right to a speedy preliminary hearing

3 and trial. Mr. Farrow, through this action, was forced to exchange his right to a prompt
4

5

arraignment and his speedy trial rights for his right to counsel. Mr. Farrow languished in

6

jail, without meaningful examination of bail or the protection of statutory speedy trial

7

rights or legal representation, for the next 13 days.

8 31. At his “arraignment” on September 2, 2011 the Court also referred the matter to the
9

10

probation department for a bail study, which was conducted during the time between Mr.

11

Farrow’s first and second Court appearances. This highly influential report contained no

12

favorable information concerning Mr. Farrow’s circumstances because there was no

13 means for the probation department to determine Mr. Farrow’s ties to the community, job
14

15

status, etc. in the absence of counsel who could supply such information. The report,

16

however, did include the police report and every negative fact on record related to him.

17

32. At the “further arraignment,” on September 15, 16 days after his arrest, and 13 days after

18
his first appearance in Court, counsel was appointed pursuant to the Public Defender's 19

20

policy, and Mr. Farrow was permitted to enter a plea.

21 33. Mr. Farrow immediately asserted his right to a speedy preliminary hearing, and his

22

preliminary hearing was held on September 27, 2011.

23
34. Mr. Farrow’s counsel had 13 less days than the prosecutor, after Mr. Farrow’s first court 24

25

appearance, to prepare for the preliminary hearing.

26 35. Mr. Wade, who was 17 years old, was arrested at his high school on November 8, 2011.

27

36. Mr. Wade appeared in Court alone for his arraignment on November 14, 2011.

28

10
SECOND AMENDED COMPLAINT

Case3:12-cv-06495-JCS Document55 Filed05/31/13 Page11 of 23

1 37. Mr. Wade was held illegally for four days due to the fact that he was not arraigned in any

2

fashion until the 6th day after his arrest, in blatant violation of Penal Code section 825.

3

Mr. Wade did not know that this was a violation of his rights, and the police reports did 4

5

not reference the error. His second arraignment also had been adjusted to fall within the

6

window created by Defendant’s policy, as opposed to beyond it, which effectively masked

7

the error because there was no way of discovering the violation without examining the

8 minute orders in the case.
9

10

38. The county prosecutor appeared at Mr. Wade’s first Court appearance on November 14,

11

2011, making this an adversarial encounter.

12

39. At his arraignment on November 14, 2011, the Court set bail, and asked Mr. Wade if he

13 could afford counsel, and he replied that he could not. The Court then asked if he wanted
14

15

the court to appoint counsel, and Mr. Wade said that he did. The court then “referred the

16

matter to the Public Defender,” and continued the matter to November 21 for “further

17

arraignment,” without advising Mr. Wade of his right to bail, his right to a prompt

18
arraignment or his right to a speedy preliminary hearing and trial. Mr. Wade, through this 19

20

action, was forced to exchange his speedy trial rights for his right to counsel. Mr. Wade

21

languished in jail, without examination of bail or the protection of statutory speedy trial

22

rights or legal representation, for the next 7 days.

23
40. At his “arraignment” on November 14, 2011 the Court also referred the matter to the 24

25

probation department for a bail study. This highly influential report contained no

26

favorable information concerning Mr. Wade’s circumstances because there was no means

27

28

11
SECOND AMENDED COMPLAINT

Case3:12-cv-06495-JCS Document55 Filed05/31/13 Page12 of 23

1

for the probation department to determine Mr. Wade’s ties to the community, school

2

status, etc. in the absence of counsel who could furnish such information.

3 41. The original complaint, which was filed on November 10, 2011, four days before Mr.
4

5

Wade’s first appearance in Court, contained 10 counts and enhancements in an 11-page

6

document.

7

42. Police investigation was ongoing through the period between Mr. Wade’s first and second

8 Court appearance, and the district attorney was also hard at work on the case during this
9

10

period.

11 43. On November 18, 2011, during the period between Mr. Wade’s first and second

12

appearance in Court, the district attorney filed an amended complaint adding 15 new

13 charges and enhancements in a 53 page document, thereby increasing Mr. Wade’s
14

15

exposure several fold. The district attorney was able to do this, as a matter of right,

16

without leave of the Court, pursuant to the express terms of Penal Code section 1009, only

17

due to the fact that no plea had been entered at Mr. Wade’s first appearance as the result

18
of Defendant’s policy. 19

20

44. At the “further arraignment,” on November 21, 2011, 13 days after his arrest, and 7 days

21

after his first appearance in Court, as a juvenile charged as an adult, counsel was

22

appointed.

23
45. Counsel immediately started review of approximately 600 pages of discovery and 24

25

eventually became aware that there was a serious Miranda issue in the case. Considering

26

that Mr. Wade had been interrogated in front of his high school principal, counsel

27

obtained an investigative authorization, and dispatched an investigator to the high school

28

12
SECOND AMENDED COMPLAINT

Case3:12-cv-06495-JCS Document55 Filed05/31/13 Page13 of 23

1

to interview the principal about the interrogation. The investigator interviewed the high

2

school principal on November 28, 2011, and she maintained that she could not remember

3 when or how Mr. Wade was Mirandized during the encounter due to failure of memory.
4

5

Had appointment of counsel not been delayed due to Defendant’s policy it is possible that

6

the high school principal would have remembered the details of Mr. Wade’s interrogation

7

which may have been helpful in his defense.

8 CLASS CLAIMS
9

10

46. The deprivation of counsel that Plaintiffs were subjected to, along with all those similarly

11

situated, and the inevitable denial of statutory speedy trial rights ensuing from the Public

12

Defender’s deliberate indifference, were performed pursuant to policies, practices, and

13 customs of defendant Contra Costa County Public Defender, Robin Lipetzky, acting under
14

15

color of law.

16 47. Plaintiffs bring this action on their own behalf, and on behalf of all persons similarly

17

situated, pursuant to Rule 23, Federal Rules of Civil Procedure.

18
48. The class is defined to include all persons who, in the period from and including two (2) 19

20

years prior to the filing of the original Complaint on December 21, 2012, and continuing

21

until this matter is adjudicated and the practices complained herein cease, were subjected

22

to the deprivation of counsel at their first court appearance and were forced to continue

23
their cases for 5 days or more for appointment of counsel, pursuant to the Public 24

25

Defender's written policy.

26 49. In accordance with Federal Rules of Civil Procedure, Rule 23(a), the members of the class

27

are so numerous that joinder of all members is impractical. Plaintiffs do not know the

28

13
SECOND AMENDED COMPLAINT

Case3:12-cv-06495-JCS Document55 Filed05/31/13 Page14 of 23

1

exact number of class members but Plaintiffs are informed and believe, and thereupon

2

allege, that the number of individually named Plaintiffs together with CLASS MEMBERS

3 exceeds 1000.
4

5 50. In accordance with Federal Rules of Civil Procedure, Rule 23(a), Plaintiffs are informed

6

and believe, and thereupon allege, that there are many questions of fact common to the

7

class including, but not limited to whether:

8 (1) All Plaintiffs were indigent, in-custody criminal defendants in Contra Costa
9

10

County;

11

(2) All Plaintiffs asked for appointment of the Public Defender;

12

(3) All Plaintiffs suffered an automatic continuance of between 5 and 13 days as

13 a direct consequence of asserting their right to appointed counsel;
14

15

(4) All Plaintiffs were forced to continue their cases without advisement of their

16

statutory speedy trial rights.

17

(5) All Plaintiffs were deprived of counsel for a period of between 5 and 13

18
days after their initial arraignment; 19

20

(6) All Plaintiffs were deprived of their right to a prompt arraignment.

21

(7) All Plaintiffs were deprived of said rights due to the policy of the Public

22

Defender.

23
(8) The Public Defender maintains records concerning the relevant facts with 24

25

regard to each Plaintiff.

26 51. The Public Defender knew that the actions alleged herein violated state and federal law

27

when she committed said actions.

28

14
SECOND AMENDED COMPLAINT

Case3:12-cv-06495-JCS Document55 Filed05/31/13 Page15 of 23

1 52. In accordance with Federal Rules of Civil Procedure, Rule 23(a), Plaintiffs are informed

2

and believe, and thereupon allege, that there are many questions of law common to the

3 class including whether:
4

5

(1) A forced 5 to 13 day delay between an indigent in-custody defendant's

6

first appearance in court, arraignment, and representation by the Public

7

Defender, or her proxy, is unreasonable under the 6th Amendment to the

8 United States Constitution when arraignment is a critical stage of the
9

10

proceedings under California law;

11

(2) Indigent criminal defendants who have been denied counsel at critical stages

12

also need to prove that they were prejudiced by the denial in question in

13 order to state a civil claim against the county responsible for the deprivation
14

15

of counsel;

16

(3) If they must show prejudice in addition to deprivation of counsel at a critical

17

stage, what quantum of prejudice must they show;

18
(4) A forced 5 to 13 day delay between an indigent in custody defendant's 19

20

first appearance in court, arraignment, and representation by the Public

21

Defender, or her proxy, violates a defendant's federal and state rights to a

22

prompt arraignment.

23
(5) A forced 5 to 13 day delay between an indigent in custody defendant's 24

25

first appearance in court and representation by the Public Defender, or her

26

proxy, as a policy of inaction violates a defendant's statutory speedy trial

27

rights;

28

15
SECOND AMENDED COMPLAINT

Case3:12-cv-06495-JCS Document55 Filed05/31/13 Page16 of 23

1

(6) A forced 5 to 13 day delay between an indigent in custody defendant's

2

first appearance in court and representation by the Public Defender, or her

3 proxy, violates California's Bane Civil Rights Act (Civil Code §§ 52 and
4

5

52.1) when that delay forces them to elect between their right to counsel,

6

their statutory speedy trial rights, and other rights counsel must assert;

7

(7) Whether a forced 5 to 13 delay between an indigent, in custody defendant’s

8 first appearance in Court and representation by the Public Defender, or her
9

10

proxy, violates the equal protection clause of the 14th Amendment given that

11

criminal defendants who can afford private counsel have the full benefit of

12

the rights furnished at arraignment while those who cannot afford counsel

13 are denied certain rights and receive other marginalized rights without any
14

15

justification.

16

(8) Whether California Government Code section 27706, which states that the

17

Public Defender shall represent indigent defendants at all stages of the

18
proceedings, contemplates representation at the first half of Contra Costa 19

20

County's bifurcated arraignment proceedings.

21 53. Plaintiffs are informed and believe, and thereupon allege, that most members of the class

22

will not be able to find counsel to represent them. Plaintiffs are informed and believe, and

23
thereupon allege, that it is desirable to concentrate all litigation in one forum because all 24

25

of the claims arise in the same location; i.e., Contra Costa County. It will promote

26

efficiency to resolve the common questions of law and fact in one forum, rather than in

27

multiple courts.

28

16
SECOND AMENDED COMPLAINT

Case3:12-cv-06495-JCS Document55 Filed05/31/13 Page17 of 23

1 54. Plaintiffs do not know the identities of all the class members. Plaintiffs are informed and

2

believe, and thereupon allege, that the identities of the class members may be ascertained

3 from records maintained by the Contra Costa County Public Defender. Plaintiffs are
4

5

informed and believe, and thereupon allege, that defendant’s records reflect the identities,

6

including addresses and telephone numbers, of the defendants whose rights have been

7

transgressed as the result of the Public Defender’s policy of deliberate indifference.

8 Plaintiffs are informed and believe, and thereupon allege, that the Contra Costa County
9

10

Public Defender maintains records of when each defendant initially appeared in Court and

11

the duration of his incarceration without counsel. Plaintiffs are informed and believe, and

12

thereupon allege, that all of the foregoing information is contained in defendant’s

13 computer system and that the information necessary to identify the class members, by last
14

15

known addresses, and the dates of their respective initial appearance and appointment of

16

counsel is readily available from said computer system.

17

55. In accordance with Federal Rules of Civil Procedure, Rule 23(b)(3), class members must

18
be furnished with the best notice practicable under the circumstances, including individual 19

20

notice to all members who can be identified through reasonable effort. Plaintiffs are

21

informed and believe, and thereupon allege, that defendant’s computer records contain a

22

last known address for class members. Plaintiffs contemplate that individual notice will

23
be given to class members at such last known address by first class mail. Plaintiffs 24

25

contemplate that notice will inform class members of the following:

26

i. The pendency of the class action and the issues common to the class;

27

ii. The nature of the class action;

28

17
SECOND AMENDED COMPLAINT

Case3:12-cv-06495-JCS Document55 Filed05/31/13 Page18 of 23

1

iii. The right to “opt out” of the action within a given time, in which event they

2

will not be bound by a decision rendered in the class action;

3 iv. Their right, if they do “opt out,” to be represented by their own counsel and
4

5

to enter an appearance in the case; otherwise they will be represented by the

6

named class Plaintiff(s) and the named class Plaintiff(s)’s counsel; and

7

v. Their right, if they do not “opt out,” to share in any recovery in favor of the

8 class, and conversely to be bound by any judgment on the common issues
9

10

adverse to the class.

11

FIRST CAUSE OF ACTION

12

(Violation of Sixth Amendment to the U.S. Constitution 42 U.S.C. § 1983)

13 56. Plaintiffs reallege and incorporate herein, as if stated in full, each and every of the
14

15

allegations contained in paragraphs 1 through 55, inclusive.

16 57. Defendant’s policies, practices, and customs regarding the failure to represent Plaintiffs at

17

their first appearance, or a reasonable time thereafter, violated the rights of Plaintiffs, and

18
all those similarly situated, under color of law, pursuant the Sixth Amendment right to the 19

20

assistance of court-appointed counsel, and directly and proximately damaged Plaintiffs,

21

and all those similarly situated, as herein alleged, entitling Plaintiffs, and all class

22

members, to recover nominal damages for said constitutional violations pursuant to 42

23
U.S.C. § 1983 and Carey v. Piphus, 435 U.S. 247 (1978). 24

25

58. WHEREFORE, Plaintiffs pray for relief, for themselves and for all persons similarly

26

situated, as hereunder appears.

27

28

18
SECOND AMENDED COMPLAINT

Case3:12-cv-06495-JCS Document55 Filed05/31/13 Page19 of 23

1

SECOND CAUSE OF ACTION

2

(Violation of the 14th Amendment to the U.S. Constitution – substantive due process

3

with respect to statutory speedy trial rights)

4

59. Plaintiffs reallege and incorporate herein, as if stated in full, each and every of the

5 allegations contained in paragraphs 1 through 58, inclusive.
6

7

60. Defendant’s policies, practices, and customs regarding the failure to represent Plaintiffs,

8

and all those similarly situated, at their first appearance, or a reasonable time thereafter,

9

violated the rights of Plaintiffs, under color of law, pursuant to the 14th Amendment due

10 process clause in that the defendant’s deliberate indifference resulted in the denial of

11

12

statutory speedy trial rights, without a hearing to determine the cause and reasonableness

13

of the denial, and directly and proximately damaged Plaintiffs, and all those similarly

14

situated, as herein alleged, entitling Plaintiffs, and all class members, to recover nominal

15 damages for said constitutional violations pursuant to 42 U.S.C. § 1983 and Carey v.
16
Piphus, 435 U.S. 247 (1978). 17

18 61. WHEREFORE, Plaintiffs pray for relief, for themselves and for all persons similarly

19

situated, as hereunder appears.

20 THIRD CAUSE OF ACTION

21

(Violation of the 14th Amendment to the U.S. Constitution

22

on behalf of Plaintiffs and all persons similarly situated – procedural due process

23

with respect to statutory speedy trial rights)

24

62. Plaintiffs reallege and incorporate herein, as if stated in full, each and every of the

25 allegations contained in paragraphs 1 through 61, inclusive.
26 63. Defendant’s policies, practices, and customs regarding the failure to represent Plaintiffs,
27

28

and all those similarly situated, at their first appearance, or a reasonable time thereafter,

19
SECOND AMENDED COMPLAINT

Case3:12-cv-06495-JCS Document55 Filed05/31/13 Page20 of 23

1

violated the rights of Plaintiffs, under color of law, pursuant to the 14th Amendment due

2

process clause in that the defendant’s deliberate indifference resulted in the denial of

3 statutory speedy trial rights, without a hearing to determine the cause and reasonableness
4

5

of the denial, and directly and proximately damaged Plaintiffs, and all those similarly

6

situated, as herein alleged, entitling Plaintiffs, and all class members, to recover nominal

7

damages for said constitutional violations pursuant to 42 U.S.C. § 1983 and Carey v.

8 Piphus, 435 U.S. 247 (1978).
9

10

64. WHEREFORE, Plaintiffs pray for relief, for themselves and for all persons similarly

11

situated, as hereunder appears.

12

FOURTH CAUSE OF ACTION

13 (Violation of the equal protection clause of the 14th Amendment to the U.S. Constitution)
14

15

65. Plaintiffs reallege and incorporate herein, as if stated in full, each and every of the

16

allegations contained in paragraphs 1 through 64, inclusive.

17

66. Defendant’s policies, practices, and customs regarding the failure to represent Plaintiffs at

18
their first appearance, or a reasonable time thereafter, violated the equal protection rights 19

20

of Plaintiffs, and all those similarly situated, under color of law, pursuant to the equal

21

protection clause of the 14th Amendment in that Defendant’s policy directly denied

22

Plaintiffs’ right to a prompt arraignment, Plaintiffs’ right to assistance of counsel, and

23
Plaintiff’s statutory speedy trial rights on the basis of their indigence, when similarly 24

25

situated criminal defendant’s who could afford private counsel were furnished “prompt”

26

arraignments, were permitted to enter pleas at their first appearance in Court, were

27

allowed to influence the probation department with favorable information concerning bail

28

20
SECOND AMENDED COMPLAINT

Case3:12-cv-06495-JCS Document55 Filed05/31/13 Page21 of 23

1

circumstances in the days following arraignment, were immediately able to apply for bail

2

or OR, were permitted to immediately assert their statutory speedy trial rights, and were

3 able to immediately begin preparation of their cases for future critical stages of the
4

5

proceedings. Defendant therefore directly and proximately damaged Plaintiffs, and all

6

those similarly situated, as herein alleged, entitling Plaintiffs, and all class members, to

7

recover nominal damages for said constitutional violations pursuant to 42 U.S.C. § 1983

8 and Carey v. Piphus, 435 U.S. 247 (1978).
9

10

67. WHEREFORE, Plaintiffs pray for relief, for themselves and for all persons similarly

11

situated, as hereunder appears.

12

FIFTH CAUSE OF ACTION

13

(California State Civil Rights Act, Civil Code §§ 52 and 52.1,

14

on behalf of Plaintiffs and all persons similarly situated –

15

denial of statutory speedy trial rights)

16 68. Plaintiffs reallege and incorporate herein, as if stated in full, each and every of the

17

allegations contained in paragraphs 1 through 67, inclusive.

18
69. Defendant’s policies, practices, and customs regarding failure to represent Plaintiffs at 19

20

their first court appearance, or within a reasonable time thereafter, complained herein

21

violated the rights of Plaintiffs, and all those similarly situated, by forcing Plaintiffs to

22

sacrifice their statutory speedy trial rights as a precondition to appointment of counsel,

23
and directly and proximately damaged Plaintiffs, and each of those similarly situated, as 24

25

herein alleged, entitling said Plaintiffs, and each of those they represent, to recover a

26

minimum of $4000.00 each pursuant to California Civil Code § 52.1 and § 52.

27

28

21
SECOND AMENDED COMPLAINT

Case3:12-cv-06495-JCS Document55 Filed05/31/13 Page22 of 23

1 70. WHEREFORE, Plaintiffs pray for relief, for themselves and for all persons similarly

2

situated, as hereunder appears.

3

4

SIXTH CAUSE OF ACTION

5

(California Code of Civil Procedure §§ 1085 and 1086 – writ of mandate to enforce

California Government Code § 27706)

6

71. Plaintiffs reallege and incorporate herein, as if stated in full, each and every of the 7

8

allegations contained in paragraphs 1 through 70, inclusive.

9 72. Defendant’s policies, practices and customs violate California Government Code § 27706,

10

which states that the public defender shall represent criminal defendants at all stages of

11 the proceedings. Plaintiffs are directly damaged as the result of said policies, practices
12

13

and customs, and request a writ of mandate, compelling the Public Defender to comply

14

with her statutory obligation to represent all indigent, in custody defendants by appearing

15

at the first appearance of all indigent, in-custody criminal defendants, or at a reasonable

16 time thereafter.
17

18

73. WHEREFORE, Plaintiffs pray for relief, for themselves and for all persons similarly

19

situated, as hereunder appears.

20

PRAYER FOR RELIEF

21

22

74. WHEREFORE, Plaintiffs, on behalf of themselves and all those similarly situated, seek

23

judgment as follows:

24
1. For declaratory and injunctive relief declaring illegal and enjoining, preliminarily and 25

26

permanently, defendant's policies, practices, and customs of unlawfully withholding

27

representation from indigent, in-custody defendants from 5 to 13 days after their initial

28

appearance.

22
SECOND AMENDED COMPLAINT

Case3:12-cv-06495-JCS Document55 Filed05/31/13 Page23 of 23

1 2. Certification as a class action of Plaintiffs’ complaints concerning defendants’ policies,

2

practice, and customs of withholding representation from indigent, in-custody defendants

3 from 5 to 13 days after their initial appearance.
4

5 3. For nominal damages per Carey v. Piphus, 435 U.S. 247 (1978).

6 4. For at least $4000 for each Plaintiff pursuant to California Civil Code § 52.1 and § 52, for

7

each violation thereof;

8 5. Attorneys’ fees and costs under 42 U.S.C. § 1988, California Civil Code § 52(b)(3),
9

10

California Civil Code § 52.1(h), and California Code of Civil Procedure § 1021.5.

11 6. The cost of this suit and such other relief as the court finds just and proper.

12

A JURY TRIAL IS DEMANDED.

13

14 15 Dated: 16 17 18

Christopher Martin Attorney at Law
Michael Dietrick Attorney at Law

19

20

By:

Christopher Martin

21

22

Attorneys for Plaintiffs

23

24

25

26

27

28

23
SECOND AMENDED COMPLAINT

 
 CCaassee:31:132-1-c6v7-8016,40915/-0J8C/S201D6o, cIDum: 9e8n2t080182F, DilekdtE0n1t/r1y3: /4156-1,PPaaggee11ooff66

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FILED

FOR THE NINTH CIRCUIT

JAN 08 2016

JOHN FARROW and JEROME WADE, on their behalf, and on behalf of others similarly situated,

No. 13-16781

MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

D.C. No. 3:12-cv-06495-JCS

Plaintiffs - Appellants, v.

MEMORANDUM*

ROBIN LIPETZKY, Contra Costa County Public Defender,

Defendant - Appellee.

Appeal from the United States District Court for the Northern District of California
Joseph C. Spero, Magistrate Judge, Presiding
Argued and Submitted December 7, 2015 San Francisco, California
Before: WARDLAW, W. FLETCHER, and MURGUIA, Circuit Judges.
John Farrow and Jerome Wade appeal the district court’s grant of Robin
Lipetzky’s motion to dismiss their putative class-action complaint. Plaintiffs
allege that defendant “arbitrarily withheld legal representation to indigent, in-
* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

CCaassee:31:132-1-c6v7-8016,40915/-0J8C/S201D6o, cIDum: 9e8n2t080182F, DilekdtE0n1t/r1y3: /4156-1,PPaaggee22ooff66
custody, criminal defendants in felony [and misdemeanor] matters for a period of 5 to 13 days after their initial Court appearance, and sometimes longer, as a matter of policy,” thereby violating their constitutional rights to counsel, due process, and equal protection. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm in part, reverse in part, and remand for further consideration.1
1. The district court did not err in dismissing plaintiffs’ due process claims. “[S]tate statutes may create liberty interests that are entitled to the procedural protections of the Due Process Clause of the Fourteenth Amendment.” Carlo v. City of Chino, 105 F.3d 493, 497 (9th Cir. 1997) (citation omitted). Plaintiffs rely on California Penal Code § 859b, which provides that a defendant is entitled to a preliminary examination “within 10 court days of the date the defendant is arraigned or pleads, whichever occurs later.” However, the complaint alleges that Lipetzky delayed plaintiffs’ arraignments and pleas, not that the preliminary examination occurred more than 10 days later. Without an underlying violation of
1 Lipetzky argues that because Wade declined to file a third amended complaint, his claims were dismissed for failure to comply with a court order under Federal Rule of Civil Procedure 41 rather than for failure to state a claim under Rule 12(b)(6). However, the district court never invoked Rule 41 in dismissing the complaint. Instead, the court relied on Rule 12(b)(6), “permitted” Wade “one more opportunity to amend” his Sixth Amendment claim, and closed the case when Wade’s time to do so expired. We therefore treat the dismissal of both Farrow’s and Wade’s claims as pursuant to Rule 12(b)(6).
2

CCaassee:31:132-1-c6v7-8016,40915/-0J8C/S201D6o, cIDum: 9e8n2t080182F, DilekdtE0n1t/r1y3: /4156-1,PPaaggee33ooff66
California’s speedy trial scheme, plaintiffs have not adequately pleaded a due process claim.
2. Nor did the district court err in dismissing plaintiffs’ equal protection claim. That the assistance of counsel at the initial appearance “might be of benefit to an indigent defendant does not mean that the service is constitutionally required.” Ross v. Moffitt, 417 U.S. 600, 616 (1974). Because indigent defendants in Contra Costa County retain “an adequate opportunity to present their claims fairly within the adversary system,” Lipetzky’s policy does not violate the Equal Protection Clause. Id. at 612; see also Halbert v. Michigan, 545 U.S. 605, 610–11 (2005); Johnson v. Oklahoma, 484 U.S. 878, 879–80 (1987).
3. The district court did err in dismissing plaintiffs’ Sixth Amendment claim. The Sixth Amendment requires that counsel “be appointed within a reasonable time after attachment to allow for adequate representation at any critical stage before trial, as well as at trial itself.” Rothgery v. Gillespie County, 554 U.S. 191, 212 (2008). The complaint alleges that Lipetzky deprived Wade of counsel for seven days after his initial appearance, deprived Farrow of counsel for thirteen days after his initial appearance, and sometimes withheld counsel from indigent defendants for periods exceeding thirteen days.
3

CCaassee:31:132-1-c6v7-8016,40915/-0J8C/S201D6o, cIDum: 9e8n2t080182F, DilekdtE0n1t/r1y3: /4156-1,PPaaggee44ooff66
The right to counsel “attache[d] at the [defendant’s] initial appearance,” when “the magistrate inform[ed] the defendant of the charge[s]” against him and “determine[d] the conditions for pretrial release.” Rothgery, 554 U.S. at 199 (citation omitted). However, the “question whether [an initial appearance] signals the initiation of adversary judicial proceedings . . . is distinct from the question whether the [initial appearance] itself is a critical stage requiring the presence of counsel.” Id. at 212 (omission in original) (quoting Michigan v. Jackson, 475 U.S. 625, 630 n.3 (1986)). On the facts alleged in the complaint, the initial appearance was not a critical stage. See Gerstein v. Pugh, 420 U.S. 103, 122–23 (1975); United States v. Perez, 776 F.2d 797, 800 (9th Cir. 1985), overruled on other grounds by United States v. Cabaccang, 332 F.3d 622 (9th Cir. 2003). The hearing did not “test[] the merits of the accused’s case”; “skilled counsel” was not necessary to “help[] the accused understand” the proceedings; and there was no risk that an uncounseled defendant would permanently forfeit “significant rights.” United States v. Benford, 574 F.3d 1228, 1232 (9th Cir. 2009) (citation omitted). Nor did the preliminary bail determination made at the initial appearance render that hearing a critical stage. See Rothgery, 554 U.S. at 195, 212; Gerstein, 420 U.S. at 120–23.
4

CCaassee:31:132-1-c6v7-8016,40915/-0J8C/S201D6o, cIDum: 9e8n2t080182F, DilekdtE0n1t/r1y3: /4156-1,PPaaggee55ooff66
The “further arraignment,” by contrast, was plainly a critical stage because the plaintiffs entered pleas at that hearing. See White v. Maryland, 373 U.S. 59, 60 (1963). It is undisputed that the plaintiffs were therefore entitled to—and received—legal representation at their “further arraignments.”
The remaining question is whether Lipetzky appointed counsel within a “reasonable time after attachment to allow for adequate representation at any critical stage before trial, as well as at trial itself.” Rothgery, 554 U.S. at 212. In other words, how soon after the Sixth Amendment right attaches must counsel be appointed, and at what point does delay become constitutionally significant? Instead of addressing whether the delay in appointing counsel was unreasonable, the district court considered only whether the delay “impacted [plaintiff’s] representation at subsequent critical stages of his proceedings.” By framing the question in that way, the district court erroneously required the plaintiffs to allege actual prejudice. See United States v. Wade, 388 U.S. 218, 225, 236–37 (1967) (finding a Sixth Amendment violation based on the “grave potential for prejudice”); Hamilton v. Alabama, 368 U.S. 52, 54 (1961) (finding a Sixth Amendment violation where the absence of counsel “may affect the whole trial”). We therefore remand for the district court to consider whether appointing counsel
5

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five to thirteen days and “sometimes longer” after the right attaches complies with the “reasonable time” requirement articulated in Rothgery.
4. After dismissing all of plaintiffs’ federal law claims, the district court declined to exercise supplemental jurisdiction over their state law claims. Because we reverse the dismissal of plaintiffs’ Sixth Amendment claim, we also reverse the dismissal of plaintiffs’ state law claims.
AFFIRMED IN PART; REVERSED IN PART; REMANDED.
6

 
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1 SHARON L. ANDERSON (SBN 94814) County Counsel
2 D. CAMERON BAKER (SBN 154432) Deputy County Counsel
3 Deputy County Counsel COUNTY OF CONTRA COSTA
4 651 Pine Street, Ninth Floor Martinez, California 94553
5 Telephone: (925) 335-1800 Facsimile: (925) 335-1866
6 Electronic Mail cameron.baker@cc.cccounty.us
7 Attorneys for Defendant ROBIN LIPETZKY
8 UNITED STATES DISTRICT COURT
9 NORTHERN DISTRICT OF CALIFORNIA
10

11

JOHN FARROW, JEROME WADE, on No. C12-6495 JCS

12 their behalf, and on behalf of all others

similarly situated,

DEFENDANT ROBIN LIPETZKY’S MOTION

13 Plaintiffs,

TO DISMISS SECOND AMENDED COMPLAINT; MEMORANDUM IN

14

SUPPORT OF MOTION TO DISMISS

v.

15 CONTRA COSTA COUNTY PUBLIC

16 DEFENDER ROBIN LIPETZKY, in her Date: July 26, 2013

official capacity, and DOES 1 through Time: 9:30 a.m.

17 20, et a.,

Crtrm: G, 15th Floor

Judge: Hon. Joseph C. Spero Presiding

18

Defendants.

Date Action Filed: December 21, 2012 Trial Date: None Assigned

19

20

21

22

23

24

25

26

27

28

MOTION TO DISMISS SECOND AMENDED COMPLAINT; MEMORANDUM IN SUPPORT - Case No. C12-6495 JCS

Case 3:12-cv-06495-JCS Document 56 Filed 06/13/13 Page 2 of 17

1 TO ALL PARTIES AND THEIR COUNSEL OF RECORD:

2

PLEASE TAKE NOTICE that on July 26, 2013, at 9:30 a.m., in Courtroom G, 15th

3 Floor, 450 Golden Gate Avenue, San Francisco, CA, 94102, defendant Contra Costa County

4 Public Defender Robin Lipetzky (“Lipetzky”) will move this Court, pursuant to Federal Rule

5 of Civil Procedure §12(b)(6), to dismiss the Second Amended Complaint filed by plaintiffs

6 John Farrow and Jerome Wade (collectively “Plaintiffs”) on behalf of themselves and all

7 others similarly situated. This motion is based on the following grounds:

8

1. Plaintiffs’ complaint fails to state a claim against Ms. Lipetzky;

9

2. Plaintiffs’ first claim, which is brought under 42 U.S.C. §1983 for violation of the

10 Sixth Amendment’s right to counsel, fails because there has been no violation of this Sixth

11 Amendment right as a matter of law based on the matters alleged;

12

3. Plaintiffs’ second and third claims, which are brought under 42 U.S.C. §1983 for

13 violation of the Fourteenth Amendment’s substantive due process and procedural due process

14 protections for “denial of statutory speedy trial rights,” are meritless as a matter of law because

15 these claims rest on state “statutory speedy trial” rights, not federal constitutional or statutory

16 violations, and because Plaintiffs have not pled facts demonstrating a violation of their state

17 statutory speedy trial rights;

18

4. Plaintiffs’ fourth claim, which is brought under 42 U.S.C. §1983 for violation of the

19 Fourteenth Amendment’s equal protection clause, is meritless as a matter of law where the

20 alleged policy applies equally to all individuals who qualify for legal services provided by the

21 Public Defender’s Office; and

22

5. Plaintiffs’ fifth and sixth claims are state law claims that should be dismissed due to

23 lack of subject matter jurisdiction and because Plaintiffs’ allegations fail to state a claim as to

24 the alleged violations.

25

This motion shall be based on this Notice of Motion and Motion, the supporting

26 Memorandum of Points and Authorities, the complete files and records in this action, and oral

27 argument at the hearing.

28

MOTION TO DISMISS SECOND AMENDED COMPLAINT; MEMORANDUM IN SUPPORT - Case No. C12-6495 JCS

Case 3:12-cv-06495-JCS Document 56 Filed 06/13/13 Page 3 of 17

1 2
I. 3 4 II. 5
III. 6 7 IV. 8 9 10 11 12 13 14 15 16
V. 17 18 19 20 21 22 23 24 25 26 27 28

TABLE OF CONTENTS
INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ISSUES PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
FACTUAL BACKGROUND.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
LEGAL ARGUMENT .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 A. There Has Been No Denial Of Plaintiffs’ Right To Assistance of
Counsel Under the Sixth Amendment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 B. Plaintiffs’ Claims Respecting Their “Statutory Speedy Trial Rights”
Lack Merit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 C. Plaintiffs Cannot Assert a Section 1983 Claim Under the Fourteenth
Amendment Based on the Equal Protection Clause. . . . . . . . . . . . . . . . . . . . . . 10 D. Plaintiffs’ State Law Claims Should Be Dismissed Without Prejudice
Due to Lack of Subject Matter Jurisdiction.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 E. Plaintiffs’ State Law Claims Lack Merit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 F. The Court Should Not Grant Leave to Amend. . . . . . . . . . . . . . . . . . . . . . . . . . 12
CONCLUSION.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

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1

TABLE OF AUTHORITIES

Cases

2

Barbier v. Connolly, 113 U.S. 27 (1885).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

3

Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

4

Guevara v. Marriot Hotel Svcs, Inc., 2013 U.S. Dist. LEXIS 38847

5 (N.D. Cal. March 20, 2013). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

6 In re Weiner, 32 Cal.App.4th 441 (1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

7 James v. City of Chester, 852 F.Supp. 1288 (D.S.C. 1994).. . . . . . . . . . . . . . . . . . . . . . . . . . . 11 8 McNeal v. Adams, 623 F.3d 1283 (9th Cir. 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

9 People v. Arevalo-Iraheta, 193 Cal.App.4th 1574 (2011).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

10 People v. Brown, 35 Cal.App.3d 317 (1973).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

11 People v. Mesaris, 201 Cal.App.3d 1377 (1988).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

12 People v. Valenzuela, 86 Cal.App.3d 427 (1978). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 10

13 State of New Jersey v. Anthony Fann, 239 N.J. Super. 507 A.2d 1023 (1990). . . . . . . . . . . . 6, 7 14 United States v. Benford, 574 F.3d 1228 (9th Cir. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8

15

16 Statutes and Other Authorities

17 California Civil Code §52 .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

18 California Civil Code §52.1.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

19 California Constitution Article I, §14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5

20 California Government Code §27706. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 3

21 California Penal Code §1009. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

22 California Penal Code §1050 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

23 California Penal Code §1050(l). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

24 California Penal Code §1270.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

25 California Penal Code §1270.1(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

26 California Penal Code §1270.1(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

27 California Penal Code §825. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 4, 9, 10

28 California Penal Code §825(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 9

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1 California Penal Code §859b . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 2 California Penal Code §988. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 3 Federal Rule of Civil Procedure §12(b)(6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 4 Government Code §27706. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 11 5 Government Code §27706(a).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 6 Government Code §27706(f). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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1

MEMORANDUM OF POINTS AND AUTHORITIES

2 I. INTRODUCTION

3

Defendant Robin Lipetzky, the Public Defender of Contra Costa County, hereby moves

4 this Court pursuant to Federal Rule of Civil Procedure §12(b)(6) to dismiss the Second

5 Amended Complaint (“SAC”) filed by Plaintiffs John Farrow and Jerome Wade on behalf of

6 themselves and all others similarly situated, and each cause of action asserted therein against

7 her. The SAC and each cause of action therein should be dismissed on the grounds that

8 Plaintiffs have failed to state a cause of action as to which relief can be granted as to Ms.

9 Lipetzky. Each of Plaintiffs’ federal claims are meritless as a matter of law. Plaintiffs’ two

10 state claims are likewise meritless as a matter of law and should be dismissed for this reason as

11 well as lack of subject matter jurisdiction. Plaintiffs have already made one attempt to amend

12 around these defects and should not be granted further leave to amend. Accordingly,

13 Plaintiffs’ federal claims should be dismissed with prejudice and their state law claims without

14 prejudice.

15 II. ISSUES PRESENTED

16

In this motion, Ms. Lipetzky raises the following five issues, which, with one exception

17 (Issue No. 3), are the same issues raised in her prior motion to dismiss:

18

1. Can Plaintiffs assert a claim under 42 U.S.C. §1983 for violation of the Sixth

19 Amendment’s right to counsel where Plaintiffs appeared without counsel at the initial court

20 appearance, requested counsel at that appearance, and had counsel at their next court hearing,

21 which took place between seven (7) to thirteen (13) days later?

22

2. Can Plaintiffs assert claims under 42 U.S.C. §1983 for violation of the Fourteenth

23 Amendment’s substantive due process and procedural due process protections for “denial of

24 statutory speedy trial rights,” where those rights are provided by state law and Plaintiffs’

25 allegations fail to demonstrate a violation of those state statutory speedy trial rights?

26

3. Can Plaintiffs assert a claim under 42 U.S.C. §1983 for violation of the Fourteenth

27 Amendment’s equal protection clause where the policy at issue applies equally to all those

28 eligible for legal services from the Public Defender’s Office?

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Case 3:12-cv-06495-JCS Document 56 Filed 06/13/13 Page 7 of 17

1

4. Should the Court retain jurisdiction over Plaintiffs’ state law claims in the absence

2 of any viable federal claims?

3

5. Can Plaintiffs assert state law claims, one of which is predicated upon the violation

4 of their “statutory speedy trial rights” and the other of which is predicated upon Ms. Lipetzky’s 5 alleged breach of California Government Code section 27706,1 where Plaintiffs’ factual

6 allegations fail to state a plausible violation of the applicable state statutes?

7 III. FACTUAL BACKGROUND

8

The following is a brief summary based on Plaintiffs’ allegations in the Second

9 Amended Complaint, including the new factual allegations made in that document. This

10 summary is set forth solely for the purpose of this motion and Ms. Lipetzky does not concede

11 the truthfulness of Plaintiffs’ allegations.

12

Ms. Lipetzky is the duly appointed Public Defender for Contra Costa County. SAC,

13 ¶23. Ms. Lipetzky allegedly has a policy of not providing counsel to criminal defendants at

14 their first court hearing. Id., ¶1. At this first court appearance, no plea is taken, bail is not

15 examined and counsel is not appointed. Id., ¶3. The criminal defendant is asked if he or she

16 would like court-appointed counsel, and if so, whether he can afford counsel; where the

17 criminal defendant requests counsel and asserts he/she cannot afford counsel, there is a

18 “referral to the Public Defender” and an automatic continuance for “further arraignment.” Id.,

19 ¶¶4, 30 & 39. This continuance may last between five and 13 days “depending on the vagaries

20 of where the case was filed within the county.” Id., ¶6.

21

Criminal defendants are not informed of their “speedy trial rights” prior to imposition

22 of this automatic continuance. Id. Because Plaintiffs did not enter a plea at the initial hearing,

23 there was no triggering of “California’s statutory speedy rights as well as other protections.”

24 Id., ¶10.

25

Both Plaintiffs are indigent criminal defendants who qualify for Court-appointed

26 counsel. Id., ¶¶32 & 44. Each Plaintiff had a first court appearance where he appeared

27 1 With the exception of the reference to 42 U.S.C. section 1983, all statutory references are to the
28 California state code. Thus, Penal Code section 988 refers to California Penal Code section 988.

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1 without counsel. Id., ¶29 (Farrow) and ¶36 (Wade). At that first court appearance, the state

2 court asked if Plaintiff could afford counsel, and if not, whether he wanted counsel appointed

3 by the state court. Id., ¶30 (Farrow) & ¶39 (Wade). Each Plaintiff answered that he could not

4 afford counsel and that he wanted counsel. Id. For each Plaintiff, the state court then

5 “referred the matter to the Public Defender” and continued the matter for “further

6 arraignment.” Id. Both Plaintiffs were sent back to jail without being advised of their right to

7 bail or the right to a speedy preliminary hearing and trial. Id. At the “further arraignment,”

8 each was appointed counsel. Id., ¶32 & ¶44. At that time, Plaintiff Farrow entered his plea.

9 Id., ¶32. There is no allegation respecting when Plaintiff Wade entered his plea.

10

Plaintiffs have added the following new factual allegations:

11

1) Between the initial appearance and the “further arraignment,” the Probation

12 Department prepared a bail study for each Plaintiff. Id., ¶31 & ¶40. This report was made

13 without input from either Plaintiff’s criminal counsel. Id.;

14

2) Plaintiff Wade’s initial appearance was untimely under California Penal Code

15 section 825. Id., ¶37;

16

3) Plaintiff Wade’s initial appearance was attended by a deputy district attorney. Id.,

17 ¶38;

18

4) Between Plaintiff Wade’s initial appearance and his second appearance, the District

19 Attorney filed an amended complaint adding new charges, which filing was as of right due to

20 the fact that Plaintiff Wade had not yet entered a plea. Id., ¶43; and

21

5) In the course of reviewing documents after Plaintiff Wade’s second appearance on

22 November 21, his counsel became aware of a potential Miranda issue. Id., ¶45. An

23 investigator interviewed a potential witness, his high school principal, on this issue on

24 November 28, at which time the principal “maintained that she could not remember when or

25 how Mr. Wade was Mirandized during the encounter due to failure of memory.” Id.

26

Plaintiffs purport to represent a class of similarly situated individuals. They have

27 asserted five questions of law common to the class, including “whether [] a forced 5 to 13 day

28 delay between an indigent in-custody defendant’s first appearance in court and representation

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1 by the Public Defender [] is unreasonable under the 6th Amendment to the United States

2 Constitution when arraignment is a critical stage of the proceedings under California law.” Id.,

3 ¶52(1).

4

Plaintiffs initially filed this case on December 21, 2012. Ms. Lipetzy filed a motion to

5 dismiss the initial complaint on January 31, 2013. The Court granted Ms. Lipetzky’s motion

6 on May 8, 2013, with leave to amend. May 8, 2013 Order, Docket No. 47 (“May 8 Order”).

7 On May 14, 2013, Plaintiffs filed their First Amended Complaint. Pursuant to a Stipulation

8 and Order, Plaintiffs filed the SAC on May 31, 2013.

9

For the reasons discussed more fully below, the SAC fails to state a plausible claim

10 against Ms. Lipetzky and therefore, this action should be dismissed.

11 IV. LEGAL ARGUMENT

12

This Court previously held that Plaintiffs’ initial allegations failed to state a cognizable

13 federal claim. Plaintiffs’ new factual allegations do not change this result. In fact, Plaintiffs’

14 claims largely fail due to the defects previously identified and discussed in the Court’s May 8

15 Order. Plaintiffs’ failure to rectify these same defects via amendment demonstrates that any

16 further amendment would be futile. The Court should dismiss Plaintiffs’ federal claims with

17 prejudice and their state claims without prejudice.

18

A. There Has Been No Denial Of Plaintiffs’ Right To Assistance of Counsel

Under the Sixth Amendment

19

In the SAC, Plaintiffs do not specify which of the new factual allegations support their

20

Sixth Amendment claim. See SAC, ¶¶9, 56-58. However, these new factual allegations are

21

insufficient to resurrect this claim. To the contrary, this claim remains moribund for the

22

reasons articulated by the Court in its May 8 Order.

23

Before proceeding to the analysis, Ms. Lipetzky wishes to alert the Court to Article I,

24

section 14 of the California Constitution, which governs arraignments in felony prosecutions.

25

This constitutional provision states in relevant part: “The magistrate shall immediately give the

26

defendant a copy of the complaint, inform the defendant of the defendant’s right to counsel,

27

allow the defendant a reasonable time to send for counsel, and on the defendant’s request

28

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1 read the complaint to the defendant.” Cal. Const., Art. I §14 (emphasis added). This provision

2 gives additional support to Ms. Lipetzky’s position and the Court’s May 8 Order.

3

Plaintiffs’ Sixth Amendment claim is based on an alleged failure to provide counsel at a

4 non-critical stage. SAC, ¶9. To prevail on this type of alleged violation of the right to

5 counsel, Plaintiffs must establish that there was prejudice to Plaintiffs’ substantive rights as a 6 result of the absence of counsel. See McNeal v. Adams, 623 F.3d 1283, 1288 (9th Cir. 2010); 7 see also May 8 Order at 13 (plaintiffs failed to plausibly allege that their subsequent

8 representation by counsel was prejudiced by the delay in appointing counsel following

9 attachment). Plaintiffs cannot demonstrate that they suffered any such prejudice.

10

The only new factual allegations common to both Plaintiffs concern bail studies

11 purportedly performed by the Probation Department. Plaintiffs allege that these bail studies

12 “contained no favorable information concerning ... [Plaintiffs’] ties to the community, job

13 status, etc. in absence of counsel who could supply such information.” SAC, ¶31 & ¶40.

14 Despite this Court’s prior comments respecting the need for Plaintiffs to adequately allege the

15 underlying facts relating to their bail, Plaintiffs again fail to provide this Court with any

16 detailed factual allegations that plausibly suggest that lack of counsel’s input into these bail 17 studies caused prejudice to Plaintiffs. See May 8 Order at 30.2

18

Putting this aside, Plaintiffs’ bail study allegations fall squarely within the Court’s May

19 8 Order. Notably, Plaintiffs in their opposition to the prior motion to dismiss made essentially

20 the same argument respecting their bail amounts, specifically that Ms. Lipetzky’s policy

21 “restricted the flow of information to the [state] court regarding any favorable information 22 concerning Plaintiffs’ circumstances in violation of California Penal Code §1270.1.” May 8

23 Order at 10 (summarizing Plaintiffs’ opposition brief). In rejecting that argument, the Court

24 held that Plaintiffs were not prejudiced because they had not lost the opportunity to seek lower

25 bail (and present favorable information) via a subsequent bail hearing. Id. at 13. Significantly,

26
2 In the May 8 Order, the Court pointed out Plaintiffs’ failure to allege“when bail was set or that bail 27 was not set, the amount of bail that was set, any facts showing that the amount was excessive, the
conclusion that the amount was excessive, or whether they took any action to reduce bail.” May 8 28 Order at 30.

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1 California law not only provides for such a bail hearing but (a) specifically requires the

2 appointment of counsel for any unrepresented criminal defendant for purposes of the bail

3 hearing and (b) specifically tasks the criminal defendant with the responsibility for submitting

4 evidence of his or her ties to the community. See Penal Code § 1270.1(b)-(c).

5

In sum, if Plaintiffs’ community ties were such as to warrant a reduction from the

6 amount prescribed by the County’s bail schedule, something that Plaintiffs do not allege, they

7 were not prejudiced by not having counsel at the initial hearing because they retained the

8 opportunity to present favorable information (with the assistance of counsel) to the state court

9 judge (not the Probation Department) in connection with the bail hearing. See May 8 Order at

10 16-17 (holding that Plaintiffs had suffered no prejudice to their ability to obtain a lower bail

11 due to the temporary delay in appointment of counsel, citing In re Weiner, 32 Cal.App.4th 441,

12 444 (1995)).

13

In State of New Jersey v. Anthony Fann, 239 N.J. Super. 507, 571 A.2d 1023 (1990),

14 the New Jersey Superior Court faced almost the identical situation. In that case, like the

15 present, the criminal defendants were not represented by counsel at the initial appearance,

16 where the judge set initial bail and “advise[d] defendants of their rights, including the right to

17 counsel and the right of indigent defendants to have counsel appointed.” Id., 239 N.J. Super.

18 at 517, 571 A.2d at 1029. As here, a third party prepared a bail report, using, inter alia,

19 “[b]asic information [] obtained from each defendant who, in most cases, is not yet

20 represented.” Id., 239 N.J. Super. at 516, 571 A.2d at 1029. The judge reviewed the bail

21 reports either before or during the judicial review of the previously set bail amount. Id., 239

22 N.J. Super. at 517-18, 571 A.2d at 1029.

23

The New Jersey Superior Court held that under the Sixth Amendment, the criminal

24 defendant’s right to counsel did not come into play until the judicial review of the previously

25 set bail amount. The Court’s reasoning in that case is particularly apt:

26

It is therefore apparent that a defendant has a right to counsel in

connection with bail proceedings. ... However, the stage at which bail setting

27

requires the presence of counsel, absent a waiver of the right, must be subject to

certain practical considerations if the rights of defendants are to be protected

28

properly.

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1

The moment a defendant is arrested surely is “critical” but counsel can

rarely be present. In most cases immediate arrangements for representation, for

2

example, in connection with the setting of bail, are impossible. As to indigent

defendants, it is necessary that a determination of indigency be made and that

3

counsel be assigned. This takes time. The same is true in the proceedings to and

including the time of the first appearance. ... It is impractical, inappropriate and

4

contrary to the interest of defendants to require the appearance of counsel for

bail purposes until after the first appearance has been held. For present purposes

5

the “critical stage” in bail-setting proceedings, the time when representation

must be available, if not knowingly and intelligently waived, is at the first bail

6

review held after the first appearance.

7 Id., 239 N.J. Super. at 520-21, 571 A.2d at 1030-31.

8

In light of this ruling, the Court’s prior May 8 Order and Plaintiffs’ own obligation to

9 provide the Court with evidence of their ties to the community, Plaintiffs cannot assert a Sixth

10 Amendment violation based on their new bail study allegations.

11

Plaintiffs also assert new factual allegations that pertain only to plaintiff Wade. None

12 of these new factual allegations support any claimed violation of Plaintiff Wade’s right to

13 counsel.

14

Plaintiffs first allege that Mr. Wade’s first appearance was untimely under California

15 law. SAC, ¶37. Under Penal Code section 825(a), an arrestee must be taken before a

16 magistrate without undue delay. Penal Code §825(a). However, a violation of this section

17 does not require reversal or dismissal unless the violation deprived the defendant of a fair trial

18 or otherwise prejudiced the defendant. People v. Mesaris, 201 Cal.App.3d 1377, 1384 (1988).

19 Plaintiffs do not allege any such prejudice and could not do so under the circumstances.

20 People v. Valenzuela, 86 Cal.App.3d 427, 431-32 (1978).

21

Plaintiffs next allege that a deputy district attorney was present at plaintiff Wade’s first

22 appearance, “making this an adversarial encounter.” SAC, ¶38. However, Plaintiffs do not

23 allege that the deputy district attorney did anything other than observe the limited proceedings

24 that occurred. Id. Contrary to Plaintiffs’s allegations, the mere presence of a deputy district

25 attorney at the initial appearance does not convert the initial hearing, at which “[n]othing

26 happened ... other than a determination that Plaintiffs desired the appointment of counsel” 27 (May 8 Order at 17), into a “legal confrontation” that could prejudice Plaintiffs’ substantial 28 rights. In United States v. Benford, 574 F.3d 1228 (9th Cir. 2009), the Ninth Circuit held that

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1 although the government attorney was present at the pretrial status conference, there was “no

2 ‘legal confrontation’” at that conference and “no ‘loss of significant rights.’” 574 F.3d at 1230

3 & 1233.

4

Plaintiffs also allege that the prosecution was able to amend the complaint against Mr.

5 Wade as of right because Mr. Wade was unable to enter a plea at the initial appearance. SAC,

6 ¶43. Under Penal Code section 1009, the prosecution would have obtained leave of court for

7 this amendment even if Mr. Wade had already entered a plea. People v. Arevalo-Iraheta, 193

8 Cal.App.4th 1574, 1580-81 (2011). At that juncture, there was no prejudice to Mr. Wade in

9 granting leave. People v. Brown, 35 Cal.App.3d 317, 322-23 (1973).

10

Finally, Plaintiffs allege that there was a potential Miranda issue in Mr. Wade’s case

11 and that a witness, Mr. Wade’s high school principal, could not recall details when interviewed

12 on November 28, 2011, one week after Mr. Wade’s second court appearance. SAC, ¶45.

13 Plaintiffs do not provide any details respecting this alleged Miranda issue, such as whether

14 Plaintiff Wade ever raised it with the state court or the length of time between when the

15 principal witnessed the underlying events and November 28, 2011 when the principal was

16 interviewed. Plaintiffs instead assert that the principal “maintained she could not remember

17 when or how Mr. Wade was Mirandized during the encounter due to failure of memory. Had

18 appointment of counsel not been delayed due to Defendant’s policy it is possible that the high

19 school principal would have remembered the details of Mr. Wade’s interrogation which may

20 have been helpful in his defense.” Id., ¶45.

21

These allegations are insufficient. First, Plaintiffs essentially concede that they have no

22 basis other than speculation to tie the principal’s lack of memory to the delay. Second,

23 Plaintiff Wade would be the best source of information on this issue. At most, the principal

24 would be a corroborating witness. Plaintiffs’ allegations do not provide this Court with any

25 basis to assess whether the inability of the principal to recall was prejudicial to Plaintiff Wade,

26 particularly where Plaintiffs do not allege that the principal in fact had material information on

27 this issue. Since Plaintiffs’ allegations on this point are at best consistent with a possible claim

28 of prejudice and do not plausibly state a claim of prejudice, these allegations fail under the

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1 Twombly standard. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556-57 (2007).

2

In sum, Plaintiffs’ allegations fail as a matter of law to establish a violation of

3 Plaintiffs’ Sixth Amendment right to counsel.

4

B. Plaintiffs’ Claims Respecting Their “Statutory Speedy Trial Rights” Lack

Merit

5

Plaintiffs again assert two parallel claims under the Fourteenth Amendment respecting

6 their “statutory speedy trial rights.” SAC, ¶57 & ¶60. In response to the Court’s May 8 Order,

7

Plaintiffs now clarify that the asserted “statutory speedy trial rights” are those set forth in Penal

8

Code §§825, 859b and 1050. Id., ¶10. As the Court previously recognized, analysis of these

9

claims is a two-step analysis: (1) do Plaintiffs’ state “speedy trial” rights convey a liberty

10

interest protected by the Fourteenth Amendment? and (2) has there been any violation of the

11 asserted state rights? May 8 Order at 23. To state a viable claim, Plaintiffs must demonstrate

12

that both issues are resolved in the affirmative. Plaintiffs still cannot do so.

13

Notably, the Court has already rejected the use of Penal Code §859b and §1050 in the

14 May 8 Order . With respect to §859b, the Court squarely held that Plaintiffs failed to

15

sufficiently allege any violation of that section because Plaintiffs did not allege “that a

16

preliminary examination was not held ‘within 10 court days of the date [Plaintiffs were]

17

arraigned or [pled] whichever occurs later.’” Id. at 27 (paraphrasing Penal Code §859b).

18

Plaintiffs provide the Court with no new factual allegations showing that their preliminary

19

examinations were not held timely. With respect to Penal Code §1050, the Court held that this

20 section is “‘directory only and does not mandate dismissal of an action by its terms.’” May 8

21

Order at 24 n.3 (quoting Penal Code §1050(l)). Accordingly, this statute does not convey the

22

requisite liberty interest.

23

This leaves only Penal Code §825. Plaintiffs cannot predicate their Fourteenth

24

Amendment section 1983 claims on this section because a) there was no violation of §825 and

25

b) §825 does not mandate dismissal in the event of a violation.

26

Section 825 requires that a criminal defendant be brought before a magistrate within 48

27

hours of arrest. Penal Code § 825(a). Plaintiffs do not and cannot allege that Ms. Lipetzky has

28

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1 any role in determining when either of them made their first appearance before the state court.

2 Presumably, Plaintiffs assert that the absence of counsel at that first appearance precludes 3 arraignment from being concluded at the initial hearing. See May 8 Order at 26. However,

4 section 825 does not mandate that arraignment be completed within 48 hours. Accordingly,

5 there has been no violation of this section by Ms. Lipetzky.

6

Even if there were, Plaintiffs cannot predicate their Fourteenth Amendment claim upon

7 this section because this section does not convey the requisite liberty interest because the

8 section lack “explicitly mandatory language specifying the outcome that must be reached if the 9 substantive predicates are met.” See May 8 Order at 23. Section 825 does not “contain any

10 language authorizing or requiring dismissal of a prosecution by reason of delay in

11 arraignment.” See People v. Valenzuela, supra, 86 Cal.App.3d at 430 (§825 does not contain

12 any language authorizing or requiring dismissal by reason of delay).

13

Thus, Plaintiffs again have failed to adequately allege a viable Fourteenth Amendment

14 claim based on any alleged violation of their state “speedy trial” rights.

15

C. Plaintiffs Cannot Assert a Section 1983 Claim Under the Fourteenth

Amendment Based on the Equal Protection Clause

16

Plaintiffs’ fourth and final federal claim rests on a purported violation of their rights to

17

equal protection under the Fourteenth Amendment. SAC, ¶66. Plaintiffs essentially assert that

18

Ms. Lipetzky discriminates against Plaintiffs and others similarly situated due to their

19

indigence as “similarly situated criminal defendant’s [sic] who could afford private counsel

20

were furnished ‘prompt’ arraignments, were permitted to enter pleas at their first appearance in

21

Court,” etc. Id., ¶11 & ¶66. This claim makes absolutely no sense and is completely meritless.

22

First and foremost, it should go without saying that Ms. Lipetzky does not represent

23

individuals who can afford private counsel with one minor exception, capital defendants. This

24

is made clear in Government Code §27706, pursuant to which Ms. Lipetzky generally only

25

represents persons who are “not financially able to employ counsel.” Government Code

26

§27706 (this limitation applies to all Ms. Lipetzky’s clients with the exception of capital cases

27

under sub (f)).

28

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1

Second, Plaintiffs do not allege that Ms. Lipetzky has two policies with respect to

2 representation of individuals at the initial appearance, i.e. one for indigent defendants and one

3 for non-indigent defendants. A single policy that does not distinguish between classes of

4 individuals cannot support an equal protection clause claim. “The equal protection guarantee

5 of the Fourteenth Amendment only applies to governmental actions which classify individuals

6 for different benefits or burdens under the law; it does not govern actions which do not classify

7 individuals.” James v. City of Chester, 852 F.Supp. 1288, 1297 (D.S.C. 1994); see also

8 Barbier v. Connolly, 113 U.S. 27, 32 (1885) (“legislation, which, in carrying out a public

9 purpose, is limited in application, if within the sphere of its operation it affects alike all

10 persons similarly situated, is not within the [Fourteenth] amendment.”).

11

D. Plaintiffs’ State Law Claims Should Be Dismissed Without Prejudice Due to

Lack of Subject Matter Jurisdiction

12

As stated above, Plaintiffs have no plausible federal law claims. In the absence of such

13

claims, this Court does not have subject matter jurisdiction over this case. See SAC, ¶20.

14

Accordingly, the Court should dismiss Plaintiffs’ state law claims without prejudice.

15

E. Plaintiffs’ State Law Claims Lack Merit

16

Assuming arguendo the Court were to conclude that one or more of Plaintiffs’ claims

17

under section 1983 were viable, the Court should still dismiss Plaintiffs’ state law claims as

18

they lack merit as a matter of law.

19

Plaintiffs’ fifth claim asserts a violation of Civil Code §§52 and 52.1 based on the

20

alleged denial of Plaintiffs’ “statutory speedy trial rights.” SAC, ¶69. For the reasons stated

21 above and in the Court’s May 8 Order, Plaintiffs have failed to allege any violation of their

22

statutory speedy trial rights under California law and cannot do so.

23

Plaintiffs’ sixth claim seeks a writ of mandate requiring Ms. Lipetzky to comply with

24

California Government Code §27706. SAC, ¶72. Ms. Lipetzky complies fully with that

25

section. As stated in §27706(a), Ms. Lipetzky as Public Defender is obligated to defend

26

“[u]pon request of the defendant or upon order of the court.” Plaintiffs’ own allegations

27

establish that once Plaintiffs as criminal defendants make the request for counsel, the state

28

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1 court makes the order of referral to Ms. Lipetzky and continues the hearing until counsel is

2 present. SAC, ¶¶30-32 (Farrow) & ¶35-36 (Wade). Thus, Plaintiffs have no basis for

3 contending that Ms. Lipetzky has not complied with §27706.

4

F. The Court Should Not Grant Leave to Amend

5

The defects in Plaintiffs’ claims detailed above are not capable of being cured by

6 amendment. To be sure, Plaintiffs have already been given leave to amend once and failed to

7 rectify these problems. The Court should not grant further leave to amend. Guevara v.

8 Marriot Hotel Svcs, Inc., 2013 U.S. Dist. LEXIS 38847 at *28-29 (N.D. Cal. March 20, 2013).

9 V.
10
11

CONCLUSION For the foregoing reasons, the Court should grant this motion to dismiss in its entirety.

12 DATE: June 13, 2013 13

SHARON L. ANDERSON COUNTY COUNSEL

14

/S/

15

By:__________________________________

D. CAMERON BAKER

16

Deputy County Counsel

Attorneys for Defendant

17

ROBIN LIPETZKY

18

19

20

21

22

23

24

25

26

27

28

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 Case 3:12-cv-06495-JCS Document 91 Filed 11/16/16 Page 1 of 18

1 Christopher Martin (SBN 141469) Attorney at Law
2 21 Orinda Way, Ste. C # 222
3 Orinda, CA. 94563 Telephone: (510) 206-2142
4 email: M305@icloud.com

5 Michael Dietrick (SBN 92150) Attorney at Law
6 765 Baywood Dr., Ste. 227 Petaluma, CA. 94954
7 Telephone: (707) 763-5019 Facsimile: (707) 763-5022
8 email: dietrick@pacbell.net

9 Attorneys for Plaintiffs John Farrow, Jerome Wade,
10 And all others similarly situated

11

12

IN THE UNITED STATES DISTRICT COURT

13 FOR THE NORTHERN DISTRICT OF CALIFORNIA
14

15 John Farrow, Jerome Wade, on their behalf, and on
16 behalf of all others similarly situated,

17

Plaintiffs,

18 vs.

19 Contra Costa County Public Defender Robin Lipetzky, in her official capacity, and DOES 1
20 through 20, et al.,

Case No. 3:12-cv-06495-JCS THIRD AMENDED COMPLAINT CLASS ACTION DEMAND FOR JURY TRIAL

21

Defendants.

22

23

24

25

26

27

28

1
THIRD AMENDED COMPLAINT

Case 3:12-cv-06495-JCS Document 91 Filed 11/16/16 Page 2 of 18

1

Plaintiffs hereby allege as follows:

2

INTRODUCTION

3 1. In Contra Costa County, prior to the filing of this lawsuit, the county public defender,
4

5

Defendant herein, arbitrarily withheld legal representation to indigent, in-custody,

6

criminal defendants for a period of 5 to 13 days after their initial Court appearance, and

7

sometimes longer, as a matter of written Policy.

8 2. County Clips, the Contra Costa County newsletter for employees of Contra Costa County,
9

10

2010, states this, “In keeping with the constitutional guarantees to persons charged with

11

crimes, PD Lipetzky’s goal in 2010 is to have her attorneys appear with clients at their

12

first court appearance on misdemeanor cases. Currently, in Contra Costa County,

13 defendants charged with misdemeanors are arraigned before a judge without benefit of
14

15

counsel. For those defendants who want an attorney but cannot afford one, the judge

16

refers them to the Public Defender Office. The defendants then must come back to court

17

on another date. At the first court appearance, many defendants waive their rights to a

18
lawyer and proceed without benefit of counsel.” 19

20

3. Thus, the public defender’s Policy directly assists the prosecution by imposing the cost of

21

a 5 to 13 day jail stay upon the right to counsel, causing many to plead guilty, and get out

22

of jail, when they may be factually innocent or have viable legal defenses.

23
4. Pursuant to Defendant’s Policy, an in-custody, indigent criminal defendant’s request for 24

25

court-appointed counsel triggers a “referral to the Public Defender” and an automatic

26

continuance for “further arraignment.” This written Policy is partially memorialized,

27

currently, on Defendant’s website, under the FAQ section, where it states: “At the

28

2
THIRD AMENDED COMPLAINT

Case 3:12-cv-06495-JCS Document 91 Filed 11/16/16 Page 3 of 18

1

arraignment or first appearance, persons out of custody will be referred to our office and

2

given a date to return to court with an attorney from our office. Persons in custody will be

3 given a court date and will be visited at the jail by staff from the department before the
4

5

next court date. During the initial client interview, a paralegal, law clerk or attorney will: •

6

determine financial eligibility • discuss confidentially the client's background • explain the

7

overall procedure • discuss the specifics of the client's case. The interviewing attorney and

8 the attorney at the arraignment will rarely be the attorney who is assigned to the case for
9

10

logistical reasons, as well as because of the need to bring to bear specialized knowledge of

11

various areas of law.”

12

5. The automatic continuance is forced upon Plaintiffs regardless of whether a juvenile is

13 charged as an adult, whether it is a misdemeanor or felony complaint, whether the
14

15

criminal defendant suffers from a developmental disability or other infirmity, whether

16

evidence of misidentification requires immediate investigation before memories dim,

17

witnesses disappear, and video images are destroyed, or whether other exigent

18
circumstances exist. 19

20

6. California criminal defendants have an absolute right to enter a not-guilty plea at their first

21

appearance in a California Court.

22

7. Although Plaintiffs’ first court appearance under this Policy is dubbed “arraignment,” the

23
judges presiding over first appearances prevented all Plaintiffs from entering a plea by 24

25

automatically continuing their cases the moment they asked for counsel, and having them

26

ushered out of the courtroom.

27

8. Plaintiffs maintain that the delay in appointing counsel under the Policy violated their

28

3
THIRD AMENDED COMPLAINT

Case 3:12-cv-06495-JCS Document 91 Filed 11/16/16 Page 4 of 18

1

Sixth Amendment right to counsel because Defendant did not appoint counsel within a

2

“reasonable time” after their first appearance in Court as required by Rothgery v. Gillespie

3 County Texas, 554 U.S. 191 (2008), resulting in a constitutional tort.
4

5

9. Plaintiffs further assert that this knowing, systematic Policy of inaction amounted to a

6

failure to protect constitutional rights as described in Oviatt by and through Waugh v.

7

Pearce, 954 F.2d 1470 (9th Cir. 1992).

8 10. Under California law there is no remedy, in the criminal context, for Defendant’s Policy
9

10

of systematically denying counsel because the absence of counsel at arraignment is

11

harmless error. California Civil Code section 52.1, however, provides Plaintiffs with a

12

remedy for the Public Defender’s forcible interference with their Constitutional rights.

13 11. Plaintiffs in this action are all clients of the Contra Costa County Public Defender, the
14

15

Contra Costa County Alternative Public Defender’s Office, and private conflicts-counsel,

16

who are, have, or will languish in jail without representation due to the Public Defender’s

17

Policy of deliberate indifference.

18
12. Plaintiffs seek nominal and statutory damages for the criminal defendants affected by the 19

20

Public Defender’s Policy of deliberate indifference to the constitutional and statutory

21

rights of the vary people she is obligated to defend.

22

13. Plaintiffs also seek injunctive relief, requiring the Public Defender to appear at

23
arraignment, in compliance with Rothgery v. Gillespie County Texas, 554 U.S. 191 (2008) 24

25

and California Government Code section 27706, which states that the Public Defender

26

“shall” represent defendants at “all stages of the proceedings.”

27

14. Plaintiffs further seek declaratory relief, declaring the Public Defender’s Policy of non-

28

4
THIRD AMENDED COMPLAINT

Case 3:12-cv-06495-JCS Document 91 Filed 11/16/16 Page 5 of 18

1

representation illegal.

2

JURISIDICTION AND VENUE

3 15. This Court has jurisdiction of this action pursuant to 28 U.S.C. § 1343(3) for claims
4

5

brought under 42 U.S.C. § 1983, and pursuant to 28 U.S.C. §1331 generally. Venue is

6

proper pursuant to 28 U.S.C. Section 1391(b).

7

16. This is an action for declaratory and injunctive relief pursuant to 28 U.S.C. Sections 2201

8 and 2202 and the equitable and inherent powers of this Court.
9

10

17. Under 28 U.S.C. § 1367(a) the Court has supplemental jurisdiction over the state claims

11

alleged herein. The amount in controversy is over $25,000.00 (Twenty-five thousand

12

dollars).

13 18. Plaintiffs seek a temporary restraining order compelling the Public Defender, or a
14

15

designee, to appear in court and represent all current and future clients from the time of

16

their first appearance in court or a reasonable time thereafter. Plaintiffs further seek

17

preliminary and permanent injunctive relief compelling the Public Defender, or a

18
designee, to appear in court and represent all current and future clients from the time of 19

20

their first appearance in court or a reasonable time thereafter. Plaintiffs further seek

21

declaratory relief declaring the Public Defender in violation of her constitutional duties,

22

and her legislative mandate pursuant to California Government Code section 27706.

23
19. This case arises under the Sixth and Fourteenth Amendments to the United States 24

25

Constitution, 42 U.S.C. section 1983, Article I, sections 12 and 13 of the California

26

Constitution, California Code of Civil Procedure sections 1085 and1086, California

27

Government Code section 27706, California Civil Code section 52.1(b), and all California

28

5
THIRD AMENDED COMPLAINT

Case 3:12-cv-06495-JCS Document 91 Filed 11/16/16 Page 6 of 18

1

Penal Code sections pertaining to arraignment, appointment of counsel, and speedy trial

2

rights.

3

4

PARTIES

5

20. Defendant Robin Lipetzky is the duly appointed public defender of Contra Costa County.

6

She is vested by law with the responsibility of representing all indigent defendants at all

7

stages of criminal proceedings pursuant to California Government Code section 27706.

8 Defendant Lipetzky at all times acted in the course and scope of her employment and
9

10

under color of law. She is sued in her official capacity.

11 21. Plaintiffs John Farrow, Jerome Wade, and all those similarly situated, are, and at all

12

material times herein, were citizen of the United States and residents of the state of

13 California who were indigent criminal defendants, arraigned, in custody, and without
14

15

counsel, in Contra Costa County within the two (2) years before the filing of this

16

Complaint. All asked for court-appointed counsel at arraignment; none were informed of

17

their right to enter a not-guilty plea at the first appearance; none were advised of their

18
statutory speedy trial rights; and none waived their statutory speedy trial rights; all had 19

20

bail set without consideration of favorable information concerning bail that only counsel

21

could provide; all remained in custody without counsel for 5 to 13 days, or longer, after

22

their first Court appearance; all were forced to elect between their right to counsel and

23
their speedy trial rights; all were referred to the county probation department for bail 24

25

studies and reports, which were conducted between their first and second Court

26

appearances – reports which referenced all facts favorable to the prosecution, and which

27

omitted all favorable information concerning Plaintiffs’ ties to the community, etc.,

28

6
THIRD AMENDED COMPLAINT

Case 3:12-cv-06495-JCS Document 91 Filed 11/16/16 Page 7 of 18

1

because such information could not be obtained without counsel; and, all were prejudiced

2

by the deprivation of their rights under the United States Constitution, the California

3 Constitution, and the laws of the state of California, enabling them to state a cause of
4

5

action under 42 U.S.C. 1983 for nominal damages and injunctive relief as described in

6

Carey v. Piphus, 435 U.S. 247 (1978).

7

STATEMENT OF FACTS

8 22. This action satisfies all of the requirements of Rule 23(a), (b)(1) and (2) of the Federal
9

10

Rules of Civil Procedure.

11 23. Within six (6) months John Farrow, Plaintiff, filed a group Government Tort Claim for

12

himself and for all persons similarly situated. Plaintiffs’ group claim was denied on or

13 about July 24, 2012, allowing the filing of this class action complaint on state statute and
14

15

constitutional violations.

16 24. Within six (6) months Jerome Wade, Plaintiff, filed a group Government Tort Claim for

17

himself and for all persons similarly situated. On timeliness grounds, Plaintiff's group

18
claim was denied on or about October 17, 2012. The county later acknowledged timely 19

20

filing due to Mr. Wade’s juvenile status and denied the claim on the merits on February

21

26, 2013.

22

25. Mr. Farrow was arrested on August 30, 2011.

23
26. Mr. Farrow appeared alone in Court for his arraignment on September 2, 2011. 24

25

27. The Court asked him if he could afford counsel, and he replied that he could not. The

26

Court then asked if he wanted the court to appoint counsel, and Mr. Farrow said that he

27

did. The court set bail, then “referred the matter to the Public Defender,” and continued

28

7
THIRD AMENDED COMPLAINT

Case 3:12-cv-06495-JCS Document 91 Filed 11/16/16 Page 8 of 18

1

the matter to September 15 for “further arraignment,” without advising Mr. Farrow of his

2

right to enter a plea of not guilty. Mr. Farrow languished in jail, without meaningful

3 examination of bail or the protection of statutory speedy trial rights or legal
4

5

representation, for the next 13 days.

6 28. At his “arraignment” on September 2, 2011 the Court also referred the matter to the

7

probation department for a bail study, which was conducted during the time between Mr.

8 Farrow’s first and second Court appearances. This highly influential report contained no
9

10

favorable information concerning Mr. Farrow’s circumstances because there was no

11

means for the probation department to determine Mr. Farrow’s ties to the community, job

12

status, etc. in the absence of counsel who could supply such information. The report,

13 however, did include the police report and every negative fact on record related to him.
14

15

29. At the “further arraignment,” on September 15, 16 days after his arrest, and 13 days after

16

his first appearance in Court, counsel was appointed pursuant to the Public Defender's

17

Policy, and Mr. Farrow was permitted to enter a plea.

18
30. Mr. Farrow immediately asserted his right to a speedy preliminary hearing, and his 19

20

preliminary hearing was held on September 27, 2011.

21 31. The complaining witness in Mr. Farrow’s case, a domestic partner and attorney, said that

22

she asked neighbors who were outside of her residence to call the police after Mr. Farrow

23
allegedly assaulted her; but no one called the police. Mr. Farrow’s investigator tried to 24

25

locate these witnesses to establish that the complaining witness lied to the police and lied

26

under oath at the preliminary hearing. They could not be found, but might have been

27

found had Mr. Farrow been appointed counsel within a reasonable time, which would

28

8
THIRD AMENDED COMPLAINT

Case 3:12-cv-06495-JCS Document 91 Filed 11/16/16 Page 9 of 18

1

have enabled him to conduct prompt investigation. Establishing that the complaining

2

witness lied to the police and under oath would have had an enormous impact on plea

3 negotiations and may have resulted in acquittal had the matter gone to trial.
4

5

32. Mr. Wade, who was 17 years old, was arrested at his high school on November 8, 2011.

6 33. Mr. Wade appeared in Court alone for his arraignment on November 14, 2011.

7

34. Mr. Wade was held illegally for four days due to the fact that he was not arraigned in any

8 fashion until the 6th day after his arrest, in blatant violation of California Penal Code
9

10

section 825 and Gerstein v. Pugh, 425 U.S. 103 (1975). Mr. Wade did not know that this

11

was a violation of his rights, and the police reports did not reference the error. His second

12

arraignment also had been adjusted to fall within the window created by Defendant’s

13 Policy, as opposed to beyond it, which effectively masked the error because there was no
14

15

way of discovering the violation without examining the minute orders in the case.

16 35. The county prosecutor appeared at Mr. Wade’s first Court appearance on November 14,

17

2011, making this an adversarial encounter.

18
36. At his arraignment on November 14, 2011, the Court set bail, and asked Mr. Wade if he 19

20

could afford counsel, and he replied that he could not. The Court then asked if he wanted

21

the court to appoint counsel, and Mr. Wade said that he did. The court then “referred the

22

matter to the Public Defender,” and continued the matter to November 21 for “further

23
arraignment,” without advising Mr. Wade of his right to enter a plea, his right to bail, his 24

25

right to a prompt arraignment or his right to a speedy preliminary hearing and trial. Mr.

26

Wade languished in jail, without examination of bail or the protection of statutory speedy

27

trial rights or legal representation, for the next 7 days.

28

9
THIRD AMENDED COMPLAINT

Case 3:12-cv-06495-JCS Document 91 Filed 11/16/16 Page 10 of 18

1 37. At his “arraignment” on November 14, 2011 the Court also referred the matter to the

2

probation department for a bail study. This highly influential report contained no

3 favorable information concerning Mr. Wade’s circumstances because there was no means
4

5

for the probation department to determine Mr. Wade’s ties to the community, school

6

status, etc. in the absence of counsel who could furnish such information.

7

38. The original complaint, which was filed on November 10, 2011, four days before Mr.

8 Wade’s first appearance in Court, contained 10 counts and enhancements in an 11-page
9

10

document.

11 39. Police investigation was ongoing through the period between Mr. Wade’s first and second

12

Court appearance, and the district attorney was also hard at work on the case during this

13 period.
14

15

40. On November 18, 2011, during the period between Mr. Wade’s first and second

16

appearance in Court, the district attorney filed an amended complaint adding 15 new

17

charges and enhancements in a 53 page document, thereby increasing Mr. Wade’s

18
exposure several fold. The district attorney was able to do this, as a matter of right, 19

20

without leave of the Court, pursuant to the express terms of Penal Code section 1009, only

21

due to the fact that no plea had been entered at Mr. Wade’s first appearance as the result

22

of Defendant’s Policy.

23
41. At the “further arraignment,” on November 21, 2011, 13 days after his arrest, and 7 days 24

25

after his first appearance in Court, as a juvenile charged as an adult, counsel was

26

appointed.

27

28

10
THIRD AMENDED COMPLAINT

Case 3:12-cv-06495-JCS Document 91 Filed 11/16/16 Page 11 of 18

1 42. Mr. Wade’s investigator interviewed his high school principal who was present when Mr.

