Appendix — Kerr v. United States Dist. Court for Northern Dist. of Cal.
Supreme Court brief1976
Ask Donna
What actually matters in this document.
Text
APPENDIZ JUL 25 1975
MICHAEL ROCAK, JA_CLERE |
In the Supreme Court
OF THE
United States
OcToBer Tern. 1974
No. 74-1023
Henry W. Kerr, et al., Petitioners,
VS.
UNITED StaTes District Court, NORTHERN DisTRICT
OF CALIFORNIA, Respondent,
JOHN VAN GELDERN, et al., Real Parties in Interest.
On Writ of Certiorari to the
United States Court of Appeals
for the Ninth Circuit
Petition for Writ of Certiorari filed February 15, 1975
Certiorari granted May 27, 1975
PERNAU -WALSH PRINTING CO.- 5862 MISSION STREET - SAN FRANCISCO. CA 94108
Subject Index
Chronological list of Relevant Docket Entries .............. 2
Plaintiff's Complaint filed in the United States District Court
for the Northern District of California on November 15,
DT, ‘Kdisentdhus abueetitadtanesdenndaeengndnsadscance 8
Plaintiffs’ Request for Production of Documents filed in the
I I I i a ts ea 51
Defendants’. Response to Plaintiffs’ Request for Production
of Documents, filed in the district court November 30,
Dt: siduhdiuedaith dhadannnttanntndnsapenebetnbedhecave 57
Pi.. >tiffs’ Notice of Motion and Motion For an Order Com-
pelling Discovery and Memorandum of Points and Au-
thorities in Support of Motion, filed in the district court
Pe Ss OE CdAseSedkewRWes évederendccnoudeneseces 76
Defendants’ Opposition to Plaintiffs’ Motion to Compel
Answers to Interrogatories and Production of Documents,
filed in the district court March 25, 1974 ............... 147
Plaintiffs’ Reply to Defendants’ Opposition to Plaintiffs’
Motion to Compel Answers to Interrogatories and Produe-
tion of Documents, filed in the district court April 1, 1974 197
Magistrate’s Findings and Recommendations filed in the dis-
CD GI I Sk, TED cede cccccccsctcccscectcosess 216
Defendants’ Notice of Intent to Seek Review of Magistrate's
Decision and Statement of Objections, filed in the district
GUE BE Ge TOE Se cecccccccnscccescaccetastcccese 217
Defendants’ Request for Review of Magistrate’s Findings
and Recommendations of April 24, 1974, filed in the dis-
OS GU Be GE NUD 6kvcnedecccensnvdiites cccscacece 220
Plaintiffs’ Motion to Compel Discovery, and Plaintiffs’ Mem-
orandum in Support of Plaintiffs’ Motion to Compel Dis-
covery filed in the district court May 15, 1974 ........... 232
Defendants’ Response in Opposition to Plaintiffs’ Motion to
Compel Discovery, filed in the district court June 3, 1974.. 247
Plaintiffs’ Memorandum of Points and Authorities in Sup-
port of Plaintiffs’ Opposition to Defendants’ Request for
Review of Magistrate’s Findings and Recommendatiuns,
filed in the district court June 5, 1974 ................. 261
ii Sussect Inpex
Page
Magistrate’s Findings and Recommendations filed in the dis-
Coles comm Game BR, BOGS ccccccccccccctccscccccadescees 273
Defendants’ Notice of Intent to Seek Review of Magistrate’s
Decision of June 11, 1974 and Statement of Objections,
filed in the district court June 17, 1974 ..........66-0005. 273
District court’s order adopting, with modifications, the Magis-
trate’s Findings and Recommendations of April 24, 1974,
filed June 20, 1974 ...... Sean eens eeeeeeneneseeeteetes 276
Notice of Plaintiffs’ Request for Review of Magistrate’s De-
cision and Statement of Objections, and Plaintiffs’ Memo-
randum of Points and Authorities in Support thereof, filed
in the district court June 24, 1974 ......... poéebesecders 276
Defendants’ Request for Review of Magistrate’s Findings and
Recommendations of June 11, 1974, filed in the district
Gs Gs Gad GR, FHSS 00sec cetcdccescecvtbencesiccsicsec 287
Plaintiffs’ amendment of pleading (Amendment of the Com-
plaint) filed in the district court June 26, 1974........... 294
Petition for Writ of Mandamus and/or Prohibition and Ap-
plication for Stay of Part of Order, filed in the United
States Court of Appeals for the Ninth Cireuit June 26,
SIRE, Tih. TG ov te dancesecsvedetsseddsesdécacsstese 298
Defendants’ Answer To Plaintiffs’ Complaint As Amended,
filed in the district court July 23, 1974 ................. 334
Petitioners’ Supplemental Application for Stay of Part of
District Court’s Order, filed in the United States Court of
Appeals for the Ninth Cireuit in No. 74-2206 on August
GO FINO cocvcccnsccccsesdeccbccccssoosenessdsnoceseccs 363
District court’s diseovery Order, filed August 12, 1974 ...... 367
Order of the United States Court of Appeals for the Ninth
Circuit in No. 74-2206, filed August 15, 1974 ............. 368
Order of the District Court Determining That The Action Is
Maintainable As A Class Action, filed August 1, 1974 ..... 369
Respondents’ [Iteal Parties in Interest] Answer to Petition
for Writ of Mandamus, filed in the United States Court of
Appeals for the Ninth Cireuit in No. 74-2206 on August 30,
GEE késccdccncesesenesseegentarsastesepeabesunnsaien 371
Sussect InpEx iii
Page
Petitioners’ Reply to Respondents’ Answer to Petition for
Writ of Mandamus, filed in the United States Court of
Appeals for the Ninth Circuit in No. 74-2206 on September
“lg ible uieieieli Taree Sprites 424
Order of United States Court of Appeals for the Ninth Cireuit
in No. 74-2206, filed September 20, 1974 ..............4.. 445
Plaintiffs’ Notice of Motion and Motion For Enforcement,
Clarification and Sanctions, filed in the distriet court Octo-
OP Ge UE ob a0 as bene 0 Os ood boeeeh ses eceeds caceesess 446
Defendants’ Opposition to Plaintiffs’ Motion for Enforcement,
Clarification and Sanctions, ete., filed in the district court
ET Te EE Sade betbbedbverorcbissrcccscocceoeses 470
Plaintiffs’ Response to Defendants’ Opposition to Plaintiffs’
Motion for Enforcement, Clarification, and Sanctions, filed
in the district court October 29, 1974 ..............020065 542
Defendants’ Reply to Plaintiffs’ Response to Defendants’ Op-
position to Plaintiffs’ Motion for Enforcement, Clarification,
and Sanctions, filed in the district court October 31,1974 561
Plaintiffs’ Notice of Motion and Motion for Modification of
Aur ast 12, 1974 Order, and Memorandum of Points and
Authorities in support thereof, filed in the district court
re Te. Ts sccdevicdetdbeddaeebee ceebecste aces 569
Defendants’ Response to Plaintiffs’ Motion for Modification
of August 12, 1974 Order and Defendants’ Cross-Motion
for Modification of said order, ete., filed in the district
CURES Fe Ge GPO be Kectdnacctbecedeserensec cece 590
Order of the District Court filed December 3, 1974.......... 647
Petition for Writ of Mandamus and/or Prohibition, Applica-
tion for Stay of Diseovery Order and Notice of Related
ease, Application for Immediate Stay, filed in the United
States Court of Appeals for the Ninth Circuit in No. 74-3392
i MD oo 055865590 660Rs 0005 60 coed eeeese 651
Letter from B. E. Bergesen, III to Clerk of the United States
Court of Appeals dated December 16, 1974 in response to
petition for writ of mandamus in Action No, 74-3392 ..... 692
iv Sussect InpEx
Page
Order of the United States Court of Appeals for the Ninth
Cireuit in No. 74-3392, filed December 13, 1974 staying dis-
trict court order of December 3, 1974 pending further con-
sideration of petition for writ of mandamus ...........++> 698
Order of United States Court of Appeals for the Ninth Cireuit
filed in No, 74-3392 on December 18, 1974 denying the
petition for writ of mandamus and vacating the stay order 699
Letter of Karl 8S. Mayer to Clerk of the Court of Appeals
dated December 19, 1974 in response to letter of Mr. Ber-
gesen dated December 16, 1974 in No, 74-3392 ........55. 700
Order of Supreme Court of the United States in No, A-546,
dated December 31, 1974 staying part of district court
order of December 3, 1974 ...... 6c c ccc cree ween ee enee 706
Opinion of the United States Court of Appeals for the Ninth
Cireuit in No, 74-2206, filed January 17, 1975 ........... 707
Order of United States Court of Appeals for the Ninth
Cireuit in No. 74-2206 staying issuance of mandate to Feb-
ruary 17, 1975 and pending the disposition of a petition
for writ of certiorari filed by that date, filed January 27,
errr re er ee eee ee 721
Order of the Supreme Court of the United States in A-546
dated February 1, 1975 continuing the stay order dated
December 31, 1974 pending the disposition of a timely
filed petition for writ of certiorari .... 0.6.66 c eee eens 723
Order of the United States Court of Appeals for the Ninth
Cireuit in No. 74-2206 staying issuance of mandate to
February 28, 1975 and pending the disposition of a peti-
tion for writ of certiorari filed by that date, filed February
OD, BED cvccevecccwestscdoccecdcedsncccistetadeussees 724
—_——
APPENDIX
Sn the Supreme Court
OF THE
United States
October Term, 1974
No. 74-1023
--------—_—
Henry W. Kerg, et al., Petitioners,
vs.
Untrtep States District Court, NortHErN District
oF CaLirornia, Respondent,
JOHN VAN GeLpERN, et al., Real Parties in Interest.
On Writ of Certiorari to the
United States Court of Appeals
for the Ninth Circuit
—=—=ssoeee
CHRONOLOGICAL LIST OF
RELEVANT DOCKET ENTRIES
November 15, 1972 (USDC)—Plaintiffs’ complaint
for declaratory and injunctive relief filed in the United
States District Court for the Northern District of
California.
December 26, 1972 (USDC)—Defendants’ motion
to dismiss filed.
February 13, 1973 (USDC)—Plaintiffs’ opposition
to defendants’ motion to dismiss filed.
March 1, 1973 (USDC)—Defendants’ response to
plaintiffs’ opposition to defendants’ motion to dismiss
filed.
March 8, 1973 (USDC)—Order denying defend-
ants’ motion to dismiss filed.
March 19, 1973 (USDC)—Defendants’ motion to
amend Order denying motion to dismiss certifying
questions for interlocutory appeal filed.
April 2, 1973 (USDC)—Plaintiffs’ opposition to
defendants’ motion to amend Order certifying ques-
tion for interlocutory appeal filed.
April 13, 1973 (USDC)—Order denying defend-
ants’ motion to amend Order to certify an interlocu-
tory appeal filed.
May 15, 1973 (USDC)—Copy of Order of United
States Court of Appeals for the Ninth Circuit (No.
73-1761) denying defendants’ petition for writ of
mandamus or prohibition filed.
June 1, 1973 (USDC)—Copy of Order of United
States Court of Appeals for the Ninth Circuit (No.
_— ; — at i A A A ll OE
3
73-1761) denying defendants’ petition for rehearing
filed.
June 21, 1973 (USDC)—Plaintiffs’ request for pro-
duction of documents filed.
N ovember 30, 1973 (USDC)—Defendants’ answer
to plaintiffs’ request for production of documents
filed.
March 11, 1974 (USDC)—Plaintiffs’ motion to
compel further answers to interrogatories and pro-
duction of documents filed.
March 25, 1974 (USDC)—Defendants’ opposition
to plaintiffs’ motion for an order compelling further
answers to interrogatories and further production of
documents filed.
April 1, 1974 (USDC)—Plaintiffs’ reply to defend-
ants’ opposition to plaintiffs’ motion for order com-
pelling further discovery filed.
April 24, 1974 (USDC)—Magistrate’s Findings and
Recommendations on plaintiffs’ motion for order
compelling further discovery filed.
April 30, 1974 (USDC)—Defendants’ notice of in-
tent to review magistrate’s decision and statement of
objections filed.
May 6, 1974 (USDC)—Defendants’ request for re-
view of magistrate’s decision filed.
May 15, 1974 (USDC)—Plaintiffs’ motion to com-
pel further discovery filed.
June 3, 1974 (USDC)—Defendants’ response in op-
position to plaintiffs’ motion to compel further dis-
covery filed.
4
June 5, 1974 (USDC)—Plaintiffs’ memorandum in
support of opposition to defendants’ request for re-
view of magistrate’s decision filed.
June 11, 1974 (USDC)—Magistrate’s Findings and
Recommendations filed.
June 17, 1974 (USDC)—Plaintiffs’ request for
documents filed.
June 17, 1974 (USDC)—Defendants’ notice of in-
tent to review magistrate’s decision and statement of
objections filed.
June 20, 1974 (USDC)—Order adopting magis-
trate’s Findings and Recommendations, except for
modifications as noted, filed.
June 24, 1974 (USDC)—Plaintiffs’ request for re-
view of magistrate’s decision filed.
June 26, 1974 (USDC)—Plaintiffs’ motion to com-
pel production of documents filed.
June 26, 1974 (USDC)—Plaintiffs’ amendment to
complaint filed.
June 26, 1974 (USCA, No. 74-2206)—Petition for
writ of mandamus or prohibition and application for
stay filed.
July 15, 1974 (USDC)—Defendants’ response to
plaintiffs’ motion to compel further discovery filed.
July 16, 1974 (USCA, No. 74-2206)—Petitioners’
letter of additional authorities received.
July 19, 1974 (USCA, No. 74-2206)—Letter of real
party in interest responding to letter of petitioner
dated July 16, 1974 received.
——_§ > «
|
5
July 23, 1974 (USDC)—Defendants’ answer to
complaint as amended filed.
August 8, 1974 (USCA, No. 74-2206)—Petitioners’
supplemental application for stay filed.
August 12, 1974 (USDC)—Order affirming magis-
trate’s Findings and Recommendations of June 11
1974, filed. |
August 15, 1974 (USCA, No. 74-2206)—Order re-
quiring an answer to petition for mandamus and ap-
plication for stay filed.
August 23, 1974 (USDC)—Order determining that
action may be maintained as a class action filed.
August 30, 1974 (USCA, No. 74-2206)—Answer of
real party in interest to petition for mandamus filed.
September 4, 1974 (USCA, No, 74-2206)—Petition-
ers’ reply to answer of real party in interest filed.
September 20, 1974 (USCA, No. 74-2206)—Order
continuing stay and calendaring matter for argument
on November 14, 1974, filed.
October 21, 1974 (USDC)—Plaintiffs’ motion for
enforeement, clarification, and sanctions filed.
October 24, 1974 (USDC)—Defendants’ opposition
to plaintiffs’ motion for enforcement, clarification, and
sanctions filed. ;
October 29, 1974 (USDC)—Plaintiffs’ response to
defendants’ opposition to plaintiffs’ motion for en-
forcement, clarification and sanctions filed.
October 30, 1974 (USCA, No. 74-2206 )—Petition-
ers’ letter of additional authorities filed.
6
October 31, 1974 (USDC)—Defendants’ reply to
plaintiffs’ response to defendants’ opposition to plain-
tiffs’ motion for enforcement, clarification, and sanc-
tions filed.
November 11, 1974 (USDC)—Plaintiffs’ motion for
modification of Order of August 12, 1974, filed.
November 14, 1974 (USCA, No. 74-2206)—Petition
for writ of mandamus argued and submitted.
November 20, 1974 (USDC)—Defendants’ response
to plaintiffs’ motion for modification of Order of Au-
gust 12, 1974, filed,
December 3, 1974 (USDC)—Order for clarification
and enforcement of Order of August 12, 1974, filed.
December 13, 1974 (USCA, No. 74-3392)—Petition
for writ of mandamus, application for stay, applica-
tion for immediate stay filed.
December 16, 1974 (USCA, No. 74-3392)—Letter of
respondent (real party in interest) in opposition to
petition for mandamus received.
December 18, 1974 (USCA, No, 74-3392)—Order
denying petition for mandamus and vacating stay
filed.
January 6, 1975 (USDC; USCA, No. 74-3392)—
Order of USSC, Mr. Justice Douglas, staying USDC
order of December 3, 1974, received.’
1'This entry, and the entry of February 6, 1975, are made in the
Court of Appeals Docket in No. 74-2206. This, however,
to be a clerical error as the district court’s of Decem 3
1974, was before the Court of Appeals only in No, 74-3392 and
not in No. 74-2206.
7
January 17, 1975 (USCA, No. 74-2206)—Opinion
denying mandamus and vacating stay filed.
January 22, 1975 (USCA, No. 74-2206)—Petition-
ers’ application for stay of mandate pending the filing
and disposition of a petition for writ of certiorari
filed.
January 27, 1975 (USCA, No. 74-2206)—Respond-
ents’ (real party in interest) opposition to petition-
ers’ motion for stay filed.
January 27, 1975 (USCA, No. 74-2206)—Order
staying mandate to February 17, 1975, pending the
filing and disposition of a petition for writ of cer-
tiorari filed.
February 6, 1975 (USDC; USCA, No. 74-3392)—
Order of USSC, Mr. Justice Douglas, continuing the
stay of the USDC order of December 3, 1974, pending
the filing and disposition of a petition for writ of
certiorari received.”
