Case 2:94-cv-00671-LKK-GGH Document 664 Filed 06/13/02 Page 1 of 24

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FILED

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I JUN 132002l

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L

i

CLERK, U.S. DISTRICT COURT

;;:;\STERN DISTRICT OF CALIFORNIA

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uti JTY CLERK

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5

6

7

8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10

11 JERRY VALDIVIA, ALFRED YANCY, and BOSSIE WELCH, on their own
12 behalf and on behalf of the class of all persons similarly situated,
13 Plaintiffs,
14 v.
15 GRAY DAVIS, Governor of the State
16 of California, et al.,

NO. CIV. S-94-671 LKK/GGH
0 R DE R
TO BE PUBLISHED

17 __________D__e_fe_n_d__a_n_ts_.______________!
18

19

Plaintiffs sue the Governor of the State of California, and

20 various state correctional officials for allegedly maintaining

21 parole revocation procedures which violate the Due Process Clause

22 of the Fourteenth Amendment. 1 Plaintiffs now move for partial

23

24

1 Previously the court certified a class consisting of

California parolees (1) who are at large; (2) who are in custody 25 as alleged parole violators awaiting revocation of their parole

&& status; or (3) who are in custody haviryg been found in violation

26 of parole.

L---(

1

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1 summary judgment on their claim that the State's unitary parole 2 revocation hearing system is unconstitutional. 2 I resolve the

3 matter on the pleadings and evidence filed herein and after oral

4 argument.

5

I.

6

FACTS3

7

Under California's system, a parole officer can impose a

8 hold if the officer concludes that there is reasonable cause to

9 believe the parolee has violated a condition of his parole and

10 is a danger to himself, a danger to the person or property of

11 another, or may abscond. A parole hold authorizes the detention

12 of a parolee charged with an alleged parole violation pending a

13 parole revocation hearing. The parole officer is not required

14 to obtain an arrest warrant prior to placing the hold and taking

15 the parolee into custody. Within seven days after detention

16 pursuant to the parole hold, the parolee must be notified of the

17 reasons for the hold.

18

As noted, California's process does not provide for a

19 preliminary revocation hearing to determine whether there is

20 probable cause to believe that a parolee committed a parole

21 violation. Rather, California has adopted a wholly internal

22 review system from which the parolee is entirely excluded.

23
2 By "unitary," the court means that the sole hearing 24 accorded a parolee is directed to disposition of the alleged
violation without a preliminary determination of probable cause. 25
3 The facts contained herein are undisputed unless otherwise 26 noted.

2

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1 Following the placement hold, the parole officer has a case

2 conference with the unit supervisor to review the decision to

3 place the hold, and to determine a possible disposition.

4 Thereafter, the parole officer prepares and files a parole

5 violation report which is, after review by the unit supervisor,

6 submitted to the Board of Prison Terms. The report contains

7 information on the alleged parole violation and supporting

8 evidence, a summary of the parolee's adjustment while on parole,

9 and a recommendation as to what action should be taken.

10

Based on the parole violation report, a Board of Prison

11 Terms' deputy commissioner determines the terms of a "screening

12 offer" to be presented to the parolee. A "screening offer"

13 tenders to the parolee a specific term of incarceration in

14 exchange for the disposition of the case and a waiver of the 15 parolee's right to have a revocation hearing. 4 When the deputy

16 commissioner reviews the parole violation report to determine

17 the appropriate screening offer, the parolee is neither present,

18 nor has he had any opportunity to communicate with the deputy

19 commissioner. Put directly, at no time prior to the

20 determination of the screening offer has the parolee been given

21 an opportunity to speak to the charges, challenge the contents

22
The screening offer has the benefit to the parolee of 23 providing a definite resolution of the alleged violation, which
ordinarily is less severe than the potential sentence following a 24 revocation hearing. Thus, the screening offer system presents a
parolee who has not engaged in the charged conduct an inducement 25 to, in effect, enter an "Alford" plea, i.e. admit to the charge in
order to avoid a more severe consequence. See North Carolina v. 26 Alford, 400 U.S. 25 (1970).

3

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1 of the violation report, present his own evidence, or to

2 question witnesses.

3

If the parolee accepts the screening offer, a revocation

4 hearing is not held and thus the parolee has no chance to

5 challenge either the parole hold or the charges. If the parolee

6 does not accept the screening offer, a formal revocation hearing

7 is scheduled where the parolee may then challenge the charge

8 leading to the hold, rather than the parole hold. Pending the

9 revocation hearing, parolees who are under a parole hold remain

10 in custody.

11

In sum, at no time prior to the unitary revocation

12 hearing, do parolees have an opportunity to present their

13 position to an independent decision-maker or to challenge, in

14 any manner, whether the parole officer had probable cause for

15 the parole hold and resulting detention.

16

California's regulations suggest that the unitary

17 revocation hearing for parole revocation be scheduled within

18 forty-five days from the date the parole hold is placed. This

19 forty-five day period is only advisory, See Cal. Code Regs.

20 tit. 15, § 2640(f) , 5 and can be extended if defendants determine

21 a delay does not prejudice the parolee. Id. 6 The average hold

22
5 The regulations provide that "these time limits are 23 directory and do not affect the board's jurisdiction to hold a
revocation hearing in the event of delay which does not prejudice 24 the parolee." Cal Code Regs. tit. 15, § 2640(a).

25

6 It is undisputed that approximately ten percent of all

revocation hearings take place in more than forty-five days. See 26 Defendants' Statement of Undisputed Facts, at No. 1.

4

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1 to revocation hearing time statewide is 35.2 days. 7

2

II.

3

SUMMARY JUDGMENT STANDARDS

4

Summary judgment is appropriate when it is demonstrated

5 that there exists no genuine issue as to any material fact, and

6 that the moving party is entitled to judgment as a matter of

7 law. Fed. R. Civ. P. 56 (c); see also Adickes v. S.H. Kress &
8 Co., 398 u.s. 144, 157 (1970); Owen v. Local No. 169' 971 F.2d
9 347,355(9th Cir. 1992) .

10

Under summary judgment practice, the moving party

11

[A]lways bears the initial responsibility of

informing the district court of the basis for

12

its motion, and identifying those portions of

"the pleadings, depositions, answers to

13

interrogatories, and admissions on file,

together with the affidavits, if any," which

14

it believes demonstrate the absence of a

genuine issue of material fact.

15

16 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). "[W]here

17 the nonmoving party will bear the burden of proof at trial on a

18 dispositive issue, a summary judgment motion may properly be

19
As of March 2001, the average hold to revocation hearing 20 time in the State was 35.2 days. See Plaintiffs' Undisputed Facts,
at No. 23. Specifically, the State's regional averages with 21 respect to this time lapse are as follows: Region I - 38.8 days,
Region II- 36.2 days, Region III- 37.7 days, and Region IV- 28.8 22 days. See Plaintiffs' Undisputed Facts, at Nos. 19-22. As of May
2001, sixty-four percent of parolees alleged to have violated a 23 condition of their parole had a hold to revocation hearing time of
thirty-one to forty-five days. See Plaintiffs' Undisputed Facts, 24 at No. 28. Specifically, the State's regional percentages of
parolees who had their revocation hearings between thirty-one and 25 forty-five days are as follows: Region I - 7 9. 6%, Region I I
93.7%, Region III- 92.9%, and Region IV- 33.1%. See Plaintiffs' 26 Undisputed Facts, at Nos. 24-27.

5

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1 made in reliance solely on the 'pleadings, depositions, answers

2 to interrogatories, and admissions on file.'" Id. Indeed,

3 summary judgment should be entered, after adequate time for

4 discovery and upon motion, against a party who fails to make a

5 showing sufficient to establish the existence of an element

6 essential to that party's case, and on which that party will

7 bear the burden of proof at trial. See id. at 322. "[A]

8 complete failure of proof concerning an essential element of the

9 nonmoving party's case necessarily renders all other facts

10 immaterial." Id. In such a circumstance, summary judgment

11 should be granted, "so long as whatever is before the district

12 court demonstrates that the standard for entry of summary

13 judgment, as set forth in Rule 56(c), is satisfied." Id. at

14 323.

15

If the moving party meets its initial responsibility, the

16 burden then shifts to the opposing party to establish that a

17 genuine issue as to any material fact actually does exist. See

18 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

19 586 (1986); see also First Nat'l Bank of Ariz. v. Cities Serv.

20 Co., 391 U.S. 253, 288-89 (1968); Ruffin v. County of Los

21 Angeles, 607 F.2d 1276, 1280 (9th Cir. 1979), cert. denied, 455 22 u.s. 951 (1980).

23

In attempting to establish the existence of this factual

24 dispute, the opposing party may not rely upon the denials of its

25 pleadings, but is required to tender evidence of specific facts

26 in the form of affidavits, and/or admissible discovery material,

6

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1 in support of its contention that the dispute exists. Rule

2 56(e); see also Matsushita, 475 U.S. at 586 n.11; First Nat'l

3 Bank, 391 U.S. at 289; Strong v. France, 474 F.2d 747, 749 (9th

4 Cir. 1973). The opposing party must demonstrate that the fact

5 in contention is material, i.e., a fact that might affect the

6 outcome of the suit under the governing law, see Anderson 477

7 U.S. at 248; see also T.W. Elec. Serv., Inc. v. Pacific Elec.

8 Contractors Ass'n., 809 F.2d 626, 630 (9th Cir. 1987), and that

9 the dispute is genuine, i.e., the evidence is such that a

10 reasonable jury could return a verdict for the nonmoving party,

11 see Anderson 477 U.S. 248-49; see also Wool v. Tandem Computers,

12 Inc., 818 F.2d 1433, 1436 (9th Cir. 1987).

13

In the endeavor to establish the existence of a factual

14 dispute, the opposing party need not establish a material issue

15 of fact conclusively in its favor. It is sufficient that "the

16 claimed factual dispute be shown to require a jury or judge to

17 resolve the parties' differing versions of the truth at trial."

18 First Nat'l Bank, 391 U.S. at 290; see also T.W. Elec. Serv.,

19 809 F. 2d at 631. Thus, the "purpose of summary judgment is to

20 'pierce the pleadings and to assess the proof in order to see

21 whether there is a genuine need for trial.'" Matsushita, 475

22 U.S. at 587 (quoting Fed. R. Civ. P. 56(e) advisory committee's

23 note on 1963 amendments); see also International Union of

24 Bricklayers & Allied Craftsman Local Union No. 20 v. Martin

25 Jaska, Inc., 752 F.2d 1401, 1405 (9th Cir. 1985).

26 /Ill

7

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1

In resolving the summary judgment motion, the court

2 examines the pleadings, depositions, answers to interrogatories,

3 and admissions on file, together with the affidavits, if any.

4 Rule 56(c); see also SEC v. Seaboard Corp., 677 F.2d 1301, 1305-

5 06 (9th Cir. 1982). The evidence of the opposing party is to be

6 believed, see Anderson, 477 U.S. at 255, and all reasonable

7 inferences that may be drawn from the facts placed before the

8 court must be drawn in favor of the opposing party. See

9 Matsushita, 475 U.S. at 587 (citing United States v. Diebold,

10 Inc., 369 U.S. 654, 655 (1962) (per curiam)); see also Abramson

11 v. University of Hawaii, 594 F.2d 202, 208 (9th Cir. 1979).

12 Nevertheless, inferences are not drawn out of the air, and it is

13 the opposing party's obligation to produce a factual predicate

14 from which the inference may be drawn. See Richards v. Nielsen

15 Freight Lines, 602 F. Supp. 1224, 1244-45 (E. D. Cal. 1985),

16 aff'd, 810 F.2d 898, 902 (9th Cir. 1987).

17

Finally, to demonstrate a genuine issue, the opposing party

18 "must do more than simply show that there is some metaphysical

19 doubt as to the material facts

. Where the record taken as a

20 whole could not lead a rational trier of fact to find for the

21 nonmoving party, there is no 'genuine issue for trial.'"

22 Matsushita, 475 U.S. at 587 (citation omitted).

23 Ill/

24 /Ill

25 /Ill

26 ////

8

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1

III.

2

PROCEDURAL DUE PROCESS

3 A. FRAMEWORK FOR ANALYSIS

4

In Mathews v. Eldridge, 424 U.S. 319 (1976), the Supreme

5 Court established a three step balancing test to resolve

6 procedural due process claims. While Mathews did not involve

7 claims arising in a parole context, that fact does not appear

8 significant. Indeed, procedural due process jurisprudence

9 appears to employ the same three part test irrespective of the

10 context in which the claim arises. See Greenholtz v. Inmates,

11 Nebraska Penal & Correctional Complex, 442 U.S. 1, 18 (1979) . 8

12 Of course.to recognize that the same standard applies, is not to

13 say that context is irrelevant. On the contrary, as explained

14 below, context is one of the elements to be considered in

15 arriving at a conclusion as to what process is due. 16 the three part test.

I turn to

17

The first criteria in assessing the process due is the

18 value of the liberty interest and the degree of potential

19 deprivation. See Mathews, 424 U.S. at 341. (citing Morrissey, 20

21

Morrissey v. Brewer, 408 U.S. 471 (1972), the seminal

parole violation case preceded Mathews. It cited to Mathews' 22 direct ancestors in reaching its conclusions. See Morrissey, 408

U.S. at 481 (citing Goldberg v. Kelly, 397 U.S. 254, 263 (1970); 23 Fuentes v. Shevin, 407 U.S. 67 (1972)). Moreover, Mathews, while

involving a property interest in Social Security disability 24 benefits, cited to cases in the prison context, as well as

Morrissey, to develop its test for determining the process due 25 before deprivation of a constitutionally protected interest. See

Mathews, 424 U.S. at 333-34 (citing Wolff v. McDonnell, 418 U.S. 26 539, 557-58 (1974); Morrissey, 408 U.S. at 481).

9

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1 408 U.S. 471). As the Court in Morrissey noted, "consideration

2 of what procedures due process may require under any given set

3 of circumstances must begin with a determination of the precise

4 nature of the government function involved as well as of the

5 private interest that has been affected by the governmental

6 action." Morrissey, 408 U.S. at 481 (quoting Cafeteria &

7 Restaurant Workers Union v. McElroy, 367 U.S. 886, 895 (1961)).

8 After identifying the nature of the right at issue, the court

9 must consider "the fairness and reliability of the existing

10 pretermination procedures, and the probable value, if any, of

11 additional procedural safeguards." Mathews, 424 U.S. at 343.

12 Finally, the court must consider the administrative burden and

13 other societal costs, or benefits, which might be associated

14 with requiring more process as a matter of constitutional law.

15 Id. at 347.

16

As Morrissey noted, the liberty interest at stake in cases

17 such as the one at bar, is a parolee's interest in retaining the

18 "enduring attachments of normal life" so long as he or she does

19 not violate the conditions of parole. 408 U.S. at 482. 9 While

20 there may be no constitutional right to parole and while the

21 conditions of parole may significantly restrict a parolee's

22

9 The Court explained that: 23

"Subject to the conditions of his parole, he [the

24

parolee] can be gainfully employed and is free to be

with family and friends and to form the other enduring

25

attachments of normal life

"

26 Morrissey, 408 U.S. at 480.

10

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1 freedom, it is self-evident that the liberty interest of a

2 parolee is quite significant, and much greater than the liberty

3 interest of a prisoner still confined within the prison system.

4 See id. 10 ("Though the State properly subjects [a parolee] to

5 many restrictions not applicable to other citizens, his

6 condition is very different from that of confinement in

7 prison.") . 11

8

Under the rationale of Morrissey, the "fairness and

9 reliability" of the existing procedures should then be measured

10 by determining how effective the procedures are in assuring a

11 factually accurate statement of (1) whether there is probable

12 cause to believe that the parolee violated parole (procedures

13 during preliminary stage), and (2) whether the parolee did in

14 fact violate parole (procedures during revocation hearing) . As

15 the High Court explained, "[i]n analyzing what [process] is due,

16 we see two important stages in the typical process of parole

17 revocation

. The first stage occurs when the parolee is

18 arrested and detained, usually at the direction of the parole

19 officer. The second occurs when parole is formally revoked."

20 408 U.S. at 485. The first stage is to insure that the

21 10 Just ask any defendant in a criminal trial whether he
22 wants probation or imprisonment.

23

11 Since the liberty interest of those persons outside the

prison is far greater then those who are imprisoned, cases such as 24 Sandin v. Conner, 515 U.S. 472 (1995), and Meachum v. Fano, 427

U.S. 215 (1976), which involve asserted rights within prison, do 25 not inform what weight is to be accorded the liberty interest at

stake in the parole context. See also Young v. Harper, 520 U.S. 26 143, 147-48 (1997).

11

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1 parolee's life is not disrupted by an unjustified parol hold,

2 while the second stage requires reliable information justifying

3 the parolee's long term reincarceration. Id. Fundamentally, the

4 process due must include procedures which will prevent parole

5 from being revoked because of "erroneous information or because

6 of an erroneous evaluation." Id. at 484.

7

Of course, as with all due process considerations, the

8 balance which the court strikes in the parole revocation context

9 is informed by an understanding that "due process is flexible

10 and calls for such procedural protections as the particular

11 situation demands." Id. at 481. Put bluntly, however,

12 flexibility is not a shibboleth permitting something less than

13 what the particular situation does demand.

14

Given all the above, I now consider the process that is due

15 when a parolee's liberty interest is endangered by a claimed

16 violation of the terms of parole. 12

17 ////

18

12 Defendants appear to suggest that the Prison Litigation 19 Re form Act (" PLRA" ) , 18 U. S . C . § 3 6 2 6 (a ) (1 ) (A) , has a 1 t ere d the

values to be balanced requiring the court to afford "substantial 20 weight" to any adverse impact upon public safety or the operation

of the criminal justice system. I cannot agree.

21

By its terms, Section 3 62 6 (a) ( 1) (A) applies to any "ci vi 1

action with respect to prison conditions." Here, plaintiffs do not 22 challenge prison conditions. Rather, plaintiffs challenge quite

a different subject, parole violation procedures. As noted supra, 23 the Supreme Court has long recognized different issues are at stake

when addressing parolees as contrasted with those who are 24 imprisoned. Young v. Harper, 520 U.S. 143 (1997). While

considerations of public safety and the impact on the criminal 25 justice system are proper factors to weigh in determining the

process due, the weight to be accorded those factors is unaffected 26 by PLRA.

12

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1

Plaintiffs assert that California's unitary parole

2 revocation hearing system does not comport with the requirement 3 of the federal constitution's Due Process Clause. In this

4 motion, they contend that the State's failure to conduct

5 preliminary hearings at the time of a parolee's arrest and

6 detention is unconstitutional.

7

To assess the validity of plaintiffs' claim, the court must

8 first determine whether there is controlling precedent speaking

9 to the particular procedures due at the initial stage of the

10 parole revocation process. Obviously where binding precedent

11 requires particular procedures, the pertinent question is

12 whether defendants are providing those required procedures. In

13 the absence of such controlling precedent, the task is to apply

14 the Mathews process to the procedures at issue. As I now

15 observe, the courts by which I am bound have spoken with less

16 than perfect clarity on the issues before me.

17 B. PRE-REVOCATION HEARINGS

18

Plaintiffs assert that they are being denied due process

19 because defendants do not afford parolees preliminary hearings

20 to verify the existence of probable cause prior to the

21 revocation hearing. Defendants acknowledge that under

22 California's regulations and the current practice, the Board

23 conducts pre-revocation hearings only when the parolee is

24 suspected of a serious parole violation within thirty days of

25 the parolee's maximum discharge date. See Cal. Code Regs. tit.

26 15, § 2644(a). Otherwise, parolees suspected of parole

13

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1 violations are only afforded a unitary parole revocation

2 hearing, often held within forty-five days of the date the

3 parole hold is placed. Defendants contend, however, that a

4 preliminary hearing is not required, and that the State's

5 unitary parole revocation procedure provides a constitutionally

6 equivalent process. Below, I explain why defendants' arguments

7 are less than persuasive.

8

In Morrissey, the Supreme Court appeared to determine that

9 the Constitution requires a two stage process. 408 U.S. at 485

10 ("[W]e see two important stages in the typical process of parole

11 revocation," the first being the "arrest and preliminary

12 hearing" stage, and the second, "when parole is formally

13 revoked."). The Court explained that the initial "inquiry 14 should be seen as in the nature of a 'preliminary hearing' to

15 determine whether there is probable cause or reasonable ground

16 to believe that the arrested parolee has committed acts that

17 would constitute a violation of parole conditions." Id.

18

The Morrissey Court's explanation of the requirements for a

19 preliminary procedure plainly suggests that it contemplated a

20 "hearing" rather than some ex-parte process, for confirming

21 probable cause. For instance, in describing the "preliminary

22 hearing," the Court stated that "the parolee should be given 23 notice that the hearing will take place and that its purpose is 24 to determine whether there is probable cause to believe he has 25 committed a parole violation." Id. at 486-87. The Court added 26 that "[a]t the hearing, the parolee may appear and speak in his

14

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1 own behalf; he may bring letters, documents, or individuals who

2 can give relevant information to the hearing officer." Id. at

3 487. Moreover, on request of the parolee, the "person who has

4 given adverse information on which parole revocation is to be

5 based is to be made available for questioning in his presence."

6 Id. Finally, the Court required that the determination of

7 reasonable grounds "should be made by someone not directly

8 involved in the case." Id. at 485.

9

Despite the fairly detailed description of a

10 constitutionally sufficient preliminary determination, it

11 remains true that the Court has repeatedly taught, and not just

12 in Morrissey, that the requisites of due process are flexible.

13 As will be seen, this teaching has suggested to some that

14 Morrissey did not command two hearings under all circumstances.

15 As I now explain, that conclusion, while plausible, is difficult

16 to maintain in light of the Supreme Court's next discussion of

17 the issue.

18

A year after Morrissey, the Court explained that in that

19 case "we held that a parolee is entitled to two hearings, one a

20 preliminary hearing at the time of his arrest and detention to

21 determine whether there is probable cause to believe that he has

22 committed a violation of his parole, and the other a somewhat

23 more comprehensive hearing prior to the making of the final

24 revocation decision." Gagnon v. Scarpelli, 411 U.S. 778, 781-82

25 (1973); see also id. at 786 ("Morrissey mandated preliminary and

26 final revocation hearings.") The Gagnon Court again emphasized

15

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1 that "[a]t the preliminary hearing, a probationer or parolee is

2 entitled to notice of the alleged violations . . an

3 opportunity to appear and to present evidence on his own behalf,

4 a conditional right to confront adverse witnesses, an

5 independent decisionmaker, and a written report of the hearing."

6 411 U.S. at 786. Observing no difference between parole

7 revocation and probation revocation, the Court stated that "we

8 hold that a probationer, like a parolee, is entitled to a

9 preliminary and final revocation hearing." Id. at 782.

10

While it would appear that, without more, Morrissey and

11 Gagnon are dispositive, this court is also bound by the Ninth

12 Circuit's interpretation of the teachings of the High Court. I

13 thus turn to the Circuit's cases.

14

Nine years after Gagnon, the question of hearings under

15 Morrissey was discussed in Pierre v. Wash. St. Bd. of Prison

16 Terms & Paroles, 699 F.2d 471 (9th Cir. 1983). There, a habeas 17 petitioner, after having his parole revoked, claimed that the

18 State did not adhere to its own guidelines for determining his 19 minimum prison term. The petitioner also claimed that he was 20 denied due process because the State did not provide him with a 21 preliminary hearing prior to his revocation hearing. On appeal, 22 the petitioner abandoned his claim regarding the preliminary 23 hearing. Nonetheless, after rejecting his claim concerning 24 State guidelines, the Circuit panel stated that "[a]lthough 25 appellant abandoned his contention that failure to hold a 26 preliminary hearing prior to the formal on-site revocation

16

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1 hearing violated his due process right, we believe the issue is

2 before us." Pierre, 699 F.2d at 472. 13 The Pierre court then

3 opined that the Supreme Court did not intend to require two

4 hearings in every case, but only in cases with a fact pattern

5 similar to the one before it in Morrissey. See Pierre, 699 F.2d

6 at 472-73. 14 Emphasizing the language in Morrissey abjuring

7 formalism in the revocation process, Pierre then declared that

8 "[u]nder the facts of Morrissey, the two-hearing system

9 requirement was just one way to satisfy minimum due process; it

10 is not the only way in every case." Id. The Circuit panel

11 failed to discuss Gagnon's explanation that in Morrissey the

12 Court had held that, indeed, two hearings were required.

13

At least one way of reading Pierre so as to be consistent

14 with Morrissey, is to read it as not departing from an

15 obligation to provide a preliminary hearing, but rather, as

16 concluding no more than that a final revocation hearing

17 occurring within twenty-one days of the arrest of a parolee was

18 "prompt enough to qualify as the preliminary probable cause

19

20

13 Given that anyone may waive a constitutional claim, the

Pierre court's assertion is indeed puzzling. 21

14 In Morrissey, the Court explained the importance of a 22 prompt preliminary hearing noting that because "there is typically

a substantial time lag" between arrest and the final revocation 23 determination, and since "it may be that the parolee is arrested

at a place distant" from the place where the final revocation 24 hearing will take place, "due process would seem to require that

some minimal inquiry be conducted at or reasonably near the place 25 of the alleged parole violation or arrest and as promptly as

convenient after arrest while information is fresh and sources are 26 available." 408 U.S. at 485.

17

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1 determination required by Morrissey." Pierre, 699 F.2d at 473.

2 This reading of Pierre is supported by subsequent Ninth Circuit

3 cases. In United States v. Stocks, 104 F.3d 308 (9th Cir.

4 1997), a panel stated that "[a]fter Morrissey, parole may not be

5 revoked unless the parolee is afforded a hearing as to probable

6 cause and a final revocation hearing. At the preliminary parole

7 revocation hearing, a parolee is entitled to notice of the

8 alleged parole violations, an opportunity to appear and to

9 present evidence, a conditional right to confront the

10 government's witnesses, an independent decision-maker, and a

11 written report of the hearing." Id. at 311; see also White v.

12 White, 925 F.2d 287 (9th Cir. 1991) (finding that Morrissey

13 contemplated both a preliminary and a final revocation

14 hearing). 15

15

Whatever else may be said for Pierre, it seems apparent it

16 is dicta. Moreover, although this court should pay respectful

17 attention to Circuit dicta, given all the above it would seem

18 the defendants can only rely on Pierre if their practice of

19 delaying the revocation hearing roughly between thirty-one and

20 forty-five days meets Morrissey's requirement that there be a

21 prompt determination of probable cause. California's time frame

22
15 In White the Ninth Circuit held that the Parole 23 Commission's refusal to allow plaintiff to confront and
cross-examine adverse witnesses at his parole revocation hearing 24 violated his right to due process. 925 F.2d at 290. While the
case addressed the final revocation hearing, the White court 25 examined Morrissey in detail and concluded that "[t]o gather the
facts necessary to make the two-part decision, the Morrissey court 26 contemplated two hearings." Id. at 291.

18

Case 2:94-cv-00671-LKK-GGH Document 664 Filed 06/13/02 Page 19 of 24

1 for holding a hearing far exceeds the twenty-one days the Pierre

2 panel thought sufficed. 16

3

Defendants provide no authority to support the proposition

4 that an average delay of thirty-one to forty-five days is

5 acceptable under Morrissey and Gagnon. 17 While some state courts

6 have held that a preliminary hearing can occur within thirty

7 days from the date of arrest, see State v. Myers, 86 Wash.2d 419

8 (1976) (en bane), it does not appear that any court has indicated

9 that a delay of more than thirty days would be justifiable. 18

10 Indeed, even in Ellis v. District of Columbia, 84 F.3d 1413

11 (D.C. Cir. 1996), the D.C. Circuit case on which defendants

12 rely, the policy required the final revocation hearing to occur

13

16 Defendants' process may have other problems. As noted, it 14 encourages Alford type admissions of violation. See n. 4 supra.

Putting the parolee to such a choice without at least a 15 determination of probable cause may itself raise due process

questions. Because the court resolves the instant motion on other, 16 more established grounds, I need not consider that issue further.

As I point out in the text, however, the effect of the screening 17 offer in assuring reliable fact-finding bears on the Mathews

balancing test. 18

17 While Pierre opined that twenty-one days was not 19 inappropriate, the Seventh Circuit has suggested in dicta that a

ten day delay may violate Morrissey. See Luther v. Molina, 627 20 F.2d 71, 75, n.3 (7th Cir. 1980) ("Chief Justice Berger [in

Morrissey] seemed to be contemplating an almost immediate hearing

21

It is possible that a ten day delay between detention and

the preliminary hearing does not meet . 22 requirements.").

. constitutional .

23

18 It may be of some interest that the United States Senate

has noted relative to preliminary hearings in the federal parole 24 system, that a two-day detainment could result in a loss of

employment and severe disruption of the reintegration effort. See 25 S. Rep. No. 369, 94th Cong., 1st Sess. 25-26 (1975), reprinted in

1976 U.S.C.C.A.N. 335, 347, cited in Ellis v. District of Columbia, 26 84 F.3d 1413, 1430 (D.C. Cir. 1996)

19

Case 2:94-cv-00671-LKK-GGH Document 664 Filed 06/13/02 Page 20 of 24

1 within thirty days from the date the Board was notified of the

2 execution of a warrant, and regulations mandated a preliminary 3 interview prior to the revocation hearing. Id. at 1240. 19

4

Given all the above, this court concludes that even if a

5 prompt unitary hearing would meet constitutional muster, a

6 question I need not resolve, California's system allowing a

7 delay of up to forty-five days or more before providing the

8 parolee an opportunity to be heard regarding the reliability of

9 the probable cause determination does not.

10

Again, even assuming that Morrissey and Gagnon do not

11 compel a prompt preliminary hearing, the court's conclusion

12 above is necessitated by application of the Mathews test. In

13 order to protect a parolee's liberty interest, Morrissey

14 requires procedures to insure not only that the State does not

15 revoke parole without an adequate factual basis, but that

16

17

19 The majority in Ellis, like Pierre, emphasized the

flexible nature of due process and distinguished the facts in the

18 District of Columbia from those in Morrissey. As the dissent

pointed out, however, that reasoning fails to come to grips with 19 Gagnon's explanation that two hearings are required by Morrissey.

See Ellis, 84 F.3d at 1429-30 (J. Tatel, dissenting). While the 20 majority relied on the footnote in Gagnon encouraging the States

to devise "creative solutions" to cope with the practical 21 difficulties of complying with Morrissey, Ellis, 84 F.3d at 1422

(citing Gagnon, 411 U.S. at 782, n.5), that cannot reasonably be 22 construed as an invitation to avoid the fundamental requirements

of Morrissey. Whatever "creative solutions" or flexibility the Due 23 Process Clause permits, it would appear that the Supreme Court has

so far done nothing to indicate a retreat from its previous 24 position. Finally, for what it is worth, California's situation

far more clearly resembles that found in Morrissey rather than the 25 situation in the District of Columbia. In sum, then, with all due

respect, I do not find Ellis helpful in resolving the issue before 26 this court.

20

Case 2:94-cv-00671-LKK-GGH Document 664 Filed 06/13/02 Page 21 of 24

1 parolees are not detained without some sort of assurance that

2 there is probable cause to suspect a parole violation. The

3 effect of detention itself, in its disruption of the parolee's

4 family relationship, job, and life, is sufficiently significant

5 to require such a procedure.

6

Moreover, it is clear that the screening offer procedure

7 places a severe strain on an accurate fact-finding process.

8 While, clearly, Alford pleas do not offend the Constitution, and

9 indeed frequently benefit the parolee, that is not the issue in

10 terms of the three part balancing test. In that context, the

11 issue is whether greater process produces a more reliable

12 result. Certainly when a probable cause determination has been

13 made, society can have greater confidence that the screening

14 offer has not produced an unreliable result.

15

Finally, of course, the court must balance the social

16 interest in protecting an individual's interest in remaining at

17 large with the State's interest in protecting the public from

18 parolees who have violated the conditions of their parole. In

19 seeking to weigh that interest, however, the court lS

20 handicapped, since the defendants offer no evidence for the

21 proposition that a delay of thirty-one to forty-five days is

22 necessary to insure protection of that interest. Moreover,

23 while administrative inconvenience is a proper Mathews

24 consideration, the inconvenience occasioned by a prompt probable 25 cause hearing would not appear to be, in and of itself, a

26 sufficient justification for the potentially catastrophic

21

Case 2:94-cv-00671-LKK-GGH Document 664 Filed 06/13/02 Page 22 of 24

1 consequences of delay. Indeed, the Supreme Court seems to view

2 with equanimity the inconvenience that Morrissey engendered.

3 See Gagnon, 411 U.S. at 782, n.5 ("[s]ome amount of disruption 4 inevitably attends any new constitutional ruling.").

5

For all the above reasons, the court concludes that whether

6 viewed as compelled by Morrissey, or the result of a Mathews

7 balancing test, the current California parole revocation system

8 violates the plaintiffs' due process rights.

9

IV.

10

ORDERS

11

Accordingly, plaintiffs' motion for partial summary

12 judgment is GRANTED.

13

IT IS SO ORDERED.

14

DATED: June 13, 2002.

15

16

17

18

19

20 21 22 23 24 25 26

22

Case 2:94-cv-00671-LKK-GGH Document 664 Filed 06/13/02
United States District Court for the
Eastern District of California June 13, 2002

Page 23 nodf 2d4

* * CERTIFICATE OF SERVICE * *

2:94-cv-00671

Valdivias v.
Wilson et al

I, the undersigned, hereby certify that I am an employee in the Office of
the Clerk, u.s. District Court, Eastern District of California.
That on June 13, 2002, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office, or, pursuant to prior authorization by counsel, via facsimile.

William Vernon Cashdollar

SJ/LKK

Attorney General's Office of the State of California

PO Box 944255

1300 I Street

Suite 125

Sacramento, CA 94244-2550

Stephen J Perrella Jr Law Office of Stephen J Perrella P 0 Box 880738 San Diego, CA 92168

Alexander L Landon Law Offices of Alex Landon 2442 Fourth Avenue San Diego, CA 92101

Karen Kennard McCutchen Doyle Brown and Enersen Three Embarcadero Center Suite 1800 San Francisco, CA 94111

Case 2:94-cv-00671-LKK-GGH Document 664
Michael W Bien Rosen Bien and Asaro 155 Montgomery Street Eighth Floor San Francisco, CA 94104

Filed 06/13/02 Page 24 of 24

Donald Specter Prison Law Office General Delivery San Quentin, CA 94964

John T Philipsborn Law Offices of John T Philipsborn 507 Polk Street
Suite 250 San Francisco, CA 94102

Jack L. Wagner, Clerk

BY:

,_/1/ ·/c:-£

Deputy7 Clerk

 
 Case 2:94-cv-00671-LKK-GGH Document 742 Filed 10/18/02 Page 1 of 5
FILED

OCT 18 im2

1

2

_. ~--·-CLERK, U.S. DiS.iiiCT COURT EASTERN DISTRICT OF CALIFORNIA

BY-...,.-::::-:-:=:-:-:-::::::---

3

DEPUTY CLERK

4

5

6

7

UNITED STATES DISTRICT COURT

8

EASTERN DISTRICT OF CALIFORNIA

9

10 JERRY VALDIVIA, ALFRED YANCY, and HOSSIE WELCH, on their own
11 behalf and on behalf of the class of all persons similarly situated,
12 Plaintiffs,
13 v.
14 GRAY DAVIS, Governor of the State
15 of California, et al.,

NO. CIV. S-94-671 LKK/GGH
0 RDER

16

Defendants.

__________________________________ !

17

18

On June 13, 2002, the court granted plaintiffs' motion for

19 summary judgment as to plaintiffs' claim that California's

20 unitary parole revocation hearing system violates their rights

21 to procedural due process. On September 4, 2002, the court

22 denied plaintiffs' motion for a remedial plan in order to give

23 defendants a chance to pursue an interlocutory appeal of the

24 June 13, 2002 order pursuant to 28 U.S.C. § 1292(b).

25 ////

26 /Ill

1

Case 2:94-cv-00671-LKK-GGH Document 742 Filed 10/18/02 Page 2 of 5

1 Defendants, however, failed to timely file a petition for

2 permission to appeal. On October 10, 2002, the court, finding

3 that counsel's neglect was inexcusable, denied defendants'

4 request for an extension of time to file a petition and reset

5 the remedial plan motion for argument.

6

On October 15, 2002, the court heard argument on the motion

7 and discussed with the parties the appropriate time line for

8 developing a remedy. Accordingly, the court ORDERS:

9

1. Defendants shall SERVE on plaintiffs, within sixty

10

(60) days of the effective date of this order, a

11

Proposed Remedial Plan addressing the constitutional

12

deficiencies identified in the court's June 13, 2002

13

order. Should defendants attempt in good faith to

14

develop a plan but determine that they are unable to

15

do so, defendants shall FILE, within forty-five (45)

16

days of the effective date of this order, an affidavit

17

explaining in detail the reasons for their failure to

18

timely propose such a plan.

19

2. The parties shall then meet and confer and complete

20

negotiations within sixty (60) days of the date of

21

defendants' service of their Proposed Remedial Plan

22

upon plaintiffs. Upon expiration of the sixty (60)

23

day period, defendants shall FILE a Proposed Remedial

24

Order with the court.

25

26

2

Case 2:94-cv-00671-LKK-GGH Document 742 Filed 10/18/02 Page 3 of 5

1

3 . Plaintiffs shall FILE any objections to the Proposed

2

Remedial Order within 15 days after defendants file

3

their Proposed Remedial Order with the court.

4

IT IS SO ORDERED.

5

DATED: October 17, 2002.

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

3

Case 2:94-cv-00671-LKK-GGH Document 742 Filed 10/18/02 Page 4 nodf 5d United States District Court for the
Eastern District of California October 18, 2002
* * CERTIFICATE OF SERVICE * *
2:94-cv-00671
Valdivias v.
Wilson et al

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Eastern District of California.
That on October 18, 2002, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office, or, pursuant to prior authorization by counsel, via facsimile.

Stephen J Perrello Jr

SJ/LKK

Law Office of Stephen J Perrello

P 0 Box 880738

San Diego, CA 92168

Alexander L Landon Law Offices of Alex Landon 2442 Fourth Avenue San Diego, CA 92101

Karen Kennard Bingham McCutchen LLP Three Embarcadero Center Suite 1800 San Francisco, CA 94111

Michael W Bien Rosen Bien and Asaro 155 Montgomery Street Eighth Floor San Francisco, CA 94104

Donald Specter Prison Law Office General Delivery San Quentin, CA 94964

WiCllaisaem2:V94e-rcnvo-0n06C71a-sLhKdKo-GllGaHr Document 742 Filed 10/18/02 Page 5 of 5 Attorney General's Office for the State of California PO Box 944255 1300 I Street Suite 125 Sacramento, CA 94244-2550
Erika C Aljens Attorney General's Office for the State of California PO Box 944255 1300 I Street Suite 125 Sacramento, CA 94244-2550
John T Philipsborn Law Offices of John T Philipsborn 507 Polk Street Suite 250 San Francisco, CA 94102
Kristen A Palumbo Bingham McCutchen Three Embarcadero Center San Francisco, CA 94111-4067

Jack L. Wagner, Clerk

BY,

/?~

Deputy Clerk

 
 Case 2:94-cv-00671-LKK-GGH Document 1218 Filed 06/09/05 Page 1 of 16

1

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

8

EASTERN DISTRICT OF CALIFORNIA

9

10 JERRY VALDIVIA, ALFRED YANCY, and HOSSIE WELCH, on their own
11 behalf and on behalf of the class of all persons similarly situated,
12 Plaintiffs,
13 v.
14 GRAY DAVIS, Governor of the State
15 of California, et al.,

NO. CIV. S-94-671 LKK/GGH O R D E R

16

Defendants.

/

17

18

Plaintiffs, on behalf of themselves and a class of

19 California parolees, filed this action on May 2, 1994,

20 challenging the constitutionality of parole revocation

21 procedures by the California Board of Prison Terms (“BPT”) and

22 the California Department of Corrections (“CDC”). This matter

23 is before the court on plaintiffs’ motion for an order to show

24 cause why defendant Hickman should not be found in civil

25 contempt of the court’s Permanent Injunction Order. I decide

26 the motion based on the papers and pleadings filed herein and

1

Case 2:94-cv-00671-LKK-GGH Document 1218 Filed 06/09/05 Page 2 of 16

1 after oral argument.

2

I.

3

PROCEDURAL BACKGROUND

4

On June 13, 2002, plaintiffs were granted partial summary

5 judgment on their claim that California’s unitary parole

6 revocation hearing system violated their due process rights

7 under Morrissey v. Brewer, 408 U.S. 481 (1972) and Gagnon v.

8 Scarpelli, 411 U.S. 778 (1973). See Valdivia v. Davis, 206

9 F.Supp.2d 1068 (E.D. Cal. 2002) (“June 13th Order”). The court

10 held that California’s parole revocation system violated the Due

11 Process Clause of the Fourteenth Amendment by “allowing a delay

12 of up to forty-five days or more before providing the parolee an

13 opportunity to be heard regarding the reliability of the

14 probable cause determination.” Id. at 1078.

15

On October 18, 2002, the court ordered the defendants to

16 file a proposed remedial plan addressing the violations

17 identified in the June 13th Order. On March 17, 2003, the

18 defendants provided plaintiffs with their proposed Valdivia

19 Remedial Plan (“VRP”), to which plaintiffs filed two objections.

20 While the parties continued to engage in settlement negotiations

21 over remaining claims not adjudged, defendants requested that

22 the court provide guidance as to the sufficiency of their VRP.

23 The court in response examined the VRP and ordered that

24 defendants file a revised remedial plan to meet specific

25 criteria. See Order dated July 23, 2003. On August 21, 2003,

26 the defendants filed a revised VRP. In November 2003, before a

2

Case 2:94-cv-00671-LKK-GGH Document 1218 Filed 06/09/05 Page 3 of 16

1 final hearing on the revised VRP, the parties filed a Stipulated

2 Proposed Order for Permanent Injunctive Relief. Pursuant to

3 their settlement negotiations, the proposed order required

4 California’s BPT and the CDC to develop and implement new parole

5 revocation processes to remedy pervasive constitutional

6 violations in the State’s then-existing procedures. The revised

7 VRP was referenced in and attached to the proposed permanent

8 injunction order. The parties sought preliminary approval from

9 the court that the settlement was sufficiently fair, reasonable

10 and adequate, and that it justified issuing notices to the class

11 and scheduling a final hearing. See Fed. R. Civ. P. 23(e). The

12 parties made their preliminary showing of fairness via a joint

13 Stipulated Motion for Preliminary Approval of Class Action

14 Settlement, filed on November 24, 2003. On March 9, 2004, the

15 court granted the parties’ permanent stipulated injunction and

16 granted final approval of that Stipulated Permanent Injunction

17 on March 17, 2004(“Order”).

18

The plaintiffs now allege that the defendants are in direct

19 violation of specific terms of the Permanent Injunction.

20

II.

21

STANDARD

22

A district court has continuing jurisdiction to enforce its

23 injunction. Crawford v. Honig, 37 F.3d 485 (9th Cir. 1994).

24 The movant has the burden of proving by clear and convincing

25 evidence that the defendants are in violation of the court’s

26 order. Wolfard Glassblowing Co. v. Vanbragt, 118 F.3d 1320,

3

Case 2:94-cv-00671-LKK-GGH Document 1218 Filed 06/09/05 Page 4 of 16

1 1322 (9th Cir. 1997). To be enforceable by contempt, the

2 injunction must clearly describe prohibited or required conduct.

3 Gates v. Shinn, 98 F.3d 463, 468 (9th Cir. 1996). A defendant

4 should not be held in contempt for actions that “appear[] to be

5 based on a good faith and reasonable interpretation of the

6 court’s order . . . .” Vertex Distributing, Inc. v. Falcon Foam

7 Plastics, Inc., 689 F.2d 885 (9th Cir. 1982).

8

III.

9

ANALYSIS

10

On April 11, 2005, defendant Roderick Hickman, Youth and

11 Adult Correctional Authority Secretary, issued a memorandum

12 (“Hickman Memo”) to state parole agents with a directive

13 prohibiting the use of certain remedial sanctions in lieu of

14 probation revocation. Decl. of Ernest Galvan (“Galvan Decl.”),

15 Exh. 2. The memorandum provides, in relevant part, that:

16 “Electronic In-Home Detention (“EID”), Community Correctional

17 Reentry Centers (“Halfway Back” Program) and the Substance Abuse

18 Treatment Control Units (“SATCU”) were clearly designed to

19 provide intermediate sanctions in lieu of parole revocation

20 . . . . Effective immediately, these programs will no longer be

21 used.”1

22

Plaintiffs contend that the change in policy and practice

23 as commanded by the Hickman Memo is in direct contravention of

24
1 SATCUs are residential facilities, often within prisons or 25 jails, into which parolees can voluntarily accept detention for a
period of up to 90 days in lieu of parole revocation. See Cal. 26 Health & Safety Code §§ 11560, 11561, 11563.

4

Case 2:94-cv-00671-LKK-GGH Document 1218 Filed 06/09/05 Page 5 of 16

1 this court’s Order. The Permanent Injunction, they argue,

2 created procedures for, and ensured the use of, remedial

3 sanctions in place of parole revocation and imprisonment when

4 parole officers determine that such measures will best benefit

5 both the community and the parolee. According to plaintiffs,

6 the Hickman Memo effectively obliterates the remedial sanctions

7 provisions. In response, the defendants acknowledge that a

8 remedial sanctions plan is contained in the VRP. They argue,

9 however, that the court may not find them in violation of the

10 Permanent Injunction because remedial sanctions are not part of

11 that Order. I examine the parties’ contentions below.

12 A. PLAIN READING OF THE PERMANENT INJUNCTION

13

The court must first determine whether the language of the

14 Permanent Injunction Order incorporates remedial sanctions as

15 contended by plaintiffs.

16

As a general matter, principles of state law govern the

17 interpretation and enforcement of settlement agreements. Jeff

18 D. v. Andrus, 899 F.2d 753, 759 (9th Cir. 1989); see also Gates

19 v. Rowland, 39 F.3d 1439, 1444 (9th Cir. 1994) ("The rules of

20 contract interpretation of the situs state govern interpretation

21 of the consent decree."). “This is true even when the

22 underlying cause of action is federal in nature.” United

23 Commercial Ins. v. Paymaster Corp., 962 F.2d 853, 856 (9th Cir.

24 1992).

25

California law dictates that “[t]he language of a contract

26 is to govern its interpretation[] if the language is clear and

5

Case 2:94-cv-00671-LKK-GGH Document 1218 Filed 06/09/05 Page 6 of 16

1 explicit . . . .” Cal. Civ. Code § 1638. The intention of

2 parties must therefore be gathered from the plain language on

3 the face of contract. Pacific States Corp. v. Hall, 166 F.2d 668

4 (9th Cir. 1948).

5

Section IV of the permanent injunction, entitled “Policies,

6 Procedures, Forms, and Plans,” sets forth the prospective and

7 mandatory requirements for defendants. Paragraph 11(a) directs

8 the defendants to “develop and implement sufficiently specific

9 Policies and Procedures” to ensure compliance with “all of the

10 requirements of [the permanent injunction] Order.” It specifies

11 that “[t]he Policies and Procedures will provide for

12 implementation of the August 21, 2003 Remedial Outline (attached

13 hereto as Exhibit A), as well as the requirements set forth

14 below in Paragraphs 12-24.” PI Order, ¶11(a). As indicated by

15 the language, the VRP is indeed attached to the order.

16 Accordingly, the plain language of the Permanent Injunction

17 clearly and explicitly incorporates the VRP and orders the

18 defendants to comply with and implement it.2 Defendants are

19 therefore bound by the terms of the VRP.

20 ////

21

22

2 Paragraph 12 reiterates that the Policies and Procedures

shall ensure that, in addition to the Remedial Plan Outline, the

23 requirements set forth in paragraphs 13-24 are met. The

requirements in those paragraphs concern the parolee’s appointed

24 counsel’s ability to adequately represent the parolee,

confidentiality of parolee’s files, transparency and communication

25 between the involved parties during the parole revocation process,

and evidence used at the probable cause and final revocation

26 hearings.

6

Case 2:94-cv-00671-LKK-GGH Document 1218 Filed 06/09/05 Page 7 of 16

1 B. THE FOUR CORNERS RULE

2

Despite the plain language of the permanent injunction

3 incorporating and directing compliance with the VRP, defendants

4 insist that, because remedial sanctions “are not mentioned in

5 the body of the injunction” itself, they cannot be a part of the

6 Order under the “four corners” rule. Def’s Opp. Br. at 5.

7 Defendants’ understanding of the four corners rule is mistaken.

8 It is well-established that reliance upon references or

9 documents expressly incorporated in a settlement agreement for

10 construction purposes “does not in any way depart from the 'four

11 corners' rule.” United States v. ITT Continental Baking Co.,

12 420 U.S. 223, 238 (1975)(construing agreement containing consent

13 order and attached appendix as three “parts of the same

14 agreement” under “four corners” rule). Rather, the terms

15 contained in a document attached to an injunction bind the

16 parties just as much as the terms contained in the injunction

17 itself. See California v. Campbell, 138 F.3d 772, 783 (9th Cir.

18 1998) (holding that enjoined defendants bound by terms of

19 document attached to injunction); see also Davis v. City and

20 County of San Francisco, 890 F.2d 1438, 1450 (9th Cir. 1989).

21

Further, although Rule 65(d) of the Federal Rules of Civil

22 Procedure provides that every order granting an injunction

23 "shall describe in reasonable detail, and not by reference to

24 the complaint or other document, the act or acts sought to be

25 restrained . . .," the rule does not necessarily preclude

26 incorporation by reference. State of Cal., on Behalf of

7

Case 2:94-cv-00671-LKK-GGH Document 1218 Filed 06/09/05 Page 8 of 16

1 California Dept. of Toxic Substances, 138 F.3d 772 (9th Cir.

2 1998).

3

The Ninth Circuit has explained that “the rationale behind

4 the incorporation-by-reference language in Rule 65(d) [i]s a

5 safeguard to ‘ensure adequate notice to defendants of the acts

6 prohibited.’” Id. at 783 (quoting Henry Hope X-Ray Prods., Inc.

7 v. Marron Carrel, Inc., 674 F.2d 1336, 1343 (9th Cir. 1982)).

8 Here, it cannot be said that the defendants were unaware of the

9 incorporation and contents of the VRP, since the Stipulated

10 Order for Permanent Injunction, including the VRP, were

11 submitted by the parties themselves pursuant to their settlement

12 negotiations.3 The Order’s reference to and attachment of the

13 VRP therefore conforms with the “four corners rule” as well as

14 with Rule 65(d).

15 C. THE VRP AND REMEDIAL SANCTIONS

16

As contended by the plaintiffs, a review of the VRP

17 demonstrates that remedial sanctions are included at nearly

18 every step of the new revocation process created by the parties

19 pursuant to their settlement negotiations. The VRP is a six-

20
3 Other evidence unambiguously demonstrates the defendants’ 21 own understanding that remedial sanctions are part of the Permanent
Injunction. The defendants posted class member notices, approved 22 by the court, in every jail, prison and parole office in
California. The short notice explicitly states that, “[u]nder the 23 agreement, by early 2004, some parolees will be sent to community-
based programs, instead of prison.” Galvan Decl., Exh. 8, 24 attachments. The longer notice provides that “the Permanent
Injunction will require many changes in the revocation system,” 25 including that “the BPT and CDC will use alternatives to parole
revocation, such as treatment in the community, for some parolees 26 who would otherwise be arrested on parole violation charges.” Id.

8

Case 2:94-cv-00671-LKK-GGH Document 1218 Filed 06/09/05 Page 9 of 16
1 page document along with a flow chart. The second section of 2 the VRP, entitled “Remedial Sanctions,” provides that, “as part 3 of the overall reform of the revocation process, the Parole and 4 Community Services Division of the Department of Corrections 5 will begin using remedial sanctions/community based treatment 6 . . . .” VRP at 1. It explains that “some of the remedial 7 sanctions/community based treatment programs that will be used 8 are the Substance Abuse Treatment Control Units, Electronic 9 Monitoring, Self-Help Outpatient/aftercare programs, and 10 alternative placement in structured and supervised 11 environments.” Id. Emphasized in bold and capital letters, the 12 VRP provides that if, shortly after the alleged parole violation 13 occurs, “remedial sanctions are deemed inappropriate and a 14 parole hold is placed on the parolee, a probable cause 15 determination/review will take place . . . .” According to the 16 VRP, officials will then again consider remedial sanctions 17 during the probable cause determination. That procedure was 18 apparently put into place “in an attempt to take a second look 19 at those individuals who have been placed into custody to 20 determine if the ‘present danger to public safety’ concern still 21 exists or if remedial sanctions/community based treatment is 22 possible at th[at] juncture.” Id. at 2. If remedial sanctions 23 are deemed inappropriate, the parolee is given notice of charges 24 and a probable cause hearing shall be conducted within ten 25 business days of when the notice is provided. The VRP explains 26 that remedial sanctions/community based treatment must again be
9

Case 2:94-cv-00671-LKK-GGH Document 1218 Filed 06/09/05 Page 10 of 16

1 considered twice before the probable cause hearing. VRP at 3,

2 4.4 Finally, the “Deputy Commissioner/Parole Administrator

3 shall have the complete range of options to resolve the case,”

4 including “remedial sanctions/community based treatment.” Id. at

5 5.

6

Accordingly, pursuant to its mandatory language, the

7 permanent injunction requires that defendants (1) consider

8 remedial sanctions throughout the new parole revocation process,

9 and that the remedial sanctions include (2) “the Substance Abuse

10 Treatment Control Units, Electronic Monitoring, Self-Help

11 Outpatient/aftercare programs, and alternative placement in

12 structured and supervised environments.” VRP at 1.

13 D. PERMANENT INJUNCTION VIOLATIONS

14

Having concluded that the permanent injunction clearly

15 requires the remedial sanctions procedures as set forth in the

16 VRP, I now examine whether the directives in the Hickman Memo

17 violate the court’s Order.

18

The Hickman Memo creates a new policy and practice which

19 prohibit the consideration and use of Electronic In-Home

20 Detention (“EHM”), Substance Abuse Treatment Control Units, and

21
4 Specifically, the VRP states that “On or before the fourth 22 business day, the Unit Supervisor must review the report and
. . . consider whether or not remedial sanctions/community based 23 treatment is appropriate in lieu of proceeding with referral to the
Board of Prison Terms with a recommendation that the parolee be 24 returned to prison.” Id. at 3. “The revocation packet is reviewed
by the Parole Administrator [on or before the 4th business day] to 25 determine whether or not there is a sufficient basis for the case
to move forward and whether or not remedial sanctions/community 26 based treatment is appropriate at this juncture.” Id. at 4.

10

Case 2:94-cv-00671-LKK-GGH Document 1218 Filed 06/09/05 Page 11 of 16

1 Community Correctional Reentry Centers (“CCRCs”) as sanctions in

2 lieu of parole revocation. The prohibition of the use of the

3 first two remedial sanctions offends the Permanent Injunction’s

4 mandate that SATCUs and Electronic Monitoring be considered and

5 used when appropriate. The Order provides that these two

6 programs “will be used,” VRP at 1(emphasis added). Defendants

7 respond that any conflict between the memorandum and the

8 permanent injunction is inconsequential because they will

9 “retool” these programs and may offer them to parolees upon

10 their release from prison, even before a parole violation

11 occurs. Def’s Oppo. at 9. Although such a policy is laudable,

12 it is no substitute for that required by the permanent

13 injunction. The VRP explicitly states that the SATCUs and

14 Electronic Monitoring “will” be used in the manner described

15 therein, thus indicating a requirement or command and

16 eliminating any choice or discretion as to the matter.

17 Therefore, these programs must be made available and be

18 considered throughout the parole revocation process after a

19 parole violation occurs.5

20

21

5 Defendants also assert that the Hickman Memorandum “did not

supercede the Board of Prison Term’s authority under California

22 Code of Regulations, Title 15, sections 2513, 2645 and 2646.”

Defs’ Oppo. at 9. According to them, the BPT retains the

23 discretion to place a parolee in a community program rather than

revoke probation. This argument has no merit for two reasons.

24 One, the issue here is not whether the Hickman Memo violates state

law, but whether it violates the Permanent Injunction. Second, as

25 plaintiff point out, those sections do not require consideration

of the remedial sanctions listed in the Permanent Injunction

26 throughout the revocation process.

11

Case 2:94-cv-00671-LKK-GGH Document 1218 Filed 06/09/05 Page 12 of 16

1

Whether the restriction on the use of Community

2 Correctional Reentry Centers also violates the Permanent

3 Injunction is a closer question. The VRP mandates the

4 consideration of “Self-Help Outpatient/aftercare programs” and

5 “alternative placement in structured and supervised

6 environments.” Unlike the SATCU and EHD, these other remedial

7 sanctions describe types of programs, rather than specific

8 programs. Community Correctional Reentry Centers are formal,

9 controlled environments for residential drug treatment, Cal.

10 Penal Code §§ 6250.5(b), 6251, 6253(a),(b), 6258(b), and

11 therefore comport with the requirement for “placement in

12 structured and supervised environments.” However, the Order

13 contemplates that other programs that qualify as structured and

14 supervised environments may also be employed. It appears, then,

15 that the prohibition of the use of CCRCs does not violate the

16 court’s Order as long as the defendants offer other remedial

17 sanctions that are “Self-Help Outpatient/aftercare programs” and

18 “alternative placement in structured and supervised

19 environments.” If they do not, then the removal of CCRCs as

20 available remedial sanctions would result in no “Self-Help

21 Outpatient/aftercare programs” or “alternative placement in

22 structured and supervised environments.”6 The defendants argue

23
6 Plaintiffs assert that the CCRCs were the “alternative 24 placement in structured and supervised environments” included in
defendants’ policies and procedures filed to implement the 25 Permanent Injunction. Pls’ Reply at 2. The language of the
Policies and Procedures does not support plaintiffs’ assertion, 26 however. The language there states only that “[r]emedial sanctions

12

Case 2:94-cv-00671-LKK-GGH Document 1218 Filed 06/09/05 Page 13 of 16

1 that they continue to provide remedial sanctions under these two

2 categories of remedial sanctions. According to defendants, they

3 will continue to utilize community based programs in the

4 disposition of parole violations when public safety is not

5 endangered. The issue then is whether any of those programs are

6 suitable under the “Self-Help Outpatient/aftercare programs” or

7 “alternative placement in structured and supervised

8 environments” categories.

9

Defendants first explain that they will use the “Substance

10 Abuse Recovery and Treatment Program” (STAR) which is “an

11 instructional-based education program designed to teach parolees

12 how to address and prevent substance abuse.” Defs’ Oppo. at 8.

13 Plaintiffs object that the STAR program is not a residential

14 alternative, but is rather a classroom-based educational program

15 run out of local parole offices. Pls’ Reply at 13. Apparently,

16 plaintiffs believe that, because the CCRCs are residential drug

17 treatment programs, any replacement program must also be

18 residential. That position is not grounded on any authority,

19 however.7 In their briefs, plaintiffs also object to the

20 defendants’ assertion that they will continue to use programs

21 such as “Proposition 36" community treatment centers, Community

22

23 may include but are not limited to” a “Half-way Back Program”
(CCRCs). Galvan Decl., Exh. 5 (Policies & Procedures) at 3. 24
7 The only terms in the Permanent Injunction relating to a 25 residential program relate to the requirement that SATCUs, which
are residential facilities, be available and considered as remedial 26 sanctions.

13

Case 2:94-cv-00671-LKK-GGH Document 1218 Filed 06/09/05 Page 14 of 16

1 based drug and alcohol rehabilitation centers, Parole Services

2 Network (PSN), Parolee Partnership Program, Narcotics Anonymous,

3 and Alcoholics Anonymous.

4

At oral argument, the plaintiffs conceded that there are

5 no standard definitions for the terms “Self-Help

6 Outpatient/aftercare programs” and “alternative placement in

7 structured and supervised environments” to guide the court in

8 determining whether defendants’ new programs are suitable under

9 these two categories. More importantly, the plaintiffs also

10 conceded that the use of this broad language vests the

11 defendants with discretion in selecting the programs under these

12 two categories. The plaintiffs do not provide the court with

13 any information about the substitute programs upon which it can

14 find that these programs are inadequate under the Permanent

15 Injunction. Further, because this court must “accord deference

16 to the appropriate prison authorities,” Turner v. Safley, 482

17 U.S. 78, 85 (1987), in their exercise of discretion regarding

18 what types of programs meet the requirements of these two

19 categories, the court will not find defendants in violation of

20 the Permanent Injunction by virtue of the elimination of CCRCs.8

21
8 The plaintiffs object to the defendants’ purported use of 22 “Substance Abuse Coordination Agencies” (SACAs) as remedial
sanctions on the grounds that those programs offer services to 23 parolees “graduating from prison substance abuse programs” and are
therefore not available to parole violators. Decl. Of Holly 24 Baldwin in Supp. of Pls’ Reply, Exh. B at 21. Defendants do not
argue to the contrary. The defendants are admonished that, if it 25 is true that SACAs are not available for parole violators, then
they do not qualify as remedial sanctions under the Permanent 26 Injunction.

14

Case 2:94-cv-00671-LKK-GGH Document 1218 Filed 06/09/05 Page 15 of 16

1

As explained above, while removal of the CCRCs does not

2 violate the Permanent Injunction, removal of Electronic

3 Monitoring and SATCUs as available remedial sanctions as

4 explained in the VRP is violative of that Order. The court,

5 however, does not believe that a contempt order is warranted at

6 this time. There is nothing before the court indicating that

7 the Hickman Memo was issued in bad faith, rather, the

8 defendants’ interpretation of the Permanent Injunction, although

9 erroneous, was arguably reasonable. Further, it appears that

10 the defendants have substantially complied with the court’s

11 Order. Vertex Distributing, Inc. v. Falcon Foam Plastics, Inc.,

12 689 F.2d 885 (9th Cir. 1982)(explaining that substantial

13 compliance with the terms of a consent judgment is a valid

14 defense to and basis upon which to find against civil contempt).

15

IV.

16

CONCLUSION

17

Plaintiff’s motion is GRANTED in part and DENIED in part as

18 follows:

19

1. The defendants are in violation of the Permanent

20 Injunction Order by virtue of the elimination of the remedial

21 sanctions of Electronic Monitoring and SATCUs;

22

2. The removal of the CCRCs is not in violation of

23 the Permanent Injunction Order; and

24 ////

25 ////

26 ////

15

Case 2:94-cv-00671-LKK-GGH Document 1218 Filed 06/09/05 Page 16 of 16

1

3. Defendants will not be held in contempt.

2

IT IS SO ORDERED.

3

DATED: June 8, 2005.

/s/Lawrence K. Karlton

4

LAWRENCE K. KARLTON

SENIOR JUDGE

5

UNITED STATES DISTRICT COURT

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

16

 
 Case 2:94-cv-00671-LKK-GGH Document 709 Filed 09/04/02 Page 1 of 4
FiLED

1

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

8

EASTERN DISTRICT OF CALIFORNIA

9

10 JERRY VALDIVIA, ALFRED YANCY, and HOSSIE WELCH, on their own
11 behalf and on behalf of the class of all persons similarly situated,
12 Plaintiffs,
13 v.
14 GRAY DAVIS, Governor of the State
15 of California, et al.,

NO. CIV. S-94-671 LKK/GGH
oR DE R

16

Defendants.

___________________________________1

17

18

In response to plaintiff's motion for an order directing

19 defendants to develop a remedy, defendants have requested that

20 the court instead certify the matter for interlocutory appeal.

21 Certification is appropriate where the "order involves a

22 controlling question of law as to which there is a substantial

23 ground for difference of opinion" and where "an immediate appeal

24 from the order may materially advance the ultimate termination

25 of the litigation." See 28 U.S.C. § 1292(b).

26 IIII

7D~

1

Case 2:94-cv-00671-LKK-GGH Document 709 Filed 09/04/02 Page 2 of 4

1

The court's June 13, 2002 order involved a controlling

2 question of law. The question, in which reasonable persons

3 could disagree, is whether California's system of unitary parole 4 revocation hearings is unconstitutional. In light of Pierre v. 5 Wash. St. Bd. of Prison Terms & Paroles, 699 F.2d 471 (9th Cir. 6 1983), the answer to this question remains uncertain. Moreover, 7 the court's order would necessitate the State of California to

8 engage in an overhaul of California's system of parole 9 revocation hearings before other challenged aspects of the

10 system had been adjudicated. Such an overhaul at this juncture 11 would delay consideration of the other challenges, possibly 12 trigger new challenges, and could require the State to adopt

13 different requirements with each additional claim considered. 14 Therefore, an immediate appeal on this matter would materially 15 advance the ultimate termination of the litigation.

16

Accordingly, pursuant to 28 U.S.C. § 1292(b), the court's

17 June 13, 2002 order is hereby CERTIFIED for interlocutory

18 appeal.

19

IT IS SO ORDERED.

20

DATED: August 29, 2002.

21

22

23

24

25

26

2

Case 2:94-cv-00671-LKK-GGH Document 709 Filed 09/04/02 Page 3 ofn4dd United States District Court for the
Eastern District of California September 4, 2002
* * CERTIFICATE OF SERVICE * *
2:94-cv-00671
Valdivias v.
Wilson et al

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Eastern District of California.
That on September 4, 2002, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office, or, pursuant to prior authorization by counsel, via facsimile.

William Vernon Cashdollar Attorney General's Office PO Box 944255 1300 I Street Suite 125 Sacramento, CA 94244-2550

SJ/LKK

Erika C Aljens Attorney General's Office PO Box 944255 1300 I Street Suite 125 Sacramento, CA 94244-2550

Stephen J Perrello Jr Law Office of Stephen J Perrello POBox 880738 San Diego, CA 92168

Alexander L Landon Law Offices of Alex Landon 2442 Fourth Avenue San Diego, CA 92101

Case 2:94-cv-00671-LKK-GGH Document 709 Filed 09/04/02 Page 4 of 4
Karen Kennard Bingham McCutchen LLP Three Embarcadero Center Suite 1800 San Francisco, CA 94111
Michael W Bien Rosen Bien and Asaro 155 Montgomery Street Eighth Floor San Francisco, CA 94104
Donald Specter Prison Law Office General Delivery San Quentin, CA 94964
John T Philipsborn Law Offices of John T Philipsborn 507 Polk Street Suite 250 San Francisco, CA 94102

Jack L. wag~~~Cle~

BY:

~ <---(

Deputj Clerk

 
 Case 2:94-cv-00671-LKK-GGH Document 796 Filed 07/23/03 Page 1 of 18

FILED

1

H

2~iDl1

1
J

2

a.£RK, u.s. DIS .. ;Ii~T COURT

3

EASTERN DISTRICT OF CAI.lfORNIA ..,' .

~

~.

DEf un ClERK

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10

11 JERRY VALDIVIA, ALFRED YANCY, and HOSSIE WELCH, on their own
12 behalf and on behalf of the class of all persons similarly situated,
13 Plaintiffs,
14
v.
15 GRAY DAVIS, Governor of the State
16 of California, et al.,

NO. CIV. S-94-671 LKK/GGH
oR D E R

17

Defendants.

--------------------------------/
18

19

Plaintiffs are a class of California parolees who have sued

20 the Governor and various correctional officials for maintaining

21 parole revocation procedures which violate the Due Process

22 Clause of the Fourteenth Amendment. This matter comes before

23 the court on defendants' proposed remedial plan and plaintiffs' 24 objections thereto.

25

On June 13, 2002, this court granted partial summary

26 judgment in favor of plaintiffs on their claim that California's
179~

Case 2:94-cv-00671-LKK-GGH Document 796 Filed 07/23/03 Page 2 of 18

1 unitary parole revocation hearing system violates their due

2 process rights under Morrissey v. Brewer, 408 U.S. 481 (1972)

3 and Gagnon v. Scarpelli, 411 U.S. 778 (1973). See Valdivia v.

4 Davis, 206 F.Supp.2d 1068 (2002) ("June 13 Order,,).l On October

5 18, 2002, the court ordered defendants to either (1) propose a

6 remedial plan addressing the violations identified in the June

7 13, 2002 Order by December 16, 2002 or (2) file, by December 2,

8 2002, a statement explaining in detail their reasons for failing

9 to timely propose a plan. On December 5, 2002, defendants

10 responded, explaining that they would be unable to comply with

11 the court's order. After further delay caused both by

12 defendants' difficulty in instituting new procedures and by

13 stipulation of the parties to facilitate negotiations, on March

14 17, 2003, defendants provided plaintiffs with their proposed

15 Valdivia Remedial Plan (VRP). On May 12, 2003, the plaintiffs

16 filed their two objections to the proposed plan.

17

Since the June 13 Order, the delays between detention and

18 hearing have apparently only increased. Plaintiffs have

19 submitted a recent report by the Inspector General of California

20
On September 4, 2002, the court denied plaintiffs' Motion 21 for an Order Directing Defendants to Develop a Remedial Plan
("Remedial Plan Motion") in order to give defendants an opportunity 22 to appeal the June 13 Order. In a separate order, also entered on
September 4, 2002, the court certified the June 13 Order for 23 interlocutory appeal pursuant to 28 U.S.C. § 1292(b). The court
ordered plaintiffs to re-notice the Remedial Plan Motion for 24 hearing if the Ninth Circuit chose not to take the appeal.
Defendants, however, neglected to timely file a petition for 25 permission to appeal pursuant to § 1292(b) The court therefore
reset plaintiffs' Remedial Plan Motion for hearing on October 15, 26 2002.

2

Case 2:94-cv-00671-LKK-GGH Document 796 Filed 07/23/03 Page 3 of 18

1 entitled "Review of the Board of Prison Terms" and an attached

2 memorandum from the Inspector General to the Chair of the Board

3 of Prison Terms (Specter Declaration Relating to April 14, 2003

4 Status Conference, Exhibit A). That report indicates that there

5 are "significant deficiencies in the state's parole revocation

6 process." Memorandum at 1. It states that "the Office of the

7 Inspector General found from reviewing a sample of cases that 81

8 percent had been incarcerated longer than 45 days [before

9 hearing] and that 7 percent had been held more than 100 days.

10 In many cases, by the time parolees are given a hearing to

11 determine whether parole should be revoked, they have already

12 served as much or more time than the parole revocation sentence

13 they would have received." Id. Given these disturbing

14 findings, the need for appropriate redress of the identified

15 constitutional violations cannot be over-emphasized.

16

While the parties continue to engage in settlement

17 negotiations over the remaining claims, both sides also request

18 that the court rule on plaintiffs' objections to the VRP.

19 Defendants have indicated that they would appreciate guidance

20 from the court on precisely what the Constitution requires with

21 respect to the timing and substance of the preliminary parole 22 revocation hearing.2 As the Ninth Circuit has just recently

23 At the most recent hearing, the following exchange took
24 place between the court and counsel for defendants:

25

THE COURT: I recognize how difficult it is [to develop an

appropriate remedial plan] And now that you have got fiscal

26

restraints of the kind I read about in the newspapers, I

3

Case 2:94-cv-00671-LKK-GGH Document 796 Filed 07/23/03 Page 4 of 18

1 reiterated in the context of parole procedures, however, "due

2 process is flexible and calls for such procedural protections as

3 the particular situation demands." Biggs v. Terhune, - F.3d -,

4 2003 WL 21488242 (9th Cir. June 30, 2003) (quoting Morrissey,

5 408 U.S. at 481). Given that flexibility, the court is

6 particularly reluctant to dictate rigid timelines and procedures

7 that the state must follow. Nonetheless, having found a

8 constitutional violation, r must now provide guidance as to

9 whether the state's proposed remedy satisfies that violation.

10 "To insure that a state-created parole scheme serves the public

11 interest purposes of rehabilitation and deterrence, the Parole

12 Board must be cognizant of

. the concepts embodied in the

13 Constitution requiring due process of law." rd.

14

The VRP's primary addition to the parole revocation process

15 is a preliminary Probable Cause Hearing (PCH) See VRP at 9-12.

16 The VRP proposes two changes to the process: (1) the PCH, where

17 the parolee is given an opportunity to speak about defenses and

18 mitigating circumstances after being held in custody for up to

19 21 days, at which time a BPT deputy commissioner makes a

20 determination of cause and retention of the parole hold; and (2)

21 a lengthening of the time in which a parolee may be held in

22 custody awaiting his or her final revocation hearing from the

23

expect it is going to be even more difficult. 24

MR. PATTERSON: With that being said, Your Honor, it may be

25

helpful to have some additional direction from the Court.

26 Transcript of June 9, 2003 Hearing at 3:9-15.

4

Case 2:94-cv-00671-LKK-GGH Document 796 Filed 07/23/03 Page 5 of 18

1 deadlines currently in place.

2

Plaintiffs two objections to the defendants' proposed

3 remedial plan both address the PCH.3 Plaintiffs object to (1)

4 the timing of the proposed PCH, and (2) the substance of the

5 PCH. I now turn to those objections.

6

I.

7

TIMING OF THE PRELIMINARY PROBABLE CAUSE HEARING

8

Plaintiffs point out that the VRP, "in an apparent attempt

9 to make the delays seem shorter,U indicates all time periods in

10 terms of "working days.u See Pl. 's Objs. at 5, n.3. In their

11 objections, "[p]laintiffs calculate the delays in the VRP using

12 actual calendar days, not working days, as a parolee's liberty 13 interest does not exist only on days when Defendants work. u Id.

14 Thus, the VRP states that "[t]he PCH shall be conducted within

15 15 working days of the date of the parole hold/discovery of the

16 parole violation," VRP at 9, which amounts to a maximum of 21

17 calendar days.

18

Plaintiffs argue that the proposed 21-day period is too

19 long, especially in conjunction with the 63 days that, under the

20 VRP, a parolee can be held in custody awaiting his or her final

21
3 Plaintiffs' objections address only those aspects of the 22 VRP that relate to the court's partial summary judgment order; to
the extent that the plan has other deficiencies, plaintiffs have 23 reserved their objections. While plaintiffs point out that
defendants may be able to satisfy the requirements of due process 24 by implementing a prompt unitary hearing, this order addresses only
those issues presented by defendants' proposed dual system. As 25 part of their ongoing negotiations, of course, the parties remain
free to devise a workable unitary system that would satisfy 26 constitutional requirements.

5

Case 2:94-cv-00671-LKK-GGH Document 796 Filed 07/23/03 Page 6 of 18

1 revocation hearing. As I explained in the June 13 Order, under

2 Morrissey, parolees are entitled to a "prompt" preliminary

3 hearing "at the time of arrest and detention." Gagnon, 411 U.S.

4 at 781-82; see Morrissey v. Brewer, 408 U.S. at 485 (holding

5 that preliminary hearing must involve "some minimal inquiry

6 . at or reasonably near the place of the alleged parole

7 violation or arrest and as promptly as convenient after

8 arrest."). I explained that "[t]he effect of detention itself,

9 in its disruption of the parolee's family relationship, job, and

10 life, is sufficiently significant to require such a procedure."

11 Valdivia, 206 F.Supp.2d at 1078.

12

As they did in opposing the motion for summary judgment,

13 defendants rely primarily on Pierre v. Washington State Bd. of

14 Prison Terms & Parolees, 699 F.2d 471 (9th Cir. 1983), where the

15 Ninth Circuit held that a unitary hearing that qualified as the

16 probable-cause determination was sufficiently prompt because it

17 was held within 21-days of the arrest. The situation in Pierre,

18 however, was entirely distinct from the situation here, and

19 therefore provides little guidance. In Pierre, unlike here, an

20 informal probable cause administrative review was conducted

21 eight days after the parolee was arrested and a formal on-site

22 revocation hearing was then conducted within 21-days of arrest.

23 Moreover, in the June 13 Order, I noted Pierre's questionable

24 precedential value on this point and explained that "[w]hatever

25 else may be said for Pierre, it seems apparent it is dicta."
26 IIII

6

Case 2:94-cv-00671-LKK-GGH Document 796 Filed 07/23/03 Page 7 of 18

1 206 F.Supp.2d at 1077. 4 See United States v. Stocks, 104 F.3d

2 308, 311 (9th Cir. 1997) i White v. White, 925 F.2d 287, 291 (9th 3 Cir. 1991).

4

Defendants also argue that many tasks must be completed

5 before the hearing, such as investigation, review, referral,

6 assembly of revocation packets, processing, screening and report

7 writing, and that, given these tasks, the time period provided

8 in the VRP is as promptly as the hearing can be held.

9 Plaintiffs argue that such a bald assertion of administrative 10 inconvenience alone cannot justify the delay and that

11 defendants, in any event, fail to provide any statistics about

12 the current average times to perform the required tasks or any

13 other evidence showing why it is impossible to promptly complete 14 the identified tasks. As I have already noted, "while

15 administrative inconvenience is a proper Matthews consideration,

16 the inconvenience occasioned by a prompt probable cause hearing

17 would not appear to be, in and of itself, a sufficient

18 justification for the potentially catastrophic consequences of

19 delay." 206 F.Supp.2d at 1078.

20

21

Ellis v. District of Columbia, 84 F.3d 1413 (D.C. Cir.

1996), on which defendants also rely, provides scant support for 22 their position and little guidance as to the question presented

here. As plaintiffs ably point out, three facts in Ellis make 23 clear that the situation there was quite different: (1) a probable

cause warrant determination was required before the parolee was 24 taken into custody, (2) the regulations mandated a prompt

preliminary interview with the parolee as soon as reasonably 25 possible, and (3) the final revocation hearing had to be held

within 30 days of the board's notification of the execution of a 26 warrant. Id. at 1420.

7

Case 2:94-cv-00671-LKK-GGH Document 796 Filed 07/23/03 Page 8 of 18

1

Deciding that a 21-day delay between custody and hearing

2 fails to satisfy the requirement of a "prompt" hearing under

3 Morrissey, however, is a far easier task than precisely

4 determining the maximum number of days that would sat~sfy due

5 process requirements. Indeed, it seems almost futile to attempt

6 to divine a precise numerical requirement from the

7 Constitution's majestic generalities. But see Grutter v.

8 Bollinger, 123 S.Ct. 2325, 2347 (2003) (discerning, under the

9 Equal Protection Clause, a 25-year aspirational limit on the

10 continued use of racial preferences to further a compelling

11 interest in diversity); State Farm Mutual Automobile Ins. v.

12 Campbell, 123 S.Ct. 1513, 1524 (2003) ("few awards exceeding a

13 single-digit ratio between punitive and compensatory damages, to

14 a significant degree, will satisfy due process"). Nonetheless,

15 that is the task presented here.

16

The starting point of the analysis is Morrissey's

17 requirement that parolees be given a preliminary hearing "at or

18 reasonably near the place of the alleged parole violation or

19 arrest and as promptly as convenient after arrest." Id. at 485.

20 As the Court explained in Gagnon, Morrissey held that, "[e]ven

21 though the revocation of parole is not a part of criminal

22 prosecution

. the loss of liberty entailed is a serious

23 deprivation requiring that the parolee be accorded due process."

24 Gagnon, 411 U.S. at 781. Therefore, "a parolee is entitled to

25 two hearings, one a preliminary hearing to determine whether

26 there is probable cause to believe he has committed a violation

8

Case 2:94-cv-00671-LKK-GGH Document 796 Filed 07/23/03 Page 9 of 18

1 of his parole, and the other a somewhat more comprehensive

2 hearing prior to the making of the final revocation decision."

3 Id. at 781-82.

4

Although the Supreme Court has never defined "prompt" In

5 terms of a specific number of days in the parole revocation

6 context, in County of Riverside v. McLaughlin, 500 U.S. 44

7 (1991), the Court defined "prompt" to mean 48 hours in the

8 context of criminal probable cause hearings; after 48 hours has

9 passed, the "burden shifts to the government to demonstrate the

10 existence of a bona fide emergency or other extraordinary

11 circumstances." Id. at 57. There, the Court noted the need for

12 flexibility but declared that "[f]lexibility has its limits

13

A State has no legitimate interest in detaining for

14 extended periods individuals who have been arrested without

15 probable cause." Id. at 55. The County of Riverside Court was

16 confronted with defining the meaning of "prompt" as set forth in

17 Gerstein v. Pugh, 420 U.S. 103 (1975), a task that is remarkably

18 similar to the essential task presented here, albeit in a

19 different constitutional context. The Court explained:

20

Unfortunately, as lower court decisions applying

Gerstein have demonstrated, it is not enough to say

21

that probable cause determinations must be "prompt."

This vague standard simply has not provided

22

sufficient guidance. Instead, it has led to a

flurry of systemic challenges to city and county

23

practices, putting federal judges in the role of

making legislative judgments and overseeing local

24

jailhouse operations

25

Our task in this case is to articulate more clearly

26

the boundaries of what is permissible under the

9

Case 2:94-cv-00671-LKK-GGH Document 796 Filed 07/23/03 Page 10 of 18

1

Fourth Amendment. Although we hesitate to announce

that the Constitution compels a specific time limit,

2

it is important to provide some degree of certainty

so that States and counties may establish procedures

3

with confidence that they fall within constitutional

bounds. Taking into account the competing interests

4

articulated in Gerstein, we believe that a

jurisdiction that provides judicial determinations

5

of probable cause within 48 hours of arrest will, as

a general matter, comply with the promptness

6

requirement of Gerstein.

7 County of Riverside, 520 U.S. at 55. In arriving at the 48-

8 hour time period, the Court acknowledged that "some delays are

9 inevitable. For example, where, as in Riverside County, the

10 probable cause determination is combined with arraignment, there

11 will be delays caused by paperwork and logistical problems.

12 Records will have to be reviewed, charging documents drafted, 13 appearance of counsel arranged, and appropriate bail determined.

14 On weekends, when the number of arrests is often higher and

15 available resources tend to be limited, arraignments may get

16 pushed back even further." Id.

17

Similarly, here, some reasonable administrative delay

18 between the time of detention and the time of hearing is 19 inevitable. The state, however, has presented the court with no

20 reason why the administrative obstacles in the parole revocation

21 context would be considerably greater than in the criminal

22 context. While there may, therefore, be little practical 23 difference, at least in administrative or logistical terms, 24 between the two contexts, there is a significant legal 25 difference. As the Supreme Court has explained, "[r:levocation 26 deprives an individual, not of the absolute liberty to which

10

Case 2:94-cv-00671-LKK-GGH Document 796 Filed 07/23/03 Page 11 of 18

1 every citizen is entitled, but only of the conditional liberty

2 properly dependent on observance of special parole

3 restrictions." Morrissey, 408 U.S. at 480. Thus, the County of

4 Riverside decision does not resolve the question presented here.

5

In this precise context, the Seventh Circuit has suggested

6 that a delay of ten days between initial detention and a

7 preliminary hearing would be too long. See Luther v. Molina,

8 627 F.2d 71, 74 n.3 (7th Cir. 1980) ("Chief Justice Burger in

9 [Morrissey] seemed to be contemplating an almost immediate

10 hearing .

It is possible that a ten day delay between

11 detention and the preliminary hearing does not meet .

12 constitutional . . requirements."). As I have previously

13 noted, a United States Senate report acknowledged, based on

14 legislative hearings and findings on the issue, that "[t]he

15 timing of the preliminary hearing is particularly crucial; even

16 if probable cause is not found, if a parolee is held in jail

17 awaiting his hearing for more than one or two days, his job will

18 probably be lost and his reintergration efforts badly

19 disrupted."). S. Rep. No. 369, 94th Cong., 1st Sess., 25-26

20 (1975), reprinted in 1976 U.S.C.C.A.N. 335, 347 (cited in Ellis

21 v. District of Columbia, 84 F.3d 1413, 1430 (D.C. Cir . 1996)).

22 While the Senate's views have no legal authority in a situation

23 involving a constitutional challenge to the state's procedures,

24 this legislative finding is nevertheless an important reminder

25 of the significant consequences that even a two-day delay may

26 have on a parolee's life and liberty.

11

Case 2:94-cv-00671-LKK-GGH Document 796 Filed 07/23/03 Page 12 of 18

1

Despite the state's complete failure to provide evidence

2 regarding the administrative feasibility of holding a probable

3 cause hearing within a prompt period of time, the court takes

4 some guidance from the fact that the state is able to arrange

5 preliminary probable cause hearings within ten days in an

6 analogous non-criminal context. California is obligated to

7 provide alleged sexually violent predators a probable cause

8 hearing within ten days of detention under the state's civil

9 detention scheme. See,~, People v. Cianco, 134 Cal.Rptr.2d

10 531, 535 (Cal. Ct. App. 2003) ("The probable cause hearing

11 provided for [by statute] shall commence within 10 calendar days

12 of the date of the [detention order]"). There is no reason to

13 believe that a longer period of time is appropriate in the case

14 of parolees.

15

It is notable that courts have suggested that the Due

16 Process Clause requires hearings within less than ten days when

17 the interests at stake are considerably less. See,~, David

18 v. City of Los Angeles, 307 F.3d 1143, 1146 (9th Cir. 2002) ("A

19 five-day delay in justifying detention of a private vehicle is

20 too long. Days, even hours, of unnecessary delay may impose

21 onerous burdens upon a person deprived of his vehicle."), rev'd,

22 123 S.Ct. 1895 (2003) i Goichman v. Rheuban Motors, Inc., 682

23 F.2d 1320, 1322 (9th Cir. 1982) ("Balancing the governmental and

24 private interests at stake, we hold that provision for a

25 post-seizure hearing within forty-eight hours satisfies the

26 requirements of due process.") (post-seizure hearing for owners

12

Case 2:94-cv-00671-LKK-GGH Document 796 Filed 07/23/03 Page 13 of 18

1 of impounded automobiles under California statute). Where what

2 is at stake is personal liberty, rather than simply access to an

3 automobile, a requirement of a hearing within ten days is

4 certainly not unreasonable.

5

Absent any additional guidance in the case law, the court

6 concludes that a period of ten days strikes a reasonable balance

7 between inevitable administrative delays and the state's

8 interest in conducting its parole system, on the one hand, and

9 the liberty interests of parolees, on the other. I conclude 10 that the Constitution simply does not tolerate the state's

11 detaining parolees for over ten days, with all the attendant

12 disruptions such detention entails, without affording a

13 preliminary hearing to determine whether there is probable cause

14 for the detention. I now turn to the question of the substance

15 of such a hearing, a question on which, fortunately, the Supreme 16 Court has provided considerably more guidance.

17

II.

18

THE SUBSTANCE OF THE PRELIMINARY PROBABLE CAUSE HEARING

19

With regard to the substance of the probable cause hearing,

20 the VRP provides as follows:

21

The DC [Deputy Commissioner] shall review the

violation report and appropriate documentation along

22

with any disability related documents. The purpose

of the PCH is for the DC to review each charge and

23

make a determination of cause and retention of the

parole hold. The DC shall assess whether or not the

24

parolee can effectively communicate and has the

ability to speak for himself/herself. The parolee

25

shall be provided an opportunity to speak in regards

to defenses or mitigating circumstances for each

26

charge. If the DC makes a determination of good

13

Case 2:94-cv-00671-LKK-GGH Document 796 Filed 07/23/03 Page 14 of 18

1

cause and retention of the parole hold, a screening

offer will be made. The DHA will complete the

2

appropriate paperwork.

3 VRP at 9.

4

In the June 13 order, the court explained the requirements

5 of the preliminary hearing, as set forth by the Supreme Court in

6 Morrissey and Gagnon, and by the Ninth Circuit in United States

7 v. Stocks, 104 F.3d 308, 311 (9th Cir. 1997). Consistent with

8 those precedents, I held that, at the preliminary hearing, the

9 parolee is entitled to "notice of the alleged violations, an

10 opportunity to appear and present evidence on his own behalf, a

11 conditional right to confront adverse witnesses, an independent

12 decision-maker, and a written report of the hearing." Valdivia,

13 206 F.Supp.2d at 1075-77 (quoting Morrissey, 408 U.S. at 485-87;

14 Gagnon, 411 U.S. at 781-82; and Stocks, 104 F.3d at 311). These

15 are the "minimum requirements of due process." Morrissey, 408

16 U.S. at 488-89.

17

Plaintiffs object to the VRP because it does not provide

18 the parolee with an opportunity to present (1) evidence, in the

19 form of letters or documents or (2) witnesses who can give

20 relevant information to the hearing officer, as Morrissey

21 requires. Nor does the VRP provide the parolee with (3) an

22 opportunity, at his request, to confront and cross-examine

23 adverse witnesses, as Morrissey also requires.

24

While the VRP's addition of a preliminary hearing is an

25 important improvement over previous procedures for which

26 defendants ought to be commended, it is clear from Morrissey

14

Case 2:94-cv-00671-LKK-GGH Document 796 Filed 07/23/03 Page 15 of 18

1 that the three features identified by plaintiffs - the

2 opportunity to present documentary evidence, the opportunity to

3 present witnesses, and a conditional right to confront adverse

4 witnesses - are constitutionally-required components of due

5 process that are missing from the current draft plan. To

6 comport with the requirements of due process, defendants must 7 therefore include these features.

8

III.

9

ORDERS

10

Accordingly the court hereby ORDERS that defendants submit,

11 no later than August 21, 2003, a revised remedial plan including

12 a preliminary probable cause hearing which (1) occurs no more

13 than ten calendar days after a parolee is taken into custody for

14 an alleged parole violation, and (2) affords the parolee the

15 rights provided by Morrissey, including notice of the alleged

16 violations, the opportunity to appear and present evidence, a

17 conditional right to confront adverse witnesses, an independent

18 decision-maker, and a written report of the hearing.

19

Alternatively, defendants may decide to develop a plan that

20 includes a unitary parole revocation hearing that (1) occurs

21 promptly enough after a parolee is taken into custody to qualify

22 as the preliminary probable cause hearing, and (2) otherwise
23 IIII 24 IIII 25 IIII 26 IIII

15

Case 2:94-cv-00671-LKK-GGH Document 796 Filed 07/23/03 Page 16 of 18

1 meets the constitutional requirements for both a preliminary and

2 final parole revocation hearing, as set forth in Morrissey.

3

IT IS SO ORDERED.

4

DATED: July 23, 2003.

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

16

Case 2:94-cv-00671-LKK-GGH Document 796 Filed 07/23/03 Page 17 onf d1d8 United States District Court for the
Eastern District of California July 23, 2003
* * CERTIFICATE OF SERVICE * *
2:94-cv-00671
Valdivias v.
Wilson et al

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Eastern District of California.
That on July 23, 2003, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office, or, pursuant to prior authorization by counsel, via facsimile.

Stephen J Perrello Jr

AR/LKK

Law Office of Stephen J Perrello

POBox 880738

VC/GGH

San Diego, CA 92168

Alexander L Landon Law Offices of Alex Landon 2442 Fourth Avenue San Diego, CA 92101

Karen Kennard Bingham McCutchen LLP Three Embarcadero Center Suite 1800 San Francisco, CA 94111

Michael W Bien Rosen Bien and Asaro 155 Montgomery Street Eighth Floor San Francisco, CA 94104

DCoansael2d:9S4-pcev-c0t0e6r71-LKK-GGH Document 796 Prison Law Office General Delivery San Quentin, CA 94964

Filed 07/23/03 Page 18 of 18

William Vernon Cashdollar Attorney General's Office for the State of California PO Box 944255 1300 I Street Suite 125 Sacramento, CA 94244-2550

Erika C Aljens
Attorney General's Office for the State of California PO Box 944255 1300 I Street Suite 125 Sacramento, CA 94244-2550

Thomas Stuart Patterson California Attorney General's Office 455 Golden Gate Avenue Suite 11000 San Francisco, CA 94102-7004

John T Philipsborn Law Offices of John T Philipsborn 507 Polk Street Suite 250 San Francisco, CA 94102

Kristen A Palumbo Bingham McCutchen Three Embarcadero Center San Francisco, CA 94111-4067

Jack L. Wagner, Clerk
BY: Deputy Cler

 
 Case 2:94-cv-00671-LKK-GGH Document 821 Filed 12/03/03 Page 1 of 17
ORIGINAL

BINGHAM, McCUTCHEN, LLP KAREN KENNARD - 141925 2 KRISTEN A. PALUMBO - 215857 Three Embarcadero Center 3 San Francisco, California 94111-4067 Telephone: (415) 393-2000 4 PRISON LAW OFFICE 5 DONALD SPECTER - 83925 General Delivery 6 San Quentin, California 94964 Telephone: (415) 457-9144 7
8 STEPHEN J. PERRELLO, JR. - 56288
9 P.O. Box 880738 San Diego, California 92618
10 Telephone: (858) 277-5900

FILED

DEC, 32003

i~II::b~a~R~bVS~cJAcouFuRT

.,,;,

ORHIA

ROSEN, BIEN & ASARO, LUiAiff&ii

MICHAEL W. BIEN - 096891

ERNEST GALVAN - 196065

MARl L. WILLITS - 209612

155 Montgomery Street, 8th Floor

San Francisco, California 94104

Telephone (415) 433-6830

ALEX LANDON - 50957 2442 Fourth Avenue San Diego, California 92101 Telephone: (619) 232-6022

11

12

1

DES - ~ 2003

m.e RK.US.D!S!t1I:::rc JAT

t1N [,!.:.

10': :';' \..iFQRNIA

-<-

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
SACRAMENTO DIVISION

17

No. Civ. S-94-0671 LKKJGGH

18

Plaintiffs,

19 v.

20 ARNOLD SCHWARZENEGGER, et al.,

21

Defendants.

[PROPOSED WITH DATES] ORDER GRANTING MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT, AND SCHEDULING HEARING ON FINAL SETTLEMENT APPROVAL

22

HEARING

23

Date: December 1, 2003

Time: 1:30 p.m.

24

25

26

27

28

Case 2:94-cv-00671-LKK-GGH Document 821 Filed 12/03/03 Page 2 of 17

Whereas, this Court has presided over the proceedings in the above-captioned action

2 (the "Class Action") and has reviewed all of the pleadings, records, and papers on the file

3 herein;

4

Whereas, the parties have entered into a Stipulated Order for Permanent Injunctive

5 Relief, which was lodged with the Court on November 18,2003;

6

Whereas, the Court has reviewed the Stipulated Order for Permanent Injunctive Relief

7 together with the Exhibits thereto, and has heard the attorneys for the parties: with respect to the

8 proposed settlement of this action;

9

Whereas, the Court has determined that inquiry should be made as to the fairness and

10 adequacy of this proposed settlement; and

11

Whereas, the Court has conducted a hearing respecting the reasonableness of

12 proceeding with this proposed settlement, and good cause appearing therefore, now finds and

13 orders as follows:

14

FINDINGS

15

1. The Court finds that the proposed settlement falls within the range of possible

16 approval and is sufficiently fair to warrant the dissemination of notice to the proposed class

17 members apprising them of the settlement, and finds that the proposed class, as defined in

18 Paragraph 5, below is proper.

19

2. The proposed settlement is the product of arm's-length, serious, informed and

20 non-collusive negotiations between experienced and knowledgeable counsel who have actively

21 prosecuted and defended this litigation.

22

3. The Settlement Agreement is granted preliminary approval and incorporated

23 herein by this reference, and has the full force and effect of an order of this Court.

24

4. A hearing is appropriate to consider whether this Court should grant final

25 approval to this settlement, and to allow adequate time for members of the class, or their

26 counsel, to support or oppose this settlement.

27

GOOD CAUSE APPEARING THEREFORE, IT IS HEREBY ORDERED:

28

5. This action is determined to be properly maintained as a class action pursuant to

Case 2:94-cv-00671-LKK-GGH Document 821 Filed 12/03/03 Page 3 of 17

1 Rule 23(b)(2), Federal Rules of Civil Procedure, with a class consisting of: 1) California

2 parolees who are at large (all California parolees who are not in custody); 2) California

3 parolees in custody as alleged parole violators, and who are awaiting revocation of their state

4 parole; and 3) California parolees who are in custody, having been found in violation of parole

5 and sentenced to prison custody.

6

6. A short and long written notice attached hereto shall be disseminated to the class.

7

7. Within 28 days after the Court orders Preliminary Approval, or as soon thereafter

8 as practicable, the Notice shall be disseminated to the Class, substantially in the forms attached

9 hereto by the following means:

10

(1) For the portion of the class consisting of California

parolees who are at large (all California parolees who are not in

11

custody), the short written notice shall be posted in all parole field

12

offices. Copies of the long written notice, the Stipulated Order for

Permanent Injunctive Relief, and large print and audio copies of the

13

short and long written notices shall be available in all parole field

14

offices. Parolees who are not required to report to the parole office

during the notice period, shall receive the short written notice by

15

first class mail, or shall be provided with the short notice in person

by their parole agent, and may come to the field office to read the

16

long notice and the Stipulated Order for Permanent Injunctive

17

Relief.

18

(2) For members of the class who are California parolees in

19

custody as alleged parole violators, the short written notice shall be

20

(a) posted in all California prisons, reception centers, jails and

other facilities where Defendants require parolees to be held in

21

such a manner as to make the notice visible to all parolees in

custody; (b) posted in each room where revocation serves and

22

hearings take place; (c) served on parolees who are being served

23

with revocation charges and/or screening offers during the notice

period as part of their revocation documents; and (d) served on

24

parolees who appear for parole revocation hearings. Copies of the,

25

long notice, the Stipulated Order for Permanent Injunctive Relief,

and large print and audio copies of the short and long written notice

26

shall be made available in each facility, in locations such as prison

and jail libraries, where Defendants require parolees to be held.
27

28

Case 2:94-cv-00671-LKK-GGH Document 821 Filed 12/03/03 Page 4 of 17

1

(3) For the portion of the class who are California parolees

in custody, having been found in violation of parole and sentenced

2

to prison custody, the short written notice shall be posted in all

3

California prisons and reception centers in such a manner as to

make the notice visible to all parolees in custody. Copies of the

4

long notice, the Stipulated Order for Permanent Injunctive Relief,

5

and large print and audio copies of the long and short written notice

shall be made available in each facility, in locations such as prison

6

and jail libraries, where Defendants require parolees to be held.

7

8. The expense of giving notice to the class members shall be paid by the
8

Defendants. Dissemination of the Notice as provided above is hereby authorized and 9

approved, and satisfies the notice requirement of Rule 23(e), Federal Rules of Civil Procedure,
10

the Constitution of the United States, due process and any other applicable mle(s) of this
11

Court.
12

9. No later than December 29, 2003, Defendants must file and serve on Plaintiffs'
13

counsel an affidavit affirming that they published notice as required in this order.
14

10. Any member of the class may enter an appearance on their own behalf in this
15

action through that class member's own attorney (at their own expense), but need not do so.
16

Class members who do not enter an appearance through their own attorneys will be represented I
17

by the Plaintiffs as class representatives and their counsel. Alternatively, any member of the
18

class may write to the federal court about whether the settlement is fair. The federal court will
19

consider written communications when deciding whether to approve the settlement. 20

Comments regarding the fairness of the settlement MUST include at the top of the first page
21

the case name (Valdivia v. Schwarzenegger) and case number (S-94-0671 LKKJGGH). 22

Comments must be postmarked by February 9, 2004 and must be sent to the following 23

address:
24

Clerk of the Court

25

United States District Court

26

Eastern District of California

501 "I' Street

27

Sacramento, CA 95814

28

Case 2:94-cv-00671-LKK-GGH Document 821 Filed 12/03/03 Page 5 of 17

1

11. A final approval hearing pursuant to Rule 23(e), Federal Rules of Civil

2 Procedure, will be in the Courtroom of the undersigned on March 8, 2004, at 10:00 a.m. in

3 the United States District for the Eastern District of California, Sacramento Division, to

4 determine whether the proposed settlement is fair, reasonable and adequate, and whether it

5 should be finally approved by the Court. The hearing may be continued from time to time

6 without further notice.

7

12. Briefs in support of final approval shall be filed on or before F'ebruary 19, 2004.

8

13. Plaintiffs' motion for reasonable attorneys' fees and expenses shall be filed and

9 served no later than April 2, 2004. Defendants' response to the fees motion shall be filed and

10 serve no later than April 30, 2004. Plaintiffs' reply shall be filed and served no later than May

11 28,2004. A hearing on the motion for attorneys' fees and expenses shall be held on June 7,

12 2004.

13

14. A status conference is set for March 1,2004 at 2:30 p.m. for the parties to report

14 to the Court on the two unresolved issues regarding administrative appeals and revocation

15 extensions.

16

17

IT IS SO ORDERED

18 Dated:~, 2003
19

20

21

22

23

24

25

26

27

28

Case 2:94-cv-00671-LKK-GGH Document 821 Filed 12/03/03 Page 6 of 17

SECTasTeL2:E9M4-cEv-N00T67O1-FLKCKL-GAGSHS ADoCcuTmIOenNt 8-21PAFRileOd L12P/0R3/E03VOPaCgAe T7 IoOf 1N7

Valdivia v. SchwarzL ..egger, E.D. Cal. No. Civ. S-~rr-0671 LKK/GGH

Deadline for Comments On Fairness of Settlement:

, 2004

Valdivia v. Schwarzenegger is a statewide class action challenging the California
parole revocation system under the 14th Amendment of the u.s. Constitution. This
notice explains the proposed settlement, how you can read it, and how you can tell the court about whether you think it is fair. If you are a California parolee, you are part of the Valdivia class, whether you are out on parole, being held on revocation charges, or serving a revocation term. The Valdivia lawsuit seeks federal court orders to change the parole revocation system. No money damages were asked for, and none will be awarded in this class action case. The settlement does not affect your ability to sue for money damages or to petition for a writ of habeas corpus.

You can read about the changes in parole revocations in a longer version of this notice and in the Valdivia "Stipulated Order for Permanent Injunctive Relief." You can find this document in the prison law library, jail library, or parole office.

Under the agreement, by early 2004, some parolees will be sent to community-based programs, instead of prison. Starting between July 2004 and January 2005, all parolees will be appointed counsel for screening offers and revocation heanlngs. Parolees will receive faster notice of the charges against them. Parolees in some circumstances will receive expedited hearings on probable cause. Final revocation hearings must be held within 35 calendar days of the arrest. Parolees' attonneys will have better access to witnesses and evidence.

By July 2005, parolees held on revocation charges will receive probable-cause hearings within 10 business days after notice of the charges

The court will keep jurisdiction to enforce the requirements of the settlement. The

court will hold a hearing on the fairness of the settlement on

, 2004,

__ a.m.ip.m., at the United States Courthouse in Sacramento, Courtroom 4.

The attorneys who brought the class action will ask the Court to have defendants pay for their attorneys' fees and expenses. The Court will decide the amount of these fees.

Parolees can write to the federal court about whether the settlement is fair and whether they object to the award of attorneys' fees. Comments MUST include at the top of the first page the case name, Valdivia v. Schwarzenegger. Comments must be postmarked no later than
, and sent to the address at right.

Clerk of the Court United States District Court Eastern District of California
501 "I" Street Sacramento" CA 95814

For more information, you may contact the attorneys for the class:

Rosen, Bien & Asaro, LLP 155 Montgomery St., 8th FIr. San Francisco, CA 94104 Tel: (415) 433-6830

Prison Law Office General Delivery San Quentin, CA 94964.

Bingham McCutchen Three Embarcadero Center San Francisco, CA 94111

Case 2:94-cv-00671-LKK-GGH Document 821 Filed 12/03/03 Page 8 of 17

Case 2:94-cv-00671-LKK-GGH Document 821 Filed 12/03/03 Page 9 of 17

IMPORTANT NOTICE
SETTLEMENT OF CLASS ACTION - PAROLE REVOCATION
Valdivia v. Schwarzenegger, E.D. Cal. No. Civ. S-94-0671 LKKlGGH

Deadline for Comments On Fairness of Settlement: _ _ _ _ _,2004

Hearing on Fairness of Settlement:

----------------, 2004,

a.m./p.m.

United States Courthouse in Sacramento, Courtrooln 4.

Valdivia v. Schwarzenegger is a statewide class-action lawsuit that seeks to change the way California treats persons who are arrested on parole violations. A proposed settlement has been reached. The federal court must now decide if the settlement is fair. This notice explains the settlement, how you can read it, and how you can write to the court about whether you think it is fair.

The Valdivia v. Schwarzenegger class action was filed in 1994. If you are a California parolee, you are a member of the Valdivia class, whether you are out on parole, being held in jailor prison on revocation charges, or serving a revocation term. The lawyers for the parolees are Bingham & McCutchen; Prison Law Office; Stephen J. Perrello, Jr.; Alex Landon; and Rosen Bien & Asaro, 155 Montgomery Street, Suite 800, San Francisco, CA, 94104.

The individual defendants in this case are: Arnold Schwarzenegger, Governor of the State of California and Chief Executive of the state government; Roderick Q. Hickman, the Secretary of the California Youth and Adult Correctional Agency; Edward S. Alameida. Jr., Director of the California Department of Corrections; Richard Rimmer, Deputy Director of the California Department of Corrections, Parole and Community Services Division ("P&CSD"); Carol A. Daly, Commissioner and Chair of the Board of Prison Term ("BPT"); Alfred R. Angele, Sharon Lawin, Booker T. Welch, Jones M. Moore, and Kenneth L. Risen, BPT Commissioners; and Kenneth E. Cater, Chief Deputy Commissioner of the BPT.

Case 2:94-cv-00671-LKK-GGH Document 821 Filed 12/03/03 Page 10 of 17
The defendants include state officials in charge of the Board of Prison Terms ( "BPT") and the California Department of Corrections ("CDC"). The BPT and CDC officials are represented by Thomas Patterson, Deputy Attorney General, 455 Golden Gate Avenue, Suite 11000, San Francisco, CA 94102.
The Valdivia lawsuit challenges violations of parolees' rights under the Due Process Clause of the Fourteenth Amendment of the United States Constitution. The lawsuit asked the federal court to order the BPT and CDC to change parole revocation procedures to comply with the Constitution. No money damages were asked for, and none will be awarded in this class action case.
The Valdivia lawsuit claims that the BPT and CDC violated the Constitution in the following specific ways:
• The BPT and CDC arrest and hold parolees for weeks without any hearings to find out whether there is probable cause to hold them.
• The BPT and CDC do not tell parolees the charges against them or their rights before making parolees decide whether to accept a "screening offer." The BPT and CDC do not give parolees enough notice of the charges against them before the revocation or "Morrissey" hearing.
• The BPT and CDC use forms in parole revocation that are too hard to read.
• The BPT and CDC do not provide attorneys to represent parolees who should get attorneys under the Due Process Clause. When the BPT and CDC do provide attorneys, the attorneys do not get enough time to represent the parolee, and do not get enough information from the BPT and CDC.
• The BPT and CDC do not provide enough help for parolees with mental illness or other problems that make it hard for them to decide on screening offers or participate in revocation hearings.
• The BPT and CDC sometimes do not allow parolees to present wi1nesses and evidence needed to defend themselves at revocation hearings.
• The BPT and CDC sometimes do not allow parolees to cross-examine persons who provide evidence against them.
Page 2

Case 2:94-cv-00671-LKK-GGH Document 821 Filed 12/03/03 Page 11 of 17
• The BPT's system for parole revocation appeals is unfair.
In June 2002, the federal court ruled on a pre-trial motion (motion for summary judgment) that the BPT and CDC violate parolees' constitutional rights by holding parolees for weeks, and sometimes months, without any hearings to find out whether there is enough evidence ("probable cause") to arrest the parolee. This order was published. You can find it in the law library at 206 F. Supp. 2d 1068, or Page 1068 of Volume 206 of the Federal Supplement. All of the other issues in the case have not yet been decided. The settlement means that these issues will not go to trial, except for two issues (BPT appeals and revocation extension hearings) that are not part of the settlement, and that may go to trial.
On November 18, 2003, the attorneys for both sides gave the federal court a negotiated plan in the form of a "Permanent Injunction," which would settle the lawsuit, and require the BPT and CDC to change the parole revocation procedures to fix the problems listed above. If approved by the court, the Permanent Injunction will require many changes in the revocation system. Here are some of the most important changes.
• The BPT and CDC will use alternatives to parole revocation, such as treatment in the community, for some parolees who would otherwise be arrested on parole violation charges.
• The BPT and CDC must give the parolees notice of the charges within 3 business days of the placement of a parole hold.
• All parolees will receive attorneys in the revocation process. Attolmeys will help the parolees decide on any screening offers, and will represent parolees at any hearings.
• The BPT and CDC must provide attorneys with all non-confidential information they intend to use against the parolee. Due process limits what information the BPT and CDC can call confidential.
• Parolees' attorneys will be able to review parolees' field files.
• Attorneys will be provided with training on how to represent parolees effecti vel y.
Page 3

Case 2:94-cv-00671-LKK-GGH Document 821 Filed 12/03/03 Page 12 of 17
• If the attorney can show that there is no basis to continue holding the parolee, the BPT and CDC must provide an expedited (faster) hearing, six to eight business days after the parolee receives notice of the charges.
• Final revocation hearings must be held on or before the 35th calendar day after placement of the parole hold.
• Parolees' attorneys will be able to subpoena and present witnesses and documents for final revocation hearings, under the same way that the state can subpoena and present witnesses.
• Beginning July 1, 2005, the BPT and CDC must provide a preliminary hearing within 10 business days after the parolee has received notice of the charges, to find out if there is probable cause to hold the parolee. Parolees' attorneys will still be able to get a faster, expedited hearing, if they can show that there is no basis to hold the parolee.
• At the preliminary probable cause hearing, parolees will be allowed to present evidence to defend against the charges, or to show that revocation is not appropriate. The parolee and parolee's attorney will be allowed to present such evidence through the parolee's testimony, or through written documents.
• The BPT and CDC will not be permitted to use hearsay evidence against a parolee in a manner that violates the parolees' right to confront his or her accusers.
• The federal court will keep jurisdiction to enforce these requirements, and plaintiffs' counsel in Valdivia will monitor how the BPT and CDC comply.
• The settlement does not cover claims involving BPT appeals, and involving parole revocation extension hearings. These claims may still go to trial.
The settlement does not affect parolees' ability to sue the BPT and CDC for money damages regarding parole revocation, or to petition for a writ of habeas corpus. However, in any case asking for class or systemic relief, BPT and CDC officials may argue that the lawsuit should be dismissed because of the Valdivia settlement.
Page 4

Case 2:94-cv-00671-LKK-GGH Document 821 Filed 12/03/03 Page 13 of 17

As part of this settlement, the attorneys for the parolees will ask the Court to have defendants' pay for attorneys' fees and expenses. The amount of these fees will be decided by the Court.

The Valdivia v. Schwarzenegger proposed settlement is set forth in a "Stipulated Order for Permanent Injunctive Relief." You can read this document at the prison law library, jail library, or parole office.

Comments On the Fairness of the Settlement Are Due - - - - - - - -
Parolees can write to the federal court about whether the settlement is fair and whether they object to attorneys' fees. The federal court will consider written comments when deciding whether to approve the settlement. Comments about the fairness of the settlement MUST include at the top of the first page the case name, Valdivia v. Schwarzenegger.

Comments must be received by _ _ _ _ _ _ _, and must be sent to the following address:

Clerk of the Court United States District Court Eastern District of California
501 "I" Street Sacramento, California 95814

The Court has scheduled a hearing on the fairness of the settlement for

______, 2004,

a.m.ip.m. at the United States Courthouse in

Sacramento, at the above address, in Courtroom 4.

For more information regarding this settlement, you may contact the parolees' lawyers at the following address and phone number:

Rosen, Bien & Asaro, LLP 155 Montgomery St., Eighth Floor
San Francisco, CA 94104 Telephone: (415) 433-6830

Page 5

Case 2:94-cv-00671-LKK-GGH Document 821 Filed 12/03/03 Page 14 of 17
Prison Law Office General Delivery San Quentin, CA 94964 Bingham McCutchen 3 Embarcadero Center San Francisco, CA 94111
Large print and audio tape versions of this document are available in the prison law library, jail library and parole office.
Page 6

Case 2:94-cv-00671-LKK-GGH Document 821 Filed 12/03/03 Page 15 of 17

1

PROOF OF SERVICE

2

I, the undersigned, certify and declare that I am over the

3 age of 18 years, employed in the City and County of San
4 Francisco, California, and not a party to the within action.
5
My business address is 155 Montgomery Street, 8th floor,
6
San Francisco, California 94104. On the date specified below, I
7
served a true copy of the following document(s):
8

9
[PLAINTIFFS' PROPOSED] ORDER GRANTING MOTION FOR PRELIMINAR

10

APPROVAL OF CLASS ACTION SETTLEMENT AND SCHEDULING HEARING ON FINAL SETTLEMENT APPROVAL

11

12 on the parties in said action by causing same to be

13 delivered in the manner listed below:

14 BY U.S. MAIL

15

Thomas S. Patterson

Deputy Attorney General

16

Office of the California Attorney General

455 Golden Gate Avenue, Suite 11000

17

San Francisco, CA 94102-7004

18

19

I declare under penalty of perjury that the foregoing is

20 true and correct. Executed this 1st day of December, 2003, at

21 San Francisco, California.

22

23

24

/

25

/

26

27

28

Case 2:94-cv-00671-LKK-GGH Document 821 Filed 12/03/03 Page 16 omfm117 United States District Court for the
Eastern District of California December 3, 2003
* * CERTIFICATE OF SERVICE * *
2:94-cv-00671
Valdivias v.
Wilson et al

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Eastern District of California.
That on December 3, 2003, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office, or, pursuant to prior authorization by counsel, via facsimile.

William Vernon Cashdollar Attorney General's Office 1300 I Street, Suite 125 Sacramento, CA 94244-2550
Stephen J Perrello Jr Law Office of Stephen J Perrello POBox 880738 San Diego, CA 92168
Alexander L Landon Law Offices of Alex Landon 2442 Fourth Avenue San Diego, CA 92101
Laurel M Nelson NOT ED-CA ADMITTED Law Offices of Laurel M Nelson POBox 462075 Escondido, CA 92046
Karen Kennard Bingham McCutchen LLP Three Embarcadero Center, Suite 1800 San Francisco, CA 94111

AR/LKK

Michael W Bien RCosaesne 2B:9i4e-ncv-a0n0d67A1-sLaKrKo-GGH Document 821 155 Montgomery Street, Eighth Floor San Francisco, CA 94104

Filed 12/03/03 Page 17 of 17

Donald Specter Prison Law Office General Delivery San Quentin, CA 94964

Thomas Stuart Patterson California Attorney General's Office 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102-7004

John T Philipsborn Law Offices of John T Philipsborn 507 Polk Street, Suite 250 San Francisco, CA 94102

Kristen A Palumbo Bingham McCutchen LLP Three Embarcadero Center San Francisco, CA 94111-4067

Peter D Nussbaum Altshuler Berzon Nussbaum Rubin and Demain 177 Post Street, Suite 300 San Francisco, CA 94108

Jack L. Wagner, ~i~~
BY'~ 1 Deputy Clerk

 
 Case 2:94-cv-00671-LKK-GGH Document 1044 Filed 03/17/04 Page 1 of 6

Received at: 3:53PM, 3/15/2004

03/15/2004 15:52 FAX 415 433 7104

ROSEN BIEN ASARO

I4J 003

FILED

1 BINGHAM McCUTCHEN LLP KAREN L. KENNARD (State BarNo. 141925)
2 KRISTEN A. PALUMBO (State BarNo. 215857) Three Embarcadero Center
3 San Francisco, California 94111-4067 Telephone: (415) 393-2000
4 ROSEN, BIEN & ASARO
5 MICHAEL W. BIEN (State Bar No. 96891) 155 Montgomery Street
6 San Francisco, California 94104 Telephone: (415) 433-6830
7
8 STEPHEN J. PERRELLO, JR. (State Bar No. 56288)
9 P.O. Box 880738 San Diego, California 92168
10 Telephone: (619) 277-5900

CLERK, U.S. DISTRICTOOURT ,,, :;ASTERN DISTRICT OF CAL.IFORt •.
PRISON LAW OFFICE DONALD SPECTER (State Bar No. 83925) General Delivery San Quentin, California 94964 Telephone: (415) 457-9144
ALEX LANDON (State Bar No. 50957) 2442 Fourth Avenue San Diego, California 92101 Telephone: (619) 232-6022

11 Attorneys for Plaintiffs

12

IN THE UNITED STATES DISTRICT COURT

13

FOR THE EASTERN DISTRICT OF CALIFORNIA

14

15 JERRY VALDIVIA, et ai., on their own behalf and on behalf of the class of all persons similarly
16 situated,

17

Plaintiffs,

18

v.

No. Civ. S-94-0671 LKK/GGH
[PR~] ORDER GRANTING
FINAL APPROVAL OF STIPULATED ORDER FOR PERMANENT INJUNCTIVE RELIEF

19 ARNOLD SCHWARZENEGGER, et aI.,

20

Defendants.

21

22

23

24

25

26

S F:21549777. 3/2096900-2969000039

Case No. Civ. 8-94-0671 LKKlGGH

Case 2:94-cv-00671-LKK-GGH Document 1044 Filed 03/17/04 Page 2 of 6

Received at: 3:53PM, 3/15/2004

03/15/2004 15:53 FAX 415 433 7104

ROSEN BIEN ASARO

I4l 004

1

WHEREAS, this Court has presided over the proceedings in the above-captioned

2 case (the "Class Action") from its inception; and

3

WHEREAS, the parties entered into a Stipulated Order for Pennanent Injunctive

4 Relief, lodged with the Court on November 18, 2003, which resolves all but two issues presented

5 in the case; and

6

WHEREAS, the Court has reviewed the Stipulated Order for Pennanent

7 Injunctive Relief together with the Exhibits thereto; and

8

WHEREAS, on December 3,2003, the Court preliminarily approved of the

9 Stipulated Order for Permanent Injunctive Relief and ordered that notice of the proposed

10 settlement be disseminated to the Plaintiff Class; and

11

WHEREAS, on March 8, 2004, this matter came before the Court for hearing

12 pursuant to Federal Rule of Civil Procedure 23(e) and the Order of this Court dated December 3,

13 2003, on the application of the parties for final approval of the proposed settlement set forth in

14 the Stipulated Order for Permanent Injunctive Relief, with no objectors appearing at the hearing;

15 and

16

WHEREAS, due and adequate notice having been given to the Plaintiff Class

17 defined below as required by the Court's December 3,2003 Order, and the Court having

18 considered all papers filed and proceedings in this case, the pleadings and papers filed in support

19 of final approval of the settlement, as well as all written objections to the proposed settlement,

20 and otherwise being fully informed regarding this litigation and good cause appearing therefore;

21 the Court now finds and orders as follows:

22

FINDINGS

23

1. The Court, having carefully considered the objections to the proposed

24 settlement, finds that the proposed settlement set forth in the Stipulated Order for Permanent

25 Injunctive Relief is fair, adequate and reasonable, and further finds that, notwithstanding the

26 objections received, the benefit to the Plaintiff Class supports final approval of the proposed

