SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN DIEGO

Transcription

1 Chris A. Johnson (SBN ) Patrick J. Gregory (SBN 01) Rachael M. Weinfeld (SBN ) SHOOK, HARDY & BACON L.L.P. Bush Street, Suite 00 San Francisco, California - Telephone: (1) -100 Facsimile: (1) 1-01 Attorneys for Petitioner and Plaintiff KLAASKIDS FOUNDATION FOR CHILDREN, SUPERIOR COURT OF THE STATE OF CALIFORNIA Plaintiff/Petitioner, v. CALIFORNIA DEPARTMENT OF MENTAL HEALTH, STEPHEN W. MAYBERG, Director of the Department of Mental Health, and DOES 1-, Defendants/Respondents. FOR THE COUNTY OF SAN DIEGO Case No. VERIFIED PETITION FOR WRIT OF MANDATE/PROHIBITION AND COMPLAINT FOR INJUNCTIVE AND DECLARATORY Y v

2 Plaintiff/Petitioner alleges as follows: GENERAL ALLEGATIONS 1. In November 00, the California electorate voted to pass Jessica s Law (introduced as Proposition ), a landmark law designed to strengthen California s civil commitment program for sexually violent predators. On his website, the Governor calls the passage of the law a historic victory for the state of California, which has the highest population of sex offenders in the nation.. Jessica s Law indeed broadened the pool of potential sexually violent predators who could be eligible for civil commitment by 1) reducing the number from two to one of prior victims of sexually violent offenses, and ) making certain juvenile crimes count as a sexually violent offense under section 00. And the number of eligible predators did increase, e.g., in the year after Jessica s Law was enacted, the California Department of Corrections and Rehabilitation (CDRC) referred well over times the number of cases for review than it had in the previous year.. But Jessica s Law did not change the legally-mandated process leading up to civil commitment, especially as it pertains to certain responsibilities that the California Department of Mental Health (DMH) must, as a matter of law, perform. As described in more detail below, both before and after Jessica s law was passed, the law has required that, if an inmate has committed one of the law s enumerated offenses against one or more victims, then the CDCR must refer the inmate to the DMH, which in turn is required to conduct a full psychiatric evaluation by two qualified psychologists and/or psychiatrists.. The DMH, however, has and continues to unlawfully breach its legal duty and responsibility to conduct complete evaluations by two qualified psychologists and/or psychiatrists of potential sexually violent predators before those prisoners are released from prison. In the vast majority of cases, the DMH is simply conducting a cursory partial record review, euphemistically called a Level II screening, of potential Sexual Violent Predators (SVP) before they are allowed to be released back into the community. Not only do these practices by the DMH violate California law, but they greatly threaten and jeopardize the health and safety of all Californians (particularly all 1 Y v

3 Californian children) by resulting in the improper release of literally tens of thousands of potential sexually violent predators into the general public. interest.. The DMH s violations of the law undoubtedly raise issues of significant public Indeed, the safety of the State s citizens, particularly the safety of the State s most vulnerable citizens (its children) is a matter of paramount public concern.. This lawsuit is brought to require the DMH to comply with and perform its duties and obligations imposed upon it by the law. The Parties. Plaintiff/Petitioner KLAASKIDS FOUNDATION FOR CHILDREN is a non-profit foundation located in Sausalito, California. The Foundation s mission is to stop crimes against children. The President and Founder of KlaasKids is Marc Klaas, a citizen and taxpayer in the State of California.. Defendant/Respondent CALIFORNIA DEPARTMENT OF MENTAL HEALTH (DMH) is, and at all relevant times, was, the agency of the State of California charged by law and responsible for, inter alia, conducting the screening and evaluation of potential sexually violent predators. DMH repeatedly violated, and continues to violate, the law of California as further described herein.. Defendant/Respondent STEPHEN W. MAYBERG ( Mayberg ) is the Director of the DMH, sued herein in his official capacity. Because of his position at the DMH and/or because of his personal involvement in creating certain unlawful policies and practices described herein, Defendant/Respondent Mayberg is responsible for the violations of the law described herein.. Plaintiff/Petitioner is ignorant of the true names and capacities of Defendants/Respondents sued herein as DOES 1 through, and therefore sues these Defendants/Respondents by such fictitious names. Plaintiff/Petitioner will amend this Petition/ Complaint to state their true names and capacities once they have been ascertained. Plaintiff/Petitioner is informed and believes, and on that basis alleges, that each of these Defendants/Respondents is in some manner responsible for the acts complained of herein. v

