Farrow v. Lipetzky

Decision Date08 May 2013
Docket NumberCase No. 12-cv-06495-JCS
PartiesJOHN FARROW, et al., Plaintiffs, v. ROBIN LIPETZKY, Defendant.
CourtU.S. District Court — Northern District of California
ORDER GRANTING DEFENDANT'S
MOTION TO DISMISS THE
COMPLAINT WITHOUT PREJUDICE
I. INTRODUCTION

Plaintiffs John Farrow ("Farrow") and Jerome Wade ("Wade") (collectively, "Plaintiffs") brought this putative class action against Defendant Robin Lipetzky, in her official capacity as the Contra Costa County Public Defender ("Defendant"). Plaintiffs allege causes of action (1) under 42 U.S.C. § 1983 for (a) violation of the Sixth Amendment to the United States Constitution; and (b) violations of the Fourteenth Amendment to the United States Constitution; (2) under the Unruh Act for violation of their statutory speedy trial rights; and (3) for violation of California Government Code § 27706. Presently before the Court is Defendant's Motion to Dismiss the Complaint ("Motion"). The parties have consented to the jurisdiction of a magistrate judge pursuant to 28 U.S.C. § 636(c). This Motion raises two related questions. First, does the failure to provide counsel at an initial appearance (at which the only events that occur are the provision of a copy of the charges to the defendant, the inquiry as to whether the defendant desires appointed counsel, and the continuance of the matter to allow for appointment of counsel) violate the Sixth Amendment guarantee of counsel in a criminal case? Second, where the matter is continued for 5 to 13 days, at which time counsel appears with the defendant, does the delay in appointment of counsel violate the Sixth Amendment? Because the Court answers both questions in the negative, the Motion is GRANTED and the Complaint is dismissed with leave to amend.

II. REQUEST FOR JUDICIAL NOTICE

The standard for judicial notice is set forth in Rule 201 of the Federal Rules of Evidence, which allows a court to take judicial notice of an adjudicative fact not subject to "reasonable dispute," either because it is "generally known within the territorial jurisdiction of the trial court" or it is "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201. As a general rule, the court "may not consider any material beyond the pleadings in ruling on a Rule 12(b)(6) motion." U.S. v. Corinthian Colleges, 655 F.3d 984, 998-99 (9th Cir. 2011) (quoting Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001)). However, the court may "consider materials that are submitted with and attached to the Complaint." Id. at 999. The court "may also consider unattached evidence on which the complaint 'necessarily relies' if: (1) the complaint refers to the document; (2) the document is central to plaintiff's claim; and (3) no party questions the authenticity of the document." Id. at 999 (citing Marder v. Lopez, 450 F.3d 445, 448 (9th Cir. 2006)). In addition, the court may take judicial notice of "matters of public record," but not facts that may be "subject to reasonable dispute." Id. (citing Lee, 250 F.3d at 689).

Defendant seeks judicial notice of two facts on the basis of five public records. Defendant's Request for Judicial Notice ("RJN"), 1-2; Corrected Declaration of D. Cameron Baker in Support of Defendant's Motion to Dismiss ("Baker Declaration"), Exs. A-E. The five public records are: (1) the "AB 109 Operations Plan for Contra Costa County as Approved and Adopted by the Executive Committee of the Contra Costa County Community Corrections Partnership Adopted November 9, 2012;" (2) a Position Adjustment Request from the official files of the Contra Costa County Board of Supervisors for funding for two full-time Deputy Public Defender Positions and one full-time Paralegal Position, signed with Board approval on January 15, 2013; (3) an order dated January 15, 2013 approving the "2012/13 AB 109 Criminal Justice Realignment Implementation Plan" from the official records of the Contra Costa County Board of Supervisors; (4) an affidavit, from the Contra Costa County Office of the Public Defender in the matter entitled People v. Farrow, Contra Costa County Superior Court No. 01-15531-7, in which Christopher Martin is appointed to represent John Howard Farrow; and (5) a minute order datedNovember 21, 2011 from the Contra Costa Superior Court file entitled People v. Wade, Case No. 5-121217-4, stating that Jerome Edward Wade appeared with his attorney "Martin." Baker Declaration, ¶¶ 3-7, Exs. A-E. The two facts are: (1) Defendant now "has funding to have attorneys present at the initial court appearance for criminal defendants;" and (2) that "Christopher Martin, one of Plaintiffs' attorneys in this case, was counsel of record for both Plaintiffs in their underlying criminal proceedings." RJN, 1.

