BILL ANALYSIS
AB 1714
Page 1
( Without Reference to File )
CONCURRENCE IN SENATE AMENDMENTS
AB 1714 (Fuentes)
As Amended June 30, 2010
2/3 vote. Urgency
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|ASSEMBLY: |76-1 |(June 1, 2010) |SENATE: |30-1 |(July 1, 2010) |
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Original Committee Reference: APPR.
SUMMARY : Appropriates $21,490,000 from the General Fund (GF) to
the Department of Justice (DOJ) to pay settlements in Humphries
v Lockyer, et al ($536,000), Gardner, et al, v Schwarzenegger,
et al ($562,000), Berg v. California Horse Racing Board
($392,000) and Jaycee Lee Dugard, et al ($20,000,000). Any
funds appropriated in excess of the amount required for the
payment of these claims shall revert to the GF.
The Senate amendments add appropriations for two new
settlements: Berg v. California Horse Racing Board ($392,000)
and Jaycee Lee Dugard, et al ($20,000,000).
AS PASSED BY THE ASSEMBLY , this bill appropriated funds for two
settlements: Humphries v Lockyer, et al ($536,000) and Gardner,
et al, v Schwarzenegger, et al ($562,000),
FISCAL EFFECT : This bill appropriates $21,490,000 (GF) to pay
for four settlements, and specifies that any funds appropriated
in excess of the amount required will revert to the GF.
COMMENTS :
1)Rationale . This bill is one of two annual bills carried by
the Appropriations chairs to provide appropriation authority
for state judgments and settlements as approved by the DOJ and
the Department of Finance (DOF).
2)Case background .
a) Humphries v. Lockyer, et al, Ninth Circuit Court of
Appeals Case No. 05-56467 - $536,000
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Craig and Wendy Humphries were arrested on suspicion of
physically abusing 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 L.A. Sheriff's Department
reported the couple to DOJ's Child Abuse Central Index
(CACI). CANRA requires such 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 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 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 decided the claim was not premature, and
referred it to an Appellate Commissioner. In that
proceeding, the commissioner recommended the Humphries be
awarded the $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. Including anticipated interest, it is
projected that the amount due the Humphries under this
appellate attorney fee decision will be $536,000.
b) Gardner, et al, v. Schwarzenegger, et al, First District
Court of Appeal Case No. 125000 - $562,000
The Substance Abuse and Crime Prevention Act of 2000 was
enacted by the voters as Proposition 36 in 2000. It
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diverted certain nonviolent drug offenders to noncustodial
drug counseling and treatment in lieu of incarceration. In
2006, SB 1137, Chapter 63, authorized jail sanctions when
nonviolent drug offenders violate conditions of Proposition
36 probation. SB 1137 also specified 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 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 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 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 pursued a claim for fees
incurred from litigating the underlying fee question itself
-- a fees on fees claim. This resulted in an additional
$83,834, plus interest. DOF has requested the total amount
of $562,000.00 for the underlying fee award, settlement of
the fees-on-fees claim, and accrued interest.
c) Berg v. California Horse Racing Board, Superior Court of
California, Sacramento County - $392,000
Pamela A. Berg worked as a horse racing steward for the
California Horse Racing Board (board) from 1998 to 2006.
Berg filed a lawsuit alleging discrimination and harassment
based on age and gender, and for retaliation, in violation
of the Fair Employment and Housing Act (FEHA). Berg alleged
board superiors gave improper preferences to less-
qualified male stewards when making assignments to
California's larger race tracks. Berg also claimed the
board's failure to make such assignments, to honor her
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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 settled. Berg will receive $400,000, of which
$100,000 will be in the form of a 10-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.
d) Jaycee Lee Dugard, et al, mediated settlement agreement
- $20,000,000
Jaycee Lee Dugard was 11 years old when she was kidnapped in
1991 near her home in SouthLake Tahoe by Phillip Garrido
and his wife, Nancy Garrido. Ms. Dugard was transported to
the Garridos' home in Antioch, California and hidden in a
makeshift shed in their backyard, where she was repeatedly
raped over the course of years. Ms. Dugard gave birth to
two daughters, one in August 1994 and one in November 1997,
both fathered by Garrido. Ms. Dugard and her daughters
were hidden in this shed with minimal access to medical
services, education, or social contact, for 18 years. In
August 2009, while Garrido was supervised by California
parole authorities, an investigation by state parole and
local law enforcement led to the arrest of Phillip and
Nancy Garrido, the discovery of Ms. Dugard's identity, and
the reunion of Ms. Dugard and her daughters with their
family.
