Valdivia, et al v. Schwarzenegger, et al

Filing 1823

ORDER signed by Judge Lawrence K. Karlton on 5/6/13: Within twenty-one (21) days of entry of this order, the parties are DIRECTED to file brief. The Special Master is DIRECTED to stay filing the Fourteenth Report on the Status of Conditions of the Remedial Order, pending further order of the court. (Kaminski, H)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JERRY VALDIVIA, ALFRED YANCY,
and HOSSIE WELCH, on their own
behalf and on behalf of the class
of all persons similarly situated,
NO. CIV. S-94-671 LKK/GGH

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Plaintiffs,
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v.

O R D E R

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EDMUND G. BROWN, JR., Governor of
the State of California, et al.,
Defendants.

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/
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The Thirteenth Report of the Special Master on the Status of

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Conditions of the Remedial Order, addressing activities between

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February

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(“Thirteenth

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recommends findings of substantial compliance in thirty-five of the

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forty-four requirements delineated in the court’s previous orders,

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and findings of partial compliance in the remaining nine.

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and

October

2012,

Report,”

ECF

was
No.

filed
1783.)

on
The

December

19,

Thirteenth

2012.
Report

Both plaintiffs and defendants have filed objections to the
Thirteenth Report.
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A. Summary of plaintiffs’ objections

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Plaintiffs

object

to

the

Special

compliance

in

the

areas

Master’s

substantial

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determination; (ii) notice of rights and charges; (iii) appointment

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of

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extensions; (vi) remedial sanctions; (vii) translated forms; and

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(viii) internal oversight.

(iv)

probable

cause

(i)

probable

of

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counsel;

of

findings

hearings;

(v)

cause

revocation

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Plaintiffs’ objections are of three types: (i) that the

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Special Master failed to “articulate or apply the applicable legal

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standard for substantial compliance”; (ii) that in certain areas,

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“the

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conclusions of law, even under a lowered standard for substantial

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compliance”;

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standard he applied, or even disregarded the specific terms of the

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[Valdivia] Injunction, in order to reach a finding of substantial

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compliance with some requirements of the Injunction.” (Plaintiffs’

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Objs., ECF No. 1794, at 11-13.)

Special

Master’s

and

(iii)

findings

that

of

“the

fact

Special

do

not

Master

support

changed

his

the

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Plaintiffs’ overarching policy argument is that it would be

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inadvisable to end court oversight prematurely, given the imminent

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transfer of authority over much of the parole revocation system

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from the state to the counties. Plaintiffs write:

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Any unwarranted compliance findings, and the
accompanying withdrawal of supervision by the Special
Master, would come at the worst possible time for the
Valdivia class. Defendants are in the midst of
implementing a transition to the projected July 2013
transfer of part of the parole revocation process to
the Superior Courts under California’s “Criminal
Justice Realignment.” It is incorrect, and hazardous
to the rights of the class, to see this transition as
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a reason to rush to find Defendants in compliance and
end the Special Master’s scrutiny of revocation
procedures. To the contrary, the impending transition
to a new system under [Realignment] necessitates
continued oversight of California’s parole
system . . . . Although Defendants remain under a
continuing obligation to provide notice to Plaintiffs
and the Special Master regarding policy and procedure
changes for parole revocation, they have provided no
policies or procedures for the July 2013 transition.
Under [Realignment], Defendants will remove two major
underpinnings of their previous compliance effort –
the attorneys employed by the California Parole
Advocacy Project (CalPAP) and the computerized
Revocation Scheduling and Tracking System (RSTS) – and
institute components, most notably flash
incarceration, which pose new hazards for parolees’
constitutional rights. (Plaintiffs’ Objs., ECF No.
1794, at 13-14) (internal citations omitted).

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B. Summary of defendants’ objections

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Defendants object that the Special Master improperly relied

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on

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non-compliance. Defendants further object to the Special Master’s

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finding

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requirement that probable cause hearings be held in a timely

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fashion, contending that he has reached this conclusion based on

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a mischaracterization of the data. Finally, defendants object to

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the Thirteenth Report’s recommendations that requirements found in

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substantial compliance be subject to any further monitoring.

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(Defendants’ Objs., ECF No. 1790, at 2.)