February 12, 1975 (USCA, No. 74-2206)—Petition-
ers’ motion to extend stay of mandate filed.
February 13, 1975 (USCA, No. 74-2206)—Order
staying mandate to February 28, 1975, and pending
disposition of a timely filed petition for writ of cer-
tiorari filed.
February 15, 1975 (USSC, No. 74-1023)—Petition
for writ of certiorari filed.
May 27, 1975 (USSC, No. 74-1023)—Order grant-
ing petition for writ of certiorari.
2See footnote 1, supra.
8
[Designation of Attorneys for Plaintiffs Omitted in Printing]
In the United States District Court
for the Northern District of California
C-72-2088 SAW
John Van Geldern, Danny Jones, Charles Edward |
Van Nort, Billy oy 2 Lewis, Robert Newton
Gardner, Jr., James Murrin, George Chatfield,
individually and on behalf of all others simi-
larly situated,
Plaintiffs,
vs.
Henry W. Kerr, Curtis O. Lynum, Walter A.
Gordon, Jr., Manley J. Bowler, Leland M. Ed-
man, James H. Hoover, Charles E. Brown,
Daniel R. Lopez, individually and in their offi-
cial capacities as members of the California
Adult Authority, Joseph A. Spangler, individ-
ually and in his official capacity as Administra-
tive officer of the California Adult Authority,
Raymond K. Procunier, individually and in his
official capacity as Director of Corrections of
the State of California; their agents, employ-
ees, and successors in interest,
Defendants. ;
[ Filed Nov. 15, 1972]
CoMPLAINT FOR VIOLATION OF CrviL RIGHTS,
FOR DECLARATORY AND INJUNCTIVE RELIEF
Jurisdiction
1. This is a civil action brought by plaintiffs on
behalf of themselves and all others similarly situated
under Section 1343 of Title 28 of the United States
Code, to redress the deprivation of rights, privileges
and immunities secured to them by the Fifth, Sixth,
Eighth and Fourteenth Amendments to the Constitu-
tion of the United States. Pursuant to 42 U.S.C.
Sections 1983 and 1988 and 28 U.S.C. Sections 2201
and 2202, plaintiffs seek declaratory and injunctive
relief to remedy the unconstitutional conduct of de-
fendants complained of herein.
Nature of the Case
2.a. Plaintiffs and their classes are inmates in
various California state prisons. They challenge the
hearing procedures whereby defendants, members of
the California Adult Authority and the Department
of Corrections, grant, deny, or rescind parole, fix and
re-fix sentences, and whereby they purport to adjudi-
cate infractions of prison rules. Because these deci-
sions involve fundamental rights of liberty and
result in grievous loss for thousands of California
prisoners by depriving them of that liberty, the process
of making these decisions must meet the due process
requirements of the Fourteenth Amendment.
b. The statutory and decisional law of California
forbids these decisions to be made in an arbitrary
manner or in the absence of ‘“‘good cause”. Therefore
the Adult Authority and the Department of Corree-
tions, pursuant to constitutional and statutory grants
10
of power, have established hearing procedures at which
hearings these decisions are made. Where, as here,
such hearings are required to be held by both Federal
and State law, they must be fair and impartial in
the constitutional sense, as is more fully described
below.
ce. The hearing procedures actually followed by
defendant members and administrative officers of the
Adult Authority and by the Department of Correc-
tions are in fact completely lacking in both procedural
and substantive due process, and in rudimentary fair-
ness or equity. Hearings held by the Adult Authority
are defective in that:
(1) Inmates who are to appear before panels of
members or representatives of the Adult Author-
ity, are not informed as to the material the panel
has before it and are absolutely prohibited from
reviewing their central file, upon which the Au-
thority will in large part base its decision ;
(2) Inmates are absolutely prohibited from
being represented by retained counsel, nor is
counsel ever appointed at the request of an in-
digent ;
(3) Hearings average about ten minutes, al-
though the mediar. time is considerably less. De-
cisions are made in less than five minutes, and
without any extended or meaningful discussion
of the case;
(4) No written statements of the reasons for
decisions or of the evidence relied on are pro-
vided the inmate;
11
(5) As more fully alleged in paragraph 16 peti-
tioners allege that Adult Authority members have
no expertise, are biased, and base their decisions
on false, inaccurate, and misleading information.
d. Hearings are also conducted by the Department
of Corrections. These hearings purport to adjudicate
infractions of prison rules. Consequent to such ad-
judications prisoners may be punished by transfer,
assignment to solitary confinement, permanent re-
classification to maximum security sections, and may
suffer other loss of the restricted liberty which is
available to the general prison population. Reports
concerning these alleged infractions are placed in the
files of plaintiffs and their class, and said material is
reviewed by the Adult Authority; and is often used
to deny or rescind parole.
e. The hearing procedures employed by Defendant
Procunier and the Department of Corrections and the
Adult Authority in their said hearings are constitu-
tionally infirm because they are not designed to be
nor are they effective to expose and develop the criti-
cal facts upon which the Department of Corrections
and the Adult Authority’s decisions must be made, or
to apply to such facts the appropriate criteria in
order to reach a rational and correct decision as a
matter of law. As a direct result of these defective
procedures, the decisions routinely reached by the De-
partment of Corrections and the Adult Authority are
so arbitrary, discriminatory and otherwise illegal as
to violate plaintiffs’ rights under the Fifth, Sixth,
Eighth and Fourteenth Amendments to the United
States Constitution.
12
f. The combined procedures of the Department of
Corrections and the Adult Authority result not in a
correctional system, but in a chaotic limbo where
prisoners, including plaintiffs and their class, must
spend unknowable and unlimited numbers of years
of imprisonment soliciting the favor and humoring
the impulse, whim, caprice, and mood of correctional
staff, Adult Authority members and representatives,
and parole officers. False, biased, prejudicial, and
distorted allegations from inmates, associates on the
outside during parole periods, correctional staff, un-
qualified medical assistants, and others, are accumu-
lated in the prisoners’ central files and accorded
weight impossible to measure or ascertain in the de-
cisions of the Adult Authority and the Department of
Corrections.
g. Accordingly, plaintiffs seek declaratory and in-
junctive relief to require that defendants henceforth
afford plaintiffs and their class fundamental due
process safeguards in the proceedings and hearings
which determine the contents of the central files at
which the Adult Authority fixes or refuses to fix the
terms of sentences and grants or denies parole, re-
scinds or revokes parole, and at those hearings which
are conducted to review adverse determinations within
the administrative channels of the Adult Authority
itself. The minimum due process safeguards to as-
sure evidentiary integrity to these hearings and pro-
cedures include the right to:
1) receive timely notice of all alleged viola-
tions of parole or infractions of prison rules
which may lead to the denying of sentence deter-
13
mination or parole, or the rescinding or revoking
of parole;
2) conduct a timely review of the entire central
file and all other documents which will be avail-
able to the Adult Authority or Department of
Corrections in reaching their decisions;
3) adduce favorable evidence and cross-examine
adverse witnesses and persons submitting adverse
reports at disciplinary hearings and at Adult
Authority hearings;
4) be represented by retained counsel at the
hearings conducted by the Adult Authority, and
be represented at disciplinary hearings in the
manner detailed in the Opinion of the Court in
Clutchette v. Procunter, in the order of June 21,
1971 (328 F. Supp. 767, Northern District of
California) ;
5) be heard by an impartial and unbiased
panel or official who has had no connection with
any of the alleged violations or other operative
facts, including the prisoners’ original conviction
or earlier revocations, upon which the Adult Au-
thority’s decision will turn. In this connection,
a procedure is required, and must be evolved,
which furnishes the name of the Adult Authority
representatives or members who are scheduled to
hear whatever type of hearing is pending in
sufficient time to permit the prisoner to exercise
an option to disqualify a representative or mem-
ber for previous involvements with the prisoner’s
case, or for personal bias or prejudice from pre-
14
vious relationships with said representative or
member ;
6) be furnished with a verbatim transcript of
the hearing, and be furnished with a written
statement of the reason for an adverse determi-
nation, and the evidence upon which it was based ;
7) be represented in person or by counsel at
any additional appellate or administrative review
proceedings conducted by the Adult Authority
with due process procedures appropriate to a re-
viewing agency.
Parties
3. Plaintiffs John Van Geldgern,* Danny Jones,
Charles Edward Van Nort, Billy Ray Lewis, and
Robert Newton Gardner, Jr. are prisoners in the
custody of the Department of Corrections of the State
of California (hereinafter ‘‘The Department”) pres-
ently confined at the California Men’s Colony at San
Luis Obispo (hereinafter ‘‘CMC”), Plaintiff James
Murrin is a prisoner in the custody of the Depart-
ment, presently confined at California Conservation
Camp #5 at Marimonte, and previously at Sierra
Conservation Center at Jamestown, California (here-
inafter “Jamestown”). Plaintiff George Chatfield is
a prisoner in the custody of the Department presently
confined at California State Prison at San Quentin.
4. Plaintiffs bring this action as a class action,
individual’'y and on behalf of all others similarly
*No chrnges in spelling, syntax, punctuation, ete. have been
made by printer.
15
situated. The class is divided into subclasses defined
as follows:
Class A
All inmates in the custody of the Department who
have had, or will have in the future, a term which
was previously fixed and a parole date which was
previously set by the Adult Authority rescinded by
said Authority prior to the date on which said in-
mates would have been released on parole. Class A is
represented by plaintiffs Jones, Van Nort, and
Murrin.
Class B
All inmates in the custody of the Department who
have had their parole revoked by the Authority pur-
suant to the procedures complained of herein, or will
be subject to the revocation procedures of the Au-
thority complained of herein, Class B is represented
by plaintiffs Lewis, Gardner, Van Geldern, and Chat-
field.
Class C
All inmates in the custody of the Department,
whether they have been paroled or revoked or not,
who appear before the Adult Authority for purposes
of determining whether the Authority will fix or re-
fuse to fix their terms and grant or deny them parole,
pursuant to the procedures complained of herein.
Class C is represented by all the named plaintiffs
herein.
16
As to each subclass of persons, it is so numerous
that the joinder of all members is impracticable;
there are questions of law and fact common to the
subclass; the claims of the named plaintiffs herein
are typical of the claims of the subclass, and plaintiffs
will fairly and adequately protect the interests of the
other members of the subclass. In addition, the prose-
cution of separate actions by individual members of
each subclass would create a risk of adjudications
with respect to individual members thereof which
would as a practical matter be dispositive of the in-
terests of the other members not parties to the adju-
dications, or substantially impair or impede their
ability to protect their interests; and, the parties op-
posing each subclass have acted and refused to act
on grounds generally applicable to the subclass,
thereby making appropriate final injunctive relief
and corresponding declaratory relief with respect to
the subclass as a whole.
5. Defendants Henry W. Kerr, Curtis O. Lynum,
Manley J. Bowler, Walter A. Gordon, Jr., Leland M.
Edman, James H. Hoover, Charles E. Brown, and
Daniel R. Lopez are members of the Adult Authority,
and defendant Joseph A. Spangler is the administra-
tive officer of the Adult Authority. In such capacities
said defendants are responsible for designing and
carrying out constitutional, lawful, and fair proce-
dures to determine, inter alia, whether or not to:
A) fix an inmate’s term and grant parole
B) rescind an earlier decision to fix an inmate’s
term and grant parole, prior to the date upon
which he is actually released on parole
17
C) revoke an inmate’s parole
D) review said proceedings and determinations
upon request of an adversely affected inmate.
Defendant Spangler is responsible for the implemen-
tation of the responsibilities of the defendant mem-
bers as hereinabove described. Defendant Spangler
has in fact assisted in making policy, designing pro-
cedures, making de facto determinations critical to
the decisions made by the Adult Authority, and in in-
terpreting the laws under which the Adult Authority
operates to deny plaintiffs and their classes and sub-
classes fundamental fairness and due process of law.
Defendant Spangler is the chief staff officer and han-
dies all administrative functions as delegated and
determined by the Authority. He is the official keeper
of the Authority’s records, and liaison officer with
defendant Procunier and the staff of the Department
of Corrections.
6. Defendant Raymond K. Procunier is the Di-
rector of the Department and in such capacity is re-
sponsible for the overall operation of the Department,
the promulgation and enforcement of rules governing
the confinement of inmates subject to the custody of
the Department, including the proceedings had on
disciplinary charges, and the keeping of central files
relied on by the Adult Authority in making the de-
terminations described in paragraph 5, supra, and the
safety of each such inmate.
7. Defendants are sued both individually and in
their official capacities. In depriving plaintiffs of
their constitutional rights, as set forth hereinafter,
18
defendants and each of them have acted and refused
to act under color of the statutes, ordinances, regu-
lations, customs and usages of the State of California.
Facts
8. Introduction As to the named plaintiffs, at all
times herein mentioned defendant Adult Authority
members and administrative officer and their agents,
representatives and employees were routinely conduct-
ing parole consideration hearings, sentence fixing
hearings, hearings or preceedings to determine
whether or not to revoke or rescind parole, and hear-
ings to impose serious disciplinary sanctions through-
out the various institutions of the Department of
Corrections in the State of California.
Plaintiff Billy Ray Lewis
(representing subclasses B & C)
9.a. In March of 1972 plaintiff Billy Ray Lewis
was released on parole. His parole plan was based
upon his working as a janitor in San Jose. Plaintiff
commenced said employment, and approximately one
month after his release married the woman to whom
he had been engaged during his imprisonment.
Shortly after their marriage plaintiff Lewis and his
wife experienced a series of marital difficulties. Plain-
tiff and his wife quarreled frequently and on more
than one occasion his wife threatened to have his
parole violated without cause and solely so plaintiff
would be returned to prison. Eventually, plaintiff
moved out of their bedroom and because of their
growing incompatibility ceased having sexual rela-
tions with his wife.
19
b. On or about October 18, 1971, plaintiff’s wife
locked the door to their house, barred plaintiff’s entry
thereto, and demanded that he return later in the
day to gather his belongings and that he move out.
When plaintiff returned he was arrested by the Police
and charged with the crime against nature based on
a complaint allegedly made by plaintiff’s wife to his
parole officer falsely accusing plaintiff of having sex-
ual relations with a dog.
ec. Plaintiff’s wife denied and now denies having
lodged such a complaint. Plaintiff is unaware whether
his wife’s denial of having lodged the charge is true
or whether she in fact lodged the complaint pursuant
to her earlier threats to cause his parole to be re-
voked. In either case, said charges were and are
complete fabrications and totally false, and plaintiff’s
wife so informed the Santa Clara Public Defender
who was appointed to represent plaintiff in court. All
criminal charges against plaintiff were accordingly
dismissed.
d. At all times relevant hereto, plaintiff did every-
thing in his power to preserve a difficult and deterio-
rating personal relationship with his wife under
adverse conditions caused by his wife’s quarrelsome
nature, by her obesity, and by her constant threats
to revoke his parole.
e. Notwithstanding the above, and notwithstand-
ing the fact that plaintiff’s wife informed the Adult
Authority that her alleged complaint was untrue,
plaintiff was returned to prison and in December of
that year appeared before the Adult Authority on
parole violation charges which were based entirely
upon the same charge which had been dismissed by
the court. At the hearing plaintiff was not permitted
to rebut the charge against him, or to present any
witnesses or other evidence to prove the falsity of the
charges. Although plaintiff pled ‘‘not guilty” to the
charge, the Adult Authority found him guilty, or-
dered that plaintiff undergo a psychiatric examina-
tion and obtain a ‘‘psych clearance” prior to his next
parole hearing in May of 1972. Subsequently, plain-
tiff was duly examined and given a psychiatric
clearance.
f. On or about April 26, 1972, plaintiff again ap-
peared before the Adult Authority for parole consid-
eration and sentence determination. On this occasion
the Adult Authority refused to determine plaintiff’s
sentence or to release him on parole because of sus-
picion of sodomizing a dog and on a charge of “‘lewd
behavior” and upon the further ground that he re-
fused to admit that he was guilty. Again, plaintiff
was denied the right to be represented by an attorney
who was willing and able to appear in his behalf;
and he was again denied the opportunity to present
evidence or to rebut the false charges against him, At
the hearing plaintiff was denied further parole con-
sideration until November of 1972.
g. At each of the foregoing hearings before the
Adult Authority the panel members acted upon in-
. formation which was absolutely false, and which re-
¥ quired sophisticated assessment and consideration of
plaintiff’s contentions. The Adult Authority revoked
plaintiff’s parole and thereafter refused to fix his
term or grant him parole, all without good cause.