SF:21549777.3/2096900-2969000039

2

Case No. Civ. 8-94-0671 LKKJGGH

~~~- - - - - - - -

----

Case 2:94-cv-00671-LKK-GGH Document 1044 Filed 03/17/04 Page 3 of 6

Received at: 3:53PM, 3/15/2004

03/15/2004 15:53 FAX 415 433 7104

ROSEN BIEN ASARO

I4J 005

1 settlement in light of all of the relevant considerations, including the fact that the Defendants

2 have filed a Notice of Appeal from the Court's July 23, 2003 ruling.

3

2. The Court further finds that the proposed settlement is the product of

4 ann's-length, serious, and non-collusive negotiations between experienced and knowledgeable

5 counsel for the Plaintiff Class and Defendants, who have actively and competently prosecuted

6 and defended this litigation.

7

IT IS HEREBY ORDERED THAT:

8

1. This action is determined to be properly maintained as a class action

9 pursuant to Rule 23(b)(2), Federal Rules of Civil Procedure, with a class consisting of (l)

10 California parolees at large; (2) California parolees in custody, as alleged parole violators, and

11 who are awaiting revocation of their state parole; and (3) California parolees who are in custody,

12 having been found in violation of parole and who have been thereupon sentenced to prison

13 custody.

14

2. This Court has jurisdiction over the subject matter of this litigation and

15 over all parties to the action, including all members ofthe Plaintiff Class (as defined above).

16

3. The notices disseminated to the Plaintiff Class in the forms attached to the

17 Court's December 3, 2003 Order and by the means described in Paragraph 7 of that Order

18 constituted the best notice practicable under the circumstances. Said notices provided due and

19 adequate notice of those proceedings and of the matters set forth therein, including the proposed

20 settlement set forth in the Stipulated Order for Permanent Injunctive Relief, to all persons

21 entitled to such notice, and said notices fully satisfied the requirements of Rule 23(e) of the

22 Federal Rules of Civil Procedure, the Constitution of the United States, due process and any

23 other applicable rule(s) of this Court.

24

4. The proposed settlement set forth in the Stipulated Order for Pennanent

25 Injunctive Relief is, in all respects, fair, reasonable and adequate to the Plaintiff Class. The

26 SF :21549777 .3/2096900-2969000039

3

Case No. Civ. S-94-0671 LKK/GGH

Case 2:94-cv-00671-LKK-GGH Document 1044 Filed 03/17/04 Page 4 of 6
Received at: 3:53PM, 3/15/2004

03/15/2004 15:54 FAX 415 433 7104

ROSEN BIEN ASARO

I4J 006

1 Stipulated Order for Permanent Injunctive Relief was granted final approval at the hearing on 2 March 8, 2004 and has been entered as an Order of this Court on March 9,2004.

3

5. Without affecting the finality of this Order in any way, this Court hereby

4 retains continuing jurisdiction over (a) implementation of this settlement and the Stipulated

5 Order for Permanent Injunctive Relief; (b) hearing and determining applications for attorneys'

6 fees, costs, interest and expenses in the Class Action; and (c) all parties hereto for the purpose of

7 enforcing and administering the Stipulated Order for Permanent Injunctive Relief.

8

6. By May 24, 2004, the parties are ordered to lodge with the Court a

9 proposed form of final notice to the Plaintiff Class which shall also resolve the two issues

10 remaining for resolution. Ifby May 24, 2004 the parties are not able to resolve the two

11 remaining issues, or are unable to stipulate to a form of final notice, the parties are ordered to

12 appear before this Court at a status conference on May 24, 2004 at 10:00 a.m. The status

13 conference previously set by the Court for May 3,2004, at 2:00 p.m. is hereby vacated.

14

15

16

17

18

19

20

21

22

23

24

25

26
S F:21549777 .3/2096900-2969000039

4

Case No. Civ. S-94-0671 LKKJGGH

Case 2:94-cv-00671-LKK-GGH Document 1044 Filed 03/17/04
United States District Court for the
Eastern District of California March 17, 2004

Page 5 of 6 nac

* * CERTIFICATE OF SERVICE * *

2:94-cv-00671

Valdivias v.
Schwarzenegger

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Eastern District of California.
That on March 17, 2004, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing sa:Ld envelope in the U.S. Mail, by placing said copy(ies) into an in1:er-office delivery receptacle located in the Clerk's office, or, pursuant to prior authorization by counsel, via facsimile.

Stephen J Perrello Jr Law Office of Stephen J Perrello POBox 880738 San Diego, CA 92168
Alexander L Landon Law Offices of Alex Landon 2442 Fourth Avenue San Diego, CA 92101
Karen Kennard Bingham McCutchen LLP Three Embarcadero Center Suite 1800 San Francisco, CA 94111
Michael W Bien Rosen Bien and Asaro 155 Montgomery Street Eighth Floor San Francisco, CA 94104
Donald Specter Prison Law Office General Delivery San Quentin, CA 94964

AR/LKK

Case 2:94-cv-00671-LKK-GGH Document 1044 Filed 03/17/04 Page 6 of 6 William Vernon Cashdollar Attorney General's Office for the State of California
PO Box 944255 1300 I Street Suite 125 Sacramento, CA 94244-2550

Erika C Aljens Attorney General's Office for the State of California
PO Box 944255 1300 I Street Suite 125 Sacramento, CA 94244-2550

Benjamin Laurence Pavone Law Office of Benjamin Pavone 7676 Hazard Center Drive Fifth Floor San Diego, CA 92108-4503

Thomas Stuart Patterson California Attorney General's Office 455 Golden Gate Avenue Suite 11000 San Francisco, CA 94102-7004

John T Philipsborn Law Offices of John T Philipsborn 507 Polk Street Suite 250 San Francisco, CA 94102

Kristen A Palumbo Bingham McCutchen LLP Three Embarcadero Center San Francisco, CA 94111-4067

Peter D Nussbaum Altshuler Berzon Nussbaum Rubin and Demain 177 Post Street Suite 300 San Francisco, CA 94108

Mark F Adams San Diego Criminal Defense Bar Association 962 Fifth Avenue Suite 214 San Diego, CA 92101

Michael J McCabe Criminal Defense Lawyers Club of San Diego 2442 Fourth Avenue San Diego, CA 92101

Jack L. Wagner, Clerk
~.~

 
 Case 2:94-cv-00671-LKK-GGH Document 1034 Filed 03/09/04 Page 1 of 23

\

r

FILlED' .

1 BINGHAM McCUTCHEN KAREN KENNARD -141925
2 KRISTEN A. PALUMBO - 215857 Three Embarcadero Center
3 San Francisco; California 94111-4067 Telephone: (Ll-15) 393-2000
4
PRISON LAW OFFICE 5 DONALD SPECTER - 83925
General Delivery 6 San Quentin, California 94964
Telepnone: (415) 457-9144
7
8
STEPHEN J. PERRELLO, JR. - 56288 9 P.O. Box 880738
San Diego, California 92618 10 Telephone: (858) 277-5900

I [~-~~~

CLtRK. iJ::; iJI~; ,RiCl COURT
'-::-:::---'------ ;: tEN DISTRICT OF CAUFORNIA "."."

ROSEN, BIEN &

:'

MICHAEL W. BIEN - 096891

ERNEST GALVAN - 196065

MARI L. WILLITS - 209612

155 Montgomery Street, 8th Floor

San FranCISCO, CalifornIa 94104

Telephone (415) 433-6830

ALEX LANDON - 50957 2442 Fourth Avenue
San Diego, California 92101 Telephone: (619) 232-6022

11

(~ov 1 J ZOO3

UNITED STATES DISTRICT COURT

LfHKN,DUlS.TSR.O1CIS'OmOlfCClACUOfORURNT1A EASTERN DISTRICT OF CALIFORNIA 'L:.~~~o:':':rp~uT~vC~I"":;;K-;--

17 JERRY VALDIVIA, et aI.,

18 19
20 v.

Plaintiffs,

21 ARNOLD SCHWARZENEGGER, et aI., 22
Defendants.

No. Civ. S-94-0671 LKK/GGH
STIPULATED ORDER FOR PERMANENT INJUNCTIVE RELIEF

Case 2:94-cv-00671-LKK-GGH Document 1034 Filed 03/09/04 Page 2 of 23

1 I. INTRODUCTION

2

1. This action was filed on May 2, 1994. Plaintiffs, on behalf of themselves

3 and the class they represent, challenged the constitutionality of parole revocation

4 procedures conducted by the California Board of Prison Terms ("BPT") and the

5 California Department of Corrections ("CDC").

6

2. The Court certified this case as a class action by order dated December 1,

7 1994. The Plaintiff class consists of the following persons: (1) California parolees who

8 are at large; (2) California parolees in custody as alleged parole violators, and who are

9 awaiting revocation of their state parole; and (3) California parolees who are in custody,

10 having been found in violation of parole and sentenced to prison custody.

11

3. The Defendants are state officials responsible for the policies and

12 procedures by which California conducts parole revocation proceedings.

13

4. On June 13,2002, this Court granted partial summary judgment in favor of

14 Plaintiffs, holding that California's unitary parole revocation system violates the due

15 process rights of the Plaintiff class under Morrissey v. Brewer, 408 U.S. 481 (1972),

16 Gagnon v. Scarpelli, 411 U.S. 778 (1973), and related authority. The Court held that

17 California's parole revocation system violated the due process clause of the Fourteenth

18 Amendment by "allowing a delay of up to forty-five days or more before providing the

19 parolee an opportunity to be heard regarding the reliability of the probable cause

20 determination." Valdivia v. Davis, 206 F. Supp. 2d 1068, 1078 (E.D. Cal. 2002).

21

5. The parties stipulate that this is not a "civil case with respect to prison

22 conditions," as those terms are defined and applied in the Prison Litigation Reform Act

23 ("PLRA"), 18 U.S.C. § 3626, and that therefore this Order is not governed by the

24 PLRA.

25

6. The parties hereby stipulate that the Court shall ADJUDGE, DECLARE,

26 AND DECREE as follows:

27

28

STIPULATED ORDER FOR PERMANENT INJUNCTIVE RELIEF,

Case 2:94-cv-00671-LKK-GGH Document 1034 Filed 03/09/04 Page 3 of 23

1 II. PARTIES

2

7. The Plaintiff class consists of the following persons: (1) California

3 parolees who are at large; (2) California parolees in custody as alleged parole violators,

4 and who are awaiting revocation of their state parole; and (3) California parolees who

5 are in custody, having been found in violation of parole and sentenced to prison

6 custody.

7

8. The Defendants are state officials responsible for the policies and

8 procedures by which California conducts parole revocation proceedings. Defendant

9 Arnold Schwarzenegger is Governor of the State of California and Chief Executive of

10 the state government. Defendant Roderick Q. Hickman is the Secretary of the

11 California Youth and Adult Correctional Agency. Defendant Edward S. Alameida, Jr.,

12 is Director of the California Department of Corrections. Defendant Richard Rimmer is

13 Deputy Director of the California Department of Corrections, Parole and Community

14 Services Division ("P&CSD"). Defendant Carol A. Daly is a Commissioner and Chair

15 of the Board of Prison Terms ("BPT"). Defendants Alfred R. Angele, Sharon Lawin,

16 Booker T. We1ch, Jones M. Moore, and Kenneth L. Risen are Commissioners of the

17 BPT. Defendant Kenneth E. Cater is Chief Deputy Commissioner of the BPT.

18

19 III. DEFINITIONS

20

9. The following terms when used in this Order shall have the meanings

21 specified below:

22

(a) "Parolee(s)" shall mean any member of the Plaintiff class.

23

(b) "Day(s)" shall mean calendar days, unless otherwise specified.

24

(c) "Revocation process" or "revocation proceedings" shall mean all stages of the

25 process by which parole may be revoked, including placement of a parole hold, notice,

26 waivers, service of Return to Custody Assessments, and hearings.

27

(d) "Return to Custody Assessments" ("RTCAs") shall mean the practice by

28 which Defendants offer a parolee a specific disposition in return for a waiver of the

STIPULATED ORDER FOR PERMANENT INJUNCTIVE RELIEF,

2

Case 2:94-cv-00671-LKK-GGH Document 1034 Filed 03/09/04 Page 4 of 23

1 parolee's right to a preliminary or final revocation hearing, or both.

2

(e) "Parole hold" shall mean any invocation by Defendants of their authority to

3 involuntarily detain a parolee for revocation proceedings under Section 3056 of the

4 California Penal Code. This term shall not apply to the detention of a parolee who has

5 absconded from the State of California until he or she is physically returned to the State

6 of California and is in its custody.

7

8 IV. POLICIES, PROCEDURES, FORMS, AND PLANS

9

10. For all policies, procedures, forms, and plans developed under this Order,

10 the parties shall use the following process: Defendants shall meet periodically with

11 Plaintiffs' counsel to discuss their development of policies, procedures, forms, and

12 plans. In preparation for such meetings, Defendants will provide Plaintiffs' counsel

13 with copies of the proposed policies, procedures, forms, and plans in draft form no later

14 than 7 days before the meeting. If the parties reach an impasse on any particular issues,

15 they may bring the disputed issues to the Court in a motion to be heard on shortened

16 time.

17

11. Using the procedure set forth above in Paragraph 10, Defendants shall do

18 the following:

19

(a) Defendants shall develop and implement sufficiently specific Policies and

20 Procedures that will ensure continuous compliance with all of the requirements of this

21 Order. The Policies and Procedures will provide for implementation of the August 21,

22 2003 Remedial Plan Outline (attached hereto as Exhibit A), as well as the requirements

23 set forth below in Paragraphs 12-24. Defendants shall submit the completed Policies

24 and Procedures to the Court no later than July 1, 2004.

25

(b) By July 1, 2004, Defendants shall begin implementing the following steps

26 in the parole revocation process, which shall be completely implemented by January 1, 27 2005:

28

(i) Defendants shall appoint counsel for all parolees beginning at the

STIPULATED ORDER FOR PERMANENT INJUNCTIVE RELIEF,

3

r;H C' Cilt (V... / l f V V l r : r : u

Case 2:94-cv-00671-LKK-GGH Document 1034 Filed 03/09/04 Page 5 of 23

1 RTeA stage of the revocation proceeding. Defendants shall provide an expedited

2 probable cause hearing upon a sufficient offer of proof by appointed counsel that there

3 is a complete defense to all parole violation charges that are the basis of the parole hold.

4

(ii) No later than 48 hours after the parole hold, or no later than the next

5 business day if the hold is placed on a weekend or holiday, the parole agent and unit

6 supervisor will confer to determine whether probable cause exists to continue the parole

7 hold, and will document their determination.

8

(iii) If the parole hold is continued thereafter, no later than 3 business days

9 after the placement of the hold, the parolee will be served with actual notice of the

10 alleged parole violation, including a short factual summary of the charged conduct and

11 written notice of the parolee's rights regarding the revocation process and timeframes.

12

(iv) For all parolees who do not waive or seek a continuance of a final

13 revocation hearing, Defendants shall provide a final revocation hearing on or before the

14 35th calendar day after the placement of the parole hold.

15

(c) By July 1,2004, Defendants shall serve on counsel for Plaintiffs an

16 assessment of the availability of facilities and a plan to provide hearing space for

17 separate probable cause hearings.

18

(d) By July 1,2005, in addition to the steps listed above, for all parolees who

19 do not waive or seek a continuance of a probable cause hearing, Defendants shall

20 provide a hearing to determine probable cause no later than 10 business days after the

21 parolee has been served with notice of the charges and rights (at the 3rd business day

22 after the placement of the hold).

23

(e) Defendants shall complete implementation of the Policies and Procedures

24 by July 1,2005.

25

12. In addition to the provisions of the August 21, 2003 Remedial Plan Outline,

26 the Policies and Procedures shall ensure that the following requirements are met:

27

13. At the time of appointment, counsel appointed to represent parolees who

28 have difficulty in communicating or participating in revocation proceedings, shall be

STIPULATED ORDER FOR PERMANENT INJUNCTIVE RELIEF,

4

r; .. crill IIh/1 I VVIr..r..u

Case 2:94-cv-00671-LKK-GGH Document 1034 Filed 03/09/04 Page 6 of 23

1 informed of the nature of the difficulty, including but not limited to: mental illness,

2 other cognitive or communication impairments, illiteracy, limited English-language

3 proficiency, and the need for a foreign language interpreter. The appointment shall

4 allow counsel adequate time to represent the parolee properly at each stage of the

5 proceeding.

6

14. At the time of appointment, counsel shall be provided with all non-

7 confidential reports and any other documents that the state intends to rely upon at the

8 probable cause or final revocation hearing. After appointment, if the state learns of

9 additional evidence or documents, and intends to rely on such additional evidence or

10 documents, it shall produce them to counsel as soon as practicable before the hearing.

11

15. Defendants shall develop and implement policies and procedures for the

12 designation of information as confidential that are consistent with the requirements of

13 due process.

14

16. Non-confidential portions of parolees' field files shall be available to

15 parolees' counsel unless good cause exists for failure to provide access to such files.

16 Field file information shall be withheld from counsel as confidential only in accordance

17 with the policies and procedures referenced in Paragraph 15.

18

17. Defendants shall develop standards, guidelines, and training for effective

19 assistance of state appointed counsel in the parole revocation process.

20

18. Defendants will ensure that parolees receive effective communication

21 throughout the entire revocation process.

22

19. Defendants will ensure that all BPT and CDC forms provided to parolees

23 are reviewed for accuracy and are simplified to the extent possible through a procedure

24 similar to that used to revise forms in Armstrong v. Davis, C94-2307 CW (N.D. Cal.).

25 This process will include translation of forms to Spanish. Revised fonns will be

26 submitted to Plaintiffs' counsel for review prior to finalization, dissemination, or

27 modification.

28

20. Upon written request, parolees shall be provided access to tapes of parole

STIPULATED ORDER FOR PERMANENT INJUNCTIVE RELIEF,

5

0;., C' nA n.t.:'., I l VV 1r..r..U

Case 2:94-cv-00671-LKK-GGH Document 1034 Filed 03/09/04 Page 7 of 23

1 revocation hearings.

2

21. Parolees' counsel shall have the ability to subpoena and present witnesses

3 and evidence to the same extent and under the same terms as the state.

4

22. At probable cause hearings, parolees shall be allowed to present evidence

5 to defend or mitigate against the charges and proposed disposition. Such evidence shall

6 be presented through documentary evidence or the charged parolee's testimony, either

7 or both of which may include hearsay testimony.

8

23. Final revocation hearings shall occur within 35 calendar days of the parole

9 hold.

10

24. The use of hearsay evidence shall be limited by the parolees' confrontation

11 rights in the manner set forth under controlling law as currently stated in United States

12 v. Comito, 177 F.3d 1166 (9th Cir. 1999). The Policies and Procedures shall include

13 guidelines and standards derived from such law.

14

15 V. STAFFING LEVELS

16

Defendants shall maintain sufficient staffing levels in the CDC and BPT to meet

17 all of the obligations of this Order.

18

19 VI. MONITORING

20

25. The parties shall cooperate so that Plaintiffs' counsel has access to the

21 information reasonably necessary to monitor Defendants' compliance with this Order

22 and the Policies and Procedures adopted in response thereto. Such information shall

23 include but not be limited to: access to documents, tours, observation IQf parole

24 revocation proceedings, observation of training sessions, interviews of staff, and

25 interviews with parolees. Plaintiffs' counsel may notice depositions under the Federal

26 Rules of Civil Procedure either: (1) if Plaintiffs' counsel are unable to obtain relevant

27 information through interviews and informal document requests, or (2) after notifying

28 Defendants of non-compliance with this Order under Section VII, below. Before

STIPULATED ORDER FOR PERMANENT INJUNCTIVE RELIEF,

6

Case 2:94-cv-00671-LKK-GGH Document 1034 Filed 03/09/04 Page 8 of 23

1 noticing a deposition, Plaintiffs' counsel must consult with opposing counsel about the

2 deposition schedule so that the convenience of counsel, witnesses, and parties may be

3 accommodated, if possible.

4

26. The parties shall meet regularly, and at least once every 90 days, to discuss

5 implementation issues. At least once every 90 days, Defendants shall provide Plaintiffs'

6 counsel with a report on hold-to-hearing time in substantially the same form, and with

7 the same content as that currently used in Defendants' weekly "RSTS" meetings.

8

27. The parties shall agree on a mechanism for promptly addressing concerns

9 raised by Plaintiffs' counsel regarding individual class members and emergencies.

10

11 VII. ENFORCEMENT

12

28. The Court shall retain jurisdiction to enforce the terms of this Order. The

13 Court shall have the power to enforce the terms of this Order through specific

14 performance and all other remedies permitted by law or equity.

15

29. If Plaintiffs' counsel believe that Defendants are not complying with any of

16 the acts required by this Order, the Remedial Plans, or Policies and Procedures produced

17 pursuant to it, they shall notify Defendants in writing of the facts supporting their belief.

18 Defendants shall investigate the allegations and respond in writing within 30 days. If

19 Plaintiffs' counsel are not satisfied with Defendants' response, the parties shall conduct

20 negotiations to resolve the issue(s). If the parties are unable to resolve the issue(s)

21 satisfactorily, Plaintiffs may move the Court for any relief permitted by law or equity. 22

23 VIII. ATTORNEY'S FEES AND COSTS

24

30. Plaintiffs are the prevailing party in this action. Plaintiffs' counsel may

25 move for an award of reasonable attorney's fees and costs for obtaining relief for the

26 Plaintiff class pursuant to 42 U.S.C. § 1988 or any other applicable law. Defendants

27 shall pay Plaintiffs' counsel reasonable attorney's fees for work performed in

28 connection with monitoring and enforcing this Order. The parties reserve the right to

STIPULATED ORDER FOR PERMANENT INJUNCTIVE RELIEF,

7

r;., Q 0,1 f'lt:..."'71 r vvlr.r.u

Case 2:94-cv-00671-LKK-GGH Document 1034 Filed 03/09/04 Page 9 of 23

1 !I address at a future date whether 42 U.S.C & 1997e(d) applies to an (l\\ard ofattornry'~
iI2 fees in this suit.

3! IX. RESOLUTION OF CLAIMS

4

!i
il

31. Thls stipulated order re~olve.;; <111 the claims in this case, ex(':ept the

51 i following, to the extent that they are alleged in the Fifth Amended Complaint, 1f at all:

II61'

(a) b~~J.§. Plaintiff.;; assert that Defendants' administrative-appeals system

I7 for parole-revocation and revocatJon-extension decisions violate~ the Due Pro('ess and

i I
8 Equal Protection Clauses of the Fourteenth Amendment

9,1

(b)

II10 policIes, procedures, and practices for extending parole revocations based on :lJ1egf'd

1111 rules vi olatlOD s while in custody v]olate the Due Pfl)Ce~:s Clause.

11 ii,

J2 The p;,H1ies anticipate that these issues will be resol\red inforr:n.ally, \Nlthout

III~ I r::rcd, for the COLrf :;.interventioIi. The parties w111 inform the Court if this does l1<'t II
14 II:I ,'-').(.'('-''lUf.

151 !

[611

IT IS SO STIPULATED.

1711
18 11 Dated: A!rJ.:~rc-.jJ, 2003 ,
19 i

ROSEN" BIEN & ASARO

20 II'
21 !

By ~AICHAEL BIEN

22 ! 23 11 Dated: ~~J}.c_' 2003

PRISON LAW OFFIC'E

224~,'1I,I

By _J)~_~~__ _. ____ "

26

DONALD SPECTER

27 1i!\

'I

Artorneys for P1ainil fL.

28

1 1

/1

!I
Ii

- - -. - - -
~.~,\

Case 2:94-cv-00671-LKK-GGH Document 1034 Filed 03/09/04 Page 10 of 23

,
)-\1i" I
,)
'- Ii
7 if ii I'
Sl!
911
I () !!
:i
Ii!:
,. I
I l 'i. II
l21 DiHed~ AJof/t!.~~/~___ ,,~\>n.~ I
1/ i
,"" ! I I
'''-i II
, i
161
I
171
181 Dated: 1!lYL~_/f3.l12003

/5 !
~ ;
2b ::

I" ,,;....'

, ,
, I

.::8 : 1
i

BILL LOCKYER, Attorney General

oftbe State of California

R R . 0'~BLe 'R'f .

A
L

lJl

'TIiT

)L LR, )':

C ' r)

!l'.';.

("':0m't,.,,{

A"slstant Attorney (renerai,

fRANCES T. GRU1-..JDER, ~en]or

ASsIstant Attorney General,

f01\; I I '"

. I',\r}l] A'~1"..J -.J, \Y'1V7(-)- ~,1V' L['.

Stipervi~ing Deputy Attorne),

~jeneral

u\ ~JA~ ______

THOtv'lAS S. PATTERSON,

Deputy At1crmey Gew:l<.ll

,\ t(OTIICYS for Defe;-ld?:JllS

B~¥~~

"

,-

Secretary. YOUt!l and Adl!)t

C'urn~ctiona] Agency

By

£:.l'),·rARD ALr' E H{ ~C

V~

(~
"o.J,

/""\

i

_, Y ...L~i.\"-, .."...:. _"

Djrector, CahD~mli .,'" ;;~p8rtlYlellt of

CorrectIOns

By - _\C~d__~aLt.'k___

CI~UL ,A, DALY

,9"---

Chmr, C ahfomia 8n,p,~ of ~'(isult

Terms

Case 2:94-cv-00671-LKK-GGH Document 1034 Filed 03/09/04 Page 11 of 23

'"j

ORDF:R

Ii

2 I'II,I

The Court finds that this is nOlo "civil case with respect to prison conditions," as

I'
111

those

terms

an-;

defined

and applied

in

the

PrislJo

LltigatlOl1

Rr~r,.!:·m

Act

("PL R A").,

',8

Ii

il4 u.s.c. ~ 3620. and that therefoH> trll~ 0] Q'''[' ~s riOt 2,0. ern~'r\ :')Y the PLRA. Detendantr:',

.Ii

.,
-

I
I

their agems.,

emvl,)yees~ and successU\'s :[1 '')::-{lU: an,' C'f(iered to compl:,.' WITh all the

61
i

terms

st,Hed

above.

c{~..R~-$- A~~{~ ! I

l hler Jo .'~e }'.mentus

! ,

j

"TIPl j L.A ['I::D ORDER FOR PI'RM\~'I·I,,! I:-~ It :"(11\;>: RI~!-'El.

, ._- .-~-.-'-- ----- .. -- --.
j !.I

Case 2:94-cv-00671-LKK-GGH Document 1034 Filed 03/09/04 Page 12 of 23

. ... /JILL LOCKYER
Attor".y (hMral

. atIJte of ell/i/,r";,, .
DEPAlI.TMBNT OF TU3TlCE

•

455 OO. LDSEANNGFARTA£NACVIESCNOO,SC.ASU94lT1.QE21.710000:40
1415 Tol Public:: 415 710033··5.1$1~O:1O
F = : US 703-5843 £.Mall: lboma"Pal1erso ~.ca.gav

August 20t 2003

The Honorable Lawrence K. ~l(On

ChiefJudic E~eritas United States District Court. ~tem District

501 "I" Street .

:

Sac;;ramento. CA 95814

.

RECEIVED AUG 22·2003
ROSEN BIEN & ASARO

RE: Jerry Va1di~ et 81. 'Y. Gray Davis. et aI.
No. USDC aD. Cal.. Cue GY-S.91;0671 LKK.QOH P

Dear Judge Karlton:

The foll~win8 is Dcfe~ts' revised remedial plan in this casco This pliUl represents a
tremendous aJll1)\UU ofworlc by the Defepdants and other state officials since the July 23, 2003
order. much ofwbich has been done recently while consulting Plaintiff's coUDScl.

Defendants continue to Work with Plaintiffs' counsel to refine the revised remedial plan
in efforts to perfect a viable revqcatiou system that affOtds appropriate process.

With this in mind, nei~ Plaintiffs nor Defendants dc!ire the Court to rule iDlmediately·
on the adequacy ofthe revised r&medial plan. Rather, theY hope to resolve the issues soon and,
of course. will advise the Cowt 9f the outcome oftheir efforts.

Sincerely.
~JL mOMAs S. PAITERSON Deputy Attorney Oenerai
A.ttomey for Defendants:

D»O.N-ALJD.SPl~~
Prison Law Office
Attorney for Plaintiffs

For ~n.L LOCKYER Attorney Generaf

Case 2:94-cv-00671-LKK-GGH Document 1034 Filed 03/09/04 Page 13 of 23

Valdivia Remedial Plan

Violation Occurs

+

Remedial Sanctions-If Appropriate
I (COP/SATCUlAlternate Placement)
I • t Probable Cause Detennlnallon RevlewlCase Conference regarding PC 3056 Hold •

Within 48 Hours of Hold Placement
(If on Weekend/Hoi no later than next
Business day)

• PCH Time starts 1st
day after Notice and -
runs for 10 Bus days

Parolee Noticed of Charges (Activity Report)/
- Interviewed and Provided Copies
(Charges, BPT 1073, Notice of Rights)

H ) 3 Business Days of Hold Placement

COPI

•
Violation Report Submitted by Agent of Record

r{*1-3 Bus Days

K ~ Violation Report Reviewed by Unit Supervisor
11 r Rev Pac~et Reviewed by Parole Administrator (PAD)

4 Bus Days

Remedial Sanction
~
( Case ) Resolved

-y

(

Decentralized Revocation Unit

Revocation Packets Received - Data Entry (RSTS)

~-------------------~

I

Attorneys Receive Revocation Packets

l

and Consult with Parolee

..

.
K5-6 Bus Days)

'-1

RTC Assessment by DC or PAD Offers Communicated to Attorneys

6-8 Bus Days

Acceptsl COP/CTS/
NICI Remedial Sanctions/ Dismiss

Expedited Hearing with Offer of Proof
•
Probable Cause Hearing DC or PAD/Attorney/Parolee ExculpatorylDocumentary Evidence Presented

f-(9-10 Bus Days)

Case )
r Resolved

+

Rejection of offer

(Witness Selection/Hearing Location/ADA Review)

(
l

..
Revocation Hearing

)-

On or Before 35 Calendar
Days of Hold

Placement

ReVISed 8/21/03 (1130 Hours)

Case 2:94-cv-00671-LKK-GGH Document 1034 Filed 03/09/04 Page 14 of 23
-- ,
VALDIVIA REMEDIAL PLAN POLICY OUTLINE
VIOLATION OCCURS
There are a myriad of circumstances under which a Parolee can violate his or her conditions of parole. There are approximately 100,000 parole violations referred to the Board of Prison Terms each calendar year.
Currently about 60% of the reported violations are the result of arrests by local law enforcement. Of that 60% arrested by local law enforcement, many are charged in the local jurisdictions for crimes against the state, while others are not charged locally but instead referred to the Board of Prison Terms for administrative disposition. -
The remaining 40% are arrests that involve the Parole officer, which may also result in local charges or referral to the Board of Prison Terms for administrative disposition.
The average parole violator's term in prison is five and one halfmonths.
Approximately 66% of the cases referred to the Board of Prison Terms are resolved prior to the revocation hearing. Last year, the Board of Prison Terms conducted approximately 37,000 revocation hearings.
REMEDIAL SANCTIONS
As part of the overall reform of the revocation process, the Parole and Community Services Division ofthe Department of Corrections will begin using remedial sanctions/community based treatment placement in January of 2004.
Some of the remedial sanctions/community based treatment programs that will be used are the Substance Abuse Treatment Control Units, Electronic Monitoring, Self-Help Outpatient/aftercare programs, and alternative placement in structured and supervised environments.

Case 2:94-cv-00671-LKK-GGH Document 1034 Filed 03/09/04 Page 15 of 23
These remedial sanctions are not considered violations of parole because participation in the remedial sanctions program is voluntary and participation in the remedial sanctions program will not make the parolee presumptively ineligible for discharge at 13 months.
The goal is to reduce the number of returns to prison for violations of parole by up to 10% in 2004 and by up to 30% by 2006.
IF REMEDIAL SANCTIONS ARE DEEMED INAPPROPRIATE AND A PAROLE HOLD IS PLACED ON THE PAROLEE, A PROBABLE CAUSE DETERMINATIONIREVIEW WILL TAKE PLACE WITHIN 48 HOURS OF THE HOLD AND IF THE HOLD IS PLACED ON A WEEKEND OR HOLIDAY, THE PROBABLE CAUSE REVIEW WILL BE CONDUCTED NO LATER THAN THE NEXT BUSINESS DAY FOLLOWING THE HOLD BEING PLACED.
Although this probable cause review for parolees is not required under any of the current, relevant case law, it is being put in place in an attempt to take a second look at those individuals who have been placed into custody to determine ifthe "present danger to public safety" concern still exists or if remedial sanctions/community based treatment is possible at this juncture.
As an example, a parolee who was strung out on dope may have "dried out" sufficiently that he or she is no longer a danger to him or herself or the public and may be an appropriate candidate for community based treatment in a structured, supervised program.
Under such a scenario, the parolee would be released to a community based treatment program with the understanding that a specific condition of his or her release is the completion of the program and any other special conditions of parole that the Parole Agent deems appropriate.
Current regulation and case law require any special conditions of parole to have a nexus to the parolees' commitment offense or behavioL
2

Case 2:94-cv-00671-LKK-GGH Document 1034 Filed 03/09/04 Page 16 of 23
~ - + .1,
PAROLEE IS GIVEN ACTUAL WRITTEN NOTICE OF CHARGES WITH A SHORT FACTUAL SUMMARY OF THE BEBAVIOR; THE NOTICE OF RIGHTS REGARDING THE REVOCATION PROCESS; AND THE BPT 1073 ADA DETERMINATION IS MADE VIA A FACE TO FACE INTERVIEW WITHIN 3 BUSINESS DAYS OF THE HOLD BEING PLACED.
If the remedial sanctions are deemed inappropriate, within three business days of the hold being placed, the parolee shall be served actual notice ofthe charges against him or her accompanied by a short factual summary of the behavior; he or she shall be interviewed; an a ADA detennination shall be made; the BPT form 1073 shall be completed, and parolee shall be provided with a written notice of rights regarding the revocation process and time frames. (Hereinafter referred to as "notice.")
The principles of "effective communication" apply to the revocation process. ADA accommodation must be provided "ror all parolees when necessary. In addition, all forms shall be printed in Spanish and English and a Spanish speaking person shall be available to interpret and explain the forms to the parolee where necessary.
THE PROBABLE CAUSE HEARING SHALL BE CONDUCTED WITHIN 10 BUSINESS DAYS FOLLOWING THE DATE OF ACTUAL SERVICE OF THE NOTICE OF CHARGES, THE ADA DETERMINATION, AND THE NOTICE OF RIGHTS.
Within the first 3 days after the parolee has been served with notice, the violation report must be completed and submitted to the Parole Unit supervISor .
On or before the fourth business day, the Unit Supervisor must review the report and: (1) determine if there is sufficient basis for the revocation to go forward; (2) determine if the report is accurate, complete, and contains the correct Title 15 violation sections; and (3) review the report and consider whether or not remedial sanctions/community based treatment is appropriate in lieu of proceeding with referral to the Board of Prison Terms with a recommendation that the parolee be returned to prison.
3

Case 2:94-cv-00671-LKK-GGH Document 1034 Filed 03/09/04 Page 17 of 23
..
'
On or before the 4th business day, the revocation packet is reviewed by the Parole Administrator to determine whether or not there is a sufficient basis for the case to move forward and whether or not Remedial Sanctions/Community Based Treatment is appropriate at this juncture.
On or before the 5th business day, the revocation packet is forwarded to the decentralized revocation unit where the parolee is being held.
On or before the 6th business day, the parolee (including non-Armstrong class members) shall be appointed an attorney and the attorney shall be provided with a copy of the revocation packet, which shall contain a signed copy of the notice of charges, notice of revocation of rights, and a completed BPT 1073.
Attorney shall meet with the Parolee, provide the parolee with a copy of the revocation packet, and shall communicate any offer or offers made by the Board of Prison Terms Deputy CornmissionerlParole Administrator prior to the probable cause hearing.
In the event the parolee can make a sufficient offer of proof of a complete defense to the charges the Board ofPrison Terms Deputy CommissionerlParole Administrator, an expedited Probable Cause Hearing with Documentary and!or live testimony shall be scheduled. As an example, if the parole has uncontroverted documentary evidence that he or she was in Santa Rita jail when this violation allegedly occurred in Los Angeles, parolee shall be allowed to present such evidence at an expedited probable cause hearing between the 6th and 8th business day or at the earliest time possible thereafter if parolee is unable to produce such evidence by the 6th to 8th day.
On or before the 6th to 8th business day, a return to custody assessment (an . offer) is made by the Deputy CommissionerlParole Administrator, and the offer shall be communicated to the parolee's attorney.
On or before the 10th business day, a Probable Cause Hearing shall be held with the Deputy CommissionerlParole Administrator, the parolee, and parolee'S attorney.
4

Case 2:94-cv-00671-LKK-GGH Document 1034 Filed 03/09/04 Page 18 of 23
The Deputy CommissionerlParole Administrator conducting the hearing shall be the same Deputy CommissionerlParole Administrator who made the return to custody assessment (offer) where practicable.
Parolee shall be permitted to present documentary evidence and hearsay testimony by way of offer of proof through his or her attorney in mitigation or as a partial or complete defense to the charges and/or the proposed disposition.
The Deputy CommissionerlParole Administrator shall have the complete range of options to resolve the case. (Continue on parole, credit for time served, release from custody with pending charges, remedial sanctions/community based treatment, reduce the offer.downward, dismiss some or all ofthe charges)
The Deputy Commissioner shall not have the authority to adjust the return to custody assessment upward at or during the probable cause heari.ng.
Parolee shall have the right to waive time as to any ofthese hearing time constraints with or without good cause.
Attorney shall have the right to a continuance upon the showing of good cause in the absence of his or her client's consent in cases of emergency or illness or upon such other showing that the Deputy CommissionerlParole Administrator can make a finding of good cause.
There shall be a written record of this proceeding and the basis for any decisions made therein.
It is not necessary that the Probable Cause H~aring be audio/video recorded.
If at the conclusion of the probable cause hearing, the parolee has rejected the offer, parolee shall provide the Deputy CommissionerlParole Administrator with a list of witnesses he or she would like to call at the revocation hearing. The location of the hearing shall be determined (within 50 miles of the violation), and the Deputy CommissionerlParole Administrator shall make an independent ADA accommodation determination.
5

Case 2:94-cv-00671-LKK-GGH Document 1034 Filed 03/09/04 Page 19 of 23
· -,
REVOCATION HEARING The revocation hearing shall be held at the earliest possible time and in no case later than 35 calendar days after the parole hold has been placed.
6

.· ,
.
,

Case 2:94-cv-00671-LKK-GGH Document 1034 Filed 03/09/04 Page 20 of 23

DECLARATION OF SERVICE BY U.S. MAIL

Case Name: JERRY VALDIVIA, et al. v. GRAY DAVIS, et al.

No.: usnc E.n. #CIV-S-94-0671 LKK GGll P

I declare:

I am employed in the Office of the Attorney General, which is the office of a member of the California State Bar which member's direction this service is made. I am 18 years of age and older and not a party to this matter. I am familiar with the business practice at the Office of the Attorney General for collection and processing of correspondence for mailing with the United States Postal Service. In accordance with that practice, correspondence placed in the internal mail collection system at the Office ofthe Attorney General is deposited with the United States Postal Service that same day in the ordinary course ofbusiness.

On August 21. 2003, I served the attached

DEFENDANTS' REVISED REMEDIAL PLAN

by placing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid, in the internal mail collection system at the Office of the Attorney General at 455 Golden Gate Avenue, San Francisco, California 94102-7004, addressed as follows:

Michael W. Bien, Esq. Rosen, Bien & Asaro 155 Montgomery Street, 8e11 Floor San Francisco, CA 94104
Donald Specter Prison Law Office General Delivery San Quentin, CA 94964
Stephen J. Perrello, Jr. P.O. Box 880738 San Diego, CA 92168

Alexander L. Landon Law Offices of Alex Landon 2442 Fourtb Avenue San Diego, CA 921 01
Karen Kennard Kristen A. Palumbo Bingham McCutchen LLP Three Embarcadero Center San Francisco, CA 94111-4067

I declare under penalty of peIjury under the laws of the State of California the foregoing is true and correct and that this declaration was executed on August 21, 2003, at San Francisco, California.

400061 64.wpd

A. ALBANO Declarant

Signature

Case 2:94-cv-00671-LKK-GGH Document 1034 Filed 03/09/04 Page 21 of 23

DECLARATION OF SERVICE BY U.S. MAIL

Case Name: Jerry Valdivia, et al. v. Gray Davis, et al.

No.:

USDC, Eastern District of California, Case No. CIV-S-94-0671 LKK GGH P

I declare:

I am employed in the Office of the Attorney General, which is the office of a member of the California State Bar which member's direction this service is made. I am 18 years of age and older and not a party to this matter. I am familiar with the business practice at the Office of the Attorney General for collection and processing of correspondence for mailing with the United States Postal Service. In accordance with that practice, correspondence placed in the internal mail collection system at the Office of the Attorney General is deposited with the United States Postal Service that same day in the ordinary course of business.

On November 18, 2003, I served the attached

STIPULATED ORDER FOR PERMANENT INJUNCTIVE RELIEF

by placing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid, in the internal mail collection system at the Office of the Attorney General at 1300 I Street, P.O. Box 944255, Sacramento, California 94244-2550, addressed as follows:

Karen L. Kennard Bingham McCutchen LLP Three Embarcadero Center San Francisco, CA 94111-4067

Alex Landon Law Offices of Alex Landon 2442 Fourth Avenue San Diego, CA 92101

Donald Specter Prison Law Office General Delivery San Quentin, CA 94964

Stephen J. Perrello, Jr. Law Offices of Stephen J. Perello P.O. Box 880738 San Diego, CA 92168

Michael W. Bien Rosen, Bien & Asaro 155 Montgomery Street, 8th Floor San Francisco, CA 94104

I declare under penalty of peIjury under the laws of the State of California the foregoing is true and correct and that this declaration was executed on November 18, 2003, at Sacramento, California.

10025232. wpd

R. Wells Declarant

Signature

Case 2:94-cv-00671-LKK-GGH Document 1034 Filed 03/09/04
United States District Court for the
Eastern District of California March 9, 2004

Page 22 onfd2d3

* * CERTIFICATE OF SERVICE * *

2:94-cv-00671

Valdivias v.
Schwarzenegger

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Eastern District of California.
That on March 9, 2004, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office, or, pursuant to prior authorization by counsel, via facsimile.

Stephen J Perrello Jr

AR/LKK

Law Office of Stephen J Perrello

POBox 880738

San Diego, CA 92168

Alexander L Landon Law Offices of Alex Landon 2442 Fourth Avenue San Diego, CA 92101

Karen Kennard Bingham McCutchen LLP Three Embarcadero Center Suite 1800 San Francisco, CA 94111

Michael W Bien Rosen Bien and Asaro 155 Montgomery Street Eighth Floor San Francisco, CA 94104

DCoansaeld2:9S4p-cevc-0te0r671-LKK-GGH Document 1034 Filed 03/09/04 Page 23 of 23 Prison Law Office General Delivery San Quentin, CA 94964
William Vernon Cashdollar Attorney General's Office for the State of California PO Box 944255 1300 I Street Suite 125 Sacramento, CA 94244-2550
Erika C Aljens Attorney General's Office for the State of California PO Box 944255 1300 I Street Suite 125 Sacramento, CA 94244-2550
Benjamin Laurence Pavone Law Office of Benjamin Pavone 7676 Hazard Center Drive Fifth Floor San Diego, CA 92108-4503
Thomas Stuart Patterson California Attorney General's Office 455 Golden Gate Avenue Suite 11000 San Francisco, CA 94102-7004
John T Philipsborn Law Offices of John T Philipsborn 507 Polk Street Suite 250 San Francisco, CA 94102
Kristen A Palumbo Bingham McCutchen LLP Three Embarcadero Center San Francisco, CA 94111-4067
Peter D Nussbaum Altshuler Berzon Nussbaum Rubin and Demain 177 Post Street Suite 300 San Francisco, CA 94108
Mark F Adams San Diego Criminal Defense Bar Association 962 Fifth Avenue Suite 214 San Diego, CA 92101
Michael J McCabe Criminal Defense Lawyers Club of San Diego 2442 Fourth Avenue
':l Ii ~,r. -~>-c c {I}- ;1...- ( () /

 
 if Case 2:94-cv-00671-LKK-GGH Document 1217 Filed 06/01/05 Page 1 of 8
"".ivoci ~t; 3.l)l~. 5124/Z005

1 BJNGHAM, McCUTCHEN LLP KAREN KENNARD -141925
2 KRISTEN A. PALUMBO· 215857
Three Embarca~ Cen1m 3 San Francisco, California 94111·4067
Telephone: (415) 393-2000 4

FILED
JUN ~1 zoe}
."......~."'u..... Dsl8.l'RDiciSTTOAJl:CCTACiJOFUORRTNfA BY_-;:;;;~=_ _
0ElIU1V CU!/II(

5 PRlSON LAW OFFICB DONALD SPECTER - 83925
6 General DcUvery San Quentin, California 94964
7 Telephone: (415) 457-9144

8 ROSEN, BIEN & ASARO, LLP
MICHAEL W. BIEN 096891
9 ERNEST GALVAN - 196065
JANET TUNG ::-231682
10 155 Montsomety Street, 8th Floor San FranCl8CO, Califonua 94104
11 Telephone (415) 433-6830

12 Attorneys for Plaintiffll

13

14

UNITED STATES DISTRICT COURT

IS

EASTERN DISTRICT OF CALIFORNIA

16

17 JERRY VALDIVIA. et aI.,

18

Plaintiffs,

19 v.

20 ARNOLD SCHWARZENBGGER, et al.,

21

Defendants.

No. Civ. S-94-0671 LKKlGGH
r1P!6R-' O~ST~ATEDORDER
REGARD POLICIES AND PROCEDURES FOR DESIGNATING INFORMATION AS CONFIDENTIAL IN PAROLE REVOCATION PROCEEDINGS

22

23

24

25

26

27

28

Case 2:94-cv-00671-LKK-GGH Document 1217 Filed 06/01/05 Page 2 of 8

I

1. On JIIIlIJlIIj' 13, 2005, Plaintiffs filed a Notice of Mation and Motion OD

2 Shortened Time for Order Enforcing the T = of the Permanellt IDjunction and

3 Memorandum of Points and Authorities, challenging Defendants' failure to develop and

4 implC'lllmlt polioies and procedl.u'es for the designation ofinformation as oonfiderttial that

5 are consistent with due process as required by the Stipulated Order for Permanent lnjunctive

6 Relief, entered by this Court on March 9, 2004.

7

2. On January 24, 2005, Defendants filed the Defendants' Opposition to

8 Plaintiffs' Motion to BDfome Tenns ofPetmanent Injunction and a motion for protective

9 order, and on March 7, 200S, the Defendants' Supplemental and Superseding Opposition to

10 Plaintiff's Motion to Enforce Tenns of Pennanent Injunction, and amended motion for

11 protective order.

12

3. On March 14, 200S, Plaintiffs filed their Reply in SlJPPQrt ofPlaintiffs'

13 Motion for Order Enforcing the Terms ofthe Permanent lnjunction and Plaintiffs'

14 Opposition to Defendants' Amended Motion for Protective Order.

15

4 . ' On March 14,2005, after a telephonic conference with the parties, the Court

16 took the matter off-calendar pending a settlement conference before Magistrate Judge

11 Moulds.

18 i

5. On April 14, 200S, the parties appeared before Magistrate Judge Moulds for a

I

19 ! settlement conference.

I

20

6. The parties hereby stipulate and request that Court shaD ADJUDGE,

21 DECLARE, AND DECREE as follows:

22

23 A. Witness Contaei: IDfprmation

24

7. Dcfendantlllihall not withhold from the parolee's attorney the telephone

25 number or address of any witness unless the witness declares himself or berselfto be

26 tearful. For any witness who declare himself or herselfto be fearful. deft'llldants shall
I 27 provide the parolee's attorney with a telephone number but not an address at which the
28 I witness CIll1 be contacted by the parolee's attorney. If the witness does not provide

Case 2:94-cv-00671-LKK-GGH Document 1217 Filed 06/01/05 Page 3 of 8

1 Defendants with any contact information, Defendants are not obligated under this paragraph

2 to procure contact information for tr8ll!lmittal to the parolee's attorney.

3

8. Ifa witness declares himself or herself to be fearful, the parolee's attorney

4 shall not disclose the witness's telephone number, or cause the number to be disclosed, to

S the parolee. The attorney shall not disclose the fearful witness's telephone number to any

6 individual except those persons involved in the parole revocation process who are to be

7 described in thc protective order. The parolee's attorney shall be bound by a protective

8 order binding him or her to the terms of this paragraph.

9

9. Ifa witness declares himself or herselfto be fearfiJ.I, the parolee's attorney

10 shall not attempt to use the telephone number to discover the witness's home address, place

11 of residence, or other physical location information. The attorney shall not engage in any

12 efforts to make unconscntod in-person contact with the fearful witness. The parolee's

13 attorney shall be bound by a protective order binding him or her to the tenns ofthis

14 paragraph.

15

10. Paragraphs 7 to 9 above pertain to fearful. witnesses only.

16

17 D. Parole Outpatient CHnis CPOe) Information PeslllO.ted Conftdentlal Under
18 CaUrornl. Health and Safety Code § 123115

19

11. The parties did not reach an agreement on their dispute over Parole Outpatient

20 Clinic (pOC) information that is designated confidential under California Health and Safety

21 Code § 123115.

22

12. This issue will be submitted for decision by this Courl The parties waive oral

23 argument unless it is requested by the Court.

24

2S C. Information DeslRnated CoDDdeptial By Another ARency

26

13. When incrjminating or exculpatory infonnation relevant to parole violation

27 charges is contained in Ii document designated confidential by another government agency,

28 Defendants will require a parole agent to review and redact only such information that

Case 2:94-cv-00671-LKK-GGH Document 1217 Filed 06/01/05 Page 4 of 8
Received at: 3::01PM.. 5/24/2005

I woul,d. create a risk of harm to any person and then provide the redacted document
2 contW.ning exaulpatory or incriminating informntion to the parolee's attorney.

3

14. Defendants III:B not required by this Order to provide the parolee or the

4 parolee'li attorney with infonnation designated lIS confidentisl by another agency ifthat

5 infOIIllation concems that parolee's activities as a confidential infurmant and is relevant

6 only to mitigation.

7

8 D. "PuOC ofMedleal Infol11Ultlon from tb! Field File

9

15. Defendacts wl11 instruct parole agents 1I.Ot to purge the field file of medical

10 infOIIll8tion already in the file that is related to parole supervision.

11

16. Defendants will revise the language in the Memorandum titled ''Confidential

12 Section of Field File" that instructs parole age:nts that field files arc not the appropriate place

13 for medical infOI'l'Jlll1ion. The revised language will direct parole agents to keep in the field

14 file that memcal information which is related to the supervision of the parolee. AU other

15 medical information will be forwarded to the appropriate records department for safe

16 keeping in the memcal file.

17,

18 E, Procedure to ChalleDl!e CogOdential Designation.

19

17. Defendants shall make available at the probable cause hearing a procedure for

20 the parolee to challenge the designation by Dcfimdants of a witness as a confidential

21 infotmant. The determination shall be based on the facts contained in the revocation packet
22 only, and whatever other facts the parolee or counsel may offer. For this detenninatioo at

23 the probable cause hearing, tho presence of the field tile and the parole agent who made the

24 confidential designation are not required.

25

18. Defendants shall make available at the final revOClllion hearing a procedure

26 fur all challenges to the withholc1ing of other information and documents as confidential.

27

19. The Calif~mia Parole Advocacy Program (CalPAP) will be compe!lSatod for

28 bringing petitions for habeas corpus and other applicable writs or appeals to challenge

Case 2:94-cv-00671-LKK-GGH Document 1217 Filed 06/01/05 Page 5 of 8
~•••Ived, at, 3.0!PII, M!4/200s

1 decisions made lit the prob!lble cause and revocation hem::ings on the designation of

:2 information and witJleslCS as confidential. In providing !lUCh compellliation. Defendau.ts are

. 3 not required to exceed the total oontract amount with CalPAP for this year. Compensation

4 to CalPAP for IIUQb writs may be revisited by Defendants and CalPAP in the negotiation of

5 futu.re corttracts. Plaintiffs and Defendants have reached no agreement regarding the

6 compensation of writs brought on other issucs,

7
8 F. Ia.[orm.tloa Proytded to Challenge Wltbholdlnll ofIo(ormadoD as ConfidJ!DtJal

9

20. Defendants will till out CDC Form l030-X to give the parolee or the parolee's

10 attorney noticc whenever infunnation is designated confidential for the purpose ofa

11 revocation proceeding. Defendants will use CDC Fonn XXX as an attachment on the

12 Dutside ofthe confidential section of the parolee's field tile.

13

14 G. ReyWy ofthe Jlleld Ft1e

15

21. Defendau.ts will remove the language prohibiting review ofthe field file at the

16 revocation hearing from the Memorandum titled "Confidential Section of Field File" issued

17 to Regional Parole Administrators, Headquarters Parole Administrators, District

18 Admillistre.tors, and Unit Superviaom and replace it with the policy outlined in Paragraph 22

19 ofthis Stipulation.

20

22. Ifthe parolee's attorney intends to review the purole field file, such review

21 should normal1)' occur prior to the revocation hearing. However, upon request by the

22 parolee or parolee's attorney to review the field file lit the llIvooation bearing, the presiding

23. Deputy Commissioner will decide on a case-by-case basis whether to allow such review on

24 a prima facie showing by the parolee or parolee'S attorney ofthe need to review the file,

2S considering factors such lIS the possibility of new information in the file, other information

26 written in the file IIiIlevant to the proceeding, and factors related to the time, burden,

27 inoonvmience, and expense ofvisiting the parole office, such as distance.

28

Case 2:94-cv-00671-LKK-GGH Document 1217 Filed 06/01/05 Page 6 of 8

1 B. Review of Field FUel .I!! AttPl'llm' Detipees

2

23. Defendamll shall include in their list ofpOlSOIlS authorized to conduct a review

:3 ofthe field file at the parole office: the parolee's attorney, CalPAP employees, oertified law

4 studenls, pamlega\s wOIking fur CaIPAP or the parolee's privately retained OOWlllcl, law

5 c1eTks for CalPAP or privately retained oounsel. and legal secretaries for CaIPAP or
6 privately retained counsel Such designees shall present w:ri.t.18n authorization to review tbe

7 field file from the attorney on the attorney's lettemead" or 011 CalPAP's letterhead. The

8 term "employee" as used above should be intctpreted in good faith to achieve the goals of

9 this settlement. lfthis list is considered unduly restrictive, this matter will be revisited

10 within a year.

11 II

12 II

13 II

14 /I

15 1/

16 1/

17 fI

18 1/

19 /I

20 /I

21 1/

2.2 II

23 II

24 1/

2S II

26 fI

27 II

28 /I

Case 2:94-cv-00671-LKK-GGH Document 1217 Filed 06/01/05 Page 7 of 8

lec.tved at; 3;D~PNr 5/24/2005
95/24/2005 15:02 FAX 415 433 7104 05/J4/2008 11:00 FAX 9163248205 I '.

ROSEN BIEN ASARO

tiil009/010 1iI0D2

I A. CrJmlpAI IdMtifisptlon and JpCprmatlon "RAn Sheet""

2

24. The issue n:1atina to disclosure (Ifthe CrlJninal Identifioation and Infllnnation

3 (CI&I) Sheet is deferred pendina resolution of Senate Bill 647 jn thci CalifQmja State

4 Lcgislaturo:. which as of April 28, 2005, baa been passcd 'by the California Slate Senate, and

5 is being considered on an utgency basili by the California State Assembly.

Ii

7

8 IT IS SO STIPULATED.

't , Ma..y 9 Dated·

~ 2005

10

II

12

13

14

·15

)6

BILL LOCKYER, Attorney GcnClilI ofthe SUIte of CaliforrUa. ROBERT R. ANDERSON, Chief AssiStant
FARttAWN'C~EGSeTn.erGalllUNDERr Senior
Assistant Atto~ .Genera. STEl'HEN P. AI.,!I:IISTO, Supervising Depllty Attorney Gcrnnl
By~ol ~ 'I. IticoJ.. De A~ ue.neral Attorneys for Defendants

,17 Dated:
J8

.2005

ROSEN, BIEN & ASARO, LLP

19
20
21
22
23 IT 1S SO ORDERED.

By
Ernest olllvlUl,
Attomeys for Plaintiffs

24 DATED:' 25
26
27

By;
The Hononblc LIIWtcnce .\<., Karlllln Chief Judge Emeritus United States District COUli

28

• Case 2:94-cv-00671-LKK-GGH Document 1217 Filed 06/01/05 Page 8 of 8

1 I. Crlml!al IdentlOCIltion aDd Ie'ormatiog ":Rap Sheet'"

:2

24. The issuo relating to disclosure oftbe Criminalld.e.utification and rnfomurtion

3 (Cl&I) Sheet is defer:red pending resolution of Senate Bill 647 in the California State

4 Legislature, which as ofApril 28, 200S, bas been passed by the California State Senate, and

S is being considered on an urgency basis by the California State Assembly.

6

7

8 IT IS SO STIPULATED. 9 Dated: _ _ _ _-', 2005 10 11 12 13

BILL LOCKYER., Attorney General

ofthe State ofCalifomia

,

ROBERT R. ANDERSO'N, Chief Assistant

Attorney General

FRANCES T. GRUNDER. Senior

Assistant Attorney Gcneral.

STEPHEN P. AQUISTO, Supervising

Deputy Attorney General

14

15

16

17
18

Dated: ~

1. cr

. 200S

19 20
21

By
Bcmjamttl T. Ricc,
Deputy Attomey General Attorneys for Defendants

m:«( ROSEN,

ASARO. LLP

k z By

"-

Emeit Galvan.

Attorneys for Plaintiffs

22

23 IT IS SO ORDERED.

t U/ 24 DATED:

<::::0 -

25

26

27

28

 
 Case 2:94-cv-00671-LKK-GGH Document 1130 Filed 11/09/04 Page 1 of 5

1

filEO

2

NOV - 9 2004

3

4

5

6

7

UNITED STATES DISTRICT COURT

8

EASTERN DISTRICT OF CALIFORNIA

9

10 JERRY VALDIVIA, ALFRED YANCY,

and HOSSIE WELCH, on their own

11 behalf and on behalf of the class

of all persons similarly situated,

12

NO. CIV. S-94-671 LKK/GGH V-

Plaintiffs,

13

v.

14

ARNOLD SCHWARZENEGGER, Governor

15 of the State of California, et al.,

16

Defendants.

17 -JE-F-F-R-E-Y--M--A-LO-N-E-,--------------------/

NO. CIV. S-04-1464 GEB/KJM P

18

Petitioner,

19

v.

20 BOARD OF PRISON TERMS, et al.,

21

Respondent.

22 -F-R-A-N-C-IS--A-.--C-U-L-O-T-T-A-,----------------/

23

Petitioner,

NO. CIV. S-04-1913 DFL/DAD P

24

v.

25 CALIFORNIA BOARD OF PRISON TERMS, et al. ,
26 Respondents.
----------------------------------_/

Case 2:94-cv-00671-LKK-GGH Document 1130 Filed 11/09/04 Page 2 of 5

1 JOHN HAMRE,

2

Petitioner,

NO. CIV. S-04-2118 GEB/DAD P

3

v.

4 WARDEN, CALIFORNIA STATE PRISON at SAN QUENTIN,
5

o R D E R

6

Respondent.

7 ----------------------------------_/

8

The court has reviewed the three petitions for writs of habeas

9 corpus filed by petitioners in the above-captioned cases. All of

10 the habeas petitions raise issues relating to revocation of

11 petitioner's parole, the amount of time between revocation and a

12 hearing before the Board of Prison Terms, and seek relief pursuant

13 to a stipulated Remedial Plan entered into by the parties,

14 including the State of California Board of Prison Terms in Valdivia

15 v. Schwarzenegger, No. Civ. S-94-671 LKK/GGH. The court finds that

16 the above three cases are related within the meaning of Local Rule

17 83-123. Accordingly, the court will order the three petitions for

18 habeas corpus reassigned to the undersigned.

19

Once reassigned, the court further finds the three habeas

20 petitions are appropriate for consolidation with Valdivia under

21 Fed. R. Civ. P. 42(a). The court will order the three habeas

22 petitions consolidated with the Valdivia matter and forwarded to

23 class plaintiffs' counsel.

24

Accordingly, the court hereby ORDERS that:

25

1. Cases Nos. Civ. S-04-1464, Civ. S-04-1913, and Civ. S-04-

26 2118 are hereby found to be RELATED to Valdivia within the meaning

2

Case 2:94-cv-00671-LKK-GGH Document 1130 Filed 11/09/04 Page 3 of 5

1 of Local Rule 83-123;

2

2. The Clerk is directed to REASSIGN the cases to the

3 undersigned;

4

3. The court further finds the cases appropriate candidates

5 and CONSOLIDATES them with Valdivia v. Schwarzenegger;

6

5. The Clerk is directed to copy the habeas petitions in the

7 three cases references above and to FILE and place those petitions

8 in the Valdivia case;

9

6. The Clerk is directed to administratively CLOSE cases nos.

10 Civ. S-04-1464, Civ. S-04-1913, and Civ. S-04-2118;

11

7. The Clerk is further directed to SERVE a copy of the

12 referenced habeas petitions on class counsel in Valdivia; and

13

8. The petitioner are hereby REFERRED to class counsel for

14 appropriate motion to the court, relief under the Remedial Plan,

15 if appropriate, or response to petitioners.

16

IT IS SO ORDERED.

17

DATED: November 8,

18

19
UNITED STATES DISTRICT COURT 20

21

22

23

24

25

26

3

Case 2:94-cv-00671-LKK-GGH Document 1130 Filed 11/09/04
United States District Court for the
Eastern District of California November 9, 2004

Page 4 omf d5k

* * CERTIFICATE OF SERVICE * *

2:94-cv-00671

Valdivias v.
Schwarzenegger

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Eastern District of California.
That on November 9, 2004, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office, or, pursuant to prior authorization by counsel, via facsimile.

Michael W Bien Rosen Bien and Asaro 155 Montgomery Street Eighth Floor San Francisco, CA 94104
Stephen J Perrello Jr Law Office of Stephen J Perrello POBox 880738 San Diego, CA 92168
Alexander L Landon Law Offices of Alex Landon 2442 Fourth Avenue San Diego, CA 92101
Karen Kennard Bingham McCutchen LLP Three Embarcadero Center Suite 1800 San Francisco, CA 94111 (W/COPIES OF HABEAS PETITIONS)
Donald Specter Prison Law Office General Delivery

AR/LKK

San Quentin, CA 94964 Case 2:94-cv-00671-LKK-GGH Document 1130 Filed 11/09/04 Page 5 of 5
Andrea M Miller Nageley and Meredith Incorporated 8001 Folsom Boulevard Suite 100 Sacramento, CA 95826-6270

Benjamin Terrence Rice Attorney General's Office for the State of California PO Box 944255 1300 I Street Suite 125 Sacramento, CA 94244-2550

Erika C Aljens Attorney General's Office for the State of California PO Box 944255 1300 I Street Suite 125 Sacramento, CA 94244-2550

Benjamin Laurence Pavone Law Office of Benjamin Pavone 7676 Hazard Center Drive Fifth Floor San Diego, CA 92108-4503

John T Philipsborn Law Offices of John T Philipsborn 507 Polk Street Suite 250 San Francisco, CA 94102

Kristen A Palumbo Bingham McCutchen LLP Three Embarcadero Center San Francisco, CA 94111-4067

Peter D Nussbaum Altshuler Berzon Nussbaum Rubin and Demain 177 Post Street Suite 300 San Francisco, CA 94108

Mark F Adams San Diego Criminal Defense Bar Association 962 Fifth Avenue Suite 214
San Diego, CA 92101

Michael J McCabe Criminal Defense Lawyers Club of San Diego 2442 Fourth Avenue San Diego, CA 92101

4:Jack L. VJagner, Clerk
b)L~frlfe~}C1~~~j

 
 Case 2:94-cv-00671-LKK-GGH Document 1303 Filed 09/15/06 Page 1 of 3

1

2

3

4

5

6

7

8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10 JERRY VALDIVIA, ALFRED YANCY and HOSSIE WELCH, on their own
11 behalf and on behalf of the class of all persons similarly situated,
12 Plaintiffs,
13 v.
14 ARNOLD SCHWARZENEGGER, Governor of
15 the State of California, et al.,

CIV. NO. S-94-671 LKK/GGH

16

Defendants.

/

17

L.H., A.Z., D.K.,and D.R. on behalf

18 of themselves and all other similarly

situated juvenile parolees in

19 California,

20

Plaintiffs,

21

v.

CIV. NO. S-06-2042 GEB/DAD

22 ARNOLD SCHWARZENEGGER, Governor of the State of California, et al.,
23

RELATED CASE ORDER

24
25 ////
26

Defendants. /

1

Case 2:94-cv-00671-LKK-GGH Document 1303 Filed 09/15/06 Page 2 of 3

1

Examination of the above-entitled actions reveals that

2 the two (2) actions are related within the meaning of Local Rule

3 83-123(a) (E.D. Cal. 1997). The actions involve some of the same

4 parties, and are based on the same or similar claims, some of the

5 same events, similar questions of fact and law.

6

Accordingly, the assignment of the matters to the same judge

7 and magistrate judge is likely to effect a substantial savings of

8 judicial effort and is also likely to be convenient for the

9 parties.

10

The parties should be aware that relating the cases under

11 Local Rule 83-123 merely has the result that the two (2) actions

12 are assigned to the same judge and magistrate judge; no

13 consolidation of the actions is effected. Under the regular

14 practice of this court, related cases are generally assigned to the

15 judge and magistrate judge to whom the first filed action was

16 assigned.

17

IT IS THEREFORE ORDERED that the action denominated CIV. NO.

18 S-06-2042 GEB/DAD be, and the same hereby is, reassigned to Judge

19 Lawrence K. Karlton and Magistrate Gregory G. Hollows for all

20 further proceedings, and any dates currently set in this reassigned

21 case only are hereby VACATED. Henceforth, the caption on documents

22 filed in the reassigned case shall be shown as CIV. NO. S-06-2042

23 LKK/GGH.

24 ////

25 ////

26 ////

2

Case 2:94-cv-00671-LKK-GGH Document 1303 Filed 09/15/06 Page 3 of 3

1

IT IS FURTHER ORDERED that the Clerk of the Court make

2 appropriate adjustment in the assignment of civil cases to

3 compensate for this reassignment.

4

DATED: September 14, 2006.

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

3

 
 Case 2:94-cv-00671-LKK-GGH Document 1311 Filed 11/14/2006 Page 1 of 2

1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10

11

JERRY VALDIVIA, ALFRED YANCY, and ) Case No.: 2:94-CV-0671 LKK GGH P

12 HOSSIE WELCH, on their own behalf and on )

13 behalf of the class of all persons similarly situated,

) ) ) ORDER

14

Plaintiffs,

)

)

15

vs.

)

)

16 ARNOLD SCHWARZENEGGER, Governor )

of the State of California, et al.,

)

17

)

18

Defendants.

) )

19

20

Pursuant to the terms of the Stipulation and Amended Order Re: Special Master Order of

21 Reference in this action, the Special Master is required to file with the Court periodic reports on

22 the status of Defendants’ compliance with the Permanent Injunction. On September 14, 2006, the

23 Special Master filed his First Report on the Status of Conditions of the Remedial Order. The

24 report contains recommendations for specific action by Defendants. On October 2, 2006,

25 Plaintiffs filed their Reply/Response to First Report of Special Master. Defendants did not file a

26 reply to the Special Master’s report and neither party objected to the recommendations. Good

27 cause appearing, the Special Master’s recommendations will be the order of the court.

28

In accordance with the above, IT IS HEREBY ORDERED that:

- 1 -
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Case 2:94-cv-00671-LKK-GGH Document 1311 Filed 11/14/2006 Page 2 of 2

1

1. Defendants shall provide additional resources to make information system application

2 changes for the purposes of data collection, analysis, aggregation, and management reports, and

3 other modifications as needed by the Special Master and the Court, with input from Plaintiffs.

4 The effort should be coordinated with the information system changes underway pursuant to the

5 Armstrong court’s order. To the extent that Defendants determine that certain of these functions

6 can best be accomplished by modifying the DAPO information system, sufficient resources shall

7 also be made available for that purpose.

8

Planning for these changes shall be initiated within 60 days of this order. Defendants

9 shall provide to the Special Master and Plaintiffs periodic reports on the progress of these

10 changes; the first of these shall be due six months after the date of this order, and every six

11 months thereafter until the Special Master determines the improvements are complete. The

12 system changes shall be completed within one year and six months of this order.

13

2. Defendants shall institute and maintain the infrastructure needed for self-monitoring,

14 staffed by subject matter experts working in a department outside of the departments being

15 reviewed. The infrastructure shall include staffing and resources sufficient to conduct site visits,

16 assessments, and quality improvement efforts at the Decentralized Revocation Units, contracted

17 jail facilities, contracted legal services for parolees, CDCR and non-CDCR facilities providing

18 remedial sanctions, and other facilities and services falling under the auspices of the Valdivia

19 remedies.

20 DATED: November 13, 2006

21

22

23

24

25

26

27

28

- 2 -
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 Case 2:94-cv-00671-LKK-GGH Document 1393 Filed 01/15/2008 Page 1 of 3

1

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

8

EASTERN DISTRICT OF CALIFORNIA

9

10 JERRY VALDIVIA, ALFRED YANCY, and HOSSIE WELCH, on their own
11 behalf and on behalf of the class of all persons similarly situated,
12 Plaintiffs,
13 v.
14 ARNOLD SCHWARZENEGGER, Governor of
15 the State of California, et al.,

NO. CIV. S-94-671 LKK/GGH O R D E R

16

Defendants.

/

17

18

Based on the factual observations and recommendations of the

19 Special Master described in his Third Report of the Special Master

20 on the Status of the Condition of the Remedial Order, the court

21 ORDERS that defendants must undertake and sustain work toward the

22 earliest practical solution to providing due process to parolees

23 who appear, either in the judgment of their attorneys or

24 defendants’ staff, too mentally ill to participate in revocation

25 proceedings. These efforts must be undertaken in consultation with

26 plaintiffs’ counsel and the Special Master. Defendants are further

1

Case 2:94-cv-00671-LKK-GGH Document 1393 Filed 01/15/2008 Page 2 of 3

1 ORDERED as follows:

2

1. Defendants must provide progress updates to the Special

3

Master and plaintiffs’ counsel every three weeks,

4

beginning three weeks from the date of this order, until

5

the Special Master determines they are no longer

6

necessary.

7

2. By March 1, 2008, the defendants must provide to the

8

Special Master and plaintiffs’ counsel a status report

9

on the development of policies and procedures concerning

10

this population. The policies and procedures must

11

include methods to expedite treatment and to provide due

12

process and full rights under the Permanent Injunction.

13

3. By March 15, 2008, defendants must provide to the

14

Special Master and plaintiffs’ counsel the standards

15

defendants intend to use to determine whether a parolee

16

is unable to participate meaningfully in revocation

17

proceedings, by virtue of mental illness, and whether

18

that ability has been regained. The standards should

19

identify the types of staff or other service providers

20

responsible for applying the standards.

21

4. By April 3, 2008, the defendants must provide to the

22

Special Master and plaintiffs’ counsel a detailed plan

23

for implementing these policies and procedures and for

24

training all affected CDCR staff and CalPAP attorneys.

25

The plan must specify associated funding and timelines

26

regarding the implementation process, and any new

2

Case 2:94-cv-00671-LKK-GGH Document 1393 Filed 01/15/2008 Page 3 of 3

1

resources required.

2

5. By June 15, 2008, these policies and procedures must be

3

implemented.

4

The Special Master may, in his discretion, grant an extension

5 of time on any of these deadlines upon either party’s request and

6 a showing of good cause.

7

IT IS SO ORDERED.

8

DATED: January 14, 2008.

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

3

 
 1

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

8

EASTERN DISTRICT OF CALIFORNIA

9

10 JERRY VALDIVIA, ALFRED YANCY, and HOSSIE WELCH, on their own
11 behalf and on behalf of the class of all persons similarly situated,
12 Plaintiffs,
13 v.
14 ARNOLD SCHWARZENEGGER, Governor of
15 the State of California, et al.,

NO. CIV. S-94-671 LKK/GGH O R D E R

16

Defendants.

/

17

18

On February 25, 2008, the Special Master filed his report and

19 recommendations regarding the use of hearsay evidence in parole

20 revocation proceedings. See Permanent Injunction, at 6. The

21 defendants have filed objections to the Special Master’s report;

22 the plaintiffs encourage the court to adopt it, with modification.

23 The court declines both parties’ requests and adopts the Special

24 Master’s report and recommendations.

25

Despite defendants’ objections, the court agrees with the

26 Special Master’s interpretation of United States v. Comito, 177

1

1 F.3d 1166 (9th Cir. 1999), United States v. Hall, 419 F.3d 980 (9th

2 Cir. 2005) and related hearsay cases in this Circuit, and their

3 application to the defendants’ parole revocation proceedings. His

4 findings of fact are supported by the record. The Special Master’s

5 recommendations appear to the court well-calculated to ensure the

6 due process protections as expressed by the Supreme Court and the

7 Ninth Circuit are respected. All of defendants’ objections are

8 overruled.

9

Plaintiffs’ principally request that the Special Master’s

10 recommendations be amended to include concrete deadlines by which

11 the defendants must accomplish certain remedial measures.1 The

12 court declines to do so and defers to the Special Master, in his

13 conscientious attention to and intimate knowledge of the case, to

14 ensure that the remedial measures ordered are completed

15 expeditiously.

16

Accordingly, the court ORDERS:

17

1. The court ADOPTS the Special Master’s Report and

18

Recommendations Regarding Motion to Enforce Paragraph 24

19

of the Valdivia Permanent Injunction (Docket No. 1398);

20

2. The parties SHALL undertake the acts recommended by the

21

Special Master at pp. 26-29 of the Report. The court

22

defers to the Special Master to ensure these acts are

23

24

1 The plaintiffs also request the court modify the Report to

state that the denial of plaintiffs’ motions are made without 25 prejudice. It appears that this is apparent by the language

employed by the Special Master and that such modification is 26 unnecessary.

2

1

timely accomplished. Should he believe necessary, the

2

Special Master may move the court to require specific

3

deadlines.

4

IT IS SO ORDERED.

5

DATED: March 25, 2008.

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

3

 
 Case 2:94-cv-00671-LKK-GGH Document 1398 Filed 02/25/08 Page 1 of 293

1

2

FER 2' 70C8

CLaRK u,s. DISTRICT COURT

3

EASTERN 'OISfRICT-OF CALIFORNIA

~------~iN~T9ndnmft~--------
4

5

UNITED STATES DISTRICT COURT

6

EASTERN DISTRICT OF CALIFORNIA

7

8

JERRY VALDIVIA, ALFRED YANCY, and ) Case No.: 2:94-CV-0671 LKK GGH P 9 HOSSIE WELCH, on their own beha1fand on)

10 behalf of the class of all persons similarly situated,

11

Plaintiffs,

~

)

REPORT AND RECOMMENDATION REGARDINU MOTION TO ENFORCE

) PARAGRAPH 24 OF THE VALDIVIA

12 VS.

1 PERMANENT INJUNCTION

13 ARNOLD SCHWARZENEGGER, Governor )

of the State of California, et al.,

~

14

15

Defendants.

~

16

17

INTRODUCTION

18

This Court entered a Stipulated Order for Permanent Injunctive Relief in this action

19 ("Permanent Injunction") on March 9,2004. Among its provisions is the following

20 requirement:

21

The use of hearsay evidence shall be limited by the parolees'

confrontation rights in the manner set forth under controlling law as

22

currently stated in United States v. Comito, 177 F.3d 1166 (9th Cir.

23

1999). The Policies and Procedures shall include guidelines and

standards derived from such law.

24
See Ex. A at 6 (Permanent Injunction).
25
While Defendants distributed policies and procedures in 2004, the parties have not
26
agreed as to their adequacy. Further dispute arose when, in 2006, Defendants wished to
27
amend practices based on recent case law.
28

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1

Case 2:94-cv-00671-LKK-GGH Document 1398 Filed 02/25/08 Page 2 of 293

1

The parties met and conferred concerning this Permanent Injunction requirement in

2 2007. In August 2007, the parties determined that they wished to seek clarification of what

3 the law requires in light of recent developments in case law. They chose to pursue a fact-

4 finding hearing held by the Special Master with Report and Recommendation to the Court,

5 and de novo review by the Court, as provided for in Paragraph IV.E of the Stipulation and

6 Amended Order Re: Special Master Order of Reference.

7

On December 14,2007, this matter came on for hearing. Documents were produced

8 in response to two requests for production. Having reviewed the pleadings, arguments of

9 counsel, and documents, the Special Master submits the following Report and

10 Recommendation for the Court's consideration.

11

FINDINGS OF FACT

12

1. Policies and procedures concerning the application of Comito and related case law

13 were distributed to Defendants' staff in July 2004. Ex. B at 68:16 - 69:17 (Reporter's

14 Transcript of 12/14/07 Hearing).

15

2. As illustrated in the examples below, these policies and procedures contain

16 inaccurate statements concerning parolees' confrontation rights under the controlling law

17 stated in Comito, 177 F.3d 1166. Ex. C (CDCR Resource Documents 1,2,3 ("RD")). For

18 example, the "Hearsay" section of Resource Document 1 states that the Comito balancing

19 test:

20

balances the parolee's right to confrontation against the use of the hearsay

evidence.
21

22 Ex. C, RDI p. 8. As will be discussed infra, the test balances "the releasee's interest in his

23 constitutionally guaranteed right to confrontation against the Government's good cause for

24 denying it." Comito, 177 F.3d at 1170. The same document describes a Deputy

25 Commissioner's task as:

26

determining that the parolee's right to confront is outweighed by the

trustworthiness of the evidence.

27

28

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24 OF THE VALDIVIA PERMANENT INJUNCTION
2

Case 2:94-cv-00671-LKK-GGH Document 1398 Filed 02/25/08 Page 3 of 293

1 Ex. C, RDI p. 8. While trustworthiness is a factor that can lessen the parolee's interest,

2 under Comito, trustworthiness alone cannot completely outweigh that interest. See infra at 9.

3 In Resource Document 2, a summary of the right to confront and cross-examine adverse

4 witnesses indicates:

5

the [Deputy Commissioner] can deny the confrontation of an adverse

6

witness if it is shown that the witness is unavailable for good cause, or

determined to be either fearful or confidentiaL

7

Ex. C, RD2 p. 3. This omits any mention of the required assessment of the parolee's interest
8

in confrontation and weighing it against the described good cause. A Resource Document 3
9

summary of the Comito balancing test reads:
10

[the test] balances the parolee's right to confrontation against the need for

11

the evidence to the disposition of the case and the trustworthiness of the

12

information.

13 Ex. C, RD3 p. 2. This is the converse ofthe preceding example; it describes the assessment

14 of the confrontation interest, but omits the good cause assessment prong of the test.

15

In these policies and procedures, there also are repeated references to all relevant

16 evidence, or all hearsay evidence, being admissible. See, e.g., Ex. C, RDI pp. 2, 3, 4, 5, 12.

17 While some references are accurately quoting statutes or regulations, the repeated references

18 send a message contrary to the controlling law that some relevant or hearsay evidence should

19 be excluded after conducting a balancing test.

20

3. Defendants assert that the distributed policies and procedures include guidelines

21 and standards that comply with the mandate set forth in Paragraph 24 of the Permanent

22 Injunction. Ex. B at 68:16 69:17. A review of those policies and procedures reveals that

23 any guidelines and standards to be found therein are insufficiently detailed to provide the

24 guidance contemplated by this Permanent Injunction requirement. Ex. C.

25

4. After the Ninth Circuit issued its opinion in United States v. Hall, 419 F.3d 980

26 (2005), Defendants informed Plaintiffs oftheir position that hearsay evidence that falls

27 within a recognized hearsay exception may be admitted without applying the Comito

28 balancing test. Ex. B at 6:25 8:20; Ex. A-Sealed at 1:7-12 (Reply Declaration of Emest

REPORT AND RECOMMENDATION REGARDING MOTION TO ENFORCE PARAGRAPH
24 OF THE VALDIVIA PERMANENT INJUNCTION 3

Case 2:94-cv-00671-LKK-GGH Document 1398 Filed 02/25/08 Page 4 of 293

1 Galvan in Support of Plaintiffs' Motion to Enforce Paragraph 24 of the Valdivia Permanent 2 Injunction).

3

5. The record indicates that Defendants have discussed changes to their policy

4 concerning admission ofhearsay exceptions but have not yet instructed their staff to admit

5 proffered evidence under a hearsay exception without applying the Comito balancing test.

6 Ex. 2 to Ex. F (Reply Declaration of Loren G. Stewart in Support of Plaintiffs' Motion to

7 Enforce Paragraph 24 of the Valdivia Permanent Injunction); Ex. B at 8:24 9:5. In training

8 in March and April 2007, Deputy Commissioners were told that Defendants were exploring

9 the possibility of changing this practice, but to continue to apply the Comito balancing test at 10 that time. Ex. 4 to Ex. A-Sealed at 46 (CDCR Valdivia Compliance Report 9/26/07). In a 11 November 2006 Deputy Commissioner academy session, instructors mentioned hearsay 12 exceptions but did not make any explicit link to any effect they may have on the Comito

13 balancing test. Ex. D at 2:1-3 (Declaration of Loren G. Stewart in Support of Plaintiffs'

14 Motion to Enforce Paragraph 24 of the Valdivia Permanent Injunction) .

15

6. Only a small majority of experienced Deputy Commissioners are lawyers, as is

16 only one of the recent hires. Ex. B at 81: 1-21. Taken together, this means that a minority of

17 the Deputy Commissioners currently serving are lawyers. While a background in law is not a

18 requirement (see Morrissey v. Brewer, 408 U.S. 471,489 (1972)), there is no evidence in the

19 record that the non-attorneys have any familiarity with evidentiary law apart from the

20 training Defendants provide.

21

7. Training provided to Deputy Commissioners consists of three to three and one-half

22 hours of instruction in an academy shortly after their hire. Ex. E (Board of Parole Hearings

23 Deputy Commissioner Training 12/20107); Ex. D at 1:22-25. Continuing education was

24 offered in and March and April 2007 for one and one-quarter hours. Ex. 5 to Ex. A-Sealed

25 (Board ofParole Hearings Deputy Commissioner Workshop 3/27/07).

26

8. When Plaintiffs' counsel attended training sessions, they formed the opinion that

27 the trainings "provided confusing and inconsistent messages regarding the standards and

28 procedures to be followed under the controlling Comito case." Ex. D at 1:6-10, 2:4-13.

REPORT AND RECOMMENDATION REGARDING MOTION TO ENFORCE PARAGRAPH 24 OF THE VALDIVIA PERMANENT INJUNCTION
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Case 2:94-cv-00671-LKK-GGH Document 1398 Filed 02/25/08 Page 5 of 293

1

9. As described in the following paragraphs, all parties are aware that, in practice,

2 there have been deficiencies in the application of Comito and related case law to evidentiary 3 questions. Defendants have observed instances of Deputy Commissioners failing to apply

4 the required balancing test, and other instances where the balancing conducted was

5 inconsistent with the Comito standard. Ex. B at 71 :21 - 72: 16. One of Defendants' staff

6 asserted that it was a common mistake for Deputy Commissioners to admit evidence central

7 to the ultimate finding because it was central to the fmding, when such evidence should

8 weigh against admission because it heightens the parolee's confrontation interest. Ex. D at

9 1:25-28. A Deputy Commissioner confirmed that was his approach during an interview with

10 Plaintiffs' counsel. Ex. B-Sealed at 1:23-24 (Reply Declaration of Anne Mania in Support of

11 Plaintiffs' Motion to Enforce Paragraph 24 of the Valdivia Permanent Injunction).

12

10. Plaintiffs' counsel have observed Deputy Commissioners failing to apply the

13 required balancing test, and other instances where, in Plaintiffs' counsel's assessment, the

14 balancing conducted did not follow the Comito standard. Ex. 1 to Ex. B at 5-7 (Notice of

15 Motion and Motion to Enforce Paragraph 24 of the Valdivia Permanent Injunction); Ex. B-

16 Sealed. Plaintiffs' counsel have also observed confusion about the standard expressed by

17 Deputy Commissioners and Associate Chief Deputy Commissioners as recently as March

18 2007. Ex. D at 2:4-13.

19

11. Documents concerning revocation hearings, submitted as evidence by Plaintiffs,

20 contain two examples of a Deputy Commissioner incorrectly applying the relevant balancing

21 test. One discussion reads:

22

P's interest in confrontation weighed against the importance of witnesses'

testimony to the final finding of fact is lesser than the reliability ofthe

23

hearsay evidence and the corroboration of it.

24
Ex. 3 to Ex. C-Sealed at 5 (Reply Declaration of Kristen Palumbo in Support of Plaintiffs'
25
Motion to Enforce Paragraph 24 of the Valdivia Permanent Injunction). No reason was given
26
for the declarants' absence. Id. at 1. The established test is to balance the parolee's
27
confrontation interest against the State's good cause for denying it; in the absence of any
28
discussion of good cause for declarants' absence, the correct balancing test could not have

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Case 2:94-cv-00671-LKK-GGH Document 1398 Filed 02/25/08 Page 6 of 293

1 been carried out. Additionally, importance of the evidence to the ultimate finding is a factor 2 that heightens the parolee's confrontation interest, not a factor to be weighed against it. See

3 infra at 9.

4

In another revocation hearing, the Deputy Commissioner acknowledged multiple

5 prongs to the test but did not employ them. Ex. E-Sealed at 3:17, 4:21-24; Ex. F-Sealed; Ex.

6 H-Sealed at 34:4-37:3 (Transcript of Revocation Hearing for Parolee 2).1 She considered the

7 reliability of the hearsay based on its status as, or similarity to, documents that would fall

8 under a business records exception, as well as reliability established by corroborating

9 evidence. Ex. H-Sealed at 34:4-37:3. The Deputy Commissioner did not discuss the strength

10 of the parolee's confrontation interest, the importance to the ultimate finding, or the good

11 cause for not producing the deciarants, nor the relative weight among them. Id.

12

12. Transcripts of audiotaped revocation hearings, submitted as evidence by

13 Plaintiffs, contain an example of a Deputy Commissioner dismissing a confrontation rights

14 objection without applying the relevant balancing test. Ex. 1 to Ex D-Sealed at 8:1-12 (Reply

15 Declaration of Shirley Huey in Support of Plaintiffs, Motion to Enforce Paragraph 24 of the

16 Valdivia Permanent Injunction).

17

13. The administrator of the panel of attorneys representing parolees in hearings has

18 disagreed with some applications of the Comito standards. Ex. 1 to Ex. A-Sealed at 34 (First

19 Report of the Special Master on the Status of Conditions of the Remedial Order).

20

14. Interviewing some Division of Adult Parole Operations staff gave the Special

21 Master the impression that they hold many uncertainties and misinformation regarding

22 hearsay information and Comito requirements. Ex. 1 to Ex. A-Sealed at 34. Those staff

23 perceived Deputy Commissioner decisions in applying the Comito standard to be inconsistent

24 and sometimes inappropriate. Id. As recently as August 2007, many Division of Adult

25 Parole Operations staff reported to Defendants' self-monitoring teams that they were

26

27

28 1 To the extent that any portions of Ex. G-Sealed have not been authenticated, the Special Master takes judicial notice of the transcript under Federal Rule of Evidence 201. REPORT AND RECOMMENDATION REGARDING MOTION TO ENFORCE PARAGRAPH 24 OF THE VALDIVIA PERMANENT INJUNCTION
6

Case 2:94-cv-00671-LKK-GGH Document 1398 Filed 02/25/08 Page 7 of 293

1 confused about providing evidence under the standards. Ex. 4 to Ex. A-Sealed at 47; Ex. 3 to

2 Ex. A-Sealed at 9-11 (CDCR Valdivia Monitoring Report Santa Rita County Jail).

3

15. The above-described confusion and inconsistency was observed and expressed

4 three years into implementation of policies and procedures arising from Valdivia Permanent

5 Injunction Paragraph 24 obligations. (Policies distributed in July 2004 - Ex. B at 69: 15-17;

6 observations March 2007 and August 2007, supra.)

7

16. The scope of the problems detailed above is unknown at this time. Defendants

8 have not tested Deputy Commissioners' understanding subsequent to training. Ex. B at 69:22

9 -70:12. During self-monitoring visits and staff supervision, Defendants observe some

10 Deputy Commissioners in hearings, as do Plaintiffs in their monitoring, but neither party has

11 undertaken any systematic assessment of Deputy Commissioners' skill and accuracy in

12 applying the legal standards concerning confrontation rights. Ex. B at 70: 13 - 71 :15.

13

17. A case presented as evidence by Plaintiffs includes a Deputy Commissioner

14
sustaining a confrontation rights objection and postponing the revocation hearing in response.
15
Ex. E-Sealed at 6: 15-19, 7:6-10 (Declaration of Shirley Huey in Support of Plaintiffs' Notice
16
17 of Motion and Motion to Enforce Paragraph 24 of the Valdivia Permanent Injunction); Ex. F-

18 Sealed (plaintiffs' Notice of Lodging ofRevocation Hearing Transcripts); Ex. G-Sealed at

19 16:21-25,23:25-24:20 (Transcript of Revocation Hearing for Parolee 3).2 The parolee
20
admitted a charge and did not admit two others. Ex. G-Sealed at 10:9-11 :2.
21
His attorney argued the need to cross-examine several listed witnesses, including the
22
23 alleged victim, percipient witnesses, and involved law enforcement; those witnesses were

24 subpoenaed and did not appear. Ex. G-Sealed at 7:2-8:13, 16:21-25,21 :24-22:22. Concerning

25 some of the witnesses, there was some discussion concerning contact efforts, nonappearance
26
reasons, and assistance, but information was limited. Ex. G-Sealed at 7:9-8:13, 14:4-15:3,
27

28 2 To the extent that any portions of Ex. G-Sealed have not been authenticated, the Special Master takes judicial notice of the transcript under Federal Rule of Evidence 201.
REPORT AND RECOMMENDATION REGARDING MOTION TO ENFORCE PARAGRAPH 24 OF THE VALDIVIA PERMANENT INJUNCTION
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Case 2:94-cv-00671-LKK-GGH Document 1398 Filed 02/25/08 Page 8 of 293

1 16:10-17,22:23-23:24. The reasons for the arresting or investigating officers' failure to
2
appear were not discussed. Id.
3
The Deputy Commissioner did not apply a Comito balancing test to determine
4
5 whether to admit the proffered hearsay derived from the absent witnesses. Ex. G-Sealed at

6 16:21-25,23:25-24:20. He found good cause on the admitted charge and postponed the

7 hearing as to the other two charges while encouraging the parties to secure the witnesses'
8
appearance. Ex. G-Sealed at 23:25-24:20.
9
18. The scope is unknown for the practice of Deputy Commissioners postponing
10
hearings in order for the State to present more competent evidence after a confrontation
11
rights objection. Neither party has undertaken a systematic r~view. Ex. B at 37:7 - 40:21.
12
19. The mechanism available for reviewing a disputed evidentiary decision is a writ
13
of habeas corpus to the Superior Court. Ex. B at 75:15-21. Regulations provide for a process
14
for the Board of Parole Hearings to review decisions of Deputy Commissioners. The record
15
is not clear as to whether this process is available to parolees. Ex. B at 77:8 -79:2, 82:7-12.
16

17
18
I.
19
20

CONCLUSIONS OF LAW Parolees' Right to Confrontation 20. The Fifth and Fourteenth Amendments serve as the source of the rights of a

21 parolee in a revocation proceeding; he is not entitled to the full protections of the Sixth

22 Amendment. Morrissey v. Brewer, 408 V.SA71, 482 (1972); United States v. Hall, 419 F.3d

23 980, 985-86 (9th Cir 2005). Among the more limited rights due process affords, however, is
24
the right "to confront and cross-examine adverse witnesses (unless the hearing officer
25
specifically fmds good cause for not allowing confrontation)." Morrissey, 408 V.S. at 489.
26

27

21. For purposes of a due process analysis, courts have treated parole revocation,

28 probation revocation, and supervised release proceedings as essentially equivalent. United

REPORT AND RECOMMENDATION REGARDING MOTION TO ENFORCE PARAGRAPH
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8

Case 2:94-cv-00671-LKK-GGH Document 1398 Filed 02/25/08 Page 9 of 293

1 States v. Martin, 984 F.2d 308, 310 (9th Cir. 1993) (citing Gagnon v. Scarpelli, 411 U.S. 778

2
(1973) and Fed. R. Crim. P. 32.1). The authority cited infra will draw on each of the types of
3
proceedings.
4

5

22. In the Ninth Circuit, the prevailing method of determining whether to admit

6 hearsay without the ability to confront the adverse witness is to apply a balancing test laid out

7 in United States v. Comito, 177 F.3d 1166 (9th Cir. 1999). The test requires the
8
decisionmaker to detennine the degree of the parolee's interest in confrontation and weigh
9
that against the government's good cause for not producing the adverse witness. ld. at 1170.
10

11 This is a very individualized detennination based on the facts and circumstances of each

12 case. ld. at 1172; United States v. Martin, 984 F.2d 308, 310-11 (9th Cir. 1993).

13

23. Factors that heighten the parolee's interest include the importance of the proffered

14
evidence to the ultimate finding and low reliability of the evidence. Martin, 984 F.2d at 311.
15

Common factors going to the government's good cause include the efforts taken to produce
16

17 the witness, the difficulty and expense of doing so, and concerns for the safety of a

18 confidential informant. Hall, 419 F.3d at 988; Gagnon, 411 U.S. at 783 n.5; Morrissey, 408
19
U.S. at 487. Other factors may be taken into account, such as the severity of the penalty
20
potentially to be imposed. Martin, 984 F.2d at 312.
21
22 II. Hearsay Exceptions

23

24. The parties disagree about the treatment of hearsay exceptions in revocation

24 proceedings. When proffered evidence falls within a hearsay exception, Plaintiffs take the
25
position that decisionmakers should take this into account by adjusting the weight given in
26
the balancing test in accord with the reliability traditionally associated with such evidence.
27
28 Ex. 1 to Ex. Bat 13:23 14:4. Defendants take the position that proffered evidence falling

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Case 2:94-cv-00671-LKK-GGH Document 1398 Filed 02/25/08 Page 10 of 293

1 within a hearsay exception can be admitted without more. Ex. 2 to Ex. B at 2:5-8.
2
Defendants argue that (1) to do otherwise is to afford more rights to parolees facing
3
revocation than to accused criminals facing prosecution and (2) the indicia of reliability
4
5 inherent in such evidence establishes good cause for denying confrontation sufficient to

6 render balancing unnecessary. Id. at 9:9-11,2:8-12.

7

Authorityfor use ofhearsay exceptions in revocation proceedings

8
25. Neither the Supreme Court nor the Ninth Circuit has ruled directly on whether
9
hearsay exceptions obviate the need for a balancing test in parole revocation proceedings. As
10

11 discussed below, while some Ninth Circuit authorities suggest the court may favor admitting

12 proffered evidence on the basis that it falls within a hearsay exception, the question has not

13 been posed directly to the court; rather, the inference arises from dicta or from the types of

14
evidence it allowed.
15

16

Hall gives perhaps the strongest indications ofthe Ninth Circuit's inclination

17 concerning hearsay exceptions. In Hall, the court considered whether due process was

18 satisfied when unsworn verbal allegations regarding two separate charges were admitted in a
19
supervised release revocation proceeding. Hall, 419 F.3d at 986-89. The court began by
20
employing the Comito balancing test in analyzing the first charge. Id at 986. It determined
21
22 that the defendant's interest in confronting the unsworn statements as to that charge was

23 fairly low because there was sufficient nonhearsay evidence to sustain the charge and the

24 hearsay therefore added little to the ultimate finding. Id.

25
The court then went on to add a paragraph that is not anchored either in what
26
precedes it or follows it. The court wrote:
27

28

In addition, several pieces of evidence supporting the domestic violence

allegation are admissible under hearsay exceptions. Although the Federal

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Case 2:94-cv-00671-LKK-GGH Document 1398 Filed 02/25/08 Page 11 of 293

1

Rules of Evidence do not strictly apply to revocation hearings [citations

2

omitted], long-standing exceptions to the hearsay rule that meet the more

demanding requirements for criminal prosecutions should satisfy the lesser

3

standard of due process accorded the respondent in a revocation

proceeding.
4

5 [d. at 987 (emphasis added). The court then concluded its balancing without expressly

6 employing the evidence subject to hearsay exceptions. [d. It did not discuss how such

7 evidence would or should be used within a balancing test. It did not rule that evidence that
8
falls within a hearsay exception obviates the need for Comito balancing. It made this
9
assertion and then continued and completed the balancing test. The court did not discuss
10
11 hearsay exceptions when it went on to apply the Comito balancing test to the evidence of the

12 second charge. [d. at 987-89. The evidence subject to hearsay exceptions was not at issue in

13 the appeal. Given the equivocal language ("should satisfy" due process) and the lack of a
14
direct ruling, this dicta is arguably indicative ofthe court's inclinations, but cannot be said to
15
be dispositive on the hearsay exception issue.
16

17

26. Other relevant Ninth Circuit cases cited by the parties preceded Comito and did

18 not discuss hearsay exceptions as a whole. The cases implicitly raised the business document

19
and public records exceptions by virtue of the types of contested evidence at issue; one of

20

these cases explicitly mentioned the public records exception.
21

22

In United States v. Walker, 117 F3d 417 (9th Cir 1997), the court found it was

23 harmless error to admit evidence of a single date from documentary hearsay that should have

24 been subjected to a balancing test but was not. Walker, 117 F3d at 420-21. The court's
25
rationale focused on the reliability of the date in light of the defendant's failure to challenge
26
the document's reliability and to present contrary evidence. The court noted, but did not rule,
27

28

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Case 2:94-cv-00671-LKK-GGH Document 1398 Filed 02/25/08 Page 12 of 293

1 that the document was "most likely admissible as a public records exception." Id (emphasis
2
added).
3
In United States v. Simmons, 812 F.2d 561 (9th Cir 1987), the court held that
4
5 admission of hospital records at a probation revocation hearing was not plain error in light of

6 the "traditional indicia of reliability that these records bear." Id at 564-65. The court's

7 analysis appears to attach to the specific evidence in the case - hospital records.
8
In United States v. Miller, 514 F.2d 41 (9th Cir 1975), the court found no prejudice to
9
defendant when the lower court admitted into evidence unauthenticated copies of state court
10
11 criminal records, which showed that defendant had been convicted of criminal offenses while

12 on probation. Although the defendant had objected to the introduction of the records at the
13 revocation hearing, he had not challenged the accuracy of the information revealed by the
14
records, nor had he offered any evidence to refute the claimed convictions. Miller, 514 F.2d
15
at 42. Based on these facts, the court found the unrefuted evidence reliable and admissible
16
17 under Morrissey and Gagnon. Id. at 42-43.

18

Martin discussed the expectations of reliability that should be accorded urinalysis

19
reports, implicitly as evidence commonly treated as a business records exception. Martin,
20
984 F.2d at 313-14. The court held that the defendant had a right to confront that evidence to
21
22 impeach factors such as efficacy of procedures, experience, and qualifications. Id. at 312-14.

23

In nearly all of the cases discussed above, the court's language indicates that the

24 narrow facts - a date, a court's record of convictions - are particularly significant to the

25 holding. Walker, 117 F.3d at 421; Miller, 514 F.2d 41; Simmons, 812 F.2d at 564·65. One

26 case suggests recognizing documents subject to one hearsay exception (Walker, 117 F.3d

27 417); another rejects categorically admitting even a subset of that same hearsay exception

28 (Martin, 984 F.2d at 313-14). There does not appear to be a clear record for treating these

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Case 2:94-cv-00671-LKK-GGH Document 1398 Filed 02/25/08 Page 13 of 293

1 rulings as generalizable. Indeed, the court in Martin wrote:

2

[A]rbitrariness is achieved just as surely by the incremental creation of

3

blanket exceptions as by the outright abandonment of fair procedure.

4 Martin, 984 F.2d at 314 n.9.

5

27. All of the Ninth Circuit cases, including those appearing to advocate admission on

6
the basis of hearsay exceptions, continue to recognize the Comito balancing test as the norm.
7
None of these cases admits a contested piece of evidence expressly on the basis that it falls
8

9 within a hearsay exception and without conducting a balancing test. Nor does any court rule

10 directly on whether hearsay exceptions categorically establish admissibility. While the Ninth

11 Circuit may use the cited cases as a basis to extend its holdings in the future, it has not yet
12
done so.
13
28. The Second Circuit, on the other hand, does appear to hold that hearsay
14
15 exceptions render the balancing test unnecessary. In United States v. Jones, 299 F.3d 103,

16 113 (2d Cir. 2002), the court found it was not an abuse of discretion to admit evidence under
17
the present sense impression and excited utterance exceptions. Jones, 299 F.3d at 113. The
18
Second Circuit distinguished the case from preceding authority requiring a balancing test on
19
20 the basis that hearsay exceptions applied. Id. Alternatively, the court wrote, in the Second
21 Circuit's balancing test, the hearsay exceptions would serve to satisfy the required element of

22 reliability. Id. at 113-14. In reaching that conclusion, however, the court relied on cases

23
whose validity has now been called into question by a subsequent United States Supreme
24
Court decision (see infra at 15-16).
25

26

United States v. Aspinall, 389 F.3d 332 (2d Cir 2004), followed the rule laid out in

27 Jones, applying it to documents potentially falling under the business records exception.

28 Aspinall, 389 F.3d at 343-46. United States v. Williams, 443 F.3d 35 (2d Cir 2006), also cited
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1 this rule, although it went on to conduct a balancing test because the involved hearsay
2
exception was not firmly rooted. Williams, 443 F.3d at 45-46.
3
29. One other Circuit offers reason to believe it might employ hearsay exceptions in
4
5 parole revocation proceedings. In Prellwitz v. Berg, 578 F.2d 190 (ih Cir. 1978), the Seventh

6 Circuit cited the Morrissey dictates of a:

7

right to confront and cross-examine adverse witnesses (unless the hearing

8

officer specifically finds good cause for not allowing confrontation),

9 but then wrote,

10

forcing the state to show good cause for not producing the hearsay

11

declarant would unwisely extend the limited due process rights of a

probationer at the revocation hearing.

12

Prellwitz, 578 F.2d at 192. The basis for rejecting the Morrissey requirement was not made
13

14 explicit. The Ninth Circuit, in Comito, expressly held that requiring the state to show good

15 cause was critical. Comito, 177 F.3d at 1170.
16
The court in Prellwitz offered two reasons that admitting the contested evidence was
17
proper: that the documents were a "conventional substitute for live testimony" permitted by
18
19 Gagnon and that they bore indicia of reliability, using language suggesting this was premised

20 on the business records exception. Prellwitz, 578 F.2d at 192-93. This case, however,

21 preceded Comito by two decades, and as noted, employed rationale that Comito squarely

22
rejected.
23
Rights in relation to criminal defendants
24

25

30. It is a significant concern that procedures for parolees do not exceed the rights

26 due criminal defendants. As noted above, it is well-established that the process due in parole

27 revocation and similar proceedings is distinctly limited in relation to the rights of criminal
28
defendants, and that due process for parolees arises from the Fifth and Fourteenth
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1 Amendments rather than the Sixth Amendment. Morrissey, 408 U.S. at 482; Hall, 419 F.3d
2
at 985-86.
3
Defendants cite to two Supreme Court decisions, which held that evidence that falls
4
5 within a firmly-rooted hearsay exception has sufficient guarantees of reliability to satisfy the

6 Confrontation Clause requirements in criminal proceedings. Ex. 2 to Ex. B at 6:3-14, citing

7 White v. Illinois, 502 US 346 (1992); Idaho v. Wright, 497 US 805 (1990). Defendants argue
8
that, given the High Court's decisions, that same evidence should be sufficiently reliable to
9
be admitted under the less rigorous protections in a revocation proceeding, a principle
10
11 discussed in Hall. Ex. 2 to Ex. B at 6:3-14.

12

Plaintiffs argue that the principle announced in White and Wright was overturned in

13 Crawford v. Washington; Plaintiffs are only partially correct. Ex. 3 to Ex. B at 5:7 -7:2. In
14
Crawford, the Supreme Court held that testimonial evidence could not be admitted without
15
16 confrontation in a criminal trial unless the declarant was unavailable and the accused had had

17 a prior opportunity for cross-examination. CrawfOrd v. Washington. 541 U.S. 36, 68 (2004).

18 But the Court expressly limited its holding to testimonial evidence, which, while not fully
19
defined, included, at a minimum, prior testimony at a preliminary hearing, before a grand
20
jury, or at a former trial; and police interrogations. Crawford, 541 U.S. at 68. The Court left
21
22 open the possibility that its earlier cases might still control as to other types of hearsay.

23 Crawford, 541 U.S. at 68. ("Where nontestimonial hearsay is at issue, it is wholly consistent

24 with the Framers' design to afford the States flexibility in their development of hearsay law-
25
as does Roberts, and as would an approach that exempted such statements from
26
Confrontation Clause scrutiny altogether.") The Court expressly declined to say whether it
27

28

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1 would overrule White, one of the cases standing for the proposition that hearsay within a
2
firmly rooted exception satisfies the Sixth Amendment Confrontation Clause. Id. at 61.
3
The Supreme Court has subsequently ruled on one distinguishing aspect between
4
5 testimonial and nontestimonial evidence in the context of statements to police. Davis v.
6 Washington (2006) _U.S. _ [165 L.Ed.2d 224, 126 S.Ct. 2266]. In Davis, the Court
7 found that statements, which the trial court had treated as excited utterances and present
8
sense impressions, were testimonial because they were made after the events and the primary
9
purpose was to establish or prove past events potentially relevant to later criminal
10
11 prosecution. Id. at 2272, 2273-74. It does not appear that the Supreme Court has issued any
12 further decisions concerning the treatment of hearsay exceptions after Crawford.
13
Thus, it is unsettled whether, and which, hearsay exceptions now provide guarantees
14
of trustworthiness sufficient to satisfY the demands of the Confrontation Clause. United
15
16 States v. Weiland, 420 F.3d 1062, 1076 (9th Cir 2005) ("If the evidence is nontestimonial,
17 there is uncertainty as to whether the 'indicia of reliability' or firmly rooted hearsay
18 exception test enunciated in Ohio v. Roberts survives Crawford." [citations omitted])
19
It is undisputed that Crawford does not apply to parole revocation and similar
20
proceedings. See Hall, 419 F.3d at 985. Given the uncertainty in the law in the criminal
21
22 context, however, no analogy can be drawn as to the standard for admission in the more
23 flexible revocation proceedings. In the absence of clarity about criminal defendants' rights,
24 the Special Master cannot say whether the Comito balancing test would afford greater or
25
lesser rights to parolees.
26
31. More persuasive is the argument that, when viewed in context, parolees continue
27
28 to have significantly fewer rights in revocation proceedings. Ex. 3 to Ex. B at 4:20-27. Even
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1 if it were determined that not treating hearsay exceptions as per se admissible affords greater
2
rights to parolees than criminal defendants, the advantage is limited to that aspect of the
3
proceeding. Criminal defendants receive the full protections of the Confrontation Clause,
4
5 other aspects of the Sixth Amendment, the rules of evidence, and the State's higher burden of

6 proof, none of which is available to parolees facing revocation. Id

7

Reliability as an independent test

8
32. Defendants present several arguments concerning the role of reliability in
9
determining the admissibility of hearsay. They argue that the indicia of reliability inherent in
10

11 hearsay exceptions provide an independent basis for admission, rendering any balancing test

12 unnecessary. Ex. 2 to Ex. Bat 2:5-12,7:12-13; Ex. 4 to Ex. B at 6:16-17. Alternatively,
13
Defendants argue that indicia of reliability establish good cause for denying confrontation,
14
either because reliability, alone, can satisfy good cause (Ex. 2 to Ex. Bat 2:11-12; Ex. 4 to
15
16 Ex. B at 2: 17-19, 6: 16-17, 8: 18-23), or because reliability is one of the factors in determining
17 good cause (Ex. 2 to Ex. B at 3:24-26, 10:18-19; Ex. 4 to Ex. Bat 3:23-28). Assuming

18 arguendo that reliability of evidence can establish good cause, Defendants do not explain
19
whether, or how, such good cause automatically outweighs the confrontation right in every
20
instance. Finally, Defendants also indicate that reliability may be a factor on both sides of
21
22 the balancing test. Ex. 2 to Ex. B at 11: 14-16.

23

33. The courts' use of reliability has been highly inconsistent. Some of the Ninth

24 Circuit's earlier cases decided hearsay admissibility on reliability alone. Miller, for example,
25
allowed in unauthenticated, but unrefuted, copies of court file contents, declaring them
26
reliable without further discussion. Miller, 514 F.2d 41. Simmons noted a line of cases,
27
28 including Miller, which determined admissibility of evidence using the reliability rationale.

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1 Simmons, 812 F.2d at 564. Although the court in Simmons identified Morrissey and Gagnon
2
as calling for a balancing of the defendant's right to confrontation against the government's
3
good cause for denying it, it did not apply that test. The court affinned the admission of
4
5 certified hospital records on the basis of their traditional indicia of reliability. Id. at 564-65.

6

The Ninth Circuit next began applying the balancing test described in Simmons and

7 treated reliability as an element of the good cause prong. See Martin, 984 F.2d at 312
8
(detennining degree of good cause by looking to both the difficulty and expense of procuring
9
witnesses and the traditional indicia of reliability of the proffered evidence). Walker
10
11 reinforced the balancing test as a requirement but acted on the basis of reliability alone to

12 find that admission without balancing was harmless error. The evidence at issue was solely a
13
date and was unrefuted. Walker, 117 F3d at 421.
14
The Comito decision followed, endorsing and developing the previously announced
15
16 balancing test. Comito dictates considering reliability when assessing the confrontation right
17 prong of the test:

18

Comito's interest in confronting Connell directly was further strengthened by the

19

nature of the disputed hearsay evidence. Unsworn verbal allegations are, in general,

the least reliable type of hearsay, and the particular utterances at issue here bore no

20

particular indicia of reliability.... Because the hearsay evidence was important to the

court's finding, and because it involved the least reliable fonn of hearsay, Comito's

21

interest in asserting his right to confrontation is at its apogee.

22
Comito, 177 F3d at 1171.
23
The only subsequent Ninth Circuit case on point that the parties have identified
24

25 appears to use reliability three different ways at different points in the opinion. In Hall, the

26 court first used reliability in detennining the degree of the parolee's confrontation right.

27 Hall, 419 F3d at 988. Following Martin, the court then weighed reliability as one factor on
28
the good cause side of the balance as well. Id. When summarizing that same section,
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1 however, the court seemed to say that reliability was a factor separate from good cause. Id. at
2
989. ("Although Hall had a strong interest in confronting Hawkins with regard to the false
3
imprisonment charge, on balance, that interest is outweighed by the government's good cause
4
5 for not producing Hawkins as a witness and the independent indicia of reliability that support

6 Hawkins' statements to Officer Gross." (emphasis added))

7

34. Other, varied practices are evident in other circuits. The Second Circuit seems to

8
add reliability to the balancing test, weighing both reliability and good cause against the right
9
to confrontation (unless the evidence has already come in under a hearsay exception, as
10

11 discussed above). See United States v. Chin, 224 F.3d 121, 124 (2d Cir 2000); accord

12 Aspinall, 389 F.3d at 343; accord Williams, 443 F.3d at 45.

13
35. The cases that indicate that reliability alone suffices for admission are the United
14
States Supreme Court cases whose validity has been called into question by Crawford;
15
16 Seventh, Second, and Fourth circuit cases; and California state cases. See, e.g., Idaho v.
17 Wright, 497 U.S 805 (1990); United States v. Jones, 299 F.3d 103 (2d Cir 2002); Prellwitz v.

18 Berg, 578 F.2d 190 (2d Cir 1978); United States v. McCallum, 677 F.2d 1024. 1026-27 (4th

19
Cir.), cert. denied, 459 U.S. 1010, 103 S.Ct. 365, 74 L.Ed.2d 400 (1982); People v. Mald,

20

(1985) 39 Ca1.3d 707; People v. Abrams, No. B194835, slip op. at
21

(Cal. Ct. App. Dec.

22 21,2007).

23

36. Comito established its balancing test after the cases in which reliability was used

24 as the sole basis for admission, save two California Court of Appeal cases. Given that the
25
Ninth Circuit initially used a reliability approach, and then adopted a multifactorial test
26
throughout the 1990s, it is reasonable to assume that the Ninth Circuit deemed reliability,
27
28 alone, an insufficient basis for admission. Indeed, in Comito, the court rejected the argument

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1 that reliability was enough on its facts, given the defendant's heightened confrontation

2
interest:

3

The Government also argues that, even absent a showing of difficulty in

4

obtaining Connell's testimony, the hearsay evidence bears sufficient indicia

5

of reliability, by virtue of the other testimony and evidence presented at the

hearing, to make it admissible. Given the substantial nature of Comito's

6

interest in confrontation and the absence of good cause for the

Government's failure to produce the adverse witness, the supporting or

7

corroborative evidence noted by the Government cannot suffice to deprive

8

Comito of his constitutional right to confrontation.

9 Comito, 177 F.3d at 1172. Martin, likewise, used very strong language in rejecting the sole

10 reliance on reliability on its facts:

11

In essence, the government urges us to hold that urinalysis reports are so

12

inherently reliable that they may be introduced in any revocation hearing.

... such a blanket rule would be tantamount to abandonment of the
13
Simmons balancing test; we would effectively hold that the weight of the

14

defendant's right to confrontation is irrelevant in revocations involving

urinalyses ...

15

16 Martin, 984 F.2d at 313. Hall, too, followed Martin's rejection of a blanket rule based on

17 reliability when the court analyzed the second charge against the defendant. Hall, 419 F.3d at

18 988. The court added that, even when the evidence in question was reliable and corroborated,
19
the defendant's "strong interest in confrontation is somewhat lessened by the reliability ofthe
20
hearsay evidence, but it is not defeated" and completed the balancing test. ld. Thus, the most
21
22 recent Ninth Circuit cases all identifY circumstances in which reliability alone is insufficient,

23 illustrating the need for a balancing test.

24

Conclusion as to hearsay exceptions

25
37. The existing case law does not provide sufficient reason for varying from
26
established precedent. The Ninth Circuit cases support the continued use of the Comito test
27

28 and do not provide a clear path toward treating hearsay exceptions differently. Persuasive

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1 authority varies substantially from the Ninth Circuit's reasoning in ways that the Ninth

2
Circuit, through its writings, seems disinclined to adopt. See, e.g., Martin, 984 F.2d at 313-
3
314; Comito, 177 F.3d at 1170.
4

5

The Comito balancing test serves all necessary purposes well. It serves

6 administrative flexibility, one of the primary goals of the revocation proceedings

7 jurisprudence. It recognizes that hearsay exceptions have an important role in admission
8
decisions, by increasing reliability and reducing the weight of the parolee's interest in the
9
balance. It helps ensure that revocation decisions are based on verified facts, to both the
10
11 parolees' and the State's benefit. Use of the test does not give parolees more rights than

12 criminal defendants who are protected by the rules of evidence, the Confrontation Clause,

13
and other guarantees not afforded to parolees. Without any mandate arising from the case
14
law, any change would be within this Court's discretion. The Court should opt to retain the
15
existing standard set forth in Comito.
16

17

In fact, per se admission based on hearsay exceptions would likely have unintended

18 deleterious effects on justice, predictability, and administrative flexibility. Those cases
19
favoring the categorical admission based on hearsay exceptions involved supervised release
20
and probation revocation decisions that were made by judges. See, e.g., Williams, 443 F.3d
21
22 35; Jones, 299 F.3d 103; Aspinall, 389 F.3d 332; Hall, 419 F.3d 980. Fewer than half of

23 Defendants' hearing officers (Deputy Commissioners) are lawyers. Ex. B at 81:1-21. The

24 record shows that some of Defendants' staff, the Special Master, and observers already
25
perceive confusion and unreasonable variability in the application of the existing balancing
26
test. Findings of Fact, supra, ~ 9-16. To introduce, as new concepts, the nuances of hearsay
27
28 exceptions and all of their conditions, and to require facility in applying those tests as well as

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1 the Comito balancing test - including recognizing and managing hearsay that requires
2
balancing that exists within evidence admissible under an exception - is an invitation to
3
worsening predictable outcomes consistent with due process, not to mention undermining the
4
5 administrative ease and flexibility meant to attach to these less formal proceedings.

6 III. Corroboration for hearsay

7

38. In applying the balancing test, corroboration may increase reliability for proffered

8
hearsay. Defendants argue that various types of proffered evidence may serve as
9
corroboration, including other hearsay; Plaintiffs disagree. Ex. 2 to Ex. B at 9:26-28.
10

11

39. While neither party offers federal authority directly on point, Defendants cite Hall

12 and Comito as examples where hearsay was used to corroborate other hearsay, suggesting
13
implicit endorsement of the practice. Ex. 2 to Ex. B at 10:2-4.
14
In Hall, the court analyzed separately the alleged victim's unsworn statements
15
16 concerning a domestic violence allegation and a false imprisonment violation. Hall, 419
17 F.3d at 986-89. Because the government's good cause was found to outweigh the

18 defendant's interest in confronting the hearsay offered on the first charge, the evidence was
19
admitted. Id at 987. The court then considered corroboration for the hearsay offered on the
20
second charge. The corroboration took the form of: the hearsay statements on the first charge
21
22 that were admissible by virtue of surviving the Comito balancing test, four pieces of

23 testimony based on direct observations, defendant's admissions, and four pieces oftestimony

24 recounting the alleged victim's unsworn verbal allegations to those witnesses. Id at 988.
25
Thus, the court used both hearsay and nonhearsay evidence to corroborate the hearsay at
26
issue; it did not discuss the differences between the types of corroboration, nor did it rule on
27
28 what types are permissible.

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1

In Comito, the court examined whether nonhearsay and hearsay evidence supported

2
the charge; the court did not consider whether the corroborating evidence should make the
3
contested piece of hearsay admissible. Comito, 177 F.3d at 1168-69. In fact, it noted:
4

5

[w]hile the additional evidence may also be subject in whole or in part to

valid objections based on hearsay and Comito's right to confrontation,

6

those challenges are not raised before us.

7 Id. at 1169. This dictum emphasizes that the court was only working with the record before

8
it; the gratuitous inclusion suggests that the court might not otherwise have admitted or used
9
that hearsay. This court also did not rule on what types of corroboration are permissible.
10

11

40. There are also persuasive California state cases that may be useful to consider.

12 The California Supreme Court considered corroborating evidence while applying a test

13 similar to that employed in Comito. In People v. Arreola (2004) 7 Ca1.4th 1144, the

14
California Supreme Court specified that corroborating evidence must itself be admissible:
15

16

Thus, in determining the admissibility ofthe evidence on a case-by-case

basis, the showing of good cause that has been made must be considered

17

together with other circumstances relevant to the issue, including ...

whether other admissible evidence, including, for example, any admissions

18

made by the probationer, corroborates the former testimony...

19
Arreola, 7 Cal. 4th at 1160 (emphasis added).
20
Similarly, one California appeals court ruled against California's Board of Parole
21
22 Hearings in a challenge to the exact practice the Board now proposes. See In re Miller 145
23 Cal.App.4th 1228 (Cal.Ct.App. 2006). In Miller, to corroborate the alleged victim's unsworn

24 verbal statements to a law enforcement officer, the State offered hearsay statements of third-
25
party witnesses and an uncertified medical report containing further unsworn statements by
26
the alleged victim. Id. at 1238. The court rejected this, writing:
27

28

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1

adopting such a criterion would eviscerate the need to provide indicia of

2

reliability before hearsay evidence is received. Were this standard adopted,

unreliable hearsay evidence could become reliable simply by attributing the

3

evidence to several sources.

4 [d.
5
41. While the cases concerning corroboration raise uncertainties, on balance, it
6
appears that these courts expect corroboration to come from competent evidence. This is
7
8 certainly consistent with traditions, and the Special Master recommends a ruling that

9 corroboration may only be drawn from admissible evidence, which may include hearsay that
10 has survived its own Comito balancing test analysis.
11
IV. Continuing hearings beyond the Valdivia deadline
12
42. Plaintiffs allege that Defendants sometimes respond to a confrontation rights
13
14 objection by postponing the hearing beyond the deadline prescribed by the Permanent

15 Injunction, as an opportunity to provide more competent evidence. Ex. 1 to Ex. B at 19:9-24.
16
It is undisputed that this practice occurs, though Defendants take the position that seeking
17
further evidence for this reason can constitute good cause for exceeding the deadline. Ex. B
18
19 at 92:4-8. Plaintiffs provided the revocation hearing record of a case in illustration. See
20 supra at 7-8. The record contains no further evidence of the potential frequency or impact of

21 such a practice. Ex. B at 37:7 40:21. Neither party provided authority for their positions.
22
43. There is merit to the arguments that a parolee has a right to expect aflnal hearing
23
within 35 days, as required by Paragraph 22 ofthe Permanent Injunction, and that the State
24
25 must meet or fail in its burden by that time, absent unforeseeable events. However, there is

26 not sufficient evidence in the record to support a court order, so the Special Master does not 27 recommend one.
28

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1 v. Representation for writs of habeas corpus
2
44. Plaintiffs take the position that, in order to enforce confrontation rights, parolees
3
should have representation available for writs of habeas corpus. Ex. 1 to Ex. B at 20:22 -
4
5 21 :3. Plaintiffs assert that Defendants should be required to fund this representation because

6 the complexity ofthe issues necessarily carries the risk of error, implementation has been

7 problematic long-term, and the rights at stake are critical. Ex. B at 79:16 - 80:25; Ex. 1 to
8
Ex. Bat 20:15 - 21:16.
9
Plaintiffs note that Defendants committed to funding writ representation as to one
10
11 other potential violation of the Permanent Injunction, designation of confidential information.

12 Ex. 1 to Ex. B at 21:3-5. Appellate representation is not funded for any other Permanent
13
Injunction provision, so this would be a significant departure from current practice and a
14
substantial increase in Defendants' obligations. The risk of harm to individuals whose
15
16 confrontation rights are denied unreasonably is, without a doubt, significant. Were those
17 parolees entirely without a remedy, we would face a different situation, but they do have the

18 remedy of writs of habeas corpus. It is likely that many parolees' lack of sophistication and
19
resources hinder effective use of this system. But the parties did not present any authority
20
compelling Defendants to take responsibility for counteracting this, or any reason to believe
21
22 that the proposed funding would not be better spent on an internal system to identify and

23 rectify these problems directly. The Special Master recommends denying the request for an

24 order requiring Defendants to fund such representation.

25
RECOMMENDATIONS

26
A. Defendants distributed policies and procedures as required by the relevant provision

27

ofthe Permanent Injunction. Defendants provide some instruction on applying the

legal standards and exercise some oversight. When Defendants took a position that

28

their obligations had changed, it was based on a good faith interpretation of the case

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1

law. It appears that they have not instructed Deputy Commissioners to vary from

2

Comito balancing. They negotiated policy revisions in good faith and sought

clarification of the legal standards before proceeding further in negotiations.

3

Therefore,

4

• The Court should not find a violation of the Permanent Injunction.

5

6

B. Nevertheless, Defendants have not demonstrated that they are in compliance with

Paragraph 24 ofthe Permanent Injunction. Confusion, inconsistency, incorrect

7

application of standards, and failure to apply the required tests have been known for a

8

prolonged period. Yet Defendants have taken no action to identify the scope of the

problem and have not taken adequate steps to address the conditions that perpetuate

9

potential misapplications of the law.

10

Those conditions include the fact that some hearing officers have little experience in

11

the law, training has been limited, policies and procedures contain inaccurate

statements of applicable law, and Defendants have not subsequently assessed Deputy

12

Commissioners' understanding nor provided detailed standards, guidelines, or tools to

support decisionmaking.
13

14

Failures in evidentiary decisions carry a high risk of harm, including the denial of due

process and denial ofliberty without evidence adequate to meet the State's burden of

15

proof. Defendants have not demonstrated the capacity to independently remedy these

16

deficiencies. Therefore the Court should order:

17

1. The parties must undertake forthwith, and sustain, efforts to revise policies and

procedures, including guidelines and standards, that incorporate these principles:
18

19

o Decisions about whether to admit proffered hearsay must be made on

case-by-case basis. The weight accorded the balancing test factors,

20

contested evidence, and supporting evidence will vary with facts and

circumstances.
21

22

o Parolees have a right to confront and cross-examine adverse witnesses

unless the Deputy Commissioner specifically finds good cause for not

23

allowing confrontation; these two factors must be weighed against each

other.
24

25

o The principal factors in assessing the weight of a parolee's confrontation

interest are (1) the importance of the proffered evidence to the ultimate

26

finding and (2) the nature of the facts to be proven by the proffered

evidence, which tends to be treated as an assessment of reliability.
27

28

REPORT AND RECOMMENDATION REGARDING MOTION TO ENFORCE PARAGRAPH
24 OF THE VALDIVIA PERMANENT INJUNCTION 26

Case 2:94-cv-00671-LKK-GGH Document 1398 Filed 02/25/08 Page 27 of 293

1

o The parolee's interest in confronting the contested evidence is high if the

2

evidence will be important to the ultimate finding or if the evidence is

potentially unreliable.

3

o If the proffered evidence would be admitted in civil or criminal

4

proceedings under a hearsay exception, this increases its reliability and

5

makes it more likely to be admitted because the parolee's interest is

lessened.

6

o If nonhearsay evidence corroborates the proffered hearsay, this also

7

increases reliability and makes the hearsay more likely to be admitted.

8

Hearsay cannot be used to corroborate proffered hearsay unless it, too,

survives a Comito balancing test.

9

o The severity of the penalty a parolee faces is also a factor that could affect

10

his confrontation interest.

11
o The Deputy Commissioner must assess the good cause for the witness not

12

testifying. This includes, at least, inquiring into the efforts made to have

the witness attend, whether attendance is difficult or expensive, and

13

whether the witness is a confidential informant whose identity is unknown

14

to the parolee.

15

o Reliability of the hearsay is not a factor in determining whether the state

had good cause not to produce a witness.
16

17

o Deputy Commissioners may also take into account other factors on either

side of the balancing.

18

19

o The final decision whether to admit the proffered hearsay is reached by

comparing the strength of the parolee's interest concerning this particular

20

evidence to the state's good cause and determining which outweighs the

other.
21

22

2. Defendants must provide a plan, within 60 days after policies and procedures

have been negotiated, that contains the following components:

23

o Training must be provided to Deputy Commissioners, to parole agents and

24

such other Division of Adult Parole Operations staff as Defendants believe

25

are appropriate, and to attorneys representing parolees in revocation

proceedings.

26

• Plans for initial training should give serious consideration to

27

contracting for the services of professional trainers with experience

28

in evidentiary law and/or administrative proceedings willing to

adopt curriculum that results from the parties' efforts. If

REPORT AND RECOMMENDATION REGARDING MOTION TO ENFORCE PARAGRAPH
24 OF THE VALDIVIA PERMANENT INJUNCTION
27

Case 2:94-cv-00671-LKK-GGH Document 1398 Filed 02/25/08 Page 28 of 293

1

Defendants propose not to employ this method, they must provide

2

a detailed description of enhanced training that will be as rigorous

as training that would be provided under such a contract, and the

3

Special Master must approve such a proposal.

4

• Plans for initial training must include expeditious timelines for

5

delivering the training and must identify the amount and source of

funding necessary to carry it out.

6

• Continuing education on applying the legal standards concerning

7

confrontation rights to revocation proceedings must be provided,

8

annually at a minimum, for all of the above-described staff and

contract attorneys.

9

10

o Deputy Commissioners must meet minimum standards in order to conduct

the complex task of revocation hearings. Defendants' plan must define

11

those minimum standards; the methods by which Defendants will

12

determine whether Deputy Commissioners have met the standards; and the

methods by which Defendants will determine whether Deputy

13

Commissioners conducting revocation hearings continue to meet the

standards, assessed at regular intervals and, at a minimum, annually.
14

15
o Defendants' plan must include conducting a qualitative assessment, at

16

regular intervals, of whether Deputy Commissioners are applying the

standards within an acceptable range of discretion. This effort should

17

include at least these components:

18
• Develop, either internally or in conjunction with the administrators

19

of the attorney panel representing parolees in revocation

proceedings, an information system solution to support

20

assessments. That system must capture information sufficient for

21

Defendants to conduct systematic examinations of substantive due

process questions. It must also permit aggregate analysis,

22

identification of trends, sorting and reporting by relevant factors,

and individual case analysis.
23

24

• For each Deputy Commissioner conducting revocation hearings,

Defendants' reviewers must observe him or her in those hearings at

25

least twice annually.

26

• The assessment must include an examination of what further

27

training or remediation is needed for an individual or for staff more

generally. That training should be provided expeditiously.

28

REPORT AND RECOMMENDATION REGARDING MOTION TO ENFORCE PARAGRAPH
24 OF THE VALDIVIA PERMANENT INJUNCTION
28

Case 2:94-cv-00671-LKK-GGH Document 1398 Filed 02/25/08 Page 29 of 293

1

• A system of remediation must include following the CDCR

2

progressive discipline system. It should emphasize further training

and counseling to develop an individual's skills, and make use of

3

letters of instruction and further methods when necessary.

4

o Any components of this plan that can practically be implemented

5

independently must be implemented shortly after the parties reach

6

agreement. They must not be held in abeyance pending completion of the

full plans required under these orders.

7

8

o Development of these policies, procedures, training, and plans shall

proceed under the guidance of the Special Master. The Special Master or a

9

Deputy Special Master shall lead negotiation sessions.

10
Alternatively, the parties may agree to negotiate in the absence of the

11

Special Master and provide monthly progress updates, unless and until the

Special Master determines that progress is unsatisfactory under this

12

arrangement, at which time the Special Master would become involved in

13

the negotiations.

14

C. No order is warranted concerning deferring hearings to obtain more competent

15

evidence.

16
D. Representation for appeals is not required under the Permanent Injunction and is

17

funded for only one type of potential violation. While Defendants' practices

concerning confrontation rights are deficient and do not appear remediable without

18

further Court oversight, Defendants have proceeded in good faith and there is no

19

evidence that deficiencies are so egregious that they cannot be addressed without first

attempting the remedies ordered above.

20

• Plaintiffs' request to require the state to fund representation for writs of habeas

21

corpus challenging decisions to admit contested evidence should be denied.

22
23 Respectfully submitted,

24

25 Is/Chase Riveland
26 Chase Riveland Special Master
27

DATED: February 8, 2008

28

REPORT AND RECOMMENDATION REGARDING MOTION TO ENFORCE PARAGRAPH
24 OF THE VALDIVIA PERMANENT INJUNCTION
29

Case 2:94-cv-00671-LKK-GGH Document 1398 Filed 02/25/08 Page 30 of 293
INDEX TO EXHIBITS
Stipulated Order for Pennanent Injunctive Relief Reporter's Transcript of 12/14/07 Hearing, with its exhibits
Exhibit 1 - Notice of Motion and Motion to Enforce Paragraph 24 of the Valdivia Pennanent Injunction
Exhibit 2 - Defendants' Opposition to Plaintiffs' Motion to Enforce Paragraph 24 of the Valdivia Pennanent Injunction
Exhibit 3 - Plaintiffs' Reply in Support ofPlaintiffs' Motion to Enforce Paragraph 24 of the Valdivia Pennanent Injunction
Exhibit 4 Defendants' Response to Plaintiffs' Reply to Opposition to Motion to Enforce Paragraph 24 of the Valdivia Pennanent Injunction
CDCR Resource Documents 1, 2, 3 Declaration of Loren G. Stewart in Support of Plaintiffs' Motion to Enforce Paragraph 24 of the Valdivia Pennanent Injunction
Board of Parole Hearings Deputy Commissioner Training 12/20107
Reply Declaration of Loren G. Stewart in Support of Plaintiffs' Motion to Enforce Paragraph 24 of the Valdivia Pennanent Injunction, with some of its exhibits
Exhibit 2 - Defendants' letter dated June 8, 2007
Reply Declaration of Emest Galvan in Support of Plaintiffs' Motion to Enforce Paragraph 24 of the Valdivia Pennanent Injunction, with some of its exhibits
Exhibit 1 - First Report of the Special Master on the Status of Conditions of the Remedial Order
Exhibit 3 - CDCR Valdivia Monitoring Report Santa Rita County Jail
Exhibit 4 - CDCR Valdivia Compliance Report 9/26/07
REPORT AND RECOMMENDATION REGARDING MOTION TO ENFORCE PARAGRAPH 24 OF THE VALDIVIA PERMANENT INJUNCTION
30

Case 2:94-cv-00671-LKK-GGH Document 1398 Filed 02/25/08 Page 31 of 293

1
2 3
Ex. B-Sealed
4
5
6 Ex. C-Sealed
7 8
9 Ex. D-Sealed
10
11
12 Ex. E-Sealed
13 14
Ex. F-Sealed
15
16 Ex. G-Sealed
17
Ex. H-Sealed
18
19 20
21 22 23 24
25 26 27
28

Exhibit 5 - Board of Parole Hearings Deputy Commissioner Workshop 3/27/07
Reply Declaration of Anne Mania in Support ofPlaintiffs' Motion to Enforce Paragraph 24 of the Valdivia Permanent Injunction
Reply Declaration of Kristen Palumbo in Support ofPlaintiffs' Motion to Enforce Paragraph 24 of the Valdivia Permanent Injunction, with some of its exhibits
Exhibit 3 - Form BPH 1103 for Parolee 3
Reply Declaration of Shirley Huey in Support ofPlaintiffs' Motion to Enforce Paragraph 24 of the Valdivia Permanent Injunction, with its exhibit
Exhibit 1 - Transcript of Revocation Hearing for Parolee 1
Declaration of Shirley Huey in Support of Plaintiffs' Notice ofMotion and Motion to Enforce Paragraph 24 of the Valdivia Permanent Injunction
Plaintiffs' Notice of Lodging ofRevocation Hearing Transcripts
Transcript of Revocation Hearing for Parolee 3
Transcript of Revocation Hearing for Parolee 2

REPORT AND RECOMMENDATION REGARDING MOTION TO ENFORCE PARAGRAPH
24 OF THE VALDIVIA PERMANENT INJUNCTION 31

Case 2:94-cv-00671-LKK-GGH Document 1398 Filed 02/25/08 Page 32 of 293
EXHIBIT A

Case 2:94-cv-00671-LKK-GGH Document 1398 Filed 02/25/08 Page 33 of 293

1 BINGHAM l\1cCUTCHEN KAREN KENNARD - 141925
2 KRISTEN A, PALUMBO - 215857 Three Embarcadero Center
3 San Francisco.; California 9411 1-4067 Telephone: (415) 393-2000
4
PRISON LAW OFFICE j DONALD SPECTER - 83925
General Delivery 6 San Ouentin, California 94964
Telepnone: (415)457-9144
7
g
STEPHEN J. PERRELLO, JR. - 56288 9 P.O. Box 880738
San Diego, California 92618 10 Telephone: (858) 277-5900
11

RECEIVED
NOV 1 9 2003
ROSEN 8fEN & ASARO
ROSEN\-.BIEN & ASARO) LLP MICHA.I:~L W. BIEN - 090891 ERNEST GALVAN 196065 MARl L. WILLITS - 209612 155 Montgomery Street, 8th Floor San FranCISCO, CaJifol1'nl:l 94104 Telephone (415) 433-6830 ALEX LANDON - 50957 2442 Fourth Avenue San Diego, California 92101 Telephone: (619) 232-6022

12 Attorneys for Plaintiffs
13

14

UNITED STATES DISTRICT COURT

15

EASTERN DISTRICT OF CALIFORNIA

16

17 JERRY VALDIVIA, et al.,
18
Plaintiffs, 19
20 v.

No. Civ. S-94-0671 LKKJGGH
STIPULATED ORDER FOR PERMANENT INJUNCTIVE RELIEF

21 ARNOLD SCHWARZENEGGER, et aI.,

Defendants.

25
26
27
2~

I

Case 2:94-cv-00671-LKK-GGH Document 1398 Filed 02/25/08 Page 34 of 293

1 I. INTRODUCTION

2

L This action was filed on May 2, 1994. Plaintiffs. on behalf of themselves

3 and the class they represent, challenged the constitutionality of parole revocation

4 procedures conducted by the California Board of Prison Tenns (HBPT') and the

5 California Department of Corrections ("CDC").

6

2. The Court certified this case as a class action by order dated December ],

7 1994. lbe Plaintiff class consists of the following persons: (I) CaHforni a paro1 ees who

8 are at large; (2) Califo~ia parolees in custody as alleged parole violators, and who are

9 awaiting revocation of their state parole; and (3) California parolees who are in custody)

10 having been found in violation ofparo]e and sentenced to prison custody.

11

3. TIle Defendants are state officials responsible for the policies and

12 procedures by which California conducts parole revocation proceedings.

13

4. On June 13,2002, this Court granted partjal summary judgment in favor of

14 Plaintiffs, holding that California's unitary parole revocation system violates the due

15 process rights of the Plaintiff class under Morrissey v. Brewer, 408 U.S. 481 (1972),

16 Gagnon v. Scarpelli, 411 U.S. 778 (1973), and related authority. The Court held that

17 Califomiats parole revocation system violated the due process clause of the Fourteenth

18 Amendment by Hallowing a delay of up to forty-five days or more before providing the

19 parolee an opportunity to be heard regarding the reliability of the probable cause

20 determination." Valdivia v. Davis, 206F. Supp. 2d 1068,1078 (E.D. Cal. 2002).

21

5. The parties stipulate that this lS not a "CIvil case with respect to prison

22 conditions," as those terms are defined and applied in the Prison Litigation Reform Act

23 ("PLRAU ), 18 U.S.C. § 3626, and that therefore this Order is not governed by the

24 FLRA.

25

6. The parties hereby stipulate that the Court shall ADJUDGE, DECLARE,

26 AND DECREE as follows:
27

28

$TIPULATED ORDER FOlt PERMANENT INJUNCTIVE REl.JEi-..·w...."._M._...

1

Civ. S-94-067I I..K.KIGGH

Case 2:94-cv-00671-LKK-GGH Document 1398 Filed 02/25/08 Page 35 of 293

II. PARTIES

2

7. The Plaintiff class consists of the fonowing persons: (1) CaHfornia

3 parolees who are at large; (2) California parolees in custody as alleged parole violators,

4 and who are awaiting revocation of their state parole; and (3) California parolees who

5 are in custody, having been found in violation ofparoJe and sentenced to prison

6 custody.

7

8. The Defendants are state officials responsible for the policies and

8 procedures by which California conducts parole revocation proceedings. Defendant

9 Arnold Schwarzenegger is Governor of the State of California and Chief Executive of

10 the state government. Defendant Roderick Q. Hickn1an is the Secretary of the

11 California Youth and Adult Correctional Agency. Defendant Edward S. Alameida, Jr.,

12 is Director of the California Department of Corrections. Defendant Richard Rimmer is 13 Deputy Director of the California Department of Corrections, Parole and Community

14 Services Division (UP&CSD"). Defendant Carol A. Daly is a Commissioner and Chair

15 of the Board of Prison Terms ("BPT'). Defendants Alfred R. Angele, Sharon Lawin,

16 Booker T. Welch, Jones M. Moore, and Kenneth L. Risen are Commissioners of the

17 BPT. Defendant Kenneth E. Cater is Chief Deputy Commissioner of the SPT. 18

19 In. DEFINITIONS

20

9. The following terms when used in this Order shall have the meanings

21 specified below:

22

(a) "Parolee(s)" shall mean ~ny member of the Plaintiff class.

23

(b) «Day(s)" shall mean calendar days, unless otherwise specified.

24

(c) "Revocation processH or "revocation proceedings" shall mean all stages of the

25 process by which parole may be revoked, including placement of a parole hold, notice~

26 waivers, service of Return to Custody Assessments, and hearings.

27

(d) "Return to Custody Assessments" C'RTCAsl» shall mean the practice by

28 which Defendants offer a parolee a specific disposition in retumfor a waiver of the

STIPULATED ORDER FOR PERMANENT INJUNCTIVE RELIEf.

2

Civ. S·94·0671 lJC.KJOOH

Case 2:94-cv-00671-LKK-GGH Document 1398 Filed 02/25/08 Page 36 of 293

1 parolee's right to a preliminary or final revocation hearing, or both.

2

(e) "Parole hold" shall mean any invocation by Defendants of their authority 10

3 involuntarily detain a parolee for revocation proceedings under Section 3056 of the

4 California Penal Code. This term shall not apply to the detention of a parolee who has

5 absconded from the State of California until he or she is physically returned to the State .

6 of California and is in its cus,tody.
7

8 IV. POLICIES, PROCEDURES, FORMS; AND PLANS

9'

10. For all policies, procedures. fonns) and plans developed under this Order,

10 the parties shall use the following process: Defendants shall meet periodically with

11 P1aintiffs' counsel to discuss their development of policies, procedures, fOTITIs, and 12 plans. In preparation for such meetings, Defendants will provide Plaintiffs' counsel 13 with copies of the proposed policies, procedures, forms, and plans in draft form no later

14 than 7 days before the meeting. If the parties reach an impasse on any particular issues, 15 they may bring the disputed issues to the Court in a motion to be heard on shortened

16 time.

17

11. Using the procedure set forth above in Paragraph 10, Defendants shall do

18 the foHowing:

19

(a) Defendants shall develop and implement sufficiently specific Policies and

20 Procedures that will ensure continuous compliance with aU of the requirements of this

21 Order. The Policies and Procedures will provide for implementation of the August 21,
22 2003 Remedi~l Plan Outline (attached hereto as Exhibit A), as well as the requirements

23 set forth below in Paragraphs 12-24. Defendants shall submit the completed Policies

24 and Procedures to the Court no later than July 1, 2004.

25

(b) By July 1,2004, Defendants shall begin implementing the following steps

26 in the parole revocation process, which shall be completely implemented by January I,

27 2005: 28

(i) Defendants shaH apPolnt counsel for all parolees beginning at the

STIPULATED ORDER FOR PERMANENT JNJUNCTNE REUET',

3

C;V, S·94.(l671 I.f<.KIGO~1

Case 2:94-cv-00671-LKK-GGH Document 1398 Filed 02/25/08 Page 37 of 293

RTCA stage of the revocation proceeding. Defendants shall provide an expedited

2 probable cause hearing upon a sufficient offer of proof by appointed counsel that there

3 is a complete defense to all parole violation charges that are the basis of the parole hold.

4

(ii) No later than 48 hours after the parole hold, or no later than the next

5 business day if the hold is placed on a weekend or holiday, the parole agent and unit

6 supervisor will confer to determine whether probable cause exists to continue the parole

7 hold, and will document their detennination.

8

(iii) If the parole hold is continued thereafter, no later than 3 business days

9 after the placement of the hold, the parolee will be served with actual notice of the

10 alleged parole violation) including a short factual summary ofthe charged conduct and

11 written notice of the parolee's rights regarding the revocation process and timeframes.

12

(iv) For all parolees who do not waive or seek a continuance of a final

13 revocation hearing, Defendants shaH provide a final revocation hearing on or before the

14 35th calendar day after the placement of the parole hold.

15

(c) By July I, 2004~ Defendants shall serve on counsel for Plaintiffs an

16 assessmeilt of the availability of facilities and a plan to provide hearing space for

17 separate probable cause hearings.

18

(d) By Ju1y I, 2005, in addition to the steps listed above, for all parolees who

19 do not waive or seek a continuance of a probable cause hearing, Defendants shall

20 provide a hearing to determine probable cause no later than 10 business days after the

21 parolee has been served with notice of the charges and rights (at the 3rd business day

22 after the placement of the hold).

23

(e) Defendants shall complete implementati.on'ofthe Policies and Procedures

24 by Ju1y 1,2005.

25

12. In addition to the provisions ofthe August 21, 2003 Remedial Plan Outline,

26 the Policies and Procedures shall ensure that the foHowing requirements are met:

27

13. At the time of appointment, counsel appointed to represent parolees who

28 have difficulty in communicating or participating in revocation proceedings, shall be

STIPULA TEf) ORDER FOR PERMANENT INJUNCTiVE RELIeF. Cw, S·!)4.()671 LKKlGGH

, 4

Case 2:94-cv-00671-LKK-GGH Document 1398 Filed 02/25/08 Page 38 of 293

informed of the nature of the difficulty, including but not limited to: mental illness,

2 other cognitive or communication impainnents, illiteracy, limited English-language

3 proficiency, and the need for a foreign language interpreter. The appointment shall

4 allow counsel adequate time to represent the parolee properly at each stage of the 5 proceeding.

6

14. At the time of appointment, counsel shall be provided with all nOTI-

7 confidential reports and any other documents that the state intends to rely upon at the

8 probable cause or final revocation hearing. After appointment, if the state learns of

9 additional evidence or documents, and intends to rely on such additional evidence or
10 documents, it shall produce them to counsel as soon as practicable before the hearing.

11

15. Defendants shall deve10p and implement policies and procedures for the

12 designation of information as confidential that are consistent with the requirements of )3 due process.

14

16. Non-confidential portions of parolees' field mes shall be available to

15 parolees' counsel unless good cause exists for failure to provide access to such files.

16 Field file infonnation shall be withheld from counse]. as confidential only in accordance 17 with the policies and procedures referenced in Paragraph 15.

18

17. Defendants shall develop standards, guidelines, and training for effective

19 assistance of state appointed counsel in the parole revocation process.

20

18. Defendants will ensure that parolees receive effective communication

21 throughout the entire revocation process.

22

19. Defendants will ensure that all BPT and CDC forms provided to parolees

23 are reviewed for accuracy and are simplified to the extent possible through a procedure
24 similar to that used to revise f01111S in Armstrong v. Davis, C94-2307 CW (N.D. Ca1.).

25 This process will include translation of forms to Spanish. Revised forms will be
26 submitted to Plaintiffs' counsel for review prior to finalization, dissemination, or
27 modification.

28

20. Upon written request, parolees shall be provided access to tapes of parole

STIPULATED ORDER FOR PERMANENT iNJUNCnVE R.EIJF-F~-·-·-···------··-·····--·-·

5

Civ. $·94-0071 LKKIGGH

Case 2:94-cv-00671-LKK-GGH Document 1398 Filed 02/25/08 Page 39 of 293

revocation hearings.

2

2]. Parolees' counsel shaH have the ability to subpoena and present witnesses

3 and evidence to the same extent and under the same tenns as the state.

4

22. A t probable cause hearings, parolees shall be allowed to present evidence

5 to defend or mitigate against the charges and proposed disposition. Such evidence shaH

6 be presented through documentary evidence or the charged parolee's testimony, either

1 or both of which may include hearsay testimony.

8

23. Final revocation hearings shall occur within 35 calendar days of the parole

9 hold.

10

24. The use of hearsay evidence shan be limited by the parolees' confrontation

11 rights in the manner set forth under controlling law as currently stated in United States

12 v. Comito, 177 F.3d 1166 (9th CiT. ]999).. The Policies and Procedures shall inc1ude

13 guidelines and standards derived from such law.

14

15 V. STAFFING LEVELS

16

Defendants shaH maintain sufficient staffing levels in the CDC and BPT to meet

17 all of the obligations of this Order.

18

19 VI. MONITORING

20

25. The parties shaH cooperate so that Plaintiffs) counsel has access to the

21 infonnation reasonably necessary to monitor Defendants' compliance with this Order

22 and the Policies and Procedures adopted in response thereto. Such infonnation shall

23 include but not be limited to: access to documents, tqurs, observation of parole

24 revocation proceedings, observation of training sessions, interviews of staff, and

25 interviews with parolees. Plaintiffs' counsel may notice depositions under the Federal

26 Rules of Civil Procedure either: (1) if Plaintiffs' counsel are unab1e to obtain relevant

27 information through interviews and informal document requests, or (2) after notifying

28 Defendants of non-compliance with this Order under Section VII, below. Before

STlPUL.ATW OlmER I'QR PERMANENT INJUNCTIVE. REUEF.

6

Civ.8-94-067l l.KJ(JGGH

Case 2:94-cv-00671-LKK-GGH Document 1398 Filed 02/25/08 Page 40 of 293

noticing a depositiont Plaintiffs' counsel must consult with opposjng counsel about the 2 deposition schedule so that the convenience of counseC witnesses, and parties may be

3 accommodated, ifpossible.

4

26. The parties shall meet regularly, and at least once every 90 days, to discuss

5 implementation issues. At least once every 90 days, Defendants shan provide Plaint1ffs'

6 counsel with a report on hold-to-hearing time in substantially the same fonn, and with

7 the same content as that currently used in Defendants' weekly "RSTS" meetings.

8

27. The parties shall agree on a mechanism for prompt1y addressing concerns

9 raised by Plaintiffs' counsel regarding individual class members and emergencies.

10

11 VII. ENFORCEMENT

12

28. The Court shall retain jurisdiction to enforce the terms of this Order. The

13 Court shall have the power to enforce the terms of this Order through specific

14 performance and all other remedies pennitted by law or equity.

15

29. If Plaintiffs' counsel believe that Defendants are not complying with any of

16 the acts required by this Order, the Remedial Plans, or Policies and Procedures produced

17 pursuant to it, they shall notify Defendants in writing of the facts supporting their belief.

18 Defendants shall investigate the a]]egations and respond in writing within 30 days. If

19 Plaintiffs' counsel are not satisfied with Defendants' response, the parties shall conduct

20 negotiations to resolve the issue(s). If the parties are unable to resolve the issue(s)

21 satisfactorily, Plaintiffs may move the Court for any relief permitted by law or equity.

·22

23 VIII. ATTORNEY'S FEES AND COSTS

24

30. Plaintiffs are the prevailing party in this action. Plaintiffs' counsel may

25 move for an award of reasonable attorney's fees and costs for obtaining relief for the

26 Plaintiff class pursuant to 42 V.S.c. § 1988 or any other applicable law. Defendants

27 shall pay Plaintiffs' counsel reasonable attorney's fees for work perfonned in

28 connection with monitoring and enforcing this Order. The parties reserve the right to

1----------:::ST=lP:::-u::-l.J-:-=n=ED=-O=RD=ER:-:I'=OR=-P=E=RM~A~N=EN-=T71N:::,JUN~C'=rJV:-:::E:-::R~EI:-::JE::::;.F.--~--·""-··-·"--7Civ. 5·94·0671 LKJ(JOOH

Case 2:94-cv-00671-LKK-GGH Document 1398 Filed 02/25/08 Page 41 of 293
. !\ II II:i !l
1 ~I ad·.lre~s at a future dat.e whether 42 {I.S.C § 1997e(d) applies to an award ofattornt'y':;,
2\: tees in thifs suit.

31 IX. RESOl,UTION OF CLAIMS

.:; !,

3!. This stipu.lated order re~olve'3 an the daims in this case, except the

51! fonowing, to tlle extent that they are alleged in the Fifth Amended Complaint, if at alL

6 I

(a) AppeaJ~. Plaintiffs as~ert that Defendants' administrative-appeals system

71 tor parole-revocation and revocation-extension decisions vioJ.ates the Due Proce8S and

J
8 Equal Protection Clauses of the. Fourteenth Amendment.

9

(b) Rf::Y.Q~ation-Extension Proceeding§. Plaintiffs assert that Defendants'

101 poiicles, procedures, and practices for extending parole revocations based on alleged

11 I rulesviolahoDs while in custody violate the Due Proce~s Clau~e.

l2:,j

32 The parties anticipate that these issues will be resolved 111forrnally, wlthom

wm l~ 11 rH."{;d.f{:>r the ('(,urt's lrnerventi0n. The parties inform the Court if this does not

,.t\14 ~ oc-cu-r..

l51!

1611

IT IS SO STIPULATED.

171
! 81 Dated: ~:~!:_f.J.., 2003

I
. I 19 I
20 I

2111
! 22 I 23 1' Dated: JII~-'-4_' 2003

ROSEN, BIEN & ASARO

/# 11/' V~

_-_ ---_ -_ __ ~~ .- By

... ....... ............

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jV1ICHAEL BIEN

PRISON LAW OFFICE

241
2~ II
26 1!
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n
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... 0 , •••• , . ••••_ 0 _

By d>~_~..._...._.. DONALD SPECTER Attorneys f{nYlaintifh

Case 2:94-cv-00671-LKK-GGH Document 1398 Filed 02/25/08 Page 42 of 293

BILL LOCKYER) Attorney General of the State. of California, ROB 'e[;R.'r.R. .ANTJ)lJ...•. :.:cR''.','))C1I].'~\, (.."L\l't,.·{, Assistant Attorney General, .t.;: '[D'\.},. LNI'l-'ES\l.' GRl.IN DE'..0('.; ,s.;em.or Assistant Attorney Ge.neraL JON ATHAN L. WOLFF. St;p~rvisjng Deputy Attorney
G~encral
By /.. }I ~.J -_."---"-~ '--'--_ ......-..•_.THOMAS S. PA.1TERSON, . Dtpt1t:y A.t1.orncy OeIit.ral .\ttomeys fot Detf::n.dmit~~
B:~¥~.:~< . __.
":>
St:;cretary. Youtl1 and l\ri.1l11 Cmrp.('t1onaJ Agency

By
Director, Caliti.>m Corrections

By" .kitx~-6i...)[d?k_.

~~!~)L A. DALY'

~ ....

(l1C.lir~ Cahf(ilT~ja B,.)~jr;1 ofl'rismi

Terms

!i .-.. -................-............-..... _.- -~:i'il:-i-"I';\'iEl)(-jR:i)Ek~' ik-"'i:.!~;;;-.;·\:i:;l' ·:(r-;-,"K:;i\;C'{i,i~ifT':-·"-·'--"·" .....................:.;-- -.-

:~

{;\ .~.JJ':~")(lIr L"t(+~ i..(~i.!

I

Case 2:94-cv-00671-LKK-GGH Document 1398 Filed 02/25/08 Page 43 of 293
LAWRENCE K. KARlTON Chief Jud~'."e.. 'Emelitu!l

Case 2:94-cv-00671-LKK-GGH Document 1398 Filed 02/25/08 Page 44 of 293
EXHIBIT A

Case 2:94-cv-00671-LKK-GGH Document 1398 Filed 02/25/08 Page 45 of 293

Valdivia Remedial Plan

Violation Occurs

Remedial 5anctfons-lf Appropriate (COPJSATCUJAiternate Placement)

Probable Cause DtfUtlllllnation Review/Case
Conference regardi'19 PC 30S6 'Hold

,. PCB Time starts 1st day after Notice and
~ns for 10 Bus days

Parolee Notices of Charges (Activity Report)!
fnterviewed end Provided Copies (Charges, BPT 1073, Notif;:e of Rrgbts)

Within 46 Hours of Hofd Placement
(If on WeekendIHol
no tater than next
Buslnessda
3 BUsiness Days of Hold Placement

I I
l I

COPI

or~ • Vi!>lation Report Submitted by Agent of Record r)..,.•., V!<!.~~on Rer~.R:viewed ~~n! Supervisor Rev Packet Reviewed by Parole Administrator <PAD)

*1~3 Bus Days

. 4 Bus Days

'-

" ...

Remedial Sanction
Case
Resolved

I Decentra'ized Revocation UnIt

, - - - - - --.-- - - - - - - - - - Revocation Packets Received - Data Entry (RSTS) """ ..... Attorneys Receive R$V\')(l..ation Packets

\
................... ~

and Consult wIth Parolee

5-6 Bus Days

I AcceptsJ COPleTSI . NIC/'
\ Remedial i Sanctions!
l Dismiss
i
'---r

RTC Assessment by DC or PAD Offers Oommunicated to Attorneys
Expedited Hearing with Offer of Proof
Probable Cause Jiearing DC or PA.D/Attorney/Parolee
ExcutpatofYfDoclime,nlary Evidence Presented

R4Jjection of offer
{Witness Selection/Hearing Location/ADA Review}

Revocation Hearing

LI'" On or Before 35C;dendar Days of Hold PJacemeot

Case 2:94-cv-00671-LKK-GGH Document 1398 Filed 02/25/08 Page 46 of 293
'. \
VALDIVIA REMEDIAL PLAN POLICY OUTLINE

VIOLATION OCCURS
There are a myriad of circumstances under which a Parolee can violate his or
her conditions ofparole. There are approximately 100,000 parole violations .
. referred to the Board of Prison Terms each calendar year.
of Currently about 60010 of the reported violations are the result arrests by
local law enforcement. Ofthat 6~% arrested by local law enforcement, many are chatged in the local jurisdictions for crimes against the state, while
others are not charged locally but instead referred to the Board' of Prison' Terms for administrative disposition.

The remaining 40% are arrests that involve the Parole officer, which may
to also result in local charges or referral the Board of Prison Terms for
administrative disposition.

.

.

The average parole violator's term in prison is five and one half months.

Approximately 66% of the cases referred to the Board ofPrlson Terms are
resolved prior to the revocation hearing. Last year, the Board of Prison
Terms conducted approximately 37,000 revocation hearings.

REMEDIAL SANCTIONS

As part of the overall reform ofthe revocation process, the ~arole and
Conununity Services Division ofthe Department of Corrections will begin
using remedial sanctions/community based treatment placement in January of 2004.

Some of the remedial sanctions/commWlity based treatment programs that will be used are the Substance Abuse Treatment Control Units, Electronic
Monitoring, Self-Help Outpatient/aftercare programs, and alternative p]acement in structured and supervised environments.

Case 2:94-cv-00671-LKK-GGH Document 1398 Filed 02/25/08 Page 47 of 293
'. ~
These remedial sanctions are not considered violations of parole because participation in the remedial sanctions program is voluntary and participation in the remedial sanctions program will not make the parolee presumptively ineligible for discharge at 13 months.
The goal is to reduce the number ofreturns to prison for violations of parole
by up to 10% in 2004 and by up to 30% by 2006.
IF REMEDIAL SAN~ONS ARE DEl!iMED INAPPROPRIATE AND
A PAROLE HOLD IS PLACED ON 1'1Di PAROLEE, A PROBABLE
CAUSE DETERMlNATIONIREYQiW WILL TAKE PLACE WI'IDIN
48 HOURS OF THE HOLD AND IF THE BOLD IS PLACED ON A
WEEKEND ORB9LIDAY~ THE PROBABLE CAUSE REVIEW WILL BE CONDUCTED NO LATER THAN THE NEXT BUSINESS DAY FOLI~OWlNG THE BOLD BEING PLACED.
Although this probable cause review for parolees is not required under any of the current, relevant case law, it is being put in place in an attempt to take a second look at those individuals who have been placed into custody to determine if the "present danger to public safety» concern still exists or jf remedial sanctions/community based treatment is possible at this juncture.
As an example, a parolee who was strung out on dope may have "dried out') sufficiently that he or she is no longer a danger to him or herself or the public and may be. an appropriate candidate for community based treatment in a structured) supervised program.
Under such a scenario, the parolee would be released to a .community based treatmel1;t program with the understanding that a specific condition ofhis or her release is the completion ofthe program and any other special conditions of parole that the Parole Agent deems appropriate.
Current regUlation and case law require any special conditions of parole "to
have a nexus to the paroleest commitment offense or behavior~
2

Case 2:94-cv-00671-LKK-GGH Document 1398 Filed 02/25/08 Page 48 of 293
••• >.
PAROLEE IS GIVEN ACTUAL WRfITEN NOTICE OF CHARGES
w:rrB A SHORT FACTUAL'SUMMARY OF TilE BERAVIOR; THE
NOTICE OF RIGHTS REGARDING THE REVOCATION
r.ROCESS; ANi> TIlE BPT 1073 ADA DETERMINATION IS MADE
VIA A FACE TO FACE INTERVIEW WITBIN 3 BUSINESS DAYS OF THE BOLD BEING PLACED~
Ifthe remedial sanctions are deemed inappropriate, Within three business
days ofthe hold being placed, the parolee shall be served actual notice ofthe charges against him or her accomp~ied by a short factual summary of the behavior; he or she shall be interviewed; an a ADA detennination shaH be made; the BPT fonn 1073 {)hall be completed, and parolee shall be provided with a written notice of rights regarding the revocation process and time frames. (Hereinafter referred to as "notice.")
The principles of "effective commtmication'~ apply 10 the revocation process. ADA accommodation must be provided "ror all parolees when necessary. In addition, aIJ foans shall be printed in Spanish and English and a Spanish speaking person shaH be available to interpret and ex.plain the fonns to the parolee where necessary.
TBEPROBABLECAUSE~GSHALLBECONDUCTED
.WITHIN 10 BUSINEss DAyS FOLLOWING 1HE DATE OF
ACFUAL SERVICE OF THE NOTICE OF CHARGES, THE ADA
DETERMINATION, AND THE NOTICE OF RIGHTS.
Within the first 3 days after the parolee has been served with notice, the violation report must be completed and submitted 10 the Parole Unit supervisor.
On or before the fourth business day, the Unit Supervisor must review the report and: (1) d~tennine ifthere is sufficient basis for the revocation to go
forward; (2) determine if the report is accurate, complete, and contains the correct Title 15 violation sections; and (3) review the report and consider whether or not remedial sanctions/community based treatment is appropriate
in lieu of proceeding with referral to the Board of Prison Tenns with a recommendation that the parolee be returned to prison.
3

Case 2:94-cv-00671-LKK-GGH Document 1398 Filed 02/25/08 Page 49 of 293
J_
On or before the 41h business day, the revocation packet is reviewed by the
or Parole Administrator to determine whether not there is a sufficient basis
for the case to move forward and whether or not Remedial Sanctions/Community Based Treatment is appropriate at this juncture.
On or before the 5th business day, the revocation packet is forwarded to the decentral ized revocation unit where the parolee is being held.
On or before the 6th business day, the parolee (including non~Annstrong
class members) shall be appointed an attorney and the attorney shall be
provided with a copy of the revocation packet, which shaH contain it signed
copy ofthe notice of charges, notice of revocation ofrights, and a completed BPT 1073.
Attorney shall meet with the Parolee, provide the parolee with a copy of the revocation packet, and shaH communicate any offer or offers made by the .Board ofPrison Terms Deputy Commissioner/Parole Administrator prior to the probable cause hearing.
In the event the parolee can make a sufficient offer of proof of a complete defense to the charges the Board ofPrison Terms Deputy CommissionerlParole Administrator, an expedited Probable Cause Hearing with Documentary andlor live testimony shall be scheduled. As an examplet ifthe parole has uncontroverted documentary evidence that he or she was in Santa Ritajail when this violation allegedly occurred in Los Angeles, parolee shall be allowed to present ~uch evidence at an expedited probable cause hearing between the 6th and 8th business day or at the earliest time possible thereafter ifparolee is unable to produce such evidence by the 6tl! to 8th day.
On or before the 6th to Slh business day, a return to custody assessment (an' offer) is made by the Deputy CommissionerlParole Administrator, and the offer shall be communicated to the paroleets attorney.
On or before the loth business day, a Probable Cause Hearing shall be held with the Deputy CommissionerlParole Administrator, the parolee, and
parolee)s attorney.
4
I

Case 2:94-cv-00671-LKK-GGH Document 1398 Filed 02/25/08 Page 50 of 293
· .

The Deputy CommissionerlParole Administrator conducting the hearing shall be the same Deputy CommissionerlParole Administrator who made the
return to custody assessment (offer) where practicable.

Parolee shall be permitted to present docUmentary evidence and hearsay testimony by way of offer of proof through his or her attorney in mitigation or as a partial or complete defense to the charges and/or the proposed disposition.

The Deputy CommissionerlParole Administrator shall'have the complete

range of options to resolve the case. (Continue on parole, credit for time

served, release from custody with pending charges, remedial

'

sanctions/community based treatment, reduce the offer.downward, dismiss

some or all ofthe charges)

The Deputy Commissioner shall not have the authority to adjust the retmn to custody assessment upward at or during the probable cause heari.ng.

Parolee shall have the right to waive time as to any of these hearing time cons~aints with or without good cause.

Attorney shall have the right to a continuance upon the showing of good cause in the absence of his or her client's consent in cases ofemergency or illness or upon such other showing that the Deputy CommissionerIParo1e Administrator can make a finding of good cause.

There shall be a written record ofthis proceeding and the basis for any decisions made therein.

It is not necessary that the Probable Cause H~aring be audio/video recorded:'

Ifat the conclusion of the probable cause hearing, the parolee has rejected

the offer, parolee shall provide the Deputy CommissionerlParole

.

Administrator with a list of witnesses he or she would like lo call at the

revocation hearing. The location oftbe hearing shall be determined (within

50 miles of the violation), and the Deputy CommissionerlParole

Administrator shall make an independent ADA accommodation

determination.

5

Case 2:94-cv-00671-LKK-GGH Document 1398 Filed 02/25/08 Page 51 of 293 REVOCATION HEARING The revocation hearing shall be held at the earliest possible time and in no case later than 35 calendaf days after the parole hold has been placed.
6
I

Case 2:94-cv-00671-LKK-GGH Document 1398 Filed 02/25/08 Page 52 of 293

· ..
DECLABATI0~ OF SERVICE BY u.s. MAlL

Case Name: JERRY VALDIVIA, et a). v. GRAY DAVIS~ et al.

No.: USDC E.D. #CIV-S~94~71 LKK GGB P

I declare:

I am employed in the Office ofthe Attorney General, which is the office of a member ofthe California State Bar which member's direction this service is made. J am 18 years of age and older and not a party to this matter. I am familiar with the; business practice at the Office of the Attorney General for collection and processing of correspondence for mailing with the United States Postal Service. In accordance with that pJactice. correspondence placed in the internal mail collection system at the Office ofthe Attorney General is deposited with the United States
Postal Service that same day in the ordinary course of business.

On August 21. 2003. I served the attached

DEFENDANTS' REVISED REMEDIAL PLAN

by placing a true copy thereof enclosed in a sealed envelope wi1h postage thereon fully prepaid, in the internal mail coJlection system at the Office ofthe Attorney General at 455 Golden Gate Av~ue> San Francisco, California 94102~7004, addressed as follows:

Michael W. BieD, Esq. RDHa. BieD &. Asaro 155 Montgomery Street. Silo Floor Sao Ji'rudsco, CA 94104

AJe%ander L. Landon
Law Offices of Alex Landon
2441 Fourijl Avenue
SaD Diego, CA 92101

Donald Specter
Prison Law om.:e
Geoeral Delivery
SaD QuentiDt CA 94964
Stephen J. PerreJJo. Jr.
P.O. BQx880738
Slin DlflI!'o. CA 9116&

Karen Kennard KrIsten A. Palumbo Bfnab2111 McCutchen LLP Tbree Embare~dero Center San F'randsco, CA 94111-4067

I d'!.'l:!?~ 1.!.'1.dt!!!' p"'n~!~1 of r ..!jl.1~Y l'l'n.r1~r in. . l'!l\'lt~ nfth.... !'!tM''' nf'l"'"l;f"",;,, tn.. r"TP2n;Tl2 iC! tn.....
and correct and that this declaration was executed on August 21, 2003, at San Francisco, California.

Case 2:94-cv-00671-LKK-GGH Document 1398 Filed 02/25/08 Page 53 of 293

DECLARATION OF SERVICE BY U.S. MAIL

Case Name: Jerry Valdivia, et al. v. Gray Davis, et nl.

No,:
r declare:

USDC, Eastern District of California, Case No. CIV-S-94-0671 LKK GGH P

I am employed in the Office of the Attorney General, which is the office of a member of the Ca1ifomia State Bar which member's direction this service is made. I am 18 years of age and older and not a. party to this matter. Tam familiar with the business practice at the Office of the Attorney General for collection and processing of correspondence for mailing with the United States Postal Service. In accordance with that practice, correspondence placed in the internal mail collection system at the Office ofthe Attorney General is deposited with the United States Postal Service that same day in the ordinary course of business.

On November 18, 2003, I served the attached

STIPULATED ORDER FOR PERMANENT INJUNCTIVE RELIEF

by placing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid, in the internal mail collection system at the Office of the Attorney General at 1300 I Street, P.O. Box 944255, Sacramento, California 94244-2550, addressed as follows:

Karen L. Kennard Bingham McCutcben LLP
Three Embarcadero Center Sao Francisco, CA 941 ~ 1-4067

Alex Landon Law Offices of Alex Landon 2442 Fourth Avenue Sao Diego, CA 92101

Donald Specter PrisoD Law Office General Delivery San Quentin, CA 94964

Stephen J. Perrello, Jr. Law Offices of Stephen J. Perello P.O. Box 880738 SaD Diego, CA 92168

Micbael W. Bien Rosen, Bien & Asaro 155 Montgomery Street, 81b Floor San Francisco, CA 94104

I declare under penalty of peIjury under the laws ofthe State of Califomia the foregoing is true and correct and that this declaration was executed on November 18, 2003, at Sacramento,
California.

I 00152~2....pd

R. Wells Declarant

lsi
Signature

Case 2:94-cv-00671-LKK-GGH Document 1398 Filed 02/25/08 Page 54 of 293
EXHIBIT B
Reporter's Transcript - 12/14/07 Hearing

Case 2:94-cv-00671-LKK-GGH Document 1398 Filed 02/25/08 Page 55 of 293

1

UNITED STATES DISTRICT COURT

2

EASTERN DISTRICT OF CALIFORNIA

3

OFFICE OF THE SPECIAL MASTER

4

5 JERRY VALDIVIA, et al.,

6

PLAINTIFF,

7

VS.

8 ARNOLD SCHWARZENEGGER, et al.,

9

DEFENDANT.

10

) ) ) ) )NO. Civ. )S-94-0671 LKK-GGH ) ) ) )

11

12

13

14

HEARING, taken on behalf of the SPECIAL MASTER at

15 315 MONTGOMERY STREET, 10TH FLOOR, SAN FRANCISCO,

16 CALIFORNIA, commencing at 10 a.m., FRIDAY, DECEMBER 14,

17 2007, before CARRIE E. SEARS, Certified Shorthand

18 No. 13200; and before LINDA VACCAREZZA, RPR, CRP,

19 Certified Shorthand Reporter No. 10201.

20

21

22

23

24

25

1

IBARKLEY

ICOlllt Reporte,.

Case 2:94-cv-00671-LKK-GGH Document 1398 Filed 02/25/08 Page 56 of 293

1 APPEARANCES:

2

3

4 FOR THE PLAINTIFF:

5

ROSEN, BIEN, & GALVAN

Attorneys at Law

6

315 MONTGOMERY STREET, 10TH FLOOR

SAN FRANCISCO, CALIFORNIA 94104

7

BY: SHIRLEY HUEY

ERNEST GALVAN

8

LOREN STEWART

9

10 FOR THE DEFENDANTS:

11

DEPARTMENT OF JUSTICE

OFFICE OF THE ATTORNEY GENERAL

12

Supervising Deputy Attorney General

13001 I STREET, SUITE 1101

13

P.O. BOX 944255

SACRAMENTO, CALIFORNIA 94244

14

BY: VICKIE WHITNEY

JESSICA DEVENCENZI

15

DEPARTMENT OF CORRECTIONS & REHABILITATION

16

BOARD OF PAROLE HEARINGS

Associate Chief Deputy Commissioner

17

POST OFFICE BOX 4036

SACRAMENTO, CALIFORNIA 95812

18

BY: PATRICIA CASSADY

19

PRESIDING:

20

CHASE RIVELAND

21

RIVELAND ASSOCIATES

SPECIAL MASTER

22

P.O. BOX 367

DEER HARBOR, WASHINGTON 98243

23

BY: CHASE RIVELAND

24

VIRGINIA L. MORRISON

COLLABORATION SPECIALISTS

25

Deputy Special Master

2

IBARKLEY

ICourt Reporters

Case 2:94-cv-00671-LKK-GGH Document 1398 Filed 02/25/08 Page 57 of 293

1

KENTFIELD, CALIFORNIA 94904

BY: VIRGINIA L. MORRISON, JD

2

3

ALSO PRESENT:

4

STATE OF CALIFORNIA

DEPARTMENT OF CORRECTIONS & REHABILITATION

5

COURT COMPLIANCE LEGAL TEAM

OFFICE OF LEGAL AFFAIRS

6

Chief

1515 K STREET, SUITE 520

7

SACRAMENTO, CALIFORNIA 95814

BY: KATHERINE NELSON

8

DEPARTMENT OF CORRECTIONS & REHABILITATION

9

OFFICE OF LEGAL AFFAIRS

Litigation Liaison

10

1515 K STREET, SUITE 520

SACRAMENTO, CALIFORNIA 95814

11

BY: DANIEL JOHN CARVO

12

ALSO PRESENT:

13

DYLAN SULLIVAN

SUJEAN YOUNGER

14

15

16

17 ---000---
18

19

20

21

22

23

24

25

3

IBARKLEY

ICourt R:porters

Case 2:94-cv-00671-LKK-GGH Document 1398 Filed 02/25/08 Page 58 of 293

1

E X H I BIT S

2

3

4

5

PAGE

6 1 - Notice of Motion and Motion to Enforce Paragraph III

7

24 of the Valdivia Permanent Injunction

8 2 - Defendants' Opposition to Plaintiffs' Motion to

9

Enforce Paragraph 24 of the Valdivia Permanent

10

Injunction

III

11 3- Plaintiffs' Reply in Support of Plaintiffs' Motion

12

To Enforce Paragraph 24 of the Valdivia Permanent

13

Injunction

III

14 4 - Defendants' Response to Plaintiffs' Reply to

15

Opposition to Motion to Enforce Paragraph 24 of

16

The Valdivia Permanent Injunction

III

17

18

19

20

---000---

21

22

23

24

25

4

IBARKLEY

ICourt Reporters

Case 2:94-cv-00671-LKK-GGH Document 1398 Filed 02/25/08 Page 59 of 293

1

SAN FRANCISCO, CA; FRIDAY, DECEMBER 14, 2007

2

10:00 a.m.

3

4

TRANSCRIPT OF HEARING PROCEEDING

5

6

SPECIAL MASTER RIVELAND: We're meeting today

7 after several starts and stops. The parties agreed to

8 that we should hold this particular hearing, fact-finding

9 hearing back in August after it became apparent that we

10 had -- there was some disputes between parties around

11 Comito issues. At that time there were initial hearing

12 and briefings scheduled -- initially to have hearings in

13 October and subsequently with the request of our team, the

14 special master team, the request of the plaintiffs and

15 subsequently the request of the, excuse me -- the request

16 of the defendants and subsequently the plaintiffs. We put

17 the hearing off until today with a new schedule that would

18 suggest that we would have a report to the court no later

19 than 30 days from today, could be earlier, but no later

20 than.

21

The particular hearing was referenced in the

22 original Order of Reference in paragraph Roman Numeral IV

23 E and subsequently there was an agreement as to the

as

24 to the process that would be involved prior to that

25 hearing in terms of briefings from plaintiffs and

5

IBARKLEYI

I Court Reporter. I

Case 2:94-cv-00671-LKK-GGH Document 1398 Filed 02/25/08 Page 60 of 293

1 defendants and the subsequent time frames after our report

2 is filed in court that there would be the parties would

3 have 20 days after service to respond to our report to the

4 court and, subsequent to that, 10 days to have replies or

5 objections to the reports of the plaintiffs and

6 defendants. And it indicated in that agreement that at

7 that time, the parties will indicate if they wish that

8 their oral argument is requested on either side.

9

What I'd eventually like to get to is probably

10 use -- and we have a question from Ginny first, but I'd

11 initially like to start off looking at the plaintiffs

12 three major areas of statement of dispute. We'd like to

13 take from either the defendants or the plaintiffs and

14 taken that only because of -- I think the three are stated

15 fairly succinctly and I suspect are the primary issues

16 that we should be addressing, and in fact, if you look at

17 the agreement indicated that there would be no necessity

18 for discovery or testimony, and so basically, I think

19 we're doing today is Ginny Morrison and I have both

20 reviewed all of the submissions from plaintiffs and

21 defendants. We have a variety of questions we'd like to

22 get through today for clarification.

23

Ginny, you had a question I think that you wanted

24 to start off with.

25

DEPUTY SPECIAL MASTER MORRISON: Sure. Folks

6

IBARKLEY

ICou,t Repo,fe,s

Case 2:94-cv-00671-LKK-GGH Document 1398 Filed 02/25/08 Page 61 of 293

1 representing defendants, I wonder if you would describe

2 how the issue of the treatment of hearsay exceptions

3 arose, just in practical terms.

4

MS. WHITNEY: In the context of the Valdivia

5 case?

6

DEPUTY SPECIAL MASTER MORRISON: Uh-huh.

7

MS. WHITNEY: I think that obviously pre-dates my

8 time. You think back to, I believe December of 2006, a

9 letter from Ben Rice at our office letting -- I think

10 advising the plaintiffs that there was a position taken at

11 the time that hearsay exceptions would be grounds to not

12 have to do Comito balancing based on United States v.

13 Hall, 9th circuit case; we've all become quite familiar

14 with now. And so I -- that's the extent of the knowledge

15 that I have about how the issue arose was as a result of

16 that letter and I think obviously plaintiffs' counsel has

17 some issues with some of the statements that that should

18 be the correction that we make.

19

DEPUTY SPECIAL MASTER MORRISON: Sure. And so

20

there was dispute that followed from that and

21 I'm thinking about preceding the letter, how did it come

22 up

that you wanted to consider a change?

23

MS. WHITNEY: I don't know.

24

DEPUTY SPECIAL MASTER MORRISON: Okay.

25

SPECIAL MASTER RIVELAND: So--

7

IBARKLEY

ICourt Report.r:,;

Case 2:94-cv-00671-LKK-GGH Document 1398 Filed 02/25/08 Page 62 of 293

1

MR. STEWART: If I may interject just to clarify

2 for the record. I think in Ernie Galvan's reply

3 declaration, I think he said that Mr. Rice mentioned this

4 to him. I don't think it was a letter at the time. My

5 understanding of it was the December 7th meeting when Ben

6 Rice mentioned something to Ernie Galvan to this effect,

7 but I think the papers clarify just so the record's clear.

8

MS. WHITNEY: I thought there was a letter as

9 well from Ben Rice that mentioned that. It might be

10 that's the case. I know it did originally come up

11 verbally.

12

DEPUTY SPECIAL MASTER MORRISON: In a

13 conversation. Okay. And then has --

14

MS. CASSADY: It was a result of the Hall case.

15 Everybody was waiting and it wasn't really a change.

16 Comito was kind of a disputed issue right from the gate on

17 how it would be applied and defendants had been talking

18 about the use of exceptions. The Hall case was kind of

19 pending at the time, so everybody was waiting for the

20 decision to come down.

21

DEPUTY SPECIAL MASTER MORRISON: Okay. All

22 right. So when it came down, it came to your attention.

23 You started talking about how does it apply. Okay.

24

And has your reading of how it applies been

25 disseminated to the field?

8

IBARKLEY

I Court Reporters

Case 2:94-cv-00671-LKK-GGH Document 1398 Filed 02/25/08 Page 63 of 293

1

MS. WHITNEY: It's been discussed, but it hasn't

2 been implemented as a

icy --

3

DEPUTY SPECIAL MASTER MORRISON: Okay.

4

MS. WHITNEY: -- and an approach that should be

5 taken at this time.

6

DEPUTY SPECIAL MASTER MORRISON: Okay. Thank

7 you.

8

SPECIAL MASTER RIVELAND: I must say that I was

9 telling Ginny this morning that having read a lot of this

10 stuff, not only your briefs, but cases where non-attorneys

11 trying to

all this out is rather challenging and

12 it -- I think the one thing that's probably guaranteed is

13 that no matter who resolves the definitions of Comito and

14 the standards whether it's as a result of our report or a

15 court decision or whatever that this is big challenges in

16 the future for training and education and whatever, just

17 to try to

compliance with whatever that definition is,

18 but it

is an interesting subject.

19

If you could turn to page three of the

20

iffs' notice of motion and motion to enforce

21

24, which was dated --

22

MR. STEWART: I think it was October 3rd.

23

SPECIAL MASTER RIVELAND: October 3rd 2007, page

24 three, line 19. In there it says, "First under the United

25 States v. Comito in a hearing to which the rules of

9

Case 2:94-cv-00671-LKK-GGH Document 1398 Filed 02/25/08 Page 64 of 293

1 evidence do not apply, may California return a parolee to

2 prison based on -- parolee to prison based on out of court

3 statements from persons the parolee never gets to confront

4 or cross-examine merely because the statement might fall

5 within a state or federal hearsay exception."

6

I think that generally outlines an issue, an

7 issue in dispute. I think -- help me out little bit and I

8 probably need more help than the average person hearing

9 this. If -- first of all, a little confusing to me is is

10 there agreement on what are state and federal hearsay

11 exceptions between the parties?

12

MR. STEWART: I think, I would address it first.

13 I think there is agreement. I haven't seen in our papers

14 or in our meet and confers disagreement on what are state

15 or federal hearsay exceptions. There might be

16 disagreement if we were to sort of pare that down slightly

17 to a category of well established state or federal hearsay

18 exceptions. We're never discussed that in any

19 particularity to my knowledge, but I think generally the

20 hearsay exceptions set forth in the federal rules of

21 evidence, 803 and 804, and in the California Evidence Code

22 therein hearsay exceptions I think we would agree on the

23 hearsay exceptions to which we're referring.

24

SPECIAL MASTER RIVELAND: Defendants, you agree?

25

MS. WHITNEY: Yes, we would agree and Chase, to

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1 be honest, I'm not sure if we funnel that down to what are

2 long-standing

exceptions, I'm not sure we would

3 have any disagreements to be honest. I think there are

4 some cases that really illuminate that issue. For

5 example; one example would be the business records

6 exception and one case talks about excited utterances,

7 things of that nature that I'm not sure that if we do

8 funnel it down to what may be long-standing hearsay

9 exceptions that we would have any disagreement. I think

10 there are some cases that talk about that. I'm not sure

11 that there's a full discussion throughout the cases as to

12 what those would be, but I think there are some core ones

13 that we could very easily agree upon, yes.

14

SPECIAL MASTER RIVELAND: If the -- let me just

15 take two of those that are probably common in parole

16 revocation hearings and police records. Where do the

17 parties stand on the admission of police records as being

18 part or not part of exemptions?

19

MR. STEWART: I think

20

MS. WHITNEY: They're not.

21

MR. STEWART: I think we're in agreement that

22 they are not a part of the exceptions. Plaintiffs'

23 position is certainly that they are not part of

24 exceptions.

25

MS. WHITNEY: There's no disagreement about that.

11

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1

SPECIAL MASTER RIVELAND: And would be subject to

2 balancing then?

3

MS. WHITNEY: Correct.

4

SPECIAL MASTER RIVELAND: In all instances?

5

MS. WHITNEY: Correct.

6

SPECIAL MASTER RIVELAND: And parole records?

7

MS. WHITNEY: Parole records we would submit that

8 on the cases and such that so long again as there's an

9 establishment that

are business records kept in the

10 ordinary course of the business that those are within a

11 long-standing hearsay exception. There may be portions of

12 that that may be dissectible, but as an overall premise, I

13 think the case law supports the fact that if, you know,

14 there are cases that talk about one parole agent who

15 testifies about things out of another parole agents'

16 records and that those things are admissible as a

17 long-standing exception to the hearsay rule. So I think

18 that the defendants' position would be that those records

19 would be admissible.

20

SPECIAL MASTER RIVELAND: Before you comment

21 Loren, parole violation

?

22

MS. WHITNEY: No.

23

DEPUTY SPECIAL MASTER MORRISON: No what?

24

MS. WHITNEY: We thought you were --

25

SPECIAL MASTER RIVELAND: We're just using one

12

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1 example now at this point.

2

MS. CASSADY: She was discussing the record of

3 supervision versus the parole violation.

4

SPECIAL MASTER RIVELAND: The violation report

5 would be equitable to a police report?

6

MS. WHITNEY: Yes.

7

SPECIAL MASTER RIVELAND: And subject to

8 balancing?

9

MS. WHITNEY: Correct.

10

SPECIAL MASTER RIVELAND: And the chronological

11 reporting?

12

MS. CASSADY: Record of supervision, is that --

13

SPECIAL MASTER RIVELAND: Right.

14

MS. WHITNEY: I think it would depend on what

15 it's being used for. If it's a business record and you

16 can establish that exception, then yes, it is an

17

ion -- hearsay exception and it comes in. You know,

18 there are other things that it could be used for that

19 isn't -- perhaps not necessarily defined as hearsay, which

20 is the truth of the matter asserted if I'm just trying to

21 show some dates or something that takes it out of being

22

and there is no balancing required in that

23 either.

24

SPECIAL MASTER RIVELAND: Okay. What I'm trying

25 to find is where are we at on points of agreement or

13

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1 disagreements.

2

MR. STEWART: I'd like to respond. This is

3 definitely where plaintiffs and defendants part company.

4 It's our position that parole records, including records

5 of supervision, chronological records, that these

6 supervision tools are tools that are taken in

7 contemplation of use for prosecution. That's not to say

8 criminal prosecution, but that is a document prepared for

9 revocation because the business records hearsay exceptions

10 is predicated on notions of reliability for records kept

11 in the ordinary course of business, that is, a ledger kept

12 by an accountant in a business office every single day and

13 then it might show that, oh, you know, let's say a parolee

14 was in the state of Chicago and he rented a car -- this is

15 a classic case -- he rented a car in Chicago and there was

16 a receipt with his signature on it in Chicago when he was

17 under supervision in California and had no permission to

18 leave. That's the business record exception. It was a

19 record of -- that Hertz kept in the ordinary course of

20 business and that record shows that the parolee was out of

21 state and in violation of the terms of his parole.

22

By contrast, these records of supervision are

23 maintained for purposes of finding violations as to that

24 particular parolee and, of course, supervising the

25 parolee, making a record of, a positive record of

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1 supervision where that's the case, but I would dispute

2 defendants characterization of these -- both the

3 characterization of parole records as business records,

4 but also the cases to which Ms. Whitney alludes don't

5 explicitly say this is a business record exception.

6 Perhaps they gain some level of reliability.

7

To not speak in generalities, I'm talking about

8 the u.s. v. Miller case; a 1975 case on the 9th circuit

9 talking about Prellwitz, the 7th circuit case on which

10 defendants relied; and in those cases, the court did admit

11 particular hearsay testimony. In both cases, it was an

12 agent testifying to a record of supervision and the agent

13 was not the agent of record who initially made the records

14 of supervisions. The confrontation issue was you -- the

15 agent of record who recorded the alleged violations wasn't

16 there to be confronted, but in those cases, those two

17 courts did allow the particular records of supervision in

18 to show violations, but it was not explicitly under a

19 business records hearsay exception rubric and to the

20 extent that we're even talking about hearsay exceptions

21 and their place in parole revocation, I mean, plaintiffs

22 would contend that again this is just a little piece of

23 the Comito balancing. This is not a per se admissibility

24 question.

25

SPECIAL MASTER RIVELAND: Just one initial

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1 comment is that Mayor Dailey would be

to know it's

2 not the state of Chicago.

3

Defendants have any reaction on that?

4

MS. WHITNEY: Yes. I think the -- while some of

5 the cases may not specifically state a business records

6 exception, there are also equally cases that do say a

7 business records hearsay exception applies to parole

8 supervisory reports like that.

9

Ultimately, the point being out of Prellwitz, for

10 example, which is a case that we

on, which is a case

11 that's relied on by U.S. v. Simmons in the 9th circuit.

12 It talks about it -- it describes it in the terms and what

13 we call the "buzz" words -- sorry, I'm not meaning to

14 educate you here, but the business records exception has

15 certain sort of "buzz" words that have to be used to

16 establish that it falls within that exception and those

17 "buzz" words are all mentioned in the Prellwitz case and

18 any other case that really talks about it, including U.S.

19 v. Martin, where they talk about even urinalysis reports

20 and such. There are things that you have to establish for

21 it to fall within that exception and so if it doesn't

22

fically say "business records exception," the "buzz"

23 words are there and that's exactly what they're talking

24 about. And when Prellwitz -- the court in Prellwitz

25 admitted those records, it did not do a balancing because

16

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1 they were within a hearsay exception which effectively is

2 the business records exception.

3

When a parole agent is taking down and preparing

4 a supervisory record, it is what would be a classic

5 exception under the business record's rule because it is

6 something kept in the ordinary course of business; it is

7 something they should be doing within their scope of their

8 business; there's reliability inherently established

9 because of that and because Congress obviously creating

10 these rules of evidence and exceptions and the judiciary,

11 the courts, have already measured and determined that

12 those

of records, when they fall within those

13 particular "buzz" words and requirements, establishes the

14 reliability and its admissibility in a sense is then

15 deemed to be good.

16

MR. STEWART: I'm going to respond. I'd like to

17 talk briefly about Prellwitz and Martin, the two cases

18 that my opponent mentions because I think they actually

19 illustrate the core of the problem here.

20

As I was reviewing all of the briefing, the

21 copious writing from both sides on this dispute, I

22 realized in some sense, we're talking past each other and

23 I think we might be missing the point. The point from the

24 Morrissey case is a conditional confrontation right. The

25 defendants are quick to point out that that conditional

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1 confrontation right is not absolute and in some

2 circumstances hearsay should come in and that proceedings

3 must be flexible. Absolutely, we don't dispute that.

4

The point, however, is that in different cases,

5 particular charges that might seem very reliable in one

6 circumstance might result in the admission of evidence,

7 but in other circumstances, that same charge with that

8 same evidence depending on the circumstances surrounding

9 the charge, shouldn't come in and that's precisely why

10 flexibility needs to be there. This balancing test that

11 needs to be in the discretion of the most knowledgeable

12 person who is the hearing officer.

13

The hearing officer needs to look at the evidence

14 before him or her to make this decision, and as to the

15 cases, the charges in Prellwitz involved -- Prellwitz was

16 an individual who was under -- what was then probation

17 before federal supervised release -- he had been reporting

18 dutifully for almost a year of a three-year term of

19 probation and then when Prellwitz stopped reporting in

20 around 1968 -- he had been released in '67 or had accepted

21 his probation terms in '67 -- he went running and he

22 disappeared for over five years, about five and a half

23 years from my calculation.

24

The question when he was later picked up on a

25 traffic stop was did he abscond parole supervision

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1 essentially, or in this case probation. What the

2 probation officer testified to in the hearing was the

3 initial probation officer who had made attempts to contact

4 Prellwitz before he absconded was no longer available, so

5 a new probation officer was then in the case and he said,

6 "Well, I've got this record of supervision."

7

In that case, if you were to look at it from a

8 balancing perspective, it's an easy decision for the

9 commissioner. The commissioner looks at it and says,

10 "What's the interst in confrontation here?" Well, you

11 know, probably pretty low. This document is pretty

12 reliable. The defendant hadn't yet called into question

13 the actual contents of the document and in that case, you

14 have the outcome where Prellwitz was found to have

15 violated his probation.

16

In contrast Martin, and Martin is a very

17 important case because again, reliability. In Martin

18 Martin was in Hawaii --

19

SPECIAL MASTER RIVELAND: Let me interrupt you

20 for just a moment.

21

MR. STEWART: Sure.

22

SPECIAL MASTER RIVELAND: We've read the briefs

23 so we could deal with you just elaborating on them.

24

MR. STEWART: Sure, sure. I'll make it shorter.

25 But with respect to Martin, it was urinalysis. There were

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1 two urinalysis tests from Hawaii that went to Menlo Park

2 PharmChem Laboratories.

3

SPECIAL MASTER RIVELAND: And was the tester that

4 was the problem?

5

MR. STEWART: Precisely. So Martin would be one

6 of these cases where it seems reliable and the 9th circuit

7 explicitly said in Martin, they said, no. Reliability is

8 not a catch-all. Nothing comes in completely because it's

9 reliable." In fact, what needs to happen is there needs

10 to be the balancing test and in Martin, in spite of its

11 apparent reliability on the surface, the court said no, it

12 shouldn't come in.

13

SPECIAL MASTER RIVELAND: Let me ask both sides

14 around that point.

15

Would you each give me your definition of

16 reliability. Well, I mean, there's a couple words in this

17 whole thing that become very critical in terms of how we

18 adapt something and reliability is certainly one of those

19 issues that on the base of it, would seem to be

20 clear and demanding; however, what the hell that is is a

21 little unclear.

22

DEPUTY SPECIAL MASTER MORRISON: Certainly

23

demanding we can all endorse. The clarity

, I

24 don't know if ya'll are prepared to answer.

25

MS. WHITNEY: Actually United States v. Williams,

20

Case 2:94-cv-00671-LKK-GGH Document 1398 Filed 02/25/08 Page 75 of 293

1 I think -- hold on. We have one. There's a case that

2 actually defines it.

3

SPECIAL MASTER RIVELAND: Actually, I'm not --

4 you don't need to track that too far. I'm more interested

5 in is there space for accommodation between the two

6 parties on whatever the definition may be. Is it simply

7 that there has to be a legal definition to it because

8 you're going to have a variety of people applying this

9 definition of reliability to a variety of decisions;

10 decision to balance or not; decision to, if balance,

11 whether to accept or not; and that definition of

12 reliability may not be simply the one that's found in a

13 case. It can't be a contradiction to them, but it could

14 be whatever the parties choose it to mean also.

15

MS. WHITNEY: I would say, Chase, that from a

16 certain perspective, I think you can have a somewhat

17 focused definition of reliability, but I think you have to

18 be careful not to restrict it too much because similarly

19 to a judge in a court, what is inherently reliable or has

20 a reliability connotation to it, is measured by the trier

21 of fact, be it a judge or in our case Deputy Commissioners

22 or whoever is -- in our case you.

23

But what is deemed to be reliable has to have

24 some flexibility for the trier of fact to exercise their

25 discretion and consider all of the circumstances that may

21

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Case 2:94-cv-00671-LKK-GGH Document 1398 Filed 02/25/08 Page 76 of 293

1 be in a

case in front of them. If we become

2 too constrained in what that definition is, then I think

3 we are going to run into some problems in removing the

4 abili for somebody to exercise discretion. We're going

5 to fall outside of what Morrissey and Gagnon talk about in

6 terms of the flexibility that should be afforded in the

7 process. So I think that we should be able to arrive -- I

8 would think that we should be able to arrive at a common

9 definition, but I think we just have to be careful that we

10 don't become too restrictive with those concerns in mind.

11

MR. STEWART: I would very much agree with that

12 actually. I think the question of reliability of evidence

13 does need to some extent to be determined from the context

14 in which it's presented and the facts and circumstances.

15 Again this is the Comitos and Martins, Walker, Simmons;

16 the facts and circumstances surrounding the particular

17 evidence is going to color its reliability whether very

18 reI

or whether it might be called into question.

19

SPECIAL MASTER RIVELAND: And so you would agree,

20 if I hear you correctly Loren, with Vickie in terms of

21 there needs to be some flexibility in the part of the

22 decision maker as to determining that, assuming that

23 there's some general definition of the word reliabil

24

MR. STEWART: Yeah, it needs to be somewhat in

25 the discretion of the decision maker.

22

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1

SPECIAL MASTER RIVELAND: Okay. I'm probably

2 going to have -- as you can see, all my tabs are questions

3 I have, but they don't all fit neatly and are following

4 this progression.

5

Let me move on to the second -- and green and

6 yellow make no difference. One is not more important than

7 the other I might add.

8

MS. CASSADY: Just a different day.

9

SPECIAL MASTER RlVELAND: Returning to the

10

ffs' document on line 23, page three. It says,

11 "Second, under United States v. Comito, can the

of

12 confrontation be excused if the state lines up several

13 un-confronted hearsay statements next to one another and

14 allows each statement to corroborate its neighbors even

15 though all are from witnesses who are never confronted or

16 cross-examined by the parolee."

17

The question I would have to that would be

18 initially to the defendants and the -- there were a couple

19 of examples I guess in the submissions, but the question

20 would be that if you have two or more instances of hearsay

21 that are -- let me start out with an example of the sole

22 production of evidence that would try to support

23 revocation. Is it your opinion that it is sufficient?

24

MS. WHITNEY: I think it again depends somewhat

25 on the circumstances. I think inherent within -- even if

23

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1 you were to do the Comito balancing and you're looking at

2 a particular piece of hearsay and I think a prime example

3 of that is in the Hall case.

4

In Hall when the court -- the 9th circuit was

5 looking at a particular piece of evidence, in order to

6 even do the balancing, what they do is rely on or consider

7 what other evidence there was that may corroborate i.e.

8 give some reliability to the piece of hearsay that was

9 under consideration. So I think that it is one of those

10 things that can occur and it's going to depend on the

11 circumstance of the case and I think there's a distinction

12 to be drawn between admissibility of the evidence and the

13 weight it should be given.

14

If a trier of fact is looking at a piece of

15 evidence that -- to assess its admissibility, they can

16 consider the circumstances surrounding it and that is --

17 includes other pieces of evidence, other testimony, other

18 documents that may be out there that tend to give it some

19 indicia of reliability. And even in Hall, that's what the

20 9th circuit did. It did look to other pieces of evidence,

21 which included other pieces of hearsay evidence to

22 corroborate a piece of hearsay. So the defendants'

23 position would be that, again, considering the

24 circumstances, that it might be appropriate to be able to

25 look at other pieces of hearsay to see if they all match

24

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1 up with each other.

2

SPECIAL MASTER RIVELAND: If you took -- let's

3 say there were three and I apply the balancing act to all

4 three and I find them all not to be -- each independently

5 not to be admissible, are you then saying but if I put

6 them together, I could find admission, find them to be

7 admissible?

8

MS. WHITNEY: I think still you could find them

9 to be admissible, but depending on the circumstances.

10 Again, if we're talking about hearsay that doesn't fall

11 within a hearsay exception. It's all going to be

12 dependent on sort of the whole picture. Again,

13 recognizing that in parole revocation hearings, you can

14 have a lesser standard to look at, lesser procedures, but

15 if you're talking about lining up three pieces of hearsay,

16 if the trier of fact assess that, you know, if one

17 is just completely inconsistent with another and they're

18 all at cross purposes then quite clearly, none of them

19 should be admissible because they're not -- there's no

20 establishment of indicia of reliability and if you're

21 talking about those three pieces of evidence in the

22 context of them all being hearsay not subject to any

23

ion, the Comito balancing should be occurring

24 frankly. And in that Comito balancing, as part of those

25 cons

, you're going to look at both sides of the

25

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1 scale in a situation where you've got three pieces of

2 hearsay that are not subject to an exception.

3

SPECIAL MASTER RIVELAND: But would I not have to

4 do the balancing analysis on each one independently first?

5

MS. WHITNEY: You know, I think in a perfect

6 world, you would see that, but I don't think that's a

7 realistic scenario in the context of even a court

8 proceeding because often times the judge will admit a

9 piece of evidence conditionally to somebody tying it up or

10 corroborating it.

11

Again, this is a distinction between admitting it

12 and the weight that it's given. If you're saying

13 conditionally I'm going to admit this evidence, I'm going

14 to hold off ruling on the objection until I see what else

15 comes out, that is perfectly within the discretion I think

16 and allowable under the case law to have that

17 consideration go forward because there may be, depending

18 on the order of how things come in, there may be a piece

19 later of non-hearsay that comes in that corroborates that

20 piece of hearsay perfectly that then in the balancing that

21 Comito talks about, you would admit it. So I think it's

22 part of the overall equation of the circumstance.

23

SPECIAL MASTER RIVELAND: Okay.

24

MS. WHITNEY: But if you don't find anything that

25 corroborates it, then I think the objection is, you know,

26

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1 should be sustained and that piece should not come in. It

2 should not be a part of the consideration in the ultimate

3 determination that the Deputy Commissioner makes as to

4 whether there is a violation or not.

5

MR. STEWART: And this is where, I think in

6 plaintiffs' position, that the law compels and actually

7 pragmatism requires a stronger rule than that. This is

8 where looking at three pieces of hearsay in a fog and kind

9 of intertwining them together and saying, "Poof,

10 admissible" is problematic and under the confrontation due

11 process right in the 14th amendment that we're talking

12 about, each piece of hearsay that comes in over a

13 confrontation objection should be examined individually.

14 And if it comes in improperly, each piece of hearsay

15 inflicts some constitutional injury and by admitting three

16 pieces, it's only more grave of a violation than admitting

17 one piece.

18

To the extent that Ms. Whitney is talking about

19 kind of a conditionally hearing hearsay evidence to then

20 find out what sort of corroborative evidence there is,

21 then, you know, that's something that happens in federal

22 court. This happens -- in general, there can be a sort of

23 conditional admission pending what other evidence comes

24 through.

25

SPECIAL MASTERRIVELAND: Right.

27

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1

MR. STEWART: But as in the Hall case where six

2 corroborative pieces of evidence came in, five of which

3 were not hearsay from five testifying percipient

4 witnesses, it's a very different situation than your

5 hypothetical of three inadmissible hearsay pieces.

6

SPECIAL MASTER RIVELAND: Is this process of

7 conditional admission used at all?

8

MS. WHITNEY: Yes.

9

SPECIAL MASTER RIVELAND: In the revocation

10 process?

11

MS. WHITNEY: Yeah, and it's used in courts as

12 well by judges all the time.

13

And Chase, let me just touch back on it. When

14 the plaintiffs are talking about, you know, each piece of

15 evidence if that comes in for consideration there's

16 constitutional injuries inflicted, that's not necessarily

17 the case because I think we have to keep in mind that even

18 Comito says that the standard here is harmless error.

19 It's not bigger than that. It was the error -- if the

20 balancing was done, was the error harmless.

21

So we have to keep that in mind I think as the

22 overall approach, but I would also point out that both

23 Comito and Hall and any of the cases frankly, when they

24 look at whether there was harmless error and then look at

25 a piece of hearsay evidence, what they're doing in every

28

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1 single case is not saying this particular evidence in a

2 vacuum is inadmissible. They have to, by necessity, look

3 at everything else and they do.

4

When in Hall, they're considering the statements

5 that were made by the declarant, who is not in court the

6 victim that they couldn't locate.

7

In that situation, everything they look to

8 whether somebody was testifying or not -- and we probably

9 have a

about what even the testimony that was

10 given by those folks is whether that's hearsay or not

11 because still, the declarant isn't in court to be

12 confronted; but nonetheless, what the court is doing in

13 Hall and Comito and everyone of these cases, is not just

14 looking at the piece of particular hearsay and saying it's

15 inadmissible, bye, it's gone. They're looking at it in

16 the context of what are the other circumstances? What are

17 the other conditions that were present in that particular

18 case? What did the trier of fact have the ability to

19 assess in making that determination? And by necess

20 they have to consider all of the other pieces of evidence

21 to determine if there's some indicia of reliabil

to

22 this

of hearsay and so I think you can't cut it and

23 just say here's a piece of evidence that's coming into

24 me -- and even in Comito -- an out of court statement by a

25 declarant who is not showing up, the court there didn't

29

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1 just say, well, that statement is hearsay, it's gone. It

2 did an analysis and that analysis involved consideration

3 of all of the other circumstances that were present in the

4 case. So I think that is sort of the governing thing that

5 we're seeing in everyone of these cases; Comito, Hall,

6 everyone of them. It's not just in a vacuum in a piece

7 of evidence. It's a whole consideration of everything

8 that's coming in whether that gives it some indicia of

9 reliability. How else could you determine if it had an

10 indicia of reliability if you couldn't see the other

11 pieces of the puzzle that were sitting there before that

12 trier of fact.

13

MR. STEWART: I think I will make one distinction

14 that I think is important to raise that in the appellate

15 cases that we're reading and we're looking at harmless

16 error analysis or we're looking at whether a particular

17 Comito determination was prejudicial to the defendant,

18 these are appellate standards. What we're trying to

19 develop here is a principled rule for the trial court, or

20 in this case, the hearing officer.

21

I just want to be clear that to sort of import

22 what would be a harmless error rule into the hearings

23 would be very, very problematic because in essence what

24 happens then is that you're taking what is actually an

25 appellate level of review and bringing it right into the

30

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1 Deputy Commissioner's living room and then what you've got

2 here in cases like Comito where the other hearsay

3 testimony ... what was considered was, in Comito, there was

4 the stipulated testimony of the Las Vegas detective that

5 was stipulated to preserve the evidentiary objection to

6 that testimony.

7

You have in -- also in -- well, I'll leave it at

8 Comito, but simply the distinction between trial and

9 appellate courts, there is -- it's important not to go too

10 far down the harmless error track.

11

DEPUTY SPECIAL MASTER MORRISON: And would you

12 say more about how you see the difference in the setting

13 that we're talking about; the standards in contrast?

14

MR. STEWART: I guess in -- so when we're talking

15 about the hearing itself and the rule that defendants

16 should set based on the Comito case is that in the Comito

17 case, the court said in every situation where hearsay

18 evidence is proffered or testimony of an adverse witness

19 is proffered over a confrontation clause objection, the

20 court must conduct this Comito balancing, must weigh the

21 releasee's interest in confronting that adverse witness

22 against the government's good cause for denying it and

23 that standard is the standard that governs the admission

24 of hearsay evidence in these Valdivia cases, in parole

25 revocation proceedings.

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1

The confrontation clause compels it and this

2 question of harmless error on appeal isn't something that

3 actually should come into the calculation of developing a

4 principled policy for the decision maker.

5

SPECIAL MASTER RIVELAND: We're talking about DCs

6 and I think I can end up with harmless error and I'm

7 probably not going to get challenged. It may not be a bad

8 way to go.

9

Let's say that my intention if I revoke Johnny is

10 that I'm going to give time served. That probably would

11 be seen as a harmless error. I revoked him based on

12 possibly an illegitimate

evidence.

13

MR. STEWART: But

, that's a decision for

14 the appellate body in our rubric.

15

DEPUTY SPECIAL MASTER MORRISON: Do you all have

16 thoughts about the point that he's raised?

17

MS. WHITNEY: Well, I don't think that we

18 disagree fundamentally about that Comito, the language at

19 all, and to be clear, my pointing out the harmless error

20 was simply a response to the constitutional violations

21 actually existing, or a presumption that they are, but I

22 don't think we disagree about the standard on Comito what

23 that should be.

24

I think again, the fundamental issue is can

25 you -- and I certainly -- there's no disagreement that if

32

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1 you have a piece of hearsay and it's not within one of

2 these exceptions, you really need to do the balancing and

3 that's what's required. So I don't think there's a

4 disagreement about that. I think, fundamentally, this

5 disagreement is about number one, hearsay exceptions; does

6 that -- which is the issue; one, does that get us past

7 having to do the full balancing and of course defendants

8 take the position yes, it does, because it satisfies the

9 inherent reliability aspect, and number two; in the

10 context that we were talking about when all this arose,

11 was, you know, can you consider other pieces of hearsay or

12 how far does that line go when you're assessing one piece

13 of hearsay. What do you consider and how far do you go in

14 trying to distinguish that or to say if it's reliable

15 enough under that balancing approach.

16

So I don't think fundamentally there's any

17 disagreement about that, so I just want to be clear.

18

SPECIAL MASTER RIVELAND: The gravity issue is

19 somewhat interesting and that I'm not sure that hearing

20 the DC consider the gravity of the situation and the

21 potential penalties the way I interpret it, I guess, in

22 whether to include or allow entry of some hearsay

23 evidence, and I'm assuming that means that using some of

24 the cases that were referenced if there's a prison term,

25 long prison term, as a potential punishment that greater

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1 attention should be placed to that admission of hearsay

2 evidence than if there's a minor penalty.

3

Is that agreed upon? That general, non-legal

4 description of what I read into it?

5

MS. WHITNEY: Yes.

6

MR. STEWART: Yes.

7

SPECIAL MASTER RIVELAND: So one could interpret

8 that two ways; one is that the higher the likely penalty

9 the more aggressive the DC should be in doing the

10 balancing analysis. What is unclear to me is does that

11 then mean the reverse of that or the other end of that.

12 If there's a minor penalty available if the revocation

13 occurs, that I can be very free in allowing the entry of

14 hearsay?

15

MS. WHITNEY: No, I don't think that's actually,

16 you know, in

to be specific, I think it's the Martin

17 case that talks about that as one of the factors, and to

18 be clear, Comito says that there are, you know, there are

19 two primary factors are important ones and there are

20 others. So there are a lot of factors that even are

21 probably illustrated by any of the cases that we want to

22 look at. I don't think that defendants take the position

23 that just because, you know, there may be lesser penalty

24 attached that, you know, you can just willy nilly let

25 things fall by the wayside.

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1

The standard approach is and should be that you

2 still have to properly do your job and consider those

3 factors if you're doing the balancing. I think even in

4 the Martin case to be clear, you know, there were issues

5 about the urinalysis report which had to do with the fact

6 that nobody was there to provide any foundation for the

7 testing service or what have you, and the consideration of

8 the fact that the penalty or the automatic penalty took it

9 out of the discretion of the person, the trier of fact in

10 essence, to determine how long this person was going to

11 serve for revocation and that was very problematic, which

12 is obviously the genesis of that particular factor that

13 Comito talks about.

14

So yes, I think in all instances no matter what,

15 it's a penalty, it's some deprivation of liberty, it's a

16 lesser than, of course, another proceeding, but yes, that

17 that should be something that should be considered and

18 nobody should willy nilly.

19

SPECIAL MASTER RIVELAND: So if I understand it

20 then, you both would agree that if more serious or onerous

21 the potential penalty, the more aggressive the DC should

22 be should be in applying the standard.

23

MR. STEWART: When you say aggressive, you mean

24 in conducting a thorough balancing?

25

SPECIAL MASTER RIVELAND: Yes. That that should

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1 bring to their attention that they must be more thorough,

2 even as careful as they can be.

3

MR. STEWART: And I would agree with that and

4 disagree with the corollary of the lesser penalty and I

5 agree completely on that. And the other portion just with

6 Martin is it might seem that in Martin they were talking

7 about a mandatory minimum of taking away the discretion

8 and we say, well here in parole, we're talking about 1 to

9 12 months, which isn't -- maybe that's not much time

10 but Martin actually was facing 4 to 10 months based on

11 three violations he admitted to; this fourth violation

12 kicked him out to a 16-month sentence. The range is

13 really not all that different, so I think the

14 consideration is the same and I think we agree on that.

15

MS. WHITNEY: And I think, Chase, that the way

16 that the Deputy Commissioners are trained on this now is

17 that, you know, the more possible time that can be

18 imposed, the more significant the plaintiffs'

19 confrontation right.

20

MS. CASSADY: Parolee.

21

MS. WHITNEY: Or parolee. Sorry. What did I

22 say?

23

SPECIAL MASTER RIVELAND: Every time I say

24 something stupid, Ginny kicks me under the table and I'm

25 starting to get a little bruise.

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1

MS. WHITNEY: Do you need padding.

2

MS. CASSADY: Do you need a break?

3

SPECIAL MASTER RIVELAND: Pretty soon.

4

MS. WHITNEY: Shin guards, maybe.

5

DEPUTY SPECIAL MASTER MORRISON: The record

6 should reflect I have not touched the man.

7

SPECIAL MASTER RIVELAND: Let's at least

8 introduce the third one that the plaintiffs had. It's on

9 page four, beginning line one. It says, "Third, under due

10 process and the Valdivia permanent injunction, are

11 defendants ever entitled to make parolee choose between

12 the right to a timely hearing and the right to confront

13 adverse witnesses."

14

First of all, let me ask a question about this,

15 both parties actually. Do we have any data that gives us

16 numbers around this issue that says this happened 17,000

17

last year or three times last year?

18

MS. WHITNEY: We're aware of none.

19

MR. STEWART: And we're aware of only the one

20 that we put into the briefing. There aren't very many

21 cases, but I believe it was parolee number three in the

22 briefing; is that right?

23

MS. WHITNEY: Yes.

24

MR. GALVAN: If I may be heard momentarily on

25 that. There actually is a table, an excel table that was

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1 employed in the last compliance report cycle that counts

2 the number of postponements and it does include totals for

3 the number of postponements because of lack of appearance

4 of a witness or the need for another witness. And we

5 don't know what the correlation is between that number and

6 how many in which a Comito objection was made and then the

7 response was, "Okay, well let's -- your objection was

8 heard. Let's have the hearing later," but we do know that

9 it seems to happen with a -- fairly often that hearings

10 are postponed to get more witnesses.

11

So I think one could infer that there's some

12 s

ficant fraction of those where the Comito objection

13 was made and was at issue. We've in the past asked

14 defendants track that so we can use it for monitoring. I

15 think they said it would be overly burdensome to track the

16 Comito objections and count them, but if that were done,

17 then one could -- we would have better data.

18

DEPUTY SPECIAL MASTER MORRISON: Let me ask a

19 corollary question. Has anyone undertaken a systematic

20 look at whether this is happening?

21

MS. WHITNEY: No, and can I just -- I just want

22 to respond quickly because I feel I have to and that is --

23 for the record, I need to object to all of the statements

24 at this point because, number one; whatever that excel

25 spreadsheet is is not a part of this motion. It's nowhere

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1 found in any of plaintiffs' papers, so I don't know what

2 it is. I don't have it in front of me to look at it. I

3 can't possibly assess what it says or doesn't say. Number

4 two; is the fact that everything is being said about it is

5 pure speculation and I think that goes to the core of what

6 we said in our opposition, which is that we've created

7 this issue that not only have we never met and conferred

8 on, but it's not -- if it's just one case that they know

9 or think is there for sure and

else is based on

10 speculation, I think it just denotes something that

11 doesn't require any action or any decision at this

12 particular point because it's under the old adage, if it's

13 not broke, don't fix it, and I think that how we've

14 answered to this third parolee and our opposition points

15 out that there were various considerations, not the least

16 of which was the parolee's own witnesses to be present

17 that caused for the continuance and the fact that in that

18

parolee's case, he was already revoked on

19 something else, so his, quote, I

interest, while he

20 was -- for the few days -- for the period of delay to have

21 the hearing was not impacted at all and that's

22 fundamentally what we're looking at here, then I think the

23 case is really something that doesn't speak to the broader

24 issue of this range for resolution.

25

SPECIAL MASTER RIVELAND: Let me ask --

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1

MR. STEWART: Can I just respond very briefly on

2 this point.

3

In the Ernie Galvan reply declaration, we did

4 attach defendants' Valdivia compliance report. This is

5 paragraph six to the Galvan reply declaration. I'm not

6 100 percent sure if that particularly referenced excel

7 spreadsheet is an exhibit to that report, but I do think

8 it may be in the record.

9

SPECIAL MASTER RIVELAND: Okay.

10

DEPUTY SPECIAL MASTER MORRISON: Okay. And also

11 to clari a point that was raised, but not closed out.

12 Defendant said no they had not undertaken a systematic

13 look at whether this practice was happening. Have

14 plaintiffs undertaken a systematic look as to whether this

15 is happening?

16

MR. STEWART: I think you might be better

17 equipped to answer this.

18

MR. GALVAN: No, we've not. We get this

19 complaint fairly regularly and we raise it and we have

20 raised it in paragraph 27 inquiries, but we haven't pulled

21 it out to determine the prevalence of it.

22

DEPUTY SPECIAL MASTER MORRISON: Thank you.

23

SPECIAL MASTER RIVELAND: Let me ask a question

24 of plaintiffs. I'm assuming that each instance where

25 there is a continuance that there's an attorney

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1 representing a parolee unless the parolee has refused.

2

MR. STEWART: That's correct.

3

SPECIAL MASTER RIVELAND: So we have the

4 counselor's representation in this process and extending

5 the hearing. So what's the problem?

6

MR. STEWART: I think in our view -- and that's

7 what we say in the moving papers -- the problem is that in

8 some cases the Deputy Commissioners are unwilling to

9 either exclude the evidence that might result in dismissal

10 of serious charges or exclude the evidence or subject it

11 to a Comito balancing probably would result in the same

12 exclusion of evidence, which then might let somebody off

13 of a perceived parole violation.

14

I think that you're correct that the parolees are

15 represented by counsel. Counsel do make these objections

16 as in Parolee three case in the record and the

17 commissioner's as in the record. Parolee's three case the

18 commissioner stated on the record that he would -- and I'm

19 paraphrasing -- but would grant the objection to the

20 extent that he would continue the hearing to permit

21 confrontation at a later time. He didn't say it exactly

22 like that, but that is not the rule under Comito and

23 that's the problem.

24

SPECIAL MASTER RIVELAND: Let me ask a question

25 because I'm not acquainted with criminal law in the State

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1 of California, but if I'm a criminal defendant and for

2 some reason -- I assume there -- for a felon charge

3 there's certain time frames that have been to be met in

4 order to bring me to trial unless I waive -- and if my

5 attorney representing my issues continues that case for

6 whatever reason, I'm assuming that's done under criminal

7 law in the State of California, is it not? And is the

8 assumption in that case that because I'm legally

9 represented that I'm making a fair decision even though

10 I'm continued in custody?

11

MR. GALVAN: I may address that. The distinction

12 between the two scenarios are the Superior Court judges

13 are not being instructed by a supervising authority to put

14 the defense counsel in a position of you will have -- we

15 will have this hearing again after your speedy trial date

16 has expired because the prosecution's witnesses were not

17 here, and if you don't agree to that, I will accept the

18 statements of the prosecution witnesses through

19 un-confronted hearsay of another witness and you'll never

20 get to cross-examine the witness. No criminal defense

21 attorney in the State of California has ever been put to

22 that choice.

23

SPECIAL MASTER RIVELAND: I'm not sure -- help me

24 understand.

25

MR. GALVAN: The difference between these two

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1 scenarios are that in a criminal trial in the Superior

2 Court, if you are in fact at the last day, the last day

3 that the trial could legally be held under the state's

4 speedy trial act, and a key prosecution witness has failed

5 to show up, there is no higher authority of the Superior

6 Court judge, there is no -- as there is of the hearing

7 officer. The problem the reason we're here on this

8 issue is that we contend it's the policy and procedure of

9 the board to instruct these hearing officers to -- when

10 they're on the last day if they face a Comito objection,

11 to not exclude the evidence and put the state to its

12 burden based on what it has properly before it and have

13 the hearing there on that day and let the chips fall where

14 they may, but rather, put defense counsel to a choice

15 saying you can have your speedy trial, or you can have

16 your confrontation, but you cannot have both.

17

In the Superior Court, if you were on the last

18 day in a criminal trial, defense counsel would not be put

19 to a choice between both rights. The Superior Court judge

20 would not be able to tell defense counsel, "Look, you're

21 right, the witness is not here. And you're right, you

22 have a right to cross-examine them, but I'm going to hold

23 your client's trial past the speedy trial deadline so they

24 can get the witness here. Do you waive? And if you don't

25 waive, by the way, I'm going to put -- I'm going to let

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1 this other witness read to the jury what the absent

2 witness said and you're not going to get to

3 cross-examine." That choice could never occur.

4

SPECIAL MASTER RIVELAND: Okay. Let me follow

5 that back just a minute now. Is it not possible that that

6 could lead to unintended consequences? If, for example,

7 there is a policy that says that if the witness doesn't

8 show up, PO, the police officer, whomever the witness may

9 be, and the DC feels that there's hearsay evidence, do you

10 admit the hearsay evidence and you revoke somebody because

11 you can't go beyond the 35 days and let the parolee stay

12 in custody until whatever happens.

13

MR. STEWART: And--

14

SPECIAL MASTER RIVELAND: I mean, isn't that

15 possible in an unintended consequence then, rather than my

16 continuation for three to five days or whatever the time

17 frame.

18

MR. STEWART: And that's correct, but only if

19 that proffered hearsay evidence comes through the Comito

20 balancing and it should be admitted pursuant to Comito.

21 So you're absolutely right that if the deadline is firm

22 and parole revocation as it is in speedy trial act and

23 state court, it's going to it's all going to come to a

24 head on day 35 and perhaps

25

SPECIAL MASTER RIVELAND: So, is that true if

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1 it's the parolee's witnesses that don't show up too?

2

MR. STEWART: Well -- and I heard a little bit of

3 this in your question before. If the parolee -- my

4 understanding is that if the parolee is asking for more

5 time, the parolee can't sort of burn the candle at both

6 ends. The parolee can't say I want more time and I want

7 my charges dismissed because I didn't have a hearing in

8 time. Essentially the parolee asking for more time is

9 waiving that time as the timeframe, especially the

10 Valdivia timeframe.

11

SPECIAL MASTER RIVELAND: And is there no

12 circumstance under which the parolee could waive their

13 time in your opinion beyond that, beyond the witness

14 issue?

15

MR. STEWART: Oh, no. I think the parolee can

16 waive time. Actually, I'm not familiar with defendants'

17 policy on -- if there are restraints

18

MR. GALVAN: The injunction said they could waive

19 time for good cause shown.

20

MR. STEWART: For good cause shown. So that

21 could hypothetically include a situation where the parolee

22 and parolee's counsel were completely unprepared or didn't

23 have a witness present or -- and of course that good cause

24 shown would all be in the determination of the hearing

25 officer.

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1

SPECIAL MASTER RIVELAND: Or if counsel felt that

2 they could destroy the evidence presented by potential

3 witness.

4

MR. STEWART: An adverse witness you're saying?

5

SPECIAL MASTER RIVELAND: Yes.

6

MR. GALVAN: We don't we don't dispute that

7 situation. We don't dispute that continuances are

8 properly sought and granted when parolee's counsel has a

9 free choice. Our dispute is when parolee counselor are

10 required to trade one right for another. When parolee's

11 counsel are told by the hearing officer, "No I will not

12 put the state to its case on day 35 based on what they

13 brought here today. I will require you to waive --

14

SPECIAL MASTER RIVELAND: But isn't that

15 happening even if it's -- isn't generally the parolee's

16 counsel agreeing to delay the hearing --

17

MR. STEWART: No.

18

SPECIAL MASTER RIVELAND: -- because the state

19 doesn't have their witness?

20

MR. STEWART: No, no, no.

21

SPECIAL MASTER RIVELAND: How do we know that?

22

MR. STEWART: Well, the very Comito objection

23 made in parolee three's case that is defense counsel

24 objecting to the lack of the adverse witness present.

25

SPECIAL MASTER RIVELAND: But we don't know

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1 frequency or how often that happens?

2

MR. STEWART: Well, no, but on a very basic level

3 under speedy trial act considerations and state court and

4 I think it's the same considerations in parole revocation,

5 on any kind of a delay is attributable to one side or the

6 other. And when you're talking about a defendant in a

7 speedy trial act consideration waiving time because they

8 need their friendly witnesses and they don't have them

9 present. That time is not counted against the speedy

10 trial act clock. Same thing in parole revocation, but

11 when it's an adverse witness, they absolutely can't

12 require the defendant and the defendants' counsel to waive

13 time simply to guarantee confrontation. Speedy trial act

14 says, "No, dismiss the case," and it is absolute in state

15 court, I'll tell you.

16

SPECIAL MASTER RIVELAND: You mentioned a word

17 I'd like to pursue, but it will be after a ten minute

18 break and that's good cause. Another one of those

19 fascinating words that I don't understand you folks

20 learned in law school. We'll take 10 minutes.

21

(Whereupon a brief recess was held from 10:56

22 a.m. to 11:25 a.m.)

23

SPECIAL MASTER RIVELAND: Let's see. 11:25.

24 We'll proceed with our hearing.

25

Loren had indicated -- he used the phrase "good

47

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1 cause," and I guess I'd like to ask the question of each

2 party, not necessarily what you find to be the full legal

3 listing, but your descriptions of what good cause would

4 be.

5

MR. STEWART: Can I ask a clarifying question?

6 Are we talking in the context of denying confrontation to

7 good cause to deny confrontation as in the Comito

8 balancing test?

9

SPECIAL MASTER RIVELAND: Yes.

10

MR. STEWART: Okay. All right. Good cause is

11 another one of those problematic terms of art that varies

12 based on the circumstances and the facts. This is what

13 the cases say. Comito itself says that sometimes good

14 cause might be proven only by administrative expense of

15 procuring a witness. Good cause sometimes can be very

16 little, but other times, it can be great. It's hard to

17 define. I guess, as an approach to it generally, the

18 government needs to show good cause as to why they were

19 unable to procure an adverse witness to be confronted.

20 Good cause sometimes would be that -- examples are a

21 police officer who is an adverse witness might be

22 unreachable and I've seen lots of examples; training,

23 vacation.

24

To be clear, I think our position is some of

25 these should be planned. If a police officer is on

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1 vacation where the revocation window is 35 days and

2 presumably a vacation is not, that might not be good

3 cause, but good cause needs to basically be the government

4 showing why they've been unable to produce the adverse

5 witness to be confronted. I think it's hard to get much

6 deeper than that.

7

In some cases where the adverse witness has made

8 out-of-court unsworn statements where as Comito says the

9 confrontation interest of the parolee is at its apogee.

10 In those cases the good cause has to be extremely high to

11 outweigh the parolee's interest in confrontation. I

12 think, you know, if you'd like to prod me with questions

13 or try to get deeper into this or if defendants would like

14 to add to what I'm talking about.

15

MS. WHITNEY: No. I think just the simple

16 statement is that the reasons that can constitute good

17 cause vary from circumstances. Simply put, that's not a

18 very helpful standard, but I think that's what it is as in

19 both Comito and Hall and even Martin. There are certain

20 factors that the courts have said can constitute good

21 cause, which include the reasons that Loren has indicated

22 being, you know, the expense of providing for difficulty

23 of procuring the witness to the hearing; things of that

24 nature, but I think what those cases really talk to is

25 again is just going to vary depending on the circumstances

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1 to look to see is that a good reason why the witness was

2 unavailable and therefore, confrontation wasn't necessary

3 or was overcome by that showing.

4

In Hall, for example, it says in determining the

5 government's good cause for not producing a witness, we

6 look to both the difficulty and expense of procuring

7 witnesses and the traditional indicia of reliability borne

8 by the evidence. So those are some factors there that we

9 look at.

10

So in a nutshell, there's no clear cut

11 delineation or listing of what all those factors can be

12 because it does vary on the circumstances.

13

SPECIAL MASTER RIVELAND: Well, I hear you sort

14 of saying the same thing actually.

15

MS. WHITNEY: Yes.

16

MR. STEWART: Yes.

17

SPECIAL MASTER RIVELAND: And it seems to me that

18 the challenge of good cause is not that one could come up

19 with a clear definition of it, but enough of a definition

20 that training can occur; the DC's; otherwise your simple

21 statement of judgment puts it allover the board. There

22 has to be some baseline eventually for training purposes

23 to--

24

MR. STEWART: Right.

25

SPECIAL MASTER RIVELAND:

give guidance.

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1

MS. WHITNEY: Right.

2

SPECIAL MASTER RIVELAND: Not full mandated

3 direction, but to give guidance to a DC and how they're

4 going to approach the issue.

5

MR. STEWART: One thing that I think has been

6 effective that we have seen in defendants' training is the

7 defendants do use case examples in their training. They

8 particularly use in what is resource document number

9 one -- that I think is not part of the record, but just to

10 reference it -- they use the Comito case long excerpts of

11 it. I think that cases are illustrative are helpful to

12 coloring out what might constitute good cause.

13

In Comito, verbal -- unsworn verbal allegations,

14 the good cause wasn't enough. In Hall, by contrast as the

15 court says, unsworn verbal allegation, but as the court

16 said in Hall, as part of good cause, the government ran

17 the percipient witness's Social Security number, went to

18 the homeless shelter where she was last seen; they real

19 did a lot and in that case, that good cause showing

20 overcame the individual parolee's confrontation interest.

21 To the extent as we've said in our papers that these cases

22 are helpful. Other cases, recent cases involving one

23 involving a California parolee In re David Miller case is

24 one where one of the parolee defense panel attorneys

25 pursued a habeas writ. It got to the court of appeal,

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1 resulted in another

ion showing sort of where in

2 Comito the good cause or lack of good cause should fall

3 and I won't reiterate in any length, but in the papers,

4 plaintiffs suggested that this might be a good way to

5 chart the waters of Comito and good cause if defendants

6 were to alter their contract with the parolee defense

7 panel to help fund more of those types of cases.

8

DEPUTY SPECIAL MASTER MORRISON: Part of what we

9 were thinking about in this area is process; how to get

10 those questions answered. I don't want a list right now,

11 but when you all have been talking about what each of you

12 considers good cause, have there been things where you've

13 felt like you were at an impasse?

14

MS. WHITNEY: I would say probably not just

15 because I think as we've discussed here today, there are

16 some very common ones that we fully agree on. I think the

17 problem is that -- and I don't know that anybody's really

18 asked for this in the context of this issue -- but I don't

19 think we can certainly come up with an exhaustive list --

20

DEPUTY SPECIAL MASTER MORRISON: No.

21

MS. WHITNEY: -- of those, and I don't think

22 there's any disagreement about that. So I think the issue

23 of the legal obligation versus what can be trained on it

24 are sort of two separate things. The legal obligation I

25 think we can readily agree on and do agree on that good

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1 cause can vary depending on the circumstances. We know

2 that there are some concrete ones that the courts have, in

3 the 9th circuit have focused on as part of that look, but

4 there are things beyond that. I don't believe we've tried

5 to and correct me if I'm wrong -- that we've tried to

6 go beyond that to look at what other circumstances might

7 be considered in good cause showing and or that we've had

8 any disagreement about the fact that there are some

9 certain ones, but the circumstances can cause a variance

10 of those.

11

MR. STEWART: I'd agree that we -- I don't think

12 we've gone far down this road. I don't think we have come

13 to an impasse on certain good cause situations. I think

14 there might be some, but we didn't brief this. I don't

15 think we need to go there.

16

DEPUTY SPECIAL MASTER MORRISON: I know you

17 didn't brief it.

18

MS. WHITNEY: Hence the questions.

19

MR. STEWART: Well, I think that probably -- I

20 think the disagreements would come about where plaintiffs'

21 counsel see a greater burden on the -- particularly the

22 parole agent to procure the presence of the witness

23 regardless of what would be a more inconvenient-like

24 rubric. The police officer on vacation is kind of a

25 classic example and I'm not even certain of your policy on

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1 this, but I do think I've seen in some cases and that the

2 board typically will say that that is good cause for the

3 denying confrontation and sometimes it ends up in the

4 delay of a hearing or the continuance of a hearing.

5

I think generally that plaintiffs' counsel's

6 perception of this is that there needs to be great

7 obligation on the parole agent because the confrontation

8 interest is highly significant. The agent has -- there's

9 35 days from the placement of the hold until a hearing and

10 in that time frame -- go ahead.

11

DEPUTY SPECIAL MASTER MORRISON: That's what I

12 wanted to accomplish.

13

SPECIAL MASTER RIVELAND: Let me follow on that

14 though. We talked before about that the consideration of

15 hearsay should be more onerous if indeed the penalty as a

16 result of revocation is significant.

17

Is there a

side to that that if -- let's use

18 the example. Let's say that I have a violent history,

19 numerous convictions for violent crimes and I've been on

20 parole. I'm now being held pending revocation and it's

21 pretty clear that from all my history and my present

22 potential violation, that I'm potentially dangerous to one

23 or more people either a specific potential victim or many

24 as the case may be. And DC is faced with a situation that

25 you just described. There's the police report and the

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1 police officer is either injured, ill, or on vacation and

2 won't be available at best for two weeks.

3

Is there any incumbency of potential harm to the

4 community that should be given consideration in whether I

5 set aside to reschedule a hearing until my potential --

6 until my witness is available?

7

MR. STEWART: I mean, I think that

8

SPECIAL MASTER RIVELAND: What I'm questioning, I

9 guess, is a pure point of law versus harm to be done only

10 speaking of harm to be done as potential to the community

11 or an individual in the community rather than harm to be

12 done to the parolee.

13

MR. STEWART: I think in plaintiffs' conception

14 of it, yes, there absolutely should be some consideration

15 of the fact that a parolee may be violent, pose an

16 individual or generalized threat, but the result the

17 solution to that is not extending the timeframes beyond a

18 constitutionally or beyond the Valdivia injunction

19 timeframe. The solution to that is not denying

20 confrontation. A solution is in the hands of the person

21 who knows this parolee the best; the agent. The agent

22 needs to take it upon him or herself to see that this case

23 is speeded along in a prioritized fashion so that the

24 hearing agent is not then placed in this decision -- the

25 hearing agent isn't put in a position of deciding between

55

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1 safety and these constitutional rights.

2

SPECIAL MASTER RIVELAND: But those are the

3 circumstances where the police officer simply is not

4 available, is either injured or in the hospital.

5

MR. STEWART: And I think that there maybe would

6 need to be some distinction between vacation, injury,

7 illness. There are things that come up that are

8 unforeseen and there are things that are foreseen and I

9 think where the agent can plan and can ask on day four

10 from the placement of the hold whether the police officer

11 has upcoming vacation. There is no excuse for failing to

12 know that.

13

An officer -- where a hearing is scheduled on day

14 31 and an officer is injured on the job or an officer gets

15 sick, maybe that's a different scenario and I'm not sure

16 that I'm prepared to make that concession firmly. It's

17 not really something that we had explored or briefed for

18 this, but that's the -- sort of what's foreseeable, what's

19 not, and what is foreseeable regardless of the danger to

20 the community, the onus is on the agent to make the case

21 happen in the constitutionally mandated timeframe.

22

SPECIAL MASTER RIVELAND: You have some things

23

MS. WHITNEY: Can I just tie up one thing? I did

24 want to point out that I know that counsel has talked

25 about the Miller case, which is a California state case,

56

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1 and during the context of some of our discussions 2 previously in meetings, we also talked about another 3 California case called Shepherd and in the Shepherd case 4 it often discusses -- and I realize it's under state law, 5 so take it for what you will -- but having said that, the 6 court in Shepherd talks about again whether good cause 7 exists is determined on a case by case basis and so I 8 think that even California courts consider that to be the 9 same as the federal level and the court goes on in 10 Shepherd to say that broadly good cause exists and they 11 list three particular instances. One, is the declarant is 12 unavailable under the traditional hearsay standard as 13 defined in California's Evidence Code; two, when the 14 declarant, although not legally unavailable, can be 15 brought to the hearing only through great difficulty or 16 expense. Again, that's consistent with even what Gagnon 17 and Morrissey say; and third, is -- or when the 18 declarant's presence would pose a risk of harm including 19 in appropriate circumstances, mental or emotional harm, to 20 the declarant. And it goes on to say that good cause 21 showing must be considered together with other relevant 22 circumstances including the purpose for which the evidence 23 is offered, the significance of the evidence to the 24 factual determination upon which the alleged violation is 25 based, and whether other evidence including a

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1 probationer's admissions corroborates the evidence.

2

So I think that fundamentally talks about, again,

3 the notion that it's going to vary on the circumstances

4 and there are a number of things that obviously would

5 formulate the good cause analysis that any trier of fact

6 is going to do, which would include even a judge in a

7 judicial setting.

8

MR. STEWART: Just one point only because we're

9 on the record. Just in that last passage that Ms. Whitney

10 quoted, that part of the corroboration there the court

11 does say and whether other admissible evidence just to be

12 clear.

13

MS. WHITNEY: Did I miss a word?

14

MR. STEWART: You just skipped the admissible

15 part because that is part of what we're talking about in

16 co-corroborate hearsay.

17

MR. GALVAN: Can I ask for another ten minute

18 break at this point?

19

SPECIAL MASTER RIVELAND: 10 minutes.

20

(Whereupon there was a brief recess to change

21 court reporters.)

22

23

24

25

58

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1

THE FOLLOWING PORTION WAS TAKEN BEFORE

2

LINDA VACCAREZZA, COURT REPORTER

3

12:04 P.M.

4

SPECIAL MASTER RIVELAND: Okay. I think it's

5 generally agreed upon that we'll work through the

6 lunch period, and I just have a few things that I

7 would like to follow up on. They are rather random,

8 so excuse anything that doesn't seem to be in logical

9 sequence.

10

In the defendant's opposition to motion on

11 page -- I don't see a page number. Am I missing that?

12

MR. STEWART: It should be at the foot.

13

MS. DEVENCENZI: Maybe it's a copying issue.

14

SPECIAL MASTER RIVELAND: Maybe.

15

Anyway, in sort of the midst of -- starting

16 at Line 7, you reference the 9th Circuit case, Re:

17 Segal. And you talk about, in descending order, the

18 amount of process which is due: the first being in

19 criminal prosecutions; the second being probation

20 revocations with impos on of sentence therefore

21 suspended; the third being probation revocation

22 hearings with sentence established and parole

23 revocation hearings; and, Number 4, prison

24 disciplinary proceedings.

25

I guess the question I have about that is

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1 and maybe one or both of you, of the parties, could

2 help me understand a bit better -- what your --

3 what is the difference between Number 2 and Number 3,

4 the probation revocations with imposition and terms of

5 standards to be applied?

6

MS. DEVENCENZI: I can answer that. Number 2, a

7 probation revocation hearing with the imposition of

8 the sentence heretofore suspended. When they put an

9 individual on probation, they sometimes do a suspended

10 sentence.

11

So like, for example, three-year state

12 prison. When they violate their probation, that three

13 years of state prison is imposed.

14

So that is a greater amount of due process

15 due given the greater amount of time.

16

SPECIAL MASTER RIVELAND: What are the differences

17 in terms of application of any standards between

18 Number 2 level and Number 3 level? What is more

19 onerous in regard to the category of Number 2?

20

MS. WHITNEY: Number 2 imposes a higher level of

21 standards, higher level of due process, because you

22 just pick up in the sentence sort of where you left

23 off when you went on out on probation.

24

SPECIAL MASTER RIVELAND: But in terms of

25 relationship to Comito, what are the differences? The

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1 suggestion is that the most onerous applications would

2 be in Number 1.

3

MS. WHITNEY: Correct.

4

SPECIAL MASTER RIVELAND: The criminal.

5

The second, with probation with a suspended

6 sentence. And there's some, at least, assertion that

7 there's a difference between the two in terms of

8 application of Comito.

9

MS. WHITNEY: If you just give me a minute.

10 Sorry. I wasn't prepared for this question, Chase.

11

MR. GALVAN: If I may, I may be able to address

12 that.

13

MS. WHITNEY: Can you give me a minute? He is

14 asking it to me.

15

MR. GALVAN: Sure.

16

MS. WHITNEY: It's Mempa v. Rhay is the case out

17 the U.S. Supreme Court that discusses the standard for

18 that.

19

The Mempa case, frankly, comes up with just

20 the decision primarily that a lawyer must be afforded

21 at that proceeding. So that's one of the impacts of

22 the process, or the due process, that the U.S. Supreme

23 Court applies in that proceeding.

24

So in that sense, at least, as affording

25 counsel and let me see. There's more here.

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1

While I'm looking, Ernie, go ahead.

2

MR. GALVAN: Okay. With regard to Comito

3 confrontation, this is a whole separate area of the

4 law, which I will confess to not know very much

5 about.

6

My understanding is -- and if it would be

7 helpful to the Mastership to have further briefing, we

8 can do

But my understanding is that at criminal

9 sentencing, the rules of evidence, and of 6th

10 Amendment confrontation, are different than they are

11 at the guilt phase of a trial. And so some types of

12 hearsay can come in unconfronted in a criminal

13 sentencing.

14

There's a whole other level of complexity

15 that's been added to this in the last few years,

16 because after Booker, sentencing facts on which a

17 sentence is based have to have been found beyond a

18 reasonable doubt by a jury.

19

And how that affects the whole hearsay

20 con

ion analysis at sentencing, there's probably

21

a lot of work done by other people on that, and I

22 would guess no one in this room.

23

So there may -- it may be an interesting area

24 of inquiry to compare the due process confrontation

25 1

on hearsay admissions in the Morrissey parole

62

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1 revocation hearing with those at a criminal sentencing

2 hearing. Although, I think what you would likely end

3 up with is an apples-and-oranges conclusion.

4

SPECIAL MASTER RIVELAND: Well,

seems to me

5 fairly clear, within my limited def

ion of clear,

6 for me, the criminal proceeding portion of it and the

7 prison disciplinary process. The question, I guess,

8 is more related to Number 2 and Number 3, simply as

9 relates to Comito, not in terms of other due process

10 rights.

11

MS. WHITNEY: There is no relationship to Comito

12 in regard to those. What Mempa v. Rhay says is that

13 it somewhat

Because the issue when you're

14 basically putting the person back into prison for the

15 rest of their term for which they were initially

16 sentenced,

says that that is basical a

17 continuation of the criminal proceeding from which it

18 emanated. So

likens it more clo

to what is

19 step one, which

criminal prosecutions, because it

20 is along the continuance of the criminal proceeding

21 itself.

22

The

inction is, again, that Morrissey and

23 Gagnon, in our case, say that parole revocation itself

24 is not a part of the criminal proceeding. It should

25 not be considered as part of that. So that's the

63

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1 distinction that Mempa v. Rhay draws with this type of

2 proceeding. And by "this type," I mean the probation

3 revocation with the imposition of a sentence

4 theretofore suspended.

5

In Mempa v. Rhay, it's just a continuation of

6 the criminal proceeding because the person is put

7 right back in to serve the remainder of their

8 sentence.

9

For parole revocation, it's a very different

10 situation. They are out on parole, they are serving

11 differently. The criminal proceeding itself has been

12 cut off already.

13

So consistent with Morrissey and Gagnon, the

14 parole revocation aspect of it, as compared to one

15 where they were just stepping back into their prison

16 sentence, having it been suspended is very

17 distinctive. It's not the same thing.

18

So in terms of Comito, Comito itself doesn't

19 have anything to do with either criminal prosecutions

20 or with the step number two, where there's a suspended

21 sentence.

22

Does that answer your question?

23

SPECIAL MASTER RIVELAND: Yeah. Or with prison

24 disciplinary hearings?

25

MS. WHITNEY: Correct. Correct.

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1

SPECIAL MASTER RIVELAND: Which I might add from

2 experience are allover the board. Speak about due

3 process challenges. I guess here's one that's wide

4 open, too. I'm not ignoring my questions. I simply

5 -- some have already been covered.

6

Let me ask the question, and we have talked

7 about this quite a bit already. But I'm a little

8 curious as to the degree of dispute in the issues of

9 the denying of -- based on specific circumstances and

10 the issues of whether it's inconvenience or monetary

11 value or expense or whatever.

12

Is there more -- is there a dispute there, or

13 is it a matter of definition on that good cause issue?

14

MR. STEWART: I would think it's a matter of

15 definition and of context. I think both Ms. Whitney

16 and I have sort of agreed that what constitutes good

17 cause in a particular circumstance might not

18 constitute good cause in another circumstance. So

19 there's the contextual piece, that piece. And then

20 there's just the fact that we haven't really fleshed

21 out in much detail the different scenarios of

22 potential good cause to make agreements or uncover

23 disputes on those issues.

24

SPECIAL MASTER RIVELAND: Would that be important

25 to do, or is the agreement sufficient?

65

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1

MS. WHITNEY: To be honest, I think that it's not

2 a necessity that we define out that, and I think it's

3 actually contrary to kind of what the law or the legal

4 obligations says. I think we can certainly talk

5 about, as a training issue, sort of how we look at

6 things, or as Loren had pointed out, with what some

7 live examples of cases show. That's a training

8 issue.

9

But in terms of the legal obligation, I think

10 it's actually important not to define out and limit

11 ourselves as to what constitutes good cause, because I

12 think certainly we agree on a few of them that the

13 cases really illustrate or talk about. But beyond

14 that, I think just the statements that the courts talk

15 about varying on the circumstances, that it sort of

16 defies being able to define it down to a particular

17 list that's going to govern in all circumstances.

18

And were we to try to do that, I think we

19 would also limit it so much that we would take away

20 from the flexibility that Morrissey and Gagnon talk

21 about should be a part of the overall consideration

22 here.

23

MR. STEWART: I think I agree with Vicky, in

24 general. I think that the -- you know, Paragraph 24

25 of the injunction, it's not just that Comito is the

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1 gatekeeper as to admission of hearsay; it's also that

2 the polic and procedures would be developed in

3 accordance with Comito.

4

I think that we agree that that language in

•

5 Comito about good cause varying on the circumstances

6 and the

s is accurate. I think to the extent that

7 we would reach any agreements, it would be that, you

8 know, Comito, that Hall, that certain cases on certain

9 facts reach certain outcomes.

10

And that's something that pretty clearly is,

11 from the text of the cases, not any interpretation.

12 But I agree that beyond that, I think it would be sort

13 of ill-advised to try to define with great specificity

14 what constitutes or does not constitute good cause.

15

MR. GALVAN: If I may add one caveat to that. In

16 order to come into compliance with Paragraph 24 of the

17 injunction, the policies and procedures developed by

18 the defense must include, and the words in the

19 injunction are, guidelines and standards derived from

20 such law, Comito and the controlling law.

21

So I don't think that the defendants could

22 reach compliance just by saying good cause is what

23 you're balancing for, and you'll know it when you see

24

I think that they do have to work on coming up

25 with some guidelines and standards.

67

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1

How specific those guidelines and standards

2 have to , no one really knows. But I think it has

3 to be more than just saying good cause. So I think

4 there does have to be some effort to define things and

5 come up with guidelines and standards.

6

SPECIAL MASTER RIVELAND: You're using the term

7 "

ines and standards." Does that differ from

8 what I heard Vicky saying, which is developing

9

-- I mean, is guidelines for the training for

10 training purposes and/or decision making? I hear you

11 about in the same place.

12

Is that incorrect or correct?

13

MS. WHITNEY: I thought that was correct but --

14

MR. GALVAN: No, I'm saying they are likely to be

15 the same thing.

16

DEPUTY SPECIAL MASTER MORRISON: Following on

17 that, is it correct that guidelines and standards have

18 not been distributed to date?

19

MS. WHITNEY: On what in particular?

20

DEPUTY SPECIAL MASTER MORRISON: On the

21 application of Comito.

22

MS. WHITNEY: Yes, they have.

23

DEPUTY SPECIAL MASTER MORRISON: Okay.

24

MS. WHITNEY: They have. The issue, I think, is

25 there are standards and guidelines that have been

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1 disbursed, there is training that occurs. Whether

2 some in particular -- let me just address this -- but

3 whether in particular a deputy commissioner, one out

4 of 100, or however many out of 100, does something

5 that's off the mark, perhaps is something that, again,

6 is within the discretion that you're going to see in

7 judicial scenarios just the same.

8

You can train them, but what they do

9 sometimes is sort of beyond control. So, yes, the

10 standards and the guidelines have been disbursed, they

11 have been talked about, as Loren alluded to as well.

12 There are examples, talking, for example, about the

13 facts of Comito in that, as part of that training.

14 But, yes, that

the case.

15

DEPUTY SPECIAL MASTER MORRISON: Okay. What years

16 were the guidelines and standards distributed?

17

MS. CASSADY: In the manual. '04, July 1.

18

DEPUTY SPECIAL MASTER MORRISON: So just staying

19 on that track for a second, you've mentioned training

20 that you've done, and I think the material shows that

21 there's been multiple trainings.

22

What testing have you done of the DC's

23 understanding of those trainings?

24

MS. WHITNEY: I don't believe there's been any

25 testing like sitting them down and -- I'm not sure

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1 exactly what you're looking for, but I don't think

2 there's been any formal, quote, "testing" --

3

DEPUTY SPECIAL MASTER MORRISON: Okay.

4

MS. WHITNEY:

to see whether anybody

5 understands or not.

6

Certainly, if something comes to the

7 attention that there's been not a right decision or a

8 good decision, that people can -- you know, the board

9 can look at that and say, you know, yea or nay, this

10 wasn't carried out the right way. But there's not

11 been any testing of that formal kind, of testing of

12 their knowledge.

13

DEPUTY SPECIAL MASTER MORRISON: Okay. Has there

14 been a system of doing observations in the field about

15 how DC's are applying Comito?

16

MS. WHITNEY: Yes.

17

DEPUTY SPECIAL MASTER MORRISON: Okay. Would you

18 describe that some?

19

MS. WHITNEY: Well, I think it's the monitoring

20 team goes out and observes revocation hearings. I

21 myself have gone out and observed some revocation

22 hearings. I think that's -- Plaintiffs obviously, and

23 counsel, go out and observe and report back to us on

24 things. I think there's sort of a lot of that.

25 Different aspects going on at the same time.

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1

DEPUTY SPECIAL MASTER MORRISON: Okay. And in

2 those types of observations, is it structured to cover

3 every DRU?

4

MS. WHITNEY: Yes, I believe so. I think they

5 yeah, I'm just not sure where the questioning is

6 going. I may be wholly unprepared for that

7 discussion.

8

But, yeah, my understanding is that they

9 obviously go from place to place in monitoring tours

10 and such. And obviously if something is -- if ACDC

11 and I don't mean the rock group, even though I like

12 them -- but if an ACDC is out obviously observing

13 their own staff at times, that's another way of

14 monitoring what's been going on. Not only Comito, but

15 every aspect of the revocation hearing itself.

16

DEPUTY SPECIAL MASTER MORRISON: In the course of

17 those observations or you mentioned a central kind

18 of information coming to you to check on a decision,

19 right? You might review tapes, right?

20

MS. WHITNEY: That may be some part of it. Yes.

21

DEPUTY SPECIAL MASTER MORRISON: Okay. In doing

22 that, have you seen instances where the balancing

23 wasn't done, the balancing test of Comito?

24

MS. WHITNEY: I'm sure there are some instances

25 where a particular deputy commissioner hasn't gotten

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1 it right, and there are some instances where that

2 decision may have been overturned or overruled or

3 whatever.

4

And there are situations where a DC, in the

5 context of a hearing, will be doing Comito balancing,

6 find that unavailability, and such weigh against or in

7 favor of excluding the evidence and dismiss charges

8 accordingly as well. So I think there's some of

9 everything. Yes.

10

DEPUTY SPECIAL MASTER MORRISON: Okay. So you

11 were describing one scenario where they might do it in

12 a way that you wouldn't want them to.

13

Has it also come to your attention that

14 sometimes they don't do the balancing test?

15

MS. WHITNEY: Possibly, yes. Yeah. There may be

16 some instances of that, I'm sure.

17

DEPUTY SPECIAL MASTER MORRISON: Okay. Okay.

18 Thank you.

19

MS. WHITNEY: Yeah. Just as some of the judges in

20 these cases haven't, but

21

DEPUTY SPECIAL MASTER MORRISON: Exactly.

22

MS. WHITNEY: So, yeah. I mean, it's not only us,

23 it's judges, too, that do that. So, yes, absolutely.

24

DEPUTY SPECIAL MASTER MORRISON: Of course.

25

SPECIAL MASTER RIVELAND: And sort of following on

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1 that train, frequently in governmental organizations,

2 when there are decisions to be made that aren't

3 heavily structured, where there is a lot of

4 discretion, means for quality control or some kind of

5 administrat

review somewhere, other than simply

6 monitoring teams or whatever, where either side can

7 say X didn't happen, and one of the plaintiff's

8 solutions for that, of course, is the provision of

9 funds to CalPAP to be able to appeal a case in court.

10

That's sort of a legal

sian, not an

11 administrative action. On other issues, decisions

12 alone, defendants have been working for quite some

13 time, I think, on a decision-review process.

14

Narrowing that review to Comito sues alone,

15 is there any thought being given to what an

16 administrative process might be to assure quality

17 control?

18

MS. WHITNEY: As to Comito itself? Just limiting

19 to Comito?

20

SPECIAL MASTER RIVELAND: Limiting or to include

21 Comito.

22

MS. WHITNEY: Well, I think that there's overall

23 considerations that are given to a process to review

24 things that may have happened. That hasn't reached

25 full fruition

, and how that's going to be hammered

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1 out -- I'm not sure what you're asking me.

2

SPECIAL MASTER RIVELAND: Let me start in a

3 different way.

4

MS. WHITNEY: This is kind of outside the motion.

5

SPECIAL MASTER RIVELAND: Let me do a parallel

6 kind of thing.

7

MS. WHITNEY: Yeah.

8

SPECIAL MASTER RIVELAND: In the process that's

9 enumerated in the remedial order, the agreement is

10 that there are a variety of people who make

11 decisions: The parole officer makes the first

12 decision to pursue revocation; the supervisor reviews

13 that decision; the ParAd reviews the supervisor's

14 decision; and the DC deals with that decision in both

15 probable cause as well as at final hearing.

16

So we have a chain of administrative review

17 over discretionary decisions.

18

MS. WHITNEY: Right.

19

SPECIAL MASTER RIVELAND: And at any level, that

20 decision can be reversed, affirmed, or whatever the

21 case may be.

22

It seems at the moment in Comito, or in

23 revocation hearings, that there's limited

24 administrative review. I mean, there's the access to

25 a superior court to da, da, da. But to assure quality

74

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1 of a very discretionary decision process, what kind of

2 things would go on to do that, both present or

3 future?

4

MS. WHITNEY: I guess I'm not prepared to answer

5 that question in the context of the motion, Chase, to

6 be honest with you. I think what I can tell you is

7 that in the context of any administrative proceeding,

8 be it with this state agency or another, some of them

9 have administrative processes, where they review

10 internally. And then after that final, you can file

11 with the superior court if you want to challenge the

12 dec ion.

Or there are ways that you can file a

13 writ with the superior court even outside of the

14 administrative process in some cases.

15

So in terms of a review of a bad decision in

16 a revocation hearing, I would say to you that the

17 check on that, or the quality control on that, is

18 going up to superior court for review of the decision

19 in whatever aspect it's being challenged on, and that

20 that is a sufficient level review, just as it is in a

21 legal proceeding.

22

If a superior court judge makes a decision

23 that is questionable, or you have a bas to want to

24 challenge it, you would then file that up with the

25 Court Of Appeal and proceed through that process, and

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1 that judicial review of those decisions is in fact

2

self a quality control function, because as in the

3 case of In Re Miller, which the Plaintiffs have cited

4 to, if the superior court or, you know, an appellate

5 court determines that there was an error that was made

6 below, they are going to create that rule or that

7 quality check, in essence, to say if you're doing this

8 in the future, you need to be doing it this way.

9

And that's the sort of the quality control

10 aspect of the judicial process, I think, with respect

11 to those types of challenges.

12

SPECIAL MASTER RIVELAND: So that would suggest to

13 me that the total quality review you see is a legal

14 one.

15

For example, the process I outlined as part

16 of the remedial order in the State of California is

17 very similar to the same process used in many

18 jurisdictions -- parole officer, parole supervisor,

19 frequently another supervisor or ParAD type person,

20 da, da, da, da, going to a hearing.

21

The purpose -- and it's not directed by the

22 court or agreed to necessarily. It's simply the

23 quality control that the agency itself puts on

24 discretionary decision making, and not something

25 imposed by a federal or state court.

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1

And the question then becomes, in my mind, or

2 to ask is, is the only -- the legal process offers the

3 opportunity, whether in any kind of hearing, that the

4 legal rights of an individual are protected. But it's

5 not necessarily implemented for the purpose of quality

6 control of what an executive agency does.

7

MS. WHITNEY: Right. Understood.

8

SPECIAL MASTER RIVELAND: So my question is: Is

9 there any thought given, or any process available, for

10 administrative review for quality purposes aside from

11 legal appellate options?

12

MS. WHITNEY: Right now, Title 10 does provide

13 some review after the decision, and there are -- the

14 standard in Title 10 provides for that review, at

15 least currently in the regulations.

16

MS. CASSADY: 15.

17

MS. WHITNEY: I'm sorry. Title 15. I'm getting

18 those confused a lot these days.

19

But Title 15 provides that the Board itself

20 can review decisions and to -- and have certain things

21 that they have to look for. So that is in place

22 currently, yes.

23

So in the context of considerations of things

24 beyond that, obviously, yes, there is consideration

25 being given to that, to develop a process for that.

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1 Yes.

2

MR. STEWART: I think, just so Plaintiffs can be

3 heard briefly on this, I think we appreciate the

4 approach because there should be a sort of multi-

5 faceted or outside-the-box approach to what the proper

6 solution is to problematic Comito outcomes.

7

Our confidence in any kind of an

8 administrative review process right now is low, of

9 course, because we have legal disagreements on what

10 the proper standards are. So, hence, the motion, of

11 course, and bringing the enforcement motion.

12

With respect to the Title 15 review, I

13 believe it's Section 2041, and that's just a section

14 that allows the Board to review any decision made by a

15 Deputy Commissioner within ten days of the decision.

16 The Board can change, in one direction or the other,

17 any decision that's -- there's no mechanism in that

18 section for a parolee to challenge a particular

19 revocation outcome.

20

I think in practice, the parolee defense

21 panel has sent e-mails to the Associate Chief Deputy

22 Commissioners to try to use it as a source of

23 underground appeal that we don't really acknowledge

24 exists. It sort of exists; it's not quite clear.

25

The point is that right now, the only

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1 mechanism for challenging an adverse Comito decision

