Susanville’s CCC lawsuit may plow new constitutional ground

The city of Susanville’s lawsuit against the California Department of Corrections and Rehabilitation et al over the proposed closure of the California Correctional Center may venture into new legal territory.

At the conclusion of this morning’s proceeding, Friday, Aug. 26, Visiting Lassen County Superior Court Judge Ralph F. Moody asked attorneys on both sides to file briefs by 9 a.m. Friday, Sept. 2 contemplating how the city’s substantive rights may have been violated if officials from CDCR — the respondents in this case — played a role in drafting the legislation the state attorneys now argue makes the city’s lawsuit to block the proposed closure of CCC “moot.” Moody’s analysis led to the question of whether the city of Susanville has substantive rights or simply administrative / procedural rights in this case.

Moody put the city’s attorneys on the hot seat and said, “It’s up to them to tell me what substantive rights these (new) statutes take from them,” but he added the state’s actions seem “unconscionable to me if this went down as I suspect.”

Moody said the problem he sees is that the legislature changed the law specifically to address the closure of CCC — which he referred to as “a smart bomb” on this case. He said the part of the case that hasn’t been explored yet is — what are the legal ramifications if CDCR officials “colluded, collaborated or instigated” the legislation to close the Susanville prison?

The judge said the circumstantial evidence is “almost overwhelming” that CDCR had a role in “the preparation, creation and writing of this legislation” and that the department’s “only interest” was to close CCC, despite Lassen County Superior Court Judge Mark Nareau’s order that the CDCR take no further steps to close the Susanville prison until the lawsuit had been resolved.

Deputy Attorney General Heather Heckler said the legislation also addressed the closure of juvenile justice facilities as well, so it wasn’t just aimed at CCC.

The judge acknowledged the court has not taken any further steps to investigate who wrote the legislation, but if CDCR had a role in its creation, the U.S. v. Klein case’s separation of powers issue remains. And he wondered about the validity of legislation when a state actor is “self-dealing” and creating legislation for its own benefit. He said that raises separation of powers and due process issues, even though there has never been a case citing Klein to determine legislation unconstitutional.

In fact, Moody wondered if a whole set of factors likely rendered that legislation unconstitutional. Moody said Heckler is right — the legislature can exempt a prison from a CEQA review, but the question is, did CDCR “collude and collaborate” with the legislature in drafting legislation that undermined the city’s lawsuit. “And if they did,” he said, “I think we’ve got a problem.”

He called that development, “an extremely ugly situation” and he added he didn’t see how the state “could get away with it constitutionally.”

Heckler said the California legislature has the “absolute authority” to change the law, and there’s “not one case where this was improper.” She said the legislature passed the law, not CDCR, and the legislature is not a party to this action.

“But the department is,” Moody responded.

Heckler did not acknowledge or deny CDCR’s alleged role in drafting the legislation, but she said nothing prohibits CDCR officials from lobbying the legislature or exercising their free speech rights.

“How could that violate an injunction?” she asked.

Moody said CDCR was ordered not to take further action to close CCC, and there is no state authority for the department to help write legislation to impose upon an existing lawsuit.

Moody said he completely agreed with the state attorneys’ argument regarding the Sagaser v. McCarthy case from 1986 — which he called “stunning similar” — in which the state legislature changed the law regarding the construction of a prison near the city of Avenal — except for CDCR’s involvement with writing the recent legislation that undermined the city’s on-going legal action. In fact, he said if the state had cited Sagaser earlier, the case might have ended then before this issue even arose.

According to the Sagaser decision, “While appellants sought relief in the courts, Assembly Bill No. 2251 was introduced and passed by the legislature; it was signed by the governor on Sept. 24, 1985. The 1985 legislation found in chapter 931, hereafter referred to as AB No. 2251, exempted three proposed prison sites, including one near Avenal from compliance with the requirements of California Environmental Quality Act. The bill carried an urgency clause and became effective immediately upon the governor’s signing the legislation.”

Citing Lee v. Lost Hills Water District, the court ruled, “no vested right stems from CEQA provisions and no constitutional duty arises on the part of a court to provide relief to those affected by the preparation of an EIR … Because we hold that AB 2251 is constitutional and valid legislation, and because the validity of AB 2251 is the only issue before us, we must dismiss the appeal as moot. Appellants misconceive the very nature of the CEQA provisions. The rights derived from the environmental quality act are not of constitutional dimension and the legislature constitutionally may eliminate any of its requirements.”

Moody asked Heckler if the Nareau’s writ should be “dissolved” because “all it confers are administrative rights to do — I don’t know what.”

Heckler said that analysis was correct. She said the legislature has the authority to regulate the CEQA process, and the legislature has that right according to the California Constitution. She also noted the different requirements of the federal and state constitutions.

“CEQA isn’t a right,” Heckler said. “The legislature can take away CEQA protections at any point.”

Margaret Long, the city’s attorney disagreed. She said if the legislature can change the law to do away with an on-going lawsuit, the people have no ability to protect themselves from change and are left without due process, and there would be no checks and balances. She admitted the legislature can change the law and take those CEQA rights away, but “they can’t do it to win a case.”

Heckler countered if the city had a right to a CEQA review, “it’s not enshrined forever,” and in any regard the city did not have or has ever pleaded a substantive right.