At first blush, it might seem an easy and reasonable determination. A retired judge assigned by the California Judicial Council to hear the lawsuit filed last July by the city of Susanville against the California Department of Corrections and Rehabilitation, et al regarding the proposed closure of the California Correctional Center in Susanville because the judge said the case was so complex he wanted a “special master,” later referred to as a “referee,” to help him sort out the case.
Here are some details from blistering court documents filed by the state’s attorneys suggesting the judge’s decision to appoint a referee is neither easy nor reasonable. These documents also touch on many issues regarding the case.
City attorney Margaret Long has referred Lassen News to Dan Newton, Susanville’s city administrator, for comment on the city’s lawsuit. Lassen News’ efforts to obtain a comment from Newton for this story proved unsuccessful by deadline.
On April 15, 2022, Moody appointed Harvey L. Leiderman as referee in the case. Leiderman responded with a “Certification by Referee” filed with the court May 2, 2022.
In the certification, Leiderman acknowledged he is a licensed attorney in good standing who would accept the appointment and abide by all the appropriate Rules of Court.
But two days later — May 4, 2022 — state attorneys objected to Leiderman’s appointment.
According to court documents, the state objected to the court’s assignment of the mandatory case management conference with Leiderman as “beyond the scope of Code of Civil Procedure section 639, subdivision (a) and an improper delegation of judicial authority.”
The state also objected to Leiderman’s service as referee because he allegedly “has not fully complied with his obligation … to timely make certain disclosures.” They allege Leiderman’s firm “is prosecuting a half-million dollar attorneys’ fee award” that if successful would be paid by CDCR.
“It appears that Mr. Leiderman’s law firm — and presumably Mr. Leiderman himself, a Reed Smith partner — has a vested interest in, and stands to benefit financially … ” should his firm win the case, the state argues.
Case management conference
The state’s attorneys also argued Leiderman’s request to “discuss case management logistics” should be deferred until the state’s demurer is adjudicated, characterizing the request as “procedurally improper, but also impractical and a waste judicial and party resources … As the court recognized at the March 14, 2022 hearing, “If the demurrer is sustained, ‘the case is gone. It’s over.’”
California Environmental Quality Act
According to the state attorneys, the city’s CEQA claim is moot and not subject to amendment. In fact, “the city’s CEQA claim is incurably moot … ” because “CDCR is already performing CEQA environmental reviews of the proposal to close CCC, which is the very relief the city is petitioning the court to mandate. CDCR’s CEQA compliance renders the city’s claim moot, as no purpose would be served in directing respondents to do what CDCR is already undertaking. Dismissal is necessary because there is no longer an existing controversy upon which the court can grant effectual relief.
“Nor can the defect be cured by amendment as the city cannot litigate CEQA until CDCR’s environmental review is final and the city has exhausted administrative remedies.”
According to the CEQA EIR timeline released earlier this year, the review was announced Jan. 11, 2022; a 30-day review period closed Feb. 14, 2022; a draft EIR would be prepared and released summer of 2022; 45-day review period would conclude summer 2022; a final EIR, including response to comments, late summer 2022; and CDCR EIR final certification, fall 2022.
“To proceed,” the state argues, “the court would have to impermissibly speculate … the EIR’s outcome and CDCR’s final determination on the project … and any challenge to the future EIR will not be ripe until that review is completed and the city has exhausted administrative remedies.”
City has not stated a prima facie claim for relief under the Penal Code
The state argues, “the city failed to state a claim that CDCR violated its duty under the Penal Code by proposing CCC for closure. To state a claim for relief, the city must plead facts demonstrating CDCR failed to comply with a ministerial duty to perform a non-discretionary act and that it has a beneficial interest in the performance of that duty. Mandate cannot be used to compel an official’s exercise of his discretion in a particular manner or to require the official to reach a particular result.”
The state argues it complied with Penal Code section 5003.7 — an important element in the city’ lawsuit — because it provided formal written notice to both the budget committee and the Legislative Analysist’s Office on Jan. 20, 2022, as required.