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C. Analysis

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anecdotal

that

Looming

evidence

they

over

are

the

to

reach

only

in

conclusions

partial

Thirteenth

about

compliance

Report’s

systemic

with

findings

the

and

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recommendations, and the parties’ objections, is the anticipated

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July 1, 2013 transfer of significant elements of the parole system

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from the state to the counties as part of the reorganization of
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California’s criminal justice system, known as “Realignment.” It

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is the court’s understanding that elements of the parole process

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currently

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Permanent Injunctive Relief and the court’s further orders herein

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(collectively, the “Valdivia Remedy”) will now be handled by county

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personnel. Among other changes, as of July 1, 2013, (i) petitions

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for parole revocation will be filed with county Superior Courts

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rather than with the state Board of Parole Hearings; (ii) parole

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violations may be handled without court involvement through “flash

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incarceration” of up to ten days in county jail; and (iii) indigent

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parolees facing revocation will be represented by public defenders

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(or court-appointed defense attorneys) rather than California

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Parole Advocacy Program attorneys.

addressed

by

the

March

2004

Stipulated

Order

for

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In particular, the court is concerned that California’s post-

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July 1, 2013 parole system may be sufficiently different from the

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existing system so that the conditions prompting the court’s

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judgment are no longer relevant, thus requiring dismissal of this

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case. This lawsuit, and the Valdivia Remedy, address a parole

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system that functions largely as an administrative system under the

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auspices of the state’s Executive Branch. It appears that after

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July 1, 2013, significant portions of the parole system will become

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the responsibility of county authorities, with parole revocation

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determined by the state’s Judiciary. Realignment gives rise to

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mootness concerns, as, due to these changes, this matter may no

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longer present a live “case or controversy” under Article III, § 2

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of the Constitution. If Realignment renders Valdivia moot, the
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class

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dismissed, and any concerns about due process protections in

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California’s

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subsequent lawsuit.

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herein

While

will

have

post-July

mootness

is

to

1,

be

2013

not

decertified

parole

and

system

jurisdictional,

this

lawsuit

addressed

the

court

in

has

a

an

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obligation to determine whether it retains jurisdiction over the

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cases in its docket. Jacobus v. Alaska, 338 F.3d 1095, 1103 (9th

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Cir. 2003). While the court is mindful that a Justice of the

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Supreme Court opined that “the recent Article III jurisprudence of

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this Court in such areas as mootness and standing is creating an

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obstacle course of confusing standardless rules to be fathomed by

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courts and litigants . . . without functionally aiding in the

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clear,

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presented,” Kremens v. Bartley, 431 U.S. 119, 140 (1977) (Brennan,

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J., dissenting), I “cannot [maintain] jurisdiction over a claim to

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which no effective relief can be granted.” Headwaters, Inc. v.

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Bureau of Land Mgmt., 893 F.2d 1012, 1015 (9th Cir. 1990). To the

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extent that significant portions of the parole system will soon be

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the responsibility of the counties and the state Judiciary, I am

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unsure whether the Valdivia Remedy can even address due process

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considerations arising thereunder.

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D. Conclusion

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Accordingly, the court hereby orders as follows:

adverse

presentation

of

the

constitutional

questions

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[1] Within twenty-one (21) days of entry of this order, the

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parties are DIRECTED to brief the court on the following:

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(a) As of July 1, 2013, which elements of the parole

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system that were formerly the exclusive responsibility

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of defendants will now be the exclusive responsibility

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of county authorities and/or the state judiciary?

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(b) As of July 1, 2013, which elements of the parole

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system that were formerly the exclusive responsibility

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of defendants will now be the shared responsibility of

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defendants, county authorities, and the state judiciary?

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What will defendants’, county authorities’, and the

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state judiciary’s respective responsibilities be as to

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these shared elements?

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(c) Will defendants bear responsibility for elements of

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the parole system that are newly-created by Realignment,

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such as “flash incarceration”?

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(d) Is Valdivia moot as a result of Realignment?

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(e) If Valdivia is not moot, in what ways should the

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class definition and/or the Valdivia Remedy be altered

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to reflect Realignment’s changes to the parole system?

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Reply briefs are due fourteen (14) days after opening briefs.

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Opening briefs may each be no longer than thirty (30) pages

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in

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evidence. Reply briefs may each be no more than fifteen (15)

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pages in length. The court will at this time defer ruling on

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the findings and recommendations in the Thirteenth Report.

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[2] The Special Master is DIRECTED to stay filing the

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Fourteenth Report on the Status of Conditions of the

length,

exclusive

of

any

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accompanying

documentary

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Remedial Order, pending further order of the court.

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IT IS SO ORDERED.

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DATED: May 6, 2013.

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