4 // // Venue. Venue is proper in this Court because Plaintiff/Petitioner s causes of action arose in part in this county, and Defendants/Respondents have offices in this county. California s SVP Program Prior to Jessica s Law. Prior to Jessica s Law, California had a sexually violent predator (SVP) civil commitment program in place whereby the CDCR would refer potential predators who were completing their prison sentences to the DMH for screening and evaluation to determine whether they meet the criteria for an SVP.. Under the old law, a sexually violent predator was defined as someone who has been convicted of a sexually violent offense against two or more victims and who has a diagnosed mental disorder that makes the person a danger to the health and safety of others in that it is likely that he or she will engage in sexually violent criminal behavior. Cal. Welf. & Inst. Code 00(a) (00) (emphasis added) Prior to the release of an inmate who was serving a determinate prison sentence or parole revocation sentence, the CDCR would screen that individual to determine if the inmate was likely to be a sexually violent predator. The Department of Corrections and the Board of Prison Terms would base this screening on whether the person has committed a sexually violent predatory offense and on a review of the person s social, criminal, and institutional history. 01(b). 1. If the CDCR determined that an inmate was likely to be an SVP based on the screening, the Department of Corrections was required to refer the person to the State Department of Mental Health for a full evaluation of whether the person meets the criteria in Section 00. Id. (emphasis added). Essentially, if the inmate had committed one of the offenses enumerated in the statute, the CDCR would refer the inmate to DMH for a full psychiatric evaluation. 1 All references to the Welfare and Institution Code in this section, California s SVP Program Prior to Jessica s Law, are to the 00 version. v

5 Once referred for a psychiatric evaluation, DMH was required to evaluate the person in accordance with a standardized assessment protocol, developed and updated by the [Department], to determine whether the person is a sexually violent predator. 01(c). Further, the law required the inmate to be evaluated by two practicing psychiatrists or psychologists, or one practicing psychiatrist and one practicing psychologist. 01(d). As part of the protocol, this evaluation must include an assessment of diagnosable mental disorders, as well as various factors known to be associated with the risk of reoffense among sex offenders. 01 (c). In addition to reviewing the inmate s complete records, both professional evaluators must request and conduct an in-person examination of the potential SVP (if the offender is willing) before diagnosing the offender with a qualifying mental disorder (e.g., pedophilia or paraphilia). 1. If the two evaluators agree that the inmate had a diagnosable mental disorder and is likely to reoffend upon release, the Director of DMH must forward a request for civil commitment to the district attorney of the county where the inmate was convicted. 01(d), (i). If the two evaluators do not agree that the inmate qualifies as an SVP, the inmate must be evaluated by a second set of psychiatrists and/or psychologists who are not state government employees (i.e. independent professionals ). 01(g). Both of these independent professionals must find that the inmate meets the criteria for DMH to forward a civil commitment request. 01(g), (f). Jessica s Law Strengthened California s SVP Program 1. In November 00, 0% of the California electorate voted to pass Jessica s Law (introduced as Proposition ), a landmark law designed to strengthen California s civil commitment program for sexually violent predators. 1. Jessica s Law broadened the pool of potential sexually violent predators who could be eligible for civil commitment by 1) reducing the number from two to one of prior victims of sexually violent offenses, and ) making certain juvenile crimes count as a sexually violent offense under section 00. Cal. Welf. & Inst. Code 01(a)(1)-() (00). And the number of eligible predators did increase. In the year preceding Jessica s Law, from December 1, 00 to November 1, 00, the CDCR referred potential sexually violent predators to DMH for review in accordance v