2

Wade was interrogated in her office. The high school principal had a hazy recollection of

3 the interrogation and could not recall when Mr. Wade was Mirandized or what he was
4

5

wearing when he was interrogated. If the officer had obtained a confession in advance of

6

Miranda, Mr. Wade’s confession (which was the chief evidence against him) might have

7

been suppressed, resulting in dismissal of the charges.

8 43. The police officer that interrogated Mr. Wade said that Mr. Wade was wearing a
9

10

sweatshirt that was worn by one of the perpetrators in a convenience store robbery. In

11

fact, however, the sweatshirt was in Mr. Wade’s backpack, which the officer illegally

12

searched. Had Mr. Wade been able to conduct prompt investigation, it is likely that the

13 principal would have been able to remember this fact, and Mr. Wade might have been
14

15

able to suppress this evidence.

16 44. The District Court previously granted two defense motions pursuant to Rule 12(b)(6).

17

Plaintiffs stood on the pleadings after the second dismissal, and appealed to the Ninth

18
Circuit Court of Appeals. The Court of Appeals reversed the District Court on Plaintiffs’ 19

20

6th Amendment Claims, stating: “We therefore remand for the district court to consider

21

whether appointing counsel five to thirteen days and “sometimes longer” after the right

22

attaches complies with the “reasonable time” requirement articulated in Rothgery.”

23
Defendant’s subsequent petition for rehearing en banc and petition for a writ of certiorari 24

25

were denied.

26 45. This is a facial challenge to the constitutionality of Defendant’s written Policy of arbitrarily

27

withholding counsel for an unreasonable period of time, in strict adherence to the plain

28

11
THIRD AMENDED COMPLAINT

Case 3:12-cv-06495-JCS Document 91 Filed 11/16/16 Page 12 of 18

1 language of the Ninth Circuit’s mandate. Plaintiffs believe that this is a mixed question of law

2

and fact that must be decided by a jury.

3 CLASS CLAIMS
4
46. The deprivation of counsel that Plaintiffs were subjected to, along with all those similarly 5

6

situated, were performed pursuant to policies, practices, and customs of defendant Contra

7

Costa County Public Defender, Robin Lipetzky, acting under color of law.

8

47. Plaintiffs bring this action on their own behalf, and on behalf of all persons similarly

9 situated, pursuant to Rule 23, Federal Rules of Civil Procedure.
10

11

48. The class is defined to include all persons who, in the period from and including two (2)

12

years prior to the filing of the original Complaint on December 21, 2012, and continuing

13

until this matter is adjudicated and the practices complained herein cease, were subjected

14 to the deprivation of counsel at their first court appearance and were forced to continue
15

16

their cases for 5 days or more for appointment of counsel, pursuant to the Public

17

Defender's written Policy.

18

49. In accordance with Federal Rules of Civil Procedure, Rule 23(a), the members of the class

19
are so numerous that joinder of all members is impractical. Plaintiffs do not know the 20

21

exact number of class members but Plaintiffs are informed and believe, and thereupon

22

allege, that the number of individually named Plaintiffs together with CLASS MEMBERS

23

exceeds 5000.

24
50. In accordance with Federal Rules of Civil Procedure, Rule 23(a), Plaintiffs are informed 25

26

and believe, and thereupon allege, that there are many questions of fact common to the

27

class including, but not limited to whether:

28

12
THIRD AMENDED COMPLAINT

Case 3:12-cv-06495-JCS Document 91 Filed 11/16/16 Page 13 of 18

1

(1) “Appointing counsel five to thirteen days and “sometimes longer” after the

2

right attached complies with the “reasonable time” requirement articulated

3 in Rothgery.” (Farrow v. Lipetzky, 637 Fed.Appx. 986, 989 (2016).)
4

5

(2) All Plaintiffs were indigent, in-custody criminal defendants in Contra Costa

6

County;

7

(3) All Plaintiffs asked for appointment of the Public Defender;

8 (4) All Plaintiffs suffered an automatic continuance of between 5 and 13 days,
9

10

or more, as a direct consequence of asserting their right to appointed

11

counsel;

12

(5) None were permitted to exercise their right to enter a plea of not guilty at

13 the first appearance.
14

15

(6) All Plaintiffs were deprived of counsel for a period of between 5 and 13

16

days, or longer, after their initial arraignment;

17

(7) All Plaintiffs were deprived of said rights due to the Policy of the Public

18
Defender. 19

20

(8) The Public Defender maintains records concerning the relevant facts with

21

regard to each Plaintiff.

22

51. The Public Defender knew that the actions alleged herein violated state and federal

23
law when she committed said actions. 24

25

52. In accordance with Federal Rules of Civil Procedure, Rule 23(a), Plaintiffs are

26

informed and believe, and thereupon allege, that there are many questions of law common

27

to the class including whether:

28

13
THIRD AMENDED COMPLAINT

Case 3:12-cv-06495-JCS Document 91 Filed 11/16/16 Page 14 of 18

1 2 3 4 5 6 7 8 9 10 11 12 13 53. 14 15 16 17 18 19 20 21 54. 22 23 24 25 26 27 28

(1) “[A]ppointing counsel five to thirteen days and “sometimes longer” after the right attaches complies with the “reasonable time” requirement articulated in Rothgery.” (Farrow v. Lipetzky, 637 Fed.Appx. 986, 989 (2016).)
(2) A forced 5 to 13 day delay between an indigent in custody defendant's first appearance in court and representation by the Public Defender, or her proxy, violates California's Bane Civil Rights Act (Civil Code §§ 52 and 52.1).
(3) Whether California Government Code section 27706, which states that the Public Defender shall represent indigent defendants at all stages of the proceedings, contemplates representation at arraignment.
Plaintiffs are informed and believe, and thereupon allege, that most members of the class will not be able to find counsel to represent them. Plaintiffs are informed and believe, and thereupon allege, that it is desirable to concentrate all litigation in one forum because all of the claims arise in the same location; i.e., Contra Costa County. It will promote efficiency to resolve the common questions of law and fact in one forum, rather than in multiple courts. Plaintiffs do not know the identities of all the class members. Plaintiffs are informed and believe, and thereupon allege, that the identities of the class members may be ascertained from records maintained by the Contra Costa County Public Defender. Plaintiffs are informed and believe, and thereupon allege, that defendant’s records reflect the identities, including addresses and telephone numbers, of the defendants whose rights have been transgressed as the result of the Public Defender’s Policy of deliberate indifference. Plaintiffs are informed and believe, and thereupon allege, that the Contra Costa County
14
THIRD AMENDED COMPLAINT

Case 3:12-cv-06495-JCS Document 91 Filed 11/16/16 Page 15 of 18

1 2 3 4 5 6 7 8
55. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Public Defender maintains records of when each defendant initially appeared in Court and the duration of his incarceration without counsel. Plaintiffs are informed and believe, and thereupon allege, that all of the foregoing information is contained in defendant’s computer system and that the information necessary to identify the class members, by last known addresses, and the dates of their respective initial appearance and appointment of counsel is readily available from said computer system. In accordance with Federal Rules of Civil Procedure, Rule 23(b)(3), class members must be furnished with the best notice practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort. Plaintiffs are informed and believe, and thereupon allege, that defendant’s computer records contain a last known address for class members. Plaintiffs contemplate that individual notice will be given to class members at such last known address by first class mail. Plaintiffs contemplate that notice will inform class members of the following:
i. The pendency of the class action and the issues common to the class; ii. The nature of the class action; iii. The right to “opt out” of the action within a given time, in which event they
will not be bound by a decision rendered in the class action; iv. Their right, if they do “opt out,” to be represented by their own counsel and
to enter an appearance in the case; otherwise they will be represented by the named class Plaintiff(s) and the named class Plaintiff(s)’s counsel; and

15
THIRD AMENDED COMPLAINT

Case 3:12-cv-06495-JCS Document 91 Filed 11/16/16 Page 16 of 18

1

v. Their right, if they do not “opt out,” to share in any recovery in favor of the

2

class, and conversely to be bound by any judgment on the common issues

3 adverse to the class.
4

5

FIRST CAUSE OF ACTION

6

(Violation of Sixth Amendment to the U.S. Constitution 42 U.S.C. § 1983)

7 56. 8
9 10 57.

Plaintiffs reallege and incorporate herein, as if stated in full, each and every of the allegations contained in paragraphs 1 through 55, inclusive. Defendant’s policies, practices, and customs regarding the failure to represent Plaintiffs at

11

their first appearance, or a reasonable time thereafter, violated the rights of Plaintiffs, and

12

all those similarly situated, under color of law, pursuant the Sixth Amendment right to the

13 assistance of court-appointed counsel, and directly and proximately damaged Plaintiffs,
14

15

and all those similarly situated, as herein alleged, entitling Plaintiffs, and all class

16

members, to recover nominal damages for said constitutional violations pursuant to 42

17
18 58.
19
20

U.S.C. § 1983 and Carey v. Piphus, 435 U.S. 247 (1978). WHEREFORE, Plaintiffs pray for relief, for themselves and for all persons similarly situated, as hereunder appears.

21

SECOND CAUSE OF ACTION

22 23 24 25 59.

(California State Civil Rights Act, Civil Code §§ 52 and 52.1, on behalf of Plaintiffs and all persons similarly situated – denial of statutory speedy trial rights)
Plaintiffs reallege and incorporate herein, as if stated in full, each and every of the

26 allegations contained in paragraphs 1 through 58, inclusive.

27

28

16
THIRD AMENDED COMPLAINT

Case 3:12-cv-06495-JCS Document 91 Filed 11/16/16 Page 17 of 18

1 59. Defendant’s policies, practices, and customs regarding failure to represent Plaintiffs at

2

their first court appearance, or within a reasonable time thereafter, complained herein

3 violated the rights of Plaintiffs, and all those similarly situated, by forcing Plaintiffs to
4

5

sacrifice their statutory speedy trial rights as a precondition to appointment of counsel,

6

and directly and proximately damaged Plaintiffs, and each of those similarly situated, as

7 8 9 10 60.

herein alleged, entitling said Plaintiffs, and each of those they represent, to recover a minimum of $4000.00 each pursuant to California Civil Code § 52.1 and § 52. WHEREFORE, Plaintiffs pray for relief, for themselves and for all persons similarly

11

situated, as hereunder appears.

12

13

THIRD CAUSE OF ACTION

14

(California Code of Civil Procedure §§ 1085 and 1086 – writ of mandate to enforce California Government Code § 27706)

15 61. Plaintiffs reallege and incorporate herein, as if stated in full, each and every of the

16 allegations contained in paragraphs 1 through 60, inclusive.
17

18 62. Defendant’s policies, practices and customs violate California Government Code § 27706,

19

which states that the public defender shall represent criminal defendants at all stages of

20

the proceedings. Plaintiffs are directly damaged as the result of said policies, practices

21
and customs, and request a writ of mandate, compelling the Public Defender to comply 22

23

with her statutory obligation to represent all indigent, in custody defendants by appearing

24

at the first appearance of all indigent, in-custody criminal defendants, or at a reasonable

25
26 63.
27
28

time thereafter. WHEREFORE, Plaintiffs pray for relief, for themselves and for all persons similarly situated, as hereunder appears.

17
THIRD AMENDED COMPLAINT

Case 3:12-cv-06495-JCS Document 91 Filed 11/16/16 Page 18 of 18

1

PRAYER

2

1. For declaratory and injunctive relief declaring illegal and enjoining, preliminarily and

3 permanently, defendant's policies, practices, and customs of unlawfully withholding
4

5

representation from indigent, in-custody defendants from 5 to 13 days, and sometimes

6

longer, after their initial appearance.

7

2. Certification as a class action of Plaintiffs’ complaints concerning defendants’ policies,

8 practice, and customs of withholding representation from indigent, in-custody defendants
9

10

from 5 to 13 days after their initial appearance.

11 3. For nominal damages per Carey v. Piphus, 435 U.S. 247 (1978).

12

4. For at least $4000 for each Plaintiff pursuant to California Civil Code § 52.1 and § 52, for

13 each violation thereof;
14

15

5. Attorneys’ fees and costs under 42 U.S.C. § 1988, California Civil Code § 52(b)(3),

16

California Civil Code § 52.1(h), and California Code of Civil Procedure § 1021.5.

17

6. The cost of this suit and such other relief as the court finds just and proper.

18
A JURY TRIAL IS DEMANDED. 19

20 Dated: 21 22

Christopher Martin Attorney at Law
Michael Dietrick Attorney at Law

23

24

25

By:

Christopher Martin

26

27

Attorneys for Plaintiffs

28

18
THIRD AMENDED COMPLAINT

 
 Case 3:12-cv-06495-JCS Document 107 Filed 04/28/17 Page 1 of 32

United States District Court Northern District of California

1

2

3

4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6
JOHN FARROW, et al., 7
Plaintiffs, 8
v. 9
ROBIN LIPETZKY, 10
Defendant. 11

Case No. 12-cv-06495-JCS
ORDER REGARDING MOTION TO DISMISS THIRD AMENDED COMPLAINT Re: Dkt. No. 93

12 I. INTRODUCTION

13

In this putative class action under 42 U.S.C. § 1983, Plaintiffs John Farrow and Jerome

14 Wade allege that Defendant Robin Lipetzky, in her official capacity as the Contra Costa County

15 Public Defender, violated Plaintiffs‘ Sixth Amendment right to counsel by implementing a policy

16 of delaying appointment of counsel until several days after a criminal defendant‘s first appearance

17 in court. Plaintiffs also bring related claims under California law. The Court twice previously

18 dismissed Plaintiffs‘ claims. After the second dismissal, Plaintiffs appealed to the Ninth Circuit,

19 which reversed this Court‘s holding as to certain aspects of Plaintiffs‘ claim under the Sixth

20 Amendment, and remanded for this Court to consider whether Plaintiffs have adequately alleged

21 that Lipetzky failed to provide counsel within a reasonable time after attachment of the right.

22

Lipetzky moves to dismiss once again. Among other arguments, she raises for the first

23 time the question of whether Plaintiffs‘ claims are barred by the doctrine of Heck v. Humphrey,

24 512 U.S. 477 (1994). The Court held a hearing on January 20, 2017. For the reasons discussed 25 below, Lipetzky‘s motion is GRANTED in part and DENIED in part.1

26

27

28

1 The parties have consented to the jurisdiction of the undersigned magistrate judge for all purposes pursuant to 28 U.S.C. § 636(c).

Case 3:12-cv-06495-JCS Document 107 Filed 04/28/17 Page 2 of 32

United States District Court Northern District of California

1 II. BACKGROUND

2

A. Plaintiffs’ Allegations and Facts Subject to Judicial Notice

3

Plaintiffs allege that Lipetzky implemented a written policy that ―arbitrarily withheld legal

4 representation to indigent, in-custody criminal defendants for a period of 5 to 13 days after their

5 initial Court appearance.‖ 3d Am. Compl. (―TAC,‖ dkt. 91) ¶ 1. Under that policy, a defendant

6 would not receive counsel at his or her first court appearance, but if a defendant requested counsel

7 at that appearance and could not afford to pay, the court would set bail, refer the defendant to the

8 public defender, and continue the case for a ―further arraignment‖ several days later. See id.

9 ¶¶ 1−2, 4, 21, 27, 36.

10

Plaintiff Farrow was arrested on August 30, 2011, based on allegations that he had

11 assaulted his domestic partner. Id. ¶¶ 25, 31. He first appeared in court on September 2, 2011, at

12 which time the judge asked if he could afford counsel and would like the court to appoint counsel.

13 Id. ¶¶ 26−27. Farrow replied that he could not afford counsel and would like appointed counsel,

14 and the judge ―set bail, ‗referred the matter to the Public Defender,‘ and continued the matter to

15 September 15, 2011 for ‗further arraignment.‘‖ Id. ¶ 27. The judge also asked the probation

16 department to prepare a bail study, which was prepared during the period between the two court

17 appearances and included only information unfavorable to Farrow because, without counsel, there

18 was no way for him to provide mitigating information such as his ties to the community or

19 employment status. Id. ¶ 28. The judge did not advise Farrow of his right to enter a plea at the

20 first appearance, and Farrow remained in jail for the next thirteen days. Id. ¶ 27.

21

Farrow was appointed counsel and entered a plea at his second appearance on September

22 15, 2011, which was sixteen days after his arrest and thirteen days after his first appearance. Id.

23 ¶ 29. According to Plaintiffs, the delay in Farrow obtaining counsel ―might have‖ contributed to

24 his investigator‘s failure to locate witnesses whose testimony could have implicated the credibility

25 of the complaining witness (Farrow‘s domestic partner) and thus ―would have had an enormous

26 impact on plea negotiations and may have resulted in acquittal had the matter gone to trial.‖ Id.

27 ¶ 31. Farrow pled guilty to one count against him on December 1, 2011. Def.‘s Req. for Judicial

28 Notice (―RJN,‖ dkt. 94) Ex. A.

2

Case 3:12-cv-06495-JCS Document 107 Filed 04/28/17 Page 3 of 32

United States District Court Northern District of California

1

Plaintiff Wade, then seventeen years old, was arrested at his high school on November 8,

2 2011 for his alleged involvement in a convenience store robbery. TAC ¶¶ 32, 43. Wade first 3 appeared without counsel on November 14, 2011. Id. ¶ 33.2 A country prosecutor also appeared

4 in court that day, which Plaintiffs contend made the appearance ―an adversarial encounter.‖ Id.

5 ¶ 35. The judge set bail and asked Wade whether he could afford counsel and whether he would

6 like counsel appointed. Id. ¶ 36. Wade responded that he could not afford counsel and would like

7 appointed counsel, and the judge ―‗referred the matter to the Public Defender,‘ and continued the

8 matter to November 21 for ‗further arraignment.‘‖ Id. The judge did not advise Wade of ―his

9 right to enter a plea, his right to bail, his right to prompt arraignment or his right to a speedy

10 preliminary hearing and trial.‖ Id. As in the case of Farrow, the judge also referred the matter to

11 the probation department for a bail study, which did not include information favorable to Wade

12 because he did not have counsel. Id. ¶ 37. Wade remained in jail for seven days. Id. ¶ 36.

13

During the period between Wade‘s first and second court appearances, the police and

14 district attorney continued their investigation of his case. Id. ¶ 39. On November 18, 2011, the

15 district attorney filed an amended complaint adding new charges and significantly increasing

16 Wade‘s exposure. Id. ¶ 40. The district attorney was able to do so without leave of the court

17 because Wade had not yet entered a plea. Id.

18

Wade was appointed counsel at his second court appearance on November 21, 2011. Id.

19 ¶ 41. Later, his investigator interviewed his high school principal, who had been present when the

20 police interrogated Wade. Id. ¶ 42. The principal could not remember when Wade was given

21 Miranda warnings or whether he had been wearing a sweatshirt that connected him to the robbery.

22 Id. ¶¶ 42, 43. Plaintiffs allege that the principal ―likely‖ would have remembered what Wade was

23 wearing if she had been interviewed sooner, and suggest (but do not specifically allege) that her

24 memory of the Miranda warnings would have been clearer as well. See id. Wade pled guilty to

25 three counts on December 6, 2012. RJN Ex. B.

26

Plaintiffs characterize their claims as ―a facial challenge to the constitutionality of

27

28

2 Plaintiffs allege that Wade was held illegally for four days before his first appearance, but do not argue that that detention is relevant to Wade‘s claims against Lipetzky. See TAC ¶ 34.

3

Case 3:12-cv-06495-JCS Document 107 Filed 04/28/17 Page 4 of 32

United States District Court Northern District of California

1 Defendant‘s written policy of arbitrarily withholding counsel for an unreasonable period of time,‖

2 and seek to represent a class consisting of all persons who ―were subjected to the deprivation of

3 counsel at their first court appearance and were forced to continue their cases for 5 days or more

4 for appointment of counsel, pursuant to the Public Defender‘s written Policy,‖ from December 21,

5 2010 through the resolution of this action. TAC ¶¶ 45−48.

6

The Third Amended Complaint includes three claims: (1) a claim under 42 U.S.C. § 1983

7 for violation of Plaintiffs‘ Sixth Amendment right to counsel, TAC ¶¶ 56−58; (2) a claim under

8 the Bane Act, sections 52 and 52.1 of the California Civil Code, for violation of Plaintiffs‘ civil

9 rights, TAC ¶¶ 59−60; and (3) and a claim under sections 1085 and 1086 of the California Code of

10 Civil Procedure for a writ of mandate to enforce section 27706 of the California Government

11 Code, which requires public defenders to represent criminal defendants ―at all stages of the

12 proceedings,‖ TAC ¶¶ 61−63.

13

Although the Third Amended Complaint includes allegations that Lipetzky‘s policy

14 sometimes resulted in delays in appointing counsel longer than thirteen days, Plaintiffs have

15 stipulated that the Court may disregard that allegation for the purpose of Lipetzky‘s motion to

16 dismiss. See Case Mgmt. Statement (dkt. 87) at 4.

17

B. Procedural History

18

1. May 2013 Order

19

Plaintiffs‘ original complaint included six claims: (1) violation of Plaintiffs‘ right to

20 counsel under the Sixth Amendment; (2) violation of Plaintiffs‘ right to a speedy trial under

21 substantive due process protections of the Fourteenth Amendment; (3) violation of Plaintiffs‘ right

22 to a speedy trial under procedural due process protections of the Fourteenth Amendment;

23 (4) violation of Plaintiffs‘ procedural due process rights under the Fourteenth Amendment with

24 respect to the timing of Plaintiffs‘ bail hearings; (5) violation of California Civil Code sections 52

25 and 52.1; and (6) a claim for a writ of mandate to enforce California Government Code section 26 27706. See Order Granting Def.‘s Mot. to Dismiss Compl. (―May 2013 Order,‖ dkt. 47) at 5−6.3

27

28 3 Farrow v. Lipetzky, No. 12-cv-06495-JCS, 2013 WL 1915700 (N.D. Cal. May 8, 2013). 4

Case 3:12-cv-06495-JCS Document 107 Filed 04/28/17 Page 5 of 32

United States District Court Northern District of California

1

The Court held that Plaintiffs‘ right to counsel attached at their first court appearances, but

2 that neither that appearance nor the waiting period before the second appearance was a ―critical

3 stage‖ at which counsel was required. Id. at 14−20. The Court also held that the delay in

4 appointing counsel between the time of attachment and the second appearance—which, unlike the

5 first, was a critical stage—did not violate the Supreme Court‘s instruction that counsel must be

6 provided within a reasonable time after attachment, because the delay was shorter than in other

7 district court cases that found no violation, and because Plaintiffs did not adequately allege that

8 they were prejudiced by the delay. Id. at 20−22 (citing Rothgery v. Gillespie County, 554 U.S.

9 191 (2008)). The Court therefore dismissed Plaintiffs‘ Sixth Amendment claim with leave to

10 amend. Id. The Court also dismissed Plaintiffs‘ other federal claims with leave to amend, for

11 reasons that are not relevant to the present motion because Plaintiffs have not renewed those

12 claims. Id. at 23−31. With no federal claims remaining, the Court declined to exercise

13 supplemental jurisdiction over Plaintiffs‘ state law claims. Id. at 31−32.

14

2. August 2013 Order

15

After the Court dismissed the initial complaint, Plaintiffs amended their complaint twice,

16 and Lipetzky moved to dismiss the second amended complaint. See generally Order Granting 17 Def.‘s Mot. to Dismiss 2d Am. Compl. (―Aug. 2013 Order,‖ dkt. 69).4 The Court granted that

18 motion and dismissed all claims, although it allowed Wade leave to amend his Sixth Amendment

19 claim. Id. at 1−2.

20

With respect to the Sixth Amendment claim, the Court reaffirmed its previous holdings

21 that neither the first appearance nor the waiting period before the second appearance was a critical

22 stage at which Plaintiffs were entitled to counsel, but the second appearance was. Id. at 22−26

23 (citing Lopez-Valenzuela v. County of Maricopa, 719 F.3d 1054 (9th Cir. 2013), subsequently 24 superseded sub nom. Lopez-Valenzuela v. Arpaio, 770 F.3d 772 (9th Cir. 2014) (en banc)5).

25

26

4 Farrow v. Lipetzky, No. 12-cv-06495-JCS, 2013 WL 4042276 (N.D. Cal. Aug. 7, 2013), rev’d in part, 637 F. App‘x 986 (9th Cir. 2016).

27

5 The initial Ninth Circuit panel to hear Lopez-Valenzuela affirmed the district court‘s grant of summary judgment for the defendants on claims under multiple constitutional theories. See

28

generally Lopez-Valenzuela v. County of Maricopa, 719 F.3d 1054. This Court‘s August 2013 Order relied on that panel‘s Sixth Amendment holding. Later, an en banc panel reached a

5

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1 Turning to the question of whether the challenged policy failed to provide counsel within a

2 reasonable time after attachment of the right, the Court held that although Plaintiffs added

3 allegations regarding the effect of the delay, the allegations did not sufficiently identify any actual

4 prejudice that Plaintiffs suffered as a result. Id. at 26−27. Because Plaintiffs came closer to

5 plausibly alleging prejudice to Wade than to Farrow, the Court dismissed Wade‘s Sixth

6 Amendment claim with leave to further amend but dismissed Farrow‘s claim with prejudice.

7

The Court dismissed Plaintiffs‘ remaining federal claims with prejudice, for reasons that

8 are not relevant to the present motion, and again declined to exercise supplemental jurisdiction

9 over Plaintiffs‘ state law claims. Id. at 28−35. Wade declined to further amend his Sixth

10 Amendment claim, and Plaintiffs instead appealed to the Ninth Circuit.

11

3. Ninth Circuit Decision and Subsequent Proceedings

12

The Ninth Circuit affirmed this Court‘s dismissal of Plaintiffs‘ due process and equal

13 protection claims. Farrow v. Lipetzky, 637 F. App‘x 986, 987−88 (9th Cir. 2016) (dkt. 81), cert.

14 denied, 137 S. Ct. 82 (2016). As for Plaintiffs‘ Sixth Amendment claims, the panel affirmed this

15 Court‘s conclusion that, on the facts alleged, Plaintiffs‘ first court appearance was not a critical

16 stage that required the presence of counsel. Id. at 988. The panel held that this Court erred,

17 however, in its analysis of whether counsel was appointed within a reasonable time after

18 attachment of the right, and remanded for consideration of that issue under the correct legal

19 standard:

20

The remaining question is whether Lipetzky appointed counsel

within a ―reasonable time after attachment to allow for adequate

21

representation at any critical stage before trial, as well as at trial

itself.‖ Rothgery, 554 U.S. at 212. In other words, how soon after

22

the Sixth Amendment right attaches must counsel be appointed, and

at what point does delay become constitutionally significant?

23

Instead of addressing whether the delay in appointing counsel was

unreasonable, the district court considered only whether the delay

24

―impacted [plaintiff‘s] representation at subsequent critical stages of

his proceedings.‖ By framing the question in that way, the district

25

court erroneously required the plaintiffs to allege actual prejudice.

See United States v. Wade, 388 U.S. 218, 225, 236–37 (1967)

26

27 different outcome, reversing the holding as to substantive due process and finding the Arizona

28

laws at issue facially invalid on that basis, but declined to address the plaintiffs‘ Sixth Amendment claims. See Lopez-Valenzuela v. Arpaio, 770 F.3d at 791−92.

6

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1

(finding a Sixth Amendment violation based on the ―grave potential

for prejudice‖); Hamilton v. Alabama, 368 U.S. 52, 54 (1961)

2

(finding a Sixth Amendment violation where the absence of counsel

―may affect the whole trial‖). We therefore remand for the district

3

court to consider whether appointing counsel five to thirteen days

and ―sometimes longer‖ after the right attaches complies with the

4

―reasonable time‖ requirement articulated in Rothgery.

5 Id. at 988−89. The panel also directed this Court to reconsider whether supplemental jurisdiction

6 over Plaintiffs‘ state law claims is appropriate in light of the Court‘s reconsideration of the Sixth

7 Amendment claim. Id. at 989.

8

The Supreme Court denied Plaintiffs‘ petition for certiorari on October 3, 2016. See dkt.

9 102. Following remand to this Court, Plaintiffs filed their operative third amended complaint, and

10 Lipetzky again moves to dismiss.

11

C. Parties’ Arguments

12

1. Motion to Dismiss

13

According to Lipetzky, the Ninth Circuit‘s decision in this case requires this Court to

14 consider both whether the delay in appointing counsel created ―grave potential for prejudice,‖ and

15 whether it resulted in actual prejudice. Mot. (dkt. 93) at 6. Lipetzky argues that Plaintiffs do not

16 meet the standard to show the former, because the Supreme Court cases on which the Ninth

17 Circuit relied for the ―potential for prejudice‖ standard involved denial of counsel at critical

18 stages, and the Ninth Circuit‘s decision did not reverse this Court‘s holdings that neither the first

19 appearance nor the waiting period between appearances was a critical stage. Id. at 6−8 (discussing

20 Wade, 388 U.S. 218; Hamilton, 368 U.S. 52). Lipetzky contends that those prior holdings are

21 therefore the law of the case, and that Plaintiffs have not given the Court a sufficient reason to

22 depart from those holdings. Id. at 8−9. To the extent Plaintiffs‘ present complaint could be

23 construed as bringing an as-applied, rather than facial, challenge to the policy at issue, Lipetzky

24 argues that actual prejudice is required for such a challenge, and Plaintiffs have not adequately

25 alleged that they suffered actual prejudice as a result of the policy. Id. at 9−12.

26

Lipetzky also contends that Plaintiffs‘ Sixth Amendment claim is barred by the doctrine of

27 Heck v. Humphrey, 512 U.S. 477 (1994), because success on that claim would necessarily imply

28 the invalidity of their convictions. Mot. at 12−13 (citing, e.g., Trimble v. City of Santa Rosa, 49

7

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1 F.3d 583 (9th Cir. 1995)). Lipetzky further challenges the Sixth Amendment claim on the basis

2 that the state court, not Lipetzky, set the length of the delay. Id. at 13−14.

3

Lipetzky‘s motion concludes by briefly arguing that Plaintiffs‘ state law claims should be

4 once again dismissed for lack of jurisdiction if she succeeds in dismissing the Sixth Amendment

5 claim, and that if the Court reaches those claims, the Third Amended Complaint does not plausibly

6 allege a violation of Plaintiffs‘ rights under state law. Id. at 14−15.

7

2. Opposition

8

Plaintiffs argue that their Sixth Amendment claim should not be dismissed for several

9 reasons. First, they contend that new allegations in the Third Amended Complaint—specifically,

10 that Plaintiffs had a right to enter a plea at the first appearance—distinguish the case in its present

11 form from what this Court and the Ninth Circuit previously considered, and render the first

12 appearance a critical stage requiring counsel. Opp‘n (dkt. 98) at 5−6. Next, they argue that the

13 Ninth Circuit‘s instruction to consider whether counsel was appointed within a reasonable time

14 after attachment, a mandate that Plaintiffs believe contemplates a facial challenge to the policy,

15 requires examination of factual issues inappropriate for resolution at the pleading stage. Id. at

16 6−11. Plaintiffs also contend that they have adequately alleged facts supporting an as-applied

17 challenged, because they allege that the delay in receiving counsel affected both Wade‘s and

18 Farrow‘s ability to gather evidence. Id. at 11−12. As for Lipetzky‘s law of the case argument,

19 Plaintiffs respond that the Ninth Circuit did not address whether the waiting period between

20 appearances was a critical stage, and that this Court has not yet considered whether counsel was

21 appointed within a reasonable time under the standard stated in the Ninth Circuit‘s decision. Id. at

22 13−15. Plaintiffs argue that the law of the case doctrine does not apply because the Ninth

23 Circuit‘s decision constitutes intervening controlling authority, and because new allegations in the

24 Third Amended Complaint require new analysis. Id. at 15.

25

Turning to the Heck doctrine, Plaintiffs argue that their claims should proceed because

26 Heck ―does not apply to civil matters involving criminal defendants whose convictions and

27 sentences rest upon guilty pleas—as they do in this case.‖ Id. (citing, e.g., Lockett v. Ericson, 656

28 F.3d 892 (2011)). Plaintiffs also argue that their claims do not implicate Heck because ―this Court

8

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1 has twice determined that there was no actual prejudice‖ to either Farrow or Wade, and the error

2 was therefore harmless. Id. at 16. According to Plaintiffs, the cases that Lipetzky cites are not

3 analogous because each involved a conviction at trial rather than a guilty plea. Id. at 16−17.

4

Responding to Lipetzky‘s argument that the court, rather than Lipetzky, determined the

5 length of the delay, Plaintiffs contend that they have adequately alleged that the delay was caused

6 by Lipetzky‘s policy, and that it is reasonable to infer that ―the continuance between arraignment

7 proceedings that Plaintiffs suffered could only occur upon agreement between the Public Defender

8 and the Superior Court.‖ Id. at 17−21.

9

Because Plaintiffs believe that the Sixth Amendment claim should go forward, they

10 contend that the Court has supplemental jurisdiction over their state law claims. Id. at 21.

11 Addressing the merits of those claims, Plaintiffs argue that they should be allowed to proceed on a

12 claim under section 52.1 of the California Civil Code for interference with their speedy trial rights

13 under section 859(b) of the California Penal Code, because although the policy did not actually

14 violate those rights, it prevented Plaintiffs from exercising their rights to enter a plea at the first

15 appearance, which would have started the clock on their speedy trial rights under section 859(b).

16 Id. at 22. Plaintiffs also argue that Lipetzky‘s policy violated section 27706 of the California

17 Government Code because that statute requires public defenders to represent indigent defendants

18 ―upon request . . . at all stages of the proceedings,‖ Cal. Gov‘t Code § 27706, and Plaintiffs

19 requested counsel at their first appearances—a ―stage[] of the proceedings‖—but did not receive

20 counsel at that appearance. Opp‘n at 23−24. Plaintiffs argue that had Lipetzky been present to

21 represent Plaintiffs at their first appearances, she could have expedited the resolution of their

22 cases. Id. at 24.

23

3. Reply

24

Lipetzky contends in her reply brief that claims based on the Sixth Amendment are

25 evaluated either under Strickland v. Washington, 466 U.S. 668 (1984), which requires that a

26 person claiming ineffective assistance of counsel must show actual prejudice, or under United

27 States v. Cronic, 466 U.S. 648 (1984), which held that prejudice can be presumed for certain

28 structural denials of counsel. Reply (dkt. 101) at 1–3. According to Lipetzky, Plaintiffs have not

9

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1 stated a Strickland claim because their Third Amended Complaint does not plausibly allege that

2 either Farrow or Wade was actually prejudiced by the delay in appointing counsel. Id. at 8–10.

3 She also argues that analysis of a Cronic claim depends only on whether counsel was denied

4 during a critical stage, and that nothing in the Ninth Circuit‘s decision or Plaintiffs‘ Third

5 Amended Complaint should alter the Court‘s conclusion that neither the first appearance nor the

6 waiting period between appearances was a critical stage. Id. at 4–8. Lipetzky contends that the

7 ―only issue that the Ninth Circuit directed this Court to consider on the Cronic side of the ledger,

8 which this Court did not previously consider, is whether the ‗sometimes longer‘ allegation

9 potentially results in a delay of constitutional import.‖ Id. at 5. Because the parties have since

10 stipulated that the Court may disregard that allegation, Lipetzky argues that the Court‘s prior

11 holding should stand. Id.

12

Turning to the application of Heck, Lipetzky contends that Heck does, in fact, apply to

13 cases where a conviction was based on a guilty plea rather than trial. Id. at 10 (citing Radwan v.

14 County of Orange, 519 F. App‘x 490, 490–91 (9th Cir. 2013)). Lipetzky also argues that

15 Plaintiffs‘ ―harmless error‖ argument is unavailing because a Sixth Amendment violation is not

16 complete unless the criminal defendant is prejudiced—either under a Cronic claim for denial of

17 counsel, where prejudice is presumed and reversal would be required per se, or under a Strickland

18 claim for ineffective counsel, where the criminal defendant must demonstrate prejudice to prove a

19 violation. Id. at 10 (citing United States v. Gonzalez-Lopez, 548 U.S. 140, 147 (2006); Smith v.

20 McDonald, 597 F. App‘x 911, 913 (9th Cir. 2014)). Lipetzky asserts that the Ninth Circuit has

21 never applied harmless error analysis to determine whether Heck bars a Sixth Amendment claim,

22 and notes that several Ninth Circuit and district court decisions have dismissed such claims under

23 Heck without considering whether the error was harmless. Id. at 11.

24

Lipetzky also continues to argue that the Sixth Amendment claim fails because the state

25 court, not Lipetzky, set the date of the second appearance, and thus determined the length of the

26 delay in appointing counsel. Id. at 12–13. As for the state law claims, Lipetzky argues that

27 Plaintiffs have not alleged threats or coercion as required for a claim under the Bane Act, that they

28 have conceded that their statutory speedy trial rights were not violated, and that Lipetzky complied

10

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1 with her duties under section 27706 of the Government Code because her office represented

2 Plaintiffs at all ―stages of the proceedings‖ after they requested counsel. Id. at 13−14.

3 III. ANALYSIS

4

A. Legal Standard

5

A complaint may be dismissed for failure to state a claim on which relief can be granted

6 under Rule 12(b)(6) of the Federal Rules of Civil Procedure. ―The purpose of a motion to dismiss

7 under Rule 12(b)(6) is to test the legal sufficiency of the complaint.‖ N. Star Int’l v. Ariz. Corp.

8 Comm’n, 720 F.2d 578, 581 (9th Cir. 1983). Generally, a plaintiff‘s burden at the pleading stage

9 is relatively light. Rule 8(a) of the Federal Rules of Civil Procedure states that ―[a] pleading

10 which sets forth a claim for relief . . . shall contain . . . a short and plain statement of the claim

11 showing that the pleader is entitled to relief.‖ Fed. R. Civ. P. 8(a).

12

In ruling on a motion to dismiss under Rule 12(b)(6), the court analyzes the complaint and

13 takes ―all allegations of material fact as true and construe[s] them in the light most favorable to the

14 non-moving party.‖ Parks Sch. of Bus. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995).

15 Dismissal may be based on a lack of a cognizable legal theory or on the absence of facts that

16 would support a valid theory. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir.

17 1990). A complaint must ―contain either direct or inferential allegations respecting all the material

18 elements necessary to sustain recovery under some viable legal theory.‖ Bell Atl. Corp. v.

19 Twombly, 550 U.S. 544, 562 (2007) (citing Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101,

20 1106 (7th Cir. 1984)). ―A pleading that offers ‗labels and conclusions‘ or ‗a formulaic recitation

21 of the elements of a cause of action will not do.‘‖ Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

22 (quoting Twombly, 550 U.S. at 555). ―[C]ourts ‗are not bound to accept as true a legal conclusion

23 couched as a factual allegation.‘‖ Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S.

24 265, 286 (1986)). ―Nor does a complaint suffice if it tenders ‗naked assertion[s]‘ devoid of

25 ‗further factual enhancement.‘‖ Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557).

26 Rather, the claim must be ―‗plausible on its face,‘‖ meaning that the plaintiff must plead sufficient

27 factual allegations to ―allow[] the court to draw the reasonable inference that the defendant is

28 liable for the misconduct alleged.‖ Id. (quoting Twombly, 550 U.S. at 570).

11

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1

B. Heck v. Humphrey

2

What has come to be known as the ―Heck preclusion doctrine,‖ ―Heck bar,‖ or ―favorable-

3 termination requirement‖ is based on the following paragraph in the Supreme Court‘s opinion in

4 Heck v. Humphrey:

5

We hold that, in order to recover damages for allegedly

unconstitutional conviction or imprisonment, or for other harm

6

caused by actions whose unlawfulness would render a conviction or

sentence invalid, a § 1983 plaintiff must prove that the conviction or

7

sentence has been reversed on direct appeal, expunged by executive

order, declared invalid by a state tribunal authorized to make such

8

determination, or called into question by a federal court‘s issuance

of a writ of habeas corpus. A claim for damages bearing that

9

relationship to a conviction or sentence that has not been so

invalidated is not cognizable under § 1983. Thus, when a state

10

prisoner seeks damages in a § 1983 suit, the district court must

consider whether a judgment in favor of the plaintiff would

11

necessarily imply the invalidity of his conviction or sentence; if it

would, the complaint must be dismissed unless the plaintiff can

12

demonstrate that the conviction or sentence has already been

invalidated. But if the district court determines that the plaintiff‘s

13

action, even if successful, will not demonstrate the invalidity of any

outstanding criminal judgment against the plaintiff, the action

14

should be allowed to proceed, in the absence of some other bar to

the suit. 15

Heck v. Humphrey, 512 U.S. 477, 486–87 (1994) (footnotes omitted). The Ninth Circuit has

16

explained that under Heck, ―‗if a criminal conviction arising out of the same facts stands and is

17

fundamentally inconsistent with the unlawful behavior for which section 1983 damages are

18

sought, the 1983 action must be dismissed.‘‖ Beets v. County of Los Angeles, 669 F.3d 1038,

19

1042 (9th Cir. 2012) (quoting Smith v. City of Hemet, 394 F.3d 689, 695 (9th Cir. 2005) (en

20

banc)). Consequently, ―the relevant question is whether success in a subsequent § 1983 suit would

21

‗necessarily imply‘ or ‗demonstrate‘ the invalidity of the earlier conviction or sentence.‖ Smith v.

22

City of Hemet, 394 F.3d 689, 695 (9th Cir. 2005) (quoting Heck, 512 U.S. at 487).

23

1. Heck and Guilty Pleas 24

Both parties here oversimplify the application of Heck to convictions obtained through

25

plea agreements—Plaintiffs, by arguing that the doctrine ―does not apply to civil matters involving

26

criminal defendants whose convictions and sentences rest upon guilty pleas,‖ Opp‘n at 15 (citing

27

Lockett v. Ericson, 656 F.3d 892, 896 (9th Cir. 2011); Ove v. Gwinn, 264 F.3d 817, 823 (9th Cir.

28

12

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1 2001)), and Lipetzky, by arguing only that ―Heck does apply to individuals who plead guilty as

2 opposed to being convicted by a jury,‖ Reply at 10 (citing Radwan v. County of Orange, 519 F.

3 App‘x 490, 490–91 (9th Cir. 2013)). The parties‘ disagreement on this point reflects tension in the 4 case law applying Heck in the context of guilty and no-contest pleas.6

5

Some Ninth Circuit decisions have applied Heck to no-contest pleas. In Szajer v. City of

6 Los Angeles, the Ninth Circuit applied Heck to bar a § 1983 lawsuit alleging an unlawful search

7 where the plaintiff had pled no contest to possession of an illegal assault weapon discovered

8 during the disputed search, without explicitly discussing the issue of whether Heck applies to no-

9 contest pleas. Szajer, 632 F.3d 607, 612 (9th Cir. 2011). More recently, the court in Radwan cited

10 Szajer in support of its assertion that the Ninth Circuit ―ha[s] repeatedly found Heck to bar § 1983

11 claims, even where the plaintiff‘s prior convictions were the result of guilty or no contest pleas.‖

12 Radwan, 519 F. App‘x at 490–91. Similarly, the court in Chico Scrap Metal, Inc. v. Robinson

13 affirmed the district court‘s dismissal of § 1983 challenges to Department of Toxic Substances

14 Control clean-up orders that were mandatory consequences of no-contest misdemeanor plea

15 agreements. 560 F. App‘x 650, 651 (9th Cir. 2014). While the Ninth Circuit in that case did not

16 address the issue of no-contest pleas, the district court had rejected the plaintiffs‘ argument that

17 Heck did not apply because their ―state court conviction[s were] based on their nolo contendere

18 pleas, not the legal validity of the DTSC orders‖ that they challenged in their § 1983 action.

19 Chico Scrap Metal, Inc. v. Raphael, 830 F. Supp. 2d 966, 971 (E.D. Cal. 2011). The district court

20 held that case to be ―exactly the kind of action barred by Heck,‖ despite the defendants‘ nolo

21 contendere pleas. Id. at 972.

22

In Lockett v. Ericson, however, the Ninth Circuit held that Heck did not bar a § 1983 claim

23 for unlawful search because the plaintiff pled no contest to the charge on which the defendants

24 based their Heck preclusion argument. Lockett, 656 F.3d at 897. There, the plaintiff‘s neighbor

25 reported the plaintiff for drunk driving after the plaintiff left his car off the side of the road. Id. at

26

27

6 This Court has previously considered the application of Heck to convictions based on guilty and no-contest pleas in some detail in Ellis v. Thomas, 2015 WL 5915368 (N.D. Cal. Oct. 9, 2015), a

28

case which neither party discusses in their briefs here. Portions of the explanation of relevant law below are drawn from Ellis without further citation.

13

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1 894. Investigating officers found the front door to the plaintiff‘s house ajar and entered the house.

2 Id. They woke the plaintiff and administered field sobriety tests, which the plaintiff failed. Id.

3 After the trial court denied the plaintiff‘s motion to suppress the results of the sobriety test and

4 other observations the officers made in the plaintiff‘s home, the plaintiff pled no contest to a ―wet

5 reckless‖ driving violation under California Vehicle Code section 23103.5(a). Id. at 895.

6

The district court dismissed the plaintiff‘s § 1983 claim of unlawful search as barred by

7 Heck. Id. at 896. The Ninth Circuit reversed, relying principally on Ove v. Gwinn, a case in

8 which the Ninth Circuit held that Heck did not bar § 1983 plaintiffs who pled no contest to driving

9 under the influence from bringing a § 1983 lawsuit alleging that investigators used unqualified

10 individuals to withdraw blood for blood tests. The court in Lockett reasoned that because the

11 § 1983 plaintiff had pled no contest, his ―conviction ‗derive[d] from [his] plea[], not from [a]

12 verdict[] obtained with supposedly illegal evidence.‘‖ 656 F.3d at 896 (quoting Ove, 264 F.3d at

13 823) (all but first alteration in original). Accordingly, success on the plaintiff‘s § 1983 claim

14 would not imply the invalidity of the conviction because the ―conviction d[id] not in any way

15 depend on the legality of the search of his home.‖ Id. at 897 (internal quotation omitted). Ove, on

16 which Lockett relied, in turn relied on an example presented in Heck itself of a claim that would

17 not be barred under the doctrine:

18

For example, a suit for damages attributable to an allegedly

unreasonable search may lie even if the challenged search produced

19

evidence that was introduced in a state criminal trial resulting in the

§ 1983 plaintiff‘s still-outstanding conviction. Because of doctrines

20

like independent source and inevitable discovery, see Murray v.

United States, 487 U.S. 533, 539, 101 L. Ed. 2d 472, 108 S. Ct.

21

2529 (1988), and especially harmless error, see Arizona v.

Fulminante, 499 U.S. 279, 307–308, 113 L. Ed. 2d 302, 111 S. Ct.

22

1246 (1991), such a § 1983 action, even if successful, would not

necessarily imply that the plaintiff‘s conviction was unlawful. In

23

order to recover compensatory damages, however, the § 1983

plaintiff must prove not only that the search was unlawful, but that it

24

caused him actual, compensable injury, see Memphis Community

School Dist. v. Stachura, 477 U.S. 299, 308, 91 L. Ed. 2d 249, 106

25

S. Ct. 2537 (1986), which, we hold today, does not encompass the

―injury‖ of being convicted and imprisoned (until his conviction has

26

been overturned).

27 Heck, 512 U.S. at 487 n.7; see also Ove, 264 F.3d at 822 (quoting Heck).

28

The Ninth Circuit has since cited Lockett with approval. See Jackson v. Barnes, 749 F.3d

14

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1 755, 760 (9th Cir. 2014) (noting that in Lockett, ―a plaintiff who pled nolo contendre [sic] to

2 reckless driving was not Heck-barred from bringing a § 1983 claim based on an alleged unlawful

3 search because the outcome of the claim had no bearing on the validity of the plaintiff‘s plea‖),

4 cert. denied, 135 S. Ct. 980 (2015). Jackson presents arguably a clearer case of harmless error

5 than cases involving guilty pleas. There, plaintiff Frederick Jackson had initially been convicted

6 of murder at a trial that included statements obtained in violation of the Fifth Amendment. Id. at

7 758–59. The Ninth Circuit reversed that conviction on habeas review in 2004, and Jackson was

8 subsequently convicted again at a second trial that did not include the statements at issue. Id. at

9 759. Reviewing Jackson‘s § 1983 claim in 2014, the Ninth Circuit held that success on his civil

10 claim for violation of the Fifth Amendment would have no bearing on his conviction at the second

11 trial, and thus did not implicate Heck. Id. at 760–61.

12

Taken together, the precedent discussed above indicates that Heck‘s inapplicability to

13 certain cases involving guilty pleas is essentially an application of the harmless error exception

14 first recognized in Heck itself, or more generally, the rule that success on a claim must necessarily

15 imply the invalidity of the conviction in order to be barred by Heck. Where an alleged

16 constitutional violation relates only to evidence that might or might not be admissible despite the

17 error, might or might not be necessary to convict the defendant at trial, and regardless is not

18 necessary for the defendant to enter a guilty plea, then a successful claim that the evidence was

19 obtained in violation of the constitution would not necessarily imply the invalidity of the

20 conviction. Accordingly, in considering whether Heck bars claims of other constitutional

21 violations by defendants who have pled guilty to crimes, a court must look to what effect such a

22 violation would necessarily have on the validity of the conviction.

23

In order to determine how Heck, Lovett, and the other authority discussed above apply to

24 the present case, it is therefore necessary to understand the nature of the Sixth Amendment‘s

25 guarantee of counsel—specifically, the circumstances in which violations of that right ―would

26 necessarily imply the invalidity of [a criminal defendant‘s] conviction or sentence.‖ See Heck,

27 512 U.S. at 487.

28

15

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1

2. Suitability of Harmless Error Analysis to Other Sixth Amendment Claims

2

As Lipetzky notes in her reply brief, courts recognize two types of ineffective assistance of

3 counsel claims under the Sixth Amendment: claims under Strickland v. Washington, 466 U.S. 668

4 (1984), which require a showing of prejudice, and claims under United States v. Cronic, 466 U.S.

5 648 (1984), which involve circumstances ―‗circumstances so likely to prejudice the accused that

6 the cost of litigating their effect in a particular case is unjustified‘‖ and prejudice may be

7 presumed. See Wright v. Van Patten, 552 U.S. 120, 124–25 (2008) (per curiam) (discussing both

8 standards and quoting Cronic, 466 U.S. at 658); see also Mickens v. Taylor, 535 U.S. 162, 166

9 (2002) (discussing both standards). Whether Plaintiffs‘ claim here for failure to appoint counsel at

10 the required time is in fact an ineffective assistance claim, or is subject to the same rules as such

11 claims, is discussed separately below.

12

Looking first to Strickland, the Supreme Court there held that a person claiming ineffective

13 assistance of counsel must normally demonstrate likely prejudice as a result of his or her lawyer‘s

14 error, i.e., ―that there is a reasonable probability that, but for counsel‘s unprofessional errors, the

15 result of the proceeding would have been different.‖ 466 U.S. at 694. ―A reasonable probability

16 is a probability sufficient to undermine confidence in the outcome.‖ Id. In the years since

17 Strickland was decided, courts have recognized that that its requirement of probable prejudice is

18 not merely a question of standing or entitlement to relief, but instead a component of the

19 constitutional violation itself: if counsel‘s errors were not so significant as to cast doubt on the

20 outcome, counsel was not ―ineffective‖ within the meaning of the Sixth Amendment guarantee.

21 See United States v. Gonzalez-Lopez, 548 U.S. 140, 147 (2006) (―Counsel cannot be ‗ineffective‘

22 unless his mistakes have harmed the defense (or, at least, unless it is reasonably likely that they

23 have). Thus, a violation of the Sixth Amendment right to effective representation is not

24 ‗complete‘ until the defendant is prejudiced.‖); Mickens, 535 U.S. at 166 (―[D]efects in assistance

25 that have no probable effect upon the trial‘s outcome do not establish a constitutional violation.‖).

26

In Cronic, decided the same day as Strickland, the Supreme Court declined to require a

27 specific showing of probable prejudice in ―circumstances that are so likely to prejudice the

28 accused that the cost of litigating their effect in a particular case is unjustified.‖ Cronic, 466 U.S.

16

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1 at 658. As the first example of one such circumstance, the Court stated that the ―presumption that

2 counsel‘s assistance is essential requires us to conclude that a trial is unfair if the accused is denied

3 counsel at a critical stage of his trial.‖ Id. at 659; see also id. at 662 (considering whether the

4 criminal defendant was denied counsel at ―a critical stage of the prosecution‖). Other examples

5 include counsel‘s wholesale ―fail[ure] to subject the prosecution‘s case to meaningful adversarial

6 testing,‖ id. at 659 (citing Davis v. Alaska, 415 U.S. 308 (1974)), and a court appointing an out-of-

7 state lawyer—who was unwilling to represent the defendants due to his lack of time to prepare or

8 knowledge of local procedure—on the day of trial to represent multiple defendants accused of

9 capital crimes, id. at 659–60 (citing Powell v. Alabama, 287 U.S. 45 (1932)). The distinction that

10 the Cronic Court drew between such circumstances and claims that would require a showing of

11 probable prejudice under Strickland was not that no prejudice was required for a Cronic claim, but

12 rather that likely prejudice could be presumed from the nature of the error or absence of counsel.

13

Of course, not every violation of the Sixth Amendment‘s assistance of counsel clause

14 involves the right to effective assistance of counsel. In the separate context of a defendant‘s Sixth

15 Amendment right to paid counsel of his or her choosing, the Supreme Court has held that harmless

16 error analysis is not permissible. Gonzalez-Lopez, 548 U.S. at 152. The Court reasoned that the

17 right to paid counsel of the defendant‘s choosing is a freestanding constitutional guarantee,

18 independent of the defendant‘s right to a fair trial, and to subject a denial of that right to harmless

19 error analysis would negate the right to choose counsel so long as a defendant received competent

20 counsel. Id. at 147–48. Because the defendant‘s right is to counsel of his or her choice, not

21 merely competent counsel, determining the effect of the denial of that right would require

22 comparing all of the decisions that the preferred lawyer would have made throughout the trial to

23 the decisions that the actual lawyer did make, not merely identifying errors by the actual lawyer.

24 Id. at 150. Observing that ―[i]t is impossible to know what different choices the rejected counsel

25 would have made,‖ the Court held that denial of counsel of choice is a structural error not subject

26 to review for harmless error. Id.

27

Each of those types of claims—ineffective assistance demonstrated to be prejudicial under

28 Strickland, structurally ineffective assistance under Cronic, and denial of counsel of choice under

17

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1 Gonzalez-Lopez—would likely be barred by Heck if brought by a plaintiff who had been

2 convicted in the prosecution at issue, regardless of whether that conviction resulted from a guilty

3 plea. In the case of a Strickland claim, that result follows from the rule that ―a violation of the

4 Sixth Amendment right to effective representation is not ‗complete‘ until the defendant is

5 prejudiced.‖ See Gonzalez-Lopez, 548 U.S. at 147 (discussing Strickland claims). Accordingly,

6 where a criminal defendant pled guilty, ―the defendant must show that there is a reasonable

7 probability that, but for counsel‘s errors, he would not have pleaded guilty and would have

8 insisted on going to trial‖; without such a showing, there is no violation of the Sixth Amendment.

9 Hill v. Lockhart, 474 U.S. 52, 59 (1985). A person asserting a Strickland claim therefore cannot

10 show that he or she was denied effective assistance of counsel without also necessarily implying 11 the invalidity of his or her conviction, even if it resulted from a guilty plea.7 Essentially the same

12 analysis applies to a Cronic claim, except that likely prejudice need not be explicitly shown

13 because it can be inferred from the nature of the violation—even still, success on a Cronic claim

14 necessarily implies the invalidity of the conviction because the presumption arising from such a

15 violation ―requires [a court] to conclude that a trial is unfair.‖ Cronic, 466 U.S. at 659 (emphasis

16 added). And with respect to claims for violation of the right to choice of counsel, the Supreme

17 Court has held that a denial of that right is a structural error requiring reversal, with no occasion

18 for harmless error review. See Gonzalez-Lopez, 548 U.S. at 150, 152. In each of those contexts,

19 because a violation cannot be harmless, success on the claim would necessarily imply the

20 invalidity of a conviction, and thus implicate the Heck doctrine, regardless of whether the

21 conviction resulted from a guilty plea.

22

In other circumstances, however, the Supreme Court has held that a Sixth Amendment

23

24 7 Analysis of a Strickland claim might in some ways resemble harmless error review, because the

25

court must examine whether there is a reasonable probability that the attorney‘s error prejudiced the criminal defendant. The distinction here, however, is that if the attorney‘s error was harmless,

26

there was no constitutional violation. In other words, an actual violation of the Sixth Amendment under Strickland can never be harmless, because if it was, it would not be a violation. See

27

Gonzalez-Lopez, 548 U.S. at 147. The analysis is therefore distinguishable from, for example, a violation of the Fourth Amendment in the collection of evidence, which may be harmless to the

28

defendant‘s case—and thus no basis for reversal—but nevertheless remains a constitutional violation.

18

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1 violation can constitute harmless error. One context where the Court has explicitly applied that

2 doctrine is ―where the evil caused by a Sixth Amendment violation is limited to the erroneous

3 admission of particular evidence at trial.‖ Satterwhite v. Texas, 486 U.S. 249, 257 (1988) (citing,

4 e.g., Moore v. Illinois, 434 U.S. 220 (1977); Milton v. Wainwright, 407 U.S. 371 (1972)); see also

5 United States v. Wade, 388 U.S. 218, 236−37 (1967) (finding the absence of counsel at a post-

6 indictment lineup involving witnesses who later made courtroom identifications to be harmless

7 error, despite holding that the lineup ―was a critical stage of the prosecution at which [the

8 defendant] was ‗as much entitled to such aid (of counsel) . . . as at the trial itself‘‖ (citation

9 omitted)). It would follow that where a Sixth Amendment violation only affected the procurement

10 of evidence—for example, as in Satterwhite, where a defendant was not able to consult with

11 counsel before undergoing a psychiatric evaluation—a defendant who pled guilty could in some

12 cases bring a subsequent civil claim under § 1983 without implicating Heck, because showing

13 such a violation would not necessarily imply the invalidity of his or her conviction. Cf. Lockett,

14 656 F.3d at 897 (holding that Heck does not bar a claim that a police search violated of the Fourth

15 Amendment where a defendant pled guilty, and the evidence obtained from the search thus was

16 not the basis for his conviction).

17

Also, in one decision issued fourteen years before Cronic‘s explanation of the per se rule

18 for denial of counsel at critical stages, the Supreme Court held that a preliminary hearing, as used

19 in the Alabama courts, was a ―critical stage‖ at which counsel was required, but that denial of

20 counsel at that hearing was subject to harmless error review. Coleman v. Alabama, 399 U.S. 1,

21 9−10 (1970).

22

Plaintiffs here rely in part on the Ninth Circuit‘s decision in Ayala v. Wong, which adopted

23 the Fourth Circuit‘s determination that the Supreme Court has used the phrase ―critical stage‖ to

24 mean two different things in the context of when a criminal defendant has the right to counsel as

25 compared to in the context of when a deprivation of that right constitutes structural error. Ayala,

26 756 F.3d 656, 673 (9th Cir. 2013) (discussing United States v. Owen, 407 F.3d 222, 227 (4th Cir.

27

28

19

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1 2005), cert. denied, 546 U.S. 1098 (2006)).8 In other words, a proceeding might be a ―critical

2 stage‖ at which a defendant has the right to counsel, but might not be a ―critical stage‖ such that

3 failure to provide counsel warrants per se reversal without the need to specifically show probably

4 prejudice. See id. The Supreme Court subsequently reversed Ayala on other grounds, without

5 addressing the question of whether a ―critical stage‖ for the right to counsel is necessarily also a

6 ―critical stage‖ for the purpose of finding structural error. See generally Davis v. Ayala, 135 S. Ct. 7 2187 (2015).9

8

Other decisions by the Ninth Circuit, however, have applied a per se rule to denial of

9 counsel at a ―critical stage‖ without indicating that a court must examine which type of ―critical

10 stage‖ applies to the case at hand. For example, the most recent published opinion on the subject

11 suggests a clearer rule than that discussed in Ayala:

12

Most trial errors are subject to harmless-error analysis. However,

13

certain errors fall within the class of ―structural defects in the constitution of the trial mechanism‖ that ―defy analysis by

14

‗harmless-error‘ standards.‖ Arizona v. Fulminante, 499 U.S. 279, 309 (1991). ―[T]he Sixth Amendment right to counsel is among

15

those ‗constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error.‘‖ United States v. Hamilton,

16

391 F.3d 1066, 1070 (9th Cir. 2004) (quoting Chapman v. California, 386 U.S. 18, 23 & n. 5 (1967)). ―[T]he absence of

17

counsel during a critical stage of a criminal proceeding is precisely the type of ‗structural defect‘ to which no harmless-error analysis

18

can be applied.‖ 391 F.3d at 1070 (citation omitted).

19 United States v. Yamahiro, 788 F.3d 1231, 1235–36 (9th Cir. 2015) (holding that absence of

20 counsel at a victim allocution during the sentencing phase was structural error requiring per se

21 reversal); see also, e.g., United States v. Benford, 574 F.3d 1228, 1231−32 (9th Cir. 2009)

22

23

8 Two other circuits have also adopted the reasoning of Owen or cited it with approval. See Sweeney v. United States, 766 F.3d 857, 861 n.3 (8th Cir. 2014); Ditch v. Grace, 479 F.3d 249,

24

255−56 (3d Cir. 2007) 9 The Ninth Circuit also suggested that harmless error review is appropriate for denial of counsel

25

at a critical stage in United States v. Perez, a case cited by Plaintiffs here, although its discussion of that issue is dicta in light of the holding that ―there [was] no constitutional right for counsel to

26

be present‖ at the initial appearance in question. United States v. Perez, 776 F.2d 797, 800 (9th Cir. 1985), overruled on other grounds by United States v. Cabaccang, 332 F.3d 622, 634−35 (9th

27

Cir. 2003). Perez was decided just months after the Supreme Court issued its opinions in Strickland and Cronic and does not cite or acknowledge either of those decisions, instead relying

28

on older authority such as Coleman in its discussion of harmless error. See Perez, 776 F.2d at 800.

20

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1 (―[A]lthough most ineffective assistance of counsel claims require courts to conduct a prejudice

2 inquiry [under Strickland], a complete denial of counsel at a critical stage does not.‖); Musladin v.

3 Lamarque, 555 F.3d 830, 837−38 (9th Cir. 2009) (holding that Cronic‘s rule of automatic reversal

4 where counsel is denied at a critical stage remains binding despite Satterwhite and Fulminante);

5 Hamilton, 391 F.3d at 1071 (holding that the absence of counsel at a suppression hearing was

6 structural error requiring per se reversal). Moreover, despite a number of relatively recent

7 Supreme Court opinions recounting Cronic‘s rule that denial of counsel at a critical stage is

8 structural error—e.g., Wright, 552 U.S. at 124−25; Mickens, 535 U.S. at 166—this Court is aware

9 of no decision by the Supreme Court drawing any distinction between different types of critical

10 stages in the manner of the Fourth and Ninth Circuit‘s Owen and Ayala decisions.

11

3. Application of Heck to Plaintiffs’ Sixth Amendment Claim

12

The question here is how a claim for failure to appoint counsel to an indigent defendant at

13 the required stage of the proceedings under Rothgery fits into the framework discussed above.

14 The Ninth Circuit held on appeal that the Supreme Court set forth the appropriate standard for

15 examining delay in appointment of counsel in Rothgery: ―counsel must be appointed within a

16 reasonable time after attachment to allow for adequate representation at any critical stage before

17 trial, as well as at trial itself.‖ Rothgery, 554 U.S. at 212; see Farrow, 637 F. App‘x at 988

18 (quoting Rothgery). The Court is not aware of any authority specifically considering whether

19 failure to appoint counsel within the timeframe required by Rothgery is subject to harmless error 20 analysis, or how Heck applies to such claims.10

21

Plaintiffs here present two arguments as to why the delay in appointing counsel violated

22 their rights under the Sixth Amendment: (1) that the first appearance was a critical stage at which

23 Plaintiffs were denied counsel; and (2) that even if the first appearance was not a critical stage, the

24 delay in appointing counsel after attachment of the right at the first appearance was unreasonable.

25 See TAC ¶ 57; Opp‘n at 16. Plaintiffs argue that harmless error review is appropriate as to both

26

27

10 Rothgery was itself a § 1983 case, but the criminal charges against the plaintiff had been dismissed after he was appointed counsel. See Rothgery, 554 U.S. at 196−97. The Heck doctrine

28

therefore had no bearing on that case, because there was no underlying conviction or sentence at risk of being impliedly invalidated.

21

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1 versions of their claim, and contend that they can therefore show a violation of the Sixth

2 Amendment and obtain nominal damages even if the error did not affect the outcome of their

3 prosecutions. See Opp‘n at 16 & n.6. The Court addresses Plaintiffs‘ two theories of violation in

4 turn.

5

a. Denial of Counsel at a Critical Stage

6

Fortunately, the case at hand does not require this Court to wade into the question of

7 whether different definitions of the term ―critical stage‖ exist for different purposes, or, for that

8 matter, the precedential value of Ayala after its reversal on other grounds by the Supreme Court.

9 Even if some ―critical stages‖ are not actually critical for the purpose of finding structural error,

10 the appearances at issue here are not among those exceptions.

11

The Ninth Circuit‘s decision in this case held that Plaintiffs‘ second court appearances

12 were critical stages ―because the plaintiffs entered pleas at that hearing,‖ although it affirmed the

13 Court‘s holding that the first appearance was not a critical stage. Farrow, 637 F. App‘x at 988

14 (citing White v. Maryland, 373 U.S. 59, 60 (1963)). Plaintiffs now renew their argument that the 15 first appearance was also a critical stage,11 based on a new allegation that Plaintiffs had the right

16 under California law to enter a plea at that hearing. See Opp‘n at 5−6 (citing Hamilton v.

17 Alabama, 368 U.S. 52 (1961)). Hamilton, the case on which Plaintiffs rely, held that per se

18 reversal was warranted, without need to inquire into actual prejudice. 368 U.S. at 54. White, one

19 of the Supreme Court cases on which the Ninth Circuit relied here, similarly held that a hearing at

20 which a defendant entered a plea was a critical stage, and therefore ―we do not stop to determine

21

22 11 Plaintiffs argue in their opposition that the Court‘s previous conclusion that the waiting period

23

between appearances was not itself a critical stage is not the ―law of the case‖ because the Ninth Circuit did not address it, but Plaintiffs do not present any reason not previously argued why this

24

Court should depart from its prior holding on that issue. See Opp‘n at 12−15; Aug. 2013 Order at 25−26 (concluding that the waiting period was not itself a critical stage). Moreover, although

25

Plaintiffs suggest that the Court could reconsider that issue, they state that ―the question in this context is not whether the 5-to-13-day waiting period is a ‗critical stage,‘‖ but rather whether

26

counsel was appointed within a reasonable time after attachment. Opp‘n at 15 (emphasis added). The Court‘s analysis of whether Plaintiffs‘ can pursue a claim for lack of representation at a

27

critical hearing is therefore limited to the first appearance, which Plaintiffs more clearly argue that the Court should reconsider in light of new allegations. See id. at 5−6 (subsection titled ―The first

28

Appearance in California Court is a ‗Critical Stage‘ of the Proceedings as now pled‖ (capitalization as in original)).

22

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1 whether prejudice resulted: . . . the judgment below must be and is reversed.‖ White, 373 U.S. at 2 61 (citing Hamilton, 368 U.S. at 55).12 Accordingly, assuming for the sake of argument that

3 Plaintiffs are correct that their first appearances were critical stages based on their rights to enter

4 pleas, then Hamilton, White, and Cronic all indicate that failure to provide counsel at that

5 appearance would be a structural error requiring per se reversal. Success on this theory would

6 necessarily imply the invalidity of Plaintiffs‘ convictions, and to the extent that Plaintiffs‘ § 1983 7 claim relies on that theory, it must therefore be dismissed under Heck.13

8

b. Failure to Appoint Counsel Within a Reasonable Time

9

In addition to their contention that they were denied counsel at a critical stage, Plaintiffs

10 also allege that their rights under the Sixth Amendment were violated by Lipetzky‘s failure to

11 represent them within ―a reasonable time []after‖ the first appearance. TAC ¶ 57; Opp‘n at 6−12.

12 The Ninth Circuit instructed this Court to reconsider that issue on remand in light of Rothgery‘s

13 rule that counsel must be appointed ―within a ‗reasonable time after attachment to allow for

14 adequate representation at any critical stage.‘‖ See Farrow, 637 F. App‘x at 988−89 (quoting

15 Rothgery, 554 U.S. at 212)). Discussing this Court‘s error in requiring a showing of actual

16 prejudice, the Ninth Circuit noted Supreme Court precedent finding Sixth Amendment violations

17 on the lesser showing of ―‗grave potential for prejudice‘‖ or ―absence of counsel that ‗may affect

18 the whole trial.‘‖ Id. (quoting Wade, 388 U.S. at 236; Hamilton, 368 U.S. at 54).

19

In a 1970 case where a criminal defendant was adequately represented at his first trial but

20 did not meet with counsel regarding a second trial until ―a few minutes before‖ it began, the

21 Supreme Court affirmed a denial of habeas corpus, noting that it was ―not disposed to fashion a

22 per se rule requiring reversal of every conviction following tardy appointment of counsel.‖

23

24

12 In People v. Cox, a case cited in Plaintiffs‘ opposition, a California appellate court held that denial of counsel at an arraignment at which pleas were entered was subject to harmless error

25

review by analogy to Coleman, which considered the separate issue of denial of counsel at a preliminary hearing where pleas were not entered or permitted to be entered. People v. Cox, 193

26

Cal. App. 3d 1434, 1440 (1987); see Coleman, 399 U.S. at 26 (Stewart, J., dissenting). This Court is not bound by California state court decisions on issues of federal law, and respectfully disagrees

27

with Cox as inconsistent with White and Hamilton, if not also with Cronic. 13 As a separate and sufficient basis for dismissal of this theory, the Court also holds that Plaintiffs

28

have not shown any right under California law to enter pleas at their first court appearances, as discussed below in the context of Plaintiffs‘ Bane Act claim.

23

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1 Chambers v. Maroney, 399 U.S. 42, 53−54 (1970). Chambers does not fully resolve the issue,

2 because it is not clear whether the Court intended that delayed appointment of counsel in violation

3 of the Sixth Amendment might not always be cause for reversal (which would suggest that Heck

4 does not apply), or instead that not every delay in appointing counsel violates the Sixth

5 Amendment (which would provide no guidance regarding the Heck issue). To the extent that it is

6 relevant, though, and particularly given the likelihood that appointing counsel mere minutes before

7 trial would violate the reasonableness standard articulated more recently in Rothgery, the

8 Chambers decision suggests that a Rothgery violation does not require per se reversal of a

9 conviction.

10

Moreover, in reversing this Court‘s previous order, the Ninth Circuit cited and relied on

11 the Supreme Court‘s decision in Wade. See Farrow, 637 F. App‘x at 988 (citing Wade, 388 U.S.

12 at 236−37). In that case, the Supreme Court held that ―there can be little doubt that for Wade the

13 postindictment lineup was a critical stage of the prosecution at which he was ‗as much entitled to

14 such aid (of counsel) * * * as at the trial itself,‘‖ and that denial of counsel at the lineup therefore

15 violated Wade‘s rights under the Sixth Amendment. Wade, 388 U.S. at 236−37 (quoting Powell,

16 287 U.S. at 57). The Court nevertheless reversed the Fifth Circuit‘s determination that the

17 violation warranted a new trial. Id. at 239−43. The Supreme Court analyzed that violation in an

18 evidentiary context, addressing the extent to which the uncounseled lineup identification tainted

19 in-court identification by the same witnesses. Wade, 388 U.S. at 239–42. The Court remanded for

20 the district court to hold a hearing ―to determine whether the in-court identifications had an

21 independent source, or whether, in any event, the introduction of the evidence was harmless

22 error.‖ Id. at 242. Although the evidentiary context of Wade is not precisely analogous to the case

23 at hand, Wade nevertheless indicates that Sixth Amendment violations based on failure to provide

24 appointed counsel at times when a defendant is entitled to counsel do not necessarily invalidate a

25 conviction. And while the Ninth Circuit here did not address that aspect of Wade‘s holding, the

26 Circuit‘s reliance on Wade tends to suggest that similar principles apply to this case.

27

The Court is not persuaded by Lipetzky‘s argument that the Ninth Circuit has asked this

28 Court to analyze Plaintiffs‘ claims in ―the Strickland/Cronic framework.‖ See, e.g., Reply at 3.

24

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1 The panel‘s memorandum decision cites neither of those cases. See generally Farrow, 637 F.

2 App‘x 986. Moreover, it is not clear that the same standards apply to a case involving delayed

3 appointment of counsel, like this case, as would apply to cases involving ineffective assistance of

4 counsel, as in Strickland and Cronic. Here, the Ninth Circuit held that this Court erred in

5 requiring Plaintiffs ―to allege actual prejudice.‖ Id. at 988. Although both Strickland and Cronic

6 set forth standards of proof that require something less than an explicit showing of prejudice, that

7 lesser burden is based on concerns regarding the feasibility and efficiency of proving prejudice by

8 a preponderance of the evidence, not on a principle that prejudice is not required. See Strickland,

9 466 U.S. at 693−96 (―The result of a proceeding can be rendered unreliable, and hence the

10 proceeding itself unfair, even if the errors of counsel cannot be shown by a preponderance of the

11 evidence to have determined the outcome.‖); Cronic, 466 U.S. at 658 (―There are, however,

12 circumstances that are so likely to prejudice the accused that the cost of litigating their effect in a

13 particular case is unjustified.‖). In a more recent decision, the Supreme Court characterized

14 Strickland as requiring ―proof of both deficient performance and prejudice to the defense,‖ and

15 described Cronic as establishing circumstances in which prejudice can be presumed. Bell v. Cone,

16 535 U.S. 685, 696−97 (2002) (emphasis added). The Ninth Circuit‘s determination that prejudice

17 is not required in this case, which is based on delayed appointment, is not consistent with the

18 prejudice requirements that the Supreme Court set forth in Strickland and Cronic, which require a

19 showing of prejudice at least by inference in cases based on ineffective assistance. Those cases

20 therefore do not set the standard applicable here.

21

Taking into account Wade, Chambers, and the Ninth Circuit‘s instructions on appeal, the

22 Court holds that success on a claim for failure to appoint counsel within a reasonable time after

23 attachment would not necessarily imply the invalidity of Plaintiffs‘ convictions in state court. To

24 the extent that Plaintiffs‘ § 1983 claim is based on that theory of violation of the Sixth

25 Amendment, it is not barred by Heck.

26

C. Reasonableness of Delay

27

―The Supreme Court did not decide in Rothgery what constitutes a reasonable time to

28 appoint counsel after attachment.‖ Clark v. State, No. 03-09-00644-CR, 2011 WL 2651902, at *5

25

Case 3:12-cv-06495-JCS Document 107 Filed 04/28/17 Page 26 of 32

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1 (Tex. Ct. App. July 8, 2011). Indeed, the Rothgery Court explicitly disclaimed any intent to define

2 that standard:

3

Our holding is narrow. We do not decide whether the 6–month delay

4

in appointment of counsel resulted in prejudice to Rothgery‘s Sixth Amendment rights, and have no occasion to consider what

5

standards should apply in deciding this. We merely reaffirm what we have held before and what an overwhelming majority of

6

American jurisdictions understand in practice: a criminal defendant‘s initial appearance before a judicial officer, where he

7

learns the charge against him and his liberty is subject to restriction, marks the start of adversary judicial proceedings that trigger

8

attachment of the Sixth Amendment right to counsel.

9 Rothgery, 554 U.S. at 213 (emphasis added); see also id. at 212 n.15 (―We do not here purport to

10 set out the scope of an individual‘s postattachment right to the presence of counsel. It is enough

11 for present purposes to highlight that the enquiry into that right is a different one from the

12 attachment analysis.‖)

13

In Rothgery itself, the parties reached a settlement agreement after the Supreme Court

14 issued its decision, and no court in that case had reason to examine the issue further. See Agreed

15 Stipulation of Dismissal with Prejudice, Rothgery v. Gillespie County, No. A-CV-456-LY, ECF

16 Doc. No. 87 (W.D. Tex. Apr. 30, 2009). As noted in this Court‘s previous orders, a district court

17 in Louisiana has considered this issue and held that a forty-day delay in appointing counsel was

18 not constitutionally unreasonable, but that court used a standard of actual prejudice that the Ninth

19 Circuit has now rejected. See Grogen v. Gautreaux, No. 12-0039-BAJ-DLD, 2012 U.S. Dist.

20 LEXIS 120411, at *9−11 (M.D. La. July 11, 2012), report and recommendation adopted, 2012

21 U.S. Dist. LEXIS 120404 (M.D. La. Aug. 24, 2012). Also noted in this Court‘s previous orders, a

22 district court in Texas determined ―that [an] approximate two-month delay in receiving court-

23 appointed counsel fails to rise to the level of a constitutional violation,‖ but provided no analysis

24 as to how it reached that decision. See Hawkins v. Montague County, No. 7:10-CV-19-O, 2010

25 WL 4514641, at *12 (N.D. Tex. Nov. 1, 2010). With the exception of Grogen, which is not

26 consistent with the Ninth Circuit‘s decision here, this Court not aware of any decision articulating

27 a standard by which to examine whether a delay in appointing counsel is reasonable within the

28 meaning of Rothgery.

26

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United States District Court Northern District of California

1

In the absence of such guidance, the Court holds for the purpose of the present motion that

2 the reasonableness of a delay in appointing counsel after attachment depends on the totality of the

3 circumstances, including the time needed to prepare for an upcoming critical stage—but not

4 limited to that factor. To focus only on proximity to a critical stage would all but negate the

5 significance of attachment, the importance of which the Supreme Court emphasized in Rothgery,

6 where the Court acknowledged that ―a defendant subject to accusation after initial appearance is

7 headed for trial and needs to get a lawyer working, whether to attempt to avoid that trial or to be

8 ready with a defense when the trial date arrives.‖ Rothgery, 554 U.S. at 210. Indeed, the facts of

9 Rothgery illustrate the value of counsel even when a defendant does not face an impending

10 adversarial proceeding: soon after appointment, counsel was able to secure a bail reduction for

11 Walter Rothgery that allowed him to get out of jail. Id. at 196−97. Counsel thereafter

12 demonstrated that Rothgery had never been convicted of a felony—a key predicate of the felon-in-

13 possession charge that he faced—and the district attorney dismissed the indictment. Id. It is not

14 clear from the Rothgery opinion that any critical stage of the proceeding was imminent, but that in

15 no way diminishes the value of appointed counsel to protect Walter Rothgery‘s process and liberty

16 interests after the right had attached.

