Judge ready to bar hiking of felons’ good conduct credits

A Sacramento County judge said Monday he was inclined to grant a temporary restraining order that would bar the California Department of Corrections and Rehabilitation from implementing new emergency regulations that increase good conduct credit for double felons inmates whose crimes are designated nonviolent.

Superior Court Judge Raymond Cadei asked Sacramento County Chief Deputy District Attorney Rod Norgaard, who is representing 28 California district attorneys challenging the legality of the rule changes, to make changes in the wording of the restraining order motion with specifics on which regulation specifically they seek to stop. Anne Marie Schubert et al. v. State of California et al., 2021-00312867 (Sac. Super. Ct., filed Dec. 21, 2021).

Norgaard clarified during the ex parte proceeding that the district attorneys are not challenging all of the department's rule changes that go into effect Jan. 1, such as increasing good conduct credit for prisoners who serve as volunteer firefighters. Rather, he said, the DAs are only challenging the increase from 50% to 66% of credits, which lead to earlier parole, for certain double felons.

"I'm inclined to issue the limited TRO as Mr. Norgaard has wordsmithed over the phone," Cadei said, adding Norgaard and Deputy Attorney General Anthony J. Tartaglio, who is representing the prisons department, will appear Wednesday to discuss any disagreements over the new motion before he issues his final ruling.

The motion is part of a lawsuit filed Dec. 21 that alleges the credit changes for felons designated as nonviolent are invalid and unlawful because the department skirted process requirements such as public comment under the state Administrative Procedure Act.

The lawsuit is the second brought by district attorneys led by Sacramento County District Attorney Anne Marie Schubert, who is running for attorney general next year. In May, the district attorneys challenged the legality of changes to good conduct credits for violent felons. Anne Marie Schubert et al. v. State of California et al., 2021-00301253 (Sac. Super. Ct., filed May 26, 2021).

The department argues the changes are valid under Proposition 57, a 2016 voter initiative designed to reduce the prison population by creating new avenues for parole.

Tartaglio argued Monday against issuing a temporary restraining order stating that the district attorneys have not met the burden of showing an irreparable harm.

"Their whole view of this case is that they don't like these regulations. That's what this boils down to. They're not personally affected by this. ... And that's not an irreparable harm that could entitle them to a TRO," Tartaglio said.

Norgaard argued that based on the court's finding in the first lawsuit's motion for preliminary injunction, the temporary restraining order should be granted.

Superior Court Judge Shama H. Mesiwala's "ruling put them on notice: 'Don't do this again,' and they did it anyway," Norgaard said, referring to Mesiwala's denial of the district attorneys' preliminary injunction in July.

Mesiwala said the DAs had not shown a significant irreparable injury, but did find they "demonstrated some arguable likelihood of prevailing upon their claim."

She added that there was an "earlier, reasonable window of time during which plaintiffs could have acted to obtain a temporary restraining order to enjoin the implementation" of the regulations to preserve the status quo rather than seek an injunction to reverse regulations that had already been implemented and would be costly to reverse, according to the prisons department.