BILL ANALYSIS                                                                                                                                                                                                    



                                                                       



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          |SENATE RULES COMMITTEE            |                  AB 1714|
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                                 THIRD READING


          Bill No:  AB 1714
          Author:   Fuentes (D)
          Amended:  6/30/10 in Senate
          Vote:     27 - Urgency

           
           SENATE APPROPRIATIONS COMMITTEE  :  8-1, 6/28/10
          AYES:  Kehoe, Cox, Alquist, Corbett, Leno, Price, Wolk, Yee
          NOES:  Denham
          NO VOTE RECORDED:  Walters, Wyland

           ASSEMBLY FLOOR  :  76-1, 6/1/10 - See last page for vote


          SUBJECT  :    Claims against the state:  payment

           SOURCE  :     Department of Justice


           DIGEST  :    This bill appropriates $1,490,000 from two funds  
          to the Department of Justice to pay settlements in (1)  
           Humphries v. Lockyer  , (2)  Gardner v. Schwarzenegger  , and  
          (3)  Berg v. California Horse Racing Board  .  Any funds  
          appropriated in excess of the amount required for the  
          payment of these claims shall revert to the General Fund  
          and to the Horse Racing Fund on June 30 of the fiscal year  
          in which the settlement is paid.

           Senate Floor Amendments  of 6/30/10 add $20,000,000 to pay  
          the settlement of the government claims of Jacycee Dugard  
          and each of her two minor children against the Department  
          of Corrections and Rehabilitation.

                                                           CONTINUED





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           ANALYSIS  :    

           Humphries v. Lockyer, et al., Ninth Circuit Court of  
          Appeals  ($536,000)  
           
          Craig and Wendy Humphries were arrested on suspicion of  
          having physically abused their teenage daughter.  When the  
          criminal case was dismissed, the couple obtained a finding  
          of factual innocence.  Nevertheless, pursuant to the Child  
          Abuse Neglect and Reporting Act (CANRA), the Los Angeles  
          Sheriff's Department reported the couple to the Department  
          of Justice (DOJ's) Child Abuse Central Index (CACI).  CANRA  
          requires reporting when the investigating authority  
          determines that the claim of child abuse is "not  
          unfounded," regardless of whether the suspect was actually  
          charged or arrested.  The Humphries sued the Sheriff's  
          Department and DOJ, alleging the CANRA was an  
          unconstitutional denial of due process.

          After losing in the trial court on defense motions seeking  
          summary judgment, the Humphries appealed.  The Ninth  
          Circuit Court reversed, finding CANRA and CACI to be  
          unconstitutional, because, in part, California offered no  
          procedure for the Humphries to remove their listing on the  
          database as suspected child abusers and thus, clear their  
          names.

          Prevailing civil rights suit plaintiffs are generally  
          entitled to attorney's fees.  The Humphries argued to the  
          Ninth Circuit Court that they were entitled to over $1.2  
          million in attorney's fees and expenses for the appellate  
          portion of the case.  The state opposed this claim as  
          premature.  The Ninth Circuit Court decided the claim was  
          not premature and referred it to an Appellate Commissioner.  
           In that proceeding, the commissioner recommended the  
          Humphries be awarded $592,580.92.  Under the commissioner's  
          recommendation, $533,323 of the total would be charged to  
          the state. 

          The commissioner's fee recommendation was adopted by the  
          Ninth Circuit Court.  Including anticipated interest, it is  
          projected that the amount due the Humphries under this  
          appellate attorney fee decision will be $536,000.








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           Gardner, et al., v. Schwarzenegger, et al., First District  
          Court of Appeal  ($562,000)  
           
          Proposition 36 enacted the Substance Abuse and Crime  
          Prevention Act of 2000.  The act diverted certain  
          nonviolent drug offenders to noncustodial drug counseling  
          and treatment in lieu of incarceration.  SB 1137 (Ducheny)  
          Chapter 63, Statutes of 2006, authorizes jail sanctions  
          when nonviolent drug offenders violate conditions of  
          Proposition 36 probation.  SB 1137 also specifies that if  
          any of its provisions were found unconstitutional, the  
          entire legislative measure would be placed on the ballot in  
          the next statewide election.

