United States District Court, N.D. California
ORDER ON JUNE 13, 2016 SHOW CAUSE HEARING
THELTON E. HENDERSON United States District Judge.
matter came before the Court on June 13, 2016, for a hearing
on the Court's Order for Defendant California Department
of Education ("CDE") to Show Cause regarding its
apparent failure to comply with the Court's order
adopting the Fifth Joint Statement. For the reasons stated
below, the Court discharges the Order to Show Cause without a
finding of contempt or imposition of sanctions.
parties are by now familiar with the facts of this case. The
Court provides the following brief summary to provide context
for this Order.
December 21, 2012, the parties stipulated to the Fifth Joint
Statement, which provided a framework for evaluating the
adequacy of CDE's state-level system for ensuring FAPE.
Docket No. 1799. The Court approved the Fifth Joint Statement
on January 12, 2013. Docket No. 1803. The Fifth Joint
Statement requires that CDE provide notice via email to the
parties and the Monitor 30 days in advance of "any
proposed substantive changes in the design of its state-level
monitoring system that will be applied to the District,
" and calls for a 21-day timeline for any objections to
the proposed changes, a meet-and-confer discussion within 10
days of objections, and determinations by the Monitor
regarding any objections should the parties not reach
agreement. Fifth Joint Stmt. §§ VII. A-G.
January 9, 2014, having followed the Fifth Joint
Statement's framework, the Monitor issued determinations,
which recommended the development of a Corrective Action Plan
("CAP") for CDE's statewide monitoring system.
Docket No. 1890. On July 2, 2014, the Court approved the
Monitor's determinations in full, after denying CDE's
motion objecting to and seeking to set aside the
determinations. Docket No. 1958. On January 15, 2015, the
Court issued an Order providing the process for developing a
Draft CAP that would allow the Parties opportunity to provide
input to the Monitor and be heard on any objections. Docket
No. 2013. Accordingly, the Monitor issued the Draft CAP on
February 12, 2015, CDE objected to the Draft CAP, and the
Monitor addressed CDE's objections in a Memorandum dated
May 14, 2015. CDE then moved to set aside the Draft CAP,
which the Court denied on August 25, 2015. Docket No. 2095.
CDE then moved to stay implementation of the Final CAP, which
the Court denied. Docket No. 2130. The CAP became final as of
December 3, 2015. Id.
appealed the Court's July 2, 2014 Order (denying
CDE's motion to set aside the Monitor's
determinations), August 25, 2015 Order (denying CDE's
motion to set aside the Draft CAP), and December 3, 2015
Order (denying CDE's motion to stay implementation of the
Final CAP). The Ninth Circuit has denied CDE's motions to
stay the action in this Court twice (on September 2, 2014,
and on January 15, 2016), and has consolidated all three
pending appeals. Because the appeals are pending and no stays
have been granted, the CAP is currently in full force.
CDE's February 1, 2016 responses to CAP Sections 1, 10,
12 and 15, CDE stated that it "will be phasing in a
comprehensive, integrated set of results-driven
measures" in the District "in the upcoming
year." Instead of the Special Education Self Review
(SESR) process, CDE stated that it "will require"
an Annual Submission Process (ASP), and then listed the
components of the ASP process. CDE also included in a
footnote that "…LEAs will no longer conduct the
SESR on a cyclical basis. Instead, the SESR will be reserved
as a tool that LEAs can use, in their discretion, or as
directed by CDE as part of the ASP or other quality assurance
activities." Further, CDE states that it "has also
converted" its Verification Review (VR) into a
Monitor noted, "CDE did not provide advance notice of
what appear to be important substantive changes to its
monitoring system, " as required by the Fifth Joint
Statement. Monitor's March 29, 2016 Memo (Docket No.
2167). Plaintiffs submitted comments on CDE's submission
on March 2, 2016, but did not mention the Fifth Joint
Statement issue. Instead, the Monitor submitted his March 29,
2016 Memorandum, and the Court ordered CDE to show cause
"as to why it should not be held in civil contempt and
sanctioned for failure to comply [with the Court's order
approving the Fifth Joint Statement]." Docket No. 2170.
The Order to Show Cause instructed CDE and Plaintiffs to
submit responses that would serve as the notice and objection
requirements of the Fifth Joint Statement, and to state their
positions on how CDE's proposed changes affect CDE's
compliance with the CAP going forward.
Order to Show Cause is Discharged without a Finding of
order for the Court to find CDE in contempt of Court, three
requirements must be met beyond a reasonable doubt: (1) there
was a clear and definite order of the Court; (2) CDE knew of
the order; and (3) CDE willfully disobeyed the order.
Chapman v. Pac Tel. & Tel. Co., 613 F.2d 193, 195
(9th Cir. 1979); Bloom v. State of Ill., 391 U.S.
194, 205 (1968). Thus, the Court cannot impose contempt
sanctions if it finds that CDE's violation was
accidental, inadvertent, or negligent. Falstaff Brewing
Corp. v. Miller Brewing Co., 702 F.2d 770, 782 (9th Cir.
argues that it did not violate the Court's order adopting
the Fifth Joint Statement, because the notice requirements
were not triggered. CDE OSC Resp. at 10. CDE states: "In
contrast to the statewide CAP devised by the Monitor - which
requires CDE to provide information to the Monitor and the
parties concerning its' statewide system - the Fifth
Joint Statement was specifically drafted to require thirty
days' advance notice of changes which would be applied
to the District." Id. at 10 (emphasis
in original). Thus, CDE asserts that because none of the four
proposed changes at issue would be implemented in
the District within 30 days, CDE was not required to give
notice under the Fifth Joint Statement. Rather, the changes
were discussed only in response to CDE's obligations
under the CAP.
contend that CDE's interpretation of the Fifth Joint
Statement's 30 day notice requirement is "untenable
and forced, " due to the other timelines set forth in
the Fifth Joint Statement, which would likely take well over
30 days to comply with. Pls. OSC Resp. at 2-3. At the June
13, 2016 hearing, the Court asked Plaintiffs what they
believed the "thirty days" meant in the context of
the Fifth Joint Statement. Plaintiffs responded that
Plaintiffs' interpretation is that CDE would ...