Jurisdictional Statement — Keyhea v. Enomoto

In the Supreme Court

OF THE

United States

OctoBer Term, 1979

..79-159%

Cana. KeyHEa,

Appellant,

vs.

J. J. Enomoto, Director of the Department of Corrections

for the State of California, et al.,

Appellees.

On Appeal From the Court of Appeal

for the State of California, First Appellate District

JURISDICTIONAL STATEMENT

Peter E. SHEEHAN

Steran M. RosenzwEic -

CLIFFORD SWEET

LEGAL AID SOCIETY

OF ALAMEDA COUNTY

2357 San Pablo Avenue

Oakland, California 94612

Telephone: (415) 465-4376

Attorneys for Appellant

BOWNE-PERNAU WALSH * 1045 SANSOME ST. © S.F., CA 94111 © (415) 981-7882

Questions presented ........... daca tg Sa (cal d

C. Stage at which the federal questions were raised .......

The questions are substantial .........................2...

1. Application of the Sibron-Carafas principle demonstrates

the action is not moot .................. et, Lape aiaed

2. The decision in Vitek v. Jones mandates summary reversal

3. This court should note probable jurisdiction to determine

the validity, under the equal protection clause, of statutes

which permit the placement of prisoners in mental institu-

tions pursuant to procedures and standards vastly differ-

ent from those lied in the placement of other

classes of indivi

O.m4e © ee 0.6 6018 0 0 226 65 26 00 & O08 6 8 2 Oe ©

12

TABLE OF AUTHORITIES CITED

Cases Page

Allied Stores of Ohio v. Bowers, 358 U.S. 522 (1959) ......... 3,9

Benfield v. Bounds, 540 F.2d 670 (4th Cir. 1976) vacated on

merits sub nom Jones v. Carroll, 429 U.S. 1033 (1977) . 10

Black v. Warden of United States Penitentiary, 467 F 2d | 202

(Ws Ce Us ss cg cee oa cel 10

Carafas v. LaVallee, 39] U.S. 234 (1968) ................... 9,11

Chapman v. Pickett, 586 F.2d 22 (7th Cir. 1979) ............ 10

Chesney v. Adams, 377 F.Supp. 887 (D. Conn. 1974) aff'd with-

out opinion, 508 F.2d 836 (3d de SS Ciena eee rena 14

Conservatorship of Buchanan, 78 Cal.App.3d 281 (1978) ..... 12

E.J. v. State, 471 P.2d 367 (Alaska Supreme Court, 1970) ..... 10

Esteban v. Central Missouri State College, 415 F.2d 1077 (8th

Che. SID sin oii Gee EEA io ee 10, 11

Ginsberg v. New York, 390 U.S. 629 (1968) ................. 1l

Hahn v. Burke, 430 F.2d 100 (7th Cir. 1970) ................ 10

Harmon v. McNutt, 587 P.2d 537 (Wash. Supreme Court,

obese at shee pe np PES ee pat, ar! 13, 14

Hatter v. Los Angeles City “a School District, 452 F.2d 673

PU Ge NE cs reece a eee sina y ca ee Fa ee 10, 11

In re Ballay, 482 F.2d 648 (D.C. Cir. 1973) ................. 12

In re Moye, 32 Cal. 3d 497 (1078) ..<. 2. 2. ck cece. 14

Justin v. Jacobs, 449 F.2d 1017 (D.C. Cir. 1971) ............. 10

Lawrence v. State Tax Commission, 286 U.S, 276 (1932) .... 3,9

Liner v. Jafco, Inc., 375 U.S. 301 (1964) ...............6.... 9

Matter of Stephenson, 344 N.E.2d 679 (Ill. App.Ct. 1976) . 10

Matthews v. Hardy, 420 F.2d 607 (D.C. Cir. ~— cert.

denied, 397 U.S. 1610 URS eee RRS er cet Seen Manan 14

McAliley v. Birdsong, 451 F.2d 1244 i On Ce. 71) .........

Sibron v. New York, 392 U.S. 40 (1968) ................... 2,9, 11

Sites v. McKenzie, 423 F.Supp. 1190 (N.D. W.Va. 1976) ...... 14

Souder v. McGuire, 516 F.2d 820 (3d Cir. 1975) . eee:

State v. Van Tassel, 484 P.2d 1117 (Oregon Ct. of | ie

BOD inks Seaendic ko ko oe HIS RWNEE LAA SURO TET ek eek ee TeS 10

lii

TABLE OF AUTHORITIES CrreD

CasEs Page

Street v. New York, 304 U.S. 576 (1969) ...... SCH Dee 11,12

United States ex rel Schuster v. Herold, 410 F.2d 1071 (24d C

1969) cert. denied, 396 U.S. 847 (1969) ............ cas

United States ex rel Souder v. Watson, 413 F.Supp. 711 (M.D.

NN I see eas es ee eee te SL ¥ oro aK ee 14

Vitek v. Jones, ... U.S. ..., 48 L.W. 4317 (March 25, 1980) . .2, 12

West v. Cunningham, 456 F.2d 1264 (4th Cir. 1972) ......... 10

Wilson v. Webster, 467 F.2d 1282 (9th Cir. 1972) ............ 11

Winnick v. Manning, 460 F.2d 545 (2d Cir. 1972) ............ 10

Statutes

California Penal Code

Section 2684 ........ SoC eediwat hoewe 3, 4, 5, 6, 8, 12, 13, 14

I er blue he: See 3, 4, 5, 6, 8, 13, 14

I cree ao sat cas Cee eek oat eda 4,13

California Welfare and Institutions Code:

IN RS ak Getui des cu Kass ccaisccuwer 13, 14

Nr lie re a 4,14

26 U.S.C. section 1957(2) .................. Sah ames wes cee 3

Tie Sr I ce a Sh ee ree 125,7

Constitution

United States Constitution, Fourteenth Amendment ......... 4,5,8

Texts

Report to the President from the President’s Commission on

PEE PORNO EE oe IS OR ERR SS 14

arene trey»

In the Supreme Court

OF THE

United States

Octroser Term, 1979

CanaL KeyuHega,

Appellant,

vs.

J. J. Enomoto, Director of the Department of Corrections

for the State of California, et al.,

Appellees.

On Appeal From the Court of Appeal

for the State of California, First Appellate District

JURISDICTIONAL STATEMENT

Canal Keyhea, appellant, appeals from the judgment of

the Court of Appeal of California, First Appellate District,

affirming the dismissal of appellant’s complaint brought

pursuant to 42 U.S.C. § 1983. The complaint challenged the

constitutional validity of California statutes authorizing the

involuntary transfer of state prisoners to state mental insti-

2

tutions and named appellee Enomoto as a defendant.’

Appellant submits this jurisdictional statement to demon-

strate that the court has jurisdiction of this appeal, that

substantial questions are presented, and that summary

reversal is appropriate under Vitek v. Jones, ........ US.

ditties , 48 L.W. 4317 (March 25, 1980) and Sibron v. New

York, 392 U.S. 40 (1968).

OPINIONS BELOW

All the opinions below are unreported. The opinion of

the Court of Appeal is reproduced as Appendix A and the

order of that court correcting factual errors in its opinion

and denying a rehearing is reproduced as Appendix B.

The order of the California Supreme Court denying appel-

lant’s petition for a hearing is reproduced as Appendix D.

The order of the Solano County Superior Court sustaining

appellees’ demurrer to appellant’s complaint and that

court’s subsequent judgment is reproduced as Appendix C.

