[00:00:00] Speaker 04:
I want to ask counsel before he even introduces himself, how many Coleman versus Newsom cases have there been that get to our court?

[00:00:10] Speaker 01:
In the last three decades, is that the question?

[00:00:14] Speaker 01:
Yeah, exactly.

[00:00:16] Speaker 02:
I thought you were going to say in the last three weeks, but go ahead.

[00:00:18] Speaker 02:
I wouldn't dare.

[00:00:21] Speaker 04:
Are we talking 10, 20?

[00:00:23] Speaker 01:
I would say in the realm of about 10.

[00:00:27] Speaker 04:
Thank you.

[00:00:27] Speaker 01:
But don't hold me to that, because... Oh, no, no, no.

[00:00:30] Speaker 04:
I just want to go ballpark.

[00:00:31] Speaker 01:
That's all.

[00:00:32] Speaker 01:
Thank you, Your Honor.

[00:00:35] Speaker 01:
Good morning, and may it please the Court, Deputy Attorney General Randy Zach on behalf of Defendants' Appellants.

[00:00:42] Speaker 01:
I'd like to reserve two minutes for rebuttal, and I'll watch the clock.

[00:00:46] Speaker 01:
I'll start with why this Court has jurisdiction, and then I'll move on to the merits.

[00:00:50] Speaker 01:
This Court has jurisdiction under both Section 1291 and Section 1292 because the order on appeal

[00:00:57] Speaker 01:
for the first time, made the Max custody policy part of this action's Eighth Amendment remedy.

[00:01:04] Speaker 01:
Prior to the order on appeal, defendants had a contractual obligation to implement the Max custody policy.

[00:01:10] Speaker 01:
But the order on appeal transformed that contractual obligation to perform custodial reviews into yet another court ordered Eighth Amendment requirement for mental health care.

[00:01:21] Speaker 01:
That makes it both final under Section 1291 and a new appealable injunction under Section 1292.

[00:01:28] Speaker 04:
Let me ask you this, Council.

[00:01:29] Speaker 04:
It seemed pretty clear to me that because the district court's order only adds the PIP max custody indicator to the preliminary list of indicators that there would be later opportunities for appeal.

[00:01:42] Speaker 01:
Isn't that right?

[00:01:43] Speaker 01:
I don't think that's right, Your Honor.

[00:01:45] Speaker 01:
I think the district court's order did two things, both of which were final and both of which made the max custody policy

[00:01:51] Speaker 01:
part of this action's eighth amendment remedy.

[00:01:53] Speaker 01:
The first thing it did was it interpreted the stipulation from three years, now three years ago, then two years ago, to say that the word remedy in the exclusionary provision referred to this action's eighth amendment remedy and therefore the max custody policy is part of this action's eighth amendment remedy because the district court signed off on that stipulation.

[00:02:13] Speaker 01:
That is certainly final for section 1291 jurisdiction and this court held in almost exactly the same situation

[00:02:21] Speaker 01:
that had Section 1291 jurisdiction there in Ashker.

[00:02:24] Speaker 01:
Where there, there was a settlement agreement.

[00:02:27] Speaker 01:
The district court interpreted that settlement agreement.

[00:02:30] Speaker 01:
Defendants appealed.

[00:02:31] Speaker 01:
This court held it had jurisdiction under Section 1291 and then reversed.

[00:02:37] Speaker 04:
Is the district court's order an injunction and following on that?

[00:02:40] Speaker 04:
Does it grant any sort of relief that was pleaded in the plaintiff's complaint?

[00:02:47] Speaker 01:
In general, the plaintiff's complaint asks for remedies to the Eighth Amendment violations, and the district court's order is an injunction because injunctions are court orders.

[00:02:57] Speaker 01:
Previously, there was a contractual obligation to implement a mass custody policy.

[00:03:02] Speaker 01:
Nobody disputes that that was signed off on by both parties and approved by the court.

