City alleges governmental ‘self-dealing’ as federal, state constitutional showdown could come in CCC-closure case hearing Friday morning

Nearly a month after visiting Lassen County Superior Court Judge Robert F. Moody asked attorneys on both sides of the city of Susanville’s lawsuit against the California Department of Corrections and Rehabilitation to file briefs regarding the applicability of U.S. v. Klein, an 1871 U.S. Supreme Court case arising in the aftermath of the Civil War that raises separation of power issues between different branches of government, Friday may be the day of reckoning on this issue and perhaps the entire case.

At an Aug. 2 case management conference, while Moody called U.S. v. Klein a “thicket of complexity,” he also acknowledged if the separation of powers issue resolves in the state’s favor, “that ends this case,” and “the new statute (AB 200, a budget trailer bill that changed the law on which the city’s lawsuit is based) is fully operative.”

At that proceeding, Moody also expressed concern that AB 200’s elimination of the requirements of a California Environmental Quality Act review of the effect of CCC’s closure “may be unconstitutional.”

State seeks immediate dismissal with leave to amend
In their brief, the state attorneys asked the court to immediately dismiss the case due to AB 200.

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“Because recently enacted Assembly Bill 200 is constitutional and valid legislation, the city of Susanville’s petition is moot,” the state attorneys wrote. “The court should grant respondents’ renewed demurrer and dismiss the petition without leave to amend. Assembly Bill 200 was properly passed by the legislature and signed by the governor. As relevant here, it revised Penal Code section 5003.7 to require the California Department of Corrections and Rehabilitation to close the California Correctional Center by June 30, 2023, and added section 5032 to the Penal Code, exempting prison closures, including prison closures announced before its passage, from compliance with the California Environmental Quality Act. As the court has acknowledged, on its face this legislation ends this case. Nevertheless, the court has sua sponte (“on its own accord”) raised various theories as to whether the legislature has overstepped its prerogative. None is legally tenable. This case should be over.”

But the city’s attorneys responded U.S. v. Klein rightly addresses issues of “prohibiting governmental self-dealing through legislative changes that benefit the government as a party in litigation … The timing of AB 200, including the aforementioned statutory changes impacting this matter, which appear to have been added to the bill on June 26, 2022, some three days before being sent to governor for signature, present real and legitimate concerns regarding how such a bill, with its clear and obvious implications on petitioner’s (city of Susanville) writ petition and complaint, could be authored, debated, and passed without respondents’ (CDCR) involvement. As discussed at the Aug. 2, 2022, case management conference, petitioner has received reports that CDCR officials were involved in the drafting the AB 200, as was purportedly disclosed during a CDCR budget meeting on July 1, 2022, although the individuals who allegedly disclosed this are unwilling to come forward at this time. Thus, while such reports have not been substantiated, efforts continue to clarify what was said, and by whom, at the July 1, 2022 meeting. Such efforts are clearly warranted, as any attempt by respondents to influence any provisions of AB 200 to their benefit in this litigation would be a clear violation of the preliminary injunction and an overreach of the legislature’s authority under the separation of powers doctrine.”

“There is no separation of powers violation here,” the state attorneys argued. “Well settled California law provides that the legislature does not violate the separation of powers doctrine by enacting a new law that changes the outcome of a case that is not yet final. And as a decision interpreting the federal Constitution and the powers of Congress and the federal judiciary, Klein is not binding authority on the separation of powers clause in the California Constitution. Moreover, even assuming Klein applies, there is still no separation of powers violation because its holding is consistent with California law. The court further opined that the legislation might be unconstitutional because it took away a statutory right held by the city. But the city holds no such rights here. All the city asserts in this case is a cause of action that the department failed to follow the law in deciding which prison to close and another for failing to follow CEQA. There is no continuing right to a cause of action based on a legal obligation the legislature has extinguished. Changing the law is the prerogative of the legislature. So long as legislative action does not run afoul of constitutional concerns, obligations imposed through legislative action may be altered, enlarged or even removed completely. Finally, the court queried whether the process by which the legislature passed AB200 was constitutionally deficient. According to the court, complaints have been made about how the bill was passed that, in the court’s mind, raise the issue of whether the legislation is constitutional. This theory is entirely without merit, as the legislature complied with all the procedures for enacting laws prescribed by the California Constitution.”