JURISDICTION

This is an action brought under 42 U.S.C. § 1983 in a Cali-

fornia state court. The judgment of the California Court of

Appeal, First Appellate District, was entered on March 4,

1980, affirming the trial court’s judgment of dismissal on

November 27, 1978, of appellant’s complaint. The Court of

Appeal modified its opinion and denied appellant’s timely

petition for rehearing on January 18, 1980. On February

1In addition to appellee Enomoto, the appellees herein are Jerome

Lackner, Director of California Department of Health, Howard

Way, Chairman of the California Community Release Board, and

T. L. Clannon, Superintendent of the California Medical Facility.

3

27, 1980, the Supreme Court of California denied appel-

lant’s petition for hearing. The jurisdiction of the Court

to review the judgment by appeal is conferred by 28 U.S.C.

§ 1257(2), and the following cases sustain that jurisdiction :

Lawrence v. State Tax Commission, 286 U.S. 276, 281-283

(1932) ; Allied Stores of Ohio v. Bowers, 358 U.S. 522, 525

(1959).

STATUTORY PROVISIONS INVOLVED

The action challenges California Penal Code §4 2684 and

2685, which are set forth below:

If, in the opinion of the Director of Corrections, the

rehabilitation of any mentally ill, mentally deficient,

or insane person confined in a state prison may be

expedited by treatment at any one of the state hos-

pitals under the jurisdiction of the State Department

of Mental Health or the State Department of Develop-

mental Services, the Director of Corrections, with the

approval of the Board of Prison Terms for persons

sentenced pursuant to subdivision (b) of Section 1168,

shall certify that fact to the director of the appropriate

department who shall evaluate the prisoner to deter-

mine if he would benefit from care and treatment in a

state hospital. If the director of the appropriate

department so determines, the superintendent of the

hospital shall receive the prisoner and keep him until

in the opinion of the superintendent such person has

been treated to such an extent that he will not bene-

fit from further care and treatment in the state hos-

pital.

California Penal Code § 2684

Upon the receipt of a prisoner, as herein provided, the

superintendent of the state hospital shall notify the

Director of Corrections of that fact, giving his name,

4

the date, the prison from which he was received, and

from whose hands he was received. When in the opin-

ion of the superintendent the mentally ill, mentally

deficient or insane prisoner has been treated to such

an extent that such person will not benefit by further

care and treatment in the state hospital, the superin-

tendent shall immediately notify the Director of Cor-

rections of that fact. The Director of Corrections shall

immediately send for, take and receive the prisoner

back into prison. The time passed at the state hospital

shall count as part of the prisoner’s sentence.

California Penal Code § 2685

California Penal Code § 4011.6 and California Welfare and

Institutions Code § 5352.5 are involved in this case but due

to their length are reproduced as Appendix F’.

QUESTIONS PRESENTED

1. Whether a prisoner’s complaint challenging his

forced drugging and commitment to a mental institution

may be dismissed on the pleadings as moot due to the pris-

oner’s discharge when the complaint alleges that continuing

legal disabilities will be imposed as a result of the commit-

ment and forced drugging.

2. Whether California Penal Code $4 2684 and 2685,

which authorize the involuntary transfer of California state

prisoners from state prisons to mental institutions without

certain procedural protections, including an adversary

hearing and provision of counsel, violate the Due Process

Clause of the Fourteenth Amendment.

3. Whether California Penal Code §§ 2684 and 2685,

which authorize the summary placement of California state

5

prisoners in mental institutions pursuant to procedures and

standards significantly different from those applied in the

placement of all other classes of individuals, violate the

Equal Protection Clause of the Fourteenth Amendment.

STATEMENT OF THE CASE

This action, which was brought under 42 U.S.C. § 1983 in

a state court, challenges the validity of California Penal

Code §{¢ 2684 and 2685 which authorize the summary trans-

fer of state prisoners to mental institutions. The trial court

sustained appellees’ demurrer on the ground, among others,

that the complaint did not state sufficient facts to constitute

a cause of action under 42 U.S.C. § 1983 (App. C., p. 4). The

California Court of Appeal affirmed the trial court’s judg-

ment on the ground that appellant’s discharge from parole

had rendered the case moot (App. A, pp. 13-15).

A. Proceedings in the Trial Court

In July of 1977, appellant, a California state prisoner

who was then confined at Patton State Hospital (“Patton”),

filed a class action complaint under 42 U.S.C. § 1983 chal-

lenging the constitutional validity of California Penal Code

$$ 2684 and 2685. The complaint also challenged, on consti-

tutional and California statutory grounds, regulations of

the California Department of Corrections allowing the

forced medication of prisoners. Appellant does not seek

review of the merits of the forced medication claim by this

Court. In November of 1977, an amended complaint was

filed which added two California taxpayers as plaintiffs

but the taxpayers solely challenged the forced medication

regulations. The amended complaint alleged that appellant

6

had been incarcerated in a state prison operated by the

California Department of Corrections until February of

1977. At that time appellant was transferred pursuant to

California Penal Code 4 2684 to Patton, a state hospital

for mentally disordered individuals operated by the Calli-

fornia Department of Health. Pursuant to § 2684 appellant

and other California prisoners were not afforded written

notice, a hearing, the right to call and present evidence,

and other procedural protections prior to their transfer

(CT 48 :19-49 :2). It was further alleged that the records of

appellant’s transfer to a mental institution and his forced

drugging would have a continuing harmful effect on, inter

alia, appellant’s ability to obtain government and other

types of employment (see allegations quoted in margin

below).2 The amended complaint prayed for, inter ala,

injunctive relief restraining the enforcement of §§ 2684

and 2685, a declaratory judgment that §§ 2684 and 2685

and the forced medication regulations and appellees’ ac-

tions under those provisions were unconstitutional and

void, and an order requiring expunction of references to

appellant’s transfer and forced medication from his rec-

ords (CT 52:4-7; 52:9-12; 53:5-14; 209 :28-210:2).

Appellees filed a demurrer in January of 1978, an amend-

ment to the complaint was filed in March of that year, and

2It was alleged that the forced medication actions and references

in appellant’s records “will have an adverse effect on the ability of

[appellant] . . . to obtain employment with, among other agencies,

the Department” (CT 208:7-12) and that:

The summary transfers of [appellant] and his class—based

upon a finding that they are mentally ill, mentally deficient or

insane—are duly noted in their permanent records which form

the basis for future classification and le and certain employ-

ment decisions. The negative implications of the transfer

actions will have a continuing harmful effect upon their status

both in prison and on parole (CT 47:9-18; 209:7).

7

appellant was released on parole from Patton in May of

1978. In October of 1978 the trial court sustained the demur-

rer to appellant’s and the taxpayers’ complaint. The trial

court sustained the demurrer as to the claims raised by

appellant on the ground that the complaint did not state

sufficient facts to constitute a cause of action under 42

U.S.C. §1983 and, apparently as to appellant’s claims

based upon state law, that appellant had not exhausted

his administrative remedies (App. C, p. 4). A judgment

of dismissal was subsequently entered (App. C, pp. 1-2).

B. The Decision Below

In July of 1979, shortly before oral argument in the

Court of Appeal, appellant was returned to state prison

pursuant to a provision allowing the return of a parolee

for a 90-day psychiatric observation. In November of 1979

appellant was discharged from parole and in December

of 1979 the Court of Appeal rendered its decision. The

court stated the standard it was applying to measure the

pleadings was whether the “allegations state, or can be

amended to state, a cause of action” (App. A, p. 3, n.1). The

court first held that there was no necessity to exhaust

administrative remedies but noted that prior to its decision

appellant had been discharged from parole rendering the

matter moot (App. A, pp. 8-11, 13-15). It found the matter

moot because appellant was no longer subject to the

challenged provisions, the possibility of future commit-

ments of appellant was speculative, and due to the absence

of a justiciable controversy the court was “unable to ren-

3In their demurrer a did not that the failure

to exhaust pr ererid, pase nb aon pte Hooda claims under

42 U.S.C. § 1983 (CT 81-92; 98-104).

8

der an effective decree responsive to appellant’s complaint”

< App. A, pp. 14-15). Appellant had extensively argued that

his at'egations of continuing harm from the records of his

commitnicnt and forced medication rendered the matter not

moot (see § “*, infra). The Court of Appeal did not address

this point in i‘s opinion. A timely petition for rehearing

was denied by the Court of Appeal after which the Cali-

fornia Suprem Court denied a petition for hearing.