Plaintiff Danny Jones
(representing subclasses A and C )
10.a. In February of 1970, an Adult Authority
panel which included defendant Lynum fixed two con-
current terms which plaintiff Danny Jones was then
serving, set a parole release date of October 1, 1970,
and assigned plaintiff Jones to the department’s Work
Furlough program. Certain agents, representatives
and employees of defendant Procunier, constituting
members of the Classification Committee at the Cali-
fornia Institution for Men at Chino (hereinafter
“Chino”) where plaintiff Jones was then confined,
opposed the work furlough assignment, and arranged
to prevent Jones from being so assigned. Plaintiff
Jones saw no way to appeal the Department’s frus-
tration of the assignment ordered by the Adult
Authority other than purposefully incurring a disci-
plinary report in order to appear again before de-
fendant Lynum. This plaintiff did, and when
defendant Lynum learned of plaintiff’s situation, he
reversed the action of the said Classification Com-
mittee and insisted that plaintiff be assigned to the
Work Furlough program. Thereafter, two of the said
Committee members told plaintiff explicitly that any
possible excuse would be seized upon by them to bring
about the rescission of plaintiff’s parole date.
b. Plaintiff Jones subsequently obtained a job and
then a promotion with Carson Industries, a trailer
manufacturer. Certain of defendant Procunier’s
agents, representatives and employees continued to
plan actively to obtain rescission of plaintiff’s parole
date, and some made bets among themselves that he
would not be able to complete the program without
having his parole date rescinded. Plaintiff Jones
withstood the tensions and difficulties imposed by this
continuing attitude, and made an excellent adjust-
ment in the Work Furlough program and established
a warm relationship with a woman his own age.
c. On or about September 26, 1970, only five days
before plaintiff Jones was due to be released on pa-
role, he returned to the prison quite tired from a
hard day’s work, and went to sleep at about 8:30
p.m. Several hours later, about four guards, agents,
representatives and employees of defendant Pro-
cunier, went through plaintiff’s wing and made their
count on plaintiff’s tier by loudly slamming the doors
of the various cells. A few minutes later, the guards
returned to plaintiff’s cell and repeated the door
banging routine, whereupon plaintiff, violently awak-
ened from the beginnings of sleep, verbally protested
this action to the guards involved. Although plain-
tiff’s protest had been temperate and reasonable, the
guards told him that they were going to lock him up
for insubordination. Later, before the Watch Lieu-
tenant, they altered their story to falsely charge plain-
tiff with threatening an officer. This Lieutenant listened
to plaintiff’s version of the incident and, noting that
he had only five days to go before release on parole,
told plaintiff to return to his cell and to continue his
regular work schedule.
ad. On or about September 29, 1970, upon return-
ing to the institution from work, plaintiff was sum-
marily placed in chains, taken to the Custody
Sergeant’s office, and later placed in isolation, al-
though no reason was given for this treatment. About
10 days later, several days after plaintiff was to have
been released on parole, he was taken before a disci-
plinary committee composed of the same staff mem-
bers who had opposed his participation in the Work
Furlough program and charged with ‘‘threatening an
officer” and ‘‘disobeying orders”. About a week later,
plaintiff appeared before two members of the Adult
Authority for an interview which lasted less than 2
minutes. Three days later he received official notice
that his parole date had been rescinded, and that he
would be scheduled for an appearance before the
Adult Authority in March of 1971, for further parole
consideration. Petitioner was then transferred to
Folsom Prison.
e. In March of 1971 petitioner appeared before
the Adult Authority and received a new parole date
of December 6, 1971. Although plaintiff opposed par-
ticipation in the Work Furlough program, based
upon his earlier experience, he was nonetheless trans-
ferred to said program, and to the same part of
Chino where he had earlier had his difficulties with
staff.
f. Upon entering the Work Furlough program,
petitioner obtained employment with the same em-
ployer and once again, working and saving diligently,
was able to establish credit, buy a car, and commence
norma! relationships with people on the outside world.
However, about a month later plaintiff was summarily
removed from the Work Furlough program pending
24
“investigation”, which apparently continued for the
next five days, whereupon plaintiff was told by staff
that the investigation had ‘‘cleared” him and that he
was being reinstated in the Work Furlough program.
To this date plaintiff does not know what the reason
for the ‘‘investigation” was. However, upon return-
ing to his place of employment piaintiff’s supervisor
told him that he could not afford to hire people who
would be arbitrarily suspended from the program for
five days, as plaintiff had, and that he would there-
fore terminate plaintiff’s employment and thereafter
refrain from hiring any prisoners from the Work
Furlough program. Approximately five days later
plaintiff found part-time work cleaning up mobile
homes.
g. Several months later, plaintiff was mistakenly
arrested as a prowler, and was sentenced to serve 30
day in jail by a Municipal Court Judge in Corona for
trespassing. On or about December 7, 1971, plaintiff
was given a hearing before defendants Kerr and
Edman, who told him that if they released him he
would simply stick guns in people’s face and bur--
glarize, apparently referring to the trespassing inci-
dent (in which the police report of this incident
clearly stated that plaintiff was not armed.) Shortly
thereafter, plaintiff received notice that his parole
date had been rescinded, his sentences redetermined,
and his parole release date reset to June 5, 1972, condi-
tioned upon plaintiff receiving no more disciplinary
reports.
h. In February of 1972, a prison guard, an agent,
representative and employee of defendant Procunier,
25
submitted a falsified disciplinary report concerning
plaintiff, accusing him of an insubordinate attitude.
As a result, plaintiff’s case was referred back to the
Adult Authority, which again rescinded his parole
date and transferred him to CMC.
i. At CMC plaintiff Jones appeared before the
Adult Authority in May of 1972, for a hearing which
lasted approximately 90 seconds. At this hearing the
Adult Authority declined to determine plaintiff’s sen-
tence or to grant parole, and scheduled his next hear-
ing for December of 1972.
j. In none of the Adult Authority hearings re-
ferred to in this paragraph was plaintiff permitted
to know the information upon which the panel mem-
bers based their decision. During the last 4 such
hearings the Adult Authority members had before
them information which was in material part either
false or misleading, yet plaintiff was not permitted
to rebut this information by cross-examining the per-
sons who had made the statements involved, nor was
he permitted to present any evidence in his behalf.
At none of the hearings was plaintiff permitted to be
represented by counsel.
Plaintiff Charles Edward Van Nort
(representing subclasses A & C)
lla. In May of 1967, plaintiff Charles Edward
Van Nort was sentenced to a term of imprisonment
for violation of California Penal Code § 245, which
sentence was ordered to run concurrently with the
unexpired time on a previous conviction. On or about
May 20, 1970, plaintiff Charles Van Nort appeared
26
before the Adult Authority which fixed his terms and
granted him a parole, to become effective on Decem-
ber 1, 1970. Shortly thereafter, plaintiff was assigned
to the Work Furlough program at Chino, and began
work at the Mayfair Market in Montclair, California.
b. On or about November 11, 1970, at approxi-
mately 5:45 a.m., several officers from the Montclair
Police Department, together with several members of
the Chino and/or parole office staff, approached plain-
tiff and placed him under arrest. Plaintiff immedi-
ately requested to be informed of the charge against
him, but the arresting officials refused to supply this
information. Plaintiff then requested the assistance
of counsel and also permission to make a telephone
call, but both requests were denied. Plaintiff was
summarily taken into custody and returned to Chino,
where he was placed in segregation and held incom-
municado.
c. Plaintiff remained in segregation for approxi-
mately a week, during which time he was interrogated
by a Mr. Smith, who refused to inform him of the
charges against him, refused to afford him the oppor-
tunity to consult with counsel, or even to make a tele-
phone call. Officials at Chino would tell him only
that his “case” had been “referred to the Los An-
geles District Attorney,” leaving plaintiff to believe
that he was being charged with a felony. Accordingly,
he remained silent except for the numerous demands
which he made for information concerning the charges
against him and the assistance of counsel.
d. On or about November 20, 1970, having recently
been released to the general population of the Recep-
27
tion Guidance Center at Chino, plaintiff was brought
before a disciplinary committee of that prison and or-
dered to enter a “plea” to the “charge”, although of-
ficials still refused to disclose the nature of said
charge. Over plaintiff’s objection, the hearing officer
entered a plea of guilty as charged and entered a
recommendation to the Adult Authority that plain-
tiff’s parole date of December 1, 1970, be rescinded.
In addition, plaintiff was forced to sign a document
which purported to set forth the nature of his “of-
fense”, ~
e. On or about December 22, 1970, plaintiff ap-
peared before an Adult Authority panel at which time
his parole date was officially rescinded. At no time
during the hearing was plaintiff allowed to see the
report against him or to present evidence in his favor;
instead, he was told only that the “incident” was under
investigation by the Los Angeles County District At-
torney. On or about January 11, 1971, plaintiff re-
ceived official notification of the Adult Authority’s
action, and on or about January 19, 1971, plaintiff
received official notification that he had been desig-
nated a “Special Interest Case” by the Adult Author-
ity.
f. Since that time plaintiff has upon many oc-
casions requested officials of the Adult Authority and
the Department to inform him of the “crime” which
he had allegedly committed, but on every occasion this
information was either flatly refused or else plaintiff
was told that the case was still being investicated
by the Los Angeles County District Attorney. Subse-
quent to the rescinding of plaintiff’s parole date, he
28
was twice appeared before the Adult Authority. On
each occasion he has been denied parole solely on the
grounds of the alleged “crime” which was the cause
for rescinding his parole date in December of 1970.
g. Plaintiff has never been presented with a state-
ment of the evidence or charges against him by de-
fendants and has never been shown police reports or
parole agent reports of said evidence or charges by
defendants. It was not until May, 1972, in a Return
filed by the Attorney General of the State of Califor-
nia to a Petition for a Writ of Habeas Corpus filed
in California State Courts by Plaintiff, that Plaintiff
ever learned the nature of the charges against him.
The information contained in said Return is false and
inaccurate and in fact does not indicate that any
“crime” was committed by defendant (sic) while at
liberty or that any crime formed the basis for his pa-
role rescission. Rather, said information indicates that
plaintiff is accused of having been absent from work
for a few hours on an occasion when he was ill, and
during a period when there was no requirement that
he report hourly to the Work Furlough Center, and
further that a bottle of whiskey allegedly belonging to
plaintiff—but in fact belonging to his father—was
found in plaintiff’s automobile.
h. In none of the Adult Authority hearings re-
ferred to in this paragraph was plaintiff permitted to
know the information upon which panel members
based their decision. During all of the hearings com-
mencing with the proceedings leading to rescission,
the rescission itself, and the subsequent denials of
parole, the Adult Authority members had before them
29
information which was in material part either false
or misleading, yet plaintiff was not permitted to rebut
this information by cross-examining the persons who
had made the statements involved, nor was he permit-
ted to present any evidence in his behalf other than
to make a statement. At none of the hearings was
plaintiff permitted to be represented by counsel. As a
result of the rescission of his parole, plaintiff has been
classified in a special category and required by the
Adult Authority to complete a special program enti-
tled “Stress Assessment Unit” before even becoming
eligible for favorable parole consideration. Correc-
tional staff members at CMC, informed plaintiff Van
Nort in April of 1972 that he must dismiss all litiga-
tion concerning his parole rescission or be taken out of
the said Stress Assessment Union, without participa-
tion in which he cannot be eligible for parole consider-
ation. Challenging any action taken by correctional
or Adult Authority staff is regarded as evidence of
lack of rehabilitation, and the Stress Assessment. Unit
specializes in probings of acceptance of guilt and wrong-
doing. Plaintiff is informed and believes and there-
fore alleges, that his parole has been denied since it
was rescinded, in whole or in substantial part, because
he has sought to challenge the proceedings and to ob-
tain judicial review of them.
Plaintiff Robert Newton Gardner, Jr. (representing
subclasses B and C )
12.a. In or about March of 1967 plaintiff Robert
Newton Gardner, Jr. was released on parole, and
his sentence, as fixed by the Adult Authority, was
scheduled to expire on or about March 18, 1960. On
or about December 11, 1959, a hearing of which plain-
tiff was unaware, was held by the Adult Authority,
at which time plaintiff’s parole was suspended. On or
about May 30, 1960, some 9 weeks subsequent to plain-
tiff’s discharge date, his parole was revoked and he
was returned to the custody of the Department.
b. On or about February 1, 1971, plaintiff was
again released on parole. On or about March 17,
1971, plaintiff was arrested on charges of assault with
a deadly weapon and possession of a firearm by an
ex-felon. In September of 1971, plaintiff plead guilty
to a violation of California Penal Code §245 (assault
with force likely to produce great bodily injury),
whereupon the trial judge reduced the offense to a
misdemeanor and sentenced plaintiff to serve an amount
of County Jail time equa! to time which he had al-
ready served, for which credit was given, so that as
of the date of sentencing plaintiff had no more time
to serve on this charge. At the same time, the trial
judge indicated that he believed the offense had arisen
out of a family dispute.
c. Plaintiff’s parole officer prepared a report con-
cerning the foregoing incident. However, plaintiff is
informed and believes and therefore alleges that said
parole officer refused to return the calls of approxi-
mately 8 prospective witnesses who wished to give
evidence on behalf of plaintiff, three of whom were at-
torneys who were knowledgeable about plaintiff’s case.
Said report was necessarily, therefore, incomplete, in-
adequate, and seriously distorted.
31
d. On or about November 19, 1971, the Adult Au-
thority placed plaintiff in the STRU (Short Term Re-
lease Unit) Program, the effect of which is generally
to make an inmate eligible for parole from 4 to 6
months thereafter. Subsequently, plaintiff appeared
before an Adult Authority representative named Hal-
derman, whom plaintiff had previously known when
Halderman was serving at Folsom Prison, and with
whom the plaintiff did not get alone. When plaintiff
attempted to explain the circumstances surrounding
his misdemeanor conviction, Halderman refused to lis-
ten, but instead referred to plaintiff as a “trouble-
maker” and recommended that plaintiff’s parole be
revoked and that he be removed from the STRU Pro-
gram. On January 5, 1972, the Adult Authority,
during an ex parte hearing, approved the recommenda-
tions of Halderman. Plaintiff was not permitted to be
present at this meeting, nor was he allowed to be rep-
resented by any one of the three attorneys who has
requested to appear in his behalf.
e. Plaintiff is informed and believes and therefore
alleges that a parolee is normally removed from the
STRU Program only for cause, that is, for a viola-
tion of the rules of the program. Plaintiff, however,
had a good record in the STRU Program and was not
removed therefrom for having violated any regulation
of the Program; rather, plaintiff was removed from
the Program without any good cause solely because
the Adult Authority representative who presided over
his case was personally biased and prejudiced against
plaintiff.
f. All of the foregoing occurred without plaintiff
ever being afforded the right to be heard and present
a defense against the charges made, including the
right to call witnesses in his own behalf, the right to
confront and cross-examine the witnesses against him,
the right to counsel, and the right to fair and timely
notice of his alleged misconduct.
Plaintiff John Van Geldern, (representing
subclasses B and C)
13.a. In October of 1967 plaintiff John Van
Geldern was released on parole. In February of
1969, after being convicted of violating California
Penal Code Sections 26104a, and 487, and California
Corporations Code Section 25542, plaintiff was re-
turned to prison as a parole violator. In April of
1970, plaintiff appeared for the first time before the
Adult Authority for purposes of a parole revocation
hearing. Plaintiff was charged with violating 12 pa-
role conditions, including charges of “moving without
permission” and “being a corporation president with-
out permission.” At that time plaintiff refused to
plead to the charges unless he was first permitted
elemental due process rights which would permit him
to rebut any false charges in the record. This request
was denied, and plaintiff was summarily found guilty
of all charges, whereupon his parole revoked.
b. In February of 1972, plaintiff appeared before
defendants Edman and Bowler for a sentence de-
termination and parole release hearing. During the
hearing, one of the defendants stated that plaintiff
was responsible for defrauding a number of persons
connected with plaintiff’s former business venture of
approximately $250,000. Plaintiff replied that in the
19 volumes of transcripts from his trial, ample and
overwhelming evidence disproved that statement to-
tally, and that he had not been responsible for any
losses whatsoever. However, plaintiff was not permit-
ted to rebut defendants’ totally false statement by
other than his own statement, unsupported at the
hearing by the evidence which he was not permitted
to adduce, Plaintiff Van Geldern did not receive
advance notice of these charges nor detailed specifi-
cation of them. Plaintiff was not able to have the
transcripts considered nor in any other way to furnish
evidence rebutting these charges.
ce. At the said February, 1972 hearing plaintiff
was advised that his case would be submitted to an
en bane proceeding before all 8 members of the Adult
Authority, assisted by defendant Spangler, at
which plaintiff would not be present. In late May of
1972, the Adult Authority meeting en bane and in the
absence of plaintiff, refused to determine his sentence
or to grant parole.
d. Although plaintiff does not know the full con-
tents of his central file, upon which sentence fixing and
parole determinations are substantially based, he is
informed and believes and therefore alleges that his
central files contain false, inaccurate, misleading, dis-
torted and prejudicial contents, and that these con-
tents formed, in substantial part, the basis for the
May 1972 parole denial. Plaintiff has on many oc-
34
casions requested to review his central file, specifically
in March of 1970 and December of 1971, and prior to
the filing of this case plaintiff’s attorneys herein made
formal request to review said file, in order to ascertain
the exact contents thereof, and to correct the false
and misleading information contained therein, but all
such requests have been denied by defendants. Plain-
tiff Van Geldern also requested to be represented by
counsel at the Adult Authority hearings determining
revocation and reconsideration for sentence-fixing and
parole, to present evidence in his behalf at said hear-
ings, and to confront and examine those submitting
charges and allegations against him at said hearings.
All said requests have been denied by defendants.