[00:03:06] Speaker 01:
But the district court turned a contractual obligation into a constitutional requirement in a court order, and that makes it an injunction.

[00:03:16] Speaker 03:
Are you saying that all court orders are injunctions?

[00:03:19] Speaker 03:
No, Your Honor, but this... But why then?

[00:03:21] Speaker 03:
You know that's not true.

[00:03:23] Speaker 01:
I know, but I agree with Your Honor.

[00:03:26] Speaker 01:
This court order, however, made the max custody policy part of this action's 8th Amendment remedy.

[00:03:31] Speaker 01:
In the PLRA's language, it made it prospective relief because it made a new court ordered 8th Amendment requirement.

[00:03:38] Speaker 01:
And again, even if this court doesn't think it has jurisdiction under 1292,

[00:03:41] Speaker 01:
it certainly has jurisdiction to review the district court's erroneous interpretation under section 1291.

[00:03:47] Speaker 01:
Because in the post-judgment context, that's a final order, just like it was in Ashgar.

[00:03:54] Speaker 02:
I mean, there are aspects of this one that may be different from the one we just argued, where just on the face of some of the orders, it seems to indicate that the proceedings on this particular issue are not necessarily complete, right?

[00:04:09] Speaker 02:
I'm looking at some of the material

[00:04:11] Speaker 02:
from the May, 2023 order, right?

[00:04:14] Speaker 02:
Finalization of the list of CQIT key indicators is progressing jointly with the ongoing data remediation process and will be presented to the court for final approval once data remediation is complete.

[00:04:27] Speaker 02:
So why would you say that doesn't make this non-final?

[00:04:29] Speaker 01:
I think that also goes to Judge Smith's question, which is the district court has been very clear about this.

[00:04:36] Speaker 01:
CEQA indicators or CQIT indicators, as you put it,

[00:04:40] Speaker 02:
Secret.

[00:04:43] Speaker 01:
I'm going to refer to it that way if that's okay.

[00:04:46] Speaker 01:
Secret indicators match the constitutional requirements in this case.

[00:04:50] Speaker 01:
The court ordered constitutional requirements.

[00:04:52] Speaker 01:
So yes, those secret indicators which are tracking constitutional requirements, some of them are going through the technical process of making sure as a business rule they are tracking the constitutional requirement correctly.

[00:05:05] Speaker 01:
But the district court has never suggested

[00:05:08] Speaker 01:
that once it has created a constitutional requirement and a matching CEQA indicator, it will reconsider whether those constitutional requirements are part of this action's 8th Amendment remedy.

[00:05:18] Speaker 01:
And the order on appeal, this court doesn't even have to look at the CEQA indicators because the order on appeal went one step backwards to create the constitutional requirement.

[00:05:28] Speaker 01:
It interpreted a stipulation from two years ago to make that constitutional requirement, and that violated the PLRA.

[00:05:35] Speaker 01:
and it violated the party's agreement, the text of that agreement, which I'd like to turn to just for a second if there are no other questions about jurisdiction.

[00:05:44] Speaker 01:
The exclusionary provision, paragraph 15, was critical to the party's bargain.

[00:05:49] Speaker 01:
They told the district court that when the district court tried to delete it twice before it signed off on it.

[00:05:55] Speaker 01:
And why was it critical?

[00:05:56] Speaker 01:
Because it excluded the max custody policy from the ever-growing Eighth Amendment remedy in this case.

[00:06:03] Speaker 01:
The first sentence of that stipulation said,

[00:06:06] Speaker 01:
These stipulations shall not be included in the program guide or the compendium.

[00:06:11] Speaker 01:
And those are not only the two primary remedial documents, they're the only documents that compile other court ordered remedies.

[00:06:19] Speaker 01:
They are the documents that the court wants to put everything else in to make sure everybody keeps track of it.

[00:06:26] Speaker 01:
Second, the second sentence tried to capture everything else.