C. Stage at Which the Federal Questions Were Raised

In appellant’s complaint and memorandum filed in the

trial court appellant raised the claim that $4 2684 and 2685

violated the due process and equal protection provisions

of the Fourteenth Amendment to the United States Con-

stitution (CT 49 :16-50:2; 52:9-12; 159-177). The trial court

rejected these claims on the merits. The above claims were

reiterated by appellant in his briefs, as well as the amicus

brief of the State Public Defender, before the California

Court of Appeal and the California Supreme Court. See,

e.g., Appellant’s Opening Brief, 16-38. The Court of Appeal

stated it would not reach the above constitutional claims

because it found the case moot. (App. A, p. 13). The Cali-

fornia Supreme Court denied a hearing without an opinion

(App. D).

Similarly in his memorandum filed in the trial court and

briefs filed in the Court of Appeal and California Supreme

Court, appellant extensively argued that the continuing

injury from his records of commitment and forced medi-

eation rendered the action not moot under federal law.

See, e.g., CT 202-203; CT 223-225; Appellant’s Opening

Brief, 75; Closing Brief, 11-14; Petition for Rehearing,

9

4-7; Petition for Hearing, 7, 11-17. The trial court did not

reach the mootness issue. The Court of Appeal did not

address the contention that the action was not moot due

to the continuing injury to appellant.

THE QUESTIONS ARE SUBSTANTIAL

1. Application of the Sibron-Carafas‘ Principle Demon-

strates the Action Is Not Moot

Two points should be noted with respect to the state

court’s holding that this action was moot. First, that hold-

ing is not binding here because “the question of mootness

is itself a question of federal law upon which [this court]

must pronounce final judgment.” Liner v. Jafco, Inc., 375

U.S. 301, 304 (1964) (reversing state court holding of

mootness and reaching merits); Allied Stores of Ohio v.

Bowers, 358 U.S. 522, 525 (1959) (reversing state court

holding of lack of standing and reaching merits). See also

discussion in Lawrence v. State Tax Commission, 286 U.S.

276, 282 (1932).

Second, the holding was indisputably incorrect under fed-

eral law. The controlling principle is clear: “a criminal case

is moot only if it is shown that there is no possibility that

any collateral legal consequences will be imposed on the

basis of the challenged conviction.” Sibron v. New York,

392 U.S. 40, 57 (1968) (emphasis added); Carafas v. La-

Vallee, 391 U.S. 234, 236-238 (1968). While this court has

not specifically applied the Sibron-Carafas principle to civil

litigation, each of the eight circuits to consider the issue has

done so in cases involving the adverse effect from records

‘Sibron v. New York, 392 U.S. 40 (1968); Carafas v. LaVallee,

391 U.S. 234 (1968).

10

of prison transfers, prison disciplinary proceedings, student

suspensions, mental hospital commitments, and denial of

conscientious objector status.’ Indeed the Ninth Circuit has

consistently reversed district court dismissals based on

mootness in situations virtually identical to that at issue

'See, e.g., Justin v. Jacobs, 449 F.2d 1017, 1019-1020 (D.C. Cir.

1971) (challenge to civil commitment not mooted release) ;

Winnick v. Manning, 460 F.2d 545, 548 n.3 (2nd Cir. 1972) (chal-

lenge to student suspension not mooted by readmission); Benfield

v. Bounds, 540 F.2d 670, 672-673 (4th Cir. 1976) vacated on merits

sub nom Jones v. Carroll, 429 U.S. 1033 (1977) (challenge to

prison transfer not mooted by return of oe to original institu-

tion; West v. Cunningham, 456 F.2d 1264, 1265 (4th Cir. 1972)

(challenge to — confinement procedures not ropeye ms |

te confinement ) :

release ; McAliley v. mgr, ee F.2d 1

1245-1246 (6th Cir. 1971) (challenge to draft ’s denial of

conscientious objector status not mooted by undesirable ae

from Army because record of such a discharge “can oe

jeopardize an individual's ey for future ere as we

as his general sasabition”* ahn v. Burke, 430 F.2d 100, 102-103

(7th Cir. 1970) (challenge to probation revocation not mooted by

release of sean yea! Chapman v. Pickett, 586 F.2d 22, 26-27

(7th Cir. 1979); Esteban v. Central Missouri State College, 415

F.2d 1077, 1079 n.1 (8th Cir. 1969) (challenge to student suspension

not mooted when students no longer in school and expiration date

of suspension had passed); Hatter v. Los Angeles City High School

District, 452 F.2d 673, 674 (9th Cir. 1971) (challenge to student

suspensions not mooted by graduation of students); Black v.

Warden of United States Penitentiary, 467 F.2d 202, 204 (10th Cir.

1972) (challenge to segregated confinement not mooted by prison-

er’s transfer from federal to California prison). See also E.J. v.

State, 471 P.2d 367, 369-370 (Alaska Supreme Court 1970) (release

of juvenile does not render action moot because it is “possible that

. . . juvenile record could be made available to . . . prospective

employers.”); Matter of Stephenson, 344 N.E.2d 679, 680-681 (Ill.

App.Ct. 1976) (absolute discharge of person challenging civil com-

mitment does not render matter moot because he might be called

upon to disclose commitment on employment application or during

‘ob. interview); State v. Van Tassel, 484 P. 1117, 1119-1122

= Ct. of Appeals 1971) (similar analysis to Stephenson,

supra).

il

here.* And in an opinion by Justice Blackmun the Eighth

Circuit specifically applied Carafas and Sibron in hold-

ing a challenge to student suspensions was not mooted

when the students were no longer in school and the expira-

tion date of the suspension had passed. Esteban v. Central

Missowr: State College, 415 F.2d 1077, 1079, n.1 (8th Cir.

1969).

Sibron and Carafas should be controlling on the mootness

issue but this case is stronger in some respects. Under Car-

afas and Sibron the court assumes the existence of adverse

collateral consequences. This action arises after the sustain-

ing of a demurrer and the allegations of the complaint

establish the existence of adverse legal consequences. More-

over, these consequences are both tangible and remediable.

Thus, one ready example of the tangible injury caused by

appellant’s commitment is illustrated by a provision of the

Administrative Manual of the California Department of

Corrections, which provides that “[a]ny history of con-

finement for mental illness in an institution or sanitarium

is cause for permanent rejection” from employment (Ad-

ministrative Manual § 6034(a)). Compare Ginsberg v. New

York, 390 U.S. 629, 633, n.2 (1968) (provision providing

for discretionary revocation of license to operate luncheon-

ette business for conviction of any crime) ; Street v. New

See, e.g., Hatter v. Los Angeles City High School District, 452

F.2d 673, 674 (9th Cir. 1971); Wilson v. Webster 467 F.2d 1282,

1283-1284 (9th Cir. 1972).

12

York, 394 U.S. 576, 579, n.3 (1969). And, strikingly similar

to the use of prior convictions to impeach credibility, it has

been recognized that “records of commitments to a mental

institution will certainly be used in any subsequent proceed-

ings for civil commitment” (In re Ballay, 482 F.2d 648, 652

(D.C. Cir. 1973) (Wright, J.)). See Conservatorship of

Buchanan, 78 Cal.App.3d 281, 289, n.6 (1978) (approving

use of such records in California courts).

Appellant recognizes that summary reversal of state

court decisions is not favored. However, the collateral con-

sequences mootness issue was extensively briefed in the

courts below and the Court of Appeal was made aware of

the numerous federal decisions which directly support the

contention made by appellant here. The Court of Appeal’s

inexplicable refusal to even address this issue in its opin-

ion and its dismissal of the action on the pleadings merits

summary reversal.

