Valdivia, et al v. Schwarzenegger, et al

Filing 1738

ORDER signed by Judge Lawrence K. Karlton on 1/23/12; Defendant's Motion to Enforce Penal Code § 3044 and to Modify the Permanent Injunction, ECF No. 1680, is DENIED, except that Injunction 11(b)(iv)and 23 are modified to reflect that defen dants shall provide a revocation hearing no later than the 45th calendar day after the placement of the parole hold. Plaintiff's Motion to Enforce the Injunction, ECF No. 1684, is GRANTED, except that the injunction is modified as stated above. (Matson, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JERRY VALDIVIA, ALFRED YANCY,
and HOSSIE WELCH, on their own
behalf and on behalf of the class
of all persons similarly situated,
NO. CIV. S-94-671 LKK/GGH

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Plaintiffs,
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v.

O R D E R

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EDMUND G. BROWN, JR., Governor of
the State of California, et al.,
Defendants.
/

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Pending before the court are two motions following the remand

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of this matter by the Ninth Circuit. Plaintiffs move to enforce the

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stipulated injunction issued by this court on March 9, 2004, and

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to prohibit enforcement of Prop. 9 § 5.3, passed by California

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voters in 2008. Defendants move to modify the injunction to conform

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with Prop. 9. The court resolves the instant motions on the papers

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and after oral argument. For the reasons that follow, plaintiffs’

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motion is granted in part and denied in part. Defendants’ motion

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is granted in part and denied in part.
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I. Background

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The factual and procedural background of this case has been

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recited in detail in prior orders of this court. See e.g., Valdivia

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v. Schwarzenegger, 603 F.Supp.2d 1275, 1276. A summary of this

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background and subsequent developments follows.

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Plaintiffs filed this class action in 1994, challenging

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California’s parole revocation process on constitutional grounds.

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In 2002, this court granted partial summary judgment to plaintiffs,

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holding that the parole revocation process violated plaintiffs’ due

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process rights. Valdivia v. Davis, 206 F. Supp. 2d 1068 (E.D. Cal.

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2002). Specifically, the 2002 order held that the system in place

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at the time “allowing delay of up to forty-five days or more before

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providing the parolee an opportunity to be heard regarding the

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reliability of the probable cause determination does not” meet

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constitutional muster. Id. at 1078. In October 2002, the court

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ordered defendants to file a proposed remedial plan to address the

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constitutional deficiencies identified in the June order. In July

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2003, the court issued an order in response to defendants’ request

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for guidance on “what precisely the Constitution requires with

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respect

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Reiterating that procedural due process requirements are flexible

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as to each factual situation, the court nevertheless concluded,

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after a comprehensive review of the case law, that “a period of ten

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days [to hold a probable cause hearing] strikes a reasonable

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balance between inevitable procedural delays and the state’s

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interest in conducting its parole system, on the one hand, and the

to

the

timing

and

content

2

of

revocation

hearings.”

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liberty interests of the parolees, on the other.” July 23, 2003

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Order

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standards for the probable cause hearings with respect to accuracy.

at

13.

The

court

additionally

set

forth

some

minimal

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On March 9, 2004, this court approved a stipulated settlement

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and permanent injunction (“Injunction”), which incorporated a

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remedial plan submitted by the defendants. The Injunction contains

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the following provisions:

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1) A parole revocation hearing shall be held no later than
35 calendar days from the date of the placement of the
parole hold. Stipulated Permanent Injunction ("Inj.") ¶
11(b)(iv), 23.
2) Defendants shall hold a probable cause hearing no later
than 10 business days after the parolee has been served
with notice of the charges and rights, which shall occur
not later than three business days from the placement of
the parole hold. Inj. ¶ 11(d).
3) Defendants shall appoint counsel for all parolees at the
beginning of the RTCA stage of the revocation proceedings.
Defendants shall provide an expedited probable cause
hearing upon a sufficient offer of proof by appointed
counsel that there is a complete defense to all parole
violation charges that are the basis of the parole hold.
Inj. ¶ 11(b)(I).
4) At probable cause hearings, parolees shall be allowed to
present evidence to defend or mitigate against the charges
and proposed disposition. Such evidence shall be presented
through documentary evidence or the charged parolee's
testimony, either or both of which may include hearsay
testimony. Inj. ¶ 22.
5) The use of hearsay evidence shall be limited by the
parolees' confrontation rights in the manner set forth
under controlling law as currently stated in United States
v. Comito, 177 F.3d 1166 (9th Cir. 1999). The Policies and
Procedures shall include guidelines and standards derived
from such law. Inj. ¶ 24.
6) Parolees' counsel shall have the ability to subpoena and
present witnesses and evidence to the same extent and under
the same terms as the state. Inj. ¶ 21.