2 as a practical matter is state habeas. And in the

3 case of most petitioners, they don't have the time,

4 they don't have the resources.

5

I say the time because their revocation --

6 generally their revocation terms are fairly short, and

7 by the time all the process goes ahead, they have

8 already served out their time for most petitioners.

9 Aside from a principle of "I was wronged," there is no

10 practical benefit to pursuing a state habeas. The In

11 Re Miller case is an exception, in part, because one

12 of the more talented parolee defense bar attorneys,

13 Jennifer Jennings, took that case on and followed it

14 through to the Court of Appeals. That's rare, very

15 very rare.

16

DEPUTY SPECIAL MASTER MORRISON: And let me ask.

17 You've raised in this motion the idea of funding those

18 kinds of writs.

19

What would make a violation of this aspect of

20 the revocation process rise above other types of

21 violations such that it should be funded?

22

MR. STEWART: I think, as we have put forth in our

23 papers, I think the ongoing problem with this -- and

24 when I say "ongoing problem" with Comito, it's not

25 just the dispute since I wrote a letter on December 15

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1 to defendants about this -- December 15th, 2006, to be

2 clear, one year ago tomorrow.

3

It's not just that 's been a year -- it's

4 been documented for quite some time, and in the

5 Mastership's own report, that the implementation of

6 Comito has been problematic -- it's been an ongoing

7 problem. And I think both parties would recognize

8 that Comito is complicated.

9

It's not just -- there's not sort of a

10 willful desire not to follow the law in Comito; 's

11 that Comito is complicated.

12

And when many of your hearing officers or lay

13 hearing

cers really, very, very detailed and

14 ongoing

ning is critical. Perhaps testing or

15 something to gauge the commissioners' levels of

16 understanding is needed.

17

But what's very clear -- based on the

18 outcomes, based on the evidence that we put forth in

19 our moving papers, and based on what we even hear from

20 attorneys is that -- and see in revocation hearings

21 it's that 's not working. Comito is not working.

22 Confrontation rights are being trampled.

23

And I think that's why it's Plaintiff's

24 position that this rises above other levels of

25 violations within the Valdivia case.

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1

DEPUTY SPECIAL MASTER MORRISON: On one point

2 that you've raised. This would be an estimate, so

3 it's really a general question. I know you haven't

4 looked for this. I don't expect you've looked for

5 this.

6

Among the DCs currently working in the field,

7 about how many of them are lawyers?

8

I'm not looking for a number. Do you think

9 it's a majority? A minority?

10

MS. CASSADY: I think it would be a small majority

11 at this point.

12

DEPUTY SPECIAL MASTER MORRISON: Small majority?

13

MS. CASSADY: Right.

14

DEPUTY SPECIAL MASTER MORRISON: And we understand

15 there's a new class in academy right now.

16

MS. CASSADY: Go ahead. I'm sorry.

17

DEPUTY SPECIAL MASTER MORRISON: Among the DCs who

18 are in academy now, do you have a sense of how many

19 are lawyers?

20

MS. CASSADY: I'm going to say zero.

21

MS. SULLIVAN: One

22

MS. CASSADY: I'm sorry. Excuse me, Steve. But

23 those are -- is he permanent position?

24

SPECIAL MASTER RIVELAND: Let's stick to one

25 person.

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1

MS. CASSADY: None of those are permanent

2 positions; but they are being trained, obviously, to

3 be used when necessary.

4

DEPUTY SPECIAL MASTER MORRISON: Okay.

5

SPECIAL MASTER RIVELAND: The -- I lost my train

6 of thought there.

7

MS. WHITNEY: Chase, can I just touch base with

8 you on one of the issues? And that is, that what is

9 the review right now? And presently if ther CalPAP

10 requests or the agent of record requests or the

11 parolee makes a request to review a decision, the

12 Board looks at that. If it is

looks like that

13 problem is a systemic problem, then all of the DCs are

14 trained about it.

15

If it is not systemic, and it's limited to

16 one DC, then that DC is trained on it. So there

17 currently is that process in effect, in place.

18

SPECIAL MASTER RIVELAND; One of the things I was

19 going to say is something that Loren said is

20 absolutely correct. It is a complex problem. And

21 that's the only decision we are going to make today

22 is, yes, it's a complex problem.

23

But help me understand from a plaintiff's

24 submissions. It is complex, and there's a whole

25 variety of ways that one could review whatever, and

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1 you have recommended one, that the CalPAP attorney --

2 Cal PAP be funded so that its attorneys could do the

3 habeas process.

4

That, however, does not seem to be stated in

5 the remedial order whatsoever.

6

Can you help me understand a little more how

7 you arrived at that? I mean, I can think of a whole

8 variety of quality control processes that could be

9 implemented to deal with the fact that it is complex,

10 and that it may not be clearly universally applied.

11 That's one solution.

12

MR. STEWART: Do you want to speak to this?

13

MR. GALVAN: Oh, okay. This -- what we would be

14 asking for, what Plaintiffs would be asking for, would

15 be a recommendation to the Court for a further

16 remedial order.

17

In other words, based on the finding that the

18 compliance with Paragraph 24 has been unsatisfactory,

19 a further remedial order is necessary so that the

20 funding of CalPAP for selected writs would be in the

21 form of further -- a further remedy ordered by the

22 Court beyond what's in the permanent injunction.

23

MR. STEWART: And the Court has done this before?

24

MR. GALVAN: The Court in Valdivia has not been

25 asked to order additional remedies since 2004, if I

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1 recall correctly. Certainly the Court in other

2 similar class actions, such as Armstrong and Coleman,

3 has periodically found that it's necessary to order

4 additional actions from the defendants beyond what we

5 are -- in the existing injunctions, some of those

6 injunctions.

7

Coleman and Armstrong, those are not consent

8 decrees. Those are it depends. Part of

9 Armstrong's are in the form of the consent decrees for

10 stipulated injunctions; parts are imposed injunctions

11 after trial.

12

But in both types of contexts, stipulated and

13 nonstipulated injunctions, courts, in actions similar

14 to this one, have ordered additional relief when they

15 find it's necessary because the existing relief has

16 not succeeded in curing the constitutional violation.

17

SPECIAL MASTER RIVELAND: We did have a stipulated

18 order on the remedial -- joint stipulated order on

19 remedial sanctions since 2004.

20

MR. GALVAN: That's correct. And that

21 demonstrates the imperfection of my recollection.

22 That April 3rd, 2007, stipulated order does order

23 additional further steps that were not specifically

24 prescribed in the existing -- in the 2004 injunction.

25 So, yes, Valdivia is also an example.

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1

MR. STEWART: I might just add for context that in

2 the emergence of this Comito dispute, as Plaintiff's

3 counsel identified this as a problem and started to

4 engage with Defendants about the perceived problems,

5 it was a long arduous process. And we encountered

6 intransigence. We felt that really is actually not

7

's not a personal intransigence, it was just simply

8 what is a disagreement for the legal standard of

9 admission of hearsay evidence and nonconfrontation and

10 revocation hearings.

11

I don't think that it necessarily means that

12 we couldn't devise some sorts of solutions, but I

13 think that there needs to be -- the legal

14 disagreements will certainly need to be clarified

15 before Plaintiff's counsel would have confidence in a

16 quality control mechanism that is internal to

17 Defendants. Hence, the resort to the courts to

18 funding writs.

19

MS. WHITNEY: Do I get to respond?

20

SPECIAL MASTER RIVELAND: You certainly do.

21

MS. WHITNEY: I'm trying to be polite.

22

I guess a couple of points. Number one, they

23 are asking for folks to go back to the Court and

24 basically say that there's been a finding that there's

25 been no compliance in Paragraph 24, that it's been

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1 unsatisfactory. And I find it curious about that.

2 While there may have been some problems, there's not a

3 lot of evidence to support that kind of a

4 determination to warrant a further court order in this

5 regard.

6

I think the fact that there may be some

7 difficulties in understanding, you know, Comito and

8 how it's going to be applied and what have you,

9 doesn't rise to the level that we are not complying or

10 that we are violating terms of injunction, and I just

11 want to be very careful about that. That that

12 shouldn't be the connotation here.

13

And I also don't think warrants going back

14 and asking for an order for CalPAP to be funded by the

15 State to file writs, when there is no statistics

16 submitted by the Plaintiffs, no evidence to show that

17 this is such a problem that it requires such an

18 extreme remedy.

19

And by that, I want to go back and touch on

20 how we kind of got here, which was Morrissey and

21 Gagnon. Morrissey alludes to the potential of maybe

22 having counsel for some of the parolees. Gagnon goes

23 a little further, and it says, yes, you should have to

24 have attorneys, but it limits the circumstances in

25 which an attorney has to be provided to a parolee.

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1

What we have done in this case, in Valdivia,

2 through the injunction, is we have gone way further

3 than Morrissey and Gagnon ever required, and we have

4 provided attorneys, the State has, to every parolee

5 going through a revocation proceeding.

6

There's no other state in this country that

7 does that. And so I want to be careful that we don't

8 create an obligation and an extreme that is neither

9 warranted or necessary, but is also really going to be

10 extending the obligations in this state beyond what

11 even the U.S. Supreme Court, and even the injunction

12 in this case, warrant requires.

13

MR. GALVAN: If Plaintiffs might be heard on one

14 point about the settlement. The provision of

15 attorneys to all parolees in the Valdivia settlement

16 was not done gratuitously by Defendants. The

17 defendants were under an order to provide a full

18 probable cause hearing within ten calendar days of the

19 arrest with live witnesses, and confrontation at the

20 probable cause hearing followed by a revocation

21 hearing 30 days after the arrest, full confrontation

22 witnesses.

23

And the matter of how many attorneys had to

24 be appointed or in how many cases attorneys had to

25 be appointed was set for t

, would have to be

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I tried. So they were under the jeopardy of full

2 probable cause hearing, ten business days with live

3 witnesses, and a trial in which they had the risk of

4 being subjected to much broader or further attorney

5 appointment by order of the court.

6

They settled the case partly by offering full

7 attorney appointment. And in return, they got a

8 significant modification of the Morrissey probable

9 cause hearing requirement, which under this injunction

10 does not ordinarily require live witnesses under this

11 injunction.

12

So I'm always cautious when I hear an appeal

13 back to, well, Morrissey and Gagnon don't require us

14 to do all these things. There are many things that

15 Morrissey and Gagnon would require them to do that

16 they do not have to do because of this stipulated

17 permanent injunction.

18

And so I think these appeals to Morrissey and

19 Gagnon should be disregarded in this kind of

20 situation. You know, "Oh, we are doing much more than

21 we had to do under Morrissey." They are also doing

22 much less than they had to do under Morrissey. There

23 are benefits and burdens that they got in this

24 settlement.

25

SPECIAL MASTER RIVELAND: Okay.

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1

DEPUTY SPECIAL MASTER MORRISON: I think we are in

2 the home stretch, you guys.

3

So earlier, Plaintiffs had talked about a

4 practice of identifying another witness or other

5 evidences needed during the hearing and postponing in

6 order to get that. I didn't hear what Defendant's

7 position is on that.

8

MS. WHITNEY: One moment. I had a case -- there

9 are a couple of things, I guess. Let me harken back

10 to what I was thinking long ago.

11

I guess I would point -- I think that the

12 Mastership has touched on a lot of things having to do

13 with what good cause could be for maybe pushing past

14 the 35 days, if that happens. Aside from the fact

15 that the example that's given is the only one we know

16 of, and even then I'm not sure it's a pure, true

17 example of everything.

18

But I would also point you to Ryan versus

19 Montana, which is a 9th Circuit case. We do address

20 some of that in our brief -- or address the case in

21 the brief.

22

But in that case, importantly I think to this

23 consideration, is the fact that there was sort of a

24 head-butting of constitutional rights. One was the

25 right to confrontation, and one was the right against

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I self-incrimination. But -- so the parolee didn't want

2 to testify at his own revocation hearing because he

3 didn't want to incriminate himself for a later

4 criminal proceeding.

5

What the 9th Circuit said in Ryan is that,

6 again,

harkens back to Gagnon in the precursor.

7 And the statements there that the procedural rights

8 afforded in probation revocation and -- are not

9 intended to create this sort of rigid and overly

10 formal proceeding, that the right to confront and

11 cross-examine adverse witnesses is not absolute in

12 such a proceeding, and may be curtailed, again, if the

13 hearing officer finds good cause for not allowing the

14 confrontation.

15

And what it said in the context of pitting

16 the right against self-incrimination against the right

17 to confrontation that there are circumstances even

18

well, basically that it was a decision, a strategic

19 decision, on the part of the parolee.

20

And that there were circumstances even in

21 criminal trials, where a defendant is required to make

22 a difficult strategic choice that necessarily results

23 in a relinquishing of a constitutional right that is

24 both legitimate and noncompulsive.

25

And so in that situation it says, sorry,

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1 doesn't matter that you're going to be -- you're

2 having to choose between

two constitutional

3 rights. That's a strategic choice on your part. And

4 it said that's a circumstance in which, again, looking

5 at full circumstances, a

ing officer could find

6 that confrontation doesn't have to be allowed, or it's

7 not going to suffer as a

8

So I think there are choices that have to be

9 made in those circumstances. And, again, this right

10 to confrontation and revocation proceedings, as Gagnon

11 really states, is not an absolute, and that there may

12 be good cause. And I would say in the particular

13 parolee's case, some of that -- and I think the record

14 bears that out -- is that even the parolee's own

15 witnesses weren't there.

16

And so I think you have to give some latitude

17 to the fact that the good cause can determine that out

18 at that phase. It could be the public safety concern,

19 for example. All of those considerations can come

20 into play. It doesn't necessarily result in the two

21 rights -- I guess I don't know how to say better,

22 but I think just the

that the two rights are

23 there and exist, and the strategic choice that's made

24 on what to do with it in a constitutional sense is not

25 going to be something that's in error.

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1

DEPUTY SPECIAL MASTER MORRISON: Okay. And so I

2 know you want to get in here. I just want to distill

3 a chunk of that.

4

So is it fair to say that Defendants believe

5 that in some circumstances in the weighing that

6 postponing for the evidence that people believe is

7 necessary can be a good cause for postponement?

8

MS. WHITNEY: Absolutely.

9

DEPUTY SPECIAL MASTER MORRISON: And a lot of your

10 description goes to a disagreement with Plaintiffs

11 that putting a parolee to that choice is an improper

12 one.

13

MS. WHITNEY: And goes to the fact that they

14 are saying that there's this one example that we are

15 forcing a choice between constitutional rights, and

16 the Ryan case goes to the fact that, yeah, that

17 happens sometimes, but the right to confrontation in

18 some setting isn't absolute. And it's a choice that

19 can be made.

20

DEPUTY SPECIAL MASTER MORRISON: Understood.

21

Yes, Mr. Stewart?

22

MR. STEWART: I simply can't let that spin of Ryan

23 go. And I know it's not -- I'll make very brief

24 because I know the Mastership isn't concerned with the

25 facts of the case.

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1

SPECIAL MASTER RIVELAND: That's not necessarily

2 true, but proceed.

3

MR. STEWART: Ryan's case involved a choice that

4 Ryan made to either testify and possibly incriminate

5 himself on local charges for theft of a typewriter in

6 the Billings bus station. Ryan was basical in a

7 hearing, where he was facing revocation of his

8 probation and deferred sentencing.

9

At the same time, that testimony could be

10 used against him. He chose not to testify. That is

11 what Ryan talks about. I challenge you to find any

12 hearsay, to find confrontation issues in Ryan. It's

13 not in the case.

14

The Ryan case is about a strategic choice

15 between testifying and possibly incriminating oneself

16 or not testifying and basically relinquishing that

17 right to testify.

18

That is not a confrontation case. And to the

19 extent that Defendants rely on it to the contrary, I

20 would submit it's a misread of the case.

21

DEPUTY SPECIAL MASTER MORRISON: Okay. I

22 appreciate both of your clarifications, and I would

23

ke to move on to another subject.

24

MR. STEWART: Sure.

25

DEPUTY SPECIAL MASTER MORRISON: I would ke each

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1 of you also to comment on a subject we haven't touched

2 on yet.

3

As we are thinking about the effect of

4 hearsay exceptions, should we be distinguishing

5 documents from testimonial evidence from other types

6 of out-of-court statements? And if so, how?

7

MS. WHITNEY: Go ahead.

8

MR. STEWART: That's a good question.

9

DEPUTY SPECIAL MASTER MORRISON: Thank you.

10

MR. STEWART: It's a tricky question. It's

11 something that we have discussed at some length, and I

12 think wasn't addressed much in the briefing, if that's

13 your question.

14

Our position is that the distinction between

15 a particular piece of hearsay evidence, whether it's

16 testimonial or nontestimonial, sometimes called

17 documentary, our position is that in the Comito

18 balancing, that that distinction has no place. And

19 I'll tell you why.

20

To the extent that the testimonial and

21 nontestimonial distinction has gotten a whole lot of

22 new traction under the Crawford v. Washington decision

23 by the Supreme Court in 2004, that is a 6th Amendment

24 case, what we are talking about here is the limited

25 5th Amendment due process confrontation. And to

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1 clarify, Plaintiff's counsel do not believe that

2 Crawford V. Washington or 6th Amendment confrontation

3 applies in parole revocation.

4

So to the extent that the Crawford decision

5 distinguishes in a big way against testimonial and

6 nontestimonial evidence, the 5th Amendment

7 jurisprudence hasn't taken that same course. The 5th

8 Amendment due process right to confrontation is based

9 on an entirely di

body of law. It's something

10 that, honestly, as the parties didn't brief this -- we

11 thought about it a little bit, but we didn't brief

12 and I don't think we are prepared to sort of make

13 concessions or agreements on that right now.

14

But it is our position that the distinction

15 shouldn't change the way that hearsay exceptions or

16 reliability might

into a Comito balancing.

17

MR. GALVAN: Could I add one thing to that? This

18 is where the hearing officer needs maximum discretion

19 and ability to decide cases individually, as Morrissey

20 requires. Morrissey says you have to make a speci

21 finding as to a piece of evidence.

22

The Comito balancing test is robust enough to

23 ensure that the hearing officer can make decisions

24 about the reliability of a particular piece of

25 evidence, including in those decisions whether it's a

95

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1 document. Whether it's, I think, testimonial would

2 translate in the Comito context to unsworn verbal

3 allegation, the least reliable type of out-of-court

4 statement.

5

I don't think that in order to comply with

6 the 14th Amendment and the Paragraph 24, the Valdivia

7 permanent injunction, that Defendants need to import

8 the new 6th Amendment Crawford distinctions between

9 testimonial and nontestimonial into their guidelines

10 and standards.

11

I think their guidelines and standards will

12 work just based on the Comito doctrine, and maximizing

13 the hearing officer's ability to decide each case

14 individually. That, by the way, is where we depart

15 fundamentally on the significance of a hearsay

16 exception.

17

They say hearsay exception exists; you apply

18 a per se rule, in every single case, no matter the

19 circumstances; that that unconfronted out-of-court

20 statement can corne in and be considered. We say don't

21 take away the hearing officer's discretion. Don't put

22 blinders on the hearing officer to all the other

23 circumstances.

24

And one of the circumstances would be: This

25 is a document recording something that happened in the

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1 ordinary course of business, not prepared for

2 litigation, tends to be iable, reduces the

3 confrontation interest.

4

So, yes, the hearing officer should look. Is

5 it documentary, is it testimonial? But I don't think

6 the hearing officer has to look at it through the lens

7 of the new 6th Amendment jurisprudence, which is based

8 in very historical notions of why the 6th Amendment

9 confrontation right in particular was developed, and

10 what kind of statements it was meant to keep out and

11 let in.

12

Because we are in a separate due process

13 realm, I don't think you need -- you don't need it.

14 It doesn't add any protection for either the State or

15 the parolee, because Comito is enough, properly

16 applied, provided Comito is not distorted with a per

17 se hearsay exception rule.

18

SPECIAL MASTER RIVELAND: To follow Defendants on

19 that, is a deputy commissioner prohibited from

20 applying Comito --

21

MS. WHITNEY: No.

22

SPECIAL MASTER RIVELAND: -- if there's a hearsay

23 exception?

24

MS. WHITNEY: No. And one of the things that we

25

se in our opposition in the very beginning, in the

97

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1 introduction, is that we need -- to have a deputy

2 commissioner, even if there is a hearsay exception,

3 and they don't feel comfortable with it, should be

4 able to then have the discretion and have the choice

5 to say I'm just going to run through the Comito

6 balancing.

7

It's like running horne to marna, if you will.

8 But the point being that the legal obligation itself

9 that's created, which we believe is founded in cases,

10 is that we have the option, if there is a longstanding

11 exception, to permit admissibility if we choose -- if

12 a DC chooses to do that.

13

If they choose to go through a Comito

14 balancing nonetheless, that's what they have

15 discretion to do. And we are not seeking to limit

16 that ability for a DC to do that. What we want to be

17 clear of is that in the context of a document, being

18 the injunction, that imposes a

obligation, that

19 legal obligation doesn't go too far down the road.

20

And so that's why -- and the pos on in our

21 opposition is taken the way that

is

that we have

22 a right and the ability under the law, and it permits

23 us to use hearsay exceptions if we so choose to do

24 that, or we can just run through Comito balancing,

25 whichever is more comfortable.

98

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1

But the legal obligation self we feel is

2 very fundamentally something that has to be based on

3 the law and not beyond it. But, yes, absolutely, IS

4 the case, they can do it if they want to do

5

DEPUTY SPECIAL MASTER MORRISON: So on the earlier

6 question, what would your observations be?

7

MS. WHITNEY: On the distinction between

8 testimonial and documentary? You know, I would have

9 to join with Loren. That was not an issue that was

10 addressed in the briefing. So giving some thought to

11

, there are some cases, including even In Re Miller,

12 the California case that the Plaintiffs look at, that

13 talks about -- and Comito, for example, the unsworn,

14 out-of-court statement is testimonial in nature.

15 Obviously that was a problem situation.

16

And in In Re Miller, they talk about how the

17 documentary evidence has indicia of reliability that's

18 built into it, sort of things like that. When you

19 look at cases that cut -- the business records

20 exception, obviously that's a documentary evidence,

21 but I don't think -- I would agree that I don't think

22 that there -- Comito itself doesn't make a distinction

23 between the two at all.

24

And so tying the obligation to Comito, which

25

must be because of the injunction, there's nothing

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1 in Comito itself that says there should be a

2 distinction between the two.

3

DEPUTY SPECIAL MASTER MORRISON: Okay. Some

4 specific language that I would 1

Plaintiffs to

5 comment on, Vicky read it earl , but I'll read it

6 again so it's fresh in your minds.

7

So

lIs language concerning "the interest

8 is outweighed by the government's good cause and the

9 independent indicia of reliability" that support

10 Hawkins's statements" what are your thoughts about

11 that? It's right before the conclusion.

12

MR. STEWART: I think -- I mean, before the

13 conclusion -- so this is the point where the Court is

14 talking about the false imprisonment claim --

15

DEPUTY SPECIAL MASTER MORRISON: Which, by the

16 way, I'm

iar with, so you don't have to catch me

17 up.

18

MR. STEWART: Right. Right. I won't.

19

I think to the extent that the Court is at

20 that point, summarizing what it's done in that same

21 section -- and I would refer back to the preceding

22 page. So

nature of the

s to be proven by

23 evidence heading underneath that heading is where the

24 court looked at corroborative evidence. The Court

25 runs through the various pieces.

100

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1

The Court, at that point, says this is not

2 the end of the inquiry. Simply because hearsay

3 evidence bears some indicia of reliability does not

4 render it admissible. Hall's otherwise strong

5 interesting confrontation is somewhat lessened by the

6 reliability of the hearsay evidence, but it not

7 defeated.

8

I think that we are talking about the same

9 charge here. This is the false imprisonment claim.

10 And I think this is the Court's way of summarizing

11 that at the end of the day, the Government's good

12 cause did in this case outweigh Hall's interest in

13 confronting the hear evidence, the reliability --

14 as the Court says, the reliability of the evidence

15 decreased Hall's interest in confrontation, but didn't

16 end the day. That's the way I would view that.

17

DEPUTY SPECIAL MASTER MORRISON: Okay. I want to

18

I'm going to delay us

just a minute because I

19 want to call it up, because I think that what I had in

20 mind was a little different from what we have

21 addressed so far. So I want to make sure that we have

22 a chance to talk about it if we haven't yet.

23

Okay. I think my question remains about your

24 take on why the Court is discussing the fact that the

25 balance goes against Hall, why that discussion

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1 separates out the independent indicia of reliability

2 as though it were a separate factor.

3

MR. STEWART: In that same paragraph?

4

DEPUTY SPECIAL MASTER MORRISON: Right.

5

MR. STEWART: So just to be clear, you're reading

6 the conjunctive. So this is where that interest is

7 outweighed by the Government's good cause for not

8 producing Hawkins as a witness and independent indicia

9 of reliability? That portion?

10

DEPUTY SPECIAL MASTER MORRISON: Right. That

11 portion.

12

MR. STEWART: So you're reading that in the

13 conjunctive to say that both the good cause and

14 separately or independently the indi of reliability

15 would outweigh?

16

DEPUTY SPECIAL MASTER MORRISON: I'm saying it can

17 can read that way. So I'm wondering what your

18 response to that

19

MR. STEWART: My read of that is simply that the

20 Court is acknowledging that in this particular case

21 indicia of reliability were important. They were

22 important to decreasing Hall's interest in

23 confrontation that the Court had characterized the

24 false imprisonment claim.

25

The Court had characterized that interest as

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1 very high. This is the Court's way, through the

2 indic of reliability, of reducing that somewhat,

3 which then, compared with the Government's good cause,

4 results in this outcome. Now and I understand -- I

5 want to be responsive to exactly what you're asking.

6

I see how you could read as a completely

7 independent and separate ground for denying the

8 confrontation as indicia of reliability alone, but I

9 think Hall explicitly says to the contrary, that

10 indicia of reliability does not defeat that

11 confrontation of interest.

12

Inartful language, perhaps. But probably a

13 better explanation is simply that the Court here is

14 going through a Comito balancing -- and it's not

15 hidden; 's in the headings of each section -- and

16 quite clearly concludes that conducting that Comito

17 balancing, that the interest in confrontation is

18 outweighed by the good cause for denying it.

19

I think -- I mean, I think that it's -- that

20 sentence can be misleading. But I think that an

21 interpretation that indicia of reliability

22 independently would overcome the confrontation

23 interest is squarely rejected in the preceding page,

24 when the Court says no, that's not the case.

25

DEPUTY SPECIAL MASTER MORRISON: Your thought.

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1

MS. WHITNEY: with all due respect, I think it is

2 more consistent to read it as you are seeing it, which

3 is that it is a second fact. It's not just a

4 combination of the two; it's two separate components

5 of the Government's good cause.

6

The reason that I say that is that this, when

7 you point to the beginning of the inquiry, which talks

8 about indicia of iability is not enough, that then

9 turns the Court to the good cause, but in the focus of

10 the first

, which is the expense and

11 availability of that witness, his unavailability.

12 Because if you look at what Hall does in this regard,

13 you know, they go at length. The first thing they

14 cover off the bat on that analysis is the fact that

15 Hawkins is home s. Nobody can find her. They can't

16 subpoena her. So it really focuses on

17 unavailabi ty as a separate factor from the indicia

18 of reliability.

19

And the reason that I think that it is

20 consistent internally with Hall to say that indicia of

21 reliability -- in our case we would say a longstanding

22 hearsay exception means you don't have to go through

23 the balancing -- is because, again, in the precurser

24 before the full analysis of all the charges in Hall,

25 the 9th Circuit says -- I mean, they can say it's

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1 dicta, but it's there -- that in addition, several

2 pieces of evidence supporting the domestic violation

3 allegation are admissible under hearsay exceptions.

4

They don't say that we would have to balance

5 or anything of that nature. They say it's admissible

6 under hearsay exceptions. And then they go on to

7 point to, again, the language about longstanding

8 hearsay exceptions. They meet the more demanding

9 requirements for criminal prosecutions so suffice in

10 parole revocation proceeding.

11

So 's internally consistent in the Hall

12 case to say that if I have something that's subject to

13 a long-standing hearsay exception which both Congress

14 in the federal rules of evidence -- Congress and the

15 courts have determined establish indicia of

16 reliability, that that factor alone establishes good

17 cause -- that that alone establishes good cause for

18 the Government on that side.

19

So you don't have to do the balancing because

20 it's already been done for you because Congress and

21 the courts have said it. They have done the

22 balancing. Why would we need to redo it here in this

23 context?

24

So I think it's internally consistent to take

25 the approach that if you've got indicia of reliability

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1 under hearsay exception, you really don't have to go

2 through more. And I guess just as a follow-up, you

3 know, the cases -- one of the cases that we talked

4 about, which I think is really important in the

5 context of how this is workable, is United States

6 versus Aspinall, out of the 2nd Circuit, which is

7 cited by our cases in the 9th Circuit.

8

And Aspinall, they run through this thing,

9

s whole procedure, and come to the point, again, of

10 saying you don't need to do any balancing analysis

11 when it comes with a longstanding hearsay exception.

12 They even talk about Comito in Aspinall and what

13 Comito did and what Comito's effect was, and the fact

14 that even Comito is discussed in the advisory

15 committee notes to the Federal Rules of Criminal

16 Procedure 32.1, which is sort of the confrontation

17 kind of aspect, that conducting the harmless error

18 analysis is something that you do except where the

19 out-of-court statements fall within a recognized

20 hearsay exception.

21

So I think the Aspinall case has some very

22 good language that

ly speaks to what we are

23 talking about. And it talks about Comito, and it

24 talks about the process to get there. But I think

25 that's totally consistent and actually where Hall is

106

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1 getting its language in that

2

MR. STEWART: Could I make a couple points just in

3 response? The Aspinall case may have good language; I

4 don't think IS cited in your brief. And I'm at a

5 loss to discuss it today because I don't see it c

6 in the papers.

7

MS. WHITNEY: It is.

8

MR. STEWART: But as to the Hall case, the

9 language that Ms. Whitney cited is -- it's not

10 discussed before any of the violations are discussed.

11 In fact, 's -- and I'm referring to the language as

12 to hearsay exceptions.

13

t of all, Hall does not say that the

14 reliable hearsay pieces of evidence must satisfy. The

15 Hall court says that the longstanding exceptions to

16 the hearsay

that they should satisfy the lesser

17 standards. It's not as clear that necessarily the

18 Court is saying what Defendants are making the Court

19 out to say. I'm not going to go on further about

1

20 because you've seen it in my exhaustive brief.

21

I do want to add one thing, though, to this

22 conversation. I'm just going to quote a little piece

23 of the United States v. Martin. And the reason this

24 is relevant is that United States v. Martin, to

25 refresh, was the urinalysis case. And that's a case

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1 where the Government precisely made the argument that

2 balancing that considering each of the factors on

3 each side and at this point wasn't called Comito

4 balancing;

was called the Simmons balancing or the

5 Simmons right cause test -- it was effectively the

6 same balance that we still talk about today.

7

At this point the Government was arguing in

8 Martin, 9th, Circuit 1993,

Government was arguing

9 that where urinalysis tests are so reliable, they

10 should simply come in, no balancing. What the court

11 said to that is no. The court says the Government

12 urges -- and I'll give you a c here. I'm on 313.

13

"The Government urges us to hold that

14 urinalysis reports are so inherently reliable that

15 they may be introduced in any revocation hearing. We

16 decline to adopt such a doctrine in this circuit.

17 Such a blanket rule would be tantamount to abandonment

18 of the Simmons balancing test.

19

We would effect

hold the weight of the

20 Defendant's right to confrontation is irrelevant in

21 revocations involving urinalysis which is likely a

22 significant class of cases."

23

And going onto 314, the Court says: "The

24 balancing test is a workable means to assure" -- now

25 quoting Morrissey -- "to assure that the finding of a

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1 supervisory release violation will be based on

2 verified facts and that the exercise of discretion

3 will be informed by an accurate knowledge of the

4 releasee's behavior."

5

The court then went on to its command that we

6 cited in our reply brief that the Martin Court says

7 "District courts should apply the balancing test to

8 every alleged violation of the Morris

right to

9 confrontation."

10

In a later footnote: "Having ld that

11 district courts must apply the Simmons right balancing

12 test." It's clear. This has been tried before; it's

13 been rejected before. And I think going down the path

14 of hearsay exceptions trumping a confrontation right

15 is I-advised.

16

DEPUTY SPECIAL MASTER MORRISON: That's all I

17 have.

18

SPECIAL MASTER RIVELAND: I would like to add I

19 of the briefs as exhibits to the transcript. Can you

20 take them electronically?

21

Let me ask

first question. Do both

22 parties have with them hard copies of that, that we

23 could introduce as exhibits?

24

MS. WHITNEY: I would need a copy made of it. I

25 have -- I have my originals, but, yes, I do have both

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lour opposition brief and our rebuttal brief with me.

2

MR. STEWART: We have our -- could easily

3 produce -- mine is marked up a 1

bit but

4

SPECIAL MASTER RIVELAND: That's my problem.

5

MR. STEWART: We have them all in this office as

6 well, so I think we could produce them.

7

SPECIAL MASTER RIVELAND: Can we provide them to

8 Linda?

9

MR. GALVAN: Yes.

10

MS. WHITNEY: Is

just the briefs that you

11 want?

12

SPECIAL MASTER RIVELAND: Yes.

13

MS. WHITNEY: Because I know we have things under

14 seal problems with some of the other things. That's

15 why I asked.

16

MR. GALVAN: So, to

fy, not the declarations

17 and exhibits? Just the actual memoranda of points and

18 authorit ? The briefs? The arguments?

19

SPECIAL MASTER RIVELAND: I think the exhibits are

20 fine unless they are under

21

MS. WHITNEY: There are many under seal.

22

MR. GALVAN: So we should leave those out.

23

SPECIAL MASTER RIVELAND: I believe so.

24

MR. GALVAN: And we'll provide Linda with

25 everything not -- everything not marked "sealed

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1 document" we'll provide to Linda.

2

SPECIAL MASTER RIVELAND: Could you simply mark

3 them as exhibits chronologically by date? Each one is

4 dated. Start with the first date and mark them

5 through.

6

MS. WHITNEY: Maybe we can go off the record?

7

(Discussion was held off the record.)

8 (Exhibits 1 through 4 were marked for identification.)

9

(Time noted: 1:19 p.m.)

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

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1 BINGHAM, McCUTCHEN LLP
GEOFFREY HOLTZ - 191370 2 KRISTEN A. PALUMBO 215857
Three Embarcadero Center 3 San Francisco, California 94111-4067
Telephone: (415) 393-2000 4
PRISON LAW OFFICE 5 DONALD SPECTER 83925
General Delivery 6 San Quentin, California 94964
Telephone: (415) 457-9144
7
ROSEN, BIEN & GALVAN, LLP 8 MICHAEL W. BIEN 096891
HOLLYM. BALDWIN -191317 9 ERNEST GALVAN -196065
315 Montgomery Street, 10th Floor
10 San Francisco, California 94104 Telephone (415) 433-6830
11
Attorneys for Plaintiffs 12

13

UNITED STATES DISTRICT COURT

14

EASTERN DISTRICT OF CALIFORNIA:

15

OFFICE OF THE SPECIAL MASTER

16

17 JERRY VALDIVIA, et aI.,

No. Civ. S-94-0671 LKKJGGH

18

Plaintiffs,

19 v.

20 ARNOLD SCHWARZENEGGER, et aI.,

21

Defendants.

22

23

24

NOTICE OF MOTION AND MOTION TO ENFORCE PARAGRAPH 24 OF THE VALDIVIA PERMANENT INJUNCTION

HEARING

Date: Time: Location:
Officer:

November 1,2007 10:00 am Rosen, Bien & Galvan, LLP Chase Rive1and, Special
Master

25

26

27

28

NOTICE OF MOTION AND MOTION TO ENFORCE ~ 24 OF THE VALDIVIA PERMANENT INJUNCTION

Case 2:94-cv-00671-LKK-GGH Document 1398 Filed 02/25/08 Page 167 of 293

1

TABLE OF CONTENTS

2

3

NOTICE.................................................................................................................................... 1

4

INTRODUCTION ..................................................................................................................... 2

5

FACTS ...................................................................................................................................... 4

6

ARGUMENT ............................................................................................................................ 7

7

I.

The Applicability of a Hearsay Exception to Proffered Hearsay

8

Evidence Does Not Obviate the DC's Obligation to Conduct a

Balancing Under Comito. ..................................................................................... 8

9

A. Morrissey v. Brewer and Other Pre-Comito Cases on

10

Confrontation Emphasized the Importance of the Parolee's

Right to "Confront and Cross-Examine Adverse Witnesses." ...................... 8

11

B. Under United States v. Comito, the Hearing Officer Must

12

Balance an Individual's Confrontation Rights Against the

Government's Good Cause for Denying that Right. .................................. 10 13

C. Subsequent Holdings of the Ninth Circuit Dutifully Follow

14

Comito, Applying the Prescribed Balancing Approach.............................. 11

15

D. Other Administrative Cases, Statutes, and Regulations

Reaffirm the Principle that Confrontation is Central, even

16

Outside of Criminal Law......................................................................... 14

17

E. Recent California Cases Support the Federal Case Law

Position.................................................................................................. 16

18

II. Hearsay Evidence Statements that Cannot be Admitted Under Comito

19

Do Not Become Admissible When They are "Corroborated" by Other

Inadmissible Hearsay Evidence.......................................................................... 17

20

III. A Parolee Should Never be Put to Choosing Between a Timely

21

Hearing and Confronting His Accuser: If a Comito Objection is

Sustained and the 35-Day Deadline is Imminent, the Hearsay

22

Evidence Must be Excluded............................................................................... 19

23

IV. The Systemic Violation of Confrontation Rights Requires A

Comprehensive Remedy That Includes an Effective Means of

24

Challenging Future Violations............................................................................ 20

25 CONCLUSION ....................................................................................................................... 21
26

27

28 i
NOTICE OF MOTION AND MOTION TO ENFORCE ~ 24 OF THE VALDIVIA PERMANENT INJUNCTION

Case 2:94-cv-00671-LKK-GGH Document 1398 Filed 02/25/08 Page 168 of 293

1

TABLE OF AUTHORITIES

2

3

Federal Cases

4

Gagnon v. Scarpelli,

5

411 U.S. 778 (1973) ....................................................................................................................... 9

6 Goldberg v. Kelly,

397 U.S. 254 (1970) ..................................................................................................................... 17 7

Hernandez-Guadarrama v. Ashcroft,

8

394 F.3d 674 (9th Cir. 2005) ................................................................................................. 14, 15

9 Morrissey v. Brewer,

408 U.S. 471 (1972) .............................................................................................................. passim 10

Saidane v. INS,

11

129 F.3d 1063 (9th Cir. 1997) ..................................................................................................... 15

12 United States v. Comito,

177 F.3d 1166 (9th Cir. 1999) .............................................................................................. passim 13

United States v. Egge,

14

223 F.3d 1128 (9th Cir. 2000) ..................................................................................................... 18

15 United States v. Hall,

419 F.3d 980 (9th Cir. 2005) ........................................................................... 9, 11, 12, 13, 14, 18

16

United States v. Huckins,

17

53 F.3d 276 (9th Cir. 1995) ......................................................................................................... 18

18 United States v. Littlesun,

444 F.3d 1196 (9th Cir. 2006) ..................................................................................................... 11 19

United States v. Martin,

20

984 F.2d 308 (9th Cir. 1993) ................................................................................................... 9, 13

21 United States v. Petty,

982 F.2d 1365 (9th Cir. 1993) ..................................................................................................... 18
22

United States v. Simmons,

23

812 F.2d 561 (9th Cir. 1987) ......................................................................................................... 9

24 United States v. Stanfield,

360 F.3d 1346 (D.C. Cir. 2004) ................................................................................................... 11 25

United States v. Walker,

26

117 F.3d 417 (9th Cir. 1997) ......................................................................................... 2,9, 10, 11

27 Valdivia v. Davis,
206 F. Supp. 2d 1068 (E.D. Cal. 2002).......................................................................................... 2 28

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1 White v. White,

925 F.2d 287 (9th Cir. 1991) ......................................................................................................... 2

2

Zadvydas v. Davis,

3

533 U. S. 678 (2001) ............................................ " ....................................................................... 14

4

State Cases

5 In re Miller,

52 Cal. Rptr. 3d 256 (Cal. Ct. App. 2007) ............................................................................ passim

6

People v. Arreola,

7

7 Cal.4th 1144 (1994) .................................................................................................................. 16

8 People v. Shepherd,
60 Cal. Rptr. 3d 616 (Cal. Ct. App. 2007) ....................................................................... 16, 17,21 9

10

Statutes

11 2 C.F.R. § 180.745(a)(1) .................................................................................................................... 15

12 5 C.F.R. § 919.840(a)(1) .......................................................................................................... ,......... 15

13 8 C.F.R. § 1240.1 O(a)(4) .................................................................................................................... 15

14 22 C.F.R. § 51.85 ............................................................................................................................... 16

15 22 U. S.C. § 2714 ................................................................................................................................ 16

16 28 C.F.R. § 45.3(d)(3) ........................................................................................................................ 15

17 42 C.F.R. § 431.242(e)....................................................................................................................... 15

18 45 C.F.R. § 205.1 O(a)(13)(vi) ............................................................................................................ 15

19 Cal. Code Regs. tit. 15, § 2643 .......................................................................................................... 15

20

21

22

23

24

25

26

27

28

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1

NOTICE

2 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

3

PLEASE TAKE NOTICE that on November 1, 2007 at 10:00 a.m. at Rosen, Bien &

4 Galvan, LLP, located at 315 Montgomery Street, 10th Floor, San Francisco, a hearing by

5 the Special Master with Report and Recommendation to the Court will take place regarding

6 plaintiffs' motion for an Order Enforcing Paragraph 240fthe Valdivia Stipulated Order for

7 Permanent Injunctive Relief ("Valdivia Permanent Injunction" or "Injunction").

8

Through this motion, plaintiffs seek a Report and Recommendation requesting an

9 Order remedying defendants' denial of parolees' right to confront and cross-examine

10 evidence against them, in violation of Paragraph 24 of the Valdivia Permanent Injunction

11 and ofparolee's due process rights set forth in Morrissey v. Brewer, 408 U.S. 471 (1972)

12 and United States v. Comito, 177 F.3d 1166 (9th Cir. 1999). Defendants are unlawfully

13 denying plaintiffs' confrontation rights by failing to properly limit the admission of hearsay

14 statements in parole revocation proceedings as required by law. Plaintiffs request that the

15 Special Master recommend that the Court issue an Order: (1) enforcing Paragraph 24 of the

16 Injunction and clarifying its meaning; (2) compelling defendants to revise training materials,

17 policies, and procedures to comport with Comito and the strictures of constitutional due

18 process; and (3) requiring defendants to provide counsel to pursue writs of habeas corpus on

19 behalf of parolees whose confrontation rights have been violated as a result of defendants'

20 unlawful actions.

21

This motion is based on this Notice of Motion and Motion and Proposed Report and

22 Recommendation filed and served herewith, the Declarations of Shirley Huey ("Huey

23 Dec."Yand Loren G. Stewart ("Stewart Dec.") filed and served in support of this motion,

24 the Court files in this action, and such other materials and argument as may be presented

25 before or at the hearing.

26

27 ! The Huey Declaration and the exhibits attached thereto contain "personal infonnation" about
28 prisoners and parolees which is protected by a July 11, 2000 Protective Order in this case. Should the Huey Declaration or its exhibits be filed with the Court, they must be filed under protective seal.
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1

INTRODUCTION

2

Before the state can return a parolee to prison, the state must provide due process,

3 which "must include procedures which will prevent parole from being revoked because of

4 'erroneous information or because of an erroneous evaluation.'" Valdivia v. Davis, 206 F.

5 Supp. 2d 1068, 1074 (E.D. Cal. 2002) (quoting Morrissey v. Brewer, 408 U.S. 471, 484

6 (1972)). The state, as well as the parolee, has an interest in a process that provides a

7 "reliable result" in determining the facts regarding the parolee's conduct. See id. at 1078.

8 In our legal tradition, the strongest check on "erroneous information" is confrontation and

9 cross-examination of the witness providing the information. See White v. White, 925 F.2d

10 287,291 (9th Cir. 1991) (reversing parole revocation due to government's failure to

11 produce witnesses, noting that "[w]here the facts are contested, the presence of adverse

12 witnesses, absent good cause for their nonappearance, is necessary to enable the parole

13 board to make accurate findings").

14

Because of their critical truth-finding functions, confrontation and cross-examination

15 are central to the otherwise somewhat relaxed due process requirements for parole

16 revocation. See Morrissey, 408 U.S. at 489. The settlement in Valdivia recognized the

17 crucial role of confrontation and cross-examination by incorporating in the Valdivia

18 Permanent Injunction the following requirement at Paragraph 24: "The use of hearsay

19 evidence shall be limited by the parolees' confrontation rights in the manner set forth under

20 controlling law as currently stated in United States v. Comito, 177 F.3d 1166 (9th Cir.

21 1999). The Policies and Procedures shall include guidelines and standards derived from

22 such law." The rules of evidence, including the hearsay rule, do not apply to parole

23 proceedings. Instead, the admission of evidence is regulated by the parolee's due process

24 confrontation rights, which limit what facts may be proved without an opportunity to cross-

25 examine the witness asserting the purported facts. See United States v. Walker, 117 F.3d

26 417, 419-420 (9th Cir. 1997). The Ninth Circuit stated in Comito that, "in determining

27 whether the admission of hearsay evidence violates the releasee's right to confrontation in a

28 particular case, the court must weigh the releasee's interest in his constitutionally -2-
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1 guaranteed right to confrontation against the Government's good cause for denying it."

2 Comito, 177 F.3d at 1170.

3

In late 2006, defendants announced to plaintiffs' counsel that their hearing officers

4 would be instructed to dispense with any consideration of the parolee's confrontation right

5 whenever the state offered to prove a fact by an out-of-hearing assertion that fell within a

6 recognized hearsay exception. See Huey Dec. ,-r 2. Defendants have imported one-half of

7 the rules of the evidence-the hearsay exceptions-into parole proceedings, while ignoring

8 the other half, the hearsay exclusions. Importing the hearsay exceptions allows the state to

9 offer more unconfronted evidence against parolee, while conveniently ignoring the hearsay

10 exclusions that might operate to limit such unconfronted evidence. By announcing and

11 adhering to this novel rule, defendants have stopped complying with Comito, the Valdivia

12 Permanent Injunction, and due process. As set forth in the factual recitation below,

13 individual cases show that this approach has been implemented and is currently depriving

14 parolees of their due process-based confrontation rights. After many requests by plaintiffs'

15 counsel-starting in December 2006-to resolve this issue informally, the parties met and

16 conferred with the Special Master on August 6, 2007. See Huey Dec. ,-r 6. It became clear

17 that the parties had reached an impasse over at least the following three issues implicating

18 Comito and confrontation rights.

19

First, under United States v. Comito, in a hearing to which the rules of evidence do

20 not apply, may California return a parolee to prison based on out-of-court statements from

21 persons the parolee never gets to confront or cross-examine merely because the statement

22 might fall within a state or federal hearsay exception?

23

Second, under United States v. Comito, can the denial of confrontation be excused if

24 the state lines up several unconfronted hearsay statements next to one another and allows

25 each statement to corroborate its neighbors, even though all are from witnesses who are

26 never confronted or cross-examined by the parolee?

27

28

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1

Third, under due process and the Valdivia Pennanent Injunction are defendants ever

2 entitled to make a parolee choose between the right to a timely hearing and the right to

3 confront adverse witnesses?

4

The correct answer to all three questions is "no" under the Pennanent Injunction, as

5 well as under the controlling federal case law, and persuasive California authorities.

6

The Reports of the Special Master in this case provide context to these three disputes,

7 demonstrating that defendants' recognition ofparolee's confrontation rights, and

8 compliance with the corresponding section of the Valdivia Pennanent Injunction, has been 9 inconsistent at best. See Huey Dec. ~ 7 & Ex. 3 at 33-34 (noting in First Report of the

10 Special Master that "[d]efendants acknowledge the need for further training guidance"

11 regarding Comito, that interviews with "parole agents and supervisors reveal[ed] that many

12 uncertainties and misinfonnation regarding hearsay infonnation and Comito requirements

13 remain," and that "Deputy Commissioners' application of Comito varies depending upon 14 their background and length oftenure"); see also Huey Dec. ~ 8 & Ex. 4 at 30 (noting in

15 Second Report of the Special Master that "[p]ossible obstacles to the rights to present

16 evidence, to be heard, and to confront accusers must be examined").

17

Plaintiffs respectfully request that the Special Master recommend that the Court issue

18 an order requiring that defendants revise their policies and procedures to confonn with due

19 process and Paragraph 24 of the Pennanent Injunction, develop and implement new training

20 for hearing officers, and revise the contract for state-appointed counsel to provide

21 compensation for writs and appeals regarding denial ofconfrontation rights.

22

FACTS

23

Although this motion seeks relief on purely legal issues and not specific individuals'

24 cases, plaintiffs' counsel first recount four recent examples of the impact that defendants'

25 Comito policy had on Valdivia class members. In the brief summaries below, the parolees

26 are identified by number. Identifying infonnation is provided in the sealed Huey

27 Declaration filed concurrently herewith. 28

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1

(A) Parolee 1, see Huey Dec. -,r-,r 9-10 & Ex. 7-9: Parolee 1 was charged, among

2 other things, with possession of marijuana. The marijuana was found during a parole

3 search of Parolee 1's residence of record, where several other people lived. During the

4 search, these other residents allegedly denied that the marijuana was theirs, and said it

5 belonged to Parolee 1. At Parolee l' s revocation hearing, none of the other residents

6 appeared, and the Agent of Record testified that all of the "people at the home that lived

7 their denied it was theirs and said it was [Parolee I]'s marijuana." See Huey Dec. -,r 10 &

8 Ex. 5 at 7:10-20. Parolee 1's attorney objected to the introduction of these hearsay

9 statements. Instead of weighing the parolee's interest in confronting the accusations against

10 the government's good cause for denying the confrontation before ruling on the objection,

11 the Deputy Commissioner ("DC") summarily overruled the objection without conducting

12 any Comito balancing. The following exchange then occurred between the DC and the

13 Agent of Record: "[DC]: Were you in your official capacity as [a] peace officer when you

14 took that statement? [Agent]: Yes. [DC]: Is that a normal operation - normal part of your

15 duties? [Agent]: Yes. [DC]: Okay." Id. at 8:6-13. The DC conducted no further

16 discussion of the hearsay statements and found good cause for the charge of possession of

17 marijuana, assessing a twelve month revocation term, ineligible for half-time credit. See id.

18 at 24:5-10. The DC thus relied on the least reliable form of unsworn verbal allegation-the

19 self-serving statements of persons trying to avoid prosecution, and did so by short-circuiting

20 the required Comito balancing test.

21

(B) Parolee 2, see Huey Dec. -,r-,r 11-17 & Ex. 7-9: Parolee 2 was charged with,

22 among other things, failure to complete a drug treatment program at Center Point. Parolee 2

23 was discharged from Center Point because of an alleged dispute that he had with a Center

24 Point employee. The employee was subpoenaed to testify regarding alleged verbally

25 abusive statements made by Parolee 2 to the employee and his decision to "lay-in" in his

26 bed during a period not designated for laying in (conduct that resulted in his expulsion from

27 the program). The Center Point employee failed to appear. The DC found good cause for

28 the violation of failure to complete a drug treatment program by relying on a document -5-
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1 containing hearsay statements by the Center Point employee. The DC stated that the

2 document was "used in the normal course of business" making it "almost a business-record-

3 type of document, giving it more credibility than just an average document." See Huey Dec.

4 at, 15 & Ex. 9 at 36: 1, 36:9-1l. The DC also allowed the parole agent to testify to a

5 conversation he had with the Center Point employee in which the employee recounted the

6 alleged verbally abusive statements. See Huey Dec. at, 15 & Ex. 9 at 20: 16-25, 21: 1-1 O.

7 The DC did not conduct a Comito balancing as to either hearsay statement, never

8 considering whether good cause existed for denying confrontation and whether parolee's

9 strong interest in confronting the witness's version of the facts that led to his program

10 expulsion and parole violation might outweigh the government's good cause. The parolee

11 was returned to custody for twelve months, eligible for half-time credit. See Huey Dec. at

12 ,16 & Ex. 9 at 58:15-17.

13

(C) Parolee 3, see Huey Dec." 19-24 & Ex. 10-14: Parolee 3 admitted to one

14 charge of use of cocaine, and denied charges of possession of marijuana and battery (the

15 battery charge was amended to assault). Several witnesses were subpoenaed for the

16 revocation hearing that was held on the 27th day from the hold, but none of the witnesses to

17 the possession of marijuana or battery charges appeared. The Agent of Record sought to

18 introduce the witnesses' out-of-court statements through a police report and other hearsay.

19 Parolee 3 made a Comito objection. The hearing officer sustained the Comito objection, and

20 then said "I'm sustaining it to the extent that we're going to postpone [the hearing] and

21 subpoena all the witnesses." [d. at, 21 & Ex. 11 at 24:17-19. The hearing on the

22 remaining two charges occurred on November 14, 2006, eleven days beyond the 35-day

23 requirement set forth in paragraph 23 of the Valdivia Permanent Injunction. See Huey Dec.

24 at,21&Ex.13-14.

25

At Parolee 3's late hearing on the remaining charges, only one of seven subpoenaed

26 witnesses appeared. The DC allowed the witness to testify regarding statements made by

27 three hearsay dec1arants based on the belief that the reliability of three corroborating

28

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1 hearsay statements bolstered one other. The DC denied a Comito objection, stating on the

2 BPH 1103 that:

3

P's interest in confrontation weighed asainst the importance of witnesses'

testimony to the final finding or fact IS lesser than the reliabilitx of the

4

hearsay evidence and the corroboration of it. Three independent Lhearsay1

statements ... each corroborate each other and the weight of the corroborated

5

hearsay evidence outweighs P's interest in confrontation.

6 Based on these hearsay statements, good cause was found on a charge of battery, and the

7 parolee was returned to custody for a period of nine months, eligible for half-time credit.

8 See Huey Dec. at ~ 24 & Ex. 12 at 4.

9

(D) Parolee 4, see Huey Dec. ~ 25-26 & Ex. 15-17: Although Parolee 4's

10 attorney objected to the admission of hearsay statements regarding Parolee 4's alleged

11 intoxication in a car accident, the DC admitted the hearsay without conducting a Comito

12 balancing test. The DC heard testimony from a police officer regarding out-of-court

13 statements made by the parolee's brother in which the brother recounted the parolee's

14 statements at the accident scene about the parolee's alleged ingestion of methamphetamines

15 and alcohol. The parolee's brother was not present at the revocation hearing and had never

16 been subpoenaed. When asked about his decision to allow the hearsay statements of the

17 brother, the DC stated that the more important the evidence is to the state's case, the more

18 likely he is to admit it. This is the precise opposite of the proper test under Comito. The

19 DC ultimately found good cause on all charges. See Huey Dec. at ~ 26 & Ex. 16 at 2.

20

ARGUMENT

21

First, under Comito, its precursors, and its progeny, a balancing test must be used to

22 weigh the releasee's interest in confrontation against the government's good cause for

23 denying it before hearsay evidence is admitted. The applicability of a state or federal

24 hearsay exception does not obviate the need to conduct the Comito balancing. Other

25 federal, administrative, and California cases and statutes lead to the same conclusion.

26

Second, one hearsay statement is not rendered admissible because it is corroborated

27 by other inadmissible hearsay statements.

28

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Third, when a revocation hearing is held at or near the 35-day deadline set in

2 Paragraph 23 of the Valdivia Permanent Injunction and percipient witnesses fail to appear,

3 DCs must exclude hearsay evidence pursuant to Comito and, if necessary, dismiss charges

4 accordingly; even if the case involves serious charges, the witness's failure to appear is not

5 good cause for postponing the hearing.

6 I.
7

The Applicability of a Hearsay Exception to Proffered Hearsay Evidence Does Not Obviate the DC's Obligation to Conduct a Balancing Under Comito.

8

In the cases ofParolees 1 and 2 above, hearing officers declined to conduct a Comito

9 balancing and instead admitted the evidence as "reliable" because they believed it fell

10 within a hearsay exception.• Defendants have confirmed in writing that these are not 11 isolated errors, but rather official policy. See Huey Dec. ~ 5, Ex. 2. As set forth below, this

12 approach is contrary to Comito, Morrissey, and due process.

13

A. Morrissey v. Brewer and Other Pre-Comito Cases on Confrontation

Emphasized the Importance of the Parolee's Right to "Confront and

14

Cross-Examine Adverse Witnesses."

15

In Morrissey v. Brewer, the U.S. Supreme Court recognized the importance of

16 "assur[ing] that the finding ofa parole violation will be based on verified facts." Morrissey,

17 408 U.S. at 484. To that end, the Court held that the "minimum requirements of due

18 process" include the parolee's "right to confront and cross-examine adverse witnesses." [d.

19 at 489. The Morrissey Court authorized a single exception to that rule: the right to confront

20 and cross-examine yields if"the hearing officer specifically finds good cause for not

21 allowing confrontation." Id The Morrissey Court provided one example of good cause: "if

22 the hearing officer determines that an informant would be subjected to risk of harm if his

23 identity were disclosed." Id at 488. The Court did not suggest that evidence deemed 24

25 I In the case of Parolee 1, it must also be noted that the hearing officer did not comprehend the
standards for admission ofhearsay evidence under either the business or public records exceptions
26 to the hearsay rule. Those exceptions only apply to the introduction of a writing containing hearsay statements, not oral statements perceived while performing official duties. See Fed. R. Evid. §
27 803(6), (8) (pertaining to admission of a "memorandum, report, record, or data compilation"); Cal. Evid. Code §§ 1271, 1280 (permitting admission of "[e]vidence of a writing"). Such errors are
28 perhaps unsurprising, granted the scant training that DCs have had on the issue. See generally
Stewart Dec. W2-6,8-9.
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1 trustworthy, testimony of fearful witnesses, or any other hearsay statements should be

2 exempt from the confrontation requirement in parole revocation hearings.

3

The Ninth Circuit has applied the Morrissey conditional confrontation right using a

4 balancing test. In United States v. Simmons, 812 F.2d 561 (9th Cir. 1987), the Ninth Circuit

5 noted that the Supreme Court's decisions in Morrissey and Gagnon v. Scarpelli, 411 U.s.

6 778 (1973), "delineate a process of balancing the probationer's right to confrontation

7 against the Government's good cause for denying it." Simmons, 812 F.2d at 564. The

8 balancing approach set forth in Simmons formed the foundation for subsequent

9 confrontation disputes in the revocation context.

10

In United States v. Martin, 984 F.2d 308 (9th Cir. 1993), the Ninth Circuit again

11 emphasized the Morrissey confrontation rights, noting that a supervised release& must

12 "receive a fair and meaningful opportunity to refute or impeach the evidence against him."

13 Martin, 984 F.2d at 310. In Martin, the supervised releasee contended that the court's

14 refusal to allow him to retest urine samples deprived him of the right to confrontation.

15 Citing Simmons, the Ninth Circuit applied a balancing approach and agreed with the

16 releasee. Martin, 984 F.2d at 314. As in Simmons, the proper approach to the violation ofa

17 parolee's confrontation right was a balancing test; the court recognized no exception based

18 on "trustworthy" evidence. Indeed, the Martin court noted that, although a urinalysis may

19 be fairly trustworthy, a trustworthiness rule "would be tantamount to abandonment of the

20 Simmons balancing test." Martin, 984 F.2d at 313. It would "effectively hold that the

21 weight of the defendant's right to confrontation is irrelevant in revocations" that involve

22 trustworthy evidence. Id. The Ninth Circuit also adhered to the balancing approach four

23 years later in United States v. Walker. See 117 FJd 417, 420-21 (9th Cir. 1997) (balancing

24 releasee's right to confrontation against government's good cause for denying it and noting

25 that "[u]pon conducting the balancing test enunciated in Martin, reliable hearsay evidence

26 may be admitted").

27
1 "Parole, probation, and supervised release revocation hearings are constitutionally 28 indistinguishable and are analyzed in the same manner." United States v. Hall, 419 F.3d 980,985
nA (citing Comito, 177 F.3d at 1170). -9-
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1

B. Under United States v. Comito, the Hearing Officer Must Balance an

Individual's Confrontation Rights Against the Government's Good

2

Cause for Denying that Right.

3

The seminal case in the Ninth Circuit on confrontation in revocation hearings is

4 United States v. Comito, 177 F.3d 1166 (9th Cir. 1999). In that case, Robert Comito's

5 supervised release was revoked on four charges: three grade C violations and one more

6 serious grade B violation. See Comito, 177 F.3d at 1167-68. The grade B violation,

7 unlawful use of his ex-girlfriend's bank cards, credit cards, and checks without her

8 permission, was sustained purely on the basis of hearsay evidence. See id. at 1168.

9 Comito's probation officer, Officer Perdue, testified that Comito's ex-girlfriend had told

10 Perdue that Comito had used the cards and checks without her permission. See id.

11 Corroborative evidence that, alone, was insufficient to sustain the alleged violation was also

12 presented. See id. at 1168-69, 1172.

13

The Comito court stated that, "in determining whether the admission of hearsay

14 evidence violates the releasee's right to confrontation in a particular case, the court must

15 weigh the releasee's interest in his constitutionally guaranteed right to confrontation against

16 the Government's good cause for denying it." Id. at 1170 (citing Walker, 117 F.3d at 420)

17 (emphasis added). The parolee's interest in confrontation is based on two primary factors.

18 First, the more important a piece of evidence is to a particular finding, the more important it

19 is that the parolee be given an opportunity to demonstrate that the proffered evidence does

20 not reflect verified fact. Id. at 1171. Second, the less reliable the particular hearsay

21 evidence is, the greater the parolee's interest in confronting that evidence. Id. ("Unsworn

22 verbal allegations are, in general, the least reliable type of hearsay ....").

23

Then, the government's good cause for denying confrontation is assessed. In the

24 Comito case, "no cause [was] shown for denying Comito his confrontation rights-there is

25 nothing at all to put on the Government's side of the scale." Id. at 1172. As in Morrissey,

26 Simmons, Martin, and Walker, the message is clear: when a releasee or parolee objects to

27 the admission of hearsay in a revocation hearing, the court must balance the individual's

28 confrontation rights against the government's good cause. -10-
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1

Nowhere did the Comito court suggest that "trustworthy" hearsay evidence is an

2 exception to the rule. In fact, the government made that argument, and the Comito court

3 rejected it.

4

The Government also argues that, even absent a showing of

5

difficulty in obtaining [the girlfriend's] testimony, the hearsay evidence bears sufficient indicia of reliability, by virtue of the other testimony and

6

evidence presented at the hearing, to make it admissible. Given the

substantial nature of Comito's interest in confrontation and the absence of

7

good cause for the Government's failure to produce the adverse witness, the

8

supporting or corroborative evidence noted by the Government cannot

suffice to deprive Comito of his constitutional right to confrontation.

9

10 Id. at 1172 & n.9.

11

C. Subse'Juent Holdings of the Ninth Circuit Dutifully Follow Comito,

Applymg the Prescribed Balancing Approach.

12

13

The federal cases over the eight years that have elapsed since Comito reaffirm its

14 approach. See generally United States v. Littlesun, 444 F.3d 1196, 1200 (9th Cir. 2006)

15 (noting that Morrissey v. Brewer "expressly held that a parolee is entitled to cross-examine

16 witnesses at a revocation proceeding, subject to balancing certain factors" (internal footnote

17 omitted»; United States v. Stanfield, 360 F.3d 1346, 1359 (D.C. Cir. 2004) (noting that,

18 where an objection is raised to hearsay evidence, courts are "obliged to conduct a balancing

19 test, weighing [the releasee's] right to confront the declarant against the government's

20 asserted grounds for foregoing confrontation"). The Federal Rules of Criminal Procedure

21 that apply to revocation of federal supervised release-a procedure that is "constitutionally

22 indistinguishable" from parole revocation, see Hall, 419 F.3d at 985 n.4-codify the same

23 approach and cite Morrissey, Walker, and Comito. See Fed. R. Crim. P. 32.l(b)(2)(C) &

24 Advisory Committee Note to 2002 Amendment ("[T]he court should apply a balancing test

25 at the hearing itself when considering the releasee's asserted right to cross-examine adverse

26 witnesses. The court is to balance the person's interest in the constitutionally guaranteed

27 right to confrontation against the government's good cause for denying it.").

28

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1

The Ninth Circuit's most detailed examination of a Comito-type issue was in United

2 States v. Hall, 419 F.3d 980 (9th Cir. 2005). Although the Hall court discussed hearsay

3 exceptions with respect to the reliability of the evidence, two very important points should

4 be emphasized. First, the Hall court dutifully followed the balancing framework set forth in

5 Comito, and heavily cited and reaffirmed the teachings of both Comito and Morrissey.

6 Second, the Hall court discussed federal hearsay exceptions to the extent that they bolstered

7 the reliability of the evidence, thereby reducing the releasee's confrontation interest within

8 the Comito-balancing test, but not substituting for or excusing the balancing test.

9

The appellant in Hall appealed the revocation of his supervised release because he

10 claimed, among other things, that he was denied his due process confrontation rights by the

11 admission of hearsay statements regarding two charges against him: domestic violence and

12 false imprisonment. See Hall, 419 F.3d at 986-89. The Hall court examined each charge

13 under the Comito framework in turn. On the domestic violence charge, the court held that

14 "[t]he nonhearsay evidence at the hearing was substantial and sufficient to conclusively

15 prove the domestic violence charge." Id. at 986. Because the domestic violence charges

16 were supported by competent nonhearsay evidence, the hearsay statements were of low

17 importance to the ultimate finding, reducing Hall's interest in confronting them.

18

On the false imprisonment charge, the court found that Hall's interest in

19 confrontation was higher than it was for the domestic violence charge because the hearsay

20 statements (unsworn verbal allegations) were the primary evidence on the charge. Id. at

21 987. The court noted, however, that the victim statements were partially corroborated by

22 competent evidence (discovery of a golf club allegedly used in the offense where the victim

23 had stated it would be, confronted testimony from an eyewitness to the encounter between

24 Hall and the victim, photographs of bruises that the victim sustained that were consistent

25 with her statements, and confronted testimony from a doctor regarding the bruises sustained

26 by the victim), and therefore could be considered more reliable than uncorroborated

27 unsworn verbal allegations. Id. at 987-88.

28

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1

But the court did not stop there. It expressly stated that reliability alone does not end

2 the inquiry, and proceeded to examine the government's good cause for not producing the

3 witness. Id. at 988 ("Simply because hearsay evidence bears some indicia of reliability does

4 not render it admissible. See Martin, 984 F.2d at 313-314 (even urinalysis testing

5 conducted by a laboratory is not sufficiently reliable to create a blanket rule that releasee

6 has no interest in contesting the results). Hall's otherwise strong interest in confrontation is

7 somewhat lessened by the reliability of the hearsay evidence, but it is not defeated."}. After

8 examining the government's extensive attempts to find the victim and bring her to the

9 hearing, the court held that Hall's "interest in confronting [the witness]" was "outweighed

10 by the government's good cause for not producing [the witness]." Id. at 989. It is clear that

11 the Hall court engaged in Comito balancing for both charges.

12

The outcome was different than that in Comito and other cases because the

13 government presented copious evidence at the hearing to establish good cause for the

14 hearsay declarant's absence. The hearsay declarant, Susan Hawkins, was a homeless

15 woman who left the shelter where she had been staying without providing forwarding

16 information. See id. at 988. The government even tried running Hawkins's social security

17 number and birth date to attempt to ascertain her location. See id. As the Hall court stated,

18 "[t]his effort stands in stark contrast to cases where we have found that the government did

19 not have good cause for failing to produce a witness. See, e.g., Comito, 177 F.3d at 1172."

20 See id.

21

The Hall court's discussion of hearsay exceptions was only relevant to its Comito

22 balancing, and did not constitute the announcement of a new rule to elevate hearsay

23 exceptions above the confrontation right. See Hall, 419 F.3d at 987. Indeed, hearsay

24 exceptions are often relevant to a Comito analysis of the parolee's confrontation interest. If

25 the out-of-court statement bears indicia of reliability, the parolee's interest in confronting

26 the evidence decreases. One example of reliability may be whether an out-of-court

27 statement falls within a recognized reliability-based hearsay exception. See Comito, 177

28 F.3d at 1171 ("[T]he more subject to question the accuracy and reliability of the proffered -13-
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1 evidence, the greater the releasee's interest in testing it by exercising his right to

2 confrontation."). But the Comito balancing must still occur.

3

Though hearsay exceptions may be relevant to a Comito balancing, they do not

4 render hearsay per se admissible. The Hall court considered the relevant indicia of

5 reliability, and then incorporated that into its Comito balancing. See id. (examining

6 "whether the government had good cause in failing to produce [the hearsay declarant], and

7 whether that good cause outweighs Hall's right to confrontation"). Indicia of reliability,

8 including hearsay exceptions, diminish a parolee's confrontation interest, but do not erase it.

9 See id. ("Simply because hearsay evidence bears some indicia of reliability does not render

10 it admissible. Hall's otherwise strong interest in confrontation is somewhat lessened by the

11 reliability of the hearsay evidence, but it is not defeated.").

12

The holdings in Hall are unmistakable. First, as to the domestic violence violation,

13 "Hall's interest in excluding hearsay evidence was thus weak, especially when weighed

14 against the government's good cause for not producing Hawkins." Id. at 987. Second, as to

15 the false imprisonment violation, "[a]lthough Hall had a strong interest in confronting

16 Hawkins ... , that interest is outweighed by the government's good cause for not producing

17 Hawkins as a witness." Id. at 989. As to both charges, the court conducted a Comito

18 balancing.

19

D. Other Administrative Cases, Statutes, and Regulations Reaffirm the

Principle that Confrontation is Central, even Outside of Criminal

20

Law.

21

Cases arising from several other types of administrative proceedings support the

22 conclusion that confrontation rights are distinct from hearsay exceptions. One particularly

23 illustrative example because of its similarities to parole revocation is confrontation in civil

24 immigration cases. As in parole revocation cases, the rules of evidence do not apply in

25 immigration hearings, see Hernandez-Guadarrama v. Ashcroft, 394 F.3d 674,681 (9th Cir.

26 2005), and an immigrant's confrontation rights are based on the Fifth Amendment's Due

27 Process Clause, see Zadvydas v. Davis, 533 U.S. 678,693 (2001). Governing regulations in

28 both the immigration and parole context permit the examination of adverse witnesses. See 8 -14-
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1 C.F.R. 1240.10(a)(4) (granting immigrant "reasonable opportunity ... to cross-examine

2 witnesses presented by the government"); Cal. Code Regs. tit. 15, § 2643 (permitting

3 parolee "to question all witnesses").

4

The Ninth Circuit has made clear in the immigration context that the government

5 does not have an "unfettered" choice of whether to present a witness or a hearsay statement

6 to prove a particular fact. See Saidane v. INS, 129 F.3d 1063, 1065 (9th Cir. 1997). Instead,

7 "the INS may not use an affidavit from an absent witness unless the INS first establishes

8 that, despite reasonable efforts, it was unable to secure the presence of the witness at the

9 hearing." Hernandez-Guadarrama, 394 F.3d at 681 (internal quotation omitted).

10 Furthermore, the mere sending of a subpoena to the adverse witness "cannot suffice to

11 satisfy the government's obligation to make reasonable efforts to produce its witnesses."

12 Saidane, 129 F.3d at 1065. That type of effort is "fundamentally unfair" and "shift[s] the

13 burden of producing [government] witnesses onto the alien." Id. (internal citations and

14 quotations omitted).

15

The same principles of confrontation and cross-examination exist throughout myriad

16 areas of administrative law. See, e.g., 45 C.F.R. § 205.10(a)(13)(vi) (granting welfare

17 claimants the right "[t]o question or refute any testimony or evidence, including opportunity

18 to confront and cross-examine adverse witnesses"); 42 C.F.R. § 431.242(e) (permitting

19 Medicaid recipient to "[q]uestion or refute any testimony or evidence, including opportunity

20 to confront and cross-examine adverse witnesses" before Medicaid benefits are taken

21 away); 2 C.F.R. § 180.745(a)(I) (allowing Social Security recipient to "present witnesses

22 and other evidence, and confront any witness presented" before being subject to

23 nonprocurement debarment or suspension); 8 C.F.R. § 1240.10(a)(4) (permitting

24 immigrants "to present evidence in his or her own behalf and to cross-examine witnesses

25 presented by the government" in removal hearings); see also 5 C.F.R. § 919.840(a)(I)

26 (guaranteeing confrontation in Civil Service suspension hearings); 28 C.F.R. § 45.3(d)(3)

27 (guaranteeing confrontation in Department of Justice disciplinary proceedings); 22 C.F.R. §

28

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1 51.85 (guaranteeing confrontation in hearings regarding the cancellation, denial, or

2 revocation of a United States passport pursuant to 22 U.S.C. § 2714).

3

E. Recent California Cases Support the Federal Case Law Position.

4

The Valdivia Permanent Injunction plainly states that the admission of hearsay

5 evidence in parole revocation proceedings is governed by Comito. See Valdivia Permanent

6 Injunction ~ 24. However, even the persuasive California authority supports the Comito

7 balancing approach.1 At least two recent state court cases involving hearsay in revocation

8 proceedings make clear that "[t]here is ... no justification for failing to undertake [a

9 balancing] analysis." In re Miller, 52 Cal. Rptr. 3d 256, 266 (Cal. Ct. App. 2007); People v.

10 Shepherd, 60 Cal. Rptr. 3d 616 (Cal. Ct. App. 2007).

11

In re Miller arose from a parole revocation hearing under Valdivia procedures in

12 which the Board of Parole Hearings ("BPH") "relied on unsworn hearsay statements

13 without determining either the unavailability of the declarant or the reliability of the hearsay

14 evidence." In re Miller, 52 Cal. Rptr. 3d at 258. The Miller court cited Morrissey and

15 Comito, as well as the California Supreme Court's decision in People v. Arreola, 7 CalAth

16 1144 (1994), for the proposition that courts must "balanc[e] the defendant's need for

17 confrontation against the prosecution'S showing of good cause for dispensing with

18 confrontation." Arreola, 7 Cal.4th at 1160. The Miller court noted that "[t]here is also no

19 justification for failing to undertake [a balancing] analysis," and that "the hearing officer's

20 failure to weigh the State's need for hearsay versus petitioner's right of confrontation cannot

21 be considered harmless error." In re Miller, 52 Cal. Rptr. 3d at 266-67.

22

The probationer's circumstances in People v. Shepherd were remarkably similar to

23 those of Parolee 2 above. In Shepherd, a program administrator ofa substance abuse

24 program for probationers made out-of-court statements to Scott Shepherd's probation

25 officer that Shepherd had smelled of alcohol and had been asked to leave the treatment

26 1 Although these California cases support plaintiffs' position, they are only persuasive. It
27 cannot be disputed that United States v. Comito governs this issue under the federal 28 constitution, and as stipulated by the parties in paragraph 24 of the Valdivia Permanent
Injunction. -16-
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1 program. See Shepherd, 60 Cal. Rptr. 3d at 618-19. The program administrator did not

2 testify, and the probation officer introduced her statements through hearsay evidence

3 without making a showing of good cause for her absence. See id. at 622-23. The Court of

4 Appeal "ha[d] no difficulty concluding that, as in Arreola and Winson, no showing of good

5 cause has been made for relying on [the probation officer's] hearsay or double hearsay

6 testimony in lieu oflive testimony." Id. at 623.

7

These California cases are in line with the federal constitutional principle that

8 confrontation is one of the fundamental pillars of our justice system. As the United States

9 Supreme Court stated in one administrative case,

10

In almost every setting where important decisions tum on questions

of fact, due process requires an opportunity to confront and cross-examine

11

adverse witnesses. . .. [I]t is even more important where the evidence

12

consists of the testimony of individuals whose memory might be faulty or

who, in fact, might be perjurers or persons motivated by malice,

13

vindictiveness, intolerance, prejudice, or jealousy.

14 Goldberg v. Kelly, 397 U.S. 254, 269-70 (1970). Defendants' attempt to dispense with a

15 parolee's limited confrontation rights would place in jeopardy the confrontation right that

16 the "[Supreme] Court has been zealous to protect." Id.

17 II. 18

Hearsay Evidence Statements that Cannot be Admitted Under Comito Do Not Become Admissible When They are "Corroborated" by Other Inadmissible Hearsay Evidence.

19

As demonstrated in the second revocation hearing of Parolee 3 above, hearing

20 officers sometimes admit hearsay because it is corroborated by other hearsay, reasoning that

21 such corroboration renders hearsay more reliable. That logic is flawed. Indeed, using

22 hearsay evidence to support other hearsay does not increase reliability: "[r]ather than

23 providing a strong indication of the hearsay testimony, adopting such a criterion would

24 eviscerate the need to provide indicia of reliability before hearsay evidence is received." In

25 re Miller, 52 Cal. Rptr. 3d at 264.

26

As set forth above, the governing cases on this point are clear: any time a hearsay

27 statement is proffered as evidence in a revocation hearing, "the court must weigh the

28 releasee's interest in his constitutionally guaranteed right to confrontation against the -17-
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Government's good cause for denying it." Comito, 177 F.3d at 1170. The hearing officer

2 must conduct the Comito balancing for each hearsay statement, considering the importance

3 of each hearsay statement to the ultimate finding and the nature of the facts to be proven by

4 each piece of hearsay evidence. Id at 1171. Ifa statement is admitted after a Comito

5 balancing, it-like non-hearsay evidence-may then be used to corroborate other

6 statements. See, e.g., Hall, 419 F.3d at 987-88 (supporting victim Hawkins's hearsay

7 statement with corroborative evidence including testimony at the revocation hearing from a

8 live eyewitness to the events in question, nonhearsay physical evidence (a golf club),

9 nonhearsay pictures of physical bruising authenticated by a live witness, and the defendant's

10 own statement to police). Hall illustrates the correct approach to corroboration of hearsay

11 evidence: to become reliable, a hearsay statement must be corroborated by extrinsic

12 evidence, rather than by other hearsay statements in the same report or sponsored by the

13 same witness.

14

The reliance on extrinsic non-hearsay evidence to corroborate hearsay evidence finds

15 support in other areas oflaw. In United States v. Huckins, 53 F.3d 276 (9th Cir. 1995), a

16 case involving the reliance on hearsay statements at criminal sentencing, the court held that,

17 to avoid reliance on materially incorrect information, "we require that some minimal indicia

18 of reliability accompany a hearsay statement." Id at 279 (citing United States v. Petty, 982

19 F.2d 1365, 1369 (9th Cir. 1993)). With respect to making a hearsay statement more

20 reliable, the government must offer "extrinsic evidence." Id; see also United States v.

21 Egge, 223 F.3d 1128, 1132 (9th Cir. 2000) (same). Extrinsic evidence must be separate

22 evidence that, standing alone, is trustworthy enough to bolster the credibility of the hearsay

23 evidence. Reliance on separate hearsay statements to corroborate a hearsay statement

24 provides no outside verification, and indeed compounds the nature of the confrontation

25 violation. See In re Miller, 52 Cal. Rptr. 3d at 264.

26

Either a hearsay statement is admitted over a defendant's or parolee's right to

27 confront, or it is not. In that regard, admitted evidence is given value as evidence and

28 excluded evidence is not. The excluded evidence cannot-no matter how many statements -18-
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are proffered-be aggregated to reach the threshold for admission if it has failed the test of

2 admissibility. This would be akin to saying that 0 + 0 + 0 + 0 1.

3

The admission of hearsay statements in Parolee 3's second revocation hearing served

4 only to exacerbate the gravity of the violation of his confrontation rights: instead of merely

5 admitting one hearsay statement in violation of the Comito rule, the hearing officer

6 considered three additional hearsay statements to conclude that the first piece of hearsay

7 evidence was reliable. Both Comito and common sense dictate that this approach is legally

8 unsound.

9 III. A Parolee Should Never be Put to Choosing Between a Timely Hearing and

Confronting His Accuser: If a Comito Objection is Sustained and the 35~Day

10

Deadline is Imminent, the Hearsay Evidence Must be Excluded.

11

In Parolee 3's first revocation hearing, he raised a Comito objection to the admission

12 of hearsay statements in violation of his confrontation rights. The hearing officer sustained

13 the objection. Instead of excluding the proffered hearsay statements and holding the timely

14 hearing, however, the hearing officer postponed the hearing beyond the 35-day deadline set

15 forth in Paragraph 23 of the Valdivia Permanent Injunction. In so doing, the DC put the

16 parolee to the choice of either having a timely hearing or being permitted to confront his 17 accusers.~ There is no legal basis for this approach that violates Comito and constitutes an

18 end-run around the timeframes in the Valdivia Permanent Injunction.

19

The 35-day timeframe set forth in paragraph 23 of the Valdivia Permanent Injunction

20 represents the Court-ordered maximum period of time during which a parolee may remain

21 in custody pending revocation without offending the parolee's due process rights. Thus, if a

22 parolee is faced with choosing between a violation of the Valdivia timeframe and the ability

23 to confront his accuser, the choice pits one violation of due process against another.

24 Whatever choice a parolee makes, constitutional injury accrues.

25

26
~ Although this practice appears to occur in all classes of cases, it is particularly rampant in cases
27 that defendants deem "priority cases" involving more serious charges. In "priority cases,"
defendants have more regularly and brazenly violated the 35-day rule in Paragraph 23, seldom if 28 ever dismissing charges for the timeframe violation. Whether discussing priority cases or
otherwise, there is no legal basis for this unprincipl~Y9~lle.
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1

The approach taken in Parolee 3's case renders Comito's admissibility rule

2 meaningless. That is, if a witness fails to appear for a parolee's revocation hearing, the

3 hearing officer could decline to exclude the hearsay evidence indefinitely, postponing the

4 hearing over and over until the percipient witness appeared. A simple failure to appear

5 without more reason must not justify the postponement of a hearing. Instead, the

6 government must be put to its burden to show "good cause" for failing to produce the

7 witness, as required by Comito. Absent a showing of good cause, the government can try to

8 introduce the out-of-court statements through hearsay testimony, but if the hearsay does not

9 satisfy the Comito balancing test, the evidence is excluded and-in some cases-revocation

10 charges will be dismissed.

11

This outcome is just. It is the parole agent's responsibility to communicate with

12 adverse witnesses whose testimony will be advanced to meet the agent's burden to sustain a

13 violation. An adverse witness's failure to attend must not be at the expense of the parolee's

14 due process rights.

15 IV. The Systemic Violation of Confrontation Rights Requires A Comprehensive Remedy That Includes an Effective Means of Challenging Future Violations.
16

17

This motion was made necessary by defendants' defiance of due process and the

18 Permanent Injunction. As the Special Master's reports note, however, defendants have

19 performed inconsistently in ensuring that hearing officers' respect parolee's confrontation

20 rights. Plaintiffs' observations and correspondence have documented numerous instances

21 where hearing officers require parolees to waive time in order to be able to confront

22 witnesses against them. Although the state courts are in some cases willing to provide relief

23 on a writ of habeas corpus, appointed counsel provided under the Valdivia Permanent

24 Injunction are not compensated for writs or appeals. It is a rare parolee who can find

25 counsel who will enforce the parolee's confrontation rights beyond the revocation hearing

26 without compensation. See In re Miller, 52 Cal. Rptr. 3d 256. Given the defendants'

27 inconsistent track record on these issues, an effective remedy must include a means for

28 individual enforcement of rights by aggrieved class members. Plaintiffs' counsel cannot -20-
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1 efficiently provide such individual enforcement directly through this case. If appointed

2 parole defense counsel were adequately compensated for the task, they would be able to use

3 state habeas procedures to efficiently enforce individual confrontation rights. Defendants

4 have recognized the efficacy of this practice in resolution of a previous dispute regarding

5 so-called "confidential" information. See Huey Dec. ,-r 27 & Ex. 18. Defendants should be

6 ordered to modify their attorney panel contract to allow for reasonable compensation of

7 writs and appeals involving confrontation issues.

8

The funding of writs will serve multiple goals. First, it will permit parolees to

9 challenge problematic Comito outcomes and vindicate confrontation rights that have been

10 erroneously deprived. Second, it will produce decisions that will serve as guideposts to DCs

11 for future cases involving difficult fact patterns. With more decisions like In re Miller, 52

12 Cal. Rptr. 3d 256, and People v. Shepherd, 60 Cal. Rptr. 3d 616, guidance from State Court

13 judges will help take the guesswork out of defendants' Comito policy. Third, with the

14 eventuality of more decisions on confrontation issues resultant from writs, defendants will

15 be less reliant on plaintiffs' counsel to update and correct Comito policy. It will facilitate

16 defendants' self-regulation of Comito policy.

17

CONCLUSION

18

The Comito balancing test remains the controlling law as it was when the Injunction

19 was entered in this case. A revocation panel must weigh the releasee's interest in his

20 constitutionally guaranteed confrontation right against the government's good cause for a

21 witness's absence. Defendant's position that Comito balancing is unnecessary if the

22 proffered evidence falls within a hearsay exception runs contrary to over thirty years of case

23 law from the Ninth Circuit and the U.S. Supreme Court. Furthermore, prohibited hearsay

24 statements must not be admitted merely because they are corroborated by other prohibited

25 hearsay statements. Finally, parolees must not be put to choosing between a timely hearing

26 and confronting their accuser; the proper remedy for a sustained Comito motion is the

27 exclusion of the proffered hearsay evidence, regardless of the charges.

28

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1

Based on the foregoing, plaintiffs respectfully request that the Special Master

2 recommend that the Court: (1) order defendants to draft new policies and procedures, with

3 the cooperation of plaintiffs' counsel, as required by Paragraph 24 of the Valdivia

4 Permanent Injunction within 60 days of the Court's order, with full implementation 120

5 days after the Court's order, and that such policies and procedures be changed so that the

6 required Comito balancing test be applied even if the proffered out-of-court statements fall

7 within a hearsay exception; (2) order defendants to provide appropriate training to all DC's

8 concerning the revised policies and procedures within 90 days of the Court's order,

9 including sending all DCs to trainings for administrative law judges; and (3) order

10 defendants to modify their contract with the parole defense panel to provide for reasonable

11 compensation for representation ofparolees in writs and/or appeals concerning denial of

12 confrontation rights.

13
14 Dated: October 3, 2007

RESPECTFULLY SUBMITTED, ROSEN, BIEN & GALVAN, LLP

15

16

/s/ Loren G. Stewart

17

By: Loren G. Stewart

18

Attorneys for Plaintiffs

19

20

21

22

23

24

25

26

27

28

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Case 2:94-cv-00671-LKK-GGH Document 1398 Filed 02/25/08 Page 192 of 293

EDMUND G. BROWN JR. Attorney General ofthe State of California 2 JAMES M. HUMES Chief Assistant Attorney General 3 FRANCEST.GRUNDER
Senior Assistant Attorney General 4 ROCHELLE C. EAST
Supervising Deputy Attorney General
5 VICKIEP. WHITNEY, State BarNo. 145316 Supervising Deputy Attorney General
6 JESSICA R. DEVENCENZI, State Bar No. 232427 Deputy Attorney General
7 1300 I Street, Suite 125 P.O. Box 944255
8 Sacramento, CA 94244-2550 Telephone: (916) 445-4979
9 Fax: (916)324-5205
Email: Jessica.Devencenzi@doj.ca.gov 10
Attorneys for Defendants 11

12

IN THE UNITED STATES DISTRICT COURT

13

FOR THE EASTERN DISTRICT OF CALIFORNIA

14

15 JERRY VALDIVIA, et aI.,

16

Plaintiffs,

17

v.

18 ARNOLD SCHWARZENEGGER, et al.,

19

Defendants.

20

21

2:94-cv-0671 LKK GGH P
DEFENDANTS' OPPOSITION TO PLAINTIFFS' MOTION TO ENFORCE PARAGRAPH 24 OF THE VALDIVIA PERMANENT INJUNCTION
Hearing: November 9, 2007 Time: 9:30 a.m. Location: Office of Atty General Officer: Special Master Chase Riveland

22

23

24

25

26

27

28

Defs.' Opposition to Motion to Enforce Par. 24 of Perm. Inj.

2:94-cv-0671 LKK GOIl P

Case 2:94-cv-00671-LKK-GGH Document 1398 Filed 02/25/08 Page 193 of 293

TABLE OF CONTENTS

2

3 INTRODUCTION

4 ARGUMENT

5

I. HEARSAY SUBJECT TO A LONG-STANDING HEARSAY

EXCEPTION IS ADMISSIBLE IN REVOCATION HEARINGS

6

WITHOUT HAVING TO ENGAGE IN COMITO BALANCING

7

A. Comito's Balancing Test

8

B. Providing More Process And Restrictions To The Admissibility

Of Evidence In Parole Revocation Hearings Than Applies To

9

Criminal Prosecution Would Contravene Supreme Court And

Ninth Circuit Precedent

10

C. Practices In Administrative Proceedings Are Irrelevant To The

11

Issues Presented In This Motion

12

II. THE INDICIA OF RELIABILITY OF HEARSAY MAY BE

DETERMINED FROM OTHER HEARSAY EVIDENCE 13

III. DEFENDANTS HAVE NOT FORCED A CHOICE BETWEEN

14

THE VALVIDIA TIMELINE AND THE RIGHT TO

CONFRONTATION

15

IV. THE FOUR INDIVIDUAL CASES SELECTED BY PLAINTIFFS

16

DO NOT SUPPORT THEIR CONTENTION THAT DEFENDANTS

ARE VIOLATING PAROLEE'S DUE PROCESS RIGHTS OR THAT

17

DEFENDANTS ARE RUNNING AFOUL OF COMITO

18

A. Parolee #1

19

B. Parolee #2

20

C. Parolee #3

21

D. Parolee #4

22

V. THERE IS NO BASIS TO REQUIRE DEFENDANTS TO FUND

LEGAL REPRESENTATION FOR PAROLEES ON WRITS OR

23

APPEALS INVOLVING COMITO

24 CONCLUSION

25

26

27

28

Page
2
2 3
4 9 9
12
13 14 15
16 16
17 17

Def..: Opposition to Motion to Enforce Par. 24 of Perm. Inj.
i

2:94-cv-0671 LKK GGH I'

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TABLE OF AUTHORITIES

2

3 Cases

4 Baxter v. Palmigiano

425 U.S. 308 (1976)

5

Idaho v. Wright

6

497 U.S. 805,817 (1990)

7 Mempa v. Rhay

389 U.S. 128 (1967)

8

Morrissey v. Brewer

9

408 U.S. 471, 489 (1972)

10 Prellwitz v. Berg

578 F.2d 190 (7th Cir. 1978)

11

Ryan v. Montana

12

580 F2d 988, 992 (9th Cir. 1978)

13 Gagnon v. Scarpelli

411 U.S. 778, 786 (1973)

14

United States v. Comito

15

177 F.3d 1166 (9th Cir. 1999)

16 United States v. Hall

419 F.3d 980, 987 (2005)

17

United States v. Martin

18

984 F.2d 308, 311 (9th CiT. 1993)

19 United States v. Miller

514 F.2d 41 (9th Cir. 1975)

20

United States v. Segal

21

549 F.2d 1293 (9th Cir. 1977)

22 United States v. Simmons

812 F.2d 561 (91h Cir. 1987)

23

United States v. Walker

24

117 F.3d 417,421 (91h Cir. 1997)

25 White v. Illinois

502 U.S. 346, 356 (1992)

26

Wolffv. McDonnell

27

418 U.S. 539 (1974)

28

Defs.' Opposition to Motion to Enforce Par. 24 of Perm. Inj.
ii

Page
5
5 3-7, II, 17
7,9 5,12 4,7,8,9,11,17 Passim 6,10,11,15,17 3,8 6,8,9, 12
5 7,8,9 6,8.9
6 5
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INTRODUCTION

2

Paragraph IV, 24 of the Stipulated Order For Permanent Injunctive Relief, states that "[tlhc

3 use of hearsay evidence shall be limited by the parolees' confrontation rights in the manner set 4 forth under controlling law as currently stated in United States v. Comito, 177 F.3d 1166 (9th Cir.

5 1999)." During the past few months, the parties, in conjunction with Special Master Riveland

6 and Deputy Special Master Morrison, have engaged in efforts to resolve various aspects of how

7 Comito is to be applied during the course of parole revocation hearings and, despite having come

8 to agreement on various aspects of its application, the parties have been unable to reach full

9 agreement. Thus, the parties agreed to submit their legal positions to the Special Master in

10 accordance with procedures outlined at paragraph IV of the Stipulation and order Re: Special

I I Master Order of Reference.

12

Plaintiffs have filed their motion for enforcement of paragraph 24 of the Permanent

13 Injunction, characterizing the dispute as Defendants having violated the Permanent Injunction

14 and violating parolees' due process rights. Defendants have done neither and have in fact

15 complied with what the case law permits concerning Comito balancing and the role of hearsay

16 exceptions in that process. While there may be isolated incidents where the balancing may not

17 have been entirely correct, such incidents have been few in number, have not resulted in anything

18 other than harmless error, and do not translate into a broad-sweeping conclusion that the

19 Defendants have violated the Permanent Injunction or the due process rights of parolees.

20

Moreover, Plaintiffs' use of four purported examples as representative that Defendants arc

21 globally depriving parolees of due process is misleading and inaccurate. The hearing transcripts

22 submitted by Plaintiffs contain many inaudible portions that the transcriber did not transcribe,

23 and further demonstrate that the Deputy Commissioners did not fail in their task. Plaintiffs'

24 selective use of four hearings out of the entire panoply of revocation hearings as purporting to

25 support the serious allegation that Defendants are denying due process to all, is faulty under any

26 standard.

27 III

28 III

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The major point of disagreement between Plaintiffs and Defendants has been the role of

2 hearsay exceptions in the context of Comito balancing. Plaintiffs contend that hearsay

3 exceptions cannot be used for the admission of evidence in parole revocation proceedings (Pltf.

4 Mot. at 2) and that even for hearsay that falls within a long-standing exception, Comito balancing

5 is stil1 required for it to be admissible. In contrast, Defendants' position is that where a long-

6 standing exception to the hearsay rule would compel the admissibility of a piece of hearsay in a

7 criminal prosecution, that same evidence is equally admissible in a revocation hearing without

8 having to engage in full Comito balancing. Simply put, CDCR, and specifically the Deputy

9 Commissioners presiding over the revocation hearings, can avail themselves of long-standing

10 hearsay exceptions, if they so choose, for the admissibility ofhearsay, without having to run

11 through a full Comito balancing, because the exception automatically establishes good cause to

J2 deny the right to confront due to the inherent indicia ofreliability.

13

ARGUMENT

14

Plaintiffs' motion sets forth three issues they seek to have resolved: (1) whether hearsay

15 exceptions obviate the requirement to do Comito balancing; (2) whether in determining

16 admissibility of a piece of hearsay evidence, other hearsay evidence may be considered; and (3)

17 whether the continuation of a revocation hearing beyond the 35-day time under the

18 Valdivia injunction in order to pennit witnesses to be subpoenaed is permissible. Defendants'

19 position is that the answer to the first two questions above is "yes." As to question three, the only

20 evidence submitted by Plaintiffs on this issue does not involve a confrontation between two

21 constitutional principles and no other evidence is submitted to support Plaintiffs' contention that

22 Defendants are forcing parolees to choose between rights. Thus, no resolution of that issue is

23 required.

24 I. Hearsay Subject to a Long-Standing Hearsay Exception Is Admissible in Revocation Hearings Without Having to Engage in Comito Balancing.
25

26

In 2003, Defendants agreed under the Stipulated Order For Permanent Injunctive Relief

27 (Permanent Injunction), to limit the use of hearsay in revocation hearings in the manner set forth 28 under controlling law as then stated in United States v. Comito, 177 F.3d 1166 (9th Cir. 1999) -

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they did not agree to a complete bar to the use of long-standing hearsay exceptions for

2 admissibility purposes nor to have imposed on them a standard significantly beyond what the law

3 reqUIres.

4

A. Comito's Balancing Test

5

Defendants do not dispute that Morrissey v. Brewer, 408 U.S. 471,489 (1972), guarantees

6 the right to confront and cross-examine adverse witnesses at a parole revocation hearing, unless

7 the government shows good cause for not producing the witnesses. Comito, at 1170. To

8 determine "whether the admission of hearsay evidence violates the releasee's right to

9 confrontation in a particular case, the court must weigh the releasee's interest in his

10 constitutionally guaranteed right to confrontation against the Government's good cause for

11 denying it." [d. The significance of the releasee's interest in the right to confrontation is assess<.:d

12 first. [d. at 1171. And while every releasee has the right to confrontation, "that right is not static.

13 but is of greater or lesser significance depending on the circumstances. (citation)." [d.

14 Comito points to two factors that are important but not exhaustive when weighing an individual's

15 right to confrontation: "the importance of the hearsay evidence to the court's ultimate finding and

I 6 the nature of the facts to be proven by the hearsay evidence." [d. The Ninth Circuit in United

17 States v. Martin, 984 F.2d 308, 311 (9th Cir. 1993), sets up a sliding scale: the more significant

18 the evidence is to the finding, and the more questionable as to reliability, the greater the intcrest

19 in testing it through confrontation. [d. If a parolee can show that the hearsay at issue was

20 significant towards proving the violation and that it is not reliable, then the government is calkd

21 upon to show good cause for not producing the witness. Comito, at 1172.

n

The reasons that may constitute good cause for denying a releasee his right to confrontation

23 in a revocation hearing are considered on the specific circumstances of each case. [d. The

24 difficulty and expense of procuring witnesses (mere inconvenience or expense may be enough)

25 and the traditional indicia of reliability borne by the evidence are factors in determining the

26 government's good cause. [d.

27 / 1/

28 / / /

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As between Defendants and Plaintiffs here, there appears to be no dispute as to the elements

2 of Comito's balancing. However, while Comito discussed and applied the aspects of its

3 balancing approach in the context of the circumstances before it, Comito should not be read as an

4 abstract answer to questions not presented in the case, but rather as a resolution of the issue the

5 court said it was examining: U[o]nly Officer Perdue's testimony regarding what Connell

6 purportedly told him is at issue in this appeaL" Comito, at 1169. While Comito sets up a

7 balancing test for pure hearsay, it does not in any way discuss what happens when a hearsay

8 exception becomes part ofthe equation. Plaintiffs contend that nowhere in Comito did the court

9 suggest that trustworthy hearsay evidence is an exception to the rule. (Pltf. Mot. at II.) Simply

J0 put, the court was not confronted with nor did it decide whether hearsay that is admissible under

11 a long-standing exception negates the balancing the court deemed appropriate for pure hearsay.

12

B. Providing More Process and Restrictions to the Admissibility of Evidence in

Parole Revocation Hearings Than Applies to Criminal Prosecutions Would

13

Contravene Supreme Court and Ninth Circuit Precedent.

14

There are some fundamental underpinnings to Defendants' position with regard to the use of

15 hearsay exceptions in revocation proceedings. First, Defendants have never disputed that

16 parolees and probationers have a limited right to confront and cross-examine adverse witnesses <It

17 revocation hearings. Morrissey, at 489 (1972); Gagnon v. Scarpelli, 411 U.S. 778, 786 (1973).

18 In Morrissey, the Supreme Court discussed the "minimum requirements of due process"

19 applicable in a parole revocation hearing. Morrissey, at 487- 89. The Court held that one of

20 those due process requirements is "the right to confront and cross-examine adverse witnesses

21 (unless the hearing officer specifically finds good cause for not allowing confrontation)." Jd. at

22 489; see also Gagnon, at 781-87 (holding that the same due process requirements apply in

23 probation revocation proceedings as in parole revocation proceedings).

24

However, the Supreme Court has been equally clear that a revocation proceeding is nol to be

25 equated to a criminal prosecution in any sense. Morrissey, at 489. In other words, the

26 constitutional standard applicable in this type of post-conviction revocation hearing will

27 sometimes permit the admission of evidence that would otherwise be inadmissible in a criminal

28 prosecution. ld. Specifically, the Supreme Court in Morrissey stated that revocation "is a narrow

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1 inquiry," and that "the process should be flexible enough to consider evidence including letters,

2 affidavits, and other material that would not be admissible in an adversary criminal trial." Jd.

3

In addition, the Supreme Court has also emphasized that while in some cases there is simply

4 no adequate alternative to live testimony, the court in Morrissey did not "intend to prohibit usc

5 where appropriate of the conventional substitutes for live testimony, including affidavits,

6 depositions and documentary evidence." Gagnon, 411 U.S. at 782, n.5.

7

The Ninth Circuit in United States v. Segal, 549 F.2d 1293 (9th Cir. 1977), cert. denied, 431

8 U.S. 919 (1977), has noted that the Supreme Court has provided guidance in a number of

9 decisions concerning what process is due in proceedings along a continuum starting with

10 criminal prosecutions and ending with the correctional process. The Ninth Circuit divided that

11 continuum into four types of proceedings where the Court has required differing levels of due

12 process. In descending order of the amount of process which is due, from greater to lesser, arc:

13 "( 1) criminal prosecutions, e.g., Boykin v. Alabama, supra; (2) probation revocation hearings

14 with imposition ofa sentence theretofore suspended, e.g., Mempa v. Rhay, 389 U.S. 128 (1967):

15 (3) probation revocation hearings with the sentence already established and parole revocation

16 hearings, e.g., Morrissey v. Brewer, 408 U.S. 471 (1972) and Gagnon v. Scarpelli, 411 U.S. 77'cl

17 (1973); and (4) prison disciplinary proceedings, e.g., Woljfv. McDonnell, 418 U.S. 539 (1974)

18 and Baxter v. Palmigiano, 425 U.S. 308 (1976)." Segal, 549 F.2d at 1296.

19

And the Ninth Circuit has held that in a combined probation revocation and deferred

20 sentencing hearing that falls somewhere between a criminal trial on one hand, and a hearing

21 where sentence has been imposed and the sole issue is revocation of probation or parole on the

22 other, while certain procedural rights must be afforded in a probation revocation and deferred

23 sentencing hearing, they are not intended to create a rigid and overly formal proceeding. Ryan v. 24 Montana, 580 F2d 988, 992 (91h Cir. 1978). The right to confront and cross-examine adverse

25 witnesses is not absolute in such a proceeding and may be curtailed if the hearing officer finds

26 good cause for not allowing confrontation. Gagnon, at 786; Morrissey, at 489. The Ninth Circuit

27 noted in Ryan that in the combined proceeding which carries more procedural due process than a

28 parole revocation proceeding, the hearing officer may consider hearsay evidence, such as that

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included in the report of a probation officer, United States v. Miller, 514 F.2d 41 (9th Cir. 1975)

2 (per curiam). Ryan, at 992.

3

The Supreme Court has stated that in the higher level of criminal prosecutions,"wherc

4 proffered hearsay has sufficient guarantees of reliability to come within a firmly rooted exception

5 to the hearsay rule, the Confrontation Clause is satisfied." White v. Illinois, 502 U.S. 346, 356

6 (1992). Equally important, the Supreme Court has stated that the admission of hearsay under a

7 firmly rooted exception, "satisfies the constitutional requirement of reliability because of the

8 weight accorded longstanding judicial and legislative experience in assessing the trustworthiness

9 of certain types of out-of-court statements. (citations)." Idaho v. Wright, 497 U.S. 805, 817

10 (1990). Thus, while rules of evidence do not strictly apply to revocation hearings, United Stales 11 v. Walker, 117 F.3d 417,421 (9lh Cir. 1997), "long-standing exceptions to the hearsay rule that

12 meet the more demanding requirements for criminal prosecutions should satisfy the lesser

13 standard of due process accorded the respondent in a revocation proceeding." United States v.

14 Ilall, 419 F.3d 980, 987 (2005), (citing Morrissey, at 489.)

15

Plaintiffs contend that Hall does not support the position that hearsay exceptions can

16 supplant balancing because the Hall court followed the balancing framework of Comito, and
17 because its discussion of federal hearsay exceptions was in the context of the reliability prong or

18 the Comito balancing. (Pltf. Mot. at 12.) Plaintiffs' view of Hall is selectively skewed. Hall

19 does not stand for the proposition that where there is a hearsay exception, full Comito balancing

20 is still required. Quite simply, the reason the Ninth Circuit in Hall dutifully applied Comito was

21 because the court was only addressing potential error from the admission of pure hearsay that

22 was itself not subject to any exception. Hall, at 987. Thus, balancing was appropriate.

23 Accordingly, the court's discussion of the evidence admissible under hearsay exceptions as a

24 component of the reliability prong was again appropriate because that evidence was utilized to

25 buttress the admission of the pure piece of hearsay. Plaintiffs' suggestion that what the court did

26 in Hall is a death knell to Defendants' position that hearsay subject to a long-standing exception

27 is admissible without more, is not supported by Hall itself. The balancing the court did was of

28 true hearsay that was not subject to an exception. Moreover, there is nothing that undermines

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Hall's pronouncement that hearsay subject to a long-standing exception leads to its admissibility

2 - a conclusion wholly consistent with Supreme Court precedent.

3

United States v. Simmons, 812 F.2d 561 (9th Cir. 1987), fully comports with Defendants'

4 position that hearsay subject to a long-standing exception, is admissible in a parole revocation

5 hearing without balancing. In Simmons, the district court admitted copies of hospital records

6 prepared by Simmons's attending physician and a Release of Information Clerk which the

7 custodian of records for the hospital certified as true copies of records prepared and maintained

8 in conjunction with the treatment of Simmons (classic business records). [d. at 564. The court

9 noted that cases delineate a process of balancing the probationer's right to confrontation against

10 the Government's good cause for denying it. [d. at 564. In particular, that good cause may ansI.!

11 from the "difficulty and expense of procuring witnesses." Id. (citing Gagnon, 411 U.S. at 783

12 n.5.) However, as a separate category, the Ninth Circuit then states, "[0Jur cases also suggest that

13 the reliability of evidence may provide a basis for its admission." Id. at 564. The court then held

14 that, "in light of the traditional indicia of reliability that these records bear, (citations omitted),

15 and the diminished procedural protections which attach to a probation revocation proceeding, we

16 cannot say that the admission of these records and the denial of Simmons's opportunity to

17 confront and cross-examine the hospital personnel was plain error." Id. at 564-65. Simmons

18 also cites to Prellwitz v. Berg, 578 F.2d 190 (7th Cir. 1978), as one of "other circuits that agree

19 that hearsay evidence may be admissible in probation revocation hearings." Simmons, at 564. In

20 Prellwitz, the petitioner argued that his due process rights to confront and cross-examine adverse

21 witnesses at the revocation hearing were violated by the introduction of hearsay in the form of'

22 Department records which documented unsuccessful attempts of petitioner's original probation

23 officer to locate petitioner when he failed to report. Prellwitz at 191-92. The court stated:

24

Forcing the state to show good cause for not producing the hearsay declarant would

unwisely extend the limited due process rights of a probationer at the revocation

25

hearing. While we agree that the Gagnon-Morrissey right to confront and cross-

examine witnesses imposes some limitations on the type of evidence that can be

26

introduced at hearings to revoke probation, the Supreme Court has repeatedly

emphasized the informal nature of those proceedings. Gagnon v. Scarpelli, supra at

27

789; Morrissey v. Brewer, supra 408 U.S. at 484. Thus, in parole and probation

revocation hearings, the process should be flexible enough to consider evidence

28

including letters, affidavits, and other material that would not be admissible in an

adversary criminal trial. [d. at 489.

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{d. at 192.

2

The court then went on to conclude that "the report was one ofthe 'conventional substitutes

3 for live testimony' which the Court has recognized to be permissible in probation revocation

4 proceedings." Id. (citing Gagnon v. Scarpelli, at 783 n.5.) Moreover, the court in Prellwitz

5 determined that the report was a record kept in the ordinary course of business by the

6 Department, and thus, bore "recognized indicia of reliability." Id.

7

Similarly, in United States v. Miller, 514 F.2d 41, 42~43 (9th Cir. 1975), the Ninth Circuit

8 held that an official could testifY at a probation revocation hearing when his knowledge of the

() facts was obtained solely from state probation reports and state court criminal records.

10

Moreover, the Ninth Circuit has held that a district court's failure to conduct a balancing test

1I was harmless where a probation officer testified from records maintained by another probation

12 officer, because the records were likely admissible under the "public records" exception to the

13 hearsay rule (something the parolee conceded in his reply brief), and thus sufficiently reliable to

14 withstand a right to confrontation claim. United States v. Walker, 117 F.3d 417,420-21 (l997).

15 The court ultimately found that because of the reliability of the hearsay evidence, and the failun:

16 of Walker to show prejudice, any error in failing to apply the balancing test was harmless. Id.

17

Plaintiffs heavily rely on United States v. Martin, 984 F.2d 308 (9th Cir. 1993), to contend

18 that hearsay exceptions do not nullifY Comito balancing. Martin did not again address whether

19 hearsay subject to a well-recognized exception is admissible without balancing. Specifically, the

20 issue in Martin centered around a urinalysis report where the witness who testified, could only

21 testifY about taking the urine samples and not about how they were handled or tested at the
22 laboratory. It was this chain of custody problem that took the urinalysis report out of the realm 0 r

23 the business-records exception to the hearsay rule, and the court even alludes to that by declining

24 the government's invitation to hold that all such reports are inherently reliable, stating that there

25 was no demonstration that "custody problems and testing errors happen with such rarity at testing

26 laboratories that their reports are always inherently reliable." Id. at 313. Martin IS reference to

27 the Simmons balancing only confirms Defendants' position because of what the Ninth Circuit

28 held in Simmons.

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What Simmons, Prellwitz, Miller and Walker all confirm is that hearsay that fans within a

2 recognized exception is one ofthe "conventional substitutes for live testimony" that Gagnon

3 expressly states can be used at revocation hearings. As a result, such evidence does not have to

4 endure Comito balancing for its admission in a revocation hearing.

5

Plaintiffs' motion suggests that for purposes of revocation hearings, hearsay exceptions may

6 not be used to have evidence that may fall within an exception, admitted for consideration by the

7 Deputy Commissioner. What Plaintiffs contend is that while in a criminal prosecution, hearsay

8 evidence that falls within a recognized exception is admissible, it would not be in a revocation

9 proceeding. Plaintiffs' position, if adopted, would give parolees more rights in a revocation

]0 proceeding than a defendant possesses in a criminal prosecution - it would dictate a higher

I I standard for admissibility of evidence in a revocation proceeding than in a criminal prosecution.

12 Plaintiffs' position would create an unintended and extreme rule that is neither legally sound nor

13 practically suitable for parole revocation hearings.

14

C. Practices in Administrative Proceedings Are Irrelevant to the Issues Presented in

this Motion.

]5

16

Plaintiffs' brief seeks to buttress their claim that hearsay exceptions do not obviate Comito

17 balancing, by discussing procedures in various administrative matters that include immigration

18 hearings, welfare claims, Medicaid, Social Security, Civil Service suspensions, and Departmcnt

19 of Justice disciplinary proceedings. (Pltf. Mot. at 14-15.) None of what occurs in such

20 administrative proceedings is relevant to the issue of whether Defendants are properly following

21 the law concerning the treatment of hearsay evidence in revocation proceedings. And, given the

22 actual cases in this area as discussed above, resort to unrelated and unknown administrative

23 proceedings is unwarranted.

24 ll. The Indicia of Reliability of Hearsay May Be Determined from Other Hearsay Evidence.
25

26

Plaintiffs contend that a Deputy Commissioner in a revocation hearing cannot consider

27 several hearsay statements together to see ifthey corroborate any given piece of hearsay and

28 provide indicia of reliability. Plaintiffs are incorrect.

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To be clear, Defendants have not taken the position that for pure hearsay, Comito balancing

2 is not necessary. However, Defendants submit that both Comito and Hall support the position

3 that numerous pieces of hearsay evidence can be considered together in determining the indicia

4 of reliability of a given piece of hearsay.

5

In Comito, the court in its balancing with regard to the officer's testimony as to what

6 Connell told him about the alleged fraud, also addressed four other pieces of evidence the

7 government offered. Comito, at 1168. The evidence consisted of stipulated testimony of a Las

8 Vegas Police Detective as to reports made by Connell; a memorandum written by Connell that

9 listed the dates and amounts of the transactions at issue; several of Comito's unemployment

10 compensation documents and his bank statement; and the officer's testimony concerning

II discussions he had with a credit card fraud investigator and the investigator's conversations with

12 Comito and Connell. Id. at 1168-1169. The court found that to varying degrees, the other

13 evidence (which obviously included hearsay) did provide corroboration of certain aspects of the

14 charge, but that it fell short of the proof required to establish the charged violation. [d. at I 168.

IS Thus, the court in Comito did not rule out consideration of other hearsay evidence to corroborate

16 the particular hearsay at issue - in fact, it did consider such evidence - it just concluded that they

J 7 were not enough.

18

This point is again emphasized by the court in its discussion ofthe Government's side of the

19 balance, specifically the indicia of reliability, where the Government argued that the hearsay at

20 issue bore sufficient indicia of reliability as a result of the other evidence. Id. at 1172. The couri

21 did consider the other evidence that it expressly noted included hearsay, finding it "not

22 particularly persuasive," that while some inferences could be drawn, there were still some

13 missing pieces (that the withdrawals by Comito were without Connell's consent), and that when

24 considered against other evidence showing another individual using Connell's ATM card, made

25 the hearsay less reliable. ld. at 1172, n.9. Nothing in Comito states that other evidence,

26 including hearsay, cannot be considered when assessing the indicia of reliability of a particular

27 piece of hearsay. To the contrary, the Ninth Circuit in Comito did in fact consider other hearsay

28 evidence to see whether it would corroborate the hearsay at issue, and thus, whether there was an

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i indicia of reliability to it.

2

Similarly, in Hall, the court analyzed hearsay (unsworn allegations ofthe victim, Hawkins,

3 to the testifying police officer) under the Comito balancing. On the confrontation side of the

4 balance, the Ninth Circuit found that unlike in Comito, Hawkins' statements to the officer bore

5 . indicia of reliability based upon the corroboration afforded by other evidence that included

6 hearsay. Hall, at p. 987-88. The other corroborating evidence included: (1) discovery of the golf

7 club where Hawkins told the officer it would be; (2) consistency with which Hawkins reported

8 the events ofthe evening to multiple people (which testimony was based on hearsay); (3) Red's

9 testimony; (4) the medical conclusions of the treating physician (which were based in part on

10 hearsay from Hawkins); (5) documented physical bruising; and (6) Hall's own statements to a

11 police officer. [d. And, the court in Hall found that the reliability of the domestic violence

12 aspect of Hawkins' hearsay statements to the poJice gave credence to the rest of her account of

13 the evening - again, all hearsay. Id. at 988.

14

After considering indicia of reliability on the confrontation side of the balance, the Hall

15 court then moves to the government's side of the balance to look at good cause for not producing

,6 Hawkins and traditional indicia of reliability. [d. The court again determined indicia of

I 7 reliability for the hearsay testimony based on its corroboration by the other evidence that

18 included hearsay. Id. Ultimately, the court concluded that Hall's confrontation right was

19 outweighed by both the good cause for not producing Hawkins and the independent indicia of

20 reliability "because the hearsay evidence was substantially corroborated." Id. at 989.

21

Thus, both Comito and Hall show that other evidence, including other hearsay, can properly

22 bc considered together and can be used to corroborate hearsay to establish the indicia of

23 reliability of a given piece of hearsay evidence. And, in Hall, hearsay was used to corroborate

24 the false imprisonment hearsay testimony that established its reliability and eventually tipped IhL:

25 balance away from the parolees' confrontation right. Such treatment is also consistent with the

26 Supreme Court's emphasis in Morrissey and Gagnon that the revocation process should be

'27 flexible such that evidence that would not normally be admissible in a criminal trial can be

28 considered, and the Ninth Circuit's statements that "the hearing officer may consider hearsay

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evidence." Ryan, at p. 992-93, citing United States v. Miller, 514 F.2d 41 (9th Cir. 1975).

2 Ill. Defendants Have Not Forced a Choice Between the Valdivia Timeline and the Right to Confrontation.
3

4

Plaintiffs' motion asks that the Mastership address a third issue purportedly implicating

5 Comito and confrontation rights, characterized as whether under due process and the Valdivia

6 Permanent Injunction, Defendants can make a parolee choose between the right to a timely

7 hearing and the right to confront adverse witnesses. (Pltf. Mot. at 4.) To make their point,

S Plaintiffs' only evidence is a hearing transcript where the parolee's revocation hearing was

9 continued past thirty-five days, to allow for both the state and the parolee to subpoena witnesses.

10 Aside from the fact that there is no evidence in the transcript that this parolee was forced to mah'

I I a choice, first and foremost, this is not a Comito issue as presented, and is not appropriately

12 included within the scope of this proceeding. Plaintiffs' issue on this one alleged parolee,

13 concerns a contention that the Valdivia timeHne (thirty-five days) was not met. In fact, the

14 Declaration of Shirley Huey submitted by Plaintiffs alleges that Defendants violated Paragraph

15 23 of the Permanent Injunction for failing to provide a timely hearing. Plaintiffs' attempt to tic

16 the timeline issue into the Comito balancing issue is misleading, especially as to Parolee #3's

17 case. Intermingling these two separate and distinct aspects of due process is overreaching in the

18 context of this proceeding and it should not be a point of decision by the Mastership.

19

Additionally, Plaintiffs' allegation that the hearing occurring beyond day thirty-five violated

20 Parolee #3 's due process is also disputed by the evidence. Specifically, at the first hearing,

21 Parolee #3 admitted to charge #2, use of cocaine. (Exh. 12, p. 3 of 5.) Based on that admission,

Parolee #3's parole was revoked and he was returned to custody for four months. (Exh. 12, p, ::I
or of 5 and 4 of5.) According to Plaintiffs' brief, the thirty-five-day timeframe in paragraph 23

24 the Permanent Injunction represents the maximum time a parolee may remain in custody pending

25 revocation without offending parolees' due process rights. (Pltf. Mot. at p. 19.) In Parolee #3'8

26 case, he was not in custody pending revocation at the time of the second hearing on the battery

27 charge that is the subject of Plaintiffs' allegations, because his parole had already been revoked,

28 Thus, the hearing on the battery occurring after day thirty-five was not a violation of his due

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process rights and Plaintiffs' reliance on Parolee #3 's case to improperly raise issues in this

2 proceeding is wholly undermined.

3

Moreover, upon a reading of the record for this parolee, it is evident that Deputy

4 Commissioner Rosenberg did do Comito balancing, to wit: the parolee's attorney acknowledges

5 corroboration ofthe deputy's hearsay from the existence of verifiable injuries to the victim (Ex.

6 14, p. 25:4-5); the parolee admitted to Commissioner Rosenberg at the PCH that he punched the

7 victim (Ex. 13, p. 3 of 5; Ex. 14, p. 25: 10-20); there were three separate hearsay statements that

8 supported each other and that caused each of the statements to have an increase in reliability

9 (Exh. 14, p. 26:2-7); the witnesses were sent subpoenas that were not returned as being

10 undeliverable (Exh. 14, p. 26:12-13); and that the testifying officer's report was very detailed and

11 all statements were consistent, including that ofthe parolee's mother who was a percipient

12 witness (Exh. 14, p. 26:17-20). Plaintiffs' Exhibit 13 at page 5 of5, also reveals proper

13 balancing was done by Commissioner Rosenberg:

14

Interest in confrontation considered. Victim and several witnesses not present.

Subpenas were sent to victim and witnesses and were not returned, and reasons for

1 5

non-appearance is unknown. P has right, though limited, to confront and cross-

examine victim and witnesses, but P's interest in confrontation weighted against the

16

importance of witnesses' testimony to the final finding of fact is lesser than the

reliability of the hearsay evidence and the corroboration of it. Three independent and

17

separate statements to deputy Shriver, who did not attend last hearing which was

postponed based on Comito objection. Each corroborate each other and the weight of

18

the corroborated hearsay evidence outweighs P's interest in confrontation.

19

Finally, as to Parolee #3, Plaintiffs utilize his case as an illustration of considering multiple

10 pieces of hearsay to corroborate the hearsay at issue. As set forth above at II, that is permissible.

21

tn the end, the sole evidence of Plaintiffs' purported claim that Defendants are forcing

22 parolees to choose between a thirty-five day hearing or right to confrontation, is completely

23 dispelled. Plaintiffs have submitted no other evidence to support their charge and accordingly,

24 the issue should go no further.

25 IV. The Four Individual Cases Selected by Plaintiffs Do Not Support Their Contention

that Defendants Are Violating Parolees' Due Process Rights or that Defendants Are

26

Running Afoul of Comito.

27

Plaintiffs' motion recounts four individual cases they picked to represent negative due

28 process consequences of Defendants purportedly not following Comito. From these four cases.

Dcfs.' Opposition to Motion to Enforce Par. 24 of Perm.lnj.
13

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Case 2:94-cv-00671-LKK-GGH Document 1398 Filed 02/25/08 Page 208 of 293

1· Plaintiffs ask that the Mastership take the leap to conclude that widespread violation is occurring.

2 Aside from the dearth of evidence to even support such a leap, as shown below, even the four

3 cases Plaintiffs put forth do not establish that Defendants are violating parolees' due process.

4

A. Parolee #1

5

Parolee # I is cited by Plaintiffs as an example of a Deputy Commissioner failing to do

6 Comito balancing and relying on the least reliable form ofunswom verbal allegations to find

7 good cause on one ofthree charges against the parolee - marijuana possession. (Pltf. Mot. at 5.)

8 Aside from the fact that it is nearly impossible to fully determine what the Deputy Commissiol1l:r

9 did because there are numerous notations on the transcription oftl[inaudible]," and "[Apparent

10 gap in the audiotape]," (Ex. 5, p. 7-8), Plaintiffs have conveniently ignored the fact that the

11 finding of good cause on the marijuana possession charge was not based on the third party

12 hearsay statements. Instead, as noted on the Form 1103, the good cause was based upon the

13 parole agent's testimony of what he found during the search of the parolee's room - marijuana in
5.t 14 the parolee's closet along with the parolee's belongings. (Ex. 6, page 3 of That evidence

15 was not hearsay.

16

As set forth in Comito, the weight to be given to a parolee's right to confrontation in a

17 particular case is based on two primary factors, the first of which is "the importance of the

18 hearsay evidence to the court's ultimate finding." Comito, at 1171. It is only when the hearsay

19 plays a significant factor in the ultimate finding that the parolee's right to confront the declarant

20 is even triggered. [d. Unlike in Comito where the hearsay testimony ofthe girlfiiend was critical

21 to the finding of the violation (that Comito had used her credit cards and checks without

22 permission), with Parolee #1, the hearsay statements from others in the house, including his

23 girlfriend, that the marijuana was not theirs but the parolee's, played no part in the ultimate

24 tinding of good cause. Instead, the good cause for the marijuana possession violation was based

25 upon the parole agent's non-hearsay testimony of his own observations and findings while

26

I. Plaintiffs' Exhibit 6 at page 3 of 5, has a block obstructing the reason for decision. 28 Accordingly, Defendants have filed, under seal, the complete document that is unobstructed. (Dl'L'1.
of Patricia Cassady and Exhibit A [filed under seal] thereto.)

Dcfs: Opposition to Motion to Enforce Par. 24 of Perm. lnj.
14

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conducting the search of parolee's room. Thus, the right to confront was not even triggered

2 under Comito.

3

B. Parolee #2

4

Plaintiffs contend that in the case of Parolee #2, the Deputy Commissioner did not do

5 Comito balancing with regard to the Center Point staffs statements to the parolee's agent of

6 record as to why he was terminated from the program which was therefore, a violation. Parolc~

7 #2 is not a valid example of any failing on the part of Defendants. Parolee #2 was subject to a

8 special condition of parole - that he participate in a drug treatment program and, in fact, after a

9 couple of starts and stops, was enrolled at Center Point. (Ex. 8 at 3 of 5.) The violation of that

10 condition was based solely on nonhearsay testimony that Parolee #2 was terminated from thc

II program (something Parolee #2 admits at the hearing as well). (Ex. 9 at p. 44:10-14.t Thus, the

12 staff person's hearsay as to his conduct that formed the reason for the termination (which was the

13 hearsay) was not significant to the allegation that he was terminated just as in Hall, where the

14 court addressed the domestic violence violation, because the nonhearsay evidence alone was

15 sufficient to sustain the allegation, the hearsay evidence could not have significantly affected the

16 ultimate finding and thus, any confrontation interest was virtually eliminated. Hall, at 986.

I 7 And, also as Hall stated, even if the hearsay should not have been admitted, the fact that

18 nonhearsay proved the violation results in harmless error. [d. at 987, n.S.

19

Also, the hearsay testimony as to Parolee #2 being verbally abusive to the Center Point stalf

20 was corroborated by Parolee #2 himself. At the hearing, Parolee #2 offered a written statemcnt

21 which was read into the record by the Deputy Commissioner, which states, "I did allow my

22 mouth to get me into trouble." (Ex. 9 at p. 40:24.) This admission provides indicia of reliability

23 to the staff hearsay testimony.

24

Moreover, Parolee #2's attorney states on the record that the objection was not a Comito

25 issue. (Ex. 9 at p. 37:4-6.) The problem was that the Center Point staff person ignored the

26

27 2. Plaintiffs did not include this portion ofthe transcript in Exhibit 9 as it jumps from page
28 42 to page 47. It is, however, included within the full hearing transcript lodged under seal per the
Notice of Lodging Revocation Hearing Transcripts.

Defs.' Opposition to Motion to Enforce Par. 24 or Perm. Inj.
15

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Case 2:94-cv-00671-LKK-GGH Document 1398 Filed 02/25/08 Page 210 of 293

subpoena that the State had issued for their attendance. (ld.) Aside from establishing good cause

2 for not producing the witness (since a subpoena issued but was not obeyed), there were numerous

3 nonhearsay statements and Parolee's own admissions that corroborated the hearsay such that

4 admission of the evidence was proper. And, ultimately, ifnot proper, it was harmless error.

5

C. Parolee #3

6

As the sole evidence on Plaintiffs' purported issue of forcing a choice between Valdivia

7 timelines and confrontation, this parolee's case is discussed and dispensed with above at III.

S

D. Parolee #4

9

Plaintiffs submit parolee #4 as an example of a failure to do Comito balancing. This case is

10 not evidence of non-compliance. First and foremost, it is nearly impossible to ascertain what

11 fully transpired at the revocation hearing for Parolee #4 because, as the transcript itself states,

12 "Proceedings Not Adequately Recorded For Transcription." Thus, there are notations of

13 "inaudible" at nearly every other word, including the critical portions where the Deputy

14 Commissioner was engaging in his Comito decision. For Plaintiffs to utilize Parolee #4's case as

15 evidence for their serious contention that Defendants are not following the law, is incredulous.

16

Second, Plaintiffs' Exhibit 17, the Summary of Revocation Hearing and Decision, makes

17 clear that even if the Deputy Commissioner did not properly conduct the Comito balancing, there

18 was no harm to Parolee #4. In particular, the disposition was "in the interests ofjustice and

19 parolee's rehabilitative opportunities justify him transitioning from hospital to achieve

10 rehabilitation and reintegration to society - incarceration under these circumstances

11 counterproductive though his history warrants 12 mos RTC." (Ex. 17, p. 3 of 5.) As Comito

12 itself points out, the failure to perform the balancing test may be erroneous, but not fatal.

13 Comito, at 1170. The question is whether, if confrontation rights were violated, that violation

24 was harmless beyond a reasonable doubt. ld. In Parolee #4's case, there is no question that even

25 if the Deputy Commissioner either failed to or did not properly conduct the balancing, such eHor

16 was entirely harmless given that Parolee #4's liberty interest was not impacted because he was

27 not returned to custody.

18 / / /

Dds.' Opposition to Motion to Enforce Par. 24 of Perm. Jnj.
16

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V. There Is No Basis to Require Defendants to Fund Legal Representation for Parolees on Writs or Appeals Involving Comito.
2

3

Plaintiffs contend, without sufficient, and in most cases without any, evidence that there has

4 been a systemic violation of confrontation rights by Defendants. They ask that Defendants be

5 forced to amend the contract with the attorney panel to provide compensation to the attorneys to

6 file writs and appeals on Comito issues. The request is without basis. As demonstrated with the

7 tour cases advanced by Plaintiffs in their motion, Defendants did not violate the four parolees'

8 confrontation rights. Moreover, there is no evidence at all to support the serious charge that

9 Defendants have systemically violated parolees' rights. Plaintiffs provide no legal or factual

I0 basis to support their request that Defendants be forced to fund attorney fees for unnecessary I I Iegal proceedings.

12

CONCLUSION

13

Based on the foregoing, Defendants request a determination that where a proffered out-ol~

14 court statement is admissible under an established exception to the hearsay rule that would cause 15 it to be admissible in a criminal proceeding, Defendants may avail themselves of that exception

16 to admit the out-of-court statement in a parole revocation proceeding without having to engage in

[7 Comito balancing. To do otherwise would be to provide more rights to parolees than those

18 provided to defendants in criminal prosecutions -- something both Morrissey and Gagnon 19 denounced.

20

Additionally, Defendants request a determination that like both Comito and Hall, other

21 hearsay statements can be considered in assessing the indicia of reliability of a piece of hearsay

22 evidence, as part of the balancing process.

23

Because Plaintiffs submit no evidence on their claim that Defendants are forcing parolees to

24 choose between a thirty-five day hearing and the right to confrontation, no determination should 15 be made.

26 / / I

27 i / /

28 1/1

Def,,: Opposition to Motion to Enforce Par. 24 of Perm. Inj.
17

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Lastly, with no evidence of systemic violations of parolees' confrontation rights and no

2 legal hasis, Plaintiffs' request that Defendants he ordered to fund attorney fees for writs and

3 appeals on Comito issues should be denied.

4 Dated: October 26, 2007 5 6
7
8 9 10 11 12 13

Respectfully submitted,
EDMUND G. BROWN JR. Attorney General of the State of California
JAMES M. HUMES Chief Assistant Attorney General
FRANCEST.GRUNDER Senior Assistant Attorney General
ROCHELLE C. EAST Supervising Deputy Attorney General
-'1't/:J/ -':" (I'~j t~J>VI/JI1v.v-~N-;:r
VICKIE P. WHITNEY (J
Supervising Deputy Attorney General Attorneys for Defendants

14

15

J6

17

18

19

20

21

22

23

24

25

26

27

28

Defs.' Opposition to Motion to Enforce Par. 24 of Perm. lnj.
18

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1 BINGHAM, McCUTCHEN LLP
GEOFFREY THOMAS HOLTZ - 191370 2 KRISTEN A. PALUMBO-215857
Three Embarcadero Center
3 San Francisco, California 94111-4067 Telephone: (415) 393-2000
4
PRISON LAW OFFICE 5 DONALD SPECTER- 83925
General Delivery
6 San Quentin, California 94964 Telephone: (415) 457-9144
7
ROSEN, BIEN & GALVAN, LLP 8 MICHAEL W. BIEN - 096891
ERNEST GALVAN - 196065 9 LORENG. STEWART-243645
315 Montgomery Street, 10th Floor 10 San FrancIsco, California 94104
Telephone (415) 433-6830 11
Attorneys for Plaintiffs 12

13

UNITED STATES DISTRICT COURT

14

EASTERN DISTRICT OF CALIFORNIA

15

OFFICE OF THE SPECIAL MASTER

16 JERRY VALDIVIA, et aI.,
17 Plaintiffs,
18 vs.
19 ARNOLD SCHWARZENEGGER, et aI.,
20 Defendants.
21
22
23

Case No. Civ. S-94-0671 LKKJGGH

PLAINTIFFS' REPLY IN SUPPORT OF PLAINTIFFS' MOTION TO ENFORCE PARAGRAPH 24 OF THE VALDIVIA
PERMANENT INJUNCTION

HEARING

Date: Time: Location: Officer:

December 14, 2007
10:00 am Rosen, Bien & Galvan, LLP
Chase Riveland, Special Master

24

25

26

27

28

PLAINTIFFS' REPLY IN SUPPORT OF PLAINTIFFS' MOTION TO ENFORCE PARAGRAPH 24 OF THE VALDIVIA PERMANENT INJUNCTION - Case No. Civ. S-94-0671 LKKlGGH

Case 2:94-cv-00671-LKK-GGH Document 1398 Filed 02/25/08 Page 214 of 293

1

TABLE OF CONTENTS

2

3 INTRODUCTION .......................................................................................................................... 1
4
5 ARGUMENT.................................................................................................................................. 2

6

I. The Basic Rule of Confrontation in Revocation Hearings....................................... 2

7

II. Hearing Officers Must Conduct a Comito Balancing Whenever the State

Seeks to Deny the Right to Confront and Cross-Examine Adverse

8

Witnesses.................................................................................................................. 4

9

A. Contrary to Defendants' Opposition, There is No Basis to Fear

10

that Parolees Will Receive More Process than Criminal

Defendants..................................................................................................... 4 11

12

1. Criminal Defendants Are Protected by the Rules of Evidence Excluding All Hearsay Not Within Exceptions,

13

as Well as Sixth Amendment Confrontation-Based

Limitations, While Parolees Are Protected Only by a

14

Conditional Due Process Confrontation Right................................... 4

15

2. Hearsay Exceptions Do Not Satisfy Sixth Amendment

16

Confrontation Rights Under Crawfordv. Washington, 541

U.S. 36 (2004).................................................................................... 5

17

B. The Due Process Conditional Confrontation Right Requires a

18

Balancing Test for the Admission of All Hearsay, Including that

19

Which May Fall Within a Hearsay Exception.............................................. 6

20

1. Reliability-Derived From Hearsay Exceptions-Is Only

One of Several Factors that Affect the Weight of the

21

Parolee's Confrontation Right. .......................................................... 6

22 2. Defendants' Reading of the Cases Would Turn

23

Confrontation into the Exception Rather than the Rule..................... 7

24

3. Defendants' Readings of Hall and Martin Are Distorted by

25

Defendants' Insertion of the Notion of "Pure Hearsay." ................... 8

26

C. Defendants' Attempts to Support Their Desired Outcome by

Relying on General Flexibility and on Cases with Little or No

27

Nexus to the Instant Dispute Are Unconvincing......................................... 11

28

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Case 2:94-cv-00671-LKK-GGH Document 1398 Filed 02/25/08 Page 215 of 293

1

1. Morrissey Sets Forth a Standard That Requires Flexibility

2

and Confrontation, Not Just Flexibility............................................ 11

3

2. Defendants' "Flexibility" Cases Do Not Negate the Basic

Rules of Confrontation..................................................................... 12

4

D. Plaintiffs' Reliance on Confrontation in Other Administrative

5

Proceedings Is Both Relevant and Persuasive............................................ 15

6

III. Confrontation Rights Are Not Satisfied by Adding More Hearsay

7

Evidence On Top of Other Hearsay Evidence Because Such So-Called

"Corroboration" Merely Adds to the Number of Unconfronted Accusers,

8

Aggravating the Constitutional Violation.............................................................. 15

9

IV. The Problem of Postponing a Hearing Instead of Granting a Comito

10

Objection Is Plainly within the Scope of this Motion, and Parolee 3's

Case Clearly Illustrates that Issue.......................................................................... 19 11

V. Funding Legal Representation for Parolees Aggrieved by Defendants'

12

Unlawful Comito Policies Is Essential to Provide Meaningful Relief and

13

Advance Defendants' Compliance with Valdivia.................................................. 20

14

VI. The Defendants' Attacks on the Four Exemplar Cases Are Incorrect and

Inconsequential to the Outcome of this Motion..................................................... 21 15

16 CONCLUSION ............................................................................................................................ 22

17 18 19 20 21
22 23
24 25 26 27
28
11
PLAINTIFFS' REPLY IN SUPPORT OF PLAINTIFFS' MOTION TO ENFORCE PARAGRAPH 24 OF THE VALDIVIA PERMANENT INJUNCTION - Case No. Civ. S-94-0671 LKKlGGH

Case 2:94-cv-00671-LKK-GGH Document 1398 Filed 02/25/08 Page 216 of 293

1 2 3 Cases

TABLE OF AUTHORITIES

4 Crawford v. Washington,

5

541 U.S. 36 (2004) ................................................................................................................ 4,5

6 Gagnon v. Scarpelli, 411 U.S. 778 (1973) ...................................................................................................... 3, 11, 13
7
8 Goldberg v. Kelly, 397 U.S. 254 (1970) ................................................................................................................ 15
9 Idaho v. Wright, 10 497 U.S. 805 (1990) .................................................................................................................. 5

11 In re Miller,

12

145 Cal. App. 4th 1228 (Cal. Ct. App. 2007) ....................................................... 18, 19,20,21

13 Morrissey v. Brewer,

408 U.S. 471 (1972) ......................................................................................................... passim 14

Prellwitz v. Berg,

15

578 F.2d 190 (7th Cir. 1978) ............................................................................................ 13, 14

16 Ryan v. Montana,

17 580 F.2d 988 (9th Cir. 1978) .................................................................................................. 13

18 Santa Fe Ind. School Dist. v. Doe,

19

530 U.S. 290 (2000) ................................................................................................................ 20

20 United States v. Comito,
177 F.3d 1166 (9th Cir. 1999) ......................................................................................... passim 21
United States v. Hall,
22 419 F.3d 980 (9th Cir. 2005) ........................................................................................... passim

23 United States v. Martin, 24 984 F.2d 308 (9th Cir. 1993) ........................................................................................... passim

25 United States v. Miller,

26

514 F.2d 41 (9th Cir. 1975) .............................................................................................. 12, 13

27 United States v. Segal,
549 F.2d 1293 (9th Cir. 1977) ................................................................................................ 12 28

111
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1 United States v. Simmons,

2

812 F.2d 561 (9th Cir. 1987) .......................................................................................... 3,8, 11

3 United States v. Walker,

117 F.3d 417 (9th Cir. 1997) ................................................................................................ 3,8
4 Valdivia v. Davis,

5 206 F. Supp. 2d 1068 (E.D. Cal. 2003)............................................................................ passim

6 White v. Illinois, 7 502 U.S. 346 (1992) .................................................................................................................. 5

8 Other Authorities

9 Robert S. Hunter, Federal Trial Handbook: 10 Criminal § 65.1 (Thomson West 4th ed. 2007) ......................................................................... 7

11 Rules

12 Fed. R. Evid. 801(c)...................................................................................................................... 17

13 Fed. R. Evid. 802 ............................................................................................................................ 4 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
IV PLAINTIFFS' REPLY IN SUPPORT OF PLAINTIFFS' MOTION TO ENFORCE PARAGRAPH 24 OF THE VALDIVIA
PERMANENT INJUNCTION - Case No. Civ. S-94-0671 LKK/GGH

Case 2:94-cv-00671-LKK-GGH Document 1398 Filed 02/25/08 Page 218 of 293

1

INTRODUCTION

2

The practical issue here is whether live witnesses will be the rule or the exception in

3 revocation hearings. Defendants' new procedure would make live witnesses the exception by

4 reversing the burdens of proof required under existing law. Under existing law, as stated in

5 Morrissey v. Brewer, 408 U.S. 471 (1972), and United States v. Comito, 177 F3d 1166 (9th Cir.

6 1999), the default rule is that those providing information against the parolee must do so live at a

7 hearing. The government must show good cause to make an exception. Defendants' new

8 procedure would reverse the default rule; parolees would have to show that statements against

9 them do not meet a hearsay exception in order to invoke the right to face a live accuser. The

10 proper default rule has already been resolved by constitutional law and the Valdivia Permanent

11 Injunction. Defendants offer no basis to change the rules now.

12

Defendants' proposal to elevate hearsay rules above due process would cause unjust

13 results because hearing officers would be forced to ignore the other factors that count on the

14 parolee's side of the confrontation balancing. Under controlling law, the hearing officer must

15 consider the importance of the challenged statement to the ultimate decision. Comito, 177 F3d

16 at 1171. Under Defendants' standard, statements within a hearsay exception would come in,

17 regardless of whether the statement was the only evidence to send a person back to prison.

18 Under controlling law, the hearing officer must consider the consequences of the findings. Id. at

19 1171 n.7. Under Defendants' standard, statements within a hearsay exception come in whether

20 the result is a one-month term or a life term. Such results are fundamentally unfair and contrary

21 to due process.

22

The only reason offered for elevating hearsay exceptions above due process is a fear that

23 parolees might get more rights than criminal defendants. This perception is incorrect. Criminal

24 defendants get the full benefit of the rules of evidence, under which all hearsay is excluded

25 unless it fits within an exception, and get the benefit of the Sixth Amendment Confrontation

26 Clause. Parolees get no benefit from the rules of evidence. The parolee's only protection against

27 untested evidence arises from the due process conditional right to confrontation. Moreover,

28 Defendants' assertion that criminal defendants are denied Sixth Amendment confrontation based
1
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1 on hearsay exceptions is wrong as matter of constitutional law.

2

Defendants do not seriously contest the other two issues present in the motion.

3 Defendants offer no basis for the proposition that two or more items of hearsay are somehow less

4 of a confrontation problem than one. Defendants offer no justification for requiring parolees to

5 choose between timely hearings and fair hearings.

6

As set forth in our proposed Report and Recommendation, Plaintiffs' respectfully request

7 that the Special Master issue a Report and Recommendation to the Court, answering all three

8 questions presented at pages 3-4 of the Motion in the negative:

9

1. No, California may not return a parolee to prison based on out-of-hearing

statements from persons the parolee never gets to confront or cross examine

10

merely because the statement might fall within a state or federal hearsay

11

exception.

12

2. No, denial of confrontation is not excused if the state lines up several

unconfronted hearsay statements next to one another and allows each statement to

13

corroborate its neighbors, even though all are from witnesses are who never

confronted or cross-examined by the parolee. 14

3. No, California may not make a parolee choose between the right to a timely

15

hearing and the right to confront adverse witnesses.

16

Plaintiffs request that the Special Master adopt the Proposed Report and Recommendation

17 submitted with the Motion, and recommend orders requiring Defendants: (1) to revise their

18 policies, procedures, standards, guidelines, and training materials to conform to the law on this

19 issue; (2) to train all hearing officers on this matter; and (3) to provide funding for select writs to

20 remedy the constitutional violations that have occurred. For the reasons stated in the

21 accompanying Response to Defendants' Objections, Plaintiffs also request that Defendants'

22 evidentiary objections be overruled.

23

ARGUMENT

24 I. The Basic Rule of Confrontation in Revocation Hearings

25

In Morrissey, the U.S. Supreme Court held that "the minimum requirements of due

26 process" in revocation hearings include "the right to confront and cross-examine adverse

27 witnesses (unless the hearing officer specifically finds good cause for not allowing

28 confrontation)." Morrissey, 408 U.S. at 488-89; see also Gagnon v. Scarpelli, 411 U.S. 778,
2
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1 782, 786-787 (1973) (reaffinning Morrissey confrontation rule).

2

The Ninth Circuit has consistently articulated the Morrissey rule in deciding parole

3 revocation cases involving confrontation. See United States v. Hall, 419 F.3d 980,986 (9th Cir.

4 2005) (citing Morrissey's recognition of parolee's '''right to confront and cross-examine adverse

5 witnesses at a revocation hearing, unless the government shows good cause for not producing the

6 witnesses"'); Comito, 177 F.3d at 1170 (same); United States v. Martin, 984 F.2d 308, 310 (9th

7 Cir. 1993) (same); United States v. Simmons, 812 F.2d 561, 564 (9th Cir. 1987) (same).

8

To implement the Morrissey right, the hearing officer must follow "a process of balancing

9 the [parolee's] right to confrontation against the Government's good cause for denying it."

10 Simmons, 812 F.2d at 564; see also Hall, 419 F.3d at 986 (weighing "'the releasee's interest in

11 his constitutionally guaranteed right to confrontation against the Government's good cause for

12 denying it"'); Comito, 177 F.3d at 1170 (same); United States v. Walker, 117 F.3d 417,420 (9th

13 Cir. 1997) (same); Martin, 984 F.2d at 310 (same).

14

To assess the releasee's interest in confrontation, the decision-maker should consider "the

15 importance of the hearsay evidence to the court's ultimate finding and the nature of the facts to

16 be proven by the hearsay evidence." Comito, 177 F.3d at 1171. '''[T]he more significant

17 particular evidence is to a finding, the more important it is that the releasee be given an

18 opportunity to demonstrate that the proffered evidence does not reflect "verified fact.'" [d.

19 (quoting Martin, 984 F.2d at 310-11). The Comito court continued, "So, too, the more subject to

20 question the accuracy and reliability of the proffered evidence, the greater the releasee's interest

21 in testing it by exercising his right to confrontation." Id. Finally, the Ninth Circuit has

22 recognized that a parolee's interest in confrontation increases as "the consequences of the court's

23 finding" increases. Martin, 984 F.2d at 311; see also Comito, 177 F.3d at 1171 n.7.

24

On the government's side of the balance, the reasons for denying confrontation vary

25 "depending on the specific circumstances." Comito, 177 F.3d at 1172. In some cases "mere

26 inconvenience or expense may be enough; in others, much more will be required." [d. The

27 general principle is that the government must make a "showing of difficulty in obtaining" the

28 adverse witness's presence for cross examination. Id. The courts have also relied on "the
3
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1 traditional indicia of reliability borne by the evidence" to assess the government's good cause for

2 denying confrontation. Hall, 419 F.3d at 988 (internal quotation marks omitted).

3

The parolee's confrontation right prevails "unless the hearing officer specifically finds

4 good cause for not allowing confrontation." Morrissey, 408 U.S. at 489 (emphasis added).

5 II. 6

Hearing Officers Must Conduct a Comito Balancing Whenever the State Seeks to Deny the Right to Confront and Cross-Examine Adverse Witnesses.

7

Defendants argue that the applicability of a hearsay exception "automatically establishes

8 good cause to deny the right to confront due to the inherent indicia of reliability." Defendants'

9 Opposition to Plaintiffs' Motion to Enforce Paragraph 24 of the Valdivia Permanent Injunction

10 ("Opp.") at 2. Due process does not allow confrontation to be excused so lightly. Defendants

11 defend their new standard by: (1) wrongfully arguing that any other rule would guarantee

12 parolees greater confrontation rights than criminal defendants; (2) inventing a fictional

13 dichotomy between "pure hearsay" and other hearsay-a dichotomy that has no place in this

14 dispute and is, in fact, squarely rejected by the leading cases and the Federal Rules of Evidence;

15 and (3) misstating the holdings of the leading cases.

16

A. Contrary to Defendants' Opposition, There is No Basis to Fear that Parolees

Will Receive More Process than Criminal Defendants.

17

1. Criminal Defendants Are Protected by the Rules of Evidence Excluding

18

All Hearsay Not Within Exceptions, as Well as Sixth Amendment

Confrontation-Based Limitations, While Parolees Are Protected Only

19

by a Conditional Due Process Confrontation Right.

20

Accused criminal defendants-unlike accused parolees-have the right to formal trials,

21 including trial by jury, proof beyond a reasonable doubt, and most pertinent here, trial under

22 federal or state rules of evidence, including the prohibition on admission of hearsay evidence that

23 does not meet an exception. See, e.g., Fed. R. Evid. 802. In addition, criminal defendants have

24 the right to confront their accusers under the Sixth Amendment, which bars all testimonial

25 hearsay, whether or not the hearsay falls within an exception. Crawford v. Washington, 541 U.S.

26 36 (2004). In contrast, parolees have only a conditional due process confrontation right and no

27 hearsay rule. Defendants' position would import only half of the hearsay regime-the

28 exceptions that benefit the government-without also including the hearsay rule that would
4
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1 protect the accused. See also Notice of Motion and Motion to Enforce Paragraph 24 of the

2 Valdivia Permanent Injunction ("Motion") at 3. Defendants would use this one-sided half-

3 importation of the hearsay rule only for the purpose of negating the conditional confrontation

4 right, the only screen accused parolees have against untested out-of-hearing statements.

5

2. Hearsay Exceptions Do Not Satisfy Sixth Amendment Confrontation

Rights Under Crawford v. Washington, 541 U.S. 36 (2004).

6

7

Defendants mistakenly state that "the admission of hearsay under a firmly rooted

8 exception, 'satisfies the constitutional requirement of reliability.'" Opp. at 6 (quoting Idaho v.

9 Wright, 497 U.S. 805, 817 (1990), also citing White v. Illinois, 502 U.S. 346, 356 (1992). While

10 Defendants' do not inaccurately quote Wright and White, the legal proposition relied upon is no

11 longer good law.

12

In Crawford v. Washington, 541 U.S. 36 (2004), the U.S. Supreme Court rejected any

13 reliance on the Wright and White line of cases, to the extent such cases were read to mean that

14 confrontation rights are satisfied by the presence of hearsay exceptions or any other indicia of

15 reliability. Whatever the rule might have been before 2004, after Crawford it can no longer be

16 said that criminal prosecutors can get out-of-court testimonial statements admitted in criminal

17 trials based on a judicial finding of 'reliability' based on hearsay exceptions. Crawford could not

18 be clearer on this point:

19

Admitting statements deemed reliable by a judge is fundamentally at

20

odds with the right of confrontation. To be sure, the Clause's ultimate goal is to ensure reliability of evidence, but it is a procedural rather

21

than a substantive guarantee. It commands, not that evidence be

reliable, but that reliability be assessed in a particular manner: by

22

testing in the crucible of cross-examination.

23 Crawford, 541 U.S. at 61. The Crawford Court squarely rejected the prior framework under

24 which a statement that "falls under a 'firmly rooted hearsay exception' or bears 'particularized

25 guarantees of trustworthiness'" may be admitted against a criminal defendant without

26 confrontation and cross-examination. Id. at 60. For testimonial statements, such as witness

27 statements to police investigators and parole agents, the current rule of confrontation in criminal

28 trials is exactly the opposite of what Defendants contend it is here. For testimonial statements,
5
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1 judicial findings of "reliability" based on hearsay exceptions (or anything else) are completely

2 irrelevant to whether or not the accused gets to confront and cross-examine the hearsay declarant.

3

Defendants' error on this point is plain and profound. There is no danger that parolees

4 will receive more process than criminal defendants if Comito and the Valdivia Injunction are

5 respected.

6

B. The Due Process Conditional Confrontation Right Requires a Balancin~ Test

for the Admission of All Hearsay, Including that Whicb May Fall Withm a

7

Hearsay Exception.

8

1. Reliability-Derived From Hearsay Exceptions-Is Only One of

Several Factors that Affect the Weight of the Parolee's Confrontation

9

Right.

10

Defendants' Opposition does not say what becomes of the non-reliability factors that must

11 be considered in deciding whether to excuse confrontation of a particular statement. Comito

12 states that the confrontation right "is not static, but is of greater or lesser significance depending

13 on the circumstances." Comito, 177 F.3d at 1171 (citing Martin, 984 F.2d at 310-11). Comito

14 states even that the factors to consider will vary with the circumstances, id. at 1171 n.7, but

15 identifies three factors-two primary, and one illustrative ofthe non-exhaustive nature of the two

16 primary factors: (1) "the importance of the hearsay evidence to the court's ultimate finding;"

17 (2) "the nature of the facts to be proven by the hearsay evidence;" and (3) "the consequences of

18 the court's findings." Id. at 1171 & n.7.

19

Defendants and Plaintiffs agree that reliability falls under factor number 2, above, "nature

20 of the facts to be proven," and that reliability tends to increase when statements fall within some

21 long-established hearsay exceptions. Under Defendants' plan, however, whenever reliability is

22 bolstered by a hearsay exception, the other two factors (not to mention other factors that may

23 arise, since this list is non-exhaustive) are simply written out of the test. The "importance of the

24 hearsay" to the finding and the "consequences" of an adverse finding would not be considered at

25 all. Thus, under Defendants' plan if any hearsay exception applies, the statement comes in with

26 no balancing of good cause, even if is the only evidence linking the parolee to the crime.

27 Likewise, if a hearsay exception applies, the statement comes in even if it is the only evidence

28 supporting a finding that would send the parolee back to prison for life, as is the case in certain
6
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1 Valdivia hearings for life-tenn parolees. The fundamental unfairness of such a rule is clear.

2

This one-size-fits-all approach is all the more unacceptable when one considers that not

3 all hearsay exceptions are created equal. Hearsay exceptions are constantly changing based on

4 policy decisions and reliability assessments. See Robert S. Hunter, Federal Trial Handbook:

5 Criminal § 65.1 (Thomson West 4th ed. 2007). Under Defendants' plan, however, all hearsay

6 exceptions would have equal weight in negating a parolee's confrontation rights.

7

2. Defendants' Reading of the Cases Would Turn Confrontation into the

Exception Rather than the Rule.

8

Defendants assert that, under Comito, "If a parolee can show that the hearsay at issue was

9

significant towards proving the violation and that it is not reliable, then the government is called

10

upon to show good cause for not producing the witness. Comito, at 1172." Opp. at 3. This 11
completely misstates the burdens and balancing test set forth in Comito.1 12

As Defendants would have it, the parolee would only have a confrontation right if the 13

parolee could first meet a burden ofproofto show two elements: (1) that the evidence is

14
significant, and (2) that it is unreliable. Under Defendants' proposed scheme, ifthe parolee could
15

show that the evidence was significant and unreliable, only then would the government have any

16

burden at all to show good cause for not producing the witness. In practice, this would mean that

17

the State's preparation for a Morrissey hearing could include no efforts to secure witness

18

attendance, but only efforts to fit the witness's statements into certain hearsay exceptions. With

19

the burdens thus reversed, the State could return the parolee to prison on hearsay alone without

20

having to say even one word to the hearing officer about the reasons for not presenting the live

21

witness for cross-examination. Due process does not pennit returning a person to prison on

22

hearsay when there is "nothing at all to put on the Government's side of the scale" regarding

23

good cause for failure to produce the witness. Comito, 177 F.3d at 1172.

24

25 Defendants also erroneously state that the Comito court considered "traditional indicia of 26 reliability borne by the evidence" in the "government's good cause." Opp. at 3. The court did
not conslder indiCia of reliability as to good cause. The Comito court first examined the 27 government's cause for denying confrontation, remarking that "no cause has been shown for
denying Comito his confrontation rights-there is nothing at all to put on the Government's side 28 of the scale," Comito, 177 F.3d at 1172, and then dispatched the government's alternative
argument that the hearsay evidence should nonetheless be admitted because of its reliability, id.
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1

Contrary to Defendants' approach, due process requires the opposite allocation of

2 burdens. Confrontation is the rule, and non-confrontation is the exception to be enjoyed by the

3 government only if it can meet its burden to show good cause. "[E]very releasee is guaranteed

4 the right to confront and cross-examine adverse witnesses at a revocation hearing, unless the

5 government shows good cause for not producing the witness." Id. at 1170. "[I]n determining

6 whether the admission of hearsay evidence violates the releasee's right to confrontation in a

7 particular case, the court must weigh the releasee's interest in ... confrontation ... against the

8 Government's good cause for denying it." Id.

9

Comito sets forth the agreed-upon standard for admission of any "hearsay evidence," not

10 just hearsay evidence that does not fall within a hearsay exception. Id. at 1170. Indeed, all of the

11 lead cases set forth this same standard. See Hall, 419 F.3d at 986 ("[W]hether the admission of

12 hearsay evidence violates the releasee's right to confrontation ....") (emphasis added); Walker,

13 117 F.3d at 420 ("[I]n determining whether the admission of hearsay evidence violates the

14 releasee's right to confrontation ....") (emphasis added); Martin, 984 F.2d at 310 ("In cases

15 involving the Morrissey right to confrontation, we employ 'a process of balancing the

16 [releasee's] right to confrontation against the Government's good cause for denying it."');

17 Simmons, 812 F.2d at 564 ("The cases [on confrontation] thus delineate a process of balancing

18 the probationer's right to confrontation against the Government's good cause for denying it.").

19

3. Defendants' Readings of Hall and Martin Are Distorted by Defendants'

Insertion of the Notion of "Pure Hearsay."

20

21

Defendants contend that the Hall court conducted a Comito balancing "because the court

22 was only addressing potential error from the admission of pure hearsay that was itself not subject

23 to any exception." Opp. at 6.

24

There are two problems with Defendants' interpretation of Hall. First, their interpretation

25 relies on the false distinction between "pure" or "true" hearsay and other hearsay-a distinction

26 that the Hall court does not make. Second, the Hall court conducted a Comito balancing and

27 rejected the government's arguments that mere fit within a hearsay exception renders evidence

28 admissible.
8
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1

At issue in Hall were two supervised release revocation charges: domestic violence and

2 false imprisonment. See Hall, 419 F.3d at 986-89; see also Motion at 12-14. The hearsay

3 evidence at issue in the case were statements made by Susan Hawkins-HaIl's alleged victim-

4 presented second-hand through the testimony ofHall's probation officer (Officer Bergland), and

5 testimony of the responding officer to the incident (Officer Gross). Id. at 983-84. The court

6 rejected Hall's confrontation challenge to the first charge, the domestic violence charge, because

7 "the nonhearsay evidence ... alone was sufficient to sustain the domestic violence allegation."

8 Id. at 986. Specifically, the direct evidence supporting the charge included: (1) testimony from

9 Hall's friend "Red" that he had seen Hall slap Hawkins, id. at 984,986; (2) Hall's own

10 admission to his agent that he slapped her, id.; and (3) properly authenticated photographs taken

11 shortly after the incident showing Hawkins' bruising, id. at 983,986-87. "[T]he hearsay

12 evidence could not have significantly affected the court's ultimate finding." Id. at 986.

13

The false imprisonment claim, however, raised a serious confrontation question. "Officer

14 Gross' account of Hawkins' statements regarding [the] false imprisonment [charge] were

15 undoubtedly significant to the court's ultimate finding... , The evidence of false imprisonment

16 in this case primarily comes from Hawkins' account ofthe evening as testified to by Officer

17 Gross." Id. at 987.

18

Under the heading, "Nature of facts to be proven by hearsay evidence," the Hall court

19 examined Hall's side of the Comito balance, noting that the statements were unsworn verbal

20 allegations that are, "in general, the least reliable type ofhearsay." Id. The proffered hearsay

21 statements were "significant to the court's ultimate finding," but bore "indicia of reliability." Id.

22 The court recounted six pieces ofevidence (four ofwhich were presented in live non-hearsay

23 testimony at the hearing) that in some manner corroborated Hawkins' hearsay statements:

24 (1) Officer Gross' live testimony regarding his discovery of a golf club allegedly used to threaten

25 Hawkins in Hall's home, exactly where Hawkins had said it would be; (2) the consistency with

26 which Hawkins reported her events of the evening to multiple people shortly after the incident;

27 (3) Red's live testimony that Hawkins had been in Hall's apartment, and that Red saw Hall hit

28
9
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1 Hawkins; (4) Dr. Grover's2 live testimony to his medical conclusions that Hawkins' injuries

2 were consistent with her description of an assault; (5) live testimony of another officer presenting

3 photographs of Hawkins' bruising shortly after the incident; and (6) Hall's own admission to

4 Officer Bergland that he had slapped Hawkins. Id. at 983-84,987-88. Because Hawkins'

5 hearsay statement was corroborated, bolstering its reliability, Hall's interest in confronting it was

6 not as high. The court continued, "[t]his is not the end of the inquiry, however. Simply because

7 hearsay evidence bears some indicia of reliability does not render it admissible.... Hall's

8 otherwise strong interest in confrontation is somewhat lessened by the reliability of the hearsay

9 evidence, but it is not defeated." Id. at 988.

10

The Hall court then weighed the "government's good cause" for denying confrontation.

11 Id. at 988. The court noted that Hawkins was homeless and had left the shelter where she was

12 living without providing a forwarding address. Id. The government sought her out at the shelter,

13 and even "ran checks on Hawkins' social security number and birth date" in its attempts to locate

14 her. Id. The court concluded that, "[a]lthough Hall had a strong interest in confronting Hawkins

15 with regard to the false imprisonment charge, on balance, that interest is outweighed by the

16 government's good cause for not producing Hawkins as a witness." Id. at 989. The Hall court

17 carefully balanced the government's good cause for not presenting the witness against the

18 releasee's interest in confronting the evidence, even though the evidence bore indicia of

19 reliability. Hall therefore simply cannot stand for the proposition that indicia of reliability

20 excuse any inquiry into good cause.

21

Finally, Defendants somehow arrive at the conclusion that, in United States v. Martin,

22 "[i]t was this chain of custody problem that took the urinalysis report out of the realm of the

23 business-records exception to the hearsay rule, and the court even alludes to that by declining the

24 government's invitation to hold that all such reports are inherently reliable." Opp. at 8. This is

25 wrong. First of all, the Martin court nowhere discusses hearsay exceptions. In conducting the

26 proper balancing analysis, the Martin court examined the degree of "reliability" accorded to a

27
28 2 The Hall court alternately refers to the doctor as Dr. Grover and Dr. Glover. For sake of clarity, Plaintiffs refer to him as Dr. Grover throughout. 10
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1 urinalysis test as part of the confrontation balance. The court recognized that urinalysis reports

2 "are the regular reports of a company whose business it is to conduct such tests, and which

3 expects its clients to act on the basis of its reports." Martin, 984 F.2d at 314. But, the court

4 continued, in this case the government presented little information about the company

5 conducting the test, and the court therefore accorded the test little weight. [d. Contrary to

6 Defendants' representations, the court did not discuss a business records exception-or any other

7 hearsay exception-at all.

8

Instead, Martin actually went one step further: the court unequivocally stated that

9 "District courts should apply the balancing test to every alleged violation of the Morrissey right

10 to confrontation." 984 F.2d at 314. The Martin court reiterated that holding in a footnote later in

11 the opinion, stating, "[H]aving held that district courts must apply the Simmons right-cause

12 balancing test to every denial ofconfrontation, we think it obvious that a simple finding of

13 reliability, without attention to the [releasee's] side of the balance, would be insufficient." [d. at

14 n.12.

15

C. Defendants' Attempts to Support Their Desired Outcome by Relying on

General Flexibility and on Cases with Little or No Nexus to the Instant

16

Dispute Are Unconvincing.

17

1. Morrissey Sets Forth a Standard That Requires Flexibility and

Confrontation, Not Just Flexibility.

18

19

Defendants' Opposition relies heavily on the undisputed flexibility of due process

20 standards, quoting at page 5 the statements in Morrissey and Gagnon that "the process should be

21 flexible enough to consider evidence including letters, affidavits, and other material that would

22 not be admissible in an adversary criminal trial," and that Morrissey did not "intend to prohibit

23 use where appropriate of the conventional substitutes for live testimony, including affidavits,

24 depositions, and documentary evidence." Morrissey, 408 U.S. at 489; Gagnon, 411 U.S. at 782.

25

Plaintiffs do not dispute these principles. The principle of flexibility is stated in

26 Morrissey in the very same paragraph that states that among the "minimum requirements of due

27 process" is "the right to confront and cross-examine adverse witnesses (unless the hearing officer

28 specifically finds good cause for not allowing confrontation)." Morrissey, 408 U.S. at 489. The
11
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1 clear import of these two statements in the same paragraph within the Morrissey opinion is that

2 flexible use of "letters, affidavits, and other material" is allowed, provided that the "minimum

3 requirements of due process," including confrontation, are also met.

4

The simplest application of the flexibility language is to evidence submitted not against

5 the parolee, but by the parolee to defend against the charges or to oppose return to prison as a

6 sanction. Such evidence raises no confrontation problems, and allows maximum flexibility to

7 accept letters of support, declarations, and other material "that would not be admissible in [a] ...

8 criminal trial." Id.

9

For material offered against the parolee, the "minimum requirements of due process"

10 must be met, and the due process right to confrontation respected unless the hearing officer

11 "specifically finds good cause to deny confrontation." Id.

12

It must be noted here that Defendants' plan to impose an across-the-board, one-size-fits-

13 all rule of non-confrontation of some hearsay would prevent hearing officers from "specifically"

14 finding good cause to deny confrontation, and would thus violate due process as defined in

15 Morrissey. This is why Comito and the other cases following Morrissey require balancing in all

16 cases where unconfronted hearsay is offered, so that the hearing officer can make the required

17 specific finding.

18

2. Defendants' "Flexibility" Cases Do Not Negate the Basic Rules of

Confrontation.

19

Defendants assert a so-called "continuum" of process set forth in dicta in a thirty-year-old

20

Ninth Circuit case, United States v. Segal, 549 F.2d 1293 (9th Cir. 1977). Opp. at 5. Segal has

21

nothing to do with constitutional confrontation rights, but rather concerns the procedure for

22

making guilty pleas in probation revocation cases. The petitioner in Segal did not even seek a

23

revocation hearing, but rather admitted and pled guilty to the charges. Id at 1295.

24

A second new case cited by Defendants for the proposition that "the hearing officer may

25

consider hearsay evidence" is United States v. Miller, 514 F.2d 41 (9th Cir. 1975). Opp. at 5-6.

26

This short opinion rejects the appellant's objection to the admission of unauthenticated copies of

27

state court criminal records. Id at 42-43. The court's cursory analysis, citing only two cases28

12
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1 Morrissey and Gagnon-that predates the bulk of the leading cases on this disputed topic, is

2 unpersuasive. Additionally, the hearsay evidence admitted in Miller was not admitted pursuant

3 to a hearsay exception. Id.

4

Defendants' reliance on Ryan v. Montana, 580 F.2d 988 (9th Cir. 1978), is equally

5 unconvincing. Opp. at 5. Ryan had a combined probation revocation and deferred sentencing

6 hearing, at which he sought immunity from use of his testimony for a simultaneously pending

7 criminal indictment for the same act that constituted the alleged probation violation. Ryan, 580

8 F.2d at 990-91. After the court denied his request for immunity and revoked his probation, Ryan

9 petitioned for a writ of habeas corpus, arguing that it was improper for a court to deny him

10 immunity from his own testimony that might have been self-incriminating. Id. This case has

11 little or nothing to do with the instant dispute. Apart from vague background statements citing

12 the limited confrontation right in Morrissey and Gagnon, this case is entirely irrelevant. Id. at

13 992-93.

14

Finally, Defendants rely on Prellwitz v. Berg, 578 F.2d 190 (7th Cir. 1978), a Seventh

15 Circuit case that should be considered only as persuasive authority, and that contradicts Comito

16 and other binding Ninth Circuit and Supreme Court precedent. After Prellwitz had reported to

17 his probation officer for the first year of a three-year probation sentence, he absconded

18 supervision for five years before being arrested on another charge. Prellwitz, 578 F.2d at 191.

19 At his probation revocation hearing, Prellwitz's new probation officer relied on the departmental

20 record of supervision-generated by Prellwitz's former probation officer-to show that Prellwitz

21 had been failing to report, and that the probation officer had made attempts to contact Prellwitz.

22 Id.

23

The Seventh Circuit addressed Prellwitz's argument that the court erred by failing to

24 require the state to show good cause for failing to produce his original probation officer. Id. at

25 192-93. The court noted that Prellwitz was permitted to review and attach the record of

26 supervision itself, and denied his request to produce the probation officer who created the record

27 of supervision. Id. "Forcing the state to show good cause for not producing the hearsay

28 declarant would unwisely extend the limited due process rights of a probationer at the revocation
13
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1 hearing." Id at 192. The Prellwitz court's holding in that regard is contrary not only to Comito,

2 177 F.3d at 1170 ("every releasee is guaranteed the right to confront and cross-examine adverse

3 witnesses at a revocation, unless the government shows good cause for not producing the

4 witnesses"), but also to Morrissey v. Brewer, 408 U.S. at 489 ("the minimum requirements of

5 due process" include "the right to confront and cross-examine adverse witnesses (unless the

6 hearing officer specifically finds good cause for not allowing confrontation)"). To the extent that

7 this out-of-circuit case contradicts the clear mandates of Morrissey, the Mastership should deem

8 it non-persuasive.

9

Two other factors decrease the persuasiveness ofPrellwitz. First, the facts on which

10 Prellwitz was decided make it a poor choice on which to build a statewide confrontation policy.

11 Prellwitz concerned the simple issue of whether the probationer had reported to his officer during

12 the five years he was accused of absconding. In contrast to that narrow issue, the practical

13 outcome of this motion will be a statewide policy and procedure governing all sorts of factual

14 disputes, in which cross-examination of an accuser will be central to determining whether certain

15 acts occurred, whether the parolee committed the acts, and whether the parolee's conduct was

16 justified or unlawful. Such a policy should not be built on a case about a simple fact of

17 absconding which was not likely to be disputed. Second, Prellwitz was decided in 1978, two

18 decades before Comito, the controlling Ninth Circuit case, and only six years after Morrissey.

19 By 1999, the year of Comito, the federal courts had the benefit of decades of experience with

20 Morrissey procedures, and were in a far better position to make reasonable judgments about the

21 level of confrontation right needed to ensure reliable results? 22 / / /

23 / / /

24
25 3 Earlier in this case, the Valdivia Court had to sort through inconsistencies among out-of-circuit cases, and even within dicta in Ninth Circuit cases, regarding the requirements of due process in
26 parole revocation cases. See Valdivia v. Davis, 206 F. Supp. 2d 1068, 1076-1078 and 1077 n.19
(E.D. CaL 2003) (considering and rejecting as non-persuasive the holding ofEllis v. District 0/
27 Columbia, 84 F.3d 1413 (D.C.Cir. 1996), and dicta in Pierre v. Wash. St. Bd O/Prison Terms & Paroles, 699 F.2d 417 (9th Cir. 1983), regarding the preliminary hearing requirements). The
28 Court correctly chose to apply controlling authority, and to reject non-controlling authority when it is not helpful or not consistent with due process requirements. 14
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1

D. Plaintiffs' Reliance on Confrontation in Other Administrative Proceedings Is

Both Relevant and Persuasive.

2

3

Defendants maintain that "[n]one of what occurs in ... administrative proceedings is

4 relevant to the issue of whether Defendants are properly following the law concerning the

5 treatment of hearsay evidence in revocation proceedings." Opp. at 9. This statement belies

6 Defendants' repeated insistence that revocation proceedings are distinct from criminal

7 proceedings, requiring less due process. Opp. at 9. To the extent any "continuum" of due

8 process proceedings should be examined, the continuum should be examined for confrontation

9 standards, which Plaintiffs have done here.

10

Revocation proceedings are a type of administrative proceeding in which substantial

11 rights are at stake. The U.S. Supreme Court instructed in an administrative proceeding involving

12 the discontinuation of welfare payments that, "In almost every setting where important decisions

13 tum on questions of fact, due process requires an opportunity to confront and cross-examine

14 adverse witnesses." Goldberg v. Kelly, 397 U.S. 254, 269 (1970). Morrissey cites Goldberg as

15 one of its sources for the due process standards. Morrissey, 408 U.S. at 481, 485, 486, 487.

16 Plaintiffs' reliance on across-the-board guarantees of confrontation in other areas of

17 administrative law is relevant and persuasive evidence that Defendants' attempt to short-circuit

18 confrontation is ill-advised.

19 III. Confrontation Rights Are Not Satisfied by Adding More Hearsay Evidence On Top

of Other Hearsay Evidence Because Such So-Called "Corroboration" Merely Adds

20

to the Number of Unconfronted Accusers, Aggravating the Constitutional Violation.

21

Defendants do not address the cases presented by Plaintiffs' Motion at page 18 to show

22 that, in hearings where hearsay is allowed ifreliable, reliability must be shown by "extrinsic"

23 evidence, not by the hearsay itself. Instead, Defendants rely on Comito itself, which does not

24 support the proposition they assert.

25

Defendants state that the Comito court considered other hearsay evidence to corroborate

26 the hearsay at issue: Dierdre Connell's statements to Officer Perdue. Opp. at 10. Defendants

27 describe four pieces of corroborative evidence: (1) the stipulated testimony of a Las Vegas Police

28 Detective as to reports made by Connell; (2) a memorandum written by Connell that listed the
15
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1 dates and amounts of the transactions at issue; (3) several of Comito's unemployment

2 compensation documents and his bank statement; and (4) Officer Perdue's testimony as to

3 discussions he had with a credit card fraud investigator. Id.; see also Comito, 177 F3d at 1168-

4 69. Defendants conclude that the court thus considered this evidence--"which obviously

5 included hearsay"-as corroborative, just not corroborative enough to meet the Government's

6 burden.

7

This mischaracterizes the Comito opinion. Immediately after describing the above

8 evidence, the court stated, "While the additional evidence may also be subject in whole or in part

9 to valid objections based on hearsay and Comito's right to confrontation, those challenges are not

10 raised before us. Only Officer Perdue's testimony regarding what Connell purportedly told him

11 is at issue in this appeal." Comito, 177 F3d at 1169 (emphasis added). Thus, the court is

12 explicitly saying that the additional evidence itselfis objectionable; it is simply not the subject of

13 the appeal.

14

The court does not leave it at that. It adds in one footnote regarding the stipulated

15 testimony of the Las Vegas Police Detective that "Defense counsel stipulated to this testimony

16 with the caveat that Comito's hearsay objections were not waived." Id. at n.3. In another

17 footnote, the court again expresses its doubts about the propriety of the supposedly corroborative

18 evidence, noting that Connell's memorandum "was hearsay," that the stipulated testimony was

19 "more hearsay," and that Officer Perdue's account ofa conversation with the fraud investigator

20 "suffers from the same defect, doubled." Id at 1172 n.9. Far from condoning the practice of

21 corroborating hearsay with hearsay, the court seems pained that the question of corroboration of

22 hearsay with hearsay was "not raised before us." Id at 1169. This confirms the common-sense

23 conclusion that piling more out-of-hearing statements on top of each other does not cure the

24 confrontation problem; piling on makes it worse.

25

Defendants subject Hall to similar distorting treatment. Hall is not a case involving the

26 piling up of hearsay statements to corroborate each other. To the contrary, in Hall "the

27 government put on the five witnesses who had been in contact" with the alleged victim, Susan

28 Hawkins, whose hearsay statements to Officer Gross were the statements that Mr. Hall did not
16
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1 get to confront. 419 F.3d at 983. Nearly all of the corroboration at issue in Hall came from these

2 live witnesses and was subject to confrontation and cross-examination. Defendants' Opposition,

3 however, enumerates the evidence in Hall as if the corroborating statements were coming in as

4 unconfronted hearsay, which Defendants propose to do here as a matter of policy under Valdivia.

5 See Opp. at 11. This confusion between corroborating testimony from live witnesses and so-

6 called "corroborating" hearsay distorts Hall beyond recognition.

7

Defendants describe Dr. Grover's testimony as "medical conclusions of the treating

8 physician (which were based in part on hearsay from Hawkins)." Opp. at 1L This is a

9 misunderstanding of the hearsay rule. A piece of evidence is either hearsay, or it is not. Hearsay

10 is an out-of-court statement "offered in evidence to prove the truth of the matter asserted." See

11 Fed. R. Evid. 80l(c). The corroborating evidence from Dr. Grover was not what he heard

12 Ms. Hawkins say, but rather the things Dr. Grover himself saw when "he personally examined"

13 Hawkins, the contusions on her chest, back and elbow. 419 F.3d at 983. This first-hand

14 testimony of Dr. Grover, who testified live at the revocation hearing, and was subject to

15 confrontation and cross-examination, is not the type of unconfronted hearsay that Defendants

16 here would pile up to "corroborate" other unconfronted hearsay.

17

Similarly, Officer's Gross's live testimony at the hearing as to his discovery of a golf club

18 where Hawkins said it would be is not hearsay; it is Officer Gross's live testimony as to his own

19 observations. Id. at 983-84.

20

The live, confronted testimony of "Red," Mr. Hall's and Ms. Hawkin's drinking

21 companion, that he witnessed Hall slap Hawkins, is not hearsay testimony. Id. at 984.

22

Hawkins' documented physical bruising in photographs authenticated by the police officer

23 who took them, Officer Tagaban, another live witness at the hearing, is not hearsay evidence. Id.

24 at 983.

25

Mr. Hall's own statement to his probation officer, admitting that he hit Ms. Hawkins, is,

26 under the rules of evidence, a party admission, not hearsay. Id. at 986.

27

The only statements used as corroboration in Hall were Ms. Hawkin's own statements to

28 various persons (the five persons who testified live at the hearing), the consistency of which over
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1 time were cited in Hall as an indication of reliability for purposes of the Comito balancing test.

2 Id at 987.

3

In light of the wealth of non-hearsay corroborating statements from live witnesses at the

4 hearing who were subject to confrontation and cross-examination, Defendants' suggestion that

5 the reliability of corroborative evidence in Hall was "all hearsay," is inaccurate and misleading.

6 Opp. at 11.

7

Defendants decline to even address In re Miller, 145 Cal. App. 4th 1228 (Cal. Ct. App.

8 2007), in which the Fourth District Court of Appeal granted a writ of habeas corpus because of a

9 Comito error by one of Defendants' own Deputy Commissioners. The In re Miller case provides

lOan excellent example of a court condemning the use of hearsay evidence to corroborate proffered

11 hearsay.

12

In that case, Miller's parole was revoked on charges of sexual battery and forced oral

13 copulation allegedly occurring in a hotel. In re Miller, 145 Cal. App. 4th at 1231. The

14 revocation was based in part on testimony from Officer Norton, an investigating officer. Id. at

15 1232-33. Officer Norton testified that a hotel front desk employee told Officer Norton that the

16 victim told the employee that Miller had tied her up and pushed her around. Id at 1238. Officer

17 Norton also testified that the hotel's housekeeping staff told him that they had found towels tied

18 together, consistent with a statement allegedly made by the victim. Id.

19

The Attorney General argued that Officer Norton's testimony as to what the hotel staff

20 said corroborated hearsay statements made by the non-testifying victim.

21

In other words, the parole agent proffers as corroborating evidence

22

third-parties' unsworn verbal statements, precisely the type of evidence Comito characterizes as "the least reliable type of hearsay."

23

In addition, the Attorney General invites us to use one portion of

Officer Norton's testimony, based entirely on this unreliable hearsay,

24

to corroborate a second portion [of] his testimony, also based on

25

hearsay. Rather than providing a strong indication of the reliability of

the hearsay testimony, adopting such a criterion would eviscerate the

26

need to provide indicia of reliability before hearsay evidence is

27

received. Were this standard adopted, unreliable hearsay evidence could become reliable simply by attributing the evidence to several

28

sources.

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1
2 Id. at 1238. It is plain from this passage that a court actually presented with the question of

3 whether hearsay evidence may be corroborated by other hearsay evidence unequivocally

4 answered in the negative. That is precisely what happened in Parolee 3's second revocation

5 hearing. Motion at 6-7; Huey Decl. , 22 & Ex. 13.

6

Defendants' position-that inadmissible hearsay evidence that has not been admitted

7 under Comito may somehow be admitted to bolster other hearsay evidence-lacks legal support

8 and defies common sense. The Comito court implicitly rejected such an approach, and the In re

9 Miller court issued a writ in part because of it.

IV.
10 11

The Problem of Postponing a Hearing Instead of Granting a Comito Objection Is Plainly within the Scope ofthis Motion, and Parolee 3's Case Clearly Illustrates that Issue.

12

Defendants first contend that situations in which a hearing officer puts a parolee to the

13 choice between a timely hearing and the right to confrontation are somehow outside of the scope

14 of this dispute. Opp. at 12. But, this practice implicates the core of what Comito was designed

15 to protect: confrontation. If a parolee is put to the choice of confronting his accuser at a later

16 date beyond the Valdivia time frames, or having a timely hearing in which he is returned to

17 prison without the right of confrontation, his constitutional rights are violated. As set forth in the

18 moving papers, if a hearing officer could repeatedly postpone a revocation hearing if a percipient

19 adverse witness was absent instead of holding the hearing, Defendants have eviscerated the core

20 of the confrontation right. Timely hearings and confrontation are linked. They are both rights

21 guaranteed by the Constitution and the Valdivia Permanent Injunction. Defendants' practice of

22 trying to condition one right on the other has further "intermingled" the two. Opp. at 12.

23

Second, Defendants contend that Parolee 3 was not put to a choice of having a timely

24 hearing or having his Comito objection ruled upon. Opp. at 12. Yet, on the very next page of

25 their opposition, Defendants cite the hearing officer's notice ofdecision at the postponed hearing

26 stating that "the last hearing ... was postponed based on Comito objection." Opp. at 13. Indeed,

27 at the first hearing, the hearing officer stated on the record, "I will note your [Comito] objection,

28 counsel; however, I'm going to - part ofmy decision - I'm not overruling them; I'm sustaining it

19
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1 to the extent that we're going to postpone it and subpoena all the witnesses...." Huey DecL ~ 21

2 & Ex. 11 at 24: 15-20. The DC's record of decision shows that he granted the Comito objection,

3 and postponed the relevant charges. Id. ~ 21 & Ex. 12 at 3,5. Defendants may insist without

4 evidentiary support that they do not put parolees to the choice of a timely hearing and

5 confronting witnesses, but they utterly fail to rebut Plaintiffs' evidence demonstrating exactly

6 that scenario.

7

Finally, Defendants point to the Comito analysis in Parolee 3's second hearing as a

8 "proper balancing." Opp. at 13. The second hearing, however, was a clear example of multiple

9 confrontation violations, as the hearing officer piled one unconfronted out-of-hearing statement

lOon top of another, and allowed them all to come in against the parolee without confrontation and

11 cross-examination because they somehow "corroborated" each other. Defendants emphasize that

12 the DC here stated, "Three independent and separate statements to deputy Shriver, who did not

13 attend the last hearing which was postponed based on Comito objection. Each corroborate[s]

14 each other and the weight of the corroborated hearsay evidence outweighs P's interest in

15 confrontation." Opp. at 13. Such grouping of unreliable evidence is precisely the approach

16 rejected by the In re Miller court when it considered two "independent" hearsay statements to a

17 police officer. See In re Miller, 145 Cal. App. 4th at 1238 (rejecting Attorney General's

18 invitation "to use one portion of Officer Norton's testimony [statement of hotel employee], based

19 entirely on this unreliable hearsay, to corroborate a second portion [of] his testimony [statement

20 of housekeeping staff], also based on hearsay").

21 V. 22

Funding Legal Representation for Parolees Aggrieved by Defendants' Unlawful Comito Policies Is Essential to Provide Meaningful Relief and Advance Defendants' Compliance with Valdivia.

23

Constitutional injury need not be present at a magnitude of tens, hundreds, or thousands to

24 be severe. See, e.g., Santa Fe Ind. School Dist. v. Doe, 530 U.S. 290, 313-14 (2000) (discussing

25 "serious constitutional injury" that results from forcing a student to participate in an act of

26 religious worship in violation of the Establishment Clause). Even violation of the confrontation

27 rights of one parolee gives rise to a great enough harm to mandate court intervention.

28
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1

As set forth in our moving papers, Defendants have a longstanding problem with Comito.

2 See Motion at 4, 20 (citing First and Second Reports of the Special Master). Very few parolees

3 can afford to hire experienced counsel to vigorously and quickly appeal the violation of their

4 Comito rights in revocation hearings. The few that do are very fortunate, and sometimes bring

5 the profundity of Defendants, misunderstanding of this dispute to a neutral tribunal. See, e.g., In

6 re Miller, 145 Cal. App. 4th 1228.

7

The funding of select writs is in Defendants' interest. The writs would provide guideposts

8 for future cases, helping DCs, Plaintiffs and Defendants understand the courts' interpretation of

9 Comito. Indeed, with more decisions on which to base their Comito policy, and some

10 accountability for DCs to get it right (as there is currently virtually no appeal process that

11 informs a DC when they get it wrong), the funding of writs might ultimately help Defendants

12 self-regulate their own Comito policy.

13

Far from being the drastic remedy that Defendants make it out to be, all parties would be

14 well·served by the funding of a limited number of CalPAP writs to remedy Comito violations

15 against Valdivia class members. For the reasons set forth above and in our motion, Plaintiffs

16 respectfully request that the Special Master issue a Report and Recommendation to the Court

17 requiring Defendants to fund a limited number of CalPAP writs for parolees who allege that their

18 Comito rights were violated in revocation hearings.

19 VI. The Defendants' Attacks on the Four Exemplar Cases Are Incorrect and Inconsequential to the Outcome of this MotIOn.
20

21

Only one fact need be found to justify a Recommendation that Plaintiffs' motion be

22 granted: Defendants have stated their intention to distribute policies and guidelines that are

23 inconsistent with parolees' confrontation rights, contrary to their duty under Paragraph 24 of the

24 Valdivia Permanent Injunction to develop and implement policies and guidelines that are

25 consistent with due process and controlling law.

26

The exemplar cases of Parolees 1-4 were provided for context, to demonstrate that the

27 outcome of this dispute has consequenc,es in the real world. This is not an appeal of the

28 revocation outcomes for Parolees 1-4, and the Mastership and the Court need not base its
21
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1 decision on their cases. The proper focus, instead, is whether Defendants' Comito policies are in

2 compliance with Paragraph 24 of the Valdivia Permanent Injunction.

3

Nonetheless, Defendants' attacks on these examples are in error. For ease of reference,

4 each exemplar parolee's case is addressed in the Appendix to this Reply.

5

CONCLUSION

6

As set forth in our proposed Report and Recommendation, Plaintiffs respectfully request

7 that the Special Master issue a Report and Recommendation to the Court answering all three

8 questions presented at page 3-4 of the motion in the negative, i.e., (1) that California may not

9 return a parolee to prison based on out-of-hearing statements from persons the parolee never gets

10 to confront or cross examine merely because the statement might fall within a state or federal

11 hearsay exception; (2) that denial of confrontation is not excused if the state lines up several

12 unconfronted hearsay statements next to one another and allows each statement to corroborate its

13 neighbors, even though all are from witnesses are who never confronted or cross-examined by

14 the parolee; and (3) that California may not make a parolee choose between the right to a timely

15 hearing and the right to confront adverse witnesses.

16

Plaintiffs respectfully request that the Special Master recommend entry of an Order

17 (1) requiring Defendants to revise their policies, procedures, standards, guidelines, and training

18 materials to conform to the law on this issue, (2) to train all hearing officers on this matter; and

19 (3) to provide funding for select writs to remedy the constitutional violations that have occurred.

20 Dated: November 27,2007
21
22

Respectfully submitted, ROSEN, BIEN & GALV AN, LLP

23

By: lsi Loren G. Stewart

24

Loren G. Stewart

Attorneys for Plaintiffs

25

26

27

28
22
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1 EDMUND G. BROWN JR.
Attorney General ofthe State of California 2 JAMES M. HUMES
Chief Assistant Attorney General 3 FRANCEST.GRlrnDER
Senior Assistant Attorney General 4 ROCHELLEC. EAST
Supervising Deputy Attorney General 5 VICKIE P. WHITNEY, State Bar No. 145316
Supervising Deputy Attorney General 6 JESSICA R. DEVENCENZI. State Bar No. 232427
Deputy Attorney General 7 1300 I Street, Suite 125
P.O. Box 944255 8 Sacramento, CA 94244-2550
Telephone: (916) 445-4979 9 Fax: (916) 324-5205
Email: Jessica.Devencenzi@doj.ca.gov 10
Attorneys for Defendants 11

12

IN THE UNITED STATES DISTRICT COURT

13

FOR THE EASTERN DISTRICT OF CALIFORNIA

14

15 JERRY VALDIVIA, et aI.,

2:94-cv-0671 LKK GGH P

16

Plaintiffs,

17

v.

18 ARNOLD SCHWARZENEGGER, et al.,

DEFENDANTS' RESPONSE TO
PLAINTIFFS' REPLY TO OPPOSITION
TO MOTION TO ENFORCE
PARAGRAPH 24 OF THE VALDIVIA
PERMANENT INJUNCTION

19

Defendants. Hearing: December 14, 2007

Time: 10:00 a.m.

20

Location: Rosen, Bien & Galvan, LLP

Officer: Special Master

21

Chase Riveland

22

23

Under the agreement reached between all counsel and the Special Master, Defendants

24 submit the following response to Plaintiffs' reply to Defendants' opposition to Plaintiffs' Motion 25 to Enforce Paragraph 24 of the Valdivia Permanent Injunction.

26

INTRODUCTION

27

Defendants' position -- that hearsay subject to a long-standing exception is admissible,

28 without balancing, as a substitute for live testimony because it bears the indicia of reliability that

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1

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1 establishes good cause to overcome confrontation -- will not make live witnesses the exception in

2 revocation proceedings nor will it result in a shift of burdens of proof. Clearly, hearsay

3 exceptions have not done that in criminal prosecutions, or anywhere else, and there is no reason

4 to believe or basis in fact to which Plaintiffs can cite to demonstrate that will occur in revocation

5 hearings. Plaintiffs' contention that parolees will have to show that statements do not fall within

6 a long-standing hearsay exception in order to face a live witness is absurd. Fundamentally, the

7 use of hearsay exceptions in courts has not resulted in the dire consequences Plaintiffs forecast

8 and there is no reason to sunnise that parole revocation proceedings will be any different.

9

To be clear, Defendants are not seeking to change the rules - they are seeking affinnation of

10 the rules as set forth in applicable case law. It is indisputable that neither United States v. 11 Comito, 177 F.3d 1166 (9th Cir. 1999) nor United States v. Hall, 419 F.3d 980 (2005), directly

12 confronted the issue of whether hearsay that is subject to a long-standing exception, requires the

13 government to engage in a full balancing approach in order for it to be admissible in a parole

14 revocation proceeding. What is known from Comito and Hall, consistent with Morrissey v.

15 Brewer, 408 U.S. 471 (1972), and Gagnon v. Scarpelli, 411 U.s. 778 (1973), is that a parolee's

16 right to confrontation is not absolute and that substitutes for live testimony may be used where

17 there is an indicia of reliability to that substitute. Moreover, such substitutes that bear indicia of

18 reliability to establish good cause for not producing a live witness include evidence that falls

19 within long-standing exceptions to the hearsay rule. Thus, where the government can establish

20 that evidence (such as a parole officer's records) come within a long-standing hearsay exception

21 (e.g., the business records exception), they are admissible without having to engage in any

22 balancing. and the parolee's confrontation right is satisfied since the indicia of reliability as a

23 result of the exception, establishes the good cause for not producing the parole officer. This

24 position is shared by the Ninth Circuit as set forth in Hall.

2S

Defendants will not belabor the arguments set forth in detail in their opposition but simply

26 address the faulty law and logic Plaintiffs rely on in their reply to both mischaracterize the effects

27 of Defendants' position and to effectively ask that the Special Master ignore or overturn relevant

28 precedential decisions.

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ARGUMENT

2 I. Defendants Have Not Mischaracterized Comito or Ha.ll.

3

Plaintiffs generally accuse Defendants ofmischaracterizing or distorting Comito and Hall.

4 The accusation is false. While in their opening brief, Plaintiffs state that nowhere in Comito did

5 the Ninth Circuit suggest that trustworthy hearsay is an exception to the rule, when Defendants'

6 opposition properly points out that the court was never confronted with the role of hearsay

7 exceptions because of the limited nature of Comito, Plaintiffs' reply incongruously tries to

8 undermine the Defendants' arguments by relying on the very language cited by Defendants as

9 limiting the scope of Comito - that only Officer Perdue's testimony is at issue (and not additional

10 evidence that mayor may not be subject to objections). (Plft. Reply at 16.) Defendants correctly

II observed (as admitted by Plaintiffs' reply) that Comito cannot be read to apply to issues it did not

12 expressly address.

13

Plaintiffs also incorrectly assert that the court in Comito was "explicitly saying that the

14 additional evidence itself is objectionable." (Plft. Reply at 16, lines 11-13.) As stated by the

15 court, "the additional evidence may also be subject in whole or in part to valid objections based

16 on hearsay and Comito's right to confrontation." Comito, at 1169 (emphasis added). However,

17 since none of that was before the court, as Defendants rightly pointed out, issues surrounding the

18 additional evidence -- including that which may have been subject to a hearsay exception -- were

19 not within the ambit of the Comito decision. The only thing considered by the court in Comito

20 was hearsay evidence that was not subject to any exception and, thus, Comito did not address

21 whether hearsay subject to a long-standing exception is admissible without engaging in full

22 balancing.

23

Also, in footnote 1 of Plaintiffs' reply, they contend that Defendants erroneously state that

24 in Comito, the court considered the traditional indicia of reliability as part of the government's

25 good cause. (Pltf. Reply at 7.) Not only is that exactly what the court did in Comito, but the

26 Ninth Circuit reiterated the point in Hall: "in determining the government's good cause in not

27 producing a witness, we look to 'both the difficulty and expense of procuring witnesses and the

28 traditional indicia ofreliability borne by the evidence. '" Hall, at 988.

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II. 2

Plaintiffs' Advocation of Crawford v. Washington to Argue That Hearsay Exceptions in the Context of Parole Revocation Hearings Do Not Satisfy Sixth Amendment Confrontation Is Wholly Erroneous.

3

Plaintiffs' reply devotes a great deal of argument in attempting to undermine Defendants'

4 position that hearsay exceptions negate Comito balancing, by improperly asserting that Crawford

5 v. Washington, 541 U.S. 36 (2004), has some application to revocation hearings. Simply put,

6 Plaintiffs' argument runs wholly contrary to the law governing parole revocation hearings.

7

Crawford addressed the Sixth Amendment rights of the accused in a criminal prosecution; it

8 did not address the due process rights attendant to post-conviction proceedings for violations of
9 conditions of release -- and the distinction is important. Specifically, in u.s. v. Hall, 419 F.3d

10 980 (200S), decided the year after Crawford, the defendant argued that the use of Hawkins'

11 hearsay statements at his revocation hearing violated his Sixth Amendment right to confrontation

12 as articulated in Crawford. Id. at 984-85. The Ninth Circuit could not have been more clear:

13 n[w]e reject Halls' assertion that Crawford extends the Sixth Amendment right to confrontation

14 to revocation of supervised release proceedings.II Id. at 985. The Ninth Circuit went on to state,

15 "We, like the two circuits that have also addressed this question, see no basis in Crawford or

16 elsewhere to extend the Sixth Amendment right of confrontation to supervised release

17 proceedings. See United States v. Aspinall, 389 F.3d 332, 342 (2d Cir. 2004) (holding that

18 Crawford does not apply to probation revocation because Crawford and the Sixth Amendment

19 apply only to "criminal prosecutions" and "it has long been established that probation revocation,

20 like parole revocation, is not a stage of a criminal prosecution") (internal quotations omitted);

21 United States v. Martin, 382 F.3d 840,844 n.4 (8th Cir. 2004) (holding that confrontation right in

22 criminal prosecutions does not apply to supervised release revocation proceedings because they

23 are not part of a criminal prosecution)." Id. at 985-986.

24

Unlike the criminal proceeding in Crawford where the standard for admissibility of hearsay

25 evidence is based on the Sixth Amendment, a due process standard is used to determine

26 admissibility in a parole revocation proceeding. Morrissey v. Brewer, 408 U.S. 471, 482 (1972).

27 "Because 'revocation deprives an individual, not of the absolute liberty to which every citizen is

28 entitled, but only of the conditional liberty properly dependent on observance of special parole

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1 restrictions' the full protection provided to criminal defendants, including the Sixth Amendment

2 right to confrontation does not apply to them." Hall, at 985, citing Morrissey, at 482.

3

Accordingly, it is clear that neither the Sixth Amendment nor Crawford's holding have any

4 application to post·conviction release revocation proceedings. It is irrelevant in the context of

5 this motion what the court did in Crawford because it has no bearing on parole revocation

6 proceedings. Plaintiffs' suggestion that Crawford has some application here is contrary to Hall

7 and to Morrissey. Moreover, accepting their proposition that hearsay statements in revocation

8 proceedings are subject to the Sixth Amendment right to confrontation and the principles

9 articulated in Crawford, would require that the Special Master overturn Hall.

10

Importantly, after holding that Crawford is not applicable, the Ninth Circuit in Hall goes on

11 to expressly indicate its view with regard to hearsay exceptions in revocation proceedings:

12 "long·standing exceptions to the hearsay rule that meet the more demanding requirements for

13 criminal prosecutions should satisfy the lesser standard of due process accorded the respondent in

14 a revocation proceeding.'! Hall, at 987. Hall's statement here is further bolstered by the Second

15 Circuit's decision in Aspinall, cited by Hall as to Crawford's inapplicability, where it held that

16 due process does not oblige that a balancing analysis be performed with respect to a "proffered

17 out·of-court statement [that] is admissible under an established exception to the hearsay rule."

18 Aspinall, at 344 (2d Cir. 2004), see also United States v. Williams, 443 F.3d 35, 45 (2d Cir.

19 2006). Defendants' position is thus consistent with the federal cases that have directly opined on

20 the issue.

21 III. 22

The Ninth Circuit Has Established that Morrissey's Flexibility of Process and
Substitutes for Live Testimony Not Only Apply to Both Sides but that Such Substitutes Satisfy Confrontation.

23

Plaintiffs' reply argues that the language in Morrissey v. Brewer, 408 U.S. 471, 489 (1972).

24 that "the process [revocation] should be flexible enough to consider evidence including letters,

25 affidavits, and other material that would not be admissible in an adversary criminal trial," means

26 that flexibility in terms of substitutes for testimony only applies to evidence submitted by the

27 parolee, not evidence against the parolee. (Pltf. Reply at pp. 11-12.) Plaintiffs' interpretation is

28 not supported by any law and, in fact, is contradicted by it.

Defs.' Response to Reply to Opp. to Motion to Enforce Par. 24 of Penn. Inj.
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The Ninth Circuit in United States v. Simmons, 812 F.2d 561 (9th Cir. 1987),11 in affinning

2 the admission ofhospital records that bore traditional indicia ofreliability, coupled with the

3 "diminished procedural protections which attach to a probation revocation proceeding," stated,

4 "[0 ]ur cases also suggest that the reliability of evidence may provide a basis for its admission."

5 [d. at 564-65. In reaching its decision that hearsay evidence may be admissible in revocation

6 hearings, the Ninth Circuit in Simmons cites to Prellwitz v. Berg, 578 F.2d 190 (7th Cir. 1978).

7 Simmons, at 564. In Prellwitz, the admissibility of Department records documenting

8 unsuccessful attempts ofpetitioner's original probation officer to locate petitioner when he failed

9 . to report were upheld because "the report was one of the 'conventional substitutes for live

10 testimony' which the Court has recognized to be pennissible in probation revocation

11 proceedings." Prellwitz, at 192 (citing Gagnon v. Scarpelli, at 783 n.s). The substitutes for live

12 testimony that Gagnon endorses as part of the flexibility Morrissey speaks to, is not just for the

13 benefit of the parolee but, as Simmons and Prellwitz demonstrate, is also for the benefit of the

14 government to use against a parolee. Plaintiffs' hypothesis that only the parolee may benefit

15 from such substitutes is wholly erroneous.

16

Moreover, Simmons itself demonstrates that confrontation can be satisfied simply by the

17 reliability of the evidence (such as business records which is an exception to the hearsay rule).

18 The flexibility ofMorrissey embraces the substitutes for live testimony that Gagnon identifies as

19 meeting the parolee's confrontation rights. In other words, as Simmons determined, traditional

20 indicia of reliability

21 IV.

Plaintiffs' Attempts to Detract from Cases Cited by Defendants Is Unavailing.

22

Plaintiffs' reply endeavors to divert attention from various cases cited by Defendants in their

23 opposition, with criticisms that suggest legal precedent, that has never been reversed, should

24 simply be discarded. Plaintiffs disparage the cases as "a thirty-year-old Ninth Circuit case," a

25 "cursory analysis, citing only two cases - Morrissey and Gagnon," as having "vague background

26 statements citing the limited confrontation right in Morrissey and Gagnon," and, in a case heavily

27

28

1. Plaintiffs' motion heavily relies on United States v. Martin, 984 F.2d 308 (9th Cir. 1993)

which refers to the balancing from Simmons. (See Pltf. Reply at 11.)

Defs.' Response to Reply to Opp. to Motion to Enforce Par. 24 of Perm. Inj. 6

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1 relied upon by the Ninth Circuit in constructing the Simmons balancing test for confrontation (the

2 precursor to Comito), stating it has only limited persuasiveness and is "a poor choice on which to

3 build a statewide confrontation policy." (Pltf. Reply at 12-13.) None of Plaintiffs' criticisms

4 withstand scrutiny.

5

Defendants' opposition briefraised United States v. Segal, 549 F.2d 1293 (9th Cir. 1977),

6 cert. denied, 431 U.S. 919 (l977) - the "thirty-year-old Ninth Circuit case," because, based on

7 Supreme Court guidance, the court identifies four types of proceedings and the amount of

8 process which is due for each, from greater to lesser. Segal demonstrates that parole revocation

9 proceedings rank as third out of the four, meaning there is less process due than for criminal

10 prosecutions and probation revocation hearings with imposition of a sentence theretofore

11 suspended, which rank as numbers one and two, respeCtively. Point being, that in no event

12 should a parole revocation hearing afford greater process or rights than is accorded defendants in

13 criminal prosecutions. This is wholly consistent with Morrissey. Morrissey, at 489. That the

14 case may be thirty-years-old, does nothing to undermine its relevance, especially since it has

15 never been overturned.

16

Plaintiffs' criticism of United States v. Miller, 514 F.2d 41 (9th Cir. 1975) is also curious-

17 that it is a cursory analysis and only cites Morrissey and Gagnon. (Pltf. Reply at 12-13.) In

18 Miller, the only witness who testified at the revocation hearing was Miller's probation officer,

19 and his testimony was from records maintained by another probation officer, objected to as

20 hearsay. Id. at 42. Based on the evidence, it was determined that Miller had been convicted of

21 three criminal offenses while on probation, resulting in the revocation of his probation. Id. at 41.

22 The Ninth Circuit found such evidence reliable and thus, admissible, relying on the language of

23 Morrissey and Gagnon, that revocation hearings are not to be equated to criminal prosecutions

24 and, that the process should be flexible to consider evidence that may not otherwise be

25 admissible in a criminal prosecution. Id. at 42-43. The conciseness of the Miller opinion, a case

26 that has never been reversed, has no effect on its validity or applicability.

27

Similarly, Plaintiffs' attack on Ryan v. Montana, 580 F.2d 988 (91l1 Cir. 1978), is meritless.

28 Plaintiffs simply cast aside as "vague background statements," the Ninth Circuit's reiteration of

Defs.' Response to Reply to Opp. to Motion to Enforce Par. 24 of Penn. Inj.
7

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the due process principles governing revocation proceedings which includes Morrissey and

2 Gagnon - two cases that are clearly instrumental in the injunction in this case. After restating

3 the scale of due process protections identified in Segal, the Ninth Circuit in Ryan reaffirms that

4 the right to confront and cross-examine adverse witnesses afforded in revocation hearings is not

5 absolute and, based on this Circuit's cases, includes not only that illegally seized evidence can be

6 used, but that the hearing officer may consider hearsay evidence such as that included in a

7 probation officer's report. Id. at 992-93. Ryan not only cites to Miller (discussed above), but

8 importantly, has never been overturned, not even by Comito.

9

Finally, Plaintiffs have not undermined Prellwitz v. Berg, 578 F.2d 190 (7 th Cir. 1978).

10 First, Prellwitz is not contrary to either Comito or Morrissey but is instead, consistent with both.

11 Prellwitz discusses and heavily relies on Morrissey (and Gagnon) to formulate the conclusion

12 that "a record kept in the ordinary course of business" -- the business records exception to the

13 hearsay rule -- is admissible in a revocation hearing because it is one of the "conventional

14 substitutes for live testimony" that the Supreme Court has determined satisfies confrontation

15 since it bears "recognized indicia of reliability." Id. at 192. Plaintiffs suggest that a reason not to

16 follow Prellwitz is because it was decided six years after Morrissey but that is nonsensical and

17 finds no basis in the law.

18

Importantly, as Comito even states, the right to confront and cross-examine derived from

19 Morrissey exists unless the government shows good cause for not producing the witness.

20 Comito, at 1170. It is undisputed that the government has the right to use substitutes for live

21 testimony where they bear indicia of reliability. Gagnon, at 783 n.5. Substitutes for live

22 testimony that bear the indicia of reliability and thus, satisfy good cause, may be found in

23 evidence admissible under long-standing hearsay exceptions. Prellwitz, at 192; Hall, at 987.

24

Plaintiffs are also incorrect in asserting that Prellwitz is not persuasive here. As set forth

25 above, the Ninth Circuit in Simmons cites to Prellwitz as one of the "other circuits that agree that

26 hearsay evidence may be admissible in probation revocation hearings." Simmons, at 564.

27 Plaintiffs' trivializing Prellwitz as a "simple fact of absconding" case that should not be relied

28 upon to clarify whether hearsay exceptions satisfy confrontation, is itself simplistic because they

Defs.' Response to Reply to Opp. to Motion to Enforce Par. 24 of Perm. Inj.
8

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1 ignore that Prellwitz speaks to the overarching issue of what constitutes good cause to overcome

2 the parolee's conditional right to confrontation in revocation hearings. And its relevance, that

3 hearsay exceptions require admissibility without more, is borne out by the same principle being

4 reiterated by the Ninth Circuit after Comito, in its decision in Hall. Hall, at 987.

5 V.

What Occurs in Other Administrative Proceedings Is Irrelevant.

6

Plaintiffs ask that the Special Master not find persuasive, on-point federal authority - be it

7 Ninth Circuit cases that Plaintiffs think. are too old, or cases from other federal circuits who have

8 directly dealt with the subject of this motion simply because they are from other circuits - while

9 at the same time asking that unrelated administrative proceedings (such as welfare payments) be

10 considered relevant and persuasive. Such a position defies logic. Simply put, where there are

11 existing, on~point federal cases, resort to matters that are off~the-mark, is not warranted. Even

12 the Ninth Circuit, in the paramount cases involved here (Comito and Hall as well as others),

13 expressly rely upon cases from other circuits who have directly decided issues that the Ninth

14 Circuit has not.

15

Further, Plaintiffs' reliance on Goldberg v. Kelly, 397 U.S. 254 (1970), because Morrissey

16 looked to the case, is misguided. Morrissey considered Goldberg on the following: (1) as part of

17 detennining whether procedural protections are due; (2) the nature of a "preliminary hearing" to

18 determine probable cause; (3) whether someone not directly involved in the case should find

19 reasonable ground exists for revocation ofparole; and (4) whether the decision maker should

20 state reasons for his determination as well as the evidence relied upon. However, Morrissey in

21 no way looked to Goldberg to define the confrontation rights afforded to a parolee in revocation

22 matters. Goldberg, therefore, is not relevant to the issue presented by Plaintiffs' motion here.

23 VI. Hearsay Can Be Considered to Establish the Reliability of Other Hearsay.

24

Plaintiffs are wrong when asserting that the court in Hall did not look to hearsay evidence to

2S corroborate Hawkins' out~of-court hearsay statements. Plaintiffs suggest that, for example,

26 because five witnesses did testify at the hearing about what Hawkins told them, confrontation of

27 Hawkins who was not present, was satisfied. Not so. Each ofthe witnesses testifying at the

28 hearing were offering statements made by Hawkins to them -- hearsay. No matter that the

Defs.' Response to Reply to Opp. to Motion to Enforce Par. 24 of Perm. Inj.
9

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witness testifying about what Hawkins told them was present -- Hawkins, the hearsay declarant,

2 was not. There was no confrontation ofHawkins. Instead, as Defendants rightly pointed out, the

3 court considered both hearsay and non-hearsay to corroborate Hawkins' out-of-court statements,

4 ultimately determining they were reliable.

5

Plaintiffs take issue with the fact that Defendants did not discuss In re Miller, 145

6 Ca1.App.4th 1228 (2006) in their opposition. Apart from the fact that Miller is a non-binding

7 state appellate court case, all that it really demonstrates is that there should not be any hard and

8 fast rule like Plaintiffs propose since considerations ofreliability of a particular piece of evidence

9 are wholly dependent on the circumstances ofeach particular case. This only affirms the

10 flexibility that should be present in revocation proceedings to which Morrissey speaks.

11

CONCLUSION

12

In sum, Defendants' position is legally supported and does not result in a parolee's right to

13 confrontation being "short-circuited." Plaintiffs repeatedly trumpet the right to confrontation but

14 wholly ignore that Morrissey expressly provides that the right is not absolute -- that is, a parolee

15 possesses the right unless the hearing officer finds good cause for not allowing confrontation.

16 Morrissey, at 489. Where evidence falls within a long-standing hearsay exception, it is

17 admissible without a full balancing because it bears the indicia of reliability that establishes good

18 cause for not allowing confrontation.

19 Dated: December 10, 2007

Respectfully submitted,

20

EDMUND G. BROWN JR.

Attorney General of the State of California

21

JAMES M. HUMES

22

ChiefAssistant Attorney General

FRANCEST.GRUNDER

23

Senior Assistant Attorney General

24

ROCHELLE C. EAST Supervising Deputy Attorney General

25
26

tf ~/ .,:--;:'1~I;i4.-o.-'

27

Supervising Deputy Attorney General

Attorneys for Defendants

28

Defs.' Response to Reply to Opp_ to Motion to Enforce Par. 24 of Perm. Inj.
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EXHIBIT C

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Page 1 of2

Ginny Morrison

From:

Jessica Devencenzi [Jessica.Devencenzi@doj.ca.gov]

Senl:
To:

Tuesday, January 22',20084:53 PM Ginny Morrison; 'Chase Riveland'

Cc:

Katherine' 'Nelson; Vickie Whitney; 'Emest Galvan'; 'Loren G. Stewart'

Subject:

Ra: Comito document still needed

Attachments; AD 2.Pdf; RD1.pdf; RD3.pdf

Good Afternoon,
In response to the Deputy Special Master'sinquity, attached please find the portions of the DC manual that
pertain to Comito to which Ms. Cassady referred at page 69 of the first hearing transcript. The attachments
include Resource Document #1, Resource Document #2 and Resource Document #3. Moreover, a copy of the
Comito case was distributed in 200.4 with these materials but since alJ have a copy of Comito, we are not
reattaching it at this time. Please let us know if you need anything further.
Thank you/

Jessica R. Devencenzi Deputy Attorney General Correctional Law Section
Office of the Attorney General (916)322-6104
»> Ginny Morrison <gmorrison@collaboration-spedalists.com> 1/18/200810:43 AM »>
De-at: All,
In the notice concerning the second hearing, we requested the document described below. We will still need that document and intend to make it part of !:he record underlying the upcoming Report }\nd
Recommendation s.
• The policies and pmcedures concerning !:he application of CQlflita and related case law that
were distributed to Defendants' staff in July 2004 (as mentioned on page 69 of the flIst hearing's transcript)
Please provide a copy by email at your earliest 0PPOltunity.
Thank you,
Ginny Morrison Deputy Special Master, I· 'aJdiI)ia 415-456-5038/415-449-6377 (FAX)

112912008

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RESOURCE DOCUMENT # 1
ASSES.SING EVIDENCE IN REVOCATION PROCEEDINGS
INTRODUCTION
Determining the truth of the charge and appropriate disposition at a revocation hearing is often a simple process. When the evidence is clear a conclusion is not difficult to reach, but when the evidence is not so clear the process can require careful analysis. Most, if not all, Deputy Commissioners have had difficulty arriving at a decision and/or doubts as to the appropriateness of their findings. It's inherent in the process.
Many times there is no amount of evidence that will eliminate all doubt in all cases. However, any reasonable person with the ability to gather facts, analyze the relevance of those facts. and arrive at a conclusion can be successful as a hearing officer. Because revocation proceedings are administrative in nature the rules and procedures differ from those that are used in courts of law. Fairness is the most important factor. The hearing officer is given wide discretion and is allowed to receive many forms of relevant, material. trustworthy and reliable evidence. including hearsay.
The process of assessing evidence presented during the revocation proceedings will be approached differently by each Deputy Commissioner (DC) depending on the individual. Those who have practiced law will put their experience to good use. as will those who have spent long careers working with offenders. Although there are some rules that must be followed the primary goal is to hear, read or see all the available and relevant evidence and arrive at a conclusion based on that evidence.
This Resource Document will not provide a comprehensive knowledge of the rules or evidence nor is it suggested that such knowledge is required to fulfill the responsibilities of the Deputy Commissioner. This document Is intended to provide a general understanding of what should and should not be considered and the reasons why.
What is Evidence?
The California Evidence Code at §140 defines evidence as:
"Evidence" means testimony. writings, material objects, or other things presented to the senses that are offered to prove the existence or nonexistence of a fact.
Evidence is defined in Black's Law Dictionary as:

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RESOURCE DOCUMENT # 1

2

Any species of proof, or probative matter, legally presented at the trial of an issue, by the act of the parties and through the medium of witnesses, records, documents, concrete objects, etc., for the purpose of inducing belief in the minds of the court or jury as to their contention.

The rules of evidence regulate what evidence is admissible

in the different judicial and administrative settings and

when they are admissible.

.

Evidence in Administratlye Hearings

The technical rules of evidence contained in the California Evidence Code do not apply to Administrative Hearings. The California Code of Regulations states:

CCR Title 1 §1147 (c) states:

(c) The hearing need not be conducted according to technical rules relating to evidence and witnesses. Any relevant evidence shall be admitted if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs regardless of the existence of any common law or statutory. rule which might make improper the admission of such evidence over the objection civil actions. Hearsay evidence may be used for the purpose of supplementing or explaining other evidence, but shall not be sufficient in an of itself to support
finding unless it would be admissible over objection in civil actions. The rules of privileges shall be effective to the extent that they are otherwise required by statute to be recognized at the hearing. Irrelevant and unduly repetitious evidence shall be excluded.

cCR Title 15 § 2665 states:

General. All evidence relevant to the charges or disposition is admissible in parole postponement, rescission and revocation hearings.

The court in In re Carroll (1978) 80 Cal App: 3d 30 held that all evidence is admissible in Administrative Hearings. The Court's comment was that "The Adult Authority, in considering a parole revocation, is generally permitted to consider all relevant evidence ... [including hearsay]." In the case the officers testified as to

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RESOURCE DOCUMENT # 1

3

the absent victIm's statements about the burglary and assault. The officers had been on the scene, had seen the condition of the victim, including bruises and chain marks, and had seen the entry window with a screen removed. In other words, there was significant corroborating evidence (In re Douglass (1988) 206 Cal.App.3d 866). Evidence suppressed in the criminal proceeding is admissible unless the method shocks the conscience.
Physical evidence is ordinarily not brought to the hearing unless there is no other means to present the evidence. CCR 15 §2667.
The standard of proof is preponderance of evidence. Even if a criminal case is dismissed or there is an acquittal, the hearing officer may still find good cause. See In re Dunham (1976) 16 Cal.3d 63l 66.
Assessment and Evaluating Evidence in the Revocatio,n Process
In the revocation process the question regarding evidence is not usually whether it is admissible, but rather what weight it will be given. As stated above, all evidence that is relevant is admissible.
Relevant evidence is defined in Black's Law Dictionarv as evidence: "Applying to the matter in question; affording something to the purpose" In determining whether the evidence is relevant the DC must determine If directly or by inference the evidence will help decide if the parolee committed the violation.
Once the DC has determined that the evidence is relevant the next step is to decide what weight to give to the evidence, the weighing process discussed more thoroughly under "Hearsay" applies to all admitted evidence. Briefly the DC must determine if how trustworthy and reliable the evidence is and how important is it in determining the . elements of the violation. The more trustworthy and reliable the evidence the more weight it should be given toward determining good cause on the charge or one of the elements of the charge.

New information
On occasion new information on a charge(s) will be discovered by P&CSD after the parolee has been served, but prior to the· hearing. Every attempt will be made to get the new information to the attorney prior to the hearing. If this is not possible and P&CSD attempts to present the information at the heari~g the DC shall, before reviewing

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RESOURCE DOCUMENT # 1

4

the information, ask the representative of P&CSD to explain why the information was not included in the revocation packet. The DC will then give counsel and the parolee an opportunity to review the information privately. If counsel requests a postponement with a time waiver to prepare a defense of the new information the DC will review the new information to determine if it significant enough to warrant a postponement. If so a postponement with a time waiver will be granted. If not the DC will deny the request for postponement, but will not use the new information in determining good cause.
Written Br;efs
Written briefs submitted by the parolee's attorney should be submitted in timely manner. Allowing for due consideration and a response by all appearing parties and the hearing officer. Matters not submitted in a timely manner will either, not be received into evidence or will result in a continuance of the proceedings to give an opportunity to review and respond. The appropriate determined of how the evidence will be handled will be made by the Deputy Commissioner.
Confidential information
No decision shall be based on information that is not available to the prisoner [parolee] unless the information has been deSignated confidential the rules of the department and is necessary to the
decision (CCR Title 15, Div. 2 § 2235). The determination of whether
the information Is confidential is within the discretion of CDC under
CCR Title 15, Div. 3 § 3321. When using information that has been
designated confidential the DC shall inform parolee and/or counsel that the confidential information is being used. If the information is relied on in reaching a decision it shall be documented and the parolee shall be notified of the reports on which the hearing officer relied. (See Resource Document 3, Witness Selection and Approval).
Hearsay Evidence
Hearsay evidence is by far the most common type of evidence a DC
will come across and it is the most difficult to understand. Relevant hearsay evidence is admissible in administrative hearings. Again the question will be how much weight to give the evidence. The following will attempt to clarify as much as possible the use of hearsay evidence in the parole revocation hearing process by using and analyzing the most recent case, Comito. .
The California Evidence Code at §801 (c) defines hearsay as:

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RESOURCE DOCUMENT # 1

5

(c) Hearsay. "Hearsay" is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.
Hearsay is defined in Black's Law Dictionary as:
Evidence not proceeding from the personal knowledge of the witness, but from the mere repetition of what he has heard others say. That which does not derive its value solely from the credit of the witness but rests mainly on the veracity and competency of other persons. The very nature of the evidence shows its weakness, and.it is admitted only in specified cases from necessity.
The issue with the use of hearsay evidence is the conflict between the use of the hearsay evidence and the parolee's Sixth Amendment right to confront adverse witnesses.
The rule is Simple, but the application can be somewhat complex. In court, in order for hearsay to be admissible, even though very probative, it must faU under one of the many exceptions to the hearsay rule. The reason that the hearsay evidence is inadmissible in court is that it is considered unreliable and untrustworthy. The reason that hearsay that falls under one of the exceptions is admissible in court is that the hearsay under the circumstances of the exceptions is considered reliable and trustworthy. In the revocation hearing all hearsay is admissible and the issue is what weight to give to the hearsay evidence. In determining the weight to give the evidence the hearing officer must decide if the evidence is trustworthy. The more trustworthy the evidence the more weight it should receive and the more likely to outweigh the right to confront adverse witnesses. Therefore unlike court where the hearsay evidence can not even be heard in the parole revocation hearings the evidence can be heard and the hearing officer is responsible to determine its reliability, trustworthiness and weight it is given.
Case law has over the decades has discussed the appropriate weight to give to hearsay testimony, all confirming that it is admissible in parole revocation proceedings. The most recent case that addressed the hearsay issue set forth the clearest. guidelines regarding weight given to hearsay testimony in parole revocation hearings.

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RESOURCE DOCUMENT # 1

6

u.s. v. Comito (9th Cir. 1999) 177 F. 3d 1166
Summary of the facts of the case: (although the statement of facts are lengthy, in order to understand the reasoning and balancing the court sets forth it is necessary to know the facts of the case). Italics have been added to points to be covered in discussion.
The Comito case involved a parolee that was under federal superVISion. There were three violations involved. Mr. Comito admitted to two of the violations. but denied the Fraud charge which carried significantly more return to custody time. The basis of the alleged fraud violation was the accusation made by Deirdre Connell, Comito's former girlfriend and roommate, to Comito's probation Officer, Officer Perdue, that Comito had used her bankcards, credit cards and checks without her permission. Connell was not present to testify at the initial revocation hearing. Her evidence was expected to be critical 10 the determination of that violation, the district court granted a continuance so that the govemment could suppoena her. However. Connell still was not present at the continued hearing. At the beginning of the hearing, counsel for the govemment stated his intent to offer the testimony of Officer Perdue regarding what Connell had said to him concerning Comito's use of her cards and checks.. Comito's lawyer strenuously objected to the use of this hearsay testimony to prove the violation and forcefully asserted. that its admission would violate his client's confrontation rights.
When the government was asked about the witness's absence they indicated that they were unsuccessful in subpoenaing her and that based on what she had told the parole agent she was fearful of physical harm by Comito's associates if she were to testify. Comito's
counsel stated that he had personally spoken to ,Connall a half an hour prior to the hearing, and she had told him that the only reason she had
made the allegations was because she and Comito had broken up.. She stated to him that she would not repeat the allegations at the hearing. She had indicated to counsel that her reluctance to testify
was due to fear of perjury charges or other repercussions should she
change her story. Comito's counsel stressed that, to the best of his knowledge. Connell was not afraid of his client that she had been viSiting him almost daily and making telephone calls to Comito at the Detention Center. The District Judge ruled that the hearsay in this
case was going to be considered that if this was the only violation it
may insist on Connell being present to testify.
Officer Perdue then testified as to what Connell had told him about the alleged fraud (hearsay). According to Officer Perdue, Connell contacted him in early January 1998, and accused Comito and an

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RESOURCE DOCUMENT#1

7

unknown associate of taking her credit cards from her wallet and using and then replacing them. She also claimed that checkbooks from two different bank accounts had been stolen, and checks had been forged and sent to her credit card companies to cover some of the unauthorized transactions. Officer Perdue did not testify as to any efforts to subpoena Connell or try to get her to come to the hearing. Nor did he provide any explanation for her absence, or restate under oath the statements attributed to him earlier in the proceeding by counsel for the Government.
In addition to Officer Perdue's testimony regarding Connell's allegations, the government offered four other pieces of evidence concerning the transactions: stipulated testimony of a Las Vegas Police Detective that Connell had reported unauthorized bank card transactions, that no charges had been filed, and that the case remained open; a memorandum written by Connell, apparently at Officer Perdue's request, listing the dates and amounts of the transactions in question; several of Comito's unemployment compensation documents and his December 1997 bank statement;
and, Off;cer Perdue's testimony regarding his discussion with a credit
card fraud investigator about the investigator's conversations with Connell and Comito. Only Officer Perdue's testimony regarding what Connell purportedly told him is at issue in this appeal. Comito then testified to the following: Throughout his relationship with Connell, each had used the other's credit cards, and Connell had given him her ATM PIN number so that he could have access to. her bank accounts. Toward the end of 1997 Connell noticed that one of her credit cards was missing, and he believed she had lost it in a move a few months earlier. In early January of 1998, he moved out of the house he shared with Connell because they were not getting along. Shortly thereafter, he became aware of Connell's concerns regarding unexpectedly large charges on her credit cards and some miSSing checks. While he did make some purchases with Connel/'s credit cards during December, he had her consent for these transactions; he took responsibility for these charges, but testified he was not responsible for the other charges or the missing checks. Other individuals, who had used Connell's cards in the past, may have had access to those cards. Following his arrest for the alleged supervised release violations. he and Connell had reconciled and she then told him that she Was sorry that she had made the accusations and would withdraw them. She .also told him that the unauthorized charges were Ustill on-going" and that as he was then in jail, she knew that he was not the guilty party.
In the closing argument Comito's counsel again objected to the hearsay as a violation of Comito's right to confront. The District Judge did not rule on the objections. but did find good cause on the charges.

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RESOURCE DOCUMENT # 1

Comito appealed the finding.

The Court indicates in its ruling that a hearing officer in order to use hearsay must determine the trustworthiness and reliability of the hearsay. In the Court's ruling it sets forth a balancing test which balances the parolee's right to confrontation against the use of the hearsay evidence. The weight to be given the right to corifrontation in a particular case depends on two primary factors: the importance of the hearsay to the uJtimate finding and the nature of the facts to be proven by the hearsay evidence." (Comito, 177 F.3d at 1171.)

In analyzing the Comito court decision the following need to be considered in determining that the parolee's right to confront is outweighed by the trustworthiness of the evidence:

1. Is there good cause shown for the alleged victim's absence even when there were statements regarding her failure to appear that were contrary to the government's statements for her absence?

The Comito Court indicates in it's ruling that the Gagnon v. Scarpelli
(1973) 411 U.S. 778 and Morrissey (1972) cases allow for testimony from absent witnesses if the government can show that there was a diligent attempt to have the witness present and reason for the absence is not the government's fault.

Comments: The government's counsel (not under oath) offered the information regarding the alleged victim's absence. When Officer Perdue took the witness stand he did not confirm, under oath, any conversation with the alleged victim regarding her absence, or any attempt to subpoena her. You had unsworn information from the government. You also had unsworn information from Comito's attorney, which directly contradicted the government's information. Both pieces of information were hearsay; both without corroboration could not be. given much weight or equal weight at best. Nonetheless the court carried on to the next issues in the case.

2.

Could good cause have been found on the charge without the

hearsay testimony?

The Comito Court stated in its decision "Here, the hearsay testimony was, indisputably, important to the finding of the violation. He (Comito) admitted to using the financial instruments. but testified that he had her authorization to do so. Thus, the contested element of the violation was whether Connell authorized Comito to use her cards and checks. The hearsay testimony consisted of the alleged victim's purported

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statements regarding that critical question: Officer Perdue testified as to what Connell told him regarding her consent or lack of consent to
a the use by Comito of her cards and checks. Thus, Comito had very
strong interest in demonstrating that the hearsay testimony did not reflect 'verified fact. '" The weight to be given the right to confrontation in a particular case depends on two primary factors: the importance of the hearsay evidence to the court's ultimate finding and the nature of the facts to be proven by the hearsay evidence Martin, 984 F.2d at 310-11. "Unsworn verbal allegations are, in general, the least reliable type of hearsay, and the particular utterances at issue here bore no particular indicia of reliability.

Comments: The Comito Court ruled that If the hearsay testimony will be the main (and here the only) factor in a good cause finding then the hearsay evidence must be deemed highly reliable in order to sustain a finding of good cause. The more weight attached, to the evidence means the more reliable and trustworthy the evidence must be to outweigh the parolee's right to confrontation. The unsworn, uncorroborated hearsay is the least reliable hearsay. The more corroboration the hearsay evidence has the more reliable and trustworthy it because and the more weight it can be given. Corroboration can be through other testimony (including the parolee's), documents or' physical evidence. Again, we have hearsay testimony without corroboration on both sides. Comito's testimony contradicts the testimony of Officer Perdue. In order for the Officer's hearsay testimony to carry more weight it would need to be shown more reliable with corroboration. The court did not believe that contrary hearsay information outweighs the parolee's right to confrontation, The court in its decision further indicates that the governments hearsay testimony is unreliable taken the circumstances-the statements were unsworn by the victim and made after a breakup in a relationship with the parolee.

3.

Does the significance of the consequences of a good cause

finding weigh in determining weight of hearsay testimony?

The district court revoked Comito's supervised release, finding four separate violations of the conditions of his release: the unauthorized use of his former girlfriend's bank cards, credit cards and checks (a "grade B violation") and three lesser violations ("grade Cs"). Comito admitted the grade C violations, but contested the grade B violation. Three admitted grade C violations support revocation of his supervised release, but Comito argues persuasively that because they constitute a lower grade of violation than the alleged fraud r the finding of the fraud violation led to imposition of a far longer sentence.

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10

Comments: The court in Comito indicates the more severe the punishment as a result of the hearsay evidence is also a factor in how trustworthy and reliable the evidence need be and how much weight it can be given. The implication in the Comito case is that if the use of the hearsay evidence will not make a difference or very little difference in the outcome of the proceedings then less reliable and trustworthy hearsay can be given more weight.
4. Will corroboration make hearsay evidence trustworthy and reliable?
The Court stated, "In addition to Officer Perdue's testimony regarding Connell's allegations, the government offered four other pieces of evidence concerning the transactions, which to varying degrees provided corroboration for certain aspects of the charge, but which collectively fell far short of the quantum of proof required to support a finding of the charged violation. This evidence consisted of: stipulated testimony of a Las Vegas Police Detective that Connell had reported unauthorized bank card transactions, that no charges had been filed, and that the case remained open; 3 a memorandum written by Connell, apparently at Officer Perdue'S request, listing the dates and amounts of the transactions in question; 4 several of Comito's unemployment compensation documents and his December 1997 bank statement; and, Officer Perdue's testimony regarding his discussion with a credit card fraud investigator about the investigator's conversations with Connell and Comito."
Comments: Again, the court discusses Given the substantial nature of Comito's interest in confrontation and the absence of good cause for the Government's failure to produce the adverse witness, the supporting or corroborative evidence noted by the Government cannot suffice to deprive Comito of his constitutional right to confrontation. The court pOints out that in order for corroborating evidence to give the hearsay testimony more reliability you need to look at what it is corroborating. The first piece of evidence "stipulated testimony of a Las Vegas Police Detective that Connell had reported unauthorized bank card transactions, that no charges had been filed,.and that the case remajned open does not corroborate any part of Officer Perdue's testimony that was at issue. It does not corroborate that Comito was the one that used the cards, but simply that they were used without her permission, that is not disputed. The second piece of evidence used for corroboration a memorandum written by Connell, apparently at Officer Perdue's request, listing the dates and amounts of the transactions in question. Again, this does not corroborate that Comito was responsible or would it appear the memorandum written by Connell indicates Comito was responsible just that unauthorized transactions took place on certain dates. The third piece of

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11

corroboration, several of Comito's unemployment compensation documents and his December 1997 bank statement. This may corroborate that Comito had funds in his accounts that he can not account for through earnings, but Comito testified that during the month of December he still had authorized permission to use Connell's bankcards. This does not contribute to the reliability of Officer Perdue's hearsay testimony that Connell stated Comito did not have permission during December. There is no information offered that Comito had unaccounted for money in his accounts after he moved out in early January. The last bit of evidence used to corroborate Officer Perdue's testimony of what Connell told him is Officer Perdue's testimony regarding his discussion with a credit card fraud investigator about the investigator's conversations with Connell and Comito. This testimony provides us with two problems: why wasn't that investigator called as a witness and multiple hearsay. The first problem is covered under the same Issues as why Connell wasn't present, but the second issue of multiple hearsay goes to the reliability of the hearsay testimony. If hearsay is unreliable then it stands to reason that multiple hearsay is less reliable and would need more corroboration to make it trustworthy. Multiple hearsay occurs when the person testifying (Officer Perdue) is testifying to statements made to him by another (investigating officer) thai someone else (Connell) made to that person (investigating officer). It would appear that the statements to the investigator were not contained in a report, but rather verbal statements relayed from the investigator to Officer Perdue. Multiple hearsay must be weighed carefully against the parolee's right to confront. You now have the parolee being denied not only the accuser, but also the investigator that took her statement. Corroboration is extremely important in determining the reliability of hearsay testimony. The more corroboration the more trustworthy the evidence becomes. !f you have no victim, but five witnesses that talked to the victim and the victim told each of the five the same version of events the hears.ay testimony will increase in reliability. If you have documents to support the testimony or observations by witnesses that support the testimony these pieces of evidence will increase the reliability and trustworthiness of the hearsay testimony.
In summary, the Court ruled that the hearing officer (DC), when detennining the admissibility of hearsay must weigh the parolee's right to confrontation against the Government's good cause for denying it. The two major factors are the significance of the hearsay to the finding, arid how, subject to question, is the accuracy and reliability of the hearsay. The greater the importance of the evidence or the less reliable, the greater is the parolee's interest in confrontation. Des need to understand that if hearsay is the only evidence they have and
it is very important to the case. then it probably is not admissible.

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12

Exceptions to the Hearsay Rule
All hearsay is admissible in a parole violation hearing therefore knowing the exceptions to the rule that are recognized by the court and their applications are not necessary, but the exceptions are what the courts have decided make the evidence more reliable, credible and trustworthy. Some of the exceptions that DCs may encounter are listed below:
Physical Abuse (Cal. Evi. Code § 1370)
(a) Evidence of a statement by a declarant is not made inadmissible by the hearsay rule if all of the following conditions are met:
(1) The statement purports to narrate, describe, or explain the infliction or threat of physical injury upon the declarant.
(2) The declarant is unavailable as a witness pursuant to § 240.
(3) The statement was made at or near the time of the infliction or threat of physical injury. Evidence of statements made more than five years before the filing of the current action or proceeding shail be inadmissible under this section.
(4) The statement was made under circumstances that would
indicate its trustworthiness.
(5) The statement was made in writing, was electronically recorded, or made to a physiCian, nurse, paramedic, or to a law enforcement official.
(b) For purposes of paragraph (4) of subdivision (a), circumstances
relevant to the issue of trustworthiness include, but.are not limited to, the following:
(1) Whether the statement was made in contemplation of pending or antiCipated litigation in which the declarant was interested.
(2) Whether the declarant has a bias or motive for fabricating the statement, and the extent of any bias or motive.
(3) Whether the statement is corroborated by evidence other than statements that are admissible only pursuant to this section.

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(c) A statement is admissible pursuant to this section only if the

proponent of the statement makes known to the adverse party the

intention to offer the statement and the particulars of the statement

sufficiently in advance of the proceedings in order to provide the

adverse party with a fair opportunity to prepare to meet the

statement.

.

Admissions and Confessions (Cal. Evi. Code §§1220 -1228)

An admission is a self-incriminating statement connecting the parolee with the violation, but not amounting to guilt. A confession is an admission of guilt.

Business and Official Records (CEC § 1271)

Evidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered to prove the act, condition, or event if: (a) The writing was made in the regular course of a business; (b) The writing was made at or near the time of the act, condition, or event; (c) The custodian or other qualified witness testifies to its identity and the mode of its preparation; and (d) The sources of information and method and time of preparation were such as to indicate its trustworthiness.

It is important to note that although police reports fit the criteria of a business or official record the court in Downie v. Klincar (1991) 759 F.Supp. 428 citing United States v. Bell, 785 F.2d. 640 (8th Icur, 1986) states "eyewitness police reports cannot be considered conventional substitutes for live testimony, and their reliability is therefore neither automatic nor presumed. Police reports of any kind are 'inherently more subjective than laboratory reports of chemical tests'" "...they may
be demonstrably reliable evidence of the of the fact that an arrest was made, [but] they are Significantly less reliable evidence of whether the allegations of criminal conduct they contain are true." The reasoning of the court is "because of the adversarial nature of the confrontation between the police and the defendant in criminal cases and that the reports are 'frequently prepared for use of prosecutors, who use such reports in deciding whether to prosecute." "The presence of other indicia of reliability, such as corroboration by the parolee himself or by collateral sources, a highly detailed description in the report, or a conviction on the crimes alleged in the report may render the reports admissible. This determination must be made on a case-by-case
basis."

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14

Evidence of the absence of a bysiness record or enta. (CEC §
1272)
This is when a notation would normally be present in a business record and is mysteriously missing.
Prior Inconsistent statements (CEC §1235)
Statements by a witness that are inconsistent with the statements being made at the hearing.
Prior Consistent statements (CEC §1236)
Statements by a witness that are consistent wtth the statements being made at the hearing.
Spontaneous Statements (CEe §1240)
Made spontaneously while the declarant was under the stress of excitement caused by such perception.
Declarations against interest (CEC 1230)
