City seeks hearing on ‘self-dealing by CDCR;’ alleges CCC warden attended meeting where AB 200 authorship allegedly was discussed

The “self-dealing” issue of California Department of Corrections and Rehabilitation staff allegedly being involved in the drafting of AB 200, a trailer budget bill that gutted the legal basis of the city’s lawsuit against CDCR et al, continues to be a major issue in the city’s lawsuit against the CDCR et al regarding the proposed closure of the California Correctional Center in Susanville.

While the state has asked for an “expedited ruling” dissolving Lassen County Superior Court Judge Mark Nareau’s preliminary injunction and the immediate dismissal of the city of Susanville’s lawsuit by noon Wednesday, Sept. 7 or it threatens to file an appeal, Susanville attorneys Margaret Long and Scott McLearn request a “full hearing” on the state’s alleged self-dealing or alternatively, “leave to file a formal contempt action with the subpoena power of the court to compel the appearance of particular CDCR employees reported to be directly involved in such activities.”

The city attorneys argue in a Sept. 2 filing, “Petitioner has vested and substantive rights in this matter that are subject to the very separation of powers and due process contentions raised in relation to the passage of AB 200. As such, the clear impact of AB 200 on this pending litigation must be subject to judicial review as to whether the retroactivity of Penal Code section 5032, which removes any CEQA requirements related to the closure of CCC, as well as Penal Code section 5003.7, which now sets a hard deadline of June 30, 2023 for the closure of CCC, constitute an unconstitutional overreach by the legislature, a violation of petitioner’s substantive due process rights, and a contemptable action by respondents should it be determined that they were, in fact, involved in the drafting of the above-referenced made part of AB 200.”

According to the Merriam-Webster Dictionary, a substantive right is: “a right (as of life, liberty, property, or reputation) held to exist for its own sake and to constitute part of the normal legal order of society.”

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According to the city’s court filing, “the 11th-hour addition of penal code sections 5003.7 and 5032 to the final iteration of AB 200, implicates real and legitimate separation of powers and due process issues in this litigation. While it has been proffered that the holding in Sagaser v. McCarthy, in which CEQA was not deemed to be of such constitutional dimension to prohibit the legislature from exempting its requirements, is similar in fact to this case. Upon a closer review, Sagaser is clearly distinguishable from CEQA-related facts in this case, and entirely unrelated and non-instructive as to petitioner’s non-CEQA cause of action pertaining the alleged improper selection of the CCC for closure under Penal Code section 5003.7.”

According to the city, the state’s revision of section 5003.7 is “egregious” as it “reflects the legislature’s intent to void the legitimate purpose reflected in the (previous) selection criteria, which focused largely on cost savings, housing capacity and long-term operational value. For reasons entirely unstated, these criteria have been withdrawn from section 5003.7. In doing so, petitioner’s cause of action challenging the improper application of section 5003.7, has, like the CEQA cause of action, been pulled proverbially, like a rug from under petitioner’s feet. Absent some clear, compelling, and legitimate legislative purpose for doing so, which is clearly lacking, the unconstitutional retroactivity of section 5003.7 sticks out like a sore thumb in its self-dealing result benefitting respondents in this litigation.”

The city attorneys argue, “The Due Process Clauses in the state and federal constitutions, in their substantive aspects, provide checks on the government’s power to act unfairly or oppressively … In order to demonstrate that a statute or governmental procedure violates due process, a party must show that there is no rational relationship between the statute or procedure and the government’s legitimate ends … when a statute changes the legal consequences of past conduct, it is considered substantive … Where a statute substantially affects existing rights and obligations, then its application to a trial of pre-attachment conduct is forbidden, absent an express legislative intent to permit its retroactive application.”

City asserts its right to a hearing
According to the city’s court filing, “For every wrong there is a remedy. Accordingly, where legal wrong has been committed, the court must grant appropriate relief. In the context of substantive due process protections, the government is prevented from enacting legislation that is arbitrary, or discriminatory, or lacks a reasonable relation to a proper legislative purpose.”