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On November 4, 2008, California voters passed Proposition
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9: “Victims' Bill of Rights Act of 2008: Marsy's Law." Prop. 9
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adds § 3044 to the California Penal Code. That section provides:

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a) Notwithstanding any other law, the Board of Parole
Hearings. . .shall be responsible for protecting victims'
rights in the parole process. Accordingly, to protect a
victim from harassment and abuse during the parole process,
no person paroled from a California correctional facility
following incarceration for an offense committed on or
after the effective date of this act shall, in the event
his or her parole is revoked, be entitled to procedural
rights other than the following:
(1) A parolee shall be entitled to a probable cause
hearing no later than 15 days following his or her
arrest for violation of parole.
(2) A parolee shall be entitled to an evidentiary
revocation hearing no later than 45 days following
his or her arrest for violation of parole.
(3) A parolee shall, upon request, be entitled to
counsel at state expense only if, considering the
request on a case-by-case basis, the board or its
hearing officers determine:
(A) The parolee is indigent; and
(B) Considering the complexity of the charges,
the defense, or because the parolee's mental or
educational capacity, he or she appears incapable
of speaking effectively in his or her own
defense.
(4) In the event the parolee's request for counsel,
which shall be considered on a case-by-case basis, is
denied, the grounds for denial shall be stated
succinctly in the record.
(5) Parole revocation determinations shall be based on
a preponderance of evidence admitted at hearings
including documentary evidence, direct testimony, or
hearsay evidence offered by parole agents, peace
officers, or a victim.
(6) Admissions of the recorded or hearsay statement of
a victim or percipient witness shall not be construed
to create a right to confront the witness at the
hearing.
(b) The board is entrusted with the safety of victims and
the public and shall make its determination fairly,
independently, and without bias and shall not be influenced
by or weigh the state cost or burden associated with just
decisions. The board must accordingly enjoy sufficient
autonomy to conduct unbiased hearings, and maintain an
independent legal and administrative staff. The board shall
report to the Governor.
Prop. 9 § 5.3.

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Following the passage of Prop. 9, plaintiffs moved to enforce

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the injunction, asserting that portions of § 3044 conflicted with

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provisions of the injunction and must be held invalid. Defendants

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moved to modify the injunction, arguing that § 3044 does not

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conflict with the injunction, and that if there was a conflict, the

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injunction should be modified to conform to Prop. 9.

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The court issued an order on those motions on March 29, 2009

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(“March Order”). The March Order noted four provisions of § 3044

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that were in plain conflict with the injunction. See Valdivia 603

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F. Supp. 2d at 1282-83. Citing the Supremacy Clause of the

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Constitution and cases interpreting it,1 the court held that where

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there was a conflict between Prop. 9 and the injunction, Prop. 9

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could not be enforced. Thus, the court granted plaintiffs’ motion

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and denied defendants’.

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Defendants appealed the March Order to the Ninth Circuit. The

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Ninth Circuit rendered a decision on March 25, 2010, vacating and

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remanding this court’s March Order. The Ninth Circuit held “unless

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a state law is found to violate a federal law, or unless the

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Injunction is found necessary to remedy a constitutional violation,

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federalism principles require the reconciliation of state law and

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See, e.g., Cooper v. Aaron, 358 U.S. 1 (1958)(“If the
legislatures of the several states may, at will, annul the
judgments of the courts of the United States, and destroy the
rights acquired under those judgments, the constitution itself
becomes a solemn mockery.”); Missouri v. Jenkins, 495 U.S. 33, 57
(1990)(district court order requiring the state to raise taxes
beyond the state statutory limit in order to fund a desegregation
plan must be enforced in spite of state statute, as “to hold
otherwise would fail to take account of the obligations of local
governments, under the Supremacy Clause, to fulfill the
requirements that the Constitution imposes on them.”).
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federal injunctions.” Valdivia v. Schwarzenegger, 599 F.3d 984, 995

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(9th Cir. 2010). This court received the mandate on September 22,

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2010, and briefing by the parties was completed in October 2011.

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II. Standard to Enforce or Modify Injunction

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A district court has continuing jurisdiction to enforce its

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own injunctions. Crawford v. Honig, 37 F.3d 485, 488 (9th Cir.

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1994). “An injunction often requires continuing supervision by the

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issuing court and always a continuing willingness to apply its

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powers and processes on behalf of the party who obtained that

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equitable relief.” System Federation No. 91 Railway Employees'

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Dep't v. Wright, 364 U.S. 642, 647 (1961).

