This has to do with an appeal regarding placement of a lvl 1 inmate in a lvl 2 yard. A counselor is defending this placement by offering two 'explanations'

1. the particular facility is considered by Sacramento to be a 'merged yard'
2. the facility has received an override to place lvl 1 inmates in this lvl 2 yard.

I have searched title 15, and CDCR DoM for any reference to this particular facility receiving authorization to do this, and cannot find any. I can also find no reference or definition of a 'merged yard' in DOM or Title 15.

Just for clarification, the inmate is aware that CDCR can use overcrowding to override a placement and was specifically told NO, again the CCII referenced the 2 reasons I posted above for not allowing the inmate to transfer.

Would this be considered an underground regulation? Is it something that should be appealed through OAL?

Can I legally request written documentation of this rule on behalf of the inmate? should I request it through the facility or through Sacramento?

Thanks in advance!

As I don't know the specific circumstances of your situation I did find general information in Title 15 Article 10 Section 3375.2 about placement and reasons why someone can be placed on a high level yard than what their points determine them to be. You mentioned you already searched Title 15 and DOM however I wasn't sure if you read this Section or not. I will continue to search for additional information that pertains to your situation. :)

I did read that, so did he.. He made a reception counselor angry because he wrote to a CCII to find out why there was such a long delay in his being classified (big mistake I know, and he regrets it) His counselor came in the next day raging mad and said "you are lvl 1 with 15 points but I am going to find a way to send you to a lvl 2 facility".

Within a week he left reception and was sent to a lvl 2 yard. When he went to committee, he figured it would be easy to straighten out and get a transfer to camp or a minimum security facility - WRONG!

In committee he is told that it doesn't matter why he was sent there, he can't transfer, when he asked for a reason the said he had a medical chrono- (it was actually and expired light duty note from reception that he got because of a sore knee)

He went to medical, and got a full medical clearance and appealed the placement, he had to file 2 or 3 602s just to get a response. Finally the counselor calls him in to 'talk about the 602' To make a long story short, she said he cannot transfer, that he will stay where he is, that the medical clearance did not change a thing. He asked if there were any administrative determinants they said no, he asked why he could not transfer and he was told:

"we have permission from Sacramento to house lvl 1 inmates here, it is an override". He asked what section of 115 gave them that authority and he was given a slightly different explanation & was told that: "sacramento said this is a 'merged yard'.

I think the only chance he has to appeal this is on the basis that they have an 'underground regulation' which conflicts with both DOM and title 15, so I want to help him by making them produce the documents that they are alleging gives them the authority to override a classification score

While working at CCC, I know the Warden received permission from CDCR Director via a letter to house level I and level II inmates on their Level I Cascade Yard and Level II Sierra Yard. They in effect merged their yards. Since the yards were identical in design and staffing, the policy change allowed staff the freedom to house the inmates on either yard without having to get CSR approval to do so.

It would appear a CSR approved his move from Reception to a level II yard. That action would require the CSR to list an "Administrative Placement" reason, in effect why he was given an override to level II.

The reason the reception counselor gave was that he 'could not determine whether or not a 19 year old burglary involved violence' I found out from his current counselor that there was no violence and he was reading that off of the same archived file that the reception counselor had access to, he stated that the reception counselor was either mistaken, or only looked at the rap sheet and not the archived file.

He thought that during classification that would resolve the issue and he would be eligible for transfer, the committee admitted that there were NO administrative determinants, but said he could not transfer because of a 'medical chrono' He cleared the medical and was told 'that's tough, we don't care..you aren't going anywhere'..with the reason given that Sacramento had given them this 'override' or whatever.... (interesting that they relied on the medical chrono for a justification first, then went to their 'letter from Sacramento excuse, isn't it?)

I know that DOM chapter 6 allows for an override for lvl 2 down to a lvl 1 facility, but I can see nothing in DOM or Title 15 that allows for an adverse override for a minimum b level 1 to placement in either a secure lvl 1 yard or a lvl 2 yard.