17

The broad standard of reasonableness that the Court finds applicable does not lend itself to

18 resolution on the pleadings. Plaintiffs‘ complaint here alleges that Lipetzky ―arbitrarily withheld

19 legal representation . . . for a period of 5 to 13 days‖ after the right attached—seven days in the

20 case of Wade, and thirteen days in the case of Farrow. TAC ¶¶ 1, 29, 41. Nothing on the face of

21 the complaint shows that delay to be reasonable. For the purpose of the present motion to dismiss,

22 the Court holds that Plaintiffs have plausibly alleged that the delay was unreasonable, and

23 therefore violated their Sixth Amendment rights to appointed counsel as articulated in Rothgery.

24 To the extent that Plaintiffs‘ § 1983 claim is based on a theory of unreasonable delay after 25 attachment, the motion to dismiss is DENIED.14 Of course, if Plaintiffs prevail on this claim, their

26

27

14 Lipetzky also argued that she cannot be held responsible for the state court‘s decisions regarding how long to continue Plaintiffs‘ arraignments, which, she contends, determined the delay in

28

appointment. It is not clear why Lipetzky could not have provided counsel to Plaintiffs during the intervening period before the second hearing, after the court ―referred the matter to the public

27

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United States District Court Northern District of California

1 ―compensable injury . . . does not encompass the ‗injury‘ of being convicted [or] imprisoned.‖

2 Heck, 512 U.S. at 487 n.7.

3

D. State Law Claims

4

Because Plaintiffs may proceed on their federal claim, the Court‘s previous holding that it

5 lacked jurisdiction over the related state law claims no longer stands. Plaintiffs‘ two claims under

6 California law are therefore discussed below.

7

1. Civil Code Section 52.1

8

Section 52.1 of the California Civil Code, also known as the Bane Act, creates a right of

9 action against any person who ―interferes by threat, intimidation, or coercion . . . with the exercise

10 or enjoyment by any individual or individuals of rights secured by the Constitution or laws of the

11 United States, or . . . of this state.‖ Cal. Civ. Code § 52.1(a) (defining the conduct prohibited); see

12 also id. § 52.1(b) (creating private right of action).

13

Plaintiffs contend that Lipetzky colluded with the judges of the Contra Costa Superior

14 Court to interfere with Plaintiffs‘ speedy trial rights under California law, including the right to a

15 preliminary examination ―within 10 court days of the date the defendant is arraigned or pleads,

16 whichever occurs later.‖ Cal. Penal Code § 859b. Plaintiffs do not dispute, however, that there

17 was no actual violation of their rights under that law, because they have not alleged any improper

18 delay after the entry of a plea at the further arraignment hearing. See May 2013 Order at 27−28

19 (dismissing Plaintiffs‘ claim for violation of statutory speedy trial rights); Mot. at 14; Opp‘n at 22.

20 Instead, Plaintiffs argue that by depriving Plaintiffs of their right to enter a plea at the first hearing,

21 or conditioning that right on declining the Sixth Amendment right to appointed counsel, the

22 process interfered with their right to set the speedy trial clock in motion. See TAC ¶ 59; Opp‘n at

23 22. There are at least two problems with this theory.

24

25 defender.‖ Although Plaintiffs‘ allege that the written policy of the public defender‘s office called

26

for staff to meet with criminal defendants while in custody before further arraignment, see TAC ¶ 4, they also allege that neither of them received counsel before their further arraignments, id.

27

¶¶ 27, 29, 36, 41. See also Cal. Gov‘t Code § 27706 (providing that the public defender shall represent indigent defendants upon order of the court or ―[u]pon request of the defendant.‖);

28

Joshua P. v. Superior Court, 226 Cal. App. 4th 957, 963−64 (2014) (discussing the ―upon request‖ prong of the statute and the fact that ―appointment by the court [is] not required‖).

28

Case 3:12-cv-06495-JCS Document 107 Filed 04/28/17 Page 29 of 32

United States District Court Northern District of California

1

First, although Plaintiffs state in their present complaint that ―California criminal

2 defendants have an absolute right to enter a not-guilty plea at their first appearance in a California

3 Court,‖ TAC ¶ 6, they cite no authority so holding, and the Court need not accept legal

4 conclusions as true in evaluating the sufficiency of a pleading. Twombly, 550 U.S. at 555.

5 Section 988 of the California Penal Code, cited in Plaintiffs‘ opposition brief, see Opp‘n at 5,

6 states in part that an arraignment ―consists in . . . asking the defendant whether the defendant

7 pleads guilty or not guilty,‖ but does not on its face prohibit the continued arraignment or ―further

8 arraignment‖ process employed here, where the court continued the portion of the arraignments at

9 which Plaintiffs were asked for their pleas to their second court appearances. See Cal. Penal Code 10 § 988.15 Having not shown any right to enter a plea at the first appearance, Plaintiffs cannot

11 proceed on the theory that denial of that opportunity impermissibly interfered with their right to

12 set in motion the speedy trial rights premised on the entry of a plea.

13

Second, California court have held that ―where coercion is inherent in the . . . violation [of

14 rights] alleged,‖ section 52.1 ―requires a showing of coercion independent from the coercion

15 inherent in the [violation] itself,‖ because ―the multiple references to violence or threats of

16 violence in the statute serve to establish the unmistakable tenor of the conduct that section 52.1 is

17 meant to address.‖ Shoyoye v. County of Los Angeles, 203 Cal. App. 4th 947, 959 (2012). Here,

18 Plaintiffs argue (but do not explicitly allege in their complaint) that ―Sheriff [sic] deputies literally

19 ordered these criminal detainees out of the courtroom and into the jail to await appointed counsel,

20 which physically prevented them from entering a plea or asserting their statutory rights.‖ Opp‘n at

21 22. Even if Plaintiffs had alleged in their complaint that they received such orders from sheriff‘s

22 deputies, the connection between those orders and the delay in Plaintiffs‘ opportunity to enter a

23 plea is tenuous at best. The Bane Act requires interference with rights ―by threat, intimidation, or

24 coercion.‖ Cal. Civ. Code § 52.1 (emphasis added). Here, the delay was caused by the judge‘s

25

26 15 The practice guide also cited in Plaintiffs‘ brief—which in relevant part appears to describe

27

typical procedures rather a defendant‘s procedural rights—is not a source of legal authority establishing rights under California law. See Opp‘n at 5−6 (quoting Elena Condes, Arraignment,

28

California Law and Procedure in Practice § 6.1 at 128 (CEB 2013) (stating that an arraignment includes the opportunity to enter a plea and ―is the defendant‘s first court appearance)).

29

Case 3:12-cv-06495-JCS Document 107 Filed 04/28/17 Page 30 of 32

United States District Court Northern District of California

1 order continuing the arraignment, not by the deputies ordering Plaintiffs into custody during the

2 intervening period; the same delay would have occurred if no deputies had been present and

3 Plaintiffs had been free to leave the courtroom on their own recognizance. Plaintiffs‘ detention is

4 not a component of the deprivation of rights that they have asserted. Plaintiffs therefore have not

5 alleged a deprivation by coercion within the meaning of section 52.1.

6

The Court finds that leave to amend would be futile and GRANTS Lipetzky‘s motion to

7 dismiss this claim with prejudice. The Court does not reach the question of whether the state

8 court‘s decision of when to allow Plaintiffs to enter a plea can be attributed to Lipetzky based on

9 the facts alleged.

10

2. Government Code Section 27706

11

Plaintiffs‘ final claims seeks a writ of mandate pursuant to sections 1085 and 1086 of the

12 California Code of Civil Procedure to compel Lipetzky to comply with section 27706 of the

13 California Government Code, which Plaintiffs contend requires her ―to represent all indigent, in

14 custody defendants by appearing at the first appearance of all indigent, in-custody criminal

15 defendants, or at a reasonable time thereafter.‖ TAC ¶ 62. Section 27706 reads in relevant part as

16 follows:

17

Upon request of the defendant or upon order of the court, the public

defender shall defend, without expense to the defendant . . . any

18

person who is not financially able to employ counsel and who is

charged with the commission of any contempt or offense triable in

19

the superior courts at all stages of the proceedings, including the

preliminary examination. The public defender shall, upon request,

20

give counsel and advice to such person about any charge against the

person upon which the public defender is conducting the defense

21

. . . .

22 Cal. Gov‘t Code § 27706(a). The parties devote minimal argument to this claim. See Mot. at

23 14−15; Opp‘n at 23−24; Reply at 14. Lipetzky argues only that Plaintiffs have not alleged a

24 breach of her duties under section 27706, and does not separately address whether a writ of

25 mandate is appropriate under these circumstances.

26

Lipetzky contends, without citation to authority, that she ―could not ‗represent‘ Plaintiffs

27 until such time as the state court appointed her office to do so, which occurred at the second

28 appearance.‖ Reply at 14. California law does not support that position:

30

Case 3:12-cv-06495-JCS Document 107 Filed 04/28/17 Page 31 of 32

United States District Court Northern District of California

1

The public defender is required by statute to determine whom to

represent. Government Code section 27706, subdivision (a),

2

provides that ―[u]pon request of the defendant or upon order of the

court, the public defender shall defend [indigent defendants.]‖

3

(Italics added.) . . . ―In determining whether to provide the services

of his office, the public defender ‗exercises an original power vested

4

in him by statute, not superior to but coequal with the power of the

court‘ to determine whether a person is entitled to be represented by

5

the public defender. [Citation.] The ‗Upon request‘ condition of

section 27706, subdivision (a), is an important alternative

6

circumstance to formal court appointment to entitle a person to

representation by the public defender and cannot be read out of the

7

statute . . . .‖ (In re Brindle (1979) 91 Cal. App. 3d 660, 681 [154

Cal. Rptr. 563].) Not only is appointment by the court not required,

8

the court ―cannot challenge the public defender‘s decision that a

person is entitled to be represented by him . . . .‖ (Id. at p. 681, 154

9

Cal. Rptr. 563.)

10 Joshua P. v. Superior Court, 226 Cal. App. 4th 957, 963–64 (2014) (alterations in original, except

11 second brackets and second ellipsis). The failure of the state court to appoint counsel did not

12 absolve Lipetzky of her duty under section 27706 to represent Plaintiffs after they requested

13 counsel.

14

Lipetzky also argues that section 27706‘s description of the duty as applying to ―all stages

15 of the proceedings‖ acts as a limitation, and that because the state court continued the

16 arraignments immediately after Plaintiffs requested counsel, no ―stages‖ occurred before counsel

17 was appointed at Plaintiffs‘ second court appearances. Reply at 14. The statute‘s phrasing of ―all

18 stages‖ is broader than the ―critical stages‖ at which counsel is required under the Sixth

19 Amendment, and its requirement that the public defender ―give counsel and advice to such person

20 about any charge‖ suggests that it contemplates more than merely appearance at court proceedings

21 on the defendant‘s behalf. See Cal. Gov‘t Code § 27706(a). For the purpose of the present

22 motion, the Court holds that section 27706‘s requirement that the public defender represent

23 indigent defendants upon request or appointment is not limited to court appearances. This holding

24 is without prejudice to either party presenting at a later stage of this litigation a more thorough

25 argument regarding the nature and interpretation of section 27706.

26

The Court need not decide at this time whether section 27706 requires a public defender

27 standing by at a defendant‘s first court appearance to provide representation immediately if

28 requested, or whether the statute implicitly allows the public defender a reasonable period of time

31

Case 3:12-cv-06495-JCS Document 107 Filed 04/28/17 Page 32 of 32

United States District Court Northern District of California

1 to begin representation after request by an indigent defendant or appointment by the court.

2 Assuming the latter for the sake of argument, the Court holds that Plaintiffs have plausibly alleged

3 that the delay was unreasonable, as discussed above in the context of their Sixth Amendment

4 claim. Lipetzky‘s motion to dismiss Plaintiffs‘ claim for a writ of mandate to enforce section

5 27706 is therefore DENIED.

6 IV. CONCLUSION

7

For the reasons discussed above, Lipetzky‘s motion is GRANTED as to Plaintiffs‘ claim

8 under section 52.1 of the Civil Code, and as to Plaintiffs‘ § 1983 claim to the extent that it is based

9 on a theory of failure to provide counsel at a critical stage. Those claims are DISMISSED without

10 leave to amend. Lipetzky‘s motion is DENIED as to Plaintiffs‘ § 1983 claim to the extent that it is

11 based on a theory of unreasonable delay in appointing counsel, and as to Plaintiffs‘ claim for a

12 writ of mandate.

13

IT IS SO ORDERED.

14 Dated: April 28, 2017

15

______________________________________

JOSEPH C. SPERO

16

Chief Magistrate Judge

17

18

19

20

21

22

23

24

25

26

27

28

32

 
 Case 3:12-cv-06495-JCS Document 125 Filed 11/22/17 Page 1 of 39

Case 3:12-cv-06495-JCS Document 125 Filed 11/22/17 Page 2 of 39

1

TABLE OF CONTENTS

2

TABLE OF CONTENTS

i

3

TABLE OF AUTHORITIES

ii

4

NOTICE

1

5

MEMORANDUM OF POINTS AND AUTHORITIES

2

6 I. PRELIMINARY STATEMENT

2

7 II. DENIAL OF THE RIGHT TO COUNSEL UNDER THE SIXTH AMENDMENT

3

8 III. FACTS

4

9

1. PUBLIC DEFENDER

4

10

2. PROFESSOR ROBERT BORUCHOWITZ

12

11

3. HENRY COKER

14

12 IV. ISSUES TO BE DECIDED

16

13 V. ARGUMENT - POINTS AND AUTHORITIES IN SUPPORT OF MOTION

17

14

1. STRICKLAND’S INDIVIDUALIZED ANALYSIS IS INAPPLICABLE

TO CASES SEEKING SYSTEMIC REFORM

17

15

2. DEFENDANT’S WRITTEN POLICY OF WITHHOLDING

16

REPRESENTATION UNTIL THE SECOND ARRAIGNMENT

APPEARANCE WAS PATENTLY UNREASONABLE BY HER

17

OWN ADMISSION AND BY THE UNCONTESTED FACTS

20

18

2(A) Defendant’s Rationalizes its Policy, in the alternative, as follows

20

19

2(B) Plaintiffs have Proven that Defendant’s Policy of Delaying

Representation from 5 To 13 days, and Sometimes Longer,

20

was Unreasonable

22

21

3. DEFENDANT VIOLATED GOVERNMENT CODE SECTION 27706

BY NOT APPEARING AT THE INITIAL ARRAIGNMENT STAGE

22

PROCEEDING AND FOR THE DURATION BETWEEN THAT STAGE

AND THE SUBSEQUENT “FURTHER ARRAIGNMENT” STAGE

23

23

4. PLAINTIFFS ARE ENTITLED TO AN INJUNCTION

25

24

5. PLAINTIFFS ARE ENTITLED TO NOMINAL DAMAGES

29

25

6. PLAINTIFFS ARE ENTITLED TO DECLARATORY JUDGMENT

31

26

VI. CONCLUSION

34

27

28

i
PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT, ETC.; CASE NO. C12-6495 JCS

Case 3:12-cv-06495-JCS Document 125 Filed 11/22/17 Page 3 of 39

1

TABLE OF AUTHORITIES

2 Cases:

3 Allstate Ins. Co. v. Herron, 634 F.3d 1101 (9th Cir. 2011)

33

4 Argersinger v. Hamlin, 407 U.S. 25 (1972)

29

5 Armstrong v. Davis, 275 F.3d 849 (9th Cir. 2001)

26, 27

6 Bayer v. Neiman Marcus Group, Inc., 861 F.3d 853 (9th Cir. 2017)

30, 31

7 Beacon Theatres v. Westover, 359 U.S. 500, 506-507 (1959)

26

8 Bernhardt v. County of Los Angeles, 279 F.3d 862 (9th Cir. 2002)

31

9 Brillhart v. Excess Ins. Co., 316 U.S. 491, 62 S.Ct. 1173 (1942)

34

10 Burlington Northern R. Co. v. Crow Tribal Council, 940 F.2d 1239 (9th Cir. 1991)

32

11 Carey v. Piphus, 435 U.S. 247 (1978)

19, 29, 30

12 Church v. Missouri, -- F.Supp.3d ---- (2017) WL 3383301 at 14

18

13 City of Canton v. Harris, 489 U.S. 378, 109 S.Ct. 1197 (1989)

3

14 City of Erie v. Pap’s A.M, 529 U.S. 277, 120 S.Ct 1382 (2000)

33

15 City of Los Angeles v. Lyons, 461 U.S. 95 (1983)

26

16 City of Mesquite v. Aladdin’s Castle, 455 U.S. 283, 102 S.Ct. 1070 (1982)

28

17 Coakley v. Sunn, 895 F.2d 604 (9th Cir. 1990)

32

18 DeWolfe, Jr. v. Richmond 2012 WL 10853 (2012)

24, 25

19 Farrow v. Lipetzky, WL 1540637 (N.D. Cal. Apr. 28, 2017)

20, 23

20 Floyd v. Laws, 929 F.2d 1390 (9th Cir. 1991)

30

21 Friends of the Earth, Inc. v. Laidlaw Env. Services, Inc., 528 U.S. 167, 120 S.Ct. 693 (2000) 28

22 Gerstein v. Pugh, 420 U.S. 103 (1975)

5

23 Gideon v. Wainwright, 372 U.S. 335 (1963)

20, 21

24 Hurrell–Harring v. State, 15 N.Y.3d 8, 904 N.Y.S.2d 296 (2010)

18

25 In re Brindle, 91 Cal.App.3d 660 (1979)

29

26 Jacobs v. Clark County Sch. Dist., 526 F.3d 419 (9th Cir. 2008)

31

27 Kuren v. Luzerne County, ––– Pa. ––––, 146 A.3d 715, 718 (2016)

18, 21, 29

28 Luckey v. Harris, 860 F.2d 1012 (11th Cir.1988)

19

ii
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Case 3:12-cv-06495-JCS Document 125 Filed 11/22/17 Page 4 of 39

1 Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 130 S.Ct. 2743 (2010)

25

2 Nelson v. National Aeronautics and Space Administration, 530 F.2d 865 (9th Cir. 2008)

26

3 Oviatt v. Pearce, 954 F.2d 1470 (9th Cir. 1992)

3

4 Public Defender v. State, 115 So.3d 261 (2013)

18

5 Riverside v. McLaughlin, 500 U.S. 44, 111 S.Ct. 1661 (1991)

5, 26

6 Rothgery v. Gillespie County, Texas, 554 U.S. 191, 128 S.Ct. 2578 (2008)

1, 2, 16

7 Schneider v. County of San Diego, 285 F.3d 784 (9th Cir. 2002)

30

8 Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 70 S.Ct. 876 (1950)

32

9 Spokeo, Inc. v. Robins, ___ U.S. ___, 136 S.Ct. 1540 (2016)

30

10 Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984)

18

11 Super Tire Engineering Co. v. McCorkle, 416 U.S. 115, 94 S.Ct. 1694 (1974)

32

12 Tucker v. State, 162 Idaho 11 (2017)

18

13 United States v. Brandau, 578 F.3d 1064 (9th Cir. 2009)

28

14 United States v. Wade, 388 U.S. 218 (1967)

19

15 Wilbur v. City of Mount Vernon, 989 F.Supp.2d 1122 (E.D. Wash. 2013)

3

16

17 Statutes:

18 28 U.S.C. 2201(a)

1, 16, 32

19 California Government Code section 27706

2, 4, 12, 16, 23

20 California Penal Code section 825

5

21 Federal Rules of Civil Procedure, rule 57

1, 16, 32

22 Federal Rules of Civil Procedure, rule 65(d)

25

23

24

25

26

27

28

iii
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Case 3:12-cv-06495-JCS Document 125 Filed 11/22/17 Page 5 of 39

1

NOTICE

2

PLEASE TAKE NOTICE that on January 19, 2018, at 9:30 a.m., or as soon thereafter as the

3 matter may be heard, before the Honorable Joseph C. Spero in Courtroom G, 15th Floor, of the above-
4 entitled court, Plaintiffs will move, and hereby do move, for an order granting Plaintiffs summary
5
judgment pursuant to Rule 56(a) on the Third Amended Complaint and granting the relief requested 6

7 therein of a permanent injunction, declaratory judgment, and nominal damages; or, alternatively, for an

8 order granting Plaintiffs partial summary judgment of the following:

9

(1) That Plaintiffs John Farrow and Jerome Wade possessed a constitutional right under the Sixth

10 Amendment of the U.S. Constitution pursuant to Rothgery v. Gillespie County, Texas, 554 U.S. 191, 128
11 S.Ct 2578 (2008), of which each Plaintiff was deprived;
12 (2) That the Public Defender of Defendant Contra Costa County had a Policy of withholding
13
14 representation for a period of 5 to 13 days, and sometimes longer, to criminal indigent detainees;

15

(3) That Defendant’s Policy amounted to deliberate indifference to the Plaintiffs’ constitutional

16 right;

17

(4) That Defendant’s Policy was the moving force behind the violation of each Plaintiff’s

18 constitutional right identified above in paragraph (1);
19 (5) That, as a result of Defendant’s violation of Plaintiffs’ constitutional right identified above in
20 paragraph (1), each Plaintiff is entitled to recover nominal damages in the amount of $1.00 from
21
22 Defendant;

23

(6) That, as a result of Defendant’s violation of Plaintiffs’ constitutional right identified above in

24 paragraph (1), Plaintiffs are entitled to declaratory judgment pursuant to Federal Rules of Civil

25 Procedure, rule 57, and 28 U.S.C. 2201(a) that Defendant’s Policy identified above in paragraph (2)
26 violates Plaintiffs’ constitutional right identified above in paragraph (1);
27 (7) That, as a result of Defendant’s violation of Plaintiffs’ constitutional right identified above in
28

1
PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT, ETC.; CASE NO. C12-6495 JCS

Case 3:12-cv-06495-JCS Document 125 Filed 11/22/17 Page 6 of 39

1 paragraph (1), Plaintiffs are entitled to declaratory judgment pursuant to Federal Rules of Civil

2 Procedure, rule 57, and 28 U.S.C. 2201(a) that the Public Defender violated California Government Code
3 section 27706 by failing to appear at “all stages” of the proceedings, including the first arraignment
4 stage; and
5 (8) That as a result of Defendant’s violation of Plaintiffs’ constitutional right identified above in
6
7 paragraph (1) and of the statutory right provided in California Government Code section 27706 identified

8 in paragraph (7), Plaintiffs are entitled to a permanent injunction mandating that Defendant provide

9 representation to each and every indigent criminal detainee at the detainee’s first court appearance.

10

The motion will be made upon the ground that there is no genuine dispute as to any material fact,

11 and movant is entitled to judgment as a matter of law.
12 The motion will be based on this Notice, the Memorandum of Points and Authorities submitted
13

14 herewith, the Declaration of Christopher Martin submitted herewith, the papers and records on file in this

15 action, and upon such other and further argument and evidence as may be presented at the hearing.

16

PLAINTIFFS’ MEMORANDUM

IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 17

18

I PRELIMINARY STATEMENT

19
Plaintiffs John Farrow and Jerome Wade filed this action on December 21, 2012. The gravamen 20

21 of their Complaint alleged a violation of their constitutional rights under the Sixth Amendment of the

22 U.S. Constitution pursuant to Rothgery v. Gillespie County, Texas, 554 U.S. 191, 128 S.Ct. 2578 (2008),

23 and also alleged that the Public Defender violated California Government Code section 27706 by failing

24 to appear at “all stages” of the proceedings, including the first arraignment stage.

25

At that time, the Public Defender of Contra Costa County had a written Policy of withholding

26 representation to indigent criminal detainees for a period of 5 to 13 days, and sometimes longer, and
27
Plaintiffs, in addition to seeking relief for themselves individually, sought by their Complaint to represent 28

PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT, ETC.; CASE NO. C12-6495 JCS

2

Case 3:12-cv-06495-JCS Document 125 Filed 11/22/17 Page 7 of 39

1 a class of similarly situated individuals who had suffered violations of their Sixth Amendment rights as a

2 result of this decades-long Policy of the Public Defender of Contra Costa County. However, because
3 Plaintiffs’ Complaint and its Rothgery claim presented novel legal issues of national significance, the
4 Court determined that it would pass for the time being on deciding class-wide issues and defer Plaintiffs’
5 proposed motion for class certification in order to decide as a threshold matter (and test by appellate
6
7 review) the important, novel constitutional issues raised by Plaintiffs’ claims in their Complaint.

8

Now, after this Court has decided two motions to dismiss filed by Defendant, after Plaintiffs’

9 successful appeal to the Ninth Circuit, and after this Court’s decision to overrule in part Defendant’s third
10 motion to dismiss, the Court has proposed to decide competing motions for summary judgment prior to 11
determining class certification and related class-wide issues. This timing arguably has the potential effect 12
of limiting Plaintiffs’ right to the prospective remedies that they seek on behalf of the substantial class of 13 14 individuals who suffered similar violations of the (proposed) class members’ constitutional rights.
15 Nevertheless, Plaintiffs contend herein that under well-established authorities the Court has the power at

16 this stage (prior to class certification) to grant judgment to Plaintiffs and provide the equitable relief they

17 seek for declaratory judgment and permanent injunction.

18

II

19

DENIAL OF THE RIGHT TO COUNSEL UNDER THE SIXTH AMENDMENT

20

In order to impose liability based on a Policy of deliberate inaction, the “plaintiff must establish:

21 (1) that he possessed a constitutional right of which he was deprived; (2) that the municipality had a
22 Policy; (3) that this Policy ‘amounts to deliberate indifference’ to the plaintiff’s constitutional right; and 23
(4) that the Policy [was] the ‘moving force behind the constitutional violation.’” Oviatt v. Pearce, 954 24
F.2d 1470, 1474 (9th Cir. 1992) (quoting City of Canton v. Harris, 489 U.S. 378, 389-91, 109 S.Ct. 1197 25
26 (1989)). Proof is by a preponderance of the evidence. Wilbur v. City of Mount Vernon, 989 F.Supp.2d

27 1122, 1124 (E.D. Wash. 2013).

28

Here, there is no genuine issue of material fact with respect to any of these four elements. As

PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT, ETC.; CASE NO. C12-6495 JCS

3

Case 3:12-cv-06495-JCS Document 125 Filed 11/22/17 Page 8 of 39

1 shown below: (1) Defendant has admitted that its Policy of withholding representation for a period of 5

2 to 13 days, and sometimes longer, was arbitrary, unconstitutional, outmoded, and unlawful – i.e.,
3 unreasonable. Furthermore, Professor Boruchowitz’s report, submitted on behalf of Plaintiffs,
4 meticulously delineates why the Policy is unreasonable. Defendant’s expert did not address the question
5 posed by the Ninth Circuit and this court concerning whether Defendant’s Policy of delaying
6
7 representation for 5 to 13 days, and sometimes longer, was unreasonable – because he was told to “take a

8 microscopic look at two cases and render my opinion on that.” Additionally, when asked various

9 hypotheticals, he readily agreed that delaying representation for a week or two could prejudice a criminal
10 detainee. (2) Defendant has admitted that it had a Policy of withholding representation from detainees for 11
the period between their first and second arraignments, for however long the Contra Costa County 12
Superior Court saw fit. (3) Defendant has admitted that it was indifferent to the length of the delay for all 13 14 detainees, that it kept no records, that it did not and does not know the length of the longest detention
15 without counsel, that it made no effort to research the issue, and that it took no action to change the

16 bifurcated arraignment Policy until after Plaintiffs filed California Government Claims in this case. (4)

17 Defendant’s Policy of withholding counsel was the moving force behind the denial of counsel during the

18 relevant period.

19
20 1.
21

PUBLIC DEFENDER

III FACTS

22

On August 27, 1984, the Contra Costa County Public Defender struck a deal with the Superior

23 Court of the County of Contra Costa, setting forth the protocol for arraignment of defendants in Contra

24 Costa County. (B 2-11; E 20).1 In the letter from the Public Defender’s Office to the Presiding Judge, 25 memorializing the agreement, the Public Defender’s Office stated it would assume representation of in26

27 1 All excerpts are Bates stamped in sequence and designated “B.” Deposition citation follows, designated

28

by the first letter of the deponent’s last name and the letter “D.” Deposition exhibits are referenced by the deponent’s name and the letter “E.”

PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT, ETC.; CASE NO. C12-6495 JCS

4

Case 3:12-cv-06495-JCS Document 125 Filed 11/22/17 Page 9 of 39

1 custody detainees after the initial appearance in court “on any date such a coordinated plea and bail

2 study can be scheduled, as long as it is no sooner than three court days away.” (B 10, ¶1.)
3 In 2010, shortly after becoming the department head, Public Defender Robin Lipetzky was
4 interviewed by a reporter for the county’s newsletter, County Clips. The article states that, “In keeping
5 with the constitutional guarantees to persons charged with crimes, PD Lipetzky's goal in 2010 is to have
6
7 her attorneys appear with clients at their first court appearance on misdemeanor cases.”

8

The article also quotes the Public Defender, Ms. Lipetzky, stating,

9

Currently, in Contra Costa County, defendants charged with misdemeanors

are arraigned before a judge without benefit of counsel. For those

10

defendants who want an attorney but cannot afford one, the judge refers

them to the Public Defender Office. The defendants then must come back

11

on another court date. At the first court appearance, many defendants waive

their right to a lawyer and proceed without benefit of counsel.

12

(B 12-13; B 16-17; LD 22:2-23:8; LE 21.) 13

14

The public defender made no mention of changing the Policy with respect to felony cases; and

15 the practice of leaving out-of-custody defendants facing misdemeanor charges without representation

16 remains in full force today in the Richmond courthouse. (B 18-25; LD 34-41.)

17

It is undisputed that Plaintiff John Farrow first appeared in custody in the Walnut Creek branch of

18 the Superior Court for the County of Contra Costa on September 2, 2011. At that time, his case was
19 automatically continued after he requested appointed counsel to September 15, 2011, thirteen days later.
20
Plaintiff Jerome Wade, a juvenile, first appeared in custody in the Martinez branch of the 21

22 Superior Court for the County of Contra Costa on November 14, 2011. It is undisputed that, after he

23 requested appointed counsel, his case was continued to November 21, 2011, seven days later. It is

24 undisputed that, at the time of his first appearance in court, Mr. Wade had already been held for six days
25 without arraignment in violation of Riverside v. McLaughlin, 500 U.S. 44 (1991), Gerstein v. Pugh, 420 26
U.S. 103 (1975), and California Penal Code section 825. 27
Both John Farrow and Jerome Wade filed Government Claims in this case in 2012, alleging that 28

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1 the Public Defender’s Policy of withholding representation to in-custody defendants between the time of

2 their first appearance in court and their second appearance in court violated their Sixth Amendment right
3 to counsel and California Government Code section 27706, which requires the Public Defender to
4 represent indigent defendants at all stages of the proceedings. It is undisputed that, prior to the filing of
5 these Government Claims, the Public Defender’s Office had taken no action to ensure representation of
6
7 either in-custody or out-of-custody indigent defendants at their first appearance in court, or during the

8 time between their first and second appearances in court for the 28 years that the deal between the Public

9 Defender and the Contra Costa County Superior Court had been in place. (B 26-27 LD 73:23-74:10.)

10

After government claims were filed on behalf of Plaintiffs, the Public Defender admitted in a

11 county performance review dated, July 1, 2012, that,

12

In the coming year I will be exploring ways to ensure that we fulfill our

13

legal mandate to provide representation to clients at the first court

appearance in arraignment court. The current model for referring clients

14

to our office for representation is outdated and arguably unlawful. I hope

to secure funding from the AB109 fund to add three attorney positions and

15

two paralegal positions. If successful, I will be able to use these new

positions to fill the gap that we now have in providing effective, legally

16

mandated representation to our clients. (Emphasis added.)

17 (B 28-29; LD 32:14-24; LE 22, 9 of report.)

18

In a memorandum to the Community Corrections Partnership dated July 13, 2012, the Public

19 Defender admitted that,

20 In Contra Costa County, poor people accused of criminal offenses spend up

21

to two weeks in custody just waiting to be represented by an attorney.

These are people who have been arrested and charged but cannot afford an

22

attorney and cannot afford to post bail. [¶] Here’s how the system currently

works: Under the law, a person who has been arrested and is in custody

23

must have charges filed and be brought before a judge within 48 hours or

be released from custody. If charges are filed, the accused person will be

24

brought before a judge to be arraigned on the charges. For persons who

cannot afford an attorney the judge will set a bail amount, send the case to

25

the Public Defender’s Office, and set a new arraignment date in one to two

weeks. The bail amount is set according to a bail schedule based only on

26

the charges. The vast majority of persons charged cannot afford the bail set

and must stay in custody at least until the next court date when an attorney

27

from the Public Defender’s Office will be able to represent them. [¶] Under

this system, the first real opportunity that the charged person has to ask for

28

a lower bail or an O.R. release is after they have been in custody at least

two weeks. As a result, many people who could safely be released to the

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1

community while awaiting trial spend an unnecessary one to two weeks in

custody taking up jail space simply because they cannot afford bail and do

2

not yet have an attorney to represent them.

3 (B 30-31; B 32; [Emphasis in original]; LD 64:2-65:8; LE 25.)

4

In another memorandum to the Community Corrections Partnership dated September 6, 2012, she

5 admitted that:

6 Under the current system, incarcerated persons who request the public

7

defender services (the vast majority of people charged) must wait a period

of time – between 7 and 14 days—in custody before their next court date

8

when they will have an attorney to represent them. Only at that time, after

spending one to two weeks in custody, will they have an opportunity to ask

9

a judge to reduce their bail or release on their own recognizance.

10 (B33; B34; LD 55:12-23; LE 23.)

11

This Policy was also posted on the public defender’s website. (B 37; LD 58:4-22; LE 24.)

12

Plaintiffs filed this lawsuit on December 21, 2012. The Public Defender maintains that she

13 changed her Policy, and began representing indigent in-custody detainees at their first arraignment
14 appearance on January 7, 2013. (B 36; excerpt from Defendant’s Motion to Dismiss, Dkt. 6.)
15 The Public Defender admitted that all detainees who received credit for time served sentences at
16 17 their second court appearance, when counsel was furnished, had spent up to two additional weeks in
18 custody as a result of the public defender’s absence at the first appearance. (B 38-44; LD 66:1-6; 69:1-8;

19 75:19-25; 77:11-15.) The Public Defender admitted that she was able to secure the release of some

20 detainees because they had been misidentified, and that they would have been released earlier if she had

21 appeared at the first court appearance. (B 42-43; LD 81:23-82:12.) The Public Defender admitted that
22 having representation at the first appearance resulted in fewer negative consequences to her clients,
23 stating: “Well, anytime somebody has to stay in jail longer than necessary, they risk losing jobs, losing
24
25 their housing, losing custody of their children, those sorts of things.” (B 44; LD 69:22-25.)

26

With respect to keeping track of how many people were released at the first appearance, the

27 following colloquy took place at the Public Defender’s deposition,

28

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1

A. I think at the very beginning we were keeping track and keeping

some statistics just manually, by hand, like, yellow-paper-and-pencil kind

2

of thing. But we don’t have any, you know, database system that keep track

of those in. [¶] And I don’t think we’re keeping track anymore.

3

Q. So you don't know how many people are – you don't have

4

statistics to gauge the success of the program then?

5

A. Not hard-and-fast statistics, no.

6 (B 45; LD 97:13-98:16.)

7

At her deposition, the Public Defender was asked about a statement in the Contra Costa County

8 AB 109 Report as follows:

9

Q. “The ACER collaboration between the Office of the Public

10

Defender and the District Attorney's Office has resulted in thousands of defendants receiving representation at arraignment and does appear to

11

facilitate both pretrial releases and early case resolution.” Do you agree with that?

12

A. · Yes.

13

Q. · It goes on to say (as read): “As Figure 17 shows, more than 5,500

14

defendants were represented at arraignment through the ACER program; of these between approximately 19 percent and 35 percent were released on

15

recognizance.” Do you agree with that?

16

A. · I don't know about the statistics. I don't ·know where they're drawing those statistics. I have no reason to think it's not accurate.

17 (B 48-49; B50; LD 100:9-101:2; LE 29.)

18 Throughout her deposition testimony, the Public Defender made it clear that representation at the

19 first court appearance was contingent upon funding from the county. (B 51-56; LD 32:11-13; 43-25-44:2;
20

62:2-4; 83:3-84:2.) In her July 1, 2012, Memorandum to the Community Corrections Partnership, she 21

22 stated,

23

This year the Department was able to launch a pilot program to represent

misdemeanor clients at the first appearance in arraignment court. Due to

24

staffing shortages we were only able to provide this representation in one

of the branch courts (Delta). Nevertheless, we did make a start and we now

25

have a blueprint for expanding this representation to the other branch

courts if and when our staffing levels improve. So far the program has

26

been working well; we have been able to assist clients at an earlier stage in

the process and consequently cut down the numbers of court appearances

27

and custody days. It is too early to make projections on whether a greater

number of cases will resolve at an earlier stage in the proceedings, but we

28

will be tracking the data and will be able to report results as the program

continues. (Emphasis added.)

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1 (B 51; LD 31:80-32:13.)

2

However, the Public Defender also repeatedly stated that providing representation at the first

3 court appearance would save the county money. For example, she stated:

4 We anticipate that the ACER program will result in across-the-board

5

savings to other county departments as well as provide the long-term

benefit of reduced recidivism rates in the population served. We will

6

maintain close tracking of clients served for reporting and statistical

purposes. (Emphasis added.)

7 (B 59; LD 70:4-11; LE 25.)
8 The Public Defender also stated that representation at the first court appearance would,
9

Reduce the jail population. By cutting down on the number of persons in

10

pretrial detention and reducing the overall time the average client spends

in pretrial detention, this program will result in a significant reduction in

11

jail costs and will free up jail space for the most serious offenders.

(Emphasis added.) 12

13 (B 60-61; LD 71:19-72:1.)

14

In a report dated July 13, 2012, the Public Defender further stated that, “The Public Defender’s

15 Office proposes to begin representation for indigent in-custody clients at their first court appearance.

16 With just three attorneys and two paralegals, the Public Defender’s Office would be able to fully staff all

17 of the arraignment courts in the county – at significant savings to the Sheriff’s Office and the courts.” (B

18 65; LD 68:12-22; Ex 25.)
19
The Public Defender also stated that, 20

21

As a result of the successful implementation of ACER, we have been able to help reduce the pretrial population in the jail, as well as cut down on the

22

number of court appearances and eliminate some court calendars. Accordingly, in addition to our primary goal of providing expeditious

23

representation for our clients, this program has resulted in financial savings to the court and the Sheriff's Department.

24 (B 65-66; LD 86:11-23; Ex 25.)

25

In her September 6, 2012, “Submission to the Community Corrections Partnership, the Public

26 Defender wrote, under the heading “Expected Savings to the Sheriff’s Office”:

27

[D]ata show that out of approximately 21 in-custody felony cases per

28

week, about 50 percent of the accused are charged with AB109 offenses

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1

(non-non-nons). If even one-half of these cases (5) are released on their

own recognizance or on electronic (sic) monitoring at the first appearance,

2

this will save approximately 160 jail-bed days per month for the East

County alone.

3

(B 67-68; LD 57:19:5-20-5; LE 23.)

4

The Public Defender, however, also made it clear that representation at the first court

5

6 appearance was contingent upon permission from the court. In spite of the Public Defender having

7 announced her goal of providing representation to all defendants charged with misdemeanors at their first

8 appearance in court back in 2010 – 7 years ago – out of custody defendants charged with misdemeanors

9 are still arraigned without counsel in the Richmond Branch of the Contra Costa County Superior Court.
10 Judges still negotiate dispositions with these individuals who are deliberately kept in the dark about the 11
fact that the public defender could represent them then and there. Indeed, the judges in these departments 12
have ordered deputy public defenders to refrain from announcing their availability to assume 13
14 representation prior to commencement of arraignment calendars. Additionally the public defender’s
15 office has acquiesced to these judges and not petitioned for a writ of mandate to assert its right, and

16 obligation, under California law to announce its availability to provide legal services to these indigent

17 unrepresented defendants. (B 69-77; LD 34:21-41:25.)
18 The Public Defender testified, “So I don’t know if it’s every judge every time. I don’t know what
19 – I can’t say that that is the practice every single day. I know in the past that’s what we have attempted to
20 do, and we have been shut down.” (B 77; LD 42:17-21.) With respect to the judges who have permitted
21
22 the Public Defender to appear at the first appearance, however, the Public Defender stated that the

23 appearance of the Public Defender at the first appearance cut down on the number of court appearances

24 and the number of custody days for detainees. (B 78; LD 50:13-20.)

25

When questioned about statistics prepared by the county for an evaluation of AB 109 programs

26 prepared by Resource Development Associates, which states that the new program reduced the pretrial
27 detention population by 50 to 100 defendants each quarter since the program was launched in 2013,
28

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1 the Public Defender testified, “I have no idea if that’s true.” (B 80-81; LD 94:20; LE 28.)

2

In terms of referrals to her office from misdemeanor arraignments, the Public Defender stated,

3 “I’m not sure I ever knew what the misdemeanor process was.” (B 82; LD 44:10-11.)
4 With respect to receiving felony referrals from the court, the Public Defender testified, “For
5
felony clients, the court would bring them in at the first appearance, read them their charges, ask if the 6

7 can hire their own attorney. [¶] If they say “no,” they would refer the case to our office and set the next

8 court date at a – there were standard what were called counsel-and-plea calendars. The court would then

9 set the case on a counsel-and-plea calendar date. [¶] And then – I don’t know the process by which we
10 got referrals. But some – sometime between that time and the time of the next court date, we would get 11
the referral for the case.” (B 82; LD 44:12-23.) 12
When asked what the longest duration was between the first court date and the appearance of 13 14 counsel, the Public Defender testified, “I believe that the longest period of time would have been about
15 13 days.” When asked if she had researched the issue, she replied, “No.” (B 83; LD 47:19.)

16

The Public Defender also testified,

17

Now, which counsel-and-plea calendar the court chose to set that case on

we had nothing to do with. [¶] I don’t know how the court made that

18

determination. I don’t know if there were different policies in different

courtrooms with regard to when they wanted their counsel-and-plea

19

calendar set or how many people they wanted on a counsel-and-plea

calendar, or whether they put some over longer if they thought it needed –

20

we’re going to need a longer bail study review. [¶] It would be pure

speculation for me to try to figure out why a court would decide which

21

counsel-and-plea calendar to set a case on. We had nothing to do with

that. 22

(B 84-85; LD 109:19-110:7.) 23

When asked if her office kept track of the duration between first and second appearances, the 24

25 Public Defender testified, “We didn’t keep track of it in any formal way, no.” (B 86; LD 111:2-5.)

26

When asked, “Is it possible that some cases were continued until the third counsel-and-plea date,

27 the Public Defender testified, “Yeah, I don’t know. Not to my knowledge.” She also testified, “And as I 28 said, I’m not aware of any that had been put over beyond two weeks. That was not – that certainly was

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1 not a common practice, if it happened at all.” (B 86; LD 111:6-20.)

2

In her July 13, 2012, memorandum to the Community Corrections Partnership, the Public

3 Defender stated:

4

For the upcoming fiscal year the Public Defender...will seek to address one

5

of the major unfortunate (but expected) realities of the realignment – of

realignment – the growing jail population. Contra Costa County has one of

6

the highest pretrial detention rates in the state. In this county roughly 85

percent of the jail population on any given day is made up of persons who

7

are awaiting trial. This is 14 percent higher than the statewide average and

24 % higher than the national average. (Emphasis in original.)

8

(B87-88; LD 62:9-21; LE 25.)

9

2. PROFESSOR ROBERT BORUCHOWITZ

10

Robert Boruchowitz is a Professor from Practice at the Seattle University School of Law. (B

11

109:17; BE 1:20.) He is a nationally renowned expert in the field of Sixth Amendment rights and 12

13 indigent defense services, having testified before the United States Senate Judiciary Committee at a

14 hearing on “Protecting the Constitutional Right to Counsel for Indigents Charged with Misdemeanors.”

15 (B 112:25; BE 1:23.)

16

Professor Boruchowitz stated,

17 In my opinion, it is not reasonable to delay appointing counsel for five to

18

thirteen days or longer after the right to counsel attaches as articulated in

Rothgery. In my opinion, a Policy of leaving indigent criminal detainees

19

unrepresented in jail for a period of one to two weeks or more poses a

“grave potential for prejudice”, including prejudice at later critical stages of

20

the proceedings. As the United States Supreme Court has made clear,

“Critical stages include arraignments, postindictment interrogations,

21

postindictment lineups, and the entry of a guilty plea.” Missouri w Frye,

566 U.S. 133, 140, 132 S.Ct. 1399, 1400 (2012), citations omitted.

22 (B 90:4; BE 1:4.)

23 Professor Boruchowitz also stated that, “It is my opinion that the delay in appointing counsel of
24

five to thirteen days or longer violates California Government Code section 27706.” (B 91:7; BE 2:7.) 25

26

More important than Professor Boruchowitz’s expert opinion on these topics, however, is the

27 basis for his reasoning, which includes his experience as a defense lawyer, national and state standards,

28 potentials for prejudice as the result of delaying representation, the Public Defender’s ability to provide

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1 counsel at the first appearance, case law, and Government Code section 27706, all of which are

2 meticulously set forth in his report. (B 90-116.)

3 At his deposition, when asked about what factors he would consider in addressing the
4 reasonableness of Defendant’s Policy under the Court’s “totality of the circumstances” test, the following
5
colloquy took place, 6

7

A. Well, I think as I've outlined in my report, I would consider all the case law; the standards; the statute; the guidelines, California and national;

8

ethical obligations; and all the things that can happen to people in jail before the lawyer gets to them.

9

Q. What about consequences to the in-custody defendant as -- simply

10

as a result of being incarcerated?

11

A· Yes. I have a section in my report called Three Days in Jail Can Harm a Client, and one of the things I read is a Contra Costa politician,

12

elected official, who was talking about how we need to provide resources for the mentally ill people who are in our jail, recognizing that there can be

13

a lot of problems. And I have a section in my report about suicide in jail and the problems that mentally ill people face in jail and the death that can

14

happen in jail.

15

Q. Now, with respect to John Farrow and Jerome Wade, Mr. Coker in his report essentially does a post hoc analysis to determine whether or not

16

these two were subjected to any potential prejudice. Would you agree with that?

17

A. Yes.

18

MR. BAKER: Objection:·Leading.

19

Q ·(By Mr. Martin)· Prior to meeting with a client and interviewing

20

them, is there any way for you to assess whether they will lose their job, whether they do have medical issues, whether they do have psychological

21

issues, whether evidence will be lost as a result of a crime scene not having been preserved, whether witnesses need to be interviewed, or any of these

22

other matters that are within the universe of factors that are within the totality of the circumstances? Is there any way of knowing that before

23

actually meeting with the client?

24

A. You might get some hints of it. You know, in highly publicized cases that you know about before you see the client, you might have some

25

idea about the need to preserve the scene or get witnesses or get mental health treatment, but you need to see the client as soon as possible to assess

26

all those factors effectively.

27

Q. Would you also want to be able to read the discovery in the case?

28

A. Obviously you want to read the discovery. Even if you don't have it, you should see the client.

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1

Q.· In your opinion, is it reasonable to wait between five and thirteen

days and sometimes longer to interview the client?

2

A.· · No.

3

Q. Why?

4

A. There's all the factors you mentioned about figuring out what needs

5

to happen as soon as possible. If there are issues related to excessive bail or

unlawful detention, you might be able to bring either an administrative or

6

negotiated resolution, or you can bring a habeas corpus procedure. You

want to establish a good relationship with the client right up front; Ms.

7

Lipetzky refers to the importance of that. You need to figure out what you

need to learn about the case and about the client. You may be able to

8

prevent more charges being filed; sometimes you can prevent the death

penalty being sought. There are just so many things that have to happen.

9

There may be immigration issues; you may be able to reach an immigration

safe resolution earlier, depending on how quickly you can get to the client.

10

There's just a whole range of issues to address on the first interview.

11

Q. County counsel asked you about my representation of John Farrow

and Jerome Wade. In your opinion, would it have been reasonable for me

12

to delay interviewing those clients for five to thirteen days or longer?

13

A. No.

14

Q. Would it have been reasonable for me to effectively sit on my

hands for five to thirteen days and do nothing to represent those

15

defendants?

16

A.· No.

17 (B 118-120; BD 67:2-69:25.)

18 3. HENRY COKER

19

My Coker, a retired San Diego Public Defender, was retained by Defendant to render an opinion

20 in this case. Mr. Coker believed that the public defender’s administrative concerns – which had nothing

21 to do with Mr. Farrow’s case – justified leaving him unrepresented in jail for 13 days. (B 126:17; CE 1:5
22 at 17.) Mr. Coker opined in his report that the delay in providing representation to Jerome Wade was due
23
to the fact that it was a codefendant case. (B 126:16.) 24

25

At his deposition, Mr. Coker stated,

26

I was asked to look at these two cases and render an opinion on those. I

was not asked to look at the entirety of Contra Costa’s practice and how

27

things are done there, so I cannot give you any informed opinion about

the overall practice of Contra Costa County.

28 (B 158; CD 54:6-10.)

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1

He also stated,

2

I was not – without having looked at the broad system – I was not asked to

look at the entire system. I was asked to take a microscopic look at two

3

cases and render my opinion on that. So I want to keep my views tightly

to things that I have looked at. I don’t know what’s the overall Policy in

4

Contra Costa on a Monday through Friday.

5 (B 140; CD 56:4-10.)

6

Additionally, Mr. Coker agreed that he was not offering any opinion as to whether it was

7 reasonable to delay representation for a period of 5 to 13 days, and sometimes longer, in cases other than

8 the two he examined, stating, “I am not doing that, because if I offer that opinion it will not be an

9 informed opinion, I have not made a careful study of the systemic way things work in the office, and, you

10 know, it would be a man-on-the-street opinion.” (B 140-41; CD 56:19-57:3.) The following colloquy

11 took place with regard to his opinion on the reasonableness of the delay in appointing counsel:

12

Q. Well, you indicate that the date that counsel is actually assigned or

13

provided is more relevant to our consideration than the date of the next court hearing. So you’re assuming that when counsel is assigned or

14

provided that they actually do something; is that right?

15

A. Yes. That is the assumption. And that assumption I had two cases in front of me, and those two cases something was done. In one faster than the

16

other, but as I said, it was probably based on consideration of the needs of the particular case, so.

17 (B 142; CD 44:14-23.)

18 Mr. Coker agreed, however, that it would be unreasonable for an appointed attorney to leave a
19

client in jail for two weeks without interviewing the client, without asking for bail, and without 20

21 conducting any investigation. (B 143; CD 45:9-24.) He also agreed that it would be prejudicial if an

22 exculpatory video were recorded over because counsel was not there to protect it. (B 144; CD 60:11-15.)

23 He agreed that it is important to know a detainee’s mental state, and that it would be prejudicial if a
24 depressed detainee committed suicide because he was not provided with medication. (B 145; CD 62:1525
63:1.) 26
Mr. Coker stated that in big cases involving 17 or 18 codefendants, it might take a week to figure 27 28 out all of the conflicts. He also stated, though, that the San Diego Public Defender appears for all

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1 indigent detainees at their first appearance in court regardless of whether there are multiple codefendants,

2 that he could not recall a case ever requiring two weeks to determine conflict status, and that appearing

3 on the first day preserves the detainees statutory speedy trial rights. (B 147; CD 71:15-72-7.)
4 Mr. Coker stated that it is important to conduct timely investigations, emphasizing the need to
5
preserve physical evidence, take pictures, or have an expert attend an autopsy. (B 150; CD 27:19-29:3.) 6

7

On the topic of interviewing the client, the following colloquy took place:

8

Q. “Why is it important to interview the client quickly?”

9

A. It is good practice to interview any client that you’re going to

represent at the first opportunity that you have.

10 Q. Why?

11 A. Because they will provide you with information that will give you

12

leads and stats and at least help you as the lawyer to digest the situation and

begin to come up with a strategy, a theory of the case, that kind of thing.

13 (B 153; CD 30:19-31:10.)

14 Mr. Coker testified that, “[F]rom my experience visiting other counties, surrounding counties,

15

and I talk on a regular basis with other public defenders, we tend to do things pretty much the same 16

17 way.” (B 154; CD 7:6-9.) He also stated that he knows of no other county in the state that employs a

18 bifurcated arraignment process. (B 155; CD 43:5-8.)

19

Mr. Coker was very clear that his office has the ability to track every event in a client’s case,

20 including the dates of first and second appearances. (B 156; CD 35:11-36:6.)

21 IV

22

ISSUES TO BE DECIDED

23

There is no genuine dispute in regard to the following facts and, hence, Plaintiffs are entitled to an

24 order granting Plaintiffs partial summary judgment of the following:

25

(1) That Plaintiffs John Farrow and Jerome Wade possessed a constitutional right under the Sixth

26 Amendment of the U.S. Constitution pursuant to Rothgery v. Gillespie County, Texas, 554 U.S. 191, 128
27
S.Ct 2578 (2008), of which each Plaintiff was deprived; (2) That the Public Defender of Defendant 28

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Case 3:12-cv-06495-JCS Document 125 Filed 11/22/17 Page 21 of 39

1 Contra Costa County had a Policy of withholding representation for a period of 5 to 13 days, and

2 sometimes longer, to criminal indigent detainees; (3) That Defendant’s Policy amounted to deliberate
3 indifference to the Plaintiffs’ constitutional right; and (4) That Defendant’s Policy was the moving force
4 behind the violation of each Plaintiff’s constitutional right identified above in paragraph (1).
5 Plaintiffs further contend that they have established that there is no genuine dispute in regard to
6
7 Plaintiffs’ entitlement to an order granting Plaintiffs partial summary judgment for each of the following

8 remedies: (5) That, as a result of Defendant’s violation of Plaintiffs’ constitutional right identified above

9 in paragraph (1), each Plaintiff is entitled to recover nominal damages in the amount of $1.00 from
10 Defendant; (6) That, as a result of Defendant’s violation of Plaintiffs’ constitutional right identified 11
above in paragraph (1), Plaintiffs are entitled to declaratory judgment pursuant to Federal Rules of Civil 12
Procedure, rule 57, and 28 U.S.C. 2201(a) that Defendant’s Policy identified above in paragraph (2) 13 14 violates Plaintiffs’ constitutional right identified above in paragraph (1); (7) That, as a result of
15 Defendant’s violation of Plaintiffs’ constitutional right identified above in paragraph (1), Plaintiffs are

16 entitled to declaratory judgment pursuant to Federal Rules of Civil Procedure, rule 57, and 28 U.S.C.

17 2201(a) that the Public Defender violated California Government Code section 27706 by failing to
18 appear at “all stages” of the proceedings, including the first arraignment stage; and (8) That as a result of 19
Defendant’s violation of Plaintiffs’ constitutional right identified above in paragraph (1) and of the 20
statutory right provided in California Government Code section 27706 identified in paragraph (7), 21
22 Plaintiffs are entitled to a permanent injunction mandating that Defendant provide representation to each
23 and every indigent criminal detainee at the detainee’s first court appearance, or at the latest, within 24

24 hours of the criminal detainee’s first court appearance.

25
26
27 1.
28

V ARGUMENT POINTS AND AUTHORITIES IN SUPPORT OF MOTION
STRICKLAND’S INDIVIDUALIZED ANALYSIS IS INAPPLICABLE TO CASES SEEKING SYSTEMIC REFORM.

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1

Determining the reasonableness of Defendant’s written Policy of withholding representation from

2 indigent in-custody detainees for a period of between 5 and 13 days, and sometimes longer, in a case
3 seeking systemic reform, depends largely upon whether the Policy is examined in terms of its potential
4 for damage to the thousands of lives it impacted, or its potential for damage in terms of the named
5 Plaintiffs’ underlying criminal cases. Fortunately, this threshold question has been resolved in a number
6
7 of recent cases, each of which has determined that Strickland’s individualized analysis requirement is

8 inapplicable in cases seeking prospective, systemic reform.

9

In Church v. Missouri, -- F.Supp.3d ---- (2017) WL 3383301 at 14, the United States District

10 Court for the Western District of Missouri – quoting the Idaho Supreme Court in Tucker v. State, 162
11 Idaho 11 (2017), stated – “The U.S. Supreme Court in Strickland was very clear about the individualized
12 analysis it was creating. (Citation omitted.) ‘Strickland, therefore, is inapplicable when systemic
13
14 deficiencies in the provision of public defense are at issue.’” Accord, Kuren v. Luzerne Cty., ––– Pa. ––

15 ––, 146 A.3d 715, 718 (2016); and Hurrell–Harring v. State, 15 N.Y.3d 8, 904 N.Y.S.2d 296 (2010).

16

Also before reaching its determination that piecemeal litigation is inappropriate in systemic

17 reform cases, the Pennsylvania Supreme Court in Kuren v. Luzerne, supra, at 732, quoted the American

18 Bar Association, stating:

19 The ABA argues that Strickland-type post-conviction relief not only would

20

fail to remedy the civil claims asserted by Appellants, but also would fail to

hold a public defender’s office or the funding county to account for non-

21

compliance with Gideon. Strickland can provide a remedy only to one

person at a time. Such sporadic, piecemeal rulings are unlikely to compel

22

public defender’s offices to make necessary changes, or to induce counties

to provide the resources necessary to provide meaningful legal

23

representation to indigent defendants.

24

Additionally, the Florida Supreme Court stated in Public Defender v. State, 115 So.3d 261 (2013)

25 that, 26 27 28

In extreme circumstances where a problem is system-wide, the courts should not address the problem on a piecemeal case-by-case basis. This approach wastes judicial resources on redundant inquiries. If this Court had not approved systemic aggregate relief in the appellate cases cited above, the courts would have been clogged with hundreds of individual motions to withdraw. This is tantamount to applying a band aid to an open head

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1

wound. [¶] The Strickland standard has been criticized as “inappropriate”

for suits seeking prospective relief. See Luckey v. Harris, 860 F.2d 1012,

2

1017 (11th Cir.1988). (Emphasis added.)

3

Similarly, in United States v. Wade, 388 U.S. 218 (1967), the Supreme Court concluded that post-

4 indictment, pretrial lineups without counsel violated the Sixth Amendment regardless of whether a
5 particular defendant had been accurately identified as the perpetrator. Indeed, the phrase “grave potential
6 for prejudice” was introduced into Sixth Amendment jurisprudence by Wade within the context of the
7 right to counsel during pretrial lineups. Wade recognizes that all defendants are subject to the same risk
8
9 of prejudice inherent in the procedure of conducting lineups without counsel. The prejudice is not

10 crystallized at the point that the lineup is conducted without counsel, but the deprivation of counsel at

11 that point results in the grave potential for prejudice for every defendant nonetheless.

12

It is this commonality of risk that all defendants were subjected to that provides guidance in

13 determining how to analyze the present issue before the court. Significantly, the Ninth Circuit quoted the
14 phrase “grave potential for prejudice” to illustrate this point. Additionally, the Ninth Circuit asked this
15

16 Court to assess whether the delay in appointing counsel for 5 to 13 days, and sometimes longer, was

17 reasonable – a determination that cannot be made through reference limited strictly to the Plaintiffs in

18 this case, neither of whom was held without counsel for more than 13 days. Consequently, the inquiry

19 must be on the grave potential for prejudice inherent in the written Policy of agreeing to withhold
20 representation till any date the court chooses so long as that date is at least three court days out; a Policy 21
that typically resulted in a delay of a week or two – but may have resulted in a delay of three weeks in 22
some cases because the public defender set no outside limit on the length of the delay, did not pay any 23
24 attention to the length of the delay (LD 111:2-5), delegated responsibility for the length of the delay in

25 representation to the court (LD 109:19-110:7), and kept no records from which the outside length of the

26 delay could be determined. (LD 111:6-20.)

27

Similarly, in Carey v. Piphus, 435 U.S. 247 (1978), the Supreme Court stated that students who

28 had been suspended without a hearing were denied their due process rights regardless of whether they

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1 would have been suspended had due process been observed: In other words, you cannot determine

2 whether a constitutional violation has occurred by examining whether the outcome of the case would

3 have been different in the absence of the constitutional violation.

4 2.
5

DEFENDANT’S WRITTEN POLICY WAS PATENTLY UNREASONABLE BY HER OWN ADMISSION AND BY THE UNCONTESTED FACTS.

6

This Court held that “the reasonableness of a delay in appointing counsel after attachment

7 depends on the totality of the circumstances, including the time needed to prepare for an upcoming
8 critical stage–but not limited to that factor.” It also determined that even though no critical stage was
9
10 imminent, “[T]hat in no way diminishes the value of appointed counsel to protect Walter Rothgery’s

11 process and liberty interests after the right had attached.” Farrow v. Lipetzky, WL 1540637 (N.D. Cal.

12 Apr. 28, 2017) at 27.

13

2(A) Defendant’s Rationalizes its Policy, in the alternative, as follows:

14

(1) The Public Defender did not have sufficient staff to provide representation at the initial

15 arraignment stage of the proceedings and for the duration between the initial arraignment stage and the
16 further arraignment stage because the County did not provide adequate funding; (2) The Court prevented
17 the Public Defender from providing representation at the initial arraignment stage and for the duration
18
19 between the initial arraignment stage and the further arraignment stage; (3) The Public Defender needed

20 the extra time to sort out financial eligibility for indigent defense services, and to determine if she had a

21 conflict in the particular case; (4) The Public Defender did not need to provide representation to the

22 named Plaintiffs at the initial arraignment and for the duration between the initial arraignment and the
23 further arraignment because hindsight shows that it would not have made any difference in their 24
underlying criminal cases. 25
Pursuant to Gideon v. Wainwright, 372 U.S. 335 (1963), the County had an obligation to provide 26
27 adequate funding for indigent defense services. However, even if the Court were to recognize funding as

28 a legitimate factor under the totality of the circumstances, the evidence conclusively establishes that

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1 providing indigent defense services at detainee’s first appearance in court saved the county an enormous

2 amount of money. (LD 70:4-11; Ex 25, B 33; LD 71:19-72-1; Ex 25, B. 33; LD 68:12-22; Ex 25, B 32;
3 LD 85:11-23; Ex 25, B 50, 5 of report; LD 57:19:5-20-5: Ex 23, B 30.) Therefore, the Policy cannot be
4 justified on economic grounds.
5 Furthermore, in Kuren v. Luzerne County, supra, indigent criminal defendants awaiting trial,
6
7 along with the Chief Luzerne County Public Defender, filed a class action lawsuit seeking an injunction

8 compelling the County to provide adequate funding for defense services. The Pennsylvania Supreme

9 Court determined that an action for prospective relief brought by detainees and the Chief Public Defender

10 alleging an actual or constructive denial of counsel due to underfunding of a public defender’s office was

11 cognizable under Gideon v. Wainright, 372 U.S. 335 (1963), as opposed to either Cronic or Strickland.

12 The Pennsylvania Supreme Court stated,
13

We recognize for the first time in Pennsylvania a prospective cause of

14

action enabling indigent criminal defendants to prove that the level of

funding provided by a county to operate a public defender’s office has left

15

that office incapable of complying with Gideon, creating the likelihood of a

systematic, widespread constructive denial of counsel in contravention of

16

the Sixth Amendment to the United States Constitution. We further hold

that Appellants have sufficiently averred facts to state a claim upon which

17

injunctive relief can be granted.

18 Luzerne, supra, at 752.

19

The public defender admitted that the Court did not prevent her from appearing at the initial

20 appearance in every court in the county, other than the Richmond court in out of custody misdemeanor
21 cases, where the judges currently forbid her from announcing her services in court prior to the
22
commencement of proceedings. Therefore, the Court did not prevent her from discharging her duties in 23

24 any of the other courts for the 28-year period that the Policy was in effect. Furthermore, the letter from

25 the Public Defender’s Office to the Presiding Judge of the Superior Court in 1984 establishes that the

26 Public Defender not only agreed to the Policy, but also jointly drafted the Policy with the Superior Court. 27 Consequently, this argument is hollow. (LD, 15:7-20:10; Exhibit 20.) 28
The Public Defender stated back in 1984 that it could assume representation within three court

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1 days. Therefore, by Defendant’s own admission, it did not need 5 to 13 days, and sometimes longer, to

2 check eligibility and conflicts. Indeed, the public defender now appears at the first appearance in every
3 case, except out of custody misdemeanor cases in Richmond, conclusively demonstrating that she did not
4 need even three days to perform functions prerequisite to providing representation. Moreover, in her
5 deposition testimony the Public Defender was emphatic that her office had nothing to do with setting
6
7 the duration of time between the first and second arraignment proceedings, conceding that eligibility

8 and conflicts checks were never a factor in determining the delay in providing counsel. (LD 109:19-

9 110:7.) Given that financial eligibility and conflicts were not considered when the delay was imposed,

10 the argument that the delay was needed for these purposes, as stated by Mr. Coker, is nothing more than
11 a hypothetical premised upon facts that the public defender has explicitly refuted. Every case was
12 continued without rhyme or reason as far the public defender was concerned, not due to the reasons
13
14 posited by Mr. Coker. Id. Consequently, Defendant’s Policy is utterly unjustified.

15

Plaintiffs addressed Defendant’s assertion that representation was not needed in the named

16 Plaintiffs’ cases at the first appearance and for the duration between arraignment stages, because

17 representation would not have benefitted either Plaintiff, in Section V(A) of this brief, supra. Plaintiffs,

18 however, were harmed by Defendant’s Policy as described in the Third Amended Complaint and

19 Professor Boruchowitz’s report.

20

2(B) Plaintiffs have Proven that Defendant’s Policy of Delaying Representation from 5 To

21

13 days, and Sometimes Longer, was Unreasonable.

22

In contrast to Defendant – who provides no reason at all for the institutionalized delay in

23 providing representation – Professor Boruchowitz identified and documented 55 reasons why
24

Defendant’s Policy was unreasonable under the totality of the circumstances. (BE 1:5-17.) 25

26

Defendant has not contradicted a single study or standard referenced by Professor Boruchowitz,

27 or refuted a single factor that he considered in determining that Defendant’s Policy was unreasonable

28 under the totality of the circumstances. In addition, Defendant admitted that Contra Costa County had the

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1 highest pretrial custody rate in the state, stating that its pretrial custody rate was 14 percent higher than

2 the statewide average and 24 % higher than the national average. (LD 62:9-21; Ex 25, B 31.) Moreover,
3 Mr. Coker, who is aware of the practices of public defender offices, stated that he was not aware of any
4 other public defender office in the state that engages in a bifurcated arraignment process. (CD 43:5-8.)
5 The backdrop of grave potential for prejudice in the Policy as described by Professor
6
7 Boruchowitz, juxtaposed with no economic or administrative justification for the Policy, establishes that

8 the Policy was unreasonable. Defendant recognizes that the Policy was arbitrary and patently

9 unreasonable, which explains why it has tried to shift the focus from its Policy to the irrelevant facts of

10 Plaintiffs’ underlying criminal cases, which were not considered when the delay was imposed. Under
11 these circumstances – where the Public Defender states that it “had nothing to do” with determining how
12 long her office would delay representation – no reasonable jury could find that the delay was reasonable
13
14 or in any way justified.

15 3. 16 17 18

DEFENDANT VIOLATED GOVERNMENT CODE SECTION 27706 BY NOT APPEARING AT THE INITIAL ARRAIGNMENT STAGE PROCEEDING AND FOR THE DURATION BETWEEN THAT STAGE AND THE SUBSEQUENT “FURTHER ARRAIGNMENT” STAGE.
In Farrow v. Lipetzky, WL 1540637 (N.D. Cal. Apr. 28, 2017) at 30, this Court asked whether

19 Government Code section 27706 absolutely requires the public defender to attend the first court appearance,

20 leaving open the possibility there might be some compelling reason for delaying representation until

21 whenever the court set the second appearance. Assuming that the public defender is not absolutely required

22 to attend the first court appearance and that there could be a justification for the delay, no justification has
23 been provided in this case. Indeed, by definition, an arbitrary delay is not justified. Here, defendants were
24 subjected to a lottery, where the length of the delay in providing representation was determined by chance,
25 with utter indifference to the circumstances of any given case. As this Court has pointed out, the fact that the
26 Superior Court set the “further arraignment” date does not excuse the undisputed fact that the Public Defender
27
28 waited till the second court date to provide representation. In fact, it is reasonable to assume that all detainees

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1 who proceeded with their cases on a time not waived basis would have immediately asked the public defender

2 to place their cases back on calendar in order to assert their statutory speedy trial rights, rather than having to
3 wait up to two weeks in jail to enforce the right to a preliminary hearing within 10 court days. It is also
4 reasonable to assume that a high percentage of detainees would have asked the public defender to
5 immediately file a bail motion.
6 As discussed above, the Public Defender has admitted that it had nothing to do with determining the
7 duration of the delay between the “initial arraignment” and the “further arraignment.” Consequently, the
8
9 public defender cannot now argue that it withheld representation for that arbitrary period, which differed from

10 case to case, because it needed the time to sort out financial eligibility and conflict questions. On the contrary,

11 the reason that the Public Defender did not provide representation is that it was so indifferent to the needs of

12 these detainees that it did not even bother to monitor how long they were in custody without representation, a

13 message that was not lost on the named Plaintiffs.

14

Similarly, in DeWolfe, Jr. v. Richmond 2012 WL 10853 (2012), the Plaintiffs filed a class action

15 complaint seeking injunctive and declaratory relief. They sought a declaratory judgment that the initial
16 bail hearing before the commissioner is a stage of the criminal proceeding, entitling them to
17

18 representation under § 16–204(b)(2) of the Public Defender Act, which states that “[r]epresentation shall

19 be provided ... in all stages of a proceeding listed in paragraph (1) of this subsection, including, in

20 criminal proceedings, custody, interrogation, preliminary hearing, arraignment, trial, and appeal.” They

21 also filed claims alleging that the City of Baltimore violated their Sixth Amendment right to counsel by
22 failing to furnish representation at their first appearance in court where bail was set. The Maryland 23
Supreme Court, following state Policy on avoiding resolution of claims on constitutional grounds where 24
possible, found that pretrial detainees were entitled to counsel at their first appearance under the state’s 25
26 Public Defender Act and declined to address the Sixth Amendment claim.

27

The Maryland Public Defender Act is virtually identical to California Government Code section

28 27706 in that each requires representation at “all stages” of the proceedings. Indeed, the Plaintiffs in that

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1 case argued that, by its plain language, the statute dictates the outcome: indigent defendants are entitled

2 to public defender representation at “all stages” of the proceedings, and “all means all.” DeWolfe, supra,

3 at 9. The same basic statutory construction, where the statute is crystal clear, should apply here.

4

Ultimately, the Maryland Supreme Court held that,

5

[T]he bail-hearing portion of the initial appearance before the

6

Commissioner is a “stage” of the criminal proceeding, as that term is

employed in § 16–204(b)(2) of the Public Defender Act. Because public

7

defender representation is to be afforded “in all stages of a proceeding

listed in paragraph [ (b) ](1),” and we have determined that the bail hearing

8

is a stage of a “criminal ... proceeding” enumerated at (b)(1)(i), it follows

that indigent defendants charged with “serious offense [s],” as that term is

9

defined in the Act, are entitled to appointed counsel at the bail hearing.

This conclusion is fully in keeping with our prior decisions in Webster,

10

Flansburg, and McCarter.[¶] We further hold that indigent defendants who

are not charged with a serious offense, and therefore do not come within

11

the ambit of § 16–204(b)(1)(i), do come within the reach of § 16–

204(b)(1)(iv), because the bail hearing at the initial appearance for the non-

12

serious offense might result in incarceration.

13 Id. at 11.

14 4. PLAINTIFFS ARE ENTITLED TO AN INJUNCTION

15

This is a putative class action lawsuit seeking systemic reform of Defendant's written Policy

16 denying counsel to all indigent detainees for a period of between 5 and 13 days, and sometimes longer.
17
The class has not yet been certified. Plaintiffs seek the equitable remedy under Federal Rules of Civil 18

19 Procedure, rule 65(d) of a permanent injunction requiring the Public Defender of Contra Costa County to

20 appear at the first court appearance for indigent detainees and to represent such criminal defendants at all

21 stages of the proceedings.

22

The following four elements must be established by a plaintiff seeking permanent injunctive relief

23 pursuant to equitable principles: 1) That Plaintiff has suffered irreparable injury; 2) that remedies at law
24 (i.e., damages) are inadequate to compensate for that injury; 3) that, on balancing the hardships between
25
Plaintiff and Defendant, an equitable remedy is justified; and that the public interest would not be 26

27 disserved by a permanent injunction. Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 156-157, 130

28 S.Ct. 2743 (2010).

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1

The basis of injunctive relief in the federal courts has always been irreparable harm and

2 inadequacy of legal remedies. Beacon Theatres v. Westover, 359 U.S. 500, 506-507 (1959) Irreparable
3 harm can be proved through a showing of real or immediate threat that Plaintiff will be wronged again.
4 City of Los Angeles v. Lyons, 461 U.S. 95, 111-112 (1983).
5 “Unlike monetary injuries, constitutional violations cannot be adequately remedied through
6
7 damages and therefore generally constitute irreparable harm. Moreover, the loss of one’s job does not

8 carry merely monetary consequences; it carries emotional damages and stress, which cannot be

9 compensated by mere back payment of wages. (Citation omitted.) ” Nelson v. National Aeronautics and
10 Space Administration, 530 F.2d 865, 882 (9th Cir. 2008) [Holding that serious privacy issues and likely 11
violation of low-level employees’ Fourth Amendment rights raised by intrusive investigations by 12
government required conclusion that the district court abused its discretion in denying plaintiffs’ motion 13 14 for a preliminary injunction, and granting temporary injunction pending determination of preliminary
15 injunction on remand.]

16

To have standing for prospective injunctive relief on behalf of a class, Plaintiff must demonstrate

17 that he is realistically threatened by a repetition of the violation. City of Los Angeles v. Lyons, supra, 461
18 U.S. at 103. The court retains jurisdiction after the expiration of the proposed class representative's 19
individual interest where a named Plaintiff's claims on behalf of a class are “inherently transitory.” These 20
types of cases properly rely upon the “relation back” doctrine. County of Riverside v. McLaughlin, 500 21
22 U.S. 44, 51-52, 111 S.Ct. 1661 (1991). “That the class was not certified until after the named plaintiffs’

23 claims had become moot does not deprive us of jurisdiction . . . . In such cases, the ‘relation back’

24 doctrine is properly invoked to preserve the merits of the case for judicial resolution.” Ibid.

25

The Ninth Circuit Court of Appeals noted in Armstrong v. Davis, 275 F.3d 849, 860 (9th Cir.

26 2001) “that where a district court grants systemwide injunctive relief, the issues of standing, class
27 certification, and the propriety and scope of relief are often intermingled.” The Court went on to state at
28

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1 861:

2

There are at least two ways in which to demonstrate that such injury is

likely to recur. First, a plaintiff may show that the defendant had, at the

3

time of the injury, a written Policy, and that the injury “stems from” that

Policy. Hawkins, 251 F.3d at 1237. In other words, where the harm

4

alleged is directly traceable to a written Policy, see Gomez v. Vernon, 255

F.3d 1118, 1127 (9th Cir. 2001), there is an implicit likelihood of its

5

repetition in the immediate future. Second, the plaintiff may demonstrate

that the harm is part of a “pattern of officially sanctioned ... behavior,

6

violative of the plaintiff's [federal] rights.” LaDuke v. Nelson, 762 F.2d

1318, 1323 (9th Cir. 1985). Thus, where the defendants have repeatedly

7

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

8

repetition” requirement. In this regard, where the plaintiffs constitute a

certified class, “it is not irrelevant that [the named plaintiffs] s[eek] to

9

represent broader interests than [their] own.” LaDuke, 762 F.2d at 1326.

When a named plaintiff asserts injuries that have been inflicted upon a

10

class of plaintiffs, we may consider those injuries in the context of the

harm asserted by the class as a whole, to determine whether a credible

11

threat that the named plaintiff's injury will recur has been established. Id.;

see also Hawkins, 251 F.3d at 1237. [Emphasis added.] 12

13

The written Policy is established by the Public Defender's letter to the Presiding Judge of the

14 Superior Court in 1984, wherein the Public Defender's Office stated it would assume representation of in-

15 custody detainees after the initial appearance in court “on any date such a coordinated plea and bail study

16 can be scheduled, as long as it is no sooner than three days away.” (Ex 20 at Bates 94.) The written
17 Policy is further reflected by the statement that appeared on the Public Defender's website stating that in18
custody detainees would appear without counsel at their first court appearance and that appointed counsel 19
would be available at the second appearance. (LD 58:4-22; Ex 24.) It is also reflected in the numerous 20
21 official County documents wherein the Public Defender describes the Policy, stating that indigent
22 detainees must wait “at least two weeks” for appointed counsel, or “between one to two weeks” without

23 counsel. (LD 64:2-65:8, Ex.25, B 31; LD 55:12-23; Ex.23, B 30.) Furthermore, the Policy reflects a

24 “pattern of officially sanctioned behavior violative of Plaintiff's federal rights.”
25 Plaintiffs were held for 7 and 13 days, respectively, without counsel pursuant to Defendant's
26 Policy. This harm is directly traceable to the Defendant's written Policy.
27 Defendant amended its Policy in response to this lawsuit so that in-custody detainees now
28

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1 apparently receive representation at their first appearance in court. However, in United States v. Brandau,

2 578 F.3d 1064, at 1067 (9th Cir. 2009), the Ninth Circuit stated that,

3

It is well established that the voluntary cessation of a challenged practice

4

does not deprive a federal court of its power to determine the legality of the practice. Friends of the Earth, Inc. v. Laidlaw Environmental Services

5

(TOC), Inc., 528 U.S. 167, 189, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (quotation marks omitted). When a party abandons a challenged practice

6

freely, the case will be moot only, “if subsequent events made it absolutely clear that the alleged wrongful behavior could not reasonably be expected

7

to recur” ... The “heavy burden of persuading” the court that the challenged conduct cannot reasonably be expected to start up again lies

8

with the party asserting mootness.

9

Similarly, the Supreme Court in City of Mesquite v. Aladdin’s Castle, 455 U.S. 283, 289, 102

10 S.Ct. 1070 (1982) stated that,

11

It is well settled that a defendant’s voluntary cessation of a challenged

practice does not deprive a federal court of its power to determine the

12

legality of the practice. Such abandonment is an important fact bearing on

the question whether a court should exercise its power to enjoin the

13

defendant from renewing the practice, but that is a matter relating to the

exercise, rather than the existence, of judicial power. In this case, the city’s

14

repeal of the objectionable language would not preclude it from

reenacting precisely the same provision if the District Court’s judgment

15

were vacated. (Emphasis added.)