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Under Federal Rule of Civil Procedure 60(b)(5), a court may

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relieve a party from its obligations under an order of the court

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if prospective application of the order is no longer equitable. See

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Sys. Fed'n No. 91 v. Wright, 364 U.S. 642, 646-47. Modification of

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an injunction, including a consent decree, is considered equitable

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when there has been a significant change in relevant law or factual

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circumstances. Id. at 647-48; see also Rufo v. Inmates of Suffolk

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County

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modification

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warranted.

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consider whether the modification is appropriately tailored to the

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changed circumstance. Id.

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Jail,

502

U.S.

bears

the

367

(1992).

burden

to

The

show

party

that

seeking

modification

the
is

Rufo, 502 U.S. at 383. If it does, the court must then

“A district court may refuse to modify a federal injunction

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in light of a given state law where such a law violates federal

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law. See Clark v. Coye, 60 F.3d 600, 605 (9th Cir. 1995). However,
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1

merely

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injunction, is insufficient to deny modification of the injunction,

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and "clearly constitute[s] an abuse of discretion." Valdivia v.

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Schwarzenegger, 599 F.3d 984, 995 (9th Cir. 2010).

5

finding

that

a

state

law

conflicts

with

a

federal

III. Analysis

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The Ninth Circuit has directed the court to determine whether

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“any aspect of the California parole revocation procedures, as

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modified by Proposition 9, violated constitutional rights, [and

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whether] the Injunction was necessary to remedy a constitutional

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violation.” Valdivia v. Schwarzenegger, 599 F.3d 984, 995 (9th Cir.

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2010). Without such findings, the injunction must be reconciled

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with California law as expressed in Prop. 9.

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The starting place for determining the due process rights of

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individuals prior to parole revocation is Morrissey v. Brewer, 408

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U.S. 471 (1972). There, the Supreme Court held that, although

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parolees enjoy only “conditional liberty,” termination of that

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liberty constitutes a “grievous loss” requiring “some orderly

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process.” Id. at 495. The Court held that the process that is due

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to an individual facing parole revocation includes “two hearings,

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one a preliminary hearing at the time of his arrest and detention

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to determine whether there is probable cause to believe that he has

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committed a violation of his parole, and the other a somewhat more

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comprehensive hearing prior to the making of the final revocation

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decision.” Gagnon v. Scarpelli, 411 U.S. 778, 781-782 (1973)

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(citing Morrisey). With respect to the preliminary hearing, the

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parolee is entitled to an “uninvolved decision-maker;” notice of
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the hearing and its purpose, including the nature of the alleged

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violations; the ability to speak on his own behalf, present

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letters, documents, or witnesses; the ability, in some cases, to

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question any person who has given adverse information on which

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parole revocation is to be based; a written summary of the

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proceedings; and a decision on the record. Morrisey 485-487.

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Defendants ask the court to restrict its analysis to the four

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provisions of Prop. 9 that the court has already found to be in

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plain conflict with the Injunction, namely § 3044(a), § 3044(a)(3),

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§ 3044(a)(2), and § 3044(b). See Valdivia, 603 F.Supp.2d at 1282.

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Plaintiffs assert, correctly in the court’s view, that the Ninth

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Circuit has directed the court to determine whether any provisions

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of § 3044 violate constitutional rights.

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A. Section 3044(a)

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i. Whether § 3044(a) violates constitutional rights.

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California Penal Code § 3044(a) provides:

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Notwithstanding any other law, the Board of Parole
Hearings. . . shall be responsible for protecting victims'
rights in the parole process. Accordingly, to protect a
victim from harassment and abuse during the parole process,
no person paroled from a California correctional facility
following incarceration for an offense committed on or
after the effective date of this act shall, in the event
his or her parole is revoked, be entitled to procedural
rights other than the following...

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Plaintiffs argue that this provision prohibits state officers
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from implementing procedures required under due process, since
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“Prop. 9's abbreviated list falls short of what the Due Process
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Clause and other federal laws obligate the State to provide when
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a parolee’s conditional liberty is at stake.” Pls.’ Mot. 7, ECF No.

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1685. Defendants argue that the Constitution does not require any

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additional procedural rights beyond what is provided for in § 3044.

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§ 3044(a) provides that California parolees are entitled only

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to an enumerated list of procedural rights that does not include

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all of the procedures that the Supreme Court has determined to be

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required under the Due Process Clause. Defendants argue that §

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3044(a) merely makes clear that under California law, parolees are

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not entitled to any process other than the Constitutional minimums.