So, I guess my question is- is calling a lvl 2 yard even if Sacramento issued a memo, justification for overriding title 15 and DOM classification guidelines? And if so, then what would prevent a warden from just having ONE yard and merging lvls 1-4 into that yard? Wouldn't such a memo be an illegal 'underground rule'?

CDCR generates thousands of memos changing institution missions and policies on a regular basis. It is just doing business, not implementing underground regulations.

Wow! If you wouldn't mind offering more details about this, I'd really like to know. I'm not trying to pry, but how did that happen?:confused:

Try calling Suzan Hubbard's office. I've had great luck working with the people there. They should be able to explain everything.

CDCR Division of Adult Institutions
Attn: Suzan Hubbard
P. O. Box 942883
Sacramento CA. 94283
(916) 445-7688
FAX: 916-322-2877

thanks I will do that

Filing an appeal with the Office of Administrative Law (OAL) for a determination that a regulation is "underground" can be a lengthy process. First you formally request the OAL to make a determination, and then wait until they get to it. It used to take up to two years (they even suspended making determinations from 2003-2005). Then if the OAL finds that the regulation is a "standard of general application," but was not adopted by the CDCR pursuant to the CA Administrative Procedures Act (hence an "underground" regulation), the OAL will rule in your favor.

The CDCR is then supposed to cease using the regulation, but if they choose to keep using it (imagine that), you would have to file a petition for a writ of mandate in the Superior Court. Then if you win in court, the CDCR can appeal the decision to the Court of Appeals. Then if you again win there, the CDCR could try to appeal to the CA Supreme Court, and/or cease using the regulation. But the CDCR could just adopt it as an "emergency" regulation and incorporate it into Title 15. Then you could challenge the regulation in the Superior court, and start the process again.

The one benefit however, is that you really get to learn a lot about using all facets of the CA administrative and judicial process, but by the time you're done, five years have gone by, and your son is long out of the CDCR (hopefully).

South Bay

Filing an appeal with the Office of Administrative Law (OAL) for a determination that a regulation is "underground" can be a lengthy process. First you formally request the OAL to make a determination, and then wait until they get to it. It used to take up to two years (they even suspended making determinations from 2003-2005). Then if the OAL finds that the regulation is a "standard of general application," but was not adopted by the CDCR pursuant to the CA Administrative Procedures Act (hence an "underground" regulation), the OAL will rule in your favor.

The CDCR is then supposed to cease using the regulation, but if they choose to keep using it (imagine that), you would have to file a petition for a writ of mandate in the Superior Court. Then if you win in court, the CDCR can appeal the decision to the Court of Appeals. Then if you again win there, the CDCR could try to appeal to the CA Supreme Court, and/or cease using the regulation. But the CDCR could just adopt it as an "emergency" regulation and incorporate it into Title 15. Then you could challenge the regulation in the Superior court, and start the process again.

The one benefit however, is that you really get to learn a lot about using all facets of the CA administrative and judicial process, but by the time you're done, five years have gone by, and your son is long out of the CDCR (hopefully).

South Bay
Well stated, which is precisely why they have all these underground regulations as they know that the process is so tough to challenge them that few people will bother. It has become a matter of principle to me at this point- I worked in law enforcement for 22 years, in two different agencies, the entire time I followed rules that were clearly spelled out and were available to the public, we did not make up rules as we went along. The things that CDCR does and gets away with just disgusts me.
I have obtained three memos that CDCR cannot state are 'local rules' as they apply to inmates in reception centers who are sent to SATF, one of which states that the facility can house level I, II, and III together; and that level III inmates can be in the facility for 30 days before being screened for suitability. Another states that level II lifers are allowed even though the third memo states that no inmate should be housed there with more than 36 months left on their sentence.