Evidence of a statement by a declarant having sufficient knowledge of
the subject is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness, if the statement, when made, was so far contrary to the declarant's pecuniary or proprietary interest, or so far subjected him to the risk of civil or criminal liability, or so far tended to render: invalid a claim by him against another, or created such a risk of making him an object of hatred, ridicule, or social disgrace in the community, that a reasonable man in his position would not have made the statement unless he believed it to be true.
Dying declarations (CEC § 1242)
Evidence of a statement made by a dying person respecting the cause
and circumstances of his death is not made inadmissible by the
hearsay rule if the statement was made upon his personal knowledge and under a sense of immediately impending death.
Evidence of a judgment of conviction for certain purposes (CEC
§1300) (felonies)
Court conviction on same behavior. (In revocation hearings it is not exclusively felonies any court conviction for a felony or misdemeanor may be used).

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15

Declarant unavailable as witness (CEC § 1350)
If it be shown that the declarant of the hearsay statements is· legitimately absent from the hearing and the statements can be corroborated the statements are more reliable. For example the witness moved from the state or in hospital.
The California Evidence Code § 240 defines unavailability as follows:
a) Except as otherwise provided in subdivision (b), "unavailable as a witness" means that the declarant is any of the following:
(1) Exempted or precluded on the ground of privilege from testifying concerning the matter to which his or her statement is relevant.
(2) Disqualified from testifying to the matter.
(3) Dead or unable to attend or to testify at the hearing because of then existing physical or mental illness or infirmity.
(4) Absent from the hearing and the court is unable to compel his or her attendance by its process.
(5) Absent from the hearing and the proponent of his or her statement has exercised reasonable diligence but has been unable to procure his or her attendance by the court's process.
(b) A declarant is not unavailable as a witness if the exemption. preclUSion, disqualification, death, inability, or absence of the declarant was brought about by the procurement or wrongdoing of the proponent of his or her statement for the purpose of preventing the declarant from attending or testifying.
(c) Expert testimony which establishes that physical or mental trauma resulting from an alleged crime has caused harm to a witness of sufficient severity that the witness is physically unable to testify or is unable to testify without suffering substantial trauma may constitute a sufficient showing of unavailability pursuant to paragraph (3) of subdivision (a). As used in this section, the term "expert" means a physician and surgeon. including a psychiatrist, or any person described by subdivision (b). (c). or (e) of Section 1010.
It is important for the DC to be familiar with the concepts of the Comito case regarding the determination of the reliability and trustworthiness of hearsay evidence and the weighing of the evidence against and the

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16

parolee's right to confrontation and cross examination of witnesses. In all likelihood the majority of objections that the DC will encounter will be the use of hearsay evidence. Being familiar with the Comito court's ruling will assist in determining the proper ruling to these objections.

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PROCEDURAL DUE PROCESS RIGHTS IN THE REVOCATION HEARING
Parolees' are afforded procedural due process rights under Morri5sey~
Brewer. (1972) 408 U.S. 471 and Valdivia v. Schwarzenegger (E.D. 2002)
206 F,Supp.2d 1068. Some of these rights attach at all three stages of the revocation process and some at just revocation hearings. It is noted where they attach only at the revocation hearing. Parolees' may waive
any of these rights except the right to counsel if they are not competent to
represent themselves at any stage in the process. The State and
attorneys for the Valdivia class action (Valdivia v. Schwarzenegger, (E.D.
2002) 206 F.Supp.2d 1068. entered into a stipulated agreement. which resulted in the Valdivia Injunction. In order for the Deputy Commissioner (DC) to ensure th~t parolees' procedural due process rights have been met under Morrissey and the VRP it is important to understand those rights. The following is a list of the parolee's rights:
Notice of Charges
The prisoner or parolee shall receive written notice of the charges within 3 business days of the placement of the parole hold. The notice will include a short factual summary of the charged conduct and written notice of the parolee's rights regarding the revocation process and time frames. (Valdivia Injunction, Pen. Code, § 3063.5, 15 CCR § 2643(b».
Right to counsel
Ail parolees are entitled to attorney representation (VRP). Representation will be limited to those either admitted to the State Bar of California (and are active members) or who appear under
procedures authorized by the Slate Bar of California. Law students
may appear and represent inmates as "certified law students" in accordance with the provisions of the State Bar of California. Parolee's
may waive their right to counsel unless it is determined that they are not competent to represent themselves at any stage in the proceedings
(Valdivia Injunction 1f 11 (b)(i».
Probable Cause Hearing within 10 Business Days after the Parolee has been Served with the Notice of Charnes. A parolee has the right to have the probable cause hearing within 10 business days after the parolee has been served with the notice of

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2

charges and rights {at the 3'd business day after the placement of the
PC §3056 hold (Valdivia Injunction).
Revocation Hearing within 35 Days of Placement of Parole Hold
A parolee has the right to have the revocation hearing within 35 days
from the date that the Parole Department places a PC §3056 parole
hold (Valdivia lnjunction.~~ 11(b}(iv) and 23).

Disclosure of evidence
Prisoner shall receive all documentary evidence against them (Pen. Code, § 3063.5; 15 CCR § 2643(b»;
Right to be present
The right to be present at the hearing, unless incarcerated in another jurisdiction (15 CCR § 2247, In ra Shapiro {1975} 14 Caf.3d 711).
Note: The parolee can waive this right as a result of their conduct. If the parolee's behavior is disruptive to !he process or poses a risk to
the safety or security of the persons in the hearing or the facility the DC
may have the parolee removed from the proceedings. A removal and
the reasons for the removal must be documented. Removal occurs when the parolee's behavior is disruptive to the proceedings. The DC should warn the parolee about the behavior and instruct the parolee to
discontinue the behavior and warn that continuation of the behavior will
result in removal. If the parolee coritinues to be disruptive to the
proceedings the DC will instruct the security person to remove the parolee from the boardroom.

To present documentary evidence
The parolee shall have the right to present any relevant dOGuments to the hearing panel. The documents written by the parolee or counsel should be brief, pertinent. and clearly written. They may cover any
relevant matters such as mitigation circumstances, disputed facts or release planning. (15 CCR § 2249: Valdivia Injunction. W 21-22: Morrissey v. Brewer, 408 U.S. 471, 489 (1972).
:". ,
, Deleted: DRMT6·21·04

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3

To Present Witnesses (revocation hearing only)
The parolee is entitled to request the presence of evidentiary and/or
dispositional witnesses. If denied, the specific reasons for denial shalf
mr be documented and a copy of the document given to the parolee. (15
CCR § 2643(d), Valdivia Injunction 21-22; and Morrissey v. Brewer.
408 U.S. 471, 489 (1972)). The right to have witnesses only applies to the Revocation Hearing. Present at the Probable Cause Hearing is the parolee, a ttorney and DC.
a. Evidentiary witnesses - witnesses that wifl testify to some aspect
of the charges in the fact finding phase of the hearing; b. Dispositional witnesses that will testify to some aspect of the
parolees' adjustment on parole in the community.

To confront and crosswexamine adverse witnesses (revocation hearing only)
The parolee has the right at a Revocation Haaring to confront and
cross-examine adverse witnesses unless the hearing officer
specifically finds good cause to not allow confrr{ntation (Morrissey v. Brewer (1972) 408 U.S. 471;Valdivia Injunction ~ 24; Comito, 177 F.3d at 1171). The DC can deny the confrontation of an adverse witness if it is shown that the witness is unavailable for good cause, or
determined to be either fearful or confidential. See Resource Document .. Witnesses for explanatlon of fearful and confidential witnesses.

.I'ormatted

To receive a written decision
The parolee is entitled to receive a written decision which includes the evidence relied on in reaching the decision (15 CCR §2255; Valdivia Injunction, Exh. A p. 5: Morrissey v. Brewer, 408 U.S. 471, 489 (1972»

To receive notice of the hearing
The parolee is entitled to receive notice of the date of the hearing at least 4 days before the hearing (15 CCR § 2643(e)).

To have an Impartial hearing panel

•....~. ··f.. ·· .. " ~ .,
.. Deteted: OItAFT ~2T-n4........." .. " ,

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4

The parolee is entitled to an impartial panel. A prisoner is entitled to a
hearing by an impartial panel (Morrissey v. Brewer. 408 U.S. 471. 489
(1972)). A parolee or counsel may request the disqualification of a hearing panel member by making an objection to the hearing officer at the beginning of the hearing stating the reasons that the parolee believes the hearing officer cannot render a fair and impartial decision. The hearing panel member may also disqualify themselves. Possible reasons for disqualification are: a close personal relationship with prisoner or prisoner's family, hearing panel member was involved in a past incident with the prisoner which might prejudice the panel member against the prisoner or the hearing panel member is actually prejudice against or biased in favor of the prisoner and can not make an objective decision (15 CCR § 2250).

To receive. upon request. a tape of the hearing
The parolee is entitled upon request to receive a copy of the record of the revocation hearing. (15 CCR § 2254; Valdivia Injunction '1120)
To request a continuance or postponement
A parolee may request a continuance or postponement on any ground, including an insufficient time to prepare. A request for a continuance
or postponement win be granted for good cause (15 CCR §2253)
To request an optional waiver
The parolee may sign an optional waiver if court charges are pending. The court charges must be criminal in nature and must be for the same conduct that resulted in one or more of the violation charges. The p~rolee must be informed of the time constraints for a hearing once an optional waiver has been activated.
To review nonconfldential documents
The parolee or attorney has the right to review nonconfidential documents fn the file and enter a written response to any malerial in the file {(15 CCR § 2247, Valdivia Injunction ~1114-16).
a. A parolee is entitled to copies of all non-confidential documents regarding the violation charges (Morrissey v. Brewer, 408 U.S. 471, 489 (1972), In re Love, 11 Cal3d 179 (1974), and Penal Code Section 3063.5). Such reports, even if labeled "Confidential" or "Restricted" by the law enforcement agency supplying the report,

.• Deleted: DRAFT (,,21·04

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5

must be given to the parolee and/or attorney, except information, which may endanger the safety or security of a person or a prison. if disclosa<l, may be deleted from any report The PA initiating the violation report shall review all law enforcement reports and make appropriate deletions in the copies. If such information is deleted from reports, the PA will prepare a typewritten memorandum stating the reason for the confidential classification. A copy of the unaltered report will be retained in the unit file. This copy will be available to the DC at the hearing. upon request. The DC at the hearing will determine whether to retain the document's "confidential" designation.
Right to reasonable accommodation
It is part of the BPT's mission to ensure compliance with the Americans with Disabilities Act of 1990 and the Rehabilitation Act of 1973 as well as other federal and state laws relating to ADA and due process. Des shall be aware that the BPT is under the mandate of a Federal Court injunction (Armstrong v. Davis, 275 F.3d 849 (9th Cir. 2001 ).) and that specific policies and procedures have been developed to ensure compliance. As such DCs shall apply those policies as well as those outlined in the Armstrong v. Davis Board of Prison Terms Parole Proceedings Remedial Plan (ARP II) effective March 29, 2002. Accordingly. DCs shall apply relevant policy and procedure regarding notice, reasonable accommodation (including to the right to receive the effect communication throughout the entire revocation process), and grievances.
To waive hearing
A parolee may waive the revocation hearing by slgnmg an unconditional waiver. The unconditional waiver includes the waiver of a personal appearance. The Signing of the unconditional waiver is not an admission of guilt (CCR § 2641).
To waive counsel
A parolee has the right to waive counsel. When the parolee chooses to waiVe counsel the Deputy Commissioner will make the final determination as to whether the parolee is competent to effectively represent him or herself at a PCH or Revocation Hearing.

Expedited Probable Cause Hearing

. Deleted: DRAFT 6-214)4

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6

Under the VRP if counsel after the RTCA can make a "sufficient offer of prooF that there is a complete defense to all parole violation charges that are the basis of the parole hold the parolee is entitled to an aexpedited probable cause hearing" as soon as it can be put on calendar(Valdivia Injunction, ,. 11(b)(i) and Exh. A p. 4). The offer of proof must be reviewed by an available DC or ACDC to determine sufficiency. The offer of proof may be a declaration, document or any other form of evidence that is convincing.

Deleted; ORAFT 6-H-ll4

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RESOURCE DOCUMENT # 3
WITNESSES: CATEGORIES, SELECTION, APPROVAL ,AND TESTIMONY
Introduction
Under the Valdivia Injunction California parolee's have a right to call and confront adverse witnesses at a Parole Revocation Hearing. When a pending revocation will proceed to a full revocation hearing, the Deputy Commissioner at a probable cause hearing will review witnesses requested by the State and by the parolee to finalize the witness list. The approval of witnesses is within the sole discretion of the Deputy Commissioner. New regulation presently title 15 section 2668.
Categories
• Evidentiary witnesses (CCR Title 15 § 2668(b) (1}) are witnesses that can provide information that. is probative to the charge(s). Within the category of evidentiary witnesses are two sub~ categories: adverse and supportive. Adverse witnesses present evidence that is adverse to the parolee's position and often supportive of the P&CSD's position. Supportive witnesses support the parolee's position and are often adverse to the P&CSD's position. The Morrissey case referred to adverse witnesses and defined them as follows: a person who has given information that supports the parole violation charges against the parolee and upon which the paroling agency is relying to revoke parole. A supportive evidentiary witness on the other hand also has information that is probative to the charges, but supports the parolee's claims. Both sub-categories may be relevant to the ultimate finding of fact.
• Disposition witnesses (CCR Title 15 § 2668(b) (2}) are witnesses that speak to how the parolee has been adjusting to parole. Disposition witnesses may offer testimony or documentary evidence of the parolee's stable reSidence, participation in programs or steady employment as well as personal character traits and observed changes in the parolee since release.
• Fearful witnesses (CCR Title 15 § 2668 (3) (e)) EVidentiary witnesses who refuse to attend the hearing either because they would be subject to risk of harm if their identity were known or if identity is already know fear for the safety if they attend the hearing. These witnesses shall be interviewed by staff prior to the hearing and their information documented in writing or on tape. The reasons for their fear shall also be documented. The hearing panel shall determine whether there is good cause to excuse a witness' attendance and shall document the deCiSion, including the reasons. The determination of good cause to excuse a witnesses testimony

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2

must the tests set forth in the Comito case (see Assessing

Evidence Resource Document), which balances the parolee's right

to confrontation against the need for the evidence to the disposition

of the case and the trustworthiness of the information. On some

occaslons the witness does attend the hearing. In these cases the

DC will determine whether there is good cause to desig.nate the

witness as fearful. If the DC determines good cause exists, the DC

may allow the witness to give testimony outside the presence of the

parolee.

.

III In order to take the fearful witnesses testimony the parolee

may be removed from the hearing room while the fearful

witness testifies. The parolee's attorney will have the

opportunity to ask the witness questions on the parolee's

behalf. The reasons for declaring a witness fearful must be

documented

.

• Confidential witnesses are witnesses that have relevant information regarding the charge(s), but are unknown to the parolee and are fearful of retaliation from the parolee if they testify. Under Morrissey the court ruled that the parolee's right to confrontation and crossexamination is out-weighed when ''the hearing officer specifically finds good caUSe for not allowing confrontation." The Court states that due process requires confrontation and cross-examination except on a finding of good cause to not allow confrontation. The Court stated, U[h]owever, if the hearing officer determines that an informant would be subjected to risk of harm if his identity were disclosed,. he need not be subjected to confrontation and crossexamination." (Morrissey, 408 U.S. at 487.) The use of confidential witnesses is subject to the balancing test used in the U.S. v. Comito ((9th Cir. 1999) 177 F. 3d 1166) case regarding unavailability of witnesses. The DC must carefully weight the State's need for the information against the parolee's right to confront and crossexamine adverse witnesses.

• Parolee and parolee's attorney must be informed that confidential information will be used prior to the use of the information. Counsel may object to the use of the information. If the information were deSignated confidential by the Department the challenge of the designation would go through the Department.

• The parolee may be removed from the hearing room while the confidential witness testifies. The parolee's attorney will have the opportunity to ask the witness questions· on the parolee's behalf. The reasons for declaring a witness confidential must be documented.

Case 2:94-cv-00671-LKK-GGH Document 1398 Filed 02/25/08 Page 276 of 293

RESOURCE OOCUMENT # 3

3

• The possible risk to the witness can be established by a direct or implied threat, or other circumstances that would lead a reasonable person to believe that the witness could suffer harm as a result of testifyin~ .
Confidential testimony shall be recorded on a separate system (currently an audiotape) marked confidential.
Selection and Approval of Witnesses
The following is what should be considered when selecting and approving witnesses:
• There shall be no limit on the number of evidentiary witnesses.
• There is no specific number of allowable disposition witnesses, but cumulative testimony is not necessary
• In determining who to call as a witness the DC must review the proposed information that will the witness will provide and determine if the testimony is relevant and material to the charge(s)
• Testimony should not be cumulative or repetitive to other testimony
Note: great care must be given in denying a requested evidentiary witness on the basiS of cumulative testimony. The persons may have observed the same incident, but may have different perceptions ofthe incident (Title 15 § 2668 (b) (2)).
The DC will have a list of requested witnesses from P&CSD and from the parolee's attorney. After reviewing the documents the DC will determine which of P&CSD's requested witnesses will be called and which of the parolee's requested witnesses will be called. The DC may add to the list if both parties have omitted a witness that the DC considers necessary. The parolee's counsel will be notified of the approved witness list and will be responsible for notification of witnesses deSignated as the parolee's witnesses.
Taking witness testimony
The DC may have witnesses, both evidentiary and dispositional, test1fy in narrative form and/or by question and answer. The DC has the responsibillty to keep the witnesses focused on the issues that are

Case 2:94-cv-00671-LKK-GGH Document 1398 Filed 02/25/08 Page 277 of 293

RESOURCE DOCUMENT # 3

4

probative to the charges. The DC also has the responsibility to make sure the parolee or his/her attorney's questions stay focused on the issues that are pertinent to the charges. Disposition witness may need more guidance to stay focused on the purpose of their testimony and the DC may need to use a question and answer technique if the witness does not stay on point. The focus of the disposition witnesses testimony should on the parolee's adjustment following the most recent release from custody. but leniency must be shown when the witness is explaining positive changes in the parolee's present parole adjustment from previous parole period adjustments.

Case 2:94-cv-00671-LKK-GGH Document 1398 Filed 02/25/08 Page 278 of 293
EXHIBIT D

Case 2:94-cv-00671-LKK-GGH Document 1398 Filed 02/25/08 Page 279 of 293

1 BINGHAM, McCUTCHEN LLP
GEOFFREY THOMAS HOLTZ- 191370 2 KRISTEN A. PALUMBO 215857
Three Embarcadero Center
3 San Francisco, California 94111-4067 Telephone: {415) 393-2000
4
PRISON LAW OFFICE 5 DONALD SPECTER -. 83925
General Delivery 6 San Quentin, California 94964
Telephone: (4L5) 457-9144 7
ROSEN, BIEN & GALVAN, LLP
8 MICHAEL W. BIEN - 096891 HOLLYM.BALDWIN 191317
9 ERNEST GALVAN - 196065 315 Montgomery Street; 10th Floor
10 San FrancIsco, California 94104 Telephone (415) 433-6830
1 I Attorneys fo~ Plaintiffs
12

13

UNITED STATES DISTRICT COURT

14

EASTERN DISTRICT OF CALIFORNIA:

15

OFFICE OF THE SPECIAL MASTER

16
JERRY VALDIVIA) et at,
17 Plaintiffs,
18 vs.
19 ARNOLD SCHWARZENEGGER, et aI.,
20
Defendants.
21
22
23
24
25

Case No. Civ. S-94-0671 LKKfGGH
DECLARATION OF LOREN G. STEWART IN SUPPORT OF PLAINTIFFS' NOTICE OF MOTION AN MOTION TO ENFORCE PARAGRAPH 24 OF THE VALDIVIA PERMANENT INJUNCTION

Date: Time:
Location: Officer:

HEARING
November 1, 2007 10:00 am Rosen, Bien & Galvan, LLP Chase Riveland) Special Master

26

27

28

DECLARATION OF LOREN G. STEWART IN SUPPORT OF PLAINTIFFS' NOTICE OF MOTION AND MOTION TO ENFORCE PARAGRAPH 24 OFTHE VALDIVIA PERMANENT lNJUNCTION

Case 2:94-cv-00671-LKK-GGH Document 1398 Filed 02/25/08 Page 280 of 293

I, Loren G. Stewart, declare:

2

1. 1 am a member of the Bar of this Court and an associate of the firm Rosen,

3 Bien & Galvan LLP, one of the counsel of record for the plaintiff class of California parolees. I

4 have personal knowledge of the matters set forth herein and could competently testify thereto as

5 a witness if called upon to do so. ,

6

2. I have observed two training sessions for Deputy Commissioners ("DCs")

on parole confrontation rights, as described in more detail be]ow. Since 2004, other attorneys in

my office have attended similar training sessions. These sessions have provided confusing and

inconsistent messages regarding the standards and procedures to be followed under the

controlling Comito case.

3. In September 2006, the Special Master noted that:
Defendants developed policies and procedures regarding Comito and provided training for the Deputy Commissioners and parole field staff. Plaintiffs assert that training content was flawed, that ongoing oversight is insufficient, and that this results in inconsistent application of the Comito standard. . . . Defendants acknowledge the need for further training and guidance.... Interviews with CDCR parole agents and supervisors reveal that many uncertainties and misinformation regarding hearsay information and Comito requirements remain. They also indicated that Deputy Commissioners' application of Comito varies depending upon their background and length of tenure.... Parole agents and supervisors say they find the variation in how the standard is applied confusing and
frustrating.

First Report of the Special Master on the Status of Conditions of the Remedial Order, September

11,2006, at 33~34. Attached hereto as Ex.hibit 1 is a true and correct copy of the pertinent

21 excerpts of this report.

22

4. On November 28, 2006~ I observed defendants' training session for new

23 DCs at 1515 K Street, in Sacramento~ California. The Comito segment of the training was

24 entitled "Assessing Evidence." The roughly three-hour session, structured around a PowerPoint

25 presentation, was designed to teach the DCs the rules on confrontation under Comito. One more

26 experienced DC in the class remarked that, in the field, it is a common mistake for DCs to admit

27 evidence because it is central to the finding rather than exclude it because the parolee's

28 confrontation clause is heightened in that situation.
1
DECLARATION OF LOREN G. STEWART IN SUPPORT OF PLAINTIFFS' NOTICE OF MOTION AND MOTION TO ENFORCE PARAGRAPH 24 OF THE VALDIVIA PERMANENT INJUNCTION

Case 2:94-cv-00671-LKK-GGH Document 1398 Filed 02/25/08 Page 281 of 293

5. The November 28,2006, training examined the Comito case closely, but

2 provided few practical applications for the DCs. Trainers discussed hearsay exceptions in the

3 training without explaining precisely their relationship---if any-to the Comito ba1ancing test

4

6. On March 27, 2007, I observed defendants' "Hearsay Refresher" training

5 for DCs ill Region n, conducted in Oakland~ Califomia. Deputy Special Master Ginny Morrison

6 also attended the session, as did Michael Roldan for CalPAP. Although the training was

7 designed to provide clarification through case law examples, the training revealed that confusion

8 abounds on parolees' confrontation rights and Comito. Deputy Commissioners expressed

9 disagreement amongst themselves and with the trainers regarding splitting charges, handling of

10 "priority cases," and when the Board would vi01ate the timeframes in the injunction absent good

II cause for delay instead of granting a Comito objection. There was little agreement amongst

12 ACDCs and DCs regarding how to handle a parolee's confrontation rights. This session that

13 lasted under two hours was confusing and unorganized.

14

7. One of defendants' recent self-monitoring tOUT reports confirms that parole

t 5 agents continue to struggle with Comito. Defendants reported that parole agents "do not have a

16 clear understanding of Comito and what is expected as far as having witnesses present or not

17 present at a hearing." Defendants' Santa Rita County Jail Self-Monitoring Tour, Aug. 31> 2007

t 8 at 9. One parole administrator remarked "that parole agents in the field would benefit from

19 Comito training. . .. [M]any parole agents are unaware of the requirements set forth in Comito,"

20 and then do "not properly attempt to secure the presence of a witness" at revocation hearings. ld.

21 at 11. Attached hereto as Exhibit 2 are relevant excerpts from the AUgllst, 3 1 2007, Santa Rita

22 County Jail Self-Monitoring Tour Report.

23

8. Defendants' recent Second Compliance Report, dated September 26, 2007,

24 discusses at great length the statewide training that occurred in March and April of 2007 for Des.

25 See Second Compliance Report at 45-46. Attached hereto as Exhibit 3 are relevant excerpts

26 from Defendants' Second Compliance Report. As defendants acknowledge in the Second

27 Compliance Rep0l1, DCs were told that CDCR was "exploring the possibility" of dispensing

28
2
DECLARA TION OF LOREN G. STEW ART [N SUPPORT OF PLAINTIFFS' NOTICE OF MOTION AND MOTION TO ENFORCE PARAGRAPH 24 OF THE VALDIVIA PERMANENT lNJUNCTlON

Case 2:94-cv-00671-LKK-GGH Document 1398 Filed 02/25/08 Page 282 of 293

with the Comito balancing requirement in some cases~ further confusing DCs on the proper

2 . approach to confrontation issues. See id. at 46.

3

9. Only one hour and fifteen minutes of the March 27, 2007, training was

4 dedicated to Comito and confrontation issues. Attached hereto as Exhibit 4 is a copy of the
5 training agenda for the March 27-28,2007 training in Region n, sent to plaintiffs' counsel via

6 email by Katherine Nelson on March 21, 2007.

7

lO. Defendants' Second Compliance Report acknowledges that "DAPO has not

8 provided its field staff with any refresher training on Comito or the use of hearsay evidence in

9 revocation hearings during the reportable period [June 1,2006 through September 26,2007]."

10 See Defendants' Second Compliance Report, attached hereto as Exhibit 3 at 46. "Many parole

11 agents have indicated they do not have a clear understanding ofthe requirements necessary to

12 meet the m!IDdates of Comito when preparing a case for: hearing and subpoenaing witnesses.

13 Parole agents reported they would benefit fi·om additional training on this issue.'" [d. at 46-47.

14

15

I declare under penalty of perjury that the foregoing is true and correct. Executed

16 this 3rd day of October, 2007 in San Francisco. California.
n

t8

By: /s/ Loren G. Stewart

Loren G. Stewart

19

20

21

22

23

24

25

26

27

28

DECLARATION or' LOREN G. STEWART IN SUPPORT OF PLAINTIFFS' NOTICE OF MOTION AND MOTION TO
ENFORCE PARAGRAPH 24 Of THE VALDrVIA PERMANENT INJUNCTION

Case 2:94-cv-00671-LKK-GGH Document 1398 Filed 02/25/08 Page 283 of 293
EXHIBIT 'E

Case 2:94-cv-00671-LKK-GGH Document 1398 Filed 02/25/08 Page 284 of 293 Page lof2

Ginny Morrison

From: Vickie Whitney [Vickie.whitneyOdoj.ca.gov1

Sent: Monday, January 07, 2008 3:03 PM

To:

dylan.sullivan@cdcr.ca.gov; katherine.nelson@cdcr.ca.gov; Ginny MorrIson; Jessica Devencenzi

Cc:

'Ernest Galvan'; 'Loren G. Stewart': 'Chase Riveland'

Subject: Re: Comito document request

In response to the request of Deputy Special Master Ginny Morrison, made under paragraph II E of the Joint
Statement Regarding Scheduling and Procedures for Briefing of Comito Dispute to the Office of the Spedal
Master, attached please find the portion of the agenda for the current Deputy Commissioner training which
concems Comito, confrontation rights, and/or hearsay. This portion was induded in the full agenda served on Plaintiffs on December 7,2007. Please note that Comito training occurred on December 21st from 8:30 to noon
(agenda says 12:00 am, should be pm). Loren Stewart was present for PlaIntiffs and Jessica Devencenzi was present for Defendants. Please also be advised that as part of the training, by agreement between the parties . when presented with an impromptu request at the training (obviously not reflected by the agenda), both Mr. Stewart and Ms. Devencenzi provided non-biased, factual examples from the various cases to assist in the
training. We are informed that the partidpants found the presentations to be extremely benefiCial.
In regards to the indication that this document will be considered part of the record underlying the Report and
Recommendations to the Court, Defendants must respectfully object for the record on the basis of relevancy.
As Defendants have noted in objections in the briefing and at the hearing, Defendants believe that matters concerning training are not relevant to a determination of the extent of obligation imposed under the Permanent Injunction'S provisions concerning United States v. Comito - a matter which is based wholly upon the cases that define the legal obligation. While Defendants are providing the document requested, it is being provided subject to Defendants' objection.
Please let me know if there are any further requests of the Mastership.

Regards, Vickie
»> Ginny Morrison <gmorrison@collaboration-spedalists.com> 1/4/2008 8:08 AM »> Pursuant to the Joint Statement Regarding Scheduling and Procedures for Briefing of UJmito Dispute to
the Office of the Special Mastel' paragraph n.E, which provides, in relevant part, that "the Special Master
reserves the right to make additional inquiries ...," we request that Defendants provide:
• a copy of the agenda for the current Deputy Commissioner academy for the day(s) on which
training is offert~d concerning Comito, confrontation rights, and/ or hearsay
Please provide this to tht;: Office of the Special Master, with a copy to Plaintiffs' counsel, by electronic mail
by dose of business on .J anuary 9, 2008. This document will be considered a part of the record underlying
the Report and Recommendations concerning trus matter.

Ginny Morrison
Deputy SpeciaJ Master, Valdivia
415-456-5038/415-449-6377 (FAX)

Case 2:94-cv-00671-LKK-GGH Document 1398 Filed 02/25/08 Page 285 of 293

FINAL

BOARD OF PAROLE HEARINGS
DEPUTY COMMISSIONERS TRAINING

12/20/07

December 10-21, 2007

January 7-11,2008

*Instructors and Times subject to Change*

FRIDAY, December 21! 2007 - ~ Executive Board Room
8:30 AM Hearsay I COMITO Overview
Pat Cassady, Assoc. Chief Deputy Commissioner
12:00 AM Conclusion

A7775 3.50

1/29/200S

1:13:26PM *AOENDA SUBJECfTO CHANGE*

Case 2:94-cv-00671-LKK-GGH Document 1398 Filed 02/25/08 Page 286 of 293
EXHIBIT F

Case 2:94-cv-00671-LKK-GGH Document 1398 Filed 02/25/08 Page 287 of 293

BINGHAM, McCUTCHEN ,LLP
GEOFFREY THOMAS HOLTZ - 191370 2 KRIStEN A. PALUMBO 215857
Three Embarcadero Center
3 San Francisco, California 94111-4067 Telephone: (415) 393-2000
4 PRISON LAW OFFICE
5 DONALD SPECTER - 83925 General Delivery
6 San Quentin, California 94964 Telephone: (415) 457-9144
7 ROSEN, B1EN ~ GALVAN, LLP
8 MICHAEL W. BIEN - 09689] HOLLY M. BALDWIN - 191317
9 ERNEST GALVAN' - 196065 315 Mont~omery Street? 10tb Floor
10 San FrancIsco, Califomla 94104 Telephone (415) 433-6830
11
Attorneys for Plaintiffs
12

13

UNITED STATES DISTRICT COURT

14

EASTERN DISTRICT OF CALIFORNIA:

15

OFFICE OF THE SPECIAL MASTER

16 JERRY VALDIVlA, et aI.,
17 . Plaintiffs,
18
VS. '
19
ARNOLD SCHWARZENEGGER.., et al., 20
Defendants, 21

Case No. Civ, S"94-0671 LKKlGGH
REPLY DECLARATION OF LOREN G• STEWART IN SUPPORT OF PLAINTIFFS' MOTION TO ENFORCE
PARAGRAPH 24 OF THE VALDIVIA
PERMANENT INJUNCTION
HEARING

22

Date:

December 14,2007

Time:

10:00 am

23

Location: Rosen, Bien & Galvan, LLP

Officer: Chase Riveland, Special

24

Master

2S

26

27

28

REPLY DECLARATION OF LOREN G. STEWART IN SUPPORT OF PLAINTIFFS' MOTION TO ENFORCE PARAGRAPH 24 OF THE VALDIVIA PERMANENT lNJUNCTION

I Case 2:94-cv-00671-LKK-GGH Document 1398 Filed 02/25/08 Page 288 of 293

1

I, Loren G. Stewart, declare:

2

1. I am a member ofthe Bar ofthis Court and an associate of the firm Rosen,

3 Bien & 'Galvan LLP, one of the counsel of record for the plaintiff class of California parolees. I

4 have persol1al knowledge of the matters set forth herein and could competently testify thereto as

5 a witness if called upon to do so.

6

2. On December 15, 2006, I sent a letter via electronic mail to Defendants

7 regarding their Com.ito policies. Attached hereto as Exhibit 1 is a true and correct copy of

8 Plaintiffs' December 15, 2006 letter to Defendants.

9

3. On June 8, 2007, defendants sent a letter regarding Comito policies to

10 Plaintiffs' counsel via email responding to my letter ofDecember 15, 2006, Attached hereto as

11 Exhibit 2 is a true and correct copy of Defendants' letter of June 8, 2007.

12

4. Attached hereto as Exhibit 3 is a true and correct copy of the PowerPoirit

13 presentation I received from ACDe Patricia Cassady at the Deputy Commissioner tl'aining Otl 14 November 28, 2006, in Sacramento~ California.

15

16

my 17
18 this

I decJare under penalty of perjury that the foregoing is true and correct. Executed ofNovember, 2007 in San Francisco, California,

19

20

By: /s/ Loren G. Stewart

Loren G. Stewart

21

22

23

24

25

26

27

28
1
REPLY DECLARATION OF LOREN G. STEWART IN SUPPORT OF PLAINTIFFS' MOTION TO ENFORCE PARAGRAPH 24 OF THE VALDIVIA PERMANENT INJUNCTION

Case 2:94-cv-00671-LKK-GGH Document 1398 Filed 02/25/08 Page 289 of 293
EXHIBIT 2

Case 2:94-cv-00671-LKK-GGH Document 1398 Filed 02/25/08 Page 290 of 293

Loren G. Stewart

From:

Ecklund, Carl [Carl.Ecklund@cdcr.ca.gov]

Sent:

Friday, June 08. 200710:21 AM

To:

loren G. Stewart

Subject: RE: Comito & Hearsay Exceptions Letter, 720·1

Attachments: No Hall Effect on Hearsay Training.doc

Loren,

Here is the answer to your letter on hearsay"
Carl D. Ecklund Staff Counsel Court Compliance Team

~----'""-.-------------------
From: Loren G. Stewart [mallto:LStewart@rbg-law.com]
$ent: Thursday, June 07, 2007 4:25 PM To: Ecklund, Carl subject: RE: Comito & Hearsay E~ceptions Letter, 12.0-1

---_._----------

Hi Carl,

Thank you for the update. I did not receive your 6/1 telephone message, but don't sweat it. I look forward to the response, the sooner the better.

Thanks,

LorenG. Stewart ROSEN, BIEN & GALVAN, LLP 315 Montgomery Street, Tenth Floor San Francisco, CA 94104 (415) 433·6830 (telephone) (415) 433-7104 (fax) lstewart@rbg-law .~9.m

We have moved to our ntrn' office. Please note our new address, 315 Montgomery Street, Tenth Floor.

CONFIDENTIALITY NOTICE: The infolmation contained in this e-mail message may be privileged, confidential and protected

from disclosure. Ifyou are not the intended recipient, any dissemination, distribution or copying is strictly pro11ibited. If ),ou think that

you have received this e-mail messageinerror.pleasee-Illailthesenderatrbg@rbg-Iaw.com.

'

IRS CIRCULAR 230 NOTICE: As required by United States Treasury Regulations, you should be aware that this communication is
-------------_._------------ not intended by the sender to be used, and it cannot be used, for the purpose ofavoiding pellalties under United States federal tax laws.
..
From: Ecklundl Carl [mallto:Carl.Eckrund@cdcr.ca.gov] Sent: Thursday, June 07, 2007 9:51 AM To: Loren G. Stewart SUbject: RE: Comito & Hearsay Exceptions Letter, 720-1

Loren,

11/27/2007

Case 2:94-cv-00671-LKK-GGH Document 1398 Filed 02/25/08 Page 291 of 293
I attempted to leave a phone message for you at (415) 433-6630 on 06/01/07 at COB. We are still debating the effect of
HIil...!t if any, on training for the Des. I apologize for the delay as I have been the lead person on this and have been
looking at the Stipulated Permanent Injunction, the Policies and Procedures, and talking with drafters of the Stipulated Pennanent Injunction along with BPH counsel to get a comprehensive understanding on the use of hearsay in revocation hearings. This search has taken me longer than I thought It would. I expect a decision no later than 06/15/07. If you have questions, please call me at (916) 324-1986. Thanks.
Cart D. Ecklund
Staff Counsel Court Compliance Team
From: Loren G. Stewart [maillo;LStewart@rbg-law.com] Sent: Thursday! June 07, 2007 8:43 AM To: MahoneYI Steven Cc: Katherine Nelson; Boyd, Russa; Ecklund,·carl; Nelson, Katherine Subject: Comito & Hearsay Exceptions Letter, 720-1
HI Steve & Carl,
Please advise of the status of your response to my letter on Comito analysis and hearsay exceptions. My letter (5/15) requested a written response by 5129/07. You indicated on 5129 that a response was likely by 6/1. Please advise.
Regards,
Loren G. Stewart ROSEN, BIEN & GALVAN, LLP 315 Montgomery Street, Tenth Floor San Francisco. CA 94] 04 (415) 433-6830 (telephone) (415) 433-7104 (fax) lstewart@rbg-1aw.com
We have moved to our new QlJ'ree. Please note our new address, 315 Montgomery Street, Tonth Floor.
CONFIDENTIALITY NOTICE: The information contained in this e-mail message may be privileged, confidential and protected from disclosure. If you are not the intended recipient, any dissemination, distribution or copying is strictly prohibited. If you think that you have received this e-mail message in error, please e-mail thesenderatrbg@rbg-law.com.
IRS CIRCULAR 230 NOTICE: As required by United states treasury Regulations, you should be aware that this communication is
----_-....¥-_. . -,,---. . . .- -.-----"" not intended by the sender to be used, and it C81IDOt be u.sed, for the purpose of avoiding penalties under United States federal tax laws. -~
from: Mahoneyl Steven [mailto:Steven.Mahoney@cdcr.ca.gov] Sent: Tuesday, May 291 20079:58 AM To: Loren G. Stewart Cc: Katherine Nelsoni Boyd, Russai Ecklund, Carl Subject:
Hi Loren, I can't remember if I emailed you about this last Friday or not
Carl Ecklund has been working on a response to your letter regarding whether or not hearsay exceptions require a Comito analysis. Carl was on vacation last week and .15 retuming this week. He should be able to get response out to you by the
end of this week. Thanks.
Steve
Steven Mahoney Staff Counsel
.1112712007

Case 2:94-cv-00671-LKK-GGH Document 1398 Filed 02/25/08 Page 292 of 293 Board of Parole Hearings (91.6)445-4687 (916)502-4557 cell
11127/2007

Case 2:94-cv-00671-LKK-GGH Document 1398 Filed 02/25/08 Page 293 of 293

STATE OF CALIFORNIA-Callforoia Department of Corroetiona and Rehabilitation
DEPAR"rMENT OF CORRECTIONS AND REHABILITATION OFFICE OF LEGAL AFFAIRS LITIGATION MANAGEMENT UNIT
1515 K Street, Suite 520 Sacramento, CA 95814 www.cdcr.ca.gov

ARNOLD SCHWARZENEGGER. GOVERNOR

June 8, 2007

Rosen Bien & Galvan, LLP Attorneys at Law
Tenth Floor
315 Montgomery St San Francisco, CA 94104

via Email and U.S. Mail

Re: Valdivia v. Schwarzenegger, Comito Balancing and Hearsay Exceptions

Dear Mr. Stewart:

In response to your letter dated December 15, 2006 stating Plaintiff's concern regarding the use of hearsay evidence in parole revocation hearings and the training to be given to Deputy Commissioners, it is Defendant's position that DCs have always been allowed to use hearsay
exceptions, both those found in the Federal and California Rules of Evidence. If no hearsay exception from either of these Rules applies, then a Comito balancing test will be applied.

Sincerely,

Carl D. Ecklund Staff Counsel Court Compliance Team (916) 324-1986

 
 1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10

11 RALPH COLEMAN,

12

Plaintiff,

NO. Civ. S-90-520 LKK/JFM

13

v.

14 ARNOLD SCHWARZENEGGER, et al.,

15

Defendants.

16 JERRY VALDIVIA, et al.,
17 Plaintiffs,
18 v.
19 ARNOLD SCHWARZENEGGER, et al.,
20 Defendants.
21

/ NO. Civ. S-94-671 LKK GGH ORDER
/

22

The Motion For Injunctive Relief Requiring Timely Access To

23 Inpatient Psychiatric Hospitalization, brought jointly by the

24 plaintiff classes in Valdivia v. Schwarzenegger and Coleman v.

25 Schwarzenegger, came on regularly for hearing before this Court

26 on July 25, 2008, at 10:00 a.m. The Court, having considered

1

1 the arguments and briefs of the parties, and the entire record

2 in the cases Coleman v. Schwarzenegger and Valdivia v.

3 Schwarzenegger, and good cause appearing, hereby makes the

4 following Findings of Fact and Conclusions of Law, and issues

5 the following Order.

6

FINDINGS OF FACT & CONCLUSIONS OF LAW

7

1. Timely access to psychiatric hospitalization is a

8 crucial part of the provision of constitutionally adequate

9 mental health care to persons incarcerated in the Department of

10 Corrections and Rehabilitation (CDCR). See Coleman v. Wilson,

11 912 F. Supp. 1282, 1308 (E.D. Cal 1995).

12

2. The court has previously ordered in the Valdivia case

13 that the defendants provide due process to parolees who seem too

14 mentally ill to participate in parole revocation proceedings.

15 See Order, January 1, 2008. The Valdivia Remedial Plan also

16 encourages use of alternative sanctions in lieu of retaking the

17 parolee into custody. See Valdivia Remedial Plan, March 9, 2004,

18 at 1-2. This Court also has previously entered numerous orders

19 to ensure such timely access to psychiatric hospitalization as

1
20 part of the overall remedy in the Coleman case.

21

1
See, e.g., 5/22/98 Stipulation and Order [Docket 945] (SVPP

facility); 7/26/99 Order ¶ 9 [Docket 1055] (requiring a plan “for 22 expediting the transfers of seriously mentally disordered inmates

to programs with the level of care to which they have been 23 referred.”); 8/28/00 Order ¶ 1 [Docket 1195] (ordering

implementation of Report recomm endations by Coleman expert, Dr. 24 Koson on improving access to inpatient beds); 4/4/01 Order [Docket

1262] (adopting timelines for transfers to higher levels of care); 25 6/27/01 Order ¶ 4 (“On or before July 6, 2001, defendants shall

submit … the Department of Mental Health inpatient bed usage study 26 and needs assessment,”); 3/4/02, 5/7/02, 10/8/02 and 1/19/04 Orders

2

1

3. Timely access to the appropriate levels of mental

2 health care, including the highest levels of care in an

3 inpatient hospital setting, is also critical to ensuring the due

4 process rights of persons confined by CDCR by virtue of an

5 accusation of parole violation. The rights of such persons to

6 notice and an opportunity to be heard under the Constitution and

7 under the Valdivia Permanent Injunction are not appropriately

8 protected when such persons are denied necessary mental health

9 treatment.

10

4. Plaintiffs have demonstrated that Defendants in both

11 cases have been pursuing and continue to pursue a statewide

12 systemic policy of denying inpatient hospitalization to parolees

13 confined by CDCR during the period before their parole violation

14 hearings are complete, and to all inmates during the period

15 within 35 days of a release on parole.

16

5. The above-described policy of denying inpatient

17 (all addressing defendants’ inpatient bed studies); 7/9/04 Order [Docket 1594] (setting a deadline by which defendants “with the
18 assistance of the special master’s expert(s), shall complete the design for and submit to the special master a plan for the
19 execution of an unmet inpatient bed needs study.”); 3/3/06 Order [Docket 1773] (approving the January 2006 Revised Program Guide,
20 including Chapter 6 requiring the provision of inpatient services to patients housed in CDCR prisons.); 5/2/06 Order (addressing
21 aspects of the April 17, 2006 plan for the provision of acute and intermediate beds and MHCBs for all male and females housed within
22 CDCR.); 6/28/06 Order [Docket 1855] (joining DMH as defendant); 2/7/07 Order [Docket 2134] (pay for DMH clinicians.); 3/12/07 Order
23 [Docket 2158] (referrals and transfers to DMH programs); 5/23/07 Order [Docket 2237] (pay parity for all DMH clinicians providing
24 care to CDCR class members); 6/28/07 Order [Docket 2301] (DMH clinician pay, and ASH beds); 8/2/07 Order [Docket 2386] (interim
25 reports on ASH admissions); and 10/18/07 Order [Docket 2461] (treatment and counseling space for the inpatient programs at SVSP
26 and CMF.)

3

1 hospitalization to parolees’ awaiting revocation is contrary to

2 the Orders in the Valdivia case, which have required the

3 defendants to treat plaintiffs’ mental illnesses so as to permit

4 their participation in prompt revocation hearings. The policy

5 also is contrary to the Revised Program Guide which the Court

6 ordered to be implemented on March 3, 2006, see Coleman Docket

7 No. 1773, which indicates that access to inpatient mental health

8 treatment shall be determined by an individual’s need, not

9 release date. That requirement is consistent with the remedies

10 ordered in Coleman to bring mental health care up to

11 Constitutional levels.

12

6. Patients’ due process rights to a Vitek hearing prior

13 to being placed in an inpatient psychiatric program are already

14 protected by the Coleman Revised Program Guide, and present no

15 obstacle to securing the necessary Level of Care for the Coleman

16 and Valdivia class members at issue in this motion.

17

7. The Special Masters in Coleman and Valdivia have

18 attempted to resolve this issue informally without success.

19

ORDER

20

Accordingly, the court ORDERS the defendants as follows:

21

1. Whenever a parole agent places a parolee in his custody

22

and finds the parolee may pose a danger to himself or

23

others by virtue of his mental condition, the parole

24

agent SHALL directly take the parolee to the nearest

25

community hospital for immediate psychiatric evaluation

26

pursuant to California Welfare & Institutions Code §

4

1

5150.

2

2. Parolees who are in the custody of CDCR whose parole has

3

not been revoked SHALL be deemed “inmates” for the

4

purpose of their evaluation and referral for services

5

under the Coleman Program Guide. These individuals shall

6

not be denied treatment on the basis of their status as

7

pre-revocation parolees. The criteria for admission to

8

inpatient psychiatric treatment described in the Coleman

9

Program Guide shall be the defendants’ exclusive

10

criteria in determining inmates’ access to treatment.

11

3. All inmates, including those pre-revocation parolees

12

deemed inmates by virtue of this order, SHALL have full

13

access to DMH inpatient treatment irrespective of their

14

release date.

15

4. When a Valdivia class member has been returned to

16

custody on the allegation of the violation of his parole

17

and where the parolee appears, in the judgment of his

18

attorney or defendants’ staff, too mentally ill to

19

participate in revocation proceedings, the revocation

20

hearing may be suspended pending the parolee’s receipt

21

of treatment to restore his competency, or the parolee’s

22

wait for such treatment.

23

IT IS SO ORDERED.

24

August 7, 2008

25

26

5

 
 Case 2:94-cv-00671-LKK-GGH Document 1530 Filed 03/26/2009 Page 1 of 34

1

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

8

EASTERN DISTRICT OF CALIFORNIA

9

10 JERRY VALDIVIA, ALFRED YANCY, and HOSSIE WELCH, on their own
11 behalf and on behalf of the class of all persons similarly situated,
12 Plaintiffs,
13 v.
14 ARNOLD SCHWARZENEGGER, Governor of
15 the State of California, et al.,

NO. CIV. S-94-671 LKK/GGH O R D E R
TO BE PUBLISHED

16

Defendants.

/

17

18

Plaintiffs are a class comprising California parolees who

19 challenged the parole revocation procedures utilized by

20 defendants as violative of their due rights under the Fourteenth

21 Amendment. After the court granted partial summary judgment in

22 favor of the plaintiffs, a stipulated permanent injunction was

23 entered in March 2004. The instant motion seeks to enforce the

24 injunction notwithstanding the passage of Proposition 9 by

25 California’s voters on November 4, 2008. Plaintiffs assert that

26 portions of Section 5.3 of Proposition 9 conflicts with the

1

Case 2:94-cv-00671-LKK-GGH Document 1530 Filed 03/26/2009 Page 2 of 34

1 requirements of the injunction. Defendants cross-move to modify

2 the injunction to conform to Proposition 9. The court resolves

3 the motions on the papers and after oral argument. For the

4 reasons stated herein, the court grants plaintiffs’ motion and

5 denies defendants’.

6

I. BACKGROUND AND FACTS1

7 A. Procedural History

8

This case commenced in 1994. That year it was certified as

9 a class action, the plaintiff class consisting of (1) California

10 parolees at large; (2) California parolees in custody as alleged

11 parole violators, and who are awaiting revocation of their state

12 parole; and (3) California parolees who are in custody having

13 been found in violation of parole and who have been thereupon

14 sentenced to prison custody. In June 2002, the court granted

15 plaintiffs’ motion for partial summary judgment on the issue of

16 whether defendants’ parole revocation procedures violated the

17 class members’ due process rights. See Valdivia v. Davis, 206 F.

18 Supp. 2d 1068 (E.D. Cal. 2002).

19

At the time of the order defendants had operated a parole

20 revocation process that was constitutionally problematic for

21 several reasons. A parolee could be retaken into custody if his

22 parole officer believed that the parolee had violated his parole

23 and represented a danger of absconding or a danger to himself,

24
1Although the court and the parties are undoubtedly familiar 25 with the history of the case and the orders that have been entered
in it, a detailed review of that history is helpful to understand 26 the basis for the disposition of the instant motions.

2

Case 2:94-cv-00671-LKK-GGH Document 1530 Filed 03/26/2009 Page 3 of 34

1 others, or others’ property. He was to receive notice of the

2 reasons for the parole hold within seven days of it being

3 placed. After the parole hold was placed, the parole officer

4 had a case conference with his supervisor to decide whether

5 there was probable cause to believe the parolee violated his

6 parole. This decision and the reasons thereof were then

7 memorialized in a report that was sent to the Board of Prison

8 Terms (“BPT”). Based on this report, the BPT created a

9 “screening offer” for the parolee, which was essentially an

10 offer of the revocation of parole for a specific term of

11 incarceration in exchange for the parolee’s waiver of his right

12 to a revocation hearing. If the parolee chose not to waive his

13 right to a revocation hearing, the California regulations

14 provided for forty-five days as the time in which the hearing

15 was to occur. Although this deadline was not mandatory, the vast

16 majority of revocation hearings occurred within that timeframe.

17

This procedure, the court concluded, violated parolees’ due

18 process rights as set forth in Matthews v. Eldridge, 424 U.S.

19 319 (1976), Morrissey v. Brewer, 408 U.S. 471 (1972), and Gagnon

20 v. Scarpelli, 411 U.S. 778 (1973). In those cases, the Court had

21 held that a probable cause hearing must be held promptly for

22 parolees being held in custody, and the defendants’ forty-five

23 day deadline for holding revocation hearings did not meet that

24 definition under any court’s formulation. The court’s holding

25 was based on the parolee’s right to be promptly heard when his

26 liberty interest was at stake as well as his due process

3

Case 2:94-cv-00671-LKK-GGH Document 1530 Filed 03/26/2009 Page 4 of 34

1 interest in the state making a reliable parole revocation

2 determination. Valdivia v. Davis, 206 F. Supp. 2d at 1078.

3 B. Creation of a Remedy

4

In October 2002, the court ordered defendants to file a

5 proposed remedial plan to address the Constitutional

6 deficiencies identified in the June order. The parties were also

7 directed to meet and confer so that the defendants could adapt

8 the proposed remedial plan into a proposed remedial order to be

9 presented to the court.

10

On July 23, 2003, the court issued an order responding to

11 the defendants’ request for guidance from the court as to “what

12 precisely the Constitution requires with respect to the timing

13 and content of revocation hearings.” Order, July 23, 2003 at 3-

14 4. The court expressed its hesitation at doing so since

15 procedural due process requirements are flexible as to each

16 factual situation. Nevertheless, to facilitate the development

17 of an adequate remedy, the court explained what it understood to

18 be the minimum features that the plan would need to include in

19 order to be constitutionally sound.

20

After a comprehensive review of the case law surrounding

21 the promptness of probable cause hearings in the parole context,

22 as well as in the context of other constitutional deprivations,

23 the court advised the defendants that, “a period of ten days [to

24 hold a probable cause hearing] strikes a reasonable balance

25 between inevitable procedural delays and the state’s interest in

26 conducting its parole system, on the one hand, and the liberty

4

Case 2:94-cv-00671-LKK-GGH Document 1530 Filed 03/26/2009 Page 5 of 34

1 interests of the parolees, on the other.”2 Id. at 13.

2

Recalling that the summary judgment order rested not only

3 on the importance of the promptness of the probable cause

4 hearing but its accuracy as well, the court then set forth some

5 minimal standards for the probable cause hearings. As stated in

6 Morrissey, the parolee needed to have notice of the grounds for

7 his revocation, the probable cause hearings needed to be

8 conducted by a neutral decisionmaker and the parolee had to have

9 an opportunity to present documentary evidence and witnesses and

10 to cross-examine adverse witnesses. Finally, the results of the

11 hearing needed to be documented in a written report.

12 Alternatively, the defendants could hold a unified hearing that

13 was sufficiently prompt and whose contents met the due process

14 requirements for both probable cause and revocation hearings.

15

After months of delay by defendants in filing their

16 proposed remedial plan, caused by the defendants’ appeal of the

17 court’s order, withdrawal of the appeal, and failed settlement

18 negotiations with plaintiffs, the court granted defendants “one

19 last chance” to file a remedial plan by November 29, 2003.

20 Order, Nov. 5, 2003 at 4. On November 24, the parties filed a

21 stipulated motion for approval of settlement.

22 C. The Stipulated Permanent Injunction

23

Pursuant to the settlement, a stipulated permanent

24
2The court observed that in the year since the entry of the 25 summary judgment order, the delays in holding revocation hearing
had apparently increased so that a vast majority of hearings were 26 not held within forty-five days.

5

Case 2:94-cv-00671-LKK-GGH Document 1530 Filed 03/26/2009 Page 6 of 34

1 injunction was provided to the court, which issued it by order

2 on March 9, 2004. There are several provisions relevant to the

3 instant motion:

4

1) A parole revocation hearing shall be held no

later than 35 calendar days from the date of the

5

placement of the parole hold. Stipulated

Permanent Injunction (“Inj.”) ¶¶ 11(b)(iv), 23.

6

2) Defendants shall hold a probable cause hearing no

later than 10 business days after the parolee has

7

been served with notice of the charges and

rights, which shall occur not later than three

8

business days from the placement of the parole

hold. Inj. ¶ 11(d).

9

3) Defendants shall appoint counsel for all parolees

at the beginning of the RTCA3 stage of the

10

revocation proceedings. Defendants shall provide

an expedited probable cause hearing upon a

11

sufficient offer of proof by appointed counsel

that there is a complete defense to all parole

12

violation charges that are the basis of the

parole hold. Inj. ¶ 11(b)(I).

13

4) At probable cause hearings, parolees shall be

allowed to present evidence to defend or mitigate

14

against the charges and proposed disposition.

Such evidence shall be presented through

15

documentary evidence or the charged parolee’s

testimony, either or both of which may include

16

hearsay testimony. Inj. ¶ 22.

5) The use of hearsay evidence shall be limited by

17

the parolees’ confrontation rights in the manner

set forth under controlling law as currently

18

stated in United States v. Comito, 177 F.3d 1166

(9th Cir. 1999). The Policies and Procedures

19

shall include guidelines and standards derived

from such law. Inj. ¶ 24.

20

6) Parolees’ counsel shall have the ability to

subpoena and present witnesses and evidence to

21

the same extent and under the same terms as the

state. Inj. ¶ 21.

22

The injunction was accompanied by the defendants’ remedial

23

24
3RTCA refers to Return to Custody Assessment, which is “the 25 practice by which Defendants offer a parolee a specific disposition
in return for a waiver of the parolee’s right to a preliminary or 26 final revocation hearing, or both.” Inj. ¶ 9(d).

6

Case 2:94-cv-00671-LKK-GGH Document 1530 Filed 03/26/2009 Page 7 of 34

1 plan, a primary feature of which was the use of remedial

2 sanctions or community-based treatment in lieu of the parole

3 officer finding a parole violation. Valdivia Remedial Plan at 1-

4 2. It also provided that when an expedited hearing is granted,

5 it is to be held within the sixth and eighth business day after

6 the placement of the parole hold, or as soon as possible

7 thereafter. Id. at 4. As the court held in its June 9, 2005

8 order, this plan was integrated into the Injunction and thus

9 binds the defendants.

10 D. Proposition 9

11

On November 4, 2008, the voters of California passed

12 Proposition 9, the “Victims’ Bill of Rights Act of 2008: Marsy’s

13 Law.” The initiative was based on the conclusion that the rights

14 of crime victims were not adequately respected in the criminal

15 justice process, specifically mentioning perceived problems in

16 the parole consideration process for those convicted of violent

17 crimes. Declaration of Geoffrey T. Holtz in Support of Motion to

18 Enforce Injunction (“Holtz Decl.”) ¶ 5, Ex. D (text of

19 Proposition 9, hereafter “Prop. 9”) § 2.4 In its Statement of

20
4Defendants request the court take judicial notice of the text 21 of Proposition 9 and the California Attorney General’s description
and legislative analysis of it sent to voters. A court may take 22 judicial notice of a fact not subject to reasonable dispute, either
because the fact is generally known within the territorial 23 jurisdiction of the trial court or because the fact is capable of
accurate and ready determination from sources whose accuracy cannot 24 reasonably questioned. Fed. R. Evid. 201(b). A court shall take
judicial notice of a judicially noticeable fact “if requested by 25 a party and supplied with the necessary information.” Fed. R.
Evid. 210(d). Here, both of those elements have been met and the 26 court accordingly takes judicial notice of both documents.

7

Case 2:94-cv-00671-LKK-GGH Document 1530 Filed 03/26/2009 Page 8 of 34

1 Purpose and Intent, the proposition provides in full,

2

It is the purpose of the People of the State of

California in enacting this initiative measure to:

3

1. Provide victims with rights to justice and due

process.

4

2. Invoke the rights of families of homicide victims

to be spared the ordeal of prolonged and

5

unnecessary suffering, and to stop the waste of

millions of taxpayer dollars, by eliminating

6

parole hearings in which there is no likelihood a

murderer will be paroled, and to provide that a

7

convicted murderer can receive a parole hearing

no more frequently than every three years, and

8

can be denied a follow-up parole hearing for as

long as 15 years.

9 Id. § 3.

10

Proposition 9 amends the Penal Code to add section 3044,

11 which provides,

12

(a) Notwithstanding any other law, the Board of Parole

Hearings. . .shall be responsible for protecting

13

victims’ rights in the parole process. Accordingly, to

protect a victim from harassment and abuse during the

14

parole process, no person paroled from a California

correctional facility following incarceration for an

15

offense committed on or after the effective date of

this act shall, in the event his or her parole is

16

revoked, be entitled to procedural rights other than

the following:

17

(1) A parolee shall be entitled to a probable cause

hearing no later than 15 days following his or her

18

arrest for violation of parole.

(2) A parolee shall be entitled to an evidentiary

19

revocation hearing no later than 45 days following his

or her arrest for violation of parole.

20

(3) A parolee shall, upon request, be entitled to

counsel at state expense only if, considering the

21

request on a case-by-case basis, the board or its

hearing officers determine:

22

(A) The parolee is indigent; and

(B) Considering the complexity of the charges, the

23

defense, or because the parolee’s mental or

educational capacity, he or she appears incapable of

24

speaking effectively in his or her own defense.

(4) In the event the parolee’s request for counsel,

25

which shall be considered on a case-by-case basis, is

denied, the grounds for denial shall be state

26

succinctly in the record.

8

Case 2:94-cv-00671-LKK-GGH Document 1530 Filed 03/26/2009 Page 9 of 34

1

(5) Parole revocation determinations shall be based on

a preponderance of evidence admitted at hearings

2

including documentary evidence, direct testimony, or

hearsay evidence offered by parole agents, peace

3

officers, or a victim.

(6) Admissions of the recorded or hearsay statement of

4

a victim or percipient witness shall not be construed

to create a right to confront the witness at the

5

hearing.

(b) The board is entrusted with the safety of victims

6

and the public and shall make its determination

fairly, independently, and without bias and shall not

7

be influenced by or weigh the state cost or burden

associated with just decisions. The board must

8

accordingly enjoy sufficient autonomy to conduct

unbiased hearings, and maintain an independent legal

9

and administrative staff. The board shall report to

the Governor.

10

Prop. 9 § 5.3.

11

Finally, the proposition contains a severability provision

12

that provides that any provision found to be invalid or

13

unconstitutional may be severed and the remaining provisions

14

given full force and effect. Id. § 8.

15

The Voter Information Guide, prepared by the Attorney

16

General, described Proposition 9 to voters and included analysis

17

by the Legislative Analyst. Defendants’ Request for Judicial

18

Notice ¶ 1, Ex. A. On the first page of the analysis, the

19

Legislative Analyst summarized the estimate of the fiscal impact

20

of the proposition as including a net savings “for the

21

administration of parole hearings and revocations, unless the

22

changes in parole revocation procedures were found to conflict

23

with federal legal requirements.” Id. at 58. In the more

24

extensive analysis, the Legislative Analyst described that the

25

proposition contained changes affecting the revocation of

26

9

Case 2:94-cv-00671-LKK-GGH Document 1530 Filed 03/26/2009 Page 10 of 34

1 parole. Id. at 59. This discussion began with the “Background”

2 section, in which the Analyst explained that, “A federal court

3 order requires the state to provide legal counsel to parolees,

4 including assistance at hearings related to parole revocation

5 charges.” Id.

6

The Analyst then described some of the central elements of

7 the Injunction in this case, including the deadlines for holding

8 probable cause and revocation hearings. Id. at 60. The Analyst

9 explained that Proposition 9 extends the deadlines for holding

10 revocation procedures and restricts the appointment of counsel.

11 The Analyst then opined, “Because this measure does not provide

12 for counsel at all parole revocation hearings, and because the

13 measure does not provide counsel for parolees who are not

14 indigent, it may conflict with the Valdivia court order, which

15 requires that all parolees be provided legal counsel.” Id.

16

Finally, the Legislative Analyst provided an estimate of

17 the fiscal impacts of the proposition at the state and county

18 levels, emphasizing throughout that the estimates might change

19 depending on how the proposition is interpreted by the courts.

20 Id. at 60-61. The Analyst cautioned that, “some of these changes

21 may run counter to the federal Valdivia court order related to

22 parole revocations and therefore could be subject to legal

23 challenges, potentially eliminating these savings.” Id. at 61.

24

II. STANDARD

25 A. Motion to Enforce the Injunction

26

A district court has continuing jurisdiction to enforce its

10

Case 2:94-cv-00671-LKK-GGH Document 1530 Filed 03/26/2009 Page 11 of 34

1 injunction. Crawford v. Honig, 37 F.3d 485, 488 (9th Cir. 1994).

2 When an action by the state, including the passage of

3 legislation, conflicts with a federal order to remedy

4 Constitutional violations, the state act must give way to the

5 court’s order. Missouri v. Jenkins, 495 U.S. 33, 55 (1990);

6 North Carolina State Bd. of Educ. v. Swann, 402 U.S. 43, 45

7 (1971).

8 B. Motion to Modify the Injunction

9

Under Federal Rule of Civil Procedure 60(b)(5), a court may

10 relieve a party from its obligations under an order of the court

11 if prospective application of the order is no longer equitable.

12 See Sys. Fed’n No. 91 v. Wright, 364 U.S. 642, 646-47.

13 Modification of an injunction, including a consent decree, is

14 considered equitable when there has been a significant change in

15 relevant law or factual circumstances. Id. at 647-48; see also

16 Rufo v. Inmates of Suffolk County Jail, 520 U.S. 367, 384

17 (1992). The party seeking the modification bears the burden to

18 show that modification is warranted. Rufo, 520 U.S. at 383. If

19 it does, the court must then consider whether the modification

20 is appropriately tailored to the changed circumstance. Id.

21

III. ANALYSIS

22

Plaintiffs assert that portions of Penal Code section 3044,

23 as set forth in Proposition 9, conflict with provisions of the

24 permanent injunction and must be held invalid. Defendants

25 dispute this, contending that several of the provisions of the

26 Proposition identified by plaintiffs do not conflict with the

11

Case 2:94-cv-00671-LKK-GGH Document 1530 Filed 03/26/2009 Page 12 of 34

1 injunction. To the extent that they do, defendants argue, the

2 injunction should be modified to conform to the will of the

3 California electorate. The court considers each argument in

4 turn.

5 A. Conflict Between Proposition 9 § 5.3 and the Permanent

6

Injunction

7

Under the relevant law, both consent decrees and statutes

8 enacted by initiative should be interpreted according to their

9 plain meanings. See Cal. Civil Code § 1638 (governing

10 interpretation of contracts); Gates v. Rowland, 39 F.3d 1439,

11 1444 (9th Cir. 1994) (rules of contract interpretation for the

12 court’s situs state govern interpretation of a consent decree);

13 Davis v. City of Berkeley, 51 Cal. 3d 227, 234 (1990). With

14 regards to both contracts and consent decrees, if the language

15 employed is clear, there is no need to search elsewhere for the

16 drafters’ intent. Cal. Civil Code § 1638; Davis, 51 Cal. 3d at

17 234. Nonetheless, because the Supremacy Clause requires that

18 state law give way to contrary federal court orders or consent

19 decrees, Swann, 402 U.S. at 45, a court should “adopt an

20 interpretation [of an initiative] consistent with the statutory

21 language and purpose, [which] eliminates doubts as to the

22 provision’s constitutionality.” This is because the voters are

23 presumed to know the superceding effect of the United States

24 Constitution on state law. In re. Lance W., 37 Cal. 3d 873, 890

25 n. 11 (1985); see also Edward J. DeBartolo Corp. v. Fla. Gulf

26 Coast Bldg & Constr. Trades Council, 485 U.S. 568, 575 (1988)

12

Case 2:94-cv-00671-LKK-GGH Document 1530 Filed 03/26/2009 Page 13 of 34

1 (principle of statutory construction that the court will

2 construe a statute to avoid constitutional infirmity so long as

3 such construction is not “plainly contrary to” the intent of the

4 legislature); Ctr. for Bio-Ethical Reform, Inc. v, Los Angeles

5 Co. Sheriff Dep’t, 533 F.3d 780, 791-92 (9th Cir. 2008) (same,

6 collecting California and other federal court of appeals cases).

7

There are several areas in which Proposition 9 § 5.3 (Penal

8 Code § 3044) and the Permanent Injunction are in plain conflict.

9 First, Penal Code § 3044(a) provides that no parolee shall have

10 any procedural rights other than those listed in the statute,

11 notwithstanding any other law. The statute lists as procedural

12 rights the provision of probable cause hearings and revocation

13 hearings within particular timeframes, entitlement to counsel in

14 certain circumstances, and the limited use of hearsay evidence,

15 as well as specifies what shall be the evidentiary basis of and

16 policy considerations guiding the revocation decision. See Prop.

17 9 § 5.3. By purporting to be an exclusive list of the procedural

18 rights of parolees in the revocation process, Proposition 9

19 conflicts with those elements of the Permanent Injunction that

20 give additional procedural rights. These include, inter alia,

21 prompt notice of the basis for the parole hold, accommodation

22 for parolees’ disabilities and other communication barriers,

23 ability of the parolee to present evidence at the probable cause

24 hearing, expedited probably cause hearings in certain

25 circumstances, and provision of the evidence intended to be

26 relied on by the state to the parolee’s counsel. See Inj. ¶¶ 11,

13

Case 2:94-cv-00671-LKK-GGH Document 1530 Filed 03/26/2009 Page 14 of 34

1 13, 14, 18.

2

Second, section 3044(a)(3) sets forth certain circumstances

3 in which a parolee may be appointed counsel. This conflicts with

4 the Permanent Injunction, which provides counsel for all

5 parolees. Inj. ¶ 11(b)(i).

6

Third, section 3044(a)(2) sets the deadline for the parole

7 revocation at 45 days from arrest for violation of the terms of

8 parole. This conflicts with the Permanent Injunction, which

9 provides that the revocation hearing should occur within 35

10 calendar days of the parole hold, unless the parolee waives it

11 or seeks a continuance.5 Inj. ¶ 11(b)(iv).

12

Fourth, section 3044(b) provides that the Board of Parole

13 Hearings shall make its decisions without regard to the “state

14 cost or burden associated with just decisions.” Plaintiffs

15 assert that this conflicts with the Permanent Injunction’s use

16 of remedial sanctions and community based treatment in lieu of

17 revocation, where appropriate. Defendants disagree, observing

18 that neither the Permanent Injunction nor the Remedial Plan

19 integrated into it specify what factors the Board should

20 consider in making its determinations. While, strictly speaking,

21 this is true, it is such a narrow reading of the Permanent

22 Injunction as to constitute a mischaracterization of it. The

23
5As plaintiffs point out, there is no conflict where the 24 parole revocation hearing occurs but the parolee has not been
placed in custody, or where the parolee has been arrested but the 25 parole hold is placed 10 or more days after the arrest, or where
a parole hold is placed but the parolee is released before the 26 revocation hearing occurs.

14

Case 2:94-cv-00671-LKK-GGH Document 1530 Filed 03/26/2009 Page 15 of 34

1 Injunction, through the Remedial Plan, provides that the

2 defendants will utilize remedial sanctions programs in lieu of

3 initiating the parole revocation process where appropriate.

4 Although the Remedial Plan does not enumerate expressly what

5 factors the defendants shall use in determining whether remedial

6 sanctions are appropriate, the Plan does provide that, “The goal

7 is to reduce the number of returns to prison for violations of

8 parole by up to 10% in 2004 and up to 30% by 2006.” Inj.,

9 Remedial Plan at 2. This strongly suggests that the decision to

10 refer a parolee to a remedial sanctions program is informed, at

11 least in part, by the goal of reducing the custodial burden on

12 the state by diverting parolees for whom a return to custody is

13 not necessary in order to preserve public safety. See id.

14 Section 3044(b) appears to conflict with this goal.

15

There are other provisions of Penal Code § 3044 that could

16 be construed to contradict the Permanent Injunction, but may

17 equally validly be interpreted so as to avoid the conflict.

18 These are sections 3044(a)(5) and (a)(6), which discuss the use

19 of hearsay evidence. They provide, “Parole revocation

20 determinations shall be based on a preponderance of evidence

21 admitted at hearings including documentary evidence, direct

22 testimony, or hearsay evidence offered by parole agents, peace

23 officers, or a victim” and “Admissions of the recorded or

24 hearsay statement of a victim or percipient witness shall not be

25 construed to create a right to confront the witness at the

26 hearing.” The former may suggest to a reasonable reader that the

15

Case 2:94-cv-00671-LKK-GGH Document 1530 Filed 03/26/2009 Page 16 of 34

1 only hearsay evidence that may be provided is that offered by

2 parole agents, peace officers, or victims,6 or that this

3 evidence may be relied on without qualification. The latter may

4 suggest to a reasonable reader that the parolee does not have a

5 confrontation right when hearsay evidence by a victim or witness

6 is admitted. If these interpretations were adopted, they would

7 conflict with the Permanent Injunction, which provides that

8 parolees may present hearsay evidence at probable cause hearings

9 and that the use of hearsay evidence is governed by “controlling

10 law as currently stated in United States v. Comito. . . .” Inj.

11 ¶¶ 22, 24, Remedial Plan at 5. The Injunction also acknowledges

12 the parolee’s confrontation rights as a limitation on the use of

13 hearsay evidence. Inj. ¶ 24.

14

Despite this, these sections of Proposition 9 § 5.3 could

15 also reasonably be construed as being in accord with the terms

16 of the Injunction. See In re. Lance W., 37 Cal. 3d at 890 n. 11.

17 Penal Code section 3044(b)(5) may be read as setting forth a

18 non-exhaustive list of evidence that may be relied on if it is

19 admitted. It can reasonably be read not to limit the type of

20 evidence considered or admitted to only those categories listed.

21

Similarly, section 3044(b)(6) may reasonably be read to

22 provide that the admission of hearsay evidence against the

23
6Proposition 9 defines “victim” as “a person who suffers 24 direct or threatened physical, psychological, or financial harm as
a result of the commission or attempted commission of a crime or 25 delinquent act.” Prop. 9 § 4(e). It also includes that person’s
spouse, parents, children, siblings, or guardian. Id. It apparently 26 does not include uncles or neighbors.

16

Case 2:94-cv-00671-LKK-GGH Document 1530 Filed 03/26/2009 Page 17 of 34

1 parolee does not alone create a confrontation right. The

2 construction of this subsection is odd, to say the least, in

3 light of the longstanding rule that hearsay evidence shall be

4 admitted only after the importance of the confrontation right is

5 weighed against other considerations. See, e.g., Crawford v.

6 Washington, 541 U.S. 36 (2004). In other words, admission of

7 hearsay evidence does not “create” a confrontation right, but is

8 itself guided by the confrontation right. Given this, section

9 3044(b)(6) may be understood to provide that hearsay evidence

10 may be admitted, because the parolee may not necessarily have a

11 right to confrontation of every hearsay witness whose statements

12 are sought to be admitted. Whether that hearsay evidence is

13 admitted, however, is guided by the terms of the Injunction,

14 which incorporates controlling law as set forth in United States

15 v. Comito.

16 B. Legal Effect of the Conflict Between Proposition 9 and the

17

Permanent Injunction

18

To the extent that Proposition 9 § 5.3 conflicts with the

19 Permanent Injunction, the former may not be enforced. The

20 Supremacy Clause commands this result. The Supreme Court as well

21 as other courts have repeatedly reached this conclusion in

22 various contexts, including where underlying constitutional

23 violations were at issue and where the federal court’s order was

24 a consent decree.

25

In Cooper v. Aaron, 358 U.S. 1 (1958), the Court explained

26 this principle when confronted with the state of Arkansas’

17

Case 2:94-cv-00671-LKK-GGH Document 1530 Filed 03/26/2009 Page 18 of 34

1 statutes and state constitutional amendments that contradicted

2 the Court’s desegregation orders. The Court characterized the

3 case as “rais[ing] questions of the highest importance to our

4 federal system of government.” Id. at 4. After reiterating that

5 the Fourteenth Amendment explicitly binds the states, the Court

6 “recall[ed] some basic constitutional principles that are

7 settled doctrine,” in light of Arkansas’s Executive and

8 Legislative branches’ belief that they were not bound by certain

9 court orders. Id. at 17.

10

As the Court explained, Article VI of the Constitution

11 provides that the Constitution is the “supreme Law of the Land”

12 and its judiciary supreme in construing what the law is. Id. at

13 18 (internal citations omitted). Every state officer takes an

14 oath to uphold this Constitutional rule. Id. Consequently,

15 recalling the opinion of Chief Justice Marshall, “‘If the

16 legislatures of the several states may, at will, annul the

17 judgments of the courts of the United States, and destroy the

18 rights acquired under those judgments, the constitution itself

19 becomes a solemn mockery.’” Id., citing United States v. Peters,

20 5 Cranch 115, 136 (1809). “A Governor who asserts a power to

21 nullify a federal court order is similarly restrained.” Id. at

22 18-19; see also Jenkins, 495 U.S. at 57 (district court order

23 requiring the state to raise taxes beyond the state statutory

24 limit in order to fund a desegregation plan must be enforced in

25 spite of the state statute, as “[t]o hold otherwise would fail

26 to take account of the obligations of local governments, under

18

Case 2:94-cv-00671-LKK-GGH Document 1530 Filed 03/26/2009 Page 19 of 34

1 the Supremacy Clause, to fulfill the requirements that the

2 Constitution imposes on them”); Swann, 402 U.S. at 44-45 (state

3 law prohibiting bussing for desegregation purposes was invalid

4 as it contradicted federal district court’s order addressing

5 school segregation).

6

In these cases, the Court also addressed the argument that

7 defendants raise here, that it is a central element of democracy

8 that the people make their own laws and a feature of the

9 California system of government that the Executive’s power

10 derives wholly from the people. See Reply In Support of Mot. for

11 Summ. J. at 1, 8-9. While these both may be true, the federal

12 system requires the state -- whether in the form of legislative

13 or executive action -- to accept the limits of its authority as

14 defined by the Constitution. See Jenkins, 495 U.S. at 56-57; see

15 also Cooper, 358 U.S. at 19 (“It is, of course, quite true that

16 the responsibility for public education is primarily a concern

17 of the States, but it is equally true that such

18 responsibilities, like all other state activity, must be

19 exercised consistently with federal constitutional requirements

20 as they apply to state action.”).

21

The Supreme Court has applied this principle in various

22 contexts, including when underlying violations of federal

23 constitutional rights were not at issue. See Washington v.

24 Washington State Commercial Passenger Fishing Vessel Assoc., 443

25 U.S. 658, 693-95 (1979) (treaties with tribes and federal

26 regulations interpreting them override contrary state

19

Case 2:94-cv-00671-LKK-GGH Document 1530 Filed 03/26/2009 Page 20 of 34

1 regulations); City of Tacoma v. Taxpayers of Tacoma, 357 U.S.

2 320, 340-41 (1958) (final judgment of a federal court was

3 binding on state as to question of use of navigable waters;

4 state could not enforce a contrary judgment rendered by the

5 state supreme court). Courts have also applied this rule where

6 the state action would conflict with a consent decree entered in

7 federal court. See Hook v. Arizona Dep’t of Corr., 107 F.3d

8 1397, 1402-1403 (9th Cir. 1997); Stone v. City & County of San

9 Francisco, 968 F.2d 850, 861 n. 20 (9th Cir. 1992). Finally, the

10 state’s action is not given special deference by virtue of

11 having occurred through the initiative process. See generally

12 Citizens Against Rent Control v. Berkeley, 454 U.S. 290, 295

13 (1981); In re. Lance W., 37 Cal. 3d at 890.

14

Consequently, the Permanent Injunction must be enforced so

15 long as it remains in effect; to the extent that Proposition 9

16 is in conflict with it, the Proposition may not be enforced.

17 C. Interpretation of Proposition 9 As a Statement of State Law

18

Plaintiffs offer an alternative interpretation to

19 Proposition 9 § 5.3. They suggest that it articulates the due

20 process requirements for parole revocation proceedings, under

21 state law only.7 This is the approach adopted by the California

22 Supreme Court in In re. Lance W., 37 Cal. 3d 873, when it

23 considered a state ballot initiative that had the possible

24 effect of contradicting prior Supreme Court orders.

25
7Defendants, curiously, have not responded to this argument 26 in their Reply brief.

20

Case 2:94-cv-00671-LKK-GGH Document 1530 Filed 03/26/2009 Page 21 of 34

1

In Lance W., the California electorate had passed as a

2 ballot initiative the Truth In Evidence amendment to the

3 California Constitution. Id. at 879. Briefly, the amendment

4 allows for the admission of all relevant evidence against the

5 defendant in a criminal proceeding and therefore appeared

6 inconsistent with the exclusionary rules accompanying the search

7 and seizure provisions of the state and federal constitutions.

8 Id. at 884. Specifically, the court considered the effect of the

9 amendment on the admissibility of evidence obtained in violation

10 of another person’s right to be free from unreasonable searches

11 and seizures. Id. at 879.

12

The court recognized that the federal exclusionary rule,

13 although grounded in the guarantees of the Fourth Amendment, is

14 “defined by the United States Supreme Court.” Id. at 882. The

15 state electorate is deemed “to know of the superseding impact of

16 federal constitutional provisions on state laws or

17 constitutional provisions which conflict with and restrict

18 rights guaranteed by the United States Constitution.” Id. at 890

19 n. 11. Moreover, the Legislative Analyst, in the initiative

20 description sent to voters, explained that the initiative would

21 cause unlawfully seized evidence to be admitted except where

22 excluded by virtue of the federal Constitution. Id. at 890. From

23 this, the court deduced that the intent of the voters was for

24 the initiative to only alter the state exclusionary rule. Id.;

25 see also People v. Daan, 161 Cal. App. 3d 22, 28 (1984) (“As

26 Proposition 8 cannot reach the federal Constitution, only the

21

Case 2:94-cv-00671-LKK-GGH Document 1530 Filed 03/26/2009 Page 22 of 34

1 federal Fourth Amendment constraints on searches and seizures as

2 explicated by the United States Supreme Court are valid in

3 California.”).

4

Here, a similar construction is necessary. Nothing in the

5 Findings or the Statement of Purpose and Intent indicate that

6 Proposition 9 was intended to set forth or amend parolees’

7 rights arising from the federal Constitution or a consent decree

8 issued by a federal court. Prop. 9 §§ 2-3. The voters are

9 presumed to know the overriding effect of the Constitution and

10 federal court judgments on contrary state laws, In re. Lance W.,

11 37 Cal. 3d at 890 n. 11, and to intend for the state laws to

12 extend only to non-conflicting federal law, whether

13 constitutional, statutory or judicial in origin. In re. Kay, 1

14 Cal. 3d 930, 942 (1970). This presumption must prevail despite

15 the fact that the relevant portions of Proposition 9 § 5.3

16 begin, “Notwithstanding any other law. . .,” since there is

17 nothing in this clause to suggest that it was intended to

18 accomplish what voters are presumed to know cannot be done.

19 Finally, support for this interpretation may be found in the

20 fact that the voters were informed that certain provisions of

21 Proposition 9 may conflict with the orders of this court. See In

22 re. Lance W., 37 Cal. 3d at 890. Given this admonition, the

23 voters could reasonably have intended for the initiative to

24 define state law only.

25

In summary, the Permanent Injunction in this case contains

26 various procedural due process requirements for the parole

22

Case 2:94-cv-00671-LKK-GGH Document 1530 Filed 03/26/2009 Page 23 of 34

1 revocation process, grounded in the court’s determination that

2 the prior procedures had violated the Fourteenth Amendment of

3 the Constitution. As an order of the court, the ongoing validity

4 of the Permanent Injunction remains undisturbed, notwithstanding

5 contrary state law or action by the state’s executive branch.

6 This derives from the authority of this court vis-a-vis the

7 states as provided by the Supremacy Clause.

8

Proposition 9 § 5.3 (Penal Code § 3044) can be construed to

9 only set forth the procedures deriving from state law and the

10 court adopts this construction because it is reasonable and in

11 order to not invalidate a law if it may be reasonably

12 interpreted to avoid constitutional infirmity. See Edward J.

13 DeBartolo Corp., 485 U.S. at 575; Ctr. for Bio-Ethical Reform,

14 Inc., 533 F.3d at 791-92; In re. Lance W., 37 Cal. 3d at 890.

15 Accordingly, the provisions of Proposition 9 addressing the

16 parole revocation procedures, see Prop. 9 § 5.3, do not

17 supercede those set forth in the Permanent Injunction. It is the

18 responsibility of the defendants to ensure that Penal Code §

19 3044 is implemented consistent with this interpretation, unless

20 and until the decree is modified.

21 D. Motion to Modify the Injunction

22

Defendants move to modify the Permanent Injunction to

23 incorporate the changes to parole revocation procedures embodied

24 in Proposition 9. For the reasons explained below, the court

25 denies the motion.

26

Motions to modify a consent decree pose a number of

23

Case 2:94-cv-00671-LKK-GGH Document 1530 Filed 03/26/2009 Page 24 of 34

1 conflicting values. On the one hand is the imperative that,

2 generally speaking, there is an essential value that judgments

3 are final and binding. Any undermining of that understanding

4 diminishes the fundamental structure of litigation. Moreover,

5 when addressing stipulated judgments, unconsented to

6 modifications implicate the fundamental quality of contractual

7 obligations.

8

On the other hand, modification of even stipulated

9 judgments may be appropriate in institutional litigation, in

10 order to permit response to real world changes which effect the

11 circumstances which justified the entry of the judgment in the

12 first place. This is so because institutional judgments tend to

13 be long lasting, as the institution effected changes to meet the

14 requirements of the judgment. Accordingly, it has been held

15 that modification of a federal consent decree in institutional

16 litigation may be warranted when there is a change in factual

17 circumstances or in relevant federal law. Rufo, 502 U.S. at 383;

18 see also Fed. R. Civ. Proc. 60(b). The burden is on the movant

19 to make the showing justifying modification. Rufo, 502 U.S. at

20 383. Thus, although a consent decree resembles, in many

21 respects, a contract between the parties, it is a judicial

22 decree and thus subject to the same rules for modification or

23 recision of judicial orders generally. Id. at 378-79.

24

In Rufo, the High Court confronted a consent decree that

25 had been entered in order to address unconstitutional prison

26 overcrowding. Id. at 374. Six years later, when the prison

24

Case 2:94-cv-00671-LKK-GGH Document 1530 Filed 03/26/2009 Page 25 of 34

1 population had increased beyond initial projections, the county

2 defendant moved to modify the decree. Id. at 376. The district

3 court denied the motion, which the court of appeals affirmed.

4 Id. at 376-77.

5

When the Supreme Court reviewed, it weighed concerns of

6 the parties somewhat similar to those that have been raised in

7 this case. On one hand, a court must be flexible in modifying

8 consent decrees, particularly in cases of institutional reform,

9 because “such decrees remain in place for extended periods of

10 time.” Id. at 380. As such, unforseen circumstances may arise

11 that are out of the defendant’s control and which warrant

12 modification of the decree. Id. at 381. Such flexibility is

13 particularly important, the majority explained, because

14 institutional reform decrees “reach beyond the parties directly

15 involved in the suit and impact on the public’s right to the

16 sound and efficient operation of its institutions.” Id.

17 (internal citation omitted).

18

On the other hand, application of too lax a standard in

19 modification of decrees would undermine the parties’ purpose in

20 entering into the decree. Id. at 383. By entering into a consent

21 decree, a party has obtained an end to the litigation and

22 avoided the risk of a more unfavorable judgment had the case

23 proceeded to trial. Id. at 382-83. Moreover, a court is

24 constrained by Rule 60(b)(5), which provides that modification

25 is only permitted when the decree’s prospective application is

26 no longer equitable. Id. at 383. Thus, any modification that

25

Case 2:94-cv-00671-LKK-GGH Document 1530 Filed 03/26/2009 Page 26 of 34

1 occurs must rest on equitable concerns that have arisen since

2 the entry of the decree. Id.

3

From all this, the High Court established the rule that a

4 consent decree may be modified if a change in federal law or the

5 facts warrants it and, if so, if the modification is narrowly

6 tailored to address that change. Id. at 383. In describing the

7 effect of a change in law, it held that a federal consent decree

8 should be modified if “one or more of the obligations placed

9 upon the parties has become impermissible under federal law.”

10 Rufo, 502 U.S. at 388. It may also be modified when the federal

11 law has changed to “make legal what the decree was designed to

12 prevent.” Id., citing Ry. Employees v. Wright, 364 U.S. 642

13 (1961) and Firefighters v. Stotts, 467 U.S. 561 (1984); see also

14 Agostini v. Felton, 521 U.S. 203 (1997). Here, defendants have

15 not shown, nor even asserted, that there is has been a change in

16 relevant federal law that calls for the modification of the

17 Permanent Injunction.

18

Instead, defendants argue that the passage of Proposition 9

19 constitutes a change in factual circumstance warranting the

20 modification of the Permanent Injunction. Setting aside the

21 defendants’ confounding of law and fact, the argument is

22 unpersuasive.

23

In explaining the standard for modification of consent

24 decrees, the Rufo Court observed that typically a change in

25 factual circumstances may require modification where the new

26 circumstances “make compliance with the decree substantially

26

Case 2:94-cv-00671-LKK-GGH Document 1530 Filed 03/26/2009 Page 27 of 34

1 more onerous” or “unworkable due to unforeseen obstacles” or

2 when “enforcement of the decree without modification would be

3 detrimental to the public interest.” 502 U.S. at 384-85

4 (citations omitted); see also Jeff D. v. Kempthorne, 365 F.3d

5 844, 854 (9th Cir. 2004) (acknowledging these as the reasons

6 warranting modification of a consent decree based on changed

7 factual circumstances). Even when changed factual circumstances

8 exist, however, the court must also consider whether

9 modification of the decree would undermine its purpose. Rufo,

10 502 U.S. at 387.

11

For example, the Rufo Court cited with approval N.Y. State

12 Ass’n for Retarded Children, Inc. v. Carey, 706 F.2d 956 (2d

13 Cir. 1983), where a consent decree had been entered requiring

14 the State to remove mentally retarded persons from

15 constitutionally substandard, large facilities and place them in

16 15-person or smaller facilities by a specified date. The Court

17 of Appeals held that the decree should have been modified, upon

18 defendants’ motion, to place persons covered by the decree in

19 slightly larger facilities (housing 50 persons or fewer). Id. at

20 965. Defendants had shown in their motion to modify that it was

21 extremely difficult to find small facilities to accommodate all

22 the persons covered by the decree, but that immediate placement

23 could be made if the restrictions governing the size of the

24 facilities were loosened. Id. at 966. Defendants also presented

25 expert testimony that some of the mentally retarded persons

26 covered by the decree would fare equally well in a somewhat

27

Case 2:94-cv-00671-LKK-GGH Document 1530 Filed 03/26/2009 Page 28 of 34

1 larger facility than in a smaller one. Id. at 966-67. The court

2 concluded that the unforseen difficulty in obtaining small

3 facilities merited modification of the injunction, since the

4 modification proposed would accomplish the ultimate objective of

5 promptly providing constitutional living conditions to the

6 affected persons. Id. at 968-71.

7

In light of the rule described in Rufo, it is apparent that

8 a change in state law standing alone is not the type of change

9 in factual circumstance that renders continued enforcement of a

10 consent decree inequitable. Indeed, the history of federal

11 institutional litigation demonstrates that fact. See Jenkins,

12 495 U.S. at 56-57; Swann, 402 U.S. at 44-45. The Ninth Circuit

13 has had occasion to recognize and apply that principle. In Hook

14 v. Arizona Dep’t of Corr., 107 F.3d 1397 (9th Cir. 1997), the

15 circuit held that passage of a state law to prohibit funding

16 special masters without legislative approval did not merit

17 modification of a consent decree that provided for a special

18 master. There, the district court had entered consent decrees in

19 four civil rights cases brought by prisoners and the decrees in

20 each case included appointment of a special master to monitor

21 compliance. Id. at 1399-1400. After the Arizona legislature

22 passed a statute requiring its approval of a master before

23 paying the special masters’ fees, the state moved to modify the

24 consent decrees on the grounds that this change in factual

25 circumstance required modification, premised on federalism

26 principles. Id. at 1402.

28

Case 2:94-cv-00671-LKK-GGH Document 1530 Filed 03/26/2009 Page 29 of 34

1

The Circuit upheld the district court’s denial of the

2 motion to modify. Id. at 1403. Applying Rufo, it held that the

3 state bears the burden to show that there is a “significant

4 change” in law or fact warranting the modification. Id. at 1402,

5 citing Rufo, 502 U.S. at 383-84. The court observed that the

6 special masters had been originally appointed in each case due

7 to the courts’ inability to monitor compliance itself and the

8 state’s perpetual non-compliance with court orders. Id. at 1402-

9 1403. Accordingly, the passage of the state statute did not meet

10 the Rufo standard, because the statute’s passage did not alter

11 the district courts’ reasons for originally appointing special

12 masters in each case. Id.; see also United States v. Wayne

13 County, Michigan, 369 F.3d 508 (6th Cir. 2004) (consent decree

14 between federal and state government should not be modified

15 because changes in state statutory and decisional law do not

16 constitute a change in factual circumstances under Rufo and Rule

17 60).

18

Nonetheless, certain language in Hook might appear to lend

19 credence to the approach urged by the defendants here, i.e. that

20 the passage of Proposition 9 indicates the California voters’

21 preference to modify parole revocation procedures in a manner

22 that, defendants contend, is constitutionally adequate.

23 Defendants argue that this suffices to warrant modification.

24

In considering whether modification was merited, the Hook

25 court applied the Rufo factors within the context of the

26 “federalism concerns” it noted as being implicated by

29

Case 2:94-cv-00671-LKK-GGH Document 1530 Filed 03/26/2009 Page 30 of 34

1 institutional injunctions. Hook, 107 F.3d at 1402. It observed

2 that the Supremacy Clause requires state law to give way when it

3 conflicts with the Constitution or federal statute or with an

4 essential part of a federal court’s remedial scheme. Id., citing

5 Stone, 968 F.2d at 862. In holding that modification was not

6 justified, the Hook court apparently concluded that the

7 modification did not meet the Rufo factors and that the elements

8 of the consent decree at issue also were necessary to the

9 remedial scheme, per Stone. Id. at 1402-1403.

10

Hook, however, cannot be interpreted to hold that any

11 portion of the consent decree not strictly necessary to

12 remedying the constitutional violation may be modified out of

13 the decree at any time. The Rufo standard, guided by the

14 language of Rule 60(b), is straightforward in what elements must

15 be present for modification to be appropriate. Because Hook

16 might be read to impose standards outside of the Rufo factors,

17 and because the Hook facts fully met the Rufo standards, such

18 language is simply dicta. Moreover, I now explain with the

19 greatest respect, that the dicta cannot guide subordinate

20 courts.

21

The Rufo court expressly recognized, as many other courts

22 have, that a government entity may enter into a consent decree

23 that is broader than the minimum necessary to remedy a

24 Constitutional violation. The Rufo court explained,

25

[W]e have no doubt that, to save themselves the time,

expense, and inevitable risk of litigation petitioners

26

could settle the dispute over the proper remedy for

30

Case 2:94-cv-00671-LKK-GGH Document 1530 Filed 03/26/2009 Page 31 of 34

1

the constitutional violations that had been found by

undertaking to do more than the Constitution itself

2

requires (almost any affirmative decree beyond a

directive to obey the Constitution necessarily does

3

that), but also more than a court would have ordered

absent the settlement.

4

Rufo, 502 U.S. at 389 (internal citations omitted); see also

5

Suter v. Artist M., 503 U.S. 347, 354 n. 6 (1992); Local No. 93

6

v. City of Cleveland, 478 U.S. 501, 525 (1986); Jeff D., 365

7

F.3d at 851-52; Gilmore v. People of the State of Cal., 220 F.3d

8

987, 1005 (9th Cir. 2000). Instead, in order to be valid the

9

remedy as a whole must “flow from” the constitutional violation

10

identified by the court. Milliken v. Bradley (Milliken II), 433

11

U.S. 267, 282 (1977); see also Rufo, 502 U.S. at 389.

12

Here, defendants have not borne their burden to show that

13

the Permanent Injunction should be modified due to a significant

14

change in factual circumstances. They have not shown that the

15

passage of Proposition 9 makes compliance with the injunction

16

substantially more onerous, unworkable, or otherwise no longer

17

in the public interest. See Rufo, 502 U.S. at 384-85 (citations

18

omitted); Jeff D., 365 F.3d at 854. Instead, the defendants

19

appear to suggest that Proposition 9 offers a constitutionally

20

adequate alternative for remedying the deficiencies in the

21

parole revocation process that the court held were present in

22

2002. Without more, this does not merit modification of the

23

decree. See id.; cf. Carey, 706 F.2d 956 (modification

24

appropriate because it would effectively achieve the purpose of

25

the consent decree and compliance with the decree had become

26

31

Case 2:94-cv-00671-LKK-GGH Document 1530 Filed 03/26/2009 Page 32 of 34

1 prohibitively difficult).

2

Defendants’ position that the Permanent Injunction should

3 be altered because it includes provisions that are not strictly

4 necessary to address the plaintiffs’ due process violations

5 holds no force. As the Supreme Court, Ninth Circuit, and other

6 courts have recognized, a consent decree is not invalid simply

7 because it contains elements that may be broader than those

8 required by federal law. See, e.g., Rufo, 502 U.S. at 389-90;

9 Jeff. D., 365 F.3d at 851-52. The court determined when it

10 entered the Stipulated Permanent Injunction that it represented

11 a valid remedy to the constitutional violations extant at the

12 time, and the defendants have presented nothing to suggest that

13 that determination was in error.8 See Milliken II, 433 U.S. at

14 282 (federal court decrees must be “aimed at eliminating a

15 condition that [violates] the Constitution or . . . flow[s] from

16 such a violation”); Jeff. D., 365 F.3d at 852 (consent decree

17 valid where it “came within the general scope of the pleadings

18 and furthered the objectives upon which the complaint was

19 based”). The consent decree was a bargained solution that the

20 defendants entered into freely; as part of the bargain, each

21 party may have gained or lost elements of a remedial plan that

22 may or may not have been part of a final judgment, had the case

23 proceeded to trial. As plaintiffs point out, at the time the

24 consent decree was entered, California Penal Code § 3056 allowed

25

26

8Nor, given the passage of time to appeal, could they.

32

Case 2:94-cv-00671-LKK-GGH Document 1530 Filed 03/26/2009 Page 33 of 34

1 the state very broad discretion in retaking a parolee into

2 custody. See also In re Etie, 27 Cal.2d 753, 758 (1946) (“The

3 authority under whose legal custody a paroled prisoner remains

4 (Pen. Code § 3056) has broad power to suspend or revoke parole

5 without notice.”) Hence, at the time defendants entered into the

6 consent decree, the decree was in conflict with state law. Under

7 Rufo and related authority, it cannot be the case that conflict

8 with a new state law suffices to merit modification of the

9 decree.9

10

IV. CONCLUSION

11

Accordingly, the court ORDERS as follows:

12

1. Plaintiffs’ motion to enforce the Permanent Injunction

13

is GRANTED as provided herein. To the extent that

14

there is no conflict between the Permanent Injunction

15

and Proposition 9 § 5.3 (Penal Code § 3044), no order

16

is necessary. To the extent that they are in

17

conflict, as identified herein, the Permanent

18

Injunction SHALL supercede California Penal Code §

19

3044.

20 /////

21 /////

22
9Because the defendants have not shown that there has been a 23 change in pertinent law or fact that merits a modification of the
Permanent Injunction, the court need to reach the question of 24 whether Proposition 9 is “suitably tailored to the changed
circumstance” or whether defendants’ proposed modification is 25 simply an attempt to “rewrite [the] consent decree so that it
conforms to the constitutional floor.” Rufo, 520 U.S. at 391; see 26 also Jeff D., 365 F.3d at 854.

33

Case 2:94-cv-00671-LKK-GGH Document 1530 Filed 03/26/2009 Page 34 of 34

1

2. Defendants’ motion to modify the Permanent Injunction

2

is DENIED.

3

IT IS SO ORDERED.

4

DATED: March 26, 2009.

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

34

 
 1

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

8

EASTERN DISTRICT OF CALIFORNIA

9

10 JERRY VALDIVIA, ALFRED YANCY, and HOSSIE WELCH, on their own
11 behalf and on behalf of the class of all persons similarly situated,
12 Plaintiffs,
13 v.
14 ARNOLD SCHWARZENEGGER, Governor of
15 the State of California, et al.,

NO. CIV. S-94-671 LKK/GGH O R D E R

16

Defendants.

/

17

18

Pursuant to the Eighth Report of the Special Master, the

19 court orders as follows:

20

1. The court finds that defendants are in substantial

21 compliance with the following requirements of the Stipulated

22 Order for Permanent Injunctive Relief, and that the subjects

23 will therefore no longer be a primary focus of Plaintiffs’ or

24 the Special Master’s monitoring unless they are inextricably

25 linked with review of the hearing process or arise in the course

26 of investigating an individual parolee’s situation. These items

1

1 will remain in this status unless it comes to the parties’ or

2 Special Master’s attention that there has been a significant

3 decline in compliance.

4

These orders apply to the following requirements:

5

1. Designation of information as confidential;

6

2. Consideration of remedial sanctions at each step;

7

3. Remedial Sanctions Order requirements for female

8 parolees;

9

4. Out of county transfers.

10

Defendants shall report on the status of these requirements

11 on January 8, 2011, and every six (6) months thereafter. These

12 reports may be incorporated in the defendants’ compliance

13 report.

14

IT IS SO ORDERED.

15

DATED: April 12, 2010.

16

17

18

19

20

21

22

23

24

25

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FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

JERRY VALDIVIA; ALFRED YANCY;



HOSSIE WELCH, on their own

behalf and on behalf of the class

of all persons similarly situated,

 Plaintiffs-Appellees, v.

ARNOLD SCHWARZENEGGER, Governor of the State of California,
 Defendant-Appellant.

Nos. 08-15889 and 09-15836
D.C. No. 2:94-CV-00671-
LKK-GGH
OPINION

Appeal from the United States District Court for the Eastern District of California
Lawrence K. Karlton, District Judge, Presiding
Argued and Submitted January 11, 2010—San Francisco, California
Filed March 25, 2010
Before: John T. Noonan, Michael Daly Hawkins and Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge Hawkins; Partial Concurrence and Partial Dissent by Judge Noonan

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COUNSEL
Vickie P. Whitney, Office of the Attorney General of the State of California, Sacramento, California, and S. Anne

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Johnson, Hanson Bridgett LLP, San Francisco, California, for the defendant-appellant.

Loren G. Stewart and Ernest Galvan, Rosen, Bien & Galvan LLP, San Francisco, California; Geoffrey Holtz, Bingham McCutchen LLP, San Francisco, California, for the plaintiffsappellees.

Kent S. Scheidegger, Criminal Justice Legal Foundation, Sacramento, California, for amici Criminal Justice Legal Foundation, Crime Victims United of California, and Senator George Runner.

Wendy Musell, Stewart & Musell, San Francisco, California, for amici The American Civil Liberties Union of Northern California, Legal Services for Prisoners and Children, The Justice Policy Institute, the National Council on Crime and Delinquency, The Sentencing Project, Hadar Aviram, W. David Ball, Sharon Dolovich, Malcolm M. Feeley, Michael Pinard, Jonathan Simon and Jeremy Travis.

OPINION
HAWKINS, Circuit Judge:
These consolidated appeals stem from the November 2003 Valdivia Permanent Injunction ( “the Injunction”)—based on a stipulation between Jerry Valdivia ( “Valdivia”) and a class of similarly situated California parolees 1 (“Plaintiffs”), and Governor Arnold Schwarzenegger and the State of California (collectively “the State”)—prescribing procedures for parole
1More specifically, the Plaintiff class consists of: “(1) California parolees at large; (2) California parolees in custody as alleged parole violators, and who are awaiting revocation of their state parole; and (3) California parolees who are in custody having been found in violation of parole and who have been thereupon sentenced to prison custody. ”

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revocation hearings in California. Here, the State appeals two post-Injunction orders: (1) the March 25, 2008 order ( “March 2008 order”) adopting the Injunction-related recommendations of the court-appointed Special Master regarding the use of hearsay evidence in parole revocation hearings; and (2) the March 26, 2009 order ( “March 2009 order ”) denying the State’s motion to modify the Injunction to conform to the voter promulgated statute, Cal. Penal Code § 3044, formerly California Proposition 9 ( “Proposition 9”).

Bound by United States v. Comito, 177 F.3d 1166 (9th Cir. 1999), we affirm the March 2008 order. Because the March 2009 order made no express determination that any aspect of the California parole revocation procedures, as modified by Proposition 9, violated federal constitutional rights, nor any determination that the Injunction was necessary to remedy a constitutional violation, we vacate and remand the March 2009 order for the district court to make that determination and to reconcile the Injunction and Proposition 9.

Background Facts & Procedural History

In May 1994, Plaintiffs challenged the constitutionality of

parole revocation procedures under the Fourteenth Amend-

ment’s right to due process, as defined in

Morrissey v.

Brewer, 408 U.S. 471, 487-90 (1972), and Gagnon v. Scar-

pelli, 411 U.S. 778, 786 (1973). The district court granted par-

tial summary judgment in favor of Plaintiffs, holding that

California’s parole revocation hearing system violated their

procedural due process rights. Valdivia v. Davis, 206 F. Supp.

2d 1068, 1078 (E.D. Cal. 2002). The parties later agreed to

the Injunction, which limited “the use of hearsay evidence . . .

by parolees’ confrontation rights in the manner set forth in . . .

Comito.”

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In response to the parties’ attempts to clarify the Injunction in light of United States v. Hall, 419 F.3d 980 (9th Cir. 2005), and after additional briefing and a hearing, the Special Master recommended: (1) the State should be found in violation of the Injunction; (2) all hearsay is subject to Comito balancing —weighing “the releasee’s interest in his constitutionally guaranteed right to confrontation against the Government’s good cause for denying it, ” Comito, 177 F.3d at 1170; (3) hearsay exceptions do not eliminate having to engage in full Comito balancing; and (4) the State did not demonstrate compliance with paragraph 24 of the Injunction. 2 In its March 2008 order, the district court fully adopted the Special Master’s conclusions and recommendations. The State subsequently filed this timely appeal.

The March 2009 order

Following passage of Proposition 9, Plaintiffs moved the district court to enforce the Injunction and bar implementation of Proposition 9 due to its conflict with the Injunction. The State countered with a motion to modify the Injunction to conform to Proposition 9.

After oral argument, the district court issued its March 2009 order, granting, in part, Plaintiffs’ motion to enforce the Injunction, and denying the State’s motion to modify it. The district court found that while several provisions of Proposition 9 conflict with the Injunction, application of the Supremacy Clause meant the Injunction prevails over state law, to the extent of any conflict. Modification was also not warranted,

2Paragraph 24 of the Injunction states: “The use of hearsay evidence shall be limited by the parolees’ confrontation rights in the manner set forth under controlling law as currently stated in United States v. Comito , 177 F.3d 1166 (9th Cir. 1999). The Policies and Procedures shall include guidelines and standards derived from such law. ”

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according to the district court, because Proposition 9 did not constitute a change in applicable law or facts. The court did not reach whether Proposition 9 violates the U.S. Constitution. The State then filed this timely appeal of the March 2009 order, and the two appeals were consolidated.

JURISDICTION

We have jurisdiction over the appeal of both orders pursuant to 28 U.S.C. § 1292(a)(1).

Because the March 2008 order modifies an existing injunction, it is immediately appealable under 28 U.S.C. § 1292(a)(1). See Gon v. First State Ins. Co. , 871 F.2d 863, 865-66 (9th Cir. 1989). It also fulfills the three-part test of Thompson v. Enomoto , 815 F.2d 1323, 1326-27 (9th Cir. 1987). First, it “ha[d] the practical effect of the grant or denial of an injunction ”: it added the recommendations of the Special Master to the Injunction and mandated them, including the qualitative assessment and training of Deputy Commissioners and the Special Master’s new role as a moderator and supervisor. See id. Second, it had “serious, perhaps irreparable consequences,” id., such as the possible contravention of Supreme Court precedent by imposing “numerous . . . costly obligations” on the State, including additional required training and monitoring programs. Cf. Negrete v. Allianz Life Ins. Co. of N. Am. , 523 F.3d 1091, 1097 (9th Cir. 2008) (finding serious consequences where “none of the other cases in which Allianz is, or may be, involved can be settled by or in the other courts in which they are located absent permission of Negrete Counsel and the court in this case ”). Finally, it “can only be challenged by immediate appeal because if [the State] awaits the final determination of this case ” the damage to hearsay determinations in parole hearings, and the cost of monitoring the Deputy Commissioners, will have already accrued. See id. It is unclear how long this litigation, which began over 15 years ago, will continue before a final judg-

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ment issues. “A decision by us months or years after that cannot repair the damage. ” Id.

The March 2009 order is appealable, as both parties concede, under 28 U.S.C. § 1292(a)(1), as the State is appealing an order refusing to modify an injunction.

STANDARD OF REVIEW

The district court’s March 2008 order adopted the Special Master’s report and recommendations in its entirety. The legal conclusions of a Special Master are reviewed de novo. See United States v. Clifford Matley Family Trust , 354 F.3d 1154, 1163 n.10 (9th Cir. 2004). Factual findings of a Special Master are entitled to deference and reviewed for clear error. See Labor/Cmty. Strategy Ctr. v. Los Angeles County Metro. Transit Auth., 263 F.3d 1041, 1049 (9th Cir. 2001).

“[M]atters of discretion, ” such as evidentiary rulings and interpretations of the Federal Rules of Civil Procedure, are reviewed for abuse of discretion. Harman v. Apfel , 211 F.3d 1172, 1175 (9th Cir. 2000). Under this standard, a reviewing court cannot reverse absent a definite and firm conviction that the district court committed a clear error of judgment in the conclusion it reached upon a weighing of relevant factors. SEC v. Coldicutt, 258 F.3d 939, 941 (9th Cir. 2001). Motions for relief from judgment under Fed. R. Civ. P. 60(b), such as the one present in the appeal of the March 2009 order, are reviewed for abuse of discretion. See United States v. Asarco Inc., 430 F.3d 972, 978 (9th Cir. 2005).

ANALYSIS

I. The March 2008 Order

The State argues the district court erred in applying the Comito test to parole revocation hearings via the March 2008 order. It contends any hearsay evidence falling under a tradi-

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tional or long-standing exception ought not to be subject to the Comito balancing test, based on this court’s holding in Hall, 419 F.3d 980. This argument, however, fails. The law of this circuit is clear: the Comito test remains central to confrontation rights in parole hearings. The district court did not err in subjecting the State’s parole revocation hearings to these requirements.

A. Nature of the confrontation rights of parolees

We begin by noting that parole revocation hearings are “not part of a criminal prosecution and thus the full panoply of rights due a [criminal] defendant” are not due a parolee. Morrissey, 408 U.S. at 480. Nonetheless, parolees are due certain “minimum requirements of due process, ” including the right to confront witnesses. Id. at 488-89. These rights, however, are based in the Due Process Clause of the Fourteenth and Fifth Amendments and not in the Confrontation Clause of the Sixth Amendment and its articulation in the Crawford line of cases.3 Hall, 419 F.3d at 985-86 ( “We, like the two circuits that have also addressed this question, see no basis in Crawford or elsewhere to extend the Sixth Amendment right of confrontation to supervised release proceedings. ”) (referencing Crawford v. Washington, 541 U.S. 36 (2004)).

[1] In Comito, this court specified the test for the confrontation rights of parolees. “[I]n determining whether the admission of hearsay evidence violates the releasee’s right to

3Our dissenting colleague takes issue with our use of Comito balancing “where no federal confrontation right is infringed, ” and where the Supreme Court has found that most hearsay exceptions do not implicate the Confrontation Clause of the Sixth Amendment. Dissenting Op. at 4839-40. But we are not faced here with applications of the Sixth Amendment Confrontation Clause to parole revocation hearings, rather, the right to confrontation as espoused by Fourteenth Amendment due process, and its articulation in Morrissey by the Supreme Court, and in Hall and Comito in our circuit. There is therefore a federal confrontation right at issue here, one that is rooted in due process rather than the Sixth Amendment.

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confrontation in a particular case, the court must weigh the releasee’s interest in his constitutionally guaranteed right to confrontation against the Government’s good cause for denying it.” 177 F.3d at 1170. The weight given to a parolee’s right to confrontation is assessed by two non-exhaustive factors: “the importance of the hearsay evidence to the court’s ultimate finding and the nature of the facts to be proven by the evidence.” Id. at 1171. If the hearsay evidence is not important to the finding of a violation, the error in admitting the hearsay evidence can be considered harmless, but is still subject to the good cause analysis. Id. at 1171-72.

[2] Here, in the Injunction, the district court ordered the State to follow Comito and limit the use of hearsay evidence to the boundaries set by parolees’ confrontation rights. The Special Master, and in turn the district court, did not err in the determination that Comito balancing continues to be the test in the Ninth Circuit, and that even if hearsay falls within a recognized exception, it is still subject to Comito balancing.

B. United States v. Hall

In Hall, the parolee was faced with hearsay evidence from a non-available declarant. After “[b]alancing the Comito factors,” the court found that the parolee had “little interest in confrontation . . . because [the declarant’s out-of-court statements] w[ere] insignificant to the ultimate finding[,] ” and were “outweighed by the government’s substantial showing of good cause” for failing to produce the declarant at the hearing. Hall, 419 F.3d at 989. While the hearsay exception evidence lessened “the importance of [the declarant’s out-ofcourt statements] to the court’s ultimate finding, ” and rendered harmless any error in admitting those out of court statements, id. at 986 & n.5, the failure to produce the declarant remained subject to analysis of the Government’s good cause explanation, and to full Comito balancing.

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[3] The application of a balancing test to the admission of hearsay evidence in parole revocation hearings is not an open question in this circuit. 4 See Hall, 419 F.3d at 986; Comito, 177 F.3d at 1170-73; United States v. Walker , 117 F.3d 417, 420-21 (9th Cir. 1997); United States v. Simmons , 812 F.2d 561, 564 (9th Cir. 1987). Hall did not overrule or modify the Comito balancing test.

C. Hearsay exceptions and Comito balancing

[4] Because the Federal Rules of Evidence do not apply to parole revocation hearings, see Walker, 117 F.3d at 420, evidence falling within enumerated hearsay exceptions is subject to Comito balancing. While, in general, hearsay exception evidence is admissible at trial because of assurances of reliability,5 reliability or “trustworthiness” is included in the Comito “right to confrontation ” analysis: less reliable hearsay can contribute to more weight placed on a parolee’s right to confrontation over the government’s good cause. Comito, 177 F.3d at 1171-72 ( “Because the hearsay evidence was important to the court’s finding, and because it involved the least reliable form of hearsay, Comito’s interest in asserting his right to confrontation is at its apogee. ”). Reliability does not result in automatic admissibility: “Simply because hearsay evidence bears some indicia of reliability does not render it admissible.” Hall, 419 F.3d at 988. Therefore, evidence falling under a hearsay exception does not circumvent the Comito balancing test. It remains a part of it as an “indicia of reliability,” and subject to good cause analysis.

4We are aware of the Second Circuit’s contrary holding. See United States v. Williams , 443 F.3d 35, 45 (2d Cir. 2006). However, as a threejudge panel, and with no intervening Supreme Court or Ninth Circuit precedent, we are bound by this court’s holding in Comito.
5See Fed. R. Evid. 803, Advisory Committee Notes ( “The present rule proceeds upon the theory that under appropriate circumstances a hearsay statement may possess circumstantial guarantees of trustworthiness sufficient to justify nonproduction of the declarant in person at the trial even though he may be available. ”).

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[5] The Comito test does not elevate the due process rights of parolees to those of criminal defendants. Criminal defendants have trial rights, including a jury trial, proof beyond a reasonable doubt, application of the applicable rules of evidence, and Sixth Amendment confrontation rights. Even testimonial hearsay that falls under a “firmly rooted hearsay exception” or bears “particularized guarantees of trustworthiness” may not be admitted against a defendant without confrontation or cross-examination. Crawford, 541 U.S. at 60-68. These protections stand in firm contrast to the conditional due process rights of parolees, which can be justifiably denied— and hearsay admitted—if the Government’s good cause is sufficient under Comito.

[6] The dissent is concerned that the admission of hearsay exception evidence against a criminal defendant “is a foregone conclusion” while such evidence would be admissible in a parole revocation hearing once it is subject to a showing of “good cause.” Dissenting Op., at 4841. Hearsay evidence that is testimonial in nature, however, regardless of any exceptions, is inadmissible against a criminal defendant under Crawford. However, both testimonial and non-testimonial hearsay are admissible against a parolee, provided the hearsay fulfills Comito balancing. Moreover, the admission of hearsay evidence falling within an exception against a criminal defendant is not a foregone conclusion; all hearsay evidence is subject to Fed. R. Evid. 403 balancing (whether the evidence is more prejudicial than probative). The Federal Rules of Evidence, and such prejudicial/probative weighing, do not govern parole revocation hearings, see United States v. Walker , 117 F.3d 417, 421 (9th Cir. 1997), and therefore do not protect parolees as they do criminal defendants.

Raising an argument neither party raised in this appeal, the dissent also contends we have failed to define hearsay. See Dissenting Op., at 4840-41. California parole revocation pro-

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ceedings, however, are governed by state law whose hearsay definitions would apply. Contrary to the dissent’s characterization, we are not “mandating” applicable hearsay law, or attempting to redefine it, see Dissenting Op., at 4840, but merely ensuring that state procedures comport with federal due process per the law of this circuit.

[7] The district court, therefore, did not err in subjecting the State’s parole revocation hearings to the Comito balancing requirements.6 Comito balancing remains the framework for confrontation rights in parole revocation hearings, and does not elevate the due process rights of parolees over those of criminal defendants.

E. Corroborating hearsay with hearsay

The Special Master recommended, and the district court adopted the ruling, that “[h]earsay cannot be used to corroborate proffered hearsay unless it, too, survives a Comito balancing test.” The district court did not err in this determination.

[8] Neither Comito nor Hall offer a clear rule on whether

6The dissent finds that our upholding the application of Comito balancing to these state parole hearings is a violation of principles of federalism, as no Ninth Circuit cases have previously applied such a procedure to state procedures, but rather only to federal supervised release or probation. See Dissenting Op. at 4840. However, the Supreme Court’s ruling in Morrissey, and this court in Comito, imposed “certain minimum due process requirements” for parole revocation, revocation of probation, and revocation of supervised release, necessary to protect a parolee’s constitutional right to confrontation. Comito, 177 F.3d at 1170, 1172. The district court, in its June 2002 partial grant of summary judgment in favor of Plaintiffs, found that California’s parole revocation hearing system violated Plaintiffs’ procedural due process rights. Valdivia, 206 F. Supp. 2d at 1078. This order was not appealed. There is therefore a demonstrated constitutional violation present in the California parole revocation hearing system, and principles of federalism do not permit a state to violate what this court has already deemed to be a constitutionally-protected right.

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other hearsay evidence can be used to corroborate or support the reliability of proffered hearsay in a parole revocation hearing without being subject to a balancing test. The court in Comito specifically declined to consider the admissibility of the underlying hearsay. 177 F.3d at 1169 ( “While the additional evidence may also be subject in whole or in part to valid objections based on hearsay and Comito’s right to confrontation, those challenges are not raised before us. ”). While the court in Hall did not subject the underlying hearsay to any sort of balancing test, it did not articulate a particular rule as to whether or when a balancing test should be employed. See 419 F.3d at 987.

We affirm, therefore, not because Hall and Comito hold that “on balance . . . these courts expect corroboration to come from competent evidence, ” but because of the Supreme Court’s description in Morrissey of the due process rights of parolees.

[9] The basic question we face here is whether the government should be required to provide good cause for the absence of the declarant in the underlying hearsay statement that it seeks to use as an indicia of reliability. To satisfy due process, Morrissey requires the State to demonstrate good cause. The Court in Morrissey considered the rights described in its opinion to be a floor—the basic, minimal rights afforded to parolees by due process. Morrissey, 408 U.S. at 488-89 (“Our task is limited to deciding the minimum requirements of due process.”). Among these rights is “the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation).” Id. at 489. The good cause balancing of Comito for all hearsay fits comfortably with Morrissey’s basic minimum due process guarantees for parolees. Admitting hearsay without the good cause analysis does not.

The dissent’s concern that we have exceeded Morrissey’s “minimum requirements,” 408 U.S. at 488-89, see Dissenting

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Op. at 4843, is a concern not with our opinion, but with Comito itself, which states:

Under Morrissey, every releasee is guaranteed the right to confront and cross-examine adverse witnesses at a revocation hearing, unless the government shows good cause for not producing the witness. This right to confrontation ensures that a finding of a supervised release violation will be based on verified facts. Accordingly, in determining whether the admission of hearsay evidence violates the releasee’s right to confrontation in a particular case, the court must weigh the releasee’s interest in his constitutionally guaranteed right to confrontation against the Government’s good cause for denying it.

177 F.3d at 1170 (internal citations omitted). While Comito could be construed as going beyond the minimal requirements espoused in Morrissey, we are not bound to adhere only to minimal requirements; Comito is not inconsistent with those requirements, and no intervening precedent has arisen since Comito, either in our circuit or in the Supreme Court, to suggest otherwise.7

[10] In addition, allowing hearsay that does not pass Comito balancing to be considered in the determination of a statement’s reliability seems contrary to this Circuit’s holding in Hall. Hall did say that “long-standing exceptions to the hearsay rule that meet more demanding requirements for criminal prosecutions should satisfy the lesser standard of due process accorded the respondent in a revocation hearing. ” Hall, 419 F.3d at 987 (emphasis added). Should satisfy, however, does

7The dissent suggests our excerpting of Comito here to be “inapposite” because “the hearsay at issue was actually admitted against the parolee as evidence.” See Dissenting Op. at 7 (emphasis in original). However, in both Hall and Comito, the hearsay was admitted after application of the Comito balancing test. 177 F.3d at 1173; Hall, 419 F.3d at 986-87, 989.

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not mean “do satisfy.” The court in Hall, after making this statement, went on to subject Hall’s medical records, which fell under the business records exception to the hearsay rule (Fed. R. Evid. 803(6)), to Comito balancing, weighing “Hall’s interest in excluding hearsay evidence . . . against the government’s good cause for not producing [the witness]. ” Id. Thus, following this circuit’s example in Hall, and the reasoning of Morrissey and Comito, we believe that hearsay used to corroborate other hearsay remains subject to Comito balancing. The process nonetheless remains “flexible enough to consider evidence . . . that would not be admissible in an adversary criminal trial.” Id. (citing Morrissey, 408 U.S. at 489).

The State argues that subjecting all hearsay to this balancing test is too arduous a burden, eliminating the “flexibility” Morrissey, id., seems to embrace. Comito itself, however, allows for the admission of testimonial evidence not normally admissible in criminal trials. While Crawford restricts the use of certain unauthenticated evidence, Crawford, 541 U.S. at 61, in a parole revocation hearing, under the Comito balancing test, testimonial hearsay evidence is admissible against a parolee without the testimony of a declarant, provided the government demonstrates the requisite good cause for its inability to produce the declarant.

[11] Therefore, subjecting underlying hearsay to the Comito balancing test conforms with Morrissey and our precedent, and the district court did not err in adopting this recommendation of the Special Master on this record.

F. Morrissey and Other Obligations Imposed on the State

Other obligations imposed on the State by the March 2008 order, including professional training for Deputy Commissioners, do not contravene the Supreme Court’s determination that a hearing body need not necessarily be composed of judicial officers or lawyers. Morrissey, 408 U.S. at 486. Nor does

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the imposed disciplinary system contravene Morrissey’s directive that hearing officers remain “neutral and detached.” Id. at 489.

The March 2008 order not only encourages the neutral, detached behavior envisioned by Morrissey, but also increases the experience and training of the officers. Nor does it mandate an entire body filled with judicial officers or lawyers, which was the Court’s fear in Morrissey. Id. at 486 ( “The independent officer need not be a judicial officer.”) (emphasis added).

[12] While the State was not found to have violated the Injunction, the Special Master found that the State had not fully complied with its requirements. Where the state has not “fully complied with the court’s earlier orders, ” the district court has “ample authority to go beyond earlier orders.” Hutto v. Finney, 437 U.S. 678, 687 (1978); see also Toussaint v. McCarthy, 801 F.2d 1080, 1087 (9th Cir. 1986) ( “a federal court must order effective relief ” and a “defendant’s history of noncompliance with prior orders is a relevant factor in determining the necessary scope of an effective remedy ”). Here, in implementing a disciplinary system, the district court was merely attempting to ensure compliance with the Injunction and was therefore not limited by its earlier orders. The obligations imposed by the district court here, therefore, do not constitute error in contravention of court precedent.

G. Dismissal of the State’s Objections

[13] The district court did not err in dismissing the State’s objections to the evidence presented in the Special Master’s report. While the State has argued several potential evidentiary errors in its briefs, we address here only those for which the State has provided support as opposed to mere conjecture.

[14] Evidentiary rulings are reviewed for abuse of discretion, and should not be reversed unless, more probably than

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not, the error tainted the outcome. Harman, 211 F.3d at 1175; Gribben v. United Parcel Serv., Inc. , 528 F.3d 1166, 1172 (9th Cir. 2008); Fed. R. Evid. 103(a). In addition, we may affirm the district court’s decision to admit evidence on any basis in the record, so long as the issue has been briefed. United States v. Vizcarra-Martinez , 66 F.3d 1006, 1011 (9th Cir. 1995) (“court of appeals may affirm a decision to admit evidence on a different ground than that relied upon by the district court as long as the issue has been fully briefed on appeal, and there is sufficient basis in the record for us to address it” (internal quotation marks omitted)). The Special Master did not improperly use judicial notice, nor rely on inadmissible hearsay to support his findings.

The Special Master did not use judicial notice to bypass the process of authenticating documents on which he relied. Transcripts were submitted as evidence, but the original tapes remained in the State’s custody. For the State to challenge the authenticity of transcripts to which they have the original tapes defeats the purpose of the evidentiary rule. Plaintiffs attempted to obtain the tapes from the State; when they were declined, they resorted to transcripts. 8 Plaintiffs were not required to submit the originals for authentication in court, and the State never challenged their authenticity in court, rendering judicial notice possible. 9

Judicial notice is used to supplant authentication of “adjudicative facts”—“simply the facts of the particular case. ” Fed.

8Under Fed. R. Evid. R. 1004(3), the party is not required to present the original in court (here, the recording), “[a]t a time when an original was under the control of the party against whom offered, that party was put on notice, by the pleadings or otherwise, that the contents would be a subject of proof at the hearing, and that party does not produce the original at the hearing[.]”
9See Fed. R. Evid. 201 ( “A judicially noticed fact must be one not subject to reasonable dispute in that it is . . . capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.”).

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R. Evid. 201, Advisory Committee Notes. Stated another way, “the adjudicative facts are those to which the law is applied in the process of adjudication. They are the facts that normally go to the jury. They relate to the parties, their activities, their properties, their businesses. ” Id. (citations omitted). The authenticity of these transcripts was not challenged by either party. Thus judicial notice was proper, and the Special Master correctly admitted and relied upon the transcripts.

Additionally, the Special Master’s findings were based not on inadmissible hearsay, but rather on observations by employees and observers, statements based in personal knowledge that were not out-of-court statements. For these reasons, we affirm the district court’s March 2008 order adopting the Special Master’s report and recommendations.

II. The March 2009 Order

The district court, in its March 2009 order, denied modification of the Injunction to conform with California’s Proposition 9. While the court correctly found the State had not met its burden to show a significant change in circumstances normally necessary for modification under Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 384 (1992), such a showing may not have been necessary in light of federalism principles. The district court made no express determination that the Injunction’s procedures were necessary to remedy federal constitutional violations, and did not expressly find any aspect of the California parole revocation procedures, as modified by Proposition 9, in violation of basic constitutional rights.

[15] A district court may refuse to modify a federal injunction in light of a given state law where such a law violates federal law. See Clark v. Coye , 60 F.3d 600, 605 (9th Cir. 1995). However, merely finding that a state law conflicts with a federal injunction, such as the court found here, is insufficient to deny modification of the injunction, and “clearly constitute[s] an abuse of discretion. ” Id. (“In the case before us,

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Bill 35 was held to be inconsistent with the terms of the injunction, not with the federal law upon which the injunction was based. The district court has never concluded that Bill 35 violates federal law. It is irrelevant whether Bill 35 frustrates the broad purpose of the district court’s injunction. ”).

Further, while the Injunction was put in place to remedy claimed constitutional violations, it is not clear that these procedures were required to remedy the violation of basic constitutional rights. The district court made this clear in the hearing prior to issuing the March 2009 order:

[I]n this case I never found any of the things that now everybody is concerned about, whether they were consistent with the Constitution of the United States or not. . . . . What I found was that the parties had agreed to get rid of this lawsuit. There clearly were some procedures which were violative of the Federal Constitution, and they said, “Look, we’re going to solve this whole problem, and we, the plaintiffs, will give away some of our constitutional rights in order to gain these other rights. ” . . . . It isn’t really true that this Court made a determination that these specific procedures were required by the Federal Constitution. The Court said, “You guys are happy, I’m happy.”

While these procedures were put in place in an attempt to remedy a claimed constitutional violation, they were not necessary or required by the Constitution. There is no indication anywhere in the record that these particular procedures are necessary for the assurance of the due process rights of parolees.

[16] This circuit’s law is clear: unless a state law is found to violate a federal law, or unless the Injunction is found necessary to remedy a constitutional violation, federalism principles require the reconciliation of the state law and federal

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injunctions. See Keith v. Volpe, 118 F.3d 1386, 1393-94 (9th Cir. 1997) (finding state law prevailed, and vacating injunction, where no determination made by district court that the injunction was necessary to remedy a constitutional violation); Clark, 60 F.3d at 604 ( “[T]he scope of federal injunctive relief against an agency of state government must always be narrowly tailored to enforce federal constitutional and statutory law only. ”). Therefore, we vacate and remand the March 2009 order for the court to reconcile Proposition 9 with the Injunction.

CONCLUSION

We affirm the district court’s March 2008 order, as we are bound by Comito. Because the district court made no express determination that any aspect of the California parole revocation procedures, as modified by Proposition 9, violated constitutional rights, or that the Injunction was necessary to remedy a constitutional violation, we vacate and remand the March 2009 order for the district court to make that determination and reconcile the Injunction with California law as expressed in Proposition 9.

AFFIRMED IN PART; VACATED AND REMANDED IN PART.

Each party to bear its own costs on appeal.

NOONAN, Circuit Judge, concurring and dissenting:
I concur in Part II of the majority’s opinion. A federal court cannot disregard or encroach on state prerogatives unless it must do so to vindicate federal law or the Constitution. For this same reason, however, I dissent from the majority’s analysis in Part I. Hearsay evidence that falls within a firmly rooted hearsay exception does not offend any federal right

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held by parolees, and we therefore have no authority to impose “Comito balancing” when such evidence is proffered in parole revocation hearings conducted by a state. The majority’s contrary holding places the Ninth Circuit in conflict with the only other circuit to squarely consider this issue. See United States v. Williams , 443 F.3d 35, 45 (2d Cir. 2006). I also dissent because I see no basis to require additional “Comito balancing” where the hearsay in question serves only to corroborate the reliability of proffered hearsay evidence and is not actually admitted against the parolee.

I.

In hearings on the revocation of parole, Morrissey instructs that the “minimum requirements of due process ” include “the right to confront and cross-examine adverse witnesses. ” 408 U.S. at 488-89. This right to confrontation is applied through the Due Process Clause of the Fourteenth Amendment. It provides no greater guarantee than that afforded to criminal defendants under the Sixth Amendment. See, e.g., Gagnon v. Scarpelli, 411 U.S. 778, 782 n.5 (1973); Morrissey, 408 U.S. at 489; United States v. Simmons, 812 F.2d 561, 564 (9th Cir. 1987). The Sixth Amendment, in turn, does not enact the hearsay rule, nor is it offended by evidence that falls within a firmly rooted hearsay exception. As the Supreme Court explained:

We have allowed the admission of statements falling within a firmly rooted hearsay exception since the Court’s recognition in Mattox v. United States , 156 U.S. 237 (1895), that the Framers of the Sixth Amendment “obviously intended to . . . respec[t] ” certain unquestionable rules of evidence in drafting the Confrontation Clause. Justice Brown, writing for the Court in that case, did not question the wisdom of excluding deposition testimony, ex parte affidavits and their equivalents. But he reasoned that an unduly strict and “technical” reading of the Clause

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would have the effect of excluding other hearsay evidence, such as dying declarations, whose admissibility neither the Framers nor anyone else 100 years later “would have [had] the hardihood . . . to question.”

Lilly v. Virginia, 527 U.S. 116, 125-26 (1999) (citations omitted) (alterations and ellipses in original); see Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2539 (2009) (observing that most hearsay exceptions do not implicate a criminal defendant’s right to confrontation because they “cover[ ] statements that by their nature [are] not testimonial—for example, business records or statements in furtherance of a conspiracy” (quoting Crawford v. Washington , 541 U.S. 36, 56 (2004))).

By requiring “Comito balancing” where no federal confrontation right is infringed, the majority recedes from the principles of federalism espoused in Part II of its opinion. It imposes on the state a procedure crafted by the Ninth Circuit that has heretofore applied only to the revocation of federal supervised release or probation, not the revocation of state parole. See Hall, 419 F.3d at 982; Comito, 177 F.3d at 1167; United States v. Walker , 117 F.3d 417, 418-19 (9th Cir. 1997); United States v. Martin , 984 F.2d 308, 309 (9th Cir. 1993); Simmons, 812 F.2d at 562-63.

The majority requires this procedure whenever the state relies on “hearsay” evidence, yet its opinion does not purport to define this now critical term. In the federal system, the term “hearsay” expressly excludes, inter alia, statements by coconspirators or admissions by a party to the proceeding. See Fed. R. Evid. 801(d)(1), (2); Hall, 419 F.3d at 986. But under California law, these same statements are termed “hearsay” and are admissible only under “hearsay exceptions.” See Cal. Evid. Code §§ 1200-01, 1220, 1223. Which definition of “hearsay” does the majority mandate in California’s parole proceedings? I presume we will be called upon to answer this

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question—and others like it—in due course. Contra Mor-
rissey, 408 U.S. at 488 ( “We cannot write a code of procedure; that is the responsibility of each State. ”).1

By demanding that the state establish “good cause” to rely on business records, excited utterances, and the like, the majority expands the confrontation rights of parolees beyond those held by criminal defendants. Contra id. at 489; Simmons, 812 F.2d at 564. The majority attempts to justify this expansion by noting that—unlike in criminal trials—the state can always trump parolees’ confrontation rights, even if no firmly rooted hearsay exception applies. See Maj. Op. 4829. But it is quite likely that most hearsay evidence offered in parole hearings will fall under some firmly rooted hearsay exception. See generally, e.g. , United States v. Wake , 948 F.2d 1422, 1435 (5th Cir. 1991) ( “[T]here are, needless to say, numerous exceptions to hearsay not being admissible. ”). As a matter of constitutional law, the majority equips parolees to exclude such evidence if the state cannot demonstrate “good cause,” yet the admissibility of this same evidence against criminal defendants is a foregone conclusion. 2

The majority braces its holding by noting that parolees will still lack many of the other rights enjoyed by criminal defendants, such as the right to a jury and proof beyond a reasonable doubt. See Maj. Op. 4920. But this rationale is foreign to our jurisprudence. We cannot retool discrete constitutional

1In my view, the type of “hearsay” evidence that raises federal due process concerns is straightforward. Because the Fourteenth Amendment confers no greater confrontation right than that afforded to criminal defendants, the state must show “good cause” only where it relies on evidence that would violate the Confrontation Clause in a criminal proceeding.
2The majority posits that certain rules of evidence, such as Rule 403 of the Federal Rules of Evidence and its state analogues, may help to alleviate this disparity. See Maj. Op. 4829. I decline to rely on legislative enactments and the discretion of trial judges to offset the asymmetry that the majority injects into the Constitution.

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guarantees so long as the total quantum of “due process” afforded to parolees will not exceed that of criminal defendants. Like parolees, juveniles in delinquency proceedings have no right to a jury trial, see McKeiver v. Pennsylvania , 403 U.S. 528, 545 (1971), yet we are not empowered to enhance juveniles’ confrontation rights, raise the burden of proof, or demand greater effectiveness from their appointed attorneys.

The majority asserts that its decision is compelled by the “law of this circuit, ” rejecting the Second Circuit’s contrary views in a footnote. Maj. Op. 4826; id. at 4828 n.4. Yet our prior caselaw involved federal probationers challenging evidence that would be inadmissable against criminal defendants. These precedents do not dictate our decision in a case involving state parolees disputing evidence “whose admissibility neither the Framers nor anyone else 100 years later ‘would have [had] the hardihood . . . to question.’ ” Lilly, 527 U.S. at 126 (alteration and ellipses in original).

Furthermore, our most recent decision in Hall strongly supports the approach taken by the Second Circuit. Compare United States v. Aspinall , 389 F.3d 332, 344 (2d Cir. 2004) (“[T]he [due-process] balancing analysis need not be made where the proffered out-of-court statement is admissible under an established exception to the hearsay rule. ”), with Hall, 419 F.3d at 987 ( “[L]ong-standing exceptions to the hearsay rule . . . should satisfy the lesser standard of due process accorded the respondent in a revocation proceeding. ”). Indeed, the Hall court favorably cited the same line of Second Circuit precedents that the majority today rejects out of hand. See Hall, 419 F.3d at 986 (citing Aspinall, 389 F.3d at 342). The majority’s headlong decision to create a circuit split is both unpersuasive and unnecessary.

II.

To apply its prescribed “balancing test,” the Comito court instructed decisionmakers to consider “the accuracy and reli-

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ability of the proffered [hearsay] evidence, ” and advised that the greater the reliability of the proffered evidence, the lesser a respondent’s interest “in testing it by exercising his right to confrontation.” See 177 F.3d at 1171. Today, the majority holds that when hearsay is considered solely to evaluate the reliability of proffered hearsay evidence, it too must be independently subjected to “Comito balancing.” To support its holding, the majority excerpts at length from our decisions in Comito and Hall, yet in each instance the hearsay at issue was actually admitted against the parolee as evidence; it was not used solely to assess the reliability of hearsay evidence proffered for admission. See Maj. Op. 4832-33. The majority’s excerpts are inapposite.

It is well-established, moreover, that trial judges may routinely consider inadmissible evidence to evaluate the competence of evidence actually proffered for admission. See, e.g., Fed. R. Evid. 104(a). No decision by the Supreme Court or the Ninth Circuit has found this practice to contravene the minimum requirements of due process or to require additional procedural safeguards. By requiring such safeguards in parole revocation hearings, the majority departs from Supreme Court precedent and exceeds our limited authority to intervene in the criminal justice system of the fifty states. The majority declares: “[W]e are not bound to adhere only to minimal requirements [of due process]. ” Maj. Op. 4831. The Supreme Court has stated: “Our task is limited to deciding the minimum requirements of due process. ” Morrissey, 408 U.S. at 488-89.

 
 Case 2:94-cv-00671-LKK-GGH Document 1616 Filed 12/02/10 Page 1 of 5

1

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

8

EASTERN DISTRICT OF CALIFORNIA

9

10 JERRY VALDIVIA, ALFRED YANCY, and HOSSIE WELCH, on their own
11 behalf and on behalf of the class of all persons similarly situated,
12 Plaintiffs,
13 v.
14 ARNOLD SCHWARZENEGGER, Governor of
15 the State of California, et al.,

NO. CIV. S-94-671 LKK/GGH O R D E R

16

Defendants.

/

17

18

The court HEREBY FINDS that defendants have demonstrated

19 substantial compliance with the following requirements:

20 • All provisions of the Stipulation and Order Regarding

21

Remedial Sanctions, dated April 4, 2007; and

22 • The return to custody assessment step of the revocation

23

process for all facilities, including Los Angeles County

24

Jail.

25 These requirements will therefore no longer be a primary focus

26 of Plaintiffs' or the Special Master's monitoring unless they

1

Case 2:94-cv-00671-LKK-GGH Document 1616 Filed 12/02/10 Page 2 of 5

1 are inextricably linked with review of the hearing process, the

2 remedial sanctions obligations of the Permanent Injunction, or

3 arise in the course of investigating an individual parolee's

4 situation. These items will remain in this status unless and

5 until it comes to the parties’ or the Special Master’s attention

6 that there has been a significant decline in compliance. To

7 allow for such attention, defendants SHALL report the status of

8 these requirements to all parties every six months, beginning on

9 July 8, 2011.

10

The court FURTHER FINDS that defendants are in violation of

11 this Court's November 13, 2006 Order concerning information

12 system changes. For the foregoing reasons, the court ORDERS as

13 follows:

14 1. Defendants must conduct a comprehensive review of the

15

integrity of the data in RSTS and how it is displayed in

16

reports. This will include reviewing the RSTS coding to

17

identify precisely how the data is being defined, the

18

assumptions on which the system operates, and how each

19

report is collecting, categorizing, and reporting data,

20

including which populations are included and excluded from

21

each report and according to what variables. This review

22

shall be led by the Office of Audits and Court Compliance

23

and the Board of Parole Hearings, and must be completed

24

within 90 days of this Order.

25

a. The results of this review must be recorded in detail,

26

written in language meaningful to non-technical

2

Case 2:94-cv-00671-LKK-GGH Document 1616 Filed 12/02/10 Page 3 of 5

1

professionals, and provided to the Special Master

2

within 120 days of this Order.

3 2. Within 120 days of this Order, Defendants shall execute an

4

external contract to ensure that adequate ongoing technical

5

support is available for RSTS.

6 3. Within 180 days of this Order, Defendants must complete a

7

comparative analysis to determine whether RSTS can be

8

revised in a timely fashion to meet Defendants' obligations

9

to demonstrate compliance with the various components of

10

the Permanent Injunction, whether the relevant portion of

11

the anticipated replacement information system ("SOMS") can

12

fulfill this obligation, or whether another system is

13

needed.

14 4. Defendants must produce a plan to address any data

15

integrity issues identified in the review described in

16

requirement #1, and to complete the creation of, or changes

17

to, the 40 reports previously identified through the

18

efforts of the RSTS user project manager workgroup and the

19

Special Master.

20

a. To the extent that Defendants' comparative analysis

21

determines that another system is preferred, this plan

22

must identify with specificity the intended

23

replacement system, the steps necessary to implement

24

it, the strategies for obtaining funding, and feasible

25

timelines for implementing it expeditiously.

26 ////

3

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 5. 19 20 21 22 23 24 6. 25 26

b. The plan must include feasible timelines for completing these report changes on a regular schedule.
c. The legends for each report must be updated to reflect the more detailed information generated under requirement #1 above as they are built or revised.
d. The plan must be submitted to the Special Master within 240 days of this Order.
e. To the extent the intended solutions do not resolve the problems, Defendants will continue to work on solutions until the Special Master determines that the problems are addressed.
f. If other substantial issues surface with the accuracy, completeness, and utility of RSTS reports, Defendants will amend the plan to include the plans for addressing the newly identified issues within 15 days of the Special Master or Defendants discovering those issues.
In the course of designing the new reports and changes described herein, Defendants will augment their effort with routine input from representatives of the affected divisions who are currently using RSTS in daily field operations, representatives of their management, and CalPAP. Defendants will complete the remedies for any data integrity problems, new reports, and report changes, on the schedule they set forth in their plan.

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1

The court NOTES that the parties discussed a potential

2 dispute related to the Ninth Report. Plaintiffs and defendants

3 do not seek any orders or changes in recommendation due to this

4 potential dispute. If this dispute becomes relevant, plaintiffs

5 shall file a motion before the court.

6

IT IS SO ORDERED.

7

DATED: December 1, 2010.

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Case 2:94-cv-00671-LKK-GGH Document 1616-1 Filed 12/02/10 Page 1 of 67
IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

JERRY VALDIVIA, et al., Plaintiffs, vs.
ARNOLD SCHWARZENEGGER, et al., Defendants.
_____________________________________/

No. CIV S-94-671 LKK/GGH

NINTH REPORT OF THE SPECIAL MASTER ON THE STATUS OF
CONDITIONS OF THE REMEDIAL ORDER
Background
On May 2, 1994, the lawsuit now known as Valdivia vs. Schwarzenegger was filed. On July 23, 2003, the Court ordered th e Defendants to subm it a rem edial plan consistent with the rights provided by Morrissey v. Brewer, and the Stipulated Order for Permanent Injunctive Relief (“Perm anent Injunction”) entered on March 8, 2004 memorialized the ordered plan.
In December 2005 and January 2006, the Office of t he Special Master was established. The Mastership has filed eight reports in this action, noting progress and deficiencies in compliance with this Court’s orders.

Case 2:94-cv-00671-LKK-GGH Document 1616-1 Filed 12/02/10 Page 2 of 67
Issues requiring further court orders to remedy – resulting either from the Master’s reports, Plaintiffs’ motions, or the parties requesting dis pute resolution through a fact-finding hearing – appear below. None has been fully satisfied to date. These were:
• remedial sanctions (June 2005 and April 2007) • improvements to Defendants’ information system (November 2006) • establishment of internal oversight mechanisms (November 2006) • due process for parolees who appear too mentally ill to participa te in
revocation proceedings (November 2007) • preserving confrontation rights consis tent with curren t case law (Ma rch
2008) • timely access to inpatient psych iatric hospitalization, and psychiatric
evaluation pursuant to California We lfare and Institutions Code § 5150 (August 2008)
The October 2008 Special Master Report also recommended that Defendants: 1. Address the practice of Deputy Co mmissioners failing to expressly consider and m ake findings conc erning probable cause during probable cause hearings 2. Investigate the causes of myriad deficiencies in revocation proceedings at Los Angeles County Jail and consistently work toward remedying them 3. Pay strict attention to the requirement to maintain staffing levels sufficient to meet all obligations of the Permanent Injunction 4. Investigate the cause for delay in transfer of parolees from jails an d institutions to community-based ICDTP programs”
Since entry of the Per manent Injunction, there have also been orders concerning designating information as confidential; parolee attorney access to information in clients’ field files, witness contact information, and m ental health information; interstate parolees; and civil addicts. Orders concerning a challenge to the Victim s’ Rights and
2

Case 2:94-cv-00671-LKK-GGH Document 1616-1 Filed 12/02/10 Page 3 of 67
Protection Act of 2008, which si gnificantly alters the terms of the Permanent Injunction, have been reversed and remanded to this Court.
Beginning with the Seventh Report, the Sp ecial Master began to f ind items in substantial compliance. Detailed below, these included four evidentiary issues, a step in the revocation process, and m ost aspects of the April 4, 2007 Stipulation and Order Regarding Remedial Sanctions.
For more detail concerning the litigation history of this action, please see the prior reports of the Special Master.
Special Master Activities
During this Round, the Special Master vi sited jail-based and comm unity-based ICDTPs in Sacramento, Galt. Elk Grove, St ockton, French Camp, San Diego, and Chula Vista. The Special Master al so visited parole offices in Stockton, San D iego, and Chula Vista, interviewing staff involved in the Valdivia process including parole officers, parole supervisors, clerical staff, and District Adm inistrators. The team also observed hearings at Robert Presley Detention Center.
The team met on several o ccasions with a variety of CDCR executive s taff members personally and telephonically, and was briefed on a variety of initiatives including parole reform, non-revocable parole, reentry courts, and information systems.
The team worked with the parties to de velop, implement and refine system atic oversight mechanisms and a joint monitoring process, including multiple site visits at Richard J. Donovan Correctional Facility and Santa Rita Count y Jail. The team assisted the parties in negotia ting substantial compliance definitions and developing more
3

Case 2:94-cv-00671-LKK-GGH Document 1616-1 Filed 12/02/10 Page 4 of 67
effective information systems. Team members also observed the Valdivia task force, the information systems work group, and trainings for Board and Paroles Division staff.
Scope and Approach for This Report
In contrast to othe r recent reports, this repor t will not discuss every area of compliance. Rather, it focuses on those compliance issues that can b est be described as either (1) the high impact issues that must be addressed before compliance in the lawsuit can be cons idered, or (2) thos e requirements nearing compliance that, with a concerted effort, Defendants could accom plish in the short term. The Special Master stro ngly encourages Defendants to concentrate on the issues emphasized in this report.
Following that discussion, this report comments on requirements previously found in substantial compliance, and concludes with recommendations for court orders.
This report discusses obse rvations and activities sp anning March through August 2010, collectively referred to as “the Round.” Where data is em ployed, it is data the Special Master received during that period, commonly covering February 1 through July 31, 2010, or a subset of that period, depending on data availability.
This report also uses som e language conve ntions. To the extent it characterizes progress and compliance, these are often disc ussed separately, indicating that movement is significant, even where results may be less evident. In assessing either, this report uses the terms “substantial com pliance,” “good,” “adequate,” and “poor.” “Good” performance is a high bar, and it takes sustained Rounds at that level to reach “substantial compliance.” When discussing problem s, descriptors progress in severity from “minor” to “substantial” to “s ignificant,” and then strong er terms are used for issues of greatest concern.
4

Case 2:94-cv-00671-LKK-GGH Document 1616-1 Filed 12/02/10 Page 5 of 67
References to the Special Master’s activities frequently include the actions of one or more members of his team. The term “monitoring reports” refers collectively to reports generated by Plaintiffs’ monitoring and by Defendants’ self-monitoring, unless otherwise specified.
Overview
Defendants have certainly m ade achievements during each Round, including this one. Some will be c ited herein, while othe rs will not. Rather, this report concentrates on critical features that remain to be addr essed before Defendants can show substantial compliance with the Valdivia orders. In broad terms, Defendants must:
o Demonstrate that the system provides due process o Establish the reliability of information systems that demonstrate
compliance o Demonstrate that the key features of the Permanent Injunction and
subsequent orders are met to an adequate degree o Provide indications that CDCR will sustain a system providing due
process without court oversight
Demonstrating that the system provides due process Of course, the central purpose of the Perm anent Injunction is to as sure the provision of due process in revocation actions. In order to satisfy the obligation to provide due process, Defendants have not yet, and m ust, demonstrate that each of the following components of due process consistently occurs:
o Notice gives adequate information in sufficient time to prepare a defense. o Defendants have jurisdiction to hold the parolees facing revocation1
5

Case 2:94-cv-00671-LKK-GGH Document 1616-1 Filed 12/02/10 Page 6 of 67
o Probable cause is assessed (including whether there is evidence for each element of the violation, if argued) and a factual basis is given for the findings.
• For cases continuing to revocation hearing, hearing officers determine whether there is probable cause to continue the hold or decide to release the parolee until the revocation hearing, much like determining whether the parolee could be released on his own recognizance.
o Parolees are allowed to subpoena and present evidence, to testify, and to cross-examine adverse witnesses (subject to certain limits).
o Probable cause and revocation hearings are held within a reasonable time. o Parolees receive a complete written record, including the factual basis for
findings and rulings on all objections made
Due process, of course, entails more than these practices. Defendants are likely to be able to demonstrate they provide these aspects of due process: (1) evidence to be used against the accused is provided in time to assert a defe nse, (2) hearings are conducted by neutral and detached officers, (3) waivers and disposition offers are taken knowingly and without coercion, and (4) reasonable care is taken to ensure parolees understand the proceedings.
As a matter of fairness, the Special Master also encourages CDCR to consider providing remedies when the system failed and the parolee was harmed.
Establish the reliability of information systems that demonstrate compliance Longstanding issues of incom plete reporting from Defendants’ main revocationrelated information system have gone unaddr essed; indeed, with each su ccessive Round,
6

Case 2:94-cv-00671-LKK-GGH Document 1616-1 Filed 12/02/10 Page 7 of 67
apparent problems increase and questions of data accuracy h ave more recently surfaced. There is no clear plan or demonstrated will to remedy these issues.
Likewise, the Permanent Injunction requires Defendants to ensure that parolees receive effective communication throughout the revocation process, but the information system for tracking the need for these measures and their provision has consistently been found to be flawed and must be addressed.
Demonstrate that the key features of the Permanent Injunction and subsequent orders are met to an adequate degree At a minimum, Defendants must:
• Identify items CDCR believes are in substantial compliance, compile supporting data and narrative, and present them to the Special Master for consideration
• Sustain work toward definitions of adequacy • Sustain work toward identifying and resolving the highest priority
disputed policy issues (i.e., those with significant impact on due process, Permanent Injunction requirements, or the sustainability of the system)
Provide indications that CDCR will sustain a system providing due process without court oversight Key indicators of this ability would include:
• Independently identifying major compliance issues and initiating resolutions
• Demonstrating that the system of internal oversight results in effective solutions for the revocation process problems identified
• Memorializing key policies and procedures in regulation • Performance management systems that are integrated into normal
operating procedures
7

Case 2:94-cv-00671-LKK-GGH Document 1616-1 Filed 12/02/10 Page 8 of 67
In the sec tions that f ollow, the Special Mas ter will discu ss these issue s in m ore detail and in the context of specific Permanent Injunction requirements.
High impact issues that must be addressed before compliance in the lawsuit can be considered
Notice of Charges To provide due process, CDCR must pr ovide notice of the alleg ations to the parolee, giving adequate infor mation in su fficient time to prepare a defense. The Permanent Injunction requirement reads:
If the hold is continu ed, the parolee will be served actual notice of rights, with a factual summary and written notice of rights, within 3 business days (¶11(b)(iii))
Factual summary: The frequency with which the Charge Report (“1502b”) does not communicate the basis for the charges is troubling. The Special Master reviewed 205 charge reports, evenly distributed across all regions, and found that 30% in the study did not give basic facts about the con duct alleged for som e or all of the charges. Fo r the parole units associated with Los Angeles and Santa Rita county jails, the failure rate for this basic notice was 47%.2
Defendants note the dif ficulty in meeting Valdivia’s mandate to serve parolees notice in a short time, when Defendants are relying on other arresting agencies to provide the substance of the cha rge report. This is undoubtedly true. In the Mastership’s study, however, half of the problematic charge reports were finalized immediately, forgoing the time allowed to gather this very information. It is not reasonable not to give parolees fair warning to prepare a defense without m ore effort to gather the basic facts about the conduct alleged.
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Monitoring reports have exam ined this issue long-term . In the current Round, they collectively found at least 21% of 368 charge repo rts had insufficient factual summaries, and some reviewers thought the rate was higher.3
Charges after notice: Additionally, there is an issue rais ed by serving a parolee notice of his or her charges and adding char ges afterward. One dispute has centered on whether notice is sufficient when the added charges are co ntained in the m aterials the attorney receives at ap pointment. Plaintiffs have contended that the right to notice belongs to the parolee, not the attorney; whether addi ng charges in this fashion compromises the ability to prepare a defense is likely situa tion-specific – particularly based on whether the behavior underlying the new charges was already described in the original notice – sinc e attorneys typically meet the parolees the day before the probable cause hearing. The Special Master has not been made aware of any significant incidence of charges being added later than the attorney receiving the materials.
The need to add charges will certainly arise when reports from another arresting agency become available only after notice has been served. However, the parties measured the charges that the Paroles Division knew, or should have known based on a file review, with the expecta tion that these must be inclu ded in the origin al notice. Monitoring reports reviewed 383 charge re ports with this in m ind, and found that 14% added charges based on information that pa role agents had available to them as of the original notice and should have been included.4
Defendants have been aware of deficient charge reports as a system wide problem going back at least to early 2007. 5 They have attem pted to address this issue through
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trainings and self-m onitoring. As these study numbers demonstra te, greater efforts are needed in the interest of fundamental fairness.
Timeliness: Defendants’ inform ation system shows a particularly high rate of data integrity flaws at the notice s ervice step – the summ aries often do not m atch the underlying material, for example – and all data sources omit significant subsets of cases.6 The sources suggest that tim eliness may be as high as 96% , with a substantial number completed within an addition al day. Howe ver, with the known data flaws and the uncertainties, while the notice m ay be timely, the accuracy of the infor mation cannot be discerned with any confidence.
Jurisdiction One of the core tenets of due process is ensuring that there is jurisdiction to hold the parolees facing revocation.7 Defendants train hearing officers to consider this issue at the beginning of hearings. It is the Special Master’s impression that jurisdiction is generally handled well. A recen t development carries th e potential of a jurisdiction problem, and developing more information would be worthwhile to demonstrate that this potential problem is not actually compromising due process for some parolees. Shortly before the Round, California la w went into eff ect instituting “NonRevocable Parole,”8 a status in which a group of peopl e previously on parole, defined as lower risk, are no longer supe rvised or subject to parole revocation, but are subject to a few requirements, most importantly warrantless search. Paroles Division, the Board, and D ivision of Adult Institutions adopted m ajor procedural changes bef ore and during this Round to im plement this law. Parole staff reestablished caseloads, and all divisions negotiated, communicat ed and carried out
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extensive policies. Substantial staff resources were d evoted to determining the implications of the la w and policies, and to scre ening for eligibility the parolee population and those exiting prison.
For Valdivia purposes, the key question is whet her the Board has jurisdiction to conduct revocation actions if parolees allege that they qualify for Non-Revocable Parole. This question has arisen in two way s. Initially, there we re parolees who were h eld for possible revocation and had not yet been sc reened for eligibility for this s tatus. Defendants’ policy is to postpone the pr obable cause hearing and arrange for an expedited screening; depending on the results, the parolee would return to probable cause hearing in a few days or woul d be released. The Special M aster observed this occurring during field visits and has not been informed of any insta nces of failure to f ollow this policy. While the Special Master has not conduc ted a broad review, it is his im pression that this po licy is b eing carried out well a nd that occurrences have been rare in re cent months.9
Allegations that the screen ing results were incorrect, and that the parolee should not be subject to any revocations, are the s econd source of challe nges. Defendants treat all other ju risdictional challenges as a th reshold question and do not proceed with a hearing until it is answered. In this case, however, Defendants’ policy is to proceed with the hearing and, if the parolee is returned to custody, he or she is instructed to address the concern through the grievance process. 10 The principal ra tionale offered is that hear ing officers do not have available at the hearing the information necessary to m ake a good judgment.
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There is an expedited screening proce ss for those who reach hearing without screening. Defendants do not, however, use that mechanism where the parolee is raising a challenge to the accu racy of the determ ination. The ro utine grievance m echanism requires decisions within as little as 10 work ing days or up to 60 working days if the parolee takes additional grievance appeals. There is an em ergency grievance procedure available, which is designed to reach a deci sion within five working days, or ten if appealed.11
Defendants report there were 537 grievan ces filed related to Non-Revocable Parole, of which 39 were granted at least in part. 12 The Special Master and parties do not currently know whether parolees and thei r attorneys are aware of the em ergency grievance system and have been effective in using it.
Because of the sen sitive nature of th e potential of holding in custody those over whom Defendants have no jurisdiction, this issue bears w atching. The parties m ight continue to address their efforts to ensuring the greatest likelihood that any m eritorious claims can be addressed expeditiously.
Probable Cause Hearings Probable cause hearings arguably are the core function protecting due process in the revocation process. To de liver on that prom ise, probable cause must be asses sed -including whether there is evid ence for each element of the violati on, if argued -- and a factual basis must be given for the findings. If the cases proceed to revocation hearing the probable cause hearing must also include an assessment of probable cause to continue the hold or to decide to rel ease the parolee until the re vocation hearing, m uch like determining whether the parolee could be released on his or her own recognizance.
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Defendants have begun the im portant step of reviewing practice during probable cause hearings to identify any needs for tr aining and support, and to ensure that due process is delivered.13 This is necessary in that, to date, a wide range of hearing practices have been observed – in addition to str ong practice among some hearing officers, there have been others whose response to legal ar guments was unsophisticated or who did not entertain probable cause argument. During those times, the risk is hig h that due p rocess was not provided, and CDCR has an obligation to address and reduce this risk.
The Board designed an excellent tool, a pplying well-defined cr iteria, to assis t supervisors in a thorough review of the key components of a fair hearing. 14 Supervisor observations are in the early stages, with reviews involving 40 de puty commissioners – about 1/3 of the relevant cadre -- for a total of 1% of the hearings held during the three months of review. Supervisors found an im pressive 93% of the cases reviewed to have met CDCR standards.15
The Special Master also conducted a study of 200 hearing records. As discussed infra in Revocation Hearings, Morrissey requires a de tailed written re cord so tha t the parolee is apprised of the factual basis for finding probable cause to detain him or her. Of course, the hearing reco rd also giv es a pict ure of the due process provided during the hearing to those who were not present. The study did not assess every hearing requirement; rather, it c oncentrated on core due process prac tices only. In th e Special Master’s review, 81% of the sample described in factual terms the basis fo r their findings, a good foundation for the overall system to build upon.16
Defendants should continue with the excellent review practice they have initiated, and bring attention to these issues that they and the Special Master are identifying.
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Providing evidence: An additional component of due process bears comment. As described in the Permanent Injunction:
At the tim e of appointm ent, counsel shall be provided with all nonconfidential reports and docum ents the state intends to rely upon; if th e state learns of additional evidence, it shall be produced as soon as practicable before the hearing (¶ 14)
CalPAP documented 52 objections on thes e grounds, affecting about 1% of the revocation hearings but n early double the ra te of the m ost recent two Rounds. 17 The Special Master takes no position on the validity of these ob jections, but the increasing number is a signal to Pa roles Division to review more closely the practices of providing evidence, and for the Board to b e mindful of this issue, and whether hearing officers are following policy when it arises, during supervisory reviews of probable cause hearings.
Reasonable time to hearing To promote this due process requirement, the Permanent Injunction reads: Probable cause hearings shall be held no later than 10 business days after service of charges and rights (¶11(d))
Defendants must bring attention to measures not routinely reviewed that indicate there are lengthy times to hearing that are not being addressed.
In all reports of their compliance, Defendants cite a revocation database report titled Closed Case Summary – Valdivia Timeliness Rules. After painstaking review, it appears that this report omits about 17% of the relevant data at this process step.
Correct analysis must include the cases contained in Closed Case Summary – Valdivia Timeliness Rules, including cases closed at optional waiver review; the actual time to hearing for postponed cases; extradition cases, and open cases. The information
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system must be improved to make this possible; in its present state, the best it allows is to

spot examples of problems to investigate.

Postponements: Although the timeliness of many probable cause hearings has

been high-performing long-term, the rate is overstated by an anomaly of programming.

For any hearing postponed, the information system treats the case as timely in perpetuity, regardless of when the hearing is actually held.18 For probable cause hearings, this could affect as much as 10% of the hearings.19

The state of the information system does not permit a comprehensive assessment

of the timing of postponed hearings, but indicia of problems easily surface. After a few

days of examination, it was not difficult to identify 345 probable cause hearings that

appeared unreasonably delayed; at least an equal number not yet examined hold that

same potential.20

Probable cause hearings held more than 1 week21

244

later and as much as 17 days later

Parolee time waivers heard later than the amount

101

of time waived22

While there are a number of factors that r ender it im possible to ide ntify all problem cases in the space of a Special Master’s review period, and to translate the issues spotted into reliable percentages, the point remains: this is an indication that Defendants must closely examine postponements and time waivers for very lengthy cases that do not meet Defendants’ obligations under the Perm anent Injunction. Upon exam ination, Defendants may determine that som e number of apparently delayed cases are, in fact, reasonably explained. However, accurately re porting the timeliness of these cases, their

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impact on the aggregate tim eliness numbers, and any explanations rem ain Defendants’ burden to demonstrate.
Extradition: Timeliness of probable cause hear ings for extradition cases also chronically lags behind that of the mainstream population. During this Round, 92% appeared timely; this was a re turn to pr ior levels after a precipit ous drop in the last Round. Few of the late cases were close in tim e, with some taking as much as 30 to 126 days to hearing.23
Missing cases: The information system indicates in report totals that substantial numbers of cases took p lace but are not display ed in the rep orts’ detail in the sam e way as all o ther cases. For this reason, the exis tence of these cases can b e identified but timeliness cannot be discerned for them. In this Round, it appeared this applied to 24% of the open cases at any given time.24
Optional waiver reviews: As described in earlier reports of the Special Master, a substantial number of parolees take “optional waivers” of their revocation proceedings and return to com plete them after charges in c riminal court have been determ ined. This initially involves an “optional waiver revi ew,” a proceeding much like a probable cause hearing. It appears that about 7% of the probable cause hearing population close their cases at this step. No tim eframe has been set for its com pletion. No major tim eliness issues are apparent fro m an initial review; only a handful exceeded the deadline that applies to the subsequent re vocation hearing, and a reasonable tim e to optional w aiver review has not been determined.25
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The above-described issues, taken t ogether with about 1,900 probable cause hearings the information system displays as la te,26 make it clear that D efendants must investigate and improve timeliness for probable cause hearings.
Revocation Hearings As discussed above, due process demands of revocation hearings that:
o Parolees are allowed to subpoena and present evidence, to testify, and to cross-examine adverse witnesses (subject to certain limits).
o Revocation hearings are held within a reasonable time. o Parolees receive a complete written record, including the factual basis for
findings and rulings on all objections made
To ensure that the law is applied f airly and co rrectly at CDCR hearings, a f ew core issues require heightened attention. While these generally arise at revocation hearings, some may also affect probable cause hearings; both will be discussed here.
Constitutional conditions of parole : Attorneys commonly objecte d to the constitutionality of special cond itions that pa rolees were accused of violating. W ith 90 such objections,27 Defendants would do well if Parole s Division were to review m ore closely the construction of speci al conditions to ensure that they both protect the public and comport with the law. Likewise, the Board will want to build on its training on-point to ensure that hearing officers are applying the law correctly in this regard, including the ability to decide this question at the probable cause hearing.
Confrontation rights: While Defendants have done well in allowing parolees to present evidence and to testif y, the Board has struggled with its duty concerning crossexamination of adverse witnesses. The Permanent Injunction requires that
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Hearsay evidence m ust be lim ited by parolees’ confrontation rights under controlling law. Defendants are to preserve this balance in hearings and to provide case law-based guidelines and standards. (¶24; Order, March 25, 2008)
Defendants were subject to furt her orders effective in 2008 28 to stru cture their

ability to m eet this obligation. The history of implementation is well-detailed in the

previous reports of the Speci al Master. Defendant s took more steps forward in this

Round, with further training and supervision for hearing officers.

Still, parolee defense attorneys name the handling of these objections – a lack of

understanding on the part of som e hearing officers and substantial inconsistency between

hearing officers – as a critical, top-priority concern. This concern is co nsistent with the

impressions of field supervisors and the Special Master. A good foundation is laid;

continued attention and direct guidance and are crucial, as sufficient practice will not take

hold without them.

As one of m any competing demands on supervisors, identifying the range of

practices and specific traini ng needs has been a slow e volution. In previous Rounds,

central office m anagement designed a good audit mechanism and shouldered the full

burden of the reviews. More recently, the tools were revi sed effectively and the task distributed more widely.29 These are promising steps.

The result is that supervisors are b eginning to develop the needed sense of the

practices of a large cadre of hearing offi cers; during the Round, supervisors reviewed

approximately 13% of the hearings in wh raised.30

ich a confrontation rights challenge was

As to applying this body of law correctly, m onitors and the Special Master have

observed a greater number of hearing officers gaining facility with applying the balancing

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test to the facts. The supervisors – after reviewing both hearing tapes and written records -- found that 79% of the 97 hearings reviewed met CDCR standards as to confrontation rights.31 The Special Master studied 113 written records, finding that 63% were clear, comprehensive, and accurately applied the law.32
Historically, it has been a problem that hearing officers did not include in the hearing record a significant num ber of thes e objections. CalPAP tracking indicates that this has been reduced to 3% of the total, an impressive gain.33 This may be mitigated by the large discrepancy between the total cases in the two entities’ tra cking systems;34 it is presently impossible to distinguish objections that m ay not have been entered from a programming problem that m ay not be pulli ng relevant cases into the reporting. E ven without precise num bers, it appears that hear ing officers are to be congratulated. The information system issue should be addressed so that it does not hinder dem onstrating actual practice.
All of these reviews co nfirm the impre ssions that im provement is evident an d substantially more is needed to provide due process.
When state witnesses fail to appear: The other common response to the absence of an adverse, state witness is to postpone the hearing. As regulations require providing 10 working days’ notice when su bpoenaing peace officers, any revocation h earing postponement contributes significant dela y to having a final hearing. Frequently, postponement occurs over the objection of parolee defense counsel; during this Round, 175 objections were docum ented for this reas on or other delays in providing a final hearing.35 Parolee defense counsel find this prac tice very troubling; both they, and som e written records, indicate that these choices are sometimes made when there is no known
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justification for the witness’ absence, or it is not exigent, contrary to Defendants’ policy. CDCR would do we ll to examine revocat ion hearing postponem ents for their fundamental fairness in this regard.
Written record: It is important that the parolee have a complete record of his or her probable cause and revocation hearing, particularly if he or she chooses to appeal. Morrissey notes that
The hearing officer shall have the duty of making a summary, or digest, of what occurs at the hearing in terms of the responses of the parolee and the substance of the documents or evidence given in support of parole revocation and of the parolee's position. There is wide variability in the clarity and completeness of probable cause and revocation hearing records. Predictably, the Board will need to improve the inclusion of factual bases for good cause findings, just as with probable cause hearing records. Moreover, there is a serious gap in hearing officers recording objections. Of the 619 objections, other than confrontation rights, that CalPAP recorded, 28% were not found in the hearing records.36 It may be beneficial for Defendants to apply the methods that brought about improved recording of Comito objections.
Timeliness: Timely hearings are also an element of due process and of the Permanent Injunction, which requires Defendants to provide a:
Final hearing within 35 days of the placement of the parole hold (¶¶11(b)(iv), 23)
By the time cases reach the revocation hearing, there are several divergent but predictable paths that subsets of cases have taken. For this reason, when Defendants depend on Closed Case Summ ary – Valdivia Timeliness Rules to dem onstrate timeliness
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compliance, this omits a significant portion of the relevant data. Other key reports must be included in the analy sis because, while Valdivia Timeliness Rules shows only 77 late hearings, examining the other reports reveals that lateness is likely more than five times that much.
Optional waivers: Activated optional waivers that proceed to revocation hearing constitute about 13% of th e revocation hearings. In this population, at least 15% exceeded the assigned deadline, 35 days af ter the waiver was activate d.37 The longest times to hearing were a n additional one to two m onths, an unacceptable length of time absent explanation. In addition to those known to exceed the deadline, twice as many showed evident data entry or p rogramming errors that m ake it impossible for Defendants to demonstrate timeliness.
Postponements: As noted, revocation hearing postponements require two weeks for rescheduling in m ost cases. The infor mation systems postponement reports do not distinguish probable cause hearings from revocation hearings. At least 221 cases significantly exceed the regulat ory minimum for rescheduling, 38 which arguably is unreasonable absent explanation. Indeed, am ong these, 42 were postponed for 30 days or more, w ithout explanation apparent from the reason code chosen. This does not include serial two-week postponem ents, which have also been observed but are not readily identifiable as the data is currently reported.
Not in custody: Defendants allow some parolees to remain in the community, or to be released to it, pending revocation hearing. Defendants’ po licy calls f or these hearings normally to be held within 35 days of a hold or discovery of the behavior at issue. In recognition of the lessened liberty interest, the parties have inform ally accepted
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hearings up to 60 days from those dates as within a reasonable range. About 7% of these hearings exceeded even that dead line, with most being held two weeks to one m onth later.39
Extradition, mainstream open and closed ca ses: Timeliness for these three populations – the others to take into account – looks very strong, and has over the long term.
With these exam ples totaling 415 problem atic cases, and more possible in the unexamined reports, there is indication that De fendants must routinely review the set of reports described, and address or explain the apparent problem s, before they can demonstrate timeliness at this step.
Revocation Extension Proceedings (¶31(b)) As noted in each of the Special Master ’s reports, revocatio n extension affects a small population and is consistently the lo west-performing requirement in term s of timeliness. Reviewers have undertaken only a very limited analysis of the due process provided therein until this threshold issue has been addressed. Trem endous amounts of Defendants’ staff ti me have been devoted to these 100 cases per m onth, with lim ited results. The seemingly intractable difficulty suggests that Plaintiffs’ monitoring and other external measures will be extensive on this topic in future. Revocation extension is designed with a number of steps and tim elines; eight of them are measured in Defendants’ revocation database. Timely cases in the pre-hearing steps are generally in the m inority; compliance is shown ranging from 21% to 70%.
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Probable cause hearings and revocation hearings meet their deadlines at rates of 65% and 74%, respectively.40
Each of these represen ts incremental improvement from the preceding period. This is p articularly true in the two institutions where the joint m onitoring team has concentrated its efforts. 41 In contrast, however, all of th ese same steps in th e regular revocation hearing process are shown generally at 90% or higher.
Monitoring reports reveal lack of tim eliness in other steps; inaccu rate, internally conflicting, and incom plete documentation in evidentiary packets; insufficient evidence provided; possible failures to provide reasonable accommoda tions; erratic use of the tracking mechanism; and problems with maintaining the taped hearing records.42
While there are indic ations of inaccuracies in the da ta reports, clearly they indicate that timeliness compliance is far below an accep table level. Additionally, as noted, the parties have not yet begun in any substantial w ay to determ ine whether due process is delivered during these proceedings.
o There is poor compliance on this requirement.
Information Systems (Order, November 13, 2006) In the absen ce of a reas onably complete information system with demonstra ted reliability, Defendants cannot hop e to h ave the Court’s confidence that the tim eliness requirements of the Permanent Injunction are being met. To that end, this Court ordered D efendants to com plete, by May 12, 2008, information system application changes to improve their ability to m anage revocation proceedings and to demonstrate compliance.43 Defendants have failed to comply with this
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Order. Now alm ost two and one-half years after the Court’s deadline, Defendants’ responses demonstrate insufficient urgency to addressing the m yriad of re maining problems and insufficient recognition that they have been in violation of a Court Order for this lengthy period. Further orders are warranted at this time.
Core issues: At core, there are a few main issues. Since mid-2006, the Mastership has indicated that the practice of excluding certain populations from the m ain reports used in operations is reasonable so long as those excluded are capture d in other reports. This was the central purpose of the Nove mber 2006 Order. This has never been accomplished.
Some reports critical to this goal have never been written. Some have been written or augmented, but m ost of those changes s till produce inaccu rate or incom plete information.
In addition, over tim e, staff and the Mastership have determ ined a num ber of ways in whi ch the data display ed is inaccurate, which suggests substan tial risk that the underlying data m ay be inaccura te or unstable. Inform ation systems staff have never tested for accuracy in an y comprehensive way. Until that is done, the Court can have no confidence in the revocation data Defendants put forward.
Because of the structure of data rep orting, and som etimes inaccurate display of the data, to genuinely verify in daily operations that Valdivia requirements are being met, managers and quality assurance staff would need to review several-hundred-page repo rts to spot problem cases, adjust for incorrect display, and recalculate them by hand.44
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Trends in the problems observed : A great level of detail has already been
provided to the Court and the parties and will not be repeat ed here. Rather , a synopsis
follows.
Integrity of data • Defendants do not appear to know reliably which populations are included and
excluded in reports. The legends are generic and uninformative. Discussions of these questions tend to involve prediction with no apparent follow-up to examine the code or otherwise verify the hypotheses. No effort has been undertaken to answer these questions with certainty and comprehensively. • The difference between the subtotaled steps and the total, in some major reports, is commonly 14%. Defendants have offered anecdotal potential explanations, but the information system cannot yet demonstrate them. • A similar discrepancy exists as between the most comprehensive report and the reports meant to reflect its component parts. • With some reports, the underlying material does not match the total in the report. • Some reports import incorrect dates, resulting in incorrect measurements such as negative numbers. • The system allows some dates to operate incorrectly. The most dramatic of these is an increasing number of observed instances of the hold date differing from that in other documentation. The hold date is the foundation for nearly all of Defendants’ timeliness calculations. If it is inaccurate, or uncertain, that renders suspect all of Defendants’ timeliness numbers. • Data is adversely affected when records are corrected, resulting in false indications of late cases.
Operations unreasonable for the task of demonstrating fulfillment of the Court’s orders • Certain known populations of substantial size are not captured in any report. • Postponed cases are treated as perpetually timely if they were timely at the time of postponement, regardless of the length of time to hearing. • A large number of cases are shown in only a partial fashion. • Limited management and compliance questions can be answered. Several require extensive hand calculations to generate a meaningful answer. Staff cannot include or exclude irrelevant populations, sort by most key variables, or effectively spot many problem cases or duplicates.
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Defendants’ responses: The details of these issues have been discussed extensively for four years with staff at the Board, Office of Court Com pliance, Office of Legal Affairs, the Attorney General’s offi ce, Paroles Division, Enterprise Inform ation Services, and the previous information systems contractor. The discrepancies and needed changes were catalogued in the first eight repo rts of the Special Master, with particular emphasis in the m ost recent Round when Defendants cou ld not accoun t, in a m atter of days, for nearly 10,000 cases.
Shortly after the issuance of that Speci al Master’s report, Defendants convened a multidivision workgroup that met several times per month. This resulted in generating the document RSTS_Reports_Status May 2010.xlsx, which (1) captured all reports the workgroup identified as needing significant change and (2) set priorities among them.
This is a process that has been employed with limited effect in the past. Several of the key data integrity and reporting issues we re never identified, and there was no visible follow-through to completion on most of the issues the group did identify that concerned demonstrating compliance to the federal court.
This most recent effort also did n ot include most of the changes th e Special Master had identified multiple tim es to Defendants. Af ter incorporating the Special Master’s observations, that spreadsheet reflects 36 reports needing change and 4 reports that need to be created. 45 These principally concern popula tions substantially affecting the overall com pliance picture and not reflect ed effectively in ex isting reports. In addition, the legends for all reports need substantial work to be complete and accurate.
The Special Master recently reques ted an update on the status of the efforts to date on these 40 reports and plans for com pletion. Defendants responded that they had
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completed 2 reports and had aspirations, but no firm commitment, to complete 4 more by year’s end. There was no m ention of plans to address the rem aining 85% of the work identified.46
Some progress has been m ade since the 2006 Order and that has been detailed in previous reports of the S pecial Master. It is well past tim e for Defendants to address the remaining deficiencies detailed here, and the Special Mas ter is recomm ending further orders to accomplish that.
Disability Tracking System Permanent Injunction ¶¶13,18 An additional information system requires attention for Defendants to be able to meet their ADA and Permanent Injunction obligations to ensure effective communication throughout the revocation process. Defendants have im plemented an electr onic tracking system for disabilities and effective communication needs. This is com plemented by a series of form s, procedures, and expectations for interactiv e review at m ost steps of th e revocation process. It is intended that the results of all the se processes be reco rded in the electron ic tracking system so that this inform ation is available for any future revocation pro ceedings and to facilitate the timely provision of reasonable accommodations. As detailed in p revious reports of the Special Master and monitoring reports, despite all of these systems, there remain lapses in key information being carried forward in the elec tronic system. Def endants have not informed the Spec ial Master of any examination undertaken to determine of the scope of this issue, so it is unknown whether it is limited or more extensive.
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Additionally, the repor ts written to demonstrate provision of accommodations have never operated effectively and need attention to serve their purpose.
To be able to dem onstrate compliance as to the requirem ents concerning reasonable accommodation, Defendants must address these issues. It seem s advisable for them to undertake a comprehensive review to identif y the scope of the issues and likely causes, as well as an analys is of why the existing procedures do not seem to be as effective as necessary.
Meet periodically regarding policies, forms, and plans; submit policies and procedures to the court no later than July 1, 2004 with full implementation by July 1, 2005 (¶¶10-11(a), 11(e)) The design and im plementation of comprehensive policies has followed a rocky,
tortuous path in Valdivia. A set of policies was filed tim ely but subject to m any objections concerning adequacy and com pleteness. In the early y ears, the p arties continued to negotiate a variety of new pol icies, disputed item s, and interp retation questions that arose during implementation.
At the Special Master’s urging, in early 2008, the parties sought to identify the universe of outstanding issues requiring new policies and negotiation. That effort proceeded in fits and starts with long gaps; the most comprehensive list was generated by Plaintiffs in July 2009 and, although joint teams have recently identified an additional set of disputed items, Defendants have yet to express agreements and disagreements with the items on th at 14-month-old list. In the last week, the parties held their first meeting concerning a subset of these issues.
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In the m eantime, Defendants hav e generated, and for the most part the parties have negotiated, a small stream of policies responsive to new implementation issues, new laws, or the need for clarifi cation in the field. The Board al so undertook a major effort to review, reconcile, and clarify the body of existing policies. This undertaking has stretched out over 10 months and is not near completion, but has picked up pace recently with the introduction of excellent project management techniques.
Both projects – reconciling existing policies and negotiating a ve ry lengthy list of disputed policy items – are extensive. And the process to memorialize Valdivia processes in regulation has not yet begun, with the excep tion of special conditions of parole. These are keys to sustainability of the sys tem, maintaining its functioning through inevitable staff turnover and com peting pressures, and demonstrating to the Court that Defendants are prepared to assum e full responsibility fo r the revocation system . The Special Master encourages the parties to sustain productive effort to acco mplish these long-needed requirements.
Monitoring by Plaintiffs “as reasonably necessary” (¶25) / Internal Oversight (Order, November 13, 2006)
In the last Round, the part ies reached agreem ent on a nd initiated a pilot joint monitoring process. The proces s began with joint m onitoring tours of the Richa rd J. Donovan Correctional Facility Decentralized Revocation Unit and the Santa Rita County Jail Decentralized Revocation Unit in January 2010. In this Round, several pilot activities took place. The parties met in March to debrief the outcom es of the first joint monitoring tours and to identify lessons learned and to propose any needed changes. Corrective action plans from the first tours were worked on by the operating divisions in preparation
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for the second monitoring tours, which took place in June 2010. Parties met and debriefed the pilot project in July 2010. The m onitoring reports of the second joint tours were completed in August and September 2010.
At the March 2010 round one m onitoring tour debrief, the parties changed the goal of the project from to “help the Decentralized Revocat ion Unit an d parole offices identify ways to im prove their outcomes in the Valdivia process” to “To create a fair , legitimate and high performing revocation system.”47 This seemingly small change is symbolic of a larger ch ange that is resul ting from the process. The parties are worrying less about the m ore narrowly defined legaliti es of the case and focusing m ore on what needs to happen to create an effective and fa ir revocation process. The joint m onitoring process has its challenges, not the least of which is modifying the traditionally adversarial roles of the parties into a m ore collaborative effort to im prove processes and systems. The Special Master believes the joint m onitoring process is resulting in a deeper understanding of the operational challenges in im plementing the revocation process, better working relationships between Defe ndants’ operating divisions and with the Plaintiffs, and a focus on not just meeting the requirements of the lawsuit but developing better correctional practices.
At the March debrief, the parties revi ewed what was working well and what required improvement. The parties agreed that they had in part m et the objective of getting feedback m ore quickly to the sites they were m onitoring. This was done by an exit interview at the site with staff who represented all stakeholders and an overview email that summarized the feedback. The parties were not able to deliver a timely written report for the first m onitoring round. Anot her objective that has been m et is to
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reinvigorate the staff who works in the revoca tion process. Staff members have indicated

they feel “seen and h eard” in th is process. The direct contac t with m onitors and

information sharing on site and after the tour s was appreciated by staff. Both the Board

and Paroles Division m et with their re spective staff to discuss and explain the pilot.

Monitors did a good job of focusing on what is working well in addition to what needs to

change. There has also been identification of statewide issues that has resu lted in

additional efforts to address these issues in unit and individual training.

The major challenges identified after th e first monitoring visit were the report

writing process and outcom e, the size and com position of the monitoring teams, as well

as the operating staff on site and at the exit interviews, the need for clarity in who leads

which aspect of the process, and better prepar ation for the site and the team before a site visit.48 The most significant concerns expressed were about the report writing process and

outcome. The major problems with the report writing process included:

• The report is late and that could impact time frames and the ability to operationally get things done within this fiscal year and it creates a credibility problem
• Report is so long because of the many different positions of the parties • Staff should not be engaged in the disagreements between parties • The irony of the monitors not meeting the deadline will not be lost on the
field • The format of the report is not user friendly for the field...what product
should the report be and how is it going to be used? • Assumption that report writing will identify the solutions is not accurate

The parties reached several agreem ents at th is meeting, which included the

elimination of a tour, reducing the number of monitors on the final tour, a pre-tour packet

review, the creation of a short form of

the tour report that does not reference

disagreements between the parties but focuse s only on the agreed upon areas for desired

improvement, a mid-process operations staff report to the parties, and the Office of Court

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Compliance would sen d the corrective action plan to the parties and orchestrate a monthly conference call on progr ess on the plan. The first three of these items and the sending of the correc tive action pla n to the parties were ac complished. The rem aining items were not implemented.
Data gathered in the second m onitoring tours demonstrated that the revocation center and parole of fices pilot sites had made significant progress. Once again, the immediate feedback at the exit interview a nd through the follow-up e-mail appears to be of the greatest value to the staff assigned to make changes in the process. Senior Board and Paroles Division leaders indicated that th e process had reinvigorated the staff of the pilot sites to improve their outcomes. The report writing continued to take too long and at the July debrief m eeting the operating division staff began to question the usefulness of the report.
The written reports for the site vis its were collaboratively written, thorough and provide excellent docum entation of progress. They provide a thor ough record for the Special Master and the Court. They are less useful for the staff m embers who are trying to achieve com pliance with the Perm anent Injunction. The length of time to write the reports makes them untimely for the sites. The a nalysis is fairly high level and as su ch does not help line and mid-level staff understand impediments and problems.
The parties have agreed on process change s that the Spec ial Master believes is turning the focus of the m onitoring process from just r ecording current activity to enhancing performance. The written repo rt will be an e xecutive summary that will include relevant data but not a written detail ed analysis. Report authors can provide more detailed analysis on as needed basis. The corrective action plan will be a table that
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includes a progress m easure and will be update d on a regular basis. These changes will

help to provide data that is m ore user-friendly and relevant to the staf f in the revoc ation

process.

The audit tool created by the Office of Court Compliance will be revised based on

agreements with the Plaintiffs. The parties plan further negotiations with the goal of

jointly using this tool. Advance preparation for the monitoring tours will be thorough and

include a jo int pre-tour review of any ne w sites. The Board and Paroles Division will

identify how to disseminate learning and best practices from the two p ilot sites. All of

these changes are sh ifting the m onitoring focus from providing only the inform ation

believed to be needed to create an accurate record for the Court to including th

e

information needed for the staff in the revocation process to do their jobs better.

The parties are in agreement that the sites have made significant improvement in a

short time, and some deficiencies may already be resolved. T he pilot sites do have areas

they must continue to work on, and it is critic al that they continue to receive the support

they need to reach compliance. The parties have decided to add another site to the process

this year.

The Special Master believes the pilot project:

• Builds on the collective knowledge of the parties; • Accelerates the feedback process and provides more immediate feedback
to the staff providing services in the Valdivia process; • Helps monitors learn about the process practices that are working so the
information can be shared with other sites; • Provides the CDCR operating divisions information to help them identify
solutions to process impediments; and • Engages the operating divisions more directly and consistently in
designing solutions to compliance deficiencies and seeing them through.

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Objectives that have not been met in the pilot include:
• Sharing information about process improvement measures that have worked in other locations; and
• Clarifying the roles and responsibilities of the operating divisions and the Office of Court Compliance.

While there has been some sharing of information about lessons learned there has not yet

been any coordinated method for this process. Perhaps of greatest importance is defining

the roles of the oversight entity, the Office of Court Compliance and the Paroles Division

and Board operating units. This lack of clarity limits the Defendants from developing a

strategic perspective on the entire case. Ever yone is working on tactical issues and th ere

is no one e ntity charting the s trategic vision for achieving compliance. This bec omes

clear in areas of performance management. Many good strategies are being developed by

the Board’s W orkforce Development Unit and the Paroles Division Litigation

Compliance Unit, but there does not appear to be anyone looking at the totality of these

efforts and identifying both gains and the rem

aining impediments to achieving

compliance. Too often the Special Master has ha d to point out both acti vities that can be

used to demonstrate compliance and gaps that must be addressed.

The parties are to be co mmended for the active learning they are engaged in with

this project. Both parties have demonstrat ed flexibility and openness to change. The

collaborative relationship between the part ies is no doubt in part why the revocation

centers and parole offices are showing improvement in their compliance efforts.

• There is good progress and good compliance on this issue.

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Los Angeles County Jail Fifth Report recommendations As noted in the past four Rounds, ach ieving compliance in the P ermanent Injunction is not possible without dram atic improvement at the Los Angeles County Jail, and its associated parole units, because of the volume of cases processed through the site and the low compliance rates on many of the revocation requirements. The key problems observed over time are summarized here. In mo st cases, d eficiencies have been higher than the system average. • Parole Agent/Supervisor Conference timeliness • Notice of rights: methods, conditions, timeliness, serves never completed • Content of the Notice of Charges, in cluding insufficient description of the violation behavior alleged and failure to include charges known at the time • Violation report timeliness • Unit Supervisor review timeliness • Incomplete revocation packets, incl uding notice documents, conditions of parole, lab results, police reports, and Legal Status Summaries, and excessive redaction. o Additionally, there was no m echanism to ensure tha t attorneys receive documents produced after the packet has been forwarded. o In significant num bers of cases, this resulted in insufficient evidence of the charges alleged. • Incomplete disability infor mation, including missing disability review documents (“1073s”) and source documents • Late attorney appointments, especially “add-ons” with a day or less to prepare • Missed and late Parole Administrator reviews • Return to Custody Assessment timeliness
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• Delays or jail resistance to providing certain accommodations, particularly phone translation for notice service, a nd wheelchairs and interpreters for hearings, anecdotally
• Probable cause hearing tim eliness and content, including assessing probable cause and recording a factual basis for findings
• High numbers of postponem ents, some of which were avoidable by checking time conflicts and adjusting scheduling practices
• Delayed transportation to drug treatment program (“ICDTP”) • Timeliness of hearings after optional waivers are activated • Revocation hearing timeliness and content, including ruling on and
recording objections and correctly assessing proffered hearsay (“ Comito” balancing) • Parole agent, Board clerical s taff, and Deputy Comm issioner recruiting and retention
The Defendants continue to m ake incremental change that shou ld improve outcomes. Changes to the physical plant at the jail and to th e information systems, which can result in the significant change, will not likely begin until early in 2011.
On August 2, 2010, a pilot project for s canning notice docum ents to the Los Angeles County Jail from the Mid-City Parole District in Region III began. 49 The pilot project is designed to test a process whereby parole no tice agents do not have to travel from their parole of fice to the jail to subm it notice docu ments but rather can s ubmit notices via f ax to th e jail. Th e pilot will te st if the fax p rocess reduces travel time for parole notice agents and results in more timely notice of violations to parolees at the Los Angeles County Jail. The pilot will also provide an opportunity to refine the process prior to the com pletion of the proposed changes to the physical plant at the jail for the new Notice Service Center.
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Space for this pilo t was donated b y the Board of Paroles. A work station that includes a computer, printer and fax m achine was provided by the Paroles Division and located in a board hearing room for notice agent use. Access to the work statio n has allowed one notice agent to stay at the paro le office while the other remains at the jail. This allows for faster transfer of notice documents and thus, faster serving of the documents to parolees.
The Paroles Division and the Board have collaborated on this project and continue to work well together to finalize the contra ct needed to make changes to the physical plant that will be th e location for the permanent Notice Service Center. Defendants and representatives of the L os Angeles County Jail have reached agreement on the con tract elements and are in the process of finalizing the contract language.50 Once completed, the contract will be signed by the parties and construction can begin.
Early process indicators from the pilot project are favorable. Assigned staff members are invested in the pilot. Early indicators are that the serving of notices is taking less time with most taking place in the first or second day. This should result in a higher rate of timely serving of notices for Region III. As predicted, commute time is eliminated for the notice agent that now stays at the jail. In addition, the number of serves performed by this notice agent has increased considerably. The Paroles Divis ion plans to add another notice agent to the pilo t this m onth. A hoped for long-term outcome will be a reduction of the num ber of notice agents in the visiting room, which should reduce the noise level and enhance communication with parolees.
In addition to their efforts to make changes in the physical plant at the jail and to implement the notice pilot project, the Paroles Division and the Board have continued to
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engage in training, monitoring activities and responding to problems.51 Proposed management information system changes are still projected to be completed by December 2010.52
The following summarizes the progress Defendants have shown the Special Master over time:

Issue

Progress

Status

Parole Agent/Supervisor Conference timeliness
Notice of rights and charges: methods, conditions

Unclear because of introduction of parolees without holds into tracking system Some improved communication during service after training in mid-2009

Unclear Unknown

Notice of rights and charges: timeliness, serves never completed

Ground work laid for better space Significant improvement in timeliness in each Round since early 2009

Unchanged From 76% in 2007 to 93% presently (partial figures)53

Notice of Charges: insufficient description

Source of many missed serves explained and appropriate Unknown

It appears that 119 parolees (1%) were never served in this Round In a small study, half of the notice descriptions were inadequate

Notice of Charges: adding charges later that were known at the time Violation report timeliness

Unknown
Declined over time, both in percentage and absolute numbers

Unknown
Between 3,128 and 4,114 appear late this Round (77% compliance)

Many were completed the next day, but at least 839 were too late for the next

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Unit Supervisor review Improvement from mid-

timeliness

2008 on

step to be timely Between 174 and 410 appear late this Round (9698% compliance)

Many were completed the next day

Incomplete revocation packets and redaction
Mechanism to ensure that attorneys receive documents produced after the packet has been forwarded Missing disability review documents (“1073s”) and source documents

Incomplete: unknown Redaction: attorneys report is greatly improved None
Both have fluctuated in the same range throughout 2007-2010

Incomplete: unmeasured
Redaction: a few per week remain Discussions initiated very recently
1073s: 95-99% present
Source documents: 52% compliance for the Round

Late attorney appointments (add-ons = <1 day to prepare) Parole Administrator reviews

Improvement from mid2008 on
Late: Major improvement from early 2009 on, slightly better in the last Round than in this one

1-3 “add-ons” occur daily54
Late: from 1,594 in mid2008 to 171 currently (98% compliance)

Return to Custody Assessment timeliness

Missed: steady improvement from highs of early 2008, has returned to 2006 levels Excellent improvement from mid-2009 on

Missed: 440 reviews (5%) for the Round; 1% most recently
Between 209 and 412 were late (95-97% compliance)

Barriers to providing reasonable accommodations
Probable cause analysis and factual basis

Notice service: observed to be resolved in late 2009
Hearings: unknown Unknown

Many were completed the next day Notice service: Resolved
Hearings: unknown Management participates in systemwide requirement to observe these hearings; they

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Probable cause hearing timeliness
Postponements

Significant improvement this Round after prior fluctuations Improvement after attention in mid-2009

observed 14 hearing officers and found all to meet standards Between 124 and 367 were late (96-98% compliance)
Unknown

ICDTP transportation Optional waiver activation timeliness

Dramatically fewer for transportation issues; none for hearing officer availability in 2010 Unknown Cannot be discerned with current state of information system

Unknown 10% incorrectly entered so timeliness cannot be determined

Revocation hearing content

Unknown

3% clearly late, up to 68 days Management participates in systemwide requirement to review tapes with Comito objections (about 25% of the relevant hearings this Round)

Revocation hearing timeliness

No statistically significant differences in compliance percentages, but absolute numbers improved from early 2009 on

Otherwise, management has not looked into whether the practice of LACJ DCs comports with due process Between 30 and 121 were late (90-97% compliance)
Most, however, were not close in time

Parole agent, Board clerical staff, and Deputy Commissioner recruiting and retention

Optional waiver activations may be improved Deputy Commissioners were added in mid-2009
Overall staffing levels for all three types of staff are unknown

Optional waivers: 3% were late and another 10% may be incorrectly entered Unknown

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Requirements nearing compliance
As discussed at the outset of this report, there are also requirements where the Special Master believes that, with concentrated effort, Defendants could demonstrate substantial compliance in the short-term. This section examines the status of those requirements.
Remedial Sanctions Stipulation and Order Regarding Remedial Sanctions, April 4, 2007
Order, June 8, 2005 Permanent Injunction Exhibit A – Remedial Plan Remedial Sanctions requirem ents are in cluded in the original Permanent Injunction, as well as further court orders in 2005 and 2007. Defendants have continued to make progress and have achieved subs tantial compliance with the 2007 Re medial Sanctions Order during this Round. There remain “unresolved subjects” in the Re medial Sanctions Order. The “unresolved subjects” are those where the part ies are not in agreem ent whether and/or to what extent an issu e is within the scope of the Valdivia Permanent Injunction.55 The parties were to have met and nego tiated over these item s. Despite th e fact that these negotiations have not occurred, the Special Master finds the Defendants to have made progress on several of the “unresolved subject s.” Recognizing that the Defendants do not have to com ply with the “unresolved subjec ts,” the Spec ial Master still believ es noting the progress made is of value. The Special Master commends the Defendants for pursuing resolution of some of the “unresolved subjects” when there is no t resolution regarding their inclusion in th e
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case. The Defendants are clearly focusing m ore on good c orrectional practice and not confining their efforts to m eeting only the minimum requirements of t he case. Some of these items also speak to the broader Permanent Injunction.
Despite the continued fiscal crisis, Defendants have maintained remedial sanction programs and refined the systems for both service delivery and compliance measurement. The number of parolees in the ICDTP program has dropped by about 300 to 400 people at any given tim e. The reasons for this d ecline remain unclear but there are several factors that could be influencing the number of placements made in ICDTP.
One reason m ay be what is believed to be an increas e in program rejections by eligible parolees.56 A change in the com putation of good tim e for parolees in jail has resulted in some parolees rejecting ICDTP and choosing to serve their tim e in jail.57 In addition, Defendants believe that parole ag ents, deputy commissioners and other syste m decision-makers are becom ing more knowle dgeable about the broader array of alternatives to revoca tion and thus , are not relying solely on ICDTP. 58 While this has been a trend in past Rounds, data from this Round does not support that conclusion for deputy commissioners.59. It is poss ible that the shift of the non-revocable parole population from parole supervision may be reducing the number of parolees who require or are eligible for remedial sanction programs. On October 14, 2010, of the 108,755 parolees, 15,467 parolees were on non-revocable parole. That is approxim ately 14% of the total parolee population. This number does not reflect th ose parolees who have now completed supervision.60 Defendants have continued to refine placem ent tracking, provide education regarding rem edial sanctions for decisio n-makers in the revocation process, and create im proved compliance measurement tools and sys tems for rem edial
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sanction programs. For som e issues better documentation of practice has dem onstrated

compliance while in others new system s or analyses hav e been im plemented and/or

provided.

Substantial compliance has been achieved on the following Perm anent Injunction

and Remedial Sanctions Order items:

o Requirements from the Permanent Injunction

• Consideration of Remedial Sanctions at Each Step

o Requirements from the Remedial Sanctions Order:

• Policies and Procedures

• Interim Remedial Sanctions

• Expanding Jail and Community-Based ICDTP Programs

• Determining Availability of ICDTP

• Electronic In-Home Detention

• Sharing Information with Parolee Defense Counsel

• Training about Remedial Sanctions

• Reporting on the Parole

Violation Decision-Making

Instrument

• Female Parolees

• Out of County Transfers

Remaining Remedial Sanctions Order item s that have achieved com pliance during this
Round and are discussed below include:
• Parolees with Mental Disabilities • Evaluation

It is the opinion of the Special Mas ter that all of the items being assessed this Round are also relevant to achieving com pliance with the Perm anent Injunction. Defendants’ progress with all of these issues demonstrates progress toward compliance with the Permanent Injunction.

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Remedial Sanctions Order Items That Have Achieved Substantial Compliance Parolees With Mental Disabilities Plaintiffs indicate in the Rem edial Sanction Order that they be lieve some programs must address parolees with mental impairments. Defendants have demonstrated that they have exceed ed the Rem edial Sanctions Order ag reement to have 20 beds that address the unique needs of the dually diagnosed parolees per region. 61 They have demonstrated that parolees who would be cl assified as En hanced Outpatient Program (EOP) or Correctional Clinical Case Managem ent System (CCCMS) are accepted into ICDTP. In this Round, Defendants are able to demonstrate that dually diagnosed parolees are being s erved in th e programs that are cr edentialed to provide servic es to this population. Defendants have created a tracking system that shows not only are there programs with the capacity to s erved mentally impaired parolees, but that m entally impaired parolees are being serv ed at the hi gher level of care in ICDTP program s.62 By cros sreferencing the parolee placement lists by region with the ICDTP provider list by region, it is clear that parolees with mental health and substance abuse issues are being placed in the programs designed to serve this hi gher need populati on. Substance Abuse Coordination Agencies are responsible for assessing compliance with the standards for the higher level of care. Additionally, Plaintiffs asserted at the time of the April 2007 Remedial Sanctions Order that Defendants have fu rther obligations to provide remedial sanctions programs addressing the needs of the severely m entally ill. That was reserved in the Ord er as an “unresolved subject” and will be discussed below.
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• It is the op inion of the Special Mas ter that the Defendants have dem onstrated substantial compliance regarding the creation of remedial sanctions that target the needs of parolees with a dual diagnosis of mental illness and substance abuse.
Evaluation of Remedial Sanction Programs The parties stipulated that th e Defendants would evaluate rem edial sanction
programs and that this comm itment did not br ing the evaluations themselves within the scope of the Per manent Injunction.63 During the Re medial Sanctions Order negotiations and at several meet and confers, the issue of whether the quality of the remedial sanctions programs is within the scope of the Rem edial Sanctions Order o r the Pe rmanent Injunction has been dis cussed. Both partie s agree tha t it is in the best inte rest of the Defendants to evaluate remedial sanction programs so improvements and changes can be made as needed. It was also agreed that while evaluation is deem ed appropriate and necessary, the Defendants are the s ubject matter experts an d therefore are in charg e of interpreting and determining what to do with evaluation data. It was clearly ag reed that determining the scope, content and outcom e of evaluations is within th e purview of the Defendants.
Upon request for a demonstration of th ese evaluations, the Special Master was provided examples of rem edial sanctions ev aluations that have been com pleted. The Special Master received an exte rnal evaluation of five paro le programs: ICDTP, Parolee Service Centers, Community-based Coali tion, Day Reporting Cent ers and Restitution Centers, as well as An Eval uation of the California Prev enting Parolee Crime Program.64 Both of these external evaluations were done by universities that reviewed the progress of both remedial sanctions and program s that could be described as structured and supervised programs. Recognizing the com plexity and le ngth of tim e that progra m
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evaluation takes to complete, the com pletion of two external evaluations of rem edial sanction programs is sufficient to m eet the st andard of substantial compliance with this provision of the 2007 Order.
• The sustained level of com pliance leads the Sp ecial Master to consider this is sue to be in substantial compliance.
Unresolved Subjects in the Remedial Sanctions Order
Equity for Female Parolees Defendants have demonstrated availability of ICDTP beds for female parolees but
there remains the unresolved item in the Rem edial Sanctions Order of equity for fe male parolees. The Plaintiffs contend that female parolees des erve the same or equivalent programs as male parolees in the rev ocation process. The Defendants have dem onstrated their commitment to en suring gender appropriate programming for female parolees in several ways.65
The Office of Substance Abuse and Treatm ent Services has ensured th at there are ICDTP program s in each region th at provide services to p regnant women. Programs exist in Regions I, II, III and IV.66 In addition to ICDTP, female parolees in the revocation process have access to co-ed Resi dential Multi-Service Centers and Parolee Service Centers. There is also one Fem ale Residential Multi-Service Center (FRMSC) and two Parolee Service Centers that provide gender responsive services. Initially there were hopes to expand the FRMSC program to several regions. There has been no movement regarding th e hoped for expansion in several R ounds and the staff positions for that exp ansion were elim inated.67 The add ition of two a ll female Parolee Service Centers, Hoffman House in Long Beach and National Crossroads in San Diego, provides
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yet two more gender specific remedial sanctions for female parolees.68 Nine females were placed in these programs as a remedial sanction in the first six months of this year.69
The Office of Substance Abuse an d Treatment Services is creating options that ensure the unique needs of wom en are being met in remedial sanction programs. In the last Round, the Office of Substance Abuse and Treatment Services began placing fem ale parolees in Fem ale Offender Treatment and Employm ent Programs (FOTEP).70 These programs accept p regnant women and wom en with ch ildren. Female parolees who complete their 90-day residential program can stay in the FOTEP progr am for up to 15 months. Table 1 shows the weekly population numbers for female parolees from ICDTP placed in FOTEP by region. Women coming out of in-prison treatment programs receive priority placement into FOTEP. Region II FOTEP typically runs at full capacity and thus, ICDTP placements are rare and none occurred in this six-month period.

Table 171 ICDTP Female Parolees Placed in Female Offender Treatment and Employment Programs FOTEP

Region I II III IV
Total

March 11 0 44 59 114

April 10 0 72 40 122

May 7 0
42 34 83

June 11 0 46 44
101

July 12 0 39 56
107

August 2 0
26 41 69

Total 53 0
269 274 596

The Defendants have provi ded equivalent and gende r responsive rem edial sanctions for fem ale parolees and continue to place some f emale parolees in g ender responsive programs after their release from programs like ICDTP.

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Parolees with Disabilities Also among the “unresolved subjects” in the Remedial Sanction Order is the issue
of providing the same or equivalent service to disabled parolees as those provided to the non-disabled parolees. As noted in the ei ghth report of the Special Master, the Defendants have rem oved all exclusionary criteria based on disability in communitybased ICDTP and have demonstrated that while not all jail or community-based programs can adequately accommodate all disabiliti es, there are enough programs throughout each region that can serve different types of disabilities that disabled parolees can be placed in remedial sanction programs in each region.
In this Round, the Defendants took additional steps to demonstrate their ability to provide disability inform ation for jail and community-based ICDTP programs and to provide data regarding the actual placement of disabled parolees into ICDTP.
The distribution of internet access cards ,which allows for immediate access to the disability database in re mote locations, in combination with the inf ormation sent to jails and Substance Abuse Services Coordi nation Agencies by ICDTP placem ent coordinators, has greatly enhanced the accu racy of inform ation being provided to program providers. Internet access card distribution was completed in March 2010.72
When tracking the placem ent of dually diagnosed parolees, Defendants used the same system to track disability placem ents.73 The tracking data clearly dem onstrates the placement of parolees with disabilities in ICDTP. Defendants have demonstrated, through placement data and exp enditure data for accommodations 74 that disabled parolees are served in ICDTP.
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Despite Defendants’ efforts to the contra ry, some jail-based ICDTPs continue to exclude parolees with a range of disabilities. 75 Pl aintiffs assert that Defendants are obligated to ensure that all ja il and community-based programs can serve all typ es of disabled parolees.76 The issue of what the responsibility of the Defendants is for disabled parolees in jails has not been fully resolved by the courts.77
It is the opinion of the Special Mas ter that while Defendants have not succeeded in removing all exclusionary criteria fr om some ICDTP providers, there are enough providers in each reg ion that do accept parol ees with d isabilities that the sam e or equivalent services are being provided.
Implementation, Training and Supervision Another item in the Remedial Sanctions Order is that of ensuring that policies and
procedures are updated, staff is trained and all decision-m akers have information regarding the availability of remedial sanctions.
Availability of ICDTP beds and provider lists that note both specialized capacity, such as the ability to serve the dually diagnosed, female parolees and the disabled, are all readily available on the internet . All decision-makers in the Valdivia process have access to this inform ation each day. 78 In a ddition, a daily e-m ail is sent from the Office of Substance Abuse and Treatment Services with the ICDTP availab le bed counts for each region to all Deputy Commissioners and Parole Administrators.
Training regarding remedial sanctions is routinely done at both the entry level parole agent academy and training for new deputy commissioners. A new academ y was created for the Parole A gent III classification and it too focuses on rem edial sanctions.79 Routine training regarding Valdivia issues is provided in a variety of forums. Training in
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parole units and revocation centers is provided through the annual Paroles Division block training process80 and on an as-need ed basis.81 Remedial training is provided for units requiring additional assistance and s pecialized training has been done for various levels of management.82 ICDTP providers receive training from the Office of Substance Abu se and Treatment Services.
The Board provides training to new de puty commissioners and has provided several Valdivia trainings for all working deputy comm issioners.83 The Board has developed and used several new strategies to train Board staff regarding rem edial sanctions. On February 2 and 4, 2010, the Paroles Division and the Board conducted webinar training sessions (interactive computer training) for deputy commissioners on the use of electronic in-home detention reservation systems.84
Another new strategy is the developm ent of resource docum ents that are accompanied by self-study m odules for deputy commissioners. The B oard has created resource documents that include detailed expl anations of how a de puty commissioner is to consider and order placem ent of remedial sanctions as well as providing information regarding an array of remedial sanction option s. A very creativ e and usef ul addition to the document is a self study training m odule that provides greater detail about the programs. Both of these efforts complem ent existing training efforts and are an exc ellent example of the developm ent of sustainabl e systems that should enhance perform ance outcomes over time.85
One of the strongest demonstrations of commitment to accurate implementation is the development by the Board of supervisory audit tools that are used to ensur e the desired level of perfor mance by deputy co mmissioners. Each quarter, Associate Chief
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Deputy Commissioners, the supervisors of th e deputy commissioners, now observe and evaluate a m inimum of five probable cause hearings perform ed by all deputy commissioners and retired annuitants 86 they supervise who conduct probable cause hearings. The audit tool includes observation that remedial sanctions are considered. This level of active engagem ent by supervisors is the best strategy to e nsure that deputy commissioners are considering, and will continue to consider, remedial sanctions.87
Compliance Measurement The issue of compliance measurement in the Remedial Sanctions Order is limited
to documenting the con sideration of remedial sanctions at each s tep in the revocation process.88 In the last Round, the Special Master found the Defendants to be in substantial compliance regarding consideration of rem edial sanctions at each s tage of the parole revocation process. This finding was based in part upon modifications that had been made to the revocation data base. In this Round, the Board is conducting supervisory reviews of probable cause hearings, which provide yet another ongoing com pliance process regarding this issue.89
Alternative Placement in Structured and Supervised Environments and Self-Help Outpatient/Aftercare Programs
In this Rou nd, Defendants subm itted a discussion paper o n the two issues of alternative placements in structured and supervised environments and self-help programs. The parties disagree regarding whether this issue is within the scop e of the cas e. The Defendants’ paper provides a thoughtful desc ription of many of the rem edial sanction programs that are delivered, subcontracted an d/or used by parole agents and other
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decision-makers in the Valdivia process. Once the Plain tiffs have had adequate tim e to review the paper, th e parties should enter into negotiations to re solve this issue. This issue is part of the larger discussion of what constitutes an adequate array of sanctions to satisfy the requirements of the Permanent Injunction. The Special Master encourages the parties to include this topic in the discussion of substantial compliance for the Permanent Injunction.
Serving the Needs of the Parolees with Severe Mentally Illness The issue of the level of acuity of mental illness that Defendants must be able to
respond to with remedial sanctions has not been agreed upon by the par ties. It is an issue that is important to achieve compliance with the Permanent Injunction.
The Special Master finds it unrealistic to expect community programs, be they jail or community-based, to deliver the level of care that an in-patient p sychiatric setting would offer. The Court has clearly instruct ed the Defendants to u se the W elfare and Institutions Code § 5150 process for referring paroles in need of acute mental health care to in-patient settings.90 Defendants are enforcing this order through their Policy 09 09. 91 There is some documentation in monitoring reports that parole agents are familiar with this process and have used it.92
Permanent Injunction Requirements In addition to addressing all of the requirements of the Remedial Sanctions Order, Defendants have also addressed som e issues that are necessary for compliance with the requirements of the Perm anent Injunction. The most significant question to be answered
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regarding remedial sanctions in the Perm anent Injunction is what is a sufficient number and type of rem edial sanctions to achieve substantial compliance? The three issues reserved as unresolved in the 2007 Re medial Sanctions Order all speak to this question and could help to shape the compliance standard.
Defining Substantial Compliance The Special Master has undertaken several efforts to get the parties to define
substantial compliance with rega rd to rem edial sanctions. All ef forts failed to re ach a conclusion. The Special Master has been tolerant of the r easons both the Defendants and the Plaintiffs have of fered regarding why they can not or will not attem pt to def ine substantial compliance. Competing demands, budget crisis, staff turnover and other reasons have certainly been credib le reasons fo r past delays. That said , it is clear that these issues are not on e-time events and to delay any long er because of such issues is equivalent to putting off the issue indefinite ly. The progress in the realm of re medial sanctions is undeniable and the Defendants are to be congratulated for their consistent efforts in the past several Rounds to advance and refine the use of re medial sanctions in the revocation process. Should the parties not wish to meet and negotiate the definition of substantial compliance for remedial sanctions, the Special Master will provide the Court with a proposed definition in the next Round.
Transportation Critical to the effective f unctioning of remedial sanctions programs is the ability
to transport parolees to the program site. Delays in transporting parolees from prison and
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jail to jail and community-based ICDTPs have challenged Defendants since the inception of the program . Not all program s require tr ansportation, but clearl y transportation is needed for ICDTP. Defe ndants must demonstrate the capacity to transp ort parolees in a timely manner. Defendants have made progress in this area this Round.
There has been a no ticeable decrease in transportation problems this Round. Monitoring reports, Plainti ffs’ inquiries into individua l parolees’ problem s, and observations of parolee defense counsel all i ndicate fewer delays in transporting parolees to ICDTP this Round. Defendants’ data supports these observations.93
Eight Parole Service Associates were hired and began work this Round. They assist in tracking paro lees from endorsement to placement. They ch eck central files for issues such as medical, mental health and/or outstanding warrants that might be impeding transportation and ass ist in r esolving the issues so the parolee can be transported.94 Funding to hire 7 parole agents,95 who will also assist in this area, has been frozen.
The addition of the eight Parole Servi ce Associates has resulted in a stead y decline in transpo rtation delays. In June, there were 235 instan ces of delays in transportation. In July, the num ber had dropped to 183, and by August, the num ber had declined to 139. 96 W hen compared to the num ber of parolees admitted to ICDTP f or June and July, the approxim ate percentage of cases where th ere is a tran sportation delay remains high at 36% for June and 32% for July. 97 Defendants are making steady progress on this issue. The Defe ndants’ continued atte mpts to reso lve this issu e demonstrates a commitment to providing meaningful access to remedial sanctions.
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Compliance Oversight and Quality Assurance

Essential to achieving substantial compliance in the Perm anent Injunction is the

ability of the Defendants to demonstrate that they have designed and im

plemented

effective compliance and quality assuranc e systems. Compliance e nsures that the

elements of the Perm anent Injunction are implemented. Quality a ssurance systems

ensure not only tha t the legal requirements of the injun ction are met but tha t good

correctional practice continues to refi ne systems and program s long after the

requirements of the injunction have been met. Defendants have developed and are

beginning to ref ine both com pliance and qua lity assurance systems in the are a of

remedial sanctions.

The Office of Substance Abuse an d Treatment Services, the Board’s Workforce

Development Unit, the Paroles Div ision Litigation Compliance Unit and the Office of

Court Compliance have all c reated compliance and quality assurance system s that are

being institutionalized to en sure that rem edial sanctions are available, understood,

considered and used by the revocation process decision-m akers. These units w ould

benefit by taking tim e to reflec t on their individual efforts, document their efforts, and

outline what remaining steps need to be taken to ensure that these units have collectively

created the quality assurance systems needed to institutionalize the changes required by

the Permanent Injunction. The collective efforts of these units are impressive, but the lack

of a system ic representation of both effort s and remaining steps masks the level of

progress being made.

///

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Forms provided to parolees are to be reviewed for accuracy, simplified, and translated to Spanish (¶19)
The Board recently finalized the translation for 10 key forms and distributed them for use during notices of rights, contacts c oncerning absconding, and hearings. This is a welcome advance. Plaintiffs have identifie d an additional 19 form s from the various divisions where they assert th at translation is n eeded. Most forms reportedly also have been simplified as required ; two Paroles Divis ion forms remain to be sim plified for a lower reading level.
To complete this requirement, the parties m ust negotiate the s cope of the remaining forms to be included, and must shepherd the translation process as they did for the first 10 forms. This appears to be straightforward and attainable in the short term.
Appeals (¶31(a) While appeals are not subject to a Valdivia court order, they were expressly reserved in the Perm anent Injunction as an open issue in the litig ation that the parties expected to negotiate. That issue rem ains unresolved. In the m eantime, Defendants employ a system they distinguish from appeal s. The parties have reached agreem ent on the Defendants’ system of “Decision Review.” The Decision Review policies that the parties have agreed upon were implemented in July 2009. The Board’s Qual ity Control Unit has created a tracking system for decision review outcomes that are initiated by an external source. The Quality Control Unit has tracked data from February 1 through July 31, 2010. 98
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The data indicates that the majority of the requests, slightly over 76%, are due to a perceived error of law, with most of the other requests based on a perceived error of fact, 19%.99 Most of the requests are generated from the parolee (60%), with m ost of the remaining requests generated by the parole e’s appointed counsel (24%). The data supports the Defendants’ contention that m ost of the requests do not com e from the Paroles Division or the Board. 57% of the re view requests are th e result of an action taken at a revocation hearing and 31% are ge nerated from a probable cause hearing. Out of the 144 cases reviewed, 8% result in an amendment or m odification and 8% are rescinded; 84% of the requests result in dism issal or reaffirm the original decision. The Board is also trying to determine if it can track whether a parole hold was placed pending decision review and when the rev iew results in a new hearing the duration from the date of decision review is completed to the date the parolee receives a new hearing.
This data and the Decision Review proces s needs to b e reviewed with Plaintiffs before the parties can reach final agreem ent that the d ecision review process is functionally effectively.
 There is progress on developing a wa y to m easure the o utcomes in decision review
Defendants shall develop training, standards, and guidelines for state-appointed counsel (¶17)
Parties’ counsel negotiated m inimum standards for administration of the attorney panel, which reportedly were incorporated in the Request for Proposal let in September 2007, as well as in policies and procedures. The parties intended to continue to negotiate concerning standards and guide lines for individuals repres enting parolees, including a variety of legal duties, revocation procedures, and Valdivia-specific advocacy and
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obligations. To the Special Master’s knowledge , those negotiations have not taken place. As there is likely to be little controversy in the substance of those standards, this is a topic that the pa rties likely could bring into subs tantial compliance in the near term with concentrated and sustained effort.
 There is good compliance with this requirement.
Requirements in Substantial Compliance
As discussed in previous reports of the Special M aster, where Defendants’ systems have proven highly effective consiste ntly over time, the Special Master will consider those requirements to be f ulfilled and they will be termed “substan tially compliant.” This will generally apply to performance across the system, but an individual Decentralized Revocation Unit may be able to reach this status.
Substantially compliant items will rem ain within the Permanent Injun ction, but the Special Master and the Plaintiffs will discontinue review of such items unless they are inextricably linked with review of the hearing process. Requirements will remain in this status unless and until a significan t decline in performance surfaces. Defendants sh ould continue to review the se items during quality improvement efforts at regular intervals to prevent such a decline.
Prior Rounds During prior Rounds, the following item s were determ ined to be in substantial compliance:
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Requirements from the Permanent Injunction
• By the tenth business day after th e hold, Defendants shall create a Return to Custody Assessment
• Revocation hearings are to be held within 50 m iles of the alleg ed violation
• Counsel shall have access to all non-confidential portions of field files • Designation of information as confidential • Consideration of remedial sanctions at each step

Requirements from the April 2007 Remedial Sanctions Order
• Policies and procedures • Interim remedial sanctions • Expanding jail- and community-based ICDTP programs • Determining availability of ICDTP • Electronic In-Home Detention • Sharing information with parolee defense counsel • Training about remedial sanctions • Reporting on the developm ent of the Parole Violation Decision-
Making Instrument • Female parolees • Out-of-county transfers

As required, Defendants reviewed and repor ted on the items that were deemed in

substantial compliance during the Seventh R ound. The report indica ted that Defendants

have maintained these items in substantial compliance.

There was a partial exception for return to custody assessm

ents at three

institutions, where timeliness fell to 77% to 90%, substantially below the level at which

substantial compliance was determ ined. Defendants initiated closer ov ersight to a ssess

and address the causes, and to generate m ore frequent reports to demonstrate whether the solutions were ef fective.100 In each case, the s olutions improved compliance levels quickly; the m ost recent figur es range from 91% to 96%. 101 One ins titution bears

monitoring longer as its num bers remain lower than expected. Th is is exactly the

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approach the Special M aster encourages – monitoring, inquiry and self-correction will help demonstrate Defendants’ ability to re sume full responsibility for the r evocation system.
It is the Special Master’s opinion th at the requirem ents found in substantial compliance in the Seventh Round remain in that status.
Current Round As discussed above, the Special Master considers the remaining two requirements of the Remedial Sanctions Order – evaluation a nd parolees with m ental disabilities -- to have been met. He recommends that the en tire April 2007 Re medial Sanctions Order be ruled in substantial compliance at this time. Additionally, Defendants have greatly im proved and sustained the tim eliness of return to custody assessments at Los Angeles County Jail. For the past y ear, this facility has maintained a tim eliness rate of 95% as to all c ases. A large proportion of the late cases were completed the following day. Although questions remain as to the accuracy of the information system, this rate is equivalent to that show n for th e rest of the system. Los Angeles County Jail should join its colleague s in relief from monitoring this topic as it is substantially compliant.
Recommendations
The Defendants have dem onstrated compliance with som e requirements of the Permanent Injunction and the Rem edial Sanctions Order, meeting their essential aim. I therefore recommend that the Court order that the following requirem ents are
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substantially compliant, and that the subjects will therefore no longer be a prim ary focus of Plaintiffs’ or the Spe cial Master’s monitoring unless they are inextricably linked with review of the hearing process, the rem edial sanctions obligations of the Pe rmanent Injunction, or arise in the course of investig ating an individual parolee’s situation. These items will rem ain in this status unless and until it com es to the partie s’ or the Specia l Master’s attention that there has been a significant decline in compliance.
These orders should apply to the following requirements: • All provisions of the Stipulation and Or der Regarding Remedial Sanctions, dated
April 4, 2007 • The return to custody assessm ent step of the revocation process for all facilities,
including Los Angeles County Jail
I recommend that the Court order the De fendants to re port the status of these requirements to all parties every six months, beginning on July 8, 2011.
For the reasons detailed supra, Defendants are in violation of this Court’s November 13, 2006 Order concerning information system changes. Although Defendants’ efforts since the issuance of the draft Ninth Report appear promising, it is critical that these efforts be sustained, in contrast to past efforts, and therefore further orders are warranted. The Special Master recommends that the Court order:
1. Defendants must conduct a comprehensive review of the integrity of the data in RSTS and how it is displayed in reports. This will include reviewing the RSTS coding to identify precisely how the data is being defined, the assumptions on which the system operates, and how each report is collecting, categorizing, and reporting data, including which populations are included and excluded from each report and according to what variables. This review shall be
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led by the Office of Audits and Court Compliance and the Board of Parole Hearings, and must be completed within 90 days of this Order.
a. The results of this review must be recorded in detail, written in language meaningful to non-technical professionals, and provided to the Special Master within 120 days of this Order.
2. Within 120 days of this Order, Defendants shall execute an external contract to ensure that adequate ongoing technical support is available for RSTS.
3. Within 180 days of this Order, Defendants must complete a comparative analysis to determine whether RSTS can be revised in a timely fashion to meet Defendants’ obligations to demonstrate compliance with the various components of the Permanent Injunction, whether the relevant portion of the anticipated replacement information system (“SOMS”) can fulfill this obligation, or whether another system is needed.
4. Defendants must produce a plan to address any data integrity issues identified in the review described in requirement #1, and to complete the creation of, or changes to, the 40 reports previously identified through the efforts of the RSTS user project manager workgroup and the Special Master. a. To the extent that Defendants’ comparative analysis determines that another system is preferred, this plan must identify with specificity the intended replacement system, the steps necessary to implement it, the strategies for obtaining funding, and feasible timelines for implementing it expeditiously. b. The plan must include feasible timelines for completing these report changes on a regular schedule. c. The legends for each report must be updated to reflect the more detailed information generated under requirement #1 above as they are built or revised.
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d. The plan must be submitted to the Special Master within 240 days of this Order.
e. To the extent the intended solutions do not resolve the problems, Defendants will continue to work on solutions until the Special Master determines that the problems are addressed.
f. If other substantial issues surface with the accuracy, completeness, and utility of RSTS reports, Defendants will amend the plan to include the plans for addressing the newly identified issues within 15 days of the Special Master or Defendants discovering those issues.
5. In the course of designing the new reports and changes described herein,
Defendants will augment their effort with routine input from representatives of
the affected divisions who are currently using RSTS in daily field operations,
representatives of their management, and CalPAP.
6. Defendants will complete the remedies for any data integrity problems, new
reports, and report changes, on the schedule they set forth in their plan.

Respectfully submitted,
_/s/Chase Riveland
Chase Riveland Special Master

DATED:

October 21, 2010

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1 Defendants object to mention of jurisdiction on the basis that it is not required in the Permanent Injunction. 2 See individual 1502bs contained in the electronic file titled NORs-1502bs 3 See monitoring reports contained in the electronic file titled NORs-1502bs 4 Id. 5 See Special Master’s fourth report (monitoring studies showed 20%) and sixth report (larger studies with better methodology showed 32%) 6 For example, compare Closed Case Summary and NOR Timeliness, each run for Feb. 1 through Jul. 31, 2010. For greater detail, please see prior reports of the Special Master. 7 Defendants wish to emphasize that this is not expressly named in the Permanent Injunction. 8 The source for this Jurisdiction section is informal communications with Defendants’ executive staff 9 Special Master’s observations; informal communication with CalPAP and Defendants 10 Memo re: non-revocable parole dated Jan. 28, 2010 11 CCR 3084.6(b), CCR 3084.7(a) 12 Informal communications with Defendants 13 Probable Cause Hearing Audit Process memo dated May 11, 2010 14 Probable Cause Hearing Evaluation and score sheet 15 Probable Cause Hearing Compliance Review Report, Sept. 2010 16 See RSTS records of all probable cause hearings in the final week of Jul, 2010 and individual records in the electronic folder titled PCH or its subfolders. This study had three components. One set was drawn from a snapshot of the hearings conducted in the most recent week of the data period. Another set was drawn from the reviews conducted by the ACDCs (hearing officers’ supervisors). A third set was drawn from hearings CalPAP identified in which attorneys challenged probable cause. Each was an accidental sample. 17 Other Objections for each month from Feb. through Jul. 2010 18 Unless the first attempted hearing was itself untimely 19 The data reports concerning postponements and time waivers totaled 3,637 during the Round, approximately 10% of the 35,454 probable cause hearings shown. However, the postponement reports contain duplicate entries and revocation hearing postponements, so the actual percentage cannot practically be discerned. 20 Reviewers catalogued the number of cases reheard within one week (treated as a reasonable time for purposes of this study), the number reheard in 8 to 17 days, and the number requiring 18 or more days to rehearing (treated as an unreasonable time for any hearing for purposes of this study). Only the cases in the middle category were examined for certain data points such as type of hearing, as that timeframe was considered reasonable for a revocation hearing but not for a probable cause hearing.
Excluded from this study was a large number of administrative entries and postponements attributed to causes where a reasonable length of time is situation-specific: mental health crises and quarantines, for example. Many of these were very lengthy, but reasonableness could only be determined case by case through 550 cases. The number of lengthy cases among them, along with cases in other subpopulations treated as facially reasonable where that judgment might not stand up under scrutiny, constitute a total similar to that in text of the instant report. 21 The parties and Special Master have not defined a reasonable length of time to rehearing for postponed probable cause hearing. By this reference, the Special Master does not intend to endorse any particular standard. Rather, this length of time is a conservative measure that few could argue is too strict of a standard. The ultimate measure may be one week, or it may be a shorter time period. Contents of electronic folder titled PP PCH Study. 2222 These were determined by examining a large, randomly selected sample (28%) of all time waiver cases closed during the Round; 21% of them extended beyond the time waived. Only the actual cases identified are reported here, rather than the percentage applied to the full population. Because of this extremely conservative approach, the likely number is much higher – this representative sample is likely to yield 3½ times this many case. Closed Case Summary – Good Cause Postponement (run for timeliness waiver reason only), Feb. 1 through Jul. 31, 2010; electronic document titled Time Waiver Study for Special Master 09_10.xls
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Additionally, the total includes cases identified by reviewing a small handful of open time waiver reports for cases late at the time the reports were run, controlling for duplicates across reports. Again, there predictably are significantly more to be identified in a more comprehensive review of open case reports. 23 These are measured from return to California. Closed Case Summary – Extradition, Feb. 1 through Jul. 31, 2010; Closed Case Detail – Extradition, Step PCH for each DRU with late cases 24 The open case reports display the timeliness of the case for the step in which it is pending at the time the report is run. Case by case analysis is the only way to determine whether prior steps were timely for that case. Thus, one cannot determine the timeliness of the probable cause hearings for those cases currently pending revocation hearing, about 24% of the probable cause hearings on these reports. 25 Parolee Activated Optional Waiver, Feb. 1 through Jul. 31, 2010, run collectively and for each DRU; Optional Waiver Taken – Open Cases, for each of Mar. 20, Apr. 12, Jun. 25, Jul. 8, Aug. 30, and Sept. 13, 2010; 26 Closed Case – Valdivia Timeliness Rules, Feb. 1 through Jul. 31, 2010; Open Case Summary for each of Mar. 20, Apr. 12, Jun. 25, Jul. 8, and Aug. 30, 2010 27 Other Objections for each month from Feb. through Jul. 2010 28 Those orders were upheld on appeal and a petition for rehearing en banc was denied 29 Memo re: Comito Review Process, Mar. 1, 2010 30 Comito Objection Summary, Feb. 1 through Jul. 31, 2010; Comito Objections Denied and Comito Objections Granted, run for each of those months 31 Id. 32 See individual records in subfolder of electronic folder titled Comito and Other Objections; also a sample reviewed from Comito Objections Denied and Comito Objections Granted, each for Jul. 2010 33 Comito Objections Denied, Comito Objections Granted, and hearsay objections contained in Other Objections, each run for each month from Feb. through Jul. 2010 34 CDCR’s report captures 614 relevant cases for the Round. CalPAP’s Comito and Other Objections reports reflect 800. 35 Other Objections, each run for each month from Feb. through Jul. 2010 36 Id. 37 87 cases had two proceedings after activation and were concluded later than 35 days from activation; these two proceedings were likely an optional waiver review and a revocation hearing, but could have included optional waiver reviews that were postponed before concluding at that step. Parolee Activated Optional Waiver, Feb. 1 through Jul. 31, 2010