Plaintiff James Murrin (representing
subclasses A and C)
14.2. On or about February 19, 1970 plaintiff
James Murrin was sentenced to a term of five
years to life on a conviction of violation of Penal
Code Section 211. On or about May 31, 1972 plaintiff
Murrin appeared before a panel of the Adult Au-
thority at the Correctional Training Facility at Sole-
dad, California, and his term was fixed at six years,
with parole granted effective April 2, 1973. At said
time the Adult Authority stipulated that plaintiff
Murrin be placed in a prison camp as an auto me-
chanic, Plaintiff Murrin subsequently applied for
camp placement as an auto mechanic and received an
assignment as auto mechanic in keeping with the
Adult Authority’s parole stipulation. Plaintiff Mur-
rin was consequently transferred to the Sierra Con-
servation Camp at Jamestown, California. Shortly
after his arrival plaintiff Murrin was placed in
a physical fitness training program (Hereinafter
“P.F.T.”) which he believed was a requisite for the
camp “Special Skills Auto Mechanic” program stip-
ulated by the Adult Authority. He shortly thereafter
learned, however, that the P.F.T. program was un-
related to the special skills auto mechanic program,
and he also found the P.F'.T. program extremely diffi-
cult physically and ultimately impossible for him to
perform. He thus asked to be re-assigned out of
P.F.T. and to be placed in the special skills auto me-
chanie camp as per the Adult Authority stipulation
and pursuant to the reason for his transfer to James-
town. His request was refused
b. On or about July 12, 1972 and again on July
24, 1972 plaintiff Murrin was given CDC 115 dis-
ciplinary reports, subsequent to appearances before a
staff member of the Jamestown facility. On or about
August 7, 1972 prison authorities at Jamestown, agents
and employees of defendant Procunier, placed
plaintiff Murrin on the special proceedings review
calendar of the Adult Authority. On or about Sep-
tember 7, 1972 the Adult Authority rescinded its de-
termination of May 31, 1972 fixing plaintiff Mur-
rin’s term and granting parole. Plaintiff Mur-
rin’s parole date of April 1973 was taken from him
and he was placed on the representatives calendar for
April 1973. The Adult Authority based its said action
on the two disciplinary proceedings of July 12 and
July 24, 1972. On or about October 31, 1972 plaintiff
Murrin’s request for rehearing before the Adult
Authority was denied. At neither the disciplinary
hearings, nor the Adult Authority proceedings herein-
above referred to was plaintiff Murrin permitted
to introduce evidence, review his file, have representa-
tion of counsel or counsel-substitute, nor have his
contention that he was sent to Jamestown for auto-
mechanic training and not for the physical fitness
training program which was unrelated to the auto
mechanic training program fairly considered. Subse-
quent to the rescinding of plaintiff’s date and the de-
nial of rehearing by the Adult Authority, plaintiff
Murrin was sent to the Conservation Camp #5 at
Miramonte, California (Fresno County) where he is
presently performing on the work crew. Plaintiff
Murrin incurred no other disciplinary infractions,
caused no disruptions, performed everything which
was requested of him save that he requested that he
be removed from the P.F.T. program and placed in
the special skills auto mechanic program as per the
Adult Authority’s stipulation in May of 1972. Plain-
tiff Murrin’s sentence was automatically refixed at
“the life top” by the said rescission. Plaintiff Mur-
rin alleges that there was no good cause nor any
legal cause whatsoever to rescind his term fixing and
parole date by the Adult Authority.
Plaintiff George Chatfield (representing
subclasses B and C)
15.a. On or about June 13, 1968 Plaintiff George
Chatfield was placed on parole following a term in
California State prison for robbery. Shortly after his
release, he suffered a complete nervous breakdown
37
in which he became the victim of a psychotic delusion
that he was a bodyguard to President Kennedy; that
President Kennedy had not been killed, but kid-
napped; and that he had been instructed to rob a
bank in order to obtain money for the President’s
ransom.
b. On or about February 27, 1969 he was appre-
hended by federal authorities for the robbery of a
federally insured bank in Santa Rosa, California. He
escaped from said custody and was again apprehended
in Washington State on or about October 13, 1969 and
returned to San Francisco. In San Francisco, pursu-
ant to an order of the United States District Court
for the Northern District of California, he was evalu-
ated and examined to determine his competency to
stand trial on the bank robbery charge. On or about
February 12, 1970, the examining psychiatrist deter-
mined that Plaintiff was mentally incompetent to
stand trial or to understand the charges against him
and that he suffered from a paranoid, schizophrenic
reaction.
e. A further, more detailed examination was or-
dered by the Court, pursuant to which Plaintiff was
sent to California Medical Facility at Vacaville (here-
inafter “CMF”) for examination by CMF’s chief psy-
chiatrist, A.G. Nugent, M.D. On or about April 13,
1970, following extensive examination, Dr. Nugent
concluded that plaintiff was a schizophrenic and that
he was suffering an acute schizophrenic illness of psy-
chotic proportions. Dr. Nugent further concluded
that Plaintiff was mentally incompetent to understand
38
the proceedings against him or to assist in his own
defense.
d. Plaintiff was then committed to the Medical
Center for Prisoners at Springfield, Missouri, where
he remained—except for a brief period when he was
returned to San Francisco—until August, 1971. Psy-
chiatric evaluations during this period by Springfield
staff and by psychiatrists for Plaintiff establish that
Plaintiff was schizophrenic and that he needed insti-
tutionalized psychiatric treatment and supervision for
an indefinite period of time.
e. Because of the likelihood of an insanity defense
prevailing at any trial on the federal bankruptcy
charges, the United States Attorney elected to dismiss
the federal charges in August, 1971. Plaintiff was
thereupon returned to California state prison to face
parole violation charges which included a charge that
he committed the same bank robbery which had just
been dismissed in Federal Court. Plaintiff was at this
time still schizophrenic and paranoid and incapable of
assisting in any defense, or of arguing to the Adult
Authority that he should be committed to a mental
institution.
f. Plaintiff first appeared before two members of
the Adult Authority at a parole revocation hearing in
December, 1971. At said time he requested the right to
have an attorney. Said request was denied. He was
then asked to plead guilty or not guilty to the parole
violation charges against him. Plaintiff then stated
that he could not enter a plea without some assistance,
and that he did not know what the charges were about
39
nor did he understand them. The panel refused all
requests for assistance, adjourned the revocation hear-
ing, and summoned plaintiff to a new hearing in Jan-
uary, 1972. At the January, 1972, hearing, two Adult
Authority members badgered and pressured plaintiff
for over an hour to plead either guilty or not guilty
to the charges against him and refused again to permit
him to be represented by counsel. Plaintiff again
declined to enter either plea without legal assistance,
and left the revocation hearing. In his absence, the
panel found Plaintiff guilty of having violated condi-
tions of his parole, revoked said parole, refixed his
sentence at the maximum of life, and returned him to
state prison to finish his term. Plaintiff has been in
San Quentin Prison ever since.
g. At each of the foregoing hearings before the
Adult Authority, the panel members acted without
affording plaintiff any opportunity to make a coherent
presentation of his case since he was incompetent and
insane. The Authority therefore did not have a full,
complete, or accurate picture of the facts of his case,
nor did it have before it any analysis of what possible
dispositions short of a new state prison commitment
were available in plaintiff’s case.
16. Petitioners are informed and believe and there-
fore allege, in addition to the allegations of paragraph
2 incorporated herein by this reference, that:
a. Defendant Adult Authority members, hearing
representatives, and administrative officers have no ex-
pertise in arriving at fair decisions concerning parole
date rescission, parole revocation, term fixing and pa-
40
role release. To the contrary, said members, represent-
atives, and administrative officer are quite unsuited
for the task as a result of:
(i) The narrow partisan background which vir-
tually every one of them possesses, due to having
been for many years a law enforcement officer,
and by the punitive anti-prisoner biases which
they possess; and
(ii) Their experience as Adult Authority mem-
bers, representatives or administrative officer,
which has led them to adopt rigid and stereotyped
thinking patterns pursuant to which they look
more for the quality or servility than for those
qualities which would, in fact, portend success on
parole.
b. The persons who serve as members and repre-
sentatives of the Adult Authority do not reflect a
wide or representative cross-section of the population
of California, but instead manifest attitudes which
militate against a fair and open attitude in assessing
parole readiness.
ce. At the hearings, panel members rely heavily
upon written material which is unreliable, because
composed of reports which (i) are often false, mali-
cious, inaccurate or misleading, (ii) are essentially
one-sided, insofar as they contain almost exclusively
adverse material, without a correponding emphasis
upon the positive aspects of an inmate’s prison be-
havior, (iii) are placed in an inmate’s file through
a process which contains no substantial safeguards
whatsoever to determine reliability, and (iv) may not
41
he reviewed by the inmate who is therefore unable to
refute even the most demonstrably untrue information.
d. In appearing before an Adult Authority Panel,
many inmates are so fearful, tongue-tied or lacking
in the ability to organize and articulate their position
that they are unable to make an effective presentation
of their case, or even on occasion to respond accu-
rately to questions posed by the panel. Usually, the
inmate has no idea what the two panel members are
concerned about. Sometimes the panel explicitly in-
forms the inmate of their particular concerns, and
sometimes it does not. The impression which the panel
members receive concerning the inmate is often quite
different from the truth.
e. In almost every hearing the panel members do
not have sufficient time (i) to thoroughly review the
relevant written material before them, (ii) to conduct
a thorough and meaningful interview with the inmate,
or (iii) to arrive at an informed decision pursuant
to u discussion of the case. |
f. Inmates are often told, at a term-fixing hearing,
that particular accomplishments (e.g. participation in
vocational] training or group counseling) are expected
of them prior to their next appearance before the
Adult Authority, if they are to have their sentence
fixed and parole granted. Often, however, the inmate
will accomplish the very matters prescribed, only to
be told by 2 different members or representatives at
his next hearing that those accomplishments are ir-
relevant and that some one or more other items must
be performed during the subsequent year. Such incon-
42
sistency from year to year, and between different
members and representatives of the Adult Authority,
causes frustration, bitterness and hostility in many
inmates, and is therefore anti-rehabilitative in nature.
g. Because of the foregoing considerations set forth
in this paragraph, the decisions reached and the ac-
tions taken by Adult Authority members and repre-
sentatives herein complained of, are based upon (1)
mere whim and caprice, reflecting primarily the panel
member’s personal predelictions, (ii) discriminatory
considerations, reflecting primarily the panel member’s
own political, racial, and other biases and/or (iii)
criteria which in fact do not correspond to the likeli-
hood of success on parole, and therefore are not based
upon the “good cause” required by State law and
the Federal Constitution.
h. Hearings held by the Department of Correc-
tions to adjudicate alleged rules infractions and to
impose disciplinary sanctions including prolonged iso-
lation and loss of privileges or to write and lodge
reports of infractions and other incidents in the per-
manent central files of inmates are conducted arbi-
trarily and capriciously. Investigation of the facts of
such alleged infractions is biased and incomplete and
inmates are not given an opportunity to rebut or, in
many cases, even to see the evidence against them.
When formal hearings are held at all they are con-
ducted by partial and interested personnel. Neither
the inmate nor any representative of the inmate is
permitted to see his central file even though items in
said file are frequently used as evidence against him.
- eee “
43
These procedures are not designed to and in fact do
not develop the critical facts on which administrative
decisions are made and reports made.
i. State prisoners perceive Adult Authority and
Department of Corrections hearings to be eminently
unfair, and they share a widespread belief that the
Adult Authority and the Department consistently act
in an arbitrary, discriminatory, and illegal manner;
that their central files, upon which the Adult Author-
ity places heavy reliance, contain much untrue and
misleading information; and that the indeterminate
sentence implemented through the type of hearing
presently conducted by the Adult Authority, is funda-
mentally unfair. In fact, the type of Adult Authority
and Department of Corrections hearings described
herein cause grave and extensive anxiety and suf-
fering.
j. The intended benefits of the indeterminate
sentence have, in fact, been utterly perverted by the
defective hearings conducted by the Adult Authority,
as described herein. The result is that California pres-
ently exacts the longest sentences in the nation, and
is holding in confinement literally thousands of in-
mates who should not be imprisoned by any rational
criteria, thereby inflicting needless massive human
suffering.
Legal Claims
17. While acting under color of the law of the
State of California, as more fully described in para-
graphs 8 through 16 thereof, defendants have deprived
44
plaintiffs and their subclasses of the following rights
which are secured to them by the United States Con-
stitution :
a. The right not to have a decision by the Adult
Authority, which fixes an inmate’s term and sets
a date for his release on parole, rescinded in the
absence of (a) good cause therefor, and (b) fun-
damental procedural safeguards, secured by the
Due Process Clause of the Fourteenth Amend-
ment;
b. The right not to have their parole revoked
in the absence of (a) good cause therefore, and
(b) fundamental procedural safeguards, secured
by the Due Process Clause of the Fourteenth
Amendment; and
ce. The right not to have term-fixing and parole
release decisions made in the absence of counsel
and other fundamental procedural safeguards,
secured by the Sixth and Fourteenth Amendments
to the United States Constitution.
d. The right not to have disciplinary sanctions
imposed for alleged violation of prison rules, or
reports of said violations placed in inmate central
files in the absence of a fair and impartial inves-
tigation of the facts, a hearing before an impartial
tribunal whenever serious disciplinary sanctions
are considered, the right to counsel whenever ser-
ious sanctions are considered, and the right to
view and examine the inmate’s central fiile, all
of which rights are secured by the Fifth and
45
Sixth Amendments and the Due Process Clause
of the Fourteenth Amendment to the United
States Constitution.
e. The right to be free from prolonged incarcer-
ation and isolation in the absence of any of the
procedural safeguards enumerated above under
conditions which shock the general conscience and
are intolerable to fundamental fairness, which
constitute punishment greatly disproportionate to
any offense for which they are imposed and which
go beyond what is necessary to accomplish any
legitimate penal aim, all secured to plaintiffs
and their class under the Eighth Amendment to
the United States Constitution.
18. An actual controversy has arisen and now
exists relating to the rights and duties of the parties,
in that defendants have denied and continue to deny
to plaintiffs and their subclasses the constitutional
rights set forth in paragraph 17 hereof. As a result
of these violations, plaintiffs and the members of their
subclasses have been and will continue to be irrepar-
ably injured by the aforesaid conduct of defendants
unless this Court grants the declaratory and injunc-
tive relief which they seek. Plaintiffs have no plain,
adequate, or complete remedy at law to redress the
unlawful acts compained of herein.
Wherefore, plaintiffs and their class request that
this Court:
1. Issue a declaratory judgment that the acts of
defendants enumerated in paragraphs 2, 8, 9, 10, 11,
46
12, 13, 14, 15, and 16 of this complaint with respect
to the revocation, rescission, or suspension of parole;
the refixing or fixing of sentences; or the imposition
of sanctions for alleged rules infractions contravene
the rights of plaintiffs and their class under the Fifth,
Sixth, and Eighth Amendments and the Due Process
and Equal Protection Clauses of the Fourteenth
Amendment to the United States Constitution ;
2. Issue a preliminary and thereafter a permanent
injunction requiring defendants, their agents, employ-
ees and representatives to accord plaintiffs and their
classes the following rights:
A. (1) timely notice of all proceedings and hear-
ings to perform any of the acts enumerated in sub-
paragraph B and timely and informative notice of all
charges including a statement of the charge and of
the evidence to be relied upon; and an opportunity to
conduct a timely review of the entire central file;
(2) an opportunity to be heard, to present
witnesses, and to cross-examine witnesses ;
(3) the right to be represented by counsel at
any hearing ;
(4) the right to be heard by an unbiased panel
or official and the right to challenge any panel or
official for cause;
(5) the right to a verbatim transcript of any
hearing and a written statement of the reasons for
performing or refusing to perform the acts enumer-
ated in subparagraph (b) and a written statement of
the evidence relied on;
47
B. The hearings at which the guarantees enumer-
ated above are to be accorded are:
(1) revoking, suspending or rescinding parole
or refixing or otherwise increasing sentences;
(2) fixing or refusing to fix the terms of in-
mates;
(3) imposing serious disciplinary sanctions.
3. Certify that this action may be maintained as
a class action;
4. Grant such other and further relief as to the
Court seems appropriate including retaining juris-
diction in this matter.
Dated: November 15, 1972
Respectfully submitted,
By /s/ B. E. Bergesen, III
B. E. Bergesen, III
Fay Stender
Ezra Hendon
Siegried Hesse
Attorneys for Plaintiffs
48
AFFIDAVIT OF JOHN VAN GELDERN
State of California
County of San Luis Obispo—ss.
John Van Geldern, being first duly sworn, deposes
and says:
On or before July 7, 1972 I caused to be filed in
the United States District Court for the Northern
District of California, a complaint similar but differ-
ent than the complaint in John van Geldern vs. Kerr
et al, involving some of the same plaintiffs and some
of the same defendants, and asking for some relief
similar to that prayed for in van Geldern vs. Kerr.
I prepared the pleadings in the said earlier complaint
in pro per, and the complaint was filed in pro per.
Entitled van Geldern vs. Edmonds it was numbered
C-72-1251 SW, and it was never served. Immediately
after filing said complaint, it was brought to my at-
tention that certain documents necessary to the relief
being sought were not prepared or on file, and during
the time in which I undertook to prepare said docu-
ments, I also was able to interest private counsel, not
in representing the plaintiffs in van Geldern v. Ed-
munds, but in preparing a different lawsuit dealing
with some of the same problems, and additional ones
as well. At the time I caused the earlier case to be
filed, I was unaware of the Local Rule requiring
counsel to file, immediately, a Notice of Related Case
if they believed that their case came within the Local
Rule on Related Cases, and I was specifically unaware
of the case of Hamlin v. Nelson, C-71-342 RFP which
was pending in the Northern District and which raised
most of the issues in Van Geldern v. Edmunds and
in Van Geldern v. Kerr. I thus did not file a Notice
of Related Case at that time. I was also unaware of
other cases pending in the Northern District which
my present counsel inform me may raise many of the
issues raised in Van Geldern v. Kerr.