2sleepy, have you searched the OAL site to see if this is already litigated? For example, this from a 1987 determination:

. . . rules and regulations for the administration of the prisons."/35 This Request focuses on one specific aspect of "custody" and of "admin is tr a t ion" : the criteria and procedures used in "classification" of prisoners. The classification process involves the balancing of two significant public interests: (1) the need to protect the general public, departmental staff and other prisoners from inmates who are prone to violence or likely to attempt escape or both; and (2) the need to control expenditure of public funds by minimizing the number of inmates who are confined in maximum-security, intensively supervised environments. Reflecting this latter concern, the Legislature, in enabling legislation providing for construction of new prisons, declared its intent that "the department house each inmate at the lowest custody level consistent with his or her classification . . . .( PDF (http://www.oal.ca.gov/pdfs/determinations/2000_and_Prior/1987_OAL_Determination_No._3.pdf))

The above pdf does offer a good historical overview and found the classification manual is regulatory subject to the APA. Things change though and maybe subsequent adopted regulations prevail. You would know better what key words to search (http://www.oal.ca.gov/) for.

2sleepy, have you searched the OAL site to see if this is already litigated? For example, this from a 1987 determination:

. . . rules and regulations for the administration of the prisons."/35 This Request focuses on one specific aspect of "custody" and of "admin is tr a t ion" : the criteria and procedures used in "classification" of prisoners. The classification process involves the balancing of two significant public interests: (1) the need to protect the general public, departmental staff and other prisoners from inmates who are prone to violence or likely to attempt escape or both; and (2) the need to control expenditure of public funds by minimizing the number of inmates who are confined in maximum-security, intensively supervised environments. Reflecting this latter concern, the Legislature, in enabling legislation providing for construction of new prisons, declared its intent that "the department house each inmate at the lowest custody level consistent with his or her classification . . . .( PDF (http://www.oal.ca.gov/pdfs/determinations/2000_and_Prior/1987_OAL_Determination_No._3.pdf))

The above pdf does offer a good historical overview and found the classification manual is regulatory subject to the APA. Things change though and maybe subsequent adopted regulations prevail. You would know better what key words to search (http://www.oal.ca.gov/) for.
Thanks for posting that, I had not seen it, but I have looked at other OAL decisions relating to classification, generally it appears that rules that apply only to a particular facility are permitted as 'local rules'. i.e. a facility makes a rule not permitting inmates to have TV sets, but a classification issue, when it extends to reception centers, as in the case of inmates being placed in a facility that is a higher security level than their classification would indicate is not legal and is considered an 'underground regulation'. One person told me that the 'mixed classifications' in SATF might be due to a 'federal rule' since the SAP program is federally funded, but I can't find anything in writing to prove or disprove that.

Odder yet is that in late 2005, all level one inmates were moved out of SATF F&G yard by an 'edict' from Sacramento; I filed a public records request specifically asking for the details of that, and for any documents that subsequently altered that policy and allowed them to place level I inmates in SATF after that occured- I received nothing relevant to that.

More irritating than anything else is that getting information from anyone in CDCR is just horrible, they will 'okey doke' you with 'non-answers' as long as they can. My son has about 10 months left to serve, no doubt he will parole before anything can be done about the situation that I have mentioned, but in my opinion, this has taken on greater significance in terms of the implications of this to all inmates. Does what is happening in SATF (mixing levels I-III inmates) indicate a move toward CDCR abandoning the classification model altogether? How long will it be before all inmates are placed in a facility that mixes inmates of level I through level IV and subjects them all to the security restrictions of a level IV facility? The future for level one and level two inmates being able to enjoy a bit more freedom and privilege is in peril because of this, and I don't think it should be allowed. I will probably be fighting this battle long after my son is paroled, but that's ok- I am not going to sit back and let CDCR just ignore rules and do whatever they want because they think they are dealing with a population that can't object to what they do.

The controlling law that looks like it is still good law is Stoneham v. Rushen (Stoneham I) (1982) 137 Cal.App.3d 729, 188 Cal.Rptr. 130 (rules governing state prison inmate classification do not fall within "internal management" exemption of APA because the rules were of general application significantly affecting the male prison population).