6 with section 00. In the year after Jessica s Law was enacted, the CDCR referred, cases for review. This is more than had ever been referred by the CDCR in the ten years since California s SVP program s inception in Jessica s Law, however, made no changes to the process leading up to civil commitment under California Welfare and Institution Code 01. If an inmate had committed one of the enumerated offenses under the statute against one or more victims, the CDCR must still refer the inmate to DMH for a full psychiatric evaluation by two qualified psychologists and/or psychiatrists. See 01(b)-(d). DMH S Unlawful Cost-Saving Practices 1. DMH instituted illegal and unethical cost-saving practices that put Californians at risk all for the sake of economic expediency. The first of these practices is known as a Level II paper screen.. Prior to release, the CDCR must review each offender s file to identify if they meet the statutory predicates as a potential SVP under a screening instrument developed by the DMH. If the offender meets those criteria, the CDCR must refer the case to the DMH for a full evaluation. The requirements for a full evaluation are articulated in paragraphs 1 and 1 above.. The DMH has implemented a policy under which all inmates found to be potential SVPs must then go through an additional, intermediate level of review termed a Level II screening in lieu of a full, in-person evaluation. Under this Level II screening protocol, only a single evaluator reviews the limited records received from the CDCR and makes a prediction of whether the inmate would likely satisfy the criteria of an SVP under the statute. If the single evaluator finds that based on his limited review, the inmate would not likely qualify as an SVP, DMH clears the inmate for release. Currently, the vast majority of potential SVPs are released after this intermediate Level II screening, without ever having a full evaluation as mandated under section 01.. Jessica s Law does not authorize DMH to conduct intermediate level paper screens of potential SVPs once the CDCR refers the inmate for a full evaluation. Furthermore, DMH s v

7 standard assessment protocol, the one required under section 01, does not even mention, or provide guidelines for, the Level II screening.. Allowing the release of a potential SVP after a Level II paper screen is initially much less expensive to the agency than having to conduct a full evaluation by two trained evaluators as mandated under the law. This initial cost-savings has led to the unlawful release of thousands of potential sexually violent predators.. According to the statistics reported on DMH s website as of July, 0, the CDCR referred, potential SVPs to DMH for full evaluations since Jessica s Law came into effect. Only,0 of those referred underwent a full evaluation. That means that more than % (,1) of all offenders flagged as potential sexual violent predators were paper screened out of the Sexual Offender Commitment Program (SOCP), never receiving a full evaluation. In fact, each year fewer cases make it past DMH s Level II screen, and according to the latest statistics, an outrageous % were screened out of the system over the past eight months. To put this in very real terms, the DMH has allowed the release of more than,1 sexual criminals into our communities without the complete risk evaluations mandated by Jessica s Law.. The Level II paper screens drastically reduce the number of potential predators referred for in-person psychological and psychiatric evaluations by trained experts. This unlawful practice, which has been going on since Jessica s Law was enacted, has resulted in harm, including horrific crimes and loss of life to untold victims. This is because many offenders who are unlawfully paper screened and released end up back in the SOCP for reoffending. These inmates are known as Recycles under DMH parlance.. One such Recycle is Gilton Pitre, a rapist convicted for having chained and sexually assaulting his victim. In 00, he was deemed clear for release under the current DMH paper screening. Only four days after his release from prison, Pitre brutally raped and ruthlessly murdered 1 year-old Alyssa Gomez, whose lifeless body was found callously left near a dumpster wrapped in a blanket. Pitre is now serving a life sentence for that rape and murder. v

8 On information and belief, Gilton Pitre certainly is not the only example of a paper screened Recycle who, once released, go on to commit horrific crimes in our community. (a) Mr. W was arrested in 1 and charged with five counts of lewd and lascivious acts under California Penal Code (a) with a four year-old female over a nine-month period and convicted of one sexual violation. He came in and out of the system on other parole violations. In 1, he violated his parole by digital penetration of a two year-old. He was paper screened by DMH and cleared for release in late 00. In late 00, he attempted to rape of a seventeen year-old and returned to custody for a parole violation. (b) In 1, Mr. X forced a twelve year-old girl to have sex with him at least five times, including oral sex and sodomy. He had a history of being in and out of prison for many types of crimes including drugs, domestic violence and multiple parole violations. He was paper screened by DMH and cleared for release in late 00. He was released from prison in mid 00 and one month later raped, sodomized and orally copulated a fourteen year-old over period of two to three weeks, apparently starting just after his last release. (c) Mr. Y had sexually assaulted a nine year-old girl multiple times and served a prison term for this offense. By the beginning of 00, he established a relationship with a woman with a seven year old daughter. He then sexually molested this child over several months until his arrest in late 00 on a parole violation. (d) Mr. Z was serving time for sexually assaulting an eleven year-old girl in 00 whom he stalked. He was paper screened by DMH and cleared for release in late 00. He was arrested for the rape of a female nine months after his release. 0. In addition to the paper screens, DMH has further violated the letter and spirit of Jessica s Law by implementing another putative cost-saving measure a new low-bid contract process that favors the least experienced evaluators and strongly incentivizes no referrals for commitment proceedings. v

