On Monday, March 14, Lassen County Superior Court visiting Judge Robert Moody continued his slow, deliberate and methodical approach to resolving the city of Susanville’s lawsuit against the California Department of Corrections and Rehabilitation et al regarding the proposed closure of the California Correctional Center in a public proceeding held in at the Lassen County Hall of Justice via Zoom.
Moody said after 50 years in the legal profession, this may be the most complicated case he’s ever encountered.
In fact, he said after reading more than 1,000 pages of documents filed by attorneys on both sides, the legal and factual matters the case presents may be “vastly more complicated” than the attorneys themselves realize.
He said there are no “stand alone legal issues” in the case but rather “deeper issues of factual situations” that force him to ask for assistance from a special master, whom he also referred to as “a referee.”
While there are concerns about the slow bleed shut down of CCC due to the reduction in staff and inmates, Moody said there are three issues that need to be resolved by the court: the state’s demurrer, the special master and the court’s temporary restraining order.
The state’ dsemurrer
The state, represented by multiple attorneys from San Diego to Sacramento, argued the judge could simply rule on their demurrer and end the case.
According to Cornell Law School’s website, a demurrer is “A defense asserting that even if all the factual allegations in a complaint are true, they are insufficient to establish a valid cause of action.”
Moody agreed that if the state’s demurrer is successful (a demurrer is often called a motion to dismiss), the “case goes away,” but he also said a ruling on the state’s demurrer is “premature.” He also advised the attorneys the demurrer process “is going to take some time.”
Although he said he has a person in mind for the job, Moody held off appointing a special master to help sort out the legal issues posed by the lawsuit.
Moody said the person he has in mind for the job has expressed an interest in working on the case, but he has not yet agreed to become the “referee” in a case that poses many unresolved issues. He also said it remains unclear exactly what tasks the court will ask the special master to complete.
Moody also asked the city and the state to address the question of how they would pay for the services of the special master .
Temporary restraining order
Moody also said the temporary restraining order issued Aug. 2, 2021, by Lassen County Superior Court Judge Mark Nareau remains in effect.
Nareau found merit in the city’s argument the state had not followed due process procedures in making the decision to close CCC, and he issued a temporary restraining order which ordered, “Respondents and each of them (the California Department of Corrections and Rehabilitation, California Governor Gavin Newsom and Secretary of CDCR Kathleen Allison) are hereby enjoined and restrained from performing any acts to further the closure of California Correctional Center pending hearing and further order of this court.”
According to Nareau’s order, “It does not appear to the court that the necessary requirements imposed upon the executive branch in facilitating the decision to close the California Correctional Center have been complied with. The executive branch of the government of the state of California, like the citizens it serves, must comply with the law.”
Although Moody has not addressed that issue, some local residents believe the CDCR violated Nareau’s restraining order when it began a California Environmental Quality Assurance Act review of the proposed CCC closure in January — more than five months after Nareau issued the restraining order.
That CEQA process began with the release of a Notice of Preparation of an EIR on Jan. 11. A 30-day review period, including public comment, continued until Feb. 14. A Draft EIR will be prepared and released during the summer of 2022. A 45-day review period is expected to be completed during the summer as well. In late summer, the Final EIR, including responses to comments, will be completed. Final Certification of the EIR is planned for the fall of 2022.
Gary Jakobs, of Ascent Environmental, the company that will prepare the EIR, said during a Public Scoping Meeting held Jan. 27, that closing a facility generally does not have an environmental impact, “but in looking at some of the issues that could occur, it was determined that urban decay could occur as a result of reduced economic activity in the region — and urban decay is a physical effect, so we will be evaluating that.”
Jacobs said other issues up for evaluation include air quality (due to previous but apparently resolved complaints about odors from effluent), tribal cultural resources and alternatives to the closure of CCC.
Moody ordered the state to file any briefs in the case by March 24 and city to file its responses by March 29. A hearing on those filings will be held at 10 a.m. Friday, April 1. Moody said he could tell the parties what the duties of the special master would perform on April 1.
Moody also set a hearing on the state’s demurrer for 10 a.m. May 6.
Moody apologized for his lack of computer expertise and took responsibility for some of the service issues expressed by the attorneys, and he sought to resolve those issues.
Responding to a concern raised by a state attorney that the state received court documents so late they did not have adequate time to respond, the Lassen County Superior Court clerk in the courtroom said the Lassen County court does not utilize electronic filings of documents, so when the court receives a filing it is copied and then sent through the mail, which may have contributed to the delay.
Moody said the parties could send each other copies of their paperwork, but those would not replace the actual court filings as required by law. One state attorney from San Diego said all the documents could be sent to him, and he could distribute them to the other state attorneys.