Interestingly, it is cited in the OAL's What is a Regulation (http://www.oal.ca.gov/pdfs/What_Is_a_Regulation.pdf)? (pdf, part 3)

The controlling law that looks like it is still good law is Stoneham v. Rushen (Stoneham I) (1982) 137 Cal.App.3d 729, 188 Cal.Rptr. 130 (rules governing state prison inmate classification do not fall within "internal management" exemption of APA because the rules were of general application significantly affecting the male prison population).

Interestingly, it is cited in the OAL's What is a Regulation (http://www.oal.ca.gov/pdfs/What_Is_a_Regulation.pdf)? (pdf, part 3)

Thanks for finding that- but if the facility is still relying on 'memo's' to justify out-of-level placements; where can I go with that ? to the OAL? filing a 602 is just stupid- they just okey doke it- say 'you are eligible for a transfer to a minimum security facility however we only consider transfer requests at annual review'

2sleepy, I'm not a lawyer and really don't know much about this other than what was found in the searches, but the OAL has good directions on how to proceed. Send them the copies of the memos and file the Optional Petition Submission Form (pdf) and they will investigate. The beauty of the procedure is that it doesn't take a lot of money or law knowledge to proceed. You do need to back it up with statutes and case law though. The CDCr could have an out by it being local policy, I don't know. It will take some research,

FYI, if you check the links at the out of state transfer post I posted on proposed regulations, the overview link also mentions regulations to "clarify the ability of staff to comply with the CDCR objective of housing inmates in the least restrictive security level commensurate with an inmate’s need for supervision while at the same time address the security needs of those inmates who are transferred to and housed in a COCF."

Maybe one of the CO's here can help.

2sleepy, I'm not a lawyer and really don't know much about this other than what was found in the searches, but the OAL has good directions on how to proceed. Send them the copies of the memos and file the Optional Petition Submission Form (pdf) and they will investigate. The beauty of the procedure is that it doesn't take a lot of money or law knowledge to proceed. You do need to back it up with statutes and case law though. The CDCr could have an out by it being local policy, I don't know. It will take some research, for example I just found Penal Code section 5068 that may help.

FYI, if you check the links at the out of state transfer post I posted on proposed regulations, the overview link also mentions regulations to "clarify the ability of staff to comply with the CDCR objective of housing inmates in the least restrictive security level commensurate with an inmate’s need for supervision while at the same time address the security needs of those inmates who are transferred to and housed in a COCF."

Maybe one of the CO's here can help.

2sleepy, I'm not a lawyer and really don't know much about this other than what was found in the searches, but the OAL has good directions on how to proceed. Send them the copies of the memos and file the Optional Petition Submission Form (pdf) and they will investigate. The beauty of the procedure is that it doesn't take a lot of money or law knowledge to proceed. You do need to back it up with statutes and case law though. The CDCr could have an out by it being local policy, I don't know. It will take some research, for example I just found Penal Code section 5068 that may help.

FYI, if you check the links at the out of state transfer post I posted on proposed regulations, the overview link also mentions regulations to "clarify the ability of staff to comply with the CDCR objective of housing inmates in the least restrictive security level commensurate with an inmate’s need for supervision while at the same time address the security needs of those inmates who are transferred to and housed in a COCF."

Maybe one of the CO's here can help.
I sent the memos and all the other info to the prison law office, I don't think they will take on the case since it would probably be perceived as 'not as serious' as some of the others that they are working on, but I asked them to advise me on the best way to proceed. If I don't hear back within a week I will file with the OAL and see how that goes.

In 1991, CDC prisoner Charles Tooma decided to settle the issue of “underground regulations” once and for all by challenging the entire 8-volume 3,000+ page “Department Operations Manual” (DOM), by filing a petition for a writ of mandate in the Superior Court. He won there, and after the CDC appealed the decision, he won again in the Court of Appeal.

In Tooma v Rowland (#FO15383), the Fifth District Court of Appeal ordered the CDC to cease enforcement of the regulatory portions of the DOM. In the case, the CDC conceded that "much" of the DOM violated the Administrative Procedure Act (APA); the court found that "a substantial part" was regulatory.

