As the California Office of Administrative Law ("OAL") was preparing to rule on a petition filed with that agency, the California Department of Mental Health ("DMH") circumvented any action by the OAL by certifying it will not issue, use, enforce, or attempt to enforce Coalinga State Hospital Administrative Directive ("AD") "AD-626," a regulation concerning patient property possession at Coalinga State Hospital ("CSH").

Rules and Regulations which are enforced at the States Eve Hospitals, and at the Developmentally Disabled Centers, are called "Administrative Directives" ("AD"). A CSH AD was challenged through a petition which asked the OAL to declare AD-626 an "Underground" regulation.

Research has uncovered no evidence that at anytime during the past 50 years has the DMH ever legally promulgated any of its Administrative Directives, a process required of all State Agencies in California under Government Code § § 11340 et seq. Early in his tenure as Governor, Governor Schwarzenegger even issued an executive directive which ordered all state agencies to come into compliance with this law. The DMH continues to fail to follow the law and the Governor's order.

CSH patient James A. Hydrick challenged AD-626 alleging it was an "Underground" regulation through a petition to the Office of Administrative Law on August 6, 2007. The OAL accepted this petition and set a public comment period. Protection & Advocacy attorney Sean Rashkis of Sacramento filed a brief in support of the Hydrick Petition, citing the illegal and unconstitutional portions of AD-626. According to staff at the OAL, the DMH failed to file any documents to support their use of AD-626, nor did they defend their use of this AD in any other manner. Instead, the DMH applied a sleight-of-hand diversion tactic that essentially rendered Hydrick's petition moot.

On January 8, 2008, Petitioner James Hydrick was discharged from the Department of Mental Health and returned to prison. Shortly before Hydrick left, Michael St.Martin, who had been working with Hydrick on this issue was substituted-in as the petitioner of record.

On February 5, 2008, the Director of the Department of Mental Health, Stephen Mayberg, PhD., signed a "Delegation of Authority" for certification which stated, "I hereby delegate my authority and responsibilities for these matters to the following individuals:" The only individual listed is "Cindy Radavsky." On February 6, 2008, Cynthia A. Radavsky signed the statement, "We fully understand and accept this delegation."

Also on February 6, 2008, on a Department of Mental Health letterhead, Cynthia Radavsky issued a Certification which she signed as Deputy Director, Long Term Care Services, California Department of Mental Health. The body of this certification states:

CERTIFICATION PURSUANT6 TO 1 CCR 280

I, Cynthia A. Radavsky, Deputy Director of Long Term Care Services, California Department of Mental Health (Department), hereby certify: l. The Department received a copy of a petition filed with California Office of Administrative Law by James A. Hydrick, on or about August 15, 2007. A copy of the petition is attached hereto as Exhibit A. 2. The Department will not issue, use, enforce, or attempt to enforce the alleged underground regulation. Coalinga State Hospital Administrative Directive No. 626. 3. A copy of this certification was sent to the petitioner by certified mail, and a copy of the receipt is attached hereto as Exhibit B.

Subsequently, St.Martin, the new petitioner of record received, via registered mail, the DMH certification stating the DMH would not issue, use, enforce, or attempt to enforce AD-626.

This sleight-of-hand diversion tactic utilized by the DMH to certify Pursuant to Title 1, of the California Code of Regulations, § 280, that they would not issue, use, enforce, or attempt to enforce the alleged underground regulation, removed the OAL's statutory authority to act on the petition.

On February 13, 2008, the Office Of Administrative Law issued a letter, Re: CTU2007-0815-01, The AD626 Petition. In this letter to the petitioner signed by Susan Lapsley, Director, the OAL states:
 
 

The Office of Administrative Law has received your petition alleging that the Department of Mental Health has issued, used, enforced, or attempted to enforce an underground regulation. The rule you challenge is Coalinga State Hospital Administrative Directive 626. Department of Mental Health has certified, pursuant to California Code of Regulations, title 1 section 280, that it will not issue, use, enforce, or attempt to enforce Administrative Directive 626. OAL, therefore, pursuant to section 280, will suspend all action on the petition. Our decision in no way reflects on the merits of the underlying issue presented by your petition. It does not constitute a judgment or opinion on any issue raised in your petition. Nothing in our decision restricts your right or ability to pursue this matter directly with the Department of Mental Health

Although this is just one Administrative Directive, the implication to DMH had been huge as every Administrative Directive could now come under attack had the OAL been allowed to make a final ruling. Patients confined in the DMH facilities have been complaining that since the DMH has never legally promulgated a single AD in at least fifty years, they are all "Underground Regulations" pursuant to the Administrative Procedures Act, Govt. Code §§ 11340, et seq.

The then California Department of Corrections went through a similar attack, nearly twenty years ago, when Charles Tooma, a prisoner at the Sierra Conservation Center, challenged the Department Operations Manual ("DOM") as an "Underground Regulation." This case was finally adjudicated in Tooina v. Rowland, an unpublished 5"' District Court of Appeals decision, Case No. F0015383 (1991), where the State Appellate Court agreed with Tooma and ordered the CDC to cease using those portions of the DOM which had not been promulgated pursuant to the Administrative Procedures Act until such time as they were properly promulgated.

It is too early to tell whether or not the DMH will actually follow the law in this case, or whether it will require the taxpayers to foot the bill for expensive litigation, and a court order directing the DMH to follow the law, as was the case with the former CDC, now CDCR. If the DMH fails to follow the law at this point, as many expect, it will just give credence to a quote by petitioner Michael St.Martin, "I am being held prisoner for crimes I may commit in the future by people who are committing crimes in the present."