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4B Wednesday, May 18, 2011
Bulletin, Progressive, Record, Reporter
State appeals Herzog writ, local decision
Sam Williams
Staff Writer
swilliams@lassennews.com
Lassen County and the city
of Susanville's fight to remove
paroled "Speed Freak Killer"
Loren Herzog from the area
continues.
On Thursday, April 28, the
California Department of Cor-
rections and Rehabilitation
(CDCR) filed an appeal seek-
ing to overturn a Nov. 12,
2010. ruling by Lassen County
Superior Court Judge Donald
Sokol that ordered Herzog's
immediate.removal. Sokol's
order was stayed pending the
state filing the appral with
the Court of the State of Cali-
fornia, 3rd Appellate District.
"Can a local government in-
terfere with the California De-
partment of Corrections and
Rehabilitation's statutory dis-
cretion in placing a parolee
that no community wants at a
location that serves the best
interests of the public, the vic-
tims and the surrounding
community?" CDCR asks in
the introduction to its appeal.
"The answer is no, and for
this reason, the court should
reverse the superior court's
order granting the petition for
(a) writ of mandate."
City Attorney Peter Talia and
Lassen County Counsel Rick
Crabtree were both attendfng
an out-of-town conference and
were unable to comment on the
appeal, but Traci Witty, former
Lassen County deputy county
counsel, is handling the matter
as a private contractor.
Witry said she was respon-
sible for the case, and she was
in the process of reviewing
the state's appeal and the case
law it cited. She said the city
and the county have 30 days
to file a response.
"I've already talked to Peter Talia, and we%
getting our response ready. It's dnitely not a dead
issue. It's important for the community to know we
didn't just roll over just because they're appealing it.
We're still fighting. We want him gone."
Traci Witry, Former Lassen County Deputy County Counsel
"I've already talked to Peter
Talia, and we're getting our re-
sponse ready," Witry said.
"It's definitely not a dead is-
sue. It's imimrtant for the com-
munity to know we didn't just
roll over just because they're
appealing it. We're still fight-
ing. We want him gone."
Luis Patino, a spokesperson
for CDCR, provided the news-
paper with a copy of the ap-
peal but declined to comment.
"We are just going to allow
the brief to speak for itself,"
he wrote in an email.
"The legislature entrusted
the CDCR with the sole dis-
cretion in determining the
placement of parolees," CDCR
wrote in the appeal. "Such
discretion is necessary to pre-
vent local communities from
blocking the placement of un-
popular criminals, such as
Loren Herzog, especially
when the state has assumed
extraordinary effort to prove
a secure placement for that
parolee."
The state's argument
"CDCR's ultimate selection
of Lassen County, which of-
Preparedness
Instructor Don Will (standing) leads participants throug a flood scenario during the final day
of a three-day Incident Command System (ICS) trainir class at the Eastern Plumas Health
Care Education Center in Portola on Thursday, May 12. The series of.classes, sponsored by a
grant from Homeland Security and targeted for mid-levpI management people at the federal,
state, local, tribal'and private sector, is designed to help coordinate response to local and
national emergencies. This class (ICS 300) featured representatives from the Plumas County
Dispatch Center, PlumasCounty Sheriff's Office, U.S'. Forest Service, Plumas County Environmental
Health, Plumas District HoSpital, Eastern Plumas Healt Care, Plumas County Public Works,
Portol Fire, and Eastern Plumas Rural Fire Photo by Trish aylor
fered readily available law en-
forcement, strict security
measures and an around-the-
clock electronic monitoring
sYstem, served the state's pri-
mary interests of protecting
Herzog's victims and the
greater community," CDCR
wrote.
According to the appeal
CDCR gave local officials "the
best practicable notice" and
the 45-day notice rule in Penal
Code section 2058.6 "does not
apply here" because of the dif-
ficulties encountered in try-
ing to place Herzog in three
other counties, and CDCR
"fully complied" with require-
ments of the penal code.
Herzog "could not be
paroled in San Joaquin
County, his last county of
residence, because a number
of his victims or witnesses
lived within 35 miles of Her-
zog's planned paroled place-
ment a violation of Penal
Code section 3003.