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Defs.’ Opp’n 13, ECF No. 1694. Defendants assert “although section

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3044 does not exhaustively list in detail every hearing procedure

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required

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requirements not specifically listed in the statute through the

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obligation to provide a ‘hearing.’” Id. Defendants’ argument is

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untenable under a plain reading of the section. It is hard to see

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how the words “no person. . . shall be entitled to procedural

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rights other than the following. . .,” followed by a short

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enumerated list can be interpreted as incorporating any procedures

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that aren’t specifically listed. By its plain terms, Prop. 9

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precludes

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statute.

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by

due

process,

reading

any

it

incorporates

additional

procedural

all

due

rights

process

into

the

As discussed below, the listed procedures fall short of what

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is

required

by

federal

due

process.

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impermissibly deprives members of the plaintiff class the process

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due under the Constitution.

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9

Accordingly,

§

3044(a)

1

C. Sections 3044(a)(1)and 3044(a)(2)

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ii. Whether 3044(a)(1) and (a)(2) are unconstitutional

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Section 3044(a) sets forth parolees’ rights with respect to

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probable cause and evidentiary revocation hearings: “(1) A parolee

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shall be entitled to a probable cause hearing no later than 15 days

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following his or her arrest for violation of parole. (2) A parolee

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shall be entitled to an evidentiary revocation hearing no later

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than 45 days following his or her arrest for violation of parole.”

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Plaintiffs contend that this section deprives parolees of due

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process rights as set forth in Morrisey. Defendants assert that all

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of those rights are incorporated into the statue by use of the word

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“hearing.” The court has already explained why defendants’ position

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is contrary to the plain meaning of the statute.

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In Morrisey v. Brewer, 408 U.S. 471 (1972), the Supreme Court

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set forth the minimum requirements of due process for probable

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cause

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parolees are entitled to a hearing “conducted at or reasonably near

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the place” of the alleged violation, “as promptly as convenient

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after arrest”; notice that the hearing will take place and of its

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purpose;

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“independent officer”; the right to speak on his own behalf and

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bring letters, documents, and witnesses; a written summary of the

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proceedings; and a decision based on stated reasons and cited

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evidence. Id. at 487-88.

and

revocation

notice

of

hearings.

the

For

allegations;

probable

a

cause

hearings,

determination

by

an

25

For a revocation hearing, the minimum due process requirements

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are: “(a) written notice of the claimed violations of parole; (b)
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1

disclosure to the parolee of evidence against him; (c) opportunity

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to be heard in person and to present witnesses and documentary

3

evidence; (d) the right to confront and cross-examine adverse

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witnesses (unless the hearing officer specifically finds good cause

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for not allowing confrontation); (e) a "neutral and detached"

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hearing body such as a traditional parole board, members of which

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need not be judicial officers or lawyers; and (f) a written

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statement by the factfinders as to the evidence relied on and

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reasons

for

revoking

parole.”

Id.

at

489.

Additionally,

the

10

revocation hearing must take place within a “reasonable time after

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the parolee is taken into custody.” Id.

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The bare requirements in § 3044 fall short of the minimum due

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process set forth in Morrisey. The court need not list each element

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missing from § 3044,2 but they include notice, a written summary

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of the proceedings and of the revocation decision, the opportunity

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to present documentary evidence and witnesses, and disclosure to

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the parolee of the evidence against him. Indeed, in this very case,

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the court already held that “the opportunity to present documentary

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evidence, the opportunity to present witnesses, and a conditional

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right to confront adverse witnesses are constitutionally-required

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components of due process.” July 23, 2003 Order 15, ECF No. 796.

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Accordingly, the court finds that Sections 3044(a)(1)and 3044(a)(2)

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are unconstitutional.

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Defendants focus on the time frames set forth in these

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2

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Such a list would read almost identical to the complete list
of requirements already cited from Morrisey.
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1

sections. Doing so is understandable, since the 10- and 45- day

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time limits are the only thing guaranteed in the statute at issue.

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Plaintiffs argue that this court has already held that 45 days is

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an unconstitutionally long delay between the commencement of a

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parole hold and the revocation hearing. That holding, however, was

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in the context of a “unitary” revocation scheme–one that does not

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include a preliminary probable cause hearing. Valdivia v. Davis,

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206 F. Supp. 2d 1068, 1078 (E.D. Cal. 2002). In the scheme under

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review at the time, “at no time prior to the unitary revocation

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hearing

d[id]

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position to an independent decision-maker or to challenge, in any

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manner, whether the parole officer had probable cause for the

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parole hold and resulting detention.” Id. at 1071. In that context,

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this court held “California's system allowing a delay of up to

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forty-five days or more before providing the parolee an opportunity

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to be heard regarding the reliability of the probable cause

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determination does not” meet constitutional muster. Id. at 1078.