An additional 16 cases concluded later than 35 days from activation but appeared as only one step, so may have been very late optional waiver reviews. 38 These are most likely to be revocation hearings, but it was impractical to separate any that occurred at probable cause hearing. Closed Case Summary – Good Cause Postponement, Feb. 1 through Jul. 31, 2010; Closed Case Summary – Not Good Cause Postponement, Feb. 1 through Jul. 31, 2010; 39 Contents of electronic folder titled NIC and its subfolders 40 Contents of electronic folder titled Rev extension 41 See joint monitoring reports for RJD for January and June visits 42 See, e.g., revocation extension monitoring report issued by Susan Christian dated Jun. 15, 2010 43 Order of Nov. 13, 2006 44 See, e.g., Closed Case Summary – Good Cause Postponement and Parolee Activated Optional Waivers, each run for Feb. 1 through Jul. 31, 2010 45 See RSTS_Reports_Status June 2010 w-OSM observations.xlsx 46 RSTS Progress Report 6-17-10 to 8-31-10.doc 47 Taken from the March 15, 2010 meeting minutes that were shared with and approved by the Parties. 48 See Monitoring Process Notes 3152010.doc 49 See Cell 41 Pilot Project at LACJ.htm 50 See BPH update on LACJ.htm 51 See SKubicekActitities.htm. On August 16, 2010 Parole Administrator Steve Kubicek provided the Special Master a list of activities staff had engaged in that demonstrate continued training and work to improve outcomes at Los Angeles County Jail. 52 Steve Kubicek, Parole Administrator, Region III has indicated that the changes are still forecast to be completed by December 2010.
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53 Informal communications with CalPAP 54 Informal communication with CalPAP; based on CalPAP’s review of recent mail logs 55 See Stipulation and Order Regarding Remedial Sanctions, April 4, 2007, Order, June 8, 2005. 56 ICDTP had a count of 1458 at the beginning of March, dropped to as low as 1331 in April and by the end of August was back at 1493. This is a decrease of approximately 300 from the 1800 funded beds. There has been no change in eligibility and no decrease in the number of referrals accepted. See excel spread sheets 3-1-2010 Continuing Care Weekly Report.xls thru 8-3-2010 Continuing Care Weekly Report.xls. Plaintiffs and Defendants indicated during the focused DRU monitoring tours at Santa Rita that there appeared to be more parolees rejecting ICDTP than in the past. 57 See Jail Day for Day Comparison for One Third Time on RTC.xls This chart shows the amount of time difference before and after the good time change in jails. 58 OSATS Staff Services Manager, Kevin Hoffman shared this observation in conversation with OSM Deputy Director, Nancy Campbell on Sept 9, 2010. 59 Third Prong Remedial Sanctions Report, Sept. 2, 2010 60 See the NRP sections of the parole tab on the CDCR website. This data is updated and will change over time. 61 See OSM 4 for description of enhanced criteria for ICDTP services for mentally ill and OSM 7 for further documentation that there are more than 20 beds per region that provide the enhanced services for the dually diagnosed. 62 See Region I, II, III and IV ADA-EOP-CCCMS.xls. For the Region I report, the password is osats2010. Sometimes programs listed will not show on the list because they are part of a larger umbrella program. For example, in Region IV, Arrow House falls under Inland Valley in San Bernadino. 63 See Section IV C of the Remedial Sanctions Order. 64 An Evaluation of Five Parole Programs 2010.pdf; PPPC Evaluation Report.pdf. 65 It should be noted that best correctional practice is not to provide the same or equivalent programs for females but rather gender responsive programs. That is to say, to provide women only with programs that are equivalent to those designed for men does not meet the unique needs of women. 66For a current example see Region II SASCA Providers for Female Clients.xls. For data from all regions see OSM 8. 67 Valdivia Staff Vacancy Report Sept. 2010 68 See PDU Quarterly July 2010 Issue (2).doc. 69 See correspondence with Rodney Gray, FW:PDU Quarterly Newsletter - July 2010-Message.html 70 See FOTEP PHONE LISTupdated 9-8-10.xls 71 See FOTEP Weekly 3-15 to 8-30 xls. Since the reports are weekly and sometimes include days from other months, the monthly figure is the total from the first weekly report of each month. Thus the numbers represent a reasonably accurate estimate of use but it is not exact. 72 Distribution was confirmed in a conversation between OSM Deputy Campbell and Kevin Hoffman, OSATS Program Manager. 73 See Region I, II and III ADA-EOP-CCCMS reports. While the SASCAs were not asked by the OSM to report on the issue of disability three out of four regions did. 74 See discussion in OSM 8 re: accommodation expenditures. 75 See Jail-based ICDTP exclusionary criteria ICDTP_Matrix0001(2).pdf 76 See Sc-Defs Letter re Discrimination in ICDTPs 3-19-10 581-9 letters.pdf 77 See CountyJailOrder.pdf. This case has just been remanded back to the District Court. The Court of Appeals did agree that the State has responsibility to ensure access for disabled parolees when in county jails.
78 See ICDTP Jail Exclusionary Criteria - http://www.cdcr.ca.gov/DARS/docs/ICDTP_Matrix.pdf
ICDTP Community Provider Listing - http://www.cdcr.ca.gov/DARS/docs/ICDTP_Provider_List.pdf
ICDTP Daily Bed Availability Report - http://www.cdcr.ca.gov/DARS/docs/ICDTP_Bed_Availability_FINAL.pdf
79 See PA III 5-10.pdf
66

Case 2:94-cv-00671-LKK-GGH Document 1616-1 Filed 12/02/10 Page 67 of 67
80 The first DAPO Block Valdivia/Armstrong Training took place in September of 2007. See Training Memo 7-20-07.pdf. The training has improved significantly each year and has developed into a more interactive and informative training. 81 For examples, see LACJ Training Efforts.htm; OSATS Provider Training Invitation March 25 2010.doc 82 See Valdivia Training for DAPO Executive Staff.htm and LACJ Training Efforts for an example of remedial training. 83 The first deputy commissioner training was in November of 2006. It was at best adequate. Since then the Board has delivered trainings for current Deputy Commissioners in March and August 2007,April 2008, April, August and November 2009 and March 2010. The August 2010 was deferred until October and now is re-scheduled for Dec. 2010. In addition, two new Deputy Commissioner Academies have been held in Dec 2007 and June 2009. See re: Valdivia Training. 84 See FW: OSM 9th Report Inquiries.htm 85 Examples include: RD #9a ICDTP (8-17-10).doc; ICTDP Memo 1-5-10.pdf; IDCTP PPT.pdf; RD #9 Remedial Sanctions RD (9-13-10).doc; RD 9 Remedial Sanction Criteria (9-13-10).pdf; RD#19 PVDMI (913-10).pdf 86 A type of employee who has retired from state service but is available to work for a limited number of hours per year. 87 See PCH Audit Instrument 2010 (4 fillable pgs).pdf, page 1 88 The exact language from the Remedial Sanctions Order is : Compliance Measurement: Defendants’ plan, including timeline, for the modification of information systems, including RSTS and CalParole, to track the consideration of remedial sanctions at each stage of the parole revocation process. See Remedial Sanctions Order 4-3-07.pdf 89 The Probable Cause Audit includes checking to see that the deputy commissioner considers remedial sanctions. See PCH Audit Instrument 2010 (4 fillable pages).pdf 90 See Order re DMH 8-8-08.pdf, Order item 1. 91 See DAPO Policy 09 09 Treatment for Mentally Ill Parolees.pdf 92 For example, see Valdivia RJD Monitoring Report 9-16-10. 93 Mary Swanson, Director of CalPAP, informally surveyed field offices about transportation problems and all said there was significant improvement and where problems occurred they have a contact person for problem resolution. Conversation between Swanson and OSM Deputy Campbell, September 13, 2010. 94 See ICDTP Placement Coord and PSA Listing.xls 95 The original funding request of 11 parole agents has been reduced to 7 parole agents. 96 See e-mails TransportsJuneJuly.htm and TransportsAugust.htm. 97 See rpt_count_march thru July2010.rtf. This table shows the number of parolees admitted to ICDTP March through July. 98 See Ex Dec Rev – Data Collection 9-10-10 (2) doc. 99 See Decision Review (As of 9-15-10) Final Redacted.pdf. All percentages are rounded in the text of the report. 100 Substantial Compliance Status Report, Jul. 7, 2010 101 Electronic document titled Follow-up reporting.docx
67

 
 1

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

8

EASTERN DISTRICT OF CALIFORNIA

9

10 JERRY VALDIVIA, ALFRED YANCY, and HOSSIE WELCH, on their own
11 behalf and on behalf of the class of all persons similarly situated,
12 Plaintiffs,
13 v.
14 ARNOLD SCHWARZENEGGER, Governor of
15 the State of California, et al.,

NO. CIV. S-94-671 LKK/GGH O R D E R

16

Defendants.

/

17

18

The Special Master filed his Tenth Report on April 21, 2011.

19 (Doc. No. 1647). No objections were filed. The court has considered

20 the report and ADOPTS the Special Master’s findings and

21 recommendations in full.

22

Further, the court HEREBY FINDS that defendants have

23 demonstrated substantial compliance with the following

24 requirements:

25 • Plaintiffs’ counsel has access to the information

26

reasonably necessary to monitor compliance; and

1

1 • Deputy Commissioners shall not have authority to increase

2

the Return to Custody Assessment at the Probable Cause

3

Hearing.

4 These requirements will therefore no longer be a primary focus of

5 Plaintiffs' or the Special Master's monitoring unless they are

6 inextricably linked with review of the hearing process, the

7 remedial sanctions obligations of the Permanent Injunction, or

8 arise in the course of investigating an individual parolee's

9 situation. These items will remain in this status unless and until

10 it comes to the parties’ or the Special Master’s attention that

11 there has been a significant decline in compliance. To allow for

12 such attention, defendants SHALL report the status of these

13 requirements to all parties every six months, beginning on January

14 8, 2012.

15

IT IS SO ORDERED.

16

DATED: May 13, 2011.

17

18

19

20

21

22

23

24

25

26

2

 
 1

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

8

EASTERN DISTRICT OF CALIFORNIA

9

10 JERRY VALDIVIA, ALFRED YANCY, and HOSSIE WELCH, on their own
11 behalf and on behalf of the class of all persons similarly situated,
12 Plaintiffs,
13 v.
14 EDMUND G. BROWN, JR., Governor of
15 the State of California, et al.,

NO. CIV. S-94-671 LKK/GGH O R D E R

16

Defendants.

/

17

18

Pending before the court are two motions following the remand

19 of this matter by the Ninth Circuit. Plaintiffs move to enforce the

20 stipulated injunction issued by this court on March 9, 2004, and

21 to prohibit enforcement of Prop. 9 § 5.3, passed by California

22 voters in 2008. Defendants move to modify the injunction to conform

23 with Prop. 9. The court resolves the instant motions on the papers

24 and after oral argument. For the reasons that follow, plaintiffs’

25 motion is granted in part and denied in part. Defendants’ motion

26 is granted in part and denied in part.

1

1

I. Background

2

The factual and procedural background of this case has been

3 recited in detail in prior orders of this court. See e.,g.Valdivia

4 v. Schwarzenegger, 603 F.Supp.2d 1275, 1276. A summary of this

5 background and subsequent developments follows.

6

Plaintiffs filed this class action in 1994, challenging

7 California’s parole revocation process on constitutional grounds.

8 In 2002, this court granted partial summary judgment to plaintiffs,

9 holding that the parole revocation process violated plaintiffs’ due

10 process rights. Valdivia v. Davis, 206 F. Supp. 2d 1068 (E.D. Cal.

11 2002). Specifically, the 2002 order held that the system in place

12 at the time “allowing delay of up to forty-five days or more before

13 providing the parolee an opportunity to be heard regarding the

14 reliability of the probable cause determination does not” meet

15 constitutional muster. Id. at 1078. In October 2002, the court

16 ordered defendants to file a proposed remedial plan to address the

17 constitutional deficiencies identified in the June order. In July

18 2003, the court issued an order in response to defendants’ request

19 for guidance on “what precisely the Constitution requires with

20 respect to the timing and content of revocation hearings.”

21 Reiterating that procedural due process requirements are flexible

22 as to each factual situation, the court nevertheless concluded,

23 after a comprehensive review of the case law, that “a period of ten

24 days [to hold a probable cause hearing] strikes a reasonable

25 balance between inevitable procedural delays and the state’s

26 interest in conducting its parole system, on the one hand, and the

2

1 liberty interests of the parolees, on the other.” July 23, 2003

2 Order at 13. The court additionally set forth some minimal

3 standards for the probable cause hearings with respect to accuracy.

4

On March 9, 2004, this court approved a stipulated settlement

5 and permanent injunction (“Injunction”), which incorporated a

6 remedial plan submitted by the defendants. The Injunction contains

7 the following provisions:

8

1) A parole revocation hearing shall be held no later than

35 calendar days from the date of the placement of the

9

parole hold. Stipulated Permanent Injunction ("Inj.") ¶

11(b)(iv), 23.

10

2) Defendants shall hold a probable cause hearing no later

than 10 business days after the parolee has been served

11

with notice of the charges and rights, which shall occur

not later than three business days from the placement of

12

the parole hold. Inj. ¶ 11(d).

3) Defendants shall appoint counsel for all parolees at the

13

beginning of the RTCA stage of the revocation proceedings.

Defendants shall provide an expedited probable cause

14

hearing upon a sufficient offer of proof by appointed

counsel that there is a complete defense to all parole

15

violation charges that are the basis of the parole hold.

Inj. ¶ 11(b)(I).

16

4) At probable cause hearings, parolees shall be allowed to

present evidence to defend or mitigate against the charges

17

and proposed disposition. Such evidence shall be presented

through documentary evidence or the charged parolee's

18

testimony, either or both of which may include hearsay

testimony. Inj. ¶ 22.

19

5) The use of hearsay evidence shall be limited by the

parolees' confrontation rights in the manner set forth

20

under controlling law as currently stated in United States

v. Comito, 177 F.3d 1166 (9th Cir. 1999). The Policies and

21

Procedures shall include guidelines and standards derived

from such law. Inj. ¶ 24.

22

6) Parolees' counsel shall have the ability to subpoena and

present witnesses and evidence to the same extent and under

23

the same terms as the state. Inj. ¶ 21.

24 On November 4, 2008, California voters passed Proposition
25 9: “Victims' Bill of Rights Act of 2008: Marsy's Law." Prop. 9
26

3

1 adds § 3044 to the California Penal Code. That section provides:

2

a) Notwithstanding any other law, the Board of Parole

Hearings. . .shall be responsible for protecting victims'

3

rights in the parole process. Accordingly, to protect a

victim from harassment and abuse during the parole process,

4

no person paroled from a California correctional facility

following incarceration for an offense committed on or

5

after the effective date of this act shall, in the event

his or her parole is revoked, be entitled to procedural

6

rights other than the following:

(1) A parolee shall be entitled to a probable cause

7

hearing no later than 15 days following his or her

arrest for violation of parole.

8

(2) A parolee shall be entitled to an evidentiary

revocation hearing no later than 45 days following

9

his or her arrest for violation of parole.

(3) A parolee shall, upon request, be entitled to

10

counsel at state expense only if, considering the

request on a case-by-case basis, the board or its

11

hearing officers determine:

(A) The parolee is indigent; and

12

(B) Considering the complexity of the charges,

the defense, or because the parolee's mental or

13

educational capacity, he or she appears incapable

of speaking effectively in his or her own

14

defense.

(4) In the event the parolee's request for counsel,

15

which shall be considered on a case-by-case basis, is

denied, the grounds for denial shall be stated

16

succinctly in the record.

(5) Parole revocation determinations shall be based on

17

a preponderance of evidence admitted at hearings

including documentary evidence, direct testimony, or

18

hearsay evidence offered by parole agents, peace

officers, or a victim.

19

(6) Admissions of the recorded or hearsay statement of

a victim or percipient witness shall not be construed

20

to create a right to confront the witness at the

hearing.

21

(b) The board is entrusted with the safety of victims and

the public and shall make its determination fairly,

22

independently, and without bias and shall not be influenced

by or weigh the state cost or burden associated with just

23

decisions. The board must accordingly enjoy sufficient

autonomy to conduct unbiased hearings, and maintain an

24

independent legal and administrative staff. The board shall

report to the Governor.

25 Prop. 9 § 5.3.

26

Following the passage of Prop. 9, plaintiffs moved to enforce

4

1 the injunction, asserting that portions of § 3044 conflicted with

2 provisions of the injunction and must be held invalid. Defendants

3 moved to modify the injunction, arguing that § 3044 does not

4 conflict with the injunction, and that if there was a conflict, the

5 injunction should be modified to conform to Prop. 9.

6

The court issued an order on those motions on March 29, 2009

7 (“March Order”). The March Order noted four provisions of § 3044

8 that were in plain conflict with the injunction. See Valdivia 603

9 F. Supp. 2d at 1282-83. Citing the Supremacy Clause of the 10 Constitution and cases interpreting it,1 the court held that where

11 there was a conflict between Prop. 9 and the injunction, Prop. 9

12 could not be enforced. Thus, the court granted plaintiffs’ motion

13 and denied defendants’.

14

Defendants appealed the March Order to the Ninth Circuit. The

15 Ninth Circuit rendered a decision on March 25, 2010, vacating and

16 remanding this court’s March Order. The Ninth Circuit held “unless

17 a state law is found to violate a federal law, or unless the

18 Injunction is found necessary to remedy a constitutional violation,

19 federalism principles require the reconciliation of state law and

20

21

1 See, e.g., Cooper v. Aaron, 358 U.S. 1 (1958)(“If the

legislatures of the several states may, at will, annul the 22 judgments of the courts of the United States, and destroy the

rights acquired under those judgments, the constitution itself 23 becomes a solemn mockery.”); Missouri v. Jenkins, 495 U.S. 33, 57

(1990)(district court order requiring the state to raise taxes 24 beyond the state statutory limit in order to fund a desegregation

plan must be enforced in spite of state statute, as “to hold 25 otherwise would fail to take account of the obligations of local

governments, under the Supremacy Clause, to fulfill the 26 requirements that the Constitution imposes on them.”).

5

1 federal injunctions.” Valdivia v. Schwarzenegger, 599 F.3d 984, 995

2 (9th Cir. 2010). This court received the mandate on September 22,

3 2010, and briefing by the parties was completed in October 2011.

4

II. Standard to Enforce or Modify Injunction

5

A district court has continuing jurisdiction to enforce its

6 own injunctions. Crawford v. Honig , 37 F.3d 485, 488 (9th Cir.

7 1994). “An injunction often requires continuing supervision by the

8 issuing court and always a continuing willingness to apply its

9 powers and processes on behalf of the party who obtained that

10 equitable relief.” System Federation No. 91 Railway Employees'

11 Dep't v. Wright, 364 U.S. 642, 647 (1961).

12

Under Federal Rule of Civil Procedure 60(b)(5), a court may

13 relieve a party from its obligations under an order of the court

14 if prospective application of the order is no longer equitable. See

15 Sys. Fed'n No. 91 v. Wright, 364 U.S. 642, 646-47. Modification of

16 an injunction, including a consent decree, is considered equitable

17 when there has been a significant change in relevant law or factual

18 circumstances. Id. at 647-48; see also Rufo v. Inmates of Suffolk

19 County Jail, 502 U.S. 367 (1992). The party seeking the

20 modification bears the burden to show that modification is

21 warranted. Rufo, 502 U.S. at 383. If it does, the court must then

22 consider whether the modification is appropriately tailored to the

23 changed circumstance. Id.

24

“A district court may refuse to modify a federal injunction

25 in light of a given state law where such a law violates federal

26 law. See Clark v. Coye, 60 F.3d 600, 605 (9th Cir. 1995). However,

6

1 merely finding that a state law conflicts with a federal

2 injunction, is insufficient to deny modification of the injunction,

3 and "clearly constitute[s] an abuse of discretion." Valdivia v.

4 Schwarzenegger, 599 F.3d 984, 995 (9th Cir. 2010).

5

III. Analysis

6

The Ninth Circuit has directed the court to determine whether

7 “any aspect of the California parole revocation procedures, as

8 modified by Proposition 9, violated constitutional rights, [and

9 whether] the Injunction was necessary to remedy a constitutional

10 violation.” Valdivia v. Schwarzenegger, 599 F.3d 984, 995 (9th Cir.

11 2010). Without such findings, the injunction must be reconciled

12 with California law as expressed in Prop. 9.

13

The starting place for determining the due process rights of

14 individuals prior to parole revocation is Morrissey v. Brewe,r 408

15 U.S. 471 (1972). There, the Supreme Court held that, although

16 parolees enjoy only “conditional liberty,” termination of that

17 liberty constitutes a “grievous loss” requiring “some orderly

18 process.” Id. at 495. The Court held that the process that is due

19 to an individual facing parole revocation includes “two hearings,

20 one a preliminary hearing at the time of his arrest and detention

21 to determine whether there is probable cause to believe that he has

22 committed a violation of his parole, and the other a somewhat more

23 comprehensive hearing prior to the making of the final revocation

24 decision.” Gagnon v. Scarpelli , 411 U.S. 778, 781-782 (1973)

25 (citing Morrisey). With respect to the preliminary hearing, the

26 parolee is entitled to an “uninvolved decision-maker;” notice of

7

1 the hearing and its purpose, including the nature of the alleged

2 violations; the ability to speak on his own behalf, present

3 letters, documents, or witnesses; the ability, in some cases, to

4 question any person who has given adverse information on which

5 parole revocation is to be based; a written summary of the

6 proceedings; and a decision on the record. Morrisey 485-487.

7

Defendants ask the court to restrict its analysis to the four

8 provisions of Prop. 9 that the court has already found to be in

9 plain conflict with the Injunction, namely § 3044(a), § 3044(a)(3),

10 § 3044(a)(2), and § 3044(b). See Valdivia, 603 F.Supp.2d at 1282.

11 Plaintiffs assert, correctly in the court’s view, that the Ninth

12 Circuit has directed the court to determine whether any provisions

13 of § 3044 violate constitutional rights.

14 A. Section 3044(a)

15 i. Whether § 3044(a) violates constitutional rights.

16

California Penal Code § 3044(a) provides:

17

Notwithstanding any other law, the Board of Parole

Hearings. . . shall be responsible for protecting victims'

18

rights in the parole process. Accordingly, to protect a

victim from harassment and abuse during the parole process,

19

no person paroled from a California correctional facility

following incarceration for an offense committed on or

20

after the effective date of this act shall, in the event

his or her parole is revoked, be entitled to procedural

21

rights other than the following...

22 Plaintiffs argue that this provision prohibits state officers
23 from implementing procedures required under due process, since
24 “Prop. 9's abbreviated list falls short of what the Due Process
25 Clause and other federal laws obligate the State to provide when
26

8

1 a parolee’s conditional liberty is at stake.” Pls.’ Mot. 7, ECF No.

2 1685. Defendants argue that the Constitution does not require any

3 additional procedural rights beyond what is provided for in § 3044.

4

§ 3044(a) provides that California parolees are entitled only

5 to an enumerated list of procedural rights that does not include

6 all of the procedures that the Supreme Court has determined to be

7 required under the Due Process Clause. Defendants argue that §

8 3044(a) merely makes clear that under California law, parolees are

9 not entitled to any process other than the Constitutional minimums.

10 Defs.’ Opp’n 13, ECF No. 1694. Defendants assert “although section

11 3044 does not exhaustively list in detail every hearing procedure

12 required by due process, it incorporates all due process

13 requirements not specifically listed in the statute through the

14 obligation to provide a ‘hearing.’” Id. Defendants’ argument is

15 untenable under a plain reading of the section. It is hard to see

16 how the words “no person. . . shall be entitled to procedural

17 rights other than the following. . .,” followed by a short

18 enumerated list can be interpreted as incorporating any procedures

19 that aren’t specifically listed. By its plain terms, Prop. 9

20 precludes reading any additional procedural rights into the

21 statute.

22

As discussed below, the listed procedures fall short of what

23 is required by federal due process. Accordingly, § 3044(a)

24 impermissibly deprives members of the plaintiff class the process

25 due under the Constitution.

26

9

1 C. Sections 3044(a)(1)and 3044(a)(2)

2 ii. Whether 3044(a)(1) and (a)(2) are unconstitutional

3

Section 3044(a) sets forth parolees’ rights with respect to

4 probable cause and evidentiary revocation hearings: “(1) A parolee

5 shall be entitled to a probable cause hearing no later than 15 days

6 following his or her arrest for violation of parole. (2) A parolee

7 shall be entitled to an evidentiary revocation hearing no later

8 than 45 days following his or her arrest for violation of parole.”

9 Plaintiffs contend that this section deprives parolees of due

10 process rights as set forth in Morrise.y Defendants assert that all

11 of those rights are incorporated into the statue by use of the word

12 “hearing.” The court has already explained why defendants’ position

13 is contrary to the plain meaning of the statute.

14

In Morrisey v. Brewer, 408 U.S. 471 (1972), the Supreme Court

15 set forth the minimum requirements of due process for probable

16 cause and revocation hearings. For probable cause hearings,

17 parolees are entitled to a hearing “conducted at or reasonably near

18 the place” of the alleged violation, “as promptly as convenient

19 after arrest”; notice that the hearing will take place and of its

20 purpose; notice of the allegations; a determination by an

21 “independent officer”; the right to speak on his own behalf and

22 bring letters, documents, and witnesses; a written summary of the

23 proceedings; and a decision based on stated reasons and cited

24 evidence. Id. at 487-88.

25

For a revocation hearing, the minimum due process requirements

26 are: “(a) written notice of the claimed violations of parole; (b)

10

1 disclosure to the parolee of evidence against him; (c) opportunity

2 to be heard in person and to present witnesses and documentary

3 evidence; (d) the right to confront and cross-examine adverse

4 witnesses (unless the hearing officer specifically finds good cause

5 for not allowing confrontation); (e) a "neutral and detached"

6 hearing body such as a traditional parole board, members of which

7 need not be judicial officers or lawyers; and (f) a written

8 statement by the factfinders as to the evidence relied on and

9 reasons for revoking parole.” Id. at 489. Additionally, the

10 revocation hearing must take place within a “reasonable time after

11 the parolee is taken into custody.” Id.

12

The bare requirements in § 3044 fall short of the minimum due

13 process set forth in Morrisey. The court need not list each element

14 missing from § 3044, 2 but they include notice, a written summary

15 of the proceedings and of the revocation decision, the opportunity

16 to present documentary evidence and witnesses, and disclosure to

17 the parolee of the evidence against him. Indeed, in this very case,

18 the court already held that “the opportunity to present documentary

19 evidence, the opportunity to present witnesses, and a conditional

20 right to confront adverse witnesses are constitutionally-required

21 components of due process.” July 23, 2003 Order 15, ECF No. 796.

22 Accordingly, the court finds that Sections 3044(a)(1)and 3044(a)(2)

23 are unconstitutional.

24

Defendants focus on the time frames set forth in these

25 2 Such a list would read almost identical to the complete list
26 of requirements already cited from Morrisey.

11

1 sections. Doing so is understandable, since the 10- and 45- day 2 time limits are the only thing guaranteed in the statute at issue. 3 Plaintiffs argue that this court has already held that 45 days is 4 an unconstitutionally long delay between the commencement of a 5 parole hold and the revocation hearing. That holding, however, was 6 in the context of a “unitary” revocation scheme–one that does not 7 include a preliminary probable cause hearing. Valdivia v. Davis , 8 206 F. Supp. 2d 1068, 1078 (E.D. Cal. 2002). In the scheme under 9 review at the time, “at no time prior to the unitary revocation 10 hearing d[id] parolees have an opportunity to present their 11 position to an independent decision-maker or to challenge, in any 12 manner, whether the parole officer had probable cause for the 13 parole hold and resulting detention.” Id.at 1071. In that context, 14 this court held “California's system allowing a delay of up to 15 forty-five days or more before providing the parolee an opportunity 16 to be heard regarding the reliability of the probable cause 17 determination does not” meet constitutional muster. Id. at 1078. 18 The court has never held that forty-five days exceeds 19 constitutional limits when a Morrise-ycompliant preliminary hearing 20 has been held in the interim. In Morrisey itself, the Supreme Court 21 held that “a lapse of two months, would not appear to be 22 unreasonable” for a revocation hearing when a preliminary hearing 23 has been held promptly after arrest. Morrisey , 408 U.S. at 489. 24 However, as noted, the revocation scheme at issue here does not 25 guarantee a prompt probable cause hearing with all of the minimum 26 process set forth in Morrisey.
12

1

Accordingly, the court concludes that §§ 3044(a)(1) and

2 3044(a)(2) violate the constitution because they deprive parolees

3 of the procedural rights guaranteed in Morrisey.

4 iii. Whether the Injunction is necessary with respect to §

5 3044(a)(1) and (a)(2)

6

As noted by the Ninth Circuit in this case, “the scope of

7 federal injunctive relief against an agency of state government

8 must always be narrowly tailored to enforce federal constitutional

9 and statutory law only.” Valdivia , 599 F.3d at 995 (internal

10 citation omitted). The narrow tailoring requirement, however, does

11 not deprive a district court of its “substantial flexibility” to

12 craft remedies once constitutional violations are found. Brown v.

13 Plata, 131 S. Ct. 1910, 1944 (2011). Injunctive relief “does not

14 fail narrow tailoring simply because it will have positive effects

15 beyond the plaintiff class. . . A narrow and otherwise proper

16 remedy is not invalid simply because it will have collateral

17 effects.” Id. at 1940. See alsoMilliken v. Bradley, 433 U.S. 267,

18 281-82 (1977)(“The well-settled principle that the nature and scope

19 of the remedy are to be determined by the violation means simply

20 that federal-court decrees must directly address and relate to the

21 constitutional violation itself. . . But where. . . a

22 constitutional violation has been found, the remedy does not

23 ‘exceed’ the violation if the remedy is tailored to cure the

24 condition that offends the Constitution.”). In addition, the court

25 should account for practical consideration when crafting its

26 remedy. Matthews v. Eldridge, 424 U.S. 319 (1976).

13

1

The Injunction at issue here provides for the following

2 procedure with respect to preliminary and revocation hearings:

3 within 3 days of incarceration in a parole hold, the parolee will

4 be served with actual notice of the alleged violation, including

5 a short factual summary of the charged conduct and written notice

6 of the parolee’s rights regarding the revocation process and

7 timeframes; within 10 days after the parolee has been served with

8 a notice of the charges, defendants shall hold a hearing to

9 determine whether there is probable cause, unless the parolee

10 waives or seeks a continuance of the probable cause hearing; within

11 35 days of the placement of the parole hold, defendants shall

12 provide a final revocation hearing.

13

Plaintiffs argue that the 35-day outer limit for a probable

14 cause hearing was negotiated by the parties in exchange for other

15 aspects of the overall scheme, including a truncated probable cause

16 hearing. For the reasons already discussed, plaintiffs assertion

17 that this court already held 45 days to be unreasonable fails. In

18 Morrisey, the Court found expressly that two months is not an

19 unreasonable delay for completing a revocation hearing, assuming

20 all of the other due process requirements are met, including a

21 probable cause hearing within ten days.

22

Accordingly, the court finds that the injunctive measures are

23 necessary to remedy constitutional violations created in §

24 3044(a)(1) and (a)(2), except that defen dants shall provide a

25 revocation hearing no later than the 45th calendar day after the

26 placement of the parole hold. Injunction ¶¶ 11(b)(iv)and 23 are

14

1 modified accordingly to reconcile with 3044(a)(2)’s 45-day time

2 limit.

3 C. § 3044(a)(3)

4 i. Whether Section 3044(a)(3) violates constitutional rights

5

Section 3044(a)(3) provides that parolees are entitled to

6 counsel at the state’s expense on a case-by-case basis, and only

7 if the parolee is indigent and appears incapable of speaking

8 effectively in his or her own defense, given the complexity of the

9 issues and the parolee’s mental capacity. Plaintiffs argue that in

10 the context of California’s parole revocation system, this

11 provision falls below the minimum requirements for appointment of

12 counsel set forth in Gagnon v. Scarpelli, 411 U.S. 778 (1973).

13

In Gagnon, the Supreme Court held that “the need for counsel

14 must be made on a case-by-case basis in the exercise of sound

15 discretion by the state authority charged with the responsibility

16 for administering the. . . parole system.” Id.at 790. Although the

17 Court declined to adopt a “new inflexible Constitutional rule,” it

18 held that there is a presumptive right to counsel

19

“in cases where, after being informed of his right to

request counsel, the probationer or parolee makes such a

20

request, based on a timely and colorable claim (i) that he

has not committed the alleged violation of the conditions

21

upon which he is at liberty; or (ii) that, even if the

violation is a matter of public record or is uncontested,

22

there are substantial reasons which justified or mitigated

the violation and make revocation inappropriate, and that

23

the reasons are complex or otherwise difficult to develop

or present. In passing on a request for the appointment of

24

counsel, the responsible agency also should consider,

especially in doubtful cases, whether the probationer

25

appears to be capable of speaking effectively for himself.”

26

15

1 Id. at 790-91.

2

Although the Court emphasized that “considerable discretion

3 must be allowed the responsible agency in making the decision”

4 about whether to appoint counsel, Section 3044(a)(3) falls short

5 of the due process requirements set forth in Gagno.n For one thing,

6 § 3044(a)(3) limits the restricts the discretion of the responsible

7 agency, contrary to Gagnon’s holding that the agency be given 8 “considerable” discretion.3

9

Second, Gagnon requires that a parolee be “informed of his

10 right to request counsel.” Section 3044(a)(3) contains no such

11 requirement, and, read in conjunction with § 3044(a), parolees

12 would be deprived of the right to notice of the right to counsel

13 because it is not specifically mentioned in the statute.

14

Third, Gagnon provides for a presumptive right to counsel when

15 the parolee makes a colorable claim that he has not committed the

16 alleged violations or claims colorable mitigation. Section

17 3044(a)(3) precludes a right to counsel in such cases, unless the

18 parolee appears incapable of speaking effectively in his own

19 defense, given the complexity of the charges and defenses.

20 ii. Whether the Injunction is necessary with respect to §

21 3044(a)(3)

22

Having held that § 3044(a)(3) violates constitutional rights,

23

24

3 It might be argued that the Injunction also restricts the

discretion of the agency by requiring the appointment of counsel 25 for all parolees facing revocation. However, this restriction of

the agency’s discretion does not present the constitutional due 26 process problem that § 3044(a)(3) does.

16

1 the court turns to whether the relevant provisions in the

2 Injunction are necessary to remedy this violation. As noted above,

3 the court has substantial flexibility when ordering injunctive

4 measures to remedy constitutional violations, so long as the

5 measures are narrowly tailored, and address and relate to the

6 violation.

7

The Injunction requires appointment of counsel for all

8 parolees beginning at the Return to Custody Assessment (“RTCA”)

9 stage of the parole revocation proceeding. Inj. ¶ 11(b)(I). While

10 this provision is in excess of what is required by the

11 Constitution, as interpreted in Gagnon, it may still be that, in

12 the context of California’s parole revocation system, the provision

13 is necessary in order to ensure compliance with the Constitution.

14

In this case, plaintiffs argue that appointment of counsel to

15 all parolees at the RTCA stage is necessary because under

16 California’s scheme, implementation of the Gagnon case-by-case

17 determination is impracticable. Plaintiffs assert, in declarations

18 and through other evidence, that case-by-case determination of who

19 was entitled to counsel under the Americans with Disabilities Act

20 caused long delays before probable cause hearings were held. For

21 example, plaintiffs’ counsel heard from parolees who had been held

22 for more than 200 days without a hearing because of the backlog

23 created by case-by-case determinations for appointment of counsel.

24 See Huey Decl., Ex. W ¶76. Additionally, plaintiffs cite a 2003

25 Inspector General’s report, which states “given the State’s

26 inability to readily identify parolees eligible for Americans with

17

1 Disabilities Act accommodation, it is doubtful that the pre-

2 revocation hearings can be conducted within mandatory time limits.

3 On the contrary, adding another time-consuming procedure into an

4 already cumbersome and convoluted process could cause significant

5 additional delays.” Huey Decl., Ex. H at 32.

6

Plaintiffs explain that the Injunction’s provision of counsel

7 for all parolees solved the problem of unconstitutionally long

8 delays in the hearing process without creating another

9 Constitutional violation of denying counsel to those entitled to

10 it.

11

The court finds that ¶ 11(b)(I) of the Injunction is a

12 properly tailored remedy, aimed at curing violations of due process

13 rights articulated in Gagnon. The remedy addresses and relates to

14 a Constitutional violation, specifically, Prop. 9's deprivation of

15 a parolee’s right to receive notice of his right to counsel, and

16 deprivation of counsel for parolees who have colorable claims that

17 they did not commit the alleged violation or of mitigation. The

18 fact that the Injunction will have the collateral affect of

19 providing counsel to parolees who might not be entitled to it under

20 the minimum due process requirements does not render the injunction

21 invalid. See Brown v. Plata, 131 S. Ct. at 1940.

22 D. Section 3044(b)

23 ii. Whether § 3044(b) is unconstitutional

24

Section 3044(b) provides:

25

The board is entrusted with the safety of victims and the

public and shall make its determination fairly,

26

independently, and without bias and shall not be influenced

18

1

by or weigh the state cost or burden associated with just

decisions. The board must accordingly enjoy sufficient

2

autonomy to conduct unbiased hearings, and maintain an

independent legal and administrative staff. The board shall

3

report to the Governor.

4

Previously, this court held that this section conflicted with

5 the Injunction because the Injunc tion, through the incorporated

6 Remedial Plan “provides that the defendants will utilize remedial

7 sanctions in lieu of initiating the parole revocation procedures

8 where appropriate.” Valdivia 603 F.Supp. 1283. The court noted that

9 “the decision to refer a parolee to a remedial sanction program is

10 informed, at least in part, by the goal of reducing the custodial

11 burden on the state. . . Section 3044(b) appears to conflict with

12 this goal” because it strips the parole board of the right to take

13 into consideration the cost and burden of re-imprisonment of

14 parolees. Id.

15

Defendants insist that there is no conflict between the

16 statute and the injunction because neither the Injunction nor the

17 Remedial Plan addresses which factors the Board should consider in

18 deciding whether remedial sanctions are approp riate in any given

19 case. Defs.’ Memo in Supp. of Mot. to Modify Injunction 9, ECF No.

20 1681. The court continues to conclude that § 3044(b) conflicts with

21 the stated goal of the Remedial Plan to reduce the number of prison

22 returns.

23

Additionally, § 3044(b) violates the Constitution. Morrisey

24 calls for a “neutral and detached” hearing body to make parole

25 revocation decisions. Morrissey at 489. See also

26 O'Bremski v. Maass, 915 F.2d 418, 423 (9th Cir. 1990)(The task of

19

1 parole board officials is “functionally comparable to those

2 performed by the judiciary.”)

3

The court agrees with plaintiff that § 3044(b) violates

4 parolees right to a neutral decision-maker “by placing a thumb on

5 the scales of justice and

tipping the balance towards

6 incarceration.” Pls.’ Opp’n to Mot. to Modify the Injunction 15,

7 ECF No. 1695. Under Morrisey, a neutral decision-maker is required

8 for determining both whether a parole violation has occurred, and

9 determining what will happen to the parolee after a violation has

10 been found. By entrusting the Board only with the safety of victims

11 and the public, § 3044 strips the Board of its duty to balance

12 those factors with a parolee’s liberty interest, which is the duty

13 of neutral decision-maker in this context.

14

Moreover, the Supreme Court recently articulated a

15 Constitutional requirement with respect to California’s prisons.

16 In Brown v. Plata , 131 S. Ct. 1910 (2011), the Court found that

17 severe overcrowding in California prisons is the primary cause of

18 persistent constitutional violations, “specifically the severe and

19 unlawful treatment of prisoners through grossly inadequate

20 provision of medical and mental health care.” Id.at *4. The Court

21 affirmed a remedial order requiring

California to reduce

22 overcrowding in its prisons in order to remedy the constitutional

23 violations. Although the injunction affirmed by the Court leaves

24 “the choice of means to reduce overcrowding to the discretion of

25 state officials,” such as new construction or sending prisoners out

26 of state, the Court noted that the State was likely to be required

20

1 to reduce the overall prison population by up to 46,000 prisoners.

2 Id. at *2-3. Section 3044's requirement that the parole board not

3 take into consideration the cost and burdens to the state

4 associated with re-incarceration of parole violators violates the

5 requirement from Plata that California work towards reducing its

6 prison population.

7

No provision currently in the Injunction explicitly remedies

8 the constitutional violation created by § 3044(b), although the

9 defendants remain b ound by Morrisey ’s requirement for a neutral

10 decisionmaker in probable cause and parole revocation hearings.

11 E. Hearsay Evidence in Revocation Hearings

12 i. Whether Sections 3044(a)(5) and (a)(6) violate the

13 Constitution

14

In the March 2009 order, this court held that § 3044(a)(5) and

15 (a)(6) could be construed in a way so as not to conflict with the

16 Injunction.

17

Section 3044(a)(5) reads: “Parole revocation determinations

18 shall be based upon a preponderance of evidence admitted at

19 hearings including documentary evidence, direct testimony, or

20 hearsay evidence offered by parole agents, peace officers, or a

21 victim.” The March 2009 order stated that this section could be

22 reasonably construed “as setting forth a non-exhaustive list of

23 evidence that may be relied on if it is admitted.” Valdivia , 603

24 F.Supp.2d at 1283. Use of the word ‘including’ indicates that the

25 list that follows is non-exhaustive, and that other types of

26 evidence may be considered. The court now reconsiders its

21

1 conclusion that § 3044(a)(5) does not conflict with the Injunction.

2 Because § 3044(a)(5) allows the use of unconditional hearsay

3 evidence in parole revocation hearings, and the Injunction

4 specifies that the use of hearsay is governed by applicable law,

5 the court now concludes that there is a conflict.

6

Section 3044 (a)(6) reads: “Admission of the recorded or

7 hearsay statement of a victim or percipient witness shall not be

8 construed to create a right to confront the witness at the

9 hearing.” The March 2009 Order held that “section 3044(a)(6) may

10 reasonably be read to provide that the admission of hearsay

11 evidence against the parolee does not alone create a confrontation

12 right. . . [but that] the admission of hearsay evidence itself is

13 guided by the confrontation right.” Valdivia 603 F.Supp.2d at

14 1284. In other words, hearsay is only admissible in the first place

15 after weighing the confrontation right against other

16 considerations.

17

Although the court did not, in the March 2009 Order, reach the

18 question of whether 3044(a)(5) and (a)(6) violate the Constitution,

19 the Ninth Circuit now directs the court do determine whether any

20 provision of Prop. 9 violates the Constitution.

21

Section 3044(a)(5) allows the un conditional use of hearsay

22 evidence in parole revocation hearings. Morrissey

guaranteed

23 parolees’ “right to confront and cross-examine adverse witnesses

24 at a revocation hearing, unless the government shows good cause for

25 not producing the witnesses.” United States v. Comito , 177 F.3d

26 1166, 1170 (9th Cir. 1999). “In determining whether the admission

22

1 of hearsay evidence violates the releasee's right to confrontation

2 in a particular case, the court must weigh the releasee's interest

3 in his constitutionally guaranteed right to confrontation against

4 the Government's good cause for denying it.” Id.Section 3044(a)(5)

5 does not permit balancing of these interests. Accordingly, it

6 violates the Constitution.

7

As to § 3044(a)(6), applying the principle that the court must

8 construe a statute to avoid a constitutional infirmity so long as

9 such construction is not ‘plainly contrary’ to the intent of the

10 legislature, Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg &

11 Constr. Trades Council, 485 U.S. 568, 575 (1988), the court now

12 holds that §3044 (a)(6) does not violate the Constitution. As noted

13 above, a reasonable construction of § 3044(a)(6) does not strip a

14 parolee of his Constitutional confrontation right. It simply states

15 that the introduction of hearsay evidence does not itself “create”

16 a confrontation right.4

17 ii. Whether the Injunction is necessary to remedy the violation

18

Paragraph 24 of the Injunction provides: the use of hearsay

19 evidence shall be limited by the parolee’s confrontation rights in

20 the manner set forth under controlling law as currently stated in

21 United States v. Comito. . .”

22

Defendants do not, and could not argue that an injunctive

23
4 This construction might give rise to the argument that the court has
24 reduced § 3044(a)(6) to mere surplusage. Indeed, courts must be “reluctant to
treat statutory terms as surplusage.” Duncan v. Walker, 121 S. Ct. 2120, 2125
25 (2001). That reluctance is overcome, however, by the constitutional avoidance
mandate articulated in Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg &
26 Constr. Trades Council, 485 U.S. 568, 575 (1988).

23

1 measure that simply incorporates prevailing constitutional law is

2 beyond the scope of the court’s discretion. The court concludes

3 that ¶ 24 of the Injunction is necessary to remedy the

4 constitutional violation created by § 3044(a)(5)’s allowance for

5 unconditional use of hearsay evidence.

6 F. Whether § 3044 is Severable

7

Having found that §§ 3044(a), 3044(a)(1), 3044(a)(2),

8 3044(a)(3), 3044(a)(5), and 3044(b) violate the Constitution, the

9 court turns to whether the statute may be severed, preserving the

10 non-offending provisions.

11

Federal courts apply state law governing severability when

12 determining whether a state statute is severable. See, e.g.,

13 Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 506 (U.S. 1985).

14 Under California law, a state statute, including one passed by

15 initiative such as Prop. 9, is severable if the invalid provision

16 is “grammatically, functionally, and volitionally separable.”

17 Calfarm Ins. Co. v. Deukmejian, 48 Cal. 3d 805, 821 (Cal. 1989).

18 See also, Qwest Communs., Inc. v. City of Berkeley, 433 F.3d 1253

19 (9th Cir. 2006) (“Under California law, the presence of a

20 severability clause coupled with the ability functionally,

21 mechanically, and grammatically to sever the invalid portion from

22 the valid portions of an enactment ordinarily will allow severance

23 but only if the remainder of the enactment is complete in itself

24 and would have been adopted without the invalid portion.”).

25 "Partial invalidation [of a state statute] would be improper if it

26 were contrary to legislative intent in the sense that the

24

1 legislature had passed an inseverable Act or would not have passed

2 it had it known the challenged provision was invalid." Brockett v.

3 Spokane Arcades, Inc., 472 U.S. 491, 506 (U.S. 1985).

4

Proposition 9 does include a severability clause, which

5 provides:

6

“If any provision of this act, or part thereof, or the

application thereof to any person or circumstance is for

7

any reason held to be invalid or unconstitutional, the

remaining provisions which can be given effect without the

8

invalid or unconstitutional provision or application shall

not be affected, but shall remain in full force and

9

effect.”

10 November 4, 2008 Voter Information Guide (“Voter Information

11 Guide”) § 8, Ex. 1 to Def.’s Request for Judicial Notice, ECF No.

12 1682. But such a clause is not dispositive; the court must look to

13 whether the invalid portions are “grammatically, functionally, and

14 volitionally separable” from what would remain.

15

If these provisions are severed, the only remaining text of

16 § 3044 would read:

17

(4) In the event the parolee's request for counsel, which

shall be considered on a case-by-case basis, is denied, the

18

grounds for denial shall be stated succinctly in the

record.

19

(6) Admission of the recorded or hearsay statement of a

victim or percipient witness shall not be construed to

20

create a right to confront the witness at the hearing.

21 This text is not “complete in itself,” and would certainly not have

22 been adopted by the voters on its own without the invalid portions.

23 Prop. 9, or “the Victims’ Bill of Rights Act” was passed by

24 California voters in order to “provide victims with rights to

25 justice and due process [and to] invoke the rights of families of

26 homicide victims to be spared the ordeal of prolonged and

25

1 unnecessary suffering, and to stop the waste of millions of

2 taxpayer dollars. . .” Voter Information Guide § 3. The remaining

3 text does not serve this, or any, purpose. Section § 3044(a), which

4 this court holds to be invalid, attempts to limit the procedural

5 rights to those listed in the sections that follow it. Without §

6 3044(a), which states “no person paroled from a California

7 correctional facility. . . shall. . . be entitled to procedural

8 rights other than the following...” the remaining text of § 3044

9 is meaningless. Accordingly, the invalid provisions are not

10 “volitionally” separate from the remaining portions, and no portion

11 of the statute can be preserved through severing.

12

IV. Conclusion

13

For the foregoing reasons, the court ORDERS as follows:

14

[1] Defendant’s Motion to Enforce Penal Code § 3044 and

15

to Modify the Permanent Injunction, ECF No. 1680, is

16

DENIED, except that Injunction ¶¶ 11(b)(iv)and 23 are

17

modified to reflect that defendants shall provide a

18

revocation hearing no later than the 45th calendar day

19

after the placement of the parole hold.

20

[2] Plaintiff’s Motion to Enforce the Injunction, ECF

21

No. 1684, is GRANTED, except that the injunction is

22

modified as stated above.

23

IT IS SO ORDERED.

24

DATED: January 23, 2012.

25

26

26

 
 1

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

8

EASTERN DISTRICT OF CALIFORNIA

9

10 JERRY VALDIVIA, ALFRED YANCY, and HOSSIE WELCH, on their own
11 behalf and on behalf of the class of all persons similarly situated,
12 Plaintiffs,
13 v.
14 EDMUND G. BROWN, JR., Governor of
15 the State of California, et al.,

NO. CIV. S-94-671 LKK/GGH O R D E R

16

Defendants.

/

17

18

The court is in receipt of the Twelfth Report of the Special

19 Master (ECF No. 1750), defendant’s Response (ECF No. 1751),

20 plaintiffs’ Reply to the Response (ECF No. 1753), defendant’s

21 Response to the Reply (ECF No. 1754), and plaintiffs’ Request to

22 Strike the Sur-Reply (ECF No. 1755).

23

The court adopts the Twelfth Report and orders it filed. The

24 court notes the parties’ dispute about the report’s use of the

25 phrase “state-supervised parolees” to refer to parolees who are

26 incarcerated in the county system. By permitting the filing of the

1

1 Twelfth Report, the court does not in any way prematurely decide

2 the status of these parolees with respect to this litigation.

3

The court adopts the recommendations of the Twelfth Report.

4

IT IS SO ORDERED.

5

DATED: April 20, 2012.

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

2

 
 1

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

8

EASTERN DISTRICT OF CALIFORNIA

9

10 JERRY VALDIVIA, ALFRED YANCY, and HOSSIE WELCH, on their own
11 behalf and on behalf of the class of all persons similarly situated,
12 Plaintiffs,
13 v.
14 EDMUND G. BROWN, JR., Governor of
15 the State of California, et al.,

NO. CIV. S-94-671 LKK/GGH O R D E R

16

Defendants.

/

17

18

The court is in receipt of the Eleventh Report of the

19 Special Master, ECF No. 1730, filed on December 15, 2011. No

20 objections were filed. Due to court error, the Eleventh Report

21 has not yet been adopted by the court. The court has considered

22 the report and ADOPTS its findings and recommendations in full.

23 Accordingly, the court ORDERS as follows:

24

[1] The following requirements are substantially

25

compliant, and the subjects will therefore no longer

26

be a primary focus of Plaintiffs’ or the Special

1

1

Master’s monitoring unless they are inextricably

2

linked with review of the hearing process or the

3

remedial sanctions obligations of the Permanent

4

Injunction, or arise in the course of investigating an

5

individual parolee’s situation. These items will

6

remain in this status unless and until it comes to the

7

parties’ or the Special Master’s attention that there

8

has been a significant decline in compliance. These

9

orders should apply to the following requirements:

10

a) On or before the fourth business day [after

11

notice of charges is served] the Unit Supervisor

12

must review the report and (1) determine if there

13

is sufficient basis for the revocation to go

14

forward; (2) determine if the report is accurate,

15

complete, and contains the correct Title 15

16

violation sections; and (3) consider whether

17

remedial sanctions/community based treatment is

18

appropriate (Remedial Plan at 3)

19

b) On or before the fifth business day [after

20

notice of charges is served], the revocation

21

packet is forwarded to the decentralized

22

revocation unit where the parolee is being held.

23

(Remedial Plan at 4)

24

c) Defendants shall appoint counsel for all

25

parolees beginning at the Return to Custody

26

Assessment stage of the revocation proceeding.

2

1

(Injunction ¶11(b)(i))

2

The substantial compliance finding applies to all

3

locations except Richard J. Donovan Correctional

4

Facility and California Institution for Men; they will

5

remain subject to monitoring on this requirement.

6

[2] Defendants SHALL report the status of these

7

requirements to all parties every six months,

8

beginning on July 8, 2012.

9

IT IS SO ORDERED.

10

DATED: June 21, 2012.

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

3

 
 .,FEB,26,2004

, t;.:" -... , r I J • (

,

,

2:22PM
11

BINGHAM MCCUTCHEN - SF

NO, 4874 P,2/18
.,---~ -"0,,"- •

2

4
5
6
7
t3
UNITED STATES DISTRICT COURT
9
EASTERN DISTRICT OF CALIFORNIA
10

VINCENT CERVANTES, etc., et al.,
Plaintiffs,
v.
14
STATE OF CALIFORNIA, et al.,
15 _________D__ef_e_n_d_a_n_ts_.____________1
16

NO. elV. S-94-671 LKK\GGH
o R D i...B

17
This ~atter is before the court on plaintiffs' motion for

18
class c~rtification.

Following hearihg on the motion on

19
September 6, 1994, the court ordered further briefing on issues of

.20
standing and mootness. Pursuant to the Order filed on Novembel;' 14,

21
1994, 1 now resolve the outstanding jurisdictional question and

22
certify the class accordingly.

23 I

24
:QACIGBOtnm

25
Plaintiffs, eik individuals and the Prisoners' Rights Union,

26
bring this suit for declaratory relief and prospeotive injunctive

AO 72
(f1~v 6/62l

1
7~

,FEB, 26, 2004 2: 22PM

. """".. ,".,

:~ , .

',I

.' , ,

·BINGHAM MCCUTCHEN - SF

NO, 4874 P,3/18

relief pursuant to 42 U.S.C. S 1983 against the State of
2
california, Governor Wilson, and state correctional officials.
3
Plaintiffs contend that the state's parole 'revocation procedures
4
violate the Fourteenth Amendment. The Complaint alleges violations
5
of the requirements of Morrissey v. Brewer, 408 U.S. 471 (1972)
6
(due process) and Cagnon y. Scarpelli, 411 U.S. 778 (1973) (right
7
to coUnsel).l

Plaintiff Vincent Cervantes, currently on parole, has had his
9
parole revoked twice in the past. Cervant.es was denied counsel at
10
his revocation hearings. Plaintiff Isaac CUbillos vas discharged

1 1

from parole on June 7, 1994. CUbillos previously served a

i2.

revocation tenn on a plea bargain. Plaintiff Jerry Valdivia, long

13

.----

addicted to drugs I has had his parole revoked four times. He
14

accepted several plea bargains on parole violation charges without

15
receiving treatment for addiction. Currently on parole, Valdivia's

16
max~um te~ of parole will not eXpire until 1997.

'7
Plaintiff steven williams was released from prison and parole

18
on June 9, 1994. Williams was held for three months on an allegea

19
violation of parole after his acquittal on criminal charges based

20
on the salne qrounds. Defendants did not allow Williams to be

21
represented by an attorney in revocation proceedingsI althouqh

22
plaintiff had found an attorney willing to do so. Plaintiff Hossie

23

24

1 Specific allegations include: unfair re-arrest procedure;

denial of prompt preliminary hearings; lack of timely written

25 notice of charges; denial of counsel; hearings before non-neutral

hearing body; lack of opportunity to investiqate, present

26 testi~ony, and confront witnesses; unfair plea bargaining;

arbitrary final revocation decisions;. and di&regard for potential

dispositions other than return to prison.

'-'

11.072

2

(RQv 6162)

.FEB. 26. 2004 2: 23PM BINGHAM MCCUTCHEN - SF

NO. 4874 P.4/)8

' ..

,'-- .

Welch, cUrrently on parole, was incarceratQ~ for violatinq parole
2
although he was round not guilty of criminal charges arising from
3
thQ same incidents. Welch was denied counsel at the revocation
4
hearing. Plaintiff Alrred yancy also ha~ his parole revoked
5
without benefit of counsel, and is currently serving the parole
6
violation tQrm. Yilncy expects to be released from prison on
7
December 7, 1994.
t1
Plaintiff Prisoners' Rights Union has a membership of
9
approximately B, 900 people. The organization has one or more
10
members in each of the follo\o1ing situations: on parole, in custody
1 1
12 ! on alleged parole violations while awaiting possible revocation, '3 II or serving a prison sentence upon a parole violation.

The class plaintiffs seek to certify consists of (1)

""--~

,.::

California parolees at large; (2) California parolees in custody,

'5
as alleged parole violators, and who are awaiting revocation of

16
their state parole; and (3) California parolees who are in custody,
17
having beQn found in violation of parole and who have been
18
thereupon sentenced to prison custody. This court has already

'9
rUled that the requirements of Federal Rule of Civil Procedure 23

20
are satisfied. ~ Order filed November 14, 1994. certification

2' was delayed pendihg determination of the standing and mootness

22
challenges resolved herein.

23
ll:

24
BTMJDPDS

25
Standing to litigate is a necessary cOlllponent of a justiciable

26
"case or controversy" within the meaning of Article III. Lujan y,

3
AO 72
(Rev 8/621

,FEB, 26, 2004 2: 23PM . BINGHAM MCCUTCHEN - SF

.'

I.

NO, 4874 P,5/)8

'",-

pefenders of Wildlife, 504 U.S. __ , 112 S. Ct. 2130, 2136 (1992).

2
The party invoking federal jurisdiction bears the burden of

3
establishing standing. Lu1an, 112 S. ct. at 2136. The "manner and

4

degree of evidence" required to show standing varies according to

5
the stage of litigation. ~ at 2136.

6

At the pleading stage, qeneral factual

7

allegations of injury resulting from the

defendant's conduct may suffice, for on a

8

motion to dismiss we "presum[e] that general

a.llegations embrace t.hose specific facts that

9

are necessary to support the claim."

,0
~ at 2137, quoting Lujan y. National Wildlife Federation, 497

11

U.S. 871, 889 (1990).

! 12.

Generally, plaintiffs must establish standing as of the date

13

the action is filed. ~ £!ckus y. Unit.ed States Bd. of Parole,

,--,'

14

543 F.2d 240, 242 n.3 (D.C. cir. 1976). In elass action suits,

15
named plaintiffs must also have standing when the class is

16 certified. Sosna y. Iowa, 419 u.s. 393, 402 (1975). In addition,

17
the named plaintiff tnust be "a member of the class he or she seeks

18
to represent at the tiDle the class action is certified by the

19
district court." Sosna, 419 U.S. at 403. Since the class in this

20
case has not yet been certified, the court analyzes the standing

21
of the nalned plaintiffs and not the class as a whole. Nelsen Y,

22
King County, 895 F.2d 1248 (9th Cir. 1990).

23

24
STANDING
25
A. Actual or Imminent Injury
26
n[I)njury in fact" is the first.element of the "irreducible

AO 72.

4.

(Flel/SI821

FEB. 26. 2004 2: 23PM
. ,

BINGHAM MCCUTCHEN - SF

NO. 4874 P. 6/18

'-.",

constitutional minimum of standing." Luian, 112 5. Ct. at 2136.

2
Plaintiffs must plead an actual or imJainent injury; "speculative"

3
injuries are insufficient to confer standing. ~ at 2136.

4
standing may nonetheless be found on the basis of impending
5
injuries as well as present harms. ~ Resources Ltd' 4 Inc. y.
6
Robertson, 8 F.ld 1394, 1398 (9th Cir. 1993) (amended on other

7
grounds) (concluding that l!Y.iu does not "materially alter the
t3

standing principles which previously appliedU ); Los Angeles y.
9

Lyons, 461 U.S. 95, 102, 105 (1983).2
10
Defendants argue that plaintiffs' claims are i~permissibly

11

speculative, citing City of Los Ahgeles v. Lyons, 461 U.S. 95
12

(1983) • They contend that it is uncertain when and if the
13

plaintiffs will undergo the parole revocation procedures complained

'----

14

of. In assess Ing whether a threat of future injury i5 too

15
speculative to establish standing, the court must oonsider several

16
factors, including plaintiffs' personal interest in the litigation

17
and the likelihood of :recurrence. Nelsen v. King County, 895 F.2d

18
1248, 1250-51. (9th Cir. 1990). The burden in this regard is on the

19
plaintiffs. IQ.:. at 1251. The probability of injury should not be

20 assessed meraly in quantitative terms, nor exclusively on the basis

21
of past harms. ~ at 1251.

22 I hOW apply these principles to plaintiffs Cervantes,

23

24

25

26

2 See ~ Seattle Audubon soe'y y. Espy, 998 F.2d 699, 703

(9th cir. 1993); Portland Audubon Soo'y y, Bapbitt, 998 F.2d 705

(9th Cir. 1993).

5
AD 72 (Re... elB21

FEB. 26. 2004 2:23PM BINGHAM MCCUTCHEN - SF

...

I

NO. 4874 P. 7/18

........,.
.~.
..........

Valdivia, Welch, and Yancy. 3 When the complaint was riled on
2
September 6, 1994, plaintiffs Valdivia and Welch were on parole,
:3
and Cervantes was serving a parole revocation te~. All three
4
plaintiffs are apparently now on parole. On September 6, 1994,
5
Yancy was serving a parole violation term; he is scheduled to be
6
released to parole on Deoember 7, 1994. Yancy's status at that
7
ti~e will be identical to that of Cervantes, Valdivia, and welch. 4
a
These plaintirfs base their standing on the threat of future
9
injury from a systematically defective parole revooation procedure.
10
Defendants characterize such injury as speculative, but plaintiffs
, 1
argue that their likelihood of injury is subst.antial. For
12
plaintiffs' threatened injury to occur, the parolees must be
'3 accused of violating terms of their paroles or of violating the
14
law, and consequently be subjected to the revocation procedure. 5
15
Plaintiffs assert that denial of due process mars the revocation
16
procedure as a whole, beginning with arbitrary deoisions to re-
17
arrest for parole violation and continuing through the OepartmentI s
18
final decision regarding revocation. As parolees within the
19
ongoing jurisdiction of the Department of Corrections, plaintiffs
20

21
3 Plaintiffs Cubillos and Williams clearly lack standing, for 22 they have been discharged from parole and thus are not ~embers of
the class at the time of certification. See Sosna y. Iowa, 419
23 U.S. 393, 403 (1975).

24

4 By this lawsuit, Yancy does not challenge his current

commit~ent, but rather, like other plaintiffS, seeks prospective

2S injunotive relief to restrQcture the revocation procedure.

26

S Of course, exposure to the revocation procedure precedes

any determination that parolees aotually violated terms of their

parole or the criminal law .

6
AO 72 (Rev 9/62)

FEB. 26. 2004 2: 24PM BINGHAM MCCUTCHEN - SF

NO. 4874 P.8/18

'--

ar~ uniquely sUbject to the procedures they challenge.
2
The parolees' relationship to defendants and to the
3
correctional system they direct is comparable to the structural

4

relationship between plaintiffs and defendants in LaDuke v. Nelson,

5

762 F.2d 1318 (9th Cir. 1985) (modified on other qrounds). In

6

LaDuke, a class of migrant farm dwelling residents was found to

7

have standing to seek an injunction against warrantless INS
e

searches of their homes. The court observed that it was class

9

members' status as residents of migrant farm housing that exposed

10

them to the threat of future injury. LaDuke, 762 F.2d at 1324-26.

11

I Similarly I plaintiffs here are uniquely and directly subject to the

",2 "'' procedures they challenge by virtue of their status as parolees.

13 / See Ramer y. Saxbe, 522 F.2d 695, 703 (D.C. Cir. 1975) ("Whether

''---"

1...

actually incarcerated or in parole or mandatory release status, the

15
appellants continue subject to the rules and regulations of the

16
Bureau of Prisons.").

17
Plaintiffs allege that in each of the last seven years, on

18
average, more than 50t of persons on parole have been returned to

19 p~ison as parole violators. 6 Plaintiffs assert that in a recent

20
year, the successful completion rate of parole in California was

21
19%, and further, that California has one of the lowest -- if not

22
the lowest -- parole success rates of any state in the nation.'

23
A recent state report notes that the number of parole revocations

24
ttis increasing at a rate far in excess of increases in prison or

25

26

6 See Complaint! 52.

\'--_.

AO 72 (Rev 8/92)

7 ~ Complaint! 53.
7

.FEB.26.2004 2:24PM BINGHAM MCCUTCHEN - SF

NO. 4874 P.9/18

-.... ... ~
parole population. ,,8 The rates for felon parolees returned to
2 prison in 1983 through 1992 exceeded 50% in six of those years. 9
3
While the probability of injury may nO.t be assessed merely in
4
quantitative terllls, Ne.ll!en y. KiM County, 895 F. 2d 1248, 1251. (9th
5
Cir. 1983), these quanti~ative indicators are one factor the court
6
may consider in its analysis of the likelihood of future injury.
7
These statistics illustrate the unique degree to Which
B
parolees are subject to the challenged revocation procedures.
9
Parolees are, by definition, already subject to defendants'
10
oversight and control. Consequently, they are far more likely to
11
experience recurrent injuries than are plaintiffs who have

attempted to challenge practices that only randomly affect members

of the general public.

14
For example, citi2ens did not ha~e standing, on the basis of

15
threatened injury, to seek injunctive relief against a maqistrate

16
and state judge ~ho allegedly violated their constitutional rights

17
as criminal defendants. O'Shea v. Littleton, 414 U.S. 488, 496

18
(1974). The Court concluded that for their injUry to materialize,
19
the citizens would h~d to have been charged with violatinq the

20 criminal law. Q'Shea, 414 U.S. at 496-97. Further, they would

21 have had to again C01D.e before one of the same two ind!vidual

22 defendants and again receive allegedly unconstitutional treat1D.ent.

23

24

s u B

Blue Ribbon cOIDIJ)issioD on Inmate population Managem@l1t,

Final Report, State of California, January 29, 1990 (Plaintiffs'

25 Ex. B).

26

9 ~ putting Violence Behind Bars, Report of the Little

Hoover commission, State of California, January 18, 1994

(Plaintiffs' Ex. A).

8
AD 72 (Rev B/B2)

FEB. 26. 2004 2: 24PM BINGHAM MCCUTCHEN - SF

NO. 4874 P. 10/18

lsL.. at 496. Parolee plaintiffs in this case, however, do not

2
assert claims against individual parole agents on the "front line"
3
of the revocation process. Rather, plaintiffs allege a systemic

4
denial of due process, and sue the state and state executives
5
overseeing the correctional system.

6
Likewise, a citizen previously injured by a police chokehold
7
was held to lack standing to request a preliminary injunction
8
against the future use of police chokeholds. City of Los Angel~~
9
v. Lyons, 46~ U.S. 95, 105 (1983). The Court reasoned that the
10
possibility that the plaintiff would be stopped by the Los Angeles
11
police again, and for a second time subjected to a chokehold
12
without any provocation or police justification, was too remote and

13

unrealistic to constitute a threat of injury sufficient for

"--.-

14

standing.

Lyons, 461 U.S. at 105-06.

Co~paring parolee

15
plaintiffs' likelihoOd of experiencing the revocation procedure to

16
the Lyons plaintiff's likelihood of being choked again by police,

17
it is apparent that the threat of injury to parolees is more real

18
and immediate.

19
Plaintiffs' status as parolees subjects them to the continual

20 jurisdiction and supervision of the correctional system, unlike the

2' position of ordinary citizens vis-a-vis the Los Angeles police

22
force or Illinois jUdiciary. Parolee plaintiffs' eXposure to

23
defendants' correctional system is inherently more constant and

24
immediate than the relationships underlying ~Qn§ and O'Shea.

25
Moreover, an examination of parolee plaintiffs' individual

26
histories highlights tbeir likelihood of experiencing parole

....... ,.-.

Aon

9

(Aev 6162)

FEB. 26.2004 2:24PM

BINGHAM MCCUTCHEN - SF
" ... '

NO. 4874 P.11/18

revocation proceedings in the future. Cervantes' parole has
2
already been revoked twice, Valdivia's four times, and Welch and
:3
Yancy have experienced revocation once apiece. These plaintiffs
4
have thus been allegedly injured in the past by the challenged
5
revocation procedures •. These prior injuries serve as evidence that
6
the future threat is likely to actually occur. ~ Lyons, 461 U.S.
7
at 102; O'Shea, 414 U.S. at. 485-86. As the Supreme Court noted,
B
IIOf course, past wrongs are evidence bearing on ""hether there is
9
a real and immediate threat of repeated injury." 414 U.S. at
10
496. 10
11
Additionally, parolee plaintiffs Welch and Valdivia are
~2
chronic substance abusers whose respective alcohol and drug use has
13
contributed to their previous parole revocations. Because alcohol

'--

14
or drug-related violations could again catalyze the revocation

15
process, Welch and Valdivia are potential parole violators as long

16
as they continue to misuse drugs. 11

17
Considered as a whole, plaintiffs' status as parolees, their

18
ongoing supervision by aefendants, the quantitative aata r@garding

'9
revocation rates, allegations of past injury, and plaintiffs'

20
individual case histories establiSh that for these individual

21

22
10 Nelson, 895 F.2d 1248, does not hold to the contrary. The

23 circuit reasoned that "past exposure to harm is not syfficient to
confer standinq" for a threatened injury (emphasis a13ded). I agree

24 that plaintiffs' past injuries do not alone suffice to confer standing now. However, past revocations function as evidence of
25 the reality of the threat of injury in the case of all four parolee plaintiffs. See Lyons, 461 U.S. at 102.

26

11 The Complaint supports an inference of ongoing substance

abuse. ~ complaint !! 42-5~.

10
AO 72 (Aev 8182)

FEB, 26, 2004 2: 25PM BINGHAM MCCUTCHEN - SF

NO, 4874 p, 12/18

........

plaintiffs, the threat of parole revocation is sufficiently "real

2
anc1 immediate" t.o satisfy the Article III injury requirement.

3
LYons, 46~ U.S. at 102. 12

4
B. cauaatioD and Redr.ssa~i1ity

5
The. second requirement for Article III standing is a causal

6
connection between the injuries asserted and the conduct. complained

7
of. Lujan, 112 S. ct. at 2136. Plaintiffs contend that

6
California's parole revocation procedure -- fro~ re-arrest through

8
final revocation -- violates their constitutional rights. There
10
is no dispute that the procedures alleged to be uncon5titutional

11

are under the control and authority of the defendants. The

, "2
o

.1I

causation

requirement

is

therefore

satisfied.

13

The t.hird and final minim~ constitutional requirement of

........ -.

14
standing is redressability. Plaintiffs must show that it is

15
"likely," as opposed to merely "speculatiVe," that their injuries

16
will be tlredressed by a favorable decision." Lu1an, ~12 s. Ct. at

17
2136.

Here, the relief sought would directly cure the

18

19

20

21

12 In addition to the Article III standing requirements,

22 standing al'lalysis may address "prudential concerns" developed in case law. ~ee Valley Forge Christian college y. Americans united

23 For Separation of Church and State. Inc" 454 U.s. 464, 474-75

(1982). Defendants contend that prudential considerations preclude

24 plaintiffs' standing. They argue that plaintiffs are improperly assertinq the rights of others, Allen y. Wright, 468 U.S. 737, 751

25 (1984), and that plaintiffs have not shown a personal stake in the

litigation. ~ Fisher y. TUcson ~ch_ Pist. No. One, 625 F.2d 834

26 (9th Cir. 1980). These arguments fail because plaintiffs have

demonstrat.ed that they are individually threatened by future

exposure to an unconstitutional revocation procedure.

~1 AO 72 (Re·".9182)

FEB. 26. 2004 2: 25PM BINGHAM MCCUTCHEN - SF

NO. 4874 P. 13/18

'''~-.'

constitutional defects alleqed. 13

This requirement. is

2
accordingly satisfied.

3
c. standing of prisopers' Rights Uniop

4

Plaintiff' Prisoners' Rights union (the "Union") alleqes

5
standing as the representative of its members, estimated to number

6
8,900 people. An organization has standing to represent its

7

lnembers when: (a) its melllbers would otherwise have standing to sue

8
in their own right; (b) the interests it seeks to protect are

9

germane to the organization's purpose; and (c) neither the claim

10

,, asserted, nor the relief requested, requires the participat.ion of

individual melnbers in the lawsuit. Hunt y. Washington State App~

12

Advertising Comm'n, 432 U.S. 333, 343 (1977). Not ~ members of

13

the association must have standing in their own right -- "anyone

,-,

1.1

of them" will suffice. Warth y. Seldin, 422 U.S. 490,511 (1975).

15
I evaluate the union's standing- under these well-established

16
principles.
17
The Complaint alleges that one or more members of' the Union

18
are in each of the following situations: (1) on parole; (2)

19

20

13 Plaintiffs request a declaratory jud9lllent that the

provisions of the statutes of California, Laws of 1992, Ch. 695,

21 Senate Bill 97, granting defendants broad power over parole revocation, are violative of due process. They further seek

22 injunctive relief insurinq (1) that revocation proceedings satisfy due process i (2) that arrest warrants and holds are promptly

23 considered for sUfficiency and re-arrested parolees promptly

arraigned; (3) that preliminary ana final revocation hearings are

24 prompt and occur before a neutral and detached body; (4) that

potential re~okees may acquire the assistance of counsel at plea

25 negotiations; (5) that defendants publish regulations and provide

notice anQ public hearings regarding revocation matters; and, (6)

26 that defendants comply with Morrissey y. Brewer, 408 U.S. 471

(1972), and Gagnon v. Scarpelli, 411 UwS. 778 (1973). ~ complaint

!! 60-62 •

. ~

~O 72 (Rev 6162)

FEB. 26. 2004 2: 25PM BINGHAM MCCUTCHEN - SF

NO. 4874 P. 14/18

,
'''-... ..

undergoin9 the revocation process; and (3) in custody after parole
2
revocation .14 The analysis of 1ncUvidual parolee plaintiffs,
3
above, applies to the Union members on parole. Therefore it is
4
clear that at least one Union member, like parolee plaintiffs, has
5
a threat of future injury sufficient to ~onfer standing.
6
Moreover, qbren a group of some 8,900 people, it is reasonable
7
to assume that at least one Union member who was nin prison,
8
pending final revocation of parole" on September 6, and thus was
9
experiencing the revocation procedures, will continue to be "in
10
process" at the time of class certifi~ation.15 Such members have
, 1
',:21! been exposed to the allegedly unconstitutional revocation process
·/1 at the tilne of filing and certification, and th~refore assert
13
1 current "injur[ ies] in fact" as well as imminently threatened
injuries. Lujan v. pefenders of Wildlife, 112 S. ct. 2130, 2136
15
(1992).16

The causation and redressability require~ents are satisfied

for the same reasons eXplained above regarding individual
18
plaintiffs. Accordingly, I conclude that at least sOlile Union
19
members would have standing in their own right, and the first
20 requirement for representational standing is thus satisfied.
21

22

14 ~ co~plaint !! 97-99.

23

15 complaint! 99.

24
16 Because the relief sought is prospective reformation of
25 the revocation procedures I rather than release from custody or
damages for injuries already sustained, plaintiffs may challenge 26 the syste~ that allegedly holds them unconstitutionally. ~ Wolff
v. MCDonnell, 418 U.S. 539, 554-.55' (1974); HQck y. Humphrey, 114
S. Ct. 2364 (1994).

1.3
AD 72
(~ev 8192)

FEB, 26, 2004 2: 25PM· BINGHAM MCCUTCHEN - SF

NO, 4874 p, 15/18

"-_ ..

Since 1971, the Union has been working to provide legal

2
assistance to prisoners, and to preserve and protect the rights of

3
parolees and prisoners in California. The constitutional rights

4
tbat plaintiffG seek to vindicate by this action are manifestly

5
related to the Union's historic provision of legal assistance. The

6
second requirement for representational standing is therefore

7
satisfied. ~ fiYnt, 432 U.S. at 343.

8
Defendants argue that representational standinq is nonetheless

9
improper because "the union must rely upon the participation of its

10
members in the laWsuit." This argument pertains to plaintiffs'

1 J
allegations that the revocatioh. procedure denies parolees the right
~2
to counsel, in violation of Gagnon v. Scarpelli, 411 U.S. 778, 790

13
(1973). Gagnon held that state authorities must consider a

'---.'

1t;

parolee's right to counsel in revocation proceedings on a case-by-

15
case basis. 411 U.s. at 787-91. Defendants reason that it will

16
therefore be necessary to have the participation of those Union

17
me~bers who claim to have been unlawfully aenied counsel in order

18
to assess their cases individually.

19
While defendants' proposition see~s reasonable at first

20
glance, it does not survive scrutiny. The Co~plaint asserts that

21
when ~arolees request counsel, defendants engage in a pattern and

22
p~actice of Gagh.OD violations manifested by their denial of the 23 request "in virtually all such cases, on the invalid ground, among
24
other invalid grounds, that the parolee is co~petent to represent
25
himself 01:' that the charges are not diff icult to defend . .,17
26

17 See Complaint! 195.

'-'
14
AO 72
(Rev 6182)

FEB. 26. 2004 2: 26PM .' BINGHAM MCCUTCHEN - SF

NO. 4874 P. 16/18

, '"---

Plaintiffs allege that defendants do not inform parolees of their

2
right to request coun5el and do not make a case-by-case assessment

3
of each parolee's right to counsel, but instead apply broad and

4
inflex1t11e standards to most parolees. 18 It is quite possible
5
that the Union can prove these allegations of systemic Cagnon

6
violations through evidence obtained from defendants during

7
discovery, or from the named plaintiffs, without resort to

8
individual cases of Union members. Thus neither the claim

9
asserted, nor the relief requested, requires the participation of

10
individual members in the lawsuit. ~ HYnt, 432 U.S. at 343.

11

Accordingly I I conclude that the Prisoners' Rights Union has

12

standing on behalf of its members.

13

IV

"-,-,-

14

MOOTNJ!:SS

15
Defendants argue that the claims of tbe Complaint are moot.

16
The doctrine of mootness bars the court from adjudicating a case

1 7
where (1) the issues are no longer tllivetl or (2) the parties lack

18
a legally coqnizable interest in the outcome. Sample Yo Johnson,

19
771 F.2d 1335, 1338 (9th Cir. 1985), cert. denied, 475 U.S. 1019

20
(1986). To the extent that defendants' "mootness" argument relies

21
on the contention that plait:ltiffs clJrrently lack st~nding, it fails

22
for the reasons already explained. The due process issues raised

23
by the Complaint are equally as vital now as they were when the

24
Complaint was filed. As the Ninth Cirouit ~ecently noted, "(w]here

25
the threatened harm still exists • • • the ·ease remains alive and

26

'~.-'

AO 72 (Rev 8182)

18 ~ Complaint !! 16, 60-61, 81, 195, 228-240.
15

FEB. 26. 2004 2: 26PM
.'
.,

BINGHAM MCCUTCHEN - SF

NO. 4874 P. 17/18

,~
suitable for judicial de~ermination." Public Servo Co, of Colo.
2
v, Shoshone-Bannock Tribes, 30 F.3d 1203, 1205 (9th Cir. 1994).
3
Likewise, the "personal stalteR element of the mootness
4
doctrine is satisfied because the ~arolee plaint.iffs are each
5
personally threatened with revocation of their parole status under
6
defendants' allegedly unconstitutional process. ~ united states
7
Parole cgmm'n y, Geraght~, 445 U.S. 38S, 396-400 (1980),
8
Accordingly, their controversy with defendant~ presents a matter
9
capable of judicial resolution, and does not require the court to
10
issue an "advisory opinion" upon a hypothetical set of facts. ~
11
Lewis v. continental Bank Corp., 494 U.S. 472, 477 (~990).
12
In regard to the Union, those members who are parolees are in
13
the same position as the individual plaintiffs considered above,
1':
and consequently satisfy the mootness analysis. As for the Union
15
members who were experiencing the revocation process at time of
16
filing, it is clear that even if some of these individuals are no
17
longer engaged in the revocation procedure, the Ilconstant existenoe
18
of a class of persons SUffering the deprivation is certain" in a
19
group of approximately 8,900 people. ~ Gerstein y. Pugh, 420
20 u.s. 103, 111 n.ll (1975).
21
MoreOVer, given the ~elative brevity of the parole revocation
22
process, it is ~anifestly unlikely that a particular parolee could
23
have his or her claims adjudicated before the revocation process
24
ended. Many individual parolees: are subjeoted to the parole
25
revocation process OIlore than once. A "classio justification for
26 a conclusion of nomnootness ll therefore applies to union melllbers

AO 72

16

(Rev 6182)

FEB. 26. 2004 2: 26PM

..,

.'

. '.

BINGHAM MCCUTCHEN - SF

NO. 4874 P. 18/18
-'

undergoing parole revocation at the time of filing, for their
2
claims are "capable of repetition yet evading review." ~ Roe v.
3
~, 410 U.S. 113, 125 (1973).
4
For all of the abov@ reasons, defendants' mootness argument
5
fails.
6
v
7
2....B. D I R
8
Accordingly, for all the reasons stated above, defendants'
9
objections to class certification on standing and ~ootness qrounds
10
are rejected.
11
Pursuant to this court's order filed November 14, 1994, a
class is hereby certified under Rule 23(b) (2), consisting of: (1)
13
California parolees at large; (2) California parolees in custody,
14
as alleged parole violators, and who are awaiting revocation of
15
their state parole; and (3) California parolees who are in custody,
16
having been found in violation of parole and who have been
17
thereupon sentenoed to prison custody.
18
IT IS SO ORDERED.
19
DATED: Nove~er 29,
20
21
22
23
24
25
26

AO 72

17

(R9V 8182)

 
 1 STEPHEN J. FERRELL°, PAUL COMISKEY

RICHARD HERMAN

JR.

900 G St, Suite 302 301 Forest Avenue

2 P.O. Box 880738

Sacramento, CA 95814 Laguna Beach, CA

San Diego, CA 92168 CA State Bar 165510 92651

3 CA State Bar 156288 tel: (916) 325-2701 CA State Bar 153743

tel: (619) 277-5900

tel. (714) 494-1404

4

ALEX LANDON

LAUREL M. NELSON

DAVID PRESCOTT

5 2442 Fourth Ave.

P.O. Box 462075

16915 Crenshaw Blvd

San Diego, CA 92101 Escondido, CA 92046 Suite 7

6 CA State Bar /50957 CA State Bar 1138706 Torrance CA 90504

tel: (619) 232-6022 7
JACKSON WALLACE

tel: (619) 74

Ft E

92 -6521

8 P.O. Box 656

Carmel Valley, CA 93924

9 CA State Bar /60151 tel: (408) 659-2721
10 ATTORNEYS FOR PLAINTIFFS
11

MW - Z 1994
Ii CLERK, U.S. DISTRIC COURT EASTERN DISTRICT OF CALFORMA
By

12

IN THE UNITED STATES DISTRICT COURT

13

FOR THE EASTERN DISTRICT OF CALIFORNIA

14 VINCENT CERVANTES and STEVEN WILLIAMS; on their own behalf and on behalf of the
15 class of all persons similarintull •-

0 7 1 6d&GG

16

PLAINTIFFS,

)

)

17 VS.

)

)

18 STATE OF CALIFORNIA; PETE WILSON, Governor of)

the State of California; JOE SANDOVAL,

)

19 Secretary of the Youth and Adult Correctional) Agency; CRAIG L. BROWN, Undersecretary of the)

20 California Youth and Adult Correctional

)

Agency; JAMES R. GOMEZ, Director of the

)

21 California Department of Corrections; JUDITH ) A. MCGILLIVRAY, Deputy Director of the

22 Dep lent of Corrections, Parole and Co ity Services Division; and Does 1

23 through 200.

NO.
DATE: TIME: DEPT:

24

DEFENDANTS.

25 CIVIL COMPLAINT-CLASS ACTION FOR DECLARATORY AND INJUNCTIVE

26

RELIEF AND FOR DAMAGES.

27 42 U.S.C. sec. 1983 and 28 U.S.C. sec. 1343(a)(3), 2201-2202

28

JURY TRIAL DEMAND

1

JURISDICTION

2

1. Jurisdiction of this court is invoked pursuant to the

3 provisions of Title 28 U.S.C. sec. 1343(3). The individual

4 defendants are persons who have deprived and continue to deprive

5 plaintiffs of their federally guaranteed constitutional and civil

6 rights under color of state law, in violation of Title 42 U.S.0

sec. 1983.

8

2. Declaratory judgment and injunctive relief are sought

9 under the terms of Title 28 U.S.C. secs. 2201 and 2202. Members

10 of plaintiff class, on an ongoing basis, are being irreparably

11 harmed by defendants' illegal actions, and there is no

12 sufficient, alternative remedy to redress plaintiffs' complaint.

13

VENUE

14

3. Venue is properly in this court, pursuant to Title 28

15 U.S.0 sec. 1391(b)(1), in that this judicial district is the

16 residence of one or all of the defendants in this civil action,

17 and all of the defendants are residents of the State of

18 California.

19

PARTIES

20

PLAINTIFFS

21

PLAINTIFF STEVEN G. WILLIAMS

22

Plaintiff STEVEN G. WILLIAMS is a prisoner under the

23 custody and control of the California Department of Corrections,

24 at the California State Prison at Chino.

25

5. On March 10, 1994, \ Wil1iams was found not guilty of the

26

\
crime of robbery, after trial by jury.

27

6. Williams is awaiting a parole revocation hearing, on

28 the grounds on which he has already been acquitted.

2

1

7. The proposed hearing is to be before one or more

2 hearing officers who are employed by the Department of

3 Corrections, and for this and other reasons, the hearing will not

4 be before a body which is neutral and detached.

5

8. Department of Corrections officials have refused

6 Williams representation by his attorney at the prospective

hearing, although his attorney is ready, willing and able to

8 represent him before a body which fully complies with the
9 requirements of due process and including the requirements of

10 Morrissey v. Brewer, 1972, 408 U.S. 471.

11

PLAINTIFF VINCENT CERVANTES

12

9. Plaintiff VINCENT CERVANTES is a prisoner under

13 custody and control of the .California Department of Corre ions,

14 at the California State Prison at Soledad.

15

10. Cervantes is serving a 12-month parole revocation term

16 on the charge that he violated parole by falsely imprisoning his

17 wife.

18

11. Cervantes was denied counsel at his revocation hearing

19 upon the Defendants' policy, described to him, that he did not

20 qualify for an attorney because he was not incompetent.

21

12. Cervantes' wife testified at the hearing that Cervantes

22 had not falsely imprisoned her and that no physical violence was

23 involved in the incident that resulted in the parole revocation

24 allegation.

25

13. Cervantes' parole was violated after a hearing was

26 conducted before one or more 'hearing officers who are employed by

27 the Department of Corrections, and for this and other reasons,

28 the hearing was not before a body which is neutral and detached.

3

14. Although this incident arose out of an alleged domestic dispute, the available disposition was limited to reimprisonment, and little or no consideration was given by the hearing officers to having the incident resolved by assigning Cervantes to nonprison, alternative programs or resources in the community.
DEFENDANTS DEFENDANT STATE OF CALIFORNIA 15. Defendant State of California is the governmental entity by whom the other defendants are employed. The State is sued for injunctive relief only.
DEFENDANT PETE WILSON 16. Defendant Pete Wilson is Governor of the State of California. 17. As Governor, and pursuant to his constitutional authority under California Constitution, Article V, section 1, and pursuant to state statutes, Mr. Wilson is responsible for the appointment of the Defendants Secretary and Deputy Secretary of the Youth and Adult Corrections Agency, the Defendant Director of Corrections, the Defendant Deputy Director of the Department of Corrections, Parole and Community Services Division. 18. The Governor, in union with those whom he appoints, namod in the preceding paragraph, and by and through those persons employed by the other defendants', including Does 1 through 200, named as defendants herein, make substantive policy, follow practice and procedure of their making, so as to control and regulate the custody of the entire membership of plaintiff class. 19. Pursuant to California Penal Code Section 3062,
4

1 Defendant Wilson has power to revoke the parole of any prisoner,

2 just as the parole authority has such power, and the Governor's

3 written authority is sufficient to authorize any peace officer to

4 arrest any prisoner.

5

20. For the reasons described in further detail in this

6 complaint, upon information and belief, Defendant Wilson is

responsible for the creation and enforcement of informal or

8 covert policies and practices whereby the rights, privileges and

9 immunities of the plaintiff class are adversely affected, in

10 violation of the United States Constitution and of other laws.

11

21. Defendant Joe Sandoval is the Secretary to the

12 Defendant Wilson, in charge of the California Youth and

t,

13 Correctional Agency, which gubernatorial agency funds all csta

14 and employs and directs all staff for executing all actions

15 complained of herein. Pursuant to California Government Code

16 section 11154, and except as otherwise alleged in this complaint,

17 the appointment and employment of necessary officers and

18 employees of the Agency are made by Mr. Sandoval, with the

19 express or implied approval of the Defendant Governor Wilson.

20

22. Defendant Sandoval is appointed by and serves at the

21 pl

of Defendant Wilson, the appointment subject to Senate

22

tion, pursuant to Government Code section 12801.

23

p4 suant to California Government Code sections 12800,

24 12801, and 12850.4, Defendant Sandoval may exercise the authority

25 vested in the Governor in reppect to the Youth and Adult

26 Correctional Agency.

27

24. Pursuant to California Government Code sections 12850.2

28 and 12851, Defendant Sandoval is advisor to the governor and

5

assists in establishing major policy and program matters effecting the Youth and Adult Correctional Agency, including matters of public interest relating to the agency.
25. Pursuant to California Government Code section 12850.6, Defendant Sandoval has immediate supervisory authority over the Department of Corrections and he must hold the head of that department (Defendant Gomez) responsible for management control over the administrative, fiscal, and program performance of the department.
26. Defendant Craig L. Brown is the Undersecretary to the Defendant Wilson, in charge of the California Youth and Adult Correctional Agency. Pursuant to California Government Code Section 12811.1, Defendant Brown is appointed by Defendant Wilson, upon the recommendation of Defendant Sandoval, and serves at the pleasure of Defendant Wilson, and as Undersecretary of the Agency, upon information and belief, pursuant to California Government Code Sections 7 and 1194, he is authorized to act in performance of any of the duties delegated to him by the Secretary.
27, Defendant James H. Gomez is Director of the California Department of Corrections. Pursuant to California Penal Code sections 5051 and 5051.5, Mr. Gomez is also appointed by the Governor, with the advice and consent of the Senate, and serves at the pleasure of the Defendant Wilson.
28. As Director of the Department of Corrections, and pursuant to California Penal Code Section 5053, Mr. Gomez is the chief administrative officer of the Department of Corrections.
6

In that capacity Mr. Gomez acts under the direction and control of the Defendants Wilson, Sandoval, Brown, and others, and implements Agency policy by and through his employees, and in union and in collaboration with other officers of the Agency, including the Deputy Director of the Department of Corrections for the Paroles and Community Services Division.
29. Also, pursuant to section 5054 of the California Penal Code, the Defendant Director of the Department of Corrections is the custodian of all California state prisoners.
30. Defendant Judith A. McGillivray is Deputy Director of the Department of Corrections, Parole and Community Services Division. As such, Ms. McGillivray enforces and executes the policy of the Department of Corrections, Parole and Community Services Division, under immediate direction of the defendant Director of Corrections.
31. Defendant Deputy Director McGillivray serves in office pursuant to the provisions of California Penal Code sec. 3000(g), and as such she is appointed by the Defendant Governor Wilson, serves at his pleasure, and is subject to confirmation by the Senate of the State of California.
-32i Pursuant to California Government Code sections 7 and
119 -Defendant McGillivray may exercise all authority of
DefeAdant Director Gomez. 33. Upon information and belief, Defendant McGillivray is
immediately responsible for the day to day operations of parolee arrests, parole revocation arid parole revocation proceedings.
34. Does 1 through 200 are named as defendants. These persons are agents or employees of the named defendants. "Does 1
7

1 through 200" are fictitious names for these persons, whose real

2 names are not yet known, but which will become known in due

3 course.

4 •••

5

35. The foregoing defendants, individually and in union,

6 make and execute policy, practice and procedure of the Youth and

7 Adult Correctional Agency affecting (1) most persons seeking

8 release to parole, (2) persons on parole, (3) persons being

9 threatened with revocation of parole or whose parole is being

10 revoked and (4) the revocation process in its entirety, (5) the

11 disposition of all revoked parole, (6) the planning of prisons

12 and other penal resources, including community treatment

13 resources, (7) allocation of budget resources for the foregoing,

14 and (8) numerous and almost all other functions affecting the

15 parole population and the processes which influence the parole

16 population in the State of California.

17

36. Thus, and as is more fully set out below, Defendant

18 Wilson, Defendants Secretaries of the Youth and Adult

19 Correctional Agency, in collaboration with, and by and through

20 the Defendants Directors of the Department of Corrections have

21 exclusive control of parolees during the entire term of their

22 sentence, including, but not limited to the following terms of

23 sentence: (1) while they are serving their initial term, (and

24 prior to parole release); (2) while they are on parole after

25 release from their initial term, (3) while charged with a 26 violation of parole, (4) during proceedings to determine guilt or 27 innocence of the charges, and (5) after any violation has been 28 found and disposition made returning the parolee to prison
8

1 custody.

2

37. The California Youth and Adult Corrections Agency and

3 its subagency, the California Department of Corrections are

4 Executive Branch agencies, which perform an executive function of

5 government, pursuant to California Government Code sections

6 12080, 12811, and 12851.

7

38. Pursuant to California Penal Code sec. 3000(g) the

8 California Department of Corrections is the governmental agency

9 which has the immediate, day to day charge of management and

10 custody of California adult parolees.

11

39. The California Department of Corrections sets the

12 conditions of parole pursuant to the terms of California Cade of

13 Regulations sec. 3901.9.1 et seq. The California Department of

14 Corrections also sets the length of parole, within limits,

15 pursuant to California Code of Regulations sec. 3901.11.1.

16

40. Pursuant to California Penal Code secs. 3000(b) and

17 3060, the California Department of Corrections is the parole

18 authority and therefore, subject to the supervisory or

19 supplemental powers of the defendant Wilson, who, as alleged

20 above, has full power to suspend or revoke the parole of any

21 parolee and to order any parolee returned to prison, who is

22 se

a,sestence under the California Determinate Sentencing

23 Law.

addk sec. 1170, et seq.).

24

41. Prior to 1993, the revocation of prisoners' parole was

25 instigated by the Department of Corrections and later adjudicated

26 by the Board of Prison Terms a different agency of government.

27 (established by Act of State Legislature pursuant to Penal Code

28 Sec. 3040) However, beginning in 1993, pursuant to California

9

Statutes of 1992, Ch. 695, Senate bill 97 (Torres), the power to conduct hearings on revocation of parole, and to remand parolees to prison, was moved from the Board of Prison Terms to the California Department of Corrections.
42. Consequently, since 1993, under current California law, among other things, the Department of Corrections revokes prisoners' parole, institutes revocation proceedings, and conducts revocation hearings and sentencings.
CLASS ACTION ALLEGATIONS 43. Pursuant to Rule 23 of the Federal Rules of Civil Procedure, this suit is brought on behalf of named plaintiffs on their own behalf and on behalf of all other persons similarly situated. 44. The class is composed of the following persons, subject to Defendants' dominion and control: (1) California parolees who are at large, (2) California parolees in custody, as alleged parole violators, and who are awaiting revocation of their state parole, and (3) California parolees who are in custody, having been found in violation of parole and who have been thereupon sentenced to prison custody. 45. The instant suit should be certified as a class action, for the following reasons: 46. This is a civil rights proceeding 47. Generally, relief requested is declaratory and injunctive; other than for the two named individual plaintiffs, particularized damages for individual plaintiffs are not sought in these proceedings. 48. The Defendants and by and through the Department of
10

Corrections, as a successor in function of the California Board of Prison Terms, continue a practice of revocation of parole and remand of parolees to prison, in violation of law, as alleged herein, which practice has been continuing unabated for many years.
49. The Defendants' alleged illegal pattern and practice of violation of law is generally applicable to all members of plaintiffs' class.
50. Alternatively, the pattern and practice of Defendants' and their agents in handling parole revocation are sq utterly arbitrary and capricious, that the actions of Defendants and their agents are lawless.
51. One of Plaintiffs' claims is that they are not receiving their right to counsel under Gagnon v. Scarpelli, 1973, 411 U.S. 778. As will later be alleged in more detail, unrepresented by counsel, the members of plaintiffs' class are generally unable to assert their constitutional rights under Morrissey v. Brewer, 1972, 408 U.S. 471.
52. Upon information and belief, there are few or no parolees who have the financial means to fund litigation, such as this.
53. Moreover, there are very few attorneys who have sufficient familiarity with the issues presented here as to be able, competently to present the challenges being made here. Thus, individual parolees have no sufficient legal means to seek redress of their grievances, on a case by case basis.
54. By contrast, the State of California has teams of wellpaid attorneys with nearly unlimited resources, with which to
11

defend against the claims of the members of any claims of individual parolees.
55. The equitable remedy available to an individual parolee, even if he were represented by counsel, would be fraught with the prospect of mootness, for the following reasons:
a. The period during which a parolee is in custody awaiting the uncounseled "screening" process (plea bargaining), which is being complained about in this suit, is about 2-3 weeks;
b. Evidentiary hearings, also complained about herein, when they are held, are being held in the range of 6 weeks to 4 months after arrest;
C. The maximum term which a parolee may serve in custody, if (s)he is found in violation and remanded to prison is 1 year;
d. The probable remedy available to an individual parolee aggrieved by Defendants' actions, (in the unlikely event that one were to be afforded) is remand for further proceedings, such as appointment of counsel, new plea negotiations, and/or a new evidentiary hearing. Such a remedy (if afforded) would be useless to an individual parolee who, in likelihood, will already have served most, if not all of his illegal custody when such reUf . might be granted.
56. Thus, the constitutional and other violations alleged
by plaintiff class are occurring repeatedly, and upon information
and belief, are almost always evading review, and, if and when reviewed, are being afforded an inadequate remedy.
57. The members of the class are so numerous that joinder of all members is impracticable. The size of the class is
12

1 estimated to be about 90,000 persons on parole and not in

2 custody; and about 40,000 persons serving time as parole

3 violators in custody.

4 •••

5

58. The instant suit involves questions of law or fact

6 common to all the members of the class:

7

a. In general, the common questions of law and fact

8 involve the summary remand to prison of parolees without due

9 consideration of the right to counsel and without due process of

10 law, in violation of Gagnon v. Scarpelli, 1973, 411 U.S. 778, and

11 Morrissey v. Brewer, 1972, 408 U.S. 471.

12

b. Claims of the representative parties plaintiff are

13 typical of the claims of the class, and plaintiff Prisonerar

14 Rights Union is an organization whose members, individually and

15 collectively are aggrieved by the various claims made on this

16 complaint.

17

c. The representative parties plaintiff will' fairly

18 and adequately protect the interest of the class.

19

d. There is risk that individual parolees, who may

20 wish to seek redress, unrepresented by counsel, will devote

21 valuable resources to litigation which, for lack of counsel, will

22 not U.iy res44tin preservation and development of all the

23 claiMs, facts and circumstances which entitle such individual

24 parolees to relief under constitutional law.

25

59. Moreover, there is,risk of inconsistent or varying

26 adjudications which might be obtained by individual members of 27 the class which would establish incompatible standards of conduct 28 for the Defendants; and,

13

60. There is risk that such individual litigants, for lack of counsel or resources, would be unable to properly frame and develop the constitutional issues, and which litigants might unwittingly achieve precedent which is adverse to the constitutional rights of the membership of the class, who have not participated in any such individual litigation.
61. In the event any individual litigants were to succeed in obtaining relief on the grounds stated in this complaint, their success would not necessarily provide any relief to the thousands of other members of the class who were similarly entitled to relief, but who, for lack of resources and counsel, are unable to seek such redress.
62. The allegations made herein are that the defendants are engaged in a pattern of violating Gagnon and Morrissey. Whether, the defendants are acting in a coordinated violation of law, or whether they are acting arbitrarily, capriciously and inconsistently, also in violation of law---in either event, the Defendants are acting illegally, in routine violation of Gagnon and Morrissey, and relief should be made available, generally, to all the members of the class.
.63. As viii appear in more detail in the prayer for relief, a d Stratton and a general, final injunction will serve to redress the claims of the unnamed members of the class against the illegal actions of the Defendants.
64. There are common questions of law and fact, described above, and these common questions predominate over questions affecting only individual members, and class action is superior to other methods for adjudicating the controversy.
14

65. The attorneys for plaintiffs in this proceeding are suitable to serve the needs of the plaintiff class: (1) the plaintiffs' attorneys are, generally, active in criminal law and prisoners rights and remedies; (2) only a very few attorneys, other than those who bring this complaint, are familiar with the issues raised in the complaint; (3) one of the allegations of plaintiff class is that their right to counsel is being denied, and so, no superior method and no effective alternative method of obtaining counsel for the class is known than by this lawsuit brought by these attorneys.
DENIAL OF DUE PROCESS OF LAW 66. In general, and as will be more fully alleged below, plaintiffs are continually being denied due process of law in that (1) there is no fairness or scrutiny of the process whereby (a) parolees are being arrested; or whereby (b) parole revocation proceedings are being instigated; (2) prompt preliminary parole revocation hearings are not being conducted; (3) written notice of charges is not promptly given; (4) reasonable opportunity for investigation is not afforded; (5) defendants are following a pattern and practice of denying counsel to parolees in violation of existing constitutional standards, in almost all cases of parole revocation; also, plaintiffs are being denied (6) opportunity to present live evidence and written evidence, and the opportunity to confront and cross examine adverse witnesses is routinely denied; (7) as a matter of fact and law, hearing before Department of Corrections officials does not afford a "neutral and detached" hearing body; (8) decision making is based on no known lawful criteria, and therefore any reasons given for
15

1 the decision are meaningless and suspect; (9) Upon revocation,

2 all or almost all parolees are sent back to prison, without

3 regard for alternative dispositions.

4 •••

5

ARREST AND HOLD

6

67. Upon information and belief, in practice, the

7 individual parolee's officer may recommend or cause the issuance

8 of an arrest warrant by instigating the violation and revocation

9 process.

10

68. Under color of state law, and pursuant to unwritten

11 policy and procedure, or pursuant to no adequate written or

12 unwritten policy and procedure, warrants are issued and holds are

13 placed and violations are charged, and revocations are instituted

14 without fair, sound and prior---if any---consideration being

15 given to the reasonableness and necessity for the action.

16

69. The discretion to arrest, to hold, to transfer to

17 prison, or to institute revocation, is exercised in such a way,

18 by the parole agents alone and in concert with other, unknown,

19 non-neutral persons, under unknown criteria, at unknown times,

20 with unknown ultimate responsibility, so that the exercise of

21 such power or discretion (a) is routinely abused and (b) cannot
22 be f rly and timely reviewed, either by the parolee or by any

23 interested party or body.

24

70. Once a parolee is arrested, a "hold" prohibits a

25 parolee's release from custody pending administrative hearing.

26 Upon information and belief, the parolee's parole agent

27 influentially participates in the decision whether to place or to

28 withdraw a hold on the parolee.

16

1

71. Upon information and belief, in numerous or most

2 revocation cases, it is the parolee's agent who has arrested the

3 parolee and/or who has lodged charges against him and is thus

4 prosecuting the parolee as a violator.

5

72. Under current California law and practice, there is no

6 neutral and detached person or body which assesses whether a

7 parolee can or should be released pending adjudication of the

8 cause for the detention.

9

73. Upon information and belief, while Defendants'

10 discretion to withdraw a hold, exists in principle, it is rarely,

11 if ever, invoked in favor of release pending hearing.

12

74. Consequently, upon information and belief, parolees are

13 frequently confined to jail or prison, pending "screening" (plea

14 bargaining) and pending administrative hearing, regardless of 15 whether or not they are being violated solely on "technical" 16 allegations, and whether or not any criminal charges pending are 17 minor or misdemeanors.

18

75. Upon information and belief, parole holds (prohibiting

19 release from jail or prison custody) are routinely placed on

20 parolees charged with new criminal offenses, preventing them from

21 mak41g bail in any amount, regardless of the parolee's risk of

22 fliI, regardless of the seriousness of the allegations of the

23 new offense, and regardless of the evidentiary support for the

24 new allegations, whereas such parolees are entitled to bail or

25 release on recognizance in the new criminal case.

26

76.

\
As a matter of pattern or practice, attorneys who are

27 assigned to represent the parolee, as a defendant in a new

28 criminal case in the criminal courts, do not challenge and do not

17

deem they are charged to challenge the placement of a hold by

defendants.

77. Upon information and belief, within the broad scope of

Department of Corrections' discretion, a large majority of the

parolees being processed as parole violators are "discretionary"

violators, that is, they could be handled by referral to local

resources, by imposition of other conditions of parole, rather

than by processing for revocation.

78. There is currently no consistent definition of the term

"technical" parole violator among correctional agencies and

parole authorities for reporting and data classification, whereas

public officials have called for such a definition, at

==. least

since 1990, in part, to allow decision-makers to separate out the

minor from the major offenders.

79. Parolees whose revocation does not involve a new

violation of criminal law, are a large and significant percentage

of those whose parole is being violated by defendants, on a

continuing basis.

80. The revocation of parole for those who are not in

violation of the criminal law is initiated arbitrarily,

capriciously or without any adequate or proper criteria,

guidelines or scrutiny, processes and procedures, whereas these

criteria, etc., should have been and have not been established by

defendants.

81. Decisions to revoke "technical" violators are based, in

part, on factors extraneous to the merits of the alleged

violations, and are made without due regard for the needs of

particular parolees for detention or alternative sanctions.

18

1

82. In the 1980's the number and rate of drug abusers and

2 drug addicts being returned to prison as parole violators has

3 increased geometrically.

4 •••

5

SPEEDY REVOCATION HEARINGS ARE NOT AFFORDED

6

NO PRELIMINARY PAROLE REVOCATION HEARINGS ARE CONDUCTED

7

83. With the rare exception described in the next

8 paragraph, no prompt and preliminary parole revocation hearings

9 are conducted in California, whereas a parolee is entitled to a

10 preliminary examination into the cause of his detention "as

11 promptly as convenient after arrest". Morrissey 408 US at 485.

12

84. Pursuant to California Code of Regulations, Titlt 15

13 Sec. 3901.21.11, prerevocation hearings are held only for the

14 purpose of retaining jurisdiction over a parolee when his parole 15 is about to expire and the defendants wish to retain jurisdiction 16 over him, but when the revocation authorities do not yet have

17 enough basis in fact to conduct a final violation hearing.

18

85. Parolees are routinely removed from their community of

19 residence, soon after arrest and pending hearing on the

20 violation.

21

.86. In part, in order to alleviate local jail crowding,

22 revocation hearings and proceedings are often not conducted in

23 the community near where the alleged violation occurred.

24

87. As a result of the arbitrary removal of parolees from

25 their "at liberty" status, ap alleged above, and as a result of

26 their removal from their community of residence, as alleged

27 above, and for lack of preliminary revocation hearings, prompt

28 investigation is impossible and quasi-judicial scrutiny of the

19

prima facie cause of the parolee's detention is routinely denied.

2

PAROLEES ARE FREQUENTLY DENIED SPEEDY FINAL

3

PAROLE REVOCATION HEARINGS

4

5

88. Parolees are often held in custody, without being

6 afforded a final revocation hearing, where the said hearings are

7 unreasonably and unnecessarily delayed, in excess of the time

8 limits provided for by constitutional due process of law.

9

89. While a delay of about 120 days from arrest until final

10 revocation hearing is not alleged to be excessive asa matter of

11 law, plaintiffs do allege that such delay does violate the due

12 process rule of Morrissey because there are no privileges

13 afforded parolees pending final revocation (such as preliminary

14 hearings, counsel, investigation, nor any forum for challenging

15 refusal to withdraw holds).

16

CONDUCT OF DISCRETION BY THE DEPARTMENT OF

17

CORRECTIONS PURSUANT TO UNKNOWN POLICY

18

90. All actions challenged by this complaint and relating

19 to the process of parole violation and revocation, including, but

20 not limited to: placement of holds, issuance of arrest warrants

21 and the making of arrests (other than those warrants and arrests

22 madeiin the first instance by another jurisdiction), charging,

23 plea negotiation, investigation of claims made by witnesses

24 adverse to parolees, investigation of claims made by a parolees'

25 defense witnesses, consideration of parolees' request for

26 appointment of counsel, processing and consideration of any

27 appeal of denial of request for appointment of counsel,

28 scheduling of evidentiary hearings, prosecution of charges, fact

20

1 determination, disposition and sentencing are conducted by or

2 pursuant to the practice and procedures of the Defendants Gomez

3 and McGillivray, or their agents, all of whom are employees of

4 the California Department of Corrections, and answerable to and

5 regulated by policy formed by Defendants Wilson, Sandoval and

6 Brown.

7

91. Plaintiffs' parole agents are peace officers employed

8 by the California Department of Corrections.

9

92. At present, defendants are placing emphasis on the

10 punitive enforcement of parole conditions and law.

11

93. Defendant Gomez' agency, California Department of

12 Corrections, does not adhere to the California Administrat ve

13 Procedure Act, California Government Code Secs. 11340-11524., 14 which, if it were enforced against defendants, would provide 15 certain procedural and substantive safeguards against the

16 exercise of deprivatory, administrative action.

17

94. Upon information and belief, by the allocation and

18 prioritization of staff and services, defendants have virtually

19 unlimited control, with little or no oversight from the public or

20 the other branches of government, over the policy and practices

21 aff

P0914, revocations.

22

Upon information and belief, for many years, the

23 specifidigclaicied and practices of the Department of Corrections,

24 and of its predecessor agency, the Board of Prison Terms, and of 25 the Office of the Governor, and of the Agencies of the other

26 defendants, with regard to parolees, have been unknown to the

27 public, to the Bar, and to the Legislative and Judicial branches

28 of government.

21

1

96. However, upon information and belief, changes are being

2 continually instituted in the parole revocation policies and

3 practice, and such changes have been driven, in part, by an

4 interest in efficiency and in factors collateral to the fairness

5 of the proceedings, and have not been driven by an interest in

6 the preservation of due process of law under Morrissey and the

7 right to counsel under Gagnon.

8

97. Upon information and belief, in or about the past ten

9 years, the absolute numbers of parole violations alleged, the

10 number and percentage of parolees being found guilty after 11 administrative hearing, the number of parolees being returned to

12 prison, •have increased geometrically, and, during this

13 approximate ten year period, there were no published, substantive

14 or procedural changes in law as might account for the changes

15 described.

16

98. Upon information and belief, there exist either

17 "standardized criteria" or guidelines or internal policy

18 statements which exist with regard to the processing of parole

19 violators.

20

99. Upon information and belief, Defendant Wilson and the

21 other defendants have issued, participated in, or have had

22 knowneage ()fend have influenced the policy or practices of the

23 Department of Corrections, relating to parole violations.

24

100. Any criteria or policies, mentioned in paragraphs 97-

25 98, if they exist, are unpui4ished, and upon information and

26 belief, are unknown to the parolees, to the public, to the

27 members of the Bar, and likewise unknown to the legislative and

28 judicial branches of government.

22

101. Upon information and belief, Defendant Wilson is undertaking to increase the rate or revocation and reincarceration of parolees, according to policy, practice and procedure which is currently unknown to the public and which is driven by interests which do not give due regard to the satisfaction of parolees' needs, nor to the preservation of parolees' constitutional rights, nor to preservation of public safety or concern for the public fisc.
102. Upon information and belief, the process of revocation of parole is driving prison crowding and stimulatingprison growth, which in turn, impairs the republican form of government, interferes with public safety, and thwarts the entitlement-of prisoners to be exempt from cruel and unusual punishment.
"WAIVERS" OF MORRISSEY AND GAGNON ARE NOT KNOWING AND VOLUNTARY
103. Plaintiffs are being unlawfully coerced to give up their constitutional right to due process and other rights, in the adjudication and disposition of allegations of violation of parole.
104. Parolees who have been arrested are approached by a member of the staff of the Department of Corrections about 2 weeks after a parole hold has been placed on the parolee's custody.
105. The purpose of this visit is plea "negotiations", called "screening".
106. The interview, in the nature of plea negotiations, is conducted pursuant to some unpublished practice and procedure, or alternatively at the unbridled discretion of the staff member of
23

the Department of Corrections. 107. A usual outcome of these interviews is that the
parolee, in custody, will waive his rights to Morrissey V. Brewer (due process) and Gagnon v. Scarpelli (counsel), punra.
108. Upon information and belief, there is no procedure available whereby a parolee can obtain counsel to assist in the decision whether to waive a hearing under Morrissey. Rather, the waivers taken by Defendants' agents, and alleged in this complaint to be void, are routinely simultaneous waivers of (1) the right to due process and (2) the right to counsel.
109. Upon information and belief, in the event a parolee fails to waive his right to hearing and counsel, and rather, presses for the right to counsel, it is the pattern or practice of the Defendants' agents to deny the request for counsel, in virtually all such cases, on the invalid ground, among other invalid grounds, that the parolee is competent to represent himself or that the charges are not difficult to defend.
110. Statistical information regarding the numbers of appointments of counsel, and the frequency of uncounseled parolee waivers of due process is not currently published data, and but for a public records act request, California Government Code sec. 62504-6268, made in 1991 by an attorney for the members of the plaintiff class, and but for diligence by counsel herein on behalf of plaintiffs, upon information and belief, no member of the public has ready access to the facts surrounding the high rate of waivers of revocation hearings, complained about herein.
111. Under current Department of Corrections procedures, the information about numbers of hearings, and the numbers of
24

purported waivers of hearing and counsel are not published. However, such data, for the annual year 1993, have been provided to plaintiffs' counsel by oral communication with Defendant McGillivray.
PLEA BARGAINING OR "SCREENING" 112. Upon information and belief, screening (plea bargaining) was instituted in about 1985, not as a fairness mechanism, but largely to speed up revocations. 113. When.a hearing is conducted, under current circumstances, the Department of Corrections hearing panel (often or usually composed of one person), an employee of the
Department, approves the recommendations of the Californi a
Department of Correction's parole agents in about 98% of cases.
114. Upon information and belief, the improbability of acquittal and the probability of return to prison on some charge, is generally known to parolees.
115. Upon informati6n and belief, parolees are commonly aware of the fact, alleged elsewhere in this complaint, that due prodoiser, awit described in Morrissey and Gagnon are routinely ignc dOr dAsobeyed by Defendants and their agents in the conduct of pre-hearing revocation proceedings and in the conduct of the final revocation hearings, when conducted.
116. Upon information and belief, there exist unpublished criteria, whereby Department of Corrections staff are influencing and inducing parolees to give up their rights to due process and to counsel. Alternatively, Department of Corrections staff are
25

in fact influencing and inducing parolees to give up their rights to due process and to counsel.
117. Decisions whether to revoke a parolee's parole, or to conduct a criminal prosecution on a new offense, or to do both, are made on criteria, which are not public or known, except to prosecutors.
118. Alternatively the decision to revoke parole or to conduct new criminal proceedings is discretionary with individual peace officers or prosecutors, made without any criteria at all, and is arbitrary and capricious.
119. Thus, a parolee cannot plea bargain his parole revocation charges without risk that his negotiation (or refusal to negotiate) will result in the bringing of separate criminal charges or will affect any pending criminal charges.
120. The process of having the custodian (Department of Corrections) seeking waiver of a person's constitutional rights while the person is being interrogated and while the person is in custody, does not serve fundamental fairness.
121. The parolee does not have the benefit of consultation with counsel prior to the plea negotiations, nor the benefit of the presence of counsel in the plea negotiations session, so the plea-bargaining cannot fully and fairly benefit an accused where he is unable to proffer the strengths of his defense and the valid challenges to be made to the State's case.
122. Fairness in plea bargaining consists, in part, of the parties' relative capacity to investigate and to argue persuasively about the import of the evidence produced. Under current "screening" procedures, parolees (in custody and without
26

1 counsel) have no such capacity to investigate and argue.

2

123. Upon information and belief, there is likelihood that

3 Defendants weak cases are readily plea bargained, in the parole

4 revocation process.

5

124. Upon information and belief, the screener, representing

6 the interest of summary prosecution and adjudication, typically

7 presents the worst case scenario to a parolee, and unless the

8 parolee is willing to gamble with his freedom and the outcome, he

9 is induced to plead guilty.

10

125. Within the meaning of constitutional due process, the

11 giving of a guilty plea is not barter; rather, it is supposed to

12 be the settling of facts.

13

126. During plea bargaining sessions, by considering no

14 only what offenders say, but what witnesses, victims, police, and

15 others say, negotiators purport to agree on 'what happened' and 16 are better able to determine appropriate charges and sentences in

17 given cases.

18

127. However, there is no such agreement on "what happened"

19 in the screening process, as it is current enforced.

20

128. Moreover, in the parole revocation "screening" session,

21 for /ack of an attorney, no one is competently representing the

22 bes3nterests of the parolee.

23

129. For lack of an attorney, there are also violations of

24 the 5th Amendment in the screening process.

25

a. If the uncouneeled parolee is astute enough to

26 invoke his Fifth Amendment ri\ght, he will likely be denied the

27 opportunity for a screening, inasmuch as the parolee cannot

28 explore the possible consequences of an admission without making

27

admissions. b. Besides, if the parolee engages in screening and
later rejects the screening offer, he will probably have given an admission to the Department of Corrections screening officer and he has risked that such evidence will become known to the Department of Corrections hearing officer, a fellow employee of the screening officer, within the Department of Corrections, which hearing officer will ultimately hear his case.
130. In the screening session, the parolee does not know what are the practices and policies of the California Department of Corrections.
131. Typically, and upon information and belief, in the parole revocation process, law enforcement officers second guess the process of adjudication and overcharge to compensate for the negotiation process.
132. Upon information and belief, some guilty parolees plead guilty to inaccurate accounts of their criminal or unlawful behavior.
133. In no other forum known to plaintiffs can plea bargaining result in a term of incarceration after plea bargaining which has been conducted between a prosecutor and an unrepresented defendant.
134. As a consequence of the summary "screening" conducted in most parole revocation matters, and for lack of judicial or quasi-judicial scrutiny in the bargaining process, there is little or no opportunity for evidence to be challenged carefully.
135. Plaintiffs are generally unable to conduct any
preliminary investigation prior to the bargaining session, and
28

where adversarial challenge to the evidence is discouraged or not possible, plaintiffs' appraisal of the evidence is likely to be erroneous.•
•••
136. Organizational pressures brought to bear by defendants encourage quick bargaining, and such pressures undermine any interest in resolving the "screening" with a high degree of certainty about the guilt of a parolee, about the factual underpinning of guilt, and about the public policy in favor of dispositions, alternative to prison.
137. A proliferation in plea negotiations has resulted in the increase in incarcerative terms for those who, if due process were satisfied, would receive placement in community facilities, treatment and social services assistance, instead of state prison commitment.
138. Upon information and belief, as contrasted with criminal sentencing generally, where there is both great discretion and great disparity is in adjudicative decisions whether or not to incarcerate, the "screening" staff of the Department of Corrections rarely, if ever, consider releasing a prisgper, and rarely consider or effect some disposition other than4eimprisonment.
139. Routinely, parolees' decision whether to waive an evidentiary hearing is unduly influenced and coerced, in part, but not limited to by the remarks of the screening officer and/or parolees' knowledge of the virtual certainty that a hearing will result in revocation, by the threat of a longer term after hearing, and by the circumstances of the parolees' confinement,
29

such as by unpleasant jail lockup during the screening session and pending revocation hearing, the failure of work time credits to accrue while in jail, and by other adverse consequences.
•••
140. Upon information and belief, the waiver/screening process is attended only by a staff person of the Department of Corrections and the parolee, and there is no public participation in, observation or scrutiny of the process.
DENIAL OF COUNSEL 141. Any purported written "waivers" of counsel are not knowingly given, in that, the signature on the "waiver" form also purports to be a "waiver" of counsel, and upon information and belief, whereas the Department of Corrections "screener" tells the parolee he is asking the parolee to waive his "hearing" rights, the "screener" does not specifically, separately and affirmatively advise of the right to counsel. 142. Upon information and belief, Defendants' policy is to determine a parolee's entitlement to counsel only if the parolee affirmatively requests counsel. 143. Under the circumstances described above, most parolees sign paperwork which purports to waive both hearing and counsel
all n one phase.
144. The vast majority of parolees revoked and remanded to prison are neither expressly advised of the right to counsel and do not knowingly or expressly waive counsel.
145. In the event a parolee demands counsel, with the exception of rare cases, the request is denied, and for reasons which do not comport with the requirements of the United States
30

Constitution and Gagnon v. Scarpelli. 146. In the event a parolee requests counsel, pursuant to
Title 15 California Code of Regulations, sec. 3901.27.1 et seq., staff of the California Department of Corrections, either the screening officer himself/herself or another staff member, according to California regulations, is supposed to determine the parolee's right to counsel, based, in part, on a presumption of entitlement to counsel.
147. While fuzzy state administrative regulations, in part, purport to provide for appointment of counsel, the Defendants and their employees typically refuse to appoint counsel except in very rare cases, the stringent criteria for appointment, or general policy disfavoring such appointments, in fact, being unpublished.
148. The California Code of Regulations, regarding the implementation of rights to counsel under Gagnon, are so contradictory, vague and ambiguous as to allow for an informal, covert, deprivatory policy, believed to exist, against the appointment of counsel and in favor of the wholesale denial of counsel to parolees charged with a violation.
149. The defendants are exercising unguided discretion or abueng discretion in the appointment of counsel for parolees.
150. It is not known who specifically is responsible for attorney determinations, inasmuch as California regulations authorize the delegation of that power to unspecified California
\
Department of Corrections "staff". 151. California regulations provide that the denial of an
attorney by Department of Corrections may be referred for review 31

by other "appropriate department staff" of the Department of

Corrections.

a. It is unknown who such referral staff are.

•••

b. Review is to be conducted by a "the hearings

division appeals unit" of the Department of Corrections.

c. It is unknown who and what constitutes such unit.

d. It is unknown what criteria or policy is enforced by the hearings division appeals unit, except that it is believed that the informal policy of the unit, if it exists, is wholesale denial of the requests to appointment of counsel presented to it.
152. Upon information and belief, by practice and procedure in many, if not most cases, the screening officers, not being neutral and detached, influence or determine the outcome of a request for counsel, in that the screening officers, who are primarily interested in disposing of the allegations by adducing a guilty plea, are also taking down the necessary information from the client, in order personally to determine, or to refer for determination on the "colorable" quality of the parolee's claim. such as would entitle him to an attorney.
3. Plaintiffs have no assurances that any information shared with the screening officer will not become available to other employees of the Department of Corrections.
154. Upon information and belief, in those cases in which counsel is appointed, the parolee's counsel is appointed by and paid by the California Department of Corrections.
155. The Department of Corrections cannot and should not 32

reasonably and fairly determine what is a responsible use of attorney time in the representation of a parolee.
156. The pay scale and criteria for attorney representation, set by the Defendants, make unduly burdensome or impossible the fair, full and reasonable representation of parolees.
157. A reasonably competent attorney must identify errors in the hearing process, believed to be fairly frequent, and would be obligated, as a matter of reasonable care, to pursue relief by administrative appeal or from an appropriate court.
158. Among other limits and restrictions, the reasonable and supplemental legal services, such as the perfecting of administrative and judicial review, are not compensated by the Department of Corrections.
159. Counsel who serve as appointed counsel for the Department of Corrections are largely inexperienced.
160. Upon information and belief, the hourly rate of pay, and limit on hours for representation is intended to serve or serves to discourage competent representation of parolees.
161. Other than by this lawsuit, no mechanism is known whereby to enforce the parolees rights under Gagnon v. Scarpelli.
162. In the event a parolee is pending new criminal charges, his court-appointed counsel in the criminal matter is of little or no assistance to him in the parole revocation matter.
163. Because the California Department of Corrections exclusively screens and pays the attorneys involved in the revocation process, there are few criminal law attorneys who are experienced in, and able and willing to represent parolees in the parole revocation process.
33

164. As a matter of budget and practice, Public Defenders and other court appointed counsel who represent parolees on new criminal charges, do not presume to represent parolees in a contemporaneous parole revocation proceeding.
165. Because the vast majority of the parolees are essentially coerced into waiving counsel and taking the screening deal within about 10 days of their arrest, often in a location far removed from the site of the arrest, it is difficult or impossible for counsel to intervene to thwart the unlawful waivers.
166. Under the current circumstances, a competent attorney, knowing that preliminary Morrissey hearings are not given, that holds are rarely dropped, that bail is not given, that hearings are delayed, that hearings almost always result in reimprisonment, largely due to the lack of neutrality of the hearing examiner, rather than due to the guilt or innocence of the parolee, and that successful representation would almost certainly require expensive judicial intervention, such a competent attorney would likely recommend to a parolee that the preservation of his constitutional .ights would be expensive, time consuming and ineffectual to afford the parolee prompt or any relief from the constitutional violations which he could assert.
167. In any event, almost all parolees are unable to retain counsel.
168. The policy of the predecessor agency, Board of Prison Terms had been, and upon information and belief, the policy of
34

1 the Department of Corrections is to disallow, a parolee who is

2 not indigent to appear with retained counsel. Rather, it still

3 is the policy of the Defendants and the Department of Corrections

4 to deny retained counsel the opportunity to appear, unless the

5 Department first finds that the parolee qualifies for counsel, as

6 if he were indigent, under their policy, described above, which

7 is to deny counsel in almost all cases.

8

169. The policy of the Department of Corrections forces any

9 competent, retained attorney to expend valuable time and

10 resources in bringing legal appeals or judicial proceedings on

11 the preliminary issue of the parolee's right to representation

12 and on the retained counsel's duty and entitlement to represent

13 the parolee in the revocation proceedings.

14

170. Very few parolees are represented by retained counsel

15 in revocation proceedings.

16

171. Administrative appeals are not promptly given, and, in

17 any event, could not promptly relieve a parolee of an illegal 18 revocation procedure, in that denials of appointment of counsel 19 are routinely delayed, ignored, and thereby are rendered moot by 20 the occurrence of the final revocation hearing, conducted without

21 counsel, or by the re-parole of the parolee, at the conclusion of

22 his term.

23

HEARINGS DO NOT COMPLY WITH MORRISSEY

LACK OF NEUTRAL AND DETACHED ARBITER

24

FOR ADJUDICATION AND DISPOSITION

25

172. In 1993, by California law passed in 1992, the power to

26 revoke a parole and remand a parolee to prison was removed from

27 the Board of Prison Terms to the Department of Corrections.

28

173. The removal was based on the stated facts (1) that the

35

Board of Prison Terms had been adopting the California Department of Corrections' parole agents' recommendations in 98% of its cases, and that (2) it would save money to have the revocation function be conducted in the California Department of Corrections.
174. Under current law, revocation hearings may be, and routinely are conducted by a panel of one person, employed by the Department of Corrections.
175. Under due process of law, the revocation hearing involves a two-step process: (1) the first step involves the resolution of factual questions of whether the parolee has in
fact violated one or more of the conditions of supervision. (2)
The second step is a predictive and discretionary one: should the parolee be reincarcerated or are alternatives appropriate?
176. Due process serves not only (1) the integrity of the
process of fact finding, but also, (2) the full and fair
consideration of options for disposition, and also serves (3) the interest in preserving the dignity of the litigants, and (4) the integrity, legitimacy and credibility of the revocation process.
177. Due process, through adjudication of facts and choice of options for dispositional alternatives, is an important comp_o- nent of the social process whereby decision-making give meaning to our public values.
REFUSAL OF WITNESSES IN HEARINGS 178. Pursuant to state regulations, but in violation of due process, witnesses may be subpenaed to Morrissey hearings only if the proposed witness is adverse to the interests of the parolee. 179. Witness requests, whether of adverse or exculpatory
36

witnesses, are to be screened by the "hearing coordinator", an employee of Defendants.
180. Under California Code of Regulations, Title 15 Sec. 3901.25.7, the parole hearings division of the Defendants' agencies has final responsibility to decide whether to issue a subpena, and such responsibility may be delegated to California Department of Corrections staff.
181. When and if granted, upon information and belief, a subpena must be served by parolee or by some designated agent of the parolee, and may not be served by an official Marshall or by an agent of the Defendants.
182. No procedure exists for the prompt enforcement of the power of subpena.
183. In the likely event that an unrepresented parolee asks California Department of Corrections staff for attendance of witnesses, but fails promptly and formally to request the issuance of subpenas, subpenas are not issued and served, and the witnesses need not attend, whereas due process requires compulsory attendance of the witnesses.
184. Defendants are executing a pattern and practice of denyjng plaintiffs the right to have testimony adduced in their behaA; from any live, percipient witnesses in Morrissey hearings, and are instead basing decisions on evidence which is purely documentary and which is second and third hand hearsay, or even confidential, so that the "evidence" adduced is often utterly unreliable and unworthy of weight.
LACK OF DEFINITIVE DECISION CRITERIA 185. There are no known, published decision criteria for
37

"adjudication" and disposition of the parolees who come before the hearing examiner of the Department of Corrections.
186. Inasmuch as all or nearly all persons brought before are reimprisoned (i.e. their reimprisonment is confirmed), it is alleged upon information and belief, that any reasons given for the adjudication and disposition, do not serve substantial justice, but rather serve the policy of the defendants, which is arbitrary and capricious, and which is believed to incorporate, to be influenced by, and to include one or more of the following: (1) numerical quotas; (2) election year politics; (3). defendants' budget allocations; (4) post hoc assessment of prison space; (5) knowing or intentional maintenance of overcrowding; (6) implementation of parole officers' capacity for caseload handling; (7) response to parole officers' and Legislative lobbying for an increased "rate" of incarceration; (8) other considerations which should not fairly and properly influence the processes of fact finding and reimprisonment.
FAILURE TO USE ALTERNATIVE DISPOSITIONS 187. As a consequence of the fact that the Defendants run the entire parole revocation process and also conduct prison
planning, the Defendants are in a position to determine, appear
to determine, and do determine what parole findings and dispositions are suitable to the personal policy of Defendants or to the political policy and advantage of the Governor and of the Youth and Adult Corrections Agency.
188. Such dispositions have little or nothing to do with the relative guilt or innocence of an alleged parole violator, and nothing to do with objective and predictive criteria for invoking
38

1 re-incarceration as a disposition, upon a finding that a parolee

2 is in violation of parole.

3

189. With few exceptions, which are unknown to plaintiffs,

4 parolees who are charged, upon finding of violation, after waiver

5 or after hearing, are remanded to prison.

6

190. As a consequence of the overlapping custodial,

7 adjudicative, and sentencing duties of defendants, (both to

8 maintain and plan prisons, to determine guilt or innocence, and

9 to determine whether re-imprisonment is appropriate), as a matter

10 of public policy there is no reasoned factual basis underlying

11 the adjudication and disposition processes, nor under the

12 facilities planning process.

13

191. It is in the interest of defendants, and upon

14 information and belief, it is defendants' intent and desire to

15 vary the prison population for their own political and budgetary 16 interests, to the disadvantage of the rights and needs of the 17 parolees, to the disadvantage of the people of the State of

18 California, and to the disadvantage of alternative dispositions,

19 such as community treatments, which would become available to

20 parolees, but for the allocation of a high percentage of public

21 resources for imprisonment.

22

23

LACK OF PUBLIC SCRUTINY IN REVOCATION PROCESS

24

192. The conduct of the parole revocation "process" is

25 beyond any realistic public scrutiny of any kind. Almost all

26 revocation actions are unattended by and unscrutinized by the

27 public, by the bar, or by the representatives of government in

28 the legislative and judicial branches of government.

39

1

193. Virtually all revocation actions which result in the

2 remand of a parolee to prison are attended only by the parolee

3 and by one or more persons employed by the California Department

4 of Corrections, except in rare cases where visitors are allowed,

5 in the broad discretion of Defendants, for "educational and

6 informational" purposes, and if such visitors have given

7 sufficient advance notice of a desire to attend.

8

CREDITS

9

194. According to current California regulations, Title 15

10 CCR S 3901.35.1, parolees can be denied worktime credits against 11 their prison sentence where the authorities find at the

12 revocation hearing that the parolee is unsuitable for reduction

13 of the period of confinement because of the circumstances and

14 gravity of the parole violation, or because of prior criminal

15 history.

16

195. As exercised in the California parole revocation

17 process, upon information and belief, this broad discretion,

18 without further limiting criteria, and under all the 19 circumstances described above in this complaint, is routinely 20 exercised arbitrarily or abused, so as to constitute a violation
21 of due process.

22

196. Moreover, upon information and belief, the power to

23 grant or to retain credits can be used and is being used to

24 punish a parolees refusal of the previously proffered plea

25 bargain.

26

27

28

40

CALIFORNIA ADMINISTRATIVE AND JUDICIAL REMEDIES ARE UNAVAILING TO PAROLEES
197. While there is a process of administrative review from disposition of guilt and reincarceration after hearing, the administrative review is neither prompt, nor effectual.
198. By regulations, California Department of Corrections officials are responsible to do reviews of the hearing process.
199. The identity of persons conducting any such reviews is unknown.
200. The criteria or policy, if any, enforced by the appeals unit, is unknown, except that it is believed that the informal policy of e un• it, i•t it• eXls b, lb W u ewa e affirmance o appeals presented to it.
201. Any such appellate review is supposed to enforce "established parole hearings division policy". Such policy, except as described in the preceding paragraph, is unknown.
202. The California Department of Corrections routinely fails to promptly allow, consider and dispose of administrative appeals after administrative hearing.
203. Routine delays in the process of administrative appeals makes any such appeals moot or unhelpful to the parolees. Such dela5 include: months' delay in making available a tape recoiding of the hearing; and months' delay in deciding the administrative appeal.
204. In those rare judicial challenges made to the parole revocation process, the state attorney routinely claims that administrative appeal is an avenue of relief that must be exhausted before a parolee is entitled to request judicial
41

process. 205. The relatively short---usually 6 month or 1 year---
terms imposed by the California Department of Corrections, pursuant to the terms of California Penal Code sec. 3057, make it essentially impossible to do a state petition for habeas corpus to relieve the unlawful confinements in individual cases, with or without first exhausting state remedies.
206. Pursuant to California Superior Court Rules of Court, Rule 260, a petition for habeas corpus relief will usually be pending at least 60-90 days before any relief will be granted.
207. The relief provided in state habeas corpus, if the petition does not first become moot, while the case is pending, is likely to be limited to a Morrissey rehearing.
208. Thus, any prior error or omission, committed by the Defendants or the California Department of Corrections hearing examiner may be "cured", even if egregious, without consequence to the parolee's custody status.
209. Because grants of habeas corpus by the superior court are not published authority, there is no record of any recent grants of habeas corpus whereby the California Department of Corrections is obligated under law to obey due process.
CAUSE OF ACTION DENIAL OF DUE PROCESS OF LAW 210. Neither charging, plea negotiations, adjudication or disposition are being conducted by a neutral evaluator or arbitrator, but rather are decisions being made by the Executive Branch of State government, and being made for reasons which may be, appear to be, and are being contaminated by political
42

considerations having nothing to do with the guilt or innocence of the parolee, the level of his guilt, and the needs of the parolee or the needs of the public for protection, in violation of due process of law under the 14th Amendment of the United States Constitution.
211. Plaintiffs infer and allege, based upon all the allegations made herein, that the Defendants, including defendants Wilson and Gomez, through pronouncements and enforcement of policy, which are not public and furthermore which are unknown to the bench, to the bar and to the Legislature, do direct, dictate and influence the following: criteria for the rearrest of parolees, the numbers of persons arrested as parole violators, the practice and procedure used in the "screening" (plea bargain) process, the nature and content of the plea bargain "deals" offered, the procedures, illegal such as they are, for conducting parole revocation hearings, the alternative sentencings available, if any, and the rate at which alternative sentencings will be invoked.
212. In short, the Defendants discretionarily control about 50% of the population which is annually admitted to prison, without any judicial or quasi-judicial intervention or participation, in violation of due process of law under the 14th Amendment of the United States Constitution.
213. Failure to conduct prompt preliminary hearings, transportation of parolee to prison pending final adjudication, plea bargaining with parolee while parolee is in custody and unrepresented by counsel, coercion, by overstatement of the department's case, by failure fully to advise parolees of the
43

1 entitlements under Morrissey, failure to enforce Gagnon, 2 wholesale refusal to enforce Gagnon, discouragement of 3 entitlement to counsel thwarting of the assertion of the right 4 by advising of the unlikelihood that it would be granted, failure 5 to promptly and in good faith pursue the parolee's rights under 6 Gagnon before a neutral decision-maker on its enforcement, lack 7 of certainty or constancy in the appellate process whereby the 8 right to counsel is supposed to be enforced, and indeed, use of 9 the administrative review process as a delaying tactic whereby to 10 instill in the parolee the prospect that any pursuit,of the right 11 to counsel would ultimately harm the parolee's chances of prompt 12 release from custody; discouragement of the exercise of the right 13 to counsel and of the right to a hearing by counseling a more 14 harsh outcome, if the right to counsel and hearing is pursued, 15 such as the prospect of remaining in an overcrowded jail, long 16 delays before a Morrissey hearing can be held, without advisal of 17 and conduct of a preliminary parole revocation hearing, failure 18 to advise of the constitutional right to have a hearing officer 19 make judgment about the severity of the charge and the relative 20 consequences of a finding of guilt of some, but not all of the 21 charges, failure to conduct neutral and diligent investigation 22 for parolee before arrest, before plea negotiations and before 23 hearing, failure to advise of the constitutional entitlement to 24 subpena any relevant.evidence, discouragement or denial of 25 subpena for defense witnesses; failure to assist in obtaining, 26 serving, and enforcing subpenas; advisals of parolees that these 27 circumstances are normal and that therefore the Morrissey hearing 28 is not likely to assist the parolee's lot; intentionally or
44

1 negligently misleading parolees about the weight of the evidence 2 and the sustainability of the charges, failing to negotiate any 3 alternatives to prison; making no investigation about and taking

4 no regard for the needs of the inmate for drug treatment or other 5 therapeutic interventions nor for the needs of the public for 6 sound policy, including protection; among other things alleged
and to be shown, individually and collectively violate due

8 process of law under the 6th and 14th Amendments to the United

9 States Constitution.

10

214. Defendants' use of informal or unpublished,criteria,

11 issued by Defendants or by their agents, for charging, lodging of

12 parole holds, and issuance of arrest warrants; for consideration
1
13 of release pending administrative or judicial consideratioi of

14 alleged wrongdoing; for plea negotiations; for conducting parole

15 revocation hearings and for regulating evidence and live

16 testimony at such hearings for making findings of violation, and

17 for making dispositions of violation, and in combination with all

18 the other actions complained about herein, violates due process

19 of law under the 14th Amendment to the United States

20 Constitution.

21

terimtively, the discretion described in performance

22

functions noted in the proceeding two paragraphs is

23 routihely abused and exercised in so utterly arbitrary and

24 capricious a manner as to violate due process of law.

25

REMEDY

\

26

WHEREFORE, PLAINTIFFS RESPECTFULLY PRAY FOR THE FOLLOWING

27 RELIEF:

28

1. Authorization that the matter may proceed as a class

45

action, and the approval of such notice to members of the class as is just, in conformity with the rules of court and in conformity with due process.
2. Declaratory relief that, under the circumstances described herein, placement of the parole revocation process in defendants' dominion and control violates due process of law, and that therefore, the provisions of the Statutes of California, namely, Laws of 1992, Chapter 695, which purports to authorize transfer of broad authority over parole revocation to the Governor and to the other defendants are unconstitutional in violation of due process of law.
3. That Defendants and their agents be enjoined forthwith from conducting parole revocation hearings and parole revocation dispositions of any kind.
4. Pending final resolution of this matter, that parolees' arrest warrants and holds be first considered for sufficiency by a California State administrative law judge, that parolees who are arrested be forthwith arraigned, or be arraigned within 48 hours, before such an administrative law judge, for prompt determination of release pending hearing for determination of entitlement to counsel, for setting of prompt preliminary parole revocation hearing, and for setting of prompt, final parole revocation hearing.
5. As a final resolution of this matter, that the sufficiency review and arraignment and other preliminary matters described in the proceeding paragraph be permanently conducted by California State administrative law judges or before such other neutral and detached hearing body as satisfies due process of
46

law. 6. That Defendants and their agents be enjoined from
conducting plea negotiations with parolees unless and until counsel has been appointed and the negotiation can be made by and through counsel on the parolee's behalf.
7. That the defendants, to the extent only that the defendants may retain any lawful residuary control over parole and the parole revocation process, shall be preliminarily and permanently enjoined to comply with Morrissey and Gagnon.
8. That defendants shall publish procedural and substantive rules and regulations and provide notice and conduct public hearings on its practice and procedures in parole revocation matters, in compliance with the California Administrative Procedure Act or with substantially similar Provisions as may satisfy due process of law.
9. Damages in an amount to be determined after trial, for the named individual plaintiffs Williams and Cervantes.
10. Reasonable attorneys' fees. 11. Costs of suit. 12. Such other and further relief, as to the court, may sees ut and proper in the premises.

DAT

, 1994

PAUL COMISKEY, ESQ.

RICHARD HERMAN, ESQ.

ALEX LANDON, ES

LAUREL NELSON SQ.

DAVID PRESCO

JACKSON W

BY:

STEP J. P

ESQ.

47

JURY TRIAL DEMAND
1
Plaintiffs demand jury as to damages,
2

3

4

5 DATED: May 1, 1994

STEPHEN P PE LLO JR.

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

48

Judge: ( i4(....._Magl e?Gg9
A

DEPUTY CLERK'S CRECILIBT FOR NEW CIVIL ACTIONS

Case Number:

(1(Z11

A

Civil Actions (excluding prisoner matters):
3 * Basis of Jurisdiction: ,
If diversity (4) identify):

•

Plaintiff:

Defendant: * Cause of Actinni * Nature of Suit:

uce /fer3
az/ 0

* Origin:

/

ATTORNEY(S)
FEE PAID

NUMBER INCLUDED (YES/NO)

, 0/GOV'T) Receipt #

3/

ISSUED SUMMONS

wilK (016;;),'OT

REQUIRED)

NAG CONSENT FORMS eiVEN/NOT REQUIRED) -,

NOTC re COUNSEL IDENTIFICATION (G

NOT REQUIRED)

PSC ORDER GIVEN/ OT REQUIRED)

iMci DATE:

TIME: /0 33-0

COma* :

-
, FORM COMPLETED BY:

JS 44 - (Rev. C1789)

CIVIL COVER SHEET

The JS-44 civil cover sheet and the rules of court. This form, approved

information contained het,— neither replace nor supplement the filing by the Judicial Conference of the United States in September 1974, is

and service of pleadings oi required for the use of the

other papers as Clerk of Court

required by law, except as p for the purpose of initiating

rovided by local the civil docket

sheet. (SEE INSTRUCTIONS ON THE REVERSE OF THE FORM.)

I (a) PLAINTIFFS

TUJ 1-1c "1-7" CE-evelroT

e.

1..,J

irLs

on)

----1(t,e cc..., Ai iSehifC F.7

eThife5 S',WLAW. f-

(b) COUNTY OF RESIDENCE OF FIRST LISTED PLAINTIFF /v5

Se:r.

(EXCEPT IN U.S. PLAINTIFF CASES)

DEFENDANTS

s7-,91.-

0 f- C4 L- / fole0/44

(100- 7>E.TE LA1( Sot.)

.19A tr0 Vrq 2_ /

7 tL th

/-4 .

0-LAD I T-H- A. ThoGILLIchet9if
COUNTY OF RESI6ENCE OF FIRST LISTED DEFENDANT (IN U.S. PLAINTIFF CASES ONLY)
NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE TRACT OF LAND INVOLVED

(C) ATTORNEYS (FIRM NAME, ADDRESS, AND TELEPHONE NUMBER)

- -.57-g P144

-eEle e

? 0.

g

3 g-

ATTORNEYS (IF KNOWN)

So

.7--

1/") S77

ec
I
- 6 S7- .,25

D /6 60 edg fa/6g 317-59cc

g4c-r- C

II. BASIS OF JURISDICTION (1.11COAN. M ONE SOX OtlY)

o 1 U.S. Government
Plaintiff

Se'C,zFuederel Question .S. Government Not a Party)

o 2 U.S. Government
Defendant

04 Diversity (Indicate Citizenship of in Item 110

III. CITIZENSHIP OF PRINCIPAL PARTIES

(PLACE AN u IN ONE 1102

(For Diversity Cases Only)

FOR PLAR4T1FF AND ONE BOX FOR 06FENOM47)

Citizen of This Slate

7PTF
"1

Incorporated or Principal Place

PTFDEJ 04 4

of Business In This State

Citizen of Another Stet* 02 02

Incorporated end Principal Plies 05 05

Citizen or Sullied of a 03 03

4 CA iluelneee in Another State-
Foreign Nation

DI 06

Foreign Country

IV. CAUSE OF ACTION (CfTE THE a& CM. =CUTE (10ER MICH YOU ARE FIUNO NA WRITE A BRIEF ITMTFJABIT OF CAME,

00 NOT COE JUNIXIICT1ONAL STATUTES UKESS DIvERSITY)

V I L.-

c Z— 41 5.„5 4C7

11g3 e

7B S

f S. / 3'f 3 09(3 )

00-4,1

y Dec G /"-aeOlTDOZ 9,sAsS Z4-34.roc7iA

SLief 64.0 Dt4-00fig2it,

V. NATURE OF SUIT (PLACE AN x IN ONE BOX ONLY)

CONT T

TORTS

iFORFEITURE/POULTY

BANKRUPTCY

0 110 Inesante

o120 'Awns

0 130 MINK Ad

0 140 Negotiable Instrument

0 150 Recovery of Ovwpayment 8 ErAorcernent of

Judgment

0 151 Medicare Act

0 152 Recovery Deeltailed

Sextant WWII

(Excl. Veterans)

0

153

Recovery of of Vekeren's

Orerpaynwint Beneete

0 180 Slockholdenr Sults

01 Other Ccrand

0 195 Calked Product Liability

REAL PROPERTY

PERSONAL INJURY

0 310 Airplane

0 315 Airiest* Product

Uablky

0 320 Agar& Libel a

Sandal

= 0 330

" EmP sre '

0 340 merino

0 345 Menlo Product LimblIty

0 350 Motor Vehicle

0 355 Motor Vehicle Produd LiebIlly
0 WO Other Pdeonel

ININY

CIVL RIGHTS

PERSONAL INJURY

D 342 PMerem d nmaalp=

0 395 PPerroideuWctelWIrearrly'''

0368 Asbestos Personal

.

L"AlehVlItPy ietkiel

PERSONAL PROPERTY 0 370 astir RENO 0033781011M1.1grIPn eLresnodninag
as Property Dernoll•
0 Property Demme Poirot UablIty

' PRISONER PITMONE

0 IRO Agrkullure

0 520 Other Food it Drug

0

825

onPgroFpiesrilsyis2s1

&Azure of USC 881

0630 uquer Wad

00•M30O mRiRna, TRru,9ck,

0 860 °°8=44°Taillti

' -

n 690 Other

LAJOR '
0 710 Fair URN Samderds Act
0 720 Labor/Mart Relations
0 730 Labe r AVM Reporting 8 Dleckeure Act

q 0

422 423

A2p11roUnS_C 1_55 20 USC 157

PROPERTY RIGHTS 0 MI Copyright, 0 830 Nowt 0 840 ltedemerk
mon' SOCIAL
0 861 HIA mess 0 862 88dt Lung (923) 0693 DIWC/DIVN411,406(9)) 0 864 sato ore VA 0 885 Rai wawa

0 210 Land Condemnation

CI

0 220 Foreclosure 0220 Rent Lease 8 Ejectment

Ct

0 0

240
245

iTxotnsRtouLmasndUglily

0 290 Al Other Real Property

• ........
79""

U 510 Notions **dee SHeeelsestewe
0 530 Gonad 0 535 Dan Pen* *400 Meetkplawai Othw

0 740 Railway Labor Act
0 790 Ober tabor ' Utigelion
0 791 Empl. Rel. km.
Soculay Ad

FEDERAL TAX SUITS 0 870 lutes (U.& INintlf
or Wended) ' 0 571 ins—ThirdPertr,.
26 USC MOO

V1. IGIN

081s.
(PLACE AN x IN ONE pox ONLY)

liansferred from

7I Original Proceeding

02 Removed from State Court

0 3 Remanded from Appellate Court

0 4 Reinstated or Reopened

0 5 another district (3PIKATY)

06 LadlidistrIct Litigation

OITER STATUTES

0 400 suar

410

R118041111ommi Antra!

0 490 eerie and anew

0 450 Commerce/ICC Reles/e1

0 450 Depoream

0 470 Rack/dam Maimed end

Compl,Cagerdtatioms

0 810 SaledIve Samba

0 850 Frairkise/Caemcdtleal

Exchmge

0 875 Cualomer Caulen011

12 USC 3410

0 891 Nplcultuml Ads

0 892 Ecorionac Stablzedon

Act

0 893 Erwironmentel Mallon

0 8 a 4 Enmpy Allocation Act

CI 896 Fnissicen of

Intomidion Act

0

900

aopord Fos Under Equal

DstenTinelk Access lo

Mika

0 950 Constikdonelly d

0

990

m seey.

seelulee
&anon

Adm.

Appeal to 01 Judge from

MalikKrate Judgment

cAMa*F VII.

REQUESTED IN CHECK ampulla "'UNDER

IF THIS FR.C.P.

Is 23

A

CLASDSi,AcCioTrIOp.Nr.

D

VIII. RELATED CASE(S) (See instructions):

IF ANY

„

- ChockYES only if chnnandod in comploInt JURY DEMAND: iAss o No .
NUMBER

DATE

SIGNATURE

UNITED STATES DISTRICT COURT

94- 0671

Case: 720-1 Parties: Plaintiffs Vincent Cervantes and Steven Williams Title: Civil Complaint-Class Action for Declaratory and Injunctive Relief for Damages Date Filed: 5/2/1994 Date Served: 5/2/1994 Date Received: 2/18/04

art_ all Prrim

cf,

ctir-L tir■or rpofak 6fik si ir,j

Tkio act

empv

Tab b

 
 . "

Ì"~ ;,

1 BINGHA McCUTCHENLLP

KAN L. KENNAR (State Bar No. 141925)

2 GEOFFRY T. HOLTZ (State Bar No. 191370)

KRTEN A. PALUMO (State BarNo. 215857)

3 Thee Embarcadero C~ter

San Francisco, Calforna 94111-4067

4 Telephone: (415) 393-2000

5 ROSEN, BIEN & ASARO MICHAL W. BIEN (State Bar No. 96891)
6 155 Montgomer Street San Francisco, Calforna 94104
7 Telephone: (415) 433-6830
8 STEPHEN J. PERRLLO, JR. (State Bar No. 56288)
9 P.O. Box 880738 San Diego, Calforna 92168
10 . Telephone: . (619) 277-5900
11 . Attorneys for Plaitiffs

PRISON LAW OFFCE DONALD SPECTER (State Bar No. 83925) Genera Delivery
San Quenti Calforna 94964
Telephone: (415) 457-9144
ALEX LAON
(State Bar No. 50957).
2442 Four Avenue San Diego, Californa 92101 Telephone: (619) 232-6022

12

13

IN TH UNED STATES DISTRCT COURT

14

FOR TH EASTERN DISTRICT OF CALIFORN

15

16 JERRY V ALNIALD YANCY,

HaSSlE WELCH, NGID BUCKIS, 17 MAO CARLO, PHILIP CASTILLO,

18

G::ORGE CORTES, FRCIS CULOTTA,
DAVI DIXON, KA HORN, SCOTT

19 IROFF, WALTER JONES, MUSTAFA

KHIL, RAYMOND LATIORE,

20 ANRE LYONS, CLAUDE McDANL,

NATH MORR, EDWAR
21 NAVARO, STEVE O'DONOHU,

No. Civ. S-94-0671 LKKGGH
FITH AMNDED .
CIV CLASS ACTION COMPLA FOR DECLARTORY AN
INJUCTIV RELIEF 42 U.S.C. sec. 1983 and 28 U.S.C.
sec. 1343(a)

22 OGWUOBU OJOIR WILrn PATTON, JAMS ROBINSON, TROY SCUY,

23.
24 25 . 26 .

MA ST. JOHN, GREGORY STRONG, ALFRD TAYLOR, CHRTOPHER THOMA, JI WATSON, and CURTI
WILIAS (now mown as CHAES
JOHNSON), on their own behalf and on behal of the class of al persons simlarly
situated;

27

Plaitiffs,

28

. '. '.

FIF AMNDED COMPLA (Cae No. Civ. 8-94-0671 LKKGGH) .
214490.2196900-039

9/13/025:25 PM

. ,

1

v.

2 PETE WISON, Governor of

the State of

Californa; QUIIN L. VILAVA,

3

JR., Secretar of

the Youth and Adult

4 , Correctional Agency; CAL TERH,

Director of the CalifoIna Deparent of

5 Corrections; MASELA MONTES, Deputy

Director of the Calforna Deparent of 6 Corrections for Parole and Communty

7 Servces; JAMS W. NILSEN,
Commssioner'and Chaian Board of

8

Prson Terms of

the State of

Calforna;

CAROL J. BENTLEY, THOMA J.

9 GIAQUIO, JOHN W. GILLIS,
MAL C. GUADERR RON E.
10 KOENIG,ARTHF. VANCOURT,

11

Commssioners of

the Board of

Prison Ters

of the State of Calforna; and MICHAL -,

12

CONNOLLY

and EDWAR

MCNAI

Actig Chief

Deputy Commssioners of

the

13

Board of

Prson Terms of

the State of

Californa,
14

15

Defendats.

16

17

A. NATUR OF ACTION

18 19

1.

Plaitiffs are a class of

wrongfly and unconstitutionally deprived of

individuals who have been or are at risk of

being

their liber in connection with the revocation of

20

their parole. The members of

the plaitiff class are being denied their right to counsel under the

21 Sixth Amendment to the United States Constitution, as interpreted in Gagnon v. SCaìell.411

22 U.S. 778 (1973) and related decisions. Moreover, the members of the plaitiff class are being

23 denied due process under the Foureenth Ameedment to the United States Constitution, as

24 interreted in Morrssev v. Brewer. 408 U.S. 471 (1972) and related decisions.

25 26

. . , 2. Parolees are arested without lawf stadads, and are routiely subject to
paaole holds after their arest. Whe on a parole hold~ a parolee canot be released from

27 custody. Such parole holds are routiely being imposed without proper and tiely notice to the

28

parolees of the reasons for the detention or of any

sufcient mechasm to appeal that detention.

2
- FI AMED COMPLA (Cae No. Ciy. 8-94-0671 LKGGH)
214490.2196900-39

. ,

1

3. Prompt and prelimar heargs regarding the cause of a parolee's

2 detention or the stadard leadig to a parolee's arest are not being conducted in Californa. In

3 alost all cases, no hearg is held, whether on th~ basis for the detention or on the charges

4 themselves, until the fial revocation hearg, which may not be scheduled until 45 days to
5 month afer the arest.

6

4.

Many parolees never receive a fial revocation hearg, because they are

7 routiely given an offer of custody in lieu of a revocation hearg. At the tie ths "screenig"

8 offer is made, the parolee is alost always in custody. Parolees are not represented by counsel

9 durg the "screenig" process, and they are not properly and promptly advised about their

10 constitutional rights to counel and to due process, includig notice of charges and a hearg at

11 which they may present witnesses and evidence. Defendants thereby render invald any

12 purorted express or implied waiver of these rights.

13

5. Upon inormation and belief, Defendants' policy is to determe a

14

parolee's entitlement to counel only if

the parolee afatively requests counel. In the event a

15 parolee fails to waive his right to hearg and counel, and rather, presses for the right to counel

16 and a hearg, it is the pattern or practice of the Defendants to deny the request for counel in

17 vially all such cases on constitutionally invalid grounds. Upon inormation and belief, in the

18

unusual case where a parolee is advised of

the denal of

his request for counsel, he or she is not

19 routiely and timely advised of the right to appeal that decision, and there is no mechansm for

20 prompt, fai and adequate presentation of such an appeaL.

21

6. In those rare cases when counel is appointed, the pay scale and criteria

22 for attorney representation, set by the Defendants, renders any right to counel that is aforded

23 meangless, by makg unduly burdensome or impossible the fai, ful and reasonable

24

representation of

parolees. Upon inormation and belief, the hourly

rate of pay ($23.75) and

25 lit on hours (generally 6 hours) for representation of parolees is intended to and does

26

discourage competent representation of

parolees. Moreover, reasonable and supplemental

legal

27 servces, such as the perectig of administrative and judicial review, are not compensated by the

28

Board of

Prison Terms.

3
- FI AMNDED COMPLA (Case No. Civ. 8-94-671 LKGGH)
214490.2I9690~039

. ,

1

7.

The fial revocation heargs do not aford due process to parolees.

2 Witnesses who are and should be notified of the proposed hearng and should be allowed and

3

requied to testify at the hearg are frequently neither notified of

the hearg, nor allowed to

4 testify. In viola~ion of due process, only adverse witnesses are generaly compelled to attend

5 such heargs by subpoena. Witnesses identified by the parolee are not subpoenaed uness the

6 parolee requests the issuance of subpoenas, rather than the attendace of witnesses. Even then,

7 witnesses favorable to the parolee are rarely compelled to attend, and are often not pertted to

8 testify.

9

8.

Adverse witnesses' failure to attend the revocation hearg is routiely

10 overlooked' or the heaag is contiued so that adverse witnesses can be present without the

11

advance knowledge or consent of

the parolee or the parolee's witnesses. Durg such delays, the

12 parolee remai in custody. Such contiuances are unaily burdenome for witnesses who are

13 favorable to the parolee because they, une subpoenaed witnesses, receive no compensation for

14 their attendance. Moreover, without subpoena authority over favorable witnesses, there is

15 inufcient assurance that these witnesses can or will be able to attend a rescheduled revocation
16 hearg.

17

9. At the revocation heargs, it is Defendants' pattern and practice to deny

18

or ilegaly limt plaitiffs' right to have testiony adduced on their behalf

from live, percipient

19 witnesses. In addition, defendants limt or refuse live adverse testiony, thereby denyig

20 parolees their constitutional rights to confont and cross-exame the witnesses and evidence

21 proffered agait them.

22

B. JUSDICTION

23

10.

Jursdiction of

ths cour is invoked puruat to the provisions of

Title 28

24 U.S.C. section 1343(3). The individual defendants are persons who have deprived and contiue

25 to deprive plaitiffs of their federaly guaranteed constitutional and civil rights under color of

26

state law, in violation of

27

11.

Title 42 U.S.C section 1983. Declaratory judgment and prospective injunctive relief are sought under

28

the terms of

Title 28 U.S.C. sections 2201 and 2202. Members of

plaitiff class, on an ongoing

, FIF AMED COMPLA
21448490.2196900-0039

4
(Cae No. Civ. 8-94-0671 LKKGGH)

. - .

1 basis, are being ireparably haed by defendats' ilegal actions, rues, practices and

2 procedures, and there is no sufcient alternative remedy to redress plaitiffs' complait.

3

c. VENU

4

12. Yenue is properly in ths cour, pursuant to Title 28 U.S.C

5

section 1391(b)(1), in that ths judicial distrct is the residence of one or all of

the defendants in

6

ths civil action, and all of

the defendants are residents of

the State of

Calforna.

7

D. PARTIES

8

13. PLAIIF JERRY VALDIV. Plaitiff Jerr Valdivia was paroled

9 from state prison in November of 1993, havig been imprisoned, released from prison on parole,

10 and then reiiprisoned afer parole revocation on several prior occasions. In early 1995, Valdivia 11 was arested on new crial charges and sentenced to a ter of 3 year in state prison. Valdivia

12

was agai screened, found in violation of

parole, and sentenced to a concurent parole revocation

13 term of 11 month. At the tie he was named as a plaitiff Mr. Valdivia had never been to a

14

revocation hearg, because he has always, durg the screenig process, accepted a prof

erred

15 perod of incarceration in state prison without the presence or advice of counel, in violation of

16 due process of law and the right to counel.

17

14. PLA HOSSIE WELCH. At the tie he was named as a plaitiff,

18 PlaitiffHossie Welch was a parole violator incarcerated at the Calforna Intitution for Men at

19 Chio, Californa. Welch was arested on or about December 28, 1993. Although he was found

20

not gulty of

the crial charges, a parole hold issued arsing out of

the same incidents. Afer

21 rejectig a screenig offer, Welch was refused a lawyer to assist in his defene on the ground that

22 he was able to read. Afer one contiuance necessitated when two police witnesses failed to

23 appear, Welch's parole was revoked. Welch'submitted an admstrative appeal from the

24 revocation, which was granted. Welch's request for counel at his rehearg was denied. At the

25 reheaag, the violation and prison commtment were confed. In or about October, 1996,

26 Welch was re-arested for aleged parole violations. Agai his request for counsel was dened.

27 He appealed the denial' of counel on the grounds tht hè was tag psychotropic medication

28

5
FIF AMNDED COMPLA (Case No. Civ. 8-94-0671 LKKGGH)
21446490.2196900-0039

. .

1
2

, . and required the assistance of counel to defend hiself. Upon inormation and belief, the
appeal was not heard until afer the revocation hearg.

3

15.

PLA ALFRD YANCY. At the tie of

the filig of

the fist

4 . amended complait, Plaitiff Alfred Yancy was a prisoner at the Calforna State Prson at

5 6

. . , Chio. Yancy

was origially arested on or about May 2, 1994. Although th~ Distrct Attorney

rejected the crimial charges for prosecution, the

parole revocation process was intiated. Whle

7 in custody, Yancy made repeated requests tht his parole hold be discontiued, which his parole

8 offcer rejected. On or about May 23, 1994, Yancy rejected a screenig offer, and requested

9 counel at his revocation hearg. Although Yancy was told that he would be inormed by mail

10 whether he was to rece~ve a lawyer, the screeng agent indicated on a form that Yancy had

11 waived the right to a lawyer. Yancy's revocation hearg occured on or about June 10, 1994.

12 Yancy renewed his request for a lawyer at the hearg, but was inorred that he could represent

13 hiself. Although he had requested the opportty to present testiony from certai witnesses

14

at the hearg, those witnesses did not appear, not havig been notified of

the hearg.

15

16. PLAIIF NGHI BUCKIS. PlaitiffNgha Buckius was born in

16 Vietnam and has diffculty communcatig in Englsh. He requies'the assistace of an intepreter

17 at parole revocation proceedigs. However, Buckius was not provided an interpreter at any of

18 his screenigs or at his parole revocaton hearg. Defendats failed to enure. that Buckius'

19

waivers of

his constitutional rights in connection with the parole revocation process were

20 knowig, volunta, and intellgent, in violation of due process of law. Defendants also failed to

21

provide Buckius with the minimum requiements

of due process at his parole revocation hearg.

22

17. PLAI MAO CARLO. Defendats failed to provide Plaitiff

23 Maro Caro with the minimum requiements of due process at his parole revocation hearg.

24 Among other thgs, Caro was denied the opportty to present witnesses and documenta

25

evidence at his parole revocation hearg, in violation of due process of

law. Carllo was also

26 not aforded a meangful opportty tÇ) appeal his parole revocation decision. Carllo ha no

27 adequate remedy at law to address these due process violations, because the appellate procedures

28

6
FI AMED COMPLA (Case No. Civ. 8-94-0671 LKKGGH)
214490.2196900-039

1 available to hi do not provide a prompt and adequate resolution of appeals of parole revocation

2 decisions. Carllo's appeal was improperly denied.

3

18. PLAF PHILIP CASTILLO. Defendants failed to ensure that

4

Plaiti

Phillp Castilo's waivers of

his constitutional rights in connection with the parole

5

revocation process were knowig, voluntar, and intellgent, in viólation of due process of

law.

6 Castillo was not provided with an attorney or other assistance durg the parole revocation

7 process when fudamenta faiess requied it, in violation of due process. Castillo's due

8 process rights were also violated by Defendants' failure to aford hi a meangf opportty

9 to appeal the denial of counel and his parole revocation decision. Castillo had no adequate

10 remedy at law to address these due process violations, because the appellate procedures available

11 to hi do not provide for resolution of appeals of denals of counel prior to the fial revocation

12 detemmation and do not provide for a prompt and adequate resolution of appeal of parole

13 14 15

revocation decisions. Castillo's appeal was improperly

19.

PLAF GEORGE CORTES. Plaitiff

provided a prompt preliar hearg at or reasonably near the place of

denied. George Cortes was not his aleged parole

16

violation or arest at which he could challenge the existence of

probable cause for his detention;

17 18

. . inviolation of due process oflaw. In addition, Cortes' fial revocation hearg was not held
promptly enough after his parole hold was imposed to afford hi with due process.

19

20.

PLAIIFF FRCIS CUOTTA. Plaitiff

Francis Culotta was not

20

provided a prompt prelimar hearg at or reasonably near the place of

his alleged parole

21 vinlation or arest at which he could challenge the existence of probable cause for his detention,

" . 22 in violation of due process oflaw. In addition, Culott's fial revocation hearg was not held

23

promptly

enough after his parole hold was imposed to aford hi with due process.

24

21. PLA DAVI DIXON. Defendants faied to ensure that Plaitiff

25

David Dixon's waivers of

his constutional

rights in connection with the parole revocation

26 process were knowig,. volunta, and intellgent, in violation of due process oflaw. Dixon was

27 not provided with an attorney or other assistace durg the parole revocation process when

28

fudaenta faiess requied it,

in violation of due process. Dixon's due process rights were

7
21448F4IF9AM0E.D 2CO1MP6LA9(0Ca0se N-o.3Ci9v. . . 8-94-0671 LKGGH)

. .

1 also violated by Defendats' failure to afford hi a meangf opportty to appeal his parole

2 revocation decision. Dixon had no adequate remedy at law to address these due process

3 violations, because the appellate procedures available to hi do not provide for a prompt and

4 , adequate resolution of appeals of parole revocation decisions. Dixon's appeal was improperly

5 denied.

6

22.

PLAIF KA HORN. Defendants failed to provide Plaitiff

Karl

7 Horne with the minimum requiements of due process at his parole revocation hearg. Among

8 other thgs, Karl Home was improperly denied his right to present witnesses and to confont

9 and cross-exame adverse witnesses.

10

23. PLAI SCOTT IROFF. Plaiti Scott Iroffwas not provided with

11 an attorney or other assistace durg the parole revocation process when fudamental faiess

12 requied it, in violation of due process oflaw.

13

24.

PLAIIFF WALTER JONES. Plaiti

Walter Jones was not provided a

14

prompt preliar hearg at or reasonably near the place of

his alleged parole violation or

15 arest at which he could chalenge the ~xistence of probable cause for his detention, in violation

16

of due process of

law. In addition, Jones' fial revocation hearg waS not held promptly enough

17 afer his parole hold was imposed to aford hi with due process.

18

25.

PLAI MUSTAFA KHIL. Plaitiff

Mustaa Khall was not

19

provided a prompt preliar hearg at or reasonably near the place of

his alleged parole

20

violation or

arest at wttch he could chalenge the existence of probable cause for his detention.

21 In addition, Khil's fial revocation hearng was not held promptly enough afr his parole hold

22

was imposed to afford hi with due process. Khali was also not provided with an attorney

or

23 other assistance durg the parole revòcation process when fudaenta faiess requied it, in

24 violation of due process. Defendants failed to provide Khl with the mium requiements of

25 due process at his parole revocation hearg. Among other thgs, Khall was denied the

26 opportty to present witnesses and documenta evidence and to confont and cross-exame

27 adverse witnesses, in violation of due process oflaw. Khil's due process rights were also

28

8
FI AMED COMPLA (Cae No. Civ. 8-94-0671 LKGGH)
214490.2196900.039

1 violated by Defendants' failure to aford hi a meangf opportty to appeal the denial of

2 counel. Khalil's appeal was improperly denied.

3

26. PLAIF RAYMOND LATIMORE. Defendants failed to eIure that

4

Plaitif

RaYmond Latiore's waivers of

his constitutional rights in connection with the parole

5 revocation process were knowig, voluntar, and intellgent, in violation of due process of law.

6 Latimore was not provided with an attorney or other assistance durg the parole revocation

7 process when fudamental faiess requied it, in violation of due process.

8

21.

PLAIIFF ANRE LYONS. Defendarts tailed to enure that

Plaitiff

9

Andre Lyons' waivers of

his constitutiona rights in connection with the parole revocation

10 process were lmowig, voluntar, ard intellgent, in violation of due process oflaw. Lyons was

, 11 not provided with an attorney or other assistace durg the parole revocation process when

12 fudamenta faiess requied it, in violation of due process. Lyons' due process rights were also

13 violated by Defendants' failure to aford hi a meangf opportty to appeal the denial of

14 counsel and his parole revocation decisions. His appeals were improperly dened. Lyons had no

15 adequate remedy at law to address these due process violations, because the appellate procedures

16 available to hi do not provide for resolution of appeals of denials of counsel prior to the fial

17 revocation determation and do not provide for prompt and adequate resolution of appeals of

18 parole revocation decisions.

19

28. PLAIIF CLAUDE MCDANL. Plaiti Claude McDanel was not

20

afforded a prompt preliar hearg at or reasonably near the place of

his alleged parole

21 violation or arest at which he could challenge the existence of probable cause for his detention,

22

. in violation of due process of

law. In addition, McDanel's fi revocation hearg was not held

23

promptly

enough afer his parole hold

was imposed to afford hi with due process. McDanel

24 was not provided with an attorney or other assistance durg the parole revocation process when

25

fudamenta faiess requied it, in

violation of due process. McDanel's due process rights were

26 also violated by Defendats' failure to aford hi a meangf opportty to appeal the denial

27 of counsel.

28

9
FI AMNDED COMPLA (Case No. Civ. 8-94-0671 LKKGGH)
214490.216900-39

1

29.

PLAIIF NATH MORR. Plaitiff

Nathan Morrs was not

2

aforded a prompt preliar hearg at or reasonably near the place of

his alleged parole

3 violation or arest at which he could challenge the existence of probable cause for his detention,

4 in violation of due process of law. In addition, Morrs' fial revocation hearg was not held

5

promptly

enough afer his parole hold was imposed to aford hi with due process. Morrs was

6 improperly denied the opportty to appeal his pre-hearg parole hold. Defendants also failed

7 to provide Morrs with the minimum requiements of due process at his parole revocation,

8

hearg. Among other thgs, Morrs was not given adequate notice of

the claied parole

9 violations, the evidence agait hi was not disclosed, and he was not given the opportty to

10 confont and cross-exame adverse witnesses, all in violation of due process oflaw. Morrs had

11 no adequate remedy at law to address these due process violations, because the appellate

12 procedures available to hi do not provide for prompt and adequate resolution of appeals of

13 parole revocation decisions.

14

30. PLAIF EDWAR NAVARO. Defendants failed to provide

15 Plaitiff Edward Navaro with the mium requiements of due process at his parole revocation

i6 hearg. Among other thigs, Navaro was denied the opportty to present witnesses at his

17 parole revocation hearg. Navaro's due process rights were also violated by Defendants'

18 failure to aford hi a'meaagf opportty to appeal the denal of counel.

19 20

31.

PLAIF STEVE O'DONOHU. Plaitif

not afforded a prompt preliar hearg at or reasonably near the place of

Steven O'Donohue was his alleged parole

21 violation or arest at whièh he could chalenge the existence of probable cause for his detention,

22 in violation of due process oflaw. In addition, O'Donohue's fma revocation hearg was not

23

held promptly enough afer

his parole hold was imposed to aford hi

with due

24 process.O'Donohue's due process rights were also violated by Defendats' failure to aford hi

25 a meangf opportty to appeal his parole revocation decision. Morrs ha no adequate

26 remedy at law to address these due process violations, because the appellate procedures available

27 to hi do not provide for prompt and adequate resolution of appeals of parole revocation

28 decisions.

10
FI AMNDED COMPLA (Cae No. Civ. 8-94-0671 LKKGGH)
21440.216900-039

1

32. PLAIIFF OGWUOBU OJOIR. Defendants failed to provide Plaitiff

2 Ogwobu Ojoir with the mimum requiements of due process at his parle revocation hearng.

3

Among other thgs, Ojoir was not given adequate wrtten notice of

the claied parole violations'

4 and was denied the right to present witness and documentar evidence. Ojoir's due process

5 rights were also violated by Defendants' failure to aford hi a meangf opportty to appeal

6 the parole revocation decision. Ojoir's appeal was improperly denied.

7

33.

PLAI WILIE PATTON. Plaitiff

Wilie Patton was not provided

8

with an attorney or other assistace durg the parole

revocation process when fudamental

9 faaess requied it, in violation of due process oflaw. Patton's due process ri~ts were also

10 violated by Defendants' failure to aford hi a meangf opportty to appeal the denial of

11 counel.
12

34.

. . PLAIF JAMS ROBINSON. Plaitiff

13

aforded a prompt preliar hearg at or reasonably near the place of

. . James Robinon was not his aleged parole

14 violation or arest at which he could chalenge the existence of probable cause for his detention,

15 in violation of due process oflaw. In addition, Robinon's fial revocation hearg was not held

16 promptly enough after ~s parole hold was imposed to aford hi with due process.

17

35. PLAIIF TROY SCURY. Defendants failed to enure that Plaitiff

18 Troy Scur's waivers of his constitutional rights in connection with the parole revocation

19

process were knowing, voluntar, and intellgent, in violation of due process of

law. Scur was

20 not provided with an attorney or other assistance durg the parole revocation process when

21 fudamenta faiess requied it, in violation of due process. Scur's due process rights were
22 also violated by Defendats' faiure to aford hi a meangf opportty to appeal his parole

23 revocation decisions. Scur had no adequàte remedy at law to address these due process

24 violations, because the appellate procedures available to hi do not provide for resolution of
25 appeals of denials of counel prior to the fial revocation detertion and do not provide for

26 prompt and adequate resolution of appeals of parole revocation decisions.

27

36.

PLAITIF MA ST. JOHN. Plaiti

Mak St. John's due process

28 rights were violated by Defendats' faiure to aford hi a meagf opportty to appeal his

11
FI AMED COMPLA (Case No. Civ. 8-94-0671 LKGGH)
214490.2196900-039

1 parole revocation decision. St. John had no adequate remedy at law to address these due process

2 violations, because the appellate procedures available to hi do not provide for resolution of

3 appeals of denials of counel prior to the fial revocation detennnation and do not provide for

4 , prompt and adequate resolution of appeals of parole revocation decisions.

5

37.

PLAIIF GREGORY STRONG. Plaitiff

Gregory Strong was not

6

aforded a prompt preliar hearg at or reasonably near the place of

his alleged parole

7 violation or arest at which he could challenge the existence of probable cause for his detention,

8 in violation of due process oflaw. In addition, Strong's fial revocation hearg was not held

9 promptly enough after his parole hold was imposed to afford hi with due process.

10.

38. PLAIIF ALFRD TAYLOR. Plaitiff Alfred Taylor was not

11

afforded a prompt preliar hearg at or reasonably near the place of

his aleged parole

12 violation or arest at which he could challenge the existence of probable cause for his detention,

13 in violation of due process oflaw. In addition, Taylor's fi revocation hearg was not held

14 promptly enough afer his parole hold was imposed to afford hi with due process.

15

39. PLAIIF CHRTOPHER THOMAS. Defendats failed to ensure

16

that Plaiti

Chrstopher Thomas' waivers of

his constitutional rights in connection with the

17 parole revocation process were knowing, volunta, and intellgent, in violation of due process of

18 law. Thomas' due process rights were violated byDefendants' failure to aford hi a

19 meangfl opportty to appeal his parole revocation decision. Thomas had no adequate

20 remedy at law to address these due process violations, because the appellate procedures available

21 to hi do not provide for resolution of appeals of denials of counel prior to the fial revocation

22 determation and do not provide for prompt and adequate re~olution of appeals of parole,

23 revocation decisions. Thomas' appeal was improperly denied.

24

40.

PLAIIF JI WATSON. Defendats failed to

ensure that Plaiti

25

Jimy Watson's waivers of

his constitutiona

,rights in connection with the parole revocation

26 process were knowig, volunta, and intellgent, in violation of due process oflaw. Watson

27 was not provided with an attorney or other assistace durg the parole revocation process when
12 . 28 fudamenta faiess requied it, in violation of due process oflaw. FIF AMNDED COMPLA (Case No. Civ. 8-94-671 LKGGH) 21440.216900-039 .

1

41. PLAIIF CURTIS WILIAS. Defendants failed to provide Plaitiff

2

Curs Willams with the mimum requiements of due process

at his parole revocation hearg.

3 Among other thgs, Willam was dened his right to present witnesses, in violation of due

4 . process oflaw.

5

42.

. . Each of the representative plaitiffs' constitutional rights to due process of

6 law and/or to counsel were violated by Defendants' pattern and practices, as alleged more fuly

7 herein.

8

43. DEFENDAN PETE WISON. Defendant Pete Wilson is Governor of

9 the State of Californa and the Chief Executive of the state governent. He is. sued herein in his

10

offcial capacity. As Governor, Mr. Wilson is responsible for the appointment of

the Defendants

11 Secreta and Deputy Secretar of fue Youth and Adult Corrections Agency, the Defendat

12

Director of Corrections, and, subject to State Senate confation, every member of

the Board of

13

Prison Terms. The GQverpr also appoints the Chaian of

the Board of

Prson Tem;. The

14 Goveror, in unon With those whom he appoints, and by and though those persons employed by

15 the other defendats, control and regulate the custody of the plaitiff class. Puuat to

16 Californa Penal Code Section 3062, Defendant Wilson has power to revoke the parole of any

17 prisoner, just as the parole authority ha such power, and the Governor's wrtten authority is

18 sufcient to authorie any peace officer to arest any prisoner. Upon inormation and belief,

19 Defendat Wilson is responsible for the creation and enorcement of policies, and practices

20 whereby the rights, privileges and imunties of the plaitiff class are adversely afected, in

21 violation of the United States Constitution and of other laws.

22

44. DEFENDAN QUIIN L. VILANVA, JR. Defendant Quiti L.

23 Vilanueva, Jr. is the Secreta to Defendat Wilson, in charge of the Californa Youth and Adult

24 Correctiona Agency, which fuds all costs and employs and diects all staf for executig all

25

actions complaied of

herein. Except as otherse alleged herein Mr. Vilanueva is responsible

26

for the appointment and

employment of necessar offcers and employees of the Agency, with

27 the express or implied approval of the Defendat Goveror Wilson. Defendat Vilanueva is

28

13' . appointed by Defendat Wilson, subject to Sente confation, and is entitled to exercise the

FI AMED COMPLA (Cae No. Civ. 8-94-0671 LKGGH)
214490.21900039

1 authority vested in the Goveror in respect to the Youth and Adult Correctional Agency.

2 Defendant Vilanueva is advisor to the governor and assists in establishig major policy and

3 program matters effectig the Youth and Adult Correctional Agency. Mr. Vilanueva has

4 imediate supervsory authority over the Deparent of CorrectionS. Mr. Vilanueva also has

5

imediate supersory authority over the Board of

Prison Terms, whicJJ is an executive agency

6 with the Youth and Adult Correctional Agency.

7

45. DEFENDAN CAL TERH. Defendant Cal Terhune is Director of

8 the Calforna Deparent of Corrections. Mr. Terhune is appointed by the Governor, with the

9

advice and consent of

the Senate. Mr. Terhune is the chief adstrative offcer of

the

10

Deparent

of Corrections. 'm that capacity

Mr. Terhune acts under

the diection and control of

11 Defendats Wilson, Maddock, and other, and implements Agency policy by and though his

12 employees, and in unon and in collaboration with other offcers of the Agency, includig the

13

Deputy Director of

the Deparent of Corrections for the Parole and Communty Servces

14 Division. Defendant Terhune is also the custodian of all Calforna. state priso~ers. Upon

15 inorma.tion and belief, defendant Terhune bears ultiate supervsorial responsibilty over the

16

formulation and implementation of

the Calorna Deparent of

Correction's rues, practices,

17 regulations and procedures concerg parole and parole revocation. Upon inormation and

18 belief, defendant Terh:ue ~lso bears ultiate supersorial responsibilty over the formulation,

19 iiplementation, and admstration of deparenta policy regardig the control, care and

20 treatment of parolees.

21

46. DEFENDAN MAELA MONTES. Defendant Marsela Montes is

22

Deputy Director of

the 'Calforna Deparent of Corrections, Parole and Communty Servces

23 Division. Among other thgs, Ms. Montes is responsible for the statewide parole programg

24 of adult felons. Ms. Montes serves as liaison between the parole and communty servces

25

division of

the Deparent of

26 Corrections.

Corrections and the intutions division of

the Deparent of

27

47. DEFENDAN JAMS W. NILSEN. Defendant Neilsen is

28

Commssioner and Chaan of

the Board of

Prson Ter of

the State of Calforna. Upon

14
FI AMED COMPLA (Cae No. Civ. 8-94-0671 LKKGGH)
214490.216900-0039

1 inormation and belief, Mr. Nielsen was nomiated as Commssioner by Defendant Wilson, and 2 his nomiation was confed by the Senate of the State of Calforna. Upon inormation and

3

belief, Mr. Nielsen was appointed to his chaianhip of

the Board of

Prison Ters by

4 . Defendant Wilson. Comms~ioner Nielsen has overall executive authority over the operation of

5

the Board of

Prison Terms, which is curently the pricipal parole revocation authority of

the

6 State of Calorna. Tbe Chaian is the admstrative head of the Board and has the

7 responsibilty to exercise all duties and fuctions necessar to insure that the responsibilties of

8 the Board are successfuy discharged.

9

48. DEFENDAN JOHN W. GILLIS. Defendant John W. Gills is a

10

Commssioner of

the Board of

Prson Terms. Mr. Gills was 'nomiated by Defendant Governor

11

Wilson, and was confed by the Californa Senate. Defendant Gills is former Chaian of

the

12

Board

of Prison Terms, havig been appointed to that offce by Defendant Governor Wilson in

13 or about May 1991. On or about December 1, 1993, Commssioner Gilis was removed by

14 Governor Wilson from his chaianhip, and Commssioner Nielsen was appointed to the

15 Chaianship in his place.

16

49. DEFENDANS CAROL J. BENTEY, THOMA J. GIAQUIO,

17 MAL C. GUADERR, RON E. KOENIG, and ARTH F. VAN COURT.

18 Defendants Carol J. Bentley, Thomas J. Giaquito, Manuel C. Guaderama, Ron E. Koenig, And

19 20

Arur F. VanCour are Commssioners of

the Board of

As Commssioners, these Defendats are responsible for the operation and

Prson Ters of

21

Board of

Prison Terms, includig the parole revocation fuction. .

the State of Calforna..

policy

makg of

the

22

50. DEFENDANS MICHAL CONNOLLY and EDWAR MCNAI.

23 24 25

Defendants

Michael Connolly

of the Board of

Prison Ter of

Commssioner of

the Board of

and Edward McNai, as Associate Chief

Deputy Commssioners

the State ofCalomia, are acting in tu as Actig Chief

Deputy

Prison Ter ofCalifomia. Upon inormation and belief,

26

Mr. Connolly and Mr.

McNai have oversight responsibilty concerng the revocation of

parole,

27 includig responsibilty for oversight of deputy commssioners in the Board of Prison Terms.

28

15
FI AMNDED COMPLA (Case No. Civ. 8-94-0671 LKGGH)
214490.2196900-39

1

Upon inonnation and belief, Mr. Connolly and Mr. McNai report diectly

or indiectly to the

2

Chaian of

the Board of

Prison Terms.

3 4

'.51.

. . E. CLASS ACTION ALLEGATIONS

Puruat to Rule 23 of

the Federal Rules of

Civil Procedure, ths suit is

5 brought on behalf of the named plaitiffs on their own behalf and on behalf of all other persons

6 simlarly situated. On or about December 1, 1994, ths cour certfied that the sui! may proceed

7 as a class action.

8

. . . 52. Ths is a civil rights proceedig. The relief requested is declaratory and

9 injunctive; damages for individual plaitiffs are not sought in these proceedigs.

10

53.

The class is composed of

the followig persons, subject to Defendants'

11 domion and control: (1) Calforna parolees who are at large; (2) Calforna parolees in

12

custody

as aleged par~le violators, and who are awaitig revocation of

13

(3) Californa parolees who are in custody, having been found in violation of

14 sentenced to prison custody.

their state parole; and parole and

15

54.

The members of

the class are so numerous that

joinder of

all member is

16

impracticable. The size of

the class is conservatively estimated to be at least 90,000 persons on

17 parole and not in custody; and at least 40,000 persons servg tie as parole violators in custody.

18 19

. . 55.

The intat suit involves questions oflaw or fact common to all the

members of the class, and the relief sought will apply to all of them. The allegations made

20 herein are that the defendats, among other thgs, are engaged in a pattern and practice of

21 remandig parolees to prison without due consideration of the right to counel, without afordig

22 parolees a fai opportty to present their position, and without due 'process of law, in violation

23 of the Sixth and Foureenth Amendments to the United States Constitution. The Defendats'

24

alleged ilegal pattern and practice of

25 the plaitiffs class.

.violation of

.law is generally applicable to al members of

26

56. The clai of the representative plaintis are tyical of the clai of the

27 . class.

28

16
. FIF AMED COMPLA (Case No. Civ. 8-94-0671 LKKGGH)
21440.2196900-0039

1

57. The representative plaitiffs are 'capable, though counel, of faily and

2 adequately protectig and representig the interests of the class.

3

58.'

.The common questions of

law and fact generally described herein

4 predomiate over questions afectig only individual members, and a class action is superor to

5 other methods for adjudicatig the controversy. Upon inormation and belief, there are few or no

6 class members who have the fiancial mean to fud litigation such as ths. Moreover, there is a

7 risk of inconsistent or varg adjudications which might be obtaied by individua members of

8 the class which would establish incompatible standards of conduct for the Defendants. , Furer,

9

the success of any individual

litigant would not necessarly provide any relief to the thousands of

10 otter members of the class who were simlarly entitled to relief, but who are unable to seek such

11 redress. Finally, the equitable remedy available to any individual parolee presents the prospect

12 of mootness, because such a remedy (if aforded) would be granted, if at all, only afer an

13

individual parolee had served most, ifnot all, of

his ilegal custody.

14

59.

pefeedats have

acted or refued to act on grounds generally applicable to

15 the class, makg appropriate injunctive and declaratory relief with respect to the class as a

16 whole. A declaration and a generl, fial injunction will serve to redress the clais of the

17 members of the class against the ilegal actions of the Defendants.

18

60.

The attorneys for plaitiffs in ths proceedig are able to faily and

19 adquately represent the plaitiff class, because they are experienced and knowledgeable

20

regardig crial

law and prisoners' rights and remedies.

21

F. STATEMENT OF CLASS CLAIS

22

61. The named defendants, individuay and/or in unon, have control of

23 parolees while they are servg their intial term, while they are on parole afer release from their

24 intial ter, while charged with a violation of parole, durg parole revocation proceedigs, and

25 'afer any disposition is made retug the parolee to prison custody.

26

62. Pursuant to Calforna Penal Code sec. 3000(g), the Californa Deparent

27 of Corrections is the goverental agency which has the imediate, day to day charge of

28

17
FITH AMNDED COMPLA (Cae No. Civ. 8-94-671 LKGGH)
214490.2196900.039

1 management and custody of adult parolees. The Calforna Deparent of Corrections sets the

2 conditions of parole and, with limts, the lengt of parole.

3

63.

Collectively, the Board of

4

establish and enforce rules and regulations on the subject of

Prson Terms has the statutory

power to

parole (Cal. Pen. Code sec. 3052).

5

64. Since about November of 1994 (and for about 15 year prior to about

6

Janua 1, 1993), the Board of

Prison Term has had the exclusive

power to conduct heargs on

7 revocation of parole and to order parolees retued to prison. Between Januar 1, 1993 and

8 November of 1994, that power was briefly vested ii the Deparent of Corrections. At least
9 since 1984, the pattern and .practice of the revocation fuction, whether in the Deparent of

10

Corrections or in the Board of

Prison Term, has been and is violative of conStitutional due

11 process and the constitutional right to counel, as arculated in ths complait.

12

65.

The Board of

Prson Ter employs deputy commssioners to whom the

13

Board may assign appropriate duties, includig that of

hearg cases and makg decisions.

14

Deputy commssioners are appointed by Chaan of

the Board of

Prison Term and anwer to

15 the Chaian. Upon inormation and belief, most parole revocation proceedigs are conducted

16 by deputy commssioners.

17

66. The members of the plaitiff class have been and are contiualy being

18 denied constitutional due process and the constitutional right to counel. Examples of such

19 unconstitutional conduct include the followig:

20

(a)

prompt preliar parole revocation heargs are not being conducted,

21

thereby denyig parolees, among other thgs, a meangf opportty to

22

chalenge the absence of constitutional stadards leadg to their arest or

23

the right to appeal their detention;

24

(b)

Notice of charges and the reasons for

detention are not promptly given;

25

(c) reasonable opporttY for investigåtion is not afforded, a problem

26

exacerbated by the routie removal of parolees ftom their communty of

27

residence;

28

18
214490.2196900.039 ' FIFm AMNDED COMPLA (Cae No. Civ. 8-94-0671 LKGGH)

1

(d) "screenig" of parolees is fudaentaly unai, because, among other

2

thgs, parolees are unawfuly inuenced to give up their constitutional

3

right to due process and other rights in the adjudication and disposition of '

4

,alleg,ationsof parole violation without full advance advisal of ~ose rights;

5

(e) defendats are followig a pattern and practice of denyig counel to

6

parolees in violation of existig constitutional standards in almost all cases

7

of parole revocation;

8

(f)

purortd "waivers" of counel, of

heargs, and other rights are not

9

knowig, volunta and intellgent;

10

(g) where co~el is permtted, the right to meangful representation is

11

denied by, among other thgs, the imposition of

unai and uneasonable

12

limts on counel's tie and fees;

13

(h)

parole revocation heargs do not aford due process because, among other

14

thgs, they are held from 45 days to month afer a parolee is arested;

15

and parolees are denied a meangf opportty to appeal a denial of

16

counsel, to subpoena and present witnesses and evidence, or to confont

17

and cross-exame adverse witnesses.

"18

67. Under Calforna law, the constitutional questions raised by ths suit

19 canot be raised in Calj.orna adstrative proceedigs. Whe there is a process of

20 adstrative review from disposition of gult and reincarceration afer hearg, the

21 admstrative review is neither prompt nor effectual. Defendats routiely fail to promptly

22 alow, consider and dispose of adstrative appeals. Appointed counel are not available to

23 assist parolees in the admstrtive process.

24

68. In those rare judicial chalenges made to the parole revocation process, the

25

state attorney routiely clais that admstrative appeal is an avenue of

26 exhausted before a parolee is entitled to request judicial process.

relief that must be

27

69. 'The ters of incarceration imposed upon parolees, usually 6 month to i

28

year, make it essentially

impossible to fie a state petition for habeas corpus to relieve the

19
, FIm AMNDED COMPLA (Cae No. Civ. 8-94-0671 LKGGH)
21448490.2196900-039

1 unawfu confements in individua cases, with or without fist exhaustig state remedies.

2

Moreover, Calforna state habeas corpus is an extraordiar remedy, only

available, in the

3 discretion of the superior cour, to review an utterly baseless decision, and is not a process of

4 achstrative review.

5

70. Californa state habeas corpus afords a hearg and counsel to a petitioner

6 if, but only if, he or she can adequately plead a pria facie case of jursdictional magntude. A

7

parolee who challenges Defendats' denial of

his or her constitutional rights to counel and/or

8 due process in the state cours th~refore canot secure any remedy, or any realstic remedy, as

9 non-compliance with these federal mandates are not deemed jursdictionaL.

10

71. Puruat to Californa Rules of Cour, a petition for habeas corpus relief

11

will usualy be pendig at least 60 to 90 days before any relief

will be granted. The telief

12 provided in state habeas corpus, if the petition does not fist become moot while the case is

13 pendig, is likely to be lited to a rehearg. Thus, any prior deprivation of a parolee's
14 constitutional rights may be "cured," even if egregious, without consequence to the parolee's

15 custody status.

16

17

18

19

20

21

22

23

24

25

26

27

28

20 FI AMNDED COMPLA (Case No. Civ. 8-94-0671 LKKGGH)
21448490.216900-0039

1

G. PRAYER

FORRELffF

2

WHREFORE, PLAIFS RESPECTFULY PRAY THT TiS COURT:

3

1. Contiue to authorize that ths matter may proceed as a class action.

4

2. Adjudge and declare that the policies, patter, conduct and practices,

5 described above are in violation of the rights of the plaitiffs and the class ,they represent under

6 the Sixth and/or Foureenth Amendments to the United States Constitution;

7

3.

Preliarly and permanently enjoin defendats,their agents, employees

8 and all persons actig in concert with them, from subjectig plaitiffs and the class they

9 represent to the unconstitutional and ilegal policies, patter, conduct and practices described

10 above;

11

4.

Order defendants to end their practices of denyig plaitiffs and the class

12 they represent their constitutional right to due process of law;

13

5.

Aw~d plaitiffs the costs of

14 litigation expenses;'

ths suit and reasonable attorneys' fees and

15

16

all orders of

6.

Retaijursdiction of

ths case until defendants have fuly complied with

ths Cour, and there is a reasonable assurance that defendats will contiue to

17

comply in the futue alJsent, continuig

jursdiction; and

18

7 . Award such other and fuer relief as the Cour deems just and proper.

19 DATED: September l3, 2002. 20

BINGHA McCUTCHEN, LLP

21 By:
22

23

24

25

26

27

28
, 21
, FIFTH AMED COMPLA (Cae No. Civ. 8-94-0671 LKGGH)
214490.2/690039

,

1

PROOF OF SERVICE

2

I am over 18 years of age, not a par to ths action and employed in the County

3 of San Francisco, Californa at Thee Embarcadero Center, San Francisco, Calforna 94111-

4 4067. 5

On~ 1.3

. at

~: 3V --m., by use

TIME
6 of facsimle machie telephone number (415) 393-2286 and by next business day delivery by

7 Federal Express, and correspondence is deposited with Federal Express that same day in the

8
ordiar course of

business. Today,' I sered a copy of:

9

FIFTH,AMNDED CIV CLASS ACTION COMPLA FOR

10

DECLARTORY AN INJUCTIV RELIEF

42 U.S.C. sec. 1983 AN 28 U.S.C. sec. 1343(a)

11
On the followig pares by facsimle tranmission and by causing a tre and correct copy of the

12
above to be delivered by Federal Express from San Fracisco, Calforna in a sealed envelope

13
with al fees prepaid, addressed as follows:

14

Willam V. Casdollar, Esq.

15

Office of the Attorney Gener

Deparent of Justice

16

1300 I Street

Sacramento, CA 95814

, 17

Phone: (916) 323~1942

Fax: (916) 324-5205
18 I declare that I am employed in the offce of a member of the bar of ths cour at

19
whose diection the servce was made andthat ths declaration was executed on September 13,

20 2002.
21
22

¿,,~~ar0ge

23

24

25

26

27

28

22 FIF AMNDED COMPLA (Cae No. Civ. 8-94-0671 LKGGH)
21448490.2196900-0039

 
 1

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

8

EASTERN DISTRICT OF CALIFORNIA

9

10 JERRY VALDIVIA, ALFRED YANCY, and HOSSIE WELCH, on their own
11 behalf and on behalf of the class of all persons similarly situated,
12 Plaintiffs,
13 v.
14 ARNOLD SCHWARZENEGGER, Governor of
15 the State of California, et al.,

NO. CIV. S-94-671 LKK/GGH O R D E R

16

Defendants.

/

17

18

Plaintiffs bring a motion for an order finding defendants in

19 violation of the Stipulated Order of Permanent Injunction entered

20 in 2003. Specifically, plaintiff argues that the defendants have

21 violated the terms of the injunction by failing to adhere to it 22 when revoking the parole of “Cooperative Parolees.”1

23

24

1 The plaintiffs also assert that the defendants have violated

the terms of the permanent injunction by failing to apply it to 25 “Civil Addict Parolees.” The court will resolve that portion of the

motion after receiving the supplemental briefing requested of the 26 parties.

1

1

I. BACKGROUND AND FACTS

2

In 1994, this Court certified a class of California parolees

3 who brought suit against the Governor and various corrections

4 officials, alleging violations of the plaintiffs’ rights under the

5 Due Process Clause of the Fourteenth Amendment. The certified class

6 encompassed “(1) California parolees at large; (2) California

7 parolees in custody, as alleged parole violators, and who are

8 awaiting revocation of their state parole; and (3) California

9 parolees who are in custody, having been found in violation of

10 parole and who have been thereupon sentenced to prison custody.”

11 Order entered Dec. 1, 1994.

12

In 2002, this Court held that California’s parole revocation

13 procedures then in place violated the due process rights of the

14 members of the plaintiff class. Valdivia v. Davis, 206 F. Supp. 2d

15 1968 (E.D. Cal. 2002). Specifically, it was unlawful for the

16 defendants to delay forty-five days or longer in making a probable

17 cause determination, after having taken a parolee into custody for

18 an alleged parole violation. Id. at 1078.

19

As a remedy, the parties stipulated to a permanent injunction

20 against the defendants in 2003, which imposed several obligations

21 on the defendants. First, defendants must appoint counsel to all

22 parolees at the onset of the Return to Custody Assessment stage of

23 the revocation proceedings. Second, no later than two days after

24 the parolee being taken into custody, the parole agent and unit

25 supervisor must confer to determine whether they believe probable

26 cause exists that the parolee committed a parole violation. Third,

2

1 within three business days after being taken into custody, the

2 parolee must be served with notice of the alleged parole violation.

3 Fourth, the parole revocation hearing must be held within thirty-

4 five days of the parolee being taken into custody, unless the

5 parolee waives a revocation hearing. Stipulated Order for Permanent

6 Injunctive Relief, Mar. 9, 2004, ¶ 11. The injunction supplemented

7 these requirements with additional protections of the plaintiffs’

8 due process rights during the revocation process. Id. at ¶¶ 13-24.

9

In the instant motion, plaintiffs argue that the defendants

10 have violated the permanent injunction by failing to abide by its

11 terms in the revocation of the parole of those parolees who were

12 placed on parole in other states but whose parole is being

13 supervised in California (“Cooperative Parolees”).

14

II.

15 STANDARD FOR MOTION FOR ORDER FINDING DEFENDANTS’ IN VIOLATION

16

OF A PERMANENT INJUNCTION

17

When interpreting the parameters of a class, a district court

18 should be guided by the plain language of the class definition. In

19 re. Cement and Concrete Antitrust Litigation, 817 F.2d 1435, 1442-

20 43 (9th Cir. 1987). In other words, the court’s approach is the

21 same that it would use when construing the language of a statute

22 or contract. Id. at 1443. The court’s interpretation also should

23 be informed by apparent purpose of class certification and the

24 common questions among the class members’ claims. Id.

25

III. ANALYSIS

26

Plaintiffs argue that Cooperative Parolees are included in

3

1 the certified plaintiff class and therefore that the terms of

2 this court’s order in 2002 and the terms of the 2003 permanent

3 injunction apply to this group. Because defendants have not

4 abided by the terms of the permanent injunction with respect to

5 these parolees, plaintiffs argue that defendants are in

6 violation of it.

7

Below, the court concludes that parolees sentenced in other

8 states but supervised in California per the Interstate Compact

9 for Adult Offender Supervision are not members of the plaintiff

10 class.

11 A. Structure and Rules of Cooperative Parolee System

12

California permits parolees who were convicted and

13 sentenced in other states to serve their parole in California.

14 This arrangement is governed by the Interstate Compact for Adult

15 Offender Supervision. Cal. Penal Code § 11180. The compact is

16 managed by the Interstate Commission for Adult Offender

17 Supervision, which promulgates the rules of the compact. Id. The

18 compact and its rules have the force of law in California. Id.

19

Under the compact, one state may send a parolee to be

20 supervised in another state. Interstate Comm’n for Adult

21 Offender Supervision (“Comm’n”) Rule 3.101, 3.101-2. The state

22 where the parolee was convicted and sentenced is referred to as

23 the “sending state;” the state where the parolee resides is

24 referred to as the “receiving state.” Comm’n Rule 1.101. While

25 in the receiving state, the parolee is supervised “in a manner

26 determined by the receiving state” and the supervision should be

4

1 consistent with that of similar offenders sentenced in the

2 receiving state. Comm’n Rule 4.101. Courts have held that this

3 rule requires that the receiving state apply its laws, rules,

4 and regulations concerning the supervision of parolees equally

5 among parolees, regardless of whether the parolee was sentenced

6 in California or in another state. See People v. Reed, 23 Cal.

7 App. 4th 135, 143 (1994).

8

While supervising the out-of-state parolee, the receiving

9 state must send progress reports to the sending state. Comm’n

10 Rule 4.106. If the receiving state believes the parolees has

11 violated the conditions of his parole, the receiving state must

12 notify the sending state, however the receiving state does have

13 the authority to arrest and detain the parolee by virtue of

14 these violations. Comm’n Rule 4.109, 4.109-1. The receiving

15 state may only terminate its supervision of the parolee on the

16 date dictated to it by the sending state. Comm’n Rule

17 4.112(a)(1).

18

The sending state has sole discretion to retake the

19 parolee, unless the parolee has been charged with a subsequent

20 criminal offense in the receiving state. Comm’n Rule 5.101(a).

21 If the receiving state reports that the parolee repeatedly has

22 violated the terms of his supervision, the sending state can

23 retake the parolee. Comm’n Rule 5.103. Once the sending state

24 decides to retake the parolee, it has thirty days to do so.

25 Comm’n Rule 5.105.

26

A parolee is entitled to a probable cause hearing before

5

1 being retaken by the sending state for violation of the terms of

2 his supervision. Comm’n Rule 5.108(a). This hearing is to be

3 held in the receiving state and must comply with due process

4 requirements. Id. The parolee must receive written notice of the

5 alleged violation, disclosure of non-privileged and non-

6 confidential evidence regarding his alleged violation, the

7 opportunity to be heard and present witnesses and documentary

8 evidence on his behalf, and the opportunity to confront and

9 cross-examine adverse witnesses. Comm’n Rule 5.108(d). These due

10 process requirements are informed by Gagnon v. Scarpelli, 411

11 U.S. 778 (1973), and Morrissey v. Brewer, 408 U.S. 471 (1971).

12 Comm’n Rule 5.108.

13

Within thirty calendar days of the probable cause hearing,

14 the receiving state must submit a report to the sending state

15 describing the hearing. Comm’n Rule 5.108(e). If the hearing

16 officer at the probable cause hearing determines that there is

17 sufficient cause to believe the parolee has violated the

18 conditions of his parole, the receiving state should hold the

19 parolee in custody. Comm’n Rule 5.108(f). Within thirty days of

20 receiving the hearing officer’s report, the sending state must

21 notify the receiving state of what action it will take, which

22 may include retaking the parolee. Comm’n Rule 5.108(f). If the

23 hearing officer decides there is no probable cause to believe

24 the parolee has committed a violation, then the receiving state

25 must release the parolee from custody and continue its

26 supervision of him. Comm’n Rule 5.108(g).

6

1 B. Cooperative Parolees’ Exclusion from the Plaintiff Class

2

The relationship between the sending and receiving states

3 makes clear that the sending state retains jurisdiction to

4 revoke parole. See Comm’n Rule 5.101(a), 5.103, 5,108(f). In its

5 advisory opinion number 2-2005, the Interstate Commission for

6 Adult Offender Supervision described the receiving state as the

7 agent of the sending state, and that characterization seems apt.

8 See Comm’n Rule 4.106; see also State v. Hill, 334 N.W.2d 746

9 (Iowa 1983). The receiving state reports the parolee’s progress

10 to the sending state, can only terminate supervision on the date

11 authorized by the sending state, and has no authority to

12 determine what recourse to take if the parolee is believed to

13 have committed a parole violation. See Comm’n Rules 4.106,

14 4.109(a), 4.112, 5.101(a), 5.103(a). Therefore, although the

15 receiving state has authority to supervise the out-of-state

16 parolee and must do so in a manner consistent with the

17 supervision of those sentenced in state, this supervision

18 responsibility does not mean the receiving state has been

19 granted the authority to terminate or revoke the out-of-state

20 parolee’s parole. Cf. Comm’n Rule 1.101 (defining

21 “supervision”).

22

Given this, out-of-state parolees supervised in California

23 cannot be included in the plaintiff class. The 2003 Permanent

24 Injunction imposes requirements on the defendants for the parole

25 revocation hearing. See Stipulated Order for Permanent

26 Injunctive Relief, Mar. 9, 2004, ¶¶ 11(b)(iv), 20, 23; see also

7

1 ¶¶ 13, 17, 18 (requirements that apply to all stages of the

2 revocation process, including the revocation hearing). Under the

3 Interstate Compact, California does not have the jurisdiction to

4 revoke the parole of out-of-state parolees. Therefore, although

5 these parolees’ liberty interest may be the same as that of the

6 plaintiff class, the due process violations -- if any --

7 committed by the defendants and subsequent remedy will

8 necessarily be different. See In re. Cement, 817 F.2d at 1442-

9 43.

10

Consequently, out-of-state parolees supervised in

11 California per the Interstate Compact are not members of the

12 plaintiff class.

13

IV. CONCLUSION

14

The plaintiffs’ motion for finding the defendants in

15 violation of the permanent injunction is DENIED in part.

16

IT IS SO ORDERED.

17

DATED: September 27, 2007.

18

19

20

21

22

23

24

25

26

8

 
 1

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

8

EASTERN DISTRICT OF CALIFORNIA

9

10 JERRY VALDIVIA, ALFRED YANCY, and HOSSIE WELCH, on their own
11 behalf and on behalf of the class of all persons similarly situated,
12 Plaintiffs,
13 v.
14 ARNOLD SCHWARZENEGGER, Governor of
15 the State of California, et al.,

NO. CIV. S-94-671 LKK/GGH O R D E R

16

Defendants.

/

17

18

This matter is before the court on a joint stipulation

19 submitting a disputed issue concerning the scope of the

20 stipulated judgment in the above-captioned matter. On April 14,

21 2005, the parties appeared before Magistrate Judge Moulds for a

22 settlement conference. The parties resolved all but one

23 disputed issue at that conference. The parties agreed to submit

24 the remaining disputed issue for decision by this court without

25 oral argument.

26 ////

1

1

The remaining disputed issue concerns whether parolees’

2 counsels’ access to certain mental health records should be

3 subject to conditions of non-disclosure to the parolee under the

4 California Patient Access to Health Records Act (“PAHRA”), Cal.

5 Health & Safety Code §§ 123100-123149.1

6

Upon consideration of the parties’ papers, the court

7 concludes that the parolees’ due process rights override any

8 condition of non-disclosure called for under the PAHRA. For

9 that reason, I conclude that parolees’ counsel should receive

10 access to information in their client’s field file without any

11 limitation on whether they can discuss the information with

12 their clients.

13

The defendants’ position is that PAHRA controls.2 Under

14 the approach suggested by the defendants, parolees’ counsel

15 could view the mental health records, but would be bound by a

16 protective order to not discuss the records with the parolee if

17 a mental health clinician had determined that under that section

18

19

1 Section 123115 (b) provides that “when a health care

provider determines there is a substantial risk of significant 20 adverse or detrimental consequences to a patient in seeing or

receiving a copy of mental health records requested by the patient, 21 the provider may decline to permit inspection or provide copies of

the records to the patient.” Cal. Health & Safety Code § 123115(b). 22

2 Given that this case arose under 42 U.S.C. § 1983, it is 23 clear that the applicable privilege law is federal rather than

state. See Fed. R. Evid. 501. Under California law, the privilege 24 established in Cal. Health & Safety Code § 123115(b) is recognized

to be subject to due process considerations arising under the 25 federal Constitution, however, there is no need for this court to

make an independent judgment, and instead I will adopt the 26 California court’s analysis of the issue tendered by the parties.

2

1 “there is a substantial risk of significant adverse or

2 detrimental consequences,” to the parolee. Cal. Health & Safety

3 Code § 123115(b). As plaintiffs argue, however, it is

4 established under California law that any privilege

5 circumscribing information conveyed to parolees in connection

6 with a revocation hearing may only be exercised within the

7 parameters of due process. In re Olsen, 37 Cal.App.3d 783, 790

8 (1974). Defendants argue that Olsen is distinguishable because

9 it did not involve psychiatric information that could be

10 detrimental to a parolee. The argument is unavailing.

11

Due process mandates full disclosure except in the narrow

12 set of circumstances delineated in Olsen. Specifically, records

13 may be withheld only if “the security of the institution will be

14 jeopardized or an informant will be exposed to an undue risk of

15 harm by the disclosure of a particular document.” Olsen, 37

16 Cal.App.3d at 790. Section 123115(b) of PAHRA does not fall

17 within the narrow exception to disclosure recognized by the

18 California Court of Appeal. Releasing mental health records

19 does not pose a direct security threat to an institution or to

20 an informant. Thus, defendants may not rely on Section

21 123115(b) as grounds to restrict counsels’ ability to discuss

22 sensitive mental health records with their clients.3

23
3 Moreover, the revised memo, which outlines the defendants’ 24 proposed policy on reviewing and releasing confidential
information, see Exhibit 2, as well as the defendants’ amended 25 protective order on this issue, see Exhibit 4, do not comport with
the defendants’ policies and procedures submitted by defendant 26 pursuant to the permanent injunction.

3

1

The court recognizes defendants’ concerns about the

2 potential harm associated with sharing sensitive material with

3 parolees. The court, however, assumes that the parolees’

4 lawyers will use discretion in discussing such sensitive

5 material with their clients.4

6

Based on the court’s review of the joint stipulation and

7 the attached papers and exhibits, the court orders that

8 parolees’ counsel shall receive access to information in their

9 client’s parole field files without any limitations or

10 restrictions on disclosing the information to the parolee based

11 on perceived risk of harm to the parolee’s mental health under

12 Cal. Health & Safety Code § 123115(b). Defendants, in

13 delivering such material, may note its sensitive character and

14 urge counsel to use discretion in determining whether to discuss

15 its contents with a client.

16

IT IS SO ORDERED.

17

DATED: August 31, 2005.

/s/Lawrence K. Karlton

18

LAWRENCE K. KARLTON

SENIOR JUDGE

19

UNITED STATES DISTRICT COURT

20

21

4 The court suggests that defendants review plaintiffs’

exhibit K, a copy of the United States Social Security

22 Administration Program Operations Manual System. The SSA policy

is helpful in situations posed by defendants’ concern. Under the

23 SSA policy, if the agency is concerned about releasing sensitive

medical records, the records are released to a representative of

24 the patient’s choosing. The representative is then given the

records and is directed to keep in mind the sensitive nature of the

25 records when discussing them with the patient. Similarly, the

parolees’ lawyers may be instructed to use their discretion in

26 discussing sensitive material with their clients.

4

 
 Case 2:94-cv-00671-LKK-GGH Document 1234 Filed 08/19/2005 Page 1 of 10

1 BILL LOCKYER Attorney General of the State of California
2 JAMES M. HUMES Chief Assistant Attorney General
3 FRANCES T. GRUNDER Senior Assistant Attorney General
4 STEPHEN P. ACQUISTO Supervising Deputy Attorney General
5 BENJAMIN T. RICE, State Bar No. 199754 Deputy Attorney General
6 1300 I Street, Suite 125 P.O. Box 944255
7 Sacramento, CA 94244-2550 Telephone: (916) 324-2445
8 Fax: (916) 324-5205

9 Attorneys for Defendants Schwarzenegger, et al. CA1997CS0005
10

11 IN THE UNITED STATES DISTRICT COURT
12 FOR THE EASTERN DISTRICT OF CALIFORNIA
13

14

15 JERRY VALDIVIA, et al.,

NO. CIV-S-94-0671 LKK GGH P

16

Plaintiffs,

17

v.

18 ARNOLD SCHWARZENEGGER, et al.,

STIPULATION AND AMENDED ORDER RE SPECIAL MASTER ORDER OF REFERENCE

19

Defendants.

20

21

On May 23, 2005, upon Defendants’ motion, this Court ordered that a Special Master

22 be appointed in this case. The Court’s order was memorialized in the Minutes as follows:

23

The Court instructs the parties to meet and confer and to file within 30 days a

proposed reference. And to the extent that they cannot agree, to provide the

24

Court with those portions of the reference which they disagree with. The

parties are also directed to suggest to the Court the means by which a special

25

master shall be selected. The Court wishes to emphasize that the master is

supplemental to the methods set forth in the decree and is not intended to

26

displace those procedures.

27 (Docket No. 1213.) Pursuant to the Court’s order, the parties have met and conferred regarding

28 the proposed terms of reference, and the court now ORDER as follows:

1 Stipulation Re Special Master Order of Reference

Case 2:94-cv-00671-LKK-GGH Document 1234 Filed 08/19/2005 Page 2 of 10

1 I. Selection of the Special Master

2

A. The parties shall promptly meet and confer and seek to agree on a qualified candidate

3 to submit for the Court’s approval as Special Master. If within thirty (30) days after this

4 stipulation is filed by the parties, the parties have not agreed on one qualified candidate, each side

5 shall file and serve a list of no more than three candidates for appointment. Within ten days of

6 submission, each side may veto one candidate on the other side’s list. The candidates shall be

7 submitted to the Court with their resumes and brief descriptions of their qualifications. The

8 Court will select and appoint a Special Master from one of the candidates submitted by the

9 parties, or such other person as the Court shall find has sufficient experience and expertise. If the

10 Court selects as Special Master a person who is not proposed by a party, the Court will allow the

11 parties twenty (20) days in which to make written objections to the Court’s selection. Thereafter,

12 the Court will appoint its selection or submit to the parties a new candidate for their comment.

13

i. The candidates’ experience in due process, mediation, alternative dispute resolution,

14 corrections, re-entry and parole supervision shall be considered in the selection. If a Special

15 Master is chosen who does not have experience in corrections, re-entry or parole supervision, the

16 Special Master is encouraged, but not required, on an as-needed basis to retain and consult

17 persons with expertise in such fields by the procedures provided for in Section III.G, below.

18

B. In the event the Special Master becomes unable to fulfill his or her duties and is

19 relieved by the Court, or becomes permanently unavailable due to death or other unforeseen

20 circumstances, a new Special Master shall be selected in the same manner provided in

21 Paragraph 1.

22 II. Duties of the Special Master

23

The Special Master shall have the following duties:

24

A. To receive periodic compliance reports from Defendants that set forth progress

25 towards implementation of the Permanent Injunction, and compliance with its requirements. The

26 format and content of these compliance reports is within the discretion of Defendants, except that

27 the Special Master may require Defendants to include additional information or change the

28 format at his or her discretion. A designated representative of Plaintiffs’ counsel shall receive a

2 Stipulation Re Special Master Order of Reference

Case 2:94-cv-00671-LKK-GGH Document 1234 Filed 08/19/2005 Page 3 of 10

1 copy of all such compliance reports at the same time as the Special Master. The Special Master

2 shall give the Defendants 60 days notice to complete a compliance report.

3

B. To prepare and file with the Court reports on the status of the Defendants’

4 compliance with the Permanent Injunction. These reports shall be issued by the special master

5 every three to six months. These reports shall contain the Special Master’s assessment of

6 Defendants’ progress towards implementation and compliance with the Permanent Injunction.

7 The Special Master shall attach a copy of any report or document used as evidence, referenced, or

8 relied upon by the Special Master in issuing the compliance report, except for material already

9 available or accessible to the parties, provided the report includes sufficient citation for the

10 parties to access the report or document referred to. Such status reports are separate and distinct

11 from any findings of fact, conclusions of law, orders, or recommendations resulting from the

12 dispute resolution processes described in Section IV, below. No later than thirty (30) days prior

13 to filing a status report with the Court, the Special Master shall serve a draft report on one

14 designated representative of counsel for Plaintiffs, and one designated representative of counsel

15 for Defendants, and shall afford counsel twenty (20) days to submit specific written objections.

16 Thereafter, the Special Master shall serve and file his periodic status report in accordance with

17 Rule 53(f) of the Federal Rules of Civil Procedure. The Special Master’s reports shall be final

18 unless, no later than twenty (20) days after service of the final report, a party files written

19 objections with the Court. If any party files objections, the opposing party shall have twenty (20)

20 days to file a reply to the objections with the Court. If objections are filed, the Court will

21 consider the matter and issue an order adopting the report in full or as modified, or rejecting the

22 report.

23

C. To assist the parties and the Court in addressing disputes regarding

24 implementation of the Court’s March 9, 2004 Stipulated Order for Permanent Injunctive Relief

25 (“Permanent Injunction”) including, but not limited to: monitoring, development of policies and

26 procedures, and compliance with the Permanent Injunction. This duty shall be exercised

27 according to the procedural requirements set forth below.

28 ////

3 Stipulation Re Special Master Order of Reference

Case 2:94-cv-00671-LKK-GGH Document 1234 Filed 08/19/2005 Page 4 of 10

1

D. To assist the parties in drafting standards for what constitutes substantial

2 compliance with the Permanent Injunction.

3

E. To advise the Court concerning any modification to the Permanent Injunction that

4 appears necessary to effectuate the injunction.

5

F. The duties set forth herein may be further specified, expanded or modified only by

6 Order of this Court.

7 III. Powers of the Special Master

8

The powers of the Special Master are to be used only as necessary to perform his or her

9 duties as the special master in this case and shall be limited to the following:

10

A. To enter, at any reasonable time with or without notice, any part of any facility,

11 institution, prison, parole office, records office, headquarters office, jail, Decentralized

12 Revocation Unit or other location necessary to monitor Defendants’ compliance with the

13 Permanent Injunction.

14

B. To interview, on a confidential basis or otherwise, staff, employees, contractors or

15 appointees of the California Department of Corrections and Rehabilitation (“CDCR”); staff,

16 employees, contractors, and appointees of any facility or institution where parolee class members

17 are held or reside or are offered programs or services as well as staff, employees, appointees and

18 contractors for the Institute of Administrative Justice at McGeorge School of Law, California

19 Parole Advocacy Project, for purposes of performing the duties of the Special Master under this

20 Order. Defendants shall provide suitable facilities and arrange for such interviews to be

21 conducted under conditions suitable to the Special Master. In addition, the Special Master may

22 engage in informal conferences with CDCR staff, employees, contractors, and appointees, and

23 such persons shall cooperate with the Special Master and respond to inquiries related to the

24 performance of the Special Master’s duties, including requests for the compilation or

25 communication of oral, written or electronic information that is not protected by the attorney-

26 client or other appropriate privilege. Any documents or electronic information provided by

27 Defendants to the Special Master shall also be copied to a designated representative of Plaintiffs’

28 counsel.

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1

C. To interview, confidentially or otherwise, parolee class members, provided they

2 consent. Defendants shall cooperate with the Special Master to arrange such interviews at CDCR

3 institutions and non-CDCR institutions where such class members may be incarcerated. For

4 class members who are not in custody, Defendants shall provide available contact information to

5 the Special Master in order to facilitate such interviews.

6

D. To attend formal meetings of any task force or implementation group of the

7 CDCR, or its appointees, designees and contractors, regarding Permanent Injunction

8 implementation, at the Special Master’s discretion.

9

E. To have access to the records, files and papers that are maintained by Defendants

10 to the extent that such access is related to the performance of the Special Master’s duties, and are

11 not privileged. Such access shall include all CDCR records, and inmate/parolee records,

12 including but not limited to, central files, medical records, parole field files, logs, as well as

13 databases, tracking systems such as RSTS (any version), DDPS (any version), and OBIS (any

14 version).

15

F. To attend, at the Special Master’s discretion, any monitoring tour conducted by

16 counsel or employees of any party regarding implementation of the Permanent Injunction.

17

G. To retain or employ assistants, administrative support staff, or any other person

18 whose advice or assistance the Special Master deems necessary to the effective fulfillment of the

19 Special Master’s duties. The special master shall inform the parties in writing at least 14 days

20 before he or she petitions the Court to employ such persons. The requirements of Rule 706 of the

21 Federal Rules of Evidence shall apply if the Special Master retains persons who are to provide

22 substantive or expert assistance, consultation, investigation, reporting or testimony. The parties

23 shall submit their opposition to the Court 14 days after receiving the special master’s notice that

24 he or she intends to retain such persons. All such persons, as well as the nature of their

25 compensation, shall be approved by the Court in advance of their retention or employment.

26

H. To meet with counsel for the parties, and other representatives of the parties, in

27 person or in a telephonic conference, to discuss Defendants’ compliance with the Permanent

28 Injunction.

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1

I. To hold and conduct hearings with respect to disputes submitted under Paragraphs

2 10 through 15, below. To this end, the Special Master shall have the power to require the

3 attendance of witnesses, including but not limited to Defendants, employees or appointees of

4 CDCR, and persons confined by the CDCR, and parolee class members, as provided in Rule

5 53(d) of the Federal Rules of Civil Procedure.

6

J. The powers described herein may only be modified by order of this Court.

7

K. In exercising the powers enumerated herein, the Special Master may act by him or

8 herself, or through employees of, or assistants to the Special Master who are approved by the

9 Court. All actions of such assistants shall be supervised and coordinated by the Special Master

10 in order to accomplish the objectives of this reference.

11

L. The Special Master shall not be empowered to direct Defendants or any of their

12 subordinates to take or to refrain from taking any specific action to achieve compliance. The sole

13 power to direct compliance and punish non-compliance remains with the Court.

14

M. The Special Master may communicate ex parte with the Court or with a party,

15 subject to the limitations set forth in Section II.B, above, and Sections IV.E.2 and IV.E.6, below.

16 IV. Dispute Resolution Procedures

17

A. The Permanent Injunction provides several methods for resolving disputes

18 regarding the development of policies, procedures, forms, and plans, including a method for

19 bringing disputed issues to the Court on shortened time, (Permanent Injunction ¶ 10), and a

20 method for resolving disputes regarding compliance withe the Permanent Injunction. Pursuant to

21 this Court’s May 23, 2005, Order regarding the appointment of a Special Master, the following

22 dispute resolution methods are supplemental to the Permanent Injunction procedures and do not

23 displace them. A party seeking the assistance of the Special Master to address a dispute shall

24 notify the opposing party or parties, and the Special Master, in writing delivered by email or fax

25 to a designated attorney representative of the opposing party, which notice shall contain a

26 statement setting forth the nature of the dispute and the remedy sought. The parties shall, within

27 twenty (20) days of receipt of this notice, meet and confer with the Special Master to address the

28 procedures to be used for addressing the dispute. For each dispute, the parties shall select one, or

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1 if necessary more than one, of the following procedural options, each of which is described in

2 more detail below:

3

1. Informal meet and confer among the parties and the Special Master and/or

4 experts.

5

2. Investigation and report by the Special Master and/or his or her assistants.

6

3. Formal mediation by the Special Master.

7

4. Fact-finding hearing by the Special Master with Report and

8 Recommendation to the Court, and de novo review by the District Court.

9 If the parties are unable to decide the proper procedural option to utilize for the dispute, the

10 Special Master shall choose the appropriate procedural option.

11

B. Informal meet and confer among the parties and the Special Master. The parties

12 may request the attendance of the Special Master or experts at the meet and confer sessions,

13 whether live or telephonic, described in Paragraphs 10, 26 and 29 of the Permanent Injunction.

14

C. Investigation and report by the Special Master and/or his or her assistants. The

15 parties may request that the special master investigate or direct a person hired under paragraph

16 5(g) to investigate a disputed issue and prepare a report based on that investigation. Any report

17 issued as a result of an investigation must follow the requirements for periodic status reports at

18 Section II.B, above, or fact-finding reports, at Section IV.E.6-8, below.

19

D. Formal mediation by the Special Master. The parties may initiate a formal

20 mediation by the Special Master. The Special Master may require the parties to submit

21 mediation briefs prior to the mediation session. Either party may elect to submit a confidential

22 mediation brief. The Special Master may not rely on ex parte communications received during

23 mediation as a basis for any finding of fact in a formal fact-finding hearing. Unless all parties

24 stipulate to extend the time, mediations must be complete within thirty (30) days of their

25 initiation.

26

E. Fact-finding hearing by the Special Master with Report and Recommendation to

27 the Court, and de novo review by the District Court. If the parties request, and the Special

28 Master agrees to hold the hearing, a dispute or set of disputes may be submitted to the Special

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1 Master for report and recommendation to the Court. The following procedures shall apply to

2 fact-finding hearings:

3

1. Upon the conclusion of a meet and confer process or mediation, the parties,

4 upon consent by the Special Master, may initiate a formal fact-finding and report process with

5 the Special Master.

6

2. Upon the agreement to submit a dispute or set of disputes to a fact-finding

7 hearing, the Special Master, to the extent possible, to refrain from ex parte communication with

8 any party, counsel, employees or other representatives or any party, including any employees of

9 the CDCR regarding the subject of the dispute. In any event, the Special Master shall not base

10 any findings of fact, conclusions of law, orders, or recommendations regarding the dispute on ex

11 parte communications. Instead, any findings, conclusions, orders or recommendations shall be

12 supported by the record evidence in declarations and/or testimony received at evidentiary

13 hearings.

14

3. No later than twenty (20) days after the parties agree to submit a dispute to a

15 fact-finding hearing, the parties, in consultation with the Special Master, shall jointly prepare a

16 proposed schedule providing deadlines for discovery (including production of documents and

17 depositions), briefing, evidentiary hearing, findings of fact, conclusions of law and

18 recommendations to the Court. The Special Master shall promptly resolve any disputes

19 regarding procedure, and issue a management order addressing the schedule for discovery,

20 briefing, hearing, findings of fact, conclusions of law and recommendations to the Court. A

21 party may seek review of the dispute management order by noticed motion to the Court.

22

4. The parties shall be entitled to reasonable discovery relevant to the pending

23 dispute before any hearing before the Special Master, including production of documents and

24 depositions. The Special Master shall have the authority to regulate discovery as provided in

25 Rule 53(c) of the Federal Rules of Civil Procedure.

26

5. Any hearing before the Special Master shall take place in the presence of a

27 certified court reporter. The reporter’s transcript and any documents or other materials accepted

28 into evidence by the Special Master shall constitute the record of the hearing.

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1

6. Upon completion of briefing and hearing, the Special Master shall have thirty

2 (30) days to file with the Court and serve on an attorney designated by each party findings of fact,

3 conclusions of law, and a recommendation to the Court for resolution of the dispute. Any

4 recommendation must be supported by findings of fact. All findings of fact shall be supported by

5 evidence submitted in the record of the hearing, or by declaration. Findings of fact may not be

6 supported by ex parte communications.

7

7. The parties shall have twenty (20) days after service to file and serve

8 Objections to Court regarding the findings, conclusions and recommendation. Each party shall

9 have ten (10) days after service of the other parties’ Objections to file and serve Replies. The

10 parties shall indicate in their Replies whether oral argument is requested.

11

8. Any finding of fact, conclusion of law, recommendation or procedural order

12 that is subject to objection shall be reviewed de novo by the Court.

13

9. Direct briefing of the dispute to the District Court. In cases of particular

14 urgency that are central to the purpose of the Permanent Injunction, a party may opt to bring

15 disputes directly to the District Court under Paragraphs 10, 28 and 29 of the Permanent

16 Injunction. Or both parties may consent to bypass the use of the special master if the parties

17 agree the issue should be briefed to the Court.

18 V. Compensation of the Special Master

19

A. The Special Master shall receive reasonable compensation at a rate to be set by

20 the Court. All reasonable expenses incurred by the Special Master in performing his or her

21 duties shall be reimbursed. The Special Master’s fees and expenses shall be borne by the

22 Defendants as part of the costs of this action.

23

B. The Special Master periodically, and in no event less frequently than once every

24 three months, shall submit to the Court and serve on the designated representatives of Defendants

25 and Plaintiffs, an itemized statement of the Special Master’s fees and expenses, which shall be

26 payable upon receipt.

27 ////

28 ////

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1 VI. Effect of Special Master on Stipulated Permanent Injunction

2

Pursuant to the Court’s ruling on May 23, 2005, the Special Master’s services should

3 supplement the methods set forth in the Permanent Injunction and are not intended to displace

4 them.

5

Dated: August 12, 2005

6

Respectfully submitted,

7

BILL LOCKYER

Attorney General of the State of California

8

JAMES M. HUMES

Chief Assistant Attorney General 9

FRANCES T. GRUNDER

10

Senior Assistant Attorney General

STEPHEN P. ACQUISTO

11

Supervising Deputy Attorney General

12

/s/ Benjamin T. Rice 13

BENJAMIN T. RICE

14

Deputy Attorney General

15

Attorneys for Defendants

16 17 Dated: August 12, 2005 18 19 20

By Ernest Galvan Ernest Galvan, ROSEN, BIEN & ASARO, LLP Attorneys for Plaintiffs

21 IT IS SO ORDERED 22 Dated: August 18, 2005. 23 24

By /s/Lawrence K. Karlton Hon. LAWRENCE K. KARLTON Senior United States District Judge

25

26

27

28

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1 BINGHAM, McCUTCHEN LLP KAREN KENNARD – 141925
2 KRISTEN A. PALUMBO – 215857 Three Embarcadero Center
3 San Francisco, California 94111-4067 Telephone: (415) 393-2000
4 PRISON LAW OFFICE
5 DONALD SPECTER – 83925 General Delivery
6 San Quentin, California 94964 Telephone: (415) 457-9144
7 ROSEN, BIEN & GALVAN, LLP
8 MICHAEL W. BIEN – 096891 HOLLY M. BALDWIN – 191317
9 ERNEST GALVAN – 196065 315 Montgomery Street, 10th Floor
10 San Francisco, California 94104 Telephone (415) 433-6830
11 Attorneys for Plaintiffs
12

13 UNITED STATES DISTRICT COURT
14 EASTERN DISTRICT OF CALIFORNIA
15

16 JERRY VALDIVIA, et al.,
17 Plaintiffs,
18 v.
19 ARNOLD SCHWARZENEGGER, et al.,
20 Defendants.
21

No. Civ. S-94-0671 LKK/GGH
STIPULATION AND ORDER REGARDING REMEDIAL SANCTIONS

22

23

24

25

26

27

28

STIPULATION AND ORDER REGARDING REMEDIAL SANCTIONS, No. Civ. S-94-0671 LKK/GGH
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1 THE PARTIES, THROUGH THEIR RESPECTIVE COUNSEL, HEREBY STIPULATE AS FOLLOWS:
2

3 WHEREAS:

4

1. On March 9, 2004, after notice to the class, receipt of objections, and a

5 fairness hearing, the Court approved a Stipulation for Permanent Injunctive Relief in this

6 matter (the “Valdivia Permanent Injunction”), requiring among other things that “as part of

7 the overall reform of the revocation process, the Parole and Community Services Division

8 of the Department of Corrections will begin using remedial sanctions/community based

9 treatment,” including “the Substance Abuse Treatment Control Units, Electronic

10 Monitoring, Self-Help Outpatient/aftercare programs, and alternative placement in

11 structured and supervised environments.” Valdivia Permanent Injunction, Exhibit A at 1.

12 Defendants set forth a specific goal for remedial sanctions, “to reduce the number of returns

13 to prison for violations of parole by up to 10% in 2004 and by up to 30% by 2006.” Id. at 2.

14

2. On June 8, 2005, after notice and a hearing, the Court ruled that “the

15 permanent injunction requires that defendants (1) consider remedial sanctions throughout

16 the new parole revocation process, and that the remedial sanctions include (2) ‘the

17 Substance Abuse Treatment Control Units, Electronic Monitoring, Self-Help

18 Outpatient/aftercare programs, and alternative placement in structured and supervised

19 environments.’” (June 8, 2005 Order at 10:7-12.) The Court held that the Valdivia

20 Permanent Injunction’s “reference to and attachment of the VRP [or Valdivia Remedial Plan

21 at Exhibit A]… conforms with the ‘four corners rule’ as well as Rule 65(d)” and found that

22 Defendants “were in violation of the Permanent Injunction Order by virtue of the

23 elimination of the remedial sanctions of Electronic Monitoring and SATCU.” (June 8, 2005

24 Order at 8:12-14; 15:19-21.)

25

3. Defendants have stated their intention to replace SATCU with In-Custody

26 Drug Treatment Programs (“ICDTP”) and Electronic Monitoring with Electronic In-Home

27 Detention (“EID”). Whether and to what extent these new programs are appropriate

28

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1 substitutes, and are being implemented in a manner that substantially replaces what was lost

2 when SATCU and Electronic Monitoring were eliminated has not been determined.

3

4. On July 4, 2006, the Special Master directed Defendants to “prepare a new

4 remedial sanctions plan, to be presented to the Special Master and the Plaintiffs’ attorneys

5 no later than November 30, 2006.” Specifically, the Special Master stated that “the plan

6 should include any changes in programs, policies or courses of action that meet the spirit

7 and projected numbers of the original remedial sanctions plan,” and that “the plan must

8 include specific details concerning the programs to be offered; the populations for which

9 they are designed; the logistics required to design, fund and contract for, and oversee the

10 programs, including training of BPH and DAPO staff in using them; and anticipated

11 timelines for each of those steps.”

12

5. The parties disagree as to the scope of Defendants’ obligations pursuant to the

13 Court’s June 8, 2005 Order and the Valdivia Permanent Injunction, and reserve all rights to

14 resolve this disagreement either with the assistance of the Special Master dispute resolution

15 process or through litigation. The parties agree, however, that certain steps must be taken

16 immediately to ensure timely compliance with the remedial sanctions provisions of the

17 Valdivia Permanent Injunction. Defendants contend that the steps recited herein may bring

18 them into substantial compliance with the June 8, 2005 Order. Plaintiffs disagree, and in

19 any event, believe that full compliance with the Permanent Injunction is the important

20 target.

21

6. The parties have been meeting and continue to meet regularly with the Special

22 Master concerning remedial sanctions. The Special Master joins in the parties’ request that

23 the Court enter this Order, in furtherance of the remedial process.

24

THEREFORE, IT IS HEREBY ORDERED THAT:

25 I. In Custody Drug Treatment Program (ICDTP)

26

A. Defendants have stated that their goal is to establish 1800 ICDTP beds.

27 Plaintiffs have not agreed that there is any evidence that 1800 ICDTP beds is the

28 appropriate number to ensure that ICDTP is made reasonably available at all stages of the

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1 parole revocation process. Defendants represent that approximately 288 ICDTP beds are

2 currently operating as of March 16, 2007. Defendants shall make every effort to make 1800

3 ICDTP beds available for use as remedial sanctions no later than April 1, 2008. In the

4 interim, Defendants shall take the following steps:

5

B. Defendants shall make every effort to have 150 ICDTP beds operational and

6 available for use as remedial sanctions for parole violators in Los Angeles County no later

7 than August 1, 2007, including at least 30 ICDTP beds designated for female parolees.

8

C. Defendants shall make every effort to have 90 new ICDTP beds operational

9 and available for use as remedial sanctions in Orange County no later than November 1,

10 2007, including at least 30 ICDTP beds designated for female parolees.

11

D. In addition to the 528 ICDTP beds discussed above (288 existing plus 150 in

12 Los Angeles County plus 90 in Orange County), Defendants shall take all steps necessary to

13 ensure that they reach 1800 beds by April 1, 2008 in a phased manner. Defendants shall

14 phase in the remaining 1272 beds with the following targets: by November 1, 2007, 424

15 additional beds anywhere in the state; by January 1, 2008, 200 additional beds anywhere in

16 the state; by February 15, 2008, 200 additional beds anywhere in the state; and the balance

17 of 448 beds by April 1, 2008. With the addition of these beds, by April 1, 2008, there shall

18 be no fewer than 400 ICDTP beds per Region, and no fewer than 40 ICDTP beds designated

19 for female parolees in each Region. Defendants represent that they are making and will

20 continue to make special efforts to secure ICDTP beds in underserved areas of Region IV.

21

E. The figures in this section are not intended to establish any set ratios of male

22 to female beds.

23

F. Defendants shall periodically report to the Special Master and Plaintiffs’

24 counsel on their efforts to secure the ICDTP beds described herein with the first report due

25 June 1, 2007, and with reports as needed thereafter, and at least every 60 days.

26

27 II. Electronic In Home Detention (EID)

28

By May 1, 2007, Defendants shall have 500 EID units operational, with 250 of

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1 these units dedicated to use as remedial sanctions, and the remaining 250 available for use

2 either in parole supervision or remedial sanctions. CDCR will provide the minimal level of

3 telephone service required for EID as described in DAPO policy no. 07-06 at the discretion

4 of CDCR.

5

6 III. Interim Use of Residential Multi-Service Center (RMSC), Female Residential Multi-

7

Service Center (FRMSC), and Parolee Service Center (PSC)

8

A. While Defendants are building their ICDTP capacity leading up to 1800 beds

9 by April 1, 2008, Defendants shall make existing and proposed RMSC, FRMSC and PSC

10 beds available for use as remedial sanctions in the manner set forth below.

11

B. Beginning immediately, and during the above-described phase-in period for

12 ICDTP, Defendants small make one-half (1/2) of all RMSC, FMRSC and PSC beds

13 available as remedial sanctions.

14

C. Defendants represent that they are making and will continue to make special

15 efforts to secure RMSC, FRMSC and PSC resources in the underserved areas of Region IV.

16

D. The parties shall meet and confer, on or before April 30, 2008, as to whether

17 and to what extent, the RMSC, FRMSC and PSC programs shall remain available as

18 remedial sanctions.

19

E. The intent of this section is not to give RMSC, FRMSC, and PSC the same

20 status under the Valdivia Permanent Injunction that ICDTP and EID may have.

21

22 IV. Distribution of Policy and Procedure Information

23

A. Defendants shall undertake to announce, publicize and train the management

24 and staff of DAPO and BPH regarding the availability of ICDTP, RMSC, FRMSC, and PSC

25 beds, as well as EID units for use as remedial sanctions in two phases: an immediate

26 interim phase, and a long-term phase.

27

1. Interim Memorandum to Field. By March 30, 2007, Defendants shall

28 provide Plaintiffs’ counsel and the Special Master with a draft interim communication to the

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1 field regarding the availability of ICDTP, RMSC, FRMSC, and PSC beds and EID Units for

2 use as remedial sanctions, including all information that Defendants believe is necessary to

3 facilitate immediate use of these programs as remedial sanctions, including but not limited

4 to a statement the above-listed programs are available as remedial sanctions, attachment of

5 existing policy and procedure documents regarding their use, existing inclusionary and

6 exclusionary criteria, and lists of the program names, contact information and numbers of

7 beds. The interim memorandum shall also include information regarding other readily

8 identifiable existing programs that are available as remedial sanctions, and a statement as to

9 what populations they are available for, including but not limited to the Department of

10 Addiction Recovery Services SASCA aftercare programs for qualified parolees, the

11 Community Based Coalition (CBC) program in Los Angeles County, and DAPO Day

12 Reporting Centers. The Interim Memorandum to Field shall also include appropriate

13 preliminary information on inter-county transfers, as discussed at Section VI.A, below.

14 Plaintiffs’ counsel shall respond to this document no later than April 3, 2007, and

15 Defendants shall distribute it to the field and to the parolee defense panel as soon as possible

16 thereafter.

17

2. Long-Term Memorandum to Field. Defendants have represented that

18 they intend to undertake revisions to ICDTP, EID, RMSC, and PSC policies and procedures

19 to facilitate their use as remedial sanctions, including but not limited to reviewing and

20 reconsidering exclusionary criteria to make the programs more widely available.

21 (Defendants represent that FRMSC policies and procedures have not yet been written, and

22 will be written to comport with the principles stated here.) By May 1, 2007, Defendants

23 shall provide Plaintiffs’ counsel and the Special Master with a draft long-term memorandum

24 to the field regarding the availability of ICDTP, RMSC, and PSC beds, as well as EID

25 Units, for use as remedial sanctions. The long-term memorandum shall also include

26 information regarding other readily identifiable existing programs that are available as

27 remedial sanctions, and a statement as to what populations they are available for, including

28 but not limited to the Department of Addiction Recovery Services SASCA aftercare

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1 programs for qualified parolees, the Community Based Coalition (CBC) program in Los

2 Angeles County, and DAPO Day Reporting Centers. The Long-Term Memorandum to

3 Field shall also include information on inter-county transfers, as discussed at Section VI.A,

4 below. Plaintiffs’ counsel shall respond to this document no later than May 15, 2007. The

5 parties shall meet and confer on May 31, 2007 regarding the Long-Term Memorandum.

6 Defendants shall make all reasonable efforts to distribute it to the field and to the parolee

7 defense panel no later than July 2, 2007.

8

B. Defendants shall also develop, after consultation with Plaintiffs’ counsel and

9 the Special Master, no later than August 15, 2007, an implementation and training plan to

10 assure that remedial sanctions are reasonably considered at each stage of the parole

11 revocation process, and are appropriately and fairly available to parolees.

12

C. Defendants agree to evaluate remedial sanctions programs. The inclusion of

13 this requirement is not a concession by Defendants that evaluations or their criteria are

14 within the scope of the Valdivia Permanent Injunction.

15

16 V. Graduated Sanctions/Parole Violation Matrix

17

Defendants have represented that they are investigating the development and use of

18 a decision-making matrix to provide DAPO and BPH decision-makers with CDCR

19 supported and community-based alternatives to incarceration for response to violations of

20 parole. Defendants shall report to the Special Master and Plaintiffs on the progress and

21 results of this investigation no later than July 1, 2007, and periodically thereafter as

22 necessary, but at least every 60 days until completion of the matrix investigations or

23 resulting matrix implementation.

24

25 VI. Fair Consideration/Equal Access

26

A. County to County Transfer Policy

27

The interim and long-term memoranda described above at Section IV.A shall include

28 appropriate statements of the remedial sanctions county-to-county transfer policy. The

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1 Memoranda shall explain that temporary placement of out-of-county parolees in remedial

2 sanctions is not restricted by the 5% limitation on out-of-county transfers. The Memoranda

3 shall expressly state that an otherwise eligible parolee shall not be excluded from a remedial

4 sanctions program based solely on the unavailability of that program in his or her county of

5 residence or Parole Region. The interim and long-term memoranda shall direct decision-

6 makers to inquire about the availability of an appropriate program anywhere in the state and

7 provide directions for ascertaining availability of a placement and effecting an out-of-

8 county placement. The appropriateness of a county to county transfer is within the sole

9 discretion of the CDCR.

10

B. Parolees with Mental Disabilities

11

In establishing the 1800 ICDTP beds referred to above in Section I.A, above,

12 Defendants shall make every effort to secure 20 beds in each region targeting the needs of

13 parolees with dual diagnoses of mental illness and substance abuse. These efforts shall be

14 documented in the periodic reports described above at Section I.F.

15 VII. Unresolved Subjects
16 Among the remedial sanctions subjects that are as yet unresolved, the parties agree
17 to engage in further negotiations on the following topics and to file a Status Report with the
18 Special Master on said negotiations by September 1, 2007. Among the remaining disputes
19 are whether and to what degree the issues below are within the scope of this case.
20 A. Alternative Placement in Structured and Supervised Environments:
21 Clarification regarding Defendants’ currently funded, currently operating, and proposed
22 CDCR and community-based residential programs available to DAPO and BPH staff for use
23 as remedial sanctions.
24 B. Self-Help Outpatient/Aftercare Programs: Clarification regarding Defendants’
25 currently funded, currently operating, and proposed CDCR and community-based Self-Help
26 Outpatient/Aftercare Programs available to DAPO and BPH staff for use as remedial
27 sanctions.
28

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1

C. Parolees with Disabilities: Defendants’ plan to provide remedial sanctions to

2 parolees with disabilities that are the same or equivalent to remedial sanctions available to

3 parolees without disabilities, including the removal of any and all blanket exclusions of

4 parolees from remedial sanctions based on disabilities or past or present participation in the

5 Disability Placement Program, Developmental Disability Program, or mental health case

6 load.

7

D. Female Parolees: Defendants’ plan to provide remedial sanctions to female

8 parolees that are the same or equivalent to remedial sanctions available to male parolees,

9 including the availability of PSAP or programs providing equivalent benefits to female

10 parolees.

11

E. Implementation, Training, and Supervision: Defendants’ plan, including

12 timeline, for updating policies and procedures regarding remedial sanctions, conducting

13 remedial sanctions training for DAPO and BPH decision-makers, and the development of a

14 system by which every DAPO and BPH decision maker is able to determine the availability

15 of remedial sanctions statewide on any given day.

16

F. Compliance Measurement: Defendants’ plan, including timeline, for the

17 modification of information systems, including RSTS and CalParole, to track the

18 consideration of remedial sanctions at each stage of the parole revocation process.

19

G. Parolee Defense Counsel: Defendants’ plan to provide to parolee defense

20 counsel all policies and procedures circulated to DAPO and BPH decision-makers regarding

21 the availability of remedial sanctions statewide , including the eligibility and exclusionary

22 criteria for each program.

23

H. Remedial Sanctions Programs to Address the Needs of Parolees with Severe

24 Mental Illness: The parties have discussed and continue to discuss the problems of parolees

25 with severe mental illness whose violations are linked to their mental illness or unmet

26 mental health needs. Plaintiffs’ position is that in order to be successful and meaningfully

27 available, the remedial sanctions program must include some programs specifically directed

28 at parolees with current functional impairments at levels comparable to those required at

STIPULATION AND ORDER REGARDING REMEDIAL SANCTIONS, No. Civ. S-94-0671 LKK/GGH

8

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Case 2:94-cv-00671-LKK-GGH Document 1323 Filed 04/04/2007 Page 10 of 10

1 Enhanced Outpatient Program, Mental Health Crisis Bed, and Department of Mental Health

2 Levels of Care in CDCR Adult Institutions.

3

4

This Stipulated Order shall be binding on the parties as of the date it is fully

5 executed by them, regardless of whether it has been entered by the Court as of that time.

6 The provisions of this Order shall remain in full force and effect until further order of this

7 Court.

8 IT IS SO STIPULATED.

9 Dated: April 2, 2007
10

ROSEN, BIEN & GALVAN, LLP

11 12 13 14 Dated: April 2, 2007 15 16 17

By /s/ Michael W. Bien Michael W. Bien Attorneys for Plaintiffs
OFFICE of the ATTORNEY GENERAL of the STATE OF CALIFORNIA
By /s/ Katherine Nelson Katherine Nelson Deputy Attorney General

18

Attorneys for Defendants

19

20 The Special Master has reviewed this Stipulation and adopts its terms as a Recommendation

21 to the Court.

22 Dated: April 2, 2007

By /s/ Chase Riveland

23

CHASE RIVELAND

24

Special Master

25 IT IS SO ORDERED.
26
27 Dated: April 3, 2007

28

STIPULATION AND ORDER REGARDING REMEDIAL SANCTIONS, No. Civ. S-94-0671 LKK/GGH

9

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 Case 2:94-cv-00671-LKK-GGH Document 540 Filed 09/08/2000 Page 1 of 12

1

2 '

'SEP'" 8 2000

3

CLERK, U.S. D!Snli~.;i ",VljilT

4

EASTERN DISTRICT Of CALIFORNIA BY, ___ _ ~~~;- ____

-

D9UTY CLERK

5

6

7

8

UNI~ED STATES DISTRICT COURT

I

9

EASTERN DISTRICT OF CALIFORNIA

10
11 JERRY VALDIVIA, ALFREDI YANCY, and HOSSIEWELCH, on their own
12 beha~f and ,~n bebalf ?I f the class of all persons similarly situated,
13 Plaintiffs,
14 v.
15 GRAY DAVIS, Governor ff the State
16 of California, et al.

NO. CIV. S-94-671 LKKIGGH
oRD E R

17

_

_

Defendants.
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _- +_

_

_

_

_

_

_

_

_

_

_

_ 1

18

19

Plaintiffs file this class action lawsuit alleging that

20 defendants' parole r vocation practices violate the Due Process

21 Clause of the Fourteen h Amendment. Defendants now move to dismiss

22 the complaint as

d by Heck v. Humphrey, 512 U.S. 477 (1994)

23 and its progeny.
24 IIII 25 IIII 26 IIII

s<-fV

1

Case 2:94-cv-00671-LKK-GGH Document 540 Filed 09/08/2000 Page 2 of 12

1

I.

2

THE COMPLAINT

3

The plaintiff cl ss was certified on December 1, 1994 pursuant

4 to Fed. R. Civ. P. 2 (b) (2) to consist of three categories: (1)

5 California parolees at largej (2) California parolees in custody

6 who are awaiting a f nal revocation hearingj and (3) California

7 parolees in custody o have been found in violation of parole and

8 who have been sentenc d to prison custody.

9

Plaintiffs

that the Board of Prison Terms ("BPT")

10 violates due process uring the parole revocation process.

11 Specifically,

s plaintiffs allege constitutional

12 deprivations resulti from, inter alia, unlawful arrests, see

13 Fourth Amended Compl

filed October 14, 1998, ("FAC") ~ 2j

14 lack of preliminary arings, see Plaintiff's Statement of Claims,

15 filed May 17, 1999, (' SOC") at 2 j 1 invalid waiver of the right to

16 due process at screen ng hearing, see id. at 3; failure to provide

17 parolees with written notice of alleged parole violations, see SOC

18
In defining th class allegations, the court looks not only 19 to the Fourth Amended Complaint but also to Plaintiff's Statement
of Claims, filed with the court on May 17, 1999. Federal Rule of 20 civil Procedure 12(b) provides that if, on a motion to dismiss for
failure to state a cl im upon which relief may be granted, matters 21 outside the complain are presented and considered, the motion
should be treated a one for summary judgment under Rule 56. 22 Matters that are prop rly subject to judicial notice, however, may