[00:06:30] Speaker 01:
It said, the stipulation sets forth the entirety of the remedy related to the issue set forth above.

[00:06:36] Speaker 01:
In other words, it was district court, you can't touch anything to do with the stipulation because we've resolved it all.

[00:06:44] Speaker 01:
And the district court and plaintiffs interpret that singular use of remedy as referring to this action's 8th Amendment remedy.

[00:06:51] Speaker 01:
And so in their view, the stipulation, excuse me, made the max custody policy part of this action's 8th Amendment remedy.

[00:06:59] Speaker 04:
But that- Let me ask you this.

[00:07:00] Speaker 04:
As you know, in the other case, I know you heard that.

[00:07:04] Speaker 04:
Your opponent suggested that what was going on here was nothing more than case management.

[00:07:10] Speaker 04:
What's different about this particular appeal that would counterweigh that?

[00:07:16] Speaker 04:
Why isn't this also case management?

[00:07:19] Speaker 04:
Again, Judge Mueller, a predecessor, been dealing with this for 30 years, trying to wrestle two giant elephants, if you will, try to get them to sit down for dinner, just ongoing

[00:07:30] Speaker 04:
And it's a big problem.

[00:07:32] Speaker 04:
But how does this say final thing?

[00:07:33] Speaker 04:
It's not going to be final.

[00:07:34] Speaker 04:
You would want something.

[00:07:35] Speaker 04:
Somebody else would want something.

[00:07:37] Speaker 04:
This is a very atypical final order, if it is one.

[00:07:41] Speaker 01:
I don't think that's true at all, Your Honor.

[00:07:43] Speaker 01:
And no amount of case management can allow the district court to create a new constitutional requirement.

[00:07:48] Speaker 01:
And that's what it did when it erroneously interpreted the stipulation.

[00:07:52] Speaker 01:
It turned what was a contract into a constitutional requirement.

[00:07:57] Speaker 01:
If you look at the Seventh Circuit's case in a ratio, the

[00:08:00] Speaker 01:
The 7th Circuit there reversed for the exact same reason.

[00:08:03] Speaker 01:
It says you violated the PLRA by turning up, by constitutionalizing a contractual agreement.

[00:08:09] Speaker 01:
And I'd like to just return for one second to the District Court's erroneous interpretation of remedy.

[00:08:15] Speaker 01:
The parties knew how to refer to this action's 8th Amendment remedy when they wanted to in the stipulation.

[00:08:22] Speaker 01:
In paragraphs 13 and 14, they referred specifically to the 8th Amendment remedy in this case, and those paragraphs

[00:08:29] Speaker 01:
They set forth their competing contentions.

[00:08:31] Speaker 01:
They agreed to disagree, essentially.

[00:08:33] Speaker 01:
And they said defendants' contention was, the mass custody policy was, I quote, not a necessary part of the Eighth Amendment remedy in this case.

[00:08:43] Speaker 01:
And the same point was made by plaintiffs.

[00:08:46] Speaker 01:
But then in paragraph 15, the parties used a different word.

[00:08:50] Speaker 01:
They used the generic form of the word remedy.

[00:08:52] Speaker 01:
And when two words or phrases are used in the same agreement, sorry, two different words or phrases are used in the same agreement, they must be interpreted

[00:09:00] Speaker 01:
And the district court gave them the same interpretation to jam the max custody policy into this action's eighth amendment remedy.

[00:09:09] Speaker 01:
That was not allowed under the PLRA or the party's agreement.

[00:09:12] Speaker 01:
I see I've gone a little bit over the two minutes I wanted to save.

[00:09:15] Speaker 02:
Yeah, we'll put two minutes on the clock when you come back.

[00:09:17] Speaker 02:
Thank you, Your Honor.

[00:09:18] Speaker 02:
Thank you.

[00:09:27] Speaker 00:
Good morning, may it please the court.

[00:09:29] Speaker 00:
My name is Adrian Harold and I represent the Coleman plaintiffs.