2. The Decision in Vitek v. Jones Mandates Summary

Reversal

This court’s recent decision in Vitek v. Jones, ........ U.S.

poked , 48 L.W. 4317 (March 25, 1980) controls the due proc-

ess claim raised by appellant and mandates summary rever-

sal. Section 2684, similar to the statute at issue in Vitek,

limits transfers to those prisoners who are mentally ill,

whose rehabilitation would be expedited, and who would

benefit from treatment in a state hospital. Section 2684 thus

creates a liberty interest similar to that created by the

Nebraska statute in Vitek. Finally, the same stigmatizing

consequences brought about by a mental hospital transfer

as identified in Vitek are also present under § 2684,

13

3. This Court Should Note Probable Jurisdiction to

Determine the Validity, Under the Equal Protection

Clause, of Statutes Which Permit the Placement of

Prisoners in Mental Institutions Pursuant to Pro-

cedures and Standards Vastly Different From Those

Applied in the Placement of All Other Classes of

Individuals

Sections 2684 and 2685 create massive procedural and

substantive differences between prisoners confined in

county jails and state prisons and between prisoners con-

fined in state prisons and numerous other classes of indi-

viduals who, like state prisoners, are deprived of their lib-

erty and “enmeshed in and subject to the criminal justice

system” (Harmon v. McNutt, 587 P.2d 537, 539 (Wash.

Supreme Court 1978)). With the exception of state prison-

ers confined in a mental institution pursuant to ¢§ 2684 and

2685, virtually every class of individuals subject to such

confinement is afforded stringent procedural safeguards

and narrow placement standards. Individuals confined in

county jails may be transferred to mental institutions only

pursuant to California Penal Code § 4011.6 which incorpo-

rates the stringent procedural provisions (including coun-

sel and, at one stage, a court or jury trial) and narrow

standards of the Lanterman-Petris-Short Act. See, Califor-

nia Welfare and Institutions Code, §{ 5150, et seq. ; Califor-

nia Penal Code § 4011.6, App. F, pp. 2-5. Other classes of

individuals who are already deprived of their liberty are

also afforded substantial procedural protections prior to

their confinement in a mental institution even when, as

' with state prisoners and county jail inmates, the confine-

- ment cannot exceed the period of their sentence. See, e.g.,

14

provisions regarding mentally disordered sex offenders dis-

cussed in In re Moye, 22 Cal.3d 457, 464 (1978). Finally,

what has been described as the “weighty equal protection

problems” posed by statutes such as §§ 2684 and 2685

(Souder v. McGuire, 516 F.2d 820, 822-823 (3d Cir. 1975))

are exacerbated by the fact that the same persons may be

summarily placed and detained in a mental institution pur-

suant to § 2684 or afforded substantial procedural protec-

tions prior to such detention pursuant to the Lanterman-

Petris-Short Act. See, Welfare and Institutions Code

§ 5352.5, App. F., pp. 1-2.

The substantial nature of this question is illustrated

by the fact that since 1969 six courts have considered the

precise question raised here and in each instance voided

statutes strikingly similar to §¢¢ 2684 and 2685 on equal pro-

tection grounds. See Matthews v. Hardy, 420 F.2d 607 (D.C.

Cir. 1969) (Wright, J.), cert. denied, 397 U.S. 1010 (1970) ;

United States ex rel Schuster v. Herold, 410 F.2d 1071 (2d

Cir. 1969), cert. denied, 396 U.S. 847 (1969); Harmon v.

McNutt, 587 P.2d 537, 5389 (Wash. Supreme Court 1978);

Chesney v. Adams, 377 F.Supp. 887 (D. Conn. 1974), aff’d

without opinion, 508 F.2d 836 (2d Cir. 1975) ; United States

ex rel. Souder v. Watson, 413 F.Supp. 711 (M.D. Penn.

1976); Sites v. McKenzie, 423 F.Supp. 1190 (N.D. W.Va.

1976). A reeent report by experts in the mental health

field is in full agreement with the above decisions and rec-

ommends that “[{a]ll jurisdictions seeking involuntary hos-

pitalization for prisoners should provide safeguards equiv-

alent to those accorded non-prisoners undergoing civil

commitment.” Report to the President from the President’s

Commission on Mental Health, p. 73, n.48 (1978),

15

CONCLUSION

For the reasons discussed above, the judgment of the

Court of Appeal of California should be reversed by this

Court.

Dated: April 7, 1980.

Respectfully submitted,

Peter E. SHEEHAN

Streran M. Rosenzweia

Ciirrorp Sweet

LEGAL AID SOCIETY

OF ALAMEDA COUNTY

Attorneys for Appellant

(Appendices Follow)

APPENDICES

APPENDIX A

In the Court of Appeal

of the

State of California

First Appellate District

Division Four

1 Civil No. 45908

(Sup. Ct. No. 67432)

Canal Keyhea, et al.,

Plaintiffs and Appellants,

in |

J. J. Enomoto, et al.,

Defendants and Respondents.

J

[Filed Dec. 21, 1979]

Canal Keyhea (Keyhea) filed a complaint in the Solano

County Superior Court for declaratory and injunctive

relief against J. J. Enomoto, Director of the Department

of Corrections; T. L. Clannon, Superintendent of the Cali-

fornia Medical Facility; Jerome Lackner, Director of the

California Department of Mental Health; Sylvia Winters,

Medical Director of Patton State Hospital; Howard Way,

former Chairman of the California Adult Authority and

present Chairman of the Community Release Board; their

agents, employees, and successors in interest (respondents).

A-2

A first amended complaint was filed to include as plaintiffs

Valamar A. Schaaf and Evelyn Schaaf, two state tax-

payers, and to include a class action.

The first amended complaint seeks a declaratory judg-

ment that Penal Code sections 2684 and 2685, which provide

for the transfer and commitment of state prisoners to state

mental hospitals and Department of Corrections Adminis-

trative Manual section 346.15, which provides for the in-

voluntary administration of a psychotropic drug to state

prisoners are unconstitutional; an injunction against ex-

pending public money and time in enforcing Administrative

Manual section 346.15; an injunction against subjecting

Keyhea and the class to the involuntary administration

of drugs unless the following occurs: a compelling state

interest is shown, there is no less onerous alternative and

a mandatory hearing incorporating due process procedures

is afforded prior to the drugging; an injunction requiring

respondents to adhere to the provisions of Administrative

Manual section 346.15; an injunction against transferring

Keyhea and the class to a state mental hospital without

procedural due process protections; an injunction against

retention of Keyhea at Patton State Hospital; and an in-

junction requiring expungement from Keyhea’s records any

reference to his transfer.

The court filed an order sustaining respondents’ de-

murrer with leave to amend on the following grounds: (1)

the court has no jurisdiction as Keyhea has not exhausted

his administrative remedies; (2) the complaint does not

allege sufficient facts to meet class action criteria; (3) the

complaint does not state sufficient facts to constitute a

A-3

cause of action under 42 United States Code, section 1983;

(4) the complaint does not state facts alleging a proper

state taxpayers’ action under Code of Civil Procedure sec-

tion 526a.

The trial court did not reach or rule upon the remaining

grounds of demurrer advanced by appellants, including the

ground that the first amended complaint did not. allege

facts sufficient to constitute a cause of action, and we do

not rule on that ground at this time. Appellants failed to

further amend their complaint. Judgment of dismissal was

entered. The appeal is from the judgment.

Keyhea was a state prisoner confined at the Correctional

Medical Facility at Vacaville until February 1977.1 While

at Vacaville, psychotropic drugs were administered to

Keyhea without his consent.

