State opposes appointment of special referee in CCC case

The on-again, off-again, on-again battle between visiting Lassen County Superior Court Judge Ralph Moody and the California Department of Corrections over the appointment of a special master or special referee in the city of Susanville’s lawsuit to stop the closure of the California Correctional Center continues to rage.

On Aug. 5 Moody issued a minute order seeking the appointment of a special referee to investigate “whether a party engaged in improper conduct in the legislative process” regarding the city of Susanville’s lawsuit against the California Department of Corrections and Rehabilitation. Further the judge wants to investigate if the state has taken other steps to close the California Correctional Center in violation of an order issued in 2021 by Lassen County Superior Court Judge Mark Nareau.

Both parties had an opportunity to oppose Moody’s proposed order seeking to reappoint Harvey L. Leiderman as a special referee by Tuesday, Aug. 9. The city of Susanville did not oppose Leiderman’s appointment, but the state’s attorneys did.

The state’s response opens with, “There is no legal basis for a special reference in this case.”

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The state notes Moody’s two reasons for reappointing Leiderman — “a question of facts has arisen as to the implementation of two new statutes and whether a party improperly participated in the legislative process. Second, the court states a special referee is needed ‘to monitor whether or not there are or have been any other steps taken in furtherance of closing this prison,’” possibly violating Nareau’s order that the state take no further actions to close CCC until the case is resolved.

“Neither reason justifies the appointment of a special reference,” wrote the state attorneys.” Presently there is nothing before the court — no motion, no pleading, no declaration, no evidence of any kind — giving rise to a factual dispute regarding a party’s alleged ‘improper conduct in the legislative process’ that would support a special reference. Indeed, the absence of any such dispute suggests the court’s purpose is for the referee to act as the court’s investigator and to ferret out such facts that could give rise to such a dispute.”

Then the state’s attorneys also took aim at Moody’s second reason for the appointment.

“For similar reasons, the court’s second purported ground fares no better,” they wrote. “What is implicit in the court’s first reason is made explicit in its second — the court needs to appoint a referee to investigate whether respondents (CDCR) have taken steps to close the prison in violation of this court’s injunction.”

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According to the state attorneys, Leiderman’s appointment would fail to satisfy the legal requirements of Code of Civil Procedures sections 638 and 639 and further, citing Ruisi v. Thieriot, “The trial court has no power to refer issues other than those explicitly specified by statute.”

According to the state’s attorneys, Moody did not follow the correct procedure in suggesting Leiderman’s appointment.

They argue according to section 638, a special reference may explore “any or all issues in the action.” But when one party opposes the appointment, as the state has, section 639 applies and “the scope of a nonconsensual reference is quite limited … ”

According to the state, “Section 639 provides only five limited jurisdictions for a nonconsensual special referee appointment: (1) When the trial of issue of fact requires the examination of a long account on either side; in which case the referees may be directed to hear and decide the whole issue or report upon any specific question of fact involved therein. (2) When the taking of an account is necessary for the information of the court before judgment or for carrying a judgment order into effect. (3) When a question of fact, other than upon the pleadings, arises upon mother or otherwise, in any stage of action. (4) When it is necessary for the information of the court in a special proceeding. (5) When the court in any pending action determines that it is necessary for the court to appoint a referee to hear and determine any and all discovery motions and disputes relevant to discovery in the action and to report findings and make a recommendation thereon.”

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The state attorneys point out “no question of fact has arisen,” and the city has not presented any evidence of CDCR’s participation in writing the newly enacted statutes that repealed much of the basis of the city’s lawsuit.

They also argue, “There is no evidence presented to this court that respondents have violated the preliminary injunction in any way. And the city has provided no legal authority or analysis that even if CDCR officials participated in the legislative process as speculated, such actions would constitute a violation of the court’s injunctive order. In fact, the city has made no attempt whatsoever to explain how an order preventing CDCR from taking steps to close a prison is violated by participating in the legislate process that ratified a previous CDCR decision and directed CDCR to close a prison. Nor has the city explained how such an unreasonably broad reading of the injunction — one that would prohibit a state official’s participation in the legislative process — would be unlawful and enforceable.”

And they argue a special referee “cannot be appointed to investigate a party.” They argue they have filed a renewed and an ex parte application “to dissolve the injunction based on recently enacted legislation that renders the city’s claims moot. Although the court has sua sponte (of one’s own accord; voluntarily) raised the legal issue of whether the enactment of this legislation violated the separation of powers doctrine, the court recognized if this issue is resolved in the respondents’ favor, the case is over,” and because the court has already set a briefing schedule and hearing date to address this issue, “the appointment of a special referee is improper … Further, since a special reference is statutorily prohibited from helping the court resolve a legal question, there is no justification for appointing a special reference until the parties know whether the litigation will go forward.”

They suggest the court should follow the Code of Civil Procedures section 640(b) in which each party nominates three potential references and “from that pool the court can select any nominee ‘against whom there is no legal objection.’”

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Finally, the state’s attorneys oppose Leiderman’s appointment because “Mr. Leiderman appears to have a conflict.” They question the public’s perception of Leiderman’s “integrity and impartiality” because his law firm (of which he is a partner, but not the attorney on the case) is involved in a case against CDCR and soon could receive $500,000 in fees from the department.

There is no date listed when Moody might consider or rule on the state’s objection listed in the Lassen County Superior Court calendar at deadline; however, both sides must file briefs on the separation of powers issue by Tuesday, Aug. 16. Reply briefs are due by Tuesday, Aug. 23. The court will hold a hearing on those pleadings Friday, Aug. 26.