16

It is reasonable to expect that the practice of denying representation to indigent criminal

17 defendants at all appearances will recur without the injunction sought. Even if the public defender states
18 that she has disavowed the Policy and will not return to it, this assurance rings hollow where (1) there is
19 no guarantee that the Community Corrections Partnership will continue to approve funding for her
20
21 ACER program, a different public defender could be appointed, or the Board of Supervisors might deny

22 funding. A county financial shortfall, for example, could instantly reduce public defender funding; and

23 (2) there is no guarantee that the Superior Court will not resume the Policy on its own, given that it

24 currently forbids the public defender from appearing in some arraignment courts, and the public defender
25 has acquiesced to this violation of her client’s right to counsel. (LD 42:17-21.) Ultimately, there is no
26 way for Defendant to carry its “heavy burden of persuading” the court that the challenged conduct
27 cannot reasonably be expected to start up again without unanimous assurances from all members of the
28

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1 Community Corrections Partnership, including the Contra Costa County Superior Court, which is openly

2 hostile to representation at the first appearance in court.
3 Inevitably, the continuing Policy of denying representation at the first court appearance results in
4 hundreds of uncounseled pleas, where Fourth, Fifth, and Amendment violations are swept under the rug
5 – in a county where the court requires appellate waivers for every guilty plea. The sheer volume of
6
7 misdemeanor cases creates an expediency pressure on the court that creates a long recognized risk of

8 prejudice to those persons charged. (Argersinger v. Hamlin, 407 U.S. 25, 34-35 (1972).)

9

This Court cited In re Brindle, 91 Cal.App.3d 660 (1979) in its April 2017 opinion, placing

10 Defendant on notice concerning the obligations of the Public Defender's Office. Brindle states:

11 Business and Professions Code section 6152, subdivision (d), referring to

12

unlawful solicitation of business by attorneys was amended in 1976 to

provide: ‘Nothing in this section shall be construed to mean that a public

13

defender ... may not make known his or her services as a criminal defense

attorney to persons unable to afford legal counsel whether such persons are

14

in custody or otherwise.’ Id. at 682.

15

In spite of being directed to In re Brindle by this Court, the Public Defender has acquiesced to the

16 Contra Costa County Superior Court's prohibition on announcing the availability of Public Defender

17 services and has taken no legal action to enforce its right to “make known his or her services as a
18 criminal defense attorney” to out of custody misdemeanor defendants unable to afford legal services in
19 the Richmond Courthouse. Unlike the Chief Public Defender in Kuren v. Luzerne County, 146 A.3d 715
20 (2016), who sued the County for an injunction requiring the County to fund indigent defense services, the
21
22 Contra Costa County Public Defender will fetter her duty in order to appease the Superior Court with

23 respect to representing indigent defendants at the first court appearance. An injunction is necessary to

24 ensure that the Public Defender of Contra Costa County represents indigent criminal defendants by

25 appearing at the first court appearance.

26 5.
27
28

PLAINTIFFS ARE ENTITLED TO NOMINAL DAMAGES The seminal case Carey v. Piphus, supra, 435 U.S. 247, 98 S.Ct. 1042 analyzed the relationship

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1 of damages awards for civil rights violations under section 1983 with the common-law tort rules of

2 damages, stating at page 258, “In [some] cases, it may be appropriate to apply the tort rules of damages

3 directly to the § 1983 action. (citation omitted) In other cases, the interests protected by a particular
4 constitutional right may not also be protected by an analogous branch of the common law torts.” At the
5
conclusion of its analysis, at page 266, the Supreme Court stated, 6

7

Common-law courts traditionally have vindicated certain ‘absolute’ rights that are not shown to have caused actual injury through the award of a

8

nominal sum of money. By making the deprivation of such rights actionable for nominal damages without proof of actual injury, the law

9

recognizes the importance to organized society that those rights be scrupulously observed; but at the same time, it remains true to the principle

10

that substantial damages should be awarded only to compensate actual injury or, the case of exemplary or punitive damages, to deter or punish

11

malicious deprivations of rights.

12

Of course, a plaintiff seeking to vindicate an ‘absolute’ right (such as a constitutional right or

13 some statutory rights) must meet the ‘case or controversy’ requirement in federal court that is articulated

14 in the doctrine of standing. When the absolute right sought to be vindicated is a plaintiff’s private right,

15 the “[Supreme Court’s] contemporary decisions have not required a plaintiff to assert an actual injury
16 beyond the violation of his personal legal rights to satisfy the ‘injury-in-fact’ requirement.” Spokeo, Inc.
17 v. Robins, ___ U.S. ___, 136 S.Ct. 1540, 1552 (2016) (Thomas, J. concurring) (citing Carey v. Piphus,
18
19 supra, 435 U.S. at 266.)

20

Whether a plaintiff has suffered actual damages caused by a constitutional violation is irrelevant

21 to the legal question whether the plaintiff is entitled to judgment and nominal damages. “If [the trier of

22 fact] finds a constitutional violation, an award of nominal damages is mandatory, not permissive.” Floyd
23 v. Laws, 929 F.2d 1390, 1402-1403 (9th Cir. 1991); accord, Schneider v. County of San Diego, 285 F.3d 24
784, 794-795 (9th Cir. 2002). 25
In a recent Ninth Circuit case before Justice William Fletcher, Bayer v. Neiman Marcus Group, 26 27 Inc., 861 F.3d 853 (9th Cir. 2017), in a lawsuit alleging interference with plaintiff’s rights under the

28 Americans with Disabilities Act in violation of 42 U.S.C. § 12203(b), the court held that section 12203

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1 authorizes courts to award nominal damages as equitable relief when complete justice requires, and

2 hence reversed the trial court’s order finding the action moot and granting summary judgment to Neiman
3 Marcus. Citing Carey v. Phiphus, supra, the court stated, “nominal damages are divorced from any
4 compensatory purpose. . . . [N]ominal damages are awarded to vindicate rights, the infringement of
5 which has not caused actual, provable injury.” Id. at 872. [Plaintiff Bayer was no longer an employee of
6
7 Neiman Marcus, had no expectation of working again for the company, and earlier proceedings had

8 confirmed that he was not bound by the company’s mandatory arbitration terms that had been imposed

9 on current employees.]

10

The opinion in Bayer emphasizes that, “A claim for nominal damages that seeks to vindicate a

11 constitutional right is not moot. See Jacobs v. Clark County Sch. Dist., 526 F.3d 419, 425-426 (9th Cir. 12
2008).” Id. at 871, n. 7. Further, “A live claim for nominal damages will prevent dismissal for mootness. 13 14 Bernhardt v. County of Los Angeles, 279 F.3d 862, 872 (9th Cir. 2002).” Id. at 868. In Bayer, the plaintiff

15 did not state a separate claim for nominal damages in the complaint, but he did assert a claim for

16 damages and a general prayer for other relief as the district court deemed proper; he also explicitly

17 argued he was entitled to nominal damages in opposing summary judgment. Id. at 869.

18

Despite the unavailability of injunctive or declaratory relief in Bayer, the plaintiff was entitled as

19 a matter of law to an award of nominal damages. Similarly, Plaintiffs’ claims herein for nominal
20
damages are not moot, regardless whether injunctive or declaratory relief is available. Plaintiffs have 21

22 established that there is no genuine dispute in regard to their entitlement to an order granting Plaintiffs

23 partial summary judgment of their claim for violation of their Sixth Amendment rights pursuant to

24 Rothgery, thus, under the reasoning of Carey v. Piphus, they are each entitled to an award of nominal

25 damages ($1.00) for such violation.

26 6.
27
28

PLAINTIFFS ARE ENTITLED TO DECLARATORY JUDGMENT Plaintiffs are entitled (1) to declaratory judgment pursuant to Federal Rules of Civil Procedure,

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1 rule 57, and 28 U.S.C. 2201(a) that Defendant’s Policy of withholding representation for a period of 5 to

2 13 days, and sometimes longer, to criminal indigent detainees violates Plaintiffs’ constitutional rights

3 under the Sixth Amendment and the Rothgery case, and (2) Plaintiffs are entitled to declaratory judgment
4 that the Public Defender violated California Government Code section 27706 by failing to appear at “all
5
stages” of the proceedings, including the first arraignment stage. 6

7

Federal law governs the propriety of declaratory relief under FRCP rule 57, and 28 U.S.C.

8 2201(a). Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 674, 70 S.Ct. 876 (1950). The Article

9 III, § 2 ‘case or controversy’ requirement implies that, for a plaintiff to have standing to assert a claim for
10 declaratory relief, the plaintiff must face an imminent or actual injury, not an injury that has not occurred 11
and is conjectural or based on a remote contingency. Burlington Northern R. Co. v. Crow Tribal Council, 12
940 F.2d 1239, 1243-1244 (9th Cir. 1991). Also, in order to establish federal jurisdiction, the named 13 14 plaintiff must be an “interested party” in the case or controversy at issue. Coakley v. Sunn, 895 F.2d 604, 15 606 (9th Cir. 1990). The requested declaratory relief must redress the injury from which the plaintiff

16 suffers. Id. At 607. [Governing federal statute did not obligate a state participating in the AFDC program

17 to provide for any exceptions to the ineligibility period mandate, hence granting the declaratory relief
18 requested would leave the position of plaintiffs unchanged.] 19
A case requesting declaratory relief becomes moot when a court is no longer able to grant 20
effective relief because the dispute has been completely resolved through other means, such as settlement 21
22 and release, or because it is unlikely that the precise conditions of the case will recur; however, the

23 unavailability of injunctive relief does not bar declaratory judgment. Super Tire Engineering Co. v.

24 McCorkle, 416 U.S. 115, 123-124, 94 S.Ct. 1694 (1974) [Labor dispute where preliminary injunction

25 was dissolved because workers returned to work did not prevent declaratory relief.]
26 The issue of mootness of a constitutional violation was decided by the Supreme Court in a case
27 involving a claim for declaratory and injunctive relief by a corporation operating a nude erotic dancing
28

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1 club that was prevented from having its dancers be completely nude by an ordinance enacted by the City
2 of Erie, Pennsylvania that made it a summary offense to intentionally appear in public in a “state of 3
nudity.” City of Erie v. Pap’s A.M, 529 U.S. 277, 120 S.Ct 1382 (2000). The Pennsylvania state trial 4
court struck down the public nudity section of the ordinance as an unconstitutional violation of the 5
corporation’s right to freedom of expression as protected by the First and Fourteenth Amendments, and 6 7 the Pennsylvania Supreme Court reached the same conclusion. After certiorari was granted by the U.S.
8 Supreme Court, the corporation filed a motion to dismiss the case as moot, claiming that it no longer
9 operated the ‘Kandyland’ club as a nude dancing club, and that it did not operate a nude dancing club at
10 any other location. 11
The Supreme Court addressed the threshold “justiciability question,” stating at page 287, “[A] 12
case is moot when the issues presented are no longer ‘live’ or the parties lack a legally cognizable 13 14 interest in the outcome. (Citations omitted.) The underlying concern is that, when the challenged conduct
15 ceases such that there is no reasonable expectation that the wrong will be repeated (citation omitted), then
16 it becomes impossible for the court to grant any effectual relief whatever to [the] prevailing party.
17 (Citation omitted.) In that case, any opinion as to the legality of the challenged action would be
18 advisory.” (Internal quotes omitted.) The Court then found that the corporation still had a stake in the 19
outcome of the case because it still operated the company and thus could resume at will its nude dancing 20
operations, and that the City still had on ongoing interest in enforcing the challenged provisions of its 21 22 ordinance. Id. at 288. Accordingly, the City of Erie case was not moot and the Court could determine the
23 merits of the issue. Id. at 289. Similarly, Plaintiffs’ claim for declaratory judgment is not moot because
24 the Defendant herein could at any time fully resume its decades-old Policy of not providing
25 representation to indigent detainees for five to thirteen days, or sometimes longer; and, as shown above, 26
it still follows the old Policy in certain specific courts. 27
The Ninth Circuit follows the list of factors identified in Allstate Ins. Co. v. Herron, 634 F.3d 28

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1 1101, 1107 (9th Cir. 2011), per Brillhart v. Excess Ins. Co., 316 U.S. 491, 495, 62 S.Ct. 1173 (1942), for

2 guiding the trial court’s determination whether to exercise its discretion to grant the requested declaratory
3 relief; to wit, whether a declaratory judgment would involve a needless determination of state-law issues
4 (the present matter involves primarily a federal Rothgery claim), whether it would encourage forum
5 shopping (this court is the proper venue for asserting a Rothgery claim), whether it risks duplicative
6
7 litigation (there are no state-court proceedings so far as Plaintiffs are aware, and no duplicative federal

8 actions), whether it would resolve all aspects of the issue in a single proceeding (same), whether it would

9 serve a useful purpose in clarifying the legal relations at issue (Defendant has continuously contended

10 that its Policy never violated the Sixth Amendment rights articulated in Rothgery, and a declaratory

11 judgment would go far in educating the public regarding their Sixth Amendment rights under Rothgery).
12 In sum, the Court should grant Plaintiffs’ declaratory judgment in their favor.
13

14

VI CONCLUSION

15 The Public Defender has admitted that all factually innocent people subjected to the Policy
16 remained in jail one to two weeks longer than necessary as a result of the delay in providing counsel. She
17

18 also admitted that an enormous percentage of detainees were held unnecessarily due to the denial of

19 counsel when they would have been released on bail or recognizance had counsel been provided earlier.

20

As Professor Boruchowitz chronicles in his report, unnecessary time spent in jail can have a

21 devastating impact on the detainee’s life. Here, the call of the question posed by the Supreme Court, and
22 narrowed by the Ninth Circuit Court of Appeals and this Court is: Is it reasonable to arbitrarily and 23
indiscriminately leave people in jail without counsel for a week or two without any justification; or is this 24
delay unreasonable because there is no reason for it, and because it gratuitously punishes the factually 25
26 innocent and ignores the needs of those who require legal attention to obtain release on bail, mount their

27 defenses, or receive medical or psychiatric care.

28

This lawsuit seeks structural reform of a systematic practice of arbitrarily denying counsel to all

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1 detainees, without reference to the facts of their criminal cases, their health, investigative needs, or any

2 other factor. Defendant, however, is fixated on the inappropriate Strickland requirement of case-by-case
3 analysis. Indeed, through Defendant’s silence and its explicit instructions to its expert to microscopically
4 restrict his analysis to the underlying facts of the named Plaintiffs’ criminal cases, as opposed to the
5 conspicuous potential for prejudice inherent in the Policy as applied to everyone, Defendant adoptively
6
7 admits, through silence, that the Policy was patently unreasonable. Given the recognition that it cannot

8 prevail on the question posed by the Court, Defendant understandably ducks the Court’s question and

9 attempts to reframe the issue based upon the unrelated question that it would prefer to answer: which is

10 whether the named Plaintiffs lack standing to challenge the patently unreasonable Policy because guilt in

11 their underlying criminal cases was so clear that they could not have benefitted from earlier provision of
12 counsel.
13

14

Defendant’s attempt to invoke Strickland yet again is totally inappropriate. Plaintiffs were

15 arbitrarily denied counsel, in the same fashion as the tens of thousands of others, without the facts of

16 their individual criminal cases having any bearing on the length of the delay in appointment of counsel,

17 pursuant to Defendant’s written Policy; and that gives them standing to seek systemic reform. Plaintiffs

18 were injured by this Policy in terms of denial of rights and impaired investigation. However, they are
19 seeking prospective relief and are not seeking to overturn their convictions. Therefore, the facts of their
20 underlying cases, beyond the fact that they were subjected to Defendant’s Policy, are irrelevant to this
21
22 discussion.

23

Dated: November 22, 2017

CHRISTOPHER MARTIN, ATTORNEY AT LAW

MICHAEL DIETRICK, ATTORNEY AT LAW

24

By:

/S/

CHRISTOPHER MARTIN

25

Attorney for Plaintiffs

26

By:

/S/

27

MICHAEL DIETRICK

Attorney for Plaintiffs

28

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1 SHARON L. ANDERSON (SBN 94814) County Counsel
2 D. CAMERON BAKER (SBN 154432) Deputy County Counsel
3 COUNTY OF CONTRA COSTA 651 Pine Street, Ninth Floor
4 Martinez, California 94553 Telephone: (925) 335-1800
5 Facsimile: (925) 335-1866 Electronic Mail: cameron.baker@cc.cccounty.us
6
Attorneys for Defendant 7 CONTRA COSTA COUNTY
8
UNITED STATES DISTRICT COURT 9
NORTHERN DISTRICT OF CALIFORNIA 10

11

JOHN FARROW, JEROME WADE, on No. C12-6495 JCS

12 their behalf, and on behalf of all others

similarly situated,

NOTICE OF MOTION AND MOTION OF

13 Plaintiffs,

DEFENDANT CONTRA COSTA COUNTY FOR SUMMARY JUDGMENT OR PARTIAL

14

SUMMARY JUDGMENT

v.

15 CONTRA COSTA COUNTY,
16 Defendant.
17
18

Date: January 19, 2018 Time: 9:00 a.m. Crtrm: G, 15th Floor Judge: Hon. Joseph C. Spero Presiding Date Action Filed: December 21, 2012 Trial Date: None Assigned

19

20

21

22

23

24

25

26

27

28

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1

TABLE OF CONTENTS

2 MEMORANDUM OF POINTS AND AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

3 I. INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

4 II. ISSUES TO BE DECIDED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

5 III. SUMMARY OF RELEVANT FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

6

A. Criminal Prosecution of Farrow. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

7

B. Criminal Prosecution of Jerome Wade. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

8

C. History of Public Defender Staffing at the Initial Appearance. . . . . . . . . . . . . . 12

9

D. Procedural Background. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

10 IV. LEGAL ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

11

A. Legal Standard. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

12

B. The Court Should Grant Summary Judgment on the Sixth Amendment

Claim in Favor of the County. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

13

1. There Was No Violation of Either Plaintiff’s Sixth Amendment

14

Right to Counsel. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

15

a. The Applicable Legal Standard. . . . . . . . . . . . . . . . . . . . . . . . . . . 18

16

b. California’s Criminal Process. . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

17

c. Plaintiffs’ Claims and The Facts of Their Individual

Proceedings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

18

i. Farrow. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

19

ii. Wade.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

20

2. There Was No Deliberate Indifference to Plaintiffs’ Sixth

21

Amendment Rights. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

22

3. The County did not Cause any Violation of Plaintiffs’ Sixth

Amendment Rights. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

23

C. Farrow is Collaterally Estopped from Asserting A Violation of the Sixth

24

Amendment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

25

D. The Court Should Dismiss Plaintiffs’ State Law Claim Based on an

Alleged Violation of Government Code Section 27706 due to Lack of

26

Subject Matter Jurisdiction or Grant Summary Judgment as to that Claim. . . . 28

27

E. Plaintiffs’ Claims For Injunctive and Declaratory Relief Are Moot and

Should be Dismissed. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

28

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1 2 3 V. 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

1. “Capable of Repetition Yet Evading Review”. . . . . . . . . . . . . . . . . . . . . 32 2. “Voluntary Cessation”. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 CONCLUSION.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

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1

TABLE OF AUTHORITIES

2 Cases

3 Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 17

4 Bhan v. NME Hospitals, Inc., 929 F.2d 1404 (9th Cir. 1991). . . . . . . . . . . . . . . . . . . . . . . . . . 17

5 Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343 (1988).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

6 Celotex Corp. v. Catrett, 477 U.S. 317 (1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 17

7 Chamber of Commerce of United States of America v. U.S. Dept. Of Energy, 627 F.2d 289 (D.C. Cir. 1980). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
8 Chi. United Indus. v. City of Chicago, 445 F.3d 940 (7th Cir. 2006). . . . . . . . . . . . . . . . . 33, 34
9 Church of Scientology of California v. United States, 506 U.S. 9 (1992). . . . . . . . . . . . . . . . . 32
10 City of Canton v. Harris, 489 U.S. 378 (1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
11 City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283 (1982).. . . . . . . . . . . . . . . . . . . . . . . 34
12 Construction Dept. v. Rockwell Int’l Corp., 7 F.3d 1487 (10th Cir. 1993). . . . . . . . . . . . . . . . 33
13 County of Los Angeles v. Davis, 440 U.S. 625 (1979).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
14 Farrow v. Lipetzky, 637 F. App’x 986 (9th Cir. 2016). . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 18
15 Florida v. Nixon, 543 U.S. 175 S. Ct. 551 (2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
16 ForestKeeper v. Benson, 108 F.Supp.3d 917 (E.D. Cal. 2015). . . . . . . . . . . . . . . . . . . . . . . . . 34
17 Gallegos v. Ryan, 820 F.3d 1013 (9th Cir. 2016). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
18 Gerstein v. Pugh, 420 U.S. 103 (1975). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
19 Gibson v. County of Washoe, 290 F.3d 1175 (9th Cir. 2002). . . . . . . . . . . . . . . . . . . . . . . . . . 26
20 Goodworth Holdings, Inc. v. Suh, 239 F. Supp. 2d 947 (N.D. Cal. 2002). . . . . . . . . . . . . . . . 17
21 Grant v. Palomares, 2014 U.S. Dist. LEXIS 16748 (E.D. Cal. Feb. 5, 2014). . . . . . . . . . . . . 17
22 Green v. Ancora-Citronelle Corp., 577 F.2d 1380 (9th Cir. 1978). . . . . . . . . . . . . . . . . . . . . . 28
23 Hamilton v. Alabama, 368 U.S. 52 (1961). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 19, 21
24 Hinkle Northwest, Inc. v. Securities & Exchange Comm’n,
25 641 F.2d 1304 (9th Cir. 1981). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

26 In re Brindle, 91 Cal. App. 3d 660 (1979).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29, 30

27 In Re Edward S., 173 Cal. App. 4th 387 (2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

28 Ingram v. Justice Court for Lake Valley Judicial Dist., 69 Cal. 2d 832 (1968). . . . . . . . . . . . 29

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1 Jimmy v. Buscemi, 2013 U.S. Dist. LEXIS 31541 (D.S.C. March 7, 2013). . . . . . . . . . . . . . . 34 2 John v. City of El Monte, 515 F.3d 936 (9th Cir. 2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 3 Joshua P. v. Superior Court, 226 Cal. App. 4th 957 (2014). . . . . . . . . . . . . . . . . . . . . . . . 29, 30 4 Moor v. County of Alameda, 411 U.S. 693 (1973). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 5 Native Village of Noatak v. Blatchford, 38 F.3d 1505 (9th Cir. 1994). . . . . . . . . . . . . . . . 32-35 6 Nome Eskimo Community v. Babbitt, 67 F.3d 813 (9th Cir. 1995). . . . . . . . . . . . . . . . . . . . . . 34 7 Oviatt by and through Waugh v. Pearce, 954 F.2d 1470 (9th Cir. 1992). . . . . . . . . . . . . . . . . 26 8 People v. Mattson, 51 Cal. 2d 777 (1959). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 9 Plumeau v. Sch. Dist. No. 40 Cnty. of Yamhill, 130 F.3d 432 (9th Cir. 1997). . . . . . . . . . . . . 18 10 Preiser v. Newkirk, 422 U.S. 395 (1975).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 11 PUC v. FERC, 100 F.3d 1451 (9th Cir. 1996).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 12 Roswall v. Municipal Court, 89 Cal. App. 3d 467 (1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 13 Rothgery v. Gillespie County, 554 U.S. 191 (2008). . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 18, 19 14 Sanders v. Cullen, 2017 U.S. App. LEXIS 20080 (9th Cir. October 13, 2017). . . . . . . . . . . . 20 15 Sanford v. MemberWorks, Inc., 625 F.3d 550 (9th Cir. 2010). . . . . . . . . . . . . . . . . . . . . . . . . 29 16 Sheely v. MRI Radiology Network, P.A., 505 F.3d 1173 (11th Cir. 2007). . . . . . . . . . . . . . . . 34 17 Strickland v. Washington, 466 U.S. 668 (1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 18 T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626 (9th Cir. 1987). . 16, 17 19 Teitelbaum Furs, Inc. v. Dominion Ins. Co., Ltd., 58 Cal. 2d 601 (1962). . . . . . . . . . . . . . . . . 28 20 Troiano v. Supervisor of Elections in Palm Beach County,
382 F.3d 1276 (11th Circ. 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 21
Tuleberg Auto Body Garage & Tow v. City of Stockton, 2008 U.S. Dist. 22 LEXIS 23683 (E.D. Cal. March 28, 2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33, 34 23 Uhl v. Municipal Court, 37 Cal. App. 3d 526 (1974). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 24 United States Parole Comm’n v. Geraghty, 445 U.S. 388 (1980).. . . . . . . . . . . . . . . . . . . . . . 32 25 United States v. Ash, 413 U.S. 300 (1973).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 26 United States v. Cronic, 466 U.S. 648 (1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 27 United States v. Gonzalez-Lopez, 548 U.S. 140 (2006).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 28 United States v. Gouveia, 467 U.S. 180 (1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

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1 United States v. Sanchez-Gomez, 859 F.3d 649 (9th Cir. 2017). . . . . . . . . . . . . . . . . . . . . . . . 32 2 United States v. Wade, 388 U.S. 218 (1967). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 19, 21 3 Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054 (9th Cir. 2002). . . . . . . . . . . . . . . . . . . . . 16 4 Workman v. Blades, 2016 U.S. App. LEXIS 5428 (9th Cir. March 23, 2016). . . . . . . . . . . . . 20 5 6 Statutes and Rules 7 42 United States Code Section 1983. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 16, 28 8 California Government Code Section 27706.. . . . . . . . . . . . . . . . . . . . . . . . . 1-3, 16, 28, 29, 31 9 California Government Code Section 27707.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 10 California Penal Code Section 1049.5. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 11 California Penal Code Section 1050. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 12 California Penal Code Section 1382. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 13 California Penal Code Section 859. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 31 14 California Penal Code Section 987. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 15 California Penal Code Section 987.2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 16 California Penal Code Section 988. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 17 California State Bar Rule of Professional Code 3-310(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 18 Federal Practice and Procedure Section 3533.7, at 354 (2d ed. 1984). . . . . . . . . . . . . . . . . . . 33 19 Federal Rule of Civil Procedure 56. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 16, 17 20 21 22 23 24 25 26 27 28

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1

PLEASE TAKE NOTICE that on January 19, 2018, at 9:00 a.m., or as soon thereafter

2 as the matter may be heard in Courtroom G, 15th Floor, of the above-entitled court, located at

3 450 Golden Gate Avenue, San Francisco, California, defendant Contra Costa County will and

4 hereby does move this Court for an order for summary judgment, or partial summary

5 judgment, pursuant to Federal Rule of Civil Procedure 56 with respect to the claims brought by

6 Plaintiffs John Farrow and Jerome Wade, specifically their claims under 42 U.S.C. section

7 1983 (“Section 1983”) (First Cause of Action in the Third Amended Complaint) that Contra

8 Costa County Public Defender Robin Lipetzky violated Farrow’s and Wade’s rights under the

9 Sixth Amendment and their claims for a Writ of Mandate based on allegations that Lipetzky 10 violated California Government Code section 27706 (Third Cause of Action).1 See Third

11 Amended Complaint (“TAC”), ECF No. 91. As stated below, summary judgment is

12 appropriate for the following reasons:

13

1) There was no violation of the Sixth Amendment because there was no unreasonable

14 delay in appointment of counsel under Rothgery;

15

2) Farrow is collaterally estopped from alleging a violation of his Sixth Amendment

16 right to counsel based on the failure to timely appoint counsel because he raised this issue with

17 the state court on September 15, 2011, and the state court ruled against him on that date;

18

3) In the absence of a viable federal claim, the Court should dismiss the remaining state

19 law claim for lack of subject matter jurisdiction;

20

4) If the Court elects to retain jurisdiction over Farrow and Wade’s state law claim that

21 the County violated Government Code section 27706, summary judgment on that claim is

22 appropriate because there was no direct request for representation made by either Farrow or

23 Wade to the Public Defender, the Court did not appoint the Public Defender to represent either

24 Plaintiff, and the Public Defender, including the Alternate Defender’s Office (“ADO”), could

25 not represent either individual due to a conflict of interest;

26

5) Plaintiffs’ claims for injunctive and declaratory relief should be denied as moot

27 1 On April 28, 2017, the Court dismissed the Second Cause of Action under the Bane Act with prejudice. April 28, 2017 Order Regarding Motion to Dismiss Third Amended Complaint at 30:6-9,
28 ECF No. 107.

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1 because Lipetzky has represented in-custody criminal defendants at their initial appearances

2 since January 9, 2013, and had commenced the process of instituting this representation prior

3 to the filing of this litigation; and

4

6) Farrow cannot assert a state claim involving monetary relief where he failed to file a

5 government claim within the time required.

6

This motion is supported by this notice, the memorandum of points and authorities, the

7 accompanying Declarations of Robin Lipetzky and D. Cameron Baker and exhibits thereto, all

8 the papers and records on file in this action, and on such other materials as may be submitted at

9 or before the hearing on the motion.

10

MEMORANDUM OF POINTS AND AUTHORITIES

11 I. INTRODUCTION

12

In this case, Farrow and Wade assert that Contra Costa County had a written policy of

13 not providing representation by the Public Defender to in-custody criminal defendants at their

14 initial appearance in Contra Costa County Superior Court and delaying representation until the

15 second appearance in that court, which allegedly took place 5 to 13 days later. See TAC, ¶1 at

16 2. Plaintiffs contend that this policy violated their Sixth Amendment right to counsel and

17 California Government Code section 27706. Id., ¶¶18, 61-63. As set out below, the

18 undisputed facts warrant summary judgment in favor of the County on these two claims.

19

Summary judgment should be granted on the Sixth Amendment claim because Plaintiffs

20 cannot establish all of the necessary Monell elements. There was no underlying violation of

21 the Sixth Amendment because the short delay in obtaining counsel did not cause any actual

22 prejudice, nor pose any grave potential for prejudice, to Plaintiffs’ ability to defend against the

23 charges against them. Further, the County was not “deliberately indifferent” to the risk of

24 injury to their Sixth Amendment rights and the County’s “policy” did not cause the alleged

25 violation.

26

In addition to these points, collateral estoppel bars Farrow from asserting his Sixth

27 Amendment claim as a result of collateral estoppel.

28

Plaintiff’s Government Code section 27706 claim fails because the County never had a

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1 duty under that section to represent Plaintiffs where Plaintiffs did not make a direct request for

2 representation, the Public Defender was never appointed by the state court, and the Public

3 Defender was ethically barred from representing Plaintiffs. Further, Plaintiffs cannot point to

4 anything that the Public Defender could have done that wasn’t done.

5

Finally, summary judgment should be granted as to Plaintiffs’ claims for injunctive and

6 declaratory relief because they are moot because the County has funded and staffed the initial

7 appearances of in-custody defendants since January 9, 2013, and the Public Defender commits

8 to continuing this practice.

9

As discussed in greater depth below, summary judgment should be granted in the

10 County’s favor.

11 II. ISSUES TO BE DECIDED

12

1. Do the undisputed facts establish that the County violated Farrow’s and Wade’s

13 Sixth Amendment rights where, inter alia, each received counsel within a reasonable time

14 after attachment of the right to counsel, and there was neither a grave potential for prejudice

15 nor actual prejudice to their criminal proceedings based on the timing of when they received

16 the assistance of counsel?

17

2. Is Farrow collaterally estopped from asserting a violation of his Sixth

18 Amendment rights due to the failure to appoint counsel at his initial appearance where he

19 raised that issue with the state court and the state court ruled against him, finding that Farrow’s

20 rights were not violated?

21

3. In the absence of a viable federal claim, should the Court dismiss the remaining

22 state law claim for lack of subject matter jurisdiction?

23

4. Can Farrow or Wade assert a violation of Government Code section 27706

24 where there was no direct request for representation to the Public Defender’s Office, the Court

25 did not appoint the Public Defender to represent either Plaintiff, and the Public Defender could

26 not represent either Plaintiff due to a conflict of interest?

27

5. Are Plaintiffs’ claims for injunctive and declaratory relief moot where the

28 County has funded and staffed the initial appearances of in-custody criminal defendants since

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1 January 9, 2013, commenced the process prior to the initiation of this action, and is commited

2 to continue this practice in the future?

3

6. Can Farrow assert a state claim involving monetary relief where he failed to file

4 a government claim within the time required?

5 III. SUMMARY OF RELEVANT FACTS

6

Because the Court has not yet certified a class in this case, this motion focuses on the

7 facts and events occurring in Farrow’s and Wade’s state court criminal proceedings. July 14,

8 2017 Transcript, ECF No. 117, at 19:14-16 (summary judgment will be on the individual

9 cases). The County first sets out the undisputed facts applicable to Farrow and then the

10 undisputed facts applicable to Wade.

11

A. Criminal Prosecution of Farrow

12

On August 30, 2011, officers from the Concord police department arrested Farrow for

13 domestic violence charges arising from a physical altercation with his girlfriend, Jessica

14 Fakhimi. Deposition of John Farrow (“Farrow Depo.”) at 12:18-13:1, attached as Exhibit A to

15 the Declaration of D. Cameron Baker (“Baker Decl.”). Following his arrest, Farrow was

16 detained at the Martinez Detention Facility (“MDF”). Id. at 17:3-6.

17

On Friday, September 2, 2011, Farrow had his initial appearance in state court before

18 Judge Nancy Stark. September 2, 2011 Clerk’s Docket and Minutes, Exhibit A to the

19 Declaration of Robin Lipetzky (“Lipetzky Decl.”) At this initial hearing, Judge Stark asked

20 Farrow if he wanted an attorney and if he could afford an attorney. Farrow Depo. at 18:25-

21 19:8. After Farrow answered affirmatively to the first question and negatively to the second, 22 Judge Stark set Farrow’s bail,2 referred Farrow to the Public Defender’s Office, and scheduled

23 a “Counsel & Plea” hearing for September 15, 2011. Id.; September 2, 2011 Clerk’s Docket

24 and Minutes, Lipetzky Decl., Exhibit A. Farrow, who was present at the hearing, does not

25 know why Judge Stark scheduled the Counsel & Plea hearing for September 15, 2011, as

26 2 Farrow’s bail was set at $106,000. Plaintiff’s attorney, Christopher Martin, who was also their
27 criminal attorney, never formally requested that the Court lower that bail amount. Plaintiff’s Response to Request for Admissions to Plaintiff John Farrow, Set Two (“Farrow Responses to Second Set of
28 RFA’s”), Response to Request No. 20, Exhibit C to the Baker Decl.

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1 opposed to a week earlier. Plaintiff’s Response to Special Interrogatories to Plaintiff John

2 Farrow, Set Two (“Farrow Interrogatory Responses”), Response to Special Interrogatory No.

3 22, Exhibit B to the Baker Decl.

4

On Tuesday, September 6, 2011, the next court day after September 2,3 a paralegal from

5 the Contra Costa County Public Defender’s Office met with Farrow at MDF. Lipetkzy Decl.,

6 ¶6; see also Farrow Responses to Second Set of RFA’s, Response to Request for Admission

7 No. 7, Exhibit C to the Baker Decl. At this meeting, the paralegal made various inquiries

8 about Farrow’s case and eligibility for representation. Lipetkzy Decl., ¶6; see also Applicant

9 Interview Packet at 1-4, Exhibit B to the Lipetzky Decl.; see also TAC, ¶4 at 3 (“[d]uring

10 initial client interview, a paralegal, law clerk or attorney will [] determine financial eligibility

11 ... discuss confidentially the client’s background ... [and] the specifics of the client’s case”]).

12 Based on her interview of Farrow, the paralegal wrote “[Defendant] would like copy of police

13 report” in the space for “Notes re case progress, problems, settlement.” Applicant Interview

14 Packet at 3, Liptezky Decl., Exhibit B.

15

Following referral of Farrow’s case to the Public Defender’s Office, Robin Lipetzky

16 determined that the main Public Defender’s Office and the Alternate Defender’s Office

17 (“ADO”) had to decline representation of Farrow’s case, even though he was eligible for

18 representation, due to ethical concerns arising from excessive case loads. Lipetzky Decl., ¶8;

19 see also Deposition of Robin Lipetzky (“Lipetzky Depo.”) at 27:14-20, attached as Exhibit D

20 to the Baker Decl. In making her decision regarding whether to represent Farrow, Lipetzky

21 considered the list of criminal cases scheduled for September 15, 2011 “Counsel & Plea”

22 calendar, the reported case loads of her staff, and the nature of Farrow’s case. Liptezky Decl.,

23 ¶8. On September 14, Lipetzky referred Farrow’s case to the Contra Costa County Conflict 24 Panel for referral to a private attorney.4 Id. As part of the referral, Lipetzky’s office provided

25 copies of the complaint and the completed Criminal Conflict Program intake sheet to the

26 3 Monday, September 5, 2011, was the Labor Day holiday.
27 4 At some point, Lipetzky filed a declaration with the Court stating her decision to decline
28 representation of Farrow. Lipetzky Decl., ¶8 and Exhibit C thereto.

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1 Conflict Panel. Id.; see also Exhibit E5 to the Baker Decl. (copy of completed intake sheet and

2 first two pages of complaint produced by Plaintiffs).

3

On September 14, 2011, at approximately 1:57 p.m., the Conflict Panel referred

4 Farrow’s case to Christopher Martin, who had agreed to accept the representation. Martin

5 Depo. at 9:25-10:6, Exhibit F to the Baker Decl. It is unclear exactly when the Conflict Panel

6 first contacted Martin about this representation. Martin Depo. at 10:11-11:5. The Conflict

7 Panel subsequently provided Martin with a copy of the “crimetime report,” which sets forth the

8 charges and potential exposure, possibly the complaint, and information respecting the next

9 hearing. Id. at 10:11-11:5; September 14, 2011 email to C. Martin, Exhibit G to the Baker

10 Decl.

11

Martin “didn’t do anything” to prepare for the September 15 hearing. Martin Depo. at

12 11:25-12:7; Farrow Responses to Second Set of RFA’s, Response to Request No. 9, Exhibit C

13 to the Baker Decl.; see also Farrow Timesheets, Exhibit H to the Baker Decl. (no entry for

14 September 14, 2011). On September 15, immediately prior to the hearing, Martin had a

15 conversation with Farrow while in the courtroom. Martin Depo. at 13:23-14:3, 14:22-24;

16 Farrow Depo. at 30:8-11. Martin generally used this initial conversation as a means to

17 introduce himself and to obtain information about preliminary issues, such as bail and “any

18 other pressing concerns that the client might have.” Martin Depo. at 14:25-15:7. In Martin’s

19 discussion with Farrow on that morning, Farrow raised concerns about being in custody for “a

20 couple of weeks without any representation.” Id. at 15:9-14.

21

At the September 15, 2011 hearing, which was held before Contra Costa Superior Court

22 Judge Clare Maeir, Martin was appointed to represent Farrow. TAC, ¶29. Prior to entering a

23 plea for Farrow, Martin objected to the “bifurcated arraignment process,” arguing

24

I would like to object to the fact that Mr. Farrow has been in custody now

13 days without a lawyer. It’s my understanding that he went through the

25

bifurcated arraignment process and at his initial appearance he did not have a

lawyer.

26

5 These documents were produced by the Contra Costa County Conflict Panel pursuant to subpoena. 27 Baker Decl., ¶6. Christopher Martin testified that the Conflict Panel would sometimes provide a copy

of the complaint, if in its possession, to an attorney accepting a referral. Deposition of Christopher 28 Martin (“Martin Depo.”) at 11:7-9, Exhibit F to the Baker Decl.

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1

I would direct the Court to People v. Cox, 1987, 193 Cal.App.3d 1434,

where the Court states, “Although arraignment is a critical stage of the

2

proceeding entitling the defendant to an attorney, the absence of an attorney is

not such a grievous error that it compels a reversal without a showing of

3

prejudice.”

4

So it clearly is an error, and the issue of prejudice in this case is that he

has been denied his speedy trial rights. And in that regard, if there’s any

5

question in the Court’s mind, I would ask for an evidentiary hearing.

6 September 15, 2011 Hearing Transcript (“September 15, 2011 Transcript”) at 3:15-4:1, Exhibit

7 I to the Baker Decl.; see also Farrow Interrogatory Responses, Response to Special

8 Interrogatory No. 18, Exhibit B to the Baker Decl.

9

Judge Maier overruled Martin’s objection, stating:

10

Mr. Martin, in a different case you’ve litigated this with me, you took it up on a

writ, it was summarily denied by the First District Court of Appeal. So based on

11

my prior ruling, my prior research in this matter, I do not find that your client’s

rights have been violated in any fashion; and, therefore, are you prepared to enter

12

a plea on his behalf?

13 September 15, 2011 Transcript at 4:2-8. Martin then entered a plea on behalf of Farrow and

14 did not waive time with respect to scheduling the preliminary hearing, which was set for

15 September 27, 2011. Id. at 4:9-12, 18:5-20.

16

At the September 27, 2011 preliminary hearing, the only witness was Jessica Fakhimi,

17 the complaining witness. Martin Depo. at 19:7-12. Fakhimi testified that she requested

18 certain neighbors to contact the police and provided identifying information respecting those

19 neighbors. See Farrow Interrogatory Responses, Response to Special Interrogatory No. 19

20 (identifying Fakhimi’s preliminary hearing testimony respecting the location of the neighbors’

21 house as the basis for his contention that the witnesses lived at 5303 Concerto Circle).

22

On November 7, 2011, 41 days after the preliminary hearing, Martin contacted an

23 investigator (Kent Ringgenberg with Danville Investigations) regarding Farrow’s case.

24 Farrow Responses to Second Set of RFA’s, Response to Request No. 11, Exhibit C to the

25 Baker Decl. At Martin’s deposition, in response to being asked why he waited until November

26 7, 2011, to contact Mr. Ringgenberg, he responded:

27

Well, I can’t tell you specifically why I waited until that specific date. I can say

that I requested that he [Ringgenberg] do this based upon the testimony of Ms.

28

Fakhimi, who said during the preliminary hearing, that she had requested help

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1

from two women that were outside of her residence and she decribed what those

women looked like. So at that point they were identifiable people for the

2

investigator to look for to see if, in fact, that occurred.

3 Martin Depo. at 19:24-20:11. One of Ringgenberg’s tasks was to locate and interview the

4 “neighbors” identified by Fakhimi at the preliminary hearing. Id. at 26:1-6.

5

Martin had to obtain authorization from the Conflict Panel to use Ringgenberg as an

6 investigator in the Farrow case, which he did on November 9, 2011. Martin Depo. at 24:12-

7 16; Deposition of Kent Ringgenberg (“Ringgenberg Depo.”) at 11:25-12:10, Exhibit J to the

8 Baker Decl. On November 14, Ringgenberg informed Martin via email that he got Martin’s

9 discovery packet and asked when the trial date was. Martin-Ringgenberg email chain,

10 Deposition Exhibit 56, attached as part of Exhibit F to the Baker Decl.

11

The next morning, November 15, 2011, Martin responded to Ringgenberg stating that

12 the pretrial hearing was set for November 16, that the case “may plead,” and that Ringgenberg

13 should go out “today if possible” to locate the neighbors. Id.; Martin Depo. at 26:1-6.

14 Ringgenberg attempted to locate the neighbors the night of the 15th, but they weren’t home so

15 he left his card. Martin Depo. at 26:8-22; November 16, 2011 Ringgenberg email, Deposition

16 Exhibit 41, attached as part of Exhibit J to the Baker Decl. The next day, Ringgenberg advised

17 Martin via email that he had been unable to contact the neighbors. November 16, 2011

18 Ringgenberg email, Deposition Exhibit 41.

19

In the meantime, in an email to Devon Bell, the Deputy District Attorney assigned to

20 Farrow’s prosecution, dated noon November 15, Martin wrote: “We have our pretrial on Mr.

21 Farrow tomorrow afternoon. I’m wondering if you had a chance to speak with your supervisor

22 about 6 months or, possibly, 9 months as you suggested. I have an investigator in the field

23 now, but I’d prefer to settle it.” Martin November 15, 2011 email, Exhibit K to the Baker

24 Decl. at 2. Twenty minutes later, Bell responded, “I talked with Rachel and she is willing to

25 come down to 270. Let me know if that will resolve it.” Id. Three minutes later, Martin

26 replied “I will see him this afternoon or tomorrow morning and strongly recommend it.” Id.

27

The following day, November 16, Farrow pled guilty and was sentenced to 270 days (9

28 months). Farrow Depo. at 47:10-14; Felony Advisement of Rights, Waiver and Plea Form,

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1 Exhibit L to the Baker Decl. At the hearing, Farrow waived his rights to appeal any of the

2 rulings made in his case. Farrow Depo. at 40:9-25; Response to Request No. 19, Farrow

3 Responses to Second Set of RFA’s. Because the case settled, Ringgenberg made no further

4 efforts to contact the neighbors and they did not contact him. Response to Request No. 21,

5 Farrow Responses to Second Set of RFA’s; see also Deposition of K. Ringgenberg at 13:9-13.

6

On June 26, 2012, Farrow submitted a government claim to Contra Costa County

7 respecting his claims. Farrow Government Claim, Exhibit M to the Baker Decl.. This claim

8 was denied on July 24, 2012. Id. The denial specifically stated that it was being denied as

9 untimely with respect to all events occurring prior to December 26, 2011. Id.

10

B. Criminal Prosecution of Jerome Wade

11

On November 14, 2011, Wade appeared without counsel for his initial appearance

12 before Judge Stark in Department 20. See November 14, 2011 Clerk’s Docket and Minutes,

13 Exhibit N to the Baker Decl. At this hearing, Judge Stark asked Wade if he wanted an attorney

14 and if he could afford an attorney. Deposition of Jerome Wade (“Wade Depo.”) at 18:20-19:2,

15 Exhibit O to the Baker Decl. After Wade responded to these questions, Judge Stark set 16 Wade’s bail6 and scheduled a “Counsel & Plea” hearing for November 21, 2011. November

17 14, 2011 Clerk’s Docket and Minutes. Wade does not know why Judge Stark scheduled the

18 Counsel & Plea hearing for November 21, as opposed to another date. Plaintiffs’ Response to

19 Special Interrogatories to Plaintiff Jerome Wade, Set Two (“Wade Interrogatory Responses”),

20 Response to Special Interrogatory No. 24, Exhibit P to the Baker Decl.

21

On November 17, 2011, the main Public Defender’s Office determined that it had a

22 conflict of interest with respect to representation of Wade because it was representing one of

23 his co-defendants. Lipetzky Decl., ¶9; November 17, 2011 Conflict Memo, Exhibit D to the

24 Lipetzky Decl. The case was therefore transferred to the ADO. Lipetzky Decl., ¶9. On

25 November 18, 2011, the ADO determined that it also had a conflict of interest with respect to

26 representation of Wade because it also was representing one of his co-defendants. Id.;

27 6 Wade’s bail was set at $4,350,000. Martin never formally requested that the Court lower that bail
28 amount. Response to Request No. 21, Wade Response to Second Set of RFA’s.

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1 November 18, 2011 Conflict Memo, Exhibit E to the Lipetzky Decl. The ADO, therefore,

2 refused to represent Wade. Lipetzky Decl., ¶9; see also Headley Affidavit of Conflict, Exhibit

3 Q to the Baker Decl. As a result, Wade’s case was referred to the Conflict Panel. Lipetzky

4 Decl., ¶9.

5

On November 18, 2011, at approximately 10:22 a.m., a representative of the Conflict

6 Panel had a telephone conversation with Martin about representing Wade, in the course of

7 which Martin agreed to represent Wade. Martin Depo. at 31:23-32:19; Deposition Exhibit 59,

8 attached as part of Exhibit F to the Baker Decl. Shortly thereafter, the Conflict Panel

9 confirmed the referral to Martin via email and attached copies of the crimetime report and

10 complaint. Deposition Exhibit 59; Martin Depo. at 32:21-33:5.

11

Martin commenced working on Wade’s case that same day by reviewing the complaint

12 and other materials and doing some legal research re Juvenile Court. Martin Depo. at 37:16-

13 25; Wade Timesheets at 1, Exhibit R to the Baker Decl. The following day, November 19,

14 Martin interviewed Wade at Contra Costa County’s Juvenile Hall and conducted further

15 research into the Juvenile Court issue. Martin Depo. at 37:16-38:12; Wade Timesheets at 1;

16 Wade Interrogatory Responses, Responses to Special Interrogatory No. 25, Exhibit P to the

17 Baker Decl. During Martin’s interview of Wade, they discussed whether Wade was

18 Mirandized prior to confessing. Martin Depo. at 38:13-39:4; Wade Interrogatory Responses,

19 Response to Special Interrogatory No. 13. At the time, Martin was unaware that Wade’s

20 interview by the Antioch police was recorded. Martin Depo. at 40:15-22, 49:14-50:8.

21

Martin appeared to represent Wade at the November 21 Counsel & Plea hearing.

22 November 21, 2011 Clerk’s Docket and Minutes, Exhibit S to the Baker Decl. The Court

23 appointed Martin to represent Wade. TAC, ¶41. Wade was not arraigned on that date and 24 Martin waived time with respect to the preliminary hearing.7 Martin Depo. at 39:24-40:6.

25

On November 28, Martin contacted Ringgenberg for the first time with respect to

26 7 Martin testified that he likely agreed to continue arraignment and waive time as part of an agreement
27 with counsel representing Wade’s four co-defendants. Martin Depo. at 39:24-40:6. Wade’s preliminary hearing took place over several days in June 2012. Wade Depo. at 27:12-17; see also
28 Wade Timesheets at 4-5, Exhibit R to the Baker Decl.

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1 working on Wade’s case. Plaintiffs’ Response to Request for Admission No. 11, Defendant’s

2 Request for Admission for Jerome Wade, Set Two (“Wade Responses to RFA’s”), Exhibit T to

3 the Baker Decl. The following day, Martin obtained authorization to use Ringgenberg as an

4 investigator in the Wade case. Martin Depo. at 42:9-23. Ringgenberg’s principal task was to

5 investigate whether Wade had been properly Mirandized. Id. at 43:1-4. On November 30,

6 Martin requested that Ringgenberg interview Wade’s principal, who witnessed the Antioch

7 police questioning Wade, prior to December 12, 2011, which was the date of the next hearing.

8 Id. at 44:7-20 (referencing Deposition Exhibit 64, a November 30, 2017 email from Martin to

9 Ringgenberg).

10

Ringgenberg interviewed the principal on December 6 and sent Martin a summary of

11 the interview. Martin Depo. at 45:6-14. In his December 7th email, Ringgenberg reported that

12 the principal “remembered it well” and provided Martin with many details from the principal

13 about the interview. December 7, 2011 Ringgenberg email, Deposition Exhibit 65, attached as

14 part of Exhibit F to the Baker Decl. However, she could not recall when the Miranda warning

15 was read, only that it was read. Id. Ringgenberg’s summary does not mention anything about

16 whether Wade wore a particular sweatshirt during the questioning. Id. Ringgenberg does not

17 recall being asked to look into what Wade was wearing at the time. Ringgenberg Depo. at

18 22:10-13.

19

On the morning of December 8, Martin emailed Ringgenberg requesting that he do a

20 follow-up interview of the principal to “pin her down on the Miranda issue in terms of, did it

21 happen immediately, or was it after D confessed?” Deposition Exhibit 46 at 2, which is

22 attached as part of Exhibit J to the Baker Decl. Martin’s email does not mention any need to

23 investigate what Wade was wearing at the time. Id. In response, Ringgenberg agreed to make

24 a further effort to interview the principal but he never did. Id. at 1; Wade Responses to RFA’s,

25 Response to RFA No. 12, Exhibit T to the Baker Decl.

26

At some point in this time period, Martin learned that the Antioch police had recorded

27 their interview of Wade. Martin Depo. at 50:12-20. At his deposition, Martin acknowledged

28 that it was a “reasonable inference” to conclude the second interview did not occur as a result

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1 of Martin becoming aware of the existence of the recording of the interview and this aborted

2 second interview of the principal might have resulted in obtaining more information from the

3 principal. Id. at 50:17-51:6, 74:4-10.

4

Martin raised the Miranda issue and other issues during Wade’s preliminary hearing.

5 Martin Depo. at 72:22-25. Martin based the motions on the recording of the interview. Id. at

6 73:22-74:3. Judge Cheryl Mills denied those motions. Id. at 73:1-20.

7

Subsequently, Martin raised the Miranda issue and other issues via 995 motions. Id. at

8 58:1-4. Martin withdrew those motions in response to threats by the District Attorney’s

9 Office. Id. at 58:5-8.

10

On December 6, 2012, Wade pled guilty to three counts. Wade Depo. at 24:21-25:17.

11 Wade has acknowledged that he committed those crimes. Id. at 29:12-14. As part of his guilty

12 plea, Wade waived his appellate rights. Martin Depo. at 57:15-17; see also id. at 15:7-9.

13 Following his sentencing, Wade received credit for time served. Wade Depo. at 71:24-72:6.

14

C. History of Public Defender Staffing at the Initial Appearance

15

Lipetzky was appointed Public Defender in January 2010. Lipetzky Decl., ¶2. At that

16 time, the Public Defender was under severe budget constraints and a hiring freeze. Id. As a

17 consequence of these issues, the Public Defender had to reject cases due to ethical issues

18 relating to excessive case loads and could not staff the initial appearances. Id.

19

At the time of Plaintiffs’ initial appearances, the Court would refer criminal defendants

20 who requested appointment of counsel to the Public Defender’s Office and set the matter over

21 to a subsequent Counsel & Plea date. Id. at ¶3. The Court determined the amount of time

22 between the initial appearance and the Counsel & Plea date. Id. Lipetzky understood that the

23 Court at that time had regular Counsel & Plea calendars, generally once or twice per week, and

24 that the arraignment would generally be scheduled for the next Counsel & Plea calendar. Id.;

25 Lipetzky Depo. at 44:5-45:13.

26

During this time period, the Public Defender generally commenced the process of

27 determining whether her office could represent the criminal defendant within a day or two of

28 receiving the “referrals” from the Court. Lipetzky Decl., ¶4. A paralegal would interview the

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1 defendant to determine eligibility and obtain other case information, including identification of

2 any urgent issues. Id.

3

After determination of financial eligibility, the Public Defender would evaluate whether

4 her office, including the ADO, could ethically represent the defendant. Id., ¶5. The evaluation

5 included 1) a check to prevent conflicts of interests due to representation of one or more co-

6 defendants and witnesses, and 2) an evaluation of her attorneys’ existing case loads to ensure

7 that they did not become excessive. Id. The conflicts check was performed sequentially by the

8 main office and then the ADO. The excessive case load evaluation was often performed by

9 the Public Defender herself and would be based on the then-current case load information, the

10 nature of the criminal defendant’s case as well as the cases also set for that Counsel & Plea

11 calendar. Id., ¶8.

12

Cases that the Public Defender could not accept due to one or more ethical bars would

13 be referred to the Conflict Panel. Id., ¶7. The referral would include a copy of the complaint.

14 Id. The referral would be made in sufficient time for the Conflict Panel to notify possible

15 counsel and obtain representation for the defendant in advance of the scheduled Counsel &

16 Plea date. Id. The Public Defender never received any complaints respecting an untimely

17 referral. Id.

18

From the commencement of her tenure and even before, Lipetzky was dissatisfied with

19 this process and worked to increase staffing levels so as to enable her office to staff the initial

20 appearance of both misdemeanor and felony defendants. Id., ¶10; see also September 2010

21 County Clips, attached as Ex. F to the Lipetzky Decl. At some point in time in 2012, prior to

22 Farrow submitting his government claims, Lipetzky implemented a pilot project in one of the

23 branch courts, developed the Arraignment Court Early Representation (“ACER”) program, and

24 began the process to obtain the necessary funding for that program. Id., ¶¶11-12. Lipetzky’s

25 decision to develop and implement the ACER program was unrelated to this litigation or any

26 other litigation. Id., ¶18.

27

On June 7, Lipetzky made a formal presentation respecting the ACER program to the

28 Community Corrections Partnership (“CCP”), the entity responsible for allocating AB 109

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1 funds in Contra Costa County. Id., ¶12; Office of the Public Defender, Proposed Realignment

2 Funding for FY 2012-2013 submitted to Community Corrections Partnership (June 7, 2012) at

3 1-3, Exhibit G to the Lipetzky Decl. The CCP thereafter discussed the ACER program in its

4 monthly meetings. Id., ¶13. On September 6, 2012, Lipetzky made a formal funding proposal

5 for this program to the CCP. Id. and Exhibit I thereto. In November 2012, the CCP adopted

6 an Operations Plan that included “[p]rovid[ing] for early representation of arrestees at the first

7 Court appearance.” Id. and Exhibit J thereto at 3 (November 9, 2012 Operations Plan,

8 CCPD0397-405m at CCPD0399). A month later, on December 7, 2012, the CCP adopted a

9 proposed budget that funded ACER positions for the Public Defender and District Attorney.

10 Id. and Exhibit K thereto at 2 (January 15, 2013 CCP Memorandum).

11

Subsequently, on January 15, 2013, the Contra Costa County Board of Supervisors

12 approved the CCP proposed budget and operational plan. Id., ¶14 and Exhibit L thereto. In

13 addition to approving the ACER funding, the Board specifically authorized a Position

14 Adjustment Request to create three new positions in the Public Defender’s Office for the

15 ACER program. Id., ¶14 and Exhibit M thereto. Since 2013, the Board has annually

16 authorized funding for the ACER program and there is no expectation that it will not continue

17 to do so. Id., ¶17.

18

Since January 9, 2013, the Public Defender has staffed the initial appearance of all in-

19 custody defendants.8 Id., ¶15. An attorney and a legal assistant from the Public Defender’s

20 office are present in the courtroom for this initial appearance. Id. After the legal assistant

21 ascertains whether a particular defendant wants representation by the Public Defender and is

22 financially eligible for representation, an attorney from that office interviews the defendant

23 immediately prior to the appearance to obtain arraignment, bail eligibility and other relevant

24 information. Id. After the in-court interview, the attorney from the Public Defender’s Office

25 represents the defendant at the arraignment. Id.

26 8 There have been instances where Lipetzky knew that the Public Defender’s Office would not be able
27 to accept any new cases due to excessive case loads. Lipetzky Decl., ¶16. In those instances, rather than have her staff cover the initial appearance, Lipetzky contacted the Conflict Panel in advance of the
28 initial appearance date and arranged for it to staff the initial appearance calendar. Id.

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1

Lipetzky has committed to continue staffing the initial appearances of in-custody

2 criminal defendants even if the Board of Supervisors were, contrary to her expectations, to cut

3 off funding for the ACER program. Id., ¶17.

4

D. Procedural Background

5

Plaintiffs initially filed this action on December 21, 2012. ECF No. 1. After this Court

6 ruled on two motions to dismiss, see ECF Nos. 47 and 69, the Court dismissed the action and

7 entered judgment for then-defendant Lipetzky. ECF No. 75.

8

Plaintiffs appealed to the Ninth Circuit. The Ninth Circuit affirmed this Court’s rulings

9 except with respect to the Sixth Amendment claim. Farrow v. Lipetzky, 637 F. App’x 986,

10 988-89 (9th Cir. 2016). As to the Sixth Amendment claim, the Ninth Circuit concurred with

11 this Court’s determination that the initial appearance was not a “critical stage” but held that

12 this Court applied the incorrect standard for determining whether appointment of counsel took

13 place in compliance with Rothgery v. Gillespie County, 554 U.S. 191 (2008). Id. at 988. In its

14 decision, the Ninth Circuit indicated that this Court should consider whether the delay posed a

15 grave potential for prejudice to Plaintiffs’ ability to defend their cases as well as any actual

16 prejudice. Id. (citing United States v. Wade, 388 U.S. 218 (1967) and Hamilton v. Alabama,

17 368 U.S. 52 (1961)).

18

Following the Ninth Circuit’s remand, Plaintiffs filed a Third Amended Complaint.

19 ECF No. 91. The County filed a further motion to dismiss, which the Court granted in part

20 and denied in part. See April 28, 2017 Order re Motion to Dismiss Third Amended Complaint

21 (“April 28, 2017 Order”), ECF No. 107. In the part of its Order addressing the Heck bar, the

22 Court held “[e]ach of those types of claims – ineffective assistance demonstrated to be

23 prejudicial under Strickland [and] structurally ineffective assistance under Cronic . . . would

24 likely be barred by Heck.” Id. at 18. The Court distinguished claims “where a Sixth

25 Amendment violation only affected the procurement of evidence.” Id. at 19. The Court then

26 held that Heck barred Plaintiffs’ Sixth Amendment claim to the extent that it was based on the

27 initial appearance being a “critical stage.” Id. at 23.

28

Following the Court’s Order, there are only two claims remaining in this litigation: 1) a

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1 section 1983 claim that the County9 violated Plaintiffs’ Sixth Amendment rights when they

2 were not represented at their initial appearance, as limited by the Court; and 2) the claim that

3 because the Public Defender’s Office did not staff Plaintiffs’ initial appearances, the County

4 violated Government Code section 22706. See ECF No. 107. The County now moves for

5 summary judgment on these two remaining claims.

6 IV. LEGAL ARGUMENT

7

A. Legal Standard

8

Summary judgment is properly granted when no genuine and disputed issues of material

9 fact remain, and when, viewing the evidence most favorably to the non-moving party, the

10 movant is clearly entitled to prevail as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp. v.

11 Catrett, 477 U.S. 317, 322-23 (1986). “[T]he plain language of Rule 56(c) mandates the entry

12 of summary judgment . . . against a party who fails to make a showing sufficient to establish

13 the existence of an element essential to that party’s case.” Celotex, 477 U.S at 322. The

14 movant’s uncontradicted factual allegations are ordinarily accepted. John v. City of El Monte,

15 515 F.3d 936, 941 (9th Cir. 2008). A “genuine” issue of material fact exists if there is

16 sufficient evidence for a reasonable jury to return a verdict for the non-moving party.

17 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is “material” if it is relevant

18 to an element of a claim or a defense, the existence of which may affect the outcome of the

19 suit. T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir.

20 1987). Uncorroborated allegations and “self-serving testimony” will not create a genuine issue

21 of material fact. Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002).

22 The non-moving party must set forth “significant probative evidence tending to support the

23 complaint.” T.W. Elec., 809 F.2d at 630-31.

24

Where the moving party does not bear the burden of proof on an issue at trial, the

25 moving party may discharge its burden of showing that no genuine issue of material fact

26 remains by demonstrating that “there is an absence of evidence to support the non-moving

27 9 Pursuant to stipulation and order, the County was substituted as defendant for Lipetzky, who was
28 sued solely in her official capacity. ECF No. 116.

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1 party’s case.” Celotex, 477 U.S. at 325. The moving party is not required to produce evidence

2 showing the absence of a material fact on such issues, nor must the moving party support its

3 motion with evidence negating the non-moving party’s claim. Id.; Bhan v. NME Hospitals,

4 Inc., 929 F.2d 1404, 1409 (9th Cir. 1991). The burden then shifts to the opposing party to

5 produce “specific evidence, through affidavits or admissible discovery material, to show that

6 the dispute exists.” Bhan, 929 F.2d at 1409. This requires more than the “mere existence of a

7 scintilla of evidence in support of the plaintiff’s position;” there must be “evidence on which

8 the jury could reasonably find for the plaintiff.” Anderson, 477 U.S. at 252. “The more

9 implausible the claim or defense asserted by the non-moving party, the more persuasive its

10 evidence must be to avoid summary judgment.” Id. A complete failure of proof concerning an

11 essential element of the non-moving party’s case necessarily renders all other facts immaterial.

12 Celotex, 477 U.S. at 323.

13

While all inferences must be resolved in favor of the non-moving party, inferences

14 cannot be drawn from broad generalities. Goodworth Holdings, Inc. v. Suh, 239 F. Supp. 2d

15 947, 955 (N.D. Cal. 2002). An inference may be drawn in favor of the nonmoving party, but

16 “only if it is ‘rational’ or ‘reasonable,’” i.e. if the inference is “reasonable in view of the other

17 undisputed background or contextual facts.” T.W. Elec., 809 F.2d at 631. Inferences “are not

18 drawn out of the air, and it is the opposing party’s obligation to produce a factual predicate

19 from which the inference may be drawn.” Grant v. Palomares, 2014 U.S. Dist. LEXIS 16748,

20 *25-26 (E.D. Cal. Feb. 5, 2014).

21

Finally, partial summary judgment may also be granted as to the individual claims and

22 defenses or a “part of each claim or defense.” Fed. R. Civ. P. 56(a). The Court may also

23 adjudicate individual facts not genuinely in dispute. Fed. R. Civ. P. 56(g) (“If the court does

24 not grant all the relief requested by the motion, it may enter an order stating any material fact .

25 . . that is not genuinely in dispute and treating the fact as established in the case.”). Id.

26

B. The Court Should Grant Summary Judgment on the Sixth Amendment

Claim in Favor of the County

27

Because the County is the defendant in this action, Plaintiffs must satisfy the four

28

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1 element Monell test, namely: 1) a violation of their Sixth Amendment right to counsel; 2) the

2 County had a policy or custom; 3) the County policy or custom amounted to deliberate

3 indifference to Plaintiffs’ Sixth Amendment rights; and 4) the County’s policy or custom was

4 the moving force behind the constitutional violation. Plumeau v. Sch. Dist. No. 40 Cnty. of

5 Yamhill, 130 F.3d 432, 438 (9th Cir. 1997); Order Granting Defendant’s Motion to Dismiss

6 the Second Amended Complaint, ECF No. 69, at 14. As discussed below, Plaintiffs cannot 7 prove the first, third and fourth elements.10

8

1. There Was No Violation of Either Plaintiff’s Sixth Amendment Right

to Counsel

9

Plaintiffs cannot establish that the absence of counsel at their initial appearances

10

resulted in a violation of their Sixth Amendment right to counsel where, as here, the

11

undisputed material facts establish that Plaintiffs were provided with the assistance of counsel

12

within a reasonable time after attachment (their initial appearances). Consequently, Plaintiffs

13

cannot meet either prong of the Ninth Circuit’s proposed test; not only did they not suffer any

14

actual prejudice from the absence of counsel, the absence of counsel did not pose a grave

15

potential for prejudice.

16

a. The Applicable Legal Standard

17

In this case, the Court must determine whether Plaintiffs received assistance of counsel

18

“within a reasonable time after attachment to allow for adequate representation at any critical

19

stage before trial, as well as at trial itself.” Rothgery, 554 U.S. at 212; see also Farrow v.

20

Lipetzky, 637 F. App’x 986, 988 (9th Cir. 2016) (quoting Rothgery). Under both Rothgery and

21

the Ninth Circuit’s decision, this “reasonableness” determination focuses on the consequences,

22

if any, of the delay on the criminal defendant’s ability to defend the charges against her/him.

23

Rothgery, 554 U.S. at 212-3 (“the accused at least is entitled to the presence of appointed

24

counsel during ‘any critical stage’ of the postattachment proceedings”). The Ninth Circuit

25

indicated that this Court should consider both whether the delay caused actual prejudice to that

26

27 10 With respect to the second element, the County concedes for the purposes of this motion that it had a policy or custom. However, it is not a written policy of withholding representation as alleged in the
28 TAC. See Lipetzky Decl., ¶19.

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1 ability as well as whether the delay posed a grave potential for prejudice to that ability.

2 Farrow, 637 F. App’x at 988 (citing Wade, 388 U.S. 218 and Hamilton, 368 U.S. 52). The

3 undisputed facts preclude Plaintiffs from establishing any actual prejudice or any grave

4 potential for prejudice.

5

In determining prejudice, the Court starts with the purpose of the Sixth Amendment.

6 As the Supreme Court has made clear in numerous decisions, the Sixth Amendment right to

7 counsel “exists, and is needed, in order to protect the fundamental right to a fair trial.” United

8 Strickland v. Washington, 466 U.S. 668, 684 (1984); United States v. Cronic, 466 U.S. 648,

9 656 (1984). Consequently, it does not protect against prejudices unrelated to, or unnecessary

10 for, that purpose. United States v. Gonzalez-Lopez, 548 U.S. 140, 147 (2006) (right to

11 effective representation serves purpose of ensuring a fair trial and is limited by that same

12 purpose); Rothgery, 554 U.S. at 216-17 (concurring opinion of Alito, J.; citing United States v.

13 Gouveia, 467 U.S. 180, 190 (1984) and United States v. Ash, 413 U.S. 300, 309 (1973)). For

14 example, in Gerstein v. Pugh, 420 U.S. 103 (1975), the Supreme Court declined to require

15 counsel at the probable cause determination where the criminal defendant’s liberty interests are

16 at issue. Id. at 122.

17

As the Court is aware, the County believes the Court should use an analytical

18 framework based on Strickland, 466 U.S. 668, and Cronic, 466 U.S. 648. In its April 28, 2017

19 Order, the Court held that the “Ninth Circuit’s determination that prejudice is not required in

20 this case, which is based on delayed appointment, is not consistent with the prejudice

21 requirements that the Supreme Court set forth in Strickland and Cronic.” ECF No. 107 at 24-

22 25. Since then, the Court has indicated it may be reconsidering this issue. See July 14, 2017

23 Transcript, ECF No. 117, at 23:16-24:3 (statement of Court).

24

The County respectfully urges the Court to revisit this issue. As the Court noted

25 elsewhere in its April 28, 2017 Order, the Ninth Circuit held that it was error for this Court to

26 require Plaintiffs to allege “actual prejudice.” ECF No. 107 at 25:4-5 (quoting Farrow, 637 F.

27 App’x at 988). “Actual prejudice” is required under Strickland but not under the presumed

28 prejudice discussed in Cronic and its progeny. Cronic, 466 U.S. at 659; see also Gallegos v.

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1 Ryan, 820 F.3d 1013, 1034 (9th Cir. 2016) (quoting Florida v. Nixon, 543 U.S. 175, 190, 125

2 S. Ct. 551 (2004), quoting Cronic, 466 U.S. at 658); Workman v. Blades, 2016 U.S. App.

3 LEXIS 5428, *2 (9th Cir. March 23, 2016) (“In Cronic, the Supreme Court fashioned an

4 exception to the prejudice requirement in Strickland”). Citing Hamilton, the Cronic Court

5 held that the “constitutional error [has uniformly been found] without any showing of

6 prejudice when counsel was either totally absent, or prevented from assisting the accused

7 during a critical stage of the proceeding.” Id. at 659 n.25. Further to the point, Justice Alito

8 cited Wade in his Rothgery concurrence as an example of a Sixth Amendment critical stage.

9 554 U.S. at 217. The Ninth Circuit recently held likewise. Sanders v. Cullen, 2017 U.S. App.

10 LEXIS 20080, *65 (9th Cir. October 13, 2017). Accordingly, the Ninth Circuit’s decision is

11 consistent with Cronic and Strickland.

12

The County’s position is supported by the testimony of Plaintiffs’ expert, Professor

13 Robert Boruchowitz. During his deposition, Professor Boruchowitz testified as follows:

14

Q: ... And I’m wondering where in [the Cronic-Strickland] continuum does this -

- the present case we’re looking at, the case whether there was denial of the right

15

to counsel in Contra Costa County, [fall?]

A: Well, I think the question is, was it reasonable to wait five to thirteen days to

16

appoint counsel. I think that’s the question. And certainly during the period of

no counsel, it’s a Cronic problem.

17

Q: And after counsel is appointed, it’s a Strickland problem?

A: Well, it depends on whether counsel is doing anything. Simply having

18

counsel doesn’t get past Cronic.

Q: Okay. Did you - - a part of your responsibility in this case, were you asked to

19

express an opinion as to whether Mr. Martin performed adequately under the

Strickland test?

20

A: No.

Q: . . . After Mr. Martin was appointed, did you do any analysis to see

21

whether there was any constructive denial of counsel?

A: No.

22

Q: So you’re solely looking at sort of under Cronic, whether there was a

denial of counsel in that period before Mr. Martin became involved[?]

23

A. Yes.

24 Deposition of R. Boruchowitz at 14:22-15:23, Exhibit U to the Baker Decl.; see also The Right

25 to Counsel in Utah: An Assessment of Trial-Level Indigent Defense Services (2015) (“Utah 26 Report”)11 at 8-14, Exhibit V to the Baker Decl. (using the Cronic/Strickland continuum to

27 11 Professor Boruchowitz had a substantial role in the preparation of the Utah Report. Boruchowitz
28 Depo. at 12:23-13:17 (testimony regarding Professor Boruchowitz’s role in preparing the Utah Report).

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1 evaluate Utah’s compliance with the Sixth Amendment’s right to counsel).

2

Because Plaintiffs must rely on the Cronic test to establish a grave potential for

3 prejudice, for the reasons discussed in this Court’s April 28, 2107 Order, Heck bars Plaintiffs 4 from making this contention.12 ECF No. 107 at 17-18. Consequently, Plaintiffs are limited to

5 an actual prejudice to their individual cases, which they cannot establish.

6

Regardless of the Court’s resolution of this foundational issue, the undisputed evidence

7 establishes that the absence of counsel at Plaintiffs’ initial appearances did not cause actual

8 prejudice or pose any grave potential for prejudice. Notably, to establish a grave potential for

9 prejudice, Plaintiffs must present facts showing that “[a]vailable defenses may be irretrievably

10 lost, if not then and there asserted,” Hamilton, 368 U.S. at 54, or a pretrial confrontation

11 “which might determine the accused’s fate,” Wade, 388 U.S. at 235. Before proceeding to this

12 analysis, the County outlines California’s general criminal process because it is the necessary

13 background on which to commence the prejudice analysis.

14

b. California’s Criminal Process

15

Under California law, specifically Penal Code section 859, an individual charged by a

16 written complaint must be brought before a magistrate “without unnecessary delay.” Penal

17 Code § 859. At this initial appearance, the magistrate informs the individual of the charges

18 and of his/her right to counsel. Id. “If the defendant desires and is unable to employ counsel,

19 the court shall assign counsel to defend him or her.” Id.; see also Penal Code § 987.

20

The next stage in the process is arraignment, which includes the Court “asking the

21 defendant whether the defendant pleads guilty or not guilty to the accusatory pleading.” Penal

22 Code § 988. Arraignment, by itself or together with the entry of the plea, triggers statutory

23 deadlines respecting the preliminary hearing and trial. Under Penal Code section 859b, the

24 defendant is entitled to a preliminary hearing “within 10 court days of the date the defendant is

25 arraigned or plead, whichever occurs later.” Penal Code § 859b. Other California statutes

26 require that the defendant be brought to trial within so many days depending on whether he or

27 12 In that Order, the Court indicated that Heck did not bar claims where “a Sixth Amendment violation only affected the procurement of evidence.” ECF No. 107 at 19. In making this ruling, the Court relied
28 on Wade where counsel was absent at a post-indictment lineup. Id.

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1 she is charged with felonies or misdemeanors. Penal Code §§ 1049.5, 1050, 1382.

2

c. Plaintiffs’ Claims and The Facts of Their Individual

Proceedings

3

The TAC’s prejudice allegations focus on the effect (actual or potential) that delay

4 allegedly had on their ability to obtain evidence from witnesses. See TAC, ¶¶31, 42-43. In
5 particular, Farrow alleges that the delay impeded his ability to locate and interview some
6 witnesses. Id., ¶31. Wade alleges that the delay impeded his ability to obtain corroborating
7 testimony from a witness (his principal) due to an alleged memory loss. Id., ¶42-43. Plaintiffs
8 do not allege that the delay impaired the ability of their appointed counsel to adequately

9 represent them at their arraignments, their preliminary hearings or during plea bargaining.
10 Likewise, the current allegations do not assert that the delay precluded their counsel from
11 invoking legal rights otherwise accorded under federal or California law.13 As discussed
12 below, the undisputed facts demonstrate that the delay caused no prejudice with respect to
13 these witnesses and posed no grave potential for such prejudice.
14 i. Farrow
15 Farrow’s case was a garden-variety domestic violence case and presented no unusual
16 issues warranting immediate appointment of counsel. Farrow contends that the delay in
17 appointment of counsel impaired his ability to locate witnesses who might have been able to

18 establish that the complaining witness “lied to the police and lied under oath at the preliminary
19 hearing.” TAC, ¶31. The material undisputed facts demonstrate the contrary.
20 First, it is undisputed that Farrow was interviewed by the Public Defender’s Office on
21 September 6, 2011, the following court day after his initial appearance, and disclosed no
22 urgent issues -- only a desire to obtain a copy of the police report. Applicant Interview Packet

23 at 3, Exhibit B to the Lipetzky Decl.; see also Plaintiff’s Response to Request for Admissions
24 to Plaintiff John Farrow, Set Two (“Farrow Responses to Second Set of RFA’s”), Response to
25 Request for Admission No. 7, Exhibit C to the Baker Decl. This interview provided an
26 opportunity for Farrow to disclose, and the Public Defender to learn of, any urgent issues.
27

13 To be sure, Plaintiffs have in the past made such allegations. However, this Court has held that the 28 delay did not preclude the assertion of any such rights. ECF No. 47 at 17, 21-22; ECF No. 69 at 25.

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1 Lipetzky Decl., ¶4. In Farrow’s case, there were none.

2

Second, although Martin was notified about representing Farrow at 1:57 p.m. on

3 September 14, and had a copy of the criminal complaint, he “didn’t do anything” on Farrow’s

4 case until he met with Farrow shortly before the second hearing. Martin Depo. at 11:25-12:7;

5 Farrow Responses to Second Set of RFA’s, Response to Request No. 9; see also Farrow

6 Timesheets, Exhibit H to the Baker Decl. (no entry for September 14, 2011). Martin’s actions 7 confirm that he saw no need for urgent action at the time.14

8

Third, the importance of the witnesses’ testimony, if any, did not become evident until

9 the preliminary hearing on September 27, after Martin’s appointment, and even then, Martin

10 did not start the investigation until November 7, and gave up that investigation after only one

11 attempt to locate those witnesses as a result of Farrow entering a guilty plea on November 16.

12 Martin Depo. at 19:24-20:11; Farrow Responses to Second Set of RFA’s, Response to Request

13 Nos. 11 and 21.

14

Simply put, under these facts, the delay neither caused Farrow any actual prejudice nor

15 any grave potential for prejudice.

16

ii. Wade

17

The facts of Wade’s criminal proceedings similarly demonstrate that there was no

18 violation of his Sixth Amendment right to counsel. The TAC alleges the delay in appointment

19 potentially led to a possible diminution of his principal’s ability to recall when Wade was

20 Mirandized by the Antioch police in her office and what Wade was wearing at the time. TAC,

21 ¶¶42-43. However, the undisputed evidence establishes the delay had no actual impact on, and

22 posed no grave potential to impact, Wade’s criminal proceedings.