On March 18, 1977, Keyhea was transferred from the

Correctional Medical Facility operated by the Department

of Corrections to Patton State Hospital, a hospital for

mentally disordered individuals, operated by the Depart-

ment of Health. Keyhea remained at Patton State Hospital

until May 19, 1978, when he was released on parole. On

July 19, 1979, Keyhea was returned to state prison for a

90-day psychiatric observation. The 90-day period has now

1$ince the trial court sustained respondents’ demurrer we must

accept the allegations of appellant’s first amended complaint as

true, determining whether such allegations state, or can be amended

to state, a cause of action. (See Griffith v. Department of Public

Works (1956) 141 Cal.App.2d 376, 379-380. )

A-4

expired. It also appears that his parole period has now

expired and that he is entitled to discharge from custody.’

Appellants Valamar Schaaf and Evelyn Schaaf have al-

leged in the first amended complaint that section 346.15 of

the California Department of Corrections Administrative

Manual is unconstitutional, thus expenditure of funds pur-

suant to section 346.15 is illegal and wasteful.

Appellants Schaaf assert standing pursuant to Code of

Civil Procedure section 526a, which provides that “An

action to obtain a judgment, restraining and preventing any

illegal expenditure of, waste of, or injury to, the estate,

funds, or other property of a county, town, city, or city

and county of the state, may be maintained against any

officer thereof, or any agent, or other person, acting in its

behalf, either by a citizen resident therein, or by a corpo-

ration, who is assessed for and is liable to pay, or, within

one year before the commencement of the action, has paid,

a tax therein... .”

The issue before us is whether Code of Civil Procedure

section 526a applies to suits directed at state agencies and

state officials despite its omission of any reference to such

parties.

Appellants rely upon several cases which have held that

a liberal interpretation of section 526a includes suits

against state agencies and officials. (Adams v. Department

of Motor Vehicles (1974) 11 Cal.3d 146; Serrano v. Priest

(1971) 5 Cal.3d 584; Blair v. Pitchess (1971) 5 Cal.3d 258;

*The information relative to = parole and discharge is sup-

plied by the Attorney General and is not contradicted by appellants’

counsel,

A-5

Marin Hospital Dist. v. Department of Health (1979) 92

Cal.App.3d 442; Los Altos Property Owners Assn. v.

Hutcheon (1977) 69 Cal.App.3d 22; Duskin v. San Fran-

cisco Redevelopment Agency (1973) 31 Cal.App.3d 769.)

Respondents contend that a major flaw appears in all

of these cases in that each case has relied upon the hold-

ing in preceding cases and by so doing has perpetuated

an erroneous interpretation of section 526a. In Ahlgren

v. Carr (1962) 209 Cal.App.2d 248, the court discussed

the common law right of a taxpayer to enjoin an unlawful

expenditure of state funds. The discussion made no refer-

ence to Code of Civil Procedure section 526a. Under com-

mon law authority, “a taxpayer may sue a governmental

body in a representative capacity in cases involving fraud,

collusion, ultra vires, or failure on the part of the govern-

mental body to perform a duty specifically enjoined.”

(Gogerty v. Coachella Valley Junior College Dist. (1962)

57 Cal.2d 727, 730.) Relying upon Gogerty, which found

that the common law theory was not limited to municipali-

ties, but applied to all governmental bodies, the court in

Ahlgren held that a taxpayer has the right to maintain an

action against state officers and agencies. (Ahlgren v. Carr,

supra, 209 Cal.App.2d 248 at p. 254.) In California State

Employees’ Assn. v. Williams (1970) 7 Cal.App.3d 390,

the court cited Ahlgren v. Carr, as authority for holding

that the taxpayer/plaintiff had a common law right to

bring an action against the state.

The defective interpretation of section 526a, according

to respondents, began with Blair v. Pitchess, supra, 5 Cal.

3d 258, which relied upon Ahlgren v. Carr and California

A-6

State Employees’ Assn. v. Williams, supra, as support for

its statement that “it has been held that taxpayers may

sue state officials to enjoin such officials from illegally ex-

pending state funds [under Code of Civil Procedure sec-

tion 526a”] (emphasis in original) (Blair v. Pitchess,

supra, 5 Cal.3d 258 at p. 268). Obviously, the court erred

in relying upon either case as authority for the right of

taxpayers to sue state officials under section 526a when

both cases dealt solely with the common law theory and

not with the statutory rule. With its genesis in Blair v.

Pitchess, the erroneous interpretation continued. In Ser-

rano v. Priest, supra, 5 Cal.3d 584, the court stated in a

footnote that “it has been held that state officers too may

be sued under section 526a. (Blair v. Pitchess, ante, p. 258,

at p. 267; California State Employees’ Assn. v. Williams

(1970) 7 Cal.App.3d 390, 395 [86 Cal.Rptr. 305]; Ahligren

7. Carr (1962) 209 Cal.App.2d 248, 252-254 [25 Cal. Rptr.

887]).” (Id., at p. 618, fn. 38.) Blair was again cited in

Adams v. Department of Motor Vehicles, supra, 11 Cal.

3d 146, 151 and Duskin v. San Francisco Redevelopment

Agency, supra, 31 Cal.App.3d 769, 773, for authority that

state officials may be sued under section 526a.

Respondents further claim that the Court of Appeal

cases have utilized the liberal, albeit erroneous, interpre-

tation of section 526a to extend coverage of section 526a

to school districts (Los Altos Property Owners Assn. v.

Hutcheon, supra, 69 Cal.App.3d 22, 26-30) and to hospital

districts (Marin Hospital Dist. v. Department of Health,

supra, 92 Cal.App.3d 442 at p. 450).

A-7

Respondents further contend that it is clear from a study

of the cases that the Supreme Court’s erroneous holding

in Blair v. Pitchess has been repeated.* Section 526a states

that only certain governmental bodies are subject to a tax-

payer’s suit. The State of California is clearly omitted

from the section and it does not appear that such omission

was an oversight on the part of the Legislature. Section

526a was adopted in 1909 (ch. 348, §1, p. 578), amended

in 1911 (ch. 71, § 1, p. 87), and 1967 (ch. 706, § 1, p. 2080).

Had the Legislature intended to extend coverage to the

State of California, then surely the omission would have

been corrected by now. This court is bound by the clear

wording of the statute and may not provide additional

words to alter its purpose. (People v. Knowles (1950) 35

Cal.2d 175, 183.)

Nevertheless, our Supreme Court in Serrano v. Priest,

supra, 5 Cal.3d 584 at page 618, footnote 38, stated: “It

has been held that state officers too may be sued under

section 526a,” and again in Stanton v. Mott (1976) 17 Cal.

3d 206, 223, the court cited section 526a as authority for

a taxpayer to sue a state officer. In addition, there is an-

other authority which gives a taxpayer the right to sue

state agencies and state officials; the common law. The

common iaw theory, however, is limited to certain grounds

for bringing suit against the state: “fraud, collusion, ultra

vires, or a failure . . . to perform a duty specifically

enjoined” (Silver v. City of Los Angeles (1961) 57 Cal.2d

39, 40-41).

*The court in Los Altos Property Owners Assn. v. Hutcheon,

supra, 69 Cal.App.3d 22, noted that the Aigrén caso did wot make

any reference to 5 paella 526a. (Id., at p. 27, atte 6.)

A-8

In order for appellants Schaaf to assert standing under

the common law rule, their allegation of wrongdoing must

fall within one of the classifications specified in Silver.

Appellants Schaaf contend that respondent California

Department of Corrections unlawfully expended funds

pursuant to an allegedly unconstitutional section in the

department’s Administrative Manual. The court in Ahlgren

v. Carr, supra, 209 Cal.App.2d 248, found that, under the

common law rule, plaintiff taxpayers have a right to sue

state officials for illegally expending public funds. Although

the court did not specify which Silver classification such

action comes within, by deductive reasoning it is clear that

the illegal expenditure was an ultra vires act of the govern-

mental body. There were no facts in Ahlgren to support

the remaining three classifications: fraud, collusion nor

failure of the state to perform a duty enjoined. The court

in Wirin v. Horrall (1948) 85 Cal.App.2d 497, specifically

held that an illegal expenditure of public funds is an ultra

vires act. (Jd., at pp. 504-505.)

