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L.H v. Schwarzenegger

November 25, 2009

L.H, ET AL., PLAINTIFFS,
v.
ARNOLD SCHWARZENEGGER, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Chase Riveland Special Master

THIRD REPORT OF THE SPECIAL MASTER ON THE STATUS OF CONDITIONS OF THE STIPULATED ORDER

Background

The Plaintiffs in this case filed their Complaint with the Court on September 13, 2006. The Court certified this case as a class action by Order dated February 28, 2007.

On September 19, 2007, the Court granted partial summary judgment in favor of Plaintiffs, holding that California's juvenile parole revocation system, by failing to provide a timely probable cause hearing, violated the due process rights of the Plaintiff class as those rights were described in Morrissey v. Brewer. On January 29, 2008, the Court held that Defendants' failure to appoint counsel for all juvenile parolees violated the due process rights of the Plaintiff class, according to precedent set in Gagnon v. Scarpelli. In the same order, the Court also found that Defendants' policies and practices violated the Americans with Disabilities Act (ADA) and the Rehabilitation Act. The Court ordered the Defendants to:

(1) begin appointing counsel to represent juvenile parolees at parole revocation hearings no later than February 15, 2008, and to provide that counsel with access to confidential contact space and the necessary files sufficiently in advance of the hearing to allow adequate preparation,

(2) allow parolees to obtain counsel of their own choosing, who shall be able to represent clients under the same terms as appointed counsel, and Defendants are to notify the parolee's counsel of record or public defender when a hold is placed,

(3) ensure effective communication and provide necessary accommodations, and

(4) develop sufficiently specific policies and procedures to ensure continuous compliance with all of the requirements of the American with Disabilities Act during revocation proceedings.

Chase Riveland and Virginia Morrison were appointed as Special Master and Deputy Special Master, respectively, on May 22, 2008. The parties, on June 13, 2008, submitted a Stipulated Motion for Preliminary Approval of Class Settlement. The Court granted the motion on June 17, 2008 and approved a Stipulation and Order for Permanent Injunctive Relief on October 7, 2008 (hereafter "Stipulated Injunction").

On April 2, 2009, the parties filed a Stipulation and Order Re: Plaintiffs' Motion to Monitor Defendants' Compliance with the Stipulated Order for Permanent Injunctive Relief.

The Court entered a "Stipulation and Order Requiring Defendants to take Immediate Steps to Identify and Track Juvenile Parolees with Disabilities and Effective Communication Needs, dated July 7, 2009. The parties also negotiated a stipulation modifying several aspects of policies and procedures, which this Court signed on September 10, 2009.

Special Master Activities

The Special Master assisted the parties in resolving certain ADA and effective communication issues. The team observed the Defendants' task force and participated in all-parties' information update meetings. The team observed proceedings at Heman G. Stark Youth Correctional Facility and Los Angeles and Santa Rita county jails. Those proceedings were conducted by three hearing officers and consisted of seven probable cause hearings, three revocation hearings, an optional waiver review, one revocation extension hearing, and one exit interview. The team did not attempt to observe the service of notice on any parolees. In addition to the revocation hearings seen in person, the Mastership analyzed recorded and written materials for another 28 revocation hearings and two revocation extension hearings, demonstrating the work of seven hearing officers.

Scope and Approach

This report discusses observations and activities spanning May 2009 through September 2009, collectively referred to as "the Round." References to the Special Master's activities frequently include the actions of a member of his team.

A number of mandates consist both of procedural due process requirements and due process in how they are conducted; all aspects are included in the Special Master's assessment. The term "mainstream cases" refers to those revocation actions that follow the normal course; it excludes cases with special circumstances, such as not in custody hearings, extradition, parolee time waivers, optional waivers, and postponements.

For many of the requirements, the Special Master's team conducted a study based on revocation packets, hearing documents, and recordings provided in Defendants' monthly document productions, in combination with those same documents produced for the hearings observed during the team's site visits. Since these were not randomly chosen, there are limitations on the representativeness of this sample. In other instances, the team relied on reports generated by Defendants' revocation database, Plaintiffs' monitoring reports and analyses, reports or studies conducted by the CalPAP attorney panel administration, and sometimes documents underlying these sources.