23

Wade was arrested on November 8 and had his initial appearance on November 14. At

24 that initial appearance, the Court scheduled his Counsel & Plea date for November 21, a mere

25 seven days later. Because Wade had four co-defendants, some of which also sought

26 14 Martin’s conduct speaks not just to the complexity of Farrow’s case but also to the fact that an attorney can conduct an arraignment without any preparation other than a brief in-court meeting with
27 the criminal defendant. To be sure, that is exactly how the Public Defender handles arraignments today. Lipetzky Decl., ¶15; see also Boruchowitz Depo. at 28:7-16 (“If you get appointed right there in
28 the courtoom, you try to take as much time as the judge will give you.”).

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1 representation from the Public Defender’s Office, that office promptly engaged in a conflicts

2 check and, by November 18, determined that neither the main office nor the ADO could

3 represent Wade and referred the matter to the Conflict Panel. Lipetzky Decl., ¶9. The

4 Conflict Panel contacted Martin at 10:22 a.m. on November 18. Martin Depo. at 31:23-32:19

5 and Deposition Exhibit 59. Martin agreed to represent Wade and started working on Wade’s

6 case that day. Martin Depo. at 37:16-25; Wade Timesheets, Exhibit R to the Baker Decl. at 1.

7 The following day, November 19, Martin interviewed Wade in Juvenile Hall and learned about

8 the potential Miranda issue. Martin Depo. at 38:13-39:4; see also Wade Timesheets at 1; 9 Wade Interrogatory Responses, Responses to Special Interrogatory Nos. 13 and 25.15 Thus, by

10 the time Wade made his second court appearance on November 21, his attorney (Martin) had

11 met with him and identified the potential Miranda issue.

12

However, although Martin knew about the Miranda issue on November 19, he did not

13 contact Ringgenberg until November 28 and only gave Ringgenberg a hard deadline of

14 December 12, when there was another court hearing. Wade Responses to RFA’s, Response to

15 Request No. 11; Martin Depo. at 44:7-20 (referencing Martin Exhibit 64, a November 30,

16 2017 email from Martin to Ringgenberg). If Martin were concerned about a potential

17 diminution of the principal’s memory due to the delay in interviewing her, he would have

18 acted more promptly and would have given Ringgenberg an earlier deadline to interview the

19 principal, i.e. immediately. He did not and, thus, it was not until December 6, roughly one

20 month after the date of the Antioch police’s questioning of Wade, that Ringgenberg

21 interviewed the principal. Martin Depo. at 45:6-14. Notably, even with that delay, the

22 principal remembered the incident “well” but could not recall precisely when Wade was

23 Mirandized. Deposition Exhibit 65 at 1, Exhibit F to the Baker Decl. It is rank speculation to

24 assert that the principal’s inability to recall this one detail resulted from the short delay

25
15 There is an internal inconsistency in Wade’s interrogatory responses. The response to Interrogatory 26 No. 13 identifies the interview as taking place on November 19. The response to Interrogatory No. 25
states the interview took place on November 20. The County uses the November 19 date, which is also 27 consistent with Martin’s time sheet entries and because Wade has admitted the meeting took place on
that date in his Response to RFA No. 6. See Wade Time Sheets at 1; Wade Responses to RFA’s, 28 Response to Request No. 6, Exhibit T to the Baker Decl.

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1 between November 14 and November 19 as opposed to the much longer delay imposed by

2 Martin between November 19 and December 6.

3

In addition to this point, Wade cannot claim that the principal’s testimony was material

4 on the Miranda issue, which turned on whether Wade was Mirandized before his confession,

5 because there was an audio-recording of the Antioch police interview of Wade. Once Martin

6 learned about the audio-recording, he discontinued Ringgenberg’s effort to interview the

7 principal a second time. Martin Depo. at 50:12-51:6, 74:4-10. In fact, Martin relied on the

8 audio-recording to raise the Miranda issue via motion, which the state court denied. Id. at

9 73:12-74:3.

10

Finally, Wade cannot base his claim on the alleged sweatshirt issue. See TAC, ¶43. In

11 addition to the points made above, it is unclear when Martin became aware of this issue.

12 Further, it appears that Ringgenberg never questioned the principal about this issue. He does

13 not recall being asked to investigate this issue and his December 7 email summarizing the

14 principal’s interview makes no mention of what Wade was wearing at the time. Ringgenberg

15 Depo. at 22:10-13; Deposition Exhibit 46 at 2-4, attached as part of Exhibit J to the Baker

16 Decl. Further to the point, Martin’s December 8 emails relating to the follow-up interview

17 make no mention of, and do not complain about, the absence of any information respecting

18 what Wade was wearing at the time of his questioning. See Deposition Exhibit 46 at 2.

19

These undisputed facts establish that the short, four-day delay between Wade’s initial

20 appearance on November 14 and Martin’s agreement to represent Wade on November 18, had

21 no impact on Martin’s ability to represent Wade adequately.

22

2. There Was No Deliberate Indifference to Plaintiffs’ Sixth

Amendment Rights

23

In this case, there is no written policy that mandated withholding of representation at

24

the initial appearances. Lipetzky Decl., ¶19. Rather it was the inability of the Public Defender

25

(due to budgetary issues and a hiring freeze) to provide attorneys at those initial appearances.

26

Id., ¶2. For the reasons discussed above, the Sixth Amendment does not require the Public

27

Defender to staff those initial appearances. Further to the point, the policies and procedures

28

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1 adopted by the Public Defender are constitutional on their face. Accordingly, Plaintiffs allege

2 the County policy at issue “amounted to a failure to protect constitutional rights as described in

3 Oviatt by and through Waugh v. Pearce, 954 F.2d 1470 (9th Cir. 1992).” TAC, ¶9 at 4; Order

4 Granting Defendant’s Motion to Dismiss the Second Amended Complaint, ECF No. 69, at 14.

5 This form of claim requires that Plaintiffs establish that the County was deliberately indifferent

6 to the risk of harm to Plaintiffs’ Sixth Amendment rights. They cannot do so.

7

In Oviatt v. Pearce, 954 F.2d 1470 (9th Cir. 1992), a jail detainee was not arraigned

8 until 114 days had elapsed. Id. at 1473. The jail lacked procedures for keeping track of

9 whether detainees received an arraignment or attended other scheduled court appearances. Id.

10 The Ninth Circuit noted that the county involved in that case could only be held liable “for

11 failing to act to preserve a constitutional right,” where the plaintiff demonstrated “deliberate

12 indifference to his constitutional rights.” Id. at 1477. The deliberate indifference standard is

13 met “when the need for more or different action ‘is so obvious, and the inadequacy [of the

14 current procedure] so likely to result in the violation of constitutional rights, that the

15 policymakers . . . can reasonably be said to have been deliberately indifferent to the need.’” Id.

16 at 1477-78 (quoting City of Canton v. Harris, 489 U.S. 378, 390 (1989)). The Ninth Circuit

17 concluded that this standard was met where the Sheriff “knew of at least 19 incidents between

18 1981 and 1989 in which individuals sat in jail for period of undetermined length after they

19 missed arraignment” and failed to take corrective action. Id. at 1478.

20

Notably, because this case is factually distinct from Oviatt, Plaintiffs cannot show that

21 the County was on actual or constructive notice that its omission would likely result in a

22 constitutional violation. Gibson v. County of Washoe, 290 F.3d 1175, 1186 (9th Cir. 2002).

23 As a starting point, California criminal procedure is such that it is extremely unlikely that the

24 absence of counsel at the initial appearance will have any impact, or could have any impact, on

25 the subsequent proceedings. See infra at 21. Additionally, unlike in Oviatt, Plaintiffs cannot

26 point to any known prior instances where a Sixth Amendment violation occurred as a result of

27 the Public Defender’s policies and practices. Indeed, in Farrow’s own criminal proceeding,

28 the state court expressly held that there was no such violation, referring to her earlier decision,

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1 which was affirmed by a state court of appeal. September 15, 2011 Transcript at 3:14-4:8,

2 Exhibit I to the Baker Decl. Further, these polices and practices were not the subject of prior

3 litigation against the Public Defender and she did not receive any complaints from the Conflict

4 Panel or any assigned attorneys respecting untimely referrals. Lipetzky Decl., ¶¶7, 18.

5

The County’s continuation of the then-current policies and procedures until it could

6 provide additional funding under AB 109 did not manifest any “deliberate indifference” to the

7 risk of harm to Plaintiffs’ Sixth Amendment rights.

8

3. The County did not Cause any Violation of Plaintiffs’ Sixth

Amendment Rights

9

Additionally, it cannot be said that the County caused any Sixth Amendment violations.

10

First, the length of the delay was determined solely by the state court. Lipetzky Decl., ¶3.

11

Second, it is not foreseable that the Public Defender’s then-existing practices and procedures

12

could result in any loss of evidence. Those practices included an interview of referred

13

individuals designed to identify urgent issues and prompt referrals to the Conflict Panel when

14

the Public Defender was unable to represent the referred individuals. Additionally, generally

15

speaking, a week or even two weeks is not likely to result in destruction of critical evidence.

16

C. Farrow is Collaterally Estopped from Asserting A Violation of the Sixth

17

Amendment

18

As recounted above, Farrow challenged the “bifurcated arraignment” as violative of his

19 Sixth Amendment rights in state court. The state court denied this challenge, holding that

20 Farrow’s rights were not violated. Because Farrow waived his appellate rights, Judge Maier’s

21 holding is collateral estoppel and bars Farrow’s Sixth Amendment claim here.

22

At the September 15, 2011 hearing in his criminal case, Martin on behalf of Farrow

23 formally objected to the “bifurcated arraignment” process and having appeared at his

24 September 2, 2011 hearing without counsel.

25

I would like to object to the fact that Mr. Farrow has been in custody now 13

days without a lawyer. It’s my understanding that he went through the bifurcated

26

arraignment process and at his initial appearance he did not have a lawyer.

27

I would direct the Court to People v. Cox, 1987, 193 Cal.App.3d 1434, where

the Court states, “Although arraignment is a critical stage of the proceeding

28

entitling the defendant to an attorney, the absence of an attorney is not such a

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1

grievous error that it compels a reversal without a showing of prejudice.”

2

So it clearly is an error, and the issue of prejudice in this case is that he has been

denied his speedy trial rights. And in that regard, if there’s any question in the

3

Court’s mind, I would ask for an evidentiary hearing.

4 September 15, 2011 Hearing Transcript at 3:14-4:1, Exhibit I to the Baker Decl.; see also

5 Farrow Interrogatory Responses, Response to Special Interrogatory No. 18 (Martin moved to

6 have Farrow’s case dismissed based upon denial of counsel and his speedy trial rights). The

7 Contra Costa Superior Court (Judge Maier) overruled Martin’s objection on the grounds that

8 “based on my prior ruling, my prior research in this matter, I do not find that your client’s

9 rights have been violated in any fashion. . . .” September 15, 2011 Transcript at 4:5-7.

10

All the elements of collateral estoppel are met here: 1) Judge Maier’s holding is a final

11 ruling on this issue; 2) Farrow was a party to the prior criminal case; and 3) the issues are the

12 same. See Green v. Ancora-Citronelle Corp., 577 F.2d 1380, 1383 (9th Cir. 1978) (setting

13 forth three part test). On the last point, Farrow relied on People v. Cox, a Sixth Amendment

14 case, in both his criminal case and here.

15

Farrow cannot escape collateral estoppel by contending that the initial ruling occurred

16 in criminal court or that the County was not a party to that action. Hinkle Northwest, Inc. v.

17 Securities & Exchange Comm’n, 641 F.2d 1304, 1308-09 (9th Cir. 1981). As the Ninth Circuit

18 stated succinctly in Hinkle Northwest, “we are not troubled that petitioners wish to import the

19 finding of a criminal case into civil litigation [citation omitted] . . . or that the petitioners, who

20 seek to use estoppel, were not parties to the previous litigation.” Id.; see also Teitelbaum Furs,

21 Inc. v. Dominion Ins. Co., Ltd., 58 Cal. 2d 601, 603-04 (1962) (California decision applying

22 collateral estoppel to finding in criminal proceeding in subsequent civil case).

23

D. The Court Should Dismiss Plaintiffs’ State Law Claim Based on an Alleged

Violation of Government Code Section 27706 due to Lack of Subject Matter

24

Jurisdiction or Grant Summary Judgment as to that Claim

25

Because the Court should grant summary judgment as to Plaintiffs’ Section 1983 claim

26 for the reasons stated above, the Court should dismiss their state law claim based on

27 Government Code section 27706 due to lack of subject matter jurisdiction. Carnegie-Mellon

28 Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988) (“in the usual case in which all federal-law

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1 claims are eliminated before trial, the balance of factors to be considered under the pendent

2 jurisdiction doctrine – judicial economy, convenience, fairness, and comity – will point toward

3 declining to exercise jurisdiction over the remaining state-law claims.”); Sanford v.

4 MemberWorks, Inc., 625 F.3d 550, 561 (9th Cir. 2010) (same). Dismissal is particularly apt

5 where, as here, there is a dearth of state court decisions addressing the specific question at

6 issue here, whether the Public Defender must provide representation between the first and

7 second appearances under Government Code section 27706. See Moor v. County of Alameda,

8 411 U.S. 693, 714 (1973) (unsettled nature of state law is legitimate basis to decline exercise

9 of pendent jurisdiction over state law claim). If the Court elects to retain jurisdiction over this

10 state law claim, it should grant summary judgment on it for three reasons: 1) the Public

11 Defender never had a duty to represent either Farrow or Wade under section 27706 because

12 neither Plaintiff made a direct request for representation to that office and the court never

13 appointed that office to represent either defendant; 2) the Public Defender could not represent

14 either plaintiff in light of the ethical conflicts in doing so; and 3) the Public Defender took the

15 only actions she could, namely refer Plaintiffs’ cases to the Conflict Panel.

16

Government Code section 27706 provides in relevant part: “Upon request of the

17 defendant or upon order of the court, [the Public Defender] shall defend, without expense to

18 the defendant . . . .” Government Code §27706(a). The California Supreme Court construes

19 the “upon request” language to mean that the defendant “appl[ied] directly to the public

20 defender.” Ingram v. Justice Court for Lake Valley Judicial Dist., 69 Cal. 2d 832, 837 (1968);

21 In re Brindle, 91 Cal. App. 3d 660, 678 (1979) (following Ingram); see also Joshua P. v.

22 Superior Court, 226 Cal. App. 4th 957, 962, 964 (2014) (prior to arraignment, minor made

23 oral request for representation to deputy public defender).

24

In this case, there was no direct request for representation made by either Farrow or

25 Wade to the Public Defender’s Office, nor did the Court appoint the Public Defender to

26 represent either defendant. Lipetzky Decl., ¶¶8-9. Indeed, the TAC specifically alleges that

27 the Superior Court merely “referred the matter to the Public Defender” and that Martin was

28 subsequently appointed to represent them at the following hearing. TAC, ¶¶27, 29, 36, 41. In

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1 the absence of a direct request for representation and appointment by the state court, the Public

2 Defender never had a duty under section 27706 to represent Farrow or Wade at any point.

3

Additionally, the Public Defender could not represent either Plaintiff due to a conflict

4 of interest. The state court cannot appoint the Public Defender to represent a defendant until

5 that office conducts a conflicts check and ensures that representation was ethically permitted.

6 In Re Edward S., 173 Cal. App. 4th 387, 414 (2009) (“Under the Penal Code, a public

7 defendant may not be assigned to represent an indigent defendant in a case in which he or she

8 has a conflict of interest” (citing Cal. Penal Code §987.2(a)(3), (d), (e))). Likewise, if

9 appointed, the Public Defender can decline appointment where s/he cannot ethically represent

10 an otherwise eligible defendant. Uhl v. Municipal Court, 37 Cal. App. 3d 526, 535 (1974);

11 Joshua P., supra, 226 Cal. App. 4th at 513-14 (under California law, specifically section

12 27706 and Penal Code section 987.2, a court must first utilize the services of the public

13 defender if available to try the matter; a conflict of interest would make the Public Defender

14 unavailable); see also In Re Brindle, supra, 91 Cal. App. 3d at 678-79 (“it is more appropriate

15 for the statutory, professional and ethical responsibilities of the public defender” to be

16 determined by the public defender than by law enforcement). Indeed, before accepting

17 representation, the Public Defender, like every other attorney, is entitled to determine whether

18 there is an ethical bar to representation prior to commencing to represent a client. See

19 California State Bar Rule of Professional Code 3-310(a).

20

With respect to Farrow, Lipetzky properly concluded that her office could not ethically

21 represent Farrow in light of the then-existing case loads of its attorneys. Lipetzky Decl., ¶8.

22 This is a legitimate basis to refuse representation. In re Edward S., supra, 173 Cal. App. 4th at

23 414; see also id. at 414 n.11.

24

With respect to Wade, both the main office and the ADO determined that representation

25 of Wade was barred because each office was representing a co-defendant. Lipetzky Decl., ¶9.

26 This is also a legitimate basis to refuse representation. Uhl, supra; see also Joshua P., supra,

27 226 Cal. App. 4th at 513-14.

28

Significantly, the Public Defender did not rest on its determination, but notified the

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1 Conflict Panel and obtained private counsel for both plaintiffs in time for adequate

2 representation at the second hearing and thereafter. This was the only act the Public Defender

3 could ethically perform between the first and second appearances. Thus, to the extent that

4 there was a “stage” between Plaintiffs’ first and second appearances, Plaintiffs can point to

5 nothing that the Public Defender was required to do under section 27706 that wasn’t done.

6

While there does not seem to be a case directly on point, Roswall v. Municipal Court,

7 89 Cal. App. 3d 467 (1979), a case that analyzed Government Code sections 27706 and 27707,

8 implicitly supports the County’s position. In Roswall, it appears that the criminal defendants

9 did not have counsel at their initial appearance, but did have counsel present at the second

10 appearance. See id. at 470. Notably, when referring to when the state court should evaluate

11 the financial eligibility of the criminal defendant if it so desired, the Roswall Court noted that

12 any such evaluation should occur “in almost all instances before or during the first court

13 appearance of counsel.” Id. at 475 (emphasis added). The Roswall Court would not have

14 needed to distinguish between the first appearance of counsel and the first appearance of the

15 defendant if section 27706 mandated counsel to be present at the defendant’s first appearance.

16

Additionally, the relevant sentence of section 27706 speaks to the Public Defender’s

17 duty to “defend.” California case law interprets that term, in this context, to mean “the right to

18 have counsel ‘act on [his] behalf’, i.e., to appear for and represent him.” People v. Mattson, 51

19 Cal. 2d 777, 792 (1959) (agreeing with the People’s definition of this term as used in Penal

20 Code §859). The Public Defender had no opportunity to “defend” Farrow or Wade between

21 their initial appearance and their second appearance.

22

For these reasons, there was no violation of Government Code section 27706.

23

E. Plaintiffs’ Claims For Injunctive and Declaratory Relief Are Moot and

Should be Dismissed

24

In this case, Plaintiffs request that the Court issue an injunction mandating that the

25

Public Defender staff the arraignments of all in-custody criminal defendants in Contra Costa

26

County Superior Court. TAC, ¶13. Presumably, Plaintiffs intended to require staffing the

27

initial appearances because it is undisputed, and the Court has already ruled, that Plaintiffs had

28

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1 counsel at their arraignments as required by California law. May 8, 2013 Order at 15, ECF

2 No. 47 (holding that Plaintiffs had counsel at the “further arraignment,” which is when they

3 were asked to enter a plea). Plaintiffs also seek declaratory relief as to the legality of the

4 Public Defender’s acts respecting their initial appearances. Setting aside that the requests are

5 overbroad and not constitutionally mandated, Plaintiffs’ claims for injunctive and declaratory

6 relief are moot as it is undisputed that since January 9, 2013, the County has funded, and the

7 Public Defender has staffed, the initial appearance of in-custody defendants. And no

8 exceptions to the mootness doctrine apply.

9

There must be an active case or controversy at all times during the course of a civil

10 action. Native Village of Noatak v. Blatchford, 38 F.3d 1505, 1509 (9th Cir. 1994) (quoting

11 United States Parole Comm’n v. Geraghty, 445 U.S. 388, 397 (1980)). Intervening events can

12 moot a case where they preclude the Court from issuing an injunction to remedy the alleged ill.

13 Church of Scientology of California v. United States, 506 U.S. 9, 12 (1992). Here, it is

14 undisputed that the Public Defender has staffed all initial appearances of in-custody defendants

15 since January 9, 2013, and will continue to do so. Lipetzky Decl., ¶¶15, 17; see also Farrow

16 Supplemental Response to Special Interrogatory No. 11, Plaintiffs’ Supplemental Response to

17 Defendant’s Special Interrogatories to Plaintiff John Farrow, Set One, at 5-6, Exhibit W to the

18 Baker Decl. This change in County practice and Lipetzky’s stated intentions to continue this

19 practice moot Plaintiffs’ claims for injunctive and declaratory relief.

20

Plaintiffs will undoubtedly argue that this case falls within two exceptions to the

21 mootness doctrine, specifically the “capable of repetition yet evading review” exception and

22 the “voluntary cessation” exception. However, this case fits neither exception.

23

1. “Capable of Repetition Yet Evading Review”

24

In the “capable of repetition yet evading review” exception, Plaintiffs have the burden

25 of proof to establish that they or absent class members are likely to be subject to the challenged

26 policy in the future. United States v. Sanchez-Gomez, 859 F.3d 649, 657 (9th Cir. 2017)(en

27 banc). They cannot do so here.

28

In Noatak, the Ninth Circuit found that this exception did not apply where the statute

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1 giving rise to the allegedly discriminatory state actions had been repealed.

2

[T]here is no reasonable expectation that the alleged injury will

recur. . . . Even if the Commissioner has discretion under the new

3

statute to create new regulations to which Noatak might also

object, that in itself is not sufficient to create a reasonable

4

expectation of recurrence. Noatak fears only the possibility that

the state’s allegedly discriminatory policy will manifest itself under

5

the new statute. Federal courts are not authorized to address such

theoretical possibilities.

6

38 F.3d at 1510.

7

The Eastern District held similarly in Tuleberg Auto Body Garage & Tow v. City of

8

Stockton, 2008 U.S. Dist. LEXIS 23683 (E.D. Cal. March 28, 2008). That case involved a

9

franchise towing program. The Court concluded there was no reasonable expectation that

10

plaintiffs would be subject to a franchise program in the future.

11

Defendant abandoned this program two years agon and has continued rotational

12

towing since. Moreover, the recent changes in city personnel make it uncertain

what course of action defendant will pursue in the future. The mere possibility

13

that defendant might sometime in the future authorize a franchise program is not

sufficient.

14

Id. at *12 (italics in original; citing Noatak, supra).

15

These cases preclude Plaintiffs’ ability to meet their burden on this exception. First, the

16

County has enacted annual budgets authorizing the ACER program and also enacted

17

permanent changes to position classifications with the Public Defender’s Office. Lipetzky

18

Decl., ¶¶14, 17 and Exhibit M thereto. These legislative actions are akin to the legislative

19

action in Noatak. Further, Lipetzky has clearly stated under oath her intention to continue to

20

staff initial appearances even if, contrary to her expectations, the County elected not to fund

21

those positions. Id., ¶17. As the Seventh Circuit has aptly noted, comity requires the federal

22

courts “to give some credence to the solemn undertakings of local officials.” Chi. United

23

Indus. v. City of Chicago, 445 F.3d 940, 947 (7th Cir. 2006) (citing inter alia Bulding &

24

Construction Dept. v. Rockwell Int’l Corp., 7 F.3d 1487, 1491-92 (10th Cir. 1993); Chamber

25

of Commerce of United States of America v. U.S. Dept. Of Energy, 627 F.2d 289, 291-92 (D.C.

26

Cir. 1980); see also 13A Wright et al., Federal Practice and Procedure §3533.7, at 354 (2d

27

ed. 1984) (“Courts are more apt to trust public officials than private defendants to desist from

28

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1 future violations.” Citing Preiser v. Newkirk, 422 U.S. 395, 402-03 (1975)); Jimmy v.

2 Buscemi, 2013 U.S. Dist. LEXIS 31541, *27 (D.S.C. March 7, 2013) (“courts often give

3 considerable credence to a government’s indication that it will not repeat the challenged

4 conduct.”). Indeed, some courts have concluded that government actors, such as Lipetzky,

5 “receive the benefit of a rebuttable presumption that the objectionable behavior will not 6 recur.”16 Sheely v. MRI Radiology Network, P.A., 505 F.3d 1173, 1183 (11th Cir. 2007); Chi.

7 United Indus., 445 F.3d at 947 (quoting Troiano v. Supervisor of Elections in Palm Beach

8 County, 382 F.3d 1276, 1283 (11th Circ. 2004); emphasis in original).

9

More importantly, to paraphrase what the Supreme Court stated in an analogous

10 situation, “there is no reason to believe [the County and Lipetzky] would replace their present

11 [initial appearance] procedures with procedures that they regarded as unsatisfactory even

12 before the commencement of this litigation.” County of Los Angeles v. Davis, 440 U.S. 625,

13 632-33 (1979) (discussing “voluntary cessation” exception).

14

Consequently, Plaintiffs have, at best, the conjectural possibility that the County might

15 at some point in the future elect not to fund the ACER program and, in that unlikely event, that

16 Lipetzky would, contrary to her stated intentions, elect not to staff the initial appearances. For

17 the reasons stated in Noatak and Tuleberg, this is insufficient to meet Plaintiffs’ burden of

18 proof on this exception and, therefore, it cannot apply here.

19

2. “Voluntary Cessation”

20

The “voluntary cessation” exception is also inapplicable to this case. First, this

21 exception applies to cases where the change in policy occurs “because of the litigation.” PUC

22 v. FERC, 100 F.3d 1451, 1460 (9th Cir. 1996) (italics in original; citing Nome Eskimo

23 Community v. Babbitt, 67 F.3d 813, 816 (9th Cir. 1995); see also Noatak, 38 F.3d at 1510

24 (case not moot “if the defendant voluntarily ceases the allegedly improper behavior in response

25 to a suit”). Second, the undisputed facts, particularly the Board’s legislative actions and

26 16 The Seventh Circuit cited City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 289 (1982), as an example where the presumption was rebutted by the “city’s stating that it intended to reenact the
27 ordinance that had been enjoined.” 445 F.3d at 947; compare City of Mesquite, 455 U.S. at 289 n.11; see also ForestKeeper v. Benson, 108 F.Supp.3d 917, 927-28 (E.D. Cal. 2015) (finding reasonable
28 expectation of similar future litigation based, in part, on contrary public statements by Forest Service).

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1 Lipetzky’s stated intent to continue staffing the initial appearances, establish that “there is no

2 reasonable expectation that the illegal action will recur.” Noatak, supra, 38 F.3d at 1510.

3 Accordingly, this exception does not apply.

4

On the first point, the record establishes that since January 2010, Lipetzky has been

5 interested in staffing the initial appearances. See Lipetzky Decl., ¶10. Significantly, she

6 developed the ACER program and had already commenced the process of implementing it no

7 later than June 7, 2012, which is before Farrow had even submitted a government claim to the

8 County and well before the December 21, 2012 date of filing for this case. Id., ¶11-12. Given

9 this, it cannot be disputed that Lipetzky’s development and implementation of the ACER

10 program was not in response to this litigation or any other litigation. Id., ¶18.

11

In addition, there is no reasonable expectation that the Public Defender would return to

12 not staffing the initial appearances. First, the Board has annually funded the ACER program

13 and enacted a permanent change to the Public Defender’s staffing by adding the two ACER

14 positions. Id., ¶17. These legislative acts alone, even where the Board has the ability to

15 change its mind later, are “usually enough to render a case moot.” Noatak, 38 F.3d at 1510.

16 However, in addition, there is Lipetzky’s stated intention to continue staffing the initial

17 appearances even if the Board were to decline to continue funding. Lipetzky Decl., ¶17. As

18 noted above, her stated intentions are entitled to credence, particularly where she found the

19 prior initial appearance procedures unsatifactory. See supra at 33-34.

20

The undisputed facts establish the “voluntary cessation” exception is not applicable and,

21 thus, the Court should find Plaintiffs’ claims for declaratory and injunctive relief moot.

22 V. CONCLUSION

23

For the reasons stated above, the Court should grant the County’s motion for summary

24 judgment in its entirety and enter judgment in favor of the County, or, in the alternative,

25 summary adjudication on each claim.

26 ///

27 ///

28 ///

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1 DATE: November 22, 2017 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

SHARON L. ANDERSON COUNTY COUNSEL
By: /s/ D. Cameron Baker D. CAMERON BAKER Deputy County Counsel Attorneys for Defendant CONTRA COSTA COUNTY

NOTICE OF MOTION AND MOTION OF DEFENDANT CONTRA COSTA COUNTY FOR SUMMARY

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United States District Court Northern District of California

1

2

3

4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6
JOHN FARROW, et al., 7
Plaintiffs, 8
v. 9
CONTRA COSTA COUNTY, 10
Defendant. 11

Case No. 12-cv-06495-JCS
ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT AND MOTION TO EXCLUDE EXPERT TESTIMONY Re: Dkt. Nos. 125, 126, 128

12 I. 13

INTRODUCTION Plaintiffs John Farrow and Jerome Wade brought this putative class action asserting a

14 number of claims based on the alleged failure of Defendant Contra Costa County (the “County”)

15 to provide appointed counsel at Plaintiffs’ first court appearances, or within a reasonable time

16 thereafter, in criminal proceedings in state court. After multiple motions to dismiss, an appeal to

17 the Ninth Circuit, and remand to this Court, Plaintiffs’ remaining claims are for failure to provide

18 counsel as required by the Sixth Amendment within a reasonable time after the right attached, and

19 for a writ of mandamus to enforce Contra Costa Public Defender Robin Lipetzky’s obligations

20 under section 27706 of the California Government Code. In accordance with the case schedule set

21 by the Court, the parties now bring cross motions for summary judgment on Plaintiffs’ individual

22 claims before the question of class certification has been addressed, and the County moves to

23 exclude the opinions of Plaintiffs’ expert witness. The Court held a hearing on January 19, 2018.

24 For the reasons discussed below, the County’s motion to exclude expert testimony is GRANTED

25 IN PART, Plaintiffs’ motion for summary judgment is DENIED, the County’s motion for

26 summary judgment is GRANTED as to Plaintiffs’ Sixth Amendment claim, and Plaintiffs’ state

27

28

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United States District Court Northern District of California

1 law claim is DISMISSED for lack of jurisdiction.1

2 II. BACKGROUND

3

A. Procedural History and Allegations

4

1. May 2013 Order

5

Plaintiffs’ original complaint included six claims against Robin Lipetzky, the Contra Costa

6 County Public Defender: (1) violation of Plaintiffs’ right to counsel under the Sixth Amendment;

7 (2) violation of Plaintiffs’ right to a speedy trial under substantive due process protections of the

8 Fourteenth Amendment; (3) violation of Plaintiffs’ right to a speedy trial under procedural due

9 process protections of the Fourteenth Amendment; (4) violation of Plaintiffs’ procedural due

10 process rights under the Fourteenth Amendment with respect to the timing of Plaintiffs’ bail

11 hearings; (5) violation of California Civil Code sections 52 and 52.1; and (6) a claim for a writ of

12 mandate to enforce California Government Code section 27706. See Order Granting Def.’s Mot. 13 to Dismiss Compl. (“May 2013 Order,” dkt. 47) at 5–6.2

14

The Court held that Plaintiffs’ right to counsel attached at their first court appearances, but

15 that neither that appearance nor the waiting period before the second appearance was a “critical 16 stage” at which counsel was required. Id. at 14–20. The Court also held that the delay in

17 appointing counsel between the time of attachment and the second appearance—which, unlike the

18 first, was a critical stage—did not violate the Supreme Court’s instruction that counsel must be

19 provided within a reasonable time after attachment, because the delay was shorter than in other

20 district court cases that found no violation, and because Plaintiffs did not adequately allege that 21 they were prejudiced by the delay. Id. at 20–22 (citing Rothgery v. Gillespie County, 554 U.S. 191

22 (2008)). The Court therefore dismissed Plaintiffs’ Sixth Amendment claim with leave to amend.

23 Id. The Court also dismissed Plaintiffs’ other federal claims with leave to amend, for reasons that

24 are not relevant to the present motion because Plaintiffs did not renew those claims. Id. at 23–31.

25

26 1 The parties have consented to the jurisdiction of the undersigned magistrate judge for all

27

purposes pursuant to 28 U.S.C. § 636(c). 2 Farrow v. Lipetzky, No. 12-cv-06495-JCS, 2013 WL 1915700 (N.D. Cal. May 8, 2013).

28

Citations herein to this Court’s previous orders refer to page numbers of the versions filed in the Court’s ECF docket.

2

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1 With no federal claims remaining, the Court declined to exercise supplemental jurisdiction over 2 Plaintiffs’ state law claims. Id. at 31–32.

3

2. August 2013 Order

4

After the Court dismissed the initial complaint, Plaintiffs amended their complaint twice,

5 and Lipetzky moved to dismiss the second amended complaint. See generally Order Granting 6 Def.’s Mot. to Dismiss 2d Am. Compl. (dkt. 69).3 The Court granted that motion and dismissed 7 all claims, although it allowed Wade leave to amend his Sixth Amendment claim. Id. at 1–2.

8

With respect to the Sixth Amendment claim, the Court reaffirmed its previous holdings

9 that neither the first appearance nor the waiting period before the second appearance was a critical

10 stage at which Plaintiffs were entitled to counsel, but the second appearance was a critical stage. 11 Id. at 22–26 (citing Lopez-Valenzuela v. County of Maricopa, 719 F.3d 1054 (9th Cir. 2013),

12 subsequently superseded sub nom. Lopez-Valenzuela v. Arpaio, 770 F.3d 772 (9th Cir. 2014) (en 13 banc)4). Turning to the question of whether the challenged policy failed to provide counsel within

14 a reasonable time after attachment of the right, the Court held that although Plaintiffs added

15 allegations regarding the effect of the delay, the allegations did not sufficiently identify any actual 16 prejudice that Plaintiffs suffered as a result. Id. at 26–27. Because Plaintiffs came closer to

17 plausibly alleging prejudice to Wade than to Farrow, the Court dismissed Wade’s Sixth

18 Amendment claim with leave to further amend but dismissed Farrow’s claim with prejudice.

19

The Court dismissed Plaintiffs’ remaining federal claims with prejudice, for reasons that

20 are not relevant to the present motion, and again declined to exercise supplemental jurisdiction 21 over Plaintiffs’ state law claims. Id. at 28–35. Wade declined to further amend his Sixth

22 Amendment claim, and Plaintiffs instead appealed to the Ninth Circuit.

23

24 3 Farrow v. Lipetzky, No. 12-cv-06495-JCS, 2013 WL 4042276 (N.D. Cal. Aug. 7, 2013), rev’d in

25

part, 637 F. App’x 986 (9th Cir. 2016). 4 The initial Ninth Circuit panel to hear Lopez-Valenzuela affirmed the district court’s grant of

26

summary judgment for the defendants on claims under multiple constitutional theories. See generally Lopez-Valenzuela v. County of Maricopa, 719 F.3d 1054. This Court’s August 2013

27

order relied on that panel’s Sixth Amendment holding. Later, an en banc panel reached a different outcome, reversing the holding as to substantive due process and finding the Arizona laws at issue

28

facially invalid on that basis, but declined to address the plaintiffs’ Sixth Amendment claims. See Lopez-Valenzuela v. Arpaio, 770 F.3d at 791–92.

3

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United States District Court Northern District of California

1

3. Ninth Circuit Decision and Denial of Certiorari

2

The Ninth Circuit affirmed this Court’s dismissal of Plaintiffs’ due process and equal

3 protection claims. Farrow v. Lipetzky, 637 F. App’x 986, 987−88 (9th Cir.) (dkt. 81), cert.

4 denied, 137 S. Ct. 82 (2016). As for Plaintiffs’ Sixth Amendment claims, the panel affirmed this

5 Court’s conclusion that, on the facts alleged, Plaintiffs’ first court appearance was not a critical

6 stage that required the presence of counsel. Id. at 988. The panel held that this Court erred,

7 however, in its analysis of whether counsel was appointed within a reasonable time after

8 attachment of the right, and remanded for consideration of that issue under the correct legal

9 standard:

10

The remaining question is whether Lipetzky appointed counsel

within a “reasonable time after attachment to allow for adequate

11

representation at any critical stage before trial, as well as at trial

itself.” Rothgery, 554 U.S. at 212. In other words, how soon after

12

the Sixth Amendment right attaches must counsel be appointed, and

at what point does delay become constitutionally significant?

13

Instead of addressing whether the delay in appointing counsel was

unreasonable, the district court considered only whether the delay

14

“impacted [plaintiff’s] representation at subsequent critical stages of

his proceedings.” By framing the question in that way, the district

15

court erroneously required the plaintiffs to allege actual prejudice.

See United States v. Wade, 388 U.S. 218, 225, 236–37 (1967)

16

(finding a Sixth Amendment violation based on the “grave potential

for prejudice”); Hamilton v. Alabama, 368 U.S. 52, 54 (1961)

17

(finding a Sixth Amendment violation where the absence of counsel

“may affect the whole trial”). We therefore remand for the district

18

court to consider whether appointing counsel five to thirteen days

and “sometimes longer” after the right attaches complies with the

19

“reasonable time” requirement articulated in Rothgery.

20 Id. at 988–89 (alteration in original). The panel also directed this Court to reconsider whether

21 supplemental jurisdiction over Plaintiffs’ state law claims is appropriate in light of the Court’s

22 reconsideration of the Sixth Amendment claim. Id. at 989. The Supreme Court denied Plaintiffs’

23 petition for certiorari on October 3, 2016. See dkt. 102.

24

4. Third Amended Complaint and Facts Subject to Judicial Notice

25

Following remand to this Court, Plaintiffs filed their operative third amended complaint,

26 alleging that Lipetzky implemented a written policy that “arbitrarily withheld legal representation

27 to indigent, in-custody criminal defendants for a period of 5 to 13 days after their initial Court

28 appearance.” 3d Am. Compl. (“TAC,” dkt. 91) ¶ 1. Under that policy, Plaintiffs alleged that a 4

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United States District Court Northern District of California

1 defendant would not receive counsel at the defendant’s first court appearance, but if a defendant

2 requested counsel at that appearance and could not afford to pay, the court would set bail, refer the

3 defendant to the public defender, and continue the case for a “further arraignment” several days 4 later. See id. ¶¶ 1–2, 4, 21, 27, 36.

5

Plaintiffs alleged that Farrow was arrested on August 30, 2011, based on allegations that

6 he had assaulted his domestic partner. Id. ¶¶ 25, 31. He first appeared in court on September 2,

7 2011, at which time the judge asked if he could afford counsel and would like the court to appoint 8 counsel. Id. ¶¶ 26–27. Farrow replied that he could not afford counsel and would like appointed

9 counsel, and the judge “set bail, ‘referred the matter to the Public Defender,’ and continued the

10 matter to September 15, 2011 for ‘further arraignment.’” Id. ¶ 27. The judge also asked the

11 probation department to prepare a bail study, which according to Plaintiffs was prepared during

12 the period between the two court appearances and included only information unfavorable to

13 Farrow because, without counsel, there was no way for him to provide mitigating information

14 such as his ties to the community or employment status. Id. ¶ 28. The judge did not advise

15 Farrow of his right to enter a plea at the first appearance, and Farrow remained in jail for the next

16 thirteen days. Id. ¶ 27.

17

Plaintiffs alleged that Farrow was appointed counsel and entered a plea at his second

18 appearance on September 15, 2011, which was sixteen days after his arrest and thirteen days after

19 his first appearance. Id. ¶ 29. According to Plaintiffs, the delay in Farrow obtaining counsel

20 “might have” contributed to his investigator’s failure to locate witnesses whose testimony could

21 have implicated the credibility of the complaining witness (Farrow’s domestic partner) and thus

22 “would have had an enormous impact on plea negotiations and may have resulted in acquittal had

23 the matter gone to trial.” Id. ¶ 31. Farrow pled guilty to one count against him on December 1,

24 2011. Def.’s Req. for Judicial Notice (“RJN,” dkt. 94) Ex. A.

25

Plaintiffs alleged that Wade, then seventeen years old, was arrested at his high school on

26 November 8, 2011 for his alleged involvement in a convenience store robbery. TAC ¶¶ 32, 43.

27

28 5

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United States District Court Northern District of California

1 Wade first appeared without counsel on November 14, 2011. Id. ¶ 33.5 A county prosecutor also

2 appeared in court that day, which Plaintiffs alleged made the appearance “an adversarial

3 encounter.” Id. ¶ 35. The judge set bail and asked Wade whether he could afford counsel and

4 whether he would like counsel appointed. Id. ¶ 36. Wade responded that he could not afford

5 counsel and would like appointed counsel, and the judge “‘referred the matter to the Public

6 Defender,’ and continued the matter to November 21 for ‘further arraignment.’” Id. Plaintiffs

7 alleged that the judge did not advise Wade of “his right to enter a plea, his right to bail, his right to

8 prompt arraignment or his right to a speedy preliminary hearing and trial.” Id. As in the case of

9 Farrow, the judge also referred the matter to the probation department for a bail study, which,

10 according to Plaintiffs, did not include information favorable to Wade because he did not have

11 counsel. Id. ¶ 37. Wade remained in jail for seven days. Id. ¶ 36.

12

According to Plaintiffs’ allegations, the police and district attorney continued their

13 investigation of Wade’s case during the period between his first and second court appearances. Id.

14 ¶ 39. On November 18, 2011, the district attorney filed an amended complaint adding new

15 charges and significantly increasing Wade’s exposure. Id. ¶ 40. Plaintiffs alleged that the district

16 attorney was able to do so without leave of the court because Wade had not yet entered a plea. Id.

17

Wade was appointed counsel at his second court appearance on November 21, 2011. Id.

18 ¶ 41. Later, his investigator interviewed his high school principal, who had been present when the

19 police interrogated Wade. Id. ¶ 42. Plaintiffs alleged that the principal could not remember when

20 Wade was given Miranda warnings or whether he had been wearing a sweatshirt that connected

21 him to the robbery, and that she “likely” would have remembered what Wade was wearing if she

22 had been interviewed sooner. Id. ¶¶ 42, 43. Plaintiffs also suggested (but did not specifically

23 allege) that the principal’s memory of the Miranda warnings would have been clearer during an

24 earlier interview. See id. Wade pled guilty to three counts on December 6, 2012. RJN Ex. B.

25

The Third Amended Complaint included three claims: (1) a claim under 42 U.S.C. § 1983

26 for violation of Plaintiffs’ Sixth Amendment right to counsel, TAC ¶¶ 56−58; (2) a claim under

27

28

5 Plaintiffs alleged that Wade was held illegally for four days before his first appearance, but did not bring a claim based on that pre-appearance detention. See TAC ¶ 34.

6

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United States District Court Northern District of California

1 the Bane Act, sections 52 and 52.1 of the California Civil Code, for violation of Plaintiffs’ civil 2 rights, TAC ¶¶ 59−60; and (3) and a claim under sections 1085 and 1086 of the California Code of

3 Civil Procedure for a writ of mandate to enforce section 27706 of the California Government

4 Code, which requires public defenders to represent criminal defendants “at all stages of the 5 proceedings,” TAC ¶¶ 61−63. Plaintiffs characterized their claims as “a facial challenge to the

6 constitutionality of Defendant’s written policy of arbitrarily withholding counsel for an

7 unreasonable period of time” on behalf of all persons who “were subjected to the deprivation of

8 counsel at their first court appearance and were forced to continue their cases for 5 days or more

9 for appointment of counsel, pursuant to the Public Defender’s written Policy,” from December 21, 10 2010 through the resolution of this action. Id. ¶¶ 45−48.

11

5. April 2017 Order and Substitution of Defendant

12

Lipetzky again moved to dismiss, and the Court granted that motion in part. Addressing an

13 argument that Lipetzky raised for the first time after remand from the Ninth Circuit, the Court held

14 that Heck v. Humphrey, 512 U.S. 477 (1994), did not bar Plaintiffs’ Sixth Amendment claim in its

15 entirety because a Sixth Amendment violation for failure to appoint counsel within a reasonable

16 time after attachment (as discussed in Rothgery) “would not necessarily imply the invalidity of

17 Plaintiffs’ convictions in state court.” Order Regarding Mot. to Dismiss 3d Am. Compl. (“Apr. 18 2017 Order,” dkt. 107) at 25.6 The Court rejected Lipetzky’s argument that Plaintiffs’ claim for

19 unreasonably delayed appointment of counsel must be evaluated under the ineffective assistance

20 standards set forth in either Strickland v. Washington, 466 U.S. 668 (1984), or United States v.

21 Cronic, 466 U.S. 648 (1984), both of which would require per se reversal of Plaintiffs’ convictions

22 and would therefore be barred by Heck, because the Court determined that those cases’ focus on

23 prejudice was inconsistent with the Ninth Circuit’s instructions that Plaintiffs need not show

24 prejudice here. Apr. 2017 Order at 16–17, 24–25 (“The Court is not persuaded by Lipetzky’s

25 argument that the Ninth Circuit has asked this Court to analyze Plaintiffs’ claims in ‘the

26 Strickland/Cronic framework.’” (quoting Lipetzky’s reply brief)). The Court held that Heck did,

27

28 6 Farrow v. Lipetzky, No. 12-cv-06495-JCS, 2017 WL 1540637 (N.D. Cal. Apr. 28, 2017). 7

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1 however, bar Plaintiffs’ Sixth Amendment claim to the extent that it was based on a theory that

2 they were denied counsel at a “critical stage” of a criminal prosecution, because such a

3 deprivation—at least for the particular stage at issue—would be grounds for per se reversal of

4 Plaintiffs’ convictions. Id. at 22–23. The Court also held that even with respect to the

5 unreasonable delay claim, Heck dictates that Plaintiffs’ “‘compensable injury . . . does not

6 encompass the “injury” of being convicted [or] imprisoned.’” Id. at 27–28 (quoting Heck, 512

7 U.S. at 487 n.7) (alterations in original).

8

Having held that Plaintiffs’ claim for delayed appointment of counsel survived Heck, the

9 Court turned to what standards should apply to evaluate that claim, and whether Plaintiffs’

10 complaint plausibly stated such a claim. Id. at 25–27. With the exception of one Middle District

11 of Louisiana case that required a showing of prejudice inconsistent with the Ninth Circuit’s

12 holding on appeal here, the Court found no authority articulating such a standard. Id. at 26. The

13 Court therefore held “for the purpose of the [motion to dismiss] that the reasonableness of a delay

14 in appointing counsel after attachment depends on the totality of the circumstances, including the

15 time needed to prepare for an upcoming critical stage—but not limited to that factor.” Id. at 27.

16 The Court held Plaintiffs’ allegations sufficient to state such a claim, which “does not lend itself to

17 resolution on the pleadings.” Id.

18

Because at least one aspect of Plaintiffs’ federal Sixth Amendment claim survived the

19 motion to dismiss, the Court had supplemental jurisdiction over the state law claims, and

20 examined those as well. Id. at 28–32. The Court dismissed Plaintiffs’ Bane Act claim with

21 prejudice for failure to establish that Plaintiffs had a right to enter pleas at their first court

22 appearances, and for failure to allege coercion. Id. at 28–30. The Court allowed Plaintiffs’ claim

23 under Government Code section 27706 to go forward, noting that the public defender’s obligation

24 to represent indigent defendants at “all stages of the proceedings” is broader than the “critical

25 stages” at which counsel is required under the Sixth Amendment, and that the obligation is

26 triggered not only by appointment by the court, but also by a defendant’s request for

27 representation. Id. at 30–31. The Court did “not decide at [that] time whether section 27706

28 requires a public defender standing by at a defendant’s first court appearance to provide 8

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1 representation immediately if requested, or whether the statute implicitly allows the public

2 defender a reasonable period of time to begin representation after request by an indigent defendant

3 or appointment by the court.” Id. at 31–32.

4

After the Court issued its decision on the motion to dismiss the third amended complaint,

5 the parties stipulated to substitute the County for Lipetzky as the defendant in this action. See

6 Stip. (dkt. 115); Order on Stip. (dkt. 116).

7

B. Evidentiary Record

8

1. 1984 Letter

9

In a letter dated August 27, 1984, David Coleman, then the supervising attorney of the

10 Richmond branch of the County’s Public Defender’s Office, wrote to a judge of the Bay

11 Municipal Court in Richmond, California “to clarify and memorialize our understanding of how

12 the client referral process will operate between the arraignment department of your court and our 13 office.” Martin Decl. (dkt. 125-1) Ex. 1 at 008.7 The letter stated that when an in-custody

14 defendant requested referral to the Public Defender’s Office, a courtroom clerk would provide a

15 referral form and copy of the complaint to the Public Defender’s Office no later than 5:00 PM the

16 same day. Id. at 010. An attorney would at some point thereafter interview the defendant at the

17 County’s detention facility in Martinez, California, and would be prepared to appear with the

18 defendant and enter a plea “on the afternoon of the third court day following the date of the

19 referral.” Id. The letter acknowledged that the probation department might require more than

20 three days for a bail study, and that the arraignment might therefore take place more than three

21 days after the defendant requested referral, but the letter stated that an attorney from the Public

22 Defender’s Office “will appear on any date such a coordinated appearance for a plea and bail

23 study be scheduled, as long as it is no sooner than three court days away.” Id. The letter went on

24

25

7 Several of Plaintiffs’ exhibits include witness depositions and related documents as a single exhibit, with the documents, or portions thereof, inserted throughout the transcript. This order

26

cites to non-transcript documents using Plaintiffs’ three-digit Bates numbers. Citations to deposition testimony are identified as such and use the Bates numbers as well as the page and line

27

numbers from the deposition transcripts, with a comma separating Bates citations from transcript pagination. In some exhibits, excerpts of documents and deposition transcripts are not presented

28

in order. Plaintiffs are discouraged from using this format of consolidated, out-of-order exhibits in future filings.

9

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1 to state that the same schedule would apply in multiple defendant cases where one or more

2 attorneys would be appointed from the Bar Association Conflicts Panel, and that in those cases the

3 Public Defender’s Office would provide “provisional” notice of a conflict to the panel by noon of

4 the court day following referral, although a final determination of financial eligibility would

5 usually not be completed at the time of provisional notice. Id. at 010–11.

6

Robin Lipetzky, the current public defender, testified that she had no independent

7 knowledge of the 1984 letter and that it appeared to refer only to proceedings in the Richmond

8 courthouse. Martin Decl. Ex. 1 (Lipetzky Dep.) at 007, 20:16–25.

9

2. More Recent Practices of the Public Defender’s Office and Other Testimony

of Robin Lipetzky

10

11

Lipetzky testified regarding the Public Defender’s Office’s practices regarding

12 representation at indigent misdemeanor and felony defendants’ arraignments, including the older

13 policy of bifurcated arraignments that Plaintiffs in this case experienced, a pilot program for

14 providing representation at some first appearances in one courthouse, and a newer policy of

15 representing nearly all indigent defendants at their first court appearances. Lipetzky has worked

16 for the County’s Public Defender’s Office since 1990, initially as a deputy public defender, and in

17 her current position as public defender for the County she is a department head in charge of the

18 Public Defender’s Office and sets policy for the office. Martin Reply Decl. (dkt. 142-1) Ex. 14

19 (Lipetzky Dep.) at 329, 7:12–8:16; id. at 338, 23:13–15.

20

In 2010, defendants charged with misdemeanors in the County were arraigned without

21 counsel, and if they desired appointment of counsel, were referred by the court to the Public

22 Defender’s Office and required to come back for another court appearance at a later date. Id. at

23 012–13, 22:18–23:12. According to Lipetzky, many defendants waived their right to counsel and

24 proceeded without counsel at the first appearance. Id. at 013, 23:3–12. Lipetzky had set a goal in

25 2010 of providing counsel for all misdemeanor defendants’ first court appearances. Id. at 012,

26 22:10–17.

27

Although Lipetzky provided some testimony regarding the arraignment process for out-of-

28 custody misdemeanor defendants, she testified that she was “not sure [she] ever knew what the 10

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1 misdemeanor process was” for in-custody defendants, and that she could instead “speak to [the

2 process for] felony in-custody clients.” Baker Decl. (dkt. 129) Ex. D (Lipetzky Dep.) at 44:5–11.

3 After reading the charges at a felony defendant’s first appearance, the court would ask if the

4 defendant could hire an attorney. Id. at 44:12–14. If the defendant said “no,” the court would

5 refer the case to the Public Defender’s Office and set the matter for a subsequent “counsel-and-

6 plea” calendar date, and “sometime between that time and the time of the next court date,” the

7 Public Defender’s Office would get the referral. Id. at 44:15–16. According to Lipetzky’s

8 declaration, the referrals were provided “by the following business day” along with “the complaint

9 and discovery if available.” Lipetzky Decl. (dkt. 131) ¶ 3. Some courthouses had “counsel-and-

10 plea” calendars twice each week, while others had only one per week. Id.; Baker Decl. Ex. D

11 (Lipetzky Dep.) at 45:3–9. Lipetzky did not know how the courts determined which calendar to

12 set a defendant’s second appearance for, and was not aware of any cases where a court set the

13 appearance further out than one of the next two “counsel-and-plea” days, or longer than two weeks

14 from the first appearance. Martin Decl. Ex. 1 (Lipetzky Dep.) at 084–86, 109:19–111:20. The

15 Public Defender’s Office had no involvement in setting the second appearance date. Lipetzky

16 Decl. ¶ 3. A page of the Public Defender’s Office’s website listing answers to frequently asked

17 questions included a section briefly describing this process. Martin Decl. Ex. 1 at 037. Lipetzky

18 states in her reply declaration that she is aware of other California counties that did not provide

19 counsel at indigent defendants’ first court appearances in 2011. Lipetzky Reply Decl. (dkt. 141-2)

20 ¶ 4.

21

According to Lipetzky, after receiving a referral, her office conducted an initial

22 investigation into whether the referred person was financially eligible and whether conflicts or

23 excessive caseload precluded the main Public Defender’s Office from taking the case, which

24 began usually one or two days after receipt of the referral with “a paralegal visiting the person at

25 the jail to gather information such as financial status, information relevant to a potential bail

26 motion, and basic information about the charged offense.” Lipetzky Decl. ¶ 4. The office would

27 “take steps to address” any “immediate needs” disclosed during that initial interview, “such as

28 mental health concerns, injuries that needed to be documented, misidentity, or the need to preserve 11

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1 evidence that could be lost or destroyed.” Id. The Public Defender’s Office would then check for

2 conflicts of interest and determine if it had sufficient staffing to take the case, and would refer

3 clients that it could not take on to the County’s Alternate Defender’s Office, which would check

4 for its own conflicts. Id. ¶ 5. If the Alternate Defender’s Office also could not represent the

5 client, it would refer the matter to the conflict panel, which would appoint an attorney from the

6 panel. Id.

7

Lipetzky testified that she did not “challenge” the County’s policy of bifurcating

8 arraignments in 2010. Martin Decl. Ex. 1 (Lipetzky Dep.) at 026, 73:10–14. She did not recall

9 whether she “raise[d] the issue with anybody” in 2011. Id. at 026, 73:15–22. She testified at her

10 deposition that she did not “take any action prior to [receiving Farrow’s government claim in this

11 case] to stop this practice” of bifurcating arraignments, id. at 026–27, 73:23–74:10, but states in a

12 reply declaration that during her 2017 deposition, her “memory was hazy on the exact timing of

13 [her] actions in 2012,” and that subsequent review of documents refreshed her memory that at the

14 time she received Farrow’s claim on June 26, 2012, she had in fact already implemented a pilot

15 project at the Delta courthouse and developed and begun soliciting funding for a program to

16 further expand representation at indigent defendants’ first appearances, as discussed below.

17 Lipetzky Reply Decl. ¶ 2 (citing Lipetzky Decl. Ex. G).

18

In “mid-2012,” deputy public defenders began representing out-of-custody misdemeanor

19 defendants at their first appearances through a pilot program at the Delta courthouse, located in

20 Pittsburg, California. Lipetzky Decl. ¶ 11; Martin Decl. Ex. 1 (Lipetzky Dep.) at 018, 34:5–15.

21 At some point—the date is not clear from the record—Lipetzky stated that her office would

22 expand representation at first appearances to other courthouses if staffing levels increased. Id. at

23 028, 32:3–22. Plaintiffs’ counsel asked Lipetzky if she agreed that she had a legal mandate to

24 provide such representation, but her answer is not included in the excerpt in the record. Id. at 028,

25 32:23–25.

26

In a document dated June 7, 2012 discussing funds provided under the Public Safety

27 Realignment Reform Act of 2011, also known as Assembly Bill 109, Lipetzky proposed creation

28 of the Arraignment Court Early Representation (“ACER”) program to provide counsel at all in12

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1 custody indigent defendants’ first court appearances, a proposal that Lipetzky had developed over

2 the preceding months. Lipetzky Decl. ¶ 12 & Ex. G. Lipetzky states that her decision to develop

3 and implement the ACER program was not related to this or any other litigation. Id. ¶ 18. A

4 report dated July 13, 2012 further discussed the proposal. Martin Decl. Ex. 1 at 032. That report

5 stated that indigent defendants did not have a real opportunity to request lower bail or release on

6 their own recognizance until their second, counseled court appearance, and that providing

7 representation at the first appearance would save the county money because fewer defendants

8 would ultimately be held in pretrial custody. Martin Decl. Ex. 1 at 064. Based on statistics from

9 the ACLU, the report stated that roughly eighty-five percent of the County’s jail population was

10 made up of defendants awaiting trial, which was higher than both the state and national averages.

11 Martin Decl. Ex. 1 (Lipetzky Dep.) at 054, 62:7–25. A September 2012 report describing the

12 proposal indicated that it would resolve the problem of such defendants having to “wait a period

13 of time—between 7 and 14 days—in custody before their next court date when they will have an

14 attorney to represent them.” Martin Decl. Ex. 1 at 034. Lipetzky testified that those times were

15 “not entirely accurate for every case, but yes.” Martin Decl. Ex. 1 (Lipetzky Dep.) at 033, 55:10–

16 25. Lipetzky testified that she believed the longest period a defendant spent in custody between

17 the first and second appearances was “about 13 days,” but she had not researched the issue. Id. at

18 083, 47:14–20.

19

Funding was secured for the program, and the Public Defender’s Office was able to

20 provide counsel at defendants’ first appearances beginning January 9, 2013, except for out-of21 custody misdemeanor defendants at the Richmond courthouse.8 Id. at 055, 83:1–6; Lipetzky Decl.

22

23

8 As of the date of Lipetzky’s deposition in this case, the Richmond courthouse did not permit attorneys from the public defender’s office to represent out-of-custody misdemeanor defendants at

24

their first court appearances. Martin Decl. Ex. 1 (Lipetzky Dep.) at 018, 34:17–38:9. In many cases, judges at that courthouse will present unrepresented misdemeanor defendants with three

25

options: (1) the defendant can resolve a case for some negotiated disposition presented by the court at the first appearance; (2) the defendant can hire a private lawyer and return at a later date;

26

or (3) the court can refer the defendant to the public defender’s office. Id. at 023–25, 39:11–41:9. According to Lipetzky, when attorneys from the public defender’s office attempted to inform

27

defendants of their availability represent them before the calendar for first appearances began, the court instructed them not to. Id. at 025, 41:10–24. Lipetzky has not taken legal action in response

28

to the Richmond court’s policy prohibiting such representation. Id. at 021, 37:18–20. That policy is not at issue in this case. Neither Farrow nor Wade appeared in the Richmond courthouse or

13

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1 ¶¶ 13–14 & Exs. J–M. The Public Defender’s Office has “staffed the initial appearance” or

2 arranged for conflicts panel representation of all defendants at their first appearances at other

3 courthouses, as well as all felony defendants and in-custody misdemeanor defendants in

4 Richmond. Martin Decl. Ex. 1 (Lipetzky Dep.) at 078, 50:1–12; Lipetzky Decl. ¶¶ 15–16. “In the

5 case of an obvious conflict, such as multiple defendants charged with the same offense, the case

6 will be referred to the Alternate Defender’s Office and the matter continued a short period of time

7 (not more than two days) for appearance by” an attorney from that office. Lipetzky Decl. ¶ 15.

8 As a result of implementation of the ACER program, some defendants have been released from

9 custody sooner than they would have been under the old system of bifurcated arraignments.

10 Martin Decl. Ex. 1 (Lipetzky Dep.) at 038, 66:1–6. When such defendants receive sentences for

11 time served, or have a case disposed of at the first appearance, the new policy has resulted in some

12 defendants spending less total time in jail. Id. at 039, 69:1–8. Lipetzky has not kept accurate

13 statistics of how many defendants are released at the first appearance under the new system, but

14 testified that in aggregate, she believes the ACER program has reduced the number of pretrial

15 custody days for indigent defendants. Id. at 045, 97:11–22; id. at 078, 50:18–21. She states in her

16 declaration that she “commit[s] to continue the current practice of staffing the arraignment courts

17 with an attorney and a legal assistant” even if the County were to discontinue funding for the

18 ACER program, which she has “no reason to believe” would occur. Lipetzky Decl. ¶ 17.

19

Lipetzky testified that under the old system, defendants who had been misidentified or

20 were ultimately acquitted sometimes spent longer in jail than they would have under the new

21 system. Martin Decl. Ex. 1 (Lipetzky Dep.) at 041–43, 77:7–15, 81:23–82:12. In Lipetzky’s

22 approximately twenty years of experience as a deputy public defender, during the period when

23 courts in the County used the bifurcated arraignment system, some of her clients were released

24 from custody as a result of bail motions at the second court appearance, and she testified that they

25 “presumably” would have been released at the first appearance if they had been provided with

26 representation at that appearance. Id. at 027, 74:11–25; id. at 040, 75:13–25; but see Lipetzky

27 28 faced misdemeanor charges, and the Superior Court is not a defendant here.
14

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1 Reply Decl. ¶ 3 (clarifying that Lipetzky has “no personal knowledge of any instance where a

2 criminal defendant served additional time in pretrial detention as a result of [her] office not

3 staffing the initial appearance”). Lipetzky testified that a defendant who “has to stay in jail longer

4 than necessary . . . risk[s] losing jobs, losing their housing, losing custody of their children, those

5 sorts of things.” Martin Decl. Ex. 1 (Lipetzky Dep.) at 039, 69:22–25. In a report promoting the

6 ACER program, Lipetzky wrote that it would reduce recidivism by allowing defendants to

7 maintain employment and community ties that would otherwise be jeopardized during pretrial

8 detention. Id. at 061–62, 71:3–72:13.

9

A January 2016 performance review of the ACER program stated that “roughly between

10 20% and 40% of all detained defendants” were released at their first appearances, and that

11 “roughly 10% of all cases” received expedited dispositions. Martin Decl. Ex. 1 at 047. Lipetzky

12 testified that she had no reason to doubt those numbers but could not say whether they were true.

13 Martin Decl. Ex. 1 (Lipetzky Dep.) at 046, 98:3–5. A February 2016 report on the program in

14 fiscal year 2014/2015 stated that the program facilitated pretrial release and early case resolution,

15 and cited statistics on the percentage of cases where those goals were achieved. Martin Decl. Ex.

16 1 at 050. Lipetzky testified that she could not confirm the accuracy of the statistics but she agreed

17 that the program helped achieve those goals. Martin Decl. Ex. 1 (Lipetzky Dep.) at 048–49,

18 100:7–101:20. One report indicated that ACER had saved the courts and sheriff’s department

19 money, but Lipetzky testified that she could not confirm whether that was true. Id. at 065, 86:9–

20 25; Martin Decl. Ex. 1 at 066. She testified that ACER has required increased resources from the

21 Public Defender’s Office because the old system of regularly scheduled plea-and-counsel

22 calendars was more efficient for the office than appearing at every first appearance, even though it

23 was less efficient for defendants themselves. Martin Decl. Ex. 1 (Lipetzky Dep.) at 078–79,

24 50:22–51:13.

25

In a report dated July 1, 2012 assessing the performance of the Public Defender’s Office in

26 fiscal year 2011/2012, Lipetzky wrote that the office had a shortage of felony attorneys and was

27 “unable to fulfill its mandate to provide competent representation to all of the clients referred to”

28 it. Martin Reply Decl. Ex. 14 at 322. As a result, the office had “steadily increased” the number 15

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1 of cases it referred to private attorneys through the conflicts panel, reaching “roughly 75 per

2 month, at significant ongoing cost to the County.” Id.; see also Martin Reply Decl. Ex. 14

3 (Lipetzky Dep.) at 341–42, 26:14–27:20. Lipetzky testified that in those instances the office could

4 not take on more clients while maintaining constitutional representation for its existing clients.

5 Baker Decl. Ex. D (Lipetzky Dep.) at 27:14–20. From January of 2010 through January 13, 2013,

6 Lipetzky did not receive any complaints from the conflicts panel about the timeliness of referrals

7 to the panel. Lipetzky Decl. ¶ 7.

8

3. Plaintiffs’ Experiences With Delayed Appointment of Counsel

9

a. John Farrow

10

Farrow was arrested on August 30, 2011 on charges including assaulting and threatening

11 his domestic partner. Baker Decl. Ex. A (Farrow Dep.) at 12:18–13:1; Baker Decl. Ex. E.

12 Farrow’s first court appearance took place at the Walnut Creek courthouse of the Superior Court

13 for the County of Contra Costa at 1:30 PM on Friday, September 2, 2011 before Judge Nancy

14 Stark. Martin Supp’l Decl. (dkt. 134) Ex. 4 (Superior Court Clerk’s Docket and Minutes) at 160.

15 Judge Stark asked Farrow if he could afford counsel, to which he replied “[a]bsolutely not,” and if

16 he wanted a lawyer, which he said he did. Baker Decl. Ex. A (Farrow Dep.) at 18:25–19:8. Judge

17 Stark referred the matter to the public defender and to the probation department for a bail study,

18 and continued proceedings to September 15, 2011 at 9:00 AM. Martin Supp’l Decl Ex. 4. The

19 clerk’s minute order appears to indicate that bail was set at $106,000 and Farrow was remanded to

20 county jail. Id.

21

Farrow met with Lorrie Silva, an employee of the Public Defender’s Office, on September

22 6, 2011. Baker Decl. Ex. C (Requests for Admissions) ¶ 7. Silva completed an applicant

23 interview and provided notes to the Public Defender’s office, including that Farrow had no

24 relevant medical or psychiatric history, that he had been in custody since August 31, and that he

25 would like a copy of the police report. Lipetzky Decl. ¶ 6 & Ex. B. According to Lipetzky,

26 neither the referral packet provided to the Public Defender’s Office nor Silva’s interview with

27 Farrow disclosed any urgent issues requiring attention before his next appearance date. Id. ¶ 6.

28 Lipetzky determined that neither the Public Defender’s Office nor the Alternate Defender’s Office 16

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1 could take on Farrow’s case due to their existing caseloads, and referred the case to the conflicts

2 panel on September 14. Id. ¶ 8. Lipetzky states in her declaration that her “office never received

3 a direct request from Mr. Farrow to represent him in this criminal proceeding and was never

4 appointed by the Court to represent Mr. Farrow in this criminal proceeding.” Id. Farrow’s

5 attorney Christopher Martin, who also represented Wade in his criminal case and represents both

6 Plaintiffs in this action, learned that he would represent Farrow in his criminal case at 1:57 PM on

7 September 14. Baker Decl. Ex. C ¶ 2; Baker Decl. Ex. F (Martin Dep.) at 9:25–10:6; Baker Decl.

8 Ex. G. Martin did not do anything related to the case that day. Baker Decl. Ex. F (Martin Dep.) at

9 12:4–7; Baker Decl. Ex. H (billing records).

10

Farrow appeared again on September 15 with Martin representing him, pleaded not guilty

11 to all counts, and appears to have been again remanded to the county jail with bail set at $106,000.

12 Martin Supp’l Decl Ex. 4 at 162. That appearance was the first time Farrow met Martin, and they

13 discussed the case while Farrow was in a holding area near the courtroom, including issues of bail

14 and the fact that Farrow was upset that he had been in custody for weeks without representation.

15 Baker Decl. Ex. A (Farrow Dep.) at 30:8–11; Baker Decl. Ex. F (Martin Dep.) at 13:23–15:14.

16 Martin objected at that hearing to the fact that Farrow had been in custody for thirteen days

17 without a lawyer and asserted that Farrow had been prejudiced by the delay and lack of counsel at

18 his first appearance, but the presiding judge stated on the record that she did not find Farrow’s

19 rights had been violated. Baker Decl. Ex. C ¶¶ 16–18; Baker Decl. Ex. I (transcript of state court

20 proceedings). Martin did not formally request a bail reduction. Baker Decl. Ex. C ¶ 20. Martin

21 did not “perform any legal services” on Farrow’s behalf until the court appearance on September

22 15, and did not begin reviewing discovery until September 19. Id. ¶¶ 9–10. Martin testified that

23 “the Court doesn’t formally appoint in Contra Costa County” and, as is its typical practice, did not

24 discuss appointment of counsel at the hearing, and that he had “accepted appointment through [the

25 public defender’s conflict program]” when he spoke to someone from that office. Baker Decl. Ex.

26 F (Martin Dep.) at 14:4–19.

27

Martin did not request that an investigator seek to locate relevant witnesses until after a

28 preliminary examination on September 27, 2011, and in fact did not communicate with 17

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1 investigator Kent Ringgenberg until November 7. Baker Decl. Ex. C ¶ 5. He testified at his

2 deposition that his decision to engage the investigator to locate those witnesses was based on the

3 complaining witness’s testimony at the preliminary hearing. Baker Decl. Ex. F (Martin Dep.) at

4 19:1–20:11. Ringgenberg attempted to locate the witnesses on approximately November 14, but

5 was not successful. Id. at 26:1–22. Farrow ultimately reached a plea agreement in which he

6 waived his appellate rights and was sentenced to 270 days in county jail. Baker Decl. Ex. A

7 (Farrow Dep.) at 40:9–25, 47:1–14; Baker Decl. Ex. L (plea agreement form).

8

b. Jerome Wade

9

Wade was taken into custody on November 8, 2011 and held at juvenile hall. Martin

10 Reply Decl. Ex. 13 (Wade Dep.) at 309–10, 16:22–17:3. Wade’s first court appearance took place

11 at the Walnut Creek courthouse before Judge Stark on Monday, November 14, 2011. Martin

12 Supp’l Decl. Ex. 5 (Superior Court Clerk’s Docket and Minutes) at 165. Judge Stark asked if

13 Wade needed and could afford a lawyer, and Wade asked Judge Stark to appoint a lawyer for him.

14 Martin Reply Decl. Ex. 13 (Wade Dep.) at 311–12, 18:20–19:2. Judge Stark referred the matter to

15 the public defender and to the probation department for a bail study, and continued proceedings to

16 November 21, 2011 at 8:30 AM. Martin Supp’l Decl. Ex. 5 at 165. The clerk’s minute order

17 appears to indicate that bail was set at $4,350,000 and Wade was remanded to county jail. Id.

18

The Public Defender’s Office determined on November 17, 2011 that it had a conflict of

19 interest because it was taking on representation of one of Wade’s four codefendants, and therefore

20 referred his case to the Alternate Defender’s Office. Lipetzky Decl. ¶ 9 & Ex. D. The Alternate

21 Defender’s Office decided to represent another codefendant and determined on November 18 that

22 it too had a conflict as to Wade. Id. ¶ 9 & Ex. E. As with Farrow, Lipetzky states that Wade

23 never directly requested that the Public Defender’s Office represent him and the court never

24 appointed the Public Defender’s Office to do so. Id. ¶ 9.

25

Martin had a telephone conversation with someone from the conflicts panel regarding

26 taking on representation of Wade’s case at 10:22 AM on November 18, 2011—the same day that

27 the Alternate Defender’s Office determined it could not represent him—and received an email

28 from the panel at 10:56 AM confirming the referral and attaching the “Crimetime calculation” and 18

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1 the complaint. Baker Decl. Ex. F (Martin Dep.) at 31:23–33:5. Martin began working on the case

2 that day, including conducting legal research, and met with Wade at juvenile hall the following

3 day (Saturday, November 19) to discuss the case, including whether Wade had been instructed as

4 to his rights before he made certain admissions during an interrogation. Id. at 37:16–39:4; Baker

5 Decl. Ex. R (billing records).

6

Wade appeared again on November 21, 2011 with Martin representing him, pleaded not

7 guilty to all counts, and appears to have been again remanded to the county jail with bail set at

8 $4,350,000. Martin Supp’l Decl. Ex. 5 at 167. Martin requested authorization to engage

9 Ringgenberg as an investigator for Wade’s case, specifically for the issue of whether Wade had

10 received Miranda warnings, on November 29. Baker Decl. Ex. F. (Martin Dep.) at 42:9–14. On

11 November 30, Martin asked Ringgenberg to report back on that issue “much sooner” than the next

12 court appearance on December 12. Id. at 44:7–20. At some point, no later than December 29 but

13 possibly before that, Martin learned that at least part of Wade’s interrogation had been recorded.

14 Id. at 40:15–22, 49:14–51:6. Martin considered pursuing a motion related to the Miranda issue

15 but he and Wade decided instead to withdraw the motion as a condition of accepting a time-

16 limited plea deal offered by the prosecutor. Id. at 58:1–11. Ringgenberg did not recall at his

17 deposition whether Martin also asked him to investigate what Wade was wearing during the

18 interrogation. Baker Decl. Ex. J (Ringgenberg Dep.) at 22:10–13.

19

Wade pleaded guilty to three counts against him on December 6, 2012, approximately one

20 year after Martin began negotiating a deal with the prosecutor on his behalf. Baker Decl. Ex. O

21 (Wade Dep.) at 24:21–25:24. Wade testified that he actually committed the crimes to which he

22 pleaded guilty and that he was satisfied with Martin’s representation of him. Id. at 29:12–23. He

23 received credit towards his sentence for the time he spent in jail before sentencing. Id. at 71:24–

24 72:10.

25

4. Expert Witness Reports and Testimony

26

a. Robert Boruchowitz

27

Plaintiffs submit an expert witness report from Professor Robert Boruchowitz. See Martin

28 Decl. Ex. 2. Boruchowitz is an attorney with “43 years of experience in public defense.” 19

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1 Boruchowitz Report9 at 17. He served as director of The Defender Association in Seattle for

2 twenty-eight years, supervising as many as ninety attorneys and negotiating “contracts with

3 government funders at the city, county and state level” for which The Defender Association

4 provided service as public defenders. Id. at 18 ¶ 3. Boruchowitz also served as a staff attorney for

5 The Defender Association, representing defendants in a variety of criminal proceedings, from

6 juvenile and misdemeanor cases to at least one case involving capital charges. Id. at 19 ¶¶ 6–7.

7 Boruchowitz participated in the development of public defender standards and model contracts for

8 the American Bar Association and Washington State Bar Association, among other entities. Id. at

9 19 ¶¶ 8, 11. He has consulted for public defender services and associations, or the courts that

10 oversee those services, in a number of states including Washington, Idaho, Utah, Michigan,

11 Wisconsin, Louisiana, Arizona, and Nevada, and has founded or worked with several

12 organizations dedicated to indigent criminal defense. See generally id. at 19–21. He is a

13 “Professor from Practice” and serves as director of the Defender Initiative at the Seattle University

14 School of Law, id. at 20–21 ¶¶ 17–18, and has written and spoken extensively, as well as testified

15 as an expert, on matters related to public defense, id. at 21–26 ¶¶ 23–27. Boruchowitz relied on

16 his experience in the field, “relevant state and federal law as to what constitutes effective

17 assistance of counsel,” and various standards, guidelines, and published ethical opinions in

18 reaching his opinion. Id. at 17 (“Law and Experience Relied On”). He also reviewed the

19 transcripts of both Plaintiffs’ depositions, although he did not review Martin’s or Ringgenberg’s

20 depositions, Martin’s timesheets, or the file on Wade’s criminal case. Martin Opp’n Decl. (dkt.

21 135-1) Ex. 12 (Boruchowitz Dep.) 10:13–11:9, 16:18–22, 21:25–22:4, 57:5–6.

22

Boruchowitz describes the scope of his report as follows:

23

I was requested to provide an opinion on whether and in what

manner having a policy of leaving indigent criminal detainees

24

unrepresented in jail for a period of one to two weeks or more poses

a “grave potential for prejudice” based on the totality of the

25

circumstances test, which should include, but not be limited to,

prejudice at later “critical stages” of the proceedings. I was also

26

27 9 Boruchowitz’s report appears in the record as a portion of Exhibit B to Christopher Martin’s

28

declaration in support of plaintiffs’ motion (Bates numbers 090 through 116), and as Exhibit A to Cameron Baker’s declaration (dkt. 127) in support of the County’s motion to exclude the report.

20

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requested to provide an opinion on whether the Contra Costa

1

Defender’s policy violated California Government Code section

27706.

2

3 Id. at 1 ¶ 1. Citing case law, Boruchowitz states his opinion that “it is not reasonable to delay

4 appointing counsel for five to thirteen days or longer after the right counsel attaches as articulated

5 in Rothgery,” and that “the delay in appointing counsel of five to thirteen days or longer violates

6 California Government Code section 27706.” Id. at 1–2 ¶¶ 4–7.

7

According to Boruchowitz, “[n]ational and state standards require that counsel be provided

8 at the earliest possible time after an accused person is arrested, charged, or appears in court,

9 whichever is earliest.” Id. at 2 ¶ 8. He cites a number of standards and guidelines discussing the

10 importance of timely representation. Id. at 2–5 ¶¶ 9–14. Some of those standards call for

11 provision of counsel at specific points in the criminal process—such as the American Bar

12 Association Standards for Providing Defense Services (“Counsel should be provided to the

13 accused as soon as feasible and, in any event, after custody begins, at appearance before a

14 committed magistrate, or when formal charges are filed, whichever occurs earliest.”), the

15 Washington State Bar Association Performance Guidelines for Criminal Defense Representation

16 (“If the client is in custody, contact should be within 24 hours of appointment and shall be within

17 no more than 48 hours unless there is an unavoidable extenuating circumstance.”), a 1976 report

18 of a commission of the National Legal Aid and Defender Association (calling for representation as

19 soon as “[t]he person is arrested or detained,” or when the person reasonably believes criminal

20 process will commence), and the National Advisory Commission on Criminal Justice Standards

21 and Goals (“Public representation should be made available . . . beginning at the time the

22 individual either is arrested or is requested to participate in an investigation that has focused upon

23 him as a likely suspect.”)—while others speak more generally about the importance of prompt

24 representation. See id.