9 In past years the DMH had an outcome-neutral contract system under which cases were assigned to a core group of competent and experienced evaluators with national reputations as experts in sexual recidivism. In clear violation of the purpose and spirit of the law, DMH has now adopted a system whereby all SVP evaluations are granted to the lowest bidders that has highly biased the overall evaluation program toward release instead of referral for commitment.. Under the new low-bid contract system, evaluators are required to bid a flat fee for initial evaluations of potential SVPs, follow-up evaluations, trial testimony (in case the inmate is referred to the district attorney for a civil commitment proceeding), and other items. Experienced evaluators expect to find some portion of potential SVPs positive after an honest and complete evaluation and accordingly must bid a reasonable cost of having to prepare for trial, travel to the trial site, and spend time testifying.. Some evaluators, however, have underbid the more experienced evaluators by bidding a lower cost for the evaluation process (knowing full well that a majority of SVPs will be screened out at Level II and will not proceed to a full evaluation) and zero for trial testimony. These low bidders are then financially incentivized to conduct brief and superficial evaluations and never refer a potential sexually violent predator for civil commitment. This low bid system also highly favors those evaluators who know or strongly suspect they will not be finding potential SVPs positive for whatever reason (e.g., philosophically, fear of cross-examination) during that contract period. Under this system, the vast majority of SVP cases are sent to low bid evaluators, who tend to be less experienced, resulting in much lower rates of referrals for civil commitment. Experienced evaluators are therefore punished under this new bid system and discriminated against in the assignment of cases.. On information and belief, the DMH also improperly manipulated the bidding process even while implementing this low-bid system. The DMH improperly rejected all evaluators initial bids on the grounds that it did not receive enough bids, revealed the initial bid amounts to the other bidding evaluators, and instructed them then do it all over again. Prior to the second round of bidding, DMH lowered the qualifications required to bid so that the pool would include a large v

10 number of novice evaluators. This resulted in a flawed bid process, decreased referrals, and improper punishment of honest evaluators who would continue to identify positive cases.. This newly-implemented contract system is not outcome neutral as declining referral rates clearly demonstrate. This contract bidding process complies with neither the letter nor the spirit of the law, which requires a full evaluation of whether potential SVPs meet various criteria. FIRST CAUSE OF ACTION (Declaratory Relief under C.C.P. 0). Plaintiff/Petitioner hereby incorporates by reference all of the foregoing paragraphs as though fully set forth herein.. Defendants/Respondents, and each of them, were responsible for the acts or omissions complained of herein.. Defendants/Respondents are legally required to provide a full psychiatric evaluation of SVPs by two qualified psychologists and/or psychiatrists, but they have repeatedly failed to provide such evaluations, and they continue to provide unlawful evaluations.. A declaration of law is necessary in this case to prevent Defendants/Respondents from further violations of the law. 0. Plaintiff/Petitioner has a clear, present, and beneficial right to Defendants/Respondents complying with the laws pertaining to the evaluation and possible release of potential SVPs in the custody of the CDCR. In addition, this right is a matter of significant public interest and as such can be enforced by any individual or public entity. 1. Plaintiff/Petitioner seeks a declaration that the aforementioned actions, policies, and practices of Defendants/Respondents are unlawful and/or without legal authority. WHEREFORE, Plaintiff/Petitioner prays for the relief set forth below. SECOND CAUSE OF ACTION (Injunctive Relief). Plaintiff/Petitioner hereby incorporates by reference all of the foregoing paragraphs as though fully set forth herein. v

