Emma C. v. Eastin

          ORDER ON JUNE 13, 2016 SHOW CAUSE HEARING

          THELTON E. HENDERSON United States District Judge.

         This 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.

         BACKGROUND

         The parties are by now familiar with the facts of this case. The Court provides the following brief summary to provide context for this Order.

         On 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.

         On 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.^[1] 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.

         CDE has 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.

         In 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 Comprehensive Review.

         As the 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.

         DISCUSSION

         I. The Order to Show Cause is Discharged without a Finding of Contempt.

         In 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. 1983).

         CDE 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.

         Plaintiffs 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 ...