25

Boruchowitz lists the following potential consequences of delay in appointing counsel for

26 in-custody defendants: (1) defendants could suffer injury, illness, or death in jail while awaiting a

27 second court appearance; (2) the mental condition of mentally ill defendants could deteriorate,

28 which appointment of counsel can help to mitigate due to not only the potential for obtaining 21

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1 release, but also the possibility of arranging for treatment in jail; (3) defendants could lose

2 employment, housing, child custody, or medical benefits; (4) a delayed investigation can result in

3 loss of evidence, including witness recollections; (5) defendants might not be able to bring a

4 petition for habeas corpus to challenge unlawful confinement; (6) for defendants who can easily be

5 shown to be innocent, delay in appointing counsel can result in delay making that innocence

6 known and having charges dismissed; (7) juvenile defendants can face “additional challenges” due

7 to vulnerability to peer pressure; (8) delays in obtaining discovery can cause delays in all phases of

8 the prosecution; (9) prosecutors might set limits on plea bargain offers, and delays in appointing

9 counsel can further limit the amount of time counsel has to discuss an offer with the defendant;

10 and (10) failure to have counsel promptly available while a defendant is in custody can lead to

11 mistrust between the attorney and client once an attorney is appointed. Id. at 5–8 ¶¶ 15.1–15.12;

12 see also id. at 12–15 ¶¶ 37–48 (elaborating on some of those categories of potential

13 consequences). Boruchowitz notes a California Penal Code statute permitting any attorney to visit

14 a prisoner upon the prisoner’s request, and asserts that the County’s Public Defender’s Office

15 should have sent an attorney to visit each defendant after the court referred the defendant to that

16 office. Id. at 8 ¶ 15.13.

17

In a section titled “Three Days in Jail Can Harm a Client,” Boruchowitz states that he

18 “agree[s] with an experienced public defender who wrote” that “‘three days in jail can be life

19 destroying’” due to potential effects on medication, employment, and child custody or care. Id. at

20 8 ¶ 16. Boruchowitz construes the 1984 letter discussed above as demonstrating obliviousness to

21 client needs and also as evincing an ability to provide counsel in three days, which is less than the

22 delay that either Plaintiff faced in this case. Id. at 8 ¶¶ 17–18.

23

Boruchowitz reviews various statements by Lipetzky and the Public Defender’s Office,

24 beginning with her 2010 comments to a county newspaper that she believed providing attorneys at

25 misdemeanor defendants’ first court appearances would protect their constitutional rights, and

26 extending through the development and assessment of the ACER program. Id. at 9–12 ¶¶ 23–35.

27 He concludes that these statements show that Lipetzky “has known for years that her office should

28 be providing counsel . . . at arraignment,” and that the successful implementation of the ACER 22

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1 program shows that the County could and should have put such a policy in place sooner. Id. at 9–

2 12 ¶¶ 22, 27, 33, 36.

3

With respect to California Government Code section 27706, Boruchowitz discusses the

4 language of the statute and several decisions by California courts, as well as a decision by the

5 highest court of Maryland interpreting what Boruchowitz characterizes as a similar statute. Id. at

6 15–17 ¶¶ 50–55. He concludes that the period between Plaintiffs’ first and second court

7 appearances was itself a “stage of the proceedings” within the meaning of section 27706, and that

8 to effectively fulfill the requirements of the statute, a public defender “should begin representation

9 as soon as possible, and not wait for five to thirteen days to meet the client at a second

10 appearance.” Id. at 16 ¶ 51. Boruchowitz testified that his “process for determining whether or

11 not there was a violation of” section 27706 was “that [he] read the statute, and then [he] read cases

12 discussing the statute.” Martin Opp’n Decl. Ex. 12 (Boruchowitz Dep.) at 45:21–25.

13

Boruchowitz testified at his deposition that a public defender “might get some hints of” the

14 specific needs and risks of a client “in highly publicized cases,” but that a defender “need[s] to see

15 the client as soon as possible to assess all those factors effectively.” Id. at 67:25–68:15. He

16 testified that, in his opinion, it would not have been reasonable for Plaintiffs’ counsel (who in

17 addition to representing them here, also was appointed to represent them in their criminal cases)

18 “to delay interviewing those clients for five to thirteen days or longer.” Id. at 69:16–20.

19 Boruchowitz also testified that he considered the issue of whether the County failed to provide

20 counsel in a reasonable period of time to be “a Cronic problem,” referring to the Supreme Court’s

21 decision in United States v. Cronic. Id. at 14:21–15:23.

22

Asked by defense counsel how much time is required to prepare for an arraignment,

23 Boruchowitz testified that if appointed in advance, a lawyer “should spend a good hour meeting

24 with the client before you do anything,” and if “appointed right there in the courtroom, you try to

25 take as much time as the judge will give you.” Id. at 28:7–16. Boruchowitz also acknowledged

26 that there “are still states that do not have representation of counsel at the initial hearing,” that he

27 has “observed a number of states that do not provide counsel at the initial appearance,” and that

28 there have been “instances where counsel was not appointed for months sometimes after the initial 23

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1 appearance.” Id. at 20:19–21:7, 34:2–10. Boruchowitz did not know whether there was a

2 “consistent practice” as to that issue in California. Id. at 41:2–20. As a matter of “personal

3 belief,” however, Boruchowitz believes “that counsel should be there from the very beginning,”

4 “even though we don’t have federal case law yet on when the appearance of counsel is required”

5 and “even though the U.S. Supreme Court has not yet held it.” Id. at 35:8–16.

6

A U.S. Department of Justice report discussed during Boruchowitz’s deposition identifies

7 Arkansas, Delaware, Iowa, Montana, New Hampshire, New Jersey, South Carolina, Virginia as

8 states that in fiscal year 2013 lacked guidelines calling for attorneys to be present at bail hearings

9 and arraignments, although many other states had such guidelines. Baker Reply Decl. (dkt. 141)

10 Ex. B at 25, App’x Tbl. 3. States were also split as to whether they had guidelines calling for

11 appointment of interim counsel within one day, and as to whether they had guidelines for

12 appointment of permanent counsel within three days. Id. The table summarizing various states’ 13 guidelines does not include all fifty states, and California is among the states omitted.10 See id.

14 Boruchowitz testified that he was not aware of standards specific to California requiring

15 representation at initial appearances, although he believed such representation was required by

16 section 27706 “because it’s a stage,” and he identified several provisions of California’s

17 guidelines for indigent defense that more generally call for prompt and zealous representation.

18 Martin Opp’n Decl. Ex. 12 (Boruchowitz Dep.) at 59:15–61:15.

19

b. Henry Coker

20

The County retained Henry Coker as an expert witness. Coker is an attorney who worked

21 for the San Diego County Public Defender’s Office from 1989 until his retirement in 2017,

22 including serving as the public defender (i.e., the head of the department) from 2009 through

23 2017. Martin Decl. Ex. 3 at 122 ¶ 1; see also id. at 134–36 (Coker’s resume). Like Boruchowitz,

24 he was asked in this case to consider whether the County’s former practice of “not providing

25

26 10 The report appears to be limited to states that had “state-administered” indigent defense services

27

(as well as the District of Columbia) as opposed to states with services administered at a local level. See Baker Reply Decl. Ex. B at 1. The report, prepared by Suzanne M. Strong, Ph.D., of

28

the Bureau of Justice Statistics, is titled “State-Administered Indigent Defense Systems, 2013.” It was published in November of 2016 and revised May 3, 2017. See id.

24

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1 public defender attorney staffing at the initial appearance of an in-custody criminal defendant in

2 state court, which might have resulted in a delay in the provision of appointed counsel to the

3 defendant detainees for a period between two days to thirteen days complied with the ‘reasonable

4 time’ requirements for the provision of counsel articulated in Rothgery,” as well as whether

5 Lipetzky violated section 27706. Id. at 122–23 ¶ 2. He concluded based on his experience and

6 review of documents and applicable law that “the timing of the actual provision of appointed

7 counsel in Contra Costa County complied with” both Rothgery and section 27706. Id. at 123

8 ¶¶ 3–4.

9

According to Coker, although “[l]ocal jurisdictions may choose to provide stronger

10 protections, and organizations such as the American Bar Association and the National Legal Aid

11 and Defender Association may recommend even higher standards . . . those higher standards are

12 not relevant to” determining what the Sixth Amendment requires. Id. at 123 ¶ 6.

13

Coker states that “the evidence indicates” that under the old policy of bifurcated

14 arraignments, “counsel was typically ‘provided’ or ‘assigned’ to the case before the actual date of

15 the ‘counsel-and-plea’ hearing,” and the date on which counsel was actually assigned to the case is

16 more relevant than the date of that second court appearance. Id. at 124 ¶ 9.

17

He describes the timeline of Wade’s case as follows: Wade’s first appearance was on

18 Monday, November 14, 2011, the judge set the second appearance for Monday, November 21

19 (one week after the first appearance), the conflicts panel called Plaintiffs’ counsel Christopher

20 Martin the morning of Friday, November 18 (four days after the first appearance), and Martin

21 started work on the case that day and interviewed Wade the following day, Saturday, November

22 19. Id. at 124 ¶ 10; see also id. at 131 (summarizing the timeline in a table). According to Coker,

23 that timeline was reasonable, and allowed Martin sufficient time to prepare for the November 21

24 arraignment hearing as well as subsequent stages of the case. Id. Coker states that the seriousness 25 of the charges, as evidenced by judge setting bail at several million dollars,11 rendered “the bail

26

27 11 Coker’s report transposes the digits of Wade’s bail, stating that it was set at $3,450,000, as

28

opposed to the figure of $4,350,000 that appears in court documents in the record. Compare Martin Decl. Ex. 3 at 124 ¶ 10 with Martin Supp’l Decl. Ex. 5.

25

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1 issue . . . moot,” as would have been apparent to the judge and to any competent defense counsel.

2 Id. Coker notes that Wade was one of four defendants in a “complex” serial robbery case, and that

3 determining how to assign counsel to avoid conflicts of interest in such cases “can, in some cases,

4 take several days in light of the need for thorough conflicts checks and informed decisions about

5 which defendants should be represented by internal staff.” Id. at 125 ¶ 14. He states that the

6 “conflict of interest process took place” on November 17, 2011, one day before Martin was

7 assigned to the case, and concludes that “the fact that attorney Martin’s assignment to represent

8 Wade in this complex and serious five-defendant case occurred only four days after Wade’s initial

9 court appearance seems quite reasonable under all these circumstances and entirely consistent with

10 diligent efforts to arrange for counsel.” Id. at 126 ¶ 16.

11

As for Farrow’s case, Coker summarizes the timeline as follows: Farrow first appeared on

12 Friday, September 2, 2011, the judge set his second appearance for Thursday, September 15

13 (thirteen days later), a staff member from the Public Defender’s Office interviewed Farrow on

14 Tuesday, September 6 (four calendar days after the first appearance, and the next business day due

15 to the Labor Day holiday weekend), the conflicts panel called Martin to assign him to the case at

16 1:57 PM on Wednesday, September 14 (twelve days after the first appearance), and Martin first

17 met with Farrow on Thursday, September 15 (the day of the second appearance, thirteen days after

18 the first appearance). Id. at 124 ¶ 11, 127 ¶ 20, 132 (summarizing the timeline in a table). Like in

19 Wade’s case, Coker states that the court and competent defense counsel would have known that

20 “the bail review issue was moot,” in this case because “Farrow was a twice-convicted felon with a

21 ‘no-bail’ parole hold.” Id. at 124 ¶ 11. According to Coker, the staff interview on September 6

22 “included questions about potential bail issues and the status of [Farrow’s] case,” and “would have

23 identified, but did not, any matter in Farrow’s criminal case requiring immediate attention.” Id. at

24 127 ¶ 20. Coker states that although Martin did not meet with Farrow until the date of his second

25 appearance on September 15, he could have interviewed him the afternoon or evening of

26 September 14, the day he was assigned the case. Id. at 124 ¶ 11.

27

Coker also states that because the Public Defender’s Office did not have sufficient

28 resources to handle all of the cases referred to it at that particular time, “there needed to be a 26

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1 determination regarding the volume of new cases coming into the Public Defender’s Office and

2 the Alternate Defenders Office at that time before a decision could be made to route [Farrow’s]

3 case to the Conflicts Panel Office for assignment to outside counsel.” Id. at 126–27 ¶ 17.

4 Farrow’s case was an appropriate candidate for reassignment to the conflicts panel if the Public

5 Defender’s Office did not have sufficient resources available because it was “the type of lower

6 level felony case that was very likely to settle without trial.” Id. at 126–27 ¶ 17. Coker speculates

7 that the Labor Day weekend, and perhaps a large volume of cases associated with “the end of

8 summer vacation[,] . . . parties, and the excessive consumption of alcohol” related to the holiday,

9 could have contributed to the Public Defender’s Office’s need to refer some cases to outside

10 counsel and to the timeline of Farrow’s case, but he states that he “cannot state for certain” the

11 reason for the volume of cases. Id. at 127 ¶ 18.

12

Coker also looks to what happened after each Plaintiff received counsel and appeared in

13 court a second time, and states that those fact patterns support the conclusion that Plaintiffs were

14 not prejudiced by the delay in appointing counsel and that receiving counsel earlier would not

15 have affected their cases. Id. at 127–28 ¶¶ 20–21. With respect to section 27706, Coker states

16 that the statute does not address how much time may elapse between a request of counsel and

17 provision of counsel, and that Lipetzky carried out her obligations to both Plaintiffs by assigning

18 them conflict counsel. Id. at 128–29 ¶¶ 22–23. He also asserts that the issue is moot in light of

19 the County’s commitment to provide counsel at all indigent felony defendants’ first appearances

20 under the ACER program that was implemented in the years since Plaintiffs’ arraignments. Id. at

21 129 ¶ 23. Finally, Coker responds to some of the points made in Boruchowitz’s report, primarily

22 by asserting that the standards and best practices that Boruchowitz invokes go beyond what is

23 required under the Sixth Amendment. Id at 129–30.

24

At his deposition, Coker testified that he “was not asked to look at the whole system,” but

25 instead “to take a microscopic look at two cases and render [his] opinion on that.” Martin Decl.

26 Ex. 3 (Coker Dep.) at 140, 56:5–7. He declined to offer an opinion on whether it is “reasonable to

27 delay representation for a period of five to 13 days or sometimes longer” in other cases, stating

28 that it would not be an informed opinion. Id. at 140–41, 56:19–57:3. He conceded that “as a 27

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1 matter of good practice [he] would hope that it wouldn’t take you two weeks to see the client, even

2 if you have that much time to appear in court,” but testified that the reasonableness of the delay

3 would depend on actual and potential harm caused by the delay. Id. at 142, 44:3–12. “[A]fter

4 looking at the facts of the two cases and looking at [Martin’s] appointment and what [he] did and

5 when [he] did it, [Coker] determined that it was reasonable.” Id. at 143, 45:6–8. Coker also

6 conceded that a two-week delay in meeting with counsel could cause prejudice or be unreasonable

7 in some cases, such as the facts of the Rothgery case where the plaintiff had been held

8 unnecessarily, or where a defendant relied on videotape evidence that was overwritten in the

9 intervening period. Id. at 143, 45:9–44; id. at 144, 60:11–15. Coker testified generally to the

10 importance of conducting a prompt investigation and that “[i]t is a good practice to interview any

11 client that you’re going to represent at the first opportunity you have.” Id. at 149–53, 27:19–

12 31:10.

13

Coker testified that “conflicts checks are rather tedious things to do,” and that he had

14 experienced cases as a chief deputy public defender “where it took us a week to get it all figured

15 out,” although he did not recall a case where a conflicts check took two weeks, and even in those

16 cases his office either appeared for or arranged for private attorneys to appear for each defendant

17 at the first court appearance. Id. at 147–48, 71:10–72:2.

18

Coker was not aware “off the top of [his] head” of any other county in California that used

19 the bifurcated arraignment procedure previously employed by Contra Costa County. Id. at 155,

20 43:5–8.

21

C. The Parties’ Present Arguments

22

The parties’ arguments in their briefs on the motions for summary judgment are

23 summarized below. Arguments regarding the County’s motion to exclude Boruchowitz’s

24 testimony (dkt. 126) are addressed in context in the Court’s analysis of that issue.

25

1. Plaintiffs’ Motion for Summary Judgment

26

Plaintiffs seek summary judgment granting equitable relief and nominal damages on their

27 individual claims, or alternatively, summary adjudication of issues including whether they were

28 deprived of their Sixth Amendment right to counsel and whether the County had a policy of 28

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1 deliberate indifference to Plaintiffs’ rights. Pls.’ Mot. for Summ. J. (“Pls.’ MSJ,” dkt. 125) at 1–2.

2

Plaintiffs contend that to prevail on a Sixth Amendment claim based on the County’s

3 policy of inaction, they must show: (1) that they were deprived of a constitutional right; (2) that

4 the County had a policy; (3) that the policy “amounts to deliberate indifference to” the right;

5 (4) that the policy was the “moving force behind” the violation of that right. Id. at 3 (quoting

6 Oviatt ex rel. Waugh v. Pearce, 954 F.2d 1470, 1474 (9th Cir. 1992)). They argue that

7 Strickland’s “individualized analysis requirement” is not the appropriate framework through

8 which to view a case “seeking prospective, systemic reform.” Id. at 18 (citing Church v. Missouri,

9 268 F. Supp. 3d 992, 2017 WL 3383301 (W.D. Mo. July 24, 2017)). Plaintiffs cite decisions from

10 various state courts eschewing individualized analysis in cases based on systemic failure to

11 provide appointed counsel, as well as the Supreme Court’s decision in United States v. Wade, 388

12 U.S. 218 (1967), which considered the general risks to a defendant facing a post-indictment lineup

13 without counsel, rather than the particular circumstances of the defendant in that case. Pls’ MSJ at

14 18–19. They argue that the Court should look to “the grave potential for prejudice inherent in the

15 written Policy of agreeing to withhold representation till any date the court chooses so long as the

16 date is at least three court days out,” and that the circumstances here amount to a systemic

17 violation of indigent criminal defendants’ right to appointed counsel because the County’s public

18 defender “set no outside limit on the length of the delay, did not pay any attention to the length of

19 the delay, delegated responsibility for the length of the delay in representation to the court, and

20 kept no records from which the outside [i.e., maximum] length of the delay could be determined.”

21 Id. at 19.

22

Plaintiffs argue that the County cannot rely on lack of funding as a basis for delay, id. at 20

23 (citing Gideon v. Wainwright, 372 U.S. 335 (1963)), but that even if the Court were to consider

24 funding as a factor in assessing reasonableness, the evidence shows that providing counsel at

25 indigent defendants’ first court appearance actually saved the County money after it changed its

26 policy to do so in most cases. Id. at 21. They also contend that the County cannot escape

27 responsibility by arguing that the state courts prevented it from providing counsel at defendants’

28 first appearance because the evidence shows that only one courthouse actually prohibits that 29

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1 practice in some circumstances (the Richmond courthouse, in misdemeanor cases), and because

2 the 1984 letter indicates that the public defender was, at least at that time, prepared to represent

3 defendants three days after their first appearances, as opposed to the longer delays that defendants

4 (including Plaintiffs here) experienced in more recent years. Id. Perhaps to some extent

5 contradicting their contention that the courts were not responsible for the delays, Plaintiffs also

6 argue that “eligibility and conflicts checks were never a factor in determining the delay in

7 providing counsel” because the Public Defender’s Office “had nothing to do with setting the

8 duration of time between the first and second arraignment proceedings.” Id. at 22.

9

Plaintiffs invoke Boruchowitz’s report as “document[ing] 55 reasons why [the County’s]

10 Policy was unreasonable under the totality of the circumstances,” although they do not identify or

11 discuss any of those reasons in their motion. Id. They argue that the County “has not contradicted

12 a single study or standard referenced by Professor Boruchowitz, or refuted a single factor that he

13 considered.” Id. Plaintiffs also rely on a 2012 report by Lipetzky stating that the County had the

14 highest rate of pretrial detainees (as a percentage of the total jail population) in the state, and on

15 the fact that County’s expert witness was not aware of other California counties that similarly

16 failed to provide counsel at a defendant’s first court appearance. Id. at 22–23. According to

17 Plaintiffs, the lack of justification for the earlier “Policy” of failing to provide counsel at first

18 appearances, combined with the potential for prejudice that Boruchowitz identified, establishes

19 that the failure to provide counsel was unreasonable. Id. at 23.

20

Plaintiffs also argue that for purposes of section 27706, the burden is on the County to

21 provide justification for a delay in providing counsel. Id. They contend that the County has failed

22 to provide any justification, and that the rationale of the decision of the Maryland Court of

23 Appeals (that state’s highest court) applying Maryland’s then-existing public defender law in 24 DeWolfe v. Richmond, 434 Md. 403 (2012),12 applies equally to section 27706 in California. Pls’

25

26

12 On reconsideration, the Maryland court reached the same conclusion that counsel was required at a defendant’s first appearance, but based that conclusion on the Maryland Declaration of Rights

27

(a component of the state’s constitution) rather than on the public defender statute, which the state legislature had amended in the intervening period to specifically exclude any requirement for

28

representation at the type of hearing at issue in the case. DeWolfe v. Richmond, 434 Md. 444, 454–55, 464 (2013).

30

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1 MSJ at 23–25.

2

In support of their request for an injunction, Plaintiffs argue that a constitutional violation

3 with potential to recur satisfies the “irreparable injury” and “inadequacy of legal remedies”

4 requirements, and that although Plaintiffs were ultimately provided with counsel and their criminal

5 prosecutions have since ended, they have standing to seek prospective relief under the “relation

6 back” doctrine discussed by the Supreme Court in County of Riverside v. McLaughlin, 500 U.S.

7 44, 51–52 (1991), and under the Ninth Circuit’s framework for class actions challenging policies

8 or officially sanctioned patterns of unlawful behavior as discussed in Armstrong v. Davis, 275

9 F.3d 849, 860 (9th Cir. 2001), abrogated on other grounds as stated in Davidson v. Kimberly

10 Clark Corp., 873 F.3d 1103, 1113 (9th Cir. 2017). Pls’ MSJ at 26–27. Plaintiffs contend that the

11 subsequent implementation of the ACER program does not moot their claims because “it is

12 reasonable to expect that the practice of denying representation to indigent criminal defendants

13 will recur without the injunction sought,” and because the County has not taken action to remedy

14 the Richmond courthouse’s practice of prohibiting public defender representation at first

15 appearances of out-of-custody misdemeanor defendants. Id. at 28–29. Plaintiffs also argue that

16 they are entitled to nominal damages and declaratory judgment. Id at 29–34.

17

2. The County’s Opposition to Plaintiffs’ Motion for Summary Judgment

18

The County argues that Plaintiffs’ motion should be denied because it fails to address the

19 circumstances of Plaintiffs’ individual experiences during their criminal prosecutions. Def.’s

20 Opp’n (dkt. 137) at 1, 12–13. It contends that it “did not have a policy of ‘withholding

21 representation’ for a period of days,” but rather did not provide counsel at first appearances

22 because the Public Defender’s Office did not have a sufficient number of attorneys to staff those

23 appearances. Id. at 13. Although the County does not dispute that “attachment occurred at the

24 initial appearance,” it argues that it is “undisputed that [Plaintiffs] had counsel present at every

25 critical stage,” and that the delay in providing counsel was reasonable because Plaintiffs have not

26 presented evidence that it “caused either of them any actual prejudice or posed any grave potential

27 for prejudice.” Id. at 14.

28

Despite this Court’s previous determination that delayed appointment of counsel under

31

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1 Rothgery is its own Sixth Amendment violation distinct from the Strickland or Cronic tests for

2 ineffective assistance of counsel, see Apr. 2017 Order at 25, the County continues to argue that

3 Rothgery “should be read in conjunction with” those cases. Def.’s Opp’n at 15. Even if the Court

4 disagrees with that approach, however, the County contends that “a critical or necessary factor in

5 establishing any violation of the right to counsel is the impact, or potential impact, on Plaintiffs’

6 criminal proceedings.” Id. at 15–16. The County notes that the Rothgery decision discussed

7 appointment of counsel within a reasonable time to allow for representation at “critical stages”

8 before trial, and that Justice Alito’s concurrence in that case construed the Sixth Amendment right

9 to counsel as protecting only the effectiveness of assistance at trial, not “‘other objectives that may

10 be important to the accused.’” Id. at 15, 18 (citing Rothgery, 554 U.S. at 212, and quoting id. at

11 216 (Alito, J., concurring)).

12

Turning to the facts of this case, the County argues that Plaintiffs have not presented

13 evidence to support the forms of actual prejudice alleged in their complaint, specifically that the

14 delay in appointing counsel affected Farrow’s ability to locate witnesses relevant to his case and

15 Wade’s ability to gather statements from a witness while her memory of his interrogation was

16 fresh regarding Miranda warnings and whether he was wearing a sweatshirt that tied him to the

17 crimes. Id. at 19–21. It contends that the possible forms of prejudice identified by Boruchowitz

18 “do not apply to Plaintiffs themselves,” with the exception of Boruchowitz’s opinion that Wade

19 faced potential prejudice in obtaining witness statements while the witness’s testimony was fresh,

20 which the County argues was not based on review of the actual facts of Wade’s case. Id. at 22–23.

21 The County contends that Boruchowitz’s reliance on professional standards and guidelines is

22 unavailing because he conceded that there is not a national consensus on this issue and that some

23 states do not provide counsel at initial appearances. Id. at 23–24.

24

The County also argues that any statements from Lipetzky suggesting that the previous

25 practice of withholding counsel at first appearances was harmful or unreasonable do not bind the

26 County because a public defender’s interests are often adverse to a county’s interests in cases like

27 this one, and that the 1984 letter discussing the Public Defender’s Office ability at that time to

28 provide counsel for Richmond cases within three days of the first appearance does not establish 32

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1 that longer delays are unreasonable under Rothgery because it does not take into account the effect

2 of such a delay on the proceedings. Id. at 22–23. The County points to the “undisputed facts” that

3 the state court (not the public defender) set the length of time between appearances, that the Public

4 Defender’s Office “took steps to ascertain whether there were any urgent issues needing to be

5 addressed,” and that deputy public defenders or appointed conflicts counsel could and sometimes

6 did begin working on a case before the second court appearance. Id. at 23; see also id. at 26

7 (arguing that the court’s role in setting the second appearance negates any causal link between the

8 County and the alleged violations). The County also argues that, contrary to suggestions made in

9 Plaintiffs’ arguments and their counsel’s questions during depositions, Plaintiffs cannot analogize

10 a delay in providing counsel to a decision by an attorney already assigned to a case to delay the

11 initial interview of a client, because the latter circumstances are evaluated under the Strickland

12 standard and Plaintiffs have not satisfied Strickland by showing prejudice here. Id. at 24 (citing

13 Dick v. Scroggy, 882 F.2d 192 (6th Cir. 1989)). The County contends that Plaintiffs cannot show

14 deliberate indifference to their rights because no decisions now or at the time of the violation

15 clearly demonstrated that the delays at issue were unconstitutional and because Lipetzky never

16 received complaints about delays in referrals to the conflicts panel, among other reasons. Id. at

17 24–26.

18

The County argues that Farrow is estopped from bringing a claim here because his lawyer

19 objected to the delay in appointing counsel at arraignment, the state court judge did not find

20 Farrow’s rights to be violated and overruled the objection, and Farrow waived his appellate rights

21 as part of his plea agreement. Id. at 26–28.

22

As for section 27706, the County argues that Plaintiffs cannot support a claim because they

23 did not make a “direct request for representation” to the Public Defender’s Office and the state

24 court did not formally appoint the office to represent them. Id. at 28. The County contends that

25 the Maryland case on which Plaintiffs rely is distinguishable because the Maryland statute did not

26 condition the public defender’s obligations on a request for or appointment of counsel. Id. at 29.

27 The County also argues that the Public Defender’s Office acted responsibly in light of the ethical

28 conflicts preventing it from directly representing either Farrow (due to staffing constraints) or 33

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1 Wade (due to a conflict of interest). Id. at 29. The County also argues that Plaintiffs’ claims for

2 declaratory and injunctive relief are moot, and that no exception to the normal doctrines of

3 mootness and standing applies here. Id. at 30–33. Finally, the County contends that certain

4 evidence on which Plaintiffs rely is inadmissible, including Boruchowitz’s opinions for the

5 reasons stated in the County’s separate motion to exclude, certain parts of Coker’s testimony that

6 the County contends were outside the scope of his expert witness designation, statements by

7 Lipetzky that the County argues are hearsay and improper opinion testimony by a fact witness,

8 and the 1984 letter regarding representation at the Richmond courthouse, which the County argues

9 is irrelevant or unduly prejudicial under Rule 403 of the Federal Rules of Evidence. Id. at 33–35.

10

3. Plaintiffs’ Reply in Support of Summary Judgment

11

Plaintiffs again argue in their reply that their claims in this “case seeking systemic reform”

12 should “be evaluated in terms of how the Policy [of not providing representation at first

13 appearances] poses a grave potential for prejudice to all detainees,” not based on the facts of

14 Plaintiffs’ own cases with the benefit of hindsight. Pls.’ Reply (dkt. 142) at 7–9. They argue that

15 the evidence shows that the County had a policy of withholding representation for “a period that

16 was typically between 5 and 13 days, but was sometimes longer,” and that Farrow and Wade

17 “suffered a constitutional tort” as a result of being subjected to the policy if the policy was

18 unconstitutional. Id. at 9–10. Plaintiffs therefore argue that Boruchowitz’s conclusions regarding

19 the policy as a whole are sufficient for success on their Sixth Amendment claim. Id. at 10.

20 Plaintiffs argue that the County was on notice of the violation based on a criminal case where the

21 issue was raised in 2011 and Lipetzky’s own statements. Id. at 10–11. Plaintiffs contend that the

22 County, not the state court, was responsible for the delay in appointing counsel because “the

23 Public Defender authored the Policy in 1984” and has ratified that policy through words and

24 conduct in the years since then. Id. at 11. Plaintiffs also dispute the County’s arguments that the

25 requests for declaratory and injunctive relief are moot. Id. at 11–14.

26

As for the County’s evidentiary objections, Plaintiffs argue that Coker’s testimony

27 regarding examples of prejudicial conduct falls within the scope of appropriate cross examination

28 and that his lack of awareness of other counties with bifurcated arraignments is an issue of fact, 34

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1 not expert opinion. Id. at 14–15. They contend that Lipetzky’s statements in various reports and

2 publications are not hearsay, or meet the tests for hearsay exceptions, because they are admissions

3 of a party’s agent, fall within the public records exception, or are relevant to show her state of

4 mind, and also that they do not constitute improper expert opinion. Id. at 15–18. Plaintiffs argue

5 that the 1984 letter is relevant to the origin and nature of the County’s policy regarding indigent

6 representation. Id. at 18–19. Plaintiffs address Boruchowitz’s testimony separately in their

7 opposition to the motion to exclude. See id. at 14.

8

Plaintiffs conclude by arguing that this Court should adopt a standard that, except in

9 emergency circumstances, counsel should be appointed within forty-eight hours of arrest and

10 provided at the first court appearance, mirroring the requirement for determinations of probable

11 cause established by the Supreme Court’s decision in McLaughlin, 500 U.S. 44. Reply at 19–20.

12

4. The County’s Motion for Summary Judgment

13

The County argues in its motion for summary judgment that the “‘reasonableness’

14 determination focuses on the consequences, if any, of the delay on the criminal defendant’s ability

15 to defend the charges against her/him.” Def.’s Mot. for Summ. J. (“Def.’s MSJ,” dkt. 128) at 18.

16 It contends that the Sixth Amendment only protects the right to a fair trial, and that the Court

17 should reconsider its previous order holding that an unreasonable delay in providing counsel is

18 distinct from the Strickland and Cronic framework for evaluating ineffective assistance of counsel.

19 Id. at 18–20. According to the County, Cronic’s presumption of prejudice standard is consistent

20 with the Ninth Circuit’s instruction to this Court to consider risk of prejudice, as opposed to only

21 actual prejudice, on remand. Id. at 18–19. The County argues that since, in its view, grave

22 potential for prejudice falls within the Cronic framework, such a claim would be barred by Heck,

23 and “Plaintiffs are limited to [showing] an actual prejudice to their individual cases, which they 24 cannot establish.” Id. at 21.13 But even if the Court considers potential for prejudice, the County

25

26 13 The County does not address the fact that actual prejudice would presumably satisfy

27

Strickland’s test for reversal of Plaintiffs’ convictions, and thus would also presumably be barred by Heck. Because the Court declines to reconsider its previous determination that unreasonable

28

delay in appointing counsel need not be considered in the framework of Strickland and Cronic, however, there is no reason to wade back into the Heck analysis of the previous order.

35

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1 contends that there is no evidence on which to find such potential. Id.

2

As discussed above in summarizing the County’s opposition brief, the County argues that

3 the facts here do not show actual prejudice to either Farrow or Wade as a result of delay in

4 providing counsel. Id. at 22–25. The County primarily analyzes Plaintiffs’ cases with the benefit

5 of hindsight, arguing that Martin’s lack of urgency in engaging an investigator to pursue

6 potentially relevant testimony demonstrates that appointing counsel sooner would not have

7 changed the outcome, and that at least in Wade’s case the testimony did not turn out to be material

8 because there was an audio recording of Wade’s interrogation. Id. The County also argues that

9 Plaintiffs cannot show deliberate indifference by the County, that the delay in appointing counsel

10 was caused by the state court, and that Farrow is collaterally estopped from asserting a Sixth

11 Amendment violation. Id. at 25–28. The County contends that the Public Defender’s Office’s

12 policy of interviewing defendants promptly after referral to identify urgent issues shows that

13 prejudice was not foreseeable from the delay in appointing counsel, and asserts without citation to

14 evidence that “generally speaking, a week or even two weeks is not likely to result in destruction

15 of critical evidence.” Id. at 27.

16

The County asks the Court to dismiss the section 27706 claim for lack of subject matter

17 jurisdiction if summary judgment is granted for the County on the Sixth Amendment claim, and

18 argues that even if the Court retains jurisdiction over the state law claim, the County is entitled to

19 summary judgment because the Public Defender’s Office did not receive a direct request for

20 representation from Plaintiffs and was not appointed to represent them by the state court, and

21 because the Public Defender’s Office could not represent them due to ethical conflicts and

22 properly referred their cases to the conflicts panel. Id. at 28–31. The County contends that

23 Plaintiffs’ claims for declaratory and injunctive relief are moot. Id. at 31–35.

24

5. Plaintiffs’ Opposition to the County’s Motion for Summary Judgment

25

Plaintiffs argue that the County’s “argument that actual prejudice is required is a

26 nonstarter, as the County bizarrely insists upon a legal standard that both this Court and the Ninth

27 Circuit Court of Appeals have explicitly rejected.” Pls.’ Opp’n to Def.’s Mot. for Summ. J. (“Pls.’

28 Opp’n to MSJ,” dkt. 135) at 6. Plaintiffs also argue that it is not appropriate to focus on the facts 36

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1 of their case for assessing potential prejudice, and instead contend that the Court should look

2 “whether a Policy of arbitrarily delaying representation to all indigent jailed criminal defendants

3 for 5 to 13 days, and sometimes longer – without any reference to the facts of their underlying

4 criminal cases – poses a grave potential for prejudice.” Id. Plaintiffs argue that the facts of their

5 cases do, however, support a conclusion that delay caused potential for prejudice—in Wade’s

6 case, because the prosecution was able to add charges without having to seek leave of the court,

7 and in Farrow’s case, because the need for conflicts counsel was caused by the County’s failure to

8 provide sufficient funding to the Public Defender’s Office and “myriad potentials for prejudice”

9 could arise from a nearly two week delay that “cannot properly be evaluated in hindsight.” Id. at

10 7–8.

11

Plaintiffs argue that the evidence supports a finding of deliberate indifference, and that the

12 County had a written policy of delaying representation, as memorialized in the 1984 letter, a 2010

13 statement by Lipetzky to a local newspaper describing the Public Defender’s Office’s practices,

14 memoranda from 2012 describing the then-current state of affairs in the context of proposals to

15 establish the ACER program, and statements on the Public Defender’s Office website. Id. at 9–10.

16 Plaintiffs also argue that a lack of sufficient resources to provide counsel at defendants’ first

17 appearances is not a valid reason for delay, but instead is itself a failure to meet the County’s

18 obligations under Gideon. Id. at 10. Plaintiffs argue that “California criminal procedure is

19 exacting” and assert, without citation to evidence so stating, that Contra Costa was the only county

20 in California that systematically denied representation to in-custody defendants at their first court 21 appearances. Id. at 12.14 Plaintiffs also argue that the County was on notice of “the problem” as a

22 result of arguments raised “in a motion and petition for writ of mandamus in a case to which it was

23 a party,” although Plaintiffs do not contend that the court in that case determined that the County’s

24 practices were improper. Id. at 13. Plaintiffs contend that Lipetzky’s testimony that some

25 defendants remained in jail longer because they did not receive representation and that some

26

27

14 Plaintiffs cite Coker’s testimony that he did not, “off the top of [his] head,” know of other jurisdictions in California that had such a policy. See Pls.’ Opp’n to MSJ at 12; Martin Decl. Ex. 3

28

(Coker Dep.) at 155, 43:5–7. That testimony does not show that no other jurisdiction had such a policy.

37

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1 defendants are now being released earlier under the ACER program demonstrates that defendants

2 who did not receive earlier representation suffered prejudice within the meaning of Strickland. Id.

3 at 14.

4

With respect to Lipetzky’s testimony that paralegals interviewed defendants after their first

5 court appearances to address “immediate concerns,” Plaintiffs argue that “there is absolute no

6 proof of a single case where the Public Defender did anything other than eligibility conflicts

7 checks during the . . . period between appearances,” and assert without citation to authority that

8 “the failure to provide proof where a party would logically provide it creates the inference that

9 such proof does not exist.” Id. at 13.

10

Plaintiffs contend that Farrow is not estopped from bringing a Sixth Amendment claim

11 because the Sixth Amendment claim was not actually litigated or necessary to the judgment in his

12 criminal case, and the issues are not the same. Id. at 14–17. Plaintiffs argue that the Strickland

13 and Cronic paradigms applicable in criminal cases, including Farrow’s case where Martin raised

14 the issue of delayed appointment, do not apply to this civil case. Id. at 17.

15

Plaintiffs concede that section 27706 does not require a public defender to represent a

16 defendant until that defendant requests that the public defender do so or at court appoints the

17 public defender to do so, but argue that where a defendant has told a judge that the defendant

18 would like appointed counsel and the judge referred that request to the public defender, the

19 defendant has effectively requested representation from the public defender within the meaning of

20 the statute. Id. at 18–19. Plaintiffs also argue that the County has not offered a sufficient reason

21 why the Public Defender’s Office did not have attorneys available to represent defendants at their

22 first appearances. Id. at 19.

23

Plaintiffs contend that their claims for prospective relief are not moot, in part because the

24 County still delays representation by bifurcating arraignment proceedings for defendants where

25 the Public Defender’s Office has clear conflicts of interest, in which cases arraignments are

26 continued by up to two days to resolve the conflict. Id. at 19–21. Plaintiffs also argue that the

27 new policy shows that delays of more than two days to resolve conflicts issues in their own cases

28 were unreasonable. Id. at 21. 38

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1

Plaintiffs conclude their opposition brief, as in their reply in support of their own motion,

2 with an analogy to the McLaughlin case and an argument that the same presumptive deadline of

3 forty-eight hours after a warrantless arrest to conduct a probable cause determination should apply

4 to appointment of counsel. Id. at 23–24.

5

6. The County’s Reply in Support of Summary Judgment

6

The County argues in its reply that the steps taken and facts discovered in Plaintiffs’

7 criminal cases after counsel was appointed demonstrate that the delay in providing counsel after

8 their first court appearances did not actually cause prejudice or a grave potential for prejudice.

9 Def.’s Reply in Support of Mot. for Summ. J. (“Def.’s Reply re MSJ,” dkt. 141) at 8–10. The

10 County contends that the Court should not consider “hypothetical injuries not present in

11 [Plaintiffs’] own cases,” and that regardless, adverse effects to a defendant’s pretrial liberty

12 interest are not cognizable as prejudice in a Sixth Amendment claim. Id. at 10–11. The County

13 argues that Plaintiffs also have not established that the potential injuries that they cite “are so

14 inherent and frequent in cases where there is no counsel at the initial hearing as to warrant the

15 presumption of prejudice,” in contrast to the dangers that the Supreme Court considered when it

16 recognized a right to counsel at post-indictment lineups in United States v. Wade, 388 U.S. 218

17 (1967). Def.’s Reply re MSJ at 11–12. The County further argues that counsel cannot be required

18 under the Sixth Amendment at a defendant’s first appearance because Rothgery explicitly permits

19 a reasonable period of time to appoint counsel after attachment of the right, and that there is no

20 national consensus on whether counsel must be provided at defendants’ first appearances, citing

21 the Department of Justice report surveying state standards. Id. at 12–13.

22

The County briefly contends that Plaintiffs have not shown a policy of deliberate

23 indifference, id. at 13–14, that the state court rather than the County was responsible for the length

24 of delay, id. at 14, and that Farrow is collaterally estopped from bringing a Sixth Amendment

25 claim, id. at 14–15. If the Court does not dismiss the section 27706 claim for lack of jurisdiction,

26 the County argues that it is entitled to summary judgment because a referral from the state court to

27 the Public Defender’s Office is not equivalent to a direct request from a defendant or appointment

28 by the court, and because the Public Defender’s Office acted reasonably in light of its ethical 39

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1 conflicts after the referrals. Id. at 15–16. The County also continues to argue that Plaintiffs’

2 claims for declaratory and injunctive relief are moot, and that no exception applies. Id. at 16–19.

3 III. ANALYSIS

4

A. Motion to Exclude Expert Testimony and Other Evidentiary Objections

5

Rule 702 of the Federal Rules of Evidence permits a party to offer testimony by a “witness

6 who is qualified as an expert by knowledge, skill, experience, training, or education.” Fed. R.

7 Evid. 702. This Rule embodies a “relaxation of the usual requirement of firsthand knowledge,”

8 Daubert v. Merrel Dow Pharm., 509 U.S. 579, 592 (1993), and requires that certain criteria be met

9 before expert testimony is admissible. The Rule sets forth four elements, allowing such testimony

10 only if:

11

(a) the expert’s scientific, technical, or other specialized knowledge

will help the trier of fact to understand the evidence or determine a

12

fact in issue;

13

(b) the testimony is based on sufficient facts or data;

14

(c) the testimony is the product of reliable principles and methods;

and

15

(d) the expert has reliably applied the principles and methods to the

16

facts of the case.

17 Fed. R. Evid. 702. These criteria can be distilled to two overarching considerations: “reliability

18 and relevance.” Ellis v. Costco Wholesale Corp., 657 F.3d 970, 982 (9th Cir. 2011). The inquiry

19 does not, however, “require a court to admit or exclude evidence based on its persuasiveness.” Id.

20

The reliability prong requires the court to “act as a ‘gatekeeper’ to exclude junk science,”

21 and grants the court “broad latitude not only in determining whether an expert’s testimony is

22 reliable, but also in deciding how to determine the testimony’s reliability.” Id. (citing Kumho Tire

23 Co. v. Carmichael, 526 U.S. 137, 145, 147–49, 152 (1999)). Evidence should be excluded as

24 unreliable if it “suffer[s] from serious methodological flaws.” Obrey v. Johnson, 400 F.3d 691,

25 696 (9th Cir. 2005).

26

The relevance prong looks to whether the evidence “fits” the issues to be decided:

27 “scientific validity for one purpose is not necessarily scientific validity for other, unrelated

28 purposes,” and “[e]xpert testimony which does not relate to any issue in the case is not relevant.” 40

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1 Daubert, 509 U.S. at 591. “Where an ‘expert report’ amounts to written advocacy . . . akin to a

2 supplemental brief, a motion to strike is appropriate because this evidence is not useful . . . .”

3 Williams v. Lockheed Martin Corp., No. 09CV1669 WQH (POR), 2011 WL 2200631, at *15

4 (S.D. Cal. June 2, 2011) (citation omitted; first ellipsis in original). Moreover, “an expert witness

5 cannot give an opinion as to her legal conclusion, i.e., an opinion on an ultimate issue of law[; . . .]

6 instructing the jury as to the applicable law is the distinct and exclusive province of the court.”

7 Hangarter v. Provident Life & Acc. Ins. Co., 373 F.3d 998, 1016 (9th Cir. 2004) (citations and

8 internal quotation marks omitted). An expert nevertheless may, in appropriate circumstances, rely

9 on his understanding of the law and refer to the law in expressing an opinion regarding

10 professional norms. Id. at 1016–17.

11

The County moves to exclude the opinions of Plaintiffs’ expert Robert Boruchowitz,

12 arguing that his testimony only “fits” the case if it corresponds to harms that actually befell

13 Farrow and Wade, and faulting Boruchowitz for failing to review evidence regarding the particular

14 prosecutions at issue in this case. Because hindsight is generally inappropriate in assessing

15 potential for prejudice, the Court agrees with Plaintiffs that Boruchowitz had no need to review

16 evidence pertaining to proceedings after Plaintiffs’ second court appearances, such as the timing of

17 work by investigator Ringgenberg and evidence later available or unavailable. On the other hand,

18 to the extent that the Court’s analysis focuses on the particular circumstances of Wade and

19 Farrow’s prosecutions, Boruchowitz’s failure to discuss those circumstances in any detail renders

20 his opinions unsuited for that analysis.

21

To the extent that the Court looks more generally to whether the County’s former policy

22 violated the Sixth Amendment rights of criminal defendants as a class, Boruchowitz’s expertise

23 and experience qualifies him to identify risks associated with delayed appointment of counsel, and

24 his statements identifying such risks are admissible expert opinion. The County’s motion is

25 DENIED as to those portions of Boruchowitz’s report. But while those ill effects support a

26 conclusion that delay is bad, it is less clear whether they can support a conclusion that a particular

27 period of delay is or is not reasonable. Boruchowitz’s ultimate conclusion—that “it is not

28 reasonable to wait to appoint counsel for five to thirteen days after the first court appearance”—is 41

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1 not based on any discernable framework for determining reasonableness. See Boruchowitz Report

2 ¶ 49. Along the same lines, Boruchowitz’s “opinion that it is critical to have counsel begin work

3 on the case of an accused person as soon as possible,” id., only raises the question of when

4 appointment is “possible.” Taken literally, and devoting unlimited resources, it would likely be

5 possible to appoint counsel for every defendant the moment that the right to counsel attached, but

6 as discussed below, a rule requiring appointment at that time would be inconsistent with the

7 “reasonable time after attachment” standard applicable here. If Boruchowitz’s opinion is read

8 more liberally as requiring appointment “as soon as [reasonably] possible,” see id., it only begs the

9 original question of what delay is reasonable. The County’s motion to exclude these opinions on

10 the ultimate question at issue is GRANTED.

11

Boruchowitz’s opinions regarding section 27706 consist solely of legal analysis “akin to a

12 supplemental brief” and thus do not constitute admissible opinion evidence. See Williams, 2011

13 WL 2200631, at *15; see also Hangarter, 373 F.3d at 1016. The County’s motion is GRANTED

14 to exclude those opinions as evidence. Because, as discussed below, the Court declines to exercise

15 jurisdiction over Plaintiffs’ claim under that statute, the Court need not decide whether it would be

16 more appropriate to consider Boruchowitz’s analysis of section 27706 as supplemental argument

17 or to disregard it entirely.

18

The Court also excludes and disregards the portions of Boruchowitz’s report addressing

19 case law interpreting the Sixth Amendment. See, e.g., Boruchowitz Report ¶¶ 46–48 (block-

20 quoting case law from the United States Supreme Court and an 1883 decision of a New York state

21 court). If Plaintiffs wanted Boruchowitz to present legal arguments, they could have retained him

22 as counsel rather than as an expert, or requested that he file an amicus brief on behalf of himself or

23 one of the indigent defense organizations with which he works. Such arguments fall outside of

24 Boruchowitz’s role as an expert witness.

25

This order assumes for the sake of argument that all of the other evidence to which the

26 County objects is admissible. The Court agrees with the County, however, that statements by

27 Lipetzky do not constitute binding judicial admissions on behalf of the County, nor are her or any

28 other witness’s personal opinions as to what the Sixth Amendment requires in this context relevant 42

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1 to the Court’s interpretation of the law.

2

B. Legal Standard for Summary Judgment Under Rule 56

3

Summary judgment on a claim or defense is appropriate “if the movant shows that there is

4 no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of

5 law.” Fed. R. Civ. P. 56(a). In order to prevail, a party moving for summary judgment must show

6 the absence of a genuine issue of material fact with respect to an essential element of the non-

7 moving party’s claim, or to a defense on which the non-moving party will bear the burden of

8 persuasion at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

9

Once the movant has made this showing, the burden then shifts to the party opposing

10 summary judgment to designate “‘specific facts showing there is a genuine issue for trial.’” Id.

11 (citation omitted); see also Fed. R. Civ. P. 56(c)(1) (“A party asserting that a fact . . . is genuinely

12 disputed must support the assertion by . . . citing to particular parts of materials in the record

13 . . . .”). “[T]he inquiry involved in a ruling on a motion for summary judgment . . . implicates the

14 substantive evidentiary standard of proof that would apply at the trial on the merits.” Anderson v.

15 Liberty Lobby Inc., 477 U.S. 242, 252 (1986). The non-moving party has the burden of

16 identifying, with reasonable particularity, the evidence that precludes summary judgment. Keenan

17 v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996). Thus, it is not the task of the court to scour the

18 record in search of a genuine issue of triable fact. Id.; see Carmen v. S.F. Unified Sch. Dist., 237

19 F.3d 1026, 1031 (9th Cir. 2001); Fed. R. Civ. P. 56(c)(3).

20

A party need not present evidence to support or oppose a motion for summary judgment in

21 a form that would be admissible at trial, but the contents of the parties’ evidence must be amenable 22 to presentation in an admissible form. See Fraser v. Goodale, 342 F.3d 1032, 1036−37 (9th Cir.

23 2003). Neither conclusory, speculative testimony in affidavits nor arguments in moving papers

24 are sufficient to raise genuine issues of fact and defeat summary judgment. Thornhill Publ’g Co.,

25 Inc. v. GTE Corp., 594 F.2d 730, 738 (9th Cir. 1979). On summary judgment, the court draws all

26 reasonable factual inferences in favor of the non-movant, Scott v. Harris, 550 U.S. 372, 378

27 (2007), but where a rational trier of fact could not find for the non-moving party based on the

28 record as a whole, there is no “genuine issue for trial” and summary judgment is appropriate. 43

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1 Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986).

2

C. Plaintiffs’ Claim Under § 1983 and the Sixth Amendment

3

Both parties seek summary judgment on Plaintiffs’ claim under 42 U.S.C. § 1983 that the

4 County failed to honor their right to counsel under the Sixth Amendment of the United States

5 Constitution. The parties agree that the Ninth Circuit’s Oviatt decision describes the appropriate

6 framework for a claim for failure to act to preserve a constitutional right. That case held that a

7 plaintiff bringing such a claim under § 1983 “must establish: (1) that he possessed a constitutional

8 right of which he was deprived; (2) that the municipality had a policy; (3) that this policy

9 ‘amounts to deliberate indifference’ to the plaintiff’s constitutional right; and (4) that the policy is

10 the ‘moving force behind the constitutional violation.’” Oviatt, 954 F.2d at 1474 (quoting City of

11 Canton v. Harris, 489 U.S. 378, 389–91 (1989)). The analysis here both begins and ends with the

12 first element: whether Plaintiffs were deprived of a constitutional right.

13

1. The Sixth Amendment and Rothgery

14

The Sixth Amendment provides in relevant part that in “all criminal prosecutions, the

15 accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.” U.S. Const.

16 amend. VI. The Supreme Court addressed “attachment” of the right to counsel in Rothgery as

17 follows:

18

The Sixth Amendment right of the “accused” to assistance of

counsel in “all criminal prosecutions” is limited by its terms: “it

19

does not attach until a prosecution is commenced.” McNeil v.

Wisconsin, 501 U.S. 171, 175 (1991); see also Moran v. Burbine,

20

475 U.S. 412, 430 (1986). We have, for purposes of the right to

counsel, pegged commencement to “‘the initiation of adversary

21

judicial criminal proceedings—whether by way of formal charge,

preliminary hearing, indictment, information, or arraignment,’”

22

United States v. Gouveia, 467 U.S. 180, 188 (1984) (quoting Kirby

v. Illinois, 406 U.S. 682, 689 (1972) (plurality opinion)). The rule is

23

not “mere formalism,” but a recognition of the point at which “the

government has committed itself to prosecute,” “the adverse

24

positions of government and defendant have solidified,” and the

accused “finds himself faced with the prosecutorial forces of

25

organized society, and immersed in the intricacies of substantive and

procedural criminal law.” Kirby, supra, at 689.

26

27 Rothgery, 554 U.S. at 198. The Court went on to hold in that case that “a criminal defendant’s

28 initial appearance before a judicial officer, where he learns the charge against him and his liberty 44

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1 is subject to restriction, marks the start of adversary judicial proceedings that trigger attachment of

2 the Sixth Amendment right to counsel,” reversing a decision by the Fifth Circuit that the right had

3 not attached because no prosecutor was aware of or involved with the plaintiff’s first court

4 appearance. Id. at 213.

5

Formally, the Supreme Court resolved only the question of whether the right had attached,

6 and declined to “decide whether the 6-month delay in appointment of counsel resulted in prejudice

7 to Rothgery’s Sixth Amendment rights” or “what standards should apply in deciding this.” Id.

8 The Court hinted at the answer to that question, however, by stating that “counsel must be

9 appointed within a reasonable time after attachment to allow for adequate representation at any

10 critical stage before trial, as well as at trial itself.” Id. at 212.

11

2. Legal Standard for Unreasonable Delay

12

As noted above, the Ninth Circuit instructed this Court to consider the question of whether

13 the County provided counsel within a reasonable time after attachment as stated in Rothgery,

14 which does not require Plaintiffs to show “actual prejudice.” Farrow, 637 F. App’x at 988–89.

15 Plaintiffs’ surviving Sixth Amendment claim is limited to that issue. See Apr. 2017 Order at 21–

16 27. With the exception of one district court that used a standard of actual prejudice inconsistent

17 with the Ninth Circuit’s instructions here, this Court is not aware of any decision articulating a

18 standard by which to evaluate reasonableness of delay. See id. at 26 (discussing Grogen v.

19 Gautreaux, No. 12-0039-BAJ-DLD, 2012 U.S. Dist. LEXIS 120411, at *9–11 (M.D. La. July 11,

20 2012), report and recommendation adopted, 2012 U.S. Dist LEXIS 120404 (M.D. La. Aug. 24,

21 2012)).

22

The language that the Supreme Court and Ninth Circuit used to describe the requirement

23 for timely appointment rules out possibilities of how to apply the standard that fall at both

24 extremes of the potential significance of attachment. First, and contrary to Plaintiffs’ arguments

25 and their expert’s personal view of the right to counsel, Rothgery cannot be understood as

26 requiring counsel to be appointed at an indigent defendant’s first court appearance, because the

27 decision specifically provides for “a reasonable time after attachment,” and also holds that the

28 right attaches at such an appearance. 554 U.S. at 212–13 (emphasis added). Thus, except where a 45

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1 defendant’s first appearance is itself a critical stage requiring representation, or arises after such a

2 critical stage, at least some time between the first appearance and the appointment of counsel is

3 constitutionally permissible. Second, and contrary to the County’s arguments here, the majority

4 opinion’s framing of the issue as “a reasonable time after attachment,” rather than “before a

5 critical stage,” precludes a framework that looks only to the timing of appointment with respect to

6 upcoming criminal stages. See id. (emphasis added); cf. id. at 218 (Alito, J., concurring) (“Texas

7 counties need only appoint counsel as far in advance of trial, and as far in advance of any pretrial

8 ‘critical stage,’ as necessary to guarantee effective assistance at trial.”). Although the majority

9 opinion’s phrasing explicitly recognizes the importance of adequate representation at critical

10 stages, it also requires some evaluation of whether the period of time between attachment and

11 appointment is reasonable. Both of these conclusions are bolstered by the Ninth Circuit’s

12 instruction for this Court to consider “how soon after the Sixth Amendment right attaches must

13 counsel be appointed, . . . at what point does delay become constitutionally significant,” and

14 “whether the delay in appointing counsel was unreasonable.” Farrow, 637 F. App’x at 988 15 (emphasis added).15

16

In its previous order, this Court indicated that it would look to “the totality of the

17 circumstances” to determine whether delay in providing counsel was constitutionally

18 unreasonable, taking into account “the time needed to prepare for an upcoming critical stage,” but

19 not limiting the analysis to that factor. Apr. 2017 Order at 27. The Court is not persuaded that

20

21

15 Affording due respect to, on one hand, Justice Alito, and on the other, Professor Boruchowitz, the majority opinion’s “reasonable time after attachment” language could be understood as dicta in

22

light of the Court’s statement that its “narrow” holding was limited to the issue of whether the right had attached and that the Court therefore had “no occasion to consider what standards should

23

apply in deciding” whether a delay in appointment of counsel actually violated the Sixth Amendment. Rothgery, 554 U.S. at 213. Outside of the context of this case, one could perhaps

24

reasonably argue that the language on which this order focuses is not binding, and either that the time between attachment and appointment of counsel is not in itself significant (and the

25

appropriate metric is instead solely the time between appointment and a critical stage) or that appointment is required at the time of attachment. Taking into account the Ninth Circuit’s

26

instructions remanding this case, however, this Court has no occasion to reconsider whether the phrase at issue in Rothgery would in itself constitute binding precedent. See Farrow, 637 F.

27

App’x at 988 (stating that the “remaining question is whether Lipetzky appointed counsel within a ‘reasonable time after attachment to allow for adequate representation at any critical stage before

28

trial, as well as at trial itself,’” and instructing this Court to consider Plaintiffs’ claim in that context).

46

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1 any alteration of that framework is warranted.

2

3. Plaintiffs Have Not Presented Evidence Sufficient to Establish a Violation

Based on a Facially Unconstitutional Policy or Deliberate Indifference

3

4

Plaintiffs argue that the Court need not and should not consider the particular

5 circumstances of their individual experiences to find a violation of their rights under the Sixth

6 Amendment based on the County’s policy of failing to provide counsel at criminal defendants’

7 first court appearances. The record presented here does not support such a finding.

8

As a starting point, the Court declines to accept Plaintiffs’ invitation to set a per se rule as

9 to how much time after attachment is presumptively reasonable. See Pls.’ Reply at 19–20 (asking

10 the Court to hold that “arrangements for provision of counsel should [presumptively] occur within

11 48 hours of arrest, and that counsel should [presumptively] be provided at the first court

12 appearance”). Plaintiffs cite no authority for the proposal that “arrangements for provision of

13 counsel” must begin before the right to counsel attaches. As previously discussed and as

14 determined by the court of appeals, the right to counsel only attached at Wade and Farrow’s first

15 appearances. Moreover, as discussed above, the Court construes Rothgery as foreclosing a rule

16 that counsel must be provided at the first appearance under the circumstances presented here.

17 Finally, the record in this case is not amenable to crafting the kind of rule Plaintiffs seek. It is true

18 that courts have, in some circumstances, fashioned rules to protect constitutional rights that

19 incorporate clear time periods. See, e.g., McLaughlin, 500 U.S. at 56–57 (establishing a

20 presumptive time limit of forty-eight hours for probable cause determinations after warrantless

21 arrests). If Plaintiffs wish for this Court to derive from the “reasonable time” standard endorsed

22 by the Supreme Court and Ninth Circuit a hard rule that, under the Sixth Amendment, counsel

23 must always be appointed within a fixed amount of time after attachment—or that some fixed

24 period is presumptively reasonable or unreasonable absent a showing to the contrary—they have

25 not presented the sort of evidence that would allow the Court to do so. Derived from the federal

26 Constitution, such a rule would presumably apply nationwide, in jurisdictions with a wide range of

27 resources, caseloads, and current practices.

28

Boruchowitz’s report, to the extent that it complies with Daubert, identifies a number of

47

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1 ways that delay in appointing counsel can potentially harm an indigent defendant. That there is

2 some risk of such harm is not controversial—the Supreme Court recognized as much in Rothgery:

3 “a defendant subject to accusation after initial appearance is headed for trial and needs to get a

4 lawyer working, whether to attempt to avoid that trial or to be ready with a defense when the trial

5 date arrives.” 554 U.S. at 210. For the most part, Boruchowitz does not tie the risks that he

6 identifies to a particular period of delay, and Coker focuses his opinions on the particular

7 circumstances of Plaintiffs’ cases rather than considerations affecting a typical case. The

8 evidentiary record before the Court therefore provides no basis to determine how much time a

9 generic, competent public defender’s office (or other system for appointing counsel) would need

10 to provide a defendant with an attorney—or in other words how much delay is reasonable, and

11 thus tolerable, under the Constitution in a typical case.

12

The record that Plaintiffs have presented also does not show that the Public Defender’s

13 Office employed an inherently unconstitutional policy in delaying appointment of counsel.

14

With the possible exception of the 1984 letter regarding arrangements at a particular

15 courthouse where neither Farrow nor Wade appeared—a letter of which Lipetzky was not aware

16 before this litigation, and for which there is no evidence that those arrangements continued in

17 force even at that courthouse through the time of Plaintiffs’ prosecutions—Plaintiffs cite no

18 evidence of a policy to withhold representation for any particular period of multiple days. While

19 there is some evidence regarding typical periods between court appearances, the only evidence

20 cited regarding the timing of representation indicates that the Public Defender’s Office received

21 referrals from the court “sometime between” the two court dates, Baker Decl. Ex. D (Lipetzky

22 Dep.) at 44:21–23, or as stated in Lipetzky’s declaration, the next business day after the first

23 appearance, Lipetzky Decl. ¶ 3, and defendants waited “up to”—i.e., at most—“two weeks in

24 custody . . . to be represented by an attorney,” Martin Decl. Ex. 1 (Lipetzky Dep.) at 030, 64:2–12.

25 The record also indicates that the Public Defender’s Office initiated contact with criminal

26 defendants before the second court appearance. Martin Decl. Ex. 1 at 037 (excerpt from the

27 Public Defender’s Office website stating that “a paralegal, law clerk or attorney” would interview

28 defendants in custody “before the next court date”); see also Baker Decl. Ex. C (Requests for 48

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1 Admissions) ¶ 7 (indicating that a staff member met with Farrow the next business day after his

2 first court appearance, which was nine days before his second appearance); Lipetzky Decl. ¶ 6

3 (same).

4

Plaintiffs cite no evidence that, as a matter of course, the County “appoint[ed] counsel five

5 to thirteen days and ‘sometimes longer’ after the right attaches.” Cf. Farrow, 637 F. App’x at

6 988–89 (instructing this Court to consider at the pleading stage whether Plaintiffs’ allegation that

7 the County utilized such a test stated a claim for unreasonable delay under Rothgery). Aside from

8 their own individual experiences, Plaintiffs have not presented evidence that such a policy exists, 9 and cannot prevail on the basis that a hypothetical policy would violate the Sixth Amendment.16

10

The only policy actually supported by the record is that counsel was provided “sometime

11 between” the first court appearance and the second court appearance. See Baker Decl. Ex. D

12 (Lipetzky Dep.) at 44:21–23. Such a policy—i.e., appointing counsel between attachment of the

13 right and the first critical stage—does not inherently violate Rothgery’s requirement that counsel

14 be appointed “within a reasonable time after attachment to allow for adequate representation at

15 any critical stage.” See 554 U.S. at 212.

16

Plaintiffs also contend that the County used a policy that allowed for arbitrary periods of

17 delay in appointment of counsel, and that this policy of indifference—rather than, as addressed

18 above, a policy of a particular length of delay—itself violated Plaintiffs’ Sixth Amendment right

19 to counsel, regardless of the delay (or lack thereof) that Plaintiffs themselves experienced. See

20 Pls’ MSJ at 18–20. In making that argument, Plaintiffs implicitly disregard the first element of the

21 Oviatt test—that Plaintiffs were deprived of a right—by assuming that demonstrating a policy of

22 indifference to the right to timely provision of counsel would in itself suffice to show that they

23 were deprived of a constitutional right.

24

25 16 Even if Plaintiffs had established the existence of such a policy, the record is not conducive to

26

determining its reasonableness, for much the same reasons that, as discussed above, this record would not allow the Court to develop a per se rule of how much time is permissible. The lack of

27

evidence regarding broad topics like, for example, logistical challenges to appointing counsel, processes for resolving conflicts and caseload constraints, and accepted practices and timelines in

28

other jurisdictions would still leave the finder of fact without sufficient facts to justify a conclusion that the policy, on its face, was constitutionally unreasonable.

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1

Plaintiffs rely on cases considering the right to due process, citing Oviatt’s examination of

2 whether a jail had sufficient internal procedure to track whether inmates’ liberty interests

3 established by Oregon law were sufficiently protected, and the Supreme Court’s decision in Carey

4 v. Piphus, 435 U.S. 247 (1978), which held that even students whose suspensions were justified

5 and who suffered no other actual injury were deprived of their procedural due process rights as a

6 result of constitutionally defective procedures and thus entitled to nominal damages. See Carey,

7 435 U.S. at 266; Oviatt, 954 F.2d at 1473–76; Pls.’ Mot. at 19–20 (citing Carey); Pls.’ Opp’n to

8 MSJ at 11–12 (discussing Oviatt). In those cases, however, the defendants’ indifference, lack of

9 safeguards, or defective procedures were themselves components of the deprivation of a right

10 because the right at issue was a right to process. Here, the Plaintiffs’ surviving constitutional

11 claim is for the right to counsel, and specifically the right to appointment of counsel within a

12 reasonable time after attachment. See Farrow, 637 F. App’x at 987 (affirming dismissal of

13 Plaintiffs’ due process claims); Apr. 2017 Order at 27–28 (allowing Plaintiffs’ Rothgery Sixth

14 Amendment claim to proceed). Plaintiffs have not presented authority for the proposition that a

15 criminal defendant who is in fact provided counsel within a reasonable period of time after

16 attachment nevertheless suffers a deprivation under the Sixth Amendment if the process by which 17 counsel is provided lacks safeguards to ensure timeliness.17

18

Accordingly, on the record before the Court, Plaintiffs cannot prevail based on a per se rule

19 of when counsel should be appointed, a theory of systemic deficiency based on a generally

20 applicable policy of delay, or a theory that deliberate inaction or indifference itself violates the

21 Sixth Amendment without need to consider the specific circumstances of Plaintiffs’ own

22 appointment of counsel.

23

24 17 Even if this case included a due process claim, which in its present form it does not, it is not at

25

all clear that the Due Process Clause would govern the process by which counsel is appointed. The Fourteenth Amendment provides that a state may not “deprive any person of life, liberty, or

26

property without due process of law.” U.S. Const. amend. XIV. While indigent criminal defendants certainly have a right under the Sixth Amendment to timely appointment of counsel,

27

Plaintiffs have not argued that indigent defendants have a liberty or property interest in timely appointment such that an inadequate procedure in determining the time of appointment would

28

effect a constitutional deprivation in itself under the Due Process Clause, even if counsel was timely appointed within the meaning of the Sixth Amendment.

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1

4. Plaintiffs’ Individual Experiences

2

Without establishing a per se rule of how long a delay is permissible or showing that the

3 County subjected Plaintiffs to an inherently impermissible policy, Plaintiffs could of course still

4 prevail by showing that the particular delays that they each experienced were constitutionally

5 unreasonable under the totality of the circumstances, see Apr. 2017 Order at 27, and that the

6 County is liable under Monell and Oviatt for its deliberate failure to prevent such unreasonable

7 delays. To meet Oviatt’s first element of deprivation of a constitutional right, Plaintiffs must show

8 that the County in fact did not provide them with counsel within a reasonable time after

9 attachment.

10

That is not to say, however, that the County can rely on circumstances after counsel was

11 appointed to show, post hoc, that the time of appointment was reasonable because it did not

12 actually affect Plaintiffs’ ability to defend themselves in the criminal proceedings against them.

13 Although Rothgery’s “reasonable time after attachment” requirement has not yet been subject to

14 significant analysis in the courts, the concept of reasonableness more generally is a familiar one,

15 and does not generally include the benefit of hindsight. See, e.g., Premo v. Moore, 562 U.S. 115,

16 132 (2011) (considering the reasonableness of counsel’s conduct in the context of a Strickland

17 ineffective assistance claim, and holding that “hindsight cannot suffice for relief when counsel’s

18 choices were reasonable and legitimate based on predictions of how the trial would proceed”);

19 Graham v. Connor, 490 U.S. 386, 396 (1989) (holding in the context of the Fourth Amendment

20 that the “‘reasonableness’ of a particular use of force must be judged from the perspective of a

21 reasonable officer on the scene, rather than with the 20/20 vision of hindsight”); Zebley v.

22 Heartland Indus. of Dawson, Inc., 625 F.3d 449, 457–58 (8th Cir. 2010) (holding that a district

23 court correctly stated the standard for negligence under North Dakota law when it instructed jurors

24 that they should not consider hindsight in determining how a reasonable person exercising

25 ordinary care would have behaved). Moreover, to engage in post hoc analysis of how the delay

26 affected Farrow and Wade would run afoul of the Ninth Circuit’s admonition that Plaintiffs need

27 not show actual prejudice. In the context of Rothgery, the appropriate test is therefore whether

28 counsel was provided within a period of time after attachment that was reasonable under the 51

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1 circumstances of a defendant’s case, as such circumstances were apparent at the time of

2 attachment and during the intervening period before counsel was provided. The Court declines to

3 consider developments in Plaintiffs’ cases that occurred, or circumstances that only became clear,

4 after Martin was assigned and agreed to represent them.

5

There is some dispute as to whether it is appropriate to take into account considerations

6 that are not directly related to the fairness of the criminal trial, such as the potential effects of

7 confinement on a criminal defendant’s employment or child custody, among other risks identified

8 in Boruchowitz’s report. The County cites United States v. Gonzalez-Lopez, 548 U.S. 140, 147

9 (2006), for the proposition that the right to counsel is limited to the purpose of ensuring a fair trial,

10 and that the only relevant potential for prejudice would be the potential for an unfair trial. See

11 Reply Re Mot. to Exclude at 3. The passage on which the County relies, however, describes “the

12 right to the effective assistance of counsel,” which the Supreme Court originally derived from the

13 Due Process Clause and later recognized as also arising from “the Sixth Amendment’s purpose of

14 ensuring a fair trial.” Gonzalez-Lopez, 548 U.S. at 146–47 (emphasis added). The Court

15 contrasted that right with the “right to select counsel of one’s choice,” which “has been regarded

16 as the root meaning of the constitutional guarantee,” and which requires no showing of prejudice

17 to establish a violation of a defendant’s right under the Sixth Amendment. Id. at 147–480. As

18 discussed in this Court’s previous order, this Court construes the right to timely appointment of

19 any counsel as distinct from the right to effective counsel. See Apr. 2017 Order at 25 (“Moreover,

20 it is not clear that the same standards apply to a case involving delayed appointment of counsel,

21 like this case, as would apply to cases involving ineffective assistance of counsel, as in Strickland

22 and Cronic.”); see also Hurell-Harring v. State, 15 N.Y.3d 8, 22 (2010) (holding that allegations

23 that “counsel was simply not provided at critical stages of the proceedings . . . state[d] a claim, not

24 for ineffective assistance under Strickland, but for basic denial of the right to counsel under

25 Gideon”). Because it does not affect the conclusion that the County is entitled to summary

26 judgment, the Court assumes for the sake of argument that considerations aside from the fairness

27 of trial are relevant to whether counsel was appointed within a reasonable period of time after

28 attachment 52

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1

Having addressed the framework to apply and the sort of considerations that are relevant,

2 the Court turns to whether the delays that Plaintiffs experienced were reasonable.

3

a. Time Allowed to Prepare for a Critical Stage

4

As a starting point, with respect to the only factor specifically identified by the Supreme

5 Court in Rothgery, the time allowed after appointment for counsel to prepare for upcoming critical

6 stages in Plaintiffs’ cases does not suggest that the delay was unreasonable. The Ninth Circuit

7 affirmed this Court’s determination, based on allegations that do not differ significantly from the

8 evidence in the record as to this issue, that Plaintiffs’ first appearances were not critical stages, but

9 that their second appearances for “further arraignment” were critical stages. Farrow, 637 F.

10 App’x at 988. The question as to this factor, then, is whether the timing of appointment

11 reasonably allowed for adequate representation at the second appearances. See id. (quoting

12 Rothgery, 554 U.S. at 212). Asked how much time a lawyer needs to prepare for arraignment,

13 Boruchowitz testified that a lawyer appointed in advance “should spend a good hour meeting with

14 the client before you do anything,” and if “appointed right there in the courtroom, you try to take

15 as much time as the judge will give you.” Martin Opp’n Decl. Ex. 12 (Boruchowitz Dep.) at

16 28:7–16.

17

Martin was assigned to Farrow’s case one day before Farrow’s second appearance for

18 arraignment and to Wade’s case three days before Wade’s second appearance for arraignment.

19 Baker Decl. Ex. F (Martin Dep.) at 9:25–10:6, 31:23–33:5; Martin Supp’l Decl Ex. 4 at 162 & Ex.

20 5 at 167. That timing allowed for the sort of preparation that Boruchowitz testified is appropriate,

21 and there is no other evidence in the record suggesting that more time would be necessary for an

22 attorney to provide adequate representation at an arraignment. Moreover, it is difficult to see how

23 appointment one or more days before a defendant’s arraignment could be construed as providing

24 inadequate time to prepare when appointing counsel at a first appearance that includes

25 arraignment—the process that Plaintiffs seek to require, which the County has in large part

26 adopted in the years since this case was filed, and which is widely used in other jurisdictions—

27 provides less time for counsel to prepare than was available in either Plaintiff’s case. There is also

28 no evidence that Martin believed he had insufficient time to prepare for Plaintiffs’ second 53

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1 appearances. The factor of sufficient time to prepare for a critical stage therefore weighs against

2 finding the delay unreasonable for either Plaintiff.

3

The next question is whether evidence in the record pertaining to other relevant factors

4 would nevertheless require the conclusion that the delay in appointment for either Plaintiff was

5 unreasonable (as Plaintiffs assert) or reasonable (as the County asserts) based on the totality of the

6 circumstances. The Court examines each Plaintiff’s circumstances separately, beginning with

7 Wade.

8

b. Other Factors Relevant in Wade’s Case

9

Wade, one of five codefendants, first appeared in court on Monday, November 14, 2011,

10 and his right to counsel therefore attached. Martin Supp’l Decl. Ex. 5 at 165; Lipetzky Decl. ¶ 9.

11 The Public Defender’s Office determined that it had a conflict three days later on November 17.

12 Lipetzky Decl. ¶ 9 & Ex. D. The Alternate Defender’s Office determined that it also had a

13 conflict the following day, November 18, and the case was referred to the conflicts panel and

14 assigned to Martin that same day. Id. ¶ 9 & Ex. E; Baker Decl. Ex. F (Martin Dep.) at 31:23–33:5.

15 Martin began working on the case that day—four days after Wade’s right to counsel attached. See

16 id. at 37:16–39:4; Baker Decl. Ex. R.

17

Coker, an experienced public defender who before his retirement was in charge of the San

18 Diego County Public Defender’s Office, states in his report that “the fact that attorney Martin’s

19 assignment to represent Wade in this complex and serious five-defendant case occurred only four

20 days after Wade’s initial court appearance seems quite reasonable under all these circumstances

21 and entirely consistent with diligent efforts to arrange for counsel.” Martin Decl. Ex. 3 at 126

22 ¶ 16. Although Boruchowitz—who is also an experienced public defender—identifies a number

23 of generic risks inherent in delayed provision of counsel that would tend to weigh against the

24 reasonableness of any delay, his report and testimony do not address how much time is reasonable

25 to resolve conflicts of interest in a case with several codefendants, and thus do not refute Coker’s

26 opinion on that issue. See Martin Decl. Ex. 2 at 094–97, 101–04 ¶¶ 15.1–15.13, 37–48. Nor is the

27 Court persuaded that the fact that the County’s more recent practice under the ACER program

28 (which devotes more resources to provide counsel at first appearances) calls for resolving conflicts 54

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1 within “not more than two days,” Lipetzky Decl. ¶ 15, creates a material factual dispute. The

2 possibility of faster appointment does not contradict Coker’s conclusion that the four-day conflicts

3 process in Wade’s case was reasonable. Followed to its logical conclusion, a rule that

4 reasonableness requires that all possible efforts and resources must be devoted to minimizing

5 delay in provision of counsel would essentially require appointment at all defendants’ first

6 appearances—an outcome that, as discussed above, is not consistent with the law of the case or

7 with Rothgery’s allowance of a reasonable delay.

8

Even assuming for the sake of argument that the delay in appointing counsel allowed

9 charges to be added against Wade that would not otherwise have been permitted without leave of

10 the court, and that the delay affected his school principal’s recollection of his interrogation to his

11 detriment, there is no evidence aside from Coker’s opinion as to how much time is reasonable for

12 a public defender’s office to resolve conflicts of interest in a case like Wade’s. Because Coker’s

13 opinion on that issue is undisputed, and taking into account the fact that there is no evidence that

14 the delay left counsel with insufficient time to prepare for a critical stage, no rational finder of fact

15 could conclude on this record that the four-day delay in Wade’s case was unreasonable. The

16 County’s motion for summary judgment is therefore GRANTED as to Wade’s Sixth Amendment

17 claim, and Plaintiffs’ motion is DENIED as to that claim.

18

c. Other Factors Relevant in Farrow’s Case

19

Farrow’s case presents a closer call, because there is essentially no evidence in the record

20 explaining a reason for the longer delay of twelve days between attachment of his right to counsel

21 and Martin’s assignment to represent him. The Public Defender’s Office determined that

22 appointment from the conflicts panel was necessary in light of its excessive caseload, but neither

23 Coker nor Boruchowitz addresses the amount of time reasonable to arrange for such appointment.

24 Coker’s speculation that the Labor Day holiday weekend might have led to more criminal cases

25 than usual does not appear to be based on any evidence, and regardless, does not explain why

26 appointment of conflict counsel in such circumstances should take twelve days. See Martin Decl.

27 Ex. 3 at 127 ¶ 18.

28

The totality of the circumstances, however, is not limited to merely the length of the delay.