          Plaintiffs sued to invalidate SB 1137 as inconsistent with  
          the purposes of Proposition 36.  The trial court agreed,  
          finding that the provisions in SB 1137 relating to  
          short-term jail sanctions for offenders who violate their  
          Proposition 36 probation, and provisions excluding violent  
          offenders from probation, are inconsistent with the  
          purposes of Proposition 36.

          The Court of Appeal agreed with the trial court's analysis.  
           The Court of Appeal also found that Section 9 of SB 1137,  
          which allows for every provision of SB 1137 to be placed on  
          the ballot if any part is found unconstitutional, is itself  
          unconstitutional because it effectively provides for a  
          referendum without satisfying the legal prerequisites.

          Plaintiffs sought attorney's fees.  In 2009, plaintiffs  
          were awarded fees and costs in the amount of $425,821, plus  
          interest.  Plaintiffs then pursed a claim for fees incurred  
          for litigating the underlying fee question itself, i. e., a  
          fee on fee claims.  This resulted in an additional $83,834  
          plus interest.  The Department of Finance has requested the  
          total amount of $562,000 for the underlying fee award,  
          settlement of the fees on fees claim, and accrued interest.

           Berg v. California Horse Racing Board, Superior Court of  
          California, County of Sacramento  ($392,000)

          Pamela A. Berg worked as a horse racing steward for the  
          California Horse Racing Board (Board) from 1998 to 2006.   
          Berg filed her First Amended Complaint on March 20, 2009.   







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          Her lawsuit alleged discrimination and harassment based on  
          age and gender, and for retaliation, in violation of the  
          Fair Employment and Housing Act (FEHA).  In her deposition,  
          Berg alleged that Board superiors gave improper preferences  
          to less-qualified male racing stewards when making  
          assignments to California's larger race tracks.  Berg also  
          claimed the Board's failure to make such assignments, to  
          honor her 2006-2007 contract, and to contract for her  
          services after her 2006-2007 contract had expired, amounted  
          to retaliation for her existing discrimination claims in  
          violation of the FEHA.  

          Following a review of the allegations and discovery, the  
          Board reached settlement with Berg.  By its terms, Berg  
          will receive $400,000, of which $100,000 will be in the  
          form of a ten-year annuity with an approximate cost to the  
          board of $92,000.  

          The claim is to be paid from the Horse Racing Fund, and any  
          amounts in excess of that needed to pay the settlement,  
          including the purchase of the annuity, will revert to the  
          Horse Racing Fund.  The Horse Racing Fund (8550-3153)  
          receives revenues from license fees.

           FISCAL EFFECT  :    Appropriation:  Yes   Fiscal Com.:  Yes    
          Local:  No

          Appropriates $21,490,000

           SUPPORT  :   (Verified  6/30/10)

          Department of Justice (source)
          Department of Finance

           ASSEMBLY FLOOR  : 
          AYES:  Adams, Ammiano, Anderson, Arambula, Bass, Beall,  
            Bill Berryhill, Blakeslee, Block, Blumenfield, Bradford,  
            Brownley, Buchanan, Caballero, Charles Calderon, Carter,  
            Chesbro, Conway, Cook, Coto, Davis, De La Torre, De Leon,  
            DeVore, Emmerson, Eng, Evans, Feuer, Fletcher, Fong,  
            Fuentes, Fuller, Furutani, Gaines, Galgiani, Garrick,  
            Gilmore, Hagman, Hall, Harkey, Hayashi, Hernandez, Hill,  
            Huber, Huffman, Jeffries, Jones, Knight, Lieu, Logue,  
            Bonnie Lowenthal, Ma, Mendoza, Miller, Monning, Nava,  







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            Nestande, Niello, Norby, V. Manuel Perez, Portantino,  
            Ruskin, Salas, Saldana, Silva, Skinner, Smyth, Solorio,  
            Swanson, Torlakson, Torres, Torrico, Tran, Villines,  
            Yamada, John A. Perez
          NOES:  Nielsen
          NO VOTE RECORDED:  Tom Berryhill, Audra Strickland, Vacancy


          DLW:do  6/30/2010   Senate Floor Analyses 

                         SUPPORT/OPPOSITION:  SEE ABOVE

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