be considered by a curt without converting a motion to dismiss 23 into one for summar judgment. See Mack v. South Bay Beer
Distrib. r Inc., 798 F.2d 1279, 1282 (9th Cir. 1986). Plaintiffs' 24 Statement of Claims i a document subject to judicial notice. See
Fed. R. Evid. 201. M reover, I may not only judicially notice the 25 existence of that doc ment, but the substance of it as well. See
Sinaloa Lake Owners ss'n v. Cit of Simi Valle, 882 F.2d 1398, 26 1403 (9th Cir. 1989).

2

Case 2:94-cv-00671-LKK-GGH Document 540 Filed 09/08/2000 Page 3 of 12

1 at 4; failure to disd:::lose the evidence against parolee r see id.;

2 denial of the right tq> be heard at parole revocation hearings r see 3 id.; denial of righ1: to call witnesses at parole revocation

4 hearings r see SOC at '2; denial of the right to cross examine

5 material witnesses at!parole revocation hearings, see id.; denial

6 of counsel at parole lcevocation hearings r see SOC at 2 -3; failure

7 to provide a detached and neutral hearing officer, see id.; and

8 failure to provide a written statement by the factfinder as to the

9 evidence relied upon and reasons for revoking parole. See id.

10

The Fourth Amended Complaint seeks declaratory and

11 prospective injunctive relief requiring the state to protect the

12 class members' constitutional rights under the Fourteenth 13 Amendment. 2

14

II.

15

FED. R. CIV. P. 12 (b) (6)

16

On a motion to dismiss r the allegations of the complaint

17 must be accepted as true. See Cruz v. Beto, 405 U.S. 319, 322

18 (1972). The court is bound to give the plaintiff the benefit of

19 every reasonable inference to be drawn from the "well-pleaded"

20

2 Specifically, plaintiffs request that this court
21

22

[aJdjudge and qeclare that the policies, patterns r conduct and practices are in violation of the rights of

the plaintiffs .

[andJ [~J

. permanently enjoin

23

defendants r their agents, employees, and all person

acting in concert with them r from subjecting plaintiffs

24

and the class thery represent to the unconstitutional and

illegal policie~r patterns, conduct and practices

25

described above.

26 FAC at 14.

3

- - - - - - - - - - - - - - - _ _ _._ ... .. .........

. ..

Case 2:94-cv-00671-LKK-GGH Document 540 Filed 09/08/2000 Page 4 of 12

1 allegations of the co~plaint. See Retail Clerks Intern. Assln,

2 Local 1625 AFL-CIO v. Schermerhorn, 373 U.S. 746, 753 n.6 3 (1963). Thus, the pl~intiff need not necessarily plead a 4 particular fact if th~t fact is a reasonable inference from

5 facts properly allegeU. See id.i see also Wheeldin v. Wheeler, 6 373 U.S. 647, 648 (1963) (inferring fact from allegations of 7 complaint).

8

In general, the romplaint is construed favorably to the

9 pleader. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). So 10 construed, the court ~ay not dismiss the complaint for failure 11 to state a claim unle~s it appears beyond doubt that the

12 plaintiff can prove nb set of facts in support of the claim

13 which would entitle h'm or her to relief. See Hishon v. King &

14 Spalding, 467 U.S. 69 73 (1984) (citing Conley v. Gibson, 355

15 U.S. 41, 45-46 (1957)

In spite of the deference the court is

16 bound to pay to the p aintiffls allegations, however, it is not

17 proper for the court 0 assume that "the [plaintiff] can prove

18 facts which [he or sh~] has not alleged, or that the defendants

19 have violated the .

laws in ways that have not been

20 alleged." Associated General Contractors of California Inc. v. 21 California State Counril of Carpenters, 459 U.S. 519, 526

22 (1983)
23 IIII 24 IIII 25 IIII 26 IIII

4

----------

Case 2:94-cv-00671-LKK-GGH Document 540 Filed 09/08/2000 Page 5 of 12

1

III.

2

MOTION FOR RECONSIDERATION

3

This is defendants' second motion to dismiss plaintiffs'

4 class action lawsuit as barred by Heck, 512 U.S. 477. The court 5 denied defendants' prior motion because the complaint "seeks

6 only prospective relief of parole revocation and does not

7 challenge the current status of any plaintiff." Order dated 8 November 14, 1994 at 2. 3 Though not styled as a motion for

9 reconsideration, the defendants' pending motion must be viewed

10 as one to reconsider that order. Based on the analysis below, I

11 conclude that reconsideration of that ruling is appropriate, but

12 upon reconsideration an order denying the motion is also

13 appropriate.

14 A. STANDARDS

15

"Under the 'law of the case' doctrine, a court is generally

16 precluded from reconsidering an issue that has already been

17 decided by the same court, or a higher court in the identical

18 case." United States v. Alexander, 106 F.3d 874, 876 (9th Cir.

19 1997) (citing Thomas v. Bible, 983 F.2d 152, 154 (9th Cir.

20 1993)) Although motions to reconsider are directed to the

21 sound discretion of the court, see Kern-Tulare Water Dist. v.

22

23

3 Plaintiffs' pFayer for declaratory relief was interpreted

by the court then, a$ it is now, as a general declaration that 24 defendants' policies violate the Due Process Clause and not a

specific declaration that, in any particular adj udication, the 25 parole board violated or is violating the Due Process Clause.

See Order at 2 ("plaintiffs 26 status of any plaintiff.")

. do [J not challenge the current

5

._------------- ---_.- - - - - - - - - - - - --'--

Case 2:94-cv-00671-LKK-GGH Document 540 Filed 09/08/2000 Page 6 of 12

1 City of Bakersfield, 634 F. Supp. 656, 665 (E.D. Cal. 1986), 2 aff'd in part and rev'd in part on other grounds, 824 F.2d 514 3 (9th Cir. 1987), considerations of judicial economy weigh 4 heavily in the process. Generally speaking, before 5 reconsideration may be granted there must be a change in the 6 controlling law or facts, the need to correct a clear error, or 7 the need to prevent manifest injustice. See Alexander, 106 F.3d 8 at 876.

9

Defendants argue that since this court's 1994 denial of

10 their motion, the controlling law has changed and now precludes

11 plaintiffs' claims. While I agree that a subsequent case

12 provides additional information on the applicability of Heck to

13 the matter at bar thus justifying reconsideration, I conclude it

14 does not alter the court's earlier conclusion.

15 B. HECK AND EDWARDS

16

This court's prior decision fell between the High Court's

17 decision in Heck and Edwards v. Balisok, 520 U.S. 641 (1997).

18 Because Balisok deals directly with the application of Heck to

19 prison disciplinary proceedings reconsideration of the court's

20 previous order is appropriate. As I now explain, however, the

21 extension of Heck in ~alisok does not effect the basis for this

22 court's 1994 denial of defendants' motion.

23

In Heck v. Humphrey, the plaintiff sought to recover

24 compensatory damages under § 1983 for an allegedly unlawful,

25 unreasonable, and arbitrary investigation leading to his arrest

26 and conviction for murder. 512 U.S. at 478-79. As I have

6

Case 2:94-cv-00671-LKK-GGH Document 540 Filed 09/08/2000 Page 7 of 12

1 previously noted l the effect of Heck is that "even if a claimant

2 [only] seeks damages under § 1983 1 if the suit requires a 3 determination of the constitutionality of the procedures

4 underlying the prisoner's confinement or its duration, the

5 prisoner cannot [proceed] under § 1983, and instead must proceed

6 under habeas." Marquez v. Guttierez, 51. F.Supp.2d 1020, 1022

7 (E.D. Cal. 1999). As noted, Balisok "extended Heck to prison

8 disciplinary proceedings." Id. at 1023. Plaintiff there sued

9 Washington state prison officials under § 1983 alleging that the

10 procedures used in a disciplinary hearing which deprived him of

11 good time credits violated due process. Specifically, he

12 charged that the hearing officer concealed exculpatory witness

13 statements and therefore intentionally denied him the

14 opportunity to present evidence on his own behalf. Balisok

15 sought "a declaration that the procedures employed [in his good

16 time credit revocation] violated due process, compensatory and

17 punitive damages for use of the unconstitutional procedures,

18 [and] an injunction tp prevent future violations." Balisok,

19 520 U.S. at 643. Thel Court held that Heck barred his damage
20 claim because the pla~ntiff's allegations of bias and deceit on I
21 the part of the hearij:1g officers, if proven, would "necessarily 22 imply the invalidity pI f the deprivation of his good time
,
23 credits." rd. at 6461.

24

The Court noted,! however, that plaintiff also sought

25 prospective injunctiv~ relief concerning alleged routine

26 violations of due pro!cess. The Court remanded that claim to the

7

Case 2:94-cv-00671-LKK-GGH Document 540 Filed 09/08/2000 Page 8 of 12

1 district court for further proceedings since "[o]rdinarily, a

2 prayer for such prospective relief will not 'necessarily imply I

3 the invalidity of a previous loss of good time credits and so

4 may properly be brought under § 1983." Id. at 648. The Court1s

5 holding in that regard appears inevitable if the basis for the 6 Court I s Heck jurispru~ience is kept in mind.

7

The ultimate rat~onale for Heck and its progeny is that

8 claims related to unconstitutional procedures resulting in

9 confinement fall exclusively within habeas, and thus outside §

10 1983. See id. at 481 (citing Preiser v. Rodriguez, 411 U.S. 475

11 (1975)). Accordingly, if a claim falls outside of the court's

12 habeas jurisdiction and otherwise falls within the reach of

13 § 1983, Heck is not a barrier to jurisdiction. As I now

14 explain, such is the case with the suit at bar, which seeks

15 prospective injunctiv~ relief.

16

The sine qua non of a habeas action is that the petitioner

17 complains that he is confined in violation of the Constitution.

18 See Maleng v. Cook r 41;'0 U.S. 488 r 490 (1989). The essence of a 19 suit for prospective ~eliefr however r is that while the

20 plaintiff is not presently suffering the loss that is the

21 subject of the suit, he will. Because plaintiffs ' claims do not

22 address their present confinement but only future conduct, they

23 fall outside habeas, and because they are predicated on asserted 24 constitutional violations, they fall within § 1983. 4 In sum,

25 It is also fo~ this reason that the plaintiffs ' complaint
26 does not run afoul of the requirement that federal courts abstain

8

Case 2:94-cv-00671-LKK-GGH Document 540 Filed 09/08/2000 Page 9 of 12
1 then, Balisok does not affect this court's 1994 denial of
2 defendants' Heck motion insofar as it relied on the plaintiffs'
3 prayer for future injunctive relief and declaratory relief. 5
4 IIII 5 IIII 6 IIII 7 IIII 8 IIII 9 IIII 10 IIII
11
12 from intervening in p~nding state court adjudications. See Younq v. Harris, 401 U.S. 31, 46 (1971). To the extent that evidence of
13 the plaintiffs' inditidual experiences before the BPT will be relied upon in proving the class claims, this court has previously
14 determined that Heck rnd its progeny do not bar the introduction of such evidence. sef Marquez, 51 F.Supp.2d at 1024.
15 5 Ninth Circuitf decisions since Heck do not disturb the
16 reasoning underlying ihis court's 1994 decision since they do not address future injunctlive relief. See,~, Gotcher v. Wood, 122
17 F.3d 39, 39 (9th cir.11997) ("Edwards forecloses Gotcher's entire compensatory claim urider 42 U. S. C. § 1983.") (emphasis added) i
18 Butterfield v. Bail) 120 F.3d 1023, 1024 (9th Cir. 1997) ("Appellant's claim fcbr damages amounts to a collateral attack on
19 his denial of parole.ju) i Neal v. Shimoda, 131 F.3d 818, 824 (9th
a Cir. 1997) (" [W] hen state prisoner seeks damages in a § 1983
20 suit, the district co~rt must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his
21 conviction or sentenck,,) (citation omitted) i Smithhart v. Towery, 79 F.3d 951, 952 (fth Cir. 1996) (plaintiff's damage claim
22 precluded under Heck pS it would render his conviction invalid) .
The court's holding in Harvey v. Waldron, 210 F.3d 1008, 1014 23 (9th Cir. 2000) (Hecklbar on suits for damages applies to pending
criminal charges) is ~napposite because, as noted in footnote 3, 24 supra, the plaintiffE? do not challenge past or pending parole
revocations. Finall~, this court has previously found Clark v. 25 Stadler, 154 F.3d. 18~ (5th Cir. 1998) I to the extent it reaches
a different conclusiory unpersuasive. See Marquez, 51 F.Supp.2d at 26 1025.
9

Case 2:94-cv-00671-LKK-GGH Document 540 Filed 09/08/2000 Page 10 of 12

1

IV.

2

ORDER

3

For all the above reasons, defendants' motion to reconsider

4 is GRANTED and, upon reconsideration, defendants' motion to

5 dismiss is DENIED.

6

IT IS SO ORDERED.

7

DATED: September 6, 2000.

8

9
10 COURT
11
12

13

14

15

16

17

18

19 20 21

22

23

24

25
26

10

Case 2:94-cv-00671-LKK-GGH Document 540 Filed 09/08/2000
United qtates District Court for the
Eastern District of California Seiptember 8, 2000

Page 11 of 12 ljr

* * CERTIFIqATE OF SERVICE * *

2:94-cv-00671

Valdivias v.
Wilson et al

I, the undersigned, hereby certjJ.fy that I am an employee in the Office of the Clerk, U.S. District Court, IEastern District of California.
That on September 8, 2000, I SEi:RVED a true and correct copy (ies) of the attached, by placing said cqlPY (ies) in a postage paid envelope addressed to the person(s) here~nafter listed, by depositing said envelope in the U.S. Mail, by p~acing said copy(ies) into an inter-office delivery receptacle located in bhe Clerk's office, or, pursuant to prior authorization by counsel, via f~csimile.

William Vernon Cashdoll~.r

SJ/LKK

Attorney General's OffiG:e of the State of California

PO Box 944255

1300 I Street

Suite 125

Sacramento, CA 94244-2550

Stephen J Perrello Jr Law Office of Stephen J Perrello
POBox 880738 San Diego, CA 92168

Alexander L Landon Law Offices of Alex Landon 2442 Fourth Avenue San Diego, CA 92101

Karen Kennard McCutchen Doyle Brown and Enersen Three Embarcadero Center:
Suite 1800 San Francisco, CA 94111

Michael W Bien Rosen Bien and Asaro 155 Montgomery Street

CEaisgeh2t:h94-Fcvlo-0o0r671-LKK-GGH Document 540 San Francisco, CA 9410~~
Donald Specter Prison Law Office General Delivery San Quentin, CA 94964

Filed 09/08/2000

Page 12 of 12

BY:
D

 
 Case 2:94-cv-00671-LKK-GGH Document 1271 Filed 05/26/2006 Page 1 of 1

1

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

8

EASTERN DISTRICT OF CALIFORNIA

9

10 JERRY VALDIVIA, ALFRED YANCY, and HOSSIE WELCH, on their own
11 behalf and on behalf of the class of all persons similarly situated,
12 Plaintiffs,
13 v.
14 ARNOLD SCHWARZENEGGER, Governor of
15 the State of California, et al.,

NO. CIV. S-94-671 LKK/GGH O R D E R

16

Defendants.

/

17

18

The court is in receipt of a motion to amend the

19 “stipulated order for permanent injunctive relief” in the above-

20 captioned case. Aside from being untimely, it is also without

21 merit. The motion is DENIED.

22

IT IS SO ORDERED.

23

DATED: May 24, 2006.

24

25

26

 
 Case 2:94-cv-00671-LKK-GGH Document 1119 Filed 09/17/2004 Page 1 of 5

1 2 3
4 5
6
7 8
LOD

BINGHAM, McCUTCHEN LLP KAREN KENNARD - 141925 KRISTEN A. PALUMBO - 215857 Three Embarcadero Center San Francisco, California 94111-4067 Telephone: (415) 393-2000
PRISON LAW OFFICE DONALD SPECTER - 83925 General Delivery San Quentin, California 94964 Telephone: (415) 457-9144
ED for Plaintiffs

FILE • ,.::-!'
SEP 1 7 ZOU4
~ASCTLEERRNK'oUISST. RDIISCTTROFIC~.',,.::J.'U.'R~OTRNIA
ROSEN, BIEN & ASARO, LLP MICHAEL W. BIEN - 096891 HOLLY M. BALDWIN -191317 ERNEST GALVAN - 196065 155 Montgomery Street, 8th Floor San FrancIsco, California 94104 Telephone (415) 433-6830

10
SEP It

UNITED STATES DISTRICT COURT

8EYASCTLEERRNK,DUISSDT.Rl"0:l1rCV__OR,,,FIC. CTACLO\UFROTA~\~~

EASTERN DISTRICT OF CALIFORNIA

14 JERRY VALDIVIA, et aI.,

15

Plaintiffs,

16 v.

17 ARNOLD SCHWARZENEGGER, et aI.,

No. Civ. S-94-0671 LKKlGGH
V(~
[PROI'OSEt>] ORDER AND JUDGMENT AWARDING REASONABLE ATTORNEYS' FEES AND EXPENSES TO PLAINTIFFS' LEAD COUNSEL

18

Defendants.

19

20

21

The Court has considered the parties' jointly-submitted Stipulated Motion For An Award 0

22 Reasonable Attorneys' Fees And Expenses. The Court deems this motion to be suitable for

23 decision without oral argument, as permitted by Rule 23(h)(3) of the Federal Rules of Civil

24 Procedure. The Court has issued separate findings of fact and conclusions of law and GRANTS tht

25 motion. It is hereby ORDERED and ADJUDGED that:

26

(1) Having considered the objections of class members regarding attorney's fees received

27 after notice under Rule 23(h)(2) of the Federal Rules of Civil Procedure, the Court deems the

28 objections to be groundless.

J J J C)

Case 2:94-cv-00671-LKK-GGH Document 1119 Filed 09/17/2004 Page 2 of 5

1

(2) Reasonable attorneys' fees and expenses are awarded to Plaintiffs' Lead Counsel,

2 Bingham McCutchen LLP, Rosen Bien & Asaro and the Prison Law Office in the aggregate amoun

3 of $6.5 million including principal and interest from March 9, 2004 at the federal rate under 28

4 U.S.C. § 1961 as of the date this order is entered.

5

(3) Defendants shall pay the full amount of$6.5 million to Plaintiffs' Lead Counsel no late

6 than November 15, 2004. On any amount unpaid after November 15,2004, interest shall accrue at

7 the prime rate as determined by the Bank of America in San Francisco, as of November 15, 2004.

8 Payment shall be made by check to ROSEN BIEN & ASARO LLP.

9

(4) This order is without prejudice to the separate claim for reasonable attorneys' fees

10 and expenses of earlier lead counsel for the class, which has not yet been resolved. (See StipulatiOl

11 and Order Regarding Motion for Reasonable Attorneys' Fees and Expenses, Clerk's Docket No.

12 1066.)

13

14

IT IS SO ORDERED.

15
~!tQ~ i 16 DATED: 17
18
19

The Hono ble Lawrence Chief Judge eritus United States District Court

20

21

22

23

24

25

26

27

28
[PROPOSED] ORDER AND JUDGMENT AWARDING REASONABLE ATTORNEYS' FEES AND EXPENSES TO PLAINTIFFS' LEAD COUNSEL

-1- Case No. Civ. S-94-0671 LKKlGGH

Case 2:94-cv-00671-LKK-GGH Document 1119 Filed 09/17/2004 Page 3 of 5

1

PROOF OF SERVICE

2

I, the undersigned, certify and declare that I am over the

3 age of 18 years, employed in the City and County of San
4 Francisco, California, and not a party to the within action.
5
My business address is 155 Montgomery Street, 8th floor,
6
San Francisco, California 94104. On the date specified below, I
7
served a true copy of the following document(s):
8

9
[PROPOSED] ORDER AND JUDGMENT AWARDING REASONABLE

10

ATTORNEYS' FEES AND EXPENSES TO PLAINTIFFS' LEAD COUNSEL

11 on the parties in said action by causing same to be

12 delivered in the manner listed below:

13

By Federal Express

14

Maya Manian

Deputy Attorney General

15

Office of the California Attorney General

455 Golden Gate Avenue, Suite 11000

16

San Francisco, CA 94102-7004

17

18

I declare under penalty of perjury that the foregoing is

19 true and correct. Executed this 10th day of September, 2004, at

20 San Francisco, California.

21

22

Kim Le

23

24

25

26

27

28

Case 2:94-cv-00671-LKK-GGH Document 1119 Filed 09/17/2004
United States District Court for the
Eastern District of California September 17, 2004

Page 4 of 5 mdk

* * CERTIFICATE OF SERVICE * *

2:94-cv-00671

Valdivias v.
Schwarzenegger

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Eastern District of California.
That on September 17, 2004, I SERVED a true and correct copy(ies} of the attached, by placing said copy(ies} in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office, or, pursuant to prior authorization by counsel, via facsimile.

Michael W Bien Rosen Bien and Asaro 155 Montgomery Street Eighth Floor San Francisco, CA 94104
Stephen J Perrello Jr Law Office of Stephen J Perrello POBox 880738 San Diego, CA 92168
Alexander L Landon Law Offices of Alex Landon 2442 Fourth Avenue San Diego, CA 92101
Karen Kennard Bingham McCutchen LLP Three Embarcadero Center Suite 1800 San Francisco, CA 94111
Donald Specter Prison Law Office General Delivery San Quentin, CA 94964

AR/LKK

Case 2:94-cv-00671-LKK-GGH Document 1119
Maya Manian California Attorney General's Office 455 Golden Gate Avenue Suite 11000 San Francisco, CA 94102-7004

Filed 09/17/2004

Page 5 of 5

Benjamin Laurence Pavone Law Office of Benjamin Pavone 7676 Hazard Center Drive Fifth Floor San Diego, CA 92108-4503

Erika C Aljens Attorney General's Office for the State of California PO Box 944255 1300 I Street Suite 125 Sacramento, CA 94244-2550

John T Philipsborn Law Offices of John T Philipsborn 507 Polk Street Suite 250 San Francisco, CA 94102

Kristen A Palumbo Bingham McCutchen LLP
Three Embarcadero Center San Francisco, CA 94111-4067

Peter D Nussbaum Altshuler Berzon Nussbaum Rubin and Demain 177 Post Street Suite 300 San Francisco, CA 94108

Mark F Adams San Diego Criminal Defense Bar Association 962 Fifth Avenue Suite 214 San Diego, CA 92101

Michael J McCabe Criminal Defense Lawyers Club of San Diego 2442 Fourth Avenue San Diego, CA 92101

Jack L. Wagner, Clerk

 
 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

JERRY VALDIVIA, et al., Plaintiffs, vs.
EDMUND G. BROWN, JR., et al., Defendants.
_____________________________________/

No. CIV S-94-671 LKK/GGH

THIRTEENTH REPORT OF THE SPECIAL MASTER ON THE STATUS OF
CONDITIONS OF THE REMEDIAL ORDER
Background On May 2, 1994, the lawsuit now known as Valdivia vs. Brown was filed. On July 23, 2003, the Court ordered the Defendants to subm it a remedial plan consistent with the rights provided by Morrissey v. Br ewer. The Stipulated Order for Perm anent Injunctive Relief (“Perm anent Injunction”) entered on March 8, 2004 m emorialized the ordered plan. In Decem ber 2005 and January 2006, the Office of t he Special Master was established. The Mastership has filed 12 prio r reports in this ac tion, noting progress and deficiencies in compliance with this Court’s orders.

Issues requiring further court orders to rem edy – resulting either from the Master’s reports, Plaintif fs’ motions, or th e parties requesting dis pute resolution through a fact-finding hearing – were:
 remedial sanctions (June 2005 and April 2007)  improvements to Defendants’ inform ation system (Nove mber 2006 and
December 2010)  establishment of internal oversight mechanisms (November 2006)  due process for parolees who appear too m entally ill to participa te in
revocation proceedings (January 2008)  preserving confrontation rights consis tent with curren t cas e law (Ma rch
2008)  timely access to inpatient psych iatric hospitalization, and psychiatric
evaluation pursuant to California We lfare and Institutions Code § 5150 (August 2008)
Since entry of the Per manent Injunction, th ere have also been orders concerning designating information as confidential; parolee attorney access to information in clients’ field files, witness contact inform ation, and m ental h ealth inform ation; interstate parolees; and civil addicts. In January 2012, af ter interpreting the constitutionality of the Victims’ Rights and Protection Act of 2008 (“ Proposition 9”), this Court am ended the timeframe for revocatio n hearings to 45 days; the rem aining issues in the Court’s order have been appealed and the litigation process is ongoing.
The Special Master submits the following report assessing the status of the State’s compliance with this Court’s ord ers. The Cour t has allowed two extensions of the date for f iling the Report. For the ins tant repo rt, the 13 th R ound covers activities from February through October 2012. W here data is employed, it is data the Special Master
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received during that period, commonly covering January 1 through June 30, 2012. 1 This report frequently reflects on the changes the State has made over time to reach the current level of performance.
Realignment Realignment – the law whose term s currently most relevant to paro le revocation are the shifting of a substant ial portion of m en and women from State parole sup ervision to “Post-Release Community Supervision,” and changing the location and length of terms for parole revocation -- has been in effect for a year and pro cedures have been integrated into Valdivia operations. Paroles Division has shifted so that all notice service takes place in county jails rather than CDCR. The Board has made the necessary adjustm ents for all hearings to take place in jails. Both divisions have responded to the need to provide more proceedings in the com munity when jails release arrested parolees before the Valdivia process is complete. Defendants have worked with jail sta ff to im prove and align comm unication about Board orders and their m eaning for lengt h of ti me in c ustody; reportedly different interpretations arise periodically and it appears that Defendants’ staff continue to address them. Defe ndants have reorgani zed the ir tra cking sys tems in p art to addres s th e new realities. As significant numbers of former parolees leave the sup ervision caseload, layoffs have begun in Paroles Division and the Bo ard has elim inated vacant positions. Som e Board revocation centers and parole units ha ve closed and consolidated. W ith these changes com e reorganized caseloads and or ientation to new locations and ways of operating.
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Defendants appear to have m anaged these massive changes very well, responding to waves of change requiring new initiativ es, new procedures, new thinking. Many have risen to the challenge. In addition to ge nerating all that is newly required, Valdivia processes continue uninterrupted and at high performance levels.
More change is on the horizon, the largest of which is preparing for the cessation of revocation hearings by the Board and the interaction between the Paroles Division and county judicial systems that will assume those duties. Paroles Division is deeply involved in that planning and design, along with other du ties – such as Discha rge Reviews -- that accompanied Realignment and other legislative changes for the division.
Approach to Assessing Status of Compliance The Valdivia remedy was designed as a whole; it is th e collective functioning of its parts that creates due process. As such, the Special Master does not see a failure at one step as equivalent to a violati on of due process. Rather, it is the combination of steps that occurred for a parolee that determ ines wh ether he receive d the process that was due. Critical to assessing failure at one step in the process is whether ‘harm was done’ in the totality to the parolee. As the Offi ce of the Special Master ha s said throughout its tenure, the parole revocation system must also be assessed in this holistic manner. Each of the steps of the Valdivia rem edy m ust function substa ntially as they were designed; it is necess ary to know the status of the com ponent parts in or der to reach conclusions about the parole revocation s ystem’s compliance. T hen asse ssing system complia nce requires weighing and balancing. A uniform com pliance percen tage is neith er necessary nor appropriate.
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Different components may reach d ifferent co mpliance lev els and still su pport a find ing that the system is in subs tantial compliance. T he analysis for com pliance should center on:
 Does the sy stem protect the parolees ’ ability to prepare and present a defense, to face only adverse evidence that is fairly in troduced, and to have hearings expeditiously?
 If there are f ailures in any Valdivia requirements, is fairness and timeliness still protected? This likely involves such questions as: were any of the next steps impacted? Does harm result? Do later steps in the process correct errors or is a remedy provided?
Each of these question s m ust be answered in the aggreg ate; while individual cases illustrate any analysis points, it is th e overarching trends in f airness, harm and timeliness that matter in a case reforming a system.
In 2012, Defendants presented a detailed cas e arguing for a finding of substantial compliance for the parole re vocation system . Staff invest ed countless hours analyzing each point of the Valdivia remedy. They gathered data dem onstrating practice, aggregating it over a several-year period, and crafted extensive arguments employing this data.
Plaintiffs prepared a th orough resp onse, accep ting som e of the arguments for substantial com pliance on specified require ments, challenging evidence or otherwise seeking the basis for som e of Defe ndants’ conclusions, and vigorously opposing som e arguments and the request for an overall finding of substantial compliance.
The Special Master has em ployed the te rm “s ubstantial c ompliance” to m ean “highly effective consistently over tim e.” He is aware tha t case law has interpr eted “substantial compliance” in rem edial class actions in m ultiple ways and that the parties are in dispute as to whether and how that legal standard m ay apply in this action. This
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report continues to apply the Special Master’s functional definition and does not intend to suggest a legal interpretation.
Defendants reached a m ajor milestone wh en the Court first found substantial compliance on significant com ponents of the Valdivia rem edy i n January 2010. Defendants have m ade steady progress in dem onstrating areas of com pliance, with the Court finding substantial compliance on furthe r requirements in each o f the subseq uent Rounds. If the Court adopts the recomm endations of this report, Defendants will have achieved substantial compliance on 35 of the 44 requirem ents delineated in th is Court’s orders.2 This is a m ajor accom plishment reflecting the sk ill and dedication of staff. In briefest summ ary, the Specia l Mas ter de termines the f ollowing to be the s tatus o f the Valdivia remedy:

Within revocation process

Probable cause determination (11(b)(ii))3 Notice of rights and charges (11(b)(iii))
ADA form, determination Notice of Rights Violation report Unit Supervisor review Transmitting violation packet Parole Administrator review Return to Custody Assessment Appoint counsel, expedited hearing (11(b)(i)) ADA information to attorneys (13) Confidential information (15, additional order) Files available to attorneys (16, additional order) Attorney guidelines (17) Probable cause hearing (11(d))

substantial compliance
substantial compliance
substantial compliance substantial compliance substantial compliance substantial compliance substantial compliance substantial compliance substantial compliance
substantial compliance substantial compliance
substantial compliance
substantial compliance substantial compliance, except timeliness

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Parolees may present evidence at substantial compliance

probable cause hearing (22)

No increase from RTCA substantia

l compliance

Witness lists

substantial compliance

Revocation hearing (11(b)(iv), 23) partial

Witnesses on equal terms (21)

substantial compliance

Confrontation rights

partial

(24, additional order)

Disclosing adverse evidence (14) substantial compliance

Within 50 miles

substantial compliance

Full range of dispositions substantia

l compliance

Parolee waivers

substantial compliance

Attorney continuances without parolee substantial compliance

consent

Revocation extension (31(b)) substantia

l compliance

Remedial Sanctions

ICDTP

substantial compliance

Electronic monitoring

substantial compliance

Supervised environments, outpatient substantial compliance

Mentally ill parolees (additional order) partial

Effective communication (18)

partial

ADA accommodations

partial

Simplified and translated forms (19) substantial compliance

Hearing tapes (20)

partial

Supportive systems

Meet and confer (10, 26) substantial Policies (11(a), (e)) Facilities (11(c)) Staffing (V) Plaintiffs’ monitoring (25) Individual concerns (27) substantia Information systems (additional order) Internal oversight (additional order)

compliance substantial compliance substantial compliance substantial compliance substantial compliance
l compliance partial substantial compliance

The basis for the new findings of substantial compliance, and discussion of the status of other requirements, follows.

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Information System4

Systems

Defendants have tak en extrao rdinary and effective m easures to addres s

information system issues tha t previous ly g ave the im pression of inaccur ate and

incomplete com pliance reporting. Most anti cipated upgrade were completed and the

result supports a compliance picture in which the Court can have confidence. The system

also provides needed infor mation for m anagement reports that Defendants can use to

sustain progress achieved to date.

Staff and c ontractors rede signed the reporting logic so that it captures large

populations previously absent from timeliness reporting; this addressed both the inability

to show tim eliness for those populations and the concern that som e might be falling

through the cracks. Open cases are included on aggregate reports with an indication of

whether they are tim ely to date. The Mastership understand s that all special populations

are now measured according to their unique tim eframes and included in aggregate timeliness numbers;5 this addresses populations incorre ctly appearing late, and requiring

laborious hand calculations to reach accurate conclusions.

Once the ne w logic was written, s taff spent m onths comparing sources to verif y

that summary reports accurately reflected th e detail underlying them , that detail reports

accurately reflected th e hearing reco rds or other sources underly ing them, that the logic

was including all relevant cases, an d that cal culations were operating correctly. From all

current appearances, this paid off in highly consistent, effective reporting for the Board’s

revocation proceeding steps.

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Staff also devoted attention to verifyi ng the accuracy of m anually entered parole hold dates, a data po int that af fects all tim eframes in a cas e. Staff devised a com parison method that sought to identify any discrepancie s between the date a case was initiated in the database and the hold date . They identified only 151 such discrepancies for a severalyear p eriod – an ex tremely lo w ra te -- inve stigated them , and m ade corrections where possible.
The Mastership relies on this rep ort on the figures concerning volum e of revocation action s and tim eliness of Boar d a ctivity. In a few instances, a few key functions lim it the ability to dem onstrate com pliance. The reports cap turing postponements have been designed but had not been validated as of this writing, so tim e to hea ring f igures ar e p artial at th is tim e. Reports of the P arole Divis ion’s s teps in the revocation process appear to require more attention before they are operating effectively.
These im provements are an im portant step forward. They allow Defendants to demonstrate the good practice they know to be occurring in the field so that the Court is better able to make an accurate assessment of current practice.
Oversight Defendants have enhanced their oversight by instituting regular meetings between
Board supervisory staff and CalP AP regional representatives. 6 These m eetings seek to ensure smooth hearing operations and to surface and address concerns ab out procedures, policies, and hearing practice. This is an important means of oversight and demonstration of Defendants’ willingness to identify and address breakdowns.
Defendants also enhanced Decision Review procedur es in recent Rounds. The particulars have been described in prev ious repor ts of the Special M aster. The
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enhancements are a sig nificant im provement to due process. In the initial ye ars of Valdivia implem entation, Paroles Division staff or attorneys could s ometimes get a decision reversed or am ended through an ad hoc con tact with h earing officers’ supervisors. Defendants addressed this through setting up a centrali zed process adhering to regulato ry standard s; m ore recen t revisi ons m ade the process m ore transparen t and strengthened its rigorousness. Defendants now st rongly look to attorneys to m ake use of this system as a m eans to pr otect parolees’ rights and to ca ll process breakdowns to the attention of the State.7
Additionally, this Court ordered, in N ovember 2006, the State to institute and maintain th e inf rastructure ne eded f or self -monitoring. As noted in Def endants’ Compliance Assessment Report of July 2012, De fendants responded to the Court’s Order of 2006 and developed a staff group (now cal led the Office of Audits and Court Compliance) to provide external monitoring of the Board of Parole Hearings and the Paroles Division.8 Permanent full time positions were created and most have been staffed. The organization of the group and the num ber of staff members has changed over time in response to changes in case progress, legislation and the dire fiscal crisis of the state.
The 2006 Court Order required “staffing and re sources sufficient to conduct site visits, asse ssments and quality improvem ent efforts at the Decentra lized Revoc ation Units, contracted jail facil ities, contracted legal servi ces for parolees, CDCR and nonCDCR f acilities provid ing rem edial sanction s and other f acilities and servic es f alling under the auspi ces of the Valdivia remedies.”9 Defendants have m et the requirem ents of the Court’s Order.
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The external m onitoring team has provided credible analysis and review of

Paroles Division and Board of Parole Hearings Valdivia implementation efforts. The unit

has conducted tours of revocation units, contracted jail facilities as well as contracted and

CDCR facilities that provide remedial sanction programs. The focus, quantity and nature

of physical tours have changed over the course of the case. For example, as the number of

revocation units has diminished as a result of Realignm ent, county jails are now targeted

for a greater num ber of tours. The significan t reduction in the paro lee population and the

impending transfer of functions to the counties will likely result in more changes in focus

and staffing.

Physical tours were greatly im proved by th e developm ent of an audit tool that Plaintiffs were provided an opportunity to critique in previous Rounds. 10 The num ber of

physical tours has been decreased due to th e development of m anagement reports and a

data base (of independent data collection from sample revocation packets) that, combined

with file and hearing tape review, allow for “paper” tour s to be conducted. In short, the

monitoring unit has found several ways to work smarter and to save tim e and m oney in

doing so. T hat said, the fiscal crisis travel ban resulted in the unit only com pleting one physical tour in the first six m onths of 2012. 11 The unit staf f is now in the process of

visiting each region of the state and intends to produce a statewide progress report by the end of 2012.12

The unit has positions for one deputy co mmissioner, one paro le agen t III, two

parole service analysts and two correc position recently became vacant.13

tional counselors. The deputy commissioner

Since 2008, the unit has issued 18 tour reports, each with a corrective action plan.

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In addition, the self -monitoring te am has subm itted 11 com pliance r eports ass essing statewide compliance with the requirements of the Injunction and related Court orders.14
Defendants are in substantial co mpliance with the req uirement f or intern al oversight in this Cour t’s Order implem enting the recommendations of the S pecial Master’s first report.
Permanent Injunction and Subsequent Orders The Valdivia remedy consists of the following steps in a revocation process:  Unit Supervisor and Parole Agent confer concerning probable cause and remedial
sanctions  Notice of rights and charges served  Violation report  Unit Supervisor review  Parole Administrator review  Return to Custody Assessment  Probable Cause Hearing  Revocation Hearing The Perm anent Injunc tion spe cifies cer tain f eatures of th ose steps a s requ irements. Additionally, it mandates functions such as m onitoring, policies, facilities and the like to oversee and support the ability to carry out the revocation process steps.
It is indispu table th at Morrissey v. Brewer is the touchstone f or constitu tional parole revocation system s. From e stablished law, it distills the key components of due process in this contex t. The Valdivia parties and Special M aster draw on Morrissey in agreeing th at th e notice of rights and charg es, the p robable cau se h earing, and the revocation hearing – and certain core functions and princip les within them -- are most critical to due process in California’s parole revocation system.
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Probable Cause Determination The Permanent Injunction provides:
The parole of ficer and superviso r will c onfer within 48 h ours to de termine if probable cause exists to continue a hold.
The Special Master will not addres s the parties’ issue of whether the probable cause determination step is a fundam ental due process right. 15 The Special Mas ter does agree that a supervisory review of the determination of probable cause is a good management practice that is commonly used in this type of situation to ensure that parole officers are not using detention unnecessarily. Supervisory review is typically used to ensure adh erence to policy; in th is case, en suring there is probable cause to continue a parole hold. The cr itical issu e bef ore th e cour t is wheth er this m echanism serves the ultimate purpose of ensuring tha t parole of ficers have su fficient pro bable cause to continue a hold. How the mechanism to ensure this is devised is of less consequence than achieving the outcome.
Plaintiffs have argued it is essential that the supe rvisor and parole of ficer meet in real-time and that can be in person, by phone, video or computer conferencing to discuss whether probable cause is sufficien t to wa rrant the con tinuation of a parole hold. 16 The Special Master has also question ed whether the notion of “confer” requires an in-person meeting.17 While the word confer i mplies disc ussion, it does not require an in-person discussion.18 The idea th at the b est way to en sure unwarranted detention at this s tep is through an in-person meeting is not borne out in practice.
More and more organizations are using el ectronic means not just to com municate but to reach agreement and to m ake decisions.19 High-cost in -person meetings are being
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avoided not just by multi-national corpora tions but also by government and service providers of all sorts. In-person meetings are used sparin gly and for those situations where relationship-building and/or complex negotiations are needed. Issues that are more routine in n ature and w here the ind ividuals inv olved know each other well are often resolved through less costly op tions. In the case of a review for probable cause sufficient to warrant a parole hold , this is a p ractice that a parole supervisor engages in daily with subordinates that he or she knows well. There is little if anything that indicates the review is enhanced by face-to-face contact. Indeed the most common practice for a circumstance such as this is indepen dent review by the supervisor with the option for discussion in person or through electronic m eans if the su pervisor disagrees w ith the subordinates recommendation or the subordinate disagrees with the supervisor’s decision.20
Upon request by the Special Master, De fendants analyzed the Probable Cause Determination step to determ ine if there is data that supports their supposition that supervisors are actively engage d in the review of their sub ordinates’ p arole holds. The Special Master posited that if this is the ca se, there should be some parole holds that are dropped after review by the paro le supervisor. The Master re quested that Defendants use the new rep orting m odel to elim inate som e of the con cerns rega rding the va lidity and reliability of the old reporting system’s data.
Defendants used the reports “PCD Resu lts Summary” and “PCD Referral Step Results Summary” to analyze wheth er the addi tional supervisory revi ew resulted in any decrease in holds. “Between January 1, 2012 and June 30, 2012, there were 67,758 Probable Cause Determ ination actions entered into the revocation database. Of those, probable cause was found on at least one charge in 66,662 actions (98.38%). In 1,096
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actions, or 1.62 percent, probable cause was not found and the case was dismissed.”21 While low in num bers, the dism issal of cases is eviden ce that supervis ors are
engaged in the review of probable cause at this step. Other than timeliness, the parties did not stipulate to any m easure, m ethodology or definition of what constitutes th e des ired outcome of the conferring betw een supervisor and parole officer. The Specia l M aster assumes that both parties have an interest in ensuring there is sufficient probable cause to warrant a parole hold. Presum ably at this st ep there either is or is not probable cause. There should not be an addition of cases so the only logical m easure for this step would be a declin e in cases. That declin e, while ar guably low, is evidence of a supervisory review. The m ethod us ed for this review shoul d be whatever one is most effective to accomplish the goal.
With one e xception, tim eliness has rem ained in the high 80 th percentile since 2009.22 While not as high as other steps, the consistently high rate of timeliness combined with the evidence of review of probable caus e indicate that Defendants are in substantial compliance.
Notice of rights and charges The Permanent Injunction requires: If the hold is continu ed, the pa rolee will be served actual notice of rights, with a factual summary and written notice of rights, within 3 business days. Defendants have had a system in place long- term to provide parolees with notice
of their rights and charges. Data has in dicated that compliance with the sp ecified timeframe was at 90 % early in th e Special Master’s te nure and re mained consisten t through the Rounds, with 91% of service timely in this Round. 23 In recent Rounds,
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however, Defendants have dem onstrated that a significant am ount of the rem aining service was initiated timely but staff were una ble to access the paro lees; in th is Round, data shows that this oc curred for 8 % of servic e.24 In prev ious analyses, som e of the initially unsuccessful service was c ompleted timely nevertheless. In other instances, and with som e other late cases, service was com pleted soon af ter the deadline, and a very small percentage were very late.25 It remains likely that these practices continue, but time to com pletion num bers were not available. Defendants report that 2.37% of parolees – 527 persons – proceeded to hearing without having been served. 26 Myriad changes in locations, procedures, and staffi ng attendant to R ealignment carry the risk of significant complications for notice service.
Defendants have cons istently included the do cument entitled Notice of Rights in their service throughout implementation. There have been no reports of deficiencies as to this docum ent during this Round, and Defend ants’ perform ance has been exem plary long-term.27 The Mas tership does n ot recall an y issues raised on-po int in m onitoring reports or the Mastership’s own observations ov er time. This aspect of notice s ervice is treated as a separa te f unction in th e Valdivia Re medial Plan and, as such, it can be considered in substantial compliance.
As to the required sum mary of charges, th e Special Mas ter has written, “The parties have recognized, long-term , that there are significant num bers of Charge Reports that do not provide a “short factual summary” sufficient to communicate the basis for the charges. Addition ally, there is som e work to be done to ensure that agents includ e all charges in the original notice that they know, or had available from file information, as of the time the notice is written.”28
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No systemic analysis of this issue h as been pres ented to the Special Ma ster. As one means of analysis, the Special Master revi ewed all of the parties’ monitoring reports from the first six m onths of 2012 -- 18 Plain tiffs’ monitoring reports and one report from Defendants -- to attem pt to understand the stat us of the quality of the short factual summaries and the addition of charges after th e notice of rights is served. 29 There are many limitations in attempting to use monitoring reports to establish trend data that make the conclusions reached here only gross estimates of compliance and highly subjective.30
Of 18 Plaintiffs’ m onitoring reports reviewed, the average num ber of cases reviewed per m onitoring repo rt is 35. 31 Plain tiffs contend the factual s ummaries were always sufficient in eight m onitoring reports and in seven monitoring reports there were one to two f actual su mmaries th at are a lleged to be in sufficient. I n two m onitoring reports, there were th ree factual summaries alleg ed to be insuf ficient and in one monitoring report, there is alle ged to be four inadequate f actual summaries. The Special Master did not always agree with the allegation of an insufficient factual summary. In six monitoring reports the Special Master found some of the allegations of insuffi cient factual summaries to be unfounded.32 The one Defendants’ report indicates that out of 40 cases reviewed, 14 had an insufficient factual summary.
The only conclusion th e Special Master can reach from the r eview of m onitoring reports is that monitoring reports are not a good measure of the magnitude of the problem and that the determination of what constitutes an adequate factual summary is subjective.
The Special Master als o inves tigated where parolees ’ coun sel was exp eriencing problems wi th the factu al summary.33 The Executive Director of CalPAP indica ted that the CalPAP atto rneys w ho repres ent parolees indicate that for the m ost part the factual
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summaries are sufficient. W hile not system ic, there are tim es where there is only summary infor mation. CalPAP attorneys note it is not som ething that parolees have complained about.
On balance it appears that the short factual su mmaries are sufficient. That said, Defendants should ensure unit supervisors wo rk with those parole agents who do not provide adequate detail to do so.
The status of the question of added char ges is also a d isputed issue between the parties. Out of 19 m onitoring reports reviewed, five indica te no charg es are add ed after the original notice. All other reports vary fr om as low as 13% to as high as 46% of the cases have charges added after the o riginal notice. Some monitors do an excellent job of identifying when charges are technical in nature and should have been known by the agent of record or are crim inal charges but appear to be clearly known at the tim e of the original no tice. Other tim es monitors ar e cl ear they can ’t be sure if the new charges should have been know n. In m any cases the Special Master did not agree with the allegations m ade by monitors that charges should have been known at the tim e of the original notice of charges.34
The Special Master agrees that technical violations should be addressed in the initial notice of rights. The agen t of record or the unit supervis or imposes technical violations. There is no reason that they are not known at the tim e of notice.35 Defendants conducted a very useful study on this point, which is m uch m ore comprehensive than other efforts. It found that, about 25% of the time, technical violations are added after the initial notic e of charges no m atter who the ar resting agen cy is. 36 This study indicates
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there is still work to be done to eliminate the addition of technical charges after the initial notice of charges.
Criminal charges are another matter. Defendants estimate that approximately 50% of the tim e local law enforcem ent alone is the arresting agency. 37 In these cas es Defendants rely on the quality and quantity of inform ation provided by the arresting agency. The ability of Defendants to get accurate and tim ely inform ation depends on many f actors such the size of the jurisdic tion, the na ture of relation ships be tween agencies and other factors that Defendants ha ve little control ove r. In m any cases, accurate information is not known at the time of the initial notice of charges.
Again the Special Master i nquired of CalPAP what th e experience is of the attorneys representing parolees. Overall, th e staff attorneys agree th at the notice of charges typically provides sufficient notice of the charges to the parolee and his attorney. Two of the 10 staff attorneys noted, however, that charges are added o r changed after initial service of the notice of charges, but the changes do not affect a lib erty interest, as they are not the only charges keeping a client in custody. The ten staff attorneys supervise a total of 160 attorneys.
In add ition to prov iding the righ t d ocuments, contain ing th e r ight inf ormation, according to the requ ired tim eframe, the part ies have been concerned with whether the notices are effectively comm unicated. Again, the Plaintiffs ’ and Defendants’ m onitoring reports serve as a partial sour ce of infor mation on point. The Special Master’s review of reports for the first six months of 2012 indicat es that notice agents are doing a good job of ensuring that they understand if there are any impediments to effective communication with a parolee and of rem edying any problem s during the notice. 38 Eleven of nineteen
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monitoring reports ind icate no pro blems with ef fective co mmunication by the n otice agent. Five reports indicate one problem with the remainder being less th an three. Many of the reports comm ented on the thorough and detailed approach of notice agents to ensuring that the parolee understands what is being communicated. This review is only of the actual serve of the notice and does not include problem s in docum enting any of the impediments to effective communication.
Plaintiffs have also repeatedly raised concerns about noisy and public service locations and their potential for affecting effective communication. For detail, pleas e see previous reports of the S pecial Master. The Sp ecial Master agrees that one site, the Los Angeles County Jail, location for notice of rights is so noisy that it makes communicating with paro lees dif ficult and tha t co nfidentiality m ay be occasiona lly c ompromised. The Defendants worked with the jail to rem edy the situation but the project was not completed. In light of Realignm ent and th e upcom ing removal of the Board from the revocation process, it is possible that space th at was used for the Board could be used to remedy this situation.
When considering the multiple iss ues in th e notice of rights, the Spe cial Master finds this step in the revocation process to be in substantial compliance.

Violation Report

The

Valdivia Remedial Plan calls for a violation report to be completed within six

working days after the hold. In previous Rounds, the S pecial Master reviewed the

subsequent process step, in which the Unit Supervisor reviews and determ ines whether

the repo rt is accurate an d com plete.The dead line for the su pervisor rev iew is one day

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after th e report is d ue. There is a s ubsequent, additional review by a Parole

Administrator, who can return any incomplete reports. In 2011, the Special Master found,

based on Defendants’ analysis, that the

Unit Superv isor’s r equirement had been

completed at a high rate of timeliness for years.39 For this to occur, the v iolation report

must have been com pleted tim ely or less th an one day late. Additionally, the very low

rate of incom plete reports returned in th e second supervisory review suggests that

violation reports are adequate at th e tim e they are forward ed to the Board and parolee

attorneys.

It is therefore reasonabl e to conclude that the Vi olation Report step is in

substantial compliance and the Special Master recommends such a finding.

Unit Supervisor and Parole Administrator reviews, Return to Custody Assessment The Unit Superviso r and the Parole Adm inistrator e ach r eviews the revoca tion
packet for com pleteness and dem onstrating pr obable cau se, and they consider remedial sanctions placements or recomm endations. The hearing officer conducting the Return to Custody Assessm ent considers probable cause and rem edial sanctions, and m akes an offer of the length of a revocation term or other disposition.
Each of these steps has previously been found in substantial compliance.
Appointing counsel Defendants are obligated to ensure counsel is provided to all parolees on or before
the sixth business day after the parolee is served notice.40 The Special Master noted in his 11th report that Defendants have “consistently appointed attorneys to parolees facing revocation at least since 2006. It has never com e to the Spec ial Master’s attention that
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any appointment has been overlooked during that tim e.”41 The one outstanding issue in the appointment of counsel is the lack of timeliness in two locations.42
The Special Master found Defendants to be in substantial compliance with tim ely appointment of counsel at all locations ex cept Richard J. Donovan Correctional Facility and California Institution for Men. 43 These locations have experien ced periodic spikes in the num ber of cases n ot tim ely in th e appointm ent of counsel. In his 12 th r eport, th e Special Master again noted that CalPAP data indicated the situation remains unchanged.44 That repo rt reviewed d ata th rough Decem ber of 2011. The data for 20 12 indicates the situation at both locations has been remedied.
Richard J. Donovan had a rate of 22% of cases not in compliance in January of 2012. The rate dropped to less than one pe rcent in February of 2012 and has never exceeded 2% through September of 2013.45 The California Institution for Men continued to experience problem s with tim ely appoint ment of attorneys through March of 2012. The rate d ropped from 13% in March to 2 % in April and has n ever ex ceeded three percent through Septembe r of 2012. The Special Master fi nds Defendants to now be in compliance with appointm ent of c ounsel for all locations and thus is in substantial compliance with the relevant Permanent Injunction provision.
The Permanent Injunction, at ¶13, also re quires that, “at the tim e of appointment, counsel appointed to represent parolees who have difficulty in communicating or participating in revocation proceedings, shall be inform ed of the natu re of the difficulty” and it goes on to indicate several exam ple conditions. This provision also requires that, “the appointment shall allow counsel adequate time to represent the parolee properly at each stage of the proceeding.” The mechanism for conveying this information is forms in
22

the revocation packet reflecting a review of conditions requi ring accomm odation or effective communication; the form is completed by the age nt serving the notice of rights who has reviewed the electron ic disability database an d physical files, and asked disability questions and m ade observations during service. W here a relevant condition has been id entified, it will be named on that f orm and the source of that inf ormation is also to be included in the packet.
Throughout Valdivia implem entation, CalPAP has shown a s mall num ber of packets arriving without the ADA review form (2% to 5%) and a large percentage of source docum ents m issing for the subset of parolees with re levant c onditions ( 20% to 27% m issing).46 These figures rem ain true today. 47 On the other hand, attorneys can retrieve inf ormation f rom the disability tr acking system and the CalPAP adm inistration believes th at atto rneys receive infor mation sufficiently identifying parolees with communication and participation barriers. Plaint iffs question whether, in the absence of disabilities expertise, attorneys would know what accommodations are effective and what additional information might be m issing.48 The Special Master recomm ends a substantial compliance finding on the requirement specified in ¶13.
The Perm anent Injun ction requ ires st andards, guidelines, and training for effective as sistance of state app ointed co unsel in the parole revocation process. Subsequent orders of this Court governed designating info rmation as conf idential, and providing attorneys access to mental health and other private information. This Court has previously issued substantial compliance findings in each of these areas.
In the area of attorney represen tation, Plaintiffs and CalPAP have raised another concern long-term. They object that, in certai n situations – principally having to do with
23

absconding and substance abuse – Defendants invite parolees to sign waivers before they have been appointed counsel. 49 W hile no t a s pecific pro vision of the Perm anent Injunction, there is an argument that this has implications for due process. Because this is not tracked, to the Special Master’s know ledge, and occurs outside the usual Valdivia process and would not necessarily come to the parties’ attention, it is difficult to quantify, or even determine whether it remains a current practice.
Expedited probable cause hearings The Permanent Injunction also calls for: Expedited probable cause he aring upon sufficient offer of proof that there is a complete defense to all charges Defendants created policies, trained staff and created m onitoring capacity for an
expedited probable cause hearing. When appoint ed counsel presents sufficient evidence that there is a com plete defense to all pa role violation charges that are the basis for the parole hold an expedited hearing can be re quested. Defendants indi cate that between January 1, 2009 and March 31, 2012, the Board of Paroles took 265,981 actions at the PCH step. “During this sam e time period, parolees and their appointed counsel requested and received four expedited PCHs based upon sufficient offers of proof.” 50 In only one instance was an appeal made regarding the decision to reject the request for an expedited hearing. The Special Master finds Defendants to be subs tantially com pliant in the creation of a process for an expedited probable cause hearing.
Probable cause hearings
24

When this Court ruled on the con stitutionality of the State’s paro le r evocation system, much of its due process analysis centered on the length of time until parolees had an opportunity to present a defense. At the time, the system’s structure was51:
 Parole staff determined whether there was probable cause to detain  Parolees received notice of their charges approximately seven days after
incarceration  Parolees were offered a custody term without counsel and without presenting a
defense to a decisionmaker  Parolees who wished to defend against the charges commonly were given their
first opportunity after 30 to 45 days in custody, and complications could greatly extend those times. This Court r uled that cr eating a P robable Cause Hearing, on a m uch shorter tim eframe, was an essential component of remedying this situation. Defendants quickly put in place a procedur e that had elem ents of the previous system and the one contemplated by the Court. The parolee and his attorney still receive a custody tim e offer. When they m eet with th e hearing officer, policy calls for (a) the parolee to have an opportunity to be heard and present evidence, (b) the hearing officer to decide whether there is probable cause for each charge, and (c) the paro lee and attorney to decid e whether to accept the origin al, or a negotiated, custody tim e or rem edial sanction offer, or to pro ceed to a revocation hearing. To have rem edied the prev iously problematic system, it is critical that all three functions be carried out. Presenting a defense: Through at least 2009, defense preparati on could be affected by incom plete packets provided to attorneys. Mis sing documents most commonly had to do with ADA accommodations and effectiv e communication, but som etimes attorney packets did not include police reports, viol ation r eports or o ther m aterial of evidentia ry value. 52 Som e improvements were noted as of late 2009, and the Paroles Division continued to address
25

it during certain site visits through early 2011. CalPAP and Defendants have mechanisms

to obtain docum ents that initially are m issing, and reportedly this works well. No recent

information has com e to the Spec ial Maste r’s attention reg arding wheth er the issu e of

incomplete packets has been corrected, though it is reasonable to be lieve that problem s

with missing key evidence might surface.

Importantly, Defendants have greatly re duced “add-ons,” a practice of the first

several years in which cases were added to the hearing calendar the sam e day, or with

only a day’s notice, creating a risk for adequa tely preparing a defens e. Defendants’ staff worked diligently to solve this problem, which now occurs very rarely, if at all.53

There has been a dispute throughout

implementation concerning whether

conducting probable cause hearings by teleph one com promises due process, effective

communication and the ability to present a defense effectively, particularly in the hearing

officer’s ab ility to dete rmine the pa rolee’s v eracity and re morse. Def endants s trongly

assert that the procedu re com ports with due process and is necessary to m anage scarce

resources. F or m ore detail, please see prev ious reports of the Sp ecial Master. Through

most of Valdivia im plementation, this has involved fewer than 1% of probable cause hearings; this rose in 2012, but constitutes less than 2% in the current Round.54

The Permanent Injunction specifically protects parolees’ right to put on a defense,

with this additional requirement:

At probable cause hearings, parolees shall be allowed to present evidence to defend or mitigate against the charges and proposed disposition. Such evidence shall be presented through documentary evidence or the charged parolee's testimony, either or both of which may include hearsay testimony.

Defendants have preserved th is right very well throughout implementation. The Special

Master noted this practice during site observa tions over the years, as did both parties’

26

monitors. C alPAP conf irms that this r ight is co nsistently u pheld. This is an im portant

feature of Defendants’ com pliance with the pr obable cause hearing requ irement, and the

Special Master affirm s that it should be found in substantial compliance as an

independent requirement.

Hearing officers are exp ected to check for jurisdiction in general, but they do not

entertain challenges based on the two m ajor policy changes of recent years. As disc ussed

in previous reports of the Special Mast er, one group was designated in 2010 as “non-

revocable parole”; by policy, hearing officers are not to resolve ques tions of whether the

parolee should not be subject to revocation on this bas is, but are to r efer the parolee to a

grievance process. In 2011, th e law transferred a large gr oup from parole to county

supervision, known as Post-Release Commun ity Supervision. CalPAP reports that

challenges to revocation on this basis – that the parolee was incorrectly classified as

remaining under the Paroles Division superv ision and thus cannot be revoked by the

Board – are som etimes also not handled at probable cause heari ngs. T he hearing goes

forward and the parolee is instructed to take up the challenge afterward or at a revocation hearing.55 Although such a fundam ental issue is very frustrating for a ttorneys, objections

records suggest this situation is extremely rare, affecting far less than 1% of hearings.

Probable cause is ch allenged in a fa irly sm all proportion of hearings, approximately 17% in this Round, accord ing to CalPAP records. 56 There are few very

objections, Decision Reviews or other allegations of bias by hearing officers, sugg esting

that Defendants’ system protects the im portant right of a ne decisionmaker, a right specifically named in Morrissey.57

utral and detached

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Assessing probable cause: In im plementation through 2011, the Special Master and the parties’ monitors observed a subset of hearing officers who routinely did not invite probable cause argument nor expressly m ake probable cause findings. Rather, they fram ed the m eeting as one whose purpose w as to ne gotiate the custody tim e offer. It was never determ ined how many hearing officers conducted proceedings in this fashion. In recen t Rounds, Defendants h ave soli cited concerns on-point in routine meetings with CalPAP offices, and have been told it is not a concern. Presently, CalP AP representatives repor t that this pra ctice occu rs but is not system ic. Fewer than 7% of hearing officers – or a total of six people -- are described by attorneys as frequently failing to ac cept, or take into accoun t, evidence or legal arg ument.58. These sources are useful and, in a sys tem this larg e, m onitoring necessarily captures too few hearing officers and cases from which to d raw sy stemwide conclusions. Since no m onitoring source has presented a system wide look at this practice, the Special Master exam ined a large sample of hearing records to ensure that hearings are serving this critical function.59 Probable cause challeng es are certainly taken in to account on som e occasions, as charges are am ended or dism issed, or the paro lee’s version is discussed, in the hearing records of alm ost half of the challenged cas es. Defendants note that at least one ch arge was dismissed for lack of probable cause in 12% of the hearings in this Round. 60 On the other hand, in the sam ple, the parolee’s actual argum ent is m entioned extremely rarely. Thus, in m ore than half of the challenged cases, one cannot determ ine from the record whether the hearing officer reached a conclu sion based on the State’s docum ents alone, or by weigh ing the S tate’s case an d the parolee’s case. In a substantial num ber,61 th e
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hearing reco rd expres sly asserts no challenge was m ade, which m ay add weight to the concern that such argum ents were not cons idered. Defendants note that no complaints concerning probable ca use ass essment wer e su bmitted to the Sta te’s Decision Review process in a more than three-year period overlapping with this Round.62
Offer of custody time or other outcome: Throughout the Special Master’s and the parties’ m onitoring, observers have noted that, during negotiations, hearing o fficers observe the proscription against increasing the original offer; generally c onsider parolee request s for shorter tim e and alternatives to incarceration; and present the parolee a genuine, uncoerced choice. Indeed, some of these features have been found in substantial com pliance during previous Rounds. CalPAP attorneys have raised on e c oncern about outcom es decisions over the years th at continues tod ay. There is a practice of hearing officers, or their supervisors, closing out pending revocation actions by gran ting credit for time served in the abs ence of a hearing and som etimes without the paro lee’s or attorney’s knowledge. This most commonly occurs when the parolee has b een sentenced to a new prison term . The practice has appeal in term s of efficiency and a limited revocation term. While credit for time served can be seen as a beneficial outco me, it can also have future im pact. The record then contains a good cause finding on th e charges, which adds the tim e in custody to the parole supervision pe riod an d m ay affect percep tions of repetitive violations, amenability to parole su pervision, and eligib ility for alternatives to in carceration.. If the parolee wished to contest these findings but did not have the opportunity, this would
29

cause harm . The freque ncy with which this occurs, and whether parolees are aware of,

and make use of, mechanisms to contest these findings is not known.

Fewer than 10% of parole revocations proceed to revocati on hearing. In those

instances, hearing officers are exp ected to decide whether there is p robable cau se to

continue to detain the parolee pending the revocation hearing.

63 Hearing officers

routinely record boilerplate language for this decision. In a number of cases –

unmeasured at this time – the boilerplate reasoning does not appear related to the charges,

casting dou bt as to whether a gen uine ass essment has occurred. That release pending hearing has only been granted to 177 pa rolees in m ore than three years 64 ma y be

consistent with th at sk eptical v iew. Hearing o fficers do r outinely co llect witn ess lists

from parolees proceeding to revocation hear ing, and the State has pr eviously been found

in substantial compliance on this requirement.

W

ritten record

Fundamental fairness requires that paro lees receive a written record of the

proceedings. As Morrissey puts it:

The hearing officer shall have the duty of making a summary, or digest, of what occurs at the hearing in terms of the responses of the parolee and the substance of the documents or evidence given in support of parole revocation and of the parolee's position. …

the decision maker should state the reasons for his determination and indicate the evidence he relied on … (citing Goldberg v. Kelly)

The Maste rship rev iewed a substan tial s ample of hearing re cords to ass ess com pliance with this ex pected element.65 The res ults as to f actual findings were exc ellent, with 93%

providing some factual basis for the findings on each of the charges.

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As described above, records typically do not include the parolee’s version, with documentation in only a m inority of cases know n to have raised a challenge. Records commonly use a large n umber of abbreviations that may or may not communicate to the parolee and certainly are unlikely to be clea r for a court should the parolee appeal the decision. CalPAP tracking also has noted th e absence of objections in som e he aring records; it is unknown how m any may have occu rred in probable cause hearings. O n the other hand, CalPAP reports that it is extr emely rare f or pa rolees to f ile writs, in part because the maximum revocation term is effectively 90 days and writs would be moot by the time they are heard.
Defendants em ploy routines for providing a copy of the hearing record to the parolee. Often, the parolee recei ves it immediately after the hearing. On other occasions, Defendants’ staf f delive r it to th e p arolee, provide it to jail staff to convey, or send it through jail m ail.66 The Special Master h as not been m ade aware of any reviews to determine whether parolees reli ably receive their copies through the al ternatives taking place ou tside the hearin g room .67 Defendants note that they received on ly eight such complaints in more than three years of Decision Reviews, and that all were denied.68

Tim

eliness

One of the key reasons to add a proba ble cause hearing step to Defendants’

revocation system was to shorten the tim e until parolees have an oppor tunity to be heard on the ch arges.69 For this reason, tim eliness of probabl e cause hearings is particularly

important.

Defendants’ data shows an average of approxim ately 5,615 probable cause hearings per m onth in the first half of 2012. 70 There has been a steady decrease s ince a

31

high in 2007 of m ore than 8,000 pr obable cause hearings per m onth;71 there do es not

appear to have been a large decrease since the implementation of Realignment.

During this Round, timeliness numbers for the system appear to be:

90 % within 13 business days72

4.56%

beyond that time

5% postponed cases, unknown, most likely beyond that time73

It is also the case that, while the systemwide rate of cases shown late is 4.56%, the late cases occur at double that rate, or more, at nearly one-third of the locations.74

Defendants studied p robable cau se tim eliness o ver m ore than a three-y ear span and found figures consistent with the current Round. 75 The Com pliance Assessm ent Report found 95% tim eliness in the first period of the 13 th Round. It found 97%

timeliness in 2011 and 95% in each of the two preceding years, for an overall average of

95%. This analysis includes postponements in the aggregate num bers and m akes the

same assumptions about them that will be described infra.

After Realignm ent, proce dures in most counties a ppear to support the sm ooth

operation of hearings. A few counties – notab ly Fresno, San Joaquin and Shasta, which

collectively involve a substantial num ber of parolees – routinely either book and

immediately release parolees, o r release them before notice service or before probable

cause hearing. As detailed in previous repor ts of the Special Master, the Board, in

response, has designed good, alternate proce sses to m anage these hearings in the

community. The Special Mas ter do es not have inform ation concern ing whether these

very early releases have c ontributed to m aking Defendants’ tim eliness num bers ap pear artificially high.76

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The category of postponed cases contains a mix of: delays for good cause, delays where good cause is disputed, delays at the parolees’ request, rescheduling within a fe w days, and rescheduling after longer periods have passed.
Defendants have applied definitions of good cause to postponem ents, and have captured postponem ent reasons in the revocation database, for several years. The information system tre ats a ll goo d cause ca ses th at we re tim ely when they were postponed as tim ely whether the rescheduled hearing occurs the next day or 30 days hence, for instance. The timeliness where Defendants determine there is not good cause – a very sm all group – is calculated as of the rescheduled hearing. Defendants report that only 15 postponem ents were not for good caus e, accord ing to their definition, wh ich constitutes less than 1% of the 1,824 postponem ents they reported. These reasons and practices have been discussed in detail in previous reports of the Special Master.
The parties disagree as to som e of th e reasons that Defendants define as good cause, including som e that account for a large num ber of postponem ents. They also disagree about whether there should be lim its on how long it takes for a case to return to calendar. The latter dis agreement concerns pos tponements that are not the fault of either Defendants or the parolees (for example, th e county does not trans port the parolee), as well as par olee tim e waivers. Atto rneys typi cally sp ecify the leng th o f tim e they are waiving; Defendants’ position in recent years is that, as in criminal proceedings, waivers mean that parolees are waiving the time limit, not waiving a specified amount of time.
It is d ifficult to de termine the le ngth of time to probable cause hearing that provides due process. Several measures have figured importantly in this action:

10 days

This Court originally ordered Defendants to create a plan to

33

deliver probable cause hearings within this time77

13 business days The timeframe the parties negotiated for the Valdivia Remedial Plan78

20 days

This Court drew upon case law, when asked to determine the length of time due process allows for a “prompt” hearing, and found that 21 days is definitely too long 79

The Mastership reviewed Defendants’ tim eliness report and m any postponement reports and individual hearing records. 80 Bas ed on th is a nalysis, it a ppears that the m ajority of

delayed probable cause heari ngs are held beyond 20 days, wh ether as a postponem ent or recorded as late. 81 W hether good cause excuses hearings beyond 21 days, and whether

there should be time limits for rescheduled hearings, are open questions.

Because the percentag e of ti meliness needed for substan tial com pliance is also

uncertain, the postponem ent questions m ay be pivotal. The Court has not been asked to

rule about an acceptab le timeliness percentage for probable cause hearin gs. At summ ary

judgment, the Court found that 10% of revocation hearings being held beyond an acceptable tim e warranted a rem edy.82 If a s imilar r ationale we re to apply to probable

cause h earings, the 90 % that are certain to be tim ely would be ins ufficient, bu t th e

increase provided by whatever proportion of postponed hearings was determ ined to be

acceptable might prove sufficient. These are all open questions at this time.

It is also of concern that the tim eliness of probable cause hearings appears to be

declining in 2012. In each of four reporting sources, the late cases in August thro ugh

October showed a several percen t increase over the beginning of the year, ending at 7% to 10% late, depending on the source.83

Defendants instituted rem edies during th e Round as an im portant feature toward

making par olees whole when there are rare, but inevitable, breakdowns in the system .

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The State grants day -for-day credit for the am ount of tim e hearings are held late ; there are exceptions, principally for good cause delays. 84 There were 179 parolees whose harm was reduced at this step during this Round. The system showed 1,537 late probable cause actions during that period.85
The Special Master rev iewed a sample of 43 cases where the prob able caus e hearing was held on the 21st day or later; a remedy was granted to nine of them. The 77% who did not receive a rem edy generally fell within one of Defendants’ exceptions – good cause postponements or waivers whose time was exceeded.86

In summary, this is the status of probable cause hearings under Defendants’ system:

Attorney packets missing documents relevant to defense Add-on scheduling Telephonic hearings Parolees may present a defense Jurisdiction—NRP and PRCS challenges not handled in probable cause hearing Probable cause arguments considered
Neutral, unbiased hearing officer Considering alternatives to incarceration Range of dispositions
Time offer does not exceed RTCA
Parolee has an uncoerced choice to go to hearing or accept offer Granting credit for time served without parolee participation Probable cause to detain – language suggests not considered Written record

unknown status, unlikely to be of any substantial size rare, if any <2% Excellent Far <1%
>93% of hearing officers do, per verbal report 46% apparent in written record Excellent previously found in substantial compliance previously found in substantial compliance previously found in substantial compliance Excellent
unknown frequency
unknown frequency
93% show factual basis

35

Timeliness

46% show parolee version missing objections – unknown if any provision: frequently direct; indirect methods not verified 90% known timely 5% postponements

In weighing all of the above, in the Sp ecial Master’s experi ence of this system , there is no reason to believe that an y revocations go forward with no probable cause on any charge. This fundamental and critical purpose is being fulfilled. It is difficult, at best, to discern whether cases proceed with a ny frequency when there are probable cause findings on m ultiple charges, some of which appear uns upported. H ere, the Sp ecial Master m ust r ely h eavily on the opinion of parole es’ a ttorneys; th e Ca lPAP administration is confident that, to the extent this does occur, if at all, fundam ental fairness is s till pres erved in the ou tcomes and in the system ’s operation as a whole. Likewise, any concerns on-point are rare in the parties’ monitoring.
There are certainly so me issues with probable cause hearing practice that are current, or whose past occurrence has not been shown to be remedied. However, the most important f eatures of this step are b eing f ulfilled well. On balance, the Special Ma ster considers th is step to b e in substan tial com pliance. He will recomm end that the Court order this finding except for ongoing attention solely to the questions of timeliness.

Optional Waiver Review Optional waiver review was not a step in th e Perm anent In junction, but is a
procedure allowed under California Code of Re gulations Title 15, Section 2641(b). As described in detail in p revious rep orts of the Special Master, it is a proceeding that
36

operates much like a p robable cause hearing an d takes place after a parolee has waived hearing timeliness because of pending crim inal court charges, and later chooses to return to the revocation process.
After successfully concluding negotiations, Defendants issued a revised procedure in 2010. It which governs the hand ling of these proceedings and describes the timeframe, after receip t of a requ est for hearing (ter med “activatio n”), as “th e next available [probable cause hearing] calendar, 87 This will norm ally occu r within three bus iness days.” If the parolee elects to continue to a revocation hearing, that is to be concluded within 35 d ays, jus t as with oth er r evocation hearings. Defenda nts extended the latter deadline to 45 days pursuant to this Court’s January 2012 order allowing that length of time for revocation hearings.
Defendants initially had no system for tracking optional waiver processing timeliness; they im proved on this in 2008 and m ade m ore progress with the recent information system upgrades. Data shows there were only 756 ac tivations during the Round, a large decrease from the past. 88 This predictably w ould result from the much shorter maximum revocation terms provided in Realignment.
The information system does not measure the Optional Waiver Review timing set out in the H earing Directive, but does m easure and find that all but one m et the optional waiver revocation hearing dead line. This included som e postponem ents, which m ay be subject to th e analytical questions discussed in P robable Cause Hearing, supra. Because of their small number, the Special Master did not undertake a review.89
Early in Defendants’ track ing, optional waiver Revocation Hearings appeared very late. Defendants brought about great im provement so that only 1% appeared late
37

when the S pecial Master reviewed this in 200 9.90 Defendants’ current reports do not

separate op tional waiv er Revocation Hearin gs, but it is the S

pecial Mas ter’s

understanding that they are in cluded in the aggregate numbe rs for revocation hearings

discussed infra.

In the Special Master’s experience, Optional Waiver Reviews are conducted

consistent with probable cause hearings.

Revocation Hearing There were approximately 319 revocation hearings per m onth.91 There has been a

continuous decrease since th e high of nearly 2,500 per m onth in 2007. Hearings dropped by about one-third with Realignment, and the amount has remained steady since then.92

According

to Morrissey and/or the terms of the Permanent Injunction, due process

is provided in revocation hearings w hen parolees have the opportunity to be heard and to

present evidence on term s equal to the State; when adverse evidence h as been disc losed

by the tim e of attorney appointm ent or as s oon as practicable before the hearing if the

State discovers the evidence later; when th eir conditional right to confront adverse

witnesses is preserv ed consistent with curr ent case law; when the proceeding is held

within 45 days of the parole hold and within 50 miles of the alleged behavior by a neutral

and detached decisionmaker who ha s the full range of disposition options; and when the

parolees are provided a written record of the proceedings.

Defendants have consistently protected pa rolees’ right to be heard in revocation hearings long-term.93 There was a surp rising rise in the number of hearings held after the

parolee was removed or was absent f or other reasons; in the previous Round, there were

38

eight objections, while there were 29 in the current Round. 94 This is partly a product of a

longer Round and m ay partly arise from the increase in not in custody hearings – held in

counties where jails release paro lees before hearing – where parolees have received

notice of the hearing but do not appear. In

any event, at a rate of about 1.5% of

revocation hearings, this does not have significant systemwi de im pact on the class of

parolees’ opportunity to be heard. Objections concerning de nial of parolee’s evidence were even more rare. 95 Defendants analyzed CalPAP data for m ore than a three-y ear

period. They found the occurrence of objectio ns concerning the rights to be heard and

present evidence to be even lower over time, indicating that these protections have served well on a sustained basis.96

Fundamental fairness requires that the Stat e provide parolees the evidence against

them in ti me to prepare a defense. The Permanent Injunction executes that throug h a

mandate to provide the evidence on which the stat e intends to rely at the tim e an attorney

is appointed or, if discovered later, as soon as practicable before the hearing. Defendants’

policy requires exclusion of evidence provid ed for the firs t tim e during hearing, un less

the state shows good cause for not producing it earlier.

Long-term, Defendants have routinely pr ovided evidence in revocation packets to attorneys at the time of appointment.97 As discussed supra, there have been difficulties in

the pas t with evidence m issing from packets. CalPAP has indicated that usually the

representing attorney will contact th e CalPAP office (that h as access to RSTS) and they

will furnish the atto rney the m issing infor mation. Defendants and CalPAP have several

mechanisms to follow up on missing documents and the Special Master sees no reason to

believe any such issues are not addressed before the revocation hearing.

39

CalPAP data through the years has de monstrated allegations that, occasionally, the State has introduced evidence at revoc ation hearing that was not previously provided.98 In the current Round, objections on poi nt occurred in 1.7% of revocation hearings. T his is an increase over the last two Rounds, but rem ains a low occurrence. Fewer than one-third of the objections were gr anted. . The m ajority of denials in recent Rounds reflected that the hearing officer let th e evidence in without a review of whether there was good reason for not producing the evidence earlier 99 and this has occurred in the Special Master’s presence. It is not known whether th e hearing officers followed policy and conducted a good cause review dur ing this Round’s objections. W hen this review does not occur, it is an unfair practice, even though it happens infrequently.
Defendants’ analysis shows that objections to evidence first produced at hearing occurred even less freq uently over a m ore th an three-y ear period overlapping with this Round. In that review, objections occurred at a rate of only 0.5%, and more than half of the objections were granted.100
The right to confrontation is conditiona l in parole revocation hearings and is subject to a balancing test develope d throu gh case la w, m ost prom inently US v. Comito.101 The Perm anent Injunction singles this out as a separate requirem ent in recognition of the importance that evidence not be used unfairly and that parole should be revoked based on “verified facts,” in the language of Morrissey.
Defendants correctly no te th at, when adverse witness es are p resent, parolee counsel consistently has the oppo rtunity to cross-exam ine them .102 There have been issues, however, when the witness does not appear; this requirement has been the subject
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of further orders of the Valdivia court and the history of De fendants’ efforts is covered extensively in the reports of the Special Master.
In the current Round, Comito objections were raised in 12% or m ore of the revocation hearings. 103 T he Special Master reviewed a representative s ample of thes e hearing tap es and written reco rds d rawn from a grea t m ajority of hearing officers who ruled on Comito objections during the Round. 104 At Defendants’ request, all sam pled cases involv ed a denied objection b ecause of th e potential for harm to the paro lee. In exactly half of the review, the decisionm aker either did not employ the case law-required balancing test or used only the State’s side of the test. 105 The evidence was let in again st the paro lee.106 If the results are generalizable, this suggests an incorrect application of this case la w in 6% of revoca tion h earings; this is consisten t with the S pecial Ma ster’s analysis in the previous Round.107
In thinking in term s of harm , a large m ajority were revoked based in part on the improperly adm itted evidence but five were not. Just over half were revoked based on other charges as well, while 40% ap peared to have been revoked solely on the charges supported by the hearsay. Defendants argue that parolees are only harmed when they are revoked solely on the improperly admitted evidence, that this occurred in only three cases when they analyzed the sam ple, and that this rate is in significant in r elation to the total revocation hearings.
Defendants assert that the rate of objections sustained supports the view that no harm is occurring, and thus m akes irrelevant whether the hearing of ficers a re us ing the legal balancing test. In their analysis of a more than three-year period overlapping with
41

this Round, they found that 68% of objections on point were sustained; this is consistent with the Special Master’s previous reviews.108
Defendants also see attorn eys as having the obligation to protect their clients by appealing any incorrect Comito rulings through Defendants’ Decision Review process
Defendants note that only two parolees sought Decisi on Review for im properly admitted hearsay during the Round, and that th e system provided a rem edy for one and found the other hearing had been properly handled, 109 indicating that th e review process was effective. Also, in a study of a m ore than three-year period overlapping with the current Round, Defendants note that there ha ve only been 58 such requests, 78% of which Defendants found were appropriately denied.110
The Court issued further or ders as to this requirem ent in 2008. A summ ary of the status follows:
Specified revisions to policies and procedures: De fendants m ade very good revisions to the policies and procedures and distributed them in late 2009.
Training: Defendants and CalPAP initi ated training in summ er 2009. Defendants initially offered refresher training m ore often than the annual interval required. The m ost recent training the Special Master h as been made aware of occurre d in October 2010, s o the annual training requirement has not been maintained.
Review of hearing officer practice: Defendants initia ted a centrally loca ted oversight system in 2008. It was revised an d more broadly im plemented in 2010. It has been used periodically, with multiple-month interruptions in some locations. The S pecial Master has not been made aware o f whether it has been in use, and to what extent, in 2012.
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Follow-up training and rem ediation: For hearing officers not dem onstrating an understanding of this area of required prac tice, Defendants were to support them in increasing their knowledge and sk ill. Beyond a general statem ent that this is being done, the Special Master has received no updates since the 2008 order.
Information system tracking: CalPAP maintains a basic system along these lines. Defendants invested substantially in staff time, thought and energy to address this topic and made extended, good faith efforts to sa tisfy the Court’s orders. It is unfortunate that, despite this, hearing officers’ correct application of the law was measured at 50% in 2009,111 before the policy change and training, and measures 50% today.

Revocation

Hearing Timeliness:

Applying an analysis si milar to that described in Probable Cause Hearing, supra,

timeliness for revocation hearings appears to be:

86%

timely112

4% late

10%

postponements

Given this Court’s determ ination, early in this action, that 90% timeliness supported a finding of c onstitutional violation, an 86% tim eliness rate would not be sufficient. The Special Master examined a sa mple of postponed cases, and a m inority of the m exceeded 45 days. T hus, on closer exam ination a nd once postponem ent-related questions are resolved, these totals may well shift significantly.

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Two parolees were granted rem edies for la te revoca tion hearings during the Round. 113

Other features of the Injunction and due process: As described in Probable Cause Hearings supra, various sources give the Special Master confidence that revocation hearings are conducted by neutral, detached hearing officers, an important right. The Court has previously found in substantial compliance the requirements that hearing officers have the full range of disposition options and that hearings be conducted within 50 miles of the alleged violation. By all appearances, these features continue to operate well.114

W

ritten record:

The obligation to provide a written heari ng record to the paro lee is grounded in

Morrissey, which includes in its summary, “…(f) a written statement by the factfinders as to the evidence relied on and reasons for revoking parole.” 115 In th e Sp ecial Mas ter’s

review, a commendable 96% of revocation heari ng records captured th e evidence relied on and reasons for revoking parole.116 CalPAP records indicate that 25% of the objections

made do not appear in the hearing record; attorneys do have the opportunity to review records at th e end of th e hearings an d request that such om issions be corrected. 117 There

are the sam e possible lim itations of relying on indirect m ethods of delivery in som e

locations.

In summary, as to revocation hearings:

Opportunity to be heard

rise in objections, but 1.5% total

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Presenting evidence on same terms as the State Disclosing adverse evidence in advance Confrontation rights

<1 objection per month rise in objections, but 1.7% total 50% applying case law

policies and procedures revised

training compliant 2009-2010, currently overdue

oversight set up, unknown status

Timeliness 86%

tracking adequate timely
4% late 10% postponem ents

50 miles

previously found in substantial compliance

Neutral decisionmaker

< ½ % objections

Full range of disposition options Written record

previously found in substantial compliance 96% show evidence relied upon and reasons for revocation

indirect delivery in some locations is of unknown consistency

Waivers and continuances

The

Valdivia Remedial Plan provides that

Parolee shall have the right to waive time as to any of these hearing time constraints with or without good cause.

Attorney shall have the right to a continuance upon the showing of good cause in the absence of his or her client's consent in cases of emergency or illness or upon such other showing that the Deputy Comrnissioner/Parole Administrator can make a finding of good cause

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In the Special Mas ter’s experien ce, Defendants comm only perm it waivers and continuances by parolees and their counsel. Ob jections to a denial of postponem ent were extremely rare during this Round. 118 The parties agree to a finding of substantial compliance119 and CalPAP has not m ade known a ny objections to such a finding. The Special Master therefore recomm ends a finding of substantial com pliance on both requirements.

Revocation Extension

.

The issue of revocation extens ions – that is, pro ceedings where a paro lee

serving a revocation term can have that term extended for in-custody m isconduct – is

reserved as an outstand ing issue in the Pe rmanent Injunction. The parties subsequently

agreed to hold these proceedings according to the Valdivia process.

The State d id es tablish the Valdivia revocation steps, wi th Division of Adult

Institutions staff assum ing som e of the re sponsibilities. In 2008, Defendants took an

important step by integrati ng tracking into their m ain revocation database, which

addressed problems attendant to disparate, local tracking methods. Over time, Defendants

concentrated many staff resour ces – particula rly within th e self-monitoring team and in

the Institutions division – on training, troubleshooting, setting up systems, mentoring and

conducting oversight to improve this process.

Nevertheless, this has been one of the least com pliant functions throughout

Valdivia implementation. Progress has been evid ent over tim e, but compliance remained

at inadequate levels. Tim eliness numbers im proved, but rem ained lo w at a ll steps. The

best perform ance occurred at probable ca use and final revocatio n hearings, but none

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exceeded 7 5% tim eliness rates, to the Sp ecial Master’s knowle dge. Monito rs also observed possible problems with evidence and effective communication, inconsistent use of tracking and tapes, and other substantive and procedural issues.120
Defendants understand Realignm ent to have essentially ended revocation extensions for parolees. It will continue for prisoners with li fe terms. The State interprets the law to have perm itted revocation extensio ns for parolees only if their ho lds or revocation terms were initiated before Oct ober 1, 2011; with m aximum revocation terms set at one year, nearly all parolees have been released. Only those who incurred a revocation extension in the las t year, appare ntly a total of 174 as of this writing, could potentially be subject to further revocation extensions. 121 Defendants rep ort there were five revocation extension acti ons in Septem ber 2012, that these were sex offenders that refused to sign thei parole agreem ents, and none since that tim e.122 This is de minimis to the class. The Special Master recommends a substantial compliance finding.
Remedial Sanctions The Court adopted the Special Master’s findings of substantial com pliance for
consideration of rem edial sanctions at each step of the Valdivia process,123 the Rem edial Sanctions Order, 124 and sufficient “third prong” rem edial sanctions. 125 The r emaining question before the Court is whether the re quirements for rem edial sanctions for the Permanent Injunction have been m et. The defi nition of rem edial sanctions is lim ited to the In Custody Drug Treatm ent Program (IC DTP) and Electronic In-Hom e Detention (EID).
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Defendants argue that given the signi ficant overlap b etween the Rem edial

Sanctions Order and the Perm anent Injunction that the burden for substantial compliance for the Perm anent Injunction has been m et.126 Plain tiffs argue that the change in the

nature of the parolee population due to Realignm

ent requires a change in the

configuration of the ICDT P before substantial com pliance can be achieved. 127

(Defendants’ efforts to respond to changes that have resulted from Realignm ent are discussed below.) Both parties indicate th at co mpliance has been m et with the E lD.128

The Special Master agrees with this conclusion.

Defendants continue to retain funding for third prong, ICDTP and EID rem edial sanctions.129 The num ber of available program sl ots for ICTDP has not decreased and

there continues to be ample capacity for wom en and parolees with di sabilities. There is

evidence of placem ent of wom en and paro lees with p hysical and m ental health disabilities.130 Data continues to support that remedi al sanctions are considered at every step in the revoca tion process. 131 By all m easures Def endants have m aintained a

commitment to retaining the capacity, placement and monitoring systems for ICDTP and

other remedial sanctions.

The impact of Realignment on the u se of ICDTP was f irst evidenced in the la st

Round. By the end of 2011, the legislated decr ease in the am ount of tim e that can be

served by parolees for revocations had be gun to result in a significant decrease of

placements in ICDTP. That trend continue s in this Rou nd. The av erage num ber of

parolees in an ICDTP program the last six months of 2011 was 1,368. By Septem ber of

2012 the number of parolees has dropped to less than 300 parolees. Parolees in ICDTP by Month 2012132

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January February March April May June July August Septem

554 418 462 384 436 343 360 340 ber 298

Defendants engaged in several efforts to understand the reason for the decline and

to make minor changes to m odify the program. For example, the jail-based program was eliminated because of the high percenta ge of parolees rejecting the program .133 Program

changes like the recen t change of the pass policy have m ade been to m ake the p rogram work better for shorter stays. 134 Despite thes e e fforts, parolee r ejections ra te f or th e

program remain high.

At the request of the Spe cial Master, Defendants undertook a study to identify the

refusal rate of ICDTP by parolees. Using th e revocation database, Defendants were able

to determ ine when a parolee refused the offer of re medial sanctions at probable cause

hearing, settlement conference, optional waiver review and revocation hearing steps. The

findings affirm the high rejection rate of ICDTP. Between January 1, 2012 and June 30,

2012, placements into remedial sanction programs at each step were as follows:

Probable Cause Hearing: Of 35,554 total actions 1,779 (5%) were remedial sanction dispositions. Parolees refused ICDTP in 2,172 (6%) actions.

Settlement Conference: Of 214 total actions 14 (7%) were remedial sanction dispositions. Parolees refused IC DTP in seven (3%) actions.

Optional waiver reviews: Of 780 total actions, nine (1%) we re rem edial sanction

dispositions.

Parolees refused ICDTP in nine (1%) actions.

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Revocation hearings:

Of 2,305 total actions, 142 (6%) were rem edial sanction dispositions. Parolees refused ICDTP in 28 (1%) actions.

The rejection level at the probable cause hearing step is significant. This information will be valuable to Defendants as they begin to reshape their remedial sanction programs to better align with the composition of the parolee population.135
The question before the is Court is must the Defendants make changes to existing programs to respond to recent legislative changes to be in substantial compliance with the Perm anent Injunction. The Special Master finds nothing in the Permanent Injunction that speaks to anything other than evidence that Defendants have rem edial sanctions and considers them at every step of the revocation pro cess. Defendants have developed a variety of different re medial sanc tions in an attem pt to m eet the ne ed of parolees. One of these program s, ICDTP is being seriously i mpacted by Realignm ent. That said, Defendants have continued their commitment to the progr am and it is their prerogative when and if the program content should change.
The Special Master finds Defendants to be in com pliance with the P ermanent Injunction requirements for all remedial sanctions.

Mentally Ill Parolees Issues raised by mentally ill parolees facing revocation are difficult from a variety
of perspectives -- due process, public safe ty and hum anitarian – a ll of which must be balanced. T he parties have devoted significant efforts to these issues s ince the earliest days of the Valdivia Remedial Plan. There has been very substantial progress over tim e and there are enough open questions that the Special Master is una ble to m ake findings concerning compliance with this Court’s orders at this time.

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Early in Valdivia im plementation, the State empl oyed a category of revocations referred to as “psych returns,” a pro cess that returned mentally ill parolees to prison but sometimes operated poorly to c onnect them to treatm ent and to review when they were able to return to community. Importantly, Defendants eliminated this practice.
After extended negotiations supplemented by orders of this Court in January 2008 and August 2008, Defendants created a m uch more fair system intended to revoke only for violation behavior, suspend proceedings fo r those too decom pensated to particip ate, request treatment, arrange for clinical evalua tion, and review regular ly for the paro lee’s ability to participate in a hearing. The system also has provisions fo r attorney access and, for severe cases, referral for assistance in community placement and release from custody at a set maximum date.
The system was designed for parolees housed in CDCR. Recognizing the differences in comm unicating with clinical and custody staff em ployed by other entities, the State deferred creating procedures specific to jails. When Realignment led to all new revocation term s being served in jails, be ginning in October 2011, the State revised its procedures, principally lessening several m andates that re ly on intera ction with jail s taff but encouraging the State’s staff to continue with all policy components.
The system appeared to work well when the Special Master exam ined it in 2009, and accord ing to subsequent anecd otal repr esentations. Defendants have not indicated that they have reviewed the system since January 2009, before the system was fully in place and b efore the 20 11 revision. There is, thus, insufficient inform ation on which to reach a finding about whether current practice satisfies this Court’s orders.
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Plaintiffs objected to the 2011 policy ch ange and have issued a N otice of Violation about current practi ces. Dispute resolution is se t to begin at the end of November. Their allegations have to do with the system described abo ve as well as two other aspects of this Court’s 2008 orders – access to Departm ent of Mental Health treatment and parole agents’ use of shor t-term involuntary comm itment procedures before initiating revocation actions, where appropriate.
The dispute involves questions of interpretation of this Court’s language, the need for de monstration of pr actice as distinguished from actual violations, the scope of any identified breakdowns, differe ntiating due process risk fro m actual failures, and the interaction with orders from another federa l court. W ith this com plex mix pending, the Special Master d eclines to reach any fi ndings on com pliance with this Court’s 2008 orders con cerning th e m entally ill and looks forward to a successful dispute reso lution process.
ADA and effective communication The Perm anent Injun ction m andates that “D efendants will ensure th at parolees
receive effective communication throughout the entire revocation process.” Additionally, the Valdivia Rem edial Plan discuss es providi ng ADA accomm odations when needed. Defendants’ practices in this regard have b een the subject of dispute long-term , in this action and in Armstrong v. Brown.
Defendants’ policies and procedures require staff to assess a parolee’s disabilities, offer accommodations, and prov ide effectiv e communication assistance to parolees during each step of the revocation process. 136 The polic ies m andate notice agen ts a nd
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hearing officers to identify the parolee’ s needs at each interaction by conducting interactive inte rviews with paro lees, and reviewing field file inform ation and an electronic database of disability and effective communication information.
The database was developed by the State pursuant to the Armstrong litigation and was deployed in 2007. It includes historical information about accommodations provided in revocatio n proceed ings; all prev ious copi es of the BPH for m 1073 (disab ility and effective comm unication.information gather ed for, and supplem ented during, the revocation process); m edical, m ental healt h, developm ental disability, and educational classifications during the m ost recent CDCR inca rceration; and so me docum ents supporting these conditions, referred to as source documents.
Policies require staff to pr ovide assistive devices, a rrange for translation, and provide oth er needed accomm odations during notice service and h earings, as well. Commonly, the attorney’s presence is the accommodation provided for difficulty reading, understanding or communica ting. For physical disabili ties and language needs, Defendants work with m agnifying sheets, he aring assistive devices, dual handset phones for calling translation services, and in-pers on language and sign language interpreters. Where additional needs are identified, and/or accommodations are provided, staff are required to enter the information in the database.
Staff have been tra ined in these po licies, and monitors an d the Special Mas ter have observed these practices routinely in use. However, Plaint iffs regularly report learning of breakdowns in documentation an d therefore tracking, and questions of whether any, or the appropriate, accomm odation was provided. 137 Individual cases have been cited in m onitoring reports, Plain tiffs’ response to Defendants’ Com pliance
53

Assessment Report, an d Plain tiffs’ inf ormal objections to the draf t Special Master’s report. It has been difficult, to date, for th e Special Mas ter to discern the scope, nature, and substantiation for these allegations. The Special Master understands that there have been longstanding orders in Armstrong concerning som e of these practices, and further remedial orders issued in January and April 2012.138
If parolees believ e a necessary acco mmodation is not available or sufficient, the attorney may object and attempt to have it pr ovided during a hearing, they may complain through a designated A DA grievance system , or request a Decision R eview. In a more than three-year period overlapping this Round, Defendants report that 47 grievances or Decision Review requests were subm itted concerning ADA or effective communication issues. Two were granted and the cases dism issed; the others were denied and are detailed in Defendants’ Compliance Assessment Report.
Translating and simplifying forms The Perm anent Injun ction requires that fo rms provided to parolees were to be
reviewed for accuracy, simplified, and translated to Spanish. Paragraph 19 of the Injunction requires Defendants to ensure all form s provided
to parolees by the Board of Paroles and the Paroles Division are review ed for accuracy, simplified and transla ted into Spanish. The parties are in a greement that the f ollowing forms have been reviewed and translated:139
 BPH 1073 Request for Reasonable Accommodation  BPH 1074 Disability-Related Grievance Form  BPH 1100 Notice of Rights  BPH 1100-B Witness Worksheet  BPH 1102-A Time Lost for Absconders/ Parolees at Large
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 BPH 1004-B Parolee/Attorney Decision Form  BPH 1104-C Waiver of Attorney Assignment  BPH 1135-A-1 Notice and Acknowledgement of Rights for Revocation
Extension Proceedings In addition the Board of Paroles has built into the revocatio n database the ability to print the following forms in either English or Spanish:
 BPH 1105 Subpoena  BPH 1106 Subpoena Duces Tecum  BPH 1107 Declaration ISO SDT  BPH 1109 and 1109A Notice Requesting Appearance These f orms are prin ted in the appr opriate la nguage and then provided to the parolee. There is no need for a hard copy version of the form.
Plaintiffs assert that Defendants have yet to translate 1105, 1106, 1107, 1109, and 1109A, the 1100 INT-EXT, 1102 INT- EXT, and 1102 and the 1135-AX. 140 Defendants indicate that form 1106 became part of the 1107 in 2011. 141 Form 1109A became part of Form 1109. As stated Form s 1105, 1106, 1107 and 1109 are translated and printed from the revocation database. The 1515, the form th at reviews the conditions of parole, has always been in Spanis h. The 1515 addendum , a form that ou tlines special conditions of parole h as not been translated. Th ere is blank space on the 1515 to write in special conditions. Both for ms were updated last spring to notify parolees that they do not have to sign the for m. These new versions of the 1515 have no t yet been translated. These forms will be trans lated into Spanish because they will con tinue to be us ed for parolees supervised by the Paroles Division. The remaining forms 1100 INT-EXT, 1102 INT EXT and the 1102 were not translated and it no longer m akes sense to do so. The a mount of time it would take to complete the translation and review process with Plaintiffs is several months. Given that revocation will no longer be under the ju risdiction of the Board of
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Parole beginning in July 2013 and the s mall percentage of parolees affected, translating these forms at this date is not a wise use of resources. Fo rm 1135X has been a disputed item between the p arties. The f orm is not p rovided to parolees but is used to docum ent the m ental state of the parolee in the for m of a chronological entry. As such the for m should not be subject to paragraph 19.
The Specia l Mas ter f inds Def endants in su bstantial co mpliance w ith the requirement to provide accurate, s implified, Spanish trans lation of form s provided to parolees.
Tapes The Permanent Injunction requires that: Upon written request, parolees shall be provided access to tapes of parole revocation hearings. This procedure appeared to work well through 2008. Logs showed requests m ade
at a rate of approxim ately 60 to 80 per m onth and they in dicated requ ests were f illed within 30 days at a rate of 97% or better. There had been anecdotal reports of poor quality recordings from CalPAP attorneys and monitors.
In July 2009, Plaintiffs reported being to ld tha t no tapes ex isted f or 15 % of the tapes they had requested in recent m onths.142 They also observed i ndicia of tracking log inaccuracy, late tape provision, and audibility issues with so me tapes. To addres s these issues, the Board distributed guidance to hearing officers and clerical staff; delivered new recording equipment; and devised additional procedures, including enhancing centralized tracking to ensure that tapes were subm itted to headquarters, and sup ervision. In late
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2009, the State’s data showed somewhat less timely filling of requests, at 90%, and som e very long times for a small number of cases.143
Plaintiffs more recen tly identified a subs et of t he above concerns, a very sm all number of c ases in 2010 and 2011 in which th e State was unable to provide tapes when those five parolees requested them in support of writs of habeas corpus. Defendants note that parolees also have the option to a ppeal decisions through the State’s Decision Review process without a tape , an d that two of the complainan ts w ere g ranted new revocation hearings, a rem edy Plaintiffs had requested in 2009. 144 Defendants report that all five parolees who sought Decision Review for blank tapes, during a more than threeyear period studied, were granted a new hearing or modified findings or dispositions.145
The Special Master has not received in formation about whether the rem edial measures Defendants put in place in 2009 had the desired effect.
Policies The Permanent Injunction specifies procedures and expectations for the parties to
meet periodically regarding polic ies, forms, and plans, and for the P laintiffs to hav e an opportunity to review and comment on any new or revised Valdivia-related policies.
The parties have several m echanisms that they have used to be com pliant with this aspect of the Injunction. In the initial stages of the cas e there were frequent meet and confers to develop policies and forms as well as processes by which the parties and other key stakeholders such as CalPAP c ould keep each other infor med of progress and/or changes. Sometimes the Special Master was req uested to assist or to be engaged in these meetings while a t oth er tim es, the parties met alone. The m ost recent exam ples of
57

meetings where the Mastership was involved have been over proposed changes due to Realignment. An example of the latter is wh ere the Mastership has not been involved has been meetings by the parties to resolve a list of remaining disputed issues. Many issues as well as follow-up to in-person m eet and c onfers are resolved th rough conference calls and/or correspondence.
Defendants have been conscientious and re spectful of the re quirement to ensure that Plaintiffs are not just inform ed of ch anges but are provided adequate tim e for i nput and response to proposed changes. W hen this has not occurred it has typically been a result of oversight by a staff m ember not aware of the requirem ent or not providing adequate time for input due to the late arrival of materials. This situation arose most often in the early years of th e case. In recent y ears legis lative changes such as Realign ment have created significant uncerta inty for Defenda nts. Despite this, Defendants have done an admirable job of informing the Plaintiffs of impending changes and where appropriate seeking their input and review.
Defendants cite in their most recent com pliance report a lis t of 19 policies and/or forms that were negotiated with th e Plain tiffs between January 1, 2011 and April 30, 2012.146 Defendants also reference the disputed item s process whereby the parties m et from 2009 through 2011 to resolve a negotiated list of items where the parties were not in agreement. The process resulted in the parties reaching agreement on 24 items and partial agreement on one item. Twenty-one items remain in dispute and 17 were deferred.147
Defendants are in substantial compliance with th is requirement of the In junction. As with other requirem ents, it is the expe ctation of the Special M aster th at h aving
58

achieved substantial compliance does not re lieve Defendants from a dhering to this requirement until the case is closed.
Additionally, the Permanent In junction requires Defendants to develop and implement sufficiently s pecific policies and procedures to ensure continuous compliance with all of the Perm anent Injun ction’s re quirements. Defe ndants accomplished a great deal in te rms of policies and pro cedures in itially. They continued to issue addition al policies as time went on; to revise policies for current conditions; and to generate policies implementing new leg islative pr iorities, inte grating th em with ex isting Validivia mandates.
As noted, Defendants routinely conferred w ith Plaintiffs throughout this process. While they reached agreement in many instances, the parties identified a large num ber of policy issues in d ispute. Plaintiffs maintain that, absent policies on these disputed items , Defendants’ policies remain insufficiently specific to ensure compliance.
Facilities The Permanent Injunction requires: An assessment of availability of facilit ies and a plan to provide hearing space for probable cause hearings (¶11(c)) Early in Valdivia implementation, the Defendants ne gotiated access to space for
hearings and other revocation proceedings at nearly every site where parolees are housed. There was an exception at a very small num ber of county jails, but Defendants arranged reasonable alternatives. With Realignment, all proceedings, except revocation extensions, shifted to county jails. The Special Master has visited at least 10 jail sites since
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Realignment im plementation, and the parties have m onitored a great deal m ore; it appears that jails were able to accommodate the increased volume and any other changes.
In 2011, the parties raised and resolved a dispute concerning jails that held hearings in room s with barriers separating so me parties. In the past, Plaintiffs have objected to the conditions for attorney-clien t m eetings and for notice service at som e locations, particularly offering concer ns about confidentia lity and effective communication.
On balance, the Special Master f inds Defendants in substa ntial compliance with the requirement captured in ¶11(c).
Staffing The Permanent Injunction mandates that Defendants shall maintain staffing levels
sufficient to m eet all o bligations u nder that o rder. The Special Master agrees with Defendants that the continued progress in pr oviding timely processes and protecting the due process rights of parolees indicates that s taffing levels are sufficient to m eet the obligations of the Valdivia order. In the face of the adde d workload of Realignm ent and the r esulting layof fs, the f act that the Pa roles Division and par ticularly the Bo ard continued to work on efforts to im prove Valdivia processes, m akes it difficult to argue the staffing resources are not adequate. The Defendants clearly h eard th e Special Master’s ca ution to n ot let the wo rk of R ealignment def er cr itical c ompliance issues indefinitely.148
In the in itial implementation of Realignment, the existing pr ocesses continued to function but efforts to improve upon them slowed. 149 Paroles Division and Board staff
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worked diligently to c reate sys tems to pr event communication failu res and to create needed information sharing between themselves and county agencies now involved in the parole revocation process. 150 The Board com pleted an impressive array of resource documents and self study m odules all of which are designed to improve the parole revocation process.151
During the last Round, several revocation centers were consolidated with a resulting decrease in Board staff. Other planned decreases in Board, Paroles Division and Valdivia records positions at Institutions also took place. 152 This Round the Pitchess Detention Center was closed.153 By July 1, 2013 the Board anticipates the elim ination of most clerical and custody positions in field operations and more Deputy Commissioners.
The Special Master app lauds the efforts of all division s to m aintain a f ocus on Valdivia pro cesses in th e face of th e downsizin g and even tual elim ination of positions. Defendants have achieved substantial com pliance in the area of m aintaining sufficient staff levels. Plaintiffs’ monitoring
The Permanent Injunction provides for Plaintiffs' counsel to have access to information reasonably necessary to m onitor Defendants' com pliance with this Court’ s Valdivia orders and related policies and procedur es. Defendants were found to be in substantial compliance with this provision during earlier Rounds.
The Permanent Injunction also requires that there be a m echanism for addressing concerns Plaintiffs counsel raise regardi ng individual class m embers and em ergencies. The agreed upon m echanism to resolve indi vidual parolee concerns raised by the Plaintiffs continue to w ork well. D efendants have been responsive to Plaintiffs’ past
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concerns about tim eliness and response quali ty. The system is now tim ely and typically provides the level of quality required by Plai ntiffs to respond effectively to individual parolee concerns.
In the first six m onths of 2012, Plaintiffs em ployed the m echanism ten tim es.154 This is a decline from 187 requests for inform ation in 2009. Defendants m aintain a tracking log of all cases where a concern has been raised. In all cases during this Round, the issue raised was responded to within 30 days. 155 Plaintiffs are in ag reement that both the tim eliness and quality of Defendants’ responses have improved over tim e.156 The Special Master finds Defendants to be in substa ntial compliance with th e requirement to maintain a mechanism for investigating individual concerns.
Other Orders of this Court
As noted, in addition to the Perm anent In junction, this Court has issued orders concerning Valdivia implementation. The details of thei r status are offered above. In summary:
Designating inform ation as confidential (May 2005): This Court has previously issued orders finding substantial compliance.
Remedial sanctions (June 2005 and April 2007 ): This Court has previously issued orders finding substantial com pliance as to the 2007 order and aspect s of the 2005 order, which reinforces obligations laid out in the Valdivia Remedial Plan. T he Special Master now recommends a finding of substantial compliance for the remainder of the 2005 order.
Improvements to Defendants’ infor mation system (Novem ber 2006 and December 2010): Defendants have m ade pr ogress periodically since 2 006 and made
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substantial gains during this Round. To satis fy these orders, a few significant tasks remain, particularly concerning reports displaying Paroles Division steps.
Establishment of internal oversight mechanisms (Novem ber 2006): The Special Master recommends a finding of substantial compliance.
Attorney access to information in clients’ field files, witness contact information, and m ental health inform ation (June 2007): Th is Court has previously issued orders finding substantial compliance.
Interstate parolees and c ivil addicts (October 2007): This order determ ined that these two groups ar e not subject to Valdivia requirem ents. No obligations flowed fro m this order and no further action is required.
Due process for parolees who appear too m entally ill to pa rticipate in re vocation proceedings (January 2 008): Defendants m ade very good progress in setting u p this system by mid-2009. Information about its current operations, after significant contextual changes likely to affect practice, has not been presented.
Preserving confrontation ri ghts consistent with current case law (March 2008): Defendants devoted significant attention to this set of req uirements and m ade som e progress in mid-2009. Approximately half of studied hearings do not apply the balancing test a s calle d f or in cas e law and Def endants’ train ing m aterials. Not all asp ects of the 2008 order appear to have been implemented.
Timely access to inpatient psychiatric hos pitalization, and p sychiatric evaluation pursuant to California Welfare and Institutions Code § 5150 (August 2008): These orders remain in dispute. As a consequence, no recen t showing has been m ade as to practice. A dispute resolution process has been initiated.
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Recommendations
The Defendants have de monstrated com pliance with m any additional
requirements of the Perm anent Injunction an d som e subsequent orders, m eeting their
essential aim. I therefore recommend that the Court order that the following requirements
are subs tantially com pliant, and tha t the sub jects will th erefore no long er be a pr imary
focus of Plaintiffs’ or the Special Master’s monitoring unless they are inextricably linked
with r eview of the Pe rmanent Inju nction, or a rise in the course of investig ating an
individual p arolee’s s ituation. Thes e item s will remain in th is status un less and un til it
comes to the parties’ or the Special Master’s attention that there has been a significant
decline in compliance.
These orders should apply to the following requirements:
 No later than 48 hours after the parole hold, or no later than the next business day if the hold is placed on a weekend or holiday, the parole agent and unit supervisor will confer to determine whether probable cause exists to continue the parole hold, and will document their determination.
 No later than 3 business days after the placement of the hold, the parolee will be served with actual notice of the alleged parole violation, including a short factual summary of the charged conduct and written notice of the parolee's rights regarding the revocation process and timefiames.
 Parolee shall be provided with a written notice of rights regarding the revocation process and time frames.
 No later than 6 business days after placement of the hold, a violation report shall be completed.
 Defendants shall appoint counsel for all parolees beginning at the RTCA stage of the revocation proceeding (all locations).
 Defendants shall provide an expedited probable cause hearing upon a sufficient offer of proof by appointed counsel that there is a complete defense to all parole violation charges that are the basis of the parole hold.
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 At the time of appointment, counsel appointed to represent parolees who have difficulty in communicating or participating in revocation proceedings, shall be informed of the nature of the difficulty…The appointment shall allow counsel adequate time to represent the parolee properly at each stage of the proceeding.
 At probable cause hearings, parolees shall be allowed to present evidence to defend or mitigate against the charges and proposed disposition.
 Parolees' counsel shall have the ability to subpoena and present witnesses and evidence to the same extent and under the same terms as the state.
 Counsel shall be provided documents the State intends to rely on
 Parolee shall have the right to waive time as to any of these hearing time constraints with or without good cause.
 Attorney shall have the right to a continuance upon the showing of good cause in the absence of his or her client's consent.
 Revocation extension proceedings
 All remedial sanctions obligations
 Defendants will ensure that all forms provided to parolees are reviewed for accuracy and are simplified … This process will include translation of forms to Spanish.
 Defendants shall meet periodically with Plaintiffs' counsel to discuss their development of policies, procedures, forms, and plans.
 Defendants shall develop and implement sufficiently specific policies and procedures that will ensure continuous compliance with all of the requirements of the Permanent Injunction.
 Defendants shall serve on counsel for Plaintiffs an assessment of the availability of facilities and a plan to provide hearing space for separate probable cause hearings.
 Defendants shall maintain sufficient staffing levels in the CDC and BPT to meet all of the obligations of this Order.
 The parties shall agree on a mechanism for promptly addressing concerns raised by Plaintiffs' counsel regarding individual class members and emergencies.
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 Defendants shall institute and maintain the infrastructure needed for selfmonitoring
The Special Master also recommends that the Court find the Probable Cause Hearing step in substantial compliance. As to that step, onsite monitoring should be discontinued, consistent with other items found in substantial compliance, but reporting on questions of timeliness shall continue.
I recommend that the Court order the Defendants to report the status of these requirements to all parties effective May 15, 2013 and, if the Valdivia action continues beyond July 1, 2013, the Defendants should report every six months thereafter, until the action is finally closed, on the status of items found in substantial compliance that have not been dismissed from the action.
Pursuant to the Order of Reference to the Special M aster, the Special Master' s reports shall be f inal, no later th an twenty (20) days after service of the final report, unless a par ty f iles written objec tions with th e Court. If any party files objections, the opposing party shall have twenty (20) days to file a reply to the objections with the Court. If objections are filed, the Court will conside r the matter and issue an order adop ting the report in full or as modified, or rejecting the report.

Respectfully submitted, _/s/Chase Riveland
Chase Riveland Special Master

DATED:

December 17, 2012

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1 On occasion, an analysis incorporates data through July or August 2012. 2 Determining the number of requirements is somewhat of an art. The Permanent Injunction describes 23 discrete requirements, set out in numbered paragraphs. The attached Valdivia Remedial Plan and process flowchart reinforce many of those requirements, and specify more process steps and activities. In each of these documents, a requirement is commonly a full process step (for example, a probable cause hearing), but sometimes a function within a process step (e.g., evidence can be presented at probable cause hearings) is listed as an independent requirement.
Court orders subsequent to the Permanent Injunction generally have reinforced or amplified requirements already contained in the Permanent Injunction and its attachments. They added only three unique issues – information systems, internal oversight, and mentally ill parolees. Understanding that not all of these requirements carry equal weight and that counting will necessarily not be fully precise, by the Special Master’s reckoning, they amount to 44 requirements, of which 35 have been satisfied sufficient to remove them from monitoring. 3 A number reflects an associated numbered paragraph in the Permanent Injunction 4 Sources for this section are the document with the electronic file name OSM Analysis Request.pdf, document titled RSTS Postponement Report Assumptions, and the Special Master’s extensive reviews of new reporting model reports with subsequent conversations with Defendants’ staff to clarify understanding of how RSTS is currently operating 5 Special populations such as extradition cases and not in custody proceedings are subject to alternate timeframes. In the past, these have been small populations, and the timeliness of some steps has been lower than for the general population. The Special Master’s understanding is that these groups are included in the aggregate numbers and there are no longer reports that show the timeliness for these populations. 6 Compliance Assessment Report 7 Compliance Assessment Report; informal communications with Defendants 8 Compliance Assessment Report, p. 74 9 Order, Nov. 13, 2006 10 Defendants are to be congratulated for developing a sound methodology to continue monitoring in a less costly b ut equally effectiv e way. Ph ysical tours a re only really neede d to observe notice of right s and probable cause hearings. The audit tools for each step of the process are embedded in the Nov. 13, 2012 email from Dan Carvo, Parole Agent III, Re: OACC staffing. 11 Plaintiffs allege that the unit no longer is completing corrective action plans after tours. See Plaintiffs’ Corrected Res ponse to Valdivia Co mpliance A ssessment Rep ort, 9- 27-12 p.101 . Th e to urs Plain tiffs cite are those t hat were cancelled due to the budget-related travel b an. All Defendant monitoring tou r rep orts since mid-2008 have corrective action plans. 12 See Nov. 13, 2012 e-mail from Dan Carvo, Parole Agent III, Re: OACC Staffing 13 The Parole Agent III is a designated subject matter expert who can fill in for th e deputy commissioner until this position is filled. 14 See Defendant Compliance Reports 15 See Plaintiffs’ Corrected Compliance Assessment Report Response, Sept. 27,2012, p. 108. 16 See Plaintiff’s Corrected Compliance Assessment Report Response, 9-27-12, p. 109-110 17 See OSM 5th Report, p.5; OSM 6th Report, p.56; and OSM 7th Report. p. 55. 18 For efficiency’s sake, there have been many times when meet and confer sessions in this case were held by phone in their entirety and many times when some members participated by phone. 19 The y ounger generation uses many innovative ways to solicit feedback and t o reach agreement. Skype, Google ch at ro oms, an d t witter are u sed by o rganizations in various ways to reach ag reement. Su ch mechanisms are likely to be used more in the future. 20 It is important to remember that most supervisors are in the same office location as their direct reports, the parole agents. 21 OSM Analysis Request, p.2.
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22 In December of 2011, timeliness for this step fell just below 85%. See Compliance Assessment Report, p. 80. 23 See each report from OSM 2d Report forward. ; DAPO Timeliness Summary Jan. through Jun, 2012; NOR Step Result Summary for each of Jan. through Jun, 2012
In recent Rounds, service was delayed much more often for populations such as extradition cases and not in custody proceedings. (see, e.g., OSM 12th Report). It is of concern that it is no longer possible to review the timeliness of those populations to see whether it is improving. On the other hand, in the 12th Round, these populations, taken together, constituted just over 2% of the total holds, and the late cases in that population totaled less than 0.5% of the notice services overall. 24 NOR Step Result Summary for each of Jan. through Jun, 2012 25 See, e.g., OSM 2d, 3d, 5th, 6th, 7th, 8th and 12th Reports 26 Facially, data reports show 17,585 fewer Notice of Rights service actions than actions at the Referral step. DAPO Step Summary Jan. through Jun. 2012. In the Valdivia process design, the Referral step occurs after service of the notice of rights and charges, so this could suggest that some service is being missed.
In practice, however, the Referral step sometimes occurs before service and sometimes afterward. If the Referral decision disposed of a case before notice was due, the absence of notice is not a problem. Defendants provided a supplemental analysis of when relevant cases closed. (see Dec. 17, 2012 email from C. Buffleben). Of the 22,263 cases where the parolee was not served notice, 12,863 were disposed of as of the time notice was due. Taken together with notices completed in the Round (49,053), that would narrow the cases not served to 6,161.
In this analysis, Defendants also provided figures for unserved parolees whose cases were disposed of at subsequent process steps before hearing. This suggests that staff knew notice would be unnecessary as they were working toward continuing the persons on parole, dismissing the cases, or placing the persons in remedial sanctions, or that the persons were not harmed because they did not proceed to hearing. These figures exceeded the 6,161 cases above. Defendants found that 2.37% of cases – 527 persons -- reached probable cause hearing without having been served.
While not all numbers match between the different sources, this is a strong indication that cases are disposed of before requiring a notice, parolees are served, or cases proceed a few additional days without service but service is made moot because the case does not proceed to hearing. 27 Compliance Assessment Report; Special Master’s observations 28 OSM 11th Report, p. 25. The broader dispute concerning added charges, particularly involving arrests by other agencies will be discussed below. 29 Defendants’ budget-related travel ban resulted in only one self-monitoring report for the first six months of 2012. 30 Plain tiffs’ m onitoring repo rts p resent m any in terpretation prob lems. F or ex ample, th ere is n o standard reporting m echanism, w hich m eans diffe rent firm s an d s ometimes aut hors wi thin a firm, defi ne t erms slightly di fferently, ha ve different reporting f ormats, an d sometimes i nclude u nderlying documents a nd other times not. In short, it is not comparing apples to apples. Some authors are very articulate about why they make an assumption while others are not. Some exhibits fail to include the very documentation needed to affirm a conclusi on. On a few occasions, cases are referred to in exhibits that are not th ere. Ironically, Plaintiffs’ reports suffer from the very problems that they raise about t he Defendants’ reports that they are monitoring. Defendants’ one report was excellent. Defendants provide clear documentation for assertions and have the advantage of an audit tool that assesses the exact same elements in eac h observation or file review. 31 Plaintiffs allege that they did not receive 1502b documentation for all cases and thus there is an average of 29 cases. The Special Master can not verify this allegation. 32 The conclusions reached by the Special Master are questionable because of the many problems with lack of adequate information in the monitoring reports to support an allegation. 33 The Special Master spoke with Mary Swanson on August 8th and 17th, 2012. Ms. Swanson investigated this issue and the issue of added charges for the Special Master. 34 The Special Master always assum es a tec hnical violation should be addressed in notice of c harges. The Master attempted to discern from existing documentation in the monitoring report whether added criminal charges we re appropriate. In the face of no evide nce to the cont rary, t he Master ass umes these added charges are legitimate.
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35 There may be a very small percentage of times when the agent of record is not available and a duty officer completes the notice of rights and if the case documentation is not sufficient may not know a technical violation has occurred. Good record keeping is required to ensure this occurs in a very low number of instances 36 Document with the electronic file name OSM Analysis Request.pdf, pp. 3-5. 37 Id., p. 4. 38 Monitors were able to observe 15 serves onsite. Defendants’ data reflects that close to 48,932 serves took place during that time. 39 OSM 11th Report 40 Valdivia Remedial Plan, p. 4. 41 OSM 11th Report, p. 35. 42 This issue was discussed in OSM 11th and 12th Reports. 43 OSM 11th Report, p. 37. 44 OSM 12th Report, p. 47. 45 Date Case Assigned Compliance Reports, January 2012 thru September 2012. Percentages are rounded. 46 See, e.g., OSM 2d, 3d, 4th and 7th Reports 47 Cases Missing 1073 and Cases Missing Source Documents, each of Jan. 2012 through Jul. 2012 48 The phenomenon of “they don’t know what they don’t know.” 49 Informal communications with the parties 50 Compliance Assessment Report, p. 77. See electronic folder titled Expedited PCHs for data. 51 Valdivia v. Davis, 206 F. Supp. 2d 1068 52 See, for example, OSM 2d, 3d, 4th and 7th Reports 53 Informal communication with CalPAP 54 See OSM reports from the 4th Round forward; Telephonic Probable Cause Hearing Summary Jan-Apr and May-July 2012 55 See, e.g., the 18 objections concerning jurisdiction contained in Other Objections Reports for each of Jan. through Aug. 2012 56 Documents with the electronic file names PC Disputed (01.01.12 – 06.30.12).xlsx and PC Disputed (07.01.12 – 08.31.12).xlsx compared to the total probable cause hearings found in Board of Parole Hearings Step Summary, Jan. through Aug. 2012 57 See, e.g., the 9 objections alleging bias contained in Other Objections Reports for each of Jan. through Aug. 2012; Compliance Assessment Report 58 CalPAP surveyed its attorneys, who consistently identified a small, finite number of hearing officers with such problematic practices. They constitute 7% of the current hearing officer pool, whose numbers were recently identified as 86 in informal communications with Board executives. 59 For the analysis that follows, the Special Master studied a 15% sample, chosen by random selection, of all cases identified by CalPAP as having challenged probable cause during hearings held between Jan. and Aug. 2012. The total of cases reviewed was 1,156. See Documents with the electronic file names PC Disputed (01.01.12 – 06.30.12).xlsx and PC Disputed (07.01.12 – 08.31.12).xlsx and the individual records in the electronic file titled PCH Arguments 60 Email communication of analysis, C. Buffleben, Dec. 17, 2012 61 In the study, this occurred in 9% of cases in which attorneys reported that probable cause was challenged 62 A word about the references in this report to Decision Review submissions and Objections during hearings: Defendants often cite to these numbers to demonstrate the frequency of alleged problems and the scope and likelihood of harm stemming from them. These sources are particularly strong where it is the norm to object, and where it involves the type of complaint that normally surfaces.
There are also some limitations, which should inform how this information is used. Parolee defense attorneys are principally concerned with the parolee’s sentence; once that is decided, matters of process in how that outcome was achieved may be seen as moot for their role. Filing a complaint may surface a system unfairness, but where a rehearing can also jeopardize undoing a client’s outcome, an attorney’s obligation is to the client. Additionally, both attorneys and parolees may not take advantage of complaint systems where they believe the system operates with foregone conclusions and therefore it is futile, they are unfamiliar with its existence or procedures, they are fatalistic, they see other issues as more important, or where they do not see it as their role to fix the revocation system.
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Thus, the number of complaints is a good indicator about many issues, but not an exclusive measure, and it should be taken into account along with other information sources. The system’s handling of the complaints received is also an important reflection of the system’s ability to remedy issues. 63 Compliance Assessment Report 64 Compliance Assessment Report 65 The Special Master reviewed revocation hearing records for a subset of the parolees in the sample selected for the study of probable cause challenges described supra. 66 Compliance Assessment Report; Special Master’s observations 67 Without reviews, the parties do not know whether parolees receive their documents consistently or inconsistently. Plaintiffs are particularly concerned that parolees have their documents in the event they need to advocate with jail staff that their release dates have passed, a necessity that has been reported in some cases. 68 Compliance Assessment Report 69 Valdivia v. Davis, 206 F. Supp. 2d 1068 70 Board of Parole Hearings Timeliness Summary by County, Jan. through Jun. 2012 71 See all OSM Reports, with OSM 4th Report showing the peak activity 72 Board of Parole Hearings Timeliness Summary by County, Jan. through Jun. 2012. This shows a higher percent of timely cases, but this includes all postponements if the first attempted hearing was timely and the postponement was for good cause. It is more appropriate to remove that category of cases for a separate determination of whether they were timely; see discussion supra.
Far less than 1% of cases were excluded from timeliness calculations as Defendants found there were obvious data entry errors, as indicated by negative numbers, or the entry was for administrative purposes and was not an actual hearing. The Special Master is confident that these exclusions are appropriate. 73 It is possible that some cases were originallyscheduled early enough that the rescheduled hearing occurred within timeframes. It is more likely that postponements carry cases beyond 13 business days. Such an analysis is impractical at this time but could be undertaken in the future to determine the clearly timely population with more precision. 74 Board of Parole Hearings Timeliness Summary by County, Jan. through Jun. 2012 75 Compliance Assessment Report 76 Predictably, this is the case in some instances. There is no deadline for the “settlement conferences” offered in the community, and sometimes they are recorded in the information system on probable cause hearing records. This would make some proceedings appear late according to probable cause timeframes when those do not apply.
An initial look at probable cause hearing timeliness data does not indicate that problem in two counties, but Shasta county’s probable cause hearings appear late at a rate of 15%, much higher than the system average. Data does suggest an impact at the revocation hearing level, with Fresno county’s hearings being late 16% of the time and San Joaquin county’s being late 32% of the time, albeit at a much lower volume. 77 Order Jul. 23, 2003. This order followed extended deliberation about the appropriate length of time. 78 The interpretation of this agreement was disputed for some time. Originally, the Defendants understood it to be 13 business days and Plaintiffs understood it to be 10 business days after actual service of notice, which could take anywhere from 1 to 3 business days. The system has been operating based on Defendants’ view since at least 2006, and it is the Special Master’s belief that the parties have accepted this definition. 79 Order Jul. 23, 2003 80 Sample of hearing records drawn from Closed Case Summary – Good Cause Postponement and Closed Case Summary – Not Good Cause Postponement for each of Jan. through Apr. 2012; Board of Parole Hearings Non-Multiple Postponement Summary, PCH, and related detail reports, for each of Jan. through Jun. 2012, and analogous reports for Multiple Postponements 81 For example, the Special Master reviewed 460 postponed probable cause hearings, which constitutes ¼ of the postponements in the first half of 2012. Among them, 77% were held more than two days after postponement, which would be the 21-day mark if the original hearings were scheduled on the original deadline. 82 Valdivia v. Davis, 206 F. Supp. 2d 1068, citing Defendants’ Statement of Undisputed Facts 83 Closed Case Summary and Closed Case Summary -Valdivia Timeliness Rules for each of Jan. through Sept. 2012, Proba ble Cause Hearing C ompliance Report for each of Ja n. through Oct. 2012, PC H Step
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Result Summary for each of Jan. through Oct. 2012. This does not appear to be accounted for by late cases being compared to a reduced number of probable cause hearings alone. 84 Hearing Directive 12/01, Reduction of Revocation Periods Based on Delays in Revocation Processing 85 Board of Parole Hearings Remedy Report, Jan.-Jun. 2012; 85 Board of Parole Hearings Timeliness Summary by County, Jan. through Jun. 2012 86 The times to hearing ranged from 21 days to 135 days. The latter was one example where time was waived for a portion of that period, but there were delays of an additional 57 days beyond the waiver. The delay was taken into account in sentencing in that instance. The total sample was 43 cases; three were thrown out as caused by hospitalization or attorney actions throughout the wait. Two of the remaining cases were delayed as described, but took optional waivers at their hearings so do not appear to have been harmed.
Sample identified from Closed Case Summary – Good Cause Postponement and Closed Case Summary – Not Good Cause Postponement for each of Jan. through Apr. 2012. 87 Hearing Directive 10/02 – Optional Waiver Reviews – Revised Procedure 88 Board of Parole Hearings Step Summary Jan. through Jun. 2012. Compare, e.g., Parolee Activated Optional Waiver Aug through Dec. 2010, showing 2,608 cases for a shorter period. 89 Board of Parole Hearings Step Result Summary OWR for each of Jan. through Jun. 2012. There were 47 postponements, or 7% of this already small population. 90 See OSM 5th, 6th and 7th Reports 91 Board of Parole Hearings Timeliness Summary by County, Jan. through Jun. 2012. The actual number is somewhat lower as this total includes interstate cases, who are not subject to Valdivia requirements, and some “settlement conferences” were recorded on revocation hearing records. Both of these groups are likely to be small and have little effect on the aggregate numbers. The number shown on the report is 2,027. The Special Master has reduced that number by the 111 interstate revocation hearings that came to his attention, so the unit for analysis is 1,916. There may be others but, as indicated, that group is likely small. 92 See Closed Case Summary Aug. through Dec. 2011 and previous OSM Reports 93 Compliance Assessment Report; previous OSM Reports 94 Other Objections Reports for each of Jan. through Aug. 2012; compare to the same reports provided with OSM 12th Report 95 There were five such objections apparent. Other Objections Reports for each of Jan. through Aug. 2012 96 Compliance Assessment Report identified 81 relevant objections over a 39-month period. 97 Compliance Assessment Report; Special Master’s observations; informal communications with parties and CalPAP 98 See Other Objections Reports from at least 2008 forward, OSM Reports 99 See, e.g., OSM 12th Report 100 Compliance Assessment Report 101 For that reason, the parties typically refer to the handling of confrontation rights as the Comito issue. The Special Master will adopt that convention in this report. 102 Compliance Assessment Report; Special Master’s observations 103 Comito Objections Denied Report and Comito Objections Granted Report for each of Jan. through Jun. 2012. When controlling for multiple objections in some hearings, the total number of cases affected by Comito objections was 234, by the Special Master’s calculation. Board of Parole Hearings Timeliness Summary by County, Jan. through Jun. 2012, adjusted as above, shows 1,916 cases that went to revocation hearing. The total number of revocation hearings may be further reduced by a likely small, but unknown, number of interstate cases and settlement conferences. 104 A total of 40 hearings were reviewed, which totals at least 17% of the hearings with Comito objections. There were 53 hearing officers who presided over hearings that contained Comito objections; the sample included 38 of them. At Defendants’ request, all sampled cases involved a denied objection because of the potential for harm to the parolee. 105 In the remaining half, the hearing officer used the factors, explicitly or implicitly, and conducted a balancing. In two cases, the hearing officer did so on the written record but not aloud; these were considered compliant. 106 There were a small number of exceptions. One likely worked to the parolee’s advantage: although the test was not applied and the hearing officer postponed the hearing, it was rescheduled within timeframes. In
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one case the problematic practice was different: the hearing officer discussed all factors but allowed the evidence in on the basis that the hearsay corroborated itself. 107 As discussed above, there were approximately 1,916 revocation hearings in the relevant period, 234 of which involved confrontation rights objections. Since the study found that half of the sample did not apply the balancing test, half of 234 is 117, which is 6% of all revocation hearings held. 108 Compliance Assessment Report; 109 The Special Master’s review agreed. 110 Compliance Assessment Report 111 See OSM 6th and 7th Reports 112 Board of Parole Hearings Timeliness Report Jan. through Jun. 2012 shows 1,871 hearings timely, less the postponed hearings whose timing is uncertain depending on the questions to be resolved. However, it appears from Board of Parole Hearings Step Result Detail, monthly from Jan. through Jun. 2012, that timeliness is calculated at 35 days. Once the cases that closed between 35 and 46 days are removed, the total timely cases rise to 86%. This analysis does not adjust for interstate cases as their timeliness is unknown at this time. 113 Board of Parole Hearings Remedy Report Jan. through Jun. 2012 114 Anecdotally, one or two hearings have come to the Special Master’s attention in which staff noted that the hearing could not be held within 50 miles because transportation was not possible across counties. The Special Master does not have any information suggesting that this is widespread. 115 In the context of probable cause hearings, the opinion also describes the necessary contents of a written record as “The hearing officer shall have the duty of making a summary, or digest, of what occurs at the hearing in terms of the responses of the parolee and the substance of the documents or evidence given in support of parole revocation and of the parolee's position.” It is not entirely clear whether the Morrissey court intended to distinguish the contents of the two hearings’ records, but there is a reasonable argument to that effect. 116 The Special Master reviewed 412 records chosen by random selection; this constitutes 22% of the revocation hearings. Records where the parolee stipulated or admitted to good cause were considered compliant without a factual description. See electronic folder titled RevH Factual Basis 117 Other Objections Reports for each of Jan. through Aug. 2012 118 CalPAP data shows 10 such objecttions over an eight-month period, meaning they occurred in less than ½% of revocation hearings. The Special Master did not review the hearing records for the circumstances of these denials. Anecdotally, four came to the Special Master’s attention during hearing reviews for other purposes. In three cases, the denial was appropriate. In the third, the witness’ failure to appear was described as exigent and the reason for the denial was not stated. 119 Compliance Assessment Report; Plaintiffs’ Corrected Compliance Assessment Report Response 120 See OSM 9th, 10th, 11th and 12th Reports 121 Informal communication with Defendants Nov. 16, 2012 122 Data shows a handful more cases in September and October 2012. Reportedly, these are not genuinely revocation extensions, but a group of prisoners set to release to parole who are retained in custody because of refusing to sign paperwork. These prisoners have not attained the status of parolees, and thus their parole is not being revoked. Their cases are captured in Defendants’ revocation extension data because there is not a tracking mechanism for their separate circumstance. See document with electronic file name Revocation Extension Cases.docx 123 OSM 8th Report 124 OSM 9th Report 125 OSM 12th Report 126 Compliance Assessment Report, p.62 127 Plaintiffs’ Corrected Compliance Assessment Report Response, 9-27-12, 720-1/pdf, p. 92-93 128 Id; Compliance Assessment Report, pp. 66-67 129 Id., p. 67 130 The Office of Offender Services (OOS) reports show the number of parolees placed with disabilities. The same is true for placements for women. See document with the electronic file name Report for Special Masters Jan 2012 to Sept 2012 revised.xls. 131 See document with the electronic file name OSM Analysis Request.pdf, p. 2 and Compliance Assessment Report, pp. 69-73
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132 Data is taken from the Continuing Care Reports for the last week of each month. 133 The closure of the jail-based program was a cost savings measure because the jails were paid whether the program was in use or not. The high rejection rate of the program made it an appropriate choice for elimination. 134 IDCTP Pass Issuance Policy e-mail 135 Conversation between Roberto Mata and Deputy Special Master Campbell on October 31, 2012. The changes in population are being assessed and planning is beginning to determine how best to serve the projected parolee population. 136 Most information in this section is gathered from Compliance Assessment Report pp. 56-61, and from Special Master observations and party communications long-term 137 Plaintiffs’ Corrected Compliance Assessment Report Response 138 Order Granting Plaintiffs’ Renewed Motion to Require Defendants to Track and Accommodate Needs of Armstrong Class Members Housed in County Jails, Ensure Access to a Grievance Procedure, and to Enforce 2001 Permanent Injunction (Jan. 13, 2012, Docket No. 1974) and related orders provided as Exhibit K to Plaintiffs’ Corrected Compliance Assessment Report Response 139 Plain tiffs d id r eview and pr ovide inpu t on th ese forms. See doc ument with the electronic file na me Status of disputed items meet and c onfers 4-28-11 clean copy.doc for an example of the parties working together to reach agreement. 140 Plaintiffs’ Corrected Compliance Assessment Report Response, 9-27-12, 720-1.pdf, pp. 91-92. 141 See e-mail Translated Forms, November 13, 2012 from Rhonda Skipper Dotta, Chief Deputy 142 This was 13 of the 89 requests made . Correspondence from S. Huey to K. Riley, July 1, 2009 143 See OSM 8th Report 144 Correspondence between K. Mantoan and K. Riley dated Feb. 9, 2012, Mar. 14, 2012, May 23, 2012, and June 11, 2012; Compliance Assessment Report 145 Compliance Assessment Report 146 Compliance Assessment Report, p. 92. 147 See document with t he elect ronic file name Status of di sputed i tems meet and conf ers 4- 28-11 clean copy.doc 148 OSM 11th Report, p. 5. 149 Id. 150 Id., p. 20. 151 Id., p. 20-22. 152 OSM 12th Report, p. 9. 153 See document with the electronic file name BPH Staffing Update-Nov 2012 154 Document with the electronic file name Valdivia Paragraph 27 log Jan – June 2012.pdf. 155 See document with the electronic file name Ex.6.9 2012-06022 Valdivia Paragraph 27 log updated 62212 (final).pdf. for the log from 2009 thru 2012. 156 Plaintiffs’ Corrected Compliance Assessment Report Response, 9-27-12, 720-1.pdf, p. 106.
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 1

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

8

EASTERN DISTRICT OF CALIFORNIA

9

10 JERRY VALDIVIA, ALFRED YANCY, and HOSSIE WELCH, on their own
11 behalf and on behalf of the class of all persons similarly situated,
12 Plaintiffs,
13 v.
14 EDMUND G. BROWN, JR., Governor of
15 the State of California, et al.,

NO. CIV. S-94-671 LKK/GGH O R D E R

16

Defendants.

/

17

18

In 1994, plaintiffs commenced this action, which challenged

19 the constitutionality of California’s then-existing parole

20 revocation system. In 2011, California began enacting legislation,

21 commonly known as “Realignment,” that significantly altered the

22 state’s criminal justice system. The question before this court is

23 whether, in light of Realignment, this lawsuit remains the proper

24 vehicle for ensuring that parolees receive Constitutionally-

25 guaranteed due process protections. Having carefully considered the

26 question, the court concludes that this case became moot as of July

1

1 1, 2013, when the new parole revocation system was scheduled to go

2 fully into effect. Accordingly, for the reasons set forth below,

3 the plaintiff class will be decertified and this matter dismissed.

4 I. BACKGROUND

5

A. History of the litigation

6

On May 2, 1994, plaintiffs filed the instant lawsuit,

7 challenging California’s parole revocation procedures under the

8 Fourteenth Amendment. Plaintiffs’ initial complaint alleged that

9 “[t]he Defendants and by and through the Department of

10 Corrections . . . continue a practice of revocation of parole and

11 remand of parolees, in violation of law as alleged herein, which

12 practice has been continuing for many years.” (Complaint ¶ 48, ECF

13 No. 1.) Class certification was sought on the grounds that “[i]n

14 general, the common questions of law and fact involve the summary

15 remand to prison of parolees without due consideration of the right

16 to counsel and without due process of law, in violation of Gagnon

17 v. Scarpelli, [411 U.S. 778 (1973)] and Morrissey v. Brewer, [408

18 U.S. 471 (1972)].” (Id. ¶ 58.)

19

On December 1, 1994, the court certified a plaintiff class

20 consisting of California parolees (1) who are at large; (2) who are

21 in custody as alleged parole violators awaiting revocation of their

22 parole status; or (3) who are in custody having been found in

23 violation of parole. (Order, ECF No. 76)

24

The parties engaged in discovery for several years thereafter.

25 On June 13, 2002, the court granted partial summary judgment in

26 favor of plaintiffs, finding that California’s parole revocation

2

1 hearing system failed to safeguard plaintiffs’ procedural due

2 process rights under Morrissey, 408 U.S. at 487–90, and Gagno,n 411

3 U.S. at 786. The court’s order emphasized that, in order to ensure

4 adequate due process, probable cause hearings must be both accurate

5 and promptly-held. See Valdivia v. Davis , 206 F. Supp. 2d 1068

6 (E.D. Cal. 2002).

7

Four months later, the court ordered defendants to file a

8 proposed remedial plan

to address identified due process

9 violations. The court also directed the parties to meet and confer

10 so that defendants could adapt the proposed remedial plan into a

11 proposed remedial order to be presented to the court. (Order, Oct.

12 18, 2002, ECF No. 742.)

13

After some delay, defendants filed a proposed remedial plan,

14 to which plaintiffs objected. (ECF No. 784.) At the hearing on

15 plaintiff’s objections, defendants indicated “that they would

16 appreciate guidance from the court on precisely what the

17 Constitution requires with respect to the timing and substance of

18 the preliminary parole revocation hearing.” (Order at 3, July 23,

19 2003, ECF No. 796.) In a subsequent order, the court initially

20 expressed its hesitation at so doing, in light of the principle

21 that “due process is flexible and calls for such procedural

22 protections as the particular situation demands.” Morrissey , 408

23 U.S. at 481. Nevertheless, in order to facilitate the development

24 of an adequate remedy, the court undertook a comprehensive review

25 of the case law surrounding the promptness of probable cause

26 hearings in the parole context, as well as in the context of other

3

1 constitutional deprivations, and advised as follows:

2

[A] period of ten days strikes a reasonable balance

between inevitable administrative delays and the

3

state’s interest in conducting its parole system, on

the one hand, and the liberty interests of parolees,

4

on the other. I conclude that the Constitution simply

does not tolerate the state’s detaining parolees for

5

over ten days, with all the attendant disruptions such

detention entails, without affording a preliminary

6

hearing to determine whether there is probable cause

for the detention. (Id. at 13.)1

7

8 The court then set forth the following minimum standards for

9 probable cause hearings: that they be conducted by a neutral

10 decisionmaker, that parolees have an opportunity to both present

11 documentary evidence and witnesses, and to cross-examine adverse

12 witnesses, and that the hearing’s results be documented in a

13 written report. Alternatively, defendants could hold a unified

14 hearing that was sufficiently prompt and the content of which met

15 the due process requirements for both probable cause and revocation

16 hearings. (Id. at 15-16.)

17

Ultimately, the parties filed a stipulated order for permanent

18

19

1 It absolutely does not follow from this determination that

detention for periods of ten days or less, without notice and a 20 preliminary hearing, is constitutionally adequate in all

circumstances. The ten day limit was a highly context-specific 21 determination; per Morissey, 408 U.S. at 481, it was the level of

“procedural protections as the particular situation demand[ed].” 22 The principal consideration in determining whether notice and

hearing is sufficiently timely is that “[t]he effect of detention 23 itself, in its disruption of the parolee’s family relationship,

job, and life, is sufficiently significant [so as] to require” 24 procedural due process safeguards. Valdivia, 206 F. Supp. 2d at

1078. “The process due must include procedures which will prevent 25 parole from being revoked because of ‘erroneous information or

because of an erroneous evaluation.’” Id. at 1074 (quoting 26 Morrissey, 408 U.S. at 484).

4

1 injunctive relief, which the court entered. (Order, March 8, 2004

2 (“Injunction”), ECF No. 1034.) The parties to the Injunction were

3 the previously-certified plaintiff class and “the [defendant] state

4 officials responsible for the policies and procedures by which

5 California conducts parole revocation proceedings.” (Injunction

6 ¶ 8.) All of these defendants were members of the state’s executive

7 branch. Critical provisions of the Injunction include:

8

1. Notice of charges and rights, to be served on parolees

9

not later than three business days from the placement

10

of a parole hold. (Injunction ¶ 11(b)(iii).)

11

2. Probable cause hearings, to be held no later than 10

12

business days after parolees are served notice of

13

charges and rights. (Injunction ¶ 11(d).)

14

3. Appointment of counsel for all parolees at the

15

beginning of the Return to Custody Assessment2 stage

16

of the revocation proceedings. (Injunction ¶

17

11(b)(i).)

18

4. Expedited probable cause hearings, if appointed

19

counsel makes a sufficient offer of proof of a

20

complete defense to all parole violation charges.

21

(Injunction ¶ 11(b)(i).)

22

5. The ability of parolees’ counsel to subpoena and

23

present witnesses and evidence to the same extent and

24
2 “Return to Custody Assessment” refers to “the practice by 25 which Defendants offer a parolee a specific disposition in return
for a waiver of the parolee’s right to a preliminary or final 26 revocation hearing, or both.” (Injunction ¶ 9(d).)

5

1

under the same terms as the state. (Injunction ¶ 21.)

2

6. Adequate allowance, at probable cause hearings, for

3

parolees to present evidence to defend or mitigate

4

against the charges and proposed disposition. Such

5

evidence may be presented through documentary evidence

6

or through the charged parolee’s testimony, either or

7

both of which may include hearsay testimony.

8

(Injunction ¶ 22.)

9

7. Limitations on the use of hearsay evidence at hearing

10

in light of parolees’ confrontation rights, as

11

provided for in United States v. Comito, 177 F.3d 1166

12

(9th Cir. 1999). (Injunction ¶ 24.)

13

8. Parole revocation hearings to be held no later than 35

14

calendar days from the date of placement of a parole

15

hold. (Injunction ¶¶ 11(b)(iv), 23.)

16 The Injunction also addressed topics such as provision of

17 assistance for parolees with communicative or cognitive

18 impairments, training of appointed counsel, and the handling of

19 confidential information. The Injunction does not specify an end

20 date for court supervision, providing instead that “[t]he Court

21 shall retain jurisdiction to enforce the terms of this Order. The

22 Court shall have the power to enforce [these terms] through

23 specific performance and all other remedies permitted by law or

24 equity.” (Injunction ¶ 28.)

25

Defendants subsequently moved, successfully, for the

26 appointment of a Special Master, and on December 16, 2005, the

6

1 court appointed Chase Riveland to that position. (ECF Nos. 1198,

2 1213, 1245.) The Special Master has subsequently filed thirteen

3 reports with the court addressing implementation of the Valdivia

4 Injunction, as well as the court’s subsequent orders herein. (ECF

5 Nos. 1302, 1335, 1388, 1479, 1483, 1539, 1570, 1585, 1647, 1730, 6 1750, 1783.)3

7

B. Proposition 9

8

On November 4, 2008, California voters passed Proposition 9,

9 entitled “Victims’ Bill of Rights Act of 2008: Marsy’s Law.”

10 Proposition 9’s amendments to the California Penal Code altered a

11 number of the parameters for the parole revocation system that had

12 been mandated by the Injunction. Plaintiffs moved to enjoin

13 enforcement of portions of Penal Code § 3044 (enacted by Prop. 9)

14 as conflicting with provisions of the Injunction; defendants cross-

15 moved to modify the Injunction to conform to Proposition 9.

16 Valdivia v. Schwarzenegger, 603 F. Supp. 2d 1275 (E.D. Cal. 2009).

17 After hearing, the court denied defendants’ motion, and granted

18 plaintiffs’ motion in substantial part. Id. On appeal, the Ninth

19 Circuit held that the court had erred by failing to make an

20 “express determination that any aspect of the California parole

21 revocation procedures, as modified by Proposition 9, violated

22 constitutional rights, or that the Injunction was necessary to

23 remedy a constitutional violation . . . .” Valdivia v.

24 Schwarzenegger, 599 F.3d 984, 995 (9th Cir. 2010). On remand, the

25
3 The Special Master’s Ninth Report does not appear to have 26 been docketed.

7

1 court determined that the following aspects of Cal. Penal Code §

2 3044, as enacted by Section 5.3 of Proposition 9, were

3 unconstitutional:

4

(1) Holding probable cause hearings no later than 15 days

5

after the parolee’s arrest for parole violations “did not

6

guarantee a prompt probable cause hearing with all of the

7

minimum process set forth in Morrisey.” Valdivia v. Brown,

8

No. S-94-671-LKK-GGH, 2012 WL 219342 at *6, 2012 U.S. Dist.

9

LEXIS 8092 at *21 (E.D. Cal. Jan. 24, 2012).

10

11

(2) Providing parolees with counsel on a case-by-case

12

basis, and even then, only for those parolees who were both

13

indigent and “incapable of speaking effectively in [their]

14

own defense,” both “deprived [parolees] of the right to

15

notice of the right to counsel” and failed, under Gagnon,

16

to provide for “a presumptive right to counsel when the

17

parolee makes a colorable claim that he has not committed

18

the alleged violations or claims colorable mitigation.”

19

Id., 2012 WL 219342 at *8, 2012 U.S. Dist. LEXIS 8092 at

20

*26. The court also found that ¶ 11(b)(i) of the

21

Injunction, under which all parolees are appointed counsel

22

beginning at the Return to Custody Assessment stage, “is a

23

properly tailored remedy . . . [which] addresses and

24

relates to a Constitutional violation[.]” Id., 2012 WL

25

219342 at *9, 2012 U.S. Dist. LEXIS 8092 at *28.

26

8

1

(3) Modifying the decision criteria for the Board of Parole

2

Hearings (“BPH”), e.g., by “entrust[ing]” BPH “with the

3

safety of victims and the public” and including

4

requirements that BPH “not be influenced by or weigh the

5

state cost or burden associated with just decisions,” was

6

unconstitutional under Morrissey in its violation of

7

parolees’ right to a neutral decisionmaker, and under Brown

8

v. Plata, __ U.S. __, 131 S. Ct. 1910 (2011) in its

9

interference with California’s constitutionally-mandated

10

efforts to reduce its prison population. Id., 2012 WL

11

219342 at *10, 2012 U.S. Dist. LEXIS 8092 at *31-32.

12

13

(4) Finally, allowing the unconditional use of hearsay

14

evidence in parole revocation hearings was

15

unconstitutional, as it did not permit the balancing of

16

“the releasee’s interest in his constitutionally guaranteed

17

right to confrontation against the Government’s good cause

18

for denying it.” Id., 2012 WL 219342 at *11, 2012 U.S.

19

Dist. LEXIS 8092 at *34 (quoting Comito, 177 F.3d at 1170

20

(9th Cir. 1999)).

21 The court ultimately granted plaintiffs’ motion to enforce the

22 Injunction, though it did modify its terms to specify, consonant

23 with Proposition 9, that parole revocation hearings were to be

24 held no later than 45 days after placement of the parole hold.

25 Id., 2012 WL 219342 at *12, 2012 U.S. Dist. LEXIS 8092 at *39.

26 ////

9

1

C. Realignment

2

From the inception of this lawsuit until the present, the

3 California Department of Corrections and Rehabilitation (“CDCR”)

4 has been largely responsible for the parole system’s functioning.

5 BPH, a board operating under the auspices of CDCR, has been

6 responsible for conducting probable cause and parole revocation

7 hearings, and for functions such as issuing arrest warrants for

8 suspected parole violators. CDCR’s Division of Adult Parole

9 Operations (“DAPO”) has overseen much of the rest of the parole

10 system.

11

This system began to change on April 4, 2011, when the

12 Governor signed Assembly Bill 109, entitled “The 2011 Realignment 13 Legislation Addressing Public Safety.” 4 AB 109, inter alia ,

14 transferred substantial responsibilities for the parole system to

15 county authorities, and called for state courts “to perform various

16 parole-related functions, including . . . conducting parole

17 discharge, retention, and revocation proceedings[,] and modifying

18 terms and conditions of parole . . . .” (Memorandum from

19 Administrative Office of the Courts, May 20, 2011, Decl. Ernest

20 Galvan, Ex. 2 at 4, ECF No. 1829-3.) Subsequent legislative 21 enactments5 have narrowed the state co urts’ role to conducting

22 parole revocation proceedings, and have clarified the counties’ and

23
4 Cal. Stats. 2011, ch. 15. 24
5 See, e.g., AB 117, Cal. Stats. 2011, ch. 39; AB 116, Cal. 25 Stats. 2011, ch. 136; AB 17, Cal. Stats. 2011-2012, 1st Ex. Sess.,
ch. 12; AB 1470, Cal. Stats. 2012, Ch. 24; SB 1144, Cal. Stats. 26 2012, ch. 867; SB 1023, Cal. Stats. 2012, ch. 43.

10

1 the state’s respective responsibilities in the post-Realignment

2 parole system. Briefly, beginning on July 1, 2013, this system is

3 expected to function as set out below.

4

DAPO will supervise the parole of individuals convicted of any

5 of the following: (1) serious felonies (as described in Cal. Penal

6 Code § 1192.7(c)), (2) violent felonies (as described in Cal. Penal

7 Code § 667.5), (3) “third strikes,” (4) crimes where the person is

8 classified as a High Risk Sex Offender, and (5) crimes where the

9 person is required, as a condition of parole, to undergo treatment 10 by the Department of Mental Health. Cal. Penal Code § 3000.08(a)6.

11 DAPO will also continue to supervise parolees who were under its

12 supervision prior to July 1, 2013. State courts will be responsible

13 for hearing petitions for parole revocation and imposing parole

14 terms for these individuals. Individuals paroled from life terms

15 in prison will also be under DAPO supervision, and subject to the

16 jurisdiction of BPH for purposes of parole revocation hearings. 17 Cal. Penal Code. § 3000.1.7

18

All other individuals subject to parole will be released to

19 Postrelease Community Supervision (“PRCS”), to be supervised by

20 county probation departments. Cal. Penal Code § 3000.08(b). Those

21 prisoners who were sent to county jails to complete their terms in

22

23

6 All citations to Cal. Penal Code § 3000.08 are to the

version operative on July 1, 2013. 24

7 The parties have long disputed whether so-called “lifers” 25 are members of the Valdivia class. The court has never been called

upon to decide this issue, and finds it unnecessary to do so 26 herein.

11

1 the initial stage of Realignment (which began on October 1, 2011)

2 are similarly subject to PRCS, rather than DAPO parole supervision.

3 (Viera Rose Decl. ¶ 6., ECF No. 1825.) The parties appear to agree

4 that individuals subject to PRCS should not be considered part of 5 the Valdivia class.8 For convenience, the court will use the term

6 “parolee” hereinafter to refer to those individuals subject to DAPO

7 supervision after July 1.

8

If DAPO suspects a parolee of having violated the terms and

9 conditions of parole, it may do one of the following:

10

(1) Return the parolee to custody without a warrant (i.e.,

11

place a “parole hold” on the parolee). Cal. Penal Code

12

§§ 1203.2(a), 3000.08(c), 3056; or

13

(2) Seek a warrant from the state court for the parolee to

14

be returned to custody. Cal. Penal Code §§ 1203.2(a),

15

3000(b)(9)(A), 3000.08(c). The state court has the

16

authority to summarily revoke parole at this stage. Cal.

17

Penal Code § 1203.2(a).

18 Once a parolee is in custody, DAPO determines whether there is

19 probable cause to believe “that [he or she] has committed a

20 violation of law or violated his or her conditions of parole.” Cal.

21 Penal Code § 3000.08(d). If it so finds, DAPO may either apply

22

23

24

8 Defendants explicitly assert that “[i]ndividuals released

to PRCS are not parolees.” (Defendants’ Opening 2, ECF No. 1824.) 25 Plaintiffs implicitly concede this point, as their briefing

addresses those elements of the parole revocation process that 26 remain under the jurisdiction of DAPO and/or BPH.

12

1 intermediate sanctions (including “flash incarceration”9),10 without

2 involvement of the state court, or apply to the state court for

3 parole revocation. Cal. Penal Code § 3000.08(d)-(f). Before seeking

4 parole revocation, DAPO must determine that intermediate sanctions

5 are “not appropriate” for the parolee. Cal. Penal Code

6 § 3000.08(f).

7

DAPO initiates the parole revocation process by filing a

8 petition with the state court, which must include “a written report

9 that contains additional information regarding the petition,

10 including the relevant terms and conditions of parole, the

11 circumstances of the alleged underlying violation, the history and

12 background of the parolee, and any recommendations.” Id.

The

13

14

9 Cal. Penal Code § 3000.08(e) defines “flash incarceration”

as “a period of detention in county jail due to a violation of a 15 parolee’s conditions of parole. The length of the detention period

can range between one and 10 consecutive days.” The statute also 16 provides that “[s]horter, but if necessary more frequent, periods

of detention for violations of a parolee’s conditions of parole 17 shall appropriately punish a parolee while preventing the

disruption in a work or home establishment that typically arises 18 from longer periods of detention.” Id.

19

10 Guillermo Viera Rosa, DAPO’s Acting Associate Director,

avers that, “Despite DAPO’s authority to impose terms of flash 20 incarceration upon parolees under its supervision on or after July

1, 2013, DAPO will not utilize flash incarceration pursuant to 21 Penal Code sections 3000.08 and 1203.2(g).” (Viera Rosa Decl. ¶ 9,

ECF No. 1825.) Plaintiffs attack this averment on the grounds that 22 it is insufficient as a matter of law to foreclose the use of flash

incarceration; as no legislation prohibits DAPO’s use of the 23 sanction, DAPO could use it at any time. See Bell v. City of Boise,

709 F.3d 890 (9th Cir. 2013) (holding that voluntary cessation of 24 challenged activity that could be resumed as soon as case is

dismissed does not moot plaintiffs’ claims for relief). The court 25 need not weigh Mr. Viera Rosa’s declaration, as its decision herein

does not rest on whether DAPO has permanently forsworn flash 26 incarceration.

13

1 parolee must be “informed of his or her right to consult with

2 counsel, and if indigent the right to secure court appointed

3 counsel.” Cal. Penal Code § 1203.2(b)(2). While a hearing on the

4 petition is pending, “a parolee may waive, in writing, his or her

5 right to counsel, admit the parole violation, waive a court

6 hearing, and accept the proposed

parole modifica tion or

7 revocation.” Cal. Penal Code § 3000.08(f); seealso Cal. Penal Code

8 § 1203.2(b)(2) (“Upon the agreement by the supervised person in

9 writing to the specific terms of a modification or termination of

10 a specific term of supervision, any requirement that the supervised

11 person make a personal appearance in court for the purpose of a

12 modification or termination shall be waived”).

13

The revocation hearing is to be conducted by the superior

14 court, specifically, a “judge, magistrate, or revocation hearing

15 officer described in Section 71622.5 of the Government Code.” Cal.

16 Penal Code § 1203.2(f). The statutory scheme does not prescribe a

17 time frame in which the revocation hearing must be held. Upon

18 finding that a parolee has violated parole conditions, the court

19 has a number of alternatives, including revoking parole, returning

20 the parolee to parole supervision with a modification of parole

21 conditions (including a period of incarceration), referring the

22 parolee to an evidence-based program such as a reentry court, or

23 placing the parolee under electronic monitoring. Cal. Penal Code

24 §§ 3000.08(f), 3004(a). With certain exceptions,

e.g., for

25 individuals previously sentenced to life terms, pa rolees whose

26 parole is revoked or modified are incarcerated in county jail. Cal.

14

1 Penal Code §§ 3000.08(f), (h).

2

BPH’s responsibilities after July 1, 2013 include:

3

• Determining inmate parole eligibility. Cal. Penal Code

4

§§ 3000, 3040.

5

• For parolees arrested pursuant to warrants issued by

6

BPH before July 1, 2013, reviewing their cases before

7

DAPO may file a petition with the court to revoke

8

their parole. Cal. Penal Code § 3000(b)(9)(B).

9

• If, at a revocation hearing, the state court

10

determines that a parolee (i) has violated the law or

11

the terms of his/her parole, and (ii) was previously

12

sentenced to an indeterminate life sentence or a

13

determinate sentence for certain sex crimes, BPH

14

(rather than the court) has jurisdiction to determine

15

how long the parolee will be incarcerated. Cal. Penal

16

Code §§ 3000(b)(4), 3000.1, 3000.08(h).

17

D. Current Order

18

Upon initial review, it appeared to the court that the post-

19 Realignment parole revocation system was sufficiently different

20 from the system addressed by Valdivia so as to implicate mootness

21 concerns. Accordingly, on May 6, 2013, the court issued an order

22 directing the parties to brief the following issues:

23

(a) As of July 1, 2013, which elements of the parole

system that were formerly the exclusive responsibility

24

of defendants will now be the exclusive responsibility

of county authorities and/or the state judiciary?

25

(b) As of July 1, 2013, which elements of the parole

26

system that were formerly the exclusive responsibility

15

1

of defendants will now be the shared responsibility of

defendants, county authorities, and the state

2

judiciary? What will defendants’, county authorities’,

and the state judiciary’s respective responsibilities

3

be as to these shared elements?

4

(c) Will defendants bear responsibility for elements

of the parole system that are newly-created by

5

Realignment, such as “flash incarceration”?

6

(d) Is Valdivia moot as a result of Realignment?

7

(e) If Valdivia is not moot, in what ways should the

class definition and/or the Valdivia Remedy be altered

8

to reflect Realignment’s changes to the parole system?

(Order, ECF No. 1823.)

9

10 The parties filed opening briefs on May 28, 2013, and reply briefs

11 on June 11, 2013, together with supporting materials.

12

Defendants’ position is that the post-July 1, 2013 parole

13 revocation system is so different from the prior system as to

14 require the plaintiff class to be decertified, and this case

15 dismissed. Defendants argue for dismissal on

the grounds of

16 standing, mootness, and/or abstention.

17

Plaintiffs counter that significant elements of the parole

18 system remain under defendants’ control, and accordingly, the court

19 should continue to enforce those provisions of the Injunction which

20 address parolees’ due process rights prior to revocation hearings

21 conducted by the state courts.

22 II. STANDARD

23

A. Justiciability vs. the court’s equitable powers

24

Article III, section 2 of the Constitution limits this court

25 to hearing actual cases and controversies. “An actual controversy

26 must be extant at all stages of review, not merely at the time the

16

1 complaint is filed.” Alvarez v. Smith , 558 U.S. 87, 92 (2009)

2 (citations and internal quotation omitted). “[A] dispute solely

3 about the meaning of a law, abstracted from any concrete actual or

4 threatened harm, falls outside the scope of the constitutional

5 words ‘Cases’ and ‘Controversies.’” Id. at 93.

6

Under Federal Rule of Civil Procedure 12(h)(3), “If the court

7 determines at any time that it lacks subject-matter jurisdiction,

8 the court must dismiss the action.” Accordingly, district courts

9 may sua sponte examine justiciability issues such as standing,

10 mootness, and ripeness. See Bernhardt v. Cnty. of Los Angeles 279

11 F.3d 862, 868 (9th Cir. 2002) (“The district court had both the

12 power and the duty to raise the adequacy of [plaintiff’s] standing

13 sua sponte”).

14

Plaintiffs maintain that it is defendants who bear the

15 responsibility of demonstrating that the Injunction must be

16 modified or terminated, and that they (plaintiffs) must be afforded

17 notice, an opportunity for targeted discovery, and an evidentiary

18 hearing before the court issues a ruling. (Plaintiff’s Reply 13-15,

19 ECF No. 1836.) This argument does not lie, given the court’s

20 responsibility to determine the ongoing justiciability of this

21 action.11

22

The court acknowledges that it has the power to modify a

23

24

11 Incidentally, contra plaintiffs, there is nothing

“improper” about defendants’ request that the court decertify the 25 Valdivia class and dismiss this case. (Plaintiffs’ Reply 13.) The

court’s May 6, 2013 Order directed the parties to brief these very 26 questions.

17

1 consent decree in order to reflect subsequent legislative

2 enactments. See, e.g., Railway Employees v. Wright , 364 U.S. 642

3 (1961) (Harlan, J.) (holding that, in light of amendments to the

4 federal Railway Labor Act that allowed previously-prohibited union

5 shop agreements, district court could modify existing consent

6 decree between non-union employees and railroads). As the Supreme

7 Court observed in Wright:

8

There is also no dispute but that a sound judicial

discretion may call for the modification of the terms

9

of an injunctive decree if the circumstances, whether

of law or fact, obtaining at the time of its issuance

10

have changed, or new ones have since arisen.

11 Id. at 647. See also United States v. Swift & Co., 286 U.S. 106,

12 114 (1932) (Cardozo, J.) (“We are not doubtful of the power of a

13 court of equity to modify an injunction in adaptation to changed

14 conditions, though it was entered by consent . . . . A continuing

15 decree of injunction directed to events to come is subject always

16 to adaptation as events may shape the need”); Taylor v. U.S., 181

17 F.3d 1017, 1021 (9th Cir. 1999) (“[A] court always possesses the

18 power to revisit continuing prospective orders in light of the

19 evolving factual or legal landscape, and to modify or terminate the

20 relief . . .”).

21

Nevertheless, the justiciability inquiry, rooted as it is in

22 Article III of the Constitution, is more fundamental than the

23 court’s equitable power to modify a consent decree. “No principle

24 is more fundamental to the judiciary’s proper role in our system

25 of government than the constitutional limitation of federal-court

26 jurisdiction to actual cases or controversies.” Simon v. E.

18

1 Kentucky Welfare Rights Org., 426 U.S. 26, 37 (1976).

2

Accordingly, the court must first evaluate whether it retains

3 jurisdiction over the post-Realignment parole revocation system;

4 only if it so finds may it consider equitable modifications to the

5 Injunction.

6

B. Standard re: Mootness

7

The Ninth Circuit has set forth the following standard for

8 determining whether an action for injunctive relief is moot:

9

A moot action is one where the issues presented are no

longer ‘live’ or the parties lack a legally cognizable

10

interest in the outcome . . . . The basic question in

determining mootness is whether there is a present

11

controversy as to which effective relief can be

granted. We have pointed out that courts of equity

12

have broad discretion in shaping remedies. Thus, in

deciding a mootness issue, the question is not whether

13

the precise relief sought at the time the application

for an injunction was filed is still available. The

14

question is whether there can be any effective relief.

15 Nw. Envtl. Def. Ctr. v. Gordon, 849 F.2d. 1241, 1244-45 (9th Cir.

16 1988) (internal quotations and citations omitted).

17

A case that at one point presented an actual controversy

18 between the parties may become moot due to subsequent statutory

19 enactments. “A statutory change . . . is usually enough to render

20 a case moot, even if the legislature possesses the power to reenact

21 the statute after the lawsuit is dismissed.” Native Vill. of Noatak

22 v. Blatchford, 38 F.3d 1505, 1510 (9th Cir. 1994).

23

The mere possibility that a party may suffer future harm is

24 insufficient to preserve a case or controversy; the threat of

25 injury must be “real and

immediate,” not “conjectural” or

26 “hypothetical.” See City of Los Angeles v. Lyons, 461 U.S. 95, 102

19

1 (1983); see also City News & Novelty Inc. v. City of Waukesh,a 531

2 U.S. 278, 283 (2001).

3 III. Analysis

4

A. Mootness

5

The court begins by noting that Realignment is a comprehensive

6 legislative enactment. While “it is well settled that ‘a

7 defendant’s voluntary cessation of a challenged practice does not

8 deprive a federal court of its power to determine the legality of

9 the practice[,]’” Friends of the Earth, Inc. v. Laidlaw Envtl.

10 Servs., Inc., 528 U.S. 167, 170 (2000) (quoting City of Mesquite

11 v. Aladdin’s Castle, Inc. , 455 U.S. 283, 289 (1982)), the court

12 cannot discern any voluntary cessation of unlawful conduct of the

13 sort that would generally permit continued jurisdiction. Rather,

14 Realignment appears to be a “statutory change” sufficient to

15 implicate mootness. Noatak, 38 F.3d at 1510.

16

Turning to the mootness inquiry, then, “[t]he question is

17 whether there can be any effective relief.” Gordon , 849 F.2d at

18 1245. The crux of plaintiffs’ argument, in answering this question,

19 is that they “retain a significant interest in their liberty,

20 relationships and connections to their communities, and Defendants

21 retain the ability to endanger those interests based on claimed

22 violations of parole.” (Plaintiffs Reply 1.) This may be true. But

23 it is insufficient, as a matter of law, to justify the court’s

24 continued jurisdiction over this matter.

25

Realignment has established a fundamentally different parole

26 system than the one that the Valdivia plaintiffs challenged. That

20

1 system was largely administrative: DAPO supervised parolees; BPH

2 issued warrants for parolees’ arrest and adjudicated their probable

3 cause and revocation hearings; upon revocation, CDCR would

4 incarcerate parolees in state prisons. As detailed above, DAPO and

5 BPH’s powers and jurisdiction have changed significantly in the new

6 system. For example, DAPO will conduct probable cause

7 determinations (in lieu of BPH’s probable cause hearings).

8 Moreover, the system features major new actors (county jails; the

9 California state courts; public defenders’ offices) who are not

10 parties to this lawsuit. Further, the plaintiff class is

11 significantly reduced, both in raw numbers and as a matter of law,

12 for many categories of felons previously supervised by DAPO are now

13 subject to Post-Release Community Supervision by county probation

14 departments.

15

This is not Proposition 9, which tweaked features of the then-

16 existing system by increasing the time for probable cause hearings,

17 limiting parolees’ right to counsel, altering BPH’s decision

18 criteria at parole hearings, and liberalizing the use of hearsay

19 evidence at these hearings. The court could properly adjudicate the

20 constitutionality of these modifications because Prop. 9 did not

21 change the system of parole revocation itself. The steps in the

22 parole revocation process were the same, the system was still

23 administered by the executive branch through DAPO and BPH, there

24 was no change to the categories of felonies subject to DAPO/BPH

25 jurisdiction, and parolees still returned to state prison when

26 their parole was revoked. None of this is true of the “Realigned”

21

1 post-July 1, 2013 parole revocation system.

2

Plaintiffs nevertheless call for the court to retain

3 jurisdiction, arguing, “This is not a case of mootness, but of

4 changed circumstances that require modifications to the injunctive

5 relief that are suitably tailored to the new circumstances, and

6 that do not ‘create or perpetuate a constitutional violation.’”

7 (Plaintiffs’ Opening 11 (quoting Rufo v. Inmates of Suffolk Cnty.

8 Jail, 502 U.S. 367, 391 (1992)), ECF No. 1829.) They contend that

9 “after Realignment, just as before, essentially the entire parole

10 revocation process prior to the final hearing remains under the

11 control and oversight of the defendants,” particularly DAPO. (Id.

12 9.) Consequently, plaintiffs warn that “Defendants’ plan to abandon

13 [probable cause hearings] would return revocation proceedings to

14 a system that this Court has already expressly deemed

15 unconstitutional.” (Id. 16.)

16

In evaluating these arguments, it is instructive to examine

17 how plaintiffs propose that the Injunction ought to be modified to

18 reflect the post-Realignment system. They write:

19

Plaintiffs agree that the post-July 1, 2013 revocation

system changes will obviate the need for this Court to

20

continue oversight of final revocation hearing-related

functions set forth in Injunction paragraphs 20 (final

21

revocation hearing tapes), 21 (parolee access to

subpoenas and witnesses at final hearings), 23 [as

22

modified] (45-day deadline for final hearings), and 24

(use of hearsay evidence and confrontation rights at

23

final hearings) and related orders. (Plaintiffs’ Reply

12.)

24

25 Nevertheless, while plaintiffs concede that “this Court is entitled 26 to presume that the judges of the state court will observe due

22

1 process in their conduct of final revocation hearings,” they go on

2 to request that the identified paragraphs of the Injunction “be

3 modified only as follows: the re lief with respect to final

4 revocation hearings should be limited to monitoring by Plaintiffs

5 and the Special Master for the purpose of determining whether the

6 Defendants in this action are interfering with or obstructing the

7 independent performance of due process functions by the state

8 courts.” (Plaintiffs’ Opening 13.) Plaintiffs’ proposed order then

9 calls on the court to (i) require defendants to maintain the

10 current system for providing parolees with probable cause hearings

11 (“including the BPH system of hearing officers and the provision

12 of counsel through CalPAP”) until such time as any alternate system

13 is approved by this court, (ii) prohibit defendants from imposing

14 “flash incarceration” on Valdivia class members until adequate due

15 process protections are approved by the court, (iii) require

16 defendants to submit “policies and procedures to ensure that

17 Defendants continue to make remedial sanctions programs available

18 through and including at the final revocation hearings after such

19 hearings are transitioned to the state courts,” and (iv) direct the

20 parties to meet and confer on necessary modifications to the

21 Injunction in light of the court’s findings. (ECF No. 1829-31.)

22

Nothing more clearly demonstrates the mootness of this action

23 than the fact that such extensive measures would be necessary to

24 reconcile the Injunction with the post-July 1, 2013 system. In

25 enacting Realignment, California’s legislature has fundamentally

26 altered the structure of the state’s parole system. Realignment

23

1 introduces new actors, adds to and subtracts from defendants’

2 responsibilities, redefines what constitutes a “parolee,” and

3 incorporates wholly-new elements such as flash incarceration. The

4 magnitude of the change is signif icant enough that this court

5 cannot, as plaintiffs suggest, simply identify those components of

6 the old system that recur in the new system, and try to reconcile

7 the Injunction with those components. To do so risks bringing the

8 new system grinding to a halt. Although this court is empowered to

9 modify the Injunction to ameliorate unconstitutional conditions,

10 this power is not a license to jumble together the old and the new

11 in the hopes that a functioning, constitutional system will result.

12 Whether the new system provides adequate due process must be

13 demonstrated in practice, without untoward judicial interference

14 until the need for intervention is clear.

15

Moreover, continuing to enforce the Injunction risks intruding

16 on the prerogatives of the state courts. Abstention from

17 unwarranted interference with state court proceedings is a well-

18 settled principle. See, e.g., O’Shea v. Littleton, 414 U.S. 488,

19 500 (1974) (“This seems to us nothing less than an ongoing federal

20 audit of state criminal proceedings which would indirectly

21 accomplish the kind of interference that Younger v. Harris [, 401

22 U.S. 37 (1971)] and related cases sought to prevent”); Los Angeles

23 Cnty. Bar Ass’n v. Eu , 979 F.2d 697, 703 (9th Cir. 1992) (“We

24 should be very reluctant to grant relief that would entail heavy

25 federal interference in such sensitive state activities as

26 administration of the judicial system”); E.T. v. Cantil-Sakauye ,

24

1 682 F.3d 1121, 1124 (2011) (“[T]he district court properly

2 concluded that ‘[P]laintiffs’ challenges to the juvenile dependency

3 court system necessarily require the court to intrude upon the

4 state’s administration of its government, and more specifically,

5 its court system’”). Defendants assert that “any due process

6 concerns that arise as a result of DAPO’s conduct will be directly

7 reviewed and addressed by the superior courts.” (Defendants’

8 Opening 2.) For this court to,e.g., require defendants to maintain

9 the current system for providing parolees with probable cause

10 hearings (including, as plaintiffs request, “the BPH system of

11 hearing officers and the provision of counsel through CalPAP”)

12 would certainly interfere with the system of due process review

13 envisioned by the state.

14

The court acknowledges that immense resources have been

15 devoted to this case, and that it is well-settled that “[o]nce a

16 defendant has engaged in conduct the plaintiff contends is unlawful

17 and the courts have devoted resources to determining the dispute,

18 there is Article III jurisdiction to decide the case as long as

19 ‘the parties [do not] plainly lack a continuing interest . . . .’”

20 Demery v. Arpaio , 378 F.3d 1020, 1026 (9th Cir. 2004) (quoting

21 Friends of the Earth , 528 U.S. at 192). But it is the court’s

22 considered judgment that California’s new parole revocation system

23 is so substantially different from the prior system that neither

24 party retains any continuing interest. In bringing this action,

25 plaintiffs sought to safeguard their due process rights in an

26 administrative system; defendants were the parties responsible for

25

1 that system’s functioning. The post-Realignment parole revocation

2 system involves a complex interplay between the state’s executive

3 and judicial branches, as well as county authorities. Acknowledging

4 that “the question is not whether the precise relief sought at the

5 time the application for an injunction was filed is still

6 available, the question is whether there can be any effective

7 relief,” Gordon, 849 F.2d at 1245, it does not appear to the court

8 that continued enforcement of the Injunction can provide “any

9 effective relief” for plaintiffs. While plaintiffs retain a

10 continuing interest in safeguarding their constitutional rights,

11 the functioning of the system has changed to such a degree that

12 Valdivia no longer provides a viable means for providing those

13 safeguards.

14

None of this is to say that the constitutionality of the new

15 parole system is immune from challenge. It may well be,e.g., that

16 DAPO’s probable cause “determinations” represent a “rever[sion] to

17 a wholly internal review process for assessing probable cause”

18 (Plaintiffs’ Opening 22) of the type that this court found

19 unconstitutional in 2002. Nevertheless, for the reasons set forth

20 above, any such infirmities will have to be addressed, if at all,

21 in a subsequent lawsuit or lawsuits.

22

B. Plaintiffs’ remaining arguments

23

Plaintiffs make a number of fact-specific arguments for why

24 the court should continue to exercise jurisdiction over this case,

25 as follows:

26

• The vast majority of cases will be resolved by DAPO

26

1

without ever proceeding to final revocation hearings

2

in the state court, thereby depriving plaintiffs of

3

due process protections. (Plaintiffs’ Opening 1-2, 5.)

4

This argument rests on the Special Master’s finding

5

that, of late, 94% of parole revocation cases have

6

resolved prior to any final revocation hearing. (Id.

7

9.)

8

• Despite defendants’ averments that they do not intend

9

to deploy flash incarceration, plaintiffs offer

10

evidence suggesting that DAPO not only can, but will,

11

“flash incarcerate” parolees. This evidence includes

12

draft CDCR documents describing and authorizing the

13

use of this sanction, as well as the fact that the

14

state’s new Parole Violation Disposition Tracking

15

System software captures data regarding flash

16

incarceration

17 These dangers are, at this point, entirely speculative, and as

18 such, implicate both mootness and ripeness concerns. To present a

19 continuing case or controversy, the threat of injury must be “real

20 and immediate,” not “conjectural” or “hypothetical.” Lyons , 461

21 U.S. at 102 (1983). “A claim is not ripe for adjudication if it

22 rests upon contingent future events that may not occur as

23 anticipated, or indeed may not occur at all.” Texas v. United

24 States, 523 U.S. 296, 300 (quoting Thomas v. Union Carbide Agric.

25 Prods. Co., 473 U.S. 568, 580-81 (1985)). No one can yet know how

26 the post-Realignment p arole revocation system will function in

27

1 practice. One cannot infer from the relatively small number of

2 cases proceeding to revocation hearings before BPH under the old

3 system that similarly small numbers will proceed to hearings before

4 the courts under the new system. Moreover, plaintiffs’ argument is

5 premised on the assumption that the new system will not provide

6 adequate due process protections prior to final revocation

7 hearings, a finding the court explicitly declines to make.

8 Similarly, regardless of whether DAPO is prevaricating in its claim

9 that it will not use flash incarceration, it would be premature for

10 the court to rule on the measure’s constitutionality, both because

11 it is a single element of a complex new system and because its use

12 by DAPO “may not occur at all.” Texas, 523 U.S. at 300.

13

Next, plaintiffs argue that defendants have failed to present

14 “sufficient evidence for the Court to determine whether

15 modification or termination of the remedy, or any parts of it,

16 would ‘create or perpetuate a constitutional violation.’”

17 (Plaintiffs’ Reply 14 (citing Rufo 502 U.S. at 391)). Plaintiffs

18 miss the point that, as of July 1, 2013, the court no longer has

19 jurisdiction to determine whether there is an ongoing

20 constitutional violation in this matter. The court has reached that

21 conclusion based on the statutory scheme enacted by the California 22 legislature,12 not on the basis of factual evidence adduced by the

23
12 This is not to say that the court has no concerns about 24 the new system. Under the post-Realignment system, it appears
entirely possible for a parolee to be detained for an indefinite 25 period of time, without notice of charges or a probable cause
hearing, before DAPO finally files a petition for parole revocation 26 with the state court. An indeterminate interval may again pass

28

1 parties. Again, it is the court’s view that any constitutional

2 infirmities of the post-Realignment parole revocation system must

3 be addressed in subsequent litigation.

4

Finally, there is the matter of plaintiffs’ supplemental reply

5 to the court’s May 6, 2013 Order, filed on June 27, 2013. (ECF Nos.

6 1841, 1842.) The parties should note that, in general, the court

7 disapproves of the filing of supplemental briefing without leave.

8 Plaintiffs could have sought leave, and in so doing, apprised the

9 court and defendants of the relevant issues; if the court found the

10 issues raised to be meritorious, it would have then set an

11 appropriate briefing schedule. The parties are cautioned that

12 failure to follow these steps in the future may be grounds for

13 sanctions.

14

Plaintiffs’ supplemental reply r aises the issue of how the

15 state will handle parole supervision and revocation for those

16 inmates due to be released from state prison pursuant to the June

17 20, 2013 Order of the Three Judge Court in Coleman v. Brown , No.

18 2:90-cv-0520-LKK-JFM (E.D. Cal.) (ECF No. 4662) and Plata v. Bro,wn

19 No. 3:01-01351-TEH (N.D. Cal.) (ECF No. 2659). Plaintiffs contend:

20

[A]ssuming the defendants do not disregard the Court’s

June 20 Order in the Plata /Coleman matter, more than

21

5,000 class members will be released on parole between

now and the end of 2013, and they will not be subject to

22

23 before the state court holds a revocation hearing. In the meantime,
the parolee may have lost custody of his children, his job, his 24 home and/or his car. The parolee will have no redress if the state
court ultimately finds that there was no basis for revoking parole. 25 Despite the probable unconstitutionality of such procedures, these
harms remain hypothetical, not actual, and as such, may not be 26 addressed in this action.

29

1

Realignment processes. Rather, they will be supervised

by the Valdivia defendants — and not by the counties.

2

And they will be returned to state prison — and not to

county jail — upon a finding that their conditions of

3

parole were violated. The

state courts have no

jurisdiction under A.B. 109 and its clean-up bills to

4

return a person to state prison for a parole violation.

See Cal. Penal Code §§ 3000.08(f), (g) (version

5

operative July 1, 2013). The anticipated process,

therefore, must be within the CDCR and/or Board of

6

Parole Hearings. These class members, therefore, will be

subject to revocation proceedings and hearings by the

7

Valdivia defendants — and not by the state courts. (ECF

8

No. 1841.)

9 Fortuitously, at the time that plaintiffs’ filed their supplemental

10 briefing, the court was conducting a bench trial in the matter of

11 Gilman v. Brown, No. 2:05-cv-830-LKK-CKD (E.D. Cal.). On Monday,

12 July 1, 2013, Jennifer Shaffer, the Executive Officer of BPH, was

13 called as a witness in that trial. After she was sworn in, the

14 court asked Ms. Shaffer whether parole violations among those

15 inmates released pursuant to the Order of the Three Judge Court

16 would be handled under the prior parole revocation system, or the

17 current one. Ms. Shaffer responded that, according to her

18 understanding, petitions to revoke these inmates’ parole would be

19 filed with the state courts, which would then handle them. It is

20 evident that, by virtue of her position, Ms. Shaffer is in a

21 position to testify competently regarding BPH’s responsibilities.

22 Moreover, she testified under oath. For the reasons set forth

23 above, this court has already determined that state court

24 jurisdiction over parole revocation hearings is sufficient to moot

25 this case. Accordingly, based on Ms. Shaffer’s testimony, the

26 court finds that the contentions raised by plaintiffs’ supplemental

30

1 briefing provide an inadequate basis for the court’s continued

2 exercise of jurisdiction over this matter. In other words, Valdivia

3 is moot.

4 IV. CONCLUSION

5

The court hereby orders as follows:

6

[1] The court FINDS that this case is moot. Accordingly,

7

the court DECLINES to adopt the Thirteenth Report of the

8

Special Master on the Status of Conditions of the Remedial

9

Order (ECF No. 1783.) A forthcoming order will address the

10

parties’ outstanding requests to seal documents.

11

12

[2] The parties and the Special Master are DIRECTED to file

13

final motions, if any, for fees and costs within twenty-

14

eight (28) days of the date of entry of this order. Upon

15

resolution of these motions, the court will decertify the

16

class and dismiss this case.

17

IT IS SO ORDERED.

18

DATED: July 2, 2013.

19

20

21

22

23

24

25

26

31

 
 1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10

11 JERRY VALDIVIA, ALFRED YANCY,
and HOSSIE WELCH, on their 12 own behalf and on behalf of
the class of all persons 13 similarly situated,

No. CIV. S-94-671 LKK/GGH ORDER

14

Plaintiffs,

15

v.

16 EDMUND G. BROWN, JR.,
Governor of the State of 17 California, et al.,

18

Defendants.

19

20

On July 2, 2013, the court issued an Order finding this case

21 to be moot. (ECF No. 1845.) The Order directed the parties and

22 the Special Master to file final motions for fees and costs

23 within twenty-eight days, and advised the parties that, after

24 resolving these motions, the court would decertify the class and

25 dismiss this case.

26

On July 29, 2013, the parties filed a joint stipulation and

27 proposed Order regarding outstanding fees and costs. (ECF

28 No. 1850.) The court has entered this Order. (ECF No. 1852.) 1

1

On November 18, 2013, the Special Master filed a declaration

2 indicating that no further fees or expenses are owed to him in

3 this matter. (ECF No. 1862.) The court thanks the Special Master

4 for his service.

5

One matter remains. In response to plaintiffs’ motion for

6 reconsideration (ECF No. 1849), the court issued an Order, dated

7 September 10, 2013, which provided in pertinent part:

8

Defendants are DIRECTED to maintain the

9

injunctive relief previously ordered in this matter in place for those alleged parole

10

violators who were arrested prior to July 1,

2013, but whose alleged parole violations

11

have not yet been addressed by defendants.

Defendants are FURTHER DIRECTED to file a

12

declaration no later than October 1, 2013

apprising the court as to the status of these

13

alleged parole violators’ cases, and to

14

continue doing so on the first of each month

thereafter, until all of the outstanding

15

cases have been disposed of. Thereafter, the

court will resolve the outstanding motions

16

for fees and costs, decertify the class, and

dismiss this case. (ECF No. 1859). 17

18 Defendants subsequently filed a declaration averring that all

19 parole revocation proceedings for alleged parole violators who

20 were arrested before July 1, 2013 have been completed. (ECF

21 No. 1861.)

22

In light of the foregoing, the court hereby orders as

23 follows:

24

[1] The plaintiff class, certified by Order dated December

25

1, 1994 (Dkt. No. 76), is DECERTIFIED.

26 ////

27 ////

28

2

1

[2] The Stipulated Order for Permanent Injunctive Relief

2

(ECF No. 1034) is TERMINATED.

3

4

[3] The Clerk of the Court is DIRECTED to close this case.

5

IT IS SO ORDERED.

6

DATED: November 20, 2013.

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 3

 
 Case 2:94-cv-00671-LKK-GGH Document 1349 Filed 07/26/2007 Page 1 of 29
EXHIBITC

Case 2:94-cv-00671-LKK-GGH Document 1349 Filed 07/26/2007 Page 2 of 29

1 BINGHAM McCUTCHEN KAREN KENNARD - 141925
2 KRISTEN A. PALUMBO - 215857 Three Embarcadero Center
3 TSaenleFphraonncei:sc(o£1tlC5a)l3if9o3r-n2ia00904111-4067
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STEPHEN J. PERRELLO, JR. - 56288 9 P.O . Box 880738
San Diego, California 92618 10 Telephone: (858) 277-5900

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MICHAEL W. BIEN - 096891

ERNEST GALVAN- 196065

MARl L. WILLITS - 209612

155 Montgomery Street, 8th Floor

San Francisco, Califom1a 94104

Telephone (415) 433-6830

ALEX LANDON- 50957
2442 Fourth Avenue San Diego, California 9210 1 Telephone: (619) 232-6022

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

17 JERRY VALDIVIA, et al.,

18
19 20 v.

Plaintiffs,

No. Civ. S-94-0671 LKK/GGH
STIPULATED ORDER FOR PERMANENT INJUNCTIVE RELIEF

21 ARNOLD SCHWARZENEGGER, et al.,
22
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Case 2:94-cv-00671-LKK-GGH Document 1349 Filed 07/26/2007 Page 3 of 29

I. INTRODUCTION

2

1. This action was filed on May 2, 1994. Plaintiffs, on behalfof themselves

3 and the class they represent, challenged the constitutionality of parole revocation

4 procedures conducted by the California Board of Prison Terms ("BPT") and the

5 California Department of Corrections ("CDC").

6

2. The Court certified this case as a class action by order dated December 1,

7 1994. The Plaintiff class consists of the following persons: (1) California parolees who

8 are at large; (2) California parolees in custody as alleged parole violators, and who are

9 awaiting revocation of their state parole; and (3) California parolees who are in custody,

10 having been found in violation of parole and sentenced to prison custody.

11

3. The Defendants are state officials responsibl e for the policies and

12 procedures by which California conducts parole revocation proceedings.

13

4. On June 13, 2002, this Court granted partial summary judgment in favor of

14 Plaintiffs, holding that California's unitary parole revocation system violates the due

15 process rights of the Plaintiff class under Morrissey v.. Brewer, 408 U.S. 481 ( 1972),

16 Gagnon v. Scarpelli, 411 U.S. 778 (1973), and related authority. The Court held that

17 California's parole revocation system violated the due process clause of the Fourteenth

18 Amendment by "allowing a delay of up to forty-five days or more before providing the

19 parolee an opportunity to be heard regarding the reliability of the probable cause

20 determination." Valdivia v. Davis, 206 F. Supp. 2d 1068, 1078 (E.D. Cal. 2002).

21

5. The parties stipulate that this is not a "civil case with respect to prison

22 conditions," as those terms are defined and applied in the Prison Litigation Reform Act 23 ("PLRA"), 18 U.S.C. § 3626, and that therefore this Order is not governed by the

24 PLRA.

25

6. The parties hereby stipulate that the Court shall ADJUDGE, DECLARE,

26 AND DECREE as follows:

27

28

STIPULATED ORDER FOR PERMANENT INJUNCTIVE RELief',

Case 2:94-cv-00671-LKK-GGH Document 1349 Filed 07/26/2007 Page 4 of 29

1 ll. PARTIES

2

7. The Plaintiff class consists of the following persons: (1) California

3 parolees who are at large~ (2) California parolees in custody as alleged parole violators,

4 and who are awaiting revocation of their state parole; and (3) California parolees who

5 are in custody, having been found in violation of parole and sentenced to prison

6 custody.

7

8. The Defendants are state officials responsible for the policies and

8 procedures by which California conducts parole revocation proceedings. Defendant

9 Arnold Schwarzenegger is Governor of the State of California and Chief Executive of

10 the state government. Defendant Roderick Q. Hickman is the Secretary of the

11 California Youth and Adult Correctional Agency. Defendant Edward S. Alameida, Jr.,

12 is Director of the California Department of Corrections. Defendant Richard Rimmer is

13 Deputy Director of the California Department of Corrections, Parole and Community

14 Services Division ("P&CSD"). Defendant Carol A. Daly is a Commissioner and Chair

15 of the Board of Prison Terms ("BPT"). Defendants Alfred R. Angele, Sharon Lawin,

16 Booker T. Welch, Jones M . Moore, and Kenneth L. Risen are Commissioners of the

17 BPT. Defendant Kenneth E. Cater is Chief Deputy Commissioner of the BPT.

18

19 III. DEFINITIONS

20

9. The fo)]owing terms when used in this Order shall have the meanings.

2l specified below:

22

(a) "Parolee(s)" shall mean any member of the Plaintiff class.

23

(b) "Day(s)" shall mean calendar days, unless otherwise specified.

24

(c) "Revocation process" or "revocation proceedings" shall mean all stages ofthe

25 process by which parole may be revoked, including placement of a parole hold, notice,

26 waivers, service of Return to Custody Assessments, and hearings.

27

(d) "Return to Custody Assessments" ("RTCAs") shall mean the practice by

28 which Defendants offer a parolee a specific disposition in return for a waiver of the

STif'ULATEO ORDER FOR I'ERMANI!NT INJUNCTIVE RI::LIH.

2

Case 2:94-cv-00671-LKK-GGH Document 1349 Filed 07/26/2007 Page 5 of 29

parolee's right to a preliminary or final revocation hearing, or both.

2

(e) "Parole hold" shall mean any invocation by Defendants of their authority to

3 involuntarily detain a parolee for revocation proceedings under Section 3056 of the

4 California Penal Code. This term shall not apply to the detention of a parolee who has

5 absconded from the State ofCalifornia unti l he or she is physically returned to the State

6 of California and is in its custody.

7

8 IV. POLICIES, PROCEDURES, FORMS, AND PLANS

9

10. For all policies, procedures, forms, and plans developed under this Order,

10 the parties shall use the following process: Defendants shall meet periodically with

11 Plaintiffs' counsel to discuss their development of policies, procedures, forms, and 12 plans. In preparation for such meetings, Defendants will provide Plaintiffs' counsel 13 with copies of the proposed policies, procedures, forms, and plans in draft form no later

14 than 7 days before the meeting. lf the parties reach an impasse on any particular issues,

15 they may bring the disputed issues to the Court in a motion to be heard on shortened

16 time.

17

11. Using the procedure set forth above in Paragraph 10, Defendants shall do

18 the following:

19

(a) Defendants shall develop and implement suffi ciently specific Policies and

20 Procedures that will ensure continuous compliance with all of the requirements of this
21 Order. The Policies and Procedures will provide for implementation of the August 21 ,
22 2003 Remedial Plan Outline (attached hereto as Exhibit A), as wcl1 as the requirements 23 set forth below in Paragraphs 12- 24. Defendants shall submit the completed Policies

24 and Procedures to the Court no later than July 1, 2004.

25

(b) By July l, 2004, Defendants shall begin implementing the following steps

26 in the parole revocation process, which shall be completely implemented by January 1,

27 2005:

28

(i) Defendants shall appoint counsel for all parolees beginning at the

STIPULATED ORUER FOR PERMANENT INJUNCTIVE RI.:LIEF.

3

r-·:.. c n" '""'" ' t vvJr.r.:u

Case 2:94-cv-00671-LKK-GGH Document 1349 Filed 07/26/2007 Page 6 of 29

RTCA stage of the revocation proceeding. Defendants shall provide an expedited

2 probable cause hearing upon a sufficient offer ofproof by appointed counsel that there

3 is a complete defense to all parole violation charges that are the basis of the parole hold.

4

(ii) No later than 48 hours after the parole hold, or no later than the next

5 business day if the hold is placed on a weekend or holiday, the parole agent and unit

6 supervisor will confer to determine whether probable cause exists to continue the parole

7 hold, and will document their determination.

8

(iii) If the parole hold is continued thereafter, no later than 3 business days

9 after the placement of the hold, the parolee will be served with actual notice of the

I 0 alleged parole violation, including a short factual summary of the charged conduct and

II written notice of the parolee's rights regarding the revocation process and timeframes.

12

(iv) For all parolees who do not waive or seek a continuance of a final

13 revocation hearing, Defendants shall provide a final revocation hearing on or before the

14 35th calendar day after the placement of the parole hold.

15

(c) By July 1, 2004, Defendants shall serve on counsel for Plaintiffs an

16 assessment of the availability of facilities and a plan to provide hearing space for

17 separate probable cause hearings.

18

(d) By July 1, 2005, in addition to the steps listed above, for all parolees who

19 do not waive or seek a continuance of a probable cause hearing, Defendants shall

20 provide a hearing to determine probable cause no later than 10 business days after the

21 parolee has been served with notice of the charges and rights (at the 3rd business day

22 after the placement of the hold).

23

(e) Defendants s.hall complete implementation of the Policies and Procedures

24 by July 1, 2005.

25

12. ln addition to the provisions of the August 21,2003 Remedial Plan Outline,

26 the Policies and Procedures shall ensure that the fo11owing requirements are met:

27

13. At the time of appointment, counsel appointed to represent parolees who

28 have difficulty in communicating or participating in revocation proceedings, shall be

STrPULATED ORDER FOR PERMANENT INJUNCTIVE RELIEF.

4

r" ••• C n ~ 1"\/,'"'11 I VVfr'!r.ll

Case 2:94-cv-00671-LKK-GGH Document 1349 Filed 07/26/2007 Page 7 of 29

informed of the nature of the difficulty, including but not limited to: mental illness,

2 other cognitive or communication impairments, illiteracy, 1imitcd English-language

3 proficiency, and the need for a foreign language interpreter. The appointment shall

4 allow counsel adequate time to represent the parolee properly at each stage of the

5 proceeding.

6

14. At the time of appointment, counsel shall be provided with all non-

7 confidential reports and any other documents that the state intends to rely upon at the

8 probable cause or final revocation hearing. After appointment, if the state learns of

9 additional evidence or documents, and intends to rely on such additional evidence or

10 documents, it shall produce them to counsel as soon as practicable before the hearing.

11

15. Defendants shall develop and implement policies and procedures for the

12 designation of information as confidential that are consistent with the requirements of

13 due process.

14

16. Non-confidential portions of parolees' field files shall be available to

15 parolees' counsel unless good cause exists for failure to provide access to such files.

16 Field file information shall be withheld from counsel as confidential only in accordance

17 with the policies and procedures referenced in Paragraph 15..

18

17. Defendants shall develop standards, guidelines, and training for effective

19 assistance of state appointed counsel in the parole revocation process.

20

18. Defendants will ensure that parolees receive effective communication

21 throughout the entire revocation process.

22

19. Defendants will ensure that all BPT and CDC forms provided to parolees

23 are reviewed for accuracy and are simplified to the extent possible through a procedure

24 similar to that used to revise forms in Armstrong v. Davis, C94-2307 CW (N.D. Cal.).

25 This process will include translation of forms to Spanish. Revised fonns will be

26 submitted to Plaintiffs' counsel for review prior to finalization, dissemination, or

27 modification.

28

20. Upon written request, parolees shall be provided access to tapes of parole

STIPULATED ORDER FOR PERMANENT INJUNCTIVE RCLIF.F.

5

,....,. t~ t\A nt:.., 1 1 vv1r.r.11

Case 2:94-cv-00671-LKK-GGH Document 1349 Filed 07/26/2007 Page 8 of 29

1 revocation hearings.

2

21. Parolees' counsel shall have the ability to subpoena and present witnesses

3 and evidence to the same extent and under the same terms as the state.

4

22. At probable cause hearings, parolees shall be allowed to present evidence

5 to defend or mitigate against the charges and proposed disposition. Such evidence shall

6 be presented through documentary evidence or the charged parolee's testimony, either 7 or both of which may include hearsay testimony.

8

23. Final revocation hearings shall occur within 35 calendar days ofthe parole

9 hold.

10

24. The use ofhearsay evidence shall be limited by the parolees' confrontation

11 rights in the manner set forth under controlling law as currently stated in United States

12 v. Comito, 177 F.3d 1166 (9th Cir. 1999). The Policies and Procedures shall include

13 guidelines and standards derived from such Jaw.

14

15 V. STAFFING LEVELS

16

Defendants shall maintain sufficient staffing levels in the CDC and BPT to meet

17 all of the obligations of this Order.

18

19 VI. MONITORING

20

25. The parties shall cooperate so that Plaintiffs' counsel has access to the

21 information reasonably necessary to monitor Defendants' compliance with this Order

22 and the Policies and Procedures adopted in response thereto. Such information shal1

23 include but not be limited to: access to documents, tours, observation of parole

24 revocation proceedings, observation of training sessions, interviews of staff, and

25 interviews with parolees. Plaintiffs' counsel may notice depositions under the Federal

26 Rules of Civil Procedure either: ( I) if Plaintiffs' counsel are unable to obtain relevant

27 information through interviews and informal document requests, or (2) after notifying

28 Defendants ofnon-compliance with this Order under Section VII, below. Before

STIPULATED ORDER FOR PERMANENT !NJUNCTIVR RELIEF,

6

Case 2:94-cv-00671-LKK-GGH Document 1349 Filed 07/26/2007 Page 9 of 29

noticing a deposition, Plaintiffs' counsel must consult with opposing counsel about the ·2 deposition schedule so that the convenience of counsel, witnesses, and parties may be

3 accommodated, ifpossible.

4

26. The parties shall meet regularly, and at least once every 90 days, to discuss

5 implementation issues. At least once every 90 days, Defendants shall provide Plaintiffs'

6 counsel with a report on hold-to-hearing time in substantially the same form, and with

7 the same content as that currently used in Defendants' weekly "RSTS" meetings.

8

27. The parties shall agree on a mechanism for promptly addressing concerns

9 raised by Plaintiffs' counsel regarding individual class members and emergencies.

10

11 VII. ENFORCEMENT

12

28. The Court shall retain jurisdiction to enforce the terms of this Order. The

1} Court shall have the power to enforce the terms of this Order through specific

14 performance and all other remedies permitted by law or equity.

15

29. IfPlaintiffs' counsel believe that Defendants are not complying with any of

16 the acts required by this Order, the Remedial Plans, or Policies and Procedures produced

17 pursuant to it, they shall notify Defendants in writing of the facts supporting their belief.

18 Defendants shall investigate the allegations and respond in writing within 30 days. If

19 Plaintiffs' counsel are not satisfied with Defendants' response, the parties shall conduct

20 negotiations to resolve the issue(s). If the parties are unable to resolve the issue(s) 21 satisfactorily, Plaintiffs may move the Court for any relief permitted by law or equity.

22

23 VIII. ATTORNEY'S FEES AND COSTS

24

30. Plaintiffs are the prevailing party in this action. Plaintiffs' counsel may

25 move for an award of reasonable attorney's fees and costs for obtaining relief for the

26 Plaintiff class pursuant to 42 U.S.C. § 1988 or any other applicable law. Defendants

27 shall pay Plaintiffs' counsel reasonable attorney's fees for work performed in

28 connection with monitoring and enforcing this Order. The parties reserve the right to

STIPULATED ORDF.R FOR PERMANENT INJUNCTIVE RELIEF.

7

r; .. ~ o~• nr..'7l r vv1r:nu

IICase 2:94-cv-00671-LKK-GGH Document 1349 Filed 07/26/2007 Page 10 of 29

I,III,

it'
I tl address at a future.date wl,ethe: 42 ll.S.C § I9Y7e(d) ~ppiies man t-lv'.£trd ofattorney\

...,.

I d

.. . .
tees ·1r.

h' t JlS

sm0 L

3! IX. RESOLUTION OF CLAIJVIS

il follow~~~. Am~nded 4!I

~{ 1 11Hs stipulated order re!Sol vee; all the claims in this case, exc.ept the

5

to the extent that they are aileged in the Fifth

Complaint, 1f a'L all:

violate~ 611

(a) b-~~J.§. Plaintiff" assert that Defendants' administrative·-appee;,.ls system

7

1 1

for

parole-revocation

and

revocation-extensjon

decisions

the Due Process and

I
8 Equal Protectjon Clauses of the Fourteenth Amendment.

9

(b) Revocation-Extension Proceedin@. Plaintiffs assert that DefendantB'

I10 polic1es, procedures, and pract:kes for ~xtending parole revocations based <m :=tllege-d

11 1 rules viL1lat10ns while in custody vJO.Iate the Due Pmce~s Clauc:;·e.

t2!

:~2 The p;ni.ies anticipate thar thes~ i%ue~; will be resoh'eJ i11fon11<~ll:~, \:\iJthour

1.~

I
jl

i\t'C:d

tor the CoGI'i~ t, interventi0n.

The parties \N·ill

inform the Comi

ifthi~ does n<~t

~~ 14 0CCUY.

15 1!

1611

° IT IS SO STIPULATED.

L71 i
1811 Dated: ~:e-:}e-:_/)~ 2003

I
J9 I

201 21

ROSEN, BIEN & A~ARO
,J;.;,v~
By f~--.---------·-·-·-···-. MlCHAEL BIEN

22
23 Dated: JV~A-.- 2003

PRISON LAw· OFFlCE

241

I2:" 261'r·

By _:;)2~-~~.. -- . -·- .. DONALD SPECTER

27 jl

/\rtorneys fm PlaintifL
28:1

d -
II

Case 2:94-cv-00671-LKK-GGH Document 1349 Filed 07/26/2007 Page 11 of 29

I' 7.
l8l Dated: I!JILLJ.Ji;..L,//,2003
i llJ 20

RILL LOCKYER , Attorney General of the State of Cal1fomi::~ , ROBERT R. AN1H::R:-30N. Chief
A~s1stanL Attorney General,
.~R.ANCES T. GRUNDER, ~enior
A~~~istant Attorney General .
.rO"N A'fHAN L. WOLFI•. S11pervi~;ing Deputy Attorney
(ieneral

'1tj.!J,~_
B\ .~.......L~·- -·-·-·-THOMAS S. PATTERSON,

Dcp:1ty At1omey CieJJt:Hl1 .\tttJmcys for Defe-r•·:f?JJtS

B.~~-~ --

..,

·-

.':lt..:c:ret.ary. Yth.Jtll and /\1i!1)1

C:1rrr.ctioncll A2encv

.

0

-

By
Director, Cal1 t;~rrrn Corre~,;t1on~

c ur Chair, ahfomia 8<)J!-~ r"iiSGII
Terms

{ 1\ ; t:.l IH'\ ,. It\< It\ ·' I

.. I
• ··- - I

ClI iase 2:94-cv-00671-LKK-GGH Document 1349 Filed 07/26/2007 Page 12 of 29

tl

!.'I'I
..It

·I

I

It
lIjI

21

OROER
The Cuurt lin~s that this is not a ··civil ca&e with respect to prison conditions," as

il1 :.hose terms art. delined and appiied in the Pri~qn Litigat1011 l~ •'~'· ~··m Ac1 ("PI.RA"), !8

-' II4

Iil'

tUh.eSi.rCa.gx~em3<s,'2e0r.r..p-ml•tYi ytheeast.thanerdefsourtc>cetshs1.~1!('Shc~'i"'•~·r1.!:"1~i:.':~H.:>~ar.:.r.2.·0<·..:~rcmc~r-(r·1d:1t.v0

r)K PLRA. Delendant[-' cempl:r wnh all the

I

II6 tenns statrd abt) Vf:>.

! 7 I

IT IS SO ORDERED

8 9

Dated: ...S /-~--' 20u~~
1

1

10 1

I1I I

}2 iI

i

I
Dt~:~_WR..~l-·N-0C_F K~. ~~-Ah·-· ~!6)-N--- !!

Chief ]t; .o.e. Ementu~

!

i

I.". II
I
I • I
I 'i I
I!
l ."i :!

l 7
\8 I
I I')
I20
Ll
'·-") '}

'

).o-

I
,I:

-.,,l l I,'

,,I

.,l) I:

'·ti--· ······ ······

I

. Zill>i:LA J'I:DORIWR !'OR ti't:ff:;;j \7.Jt~·lNJiT>\il i·~7~o' Rt:i'i'r~:--···-· .•.
C' 11 ~ IJJ.I~•' I 1 '( J.. r,til !

____ ., __. . . . . . !
i t .l

Case 2:94-cv-00671-LKK-GGH Document 1349 Filed 07/26/2007 Page 13 of 29

'. JJILL LOCKYER Attorlt•JI G~"«rlll

....

StllU ofCll/iforllic ·
DEPARTMENT OF JUSTICE

•

.CS5 OOLOEN" OAf£AVENUE. SlJIT.B 11000 . SJ\N FRANCISCO, CA 9<41 02· 700;4
'i5 TePlub~li:c:~· 415 170033·..~S5T1)I(71
rllCSimilo: 41.5 703~843 ~Mall: Thomas.Patfe%30 ~.ca.gav

August 20, 2003

. :
The Honorable Lawrence K.. ~lton

ChiefJudie E~eritus

1

UnHed States District Coun, ~tern Di&uict

501 "I" Street .

i

Sacramento, CA 95S14

;

RECEIVED AUG 2 2 ·2003
ROSEN BIEN & ASARO

tfo. RE: Jerry Valdivia, et al. v. Gray Davis. et al. USDC ~D. Cal, Qlse fdY-6·9~;9671 LKKQOH f

Dear Judge Karlton:
The foll~wing is D~b' revised mnedial plan in this case. Tbia plan represent<J a.
1hc tretX~eodous a:moUIU ofwork by Defepdants and other 3~te officials since the July 23, 2003
order, much ofwbich bas been 4one recently while consulting Plaintiff'$ coun.se.J.

Defendants continue to ~rk with Plaintiffs' counsel to refine the revised romedial plan in efforts to pedect a viable rev~calion system that affotds appropriate process.
With this in mind, nei~ Plaintiffs nor ~fendants dosire the Court to rule immediately·
on the adequacY:ofthe revised r~odial plan. Rather. they hope to resolve the issues soo.o and,
of course, will advise the Cowt {>fthe outcome oftheir efforts.

Sincerely,
~1P~...
TifOMAs S. PATrnRSON Deputy Attorney Oenerai
Attorney for Defendants ~
For B)LL LOCKY~ Attomey General!

·fi~p~-
Prisoo Law Office Attomey for Plaintiffs

Case 2:94-cv-00671-LKK-GGH Document 1349 Filed 07/26/2007 Page 14 of 29

Valdivia Remedial Plan

(

Violation Occurs

* PCH Time starts 1st
day after Notice and -
runs for 10 Bus days

+
Remedial Sanctions-If Appropriate
t (COP/SATCU/Aiternate Placement) +
Probable Cause Detennlnatlon Review/Case Conference regarding PC 3056 Hold
_-t_

Within 48 Hours of Hold Placement
(If on Weekend/Hoi no later than next
Business day)

Parolee Noticed of Charges

-

(Activity Report)/ Interviewed and Provided Copies

(Charges, BPT 1073, Notice of Rights)

~ 3 Business Days
of Hold Placement

i Violation Report Submitted by Agent of Record

.--(*1-3 Bus Days)

~ VIolation Report Reviewed by Unit Supervisor

K 4 Bus Days

COP/ Remedial Sanction
J !
Case

•" Rev Pac~et Reviewed by :arole Administrator (f»AO)

(

Decentralized Revocation Unit

Revocation Packets Received -Data Entry (RST$)

r5-6 Bus Days)

~----------- --------~

I

Attorneys Receive Revocation Packets

Resolved

\

and Consult with Parolee

Accepts/ COP/CTS/
NIC/ Remedial Sanctions/ Dismiss

•
RTC Assessment by DC or PAD Offers Communicated to Attorneys
Expedited Hearing with Offer of Proof
_t_
Probable Cause Hearing DC or PAD/Attorney/Parolee Exculpatory/Documentary Evidence Presented

~K 6-8 Bus Days
I
f-(9-10 Bu·s Days

+
( Rejection of offer (Witness Selection/Hearing Location/ADA Review)

Case

(

Resolved)

l

_t_
Revocation Hearing
Revised 8121/03 (1130 Hours)

)-

On or Before 35 Calendar
Days of Hold Placement

Case 2:94-cv-00671-LKK-GGH Document 1349 Filed 07/26/2007 Page 15 of 29
._ \
VALDIVIA REMEDIAL PLAN POLICY OUTLINE
VIOLATION OCCURS
There are a myriad of circumstances under which a Parolee can violate his or her conditions ofparole. There are approximately 100,000 parole violations referred to the Board ofPrison Terms each calendar year.
of Currently about 60% ofthe reported violations are the result arrests by
local law enforcement. Of that 60% arrested by local law enforcement, many are charged in the local jurisdictions for crimes against the state, while others are not charged locally but instead referred to the Board ofPrison Terms for administrative disposition.
The remaining 40% are arrests that involve the Parole officer, which may also result in local charges or referral to the Board of Prison Terms for administrative disposition.
The average parole violator's term in prison is five and one half month~.
Approximately 66% ofthe cases referred to the Board ofPrison Terms are resolved prior to the revocation hearing. Last year, the Board ofPrison Terms conducted approximately 37,000 revocation hearings.
REMEDIAL SANCTIONS
As part ofthe overall reform ofthe revocation process, the Parole and
Community Services Division of the Department of Corrections will begin
using remedial sanctions/community based treatment placement in January of2004.
Some ofthe remedial sanctions/community based treatment programs that will be used are the Substance Abuse Treatment Control Units, Electronic Monitoring, Self-Help Outpatient/aftercare programs, and alternative placement in structured and supervised environments.

Case 2:94-cv-00671-LKK-GGH Document 1349 Filed 07/26/2007 Page 16 of 29
. '
These remedial sanctions are not considered violations of parole because participat-ion in the remedial sanctions program is vohmtary and participation in the remedial sanctions program will not make the parolee presumptively ineligible for discharge at 13 months.
The goal is to reduce the number of returns to prison for violations of parole by up to 10% in 2004 and by up to 30% by 2006.
IF REMEDIAL SANCTIONS ARE DEEMED :INAPPROPRIATE AND A PAROLE BOLD IS PLACED ON THE PAROLEE, A PROBABLE CAUSE DETERMINATION/REVIEW WILL TAKE PLACE WITHIN 48 HOURS OF THE HOLD AND IF THE BOLD IS PLACED ON A WEEKEND OR HOLIDAY, THE PROBABLE CAUSE REVIEW WILL BE CONDUCTED NO LATER THAN THE NEXT BUSINESS DAY FOLLOWING THE HOLD BEING PLACED.
Although this probable cause review for parolees is not required under any ofthe current, relevant case law, it is being put in place in an attempt to take a second look at those individuals who have been placed into custody to determine ifthe "present danger to public safety" concern still exists or if remedial sanctions/community based treatment is possible at this juncture.
As an example, a parolee who was strung out on dope may have "dried out" sufficiently that he or she is no longer a danger to him or herself or the public and may be an appropriate candidate for community based treatment in a structured, supervised program.
Under such a scenario, the parolee would be released to a conununity based treatment program with the understanding that a specific condition ofhis or her release is the completion ofthe program and any other special conditions of parole that the Parole Agent deems appropriate.
Current regulation and case law require any special conditions ofparole to have a nexus to the parolees' commitment offense or behavior:
2

Case 2:94-cv-00671-LKK-GGH Document 1349 Filed 07/26/2007 Page 17 of 29
· - ··"
PAROLEE IS GIVEN ACTUAL WRI'ITEN NOTICE OF CHARGES WITH A SHORT FACTUAL SUMMARY OF THE BEHAVIOR; THE NOTICE OF RIGHTS REGARDING THE REVOCATION PROCESS; AND THE BPT 1073 ADA DETERMINATION IS MADE
VIA A FACE TO FACE INTERVIEW WITHIN 3 BUSINESS DAYS
OF THE HOLD BEING PLACED.
Ifthe remedial sanctions are deemed inappropriate, within three business days of the hold being placed, the parolee shall be served actual notice ofthe charges against him or her accomp~ied by a short factual summary of the behavior; he or she shall be interviewed; an a ADA determination shall be made; the BPT form 1073 shall be completed, and parolee shall be provided with a written notice of rights regarding the revocation process and time frames. (Hereinafter referred to as "notice.")
The principles of "effective communication" apply to the revocation process. ADA accommodation must be provided ·for all parolees when necessary. In addition, all forms shall be printed in Spanish and English and a Spanish speaking person shall be available to interpret and explain the forms to the parolee where necessary.
]rHE PROBABLE CAUSE HEARING SHALL BE CONDUCTED "NITHIN 10 BUSINESS DAYS FOLLOWING THE DATE OF !\.CfUAL SERVICE OF THE NOTICE OF CHARGES, THE ADA 1JETERMINATION, AND THE NOTICE OF RIGHTS.
Within the first 3 days after the parolee has been served with notice, the violation report must be completed and submitted to the Parole Unit superv1sor.
On or before the fourth business day, the Unit Supervisor must review the report and: ( l) determine ifthere is sufficient basis for the revocation to go forward; (2) determine ifthe report is accurate, complete, and contains the correct Title 15 violation sections; and (3) review the report and consider whether or not remedial sanctions/community based treatment js appropriate in lieu of proceeding with referral to the Board of Prison Terms with a recommendation that the parolee be returned to prison.
3

Case 2:94-cv-00671-LKK-GGH Document 1349 Filed 07/26/2007 Page 18 of 29

. '

J

On

or

before

the

4

1
h

business day, the revocation packet is reviewed by the

Parole Administrator to determine whether or not there is a sufficient basis

for the case to move forward and whether or not Remedial

Sanctions/Community Based Treatment is appropriate at this juncture.

On or before the 5th business day, the revocation packet is forwarded to the
decentralized revocation unit where the parolee is being held.
On or before the 61h business day, the parolee (including non-Annstrong class members) shall be appointed an attorney and the attorney shall be
provided with a copy ofthe revocation packet, which shall contain a signed copy of the notice of charges, notice ofrevocation ofrights, and a completed BPT 1073.

Attorney shall meet with the Parolee, provide the parolee with a copy ofthe revocation packet, and shall communicate any offer or offers made by the Board ofPrison Terms Deputy Commissioner/Parole Administrator prior to fue probable cause hearing.

In the event the parolee can make a sufficient offer ofproof of a complete defense to the charges the Board ofPrison Terms Deputy
Commissioner/Parole Administrator, an expedited Probable Cause Hearing with Documentary and/or live testimony shall be scheduled. As an example,
if the parole has uncontroverted documentary evidence that he or she was in
Santa Rita jail when this violation allegedly occurred in Los Angeles,
parolee shall be allowed to present such evidence at an expedited probable cause bearing between the 6th and 8th business day or at the earliest time possible thereafter if parolee is unable to produce such evidence by the 6th to glh day.

On or before the 6th to 8th business day, a return to custody assessment (an offer) is made by the Deputy Commissioner/Parole Administrator, and the offer shall be communicated to the parolee's attorney.

On or before the 1Oth business day, a Probable Cause Hearing shall be held with the Deputy Commissioner/Parole Administrator, the parolee, and parolee's attorney.

4

Case 2:94-cv-00671-LKK-GGH Document 1349 Filed 07/26/2007 Page 19 of 29
The Deputy Commissioner/Parole Administrator conducting the hearing shall be the same Deputy Commissioner/Parole Administrator who made the return to custody assessment (offer) where practicable.
Parolee shall be permitted to present documentary evidence and hearsay testimony by way of offer ofproof through his or her attorney in mitigation or as a partial or complete defense to the charges and/or the proposed disposition.
The Deputy Commissioner/Parole Administrator shall have the complete range of options to resolve the case. (Continue on parole, credit for time served, release from custody with pending charges, remedial sanctions/community based treatment, reduce the offer.downward, dismiss some or all ofthe charges)
The Deputy Commissioner shall not have the authority to adjust the return to custody assessment upward at or during the probable cause heari.ng.
Parolee shall have the right to waive time as to any ofthese hearing time cons~aints with or without good cause.
Attorney shall have the right to a continuance upon the showing of good cause in the absence of his or her client's consent in cases ofemergency or illness or upon such other showing that the Deputy Commissioner/Parole Administrator can make a finding of good cause.
There shall be a written record of this proceeding and the basis for any decisions made therein.
It is not necessary that the Probable Cause H~aring be audio/video recorded.
Ifat the conclusion ofthe probable cause hearing, the parolee has rejected the offer, parolee shall provide the Deputy Commissioner/Parole Administrator with a list of witnesses he or she would like to call at the revocation hearing. The location ofthe hearing shall be determined (within 50 miles ofthe violation), and the Deputy Commissioner/Parole Administrator shall make an independent ADA accommodation determination.
5

Case 2:94-cv-00671-LKK-GGH Document 1349 Filed 07/26/2007 Page 20 of 29
....
P.EVOCATION HEARING
The revocation hearing shall be held at the earliest possible time and in no case later than 35 calendar days after the parole hold has been placed.
6

Case 2:94-cv-00671-LKK-GGH Document 1349 Filed 07/26/2007 Page 21 of 29

.. '
...·

DECLARATION OF SERVICE BY U.S. MAIL

Case Name: JERRY VALDIVIA, et al. v. GRAY DAVIS, et at.

No.: USDC E.D. #CJV-8-94-0671 LKK GGH P

I declare:

I am employed in the Office of the Attorney General, which is the office of a member of the California State Bar which member's direction this service is made. I am 18 years of age and older and not a party to this matter. I am familiar with the business practice at the Office of the
Attorney General for collection and processing of correspondence for mailing with the United States Postal Service. In accordance with that practice, correspondence placed in the internal
mail collection system at the Office ofthe Attorney General is deposited with the United States
Postal Service that same day in the ordinary course ofbusiness.

On August 21. 2003, I served the attached

DEFENDANTS' REVISED REMEDIAL PLAN

by placing a true copy thereofenclosed in a sealed envelope with postage thereon fully prepaid, in the internal mail collection system at the Office of the Attorney General at 455 Golden Gate Avenue, San Francisco, California 94102-7004, addressed as follows:

Michael W. Bien, Esq. Rosen, Bien & Asaro 155 Montgomery Street, 8,. F1oor San Fr:ancisco, CA 94104

Alexander L. Landon Law Offices of Alex Landon 2442 Fourth Avenue San Diego, CA 92101

D o n a l d. S p e c t e r Prison Law Office General Delivery San Quentin, CA 94964
Stephen J. Perrello, Jr. P.O. Box 880738 San Diego, CA 92168

Karen Kennard Kristen A. Palumbo Bingham McCut~hen LLP Three Embarcadero Center San Francisco, CA 941 J 1-4067

I declare under penalty ofpeijury under the laws of the State of Califorrua the foregoing is true and correct and that this declaration was executed on August 21, 2003, at San Francisco, Califorrua.

<0006l64.wpo

A. ALBANO Declarant

Signature

Case 2:94-cv-00671-LKK-GGH Document 1349 Filed 07/26/2007 Page 22 of 29

DECLARATION Of' SERVICE BY U.S. MAIL Case Name: Jerry Valdivia, et aL v. Gray Davis, et al.

No.: l declare:

USDC, Eastern District of California, Case No. CIV-S-94-0671 LKK GGIJ P

1am employed in the Office of the Attorney General, which is the office of a member ofthe California State Bar which member's direction this service is made. I am 18 years of age and older and not a party to this matter. I am familiar with the business practice at the Office of the Attorney General for collection and processing ofcorrespondence for mailing with the United Stat€:S Postal Service. In accordance with that practice, correspondence placed in the internal mail collection system at the Office of the Attorney General is deposited with the United States Postal Service that same day in the ordinary course of business.
On November 18, 2003, l served the attached

STIPULATED ORDER FOR PERMANENT INJUNCTIVE RELIEF

by placing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid, in the internal mail collection system at the Office of the Attorney General at 1300 I Street, P.O. Box 944255, Sacramento, California 94244-2550, addressed as follows:

Karen L. Kennard Bingham McCutchen LLP Three Embarcadero Center San Francisco, CA 94111-4067

Alex Landon Law Offices of Alex Landon 2442 Fourth Avenue San Diego, CA 92101

Donald Specter Prison Law Office General Delivery San Quentin, CA 94964

Stephen J . Perrello, Jr. Law Offices of Stephen J. Perello P.O. Box 880738 S~tn Diego, CA 92168

Michael W. Bien Rosen, Bien & Asaro 155 Montgomery Street, S'h Floor Sao Francisco, CA 94104

I declare under penalty ofperjury under the laws ofthc State ofCalifornia the foregoing is true

and correct and that this declaration was executed on November 18, 2003, at Sacramento,

California.

R. Wells

f

IOOlS232,wpd

Declarant

Signature

Case 2:94-cv-00671-LKK-GGH Document 1349 Filed 07/26/2007
United States District Court for the
Eastern District of California
March 9, 2004

Page 23 of 29 ndd

* * CERTIFICATE OF SERVICE * *

2 : 94-cv-00671

Valdivias
v.
Schwarzenegger

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S . District Court, Eastern District of California.
That on March 9, 2004, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S . Mail, by placing said copy(ies) into an inter-office delivery receptacle l ocated in the Clerk's off ice, or, pursuant to prior authorization by counsel, via facsimile.

Stephen J Perrella Jr

AR/LKK

Law Office of Stephen J Perrella

P 0 Box 880738

San Die go, CA 92 1 68

Alexander L Landon Law Offices of Alex Landon 2442 Fourth Avenue
San Di e go, CA 921 01

Karen Kennard Bingham McCUtchen LLP Three Embarcadero Center Suite 1800 San Francisco, CA 94111
Michael w Bien
Rosen Bien and Asaro 1 55 Montgomery Street Eighth Floor Sa n Franci sco, CA 94 1 04

Case 2:94-cv-00671-LKK-GGH
Donald Specter Prison Law Office General Delivery San Quentin, CA 94964

Document 1349

Filed 07/26/2007 Page 24 of 29

William Vernon Cashdollar Attorney General's Office for the State of California PO Box 944255
1300 I Street Suite 125 Sacramento, CA 94244-2550

Erika C Aljens Attorney General's Office for the State of California PO Box 944255
1300 I Street
Suite 125 Sacramento, CA 94244-2550

Benja~in Laurence Pavone Law Office of Benjamin Pavone 7676 Hazard Center Drive Fifth Floor San Diego, CA 92108-4503

·Thomas Stuart Patterson California Attorney General's Office 455 Golden Gate Avenue
Suite 11000 San Francisco, CA 94102-7004

John T Philipsborn Law Offices of John T Philipsborn 507 Polk Street Suite 250
San Francisco, CA 94102

Kristen A Palumbo
Bingham McCutchen LLP Three Embarcadero Center San Francisco, CA 94111-4067

Peter D Nussbaum Altshuler Berzon Nussbaum Rubin and Demain 177 Post Street
Suite 300 San Francisco, CA 94108

Mark F Adams San Diego Criminal Defense Bar Association 962 Fifth Avenue Suite 214 San Diego, CA 92101

Michael J McCabe Criminal Defense Lawyers Club of San Diego 2442 Fourth Avenue ~.r. -~">•tq.: (1}-i.i-;.,/ uj

Jac~ L. Wagn.0r, Clerk t10c,

Case 2:94-cv-00671-LKK-GGH Document 1349 Filed 07/26/2007 Page 25 of 29
EXHIBITD

Case 2:94-cv-00671-LKK-GGH Document 1349 Filed 07/26/2007 Page 26 of 29

Data Analysis Unit

Department of Corrections and Rehabilitation

Estimates and Statistical Analysis Section

State of California

Offender Information Services Branch

July 9, 2007

WEEKLY REPORT Of' POPULATION

AS OF MIDNIGHT July 4, 2007

A. 1~TAL INSTITUTIONS
I. IN-STATE
(MBN, Subtotal) (WOMEN, Subtotal)
l. INSTITUTIONS/CAMPS INSTITUTIONS CAMPSCCCC & SCC)

F8LON/ OTHI>R
171,938
171,543 159,955
11, 588
165,055 160. !)14
11,481

TO'l'AL CDCR POPULATION

CJ-I.ANGE SINCE

CIVIL

0'1 /05/06

J\ODICT TOTAL

NO. PCT.

1,079 173,017 +1,057

+0.6

1 , 079 172,622 798 160,753 281 11,869

~662
+497 +165

+0.3 ·0.3
1-1 .4

1,079 166,134
1,079 161,653 4,481

+175 >147 +28

+0 .1 +0.0 +0 .6

DESIGN PERCP.NT STAFFED CAPACITY OCCUPIED CAPACITY

84,653 80,415
4,238

196.3 201.0 105.7

169,272 164,913
4,359

2 . COMMUNlTY CORR. C'I'RS. CCF PRIVATE CCF PUBLIC
DRUG 1'REATMT FURLOUGH PRIVATE WORK FURLOUGH PRISONER MOTHER PGM
FAMILY FOUNDATION PGM WORK FUR. IN CUSTODY

6, 357 2, 923 2, 679
466 101
70
63 55

0 6,357 2,923
2,679 466 101 70 63 55

•531 fl31 •337
• 4 1
·12 0
5
'15

19.1
+4. 6
+14. 3 +9.6
+13 .'l
~7.3
+37 . 5

7' !>6'/
2' '1!:>2 2,461
1 '056 l. 103
70
'10
!>5

8~.0
106.2 108.9
4 4.1 9.2
100.0
90.0 100.0

3. DMH STATE IIOSPITALS

131

131

-25.1

!T. OUT OF STATE (COCF) ARIZONA TENNESSEE
ll. PAROLE COMMUNITY SUPERVISION COOPERATIVE CASES

395 317
78
125,379 123,904
1, 475

0

395

31'1

78

1' 772 12'1. J 51 1, 772 125,676
1,475

+9,797 +9,867
-70

+8.3 +8.5 ·4 . 5

C. NON-CDC JURISDICTION OTilER STATE/FED. INST. OUT OF STATE PAROLE OUT OF STATE PAL CYA-W&IC 1731 . 5(c)
INSTITUTIONS

1,904 512
l, 234 76
82

0

1,904

5~2

1,234

76

82

-0.9 - 2.6 -2.q
-28.9

2

2.3

D. OTHER POPULATIONS lNMATES OOT·TO-COORT, etc. ESCAPED PAROLEES ( PAL/RALJ
1~AL CDCR POPULATION

20,833
2,169 22 11
18,4'10
320,054

253 21,086

+201

39 2,208 224
214 18,654

+205 - 17 +13

3,104 323,158 +11' 037

+0 . 9
+10.2 -7 . 0
~o .o
+3.5

CHANGE FROM LAST WEEK

A. ~TAL INSTITUTIONS

·119

+1

·118

(MEN, Subtotal)

-111

0

-111

(WOMEN, Subtotal )

8

•l

-7

B. PI\.ROLF:: !J. PAROLEES (PAL/RAL)

•'106 -437

•6

• '11 /.

0

·43'/

This repon contains the latest available reliable population Hgures from OBIS.

<:are1ully audlted, but arc preliminary, and Lherefor~ subjecL LO revision.

They have been

Figure excludes institution based camps. Tot al persons in camps, including base camps, are

4, 5!>'1 . Base camp at CMC l s included in inscitution counts.

ReporL # TPOP-lW. Questions:

(916) 327-3262 (CALNET) 467-3262.

Case 2:94-cv-00671-LKK-GGH Document 1349 Filed 07/26/2007 Page 27 of 29

WEEKLY INSTITUTION/CAMPS POPULATION DETAIL

MIDNIGHT July 4, 2007

INSTITUTIONS/CAMPS
MI\J.R
ASP (AVENAL SP) CCC (CAL CORRECTL CTR) CCI (CAL CORREC1'L lNST11'N) CIM (CAL INSTI1'N FOR MEN)
CM~' (CAL MEDICAL FACIL) CMC (CAL MEN'S COLONY) CRC (CAL REHAB CTR, MF.N ) CAL (CAl, SP, CALIPATRIA)
CEN (CAL SP, CENTINEl.A) COR (CAL Sl', CORCORAN) LAC (CAL SP, LOS ANGELES CO) SAC (CAL SP, SACRAMBNTO)
SQ (CAL SP, SAN QUENTIN) SOl, (CAL SP, SOLANO) SATF (CAL SATF AND SP - COR) CVSP (CIIUCKAWALLA VALLEY SP)
CTF (CORRL TRAING FAC) DVI (DEUEL VOCATL INSTITN) FOL (FOLSOM SP) IIDP (IIICH DESERT SP)
IRON (IRONWOOD SP) KVSP (KERN VALLEY SP) MCSP (MULI:: CREE:K SP) NKSP (NORTH KERN SP)
PDC (PI1'CHBSS DETENT CTR-RC) PBSP (PELICAN BAY SP) PVSP (PLEASANT VALLEY SP) RIO (RIO COSUMNES COR C1'R-RC)
RJD (RJ DONOVAN CORR FAClL) SVSP (SALINAS VAL SP) SRTA (SANTA RITA CO. JAIL RC) SBRN (SAN BRUNO CO. JAIL)
sec (SIERRA CONSERV CTR)
WSP (WASCO SP)

FF.LON/ OTHeR

CIVIL ADOICr

TOTAL

DESIGN PERCENT STAFFED CAPACITY OCCUPIED CAPACITY

7,G37 6,107 5,867 6,395
3, 054 6,562 3, 258 4,150
4' 857 5,581 4 , 842 3 , 213
5 , 167 6,121 7,326 3,974
6,974 3,982 4,120 4,681
4 '724 4,969 3,790 5,ft29
34 3,<;.47 5,319
423
4,691 4,653
850 34
6' 008 5,n2

7,637

2,920

261.5

6,107

3,883

157.3

5,867

2,757

212.8

24

6, 419

3,207

200.2

3,054

2,307

132.4

6,562

3,840

170.9

730

3,988

l,BH

219.8

4,150

2,308

179.8

4,857

2,308

210.4

?.

5,583

3,116

179.2

4,842

2 ,300

210 . 5

3,213

1,724

186 . 4

10

5,177

3,109

166 . 5

6,121

2,610

234.5

4

7,330

3,424

?.14.1

3,974

1,'/38

228.7

6,974

3,301

211.3

4

3,986

1,787

223.1

4,120

2,236

184.3

'I

4,688

2. 324

201.7

4,724

2,200

214.7

4,9G9

2,448

203.0

3,790

1,700

222.9

5

5,434

2,692

201.9

34 3,447 5,319
423

0 2,252 2,308
0

153.1 230.5

4,691

3,302

142.1

1

4' 654

2,298

202.5

850

0

34

60

56.7

6,008

3, 736

160.8

11

5,983

2, 834

211.1

7,710 6,174 5,896 6,46'l
3,316 6,574 4,000 4. 318
4,956 b' 450 4' 658 3,253
5,220 6,083 '}' 593 4,292
7,127 3, 911 4,078 4,706
4,809 4,946 4. 0 09 5,401
1,292 3,316 5,112
250
5,858 4. 606
550 60
6,215 5,717

MAI.E TOTAL:

154,211

798 155,009

78,843

196.6

1~7. 920

FF.MALE
CIW (CAL INST FOR WOMEN) CRC (CAL REHAB CTR, WOMEN) CCWF (CENT CAL WOMEN'S FACIL) RIO (RIO COS~NES COR CTR- RC) SRTJ\ (SANTA RITA CO. JAIL-RC) VSl' (VALLEY SP)

2,242 5
4,309 30 5
4,253

262

2,504

1,326

188.8

2

7

500

1.4

6

4,315

2,004

215.3

30

0

5

0

11

4 , 264

1,980

215 . 4

2,687 780
3,943 20 20
3,902

FEMALE TOTAL:

10,844

281

11,125

5,810

191.5

11,352

lNS'I'ITUTIONS/CAMPS TOTAL:
NTPOP l, Page 2

165,C55

1, 0'1'1

16~.134

o·L ~s:>

1 ~6. ~

lfJtj. 2'12

Case 2:94-cv-00671-LKK-GGH Document 1349 Filed 07/26/2007 Page 28 of 29

WEEKLY INSTITUTION/CAMPS POPULATION DETAIL

FELON/

MALE INSTITUTIONS

OTHER

ASP (AVENAL SP) CCC (CAL CORRBCTL CTR)

7,637

camps

2,045

Level I

1, 477

Level II

1 ,'192

Level III

1,093

CCI (CAL CORRE:CTL lNSTlTN)

Level I

l,S32

Level II

1,352

Level IV

814

SHU

701

Reception ctt· CIM (CAJ., 1NSTITN FOR MEN )

1 ' 4!68

Level 1

2,539

East - Reception Center

1,011

Reception center - Central 1,381

Reception Center - Nest

1,464

CMF (CJ\L MEDICAL FACIL)

Level T

169

Level I!

346

Level IIl

2,S39

CMC (CAL MEN ' S COLONY)

EasL

3,747

wesL

2,815

CRC (CAL REHAB CTR . MEN)

3,7.58

CAL (CAL SP, CALIPATRIA)

Level I

258

Level IV

3,892

CEN (CAL SP, C.E:liJTINE.LJ>.)

Level I

397

Level III

4,460

COR (CAL SP, CORCORAN)

Level I

860

Level III

346

Level IV

3' 092

SHU

1,273

PHU

10

LAC (CAL SP, LOS ANGEf,ES CO)

Level I

351

Level III/IV

1,439

Reception Center

3,052

SJ\C (CJ\L SP , SACRAMENTO)

Level r

349

PSU

1'/!:>

Level IV

2,689

SQ (CAL SP, SAJI/ QUENTIN)

Level I

6

Level II

1' '176

Condemned

510

Reception CenLer

2' 775

SOL (CAL SP, SOLANO) Level II

3 , 436

Level III

2,685

SM'F (CAL SATF AND SP - COR)

7 ,3.26

CVSP (CHUCKAWALLA VALLEY SP)

Level I

376

Level II

3,598

CTF (CORRL TRAING FAC ) Central-XI North- II/III

3 ,052 2,812

South-I

1,110

DVI (DF.UEJ, VOCATL INSTITN)

Level I/Il

6.84

Reception Center

3,29B

FOL (FOLSOM SP)

PSAP

166

TTP
Level I
Level u

113 404
1' 554

Level III

1,883

~TPOP-1A

CIVIL ADDICT
1 22
1
730
1 1
1 9 4
4

TOTAL 7,637
2,045 1' 477 1,492 l, 093
1,532 1 ,352
814 701 1,468
2,539 1 ,012 1,403 1' 465
169 346 2,539
3 ' 74 ., 2,815 3,988
258 3 , 892
397 4,460
860 346 3,093 1,274
10
351 1 '439 3,052
349 175 2,689
6 l, 777
610 2,784
3,436 2,685 '1,330
376 3,598
.3' 052 2,812 1, 110
684 3,302
166 113 404 1' 554 1,883

MIDNIGHT July 4, 2007

DESIGN PERCENT STAFF'ED

CAPACITY OCCUPIED CAPACITY

2, 920

261 .5

7' 710

1, 908 867 608 500

107 . 2 170 .4 2q:.. 4 218. 6

2,029 ),557 1,503 1,085

617

248 . 3

640

211 . 3

500

162.8

500

140 . 2

500

293 . 6

1 . 237 1 , 648
832 700 1,479

1,620 400 547 640

156.7 253 . 0 256 . 5 228.9

2 , 760 990
1,304 1,410

117 200 1 ,990

1-H .4 173. 0 127.6

177 400 2,739

2,425 1,415 1, 814

154.!> 198.9 219.8

3 '720 2,854
4' 000

208 2,100

124.0 185 . 3

408 3,910

208 2,100

190.9 212.4

408 4,548

4.92 1 , 100
628 872
24

174.8 31.5
492.5 146 . 1
41.7

876 2,373 1,044 1 ,133
24

200 1 ,600
500

175 . 5 S9.9
610. •1

400
3, OBO
1,178

192 192 1 ,340

181.8
91.1 200 . .,

368 192 2,693

115 93'/
637 1, 420

5.2 189.6
95.8 196.1

251 1' 6113
637 2,689

1,410 1,200 3' 424

243.7 223.8 214.1

3,608 2,475 7,593

208 1,530

180.8 235.2

408 3,884

1,391 1' 400
510

219.4 200.9 217 . 6

3,127 2,880 1,120

225 1, 56 2

304.0 211.4

6'1'1
3,234

129 131 200
480 1,296

128.7 86 . 3
202.0 323.7
145 . 3

200 203 1124
78'7 2,464

Case 2:94-cv-00671-LKK-GGH Document 1349 Filed 07/26/2007 Page 29 of 29

WEEKJ.Y TNS1'I'l'U'l'ION/CAMPS POPUC.ATION DETAIL

FELON/

MALE I NSTITUTIONS

OTHER

HDP (HIGH DESERT SP)

Level I

397

Level II

112

Level III

683

Level IV

2,906

Reception Center

583

IRON (IRONWOOD SP)

Level 1

282

Level III

4,44 2

KVSP (KERN VALLEY SP)

Level I/II

331

Level IV

4,638

MCSP (!Vf!JLE CREEK SP)

Level I/II

357

Level III

2,455

Level IV

978

NKSl' (NOR'l'H KERN SP)

Level I

191

Level III

594

Reception Center

4 , 644

l?DC (PITCHESS DETENT CTR-RC)

34

PBSP (PELICAN BAY SP)

Level I

316

Level III/IV

2,033

SHU

1 , 098

PVSP (PLEASANT VALLEY S?l

Level I/II

282

Level III/IV

5,037

RIO (RIO COSUMNES COR CTR-RC)

4?.3

RJD (RJ DONOVAN CORR FACIL)

Level I

313

Level lJ I

2,020

Reception Center

1,980

IV-SNY

378

SVSP (SALINAS VAL SP}

Level I/II

363

Leve l I!I/IV

4,290

SRTA (SANTA RITA CO . JAIL-RC)

850

SBRN (SAN BRUNO CO. JA!L}

34

sec (SIERRA CONSERV CTR)

camps-Men

2,112

Level I

1, 314

Level I I

1,662

Level III

920

WSP (I'IASCO SP)

Level I

270

Level II! Reception Center

441 5,261

MALE TOTAL:

154' 211

FEMAI,E INSTITUTIONS CIW (CAL INST FOR WOMEN)
rnsLitution
Reception Center Corr Trt Ctr Camps- women CRC (CAL REHAB CTR, WOMEN) CC..'WF (CENT CAL WOMEN ' S FACIL)
!nscitution Reception center Condemned RIO (RIO COSUMNES COR CTR RC) SRTA (SANTA RITA CO. Jl\IL-RC) VSP (VALLEY SP)
InsLitution Reception Center SHU FEMALE 'I'OTAL:

1,671 232 15 3?.4 5
3' 5?.6 768 15 30 5
3,394 809 50
10' 844

I NSTITUTIONS/CAMPS TOTAL: ff.TPOP-lA, !?AGE 2

165,055

ClV!L ADDICT

TOTAL

397

112

683

2,906

7

590

282 4 ,442

331 4,638

357 2,455
978

191

594

5

4,649

34

316 2,033 1,098

282 5,037
423

313 2,020 1,980
378

363 4,29 1
850 34

2,112 1, 314 1 ,662
920

270

441

11

5 , 272

798 155,009

238 22
2
2 3 3
2 9 281 1 , 079

1,909 254 17 324 7
3,529 771 15 30 5
3' 396 818 50
11,125
166,134

MTDN I Gil'!' Jul y 4, 2 00'1 DESJGN PI>RCI::N'l' S'J'APFED CAPACITY OCCUPIED CAPACITY

200 0
200 1,624
300

198 . 5
31)1.5 178.9 196 . 7

400 12 0
620 2,996
570

200 2,000

141.0 222 . 1

400 4,409

200 2,248

165.5 206 .3

780 4 ,166

:?.00 1' 000
500

178 . 5 245.5 195.6

792 2,287
930

208 200 2,284
0

91.8 297.0
203 .5

408 380 4,613 1,292

200
996 1,056

158 . 0 204 . 1 104 . 0

392 1, 815 1,109

208 2,100
0

135 . 6
239.~

558 4,554
250

200 1, 100
900 1,102

156 . 5 183.6 220.0
34.3

400 2,177 7.,179 1,102

200 2,098
0 60

181.5 204.5
56.7

640 3,966
550 60

2,010 618 608
500

105.1 212 . 6 273.4 184.0

2,010 1, 378 1 ,634 1,193

200 ?.SO 2,381 78,843

135.0 176.4 221.1 196.6

296 475 4,946 157 ,920

792 214
0 320 500
1,633 3!:i6 15 0 0
1,580 356
41
5,810
84 , 653

241 . 0 llB ..,
101 .3 1.4
216 . 1 216.6 100 . 0
214 . 9 229 . 8 113 . 6 191.5
196 . 3

1, 96? 400 0 320
no
3,162 766 15 20 20
3,132 708
62
ll' 352
169,272

 
 Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 1 of 168
CLOSED,LEAD_CASE
U.S. District Court Eastern District of California − Live System (Sacramento) CIVIL DOCKET FOR CASE #: 2:94−cv−00671−LKK−GGH

Valdivia, et al v. Schwarzenegger, et al Assigned to: Judge Lawrence K. Karlton Referred to: Magistrate Judge Gregory G. Hollows Demand: $0 Case in other court: USCA−9th Circuit, 08−15889
9th Circuit, 12−15457
9th Circuit, 12−15492
95−80113 Cause: 42:1983 Civil Rights Act
Special Master

Date Filed: 05/02/1994 Date Terminated: 12/05/2002 Jury Demand: Both Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Chase Riveland

represented by Chase Riveland Riveland Associates 5714 Deer Harbor Road P.O. Box 367 Deer Harbor, WA 98243 Email: riveland@rockisland.com PRO SE

Special Master Virginia Morrison

represented by Virginia Morrison One Cedar Avenue Kentfield, CA 94904 Email: gmorrison@healthcaremediations.com PRO SE

Special Master Nancy Campbell

represented by Nancy Campbell 8232 Hansen Rd. NE Bainbridge Island, WA 98110 Email: nancy@nmcampbell.com PRO SE

Plaintiff Vincent Cervantes

represented by Andrea M. Miller Nageley Meredith &Miller, Inc. 8801 Folsom Boulevard Suite 172 Sacramento, CA 95826 916−386−8282 ext. 422 Fax: 916−386−8952 Email: amiller@nmlawfirm.com LEAD ATTORNEY

Michael Bien Rosen Bien Galvan &Grunfeld LLP 315 Montgomery Street 10th Floor San Francisco, CA 94104 (415) 433−6830 Fax: (415) 433−7104 Email: mbien@rbgg.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 2 of 168
Alexander L. Landon Law Offices of Alex Landon 2442 Fourth Avenue San Diego, CA 92101 619−232−6022 Email: mccabeatty@aol.com ATTORNEY TO BE NOTICED
Donald Specter Prison Law Office 1917 Fifth Street Berkeley, CA 94710−1916 510−280−2621 Fax: 510−280−2704 Email: dspecter@prisonlaw.com ATTORNEY TO BE NOTICED
Ernest Galvan Rosen Bien Galvan &Grunfeld LLP 315 Montgomery Street 10th Floor San Francisco, CA 94104 (415) 433−6830 x223 Fax: (415) 433−7104 Email: egalvan@rbgg.com ATTORNEY TO BE NOTICED
Gay Crosthwait Grunfeld Rosen Bien Galvan and Grunfeld LLP 315 Montgomery Street 10th Floor San Francisco, CA 94104 415−433−6830 x 243 Fax: 415−433−7104 Email: ggrunfeld@rbgg.com ATTORNEY TO BE NOTICED
Geoffrey Thomas Holtz Bingham McCutchen LLP 3 Embarcadero Center, ste 1800 San Francisco, CA 94111 (415) 393−2390 Fax: (415) 393−2286 Email: g.holtz@bingham.com ATTORNEY TO BE NOTICED
Holly MacLeish Baldwin Rosen Bien &Galvan, LLP 315 Montgomery Street 10th Floor San Francisco, CA 94104 510−682−8683 Email: hmbaldwin@me.com TERMINATED: 10/30/2012
Karen Kennard Bingham McCutchen LLP Three Embarcadero Center Suite 1800 San Francisco, CA 94111 415−393−2626 Email: karen.kennard@bingham.com TERMINATED: 05/09/2007
Kristen A Palumbo

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 3 of 168

Bingham McCutchen LLP Three Embarcadero Center, Suite 1800 San Francisco, CA 94111 (415) 393−2892 Fax: (415) 393−2286 Email: kristen.palumbo@bingham.com ATTORNEY TO BE NOTICED

Laurel M Nelson Law Offices of Laurel M Nelson P O Box 462075 Escondido, CA 92046 619−749−8203 TERMINATED: 08/14/1996

Shirley Huey Rosen Bien Galvan and Grunfeld LLP 315 Montgomery Street 10th Floor San Francisco, CA 94104 (415) 433−6830 Fax: (415) 433−7104 Email: shuey@rbgg.com TERMINATED: 10/30/2012

Stephen J. Perrello , Jr. Law Office of Stephen J. Perrello 6363 Caminito Lazaro San Diego, CA 92111 858−277−5939 TERMINATED: 09/01/2009

Susan Lynn Burrell Youth Law Center 417 Montgomery Street Suite 900 San Francisco, CA 94104 415−543−3379 3911 Fax: 415−956−9022 Email: sburrell@ylc.org ATTORNEY TO BE NOTICED

Plaintiff Steven G Williams

represented by Andrea M. Miller (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael Bien (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alexander L. Landon (See above for address) ATTORNEY TO BE NOTICED

Donald Specter (See above for address) ATTORNEY TO BE NOTICED

Ernest Galvan (See above for address) ATTORNEY TO BE NOTICED

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 4 of 168

Plaintiff Alfred Yancy

Gay Crosthwait Grunfeld (See above for address) ATTORNEY TO BE NOTICED
Geoffrey Thomas Holtz (See above for address) ATTORNEY TO BE NOTICED
Holly MacLeish Baldwin (See above for address) TERMINATED: 10/30/2012
Karen Kennard (See above for address) TERMINATED: 05/09/2007
Kristen A Palumbo (See above for address) ATTORNEY TO BE NOTICED
Laurel M Nelson (See above for address) TERMINATED: 08/14/1996
Shirley Huey (See above for address) TERMINATED: 10/30/2012
Stephen J. Perrello , Jr. (See above for address) TERMINATED: 09/01/2009
Susan Lynn Burrell (See above for address) ATTORNEY TO BE NOTICED
represented by Michael Bien (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Benjamin Laurence Pavone Pavone &Fonner 7676 Hazard Center Dr., 5th Floor San Diego, CA 92108 619−224−8885 Fax: 619−224−8886 Email: bpavone@cox.net TERMINATED: 02/08/2006
Donald Specter (See above for address) ATTORNEY TO BE NOTICED
Ernest Galvan (See above for address) ATTORNEY TO BE NOTICED
Gay Crosthwait Grunfeld (See above for address) ATTORNEY TO BE NOTICED

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 5 of 168

Geoffrey Thomas Holtz (See above for address) ATTORNEY TO BE NOTICED

Holly MacLeish Baldwin (See above for address) TERMINATED: 10/30/2012

Karen Kennard (See above for address) TERMINATED: 05/09/2007

Kristen A Palumbo (See above for address) ATTORNEY TO BE NOTICED

Shirley Huey (See above for address) TERMINATED: 10/30/2012

Susan Lynn Burrell (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Hossie Welch

represented by Michael Bien (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Donald Specter (See above for address) ATTORNEY TO BE NOTICED

Erika C. Aljens− INACTIVE CA Bar Nelson Levine de Luca &Horst, LLC 518 Township Line Road Suite 300 Blue Bell, PA 19422 215−358−5134 Fax: 215−358−5101 TERMINATED: 04/16/2003

Ernest Galvan (See above for address) ATTORNEY TO BE NOTICED

Gay Crosthwait Grunfeld (See above for address) ATTORNEY TO BE NOTICED

Geoffrey Thomas Holtz (See above for address) ATTORNEY TO BE NOTICED

Holly MacLeish Baldwin (See above for address) TERMINATED: 10/30/2012

Karen Kennard (See above for address) TERMINATED: 05/09/2007

Kristen A Palumbo

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 6 of 168

(See above for address) ATTORNEY TO BE NOTICED

Shirley Huey (See above for address) TERMINATED: 10/30/2012

Susan Lynn Burrell (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Jerry Valdivia

represented by Michael Bien (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sanford Jay Rosen Rosen Bien &Galvan, LLP 315 Montgomery Street 10th Floor San Francisco, CA 94104 (415) 433−6830 x206 Fax: (415) 433−7104 Email: srosen@rbgg.com LEAD ATTORNEY

Donald Specter (See above for address) ATTORNEY TO BE NOTICED

Ernest Galvan (See above for address) ATTORNEY TO BE NOTICED

Gay Crosthwait Grunfeld (See above for address) ATTORNEY TO BE NOTICED

Geoffrey Thomas Holtz (See above for address) ATTORNEY TO BE NOTICED

Holly MacLeish Baldwin (See above for address) TERMINATED: 10/30/2012

Karen Kennard (See above for address) TERMINATED: 05/09/2007

Kenneth M. Walczak Rosen Bien &Galvan, LLP 315 Montgomery Street 10th Floor San Francisco, CA 94104 415−433−6830 Fax: 415−433−7104 Email: kwalczak@rbgg.com ATTORNEY TO BE NOTICED

Kristen A Palumbo (See above for address) ATTORNEY TO BE NOTICED

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 7 of 168

Plaintiff John Hamre

Loren Grey Stewart Rosen Bien &Galvan, LLP 315 Montgomery Street 10th Floor San Francisco, CA 94104 (415) 433−6830 Fax: (415) 433−7104 Email: lstewart@rbg−law.com TERMINATED: 08/27/2009