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1 In Farrow’s case, the Public Defender’s Office dispatched a paralegal to meet with Farrow and

2 inquire about his case on the next business day after his first court appearance, which, due to the

3 long weekend, was four calendar days later. Lipetzky Decl. ¶ 6. The paralegal completed a report

4 of the interview on a form that included sections for medical or psychiatric history, bail

5 information or “general comments,” and case notes “re case progress, problems, settlement,”

6 among other topics. Lipetzky Decl. Ex. B. According to Lipetzky, “[n]either the referral packet

7 itself nor the interview with Mr. Farrow disclosed any urgent issues pertaining to Mr. Farrow or

8 the charges that had to be addressed in advance of” the next appearance. Lipetzky Decl. ¶ 6.

9 Coker’s report states his opinion that “[t]his interview process would have identified, but did not,

10 any matter in Farrow’s criminal case requiring immediate attention.” Martin Decl. Ex. 3 at 127

11 ¶ 20. Lipetzky states in her declaration that in cases where the paralegal interview identified such

12 issues, the Public Defender’s Office “would take steps to address these immediate needs.” 13 Lipetzky Decl. ¶ 4.18

14

Boruchowitz’s report generally identifies potential harms that could result from delayed

15 appointment of counsel because of issues that counsel would recognize and might redress if

16 appointed sooner. See Martin Decl. Ex. 2 at 094–97, 101–04 ¶¶ 15.1–15.13, 37–48.

17 Boruchowitz’s report does not, however, address whether a paralegal could identify those issues,

18 and thus does not rebut Coker’s conclusion that the paralegal who interviewed Farrow would have

19 identified any such issues if they had applied to Farrow. As for whether the paralegal interview

20 was itself unreasonably delayed, if the Court accepts the premise (based on the Supreme Court’s

21 formulation of the rule in Rothgery) that some delay is permissible, Boruchowitz’s report does not

22 provide a standard to evaluate how much delay is reasonable, and Plaintiffs do not identify other

23 evidence in the record to support a conclusion that meeting with a defendant on the next business

24 day after attachment of the right to counsel is unreasonable, particularly where the next court

25

26 18 Plaintiffs assert that there is no evidence that the Public Defender’s Office actually took such

27

steps. Pls.’ Opp’n to MSJ at 13. Plaintiffs do not, however, identify any evidence contradicting Lipetzky’s statement, and in the absence of contrary evidence there is no reason to conclude that

28

Lipetzky’s declaration under penalty of perjury about the procedure that her office followed is not accurate.

56

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United States District Court Northern District of California

1 appearance is not imminent, and where the Public Defender’s Office generally did not receive

2 referrals from the Superior Court until that next business day, see Lipetzky Decl. ¶ 3.

3

The evidence that the paralegal interview would have revealed any issues requiring

4 attention before the second appearance, and that it in fact revealed no such issues, is

5 uncontroverted. The evidence also shows, as discussed above, that Martin was appointed with

6 enough time to prepare for the first critical stage of Farrow’s case. Taking into account all of the

7 facts and circumstances of Farrow’s case, no reasonable finder of fact could conclude on this

8 record that the twelve-day delay in appointing counsel in that case was constitutionally

9 unreasonable. The County’s motion for summary judgment is therefore GRANTED as to

10 Farrow’s Sixth Amendment claim, and Plaintiffs’ motion for summary judgment is DENIED as to

11 this claim.

12

* * *

13

Because the Court concludes that a rational finder of fact could not find on this record that

14 provision of counsel to Farrow and Wade was unreasonably delayed for the purpose of the Sixth

15 Amendment, the Court does not reach the parties’ remaining arguments regarding the Sixth

16 Amendment claim, including whether Farrow is collaterally estopped from bringing such a claim

17 and whether the practices at issue violated the Sixth Amendment rights of potential class members

18 other than the current Plaintiffs. Without evidence to support the conclusion that Plaintiffs’ own

19 Sixth Amendment rights were violated, Plaintiffs cannot represent a class of other individuals on

20 their claims that the County’s practices violated the rights of putative class members. In any

21 event, the Court does not decide whether the rights of the non-party putative class members were

22 violated, as no class has been certified. Although Plaintiffs’ own Sixth Amendment claims are

23 dismissed with prejudice, the claims of other members of the putative class are not before the

24 Court, and this order does not bar any person other than Wade and Farrow from bringing such a

25 claim.

26

D. Plaintiffs’ Claim Under California Government Code Section 27706

27

Plaintiffs’ remaining claim under section 27706 of the California Government Code is a

28 state law claim that falls within this Court’s subject matter jurisdiction, if at all, under the doctrine 57

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United States District Court Northern District of California

1 of supplemental jurisdiction codified by 28 U.S.C. § 1367(a). Under subsection (c) of that statute,

2 however, a district court “may decline to exercise supplemental jurisdiction over a claim under

3 subsection (a) if,” among other reasons, “the claim raises a novel or complex issue of State law” or

4 “the district court has dismissed all claims over which it has original jurisdiction.” Id. § 1367(c).

5 “[I]n the usual case in which all federal-law claims are eliminated before trial, the balance of

6 factors to be considered under the [supplemental] jurisdiction doctrine—judicial economy,

7 convenience, fairness, and comity—will point toward declining to exercise jurisdiction over the

8 remaining state-law claims.” Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988).

9

This case raises what appear to be novel issues of how quickly section 27706 requires a

10 public defender to provide representation upon request or appointment, whether and how ethical

11 conflicts affect that inquiry, and whether a referral of a plaintiff’s request for counsel by a court to

12 a public defender’s office triggers the public defender’s obligations under section 27706 as either a

13 direct request by the plaintiff for representation by the public defender or an appointment of the

14 public defender by the court. Plaintiffs present no argument in their briefs why this case warrants

15 a deviation from the usual approach of declining to exercise state law claims after all federal

16 claims have been dismissed. The Court therefore GRANTS the County’s request and dismisses

17 Plaintiffs’ section 27706 for lack of subject matter jurisdiction, without prejudice to Plaintiffs

18 bringing that claim in a court of competent jurisdiction.

19 IV. CONCLUSION

20

For the reasons discussed above, the Court concludes that a reasonable finder of fact could

21 not find that the delay in providing counsel after Plaintiffs’ first appearances in their criminal

22 cases was constitutionally unreasonable. To be clear, in reaching this determination, the Court

23 considers only what conclusions can be drawn from the record available, and does not purport to

24 hold that a four- or twelve-day delay is presumptively reasonable, or that an interview by a

25 paralegal before counsel is appointed can necessarily substitute under the Sixth Amendment for

26 providing an attorney. Based on the evidence presented in this case, however, Plaintiff’s motion

27 for summary judgment is DENIED, the County’s motion for summary judgment is GRANTED as

28 to Plaintiffs’ claim under 42 U.S.C. § 1983 and the Sixth Amendment, and Plaintiffs’ claim under 58

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United States District Court Northern District of California

1 California Government Code section 27706 is DISMISSED for lack of subject matter jurisdiction,

2 without prejudice to Plaintiffs bringing that claim in a court of competent jurisdiction. The Clerk

3 is instructed to enter judgment accordingly and to close the file.

4

Because the claims of the putative class are not before the Court, this order does not bar

5 absent putative class members from bringing any claim in a separate action.

6

IT IS SO ORDERED.

7 Dated: January 2, 2019

8

______________________________________

JOSEPH C. SPERO

9

Chief Magistrate Judge

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 59

 
 Farrow v. Lipetzky, 637 Fed.Appx. 986 (2016)

637 Fed.Appx. 986 This case was not selected for publication in West’s
Federal Reporter. See Fed. Rule of Appellate Procedure 32.1 generally governing citation of judicial decisions issued on or after Jan. 1, 2007. See also U.S.Ct. of App. 9th Cir.
Rule 36-3. United States Court of Appeals,
Ninth Circuit.
John FARROW and Jerome Wade, on their behalf, and on behalf of others similarly situated, Plaintiffs–Appellants, v.
Robin LIPETZKY, Contra Costa County Public Defender, Defendant–Appellee.
No. 13–16781. |
Argued and Submitted Dec. 7, 2015. |
Filed Jan. 8, 2016.
Synopsis Background: Criminal defendants filed putative class action, alleging that county public defender’s office violated their Sixth Amendment right to counsel, due process, and equal protection by withholding legal representation to indigent criminal defendants for period of five to 13 days after their initial court appearance. The United States District Court for the Northern District of California, Joseph C. Spero, United States Magistrate Judge, 2013 WL 4042276, dismissed the action. Plaintiffs appealed.
Holdings: The Court of Appeals held that:
alleged practice of not providing legal representation to indigent criminal defendants until five to 13 days after their initial court appearance did not violate California’s speedy trial law;
public defender’s office’s practice did not violate equal protection; and
remand was required to address Sixth Amendment claim.
Affirmed in part, reversed in part, and remanded.
1

Attorneys and Law Firms
*987 Christopher Alan Martin, Martin Law Offices, Pt. Richmond, CA, Michael Emery Dietrick, Law Offices of Michael Dietrick, Petaluma, CA, for Plaintiffs– Appellants.
David Cameron Baker, Martinez, CA, for Defendant– Appellee.
Appeal from the United States District Court for the Northern District of California, Joseph C. Spero, Magistrate Judge, Presiding. D.C. No. 3:12–cv–06495– JCS.
Before: WARDLAW, W. FLETCHER, and MURGUIA, Circuit Judges.
MEMORANDUM* John Farrow and Jerome Wade appeal the district court’s grant of Robin Lipetzky’s motion to dismiss their putative class-action complaint. Plaintiffs allege that defendant “arbitrarily withheld legal representation to indigent, incustody, criminal defendants in felony [and misdemeanor] matters for a period of 5 to 13 days after their initial Court appearance, and sometimes longer, as a matter of policy,” thereby violating their constitutional rights to counsel, due process, and equal protection. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm in part, reverse in part, and remand for further consideration.1
1. The district court did not err in dismissing plaintiffs’ due process claims. “[S]tate statutes may create liberty interests that are entitled to the procedural protections of the Due Process Clause of the Fourteenth Amendment.” Carlo v. City of Chino, 105 F.3d 493, 497 (9th Cir.1997) (citation omitted). Plaintiffs rely on California Penal Code § 859b, which provides that a defendant is entitled to a preliminary examination “within 10 court days of the date the defendant is arraigned or pleads, whichever occurs later.” However, the complaint alleges that Lipetzky delayed plaintiffs’ arraignments and pleas, not that the preliminary examination occurred more than 10 days later. Without an underlying violation of California’s speedy trial scheme, plaintiffs have not adequately pleaded a due process claim.
2. Nor did the district court err in dismissing plaintiffs’ equal protection claim. That the assistance of counsel at

Farrow v. Lipetzky, 637 Fed.Appx. 986 (2016)
the initial appearance “might be of benefit to an indigent defendant does not mean that the service is constitutionally required.” Ross v. Moffitt, 417 U.S. 600, 616, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974). Because indigent defendants in Contra Costa County retain “an adequate opportunity to present their claims fairly within the adversary system,” Lipetzky’s policy does not violate the Equal Protection Clause. Id. at 612, 94 S.Ct. 2437; see also *988 Halbert v. Michigan, 545 U.S. 605, 610–11, 125 S.Ct. 2582, 162 L.Ed.2d 552 (2005); Johnson v. Oklahoma, 484 U.S. 878, 879–80, 108 S.Ct. 35, 98 L.Ed.2d 167 (1987).
3. The district court did err in dismissing plaintiffs’ Sixth Amendment claim. The Sixth Amendment requires that counsel “be appointed within a reasonable time after attachment to allow for adequate representation at any critical stage before trial, as well as at trial itself.” Rothgery v. Gillespie County, 554 U.S. 191, 212, 128 S.Ct. 2578, 171 L.Ed.2d 366 (2008). The complaint alleges that Lipetzky deprived Wade of counsel for seven days after his initial appearance, deprived Farrow of counsel for thirteen days after his initial appearance, and sometimes withheld counsel from indigent defendants for periods exceeding thirteen days.
The right to counsel “attache[d] at the [defendant’s] initial appearance,” when “the magistrate inform[ed] the defendant of the charge[s]” against him and “determine[d] the conditions for pretrial release.” Rothgery, 554 U.S. at 199, 128 S.Ct. 2578 (citation omitted). However, the “question whether [an initial appearance] signals the initiation of adversary judicial proceedings ... is distinct from the question whether the [initial appearance] itself is a critical stage requiring the presence of counsel.” Id. at 212, 128 S.Ct. 2578 (omission in original) (quoting Michigan v. Jackson, 475 U.S. 625, 630 n. 3, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986)). On the facts alleged in the complaint, the initial appearance was not a critical stage. See Gerstein v. Pugh, 420 U.S. 103, 122–23, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975); United States v. Perez, 776 F.2d 797, 800 (9th Cir.1985), overruled on other grounds by United States v. Cabaccang, 332 F.3d 622 (9th Cir.2003). The hearing did not “test[ ] the merits of the accused’s case”; “skilled counsel” was not necessary to “help[ ] the accused understand” the proceedings; and there was no risk that an uncounseled defendant would permanently forfeit “significant rights.” United States v. Benford, 574 F.3d 1228, 1232 (9th Cir.2009) (citation omitted). Nor did the preliminary bail determination made at the initial appearance render that hearing a critical stage. See Rothgery, 554 U.S. at 195, 212, 128 S.Ct. 2578;
Footnotes
2

Gerstein, 420 U.S. at 120–23, 95 S.Ct. 854.
The “further arraignment,” by contrast, was plainly a critical stage because the plaintiffs entered pleas at that hearing. See White v. Maryland, 373 U.S. 59, 60, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963). It is undisputed that the plaintiffs were therefore entitled to—and received—legal representation at their “further arraignments.”
The remaining question is whether Lipetzky appointed counsel within a “reasonable time after attachment to allow for adequate representation at any critical stage before trial, as well as at trial itself.” Rothgery, 554 U.S. at 212, 128 S.Ct. 2578. In other words, how soon after the Sixth Amendment right attaches must counsel be appointed, and at what point does delay become constitutionally significant? Instead of addressing whether the delay in appointing counsel was unreasonable, the district court considered only whether the delay “impacted [plaintiff’s] representation at subsequent critical stages of his proceedings.” By framing the question in that way, the district court erroneously required the plaintiffs to allege actual prejudice. See United States v. Wade, 388 U.S. 218, 225, 236–37, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) (finding a Sixth Amendment violation based on the “grave potential for prejudice”); Hamilton v. Alabama, 368 U.S. 52, 54, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961) (finding a Sixth Amendment violation where the absence of counsel “may affect the whole trial”). We *989 therefore remand for the district court to consider whether appointing counsel five to thirteen days and “sometimes longer” after the right attaches complies with the “reasonable time” requirement articulated in Rothgery.
4. After dismissing all of plaintiffs’ federal law claims, the district court declined to exercise supplemental jurisdiction over their state law claims. Because we reverse the dismissal of plaintiffs’ Sixth Amendment claim, we also reverse the dismissal of plaintiffs’ state law claims.
AFFIRMED IN PART; REVERSED IN PART; REMANDED.
All Citations
637 Fed.Appx. 986

Farrow v. Lipetzky, 637 Fed.Appx. 986 (2016)

*

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36–3.

1

Lipetzky argues that because Wade declined to file a third amended complaint, his claims were dismissed for failure to comply

with a court order under Federal Rule of Civil Procedure 41 rather than for failure to state a claim under Rule 12(b)(6). However,

the district court never invoked Rule 41 in dismissing the complaint. Instead, the court relied on Rule 12(b)(6), “permitted” Wade

“one more opportunity to amend” his Sixth Amendment claim, and closed the case when Wade’s time to do so expired. We

therefore treat the dismissal of both Farrow’s and Wade’s claims as pursuant to Rule 12(b)(6).

End of Document

3

 
 Case 3:12-cv-06495-JCS Document 69 Filed 08/07/13 Page 1 of 35

United States District Court Northern District of California

1

2

3

UNITED STATES DISTRICT COURT

4

NORTHERN DISTRICT OF CALIFORNIA

5 JOHN FARROW, et al.,
6

7

Plaintiffs,

8

v.

Case No. 12-cv-06495-JCS
ORDER GRANTING DEFENDANT’S MOTION TO DISMISS THE SECOND AMENDED COMPLAINT

9 ROBIN LIPETZKY,

10

Defendant.

11 I. INTRODUCTION

12

Plaintiffs John Farrow (“Farrow”) and Jerome Wade (“Wade”) (collectively, “Plaintiffs”)

13 brought this putative class action against Defendant Robin Lipetzky, in her official capacity as the

14 Contra Costa County Public Defender (“Defendant”). Plaintiffs allege causes of action (1) under

15 42 U.S.C. § 1983 for (a) violation of the Sixth Amendment to the United States Constitution; and

16 (b) violations of the Fourteenth Amendment to the United States Constitution; (2) under the Bane

17 Act for violation of their statutory speedy trial rights; and (3) for violation of California

18 Government Code § 27706. Plaintiffs claim that Defendant violated their rights by failing to

19 provide counsel at Plaintiffs‟ initial appearance on criminal charges -- resulting in a continuance of

20 the proceedings for appointment of counsel. This case focuses on the constitutionality of that

21 continuance: may the Public Defender not provide counsel for appointment at an initial

22 appearance, where the result is a continuance of the remainder of the arraignment 7 to 13 days for

23 appointment of counsel? This Order holds that, in the circumstances pleaded here, such a

24 procedure is constitutional.

25

Presently before the Court is Defendant‟s Motion to Dismiss the Second Amended

26 Complaint (“Motion”). A hearing was held on the Motion on July 26, 2013. At the Court‟s

27 request, the parties submitted supplemental briefing on August 2, 2013. For the following

28 reasons, the Motion is GRANTED. Wade will be given leave to amend his Sixth Amendment

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United States District Court Northern District of California

1 claim within the constraints set forth in this Order. Farrow‟s federal claims are dismissed with 2 prejudice. Plaintiffs‟ state law claims are dismissed without prejudice.1

3 II. BACKGROUND

4

A. The May 8, 2013 Order Dismissing the Complaint Without Prejudice

5

1. The Sixth Amendment Claim

6

In the May 8, 2013 Order Dismissing the Complaint Without Prejudice (“Order”), the

7 Court found that the motion at issue raised two related questions:

8

First, does the failure to provide counsel at an initial appearance (at which the only events

9

that occur are the provision of a copy of the charges to the defendant, the inquiry as to

whether the defendant desires appointed counsel, and the continuance of the matter to

10

allow for appointment of counsel) violate the Sixth Amendment guarantee of counsel in a

criminal case? Second, where the matter is continued for 5 to 13 days, at which time

11

counsel appears with the defendant, does the delay in appointment of counsel violate the

12

Sixth Amendment?

13 Order, 1. The Court answered both questions in the negative. Id.

14

First, the Court concluded that the Sixth Amendment right to counsel attached at the initial

15 appearance because, on the facts alleged, that was when prosecution began as to each Plaintiff. Id.

16 at 13-14. Second, the Court stated: “Once the right to counsel attaches, the accused is entitled to

17 appointed counsel during any „critical stage‟ of the post-attachment proceedings.” Id. at 14 (citing

18 Rothgery v. Gillespie County, Texas, 554 U.S. 191, 212, 128 S.Ct. 2578, 171 L.Ed.2d 366 (2008)).

19 Third, the Court analyzed whether either (1) the initial appearance; or (2) the 5 to 13 day waiting

20 period were, on the facts alleged, critical stages at which Plaintiffs were entitled to counsel. Id. at

21 14-22.

22

To begin its analysis, the Court noted that “[c]ourts decide whether a state criminal

23 proceeding is critical by looking to the functions of the proceeding under state law.” Id. at 15

24 (citing Hamilton v. Alabama, 368 U.S. 52, 54, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961)). The Court

25 stated that the Ninth Circuit has developed a three-factor test for determining whether a stage is

26 critical. Id. (citing Menefield v. Borg, 881 F.2d 696, 698-99 (9th Cir. 1989); U.S. v. Benford, 574

27

28 1 The parties have consented to the jurisdiction of a magistrate judge pursuant to 28 U.S.C. § 636(c). 2

Case 3:12-cv-06495-JCS Document 69 Filed 08/07/13 Page 3 of 35

United States District Court Northern District of California

1 F.3d 1228, 1232 (9th Cir. 2009)). The Court described the test as follows: “Any one of these

2 three factors may be sufficient to make a stage critical: (1) failure to pursue strategies or remedies

3 results in a loss of significant rights; (2) skilled counsel would be useful in helping the accused

4 understand the legal confrontation; and (3) the proceeding tests the merits of the accused‟s case.”

5 Id. The Court reasoned that: (1) because nothing happened at the initial appearance any failure to

6 pursue strategies or remedies at that appearance did not result in a loss of significant rights; and

7 (2) there was no legal confrontation or proceeding at which accused was unrepresented following

8 the request for counsel. Id. at 16-17. The Court further concluded that the fact that, had counsel

9 been appointed, counsel might have applied for a release on bail, caused a plea to be entered, or

10 triggered statutory speedy trial rights did not change the analysis. Id. at 17. The Court

11 distinguished cases, cited by Plaintiffs, in which pretrial liberty interests were adjudicated in the

12 absence of counsel. Id. at 19-20.

13

Next, the Court analyzed whether the five to thirteen day waiting period between the initial

14 appearance, at which counsel was present, and the further arraignment, at which counsel was

15 appointed, was a critical stage of the post-attachment proceedings. Id. at 16-17, 20-22. Although

16 Plaintiffs did not allege that any event took place during the waiting period at which counsel

17 would have been necessary, the court noted that Rothgery further requires the appointment of

18 counsel a reasonable time prior to any critical stage after attachment to allow adequate

19 representation at that critical stage. Id. at 16-17, 20. However, the Court stated that Plaintiffs had

20 not alleged that they were prejudiced, or impeded, at any later critical stages by the absence of

21 counsel during the five-to-thirteen day waiting period. Id. at 22.

22

Based on all of the above, the Court dismissed Plaintiffs‟ Sixth Amendment claim, on the

23 facts alleged, with leave to amend. Id. at 22.

24

2. Fourteenth Amendment Claims Predicated on a Violation of State

25

Statutory Speedy Trial Rights

26

The Court concluded that Plaintiffs had not alleged a violation of their state speedy trial

27 rights because the facts alleged were consistent with the requirements of California Penal Code §§

28 859b, 1049.5, and 1382. Id. at 27. Further, the Court found that, on the facts alleged, the 3

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United States District Court Northern District of California

1 procedures of § 1050 were not triggered. Id. Accordingly, the Court dismissed Plaintiffs‟

2 Fourteenth Amendment claims predicated on a violation of their state statutory speedy trial rights

3 with leave to amend. Id. at 28.

4

3. State Law Claims

5

After dismissing Plaintiffs‟ remaining federal cause of action, which has been replaced

6 with a different federal cause of action in Plaintiffs‟ Second Amended Complaint (“SAC”), the

7 Court declined to exercise its supplemental jurisdiction over Plaintiffs‟ remaining state law claims.

8 Id. at 31-32.

9

B. The Second Amended Complaint

10

Pursuant to a now discontinued practice, Defendant withheld legal representation to all

11 indigent, in-custody, criminal defendants for a period of 5 to 13 days after their initial Court 12 appearance, and sometimes longer. SAC, ¶¶ 1-2.2 At the first court appearance, dubbed

13 “arraignment,” no plea is taken, bail is set without consideration of the favorable information

14 counsel would ordinarily provide to the court regarding the criminal defendant‟s circumstances,

15 the case is referred to the probation department for an evaluation concerning bail, and counsel is

16 not appointed as required by California law. Id. at ¶ 3. The probation department‟s evaluation

17 and report is based entirely upon information provided by government sources. Id. An indigent

18 criminal defendant‟s request for court-appointed counsel triggers referral to the Public Defender

19 and an automatic continuance for “further arraignment.” Id. at ¶ 4. Criminal defendants are not

20 apprised of their statutory speedy trial rights prior to the automatic continuance in violation of

21 California law. Id. at ¶ 6. Good cause for continuance is never shown as required by California

22 Penal Code § 1050. Id. This thwarts the intent of the California legislature‟s statutory speedy trial

23 scheme, which requires that in-custody criminal defendants receive probable cause determinations

24 through a preliminary hearing at the earliest time possible to protect their crucial liberty interest.

25 Id. at ¶ 7.

26

Turning to Plaintiffs, Farrow was arrested on August 30, 2011. Id. at ¶ 28. He appeared

27
28 2 The SAC makes distinct allegations concerning the treatment of in custody felony defendants and in custody
misdemeanor defendants. The SAC does not specify to which group Plaintiffs belong.
4

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United States District Court Northern District of California

1 alone in court for his arraignment on September 2, 2011. Id. at ¶ 29. The court asked him if he

2 could afford counsel, and he replied that he could not. Id. at ¶ 30. The court then asked him if he

3 wanted the court to appoint counsel, and he said that he did. Id. The court set bail, referred the

4 matter to the Public Defender, and continued the matter to September 15, 2011 for “further

5 arraignment” without advising Farrow of his right to a prompt arraignment, his right to bail, or his

6 right to a speedy preliminary hearing and trial. Id. Farrow languished in jail, without meaningful

7 examination of bail, the protection of statutory speedy trial rights, or legal representation, for

8 thirteen days. Id. Also at his September 2, 2011 arraignment, the court referred the matter for a

9 bail study. Id. at ¶ 31. The bail study was conducted between Farrow‟s first and second court

10 appearances and, because Farrow was not represented by counsel, there was no means for the

11 probation department to include any favorable information in the highly influential report. Id. at ¶

12 31.

13

At the further arraignment held 16 days after his arrest and 13 days after his first court

14 appearance, counsel was appointed for Farrow and he was permitted to enter a plea. Id. at ¶ 32.

15 He immediately asserted his right to a speedy preliminary hearing and his preliminary hearing was

16 held on September 27, 2011. Id. at ¶ 33. As a result of the delay in the appointment of counsel,

17 Farrow‟s counsel had 13 less days than the prosecutor to prepare for the preliminary hearing. Id.

18 at ¶ 34.

19

Wade was arrested at his high school on November 8, 2011 when he was 17 years old. Id.

20 at ¶ 35. He appeared in Court alone for his arraignment on November 14, 2011 after being held

21 illegally in violation of California Penal Code § 825. Id. at ¶¶ 36-37. Wade was unaware of this

22 violation of his rights. Id. at ¶ 37. The county prosecutor appeared at Wade‟s first appearance.

23 Id. at ¶ 38. The proceedings at Wade‟s first appearance progressed in the same fashion as

24 Farrow‟s, and the matter was continued to November 21, 2011 for further arraignment. Id. at ¶ 39.

25 Also, as with Farrow, a bail study was ordered and Wade was unable to supply favorable

26 information because he did not have counsel. Id. at ¶ 40. Wade languished in jail for the

27 following 7 days without examination of bail, the protection of statutory speedy trial rights, or

28 legal representation. Id. at ¶ 39. During that time, the police investigation was ongoing and the

5

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United States District Court Northern District of California

1 district attorney was hard at work on his case. Id. at ¶ 42. On November 18, 2011, the district

2 attorney filed an amended complaint, amending the complaint filed on November 10, 2011,

3 adding an additional fifteen charges and enhancements, greatly increasing Wade‟s exposure. Id. at

4 ¶¶ 41, 43. The prosecution was able to file the amended complaint as a matter of right because

5 Wade had not yet entered a plea as a result of Defendant‟s policy. Id. at ¶ 43.

6

Counsel was appointed for Wade at his further arraignment on November 21, 2011, 13

7 days after his arrest and 7 days after his first appearance as a juvenile charged as an adult. Id. at ¶

8 44. At that time, his counsel began reviewing approximately 600 pages of discovery. Id. at ¶ 45.

9 In that process, counsel eventually became aware of a potential Miranda issue. Id. Because Wade

10 had been interrogated in front of his high school principal, Wade‟s counsel obtained an

11 investigative authorization and dispatched an investigator to interview the principal about the

12 interrogation. Id. At the interview, held on November 28, 2011, the principal maintained that she 13 could no longer remember when or how Wade was Mirandized. Id.3

14

On the basis of the foregoing allegations, Plaintiffs allege six causes of action, as follows:

15

(1) Violation of the Sixth Amendment of the United States Constitution Pursuant to 42

16 U.S.C. § 1983: Plaintiffs allege that Defendant‟s failure to represent them at their first

17 appearance, or a reasonable time thereafter, as a matter of policy, violated their Sixth Amendment

18 right to the assistance of court-appointed counsel. Id. at ¶ 57. Plaintiffs allege that they were

19 directly and proximately damaged and are entitled to recover nominal damages. Id.

20

(2) Violation of the Fourteenth Amendment of the United States Constitution –

21 substantive due process with respect to statutory speedy trial rights: Plaintiffs allege that

22 Defendant‟s policy violated the due process clause of the Fourteenth Amendment because it

23 deprived them of their statutory speedy trial rights without a hearing to determine the cause or

24 reasonableness of the denial. Id. at ¶ 60. They seek nominal damages. Id. Plaintiffs specify that

25 their speedy trial plains rely on California Penal Code §§ 825, 859b, and 1050, specifically, but

26 not exclusively, and on the legislative intent supporting California‟s statutory speedy trial scheme.

27
28 3 In addition to the allegations pertaining to Plaintiffs, the SAC contains allegations concerning the putative class they
represent.
6

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United States District Court Northern District of California

1 Id. at ¶ 10.

2

(3) Violation of the Fourteenth Amendment of the United States Constitution –

3 procedural due process with respect to statutory speedy trial rights: Plaintiffs repeat the

4 allegations in their second cause of action. Id. at ¶ 63.

5

(4) Violation of the Equal Protection Clause of the Fourteenth Amendment of the

6 United States Constitution: Plaintiffs allege that Defendant‟s policy denied them their right to a

7 prompt arraignment, their right to assistance of counsel, and their statutory speedy trial rights on

8 the basis of their indigence because similarly situated criminal defendants who could afford

9 private counsel were furnished prompt arraignments, were permitted to enter pleas at their first

10 appearance, were allowed to influence the probation department with favourable information

11 concerning bail in the days following arraignment, were immediately able to apply for bail, and

12 were immediately able to assert their statutory speedy trial rights and begin trial preparation. Id. at

13 ¶ 66. Plaintiffs seek nominal damages. Id.

14

(5) California Civil Rights Act, Civil Code §§ 52 and 52.1 – denial of statutory speedy

15 trial rights: Plaintiffs allege that Defendant‟s policies forced them to sacrifice their speedy trial

16 rights as a precondition to appointment of counsel, entitling them to a minimum of $4,000. Id. at ¶

17 69.

18

(6) California Code of Civil Procedure §§ 1085 and 1086 – writ of mandate to enforce

19 California Government Code § 27706: Plaintiffs allege that Defendant‟s policies violate

20 California Government Code § 27706, which requires the public defender to represent criminal

21 defendants at all stages of the proceedings, and seek a writ of mandate compelling Defendant to

22 represent all indigent, in custody defendants at the first appearance or a reasonable time thereafter.

23 Id. at ¶ 72.

24

C. The Motion

25

Defendant argues that Plaintiffs have failed to rectify the deficiencies in their Complaint.

26 Motion, 4. First, Defendant argues that there has been no violation of the Sixth Amendment‟s

27 right to assistance of counsel. Motion, 4-9. Defendant states that Article I, section 14 of the

28 California Constitution, which governs arraignments in felony prosecutions, provides in relevant

7

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1 part: “The magistrate shall immediately give the defendant a copy of the complaint, inform the

2 defendant of the defendant‟s right to counsel, allow the defendant a reasonable time to send for

3 counsel, and on the defendant‟s request read the complaint to the defendant.” Id. at 4-5.

4 Defendant asserts that the SAC is predicated on an alleged failure to provide counsel at a non-

5 critical stage. Id. at 5. In that instance, they argue that Plaintiffs must show prejudice to their

6 substantive rights as a result of the absence of counsel. Id. (citing McNeal v. Adams, 623 F.3d

7 1283, 1288 (9th Cir. 2010)). Defendant contends that Plaintiffs cannot do so. Id. In that vein,

8 Defendant argues that Plaintiffs cannot plausibly suggest that their lack of input into the bail

9 studies caused them prejudice as they would have been able to raise any bail rights at a subsequent

10 bail hearing. Id. at 5-6 (citing Cal. Penal Code § 1270.1(b)-(c); State of New Jersey v. Anthony

11 Fann, 239 N.J.Super. 507, 517-18, 520-21, 571 A.2d 1023 (1990)). Moreover, Defendant argues

12 that none of the allegations specific to Wade plausibly states a claim of prejudice. Id. at 7-9.

13

Second, Defendant argues that Plaintiffs cannot demonstrate that any of their state

14 statutory speedy trial rights because (1) the Court held in its previous Order that Plaintiffs‟ did not

15 allege a violation of California Penal Code § 859b because Plaintiffs did not allege that a

16 preliminary examination was not held within 10 court days of the date they were arraigned or pled,

17 whichever occurs later; (2) the Court held in its previous Order that California Penal Code § 1050

18 lacks the mandatory language to create a liberty interest protected by the Fourteenth Amendment;

19 and (3) California Penal Code § 825 does not mandate dismissal in the event of a violation. Id. at

20 9-10. As to § 825, Defendant also argues that she had no control over the time when Plaintiffs

21 were initially brought before the magistrate. Id. at 10. Moreover, Defendant contends that § 825

22 does not mandate that arraignment be completed when the criminal defendant is first brought

23 before the magistrate. Id.

24

Third, Defendant argues that Plaintiffs cannot establish a violation of the Fourteenth

25 Amendment based on the Equal Protection Clause because Defendant does not represent

26 individuals who can afford counsel with the exception of capital defendants and because a single

27 policy that does not distinguish between classes of individuals cannot support an equal protection

28 claim. Id. at 10-11.

8

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1

Fourth, Defendant contends that Plaintiffs remaining state law claims should be dismissed

2 without prejudice for lack of subject matter jurisdiction. Id. at 11. In the alternative, Defendant

3 argues that the state law claims are without merit because (1) Plaintiffs have failed to allege any

4 violation of their state speedy trial rights; and (2) Defendant complies fully with the directive of

5 California Government Code § 27706(a) to defend “[u]pon request of the defendant or upon order

6 of the court.” Id. at 11-12.

7

D. The Opposition

8

First, Plaintiffs argue that Defendant‟s policy is unconstitutional because counsel is

9 required at all critical stages, and arraignment is a critical stage in California. Plaintiffs‟ Response

10 in Opposition to Defendant‟s Rule 12(b)(6) Motion to Dismiss the Second Amended Complaint

11 (“Opposition”), 2. Plaintiffs contend that the Court erroneously overruled California law in its

12 previous Order by concluding that the initial appearance, including the initial portions of the

13 arraignment, is not a critical stage. Id. Plaintiffs begin by stating that critical stages are specific to

14 the jurisdiction, not to the defendant. Id. at 5 (citing Hamilton, 368 U.S. at 54, 82 S.Ct. 157, 7

15 L.Ed.2d 114). Plaintiffs further state that considerations regarding a specific defendant come into

16 play only when considerations of prejudice – in addition to the denial of counsel at a “critical

17 stage” – may be required to reverse a conviction. Id. at 5. Plaintiffs contend that any analysis of

18 prejudice is irrelevant to a civil action brought under § 1983. Id. Plaintiffs note that numerous

19 California courts have held that arraignment is a critical stage of the criminal proceedings entitling

20 the accused to an attorney, although the absence of counsel may not be such a grievous error that it

21 compels reversal of a conviction without showing of prejudice. Id. at 7 (collecting cases,

22 including People v. Cox, 193 Cal.App.3d 1434, 1440, 239 Cal.Rptr. 40 (1987)). In addition to

23 their argument that California precedent compels the conclusion that the arraignment is a critical

24 stage in the proceedings, Plaintiffs assert that arraignment is a critical stage because detainees

25 would benefit from guidance to avoid a forced continuance and because custody status is initially

26 determined. Id. at 8-9. However, Plaintiffs decline to re-litigate whether arraignment is a critical

27 stage of the proceedings in California. Id. at 9.

28

As to the waiting period, Plaintiffs state that Rothgery “point[s] the way” to the conclusion

9

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1 that counsel must be appointed “on the heels of the first appearance.” Id. at 10-11 (citing

2 Rothgery, 554 U.S. at 203-05, 128 S.Ct. 2578, 171 L.Ed.2d 366. Plaintiffs assert that each of the

3 three district court opinions interpreting Rothgery are inapposite. Id. at 10.

4

Moreover, Plaintiffs argue that the Court erred in concluding that the portions of the

5 arraignment that took place without the presence of counsel were not a critical stage of the

6 proceedings in themselves. Id. at 11-14. Plaintiffs state that the Sixth Amendment requires

7 counsel to be provided at every stage of a criminal proceeding where substantial rights of a

8 criminal accused may be affected. Id. at 11 (citing McNeal, 623 F.3d at 1286). Plaintiffs state that

9 prejudice is irrelevant to the determination of whether the stage is critical. Id. Plaintiffs argue that

10 the Court erroneously relied on Benford, because Benford is distinguishable based on its reliance

11 on the reversible per se standard as opposed to narrower question of harmless error. Id. at 2-3

12 (citing Benford, 574 U.S. at 1233 (“[W]e do not hold that a status conference never can be a

13 critical stage, but only that this one was not. Additionally, because we address here only

14 Defendant‟s claim that the absence of his counsel at the status conference constitutes per se

15 ineffective assistance of counsel, he may bring all other claims in a habeas proceeding, the validity

16 of which we do not consider here”)). In any event, to the extent that a showing of prejudice is

17 required, Plaintiffs contend that they have alleged prejudice. Id. at 14.

18

Second, Plaintiffs argue that Defendant violated the Fourteenth Amendment by

19 deliberately failing to assert their state statutory speedy trial rights. Id. at 14-18. Plaintiffs

20 contend that the Court overlooked the fact that the core value protected by California‟s speedy

21 trial scheme is time, and that once lost it can never be recovered. Id. at 14. Moreover, Plaintiffs

22 assert that the legislative intent behind the speedy trial statutes dictates that they be read as a

23 whole in light of their goal of preventing prolonged incarceration prior to a preliminary hearing.

24 Id. at 14-17 (citing People v. Kowalski, 196 Cal.App.3d 174, 178, 242 Cal.Rptr. 32 (1987); In re

25 Samano, 31 Cal.App.4th 984, 989-90, 37 Cal.Rptr.2d 491 (1995); Sykes v. Superior Court, 9

26 Cal.3d 83, 88, 106 Cal.Rptr. 786, 507 P.2d 90 (1973); People v. Martinez, 22 Cal.4th 750, 768 n.1,

27 94 Cal.Rptr.2d 381, 996 P.2d 32 (2000); People v. Valencia, 82 Cal.App.4th 139, 144-45, 98

28 Cal.Rptr.2d 37 (2000)). Plaintiffs state that a criminal defendant‟s right to a speedy trial may be

10

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1 denied by the failure of the state to provide public defenders so that an indigent must choose

2 between his right to a speedy trial and his right to representation by counsel. Id. at 16 (citing

3 People v. Johnson, 26 Cal.3d 557, 571, 162 Cal.Rptr. 431, 606 P.2d 738 (1980)). Plaintiffs

4 contend that Defendant subverted the statutory scheme by failing to appear at the initial

5 appearance. Id. at 17-18.

6

Third, Plaintiffs contend that they have stated a claim under the equal protection clause.

7 Id. at 18-19. Plaintiffs argue that the state cannot justify, in the face of strict scrutiny, a policy that

8 denies speedy trial rights to indigent people. Id. at 18-19 (citing Barsamyan v. Appellate Div. of

9 Superior Court of Los Angeles Cnty., 44 Cal.4th 960, 981-82, 81 Cal.Rptr.3d 265, 189 P.3d 271

10 (2008); Young v. Gnoss, 7 Cal.3d 18, 28, 101 Cal.Rptr. 533, 496 P.2d 445 (1972); People v.

11 Olivas, 17 Cal.3d 236, 251, 131 Cal.Rptr. 55, 551 P.2d 375 (1976); Evitts v. Lucey, 469 U.S. 387,

12 403-04, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985)).

13

E. The Reply

14

Defendant begins with Plaintiffs‟ Sixth Amendment claim. Reply Brief of Defendant in

15 Support of Motion to Dismiss Second Amended Complaint (“Reply”), 3-7. Defendant notes that

16 the Court did not hold in its prior Order that arraignment under California law is not a critical

17 stage. Id. at 4 n.3. Indeed, Defendant concedes that the second appearance wherein arraignment

18 was completed was a critical stage. Id. at 5 n.4. Regardless, Defendant states that the initial

19 appearance was not a critical stage for the reasons set out in the Court‟s prior Order. Id. at 4.

20 Defendant argues that Plaintiffs have not identified any contrary authority. Id. at 4-5 (collecting

21 and distinguishing cases). Because counsel was present at all critical stages, Defendant asserts

22 that Plaintiffs‟ were required to plead factual allegations to support the inference that the absence

23 of counsel until the second appearance resulted in prejudice to their criminal cases to plead a

24 violation of the Sixth Amendment. Id. at 6-7 (citing United States v. Gonzalez-Lopez, 548 U.S.

25 140, 144, 147, 150, 126 S.Ct. 2557, 165 L.Ed.2d 409 (2006); Hovey v. Ayers, 458 F.3d 892, 904

26 (9th Cir. 2006); McNeal, 623 F.3d at 1288-89).

27

Next, Defendant addresses the statutory speedy trial claim. Id. at 7-9. Defendant argues

28 that Plaintiffs cannot rely on California Penal Code §§ 859b and 1050 for the reasons set out in the

11

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1 Court‟s prior Order. Id. at 7. Defendant contends that Plaintiffs cannot rely on § 825 because they

2 have not adequately alleged a violation of that section and because it does not mandate dismissal

3 in the event of a violation. Id. Defendant notes that Plaintiffs argument relies, to some extent, on

4 the intent of the legislature. Id. at 7-8. Defendant asserts that the history of California Penal Code

5 § 1382 demonstrates that the legislature intended to permit delays such as the one in this case. Id.

6 at 8. Defendant states that § 1382(a)(2) provides speedy trial protections that, since 1965, have

7 been triggered by the date the criminal defendant is arraigned. Id. Prior to 1965, the statute had

8 used at least two different triggers. In 1977, a California Court of Appeal held that a multiple

9 hearing arraignment was not concluded for the purposes of § 1382 until the criminal defendant

10 was asked to plea. Id. (citing Valdes v. Municipal Court, 69 Cal.App.3d 434, 435-39, 138

11 Cal.Rptr. 50 (1977)). Thereafter, the legislature amended § 1382 but retained the arraignment

12 trigger. Id. (citing People v. Baca, 211 Cal.App.3d 675, 678, 259 Cal.Rptr. 566 (1989)).

13

Turning to the equal protection clause argument, Defendant contends that Plaintiffs rely on

14 an underlying violation of their speedy trial rights. Id. at 9-10. Because Defendant argues that

15 there was no such violation, Defendant asserts that the equal protection clause claim fails. Id. at

16 10.

17

Having addressed all federal claims, Defendant argues that the remaining state law claims

18 should be dismissed without prejudice for lack of subject matter jurisdiction. Id. at 10-11.

19

F. Supplemental Briefing

20

At the July 26, 2013 hearing, the Court requested supplemental briefing to address the

21 recent Ninth Circuit opinion in Lopez-Valenzuela v. County of Maricopa, __ F.3d __, 2013 WL

22 2995220 (9th Cir. June 18, 2013), which is discussed in more detail below. Defendant argues that

23 the Lopez-Valenzuela decision, and its underlying logic, supports the ruling in the prior Order. 24 Defendant‟s Supplemental Brief in Support of Motion (“Defendant‟s Supplemental”), 3.4

25

26 4 Defendant also uses the supplemental brief as a vehicle to press arguments concerning Wade‟s potential ability to 27 allege prejudice if he is given leave to amend. Defendant‟s Supplemental, 3-5. The Court did not invite further
argument on that issue, and Plaintiffs, properly understanding the Court‟s request, did not address the issue in their
28 supplemental brief. The Court does not consider these additional arguments Defendant raises in her supplemental
brief.
12

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1

Plaintiffs argue that Lopez-Valenzuela is distinguishable. The foundation of Plaintiffs‟

2 argument is that the Arizona procedure in Lopez-Valenzuela was held in accordance with the

3 statutory design, whereas the initial appearance in this case should have been a complete

4 arraignment in accordance with California law. Plaintiffs‟ Supplemental Brief re: Lopez-

5 Valenzuela v. County of Maricopa (“Plaintiffs‟ Supplemental”), 4-9. Plaintiffs distinguish the

6 initial appearances at issue in Lopez-Valenzuela from arraignment in California. Id. at 4.

7 Plaintiffs do not dispute that the Arizona legislature can provide for an initial appearance as

8 described in Lopez-Valenzuela, or that counsel would not be required at such an appearance. Id. at

9 4-5. Instead, Plaintiffs argue that Defendant usurped the role of the legislature by bifurcating the

10 California arraignment proceedings to impose an Arizona-style initial appearance. Id. at 4-5, 9.

11 III. ANALYSIS

12

A. Legal Standard

13

A complaint may be dismissed for failure to state a claim for which relief can be granted

14 under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Fed. R. Civ. P. 12(b)(6). “The

15 purpose of a motion to dismiss under Rule 12(b)(6) is to test the legal sufficiency of the

16 complaint.” N. Star. Int’l v. Ariz. Corp. Comm’n, 720 F.2d 578, 581 (9th Cir. 1983). In ruling on

17 a motion to dismiss under Rule 12(b)(6), the Court takes “all allegations of material fact as true

18 and construe[s] them in the light most favorable to the non-moving party.” Parks Sch. of Bus. v.

19 Symington, 51 F.3d 1480, 1484 (9th Cir. 1990).

20

Generally, the plaintiff‟s burden at the pleading stage is relatively light. Rule 8(a) requires

21 a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R.

22 Civ. P. 8(a)(2). The complaint need not contain “detailed factual allegations,” but must allege

23 facts sufficient to “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S.

24 662, 663, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S.

25 544, 547, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). The factual allegations must be definite

26 enough to “raise a right to relief above the speculative level on the assumption that all of the

27 complaint‟s allegations are true.” Twombly, 550 U.S. at 545, 127 S.Ct. 1955, 167 L.Ed.2d 929.

28 “[T]he tenet that a court must accept a complaint‟s allegations as true is inapplicable to threadbare

13

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1 recitals of a cause of action‟s elements, supported by mere conclusory statements.” Iqbal, 556

2 U.S. at 663, 129 S.Ct. 1937, 173 L.Ed.2d 868.

3

B. 42 U.S.C. § 1983

4

42 U.S.C. § 1983 provides a cause of action against any person who, under color of state

5 law, deprives another of any rights, privileges, or immunities secured by the Constitution or laws

6 of the United States. § 1983 is not a source of substantive rights, but merely a method for

7 vindicating federal rights established elsewhere. Graham v. Connor, 490 U.S. 386, 393-94, 109

8 S.Ct. 1865, 104 L.Ed.2d 443 (1989). To state a claim for a violation of § 1983, a plaintiff must

9 allege a deprivation of a constitutional right by a government official acting “under color of state

10 law.” Broam v. Bogan, 320 F.3d 1023, 1028 (9th Cir. 2003).

11

Plaintiffs sufficiently allege that Defendant, sued in her official capacity as the Public

12 Defender for Contra Costa County, acted “under the color of state law.” See Am. Mfrs. Mut. Ins.

13 Co. v. Sullivan, 526 U.S. 40, 50, 119 S.Ct. 977, 143 L.Ed.2d 130 (1999) (allegations against public

14 officials satisfy the state action requirement); Miranda v. Clark County, 319 F.3d 465, 469-71 (9th

15 Cir. 2003) (Public Defender is a state actor for the purposes of § 1983 when acting solely as the

16 administrative head of the agency, on behalf of the county, in determining how the overall

17 resources of the Public Defender‟s office will be spent).

18

“[A] local government body may be liable if it has a policy of inaction and such inaction

19 amounts to a failure to protect constitutional rights. [Citation]. However, the policy of inaction

20 must be more than mere negligence, [citation]; it must be a conscious or deliberate choice among

21 various alternatives. [Citation].” Mortimer v. Baca, 594 F.3d 714, 722 (9th Cir. 2010) (quoting

22 Berry v. Baca, 379 F.3d 764, 767 (9th Cir. 2004)); see also Oviatt v. Pearce, 954 F.2d 1470, 1474

23 (9th Cir. 1992). To impose liability based on a policy of deliberate inaction, the “plaintiff must

24 establish: (1) that he possessed a constitutional right of which he was deprived; (2) that the

25 municipality had a policy; (3) that this policy amounts to deliberate indifference to the plaintiff‟s

26 constitutional right; and (4) that the policy [was] the moving force behind the constitutional

27 violation.” Oviatt, 954 F.3d at 1474 (internal quotations omitted).

28 //

14

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1

C. Sixth Amendment Right to Counsel

2

As discussed below, Plaintiffs have not alleged facts that show a violation of their Sixth

3 Amendment right to counsel. Accordingly, Defendant‟s Motion to dismiss their first cause of

4 action, asserting a § 1983 claim for a violation of that right, is granted. Farrow‟s Sixth

5 Amendment claim is dismissed with prejudice. Wade‟s Sixth Amendment claim is dismissed with

6 leave to amend within the constraints set forth below.

7

1. Background Law

8

a. Attachment

9

The Sixth Amendment right to counsel in criminal prosecutions attaches when prosecution

10 begins. Rothgery, 554 U.S. at 198-99, 128 S.Ct. 2578, 171 L.Ed.2d 366 (citing McNeil v.

11 Wisconsin, 501 U.S. 171, 175, 111 S.Ct. 2204, 115 L.Ed.2d 158 (1991)). Prosecution begins with

12 the initiation of adversarial judicial criminal proceedings, “whether by way of formal charge,

13 preliminary hearing, indictment, information, or arraignment.” Id. at 198-99 (quoting United

14 States v. Gouveia, 467 U.S. 180, 188, 104 S.Ct. 2292, 81 L.Ed.2d 146 (1984)). Federal law

15 determines what suffices as a commitment to prosecute for purposes of the attachment of the right

16 to counsel. Id. at 207 (citing Moran, 475 U.S. at 429, n. 3 (“[T]he type of circumstances that

17 would give rise to the right would certainly have a federal definition”). The right to counsel

18 attaches at the initial appearance before a judicial officer, which is generally the hearing at which

19 “the magistrate informs the defendant of the charge in the complaint, and of various rights in

20 further proceedings,” and “determine[s] the conditions for pretrial release.” Id. (citing 1 W.

21 LaFave, J. Israel, N. King, & O. Kerr, Crim. P. § 1.4(g), p 135 (3d ed. 2007)).

22

b. Critical Stage Determination

23

Once the right to counsel attaches, the accused is entitled to appointed counsel during any

24 “critical stage” of the post-attachment proceedings. Rothgery, 554 U.S. at 212, 128 S.Ct. 2578, 25 171 L.Ed.2d 366. “[C]ourts are „require[d] … to conclude that a trial is unfair if the accused is 26 denied counsel at a critical stage of his trial.‟” Musladin v. Lamarque, 555 F.3d 830, 836 (9th Cir. 27 2009) (quoting United States v. Cronic, 466 U.S. 648, 659, 104 S.Ct. 2039, 80 L.Ed.2d 657 28 (1984)); see also Benford, 574 F.3d at 1232.

15

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1

A critical stage is a “stage of a criminal proceeding where substantial rights of a criminal

2 accused may be affected.” Hovey, 458 F.3d at 901 (quoting Mempa v. Rhay, 389 U.S. 128, 134,

3 88 S.Ct. 254, 19 L.Ed.2d 336 (1967)). While there is no definitive list of critical stages, decisions

4 of the United States Supreme Court identify certain stages as critical. See Iowa v. Tovar, 541 U.S.
5 77, 81, 124 S.Ct. 1379, 158 L.Ed.2d 209 (2004) (entry of a guilty plea); Gardner v. Florida, 430
6 U.S. 349, 358, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977) (sentencing); United States v. Wade, 388
7 U.S. 218, 236-37, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) (post-indictment lineup). Case law also
8 illustrates stages that are not critical. Gilbert v. California, 388 U.S. 263, 267, 87 S.Ct. 1951, 18
L.Ed.2d 1178 (1967) (taking a handwriting sample); United States v. Ash, 413 U.S. 300, 321, 93 9
S.Ct. 2568, 37 L.Ed.2d 619 (1973) (post-indictment photo lineup); Hovey, 458 F.3d at 902 (mid10
trial hearing on the competency of defendant‟s lawyer). 11
Courts decide whether a state criminal proceeding is critical by looking to the functions of 12
the proceeding under state law. See Hamilton, 368 U.S. at 54, 82 S.Ct. 157, 7 L.Ed.2d 114 13
(“Whatever may be the function and importance of arraignment in other jurisdictions, we have 14
said enough to show that in Alabama it is a critical stage in a criminal proceeding”); see also 15
United States ex rel. Cooper v. Reincke, 333 F.2d 608, 612 (2d Cir. 1964) (“The Connecticut 16
hearing in probable cause cannot, therefore, be characterized as critical as is arraignment in 17
Alabama”). 18
The Ninth Circuit has developed a three-factor test for determining whether a stage is 19
critical. Menefield, 881 F.2d at 698-99; Benford, 574 F.3d at 1232; McNeal v. Adams, 623 F.3d at 20
1289. Any one of these three factors may be sufficient to make a stage critical: (1) failure to 21
pursue strategies or remedies results in a loss of significant rights; (2) skilled counsel would be 22
useful in helping the accused understand the legal confrontation; and (3) the proceeding tests the 23
merits of the accused‟s case. Menefield, 881 F.2d at 699; Hovey, 458 F.3d at 901-02. In 24
reviewing the plaintiff‟s lack of counsel at a motion for a new trial, the Menefield court considered 25
the substantive rights in question and whether the presence of counsel would have helped the 26
defendant enforce those rights. Id. 27
First, Plaintiffs argue that there is a distinction between a “critical stage” where counsel is 28

16

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1 required by the Sixth Amendment and a critical stage where, pursuant to Cronic, prejudice is

2 presumed where counsel is absent. Opposition, 12-14. Plaintiffs argue that the Ninth Circuit‟s

3 three factor test only applies in the latter situations. Id. at 13 (citing McNeal, 623 F.3d at 1289-90

4 (Berzon, J., concurring in the judgment)). In McNeal, the majority opinion set out to clarify the

5 difference between a stage at which the defendant has a right to counsel and a critical stage

6 requiring per se reversal if counsel is absent. See McNeal, 623 F.3d at 1285. Without clearly

7 delineating the analysis, the McNeal majority first held that the proceeding at issue was not a

8 critical stage because it involved no “significant consequences” to the defendant‟s case. Id. at

9 at1288. The McNeal majority proceeded to conclude that the proceeding at issue was not a Cronic

10 critical stage applying the above-referenced three factor test. Id. at 1289. The concurring opinion

11 relied on Hovey in criticizing the majority for applying a “significant consequences” test as

12 opposed to determining whether the proceeding was “any stage of a criminal proceeding where

13 substantial rights of a criminal accused may be affected.” Id. at 1289-90. Hovey stated as follows:

14

We reject Hovey‟s claim that his Sixth Amendment right to counsel was violated because

15

he was represented only by conflicted counsel, and thus effectively unrepresented, during

16

the competency hearing. The right to counsel, and the “correlative right” to unconflicted

counsel, [citation], attach at all critical stages of a criminal prosecution. See, e.g., United

17

States v. Wade, 388 U.S. 218, 224-25, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). A critical

stage is any “stage of a criminal proceeding where substantial rights of a criminal accused

18

may be affected.” Mempa v. Rhay, 389 U.S. 128, 134, 88 S.Ct. 254, 19 L.Ed.2d 336

19

(1967); see also Bell v. Cone, 535 U.S. 685, 696, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002) (defining a critical stage as “a step of a criminal proceeding, such as arraignment, that

20

[holds] significant consequences for the accused”).

21

On the basis of Supreme Court precedent, principally Mempa and United States v. Ash, 413

U.S. 300, 309, 313, 93 S.Ct. 2568, 27 L.Ed.2d 619 (1973), we have distilled a three-factor

22

test for determining what constitutes a critical stage. We consider whether: (1) “failure to

23

pursue strategies or remedies results in a loss of significant rights,” (2) “skilled counsel would be useful in helping the accused understand the legal confrontation,” and (3) “the

24

proceeding tests the merits of the accused‟s case.” Menefield v. Borg, 881 F.2d 696, 698-

99 (9th Cir. 1989). The presence of any of these factors may be sufficient to render a stage

25

in the proceedings “critical.” Cf. Ash, 413 U.S. at 313, 93 S.Ct. 2568 (noting that the

relevant inquiry is “whether the accused require[s] aid in coping with legal problems or

26

assistance in meeting his adversary”) (emphasis added)).

27

28

17

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Based on the specific facts of this case, we conclude that the attorney competency hearing

1

…

2

3 Hovey, 458 F.3d at 901-902. The clear import of Hovey is that a proceeding is only a critical stage

4 wherein the right to counsel attaches if at least one of the three factors set forth in Menefield is

5 present. See also Menefield, 881 F.2d at 698-99 (deriving the three factor test to determine

6 whether the hearing at issue was a critical stage at which the Sixth Amendment provision of

7 effective assistance of counsel applied); Benford, 574 F.3d at 1232.

8

More recent Ninth Circuit precedent continues to apply the three-factor test to determine

9 whether state court criminal proceedings “are critical stages that trigger the Sixth Amendment

10 Right to Counsel.” See Lopez-Valenzuela, __ F.3d __, 2013 WL 2995220, at *11. In accordance

11 with the decisions running from Menefield to Lopez-Valenzuela, the Court concludes that the

12 three-factor test set forth above is properly applied in determining whether a particular state court

13 criminal proceeding is a “critical stage[] that trigger[s] the Sixth Amendment right to counsel.” Id.

14

Second, Plaintiffs contend that the Court should not apply the Ninth Circuit‟s three-factor

15 test to the state procedures in this case because California courts have already determined that 16 arraignment is a critical stage in the proceedings.5 The Court agrees that arraignment is a critical

17 stage of the proceedings. Nothing in its prior Order is to the contrary. However, on the facts

18 alleged, counsel was requested immediately after arraignment began and no further arraignment

19 proceedings were undertaken until counsel was present, at which time the arraignment was

20 completed. See Order, 15-16; Cal. Penal Code § 988; Chartruck v. Municipal Court, 50

21 Cal.App.3d 931, 123 Cal.Rptr. 816 (1975) (holding that arraignment is complete when the court

22 asks the defendant whether he pleads guilty or not guilty, rejecting decisions holding that

23 arraignment is complete upon entry of plea).

24

The cases on which Plaintiffs rely do not shed any light on whether the initial appearance

25
26 5 Plaintiffs implicitly contend that the question of whether a proceeding in California is a critical stage for the
purposes of the Sixth Amendment is a question of state law. They are incorrect. Federal principles govern the inquiry
27 concerning whether a state procedure is a critical stage. See, e.g., Musladin, 555 F.3d at 839-43; Benford, 574 F.3d at
1232 n.2 (noting that Musladin applied a more general formulation of the three-part test applied in the Ninth Circuit,
28 but stating that Musladin did not amount to a departure from that test). Of course, the analysis is specific to the state
procedure.
18

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Case 3:12-cv-06495-JCS Document 69 Filed 08/07/13 Page 19 of 35
1 in the present case, which did not include the entirety of the arraignment, was a critical stage of the 2 proceedings. See Cox, 193 Cal.App.3d at 1440, 239 Cal.Rptr. 40 (at the arraignment the criminal 3 defendant waived the reading of the information and the right to a speedy trial and entered a plea 4 of not guilty to all counts); In re Johnson, 62 Cal.2d 325, 328-29, 42 Cal.Rptr. 228, 398 P.2d 420 5 (1965) (criminal defendant entered guilty plea at arraignment without counsel and was sentenced 6 immediately after the other matters on the court‟s calendar for the day had been attended to); 7 Ingram v. Justice Court, 69 Cal.2d 832, 835, 838, 73 Cal.Rptr. 410, 447 P.2d 650 (1968) (holding 8 that the public defender‟s determination that a person is indigent is not subject to judicial review 9 where trial court refused to allow the public defender to represent the petitioner seeking to set 10 aside an eight-year-old conviction on the ground; stating in dicta that in the hypothetical situation 11 where a defendant seeks out the public defender for assistance prior to his first court appearance 12 the period preceding arraignment is a stage that is often of critical importance); People v. Viray, 13 134 Cal.App.4th 1186, 1190, 36 Cal.Rptr.3d 693 (2005) (interrogation by prosecutor on the 14 morning of criminal defendant‟s arraignment violated the Sixth Amendment right to counsel but 15 was insufficient to justify reversal); Phillips v. Seely, 43 Cal.App.4th 104, 117 Cal.Rptr. 863 16 (1974) (no critical stage analysis); People v. Ferry, 237 Cal.App.2d 880, 887, 890, 47 Cal.Rptr. 17 324 (1965) (holding (1) that defendant was indigent and entitled to representation by the public 18 defender; (2) that the public defender‟s duty to provide counsel ceases when defendant retains 19 private counsel; and (3) failing to find that the defendant was unrepresented at any critical stage); 20 In re Smiley, 66 Cal.2d 606, 615-16, 625, 58 Cal.Rptr. 579, 427 P.2d 179 (1967) (criminal 21 defendant was indigent at the time of trial, was not advised he could have an attorney appointed by 22 the court, and had not waived the right to counsel such that his constitutional right to counsel was 23 violated; stating that if the defendant is unrepresented at the time of arraignment the court must 24 ask him if he desires the aid of counsel and if he desires and is unable to employ counsel, the court 25 must assign counsel to defend him); People v. Cummings, 255 Cal.App.2d 341, 343, 346-47, 62 26 Cal.Rptr. 859 (1967) (criminal defendant was represented himself at arraignment, the preliminary 27 hearing, and trial; reversing conviction because there was no effective waiver of the right to 28 counsel); People v. Pettingill, 21 Cal.3d 231, 145 Cal.Rptr. 861, 578 P.2d 108 (1978) (criminal
19

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1 defendant was detained for prolonged custodial interrogation prior to arraignment); In re Brindle,

2 91 Cal.App.3d 660, 670 154 Cal.Rptr. 563 (1979) (trial court properly granted the public defender

3 the right to access the criminal defendants who were inmates in the California Men‟s Colony);

4 People v. Carlon, 161 Cal.App.3d 1193, 1196, 1196 n.2, 208 Cal.Rptr. 18 (1984) (holding that

5 refusal to appoint counsel at arraignment was error, but harmless error, where, at arraignment,

6 upon the request for counsel, the court informed the criminal defendant that the public defender

7 did not have anyone to staff the court and therefore asked him to enter a not guilty plea and set the

8 matter for pre-trial and jury trial); People v. Howell, 178 Cal.App.3d 268, 269-71, 223 Cal.Rptr.

9 818 (1986) (holding that an indigent accused who is provided counsel for the arraignment only

10 must be advised of and waive his right to appointed counsel at all subsequent stages of the

11 proceedings before the court may accept his guilty plea; criminal defendant entered guilty plea at

12 arraignment); Ng v. Superior Court, 4 Cal.4th 29, 36-37, 13 Cal.Rptr.2d 856, 840 P.2d 961 (1992)

13 (holding that the California Constitution, and related statutory provisions, do not require multiple

14 prompt arraignments where the criminal accused has been promptly arraigned in one county and is

15 being held there as a result of those charges). Thus, Plaintiffs have offered no authority for the

16 proposition that the initial appearance held in Contra Costa County was by itself a critical stage at

17 which counsel was required to be present.

18

Plaintiffs further argue that the Court cannot divide the arraignment into its constituent

19 portions and determine whether any constituent portion alone amounts to a non-critical stage. 20 However, the facts giving rise to this case are such that the arraignment was bifurcated.6 Plaintiffs

21 were unrepresented at the initial portion but represented at the continued arraignment. To

22 determine whether there has been a violation of the Sixth Amendment based on a deprivation of

23 counsel at a critical stage, the Court must ascertain whether the only hearing at which Plaintiffs

24 were unrepresented was a critical stage. In addition, the Court must ascertain whether the waiting

25 period following the initial appearance was a critical stage.

26

27 6 Plaintiffs argue that the Court must look to the jurisdictional practice, as opposed to the facts of an individual case, to 28 determine whether a given stage of the proceedings is critical. Yet Plaintiffs also allege that the practice throughout
the jurisdiction of Contra Costa County in the relevant time period was to divide the arraignment in this manner.
20

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c. Appointment of Counsel a Reasonable Time After Attachment

1

Where Counsel Was Present at All Subsequent Critical Stages

2

3

In Rothgery, the Supreme Court stated that “counsel must be appointed within a reasonable

4 time after attachment to allow for adequate representation at any critical stage before trial, as well

5 as at trial itself.” Rothgery, 554 U.S. at 212, 128 S.Ct. 2578, 171 L.Ed.2d 366. Rothgery did not

6 discuss a framework for conducting the analysis into what a reasonable time would be. Id. at 212

7 n.15 (“We do not here purport to set out the scope of an individual‟s postattachment right to the

8 presence of counsel. It is enough for present purposes to highlight that the enquiry into that right is

9 a different one from the attachment analysis”).

10

After Rothgery, federal district courts have three times addressed the issue of whether a

11 delay in the appointment of counsel is reasonable. In all three cases, the district court has declined

12 to find the delay – forty days, two months, and an unspecified period – unreasonable without proof

13 of actual prejudice:

14

Finally, although the right to counsel under the Sixth Amendment

15

attaches at the time of an arrestee's initial appearance, Rothgery v.

Gillespie County, Texas, 554 U.S. 191, 128 S.Ct. 2578, 171 L.Ed.2d

16

366 (2008), neither the Supreme Court nor the Fifth Circuit has

determined that counsel must be appointed within a specific period

17

of time thereafter. … All that the plaintiff has alleged in this case is

that he was not provided with appointed counsel for a period of forty

18

(40) days after his arrest. He fails to allege, however, that he

19

suffered any actual prejudice as a result of this delay or that, had an

attorney been appointed at an earlier time, a meritorious defense

20

might have been asserted resulting in his release or in the dismissal

of the charges levied against him. … Accordingly, in the absence of

21

any assertion of prejudice resulting from the alleged delay, this

22

Court concludes that the alleged 40-day delay in the appointment of counsel was not so unreasonable as to result in a Sixth Amendment

23

violation.

24 Grogen v. Gautreaux, 2012 U.S. Dist. LEXIS 120411, *9-*10 (M.D. La. July 11, 2012); see also

25 Hawkins v. Montague County, 2010 U.S. Dist. LEXIS 116361, *35 (N.D. Tex. Nov. 1, 2010)

26 (“The Court finds that the approximate two-month delay in receiving court-appointed counsel fails

27 to rise to the level of a constitutional violation based on the Sixth Amendment”); Wingo v.

28 Kaufman County, 2010 U.S. Dist. LEXIS 55865, *2-*3 (N.D. Tex. June 4, 2010) (“The court can

21

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1 not determine from plaintiff's complaint … whether the delay in appointment of counsel was

2 reasonable or whether plaintiff suffered any prejudice from the delay”). These decisions are

3 consistent with the Supreme Court‟s reference to ineffective assistance of counsel in Rothgery.

4 See Gonzalez-Lopez, 548 U.S. at 147, 126 S.Ct. 2557, 165 L.Ed.2d 409 (distinguishing the right to

5 effective assistance of counsel from the case the Court was addressing because “a violation of the

6 Sixth Amendment right to effective representation is not „complete‟ until the defendant is

7 prejudiced”); Strickland v. Washington, 466 U.S. 668, 692, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)

8 (“any deficiencies in counsel‟s performance must be prejudicial to the defense in order to

9 constitute ineffective assistance under the Constitution”).

10

2. Application to Facts

11

a. Attachment

12

Following Rothgery, the Court again concludes, on the basis of the facts alleged, that that

13 the right to counsel attached at the initial appearance. The parties earlier agreed on this point. See

14 Order, 13. At the initial appearance, the court asked each Plaintiff whether he could afford

15 counsel. SAC, ¶¶ 30, 39. Each responded that he could not and would like the court to appoint

16 counsel. Id. After the right to counsel attached, the court referred Plaintiffs cases to Defendant

17 and continued the arraignment to a later hearing date for “further arraignment.” Id. Neither

18 Plaintiff entered a plea. Id. Neither Plaintiff was represented until the further arraignment

19 hearing, where each Plaintiff was represented by counsel and entered a plea. Id. at ¶¶ 32-33, 44.

20

b. Critical Stage

21

i. Initial Appearance

22

In their Complaint, Plaintiffs alleged that the initial appearance consisted of (1) the court‟s

23 inquiry into whether Plaintiffs could afford counsel and whether Plaintiffs desired appointed

24 counsel; (2) referral of the matter to the Public Defender; and (3) a continuance. Complaint, ¶¶

25 31, 35. In their SAC, Plaintiffs add the new allegation that bail is set at the initial appearance.

26 SAC, ¶¶ 30, 39. Plaintiffs do not provide any detail into the manner in which bail is set at the

27 initial appearance. For example, they have not alleged whether facts are admitted or argument is

28 made as to bail at the initial appearance or whether bail is simply set pursuant to a previously set

22

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1 bail schedule. The Court again concludes that, on the facts alleged, the Sixth Amendment

2 permitted the events that actually transpired at the initial appearance to take place without the

3 presence of counsel, and permits a continuance for the appointment of counsel.

4

Lopez-Valenzuela is instructive. In the relevant portion of that opinion, the Ninth Circuit

5 addressed whether the Sixth Amendment right to counsel was triggered by initial appearances in

6 Arizona. Lopez-Valenzuela, 2013 WL 2995220, at *10-*11. At the initial appearance in Arizona

7 no plea is entered. Id. at *10. At the initial appearance, the commissioner must: ascertain the

8 criminal defendant‟s name and address; inform the defendant of the charges, the right to counsel,

9 and the right to remain silent; determine whether probable cause exists to believe that a crime was

10 committed (if the arrest was made without a warrant); appoint counsel if the defendant is eligible;

11 and determine release conditions, including an immigration status determination that can result in

12 certain felony defendants being precluded from obtaining bail. Id. at *1-*2, *10. Although the

13 bail determination was made at the initial appearance, any party can move for a reexamination of

14 the release conditions. Id. at *2. Pursuant to Arizona law, a hearing on such a motion shall be

15 held as soon as practicable but not later than seven days after filing. Id. In addition, if the court

16 determines that the arrestee “entered or remained in the United States illegally,” an evidentiary

17 hearing, known as a Simpson/Segura hearing, is held within twenty-four hours to determine

18 whether bail should be denied. Id. at *1. Arrestees are entitled to counsel at the Simpson/Segura

19 hearing. Id.

20

In Lopez-Valenzuela, the Ninth Circuit concluded that the Sixth Amendment right to

21 counsel was not triggered by the initial appearance in Arizona after applying the Menefield three-

22 factor test. As to the first factor, the court reasoned that the “only strategies available to the

23 defendant seeking to avoid pretrial detention were to deny the crime(s) alleged or that the

24 defendant has entered or remained in the United States illegally. But, as no plea is entered at an

25 [initial appearance] and the „initial appearance provides no opportunity for a defendant to present

26 evidence or make any argument regarding the law or evidence,‟ [citation], these are not remedies

27 available at the initial appearance. Rather, these are remedies available after the initial appearance

28 at a Simpson/Segura hearing, by which point counsel will have been appointed.” Id. at *11. With

23

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1 regard to the second factor, the court held that skilled counsel was unnecessary to help an accused

2 understand the purely administrative matters covered during the initial appearance. Id. Reaching

3 the third factor, the court concluded that the initial appearance did not test the merits of the

4 defendant‟s case, noting that no plea is entered and any discussion of immigration status is

5 undertaken for the sole purpose of determining whether a defendant is bondable. Id.

6

Plaintiffs‟ argument is that the initial appearance was a critical stage because, consistent

7 with California law, it should have been a complete arraignment. See Opposition, 5-14 (arguing

8 that arraignment in California is a critical stage and that the Court improperly excised the portions

9 held at the initial appearance in undertaking its analysis and applied the wrong legal standard to

10 the excised portions, not putting forward any argument that the proceedings held at the initial

11 appearance made it a critical stage of the proceedings); see also Plaintiffs‟ Supplemental, 4-8. As

12 discussed in more detail later in this Order, California law does not require that the entire

13 arraignment be completed at the initial appearance. Plaintiffs‟ reliance on the entirety of the

14 arraignment to establish a critical stage in effect concedes that nothing happened at the initial 15 appearance to make it a critical stage of the proceedings.7 Moreover, Plaintiffs‟ supplemental

16 brief appears to concede that the procedures at issue in this case would be proper if they had been

17 enacted by the California legislature. See Plaintiffs‟ Supplemental, 5, 9 (distinguishing Lopez-

18 Valenzuela from the present case because the procedure at issue in that case was enacted by the

19 Arizona legislature, not the Public Defender). If that is true, then there can be no Sixth

20 Amendment violation.

21

Even if California law requires the entire arraignment occur at the initial appearance, the

22 SAC in this case does not allege that the complete arraignment occurred. As in Lopez-Valenzuela,

23 the question before the Court here is whether the initial appearance held in Contra Costa County in

24 each of Plaintiffs‟ criminal cases was a critical stage of the proceedings such that they were

25 entitled to counsel under the Sixth Amendment. Plaintiffs have been given one opportunity to

26

27 7 At most, Plaintiffs argue that the Court applied the wrong standard in evaluating the initial appearance in its prior 28 Order. Opposition, 11-14. However, Plaintiffs do not assert any basis for concluding that the initial appearance in
itself was a critical stage.
24

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1 amend their Complaint to allege sufficiently that their initial appearances amounted to a critical

2 stage within the meaning of Menefield. They have not done so. Like in Lopez-Valenzuela: (1) as

3 discussed in more detail in this Court‟s prior Order, Plaintiffs have not alleged that the absence of

4 counsel to pursue strategies at the initial appearance could result in the loss of significant rights

5 because, as alleged, no rights can be lost at the initial appearance; (2) as alleged there was no legal

6 confrontation in the initial appearance after the accused requested counsel; and (3) nothing

7 occurred at the initial appearance that tested the merits of the accused‟s case. See Lopez-

8 Valenzuela, __ F.3d __, 2013 WL 299520, at *10-*11; Order, 16-18.

9

Indeed, the initial appearance in Lopez-Valenzuela was more substantial than the initial

10 appearance in this case. In Lopez-Valenzuela, like here, the defendant was advised of the charges,

11 offered counsel, and a bail determination was made. Unlike the procedure in California, however,

12 the Arizona procedure required the Commissioner to make a probable cause determination.

13 Nonetheless, the Ninth Circuit decided that the initial appearance in Arizona was not a critical

14 stage. In Plaintiffs‟ initial appearances, where only advice of the charges and the right to counsel,

15 and the setting of bail, occurred, that same conclusion is required.

16

This conclusion is buttressed by the practical implications of Plaintiffs‟ argument. If

17 Plaintiffs are correct, the Sixth Amendment would put the state in an impossible position:

18 Counsel must be present, whether available or not, and a continuance for appointment of counsel

19 (as happened here) would not remedy the constitutional violation. One can readily envision the

20 situation where the Public Defender has a conflict of interest, and conflict counsel is not available

21 for a period of time. Plaintiffs‟ argument would call this a deprivation of a defendant‟s Sixth

22 Amendment rights that could not be remedied. The Constitution imposes no such restriction.

23

For the above reasons, Plaintiffs‟ Sixth Amendment claim is dismissed with prejudice to

24 the extent it relies on the theory that the initial appearance was a critical stage of the proceedings.

25

ii. Waiting Period

26

The Sixth Amendment may be violated during the waiting period either because (1) the

27 waiting period contained, or was itself, a critical stage; or (2) the failure to appoint counsel at

28 some point during the waiting period prevented Plaintiffs from being adequately represented at a

25

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1 subsequent critical stage. First, the Court concludes, on the facts alleged, that the waiting period

2 did not contain, and was not, a critical stage.

3

In their Complaint, Plaintiffs did not allege any activity during the waiting period that

4 could have made that time frame a critical stage. Now, Plaintiffs allege (1) that the Probation

5 Department prepared a bail study during the waiting period; (2) that the bail study was an

6 influential report; and (3) that the bail study contained no favorable information because the

7 Probation Department could not ascertain that information in the absence of appointed counsel.

8 SAC, ¶¶ 31, 40.

9

The Court applies the three Menefield factors to the new allegations regarding the waiting

10 period. Plaintiffs still have not alleged that there was any legal confrontation during the waiting

11 period or that anything occurred to test the merits of their case during the waiting period. Rather,

12 the bail study allegations pertain to whether failure to pursue strategies or remedies could result in

13 the loss of significant rights. However, Plaintiffs do not allege that they could lose their ability to

14 present favorable evidence at a bail determination. Accordingly, on the facts alleged, the Court

15 cannot conclude that the preparation of the bail study in Contra Costa County is a critical stage in

16 the proceedings.

17

Second, Plaintiffs have not alleged that the failure to appoint counsel during the waiting

18 period prejudiced their representation at subsequent critical stages. Regarding Farrow, the SAC

19 contains only the general statement that the prosecutor‟s office had more time to prepare for the

20 preliminary hearing than defense counsel. See SAC, ¶ 34. Plaintiffs make no allegation that the

21 disparity in preparation time impacted Farrow‟s defense in any way. Thus, there is nothing in the

22 SAC from which to conclude that counsel was not appointed a reasonable time after attachment.

23 See Rothgery, 554 U.S. at 212, 128 S.Ct. 2578, 171 L.Ed.2d 366 (“counsel must be appointed

24 within a reasonable time after attachment to allow for adequate representation at any critical stage

25 before trial, as well as at trial itself”).

26

The allegations pertaining to Wade come closer to alleging that counsel was not appointed

27 at a reasonable time after attachment. Plaintiffs allege (1) that the delay in appointment of counsel

28 impinged Wade‟s ability to interview a material witness on an important Miranda issue in his case

26

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1 because her memory faded; and (2) allowed the prosecution to amend its complaint as of right.

2 SAC, ¶¶ 43, 45. Plaintiffs allege that this was prejudicial to Wade because (1) certain facts that

3 the witness may have remembered pertaining to a potential Miranda violation may have been

4 helpful to his defense; and (2) the amended complaint increased his potential exposure. Id.

5

First, as to Wade‟s inability to interview a material witness, Plaintiffs still have not alleged,

6 for example, how that inability affected, or could have affected, any subsequent proceedings in

7 Wade‟s case. On these allegations, there is no basis to conclude that the delay in the appointment

8 of counsel impacted Wade‟s representation at subsequent critical stages of his proceedings.