Thus, appellants, as taxpayers, have standing to bring

an action against state officers and the trial court erred in

sustaining the demurrer on this ground.

I

The trial court held “The court has no jurisdiction of

this action as it does not appear in the complaint that

plaintiffs have exhausted their administrative remedies.”

Generally, where an administrative remedy is provided

by statute, relief must be sought from the administrative

body and this remedy exhausted before the courts will

—=

A-9

act. (See Abelleira v. District Court of Appeal (1941)

17 Cal.2d 280.)

Appellant Keyhea, however, contends that under the

circumstances of this case, exhaustion of remedies would

be futile. His argument is based upon the premise that

raising a constitutional challenge to a state statute before

an administrative agency which does not have the power

to declare the statute unconstitutional would be a futile act.

There has been a consensus in California courts that

exhaustion of remedies is a prerequisite to judicial relief

even where the statute to be applied is challenged on con-

stitutional grounds. (United States v. Superior Court

(1941) 19 Cal.2d 189, 195; Morton v. Superior Court (1970)

9 Cal.App.3d 977; Walker v. Munro (1960) 178 Cal.App.2d

67.) Walker v. Munro has been criticized and disapproved

in State of California v. Superior Court (1974) 12 Cal.3d

237, 250-251, where the Supreme Court allowed the peti-

tioner to challenge the constitutionality of the Coastal

Zone Conservation Act in court without first raising the

issue before the Coastal Zone Conservation Commission.

The court noted that “since an administrative agency is

not the appropriate forum in which to challenge the consti-

tutionality of the basic statute under which it operates,

there seems little reason to require a litigant to raise the

constitutional issue in proceedings before the agency as a

condition of raising that issue in the courts.” (J/d., at

p. 251.)

However, in a later case, Southern Pac. Transportation

Co. v. Public Utilities Com. (1976) 18 Cal.3d 308, the

Supreme Court held that the Public Utilities Commission

A-10

may declare a duly enacted statute unconstitutional. The

court noted that the Constitution and statutes of this state

grant the commission wide administrative, legislative and

judicial powers. (/d., at p. 311, fn. 2.)

It is unclear, as pointed out in Hand v. Board of

Examiners (1977) 66 Cal.App.3d 605, how Southern Pac.

Transportation Co. can be reconciled with State of Cali-

fornia v. Superior Court. The court in Hand concluded

that the most reasonable manner in which these two cases

can be harmonized is to construe Southern Pac. Transporta-

tion Co. as allowing only those administrative agencies

which are of constitutional origin to determine constitu-

tional challenges to statutes enacted by the Legislature.

(Id., at p. 619.)

It has not vet been determined by an appellate court

whether the Department of Corrections is an agency of

constitutional origin. Although the Department of Correc-

tions was not specifically created by the Constitution, it

was created by the Legislature in the exercise of a delega-

tion conferred on it by an express provision of the Con-

stitution. The question, however, of whether agencies of

constitutional origin or legislative origin have the power

to declare statutes unconstitutional is no longer material.

In 1978, article IIT, section 3.5 of the California Constitu-

tion, was amended to provide that administrative agencies

are without power to determine constitutional challenges

to legislative enactments. It specifically states that:

“See, 3.5. An administrative agency, including an

administrative agency created by the Constitution or

an initiative statute, has no power;

A-11

“(a) To declare a statute unenforceable, or refuse

to enforce a statute, on the basis of it being unconstitu-

tional unless an appellate court has made a determina-

tion that such statute is unconstitutional ;

“(b) To declare a statute unconstitutional;

“(e) To declare a statute unenforceable, or to refuse

to enforce a statute on the basis that federal law or

federal regulations prohibit the enforcement of such

statute unless an appellate court has made a determina-

tion that the enforcement of such statute is prohibited

by federal law or federal regulations.”

On the basis of this constitutional amendment alone, we

must conclude that the Department of Corrections, be it

an agency of constitutional origin or legislative origin,

may not decide the constitutional challenges raised by

Keyhea. Since the only issues appellant Keyhea raises

are of a constitutional nature, he is exempt from ex-

hausting his administrative remedies before seeking ju-

dicial relief. (Hand v. Board of Examiners, supra, 66

Cal.App.3d 605, at p. 619.) Thus, the court erred in con-

cluding that appellant Keyhea had a duty to exhaust, but

failed to exhaust, his administrative remedies.

Ill

Appellant Keyhea alleges that he represents an ascer-

tainable class.

Code of Civil Procedure section 382 provides that “when

the parties are numerous, and it is impracticable to bring

them all before the court, one or more may sue or defend

for the benefit of all.” The requirements for sustaining

a class action are clear: (1) there must be an ascertainable

class and (2) there must be a well defined community of

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interest in the questions of law and fact involved affecting

the parties to be represented. (Daar v. Yellow Cab Co.

(1967) 67 Cal.2d 695, 704.)

The first requisite for maintenance of a class action,

ascertainability of the class, presents a serious obstacle

in the case at bench. The number of members is indefinite

and although we do not require the identity of the in-

dividual members of the class, it is a prerequisite to

establish the existence of an ascertainable class. It is not

possible to ascertain what persons will be incarcerated in

the future in a state prison and subject to the provisions

of Administrative Manual section 346.15 and Penal Code

sections 2684 and 2685. In Alvarez v. Wiley (1977) 71 Cal.

App.3d 599, the court held that a class action could not

be sustained where the complaint alleges that members

of the class consist of future heroin addicts confined in

the Tulare County Jail. (Jd., at p. 602.)

In Gonzales v. State of California (1977) 68 Cal.App.3d

621, the court found that including as members of the class

all persons who will suffer in the future convictions under

Vehicle Code section 23102, subdivision (a), would result

in an incognizable and unmanageable class of plaintiffs.

(Id., at p. 629.)

It does not appear from the record that appellant

Keyhea is now a member of the interested class he claims

to represent, a requisite element to the maintenance of a

class action. (LaSala v. American Sav. & Loan Assn.

(1971) 5 Cal.3d 864, 875 and all cases cited at p. 875, fn.

7.) There is no community of interest between appellant

Keyhea and the other members of the class for they are

A-13

not similarly situated since Keyhea is no long incarcer-

ated in the state prison nor subject to Administrative

Manual section 346.15 and to Penal Code sections 2684

and 2685.

At the time of filing his complaint on July 15, 1977,

appellant Keyhea was confined at Patton State Hospital.

He was, however, released on parole on May 19, 1978,

approximately five months before the court filed an order

sustaining the demurrer to the first amended complaint.

He was subsequently returned to prison for 90 days but

that period has now expired. Also, it appears that Keyhea’s

parole period has now expired and that he is entitled to or

has been discharged from custody.

In support of his contention that he continues to repre-

sent the class despite his present status, appellant Keyhea

cites us to Geraghty v. United States Parole Commission

(1978) 579 F.2d 238. In that case, it is held that once a

class action ts certified, the mooting of a claim set forth

by the named plaintiff does not automatically deprive a

court of jurisdiction over the cause of action asserted by

the class. (Id., at p. 248.) Keyhea’s suit, however, was not

properly certified as a class action before he was released

on parole, thus it is not jurisdictionally appropriate to

continue to entertain the suit. (See Geraghty v. United

States Parole Commission, supra, 579 F.2d 238.)

IV

It is unnecessary to determine whether appellants’ con-

tentions state sufficient facts to constitute a cause of

action under 42 United States Code, section 1983, since

the action has become moot due to Keyhea’s discharge

from custody. Although the trial court did noticonsider

the issue of mootness raised in the demurrer, it is our

prerogative to determine whether the action is moot.

any of the grounds raised in the demurrer are sustain-

able, we must affirm the trial court’s ruling. (Gonzales v.