Plaintiffs oppose judicial notice. Plaintiffs' Opposition to Motion to Dismiss ("Opposition"), 7-9. In particular, Plaintiffs contest whether the apparent acquisition of funding for two additional public defender positions is sufficient to provide representation of indigent defendants in misdemeanor and felony cases at three courthouses in Contra Costa County. Id. at 8. The Court takes judicial notice of the five documents as public records. The Court cannot take judicial notice of the inference that Defendant now has adequate funding to have attorneys present at the initial court appearance for all criminal defendants. Although the noticed documents indicate that Defendant has obtained funding for two Deputy Public Defender positions and one Paralegal position to "[p]rovide for early representation of arrestees at the first Court appearance," whether that funding is adequate is subject to reasonable dispute. As to whether Plaintiffs' counsel also represented them in their criminal proceedings, neither party has made any argument relying on that asserted fact and the Court does not rely on it in resolving this Motion.

III. BACKGROUND
A. Complaint

Plaintiffs allege that indigent, in-custody criminal defendants in Contra Costa County are customarily left in jail without counsel for 5 to 13 days after their first court appearance. Complaint, ¶ 1. Plaintiffs allege that, in the first court appearance, which is "dubbed 'arraignment,'" no plea is taken, bail is not examined, and counsel is not appointed. Id. at ¶ 2. Plaintiffs allege that this is a result of Defendant's policy:

At the first court appearance (arraignment) when given a copy of the charges - or when questioned in police custody before arrest or charges are brought - a person may request representation by an attorney. At the arraignment or first appearance, persons out ofcustody will be referred to our office and given a date to return to court with an attorney. Persons in custody will be given a court date and will be visited at the jail by staff from the Department before the next court date.

Id. at ¶ 3-4, Ex. A. Plaintiffs allege that referral to a public defender at the first court appearance results in an automatic continuance, customarily between 5 and 13 days, for "further arraignment." Id. at ¶¶ 4, 6. Plaintiffs allege that this delays the activation of their state statutory speedy trial rights, because those rights run from the entry of plea. Id. at ¶ 7.

Plaintiffs allege that Farrow was arrested on August 30, 2012. Id. at ¶ 29. Thereafter, Farrow appeared alone in court for his arraignment on September 2, 2012. Id. at ¶ 30. The court asked Farrow if he could afford counsel, and Farrow replied that he could not. Id. at ¶ 31. The court asked Farrow if he wanted the court to appoint counsel, and Farrow said that he did. Id. The court then referred the matter to the Public Defender and continued the matter to September 15, 2012 for "further arraignment" without advising Farrow of his right to bail or his right to a speedy preliminary hearing and trial. Id. Farrow remained in jail without examination of bail, legal representation, or statutory speedy trial rights until the "further arraignment," at which counsel was appointed and Farrow entered his plea. Id. at ¶¶ 31-32.

Plaintiffs allege that Wade was arrested on November 8, 2012.1 Id. at ¶ 33. Wade appeared at court alone for his arraignment on November 14, 2011. Id. at ¶ 34. The court asked Wade if he could afford counsel, and he replied that he could not. Id. at ¶ 35. The court asked Wade if he wanted the court to appoint counsel, and Wade replied that he did. Id. The court referred the matter to the Public Defender and continued the matter to November 21, 2011 for "further arraignment" without advising Wade of his right to bail or his right to a speedy preliminary hearing and trial. Id. Wade remained in jail without examination of bail, the protection of the statutory speedy trial rights, or legal representation until the "further arraignment," at which counsel was appointed and Wade entered his plea. Id. at ¶¶ 35-36.

Plaintiffs allege that Farrow and Wade represent a class of indigent, in-custody criminal defendants in Contra Costa County that asked for appointment of the Public Defender, suffered anautomatic continuance of between 5 and 13 days as a consequence of asserting their right to appointed counsel without any knowledge of their bail rights or statutory speedy trial rights, were deprived of counsel between 5 and 13 days, and were deprived of their statutory speedy trial rights and their right to a prompt bail hearing during the 5 to 13 day period. Id. at ¶ 41. Plaintiffs further allege that the putative class was deprived of said rights pursuant to the Public Defender's written policy, that the Public Defender maintains written records with regard to each Plaintiff, and that the Public Defender knew that the actions alleged in the Complaint violated state and federal law when she committed said actions. Id.

Plaintiffs allege six causes of action:

(1) Violation of the Sixth Amendment of the U.S. Constitution: Plaintiffs allege that Defendant's failure to represent Plain...

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