/s/ John Van Geldern
John Van Geldern
[Jurat Omitted in Printing]
AFFIDAVIT OF GEORGE CHATFIELD
State of California
County of Marin—-ss.
George Chatfield, being first duly sworn, deposes and
says:
I am one of the plaintiffs in the above-entitled action.
I have read the foregoing complaint and the same is
true of my own knowledge, except as to those matters
which are stated to be on information and belief and
as to those matters I believe it to be true.
/s/ George Chatfield
George Chatfield
[Jurat Omitted in Printing]
30
VERIFICATION
State of California
County of San Luis Obispo—ss.
John Van Geldern, being first duly sworn, deposes
and says:
I am one of the plaintiffs in the above-entitled action.
I have read the foregoing complaint and the same is
true of my own knowledge, except as to those matters
stated to be true on information and belief and as to
those matters I believe it to be true.
/s/ John Van Geldern
John Van Geldern
'[Jurat Omitted in Printing]
Arripavit or Ropert NEwToON GARDNER, JR.
State of California
County of San Luis Obispo—ss.
Robert Newton Gardner, Jr. being first duly Sworn,
deposes and says:
I am one of the plaintiffs in the above-entitled action.
I have read the foregoing complaint and the same is
true of my own knowledge, except as to those matters
stated on information and belief and as to those mat-
ters I believe it to be true.
/8/ Robert Newton Gardner, Jr.
Robert Newton Gardner, Jr.
[Jurat Omitted in Printing]
51
In the United States District Court
for the Northern District of California
[Filed June 21, 1973!
[Caption Omitted in Printing]
REQUEST FOR PRODUCTION OF DOCUMENTS
Pursuant to Rule 34 of the Federal Rules of Civil
Procedure, plaintiffs hereby request that defendants,
and each of them, produce for inspection and copying
at 9:00 A.M. on July 21, 1973, at the offices of the
Attorney General of the State of California, 350
McAllister Street, San Francisco, California, each of
the following documents :’
1. All files maintained by the California Adult
Authority and/or by the California Department of
Corrections upon each of the named plaintiffs, includ-
ing without limitation each inmate’s central file, his
so-called AW file, his central office file, and every
other file or portion thereof, including all material
which has been removed from any such file and is still
in the possession of the Adult Authority or the De-
partment of Corrections, or by any subdivision, officer
or employee thereof. These files and materials are
to be produced in their entirety.
ry
ing held by the California Adult Authority or the Celifornia
Department of Corrections) diaries and personal inter-office memo-
randa.
52
2. All documents which set forth the substantive
standards or criteria which the Adult Authority has
used, at any time during the past 5 years, in making
its decisions with respect to (1) parole granting, ( 2)
term fixing, (3) parole recession, and (4) parole
revocation.
3. All documents which have been used by the
Adult Authority or by the Department of Corrections
which. set. forth the procedures to be followed by mem-
bers, hearing representatives and other employees of
the Adult Authority, and by officials or employees of
the Department of Correction, in making the 4 types
of decisions listed in the preceding item, as well as the
contemplated role of inmates in those proceedings.
4. The agendas prepared for, and the minutes or
summaries of, each meeting held by the Adult Au-
thority or by any committee or subdivision thereof,
including without limiiation the minutes of all Exee-
utive Meetings and all Special Meetings, for the last
> years.
5. Every general index, or guide, or table of con-
tents, or similar document with respect to the files
maintained by the Adult Authority.
6. CDC Memorandum signed by R. E. Doran,
dated July 19, 1972, addressed “Attention: Classifica-
tion and Parole Representatives” and sent to each
institution operated by the California Department of
Corrections.
7. All files, including all personnel files, which are
maintained by the Adult Authority or by the Depart-
53
ment of Corrections, or by any officer or employee
thereof, with respect to each member, each hearing
representative, and the Executive Officer of the Adult
Authority.
8. The monthly itineraries which list the day-by-
day assignments of all of the Adult Authority mem-
bers and hearing representatives at the various insti-
tutions, or in Sacramento.
9. A copy of the testimony of each member or
hearing representative or the Executive Officer of the
Adult Authority before any executive, judicial, or
legislative body (e.g. a legislative committee or sub-
committee) given within the past 5 years.
10. The full texts (or summaries, if texts are not
available) of each speech made before any group
whatsoever, whether public or private, or on any
radio or television program, or in any panel discus-
sion or conference, made by any member or hearing
representative or the Executive Officer of the Adult
Authority during the past 5 years. .
11. Each list of appearances before public or pri-
vate groups or organizations made by any member
or hearing representative or the Executive Officer of
the Adult Authority during the past 5 years.
12. All statistics whatsoever concerning the opera-
tion and performance of the California Adult Author-
itv and any of its members, hearing representatives
or the Executive Officer during the past 5 years.
Solely by way of example, and without limiting in any
way the generality of this particular request, statis-
tics should be published showing, for each year (or
o4
month, if possible) the percentage of inmates granted
parole, broken down by institution, crime, amount of
time served, and the like; the number and percent
of inmates who have had parole rescinded or revoked;
the voting records of the individual members and rep-
resentatives (e.g. in terms of number and percent of
paroles granted/denied, paroles revoked/not revoked,
ete.;) and each one of the monthly reports referred
to by defendant Kerr at page 19 of his deposition -
taken on January 22, 1973.
13. Each document which shows the voting records
of every member and hearing representative for the
past 5 years.
14. Each report submitted by any member, hearing
representative, Executive Officer, or any other em-
ployee or official of the Adult Authority, including
without limitation all reports of the type indicated at
lines 9-11 of page 21 of the aforementioned deposition.
15. All written statements written or delivered by
any member or hearing representative or the Execu-
tive Officer of the Adult Authority during the past
5 years favoring, opposing, or in any way comment-
ing upon bills or other legislation or legislative pro-
posal pending in the U.S. Hou. »f Representatives,
the Senate of the United States, o California
Legislature.
16. A copy of the most detailed breakdown of the
Adult Authority budget for each of the nast 5 years.
17. All studies of the Adult Authority prepared
or issued by any source whatsoever, including without
limitation (1) the Adult Authority or any member,
55
hearing representative, official or employee thereof,
(2) any executive, judicial, legislative or other gov-
ernmental agency or organization, (3) any private
foundation or other private individual or organiza-
tion.
18. All written proposals for any change whatso-
ever in the organization or operation of, qualifica-
tions for, or substantive criteria and procedures to be
employed by the Adult Authority, including without
limitation any of the individuals or groups listed in
the foregoing item.
19. All articles prepared for publication (whether
or not they were ever published) by any member,
hearing representative, official or employee of the
Adult Authority.
20. All memoranda written by the Chairman of the
Adult Authority during the past 5 years, no matter
to whom sent, including without limitation memo-
randa sent to other government organizations, agen-
cies or officials, or to other members, hearing
representatives, officials or employees of the Adult
Authority.
21. All documents in effect on November 15, 1972
which pertain to any Policy Statement or Resolution
issued by the Adult Authority, including without lim-
itation any file maintained on any Resolution or
Policy Statement and all such documents executed or
issued subsequent to that date.
22. All documents, however formal or informal,
issued during the past calendar year, which concern
the Adult Authority’s adoption of new policies, pro-
56
cedures, criteria, and the like, to be followed by mem-
bers, hearing representatives, officials and employees,
including without limitation all documents relating
to a) Policy Statement No. 24, Adopted March 27,
1973, and b) Resolution No. 129, revised and reissued
May 21, 1973.
With respect to any and all of the foregoing docu-
ments, reference is made to said documents as they
existed on June 21, 1973, together with all additions
thereto between said date and the actual date of in-
spection by attorneys for plaintiffs. In other words,
no such documents are to be withheld from said in-
spection, even though they might in the ordinary
course be discarded or destroyed by defendants prior
to the inspection date.
Inspection and copying shall continue from day to
day until attorneys for plaintiffs have completed their
review of these documents.
Dated: June 19, 1973
B. E. Bergesen, ITT
Fay Stender
Ezra Hendon
Siegfried Hesse
/s/ Ezra Hendon
Attorneys for Plaintiffs
[Statement of Service Omitted in Printing]
57
United States District Court
Northern District of California
[Filed November 30, 1973]
[Caption Omitted in Printing]
DEFENDANTS’ RESPONSE TO PLAINTIFFS’ REQUEST
FOR Propucri0on OF DOCUMENTS
Plaintiffs have requested, pursuant to Rule 34 of
the Federal Rules of Civil Procedure the production
of the documents listed below.
The documents which will be produced pursuant to
plaintiffs’ requests will be made available for inspec-
tion at the agency or department in whose custody
those documents are normally kept. Inspection may
take place only during the normal office hours of that
agency or department and pursuant to any regulations
promulgated by it pursuant to California Government
Code section 0253. Notice must be given to the rec-
ords officer who has custody over the documents sought
at least ten working days prior to the date inspection
is desired. Inspection of documents listed in the notice
must be completed within sixty days of commencing
inspection. All copying is to be done at plaintiffs’ ex-
pense, on the premises and under the supervision of
the agency or department involved. Unless otherwise
stated all documents will be produced at the office of
the Adult Authority in Sacramento.
1. “All files maintained by the California Adult
Authority and/or by the California Department of
Corrections upon each of the named plaintiffs, includ-
ing without limitation cach inmate’s central file, his
so-called AW file, his central office file, and every
58
other file or portion thereof, including all material
which has been removed from any such file and is
still in the possession of the Adult Authority or the
Department of Corrections, or by any subdivision,
officer or employee thereof. These files and materials
are to be produced in their entirety.”
According to the provisions of the California Penal
Code section 2081.5 these documents may not be dis-
closed absent a waiver of that privilege. Calif. Evid.
Code § 1040(b) (1). With respect to the inmate’s cen-
tral file a limited waiver of privilege has been made
and the items contained therein listed in Appendix A
attached to this response will be produced. Those items
listed in Appendix B will be produced after review
if found not to contain confidential matter. No waiver
has been entered as to the rest of the inmate’s central
file. They will be available for inspection at the insti-
tution where the individual plaintiffs concerned is
confined. For those plaintiffs on parole their files are
available at the regional parole office for the area to
which they have been paroled. For the plaintiff on
parole out of state his file is available at the interstate
parole office located in Sacramento.
2. “All documents which set forth the substantive
standards or criteria which the Adult Authority has
used, at any time during the past 5 years, in making
its decision with respect to (1) parole granting, (2)
term-fixing, (3) parole recession, and (4) parole revo-
cation.”
The regulations, resolutions, and policy statements
of the Adult Authority, to the extent that they exist
59
and are in the custody or under control of a party
to this action will be made available at the Adult
Authority’s office in Sacramento. To the extent this
request may seek material privileged by California
Government Code section 6254(a) defendants object.
3. “All documents which have been used by the
Adult Authority or by the Department of Corrections
which set forth the procedures to be followed by mem-
bers, hearing representatives, and other employees of
the Adult Authority, and by officials or employees of
the Department of Corrections, in making the 4 types
of decisions listed in the preceding item, ws well as the
contemplated role of inmates in those proceedings.”
Defendants are unable to determine from the de-
scription of the request if any such documents exist
or are in their custody or under their control beyond
those which will be produced pursuant to request No.
2 above.
4. “The agendas prepared for, and’ the minutes or
summaries of, each meeting held by the Adult Author-
ity or by any committee or subdivision thereof, includ-
ing without limitation the minutes of all Exeutive
Meetings and ali Special Meetings, for the last 5
years.”
The purpose of the California Adult Authority
meetings are to make a full and complete study of
the cases of all prisoners whose terms of imprison-
ment are to be determined by them. Hence, documents
sought to be produced by this request would involve
disclosure of information acquired in confidence by
the California Adult Authority concerning virtually
60
every adult male inmate who has been confined in a
California state penal institution during the last five
years, The California Adult Authority asserts the
privilege against the disclosure of this information.
See Calif. Govt. Code §§ 6254(a), (c), (f) & (k) ; Calif.
Evid. Code § 1040(b) (1), (2).
o. “Every general index, or guide, or table of con-
tents, or similar document with respect to the files
maintained by the Adult Authority.”
Defendants object to the production of those docu-
ments requested in this item pursuant to Federal
Rules of Civil Procedure 26(b)(1) since the defend-
ants cannot perceive the relevance of these items to
the subject matter of this litigation. Most of the files
maintained by the California Adult Authority contain
privileged material or are privileged themselves. Their
indexes, guides, tables of contents, etc. share that
privilege.
6. “CDC Memorandum signed by R. E. Doran,
dated July 19, 1972, addressed “Attention: Classi-
fication and Paroie Representatives” and sent to each
institution operated by the California Department of
Corrections.”
Defendants object to the production of this inter-
agency memoranda and questions its relevancy to the
subject matter of the instant litigation. See Celif.
Govt. Code § 6254(a); Rule 26(b)(1), Fed. Rules of
Civ. Proc.
7. “All files, including all personnel files, which
are maintained by the Adult Authority or by the
<2
61
Department of Corrections, or by any officer or em-
ployee thereof, with respect to each member, each
hearing representative, and the Executive Officer of
the Adult Authority.”
The California Adult Authority asserts the privi-
lege against disclosure of these documents conferred
by California Government Code section 6254(c) and
California Evidence Code section 1040(b) (1).
8. “The monthly itineraries which list the day-by-
day assignments of all of the Adult Authority
members and hearing representatives at the various
institutions, or in Sacramento.”
To the extent that the monthly itineraries of past
assignments exist they will be made available. Defend-
ants object to the production of monthly itineraries
for future assignments on the grounds that they are
irrelevant to the subject matter of the instant action
and their disclosure could impair the security of the
members of the Adult Authority. It should be under-
stood that the past itineraries in defendants’ posses-
sion do not reflect any changes which may have
occurred following their publication.
9. “A copy of the testimony of each member or
hearing representative or the Executive Officer of the
Adult Authority before any executive, judicial, or
legislative body (e.g., a legislative committee or sub-
committee) given within the past 5 vears.”
Defendants do not possess the material requested
and suggest plaintiffs pursue the remedy provided by
Rule 34(c) of the Federal Rules of Civil Procedure.
62
10. “The full texts (or summaries, if texts are not
available) of each speech made before any group
whatsoever, whether public or private, or on any radio
or television program, or in any panel discussion or
conference, made by any member or hearing repre-
sentative or the Executive Officer of the Adult Au-
thority during the past 5 years.”
Defendants object to this request on the grounds
that it does not describe the items requested with suf-
ficient particularity so that they can determine what
is sought. See Fed. Rules of Civ. Proc. 34(b). Spe-
cifically, defendants object to such vague language
“any group whatsoever.” Moreover, the scope of the
request is not limited to matters relevant to the sub-
ject matter of the instant case and defendants should
not be put to the burden of determining what, in the
plaintiffs’ view is relevant.
However, to the extent the defendants can identify
material sought by this request which exists, and is
within their custody or control they will make it avail-
able to the plaintiffs.
11. “Each list of appearances before public or pri-
vate groups or organizations made by any member
or hearing representative or the Executive Officer or
the Adult Authority during the past 5 years.”
To the extent such list exists, are within the custody
or control of the defendants, and not previously pro-
vided by their response to request No. 8 above they
will be made available.
63
12. “All statistics whatsoever concerning the opera-
tion and performance of the California Adult Author-
ity and any of its members, hearing representatives
or the Executive Officer during the past 5 years.
Solely by way of example, and without limiting in
any way the generality of this particular request, sta-
tistics should be published showing, for each year
(or month, if possible) the percentage of inmates
granted parole, broken down by institution, crime, or
amount of time served, and the like; the number and
percent of inmates who have had parole rescinded or
revoked ; the voting records of the individual members
and representatives (e¢.g., in terms of number and
percent of paroles granted/denied, paroles revoked/
not revoked, ete.) and each one of the monthly re-
ports referred to by defendant Kerr at page 19 of his
deposition taken on January 22, 1973.”
Defendants object to this request upon the grounds
that it does not describe the material sought with suf-
ficient particularity. See Fed. Rules of Civ. Proc.,
Rule 34(b). Specifically, defendants object to such
vague language as “all statistics whatsoever” and
“without limiting in any the generality of this par-
ticular request.”
However, to the extent that defendants can deter-
mine from the request those statistics which are rele-
vant to the subject matter of the instant litigation,
which exist within their custody or control, they will
be made available.
U4
13. “Each document which shows the voting rec-
ords of every member and hearing representative for
the past 5 years.”
Defendants object to the vagueness of this request.
Specifically to the language “each document” defend-
ants should not be put in a position having to deter-
mine which documents this request pertains.
| Moreover, the items sought by this request are priv-
ileged by the provisions of the California Government
Code section 6254(a) and (k) which privilege is as-
serted by the California Adult Authority.
14. “Each report submitted by any member, hear-
ing representative, Executive Officer, or any other
employee or official of the Adult Authority, including
without limitation all reports of the type indicated at
lines 9-11 of page 21 of the aforementioned deposi-
tion.”
Defendants object to this request on the basis that
it does not describe the items requested with reason-
able particularity. See Fed. Rules of Civ. Proce. JA(b).
They should not be put to the burden of having to
determine which if any of these reports are relevant
to the subject matter of this litigation. Compare, Fed.
Rules of Civ. Proc, 26(b) (1).
Moreover, reports of the type referred to by Mr.