9 Moreover, Plaintiffs only allege that it is “possible” that the witness would have remembered the

10 relevant details of Wade‟s interrogation had appointment of counsel not been delayed. Plaintiffs

11 do not plead that such a scenario is plausible, nor do they provide any factual allegations to

12 support that possibility. For example, counsel interviewed the witness in question seven days after

13 appointment at the continued arraignment. There are no allegations that counsel would have

14 interviewed the witness earlier, or that the witness, who could not remember whether Miranda

15 warnings were given when interviewed twenty days after the arrest, would have remembered them

16 a week earlier. Though this scenario seems implausible to the Court, if Wade is in possession of

17 any such facts he may plead them. He must also plead the impact of this evidence on the progress

18 of his case, i.e. prejudice.

19

Second, the allegations pertaining to the prosecution‟s ability to amend its complaint as of

20 right also fail because Plaintiffs have not alleged any impact this had on any later proceedings.

21 Moreover, Plaintiffs have not, and cannot, plausibly alleged that the prosecution would not have

22 been able to amend the complaint to increase Wade‟s exposure even if he had entered a plea at the

23 initial appearance.

24

Wade will be given one more opportunity to allege that counsel was not “appointed within

25 a reasonable time after attachment to allow for adequate representation at any critical stage before

26 trial, as well as at trial itself.” See Rothgery, 554 U.S. at 212, 128 S.Ct. 2578, 171 L.Ed.2d 366.

27 Leave to amend shall be limited to additional facts (1) concerning the witness‟ faded memory; and

28 (2) any impact the witness‟ faded memory had on Wade‟s proceedings. As to Farrow, this claim

27

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1 is dismissed with prejudice.

2

D. Fourteenth Amendment Due Process as to State Speedy Trial Statutes

3

Plaintiffs‟ Fourteenth Amendment Due Process claims predicated on violations of

4 California Penal Code §§ 825, 859b, and 1050 are dismissed with prejudice.

5

a. Background Law

6

“Unless there is a breach of constitutional rights, … § 1983 does not provide redress in

7 federal court for violations of state law.” Samson v. City of Bainbridge Island, 683 F.3d 1051,

8 1060 (9th Cir. 2012) (quoting Schlette v. Burdick, 633 F.2d 920, 922 n.3 (9th Cir. 1980)). “[N]ot

9 every violation of state law amounts to an infringement of constitutional rights.” Id.

10

Plaintiffs seek to assert their statutory speedy trial rights, provided by the state of

11 California, through the Fourteenth Amendment. The Fourteenth Amendment provides that no

12 state shall “deprive any person of life, liberty, or property without due process of law…” U.S.

13 Const. amend. XIV, § 1. The Fourteenth Amendment contains both procedural and substantive

14 due process protections. United States v. Salerno, 481 U.S. 739, 746, 107 S.Ct. 2095, 95 L.Ed.2d

15 697 (1987).

16

i. Procedural Due Process

17

Courts analyze procedural due process claims in two steps: “[T]he first asks whether there

18 exists a liberty or property interest which has been interfered with by the State; the second

19 examines whether the procedures attendant upon that deprivation were constitutionally sufficient.”

20 Carver v. Lehman, 558 F.3d 869, 872 (9th Cir. 2008), cert. denied, __ U.S. __, 130 S.Ct. 466, 175

21 L.Ed.2d 313 (2009) (quoting Ky. Dep’t of Corr. v. Thompson, 490 U.S. 454, 460, 109 S.Ct. 1904,

22 104 L.Ed.2d 506 (1989)).

23

“A liberty interest may arise from either of two sources: the due process clause itself or

24 state law.” Id. (citing Toussaint v. McCarthy, 801 F.2d 1080, 1089 (9th Cir. 1986)). “[T]o create

25 a liberty interest protected by due process, the state law must contain: (1) substantive predicates

26 governing official decisionmaking, and (2) explicitly mandatory language specifying the outcome

27 that must be reached if the substantive predicates are met.” Bonin v. Calderon, 59 F.3d 815, 842

28 (9th Cir. 1995), cert. denied, 516 U.S. 1051, 116 S.Ct. 718, 133 L.Ed.2d 671 (1996) (internal

28

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1 quotation marks and citations omitted); Oviatt, 954 F.2d at 1474. Where “[t]he only mandatory

2 language in [the state statute at issue] concerns a procedural right …[, t]hat language cannot create

3 a liberty interest within the meaning of the Fourteenth Amendment because expectation of

4 receiving process is not, without more, a liberty interest protected by the Due Process Clause of

5 the Fourteenth Amendment.” Carver, 558 F.3d at 875 (internal quotation marks, footnote, italics,

6 and citations omitted); see also Marsh v. County of San Diego, 680 F.3d 1148, 1156 (9th Cir.

7 2012) (“to contain the requisite „substantive predicates,‟ „the state law at issue must provide more

8 than merely procedure, it must protect some substantive end‟”) (quoting Bonin, 59 F.3d at 842).

9

ii. Substantive Due Process

10

Substantive due process limits what the government may do in its legislative and executive

11 capacities. County of Sacramento v. Lewis, 523 U.S. 833, 846, 118 S.Ct. 1708, 140 L.Ed.2d 1043

12 (1998). Substantive due process “forbids the government from depriving a person of life, liberty,

13 or property in such a way that „shocks the conscience‟ or „interferes with the rights implicit in the

14 concept of ordered liberty.‟” Corales v. Bennett, 567 F.3d 554, 568 (9th Cir. 2009) (quoting

15 Nunez v. City of Los Angeles, 147 F.3d 867, 871 (9th Cir. 1998))”. Accordingly, “A substantive

16 due process claim „must, as a threshold matter, show a government deprivation of life, liberty, or

17 property.‟” Action Apartment Ass’n, Inc. v. Santa Monica Rent Control Bd., 509 F.3d 1020, 1026

18 (9th Cir. 2007) (quoting Nunez, 147 F.3d at 871).

19

iii. Statutory Speedy Trial Rights

20

California Penal Code §§ 859b, 1382, and 1050, governing the right to a speedy

21 preliminary hearing, the right to a speedy trial, and the procedure for granting continuances,

22 including a continuance of the preliminary hearing, are set forth in this Court‟s prior Order. See

23 Order, 24-26. In the SAC, Plaintiffs also assert a denial of their right to a prompt arraignment

24 pursuant to California Penal Code § 825. SAC, ¶ 10.

25

California Penal Code § 859 reads:

26

When a defendant is charged with the commission of a felony by written complaint

27

subscribed under oath and on file in a court in which a felony is triable, he or she shall, without unnecessary delay, be taken before a magistrate of the court in which the

28

complaint is on file. The magistrate shall immediately deliver to the defendant a copy of

29

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the complaint, inform the defendant that he or she has the right to have the assistance of

1

counsel, ask the defendant if he or she desires the assistance of counsel, and allow the

2

defendant reasonable time to send for counsel. … If the defendant desires and is unable to

employ counsel, the court shall assign counsel to defend him or her… . If it appears that

3

the defendant may be a minor, the magistrate shall ascertain whether that is the case, and if

the magistrate concludes that it is probable that the defendant is a minor, he or she shall

4

immediately either notify the parent or guardian of the minor … of the arrest, or appoint

5

counsel to represent the minor.

6 Cal. Penal Code § 859. In Ng, the California Supreme Court noted that § 859 has been described

7 as “in pari materia” with § 859b, and that § 859b applies only to persons in custody. Ng, 4 Cal.4th

8 at 38, 13 Cal.Rptr.2d 856, 840 P.2d 961. The court drew on that note as additional support for its

9 holding that a defendant in custody for charges in one county need not be immediately arraigned

10 in other counties. Id.

11

California Penal Code § 849(a) states:

12

When an arrest is made without a warrant by a peace officer or private person, the person

13

arrested, if not otherwise released, shall, without unnecessary delay, be taken before the

nearest or most accessible magistrate in the county in which the offense is triable, and a

14

complaint stating the charge against the arrested person shall be laid before such

magistrate.

15

16 Cal. Penal Code § 849.

17

California Penal Code § 825(a) provides:

18

(a)(1) Except as provided in paragraph (2), the defendant shall in all cases be taken before

19

a magistrate without unnecessary delay, and, in any event, within 48 hours after his or her arrest, excluding Sundays and holidays.

20 (2) When the 48 hours prescribed by paragraph (1) expire at a time when the court in

21

which the magistrate is sitting is not in session, that time shall be extended to include the

duration of the next court session on the judicial day immediately following. If the 48-

22

hour period expires at a time when the court in which the magistrate is sitting is in session,

23

the arraignment may take place at any time during that session. However, when the defendant‟s arrest occurs on a Wednesday after the conclusion of the day‟s court session,

24

and if the Wednesday is not a court holiday, the defendant shall be taken before the

magistrate not later than the following Friday, if the Friday is not a court holiday.

25

26 Cal. Penal Code § 825(a).

27

b. Application to Facts

28

In its prior Order, the Court dismissed Plaintiffs‟ constitutional claim predicated on the

30

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United States District Court Northern District of California

1 violation of their statutory speedy trial rights provided by California Penal Code §§ 859b, 1382,

2 1049.5, and 1050. In their SAC, Plaintiffs reassert liability under §§ 859b and 1050. SAC, ¶ 10.

3 Plaintiffs also add a theory of liability pursuant to § 825. As in the previous Order, the Court

4 concludes that Plaintiffs‟ arraignments were complete when they were asked to enter a plea at the

5 further arraignment hearing. Order, 26. Thus, for the same reasons discussed in the previous

6 Order, the Court again concludes that Plaintiffs have not alleged a violation of either § 859b or §

7 1050. See id. at 27-28. The Court does not address those issues again here.

8

Defendant makes two arguments for dismissing Plaintiffs‟ second and third causes of

9 action to the extent they are premised on § 825. First, that Defendant did not violate § 825

10 because the section does not require that arraignment be completed at the initial appearance.

11 Motion, 10; Reply, 9. Second, that § 825 lacks mandatory language specifying the outcome that

12 must be reached if the substantive predicates are met to create a cognizable liberty interest.

13 Motion, 10; Reply, 9. Plaintiffs fail to defend their § 825 theory in their Opposition, making no

14 mention of § 825. For that reason alone, the second and third causes of action predicated on a

15 violation of § 825 are dismissed without leave to amend. Moreover, even if § 825 creates a

16 cognizable liberty interest, the plain language of the statute mandates only that the criminal 17 accused be “taken before the magistrate” within the prescribed time limits. 8 Nothing in the statute 18 prohibits continuance of the arraignment by the court to allow for appointment of counsel.9

19

E. Fourteenth Amendment Equal Protection

20

For the reasons set out below, Plaintiffs‟ equal protection claim is dismissed with

21 prejudice.

22

1. Background Law

23

The Equal Protection Clause provides that no state shall “deny any person within its

24 jurisdiction the equal protection of the law.” U.S. Const. Amendment XIV, § 1. The Supreme

25

26 8 The alleged “blatant violation of Penal Code section 825” visited on Wade through his detention prior to his initial 27 court appearance is irrelevant to this section because Plaintiffs do not allege that Defendant had anything to do with
that violation. See SAC, ¶ 37.
28 9 To the extent § 1050 may have been implicated by the continuance, that “section is directory only and does not
mandate dismissal of an action by its terms.” Cal. Penal Code § 1050(l).
31

Case 3:12-cv-06495-JCS Document 69 Filed 08/07/13 Page 32 of 35

United States District Court Northern District of California

1 Court has noted that the Equal Protection Clause “is basically a direction that all persons similarly

2 situated should be treated alike.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439, 105

3 S.Ct. 3249, 87 L.Ed.2d 313 (1985).

4

A plaintiff may allege an equal protection violation one of several ways. First, a plaintiff

5 can demonstrate that the defendant intentionally discriminated on the basis of plaintiff‟s

6 membership in a protected class. See, e.g., Lee v. City of Los Angeles, 250 F.3d 668, 686 (9th Cir.

7 2001). Under this theory, a plaintiff must show that the defendant‟s actions were a result of the

8 plaintiff‟s membership in a suspect class. Thornton v. City of St. Helens, 425 F.3d 1158, 1167 (9th

9 Cir. 2005). Such actions are subjected to “strict scrutiny” and “will only be sustained if they are

10 suitably tailored to serve a compelling state interest.” City of Cleburne, 473 U.S. at 439, 105 S.Ct.

11 3249, 87 L.Ed.2d 313. Similar oversight is applied where state action “impinges on personal

12 rights,” otherwise framed as “fundamental rights,” protected by the Constitution. Id.

13

If the action does not involve a suspect classification, a plaintiff may establish an equal

14 protection claim by showing that similarly situated individuals were intentionally treated

15 differently without a rational relationship to a legitimate state purpose. Village of Willowbrook v.

16 Olech, 528 U.S. 562, 564, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000); see San Antonio School

17 District v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1972); Squaw Valley

18 Development Co. v. Goldberg, 375 F.3d 936, 944 (9th Cir. 2004) overruled on other grounds

19 Action Apt. Ass’n v. Santa Monica Rent Control Bd., 509 F.3d 1020, 1025 (9th Cir. 2007);

20 SeaRiver Mar. Fin. Holdings, Inc. v. Mineta, 309 F.3d 662, 679 (9th Cir. 2002). To state an equal

21 protection claim under this theory, a plaintiff must allege that: (1) the plaintiff is a member of an

22 identifiable class; (2) the plaintiff was intentionally treated differently from others similarly

23 situated; and (3) there is no rational basis for the difference in treatment. Village of Willowbrook,

24 528 U.S. at 564, 120 S.Ct. 1073, 145 L.Ed.2d 1060.

25

Several Supreme Court decisions have recognized violations of the Equal Protection

26 Clause where the state provides mandatory criminal procedures, such as an appeal as of right, but

27 in effect makes those procedures available only to those who can pay. See Evitts v. Lucey, 469

28 U.S. 387, 403-05, 105 S.Ct. 830, 83 L.Ed.2d 281 (1985) (interpreting Supreme Court precedent as

32

Case 3:12-cv-06495-JCS Document 69 Filed 08/07/13 Page 33 of 35

United States District Court Northern District of California

1 involving equal protection concerns “because the State treated a class of defendants-indigent ones-

2 differently for the purposes of offering them a meaningful appeal”) (citing Griffin v. Illinois, 351

3 U.S. 12, 17-18, 76 S.Ct. 585, 100 L.Ed. 891 (1956) (where the state in effect dismissed the

4 petitioner‟s appeal, which was taken as of right, because he could not afford a transcript it made

5 the right available only to the wealthy in violation of equal protection principles and also violated

6 due process because the disposition of the appeal was arbitrary); Douglas v. California, 372 U.S.

7 353, 357-58, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963) (procedure whereby indigent defendant must

8 demonstrate merit of case before obtaining counsel on appeal “does not comport with fair

9 procedure” – “[t]here is lacking that equality demanded by the Fourteenth Amendment where the

10 rich man, who appeals as of right, enjoys the benefit of counsel[], while the indigent, already

11 burdened by a preliminary determination that his case is without merit, is forced to shift for

12 himself”)). As Plaintiffs point out, the California Supreme Court has indicated in dicta that

13 understaffing a public defender‟s office may result in denying indigent defendants the equal

14 protection of the laws where the understaffing results in a violation of the defendants‟ state speedy

15 trial rights. See Barsamyan v. Appellate Div. of Superior Court, 44 Cal.4th 960, 981-82, 81

16 Cal.Rptr.3d 265, 189 P.3d 271 (2008) (citing People v. Johnson, 26 Cal.3d 557, 571-72, 162

17 Cal.Rptr. 431, 606 P.2d 738 (1982) (stating, in dicta, that treating conflicts in the public defender‟s

18 calendar as good cause for a delay extending the time for trial beyond that required by California

19 Penal Code § 1382 may result in denying indigent defendants the equal protection of the laws)).

20

2. Application to Facts

21

Plaintiffs allege that they were denied a prompt arraignment, their right to assistance of

22 counsel, and their statutory speedy trial rights on the basis of their indigence whereas similarly

23 situated criminal defendants who could afford private counsel were furnished prompt

24 arraignments, were permitted to enter pleas at their first appearance, were allowed to influence the

25 probation department with favorable information concerning bail circumstances in the days

26 following arraignment, were immediately able to apply for bail or release on their own

27 recognizance, were permitted to immediately assert their statutory speedy trial rights, and were

28 able to immediately begin preparation of their cases for future critical stages. SAC, ¶ 66.

33

Case 3:12-cv-06495-JCS Document 69 Filed 08/07/13 Page 34 of 35

United States District Court Northern District of California

1

Plaintiffs have not alleged that the Contra Costa County Public Defender, the only

2 Defendant in this case, treated any group or individual differently from any other group or 3 individual through the application of its policy prior to the filing of this case.10 Indeed, the Contra 4 Costa Public Defender‟s Office only represents indigent defendants and capital defendants.11

5 Because, as alleged, Defendant had one blanket policy that applied equally to each of its clients

6 during the relevant time period, Plaintiffs have not adequately pled a violation of the Equal

7 Protection Clause by Defendant.

8

F. Remaining State Law Claims

9

Under state law, Plaintiffs seek damages for an alleged violation of the California Bane

10 Act and seek a writ of mandate to compel Defendant to comply with California Government Code

11 § 27706. See Cal. Civ. Code §§ 51 et seq., 52, 52.1; Cal. Gov. Code § 27706. The Court has

12 jurisdiction over this action on the basis of the federal questions raised by the Complaint. See 28

13 U.S.C. § 1331. The Court‟s jurisdiction over the remaining state law claims relies on its

14 supplemental jurisdiction. See 28 U.S.C. § 1367(a). Having dismissed all claims over which it

15 has original jurisdiction, the court declines to exercise its supplemental jurisdiction over the state

16 law claims. See 28 U.S.C. § 1367(c)(3). Plaintiffs‟ fifth and sixth causes of action are dismissed

17 without prejudice for lack of subject matter jurisdiction.

18 //

19 //

20 //

21 //

22 //

23 //

24 //

25

26 10 In their SAC, Plaintiffs allege that Defendant now appears at the initial appearance to represent in-custody felony 27 defendants but continues to fail to do so with respect to in-custody misdemeanor defendants. SAC, ¶¶ 1-2. Plaintiffs
do not specify to which group they belong.
28 11 Plaintiffs do not allege that the policy has ever made any distinction between capital defendants and non-capital
defendants.
34

Case 3:12-cv-06495-JCS Document 69 Filed 08/07/13 Page 35 of 35

United States District Court Northern District of California

1 IV. CONCLUSION

2

For the foregoing reasons, Defendants Motion to Dismiss the SAC is granted. Farrow‟s

3 federal claims are dismissed with prejudice. The Court declines to exercise jurisdiction over

4 Farrow‟s state law claims, which are dismissed without prejudice and may not be reasserted in this

5 case. Wade will be given one more opportunity to amend his § 1983/Sixth Amendment claim, as

6 permitted in the body of this Order, and to reassert the same state law claims found in the SAC.

7 Any amended complaint shall be filed within twenty-one (21) days of this Order.

8

IT IS SO ORDERED.

9 Dated: August 7, 2013

10

11 _________________________________

12

JOSEPH C. SPERO

13

United States Magistrate Judge

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

35

 
 Farrow v. Contra Costa County, 799 Fed.Appx. 520 (2020)

799 Fed.Appx. 520 (Mem) This case was not selected for publication in West’s
Federal Reporter. See Fed. Rule of Appellate Procedure 32.1 generally governing citation of judicial decisions issued on or after Jan. 1, 2007. See also U.S.Ct. of App. 9th Cir.
Rule 36-3. United States Court of Appeals, Ninth Circuit.
John FARROW, on his behalf, and on behalf of all others similarly situated; Jerome Wade, on their behalf, and on behalf of others similarly situated,
Plaintiffs-Appellants, v.
CONTRA COSTA COUNTY, Defendant-Appellee, and
Robin Lipetzky, Contra Costa County Public Defender, Defendant.
No. 19-15152 |
Submitted March 26, 2020* San Francisco, California |
FILED March 30, 2020
Attorneys and Law Firms
Christopher Alan Martin, Martin Law Offices, Oakland, CA, for Plaintiffs - Appellants
David Cameron Baker, Office of the County Counsel, Contra Costa County, Martinez, CA, for Defendant Appellee
Appeal from the United States District Court for the Northern District of California, Joseph C. Spero, Magistrate Judge, Presiding, D.C. No. 3:12-cv-06495-JCS
Before: GOULD, CHRISTEN, and BRESS, Circuit Judges.

Appellants John Farrow and Jerome Wade appeal from the district court’s order granting Contra Costa County’s motion for summary judgment in a § 1983 action alleging Sixth Amendment violations based on the failure to provide counsel. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.1
1. The district court dismissed the plaintiffs’ § 1983 claim premised on a Sixth Amendment violation for failure to provide counsel at a critical stage because the court determined it was barred by Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). The plaintiffs waive their challenge to this ruling by not arguing this issue in their opening brief. See Austin v. Univ. of Oregon, 925 F.3d 1133, 1138-39 (9th Cir. 2019).
2. Whether framed as a policy or practice, the plaintiffs do not establish the district court erred by ruling that there was insufficient evidence the County violated the Sixth Amendment rights of criminal defendants by failing to provide counsel “within a ‘reasonable time after attachment to allow for adequate representation at any critical stage before trial.’ ” *521 Farrow v. Lipetzky, 637 F. App’x 986, 988 (9th Cir. 2016) (quoting Rothgery v. Gillespie County, 554 U.S. 191, 212, 128 S.Ct. 2578, 171 L.Ed.2d 366 (2008)). The plaintiffs also do not challenge the district court’s ruling that they did not show they suffered a Sixth Amendment violation based on their own experiences with delayed provision of counsel. See generally Bucklew v. Precythe, ––– U.S. ––––, 139 S. Ct. 1112, 1127, 203 L.Ed.2d 521 (2019).
3. The plaintiffs separately challenge the district court’s exclusion of expert evidence at summary judgment pursuant to Federal Rule of Evidence 702, but they do not establish that the court abused its discretion. See Gen. Elec. Co. v. Joiner, 522 U.S. 136, 143, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997).
AFFIRMED.
All Citations
799 Fed.Appx. 520 (Mem)

MEMORANDUM** 1

Farrow v. Contra Costa County, 799 Fed.Appx. 520 (2020)
Footnotes

*

The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P.

34(a)(2).

** This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

1

Because the parties are familiar with the facts and procedural history of this case, we do not recite them here.

2

 
 U.S. District Court California Northern District (San Francisco) CIVIL DOCKET FOR CASE #: 3:12-cv-06495-JCS

Farrow et al v. Lipetzky Assigned to: Magistrate Judge Joseph C. Spero Referred to: Magistrate Judge Jacqueline Scott Corley (Settlement) Case in other court: 13-16781
19-15152 Cause: 42:1983 Civil Rights Act

Date Filed: 12/21/2012 Date Terminated: 01/02/2019 Jury Demand: Both Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Plaintiff
John Farrow on his behalf, and on behalf of all others similarly situated

represented by Christopher Alan Martin Martin Law Offices 222 21 Orinda Way Ste. C Orinda, CA 94563 510-206-2142 Email: m305@icloud.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael E. Dietrick Law Offices of Michael Dietrick 765 Baywood Drive Suite 227 Petaluma, CA 94954 707 763-5019 Fax: 707 763-5022 Email: dietrick@pacbell.net LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael Emery Dietrick Attorney at Law 10 Keller Street, Suite 275 Petaluma, CA 94952 (707) 763-5019 Fax: (707) 763-5022

Plaintiff Jerome Wade on his behalf, and on behalf of all others similarly situated
V. Defendant Robin Lipetzky Contra Costa County Public Defender TERMINATED: 07/27/2017
Defendant Contra Costa County

LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Christopher Alan Martin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael E. Dietrick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Emery Dietrick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by D. Cameron Baker Office of the County Counsel County of Contra Costa 1025 Escobar Street, 3rd Floor Martinez, CA 94553 925-655-2280 Fax: 925-655-2266 Email: cameron.baker@cc.cccounty.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by D. Cameron Baker (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed

#

Docket Text

12/21/2012 12/21/2012 12/21/2012 01/04/2013 01/29/2013 01/31/2013
01/31/2013
01/31/2013

1 CLASS ACTION COMPLAINT; Demand for Jury Trial against Robin Lipetzky (Filing fee $ 350.00, receipt number 44611009832). Filed by Jerome Wade, John Farrow. (Attachments: # 1 Civil Cover Sheet) (gba, COURT STAFF) (Filed on 12/21/2012) (Entered: 12/27/2012)
2 Summons Issued as to Robin Lipetzky. (gba, COURT STAFF) (Filed on 12/21/2012) (Entered: 12/27/2012)
3 ADR SCHEDULING ORDER: Case Management Statement due by 3/15/2013. Case Management Conference set for 3/22/2013 01:30 PM in Courtroom G, 15th Floor, San Francisco. (gba, COURT STAFF) (Filed on 12/21/2012) (Entered: 12/27/2012)
4 CLERKS NOTICE To Plaintiffs re: Consent or Declination. Form due by 1/18/13. (klhS, COURT STAFF) (Filed on 1/4/2013) (Entered: 01/04/2013)
5 CONSENT/DECLINATION to Proceed Before a US Magistrate Judge by John Farrow.. (Martin, Christopher) (Filed on 1/29/2013) (Entered: 01/29/2013)
6 MOTION to Dismiss (DEFENDANT ROBIN LIPETZKY'S MOTION TO DISMISS COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS) filed by Robin Lipetzky. Motion Hearing set for 3/8/2013 09:30 AM in Courtroom G, 15th Floor, San Francisco before Magistrate Judge Joseph C. Spero. Responses due by 3/22/2013. Replies due by 3/29/2013. (Baker, D.) (Filed on 1/31/2013) (Entered: 01/31/2013)
7 Declaration of D. CAMERON BAKER in Support of 6 MOTION to Dismiss (DEFENDANT ROBIN LIPETZKY'S MOTION TO DISMISS COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS) filed byRobin Lipetzky. (Related document(s) 6 ) (Baker, D.) (Filed on 1/31/2013) (Entered: 01/31/2013)
8 Request for Judicial Notice re 6 MOTION to Dismiss (DEFENDANT ROBIN LIPETZKY'S MOTION TO DISMISS COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS), 7 Declaration in Support, filed byRobin Lipetzky. (Related document(s) 6 , 7 ) (Baker, D.) (Filed on 1/31/2013) (Entered: 01/31/2013)

01/31/2013 01/31/2013 02/01/2013 02/12/2013 02/12/2013
02/12/2013

9 Proposed Order re 6 MOTION to Dismiss (DEFENDANT ROBIN LIPETZKY'S MOTION TO DISMISS COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS), 7 Declaration in Support, 8 Request for Judicial Notice, ([PROPOSED] ORDER GRANTING DEFENDANT'S REQUEST FOR JUDICIAL NOTICE) by Robin Lipetzky. (Baker, D.) (Filed on 1/31/2013) (Entered: 01/31/2013)
10 Proposed Order re 6 MOTION to Dismiss (DEFENDANT ROBIN LIPETZKY'S MOTION TO DISMISS COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS), 9 Proposed Order, 7 Declaration in Support, 8 Request for Judicial Notice, ([PROPOSED] ORDER GRANTING DEFENDANT ROBIN LIPETZKY'S MOTION TO DISMISS COMPLAINT) by Robin Lipetzky. (Baker, D.) (Filed on 1/31/2013) (Entered: 01/31/2013)
11 CONSENT/DECLINATION to Proceed Before a US Magistrate Judge by Robin Lipetzky.. (Baker, D.) (Filed on 2/1/2013) (Entered: 02/01/2013)
12 ERRATA re 6 MOTION to Dismiss (DEFENDANT ROBIN LIPETZKY'S MOTION TO DISMISS COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS), 7 Declaration in Support, 8 Request for Judicial Notice, (NOTICE OF ERRATUM IN SUPPORT OF DEFENDANT'S MOTION TO DISMISS) by Robin Lipetzky. (Baker, D.) (Filed on 2/12/2013) (Entered: 02/12/2013)
13 Declaration of D. Cameron Baker in Support of 6 MOTION to Dismiss (DEFENDANT ROBIN LIPETZKY'S MOTION TO DISMISS COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS), 9 Proposed Order, 7 Declaration in Support, 12 Errata, 8 Request for Judicial Notice, 10 Proposed Order, (CORRECTED DECLARATION OF D. CAMERON BAKER IN SUPPORT OF DEFENDANT ROBIN LIPETZKY'S MOTION TO DISMISS) filed byRobin Lipetzky. (Attachments: # 1 Exhibit A-E)(Related document(s) 6 , 9 , 7 , 12 , 8 , 10 ) (Baker, D.) (Filed on 2/12/2013) (Entered: 02/12/2013)
14 AFFIDAVIT re 12 Errata, 13 Declaration in Support,, (PROOF OF SERVICE OF ERRATUM AND CORRECTED

02/14/2013
02/21/2013 02/21/2013 02/21/2013 02/22/2013 02/25/2013

DECLARATION by Robin Lipetzky. (Baker, D.) (Filed on 2/12/2013) (Entered: 02/12/2013)
15 CLERKS NOTICE Continuing Motion Hearing as to 6 MOTION to Dismiss (DEFENDANT ROBIN LIPETZKY'S MOTION TO DISMISS COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS). Case Management Statement due by 4/5/2013. Case Management Conference previously set for 3/22/13 at 1:30 PM has been re-set for 4/12/2013 09:30 AM in Courtroom G, 15th Floor, San Francisco. Motion Hearing re-set for 4/12/2013 at 09:30 AM in Courtroom G, 15th Floor, San Francisco before Magistrate Judge Joseph C. Spero. (klhS, COURT STAFF) (Filed on 2/14/2013) (Entered: 02/14/2013)
16 REPLY (re 6 MOTION to Dismiss (DEFENDANT ROBIN LIPETZKY'S MOTION TO DISMISS COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS) ) filed byRobin Lipetzky. (Baker, D.) (Filed on 2/21/2013) (Entered: 02/21/2013)
17 CERTIFICATE OF SERVICE by Robin Lipetzky re 16 Reply to Opposition/Response RE MOTION TO DISMISS COMPLAINT (Baker, D.) (Filed on 2/21/2013) (Entered: 02/21/2013)
18 *** FILED IN ERROR. REFER TO DOCUMENT 21 . *** RESPONSE (re 6 MOTION to Dismiss (DEFENDANT ROBIN LIPETZKY'S MOTION TO DISMISS COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS) ) Plaintiffs' Memorandum in Opposition filed byJohn Farrow, Jerome Wade. (Dietrick, Michael) (Filed on 2/21/2013) Modified on 2/26/2013 (fff, COURT STAFF). (Entered: 02/21/2013)
19 STIPULATION WITH PROPOSED ORDER PERMITTING LATE FILING OF PLAINTIFFS' OPPOSITION TO MOTION TO DISMISS filed by Robin Lipetzky. (Attachments: # 1 Certificate/Proof of Service TO STIPULATION TO LATE FILING)(Baker, D.) (Filed on 2/22/2013) (Entered: 02/22/2013)
20 Order, signed 2/25/13 by Magistrate Judge Joseph C. Spero granting 19 Stipulation Permitting Late Filing of Plaintiffs' Memo in Opp to Dft's Motion to Dismiss and Dft's Reply. Opp due 2/21/13. Reply due 2/28/13.(klhS, COURT STAFF) (Filed on 2/25/2013) (Entered: 02/25/2013)

02/25/2013 02/25/2013 02/25/2013 02/28/2013 04/05/2013 04/11/2013 04/12/2013
04/15/2013

Set/Reset Deadlines as to 6 MOTION to Dismiss (DEFENDANT ROBIN LIPETZKY'S MOTION TO DISMISS COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS). Responses due by 2/21/2013. Replies due by 2/28/2013. (klhS, COURT STAFF) (Filed on 2/25/2013) (Entered: 02/25/2013)
21 RESPONSE (re 6 MOTION to Dismiss (DEFENDANT ROBIN LIPETZKY'S MOTION TO DISMISS COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS) ) Corrected Version filed byJohn Farrow. (Martin, Christopher) (Filed on 2/25/2013) (Entered: 02/25/2013)
22 ERRATA Specifying clerical errors in document 18 by John Farrow. (Martin, Christopher) (Filed on 2/25/2013) (Entered: 02/25/2013)
23 REPLY (re 6 MOTION to Dismiss (DEFENDANT ROBIN LIPETZKY'S MOTION TO DISMISS COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS) ) SUPPLEMENTAL filed byRobin Lipetzky. (Baker, D.) (Filed on 2/28/2013) (Entered: 02/28/2013)
24 CASE MANAGEMENT STATEMENT JOINT filed by John Farrow, Jerome Wade. (Dietrick, Michael) (Filed on 4/5/2013) (Entered: 04/05/2013)
25 Certificate of Interested Entities by John Farrow, Jerome Wade (None to Report) (Dietrick, Michael) (Filed on 4/11/2013) (Entered: 04/11/2013)
26 Minute Entry: Initial Case Management Conference held on 4/12/2013 before Joseph C. Spero. Motion Hearing held on 4/12/2013 before Joseph C. Spero re 6 MOTION to Dismiss (DEFENDANT ROBIN LIPETZKY'S MOTION TO DISMISS COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS) filed by Robin Lipetzky. Motion SUBMITTED. Case Management Statement due by 7/5/2013. Further Case Management Conference set for 7/12/2013 at 01:30 PM in Courtroom G, 15th Floor, San Francisco. (Court Reporter JoAnn Bryce.) (klhS, COURT STAFF) (Date Filed: 4/12/2013) (Entered: 04/12/2013)
27 STATEMENT OF RECENT DECISION pursuant to Civil Local Rule 7-3.d Request for Approval to File Statement of Recent

04/15/2013 04/15/2013 04/15/2013 04/16/2013
04/16/2013 04/16/2013 04/16/2013 04/16/2013 04/18/2013 04/19/2013

Decision filed byJohn Farrow. (Martin, Christopher) (Filed on 4/15/2013) (Entered: 04/15/2013)

28 Declaration of Christopher Martin in support of Request to File Statement of Recent Decision filed byJohn Farrow. (Martin, Christopher) (Filed on 4/15/2013) (Entered: 04/15/2013)

29 Proposed Order regarding permission to file Statement of Recent Decision by John Farrow. (Martin, Christopher) (Filed on 4/15/2013) (Entered: 04/15/2013)

30 OBJECTIONS to re 27 Statement of Recent Decision OPPOSITION TO REQUEST FOR APPROVAL TO SUBMIT A STATEMENT OF RECENT DECISION by Robin Lipetzky. (Baker, D.) (Filed on 4/15/2013) (Entered: 04/15/2013)

31 CASE MANAGEMENT AND PRETRIAL ORDER: Case Management Statement due by 7/5/2013. Further Case Management Conference set for 7/12/2013 01:30 PM in Courtroom G, 15th Floor, San Francisco.. Signed by Judge Joseph C. Spero on 4/16/13. (klhS, COURT STAFF) (Filed on 4/16/2013) (Entered: 04/16/2013)

ORDER RE: REQUEST FOR PERMISSION TO FILE

32

STATEMENT OF RECENT DECISION. Signed by Judge

Joseph C. Spero on 4/16/13. (klhS, COURT STAFF) (Filed on

4/16/2013) (Entered: 04/16/2013)

33 STATEMENT OF RECENT DECISION pursuant to Civil Local Rule 7-3.d filed byJohn Farrow. (Martin, Christopher) (Filed on 4/16/2013) (Entered: 04/16/2013)

34 EXHIBITS Exhibit A filed byJohn Farrow. (Martin, Christopher) (Filed on 4/16/2013) (Entered: 04/16/2013)

35 EXHIBITS re 34 Exhibits, 33 Statement of Recent Decision Exhibit B filed byJohn Farrow. (Related document(s) 34 , 33 ) (Martin, Christopher) (Filed on 4/16/2013) (Entered: 04/16/2013)

36 TRANSCRIPT ORDER by Robin Lipetzky for Court Reporter Jo Ann Bryce. (Baker, D.) (Filed on 4/18/2013) (Entered: 04/18/2013)

37 Letter from Defendant Robin Lipetzky re Extension to Submit A Joint Letter Regarding The ADR Process . (Baker, D.) (Filed on 4/19/2013) (Entered: 04/19/2013)

04/19/2013
04/19/2013 04/22/2013 04/22/2013
04/23/2013 04/26/2013 04/29/2013 04/30/2013 05/07/2013 05/07/2013

38 Ex Parte Application for Leave to File Response to Plaintiffs' Statement of Recent Decision filed by Robin Lipetzky. (Attachments: # 1 Exhibit Exhibit A to Ex Parte Application)(Baker, D.) (Filed on 4/19/2013) (Entered: 04/19/2013)

39 Proposed Order re 38 Ex Parte Application for Leave to File Response to Plaintiffs' Statement of Recent Decision by Robin Lipetzky. (Baker, D.) (Filed on 4/19/2013) (Entered: 04/19/2013)

ORDER GRANTING re 37 Letter filed by Robin Lipetzky for

40

an extension of one week to submit joint letter on ADR

process. Signed by Judge Joseph C. Spero on 4/22/13. (klhS,

COURT STAFF) (Filed on 4/22/2013) (Entered: 04/22/2013)

41 Order, signed 4/22/13, by Magistrate Judge Joseph C. Spero granting 38 Ex Parte Application for Dft Robin Lipetzky to File a Response to Plaintiffs' Statement of Recent Decision. Response due 4/26/13.(klhS, COURT STAFF) (Filed on 4/22/2013) (Entered: 04/22/2013)

42 Letter from D. Cameron Baker Re: Settlement Conference Scheduling request before Magistrate Judge Corely. (Baker, D.) (Filed on 4/23/2013) (Entered: 04/23/2013)

43 RESPONSE to re 34 Exhibits, 35 Exhibits, 33 Statement of Recent Decision of Plaintiffs by Robin Lipetzky. (Baker, D.) (Filed on 4/26/2013) (Entered: 04/26/2013)

44 ORDER REFERRING CASE to Magistrate Judge Jacqueline S. Corley for Settlement. Signed by Judge Joseph C.Spero on 4/29/13. (klhS, COURT STAFF) (Filed on 4/29/2013) (Entered: 04/29/2013)

CASE REFERRED to Magistrate Judge Jacqueline Scott Corley for Settlement (ahm, COURT STAFF) (Filed on 4/30/2013) (Entered: 04/30/2013)

45 Minute Entry: Telephone Conference held on May 7, 2013 before Magistrate Judge Jacqueline Scott Corey (Date Filed: 5/7/2013). (Court Reporter: Not Reported) (ahm, COURT STAFF) (Date Filed: 5/7/2013) (Entered: 05/07/2013)

Set/Reset Hearing: Settlement Conference set for 5/24/2013 09:30 AM in Courtroom F, 15th Floor, San Francisco before Magistrate Judge Jacqueline Scott Corley. (ahm, COURT STAFF) (Filed on 5/7/2013) (Entered: 05/07/2013)

05/07/2013
05/08/2013 05/13/2013 05/14/2013 05/14/2013 05/24/2013 05/27/2013 05/28/2013

46 Transcript of Proceedings held on 4/12/13, before Judge Joseph C. Spero. Court Reporter Jo Ann Bryce, Telephone number 510-9105888, email joann_bryce@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter until the deadline for the Release of Transcript Restriction after 90 days. After that date, it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 8/5/2013. (Related documents(s) 36 ) (Bryce, Joann) (Filed on 5/7/2013) (Entered: 05/07/2013)

ORDER by Judge Joseph C. Spero granting 6 Motion to

47

Dismiss; dismissing complaint with leave to amend. (jcslc3,

COURT STAFF) (Filed on 5/8/2013) (Entered: 05/08/2013)

48 FIRST AMENDED COMPLAINT by John Farrow and Jerome Wade against Robin Lipetzky. Filed byJohn Farrow. (Martin, Christopher) (Filed on 5/13/2013) Modified on 5/15/2013 (gbaS, COURT STAFF). (Entered: 05/13/2013)

49 FIRST AMENDED COMPLAINT Revised title to reflect amendment against Robin Lipetzky. Filed by John Farrow. (Martin, Christopher) (Filed on 5/14/2013) Modified on 5/15/2013 (gbaS, COURT STAFF). (Entered: 05/14/2013)

50 ERRATA re 48 Amended Complaint, 49 Amended Complaint Changes title to FAC only by John Farrow. (Martin, Christopher) (Filed on 5/14/2013) (Entered: 05/14/2013)

51 Minute Entry: Settlement Conference held on May 24, 2013 before Magistrate Judge Jacqueline Scott Corley (Date Filed: 5/24/2013). Case did not settle. (Court Reporter: Not Reported) (ahm, COURT STAFF) (Date Filed: 5/24/2013) (Entered: 05/24/2013)

52 AMENDED COMPLAINT Second Amended Complaint against Robin Lipetzky. Filed byJohn Farrow. (Martin, Christopher) (Filed on 5/27/2013) (Entered: 05/27/2013)

53 STIPULATION WITH PROPOSED ORDER RE LEAVE TO FILE SECOND AMENDED COMPLAINT filed by Robin Lipetzky. (Attachments: # 1 Exhibit A)(Baker, D.) (Filed on 5/28/2013) (Entered: 05/28/2013)

05/29/2013 05/31/2013 06/13/2013 06/13/2013 06/24/2013
06/24/2013 06/25/2013 06/25/2013

54 Order, signed 5/29/13, by Magistrate Judge Joseph C. Spero granting 53 Stipulation For Leave to File Second Amended Complaint.(klhS, COURT STAFF) (Filed on 5/29/2013) (Entered: 05/29/2013)
55 CORRECTED SECOND AMENDED COMPLAINT Corrects numbering issue and two typos in earlier SAC against All Defendants. Filed by John Farrow. (Martin, Christopher) (Filed on 5/31/2013) Modified on 6/19/2013 (gbaS, COURT STAFF). (Entered: 05/31/2013)
56 MOTION to Dismiss Second Amended Complaint filed by Robin Lipetzky. Motion Hearing set for 7/26/2013 09:30 AM in Courtroom G, 15th Floor, San Francisco before Magistrate Judge Joseph C. Spero. Responses due by 6/27/2013. Replies due by 7/5/2013. (Baker, D.) (Filed on 6/13/2013) (Entered: 06/13/2013)
57 Proposed Order re 56 MOTION to Dismiss Second Amended Complaint by Robin Lipetzky. (Baker, D.) (Filed on 6/13/2013) (Entered: 06/13/2013)
58 CLERKS NOTICE Continuing Motion Hearing as to 56 MOTION to Dismiss Second Amended Complaint. Motion Hearing previously set for 7/26/13 at 9:30 AM, has been re-set for 7/26/2013 at 01:30 PM in Courtroom G, 15th Floor, San Francisco before Magistrate Judge Joseph C. Spero. This is a text only entry. There is no document associated with this Notice .(klhS, COURT STAFF) (Filed on 6/24/2013) (Entered: 06/24/2013)
59 STIPULATION WITH PROPOSED ORDER JOINT REQUEST TO CONTINUE JULY 12, 2013 CASE MANAGEMENT CONFERENCE filed by Robin Lipetzky. (Baker, D.) (Filed on 6/24/2013) (Entered: 06/24/2013)
60 Order, signed 6/25/13, by Magistrate Judge Joseph C. Spero granting 59 Stipulation to Continue 7/12/13 case management conference. Case management conference re-scheduled to 7/26/13 at 1:30 PM (klhS, COURT STAFF) (Filed on 6/25/2013) (Entered: 06/25/2013)
Set Deadlines/Hearings: Case Management Statement due by 7/19/2013. Further Case Management Conference set for 7/26/2013 01:30 PM in Courtroom G, 15th Floor, San Francisco. (klhS, COURT STAFF) (Filed on 6/25/2013) (Entered: 06/25/2013)

06/26/2013 07/01/2013 07/02/2013 07/02/2013 07/08/2013 07/18/2013 07/26/2013
08/02/2013
08/02/2013

61 RESPONSE (re 56 MOTION to Dismiss Second Amended Complaint ) filed byJohn Farrow. (Martin, Christopher) (Filed on 6/26/2013) (Entered: 06/26/2013)
62 STIPULATION WITH PROPOSED ORDER TO EXTEND DEADLINE FOR DEFENDANT TO FILE ITS REPLY TO ITS MOTION TO DISMISS SECOND AMENDED COMPLAINT filed by Robin Lipetzky. (Baker, D.) (Filed on 7/1/2013) (Entered: 07/01/2013)
63 Order, signed 7/2/13, by Magistrate Judge Joseph C. Spero granting 62 Stipulation To Extend Deadline for Defendant to File Its Reply to Its Motion to Dismiss Second Amended Complaint from 7/5/13 to 7/8/13.(klhS, COURT STAFF) (Filed on 7/2/2013) (Entered: 07/02/2013)
Set/Reset Deadlines as to 56 MOTION to Dismiss Second Amended Complaint. Replies due by 7/8/2013. (klhS, COURT STAFF) (Filed on 7/2/2013) (Entered: 07/02/2013)
64 REPLY (re 56 MOTION to Dismiss Second Amended Complaint ) filed byRobin Lipetzky. (Baker, D.) (Filed on 7/8/2013) (Entered: 07/08/2013)
65 JOINT CASE MANAGEMENT STATEMENT Update filed by John Farrow, Jerome Wade. (Dietrick, Michael) (Filed on 7/18/2013) (Entered: 07/18/2013)
66 Minute Entry: Motion Hearing held on 7/26/2013 before Joseph C. Spero re 56 MOTION to Dismiss Second Amended Complaint filed by Robin Lipetzky, Further Case Management Conference NOT held on 7/26/2013 before Joseph C. Spero. Motion submitted. Simultaneous briefs due 8/2/13. (Recording #FTR 1:33-1:48 (15 M).) (klhS, COURT STAFF) (Date Filed: 7/26/2013) (Entered: 07/26/2013)
67 Supplemental Brief re 66 Motion Hearing, Case Management Conference - Further,, 64 Reply to Opposition/Response, 56 MOTION to Dismiss Second Amended Complaint filed byRobin Lipetzky. (Related document(s) 66 , 64 , 56 ) (Baker, D.) (Filed on 8/2/2013) (Entered: 08/02/2013)
68 RESPONSE (re 56 MOTION to Dismiss Second Amended Complaint ) Supplemental Brief re: Lopez-Valenzuela v. Maricopa County filed byJohn Farrow. (Martin, Christopher) (Filed on 8/2/2013) (Entered: 08/02/2013)

08/07/2013 08/30/2013 09/03/2013
09/03/2013
09/04/2013 09/04/2013 09/09/2013 09/09/2013
09/09/2013

ORDER by Judge Joseph C. Spero granting 56 Motion to

69

Dismiss. (jcslc3, COURT STAFF) (Filed on 8/7/2013)

(Entered: 08/07/2013)

ORDER directing Clerk to close file. Signed by Judge Joseph

70

C. Spero on August 30, 2013. (jcslc3, COURT STAFF) (Filed

on 8/30/2013) (Entered: 08/30/2013)

71 ***ERRONEOUS ENTRY, PLEASE SEE DOCUMENT NUMBER 73*** NOTICE OF APPEAL to the Federal Circuit by John Farrow. Filing fee $ 455, receipt number 09717971251. Appeal Record due by 10/3/2013. (Martin, Christopher) (Filed on 9/3/2013) Modified on 9/4/2013 (gbaS, COURT STAFF). (Entered: 09/03/2013)

73 NOTICE OF APPEAL to the Ninth Circuit Court of Appeals John

Farrow, Jerome Wade. Appeal of Order 70 , Order on Motion

to Dismiss 69 . Filing fee $ 455, receipt number 09717971251. (gbaS, COURT STAFF) (Filed on 9/3/2013) (Entered: 09/04/2013)

72 Proposed Order [PROPOSED] JUDGMENT by Robin Lipetzky. (Baker, D.) (Filed on 9/4/2013) (Entered: 09/04/2013)

74 Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 73 Notice of Appeal. (Attachments: # 1 Notice of Appeal Notification Form) (gbaS, COURT STAFF) (Filed on 9/4/2013) (Additional attachment(s) added on 9/4/2013: # 2 Docket Sheet) (gbaS, COURT STAFF). (Entered: 09/04/2013)

75 CLERK'S JUDGMENT in favor of Robin Lipetzky against Jerome Wade, John Farrow (klhS, COURT STAFF) (Filed on 9/9/2013) (Entered: 09/09/2013)

76 ** CORRECTION: This transcript order for hearing 4/12/13 is cancelled - transcript filed at #46 and is unlocked ** Transcript Designation Form for proceedings held on 4/12/2013 before Judge Joseph C. Spero, re 73 Notice of Appeal, 74 Transmission of Notice of Appeal and Docket Sheet to USCA, Transcript due by 9/17/2013. (Martin, Christopher) (Filed on 9/9/2013) (Entered: 09/09/2013)

77 CORRECTION - This is a Transcript Order for 7/26/13 hearing before Judge Spero, not a Transcript Designation form.

09/10/2013 09/11/2013 09/16/2013
01/13/2016 01/13/2016 02/24/2016 10/04/2016

Transcript Designation Form for proceedings held on 7/26/2013 before Judge Joseph C. Spero, re 73 Notice of Appeal, 74 Transmission of Notice of Appeal and Docket Sheet to USCA, Transcript due by 9/17/2013. (Martin, Christopher) (Filed on 9/9/2013) Modified on 9/12/2013 (djc, COURT STAFF). (Entered: 09/09/2013)
78 USCA Case Number 13-16781 for 73 Notice of Appeal filed by John Farrow, Jerome Wade. (gbaS, COURT STAFF) (Filed on 9/10/2013) (Entered: 09/10/2013)
79 Transcript Designation Form for proceedings held on 4/12/2013; 7/26/2013 before Judge Joseph C. Spero, re 78 USCA Case Number, 73 Notice of Appeal Transcript due by 10/3/2013. (Martin, Christopher) (Filed on 9/11/2013) (Entered: 09/11/2013)
80 Transcript of Proceedings of Official Electronic Sound Recording held on 7-26-13, before Judge Joseph C. Spero. Court Reporter/Transcriber Katherine Wyatt, transcriber, Telephone number 925-212-5224. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 12/16/2013. (Related documents(s) 36 ) (kpw, COURT STAFF) (Filed on 9/16/2013) (Entered: 09/16/2013)
81 USCA Memorandum as to 73 Notice of Appeal filed by John Farrow, Jerome Wade. (gbaS, COURT STAFF) (Filed on 1/13/2016) (Entered: 01/13/2016)
82 ORDER of USCA as to 73 Notice of Appeal filed by John Farrow, Jerome Wade. (gbaS, COURT STAFF) (Filed on 1/13/2016) (Entered: 01/13/2016)
83 ORDER of USCA as to 73 Notice of Appeal filed by John Farrow, Jerome Wade (gbaS, COURT STAFF) (Filed on 2/24/2016) (Entered: 02/24/2016)
84 MANDATE of USCA as to 73 Notice of Appeal filed by John Farrow, Jerome Wade. (gbaS, COURT STAFF) (Filed on 10/4/2016) (Entered: 10/04/2016)

10/04/2016 10/06/2016
10/28/2016 11/08/2016
11/14/2016 11/15/2016
11/16/2016 11/16/2016

85 CLERK'S Letter Spreading Mandate to Counsel. (gbaS, COURT STAFF) (Filed on 10/4/2016) (Entered: 10/04/2016)
86 CLERK'S NOTICE. (This is a text-only entry generated by the court. There is no document associated with this entry.) Status Conference set for 11/4/2016 at 02:00 PM in Courtroom G, 15th Floor, San Francisco before Chief Magistrate Judge Joseph C. Spero. Any party requesting a continuance shall e-file a stipulation and proposed order. (klhS, COURT STAFF) (Filed on 10/6/2016) (Entered: 10/06/2016)
87 JOINT CASE MANAGEMENT STATEMENT filed by John Farrow, Jerome Wade. (Martin, Christopher) (Filed on 10/28/2016) (Entered: 10/28/2016)
88 Minute Entry for proceedings held before Chief Magistrate Judge Joseph C. Spero: Status Conference held on 11/4/2016. Case Management Statement due by 1/27/2017. Motion to Dismiss due by 11/18/2016. Motion for Class certification shall be filed no later than 6/1/17. Further Case Management Conference set for 2/3/2017 02:00 PM.FTR Time Not Reported. (klhS, COURT STAFF) (Date Filed: 11/8/2016) (Entered: 11/08/2016)
89 STIPULATION WITH PROPOSED ORDER re 55 Amended Complaint filed by John Farrow, Jerome Wade. (Martin, Christopher) (Filed on 11/14/2016) (Entered: 11/14/2016)
90 Order, signed as modified on 11/15/16, by Chief Magistrate Judge Joseph C. Spero granting 89 Stipulation to File Third Amended Complaint. Submitting party shall efile the Third Amended Complaint as a separate docket entry by 11/18/16. Amended complaint due by 11/18/2016.(klhS, COURT STAFF) (Filed on 11/15/2016) (Entered: 11/15/2016)
91 AMENDED COMPLAINT Third Amended Complaint against Robin Lipetzky. Filed byJerome Wade, John Farrow. (Martin, Christopher) (Filed on 11/16/2016) (Entered: 11/16/2016)
92 *** DISREGARD - HEARING NOT REPORTED/RECORDED *** TRANSCRIPT ORDER for proceedings held on 11/04/2016 before Magistrate Judge Joseph C. Spero by John Farrow, Jerome Wade, for Court Reporter FTR - San Francisco. (Martin, Christopher) (Filed on 11/16/2016) Modified on 11/16/2016 (rjdS, COURT STAFF). (Entered: 11/16/2016)

11/18/2016
11/18/2016 11/28/2016
12/06/2016 12/07/2016 12/09/2016 12/13/2016 12/15/2016 12/15/2016

93 MOTION to Dismiss Plaintiffs' Third Amended Complaint filed by Robin Lipetzky. Motion Hearing set for 1/13/2017 09:30 AM in Courtroom G, 15th Floor, San Francisco before Magistrate Judge Joseph C. Spero. Responses due by 12/2/2016. Replies due by 12/9/2016. (Attachments: # 1 Proposed Order)(Baker, D.) (Filed on 11/18/2016) (Entered: 11/18/2016)
94 Request for Judicial Notice re 93 MOTION to Dismiss Plaintiffs' Third Amended Complaint filed byRobin Lipetzky. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Proposed Order)(Related document(s) 93 ) (Baker, D.) (Filed on 11/18/2016) (Entered: 11/18/2016)
95 CASE MANAGEMENT AND PRETRIAL ORDER: Case Management Statement due by 1/27/2017. Motion for Class Certification shall be filed no later than 6/1/17. Further Case Management Conference set for 2/3/2017 02:00 PM Signed by Chief Magistrate Judge Joseph C. Spero on 11/28/16. (klhS, COURT STAFF) (Filed on 11/28/2016) (Entered: 11/28/2016)
96 STIPULATION WITH PROPOSED ORDER re 93 MOTION to Dismiss Plaintiffs' Third Amended Complaint filed by Robin Lipetzky. (Baker, D.) (Filed on 12/6/2016) (Entered: 12/06/2016)
97 Order by Chief Magistrate Judge Joseph C. Spero denying 96 Stipulation. The parties shall submit a revised stipulation no later than December 14, 2016. (jcslc2S, COURT STAFF) (Filed on 12/7/2016) (Entered: 12/07/2016)
98 OPPOSITION/RESPONSE (re 93 MOTION to Dismiss Plaintiffs' Third Amended Complaint ) filed byJohn Farrow, Jerome Wade. (Martin, Christopher) (Filed on 12/9/2016) (Entered: 12/09/2016)
99 STIPULATION WITH PROPOSED ORDER re 93 MOTION to Dismiss Plaintiffs' Third Amended Complaint filed by Robin Lipetzky. (Baker, D.) (Filed on 12/13/2016) (Entered: 12/13/2016)
100 Order, signed 12/15/16, by Chief Magistrate Judge Joseph C. Spero granting 99 Stipulation Respecting Motion to Dismiss Third Amended Complaint.(klhS, COURT STAFF) (Filed on 12/15/2016) (Entered: 12/15/2016)
Set/Reset Deadlines as to 93 MOTION to Dismiss Plaintiffs' Third Amended Complaint. Responses due by 12/9/2016. Replies due by 12/23/2016. Motion Hearing set for 1/20/2017 09:30 AM in Courtroom G, 15th Floor, San Francisco before Magistrate Judge

12/22/2016 12/30/2016 01/03/2017 01/13/2017 01/20/2017
02/03/2017

Joseph C. Spero. (klhS, COURT STAFF) (Filed on 12/15/2016) (Entered: 12/15/2016)
101 REPLY (re 93 MOTION to Dismiss Plaintiffs' Third Amended Complaint ) filed byRobin Lipetzky. (Baker, D.) (Filed on 12/22/2016) (Entered: 12/22/2016)
102 U.S. Supreme Court Notice that the petition for a writ of certiorari is denied. (gbaS, COURT STAFF) (Filed on 12/30/2016) (Entered: 12/30/2016)
103 CLERK'S NOTICE. (This is a text-only entry generated by the court. There is no document associated with this entry.) Case Management Statement due by 1/13/2017. Further Case Management Conference, previously set for 2/2/17 at 2:00 PM has been advanced to 1/20/2017 at 09:30 AM in Courtroom G, 15th Floor, San Francisco before Chief Magistrate Judge Joseph C. Spero. (klhS, COURT STAFF) (Filed on 1/3/2017) (Entered: 01/03/2017)
104 JOINT CASE MANAGEMENT STATEMENT Supplemental filed by John Farrow, Jerome Wade. (Dietrick, Michael) (Filed on 1/13/2017) (Entered: 01/13/2017)
105 Minute Entry for proceedings held before Chief Magistrate Judge Joseph C. Spero: Further Case Management Conference held on 1/20/2017. Motion Hearing held on 1/20/2017 re 93 MOTION to Dismiss Plaintiffs' Third Amended Complaint filed by Robin Lipetzky. Motion submitted. Close of Expert Discovery due by 9/15/2017. Close of Fact Discovery due by 7/3/2017. Case Management Statement due by 4/28/2017. Designation of Experts by party with burden of proof due by 8/1/2017. Motions and Daubert due by 11/1/2017. Rebuttal Reports due by 8/25/2017. Further Case Management Conference set for 5/5/2017 02:00 PM in Courtroom G, 15th Floor, San Francisco.FTR Time 9:36-10:30. (klhS, COURT STAFF) (Date Filed: 1/20/2017) Modified on 1/31/2019: Matter transcribed by Joan Columbini. (rjdS, COURT STAFF). (Entered: 01/23/2017)
106 CASE MANAGEMENT SCHEDULING ORDER:Close of Expert Discovery due by 9/15/2017. Close of Fact Discovery due by 7/3/2017. Case Management Statement due by 4/28/2017. Designation of Experts by party with burden of proof due by 8/1/2017. Motions and Daubert due by 11/1/2017. Rebuttal Reports due by 8/25/2017. Further Case Management Conference set for 5/5/2017 02:00 PM in Courtroom G, 15th

Floor, San Francis. Signed by Chief Magistrate Judge Joseph C. Spero on 2/3/17. (klhS, COURT STAFF) (Filed on 2/3/2017) (Entered: 02/03/2017)

04/28/2017 107

Order by Chief Magistrate Judge Joseph C. Spero granting in part and denying in part 93 Motion to Dismiss Third Amended Complaint. (jcslc2S, COURT STAFF) (Filed on 4/28/2017) (Entered: 04/28/2017)

04/28/2017

108 JOINT CASE MANAGEMENT STATEMENT Supplemental filed by John Farrow, Jerome Wade. (Dietrick, Michael) (Filed on 4/28/2017) (Entered: 04/28/2017)

05/08/2017

109 Minute Entry for proceedings held before Chief Magistrate Judge Joseph C. Spero: Further Case Management Conference held on 5/5/2017. Case Management Statement due by 9/15/2017. Further Case Management Conference set for 9/22/2017 02:00 PM in Courtroom G, 15th Floor, San Francisco.FTR Time Not Reported. Plaintiff Attorney Michael Dietrick, Chris Martin. Defendant Attorney Cameron Baker. Attachment Minute Order.(klhS, COURT STAFF) (Date Filed: 5/8/2017) (Entered: 05/08/2017)

07/07/2017

110 Letter from JOINT DISCOVERY LETTER . (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H)(Baker, D.) (Filed on 7/7/2017) Modified on 7/11/2017 (klhS, COURT STAFF). (Entered: 07/07/2017)

07/11/2017

111 CLERK'S NOTICE. Motion Hearing as to 110 Joint Discovery Letter Brief set for 7/14/2017 09:30 AM in Courtroom G, 15th Floor, San Francisco before Chief Magistrate Judge Joseph C. Spero. (This is a text-only entry generated by the court. There is no document associated with this entry.), (klhS, COURT STAFF) (Filed on 7/11/2017) (Entered: 07/11/2017)

07/14/2017

112 Minute Entry for proceedings held before Chief Magistrate Judge Joseph C. Spero: Discovery Motion Hearing held on 7/14/2017 re 110 Discovery Letter Brief filed by Robin Lipetzky ; granting in part and denying in part 110 Discovery Letter Brief.FTR Time 9:55-10:29 and 11:30-11:33. Plaintiff Attorney Michael Dietrick & Chris Martin. Defendant Attorney Cameron Baker. Attachment Minute Order.(klhS, COURT STAFF) (Date Filed: 7/14/2017) Modified on 7/20/2017: Matter transcribed by Joan Columbini. (rjdS, COURT STAFF). (Entered: 07/14/2017)

07/18/2017 07/20/2017 07/25/2017 07/27/2017 08/18/2017
08/28/2017

113 ANSWER of Defendant Robin Lipetzky to 91 Third Amended Complaint by Robin Lipetzky. (Baker, D.) (Filed on 7/18/2017) Modified on 7/19/2017 (gbaS, COURT STAFF). (Entered: 07/18/2017)
114 TRANSCRIPT ORDER for proceedings held on 07/14/2017 before Magistrate Judge Joseph C. Spero by Robin Lipetzky, for Court Reporter FTR - San Francisco. (Baker, D.) (Filed on 7/20/2017) (Entered: 07/20/2017)
115 STIPULATION and Order to Extend Time for Disclosure of Experts and to Substitute Contra Costa County as named Defendant by John Farrow, Jerome Wade. (Dietrick, Michael) (Filed on 7/25/2017) Modified on 7/25/2017 (gbaS, COURT STAFF). (Entered: 07/25/2017)
116 ORDER GRANTING re 115 Stipulation to Extend Time for Disclosure of Experts and to Substitute Contra Costa County as named Defendant filed by John Farrow, Jerome Wade Designation of Experts due by 8/15/2017. Rebuttal Reports due by 9/1/2017.. Signed by Chief Magistrate Judge Joseph C. Spero on 7/27/17. (klhS, COURT STAFF) (Filed on 7/27/2017) (Entered: 07/27/2017)
117 Transcript of Proceedings held on July 14, 2017, before Judge Joseph C. Spero. Court Reporter/Transcriber Joan Marie Columbini, CSR, RPR, telephone number (510) 367-3043, joan.columbini.csr@gmail.com. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re 114 Transcript Order ) Redaction Request due 9/8/2017. Redacted Transcript Deadline set for 9/18/2017. Release of Transcript Restriction set for 11/16/2017. (Related documents(s) 114 ) (Columbini, Joan) (Filed on 8/18/2017) (Entered: 08/18/2017)
118 Stipulation and Order to Extend Time for Disclosure of Experts and to Modify and set Briefing Schedule for Dispositive Motions by John Farrow, Jerome Wade. (Dietrick, Michael) (Filed on 8/28/2017) Modified on 8/28/2017 (gbaS, COURT STAFF). (Entered: 08/28/2017)

09/12/2017 09/12/2017 09/15/2017 09/15/2017 09/22/2017
11/16/2017 11/16/2017 11/22/2017

119 Proposed Order Stipulation re Scheduling by John Farrow, Jerome Wade. (Dietrick, Michael) (Filed on 9/12/2017) (Entered: 09/12/2017)
120 ORDER granting 119 stipulation regarding deadlines. Signed by Chief Magistrate Judge Joseph C. Spero on September 12, 2017. (jcslc2S, COURT STAFF) (Filed on 9/12/2017) (Entered: 09/12/2017)
121 JOINT CASE MANAGEMENT STATEMENT Supplemental filed by John Farrow, Jerome Wade. (Dietrick, Michael) (Filed on 9/15/2017) (Entered: 09/15/2017)
Set Deadlines/Hearings: Close of Expert Discovery due by 10/20/2017. Designation of Experts due by 9/13/2017. (klhS, COURT STAFF) (Filed on 9/15/2017) (Entered: 09/15/2017)
122 Minute Entry for proceedings held before Chief Magistrate Judge Joseph C. Spero: Further Case Management Conference held on 9/22/2017. Dispositive Motion hearing set for 1/19/18 at 9:30 AM.
FTR Time: Not Reported.
Plaintiff Attorney: Michael Dietrick, Chris Martin.
Defendant Attorney: Cameron Baker.
(This is a text-only entry generated by the court. There is no document associated with this entry.) (klhS, COURT STAFF) (Date Filed: 9/22/2017) (Entered: 09/22/2017)
123 Proposed Order Stipulation and Order to Increase Page Limitation by John Farrow, Jerome Wade. (Dietrick, Michael) (Filed on 11/16/2017) (Entered: 11/16/2017)
124 ORDER granting as modified 123 stipulation to modify page limits. Signed by Chief Magistrate Judge Joseph C. Spero on November 16, 2017. (jcslc2S, COURT STAFF) (Filed on 11/16/2017) (Entered: 11/16/2017)
125 MOTION for Summary Judgment , MOTION for Partial Summary Judgment filed by John Farrow, Jerome Wade. Motion Hearing set for 1/19/2018 09:30 AM in Courtroom G, 15th Floor, San Francisco before Magistrate Judge Joseph C. Spero. Responses due by 12/12/2017. Replies due by 12/22/2017. (Attachments: # 1 Declaration, # 2 Exhibit, # 3 Proposed

11/22/2017 11/22/2017 11/22/2017 11/22/2017 11/22/2017 11/22/2017

Order)(Martin, Christopher) (Filed on 11/22/2017) (Entered: 11/22/2017)
126 MOTION to Exclude Testimony of Plaintiffs' Expert Robert Boruchowitz filed by Contra Costa County. Motion Hearing set for 1/19/2018 09:00 AM in Courtroom G, 15th Floor, San Francisco before Magistrate Judge Joseph C. Spero. Responses due by 12/6/2017. Replies due by 12/13/2017. (Attachments: # 1 Proposed Order Granting Defendant Contra Costa County's Motion to Exclude Testimony of Plaintiffs' Expert)(Baker, D.) (Filed on 11/22/2017) (Entered: 11/22/2017)
127 Declaration of D. Cameron Baker in Support of 126 MOTION to Exclude Testimony of Plaintiffs' Expert Robert Boruchowitz filed byContra Costa County. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Related document(s) 126 ) (Baker, D.) (Filed on 11/22/2017) (Entered: 11/22/2017)
128 MOTION for Summary Judgment OR PARTIAL SUMMARY JUDGMENT filed by Contra Costa County. Motion Hearing set for 1/19/2018 09:00 AM in Courtroom G, 15th Floor, San Francisco before Magistrate Judge Joseph C. Spero. Responses due by 12/12/2017. Replies due by 12/22/2017. (Baker, D.) (Filed on 11/22/2017) (Entered: 11/22/2017)
129 Declaration of D. CAMERON BAKER in Support of 128 MOTION for Summary Judgment OR PARTIAL SUMMARY JUDGMENT filed byContra Costa County. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I)(Related document(s) 128 ) (Baker, D.) (Filed on 11/22/2017) (Entered: 11/22/2017)
130 EXHIBITS re 129 Declaration in Support, filed byContra Costa County. (Attachments: # 1 Exhibit K, # 2 Exhibit L, # 3 Exhibit M, # 4 Exhibit N, # 5 Exhibit O, # 6 Exhibit P, # 7 Exhibit Q, # 8 Exhibit R, # 9 Exhibit S, # 10 Exhibit T, # 11 Exhibit U, # 12 Exhibit V, # 13 Exhibit W)(Related document(s) 129 ) (Baker, D.) (Filed on 11/22/2017) (Entered: 11/22/2017)
131 Declaration of ROBIN LIPETZKY in Support of 128 MOTION for Summary Judgment OR PARTIAL SUMMARY JUDGMENT filed byContra Costa County. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L,

11/22/2017 11/27/2017
11/27/2017
11/27/2017 12/04/2017 12/12/2017 12/12/2017 12/12/2017

# 13 Exhibit M)(Related document(s) 128 ) (Baker, D.) (Filed on 11/22/2017) (Entered: 11/22/2017)
132 Proposed Order re 128 MOTION for Summary Judgment OR PARTIAL SUMMARY JUDGMENT by Contra Costa County. (Baker, D.) (Filed on 11/22/2017) (Entered: 11/22/2017)
Electronic filing error. Corrected by Clerk's Office. No further action is necessary. Re: 126 MOTION to Exclude Testimony of Plaintiffs' Expert Robert Boruchowitz filed by Contra Costa County, 128 MOTION for Summary Judgment OR PARTIAL SUMMARY JUDGMENT filed by Contra Costa County. Motions set for incorrect hearing time. (klhS, COURT STAFF) (Filed on 11/27/2017) (Entered: 11/27/2017)
133 CLERKS NOTICE CHANGING TIME as to 126 MOTION to Exclude Testimony of Plaintiffs' Expert Robert Boruchowitz , 128 MOTION for Summary Judgment OR PARTIAL SUMMARY JUDGMENT. Motion Hearing re-set for 1/19/2018 09:30 AM in Courtroom G, 15th Floor, San Francisco before Magistrate Judge Joseph C. Spero. (This is a text-only entry generated by the court. There is no document associated with this entry.) (klhS, COURT STAFF) (Filed on 11/27/2017) (Entered: 11/27/2017)
Set/Reset Deadlines as to 125 MOTION for Summary Judgment MOTION for Partial Summary Judgment . Motion Hearing set for 1/19/2018 09:30 AM before Magistrate Judge Joseph C. Spero. (klhS, COURT STAFF) (Filed on 11/27/2017) (Entered: 11/27/2017)
134 EXHIBITS filed byJohn Farrow, Jerome Wade. (Martin, Christopher) (Filed on 12/4/2017) (Entered: 12/04/2017)
135 OPPOSITION/RESPONSE (re 128 MOTION for Summary Judgment OR PARTIAL SUMMARY JUDGMENT ) filed byJohn Farrow, Jerome Wade. (Attachments: # 1 Exhibit Bates stamped exhibits)(Martin, Christopher) (Filed on 12/12/2017) (Entered: 12/12/2017)
136 OPPOSITION/RESPONSE (re 126 MOTION to Exclude Testimony of Plaintiffs' Expert Robert Boruchowitz ) filed byJohn Farrow, Jerome Wade. (Attachments: # 1 Exhibit)(Martin, Christopher) (Filed on 12/12/2017) (Entered: 12/12/2017)
137 OPPOSITION/RESPONSE (re 125 MOTION for Summary Judgment MOTION for Partial Summary Judgment ) filed

12/12/2017
12/20/2017 12/22/2017 12/22/2017 12/22/2017 01/19/2018

byContra Costa County. (Baker, D.) (Filed on 12/12/2017) (Entered: 12/12/2017)
138 DECLARATION of D. CAMERON BAKER in Opposition to 125 MOTION for Summary Judgment MOTION for Partial Summary Judgment SUPPLEMENTAL DECLARATION OF D. CAMERON BAKER IN OPPOSITION TO PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT filed byContra Costa County. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Related document(s) 125 ) (Baker, D.) (Filed on 12/12/2017) (Entered: 12/12/2017)
139 EXHIBITS re 136 Opposition/Response to Motion Notice of Errata - Corrected TOA filed byJohn Farrow, Jerome Wade. (Related document(s) 136 ) (Dietrick, Michael) (Filed on 12/20/2017) (Entered: 12/20/2017)
140 REPLY (re 126 MOTION to Exclude Testimony of Plaintiffs' Expert Robert Boruchowitz ) (Reply in Support of Motion) filed byContra Costa County. (Baker, D.) (Filed on 12/22/2017) (Entered: 12/22/2017)
141 REPLY (re 128 MOTION for Summary Judgment OR PARTIAL SUMMARY JUDGMENT ) filed byContra Costa County. (Attachments: # 1 Declaration of D. Cameron Baker, # 2 Declaration of Robin Liptezky)(Baker, D.) (Filed on 12/22/2017) (Entered: 12/22/2017)
142 REPLY (re 125 MOTION for Summary Judgment MOTION for Partial Summary Judgment ) filed byJohn Farrow, Jerome Wade. (Attachments: # 1 Declaration)(Martin, Christopher) (Filed on 12/22/2017) (Entered: 12/22/2017)
143 Minute Entry for proceedings held before Chief Magistrate Judge Joseph C. Spero: Motion Hearing held on 1/19/2018 re 126 MOTION to Exclude Testimony of Plaintiffs' Expert Robert Boruchowitz filed by Contra Costa County, 128 MOTION for Summary Judgment OR PARTIAL SUMMARY JUDGMENT filed by Contra Costa County, 125 MOTION for Summary Judgment MOTION for Partial Summary Judgment filed by John Farrow, Jerome Wade. Motions submitted.
FTR Time: 9:45-10:34.

Attorney for Plaintiff: Michael Dietrick, Chris Martin

Attorney for Defendant: Cameron Baker

01/19/2018

(klhS, COURT STAFF) (Date Filed: 1/19/2018) Modified on 1/31/2019: Matter transcribed by Joan Columbini. (rjdS, COURT STAFF). (Entered: 01/19/2018)
144 CONSENT/DECLINATION to Proceed Before a US Magistrate Judge by Contra Costa County.. (klhS, COURT STAFF) (Filed on 1/19/2018) (Entered: 01/19/2018)

01/02/2019 145

ORDER by Chief Magistrate Judge Joseph C. Spero granting in part and denying in part 126 Motion to Exclude Expert Testimony; denying 125 Plaintiffs' Motion for Summary Judgment; and granting 128 Defendant's Motion for Summary Judgment. (jcslc2S, COURT STAFF) (Filed on 1/2/2019) (Entered: 01/02/2019)

01/02/2019 01/25/2019
01/31/2019 01/31/2019

146 CLERK'S JUDGMENT in favor of Contra Costa County against Jerome Wade, John Farrow. Plaintiffs claim under California Government Code section 27706 is dismissed without prejudice to Plaintiffs bringing a separate action in a court of competent jurisdiction. (klhS, COURT STAFF) (Filed on 1/2/2019) (Entered: 01/02/2019)
147 NOTICE OF APPEAL to the 9th Circuit Court of Appeals filed by John Farrow, Jerome Wade. Appeal of Clerk's Judgment, 146 (Pay.gov Agency Tracking ID 34611139918.) ***19-15152*** (Martin, Christopher) (Filed on 1/25/2019) (Additional attachment(s) added on 1/28/2019: # 1 Notice of Appeal, # 2 Receipt) (gbaS, COURT STAFF). Modified on 1/31/2019 (gbaS, COURT STAFF). (Entered: 01/25/2019)
148 USCA Case Number 19-15152 for 147 Notice of Appeal, filed by John Farrow, Jerome Wade. (gbaS, COURT STAFF) (Filed on 1/31/2019) (Entered: 01/31/2019)
149 TRANSCRIPT ORDER for proceedings held on 1/19/2018, 1/20/2017 before Magistrate Judge Joseph C. Spero by John Farrow, Jerome Wade, for Court Reporter FTR - San Francisco. (Martin, Christopher) (Filed on 1/31/2019) (Entered: 01/31/2019)

02/24/2019

150 Transcript Designation Form for proceedings held on 1/20/17, 7/14/17, 1/19/18 before Judge Joseph C. Spero, re 147 Notice of

03/14/2019
03/14/2019
03/13/2020 03/30/2020 04/03/2020

Appeal, Transcript due by 2/25/2019. (Martin, Christopher) (Filed on 2/24/2019) (Entered: 02/24/2019)
151 Transcript of Proceedings held on January 19, 2018, before Judge Joseph C. Spero. Court Reporter/Transcriber Joan Marie Columbini, CSR, RPR, telephone number (510) 367-3043, joan.columbini.csr@gmail.com. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re 149 Transcript Order ) Redaction Request due 4/4/2019. Redacted Transcript Deadline set for 4/15/2019. Release of Transcript Restriction set for 6/12/2019. (Related documents(s) 149 ) (Columbini, Joan) (Filed on 3/14/2019) (Entered: 03/14/2019)
152 Transcript of Proceedings held on January 20, 2017, before Judge Joseph C. Spero. Court Reporter/Transcriber Joan Marie Columbini, CSR, RPR, telephone number (510) 367-3043, joan.columbini.csr@gmail.com. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re 149 Transcript Order ) Redaction Request due 4/4/2019. Redacted Transcript Deadline set for 4/15/2019. Release of Transcript Restriction set for 6/12/2019. (Related documents(s) 149 ) (Columbini, Joan) (Filed on 3/14/2019) (Entered: 03/14/2019)
153 ORDER of USCA as to 147 Notice of Appeal filed by John Farrow, Jerome Wade. (tnS, COURT STAFF) (Filed on 3/13/2020) (Entered: 03/13/2020)
154 USCA Memorandum as to 147 Notice of Appeal filed by John Farrow, Jerome Wade. (tnS, COURT STAFF) (Filed on 3/30/2020) (Entered: 03/30/2020)
155 ORDER of USCA (arkS, COURT STAFF) (Filed on 4/3/2020) (Entered: 04/03/2020)

06/05/2020

156 ORDER of USCA (arkS, COURT STAFF) (Filed on 6/5/2020) (Entered: 06/05/2020)

06/15/2020

157 ORDER of USCA (arkS, COURT STAFF) (Filed on 6/15/2020) (Entered: 06/15/2020)

08/26/2020

158 ORDER of USCA (arkS, COURT STAFF) (Filed on 8/26/2020) (Entered: 08/27/2020)

10/27/2020 159

Writ of Certiorari Filed in United States Supreme Court (arkS, COURT STAFF) (Filed on 10/27/2020) (Entered: 10/27/2020)

02/22/2021 160

ORDER of United States Supreme Court No. 20549 re 147 NOTICE OF APPEAL No. 19-15152.

The petition for a writ of certiorari is denied.

(wsnS, COURT STAFF) (Filed on 2/22/2021) (Entered: 02/22/2021)

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