State of California, supra, 68 Cal.App.3d 621 at p. 627.)

At the time Keyhea filed the first amended complaint,

he was confined in Patton State Hospital. However, he

was released on parole before the trial court issued its

order sustaining the demurrer.

“TAjlthough a case may originally present an existing

controversy, if before decision it has, through act of the

parties or other cause, occurring after the commencement

of the action, lost that essential character, it becomes a

moot case or question which will not be considered by the

court.” (Wilson v. L. A. County Civil Service Com. (1952)

112 Cal.App.2d 450, 453.)

Here, we have no actual controversy as to Keyhea. He

is no longer subjected to Penal Code sections 2684 and

2685 and Administrative Manual section 346.15. Any

rights Keyhea may have had pursuant to those provisions

do not presently exist.

Appellant Keyhea relies upon three federal cases to

support his proposition that an inmate’s release on parole

does not render the action moot. (Evans v. Paderick

(1977) 443 F.Supp. 583; Souder v. McGuire (1976) 423

F.Supp. 830; Fhagen v. Miller (1969) 306 F.Supp. 634.)

Although all three inmates challenged the constitutionality

of the procedures authorizing commitment to a state

mental hospital, none of the inmates had been released

~\

~~

A-15

on parole. Each inmate had been returned to prison at

the time of the judicial determination of the issues. Yet,

the courts found that the actions were not moot, especially

in light of each inmate’s history of prior commitments to

the state mental hospital.

The possibility of future commitments of Keyhea ap-

pears remote and speculative. At the present time there

Dea _ are no facts to support the contention that Keyhea, now

“discharged, will be recommitted. Due to the absence of a

justiciable controversy, this court is unable to render an

effective decree responsive to appellants’ complaint.

The judgment of dismissal is affirmed as to -Canal

Keyhea, individually and on behalf of all others similarly

situated. The judgment is reversed as to Valamar A.

Schaaf and Evelyn Schaaf and the cause is remanded to

the trial court for further proceedings consistent with this

opinion. Appellants Valamar A. Schaaf and Evelyn

Schaaf to recover their costs on appeal. The other parties

to bear their own costs on appeal.

Caldecott, P. J.

We concur:

Rattigan, J.

Christian, J.

APPENDIX B

‘Court of Appeal of the State of California

First Appellate District

Division Four

1 Civ. No. 45908

Superior Court No. 67432

)

Canal Keyhea, et al.,

Plaintiffs and Appellants,

vs.

J. J. Enomoto, et al.,

Defendants and Respondents.

d

[Filed Jan. 18, 1980]

ORDER MODIFYING OPINION

AND DENYING REHEARING.

BY THE COURT:

It is ordered that the opinion filed herein on December

21, 1979, be modified in the following particulars:

On page 1, line 1 should be changed to read as follows:

Canal Keyhea (Keyhea) filed a complaint on behalf of

himself and all others similarly situated in the [the sen-

tence then continues as is with no other changes].

B-2

On page 1, line 12 should end with a period after the

word taxpayers; line 13 should be deleted.

On page 3, line 15 (beginning of the third full para-

graph), the date March 18, should be changed to Febru-

ary 3.

On page 16, a new paragraph should begin after line 16,

which will read:

Appellant’s request to take judicial notice is granted.

The petitions for rehearing are denied.

Dated Jan. 18, 1980

CALDECOTT, P.J.

APPENDIX C

In the Superior Court

of the

State of California

in and for the

County of Solano

No. 67432

4

Canal Keyhea, et al.,

Plaintiffs,

vs. ,

J. J. Enomoto, et al.,

Defendants.

[Filed Nov. 28, 1978]

JUDGMENT OF DISMISSAL AFTER

ORDER SUSTAINING DEMURRER

WHEREAS, defendants’ demurrer to plaintiffs’ First

Amended Complaint and amendment thereto has been sus-

tained and the time within which the Court granted leave

to amend said complaint has expired and plaintiffs have

failed to file any amended complaint; and

WHEREAS, said order sustaining the demurrer herein

was rendered on October 12, 1978, and plaintiffs were

served notice of said ruling on October 18, 1978; and ap-

plication has been made to the Clerk of this Court for entry

C-2

of judgment in favor of defendants and against plaintiffs

and good cause appearing therefor;

IT IS ORDERED, ADJUDGED, AND DECREED that

this action be and the same hereby is, dismissed with prej-

udice; plaintiffs to take nothing by this action.

Dated: Nov. 27, 1978

ELLIS R. RANDALL

Judge of the Superior Court

C-3

In the Superior Court

of the

State of California

in and for the

County of Solano

Department No. 3

No. 67432

)

Canal Keyhea, et al.,

Plaintiffs,

vs.

J.J. Enomoto, et al.,

Defendants.

J

[Filed Oct. 13, 1978]

ORDER SUSTAINING DEMURRER

Defendants’ demurrer was heard on February 17, 1978.

Plaintiff appeared by Peter J. Sheehan. Deputy Attorney

General Karl S. Mayer appeared for defendants. The last

letter brief was filed on July 21, 1978.

The court has carefully read and considered the points

and authorities presented by the parties. The court notes

the complaint was filed on July 15, 1977. Plaintiffs were

allowed to amend the complaint and later added an amend-

ment to the amendment. The posture of the case as pointed

out by defendants is that the complaint pleads a federal

civil rights action, a taxpayer’s action, a class action, mul-

C-4

tiple demands for declaratory and injunctive relief, includ-

ing expungement of records, thirteen distinct state and

federal constitutional provisions, four distinct state and

federal statutes, a number of Department of Corrections,

Community Release Board and Department of Health reg-

ulations to consider and an unnecessary large number of

defendants. Defendants complain “though the action as

framed may seem to be a law review editor’s delight, it

is a judge’s and a litigant’s nightmare”.

Defendants’ demurrer is contained in thirty-nine objec-

tions to five causes of action in the first amended com-

plaint. Plaintiffs’ answer to defendants’ objections is con-

tained in 64 pages of contrary reasoning. More briefs and

differing contentions are stated back and forth in many

more pages of memoranda.

The court has spent many, many hours in an attempt

to reconcile the opposing points of view and finds and

concludes for purposes of this demurrer as follows:

(1) The court has no jurisdiction of this action as it

does not appear in the complaint that plaintiffs have ex-

hausted their administrative remedies.

(2) The complaint does not allege sufficient facts to

meet class action criteria.

(3) The complaint does not state sufficient facts to con-

stitute a cause of action under 42 U.S.C. Section 1983.

(4) The complaint does not state facts alleging a proper

state taxpayers’ action under C.C.P. Section 526a,

C5

For the reasons stated above, the court does not reach

the remaining grounds of demurrer advanced by defend-

ants. Accordingly,

IT IS HEREBY ORDERED that said demurrer be and

the same is hereby sustained with thirty (30) days allowed

to amend.

Dated: October 12th, 1978.

/s/ ELLIS R. RANDALL

Judge of the Superior Court

APPENDIX D

Clerk’s Office, Supreme Court

4250 State Building

San Francisco, California 94102

Feb. 27, 1980

I have this day filed Order

HEARING DENIED

In re: 1 Civ. No. 45908

Keyhea et al.

vs.

J. J. Enomoto, et al.

Respectfully,

G. E. BISHEL

Clerk

68378-877 2-79 4M OSP

APPENDIX E

In the Court of Appeal

of the

State of California

First Appellate District

Division Four

:

Canal Keyhea, et al.,

Appellant,

vs. | :

J.J. Enomoto, et al.,

Appellees.