The CDC responded to the Tooma decision by issuing a bulletin stating that parts of the DOM could not be used until adopted pursuant to the APA. CDC Administrative Bulletin # 9212, issued January 7, 1992, provided in part:

"The purpose of this bulletin is to notify staff and inmates that the Department Operations Manual (DOM) is still in effect. However, as result of a recent court decision, some sections of DOM may not be used until they are processed pursuant to the Administrative Procedure Act (APA).”

"Attached is a list of those DOM sections which the Department may use at this time. As the unlisted DOM sections are processed pursuant to the APA, they shall be added to the list and the updated list will be distributed. It is anticipated that processing of all the unlisted DOM sections will be completed by June 1993.” [Bold emphasis added.]

"Until the unlisted DOM sections are processed, each institution and parole region shall independently implement local procedures in accordance with all applicable laws and regulations to govern those policies and procedures which are not covered by a listed DOM section."

So Tooma had gone way above the administrative level at which the OAL operates and got the Court of Appeal to rule most of the DOM illegal; yet 17 years later the new and improved CDCR is still illegally relying on the DOM and other underground regulations and memorandums for administering its prisons.

Had the CDCR actually adopted the DOM and other regulations pursuant to the APA, they would all have been incorporated (or rejected) into Title 15 after the required public comment period and discussion as provided by law. To date, this has not been done.

In a 2007 Determination (#3) about the DOM (which wouldn’t have been required had the CDCR complied with the Tooma decision) the OAL found that the CDCR had illegally adopted into DOM section 54030 an underground regulation concerning inmate personal property, echoing a 1998 Determination (#38) in which the OAL found that the CDC had illegally adopted into DOM section 54030 an underground regulation concerning inmate personal property ("like deja vu all over again" - credit to Yogi Berra).

A reasonable person might have thought that the 1991 Court decision would have spurred the CDC to obey the law, or that the 1998 Determination, or the 2007 Determination, might encourage the CDCR to finally change their ways, but as far as can be seen, this is not the case.

The point worth making here is that even when threatened with either an OAL Determination or a Court of Appeal ruling, the beast that is the CDCR still does not budge. Sometimes, it’s only at the point of the court finally threatening an official with contempt (and time in jail) that a change in policy occurs.

This is not to discourage anyone from requesting OAL Determinations or from challenging regulations in court, its just to let others know the “long and winding road” that must sometimes be traveled to try effect change in government, especially with a behemoth like the CDCR.

South Bay

CDCR generates thousands of memos changing institution missions and policies on a regular basis. It is just doing business, not implementing underground regulations.

That the CDCR generates thousands of memos is of course true, but the CDCR should nonetheless abide by CA law by incorporating those memos it intends to use on a continuing statewide basis into Title 15 by utilizing the specific procedures envisioned by the state Legislature when they adopted the Administrative Procedure Act (APA) in 1947.

Penal Code section 5058, subdivision (a), declares in part that:

“The [Secretary] [of the CDCR] may prescribe and amend rules and regulations for the administration of the prisons. . . . The rules and regulations shall be promulgated and filed pursuant to [the APA]. . . .

The APA was enacted to establish basic minimum procedural requirements for the adoption, amendment or repeal of administrative regulations promulgated by the state's many administrative agencies. The APA requires an agency, including the CDCR, to give notice of the proposed adoption, amendment or repeal of a regulation, to issue a statement of the specific purpose of the proposed action, and to afford interested persons the opportunity to present comments on the proposed action. Unless the agency promulgates a rule or regulation in substantial compliance with the APA, the regulation is without legal effect. No doubt, many of those thousands of memos are technically illegal, as many of the rules they implement were never adopted in full compliance with the APA.

To further ensure compliance with the APA, the CA Legislature in 1979 established the Office of Administrative Law (OAL) and charged it with the orderly review of administrative regulations. In so doing, the Legislature cited a huge growth in the number of administrative regulations being adopted by state agencies as well as the lack of a central office with the power and duty to review regulations to ensure they are written in a comprehensible manner, are authorized by statute and are consistent with other law.