Kerr in his deposition are privileged under the terms
of California Government Code section 6254(f ) and
the Adult Authority asserts the privilege against dis-
closure conferred by California Evidence Code section
1040(b) (1).
15. “All written statements written or delivered by
any member or hearing representative or the Execu-
tive Officer of the Adult Authority during the past 5
years favoring, opposing, or in any way commenting
upon bills or other legislation or legislative proposal
pending in the United States House of Representa-
tives, the Senate of the United States, or the California
Legislature.”
To the extent this request seeks documents not here-
tofore made available in response to items 9 and 10
above it seeks matter privileged under California Gov-
ernment Code section 6234(a) and the California
Adult Authority asserts this privilege.
16. “A copy of the most detailed breakdown of the
Adult Authority budget for each of the past 5 years.”
Defendants object to this request in that it is over-
broad, seeks matter not relevant to the subject matter
of the instant litigation, and places the defendants in
a position of having to determine which if any items
are properly requested. A copy of the budget of the
State of California is published annually and avail-
able to plaintiffs at most libraries. It contains the bud-
get for the California Adult Authority. An additional
breakdown of any item listed in the published budget,
relevant to the subject matter in the instant litigation
will be provided to plaintiffs upon request.
17. “All studies of the Adult Authority prepared
or issued by any source whatsoever, including without
limitation (1) the Adult Authority or any member,
hearing representative, official or employee thereof,
66
(2) any executive, judicial, legislative or other gov-
ernmental agency or organization, (3) any private
aw or other private individual or organiza-
Defendants object to the scope of this request in
that it seeks material irrelevant to the subject matter
of the instant litigation and does not describe the ma-
terial sought with sufficient particularity so that the
defendants can identify it. Defendants specifically
object to such vague language as “issued by any source
whatsoever.”
Moreover, the request attempts to compel the de-
fendants to produce material which is not within their
custody or control. Defendants suggest if plaintiffs
wish this type of information they proceed pursuant
to Federal Rule of Civil Procedure 34(c) and bring
an independent action against “any executive, judicial,
legislative or other governmental agency or organiza-
tion, any private foundation or other private indi-
vidual or organization” which they feel may have
material relevant to the instant action.
However, to the extent that the defendants are able
to identify material apparently sought by this request,
which exists, is within their custody or control and
has previously been published they will make it avail-
able to plaintiffs. With respect to studies or reports
not previously published the California Adult Au-
thority asserts the privilege against disclosure con-
~ by California Government Code section 6254
(f).
18. “All written proposals for any change what-
soever in the organization or operation of, qualifica-
67
tions for, or substantive criteria and procedures to be
employed by the Adult Authority, including without
limitation any of the individuals or groups listed in
the foregoing item.”
~ Defendants object to the scope of this request in
that it seeks material irrelevant to the subject matter
of the instant litigation, and does not describe with
sufficient particularity the material sought so that the
defendants can identify it.
Defendants further object on the grounds of the
language of the request is too vague for them to iden-
tify the items sought. Specifically they object to such
language as “any change whatsoever.” The defendants
object to the request insofar as it seeks articles pre-
pared by or in the custody and control of persons
not parties to this action.
19. “All articles prepared for publication (whether
or not they were ever published) by any member,
hearing representative, official or employee of the
Adult Authority.”
To the extent that the defendants are able to iden-
tify material sought by this request which was in fact
published and still exists within their custody or con-
trol it will be produced.
The defendants object to the request insofar as it
seeks articles prepared by or in the custody and con-
trol of persons not parties to this action.
With respect to unpublished works the California
Adult Authority asserts the privilege of California
Government Code section 6254(a) and California Evi-
dence Code section 1040(b) (2).
68
Defendants further object on the basis that the
material sought is not relevant to the subject matter
of the litigation involved in this case.
20. “All memoranda written by the Chairman of
the Adult Authority during the past 5 years, no
matter to whom sent, including without limitation
memoranda sent to other government organizations,
agencies or officials, or to other members, hearing
representative, officials or employees of the Adult
Authority.”
Defendants object to this request on the basis that
it is too broad for them to determine whether or not
it seeks material relevant to the subject matter of this
litigation. Moreover, it seeks material to which the
California Adult Authority asserts the privilege
against disclosure. See Calif. Govt. Code §§ 6254(a)
and (f).
21. “All documents in effect on November 15, 1972
which pertain to any Policy Statement or Resolution
issued by the Adult Authority, including without limi-
tation any file maintained on any Resolution or Policy
Statement and all such documents executed or issued
subsequent to that date.”
To the extent not already provided in response to
request No. 2 above the California Adult Authority
asserts the privilege against disclosure conferred by
California Government Code sections 6254(a) and (f)
and California Evidence Code section 1040(b) (1).
22. “All documents, however formal or informal,
issued during the past calendar year, which concern
the Adult Authority’s adoption of new policies, pro-
cedures, criteria, and the like, to be followed by mem-
bers, hearing representatives, officials and employees,
including without limitation all documents relating to
(a) Policy Statement No. 24, Adopted March 27, 1973,
and (b) Resolution No. 129, revised and. reissued. May
21, 1973.”
To the extent not already provided in response to
request No. 2. above, the Adult Authority asserts the
privilege against disclosure conferred by California
Government Code section 6254(a) and (f) and Cali-
fornia Evidence Code section 1040(b) (1).
Dated: November 30, 1973.
Evelle J, Younger, Attorney
General
Edward A. Hinz, Jr., Chief
Assistant Attorney General
—Criminal Division
Doris H. Maier, Assistant
Attorney General—Writs
Section |
John T. Murphy, Deputy
Attorney General
/s/ William D. Stein
William D. Stein, Deputy
Attorney General
Attorneys for Defendants
WDS :md
70
PoINTs AND AUTHORITIES IN SUPPORT OF DEFENDANTS’
OBJECTIONS TO PRODUCTION
Federal Rule of Civil Procedure 26(b)(1) limits
the scope of discovery to “matter, not privileged,
which is relevant to the subject matter involved in the
pending action.” Many records maintained by public
agencies such as the California Department of Cor-
rections and the California Adult Authority are sub-
ject to a claim of privilege by those agencies on the
theory that such information is confidential in nature
and its disclosure is not compelled by the public in-
terest. Whether material is privileged is to be deter-
mined according to the law of evidence which will
govern the trial. See Moore’s Fed. Prac. Digest,
{ 26.60(1). Where there is no conflict between the
applicable law of evidence and the rules of ‘evidence
applied in the courts of general jurisdiction of the
state in which the United States district court is held,
the law of the latter jurisdiction should be applied.
See Fed. Rules of Civ. Proc., Rule 43(a); Moore’s
Fed. Prac. Digest, 1 43.07.
The privilege against disclosure asserted by the
California Department of Corrections and the Cali-
fornia Adult Authority through the defendants’ ob-
jections to the production of some items requested by
plaintiffs rests on California Evidence Code section
1040(b) (1). That section provides in pertinent part
that these departments have a privilege to refuse to
disclose information acquired in confidence by their
employees where disclosure is forbidden by an act of
the Congress of the United States or a statute of this
State. The California courts have uniformly recog-
71
nized that the provisions of California Government
Code section 6254(a), (c), and (f) and Penal Code
section 2081.5 prohibit disclosure of this material.
Yarish v. Nelson, 27 Cal.App.3d 893, 901-902, 104 Cal.
Rptr. 205, 211-212 (1972); cf. In re Harrell, 2 Cal.3d
675, 691, 87 Cal.Rptr. 504, 514 (1970) ; Alanis v. Supe-
rior Court, 1 Cal.3d 784, 787, 83 Cal.Rptr. 355, 357
(1970). California Evidence Code section 1040(b) (2)
recognizes an additional privilege of a public entity
to refuse to disclose official information where such
disclosure would be against the public interest due to
the necessity for preserving the confidentiality of the
information which outweighs the necessity for its dis-
closure in the interests of justice. See also California
Government Code section 6255 which allows a public
agency to withhold records for public policy reasons.
Included in the class of documents treated as confi-
dential by a mandate of public policy are documents
and records kept on file in public institutions con-
cerning the care and treatment of inmates thereof,
and files of those charged with the punishment of
criminals. Yarish v. Nelson, supra, 27 Cal.3d at 902,
104 Cal.Rptr. at 212.
These privileges and exemptions from disclosure
of public records maintained by the California De-
partment of Corrections and the California Adult Au-
thority are substantially identical to the Federal Pub-
lic Information Act which is codified in Title 5,
United States Code section 552, subd. (bh). The legis-
lative history of the federal statute demonstrates the
Congressional determination that certain types of offi-
cial records are not subject to disclosure. See 2 U.S.
72
Congressional and Administrative News, p. 2148, et
seq. (1966). The federal courts recognize that among
the records exempted from disclosure are prison and
prisoner records. See Tarlton v. United States, 430
F.2d 1351 (5th Cir. 1970).
There being no conflict between the applicable state
and federal rules of evidence concerning the privilege
against disclosure of the records of the California
Department of Corrections and the California Adult
Authority the privilege created by California law
should be recognized and applied in this case. Com-
pare Baird v. Koerner, 279 F.2d 623, 628 (9th Cir.
1960).
Dated: November 30, 1973.
Evelle J. Younger, Attorney
General ;
Edward A. Hinz, Jr., Chief
Assistant Attorney General
—Criminal Division
Doris H. Maier, Assistant
Attorney General—Writs
- S$Seetion
John T. Murphy, Deputy
Attorney General
/s/ William D. Stein
William D. Stein, Deputy
Attorney General
Attorneys for Defendants
WDS :md
SF CR
023357
73
Appendiz A
Judgment and Commitments
Informations or Indictments
Transcript of Proceedings at time of Sentencing
Appellate and/or Supreme Court Decisions
Copies of inmate Petitions for Writs
Legal Status Report—CDC 195
Summary of Sentence Data—CDC 112
Certifications of Adult Authority Actions—CDC 245
Statements of Judge, Defense Counsel, Law-enforce-
ment agency, and District Attorney per Sec. 1203.01
PC, except inmate with life sentence
Probation Officer’s Report
Arrest Reports
Property and Cash Receipts—CDC 104
Property and Cash Release—CDC 122
Body Receipts—CDC 123
Notice of Complaint—CDC 263
Recommendation of Disciplinary Committee & Adult
Authority Action—CDC 264
Warrants and Detainers and Related Correspondence
Parole Violation Charges & Supportive Statements—
CDC 1518
Work Supervisor’s Report—CDC 101
Chrono-Education, High School Progress Report
(Gray)—CDC 128D
Chrono-Vocational Training Report (Blue) — CDC
128E
74
Chrono-Education, Elementary Report (Green) —
CDC 128F
Chrono-Interagency Services (Salmon)—CDC 128H
Chrono-Group Counseling Assignment (White) —
CDC 1281
Chrono-Group Counseling Drop (White)—CDC 128J
Chrono-Authorization for Deposit (Green) — CDC
128K
Chrono-Education, College Progress Report — CDC
128L
CDC Fingerprint Cards—CDC 138
Power of Attorney—CDC 345
Inmate Accident Report—CDC 270
Psychological Test Results—CDC 209
Application for Mail & Visiting Privileges—CDC 105
Mail & Visiting Questionnaire—CDC 106
Vocational Trade Evaluation—CDC 153
Trade & Industry Work Experience—CDC 153A
Application for Employment—CDC 147
Notice of Offer of Employment—CDC 148
Approval of Temporary Release—CDC 601
Request for Temporary Release Under Section 2690
PC or 3306 W&I Code
Notice of Adult Authority Hearing—CDC 110
Notice to Officials of Adult Authority Hearing—CDC
145
Inquiry to Local Law Enforcement Agency—CDC 206
Adult Authority Request for Transfer—CDC 267
75
Adult Authority Special Proceeding Vote Sheet
Conditions of Parole—CDC 1515
Release—CDC 146
Classification and Assignment Sheet—CDC 262
Inmate Mail Record—CDC 119
Record of Inmate Visits—CDC 120
Appendiz B
Report of Violation of Institution Rules—CDC 115
Incident Reports
General Correspondence
Chrono-Custody or General (White)—CDC 128A
Chrono-Classification & Social Service (Canary) —
CDC 128B
Chrono-Medical, Psychiatric, Dental (Pink) — CDC
128C
Chrono-Classification Committee (Orange) — CDC
128G
[Statement of Service Omitted in Printing]
76
In the United States District Court
for the Northern District of California
[Filed March 11, 1974]
{Caption Omitted in Printing]
NOTICE OF MOTION AND MOTION FOR AN ORDER
CoMPELLING DIscovVERY PURSUANT TO
RvuLeE 37, FEDERAL RULES OF
CiviL PROCEDURE
To defendants and to their attorneys of record:
please take notice that on March 29, 1974, at 10:00
A.M., or soon thereafter as Counsel may be heard,
plaintiffs will move this Court before United States
Magistrate David R. Urdan, Federal Building, San
Francisco, California, for an order compelling defen-
dants herein to answer certain interrogatories previ-
ously served upon them pursuant to Rule 33, Federal
Rules of Civil Procedure, and to produce for inspec-
tion and copying certain documents previously re-
quested pursuant to Rule 34, Federal Rules of Civil
Procedure. At said time and place plaintiffs will fur-
ther move the Court for an order awarding to plain-
tiffs the costs reasonably incurred by them in obtain-
ing the aforementioned order to compel.
This motion is made upon the ground that under
the Federal Rules of Civil Procedure plaintiffs are
entitled to receive said answers and to inspect said
documents, and that defendants are not substantially
justified in opposing said discovery and thereby re-
quiring plaintiffs to obtain this motion to compel.
77
This motion is based upon the Affidavit of B. E.
Bergesen, III, the proposed Order, and the Memo-
randum of Points and Authorities in support hereof,
all of which are annexed hereto and served and filed
herewith, and upon the pleadings and all of the docu-
ments on file herein.
Dated: February 28, 1974.
B. E. Bergesen, III
Fay Stender
Sidney M. Wolinsky
/s/_ B. E. Bergesen, ITI
Attorneys for Plaintiffs
78
In the United States District Court
for the Northern District of California
[Caption Omitted in Printing]
Arripavit or B. E. Bercesen, II], 1n Support or
PLAINTIFFS’ MOTION FOR AN ORDER COMPELLING
DIscovERY PURSUANT TO RULE 37, FEDERAL
Ruies or Crvi. PROCEDURE
I, B. E. Bergesen, III, being duly sworn, depose
and say:
1. I am a member of the Bar of this Court and
one of the attorneys for plaintiffs in the above-cap-
tioned case.
2. During several visits to Deuel Vocational In-
stitution, a prison operated by the California Depart-
ment of Corrections, I observed a memorandum
posted upon a bulletin board in that institution. The
memorandum, dated July 19, 1971, and addressed to
each institution run by the Department of Correc-
tions, was from one R. E. Doran who, upon informa-
tion and belief, was formerly the Chief Classification
Officer for the Department of Corrections. (See gex-
erally a paper written by Mr. Doran for the American
Justice Institute, dated December, 1970, entitled “The
Process of Organizational Stereotyping: The Case of
the Adjustment Center Classification Committe, filed
as plaintiffs’ Exhibit No. 66 in Charles v. Patterson,
No. C-71 1337 SAW (N.D. Cal.)). This memorandum
reads in part as follows:
“Some inmates become tongue-tied or emotionally
involved, and during the course of the interview
79
forget what they really desire to discuss with the
Board.
¢
3. Pursuant to Local Rule 116 of this Court, plain-
tiffs’ counsel requested an informal conference with
opposing counsel. That request was granted and on
March 5, 1974, I and my co-counsel, Sidney M. Wolin-
sky, met with William D. Stein, Deputy Attorney
General, the attorney for defendants herein, at his
office. During this meeting, which lasted about an
hour, counsel for plaintiffs did make a good faith
attempt to resolve differences insofar as possible with-
out court intervention. Although the meeting was
amicable throughout, defendants’ counsel was not
willing to make any significant change in the position
of his clients and did not agree to supply any further
answers to interrogatories, or to produce any addi-
tional documents.
4. In preparing the instant motion to compel and
supporting papers, counsel for plaintiffs have in-
curred expenses in the approximate amount of $750.00.
Most of this amount is attributable to the time spent
by this affiant and his co-counsel in researching the
law; in preparing a supporting memorandum of law
and the other papers being filed herewith; and in pre-
paring for and participating in a hearing on the mo-
tion. Other miscellaneous costs include those for
photocopying these documents.
/s/ B. E. Bergesen, ITT
B. E. Bergesen, ITT
[Jurat Omitted in Printing]
80
[Title Page, Table of Contents, Table of Authorities
and Caption Omitted in Printing)
MEMORANDUM OF POINTS AND AUTHORITIES
In Support or PiArntirrs’ MOTION FOR AN ORDER
CoMPELLING Discovery PursuaNT TO RULE 37,
FeperaL Ruwes or Crvi PROCEDURE
Introduction
In their response to plaintiffs’ Rule 33 interroga-
tories and Rule 34 request for production of docu-
ments, defendants have made a mockery out of the
federal discovery process. For not only have defend-
ants refused to produce obviously discoverable docu-
ments, they have done so by invoking patently
spurious grounds and by refusing to make any show-
ing whatever with respect to their objections. Rarely,
if ever, have counsel for plaintiffs experienced such
an intransigent refusal to comply with the letter or
the spirit of the discovery rules contained in the Fed-
eral Rules of Civil Procedure.