:

[Filed Mar. 10, 1980]

NOTICE OF APPEAL

TO THE SUPREME COURT

OF THE UNITED STATES

Peter E. Sheehan

Clifford C. Sweet

Legal Aid Society of Alameda County

2357 San Pablo Avenue

Oakland, CA 94612

Telephone: (415) 465-4376

Jonathan S. Chasan

2437 Durant Avenue, Suite 104

Berkeley, CA 94704

Telephone: (415) 848-1960

Attorneys for Appellant

E-2

NOTICE IS HEREBY GIVEN that Canal Keyhea, the

appellant above-named, hereby appeals to the Supreme

Court of the United States from the final judgment of the

Court of Appeal of the State of California, affirming the

dismissal of the complaint as to Canal Keyhea, entered in

this action on March 4, 1980.

This appeal is taken pursuant to 28 U.S.C. § 1257(2).

Dated: March 6, 1980

/s/ PETER E. SHEEHAN

Peter E. Sheehan

Counsel for Appellant

E-3

PROOF OF SERVICE BY MAIL

I, the undersigned, state I am over 18 years of age, a

resident of Alameda County, and not a party to the within

action; my business address is 2357 San Pablo Avenue,

Oakland, CA 94612. On March 6, 1980, I served a true copy

of the attached Notice of Appeal to the Supreme Court of

the United States.

By placing said copy in an envelope addressed as

follows:

Karl Mayer Clerk

Deputy Attorney General Superior Court

6000 State Bldg. Solano County

San Francisco, CA 94102 Fairfield, CA 94533

Said envelope was then sealed and postage fully prepaid

thereon and deposited in the United States mail at Oakland,

Alameda County, California. That there is delivery service

by the U.S. mail between the place of mailing and the place

so addressed.

I declare under penalty of perjury that the foregoing is

true and correct.

Executed on March 6, 1980, at Oakland, California.

/s/ MARY ANN WONG

Declarant

APPENDIX F

STATUTORY PROVISIONS INVOLVED

California Welfare and Institutions Code § 5352.5:

Conservatorship proceedings may be initiated for any

person committed to a state hospital or local mental health

facility or placed on outpatient treatment pursuant to Sec-

tion 1026 or 1370 of the Penal Code or transferred pur-

suant to Section 4011.6 of the Penal Code upon recommen-

dation of the medical director of the state hospital, or his

designee, or professional person in charge of the local men-

tal health facility, or his designee, or the local mental health

director, or his designee, to the conservatorship investiga-

tor of the county of resident of the person prior to his ad-

mission to the hospital or facility or of the county in which

the hospital or facility is located. The initiation of con-

servatorship proceedings or the existence of a conservator-

ship shall not affect any pending criminal proceedings.

Subject to the provisions of Sections 5150 and 5250, con-

servatorship proceedings may be initiated for any person

convicted of a felony who has been transferred to a state

hospital under the jurisdiction of the State Department of

Mental Health pursuant to Section 2684 of the Penal Code

by the recommendation of the superintendent of the state

hospital to the conservatorship investigator of the county

of residence of the person or of the county in which the

state hospital is located.

Subject to the provisions of Sections 5150 and 5250, con-

servatorship proceedings may be initiated for any person

committed to the Youth Authority, or on parole from a

facility of the Youth Authority, by the Director of the De-

F-2

partment of the Youth Authority or his designee, to the

conservatorship investigator of the county of residence of

such person or of the county in which such facility is situ-

ated.

The county mental health program providing conserva-

torship investigation services and conservatorship case

management services for any such persons except those

transferred pursuant to Section 4011.6 of the Penal Code

shall be reimbursed for the expenditures made by it for

such services pursuant to the Short-Doyle Act (com-

mencing with Section 5600) at 100 percent of such expendi-’

tures. Each county Short-Doyle plan shall include provision

for such services in the plan.

California Penal Code § 4011.6:

In any case in which it appears to the person in charge

of a county jail, city jail, or juvenile detention facility,

or to any judge of a court in the county in which the jail

or juvenile detention facility is located that a person in

custody in such jail or juvenile detention facility may be

mentally disordered, he may cause such prisoner to be taken

to a facility for 72-hour treatment and evaluation pursuant

to Section 5150 of the Welfare and Institutions Code and he

shall inform the facility in writing which shall be confiden-

tial, of the reasons that such person is being taken to the

facility. The local mental health director or his designee

may examine the prisoner prior to transfer to a facility for

treatment and evaluation. Thereupon, the provisions of

Article 1 (commencing with Section 5150), Article 4 (com-

mencing with Section 5250), Article 4.5 (commencing with

Section 5260), Article 5 (commencing with Section 5275),

F-3:

Article 6 (commencing with Section 5300), and Article 7

(commencing with Section 5325) of Chapter 2 and Chapter 3

(commencing with Section 5350) of Part 1 of Division 5

of the Welfare and Institutions Code shall apply to the

prisoner.

Where the court causes the prisoner to be transferred to

a 72-hour facility, the court shall forthwith notify the local

mental health director or his designee, the prosecuting

attorney, and counsel for the prisoner in the criminal or

juvenile proceedings about such transfer. Where the per-

son in charge of the jail or juvenile detention facility

causes the transfer of the prisoner to a 72-hour facility the

person shall immediately notify the local mental health

director or his designee and each court within the county

where the prisoner has a pending proceeding about such

transfer; upon notification by the person in charge of

the jail or juvenile detention facility the court shall forth-

with notify counsel for the prisoner and the prosecuting

attorney in the criminal proceedings about such transfer.

If the prisoner is detained in, or remanded to, a facility

pursuant to such articles of the Welfare and Institutions

Code, the facility shall transmit a report, which shall be

confidential, to the person in charge of the jail or juvenile

detention facility or judge of the court who caused the

prisoner to be taken to the facility and to the local mental

health director or his designee, concerning the condition of

the prisoner. A new report shall be transmitted at the end

of each period of confinement provided for in such articles,

upon conversion to voluntary status, and upon filing of

temporary letter of conservatorship.

F-4

A prisoner who has been transferred to an inpatient

facility pursuant to this section, may convert to voluntary

inpatient status without obtaining the consent of the court,

the person in charge of the jail or juvenile detention

facility, or the local mental health director. At the begin-

ning of such conversion to voluntary status, the person in

charge of the facility shall transmit a report to the person

in charge of the jail or juvenile detention facility or judge

of the court who caused the prisoner to be taken to the

facility, counsel for the prisoner, prosecuting attorney, and

local mental health director or his designee.

If the prisoner is detained in, or remanded to, a facility

pursuant to such articles of the Welfare and Institutions

Code, the time passed therein shall count as part of the

prisoner’s sentence. When the prisoner is so detained or

remanded, the person in charge of the jail or juvenile

detention facility shall advise the professional person in

charge of the facility of the expiration date of the

prisoner’s sentence. If the prisoner is to be released from

the facility before such expiration date, the professional

person in charge shall notify the local mental health

director or his designee, counsel for the prisoner, the

prosecuting attorney, and the person in charge of the jail

or juvenile detention facility, who shall send for, take, and

receive the prisoner back into the jail or juvenile detention

facility.

A defendant, either charged with or convicted of a

criminal offense, or a minor alleged to be within the juris-

diction of the juvenile court may be concurrently subject

F-5

to the provisions of the Lanterman-Petris-Short Act (Divi-

sion 5, Part 1, Welfare and Institutions Code).

If a prisoner is detained in a facility pursuant to such

articles of the Welfare and Institutions Code and if the

person in charge of such facility determines that arraign-

ment or trial would be detrimental to the well-being of the

prisoner, the time spent therein shall not be computed in

any statutory time requirements for arraingment or trial

in any pending criminal or juvenile proceedings. Other-

wise, nothing contained herein shall affect any statutory

time requirements for arraignment or trial in any pending

criminal or juvenile proceedings.

For purposes of this section, the term “juvenile detention

facility” includes any state, county, or private home or

institution in which wards or dependent children of the

juvenile court or persons awaiting a hearing before the

juvenile court are detained.