State asks judge to dismiss city’s CCC lawsuit and order the city to pay its legal fees

Three weeks ago the city of Susanville and those engaged in the fight to keep the California Correctional Center open got a proverbial boot in the face when California Governor Gavin Newsom signed a trailer bill as part of the state budget that repealed both Penal Code section 5003.7 and the requirement to conduct a California Environmental Quality Act review prior to the prison’s closure — essentially gutting the city’s case, according to insiders and journalists alike following the case. Now, according to recent court filings, save a ruling by the judge, that assessment appears correct.

When the news of the trailer bill broke, Dan Newton, Susanville city administrator, said “When the state got caught not following the laws, it decided to just change the law instead of doing what was right. Anyone who understands what the state has done should be in awe of the state’s blatant disregard for what is fair and just.”

On July 7, Newton reported on the city’s closed session discussion with its attorney regarding the development: “The Susanville City Council met in closed session July 6, 2022, regarding existing litigation related to the announced closure of the California Correctional Center and in light of the trailer bill that mandates closure of the CCC by June 26, 2023. The Susanville City Council directed staff to continue to explore legal mechanisms to keep the facility open and operational, while simultaneously working to open a dialog with state representatives regarding the future of the facility.”

On July 1 Margaret Long, the city attorney, and the state attorneys stipulated a 15-day extension of visiting Lassen County Superior Court Judge Robert F. Moody’s order that the state respond to his June 24 (Proposed) Order on Demurrer.

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A demurrer an objection that an opponent’s point is irrelevant or invalid while granting the factual basis. A demurrer essentially admits an allegation may be true, but then asks the question, “So what?”

Yesterday, Wednesday, July 20, the state filled several documents. Dan Newton, Susanville’s city administrator, said the city attorney is working on a response to the state’s recent court filings.

Here’s some information from the July 20 court filings by the state.

Renewed Demurrer to Petition for Writ of Mandate
This pleading will be heard at 9 a.m. Friday, Aug. 12 in Lassen Superior Court.The state’s attorneys allege the city’s causes of action seeking a writ of mandate (an order of the court to force a party to follow the law) no longer apply due to recent changes in state law.

Answer to Petition for Writ of Mandate
And Respondent’s Notice of Demurrer to City of Susanville’s Petition for Writ of Mandate
In these documents, the state attorneys admit CDCR announced the proposed closure of the California Correctional Center and that the Deuel Vocational Institution had closed prior to Sept. 30, 2021.

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The state also admits the city of Susanville received no advance notice of that decision.

The state admits it did not bring the proposed closure of CCC to the state legislature’s budget committee prior to the April 21, 2021, announcement of the proposed closure, but the Assembly Budget Subcommittee No. 5 met and discussed repairs at CCC Feb. 22, 2021.

The state offered the following “affirmative defenses:”

  1. Each of the causes of action fails to state sufficient facts to state a cause of action.
  2. This action, and each of the causes of action, is moot.
  3. This action, and each of the causes of action, is not ripe.
  4. There is no jurisdiction over this action.
  5. There is no jurisdiction to challenge any final action to be made in the future because doing so would violate the doctrine of exhaustion of administrative remedies.
  6. This action, and each of the causes of action, seeks to improperly dictate how respondents should exercise their discretion.
  7. The closure of CCC is not subject to CEQA under the recently enacted Penal Code section 5032.
  8. Respondents have a ministerial duty to close CCC under the recently enacted version of Penal Code section 5003.7
  9. This action is improper under subdivision c of the recently amended Penal Code section 2067.
  10. There is no standing to challenge compliance with the requirement on former Penal Code section 5003.7 that a notice be provided to the budget committees of the legislature.

The state asks the court to dismiss the petition, dissolve the preliminary injunction, that the city take nothing, that a judgement be entered in the state’s favor and against the city, that the state be awarded their court costs of suit, including any costs of preparing any administrative record, and the court grant any other appropriate relief in favor of the state.

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Respondent’s Response to Court’s Order to Provide Agreement of Counsel Regarding the Renewed Demurrer
On July 18, the court ordered the state to file a statement that both parties “are in agreement concerning the renewed demurrer.”

According to the state, the attorneys from both sides do not agree, but that agreement is not necessary because the requirements for the state to renew the demurrer have already been met.

According to the court document, “In its petition, the city of Susanville asserts that CDCR’s announcement proposing the closure of the California Correctional Center was not done in compliance with either Penal Code section 5003.7 or the California Environmental Quality Act. On June 30, 2022 the governor signed Assembly Bill 200 which repealed and replaced section 5003.7 and now unequivocally commands CDCR to close CCC. The bill also added section 5032 to the Penal Code to exempt prison closure from CEQA requirements. Based on this change in the law, Respondents have met the requirements for renewing the demurrer.”

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Memorandum of Points and Authorities in Support of Renewed Demurrer
In this document the state’s attorneys offer support for their argument for the renewed demurrer due to the changes in state law.

They allege the city fails to state a prima facie claim for mandamus relief under Penal Code section 5003.7; that the CEQA cause of action fails to allege a basis for mandamus relief because CEQA does not apply to prison closures; and “Based on recently enacted legislation, the petition fails to state a prima facie claim for relief and neither of the city’s claims can be cured by amending the petition. Accordingly, the renewed demurrer should be granted without leave to amend, and the preliminary injunction be dissolved.”

Declaration of Heather M. Heckler Re Renewed Demurrer Meet and Confer
According to this document, “Counsel were unable to conduct a meet and confer to discuss the grounds for Respondent’s renewed demurrer.”

Heckler said she left telephone messages for Long on July 5 and July 11 seeking to arrange a meeting, but Long did not respond. On July 11 Hecker sent Long an email in which she advised, “if I did not hear back by Thursday, July 14, 2022, I would be filing the renewed demurrer.” Heckler said Long responded and indicated she would be on vacation the last two weeks of July and to “coordinate with her office.” Heckler said she advised Long’s office she was able to meet with them, but she received no response.

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On July 13, Heckler said she sent a follow-up email to Long and others that she had not heard back about the meet and confer and would file the renewal of the demurrer as she said she would. By July 18, she still had not received a response.

Upcoming court dates
According to the court file, a Case Management Conference is scheduled for 9 a.m. Tuesday, Aug. 2 and hearing at 9 a.m. Aug. 12 in Lassen Superior Court.