1 (“Brown Act”)1, thereby denying the public’s right to the protections afforded by our State’s 2 open government laws and the California Constitution2. 3 Petitioner/Plaintiff CALIFORNIANS AWARE seeks a writ of mandate, injunctive, and 4 declaratory relief under California Code of Civil Procedure sections 1085 and 1060 and 5 Government Code section 549603. In this Verified Petition, Petitioner alleges as follows: 6 7 THE PARTIES 8 1. Petitioner/Plaintiff Californians Aware (“CalAware”) is a 501(c)(3) non-profit 9 public benefit corporation organized under the laws of California, governed by a board 10 comprised of public officials, publicly-minded citizens, and journalists, whose mission includes 11 the promotion and defense of the principles of open government. 12 13 2. Respondent/Defendant LOS ANGELES COUNTY BOARD OF 14 SUPERVISORS (“Board” or “Respondent”) is the elected, five-member governing body of Los 15 Angeles County (“County”), California. The Board’s executive offices are located in the 16 Kenneth Hahn Hall of Administration, 500 West Temple Street, Room 383 17 Los Angeles, California 90012. The County is defined as a “local agency” by § 54951. The 18 Board is a “legislative body” under § 54952. 19 20 MATERIAL FACTS 21 22 3. On or about April 2011, Assembly Bill 109 (AB 109) was signed into law. AB 23 109, also known as the Public Safety Realignment, provides for the transfer of criminal justice 24 responsibilities from the state prisons and parole board to local county officials and superior 25 26 1 Government Code, § 54950, et seq. 27 2 California Constitution, Article 1, § 3 28 3 All further statutory references are to the Government Code, unless otherwise indicated. -2- VERIFIED PETITION FOR WRIT OF MANDATE 1 courts. Through this legislation, as well as subsequent amending legislation, county 2 government must now assume significant new correction, reentry, and community supervision 3 responsibilities for certain persons convicted of non-serious, non-violent felonies. The 4 implementation of the key provisions of the Realignment, as set forth in AB 109, began 5 October 1, 2011. 6 7 4. On September 20, 2011, the Board held a regular meeting. A true and correct 8 copy of that Agenda is attached hereto as Exhibit “A” and a true and correct copy of the 9 Statement of Proceedings (also known as the Minutes) for that meeting is attached hereto as 10 Exhibit “B.” Also, a true and correct copy the transcript of that meeting is attached hereto as 11 “Exhibit C.” 12 13 5. The agenda for that meeting lists numerous items that relate to AB 109. 14 • Discussion Item 38 (Exhibit A, page 20) described as “Report on the Sheriff’s 15 comprehensive Jail Management Plan regarding AB 109, including a discussion on 16 the contracting option with public community correctional facilities and different 17 scenarios that maximize public safety and the percentage of time served by the ‘N3’ 18 population, as requested at the meeting of August 30, 2011.” 19 • Discussion Item A-6 (Exhibit A, page 23) described as “Report by the Community 20 Corrections Partnership – Executive Committee on the development of a local 21 realignment implementation plan, established by AB109 which shifts major public 22 safety programs from the State to the counties, as requested by the Board at the 23 meeting of June 7, 2011.” 24 • A closed session item A-2, (Exhibit A, page 22) was apparently continued from a 25 previous meeting for further discussion and action by the Board. The closed session 26 item is described as “CONFERENCE REGARDING POTENTIAL THREATS TO 27 PUBLIC SERVICES OR FACILITIES (Government Code Section 54957) Briefing 28 -3- VERIFIED PETITION FOR WRIT OF MANDATE 1 by Sheriff Leroy D. Baca or his designee and related emergency services 2 representatives.” 3 6. As the September 20, 2011 meeting began, just after the initial opening items 4 were concluded, the Board started to discuss to the Realignment4. The discussion reflected 5 Supervisors’ concerns, which mainly included funding, administrative challenges, and 6 accepting people with mental health problems. At some point in the discussion, a motion was 7 made to add an item to the agenda - a conference call with the governor to discuss the 8 Supervisors’ concerns. A portion of the discussion is excerpted from Exhibit C, pages 48-49, 9 and set forth below: 10 11 SUP. MOLINA: I APPRECIATE IT. I THINK WE SHOULD GIVE THE 12 AUTHORITY TO OUR COUNTY COUNSEL TO TAKE WHATEVER 13 ACTION NECESSARY. BUT I DO REALLY THINK IT REQUIRES PICKING UP THE PHONE AND TALKING TO THE GOVERNOR, HONESTLY. AND 14 SAY THERE'S NOT A CLEAR PARTNERSHIP HERE. AND WE REALLY WANT TO BE A PARTNER. WE'RE TRYING TO GET OURSELVES READY 15 AND YOUR DEPARTMENT HAS TO PROVIDE THIS INFORMATION. 