Lori Rifkin Rifkin Law Office P.O. Box 19169 Oakland, CA 94619 United Sta 415−685−9351 Email: lrifkin@rifkinlawoffice.com TERMINATED: 08/27/2009
Maria V. Morris Southern Poverty Law Center 400 Washington Av Montgomery, AL 36104 334−956−8200 Email: maria.morris@splcenter.org TERMINATED: 09/14/2011
Shirley Huey (See above for address) TERMINATED: 10/30/2012
Stephen J. Perrello , Jr. (See above for address) TERMINATED: 09/01/2009
Susan Lynn Burrell (See above for address) ATTORNEY TO BE NOTICED
represented by Michael Bien (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ernest Galvan (See above for address) ATTORNEY TO BE NOTICED
Gay Crosthwait Grunfeld (See above for address) ATTORNEY TO BE NOTICED
Geoffrey Thomas Holtz (See above for address) ATTORNEY TO BE NOTICED
Holly MacLeish Baldwin (See above for address) TERMINATED: 10/30/2012
Karen Kennard (See above for address)

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 8 of 168

TERMINATED: 05/09/2007

Kristen A Palumbo (See above for address) ATTORNEY TO BE NOTICED

Shirley Huey (See above for address) TERMINATED: 10/30/2012

Susan Lynn Burrell (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Francis Culotta

represented by Michael Bien (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ernest Galvan (See above for address) ATTORNEY TO BE NOTICED

Gay Crosthwait Grunfeld (See above for address) ATTORNEY TO BE NOTICED

Geoffrey Thomas Holtz (See above for address) ATTORNEY TO BE NOTICED

Holly MacLeish Baldwin (See above for address) TERMINATED: 10/30/2012

Karen Kennard (See above for address) TERMINATED: 05/09/2007

Kristen A Palumbo (See above for address) ATTORNEY TO BE NOTICED

Shirley Huey (See above for address) TERMINATED: 10/30/2012

Susan Lynn Burrell (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Jeffrey H Malone

represented by Michael Bien (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ernest Galvan (See above for address) ATTORNEY TO BE NOTICED

Gay Crosthwait Grunfeld (See above for address)

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 9 of 168

ATTORNEY TO BE NOTICED

Geoffrey Thomas Holtz (See above for address) ATTORNEY TO BE NOTICED

Holly MacLeish Baldwin (See above for address) TERMINATED: 10/30/2012

Karen Kennard (See above for address) TERMINATED: 05/09/2007

Kristen A Palumbo (See above for address) ATTORNEY TO BE NOTICED

Shirley Huey (See above for address) TERMINATED: 10/30/2012

Susan Lynn Burrell (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Russell P. Hall

represented by Michael Bien (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ernest Galvan (See above for address) ATTORNEY TO BE NOTICED

Gay Crosthwait Grunfeld (See above for address) ATTORNEY TO BE NOTICED

Geoffrey Thomas Holtz (See above for address) ATTORNEY TO BE NOTICED

Shirley Huey (See above for address) TERMINATED: 10/30/2012

Susan Lynn Burrell (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Daren Jean Miller

represented by Michael Bien (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ernest Galvan (See above for address) ATTORNEY TO BE NOTICED

Gay Crosthwait Grunfeld (See above for address)

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 10 of 168
ATTORNEY TO BE NOTICED
Geoffrey Thomas Holtz (See above for address) ATTORNEY TO BE NOTICED
Shirley Huey (See above for address) TERMINATED: 10/30/2012
Susan Lynn Burrell (See above for address) ATTORNEY TO BE NOTICED

V. Defendant California State TERMINATED: 09/13/2002
Defendant Joe Sandoval Secretary of the Youth and Adult Correctional Agency TERMINATED: 09/13/2002
Defendant Craig L Brown Undersecretary of the California Youth and Adult Correctional Agency TERMINATED: 11/01/1995 Defendant James Gomez TERMINATED: 02/21/1997
Defendant Judith A McGillivray Deputy Director of the Department of Corrections, Parole and Community Service Division

represented by Michael Gregory Lee Department Of Justice 1300 I Street, Suite 125 P.O. Box 944255 Sacramento, CA 94244 916−322−6109 Fax: 916−324−5205 Email: Michael.Lee@doj.ca.gov TERMINATED: 02/24/2000
William V. Cashdollar Office of the Attorney General 1300 I Street Sacramento, CA 94244−2550 (916) 327−5596 Fax: (916) 324−5205 Email: William.Cashdollar@doj.ca.gov TERMINATED: 09/13/2002
represented by Michael Gregory Lee (See above for address) TERMINATED: 02/24/2000
William V. Cashdollar (See above for address) TERMINATED: 09/13/2002
represented by Michael Gregory Lee (See above for address) TERMINATED: 02/24/2000
represented by Michael Gregory Lee (See above for address) TERMINATED: 02/24/2000
represented by Michael Gregory Lee (See above for address) TERMINATED: 02/24/2000

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 11 of 168

TERMINATED: 12/09/1994

Defendant
Michael Connolly Acting Cheif Deputy Commissioner of the Board of Prison Terms

represented by Benjamin Terrence Rice California Department of Corrections and Rehabilitation Office of Legal Affairs 1515 S Street Suite 314, South Sacramento, CA 95811 916−323−6001 Email: benjamin.rice@cdcr.ca.gov ATTORNEY TO BE NOTICED

Jessica R. Devencenzi Attorney General's Office for the State of California Department of Justice 1300 I Street Suite 1101 Sacramento, CA 94244−2550 916−322−6104 Fax: 916−324−5205 Email: jessica.devencenzi@doj.ca.gov TERMINATED: 12/08/2008

Maya Manian California Attorney General's Office Department of Justice 455 Golden Gate Avenue Suite 11000 San Francisco, CA 94102−7004 415−703−5500 TERMINATED: 10/07/2004

Michael Gregory Lee (See above for address) TERMINATED: 02/24/2000

Paul B Mello Hanson Bridgett LLP 1676 N. California Blvd. Suite 620 Walnut Creek, CA 94596 925−746−8460 Fax: 925−746−8492 Email: pmello@hansonbridgett.com ATTORNEY TO BE NOTICED

Sally Anne Johnson Hanson Bridgett LLP 425 Market Street 26th Floor San Francisco, CA 94105 415−777−3200−5068 Fax: 415−541−9366 Email: ajohnson@hansonbridgett.com TERMINATED: 03/12/2012

Vickie Pochelle Whitney Attorney General's Office for the State of California 1300 I Street Suite 125

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 12 of 168

P.O. Box 944255 Sacramento, CA 95814 (916) 445−8194 Fax: (916) 324−5205 Email: vickie.whitney@doj.ca.gov TERMINATED: 12/08/2008

William V. Cashdollar (See above for address) TERMINATED: 09/13/2002

Defendant
Tom Maddock Undersecretary of the California Youth Authority TERMINATED: 09/13/2002

represented by Michael Gregory Lee (See above for address) TERMINATED: 02/24/2000
William V. Cashdollar (See above for address) TERMINATED: 09/13/2002

Defendant
Gregory W Harding TERMINATED: 09/13/2002

represented by William V. Cashdollar (See above for address) TERMINATED: 09/13/2002

Defendant
Eddie Myers TERMINATED: 09/13/2002

represented by William V. Cashdollar (See above for address) TERMINATED: 09/13/2002

Defendant Marisela Montes

represented by Benjamin Terrence Rice (See above for address) ATTORNEY TO BE NOTICED

Jessica R. Devencenzi (See above for address) TERMINATED: 12/08/2008

Katherine Tebrock Attorney General's Office for the State of California Department of Justice 1300 I Street Suite 1101 Sacramento, CA 94244−2550 916−323−2929 Email: katherine.tebrock@cdcr.ca.gov TERMINATED: 06/20/2007

Maya Manian (See above for address) TERMINATED: 10/07/2004

Paul B Mello (See above for address) ATTORNEY TO BE NOTICED

Sally Anne Johnson (See above for address) TERMINATED: 03/12/2012 ATTORNEY TO BE NOTICED

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 13 of 168

Defendant James W. Nielsen Chairman
Defendant Steven G Baker TERMINATED: 09/13/2002 Defendant Carol J Bentley

Vickie Pochelle Whitney (See above for address) TERMINATED: 12/08/2008
William V. Cashdollar (See above for address) TERMINATED: 09/13/2002
represented by Benjamin Terrence Rice (See above for address) ATTORNEY TO BE NOTICED
Jessica R. Devencenzi (See above for address) TERMINATED: 12/08/2008
Katherine Tebrock (See above for address) TERMINATED: 06/20/2007
Maya Manian (See above for address) TERMINATED: 10/07/2004
Paul B Mello (See above for address) ATTORNEY TO BE NOTICED
Sally Anne Johnson (See above for address) TERMINATED: 03/12/2012 ATTORNEY TO BE NOTICED
Vickie Pochelle Whitney (See above for address) TERMINATED: 12/08/2008
William V. Cashdollar (See above for address) TERMINATED: 09/13/2002
represented by Michael Gregory Lee (See above for address) TERMINATED: 02/24/2000
William V. Cashdollar (See above for address) TERMINATED: 09/13/2002
represented by Benjamin Terrence Rice (See above for address) ATTORNEY TO BE NOTICED
Jessica R. Devencenzi (See above for address) TERMINATED: 12/08/2008
Maya Manian (See above for address)

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 14 of 168

TERMINATED: 10/07/2004

Michael Gregory Lee (See above for address) TERMINATED: 02/24/2000

Paul B Mello (See above for address) ATTORNEY TO BE NOTICED

Sally Anne Johnson (See above for address) TERMINATED: 03/12/2012 ATTORNEY TO BE NOTICED

Vickie Pochelle Whitney (See above for address) TERMINATED: 12/08/2008

William V. Cashdollar (See above for address) TERMINATED: 09/13/2002

Defendant Thomas J Giaquinto

represented by Benjamin Terrence Rice (See above for address) ATTORNEY TO BE NOTICED

Jessica R. Devencenzi (See above for address) TERMINATED: 12/08/2008

Katherine Tebrock (See above for address) TERMINATED: 06/20/2007

Maya Manian (See above for address) TERMINATED: 10/07/2004

Michael Gregory Lee (See above for address) TERMINATED: 02/24/2000

Paul B Mello (See above for address) ATTORNEY TO BE NOTICED

Sally Anne Johnson (See above for address) TERMINATED: 03/12/2012 ATTORNEY TO BE NOTICED

Vickie Pochelle Whitney (See above for address) TERMINATED: 12/08/2008

William V. Cashdollar (See above for address) TERMINATED: 09/13/2002

Defendant John W Gillis

represented by Benjamin Terrence Rice (See above for address)

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 15 of 168

ATTORNEY TO BE NOTICED

Katherine Tebrock (See above for address) TERMINATED: 06/20/2007

Maya Manian (See above for address) TERMINATED: 10/07/2004

Michael Gregory Lee (See above for address) TERMINATED: 02/24/2000

Paul B Mello (See above for address) ATTORNEY TO BE NOTICED

Sally Anne Johnson (See above for address) TERMINATED: 03/12/2012 ATTORNEY TO BE NOTICED

Vickie Pochelle Whitney (See above for address) TERMINATED: 12/08/2008

William V. Cashdollar (See above for address) TERMINATED: 09/13/2002

Defendant Manuel C Guaderrama

represented by Benjamin Terrence Rice (See above for address) ATTORNEY TO BE NOTICED

Jessica R. Devencenzi (See above for address) TERMINATED: 12/08/2008

Maya Manian (See above for address) TERMINATED: 10/07/2004

Michael Gregory Lee (See above for address) TERMINATED: 02/24/2000

Paul B Mello (See above for address) ATTORNEY TO BE NOTICED

Sally Anne Johnson (See above for address) TERMINATED: 03/12/2012 ATTORNEY TO BE NOTICED

Vickie Pochelle Whitney (See above for address) TERMINATED: 12/08/2008

William V. Cashdollar (See above for address) TERMINATED: 09/13/2002

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 16 of 168

Defendant Ron E Koenig
Defendant Arthur F Van Court

represented by Benjamin Terrence Rice (See above for address) ATTORNEY TO BE NOTICED
Jessica R. Devencenzi (See above for address) TERMINATED: 12/08/2008
Katherine Tebrock (See above for address) TERMINATED: 06/20/2007
Maya Manian (See above for address) TERMINATED: 10/07/2004
Michael Gregory Lee (See above for address) TERMINATED: 02/24/2000
Paul B Mello (See above for address) ATTORNEY TO BE NOTICED
Sally Anne Johnson (See above for address) TERMINATED: 03/12/2012 ATTORNEY TO BE NOTICED
Vickie Pochelle Whitney (See above for address) TERMINATED: 12/08/2008
William V. Cashdollar (See above for address) TERMINATED: 09/13/2002
represented by Benjamin Terrence Rice (See above for address) ATTORNEY TO BE NOTICED
Jessica R. Devencenzi (See above for address) TERMINATED: 12/08/2008
Maya Manian (See above for address) TERMINATED: 10/07/2004
Michael Gregory Lee (See above for address) TERMINATED: 02/24/2000
Paul B Mello (See above for address) ATTORNEY TO BE NOTICED
Sally Anne Johnson (See above for address) TERMINATED: 03/12/2012 ATTORNEY TO BE NOTICED

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 17 of 168

Defendant Ted Rich TERMINATED: 09/13/2002
Defendant Tom Maddock TERMINATED: 09/13/2002 Defendant Quintin L Villanueva Secretary of Youth and Adult Correctional Agency
Defendant Cal A Terhune Director of CA Dept of Corrections

Vickie Pochelle Whitney (See above for address) TERMINATED: 12/08/2008
William V. Cashdollar (See above for address) TERMINATED: 09/13/2002
represented by Michael Gregory Lee (See above for address) TERMINATED: 02/24/2000
William V. Cashdollar (See above for address) TERMINATED: 09/13/2002
represented by Michael Gregory Lee (See above for address) TERMINATED: 02/24/2000
represented by Benjamin Terrence Rice (See above for address) ATTORNEY TO BE NOTICED
Jessica R. Devencenzi (See above for address) TERMINATED: 12/08/2008
Katherine Tebrock (See above for address) TERMINATED: 06/20/2007
Maya Manian (See above for address) TERMINATED: 10/07/2004
Paul B Mello (See above for address) ATTORNEY TO BE NOTICED
Sally Anne Johnson (See above for address) TERMINATED: 03/12/2012 ATTORNEY TO BE NOTICED
Vickie Pochelle Whitney (See above for address) TERMINATED: 12/08/2008
William V. Cashdollar (See above for address) TERMINATED: 09/13/2002
represented by Benjamin Terrence Rice (See above for address) ATTORNEY TO BE NOTICED

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 18 of 168

Jessica R. Devencenzi (See above for address) TERMINATED: 12/08/2008

Katherine Tebrock (See above for address) TERMINATED: 06/20/2007

Maya Manian (See above for address) TERMINATED: 10/07/2004

Paul B Mello (See above for address) ATTORNEY TO BE NOTICED

Sally Anne Johnson (See above for address) TERMINATED: 03/12/2012 ATTORNEY TO BE NOTICED

Vickie Pochelle Whitney (See above for address) TERMINATED: 12/08/2008

William V. Cashdollar (See above for address) TERMINATED: 09/13/2002

Defendant
Michael Connolly Acting Chief Deputy Commissioners of the Board of Prison Terms of the State of CA

represented by Benjamin Terrence Rice (See above for address) ATTORNEY TO BE NOTICED
Jessica R. Devencenzi (See above for address) TERMINATED: 12/08/2008

Maya Manian (See above for address) TERMINATED: 10/07/2004

Paul B Mello (See above for address) ATTORNEY TO BE NOTICED

Vickie Pochelle Whitney (See above for address) TERMINATED: 12/08/2008

William V. Cashdollar (See above for address) TERMINATED: 09/13/2002

Defendant
Edward McNair Acting Chief Deputy Commissioners of the Board of Prison Terms of the State of CA

represented by Benjamin Terrence Rice (See above for address) ATTORNEY TO BE NOTICED
Erika C. Aljens− INACTIVE CA Bar (See above for address) TERMINATED: 04/16/2003

Jessica R. Devencenzi

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 19 of 168

(See above for address) TERMINATED: 12/08/2008

Katherine Tebrock (See above for address) TERMINATED: 06/20/2007

Maya Manian (See above for address) TERMINATED: 10/07/2004

Michael Gregory Lee (See above for address) TERMINATED: 02/24/2000

Paul B Mello (See above for address) ATTORNEY TO BE NOTICED

Sally Anne Johnson (See above for address) TERMINATED: 03/12/2012 ATTORNEY TO BE NOTICED

Thomas Stuart Patterson Office of the California Attorney General 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102 (415) 703−5727 Fax: (415) 703−5843 Email: thomas.patterson@doj.ca.gov TERMINATED: 03/22/2004

Vickie Pochelle Whitney (See above for address) TERMINATED: 12/08/2008

William V. Cashdollar (See above for address) TERMINATED: 09/13/2002

Defendant
Gray Davis TERMINATED: 09/13/2002

represented by Erika C. Aljens− INACTIVE CA Bar (See above for address) TERMINATED: 04/16/2003

Thomas Stuart Patterson (See above for address) TERMINATED: 03/22/2004

William V. Cashdollar (See above for address) TERMINATED: 09/13/2002

Defendant
Daly TERMINATED: 09/13/2002

represented by Erika C. Aljens− INACTIVE CA Bar (See above for address) TERMINATED: 04/16/2003

Thomas Stuart Patterson (See above for address) TERMINATED: 03/22/2004

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 20 of 168

Defendant
− Angele TERMINATED: 09/13/2002

represented by Erika C. Aljens− INACTIVE CA Bar (See above for address) TERMINATED: 04/16/2003

Katherine Tebrock (See above for address) TERMINATED: 06/20/2007

Thomas Stuart Patterson (See above for address) TERMINATED: 03/22/2004

Defendant
Presley TERMINATED: 09/13/2002

represented by Erika C. Aljens− INACTIVE CA Bar (See above for address) TERMINATED: 04/16/2003

Katherine Tebrock (See above for address) TERMINATED: 06/20/2007

Thomas Stuart Patterson (See above for address) TERMINATED: 03/22/2004

Defendant
− Bordonaro TERMINATED: 09/13/2002

represented by Erika C. Aljens− INACTIVE CA Bar (See above for address) TERMINATED: 04/16/2003

Katherine Tebrock (See above for address) TERMINATED: 06/20/2007

Thomas Stuart Patterson (See above for address) TERMINATED: 03/22/2004

Defendant
− Alameida TERMINATED: 09/13/2002

represented by Erika C. Aljens− INACTIVE CA Bar (See above for address) TERMINATED: 04/16/2003

Katherine Tebrock (See above for address) TERMINATED: 06/20/2007

Thomas Stuart Patterson (See above for address) TERMINATED: 03/22/2004

Defendant
Stephens TERMINATED: 09/13/2002

represented by Erika C. Aljens− INACTIVE CA Bar (See above for address) TERMINATED: 04/16/2003

Katherine Tebrock (See above for address) TERMINATED: 06/20/2007

Thomas Stuart Patterson

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 21 of 168

(See above for address) TERMINATED: 03/22/2004

Defendant
− Munoz TERMINATED: 09/13/2002

represented by Erika C. Aljens− INACTIVE CA Bar (See above for address) TERMINATED: 04/16/2003

Katherine Tebrock (See above for address) TERMINATED: 06/20/2007

Thomas Stuart Patterson (See above for address) TERMINATED: 03/22/2004

Defendant
− Granlund TERMINATED: 09/13/2002

represented by Erika C. Aljens− INACTIVE CA Bar (See above for address) TERMINATED: 04/16/2003

Defendant
− Lawin TERMINATED: 09/13/2002

represented by Erika C. Aljens− INACTIVE CA Bar (See above for address) TERMINATED: 04/16/2003

Thomas Stuart Patterson (See above for address) TERMINATED: 03/22/2004

Defendant
Moore TERMINATED: 09/13/2002

represented by Erika C. Aljens− INACTIVE CA Bar (See above for address) TERMINATED: 04/16/2003

Thomas Stuart Patterson (See above for address) TERMINATED: 03/22/2004

Defendant
California Attorneys Administrative Judges and Hearing Officers in State Employment

represented by Benjamin Terrence Rice (See above for address) ATTORNEY TO BE NOTICED

Jessica R. Devencenzi (See above for address) TERMINATED: 12/08/2008

Paul B Mello (See above for address) ATTORNEY TO BE NOTICED

Peter D Nussbaum Altshuler Berzon Nussbaum Rubin and Demain 177 Post Street Suite 300 San Francisco, CA 94108 415−421−7151 Email: pnussbaum@altshulerberzon.com TERMINATED: 01/30/2006

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Sally Anne Johnson (See above for address) TERMINATED: 03/12/2012 ATTORNEY TO BE NOTICED

Vickie Pochelle Whitney (See above for address) TERMINATED: 12/08/2008

Defendant Arnold Schwarzenegger

represented by Samantha Derin Wolff Hanson Bridgett, LLP 425 Market Street 26th Floor San Francisco, CA 94105 415−995−5020 Fax: 415−995−3547 Email: swolff@hansonbridgett.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Benjamin Terrence Rice (See above for address) ATTORNEY TO BE NOTICED

Jessica R. Devencenzi (See above for address) TERMINATED: 12/08/2008

Katherine Tebrock (See above for address) TERMINATED: 06/20/2007

Maya Manian (See above for address) TERMINATED: 10/07/2004

Paul B Mello (See above for address) ATTORNEY TO BE NOTICED

Renju Palanilkumuryil Jacob (415) 995−5049 Fax: (415) 541−9366 Email: rjacob@hansonbridgett.com TERMINATED: 10/03/2012

Sally Anne Johnson (See above for address) TERMINATED: 03/12/2012 ATTORNEY TO BE NOTICED

Thomas Stuart Patterson (See above for address) TERMINATED: 03/22/2004

Vickie Pochelle Whitney (See above for address) TERMINATED: 12/08/2008

Defendant Edmund G. Brown, Jr.

represented by Paul B Mello (See above for address) LEAD ATTORNEY

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ATTORNEY TO BE NOTICED

Walter R. Schneider Hanson Bridgett LLP 425 Market Street 26th Floor San Francisco, CA 94105 415−995−5078 Fax: 415−541−9366 Email: wschneider@hansonbridgett.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Megan Oliver Thompson Hanson Bridgett LLP 425 Market Street 26th Floor San Francisco, CA 94105 415−777−3200 Fax: 415−541−9366 Email: moliverthompson@hansonbridgett.com ATTORNEY TO BE NOTICED

Paul B. Gruwell Hanson Bridgett LLP 425 Market Street 26th Floor San Francisco, CA 94105 415−777−3200 Fax: 415−541−9366 Email: pgruwell@hansonbridgett.com ATTORNEY TO BE NOTICED

Renju Palanilkumuryil Jacob (See above for address) TERMINATED: 10/03/2012

Sally Anne Johnson (See above for address) TERMINATED: 03/12/2012 ATTORNEY TO BE NOTICED

Samantha Derin Wolff (See above for address) ATTORNEY TO BE NOTICED

Amicus
California Attorneys for Criminal Justice

represented by John Timothy Philipsborn Law Offices of John T. Philipsborn 507 Polk Street, Suite 250 San Francisco, CA 94102 (415) 771−3801 x25 Fax: (415) 771−3218 Email: jphilipsbo@aol.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
San Diego Criminal Defense Bar Association

represented by Mark F. Adams Attorney At Law Defense Bar Association 964 Fifth Ave., Suite 335 San Diego, CA 92101 619−239−4344−11

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 24 of 168

Fax: 619−544−1429 Email: markadamsesq@yahoo.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus
Criminal Defense Lawyers Club of San Diego

represented by Michael J. McCabe Criminal Defense Lawyers Club of San Diego 2442 Fourth Avenue San Diego, CA 92101 619−231−1181 Email: Mccabeatty@aol.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Movant
County of Placer TERMINATED: 12/23/2011

represented by Valerie D Flood Placer County Counsel 175 Fulweiler Avenue Auburn, CA 95603 (530) 889−4044 Fax: (530) 889−4069 Email: countycounsel@placer.ca.gov TERMINATED: 12/23/2011

Plaintiff Nghia Buckius

represented by Michael Bien (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ernest Galvan (See above for address) ATTORNEY TO BE NOTICED

Gay Crosthwait Grunfeld (See above for address) ATTORNEY TO BE NOTICED

Geoffrey Thomas Holtz (See above for address) ATTORNEY TO BE NOTICED

Holly MacLeish Baldwin (See above for address) TERMINATED: 10/30/2012

Kristen A Palumbo (See above for address) ATTORNEY TO BE NOTICED

Shirley Huey (See above for address) TERMINATED: 10/30/2012

Susan Lynn Burrell (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Mario Carillo

represented by

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 25 of 168

Michael Bien (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ernest Galvan (See above for address) ATTORNEY TO BE NOTICED

Gay Crosthwait Grunfeld (See above for address) ATTORNEY TO BE NOTICED

Geoffrey Thomas Holtz (See above for address) ATTORNEY TO BE NOTICED

Holly MacLeish Baldwin (See above for address) TERMINATED: 10/30/2012

Kristen A Palumbo (See above for address) ATTORNEY TO BE NOTICED

Shirley Huey (See above for address) TERMINATED: 10/30/2012

Susan Lynn Burrell (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Phillip Castillo

represented by Michael Bien (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ernest Galvan (See above for address) ATTORNEY TO BE NOTICED

Gay Crosthwait Grunfeld (See above for address) ATTORNEY TO BE NOTICED

Geoffrey Thomas Holtz (See above for address) ATTORNEY TO BE NOTICED

Holly MacLeish Baldwin (See above for address) TERMINATED: 10/30/2012

Kristen A Palumbo (See above for address) ATTORNEY TO BE NOTICED

Shirley Huey (See above for address) TERMINATED: 10/30/2012

Susan Lynn Burrell

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 26 of 168

(See above for address) ATTORNEY TO BE NOTICED

Plaintiff George Cortes

represented by Michael Bien (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ernest Galvan (See above for address) ATTORNEY TO BE NOTICED

Gay Crosthwait Grunfeld (See above for address) ATTORNEY TO BE NOTICED

Geoffrey Thomas Holtz (See above for address) ATTORNEY TO BE NOTICED

Holly MacLeish Baldwin (See above for address) TERMINATED: 10/30/2012

Kristen A Palumbo (See above for address) ATTORNEY TO BE NOTICED

Shirley Huey (See above for address) TERMINATED: 10/30/2012

Susan Lynn Burrell (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Francis Culotta

represented by Michael Bien (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ernest Galvan (See above for address) ATTORNEY TO BE NOTICED

Gay Crosthwait Grunfeld (See above for address) ATTORNEY TO BE NOTICED

Geoffrey Thomas Holtz (See above for address) ATTORNEY TO BE NOTICED

Holly MacLeish Baldwin (See above for address) TERMINATED: 10/30/2012

Kristen A Palumbo (See above for address) ATTORNEY TO BE NOTICED

Shirley Huey

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 27 of 168

(See above for address) TERMINATED: 10/30/2012

Susan Lynn Burrell (See above for address) ATTORNEY TO BE NOTICED

Plaintiff David Dixon

represented by Michael Bien (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ernest Galvan (See above for address) ATTORNEY TO BE NOTICED

Gay Crosthwait Grunfeld (See above for address) ATTORNEY TO BE NOTICED

Geoffrey Thomas Holtz (See above for address) ATTORNEY TO BE NOTICED

Holly MacLeish Baldwin (See above for address) TERMINATED: 10/30/2012

Kristen A Palumbo (See above for address) ATTORNEY TO BE NOTICED

Shirley Huey (See above for address) TERMINATED: 10/30/2012

Susan Lynn Burrell (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Karl Horne

represented by Michael Bien (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ernest Galvan (See above for address) ATTORNEY TO BE NOTICED

Gay Crosthwait Grunfeld (See above for address) ATTORNEY TO BE NOTICED

Geoffrey Thomas Holtz (See above for address) ATTORNEY TO BE NOTICED

Holly MacLeish Baldwin (See above for address) TERMINATED: 10/30/2012

Kristen A Palumbo

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 28 of 168

(See above for address) ATTORNEY TO BE NOTICED

Shirley Huey (See above for address) TERMINATED: 10/30/2012

Susan Lynn Burrell (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Scott Iroff

represented by Michael Bien (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ernest Galvan (See above for address) ATTORNEY TO BE NOTICED

Gay Crosthwait Grunfeld (See above for address) ATTORNEY TO BE NOTICED

Geoffrey Thomas Holtz (See above for address) ATTORNEY TO BE NOTICED

Holly MacLeish Baldwin (See above for address) TERMINATED: 10/30/2012

Kristen A Palumbo (See above for address) ATTORNEY TO BE NOTICED

Shirley Huey (See above for address) TERMINATED: 10/30/2012

Susan Lynn Burrell (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Walter Jones

represented by Michael Bien (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ernest Galvan (See above for address) ATTORNEY TO BE NOTICED

Gay Crosthwait Grunfeld (See above for address) ATTORNEY TO BE NOTICED

Geoffrey Thomas Holtz (See above for address) ATTORNEY TO BE NOTICED

Holly MacLeish Baldwin

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 29 of 168

(See above for address) TERMINATED: 10/30/2012

Kristen A Palumbo (See above for address) ATTORNEY TO BE NOTICED

Shirley Huey (See above for address) TERMINATED: 10/30/2012

Susan Lynn Burrell (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Mustafa Khalil

represented by Michael Bien (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ernest Galvan (See above for address) ATTORNEY TO BE NOTICED

Gay Crosthwait Grunfeld (See above for address) ATTORNEY TO BE NOTICED

Geoffrey Thomas Holtz (See above for address) ATTORNEY TO BE NOTICED

Holly MacLeish Baldwin (See above for address) TERMINATED: 10/30/2012

Kristen A Palumbo (See above for address) ATTORNEY TO BE NOTICED

Shirley Huey (See above for address) TERMINATED: 10/30/2012

Susan Lynn Burrell (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Raymond Latimore

represented by Michael Bien (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ernest Galvan (See above for address) ATTORNEY TO BE NOTICED

Gay Crosthwait Grunfeld (See above for address) ATTORNEY TO BE NOTICED

Geoffrey Thomas Holtz

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 30 of 168

(See above for address) ATTORNEY TO BE NOTICED

Holly MacLeish Baldwin (See above for address) TERMINATED: 10/30/2012

Kristen A Palumbo (See above for address) ATTORNEY TO BE NOTICED

Shirley Huey (See above for address) TERMINATED: 10/30/2012

Susan Lynn Burrell (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Andre Lyons

represented by Michael Bien (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ernest Galvan (See above for address) ATTORNEY TO BE NOTICED

Gay Crosthwait Grunfeld (See above for address) ATTORNEY TO BE NOTICED

Geoffrey Thomas Holtz (See above for address) ATTORNEY TO BE NOTICED

Holly MacLeish Baldwin (See above for address) TERMINATED: 10/30/2012

Kristen A Palumbo (See above for address) ATTORNEY TO BE NOTICED

Shirley Huey (See above for address) TERMINATED: 10/30/2012

Susan Lynn Burrell (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Claude McDaniel

represented by Michael Bien (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ernest Galvan (See above for address) ATTORNEY TO BE NOTICED

Gay Crosthwait Grunfeld

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 31 of 168

(See above for address) ATTORNEY TO BE NOTICED

Geoffrey Thomas Holtz (See above for address) ATTORNEY TO BE NOTICED

Holly MacLeish Baldwin (See above for address) TERMINATED: 10/30/2012

Kristen A Palumbo (See above for address) ATTORNEY TO BE NOTICED

Shirley Huey (See above for address) TERMINATED: 10/30/2012

Susan Lynn Burrell (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Nathan Morris

represented by Michael Bien (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ernest Galvan (See above for address) ATTORNEY TO BE NOTICED

Gay Crosthwait Grunfeld (See above for address) ATTORNEY TO BE NOTICED

Geoffrey Thomas Holtz (See above for address) ATTORNEY TO BE NOTICED

Holly MacLeish Baldwin (See above for address) TERMINATED: 10/30/2012

Kristen A Palumbo (See above for address) ATTORNEY TO BE NOTICED

Shirley Huey (See above for address) TERMINATED: 10/30/2012

Susan Lynn Burrell (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Edward Navarro

represented by Michael Bien (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ernest Galvan

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 32 of 168

(See above for address) ATTORNEY TO BE NOTICED

Gay Crosthwait Grunfeld (See above for address) ATTORNEY TO BE NOTICED

Geoffrey Thomas Holtz (See above for address) ATTORNEY TO BE NOTICED

Holly MacLeish Baldwin (See above for address) TERMINATED: 10/30/2012

Kristen A Palumbo (See above for address) ATTORNEY TO BE NOTICED

Shirley Huey (See above for address) TERMINATED: 10/30/2012

Susan Lynn Burrell (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Steven O'Donohue

represented by Michael Bien (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ernest Galvan (See above for address) ATTORNEY TO BE NOTICED

Gay Crosthwait Grunfeld (See above for address) ATTORNEY TO BE NOTICED

Geoffrey Thomas Holtz (See above for address) ATTORNEY TO BE NOTICED

Holly MacLeish Baldwin (See above for address) TERMINATED: 10/30/2012

Kristen A Palumbo (See above for address) ATTORNEY TO BE NOTICED

Shirley Huey (See above for address) TERMINATED: 10/30/2012

Susan Lynn Burrell (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Ogwuobu Ojoir

represented by Michael Bien (See above for address)

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 33 of 168

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ernest Galvan (See above for address) ATTORNEY TO BE NOTICED

Gay Crosthwait Grunfeld (See above for address) ATTORNEY TO BE NOTICED

Geoffrey Thomas Holtz (See above for address) ATTORNEY TO BE NOTICED

Holly MacLeish Baldwin (See above for address) TERMINATED: 10/30/2012

Kristen A Palumbo (See above for address) ATTORNEY TO BE NOTICED

Shirley Huey (See above for address) TERMINATED: 10/30/2012

Susan Lynn Burrell (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Willie Patton

represented by Michael Bien (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ernest Galvan (See above for address) ATTORNEY TO BE NOTICED

Gay Crosthwait Grunfeld (See above for address) ATTORNEY TO BE NOTICED

Geoffrey Thomas Holtz (See above for address) ATTORNEY TO BE NOTICED

Holly MacLeish Baldwin (See above for address) TERMINATED: 10/30/2012

Kristen A Palumbo (See above for address) ATTORNEY TO BE NOTICED

Shirley Huey (See above for address) TERMINATED: 10/30/2012

Susan Lynn Burrell (See above for address) ATTORNEY TO BE NOTICED

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 34 of 168

Plaintiff James Robinson
Plaintiff Troy Scurry

represented by Michael Bien (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ernest Galvan (See above for address) ATTORNEY TO BE NOTICED
Gay Crosthwait Grunfeld (See above for address) ATTORNEY TO BE NOTICED
Geoffrey Thomas Holtz (See above for address) ATTORNEY TO BE NOTICED
Holly MacLeish Baldwin (See above for address) TERMINATED: 10/30/2012
Kristen A Palumbo (See above for address) ATTORNEY TO BE NOTICED
Shirley Huey (See above for address) TERMINATED: 10/30/2012
Susan Lynn Burrell (See above for address) ATTORNEY TO BE NOTICED
represented by Michael Bien (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ernest Galvan (See above for address) ATTORNEY TO BE NOTICED
Gay Crosthwait Grunfeld (See above for address) ATTORNEY TO BE NOTICED
Geoffrey Thomas Holtz (See above for address) ATTORNEY TO BE NOTICED
Holly MacLeish Baldwin (See above for address) TERMINATED: 10/30/2012
Kristen A Palumbo (See above for address) ATTORNEY TO BE NOTICED
Shirley Huey (See above for address) TERMINATED: 10/30/2012

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 35 of 168

Plaintiff Mark St John
Plaintiff Gregory Strong

Susan Lynn Burrell (See above for address) ATTORNEY TO BE NOTICED
represented by Michael Bien (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ernest Galvan (See above for address) ATTORNEY TO BE NOTICED
Gay Crosthwait Grunfeld (See above for address) ATTORNEY TO BE NOTICED
Geoffrey Thomas Holtz (See above for address) ATTORNEY TO BE NOTICED
Holly MacLeish Baldwin (See above for address) TERMINATED: 10/30/2012
Kristen A Palumbo (See above for address) ATTORNEY TO BE NOTICED
Shirley Huey (See above for address) TERMINATED: 10/30/2012
Susan Lynn Burrell (See above for address) ATTORNEY TO BE NOTICED
represented by Michael Bien (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ernest Galvan (See above for address) ATTORNEY TO BE NOTICED
Gay Crosthwait Grunfeld (See above for address) ATTORNEY TO BE NOTICED
Geoffrey Thomas Holtz (See above for address) ATTORNEY TO BE NOTICED
Holly MacLeish Baldwin (See above for address) TERMINATED: 10/30/2012
Kristen A Palumbo (See above for address) ATTORNEY TO BE NOTICED

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 36 of 168

Plaintiff Alfred Taylor
Plaintiff Christopher Thomas

Shirley Huey (See above for address) TERMINATED: 10/30/2012
Susan Lynn Burrell (See above for address) ATTORNEY TO BE NOTICED
represented by Michael Bien (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ernest Galvan (See above for address) ATTORNEY TO BE NOTICED
Gay Crosthwait Grunfeld (See above for address) ATTORNEY TO BE NOTICED
Geoffrey Thomas Holtz (See above for address) ATTORNEY TO BE NOTICED
Holly MacLeish Baldwin (See above for address) TERMINATED: 10/30/2012
Kristen A Palumbo (See above for address) ATTORNEY TO BE NOTICED
Shirley Huey (See above for address) TERMINATED: 10/30/2012
Susan Lynn Burrell (See above for address) ATTORNEY TO BE NOTICED
represented by Michael Bien (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ernest Galvan (See above for address) ATTORNEY TO BE NOTICED
Gay Crosthwait Grunfeld (See above for address) ATTORNEY TO BE NOTICED
Geoffrey Thomas Holtz (See above for address) ATTORNEY TO BE NOTICED
Holly MacLeish Baldwin (See above for address) TERMINATED: 10/30/2012

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 37 of 168

Plaintiff Jimmy Watson
Plaintiff Curtis Williams also known as Charles Johnson

Kristen A Palumbo (See above for address) ATTORNEY TO BE NOTICED
Shirley Huey (See above for address) TERMINATED: 10/30/2012
Susan Lynn Burrell (See above for address) ATTORNEY TO BE NOTICED
represented by Michael Bien (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ernest Galvan (See above for address) ATTORNEY TO BE NOTICED
Gay Crosthwait Grunfeld (See above for address) ATTORNEY TO BE NOTICED
Geoffrey Thomas Holtz (See above for address) ATTORNEY TO BE NOTICED
Holly MacLeish Baldwin (See above for address) TERMINATED: 10/30/2012
Kristen A Palumbo (See above for address) ATTORNEY TO BE NOTICED
Shirley Huey (See above for address) TERMINATED: 10/30/2012
Susan Lynn Burrell (See above for address) ATTORNEY TO BE NOTICED
represented by Michael Bien (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ernest Galvan (See above for address) ATTORNEY TO BE NOTICED
Gay Crosthwait Grunfeld (See above for address) ATTORNEY TO BE NOTICED
Geoffrey Thomas Holtz (See above for address) ATTORNEY TO BE NOTICED

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 38 of 168

Holly MacLeish Baldwin (See above for address) TERMINATED: 10/30/2012
Kristen A Palumbo (See above for address) ATTORNEY TO BE NOTICED
Shirley Huey (See above for address) TERMINATED: 10/30/2012
Susan Lynn Burrell (See above for address) ATTORNEY TO BE NOTICED

Date Filed 09/20/1991 05/02/1994 05/02/1994 05/02/1994 05/02/1994 05/02/1994
05/02/1994 05/02/1994 05/02/1994 05/02/1994 05/02/1994 05/02/1994 05/05/1994

# Docket Text
LODGED Order after hearing by plaintiffs (old) (Entered: 09/21/1994)
1 COMPLAINT before Honorable Lawrence K Karlton; Case referred to Magistrate Gregory G Hollows; Summons issued; fee paid; Receipt # 158131; jury demand by plaintiff; Notice re: Consent forms sent (old) (Entered: 05/02/1994)
2 ORDER setting scheduling conference for 10:30 am on 8/1/94 before Honorable Lawrence K Karlton (cc: all counsel) (old) (Entered: 05/02/1994)
3 MOTION for preliminary injunction by plaintiff Williams motion to be heard by Honorable Lawrence K Karlton (old) (Entered: 05/02/1994)
4 MOTION for temporary restraining order by plaintiff Cervantes and for preliminary injunction by plaintiff motion to be heard by Honorable Lawrence K Karlton (old) (Entered: 05/02/1994)
5 POINTS AND AUTHORITIES by plaintiffs in support of motion for temporary restraining order and [4−1], of motion [4−2] for preliminary injunction by plaintiff Cervantes and motion preliminary injunction by plaintiff Williams [3−1] (old) (Entered: 05/02/1994)
6 DECLARATION of Steven G Williams in support of motion for temporary restraining order [4−1], motion for preliminary injunction [4−2] [3−1] (old) (Entered: 05/02/1994)
7 DECLARATION of Attonrey Stephen J Perrello Jr in support re motion for preliminary injunction by plaintiff Williams [3−1] (old) (Entered: 05/02/1994)
8 DECLARATION of attorney Paul Comiskey in support of motion for temporary restraining order by plaintiff Cervantes [4−1], and motions for preliminary injunction by plaintiffs [4−2] [3−1] (old) (Entered: 05/02/1994)
9 DECLARATION of Vincent Cervantes in support of motion for temporary restraining order [4−1] and motion for preliminary injunction [4−2] (old) (Entered: 05/02/1994)
LODGED order on motions for restraining order and injunction by plaintiffs (old) (Entered: 05/02/1994)
10 MINUTES of 5/2/94 before Honorable Lawrence K Karlton: Setting hearing on motion for temporary restraining order [4−1] and preliminary injunction [4−2] [3−1] by plaintiff's for 9:15 am on 5/19/94 (old) (Entered: 05/04/1994)
11 ORDER by Honorable Lawrence K Karlton ORDERING the court will construe pltfs' memoranda of points and authorities in support of TRO as their moving papers on the motion for a preliminary injunction; All opposition to the granting of the motion must be filed by 5/13/94; Reply brief, if any, to be filed by 5/17/94; Hearing on motion is SET for 5/19/94 at 9:15 in ctrm 1; The parties are directed to

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 39 of 168

05/05/1994 05/10/1994
05/13/1994
05/17/1994 05/17/1994
05/17/1994
05/17/1994 05/18/1994
05/18/1994
05/19/1994
05/19/1994 05/19/1994 05/23/1994 05/24/1994 05/24/1994 05/24/1994 05/31/1994 05/31/1994 05/31/1994
05/31/1994

address in their briefs the effect ot he Younger doctrine on the availability of injunctive relief in this case (cc: all counsel) (old) (Entered: 05/05/1994)
12 LODGED Document order on motions for restraining order and injunction by pltfs−NOT TO BE SIGNED (old) (Entered: 05/05/1994)
13 NOTICE pursuant to Local Rule 231(D)(3) by defendant setting hearing for 5/19/94 at 9:00 am on motion for preliminary injunction before Honorable Lawrence K Karlton (old) (Entered: 05/11/1994)
14 OPPOSITION by defendants to motion for temporary restraining order [4−1] and motions for preliminary injunction [3−1][4−2] by plaintiffs (old) (Entered: 05/13/1994)
15 REPLY MEMORANDUM on motions for preliminary injunctions by plaintiffs (old) (Entered: 05/17/1994)
16 DECLARATION of Stephen J Perrello, Jr in support of motions for temporary restraining order [4−1] and motions for preliminary injunction [4−2] [3−1] (old) (Entered: 05/17/1994)
17 MOTION in limine to preclude oral testimony and for other relief by pltfs motion to be heard on 5/19/94 at 9:15 by Honorable Lawrence K Karlton (old) (Entered: 05/17/1994)
18 DECLARATION of Michael Connolly in support of opposition to motions for preliminary injunction [14−1] (old) (Entered: 05/18/1994)
19 OPPOSITION by defendants State of CA, Joe Sandoval, Craig L Brown, James Gomez to motion in limine to preclude oral testimony and for other relief by pltfs [17−1] (old) (Entered: 05/19/1994)
20 RESPONSE TO PLAINTIFFS REPLY by defendants State of CA, Joe Sandoval, Craig L Brown, James Gomez to response to motion in limine to preclude oral testimony and for relief [17−1] (old) (Entered: 05/19/1994)
21 MINUTES before Honorable Lawrence K Karlton: Hearing on pltf's motions for preliminary injunctions (4−1][4−2][3−1] Motions DENIED; Deft to prepare order; Documents and exhibits filed in court (old) (Entered: 05/20/1994)
22 SUPPLEMENTAL DECLARATION of Issac Cubillos for preliminary injunctions (old) (Entered: 05/20/1994)
34 SUPPLEMENTAL DECLARATION of Stephen J Perrello, Jr for preliminary injunctions (old) Modified on 06/14/1994 (Entered: 06/09/1994)
23 TRANSCRIPT of Judges Decision on 5/19/94 (old) (Entered: 05/24/1994)
24 NOTICE of lodging of proposed order by defendants State of California, Joe Sandoval, Craig L Brown, James Gomez (old) (Entered: 05/25/1994)
LODGED order after hearing on plaintiffs motions for preliminary injunctions by defendants (old) (Entered: 05/25/1994)
25 ANSWER and demand for jury trial by defendants (old) (Entered: 05/25/1994)
26 NOTICE by paintiffs Vincent Cervantes, Steven G Williams of partial transcript of 5/19/94 (old) (Entered: 06/02/1994)
27 CONDITIONAL MOTION by plaintiffs for hearing and argument on order denying motions for preliminary injunctions (old) (Entered: 06/02/1994)
28 MEMORANDUM by plaintiffs Vincent Cervantes, Steven G Williams in support of motion by plaintiffs for hearing and argument on order denying motions for preliminary injunctions [27−1] (old) (Entered: 06/02/1994)
29 DECLARATION of Attorney Stephen J Perrello Jr in opposition to lodged proposed Order (on settlement of order denying motions) submitted by defendants (old) (Entered: 06/02/1994)

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 40 of 168

05/31/1994 06/02/1994 06/06/1994 06/08/1994
06/08/1994 06/14/1994 06/15/1994 07/05/1994 07/05/1994 07/05/1994 07/05/1994 07/05/1994 07/05/1994 07/05/1994 07/05/1994 07/05/1994 07/06/1994 07/07/1994

LODGED reporter's transcript of 5/19/94 (old) (Entered: 06/14/1994)
30 OPPOSITION by defendants to motion by plaintiffs for hearing and argument on proposed order denying motions for preliminary injunctions [27−1] (old) (Entered: 06/03/1994)
31 FURTHER OPPOSITION by defendants to motion by plaintiffs for hearing and argument on order denying motions for preliminary injunctions [27−1] (old) (Entered: 06/08/1994)
32 ORDER by Honorable Lawrence K Karlton DENYING motions for preliminary injunction by plaintiff [4−2] [3−1] and ORDERING the court emphasizes that its order is limited to the motion before it and is issued without prejudice to any future motions by either party; The plaintiffs' Conditional Motion for hearing and Argument is therefore MOOT (cc: all counsel) (old) (Entered: 06/08/1994)
33 LODGED Document by defendants of order after hearing on plaintiffs' motions for preliminary injunctions−NOT TO BE SIGNED by LKK (old) (Entered: 06/08/1994)
35 MOTION by defendants to stay the damages portion and the equitable portion of the case motion to be heard by Honorable Lawrence K Karlton on 7/18/94 at 10:00am (old) (Entered: 06/15/1994)
36 NOTICE OF MOTION AND MOTION to dismiss by defendants motion to be heard on 7/18/94 at 10:00 by Honorable Lawrence K Karlton (old) (Entered: 06/16/1994)
37 MOTION to continue by plaintiffs Vincent Cervantes and Steven G Williams ; motion to be heard on 07/18/94 at 10:00am by Honorable Lawrence K Karlton (old) (Entered: 07/05/1994)
38 RESPONSE by plaintiffs Vincent Cervantes and Steven G Williams to motion to dismiss by defendants [36−1] and motion by defendants to stay the damages portion and the equitable portion of the case [35−1] (old) (Entered: 07/05/1994)
39 MOTION to amend complaint by plaintiffs Vincent Cervantes and Steven G Williams ; motion to be heard on 09/06/94 at 10:00am by Honorable Lawrence K Karlton (old) (Entered: 07/05/1994)
40 DECLARATION of Stephen J Perrello Jr In Support of motion to continue by plaintiffs Vincent Cervantes and Steven G Williams [37−1] (old) (Entered: 07/05/1994)
41 MEMORANDUM of Points and Authorities in support of motion to continue by plaintiffs Vincent Cervantes and Steven G Williams [37−1] (old) (Entered: 07/05/1994)
42 MEMORANDUM of Points and Authorities in support of motion to amend complaint by plaintiffs Vincent Cervantes and Steven G Williams [39−1] (old) (Entered: 07/05/1994)
LODGED First Amended Civil Complaint Class Action for Declaratory and Injunctive Relief (old) (Entered: 07/05/1994)
43 MOTION to certify class action Rule 23 by plaintiffs Vincent Cervantes and Steven G Williams ; motion to be heard on 09/06/94 at 10:00am by Honorable Lawrence K Karlton (old) (Entered: 07/05/1994)
44 MEMORANDUM of Points and Authorities in support of motion to certify class action Rule 23 by plaintiffs Vincent Cervantes and Steven G Williams [43−1] (old) (Entered: 07/05/1994)
46 REPLY by defendants to response to motion to dismiss by defendants [36−1] and motion to stay the damages portion and the equitable portion of the case [35−1] (old) (Entered: 07/08/1994)
45 OPPOSITION to motion to continue by plaintiffs Vincent Cervantes and Steven G Williams [37−1] by defendants (old) (Entered: 07/07/1994)

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 41 of 168

07/08/1994
07/08/1994 07/08/1994 07/08/1994 07/08/1994 07/25/1994 07/25/1994 07/25/1994 07/25/1994 07/25/1994 07/25/1994 07/25/1994 07/25/1994 08/01/1994 08/03/1994
08/09/1994
08/19/1994
08/22/1994

47 ORDER by Honorable Lawrence K Karlton ORDERING Hearing on motion to dismiss [36−1] and motion by defendants to stay the damages portion and the equitable portion of the case [35−1] by defendants is CONTINUED to 10:00 am on 9/6/94; Plaintiffs shall notice their motion to certify class action Rule 23 [43−1] and motion to amend complaint by plaintiffs Vincent Cervantes and Steven G Williams will be noticed for hearing on 9/6/94; Defendants may tender their objections to the amended complaint in their oppsition to the motion to amend or by cross−motion timely noticed for hearing on 9/6/94; The parties are directed to address the applicability of Younger abstention to the amended complaint in their briefs (cc: all counsel) (old) (Entered: 07/08/1994)
48 NOTICE by plaintiffs of motion for continuance LR 230 (e)(g) [37−1] (old) (Entered: 07/11/1994)
49 NOTICE by plaintiffs for leave to file amended complaint [39−1] (old) (Entered: 07/11/1994)
50 NOTICE by plaintiffs of motion for certification of class action (Rule 23) [43−1] (old) (Entered: 07/11/1994)
51 PROOF OF SERVICE by plaintiff of order setting status conference [2−1] (old) (Entered: 07/11/1994)
52 STATUS REPORT by plaintiffs Vincent Cervantes and Steven G Williams (old) (Entered: 07/26/1994)
53 STATUS REPORT by defendants State of CA, Pete Wilson, Joe Sandoval, Craig L Brown, James Gomez and Judith A McGillivray (old) (Entered: 07/26/1994)
54 PROOF OF SERVICE of [1−1] complaint and summons to defendant Pete Wilson (old) (Entered: 07/26/1994)
55 PROOF OF SERVICE of complaint and summons as to Craig L Brown (old) (Entered: 07/26/1994)
56 PROOF OF SERVICE of complaint and summons as to Joe Sandoval (old) (Entered: 07/26/1994)
57 PROOF OF SERVICE of complaint and summons as to the State of California by serving the State Attorney Generals Office Karen Files (old) (Entered: 07/26/1994)
58 PROOF OF SERVICE of complaint and summons as to James H Gomes by service on Judith Debelle (old) (Entered: 07/26/1994)
59 PROOF OF SERVICE of complaint and summons as to James A Browning Jr (old) (Entered: 07/26/1994)
61 MINUTES of 8/1/94 before Honorable Lawrence K Karlton: Status conference HELD; Pretrial conference SET 1/16/96 at 3:30 pm; Jury trial set 4/23/96 at 10:00; Trial estimated to be 15 days; Court order to follow (old) (Entered: 08/09/1994)
60 NOTICE OF MOTION AND MOTION to dismiss by defendants State of California, Pete Wilson, Joe Sandoval, Craig L Brown, James Gomez and Judith A McGillivray ; motion to be heard on 09/06/94 at 10:00am by Honorable Lawrence K Karlton (old) (Entered: 08/04/1994)
62 STATUS (PRETRIAL SCHEDULING) ORDER by Honorable Lawrence K Karlton ORDERING: motion filing ddl set for 10/1/95; discovery ddl set for 8/1/95; pretrial conference set for 2:30pm on 1/16/96; jury trial set for 10:00am on 4/23/96 (cc: all counsel) (kb) (Entered: 08/09/1994)
64 OPPOSITION by defendants to motion to certify class action Rule 23 by plaintiffs Vincent Cervantes and Steven G Williams [43−1] and NON−OPPOSITION to motion to amend complaint by plaintiffs Vincent Cervantes and Steven G Williams [39−1] (old) (Entered: 08/24/1994)
63 PLAINTIFFS Vincent Cervantes and Steven Williams Opposition to motion to dismiss by defendants State of California, Pete Wilson, Joe Sandoval, Craig L Brown, James Gomez and Judith A McGillivray [60−1] (old) (Entered: 08/22/1994)

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 42 of 168

08/29/1994 08/29/1994 09/02/1994 09/06/1994
09/06/1994 09/06/1994 09/15/1994 09/20/1994 09/22/1994 11/14/1994
11/28/1994 12/01/1994
12/09/1994 03/16/1995 03/21/1995

65 REPLY to Plaintiffs' Opposition by defendants [60−1], motion to dismiss by defendants [36−1], motion by defendants to stay the damages portion the equitable portion of the case [35−1] (old) (Entered: 08/30/1994)
66 REPLY to Opposition to motion to certify class action Rule 23 [43−1] by plaintiffs Vincent Cervantes and Steven G Williams (old) (Entered: 08/31/1994)
67 SUPPLEMENTAL AUTHORITIES IN OPPOSITION by plaintiffs to motion to dismiss by defendants State of California, Pete Wilson, Joe Sandoval, Craig L Brown, James Gomez and Judith A McGillivray [60−1] (old) (Entered: 09/06/1994)
68 MINUTES of 09/06/94 before Honorable Lawrence K Karlton: Motion to dismiss by defendants State of California, Pete Wilson, Joe Sandoval, Craig L Brown, James Gomez and Judith A McGillivray [60−1] is DENIED; Motion to certify class action Rule 23 by plaintiffs Cervantes and Steven G Williams [43−1] is SUBMITTED after further briefing; Letter briefs to be filed by 9/19/94 by 4:30 for plaintiffs and oppositions to brief due 9/26/94 by 4:30; Motion to amend complaint by plaintiffs Vincent Cervantes and Steven G Williams [39−1] is GRANTED; Court ORDERED amended complaint filed as of 9/6/94; Motion to dismiss by defendants [36−1] or to stay the damages portion and the equitable portion of the case [35−1] is DENIED; Order to be prepared by plaintiff and submitted within 22 days; C/R Richard Fong (old) (Entered: 09/07/1994)
69 FIREST AMENDED CIVIL COMPLAINT CLASS ACTION [1−1] by plaintiffs (old) (Entered: 09/07/1994)
70 SECOND SUPPLEMENTAL AUTHORITIES to [67−1] by plaintiffs in opposition to motion to dismiss (old) (Entered: 09/07/1994)
71 TRANSCRIPT of proceeding hearing on 9/6/94 by C/R Richard Fong (ndd) (Entered: 09/15/1994)
72 BRIEF by plaintiffs on standing and mootness [68−1] (old) (Entered: 09/21/1994)
73 LETTER to court from counsel for defendants regarding [72−1] the letter brief filed in opposition to their earlier arguments on the issues of standing and mootness (old) (Entered: 09/23/1994)
74 ORDER by Honorable Lawrence K Karlton ORDERING that plaintiffs' motion for leave to file amended complaint [39−1] is GRANTED; plaintiffs' motion for class certification [43−1] is TAKEN UNDER SUBMISSION pending further briefing on the jurisdictional issues; defendants' motion to dismiss the amended complaint [60−1] is DENIED (cc: all counsel) (ndd) (Entered: 11/14/1994)
75 ANSWER by defendants State of CA, Pete Wilson, James Gomez, Joe Sandoval, Craig L Brown, Judith A McGillivray to first amended complaint (kb) (Entered: 11/30/1994)
76 ORDER by Honorable Lawrence K Karlton defendants' objections to class certification on standing and mootness grounds are rejected; pursuant to this court's order file 11/14/94, a class is hereby certified under Rule 23(b)(2), consisting of: (1) California parolees at large; (2) California parolees in custody, as alleged parole violators, and who are awaiting revocation of their state parole; and (3) California parolees who are in custody having been found in violation of parole and who have been thereupon sentenced to prison custody [43−1] (cc: all counsel) (old) (Entered: 12/01/1994)
77 DEFENDANTS' NOTICE of automatic substitution of party Michael Connolly substituted for dft Judith McGillivray pursuant to rule 25 of the Federal Rules of civil procedure (old) Modified on 11/03/1995 (Entered: 12/12/1994)
LODGED Stipulation re no purging of documents pending completion of discovery of by plaintiffs (kb) (Entered: 03/20/1995)
LODGED STIPULATION EXTENSION of time to produce documents and response to request for production of documents by defendants (old) (Entered: 03/23/1995)

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 43 of 168

03/27/1995 03/29/1995 04/10/1995 04/12/1995 08/18/1995 09/22/1995 09/22/1995 09/26/1995 10/16/1995 10/18/1995 11/01/1995
01/03/1996 03/25/1996 03/25/1996 03/25/1996 03/25/1996 03/25/1996 03/25/1996 03/25/1996 03/25/1996

80 STIPULATION to extend time to and including 5/3/95 w/i which for pltfs to respond to interrogatories propounded by dfts (old) (Entered: 03/29/1995)
79 STIPULATION AND ORDER by Magistrate Judge Gregory G. Hollows granting lodged extension of time to 4/10/95 for defendants to serve responses to second request for production [0−0] (cc: all counsel) (old) (Entered: 03/29/1995)
82 RESPONSE to pltf's first request for production of documents by defts Judith A McGillivray, James Gomez, Craig L Brown, Joe Sandoval, Pete Wilson, State of CA (old) (Entered: 04/12/1995)
81 STIPULATION AND ORDER by Magistrate Judge Gregory G Hollows ORDERING that there will be no purging of documents re this action pending the completion of discovery (cc: all counsel) (old) (Entered: 04/12/1995)
LODGED Stipulation of parties for extension of time to complete discovery; AND motions to continuance of trail date by plaintiff Steven G Williams (old) (Entered: 08/23/1995)
LODGED Order Scheduling Further Status Conference submitted by V Sult (old) (Entered: 09/25/1995)
83 STIPULATION of parties: scheduling of further status condrence; extension of time to complete discovery and continuance of trial date (old) (Entered: 09/26/1995)
84 ORDER by Honorable Lawrence K. Karlton pretrial conference set for 11:30 10/16/95 (cc: all counsel) (old) (Entered: 09/26/1995)
86 MINUTES of Status Conference before Honorable Lawrence K. Karlton , pretrial conference set for 3:00 12/9/96 trial set for 10:00 3/4/97 Court order to follow (old) (Entered: 10/20/1995)
85 ORDER by Honorable Lawrence K. Karlton pretrial conference set for 3:00 12/9/96 jury trial set for 10:00 3/4/97 motion filing ddl set for 4/30/96 discovery ddl set for 5/30/96 (cc: all counsel) (old) (Entered: 10/18/1995)
87 NOTICE by defendants State of California, Pete Wilson, Joe Sandoval, Craig L Brown, James Gomez and Michael Connolly regarding substitution of Tom Maddock in place of dft Brown pursuant to Federal Rules of Civil Procedure, Rule 25(d) (kb) (Entered: 11/03/1995)
88 STIPULATION to extend time within which defendants may respond to plaintiff's thir request for documents (old) (Entered: 01/04/1996)
89 MOTION by attorney Stephen J Perrello, Jr to seal his motion to withdraw as counsel for Vincent Cervantes motion not noticed before Honorable Lawrence K. Karlton (old) (Entered: 03/26/1996)
90 MOTION by attorney Stephen J Perrello, Jr for leave to withdraw as attorneys of record of Vincent Cervantes motion not noticed before Honorable Lawrence K. Karlton (old) (Entered: 03/26/1996)
91 PROPOSED NOTICE of change of attorneys by attorney Stephen J Perrello representing plaintiff Vincent Cervantes (old) (Entered: 03/26/1996)
LODGED possibly to be sealed document by attorney for plaintiff Vincent Cervantes (old) (Entered: 03/26/1996)
LODGED second amended complaint by plaintiff Steven G Williams, plaintiff Vincent Cervantes (old) (Entered: 03/26/1996)
LODGED order sealing declaration (old) (Entered: 03/26/1996)
LODGED order granting motion to withdraw as attorneys by attorney for plaintiff Vincent Cervantes (old) (Entered: 03/26/1996)
LODGED order directing filing of pltfs' second amended complaint by plaintiff Vincent Cervantes (old) (Entered: 03/26/1996)

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 44 of 168

03/25/1996 03/25/1996 04/10/1996
04/10/1996
04/10/1996 04/10/1996 04/11/1996 04/19/1996 04/19/1996 04/26/1996 05/06/1996 05/06/1996 05/06/1996 05/13/1996 05/13/1996
05/15/1996
05/17/1996
06/03/1996 06/03/1996 06/03/1996 06/03/1996 06/03/1996 06/03/1996

LODGED dfts' consent to pltfs filing of second amended complaint (old) (Entered: 03/26/1996)
93 DECLARATION of Stephen J Perello, Jr in support of his motion to withdraw as attorney of record (filed under seal and placed in vault) (old) (Entered: 04/10/1996)
92 ORDER by Honorable Lawrence K. Karlton GRANTING lodged motion to withdraw as attorney for plaintiff Cervantes by attorney Stephen J Perrello, Jr [0−0] (cc: all counsel) (old) (Entered: 04/10/1996)
94 ORDER by Honorable Lawrence K. Karlton GRANTING lodged sealing declaration of attorney in support of his motion to withdraw as attorney [0−0] (cc: all counsel) (old) (Entered: 04/10/1996)
95 ORDER by Honorable Lawrence K. Karlton GRANTING lodged order to file second amended complaint [0−0] (cc: all counsel) (old) (Entered: 04/10/1996)
96 AMENDED COMPLAINT [69−1] (old) (Entered: 04/10/1996)
LODGED order scheduling further status conference (kdc) (Entered: 04/12/1996)
97 ORDER by Honorable Lawrence K. Karlton scheduling conference reset for 1:30 5/13/96 (cc: all counsel) (old) (Entered: 04/19/1996)
LODGED Document not to be used VACATING [0−0] lodged proposed order of scheduling further status conference (old) (Entered: 04/19/1996)
98 RETURN OF SERVICE executed on 4/24/96 on Eddie Myers, Ca Dept of Corrections (kdc) (Entered: 04/29/1996)
99 STATUS REPORT by defendants (old) (Entered: 05/07/1996)
100 DECLARATION of Stephen J Perrello, Jr and request for further scheduling and extension of time to complete discovery (old) (Entered: 05/07/1996)
101 STATUS REPORT by plaintiff Vincent Cervantes (old) (Entered: 05/07/1996)
102 ANSWER by defendants to second amended complaint (kdc) (Entered: 05/14/1996)
103 MINUTES: before Honorable Lawrence K. Karlton status conference held on 5/13/96; pretrial conference set for 2:00 7/28/97; court trial set for 10:00 11/12/97; jury trial satisfied on 5/13/96; motion filing ddl satisfied on 5/13/96; discovery ddl satisfied on 5/13/96 C/R (kdc) (Entered: 05/14/1996)
104 PROOF OF SERVICE by defendant of order granting motion to withdraw, order sealing declaration of attorney, order directing filing of second amended complaint (old) (Entered: 05/15/1996)
105 ORDER by Honorable Lawrence K. Karlton trial set for 10:00 11/12/97; discovery deadline set for 12/31/96; pretrial conference set for 2:00 7/28/97 (cc: counsel) (old) (Entered: 05/17/1996)
106 MOTION for protective order re pretrial discovery by plaintiffs (old) (Entered: 06/06/1996)
107 POINTS AND AUTHORITIES by plaintiff in support of motion for protective order [106−1] (old) (Entered: 06/06/1996)
108 DECLARATION of Stephen J Perrello, Jr in in SUPPORT of motion for protective order [106−1] (old) (Entered: 06/06/1996)
LODGED Protective order; exception to disclosure by plaintiff (old) (Entered: 06/06/1996)
109 MOTION for order shortening time and for telephone hearing by plaintiffs (old) (Entered: 06/06/1996)
110 DECLARATION of Stephen J Perrello Jr in in SUPPORT of moiton for order shortenting time and for telephone hearing [109−1] (old) (Entered: 06/06/1996)

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 45 of 168

06/03/1996 06/03/1996
06/07/1996
06/10/1996
06/17/1996 06/17/1996 06/17/1996 06/17/1996 06/17/1996 06/17/1996 07/12/1996
07/15/1996 07/17/1996 07/18/1996
08/26/1996 08/28/1996 09/18/1996 09/18/1996
09/23/1996 09/27/1996
09/27/1996

LODGED Order setting hearing on motion for protective order by plaintiff (old) (Entered: 06/06/1996)
111 PROOF OF SERVICE by plaintiffs of motion for protective order and shortening time and supporting documents [106−1], [107−1], [108−1], [0−0], [109−1], [110−1], [0−0] (old) (Entered: 06/06/1996)
112 ORDER by Magistrate Judge Gregory G. Hollows SETTING HEARING on motion for protective order re pretrial by plaintiffs [106−1], for 10:00 on 7/3/96 (cc: all counsel) (old) (Entered: 06/07/1996)
113 NOTICE OF MOTION AND MOTION by plaintiffs Steven G Williams, Vincent Cervantes to compel pretrial discovery ; hearing set for 10:00 7/18/96 before Magistrate Judge Gregory G Hollows (kdc) (Entered: 06/11/1996)
LODGED order setting hearing on motion for protective orders (old) (Entered: 06/18/1996)
114 MOTION by plaintiff Steven G Williams to shorten time and for telephonic hearing (old) (Entered: 06/18/1996)
115 MEMORANDUM by plaintiffs Steven G Williams and plaintiff Vincent Cervantes in support of motion for protective order [106−1] (old) (Entered: 06/18/1996)
116 DECLARATION of Stephen J Perrello in support of plaintiffs' motion for protective order [106−1] (old) (Entered: 06/18/1996)
117 STIPULATION by the State of California regarding discovery disagreement (old) (Entered: 06/18/1996)
118 MOTION by plaintiff Vincent Cervantes for protective order (pre−trial discovery) (old) (Entered: 06/18/1996)
119 ORDER by Magistrate Judge Gregory G. Hollows GRANTING motion Vincent Cervantes for protective order as follows; Within 60 days of the 7/2/96 hearing plaintif shall disclose to defendants the names and addresses of all persons who have information relating to plaintiff's claim as set forth in the complaint (See order for more specific details) [118−1] (cc: all counsel) (old) (Entered: 07/12/1996)
120 AFFIDAVIT of Stephen Perrello in support of plaintiffs' motion to compel pre−trial discovery [113−1] (old) (Entered: 07/16/1996)
121 OPPOSITION by defendants to motion to compel pretrial discovery [113−1] (kdc) (Entered: 07/18/1996)
122 MINUTES before Magistrate Judge Gregory G. Hollows GRANTING motion to compel pretrial discovery [113−1]; written order to be prepared by the Court (kdc) (Entered: 07/22/1996)
123 STIPULATION regarding deposition of Alton Oshiro (kdc) (Entered: 08/28/1996)
124 DESIGNATION of expert witnesses by defendants (old) (Entered: 08/30/1996)
LODGED Order upon stipulation of filing of pltf's expert witness list by defendants (kdc) (Entered: 09/20/1996)
LODGED stipulation of parties: filing of plaintiffs' expert witness list by dfts Judith A McGillivray, James Gomez, Craig L Brown, Joe Sandoval, Pete Wilson, State of California, Michael Connolly and Tom Maddock (old) (Entered: 09/25/1996)
125 ORDER by Honorable Lawrence K. Karlton: stipulation of parties; filing of pltf's attached expert witness list (cc: all counsel) (old) (Entered: 09/23/1996)
127 NOTICE OF MOTION by pltfs Steven G Williams and Vincent Cervantes for clarification/modification or supplementation of prior order of 7/2/96; for further protective order (old) (Entered: 09/30/1996)
128 MOTION for clarification/modification or supplementation of prior order of 7/2/96 by pltf Steven G Williams and Vincent Cervantes and for protective order by pltfs

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 46 of 168

09/30/1996
09/30/1996 09/30/1996 09/30/1996 10/03/1996
10/09/1996 10/15/1996 10/15/1996 10/15/1996 10/15/1996 10/15/1996 10/15/1996
10/15/1996 10/16/1996 10/17/1996 10/17/1996 10/18/1996

Steven G Williams and pltfs Vincent Cervantes Motion Hearing Set for 10/24/96 at 10:00 (old) (Entered: 09/30/1996)
126 ORDER by Magistrate Judge Gregory G. Hollows: Plaintiff's 6/10/96 motion to compel is granted; defendants are ordered to produce without regard to asserted privilege those documents specified at pages one and two of plaintiff's motion to compel filed on 6/10/96 no later than 10/7/96 (cc: all counsel) (old) (Entered: 09/30/1996)
129 NOTICE OF MOTION by pltf Steven G Williams and Vincent Cervantes to compel discovery of documents and other items (old) (Entered: 10/01/1996)
130 MOTION to compel discovery of documents and other items Vincent Cervantes Motion Hearing Set for 10/24/96 at 10:00 before the Honorable Gregory G Hollows (old) (Entered: 10/01/1996)
131 PROOF OF SERVICE by pltfs Steven G Williams and Vincent Cervantes of notice of motion and motion to compel discovery of documents and supporting documentation [130−1] (old) (Entered: 10/01/1996)
132 ORDER by Magistrate Judge Gregory G. Hollows: a discovery motion has been filed by the pltf on 9/30/96 which requires compliance with the joint stipulation requirement of Local Rule 251; in order for the court to be able to devote sufficient time to consider the motion before hearing, and notwithstanding the general three day time limitation specified in Local Rule 251, the parties to the motion are directed to have their Local Rule 251 joint statement filed no later than 5 court days before the scheduled hearing (cc: all counsel) (kdc) (Entered: 10/03/1996)
133 TRANSCRIPT of 7/18/96 hearing on pltf's motion to compel discovery (old) (Entered: 10/11/1996)
LODGED order shortening time for hearing on motion for sanctions (old) (Entered: 10/16/1996)
134 MOTION for sanctions by pltfs Steven G Williams and Vincent Cervantes Motion Hearing not noticed (old) (Entered: 10/16/1996)
135 NOTICE of motion for sanctions by pltfs Steven G Williams and Vincent Cervantes [134−1] (old) (Entered: 10/16/1996)
136 MOTION for shortening time for scheduling hearing on motion for sanctions by pltfs Steven G Williams and Vincent Cervantes Motion Hearing not noticed (old) (Entered: 10/16/1996)
138 DECLARATION of Stephen J Perrello in support of pltfs' motion for sanctions: Certification without justification [134−1] (old) (Entered: 10/16/1996)
139 PROOF OF SERVICE by pltfs Steven G Williams and Vincent Cervantes of motion for order shortening time for scheduling hearing on motion for sanctions [136−1] and motion for sanctions [134−1]; and supporting documentation (old) (Entered: 10/16/1996)
140 DECLARATION of Stephen J Perrelo Jr in support of motion for order shortening time for scheduling hearing on motion for sanctions [136−1] (old) (Entered: 10/16/1996)
137 MEMORANDUM OF POINTS AND AUTHORITIES by pltfs Steven G Williams and Vincent Cervantes in support of pltfs' motion for sanctions for certificationl [136−1] (old) (Entered: 10/16/1996)
141 AFFIDAVIT of Stephen J Perrello Jr in support of pltfs' motion to compel pre−trial discovery and exhibits in support [130−1] (old) (Entered: 10/18/1996)
142 AFFIDAVIT of Stephen Perrello in support of pltfs' motion for clarification/modification of prior order of 7/2/96; for further protective order [128−1] (old) (Entered: 10/18/1996)
143 OPPOSITION to motion to clarify or modify order filed on 7/2/96 and for further protective order by dfts James Gomez, Joe Sandoval, Pete Wilson, State of

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 47 of 168

10/21/1996
10/21/1996 10/22/1996
10/24/1996
10/28/1996 11/04/1996 11/08/1996
11/13/1996 11/18/1996 11/20/1996 11/20/1996 11/27/1996 12/02/1996

California, Michael Connolly and Tom Maddock [128−2] (old) (Entered: 10/21/1996)
144 OPPOSITION by dfts Baker, Bentley, Giaquinto, Gillis, Guarderrama, Koenig, Van Court, Gomez, Sandoval, Wilson, State of California, Connolly, Maddock to motion for sanctions by pltfs Steven G Williams and Vincent Cervantes [134−1], to motion to compel discovery of documents and other items Vincent Cervantes [130−1] (old) (Entered: 10/22/1996)
LODGED Affidavit and Order granting leave to file opposition to motion to compel and for sanctions by defendants (old) (Entered: 10/22/1996)
145 ORDER by Magistrate Judge Gregory G. Hollows GRANTING motion for shortening time for scheduling hearing on motion for sanctions by pltfs Steven G Williams and Vincent Cervantes [136−1]; SETTING HEARING on motion for sanctions by pltfs Steven G Williams and Vincent Cervantes [134−1] 10am on 10/24/96; dfts to file their response to the motion for sanctions BY 10/21/96; pltfs to file a reply to the opposition BY 10/23/96; clerk to notify counsel of tis order by mail and fax (cc: all counsel) (old) (Entered: 10/22/1996)
146 MINUTES of before Magistrate Judge Gregory G. Hollows GRANTING motion for clarification/modification or supplementation of prior order of 7/2/96 by pltf Steven G Williams and Vincent Cervantes [128−1]; RESETTING HEARING on motion to compel discovery of documents and other items Vincent Cervantes [130−1] 11/14/96; GRANTING motion for sanctions by pltfs Steven G Williams and Vincent Cervantes [134−1]; court order 251 stip to be filed by 11/17/96 (kdc) (Entered: 10/28/1996)
LODGED Request for extension of time be defendants to respond to discovery (old) (Entered: 10/28/1996)
147 OPPOSITION in part to dfts' motion for extension of time to respond to discovery request and to produce documents and declaration of Stephen J Perrello Jr by pltfs Steven G Williams and Vincent Cervantes (old) (Entered: 11/05/1996)
148 ORDER by Magistrate Judge Gregory G Hollows VACATING HEARING re motion to compel discovery of documents and items Vincent Cervantes [130−1]; GRANTING in part motion for clarification/modification or supplementation of prior order of 7/2/96 by pltf Steven G Williams and Vincent Cervantes [128−1]; GRANTING motion sanctions by pltfs Steven G Williams and Vincent Cervantes [134−1]; dfts are sanctioned in their official capacity; within 10 days of the date of this order, pltfs' counsel shall file a supplemental declaration justifying his expenses for bringing the earlier motion to compel (cc: all counsel) (kdc) (Entered: 11/08/1996)
LODGED order regarding handling of discovery matters (old) (Entered: 11/14/1996)
LODGED stipulation of proposed witnesses by defendants (kdc) (Entered: 11/19/1996)
149 DECLARATIONS of Attorney Stephen J Perrello Jr and Ellen Geis in support of application for reimbursement of expenses incurred upon motion to compel discovery [130−1] (old) (Entered: 11/21/1996)
150 DECLARATION of Ellen Geis in support of application for reimbursement of expenses incurred upon motion to compel discovery (old) (Entered: 11/21/1996)
151 ORDER by Magistrate Judge Gregory G Hollows ORDERING: upon the foregoing stipulation of counsel for the parties dated 11/12/96 and good cause appearing the stipulation shall become the order of the court (cc: all counsel) (old) (Entered: 11/27/1996)
152 STIPULATION AND ORDER by Magistrate Judge Gregory G Hollows ORDERING: pltfs may substitute Ms Edmonton for Ms Berry on their list of proposed witnesses (cc: all counsel) (old) (Entered: 12/02/1996)

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 48 of 168

12/02/1996
12/04/1996 12/16/1996 12/17/1996 12/18/1996 12/19/1996 12/19/1996
12/19/1996 12/19/1996 12/19/1996 12/19/1996 12/19/1996
12/19/1996 12/19/1996
12/19/1996
12/19/1996
12/19/1996

153 MEMORANDUM by defendants James Gomez, Joe Sandoval, Pete Wilson, California State, Michael Connolly, Tom Maddock, Gregory W Harding, Eddie Myers, Marisela Montes, James W Nielsen, Steven G Baker, Carol J Bentley, Thomas J Giaquinto, John W Gillis, Manuel C Guaderrama, Ron E Koenig, Arthur F Van Court, and Ted Rich in opposition to plaintiffs' application for reimbursement of expenses (old) (Entered: 12/05/1996)
LODGED declaration of Michael G Lee and order for extension of time to respond to discovery request and to produce documents by dfts (old) (Entered: 12/05/1996)
LODGED declaration and motion for extension of time by defendants to comply with pltf's fifth request for production of documents and interrogatories to dft Wilson (old) (Entered: 12/19/1996)
156 OPPOSITION by plaintiff Vincent Cervantes to defendants' second motion for extension of time to respond to discovery request and to produce documents and declaration of Stephen J Perrello, Jr (old) (Entered: 12/20/1996)
154 ORDER by Magistrate Judge Gregory G Hollows DENYING 10/28/96 and 12/4/96 dfts' requests for extensions of time (cc: all counsel) (kdc) Modified on 12/19/1996 (Entered: 12/18/1996)
155 ORDER by Honorable Lawrence K. Karlton scheduling conference SET for 11:00 a.m. 12/20/96 (cc: all counsel) (old) (Entered: 12/19/1996)
157 MOTION for protective order by pltfs Steven G Williams and Vincent Cervantes , or alternatively for reference to the magistrate−judge for consideration of motion for protective order by pltfs Steven G Williams and Vincent Cervantes (dd) (Entered: 12/23/1996)
158 MOTION for order shortening time by plaintiffs Steven G Williams and Vincent Cervantes (dd) (Entered: 12/23/1996)
159 MOTION for extension of time to compel discovery by plaintiffs Steven G Williams and Vincent Cervantes and for other relief (dd) (Entered: 12/23/1996)
160 MOTION to quash by pltfs Steven G Williams and Vincent Cervantes or to stay notices by pltfs Steven G Williams and Vincent Cervantes or subpoenas pending hearing on the motions for protective order (dd) (Entered: 12/23/1996)
161 MOTION to extend magistrate−judge's jurisdiction to close of discovery by pltfs Steven G Williams and Vincent Cervantes (dd) (Entered: 12/23/1996)
162 MOTION for telephonic conference on the motion for order shortening time and to quash or stay notices of deposition and subpoenas by pltfs Steven G Williams and Vincent Cervantes pending hearing on motions for protective order and other motions (dd) (Entered: 12/23/1996)
163 MOTION for relief from local rules 140 (a)(2) and 230 (b) by pltfs Steven G Williams and Vincent Cervantes (dd) (Entered: 12/23/1996)
164 MEMORANDUM of points and authorities by pltfs Steven G Williams and Vincent Cervantes in support of motions for protective order [157−1], order shortening time, telephone conference, to quash or stay notices of deposition, to extend time to compel discovery, for reference to the magistrate judge, and for other relief (dd) (Entered: 12/23/1996)
165 AFFIDAVIT of Stephen J Perrello, Jr. in support of motions for protective order [157−1], order shortening time, telephone conference to quash or stay notices of deposition, to extend time for discovery, for reference to the magistrate−judge and for other relief (dd) (Entered: 12/23/1996)
LODGED order setting status conference by pltfs Steven G Williams and Vincent Cervantes permitting telephonic conference shortening time, setting hearing, and staying certain notices of deposition pending further hearing (dd) (Entered: 12/23/1996)
166 PROOF OF SERVICE by pltfs Steven G Williams and Vincent Cervantes of motion for protective order [157−1] and other related motions (dd) (Entered:

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 49 of 168

12/21/1996 12/23/1996
12/23/1996 12/23/1996 12/23/1996 12/23/1996 12/26/1996
12/31/1996 01/02/1997 01/06/1997 01/06/1997 01/06/1997 01/06/1997 01/13/1997
01/24/1997
01/27/1997
01/27/1997 01/27/1997 01/27/1997 01/27/1997

12/23/1996)
174 STATUS CONFERENCE REPORT by dfts (old) (Entered: 01/02/1997)
168 OBJECTIONS by defendants to subpoena requesting production and inspection of documents from the Richard J Donovan Correctional Facility (old) (Entered: 12/26/1996)
169 OBJECTIONS by defendants to subpoena requesting production and inspection of documents from Wasco State Prison (old) (Entered: 12/26/1996)
170 OBJECTIONS by defendants to subpoena requesting production and inspection of documents from the California Institution for men (old) (Entered: 12/26/1996)
171 OBJECTIONS by defendants to subpoena requesting production and inspection of documents from the Deuel Vocational Institution (old) (Entered: 12/26/1996)
172 OBJECTIONS by defendants to subpoena requesting production and inspection of documents from San Quentin State Prison (old) (Entered: 12/26/1996)
167 ORDER by Honorable Lawrence K. Karlton scheduling conference further set for 10:00 1/9/97 All disputed issues of discovery are STAYED until further order of the court; the parties are also directed to file with the court not later than 4 days prior to the scheduled status conference a proposed discovery plaint pursuant to FRCP 26(f) (cc: all counsel) (old) (Entered: 12/26/1996)
173 PROPOSED DISCOVERY PLAN filed by dfts (old) (Entered: 01/02/1997)
175 STATUS CONFERENCE REPORT by plaintiffs (kdc) (Entered: 01/02/1997)
176 NOTICE OF DISCOVERY PLAN by pltfs Steven G Williams, Vincent Cervantes (kdc) (Entered: 01/06/1997)
177 AMENDED STATUS REPORT by pltfs Steven G Williams, Vincent Cervantes (kdc) (Entered: 01/06/1997)
178 MOTION for leave to amend status conference report by pltfs Steven G Williams, Vincent Cervantes (kdc) (Entered: 01/06/1997)
LODGED Stipulation of parties: scheduling of deposition of Jonathan Simon for January 1997 (dd) (Entered: 01/07/1997)
179 ORDER by Honorable Lawrence K. Karlton scheduling conference held on 1/13/97; pretrial conference vacated; trial vacated; discovery ddl set for 2/13/97; motion filing ddl set for 4/14/97; in−court hearing on all motions is set for 9:15 6/13/97 in Courtroom 1 ; for more specific details refer to order (cc: all counsel) (old) (Entered: 01/13/1997)
180 NOTICE: most knowledgeable person list by defendants Pete Wilson, California State, Michael Connolly, Steven G Baker, Thomas J Giaquinto, John W Gillis, Manuel C Guaderrama, Ron E Koenig, Arthur F Van Court, Ted Rich, Carol J Bentley, Tom Maddock, James Gomez, Joe Sandoval, James W Nielsen, Gregory W Harding, Eddie Myers and Marisela Montes (dd) (Entered: 01/27/1997)
181 NOTICE OF MOTION to compel discovery of documents by pltfs Steven G Williams and Vincent Cervantes ; Motion Hearing not noticed (dd) (Entered: 01/27/1997)
182 MOTION for order shortening time by pltfs Steven G Williams and Vincent Cervantes ; Motion Hearing not noticed (dd) (Entered: 01/27/1997)
183 DECLARATION of Attorney Stephen J Perrello in support of pltfs' motion to compel [182−1] and order shortening time [181−1] (dd) (Entered: 01/27/1997)
184 MOTION to compel discovery of documents by pltfs Steven G Williams and Vincent Cervantes ; Motion Hearing not noticed (dd) (Entered: 01/29/1997)
185 MEMORANDUM by pltfs Steven G Williams and Vincent Cervantes in support of motion to compel discovery of documents [184−1] (dd) (Entered: 01/29/1997)

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 50 of 168

01/27/1997 01/27/1997 01/28/1997 02/05/1997 02/06/1997 02/06/1997 02/06/1997 02/06/1997 02/06/1997 02/06/1997 02/06/1997 02/07/1997
02/07/1997
02/07/1997 02/12/1997
02/21/1997 02/21/1997 02/21/1997 02/21/1997

LODGED order shortening time and setting hearing on motion to compel by pltfs Steven G Williams and Vincent Cervantes (dd) (Entered: 01/29/1997)
LODGED stipulation: deposition of Arthur Van Swait (dd) (Entered: 01/29/1997)
186 STIPULATION of parties: deposition of Arthur Van Swait (dd) (Entered: 01/29/1997)
187 STIPULATION AND ORDER by Magistrate Judge Gregory G. Hollows: that the deposition of plaintiffs' proposed witness Arthur Van Swait may be terminated (cc: all counsel) (old) (Entered: 02/05/1997)
LODGED order shortening time and setting hearing on motion to compel production of documents (old) (Entered: 02/07/1997)
188 NOTICE OF MOTION to compel discovery of documents by pltfs Steven G Williams and Vincent Cervantes (old) (Entered: 02/07/1997)
189 MOTION to compel discovery of documents by pltfs Steven G Williams and Vincent Cervantes Motion Hearing not noticed (old) (Entered: 02/07/1997)
190 POINTS AND AUTHORITIES by pltfs Steven G Williams and Vincent Cervantes in support of motion to compel discovery documents [189−1] (old) (Entered: 02/07/1997)
191 DECLARATION of attorney Stephen J Perrello Jr in support of pltfs' motion to compel production and in support of order shortening time [189−1] (old) (Entered: 02/07/1997)
192 PROOF OF SERVICE by pltf Steven G Williams and Vincent Cervantes of motion to com[pel discovery of documents and supporting documentation (old) (Entered: 02/07/1997)
193 NOTICE OF STATUS of discovery documents and omitted or missing discovery documents pursuant to court's order of 1/10/97 by pltfs Steven G Williams and Vincent Cervantes (old) (Entered: 02/07/1997)
194 NOTICE OF MOTION AND MOTION for protective order by dfts James Gomez, Joe Sandoval, Pete Wilson, California State, Michael Connolly, Tom Maddock, Steven G Baker, Carol J Bentley, Thomas J Giaquinto, John W Gillis, Manuel C Guaderrama, Ron E Arthur F Van Court and Ted Rich ; Motion Hearing Set for 10:00 3/6/97 before Honorable Gregory G Hollows and . . . (dd) (Entered: 02/10/1997)
194 MEMORANDUM of points and authorities by dfts James Gomez, Joe Sandoval, Pete Wilson, California State, Michael Connolly, Carol J Bentley, Thomas J Giaquinto, John W Gillis, Manuel C Guaderrama, Ron E Koenig, Arthur F Van Court and Ted Rich in support of motion for protective order [194−1] (dd) (Entered: 02/11/1997)
194 AFFIDAVIT of Michael G Lee re motion for protective order [194−1] (dd) (Entered: 02/11/1997)
195 ORDER by Magistrate Judge Gregory G. Hollows SETTING HEARING on motion for protective order and motions to compel [194−1] 189−1] [182−1] [181−1] [184−1] 10:00 2/26/96; the parties are required to file a 251 stipulation (cc: all counsel) (old) (Entered: 02/12/1997)
196 STIPULATION pursuant to Local Rule 251 (old) (Entered: 02/24/1997)
197 DECLARATION of Michael G Lee regarding preparation and filing of 251 stipulation (old) (Entered: 02/24/1997)
198 AFFIDAVIT of Stephen J Perrello Jr icounsel for plaintiff regarding 251 stipulation (old) (Entered: 02/24/1997)
199 NOTICE by defendant regarding substitution of Tom Maddock in place of James Gomez (old) (Entered: 02/24/1997)

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 51 of 168

02/24/1997 02/24/1997 02/24/1997 02/24/1997 02/24/1997 03/05/1997
03/13/1997 03/13/1997 03/13/1997 03/13/1997 04/09/1997 04/09/1997 04/09/1997 04/09/1997 04/09/1997 04/09/1997 04/09/1997 04/09/1997 04/09/1997

200 REQUEST by pltfs Steven G Williams and Vincent Cervantes for telephonic conference (old) (Entered: 02/25/1997)
201 AFFIDAVIT of Stephen J Perrello Jr in support of motions for telephonic conference (old) (Entered: 02/25/1997)
202 AFFIDAVIT of pltffs' counsel in motions dealing with discovery matters (old) (Entered: 02/25/1997)
LODGED order for telephonic conference by pltfs Steven G Williams and Vincent Cervantes (old) (Entered: 02/25/1997)
203 POINTS AND AUTHORITIES by pltfs Steven G Williams and Vincent Cervantes in support of local rule 251 (d) affidavit of pltfs' counsel (old) (Entered: 02/25/1997)
204 ORDER by Magistrate Judge Gregory G. Hollows directing dfts to provide pltfs with the Reception Center materials (discussed in Order) / finding the motion for protective order by dfts [194−1] MOOT., GRANTING motion to compel discovery of documents by pltfs [189−1], finding the motion to compel discovery of documents by pltfs Steven G Williams and Vincent Cervantes [181−1] MOOT as resolved by above; finding the motion to compel discovery of documents by pltfs [184−1] MOOT as resolved by above (cc: all counsel) (old) (Entered: 03/05/1997)
205 MOTION to Magistrate Judge for modification of opinion dated 3/5/97 by pltfs Steven G Williams and Vincent Cervantes Motion Hearing not noticed (old) (Entered: 03/14/1997)
206 AFFIDAVIT of Stephen J Perrello Jr in support of motion to Magistrate Judge for modification of opinion dated 3/5/97 [205−1] (old) (Entered: 03/14/1997)
207 PROOF OF SERVICE by pltfs Steven G Williams and Vincent Cervantes of motion for modification of opinion dated 3/5/97 and supporting documentation (old) (Entered: 03/14/1997)
208 POINTS AND AUTHORITIES by pltfs Steven G Williams and Vincent Cervantes in support of motion to Magistrate Judge for modification of opinion dated 3/5/97 (old) (Entered: 03/14/1997)
209 NOTICE of pltfs' motion to continue hearing on motions for summary judgment (dd) (Entered: 04/10/1997)
210 MOTION for continuance of hearing on motions for summary judgment by pltfs Steven G Williams and Vincent Cervantes ; Motion Hearing not noticed (dd) (Entered: 04/10/1997)
211 MEMORANDUM of points and authorities by pltfs Steven G Williams and Vincent Cervantes in support of motion for continuance of hearing on pre−trial motions [210−1] (dd) (Entered: 04/10/1997)
212 DECLARATION of Stephen J Perrello Jr in support of motion for continuance of pre−trial motions [210−1] (dd) (Entered: 04/10/1997)
213 MOTION for telephonic conference on the motion to continue by pltfs Steven G Williams and Vincent Cervantes ; motion hearing not noticed (dd) (Entered: 04/10/1997)
214 MOTION for order shortening time by pltfs Steven G Williams and Vincent Cervantes ; Motion Hearing not noticed (dd) (Entered: 04/10/1997)
215 AFFIDAVIT of Stephen J Perrello Jr in support of pltfs motions for order shortening time and for telephonic conference on motion to continue [214−1] [213−1] (dd) (Entered: 04/10/1997)
216 PROOF OF SERVICE by pltfs Steven G Williams and Vincent Cervantes of motion for continuance of hearings and supporting documents [210−1] (dd) (Entered: 04/10/1997)
LODGED order on pltfs' motions to set hearing, to shorten time and to conduct hearing telephonically by pltfs Steven G Williams and Vincent Cervantes (dd)

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 52 of 168

04/11/1997 04/11/1997 04/14/1997
04/14/1997 04/14/1997 04/14/1997 04/14/1997 04/14/1997 04/14/1997 04/14/1997 04/14/1997 04/14/1997 04/14/1997 04/14/1997 04/14/1997 04/14/1997 04/14/1997 04/14/1997 04/14/1997 04/14/1997 04/14/1997 04/14/1997 04/14/1997

(Entered: 04/10/1997)
243 DEPOSITION of Julien Thompson taken on the following date(s) 12/30/97 (old) (Entered: 04/15/1997)
244 DEPOSITION of Julien Thompson taken on the following date(s) 11/14/96 (old) (Entered: 04/15/1997)
LODGED order on pltfs' motions to set hearing, to shorten time and to conduct hearing telephonically by pltfs Steven G Williams and Vincent Cervantes (old) (Entered: 04/14/1997)
217 DEPOSITION of Ernest W Coldren Jr taken on the following date(s) 5/15/96 volume III 386−549 (old) (Entered: 04/15/1997)
218 DEPOSITION of Ernest W Coldren taken on the following date(s) 5/13/97 Volume II pages 251−386 (old) (Entered: 04/15/1997)
219 DEPOSITION of Ernest W Coldren taken on the following date(s) 4/25/96 Volume I pages 1 − 250 (old) (Entered: 04/15/1997)
220 DEPOSITION of Jerry Cardwell taken on the following date(s) 11/22/96 (old) (Entered: 04/15/1997)
221 DEPOSITION of Craig L Brown taken on the following date(s) 10/31/96 Volume 1 page 1 − 165 (old) (Entered: 04/15/1997)
222 DEPOSITION of Craig L Brown taken on the following date(s) 10/31/97 page 1 − 165 (old) (Entered: 04/15/1997)
223 DEPOSITION of John Bridges taken on the following date(s) 12/6/96 (old) (Entered: 04/15/1997)
224 EXHIBITS from witness John Bridges A−L (old) (Entered: 04/15/1997)
225 DEPOSITION of Sal D Baca taken on the following date(s) 12/3/96 Volume I (old) (Entered: 04/15/1997)
227 DEPOSITION of Lee Cox taken on the following date(s) 11/1/95; Volume 1 1−212 (old) (Entered: 04/15/1997)
229 DEPOSITION of Michael Connolly taken on the following date(s) 11/5/96 Volume 1 pages 1 − 195 (old) (Entered: 04/15/1997)
230 DEPOSITION of Michael Connoly taken on the following date(s) 10/9/96 Volume II pages 233−393 (old) (Entered: 04/15/1997)
231 DEPOSITION of Michael Matthews Connolly taken on the following date(s) 7/29/96 at 9:35 (old) (Entered: 04/15/1997)
232 DEPOSITION of Michael Matthews Connolly taken on the following date(s) 7/29/97, Volume I (old) (Entered: 04/15/1997)
233 DEPOSITION of Paul Comiskey taken on the following date(s) 11/19/96 (old) (Entered: 04/15/1997)
234 DEPOSITION of Joe Daniel Garcia taken on the following date(s) 4/18/96 (old) (Entered: 04/15/1997)
235 DEPOSITION of A J Garcia taken on the following date(s) 11/2/95 Volume I pages 1 − 225 (old) (Entered: 04/15/1997)
236 DEPOSITION of A J Garcia taken on the following date(s) 11/2/95 Volume I pages 1 − 225 (old) (Entered: 04/15/1997)
237 DEPOSITION of James Dowling taken on the following date(s) 11/7/97 Volume I Pages 1 − 139 (old) (Entered: 04/15/1997)
238 DEPOSITION of Isaac Cubillos taken on the following date(s) 12/23/96 Volume II pages 200 − 330 (old) (Entered: 04/15/1997)

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 53 of 168

04/14/1997 04/14/1997 04/14/1997 04/14/1997 04/14/1997 04/14/1997 04/14/1997 04/14/1997 04/14/1997 04/14/1997 04/14/1997 04/14/1997 04/14/1997 04/14/1997
04/14/1997
04/14/1997 04/14/1997
04/14/1997
04/15/1997 04/15/1997
04/15/1997

239 DEPOSITION of Gary Diamond taken on the following date(s) 12/10/96 Volume I Pages 1 − 96 (old) (Entered: 04/15/1997)
240 DEPOSITION of Gary M Diamond taken on the following date(s) 12/11/96 Volume 2 pages 97 − 230 (old) (Entered: 04/15/1997)
241 DEPOSITION of Michael Trott taken on the following date(s) 11/6/97 Volume I pages 1−224 (old) (Entered: 04/15/1997)
242 DEPOSITION of Julien Thompson taken on the following date(s) 1/24/97 (old) (Entered: 04/15/1997)
245 DEPOSITION of Clyde Shelton taken on the following date(s) 11/19/96 (old) (Entered: 04/15/1997)
246 DEPOSITION of James W Nielsen taken on the following date(s) 12/19/96 Volume I (old) (Entered: 04/15/1997)
247 DEPOSITION of Anthony W Myers taken on the following date(s) 12/19/96 (old) (Entered: 04/15/1997)
248 DEPOSITION of Marisela Montes taken on the following date(s) 12/12/96 Volume II pages 99 to 198 (old) (Entered: 04/15/1997)
249 DEPOSITION of Marisela Montes taken on the following date(s) 12/2/96 Volume I (old) (Entered: 04/15/1997)
250 DEPOSITION of Rowan Klein taken on the following date(s) 12/17/96 (old) (Entered: 04/15/1997)
251 DEPOSITION of Cynthia Hayden−Fisher taken on the following date(s) 11/15/96 (old) (Entered: 04/15/1997)
252 DEPOSITION of James H Gomez taken on the following date(s) 12/5/96 Volume I (old) (Entered: 04/15/1997)
253 MOTION for summary judgment motion TO BE HEARD by Honorable Lawrence K. Karlton ; Motion Hearing Set For 6/13/97 at 9:15 (old) (Entered: 04/15/1997)
254 MOTION to vacate or stay filing date for summary judgment pending resolution of pltfs' motion to continue by pltfs Steven G Williams and Vincent Cervantes motion TO BE HEARD by Honorable K. Karlton; Motion Hearing not noticed (old) (Entered: 04/15/1997)
255 POINTS AND AUTHORITIES by pltfs Steven G Williams and Vincent Cervantes in support of motion to vacate or stay filing date of motions pending hearing on motion to continue [254−1] (old) (Entered: 04/15/1997)
256 LIST OF DEPOSITIONS filed with the court concurrently with dfts' notice of motion; and motion for summary judgment [254−1] (old) (Entered: 04/15/1997)
257 AFFIDAVIT of Stephen J Perrello Jr in support of pltfs' motion to vacate or stay filing date of motions pending hearing on motion to continue [254−1] (old) (Entered: 04/15/1997)
258 PROOF OF SERVICE of proposed order on pltf's motions to set hearing, to shorten time, and to conduct hearing telephonically; pltf's motion to vacate or stay filing date for summary judgment and supporting documentation [254−1] (old) (Entered: 04/15/1997)
226 DEPOSITION of Isaac Cubillos taken on the following date(s) 12/12/96 Volume 1 1−199 (old) (Entered: 04/15/1997)
228 ORDER by Honorable Lawrence K. Karlton ORDERING that plaintiff's request for an extension of time within which to file a motion for summary judgment is hereby denied (cc: all counsel) (old) (Entered: 04/15/1997)
LODGED stipulation of parties: exhibit to deposition of witness Louis S Katz (old) (Entered: 04/16/1997)

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 54 of 168

04/22/1997 04/24/1997 04/25/1997 05/13/1997 05/13/1997 05/13/1997 05/19/1997 05/28/1997 05/30/1997 05/30/1997 05/30/1997 05/30/1997 05/30/1997 05/30/1997 05/30/1997
05/30/1997 06/02/1997 06/04/1997
06/06/1997

259 STIPULATION AND ORDER by Magistrate Judge Gregory G Hollows: the letter and resume of Mr Katz may be appended to his deposition and be deemed pltfs' Exhibit A to that deposition (cc: all counsel) (dd) (Entered: 04/22/1997)
LODGED Document lodged [0−0] VACATED (old) (Entered: 04/24/1997)
260 ERRATA by dfts to notice of motion and motion for summary judgment [253−1] (old) (Entered: 04/28/1997)
261 NOTICE OF LODGING by plaintiff of supplemental documents in opposition to dfts' motion for summary judgment [253−1] (kdc) (Entered: 05/14/1997)
261 POINTS AND AUTHORITIES in Opposition to dfts' motion for summary judgment by plts (ndd) (Entered: 09/26/2002)
261 EXHIBITS in support of Opposition to dfts' motion for summary judgment [261−1] (ndd) (Entered: 09/26/2002)
262 AMENDMENT to notice of lodgment dated 5/13/97 by pltfs Steven G Williams and Vincent Cervantes (old) (Entered: 05/20/1997)
263 REPLY by defendant to plaintiff's opposition to defendant's motion for summary judgment [253−1] (old) (Entered: 05/29/1997)
265 MOTION for summary adjudication of facts, claims and for summary judgment by plaintiffs (kdc) (Entered: 06/02/1997)
264 POINTS AND AUTHORITIES by plaintiff to motion for summary adjudication of facts, claims and for summary judgment by plaintiffs [265−1] (kdc) (Entered: 06/02/1997)
266 MOTION for leave to file motion for summary adjudication of facts, claims and for summary judgment by plaintiff (kdc) (Entered: 06/02/1997)
267 EX PARTE MOTION for order shortening time to hear motion for leave to file motion for summary adjudication/judgment by plaintiff (kdc) (Entered: 06/02/1997)
LODGED Order shortening time and setting hearing on motion for leave to file motion for summary adjudication/judgment; granting temporary stay by plaintiffs (kdc) (Entered: 06/02/1997)
268 AFFIDAVIT of Stephen J Perrello, Jr in support of pltfs' motion for leave to file motion to file motion for summary adjudication/judgment; motion for order shortening time [267−1], [266−1] (kdc) (Entered: 06/02/1997)
269 POINTS AND AUTHORITIES by plaintiffs to motion for order shortening time to hear motion for leave to file motion for summary adjudication/judgment by plaintiff [267−1], to motion for leave to file motion for summary adjudication of facts, claims and for summary judgment by plaintiff [266−1] (kdc) (Entered: 06/02/1997)
270 PROOF OF SERVICE by plaintiffs of [269−1], [268−1], [0−0], [267−1], [266−1], [264−1], [265−1] (kdc) (Entered: 06/02/1997)
LODGED statement of undisputed facts by pltfs Steven G Williams and Vincent Cervantes (old) (Entered: 06/03/1997)
271 MOTION to strike pltfs' motion for summary judgment and related documents filed in violation of court order by dfts Sandoval, Wilson, California State, Connolly, Maddock, Baker, Carol J Bentley, Thomas J Giaquinto, Gillis, Guaderrama, Koenig, Van Court, Ted Rich, Tom Maddock motion TO BE HEARD by Honorable Lawrence K. Karlton; Motion Hearing For 6/13/97 at 9:15 (old) (Entered: 06/04/1997)
272 ORDER by Honorable Lawrence K. Karlton ORDERING motion for continuance of hearing on motions for summary judgment by pltfs Steven G Williams and Vincent Cervantes [210−1] GRANTED; Re: cross−motions for summary judgment [253−1] HEARING RESET FOR 9:15 a.m. 7/18/97 Pltf's counsel ordered to pay sanctions in the amount of $250.00 not later than 15 days from the effective date of

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 55 of 168

06/19/1997
06/24/1997
06/24/1997 06/24/1997 06/24/1997 06/24/1997 06/24/1997 06/25/1997 06/25/1997 06/25/1997 06/25/1997 06/27/1997
06/30/1997
06/30/1997 07/03/1997 07/03/1997 07/07/1997 07/07/1997 07/07/1997
07/07/1997 07/07/1997

this order (cc: all counsel) (old) (Entered: 06/06/1997)
273 AFFIDAVIT of Stephen J Perrello, Jr regarding sanctions imposed by the court's order of 6/6/97 [272−2]; sanctions paid − receipt no 179312 − amount $250.00 (kdc) (Entered: 06/20/1997)
277 NOTICE by defendant regarding filing of original sealed transcripts of depositions re: deponents Brown, 11/18/96; Cunningham 11/8/97; Freisted 12/5/96; O'Bryan 11/25/97 and 11/23/97; Simon 1/27/97 (old) (Entered: 06/26/1997)
278 TRANSCRIPT of 11/18/96 deposition of Charles Ray Brown by C/R Deborah Neeley (old) (Entered: 06/26/1997)
280 TRANSCRIPT of 12/5/97 deposition of Chris Freistedt by C/R Jeanne S Beauchamp (old) (Entered: 06/26/1997)
281 TRANSCRIPT of 11/25/97 deposition of Kathryn O'Bryan by C/R Deborah Neeley (old) (Entered: 06/26/1997)
282 TRANSCRIPT of 12/23/96 deposition of Kathryn O'Bryan by C/R Deborah Neeley (old) (Entered: 06/26/1997)
283 TRANSCRIPT of 1/27/97 of deposition of Jonathan Simon by C/R Deborah Neeley (old) (Entered: 06/26/1997)
274 TRANSCRIPT of 11/15/96 hearing on deposition of Michael Foster by C/R Elena Schall−Wilkinson (old) (Entered: 06/26/1997)
275 TRANSCRIPT of 12/17/97 deposition of James Jones by C/R Elena Schall−Wilkinson (old) (Entered: 06/26/1997)
276 NOTICE by defendant regarding filing original SEALED transcripts of depositions (not attached) (old) (Entered: 06/26/1997)
279 TRANSCRIPT of 2/8/96 deposition of Louis Cunningham by C/R Deborah Neeley (old) (Entered: 06/26/1997)
284 OPPOSITION by dfts Connolly, Baker, Bentley, Giaquinto, Gillis, Guaderrama, Koenig, Van Court, Rich and Maddock to motion for summary adjudication of facts, claims and for summary judgment by plaintiffs [265−1] (dd) (Entered: 07/01/1997)
285 MOTION for leave to by defendant motion TO BE HEARD by Honorable Lawrence K. Karlton ; Motion Hearing Set For 7/13/97 at 9:15 (Sunday) (old) (Entered: 07/01/1997)
286 OPPOSITION by defendants to plaintiff's statement of undisputed facts in support of motion for summary judgment (old) (Entered: 07/01/1997)
287 NOTICE of filing original sealed transcripts of depositions by dft (old) (Entered: 07/07/1997)
288 DEPOSITION of Thornell Brown taken on the following date(s) 12/23/96 (old) (Entered: 07/07/1997)
289 ERRATA by dfts' of notice of motion and motion for leave to file dfts' opposition to pltfs' statement of undisputed facts [285−1] (old) (Entered: 07/08/1997)
290 ERRATA to dfts' opposition to pltfs' statement of undisputed facts in support of motion for summary judgment by dft [265−1] (old) (Entered: 07/08/1997)
291 REPLY by pltfs Steven G Williams and Vincent Cervantes to dfts' opposition to pltfs' motion for summary adjudicaton of facts claims and for summary judgment (old) (Entered: 07/08/1997)
292 NOTICE OF ERRATA by pltfs Steven G Williams and Vincent Cervantes regarding motion for summary judgment (old) (Entered: 07/08/1997)
293 MOTION for judicial notice by pltf Steven G Williams and Vincent Cervantes motion TO BE HEARD by Honorable K. Karlton; Motion Hearing Set For 7/18/97

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 56 of 168

07/07/1997 07/07/1997
07/07/1997 07/07/1997 07/07/1997
07/11/1997 07/15/1997 07/15/1997
07/15/1997 07/15/1997 07/22/1997 07/22/1997 07/24/1997
07/24/1997 07/29/1997 08/04/1997 08/04/1997 08/04/1997 08/04/1997 08/08/1997 08/08/1997

at 9:15 (old) (Entered: 07/08/1997)
294 DECLARATION of Stephen J Perrello in support of motion for judicial notice [293−1] (old) (Entered: 07/08/1997)
295 MEMORANDUM of points and authorities in support of motion for judicial notice by pltfs Steven G Williams and Vincent Cervantes [293−1] (old) (Entered: 07/08/1997)
296 PROOF OF SERVICE by plfs Steven G Williams and Vincent Cervantes of motion for summary judgment (old) (Entered: 07/08/1997)
297 PROOF OF SERVICE by pltfs Steven G Williams and Vincent Cervantes of motion for judicial notice [293−1] (old) (Entered: 07/08/1997)
298 PROOF OF SERVICE by plaintiff Steven G Williams of pltf's reply points and authorities in support of motion for summary adjudication of facts, claims and for summary judgment [265−1] (old) (Entered: 07/08/1997)
299 NOTICE OF MOTION AND MOTION to continue date for filing of pretrial statements by defendants ; motion hearing not noticed (dd) (Entered: 07/14/1997)
300 NOTICE OF SUPPLEMENTAL LODGMENT by plaintiffs (kdc) (Entered: 07/15/1997)
301 MOTION for exception from Local Rules 134(e), 260(e) by plaintiffs ; motion TO BE HEARD by Honorable Lawrence K. Karlton; Motion Hearing Set For 9:15 7/18/97 (dd) (Entered: 07/18/1997)
302 DECLARATION of Stephen Perrello in support of pltfs' motion for exception from LR 134(e), 260(e) [301−1] (dd) (Entered: 07/18/1997)
303 PROOF OF SERVICE by plaintiff of motion for exception [301−1] and supporting declaration (dd) (Entered: 07/18/1997)
304 SEALED document by defendants (kdc) (Entered: 07/23/1997)
305 NOTICE by defendants of filing original sealed transcript of deposition of Mark Wilson (kdc) (Entered: 07/23/1997)
306 MINUTES before Honorable Lawrence K. Karlton motion for summary adjudication of facts, claims and for summary judgment by plaintiffs [265−1] SUBMITTED, motion for judgment [253−1] SUBMITTED C/R Cathie Bodene (old) (Entered: 07/28/1997)
307 NOTICE OF ERRATA by plaintiff Steven G Williams, plaintiff Vincent Cervantes to motion for summary judment [265−1] (old) (Entered: 07/28/1997)
308 PROOF OF SERVICE by Stephen J Perrello, Jr of pltfs' Notice of Errata dated 7/23/97 (old) (Entered: 07/30/1997)
309 NOTICE by defendants of filing sealed transcript of deposition of Mark Wilson (old) (Entered: 08/05/1997)
310 DEPOSITION of Julien Thompson taken on the following date(s) 1/24/97 (old) (Entered: 08/05/1997)
311 DEPOSITION of Julien Thompson taken on the following date(s) 12/30/96 (old) (Entered: 08/05/1997)
312 DEPOSITION of Julien Thompson taken on the following date(s) 11/14/96 (old) (Entered: 08/05/1997)
313 TRANSCRIPT of 7/24/97 hearing on pltf's motion for summary judgment; by C/R Bodene (old) (Entered: 08/11/1997)
314 ERRATA to notice of filing original sealed transcripts of depositions of Julien Thompson [312−1] (old) (Entered: 08/11/1997)

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 57 of 168

09/19/1997
11/03/1997 11/03/1997 11/03/1997 11/03/1997 11/12/1997
11/21/1997 12/01/1997 12/04/1997
02/13/1998 02/17/1998 02/18/1998 02/18/1998 02/19/1998 02/19/1998
02/20/1998 02/25/1998
03/02/1998 03/02/1998

315 ORDER TO SHOW CAUSE by Honorable Lawrence K. Karlton pltf's counsel to show cause within 45 days of effective date of this order why the class should not be decertified for lack of adequate representation (cc: all counsel) (old) (Entered: 09/19/1997)
316 EX PARTE MOTION for status conference by pltfs (old) (Entered: 11/04/1997)
317 POINTS AND AUTHORITIES by pltfs in support of motion for status conference [316−1] (old) (Entered: 11/04/1997)
318 AFFIDAVIT of pltfs' counsel in support of motion for status conference [316−1] (old) (Entered: 11/04/1997)
319 PROOF OF SERVICE by pltfs of ex parte motion [316−1], affidavit [318−1] and points and authorities in support of motion [317−1] (old) (Entered: 11/04/1997)
320 ORDER by Honorable Lawrence K. Karlton ORDERING motion for status conference by pltfs [316−1] GRANTED scheduling conference SET for 3:30 12/1/97 in chambers ; all parties appearing from outside Sacramento County may appear telephonically by placing a conference call at (916) 498−5670 at the time specified for the conference; pltfs are directed to file and serve on all other parties not later than 10 days prior to the conference, a state report containing, inter alia, any modifications to the scheduling order, amendments and motions that pltfs anicipate (cc: all counsel) (old) (Entered: 11/12/1997)
321 STATUS CONFERENCE REPORT by plaintiffs (kdc) (Entered: 11/24/1997)
322 MINUTES of proceedings before Honorable Lawrence K. Karlton further status conference set for 2:30 3/2/98 (old) (Entered: 12/03/1997)
323 ORDER by Honorable Lawrence K. Karlton ORDERING pltf's to file and serve upon dfts a proposed amended complaint and proposed amended discovery plan by 2/13/98; further status conference for 2:30 3/2/98 ; all other proceedings are STAYED until further order of this court (cc: all counsel) (old) (Entered: 12/04/1997)
LODGED Stipulation and (proposed) order extending time to lodge proposed amended complaint by plaintiffs (kb) Modified on 02/17/1998 (Entered: 02/17/1998)
LODGED Stipulation and (proposed) order extending time to lodge proposed amended coplaint and proposed amended discovery plan by plaintiff Steven G Williams, plaintiff Vincent Cervantes (kb) (Entered: 02/18/1998)
LODGED proposed amnded discovery plan by plaintiffs (old) (Entered: 02/20/1998)
LODGED proposed 3rd amnded complaint by plaintiffs (old) (Entered: 02/20/1998)
324 ORDER by Honorable Lawrence K. Karlton ORDERING that the document lodged 2/13/98 is approved as filed (cc: all counsel) (dd) (Entered: 02/19/1998)
325 STIPULATION AND ORDER by Honorable Lawrence K. Karlton: pltfs shall have until 2/18/98 to lodge with the court and serve on dfts a proposed amended complaint and proposed discovery plan; status conference set for 2:30 3/2/98 (cc: all counsel) (dd) (Entered: 02/19/1998)
326 NOTICE of hearing by courtroom clerk scheduling conference reset to 2:00 3/4/98 ( cc: all parties) (dd) (Entered: 02/24/1998)
327 STATUS REPORT by defendants James Gomez, Joe Sandoval, Pete Wilson, California State, Michael Connolly, Tom Maddock, Steven G Baker, Carol J Bentley, Thomas J Giaquinto, John W Gillis, Manuel C Guaderrama, Ron E Koenig, Arthur F Van Court, Ted Rich, Tom Maddock (old) (Entered: 02/26/1998)
328 STATUS CONFERENCE STATEMENT by plaintiff (ch) (Entered: 03/02/1998)
LODGED stipulation and [proposed] order continuing status hearing by plaintiff (old) (Entered: 03/03/1998)

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 58 of 168

03/02/1998 03/05/1998
03/09/1998 03/11/1998 04/08/1998 04/27/1998
05/01/1998 05/07/1998 05/11/1998
05/14/1998
05/26/1998 05/26/1998
05/28/1998 06/01/1998
06/05/1998 06/05/1998 06/05/1998 06/05/1998
09/07/1998 09/18/1998 09/23/1998

LODGED Document of 3/2/98 not used [0−0] VACATED (old) (Entered: 03/09/1998)
329 SUPPLEMENTAL STATUS REPORT by dfts California State, Pete Wilson, Tom Maddock, James Gomez, Steven G Baker, Carol J Bentley, Thomas J Giaquinto, John W Gillis, Manuel C Guaderrama, Ron E Arthur F Van Court, Ted Rich, Michael Connolly (old) (Entered: 03/06/1998)
330 MINUTES of status conference before Honorable Lawrence K. Karlton further status conference set for 1:30 5/11/98 (ch) (Entered: 03/10/1998)
331 ORDER by Honorable Lawrence K. Karlton ORDERING status conference RESET for 1:30 5/11/98 before LKK (cc: all counsel) (kdc) (Entered: 03/11/1998)
332 LETTER to court from Michael Resnick re being subpeoned as a witness for the pltf (kdc) (Entered: 04/11/1998)
333 COURT LETTER by Hon Gregory G Hollows re M Resnick's letter [332−1] that he must file an appropriate motion in order for the court to consider this matter; motion must be served on the dfts (cc: all counsel) (ndd) (Entered: 04/29/1998)
334 STATUS REPORT by plaintiffs (old) (Entered: 05/04/1998)
335 AMENDMENT JOINT STATUS CONFERENCE STATEMENT by defendant, plaintiff [334−1] (old) (Entered: 05/08/1998)
336 MINUTES before Honorable Lawrence K. Karlton status conference held on 5/11/98; pretrial conference set for 1:30 7/29/99; trial set for 10:00 1/11/00 (kdc) (Entered: 05/13/1998)
337 SCHEDULING ORDER Honorable Lawrence K. Karlton; discovery ddl set for 4/1/99; dispositive motion ddl 6/15/99; pretrial conf 1:30 7/29/99 trial 10:00 1/11/00 before Judge Lawrence K Karlton (cc: all counsel) (old) (Entered: 05/14/1998)
LODGED Association of Attorneys and Order by plaintiffs (ndd) (Entered: 05/27/1998)
338 THIRD AMENDED COMPLAINT [96−1] by plaintiffs adding Alfred Yancy, Hossie Welch, Jerry Valdivia, Quintin L Villanueva, Cal Terhune, Michael Connolly, Edward McNair (ndd) (Entered: 05/27/1998)
LODGED Stipulation and Proposed Order permitting extension of discovery without court approval by plaintiffs (ndd) (Entered: 05/29/1998)
339 ORDER by Hon Lawrence K Karlton GRANTING the association of the attorney Karen Kennard, Michael W Bien, Donald Specter for the plts (ndd) (Entered: 06/01/1998)
340 LODGED stipulation and proposed order permitting extensions of discovery without court approval VACATED (old) (Entered: 06/05/1998)
341 ORDER by Magistrate Judge Gregory G. Hollows ORDERING extension of time to resond to discovery for all parties (cc: all counsel) (old) (Entered: 06/05/1998)
342 ANSWER TO THIRD AMENDED COMPLAINT by defendant (old) Modified on 06/08/1998 (Entered: 06/08/1998)
342 DEMAND for jury trial by defendants State of California, Wilson, Villanueva, Terhune, Montes, McNair, Nielsen, Gillis, Bentley, Giaquinto, Guaderrama, Keonig, Van Court, and Connolly (old) (Entered: 06/08/1998)
344 LETTER to court from counsel for plaintiffs seeking clarification of Mr Cervantes' status (ndd) (Entered: 09/28/1998)
345 LETTER to court from counsel for defendants response to plts' letter brief [344−1] (ndd) (Entered: 09/28/1998)
343 LETTER to court from counsel for plaintiff Vincent Cervantes providing a copy of a declaration from Vincent Cervantes of his class status (ch) (Entered: 09/23/1998)

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 59 of 168

09/28/1998 09/28/1998 10/14/1998 10/14/1998 10/26/1998
11/20/1998 11/20/1998 11/20/1998 11/24/1998
11/30/1998 12/01/1998 12/07/1998 12/14/1998
12/17/1998 12/24/1998 01/04/1999 01/25/1999 01/27/1999

346 ORDER by Honorable Lawrence K. Karlton ORDERING re letter [344−1] that the court ORDERS class counsel to file a 4th amended complaint in accordance with this order within 15 days (cc: all counsel) (ndd) (Entered: 09/28/1998)
347 LETTER to court from counsel for plaintiffs replied to the letter brief from the AG of 9/15/98 [345−1] (ndd) (Entered: 09/29/1998)
348 LETTER to court from counsel for plts enclosed the 4th Amended Complaint (ndd) (Entered: 10/15/1998)
349 FOURTH AMENDED COMPLAINT for Declaratory and Injunctive Relief [338−1] by plts Jerry Valdivia, Hossie Welch, Alfred Yancy (ndd) (Entered: 10/15/1998)
350 NOTICE OF MOTION AND MOTION to dismiss by dfts California State, Pete Wilson, Michael Connolly, Thomas J Giaquinto, John W Gillis, Manuel C Guaderrama, Ron E Koenig, Arthur F Van Court, Edward McNair, Michael Connolly, Quintin L Villanueva, Cal Marisela Montes, James W Nielsen, Carol J Bentley alternatively, to strike by State dfts ; motion TO BE HEARD by Honorable Lawrence K. Karlton, Motion Hearing Set For 12/14/98 10:00am (ndd) (Entered: 10/27/1998)
351 NOTICE AND EX PARTE Application for order to shorten time on plt's Motion for Sanctions (ndd) (Entered: 11/23/1998)
352 DECLARATION of Rita A Hao in support of Ex Parte Application for order to shorten time on plt's motion for sanctions [351−1] (ndd) (Entered: 11/23/1998)
LODGED Proposed Order granting ex parte Application for order to shorten time on plt's motion for sanctions by plaintiff (ndd) (Entered: 11/23/1998)
353 ORDER by Honorable Lawrence K. Karlton ORDERING ex parte application to shorten time on a motion for sactions is [351−1] DENIED;as to any prodecural objections pltfs have to dfts motion to dismiss plaintiffs may raise them in their opposition brief (cc: all counsel) (ch) (Entered: 11/24/1998)
354 OPPOSITION to Motion to dismiss [350−1] and motion to strike by State dfts [350−2] (ndd) (Entered: 12/01/1998)
355 NOTICE of reassignment of counsel; William Cashdollar has been reassigned to represent dfts in this case (old) Modified on 12/02/1998 (Entered: 12/02/1998)
356 REPLY brief by defendant Joe Sandoval (old) (Entered: 12/08/1998)
357 MINUTES of 12/14/98 before Honorable Lawrence K. Karlton motion to dismiss by dfts California State, Pete Wilson, Michael Connolly, Thomas J Giaquinto, John W Gillis, Manuel C Guaderrama, Ron E Koenig, Arthur F Van Court, Edward McNair, Michael Connolly, Quintin L Villanueva, Cal Marisela Montes, James W Nielsen, Carol J Bentley [350−1] DENIED, motion to strike by State dfts [350−2] DENIED; order to be prepared by the court C/R Cathie Bodene (ch) (Entered: 12/15/1998)
358 ORDER AFTER HEARING by Honorable Lawrence K. Karlton ORDERING that dfts' motion to dismiss [350−1] is DENIED (cc: all counsel) (ndd) (Entered: 12/17/1998)
359 ORDER by Honorable Lawrence K. Karlton ORDERING that the Clerk and all parties shall caption any pleadings and papers filed in this matter as Valdivia v Wilson et al (cc: all counsel) (ndd) (Entered: 12/24/1998)
360 ANSWER by defendants to fourth amended complaint (as) (Entered: 01/05/1999)
362 MINUTES of Status Conference before Honorable Lawrence K. Karlton: Pretrial set for 12/9/2000 2:00pm; Court Trial set for 2/23/2000 10:00am (ndd) (Entered: 01/28/1999)
361 STATUS (PRETRIAL SCHEDULING) ORDER by Honorable Lawrence K. Karlton ORDERING motion filing ddl set for 9/1/99 ; discovery ddl set for 7/1/99 pretrial conference set for 2:00 12/9/99 trial set for 2/23/00 (cc: all counsel) (ndd) (Entered: 01/27/1999)

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 60 of 168

02/03/1999
02/12/1999 02/12/1999 02/26/1999
02/26/1999 02/26/1999 02/26/1999 03/12/1999
03/12/1999
04/16/1999
04/16/1999
04/16/1999 04/16/1999 04/16/1999 04/16/1999 04/16/1999 04/16/1999 04/16/1999 04/16/1999
04/16/1999 04/16/1999

363 ORDER by Honorable Lawrence K. Karlton ORDERING motions to compel discovery be noticed on the magistrate judge's calendar no later than 6/1/99 (cc: all counsel) (as) (Entered: 02/03/1999)
364 DECLARATION of Michael I Begert re Sanctions (ndd) Modified on 02/16/1999 (Entered: 02/16/1999)
365 RECEIPT of $150 for sanctions by Michael I Begert; Receipt # 190863 (ndd) (Entered: 02/16/1999)
366 MOTION for clarification of 4/12/95 order and to compel Mr Connolly to answer deposition questions re the BPT's document retention and purging policies and practices after 2/13/97 by plaintiff Steven G Williams ; Motion Hearing Set for 3/11/99 at 10:00 (old) (Entered: 03/01/1999)
367 DECLARATION of Stephanie L Gatens in support of [366−1], [366−2] (old) (Entered: 03/01/1999)
368 JOINT STIPULATION submitted by pltfs (old) (Entered: 03/01/1999)
369 JOINT STIPULATION re discovery disagreement (old) (Entered: 03/12/1999)
ORDER by Magistrate Judge Gregory G. Hollows ORDERING re joint stipulation [369−1]; APPROVED as filed; no notice to parties required (cc: all counsel) (old) (Entered: 03/12/1999)
370 ORDER by Magistrate Judge Gregory G. Hollows ORDERING The 4/12/95 Order was effective until the close of discovery on 2/13/97; and motion to compel discovery by pltf Williams [366−2] GRANTED (cc: all counsel) (old) (Entered: 03/12/1999)
371 DECLARATION by dfts of William V Cashdollar in support of motion to compel answers to dfts' first set of requests for admission [366−1] (ljr) (Entered: 04/19/1999)
372 DECLARATION by dfts of William V Cashdolla in support of motion for protective order and memorandum of points and authorities re six discovery requests (pltfs) (ljr) (Entered: 04/19/1999)
373 DECLARATION by dfts of william V Cashdollar in support of motion to compel answers to dfts' first set fo interrogatories (ljr) (Entered: 04/19/1999)
374 MOTION to compel by plaintiff Steven G Williams, plaintiff Vincent Cervantes Motion Hearing Set for 4/22/99 at 10:00 (old) (Entered: 04/19/1999)
375 DECLARATION of Stephanie L Gatens in support of plaintiff's motion to compel [374−1] (old) (Entered: 04/19/1999)
376 PROOF OF SERVICE by plaintiff of motion to compel and suppporting documents [374−1] (old) (Entered: 04/19/1999)
377 STIPULATION between the parties ree Rule 251 (old) (Entered: 04/19/1999)
378 STIPULATION filed by dfts (old) (Entered: 04/19/1999)
379 MOTION for protective order Motion Hearing Set for 4/22/99 at 10:00 (old) (Entered: 04/19/1999)
380 MOTION to compel by Pete Wilson, California State, Michael Connolly, Edward McNair, Quintin L Villanueva, Cal Terhune, Ted Rich, Tom Maddock, Carol J Bentley, Thomas J Giaquinto, John W Gillis, Manuel C Guaderrama, Ron E Koenig, Arthur F Van Court, Michael Connolly, Marisela Montes, James W Nielsen Motion Hearing Set for 4/22/99 at 10:00 (old) (Entered: 04/19/1999)
381 MEMORANDUM OF POINTS AND AUTHORITIES in support of motion to compel [380−1] (old) (Entered: 04/19/1999)
382 MEMORANDUM OF POINTS AND AUTHORITIES in support of motion for protective order [379−1] (old) (Entered: 04/19/1999)

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 61 of 168

04/16/1999 04/16/1999 04/16/1999 04/21/1999
04/22/1999 04/29/1999 04/29/1999 04/30/1999
04/30/1999 04/30/1999
04/30/1999 04/30/1999 04/30/1999 04/30/1999 04/30/1999

383 MEMORANDUM OF POINTS AND AUTHORITIES in support of motion to compel (old) (Entered: 04/19/1999)
384 MOTION to compel discovery re dfts first set of interrogatories Motion Hearing Set for 4/22/99 at 10:00 (old) (Entered: 04/19/1999)
385 JOINT STIPULATION re discovery disputes (old) (Entered: 04/19/1999)
386 ORDER by Magistrate Judge Gregory G. Hollows ORDERING motion to compel discovery re dfts first set of interrogatories [384−1] HEARING CONTINUED TO 10:00 5/6/99; motion to compel by Pete Wilson, California State, Michael Connolly, Edward McNair, Quintin L Villanueva, Cal Terhune, Ted Rich, Tom Maddock, Carol J Bentley, Thomas J Giaquinto, John W Gillis, Manuel C Guaderrama, Ron E Koenig, Arthur F Van Court, Michael Connolly, Marisela Montes, James W Nielsen [380−1] HEARING CONTINUED TO 10:00 5/6/99; stipulations [385−1] [377−1] STRICKEN from the record; joint stipulations re motions to compel due by 4/29/99 (cc: all counsel) (old) (Entered: 04/21/1999)
387 MINUTES before Magistrate Judge Gregory G. Hollows motion for protective order [379−1] SUBMITTED, motion to compel by plaintiff Steven G Williams, plaintiff Vincent Cervantes [374−1] SUBMITTED; the court gives the parties a chance to submit briefs by 4/29/99 (old) (Entered: 04/23/1999)
388 Dfts' supplemental briefing re issue having to do with pltfs' request to observe and videotape parole revocation proceedings (as) (Entered: 04/30/1999)
389 REQUEST by defendants for for leave to replace exhibit (old) (Entered: 04/30/1999)
390 ORDER by Magistrate Judge Gregory G. Hollows ORDERING pltfs' motion to compel the 30(b)(6) deposition noticed 1/5/99 GRANTED; pltfs were permitted to take deposition of Kelly Mayfield and Jan Enloe pursuant to notice and testimony at deposition of Mike Connelly; dfts motion for protective order precluding these depositions was DENIED; pltfs' motion to compel depositions of dfts Cal Terhune and Quintin L. Villanueva was DENIED; dfts' motion for protective order precluding these depositions was GRANTED; pltf's motion to compel deposition of Edward McNair was GRANTED; and dfts' motion for protective order precluding this deposition was DENIED; pltf's motion to compel 30(b)(6) deposition noticed 2/24/99 was GRANTED; dfts' motion for protective order precluding this deposition was DENIED; and the parties were directed to provide further simultaneous briefing within 5 days on pltfs' reqeust served 2/11/99 to inspect and videotape parole proceedings (cc: all parties) (old) (Entered: 04/30/1999)
391 WITNESS list by pltf Alfred Yancy, Hossie Welch, Jerry Valdivia (old) (Entered: 05/03/1999)
392 MOTION to extend time to answer for Michael Connolly, Edward McNair, Cal Terhune, Quintin L Villanueva, Arthur F Van Court, Ron E Koenig, Manuel C Guaderrama, John W Gillis, Thomas J Giaquinto, Carol J Bentley, James W Nielsen, Marisela Montes, Michael Connolly, California State Motion Hearing Set for 6/3/99 at 10:00 (old) (Entered: 05/03/1999)
393 DECLARATION of William V. Cashdollar (old) (Entered: 05/03/1999)
394 JOINT STIPULATION re discovery dispute re pltf's 1st set of requests for admission (old) (Entered: 05/03/1999)
395 JOINT STIPULATION re discovery dispute re pltf's 1st set of interrogatories (old) (Entered: 05/03/1999)
396 DECLARATION of Jennifer L. Jonak in support of pltf's opposition to dft's motion for an order to determine sufficiency of responses (old) (Entered: 05/03/1999)
397 DECLARATION of Jennifer L. Jonak in support of joint stipulation between parties re pltf's responses to dft's 1st set of interrogatories (old) (Entered: 05/03/1999)

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 62 of 168

04/30/1999 05/03/1999 05/03/1999 05/05/1999
05/05/1999 05/05/1999 05/06/1999
05/07/1999 05/10/1999 05/11/1999 05/11/1999 05/13/1999
05/14/1999
05/17/1999 05/17/1999 05/17/1999 05/24/1999

398 LETTER BRIEF by pltfs in support of motion to compel (old) (Entered: 05/03/1999)
399 DESIGNATION of expert witnesses by defendants (ndd) (Entered: 05/04/1999)
400 TRANSCRIPT of 4/22/99 hearing on dft's motion for protective order by C/R Dona Euler (old) (Entered: 05/04/1999)
401 BRIEF by Edward McNair, Michael Connolly, Cal Terhune, Quintin L Villanueva, Arthur F Van Court, Ron E Koenig, Manuel C Guaderrama, John W Gillis, Thomas J Giaquinto, Carol J Bentley, James W Nielsen, Marisela Montes, California State to pltf's opposition to dft's motion for an extension of time to respond to 4 discovery matters (old) (Entered: 05/06/1999)
402 LETTER to court from counsel for pltfs re stipulation (old) (Entered: 05/06/1999)
403 MEMORANDUM IN OPPOSITION by plaintiffs to dft's motion for an extension of time to respond to discovery Cervantes to [392−1] (old) (Entered: 05/06/1999)
404 MINUTES of cross−motions to compel before Magistrate Judge Gregory G. Hollows; pltf's to file a statement listing every theory they wish to present at trial; status conference re discovery set for 3:00 5/24/99 ; the motions were granted and denied in part with the court to issue further decisions at the conference as related to the motions (old) (Entered: 05/07/1999)
405 TRANSCRIPT of 5/6/99 hearing on dft's motion to compel (old) (Entered: 05/10/1999)
406 ORDER by Magistrate Judge Gregory G. Hollows ORDERING that scheduling/compliance hearing is set for 3:00 5/24/99 ; and disclosing provisions for further discovery (cc: all counsel) (old) (Entered: 05/10/1999)
LODGED stipulation and order by Steven G Williams, Vincent Cervantes, Alfred Yancy, Hossie Welch, Jerry Valdivia re information produced in Armstrong v Davis (old) (Entered: 05/12/1999)
407 PROOF OF SERVICE of lodged joint stipulation and order re information in Armstrong v Davis (old) (Entered: 05/12/1999)
408 ORDER by Magistrate Judge Gregory G. Hollows ORDERING lodged joint stipulation GRANTED; cousel for pltfs may immediately review all info produced in the "Armstrong" litigation; within 5 days of their review, pltfs will provide dfts with a list of those individuals whose circumstances support the claims asserted, as well as the documents supporting said claims (cc: all counsel) (old) (Entered: 05/13/1999)
409 LETTER to court from counsel McCutchen Doyle for pltfs Hossie Welch, Jerry Valdivia clarifing that pltfs are to serve and file the list of theories comtemplated by Section C1 of the court's 5/10/99 order rather than 5/16/99 (old) (Entered: 05/17/1999)
410 DFTS' COMPLIANCE with court order re Declarations [406−2] (ndd) (Entered: 05/18/1999)
411 PLTS' STATEMENT of Claims (ndd) (Entered: 05/18/1999)
412 PLTS' OBJECTIONS to dfts' Second Sets of Requests for Admissions (ndd) (Entered: 05/18/1999)
413 MINUTES of day 1 before Magistrate Judge Gregory G. Hollows; court will require a protective order that the video tapes will not be used other than this litigation; status re joint stipulation and order to be signed by Judge Wilkins; all producable data, computer generated list of appeals will be produced within 10 days; dft to file response as to why information is not available by computer; pltf to provide CDC forms within 10 days; depositions to be completed by 6/10/99; hearing on discovery issues set for 3:00 6/7/99 C/R ECRO (old) (Entered: 05/25/1999)

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 63 of 168

05/27/1999 06/07/1999 06/10/1999 06/14/1999 06/17/1999 06/17/1999 06/18/1999 06/18/1999 06/21/1999
06/21/1999 06/22/1999 06/23/1999
06/24/1999 07/30/1999 08/20/1999
08/24/1999
08/24/1999 08/25/1999

414 ORDER by Magistrate Judge Gregory G. Hollows re outstanding discovery matters; see order for details re individual discovery procedures (cc: all counsel) (old) (Entered: 05/27/1999)
415 MINUTES of status conference re discovery before Magistrate Judge Gregory G. Hollows: the court and counsel discuss several issues relating to discovery, further hearing set for 1:30 6/21/99 (dd) (Entered: 06/10/1999)
416 MEMORANDUM AND ORDER by Magistrate Judge Gregory G Hollows: further discovery status conference set for 1:30 6/21/99; the parties are directed to provide discovery status reports by 6/17/99 (cc: all counsel) (dd) (Entered: 06/10/1999)
417 LETTER to court from counsel Karen Kennard requesting that defendants produce statistics regarding the number of parolee requests for counsel that are granted and denied (old) (Entered: 06/15/1999)
418 NOTICE by dfts of withdrawal of specified designated experts experts [399−1] (old) (Entered: 06/18/1999)
419 JOINT MID LITIGATION statement (old) (Entered: 06/18/1999)
420 STATUS REPORT by plaintiff Steven G Williams, plaintiff Vincent Cervantes, plaintiff Hossie Welch, plaintiff Jerry Valdivia (old) (Entered: 06/21/1999)
421 DECLARATION of Stephanie L. Gatens in support of [420−1] (old) (Entered: 06/21/1999)
422 MINUTES of status conference re discovery disputes before Magistrate Judge Gregory G. Hollows; scheduling conference held on 6/21/99, all dates vacated and formal discovery stayed ; parties have signed consent forms as to scheduling decisions only; only aspect of discovery not stayed is the 2 days observation taping; further scheduling conference set for 1:30 8/20/99 (old) (Entered: 06/22/1999)
423 NOTICE of consent to proceed before US Magistrate Judge for scheduling purposes ONLY by Alfred Yancy, Hossie Welch, Jerry Valdivia, Steven G Williams, Vincent Cervantes (old) (Entered: 06/22/1999)
425 TRANSCRIPT of 6/21/99 hearing on continued status conference re discovery by C/R Dona Euler (old) (Entered: 06/23/1999)
424 ORDER by Magistrate Judge Gregory G. Hollows ORDERING all dates are vacated; discovery is stayed until further ordered; with the exception that the two remaining days of videotaping parole proceedings shall be completed; the parties are ordered to appear at 8/20/99 on 8/20/99, to report on the final resolution of this litigation, and for further appropriate orders (cc: all counsel) (old) (Entered: 06/23/1999)
426 TRANSCRIPT of 5.24.99 hearing on status conference re discovery by C/R ECRO (old) (Entered: 06/25/1999)
427 CONSENT to proceed before a Magistrate by plaintiffs (old) (Entered: 08/02/1999)
428 MINUTES before Magistrate Judge Gregory G. Hollows motion granted in part and denied in part; written order to be prepared by court; jury trial set for 5/9/00 before Lawrence K Karlton; pretrial conference set for 2:30 3/20/00 before Lawrence K Karlton ; C/R ECRO Dona Euler (old) (Entered: 08/23/1999)
429 AMENDED SCHEDULING ORDER by Magistrate Judge Gregory G. Hollows ; discovery ddl set for 12/15/99 ;dispositive motion ddl 9:15 1/20/00; pretrial conference set for 2:30 3/20/00 before Judge Karlton; Jury Trial set for 10:00 5/9/00 before Judge Karlton; (cc: all counsel) (old) (Entered: 08/24/1999)
430 TRANSCRIPT of 6/7/99 continued hearing on status conference re discovery by C/R Dona Euler (old) (Entered: 08/25/1999)
431 TRANSCRIPT of 8/20/99 hearing on discovery by C/R Dona Euler (old) (Entered: 08/26/1999)

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 64 of 168

09/01/1999
09/08/1999 09/08/1999 09/08/1999 09/09/1999 09/10/1999 09/14/1999 09/15/1999 09/16/1999
09/17/1999 09/17/1999 09/23/1999 09/23/1999 09/30/1999 10/07/1999 10/07/1999 10/12/1999 10/18/1999
10/21/1999

432 ORDER by Magistrate Judge Gregory G. Hollows ORDERING dfts to certify that they have produced all documentation used at the hearings/screenings and dfts are to produce copies of all central and medical files relating to those parolees videotaped, with those file to be available for copying by 9/7/99; also, by 9/7/99 preliminary arrangements shall have been made for the institutions to accomodate copy services to be retained by pltfs (cc: all counsel) (old) (Entered: 09/01/1999)
433 REQUEST for reconsideration by the district court of magistrate judge's ruling by plaintiffs ; Oral argument requested; motion TO BE HEARD by Honorable Lawrence K. Karlton (ndd) (Entered: 09/09/1999)
434 DECLARATION of Stephanie L Gatens in support of plts' Requet for reconsideration by the district court of magistrate judge's ruling [433−1] (ndd) (Entered: 09/09/1999)
435 PROOF OF SERVICE by plaintiffs of [434−1], [433−1] (ndd) (Entered: 09/09/1999)
LODGED stipulated protective order by pltfs Steven G Williams, Vincent Cervantes, Alfred Yancy, Hossie Welch, Jerry Valdivia (old) (Entered: 09/10/1999)
436 RESPONSE by defendants to motion to compel (old) (Entered: 09/13/1999)
437 PROTECTIVE ORDER by Magistrate Judge Gregory G. Hollows: see order for details (cc: all counsel) (old) (Entered: 09/14/1999)
438 LETTER to court from counsel for defendants in response to plt's letter and forwarding files relating to Mr Holsten to plt (ndd) (Entered: 09/16/1999)
439 ORDER by Honorable Lawrence K. Karlton ORDERING motion for reconsideration by the district court of magistrate judge's ruling by plaintiffs [433−1] HEARING SET FOR Oral Argument 10:00 10/18/99; dfts shall file their opposition to plts' request for consideration no later than 9/30/99; plts may close no later than 10/7/99 (cc: all counsel) (ndd) (Entered: 09/16/1999)
440 PLTS' REPLY in support of Status Report re Completed Depositions (ndd) Modified on 09/20/1999 (Entered: 09/20/1999)
441 PROOF OF SERVICE by plaintiffs of [440−1] (ndd) (Entered: 09/20/1999)
442 ORDER by Magistrate Judge Gregory G. Hollows ORDERING several discovery matters remain outstanding; including depositions; argument on these matters set for 10:00 10/7/99 (cc: all counsel) (old) (Entered: 09/23/1999)
443 OPPOSITION by dft to pltf's reply [440−1]to the Courts order (old) (Entered: 09/24/1999)
444 DFTS' OPPOSITION to motion for reconsideration by the district court of magistrate judge's ruling by plaintiffs [433−1] (ndd) (Entered: 10/01/1999)
445 PLTS' REPLY in support of motion for reconsideration by the district court of magistrate judge's ruling [433−1] (ndd) (Entered: 10/08/1999)
446 MINUTES of discovery hrg before Magistrate Judge Gregory G. Hollows the Court and counsel discuss various discovery matters, the Court will issue an order memorializing all matters discussed today (old) (Entered: 10/08/1999)
447 TRANSCRIPT of 10/7/99 hearing on discovery by C/R ECRO (old) (Entered: 10/13/1999)
448 MINUTES before Honorable Lawrence K. Karlton re motion for reconsideration by the district court of magistrate judge's ruling by plaintiffs [433−1] court ordered magistrate judge Hollows' order stayed; scheduling conference for 1:30 11/10/99 C/R C Bodene (ndd) (Entered: 10/19/1999)
449 ORDER by Honorable Lawrence K. Karlton ORDERING that Magistrate Judge Hollows 8/24/99 sched order is STAYED; this matter is SET for further scheduling conference for 1:30 11/10/99 ; counsel shall FILE and SERVE, within 15 days of the date of this order, letters proposing ways in which the court might manage the

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 65 of 168

10/26/1999
11/03/1999 11/10/1999 11/15/1999
11/17/1999 11/18/1999
11/18/1999 11/22/1999 11/23/1999 12/03/1999 12/03/1999 12/03/1999 12/03/1999 12/06/1999

litigation of this matter more efficiently (cc: all counsel) (old) (Entered: 10/21/1999)
450 ORDER by Magistrate Judge Gregory G. Hollows ORDERING this Court's amended scheduling order filed 8/24/99 has been stayed by order of the District Judge, who will conduct a further hrg re management of this litigation on 11/10/99; Accordingly, pending further order of the District Judge, the undersigned will not issue further discovery orders; (cc: all counsel) (old) (Entered: 10/26/1999)
451 LETTER BRIEF to court from counsel for plaintiffs in response to court's order [449−1] re schedule (ndd) (Entered: 11/04/1999)
452 MINUTES of 11/10/99 Status conference before Honorable Lawrence K. Karlton further scheduling conference SET for 3:30 4/24/00 (pb) (Entered: 11/12/1999)
453 STIPULATION AND ORDER by Honorable Lawrence K. Karlton ordering that joint stipulation re cost sharing of duplication costs associated with 436 central and medical file documents GRANTED; parties agreed to share fifty−fifty all costs incurred to date on costs related to the copying, scanning and numbering of documents (cc: all counsel) (as) (Entered: 11/15/1999)
454 MEMORANDUM AND ORDER regarding discovery issues by Magistrate Judge Gregory G. Hollows (cc: all counsel) (kdc) (Entered: 11/17/1999)
455 ORDER by Honorable Lawrence K. Karlton ORDERING that within 45 days of the date of this order, dfts shall produce all outstanding files requested by plts and approved by the magistrate judge; within 90 days thereafter, plts shall identify no more than 10 exemplary plts per constitutional claim; plt will only be permitted to call such designated class members as witnesses at trial and only those cases will be considered by the court in connection with law and motion practice addressing whether there are triable issues of fact concerning substantive issues; plts' experts may, in connection with their report, list the names or otherwise identify, any other member of the class who the expert believes has sufffered a deprivation covered by each asserted claim of constitutional violation, and may rely on the facts of those attached cases in support o their conclusions including any opinion as to the extent of purported constitutional violations; upon the magistrate judge issuing an order disoposing of the discovery matters presently before him, the parties shall direct all discovery matters to this court; pretrial conference and trial dates currently set in this matter are VACATED; [433−1]; a further Status conference SET for 3:30 4/24/00 (cc: all counsel) (ndd) (Entered: 11/18/1999)
LODGED proposed order regarding additional discovery NOT USED (kdc) (Entered: 11/18/1999)
456 LETTER to court from counsel Jenifer Lonak regarding status conference order (kdc) (Entered: 11/22/1999)
457 SUPPLEMENTAL JOINT STIPULATION between parties regarding cost−sharing of dupliation costs associated with 436 Central and Medical file documents (old) (Entered: 11/24/1999)
458 PLTS' REQUEST for clarification and reconsideration by the District Court of Magistrate Judge's Ruling (ndd) (Entered: 12/06/1999)
459 PROOF OF SERVICE by plaintiffs of [458−1] (ndd) (Entered: 12/06/1999)
460 DFTS' REQUEST for reconsideration by the District Court to Magistrate Judge's Ruling of 11/17/99; Objections; Memorandum of points and authorities in support (ndd) (Entered: 12/06/1999)
461 DECLARATION of Stephanie L Gatens in support of plts' Request for clarification and reconsideration of the District court of Magistrate Judge's ruling [458−1] (ndd) (Entered: 12/06/1999)
462 REQUEST by plaintiffs for clarification and reconsideration by the district judge of the magistrate judge's ruling (as) (Entered: 12/07/1999)

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 66 of 168

12/06/1999 12/06/1999 12/07/1999 12/08/1999
12/08/1999 12/29/1999 01/10/2000 01/10/2000 01/18/2000
01/18/2000 01/18/2000 01/18/2000
01/18/2000 01/18/2000 01/20/2000
01/31/2000
02/02/2000

463 PROOF OF SERVICE by plaintiff of [462−1] (as) (Entered: 12/07/1999)
464 DECLARATION of Stephan L Gatens in support of pltfs' request for clarificatiions [462−1] (as) (Entered: 12/07/1999)
ORDER by Honorable Lawrence K. Karlton ORDERING re stipulation re cost sharing [457−1]; approved as filed; no notice to parties required (cc: all counsel) (old) (Entered: 12/07/1999)
465 ORDER by Honorable Lawrence K. Karlton ORDERING that the parties shall file oppositions to each other's motions [460−1] [462−1] no later than 1/10/00; the parties may close no later than 1/17/00; the matter are SET FOR 10:00 1/31/00 (cc: all counsel) (ndd) (Entered: 12/08/1999)
466 DFTS' OPPOSITION to plts' 12/3/99 Request for reconsideration of the magistrate judge's 11/17/99 Order [462−1] (ndd) (Entered: 12/09/1999)
LODGED Supplemental Joint Stipulation for an extension of time to produce medical and central file and Order by plaintiffs (ndd) (Entered: 12/30/1999)
467 PLTFS' OPPOSITION to dfts' request for reconsideration by the District Court of the Magistrate Judge's 11/17/99 ruling by plaintiff Alfred Yancy, plaintiff Hossie Welch, plaintiff Jerry Valdivia to [460−1] (old) (Entered: 01/11/2000)
468 DECLARATION of Jennifer L. Jonak in support of pltfs' opposition to dftd' request for reconsideration of magistrate's 11/17/99 ruling [467−1] (old) (Entered: 01/11/2000)
469 REPLY by plaintiff Vincent Cervantes, defendant James W Nielsen, defendant Thomas J Giaquinto, defendant John W Gillis, defendant Manuel C Guaderrama, defendant Ron E Koenig, defendant Arthur F Van Court, defendant Cal A Terhune, defendant Michael Connolly, defendant Edward McNair regarding pltf's opposition to dfts' request for reconsideration re discovery [467−1] (old) (Entered: 01/19/2000)
470 BRIEF by pltfs Alfred Yancy, Hossie Welch, Jerry Valdivia, Vincent Cervantes, Steven G Williams in support of request for clarification and reconsideration by dist court of magistrate judge's ruling (ljr) (Entered: 01/19/2000)
471 DECLARATION by pltfs of Karen L Kennard in support of request for clarification and reconsideration by dist court of magistrate judge's ruling [462−1] (ljr) Modified on 01/19/2000 (Entered: 01/19/2000)
LODGED proposed order granting pltfs' request for clarification and reconsideration by dist court of magistrate judge's ruling and denying dfts' request for reconsideration by the dist court of magistrate judge's ruling of 11/17/99 by pltfs Steven G Williams, Vincent Cervantes, Alfred Yancy, Hossie Welch, Jerry Valdivia (ljr) (Entered: 01/19/2000)
472 PROOF OF SERVICE by plaintiffs of [0−0], [471−1], [470−1], [469−1] (ndd) (Entered: 01/20/2000)
LODGED Document Proposed Order granting plts' request for clarification and reconsideration by the District Court of Magistrate Judge's ruling not to be signed (ndd) (Entered: 02/10/2000)
473 STIPULATION AND ORDER by Honorable Lawrence K. Karlton ORDERED that dfts are granted a 30 day extension of time, to and including 2/2/00, to complete production of outstanding medical and entral files requested by plt and approved by the Magistrate Judge (cc: all counsel) (ndd) (Entered: 01/20/2000)
474 MINUTES before Honorable Lawrence K. Karlton motion for reconsideration by the district court of magistrate judge's ruling by plaintiffs TO BE HEARD by Magistrate Judge Gregory G. Hollows settlement conference set for 10:00 2/8/00 C/R C Bodene (ndd) (Entered: 02/01/2000)
475 ORDER by Honorable Lawrence K. Karlton ORDERING lodged [0−0] propsed order re reconsideration TERMINATED, re order [455−2] settlement conference set for 10:00 2/8/00 before the Honorable Lawrence K. Karlton ; the parties' cross

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 67 of 168

02/02/2000 02/03/2000
02/09/2000 02/09/2000 02/10/2000 02/11/2000 02/14/2000 02/24/2000 02/25/2000
02/25/2000
03/03/2000 03/08/2000
03/17/2000

motions for reconsideration are DENIED and the magistrate judge's discovery orders are AFFIRMED, with the following exceptions: (1) pursuant to the parties' stipulation, the entire BPT appeals deposition need not be redone; pltfs may, however, conduct a further deposition regarding: (a) who represents parolees during the appeals process and (b) the use of the form 1073; (2) given dfts' representation that they cannot provide Rule 30(b)(6) designees to testify regarding dfts' system−wide practices, dfts shall provide pltfs with a list, by region, of all CA Dept. of Corrections and Board of Prison Terms personnel who have been employed by dfts since 1/1/98 and who have regularly conducted screenings or hearings since that date; (3) the magistrate judge shall RESOLVE the fourteen discovery issues referred to in the section of his memo titled "Other Discovery"; (4) dfts shall have 30 days from the date of this order to produce the medical and central files referenced in the court's 11/18/99 order; (5) a Settlement Conference is SET before the undersigned on 2/8/00 10:00 (cc: all counsel) (old) (Entered: 02/02/2000)
476 TRANSCRIPT of 1/31/00 hearing on cross−motions to reconsider magistrate's ruling by C/R C Bodene (ndd) (Entered: 02/02/2000)
477 NOTICE by defendant Cal A Terhune, defendant Carol J Bentley, defendant Thomas J Giaquinto, defendant John W Gillis, defendant Manuel C Guaderrama, defendant Ron E Koenig, defendant Arthur F Van Court, defendant Michael Connolly, defendant Edward McNair, defendant James W Nielsen regarding re dfts' ex parte notice re withdrawal of consent to proceed with the settlement conference before the trial judge (old) (Entered: 02/04/2000)
LODGED Order referring discovery to to the Magistrate Judge for resolution by plaintiffs (ndd) (Entered: 02/10/2000)
478 LETTER to court from counsel for plaintiffs enclosed the Proposed Order referring discovery to the Magistrate Judge while court's order [475−1] did not address the issue in Magistrate Judge's ruling [454−1] (ndd) (Entered: 02/10/2000)
479 ORDER by Honorable Lawrence K. Karlton ORDERING lodged Proposed Order Referring Discovery to Magistrate Judge for resolution STRICKEN−−insufficient copy (ndd) (Entered: 02/10/2000)
480 LETTER to court from counsel for plaintiff enclosed a proposed order referring discovery to the Magistrate Judge for resolution (ndd) (Entered: 02/14/2000)
LODGED Proposed Order referring discovery to the Magistrate Judge for resolution by plaintiffs (ndd) Modified on 02/15/2000 (Entered: 02/14/2000)
481 MINUTES of Status Conference before Honorable Lawrence K. Karlton: Stipulation and order to follow (old) (Entered: 02/24/2000)
482 ORDER by Honorable Lawrence K. Karlton ORDERING that the magistrate judge shall resolve any issues ruled on at 10/7/99 hearing [446−1] but not included in the order issued by the magistrate judge on 11/17/99 [454−1] (cc: all counsel) (ndd) (Entered: 02/25/2000)
483 ORDER by Magistrate Judge Gregory G. Hollows ORDERING certain discovery matters have been referred to the undersigned by orders from the District Judge; accordingly the parties are directed to submit, on or before 3/17/00 a joint stipulation; re order [475−2], re order [482−1] (cc: all counsel) (old) (Entered: 02/25/2000)
LODGED Joint Stipulation extending time for production by defendants (ndd) (Entered: 03/06/2000)
484 STIPULATION AND ORDER by Honorable Lawrence K. Karlton ORDERED that the court grants dfts, to and including 4/7/00 to produce the remaining 76 Central and Medical Files and plts, 90 days thereafter to identify their exemplary plts (cc: all counsel) (ndd) (Entered: 03/08/2000)
485 JOINT STIPULATION re discovery disagreements; oral argument requested (old) (Entered: 03/20/2000)

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 68 of 168

03/17/2000 03/17/2000 03/17/2000 03/17/2000 03/24/2000
03/29/2000
03/31/2000
03/31/2000 03/31/2000
04/05/2000 04/11/2000 04/13/2000 04/17/2000 04/17/2000 04/18/2000 04/18/2000 04/18/2000 04/18/2000 04/19/2000

486 DECLARATION of Jennifer L. Jonak in support of joint stipulation re discovery disagreements [485−1] (old) (Entered: 03/20/2000)
487 DECLARATION of Stephanie L Gatens in support of joint stipulation re discovery disagreements [485−1] (old) (Entered: 03/20/2000)
488 EXHIBITS by plaintiff Steven G Williams, plaintiff Vincent Cervantes regarding joint stipulation re discovery disagreements [485−1] (old) (Entered: 03/20/2000)
489 PROOF OF SERVICE by plaintiff Steven G Williams, plaintiff Vincent Cervantes of [487−1], [486−1], [485−1] (old) (Entered: 03/20/2000)
490 ORDER by Magistrate Judge Gregory G. Hollows ORDERING re stipulation [485−1]; dfts' request for protective orders, presented in the 3/17/00 stipulation, re the further discovery contemplated in the 10/7/99 hearing and memorialized in the 11/18/99 order are DENIED; dfts' requests regarding potentially inconsistant 30(b)(6) deposition testimony are DENIED; and pltfs' request concerning atty information are DENIED; and see order re resolved and unresolved matters; in−court hearing on discovery matters is set for 10:00 4/13/00 in courtroom 24 (cc: all counsel) (old) (Entered: 03/24/2000)
491 NOTICE of hearing in−court hearing set for 10:00 4/13/00 On 3/24/00, the undersigned issued and order setting this case for hearing with regard to discovery matters; that order contained a typographical error with regard to the date of the hearing; this matter is set for hearing on 4/13/00 at 10:00 a.m. ( cc: ) (old) (Entered: 03/29/2000)
492 NOTICE OF MOTION AND MOTION to dismiss case by defendant Memorandum of points and authorities in support; motion TO BE HEARD by Honorable Lawrence K. Karlton ; Motion Hearing Set For 4/8/00 10:00am (ndd) Modified on 04/11/2000 (Entered: 04/03/2000)
493 DFTS' EXHIBITS in support of their Motion to dismiss [492−1] (ndd) (Entered: 04/03/2000)
494 NOTICE OF MOTION AND MOTION for protective order or other appropriate stay by defendants ; Memorandum of points and authorities in support; motion TO BE HEARD by Honorable Lawrence K. Karlton ; Motion Hearing For 5/8/00 10:00am (ndd) (Entered: 04/03/2000)
LODGED Stipulation and Proposed Order Continuing Hearing on dfts' Motion to dismiss by plaintiffs (ndd) (Entered: 04/06/2000)
495 STIPULATION AND ORDER by Honorable Lawrence K. Karlton ORDERED the motion to dismiss case by defendants [492−1] is continued to 10:00 5/22/00 (cc: all counsel) (ndd) (Entered: 04/11/2000)
496 MINUTES on discovery motions before Magistrate Judge Gregory G. Hollows; the court ordered further hearing on discovery; court to prepare order C/R Tape (old) (Entered: 04/14/2000)
RESERVICE of DOCUMENT(S) [495−1] to all parties (ndd) (Entered: 04/17/2000)
497 DFTS' RESPONSE to Supplemental Information raised by plts re Sanctions motion (ndd) (Entered: 04/18/2000)
498 LETTER to court from counsel Jennifer L Jonak enclosing documents in opposition to class certification and other discovery matters (old) Modified on 01/15/2002 (Entered: 04/18/2000)
499 STATUS REPORT by plaintiffs (ndd) (Entered: 04/19/2000)
500 DFTS' ADDITIONAL RESPONSE to Supplemental Information raised by plts' re Sanctions motion (ndd) (Entered: 04/19/2000)
501 DFTS' STATUS REPORT (ndd) (Entered: 04/19/2000)
502 ORDER by Magistrate Judge Gregory G. Hollows ORDERING: Plaintiff's motion to compel discovery is granted in part and denied in part as indicated in this order

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 69 of 168

04/19/2000 04/20/2000 05/08/2000 05/08/2000 05/08/2000 05/08/2000 05/11/2000 05/12/2000 05/17/2000 05/18/2000
05/22/2000
05/22/2000
06/01/2000 06/06/2000
06/07/2000 06/29/2000 07/03/2000

Grimes sanctions are awarded as indicated in this order Defendants shall comply with this order in all respects in a timely fashion (See order for more specific details) (cc: all counsel) (old) (Entered: 04/19/2000)
503 TRANSCRIPT of 4/13/00 hearing on Discovery motions by C/R ECRO (old) (Entered: 04/20/2000)
504 ORDER by Honorable Lawrence K. Karlton ORDERING status conference CONTINUED for 5/22/00 at the conclusion of the court's regularly scheduled law and motion calendar (cc: all counsel) (as) (Entered: 04/20/2000)
505 OPPOSITION by plaintiffs to motion for protective order y defendants [494−1] (ndd) (Entered: 05/08/2000)
506 DECLARATION of Betsy Ginsberg in support of plts' Opposition to dfts' motion for a protective order [505−1] (ndd) (Entered: 05/08/2000)
507 OPPOSITION by plaintiffs to dfts' motion to dismiss case [492−1] (ndd) (Entered: 05/08/2000)
508 DECLARATION of Sara Norman in support of plts' Opposition to dfts' motion to dismiss [507−1] (ndd) (Entered: 05/08/2000)
509 ORDER by Honorable Lawrence K. Karlton ORDERING that dfts' motion to dismiss [492−1] CONTINUED to 10:00 5/30/00 (cc: all counsel) (ndd) (Entered: 05/11/2000)
510 LETTER to court from counsel for plaintiff requesting that the status conference scheduled for 5/22/00 [504−1] be continued to 5/30/00 (ndd) (Entered: 05/12/2000)
511 REPLY to plts' opposition to dfts' motion to dismiss case [492−1] (pb) (Entered: 05/17/2000)
512 ORDER by Honorable Lawrence K. Karlton ORDERING that the hearing on dft's motion to dismiss [492−1] is ADVANCED to 10:30 5/22/00; the Status Conference will be held directly following oral arguments on the motion to dismiss (cc: all counsel) (ndd) (Entered: 05/18/2000)
513 LETTER to court from counsel for defendants to confirm the court's decision to provide the dfts an extension of time to file a reply to plts' opposition to dfts' motion to dismiss; dfts' reply was filed on 5/17/00 [511−1] (ndd) (Entered: 05/22/2000)
514 MINUTES before Honorable Lawrence K. Karlton: letter briefs to be filed: opening brief 5 days re class wide H/C; Opposition 5 days thereafter; motion for protective order or other appropriate stay by defendants [494−1] and motion to dismiss case by defendant [492−1] SUBMITTED; a further status conference SET for 1:30 7/31/00 (ndd) (Entered: 05/23/2000)
515 LETTER to court from counsel for plaintiff re motion to dismiss (hk) (Entered: 06/02/2000)
516 STATUS ORDER by Honorable Lawrence K. Karlton ORDERING scheduling conference for 1:30 7/31/00 All discovery disputes, including those concerning the enforcement of the magistrate judg's prior orders are to be directed to the undersigned for determination; plaintiffs' motion to amend the complaint to add claims under the Americans with Disabilities Act and Section 504 of the Rehabilitation Act of 1973 is denied; plaintiffs' request to exchange expert declarations in lieu of expert reports is denied; defendants' motion for a protective order to stay all pending discovery is denied; a further status conference is set for 7/31/00 at 1:30 (cc: all counsel) (old) (Entered: 06/06/2000)
517 TRANSCRIPT of 5/22/00 hearing on oral argument on dfts motion to dismiss by C/R Bodene (mll) (Entered: 06/07/2000)
LODGED stipulated protective order (old) (Entered: 06/30/2000)
LODGED Joint Stipulation and Order extending time for plts' identification of exemplary plts and continuing status conference date by plaintiffs (ndd) (Entered:

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 70 of 168

07/11/2000
07/11/2000
08/21/2000 08/24/2000 08/24/2000 08/24/2000 08/24/2000 08/24/2000 08/28/2000 08/28/2000 08/28/2000 08/28/2000 08/30/2000 08/31/2000 08/31/2000 08/31/2000 08/31/2000 08/31/2000 08/31/2000

07/05/2000)
518 STIPULATION AND ORDER by Honorable Lawrence K. Karlton pltfs shall have an additional 60 days up to 9/8/00 to identify the exemplary pltfs; scheduling conference CONTINUTED for 11:30 9/25/00 (cc: all counsel) (ljr) (Entered: 07/11/2000)
519 STIPULATION AND PROTECTIVE ORDER by Honorable Lawrence K. Karlton GRANTED; this stipulated protective order shall be binding on the parties as of the date it is fully executed regardless of whether or not it has been entered by the court as of that time; the provisions of this order shall remain in full force and effect until further order of the court (cc: all counsel) (ljr) (Entered: 07/11/2000)
520 LETTER to LKK from attorney general requesting case be dismissed for lack of jurisdiction (old) (Entered: 08/23/2000)
521 PROOF OF SERVICE of joint stip, declaration and exhibits by pltfs (hk) (Entered: 08/24/2000)
522 EX PARTE REQUEST for clarification of the status of discovery (ndd) (Entered: 08/25/2000)
523 STIPULATION re discovery disagreement (ds) (Entered: 08/25/2000)
524 EXHIBITS by Steven G Williams, Alfred Yancy, Jerry Valdivia regarding stipulation re discovery [523−1] (ds) (Entered: 08/25/2000)
525 DECLARATION of Jennifer L Jonak in support of stipulation re discovery disagreement [523−1] (ds) (Entered: 08/25/2000)
526 EX PARTE application for extension of time for plaintiffs' identification of exemplary plaintiffs Steven G Williams, Vincent Cervantes, Alfred Yancy, Hossie Welch, Jerry Valdivia (dd) (Entered: 08/29/2000)
527 DECLARATION of Stephanie L Thomases in support of plaintiffs' ex parte application for extension of time for identification of exemplary plaintiffs [526−1] (dd) (Entered: 08/29/2000)
LODGED Proposed Order granting ex parte application for extension of time for identification of exemplary plaintiffs Steven G Williams, Vincent Cervantes, Alfred Yancy, Hossie Welch and Jerry Valdivia (dd) (Entered: 08/29/2000)
528 PROOF OF SERVICE by plaintiffs of Ex Parte application for extension of time for identification of exemplary plaintiffs and supporting documents [526−1] (dd) Modified on 08/30/2000 (Entered: 08/29/2000)
529 LETTER to court from counsel for plaintiffs in response to dft's ex parte request for clarification of the status of discovery dated 8/24/00 (old) (Entered: 08/31/2000)
530 RESPONSE (Opposition) by defendants to pltf's ex parte appl for extension of time [526−1] (ds) (Entered: 09/01/2000)
531 MOTION to compel responses to request for production of documents by plaintiff , for an order that dfts have waived all objections by plaintiff , and for sanctions by plaintiff Motion Hearing Set for 10:00 9/14/00 (ds) (Entered: 09/01/2000)
532 NOTICE by plaintiff regarding motion to compel [531−1], motion for order that dfts have waived objections [531−2], and for sanctions [531−3] (ds) (Entered: 09/01/2000)
533 DECLARATION of Stephanie L Thomases in support of motion to compel [531−1], for order that dfts have waived objections [531−2], for sanctions [531−3] (ds) (Entered: 09/01/2000)
534 PROOF OF SERVICE by plaintiff of motion to compel, motion for order that dfts have waived objections, motion for sanctions (ds) (Entered: 09/01/2000)
LODGED Proposed Order by plaintiff granting motion to compel, motion for order that dfts have waived objections, motion for sanctions (ds) (Entered: 09/01/2000)

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 71 of 168

09/05/2000 09/05/2000 09/05/2000 09/05/2000
09/05/2000 09/08/2000 09/08/2000
09/08/2000 09/11/2000
09/11/2000 09/11/2000
09/13/2000 09/13/2000 09/13/2000 09/18/2000
09/20/2000

535 DECLARATION of Stephanie L Thomases in support of motion to compel responses to request for production of documents, for order that dfts have waived objections and for sanctions [531−1] (ds) (Entered: 09/06/2000)
536 PROOF OF SERVICE by plaintiffs of motion to compel responses to request for production of documents, for order that dfts have waived all objections, and for sanctions, and related documents (ds) (Entered: 09/06/2000)
LODGED Proposed order granting motion to compel responses to plfts' 9th set of request for production of documents; finding that defendants have waived all objections; and granding sanctions by plaintiff (old) (Entered: 09/06/2000)
537 NOTICE OF MOTION AND MOTION to compel responses to pltfs' 9th set of requests for production of documents; for an order that dfts have waived all objections; and for sanctions by plaintiffs ; motion to compel responses to request for production of documents by plaintiff TO BE HEARD by Honorable Lawrence K. Karlton; Motion Hearing Set For 10:00 9/18/00 (old) (Entered: 09/06/2000)
538 NOTICE of Motion to Compel by plaintiff regarding 9th set of requests for production of documents [537−1] (old) (Entered: 09/06/2000)
LODGED Document proposed order granting ex parte application by pltfs (not to be signed) (ljr) (Entered: 09/08/2000)
539 ORDER by Honorable Lawrence K. Karlton ORDERING in light of the 9/18/00 hearing concerning the parties discovery dispute the court hereby VACATES the 9/8/00 deadline for pltfs to identify exemplary pltfs; this deadline will be reset at the 9/18/00 hearing [526−1] (cc: all counsel) (ljr) (Entered: 09/08/2000)
540 ORDER by Honorable Lawrence K. Karlton ORDERING dfts' motion to reconsider is GRANTED and, upon reconsideration dfts' motion to dismiss is DENIED [492−1] (cc: all counsel) (ljr) (Entered: 09/08/2000)
541 ORDER by Magistrate Judge Gregory G. Hollows ORDERING re motion to compel responses to request for production of documents by plaintiff [531−1] HEARING RESET FOR 10:00 9/18/00 (cc: all counsel) (old) (Entered: 09/11/2000)
542 RESPONSE (OPPOSITION) by defendantto motion to compel responses to pltfs' 9th set of requests for production of documents; for an order that dfts have waived all objections; and for sanctions by plaintiffs [537−1] (old) (Entered: 09/12/2000)
543 RESPONSE (OPPOSITION) by defendant California State to motion to compel responses to pltfs' 10th set of requests for production of documents; for an order that dfts have waived all objections; and for sanctions by plaintiffs [537−1] (old) (Entered: 09/12/2000)
544 BRIEF by dfts in support of motion to compel [531−1] (hk) (Entered: 09/14/2000)
545 BRIEF by Steven G Williams in support of motion to compel responses to pltf's tenth set of requests [531−1] (hk) (Entered: 09/14/2000)
546 DECLARATION of Jennifer L. Jonak in support of pltf's brief [545−1] (hk) (Entered: 09/14/2000)
547 MINUTES of Court on Hearing before Honorable Lawrence K. Karlton motion to compel responses to pltfs' 9th set of requests for production of documents; for an order that have waived all objections; and for sanctions by plaintiffs [537−1] GRANTED C/R Cathy Bodene (old) (Entered: 09/19/2000)
548 ORDER by Honorable Lawrence K. Karlton dfts shall notify pltfs of the cost involved in the retention of audiotapes within 30 days of the effective date of this order; pltfs shall notify dfts within 15 days thereafter if they are (un)willing to compensate dfts for the cost of retaining the audiotapes; dfts are to respond to pltfs fifth set of interrogatories and ninth and tenth set of requests for the production of documents within 45 days of the effective date of this order; the court will reset the pltfs' deadline to reveal exemplar pltfs at the 9/25/00 status conf (cc: all counsel) (ljr) (Entered: 09/20/2000)

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 72 of 168

09/21/2000 09/21/2000 09/25/2000 09/27/2000 10/03/2000 10/31/2000
10/31/2000 11/02/2000
11/08/2000 11/08/2000 11/13/2000 11/21/2000
11/22/2000 12/04/2000 12/04/2000 12/04/2000 12/04/2000 12/04/2000

549 STATUS CONFERENCE STATEMENT by defendant (old) (Entered: 09/22/2000)
550 STATUS CONFERENCE REPORT by plaintiffs (old) (Entered: 09/22/2000)
551 MINUTES of Status Conference before Honorable Lawrence K. Karlton further Status conference SET for 10:00 11/14/00 (ndd) (Entered: 09/26/2000)
552 ORDER by Honorable Lawrence K. Karlton ORDERING a further Status conference SET for 10:00 11/14/00 (cc: all counsel) (ndd) (Entered: 09/27/2000)
553 TRANSCRIPT of 9/18/00 hearing on Oral Argument on plts' motion to compel responses, waive objections and impose sanctions; by C/R C Bodene (ndd) (Entered: 10/04/2000)
554 NOTICE OF MOTION AND MOTION for an extension of time to respond to discovery documents by defendants ; Memorandum of Points and Authorities in support; motion TO BE HEARD by Honorable Lawrence K. Karlton ; Motion Hearing Set For 12/11/00 (ndd) (Entered: 11/01/2000)
555 DECLARATION of William V Cashdollar in support of Motion for an extension of time to respond to discovery documents [554−1] (ndd) (Entered: 11/01/2000)
556 AMENDED NOTICE OF MOTION AND MOTION (terminating original motion 554 ) to extension of time to respond to discovery documents and Memorandum of Points and Authorities in support thereof by defendant California State Motion Hearing Set for 10:00 12/11/00 (old) (Entered: 11/03/2000)
557 STATUS REPORT by plaintiffs (ndd) (Entered: 11/09/2000)
558 DECLARATION of Stephanie L Thomases in support of plts' Status Conference Statement [557−1] (ndd) (Entered: 11/09/2000)
559 STATUS REPORT by defendants Cal A Terhune, Davis, Presley, Stevens, Nielsen, Bentley, Gianquinto, Gillis, Guaderrama, Koenig, Van Court, Connolly and McNair (hk) (Entered: 11/14/2000)
560 STATUS (PRETRIAL SCHEDULING) ORDER by Honorable Lawrence K. Karlton ORDERING that dfts' moption to extend time to respond to plts' request for production of document to 12/4/00 is GRANTED; dfts are to produce medical files in accordance with plts' request within 30 days of the effective date of this order; within 30 days of receipt of the medical files, plts shall designate individual exemplar plts not to exceed 10 per claim and shall succinctly outline what claim each individual pertains to, and why each individual is a proper examplar of the claim; plts shall file objections to dfts' request for reimbursement of costs associated with the retention of audio tape within 14 days of the effective date of this order; dfts shall respond 10 days thereafter; the court will take the matter under submission; the bill for the Teale Data Center from 6/3/99 of $1,522.67 shall be paid by the dfts subject, of course, to recoupment as a cost if they prevail at trail; a further status conference is SET for 11:30 2/4/01 (cc: all counsel) (ndd) (Entered: 11/21/2000)
561 TRANSCRIPT of 11/14/00 hearing on motion to produce by C/R C Bodene (as) (Entered: 11/27/2000)
562 OBJECTIONS by plaintiffs to dfts' request for reimbursement of costs associated with retention of audiotapes (as) (Entered: 12/05/2000)
563 DECLARATION of Laura J Zuckerman in support of pltf's objections to dfts' request for reimbursement of costs associated with retention of audiotapes [562−1] (as) (Entered: 12/05/2000)
564 PROOF OF SERVICE by plaintiffs of [563−1], [562−1] (as) (Entered: 12/05/2000)
LODGED order re dfts' request for reimbursement of costs assocated with retention of audiotapes by plaintiffs (as) (Entered: 12/05/2000)
LODGED Document Proposed Order re dfts' Request for reimbursement of costs associated with retention of audiotapes lodged [0−0] VACATED; not to be signed (ndd) (Entered: 12/12/2000)

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 73 of 168

12/07/2000
12/13/2000
01/29/2001 01/29/2001 01/31/2001 02/05/2001 02/05/2001 02/07/2001 03/13/2001 03/14/2001
03/19/2001 03/21/2001
04/04/2001 04/06/2001 04/12/2001 04/20/2001
04/20/2001

565 REPLY by dfts Cal A Terhune, James W Nielsen, Carol J Bentley, Thomas J Giaquinto, John W Gillis, Manuel C Guaderrama, Ron E Koenig, Arthur F Van Court, Michael Connolly, Edward McNair, Michael Connolly to pltfs' objections to dfts' request for reimbursement of costs associated w/rentention of audiotapes [562−1] (as) (Entered: 12/08/2000)
566 ORDER by Honorable Lawrence K. Karlton ORDERING that within 30 days of the effective date of this order, plts shall provide dfts with the names of up to 300 class members whose parole revocation hearing tapees they wish dfts to preserve; upon receipt of plts' list of name, the dfts shall retain only those tape and may erase and/or discard any other tapes in accordance with their procedures; plts shall reimburse dfts $4,094.04 for the retention of all the parole revocation audio tapes from 4/99 until 12/2000; plts shall reimburse dfts for the reasonable costs of tape storage commencing in 1/01 in the amount of #3.86 payable at the end of each month (cc: all counsel) (ndd) (Entered: 12/13/2000)
567 ORDER by Honorable Lawrence K. Karlton ORDERING status conference is continued to 11:30 2/5/01 (cc: all counsel) (ndd) (Entered: 01/29/2001)
568 STATUS REPORT by plaintiffs (ndd) (Entered: 01/30/2001)
569 STATUS REPORT by defendants (ndd) (Entered: 02/01/2001)
570 MINUTES of Status Conference before Honorable Lawrence K. Karlton a further status conference SET for 10:30 3/19/01 (ndd) (Entered: 02/06/2001)
571 List of Exemplar plts by plaintiffs (ndd) (Entered: 02/06/2001)
572 ORDER by Honorable Lawrence K. Karlton ORDERING a further status conference SET for 10:30 3/19/01 (cc: all counsel) (ndd) (Entered: 02/07/2001)
573 STATUS REPORT by plaintiffs (ndd) (Entered: 03/14/2001)
574 STATUS REPORT by dfts Thomas J Giaquinto, John W Gillis, Manuel Guaderrama, Ron E Koenig, Arthur F Van Court, Carol J Bentley, Edward McNair, Michael Connolly, Cal A Terhune, James W Nielsen (ndd) (Entered: 03/15/2001)
575 MINUTES of Status Conference before Honorable Lawrence K. Karlton: court order to follow (ndd) (Entered: 03/20/2001)
576 STATUS (PRETRIAL SCHEDULING) ORDER by Honorable Lawrence K. Karlton ORDERING a further conference is SET for 4:00 5/14/01 ; the parties are to file status reports not later than 5/7/01 (cc: all counsel) (ndd) (Entered: 03/21/2001)
LODGED Ex Parte Motion by dfts to repay plaintiffs' monies paid dfts under court order; proposed order (old) (Entered: 04/05/2001)
577 NOTICE OF MOTION AND MOTION for leave to exceed Rule 33 of FRCP interrogatory cap of 25 questions by defendants ; Motion Hearing Set For 5/29/01 10:00am before Judge Karlton in Courtroom 4 (old) (Entered: 04/08/2001)
578 ORDER by Honorable Lawrence K. Karlton ORDERING that within 60 days, dfts shall return $2,097.03 to plts; no interest shall be charged (cc: all counsel) (ndd) (Entered: 04/12/2001)
579 NOTICE OF MOTION AND MOTION to compel by plaintiffs Steven G Williams, Vincent Cervantes, Alfred Yancy, Hossie Welch, and Jerry Valdivia ; Motion Hearing Set For 5/14/01 at 10:00am before Judge Lawrence K Karlton in Courtroom 4 (bd) Modified on 04/23/2001 (Entered: 04/23/2001)
LODGED joint stipulation requesting an order waiving rules limiting the number of interrogatories that may be propounded by defendants Joe Sandoval, Pete Wilson, California State, Michael Connolly, Tom Maddock, Gregory W Harding, Eddie Myers, Marisela Montes, James W Nielsen, Steven G Baker, Carol J Bentley, Thomas J Giaquinto, John W Gillis, Manuel C Guaderrama, Ron E Koenig, Arthur F Van Court, Ted Rich, Tom Maddock, Quintin L Villanueva, Cal A Terhune, Michael Connolly, and Edward McNair (bd) Modified on 04/23/2001

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 74 of 168

05/02/2001
05/07/2001 05/07/2001
05/09/2001
05/14/2001 05/22/2001 06/06/2001 06/06/2001 06/06/2001 06/06/2001 06/06/2001 06/06/2001 06/06/2001 06/06/2001 06/06/2001 06/12/2001 06/14/2001 06/20/2001
06/20/2001

(Entered: 04/23/2001)
580 STIPULATION AND ORDER by Honorable Lawrence K. Karlton ORDERED that the limit as to the number of interrogatories that the parties may propound as found in Rule 33 is expressly waived for this litigation; the parties retain the right to object to any itnerrogatory or response to said interrogatory, should they be entitled to do so under the FRCP [577−1] (cc: all counsel) (ndd) (Entered: 05/02/2001)
581 STATUS CONFERENCE STATEMENT by plaintiffs (ar) (Entered: 05/08/2001)
582 STATUS REPORT by defendants Pete Wilson, California State, Michael Connolly, Marisela Montes, James W Nielsen, Thomas J Giaquinto, Carol J Bentley, John W Gillis, Manuel C Guaderrama, Ron E Koenig, Arthur F Van Court, Quintin L Villanueva, Cal A Terhune, Edward McNair prepared for 5/14/01 hearing (mm1) (Entered: 05/08/2001)
583 AMENDED NOTICE OF MOTION AND MOTION ( terminating original motion 579 ) to compel dfts to produce certain documents by plaintiffs motion TO BE HEARD by Honorable Lawrence K. Karlton ; Motion Hearing Set for 6/11/01 (ndd) (Entered: 05/09/2001)
584 MINUTES of 5/14/01 before Honorable Lawrence K. Karlton scheduling conference RESET for 1:30 6/25/01 ; court order to follow (as) (Entered: 05/15/2001)
585 STATUS (PRETRIAL SCHEDULING: ORDER Honorable Lawrence K. Karlton ; status conference is set for 6/25/01 at 1:30pm in Chambers ; (cc: all counsel) (bd) Modified on 05/22/2001 (Entered: 05/22/2001)
586 SEALED document ( ) (hk) (Entered: 06/06/2001)
587 SEALED document ( ) (hk) (Entered: 06/06/2001)
588 SEALED document ( ) (hk) (Entered: 06/06/2001)
589 JOINT STIPULATION regarding discovery disagreement [583−1] (ndd) (Entered: 06/07/2001)
590 DECLARATION of Sonya A Royston in support of Joint Stipulation regarding discovery disagreement [589−1] (ndd) (Entered: 06/07/2001)
591 LETTER to court from counsel for plaintiffs enclosed the Joint Stipulation regarding discovery disagreement [589−1] and Declaration [590−1] (ndd) (Entered: 06/07/2001)
LODGED order re permission to lodge under seal (hk) (Entered: 06/07/2001)
592 RESPONSE by defendant Michael Connolly to motion to compel dfts to produce certain documents by plaintiffs [583−1] (hk) (Entered: 06/07/2001)
593 EXHIBITS by plaintiff Steven G Williams regarding [592−1] (hk) (Entered: 06/07/2001)
594 STIPULATION extending pltfs' time to 7/20/01 to respond to dfts' request for admission (kf) (Entered: 06/13/2001)
595 ORDER by Honorable Lawrence K. Karlton ORDERING dfts have permission to lodge under seal disputed documents for purposes of in camera review; (cc: all counsel) (bd) (Entered: 06/14/2001)
596 ORDER by Honorable Lawrence K. Karlton ORDERING that within 10 days of the effective date of this order, dfts are to amend their responses to the plts' request for production to include only good faith objections over documents squarely qualifying for privilege defenses; failure to do so will result in the court granting plts' motion to compel [583−1]; the matter is HELD IN ABEYANCE pending the receipt of dfts' amended objections (cc: all counsel) (old) (Entered: 06/20/2001)
597 STATUS REPORT by dfts Davis, Michael Connolly, Marisela Montes, James W Nielsen, Thomas J Giaquinto, Carol J Bentley, John W Gillis, Manuel C

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 75 of 168

06/20/2001 06/25/2001 07/10/2001 08/20/2001
08/20/2001 12/14/2001 12/14/2001 01/02/2002 01/03/2002
01/11/2002
01/14/2002 01/14/2002 01/14/2002 01/14/2002 01/14/2002 01/14/2002 01/14/2002 01/14/2002 01/14/2002

Guaderrama, Ron E Koenig, Quintin L Villanueva, Cal A Terhune, Michael Connolly (bd) (Entered: 06/21/2001)
598 STATUS CONFERENCE STATEMENT by plaintiff (kf) (Entered: 06/21/2001)
599 MINUTES of 6/25/01 before Honorable Lawrence K. Karlton scheduling conference held on 6/25/01 ; stipulation to follow (as) (Entered: 06/26/2001)
LODGED joint stip and proposed pretrial scheduling order (ak) (Entered: 07/11/2001)
600 JOINT STIPULATION AND PRETRIAL SCHEDULING ORDER by Honorable Lawrence K. Karlton ; all fact discovery shall be completed by 11/1/01; all motions to compel shall be filed by 2/1/02; all expert reports required pursuant to FRCP Rule 26(a)(2)(B) shall be exchanged in accordance with the provisions of Rule 26; all expert discovery shall be completed by 3/1/02; all dispositive motions shall be heard by 5/1/02; pretrial conference set for 3:30 8/5/02; designation of expert witnesses set for 12/14/01 (cc: all counsel) (bd) (Entered: 08/20/2001)
601 ORDER by Honorable Lawrence K. Karlton ORDERING motion to compel dfts to produce certain documents by plaintiffs [583−1] WITHDRAWN (cc: all counsel) (bd) (Entered: 08/20/2001)
602 DESIGNATION of expert witnesses by defendants Edward McNair, Gray Davis, Daly, Angele, Presley, Bordonaro, Alameida, Stephens, Munoz, Granlund, Moore and Lawin (daw) (Entered: 12/17/2001)
603 DESIGNATION of expert witnesses by plaintiffs' (mdk) (Entered: 12/17/2001)
604 REQUEST to file Amicus Curae Brief by Bruce Senator (mm1) (Entered: 01/03/2002)
LODGED joint stipulation and proposed order modifying pretrial scheduling order by pltfs Steven G Williams, Vincent Cervantes, Alfred Yancy, Hossie Welch, Jerry Valdivia, and dfts Cal A Terhune, Michael Connolly, Edward McNair et al (ljr) (Entered: 01/03/2002)
605 STATUS (PRETRIAL SCHEDULING) ORDER by Honorable Lawrence K. Karlton ORDERING trial set for 10:00 1/28/03 pretrial conference set for 3:30 10/21/02 ; discovery ddl set for 4/1/02 motion filing ddl set for 7/1/02 (cc: all counsel) (ndd) (Entered: 01/11/2002)
606 NOTICE OF MOTION AND MOTION for partial summary judgment by plaintiffs ; motion TO BE HEARD by Honorable Lawrence K. Karlton; Motion Hearing Set For 10:00 2/11/02 (ak) Modified on 01/15/2002 (Entered: 01/15/2002)
607 MEMORANDUM OF POINTS AND AUTHORITIES by plaintiffs in SUPPORT of motion for partial summary judgment by plaintiffs [606−1] (ak) (Entered: 01/15/2002)
608 REQUEST for Judicial Notice in SUPPORT of Motion for Partial Summary Judgment by plaintiffs (mm1) (Entered: 01/15/2002)
609 STATEMENT by plaintiffs of Undisputed Facts in SUPPORT of Motion for Partial Summary Judgment [606−1] (mm1) (Entered: 01/15/2002)
610 DECLARATION of Karen Kennard in SUPPORT of Motion for Partial Summary Judgment [606−1] (mm1) (Entered: 01/15/2002)
LODGED (Proposed) Order granting Motion for Partial Summary Judgment by plaintiffs − Unitary Hearing System (mm1) (Entered: 01/15/2002)
LODGED (Proposed) Order granting Motion for Partial Summary Judgment by plaintiffs − timing of revocation hearings (mm1) (Entered: 01/15/2002)
611 NOTICE of Lodging of 30(b)(6) deposition transcripts by plaintiffs (see document list) (mm1) Modified on 01/15/2002 (Entered: 01/15/2002)
612 PROOF OF SERVICE by plaintiffs of [606−1], [611−1], [610−1], [609−1], [608−1], [607−1] (mm1) (Entered: 01/15/2002)

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 76 of 168

01/17/2002 01/23/2002
01/23/2002 01/23/2002 01/30/2002
02/21/2002
02/21/2002 02/21/2002 02/22/2002
02/22/2002 02/25/2002 02/26/2002 02/27/2002 02/27/2002

LODGED Document: order granting pltf's motion for partial summary judgment lodged on 1/14/02 (NOT TO BE SIGNED PER JUDGE) (hk) (Entered: 01/17/2002)
LODGED ex parte notice and motion for an extension of time to file their opposition to pltfs' motion for summary judgment by dfts − Daly, − Angele, − Presley, Edward McNair, − Bordonaro, Gray Davis, − Alameida, − Stephens, − Munoz, − Granlund, − Lawin, − Moore, and Hossie Welch (bd) (Entered: 01/24/2002)
613 JOINT REQUEST by defendants and plaintiffs for clarification of 1/11/02 status (pretrial scheduling) order (nac) (Entered: 01/24/2002)
LODGED Document: Dfts' Ex Parte Notice and Motion for an extension of tiem to file their opposition lodged on 1/23/02 (NOT TO BE SIGNED PER JUDGE) (ndd) (Entered: 01/30/2002)
614 ORDER by Honorable Lawrence K. Karlton ORDERING that the court's status (pretrial scheduling) order [605−1] is AMENDED as follows: ; discovery ddl set for 5/1/02 ; motion for partial summary judgment by plaintiffs [606−1] HEARING CONTINUED to 10:00 4/15/02; dfts shall file their opposition to plts' motion no later than 4/1/02; plts shall file its reply no more than 5 days thereafter (cc: all counsel) (ndd) (Entered: 01/30/2002)
615 NOTICE of MOTION and MOTION for sanctions re pltfs refusal to respond to two discovery requests by dfts Daly, Angele, Presley, McNair, Bordonaro, Gray Davis, Alameida, Stephens, Munoz, Granlund, Lawin, and Moore Memorandum of oints and Authorities; Exhibits A−E; Motion TO BE HEARD by Honorable Lawrence K. Karlton; Motion Hearing Set For 10:00 02/25/02 (nac) (Entered: 02/22/2002)
616 DECLARATION (labeled as Certificate) of William V Cashdollar in support of application for order shortening time (nac) (Entered: 02/22/2002)
LODGED ex parte application for order shortening time; Proposed order by dfts Daly, Angele, Presley, McNair, Bordonaro, Davis, Alameida, Stephens, Munoz, Granlund, Lawin, Moore and Welch (nac) (Entered: 02/22/2002)
617 ORDER by Honorable Lawrence K. Karlton ORDERING that dfts' ex parte application for order shortening time is DENIED; dfts' motion for discovery sanctions TO BE REFERRED to Magistrate Judge Gregory G. Hollows; dfts shall notice a hearing for their motion in accordance with LR (cc: all counsel) (ndd) (Entered: 02/22/2002)
LODGED joint stipulation and proposed order modifying 1/29/02 order re: partial summary judgment briefing schedule by plaintiffs and defendants (nac) (Entered: 02/25/2002)
619 LETTER to court from counsel for defendants and plaintiffs regarding an agreed briefing schedule pertaining to pltfs motion for partial summary judgment [614−2] (nac) (Entered: 02/26/2002)
618 STIPULATION AND ORDER by Honorable Lawrence K. Karlton ORDERED that dfts shall file their opposition no later than 3/15/02; plts' reply due 4/8/02; the hearing on the motion for partial summary judgment by plaintiffs [606−1] SET FOR 10:00 4/15/02 (cc: all counsel) (ndd) (Entered: 02/26/2002)
620 NOTICE of certificate in support of application for order shortening time to hear motion for sanctions before United States Magistrate Judge by dfts Edward McNair, Gray Davis, Daly, Angele, Presley, Bordonaro, Alameida, Stephens, Munoz, Granlund, Lawin, Moore, and Hossie Welch (nac) (Entered: 02/28/2002)
LODGED ex parte application to United States Magistrate Judge for order shortening time; and proposed order by dfts Edward McNair, Gray Davis, Daly, Angele, Presley, Bordonaro, Alameida, Stephens, Munoz, Granlund, Lawin, Moore, and Hossie Welch (nac) (Entered: 02/28/2002)

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 77 of 168

03/01/2002
03/01/2002 03/05/2002 03/08/2002 03/08/2002 03/08/2002 03/14/2002
03/15/2002
03/15/2002 03/15/2002
03/15/2002 03/18/2002 03/22/2002 03/26/2002 03/29/2002 03/29/2002 04/01/2002

621 ORDER by Gregory G Hollows Magistrate Judge ORDERING 2/27/02 application for an order shortening time to to hear motion imposing sanctions for pltfs' failure to respond to discovery is GRANTED in part and DENIED in part; motion for sanctions [615−1] HEARING RESET FOR 10:00 3/14/02; on 3/5/02, dfts shall provide, by 5:00pm, in the offices of pltfs, dfts' portion of the joint stipulation, including exhibits; on 3/8/02, joint stipulation to be filed by pltfs (cc: all counsel) (bd) (Entered: 03/01/2002)
622 REPLY by defendants to pltfs' ex parte letter (notice) brief [620−1] (ak) (Entered: 03/04/2002)
LODGED Document ex parte application to US Magistrate Judge for order shortening time; Not to be signed (nac) (Entered: 03/05/2002)
623 JOINT STIPULATION regarding discovery dispute [621−1] (hk) (Entered: 03/11/2002)
624 DECLARATION of Sonya A Royston in support of Joint Stipulation re Discovery Dispute [623−1] (ndd) (Entered: 03/11/2002)
625 PROOF OF SERVICE by plaintiffs of [624−1] (ndd) (Entered: 03/11/2002)
626 MINUTES before Magistrate Judge Gregory G. Hollows motion for sanctions re pltfs refusal to respond to two discovery requests by dfts Daly, Angele, Presley, McNair, Bordonaro, Gray Davis, Alameida, Stephens, Munoz, Granlund, Lawin, and Moore [615−1] DENIED; dft's reports are due on or before 4/15/02; Mr Haney's report is due 4/22/02; pltf's remaining reports are due 4/8/02; the court will issue an order (ljr) (Entered: 03/14/2002)
627 RESPONSE by dfts Edward McNair, Gray Davis, − Daly, − Angele, − Presley, − Bordonaro, − Alameida, − Stephens, − Munoz, − Granlund, − Lawin, − Moore to motion for partial summary judgment by plaintiffs [606−1] (bd) (Entered: 03/18/2002)
628 STATEMENT of disputed facts by dfts Edward McNair, Gray Davis, − Daly, − Angele, − Presley, − Bordonaro, − Alameida, − Stephens, − Munoz, − Granlund, − Lawin, and − Moore (bd) (Entered: 03/18/2002)
629 STATEMENT of undisputed facts by dfts Edward McNair, Gray Davis, − Daly, − Angele, − Presley, − Bordonaro, − Alameida, − Stephens, − Munoz, − Granlund, − Lawin, and − Moore in support of opposition to motion for summary judgment [627−1] (bd) (Entered: 03/18/2002)
630 DECLARATION of Michael G Lee in support of opposition to motion for summary judgment [627−1] (bd) (Entered: 03/18/2002)
631 SUPPLEMENTAL NOTICE by dfts Daly, Angele, Presley, Bordonaro, Alameida, Stephens, Munoz, Granlund, Lawin, and Moore regarding opposition to motion for summary judgment [627−1] (mdk) (Entered: 03/19/2002)
632 ORDER by Gregory G Hollows Magistrate Judge ORDERING dfts' motion for sanctions and to compel [615−1] is DENIED; see order for further details re service of expert reports (cc: all counsel) (bd) (Entered: 03/22/2002)
LODGED joint stipulation to modify the trial schedule submitted by dfts − Daly, − Angele, − Presley, − Bordonaro, Gray Davis, − Alameida, − Stephens, − Munoz, − Granlund, − Lawin, and − Moore (bd) (Entered: 03/27/2002)
634 MINUTES of status conf hrg before Honorable Lawrence K. Karlton pretrial conference set for 3:00 12/16/02; jury trial set for 10:00 4/1/03 ; estimated days of trial: 16 (hk) (Entered: 04/01/2002)
635 MAIL returned [632−1] addressed to Steven G Williams, Vincent Cervantes (hk) (Entered: 04/01/2002)
633 STIPULATION AND ORDER by Honorable Lawrence K. Karlton pretrial conference reset for 3:30 12/16/02; trial reset for 10:00 4/1/03; pltf designation of expert witnesses reset for 6/10/02; dft designation of expert witnesses reset for 6/17/02; motion filing ddl reset for 9/9/02; discovery ddl reset for 7/1/02 (cc: all

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 78 of 168

04/05/2002
04/05/2002 04/05/2002 04/05/2002 04/08/2002
04/08/2002 04/08/2002 04/08/2002 04/08/2002 04/08/2002 04/08/2002 04/08/2002 04/09/2002 04/09/2002
04/09/2002 04/18/2002 04/23/2002
04/23/2002
04/23/2002 05/02/2002
05/21/2002

counsel) (hk) (Entered: 04/01/2002)
636 REQUEST, entitled "motion", by plaintiff Jerry Valdivia to shorten time of hearing for "motion of class representative Jerry Valdivia to strike prayer for a unitary parole revocation hearing" to 10:00 4/15/02 (bd) (Entered: 04/08/2002)
637 AFFIDAVIT of Jerry Valdivia in support of request to shorten time [636−1] (bd) (Entered: 04/08/2002)
638 AFFIDAVIT of Jerry Valdivia re parole revocation system in CA (bd) Modified on 04/08/2002 (Entered: 04/08/2002)
639 MOTION to strike prayer for a unitary parole revocation hrg by defendant James Gomez Motion Hearing not noticed (hk) (Entered: 04/08/2002)
640 COURT NOTICE: from SJaggard that the motion for partial summary judgment [606−1] HEARING CONTINUED to 10:00 5/6/02 (cc: all counsel) (old) (Entered: 04/09/2002)
641 REPLY MEMORANDUM in support of motion for partial summary judgment by plaintiffs [606−1] (ndd) (Entered: 04/09/2002)
642 RESPONSE to Undisputed Facts [629−1] by plts (ndd) (Entered: 04/09/2002)
643 RESPONSE to dfts' Statement of Disputed Facts [628−1] by plts (ndd) (Entered: 04/09/2002)
644 DECLARATION of Karen Kennard in support of plts' Reply to motion for partial summary judgment [641−1] (ndd) (Entered: 04/09/2002)
645 SECOND REQUEST for Judicial notice by plaintiffs (ndd) (Entered: 04/09/2002)
646 NOTICE of Lodging of Deposition Transcript of Monica H Smith by plaintiffs (ndd) (Entered: 04/09/2002)
647 PROOF OF SERVICE by plaintiffs of [646−1], [645−1], [644−1], [643−1], [642−1], [641−1] (ndd) (Entered: 04/09/2002)
LODGED Brief of CA Attys for Criminal Justice as Amicus Curiae on behalf of plt Class (P/S to Chambers) (ndd) (Entered: 04/10/2002)
648 MOTION by California Attys for criminal justice for permission to appear as amicus curiae on behalf of pltf class of parolees motion TO BE HEARD by Honorable Lawrence K. Karlton; Motion Hearing not noticed (hk) (Entered: 04/10/2002)
649 AFFIDAVIT of John Philipsborn in support of motion [648−1] (hk) (Entered: 04/10/2002)
650 REQUEST to Withdraw CACJ Amicus Brief by CA Attorneys for Criminal Justice (mm1) (Entered: 04/19/2002)
651 ORDER by Honorable Lawrence K. Karlton ORDERING the court hereby GRANTS the CA Attoryes for Criminal Justice's motion for permission to appear as amicus curiae on behalf of pltf class of parolees [648−1] and their accompanying brief is ordered filed (cc: all counsel) (ndd) (Entered: 04/23/2002)
652 ORDER by Honorable Lawrence K. Karlton ORDERING that the court hereby DENIES Valdivia's motion for an order shortening time [636−1] (cc: all counsel) (ndd) (Entered: 04/23/2002)
653 AMICUS BRIEF by CA Atty for Criminal regarding plts' Motion for summary judgment [606−1] (ndd) (Entered: 04/23/2002)
654 COURT NOTICE from CRD S Jaggard: motion for partial summary judgment by plaintiffs [606−1] HEARING RESCHEDULED FOR 10:00 5/20/02 (cc: all counsel) (mdk) (Entered: 05/03/2002)
655 NOTICE of withdrawal of expert witness Elliott Stevenson by dfts − Daly, − Angele, − Presley, − Bordonaro, − Alameida, Gray Davis, − Stephens, − Munoz, −

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 79 of 168

06/03/2002
06/03/2002 06/03/2002 06/03/2002 06/03/2002 06/03/2002 06/10/2002 06/11/2002
06/13/2002 06/14/2002
07/02/2002 07/05/2002 07/11/2002
07/11/2002 07/12/2002

Granlund, − Lawin, − Moore, and Hossie Welch (bd) (Entered: 05/22/2002)
656 NOTICE of MOTION and MOTION to compel access for expert witnesses to view new parole revocation procedures by pltfs motion TO BE HEARD by Honorable Lawrence K. Karlton; Motion Hearing Set For 10:00 06/10/02 (nac) (Entered: 06/04/2002)
657 PROPOSED JOINT STIPULATION re discovery dispute by pltfs (nac) (Entered: 06/04/2002)
658 DECLARATION of Michael W Bien in support of proposed joint stipulation regarding discovery dispute [657−1] (nac) (Entered: 06/04/2002)
659 DECLARATION of Ana E Ayala in support of proposed joint stipulation regarding discovery dispute [657−1] (nac) (Entered: 06/04/2002)
660 AFFIDAVIT of Ana E Ayala in support of proposed joint stipulation regarding discovery dispute [657−1] (nac) (Entered: 06/04/2002)
661 PROOF OF SERVICE by pltfs of [660−1], [659−1], [658−1], [657−1], [656−1] (nac) (Entered: 06/04/2002)
663 MINUTES before Honorable Lawrence K. Karlton motion for partial summary judgment by plaintiffs [606−1] SUBMITTED C/R C Bodene (ndd) (Entered: 06/11/2002)
662 ORDER by Honorable Lawrence K. Karlton ORDERING plts will re−file their motion to compel access for expert witnesses to view new parole revocation procedures; if the court grants plts' motion, the parties will schedule observations of the new parole revocation procedures at a mutually convenient date and time to be determined by stipulation or order of the court when the new procedures are in reasonably final form; any expert who observes the new procedures and who intends to offer any observations at trial regarding the new procedures will promptly supplement his or her expert report, and will be subject, at the option of the opposing party, to a supplemental deposition limited to his or her observations and/or opinions pertaining to the new procedures (cc: all counsel) (ndd) (Entered: 06/11/2002)
664 ORDER by Honorable Lawrence K. Karlton ORDERING motion for partial summary judgment by plaintiffs [606−1] GRANTED, (cc: all counsel) (ndd) (Entered: 06/13/2002)
665 NOTICE of MOTION and MOTION to compel access for expert witnesses to view new parole revocation procedures by pltfs motion TO BE HEARD by Honorable Lawrence K. Karlton; Motion Hearing Set For 10:00 08/12/02 (nac) (Entered: 06/17/2002)
LODGED joint stip re resetting deposition of dfts' expert witness Dr William Eggington (crf) (Entered: 07/02/2002)
666 NOTICE of change of law firm name to Bingham McCutchen LLP by plaintiff (hk) (Entered: 07/08/2002)
667 ORDER by Honorable Lawrence K. Karlton ORDERING that the deposition of dfts' expert witness Dr William Eggington be RE−SET to 10:00 8/27/02; Dr. Eggington's Rule 26 report w/ documents and notes shall be produced to pltfs by 8/14/02 (cc: all counsel) (crf) (Entered: 07/11/2002)
LODGED Joint Stipulation re Re−Setting Depositions of Drs Haney &Canela−Cacho (mm1) (Entered: 07/12/2002)
668 STIPULATION AND ORDER by Honorable Lawrence K. Karlton ORDERING the depo of Dr Canela−Cacho be continued until 8/30/03, and the database used by Dr Canela−Cacho and his report shall be delivered to pltfs' by 7/12/02; if pltf's are going to rebut Dr Canela−Cacho's opinions through expert testimony of Dr Haney, a copy of Dr Haney's report shall be delivered to dfts by 8/5/02 and Dr Haney shall be deposed on 8/29/02 (cc: all counsel) (mdk) (Entered: 07/12/2002)

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 80 of 168

07/12/2002 07/12/2002 07/26/2002
07/26/2002 07/26/2002 07/26/2002 07/26/2002 08/02/2002 08/02/2002 08/02/2002 08/06/2002 08/09/2002 08/09/2002
08/09/2002 08/12/2002
08/12/2002 08/12/2002
08/12/2002 08/12/2002

669 WITNESS list by dfts Daly, Angele, Presley, McNair, Bordonaro, Davis, Alameida, Stephens, Munoz, Granlund, Lawin, Moore and Welch (ak) (Entered: 07/15/2002)
670 DESIGNATION of expert witnesses by plaintiffs (ndd) (Entered: 07/15/2002)
671 NOTICE OF MOTION AND MOTION for order directing dfts to develop remedial plan by plaintiffs motion TO BE HEARD by Honorable Lawrence K. Karlton; Motion Hearing Set For August 26, 2002 at 10:00 am (hk) (Entered: 07/29/2002)
672 MEMORANDUM OF POINTS AND AUTHORITIES by plaintiff in SUPPORT of motion for order directing dfts to develop remedial plan by plaintiffs [671−1] (hk) (Entered: 07/29/2002)
LODGED order directing dfts to develop remedial plan by plaintiff Steven G Williams (hk) (Entered: 07/29/2002)
673 PROOF OF SERVICE by plaintiff of [0−0], [672−1], [671−1] (hk) (Entered: 07/29/2002)
LODGED Document: Proposed Order Directing dfts to develop remedial plan lodged on 7/26/02 (NOT TO BE SIGNED PER JUDGE) (ndd) (Entered: 09/03/2002)
674 JOINT STIPULATION re discovery dispute (crf) (Entered: 08/05/2002)
675 DECLARATION of Michael W Bien in support of joint stipulation re discovery dispute [674−1] (crf) (Entered: 08/05/2002)
676 DECLARATION of Ana E Ayala in support of joint stipulation re discovery dispute [674−1] (crf) (Entered: 08/05/2002)
680 MOTION to join Jerry Valdavia, Alfred Yancy and Hossie Welch pursuant to FRCP rule 18 and 23 by Philip Brown ; motion TO BE HEARD by Honorable Lawrence K. Karlton; Motion Hearing not noticed (nac) (Entered: 08/12/2002)
677 ORDER by Honorable Lawrence K. Karlton ORDERING plts' discovery dispute [665−1] is CONTINUED to 10:00 8/26/02 (cc: all counsel) (ndd) (Entered: 08/09/2002)
678 OPPOSITION by dfts − Daly, − Angele, − Presley, Edward McNair, − Bordonaro, Gray Davis, − Alameida, − Stephens, − Munoz, − Granlund, − Lawin, − Moore, and Hossie Welch to motion for order directing dfts to develop remedial plan by plaintiffs [671−1] (bd) (Entered: 08/12/2002)
679 LETTER to court from "David James Harney" requesting information re how to become a party to case (bd) (Entered: 08/12/2002)
681 ORDER by Honorable Lawrence K. Karlton ORDERING motion to join Jerry Valdavia, Alfred Yancy and Hossie Welch pursuant to FRCP rule 18 and 23 by Philip Brown [680−1] DENIED; The Clerk is directed to FILE a copy of this order and ft's application in the Valdivia case, no. CIV.S−94−671 LKK GGH; The Clerk is also directed to SERVE a copy of dft's application and this order on pltfs' counsel Ms. Karen Kennard; The matter is REFERRED to pltfs' counsel for any action they deem appropriate (cc: all counsel) (nac) (Entered: 08/12/2002)
LODGED Stipulation and Order Shortening time for plts' motion to compel dfts' production of documents (ndd) (Entered: 08/13/2002)
682 NOTICE OF MOTION AND MOTION to compel production ofdocuments by plaintiffs ; MEMORANDUM of Points and Authorities in support; motion TO BE HEARD by Honorable Lawrence K. Karlton ; Motion Hearing Set For 8/26/02 (ndd) (Entered: 08/13/2002)
683 DECLARATION of Craig Haney in support of plts' Motion to compel dfts' production of documents [682−1] (ndd) (Entered: 08/13/2002)
684 DECLARATION of Anne Mania in support of Motion to compel dfts' production of documents [682−1] (ndd) (Entered: 08/13/2002)

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 81 of 168

08/12/2002 08/12/2002 08/12/2002 08/15/2002 08/15/2002
08/16/2002
08/16/2002
08/16/2002 08/16/2002 08/16/2002 08/16/2002 08/16/2002 08/16/2002 08/16/2002
08/19/2002 08/19/2002 08/19/2002 08/19/2002 08/20/2002 08/20/2002

LODGED Proposed Order Compelling dfts to produce documents by plaintiffs (ndd) (Entered: 08/13/2002)
685 DECLARATION of Anne Mania in support of Stipulation and Order Shortening time on plts' motion to compel dfts' productions of documents [0−0] (ndd) (Entered: 08/13/2002)
686 PROOF OF SERVICE by plaintiffs of [685−1], [0−0], [684−1], [683−1], [682−1], [0−0], [681−1], [679−1] (ndd) (Entered: 08/13/2002)
LODGED joint stipulation re modification of scheduling order submitted by dfts − Daly, − Angele, − Presley, − Bordonaro, − Alameida, − Stephens, − Munoz, − Granlund, − Lawin, − Moore, and Hossie Welch (bd) (Entered: 08/16/2002)
696 LETTER to court from counsel for plaintiffs apprised the court that plts may re−notice their Motion to compel production of documents [682−1] for September if the parties are unable to reach an agreement next week re dfts' production of documents (ndd) (Entered: 08/19/2002)
687 NOTICE OF MOTION AND MOTION for summary judgment by dfts − Daly, − Angele, − Presley, Edward McNair, − Bordonaro, Gray Davis, − Alameida, − Stephens, − Munoz, − Granlund, − Lawin, − Moore, Welch, and Terms ; Motion Hearing Set for 10:00 9/16/02; memorandum of points and authorities in support thereof (bd) Modified on 08/19/2002 (Entered: 08/19/2002)
688 STATEMENT by dfts Hossie Welch, Edward McNair, Gray Davis, − Daly, − Angele, − Presley, − Bordonaro, − Alameida, − Stephens, − Munoz, − Granlund, − Lawin, − Moore, and Terms of undisputed material facts in support of motion for summary judgment [687−1] (bd) (Entered: 08/19/2002)
689 DECLARATION of Erika C Aljens (Volume I [Exhibits A−P]) in support of motion for summary judgment [687−1] (bd) (Entered: 08/19/2002)
690 DECLARATION of Erika C Aljens (Volume 2 [Exhibits Q−MM]) in support of motion for summary judgment [687−1] (bd) (Entered: 08/19/2002)
692 DEPOSITION of Karl Horne taken on 8/28/01 (bd) (Entered: 08/19/2002)
693 DEPOSITION of Vallabhaneni Mennakshi MD taken on 7/1/02 (bd) (Entered: 08/19/2002)
694 DEPOSITION of Marc Eric St John taken on 2/20/02 (bd) (Entered: 08/19/2002)
695 DEPOSITION of Mghia Buckius taken on 10/25/01 (bd) (Entered: 08/19/2002)
691 NOTICE by dfts Edward McNair, Gray Davis, − Daly, − Angele, − Presley, − Bordonaro, − Alameida, − Stephens, − Munoz, − Granlund, − Lawin, − Moore, Welch, and Terms of depositions : [695−1], [694−1], [693−1], and [692−1] (bd) (Entered: 08/19/2002)
697 REPLY MEMORANDUM in support of plts' motion for order directing dfts to develop remedial plan [671−1] (ndd) (Entered: 08/20/2002)
698 DECLARATION of Kristen Palumbo in support of plts' Reply in support motion for order directing dfts to develop remedial plan [697−1] (ndd) (Entered: 08/20/2002)
699 PROOF OF SERVICE by plaintiffs of [698−1], [697−1] (ndd) (Entered: 08/20/2002)
700 LETTER to court from Philip J Brown who wants to be a class member of the case (ndd) (Entered: 08/20/2002)
701 DEPOSITION of Vallabhaneni Mennakshi MD taken on 7/1/02 (bd) (Entered: 08/21/2002)
702 AMENDMEDED notice of filing of original transcripts, (amending [691−1]) by dfts − Stephens, − Munoz, − Granlund, − Lawin, − Moore, − Daly, − Angele, − Presley, − Bordonaro, − Alameida , Welch, and Terms (bd) (Entered: 08/21/2002)

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 82 of 168

08/20/2002 08/26/2002 08/26/2002 08/28/2002 08/28/2002 09/03/2002 09/04/2002
09/04/2002 09/04/2002 09/04/2002 09/06/2002
09/06/2002 09/13/2002

703 TABLE OF CONTENTS and table of authorities in support of motion for summary judgment by dfts − Daly, − Angele, − Presley, Edward McNair, − Bordonaro, Gray Davis, − Alameida, − Stephens, − Munoz, − Granlund, − Lawin, − Moore, Welch, and Terms [687−1] (bd) (Entered: 08/21/2002)
704 STIPULATION AND ORDER by Honorable Lawrence K. Karlton motion filing ddl reset for 9/16/02 (cc: all counsel) (ljr) (Entered: 08/26/2002)
705 MINUTES before Honorable Lawrence K. Karlton: pltfs motion to compel production of documents by pltfs [682−1] and motion to compel [665−1] GRANTED Conditionally (see court order to follow); motion for order directing dfts to develop remedial plan by pltfs [671−1] DENIED; court certified case for interlocatory appeal; C/R C Bodene (mdk) (Entered: 08/27/2002)
706 STIPULATION AND ORDER by Honorable Lawrence K. Karlton: motion for summary judgment by dfts [687−1] HEARING RESET FOR 10:00 10/15/02; pltfs shall file their opposition to dfts' motion no later than 9/24/02; dfts' shall file their reply to pltfs' opposition no later than 10/8/02 (cc: all counsel) (mdk) (Entered: 08/28/2002)
707 TRANSCRIPT of 8/26/02 hearing on Discovery Dispute &Motion directing dfts to develop remedial plan by C/R Catherine E F Bodene (mm1) (Entered: 08/29/2002)
710 AMENDMENT by dft Daly, Angele, Presley, McNair, Bordonaro, Davis, Alameida, Stephens, Munoz, Granlund, Lawin, Moore and Welch to Exhibits G attached to the declaration of Erica Aljens Vol 1 [689−1] (ak) (Entered: 09/04/2002)
708 ORDER by Honorable Lawrence K. Karlton ORDERING that the Motion to Compel [682−1] is DENIED premised upon the parties being limited to the procedures which were existent at the time that both parties' experts examined the proceedings; should the State institute new proceedings not later than December of this year, the plts shall be provided the opportunity to videotape them and to have their expert examine them in due course considering that the court intends to go to trial in April; Should such inspection and recording not be possible, the new produres will be disregarded as a sanction for inappropriate representations to the court; the motion for order directing dfts to develop remedial plan [671−1] is DENIED and the matter will be certified for interlocutory appeal; Should the 9th Circuit choose not to take the interlocutory appeal, the plts are directed to reset this matter for a hearing before the court (cc: all counsel) (ndd) (Entered: 09/04/2002)
709 ORDER by Honorable Lawrence K. Karlton ORDERING that the court's order [664−1] is CERTIFIED FOR Interlocutory APPEAL (cc: all counsel) (ndd) (Entered: 09/04/2002)
LODGED Joint Stipulation and Proposed Order Amending complaint to add exemplar class members as named class representatives by plaintiffs (ndd) (Entered: 09/05/2002)
711 LETTER to court from counsel for plaintiffs enclosed the Joint Stipulation and Order amending complaint to add exemplar class members as named class representatives [0−0] (ndd) (Entered: 09/05/2002)
712 STIPULATION AND ORDER by Honorable Lawrence K. Karlton ORDERED that plt may file a 5th Amended Complaint adding some or all of the Exemplar Class Members as named class representative no later than 9/15/02; dfts shall have the option to file a new answer to the 5th Amended Complaint or have their current answer deemed the answer to the 5th Amended Complaint; if dfts choose to file a new answer, it shall be filed no later than 10/15/02 (cc: all counsel) (ndd) (Entered: 09/06/2002)
713 REQUEST to become a party to this case by inmate David Handel (nac) (Entered: 09/09/2002)
714 FIFTH AMENDED COMPLAINT for Declaratory and Injunctive Relief (complaint [349−1] TERMINATED) by plts Alfred Yancy, Hossie Welch, Jerry Valdivia terminating dfts Moore, Lawin, Granlund, Munoz, Stephens, Alameida, Bordonaro, Presley, Angele, Daly, Gray Davis, Tom Maddock, Ted Rich, Steven G

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 83 of 168

09/17/2002 09/20/2002 09/24/2002 09/24/2002 09/24/2002 09/24/2002 09/24/2002 09/24/2002
09/24/2002 09/24/2002 09/24/2002 09/24/2002 09/24/2002 09/24/2002 09/24/2002 09/24/2002
09/26/2002
09/30/2002 10/04/2002
10/04/2002

Baker, Eddie Myers, Gregory W Harding, Tom Maddock, California State, Joe Sandoval adding plts Nghia Buckius, Mario Carillo, Phillip Castillo, George Cortes, Francis Culotta, David Dixon, Karl Horne, Scott Iroff, Walter − Jones, Mustafa Khalil, Raymond Latimore, Raymond Latimore, Andre Lyons, Claude McDaniel, Nathan Morris, Edward Navarro, Steven O'Donohue, Ogwuobu Ojoir, Willie Patton, James − Robinson, Troy Scurry, Mark John, Gregory Strong, Alfred Taylor, Christopher Thomas, Jimmy Watson, Curtis Williams (ndd) (Entered: 09/16/2002)
715 REQUEST by "Tony G DeLaunay" for final judgment in case, entitled "motion to enter final judgment on order; motion to intervene..." (bd) (Entered: 09/18/2002)
716 LETTER to court from prisoner Kevin Oles regarding that he would like to become a part of this class action suit (mdk) (Entered: 09/23/2002)
717 OPPOSITION by plaintiffs to motion for summary judgment by dfts [687−1] (ndd) (Entered: 09/25/2002)
718 OBJECTIONS by plaintiffs to Evidence support of dfts' Motion for summary judgment [687−1] (ndd) (Entered: 09/25/2002)
719 DECLARATION of Michael W Bien in support of Opposition to dfts' motion for summary judgment [717−1] (ndd) (Entered: 09/25/2002)
720 EXHIBITS to Declaration of Michael W Bien in opposition to dfts' motion for summary judgment [719−1], Vol I: Exh 1 through 8 (ndd) (Entered: 09/25/2002)
721 EXHIBITS to Declaration of Michael W Bien in opposition to dfts' partial summary judgment [719−1], Vol 2: Exh 9 through 19 (ndd) (Entered: 09/25/2002)
722 DECLARATION of Ana E Ayala in support of plts' Opposition to dfts' partial motion for summary judgment [717−1], Vol 1 (ndd) Modified on 09/25/2002 (Entered: 09/25/2002)
723 DECLARATION of Ana E Ayala in support of plts' Opposition to dfts' partial motion for summary judgment [717−1], Vol 2 (ndd) (Entered: 09/25/2002)
724 SEALED document ( ) (ndd) (Entered: 09/25/2002)
725 SEALED document ( ) (ndd) (Entered: 09/25/2002)
726 SEALED document ( ) (ndd) (Entered: 09/25/2002)
727 REQUEST for Judicial notice in opposition to dfts' motion for summary judgment by plaintiffs (ndd) (Entered: 09/25/2002)
LODGED Proposed Order Denying dfts' motion for summary judgment by plaintiffs (ndd) (Entered: 09/25/2002)
728 PROOF OF SERVICE by plaintiffs of [0−0], [727−1], [723−1], [722−1], [721−1], [720−1], [719−1], [718−1], [717−1] (ndd) (Entered: 09/25/2002)
LODGED Document: Proposed Order Denying dfts' motion for summary judgment lodged on 9/24/02 (NOT TO BE SIGNED PER JUDGE) (ndd) (Entered: 06/09/2003)
729 NOTICE OF LODGING by plaintiff of deposition transcripts of: M Karl Carrillo 10/26/01, Nancy Cowardin 6/13/02, Glenn Fait 6/21/02, Roy Little 6/18/02, Meena V Meenakshi 6/19/02, Edward Navarro 10/30/01, and Karen Snell 6/28/02 (mdk) (Entered: 09/27/2002)
730 AMENDED NOTICE of Lodging of Deposition Transcripts [729−1]; lodging Deposition transcript of Glenn Fait (ndd) (Entered: 10/01/2002)
LODGED dfts' request for an ext of time to file a notice of appeal by dfts Daly, Angele, Presley, McNair, Bordonaro, Davis, Alameida, Stephens, Munoz, Granlund, Lawin, Moore and Welch (ak) (Entered: 10/07/2002)
731 INTERLOCUTORY APPEAL by dfts McNair, Davis, Daly, Angele, Presley, Bordonaro, Alameida, Stephens, Munoz, Granlund, Lawin, Moore and Welch re

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 84 of 168

10/07/2002 10/07/2002 10/08/2002
10/10/2002 10/11/2002 10/11/2002 10/11/2002 10/11/2002 10/15/2002 10/15/2002 10/15/2002 10/17/2002 10/18/2002
10/24/2002

order [664−1] (nac) (Entered: 10/07/2002)
732 MAILED case information/docket fee payment notice, copy of Notice of Appeal to 9th Circuit Court of Appeals, copy of appeal and docket sheet to all parties (nac) (Entered: 10/07/2002)
733 NOTICE by defendants of lodging of deposition transcripts of Nancy Cowardin dated 6/13/02 and Rory K Little dated 6/18/02 (ljr) (Entered: 10/08/2002)
734 Dfts' REPLY to response to motion for summary judgment by dfts − Daly, − Angele, − Presley, Edward McNair, − Bordonaro, Gray Davis, − Alameida, − Stephens, − Munoz, − Granlund, − − Moore, Welch, and Terms [687−1]; memo of pts and authorities in support thereof (ak) Modified on 10/09/2002 (Entered: 10/09/2002)
735 ORDER by Honorable Lawrence K. Karlton ORDERING that dfts' request for an extension of time to file an interlocutory appeal [731−1] is DENIED; motion for order directing dfts to develop remedial plan by plaintiffs [671−1] RESET for 10/15/02 (cc: all counsel) (ndd) (Entered: 10/10/2002)
736 NOTICE by dfts − Daly, − Angele, − Presley, − Bordonaro, − Alameida, − Stephens, − Munoz, − Granlund, − Lawin, − Moore, Hossie Welch, Edward McNair, and Gray Davis of withdrawal of notice of appeal [731−1] (bd) (Entered: 10/15/2002)
NOTIFICATION by 9th Circuit of Appellate Docket Number 02−16968 (bd) (Entered: 10/15/2002)
737 LETTER to court from counsel for plaintiffs opposed dfts' request for an extension of time to file a notice of appeal [0−0] (ndd) (Entered: 10/15/2002)
738 REPLY by defendants in support of their request for an extension of time to file their notice of appeal [0−0] (ndd) (Entered: 10/15/2002)
739 MINUTES before Honorable Lawrence K. Karlton: dfts' motion for summary judgment [687−1] SUBMITTED; further briefing required: 30 days after court issues order, 15 days to respond thereafter; oral argument to be set by court; C Bodene (ndd) (Entered: 10/16/2002)
740 DECLARATION of Michael W Bien in support of plts' renewed Motion for order directing dfts to develop remedial plan [671−1] (ndd) (Entered: 10/16/2002)
LODGED joint stipulation for an extension of time for dfts to file an answer to pltfs' fifth amended cmp by dfts − Daly, − Angele, − Presley, Edward McNair, − Bordonaro, Gray Davis, − Alameida, − Stephens, − Munoz, − Granlund, − Lawin, − Moore, and Hossie Welch (bd) (Entered: 10/16/2002)
741 LETTER to court from counsel for plaintiffs requesting their motion for remedial plan [671−1] be reset on 10/15/02 (ndd) (Entered: 10/18/2002)
742 ORDER by Honorable Lawrence K. Karlton ORDERING that dfts shall SERVE on plts, within 60 days of the effective date of this order, a Proposed Remedial Plan addressing the constitutional deficiencies identified in the court's 6/13/02 order [664−1]; should dfts attempt in good faith to develop a plan but determine that they are unable to do so, dfts shall FILE, within 45 days of the effective date of this order, an affidavit explaining in detail the reasons for their failure to timely propose such plan; the parties shall then meet and confer and complete negotiations within 60 days of the date of dfts' service of their Proposed Remedial Plan upon plts; upon expiration of the 60 days period, dfts shall FILE a Proposed Remedial Order with the court; plts shall FILE any objections to the Proposed Remedial Order within 15 days after dfts file their Proposed Remedial Order with the court [671−1] (cc: all counsel) (ndd) (Entered: 10/18/2002)
743 ORDER by Honorable Lawrence K. Karlton ORDERING the parties to brief the specific questions identified in this order; The parties to file their opening briefs within 30 days of the effective date of this order; Parties to file their response briefs, if any, within 15 days of the deadline for the filing of opening briefs; Oral argument is SET for 10:00 1/21/03 (cc: all counsel) (nac) (Entered: 10/24/2002)

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 85 of 168

10/24/2002 10/30/2002 11/01/2002
11/06/2002 11/06/2002 11/12/2002 11/13/2002
11/14/2002 11/14/2002 11/22/2002
11/22/2002 11/25/2002 11/25/2002 11/25/2002 11/25/2002 11/25/2002 12/02/2002
12/02/2002
12/02/2002 12/05/2002

744 TRANSCRIPT of 10/15/02 hearing on dfts' motion for summary judgment by C/R C Bodene (old) (Entered: 10/25/2002)
745 ORDER from 9th Circuit that appellants' motion for voluntary dismissal of this appeal [731−1] is GRANTED (ndd) (Entered: 10/31/2002)
746 STIPULATION AND ORDER by Honorable Lawrence K. Karlton ORDERED that dfts shall be granted 30 additional days, to and including 11/14/02, to file their answer to plts' 5th amended complaint (cc: all counsel) (ndd) (Entered: 11/01/2002)
LODGED Proposed Order modifying the trial schedule by plaintiffs (ndd) (Entered: 11/07/2002)
747 LETTER to court from counsel for plaintiffs requesting the court to modify the trial schedule (ndd) (Entered: 11/13/2002)
749 MINUTES of Status Conference before Honorable Lawrence K. Karlton pretrial conference reset for 2:30 3/31/03 jury trial reset for 10:00 6/24/03 ; court order to follow (ndd) (Entered: 11/13/2002)
748 ORDER by Honorable Lawrence K. Karlton ORDERING that the pretrial and trial dates shall be modified as follows: parties' separate pretrial statement due 3/3/03, joint pretrial statement due 3/10/03; pretrial conference set for 2:30 3/31/03 jury trial set for 10:00 6/24/03 (cc: counsel) (ndd) (Entered: 11/13/2002)
750 LETTER to court from Willie Russell requesting the court to add him to the civil action as a class (pw) (Entered: 11/15/2002)
751 ANSWER by defendant Edward McNair to complaint [714−1] (ak) (Entered: 11/15/2002)
752 SUPPLEMENTAL BRIEFING in support of dfts' motion for summary judgment and memo of pts and authorities by − dfts' Daly, − Angele, − Presley, McNair, − Bordonaro, − Alameida, − Stephens, − Munoz, − Granlund, − Lawin, − Moore and Welch (ak) (Entered: 11/25/2002)
753 DECLARATION of Daniel J Carvo re exhs NN − UU (ak) (Entered: 11/25/2002)
754 OPENING BRIEF by plaintiffs in response to Court's order [743−1] (ndd) (Entered: 11/26/2002)
755 DECLARATION of Karen Kennard in support of plts' Opening Brief in response to court's order [754−1] (ndd) (Entered: 11/26/2002)
756 DECLARATION of Karen Kennard in support of plts' Opening Brief in response to court's order [754−1], Vol II (ndd) (Entered: 11/26/2002)
757 DECLARATION of Karen Kennard in support of plts' Opening Brief in response to court' order [754−1], Vol III (ndd) (Entered: 11/26/2002)
758 PROOF OF SERVICE by plaintiffs of [757−1], [756−1], [755−1], [754−1] (ndd) (Entered: 11/26/2002)
LODGED stipulation re filing detailed statement and for extension fo time to prepare comprehensive plan by dfts − Daly, − Angele, − Presley, Edward McNair, − Bordonaro, Gray Davis, − Alameida, − Stephens, − Munoz, − Lawin, − Moore, and Hossie Welch (bd) (Entered: 12/03/2002)
LODGED stipulation re filing detailed statement and for extension of time to prepare comprehensive plan by dfts Edward McNair, Gray Davis, − Angele, Presley, − Bordonaro, − Alameida, − Stephens, − Munoz, − Lawin, and − Moore (bd) (Entered: 12/05/2002)
LODGED Document: Stipulation re Filing Detailed Statement and for extension of time to prepare comprehensive plan not to be signed (ndd) (Entered: 12/17/2002)
759 STIPULATION AND ORDER by Honorable Lawrence K. Karlton: Stipulation re filing detailed statement and extension of time to prepare comprehensive plan is GRANTED; all litigation hearings motions etc shall be stayed pending status

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 86 of 168

12/11/2002
12/13/2002 12/16/2002 12/19/2002 12/20/2002 01/02/2003 01/06/2003 01/17/2003 03/11/2003 04/01/2003 04/07/2003
04/07/2003 04/07/2003 04/07/2003 04/10/2003
04/10/2003 04/14/2003
04/14/2003 04/14/2003

conference SET for 1:30 PM 4/14/03 (cc: all counsel) (pw) (Entered: 12/05/2002)
760 ORDER by Honorable Lawrence K. Karlton ORDERING Tony G DeLaunay's request (entitled as a motion) to intervene and for entry of final judgment [715−1] DENIED; The Clerk is directed to SERVE a copy of this order on Tony G DeLaunay (cc: all counsel) (nac) (Entered: 12/11/2002)
761 JOINT STATEMENT of Issues remaining for resolution (ndd) (Entered: 12/16/2002)
762 MAIL returned [759−2] addressed to Alexander L Landon at Law Ofcs of Alex Landon (bd) (Entered: 12/17/2002)
763 LETTER to court from prisoner Philip J Brown asking for assistance due to he has terminal cancer (mdk) (Entered: 12/20/2002)
764 REQUEST from "Anthon Gart" for copies of docs in case (bd) (Entered: 12/23/2002)
765 APPLICATION for leave for court assistance in filing motion under FRCP 65 by Mark Wilson (ndd) (Entered: 01/03/2003)
766 EX PARTE APPLICATION by Lennal Khabir Shabazz to be added as a pltf (bd) (Entered: 01/07/2003)
767 NOTICE of change of address of "Lennal Khabir Shabazz" to H−42570, Community Correctional Facility, 2727 West Industry Way, PO Box 1060, Delano CA 93216−0580 (bd) (Entered: 01/21/2003)
770 LETTER to court from Manuel Soares requesting info re this case (hk) (Entered: 03/12/2003)
771 JOINT STATUS REPORT (ndd) (Entered: 04/02/2003)
772 REQUEST (MOTION) by "class member pltf" Mark Wilson for temporary restraining order enjoining dfts from maintaining continued physical custody of pltf; memorandum of points and authorities; declaration of Mark Wilson (mdk) (Entered: 04/08/2003)
LODGED proposed order by Mark Wilson granting temporary restraining order (mdk) (Entered: 04/08/2003)
773 DECLARATION of Donald Specter relating to 4/14/03 status conference (mdk) (Entered: 04/08/2003)
LODGED Document: Proposed Order Granting TRO lodged on 4/7/03 (NOT TO BE SIGNED PER JUDGE) (ndd) (Entered: 04/30/2003)
774 NOTICE OF MOTION AND MOTION to strike pltf's ex parte declaration by dfts Daly, Angele, Presley, McNair, Bordonaro, Davis, Alameida, Stephens, Munoz, Lawin, and Moore ; Memorandum of points and authorities; Motion TO BE HEARD by Honorable Lawrence K. Karlton; Motion Hearing SET For 1:30 04/14/03; AND.... (nac) (Entered: 04/11/2003)
774 ...REQUEST by dfts McNair, Davis, Daly, Angele, Presley, Bordonaro, and Alameida to shorten time (nac) (Entered: 04/11/2003)
775 OPPOSITION by plaintiffs to motion to strike pltf's ex parte declaration by dfts Daly, Angele, Presley, McNair, Bordonaro, Davis, Alameida, Stephens, Munoz, Lawin, and Moore [774−1] and to dfts' motion to shorten time (ndd) (Entered: 04/15/2003)
776 DECLARATION of Michael W Bien in support of plts' Opposition to dfts' motion to strike and to dfts' motion to shorten time [775−1] (ndd) (Entered: 04/15/2003)
779 MINUTES of status conference before Honorable Lawrence K. Karlton: motion to strike pltf's ex parte declaration by Daly, Angele, Presley, McNair, Bordonaro, Davis, Alameida, Stephens, Munoz, Lawin, and Moore [774−1] DENIED; hearing set for 06/09/03 at 10:00; C/R C. Bodene (old) (Entered: 04/18/2003)

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 87 of 168

04/16/2003 04/16/2003 04/30/2003 05/07/2003 05/12/2003 05/12/2003
05/12/2003
05/12/2003
05/12/2003
05/14/2003 05/27/2003 05/27/2003 05/27/2003

777 ORDER by Honorable Lawrence K. Karlton ORDERING status conference SET for 6/9/03 , immediately following the court's regularly scheduled law and motion calendar (cc: all counsel) (ndd) (Entered: 04/16/2003)
778 CHANGE IN DESIGNATION OF COUNSEL for Service by defendants − Daly, − Angele, − Presley, − Bordonaro, Edward McNair, Gray Davis, − Alameida, − Stephens, − Munoz, − Lawin, − Moore, Hossie Welch, and Rimmer (mm1) (Entered: 04/17/2003)
780 ORDER by Honorable Lawrence K. Karlton ORDERING that motion for a TRO filed a class member [772−1] be DISREGARDED; Clerk is directed to serve a copy of the motion on class counsel (cc: all counsel) (ndd) (Entered: 04/30/2003)
781 AFFIDAVIT of John Len Parrish in support of stipulated remedy (mdk) (Entered: 05/08/2003)
782 NOTICE of change of address of "Mark Wilson" to 15111 Bushard St #118, Westminster CA 92683 (am served) (bd) (Entered: 05/13/2003)
783 NOTICE OF MOTION &MOTION regarding Objections to dfts' proposed remedial plan addressing 6/13/02 Order &for order directing dfts to develop revised remedial plan by pltfs Alfred Taylor, Christopher Thomas, Jimmy Watson, Gregory Strong, Curtis Williams, Troy Scurry, Mark St John, Ogwuobu Ojoir, Willie Patton, James − Robinson, Steven O'Donohue, Claude McDaniel, Nathan Morris, Edward Navarro, Andre Lyons, Walter − Jones, Mustafa Khalil, Raymond Latimore, Karl Horne, Scott Iroff, Mario Carillo, Phillip Castillo, George Cortes, Francis Culotta, David Dixon, Nghia Buckius Motion TO BE HEARD by Honorable Lawrence K Karlton; Motion Hearing Set For 10:00 6/9/03 (mm1) (Entered: 05/13/2003)
784 OBJECTIONS by pltfs Alfred Taylor, Christopher Thomas, Jimmy Watson, Curtis Williams, Steven O'Donohue, Ogwuobu Ojoir, Willie Patton, James − Robinson, Troy Scurry, Mark St John, Gregory Strong, Walter − Jones, Mustafa Khalil, Raymond Latimore, Andre Lyons, Claude McDaniel, Nathan Morris, Edward Navarro, Mario Carillo, Phillip Castillo, George Cortes, Francis Culotta, David Dixon, Karl Horne, Scott Iroff, and Nghia Buckius to dfts's Proposed Remedial Plan addressing 6/13/02 Order (mm1) (Entered: 05/13/2003)
LODGED (Proposed) Order directing defendants to develop revised remedial plan addressing Court's 6/13/02 Order by plaintiffs Nghia Buckius, Mario Carillo, Phillip Castillo, George Cortes, Francis Culotta, David Dixon, Karl Horne, Scott Iroff, Walter − Jones, Mustafa Khalil, Raymond Latimore, Andre Lyons, Claude McDaniel, Nathan Morris, Edward Navarro, Steven O'Donohue, Ogwuobu Ojoir, Willie Patton, James − Robinson, Troy Scurry, Mark John, Gregory Strong, Alfred Taylor, Christopher Thomas, Jimmy Watson, and Curtis Williams (mm1) (Entered: 05/13/2003)
785 PROOF OF SERVICE by pltfs Nghia Buckius, Mario Carillo, Phillip Castillo, George Cortes, Francis Culotta, David Dixon, Karl Horne, Scott Iroff, Walter − Jones, Mustafa Khalil, Raymond Latimore, Andre Lyons, Claude McDaniel, Nathan Morris, Edward Navarro, Steven O'Donohue, Ogwuobu Ojoir, Willie Patton, James − Robinson, Troy Scurry, Mark St John, Strong, Alfred Taylor, Christopher Thomas, Jimmy Watson, Curtis Williams of [784−1], [783−1] (mm1) (Entered: 05/13/2003)
786 ORDER by Honorable Lawrence K. Karlton ORDERING affidavit of John Len Parrish [781−1] DISREGARDED; Clerk is directed to serve a copy of the affidavit on class counsel (cc: all counsel) (mdk) (Entered: 05/14/2003)
787 BRIEF in support of the proposed remedial plan by dfts − Daly, − Angele, − Presley, Edward McNair, − Bordonaro, Gray Davis, − Alameida, − Stephens, − Munoz, − Lawin, and − Moore (bd) (Entered: 05/28/2003)
788 DECLARATION of Fred Haywood in support of brief in support of proposed remedial plan [787−1] (bd) (Entered: 05/29/2003)
789 PROOF OF SERVICE by dfts − Daly, − Angele, − Presley, Edward McNair, − Bordonaro, Gray Davis, − Alameida, − Stephens, − Munoz, − Lawin, − Moore, and

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 88 of 168

06/03/2003
06/03/2003 06/03/2003 06/09/2003 06/13/2003 07/08/2003 07/23/2003
08/08/2003 08/08/2003 08/11/2003 08/11/2003 08/11/2003 08/11/2003 08/20/2003 08/21/2003

Hossie Welch of [787−1], [788−1] (bd) (Entered: 05/29/2003)
790 STIPULATION AND ORDER by Honorable Lawrence K. Karlton ORDERING that the parties have until 6/3/03 to file joint status conference statement for 6/9/03 status conference; pltf's shall have until 6/3/03 to file their reply memorandum in support of pltf's objections to dfts' proposed remedial plan addressing 6/13/02 order and in response to dfts' brief support of the proposed remedial plan (cc: all counsel) (mdk) (Entered: 06/03/2003)
791 JOINT Status Conference Statement (mm1) (Entered: 06/04/2003)
792 REPLY Memorandum by plaintiffs in support of Objections to defendants' Proposed Remedial Plan addressing 6/13/02 Order [784−1] (mm1) (Entered: 06/04/2003)
793 MINUTES before Honorable Lawrence K. Karlton: plts' motion re remedial plan [783−1] SUBMITTED; status conference SET for 2:30 9/8/03 C/R C Bodene (ndd) (Entered: 06/10/2003)
794 CLARIFICATION of argument in support of the proposed remedial plan by dfts Daly, Angele, Presley, McNair, Bordonaro, Davis, Alameida, Stephens, Munoz, Rimmer, Lawin, Moore and Welch (nac) (Entered: 06/16/2003)
795 TRANSCRIPT of 06/09/03 hearing on proposed remedial plan by C/R C Bodene (nac) (Entered: 07/09/2003)
796 ORDER by Honorable Lawrence K. Karlton ORDERING that dfts submit, not later than 8/21/03, a revised remedial plan including a preliminary probable cause hearing which (1) occurs no more than 10 calendar days after a parolee is taken into custody for an alleged parole violation, and (2) affords the parolee the rights provided by Morrissey, including notice of the alleged violations, the opportunity to appear and present evidence, a conditional right to confront adverse witnesses, an independent decision−maker, and a written report of the hearing; Alternatively, dfts may decide to develop a plan that includes a unitary parole revocation hearing that (1) occurs promptly enough after a parolee is taken into custody to qualify as the preliminary probable cause hearing, and (2) otherwise meets the constitutional requirements for both a preliminary and final parole revocation hearing, as set forth in Morrissey [783−1](cc: all counsel) (ndd) (Entered: 07/23/2003)
797 NOTICE specifying current defendants by defendants (mdk) (Entered: 08/11/2003)
798 INTERLOCUTORY APPEAL by dfts Gray Davis, − Presley, − Alameida, Daly, − Angele, − Lawin, − Moore, and Hossie Welch re order [796−1] (bd) (Entered: 08/11/2003)
799 MAILED case information/docket fee payment notice, copy of Notice of Appeal to 9th Circuit Court of Appeals, copy of appeal and docket sheet to all parties (bd) (Entered: 08/11/2003)
800 PROPOSED LAYOFF PLAN by CA Atty Admin Law re Order [796−1] (ndd) (Entered: 08/12/2003)
801 NOTICE OF MOTION AND MOTION to stay all remaining matters not immediately stayed pending their interlocutory appeal by dfts Gray Davis, − Presley, − Alameida, − Daly, − Angele, − Lawin, Joe Sandoval, Hossie Welch, and − Moore ; Motion Hearing Set for 10:00 9/22/03 (bd) (Entered: 08/12/2003)
802 NOTICE of intent not to file a remedial plan on 8/21/03 by dfts Gray Davis, − Presley, − Alameida, − Daly, − Angele, − Lawin, Hossie Welch, and − Moore (bd) (Entered: 08/12/2003)
803 LETTER to court from counsel for defendants that dfts believed the jurisdiction over the matters on appeal has transferred to the Court of Appeals and that dfts are no longer obligated to submit a remedial plan by 8/21/03 [802−1] (ndd) (Entered: 08/21/2003)
804 NOTICE by Attorney General's Office of filing Valdivia Remedial Plan &Remedial Plan Policy Outline (mm1) (Entered: 08/22/2003)

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 89 of 168

08/22/2003 09/03/2003
09/04/2003 09/08/2003 09/10/2003
09/15/2003 09/15/2003 09/16/2003 10/02/2003
10/20/2003 10/28/2003 10/30/2003 11/04/2003 11/05/2003
11/17/2003 11/18/2003 11/24/2003
11/24/2003 11/26/2003

805 LETTER to court from counsel for plaintiff in response to dft's letter [803−1] (ndd) (Entered: 08/25/2003)
806 COURT NOTICE from CRD: status conference hearing set for 09/08/03 CONTINUED to 1:30 10/28/03 ; The parties to file status reports no later than 10 days preceding the conference; Counsel to serve a copy of this notice on any newly added parties (cc: all counsel) (nac) (Entered: 09/04/2003)
LODGED stipulated order to continue the hearing on dfts' motion to stay all remaining matters pending their appeal (mdk) (Entered: 09/04/2003)
807 TRANSCRIPT DESIGNATION and Ordering Form for dates 6/10/02, 8/26/02 [707−1], 4/14/03, 6/9/03 [795−1] re appeal [798−1] (ndd) (Entered: 09/09/2003)
808 STIPULATION AND ORDER by Honorable Lawrence K. Karlton ORDERED that upon the parties' stipulation, the dfts' motion to stay all remaining matters not immediately stayed pending their interlocutory appeal 801 HEARING CONTINUED to 10:00 10/20/03 (cc: all counsel) (ndd) (Entered: 09/10/2003)
809 TRANSCRIPT of 4/14/03 hearing on Status Hearing by C/R C Bodene (ndd) (Entered: 09/16/2003)
810 TRANSCRIPT of 6/10/02 hearing on plts' Motion for partial summary judgment; by C/R C Bodene (ndd) (Entered: 09/16/2003)
811 CERTIFICATE OF RECORD transmitted to 9th Circuit [798−1] (notice sent) (ndd) (Entered: 09/16/2003)
812 WITHDRAWAL of motion to stay all remaining matters not immediately stayed pending their interlocutory appeal by dfts Gray Davis, − Presley, − Alameida, − Daly, − Angele, − Lawin, Joe Sandoval, Hossie Welch, and − Moore [801−1] TERMINATED (ndd) (Entered: 10/03/2003)
813 JOINT STATUS REPORT (ndd) (Entered: 10/21/2003)
814 MINUTES of status conference before Honorable Lawrence K. Karlton: further status conference SET for 1:30 11/12/03 (old) (Entered: 10/29/2003)
815 ORDER by Honorable Lawrence K. Karlton ORDERING a hearing set for 10:30 11/12/03 to discuss instituting the remedial plan (cc: all counsel) (ndd) (Entered: 10/30/2003)
816 MINUTE ORDER by CRD: in−court hearing RESET from 10:30 to 1:30 11/12/03 (cc: all counsel) (nac) (Entered: 11/05/2003)
817 ORDER by Honorable Lawrence K. Karlton ORDERING dfts to file, not later than 11/18/03, a proposed remedial plan consistent with the court's 06/13/02 and 07/23/03 orders and the constitutional requirements identified therein; The in−court hearing RESET from 11/12/03 to 1:30 12/1/03 ; At that hearing, the court will consider dfts' proposed remedial plan and pltfs' objections (cc: all counsel) (nac) (Entered: 11/05/2003)
818 NOTICE by dfts Gray Davis, − Presley, − Alameida, − Daly, − Angele, Hossie Welch, − Lawin, − Moore of substitution of dft Davis with Schwarzenegger (bd) (Entered: 11/18/2003)
LODGED stipulated order for permanent injunctive relief (nac) (Entered: 11/19/2003)
819 STIPULATED MOTION for preliminary approval of class action settlement by plaintiffs motion TO BE HEARD by Honorable Lawrence K. Karlton ; Motion Hearing Set For 12/1/03; Request for order shortening time to hear the motion (ndd) (Entered: 11/25/2003)
820 DECLARATION of Michael Bien in support of Motion for preliminary approval of class action settlement [819−1] (ndd) (Entered: 11/25/2003)
LODGED proposed order granting motion for preliminary approval of class action settlement, and scheduling hearing on final settlement approval (nac) (Entered: 12/01/2003)

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 90 of 168

12/01/2003 12/02/2003 12/03/2003
12/30/2003 12/30/2003 12/30/2003 12/30/2003 12/30/2003 12/30/2003 12/30/2003 12/30/2003 01/07/2004 01/08/2004 01/09/2004 01/09/2004 01/09/2004 01/09/2004 01/09/2004 01/09/2004

830 MINUTES of hearing on remedial plan before Honorable Lawrence K. Karlton: further status set for 03/01/04 @ 2:30; court order to follow (old) (Entered: 01/05/2004)
LODGED proposed order granting motion for preliminary approval of class action settlement and scheduling hearing on final settlement approval by pltfs (nac) (Entered: 12/03/2003)
821 ORDER by Honorable Lawrence K Karlton: Motion for Preliminary Approval of class action settlement GRANTED; no later than 12/29/03, dfts must file &serve on pltfs' counsel an Affidavit affirming that they published notice as required in this Order; final approval of hearing pursuant to FRCP 23(e) will be in Courtroom of District Judge Lawrence K Karlton on 3/8/04 at 10:00; Briefs in support of final approval shall be filed on or before 2/19/04; pltfs' Motion for Reasonable Attorneys' Fees &Expenses shall be filed and served no later than 4/2/04; dfts' Response to fees motion shall be filed no later than 4/30/04; pltfs' Reply shall be filed and served no later than 5/28/04; Hearing on Motion for Attorneys' Fees &Expenses shall be held on 6/7/04 Scheduling Conference for 2:30 3/1/04 (cc: all counsel) (mm1) (Entered: 12/03/2003)
822 NOTICE of Substitution of dfts: Roderick Q Hickman is substituted for Robert Presley; Richard Rimmer is substitued for Ed Alameida; Sharon Jackson is now the Acting Deputy Director of CDC (ndd) (Entered: 12/31/2003)
823 STIPULATION and Agreement regarding Alternatives to Parole Revocation by the parties (ndd) (Entered: 12/31/2003)
824 NOTICE of Publication of Settlement Notice by defendants (ndd) (Entered: 12/31/2003)
825 DECLARATION of John van de Erve Re Publication of Class−Action Settlement Notice [824−1] (ndd) (Entered: 12/31/2003)
826 DECLARATION of Terry Farmer Re Publication of Class−Action Settlement Notice [824−1] (ndd) (Entered: 12/31/2003)
827 MOTION to accept late filing of declarations re Publication of Settlement by defendants (ndd) (Entered: 12/31/2003)
828 DECLARATION of Thomas Patterson in support of dfts' Motion to accept late filing of declarations re Publication of Settlement Notice [827−1] (ndd) (Entered: 12/31/2003)
829 PROOF OF SERVICE by defendants of [828−1], [827−1], [826−1], [825−1], [824−1], [823−1], [822−1] (ndd) (Entered: 12/31/2003)
832 OBJECTIONS to settlement agreement (bd) (Entered: 01/09/2004)
833 OBJECTIONS to settlement agreement (bd) (Entered: 01/09/2004)
831 ORDER by Honorable Lawrence K Karlton: defendants' Motion to Accept Late Filing of Declarations re Publication of Settlement Notice [827−1] GRANTED (cc: all counsel) (mm1) (Entered: 01/09/2004)
834 LETTER to court from Ernest Howard Sharpley III regarding fairness of settlement hearing (pw) (Entered: 01/12/2004)
835 LETTER to court from Michael Bautta regarding the fairness of the settlement (pw) (Entered: 01/12/2004)
836 LETTER to court from D Enquist requesting any and all information on this case (pw) (Entered: 01/12/2004)
837 LETTER to court from L P requesting more information about this case (pw) (Entered: 01/12/2004)
838 RESPONSE by Maham stating new revocations terms is fair (pw) Modified on 01/13/2004 (Entered: 01/12/2004)

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 91 of 168

01/09/2004 01/12/2004 01/12/2004 01/12/2004 01/12/2004 01/12/2004 01/12/2004 01/12/2004 01/12/2004 01/14/2004 01/14/2004 01/14/2004 01/14/2004 01/14/2004 01/14/2004 01/15/2004 01/15/2004 01/15/2004 01/16/2004 01/16/2004 01/16/2004 01/16/2004 01/20/2004
01/20/2004 01/20/2004

839 RESPONSE by Bobbie Thomas of fairness of class action suit (pw) (Entered: 01/12/2004)
840 OBJECTIONS to settlement agreement (bd) (Entered: 01/13/2004)
841 LETTER addressed to Arnold Schwarzenegger requesting assistance from him (bd) Modified on 01/13/2004 (Entered: 01/13/2004)
842 LETTER to court with undetermined opinion regarding the fairness of settlement agreement (bd) Modified on 01/13/2004 (Entered: 01/13/2004)
843 LETTER to court re experiences with parole revocation system (bd) (Entered: 01/13/2004)
844 OBJECTIONS to the settlement agreement from Scott Weaver (ndd) (Entered: 01/13/2004)
845 LETTER to court from Daniel Hamilton Sterling requesting information from BPT on any changes and reduction in sentence in his case (ndd) (Entered: 01/13/2004)
846 RESPONSE from Renee Santos re the Settlement and unfair charge she received (ndd) (Entered: 01/13/2004)
847 LETTER to court from Anthony Weeks re the settlement and his inquiry re Mercy release for people with AID (ndd) (Entered: 01/13/2004)
848 LETTER to court from Ernesto Amayo request for more information re Settlement (ndd) (Entered: 01/15/2004)
849 LETTER to court from a Ashanti requesting for a copy of the settlement (ndd) (Entered: 01/15/2004)
850 LETTER to court from Hector Torres re Board of Prison Term (ndd) (Entered: 01/15/2004)
851 OBJECTIONS to the Settlement by Albert D Long (ndd) (Entered: 01/15/2004)
852 OBJECTIONS to the Settlement by Paul Staffiero (ndd) (Entered: 01/15/2004)
853 LETTER to court from Librado Solano Jr re his rights being violated by Parole Board (ndd) (Entered: 01/15/2004)
854 OPPOSITION by dfts to pltf Pleasant's motion for order directing pltf's release (nac) (Entered: 01/16/2004)
855 LETTER to court from Kelly Richardson regarding her experiences with the parole screening process (nac) (Entered: 01/16/2004)
856 LETTER to court from Than Nquyen regarding the parole system (nac) (Entered: 01/16/2004)
857 LETTER to court from Jon Davis re his own situation and request for court's advice (ndd) (Entered: 01/20/2004)
858 REQUEST (MOTION) for intervention under FRCP Rule 24(a) by prisoner Terry Pleasant (mdk) (Entered: 01/20/2004)
859 LETTER to court from prisoner John L Davenport (mdk) (Entered: 01/20/2004)
860 OBJECTION of class member Roland Kramer (mdk) (Entered: 01/20/2004)
861 LETTER to court from Robert J Sizuela agreed with terms of the settlement; his question is how and why the court decides the attorneys fees (ndd) (Entered: 01/21/2004)
862 OBJECTIONS to the Settlement Agreement by Terry Cranford (ndd) (Entered: 01/21/2004)
863 LETTER to court from Mare Johnson requesting for information about the case (ndd) (Entered: 01/21/2004)

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 92 of 168

01/20/2004 01/20/2004 01/20/2004 01/20/2004 01/21/2004 01/21/2004 01/21/2004 01/21/2004 01/21/2004 01/22/2004 01/22/2004 01/22/2004 01/22/2004 01/22/2004 01/22/2004 01/22/2004 01/22/2004 01/23/2004
01/23/2004 01/23/2004 01/23/2004 01/23/2004 01/23/2004 01/23/2004

864 LETTER to court from Eduardo Perez requesting to be a member of the case (ndd) (Entered: 01/21/2004)
865 LETTER to court from Rueben Roberts re his opinion about parole (ndd) (Entered: 01/21/2004)
866 LETTER to court from prisoner Timothy Ralbovsky regarding this case and his inmate appeal (mdk) (Entered: 01/21/2004)
867 AFFIDAVIT of Facts Constituting Contempt signed by Henry Aguilar re OSC (ndd) (Entered: 01/21/2004)
868 LETTER to court from Michael A Cook and his wife re Parole hearing (ndd) (Entered: 01/22/2004)
869 OBJECTIONS to the settlement from unnamed inmate (ndd) (Entered: 01/22/2004)
870 LETTER to court from Wesley Jones requesting information for filing civil rights (ndd) (Entered: 01/22/2004)
871 OBJECTIONS to Settlement from Francisco Funes (ndd) (Entered: 01/22/2004)
872 OBJECTION by prisoner Terry Pleasant to settlement proposal (mdk) (Entered: 01/22/2004)
873 OBJECTION by prisoner Derrick Dennis for settlement (mdk) (Entered: 01/23/2004)
874 REQUEST by prisoner Chris Bloomer for information regarding assigned attorneys and "the new law" (nac) (Entered: 01/23/2004)
875 REQUEST by prisoner Lorenzo Arteaga for filed copies of all proceedigns (nac) (Entered: 01/23/2004)
876 OBJECTIONS by prisoner Darin Suthern for settlement (nac) (Entered: 01/23/2004)
877 OBJECTIONS by prisoner Robert F Almeida Jr. to settlement (nac) (Entered: 01/23/2004)
878 OBJECTIONS by prisoner Edward Espinoza to settlement (nac) (Entered: 01/23/2004)
879 OBJECTIONS by prisoner Allen J. Denton to settlement (nac) (Entered: 01/23/2004)
880 LETTER to court from prisoner Anna Chapman regarding her attempted suicide (nac) (Entered: 01/23/2004)
881 ORDER by Honorable Lawrence K. Karlton ORDERING the Clerk is directed to SERVE a copy of the motion on class counsel [858−1]; counsel for pltfs is directed to SERVE a copy of this order on class member Terry Pleasant (cc: all counsel) (ljr) (Entered: 01/23/2004)
882 LETTER to court from prisoner Oscar Fabian Tenorio regarding settlement (mdk) (Entered: 01/26/2004)
883 LETTER to court from prisoner Regan Phillips regarding his issues pertaining to the settlement (mdk) (Entered: 01/26/2004)
884 LETTER to court from prisoner Maurice Van Roberdson requesting a copy of the lawsuit (mdk) (Entered: 01/26/2004)
885 LETTER to court from prisoner Gary Beltran regarding settlement (mdk) (Entered: 01/26/2004)
886 LETTER to court from prisoner Kenneth Dawson regarding settlement (mdk) (Entered: 01/26/2004)
887 OBJECTION by prisoner Shane Patrick Read to settlement (mdk) (Entered: 01/26/2004)

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 93 of 168

01/23/2004 01/23/2004 01/23/2004
01/23/2004
01/23/2004
01/23/2004
01/26/2004 01/26/2004 01/26/2004 01/26/2004 01/26/2004 01/26/2004 01/26/2004 01/26/2004 01/26/2004 01/28/2004
01/28/2004 01/28/2004 01/28/2004 01/28/2004 01/28/2004

888 LETTER to court from prisoner Hamid Cobb regarding settlement (mdk) (Entered: 01/26/2004)
889 LETTER to court from prisoner Kenneth Dawson regarding fairness of settlement (mdk) (Entered: 01/26/2004)
890 MOTION for permission to file brief of San Diego Criminal Defense Bar Assoc and of Criminal Defense Lawyers Club of San Diego as Amicus Curiae on behalf of pltf class of parolees motion TO BE HEARD by Honorable Lawrence K. Karlton; Motion Hearing Set For 10:00 3/8/04 (mdk) (Entered: 01/26/2004)
891 BRIEF of San Diego Criminal Defense Bar Assoc and of Criminal Defense Lawyers Club as Amicus Curiae on behalf of pltf class of parolees [890−1] (mdk) (Entered: 01/26/2004)
892 AFFIDAVIT of Michael J McCabe in support motion for permission to file brief of Criminal Defenses Lawyers Club of San Diego as Amicus Curiae on behalf of pltf class of parolees [890−1] (mdk) (Entered: 01/26/2004)
893 AFFIDAVIT of Steven E Feldman regarding motion for permission to file brief of San Diego Criminal Defense Bar Assoc as Amicus Curiae on behalf of pltf class of parolees [890−1] (mdk) (Entered: 01/26/2004)
894 LETTER to court from inmate Allen R Garcia regarding settlement and his petition for habeas corpus (mdk) (Entered: 01/27/2004)
895 LETTER to court from inmate Michael McKelly regarding settlement (mdk) (Entered: 01/27/2004)
896 LETTER to court from inmate Kedel Isaac Tafoya Jr regarding settlement (mdk) (Entered: 01/27/2004)
897 LETTER to court from Clarence Sanders regarding his situation and the settlement (mdk) (Entered: 01/27/2004)
898 LETTER to court from Roy Hines reqesting a copy of the proposed bill (mdk) (Entered: 01/27/2004)
899 LETTER to court from inmate Gerald Walling regarding his comments on the settlement (mdk) (Entered: 01/27/2004)
900 LETTER to court from Mark Ferrel regarding settlement (mdk) (Entered: 01/27/2004)
901 LETTER to court from inmate Anna English regarding settlement (mdk) (Entered: 01/27/2004)
902 LETTER to court from inmate Rose Mesa objecting to the settlement (mdk) (Entered: 01/27/2004)
903 ORDER by Honorable Lawrence K. Karlton ORDERING motion for permission to file brief of San Diego Criminal Defense Bar Assoc and of Criminal Defense Lawyers Club of San Diego as Amicus Curiae on behalf of pltf class of parolees [890−1] GRANTED (cc: all counsel) (ljr) (Entered: 01/28/2004)
904 OBJECTION by inmate Shawn G Bautista to settlement (mdk) (Entered: 01/29/2004)
905 NOTICE of change of address for Shawn Bautista to 1325 Kimberly Drive San Jose CA 95118 (mdk) (Entered: 01/29/2004)
906 LETTER to court from Rolando Cerda requesting more information regarding the settlement (mdk) (Entered: 01/29/2004)
907 LETTER to court from Jason T PreNumsro regarding fairness of the settlement (mdk) (Entered: 01/29/2004)
908 LETTER to court from Douglas R Ferrence regarding settlement (mdk) (Entered: 01/29/2004)

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 94 of 168

01/28/2004 01/29/2004 01/29/2004 01/29/2004 01/29/2004 01/30/2004 01/30/2004 01/30/2004 01/30/2004 01/30/2004 01/30/2004 01/30/2004 01/30/2004 02/02/2004 02/02/2004 02/02/2004 02/02/2004 02/02/2004 02/02/2004
02/02/2004 02/02/2004 02/02/2004 02/02/2004 02/02/2004

909 LETTER to court from Sandra Robinson regarding settlement (mdk) (Entered: 01/29/2004)
910 LETTER to court from inmate Brian J Patterson regarding fairness of settlement (mdk) (Entered: 01/30/2004)
911 LETTER to court from Geneva Jones regarding settlement and Shasta County Jail conditions (mdk) (Entered: 01/30/2004)
912 OBJECTIONS by William James Mahy to the settlement (mdk) (Entered: 01/30/2004)
913 LETTER to court from several inmates at Pitches Detention Center stating that they think the settlement is fair (mdk) (Entered: 01/30/2004)
914 OBJECTIONS by inmate Craig Chan to settlement (nac) (Entered: 02/02/2004)
915 OBJECTIONS from inmate M. Smith to settlement (nac) (Entered: 02/02/2004)
916 OBJECTIONS from inmate Michael Whitfield to settlement (nac) (Entered: 02/02/2004)
917 OBJECTIONS from inmate Gary Lee Hicks to settlement (nac) (Entered: 02/02/2004)
918 OBJECTIONS from inmate Dennis Rollins to settlement (nac) (Entered: 02/02/2004)
919 OBJECTIONS from inmate Richard Fitzhugh to settlement (nac) (Entered: 02/02/2004)
920 LETTER to court from inmate Raymond Salcido Gonzales regarding his parole status (nac) (Entered: 02/02/2004)
921 LETTER to court from inmate Jorge Lopez Bucio requesting assistance regarding the settlement (nac) (Entered: 02/02/2004)
922 LETTER to court from Terrence K Stell in favor of settlement and disagreed of attorneys' fees (ndd) (Entered: 02/03/2004)
923 LETTER to court from Jose Manuel Perez inquired about modification of his sentence (ndd) (Entered: 02/03/2004)
924 LETTER to court from Derrick Jefferson in agreement with the settlement (ndd) (Entered: 02/03/2004)
925 LETTER to court from Lawrence W Orcasitas re his own revocation hearing and in favor of the settlement (ndd) (Entered: 02/03/2004)
926 LETTER to court from James W Roberts is in favor of the settlement (ndd) (Entered: 02/03/2004)
927 LETTER to court from Nickie Patton III re his experience with parole and requesting info on how to send a letter to CA governor concerning parole unfairness (ndd) (Entered: 02/03/2004)
928 LETTER to court from Latuan M Harris is in favor of the settlement (ndd) (Entered: 02/03/2004)
929 LETTER to court from Edward Mason re his opinion of the alleged offenses filed by the P &CSD (ndd) (Entered: 02/03/2004)
930 OBJECTIONS to the settlement by Teresa Humphrey (ndd) (Entered: 02/03/2004)
931 LETTER to court from Clyde M Blackmon enclosed an affidavit of Jerry Valdivia (ndd) (Entered: 02/03/2004)
932 AFFIDAVIT of Jerry Valdivia that he was not provided a copy of the proposal of settlement and his objections to the settlement (ndd) (Entered: 02/03/2004)

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 95 of 168

02/02/2004
02/02/2004 02/04/2004
02/04/2004 02/04/2004 02/04/2004 02/04/2004
02/04/2004 02/04/2004 02/05/2004 02/05/2004 02/05/2004 02/05/2004 02/05/2004 02/05/2004 02/06/2004 02/06/2004
02/06/2004 02/06/2004
02/06/2004 02/06/2004

933 MOTION to intervene from Lorenzo Arteaga with timely objections to all proceedings; motion to intervene on the grounds that include substantive and procedural due process and equal protection constitutional violations (ndd) (Entered: 02/03/2004)
934 LETTER to court from Juan Cruz Galindo (in Spanish) requesting help in his case and he wanted to join the case (ndd) (Entered: 02/03/2004)
935 LETTER to court from Randall Emmons (K−79897) indicating that he will soon file a petition for writ of hc and informing court of the details of his case re Valdivia settlement (bd) (Entered: 02/05/2004)
936 OBJECTIONS to the Settlement from Shawn Bautista (ndd) (Entered: 02/05/2004)
937 LETTER to court from Thomas R Arbour requesting to be released from prison (ndd) (Entered: 02/05/2004)
938 LETTER to court from J Bracamonte is in favor of the settlement (ndd) (Entered: 02/05/2004)
939 LETTER to court from Michael A Cook that he was written up for violation of grooming standards policy and requesting to be released from CMC (ndd) (Entered: 02/05/2004)
940 LETTER to court from William M Bell Jr is in favor of the settlement and requesting for assistance (ndd) (Entered: 02/05/2004)
941 LETTER to court from female prisoners requesting long term drug treatment and rehab (ndd) (Entered: 02/05/2004)
942 LETTER to court from Michael A Cook regarding his violation for going home to his children (ndd) (Entered: 02/06/2004)
943 OBJECTIONS to the settlement agreement from Kevin Robinson (ndd) (Entered: 02/06/2004)
944 LETTER to court from Chuck Neil regarding his mistreatment by Parole Board at Donavan Prison (ndd) (Entered: 02/06/2004)
945 LETTER to court from John Ward is in favor of the settlement but he objects to the attorneys' fees (ndd) (Entered: 02/06/2004)
946 OBJECTIONS to the settlement by David L Armstrong (ndd) (Entered: 02/06/2004)
947 LETTER to court from Paul Ramirez is in favor to the settlement (ndd) (Entered: 02/06/2004)
948 LETTER to court from John Joe Torres H−34295 agreeing with terms of proposed settlement (bd) (Entered: 02/09/2004)
949 LETTER to court from John Michel that he should be put on special treatment program instead of punishing and he would like to have more information about this case (ndd) (Entered: 02/09/2004)
950 LETTER to court from Rodney William Bailey re his own parole experience and he is in favor of the settlement (ndd) (Entered: 02/09/2004)
951 LETTER to court from Ron Miller, Chris Deason, Mieach Mesa, Emilio Johnson, Manny Paredes, John Rivera, Mike Mim, Johnny Moreno, Howard Wyatt, Ronnie Crawford, William Rorro are in favor of the settlement and attorneys' fees (ndd) (Entered: 02/09/2004)
952 LETTER to court from Steve Ramirez is in favor of the settlement (ndd) (Entered: 02/09/2004)
953 LETTER to court from James S Hall's comments and arguments on permanent injunctive relief; Requesting for additional injunctive relief (ndd) (Entered: 02/09/2004)

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 96 of 168

02/09/2004
02/09/2004
02/09/2004 02/09/2004 02/09/2004 02/09/2004 02/09/2004 02/09/2004 02/09/2004 02/09/2004 02/09/2004 02/09/2004 02/09/2004 02/09/2004 02/09/2004 02/09/2004 02/09/2004 02/09/2004
02/09/2004 02/09/2004 02/09/2004 02/09/2004 02/09/2004

954 LETTER to court from Marion A Carl requesting to join in the settlement; he was told by Parole Board that he's now serving an indeterminate parole violation (ndd) (Entered: 02/10/2004)
955 LETTER to court from Bruce Alan Madison requesting for an extension, other than 2/9/04 deadline, so that he could comply; he requests to be placed at God Cares Ministries (ndd) (Entered: 02/10/2004)
956 LETTER to court from Denneth D Dawson's comments on Fairness of Settlement (ndd) (Entered: 02/10/2004)
957 LETTER to court from Joseph Cadena is in favor of the settlement (ndd) (Entered: 02/10/2004)
958 OBJECTIONS to the settlement by Andrew Jimenez (ndd) (Entered: 02/10/2004)
959 COMMENTS on Fairness of settlement and OBJECTIONS to the settlement by Carlos Martinez (ndd) (Entered: 02/10/2004)
960 Comments and Additional arguments on permanent injunctive relief from Ivan Von Staich; Request for additional injunctive relief (ndd) (Entered: 02/10/2004)
961 Joinder from Charles R Fletcher in the settlement (ndd) (Entered: 02/10/2004)
962 LETTER to court from unnamed inmate is in favor of the settlement (ndd) (Entered: 02/10/2004)
963 LETTER to court from Andres Santana re his own situation (ndd) (Entered: 02/10/2004)
964 LETTER to court from Roderick E Gray re attorney's fee (ndd) (Entered: 02/10/2004)
965 LETTER to court from Johnny Joe Torres re parole's process and his favor of the settlement (ndd) (Entered: 02/10/2004)
966 LETTER to court from Ralph J Gomez re Parole and his favor of passing attorney's fees to dfts (ndd) (Entered: 02/10/2004)
967 LETTER to court from David E Thomas thinks the settlement is fair for parolees (ndd) (Entered: 02/10/2004)
968 LETTER to court from Robert E Wright is in favor of the settlement (ndd) (Entered: 02/10/2004)
969 LETTER to court from Frank J Mazur III is in favor of the settlement (ndd) (Entered: 02/10/2004)
970 LETTER to court from Tracy Walker requesting assistance from District Court (ndd) (Entered: 02/10/2004)
971 LETTER to court from James R Potter II is in favor of the settlement; however he is disappointed that the case only goes part of the distance with a 10 day good cause hearing (ndd) (Entered: 02/10/2004)
972 LETTER to court from Timothy P Ralbovsky is in favor of the settlement (ndd) (Entered: 02/10/2004)
973 LETTER to court from Marc Sturdivant re his own experience and requesting court's assistance (ndd) (Entered: 02/10/2004)
974 LETTER to court from Xofi Fenderson stating the settlement "sounds like it could be fair" (pw) (Entered: 02/10/2004)
975 LETTER to court from Tina Gilbert stating "this class action law suit is the best thing that has happened for parolees" (pw) (Entered: 02/10/2004)
976 LETTER to court from Steve Marin addressing the fairness of the settlement (pw) (Entered: 02/10/2004)

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 97 of 168

02/09/2004 02/09/2004 02/09/2004 02/10/2004
02/10/2004
02/10/2004
02/10/2004 02/11/2004 02/11/2004 02/11/2004
02/11/2004 02/11/2004 02/11/2004
02/11/2004
02/11/2004
02/11/2004
02/11/2004 02/11/2004 02/11/2004 02/11/2004 02/11/2004

977 LETTER to court from Randal Ruiz offering "some security against bureacratic tyranny" as in Tidewater v Bradshaw (pw) (Entered: 02/10/2004)
978 LETTER to court from Donlald Shipp requesting advice as to how to handle mistreatment at Salinas Valley State Prision (pw) (Entered: 02/10/2004)
979 LETTER to court from Reverend Joyce Ann Gaines requesting assistance on how to free her son from the entrapment at the County Jail (pw) (Entered: 02/10/2004)
980 LETTER to court from Keith Bulkin Jr is in favor of the settlement; he believe that parolees should be given greater treatment options instead of prison and attorneys fees should not be paid by parolees (ndd) (Entered: 02/11/2004)
981 LETTER to court from Merlin Draper and Robert Cahoy that the settlement is just the beginning and it needs improvement; the parole should have a more strict and rigid guideline and a probable hearing should be held in the first place (ndd) Modified on 02/11/2004 (Entered: 02/11/2004)
982 LETTER to court from counsel Benjamin Pavone for plt Alfred Yancy requesting an extension of 2/9/04 deadline up, to and including 2/23/04, to file a response to the settlement (ndd) (Entered: 02/11/2004)
983 OBJECTIONS to the settlement by Center on Juvenile and Criminal Justice (ndd) (Entered: 02/11/2004)
984 LETTER to court from E−Shan Kinsey re his own case and his option to accept Proposition 36 (ndd) (Entered: 02/12/2004)
985 OBJECTIONS to the settlement by Joseph Woods (ndd) (Entered: 02/12/2004)
986 LETTER to court from Rene L Gonzalez believes that the changes will help prison over population and provide help to the non−violent addicts; the state should pay all attorney fees for the simple fact many inmates or parolees don't have the means to pay (ndd) (Entered: 02/12/2004)
987 LETTER to court from Eddie Butler believes the changes in the parole systems are good and he agrees to the award of attorneys fees (ndd) (Entered: 02/12/2004)
988 LETTER to court from Paul Hebbe receives no response from plt's counsel re his comments to the settlement (ndd) (Entered: 02/12/2004)
989 LETTER to court from Carrea Christopher Jr that the CDC ignored the ruling of Valdivias v Schwarzenegger and has held him over 70 days without a hearing (ndd) (Entered: 02/12/2004)
990 LETTER to court from Carl Reed Goff requesting the court to order the dfts to release him from unlawful incarceration, to reduce his parole period and grant him any other remedy permitted by law (ndd) (Entered: 02/12/2004)
991 LETTER to court from Gina Cefaratti re her son's situation and asking the court to change the parole system to make it better for the future generation (ndd) (Entered: 02/12/2004)
992 LETTER to court from he thinks the CDC keeps snatching him away from his family and that this systematic but unfar mean that CDC measure to violators in the name of the dollar (ndd) (Entered: 02/12/2004)
993 OBJECTIONS to the Settlement by Jerome Lee (ndd) (Entered: 02/12/2004)
994 OBJECTIONS to attorney's fee (ndd) (Entered: 02/12/2004)
995 LETTER to court from Lejon D Peterson Sr that the CDC never honors the Title 15 set by Parole system itself and requesting help (ndd) (Entered: 02/12/2004)
996 LETTER to court from Richard J Allen re his corrections being made to meet the 2/9/04 deadline (ndd) (Entered: 02/12/2004)
997 LETTER to court from Breon M Jordan that he believes he has been targeted by parole agents in having them meet some kind of quota or prejudice in their actions toward him due to an prior conviction; he will be in contact with plts' attys and

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 98 of 168

02/11/2004 02/12/2004 02/12/2004 02/12/2004
02/12/2004 02/13/2004 02/13/2004 02/17/2004
02/17/2004 02/17/2004 02/17/2004 02/17/2004
02/18/2004
02/18/2004 02/19/2004 02/19/2004 02/19/2004 02/19/2004 02/20/2004 02/20/2004

doing his best to meet this deadline (ndd) (Entered: 02/12/2004)

998 Second LETTER to court from counsel Benjamin Pavone requesting an extension of time, 2/23/04, to file response for plt A Yancy (ndd) (Entered: 02/12/2004)

999 LETTER to court from Gerald Haskin is in favor of the settlement (ndd) (Entered: 02/13/2004)

1000 LETTER to court from Robert P Jacobsen is in favor of the settlement (ndd) (Entered: 02/13/2004)

LODGED stipulated order to extend deadline for submission of briefs re final settlment approval by dfts Arnold Schwarzenegger, − Daly, − Angele, − Lawin, − Moore, Hickman, Rimmer, Jackson, Welch, Risen, and Cater (bd) (Entered: 02/13/2004)

1001 LETTER to court from Robert Ross re his case (ndd) (Entered: 02/13/2004)

1003 LETTER to court from Edward Davis regarding settlement (mdk) (Entered: 02/17/2004)

1004 LETTER to court from inmate Andres Santana regarding settlement (mdk) (Entered: 02/17/2004)

1002

ORDER by Honorable Lawrence K. Karlton ORDERING that the request for extenion of time, up to and including 2/23/04, for Mr Yancy to submit his views on the pending settlement [982−1] GRANTED; the Clerk is directed to serve a copy of this order on counsel for Mr Yancy, Benjamin Pavone, at Hazard Center Tower, 7676 Hazard Center Drive, Fifth Floor, San Diego, CA 92108 (cc: all counsel) (mdk) (Entered: 02/17/2004)

1005 MAIL returned: copy of correspondence from "Derrick Jefferson" re settlment fairness (bd) (Entered: 02/18/2004)

1006 LETTER to from inmate Johnny Joe Torres stating agreement with settlement terms for most part (mm1) (Entered: 02/18/2004)

1007 LETTER to from Eric Broussard regarding information of fairness memorandum of points &authorities in support (mm1) (Entered: 02/18/2004)

1008 STIPULATION AND ORDER by Honorable Lawrence K. Karlton brefing ddl EXTENDED to 2/27/04; hearing on final settlement approval [819−1] RESET FOR 10:00 3/8/04 (cc: all counsel) (ljr) (Entered: 02/18/2004)

LODGED Document: Stipulated order to extend the ddl for submission of briefs re final settlement approval lodged on 2/12/04 (NOT TO BE SIGNED PER JUDGE) (pw) (Entered: 02/18/2004)

1009 LETTER to court from inmate Peter Kramer regarding settlement (mdk) (Entered: 02/19/2004)

1010 LETTER to court from inmate Hector Torres regarding settlement (mdk) (Entered: 02/20/2004)

1011 LETTER to court from inmate Samuel Papian regarding settlement (mdk) (Entered: 02/20/2004)

1012 LETTER to court from several inmates regarding settlement (mdk) (Entered: 02/20/2004)

1013 LETTER to court from inmate David Tiger regarding settlement (mdk) (Entered: 02/20/2004)

LODGED Stipulated Order to continue the status conference by defendants (ndd) (Entered: 02/23/2004)

LODGED Document: Stipulated Order to continue status conference lodged on 2/20/04 (NOT TO BE SIGNED PER JUDGE) (ndd) (Entered: 02/26/2004)

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 99 of 168

02/23/2004 02/24/2004 02/26/2004
02/27/2004 02/27/2004
02/27/2004 02/27/2004 02/27/2004 02/27/2004 02/27/2004 03/01/2004 03/01/2004 03/01/2004 03/03/2004 03/03/2004 03/04/2004 03/05/2004 03/05/2004
03/05/2004 03/05/2004
03/08/2004 03/08/2004

1014 LETTER to court from Robert K Sanchez re Attorney's fees (ndd) (Entered: 02/23/2004)

1015 DECLARATION of Alfred Yancy re Settlement of class action (ndd) (Entered: 02/25/2004)

1016 ORDER by Honorable Lawrence K. Karlton ORDERING the status conference hearing CONTINUED from 03/01/04 to 2:00 5/3/04 (cc: all counsel) (nac) (Entered: 02/26/2004)

1017 BRIEF by defendants supporting Final Approval of the Stipulated Order for permanent injunctive relief [819−1] (ndd) (Entered: 03/01/2004)

1018 MEMORANDUM of Points and Authorities in support of Final Approval of Stipulated Order for permanent injunctive relief [819−1] by plts (ndd) (Entered: 03/01/2004)

1019 DECLARATION of Michael Bien in support of Final Approval of class action settlement [1018−1] (ndd) (Entered: 03/01/2004)

1020 DECLARATION of Karen Kennard in support of Final Approval of Stipulated Order for permanent injunctive relief [1018−1] (ndd) (Entered: 03/01/2004)

1021 DECLARATION of Rowan K Klein in support of Final Approval of the proposed settlement [1018−1] (ndd) (Entered: 03/01/2004)

1022 DECLARATION of Peter Keane in support of Final Approval of the proposed settlement [1018−1] (ndd) (Entered: 03/01/2004)

1023 PROOF OF SERVICE by plaintiffs of [1022−1], [1021−1], [1020−1], [1019−1], [1018−1] (ndd) (Entered: 03/01/2004)

LODGED Documents re Valdivias case (ndd) (Entered: 03/02/2004)

1024 LETTER to court from Matias Lopez re her parole violation (ndd) (Entered: 03/02/2004)

LODGED Document: Documents re Valdivia case lodged on 3/1/04 (NOT TO BE SIGNED PER JUDGE) (ndd) (Entered: 03/02/2004)

1025 OBJECTIONS to the settlement by keith Chambers (ndd) (Entered: 03/04/2004)

1026 DECLARATION of Karen L Snell in support of Final approval of stipulated order for permanent injunctive relief [1018−1] (ndd) (Entered: 03/04/2004)

1027 LETTER to court from Robert De Jackson requesting the court to send him all documents re the case (ndd) (Entered: 03/05/2004)

1028 DECLARATION of Rory K Little in support of Final Approval of class action settlement [819−1] (ndd) (Entered: 03/08/2004)

1029

LETTER to court from CA Atty for Criminal Justice regarding Rowan Klein's Affidavit [1021−1]; the organization support the court's earlier order directing preliminary probable cause hearings within 10 calendar days after a parolee's arrest and that a counsel should be appointed as soon as possible after a parolee's arrest (ndd) (Entered: 03/08/2004)

1030 LETTER to court from Maria Henry requesting the court to send her information re the case (ndd) (Entered: 03/08/2004)

1031 LETTER to court from Kimberly Diguardi re her own sentence of her first conviction; she thought that it would be better if there might be other options for her rather than state prison (ndd) (Entered: 03/08/2004)

1032 LETTER to court from Donald R Miller requesting the governor's address and a parolee handbook (ndd) (Entered: 03/09/2004)

1033 MINUTES of Final Approval and Fairness Hearing before Honorable Lawrence K. Karlton: no objectors present in court; court finds settlement fair and appropriate; settlement is approved [819−1]; GRANTED further status conference SET for 10:00 5/24/04 C/R C Bodene (ndd) (Entered: 03/09/2004)

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 100 of 168

03/09/2004
03/10/2004 03/10/2004 03/11/2004 03/12/2004 03/15/2004 03/15/2004 03/15/2004 03/16/2004 03/17/2004
03/17/2004
03/18/2004 03/18/2004 03/18/2004 03/19/2004 03/22/2004 03/22/2004 03/22/2004 03/24/2004

1034

[TERMINATED − see 1863 Order] STIPULATED ORDER for Permanent Injunctive Relief by Honorable Lawrence K. Karlton ORDERED that the court finds that this is not a "civil case with respect to prison conditions," as those terms are defined and applied in the Prison Litigation Reform Act (PLRA), and that therefore this order is not governed by the PLRA; dfts, their agents, employees and successors in office are ordered to comply with all the terms stated in this order (see order for details) (cc: all counsel) (ndd) Modified on 11/21/2013 (Michel, G). (Entered: 03/09/2004)

1035 Motion to intervene by Lorenzo Arteaga (ndd) (Entered: 03/11/2004)

1036 LETTER to court from Juan Franco Jr seeking help from the court to reduce his sentence (ndd) (Entered: 03/11/2004)

1037 MOTION to reset motion to intervene and motion for production of unconstitutionally and falsely imprisoned material witness by Lorenzo Arteaga (ndd) (Entered: 03/12/2004)

1038 LETTER to court from Brent D Vaughn Alves Sr suggestions re the revoketion process (ljr) (Entered: 03/15/2004)

1039 LETTER to court from several parolees regarding settlement proposal (mdk) (Entered: 03/16/2004)

1040 LETTER to court from inmate Armando Rodriguez regarding case (mdk) (Entered: 03/16/2004)

1041 LETTER to court from inmate Tracy Walker regarding case (mdk) (Entered: 03/16/2004)

1042 LETTER to court from inmate Bill Stokes regarding case (nac) (Entered: 03/17/2004)

1043 ORDER by Honorable Lawrence K Karlton: Notice entitled "Motion to Intervene" [1035−1] DENIED; any future filings by Mr Arteaga shall be placed in file and DISREGARDED; Clerk directed to serve copy of this Order on Lorenzo Arteaga (E−66703) (cc: all counsel) (mm1) (Entered: 03/17/2004)

1044

STIPULATION AND ORDER by Honorable Lawrence K. Karlton ORDERING the stipulated order for permanent injunctive relief GRANTED; By 05/24/04 the parties are ordered to lodge with the court a proposed form of final notice to pltfs Class which shall also resolve the two issues remaining for resolution; The status conference set for 05/03/04 VACATED (cc: all counsel) (nac) (Entered: 03/17/2004)

LODGED [proposed] order granting final approval of stipulated order for permanent injunctive relief (mdk) (Entered: 03/18/2004)

1050 LETTER to court from counsel for plaintiff regarding Proposed Order Granting Final Approval of Stipulated Order for Permanent Injunctive Relief [0−0] (ndd) (Entered: 03/25/2004)

LODGED Document: Propoed Order Granting Final Approval lodged on 3/18/04 (NOT TO BE SIGNED PER JUDGE) (ndd) (Entered: 03/25/2004)

LODGED Stipulation and Proposed Order regarding Motion for reasonable attorneys' fees an expenses by defendants (ndd) (Entered: 03/22/2004)

1045 LETTER to court from Charlie Zawtow requesting a transcript of the hearing and asking how revocation hearing is going to change (ndd) (Entered: 03/23/2004)

1046 ORDER from 9th Circuit appeal [798−1] DISMISSED (ndd) (Entered: 03/23/2004)

1047 NOTICE of Redesignation of counsel for service by defendants (ndd) (Entered: 03/23/2004)

1048 STIPULATION AND ORDER by Honorable Lawrence K. Karlton ORDERED that the 4/2/04 date for a motion for reasonable attorneys' fees and expenses and the subsequent dates for response, reply and the 6/7/04 hearing are VACATED; in

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 101 of 168

03/25/2004 03/26/2004 03/26/2004 03/30/2004 04/02/2004 04/05/2004 04/07/2004 04/12/2004 04/13/2004
04/22/2004 04/26/2004 05/03/2004 05/07/2004 05/12/2004 05/21/2004 05/24/2004 05/24/2004 05/25/2004

addition, the time for submitting a bill of costs is suspended as to taxable costs incurred by plts' counsel, to allow costs to be sought concurrently with attorneys' fees and expenses; status conference re attorneys' fees and expenses is SET for 10:00 6/7/04 with a joint status conference statement due on 5/28/04 (cc: all counsel) (ndd) (Entered: 03/24/2004)

1049 NOTICE regarding copy of Complaint from case CIV.S−04−0277 GEB GGH P (ordered to be filed in this case by GGH) (mm1) (Entered: 03/25/2004)

1051 LETTER to court from Craig Ogans re his false charges (ndd) (Entered: 03/29/2004)

1052 LETTER to court from inmate Lorenzo Arteaga entitled "petition for rehearing of order and motion for new trial" (mdk) (Entered: 03/29/2004)

1053 LETTER to court from Tonia Kennard re her medical problem (ndd) (Entered: 03/31/2004)

1054 LETTER to court from inmate Allen Hope regarding this case (nac) (Entered: 04/05/2004)

1055 LETTER to court from inmate Kenneth Dawson regarding the settlement (nac) (Entered: 04/06/2004)

1056 LETTER to court from inmate Leonardo Muro Cervantes regarding the settlement (nac) (Entered: 04/08/2004)

LODGED Proposed Protective Order re plaintiffs' lead counsel's time records (ndd) (Entered: 04/13/2004)

1057

PROTECTIVE ORDER Re Plts' Lead Counsel's Time Records by Honorable Lawrence K. Karlton ORDERED that Time runs, summaries and all information contained therein (the "Fee/Costs Information:) shall, as to dfts, be regarded as confidential and subject to this protective order; plts' lead counsel may designate any Fee/Cost Information which is filed with the court for filing under seal; dfts, their counsel and their outside experts or consultants, shall not reveal this fee/Cost Information in any manner to any person other than those listed in paragraph 2 (See order for details) (cc: all counsel) (ndd) (Entered: 04/13/2004)

1058 LETTER to court from Robert Biggs requesting information re the new revocation hearing law, half time laws and laws to come in the month of June (ndd) (Entered: 04/23/2004)

1059 LETTER to court from Solin P League requesting help from the court to protect him from being harmed by parole officers (ndd) (Entered: 04/26/2004)

1060 LETTER to court from inmate Robert Ross regarding case (mdk) (Entered: 05/03/2004)

1061 LETTER to court from Raile Tilley informed the court that there is a discrepancy concerning the time to bring a parolee to the BPT Board and the actual time happened to him, 100 days (ndd) (Entered: 05/10/2004)

1062 LETTER to court from Harry Stephen requesting for more information re the case and the date of settlement (ndd) (Entered: 05/13/2004)

LODGED stipulation and proposed order regarding motion for reasonable attorneys' fees and expenses by dfts (nac) (Entered: 05/25/2004)

LODGED stipulation and proposed order regarding current lead counsels' motion for reasonable attorneys' fees and expenses (mdk) (Entered: 05/25/2004)

LODGED Stipulation and Order re Final Notice to plt class by plaintiffs (ndd) (Entered: 05/25/2004)

1063 STIPULATION AND ORDER by Honorable Lawrence K. Karlton ORDERING status conference currently set for 6/7/04 regarding attorney's fees VACATED ; the motion for pltfs' attorney's fees and expenses shall be briefed and argued according to the following schedule: motion due by 7/12/04, dfts' opposition due by 8/2/04,

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 102 of 168

05/26/2004
05/27/2004 05/28/2004 06/01/2004
06/02/2004 06/04/2004 06/04/2004 06/14/2004 06/18/2004 06/18/2004 06/24/2004 06/24/2004
06/24/2004 06/24/2004 06/28/2004
06/29/2004

pltfs' reply due by 8/16/04, and hearing shall be on 8/23/04 (cc: all counsel) (mdk) (Entered: 05/25/2004)

1064

STIPULATION AND ORDER by Honorable Lawrence K. Karlton ORDERED that the 5/24/04 status conference is VACATED ; the notices to plt Class attached hereto as Exh A and B shall be published in the manner described in this stipulation and dfts shall file and serve an affidavit affirming that they published the Notice as required in this order by no later than 6/24/04 (cc: all counsel) (ndd) (Entered: 05/26/2004)

1065 LETTER to court from Richard A Mongeon apprised the court that BOP disregarding any and all agreements in this case (ndd) (Entered: 05/28/2004)

1067 LETTER to court from Donald Hooker requesting info on this case (hk) (Entered: 06/01/2004)

1066 STIPULATION AND ORDER by Honorable Lawrence K. Karlton ORDERING status conference RESET from 6/1/04 to 1:30 9/13/04 regarding attorneys' fees and expenses , with a joint status conference statement due on 9/3/04 (cc: all counsel) (mdk) (Entered: 06/01/2004)

1068 LETTER to court from prisoner Glen Helen asking for information be sent to him regarding case (mdk) (Entered: 06/03/2004)

1069 LETTER to court from Hortenda Hernandez requesting information to the case (ndd) (Entered: 06/07/2004)

1070 LETTER to court from G Powell requesting information re the case, Constitution and Bill of Rights (ndd) (Entered: 06/07/2004)

1071 LETTER to court from Richard A Mongeon requesting a copy of the settlement of this case (ndd) (Entered: 06/15/2004)

1072 LETTER to court from Jorge E Mendoza Escutio requesting help to appeal his case (ndd) (Entered: 06/21/2004)

1073 LETTER to court from William Rocha re his situation and requesting help (ndd) (Entered: 06/21/2004)

1074 REQUEST by inmate Richard Mongeon for stipulated order for permanent injunctive relief to enforce case (mdk) (Entered: 06/25/2004)

1075 LETTER to court from counsel for plaintiffs requesting a hearing on shortened time be scheduled on 6/28/04 1:30pm regarding Stipulated Order for Permanent Injunctive [1034−1]; letter from plts' counsel to dfts' counsel attached (ndd) (Entered: 06/25/2004)

LODGED Amendment to Stipulation and Proposed Order re Final Notice to plt class (ndd) (Entered: 06/25/2004)

1076 LETTER to court from M Valdez requesting information re this case (ndd) (Entered: 06/28/2004)

1077

MINUTES of Implementation of Remedial Plan before Honorable Lawrence K. Karlton: Court is in receipt of letters re Implentation of remedial plan; parties have reached an impasse re implementation; court addresses both sides; dfts requested a 45 day extension of the 7/1/04 deadline parties stipulated to; plt opposes request; Cynthia Curry (senior staff counsel for Dept of General Services) takes the stand to address the court; Terry Farmer (Chief counsel for Board of Prison Terms) addresses the court, Mich Brady (Project Manager for Youth and Adult Correctional Agency) addresses the court; Glenn Fait (Associate Dean − Special counsel for McGeorge School of Law) addresses the court; dfts propose a meet and confer with opposing counsel and a further status in a week; court grants the request; Further Status conference SET for 1:30 7/7/04 C/R C Bodene (ndd) (Entered: 06/29/2004)

1079 TRANSCRIPT of 6/28/04 hearing on Implementation to remedial plan by C/R C Bodene (ndd) (Entered: 06/30/2004)

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 103 of 168

06/30/2004
06/30/2004 07/01/2004
07/01/2004 07/01/2004 07/01/2004 07/02/2004 07/06/2004 07/07/2004
07/07/2004 07/08/2004 07/08/2004 07/09/2004 07/09/2004 07/12/2004 07/14/2004 07/15/2004

1078

AMENDMENT STIPULATION AND ORDER by Honorable Lawrence K. Karlton ORDERED that the parties have agreed to amend the 5/26/04 stipulation and Order re Final Notice to plt class [1064−2] in the following respects: the Notice shall be completely disseminated to the Class no later than 45 days after dfts receive all Notice materials for reproduction; for members of the class who are California parolees in custody as alleged parole violators, the distribution of the short written Notice stated in paragraph 3(2)(3) and (d) of the 5/26 Stipulation and Order shall be done during a 30−day period only (Notice Period); no later than 30 days after the end of the Notice Period, dfts must file and serve on plts' counsel an affidavit affirming that they have published the Notice as required by the 5/26 Stipulation and Order and this Amendment to the Stipulation and Order (cc: all counsel) (ndd) (Entered: 06/30/2004)

1080 LETTER to court from Paul Pacheco that he's been in prison for 65 days and he has not been to parole screening (ndd) (Entered: 06/30/2004)

1081 NOTICE OF MOTION AND MOTION on shortened time for order finding dfts in violation of permanent injunction by plaintiffs ; motion TO BE HEARD by Honorable Lawrence K. Karlton ; Motion Hearing Set For 7/7/04 1:30pm (ndd) (Entered: 07/02/2004)

1082 DECLARATION of Michael W Bien in support of plts' Motion on shortened time for order finding dfts in violation of permanent injunction [1081−1] (ndd) (Entered: 07/02/2004)

1083 POLICIES AND PROCEDURES by dfts (bd) (Entered: 07/02/2004)

1084 ADDENDUM TO POLICIES AND PROCEDURES by dfts [1083−1] (bd) (Entered: 07/02/2004)

1085 LETTER to court from inmate Grace Peterson thanking the court for the information provided regarding this case (nac) (Entered: 07/06/2004)

LODGED stipulation and [proposed] order for periodic collection of attorneys' fees and costs (mdk) (Entered: 07/07/2004)

1086

STIPULATION AND ORDER by Honorable Lawrence K. Karlton: MOTION HEARING DATE of 7/7/04 VACATED WITHOUT PREJUDICE to pltfs' renoticing, re motion on shortened time for order finding dfts in violation of permanent injunction by pltfs [1081−1], scheduling conference VACATED (cc: all counsel) (mdk) (Entered: 07/07/2004)

1088 LETTER to court from counsel Michael Bien regarding stipulation and request that the hearing set for 7/7/04 be taken off calendar [1086−2] (mdk) (Entered: 07/08/2004)

1087 STIPULATION AND ORDER by Honorable Lawrence K. Karlton GRANTING periodic collection of attorneys' fees and costs (See Order for Details) (cc: all counsel) (mdk) (Entered: 07/08/2004)

1089 LETTER to court from inmate William Rocha regarding his concerns (mdk) (Entered: 07/09/2004)

LODGED Stipulation and Order re Plts' lead counsel's motion for reasonable attorneys' fees and expenses (ndd) (Entered: 07/12/2004)

1090 LETTER to court from Guillory Demetrius re court's clarification on the new parole revocational process and requesting that he be released immediately (ndd) (Entered: 07/12/2004)

1091 RESERVATION by plts re dfts' Policy and Procedure Drafts filed 7/1/04 [1084−1] [1083−1] (ndd) (Entered: 07/13/2004)

1093 LETTER to court from A Ward re his case and requesting help from the court (ndd) (Entered: 07/15/2004)

1092 STIPULATION AND ORDER by Honorable Lawrence K. Karlton ORDERED that the motion of plts' lead counsel, Bingham McCutchen, Rosen Bien and Asaro and the Prison Law Office, for an award of reasonable attorney's fees and expenses

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 104 of 168

07/16/2004 07/16/2004 07/22/2004 07/23/2004 07/26/2004 07/26/2004 07/28/2004
07/28/2004 08/02/2004 08/04/2004 08/11/2004 08/12/2004 08/12/2004 08/17/2004
08/18/2004 08/19/2004 08/20/2004
08/23/2004 08/25/2004

shall be briefed and argued according to the following schedule: plts' motion due 7/26/04; opposition due 8/9/04; reply due 8/16/04; hearing set for 10:00 8/23/04 (cc: all counsel) (ndd) (Entered: 07/15/2004)

1094 LETTER to court from William Rocha (ndd) (Entered: 07/19/2004)

1095 LETTER to court from Jorge E Mendoza requesting help (ndd) (Entered: 07/19/2004)

1096 LETTER to court from Edward Chandler requesting the court to enforce the BPT and CDC to comply with requirements (ndd) (Entered: 07/23/2004)

1097 LETTER to court from inmate Robert Killebrew requesting information on the permanent injunctive relief (mdk) (Entered: 07/26/2004)

LODGED stipulation and [proposed] order regarding pltfs' lead counsel's motion for reasonable attorneys' fees and expenses (mdk) (Entered: 07/27/2004)

1098 LETTER to court from inmate Jose Angel Valera requesting help in obtaining a parole hearing (mdk) (Entered: 07/27/2004)

1099

STIPULATION &ORDER by Honorable Lawrence K Karlton: pltfs' lead counsel's Motion for Reasonable Attorneys' Fees and Expenses shall be briefed and argued according to following schedule: lead counsel's Motion due 8/23/04; dfts' Opposition due 9/7/04; pltfs' Reply due 9/20/04; Hearing set for 10/4/04 Hearing re Motion VACATED on 7/28/04 (cc: all counsel) (mm1) (Entered: 07/28/2004)

1100 NOTICE of inmate Fredic Ferguson entitled "emergency complaint − not a lawsuit" (mdk) (Entered: 07/29/2004)

1101 LETTER to court from Joe Wiley requesting his writ be granted (ndd) (Entered: 08/03/2004)

1102 Motion for protective order by W Rocha (ndd) (Entered: 08/05/2004)

1103 LETTER to court from Joseph Nava requesting help from court and that he fits to Revocation Program (ndd) (Entered: 08/12/2004)

1104 Addendum to motion for protection by W Rocha (ndd) (Entered: 08/13/2004)

1105 LETTER to court from Byron Grimes that his due process right has been violated (ndd) (Entered: 08/13/2004)

LODGED stipulation and [proposed] order to extend time for pltfs' lead counsel's motion for an award of reasonable attorneys' fees and expenses by plaintiffs (mdk) (Entered: 08/18/2004)

1106 LETTER to court from inmate William Rocha regarding his situation pertaining to this case (mdk) (Entered: 08/19/2004)

1108 LETTER to court from Michael A. Reyes (hk) (Entered: 08/20/2004)

1107

ORDER by Honorable Lawrence K. Karlton ORDERING that the parties shall submit a stipulated motion for an award of attys' fees no later than 9/10/04; the time for pltfs' Lead Counsel's motion for an award of reasonable attys' fees is stayed until 9/17/04; motion hearing set for 10/4/04 (cc: all counsel) (hk) (Entered: 08/20/2004)

1109 LETTER to court from Joseph Nava requesting for help and that he is interested in the program (ndd) (Entered: 08/24/2004)

1110

STIPULATION AND ORDER by Honorable Lawrence K. Karlton ORDERED that the hearing set for 10:00 10/4/04 on the motion of plts' lead counsel, Bingham McCutchen, Rosen Bien and Asaro, and the Prison Law Office, for an award of reasonable attorneys' fees and expenses and the hearing schedule set forth in the order of 7/28/04 are vacated; the parties shall submit a Stipulated Motion for an award of reasonable attorneys' fees and expenses no later than 9/10/04; the time for plts' Lead Counsel's motion for an award of reasonable attorneys' fees and expenses, and for taxable costs is STAYED until 9/17/04, at which time plts' lead counsel shall submit a new briefing schedule to the court, if a briefing schedule is

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 105 of 168

08/25/2004 08/25/2004 08/27/2004 09/01/2004 09/01/2004 09/02/2004 09/03/2004 09/13/2004 09/13/2004 09/13/2004 09/14/2004 09/17/2004
09/17/2004
09/21/2004 10/07/2004 10/07/2004 10/08/2004 10/14/2004 10/20/2004

still necessary (cc: all counsel) (ndd) (Entered: 08/25/2004)

1111 MOTION to vacate order No 1043 by Lorenzo Arteaga (ndd) (Entered: 08/26/2004)

1112 LETTER to court from W Rocha (ndd) (Entered: 08/26/2004)

1131 PETITION for writ of habeas corpus by Jeffrey Malone (mdk) (Entered: 11/09/2004)

1113 LETTER to court from Fredric Ferguson (ndd) (Entered: 09/02/2004)

1114 LETTER to court from William Rocha (ndd) (Entered: 09/02/2004)

1117 MINUTES of telephonic conference before Honorable Lawrence K. Karlton re documents received by the court (old) (Entered: 09/15/2004)

1115 COURT LETTER from Hon LKK Forwarding class plt's complaint to counsel (Pet of habeas corpus from David Maulden attached) (cc: all counsel) (ndd) (Entered: 09/03/2004)

1116 STIPULATED MOTION for award of reasonable attorney fees motion TO BE HEARD by Honorable Lawrence K. Karlton; Motion Hearing not noticed (mdk) (Entered: 09/14/2004)

LODGED [proposed] findings of fact and conclusions of law regarding award of reasonable attorneys' fees to pltfs' lead counsel by plaintiffs (mdk) (Entered: 09/14/2004)

LODGED [proposed] order and judgment awarding reasonable attorneys' fees and expenses to pltfs' lead counsel by plaintiffs (mdk) (Entered: 09/14/2004)

1132 PETITION for writ of habeas corpus by Francis A Culotta (mdk) (Entered: 11/09/2004)

1118 ORDER by Honorable Lawrence K. Karlton GRANTING lodged findings of fact and conclusions of law regarding award of reasonable attorneys' fees to pltfs' lead counsel [0−0] (SEE ORDER FOR DETAILS) (cc: all counsel) (mdk) (Entered: 09/17/2004)

1119