Policies and Regulations

The parties agreed that within 90 days of the parties signing the Stipulated Injunction, and no later than September 15, 2008, the Defendants were to develop sufficiently specific draft policies, procedures, and plans to:

· ensure that revocation proceedings are in continuous compliance with all of the requirements of the Constitution and applicable statutes,

· address a method for accurately tracking the timeliness of hearings and other steps in the parole revocation process,

· include the timely provision of accommodations for juvenile parolees' disabilities and effective communication needs,

· provide for not in custody hearings, dual commitments, and parole exit meetings; and

· address such disputed issues as telephonic probable cause hearings, circumstances constituting good cause for delayed hearings, and remedies for untimely hearings.

The parties have reached agreement on a substantial number of policies, and continue negotiation on others. Policies and procedures have been signed and distributed concerning the overall revocation process, attorney standards, revocation extension, and exit interviews. A revised policy concerning disabilities and effective communication is pending dissemination. The parties memorialized further agreements in the stipulation and order referenced supra.

Plaintiffs strongly emphasize that the distributed policies contain provisions to which they object, and they see complete policies, consistently trained and applied, as a critical foundation for implementation and thus overdue. The parties have not collectively determined whether all necessary policies are in process or completed.

Notice of terms: During 2008, Defendants reported detailed methods used to provide posters and notices to DJJ, CDCR, and county jail facilities. Plaintiffs noted that posters were absent in two of Defendants' facilities they visited*fn1 and Defendants reported they redistributed posters in English and Spanish in October 2009.*fn2 Neither the parties nor the Special Master have undertaken a review of whether posters are in all required locations within these facilities. Since Defendants reported that DJJ facilities requested 90 posters after the initial distribution, it is likely that many are available to parolees, but a review would be useful.*fn3

Regulations: Defendants have begun the lengthy, complex revision and approval process on many regulations affected by the LH remedy, with multiple staff tasked with this responsibility. Plaintiffs have provided comment to enhance those revisions, and they note a regulation set for which revisions have not yet been produced.

Stipulated Injunction Requirements

The Defendants coordinate a variety of divisions and external entities in working toward fulfilling the requirements of the Stipulated Injunction. The greatest accomplishments are in establishing procedures and systems well-designed to manage the work flow in service of protecting parolees' rights. Likewise, Defendants have implemented mechanisms for self-correction that are critical to reaching and maintaining compliance. Several of these systems are operating well, and more is needed to satisfy the Court's orders.

The budget crisis carries particular risk for cases like LH, where compliance is heavily dependent on deadlines. Work weeks shortened by furloughs, layoffs resulting in staff turnover and heightened training needs, and hiring limited to finite terms all combine to create substantial pressure on staff dedicated to meeting timeframe requirements. In a small department such as the Juvenile Parole Board, the loss of half of the clerical staff, for example, is keenly felt. While timeliness numbers do not yet appear to be impacted, Defendants will likely need to be increasingly creative to fulfill their obligations, and the Court will need to closely monitor the budget's effects.

Parole Agent and Supervising Parole Agent conference within two business days (¶ 27):

Defendants' revocation database shows that this function is operating well; 94% of these interactions have been timely for the mainstream population, an improvement over the prior Round. Most of the late cases were completed the following day, and the longest time to completion was nine days.*fn4

All extradition cases were also timely at this step.*fn5 For parolees referred for not in custody hearings by a parole unit, however, conferences for 71% were timely,*fn6 though late cases generally completed within an additional one to two business days.

It appears that the parole agent-supervisor conference resolved about 13% of the 468 non-extradition holds.

Notice of charges and rights within three business days (¶ 28):

In the Special Master's revocation packet review, the service documents were present in all but two cases, suggesting that the parolees received the charges and notice of their rights. The third form memorializes efforts to identify disabilities; these were more problematic, but will be discussed infra.

To satisfy due process, the notice must contain a summary of the conduct underlying the charges sufficient for the parolee to prepare a defense. In the notices the Special Master reviewed, about 62% of summaries ranged from reasonable to very good. Another 10 cases yielded mixed results -- some charges were reasonably detailed while other charges were inadequately described. The remaining seven did not describe the conduct.*fn7 Neither the Special Master nor Plaintiffs have observed service as it took place and therefore do not have a sense of the due process during that communication.

