Tentative denial for DAs to stop conduct credits scheme

A Sacramento County judge tentatively denied Tuesday a group of district attorneys' request for a preliminary injunction to stop the Department of Corrections and Rehabilitation from increasing good conduct credits for second strike inmates.

Judge Shama H. Mesiwala then held oral arguments and took the matter under submission. Her tentative ruling denied the district attorneys' injunctive request on the basis of standing.

Mesiwala agreed with the prisons department's argument that the district attorneys do not qualify as interested persons and are not authorized under any state statute to bring the civil action.

"Petitioners do not have standing to bring this civil declaratory action, and that is fatal to their contention that they have shown a likelihood they will prevail upon their claims," Mesiwala wrote in the tentative.

Mesiwala did not show any indication that she had changed her mind during the arguments by Sacramento County's Chief Deputy District Attorney Rod D. Norgaard and Deputy District Attorney Alissa Kubochi on behalf of the 28 district attorneys.

Supervising Deputy Attorney General Jay M. Goldman and Deputy Attorney General Anthony J. Tartaglio spoke on behalf of the prisons department.

Last month, Sacramento County Judge Raymond Cadei granted the district attorneys' request for a temporary restraining order barring the prisons department from enacting the rule change, which would increase good conduct credits from 50% to 60% for certain second strike inmates who are classified as nonviolent.

The district attorneys are challenging the legality of the rule, saying the department skirted process requirements such as public comment required under the Administrative Procedure Act. The lawsuit is the second of its kind to be filed by a group of district attorneys led by Sacramento County District Attorney Anne Marie Schubert challenging the department's increase of good conduct credits for inmates, which can allow them earlier release. Anne Marie Schubert et al. v. State of California et al., 2021-00312867 (Sac. Super. Ct., filed Dec. 12, 2021).

The department contends the rule change is valid under Proposition 57, a voter initiative passed in 2016 that was designed to reduce the prison population by creating new avenues for parole.

During Tuesday's proceedings Norgaard and Kubochi argued the district attorneys do have standing to bring the action on the basis that they legally represent the people of their respective counties as well as crime victims, who have direct interests in the matter.

Norgaard also argued that even if the court found an issue with standing, it could be easily rectified after victim rights organizations join the lawsuit and should not affect the injunctive relief the plaintiffs seek. Both Crime Victims United and Citizens Against Homicide plan to join the lawsuit, he said.

Tartaglio countered it is unclear whether the victims rights groups would fix the issue of standing and thus the preliminary injunction motion should be denied. He also said the department would be filing a demurrer in the case shortly.