ORDER by Honorable Lawrence K. Karlton ORDERING lodged order and judgment awarding attorney fees [0−0] GRANTED, motion for award of reasonable attorney fees [1116−1] GRANTED; reasonable attorneys' fees and expenses are awarded to pltfs' lead counsel in the aggregate amount of $6.5 million including principal and interest from 3/9/04 at the federal rate as of the date of this order; dfts shall pay the full amount no later than 11/15/04, and any amount unpaid after 11/15/04 interest shall accrue at the prime rate; this order is without prejudice to the separate claim for reasonable attorneys' fees and expenses of earlier lead counsel for the class which has not yet been resolved (cc: all counsel) (mdk) (Entered: 09/17/2004)

1125 NOTICE OF APPEAL from District Court decision re order [1043−1], and re stipulation and order [1034−1] ( fee status not paid ) (nac) (Entered: 11/03/2004)

LODGED Stipulation and Order setting status order re attorney fee motion scheduling (ndd) (Entered: 10/08/2004)

1120 NOTICE of redesignation of counsel; Attorney Benjamin Terrence Rice replacing attorney Maya Manian for dfts (nac) (Entered: 10/08/2004)

1133 PETITION for writ of habeas corpus by John Hamre (mdk) (Entered: 11/09/2004)

1121 STIPULATION AND ORDER by Honorable Lawrence K. Karlton scheduling conference regarding attorneys' fees and costs set for 1:30 10/20/04 (cc: all counsel) (ljr) (Entered: 10/14/2004)

1122 MINUTES of status conference re attorneys' fees and costs before Honorable Lawrence K. Karlton: settlement conference before Magistrate Judge Hollows SET for 11/05/04; Plaintiff is to file a motion re attorney's fees by 12/15/04; motion to be heard on 01/24/05; settlement conference set for 9:30 11/5/04 (old) (Entered:

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 106 of 168

10/22/2004
10/25/2004 11/03/2004 11/03/2004 11/05/2004 11/05/2004 11/09/2004
11/10/2004 11/15/2004 11/17/2004 11/19/2004 11/22/2004 11/29/2004 12/01/2004 12/03/2004

10/21/2004)

1123

ORDER by Honorable Lawrence K. Karlton ORDERING that a settlement conference set for 9:00 11/5/04 before Hon GGH ; counsel are directed to submit settlement conference statements to the settlement judge not later than 7 days prior to the conference; at counsel's option, such statements may be submitted in confidence; each party is directed to have a principal capable of disposition of the attorney's fees issue at the Settleemnt Conference or to be fully authorized to settle that matter on any terms and at the Settlement Conference; if the case does not settle at that time, counsel shall file her motion for attorney's fees not later than 12/15/04; the matter will be set for hearing on 1/14/05 before Hon LKK (cc: all counsel) (ndd) (Entered: 10/22/2004)

1124 NOTICE by Lorenzo Arteaga of request to appeal decision in case (bd) (Entered: 10/26/2004)

1126 MAILED case information/docket fee payment notice, copy of Notice of Appeal to 9th Circuit Court of Appeals, copy of appeal and docket sheet to all parties (nac) (Entered: 11/03/2004)

1127 BILL FOR FEES DUE: $255.00 appeal fee due re: appeal [1125−1] (nac) (Entered: 11/03/2004)

1128 DECLARATION of A Caton by defendants (mdk) (Entered: 11/08/2004)

1129 DECLARATION of G Rodriguez by defendants (mdk) (Entered: 11/08/2004)

1130

ORDER by Honorable Lawrence K. Karlton ORDERING that cases 04−cv−1464, 04−cv−1913, and 04−cv−2118 are hereby found to be related to Valdivia within the meaning of Local Rule 83−123; the Clerk is directed to reassign the cases to the undersigned, Judge Karlton; the Court further finds the cases appropriated candidates and CONSOLIDATES them, Case 94−cv−671 CONSOLIDATED with member cases 2:04−cv−1464, 2:04−cv−1913, 2:04−cv−2118 ; the Clerk is directed to copy the habeas petitions in the cases and to FILE and place those petiitons in this case; the Clerk is directed to administratively close cases 04−cv−1464, 04−cv−1913, and 04−cv−2118; the Clerk is further directed to SERVE a copy of the referenced habeas petitions on class counsel in Valdivia; and the petitioners are REFERRED to class counsel for appropriate motion to the Court, relief under the Remedial Plan, if appropriate, or response to petitioners (cc: all counsel) (mdk) (Entered: 11/09/2004)

LODGED stipulation and [proposed] orded confirming undisputed attorneys' fees and costs for the second quarter of 2004 (mdk) (Entered: 11/12/2004)

1137 NOTICE of motion and motions pending appeal by inmate Lorenzo Arteaga (nac) (Entered: 12/01/2004)

1134 STIPULATION AND ORDER by Honorable Lawrence K. Karlton ORDERED that the parties agree to the payment of $297,633.01 in fees and costs incurred during the Second Quarter of 2004 (cc: all counsel) (ndd) (Entered: 11/17/2004)

NOTIFICATION by 9th Circuit of Appellate Docket Number 95−80113 (appealed by Arteaga) (ndd) (Entered: 11/22/2004)

1138 NOTICE of preliminary injunction appeal by inmate Lorenzo Arteaga (nac) (Entered: 12/01/2004)

1135 MINUTES of settlement conference before Magistrate Judge Gregory G. Hollows: The case settled; The terms of settlement placed on the record; hearing dates VACATED ; Settlement agreement due by 01/28/05 (nac) (Entered: 11/30/2004)

1136 ORDER by Gregory G Hollows Magistrate Judge ORDERING that dfts have until 01/28/05 in which to obtain approval (or rejection) of the recommended settlement; Dft's decision shall be communicated to the court by close of business on that day (cc: all counsel) (pw) (Entered: 12/01/2004)

1139 NOTICE from inmate Lorenzo Arteaga for motion to vacate (mdk) (Entered: 12/06/2004)

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 107 of 168

12/05/2004 12/08/2004
12/13/2004 12/17/2004 01/13/2005
01/13/2005 01/13/2005
01/13/2005 01/18/2005 01/24/2005 01/24/2005 01/24/2005

1140 MOTION for Immediate Injunction and Release from incarceration by Anthony X Jackson (ndd) (Entered: 12/08/2004)

1141

ORDER by Honorable Lawrence K. Karlton ORDERING that the motion for immediate release by Anthony Jackson [1140−1] DENIED for the reasons set forth below: First, the class in the case is represented by counsel; accordingly, the court can only entertain motions made by and through counsel; second, "immediate release" is not a remedy currently available for alleged violations of the Settlement Agreement in Valdivia and even if it were, most of the terms of the Agreement do not go into effect until 1/1/2005 and therefore provide no relief to members of the class currently incarcerated; accordingly, class member Anthony Jackson's motion is DENIED; to the extent that movant seeks to obtain information regarding the settlement, he may contact class counsel Karen Kennard, at Bingham McCutchen LLP, Three Embarcardero Center, San Francisco CA 94111; Clerk is directed to serve a copy of this order on Anthony Jackson, X2769280, RCCC, 12500 Bruceville Rd, Elk Grove CA 95757 (cc: all counsel) (ndd) Modified on 9/30/2005 (Marciel, M). (Entered: 12/08/2004)

1142 MAIL returned [1141−1] addressed to Anthony Jackson, RCCC 12500 Bruceville Road, Elk Grove with notation "not in custody" (ndd) (Entered: 12/14/2004)

1143 ORDER from 9th Circuit appeal [1125−1] from L Arteaga DISMISSED (ndd) (Entered: 12/20/2004)

1144

Joint MOTION to SHORTEN TIME for Plaintiffs' Motion to Enforce Terms of Permanent Injunction by Alfred Yancy, Hossie Welch, Jerry Valdivia, Nghia Buckius, Mario Carillo, Phillip Castillo, George Cortes, Francis Culotta, David Dixon, Karl Horne, Scott Iroff, Walter − Jones, Mustafa Khalil, Raymond Latimore, Andre Lyons, Claude McDaniel, Nathan Morris, Edward Navarro, Steven O'Donohue, Ogwuobu Ojoir, Willie Patton, James − Robinson, Troy Scurry, Mark St John, Gregory Strong, Alfred Taylor, Christopher Thomas, Jimmy Watson, Curtis Williams. (Galvan, Ernest) (Entered: 01/13/2005)

1145 PROPOSED ORDER Proposed Order to Shorten Time. (Galvan, Ernest) (Entered: 01/13/2005)

1146

MOTION Order Directing Defendants to File Policies and Procedures by Alfred Yancy, Hossie Welch, Jerry Valdivia, Nghia Buckius, Mario Carillo, Phillip Castillo, George Cortes, Francis Culotta, David Dixon, Karl Horne, Scott Iroff, Walter − Jones, Mustafa Khalil, Raymond Latimore, Andre Lyons, Claude McDaniel, Nathan Morris, Edward Navarro, Steven O'Donohue, Ogwuobu Ojoir, Willie Patton, James − Robinson, Troy Scurry, Mark St John, Gregory Strong, Alfred Taylor, Jimmy Watson, Curtis Williams. (Attachments: # 1 Appendix Appendix of California Regulations Cited)(Galvan, Ernest) (Entered: 01/13/2005)

1147

DECLARATION of Ernest Galvan in Support Of re 1146 MOTION Order Directing Defendants to File Policies and Procedures. (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# 13 Exhibit M# 14 Exhibit N# 15 Exhibit O)(Galvan, Ernest) (Entered: 01/13/2005)

1148

ORDER TO SHORTEN TIME: Motion Hearing set for 2/7/2005 at 10:00 AM in Courtroom 4 (LKK) on pltf's Motion on Shortened Time for Order Enforcing the Terms of the Permanent Injunction 1144 , parties to adhere to the briefing schedule signed by Judge Lawrence K. Karlton on 01/18/05. (Warren, P) (Entered: 01/18/2005)

1149 MOTION for PROTECTIVE ORDER by Arnold Schwarzenegger. (Attachments: # 1 Declaration OF SERVICE)(Rice, Benjamin) (Entered: 01/24/2005)

1150 PROPOSED ORDER Proposed Order re 1149 MOTION for PROTECTIVE ORDER by Arnold Schwarzenegger. (Rice, Benjamin) (Entered: 01/24/2005)

1151

REPLY/RESPONSE to Plaintiff's Motion to Enforce Terms of Permanent Injunction by Marisela Montes, James W Nielsen, Carol J Bentley, Thomas J Giaquinto, John W Gillis, Manuel C Guaderrama, Ron E Koenig, Arthur F Van Court, Quintin L Villanueva, Cal A Terhune, Edward McNair, Arnold Schwarzenegger, Michael Connolly. (Attachments: # 1 Appendix A section of

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 108 of 168

01/24/2005
01/28/2005 01/28/2005 02/01/2005 02/01/2005
02/02/2005 02/04/2005 02/04/2005 02/07/2005 02/11/2005 02/22/2005 02/22/2005 03/07/2005

California Code of Regulations)(Rice, Benjamin) (Entered: 01/24/2005)

1152

DECLARATION of Benjamin T. Rice in SUPPORT OF re 1151 Reply/Response, Defendants Opposition to Plaintiff's Motion to Enforce Terms of Permanent Injunction. (Attachments: # 1 Exhibit A − Confidential Memorandum# 2 Exhibit B − Proposed Protective ORder# 3 Exhibit C − BPT Form 1104 (c)# 4 Exhibit D − Health and Safety Code# 5 Exhibit E − Declaration of Dr. Jordan# 6 Exhibit F − Proposed Legislation# 7 Exhibit G − Form xxx# 8 Exhibit H − Resource Document #3# 9 Exhibit I − Amendment to Resource Doc # 2)(Rice, Benjamin) (Entered: 01/24/2005)

1153 STIPULATION and PROPOSED ORDER by Hossie Welch, Edward McNair, − Daly, − Angele, − Presley, − Bordonaro, − Alameida, − Stephens, − Munoz, − Granlund, − Lawin, − Moore, Arnold Schwarzenegger. (Rice, Benjamin) (Entered: 01/28/2005)

1154 LETTER from class plaintiffs' counsel requesting the hearing currently set for February 7, 2005 be continued. (Hinkle, T) (Entered: 01/28/2005)

1155

STIPULATION and ORDER 1153 signed by Judge Gregory G. Hollows on 1/31/05 ORDERING the pursuant ot the conditions of the settlement, dfts are ORDERED to pay the attorney group $300,000.00 by or before 2/11/05, and interest shall be paid on the $300,000.00 for any payment received after this date. (Krueger, M) (Entered: 02/01/2005)

1156

STIPULATION and PROPOSED ORDER Stipulation &Proposed Order by Vincent Cervantes, Alfred Yancy, Hossie Welch, Jerry Valdivia, Steven G Williams, Nghia Buckius, Mario Carillo, Phillip Castillo, George Cortes, Francis Culotta, David Dixon, Karl Horne, Scott Iroff, Walter − Jones, Mustafa Khalil, Raymond Latimore, Andre Lyons, Claude McDaniel, Nathan Morris, Edward Navarro, Steven O'Donohue, Ogwuobu Ojoir, Willie Patton, James − Robinson, Troy Scurry, Mark St John, Gregory Strong, Alfred Taylor, Christopher Thomas, Jimmy Watson, Curtis Williams, John Hamre, Francis Culotta, Jeffrey H Malone. (Baldwin, Holly) (Entered: 02/01/2005)

MAIL RETURNED as Undeliverable−−insufficient address re 1148 Order Mail sent to Laurel M Nelson. (TEXT ONLY) (Duong, D) (Entered: 02/03/2005)

1157

STIPULATION and PROPOSED ORDER re 1146 MOTION Order Directing Defendants to File Policies and Procedures, 1149 MOTION for PROTECTIVE ORDER by Jerry Valdivia. (Attachments: # 1 Proposed Order to Continue Hearing to 3−21−05, Defendants' Supplemental Filing due 3−7−05, Plaintiffs' Reply due 3−14−05)(Galvan, Ernest) (Entered: 02/04/2005)

1158

ORDER re 1157 signed by Judge Lawrence K. Karlton on 2/4/05: The parties shall adhere the briefing schedule stated in this order the hearing on plts' motion to enforce terms of permanent injunction 1144 SET for 3/28/2005 at 10:00 AM in Courtroom 4 before Senior Judge Lawrence K. Karlton. (Duong, D) (Entered: 02/04/2005)

1159 STIPULATION and ORDER 1156 signed by Judge Lawrence K. Karlton on 2/7/05 confirming undisputed attorney fees and costs for the Third Quarter of 2004 and ORDERING that the $326,783.24 is due and collectable as of 45 days from the entry of this Order. (Krueger, M) (Entered: 02/07/2005)

MAIL RETURNED as Undeliverable ("No Such Number"): Stipulation and Order signed 1/31/04. Mail sent to Laurel M. Nelson. (Dotson, B) (Entered: 02/14/2005)

1160 MAIL RETURNED as Unable to forward re 1159 Stipulation and Order. Mail sent to Laurel M Nelson at Law Offices of Laurel M Nelson, Escondido, CA 92046 (Duong, D) (Entered: 02/23/2005)

1161 MAIL RETURNED as Undeliverable as addressed re 1158 Order. Mail sent to Mark F Adams at San Diego Crminial, 962 Fifth Avenue, Ste 214, San Diego, CA 92101. (Duong, D) (Entered: 02/23/2005)

1162 SUPPLEMENTAL and Superceding OPPOSITION TO PLAINTIFF'S MOTION TO ENFORCE TERMS OF PERMANENT INJUNCTION. (Attachments: # 1

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 109 of 168

03/07/2005 03/07/2005 03/07/2005 03/14/2005 03/14/2005 03/14/2005
03/14/2005 03/14/2005 03/15/2005
04/06/2005

Appendix A# 2 Appendix B)(Rice, Benjamin) Modified on 3/9/2005 (Krueger, M). (Entered: 03/07/2005)

1163

DECLARATION of BENJAMIN T. RICE in SUPPORT of 1162 SUPPLEMENTAL Opposition to Motion TO ENFORCE TERMS OF PERMANANT INJUNCTION. (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)(Rice, Benjamin) Modified on 3/9/2005 (Krueger, M). (Entered: 03/07/2005)

1164

AMENDED MOTION FOR PROTECTIVE ORDER 1149 by Marisela Montes, James W Nielsen, Carol J Bentley, Thomas J Giaquinto, John W Gillis, Manuel C Guaderrama, Ron E Koenig, Arthur F Van Court, Quintin L Villanueva, Cal A Terhune, Edward McNair, Arnold Schwarzenegger, Michael Connolly. (Rice, Benjamin) Modified on 3/9/2005 (Krueger, M). (Entered: 03/07/2005)

1165 PROPOSED ORDER Amended Protective Order re 1164 Amended MOTION FOR PROTECTIVE ORDER 1149 . (Rice, Benjamin) Modified on 3/9/2005 (Krueger, M). (Entered: 03/07/2005)

1166 REPLY to RESPONSE to MOTION For Order Enforcing Terms of Permanent Injunction 1146 and Opposition to Amended Motion for Protective Order 1164 . (Galvan, Ernest) (Entered: 03/14/2005)

1167 DECLARATION of Holly M. Baldwin in Support Of Plaintiffs' Motion for Order Enforcing Terms of the Permanent Injunction 1146 . (Galvan, Ernest) (Entered: 03/14/2005)

1168

DECLARATION of Janet Tung in Support of Plaintiffs Motion Plaintiffs' Motion for Order Enforcing Terms of the Permanent Injunction 1146 .. (Attachments: # 1 Exhibit A (Search re Cal Health &Safety 123115# 2 Exhibit B (Collins v. Kessler)# 3 Exhibit C, Collins v. Khoury# 4 Exhibit Exhibit D, Collins v. Haines# 5 Exhibit E, Search Results re Medical Information# 6 Exhibit F, Brookins v. Slayton# 7 Exhibit G, Verdicts &Settlements Search# 8 Exhibit H, Verdicts Results# 9 Exhibit I, 2d verdicts search# 10 Exhibit J, 2d verdicts results# 11 Exhibit K, SSA Program Operations Manual System, Access to Medical Records Rules)(Galvan, Ernest) (Entered: 03/14/2005)

1169 DECLARATION of Terry Allen Kupers MD in Suport of Plaintiffs' Motion for Order Enforcing Terms of the Permanent Injunction 1146 . (Galvan, Ernest) (Entered: 03/14/2005)

1170

MINUTES for proceedings held before Judge Lawrence K. Karlton : IN CHAMBERS HEARING held on 3/14/2005. Plaintiffs Counsel Ernie Galvan present. Defendants Counsel Ben Rice present. The pendings motions to enforce and for protective order are DROPPED from calendar. The matter is to be set for a Settlement Conference before the Hon. John F. Moulds. (Hinkle, T) (Entered: 03/14/2005)

1171

ORDER signed by Judge Lawrence K. Karlton 3/14/05 ORDERING that the parties' motions currently set for hearing on 3/28/05 ( 1164 First Amended MOTION to AMEND/CORRECT MOTION FOR PROTECTIVE ORDER, 1149 MOTION for PROTECTIVE ORDER 1144 , Joint MOTION to SHORTEN TIME for Plaintiffs' Motion to Enforce Terms of Permanent Injunction, and 1149 MOTION for PROTECTIVE ORDER) are DROPPED from calendar. Any of the above motions may be placed on calendar by re−noticing following the settlement conference. A Settlement Conference is now SET for 4/14/2005 at 01:30 PM Magistrate Judge John F. Moulds in Chambers.(Hinkle, T) (Entered: 03/15/2005)

1172

STIPULATION and PROPOSED ORDER Stipulation &Proposed Order Confirming Undisputed Attorneys Fees &Costs for 4th Quarter of 2004 by Vincent Cervantes, Alfred Yancy, Hossie Welch, Jerry Valdivia, Steven G Williams, Nghia Buckius, Mario Carillo, Phillip Castillo, George Cortes, Francis Culotta, David Dixon, Karl Horne, Scott Iroff, Walter − Jones, Mustafa Khalil, Raymond Latimore, Andre Lyons, Claude McDaniel, Nathan Morris, Edward Navarro, Steven O'Donohue, Ogwuobu Ojoir, Willie Patton, James − Robinson, Troy Scurry, Mark St John, Gregory Strong, Alfred Taylor, Christopher Thomas, Jimmy

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 110 of 168

04/13/2005 04/13/2005 04/13/2005 04/13/2005
04/13/2005
04/13/2005 04/14/2005 04/14/2005 04/14/2005 04/14/2005 04/14/2005

Watson, Curtis Williams, John Hamre, Francis Culotta, Jeffrey H Malone. (Baldwin, Holly) (Entered: 04/06/2005)

1173

ORDER re 1172 Stipulation and Proposed Order Confirming Undisputed Attorneys Fees and Costs for the Fourth Quarter of 2004 signed by Judge Lawrence K. Karlton on 4/12/05: The attorneys' fees of the amount $291,672.54 is due and collectable as of 45 days from the date of entry of this order.(Duong, D) (Entered: 04/13/2005)

1174 EX PARTE MOTION to SHORTEN TIME for hearing on plaintiffs' Motion for Order re violation of the Permanent Injunction and for Order to Show Cause Re: Contempt by plaintiffs. (Galvan, Ernest) Modified on 4/15/2008 (Marciel, M). (Entered: 04/13/2005)

1175 PROPOSED ORDER re 1174 Ex Parte MOTION to SHORTEN TIME for Hearing on Plaintiffs' Motion for Order Regarding Violation of the Permanent Injunction and for Order to Show Cause Re: Contempt. (Galvan, Ernest) (Entered: 04/13/2005)

1176

MOTION for Order Regarding Violation of Permanent Injunction; and for Order to Show Cause Re Contempt by Alfred Yancy, Hossie Welch, Jerry Valdivia, Nghia Buckius, Mario Carillo, Phillip Castillo, Francis Culotta, David Dixon, Karl Horne, Scott Iroff, Walter − Jones, Mustafa Khalil, Raymond Latimore, Andre Lyons, Claude McDaniel, Nathan Morris, Edward Navarro, Steven O'Donohue, Ogwuobu Ojoir, Willie Patton, James − Robinson, Troy Scurry, Mark St John, Gregory Strong, Alfred Taylor, Christopher Thomas, Jimmy Watson, Curtis Williams. (Galvan, Ernest) (Entered: 04/13/2005)

1177

DECLARATION of Ernest Galvan in Support Of re 1176 MOTION for Order Regarding Violation of Permanent Injunction; and for Order to Show Cause Re Contempt, 1174 Ex Parte MOTION to SHORTEN TIME for Hearing on Plaintiffs' Motion for Order Regarding Violation of the Permanent Injunction and for Order to Show Cause Re: Contempt. (Attachments: # 1 Exhibit 1 (Permanent Injunction)# 2 Exhibit 2, (Hickman Memorandum)# 3 Exhibit 3, (Letter)# 4 Exhibit 4 (Order 7−23−03)# 5 Exhibit 5, (Policies and Procedures)# 6 Exhibit 6, (Year 2000 Chart)# 7 Exhibit 7, (May 11, 2004 Announcement)# 8 Exhibit 8, (Order Re Class Notices)# 9 Exhibit 9, (Decl. of Michael Brady)# 10 Exhibit 10, (Declaration of Peter Keane)# 11 Exhibit 11, (Stipulation))(Galvan, Ernest) (Entered: 04/13/2005)

1178 PROPOSED ORDER to Show Cause re 1176 MOTION for Order Regarding Violation of Permanent Injunction; and for Order to Show Cause Re Contempt. (Galvan, Ernest) (Entered: 04/13/2005)

1179 OPPOSITION by defendant Arnold Schwarzenegger to 1174 Ex Parte Application to shorten time. (Rice, Benjamin) Modified on 4/25/2005 (Duong, D). Modified on 4/15/2008 (Marciel, M). (Entered: 04/14/2005)

1180 DECLARATION of Benjamin T. Rice in support of 1179 Opposition to plaintiff's Ex Parte Application to Shorten Time. (Attachments: # 1 Exhibit A # 2 Exhibit B # 3 Exhibit C) (Rice, Benjamin) Modified on 4/15/2008 (Marciel, M). (Entered: 04/14/2005)

1181 DECLARATION of Roderick Q. Hickman in support of 1179 Opposition to plaintiff's Ex Parte Application to shorten time. (Rice, Benjamin) Modified on 4/15/2008 (Marciel, M). (Entered: 04/14/2005)

1182

ORDER re 1174 Ex Parte MOTION to SHORTEN TIME for Hearing on Plaintiffs' Motion for Order Regarding Violation of the Permanent Injunction signed by Judge Lawrence K. Karlton on 4/14/05: A hearing on plts' motion is set for 5/9/2005 at 10:00 AM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. Dfts' response is due not later than 4pm on 4/22/05. Plts' reply is due not later than 4pm on 4/26/05. (Duong, D) (Entered: 04/14/2005)

1183 MINUTES for proceedings held before Judge John F. Moulds : SETTLEMENT CONFERENCE held on 4/14/2005. Janet Tung for plaintiffsErnest Galvan for plaintiffsBenjamin T. Rice for defendantsCatherine Nelson, CDC staff counselChief Counsel, BD of Prison TermsMark Remis, Staff counselSettlement

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 111 of 168

04/22/2005
04/22/2005 04/22/2005 04/26/2005 04/26/2005 04/26/2005 04/26/2005
04/26/2005 04/26/2005 04/26/2005 05/02/2005
05/02/2005 05/02/2005

conference held; all matters settled, except concerning pltf's motion to enforce terms of injunction; counsel stipulated that remaining issue will be submitted to Judge Karlton on declarations. (Farnsworth, C) (Entered: 04/18/2005)

1184

MEMORANDUM/RESPONSE in OPPOSITION re 1176 MOTION for Order Regarding Violation of Permanent Injunction; and for Order to Show Cause Re Contempt. (Attachments: # 1 Declaration of R. Rimmer# 2 Declaration of J. L'Etoile# 3 Declaration of R. Hickman# 4 Declaration of M. Speed# 5 Declaration of Service by Mail)(Rice, Benjamin) (Entered: 04/22/2005)

1185 DECLARATION of BENJAMIN T. RICE in OPPOSITION TO re 1176 MOTION for Order Regarding Violation of Permanent Injunction; and for Order to Show Cause Re Contempt. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Declaration of Service by Mail)(Rice, Benjamin) (Entered: 04/22/2005)

1186 DECLARATION of MICHAEL BRADY in OPPOSITION TO re 1176 MOTION for Order Regarding Violation of Permanent Injunction; and for Order to Show Cause Re Contempt. (Attachments: # 1 Declaration of Service by Mail)(Rice, Benjamin) (Entered: 04/22/2005)

1187 OBJECTIONS by Plaintiff Jerry Valdivia to 1184 Memorandum/Response in Opposition to Motion,, 1185 , 1186 And Motion to Strike Evidence Submitted by Defendants in Opposition to Plaintiffs' Motion for Contempt. (Palumbo, Kristen) (Entered: 04/26/2005)

1188 REPLY to RESPONSE to MOTION re 1176 MOTION for Order Regarding Violation of Permanent Injunction; and for Order to Show Cause Re Contempt. (Attachments: # 1 Appendix California Regulations Cited)(Galvan, Ernest) (Entered: 04/26/2005)

1189 DECLARATION of Holly Baldwin in SUPPORT OF re 1176 MOTION for Order Regarding Violation of Permanent Injunction; and for Order to Show Cause Re Contempt. (Attachments: # 1 Exhibit A# 2 Exhibit B)(Baldwin, Holly) (Entered: 04/26/2005)

1190

DECLARATION of Ernest Galvan in Reply In Support Of re 1176 MOTION for Order Regarding Violation of Permanent Injunction; and for Order to Show Cause Re Contempt. (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)(Galvan, Ernest) (Entered: 04/26/2005)

1191 DECLARATION of Michael W. Bien in Reply In Support Of re 1176 MOTION for Order Regarding Violation of Permanent Injunction; and for Order to Show Cause Re Contempt. (Attachments: # 1 Exhibit 1)(Galvan, Ernest) (Entered: 04/26/2005)

1192 PROPOSED ORDER Amended Proposed Order to Show Cause re 1176 MOTION for Order Regarding Violation of Permanent Injunction; and for Order to Show Cause Re Contempt. (Galvan, Ernest) (Entered: 04/26/2005)

1193 TRANSCRIPT of Chambers Settlement Conference held on 4/14/05 before Judge Magistrate Moulds. Transcription Service: Petrilla Reporting &Transcription. (Forester, C) (Entered: 04/27/2005)

1194

[STIPULATION re 1176 MOTION for Order Regarding Violation of Permanent Injunction; and for Order to Show Cause Re Contempt] , Stip to Request Hearing Be Continued from May 9, 2005 to May 12, 2005 by Jerry Valdivia. (Attachments: # 1 Declaration of Michael W. Bien)(Galvan, Ernest) Modified on 5/3/2005 (Duong, D). (Entered: 05/02/2005)

1195 PROPOSED ORDER re 1194 Stipulation, to Continue Hearing from May 9, 2005 to May 12, 2005. (Galvan, Ernest) (Entered: 05/02/2005)

1196

APPLICATION/REQUEST for Application for Order Shortening Time byMarisela Montes, James W Nielsen, Carol J Bentley, Thomas J Giaquinto, John W Gillis, Manuel C Guaderrama, Ron E Koenig, Arthur F Van Court, Quintin L Villanueva, Cal A Terhune, Edward McNair, Arnold Schwarzenegger, Michael Connolly(Acting Cheif Deputy Commissioner of the Board of Prison Terms) Ex

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 112 of 168

05/02/2005
05/02/2005
05/02/2005
05/02/2005 05/02/2005 05/02/2005 05/03/2005
05/12/2005
05/12/2005 05/12/2005 05/13/2005 05/13/2005

Parte Request. (Rice, Benjamin) (Entered: 05/02/2005)

1197

PROPOSED ORDER to Shorten Time re 1196 Application/Request, by Marisela Montes, James W Nielsen, Carol J Bentley, Thomas J Giaquinto, John W Gillis, Manuel C Guaderrama, Ron E Koenig, Arthur F Van Court, Quintin L Villanueva, Cal A Terhune, Edward McNair, Arnold Schwarzenegger, Michael Connolly(Acting Cheif Deputy Commissioner of the Board of Prison Terms). (Rice, Benjamin) (Entered: 05/02/2005)

1198

MOTION to SHORTEN TIME for Order Appointing Special Master by Marisela Montes, James W Nielsen, Carol J Bentley, Thomas J Giaquinto, John W Gillis, Manuel C Guaderrama, Ron E Koenig, Arthur F Van Court, Quintin L Villanueva, Cal A Terhune, Edward McNair, Arnold Schwarzenegger, Michael Connolly(Acting Cheif Deputy Commissioner of the Board of Prison Terms). (Rice, Benjamin) Modified on 5/3/2005 (Duong, D). (Entered: 05/02/2005)

1199

PROPOSED ORDER Appointing Special Master re 1198 Proposed MOTION to SHORTEN TIME for Order Appointing Special Master by Marisela Montes, James W Nielsen, Carol J Bentley, Thomas J Giaquinto, John W Gillis, Manuel C Guaderrama, Ron E Koenig, Arthur F Van Court, Quintin L Villanueva, Cal A Terhune, Edward McNair, Arnold Schwarzenegger, Michael Connolly(Acting Cheif Deputy Commissioner of the Board of Prison Terms). (Rice, Benjamin) (Entered: 05/02/2005)

1200 DECLARATION of Benjamin T. Rice. (Rice, Benjamin) (Entered: 05/02/2005)

1201 MEMORANDUM/RESPONSE in OPPOSITION re 1198 MOTION to SHORTEN TIME for Order Appointing Special Master. (Galvan, Ernest) Modified on 5/3/2005 (Duong, D). (Entered: 05/02/2005)

1202 DECLARATION of Ernest Galvan in Opposition To Defendants' Ex Parte Application for Order Shortening Time (Docket No. 1196). (Attachments: # 1 Exhibit A# 2 Exhibit B)(Galvan, Ernest) (Entered: 05/02/2005)

1203

ORDER signed by Judge Lawrence K. Karlton on 5/3/05: The court to continue plts' motion for civil contempt 1176 to 5/12/05 9:30am in Courtroom No. 4. The court hereby grants the dfts' 1196 Ex Parte Application for Order to Shorten Time on their motion to appoint a special master. A hearing on dft's motion is now set for 5/23/2005 at 10:00 AM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. Plts are directed to FILE an opposition or statement of non−opposition not later than 5/12/05. The dfts may FILE a reply brief not later 5/13/05. (See Order for details) (Duong, D) (Entered: 05/03/2005)

1204

MINUTES for proceedings held before Judge Lawrence K. Karlton: MOTION HEARING held on 5/12/2005 re 1176 MOTION for Order Regarding Violation of Permanent Injunction; and for Order to Show Cause Re Contempt filed by Plaintiffs. After oral argument, the matter stands SUBMITTED. Court to issue a formal order. Counsel Michael Bien present. Defendants Counsel Benjamine Rice present. Court Reporter: C. Bodene. (Rivas, A) (Entered: 05/12/2005)

1205 MEMORANDUM/RESPONSE in OPPOSITION re 1198 Proposed MOTION to SHORTEN TIME for Order Appointing Special Master. (Palumbo, Kristen) (Entered: 05/12/2005)

1206 DECLARATION of Michael W. Bien, Esq. in Support of re 1205 Memorandum/Response in Opposition to Motion to Appoint a Special Master. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C)(Palumbo, Kristen) (Entered: 05/12/2005)

1207 REPLY BRIEF in SUPPORT of motion to appoint a special master 1198 . (Rice, Benjamin) Modified on 5/20/2005 (Reader, L). (Entered: 05/13/2005)

1208 DECLARATION of Benjamin T. Rice in SUPPORT of 1207 Reply Brief re Motion for a Special Master. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D)(Rice, Benjamin) Modified on 5/20/2005 (Reader, L). (Entered: 05/13/2005)

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 113 of 168

05/13/2005
05/16/2005
05/19/2005 05/19/2005 05/23/2005
05/24/2005
05/26/2005 05/27/2005 05/31/2005 05/31/2005 06/01/2005

1209

APPLICATION/REQUEST for Removal/Sealing of Exhibit byJerry Valdivia re 1208 Declaration filed by Ron E Koenig,, Marisela Montes,, Manuel C Guaderrama,, John W Gillis,, Carol J Bentley,, James W Nielsen,, Thomas J Giaquinto,, Michael Connolly,, Edward McNair,, Arthur F Van Court,, Cal A Terhune,, Quintin L Villanueva,, Arnold Schwarzenegger,. In Support of Reply Re Special Master Motion. (Attachments: # 1 Appendix A, July 11, 2000 Protective Order# 2 Declaration of Ernest Galvan# 3 Proposed Order)(Galvan, Ernest) (Entered: 05/13/2005)

1210

NOTICE OF FILING / LODGING DOCUMENT IN PAPER by Marisela Montes, James W Nielsen, Carol J Bentley, Thomas J Giaquinto, John W Gillis, Manuel C Guaderrama, Ron E Koenig, Arthur F Van Court, Quintin L Villanueva, Cal A Terhune, Edward McNair, Arnold Schwarzenegger, Michael Connolly(Acting Cheif Deputy Commissioner of the Board of Prison Terms): Notice of Rights and Charges Lodged with court pursuant to 39−141. (Rice, Benjamin) (Entered: 05/16/2005)

1211 NOTICE of CHANGE of ADDRESS by Stephen J Perrello, Jr to 6363 Caminito Lazazo, San Diego, CA 92111. Telephone 858−277−5939. (Duong, D) (Entered: 05/19/2005)

1212 TRANSCRIPT of Proceedings held on 5/12/05 re Oral Argument re Violation of Permanent Injunction before Judge Lawrence K. Karlton. Court Reporter: C Bodene. (TEXT ONLY) (Duong, D) (Entered: 05/19/2005)

1213

MINUTES for proceedings held before Judge Lawrence K. Karlton: MOTION HEARING held on 5/23/2005 re Motion to Appoint a Special Master. After Oral Argument: The Court instructs the parties to meet and confer and to file within 30 days a proposed reference. And to the extent that they cannot agree, to provide the Court with those portions of the reference which they disagree with. The parties are also directed to suggest to the Court the means by which a special master shall be selected. The Court wishes to emphasize that the master is supplemental to the methods set forth in the decree and is not intended to displace those procedures. Plaintiffs Counsel Ernest Galvan, Michael Bien present. Defendants Counsel Benjamin Rice present. Court Reporter: C. Bodene. (Rivas, A) (Entered: 05/23/2005)

1215

PROPOSED stipulated order regarding policies and procedures for designating information as confidential in parole revocation proceedings. by Marisela Montes, James W Nielsen, Carol J Bentley, Thomas J Giaquinto, John W Gillis, Manuel C Guaderrama, Ron E Koenig, Arthur F Van Court, Quintin L Villanueva, Cal A Terhune, Michael Connolly(Acting Chief Deputy Commissioners of the Board of Prison Terms of the State of CA), Edward McNair, California Attorneys Administrative Law Judges and Hearing Officers in State Employment, Arnold Schwarzenegger, Michael Connolly(Acting Cheif Deputy Commissioner of the Board of Prison Terms). (Plummer, M) (Entered: 05/27/2005)

1214 TRANSCRIPT of Proceedings held on 5/23/05 before Judge Lawrence K. Karlton. Court Reporter: C. Bodene. (TEXT ONLY) (Duong, D) (Entered: 05/27/2005)

SERVICE BY MAIL: 1215 Proposed Order, served on Mark F Adams, Erika C Aljens, Alexander L Landon, Michael J McCabe, Benjamin Laurence Pavone, Stephen J Perrello Jr (Plummer, M) (Entered: 05/27/2005)

1216

ORDER signed by Judge John F. Moulds on 5/27/05: This Court has read the proposed stipulated order filed 5/24/05 1215 and finds that it properly sets forth the agreements reached in the Settlement conference. It is hereby RECOMMENDED that the proposed stipulated order be approved and ordered by the District Court. (Sherman, T) (Modified by M. Krueger on 5/31/05) (Entered: 05/31/2005)

SERVICE BY MAIL: 1216 Stipulation and Order served on Mark F Adams, Erika C Aljens, Alexander L Landon, Michael J McCabe, Benjamin Laurence Pavone, and Stephen J Perrello Jr. (Sherman, T) (Entered: 05/31/2005)

1217 STIPULATION and ORDER re Policies and Procedures for Designating information as confidential in parole revocation proceedings signed by Judge Lawrence K. Karlton on 6/1/05. (Duong, D) (Entered: 06/02/2005)

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 114 of 168

06/09/2005
06/09/2005 06/17/2005 06/17/2005 06/17/2005 06/27/2005 07/11/2005
07/14/2005 07/14/2005 07/20/2005
07/26/2005 07/26/2005 07/29/2005
08/04/2005

1218

ORDER signed by Judge Lawrence K. Karlton on 6/8/05 ORDERING MOTION for Order Regarding Violation of Permanent Injunction, and for Order to Show Cause Re Contempt 1176 GRANTED in part, and DENIED in part as follows: The dfts are in violation of the Permanent Injunction Order by virture of the elimination of the remedial sanctions of Electronic Monitoring and SATCUs; 2) The removal of the CCRCs is not in violation of the Permanent Injunction Order; and 3) Dfts will not be held in contempt. (Krueger, M) (Entered: 06/09/2005)

SERVICE BY MAIL: 1218 Order served on Mark F. Adams, Erika C. Aljens, Alexander L. Landon, Michael J. McCabe, Benjamin Laurence Pavone, Stephen J. Perrello Jr. (Krueger, M) (Entered: 06/09/2005)

1219 STIPULATION and PROPOSED ORDER To Extend Time to July 22, 2005 for Filing of Proposed Reference and Method of Selecting Special Master by Jerry Valdivia. (Galvan, Ernest) (Entered: 06/17/2005)

1220 STIPULATION AND ORDER re 1219 signed by Judge Morrison C. England Jr. for Judge Lawrence K. Karlton on 6/17/05: The time is extended to 7/22/05 to file a proposed reference and method of selecting a Special Master.(Duong, D) (Entered: 06/17/2005)

SERVICE BY MAIL: 1220 Order served on Mark F Adams, Erika C Aljens, Alexander L Landon, Michael J McCabe, Benjamin Laurence Pavone, Stephen J Perrello Jr (Duong, D) (Entered: 06/17/2005)

1228 PETITION filed by Russell P. Hall.(Duong, D) (Entered: 08/15/2005)

1221

STIPULATION and PROPOSED ORDER Joint Stipulation to Request to Submit Remaining Disputed Issue Regarding Defendants' Policies and Procedures for Designating Information As Confidential by Jerry Valdivia. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5# 6 Exhibit 6# 7 Exhibit 7# 8 Exhibit 8)(Galvan, Ernest) (Entered: 07/11/2005)

1222 JOINT STIPULATION and ORDER signed by Judge Lawrence K. Karlton on 7/14/05 ORDERING that plts' motions are SUBMITTED.(Duong, D) (Entered: 07/14/2005)

SERVICE BY MAIL: 1222 Stipulation and Order, Motions Submitted/Under Advisement served on Mark F Adams, Erika C Aljens, Alexander L Landon, Michael J McCabe, Benjamin Laurence Pavone, Stephen J Perrello Jr. (Duong, D) (Entered: 07/14/2005)

1223

STIPULATION and PROPOSED ORDER to Extend time to File Proposed Special Master Terms of Reference and Method of Selection by Marisela Montes, James W Nielsen, Carol J Bentley, Thomas J Giaquinto, John W Gillis, Manuel C Guaderrama, Ron E Koenig, Arthur F Van Court, Quintin L Villanueva, Cal A Terhune, Michael Connolly(Acting Chief Deputy Commissioners of the Board of Prison Terms of the State of CA), Edward McNair, Arnold Schwarzenegger. (Rice, Benjamin) (Entered: 07/20/2005)

1224 STIPULATED and ORDER re 1223 signed by Judge Lawrence K. Karlton on 7/25/05 GRANTING the extension of time to file a proposed reference to 8/12/05. (Duong, D) (Entered: 07/26/2005)

SERVICE BY MAIL: 1224 Stipulation and Order served on Mark F Adams, Erika C Aljens, Alexander L Landon, Michael J McCabe, Benjamin Laurence Pavone, Stephen J Perrello Jr. (Duong, D) (Entered: 07/26/2005)

1225

STIPULATION and PROPOSED ORDER Protective Order by Marisela Montes, James W Nielsen, Carol J Bentley, Thomas J Giaquinto, John W Gillis, Manuel C Guaderrama, Ron E Koenig, Arthur F Van Court, Quintin L Villanueva, Cal A Terhune, Edward McNair, Arnold Schwarzenegger, Michael Connolly(Acting Cheif Deputy Commissioner of the Board of Prison Terms). (Rice, Benjamin) (Entered: 07/29/2005)

1226 STIPULATED PROTECTIVE ORDER signed by Judge Lawrence K. Karlton on 8/4/05. (Dotson, B) (Entered: 08/04/2005)

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 115 of 168

08/04/2005 08/10/2005 08/12/2005
08/15/2005 08/15/2005 08/16/2005 08/16/2005 08/16/2005 08/19/2005
08/19/2005 08/19/2005 09/01/2005
09/01/2005 09/08/2005 09/16/2005

SERVICE BY MAIL: 1226 Protective Order served on Mark F Adams, Erika C Aljens, Alexander L Landon, Michael J McCabe, Benjamin Laurence Pavone, Stephen J Perrello Jr (Dotson, B) (Entered: 08/04/2005)

1235 LETTER from Stephen S. Jacquett regarding the Valdivia case. (Plummer, M)(Letter addressed in case 96−cv−1429 DFL JFM Modified on 9/6/2005 (Plummer, M). (Entered: 08/26/2005)

1227

STIPULATION and PROPOSED ORDER Re Special Master Order of Reference by Marisela Montes, James W Nielsen, Carol J Bentley, Thomas J Giaquinto, John W Gillis, Manuel C Guaderrama, Ron E Koenig, Arthur F Van Court, Quintin L Villanueva, Cal A Terhune, Edward McNair, Arnold Schwarzenegger, Michael Connolly(Acting Cheif Deputy Commissioner of the Board of Prison Terms). (Rice, Benjamin) (Entered: 08/12/2005)

1229 CLERK'S NOTICE of Service of 1228 Petition for Writ of Habeas Corpus on class counsel. (Duong, D) (Entered: 08/15/2005)

SERVICE BY MAIL: 1229 Clerk's Notice of Service served on Mark F Adams, Erika C Aljens, Alexander L Landon, Michael J McCabe, Benjamin Laurence Pavone, Stephen J Perrello Jr. (Duong, D) (Entered: 08/15/2005)

1230 STIPULATION and ORDER re Special Master Order of Reference signed by Judge Lawrence K. Karlton on 8/15/05. (See Order for details).(Duong, D) (Entered: 08/16/2005)

1231 STIPULATION and PROPOSED ORDER Confirming Undisputed Attorney's Fees and Costs for the First Quarter of 2005 and Resolving Disputed Attorney's Fees from the Second Quarter of 2004 by plts (Baldwin, Holly) Modified on 8/17/2005 (Duong, D). (Entered: 08/16/2005)

1232 Joint MOTION to AMEND/CORRECT Order of Reference 1230 Stipulation and Order by Jerry Valdivia. (Galvan, Ernest) (Entered: 08/16/2005)

1233

STIPULATION and ORDER Confirming Undisputed Attorneys' Fees ad Costs for the First Quarter of 2005 and Resolving Disputed Attorneys' Fees from the Second Quarter of 2004 re 1231 signed by Judge Lawrence K. Karlton on 8/18/05 ORDERING that it is confirmed that $481,256.27, plus interest is due and collectable as of 45 days from the date of entry of this order. (Duong, D) (Entered: 08/19/2005)

1234 STIPULATION AND AMENDED ORDER re Special Master Order of Reference re 1230 and 1232 Motion to amend signed by Judge Lawrence K. Karlton on 8/18/05. (See Order for details). (Duong, D) (Entered: 08/19/2005)

SERVICE BY MAIL: 1234 Order on Motion to Amend/Correct, 1233 Stipulation and Order, served on Mark F Adams, Erika C Aljens, Alexander L Landon, Michael J McCabe, Benjamin Laurence Pavone, Stephen J Perrello Jr. (Duong, D) (Entered: 08/19/2005)

1236

ORDER signed by Judge Lawrence K. Karlton on 8/31/05 ORDERING that parolees' counsel shall receive access to information in their client's parole field files w/out any limitations or restrictions on disclosing the information to the parolee based on perceived risk of harm to the parolee's mental health under Cal. Health and Safety Code Sec. 123115(b). Dfts, in delivering such material, may note its sensitive character and urge counsel to use discretion in determining whether to discuss its contents with a client. (Krueger, M) (Entered: 09/01/2005)

SERVICE BY MAIL: 1236 Order served on Mark F Adams, Erika C Aljens, Alexander L Landon, Michael J McCabe, Benjamin Laurence Pavone, Stephen J Perrello Jr. (Krueger, M) (Entered: 09/01/2005)

1237 STIPULATION and PROPOSED ORDER Re Appointment of Special Master by Jerry Valdivia. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Proposed Order)(Galvan, Ernest) (Entered: 09/08/2005)

1238 ORDER signed by Judge Lawrence K. Karlton on 9/15/05 re 1237 ORDERING that the court prefers a list of three candiates for Special Master, from which the court will choose one. (Duong, D) (Entered: 09/16/2005)

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 116 of 168

09/16/2005 10/24/2005 11/02/2005
11/02/2005 11/04/2005 11/04/2005 12/09/2005
12/14/2005 12/16/2005 12/16/2005 12/19/2005
12/19/2005 01/23/2006 01/23/2006 01/30/2006 01/30/2006
01/30/2006

SERVICE BY MAIL: 1238 Order served on Mark F Adams, Erika C Aljens, Alexander L Landon, Michael J McCabe, Benjamin Laurence Pavone, Stephen J Perrello Jr.(Duong, D) (Entered: 09/16/2005)
1239 STIPULATION and PROPOSED ORDER Confirming Undisputed Attorney's Fees and Costs for Second Quarter 2005 by Jerry Valdivia. (Baldwin, Holly) (Entered: 10/24/2005)
1240 STIPULATION and ORDER signed by Judge Lawrence K. Karlton on 11/1/05 ORDERING that is confirmed that $541,133.62 is due and collectable as of 45 days from the date of this order. Modified on 11/2/2005 (Caspar, M). (Entered: 11/02/2005)
SERVICE BY MAIL: 1240 Stipulation and Order served on Mark F Adams, Erika C Aljens, Alexander L Landon, Michael J McCabe, Benjamin Laurence Pavone, Stephen J Perrello Jr. (Caspar, M) (Entered: 11/02/2005)
1241 NOTICE of Defendants' Special Master Candidates (Attachments: # 1 Exhibit A − C)(Rice, Benjamin) Modified on 11/7/2005 (Duong, D). (Entered: 11/04/2005)
1242 Plaintiffs' Submission of Special Master Candidates Pursuant to Aug. 19, 2005 Order of Reference (Attachments: # 1 Exhibits A, B and C)(Galvan, Ernest) Modified on 11/7/2005 (Duong, D). (Entered: 11/04/2005)
1243 MINUTES for proceedings held before Judge Lawrence K. Karlton : IN CHAMBERS CONFERENCE held on 12/6/2005. Plaintiffs Counsel Michael Bien &Ernie Galvan present. Defendants Counsel Ben Rice present. (Hinkle, T) (Entered: 12/09/2005)
1244 STIPULATION and PROPOSED ORDER Confirming Undisputed Attorneys' Fees and Costs for the Third Quarter of 2005 by Jerry Valdivia. (Baldwin, Holly) (Entered: 12/14/2005)
1245 ORDER signed by Judge Lawrence K. Karlton on 12/16/05 APPOINTING Chase Riveland as Special Master. Clerk to add Mr. Riveland to the court's service list.(Matson, R) (Entered: 12/16/2005)
SERVICE BY MAIL: 1245 Order served on Mark F Adams, Erika C Aljens, Alexander L Landon, Michael J McCabe, Benjamin Laurence Pavone, Stephen J Perrello Jr and Chase Riveland. (Matson, R) (Entered: 12/16/2005)
1246 STIPULATION and ORDER signed by Judge Lawrence K. Karlton on 12/19/05 re 1244 ORDERING that $498,931.72 is due and collectable s of 45 days from the date of entry of this order. Daily interest runs from 12/5/05 at the rate of 4.39%. (Duong, D) Modified on 12/19/2005 (Duong, D). (Entered: 12/19/2005)
SERVICE BY MAIL: 1246 Stipulation and Order, served on Mark F Adams, Erika C Aljens, Alexander L Landon, Michael J McCabe, Benjamin Laurence Pavone, Stephen J Perrello Jr, Chase Riveland. (Duong, D) (Entered: 12/19/2005)
1247 REQUEST (Motion) for failure to follow Court Order by Daren Miller. (MAINTAIN ON PAPER)(Donati, J) (Entered: 01/24/2006)
1248 LETTER from Jerry Valdivia re: violation of Permanent Injunctive Relief. (MAINTAIN ON PAPER) (Donati, J) (Entered: 01/24/2006)
1249 REQUEST for appointment of Deputy Special Masters filed by Special Master Chase Riveland. (Hinkle, T) (Entered: 01/30/2006)
SERVICE BY MAIL: 1249 Request for appointment of Deputy Special Masters served on Mark F Adams, Erika C Aljens, Alexander L Landon, Michael J McCabe, Benjamin Laurence Pavone, Stephen J Perrello Jr (Hinkle, T) (Entered: 01/30/2006)
1250 MEMORANDUM by Chase Riveland in Support of 1249 Request to Appoint Deputy Special Masters. (Attachments: # 1 Resume # 2 Resume)(Hinkle, T) (Entered: 01/30/2006)

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 117 of 168

01/30/2006 01/31/2006 01/31/2006 02/01/2006
02/03/2006
02/03/2006 02/08/2006 02/23/2006 03/03/2006 03/10/2006 03/10/2006 03/30/2006 03/30/2006 03/30/2006 03/30/2006 04/11/2006

SERVICE BY MAIL: 1250 Memorandum served on Mark F Adams, Erika C Aljens, Alexander L Landon, Michael J McCabe, Benjamin Laurence Pavone, Stephen J Perrello Jr (Hinkle, T) (Entered: 01/30/2006)

1251 ORDER signed by Judge Lawrence K. Karlton on 1/30/06 ORDERING Virginia L. Morrison and Nancy M. Campbell APPOINTED as Deputy Special Masters. (Carlos, K) (Entered: 01/31/2006)

SERVICE BY MAIL: 1251 Order, Add and Terminate Parties served on Mark F Adams, Erika C Aljens, Alexander L Landon, Michael J McCabe, Benjamin Laurence Pavone, Stephen J Perrello Jr (Carlos, K) (Entered: 01/31/2006)

1252

PROPOSED ORDER for Special Master Compensation by Marisela Montes, James W Nielsen, Carol J Bentley, Thomas J Giaquinto, John W Gillis, Manuel C Guaderrama, Ron E Koenig, Arthur F Van Court, Quintin L Villanueva, Cal A Terhune, Edward McNair, Arnold Schwarzenegger, Michael Connolly(Acting Cheif Deputy Commissioner of the Board of Prison Terms). (Rice, Benjamin) (Entered: 02/01/2006)

1253

ORDER signed by Judge Lawrence K. Karlton on 02/02/06. ORDERING Defendants to deposit, within 30 days of the date of this Order, the sum of $500,000 with the Clerk of this Court as an interim payment of costs, which shall be invested in an interest−bearing account.(Mena−Sanchez, L) (Entered: 02/03/2006)

SERVICE BY MAIL: 1253 Order, served on Mark F Adams, Erika C Aljens, Alexander L Landon, Michael J McCabe, Benjamin Laurence Pavone, Stephen J Perrello Jr. (Mena−Sanchez, L) (Entered: 02/03/2006)

1254 LETTER from Benjamin Pavone requesting his name be removed from the service list. (Duong, D) (Entered: 02/09/2006)

1256 MOTION for non compliance to court order by Daren Miller. [MAINTAINED ON PAPER].(Duong, D) Modified on 3/30/2006 (Duong, D). Modified on 3/30/2006 (Warren, P). (Entered: 03/30/2006)

RECEIPT number 204−10701 for $500,000 for Interim payment of Costs from State of CA. (Duong, D) (Entered: 03/03/2006)

1255 ORDER signed by Judge Lawrence K. Karlton on 3/9/06 ORDERING that Clerk is directed to pay to Chase Riveland the amount of $32,754.87 in accordance with the attached statement. A copy of this order shall be served on the Financial Dept. (Duong, D) (Entered: 03/10/2006)

SERVICE BY MAIL: 1255 Order served on Mark F Adams, Erika C Aljens, Alexander L Landon, Michael J McCabe, Stephen J Perrello Jr. and CFS. (Duong, D) (Entered: 03/10/2006)

1257 ORDER signed by Judge Lawrence K. Karlton on 3/27/06 ORDERING that there is no provision in the Stipulated Judgment for enforcement by individual class members and the motion 1256 is therefore DENIED. Clerk shall serve a copy of the attached motion on class counsel.(Duong, D) (Entered: 03/30/2006)

SERVICE BY MAIL: 1257 Order served on Mark F Adams, Erika C Aljens, Alexander L Landon, Michael J McCabe, Daren Miller and Stephen J Perrello Jr. (Duong, D) (Entered: 03/30/2006)

1258 ELECTRONIC SERVICE of motion on class counsel pursuant to 1257 Order. (Warren, P) (Entered: 03/30/2006)

1259 SERVICE by MAIL of motion 1256 to atty Mark F. Adams, Alexander L. Landon and Stephen J. Perrello (class counsel) pursuant to order 1257 . (Warren, P) (Entered: 03/30/2006)

1260 ORDER signed by Judge Lawrence K. Karlton on 4/7/06 ORDERING that Clerk is directed to pay to Chase Riveland in the amount of $23,732.11 in accordance with the attached statement. (cc: CFS). (Duong, D) (Entered: 04/11/2006)

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 118 of 168

04/11/2006 04/12/2006 04/24/2006 05/03/2006 05/05/2006
05/05/2006 05/08/2006 05/08/2006 05/10/2006 05/10/2006 05/15/2006
05/15/2006 05/17/2006 05/17/2006 05/26/2006 05/26/2006 06/05/2006 06/07/2006

SERVICE BY MAIL: 1260 Order served on Mark F Adams, Erika C Aljens, Alexander L Landon, Michael J McCabe, Daren Miller and Stephen J Perrello Jr. (Duong, D) (Entered: 04/11/2006)

1261 MAIL RETURNED as Undeliverable "RTS − forwarding label to CCL − Susanville." 1257 Order sent to Daren Miller. (TEXT ONLY ENTRY) (Caspar, M) Modified on 4/13/2006 (Caspar, M). (Entered: 04/13/2006)

1262 NOTICE of CHANGE of ADDRESS by Daren Jean Miller to PO Box 2210 Susanville, CA 96127. (Yin, K) (Entered: 04/25/2006)

1263 NOTICE of RELATED CASE 2:06−cv−0823−DFL−DAD (Caspar, M) (Entered: 05/04/2006)

1264

ORDER signed by Judge Lawrence K. Karlton on 5/5/06 ORDERING that: the clerk is DIRECTED to pay to Chase Riveland, Valdivia Special Master, the amount of $17,570.40 in accordance with the attached statement; and a copy of this order shall be served on SAC Financial.(cc: SAC Financial) (Brown, T) (Entered: 05/05/2006)

SERVICE BY MAIL: 1264 Order, served on Mark F Adams, Erika C Aljens, Alexander L Landon, Michael J McCabe, and Stephen J Perrello Jr (Brown, T) (Entered: 05/05/2006)

1265 NON−RELATED CASE ORDER signed by Judge Lawrence K. Karlton on 05/05/06: The court declines to relate cases CIV−S−94−0671 LKK GGH and CIV−S−06−0823 DFL DAD. (Warren, P) (Entered: 05/08/2006)

SERVICE BY MAIL: 1265 Non−Related Case Order served on Mark F Adams, Erika C Aljens, Alexander L Landon, Michael J McCabe and Stephen J Perrello Jr. (Warren, P) (Entered: 05/08/2006)

1266 STIPULATION Confirming Undisputed Attorneys' Fees and Costs for the Fourth Quarter of 2005 by Jerry Valdivia. (Galvan, Ernest) (Entered: 05/10/2006)

1267 PROPOSED ORDER re 1266 Stipulation by Jerry Valdivia. (Galvan, Ernest) (Entered: 05/10/2006)

1268

ORDER CONFIRMING UNDISPUTED ATTORNEY FEES and COSTS signed by Judge Lawrence K. Karlton on 5/11/06 ORDERING 1266 Pltfs' fees and costs of $451,521.78, plus interest are due and collectable as of 45 days from the date of entry of this Order. Daily interest runs from 3/13/06 at the rate of 4.80%. (Girgis, C) (Entered: 05/15/2006)

SERVICE BY MAIL: 1268 Order served on Mark F. Adams, Erika C. Aljens, Alexander L. Landon, Michael J. McCabe, and Stephen J. Perrello Jr. (Girgis, C) (Entered: 05/15/2006)

1269 REQUEST for for ruling on 1247 motion by Daren Jean Miller. (Caspar, M) (Entered: 05/18/2006)

1270 NOTICE of motion to amend 1034 Stipulated Order by Daren Jean Miller (Caspar, M) (Entered: 05/18/2006)

1271 ORDER signed by Judge Lawrence K. Karlton on 5/24/06 ORDERING that the Motion to amend the "Stipulated order for permanent injunctive relief" is DENIED.(Mena−Sanchez, L) (Entered: 05/26/2006)

SERVICE BY MAIL: 1271 Order served on Mark F Adams, Erika C Aljens, Alexander L Landon, Michael J McCabe. (Mena−Sanchez, L) (Entered: 05/26/2006)

1272 LETTER from Daniel Seidel requesting status of case (Caspar, M) (Entered: 06/06/2006)

1273 ORDER signed by Judge Lawrence K. Karlton on 6/6/2006 ORDERING that Clerk is directed to pay to Chase Riveland, Valdivia Special Master, the amount of $23,121.87 in accordance with the statement. A copy of this order shall be served on the CFS. (Duong, D) (Entered: 06/07/2006)

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 119 of 168

06/07/2006 06/07/2006 06/08/2006 06/08/2006 06/12/2006 06/12/2006 06/14/2006 06/14/2006 06/14/2006 06/14/2006 06/15/2006
06/15/2006 06/20/2006 06/21/2006
06/21/2006 06/21/2006
06/30/2006

SERVICE BY MAIL: 1273 Order served on Mark F Adams, Erika C Aljens, Alexander L Landon and Michael J McCabe. (Duong, D) (Entered: 06/07/2006)

1274 REQUEST for Judicial Notice by Daren Jean Miller. (Duong, D) (Entered: 06/08/2006)

1275 RESERVICE OF DOCUMENTS: re 1271 Order addressed to all parties and Daren Miller. (Duong, D) (Entered: 06/08/2006)

SERVICE BY MAIL: 1271 Order re−served on Mark F Adams, Erika C Aljens, Alexander L Landon, Michael J McCabe and Daren Jean Miller (Duong, D) (Entered: 06/08/2006)

1276 STIPULATION Confirming Undisputed Attorneys' Fees and Costs for the First Quarter of 2006 by Jerry Valdivia. (Baldwin, Holly) (Entered: 06/12/2006)

1277 PROPOSED ORDER Confirming Undisputed Attorneys' Fees and Costs for the First Quarter of 2006 re 1276 Stipulation by Jerry Valdivia. (Baldwin, Holly) Modified on 6/13/2006 (Brown, T). (Entered: 06/12/2006)

1278 PROPOSED ORDER extending time for submission of the Special Master's Report filed by Chase Riveland/Ginny Morrison. (Hinkle, T) (Entered: 06/14/2006)

SERVICE BY MAIL: 1278 Proposed Order served on Mark F Adams, Erika C Aljens, Alexander L Landon, Michael J McCabe, Daren Jean Miller (Hinkle, T) (Entered: 06/14/2006)

1279 ORDER signed by Judge Lawrence K. Karlton on 6/14/06: The Special Master's request for an extension of time is granted. The First Report of the Special Master shall be filed on or before September 16, 2006. (Hinkle, T) (Entered: 06/14/2006)

SERVICE BY MAIL: 1279 Order served on Mark F Adams, Erika C Aljens, Alexander L Landon, Michael J McCabe, Daren Jean Miller (Hinkle, T) (Entered: 06/14/2006)

1280

ORDER Confirming Undisputed Attorneys' Fees and Costs for the 1st Quarter of 2006 signed by Judge Lawrence K. Karlton on 6/14/06. It is ORDERED that pltfs' fees and costs of $510,883.93, plus interst, are due and collectable as of 45 days from the date of entry of this Order. Daily interest runs from June 8, 2006 at the rate provided by 28 U.S.C. Section 1961. (Brown, T) (Entered: 06/15/2006)

SERVICE BY MAIL: 1280 Order, served on Mark F Adams, Erika C Aljens, Alexander L Landon, Michael J McCabe &Daren Jean Miller (Brown, T) (Entered: 06/15/2006)

1281 NOTICE of Association of Counsel Susan Burrell by plaintiffs. (Bien, Michael) Modified on 6/20/2006 (Duong, D). (Entered: 06/20/2006)

1282

NOTICE OF MOTION and MOTION for Leave to File First Supplemental Civil Class Action Complaint for Declaratory and Injunctive Relief by plts . Motion Hearing set for 8/7/2006 at 10:00 AM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. (Bien, Michael) Modified on 6/21/2006 (Duong, D). (Entered: 06/21/2006)

1283 PROPOSED ORDER Granting Leave to File First Supplemental Civil Class Action Complaint for Declaratory and Injunctive Relief (Bien, Michael) Modified on 6/21/2006 (Duong, D). (Entered: 06/21/2006)

1284

DECLARATION of Michael W. Bien in SUPPORT OF. Plaintiffs' Notice of Motion and Motion for Leave to File First Supplemental Civil Class Action Complaint for Declaratory and Injunctive Relief (Attachments: # 1 E Exhibits A−B to MWB Decl ISO Mtn to Supp Complaint# 2 Exhibits C−D to MWB Decl ISO Mtn to Supp Complaint# 3 Exhibits E−F to MWB Decl ISO Mtn to Supp Complaint)(Bien, Michael) Modified on 6/21/2006 (Duong, D). (Entered: 06/21/2006)

1285 STIPULATION and PROPOSED ORDER to re−schedule hearing date and briefing schedule on plts' motion to supplement complaint by Arnold Schwarzenegger. (Rice, Benjamin) Modified on 7/3/2006 (Duong, D). (Entered:

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 120 of 168

07/03/2006 07/06/2006 07/06/2006 07/06/2006 07/06/2006 07/07/2006
07/13/2006 07/28/2006 07/28/2006 08/02/2006
08/02/2006 08/09/2006
08/14/2006 08/21/2006

06/30/2006)

1286 STIPULATION and PROPOSED ORDER Extending Time to File Motion to Compel Regarding Disputed Attorneys' Fees and Costs for 2005 by Jerry Valdivia. (Baldwin, Holly) Modified on 7/5/2006 (Kirkpatrick, S). (Entered: 07/03/2006)

1287 STIPULATION and ORDER signed by Judge Lawrence K. Karlton on 7/5/2006 GRANTING 1285 Stipulation and Proposed Order Motion to re−schedule hearing currently set for 8/7/2006 to 8/28/2006 at 10:00 AM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. (Matson, R) (Entered: 07/06/2006)

SERVICE BY MAIL: 1287 Stipulation and Order served on Mark F Adams, Erika C Aljens, Alexander L Landon, and Michael J McCabe. (Matson, R) (Entered: 07/06/2006)

1288 ORDER signed by Judge Lawrence K. Karlton on 7/6/2006 GRANTING 1286 Stipulation and Proposed Order extending time to file motion to compel regarding disputed attorneys' fees and costs for 2005. (Matson, R) (Entered: 07/06/2006)

SERVICE BY MAIL: 1288 Order served on Mark F Adams, Erika C Aljens, Alexander L Landon, and Michael J McCabe. (Matson, R) (Entered: 07/06/2006)

1289

NOTICE of APPEARANCE by Gay Crosthwait Grunfeld on behalf of Vincent Cervantes, Alfred Yancy, Hossie Welch, Jerry Valdivia, Steven G Williams, Russell P. Hall, Daren Jean Miller, Nghia Buckius, Mario Carillo, Phillip Castillo, George Cortes, Francis Culotta, David Dixon, Karl Horne, Scott Iroff, Walter − Jones, Mustafa Khalil, Raymond Latimore, Andre Lyons, Claude McDaniel, Nathan Morris, Edward Navarro, Steven O'Donohue, Ogwuobu Ojoir, Willie Patton, James − Robinson, Troy Scurry, Mark St John, Gregory Strong, Alfred Taylor, Christopher Thomas, Jimmy Watson, Curtis Williams, John Hamre, Francis Culotta, Jeffrey H Malone. Attorney Grunfeld, Gay Crosthwait added. (Grunfeld, Gay) (Entered: 07/07/2006)

1290 LETTER from Wesley McKintosh re non−compliance of the Permanent Injuction by BPT. (Duong, D) (Entered: 07/14/2006)

1291 ORDER signed by Judge Lawrence K. Karlton on 07/28/06.: The Clerk is directed to pay to Chase Riveland, Valdivia Special Master, the amount of $36,208.48 in accordance with the attached statement; a copy shall be served on the Financial Dept of the Court. (cc: Financial Dept)(Kirkpatrick, S) (Entered: 07/28/2006)

SERVICE BY MAIL: 1291 Order, served on Mark F Adams, Erika C Aljens, Alexander L Landon and Michael J McCabe. (Kirkpatrick, S) (Entered: 07/28/2006)

1292

ORDER signed by Judge Lawrence K. Karlton on 8/1/06: The Clerk is DIRECTED to pay to Chase Riveland, Valdivia Special Master, the amount of $20,593.15 in accordance with the attached statement; a copy of this order shall be served on the Financial Dept. of this court. (cc: Financial)(Brown, T) (Entered: 08/02/2006)

SERVICE BY MAIL: 1292 Order served on Mark F Adams, Erika C Aljens, Alexander L Landon, and Michael J McCabe. (Brown, T) (Entered: 08/02/2006)

1293

MEMORANDUM/RESPONSE in OPPOSITION re 1282 MOTION to AMEND the COMPLAINT to File First Supplemental Civil Class Action Complaint for Declaratory and Injunctive Relief. (Attachments: # 1 Declaration of Benjamin T. Rice# 2 Exhibit A to Declaration of Rice# 3 Declaration of Jeff Fagot# 4 Declaration of Joe Montes# 5 Declaration of John Monday# 6 Declaration of Michael K. Brady# 7 Declaration of Personal Service)(Rice, Benjamin) Modified on 8/10/2006 (Duong, D). (Entered: 08/09/2006)

1294 REQUEST (Motion) to comply to permanent injunctive relief by Daren Jean Miller. (Donati, J) (Entered: 08/15/2006)

1295 REPLY In Support of Motion for Leave to File First Supplemental Civil Class Action Complaint for Declaratory and Injunctive Relief 1282 by plts . (Bien, Michael) Modified on 8/22/2006 (Duong, D). (Entered: 08/21/2006)

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 121 of 168

08/21/2006
08/28/2006
09/05/2006 09/05/2006 09/05/2006 09/06/2006 09/06/2006 09/13/2006 09/14/2006 09/15/2006 09/15/2006 10/02/2006
10/02/2006 10/03/2006 10/03/2006 10/06/2006

1296

DECLARATION of Michael W. Bien in SUPPORT OF Plaintiffs' Motion for Leave to File First Supplemental Civil Class Action Complaint for Declaratory and Injunctive Relief 1282 . (Attachments: # 1 Exhibits A − K)(Bien, Michael) Modified on 8/22/2006 (Duong, D). Modified on 8/22/2006 (Duong, D). (Entered: 08/21/2006)

1297

MINUTES (Text Only) for proceedings held before Judge Lawrence K. Karlton: MOTION HEARING held on 8/28/2006 re 1282 MOTION to AMEND the COMPLAINT filed by Plaintiffs. After oral argument, for the reason stated on the record in open court. The motion is DENIED. Plaintiffs Counsel Michael Bien, Gay Gunfeld, Meghan Lang, Susan Burrell present. Defendants Counsel Benjamin Rice present. Court Reporter: C. Bodene. (Rivas, A) (Entered: 08/28/2006)

1298 TRANSCRIPT of Motion to file Supplemental civil class action complaint held on 8/28/2006 before Judge Lawrence K. Karlton. Court Reporter: Catherine E.F. Bodene. (TEXT ONLY) (Matson, R) (Entered: 09/05/2006)

1299 ORDER signed by Judge Lawrence K. Karlton on 9/1/2006 ORDERING the Clerk to pay to Chase Riveland the amount of $26,337.03 in accordance w/the attached statement; and A copy of this order be served on Financial. (cc Financial)(Matson, R) (Entered: 09/05/2006)

SERVICE BY MAIL: 1299 Order served on Mark F Adams, Erika C Aljens, Alexander L Landon, and Michael J McCabe. (Matson, R) (Entered: 09/05/2006)

1300 ORDER signed by Judge Lawrence K. Karlton on 09/05/06 ORDERING that plaintiffs' for leave to file first supplemental complaint 1282 is DENIED. (Duong, D) (Entered: 09/06/2006)

SERVICE BY MAIL: 1300 Order served on Mark F Adams, Erika C Aljens, Alexander L Landon and Michael J McCabe. (Duong, D) (Entered: 09/06/2006)

1301 NOTICE of RELATED CASE 2:06−at934 by plts. (Attachments: # 1 Exhibit A−B)(Bien, Michael) Modified on 9/14/2006 (Duong, D). (Entered: 09/13/2006)

1302 FIRST REPORT on the Status of Conditions of the Remedial Order 796 by the Special Master. (Duong, D) (Entered: 09/14/2006)

1303 ORDER signed by Judge Lawrence K. Karlton on 09/14/06 re 1301 ORDERING that case 94cv671 LKK GGH is related with member of case 06cv2042 GEB DAD. (Duong, D) (Entered: 09/15/2006)

SERVICE BY MAIL: 1303 Order served on Mark F Adams, Erika C Aljens, Alexander L Landon and Michael J McCabe. (Duong, D) (Entered: 09/15/2006)

1304

ORDER signed by Judge Lawrence K. Karlton on 09/29/06 re ORDERING that the motion to order plts' counsel to comply to permanent injunctive relief 1294 is DENIED. The Clerk shall serve a copy of the attached motion on class counsel. (cc: Daren Miller at PO Box 2210, Susanville, CA 96127).(Duong, D) (Entered: 10/02/2006)

1305 REPLY/RESPONSE to First Report of Special Master 1302 by Jerry Valdivia and re 1234 Order. (Attachments: # 1 Exhibit Aug. 19, 2005 Order of Reference)(Galvan, Ernest) Modified on 10/3/2006 (Duong, D). (Entered: 10/02/2006)

1306 ORDER signed by Judge Lawrence K. Karlton on 10/02/2006 re 1233 ORDERING that Clerk is directed to pay to Chase Riveland the amount of $25,227.63 in accordance with the attachment. A copy of this order shall be served on the Financial Dept of this court. (cc: CFS).(Duong, D) (Entered: 10/03/2006)

SERVICE BY MAIL: 1306 Order, served on Mark F Adams, Erika C Aljens, Alexander L Landon and Michael J McCabe. (Duong, D) (Entered: 10/03/2006)

1307 STIPULATION and PROPOSED ORDER Re Undisputed Attorneys' Fees and Costs for Second Quarter of 2006 by Jerry Valdivia. (Attachments: # 1 Exhibit A# 2 Proposed Order)(Galvan, Ernest) (Entered: 10/06/2006)

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 122 of 168

10/11/2006 10/11/2006 11/07/2006 11/07/2006 11/07/2006 11/14/2006
11/14/2006 12/04/2006 01/04/2007 01/04/2007 01/10/2007 01/18/2007

1308 STIPULATION and ORDER signed by Judge Lawrence K. Karlton on 10/10/06 re 1307 ORDERING that plts' fees and costs of $603,581.56, plus interest, are due and collectable as of 45 days from the date of entry of this order. Daily interest runs from 9/11/06 at rate provided by 28:1961. (Duong, D) (Entered: 10/11/2006)

SERVICE BY MAIL: 1308 Stipulation and Order served on Mark F Adams, Erika C Aljens, Alexander L Landon and Michael J McCabe. (Duong, D) (Entered: 10/11/2006)

1309 ORDER signed by Judge Lawrence K. Karlton on 11/3/2006 ORDERING that the Clerk is directed to pay Chase Riveland, Valdivia Special Master, the amount of $31,713.91, and a copy of this order shall be served on the financial department of this court.(Matson, R) (Entered: 11/07/2006)

SERVICE BY MAIL: 1309 Order, served on Mark F Adams, Erika C Aljens, Alexander L Landon, and Michael J McCabe. (Matson, R) (Entered: 11/07/2006)

1310 NOTICE of CHANGE of ADDRESS by Holly MacLeish Baldwin. (Baldwin, Holly) (Entered: 11/07/2006)

1311

ORDER signed by Judge Lawrence K. Karlton on 11/13/06 re 1302 ORDERING that dfts shall provide additional resources to make information system application changes for the purposes of data collection, analysis, aggregation, and management reports, and other modifications as needed by the Special Master and the Court, with input from plaintiffs. The effort should be coordinated with the information system changes underway pursuant to the Armstrong court's order. To the extent that Defendants determine that certain of these functions can best be accomplished by modifying the DAPO information system, sufficient resources shall also be made available for that purpose. Planning for these changes shall be initiated within 60 days of this order. Defendants shall provide to the Special Master and Plaintiffs periodic reports on the progress of these changes; the first of these shall be due six months after the date of this order, and every six months thereafter until the Special Master determines the improvements are complete. The system changes shall be completed within one year and six months of this order. Defendants shall institute and maintain the infrastructure needed for self− monitoring, staffed by subject matter experts working in a department outside of the departments being reviewed. The infrastructure shall include staffing and resources sufficient to conduct site visits, assessments, and quality improvement efforts at the Decentralized Revocation Units, contracted jail facilities, contracted legal services for parolees, CDCR and non−CDCR facilities providing remedial sanctions, and other facilities and services falling under the auspices of the Valdivia remedies. (Duong, D) (Entered: 11/14/2006)

SERVICE BY MAIL: 1311 Order served on Mark F Adams, Erika C Aljens, Alexander L Landon and Michael J McCabe. (Duong, D) (Entered: 11/14/2006)

1312 ORDER signed by Judge Lawrence K. Karlton on 12/4/06: The Clerk is directed to pay to Special Master the amount of $19,207.85. A copy of this order shall be served on the financial department of this court.(Kaminski, H) (Entered: 12/04/2006)

1313

ORDER signed by Judge Lawrence K. Karlton on 01/04/07. The Clerk is directed to pay to: Chase Riveland, Valdivia Special Master 5714 Deer Harbor Road, Box 367 Deer Harbor, WA 98243, the amount of $20,819.26 in accordance with the attached statement; and a copy of this order shall be served to the Financial Department of this Court.(Mena−Sanchez, L) (Entered: 01/04/2007)

SERVICE BY MAIL: 1313 Order, served on Mark F Adams, Erika C Aljens, Alexander L Landon, Michael J McCabe. (Mena−Sanchez, L) (Entered: 01/04/2007)

1314 NOTICE of Addition of Designation of Counsel by dfts. (Nelson, Katherine) Modified on 1/10/2007 (Duong, D). (Entered: 01/10/2007)

1315 STIPULATION Confirming Undisputed Attorney's Fees and Costs for the Third Quarter of 2006 by Vincent Cervantes, Alfred Yancy, Hossie Welch, Jerry Valdivia, Steven G Williams, Russell P. Hall, Daren Jean Miller, Nghia Buckius, Mario Carillo, Phillip Castillo, George Cortes, Francis Culotta, David Dixon, Karl

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 123 of 168

01/18/2007
01/22/2007
01/22/2007 02/05/2007 02/05/2007 03/02/2007 03/02/2007 03/07/2007 03/07/2007 04/02/2007 04/02/2007 04/02/2007 04/04/2007 04/04/2007

Horne, Scott Iroff, Walter − Jones, Mustafa Khalil, Raymond Latimore, Andre Lyons, Claude McDaniel, Nathan Morris, Edward Navarro, Steven O'Donohue, Ogwuobu Ojoir, Willie Patton, James − Robinson, Troy Scurry, Mark St John, Gregory Strong, Alfred Taylor, Christopher Thomas, Jimmy Watson, Curtis Williams, John Hamre, Francis Culotta, Jeffrey H Malone. (Baldwin, Holly) (Entered: 01/18/2007)

1316

PROPOSED ORDER re 1315 by Vincent Cervantes, Alfred Yancy, Hossie Welch, Jerry Valdivia, Steven G Williams, Russell P. Hall, Daren Jean Miller, Nghia Buckius, Mario Carillo, Phillip Castillo, George Cortes, Francis Culotta, David Dixon, Karl Horne, Scott Iroff, Walter − Jones, Mustafa Khalil, Raymond Latimore, Andre Lyons, Claude McDaniel, Nathan Morris, Edward Navarro, Steven O'Donohue, Ogwuobu Ojoir, Willie Patton, James − Robinson, Troy Scurry, Mark St John, Gregory Strong, Alfred Taylor, Christopher Thomas, Jimmy Watson, Curtis Williams, John Hamre, Francis Culotta, Jeffrey H Malone. (Baldwin, Holly) Modified on 1/19/2007 (Mena−Sanchez, L). (Entered: 01/18/2007)

1317

ORDER signed by Judge Lawrence K. Karlton on 01/19/07 re 1315 1316 ORDERING that plaintiffs' fees and costs of $567,367.50, plus interest, are due and collectable as of 45days from the date of entry of this Order. Daily interest runs from December 18, 2006 at the rate provided by 28:1961. (Duong, D) (Entered: 01/22/2007)

SERVICE BY MAIL: 1317 Order served on Mark F Adams, Erika C Aljens, Alexander L Landon and Michael J McCabe. (Duong, D) (Entered: 01/22/2007)

1318 ORDER signed by Judge Lawrence K. Karlton on 2/5/07: The Clerk is directed to pay to C. Riveland the amount of $19,051.25. A copy of this order shall be served on the financial departement of this court.(Kaminski, H) (Entered: 02/05/2007)

SERVICE BY MAIL: 1318 Order served on Mark F Adams, Erika C Aljens, Alexander L Landon, Michael J McCabe .(Kaminski, H) (Entered: 02/05/2007)

1319 ORDER signed by Judge Lawrence K. Karlton on 03/01/07 ORDERING that the Clerk is directed to pay to Chase Riveland the amount of $29,393.40 in accordance with the attached statement. A copy of this order shall be served on the CFS. (Duong, D) (Entered: 03/02/2007)

SERVICE BY MAIL: 1319 Order served on Mark F Adams, Erika C Aljens, Alexander L Landon and Michael J McCabe. (Duong, D) (Entered: 03/02/2007)

1320 ORDER signed by Judge Lawrence K. Karlton on 3/6/07 ORDERING that the Second Report of the Special Master shall be filed with the Court on or before 6/4/07.(Engbretson, K.) (Entered: 03/07/2007)

SERVICE BY MAIL: 1320 Order served on Mark F. Adams, Erika C. Aljens, Alexander L. Landon and Michael J. McCabe. (Engbretson, K.) (Entered: 03/07/2007)

1321 ORDER signed by Judge Lawrence K. Karlton on 4/2/07 ORDERING that the Clerk is DIRECTED to pay Chase Riveland the amount of $35,688.35 in accordance with the attached statement. A copy of this order shall be served on Sac Financial. (cc: Sac Financial).(Brown, T) (Entered: 04/02/2007)

SERVICE BY MAIL: 1321 Order served on Mark F Adams, Erika C Aljens, Alexander L Landon, &Michael J McCabe. (Brown, T) (Entered: 04/02/2007)

1322 STIPULATION and PROPOSED ORDER Regarding Remedial Sanctions by Jerry Valdivia. (Bien, Michael) (Entered: 04/02/2007)

1323 STIPULATION and ORDER signed by Judge Lawrence K. Karlton on 4/3/07: The provisions of this Order shall remain in full force and effect until further order of this Court. (Kaminski, H) (Entered: 04/04/2007)

SERVICE BY MAIL: 1323 Stipulation and Order served on Mark F Adams, Erika C Aljens, Alexander L Landon, Michael J McCabe (Kaminski, H) (Entered: 04/04/2007)

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 124 of 168

04/05/2007 04/05/2007 04/06/2007 04/06/2007 04/25/2007
04/25/2007 05/02/2007
05/02/2007 05/09/2007 05/21/2007 05/22/2007 05/22/2007 05/25/2007 06/08/2007 06/11/2007 06/12/2007

1324 STIPULATION Confirming Undisputed Attorney's Fees and Costs for the Fourth Quarter of 2006 by plts. (Baldwin, Holly) Modified on 4/6/2007 (Duong, D). (Entered: 04/05/2007)

1325 PROPOSED ORDER Confirming Undisputed Attorney's Fees and Costs for the Fourth Quarter of 2006 re 1324 Stipulation . (Baldwin, Holly) Modified on 4/6/2007 (Duong, D). (Entered: 04/05/2007)

1326 ORDER Confirming Undisputed Attorneys' Fees and Costs for the 4th Quarter of 2006 signed by Judge Lawrence K. Karlton on 4/6/07 ORDERING that pltfs' fees and costs of $510,199.89, plus interest, are due and collectable as of 45 days from the date of entry of this Order. (Brown, T) (Entered: 04/06/2007)

SERVICE BY MAIL: 1326 Order, served on Mark F Adams, Erika C Aljens, Alexander L Landon, &Michael J McCabe. (Brown, T) (Entered: 04/06/2007)

1327

ORDER signed by Judge Lawrence K. Karlton on 04/25/07 ORDERING that within 30 days of the date of this order defendants shall deposit with the Clerk of the Court a second interim payment of costs in the amount of $500,000.00 which amount shall be invested in the interest−bearing account previously opened for this action. The Clerk is directed to serve a copy of of this order on the Financial Department of this Court. (cc: CFS). (Duong, D) Modified on 4/25/2007 (Duong, D). (Entered: 04/25/2007)

SERVICE BY MAIL: 1327 Order, served on Mark F Adams, Erika C Aljens, Alexander L Landon and Michael J McCabe. (Duong, D) (Entered: 04/25/2007)

1328

ORDER signed by Judge Lawrence K. Karlton on 5/1/07. The Clerk is directed to pay to Chase Riveland Valdivia Special Master 5714 Deer Harbor Road, Box 367 Deer Harbor, WA 98243 the amount of $35,921.71 in accordance with the attached statement. A copy of this order shall be served on the financial department of this Court.(Mena−Sanchez, L) (Entered: 05/02/2007)

SERVICE BY MAIL: 1328 Order, served on Mark F Adams, Erika C Aljens, Alexander L Landon, Michael J McCabe. (Mena−Sanchez, L) (Entered: 05/02/2007)

1329 DESIGNATION of COUNSEL FOR SERVICE. Added attorney Geoffrey Thomas Holtz for plts and attorney Karen Kennard terminated (Holtz, Geoffrey) Modified on 5/10/2007 (Donati, J). (Entered: 05/09/2007)

1330 STIPULATION and PROPOSED ORDER Confirming Payment of Remaining Attorneys' Fees for 2005−2006 by Jerry Valdivia. (Baldwin, Holly) (Entered: 05/21/2007)

1331 STIPULATION and ORDER 1330 confirming payment remaining attorneys' fees for 2005 − 2006 signed by Judge Lawrence K. Karlton on 5/22/07. It is CONFIRMED that $36,335.20 plus interest is due and collectable as of 45 days from date of entry of this Order.(Marciel, M) (Entered: 05/22/2007)

SERVICE BY MAIL: 1331 Stipulation and Order served on Mark F. Adams, Erika C. Aljens, Alexander L. Landon, and Michael J. McCabe. (Marciel, M) (Entered: 05/22/2007)

RECEIPT number 20114257 for $500,000.00 for Interpleader Funds from State of California. (Yin, K) (Entered: 05/25/2007)

1332 REVISED STIPULATED and PROPOSED PROTECTIVE ORDER Regarding Parole Defense Counsel Access to Witness Contact Information and Certain Mental Health Information re 1217 1226 1236 by plts. (Galvan, Ernest) Modified on 6/11/2007 (Duong, D). (Entered: 06/08/2007)

1335 SECOND REPORT OF THE SPECIAL MASTER on the status of conditions of the remedial order. (Carlos, K) (Entered: 06/12/2007)

1333 REVISED STIPULATED PROTECTIVE ORDER signed by Judge Lawrence K. Karlton on 6/11/2007 ORDERING for Parolee defense counsel access to witness contact information and certain mental health information. 1332 , 1217 , 1236 , 1226 (Reader, L) (Entered: 06/12/2007)

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 125 of 168

06/12/2007 06/12/2007 06/12/2007 06/12/2007 06/20/2007 06/22/2007 06/22/2007 06/25/2007 06/25/2007 06/26/2007 06/26/2007 06/27/2007 07/06/2007 07/06/2007 07/12/2007 07/26/2007

SERVICE BY MAIL: 1333 Revised Stipulated Protective Order served on Mark F Adams, Erika C Aljens, Alexander L Landon, Michael J McCabe (Reader, L) (Entered: 06/12/2007)
1334 ORDER signed by Judge Lawrence K. Karlton on 6/11/07 ORDERING the Clerk to pay Special Master, Chase Riveland the amount of $30,422.61. A copy of this order shall be served on the financial department of this court. (Carlos, K) (Entered: 06/12/2007)
SERVICE BY MAIL: 1334 Order served on Mark F Adams, Erika C Aljens, Alexander L Landon, Michael J McCabe. (Carlos, K) Modified on 6/12/2007 (Carlos, K). (Entered: 06/12/2007)
SERVICE BY MAIL: 1335 SECOND REPORT OF THE SPECIAL MASTER on Mark F Adams, Erika C Aljens, Alexander L Landon, Michael J McCabe (Carlos, K) (Entered: 06/12/2007)
1336 DESIGNATION of COUNSEL FOR SERVICE. Added attorney Jessica R. Devencenzi and Vickie P. whitney for dfts and attorney Katherine Kylin Nelson terminated (Attachments: # 1 Declaration of Service)(Devencenzi, Jessica) Modified on 6/21/2007 (Duong, D). (Entered: 06/20/2007)
1337 REPLY/RESPONSE to Second Report of the Special Master on the Status of Conditions of the Remedial Order by pltfs re 1335 . Attorney Galvan, Ernest added. (Galvan, Ernest) Modified on 6/25/2007 (Manzer, C). (Entered: 06/22/2007)
1338 DECLARATION of Maria V. Morris in SUPPORT OF 1337 Reply/Response to the Second Report of the Special Master. (Attachments: # 1 Exhibit A # 2 Exhibit B # 3 Exhibit C # 4 Exhibit D # 5 Exhibit E # 6 Exhibit F)(Galvan, Ernest) Modified on 6/25/2007 (Manzer, C). (Entered: 06/22/2007)
1339 [DISREGARD ENTRY − CORRECT DOCUMENT TO BE RE−FILED BY ATTORNEY] STIPULATION Confirming Undisputed Attorneys' Fees and Costs for the First Quarter of 2007 by Jerry Valdivia. (Baldwin, Holly) Modified on 6/27/2007 (Carlos, K). (Entered: 06/25/2007)
1340 PROPOSED ORDER Confirming Undisputed Attorneys' Fees and Costs for the First Quarter of 2007 re 1339 Stipulation by Jerry Valdivia. (Baldwin, Holly) (Entered: 06/25/2007)
1341 ORDER 1340 signed by Judge Lawrence K. Karlton on 6/26/07. Plaintiffs' fees and costs of $646.982.87, plus interest, due and collectable as or 45 days from date of entry of this Order. Daily interest runs from 6/4/07 at rate provided by 28 USC 1961. (Marciel, M) (Entered: 06/26/2007)
SERVICE BY MAIL: 1341 Order served on Mark F. Adams, Erika C. Aljens, Alexander L. Landon, Michael J. McCabe. (Marciel, M) (Entered: 06/26/2007)
1342 STIPULATION Confirming Undisputed Attorneys' Fees and Costs for the First Quarter of 2007 by Jerry Valdivia. (Baldwin, Holly) (Entered: 06/27/2007)
1343 ORDER signed by Judge Lawrence K. Karlton on 7/5/07: The Clerk is directed to pay to Chase Riveland the amount of $23,263.62 in accordance with the attached statement and a copy of this order shall be served on the financial department of this court. (Kaminski, H) (cc: financial department) (Entered: 07/06/2007)
SERVICE BY MAIL: 1343 Order, served on Mark F Adams, Erika C Aljens, Alexander L Landon, Michael J McCabe. (Kaminski, H) (Entered: 07/06/2007)
1344 REPLY by dfts to Plaintiffs' Response 1337 to the Second Report of the Special Master on the Status of Conditions of the Remedial Order 1335 . (Attachments: # 1 Declaration of Service)(Whitney, Vickie) Modified on 7/13/2007 (Duong, D). (Entered: 07/12/2007)
1345 MOTION For Order Finding Defendants in Violation of Permanent Injunction 1034 by plts.Motion Hearing set for 8/27/2007 at 10:00 AM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. (Holtz, Geoffrey) Modified on 7/27/2007 (Duong, D). (Entered: 07/26/2007)

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 126 of 168

07/26/2007 07/26/2007 07/26/2007 07/26/2007 07/26/2007 07/26/2007 07/26/2007 07/26/2007 07/27/2007 07/30/2007
07/31/2007
07/31/2007 08/03/2007
08/17/2007 08/17/2007
08/17/2007
08/17/2007

1346 DECLARATION of Tracey Berger, part 1 in SUPPORT OF re 1345 MOTION For Order Finding Defendants in Violation of Permanent Injunction. (Holtz, Geoffrey) Modified on 7/27/2007 (Duong, D). (Entered: 07/26/2007)

1347 DECLARATION of Tracey Berger, part 2 in SUPPORT OF re 1345 MOTION For Order Finding Defendants in Violation of Permanent Injunction. (Holtz, Geoffrey) Modified on 7/27/2007 (Duong, D). (Entered: 07/26/2007)

1348 DECLARATION of Tracey Berger, part 3 in SUPPORT OF re 1345 MOTION For Order Finding Defendants in Violation of Permanent Injunction. (Holtz, Geoffrey) Modified on 7/27/2007 (Duong, D). (Entered: 07/26/2007)

1349 DECLARATION of Tracey Berger, part 4 in SUPPORT OF re 1345 MOTION For Order Finding Defendants in Violation of Permanent Injunction. (Holtz, Geoffrey) Modified on 7/27/2007 (Duong, D). (Entered: 07/26/2007)

1350 DECLARATION of Tracey Berger, part 5 in SUPPORT OF re 1345 MOTION For Order Finding Defendants in Violation of Permanent Injunction. (Holtz, Geoffrey) Modified on 7/27/2007 (Duong, D). (Entered: 07/26/2007)

1351 DECLARATION of Tracey Berger, part 6 in SUPPORT OF re 1345 MOTION For Order Finding Defendants in Violation of Permanent Injunction. (Holtz, Geoffrey) Modified on 7/27/2007 (Duong, D). (Entered: 07/26/2007)

1352 NOTICE of Filing Sealed Documents pursuant to Protective Orders by plts . (Holtz, Geoffrey) Modified on 7/27/2007 (Duong, D). (Entered: 07/26/2007)

1353 PROPOSED ORDER re 1345 MOTION For Order Finding Defendants in Violation of Permanent Injunction. (Holtz, Geoffrey) Modified on 7/27/2007 (Duong, D). (Entered: 07/26/2007)

1354 SEALED EVENT (Matson, R) (Entered: 07/27/2007)

1355 STIPULATION and PROPOSED ORDER Rescheduling 1345 Pltfs' Motion For An Order Finding Defendants in Violation of Permanent Injunction by Dfts. (Attachments: # 1 Declaration of Service)(Devencenzi, Jessica) Modified on 7/31/2007 (Kastilahn, A). (Entered: 07/30/2007)

1356

STIPULATION and ORDER signed by Judge Lawrence K. Karlton on 7/31/07 ORDERING the hearing on the 1345 Motion For Order Finding Defendants in Violation of Permanent Injunction RESET for 9/10/2007 at 10:00 AM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. (Donati, J) (Entered: 07/31/2007)

SERVICE BY MAIL: 1356 Stipulation and Order served on Mark F Adams, Erika C Aljens, Alexander L Landon, Michael J McCabe (Donati, J) (Entered: 07/31/2007)

1357 ORDER signed by Judge Lawrence K. Karlton on 8/2/07 ORDERING that the clerk is directed to pay Chase Riveland, Valdivia Special Master, $18,549.48 in accordance with the attached statement. The court shall serve a copy of this order on the financial department. (cc Financial) (Donati, J) (Entered: 08/03/2007)

1358 OPPOSITION to 1345 MOTION for Order finding defendants in violation of Permanent Injunction. Attorney Whitney, Vickie Pochelle added. (Whitney, Vickie) Modified on 8/21/2007 (Marciel, M). (Entered: 08/17/2007)

1359 DECLARATION of Vickie P. Whitney in support of defendants' Opposition to plaintiffs' Motion for Order finding defendants in violation of Permanent Injunction. (Attachments: # 1 Exhibit 1 and 2) (Whitney, Vickie) Modified on 8/21/2007 (Marciel, M). (Entered: 08/17/2007)

1360 DECLARATION of Laura Campoy in support of defendants' Opposition to plaintiffs' Motion for Order finding defendants in violation of Permanent Injunction. (Whitney, Vickie) Modified on 8/21/2007 (Marciel, M). (Entered: 08/17/2007)

1361 REQUEST for JUDICIAL NOTICE of defendants' 1358 Opposition to Motion for Order finding defendans in violation of Permanent Injunction. (Whitney, Vickie)

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 127 of 168

08/31/2007 08/31/2007 08/31/2007
09/05/2007 09/05/2007 09/10/2007
09/13/2007 09/13/2007 09/17/2007 09/18/2007
09/24/2007 09/25/2007

Modified on 8/21/2007 (Marciel, M). (Entered: 08/17/2007)

1362 REPLY to 1358 RESPONSE to 1345 MOTION For Order (Holtz, Geoffrey) Modified on 9/4/2007 (Kaminski, H). (Entered: 08/31/2007)

1363 SUPPLEMENTAL DECLARATION of Tracey Berger in SUPPORT of 1362 reply (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D)(Holtz, Geoffrey) Modified on 9/4/2007 (Kaminski, H). (Entered: 08/31/2007)

1364

OBJECTIONS by Plaintiffs Vincent Cervantes, Alfred Yancy, Hossie Welch, Jerry Valdivia, Steven G Williams, Russell P. Hall, Daren Jean Miller, Nghia Buckius, Mario Carillo, Phillip Castillo, George Cortes, Francis Culotta, David Dixon, Karl Horne, Scott Iroff, Walter − Jones, Mustafa Khalil, Raymond Latimore, Andre Lyons, Claude McDaniel, Nathan Morris, Edward Navarro, Steven O'Donohue, Ogwuobu Ojoir, Willie Patton, James − Robinson, Troy Scurry, Mark St John, Gregory Strong, Alfred Taylor, Christopher Thomas, Jimmy Watson, Curtis Williams, John Hamre, Francis Culotta, Jeffrey H Malone to 1360 , 1359 Evidence (Holtz, Geoffrey) Modified on 9/4/2007 (Kaminski, H). (Entered: 08/31/2007)

1365 ORDER signed by Judge Lawrence K. Karlton on 9/4/07: The Clerk is directed to pay to Chase Riveland the amount of $46,997.02. A copy of this order shall be served on the financial department of this court. (Kaminski, H) (cc: financial) (Entered: 09/05/2007)

SERVICE BY MAIL: 1365 Order served on Mark F Adams, Erika C Aljens, Alexander L Landon, Michael J McCabe. (Kaminski, H) (Entered: 09/05/2007)

1366

MINUTES (Text Only) for proceedings held before Judge Lawrence K. Karlton: MOTION HEARING held on 9/10/2007 re 1345 MOTION For Order Finding Defendants in Violation of Permanent Injunction. The Court continues the matter for further proceedings. Motion Hearing set for 9/18/2007 at 01:30 PM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. Plaintiffs Counsel Geoffrey Holtz, Michael Bien, Ernest Galvan, Tracey Berger present. Defendants Counsel Vicki Whitney, Jessica Devencenzi present. Court Reporter: C. Bodene. (Rivas, A) (Entered: 09/12/2007)

1367 TRANSCRIPT of Oral Argument on Plaintiffs' Motion for Order Finding Defendants in Violation of Permanent Injunction held on 9/10/07 before Judge Lawrence K. Karlton. Court Reporter: Catherine E.F. Bodene. (TEXT ONLY) (Anderson, J) (Entered: 09/13/2007)

1368

COMPENDIUM of RELEVANT STATUTES re 1345 Motion for order finding defendants in violation of permanent injunction. and Procedures (Attachments: # 1 Exhibit A # 2 Exhibit B # 3 Exhibit C # 4 Exhibit D # 5 Exhibit E)(Holtz, Geoffrey) Modified on 9/19/2007 (Manzer, C). Modified on 9/19/2007 (Reader, L). (Entered: 09/13/2007)

1369 OBJECTIONS to Plaintiffs' Compendium of Relevant Statutes and Procedures Re: Plaintiffs' Motion for Order Finding Defendants in Violation of Permanent Injunction 1368 . (Attachments: # 1 Proof of Service)(Whitney, Vickie) Modified on 9/19/2007 (Manzer, C). (Entered: 09/17/2007)

1370

MINUTES (Text Only) for MOTION HEARING held before Judge Lawrence K. Karltonon 9/18/2007: Plaintiffs' MOTION For Order Finding Defendants in Violation of Permanent Injunction 1345 is SUBMITTED. The Court shall issue a written Order. Plaintiffs Counsel Geoffrey Holtz, Ernest Galvan, Tracey Berger present. Defendants Counsel Vicki Whitney, Jessica Devencenzi present. Court Reporter: C. Bodene. (Krueger, M) (Entered: 09/18/2007)

1373 NOTICE of CHANGE of ADDRESS by Lenal K. Shabazz to: 340 N. Madison Avenue, #101 in Los Angeles, CA 90004−3504. (Marciel, M) (Entered: 10/01/2007)

1371 ORDER signed by Judge Lawrence K. Karlton on 9/25/07 ORDERING the parties to submit supplemental briefing no later than 10/5/07. Parties are limited to 25 pages. (Donati, J) (Entered: 09/25/2007)

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 128 of 168

09/25/2007 09/28/2007 09/28/2007 10/01/2007 10/01/2007 10/05/2007
10/05/2007 10/05/2007 10/05/2007 10/10/2007
10/10/2007 10/22/2007 10/22/2007 10/23/2007 10/23/2007 10/29/2007
10/29/2007 11/07/2007

SERVICE BY MAIL: 1371 Order served on Mark F Adams, Erika C Aljens, Alexander L Landon, Michael J McCabe (Donati, J) (Entered: 09/25/2007)

1372 ORDER signed by Judge Lawrence K. Karlton on 9/27/07: 1345 The plaintiffs' motion for finding the defendants in violation of the permanent injunction is DENIED in part. (Kaminski, H) (Entered: 09/28/2007)

SERVICE BY MAIL: 1372 Order, served on Mark F Adams, Erika C Aljens, Alexander L Landon, Michael J McCabe. (Kaminski, H) (Entered: 09/28/2007)

1374 ORDER signed by Judge Lawrence K. Karlton on 10/1/07 ORDERING that the clerk is directed to pay Valdivia Speacial master, Chase Riveland, $48,225.01. (cc Sacramento Financial) (Donati, J) (Entered: 10/01/2007)

SERVICE BY MAIL: 1374 Order served on Mark F Adams, Erika C Aljens, Alexander L Landon, Michael J McCabe (Donati, J) (Entered: 10/01/2007)

1375 BRIEF Regarding Whether Remedial Plan Under Permanent Injunction May Apply to Civil Addicts by Arnold Schwarzenegger. (Attachments: # 1 Declaration of Laura Campoy in Support of Defendants' Supplemental Brief)(Whitney, Vickie) (Entered: 10/05/2007)

1376 MEMORANDUM/RESPONSE in SUPPORT. Supplemental Brief Re Application Of Valdivia Remedial Plan To Civil Addict Statutory And Regulatory Framework (Holtz, Geoffrey) (Entered: 10/05/2007)

1377 DECLARATION of Albert Senella in SUPPORT OF re 1345 MOTION For Order Finding Defendants in Violation of Permanent Injunction. (Holtz, Geoffrey) (Entered: 10/05/2007)

1378 DECLARATION of Geoffrey Holtz in SUPPORT OF re 1345 MOTION For Order Finding Defendants in Violation of Permanent Injunction. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C)(Holtz, Geoffrey) (Entered: 10/05/2007)

1379 OBJECTIONS by Defendant Arnold Schwarzenegger. to Declaration of Albert Senella Filed in Support of Plaintiffs' Notice of Motion and Motion for Order Finding Defendants in Violation of Permanent Injunction (Whitney, Vickie) (Entered: 10/10/2007)

1380 TRANSCRIPT of Oral Argument on plts' Motion for order finding dfts in violation of permanent injunction held on 9/18/07 before Judge Lawrence K. Karlton. Court Reporter: C. Bodene. (TEXT ONLY) (Duong, D) (Entered: 10/11/2007)

1381 ORDER signed by Judge Lawrence K. Karlton on 10/22/2007 ORDERING the plaintiffs' motion to find the defendants in violation of the permanent injunction is DENIED. 1345 , 1372 , 1375 , 1379 . (Reader, L) (Entered: 10/22/2007)

SERVICE BY MAIL: 1381 Order served on Mark F Adams, Erika C Aljens, Alexander L Landon, Michael J McCabe (Reader, L) (Entered: 10/22/2007)

1382 STIPULATION Confirming Undisputed Attorneys' Fees and Costs for the Second Quarter of 2007 by Jerry Valdivia. (Baldwin, Holly) (Entered: 10/23/2007)

1383 PROPOSED ORDER Confirming Undisputed Attorneys' Fees and Costs for the Second Quarter of 2007 re 1382 Stipulation by Jerry Valdivia. (Baldwin, Holly) (Entered: 10/23/2007)

1384

STIPULATION and ORDER 1382 confirming undisputed attorney's fees and costs for Second Quarter of 2007 signed by Judge Lawrence K. Karlton on 10/26/07. Plaintiffs' fees and costs of $655,254.63, plus interest, are due and collectable as of 45 days from date of entry of this Order. Daily interest runs from 9/10/07 at rate provided by 28 USC Section 1961. (Marciel, M) (Entered: 10/29/2007)

SERVICE BY MAIL: 1384 Order confirming Undisputed Attorney's fees served on Mark F Adams, Erika C Aljens, Alexander L Landon, and Michael J McCabe. (Marciel, M) (Entered: 10/29/2007)

1385 REQUEST (motion) to compel Federal protection by non−party Gregory Brownlee (Becknal, R) (Entered: 11/08/2007)

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 129 of 168

11/08/2007
11/09/2007 11/28/2007
11/28/2007 11/28/2007 11/28/2007 12/05/2007 12/05/2007 12/06/2007
12/21/2007 01/04/2008 01/04/2008 01/15/2008
01/15/2008

1386

ORDER signed by Judge Lawrence K. Karlton on 11/8/2007 ORDERING the Clerk is directed to pay to Chase Riveland, Valdivia Special Master the amount of $49,815.02 accordance with the statement for services provided during the month of October 2007. A copy of this order shall be served on the financial department of the Court. 1233 (Reader, L) (Entered: 11/08/2007)

SERVICE BY MAIL: 1386 Order, served on Mark F Adams, Erika C Aljens, Alexander L Landon, Michael J McCabe (Reader, L) (Entered: 11/09/2007)

1387

ORDER signed by Judge Lawrence K. Karlton on 11/28/07 ORDERING that the court has timely received the Third Report of the Special Master on the Status of Conditions of the Remedial Order 796 and now orders it filed. The parties have 10 days from the date of this order to respond to this report. (Duong, D) (Entered: 11/28/2007)

1388 THIRD REPORT of the Special Master on the Status of Condition of the Remedial Order 796 by Chase Riveland. (Duong, D) (Entered: 11/28/2007)

SERVICE BY MAIL: 1387 Order, 1388 Status Report served on Mark F Adams, Erika C Aljens, Alexander L Landon, Michael J McCabe. (Duong, D) (Entered: 11/28/2007)

CLERK'S NOTICE of DOCKET CORRECTION duplicate order of 1387 removed from docket (Holland, K) (Entered: 11/28/2007)

1389 ORDER signed by Judge Lawrence K. Karlton on 12/5/07. Pursuant to Court's 1233 Order of Reference, Clerk directed to pay Special Master Chase Riveland amount of $41,494.05 in accordance with attached Statement. Copy of Order shall be served on Financial Department. (Marciel, M) (Entered: 12/05/2007)

SERVICE BY MAIL: 1389 Order for Payment of Special Master served on Mark F Adams, Erika C Aljens, Alexander L Landon, Michael J McCabe. (Marciel, M) (Entered: 12/05/2007)

1390

REPLY to 1388 the Third Report of the Special Master on the Status of Conditions of the Remedial Order by Marisela Montes, James W Nielsen, Carol J Bentley, Thomas J Giaquinto, John W Gillis, Manuel C Guaderrama, Ron E Koenig, Arthur F Van Court, Quintin L Villanueva, Cal A Terhune, Michael Connolly(Acting Chief Deputy Commissioners of the Board of Prison Terms of the State of CA), Edward McNair, California Attorneys Administrative Law Judges and Hearing Officers in State Employment, Arnold Schwarzenegger, Michael Connolly(Acting Cheif Deputy Commissioner of the Board of Prison Terms) (Whitney, Vickie) Modified on 12/7/2007 (Kastilahn, A). (Entered: 12/06/2007)

1391 REPLY to Defs' Response to 3d Report of the Special Master by Jerry Valdivia re 1390 Reply/Response, 1388 Status Report. (Galvan, Ernest) Modified on 12/26/2007 (Kaminski, H). (Entered: 12/21/2007)

1392 ORDER signed by Judge Lawrence K. Karlton on 1/4/08. Clerk directed to pay Chase Riveland, Valdivia Special Master, the amount of $30,889.60 in accordance with attached Statement. A copy of Order shall be served on Financial Department of this Court. (Marciel, M) (Entered: 01/04/2008)

SERVICE BY MAIL: 1392 Order for payment to Special Master served on attorneys Mark F Adams, Erika C Aljens, Alexander L Landon, and Michael J McCabe. (Marciel, M) (Entered: 01/04/2008)

1393

ORDER signed by Judge Lawrence K. Karlton on 1/14/2008 ORDERING Dfts must provide progress updates to the Special Master and Pltfs' counsel every three weeks, begining three weeks from the date of this order, until the Special Master Determines they are no longer necessary. The Special Master my, in his discretion, grant an extension of time on any deadlines upon either party's request and a showing of good cause.(Reader, L) (Entered: 01/15/2008)

SERVICE BY MAIL: 1393 Order, served on Mark F Adams, Erika C Aljens, Alexander L Landon, Michael J McCabe (Reader, L) (Entered: 01/15/2008)

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01/16/2008 01/16/2008 01/22/2008 01/22/2008 02/04/2008 02/04/2008 02/25/2008 02/28/2008
02/28/2008 02/28/2008 02/28/2008 02/28/2008
02/28/2008
02/28/2008

1394 STIPULATION Confirming Undisputed Attorneys' Fees and Costs for the Third Quarter of 2007 by the parties. (Baldwin, Holly) Modified on 1/17/2008 (Becknal, R). (Entered: 01/16/2008)

1395 PROPOSED ORDER Confirming Undisputed Attorneys' Fees and Costs for the Third Quarter of 2007 of 1394 stipulation by the parties. (Baldwin, Holly) Modified on 1/17/2008 (Becknal, R). (Entered: 01/16/2008)

1396 ORDER signed by Senior Judge Lawrence K. Karlton on 1/18/08 ORDERING that plaintiffs fees and costs of $737,729.58, plus interest, are due and collectable as of 45 days from the date of entry of this Order. (Anderson, J) (Entered: 01/22/2008)

SERVICE BY MAIL: 1396 Order served on Mark F Adams, Erika C Aljens, Alexander L Landon, Michael J McCabe. (Anderson, J) (Entered: 01/22/2008)

1397 ORDER signed by Senior Judge Lawrence K. Karlton on 2/4/08 ORDERING Chase Riveland the amount of $37,693.54 accordance with the attached statement and a copy of this order shall be served on the financial department of this court. (cc: Financial) (Anderson, J) (Entered: 02/04/2008)

SERVICE BY MAIL: 1397 Order, served on Mark F Adams, Erika C Aljens, Alexander L Landon, Michael J McCabe (Anderson, J) (Entered: 02/04/2008)

1398 REPORT AND RECOMMENDATION by Chase Riveland. (Kaminski, H) (Entered: 02/26/2008)

1399

OBJECTIONS To Report and Recommendation Regarding Motion to Enforce Paragraph 24 of the Valdivia Permanent in Junction and Request for Hearing by Defendant Arnold Schwarzenegger. (Attachments: # 1 Certificate Proof of Service)(Whitney, Vickie) Modified on 3/5/2008 (Manzer, C). (Entered: 02/28/2008)

1400 REPLY/RESPONSE to Plaintiffs' Reply to Opposition to Motion to Enforce Paragraph 24 of the Valdivia Permanent Injunction by Arnold Schwarzenegger re 1399 Objections,. (Attachments: # 1 Certificate Proof of Service)(Whitney, Vickie) (Entered: 02/28/2008)

1401 OPPOSITION by Defendant Arnold Schwarzenegger to 1399 Objections,. to Plaintiffs' Motion to Enforce Paragraph 24 of the Valdivia Permanent Injunction (Attachments: # 1 Certificate Proof of Service)(Whitney, Vickie) (Entered: 02/28/2008)

1402 DECLARATION of Patricia Cassady in in Support of re 1399 Objections,. Defendants' Opposition to Plaintiffs' Motion to Enforce Paragraph 24 of the Valdivia Permanent Injunction (Attachments: # 1 Certificate Proof of Service)(Whitney, Vickie) (Entered: 02/28/2008)

1403

NOTICE OF FILING / LODGING DOCUMENT IN PAPER Exhibit A to Declaration of Patricia Cassady in Support of Defendants' Opposition to Plaintiffs' Motion to Enforce Paragraph 24 of the Valdivia Permanent Injunction by Arnold Schwarzenegger: Sealed Document Lodged with court pursuant to Stipulated Protective Order of July 11 2000 Docket number 519. (Attachments: # 1 Supplement Stipulated Protective Order of July 11 2000, # 2 Supplement Sealed Document Cover Page, # 3 Certificate Proof of Service)(Whitney, Vickie) (Entered: 02/28/2008)

1404

NOTICE OF FILING / LODGING DOCUMENT IN PAPER Objections to Plaintiff's Evidence Offered in Support of Motion to Enforce Paragraph 24 of the Valdivia Permanent Injunction by Arnold Schwarzenegger: Sealed Document Lodged with court pursuant to Stipulated Protective Order of July 11 2000 Docket number 519. (Attachments: # 1 Supplement Stipulated Protective Order of July 11 2000, # 2 Supplement Sealed Document Cover Page, # 3 Certificate Proof of Service)(Whitney, Vickie) (Entered: 02/28/2008)

1405 NOTICE OF FILING / LODGING DOCUMENT IN PAPER Defendants' Response to Plaintiffs' Reply to Defendants' Objections to Plaintiffs' Evidence Offered in Support of Motion to Enforce Paragraph 24 of the Valdivia Permanent Injunction; Objections to Reply Declaration of Shirley Huey by Arnold

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 131 of 168

02/28/2008
02/28/2008
02/28/2008 02/28/2008 02/28/2008 03/03/2008 03/03/2008 03/03/2008
03/04/2008
03/04/2008 03/07/2008
03/07/2008
03/10/2008 03/10/2008
03/10/2008 03/10/2008

Schwarzenegger: Sealed Document Lodged with court pursuant to Stipulated Protective Order of July 11 2000 Docket number 519. (Attachments: # 1 Supplement Stipulated Protective Order of July 11 2000, # 2 Supplement Sealed Document Cover Page, # 3 Certificate Proof of Service)(Whitney, Vickie) (Entered: 02/28/2008)

1406 REQUEST for Adoption with Amendments of The Special Master's Report and Recommendations Re Plaintiffs' Motion to Enforce Paragraph 24 of the Valdivia Permanent Injunction by Jerry Valdivia re 1398 Notice − Other filed by Chase Riveland. (Galvan, Ernest) (Entered: 02/28/2008)

1407

SUPPLEMENT by Arnold Schwarzenegger re 1399 Objections,. Supplemental Declaration of Patricia Cassady in Support of Defendants' Response to Report and Recommendations Regarding Motion to Enforce Paragraph 24 of the Valdivia Permanent Injunction (Attachments: # 1 Certificate Proof of Service)(Whitney, Vickie) (Entered: 02/28/2008)

1408 SEALED EVENT (Attachments: # 1 Sealed) (Marciel, M) (Entered: 02/29/2008)

1409 SEALED EVENT (Marciel, M) (Entered: 02/29/2008)

1410 SEALED EVENT (Marciel, M) (Entered: 02/29/2008)

1411 SEALED EVENT (Attachments: # 1 Exhibit A, # 2 Exhibit A part 2, # 3 Exhibit A part 3, # 4 Exhibit A part 4, # 5 Exhibit B, # 6 Exhibit C, # 7 Exhibit D) (Waggoner, D) (Entered: 03/03/2008)

1412 SEALED EVENT (Attachments: # 1 Exhibit E, # 2 Exhibit F, # 3 Exhibit G, # 4 Exhibit H) (Waggoner, D) (Entered: 03/03/2008)

1413 ORDER signed by Senior Judge Lawrence K. Karlton on 3/3/08 ORDERING that the Clerk is directed to pay to Chase Riveland the amount of $36,410.59 accordance with the attached statement. A copy of this order shall be served on the Financial department of this court. (cc: CFS).(Duong, D) (Entered: 03/04/2008)

1414 ORDER signed by Senior Judge Lawrence K. Karlton on 3/4/08 ORDERING that pltfs' response, if any, to the dfts' objections shall be filed and served no later than seven days from the date of this order. Pltfs' response shall be no longer than 10 pages.(Kastilahn, A) (Entered: 03/04/2008)

SERVICE BY MAIL: 1414 Order served on Mark F Adams, Erika C Aljens, Alexander L Landon, and Michael J McCabe. (Kastilahn, A) (Entered: 03/04/2008)

1415 MOTION to SEAL Response to Defendants' Objections to Plaintiffs' Evidence Offered in Support of Motion to Enforce Paragraph 24 of the Valdivia Permanent Injunction by Jerry Valdivia. Attorney Stewart, Loren Grey added. (Stewart, Loren) (Entered: 03/07/2008)

1416 PROPOSED ORDER re 1415 MOTION to SEAL Response to Defendants' Objections to Plaintiffs' Evidence Offered in Support of Motion to Enforce Paragraph 24 of the Valdivia Permanent Injunction by Jerry Valdivia. (Stewart, Loren) (Entered: 03/07/2008)

1417 NOTICE OF FILING SEALED DOCUMENT (Stewart, Loren) Modified on 3/11/2008 (Kaminski, H). (Entered: 03/10/2008)

1418 ORDER granting 1415 Motion to Seal signed by Senior Judge Lawrence K. Karlton on 3/10/08: The Plaintiffs' Response to Defendants' Objections to Plaintiffs' Evidence, shall be filed under seal by the Clerk of the Court and made available only to the Court or counsel. (Kaminski, H) (Entered: 03/10/2008)

1419 SEALED EVENT (Anderson, J) (Entered: 03/10/2008)

1420 RESPONSE to 1406 Plaintiff's Request for Adoption with Amendments of the Special Master's Report and Recommendation Regarding Motion to Enforce Paragraph 24 of the Valdivia Permanent Injunction by Arnold Schwarzenegger. (Whitney, Vickie) Modified on 3/11/2008 (Kaminski, H). (Entered: 03/10/2008)

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03/10/2008
03/25/2008
03/25/2008 04/03/2008 04/03/2008 04/07/2008 04/07/2008 04/07/2008 04/07/2008 04/08/2008
04/08/2008 04/08/2008
04/08/2008 04/09/2008
04/09/2008

1421

REPLY to Defendants' Objections to Special Master's Report and Recommendation re: Motion to Enforce Paragraph 24 of the Valdivia Permanent Injunction by Jerry Valdivia re 1419 Sealed Event, 1399 Objections, 1398 Notice, 1406 Request. (Stewart, Loren) Modified on 3/11/2008 (Kaminski, H). (Entered: 03/10/2008)

1422

ORDER signed by Senior Judge Lawrence K. Karlton on 3/25/08. The Court ADOPTS the Special Master's 1398 Report and Recommendations re Motion to Enforce Paragraph 24 of Valdivia Permanent Injunction. The parties shall undertake acts recommended by Special Master at pp. 26 − 29 of Report. The Court defers to Special Master to ensure these acts are timely accomplished. (Marciel, M) (Entered: 03/25/2008)

SERVICE BY MAIL: 1422 Order served on Mark F Adams, Alexander L Landon, and Michael J McCabe. (Marciel, M) (Entered: 03/25/2008)

1423 ORDER signed by Senior Judge Lawrence K. Karlton on 4/2/08 ORDERING that the Clerk is directed to pay to Chase Riveland, Valdivia Special Master, the amt of $72,727.68 accordance with the attached statement. A copy of this order shall be served on the financial dept of this court.(Kastilahn, A) (Entered: 04/03/2008)

SERVICE BY MAIL: 1423 Order served on Mark F Adams, Alexander L Landon, and Michael J McCabe. (Kastilahn, A) (Entered: 04/03/2008)

1424 NOTICE of APPEAL by Arnold Schwarzenegger as to 1422 Order. (Whitney, Vickie) Modified on 4/7/2008 (Marciel, M). (Entered: 04/07/2008)

1425 STIPULATION Confirming Undisputed Attorney's Fees and Costs for the Fourth Quarter of 2007 by Jerry Valdivia. (Baldwin, Holly) (Entered: 04/07/2008)

1426 PROPOSED ORDER Confirming Undisputed Attorney's Fees and Costs for the Fourth Quarter of 2007 re 1425 Stipulation by Jerry Valdivia. (Baldwin, Holly) (Entered: 04/07/2008)

RECEIPT number # CAE200006139 of $455 for Notice of Appeal by Attorney General's Office for State of CA. (Marciel, M) (Entered: 04/07/2008)

1427

APPEAL PROCESSED to Ninth Circuit re 1424 Notice of Appeal − ATY filed by Arnold Schwarzenegger. Filed dates for Notice of Appeal *4/7/2008*, Complaint *5/2/1994* and Appealed Order / Judgment *3/25/2008*. Court Reporter: *N/A*. *Fee Status: Paid on 4/7/2008 in the amount of $455.00* ** (Attachments: # 1 Appeal Notice, # 2 Certificate) (Duong, D) (Entered: 04/08/2008)

SERVICE BY MAIL: 1427 Appeal Processed to USCA, served on Mark F Adams, Alexander L Landon, Michael J McCabe. (Duong, D) (Entered: 04/08/2008)

1428

MOTION to STAY re 1422 Order Adopting The Special Master's Report And Recommendation Regarding Motion To Enforce Paragraph 24 Of The Valdivia Permanent Injunction by dfts. Motion Hearing set for 5/5/2008 at 10:00 AM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. (Attachments: # 1 Points and Authorities, # 2 Exhibits A thru C, # 3 Declaration of Carolyn Deitsch, # 4 Proof of Service)(Whitney, Vickie) Modified on 4/9/2008 (Duong, D). (Entered: 04/08/2008)

1429 STIPULATION and PROPOSED ORDER for Shortening Time for Briefing and Hearing on Defendants' 1428 Motion to Stay Order.(Whitney, Vickie) Modified on 4/9/2008 (Duong, D). (Entered: 04/08/2008)

1430

ORDER CONFIRMING UNDISPUTED Attorneys' fees and costs for the Fourth Quarter of 2007 signed by Senior Judge Lawrence K. Karlton on 4/8/2008 ORDERING 1426 that plaintiffs' fees and costs of $491,277.70, plus interest, are due and collectable as of 45 days from the date of entry of this Order. Daily interest runs from 3/13/2008 at the rate provided by 28:1961. (Reader, L) (Entered: 04/09/2008)

1431 STIPULATION and ORDER signed by Senior Judge Lawrence K. Karlton on 4/9/2008 ORDERING 1429 Defendants 1428 Motion to Stay, including their Notice of Motion and Motion, Memorandum of Points and Authorities, accompanying declarations, and any exhibits shall be filed with the Court on April

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 133 of 168

04/18/2008 04/24/2008
04/24/2008 04/30/2008 04/30/2008 05/01/2008
05/01/2008 05/05/2008
05/06/2008 05/06/2008 05/08/2008
05/08/2008 05/28/2008 05/29/2008

8, 2008;Plaintiffs' Opposition to the Motion to Stay shall be filed by April 24, 2008.Defendants' Reply, if any, shall be filed by April 30, 2008.(Reader, L) (Entered: 04/09/2008)

1432 USCA CASE NUMBER 08−15889 for 1424 Notice of Appeal − ATY filed by Arnold Schwarzenegger. (Plummer, M) (Entered: 04/18/2008)

1433

MEMORANDUM/RESPONSE in OPPOSITION re 1428 MOTION to STAY re 1422 Order MOTION to STAY re 1422 Order. Plaintiffs' Opposition to Defendants' Motion to Stay the Court's March 25, 2008 Order Regarding Paragraph 24 of the Valdivia Permanent Injunction (Stewart, Loren) (Entered: 04/24/2008)

1434 DECLARATION of Ernest Galvan in Support Of. Plaintiffs' Opposition to Defendants' Motion to Stay the Court's March 25, 2008 Order Regarding Paragraph 24 of the Valdivia Permanent Injunction (Stewart, Loren) (Entered: 04/24/2008)

1435 REPLY to 1433 RESPONSE to MOTION re 1428 MOTION to STAY re 1422 Order . (Whitney, Vickie) Modified on 5/1/2008 (Duong, D). (Entered: 04/30/2008)

1436 STIPULATION and PROPOSED ORDER Extending Time to Meet and Confer re 1323 Order re Remedial Sanctions by Jerry Valdivia. (Galvan, Ernest) Modified on 5/1/2008 (Duong, D). (Entered: 04/30/2008)

1437

STIPULATION and ORDER signed by Senior Judge Lawrence K. Karlton on 5/1/08: The parties, by and through their counsel, agree that they shall meet and confer on or before July 25, 2008, as to whether and to what extent, the RMSC, FRMSC, and PSC programs shall remain available as remedial sanctions. (Kaminski, H) (Entered: 05/01/2008)

SERVICE BY MAIL: 1437 Stipulation and Order, served on Mark F Adams, Alexander L Landon, Michael J McCabe. (Kaminski, H) (Entered: 05/01/2008)

1438

MINUTES (Text Only) for proceedings held before Senior Judge Lawrence K. Karlton: MOTION HEARING held on 5/5/2008 re 1428 MOTION to STAY filed by Arnold Schwarzenegger. After oral argument, the motion is DENIED. Court order to follow. Plaintiffs Counsel Loren Stewart, Michael Bien, Ernest Galvan present. Defendants Counsel Vicki Whitney present. Court Reporter: C. Bodene. (Rivas, A) (Entered: 05/05/2008)

1439 ORDER signed by Senior Judge Lawrence K. Karlton on 5/5/08 DENYING defendants' 1428 Motion to Stay. (Marciel, M) (Entered: 05/06/2008)

SERVICE BY MAIL: 1439 Order denying Motion to Stay served on Mark F Adams, Alexander L Landon, Michael J McCabe. (Marciel, M) (Entered: 05/06/2008)

1440

ORDER signed by Senior Judge Lawrence K. Karlton on 5/6/08. The Special Master has submitted for payment a bille for services provided during month of April 2008. Clerk directed to pay to Chase Riveland, Valdivia Special Master, the amount of $35,276.91 in accordance with attached Statement. A copy of this Order shall be served on Financial Department of Court. (cc: CFS) (Marciel, M) (Entered: 05/08/2008)

SERVICE BY MAIL: 1440 Order for Payment to Special Master served on Mark F Adams, Alexander L Landon, Michael J McCabe. (Marciel, M) (Entered: 05/08/2008)

1441 STIPULATION and PROPOSED ORDER Confirming Payment of Remaining Attorneys' Fees for 2007 by Jerry Valdivia. (Baldwin, Holly) (Entered: 05/28/2008)

1444 LETTER from Special Master C. Riveland extending the deadline imposed in pargraph number 5, namely the deadline for implementation of the policies and procedures from 6/15/08 to 8/15/08. (Duong, D) (Entered: 06/03/2008)

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 134 of 168

05/30/2008
05/30/2008 06/02/2008 06/03/2008 06/04/2008
06/25/2008
06/25/2008 06/25/2008 06/25/2008
06/25/2008
06/25/2008 06/25/2008
06/25/2008 06/25/2008 06/25/2008 06/26/2008 06/30/2008

1442 STIPULATION and ORDER signed by Senior Judge Lawrence K. Karlton on 5/29/08 ORDERING that $18,886.00 plus interest is due and collectabe as of forty−five days from the date of enty of this order. (Anderson, J) (Entered: 05/30/2008)

SERVICE BY MAIL: 1442 Stipulation and Order served on Mark F Adams, Alexander L Landon, Michael J McCabe. (Anderson, J) (Entered: 05/30/2008)

1443 NOTICE of CHANGE of ADDRESS by Donald Specter. (Specter, Donald) (Entered: 06/02/2008)

SERVICE BY MAIL: 1444 Letter served on Mark F Adams, Alexander L Landon, Michael J McCabe. (Duong, D) (Entered: 06/03/2008)

1445 ORDER signed by Senior Judge Lawrence K. Karlton on 6/3/08 ORDERING that the Clerk is directed to pay to Chase Riveland, Valdivia Special Master, the amount of $18,16.11, in accordance with the attached statement. A copy of this order shall be served on the CFS. (cc: CFS)(Duong, D) (Entered: 06/04/2008)

1446

MOTION Injunctive Relief Requiring Timely Access to Inpatient Psychiatric Hospitalization by Jerry Valdivia. Attorney Rifkin, Lori Ellen added. Motion Hearing set for 7/25/2008 at 10:00 AM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. (Rifkin, Lori) Modified on 6/26/2008 (Duong, D). (Entered: 06/25/2008)

1447 MEMORANDUM/RESPONSE in SUPPORT re 1446 MOTION Injunctive Relief Requiring Timely Access to Inpatient Psychiatric Hospitalization. (Rifkin, Lori) (Entered: 06/25/2008)

1448 PROPOSED ORDER Granting 1446 MOTION Injunctive Relief Requiring Timely Access to Inpatient Psychiatric Hospitalization. (Rifkin, Lori) Modified on 6/26/2008 (Duong, D). (Entered: 06/25/2008)

1449 DECLARATION of Ernest Galvan in Support Of re 1446 MOTION Injunctive Relief Requiring Timely Access to Inpatient Psychiatric Hospitalization. (Attachments: # 1 Exhibits 1−9 # 2 Exhibits 10−16)(Galvan, Ernest) Modified on 6/26/2008 (Duong, D). (Entered: 06/25/2008)

1450 MOTION for Leave to File Consolidated Motion and Request for Modification of Protective Orders by Jerry Valdivia. Motion Hearing set for 7/25/2008 at 10:00 AM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. (Bien, Michael) Modified on 6/26/2008 (Duong, D). (Entered: 06/25/2008)

1451 MEMORANDUM/RESPONSE in SUPPORT re 1450 plts' MOTION for Leave to File Consolidated Motion and Request for Modification of Protective Orders. (Bien, Michael) Modified on 6/26/2008 (Duong, D). (Entered: 06/25/2008)

1452 NOTICE Of Filing Under Seal the Rifkin and Kahn Declaration pursuant to Protective Order in support of 1446 plts' MOTION Injunctive Relief Requiring Timely Access to Inpatient Psychiatric Hospitalization. (Galvan, Ernest) Modified on 6/26/2008 (Duong, D). (Entered: 06/25/2008)

1453 DECLARATION of Michael W. Bien in Support Of re 1450 plts' MOTION for Leave to File Consolidated Motion and Request for Modification of Protective Orders. (Bien, Michael) Modified on 6/26/2008 (Duong, D). (Entered: 06/25/2008)

1454 PROPOSED ORDER Granting 1450 MOTION Leave to File Consolidated Motion and Request for Modification of Protective Orders by plts. (Bien, Michael) Modified on 6/26/2008 (Duong, D). (Entered: 06/25/2008)

1484 SEALED EVENT (Attachments: # 1 Sealed, # 2 Sealed) (Manzer, C) (Entered: 11/12/2008)

1455 CERTIFICATE of SERVICE by plts re Declaration of Lori Rifkin and Jane E. Kahn. (Rifkin, Lori) Modified on 6/26/2008 (Duong, D). (Entered: 06/26/2008)

1456 STIPULATION and PROPOSED ORDER Re Fees and Costs for First Quarter of 2008 by Jerry Valdivia. (Attachments: # 1 Proposed Order)(Galvan, Ernest) (Entered: 06/30/2008)

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 135 of 168

06/30/2008
06/30/2008 07/01/2008 07/01/2008 07/03/2008 07/03/2008 07/08/2008 07/08/2008 07/18/2008 07/18/2008 07/18/2008 07/25/2008
07/25/2008 08/04/2008
08/04/2008

1457

ORDER CONFIRMING UNDISPUTED ATTORNEY'S FEES AND COSTS FOR FIRST QUARTER OF 2008 signed by Senior Judge Lawrence K. Karlton on 6/30/2008 ORDERING 1456 that plaintiffs' fees and costs of $512,005.98, plus interest, are due and collectable as of 45 days from the date of entry of this Order. Daily interest runs from May 26, 2008 at the rate provided by 28:1961. (Reader, L) (Entered: 06/30/2008)

SERVICE BY MAIL: 1457 Order, served on Attorney's Mark F. Adams, Alexander L Landon, Michael J McCabe (Reader, L) (Entered: 06/30/2008)

1458 SEALED EVENT (Duong, D) (Entered: 07/01/2008)

1459 SEALED EVENT (Duong, D) (Entered: 07/01/2008)

1460 ORDER signed by Senior Judge Lawrence K. Karlton on 7/2/08 ORDERING that the Clerk is directed to pay to Chase Riveland, Valdivia Special Master, the amount of $28,405.19 in accordance with the attached statement. A copy of this order shall be served on the CFS. (cc: CFS) (Duong, D) (Entered: 07/03/2008)

SERVICE BY MAIL: 1460 Order served on Mark F. Adams, Alexander L Landon, Michael J McCabe. (Duong, D) (Entered: 07/03/2008)

1461 MEMORANDUM/RESPONSE in OPPOSITION re 1446 MOTION Injunctive Relief Requiring Timely Access to Inpatient Psychiatric Hospitalization. (Whitney, Vickie) (Entered: 07/08/2008)

1462 MEMORANDUM/RESPONSE in OPPOSITION re 1450 MOTION for Leave to File Consolidated Motion and Request for Modification of Protective Orders. (Attachments: # 1 Declaration of Vickie P. Whitney)(Whitney, Vickie) (Entered: 07/08/2008)

1463 REPLY to RESPONSE to MOTION re 1446 MOTION Injunctive Relief Requiring Timely Access to Inpatient Psychiatric Hospitalization. (Attachments: # 1 Declaration of Jane E. Kahn, # 2 Exhibits 1−4)(Rifkin, Lori) Modified on 7/21/2008 (Duong, D). (Entered: 07/18/2008)

1464 REPLY MEMORANDUM by plts in SUPPORT re 1450 MOTION for Leave to File Consolidated Motion and Request for Modification of Protective Orders. (Rifkin, Lori) Modified on 7/21/2008 (Duong, D). (Entered: 07/18/2008)

1465 DECLARATION of Lori Rifkin in SUPPORT OF re 1446 MOTION Injunctive Relief Requiring Timely Access to Inpatient Psychiatric Hospitalization, 1450 MOTION for Leave to File Consolidated Motion and Request for Modification of Protective Orders. (Rifkin, Lori) (Entered: 07/18/2008)

1466

MINUTES (Text Only) for proceedings held before Senior Judge Lawrence K. Karlton: MOTION HEARING held on 7/25/2008 re 1446 MOTION Injunctive Relief Requiring Timely Access to Inpatient Psychiatric Hospitalization filed by Jerry Valdivia, 1450 MOTION for Leave to File Consolidated Motion and Request for Modification of Protective Orders filed by Jerry Valdivia. After oral argument, the Court to issue an order. Plaintiffs Counsel Lori Rikin, Ernest Galvan, Michael Bien, Jane Kahn present. Defendants Counsel Vicki Whitney present. Court Reporter: C. Bodene. (Rivas, A) (Entered: 07/25/2008)

1467 STIPULATION and PROPOSED ORDER Extending Time For Meet and Confer Regarding Remedial Sanctions by Jerry Valdivia. Attorney Morris, Maria V. added. (Morris, Maria) (Entered: 07/25/2008)

1468

ORDER signed by Senior Judge Lawrence K. Karlton on 8/4/2008 ORDERING 1233 The Clerk is directed to pay to Chase Riveland, Valdivia Special Master, the amount of $23,128.50 in accordance with the attached statement; and a copy of this order shall be served on the financial department of this court. (Reader, L) (Entered: 08/04/2008)

1469

ORDER signed by Senior Judge Lawrence K. Karlton on 8/4/2008 GRANTING 1450 for Leave to File Consolidated Motion and Request for Modification of Protective Orders by Jerry Valdivia and Pltfs' request for an order modifying the protective orders to permit review of confidential materials by the court personnel, special masters and their staffs, counsel, experts, witnesses, and related staff in

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 136 of 168

08/04/2008 08/08/2008
08/08/2008 09/03/2008 09/03/2008 10/03/2008 10/03/2008 10/08/2008 10/08/2008 10/09/2008 10/09/2008 10/15/2008

both cases. (Reader, L) Modified on 8/5/2008 (Donati, J). (Entered: 08/04/2008)

SERVICE BY MAIL: 1468 Order, 1469 Order on Motions, served on Mark F. Adams, Alexander L Landon, Michael J McCabe (Reader, L) (Entered: 08/04/2008)

1470

ORDER signed by Senior Judge Lawrence K. Karlton on 08/07/08 regarding the 1446 Motion for Injunctive Relief ORDERING that: whenever a parole agent places a parolee in his custody and finds the parolee may pose a danger to himself or others by virtue of his mental condition, the parole agent SHALL directly take the parolee to the nearest community hospital for immediate psychiatric evaluation pursuant to California Welfare &Institutions Code 5150; Parolees who are in the custody of CDCR whose parole has not been revoked SHALL be deemed inmates for the purpose of their evaluation and referral for services under the Coleman Program Guide. These individuals shall not be denied treatment on the basis of their status as pre−revocation parolees. The criteria for admission to inpatient psychiatric treatment described in the Coleman Program Guide shall be the defendants exclusive criteria in determining inmates access to treatment; All inmates, including those pre−revocation parolees deemed inmates by virtue of this order, SHALL have full access to DMH inpatient treatment irrespective of their release date. When a Valdivia class member has been returned to custody on the allegation of the violation of his parole and where the parolee appears, in the judgment of his attorney or defendants staff, too mentally ill to participate in revocation proceedings, the revocation hearing may be suspended pending the parolees receipt of treatment to restore his competency, or the parolees wait for such treatment. (Benson, A) (Entered: 08/08/2008)

SERVICE BY MAIL: 1470 Order served on Mark F. Adams, Alexander L. Landon, Michael J McCabe. (Benson, A) (Entered: 08/08/2008)

1471 ORDER signed by Senior Judge Lawrence K. Karlton on 9/3/08 ORDERING that the clerk is directed to pay to Chase Riveland, Valdivia Special Master, the amounf of $31,017.13. A copy of this order shall be served on the financial department. (cc Financial) (Dillon, M) (Entered: 09/03/2008)

SERVICE BY MAIL: 1471 Order served on Mark F. Adams, Alexander L. Landon, Michael J. McCabe. (Dillon, M) (Entered: 09/03/2008)

1472

ORDER signed by Senior Judge Lawrence K. Karlton on 10/2/2008 ORDERING that the Clerk is directed to pay to Chase Riveland, Valdivia Special Master the amount of $63,171.68 in accordance with the attached statement; and a copy of this order shall be served on the financial department of this court.(Reader, L) (Entered: 10/03/2008)

SERVICE BY MAIL: 1472 Order, served on Mark F. Adams, Alexander L. Landon, Michael J. McCabe (Reader, L) (Entered: 10/03/2008)

1473 STIPULATION Confirming Undisputed Attorneys' Fees and Costs for the Second Quarter of 2008 by Jerry Valdivia. (Baldwin, Holly) Modified on 10/9/2008 (Kaminski, H). (Entered: 10/08/2008)

1474 PROPOSED ORDER Confirming Undisputed Attorneys' Fees and Costs re 1473 Stipulation by Jerry Valdivia. (Baldwin, Holly) Modified on 10/9/2008 (Kaminski, H). (Entered: 10/08/2008)

1475 ORDER confirming undisputed attorneys' fees and costs for the second quarter of 2008 signed by Senior Judge Lawrence K. Karlton on 10/09/08. (Manzer, C) (Entered: 10/09/2008)

SERVICE BY MAIL: 1475 Order served on Mark F. Adams, Alexander L. Landon, Michael J. McCabe, Lori Ellen Rifkin. (Manzer, C) (Entered: 10/09/2008)

1476

AMENDED ORDER signed by Senior Judge Lawrence K. Karlton on 10/15/08 amending 1472 Order; the Clerk is directed to pay Chase Riveland Valdivia, Special Master, the amount of $63,171.68 in accordance with the attached statement and serve a copy of this order on the financial department of this Court. (cc:Financial) (Manzer, C) (Entered: 10/15/2008)

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 137 of 168

10/17/2008
10/17/2008 10/17/2008 10/20/2008
10/20/2008 10/30/2008 10/30/2008 11/03/2008
11/03/2008
11/03/2008 11/04/2008 11/04/2008 11/06/2008 11/06/2008 11/14/2008 11/14/2008 11/14/2008

1477

ORDER signed by Senior Judge Lawrence K. Karlton on 10/17/08 ORDERING that the dfts deposit with the Clerk of the Court, within 30 days, a third interim payment of costs in the amount of $500,000.00 which shall be invested in the interest−bearing avvount previously opened for this action. (cc:Financial) (Manzer, C) (Entered: 10/17/2008)

SERVICE BY MAIL: 1477 Order, served on Mark F. Adams, Alexander L. Landon, Michael J. McCabe, Lori Ellen Rifkin (Manzer, C) (Entered: 10/17/2008)

SERVICE BY MAIL: 1476 Order, served on Mark F. Adams, Alexander L. Landon, Michael J. McCabe, Lori Ellen Rifkin (Manzer, C) (Entered: 10/17/2008)

1478 ORDER signed by Senior Judge Lawrence K. Karlton on 10/20/08 ORDERING that the Clerk pay the Special Master the amount in the account immediately, with the balance to be paid when defendants deposit additional funds. (cc:Financial) (Manzer, C) (Entered: 10/20/2008)

SERVICE BY MAIL: 1478 Order served on Mark F. Adams, Alexander L. Landon, Michael J. McCabe, Lori Ellen Rifkin (Manzer, C) (Entered: 10/20/2008)

1479 NOTICE OF FOURTH REPORT 1393 of the Special master on the status of conditions of the remedial order, signed by Chase Riveland, dated 4/28/2008. (Reader, L) (Entered: 10/30/2008)

SERVICE BY MAIL: 1479 Notice Fourth Report of the Special Master, served on Mark F. Adams, Alexander L. Landon, Michael J. McCabe, Lori Ellen Rifkin (Reader, L) (Entered: 10/30/2008)

1480

ORDER signed by Senior Judge Lawrence K. Karlton on 11/3/2008 ORDERING 1233 The Clerk is directed to pay to Chase Riveland, Valdivia Special Master, the amount of $30,424.55 in accordance with the attached statement; and a copy of this order shall be served on the financial department of this court. (Reader, L) (Entered: 11/03/2008)

1481

ORDER signed by Senior Judge Lawrence K. Karlton on 11/3/2008 ORDERING 1233 The Clerk is directed to pay to Chase Riveland, L.H., Special Master, the amount of $24,562.48 in accordance with the attached statement; and a copy of this order shall be served on the financial department of this court. (Reader, L) (Entered: 11/03/2008)

SERVICE BY MAIL: 1481 Order, 1480 Order, served on Mark F. Adams, Alexander L. Landon, Michael J. McCabe, Lori Ellen Rifkin (Reader, L) (Entered: 11/03/2008)

1482 CLERK'S NOTICE of DOCKET CORRECTION Please DISREGARD Order 1481 . Order and image entered in error in incorrect case. [TEXT ONLY ENTRY] (Reader, L) (Entered: 11/04/2008)

SERVICE BY MAIL: 1482 Clerk's Notice of Docket Correction served on Mark F. Adams, Alexander L. Landon, Michael J. McCabe, Lori Ellen Rifkin (Reader, L) (Entered: 11/04/2008)

1483 FIFTH REPORT of the Special Master on the Status of Condition of the Remedial Order 796 by Chase Riveland. (Manzer, C) (Entered: 11/06/2008)

SERVICE BY MAIL: 1483 Notice − Other served on Mark F. Adams, Alexander L. Landon, Michael J. McCabe, Lori Ellen Rifkin. (Manzer, C) (Entered: 11/06/2008)

1485 MOTION to Enforce Injunction by pltfs. Motion Hearing set for 12/22/2008 at 10:00 AM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. (Holtz, Geoffrey) Modified on 11/18/2008 (Manzer, C). (Entered: 11/14/2008)

1486 MEMORANDUM in SUPPORT of 1485 MOTION to Enforce Injunction by pltfs. (Holtz, Geoffrey) Modified on 11/18/2008 (Manzer, C). (Entered: 11/14/2008)

1487 DECLARATION of Geoffrey T. Holtz in SUPPORT OF 1485 MOTION to Enforce Injunction. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit)(Holtz, Geoffrey) (Entered: 11/14/2008)

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 138 of 168

11/14/2008 12/02/2008 12/02/2008 12/02/2008 12/02/2008 12/02/2008 12/02/2008 12/03/2008
12/05/2008
12/05/2008 12/05/2008

1488 PROPOSED ORDER re 1485 MOTION to Enforce Injunction. (Holtz, Geoffrey) Modified on 11/18/2008 (Manzer, C). (Entered: 11/14/2008)

1489 ORDER signed by Senior Judge Lawrence K. Karlton on 12/1/2008 ORDERING that the Clerk is directed to pay Chase Riveland, Valdivia Special Master, the amount of $20,413.17; and a copy of this order shall be served on the financial department of this court. (cc Financial)(Matson, R) (Entered: 12/02/2008)

SERVICE BY MAIL: 1489 Order, served on Mark F. Adams, Alexander L. Landon, Michael J. McCabe, Lori Ellen Rifkin. (Matson, R) (Entered: 12/02/2008)

1490 SUBSTITUTION of ATTORNEY − PROPOSED, submitted by Arnold Schwarzenegger. (Mello, Paul) (Entered: 12/02/2008)

1491

MOTION for EXTENSION re 1485 MOTION to Enforce Injunction Defendants Ex Parte Request For Extension Of Time To File Opposition To Motion To Enforce Injunction by Arnold Schwarzenegger. Attorney Mello, Paul B added. Motion Hearing set for 12/22/2008 at 10:00 AM in Courtroom 4(LJO) before Senior Judge Lawrence K. Karlton. (Mello, Paul) (Entered: 12/02/2008)

1492

DECLARATION of Paul B. Mello re 1491 MOTION for EXTENSION re 1485 MOTION to Enforce Injunction Defendants Ex Parte Request For Extension Of Time To File Opposition To Motion To Enforce Injunction MOTION for EXTENSION re 1485 MOTION to Enforce Injunction Defendants Ex Parte Request For Extension Of Time To File Opposition To Motion To Enforce Injunction. (Mello, Paul) (Entered: 12/02/2008)

1493

PROPOSED ORDER re 1491 MOTION for EXTENSION re 1485 MOTION to Enforce Injunction Defendants Ex Parte Request For Extension Of Time To File Opposition To Motion To Enforce Injunction MOTION for EXTENSION re 1485 MOTION to Enforce Injunction Defendants Ex Parte Request For Extension Of Time To File Opposition To Motion To Enforce Injunction by Arnold Schwarzenegger. (Mello, Paul) (Entered: 12/02/2008)

1494

OPPOSITION by Vincent Cervantes, Alfred Yancy, Hossie Welch, Jerry Valdivia, Steven G Williams, Russell P. Hall, Daren Jean Miller, Nghia Buckius, Mario Carillo, Phillip Castillo, George Cortes, Francis Culotta, David Dixon, Karl Horne, Scott Iroff, Walter − Jones, Mustafa Khalil, Raymond Latimore, Andre Lyons, Claude McDaniel, Nathan Morris, Edward Navarro, Ogwuobu Ojoir, Willie Patton, James − Robinson, Troy Scurry, Mark St John, Gregory Strong, Alfred Taylor, Christopher Thomas, Jimmy Watson, Curtis Williams, John Hamre, Jeffrey H Malone to 1491 MOTION for EXTENSION re 1485 MOTION to Enforce Injunction Defendants Ex Parte Request For Extension Of Time To File Opposition To Motion To Enforce Injunction MOTION for EXTENSION re 1485 MOTION to Enforce Injunction Defendants Ex Parte Request For Extension Of Time To File Opposition To Motion To Enforce Injunction. (Holtz, Geoffrey) (Entered: 12/03/2008)

1495

ORDER signed by Senior Judge Lawrence K. Karlton on 12/04/08 GRANTING 1491 MOTION for EXTENSION. Motion Hearing set for 3/9/2009 at 10:00 AM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. Defendants' opposition or statement of non−opposition SHALL be filed not later than February 6, 2009. Plaintiffs' reply if any, SHALL be filed not later than February 20, 2009. Until the resolution of the plaintiffs' motion, the defendants are prohibited from implementing Proposition 9 (Marsy's Law). (Streeter, J) (Entered: 12/05/2008)

SERVICE BY MAIL: 1495 Order served on Mark F. Adams, Alexander L. Landon, Michael J. McCabe and Lori Ellen Rifkin (Streeter, J) (Entered: 12/05/2008)

1496

ORDER signed by Senior Judge Lawrence K. Karlton on 12/5/08 ORDERING that the court hereby AMENDS 1495 Order so that the final sentence shall read: "Until the resolution of the plaintiffs motion, the defendants are prohibited from implementing those provisions of Proposition 9 (Marsys Law) at issue in plaintiffs motion, i.e., California Penal Code §§ 3044(a), 3044(a)(1)−(3), 3044(a)(5)−(6), and 3044(b)." (Donati, J) (Entered: 12/05/2008)

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 139 of 168

12/05/2008 12/08/2008
12/08/2008 12/22/2008 12/22/2008 01/05/2009
01/06/2009
01/06/2009 01/15/2009 02/05/2009 02/05/2009 02/06/2009 02/06/2009 02/06/2009 02/06/2009 02/20/2009

SERVICE BY MAIL: 1496 Order, served on Mark F. Adams, Alexander L. Landon, Michael J. McCabe, Lori Ellen Rifkin (Donati, J) (Entered: 12/05/2008)

1497

ORDER signed by Senior Judge Lawrence K. Karlton on 12/08/2008 GRANTING 1490 Substitution of Attorney for Defendants, Governor Arnold Schwarzenegger, and all individually name state officials/individuals employed by the California Department of Corrections and Rehabilitation. Paul B. Mello added. (Streeter, J) (Entered: 12/08/2008)

SERVICE BY MAIL: 1497 Order served on Mark F. Adams, Alexander L. Landon, Michael J. McCabe, Lori Ellen Rifkin (Streeter, J) (Entered: 12/08/2008)

1498 STIPULATION Confirming Undisputed Attorneys' Fees and Costs for the Third Quarter of 2008 by Jerry Valdivia. (Baldwin, Holly) (Entered: 12/22/2008)

1499 PROPOSED ORDER Confirming Undisputed Attorneys' Fees and Costs for the Third Quarter of 2008 re 1498 Stipulation by Jerry Valdivia. (Baldwin, Holly) (Entered: 12/22/2008)

1500

ORDER signed by Senior Judge Lawrence K. Karlton on 1/5/09 ORDERING that the Clerk is directed to pay to Chase Riveland, Valdivia Special Master, the amount of $37,275.46 in accordance with the attached statement. A copy of this order shall be served on the Financial Department of this court. (cc: CFS).(Duong, D) (Entered: 01/05/2009)

1501

ORDER signed by Senior Judge Lawrence K. Karlton on 01/05/2009 GRANTING 1498 Stipulation Confirming Undisputed Attorneys' Fees and Costs for the Third Quarter of 2008. It is FURTHER ORDERED that plaintiffs' fees and costs of $418,465.89, plus interest, are due and collectable as of 45 days from the date of entry of this Order. Daily interest runs from December 6, 2008 at the rate provided by 28 U.S.C Section 1961. (Streeter, J) (Entered: 01/06/2009)

SERVICE BY MAIL: 1501 Order served on Mark F. Adams, Alexander L. Landon, Michael J. McCabe and Lori Ellen Rifkin (Streeter, J) (Entered: 01/06/2009)

1502 REQUEST (motion) to enjoin petitioner to be added to injunction order by Timothy D. Johnson. (Manzer, C) (Entered: 01/16/2009)

1503 ORDER signed by Senior Judge Lawrence K. Karlton on 2/4/2009 ORDERING that the Clerk is directed to pay Chase Riveland the amount of $30,689.46; and a copy of this order shall be served on the financial department. ( cc Financial)(Matson, R) (Entered: 02/05/2009)

SERVICE BY MAIL: 1503 Order served on Alexander L. Landon, Michael J. McCabe. (Matson, R) (Entered: 02/05/2009)

1504 MOTION to Modify Injunction by Arnold Schwarzenegger. Motion Hearing set for 03/09/09 at 10:00 AM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. (Mello, Paul) Modified on 2/10/2009 (Benson, A.). (Entered: 02/06/2009)

1505 OPPOSITION by Arnold Schwarzenegger to 1485 Motion to Enforce Injunction and Memorandum in support of 1504 Motion to Modify the Injunction (Mello, Paul) Modified on 2/10/2009 (Benson, A.). (Entered: 02/06/2009)

1506 REQUEST for JUDICIAL NOTICE by Arnold Schwarzenegger in support of [1505} Opposition and support of 1504 Motion to Modify Injunction (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Mello, Paul) Modified on 2/10/2009 (Benson, A.). (Entered: 02/06/2009)

1507 PROPOSED ORDER [Proposed] Order Granting Defendants' Motion to Modify the Injunction; Denying Plaintiffs' Motion to Enforce the Injunction re 1485 MOTION to Enforce Injunction, 1504 MOTION Motion to Modify Injunction re 1485 MOTION to Enforce Injunction. (Mello, Paul) (Entered: 02/06/2009)

1508 REPLY by Vincent Cervantes, Alfred Yancy, Hossie Welch, Jerry Valdivia, Steven G Williams, Russell P. Hall, Daren Jean Miller, Nghia Buckius, Mario Carillo, Phillip Castillo, George Cortes, Francis Culotta, David Dixon, Karl Horne, Scott Iroff, Walter − Jones, Mustafa Khalil, Raymond Latimore, Andre Lyons,

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02/23/2009
02/23/2009 02/23/2009 02/23/2009
02/23/2009
02/23/2009 02/23/2009 02/23/2009 02/23/2009 02/23/2009 02/23/2009

Claude McDaniel, Nathan Morris, Edward Navarro, Steven O'Donohue, Ogwuobu Ojoir, Willie Patton, James − Robinson, Troy Scurry, Mark St John, Gregory Strong, Alfred Taylor, Christopher Thomas, Jimmy Watson, Curtis Williams, John Hamre, Jeffrey H Malone to RESPONSE to 1485 MOTION to Enforce Injunction. (Holtz, Geoffrey) (Entered: 02/20/2009)

1509

OPPOSITION by Vincent Cervantes, Alfred Yancy, Hossie Welch, Jerry Valdivia, Steven G Williams, Russell P. Hall, Daren Jean Miller, Nghia Buckius, Mario Carillo, Phillip Castillo, George Cortes, Francis Culotta, David Dixon, Karl Horne, Scott Iroff, Walter − Jones, Mustafa Khalil, Raymond Latimore, Andre Lyons, Claude McDaniel, Nathan Morris, Edward Navarro, Steven O'Donohue, Ogwuobu Ojoir, Willie Patton, James − Robinson, Troy Scurry, Mark St John, Gregory Strong, Alfred Taylor, Christopher Thomas, Jimmy Watson, Curtis Williams, John Hamre, Jeffrey H Malone to 1504 Motion to Modify Injunction. (Baldwin, Holly) Modified on 2/26/2009 (Kaminski, H). (Entered: 02/23/2009)

1510 PROPOSED ORDER re 1509 Opposition to Motion (Baldwin, Holly) Modified on 2/26/2009 (Kaminski, H). (Entered: 02/23/2009)

1511

DECLARATION of Michael W. Bien in Opposition To 1504 Motion to Modify Injunction. (Attachments: # 1 Exhibits A through C, # 2 Exhibit D through E, # 3 Exhibit F through G, # 4 Exhibit H, # 5 STRICKERN Exhibit I through K)(Bien, Michael) Modified on 2/26/2009 (Kaminski, H). (Additional attachment(s) added on 8/20/2009: # 6 Corrected Exhibits I−K) (Reader, L). SEE Order 1562 Modified on 8/20/2009 (Reader, L). (Entered: 02/23/2009)

1512

EXHIBIT L through O by Vincent Cervantes, Alfred Yancy, Hossie Welch, Jerry Valdivia, Steven G Williams, Russell P. Hall, Daren Jean Miller, Nghia Buckius, Mario Carillo, Phillip Castillo, George Cortes, Francis Culotta, David Dixon, Karl Horne, Scott Iroff, Walter − Jones, Mustafa Khalil, Raymond Latimore, Andre Lyons, Claude McDaniel, Nathan Morris, Edward Navarro, Steven O'Donohue, Ogwuobu Ojoir, Willie Patton, James − Robinson, Troy Scurry, Mark St John, Gregory Strong, Alfred Taylor, Christopher Thomas, Jimmy Watson, Curtis Williams, John Hamre, Jeffrey H Malone re 1511 . (Bien, Michael) (Entered: 02/23/2009)

1513

EXHIBIT P through R by Vincent Cervantes, Alfred Yancy, Hossie Welch, Jerry Valdivia, Steven G Williams, Russell P. Hall, Daren Jean Miller, Nghia Buckius, Mario Carillo, Phillip Castillo, George Cortes, Francis Culotta, David Dixon, Karl Horne, Scott Iroff, Walter − Jones, Mustafa Khalil, Raymond Latimore, Andre Lyons, Claude McDaniel, Nathan Morris, Edward Navarro, Steven O'Donohue, Ogwuobu Ojoir, Willie Patton, James − Robinson, Troy Scurry, Mark St John, Gregory Strong, Alfred Taylor, Christopher Thomas, Jimmy Watson, Curtis Williams, John Hamre, Jeffrey H Malone re 1511 . (Bien, Michael) (Entered: 02/23/2009)

1514 NOTICE of Filing Documents Under Seal by all plaintiffs re 1509 Opposition to Motion,,. (Baldwin, Holly) (Entered: 02/23/2009)

1515 DECLARATION of Ernest Galvan and Exhibits A through E in Opposition to 1504 Motion to Modify Injunction. (Galvan, Ernest) Modified on 2/26/2009 (Kaminski, H). (Entered: 02/23/2009)

1516 DECLARATION of Karen Kennard and Exhibits A − B in Opposition To 1504 Motion to Modify Injunction. Attorney Huey, Shirley added. (Huey, Shirley) (Entered: 02/23/2009)

1517 DECLARATION of Jennifer Jonak and Exhibit A in Opposition to 1504 Motion to Modify Injunction. Attorney Huey, Shirley added. (Huey, Shirley) Modified on 2/26/2009 (Kaminski, H). (Entered: 02/23/2009)

1518 DECLARATION of Mary Catherine Wirth and Exhibit A in Opposition to 1504 Motion to Modify Injunction. (Huey, Shirley) Modified on 2/26/2009 (Kaminski, H). (Entered: 02/23/2009)

1519 CERTIFICATE of SERVICE by Jerry Valdivia re 1509 Opposition to Motion (Huey, Shirley) Modified on 2/26/2009 (Kaminski, H). (Entered: 02/23/2009)

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02/23/2009 02/23/2009 02/23/2009 02/23/2009 03/02/2009 03/03/2009
03/03/2009 03/03/2009
03/03/2009 03/12/2009
03/25/2009 03/25/2009 03/26/2009
03/31/2009
03/31/2009 04/02/2009
04/02/2009

1520 SEALED EVENT (CD attached). (Kaminski, H) (Entered: 02/24/2009)

1521 SEALED EVENT (CD attached). (Kaminski, H) (Entered: 02/24/2009)

1522 SEALED EVENT. (Kaminski, H) (Entered: 02/24/2009)

1523 SEALED EVENT (Attachments: # 1 part II, # 2 part III).(Kaminski, H) (Entered: 02/24/2009)

1524 REPLY Memorandum of points and authorities in support of defendants' motion 1504 to modify injunction. Attorney Jacob, Renju Palanilkumuryil added. (Jacob, Renju) Modified on 3/4/2009 (Becknal, R). (Entered: 03/02/2009)

1525

MINUTE ORDER (TEXT ONLY) by CRD. The hearing on Plaintiffs' Motion to Enforce Injunction 1485 and Defendants' Motion to Modify the Injunction 1504 , currently set for 03/09/2009, is hereby CONTINUED TO Thursday, March 12, 2009 at 10:00 AM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. Ordered by Senior Judge Lawrence K. Karlton on March 3, 2009. (Rivas, A) (Entered: 03/03/2009)

SERVICE BY MAIL: 1525 Minute Order served on Alexander L. Landon, Michael J. McCabe. (Rivas, A) (Entered: 03/03/2009)

1526

ORDER signed by Senior Judge Lawrence K. Karlton on 3/2/09. The Clerk is directed to pay to Chase Riveland Valdivia Special Master 5714 Deer Harbor Road, Box 367 Deer Harbor, WA 98243 the amount of $22,598.68. A copy of this order shall be served on the Financial department of this Court.(Mena−Sanchez, L) (Entered: 03/03/2009)

SERVICE BY MAIL: 1526 Order, served on Alexander L. Landon, Michael J. McCabe. (Mena−Sanchez, L) (Entered: 03/03/2009)

1527

MINUTES (Text Only) for proceedings held before Senior Judge Lawrence K. Karlton: MOTION HEARING held on 3/12/2009 re 1485 MOTION to Enforce Injunction filed by Plaintiffs, and 1504 Motion to Modify Injunction filed by Defendants. After oral arguments, the Motions stand SUBMITTED. Court order to follow. Plaintiffs Counsel Michael Bien, Ernest Galvan, Geoffrey Holtz present. Defendants Counsel S. Anne Johnson present. Court Reporter: C. Bodene. (Rivas, A) (Entered: 03/12/2009)

1528 STIPULATION Confirming Undisputed Attorneys' Fees and Costs for the Fourth Quarter of 2008 by Jerry Valdivia. (Baldwin, Holly) (Entered: 03/25/2009)

1529 PROPOSED ORDER Confirming Undisputed Attorneys' Fees and Costs for the Fourth Quarter of 2008 re 1528 Stipulation by Jerry Valdivia. (Baldwin, Holly) (Entered: 03/25/2009)

1530 ORDER signed by Senior Judge Lawrence K. Karlton on 3/26/2009 ORDERING Plaintiffs' motion to enforce the Permanent Injunction is GRANTED as provided herein and Defendants' motion to modify the Permanent Injunction is DENIED. (Matson, R) (Entered: 03/26/2009)

1531

ORDER signed by Senior Judge Lawrence K. Karlton on 3/30/09 ORDERING that plaintiffs' undisputed fees and costs of $382,331.35, plus interest, are due and collectable as of 45 days from the date of entry of this Order. Daily interest runs from 3/12/09 at the rate provided by 28 U.S.C. § 1961. (Becknal, R) (Entered: 03/31/2009)

SERVICE BY MAIL: 1531 Order served on Alexander L. Landon, Michael J. McCabe. (Becknal, R) (Entered: 03/31/2009)

1532 ORDER signed by Senior Judge Lawrence K. Karlton on 4/2/09: The Clerk is directed to pay to Special Master the amount of $61,757.78. A copy of this order shall be served on the financial department of this court. (Kaminski, H) (Entered: 04/02/2009)

SERVICE BY MAIL: 1532 Order, served on Alexander L. Landon, Michael J. McCabe. (Kaminski, H) (Entered: 04/02/2009)

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04/03/2009 04/20/2009
04/20/2009 04/24/2009 04/24/2009 04/27/2009
05/06/2009
05/06/2009 05/07/2009 05/07/2009 05/14/2009 05/15/2009
05/15/2009 05/21/2009

1533 TRANSCRIPT of Proceedings held on 3−12−09 − (PLEASE DISREGARD THIS ENTRY − SEE 1534 ). (Bodene, C) Modified on 5/1/2009 (Rivas, A). (Entered: 04/03/2009)

1534

TRANSCRIPT of Proceedings held on 3−12−09, before Senior Judge Lawrence K. Karlton, filed by Court Reporter Cathie Bodene, Phone number 916−446−6360 E−mail cbodene@caed.uscourts.gov. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction must be filed within 5 court days. Redaction Request due 5/11/2009. Redacted Transcript Deadline set for 5/21/2009. Release of Transcript Restriction set for 7/20/2009. (Bodene, C) (Entered: 04/20/2009)

1537 CLERK'S NOTICE of DOCKET CORRECTION re 1533 Transcript: Please disregard this filing, see correct filing on 04/20/2009, 1534 . (Rivas, A) (Entered: 05/01/2009)

1535 NOTICE of APPEAL by Arnold Schwarzenegger. (Attachments: # 1 Exhibit A , # 2 Exhibit B , # 3 Exhibit C )(Jacob, Renju) Modified on 4/27/2009 (Duong, D). (Entered: 04/24/2009)

RECEIPT number #CAE200016302 $455.00 fbo State of California by Hanson Bridgett LLP on 4/24/2009. (Streeter, J) (Entered: 04/24/2009)

1536

APPEAL PROCESSED to Ninth Circuit re 1535 Notice of Appeal − ATY filed by Arnold Schwarzenegger. Filed dates for Notice of Appeal *4/24/2009*, Complaint *9/20/1991* and Appealed Order / Judgment *3/26/2009*. Court Reporter: *C. Bodene*. *Fee Status: Paid on 4/24/2009 in the amount of $455.00* ** Hearing Dates of *3/12/09* (Attachments: # 1 Appeal Notice, # 2 Certificate) (Duong, D) (Entered: 04/27/2009)

1538

ORDER signed by Senior Judge Lawrence K. Karlton on 5/5/2009. Pursuant to Court's 1223 Order of Reference, the Special Master submitted a bill for serviced provided during month of April 2009. Good cause appearing, Clerk directed to pay Chase Riveland, Valdivia Special Master, the amount of $37,700.28 in accordance with Statement. Copy of Order shall be served on Financial Department. (Marciel, M) (Entered: 05/06/2009)

SERVICE BY MAIL: 1538 Order for disbursement to Special Master served on Alexander L. Landon, Michael J. McCabe. (Marciel, M) (Entered: 05/06/2009)

1539 SIXTH REPORT OF THE SPECIAL MASTER ON THE STATUS OF CONDITIONS OF THE REMEDIAL ORDER. (Mena−Sanchez, L) (Entered: 05/07/2009)

1540 DOCUMENT(S) SERVED ELECTRONICALLY: 1539 Order served on Alexander L. Landon and Michael J. McCabe. (Mena−Sanchez, L) (Entered: 05/07/2009)

1541 STIPULATION and PROPOSED ORDER for Partial Resolution of Disputed Attorneys' Fees for the Third and Fourth Quarters of 2008 by Jerry Valdivia. (Baldwin, Holly) (Entered: 05/14/2009)

1542

STIPULATION and ORDER 1541 for partial resolution of disputed attorneys' fees for Third and Fourth Quarters of 2008 signed by Senior Judge Lawrence K. Karlton on 5/15/2009. It is confirmed that $3500 is due and collectable as of 45 days from date of entry of this Order. Interest on these fees will run from date of entry of this Order accruing at rate provided by 28 USC Section 1961. (Marciel, M) (Entered: 05/15/2009)

SERVICE BY MAIL: 1542 Stipulation and Order served on Alexander L. Landon, Michael J. McCabe. (Marciel, M) (Entered: 05/15/2009)

1543 MOTION to COMPEL Disputed Attorney's Fees from Quarters Three and Four of 2008 by Jerry Valdivia. Motion Hearing set for 6/18/2009 at 10:00 AM in Courtroom 24 (GGH) before Magistrate Judge Gregory G. Hollows. (Baldwin, Holly) (Entered: 05/21/2009)

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 143 of 168

05/21/2009 05/21/2009 05/22/2009 05/22/2009 05/22/2009 05/26/2009 05/27/2009
05/27/2009 06/05/2009
06/05/2009 06/12/2009 06/16/2009 06/16/2009 07/02/2009 07/23/2009 07/23/2009

1544 DECLARATION of Holly Baldwin in Support Of 1543 MOTION to COMPEL Disputed Attorney's Fees from Quarters Three and Four of 2008. (Baldwin, Holly) (Entered: 05/21/2009)

1545 PROPOSED ORDER Proposed Order re 1543 MOTION to COMPEL Disputed Attorney's Fees from Quarters Three and Four of 2008. (Baldwin, Holly) (Entered: 05/21/2009)

1546 STIPULATION and PROPOSED ORDER for Extending Time in Which Plaintiffs May Move to Compel Certain Disputed Attorney's Fees Incurred in 2008 by plts. (Baldwin, Holly) (Entered: 05/22/2009)

1547 CERTIFICATE of SERVICE by plts re 1543 MOTION to COMPEL Disputed Attorney's Fees from Quarters Three and Four of 2008, 1544 Declaration, 1545 Proposed Order. (Huey, Shirley) Modified on 5/26/2009 (Duong, D). (Entered: 05/22/2009)

1548 NOTICE of CHANGE of ADDRESS to P.O. Box 804, Sanger, CA 93657 by Daren Jean Miller. (Kastilahn, A) (Entered: 05/26/2009)

1549 AMENDED NOTICE by all plaintiffs re 1543 MOTION to COMPEL 1545 Proposed Order. (Huey, Shirley) Modified on 5/28/2009 (Kaminski, H). (Entered: 05/26/2009)

1550

STIPULATION and ORDER signed by Senior Judge Lawrence K. Karlton on 5/26/09: All disputes regarding fees incurred by Plaintiffs in 2008 for the confrontation−rights appeal shall be held in abeyance and all deadlines on motions to compel these fees shall be tolled and not run until sixty (60) days after the Ninth Circuit issues the mandate in the confrontation rights appeal. (Kaminski, H) (Entered: 05/27/2009)

SERVICE BY MAIL: 1550 Stipulation and Order, served on Alexander L. Landon, Michael J. McCabe. (Kaminski, H) (Entered: 05/27/2009)

1551

ORDER signed by Senior Judge Lawrence K. Karlton on 6/4/2009 ORDERING 1233 The Clerk is directed to pay to Chase Riveland, Valdivia Special Master, the amount of $20,969.71 in accordance with the attached statement; and a copy of this order shall be served on the Financial Department of this Court. (Reader, L) (Entered: 06/05/2009)

SERVICE BY MAIL: 1551 Order, served on Alexander L. Landon, Michael J. McCabe. (Reader, L) (Entered: 06/05/2009)

1552 STIPULATION and PROPOSED ORDER re: 1543 Plaintiffs' Motion to Compel Disputed Attorneys' Fees from Quarters Three and Four of 2008 by Arnold Schwarzenegger. Attorney Johnson, Sally Anne added. (Johnson, Sally) Modified on 6/15/2009 (Gaydosh, J). (Entered: 06/12/2009)

1553 STIPULATION and ORDER signed by Senior Judge Lawrence K. Karlton on 6/15/09: 1552 STIPULATION re 1543 MOTION to COMPEL Disputed Attorney's Fees from Quarters Three and Four of 2008 is APPROVED. (Kaminski, H) (Entered: 06/16/2009)

SERVICE BY MAIL: 1553 Stipulation and Order, served on Alexander L. Landon, Michael J. McCabe. (Kaminski, H) (Entered: 06/16/2009)

1554 ORDER signed by Senior Judge Lawrence K. Karlton on 07/02/09 ORDERING that the Clerk is directed to pay Chase Riveland, Special Master the amount of $25,695.72. A copy of this order shall be served on the financial department of this court. (cc: CFS) (Streeter, J) (Entered: 07/02/2009)

1555 STIPULATION and PROPOSED ORDER for Undisputed Attorneys' Fees and Costs by Jerry Valdivia. (Attachments: # 1 Proposed Order (Morris, Maria) Modified on 7/24/2009 (Kaminski, H). (Entered: 07/23/2009)

1556 STIPULATION and PROPOSED ORDER for Certain Undisputed Attorneys' Fees and Costs for Q3 and Q4 2008 by Jerry Valdivia. (Attachments: # 1 Proposed Order (Morris, Maria) Modified on 7/24/2009 (Kaminski, H). (Entered: 07/23/2009)

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 144 of 168

07/30/2009
07/30/2009 08/05/2009 08/05/2009 08/05/2009 08/12/2009 08/12/2009 08/13/2009
08/13/2009 08/20/2009
08/20/2009 08/28/2009 09/08/2009
09/08/2009

1557

STIPULATION and ORDER 1556 confirming certain undisputed attorneys' fees and costs for 3rd and 4th Quarters of 2008 signed by Senior Judge Lawrence K. Karlton on 7/29/2009. Plaintiffs undisputed fees and costs of $78,424.83 plus interest are due and collectable as of 45 days from entry of this Order. Daily interest runs on $2,831.78 from 12/6/2008 at rate provided by 28 USC § 1961. Daily interest runs on $75,593.05 from 3/10/2009 at rate provided by 28 USC § 1961. (Marciel, M) (Entered: 07/30/2009)

SERVICE BY MAIL: 1557 Stipulation and Order confirming certain undisputed attorneys' fees and costs served on attorneys Alexander L. Landon, Michael J. McCabe. (Marciel, M) (Entered: 07/30/2009)

1558 ORDER signed by Senior Judge Lawrence K. Karlton on 08/04/09 ORDERING that the Clerk is directed to pay Chase Riveland, Special Master the amount of $38,377.14. A copy of this order shall be served on the financial department of this court. (cc: CFS)(Streeter, J) (Entered: 08/05/2009)

SERVICE BY MAIL: 1558 Order served on Alexander L. Landon, Michael J. McCabe. (Streeter, J) (Entered: 08/05/2009)

SERVICE BY MAIL: 1554 Order served on Alexander L. Landon, Michael J. McCabe. (Streeter, J) (Entered: 08/05/2009)

1559 NOTICE of Errata and Request to Remove and Replace Inadvertently Filed Document by all plaintiffs re 1511 Declaration,. (Huey, Shirley) (Entered: 08/12/2009)

1560 PROPOSED ORDER re Notice of Errata by all plaintiffs 1559 . (Huey, Shirley) Modified on 8/13/2009 (Narcisse, M). (Entered: 08/12/2009)

1561

ORDER CONFIRMING UNDISPUTED ATTORNEY'S FEES AND COSTS FOR THE FIRST QUARTER OF 2009 signed by Senior Judge Lawrence K. Karlton on 8/12/09. Plaintiffs' undisputed fees and costs of $800,000.00, plus interest, are due and collectable as of forty−five days from the date of entry of this Order. Daily interest runs from May 23, 2009 at the rate provided by 28 U.S.C. § 1961.(Mena−Sanchez, L) (Entered: 08/13/2009)

SERVICE BY MAIL: 1561 Order, served on Alexander L. Landon, Michael J. McCabe. (Mena−Sanchez, L) (Entered: 08/13/2009)

1562

ORDER signed by Senior Judge Lawrence K. Karlton on 8/19/2009 ORDERING 1560 that Docket No. 1511 −6 in the docket of the above−captioned case, consisting of Exhibits I−K to the Decl. of Michael Bien in Opposition to Dfts' Motion to Modify Injunction, shall be STRICKEN from the docket. It shall not be made public, and it shall not be read or considered by Court personnel or counsel. It is further ORDERED 1559 that Exhibits I−K attached to Pltfs' Notice of Errata filed 8/12/2009, and corrected to comply with the Protective Orders entered in this matter, shall replace Exhibits I−K, originally entered at Docket No. 1511 −6. (Reader, L) (Entered: 08/20/2009)

SERVICE BY MAIL: 1562 Order, served on Alexander L. Landon, Michael J. McCabe, Stephen J. Perrello Jr. (Reader, L) (Entered: 08/20/2009)

MAIL RETURNED as Undeliverable, RTS−not deliverable as addressed; unable to forward: 1562 Order sent to Stephen J. Perrello Jr..; Notice of Change of Address due by 11/4/2009. (Carlos, K) (Entered: 09/01/2009)

1563

ORDER signed by Senior Judge Lawrence K. Karlton on 09/04/09 pursuant to the court's August 18, 2005 Order of Reference, the Special Master has submitted for payment a bill for services provided during the month of August, 2009, IT IS ORDERED that the Clerk is directed to pay to: Chase Riveland the sum of $27,557.40. A copy of this order shall be served on the financial department of this court. (cc: Sac Finance)(Streeter, J) (Entered: 09/08/2009)

SERVICE BY MAIL: 1563 Order served on Alexander L. Landon, Michael J. McCabe. (Streeter, J) (Entered: 09/08/2009)

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 145 of 168

10/05/2009
10/05/2009 10/05/2009
10/05/2009 11/03/2009 11/03/2009
11/03/2009 11/04/2009
11/05/2009
11/05/2009 11/12/2009
11/12/2009 11/30/2009 12/02/2009
12/02/2009 12/02/2009 12/17/2009

1564

ORDER signed by Senior Judge Lawrence K. Karlton on 10/2/2009 ORDERING 1233 The Clerk is directed to pay to Chase Riveland, Valdivia Special Master, the amount of $54,855.75 in accordance with the attached statement; and a copy of this order shall be served on the financial department of this court. (Reader, L) (Entered: 10/05/2009)

SERVICE BY MAIL: 1564 Order, served on Alexander L. Landon, Michael J. McCabe. (Reader, L) (Entered: 10/05/2009)

1565

ORDER signed by Senior Judge Lawrence K. Karlton on 10/2/2009 ORDERING 1213 Within 30 days of the date of this order defendants shall deposit with the Clerk of the Court a fourth interim payment of costs in the amount of $500,000.00 which amount shall be invested in the interest−bearing account previously opened for this action; and The Clerk of the Court is directed to serve a copy of this order on the Financial Department of this Court. (Reader, L) (Entered: 10/05/2009)

SERVICE BY MAIL: 1565 Order, served on Alexander L. Landon, Michael J. McCabe. (Reader, L) (Entered: 10/05/2009)

RECEIPT number #CAE200021156 $500,000.00 fbo State of CA by State of CA on 11/2/2009. (Gaydosh, J) (Entered: 11/03/2009)

1566 ORDER signed by Senior Judge Lawrence K. Karlton on 11/2/09: The Clerk is directed to pay to Chase Riveland L.H. Special Master the amount of $27,470.12. A copy of this order shall be served on the financial department of this court. (Kaminski, H) (Entered: 11/03/2009)

SERVICE BY MAIL: 1566 Order, served on Alexander L. Landon, Michael J. McCabe. (Kaminski, H) (Entered: 11/03/2009)

1567 STIPULATION and PROPOSED ORDER for Undisputed Attorneys' Fees and Costs for the Second Quarter of 2009 by Jerry Valdivia. (Attachments: # 1 Proposed Order (Morris, Maria) Modified on 11/5/2009 (Kaminski, H). (Entered: 11/04/2009)

1568 STIPULATION and ORDER signed by Senior Judge Lawrence K. Karlton on 11/4/2009 ORDERING that plfs undisputed fees and costs of $542,204.85, plus interest, are due and collectable as of 45 days from the date of entry of this Order. (Suttles, J) (Entered: 11/05/2009)

SERVICE BY MAIL: 1568 Stipulation and Order served on Alexander L. Landon and Michael J. McCabe. (Suttles, J) (Entered: 11/05/2009)

1569 ORDER signed by Senior Judge Lawrence K. Karlton on 11/10/2009 GRANTING parties 20 days to object to the Special Master's recommendations; opposition or non−opposition to objections due within 15 days; and replies due within 10 days thereafter. (Suttles, J) (Entered: 11/12/2009)

SERVICE BY MAIL: 1569 Order, served on Alexander L. Landon and Michael J. McCabe. (Suttles, J) (Entered: 11/12/2009)

1570 SEVENTH REPORT OF THE SPECIAL MASTER ON THE STATUS OF CONDITIONS OF THE REMEDIAL ORDER signed by Chase Riveland, Special Master, on 10/13/09. (Engbretson, K.) (Entered: 11/30/2009)

1571 ORDER signed by Senior Judge Lawrence K. Karlton on 12/1/2009 ORDERING that pursuant to 1230 Stipulation and Order, the Clerk is directed to pay Special Master Chase Riveland in accordance with this Order. (cc: Financial−Sacramento) (Suttles, J) (Entered: 12/02/2009)

SERVICE BY MAIL: 1571 Order served on Alexander L. Landon, Michael J. McCabe. (Suttles, J) (Entered: 12/02/2009)

1572 RESPONSE by Jerry Valdivia to 1569 Order,. (Baldwin, Holly) (Entered: 12/02/2009)

1573 OPPOSITION by Defendant Arnold Schwarzenegger to 1572 Response. (Johnson, Sally) (Entered: 12/17/2009)

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 146 of 168

12/17/2009 12/17/2009 01/07/2010 01/07/2010 01/08/2010
01/08/2010 02/02/2010 02/02/2010 02/08/2010 03/11/2010
03/11/2010 03/25/2010 04/06/2010 04/12/2010 04/13/2010
04/13/2010

1574 DECLARATION of Russa Boyd in support of 1573 Opposition. (Johnson, Sally) Modified on 12/18/2009 (Kaminski, H). (Entered: 12/17/2009)

1575 CERTIFICATE of SERVICE by Arnold Schwarzenegger re 1574 Declaration, 1573 Opposition. (Johnson, Sally) (Entered: 12/17/2009)

1576 ORDER signed by Senior Judge Lawrence K. Karlton on 1/5/2010 ORDERING that the Clerk is directed to pay Chase Riveland, Valdivia Special Master, the amount of $26,484.99. A copy of this order shall be served on the financial department of this court. (cc: CFS) (Engbretson, K.) (Entered: 01/07/2010)

SERVICE BY MAIL: 1576 Order served on Alexander L. Landon, Michael J. McCabe. (Engbretson, K.) (Entered: 01/07/2010)

1577

ORDER signed by Senior Judge Lawrence K. Karlton on 1/8/10 ORDERING that while Defendants have met the Remedial Sanctions Order's goal of establishing 1,800 ICDTP beds, information about the number and availability of ICDTP placements remains relevant to overall monitoring compliance with the Permanent Injunction's remedial sanctions requirement. (Becknal, R) (Entered: 01/08/2010)

SERVICE BY MAIL: 1577 Order, served on Alexander L. Landon, Michael J. McCabe. (Becknal, R) (Entered: 01/08/2010)

1578 ORDER signed by Senior Judge Lawrence K. Karlton on 2/1/10 directing payment of special master fees in the amount of $47,574.14. (cc: financial) (Owen, K) (Entered: 02/02/2010)

1579 STIPULATION and PROPOSED ORDER for Undisputed Attorneys' Fees and Costs for the Third Quarter of 2009 by Jerry Valdivia. (Attachments: # 1 Proposed Order)(Morris, Maria) (Entered: 02/02/2010)

1580 ORDER CONFIRMING UNDISPUTED ATTORNEYS FEES AND COSTS FOR THE THIRD QUARTER OF 2009 signed by Senior Judge Lawrence K. Karlton on 2/8/10. (Kaminski, H) (Entered: 02/08/2010)

1581

ORDER signed by Senior Judge Lawrence K. Karlton on 3/10/10. The Clerkis directed to pay Chase Riveland Valdivia Special Master, 5714 Deer Harbor Road, Box 367 Deer Harbor, WA 98243 the amount of $65,939.48 in accordance withe the attached atatement; a copy of this order shall be served on the financial department of this court.(Mena−Sanchez, L) (Entered: 03/11/2010)

SERVICE BY MAIL: 1581 Order, served on Alexander L. Landon, Michael J. McCabe. (Mena−Sanchez, L) (Entered: 03/11/2010)

1582 OPINION of USCA (Matson, R) (Entered: 03/25/2010)

1583 ORDER signed by Senior Judge Lawrence K. Karlton on 4/5/10 DIRECTING payment to Special Master Chase Riveland. (CC: Financial) (Owen, K) (Entered: 04/06/2010)

1585 EIGHTH REPORT of Special Master on Status of Conditions of Remedial Order. (Marciel, M) (Entered: 04/13/2010)

1584

[REINESTATED Pursuant to 1591 Order] ORDER signed by Senior Judge Lawrence K. Karlton on 4/12/2010. Pursuant to the Eighth Report of the Special Master, Court orders defendants are in substantial compliance with following requirements of Stipulated Order for Permanent Injunctive Relief, and that subjects will no longer be primary focus of plaintiffs' or Special Master's monitoring unless they are inextricably linked with review of hearing process or arise in course of investigating an individual parolees situation. Defendants shall report on status of these requirements on 1/8/2011 and every 6 months thereafter. These reports may be incorporated in defendants' compliance report. (Marciel, M) Modified on 4/14/2010 (Mena−Sanchez, L). Modified on 6/7/2010 (Owen, K). (Entered: 04/13/2010)

SERVICE BY MAIL: 1584 Order Pursuant to Eighth Report served on attorneys Alexander L. Landon, Michael J. McCabe. (Marciel, M) (Entered: 04/13/2010)

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 147 of 168

04/14/2010
04/14/2010 05/03/2010
05/03/2010 05/24/2010 05/26/2010
05/26/2010 06/04/2010 06/07/2010 06/07/2010 06/28/2010 06/28/2010 07/02/2010 07/02/2010 08/04/2010
08/04/2010

1586

ORDER signed by Senior Judge Lawrence K. Karlton on 4/13/10. The Court WITHDRAWS the 4/13/10 ORDER 1584 . The parties may file objections to the report, including report's recommendation to this Court, no later than (10) days from the date of this order. If objections are filed, the opposing party may file a response no later than five (5) days thereafter.(Mena−Sanchez, L) (Entered: 04/14/2010)

SERVICE BY MAIL: 1586 Order, served on Alexander L. Landon, Michael J. McCabe. (Mena−Sanchez, L) (Entered: 04/14/2010)

1587

ORDER signed by Senior Judge Lawrence K. Karlton on 5/3/2010 ORDERING 1233 The Clerk is directed to pay to Chase Riveland, Valdivia, Special Master, the amount of $10,243.90 in accordance with the attached statement; and a copy of this order shall be served on the financial department of this court. (Reader, L) (Entered: 05/03/2010)

SERVICE BY MAIL: 1587 Order, served on Alexander L. Landon, Michael J. McCabe. (Reader, L) (Entered: 05/03/2010)

1588 STIPULATION and PROPOSED ORDER for Undisputed Attorneys' Fees and Costs for the Fourth Quarter of 2009 by Jerry Valdivia. (Attachments: # 1 Proposed Order re Fourth Quarter 2009 Attorneys' Fees and Costs)(Morris, Maria) (Entered: 05/24/2010)

1589

ORDER signed by Senior Judge Lawrence K. Karlton on 5/26/10, ORDERING that pltfs' undisputed fees and costs of $310,764.76, plus interest, are DUE and collectable as of 45 days from the date of entry of this Order. Daily interest runs from 4/1/10 at the rate provided by 28 U.S.C. § 1961. (Kastilahn, A) (Entered: 05/26/2010)

SERVICE BY MAIL: 1589 Order served on Alexander L. Landon, and Michael J. McCabe. (Kastilahn, A) (Entered: 05/26/2010)

1590 ORDER signed by Senior Judge Lawrence K. Karlton on 6/3/10 ORDERING that the Clerk is directed to pay Special Master Chase Riveland in the amount of $21,984.15. (cc: Financial) (Owen, K) (Entered: 06/04/2010)

1591 ORDER signed by Senior Judge Lawrence K. Karlton on 6/4/10 ORDERING that the Court's 1584 Order adopting the special master's Eighth Report is REINSTATED. (Owen, K) (Entered: 06/07/2010)

SERVICE BY MAIL: 1591 Order served on Alexander L. Landon, Michael J. McCabe. (Owen, K) (Entered: 06/07/2010)

1592 ORDER signed by Senior Judge Lawrence K. Karlton on 6/21/2010 ORDERING 1245 that the Ninth Report of the Special Master shall be filed with the Court on or before 10/21/2010. (Reader, L) (Entered: 06/28/2010)

SERVICE BY MAIL: 1592 Order, served on Alexander L. Landon, Michael J. McCabe. (Reader, L) (Entered: 06/28/2010)

1593 ORDER signed by Senior Judge Lawrence K. Karlton on 7/2/2010 ORDERING that the Clerk is directed to pay Chase Riveland $29,544.57 in accordance with the attached statement. A copy of this order shall be served on the financial department of this court. (Attachments: # 1 Statement) (Zignago, K.) (Entered: 07/02/2010)

SERVICE BY MAIL: 1593 Order served on Alexander L. Landon, Michael J. McCabe. (Zignago, K.) (Entered: 07/02/2010)

1594

ORDER signed by Senior Judge Lawrence K. Karlton on 8/3/10. The Clerk is directed to pay Chase Riveland Valdivia Special Master 5714 Deer Harbor Road, Box 367 Deer Harbor, WA 98243 the amount of $23,870.39 in accordance with the attached statement; and A copy of this order shall be served on the financial department of this court. A copy of this order shall be served on the Financial department of this Court. (cc: Fianancial) (Attachments: # 1)(Mena−Sanchez, L) (Entered: 08/04/2010)

SERVICE BY MAIL: 1594 Order, served on Alexander L. Landon, Michael J. McCabe. (Mena−Sanchez, L) (Entered: 08/04/2010)

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 148 of 168

08/19/2010 08/27/2010
08/27/2010 09/15/2010
09/15/2010 09/22/2010 09/28/2010 09/28/2010 09/29/2010 10/04/2010
10/06/2010 10/19/2010 10/25/2010
10/28/2010 11/01/2010

1595 STIPULATION and PROPOSED ORDER for Undisputed Attorneys' Fees and Costs for First Quarter of 2010 by Jerry Valdivia. (Morris, Maria) Modified on 8/27/2010 (Kaminski, H). (Entered: 08/19/2010)

1596

STIPULATION and ORDER signed by Senior Judge Lawrence K. Karlton on 8/26/10: IT IS CONFIRMED that $455,252.50 is due and collectable as of forty−five days from the date of entry of this Order. Interest on these fees and costs will run from June 12, 2010, accruing at the rate provided by 28 U.S.C. § 1961. (Kaminski, H) (Entered: 08/27/2010)

SERVICE BY MAIL: 1596 Stipulation and Order, served on Alexander L. Landon, Michael J. McCabe. (Kaminski, H) (Entered: 08/27/2010)

1597

ORDER signed by Senior Judge Lawrence K. Karlton on 09/15/10 DIRECTING the Clerk to pay Chase Riveland Valdivia Special Master the amount of $23,561.43 in accordance with the attached statement. A copy of this order shall be served on the financial department of this court. (Attachments: # 1 Statement)(Williams, D) (Entered: 09/15/2010)

SERVICE BY MAIL: 1597 Order, served on Alexander L. Landon, Michael J. McCabe. (cc: sacramento financial) (Williams, D) (Entered: 09/15/2010)

1598 MANDATE of USCA as to 1424 1535 Notices of Appeal filed by Arnold Schwarzenegger: the 1582 Judgment of this Court, entered 3/25/2010, takes effect this date. (Marciel, M) (Entered: 09/23/2010)

1599 ORDER of USCA as to 1535 Notice of Appeal filed by Arnold Schwarzenegger. Appellees' Motion to Transfer Attorneys' Fees and Expenses to District Court is GRANTED. (Zignago, K.) (Entered: 09/28/2010)

1600 STIPULATION and PROPOSED ORDER for Extending the Deadline to File a Motion Regarding a Rates Dispute by Jerry Valdivia. (Morris, Maria) (Entered: 09/28/2010)

1601 STIPULATION and ORDER signed by Senior Judge Lawrence K. Karlton on 09/29/10 ORDERING that the deadline for any motion regarding plf's counsel's 2010 rates shall be 01/12/11. (Benson, A.) (Entered: 09/29/2010)

1602

ORDER signed by Senior Judge Lawrence K. Karlton on 10/01/10 DIRECTING the Clerk to pay Chase Riveland Valdivia Special Master the amount of $60,821.38 in accordance with the attached statement. A copy of this order shall be served on the financial department of this court. (Attachments: # 1 Statement)(Williams, D)(cc: sacramento financial) (Entered: 10/04/2010)

1603 USCA MANDATE as to 1424 Notice of Appeal filed by Arnold Schwarzenegger. (Kastilahn, A) (Entered: 10/06/2010)

1604 ORDER of USCA ORDERING appellees motion to transfer consideration of attorneys' fees and expenses to district court is GRANTED. (Carlos, K) (Entered: 10/19/2010)

1605

ORDER signed by Senior Judge Lawrence K. Karlton on 10/22/10. The state is directed to file within twenty−one (21) days a brief addressing what is properly before the court and what the scope of the mandate is and the manner under which the court shall proceed. The Plaintiffs' will respond within fourteen (14) days thereafter. Upon receipt of the parties' briefing, the court will issue a further order, Alternatively, if the parties are as ncertain as the court, and if such a procedure is available, they may request further guidance from the Circuit.(Mena−Sanchez, L) (Entered: 10/25/2010)

1606 STIPULATION and PROPOSED ORDER for Setting Timing for Filing a Motion for Attorneys' Fees for Appeal of the Order Related to Proposition 9 by Jerry Valdivia. (Morris, Maria) (Entered: 10/28/2010)

1607

STIPULATION and ORDER signed by Senior Judge Lawrence K. Karlton on 10/29/10 ORDERING that the deadline for any motion regarding Pltf's counsel's fees incurred in opposing the appeal of the 3/26/09 Order shall be sixty days after the expiration of the period to file a notice of appeal or writ of certiorari. (Owen, K) (Entered: 11/01/2010)

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 149 of 168

11/02/2010 11/08/2010 11/10/2010 11/10/2010 11/12/2010 11/24/2010 11/29/2010 12/02/2010
12/02/2010
12/03/2010 12/15/2010

1608

ORDER signed by Senior Judge Lawrence K. Karlton on 11/1/2010 ORDERING that the Clerk is directed to pay Chase Riveland the amount of $31,322.76 in accordance with the attached statement. A copy of this order shall be served on the financial department of this court. (cc: Financial) (Attachments: # 1 Statement) (Zignago, K.) (Entered: 11/02/2010)

1609 STIPULATION and PROPOSED ORDER for Confirming Undisputed Attorneys' Fees and Costs for the Second Quarter of 2010 by Jerry Valdivia. (Attachments: # 1 Proposed Order Confirming Undisputed Attorneys' Fees and Costs for Second Quarter of 2010)(Morris, Maria) (Entered: 11/08/2010)

1610

STIPULATION and ORDER signed by Senior Judge Lawrence K. Karlton on 11/9/10 ORDERING that Pltf's undisputed fees and costs of $325,786.24, plus interest, are due and collectable as of 45 days from the date this order is filed. Daily interest runs from 9/17/10 at the rate provided by 28 U.S.C. § 1961. (Owen, K) (Entered: 11/10/2010)

1611 STATEMENT of Plaintiffs' Response to the Ninth Report of the Special Master by Plaintiffs Jerry Valdivia, Hossie Welch. (Huey, Shirley) (Entered: 11/10/2010)

1612 Defendant's BRIEF re Issues and Procedures on Remand of Proposition 9 Matter Following Appeal. (Johnson, Sally) Modified on 11/16/2010 (Mena−Sanchez, L). (Entered: 11/12/2010)

1613 REPLY to plaintiffs' 1611 Response to Ninth Report of the Special Master on status of conditions of the Remedial Order by defendant Arnold Schwarzenegger. (Jacob, Renju) Modified on 11/29/2010 (Marciel, M). (Entered: 11/24/2010)

1614 STATEMENT regarding Ninth Circuit Remand of 1605 Proposition 9 Order by plaintiff Jerry Valdivia. (Morris, Maria) Modified on 11/30/2010 (Marciel, M). (Entered: 11/29/2010)

1615

ORDER signed by Senior Judge Lawrence K. Karlton on 12/1/2010. Defendants shall file a Motion following Remand to Enforce Penal Code § 3044 and to Modify the Permanent Injunction on or before 2/25/2011. Plaintiffs shall file a Motion following Remand to Enforce the Injunction on or before 2/25/2011. Opposition Briefs to these Motions to be submitted on or before 3/30/2011. Reply Briefs may be filed on or before 4/14/2011. Motions shall be set for 5/6/2011 at 10:00 AM in Courtroom 4 (LKK). Parties may request discovery on or before 3/15/2011. Such requests will be treated in a similar manner to Requests for Discovery in Summary Judgment context. If the Court grants a Request for Discovery, the Briefing Schedule will be modified. (Marciel, M) (Entered: 12/02/2010)

1616

ORDER signed by Senior Judge Lawrence K. Karlton on 12/1/10 ORDERING that defendants have demonstrated substantial compliance with the Stipulation and Order dated 4/4/07; and will therefore no longer be a primary focus of Plaintiffs' or the Special Master's monitoring; and further finds that defendants are in violation of this Court's 11/13/06 Order concerning information system changes; and the court ORDERS the following modifications. (Attachments: # 1 Attachment) (Becknal, R) (Entered: 12/02/2010)

1617

ORDER signed by Senior Judge Lawrence K. Karlton on 12/2/10 ORDERING that the Clerk is directed to pay Chase Riveland the amount of $7,331.00 in accordance with the attached statement; and a copy of this order shall be served on the financial department of this court. (Attachments: # 1 Statement)(cc financial dept) (Becknal, R) (Entered: 12/03/2010)

1618

ORDER signed by Senior Judge Lawrence K. Karlton on 12/15/10: Plaintiffs shall file an opening brief on or before 01/18/2011; Defendants shall file a responsive brief by 02/01/2011; Plaintiffs may file a reply brief by 02/08/2011; Defendants may file a sur−reply by 02/15/2011. In Court Hearing set for 3/1/2011 at 01:30 PM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. The court FURTHER ORDERS that the briefing and hearing on the cross−motions following remand is amended as follows: Defendants shall file a motion by 03/25/2011; Opposiition briefs due by 04/27/2011; Reply briefs may be filed by 05/12/2011; Motions shall be set for 6/3/2011 at 10:00 AM in Courtroom 4 (LKK). Parties may request discovery on or before 04/12/2011. (Kaminski, H) Modified on 12/17/2010 (Rivas, A). (Entered: 12/15/2010)

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 150 of 168

12/17/2010 01/04/2011
01/05/2011
01/05/2011 01/05/2011 01/05/2011 01/07/2011 01/07/2011 01/07/2011 01/07/2011
01/10/2011
01/18/2011 02/01/2011 02/02/2011

1619 STIPULATION and PROPOSED ORDER for Undisputed Attorneys' Fees and Costs for the Third Quarter of 2010 by Jerry Valdivia. (Attachments: # 1 Proposed Order)(Morris, Maria) (Entered: 12/17/2010)

1620

ORDER signed by Senior Judge Lawrence K. Karlton on 1/3/2011 re 1619 ORDERING that plaintiffs' undisputed fees and costs of $414,239.09, plus interest, are due and collectable as of forty−five days from the date of entry of this Order. Daily interest runs from November 18, 2010 at the rate provided by 28 U.S.C. 1961. (Duong, D) (Entered: 01/04/2011)

1621

ORDER signed by Senior Judge Lawrence K. Karlton on 1/4/2011 ORDERING 1233 The Clerk is directed to pay to Chase Riveland, Valdivia, Special Master, the amount of $17,257.56 in accordance with the attached statement; and a copy of this order s hall be served on the financial department of this court. (Attachments: # 1 Statement for fees and disbursements)(Reader, L) (Entered: 01/05/2011)

1622 MOTION for 120−DAY EXTENSION of TIME to file Motions to Compel compensation at plaintiffs' cCounsel's reasonable 2010 hourly rates by Jerry Valdivia. (Grunfeld, Gay) Modified on 1/6/2011 (Marciel, M). (Entered: 01/05/2011)

1623 DECLARATION of Gay Crosthwait Grunfeld in support 1622 Motion for 120−Day Extension of Time. (Attachments: # 1 Exhibit A−I) (Grunfeld, Gay) Modified on 1/6/2011 (Marciel, M). (Entered: 01/05/2011)

1624 PROPOSED ORDER granting plaintiffs' 1622 Motion for Extension of Time. (Grunfeld, Gay) Modified on 1/6/2011 (Marciel, M). (Entered: 01/05/2011)

1625 DECLARATION of Samantha Wolff in OPPOSITION TO 1622 Motion for 120−Day Extension of Time file Motions to Compel Compensation at plaintiffs' counsel's reasonable 2010 hourly rates. Attorney Tama, Samantha Derin added. (Tama, Samantha) (Entered: 01/07/2011)

1626 OPPOSITION by Arnold Schwarzenegger to 1622 Motion for 120−Day Extension of Time file Motions to Compel Compensation at plaintiffs' counsel's reasonable 2010 hourly rates. (Tama, Samantha) (Entered: 01/07/2011)

1627 PROPOSED ORDER re 1622 Motion for 120−Day Extension of Time file Motions to Compel Compensation at plaintiffs' counsel's reasonable 2010 hourly rates. (Tama, Samantha) (Entered: 01/07/2011)

1628

EXHIBIT A−D to the Declaration Of Samantha Wolff In Support Of Defendants Opposition To Plaintiffs 120−Day Request For Extension Of Time To File Motion To Compel Compensation Of Attorneys Fees re 1622 Motion for 120−Day Extension of Time file Motions to Compel Compensation at plaintiffs' counsel's reasonable 2010 hourly rates filed by Jerry Valdivia. (Tama, Samantha) (Entered: 01/07/2011)

1629

ORDER granting 1622 Motion for Extension of time signed by Senior Judge Lawrence K. Karlton on 1/10/11: Plaintiffs' time in which they may file motions to compel compensation at plaintiffs'counsel's reasonable 2010 billing rates is hereby extended from January 12, 2011 to and including May 12, 2011. (Kaminski, H) (Entered: 01/10/2011)

1630 OPENING BRIEF Regarding Standards on Remand by Jerry Valdivia. (Morris, Maria) (Entered: 01/18/2011)

1631 RESPONSE by Edmund G. Brown, Jr to 1630 Brief. Attorney Johnson, Sally Anne added. (Johnson, Sally) (Entered: 02/01/2011)

1632

ORDER signed by Senior Judge Lawrence K. Karlton on 2/1/11 ORDERING that the Clerk is directed to pay to: Chase Riveland, Valdivia Special Master, 5714 Deer Harbor Road, Box 367, Deer Harbor, WA 98243; the amt of $12,987.34 in accordance with the attached statement; and A copy of this order shall be served on the financial department of this court. (Attachments: # 1 Statement)(Becknal, R) (Entered: 02/02/2011)

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 151 of 168

02/02/2011 02/08/2011 02/18/2011 03/08/2011 03/10/2011
03/15/2011 03/15/2011 03/15/2011 03/16/2011 03/17/2011 03/18/2011
04/01/2011 04/18/2011

1633 DOCUMENT(S) SERVED ELECTRONICALLY: 1632 Order to the Financial Department of the Court. (Becknal, R) (Entered: 02/02/2011)

1634 REPLY by Jerry Valdivia re 1618 Order, Set/Reset Deadlines and Hearings,,,,,, 1630 Brief, 1631 Response. (Morris, Maria) (Entered: 02/08/2011)

1635 ORDER signed by Senior Judge Lawrence K. Karlton on 2/18/11 VACATING the 3/1/11 hearing. The court will make a final determination on the appropriate standard to apply when it decides the merits of the cross−motion. (Manzer, C) (Entered: 02/18/2011)

1636

ORDER signed by Senior Judge Lawrence K. Karlton on 03/07/11 ORDERING the Clerk to pay Chase Riveland, Valdivia Special Master, the amt of $26,711.00 in accordance with the attached statement; a copy of this order shall be served on the financial department (cc: Financial). (Attachments: # 1 Statement)(Benson, A.) (Entered: 03/08/2011)

1637

ORDER signed by Senior Judge Lawrence K. Karlton on 3/9/11 ORDERING that within thirty (30) days of the issuance of this order defendants shall deposit with the Clerk of the Court a fifth interim payment of costs in the amount of $500,000.00 which amount shall be invested in the interest−bearing account previously opened for this action; and The Clerk of the Court is directed to serve a copy ofthis order on the Financial Department of this court. (cc: Financial Dept)(Becknal, R) (Entered: 03/10/2011)

1638 MOTION Modify Schedule for Briefing and Hearing Regarding Penal Code Section 3044 Remand Proceedings by Edmund G. Brown, Jr. Attorney Mello, Paul B added. (Mello, Paul) (Entered: 03/15/2011)

1639 DECLARATION of Paul B. Mello in SUPPORT OF 1638 MOTION Modify Schedule for Briefing and Hearing Regarding Penal Code Section 3044 Remand Proceedings. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Mello, Paul) (Entered: 03/15/2011)

1640 PROPOSED ORDER re 1638 MOTION Modify Schedule for Briefing and Hearing Regarding Penal Code Section 3044 Remand Proceedings by Edmund G. Brown, Jr. (Mello, Paul) (Entered: 03/15/2011)

1641 RESPONSE by Jerry Valdivia to 1638 MOTION Modify Schedule for Briefing and Hearing Regarding Penal Code Section 3044 Remand Proceedings. (Attachments: # 1 Declaration of Maria V. Morris, # 2 Proposed Order)(Morris, Maria) (Entered: 03/16/2011)

1642 REPLY by Edmund G. Brown, Jr to RESPONSE to 1638 MOTION Modify Schedule for Briefing and Hearing Regarding Penal Code Section 3044 Remand Proceedings. (Mello, Paul) (Entered: 03/17/2011)

1643

ORDER signed by Senior Judge Lawrence K. Karlton on 3/17/2011 ORDERING that Dfts shall file a Motion to Enforce Penal Code § 3044 and to Modify the Permanent Injunction by 8/31/2011. Pltfs shall file a Motion to Enforce the Injunction by 8/31/2011. Opposition briefs to those motions shall be filed by 10/3/2011. Reply briefs may be filed by 10/18/2011. The motions shall be heard on 11/4/2011 at 10:00 a.m.. Parties may request discovery for the purpose of opposing the other party's motion by 9/14/2011. Nothing in this Order or prior Orders regarding the procedures and scheduling for the motions on remand regarding Proposition 9 shall be construed as limiting the Pltfs' to monitor compliance with the Permanent Injunction in this case, as set forth in 25 of the Injunction. (Zignago, K.) (Entered: 03/18/2011)

1644

ORDER signed by Senior Judge Lawrence K. Karlton on 04/01/11 ORDERING the Clerk to pay Chase Riveland, Valdivia Special Master, the amt of $45,962.90 in accordance with the attached statement; a copy of this order shall be served on the financial department (cc: Financial). (Attachments: # 1 Attachment)(Benson, A.) (Entered: 04/01/2011)

1645 STIPULATION and PROPOSED ORDER by Jerry Valdivia. (Attachments: # 1 Proposed Order Confirming Q4 2010 Undisputed Fees and Costs)(Morris, Maria) (Entered: 04/18/2011)

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 152 of 168

04/20/2011
04/21/2011 05/10/2011
05/12/2011 05/12/2011 05/12/2011 05/12/2011 05/12/2011 05/12/2011 05/12/2011 05/12/2011 05/12/2011 05/12/2011 05/12/2011 05/12/2011 05/12/2011 05/12/2011

1646

ORDER CONFIRMING UNDISPUTED ATTORNEYS' FEES AND COSTS for the 4th Quarter of 2010, signed by Senior Judge Lawrence K. Karlton on 4/20/2011 ORDERING 1645 that plaintiffs' undisputed fees and costs of $456,836.48, plus interest, are due and collectable as of 45 days from the date of entry of this Order. Daily interest runs from 3/2/2011 at the rate provided by 28:1961. (Reader, L) Modified on 4/20/2011 (Reader, L). (Entered: 04/20/2011)

1647 TENTH REPORT of the Special Master Chase Riveland on the status of conditions of the Remedial Order. (Donati, J) (Entered: 04/22/2011)

1648

ORDER signed by Senior Judge Lawrence K. Karlton on 05/09/11 ORDERING the Clerk to pay Chase Riveland, Valdivia Special Master, the amt of $25,154.61 in accordance with the attached statement; a copy of this order shall be served on the financial department (cc: Financial) (Attachments: # 1 Attachment) (Benson, A.) (Entered: 05/10/2011)

1649 MOTION to COMPEL 2010 Rates by Jerry Valdivia. Motion Hearing set for 07/18/11 at 10:00 AM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. (Morris, Maria) (Entered: 05/12/2011)

1650 DECLARATION of Michael W. Bien in support of 1649 Motion to Compel. (Morris, Maria) (Entered: 05/12/2011)

1651 DECLARATION of Gay C. Grunfeld in SUPPORT OF 1649 MOTION to COMPEL 2010 Rates Notice and Memorandum in Support Thereof. (Morris, Maria) (Entered: 05/12/2011)

1652 DECLARATION of Geoffrey T. Holtz in SUPPORT OF 1649 MOTION to COMPEL 2010 Rates Notice and Memorandum in Support Thereof. (Morris, Maria) (Entered: 05/12/2011)

1653 DECLARATION of Sara Norman in SUPPORT OF 1649 MOTION to COMPEL 2010 Rates Notice and Memorandum in Support Thereof. (Morris, Maria) (Entered: 05/12/2011)

1654 DECLARATION of Susan L. Burrell in SUPPORT OF 1649 MOTION to COMPEL 2010 Rates Notice and Memorandum in Support Thereof. (Morris, Maria) (Entered: 05/12/2011)

1655 DECLARATION of Richard M. Pearl in SUPPORT OF 1649 MOTION to COMPEL 2010 Rates Notice and Memorandum in Support Thereof. (Morris, Maria) (Entered: 05/12/2011)

1656 DECLARATION of Sanford Jay Rosen in SUPPORT OF 1649 MOTION to COMPEL 2010 Rates Notice and Memorandum in Support Thereof. (Morris, Maria) (Entered: 05/12/2011)

1657 DECLARATION of Maria V. Morris in SUPPORT OF 1649 MOTION to COMPEL 2010 Rates Notice and Memorandum in Support Thereof. (Morris, Maria) (Entered: 05/12/2011)

1658 DECLARATION of Jeff Adachi in SUPPORT OF 1649 MOTION to COMPEL 2010 Rates Notice and Memorandum in Support Thereof. (Morris, Maria) (Entered: 05/12/2011)

1659 DECLARATION of William Chapman in SUPPORT OF 1649 MOTION to COMPEL 2010 Rates Notice and Memorandum in Support Thereof. (Morris, Maria) (Entered: 05/12/2011)

1660 DECLARATION of Jonathan Laba in SUPPORT OF 1649 MOTION to COMPEL 2010 Rates Notice and Memorandum in Support Thereof. (Morris, Maria) (Entered: 05/12/2011)

1661 DECLARATION of Carter White in SUPPORT OF 1649 MOTION to COMPEL 2010 Rates Notice and Memorandum in Support Thereof. (Morris, Maria) (Entered: 05/12/2011)

1662 NOTICE of Filing of Appendix of Previously Filed Declarations by Jerry Valdivia. (Morris, Maria) (Entered: 05/12/2011)

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 153 of 168

05/12/2011 05/16/2011
06/03/2011 06/27/2011 06/27/2011 06/27/2011 06/27/2011 06/27/2011
06/28/2011 07/11/2011 07/12/2011 07/13/2011

1663 PROPOSED ORDER re 1649 Motion to Compel by Jerry Valdivia. (Morris, Maria) Modified on 5/13/2011 (Benson, A.). (Entered: 05/12/2011)

1664

ORDER signed by Senior Judge Lawrence K. Karlton on 5/13/2011 ORDERING 1647 The court has considered the report and ADOPTS the Special Master's F &R's in full; Further, the court HEREBY FINDS that dfts have demonstrated substantial compliance with the following requirements: pltfs' counsel has access to the information reasonably necessary to monitor compliance; and Deputy Commissioners shall not have authority to increase the Return to Custody Assessment at the Probable Cause Hearing; these requirements will therefore no longer be a primary focus of pltfs' or the Special Master's monitoring unless they are inextricably linked with review of the hearing process, the remedial sanctions obligations of the Permanent Injunction, or arise in the course of investigating an individual parolee's situation; these items will remain in this status unless and until it comes to the parties' or the Special Master's attention that there has been a significant decline in compliance; to allow for such attention, dfts SHALL report the status of these requirements to all parties every 6 months, beginning on 1/8/2012. (Reader, L) (Entered: 05/16/2011)

1665 ORDER signed by Senior Judge Lawrence K. Karlton on 6/2/11 DIRECTING the Clerk to pay $27,400.02 to Special Master. (cc: Financial) (Attachments: # 1 Statement for fees and disbursements)(Meuleman, A) (Entered: 06/03/2011)

1666 OPPOSITION by Edmund G. Brown, Jr to 1649 Motion to Compel 2010 rates. Attorney Schneider, Walter R. added. (Schneider, Walter) (Entered: 06/27/2011)

1667 DECLARATION of Gary Greenfield in OPPOSITION TO 1649 Motion to Compel 2010 rates. (Schneider, Walter) (Entered: 06/27/2011)

1668 DECLARATION of Paul Gruwell in OPPOSITION TO 1649 Motion to Compel 2010 rates. (Schneider, Walter) (Entered: 06/27/2011)

1669 REQUEST for JUDICIAL NOTICE by Edmund G. Brown, Jr. (Schneider, Walter) (Entered: 06/27/2011)

1670

STIPULATION and PROPOSED ORDER for Confirming Payment of Remaining Attorneys' Fees for 2010 by Nghia Buckius, Mario Carillo, Phillip Castillo, Vincent Cervantes, George Cortes, Francis Culotta, David Dixon, Russell P. Hall, John Hamre, Karl Horne, Scott Iroff, Walter − Jones, Mustafa Khalil, Raymond Latimore, Andre Lyons, Jeffrey H Malone, Claude McDaniel, Daren Jean Miller, Nathan Morris, Edward Navarro, Steven O'Donohue, Ogwuobu Ojoir, Willie Patton, James − Robinson, Troy Scurry, Mark St John, Gregory Strong, Alfred Taylor, Christopher Thomas, Jerry Valdivia, Jimmy Watson, Hossie Welch. (Galvan, Ernest) (Entered: 06/27/2011)

1671 STIPULATION and ORDER 1670 signed by Senior Judge Lawrence K. Karlton on 6/28/11; IT IS CONFIRMED that $20,199.00 plus interest is due and collectable as of 45 days from the date of the entry of this Order.(Matson, R) (Entered: 06/28/2011)

1672

REPLY by Jerry Valdivia re 1649 Motion to Compel 2010 Rates and MOTION to Strike Declaration of Gary Greenfield. Attorney Rosen, Sanford Jay added. (Attachments: # 1 Declaration Michael W. Bien, # 2 Declaration Sumana Cooppan)(Rosen, Sanford) Modified on 7/12/2011 (Duong, D). (Entered: 07/11/2011)

1673

ORDER signed by Senior Judge Lawrence K. Karlton on 7/11/2011 ORDERING 1233 The Clerk is directed to pay to: Chase Riveland Valdivia Special Master, Deer Harbor, WA; the amount of $28,400.47 in accordance with the attached statement; and a copy of this order shall be served on the financial department of this court. (Attachments: # 1 Statement for Fees)(Reader, L) (Entered: 07/12/2011)

1674

ORDER signed by Senior Judge Lawrence K. Karlton on 7/11/2011 ORDERING that the hearing re 1649 Motion to Compel 2010 Rates currently set for 7/18/2011 is VACATED. The court will delay decision on the pending motion until a decision is issued on the matter in Armstrong. When a decision on the matter is issued in Armstrong, Pltfs SHALL re−notice the motion to compel fees for hearing in this court. If no decision is issued before 8/31/2011, Pltfs SHALL re−notice the motion

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 154 of 168

08/02/2011
08/03/2011 08/05/2011
08/09/2011 08/29/2011 08/31/2011 08/31/2011 08/31/2011 08/31/2011 08/31/2011 08/31/2011 08/31/2011 08/31/2011 08/31/2011
08/31/2011

to compel fees for hearing in this court. (Zignago, K.) (Entered: 07/13/2011)

1675

ORDER signed by Senior Judge Lawrence K. Karlton on 08/01/11 ORDERING the Clerk to pay Chase Riveland, Valdivia Special Master, the amt of $21,641.83 in accordance with the attached statement; a copy of this order shall be served on the financial department (cc: Financial) (Attachments: # 1 statement) (Benson, A.) (Entered: 08/02/2011)

1676 STIPULATION and PROPOSED ORDER for Undisputed Fees and Costs Re First Quarter of 2011 and Previously Disputed Items by Jerry Valdivia. (Attachments: # 1 Proposed Order Re Undispted Fees and Costs)(Galvan, Ernest) (Entered: 08/03/2011)

1677

ORDER signed by Senior Judge Lawrence K. Karlton on 8/4/11 ORDERING that plaintiffs' undisputed fees and costs of $513,591.92, plus interest, are due and collectable as of forty−five days from the date of entry of this Order. Daily interest runs from April 29, 2011, at the rate provided by 28 U.S.C. § 1961. (Becknal, R) (Entered: 08/05/2011)

1678 AMENDED NOTICE OF HEARING on 1649 Motion to Compel 2010 Rates by Jerry Valdivia. Motion Hearing RESET for 09/12/11 at 10:00 AM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. (Bien, Michael) Modified on 8/10/2011 (Benson, A.). (Entered: 08/09/2011)

1679 RESPONSE by Edmund G. Brown, Jr. 1678 Amended Notice of Hearing, re 1649 Motion to Compel 2010 rates. (Mello, Paul) Modified on 8/30/2011 (Reader, L). (Entered: 08/29/2011)

1680 MOTION following REMAND to enforce penal code section 3044 and to modify the permanent injunction by Edmund G. Brown, Jr. Hearing set for 11/4/2011 at 10:00 AM in Courtroom 4 before Judge Karlton. (Mello, Paul) Modified on 9/1/2011 (Zignago, K.). (Entered: 08/31/2011)

1681 MEMORANDUM by Edmund G. Brown, Jr in SUPPORT of 1680 Motion. (Mello, Paul) Modified on 9/1/2011 (Zignago, K.). (Entered: 08/31/2011)

1682 REQUEST for JUDICIAL NOTICE by Edmund G. Brown, Jr in re 1680 Motion. (Attachments: # 1 Exhibit 1)(Mello, Paul) Modified on 9/1/2011 (Zignago, K.). (Entered: 08/31/2011)

1683 PROPOSED ORDER granting 1680 Motion. (Mello, Paul) Modified on 9/1/2011 (Zignago, K.). (Entered: 08/31/2011)

1684 MOTION to Enforce Injunction and to Prohibit Implementation of Section 5.3 of Proposition 9 by Plaintiffs. Motion hearing set for 11/4/2011 at 10:00 AM in Courtroom 4 before Judge Karlton. (Galvan, Ernest) Modified on 9/1/2011 (Zignago, K.). (Entered: 08/31/2011)

1685 MEMORANDUM by Jerry Valdivia in in Support of 1684 Motion to Enforce Injunction and to Prohibit Implementation of Section 5.3 of Proposition 9. (Galvan, Ernest) Modified on 9/1/2011 (Zignago, K.). (Entered: 08/31/2011)

1686 DECLARATION of Ernest Galvan in Support of 1684 Motion to Enforce Injunction and Prohibit Implementation of Section 5.3 of Proposition 9. (Galvan, Ernest) Modified on 9/1/2011 (Zignago, K.). (Entered: 08/31/2011)

1687 NOTICE of Request to Seal Document(s) pursuant to L.R. 141 by Plaintiffs. (Huey, Shirley) Modified on 9/1/2011 (Zignago, K.). (Entered: 08/31/2011)

1688

DECLARATION of Shirley Huey in Support of 1684 Motion to Enforce Injunction and to Prohibit Implementation of Section 5.3 of Proposition 9. (Attachments: # 1 Exhibit A−E, # 2 Exhibit F−G, # 3 Exhibit H−1, # 4 Exhibit H−2 − L, # 5 Exhibit M, # 6 Exhibit N, # 7 Exhibit O, # 8 Exhibit P, # 9 Exhibit Q, # 10 Exhibit R−W, # 11 Exhibit X−Y)(Huey, Shirley) Modified on 9/1/2011 (Zignago, K.). (Entered: 08/31/2011)

1689 CERTIFICATE of SERVICE by Jerry Valdivia re 1687 Notice of Request to Seal Document(s). (Huey, Shirley) Modified on 9/1/2011 (Zignago, K.). (Entered: 08/31/2011)

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 155 of 168

09/02/2011
09/07/2011 09/12/2011
09/14/2011 10/03/2011 10/03/2011 10/03/2011 10/04/2011
10/05/2011
10/05/2011 10/07/2011 10/07/2011 10/07/2011 10/07/2011

1690

ORDER signed by Judge Lawrence K. Karlton on 9/1/2011. Clerk directed to pay Chase Riveland, Special Master, the amount of $17,050.75 in accordance with attached Statement. A copy of this Order shall be served financial department. (Attachments: # 1 Special Master's Statement for Fees) [cc: CFS] (Marciel, M) (Entered: 09/02/2011)

1691 ORDER signed by Judge Lawrence K. Karlton on 9/7/2011 ORDERING that Pltf's 1687 Request to Seal Document is tentatively GRANTED. The court will revisit whether these documents should be permanently sealed at a later time. (Zignago, K.) (Entered: 09/07/2011)

1692

MINUTES (Text Only) for proceedings held before Judge Lawrence K. Karlton: MOTION HEARING held on 9/12/2011 re 1678 Plaintiffs' Motion to Compel 2010 rates by Jerry Valdivia. After oral argument, the matter stands SUBMITTED. Court order to follow. Plaintiffs Counsel Michael Bien present. Defendants Counsel Walter Schneider present. Court Reporter: C. Bodene. (Rivas, A) (Entered: 09/14/2011)

1693 ORDER granting 1649 Motion to Compel signed by Judge Lawrence K. Karlton on 9/13/11. (Kaminski, H) (Entered: 09/14/2011)

1694 OPPOSITION by Edmund G. Brown, Jr. to 1684 Motion to Enforce Injunction and to Prohibit Implementation of Section 5.3 of Proposition 9. (Schneider, Walter) (Entered: 10/03/2011)

1695 OPPOSITION by plaintiffs to defendants' 1680 Motion following Remand to enforce Penal Code Section 3044 and to modify the Permanent Injunction. (Holtz, Geoffrey) Modified on 10/4/2011 (Marciel, M). (Entered: 10/03/2011)

1696 OBJECTIONS by defendant Edmund G. Brown, Jr. to 1684 Motion to Enforce Injunction and to Prohibit Implementation of Section 5.3 of Proposition 9. (Schneider, Walter) Modified on 10/4/2011 (Marciel, M) (Entered: 10/03/2011)

1697

ORDER signed by Judge Lawrence K. Karlton on 10/3/2011. The Clerk directed to pay to: Chase Riveland, Valdivia Special Master at 5714 Deer Harbor Road − Box 367 in Deer Harbor, WA 98243 amount of $53,338.03 in accordance with attachedStatement. A copy of this Order shall be served on Financial Department. (Attachments: # 1 Statement of Fees and Disbursements for 9/1/2011 through 9/30/2011) (Marciel, M) (Entered: 10/04/2011)

1698

MOTION to COMPEL Inspections of Hearing Locations for Parole Proceedings in Sacramento County Jails by Jerry Valdivia. Motion Hearing set for 10/13/2011 at 10:00 AM in Courtroom 9 (GGH) before Magistrate Judge Gregory G. Hollows. (Attachments: # 1 Joint Statement of the Parties to Discovery Dispute , # 2 Declaration of Shirley Huey )(Huey, Shirley) Modified on 10/6/2011 (Duong, D). (Entered: 10/05/2011)

1699 DECLARATION of Michael W. Bien in SUPPORT OF 1698 MOTION to COMPEL Inspections of Hearing Locations for Parole Proceedings in Sacramento County Jails. (Bien, Michael) (Entered: 10/05/2011)

1700 MOTION to COMPEL Inspection of Hearing Locations for Parole Proceedings at Placer County Jail by Jerry Valdivia. Motion Hearing set for 10/20/2011 at 10:00 AM in Courtroom 9 (GGH) before Magistrate Judge Gregory G. Hollows. (Huey, Shirley) Modified on 10/11/2011 (Kastilahn, A). (Entered: 10/07/2011)

1701 JOINT Statement of the Parties to Discovery Dispute Re: Hearing Locations for Parole Proceedings in Placer County Jail by Plaintiff Jerry Valdivia re 1700 MOTION to COMPEL. (Huey, Shirley) Modified on 10/11/2011 (Kastilahn, A). (Entered: 10/07/2011)

1702 DECLARATION of Shirley Huey in SUPPORT OF 1700 MOTION to COMPEL Inspection of Hearing Locations for Parole Proceedings at Placer County Jail. (Huey, Shirley) Modified on 10/11/2011 (Kastilahn, A). (Entered: 10/07/2011)

1703 STIPULATION and PROPOSED ORDER for Shortened Time for Hearing re 1700 MOTION to COMPEL Inspection of Hearing Locations for Parole Proceedings at Placer County Jail by Jerry Valdivia. (Huey, Shirley) Modified on 10/11/2011

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 156 of 168

10/07/2011 10/11/2011 10/11/2011 10/13/2011
10/14/2011 10/18/2011 10/18/2011 10/18/2011 10/18/2011 10/18/2011 10/24/2011
10/27/2011 10/28/2011 10/31/2011

(Kastilahn, A). (Entered: 10/07/2011)

1704 CERTIFICATE of SERVICE by Jerry Valdivia re 1698 MOTION to COMPEL Inspections of Hearing Locations for Parole Proceedings in Sacramento County Jails, 1699 Declaration. (Huey, Shirley) (Entered: 10/07/2011)

1705 ORDER TO SHORTEN TIME signed by Magistrate Judge Gregory G. Hollows on 10/11/11; Motion Hearing as to Pltfs' 1700 Motion to Compel is RESET for 10/13/2011 at 10:00 AM in Courtroom 9 (GGH) before Magistrate Judge Gregory G. Hollows. (Manzer, C) (Entered: 10/11/2011)

1706 STIPULATION and PROPOSED ORDER for Payment of Attorneys' Fees for 2010, Pursuant to the Court's September 14, 2011 Order by Jerry Valdivia. (Galvan, Ernest) (Entered: 10/11/2011)

1707

MINUTES (Text Only) for proceedings held before Magistrate Judge Gregory G. Hollows: MOTION HEARING held on 10/13/2011 re 1700 MOTION to COMPEL Notice of Motion and Motion to Compel Inspection of Hearing Locations for Parole Proceedings at Placer County Jail filed by Jerry Valdivia, 1705 Order, Set/Reset Motion Hearing. The Matter is submitted and the court will issue an order. Plaintiffs Counsel Kenneth M. Walczak present. Defendants Counsel Renju Jacob present.Valerie Flood, 3rd Party Plaintiff present. Court Reporter/CD Number: 1 of 1. (Callen, V) (Entered: 10/13/2011)

1708 ORDER signed by Magistrate Judge Gregory G. Hollows on 10/13/11 DENYING 1698 and 1700 Motions to Compel. Plaintiffs experts are free to engage in informal discussions with the CDCR state representative present during the inspections. (Meuleman, A) (Entered: 10/14/2011)

1709 STIPULATION AND ORDER for payment of attorneys' fees for 2010 1706 signed by Judge Lawrence K. Karlton on 10/18/11. (Attachments: # 1 Exhibit A)(Matson, R) (Entered: 10/18/2011)

1710 REPLY to 1695 Opposition to 1680 Motion following Remand to enforce Penal Code Section 3044 and Modify the Permanent Injunction by Edmund G. Brown, Jr. (Schneider, Walter) Modified on 10/19/2011 (Michel, G). (Entered: 10/18/2011)

1711 REPLY to 1694 Opposition to Opposition to 1684 Motion to Enforce Injunction and to Prohibit Implementation of Section 5.3 of Proposition 9 by all Plaintiffs. (Holtz, Geoffrey) Modified on 10/19/2011 (Michel, G). (Entered: 10/18/2011)

1712 DECLARATION of Ernest Galvan in support of 1684 Motion to Enforce Injunction and to Prohibit Implementation of Section 5.3 of Proposition 9. (Attachments: # 1 Exhibit H, # 2 Exhibit I, # 3 Exhibit J, # 4 Exhibit K)(Holtz, Geoffrey) Modified on 10/19/2011 (Michel, G). (Entered: 10/18/2011)

1713 SEALED EVENT (Michel, G) (Entered: 10/19/2011)

1714

TRANSCRIPT of Plaintiff's Motion to Compel Proceedings held on 10/13/11, before Magistrate Judge Gregory G. Hollows. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction must be filed within 5 court days. Redaction Request due 11/17/2011. Redacted Transcript Deadline set for 11/28/2011. Release of Transcript Restriction set for 1/23/2012 filed by ECRO Jonathan Anderson, Phone number 916−930−4072 E−mail janderson@caed.uscourts.gov. (Anderson, J) (Entered: 10/24/2011)

1715 STIPULATION and PROPOSED ORDER confirming undisputed Attorneys' Fees and Costs for Second Quarter, 2011 by Jerry Valdivia. (Galvan, Ernest) Modified on 10/31/2011 (Marciel, M). (Entered: 10/27/2011)

1716 MOTION for RECONSIDERATION of Magistrate Judge's 1708 Order by Jerry Valdivia. (Attachments: # 1 Proposed Order) (Galvan, Ernest) Modified on 10/31/2011 (Marciel, M). (Entered: 10/28/2011)

1717 STIPULATION and ORDER 1715 confirming undisputed attorneys' fees and costs signed by Judge Lawrence K. Karlton on 10/28/2011. An amount of $449,337.57 is

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 157 of 168

11/01/2011 11/02/2011 11/02/2011 11/07/2011
11/09/2011
11/10/2011 11/15/2011 11/17/2011 11/21/2011 11/28/2011

due and collectible as of 45 days from date of this Order's entry. (Marciel, M) (Entered: 10/31/2011)

1718

[DISREGARD − See 1716 Motion for Reconsideration of 1708 Order on Motion to Compel] MOTION for RECONSIDERATION of Magistrate Judge ruling 1708 by Jerry Valdivia. Motion Hearing is SET for 12/5/2011 at 10:00 AM in Courtroom 4 (LKK) before Judge Lawrence K. Karlton. (Galvan, Ernest) Modified on 11/3/2011 (Mena−Sanchez, L). Modified on 12/2/2011 (Michel, G). (Entered: 11/01/2011)

1719

ORDER signed by Judge Lawrence K. Karlton on 11/1/11: The Clerk is directed to pay to Chase Riveland, Special Master the amount of $18,582.20 in accordance with the attached statement. A copy of this order shall be served on the financial department of this court. (Attachments: # 1 Statement) (Kaminski, H) (Entered: 11/02/2011)

1720

MINUTE ORDER (TEXT ONLY) by CRD. The parties are hereby notified that the hearing on Plaintiffs' Motion to Enforce the Permanent Injunction 1684 , Defendants' Motion to Modify the Injunction 1680 , and Plaintiffs' Request to Seal Documents 1687 is CONTINUED TO 11/9/2011 at 10:00 AM in Courtroom 4 (LKK) before Judge Lawrence K. Karlton. Ordered by Judge Lawrence K. Karlton on November 2, 2011. (Rivas, A) (Entered: 11/02/2011)

1721

TRANSCRIPT of Proceedings Re: Motion to Compel 2010 Rates held on September 12th, 2011, before Judge Lawrence K. Karlton, filed by Court Reporter Cathie Bodene, Phone number 916−446−6360 E−mail cbodene@caed.uscourts.gov. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through Court Reporter Cathie Bodene or PACER. Any Notice of Intent to Request Redaction must be filed within 5 court days. Redaction Request due 12/1/2011. Redacted Transcript Deadline set for 12/8/2011. Release of Transcript Restriction set for 2/6/2012. (Bodene, C) (Entered: 11/07/2011)

1722

MINUTES (Text Only) for proceedings held before Judge Lawrence K. Karlton: MOTION HEARING held on 11/9/2011 re 1684 Motion to Enforce Injunction and to Prohibit Implementation of Section 5.3 of Proposition 9 filed by Plaintiffs, 1680 and Motion following Remand to enforce Penal Code Section 3044 and Modify the Permanent Injunction filed by Edmund G. Brown, Jr. After oral argument, the matter stands SUBMITTED. Court order to follow. Plaintiffs Counsel Geoffrey T. Holtz, Michael Bien, Ernest Galvan present. Defendants Counsel Walter Schneider present. Court Reporter: K. Bennett. (Rivas, A) (Entered: 11/09/2011)

1723

MEMORANDUM of DECISION signed by Magistrate Judge Gregory G. Hollows on 11/9/2011. There is neither language in Rule 45 itself, nor authority in the case law, that gives this Court jurisdiction to compel an unwilling non−party to subject personnel to informal interviews with partys expert pursuant to subpoenaed inspection of premises or operations. (Marciel, M) (Entered: 11/10/2011)

1724 PROPOSED ORDER re Payment of Attorneys' Fees for First Quarter, 2011 and Comito fees at 2011 rates by Jerry Valdivia. (Galvan, Ernest) (Entered: 11/15/2011)

1725

ORDER signed by Judge Lawrence K. Karlton on 11/16/2011 ORDERING 1724 Pursuant to this agreement, Defendants are ORDERED to pay the principal amounts for the undisputed hours (the difference between the principal amounts at 2008 rates previously paid and the 2011 rates now owing), plus interest; and that the amounts set forth above are due and collectable as of 45 days from the date of entry of this Order.(Reader, L) (Entered: 11/17/2011)

1726 OPPOSITION by County of Placer to 1718 , 1716 MOTION for RECONSIDERATION re 1708 Order. (Flood, Valerie) Modified on 11/22/2011 (Mena−Sanchez, L). (Entered: 11/21/2011)

1727 REPLY by Jerry Valdivia to RESPONSE to 1718 MOTION for RECONSIDERATION. Attorney Walczak, Kenneth M. added. (Attachments: # 1 Declaration of Kenneth M. Walczak with Exhibits A−D)(Walczak, Kenneth)

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 158 of 168

12/02/2011 12/06/2011 12/15/2011 12/19/2011 12/19/2011
12/23/2011 01/04/2012 01/09/2012 01/10/2012 01/11/2012 01/24/2012
02/02/2012 02/23/2012

Modified on 11/29/2011 (Zignago, K.). (Entered: 11/28/2011)

1728 ORDER signed by Judge Lawrence K. Karlton on 12/2/2011 CONTINUING Motion Hearing as to 1716 Motion for Reconsideration of Magistrate Judge's 1708 Order until 12/19/2011 at 10:00 AM in Courtroom 4 (LKK) before Judge Lawrence K. Karlton. (Michel, G) (Entered: 12/02/2011)

1729 ORDER signed by Judge Lawrence K. Karlton on 12/5/11 ORDERING that the Clerk is directed to pay to Chase Riveland, Valdivia Special Master, the amount of $12,634.96. (Attachments: # 1 Statement for Fees and Disbursements)(Kastilahn, A) (Entered: 12/06/2011)

1730 ELEVENTH REPORT of the Special Master Chase Riveland on the status of conditions of the Remedial Order. (Waggoner, D) (Entered: 12/15/2011)

1731 JOINT STATEMENT AND RECOMMENDATION signed by Special Master Chase Riveland on 12/19/2011 RECOMMENDING that all remaining deadlines and hearings scheduled for this matter be vacated. (Michel, G) (Entered: 12/19/2011)

1732

MINUTES (Text Only) for proceedings held before Judge Lawrence K. Karlton: MOTION HEARING held on 12/19/2011 re 1718 , 1716 Motion for Reconsideration of Magistrate Judge's 1708 Order filed by Jerry Valdivia. The Court finds that the matter as it presently stands is MOOT. Plaintiffs Counsel Ernest Galvan present. Defendants Counsel Valerie Flood, James Wood, Samantha Wolff present. Court Reporter: D. Shepard. (Rivas, A) (Entered: 12/19/2011)

1733

ORDER signed by Judge Lawrence K. Karlton on 12/22/2011 ORDERING that the court finds that plaintiff's 1716 motion to reconsider the magistrate judge's order is DENIED as MOOT. It follows from the joint statement that the magistrate judge's order denying plaintiffs motion to compel informal interviews of county jail staff is also moot, and is vacated.(Duong, D) (Entered: 12/23/2011)

1734 STIPULATION and PROPOSED ORDER confirming undisputed attorneys' fees and costs for Third Quarter, 2011 by Jerry Valdivia. (Galvan, Ernest) Modified on 1/5/2012 (Marciel, M). (Entered: 01/04/2012)

1735 ORDER signed by Judge Lawrence K. Karlton on 1/9/12: The Clerk is directed to pay to Chase Riveland the amount of $27,591.35 in accordance with the attached statement. A copy of this order shall be served on the financial department of this court. (Attachments: # 1 Statement) (Kaminski, H) (Entered: 01/09/2012)

1736

STIPULATION and ORDER signed by Judge Lawrence K. Karlton on 1/10/2012, Confirming undisputed attorneys' fees and costs for third quarter 2011. WHEREFORE, IT IS CONFIRMED 1734 that $593,156.74 plus interest accruing at the rate provided by 28:1961 is due and collectable as of forty−five days from the date of entry of this Order. 1087 (Reader, L) (Entered: 01/10/2012)

1737 NOTICE of Request to be Terminated from Participating in Action by County of Placer. (Flood, Valerie) (Entered: 01/11/2012)

1738

ORDER signed by Judge Lawrence K. Karlton on 1/23/12; Defendant's Motion to Enforce Penal Code § 3044 and to Modify the Permanent Injunction, ECF No. 1680, is DENIED, except that Injunction 11(b)(iv)and 23 are modified to reflect that defendants shall provide a revocation hearing no later than the 45th calendar day after the placement of the parole hold. Plaintiff's Motion to Enforce the Injunction, ECF No. 1684, is GRANTED, except that the injunction is modified as stated above. (Matson, R) (Entered: 01/24/2012)

1739

ORDER signed by Senior Judge Lawrence K. Karlton on 02/01/12 ORDERING the Clerk to pay Chase Riveland, Valdivia Special Master, the amount of $17,433.19 in accordance with the attached statement; a copy of this order shall be served on the financial department (Attachments: # 1 Statement) (cc: Financial). (Benson, A.) (Entered: 02/02/2012)

1740 NOTICE of APPEAL by Edmund G. Brown, Jr. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Mello, Paul) (Entered: 02/23/2012)

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 159 of 168

02/23/2012 02/24/2012
02/28/2012 03/02/2012
03/05/2012 03/05/2012 03/06/2012 03/07/2012
03/07/2012 03/21/2012 04/04/2012 04/04/2012
04/06/2012 04/10/2012 04/13/2012
04/20/2012

RECEIPT number #CAE200042456 $455.00 fbo Edmund G. Brown, Jr. by Erika K. Hattenhauer on 2/23/2012. (Becknal, R) (Entered: 02/23/2012)

1742

APPEAL PROCESSED to Ninth Circuit re 1740 Notice of Appeal filed by Edmund G. Brown, Jr.. Filed dates for Notice of Appeal *2/23/2012*, Complaint *5/2/1994* and Appealed Order / Judgment *1/24/2012*. Court Reporter: *D. Shepard*. *Fee Status: Paid on 2/23/2012 in the amount of $455.00* ** (Attachments: # 1 Appeal Information) (Reader, L) (Entered: 02/24/2012)

1743 NOTICE of APPEARANCE by Paul B. Gruwell on behalf of Edmund G. Brown, Jr. Attorney Gruwell, Paul B. added. (Gruwell, Paul) (Entered: 02/28/2012)

1744

ORDER signed by Judge Lawrence K. Karlton on 3/1/2012 ORDERING that Clerk is directed to pay to Chase Riveland, Valdivia Special Master, the amount of $41,749.20 in accordance with the attached statement; and a copy of this order shall be served on the financial department of this court. (cc: Financial Unit) (Attachments: # 1 Statement)(Waggoner, D) (Entered: 03/02/2012)

1745 USCA CASE NUMBER 12−15457 for 1740 Notice of Appeal filed by Edmund G. Brown, Jr. (Waggoner, D) (Entered: 03/05/2012)

1746 NOTICE of CROSS−APPEAL by Jerry Valdivia for 1738 Order denying Motion to Enforce Penal Code Section 3044 and to Modify the Permanent Injunction. (Attachments: # 1 Exhibit A, # 2 Exhibit B) (Holtz, Geoffrey) Modified on 3/6/2012 (Marciel, M). (Entered: 03/05/2012)

RECEIPT number #CAE200042734 $455.00 fbo Jerry Valdivia by Frank Busch on 3/6/2012. (Kaminski, H) (Entered: 03/06/2012)

1748

APPEAL PROCESSED to Ninth Circuit for 1746 Notice of Cross−Appeal filed by plaintiff Jerry Valdivia. Filed dates for Notice of Appeal *3/5/2012*, Complaint *5/2/1994* and Appealed Order / Judgment *1/24/2012*. Court Reporter: *D. Shepard / K. Bennett / C. Bodene / J. Anderson*. *Fee Status: Paid on 3/6/2012 in the amount of $455.00* ** (Attachments: # 1 Appeal Information) (Marciel, M) (Entered: 03/07/2012)

1749 USCA CASE NUMBER 12−15492 for 1746 Notice of Cross−Appeal filed by Jerry Valdivia. (Waggoner, D) (Entered: 03/07/2012)

1750 TWELFTH REPORT of Special Master on Status of Conditions of Remedial Order (Marciel, M) (Entered: 03/21/2012)

1751 RESPONSE by Edmund G. Brown, Jr to 1750 Order. Attorney Wolff, Samantha Derin added. (Wolff, Samantha) (Entered: 04/04/2012)

1752

ORDER signed by Judge Lawrence K. Karlton on 4/3/12 ORDERING that Clerk is directed to pay to Chase Riveland, Valdivia Special Master, the amount of $14,029.56 in accordance with the attached statement; and a copy of this order shall be served on the financial department of this court. (cc: Financial Unit) (Attachments: # 1 Statement)(Becknal, R) (Entered: 04/04/2012)

1753 REPLY by Jerry Valdivia to defendants' 1751 Response to Twelfth Report of Special Master on Status of Conditions of the Remedial Order. (Huey, Shirley) Modified on 4/9/2012 (Marciel, M). (Entered: 04/06/2012)

1754 RESPONSE by Edmund G. Brown, Jr to 1753 Reply. Attorney Jacob, Renju Palanilkumuryil added. (Jacob, Renju) (Entered: 04/10/2012)

1755

REQUEST for to Strike Defendants' Unauthorized Sur−Reply Re: Twelfth Report of the Special Master by Nghia Buckius, Mario Carillo, Phillip Castillo, Vincent Cervantes, George Cortes, Francis Culotta, Karl Horne, Scott Iroff, Walter Jones, Mustafa Khalil, Raymond Latimore, Andre Lyons, Jeffrey H Malone, Claude McDaniel, Daren Jean Miller, Nathan Morris, Edward Navarro, Steven O'Donohue, Ogwuobu Ojoir, Willie Patton, James Robinson, Troy Scurry, Mark St John, Alfred Taylor, Christopher Thomas, Jerry Valdivia. (Huey, Shirley) (Entered: 04/13/2012)

1756 ORDER signed by Judge Lawrence K. Karlton on 4/20/2012 ADOPTING recommendations of the 1750 Twelfth Report. (Marciel, M) (Entered: 04/20/2012)

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 160 of 168

05/02/2012 05/04/2012
05/08/2012
06/04/2012 06/21/2012 06/26/2012 06/28/2012 06/29/2012 07/06/2012 07/09/2012 07/18/2012 08/01/2012

1757

ORDER signed by Judge Lawrence K. Karlton on 5/1/2012 ORDERING 1233 that The Clerk is directed to pay to: Chase Riveland, Valdivia Special Master, Deer Harbor, WA, the amount of $20,210.11 in accordance with the attached statement; and a copy of this order shall be served on the Financial Department of this Court. (Attachments: # 1 Statement of Fees)(Reader, L) (Entered: 05/02/2012)

1758

STIPULATION and PROPOSED ORDER for Undisputed Attorneys' Fees and Costs for Fourth Quarter, 2011 by Nghia Buckius, Mario Carillo, Phillip Castillo, Vincent Cervantes, George Cortes, Francis Culotta, David Dixon, Russell P. Hall, John Hamre, Karl Horne, Scott Iroff, Walter Jones, Mustafa Khalil, Raymond Latimore, Andre Lyons, Jeffrey H Malone, Claude McDaniel, Daren Jean Miller, Nathan Morris, Edward Navarro, Steven O'Donohue, Ogwuobu Ojoir, Willie Patton, James Robinson, Troy Scurry, Mark St John, Gregory Strong, Christopher Thomas, Jerry Valdivia, Jimmy Watson, Hossie Welch. (Galvan, Ernest) (Entered: 05/04/2012)

1759

STIPULATION and ORDER CONFIRMING UNDISPUTED ATTORNEYS' FEES AND COSTS FOR FOURTH QUARTER, 2011 signed by Judge Lawrence K. Karlton on 5/7/12. The parties agree that $609,125.55 of fees and costs incurred during the Fourth Quarter of 2011 are undisputed. WHEREFORE, IT IS CONFIRMED that $609,125.55 plus interest accruing at the rate provided by 28 U.S.C. § 1961 is due and collectable as of forty−five days from the date of entry of this Order.(Mena−Sanchez, L) (Entered: 05/08/2012)

1760

ORDER signed by Judge Lawrence K. Karlton on 6/4/12 ORDERING that the Clerk is directed to pay Chase Riveland, Valdivia Special Master, the amount of $7,319.00 in accordance with the attached statement. (Attachments: # 1 Special Master's statement of fees and disbursements for the month of May 2012) cc: Financial Dept (Kastilahn, A) (Entered: 06/04/2012)

1761

ORDER signed by Judge Lawrence K. Karlton on 6/21/2012. Court is ADOPTING its Findings and Recommendations in full. The substantial compliance finding applies to all locations except Richard J. Donovan Correctional Facility and California Institution for Men, they remain subject to monitoring this requirement. Defendants SHALL report status of these requirements to all parties every 6 months beginning on 7/8/2012. (Marciel, M) (Entered: 06/21/2012)

1762 STIPULATION and PROPOSED ORDER for Confirming Undisputed Attorneys' Fees and Costs for First Quarter 2012 by Jerry Valdivia. (Galvan, Ernest) (Entered: 06/26/2012)

1763

STIPULATION and ORDER signed by Judge Lawrence K. Karlton on 6/27/2012 ORDERING 1762 The parties agree to settle the plaintiffs' Fourth Quarter of 2012 fees and costs for $472,004.03 of Attorneys' fees and costs. IT IS CONFIRMED that $472,004.03 plus interest accruing at the rate provided by 28:1961 is due and collectable as of 45 days from the date of entry of this Order. (Reader, L) (Entered: 06/28/2012)

1764 STIPULATION and PROPOSED ORDER for Extending Time For Motion to Compel Disputed Fees and Costs by Jerry Valdivia. (Galvan, Ernest) (Entered: 06/29/2012)

1765 STIPULATION and ORDER signed by Judge Lawrence K. Karlton on 7/6/12: Any motion regarding remaining disputed fees and costs items for calendar year 2011 shall be submitted to the Court on or before August 8, 2012. (Attachments: # 1 Statement). (Kaminski, H) (Entered: 07/06/2012)

1766 ORDER signed by Judge Lawrence K. Karlton on 7/6/2012 DIRECTING the Clerk of Court to pay Chase Riveland, Valdivia Special Master, the amount of $4,639.00 in accordance with the attached statement. (cc: Financial Sacramento) (Attachments: # 1 Statement) (Michel, G) (Entered: 07/09/2012)

1767 ORDER signed by Judge Lawrence K. Karlton on 7/1712 ORDERING that the Thirteenth Report of the Special Master shall be filed with the Court on or before 11/15/2012. (Mena−Sanchez, L) (Entered: 07/18/2012)

1768 STIPULATION and PROPOSED ORDER for Confirming Payment of Remaining Attorney's Fees and Costs for 2011 by Jerry Valdivia. (Galvan, Ernest) (Entered:

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 161 of 168

08/03/2012 08/03/2012 09/06/2012 09/06/2012
09/11/2012 10/02/2012 10/03/2012 10/30/2012 10/30/2012 11/01/2012 11/06/2012 12/04/2012
12/04/2012

08/01/2012)

1769 STIPULATION and ORDER signed by Judge Lawrence K. Karlton on 8/2/2012 CONFIRMING that $240,000.00, plus interest, is due and collectable within 45 days. All disputes regarding 2011 fees and costs, other than the dispute over the Proposition 9 fees and costs, are resolved. (Michel, G) (Entered: 08/03/2012)

1770 ORDER signed by Judge Lawrence K. Karlton on 8/2/2012 DIRECTING the Clerk of Court to pay Chase Riveland, Valdivia Special Master, the amount of $20,278.64 in accordance with the attached statement. (cc: Financial Sacramento) (Attachments: # 1 Statement) (Michel, G) (Entered: 08/03/2012)

1771 ORDER signed by Judge Lawrence K. Karlton on 9/5/12 ORDERING that the Thirteenth Report of the Special Master shall be filed with the Court on or before 12/17/12. (Becknal, R) (Entered: 09/06/2012)

1772

ORDER signed by Judge Lawrence K. Karlton on 9/5/12 ORDERING the Clerk is directed to pay to Chase Riveland, Valdivia Special Master, the amount of $23,898.12 in accordance with the attached statement; and a copy of this order shall be served on the financial department of this court. (Attachments: # 1 statement) (cc: Financial Sacramento)(Becknal, R) (Entered: 09/06/2012)

1773 ORDER signed by Judge Lawrence K. Karlton on 9/10/2012 DIRECTING the Clerk of Court to pay Chase Riveland, Valdivia Special Master, the amount of $23,897.62 in accordance with the attached statement. (cc: Financial Sacramento) (Attachments: # 1 Statement) (Michel, G) (Entered: 09/11/2012)

1774 ORDER signed by Judge Lawrence K. Karlton on 10/01/12 DIRECTING the Clerk of Court to pay Chase Riveland, Valdivia Special Master, the amount of $18,668.17 in accordance with the attached statement (Attachments: # 1 Financial Statement) (cc: Financial) (Benson, A.) (Entered: 10/02/2012)

1775 NOTICE of Change in Counsel by Edmund G. Brown, Jr. (Mello, Paul) (Entered: 10/03/2012)

1776 DESIGNATION OF COUNSEL by All Plaintiffs. (Galvan, Ernest) Modified on 10/31/2012 (Meuleman, A). (Entered: 10/30/2012)

1777 STIPULATION and PROPOSED ORDER for Confirming Undisputed Attorneys' Fees and Costs for Second Quarter 2012 by Jerry Valdivia. (Attachments: # 1 Exhibit A)(Walczak, Kenneth) (Entered: 10/30/2012)

1778 STIPULATION and ORDER signed by Judge Lawrence K. Karlton on 10/31/12 CONFIRMING undisputed attorneys' fees and costs for Second Quarter, 2012. (Attachments: # 1 Exhibit A)(Meuleman, A) (Entered: 11/01/2012)

1779 ORDER signed by Judge Lawrence K. Karlton on 11/5/2012 DIRECTING the Clerk of Court to pay Chase Riveland, Valdivia Special Master, the amount of $20,119.43 in accordance with the attached statement. (cc: Financial Sacramento) (Attachments: # 1 Statement) (Michel, G) (Entered: 11/06/2012)

1780

ORDER signed by Judge Lawrence K. Karlton on 12/3/2012 ORDERING that the Clerk is directed to pay to Chase Riveland, Valdivia Special Master, the amount of $52,395.00 in accordance with the attached statement. A copy of this order shall be served on the financial department of this Court. (cc: Financial) (Attachments: # 1 Statement for Fees) (Zignago, K.) (Entered: 12/04/2012)

1781

AMENDED ORDER 1780 signed by Judge Lawrence K. Karlton on 12/4/2012. Pursuant Court's 8/18/2005 Order of Reference, the Special Master has submitted a bill for payment of services provided during month of November 2012. Good cause appearing, it is ORDERED that: Clerk be directed to pay to: Chase Riveland (Valdivia Special Master) at 5714 Deer Harbor Road, Box 367 in Deer Harbor, WA 98243 the amount of $50,170.00 in accordance with attachedstatement. A copy of Order shall be served on Financial Department. (Attachments: # 1 Special Master Statement for Fees and Disbursements) [cc: CFS] (Marciel, M) (Entered: 12/04/2012)

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 162 of 168

12/17/2012
12/19/2012 12/21/2012 01/02/2013 01/03/2013 01/04/2013 01/10/2013 01/11/2013 01/25/2013 01/25/2013 01/25/2013 01/25/2013 01/25/2013
01/30/2013

1782

ORDER signed by Judge Lawrence K. Karlton on 12/17/12 ORDERING that Within thirty (30) days of the issuance of this order defendants shall deposit with the Clerk of the Court a sixth interim payment of costs in the amount of $500,000.00 which amount shall be invested in the interest−bearing account previously opened for this action; and The Clerk is directed to serve a copy of this order on the Financial Department of this court.(Mena−Sanchez, L) (Entered: 12/17/2012)

1783 THIRTEENTH REPORT of the Special Master on status of conditions of Remedial Order (Marciel, M) (Entered: 12/19/2012)

1784 STIPULATION and PROPOSED ORDER for Extension of Time to Respond to Special Master's Thirteenth Report re 1783 Order by Jerry Valdivia. (Walczak, Kenneth) (Entered: 12/21/2012)

1785 STIPULATION and ORDER signed by Judge Lawrence K. Karlton on 1/2/2013 GRANTING 1784 Stipulation and Proposed Order; Special Master's Thirteenth Report shall be final unless a party files written objections with the Court no later than 1/25/2013. (Waggoner, D) (Entered: 01/02/2013)

1786 STIPULATION and PROPOSED ORDER confirming undisputed attorneys' fees and costs for Third Quarter, 2012 by Jerry Valdivia. (Attachments: # 1 Exhibit A) (Walczak, Kenneth) Modified on 1/11/2013 (Marciel, M) (Entered: 01/03/2013)

1787 ORDER signed by Judge Lawrence K. Karlton on 1/3/13: The Clerk is directed to pay to Chase Riveland the amount of $18,745.00 in accordance with the attached statement (Attachments: # 1 Statement)(Kaminski, H) (Entered: 01/04/2013)

1788

AMENDED ORDER signed by Judge Lawrence K. Karlton on 1/10/13: The Clerk is directed to pay to Chase Riveland the amount of $18,705.00 in accordance with the attached statement. A copy of this order shall be served on the financial department of this court. (Attachments: # 1 Statement). (Kaminski, H) (Entered: 01/10/2013)

1789

STIPULATION and ORDER 1786 confirming undisputed attorneys' fees and costs for Third Quarter 2012 signed by Judge Lawrence K. Karlton on 1/11/2013. It is CONFIRMED that $575,339.52 plus interest accruing at rate provided by 28 U.S.C. § 1961 is due and collectable as of 45 days from date of entry of this Order. (Attachments: # 1 Exhibit A) (Marciel, M) (Entered: 01/11/2013)

1790 OBJECTIONS by Defendant Edmund G. Brown, Jr., to 1783 Thirteenth REport of the Special Master (Wolff, Samantha) Modified on 1/28/2013 (Kastilahn, A). (Entered: 01/25/2013)

1791 DECLARATION of Jennifer Shaffer re 1790 Objections. (Wolff, Samantha) (Entered: 01/25/2013)

1792 MOTION TO EXCEED PAGE LIMIT by Jerry Valdivia. (Walczak, Kenneth) (Entered: 01/25/2013)

1793 MOTION TO FILE DOCUMENTS UNDER SEAL by Jerry Valdivia. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Galvan, Ernest) (Entered: 01/25/2013)

1794

OBJECTIONS by Plaintiff Jerry Valdivia to 1783 Thirteenth Report of the Special Master. (Attachments: # 1 Proposed Order Adopting in Part, Declining to Adopt in Part Special Master's 13th Report; Order for Continued Supervision of Parole Proceedings, # 2 Declaration of Kenneth M. Walczak, # 3 Exhibit A to Walczak Decl, # 4 Exhibit B to Walczak Decl, # 5 Exhibit C−1 through C−23 to Walczak Decl, # 6 Exhibit D to Walczak Decl, # 7 Exhibit E to Walczak Decl, # 8 Exhibit F to Walczak Decl, # 9 Exhibit G to Walczak Decl, # 10 Exhibit H to Walczak Decl, # 11 Exhibit I to Walczak Decl, # 12 Exhibit J to Walczak Decl, # 13 Exhibit K to Walczak Decl, # 14 Exhibit L to Walczak Decl, # 15 Exhibit M to Walczak Decl, # 16 Declaration of Ernest Galvan, with Exhibits A−G, # 17 Declaration of Aaron J. Fischer)(Walczak, Kenneth) Modified on 1/28/2013 (Kastilahn, A). (Entered: 01/25/2013)

1795 ORDER signed by Judge Lawrence K. Karlton on 1/29/13 ORDERING that Plaintiff's APPLICATION to exceed page limit 1792 is GRANTED. Plaintiffs may

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 163 of 168

01/31/2013 02/04/2013 02/05/2013
02/28/2013 02/28/2013 02/28/2013 02/28/2013 02/28/2013
02/28/2013 02/28/2013 02/28/2013 02/28/2013 02/28/2013 02/28/2013

submit Objections not to exceed sixty (60) pages. (Mena−Sanchez, L) (Entered: 01/30/2013)

1796 STIPULATION and PROPOSED ORDER for Extending Time To Respond To Objections Special Masters Thirteenth Report by Edmund G. Brown, Jr. (Wolff, Samantha) (Entered: 01/31/2013)

1797 STIPULATION and ORDER signed by Judge Lawrence K. Karlton on 2/4/13 ORDERING that the parties shall have until 2/28/13 to respond to objections to the Special Master's Thirteenth Report. (Manzer, C) (Entered: 02/04/2013)

1798

ORDER signed by Judge Lawrence K. Karlton on 2/4/13 ORDERING that the Clerk is directed to pay Chase Riveland, Valdivia Special Master, the amount of $4,100 in accordance with the attached statement. A copy of this order shall be served on the financial department of this court. (Attachments: # 1 Statement) (cc: financial department) (Kastilahn, A) (Entered: 02/05/2013)

1799 Defendant's REPLY to 1794 Objections to thirteenth Report of the Special Master on the Status of Conditions of the remedial order. Attorney Oliver Thompson, Megan added. (Oliver Thompson, Megan) Modified on 3/1/2013 (Mena−Sanchez, L). (Entered: 02/28/2013)

1800 DECLARATION of Megan Oliver Thompson re 1799 Opposition. (Attachments: # 1 Exhibit A (Part 1), # 2 Exhibit A (Part 2), # 3 Exhibit A (Part 3), # 4 Exhibit B)(Oliver Thompson, Megan) (Entered: 02/28/2013)

1801 EXHIBIT C (1−7) to Declaration of Megan Oliver Thompson by Edmund G. Brown, Jr re 1800 Declaration. (Attachments: # 1 Exhibit C (Part 2), # 2 Exhibit C (Part 3), # 3 Exhibit C (Part 4), # 4 Exhibit C (Part 5), # 5 Exhibit C (Part 6), # 6 Exhibit C (Part 7))(Oliver Thompson, Megan) (Entered: 02/28/2013)

1802 EXHIBIT C (8−12) to Declaration of Megan Oliver Thompson by Edmund G. Brown, Jr re 1800 Declaration. (Attachments: # 1 Exhibit C (Part 9), # 2 Exhibit C (Part 10), # 3 Exhibit C (Part 11), # 4 Exhibit C (Part 12))(Oliver Thompson, Megan) (Entered: 02/28/2013)

1803

RESPONSE by Jerry Valdivia to Defendants' OBJECTIONS 1790 . (Attachments: # 1 Declaration of Kenneth M. Walczak, # 2 Exhibit A to Walczak Declaration, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Evidentiary Objections to Shaffer Declaration)(Walczak, Kenneth) Modified on 3/1/2013 (Mena−Sanchez, L). (Entered: 02/28/2013)

1804 EXHIBIT C (13−17) to Declaration of Megan Oliver Thompson by Edmund G. Brown, Jr re 1800 Declaration. (Attachments: # 1 Exhibit C (Part 14), # 2 Exhibit C (Part 15), # 3 Exhibit C (Part 16), # 4 Exhibit C (Part 17))(Oliver Thompson, Megan) (Entered: 02/28/2013)

1805 EXHIBIT D and E (1−4) by Edmund G. Brown, Jr re 1800 Declaration. (Attachments: # 1 Exhibit E (Part 1), # 2 Exhibit E (Part 2), # 3 Exhibit E (Part 3), # 4 Exhibit E (Part 4))(Oliver Thompson, Megan) (Entered: 02/28/2013)

1806 EXHIBIT E Part 5 (A−E) to Declaration of Megan Oliver Thompson by Edmund G. Brown, Jr re 1800 Declaration. (Attachments: # 1 Exhibit E (Part 5b), # 2 Exhibit E (Part 5c), # 3 Exhibit E (Part 5d), # 4 Exhibit E (Part 5e))(Oliver Thompson, Megan) (Entered: 02/28/2013)

1807 EXHIBIT E (6−10) to Declaration of Megan Oliver Thompson by Edmund G. Brown, Jr re 1800 Declaration. (Attachments: # 1 Exhibit E (Part 7), # 2 Exhibit E (Part 8), # 3 Exhibit E (Part 9), # 4 Exhibit E (Part 10))(Oliver Thompson, Megan) (Entered: 02/28/2013)

1808 EXHIBIT E (11−15) to Declaration of Megan Oliver Thompson by Edmund G. Brown, Jr re 1800 Declaration. (Attachments: # 1 Exhibit E (Part 12), # 2 Exhibit E (Part 13), # 3 Exhibit E (Part 14), # 4 Exhibit E (Part 15))(Oliver Thompson, Megan) (Entered: 02/28/2013)

1809 EXHIBIT E (16−21) to Declaration of Megan Oliver Thompson by Edmund G. Brown, Jr re 1800 Declaration. (Attachments: # 1 Exhibit E (Part 17), # 2 Exhibit E

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 164 of 168

02/28/2013
02/28/2013 02/28/2013 02/28/2013 03/05/2013
03/20/2013 03/27/2013 03/29/2013 04/01/2013
04/02/2013
04/23/2013
04/29/2013 05/06/2013
05/06/2013

(Part 18), # 3 Exhibit E (Part 19), # 4 Exhibit E (Part 20), # 5 Exhibit E (Part 21))(Oliver Thompson, Megan) (Entered: 02/28/2013)

1810

EXHIBIT F (1−8) to Declaration of Megan Oliver Thompson by Edmund G. Brown, Jr re 1800 Declaration. (Attachments: # 1 Exhibit F (Part 2), # 2 Exhibit F (Part 3), # 3 Exhibit F (Part 4), # 4 Exhibit F (Part 5), # 5 Exhibit F (Part 6), # 6 Exhibit F (Part 7), # 7 Exhibit F (Part 8))(Oliver Thompson, Megan) (Entered: 02/28/2013)

1811 EXHIBIT A (Part 1a) to Declaration of Megan Oliver Thompson by Edmund G. Brown, Jr re 1800 Declaration. (Oliver Thompson, Megan) (Entered: 02/28/2013)

1812 PROPOSED ORDER re Adopting in Part Special Master's Thirteenth Report on the Status Of Conditions of the Remedial Order re 1799 Opposition by Edmund G. Brown, Jr. (Oliver Thompson, Megan) (Entered: 02/28/2013)

1813 NOTICE of Request to Seal Document(s) pursuant to L.R. 141 by Edmund G. Brown, Jr. (Oliver Thompson, Megan) (Entered: 02/28/2013)

1814

ORDER signed by Judge Lawrence K. Karlton on 3/4/13 ORDERING that Clerk is directed to pay to Chase Riveland, Valdivia Special Master, the amount of $4,270.00 in accordance with the attached statement; and a copy of this order shall be served on the financial department of this court. (Attachments: # 1 Financial Statement)(cc: Financial Department).(Becknal, R) (Entered: 03/05/2013)

1815 REQUEST for leave to file supplemental declaration by Jerry Valdivia to 1803 Response. (Attachments: # 1 Supplemental Declaration of Kenneth M. Walczak, with Exhibits A−B)(Walczak, Kenneth) Modified on 3/21/2013 (Meuleman, A). (Entered: 03/20/2013)

1816 STIPULATION and PROPOSED ORDER for Undisputed Attorneys' Fees and Costs for Quarter 4, 2012 by Jerry Valdivia. (Walczak, Kenneth) (Entered: 03/27/2013)

1817 OPPOSITION by Defendant Edmund G. Brown, Jr to 1815 Request. (Oliver Thompson, Megan) (Entered: 03/29/2013)

1818

STIPULATION and ORDER re UNDISPUTED ATTORNEYS FEES AND COSTS signed by Judge Lawrence K. Karlton on 3/29/13: IT IS CONFIRMED that $382,955.81 plus interest accruing at the rate provided by 28 U.S.C. § 1961 is due and collectable as of forty−five days from the date of entry of this Order. (Kaminski, H) (Entered: 04/01/2013)

1819

ORDER signed by Judge Lawrence K. Karlton on 4/1/13 DIRECTING the Clerk to pay to Chase Riveland the amount of $5,474.00 in accordance with the attached statement; and that a copy of this order shall be SERVED on the financial department of this court. (cc: Financial) (Attachments: # 1 Statement for Fees and Disbursements)(Meuleman, A) (Entered: 04/02/2013)

1820

REQUEST for Leave to File Second Supplemental Declaration of Kenneth M. Walczak by Jerry Valdivia in support of 1803 Response. (Attachments: # 1 Second Supplemental Declaration of Kenneth M. Walczak, # 2 Exhibit A to Walczak Declaration, # 3 Exhibit B to Walczak Declaration)(Walczak, Kenneth) Modified on 4/24/2013 (Kaminski, H). (Entered: 04/23/2013)

1821 OPPOSITION by Edmund G. Brown, Jr to 1820 MOTION. (Mello, Paul) (Entered: 04/29/2013)

1822

ORDER signed by Judge Lawrence K. Karlton on 5/3/13 ORDERING the Clerk to pay to Chase Riveland the amount of $25,486.05 in accordance with the attached statement; and a copy of this order shall be served on the financial department of this court. (cc: Financial). (Attachments: # 1 Statement)(Meuleman, A) (Entered: 05/06/2013)

1823 ORDER signed by Judge Lawrence K. Karlton on 5/6/13: Within twenty−one (21) days of entry of this order, the parties are DIRECTED to file brief. The Special Master is DIRECTED to stay filing the Fourteenth Report on the Status of Conditions of the Remedial Order, pending further order of the court. (Kaminski,

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 165 of 168

05/28/2013 05/28/2013 05/28/2013 05/28/2013 05/28/2013 05/28/2013
06/10/2013 06/11/2013 06/11/2013 06/11/2013 06/11/2013
06/11/2013 06/11/2013 06/11/2013 06/11/2013 06/11/2013 06/13/2013

H) (Entered: 05/06/2013)

1824 RESPONSE by Edmund G. Brown, Jr to 1823 Order,. (Wolff, Samantha) (Entered: 05/28/2013)

1825 DECLARATION of Guillermo Viera Rosa. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Wolff, Samantha) (Entered: 05/28/2013)

1826 DECLARATION of Samantha Wolff. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Wolff, Samantha) (Entered: 05/28/2013)

1827 DECLARATION of Rhonda Skipper Dotta. (Wolff, Samantha) (Entered: 05/28/2013)

1828 REQUEST for JUDICIAL NOTICE by Edmund G. Brown, Jr. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Wolff, Samantha) (Entered: 05/28/2013)

1829

RESPONSE by Jerry Valdivia to 1823 Order,. (Attachments: # 1 Declaration of Ernest Galvan in Support of Plaintiffs' Brief in Response to Court's May 6, 2013 Order Re: Realignment, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11, # 13 Exhibit 12, # 14 Exhibit 13, # 15 Exhibit 14, # 16 Exhibit 15, # 17 Exhibit 16, # 18 Exhibit 17, # 19 Exhibit 18, # 20 Exhibit 19, # 21 Exhibit 20, # 22 Exhibit 21, # 23 Exhibit 22, # 24 Exhibit 23, # 25 Exhibit 24, # 26 Exhibit 25, # 27 Exhibit 26, # 28 Exhibit 27, # 29 Exhibit 28, # 30 Exhibit 29, # 31 Proposed Order Regarding Status of Valdivia Permanent Injunction During Transition to Realigned Final Parole Revocation Hearings)(Galvan, Ernest) (Entered: 05/28/2013)

1830 ORDER signed by Judge Lawrence K. Karlton on 6/7/13 ORDERING that the Clerk pay Special Master the amount of $13,291.93. (cc: Financial) (Attachments: # 1 Statement) (Manzer, C) (Entered: 06/10/2013)

1831 STIPULATION and PROPOSED ORDER for Confirming Undisputed Attorneys' Fees and Costs for First Quarter, 2013 by Jerry Valdivia. (Galvan, Ernest) (Entered: 06/11/2013)

1832 NOTICE of Request to Seal Document(s) pursuant to L.R. 141 by Edmund G. Brown, Jr. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Wolff, Samantha) (Entered: 06/11/2013)

1833 REPLY by Edmund G. Brown, Jr re 1829 Response to 1823 Order (Oliver Thompson, Megan) Modified on 6/12/2013 (Donati, J). (Entered: 06/11/2013)

1834

DECLARATION of GUILLERMO VIERA ROSA re 1833 Reply. (Attachments: # 1 Exhibit A, # 2Exhibit B, # 3Exhibit C, # 4Exhibit D, # 5Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10Exhibit J, # 11Exhibit K, # 12Exhibit L)(Oliver Thompson, Megan) Modified on 6/12/2013 (Donati, J). (Entered: 06/11/2013)

1835 DECLARATION of RHONDA SKIPPER−DOTTA re 1833 Reply. (Attachments: # 1 Exhibit A)(Oliver Thompson, Megan) (Entered: 06/11/2013)

1836 REPLY by Jerry Valdivia re 1824 Response. (Attachments: # 1 Declaration, # 2 Exhibit 30−32, # 3 Exhibit 33−34, # 4 Declaration)(Galvan, Ernest) Modified on 6/12/2013 (Donati, J). (Entered: 06/11/2013)

1837 NOTICE of Request to Seal Documents pursuant to L.R. 141 by Jerry Valdivia. (Galvan, Ernest) (Entered: 06/11/2013)

1838 DECLARATION of DANIEL CARVO re 1833 Reply. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Oliver Thompson, Megan) (Entered: 06/11/2013)

1839 PROPOSED ORDER re re mootness of Valdivia remedy re 1833 Reply by Edmund G. Brown, Jr. (Oliver Thompson, Megan) (Entered: 06/11/2013)

1840 STIPULATION and ORDER signed by Judge Lawrence K. Karlton on 6/12/2013 ORDERING 1831 that $327,447.81 plus interest accruing at the rate provided by 28:1961 is due and collectable as of 45 days from the date of entry of this Order.

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 166 of 168

06/27/2013
06/27/2013
07/02/2013 07/03/2013 07/03/2013
07/08/2013 07/11/2013 07/11/2013 07/19/2013 07/29/2013 08/01/2013

(Reader, L) (Entered: 06/13/2013)

1841

SUPPLEMENAL REPLY to 1824 Response to 1823 Order by Nghia Buckius, Mario Carillo, Phillip Castillo, Vincent Cervantes, George Cortes, Francis Culotta, David Dixon, Russell P. Hall, John Hamre, Karl Horne, Scott Iroff, Walter Jones, Mustafa Khalil, Raymond Latimore, Andre Lyons, Jeffrey H Malone, Claude McDaniel, Daren Jean Miller, Nathan Morris, Edward Navarro, Steven O'Donohue, Ogwuobu Ojoir, Willie Patton, James Robinson, Troy Scurry, Mark St John, Gregory Strong, Alfred Taylor, Christopher Thomas, Jerry Valdivia, Jimmy Watson, Hossie Welch, Curtis Williams, Steven G Williams, Alfred Yancy. (Holtz, Geoffrey) Modified on 6/28/2013 (Michel, G). (Entered: 06/27/2013)

1842

REQUEST for JUDICIAL NOTICE re [1841 Supplemental Reply by Nghia Buckius, Mario Carillo, Phillip Castillo, Vincent Cervantes, George Cortes, Francis Culotta, David Dixon, Russell P. Hall, John Hamre, Karl Horne, Scott Iroff, Walter Jones, Mustafa Khalil, Raymond Latimore, Andre Lyons, Jeffrey H Malone, Claude McDaniel, Daren Jean Miller, Nathan Morris, Edward Navarro, Steven O'Donohue, Ogwuobu Ojoir, Willie Patton, James Robinson, Troy Scurry, Mark St John, Gregory Strong, Alfred Taylor, Christopher Thomas, Jimmy Watson, Hossie Welch, Curtis Williams, Steven G Williams, Alfred Yancy. (Attachments: # 1 Exhibit A, # 2 Exhibit B) (Holtz, Geoffrey) Modified on 6/28/2013 (Michel, G). (Entered: 06/27/2013)

1843

ORDER signed by Judge Lawrence K. Karlton on 7/1/13. The Clerk is directed to pay to: Chase Riveland Valdivia Special Master 5714 Deer Harbor Road, Box 367 Deer Harbor, WA 98243 the amount of $8,850.91 in accordance with the attached statement; A copy of this order was served on the financial department of this court. (Attachments: # 1.(Mena−Sanchez, L) (Entered: 07/02/2013)

1844

AMENDED ORDER signed by Judge Lawrence K. Karlton on 7/3/13 ORDERING the Clerk to pay to Chase Riveland, Valdivia Special Master, the amount of $8,830.91 in accordance with the attached statement; and serve a copy of this order on financial. (cc: Financial) (Attachments: # 1 Statement) (Kastilahn, A) Modified on 7/5/2013 (Kastilahn, A). (Entered: 07/03/2013)

1845

ORDER signed by Judge Lawrence K. Karlton on 7/2/2013 ORDERING The court FINDS that this case is MOOT. ACCORDINGLY the court DECLINES to adopt the Thirteenth Report of the Special Master on the Status of Conditions of the Remedial Order 1783 A forthcoming order will address the parties' outstanding requests to seal documents. The parties and the Special Master are DIRECTED to file final motions, if any, for fees and costs within twenty eight 28 days of the date of entry of this order. Upon resolution of these motions, the court will decertify the class and dismiss this case. (Reader, L) (Entered: 07/03/2013)

1846 ORDER signed by Judge Lawrence K. Karlton on 7/3/13 GRANTING 1837 , 1813 , 1832 and 1793 Requests to Seal. Counsel is directed to send approved sealed documents to ApprovedSealed@caed.uscourts.gov.(Dillon, M) (Entered: 07/08/2013)

1847 SEALED EVENT (Attachments: # 1 Part 2) (Donati, J) (Entered: 07/11/2013)

1848 SEALED EVENT (Attachments: # 1 Part 2, # 2 Part 3, # 3 Part 4, # 4 Part 5, # 5 Part 6) (Donati, J) (Entered: 07/11/2013)

1849 MOTION for RECONSIDERATION by plaintiffs of 7/3/2013 1845 Order. Motion Hearing is SET for 8/26/2013 at 10:00 AM in Courtroom 4 (LKK) before Judge Lawrence K. Karlton. (Galvan, Ernest) Modified on 7/22/2013 (Mena−Sanchez, L). (Entered: 07/19/2013)

1850 STIPULATION and PROPOSED ORDER for Payment of Undisputed Attorneys' Fees and Costs by Jerry Valdivia. (Galvan, Ernest) (Entered: 07/29/2013)

1851

ORDER signed by Judge Lawrence K. Karlton on 8/1/2013. Clerk directed to pay Chase Riveland, Valdivia Special Master, the amount of $4890.00 with attached Statement. A copy of this Order shall be served on Court's Financial Department. (Attachments: # 1 Statement of Fees and Disbursements for period of 7/1/2013 − 7/29/2013) [cc: CFS] (Marciel, M) (Entered: 08/01/2013)

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 167 of 168

08/02/2013 08/12/2013 08/12/2013 08/19/2013 08/21/2013 08/22/2013
09/04/2013
09/11/2013 09/13/2013 09/13/2013 11/18/2013 11/21/2013 11/26/2013 12/04/2013 12/17/2013 01/13/2014

1852 STIPULATION and ORDER signed by Judge Lawrence K. Karlton on 8/1/13: IT IS CONFIRMED that $1,243,077.20 plus interest accruing at the rate provided by 28 U.S.C. § 1961 is due and collectable as of forty−five days from the date of entry of this Order. (Attachments: # 1 Exhibit)(Kaminski, H) (Entered: 08/02/2013)

1853 OPPOSITION by Edmund G. Brown, Jr to 1849 MOTION for RECONSIDERATION re 1845 Order. (Wolff, Samantha) (Entered: 08/12/2013)

1854 DECLARATION of Samantha Wolff in OPPOSITION TO 1849 MOTION for RECONSIDERATION re 1845 Order. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Wolff, Samantha) (Entered: 08/12/2013)

1855 Plaintiffs' REPLY in SUPPORT of 1849 MOTION for RECONSIDERATION re 1845 Order. (Galvan, Ernest) Modified on 8/21/2013 (Mena−Sanchez, L). (Entered: 08/19/2013)

1856 ORDER signed by Judge Lawrence K. Karlton on 8/20/13 VACATING hearing on 1849 MOTION for RECONSIDERATION. (Meuleman, A) (Entered: 08/21/2013)

1857

TRANSMITTED RECORD on APPEAL to USCA # *12−15457* re 1746 Notice of Appeal. * Volumes of Files: 38 Paper Documents: 1 to 1143 Volumes of Expandable Folders: 23 * *Electronic Documents: 1144 to 1856* (Waggoner, D) (Entered: 08/22/2013)

1858

ORDER signed by Judge Lawrence K. Karlton on 9/3/13 ORDERING that the Clerk is directed to pay Chase Riveland, Valdivia Special Master the amount of $2,470.00 in accordance with the attached statement; and a copy of this order shall be served on the financial department of this court. (Attachments: # 1 Statement for services rendered for the month of August 2013) (cc: Financial Dept) (Kastilahn, A) (Entered: 09/04/2013)

1859 ORDER signed by Judge Lawrence K. Karlton on 9/10/2013 GRANTING in part and DENYING in part plaintiffs' 1849 Motion for Reconsideration of 7/3/2013 1845 Order. (Marciel, M) (Entered: 09/11/2013)

1860 (DISREGARD − ATTY REFILED) RESPONSE by Edmund G. Brown, Jr to 1859 Order on Motion for Reconsideration. (Attachments: # 1 Declaration of Rhonda Skipper−Dotta in Compliance With Court's September 11, 2013 Order)(Wolff, Samantha) Modified on 9/16/2013 (Meuleman, A). (Entered: 09/13/2013)

1861 RESPONSE by Edmund G. Brown, Jr to 1859 Order on Motion for Reconsideration. (Attachments: # 1 Declaration of Rhonda Skipper−Dotta in Compliance With Court's September 11, 2013 Order)(Wolff, Samantha) (Entered: 09/13/2013)

1862 DECLARATION of Special Master Chase Riveland concerning Fees and Expenses. (Marciel, M) (Entered: 11/19/2013)

1863 ORDER signed by Judge Lawrence K. Karlton on 11/20/2013 DECERTIFYING the plaintiff class as certified by 76 Order; TERMINATING 1034 Stipulated Order for Permanent Injunctive Relief; DIRECTING the Clerk of Court to close this case. CASE CLOSED. (Michel, G) (Entered: 11/21/2013)

1864 STIPULATION and PROPOSED ORDER for Confirming Undisputed Final Attorneys' Fees and Costs by Jerry Valdivia. (Galvan, Ernest) (Entered: 11/26/2013)

1865 STIPULATION and ORDER signed by Judge Lawrence K. Karlton on 12/4/13 ORDERING that it is CONFIRMED that $72,500 plus interest accruing at the rate provided by 28 U.S.C. § 1961 is due and collectable as of 45 days from the date of entry of this order. (Manzer, C) (Entered: 12/04/2013)

1866 USCA ORDER: In light of the district court's November 20, 2013 order, appeals are now moot and are hereby DISMISSED. (Kaminski, H). (Entered: 12/18/2013)

1867 PROPOSED ORDER re Return of Unused Special Master Funds to Defendant California Department of Corrections and Rehabilitation by Edmund G. Brown, Jr.

Case: 2:94-cv-671 As of: 07/01/2014 08:06 AM PDT 168 of 168

02/11/2014 04/23/2014

(Wolff, Samantha) (Entered: 01/13/2014)

1868

ORDER signed by Judge Lawrence K. Karlton on 2/7/2014 ORDERING that the court hereby DIRECTS the Clerk of the Court to return all funds remaining in the special account, plus interest, to defendants. The Clerk shall make the check payable to "California Department of Corrections and Rehabilitation" and send it to California Department of Corrections and Rehabilitation, Attn: Jaime Corvera, Associate Director (A). (cc: Financial) (Zignago, K.) (Entered: 02/11/2014)

APPEAL RECORD RETURNED re 1740 Notice of Appeal: Paper Documents: 1 to 1143 (CV001−CV038), 36 expandable folders (EX001−EX023, EL001−EL013) received 4/23/2014, routed to file room. (Michel, G) (Entered: 04/23/2014)

 
 .
,

1 BINGHAM McCUTCHEN KAREN KENNARD -141925
2 KRISTEN A. PALUMBO - 215857 Three Embarcadero Center
3 San Francisco; California 94111-4067 Telephone: (415) 393-2000
4
PRlSON LAW OFFICE 5 DONALD SPECTER- 83925
General Delivery 6 San Quentin, California 94964
Telepbone: (415) 457-9144
7
8
STEPHEN 1. PERRELLO, JR. - 56288 9 P.O. Box 880738
San Diego, California 92618 10 Telephone: (858) 277-5900

RECEIVED
NOV 1 9 2003
ROSEN BIEN &ASARO
ROSEN, BIEN & ASARO, LLP MICHAEL W. BIEN - 096891 ERNEST GALVAN - 196065 MARl L. WILLITS - 209612
155 Montgomery Street~ 8th Floor
San FrancIsco, CalifornIa 94104 Telephone (415) 433-6830
ALEX LANDON - 50957 2442 Fourth Avenue San Diego, California 92101 Telephone: (619) 232-6022

11

12 Attorneys for Plaintiffs

13

14

UNITED STATES DISTRlCT COURT

15

EASTERN DISTRlCT OF CALIFORNIA

16

17 JERRY VALDIVIA, et aI.,

No. Civ. S-94-0671 LKKlGGH

18 19
20 v.

Plaintiffs,

STIPULATED ORDER FOR PERMANENT INJUNCTIVE RELIEF

21 ARNOLD SCHWARZENEGGER, et aI.,

Defendants.

28

1 I. INTRODUCTION

2

1. This action was filed on May 2, 1994. Plaintiffs, on behalf of themselves

3 and the class they represent, challenged the constitutionality of parole revocation

4 procedures conducted by the California Board of Prison Terms ("BPT") and the

5 California Department of Corrections ("CDC").

6

2. The Court certified this case as a class action by order dated December 1,

7 1994. The Plaintiff class consists of the following persons: (1) California parolees who 8 are at large; (2) California parolees in custody as alleged parole violators, and who are 9 awaiting revocation of their state parole; and (3) California parolees who are in custody,

10 having been found in violation of parole and sentenced to prison custody.

11

3. The Defendants are state officials responsible for the policies and

12 procedures by which California conducts parole revocation proceedings.

13

4. On June 13,2002, this Court granted partial summary judgment in favor of

14 Plaintiffs, holding that California's unitary parole revocation system violates the due

15 process rights of the Plaintiff class under Morrissey v. Brewer, 408 U.S. 481 (1972),

16 Gagnon v. Scarpelli, 411 U.S. 778 (1973), and related authority. The Court held that

17 California's parole revocation system violated the due process clause of the Fourteenth

18 Amendment by "allowing a delay of up to forty-five days or more before providing the

19 parolee an opportunity to be heard regarding the reliability of the probable cause

20 determination." Valdivia v. Davis, 206 F. Supp. 2d 1068,1078 (E.D. Cal. 2002).

21

5. The parties stipulate that this is not a "civil case with respect to prison

22 conditions," as those terms are defined and applied in the Prison Litigation Reform Act

23 ("PLRA"), 18 U.S.C. § 3626, and that therefore this Order is not governed by the

24 PLRA.

25

6. The parties hereby stipulate that the Court shall ADJUDGE, DECLARE,

26 AND DECREE as follows:

27

28

STIPULATED ORDER FOR PERMANENT INJUNCTIVE RELIEF,

1

Civ. S-94-0671 LKKJGGH

1 II. PARTIES

2

7. The Plaintiff class consists of the following persons: (l) California

3 parolees who are at large; (2) California parolees in custody as alleged parole violators,

4 and who are awaiting revocation of their state parole; and (3) California parolees who

5 are in custody, having been found in violation of parole and sentenced to prison

6 custody.

7

8. The Defendants are state officials responsible for the policies and

8 procedures by which California conducts parole revocation proceedings. Defendant

9 Arnold Schwarzenegger is Governor of the State of California and Chief Executive of

10 the state government. Defendant Roderick Q. Hickman is the Secretary of the

11 California Youth and Adult Correctional Agency. Defendant Edward S. Alameida, Jr.,

12 is Director of the California Department of Corrections. Defendant Richard Rimmer is

13 Deputy Director of the California Department of Corrections, Parole and Community

14 Services Division ("P&CSD"). Defendant Carol A. Daly is a Commissioner and Chair

15 of the Board of Prison Terms ("BPT"). Defendants Alfred R. Angele, Sharon Lawin,

16 Booker T. Welch, Jones M. Moore, and Kenneth L. Risen are Commissioners of the

17 BPT. Defendant Kenneth E. Cater is Chief Deputy Commissioner of the BPT.

18

19 III. DEFINITIONS

20

9. The following terms when used in this Order shall have the meanings

21 specified below:

22

(a) "Parolee(s)" shall mean any member of the Plaintiff class.

23

(b) "Day(s)" shall mean calendar days, unless otherwise specified.

24

(c) "Revocation process" or "revocation proceedings" shall mean all stages of the

25 process by which parole may be revoked, including placement of a parole hold, notice,

26 waivers, service of Return to Custody Assessments, and hearings.

27

(d) "Return to Custody Assessments" ("RTCAs") shall mean the practice by

28 which Defendants offer a parolee a specific disposition in return for a waiver of the

STIPULATED ORDER FOR PERMANENT INJUNCTNE RELIEF,

2

Civ. S-94-0671 LKKlGGH

1 parolee's right to a preliminary or final revocation hearing, or both.

2

(e) "Parole hold" shall mean any invocation by Defendants of their authority to

3 involuntarily detain a parolee for revocation proceedings under Section 3056 of the

4 California Penal Code. This term shall not apply to the detention of a parolee who has

5 absconded from the State of California until he or she is physically returned to the State

6 of California and is in its custody.

7

8 IV. POLICIES, PROCEDURES, FORMS, AND PLANS

9

10. For all policies, procedures, forms, and plans developed under this Order,

10 the parties shall use the following process: Defendants shall meet periodically with

11 Plaintiffs' counsel to discuss their development of policies, procedures, forms, and

12 plans. In preparation for such meetings, Defendants will provide Plaintiffs' counsel

13 with copies of the proposed policies, procedures, forms, and plans in draft form no later

14 than 7 days before the meeting. If the parties reach an impasse on any particular issues,

15 they may bring the disputed issues to the Court in a motion to be heard on shortened

16 time.

17

11. Using the procedure set forth above in Paragraph 10, Defendants shall do

18 the following:

19

(a) Defendants shall develop and implement sufficiently specific Policies and

20 Procedures that will ensure continuous compliance with all of the requirements of this

21 Order. The Policies and Procedures will provide for implementation of the August 21, 22 2003 Remedi~l Plan Outline (attached hereto as Exhibit A), as well as the requirements

23 set forth below in Paragraphs 12-24. Defendants shall submit the completed Policies

24 and Procedures to the Court no later than July 1, 2004.

25

(b) By July 1, 2004, Defendants shall begin implementing the following steps

26 in the parole revocation process, which shall be completely implemented by January 1, 27 2005:

28

(i) Defendants shall appoint counsel for all parolees beginning at the

STIPULATED ORDER FOR PERMANENT INJUNCTIVE RELIEF,

3

Civ. S-94-067I LKKlGGH

1 RTCA stage of the revocation proceeding. Defendants shall provide an expedited

2 probable cause hearing upon a sufficient offer of proof by appointed counsel that there

3 is a complete defense to all parole violation charges that are the basis of the parole hold.

4

(ii) No later than 48 hours after the parole hold, or no later than the next

5 business day if the hold is placed on a weekend or holiday, the parole agent and unit

6 supervisor will confer to determine whether probable cause exists to continue the parole

7 hold, and will document their determination.

8

(iii) If the parole hold is continued thereafter, no later than 3 business days

9 after the placement of the hold, the parolee will be served with actual notice of the

10 alleged parole violation, including a short factual summary of the charged conduct and

11 written notice of the parolee's rights regarding the revocation process and timeframes.

12

(iv) For all parolees who do not waive or seek a continuance ofa final

13 revocation hearing, Defendants shall provide a final revocation hearing on or before the

14 35th calendar day after the placement of the parole hold.

15

(c) By July 1, 2004, Defendants shall serve on counsel for Plaintiffs an

16 assessment of the availability of facilities and a plan to provide hearing space for

17 separate probable cause hearings.

18

(d) By July 1,2005, in addition to the steps listed above, for all parolees who

19 do not waive or seek a continuance of a probable cause hearing, Defendants shall

20 provide a hearing to determine probable cause no later than 10 business days after the

21 parolee has been served with notice of the charges and rights (at the 3rd business day

22 after the placement of the hold).

23

(e) Defendants shall complete implementation of the Policies and Procedures

24 by July 1,2005.

25

12. In addition to the provisions of the August 21, 2003 Remedial Plan Outline,

26 the Policies and Procedures shall ensure that the following requirements are met:

27

13. At the time of appointment, counsel appointed to represent parolees who

28 have difficulty in communicating or participating in revocation proceedings, shall be

STIPULATED ORDER FOR PERMANENT INJUNCTIVE RELIEF, Civ. S-94-0671 LKKlGGH

. 4

1 informed of the nature of the difficulty, including but not limited to: mental illness,

2 other cognitive or communication impairments, illiteracy, limited English-language

3 proficiency, and the need for a foreign language interpreter. The appointment shall

4 allow counsel adequate time to represent the parolee properly at each stage of the

5 proceeding.

6

14. At the time of appointment, counsel shall be provided with all non-

7 confidential reports and any other documents that the state intends to rely upon at the

8 probable cause or final revocation hearing. After appointment, if the state learns of

9 additional evidence or documents, and intends to rely on such additional evidence or

10 documents, it shall produce them to counsel as soon as practicable before the hearing.

11

15. Defendants shall develop and implement policies and procedures for the

12 designation of information as confidential that are consistent with the requirements of

13 due process.

14

16. Non-confidential portions of parolees' field files shall be available to

15 parolees' counsel unless good cause exists for failure to provide access to such files.

16 Field file information shall be withheld from counsel as confidential only in accordance

17 with the policies and procedures referenced in Paragraph 15.

18

17. Defendants shall develop standards, guidelines, and training for effective

19 assistance of state appointed counsel in the parole revocation process.

20

18. Defendants will ensure that parolees receive effective communication

21 throughout the entire revocation process.

22

19. Defendants will ensure that all BPT and CDC forms provided to parolees

23 are reviewed for accuracy and are simplified to the extent possible through a procedure

24 similar to that used to revise forms in Armstrong v. Davis, C94-2307 CW (N.D. Cal.).

25 This process will include translation of forms to Spanish. Revised forms will be

26 submitted to Plaintiffs' counsel for review prior to finalization, dissemination, or

27 modification.

28

20. Upon written request, parolees shall be provided access to tapes of parole

STIPULATED ORDER FOR PERMANENT INJUNCTIVE RELIEF,

5

Civ. S-94-0671 LKKlGGH

1 revocation hearings.

2

21. Parolees' counsel shall have the ability to subpoena and present witnesses

3 and evidence to the same extent and under the same terms as the state.

4

22. At probable cause hearings, parolees shall be allowed to present evidence

5 to defend or mitigate against the charges and proposed disposition. Such evidence shall

6 be presented through documentary evidence or the charged parolee's testimony, either

7 or both of which may include hearsay testimony.

8

23. Final revocation hearings shall occur within 35 calendar days of the parole

9 hold.

10

24. The use of hearsay evidence shall be limited by the parolees' confrontation

11 rights in the manner set forth under controlling law as currently stated in United States

12 v. Comito, 177 F.3d 1166 (9th Cir. 1999). The Policies and Procedures shall include

13 guidelines and standards derived from such law.

14

15 V. STAFFING LEVELS

16

Defendants shall maintain sufficient staffing levels in the CDC and BPT to meet

17 all of the obligations of this Order.

18

19 VI. MONITORING

20

25. The parties shall cooperate so that Plaintiffs' counsel has access to the

21 information reasonably necessary to monitor Defendants' compliance with this Order

22 and the Policies and Procedures adopted in response thereto. Such information shall

23 include but not be limited to: access to documents, tours, observation of parole

24 revocation proceedings, observation of training sessions, interviews of staff, and

25 interviews with parolees. Plaintiffs' counsel may notice depositions under the Federal

26 Rules of Civil Procedure either: (1) if Plaintiffs' counsel are unable to obtain relevant

27 information through interviews and informal document requests, or (2) after notifying

28 Defendants of non-compliance with this Order under Section VII, below. Before

STIPULATED ORDER FOR PERMANENT INJUNCTIVE RELIEF,

6

Civ. S-94-0671 LKKlGGH

1 noticing a deposition, Plaintiffs' counsel must consult with opposing counsel about the

2 deposition schedule so that the convenience of counsel, witnesses, and parties may be

3 accommodated, if possible.

4

26. The parties shall meet regularly, and at least once every 90 days, to discuss

5 implementation issues. At least once every 90 days, Defendants shall provide Plaintiffs'

6 counsel with a report on hold-to-hearing time in substantially the same form, and with

7 the same content as that currently used in Defendants' weekly "RSTS" meetings.

8

27. The parties shall agree on a mechanism for promptly addressing concerns

9 raised by Plaintiffs' counsel regarding individual class members and emergencies.

10

11 VII. ENFORCEMENT

12

28. The Court shall retain jurisdiction to enforce the terms of this Order. The

13 Court shall have the power to enforce the terms of this Order through specific

14 performance and all other remedies permitted by law or equity.

15

29. If Plaintiffs' counsel believe that Defendants are not complying with any of

16 the acts required by this Order, the Remedial Plans, or Policies and Procedures produced

17 pursuant to it, they shall notify Defendants in writing of the facts supporting their belief.

18 Defendants shall investigate the allegations and respond in writing within 30 days. If

19 Plaintiffs' counsel are not satisfied with Defendants' response, the parties shall conduct

20 negotiations to resolve the issue(s). If the parties are unable to resolve the issue(s)

21 satisfactorily, Plaintiffs may move the Court for any relief permitted by law or equity.
22

23 VIII. ATTORNEY'S FEES AND COSTS

24

30. Plaintiffs are the prevailing party in this action. Plaintiffs' counsel may

25 move for an award of reasonable attorney's fees and costs for obtaining relief for the

26 Plaintiff class pursuant to 42 U.S.C. § 1988 or any other applicable law. Defendants

27 shall pay Plaintiffs' counsel reasonable attorney's fees for work performed in

28 connection with monitoring and enforcing this Order. The parties reserve the right to

STIPULATED ORDER FOR PERMANENT INJUNCTJVE RELIEF,

7

Civ. S-94-0671 LKKlGGH

· It
Ii
Ii
I;
II
:i :\
1 [I addre~~s at a future date whether 42 U.S.C § 1997e(d) applies to an i-l\\ard of attorney\,
I
J
2 : fees in this suit.

3 IX. RESOlXfTION OF CLAIMS

4 i

~ 1. TIns stipulated order re~olve" till the rlaims in this case, except the

5\! following, to the extent that they are alleged in the Fifth Amended Complaint, jf at all:

611

(8.) Appeal~.. Plaint] ffs assert that Defendants' administrative-appeals system

7 1 for parole-revocation and revocation-extension decisions violates the Due Process and

8 Equal Protectjon Clauses of the Fourteenth Amendment.

9 I

(b) R~v09ation-Extension Proceedings. Plaintiffs assert that Defendants'

10 11 poliCIes, procedures, and practices for extending parole revocations based on alleged

II! rulesvlolatlODs \vhile in custody violate the Due Process Clau~e.
I 12;1, 32 The paJ1ies anticipate that these issueE; win be resolved infonnally, \;vlthout
I,
n \1 need. for the Court':i Intervention. The parties wj}1 infom.1 the Court ift.his does J1()t

d 14 I' __ C)(V"'CI<'T.•
I
151 !
i6 il

IT IS SO STIPULATED.

17 11
18 1 Dated: ~.re.}!:j~, 2003 I \
19
20 J
I 21 I I 22 I
~311 Dated: pI~..Llc_, 2003

ROSEN:, BIEN & ASARO
By IvIICHAEL BIEN
PRISON LAW OFFICE

2411

25
11

By .])~~u_un_

!II 26 1! !
27

DONALD SPECTER Attorneys for Plaintiff:;

28 I!Ii

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Dated:

l/ I j0;i~-tI,bU It
J1.!()03 -t:___________ ______ . ____ .

BILL LOCKYER, Attorney General

of the State of Califofllja,

ROBERT R. ANI)ERSON., Chief

ASslstant Attorney General,

!i.NICES l' GRl')"T'DE"u ;J, :D['\.,i',J , " , .

, l 'I

'l'"C.o ~enl• 0r

Assistant Attorney General"

JONATHAN L. WOLFF.,

S'upervising Deputy Attorney

General

By ~L~______

THOIVIAS S. PATTERSON,

Depur.f AJtorney General

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I,I;'
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II

L

II

11

\I

111'1,

ORDER

2

The Court tInds that this is not a '·civil case with respect to prison conditions," as

3 i, those terms are defined and applied il1 the Prison LitigatlOP R[~fiJ~'m Act ("PLR A"), ! 8

4 I U.S.C. ~ 3626. and that therefore thjs Older~s not go-en)'~':d :1y the PI ,RA. Defendant~',

I (";rd~;red 5 their agems, employees, and successors -in office arc

to comply WIth aD the

I I
6 terrns stated above.
,

7 i,

IT IS SO ORDERED

8
9 Dated: ______________, 2003
,I
Ii
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LAWRENCE K. KAR1TON Chief Jmlge, Emeritus

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EXHIBIT A

.... BILL LOCKYER Attorn.JI Ge,,6Tal

Still. of Cali/orllia . DEPARTMENT OF JUSTICE

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4S5 GOLDEN' GAts AVENUS. SUIT.E 11000 . SAN FRANCISCO. CA 94102-7004

Public: {·415 703-.5500

rele bone: FaJimile:

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~MeU: Thomas.PaUe13o j.ca.goV

August 20) 2003

The Honorable Lawrence K. ~loon

Chief Judie E~eritus

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United States District Court, ~ter:n District

501 "I" Street _

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Sar;;ramento. CA 95314

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RECEIVED AUG .2 .2 ·2003
ROSEN BIEN & ASARO

!fo. RE: Jerry Valdivia, et al. v.Gray Davis. eta!.
llSDC B.D· Cal.. Case CIY-S-91:V671 LKK..QOij P

Dear Judge Karlton:

The foll~wing is Defendlmu' revised xemedjal plan in this case. This plan represenl~ a tremendous am"OUIU ofwork by ~ Defepdants and other state officials since the July 23, 2003
order, much ofwhich has been done recently while consulting Plaintiff's co~l.

Defendants continue to ~rk with Plaintiffs' counsel to refine the revised remedial plan in efforts to perfect a viable Tev~cation system that affords appropriate process.

With this in mind, neithqr Plaintiffs nor Defendants dC$irc the Court to rule immediately·
on the adequ8Cyofthe revised r~a1 plan. Ratbm-, theY hope to resolve the issues soon and,
(If course. will advise the Cowt 9fthe outcome oftheir efforts.

Sincerely.
~JL
THOMAs S. PA1T.ERSON Deputy Attomey Oenerai A.ttomey for Defendanrs ~
For ~lLL LOCKY~
Attorney General

~~p~
Prison Law Office Attorney for Plaintiffs

Valdivia Remedial Plan

Violation Occurs

+

I

Remedial Sanctions-If Appropriate (COP!SATCUJAlternate Placement)

...
I Probable Cause Determination Review/Case ) Conference regarding PC 3056 Hold
...

Within 48 Hours of Hold Placement
(If on Weekend/Hoi no later than next
Business day)

* PCH Time starts 1st
- day after Notice and
runs for 10 Bus days

Parolee Noticed of Charges (Activity Report)!
- Interviewed and Provided Copies (Charges, BPT 1073, Notice of Rights)

i J 3 Business Days of Hold Placement

t

~

Violation Report Submitted by Agent of Record Violation Report Reviewed by Unit Supervisor

.-(*1-3 Bus Days
K 4 Bus Days

COPI Remedial Sanction
~
( Case ) Resolved

r Rev Pac~et Reviewed by Parole Administrator (PAD) _

l

...
Decentralized Revocation Unit

Revocation Packets Received - Data Entry (RSTS)

-------------------~

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Attorneys Receive Revocation Packets

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and Consult with Parolee

.
K5-6 Bus Days

Accepts/ COP/CTS!
NIC! .
Remedial Sanctionsl
Dismiss

y
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't RTC Assessment by DC or PAD Offers Communicated to Attorneys
Expedited Hearing with Offer of Proof
t Probable Cause .Hearing DC or PAD/Attorney/Parolee ExculpatorylDocumentary Evidence Presented

6-8 Bus Days ~9-10 Bu's Days

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{ Rejection of offer (Witness Selection/Hearing Location/ADA Review)

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Case Resolved

L.

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t Revocation Hearing
RevISed 8121/03 (1130 Hours)

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On or Before 35 Calendar
Days of Hold Placement

, ' -
VALDIVIA REMEDIAL PLAN POLICY OUTLINE
VIOLATION OCCURS There are a myriad of circumstances under which a Parolee can violate his or her conditions ofparole. There are approximately 100,000 parole violations . referred to the Board of Prison Terms each calendar year.
Currently about 60% of the reported violations are the result of arrests by local law enforcement. Of that 60% arrested by local law enforcement, many are charged in the local jurisdictions for crimes against the state, while others are not charged locally but instead referred to the Board· of Prison Terms for administrative disposition..
The remaining 40% are arrests that involve the Parole officer, which may also result in local charges or referral to the Board of Prison Terms for administrative disposition.
The average parole violator's term in prison is five and one halfmonths.
Approximately 66% of the cases referred to the Board of Prison Terms are resolved prior to the revocation hearing. Last year, the Board of Prison Terms conducted approximately 37,000 revocation hearings.
REMEDIAL SANCTIONS
As part of the overall reform of the revocation process, the Parole and Community Services Division of the Department of Corrections will begin using remedial sanctions/community based treatment placement in January. of 2004.
Some of the remedial sanctions/community based treatment programs that will be used are the Substance Abuse Treatment Control Units, Electronic Monitoring, Self-Help Outpatient/aftercare programs, and alternative placement in structured and supervised environments.
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These remedial sanctions are not considered violations of parole because participation in the remedial sanctions program is voluntary and participation in the remedial sanctions program will not make the parolee presumptively ineligible for discharge at 13 months.
The goal is to reduce the number of returns to prison for violations of parole by up to 10% in 2004 and by up to 30% by 2006.
IF REMEDIAL SANCTIONS ARE DEEMED INAPPROPRIATE AND A PAROLE HOLD IS PLACED ON THE PAROLEE, A PROBABLE CAUSE DETERMINATIONIREVIEW WILL TAKE PLACE WI1HIN 48 HOURS OF THE HOLD AND IF THE HOLD IS PLACED ON A WEEKEND OR HOLIDAY, THE PROBABLE CAUSE REVIEW WILL BE CONDUCTED NO LATER THAN THE NEXT BUSINESS DAY FOLLOWING THE HOLD BEING PLACED.
Although this probable cause review for parolees is not required under any of the current, relevant case law, it is being put in place in an attempt to take a second look at those individuals who have been placed into custody to determine if the "present danger to public safety" concern still exists or if remedial sanctions/community based treatment is possible at this juncture.
As an example, a parolee who was ·strung out on dope may have "dried out" sufficiently that he or she is no longer a danger to him or herself or the public and may be an appropriate candidate for community based treatment in a structured, supervised program.
Under such a scenario, the parolee would be released to a community based treatment program with the understanding that a specific condition of his or her release is the completion of the program and any other special conditions of parole that the Parole Agent deems appropriate.
Current regulation and case law require any special conditions ofparole to have a nexus to the parolees' commitment offense or behavior;
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PAROLEE IS GIVEN ACTUAL WRI'ITEN NOTICE OF CHARGES WITH A SHORT FACTUAL SUMMARY OF THE BEHAVIOR; THE NOTICE OF RIGHTS REGARDING THE REVOCATION PROCESS; AND THE BPT 1073 ADA DETERMINATION IS MADE VIA A FACE TO FACE INTERVIEW WITHIN 3 BUSINESS DAYS OF THE HOLD BEING PLACED.
If the remedial sanctions are deemed inappropriate, Within three business days of the hold being placed, the parolee shall be served actual notice ofthe charges against him or her accomp~ied by a short factual summary of the behavior; he or she shall be interviewed; an a ADA detennination shall be made; the BPT form 1073 shall be completed, and parolee shall be provided with a written notice of rights regarding the revocation process and time frames. (Hereinafter referred to as "notice.")
The principles of "effective communication" apply to the revocation process. ADA accommodation must be provided "ror all parolees when necessary. In addition, all forms shall be printed in Spanish and English and a Spanish speaking person shall be available to interpret and explain the forms to the parolee where necessary.
THE PROBABLE CAUSE HEARING SHALL BE CONDUCTED WITHIN 10 BUSINESS DAYS FOLLOWING THE DATE OF ACTUAL SERVICE OF THE NOTICE OF CHARGES, THE ADA DETERMINATION, AND THE NOTICE OF RIGHTS.
Within the first 3 days after the parolee has been served with notice, the violation report must be completed and submitted to the Parole Unit supervIsor.
On or before the fourth business day, the Unit Supervisor must review the report and: (1) determine if there is sufficient basis for the revocation to go forward; (2) determine if the report is accurate, complete, and contains the correct Title 15 violation sections; and (3) review the report and consider whether or not remedial sanctions/community based treatment is appropriate in lieu of proceeding with referral to the Board of Prison Terms with a recommendation that the parolee be returned to prison.
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->
On or before the 4th business day, the revocation packet is reviewed by the
Or Parole Administrator to determine whether not there is a sufficient basis
for the case to move forward and whether or not Remedial Sanctions/Community Based Treatment is appropriate at this juncture.
On or before the 5th business day, the revocation packet is forwarded to the decentralized revocation unit where the parolee is being held.
On or before the 6th business day, the parolee (including non-Annstrong class members) shall be appointed an attorney and the attorney shall be provided with a copy of the revocation packet, which shall contain a signed copy of the notice of charges, notice of revocation ofrights, and a completed BPT 1073.
Attorney shall meet with the Parolee, provide the parolee with a copy of the revocation packet, and shall communica~e any offer or offers made by the . Board of Prison Terms Deputy CommissionerlParole Administrator prior to the probable cause hearing.
In the event the parolee can make a sufficient offer of proof of a complete defense to the charges the Board of Prison Terms Deputy CommissionerlParole Administrator, an expedited Probable Cause Hearing with Documentary and!or live testimony shall be scheduled. As an example, if the parole has uncontroverted documentary evidence that he or she was in
Santa Rita jail when this violation allegedly occurred in Los Angeles,
parolee shall be allowed to present such evidence at an expedited probable cause hearing between the 6th and 8th business day or at the earliest time possible thereafter ifparolee is unable to produce such evidence by the 6th to 8th day_
On or before the 6th to 8th business day, a return to custody assessment (an offer) is made by the Deputy CommissionerlParole Administrator, and the offer shall be communicated to the parolee's attorney.
On or before the 10th business day, a Probable Cause Hearing shall be held with the Deputy CommissionerlParole Administrator, the parolee, and parolee's attorney.
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The Deputy CommissionerlParole Administrator conducting the hearing shall be the same Deputy CommissionerlParole Administrator who made the return to custody assessment (offer) where practicable.
Parolee shall be permitted to present documentary evidence and hearsay testimony by way of offer of proof through his or her attorney in mitigation or as a partial or complete defense to the charges and/or the proposed disposition.
The Deputy CommissionerlParole Administrator shall have the complete range of options to resolve the case. (Continue on parole, credit for time served, release from custody with pending charges, remedial sanctions/community based treatment, reduce the offer downward, dismiss some or all of the charges)
The Deputy Commissioner shall not have the authority to adjust the return to custody assessment upward at or during the probable cause heari.ng.
Parolee shall have the right to waive time as to any of these hearing time constraints with or without good cause.
Attorney shall have the right to a continuance upon the showing of good cause in the absence of his or her client's consent in cases of emergency or illness or upon such other showing that the Deputy CommissionerlParole Administrator can make a finding of good cause.
There shall be a written record of this proceeding and the basis for any decisions made therein.
It is not necessary that the Probable Cause H~aring be audio/video recorded~
If at the conclusion of the probable cause hearing, the parolee has rejected the offer, parolee shall provide the Deputy CommissionerlParole Administrator with a list of witnesses he or she would like to call at the revocation hearing. The location of the hearing shall be determined (within 50 miles of the violation), and the Deputy CommissionerlParole Administrator shall make an independent ADA accommodation determination.
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REVOCATION HEARING The revocation hearing shall be held at the earliest possible time and in no case later than 35 calendar days after the parole hold has been placed.
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· .,

DECLARATION OF SERVICE BY U.S. MAIL

Case Name: JERRY VALDIVIA, et al. v. GRAY DAVIS, et al. No.: USDC E.D. #CIV-S-94~0671 LKK GGH P

I declare:

I am employed in the Office ofthe Attorney General, which is the office of a member ofthe
California State Bar which member's direction this service is made. I am 18 years of age and older and not a party to this matter. I am familiar with th~ business practice at the Office of the Attorney General for collection and processing of correspondence for mailing with the United States Postal Service. In accordance with that practice, correspondence placed in the internal mail collection system at the Office of the Attorney General is deposited with the United States Postal Service that same day in the ordinary course ofbusiness.

On August 21, 2003, I served the attached

DEFENDANTS' REVISED REMEDIAL PLAN

by placing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid, in the internal mail collection system at the Office of the Attorney General at 455 Golden Gate Avenue, San Francisco, California 94102-7004, addressed as follows:

Michael W. Bien, Esq. Rosen, Bien & Asaro ISS Montgomery Street, 811a Floor San Francisco, CA 94104
Donald Specter Prison Law Office General Delivery San Quentin, CA 94964
Stephen J. Perrello, Jr. P.O. Box 880738 San Diego, CA 92168

Alexander L. Landon Law Offices of Alex Landon 2442 Fourth Avenue San Diego, CA 92101
Karen Kennard Kristen A. Palumbo Bingham McCutchen LLP Three Embarcadero Center San Francisco, CA 94111-4067

I declare under penalty ofperjury under the laws of the State of California the foregoing is true and correct and that this declaration was executed on August 21, 2003, at San Francisco, California.

40006164.wpd

A. ALBANO Declarant

Signature

DECLARATION OF SERVICE BY U.S. MAIL Case Name: Jerry Valdivia, et al. v. Gray Davis, et al.

No.:

USDC, Eastern District of California, Case No. CIV-S-94-0671 LKK GGH P

I declare:

I am employed in the Office ofthe Attorney General, which is the office of a member of the California State Bar which member's direction this service is made. I am 18 years of age and older and not a party to this matter. I am familiar with the business practice at the Office of the Attorney General for collection and processing of correspondence for mailing with the United States Postal Service. In accordance with that practice, correspondence placed in the internal mail collection system at the Office of the Attorney General is deposited with the United States Postal Service that same day in the ordinary course of business.

On November 18,2003, I served the attached

STIPULATED ORDER FOR PERMANENT INJUNCTIVE RELIEF

by placing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid, in the internal mail collection system at the Office of the Attorney General at 1300 I Street, P.O. Box 944255, Sacramento, California 94244-2550, addressed as follows:

Karen L. Kennard Bingham McCutchen LLP Three Embarcadero Center San Francisco, CA 94111-4067

Alex Landon Law Offices of Alex Landon 2442 Fourth Avenue San Diego, CA 92101

Donald Specter Prison Law Office General Delivery San Quentin, CA 94964

Stephen J. Perrello, Jr. Law Offices of Stephen J. Perello P.O. Box 880738 San Diego, CA 92168

Michael W. Bien Rosen, Bien & Asaro 155 Montgomery Street, 8th Floor San Francisco, CA 94104

I declare under penalty of perjury under the laws of the State of California the foregoing is true and correct and that this declaration was executed on November 18, 2003, at Sacramento, California.

10025232. wpd

R. Wells Declarant

lsi Signature