Defendants’ preliminary efforts, in this Court and
in the Ninth Circuit, to have this case dismissed on
the pleadings has already been summarized in another
document.' When these efforts failed, and plaintiffs
served defendants with the Rule 33 interrogatories
and the Rule 34 request for production of documents
which are the subject of the instant motion to compel,
1See plaintiffs’ memorandum of points and authorities in support
of plaintiffs’ motion for an order pursuant to Rule 34, ete.,
herein on October 23, 1973.
81
defendants simply refused to submit any response
whatsoever, until ordered to do so by this Court.? In
this memorandum we deal with defendants’ third line
of defense, i.e. the interposition of objections to the
interrogatories and requests which are, for the most
part, wholly without merit.* |
Empirical studies have shown that so far as Rule 34
requests for production are concerned, they are almost
always honored by the answering party, and that in
the great majority of cases the documents requested
are produced without court intervention. See Section I,
infra, at pages 6-7.* Doubtless this Court knows from
its own first-hand experience that in most cases the
broad discovery provided by the Federal Rules of
Civil Procedure is accepted by opposing counsel, who
devote their energies to exchanging and analyzing the
basic documents, rather than attempting to withhold
them from the other side. Unfortunately, this is not
the approach which has been taken by these defend-
ants who, as we shall show, have instead filed patently
specious objections; have consistently failed to carry
2See Order filed November 15, 1973.
’Plaintiffs have served (1) one set of interrogatories, pursuant
to Rule 33, which each defendant has answered separately, and (2)
one request for production of documents, pursuant to Rule 34, as
to which all defendants have collectively submitted one answer.
With respect to some interrogatories, all defendants have submitted
identical answers, and where this is so reference will be made,
in this memorandum and the Appendix hereto, to “Interrogatory
No. ..........;” Where the answers of the defendants differ, reference
will be made to, e.g., “Hoover Interrogatory No. ............ ” The sepa-
rate items contained in —— Rule 34 request for production
will be referred to as “Plaintiffs’ Request No. ........ ” or “Defend-
ants’ Response No. ........... Da
*Pagination of all cross-references is as set forth in original
documents.
82
their burden of showing that any given objection is
justified, but instead relied solely upon conclusory
statements of counsel; and, in many cases, have given
answers that do not enable plaintiffs or this Court to
know whether the documents requested are even in
existence. Hence plaintiffs have been required to file
this motion to compel production under Rule 37(a),
with its inevitable effect of creating further delay
and requiring additional court time. And, because de-
fendants have so flagrantly violated both the letter
and the spirit of the discovery rules, plaintiffs are
seeking the expenses to which they are entitled under
Rule 37(a) (4). It is plaintiffs’ hope that the combina-
tion of a strong order to compel plus an award of
expenses will, during the remainder of this lawsuit,
“discourage unnecessary recourse to the courts.” 4A
Moore’s Federal Practice, 137.02[10] at 37-44 (1972
ed.).
In this memorandum, plaintiffs will briefly discuss
general discovery principles, and thereafter will show
that defendants’ responses are inadequate in form;
that defendants have failed to make the requisite show-
ing to support their objections; that defendants’
objections based upon relevance, undue burden, inade-
quate specificity and privilege are without merit; and
that plaintiffs should be awarded the expenses in-
curred by them in obtaining a motion to compel.
However, since most of defendants’ incomplete an-
swers or improper objections can be rebutted only by
a specific discussion thereof, plaintiffs will treat each
such answer or objection seriatim in Appendix A
83
hereto, relying at that point upon the analysis of legal
principles contained in this memorandum.
ARGUMENT
I
Unper WELL Setritep PRINCIPLES oF FEepERAL Law,
Discovery Ruies ARE TO BE ACCORDED A BROAD AND
LIBERAL TREATMENT, So THat a Cise May Be De-
CIDED UPON THE Basis oF ALL THE RELEVANT Facts
Normally it would not be necessary to recite those
basic principles concerning the scope of discovery
which, by now, have become so familiar to courts,
commentators, and to most litigants. Yet defendants’
intransigent refusal to submit full and proper answers
compels a brief review of those principles at the be-
ginning of this memorandum,
In 1947 the United States Supreme Court said:
“We agree, of course, that the deposition-discov-
ery rules are to be accorded a broad and liberal
treatment. No longer can the time-honored cry of
_ “fishing expedition” serve to preclude a party
from inquiring into the facts underlying his op-
ponent’s case. Mutual knowledge of all the rele-
vant facts gathered by both parties is essential
to proper litigation. To that end, either party may
compel the other to disgorge whatever facts he
has in his possession, * * * Thus civil trials in the
federal courts no longer need be carried on in the
dark. The way is now clear, consistent with rec-
ognized privileges, for the parties to obtain the
fullest possible knowledge of the issues and facts
before trial.” Hickman v. Taylor, 329 U.S. 495,
507-08, 500 (1947).
&4
As noted by the Advisory Committee, the “purpose of
discovery is to allow a broad search for facts, the
names of witnesses, or any other matters which may
uid a party in the preparation or presentation of
his case.” Committee Note of 1946 to Amended Sub-
section (b) of Rule 26. Thus the courts “have recog-
nized the utility of the discovery rules and have con-
strued them liberally so that they may achieve the
purposes for which they are intended.” 8 Wright &
Miller, Federal Practice and Procedure, §2001 at 17
(1970 ed.) ; 4 Moore’s Federal Practice, Il 26.02, 26.56.
Professor Wright has said that the main purposes
of discovery are “to avoid surprise and the possible
miscarriage of justice, to disclose fully the nature and
scope of the controversy, to narrow, simplify and
frame the issues involved, and to enable the party to
obtain the information needed to prepare for trial.”
8 Wright & Miller, supra, at 18-19. The end result is
to put an end to the “sporting theory of justice,” un-
der which the result “depends on the fortuitous avail-
ability of evidence or the skill and strategy of
counsel.” Jd. at 18-19. Or, as the Ninth Circuit has
put it,
“to take the sporting element out of litigation,
partly by affording each party full access to evi-
dence in the control of his opponent. To that end,
Rule 34, like the other rules relating to discovery,
is to be liberally construed.” Martin v. Reynolds
Metals Corporation, 297 F.2d 49, 56 (9th Cir.
1961).
It is also clear that the scope of discovery is much
broader at the pretrial stage than it is at trial. 8
85
Wright & Miller, supra, §2001. For example, Rule 26
was amended in 1946 to provide that inadmissibility
at trial is no ground for objection to discovery “if the
testimony .sought appears reasonably calculated to
lead to the discovery of admissible evidence.” Rule
26(b); see also Advisory Committee Note of 1946 to
Amended Subsection (b) of Rule 26. Thus the “scope
of discovery has been made very broad and the restric-
tions imposed upon it are chiefly directed at the use
of, rather than the acquisition of, the information
discovered.” 8 Wright & Miller, supra, at 15.
But in the case at bar—brought under $1983 to
remedy the unconstitutionality of state action—there
is yet another major policy consideration favoring
discovery. This second public policy, described by
Chief Judge Reynolds of the Eastern Distriet of Wis-
consin,
“is that reflected in §1983 itself. ‘Its purpose is
plain from the title of the legislation, “An Act to
enforce the Provisions of the Fourteenth Amend-
-ment to the Constitution of the United States, and
for other Purposes.” 17 Stat. 13.’ But it is the
manner of enforeement which gives §1983 its
unique importance, for enforcement is placed in
the hands of the people. Each citizen ‘acts as a
private attermey general who “takes on the
mantel of the sovereign,”’ guarding for all of
us the mdividual liberties enunciated in the
Constitution. Section 1983 represents a balancing
feature in our governmental structure whereby
individual citizens are encouraged to police those
who are charged with policing us all. Thus, it is
of special import that suits brought under this
statute be resolved by a determination of the
86
truth rather than by a determination that the
truth shall remain hidden.” Wood v. Breier, 54
F.R.D. 7, 10-11 (E.D. Wise. 1972).
Especially is this so where, as here, it is the defend-
ants themselves—whose allegedly unconstitutional
practices are sought to be enjoined—who attempt to
resist discovery and thereby to insure that “the truth
shall remain hidden.”
Finally, plaintiffs wish to point out that in most
cases—especially where a Rule 24 request for produc-
tion is concerned—the answering party does not op-
pose discovery. According to Professor Wright, a com-
petent empirical study found that
“most inspections already occur by notice, regard-
less of the language of Rule 34. Most lawyers
cooperate with their adversaries, avoid the time-
consuming preparation of papers and visits to
court, and inspect and submit to inspections by
informal agreement.” 8 Wright & Miller, supra,
at 613.4
As the Advisory Committee pointed out in its note
of 1970 to Amended Rule 34, the revision of Rule 34
“to have it operate extrajudicially, rather than
by court order, is to a large extent a reflection
of existing law office practice. The Columbia Sur-
vey shows that of the litigants seeking inspection
of documents or things, only about 25 percent
filed motions for court orders. This minor frac-
tion nevertheless accounted for a significant num-
ber of motions. About half of these motions were
*The study referred to is Glasser, Pretrial Discovery and the
Adversary System (1968).
87
uncontested and in almost all instances the party
seeking production ultimately prevailed.”
Such cooperation by an answering party thus permits
most of these matters to be resolved without the delay
and the use of judicial time inherent in any Rule 37
motion to compel.
With these general principles in mind, we turn now
to an analysis of (1) the form of defendants’ answers
to plaintiffs’ interrogatories and request for produc-
tion (Section II, infra) and (2) the claims of rele-
vancy, undue burden, specificity and privilege which
these answers invoke (Sections III through VI,
infra). Finally, we shall consider the propriety of
awarding to plaintiffs the expenses of obtaining an
order to compel (Section VII).
II
DEFENDANTS’ ANSWERS ARE INCOMPLETE, EVASIVE,
VacueE, aNnp Do Nor Contain a SHOWING THAT
THE OBJECTIONS RaiseED ARE VALID
In line with the basic purposes of broad discovery,
the rules contemplate that a request for discovery
“should be answered directly and without evasion in
accordance with the information that the answering
party possesses after due inquiry.” 8 Wright & Miller,
supra, at 559 (emphasis added). Rule 33 requires that
“each interrogatory shall be answered separately and
fully in writing under oath,” and Rule 34 provides
that a response shall be directed to “each item or cate-
gory.” And Rule 37 provides that for purposes of a
motion to compel discovery “an evasive or incomplete
88
answer is to be treated as a failure to answer.” Rule
37(a) (3).
Nor is it sufficient for an answering party to say
that the information is not within his personal knowl-
edge or that he is net “the best source of information
requested.’ With respect to interrogatories,
“la] party is charged with knowledge of what his
agents know, or what is in records available to
him, or even, for purposes of Rule 33, informa-
tion others have given him on which he intends
to rely in his suit. A party must disclose facts in
his attorney’s possession even though the facts
have not been transmitted to the party.” 8 Wright
& Miller, supra, at 561-62.
Rule 34 imposes the same requirements on an answer-
ing party, even to the extent of requiring him to make
data compilations of computerized information. See
8 Wright & Miller, supra, at 647-48 and 657 et seq.
If, however, a requested document does not exist or is
not within the custody, control or possession of the
answering party, he is obligated to so state. 4A
Moore’s Federal Practice, supra, at 134.07; 8 Wright
& Miller, supra, at 626, 641. And if a party objects to
answering an interrogatory on the basis of relevance,
privilege, or some other statutory ground, his objec-
tions “must be specific and supported by a detailed
explanation of why an interrogatory or class of inter-
rogatories is objectionable.” 8 Wright & Miller, supra,
at 542.
Finally, it is well settled that “[t]he burden is on
the objecting party to show why an interrogatory is
5See, e.g., defendants’ answer to Interrogatory No. 2.
89
improper.” 8 Wright & Miller, supra, at 542-43 (em-
phasis added). See also Rogers v. Tri-State Materials
Corporation, 51 F.R.D. 234, 247 (N.D. W.Va. 1970) ;
Advisory Committee’s Note to 1970 Amendment to Rule
33(a), 48 F.R.D. 523. This showing, moreover, “must
be based upon appropriate testimony and other fac-
tual data, not the unsupported contentions and con-
clusions of counsel.” Apco Oil Corp. v. Certified
Transp., Inc., 46 F.R.D. 428, 423 (W.D. Mo. 1969).
Thus courts “have insisted on a particular and spe-
cific demonstration of facts, as distinguished from
stereotyped and conclusory statements.” 8 Wright &
Miller, supra, at 265. This burden has been recognized
regardless of the nature of the objection.®
Turning now to defendants’ answers, plaintiffs in-
vite the Court’s attention to four types of responses
which are clearly inadequate. First, there is a type of
evasive answer, often used by defendants, which sim-
ply does not disclose, in a forthright manner, whether
a document exists and/or whether it will be produced.
For example, defendants are fond of qualifying their
responses by limiting production “to the extent that”
a request may seek confidential matter (Request No.
6E.g., with respect to a claim of privileges see Wright & Miller,
pny 2 126; Pleasant Hill Bank v. United States, 58 F.R.D. 97,
101 (W.D. Mo. 1973); Honeywell Inc. v. Piper Aircraft Corpora-
tion, 50 F.R.D. 117, 120 (M.D. Pa. 1970); with respect to undue
burden, see 4A Moore’s Federal Practice, supra, 33.20 and cases
cited at 33-106, n.13: 8 Wright & Miller, supra, at 556; Breeland
v. Bethlehem Steel Co., 179 F.Supp. 464, 467 (S.D.N.Y. 1959)
(“the mere statement of lack of knowledge by plaintiffs of the facts
sought by defendants’ interrogatories, without any mention of what
effort, if any, has been made to obtain the knowledge is certainly
insufficient.”) .
2) or “to the extent that defendants can identify ma- -
terials sought by this request that exists” (Request
No. 10; see also Requests No. 11, 12 and 17). Such
evasions, however, do not conform to Rule 34: if such
a document exists, defendants should either (i) pro-
duce it or else (ii) identify it and invoke a specific
objection sanctioned by the Federal Rules of Civil
Procedure; if it does not exist, defendants should so
state.
Second, defendants have on several instances re-
fused to answer for reasons which simply are not
authorized by the Federal Rules of Civil Procedure.
For example, defendants have stated that they “should
not be put in a position having to determine which
documents this request pertains” (Response No. 13;
see also Response No. 14). But that is exactly the
obligation which Rule 34 imposes upon every answer-
ing party—to identify and produce (or interpose an
objection with respect to) each document to which
each request pertains. Since this proposition is so
obvious under the authorities cited in this section
(and also Section V) of the memorandum, plaintiffs
are at a loss to understand why defendants have
adopted such a stance in resisting this discovery. Simi-
larly, defendants have refused to answer interroga-
tories on grounds such as “an unnecessary invasion
of privacy” (Interrogatories No. 1 and 2), or “that
I am not the best source of information requested”
(Interrogatory No. 2), or that an interrogatory is
“harassing” (Interrogatory No. 1). But none of these
grounds is a valid reason for objecting under the
Rules.
91
Third, there are many answers to interrogatories
which can only be termed unresponsive, inasmuch as
they purport to— but in fact do not — answer the
question asked. For example, in Brown Interrogatory
No. 14, defendant Brown was asked how certain
named plaintiffs were notified that particular hear-
ings were to be held by the Adult Authority; Brown’s
answer, however, simply stated what “the practice is”,
not what in fact occurred. Similarly, defendant Brown
was asked in Interrogatory No. 17 whether (and if
so when) certain Board decisions were conveyed to
certain named plaintiffs; yet his answer was couched
entirely in terms of what “typically” happens to in-
mates in such situations. Such completely unrespon-
sive answers are frequently utilized by defendants in
answering the interreratories.’
Fourth, defendants’ objections are often grossly de-
fective inasmuch as they have rarely even attempted
to carry their burden of showing that any given ob-
jection is a valid one. Generally, this failure is most
clearly seen in defendants’ claims of privilege or un-
due burden. For example, if the terms “harassing”
or “oppressive” (Interrogatories No. 1, 2, 3, 4) are
to mean anything relevant to the discovery rules, they
must mean that answering the interrogatory in ques-
tion would impose an undue burden upon plaintiffs
within the meaning of Rule 26; yet there is no at-
tempt whatsoever to show that this is so. And with
respect to claims of privilege based upon Section 1040
of the California Evidence Code, there is no attempt
7See, e.g., the answers submitted to Hoover Interrogatories No.
14, 18, 19, 20, 27, 31 and 38.
whatever to show that any given document was “ac-
quired in confidence by a public official in the course
of his duty”, or that “disclosure of the information
is against the public interest because there is a ne-
cessity for preserving the confidentiality of the infor-
mation that outweighs the necessity for disclosure in
the interest of justice.” See California Evidence Code
§1040. Instead, there is simply a bald claim by the
Attorney General to the effect that “the Adult Au-
thority asserts the privilege against disclosure con-
ferred by California Evidence Code Section 1040(b)
(1) (Response No. 14). Indeed, there are even some
instances when defendants’ purported assertion of a
privilege is fudged by objecting “[t]o the extent this
request may seek material privileged by California
Government Code 6254(a)” (Response No. 2) (em-
phasis supplied).
Thus entirely apart from the correctness vel non
of these claims of privilege or undue burden, defen-
dants have simply ignored their obligation to base
their objections “upon appropriate testimony and
other factual data, not the unsupported contentions
and conclusions of counsel.” Indeed, it is difficult to
imagine how objections could be framed in a more
conclusory fashion.
