State takes aim at the judge — requests ‘expedited ruling’ by noon Wednesday, Sept. 7 in CCC case, threatens Court of Appeal action

If state attorneys win the day at the next as yet unannounced proceeding in Lassen Superior Court, the city’s lawsuit against the California Department of Corrections and Rehabilitation et al will finally be over. According to a Sept. 2 filing, the state attorneys suggest the case has continued as long as it has in order to address concerns raised by the judge himself and they ask the court to “immediately dissolve the injunction and immediately dismiss this case.”

According to the state’s filing, failure to dissolve the preliminary injunction and dismiss the city’s petition would “disregard clear law and amount to an abuse of the court’s discretion.”

According to a Sept. 2 filing by Heather Heckler, California deputy attorney general, “ … the court must dissolve the preliminary injunction and dismiss this case as moot. The city has pointed to no authority authorizing this court to ignore or otherwise reject validly enacted and constitutional statutes mandating the closure of the California Correctional Center and exempting prison closures from compliance with the California Environmental Quality Act. Despite both parties having already briefed the constitutionality of this legislative change in the law, the court allows the city one final chance to uncover some authority to support the argument the legislature might have improperly deprived the city of some ‘substantive right’ by enacting case-ending legislation. As explained before and once again below, none exists.”

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.”

Heckler acknowledges the city may have had “a beneficial interest” in seeking to require CDCR to comply with the city’s “interpretation” of the effect of the repeal of former penal code sections that undermined its lawsuit, but that interest “giving the city standing to bring the mandamus writ does not transform into some substantive or constitutional right that would prohibit the legislature from changing the law on which the writ is based … Indeed, such a theory would turn every statutory right into an inalienable right divesting the legislature of its core power to pass, amend and alter laws.”

Heckler argues while appellate court decisions uphold the legislature’s power when it “passes laws that moot pending litigation … the court questions the legitimacy of ‘retroactive’ legislation that terminates pending litigation, stating that it knew of no statutory authority authorizing such legislation … Introducing the concept of retroactivity as a bulwark against it does not change this result.”

Heckler also challenged the continuing validity of the preliminary injunction issued by Lassen Superior Court Judge Mark Nareau.

“Likewise, this court’s preliminary injunction — which can only be based on existing law — creates no independent rights immune from legislative action.”

Heckler also addressed the issue of the effect of the alleged participation of CDCR officials in drafting the legislation that undermined the city’s lawsuit. She argued “nothing in the preliminary injunction prohibits such activity. But even assuming it did, such an injunction would violate the constitutional separation of powers, and in any case a violation of the injunction would not invalidate properly enacted statutes. Furthermore, only hearsay, rumor and speculation have been offered to support any alleged violation, none of which is admissible.”

According to Heckler, “On its own motion, the court has twice asked for briefing on whether the statutes violate the separation of powers or impermissibly take away some right held by the city in violation of due process. The department is aware of no authority (and the city has provided none) impugning the constitutional authority of the legislature to enact laws that result in terminating pending litigation. Indeed, this court must presume the constitutionality of duly-enacted statutes, but instead the court beseeches both parties to seek out all legal theories that could possibly cast a doubt on the laws’ validity without even a prima facie justification.”

In fact, Heckler responded to the judge’s concerns about CDCR’s alleged participation in writing the legislation that undermined the city’s lawsuit — an action visiting Lassen County Superior Court Judge Robert F. Moody called, “an extremely ugly situation” that he didn’t think the state “could get away with it constitutionally.”

Citing the Anderson appellate court decision Heckler wrote, “There is no authority supporting the court’s contention that if someone employed by the department in any way participated in the enactment of the penal code section at issue, such an act would violate the preliminary injunction … A court may only hold a party in contempt based on a ‘clear, intentional violation of a specific, narrowly drawn order … ’ and ‘a party cannot be held in contempt for violating a court order after the legislature amends the law which the court order was based, even if that party ‘supported the legislation, or even authored the draft that was enacted, (because the party) did not and could not enact it.’”

An Heckler argued in any case, “… the city has only proffered hearsay, rumor and speculation to support its contention that a violation occurred, none of which is admissible.”

Heckler advises the court, “The task of closing a state prison is monumental … this court’s injunction continues to prevent the department from complying with its statutory duty to close CCC, placing the department in jeopardy to failing to meet the legislature’s June 2023 closing deadline and thereby violating the law. Without expedient relief from this court, the department will have no choice but to seek relief from the Court of Appeal.”