16 BECAUSE EVEN WITH THOSE MENTALLY DISORDERED OFFENDERS IS A HIGH, HIGH END, HIGH END; ALL RIGHT? THERE'S STILL A LOT 17 OF PEOPLE THAT HAVE MENTAL HEALTH ISSUES THAT COULD BE CONSIDERED VIOLENT OR INCAPABLE OF ADDRESSING 18 THEIRSELVES UNLESS THEY GET APPROPRIATE TREATMENT, 19 APPROPRIATE FACILITIES, BEDS THAT WE NEED. WE CAN'T PREPARE FOR THOSE FOLKS IF WE DON'T KNOW. SO I GUESS WHAT I'M 20 SAYING IS A FIVE-SIGNATURE LETTER, YES, WE SHOULD SEND IT. BUT HONESTLY IT SHOULD BE A PHONE CALL TO THE GOVERNOR 21 AND HIS STAFF ASKING HIM WE WANT TO PARTNER WITH YOU. THE 22 PARTNERSHIP STARTS WITH GETTING US ALL THE INFORMATION. IF WE DON'T HAVE IT, WHAT KIND OF A PARTNERSHIP WOULD THAT 23 BE? AND OF COURSE I DON'T KNOW IF HE'LL TAKE ANY ACTION OR NOT. AND I THINK WE SHOULD STAND READY TO HAVE OUR 24 LAWYERS GO AT IT. 25 SUP. YAROSLAVSKY: I THINK, EXACTLY. 26 27 28 4 The Discussion, in its entirely, can be read at Exhibit C, starting at page 29, line 5. -4- VERIFIED PETITION FOR WRIT OF MANDATE 1 SUP. ANTONOVICH, MAYOR: DECLARE AN EMERGENCY REQUIREMENT THAT WE CONTACT TELEPHONE IN EXECUTIVE 2 SESSION THE GOVERNOR TODAY TO TALK TO HIM ON THAT. THAT 3 WILL BE THE THIRD PART OF THAT MOTION. 4 SUP. MOLINA: EVEN BETTER. 5 6 7. The Statement of Proceedings for that meeting (Exhibit B, pages 25-26) 7 confirms the action taken by the Board: 8 After discussion, on motion of Supervisor Antonovich, seconded by Supervisor Molina, the Board took the following actions: 9 1. Instructed County Counsel to report back with clarification on what authority 10 the County has to contract with penal facilities out of State, if another state has 11 bed space available; 12 2. Requested the Sheriff to provide a follow-up plan that includes a blended use of bed options to maximize the limited State funding and the percentage of time 13 served, reducing the start up time for the need for bed space; provide a status on 14 when a budget will be available in relation to the costs of opening up bed space; and to review the number of inmates being released in the first two weeks to get a 15 better estimate of the costs associated with opening up a specific number of beds and facilities, and have the Chief Executive Officer review; 16 17 3. Instructed the Chief Executive Officer to prepare and send a five-signature letter to the Governor communicating the issues related to the implementation of 18 AB 109; 19 4. Authorized County Counsel to take whatever legal action is necessary to 20 protect Los Angeles County in fulfilling the intent of AB 109; and 21 5. Made a finding pursuant to Government Code Section 54954.2(b)(2), that there is a need to take immediate action and that the need for action came to the 22 attention of the Board subsequent to the agenda being posted as specified in 23 Section 54954.2(a); and designated item CS-8, Conference with Legal Counsel on anticipated litigation, pursuant to Government Code Section 24 54956.9, Subdivision (c), to allow the Board to call the Governor to discuss issues relating to AB 109.5 25 26 Ayes: Supervisor Molina, Supervisor Ridley-Thomas, Supervisor Yaroslavsky, Supervisor Knabe and Supervisor Antonovich 27 28 5 All emphasis added, unless otherwise noted. -5- VERIFIED PETITION FOR WRIT OF MANDATE 1 8. On September 21, 2011, the Board held a meeting to discuss a single item of 2 business in closed session. Petitioner is informed and believes, and upon that basis, alleges that 3 no Agenda was posted or exists for that meeting. A true and correct copy of the Statement of 4 Proceedings (also known as the Minutes) for that meeting is attached hereto as Exhibit “D.” 5 The Statement of Proceedings for that meeting confirms that the topic of the closed session 6 discussion was: 7 CONFERENCE WITH LEGAL COUNSEL – ANTICIPATED LITIGATION 8 (Subdivision (c) of Government Code Section 54956.9) 9 Initiation of litigation (one case) 10 Identified as Item Number 38, on the posted Agenda for September 20, 2011. 11 No reportable action was taken.6 12 13 9. On September 26, 2011, the Board held a special meeting. A true and correct 14 copy of the Agenda for that meeting is attached hereto as Exhibit “E” and a true and correct 15 copy of the Statement of Proceedings for that meeting is attached hereto as Exhibit “F.” The 16 agenda for that special meeting listed a single item of business – a closed session - entitled: 17 CONFERENCE REGARDING POTENTIAL THREATS TO PUBLIC 18 SERVICES OR FACILITIES *Subdivision (a) of Government Code Section 54957) 19 20 Consultation with the Sheriff, Chief Probation Officer, Department of Mental Health, Secretary of California Department of Corrections and Rehabilitation, and 21 the Secretary of Californian Health and human Services Agency, or their respective deputies, and other appropriate and necessary County and State 22 officials, on matters posing a potential threat to the public’s right of access to 23 public services of public facilities due to the impact of AB 109.