By Danielle Harris
Managing Attorney, The Freedom Project
San Francisco Public Defender
In January 2022, the Attorney General filed a Notice of Appeal in the consolidated cases that had been the subject of the 2021 evidentiary hearing in Marin Superior Court; that concluded with Judge Howard’s order finding that CDCR exhibited deliberate indifference to the health and safety of incarcerated persons in 2020. The order did not grant affirmative relief because Judge Howard found the violation to be a historical one, given widespread vaccine availability.
Although the Attorney General noticed the appeals, they sat dormant over the next eight months. The Marin County Superior Court did not take the usual preliminary appeal processing steps of sending the notices to the Court of Appeal. So, although the appeal was properly “filed” (through timely notices in Superior Court), they were never docketed in the Court of Appeal, the appellate record was not prepared, and no briefing schedule was set.
Then, on September 30, 2022, the Attorney General withdrew its Notices of Appeal. Judge Howard’s order is thus final.
In the event of a future contagious and deadly disease outbreak improperly managed by CDCR, incarcerated persons can simultaneously file an administrative appeal and a habeas petition. Appeal exhaustion requirements may need to be litigated — circumstances depending — but an emergency situation warrants urgent use of all available options.