III
Most or DEFENDANTS’ OBJECTIONS TO RELEVANCY
Are PATENTLY WitHovut MeErIr
Of all the objections filed by defendants, perhaps
the most spurious are those going to relevancy. In
their complaint, plaintiffs have made extensive and
process by which paroles are granted, rescinded and
revoked in the State of California. Specifically, plain-
tiffs have alleged, inter alia, that Adult Authority
members have no expertise in reaching fair decisions,
but are instead quite unsuited to the task; that in-
mates are unable effectively to present their views;
that panel members do not have sufficient time during
the hearings to arrive at an informed decision; that
decisions are based upon files and other written rec-
ords which are often false or misleading; that defen-
dant Authority members apply conflicting standards;
that parole decisions reached are arbitrary and dis-
criminatory, and are based upon criteria which are
not related to success on parole; and that the result
of this procedure is to “imprison literally thousands
of inmates who should not be imprisoned by any
rational criteria, thereby inflicting massive and need-
less human suffering.” It is plaintiffs’ position that
in combination these defective procedures constitute
a system which is so lacking in evidentiary integrity
—and is so full of injustice and the potential for in-
justice—-as to violate the Due Process Clause of the
Fourteenth Amendment.
In denying defendants’ motion to dismiss, this Court
has held that these allegations, if true, entitle plain-
tiffs to relief. Accordingly, plaintiffs are obliged to
present evidence concerning all of these various com-
ponents of the parole system in order to sustain their
burden of proof at trial; and defendants’ objections
to relevance must therefore be received in the context
of those wide-ranging factual allegations. Although
defendants’ relevancy objections are dealt with indi-
vidually in the Appendix hereto, it may be helpful
to the discussion which follows to briefly mention a
few such objections which are clearly without merit.
Plaintiffs’ Request No. 6 seeks production of a
memorandum written by a high ranking Department
of Corrections official, which refers to Adult Author-
ity hearings and which says, in pertinent part:
“Some inmates become tongue-tied or emotionally
involved, and during the course of the interview,
forget what they really desire to discuss with the
Board.” See Affidavit of B. E. Bergesen, ITI, an-
nexed to the instant motion to compel.
It is difficult to imagine a more relevant document
with respect to (1) the allegations in plaintiffs’ com-
plaint that in appearing before the Authority, “many
inmates are so fearful, tongue-tied or lacking in the
ability to organize and articulate their position that
they are unable to make an effective presez.ation of
their case, or even on occasion to respond accurately
to questions posed by the panel”, and (2) the sort of
due process safeguards which may be required under
the Fourteenth Amendment. In addition, it would also
appear to be quite relevant for impeachment purposes,
since defendant Kerr has testified on deposition—and
presumably will so testify at trial—that inmates do
not have a hard time articulating their thoughts, or
become tongue-tied at these hearings.* See United
8*Q. Isn’t it true, Mr. Kerr, that a large number or large per-
centage of inmates are very scared and nervous at these hearings?
95
States v. Meyer, 398 F.2d 398 F.2d 66, 72 (9th Cir.
1968) (“discovery is particularly important to prepara-
tion for effective cross-examination of * * * [adverse]
witnesses, and is commonly employed for that pur-
pose”). Yet defendants could still “object to the pro-
duction of this inter-agency memorandum and ques-
tions (sic) its relevancy to the subject matter of the
instant litigation” (Response No. 6).
Plaintiffs’ Requests No. 17 and 18 seek production
of all studies of the Adult Authority and all written
proposals for change in the Authority, respectively.
Obviously, such documents may well be admissible as
evidence or, at the very least, are reasonably calcu-
lated to lead to admissible evidence on all sorts of
topics involving the operation of, and procedures
followed by, the Adult Authority. Yet defendants
claim that each request “seeks material irrelevant to
the subject matter of the instant litigation” (Re-
sponses No. 17 and 18).
A. I would assume that most of them are under some tension.
Q. Yes. But beyond that, isn’t there a large percentage of ther
that really have a difficult time organizing and articulating their
thoughts at the time?
A. No, I wouldn’t say so.
Q. Let me ask you this, Mr. Kerr. Do you think this is a fair
statement: Some inmates become tongue-tied or emotionally in-
volved and during the course of the interview forget what they
really desire to discuss with the Board? z
A. I would have no way of knowing.
Q.. From five years on conducting interviews you have no feel
of whether that statement is probably true or not?
A. It is such a genera] statement that I would have no way of
Q. Has it been your experience that some inmates become
tongue-tied at these hearings?
A. No.
Q. None?
A. I don’t recall a single one that was so tongue-tied he couldn’t
express himself.”
96
Plaintiffs’ Interrogatory No. 1 seeks basic informa-
tion concerning the qualifications and background of
the Adult Authority members. In their complaint,
plaintiffs allege that said members are quite unsuited
to their task, as a result of:
“(j) The narrow, partisan background which
virtually every one of them possesses, due to
having been for many years a law enforcement
officer, and by punitive, anti-prison biases which
they possess; and
(ii) Their experience as Adult Authority mem-
bers, representatives or Administrative Officer,
which has led them to adopt rigid and stereo-
typed thinking patterns, pursuant to which they
look more for the quality of servility than for
those qualities which would, in fact, portend suc-
cess on parole.” Complaint, paragraph 16a.
Since this allegation, if true, would afford substantial
support to plaintiffs’ claim that the Adult Authority’s
hearing procedures are unconstitutional, it ean hardly
be considered irrelevant within the meaning of Rule
26. Yet that is the position taken by all of the defen-
dants in this case (See answers to Interrogatory No.
1).
Although court decisions on relevancy are by na-
ture “extremely particularistic”, 8 Wright & Miller,
supra, at 52, the following principles can easily be
distilled.
1. “Certainly the requirement of relevancy should
be construed liberally and with common sense, rather
than in terms of narrow legalisms. No one could sug-
97
gest that discovery should be allowed of information
that has no conceivable bearing on the case. But it is
not too strong to say that a request for discovery
should be considered relevant if there is any possi-
bility that the information sought may be relevant to
the subject matter of the action.” 8 Wright & Miller,
supra, at 45-47, and cases cited; accord: 4 Moore’s
Federal Practice, supra, 126.56[1] at 26-177.
2. Under the Federal Rules, it is no ground for
objection that information sought in pretrial discov-
ery would not be available at trial, ‘if the informa-
tion sought appears reasonably calculated to lead to
the discovery of available evidence.” Rule 26(b) (1) ;
Olympic Refininy Company v. Carter, 332 F.2d 260,
266 (9th Cir. 1964). Thus it is well settled “‘that the
question of relevancy is to be more loosely construed
at the discovery stage than at the trial.” 8 Wright &
Miller, supra, at 41.
3. In addition to discovering information pertain-
ing to a party’s case in chief, it is entirely proper to
obtain information for a host of other purposes such
as cross-examination of adverse witnesses, United
States v. Meyer, 398 F.2d 66, 72 (9th Cir. 1968); de-
termining the issues, 8 Wright & Miller, supra, at
41-42; and obtaining information concerning an oppo-
nent’s case, id. at 94-95.
4. “If protection is needed, it can better be pro-
vided by the discretionary powers of the court under
Rule 26(c) than by a constricting concept of rele-
vance.” 8 Wright & Miller, supra, at 47, and cases
cited at n.24.
98
Plaintiffs submit that when defendants’ objections
to relevancy, as discussed in the Appendix hereto, are
read in the light of these general principles, there can
be no doubt that most of them are entirely without
merit. For ‘‘the spirit of the new rules calls for every
relevant fact, however remote, to be brought out for
the inspection not only of the opposing party but for
the benefit of the court which in due course can elimi-
nate those facts which are not to be considered in
determining the ultimate issues.” Hercules Powder
Co. v. Rohm & Haes Co., 3 F.R.D. 302, 304 (D. Del.
1943). Therefore it would be appropriate to strike
most of defendants’ relevancy objections and to re-
quire them to respond, forthwith, to plaintiffs’ re-
quests and interrogatories.
IV
ANSWERING THE INTERROGATORIES PROPOUNDED WOULD
Not Sussect DEFENDANTS Tio UNDUE
BURDEN OR EXPENSE
Rule 26(¢) enables the court, “[u]pon motion by a
party or by the person from whom discovery is sought,
and for good cause shown,” to enter a protective
order to spare a party “undue burden of expense.”
As noted earlier, defendants appear to be resisting In-
terrogatories No. 1 through 4 partially on the ground
of undue burden, although the terms used are “harass-
ment” and “oppression”, Yet as we have noted earlier,
“fa] general objection that interrogatories are
onerous and burdensome and require of the party
to make research and compile data raises no is-
sue. The objection must make a specifie showing
99
of reasons why the interrogatory should not be
answered.” 4A Moore-s Federal Practice, 133.20
at 33-106, 33-107.
Such a showing, necessary to meet the “good cause”
requirement of Rule 26, is conspicuously absent from
all of defendants’ objections.
Equally significant is the fact that defendants seem
to be laboring under a misconception as to the applica-
ble standard of burden of expense.
“The mere fact that compliance with an inspec-
tion order will cause great labor and expense or
even considerable hardship and possibility of in-
jury to the business of the party from whom dis-
covery is sought does not of itself require denial
of the motion. Rule 26(¢) speaks of ‘undue bur-
den or expense’ and discovery should be allowed
unless the hardship is unreasonable in the light
of the benefits to be secured from the discovery.”
8 Wright & Miller, supra, at 647-48. See also 4A
Moore’s Federal Practice, supra, 133.20.
This is the approach which has been followed by the
courts, which have often held that although a request
encompasses a potentially large number of documents,
“it is well settled that a showing of good cause® is not
rebutted by a showing that production would be bur-
densome. Camco Incorporated v. Baker Oils, Inc., 45
F.R.D. 384, 386 (S.D. Tex. 1968). “Every lawsuit is
burdensome and expensive to the party litigants, but
where it is found necessary to bring about a fair,
*Prior to the 1970 Amendment to Rule 34, a party proceeding
thereunder for the production of documents was required to make
a showing of “good cause”.
100
impartial and thorough administration of justice, all
sources of information must be made available, regard-
less of expense of inconvenience resulting therefrom.”
Michel v. Meier, 8 F.R.D. 464, 477 (W.D. Pa. 1948).
These quotations are merely illustrative of the many,
many cases which say essentially the same thing.’
Thus a protective order is not authorized by the mere
existence of burden or expense, as defendants seem to
believe, but only the existence of “undue” burden or
expense.
Beyond the general language quoted above, requests
for discovery under Rules 33 and 34 have on countless
occasions heen upheld against claims of burden and
expense which were far more extreme than those
raised by these defendants. Thus in Keco Industries,
Inc. v, Steurns Electric Corporation, 285 F.Supp. 912
(E.D. Wise, 1968), the answering party alleged that
the discovery sought would involve the location and
assembly of some 100,000 files. In Alexander v. Rizzo,
50 F.R.D. 374 (E.D. Pa. 1970), the answering party
alleged that the time to complete the discovery in-
volved “would require hundreds of employees of the
Police Department many years of man hours to un-
10E.g., United States v. American Optical Company, 39 F.R.D.
580, 587 (N.D. Cal. 1966) (“the fact that the production of docu-
ments may involve inconvenience and expense is not alone a suffi-
cient reason for refusing discovery which is otherwise appropri-
ate”) ; Rockaway Pix Theatre Inc. v. Metro-Goldwyn-Mayer, Inc.,
36 F.R.D. 15, 17 (E.D.N.Y. 1964) (“All sources of information
should be made available, regardless of expense (citation omitted),
and the mere fact that production would be onerous or inconvenient
is not, per se, ground for denial of a Rule 34 motion”) ; Rogers v.
Tri-State Materials Corporation, 51 F.R.D. 234, 245 (N.D. W.Va.
1970) (“Interrogatories, otherwise relevant, are not objectionable
and oppressive simply on grounds that they may cause the answer-
ing party work, research and expense”’).
101
earth the answers to the interrogatories and other
discovery procedures pursued by counsel.” Id. at 376.
Similarly, the discovery requested in United States
v. American Optical Company, 39 F.R.D. 580 (N.D.
Cal. 1966) required “the examination of large quanti-
ties of documents, requiring a great deal of time and
expense.” Id, at 586-87. Yet in each case—as in many
others''—the court required that discovery be made.
There are, of course, cases which limit or deny dis-
covery based upon undue burden or expense; yet the
correct resolution of the problem does not give con-
clusive effect to a showing that discovery would be
burdensome or expensive. Rather, discovery
“must be kept within bounds by weighing the bur-
dens of production against the importance of the
information sought. In the final analysis, this is
what the numerous cited decisions really hold.”
Umted States v. R. J. Reynolds Tobacco Co., 268
F.Supp. 769, 774 (D.N.J. 1966).
Or, in Professor Moore’s words, the courts are re-
quired to weigh “the annoyance and expense involved
against the value of the information sought; while the
allowance of interrogatories is in the sound discretion
of the court, the usual presumption is in favor of
liberal discovery of relevant matters.” 4A Moore’s
Federal Practice, supra, 133.20.
11See, e.g., Camco Incorporated v. Baker Oil Tools, Inc., 45
F.R.D. 384 (S.D. Tex. 1968); Rockaway Piz Theatres, Inc. v.
Metro-Goldwyn-Mayer, Inc., 36 F.R.D. 15 (W.DN.Y. 1964) ;
Michel v. Meier, 8 F.R.D. 464 (W.D. Pa. 1948) ; see generally, 8
Wright & Miller, supra, §2174 (interrogatories) ; §2214 (produc-
tion of documents).
102
With these principles in mind, we examine a few
objections interposed by defendants on the ground of
undue burden. For example, it appears obvious that
defendants could easily answer Interrogatories No. 1
through 4 simply by referring to their own records
and by submitting a questionnaire to the hearing rep-
resentatives. Defendants’ misunderstanding of the “un-
due burden” showing may also be seen in defendant
Procunier’s answer to Interrogatory No. 10, in which
he characterizes the interrogatory as
“vague, oppressive and harassing in that it would
require me to examine the available records of
the designated plaintiffs with a view to determin-
ing which reports or evaluations should be char-
acterized as ‘recommendations’ within the meaning
of the interrogatory, and if so, whether they
should be deemed related to the designated ac-
tions” (emphasis added).
A similarly revealing example of defendants’ erro-
neous view of what constitutes an “undue burden”
has been submitted by defendant Charles Brown in
response to Interrogatory No. 39."* But the limited
amount of effort which these defendants would have
to expend—even accepting the situation as charac-
terized by them in their answers—is clearly not the
“undue” burden of Rule 26. Therefore it may well
12°Qn the advice of counsel I decline to answer Interrogatory
No. 39 on the grounds that the question is unduly vague and op-
pressive. Each of the designated inmates has a voluminous file
containing a great deal of information. To answer the question as
it reads would require an examination of the entire file, a frequent
exercise of speculative judgment as to what is fairly intended by
the term ‘adverse comments’, and an oppressively significant
amount of time in identifying those comments and their sources.”
103
be that defendants have attempted no showing of un-
due burden—as required by law—because none was
possible which would conform to the principles of law
summarized above.
Vv
PLAINTIFFS Have DesiGNaTeD THE
DocuMENTs REQUESTED WITH
SUFFICIENT SPECIFICITY
Defendants have objected to several of plaintiffs’
Rule 34 requests as being either “vague” or insuffi-
ciently specific.’* Yet once again defendants’ objec-
tions do not conform to the law which has been de-
veloped by the federal courts. See generally, 8 Wright
& Miller, supra, at §2211; 4A Moore’s Federal Prac-
tice, supra, 134.07.
Prior to 1970, there was an apparent conflict be-
tween the standards used by those courts which took,
respectively, “a narrow view and a broad view about
the specificity of a designation.” 8 Wright & Miller,
supra, at 638. The 1970 Amendment to Rule 34, how-
ever, expressly permits a designation “either by indi-
vidual term or by category.” Rule 34(b) (emphasis
supplied). This revision, in Professor Wright’s view,
constitutes a substantial improvement, limiting as it
does “a useful line of defense for a party whose real
objection to discovery was not that he did not know
what documents were wanted but that he knew all
too well what was wanted and did not want to pro-
duce it.” Id. at 633.
8See Responses No. 3, 10, 12, 13, 14, 17, 18 and 20,
104
Thus it is now common for a discovering party to
ask for “all documents which pertain to” a particular
transaction or subject matter, and to have the answer-
ing party identify and produce those documents. See,
e.g., Keco Industries, Inc. v. Stearns Electric Corp.,
285 F.Supp. 912 (E.D. Wise. 1968); Speedrack, Inc.
v. Baybarz, 45 F.R.D. 254 (E.D. Cal. 1968) ; Pleasant
Hill Bank v. United States, 58 F.R.D. 97 (W.D. Mo.
1973). When such categories are used, it is clearly
not feasible for a discovering party to make a defini-
tive showing that a particular document is in the
possession of the answering party. 4A Moore’s Federal
Practice, supra, 134.08, “The goal is that the descrip-
tion be sufficient to apprise a man of ordinary intel-
ligence what documents are required and that the
court be able to ascertain whether the required docu-
ments have been produced.” 8 Wright & Miller, supra,
at 631.
Putting entirely to one side defendants’ curious
view that they should not be required “to determine
which documents this request pertains” (Responses
This text is long and has been trimmed here. Open the source document for the complete record.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.