In 1977, Garrido was convicted in state and federal court for
kidnapping and raping a 25-year-old woman. A federal court
sentenced him to 50 years for kidnapping, while a Nevada
court imposed a five-years-to-life term for forcible rape.
In January 1988, after serving 11 years of a federal
sentence, the federal government paroled Garrido and
released him to Nevada authorities to serve his sentence.
Seven months later, Nevada paroled Garrido, returning him
to federal parole authorities to serve the remainder of his
federal parole term. In 1999, Garrido was discharged from
federal parole and returned to the jurisdiction of Nevada
parole. Under terms of an interstate parole compact, CDCR
assumed parole supervision because Garrido lived in
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Antioch, California.
Through her attorneys, Ms. Dugard and her daughters filed
claims with the California Victim Compensation and
Government Claims Board. Those claims were held in
abeyance pending the outcome of mediation. Ms. Dugard's
attorneys asserted potential claims for 1) failure to
discharge a mandatory duty; 2) negligence; 3) negligent
hiring, training, retention, and supervision; and, 4)
infliction of emotional distress.
i) Failure to discharge a mandatory duty : Plaintiffs
support this claim by alleging defendants failed to give
Garrido a high control parole classification; failed to
refer Garrido for a mental health assessment; failed to
investigate a suspected parole violation; and failed to
electronically monitor Garrido.
ii) Negligence : Plaintiffs assert the exercise of
parole functions, and the supervision of parole
functions, was negligent. Plaintiffs allege
discretionary immunity would not apply because the acts
and omissions related to operational and low-level
ministerial tasks. That claim is supported by the
allegations described above, and that as a result parole
agents failed to locate the backyard shed.
iii) Negligent Hiring, Training, Retention, and
Supervision : This allegation is supported by the
circumstances referenced above.
iv) Intentional Infliction of Emotional Distress :
Plaintiffs assert a claim for Intentional Infliction of
Emotional Distress, which has three elements: 1) extreme
and outrageous conduct by the defendant with the
intention of causing emotional distress; 2) the plaintiff
suffered extreme emotional distress; and, 3) plaintiffs'
injuries were caused by the defendant's conduct. To
satisfy the first element, the alleged conduct must
exceed all bounds of behavior usually tolerated in a
civilized community.
Following review of the allegations, CDCR, through counsel,
agreed to submit the Dugard claims to mediation for a
recommended resolution. On June 24, 2010, the matter as
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mediated before retired judge Daniel Weinstein of JAMS, an
established mediation ad arbitration service.
CDCR denies the specific allegations made in the Dugard
claims, yet acknowledges it missed opportunities to identify
Ms. Dugard, as documented in the Inspector General's November
2009 report, which concluded CDCR failed to properly supervise
and classify Garrido and thus failed to locate the victims.
According to DOJ attorneys, while CDCR is legally protected by
well-established immunities, DOJ recognizes this case has a
unique and tragic character. Although defendant's chances of
prevailing on parts of a dispositive motion, DOJ states a
potential damages award by a jury could be extremely high.
DOJ states the settlement posture was guided by several
considerations. First, it is a virtual certainty Ms. Dugard
and her daughters will require counseling for the rest of
their lives. Second, Ms. Dugard's daughters have received no
formal education, and neither is currently equipped to handle
the academic or social challenges that school - and society -
will pose, nor has Ms. Dugard received any education since her
abduction. In addition, the plaintiffs have received minimal,
if any, medical care for years.
CDCR, through DOJ, has stipulated to settle the claims of Ms.
Dugard and her two children for the total sum of $20 million.
DOF has approved the expenditure.
3) Related legislation . SB 911 (Kehoe), Chapter 26, Statutes
of 2010 provides for the
appropriation of funds for state judgments and
settlements.
Analysis Prepared by : Geoff Long / APPR. / (916) 319-2081
FN: 0005118