[00:09:33] Speaker 00:
I'd like to start with jurisdiction and then address two points made by opposing counsel.

[00:09:38] Speaker 00:
On jurisdiction, it is our position that this court lacks subject matter jurisdiction to consider the state's challenge to the district court's March 2024 order.

[00:09:47] Speaker 00:
Whether that issue is analyzed under the rightness doctrine as we present in our brief or under statutory basis for appellate jurisdiction, the relevant facts are the same.

[00:09:57] Speaker 00:
Here, the state is not challenging any of its substantive ongoing obligations under the stipulation or max custody policy.

[00:10:05] Speaker 00:
That is the state's plan for how to improve access to mental health care for max custody patients while they're in the prison psychiatric hospitals.

[00:10:14] Speaker 00:
The order on appeal simply requires the state to track whether it is following its chosen plan as part of the state's comprehensive self-monitoring tool.

[00:10:25] Speaker 00:
That's not an appealable order.

[00:10:27] Speaker 00:
It is not a final order under section 1291 because it clearly contemplates further proceedings.

[00:10:33] Speaker 00:
There are predefined processes to come that the court has said over and over again, including in the May 2023 order that Your Honor referenced, but also in September 2020, in December 2020, in 2021, and even in the order referring the state to bring a motion about its objections to the max custody indicators.

[00:10:54] Speaker 00:
The stages to come include processes that will give the state

[00:10:57] Speaker 00:
ample opportunity to be heard.

[00:10:59] Speaker 00:
It includes the design and crafting of these indicators, processes around whether, if any, compliance thresholds should be attached to them, and it's still yet to be seen how the court will use these CEQA monitoring reports as just part of an overall determination for whether the state has reached durable remedy.

[00:11:19] Speaker 02:
So just maybe walk through in terms of what does this

[00:11:23] Speaker 02:
What does this order actually require, and then what specifically do you see as the next steps that will come after this data is gathered?

[00:11:31] Speaker 00:
Yes, Your Honor.

[00:11:33] Speaker 00:
So this order has set placeholders for six indicators measuring max custody.

[00:11:40] Speaker 00:
The indicators include some that just confirm yes, no, whether the state is performing timely reviews, and some that look at the percentage and number of max custody patients in the PIPs.

[00:11:51] Speaker 00:
The next step, so far the indicators have been on hold during this appeal, but if the court dismisses the appeal for lack of jurisdiction or affirms, we'll move forward to the design phase that will look like the state working with a special master to develop what the indicators actually look like.

[00:12:10] Speaker 00:
And then down, the court has made clear that ultimate questions of compliance thresholds will be dealt in later court order.

[00:12:17] Speaker 00:
after, I'm getting to the weeds here, but after a dispute resolution process between the parties.

[00:12:23] Speaker 00:
The orders that I've just referenced outline that there'll be a stakeholder process where we would try to reach agreement.

[00:12:31] Speaker 00:
If not, we will try to present our different positions.

[00:12:34] Speaker 00:
The special master will make a recommendation, will respond to the recommendation.

[00:12:38] Speaker 00:
The court will issue an order.

[00:12:39] Speaker 00:
All of those things are yet to come.

[00:12:42] Speaker 04:
And for- Do you view this whole,

[00:12:46] Speaker 00:
Dispute before us now as basically a discovery dispute That that's certainly something more That that's certainly what it is at this point It's just requiring information and that's also why this is not an appealable injunction under section 1292 a 1 It is not an injunction on its face So the court has to turn to the three-part Carson test and here the state hasn't satisfied any one of those three requirements

[00:13:14] Speaker 00:
It does not have the practical effect of granting an injunction.

[00:13:18] Speaker 00:
Going back to your honor's discovery point, this does not change or modify any of the state's obligations to max custody patients.

[00:13:25] Speaker 00:
This is information gathering.

[00:13:27] Speaker 00:
But even if there was some practical effect, like an injunction here, the state has not shown a serious or irreparable harm.