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The

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constitutional limits when a Morrisey-compliant preliminary hearing

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has been held in the interim. In Morrisey itself, the Supreme Court

21

held

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unreasonable” for a revocation hearing when a preliminary hearing

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has been held promptly after arrest. Morrisey, 408 U.S. at 489.

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However, as noted, the revocation scheme at issue here does not

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guarantee a prompt probable cause hearing with all of the minimum

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process set forth in Morrisey.

court

that

parolees

has

“a

never

lapse

of

have

held

two

an

opportunity

that

months,

12

to

forty-five

would

not

present

days

appear

their

exceeds

to

be

1

Accordingly, the court concludes that §§ 3044(a)(1) and

2

3044(a)(2) violate the constitution because they deprive parolees

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of the procedural rights guaranteed in Morrisey.

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iii. Whether the Injunction is necessary with respect to §

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3044(a)(1) and (a)(2)

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As noted by the Ninth Circuit in this case, “the scope of

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federal injunctive relief against an agency of state government

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must always be narrowly tailored to enforce federal constitutional

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and statutory law only.” Valdivia, 599 F.3d at 995 (internal

10

citation omitted). The narrow tailoring requirement, however, does

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not deprive a district court of its “substantial flexibility” to

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craft remedies once constitutional violations are found. Brown v.

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Plata, 131 S. Ct. 1910, 1944 (2011). Injunctive relief “does not

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fail narrow tailoring simply because it will have positive effects

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beyond the plaintiff class. . . A narrow and otherwise proper

16

remedy is not invalid simply because it will have collateral

17

effects.” Id. at 1940. See also Milliken v. Bradley, 433 U.S. 267,

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281-82 (1977)(“The well-settled principle that the nature and scope

19

of the remedy are to be determined by the violation means simply

20

that federal-court decrees must directly address and relate to the

21

constitutional

22

constitutional violation has been found, the remedy does not

23

‘exceed’ the violation if the remedy is tailored to cure the

24

condition that offends the Constitution.”). In addition, the court

25

should account for practical consideration when crafting its

26

remedy. Matthews v. Eldridge, 424 U.S. 319 (1976).

violation

itself.

13

.

.

But

where.

.

.

a

1

The Injunction at issue here provides for the following

2

procedure with respect to preliminary and revocation hearings:

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within 3 days of incarceration in a parole hold, the parolee will

4

be served with actual notice of the alleged violation, including

5

a short factual summary of the charged conduct and written notice

6

of the parolee’s rights regarding the revocation process and

7

timeframes; within 10 days after the parolee has been served with

8

a notice of the charges, defendants shall hold a hearing to

9

determine whether there is probable cause, unless the parolee

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waives or seeks a continuance of the probable cause hearing; within

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35 days of the placement of the parole hold, defendants shall

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provide a final revocation hearing.

13

Plaintiffs argue that the 35-day outer limit for a probable

14

cause hearing was negotiated by the parties in exchange for other

15

aspects of the overall scheme, including a truncated probable cause

16

hearing. For the reasons already discussed, plaintiffs assertion

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that this court already held 45 days to be unreasonable fails. In

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Morrisey, the Court found expressly that two months is not an

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unreasonable delay for completing a revocation hearing, assuming

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all of the other due process requirements are met, including a

21

probable cause hearing within ten days.

22

Accordingly, the court finds that the injunctive measures are

23

necessary

to

remedy

constitutional

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3044(a)(1) and (a)(2), except that defendants shall provide a

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revocation hearing no later than the 45th calendar day after the

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placement of the parole hold. Injunction ¶¶ 11(b)(iv)and 23 are
14

violations

created

in

§

1

modified accordingly to reconcile with 3044(a)(2)’s 45-day time

2

limit.

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C. § 3044(a)(3)

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i. Whether Section 3044(a)(3) violates constitutional rights

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Section 3044(a)(3) provides that parolees are entitled to

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counsel at the state’s expense on a case-by-case basis, and only

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if the parolee is indigent and appears incapable of speaking

8

effectively in his or her own defense, given the complexity of the

9

issues and the parolee’s mental capacity. Plaintiffs argue that in

10

the

context

of

California’s

parole

revocation

system,

this

11

provision falls below the minimum requirements for appointment of

12

counsel set forth in Gagnon v. Scarpelli, 411 U.S. 778 (1973).