11 1. Defendants/Respondents, and each of them, were responsible for the acts or omissions complained of herein.. For any case in which an inmate has committed one of the enumerated offenses under the statute against one or more victims, the DMH must conduct a full psychiatric evaluation by two qualified psychologists and/or psychiatrists. See Cal. Welf. & Inst. Code 01(b)-(d).. Defendant/Respondents have repeatedly violated, and continues to violate, this law as well as frustrated the intent of the California voters to keep SVPs incarcerated.. Plaintiff/Petitioner and the public would suffer great and irreparable injury if Defendants/Respondents were allowed to continue to violate the law as set forth herein.. As a result, Plaintiff/Petitioner requests that this Court enjoin Respondents/Defendants from violating this law and from engaging or promulgating any practices or policies that circumvent the law s full evaluation requirement. WHEREFORE, Plaintiff/Petitioner prays for the relief set forth below THIRD CAUSE OF ACTION (Writ of Mandate under C.C.P. ). Plaintiff/Petitioner hereby incorporates by reference all of the foregoing paragraphs as though fully set forth herein.. Defendants/Respondents, and each of them, were responsible for the acts or omissions complained of herein. 0. Cal. Welf. & Inst. Code 01 et seq. and related provisions impose a clear and present duty that, for any case in which an inmate has committed one of the enumerated offenses under the statute against one or more victims, the DMH must conduct a full psychiatric evaluation by two qualified psychologists and/or psychiatrists. 1. Plaintiff/Petitioner has a clear, present, and beneficial right to Defendants/Respondents complying with the laws pertaining to the evaluation and possible release of potential SVPs in the custody of the CDCR. In addition, this right is a matter of significant public interest and as such can be enforced by any individual or public entity. v

12 At all times mentioned herein, Defendants/Respondents have been able to perform their duties described above. Notwithstanding such ability, Defendants/Respondents fail and refuse, and continue to fail and refuse, to perform their duties under the law.. Plaintiff/Petitioner and the public have no plain, speedy, and adequate remedy in the ordinary course of law other than the relief sought in this action. Therefore, Plaintiff/Petitioner seeks a peremptory writ of mandate compelling all Defendants/Respondents to comply with their mandatory duties under Cal. Welf. & Inst. Code 01 et seq. and related provisions. WHEREFORE, Plaintiff/Petitioner prays for the relief set forth below. PRAYER FOR WHEREFORE, Plaintiff/Petitioner prays that judgment be entered against Defendants/Respondents and each of them as follows: 1. A declaration that Defendants/Respondents conduct as described herein violates Cal. Welf. & Inst. Code 01 et seq. and related provisions;. An injunction ordering Defendants/Respondents to cease and desist from conducting evaluations and hiring and assigning evaluators in violation of Cal. Welf. & Inst. Code 01 et seq. and related provisions;. A Writ of Mandate compelling Defendants/Respondents to comply with the legal requirements set forth in Cal. Welf. & Inst. Code 01 et seq. and related provisions;. For an Order requiring Defendants/Respondents to show why they should not be enjoined hereinafter during the pendency of this action for the same injunctive relief contained in the temporary restraining order described below;. For a Temporary Restraining Order, a Preliminary Injunction, and a Permanent Injunction enjoining all Defendants/Respondents from conducting any evaluation under Cal. Welf. & Inst. Code 01 et seq. of a potential SVP (a) by less than two qualified psychologists and/or psychiatrists and/or (b) as a result of the DMH s current low bidder practice set forth above;. A judgment embodying the foregoing and awarding Plaintiff/Petitioner its costs of suit and any reasonable attorney s fees allowable by law; and v

13 . Further relief the Court deems proper DATED: September, 0 SHOOK, HARDY & BACON L.L.P. By: CHRIS A. JOHNSON PATRICK J. GREGORY RACHAEL M. WEINFELD Attorneys for Plaintiff/Petitioner v

14 VERIFICATION I, Marc Klaas, am founder of KlaasKids Foundation, Plaintiff in this action, and am authorized to make this verification on its behalf. I have read the foregoing Writ of Mandate and Complaint and know its contents. I am informed and believe and on that ground allege that the matters stated in the Writ of Mandate and Complaint are true. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on this th day of September, 0, at Sausalito, California. MARC KLAAS v