[00:13:34] Speaker 00:
Monitoring is not the type of harm that warrants immediate appellate review.

[00:13:39] Speaker 00:
And going back to underlying concerns here about jurisdiction, the third part of the Carson test, the state can obtain the relief it seeks in a later appeal.

[00:13:49] Speaker 00:
It retains the option to appeal if its stated fear comes to pass.

[00:13:55] Speaker 00:
If the district court says you cannot terminate this action without showing compliance, whatever compliance has been determined to be for these max custody indicators.

[00:14:06] Speaker 00:
This appeal also raises the concern of piecemeal review.

[00:14:10] Speaker 00:
because of this order requiring tracking in the CEQIT, especially at this preliminary stage, is immediately appealable.

[00:14:16] Speaker 00:
It risks that all post-judgment orders concerning tracking, monitoring, periodic disclosures about defendant's plans or programs would also be immediately appealable.

[00:14:30] Speaker 00:
If this court has no further questions about jurisdiction, I'll turn to

[00:14:34] Speaker 00:
two points made by opposing council.

[00:14:37] Speaker 00:
First, it is not correct that the PLRA is implicated here.

[00:14:41] Speaker 00:
This is not perspective relief.

[00:14:42] Speaker 00:
This is monitoring.

[00:14:44] Speaker 00:
It does not change the legal relationship to these class members.

[00:14:48] Speaker 00:
And the state continues to provide not a single case showing that monitoring is perspective relief that triggers the PLRA.

[00:14:57] Speaker 00:
And to address one more point made by opposing council,

[00:14:59] Speaker 00:
He referred to what he calls the exclusionary provision.

[00:15:03] Speaker 00:
I believe that's section 15 of the stipulation and misreads it.

[00:15:07] Speaker 00:
So just to take the two sentences here.

[00:15:09] Speaker 00:
The first one says, the parties agree that defendant's plan shall not be included in the program guide or compendium.

[00:15:16] Speaker 00:
No one is saying that this plan should be part of the program guide or compendium.

[00:15:21] Speaker 00:
There are many, it's well established there are many other court ordered remedial plans in this action.

[00:15:28] Speaker 00:
the staffing plan that was the basis of the contempt order recently affirmed by this court.

[00:15:33] Speaker 00:
and the order imposing minimum treatment standards in the PIPs that was affirmed by this court last year.

[00:15:39] Speaker 00:
The second sentence of this so-called exclusionary provision says, this stipulation sets forth the entirety of the remedy relating to the issues set forth above.

[00:15:50] Speaker 00:
Certainly, this stipulation sets forth the entirety of the obligations under defendant's plan to, as the stipulation is titled, treat max custody patients in the psychiatric inpatient program.

[00:16:01] Speaker 00:
The court here,

[00:16:02] Speaker 00:
Visitor Court did nothing to modify anything about the stipulation.

[00:16:07] Speaker 00:
And that sentence also confirms its remedial nature here, that this plan aims to, as it expressly says, improve access to inpatient care, especially for this subpopulation, that where there have been years of undisputed findings, that they are among the most deprived in the Coleman class.

[00:16:27] Speaker 04:
That they- What is your response to opposing counsel?

[00:16:30] Speaker 04:
I can't remember, was it this case or the other?

[00:16:32] Speaker 04:
that Judge Mueller had converted, by going backwards, had converted what was a contractual agreement into a constitutional claim.

[00:16:41] Speaker 04:
What's your response to that?

[00:16:45] Speaker 00:
Here, the stipulation is clearly a court enforceable remedial plan aimed to improve access to mental health care for the Mexico City patients in the PIPs.

[00:16:54] Speaker 00:
The court did not go backwards and create any new constitutional requirements.

[00:16:59] Speaker 00:
These are ongoing obligations that the state will have to comply with indefinitely, and the monitoring tool is simply gathering information for whether they are performing those reviews.