13

In Gagnon, the Supreme Court held that “the need for counsel

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must be made on a case-by-case basis in the exercise of sound

15

discretion by the state authority charged with the responsibility

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for administering the. . . parole system.” Id. at 790. Although the

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Court declined to adopt a “new inflexible Constitutional rule,” it

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held that there is a presumptive right to counsel

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20
21
22
23
24
25

“in cases where, after being informed of his right to
request counsel, the probationer or parolee makes such a
request, based on a timely and colorable claim (i) that he
has not committed the alleged violation of the conditions
upon which he is at liberty; or (ii) that, even if the
violation is a matter of public record or is uncontested,
there are substantial reasons which justified or mitigated
the violation and make revocation inappropriate, and that
the reasons are complex or otherwise difficult to develop
or present. In passing on a request for the appointment of
counsel, the responsible agency also should consider,
especially in doubtful cases, whether the probationer
appears to be capable of speaking effectively for himself.”

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15

1

Id. at 790-91.

2

Although the Court emphasized that “considerable discretion

3

must be allowed the responsible agency in making the decision”

4

about whether to appoint counsel, Section 3044(a)(3) falls short

5

of the due process requirements set forth in Gagnon. For one thing,

6

§ 3044(a)(3) limits the restricts the discretion of the responsible

7

agency, contrary to Gagnon’s holding that the agency be given

8

“considerable” discretion.3

9

Second, Gagnon requires that a parolee be “informed of his

10

right to request counsel.” Section 3044(a)(3) contains no such

11

requirement, and, read in conjunction with § 3044(a), parolees

12

would be deprived of the right to notice of the right to counsel

13

because it is not specifically mentioned in the statute.

14

Third, Gagnon provides for a presumptive right to counsel when

15

the parolee makes a colorable claim that he has not committed the

16

alleged

17

3044(a)(3) precludes a right to counsel in such cases, unless the

18

parolee appears incapable of speaking effectively in his own

19

defense, given the complexity of the charges and defenses.

20

ii. Whether the Injunction is necessary with respect to §

21

3044(a)(3)

22

violations

or

claims

colorable

mitigation.

Section

Having held that § 3044(a)(3) violates constitutional rights,

23
24
25
26

3

It might be argued that the Injunction also restricts the
discretion of the agency by requiring the appointment of counsel
for all parolees facing revocation. However, this restriction of
the agency’s discretion does not present the constitutional due
process problem that § 3044(a)(3) does.
16

1

the

2

Injunction are necessary to remedy this violation. As noted above,

3

the court has substantial flexibility when ordering injunctive

4

measures to remedy constitutional violations, so long as the

5

measures are narrowly tailored, and address and relate to the

6

violation.

7

court

The

turns

to

whether

Injunction

the

requires

relevant

appointment

provisions

of

counsel

in

for

the

all

8

parolees beginning at the Return to Custody Assessment (“RTCA”)

9

stage of the parole revocation proceeding. Inj. ¶ 11(b)(I). While

10

this

provision

11

Constitution, as interpreted in Gagnon, it may still be that, in

12

the context of California’s parole revocation system, the provision

13

is necessary in order to ensure compliance with the Constitution.

14

In this case, plaintiffs argue that appointment of counsel to
parolees

at

is

in

the

excess

required

17

determination is impracticable. Plaintiffs assert, in declarations

18

and through other evidence, that case-by-case determination of who

19

was entitled to counsel under the Americans with Disabilities Act

20

caused long delays before probable cause hearings were held. For

21

example, plaintiffs’ counsel heard from parolees who had been held

22

for more than 200 days without a hearing because of the backlog

23

created by case-by-case determinations for appointment of counsel.

24

See Huey Decl., Ex. W ¶76. Additionally, plaintiffs cite a 2003

25

Inspector

26

inability to readily identify parolees eligible for Americans with

states

because

the

California’s scheme, implementation of the Gagnon case-by-case

17

necessary

by

16

which

is

is

all

report,

stage

what

15

General’s

RTCA

of

“given

the

under

State’s

1

Disabilities Act accommodation, it is doubtful that the pre-

2

revocation hearings can be conducted within mandatory time limits.

3

On the contrary, adding another time-consuming procedure into an

4

already cumbersome and convoluted process could cause significant

5

additional delays.” Huey Decl., Ex. H at 32.

6

Plaintiffs explain that the Injunction’s provision of counsel

7

for all parolees solved the problem of unconstitutionally long

8

delays

9

Constitutional violation of denying counsel to those entitled to

10

in

the

hearing

process

without

creating

another

it.

11

The court finds that ¶ 11(b)(I) of the Injunction is a

12

properly tailored remedy, aimed at curing violations of due process

13

rights articulated in Gagnon. The remedy addresses and relates to

14

a Constitutional violation, specifically, Prop. 9's deprivation of

15

a parolee’s right to receive notice of his right to counsel, and

16

deprivation of counsel for parolees who have colorable claims that

17

they did not commit the alleged violation or of mitigation. The

18

fact that the Injunction will have the collateral affect of

19

providing counsel to parolees who might not be entitled to it under

20

the minimum due process requirements does not render the injunction

21

invalid. See Brown v. Plata, 131 S. Ct. at 1940.