While the city argues the state failed to comply with that Penal Code section “because it announced the proposed closure of CCC before it provided this notice, and that without advance notice of the proposed closure it was deprived of the opportunity to provide information concerning why the closure would be improper or detrimental,” the state responded, “Nothing in the language of the statute imposes such a duty, nor does the statute provide a potentially interested party the right to provide input concerning the proposed closure of a particular prison. Because CDCR has not violated any duty imposed by statute, the city has not stated a claim” for relief.
While the city argues the California Rehabilitation Center should have been considered for closure prior to CCC, according to the state attorneys, the city’s assertion “amounts to nothing more than a disagreement with CDCR’s discretion … ”
The state’s attorneys also cite Los Angeles County Professional Peace Officers’ Association v. County of Los Angeles — “Mandate will not issue if the duty is not plain or is mixed with discretional power or the exercise of judgement. And here the statute unambiguously provides for the exercise of CDCR’s judgement in weighing the various criteria in order to reach a conclusion on which prison to close.”
The state also responded to the city’s claim the decision “appears to be politically motivated” because “at a Susanville City Council meeting members of the public were told by anonymous high-ranking state employees that ‘Governor Newsom chose CCC because of Lassen County’s high support of the recall election.’ Again, this is a speculative and unsupported factual conclusion that must be disregarded. It is also wrong. Under the statue CDCR, not Governor Newsom, is charged with identifying two prisons for closure.”
While the city asserts “it has standing because it has a beneficial interest in ensuring that CDCR complies with CEQA and in its ability to ‘maintain its core municipal functions on behalf of the citizens it serves,’” “neither of these interests pertain to section 5003.7’s notice provision,” according to the state attorneys.
No administrative record
State attorneys said — in response to a request from Leiderman to discuss “obtaining and assembling the administrative record,” and the city’s assertion the state must provide an administrative record of how the decision to close CCC was made — because “CDCR’s exercise of discretion in proposing CCC’s closure was a decision not subject to public review or statutorily mandated procedures, an administrative record does not exist. Thus, there is no administrative record to produce for either of the city’s claims.”
While the city has argued an adjudication of the state’s demurrer is “prejudicial” without an administrative record, the state counters, “The administrative record is plainly irrelevant to the court’s inquiry on the demurrer.”
The state attorneys responded to the city’s “viable cause of action for declaratory relief” by writing “This contention is puzzling.” They argue the city has not “pled a course of action nor is it sought as a form of relief. Thus, declaratory relief is not even an issue here … Moreover, declaratory relief is unavailable here since it is ‘wholly derivative’ of the city’s inadequate statutory claims.”
According to the Cornell Law School’s website, “Declaratory relief is essentially a remedy for a determination of justiciable controversy. This occurs when the plaintiff is in doubt regarding their legal rights. However, declaratory relief is an equitable remedy in that it may not always be offered if the situation does not warrant it.
“Declaratory relief refers to a court’s judgment stating the rights of parties without ordering any specific action or listing awards for damages. When a party is requesting a declaratory judgment, the party is seeking an official declaration regarding the status of the controversy in issue. Moreover, the point is that the resolution of the declared rights of all parties involved will hopefully prevent further escalation of the conflict or even further litigation. An example of this in a case involving contracts would be a party seeking an interpretation of the contract to determine their rights. Another example would be an insured individual seeking a specific determination of their rights and surrounding circumstances regarding insurance coverage under a specific policy.”
Monitoring respondent’s compliance with the preliminary injunction
According to the state’s attorneys, “Answering Mr. Leiderman’s request to discuss ‘monitoring respondent’s compliance with the preliminary injunction,’ respondents submit it would be inappropriate for the court or referee to engage in any type of monitoring as there has been no judicial finding of noncompliance and the city has yet to provide any evidence of noncompliance. The city has accused the respondents of violating the preliminary injunction three times without any evidence of noncompliance.”
Document production, management and access
According to the state’s attorneys, “The city has not propounded any discovery.”
Attorneys from both sides must file a response to Moody’s (proposed) Order on Demurrer by July 20, 2022. No future court dates have been announced.