[00:17:11] Speaker 00:
Nothing has changed.

[00:17:11] Speaker 04:
In other words, the Eighth Amendment violation was found long ago.

[00:17:15] Speaker 04:
You're just implementing the remedy, is that right?

[00:17:18] Speaker 00:
That's correct.

[00:17:19] Speaker 00:
And here the stipulation addresses two of the eighth amendment violations found even in the original injunction.

[00:17:25] Speaker 00:
One, the lack of access to very necessary inpatient care for the sickest class members.

[00:17:32] Speaker 00:
And two, the overuse of custodial restrictions.

[00:17:36] Speaker 00:
that at that point had led to just the segregation and supervision of our class members rather than treating them, which is still happening today for this population of Mexico City patients in the hospital.

[00:17:52] Speaker 00:
If this court has no further questions, we ask that you dismiss the appeal for lack of jurisdiction.

[00:17:58] Speaker 00:
Thank you.

[00:17:58] Speaker 02:
Thank you.

[00:18:15] Speaker 01:
This appeal is not about monitoring.

[00:18:17] Speaker 01:
The order below was not about monitoring.

[00:18:20] Speaker 01:
It was about interpreting a stipulation that excluded the max custody policy from this action's 8th Amendment remedy to mean that now it is part of the 8th Amendment remedy in this case.

[00:18:32] Speaker 01:
And just briefly, I'd like to talk about the jurisdictional argument.

[00:18:38] Speaker 01:
My colleague said that this wasn't ripe.

[00:18:44] Speaker 01:
and that this court lacked jurisdiction.

[00:18:46] Speaker 01:
But they never made that argument in their answering brief.

[00:18:50] Speaker 01:
And that's because this is ripe now.

[00:18:52] Speaker 04:
And if we look at the- We have jurisdiction to consider jurisdiction at any time, whether somebody even doesn't raise it, right?

[00:18:59] Speaker 01:
I understand.

[00:19:00] Speaker 01:
I completely agree.

[00:19:00] Speaker 01:
And my only point here was the things that she said was necessary and going forward, none of them undermined the point I made to begin, which was now the max custody policy is part of this constitutional remedy.

[00:19:15] Speaker 01:
There may be later proceedings about what degree of compliance is necessary to end this action for the max custody policy.

[00:19:22] Speaker 01:
But that doesn't mean this isn't a constitutional requirement.

[00:19:26] Speaker 01:
And if there is an appeal, a chance to appeal now, then we will never have a chance, defendants will never have a chance to appeal the max custody policy's inclusion in the eighth moment remedy in this case.

[00:19:36] Speaker 01:
And that's because the district court has already concluded that when it signed off on the stipulation three years ago,

[00:19:42] Speaker 01:
it made the Max custody policy part of this action's remedy.

[00:19:46] Speaker 01:
And that brings me to the second point, which is that couldn't be true without violating the PLRA.

[00:19:52] Speaker 01:
Even if the district court thought it was making the Max custody policy part of this action's eighth amendment remedy three years ago when it signed off on the stipulation, that required PLRA findings.

[00:20:04] Speaker 01:
It required a finding that the Max custody policy was not only addressing an eighth amendment violation, but it was the minimally invasive way to do so.

[00:20:12] Speaker 01:
It was required to bring, for the Eighth Amendment floor, to bring treatment up to the Eighth Amendment floor.

[00:20:19] Speaker 01:
And if I could say two more sentences, there have simply been no findings that a multilayered frequent custodial reviews are the Eighth Amendment floor.

[00:20:30] Speaker 01:
There hasn't been even a finding that one custodial review for max custody patients is necessary for Eighth Amendment mental health care.

[00:20:38] Speaker 01:
Thank you, Your Honors.

[00:20:39] Speaker 01:
We ask that you reverse.

[00:20:40] Speaker 02:
Thank you.

[00:20:40] Speaker 02:
Thank you both.

[00:20:41] Speaker 02:
This case is submitted.