22

D. Section 3044(b)

23

ii. Whether § 3044(b) is unconstitutional

24

Section 3044(b) provides:

25

The board is entrusted with the safety of victims and the
public and shall make its determination fairly,
independently, and without bias and shall not be influenced

26

18

1

3

by or weigh the state cost or burden associated with just
decisions. The board must accordingly enjoy sufficient
autonomy to conduct unbiased hearings, and maintain an
independent legal and administrative staff. The board shall
report to the Governor.

4

Previously, this court held that this section conflicted with

5

the Injunction because the Injunction, through the incorporated

6

Remedial Plan “provides that the defendants will utilize remedial

7

sanctions in lieu of initiating the parole revocation procedures

8

where appropriate.” Valdivia 603 F.Supp. 1283. The court noted that

9

“the decision to refer a parolee to a remedial sanction program is

10

informed, at least in part, by the goal of reducing the custodial

11

burden on the state. . . Section 3044(b) appears to conflict with

12

this goal” because it strips the parole board of the right to take

13

into consideration the cost and burden of re-imprisonment of

14

parolees. Id.

2

15

Defendants insist that there is no conflict between the

16

statute and the injunction because neither the Injunction nor the

17

Remedial Plan addresses which factors the Board should consider in

18

deciding whether remedial sanctions are appropriate in any given

19

case. Defs.’ Memo in Supp. of Mot. to Modify Injunction 9, ECF No.

20

1681. The court continues to conclude that § 3044(b) conflicts with

21

the stated goal of the Remedial Plan to reduce the number of prison

22

returns.

23

Additionally, § 3044(b) violates the Constitution. Morrisey

24

calls for a “neutral and detached” hearing body to make parole

25

revocation decisions. Morrissey at 489. See also

26

O'Bremski v. Maass, 915 F.2d 418, 423 (9th Cir. 1990)(The task of
19

1

parole

board

officials

is

“functionally

2

comparable

to

those

performed by the judiciary.”)

3

The court agrees with plaintiff that § 3044(b) violates

4

parolees right to a neutral decision-maker “by placing a thumb on

5

the

6

incarceration.” Pls.’ Opp’n to Mot. to Modify the Injunction 15,

7

ECF No. 1695. Under Morrisey, a neutral decision-maker is required

8

for determining both whether a parole violation has occurred, and

9

determining what will happen to the parolee after a violation has

10

been found. By entrusting the Board only with the safety of victims

11

and the public, § 3044 strips the Board of its duty to balance

12

those factors with a parolee’s liberty interest, which is the duty

13

of neutral decision-maker in this context.

14

scales

of

Moreover,

justice

the

and

Supreme

tipping

Court

the

recently

balance

towards

articulated

a

15

Constitutional requirement with respect to California’s prisons.

16

In Brown v. Plata, 131 S. Ct. 1910 (2011), the Court found that

17

severe overcrowding in California prisons is the primary cause of

18

persistent constitutional violations, “specifically the severe and

19

unlawful

20

provision of medical and mental health care.” Id. at *4. The Court

21

affirmed

22

overcrowding in its prisons in order to remedy the constitutional

23

violations. Although the injunction affirmed by the Court leaves

24

“the choice of means to reduce overcrowding to the discretion of

25

state officials,” such as new construction or sending prisoners out

26

of state, the Court noted that the State was likely to be required

treatment

a

of

remedial

prisoners

order

through

requiring

20

grossly

California

inadequate

to

reduce

1

to reduce the overall prison population by up to 46,000 prisoners.

2

Id. at *2-3. Section 3044's requirement that the parole board not

3

take

4

associated with re-incarceration of parole violators violates the

5

requirement from Plata that California work towards reducing its

6

prison population.

into

consideration

the

cost

and

burdens

to

the

state

7

No provision currently in the Injunction explicitly remedies

8

the constitutional violation created by § 3044(b), although the

9

defendants remain bound by Morrisey’s requirement for a neutral

10

decisionmaker in probable cause and parole revocation hearings.

11

E. Hearsay Evidence in Revocation Hearings

12

i. Whether Sections 3044(a)(5) and (a)(6) violate the

13

Constitution

14

In the March 2009 order, this court held that § 3044(a)(5) and

15

(a)(6) could be construed in a way so as not to conflict with the

16

Injunction.