CDCR considered several
other locations, including
placing Herzog with a sister
:iffE.lRGrove, iri-Scramento
County, but Elk Grove is clos-
er than 35 miles to-the loca-
tion of "at least one of Her-
zog's victims."
CDCR considered Modoc
County, but it was "too re-
mote" for CDCR parole staff
and lacked sufficient coverage
through global positioning
system, thus making it harder
for CDCR parole officers to
electronically track Herzog's
movement.
Lassen County was deemed
an appropriate location for
Herzog's parole because CD-
CR receives a strong GPS sig-
nal in the area, it's readily ac-
cessible to parole agents and
has a strong law enforcement
presence.
CDCR pays all of Herzog's
living expenses; therefore, he
"does not need to seek em-
ployment while living on
prison grounds."
Herzog is under a strict cur-
few and is subject to the
"prison's security restrictions
in addition to the conditions
of his parole."
CDCR also notes that it,
Lassen County and the city of
Susanville do not dispute the
facts of the case.
"Because there is no dis-
pute on these operative facts,
the question of whether the
superior court can direct CD-
CR to transfer a parolee out of
a specific county presents a
pure question of law."
Since a writ of mandate
may only be used to compel a
duty that is "purel ministeri-
al in character," it "may not
be invoked to control an exer-
cise of discretion, i.e
pel an official to exe
cretion m a particul
According to CDCI
of mandate, howev,
proper to compel ex¢
discretionary act
state agency has n(
its discretion."
CDCR cites McCar
perior Court, a 1987
which the court cc
"By affording CDCR
discretion over a 1
plficemenL/e :legis]
., to com-
rcise dis-
r way."
, "A writ
.w, is im-
rcise of a
vhen the
,t abused
Lhy v. Su-
ruling in
ncluded,
with full
mrolee's
ature did
not provide the trial court
with any jurisdiction to issue
a temporary restraining order
enjoining a parolee's release
in a particular county. The
same rule applies here."
According to the McCarthy
ruling, a county cannot force
the transfer of a parolee to
another county simply be-
cause the citizens don't want
the parolee living in their
community.
"If local jurisdictions or
agencies were indiscrimi-
nately permitted to obtain in-
junctive relief, either tempo-
rary or permanent, to pre-
vent the return of undesir-
able parolees to their respec-
tive jurisdictions, then the
legislative purpose underly-
ing (the) enactment of (penal
code) section 3003 would be
seriously undermined," the
McCarthy court wrote.
According to CDCR, Sokol
"failed to consider the extent
to which CDCR considered all
factors, especially safety, in
determining Herzog's place-
ment in Lassen County served
the public's best interest."
CDCR also wrote Sokol
"failed to consider that, due
to the exigent circumstances
of the case, the 45-day notice
requirement (of the penal
code) did not apply, and CD-
CR provided notice as
promptly as it could under
the circumstances."
CDCR argued the difficul-
ties in finding a suitable pa-
role location for Herzog
"triggered a new notice peri-
od, requiring that CDCR pro-
vide Lassen County officials
with the soonest practicable
notice."
CDCR also noted Sokol's or-
der that "CDCR immediately
transfer Herzog out of the
county is in direct violation of
(the) statutory requirement of
45-day's notice."
And CDCR noted its actions
"fulfilled the purpose of no-
tice provisions by providing
the public a full opportunity
to resp0.nd, of which the pub-
lic took fut admage."
ahij
Is YOUR
HOME
SAFE
from fire?
100' of
DEFENSIBLE
SPACE
It's the law!
(CA PRC 429 ! )
Plumas County .
Fire Safe Council
as-" (PC FSC)
Is offering s00stance00n creating or
maintaining Defensible Space to residents
over 62 years of age in 2011 or disabled
living in Plumas County.
• PC FSC will provide a free Home Ignition Zone
consultation for determining work necessary to meet the
requirements of the law.
• PC FSC will procure competitive bids from qualified
and insured cortractors to meet California's Fire Safe
Standards.
• PC FSC will certify the work done before payments are
made.
• PC FSC will provide financial assistance based on
residents income.