City alleges “self-dealing” by the legislature, CDCR
“Pursuant to Klein, the primary question in determining whether the government has engaged in improper self-dealing in violation of the federal and state separation of powers doctrines is whether AB 200 includes provisions specifically intended to benefit respondents in this litigation,” the city attorneys wrote. “A quick and simple review of the operative sections of AB 200 demonstrates such purpose. In this litigation, petitioners have raised two causes of action, including respondents’ failure to follow proper criteria under former Penal Code section 5003. 7, resulting in the wrongful selection of the CCC for closure, and respondents’ failure to complete necessary environmental review related to the proposed closure of the CCC. AB 200 guts these very causes of action through its repeal and replacement of section 5003.7, which removed the selection criteria to be followed in identifying the two mandated prison closures and replaced such criteria with a simple mandate to close the CCC closure on or by June 30, 2023 … The foremost principle under CEQA is that the legislature intended the Act to be interpreted in such manner as to afford the fullest possible protection to the environment within the reasonable scope of the statutory language … The self-dealing nature of AB 200 is further emphasized when comparing the complete and utter void of any rational relationship between its sudden exemption of CEQA review on the CCC closure to the strikingly clear legislative intent behind CEQA — i.e. furthering the strong public policy of protecting the environment, which certainly is to the benefit of all Californians … This glaring and quite ironic deviation from its long history of protecting the environment and the quality of life for the citizens of California through legislative action simply leaves little room for any conclusion than that the changes to Penal Code section 5003. 7, and adoption of Penal Code section 5032, both of which target petitioner’s causes of action with laser precision, serve to benefit one party in this litigation, that being respondents …

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“The focus in questions of separation of powers is the degree to which the governmental arrangements at issue comport with, or threaten to undermine, either the independence and integrity of one of the branches or levels of government, or the ability of each to fulfill its mission in checking the others so as to preserve the interdependence without which independence can become domination. It appears evidently so that the strategic impact of AB 200 on this litigation constitutes an impermissible overreach by the state and respondents. As such, this court has the authority consider and determine whether the specific provisions of AB 200, which were enacted approximately one year after this litigation commenced, violate the federal and state separation of powers doctrines. AB 200’s impact on this litigation imposes an untenable burden on petitioner in its ability to pursue its claims that serve to protect the environment and the citizens of Lassen County from the irreparable harm already determined by this court to have occurred as a result of the very actions AB 200 now seeks to validate. There is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority must be imposed generally. Conversely, nothing opens the door to arbitrary action so effectively as to allow those officials to pick and choose only a few to whom they will apply legislation and thus to escape the political retribution that might be visited upon them if larger numbers were affected.”

City asks for hearing on self-dealing issue, asks court to grant it subpoena power
The city attorneys argue the recent declaration by City Administrator Dan Newton should compel the court to hold a hearing to get at the facts regarding CDCR’s alleged involvement in drafting AB 200.

“In light of the very important and highly consequential matters at stake in this litigation, which are clearly compounded by the recent information provided to City of Susanville’s Administrator, Dan Newton, concerning the purported direct involvement of CDCR personnel in the drafting of the provisions of AB 200 that serve to directly impact petitioner’s case and controversy requirements, petitioner should and must be afforded an evidentiary hearing as a matter of fundamental fairness and in furtherance of the integrity of these proceedings to determine the extent to which, if any, respondents acted in violation of the current preliminary injunction, and in contravention of the prohibition on self-dealing.

“Otherwise, this litigation will be relegated to an extremely short one-party race to the finish line, with respondents moving in an unobstructed manner as a result of this highly suspect and potentially constitutionally-infirm legislation, in their efforts to have this matter dismissed. If respondents are allowed to proceed in such a manner, petitioner will be left unable to adequately protect itself from the irreparable harm stemming from respondents’ pre-AB 200 failure to follow mandates pertaining to the selection of the CCC for closure, and the environmental harm that will most certainly result now that environmental review has suddenly been stripped away and a hard closure date now set for the CCC. The government’s self-interest is presumed — perhaps definitively established — when a ‘substantial part’ of the impact of the new rule benefits the government at the expense of a party who bears the brunt of the change in law …

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“It is for these reasons that this court should set a hearing on these issues, thereby affording petitioner the subpoena power of the court to compel witnesses to testify as to their direct knowledge of, and/or involvement in, the drafting of those provisions of AB 200 that go to the merits of this action. Further, pursuant to Evidence Code section 1203, such a hearing would afford both parties the ability to question CDCR employee Sarah Larson on her purported admissions regarding her direct involvement in the drafting of AB 200, which is certainly warranted for purposes (t0) confirm the veracity of the attributed statements. Such a hearing would appear to fall well within a court’s authority to reconsider and even change its orders, including the renewal of petitioner’s prior contempt action, and in determining whether the enactment of the aforementioned provisions of AB 200 constitutes unconstitutional self-dealing by respondents and the state.

“For the reasons stated above, petitioner respectfully requests that this court find the self-dealing prohibitions set forth in Klein, and as supported by state law, to be applicable to these proceedings. Further, it is respectfully requested that this court set a hearing on the issue of whether the CDCR, as an arm of the state, participated in the drafting of AB 200 for the purpose of benefiting itself in this action. In the interim, it is requested that all current findings and orders remain in full force and effect.”