As to timeliness, about 87% of notices of nearly all populations were completed within the required time.*fn8 Nearly all late cases were served within four days after the deadline.*fn9 Not in custody cases were served within 10 business days, with one exception, consistent with Defendants' policy. One extradition case may not have been served.

In 12 cases, Defendants encountered barriers in their initial attempts to serve parolees.*fn10 All but one of the initial attempts were timely, and four cases were ultimately served timely on a later attempt. The remainder were completed one to two days past the deadline. The reasons they were untimely were all reasonable, with the exception of lack of access to two parolees housed in administrative segregation. These numbers reflect a conscientious effort to serve parolees quickly despite the obstacles encountered.

Non-acceptance of written admissions to a violation of parole, or waivers of hearing rights or the right to counsel, made prior to the juvenile parolee meeting with counsel (¶ 17, 31):

Revocation packets indicate that Defendants have ceased the routine practice of asking parolees to make written admissions during the investigation. Plaintiffs continue to object to the parolee's parole agent taking oral statements at the service of notice of rights and charges and during the investigation, before counsel is appointed;*fn11 the parties disagree as to whether this practice is permissible under the Stipulated Injunction.

Requirements concerning attorney representation Provision of counsel during revocation proceedings (¶ 15):

All indications are that attorneys have consistently been appointed for all parolees taken into custody on a new parole hold since February 2008. It would be useful for Defendants to devise a system to detect whether any appointments are overlooked.

Timely appointment of counsel (¶ 16):

In the initial months of the Round, timeliness in DJJ providing the information necessary to appoint attorneys remained poor. It improved significantly, in absolute numbers and percentages, in each month from July forward. The overarching compliance rate for the Round was 73% for the mainstream population, though compliance is unknown for not in custody and extradition cases.*fn12 There is insufficient information at this time to determine the effect this may have had on attorney preparation or rescheduling of hearings.

At the time of attorney appointment, provision of date, time, and location of the hearing (¶ 16):

Defendants are compliant with this provision, as CalPAP reports that it is provided these pieces of information at the same time it receives the packets.

At the time of attorney appointment, provision of a copy of all the evidence on which the State intends to rely or which may be exculpatory; evidence not provided with at least two days' notice shall be excluded unless the state shows good cause (¶ 16, 19):

The Special Master did not observe any instances of late-produced evidence to which counsel objected. In one hearing recording, the hearing officer reviewed the parole agent's supervision notes, which were not included in the revocation packet. During the previous Round, attorneys said that this function was operating well, and it appears that that generally continues.

At the time of attorney appointment, provision of relevant educational, mental health and disability identification and source documents (¶ 16):

The parties took significant steps on this highly controversial issue during the Round. They agreed on a method for Defendants to conduct a large-scale review of files and electronic databases to incorporate disability information for lawyers and others into a summary form. Defendants reported that they began compiling some information into the summary in July, trained reviewers in its use in September, and have agreed to complete a comprehensive review by November 30, 2009. These summaries will serve to provide educational, mental health and disability information to attorneys ongoing. A dispute remains about what is sufficient to satisfy the requirement to provide source documents.

Right to be represented by counsel of choice; process for timely notifying of the counsel of record of the imposition of a parole hold (¶ 18):

In contrast to the prior Round, the Special Master's review determined that a notification form was much more routinely used to notify public defenders and private attorneys of a parole revocation proceeding for their clients. Timeliness was poor overall, but improved steadily during the Round. Only 59% were clearly provided in the time mandated by policy. Another 15% were sent by the required time to notify CalPAP; while this exceeds the parties' agreement and could create logistical problems for CalPAP, it also arguably could fit the Stipulated Injunction's requirement to timely notify counsel. In the remaining cases, timeliness could not be discerned because the form was undated, no forms were present, or the notification was late up to 15 days after the hold.*fn13

No revocation extension cases contained this notification as Defendants maintain this is not required, a position that Plaintiffs contest.

Documents indicate that only two attorneys outside of CalPAP indicated their intention to represent youth in the DJJ proceedings, and only one ...


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