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They city argues while the requirements of the CEQA exemption under Penal Code section 5032 the state uses as “the legal basis for dismissing the entirety of this action, the fact remains that Penal Code section 5003.7 has no relationship to CEQA and must stand on its own … ” because if “CDCR failed to follow the mandatory selection criteria when identifying CCC for closure, (it) would be an unconstitutional and impermissible overreach by the legislature. It is only through a full evidentiary hearing on these issues that this court will be in a position to make appropriate findings as to these issues, thereby assuring petitioner is afforded the federal and statute constitutional rights and protections it is entitled.”

According to the city, in order to establish a substantive due process claim, it must show a governmental deprivation of life, liberty or property, but “in the context of due process related to governmental action, typically legislation that is retrospective in character, the constitutional question is not exclusively whether such laws impair vested rights, but rather, whether the law in question is a reasonable exercise of police power … Such conduct by respondents which petitioner has relied upon in this litigation, serves as a separate basis for this court to identify a protected property right held by petitioner. The Supreme Court has declared that a legitimate claim of entitlement can also be based on the conduct and representations of government officials when their actions lead to the creation of a ‘mutually explicit understanding’ … The right to a fair adjudicatory procedure is an element of protected liberty. A lawsuit is a property right.”

“ … while respondents have placed predominant focus on the CEQA exemption set forth in the newly enacted Penal Code section 5032 as the legal basis for dismissing the entirety of this action, the fact remains that Penal Code section 5003.7 has no relationship to CEQA, and must stand on its own under the very separation of powers and due process requirements addressed herein … any retroactive application of section 5003.7 … upon which a substantial portion of petitioner’s writ is based, i.e., that CDCR failed to follow the mandatory selection criteria when identifying the CCC for closure, would be an unconstitutional and impermissible overreach by the legislature. It is only through a full evidentiary hearing on these issues that this court will be in a position to make appropriate findings as to these issues, thereby assuring petitioner is afforded the federal and statute constitutional rights and protections it is entitled.”

According to the city, its writ petition and complaint were “appropriate” when the case began by stating a cause of action regarding the need of a CEQA review as part of the prison closure process. During a March 11, 2022 court proceeding, CDCR attorneys informed the court the department had “changed course” and would now conduct a CEQA review prior to the closure of CCC. The city attorneys said they “relied on this new position and resulting understanding,” and that reliance “certainly influenced petitioner’s legal and tactical considerations … Rather than fulfilling this expressed commitment to complete CEQA, respondents have now changed course and seek to dismiss this action on the grounds they are no longer obligated to comply with CEQA. In light of the evidence suggesting respondents’ involvement in the drafting of the very provisions of AB 200 that they now rely on in their efforts to have this action dismissed in its entirety, and lacking any dispute between the parties that petitioner’s CEQA claim was appropriately brought in the first instance, there simply is no question the petitioner has a vested right and interest in the litigation itself … Such conduct by respondents which petitioner has relied upon in this litigation, serves as a separate basis for this court to identify a protected property right held by petitioner.”

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New information about CDCR budget meeting
According to the Sept. 2 court filing by city, “Since the Aug. 26, 2022 hearing in this matter, petitioner has received additional information concerning CDCR officials who attended a July 1, 2022 CDCR budget meeting at which CDCR’s Assistant Secretary for Legislative Affairs allegedly notified meeting attendees that she was directly involved in the drafting of the language in AB 200 pertaining to the closure of the CCC.”

“Petitioner now has (the) names of several CDCR individuals reported to have attended the July 1, 2022 meeting, including the warden of CCC. While these participants have not come forward, openly, to verify the accuracy of these allegations, petitioner is advised that one or more of the meeting participants will testify openly regarding any information discussed regarding CDCR’s involvement in the drafting of AB 200, if subpoenaed, should this court set a hearing on this issue. Clearly, this is necessary and appropriate.”

According to the city attorneys, “in light of ensuring the integrity of these proceedings, it is also 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 previous court actions, the city has already asked the judge to allow the court or the city to subpoena individuals to receive testimony from those who attended that budget meeting to get at the truth of that allegation.

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The court has not yet scheduled the next hearing date in this case.