In 1982, the OAL was also granted the authority to issue "Determinations," which are formal opinions issued against state agencies upon a finding that an "underground regualtion" is being utilized by such agency. As an administrative agency, however, the OAL has no power to force an agency to follow a Determination. For many years, most of the OAL Determinations issued were against the CDC (now CDCR). In recent years, however, the number of Determinations involving the CDCR has dropped dramatically, with a possible reason being that many people may be jaded by the fact that the CDCR can simply issue a new bulletin or memo slighlty altering the rule or regulation just found to be illegal.

What’s disconcerting to see today is that with all the efforts by the Legislature to ensure compliance with basic rulemaking guidelines, the CDCR still finds it necessary to administer its prisons by unregulated memos. Perhaps someday the intent of the Legislature will be fulfilled, and the CDCR will follow an orderly and public process when adopting rules and regulations affecting so many thousands of people.

South Bay

What’s disconcerting to see today is that with all the efforts by the Legislature to ensure compliance with basic rulemaking guidelines, the CDCR still finds it necessary to administer its prisons by unregulated memos. Perhaps someday the intent of the Legislature will be fulfilled, and the CDCR will follow an orderly and public process when adopting rules and regulations affecting so many thousands of people.
South Bay

South Bay, thats's what bothers me, and it almost seems that CDCR enjoys violating their own rules, which is appaling since their employees want to be called 'peace officers', most 'peace officers' I have worked with follow the law and don't try to invent it as they go along.

When an inmate in SATF files a 602 appealing their endorsement to the facility are told that the endorsement is appropriate because of a 'memo from Sacramento'. When they appeal that, they are then told: "oops, you are actually eligible for a transfer to a minimum security facility but we don't consider transfers except at annual review, so ask us about a transfer then". Of course by their annual review, alot of the guys have less than 6 months left on their sentence, and the administration automatically turns down all transfer requests if you have less than 6 months to do, so they are screwed...The staff has this little game down to a science because they know they can get away with it.

I'm sure this is largely due to them having to fill beds, and get the federal SAP $$$$ Most inmates in reception know about the place and deny substance abuse history to avoid the dump, some guys who get sent there 'roll up' deciding that being in the hole is preferable to being in SATF. There is no vocational, few jobs, no hobby privilege, 8 man dorms that are really cells and locked down alot of the time.

It's unconscionable...My son will be ok, he avoids trouble; but if it came down to it, he could take care of himself, but one of these days there will be some first termer level one 19 year old 5'3" and 110 pounds who will get hurt or killed because of being placed there; maybe that is what it will take to get someone to pay attention; I only hope I can do something about that before it happens

In 1982, the OAL was also granted the authority to issue "Determinations," which are formal opinions issued against state agencies upon a finding that an "underground regualtion" is being utilized by such agency. As an administrative agency, however, the OAL has no power to force an agency to follow a Determination. For many years, most of the OAL Determinations issued were against the CDC (now CDCR). In recent years, however, the number of Determinations involving the CDCR has dropped dramatically, with a possible reason being that many people may be jaded by the fact that the CDCR can simply issue a new bulletin or memo slighlty altering the rule or regulation just found to be illegal.

South Bay

I hope any of my previous posts do not discourage anyone from utilizing the Determination process. OAL Determinations are really quite helpful, and sometimes the CDCR actually does suspend their underground regulation or otherwise adopts the questioned rule in accordance with the Administrative Procedure Act. The other great thing about a Determination is that it creates a public record on the specific issue, which invariably comes back around in another context. They are also very useful in a court action challenging the same CDCR rule or regulation; one can use the same arguments again in court that were cited by the OAL or the original party that filed for the Determination.

So by all means OAL Determinations serve good purpose, and going to the OAL website and reading the Determinations posted since 1986 really helps explain many of the issues still extant in the CDCR. One just must remember that obtaining an OAL Determination against the CDCR is not always the end, as it may be only just the beginning.

South Bay