Contact Rob Gimbel, c/o
Plumas County Fire Safe Council
P.O. Box 1225, Quincy, CA 95971
283-0829 or 283-3739
emaih rob@plumascounty.org
This program is provided by the Plumas County Fire Safe Council with funding from the Plumas County
Board of Supervisors, the Plumas NF through the Plumas Resource Advisory Committee, The California
Fire Safe Council Clearinghouse with funds from the US Forest Service and assistance from Plumas
Corporation and Plumas Rural Services.
LAW, fi'om page 3B
Slick roadway, May 9
At 11 a.m. Debra Burley, of
Fernley, Nev., was driving a
2000 Toyota Tundra at ap-
proximately 50 - 55 mph
northbound on Highway 49,
north of Heriot Lane. It was
hailing with snow flurries
and the road was covered
with hail.
Due to her excessive speed
for the roadway, according to
CHP, Burley lost control of the
vehicle while ascending the
south side of Newman Point.
The Tundra slid off the right
side of the roadway and turned
over onto its driver's side.
Burley was wearing a seat-
belt. No injuries were reported.
Backs into truck, May 10
At 12:.30 p.m. Danyelle Mus-
grove, 19, of Quincy, was back-
ing up a 2001 Dodge Durango
from a parking space on Court
Street, south of Main Street,
when she backed into a 2010
Ford F-350 pickup parked on
the opposite side of the street.
According to the CHP, Mus-
grove caused minor damage to
the Ford, but did not notice
the damage when she exited
the Dodge and looked. Think-
ing she only hit the bumper
and caused no damage, she left
the scene and returned home.
A witness to the collision
obtained the license plate
number and contacted the
owner of the Ford. When the
CHP arrived at Musgrove's
residence, she admitted to
bumping the Ford but said she
was unaware of any damage.
Plumas Unified School District
Superintendent PUSD
Glenn Harris
Basic Aid School
Finance Issue #3
12 In my last issue, I discussed the reasons for Basic Aid reserve requirements and presented an
example of how a return to revenue limit would affect a basic aid district. In this issue, we will
discuss the specifics related to our Plumas Unified School District.
Under state laW, Plumas Unified School District is required to hold a minimum of 3% reserve.
Without requiring all school districts to maintain a small reserve, they could easily get into
financial difficulty and lose the ability to meet required cash flow expenditures for payroll.
The 3% minimum reserve established by law, is not enough even in good financial times to meet
our obligations as a small district. Why? Our district is a relatively small with less than 2,000
students in Average Daily Attendance (ADA). The smaller the district the smaller the 3% represents
of our total budget. In essence, our district has an annual budget of $26 million, therefore we hold
at least $780,000 aside for emergencies. If one of our building systems failed and require d a $1
million overhaul the 3% reserve would not handle it.
The issue of our reserve is more complicated due to our Basic Aid status in that we must ensure
an additional reserve to enable us to return to Revenue Limit should the stat notify us that we no
longer meet the excess tax appropriations above our base revenue limit to remain Basic Aid. The
reserve amount determined for our situation is basically the annual difference between our revenue
limit calculation and our local property taxes.
The governing board has set the reserve level to $12 million which would allow for a two year
transition. Hence, our Basic Aiddistrict with $26 million annual revenue/expenses, upon returning
to Revenue Limit may only receive $11.7 million in revenue limit funding for the next year as a
Revenue Lirhit district. This scenario would leave our district with a $5.3 million budget shortfall
in July, unable to meet the coming $26 million of annual expenses. Our district would most likely
utilize approximately 45% of our reserve to offset the loss of revenue for year one, while still
having annual expenses of $26 million. Effective in March of the same year, the district would be
forced to cut roughly $5.3 million of operating expenses to absorb the hit. Since 74% of our school
district's expenses are in personnel costs you could easily see that the district would have to reduce
a significant part of our workforce in the first year. This action for our school district would mean
drastic changes in class sizes, course offerings, athletic funding etc..with little time for yearly
planning to plot our course of action.
This is why Basic Aid districts across the state, depending upon their size, liabilities, and their
local community's socio-economics, hold reserves varying from 20% to over 140%.
Sincerelyl
Glenn R. Harris, Superintendent PUSD-PCOE
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