17

Section 3044(a)(5) reads: “Parole revocation determinations

18

shall be based upon a preponderance of evidence admitted at

19

hearings including documentary evidence, direct testimony, or

20

hearsay evidence offered by parole agents, peace officers, or a

21

victim.” The March 2009 order stated that this section could be

22

reasonably construed “as setting forth a non-exhaustive list of

23

evidence that may be relied on if it is admitted.” Valdivia, 603

24

F.Supp.2d at 1283. Use of the word ‘including’ indicates that the

25

list that follows is non-exhaustive, and that other types of

26

evidence

may

be

considered.

The
21

court

now

reconsiders

its

1

conclusion that § 3044(a)(5) does not conflict with the Injunction.

2

Because § 3044(a)(5) allows the use of unconditional hearsay

3

evidence

4

specifies that the use of hearsay is governed by applicable law,

5

the court now concludes that there is a conflict.

in

parole

revocation

hearings,

and

the

Injunction

6

Section 3044 (a)(6) reads: “Admission of the recorded or

7

hearsay statement of a victim or percipient witness shall not be

8

construed to create a right to confront the witness at the

9

hearing.” The March 2009 Order held that “section 3044(a)(6) may

10

reasonably be read to provide that the admission of hearsay

11

evidence against the parolee does not alone create a confrontation

12

right. . . [but that] the admission of hearsay evidence itself is

13

guided by the confrontation right.”

14

1284. In other words, hearsay is only admissible in the first place

15

after

16

considerations.

weighing

the

confrontation

Valdivia 603 F.Supp.2d at

right

against

other

17

Although the court did not, in the March 2009 Order, reach the

18

question of whether 3044(a)(5) and (a)(6) violate the Constitution,

19

the Ninth Circuit now directs the court do determine whether any

20

provision of Prop. 9 violates the Constitution.

21

Section 3044(a)(5) allows the unconditional use of hearsay
in

parole

revocation

hearings.

evidence

23

parolees’ “right to confront and cross-examine adverse witnesses

24

at a revocation hearing, unless the government shows good cause for

25

not producing the witnesses.” United States v. Comito, 177 F.3d

26

1166, 1170 (9th Cir. 1999). “In determining whether the admission
22

Morrissey

guaranteed

22

1

of hearsay evidence violates the releasee's right to confrontation

2

in a particular case, the court must weigh the releasee's interest

3

in his constitutionally guaranteed right to confrontation against

4

the Government's good cause for denying it.” Id. Section 3044(a)(5)

5

does not permit balancing of these interests. Accordingly, it

6

violates the Constitution.

7

As to § 3044(a)(6), applying the principle that the court must

8

construe a statute to avoid a constitutional infirmity so long as

9

such construction is not ‘plainly contrary’ to the intent of the

10

legislature, Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg &

11

Constr. Trades Council, 485 U.S. 568, 575 (1988), the court now

12

holds that §3044 (a)(6) does not violate the Constitution. As noted

13

above, a reasonable construction of § 3044(a)(6) does not strip a

14

parolee of his Constitutional confrontation right. It simply states

15

that the introduction of hearsay evidence does not itself “create”

16

a confrontation right.4

17

ii. Whether the Injunction is necessary to remedy the violation

18

Paragraph 24 of the Injunction provides: the use of hearsay

19

evidence shall be limited by the parolee’s confrontation rights in

20

the manner set forth under controlling law as currently stated in

21

United States v. Comito. . .”

22

Defendants do not, and could not argue that an injunctive

23
4

24
25
26

This construction might give rise to the argument that the court has
reduced § 3044(a)(6) to mere surplusage. Indeed, courts must be “reluctant to
treat statutory terms as surplusage.” Duncan v. Walker, 121 S. Ct. 2120, 2125
(2001). That reluctance is overcome, however, by the constitutional avoidance
mandate articulated in Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg &
Constr. Trades Council, 485 U.S. 568, 575 (1988).

23

1

measure that simply incorporates prevailing constitutional law is

2

beyond the scope of the court’s discretion. The court concludes

3

that

4

constitutional violation created by § 3044(a)(5)’s allowance for

5

unconditional use of hearsay evidence.

6

F. Whether § 3044 is Severable

7

¶

24

of

Having

the

found

Injunction

that

§§

is

necessary

3044(a),

to

remedy

3044(a)(1),

the

3044(a)(2),

8

3044(a)(3), 3044(a)(5), and 3044(b) violate the Constitution, the

9

court turns to whether the statute may be severed, preserving the

10

non-offending provisions.

11

Federal courts apply state law governing severability when

12

determining whether a state statute is severable. See, e.g.,

13

Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 506 (U.S. 1985).

14

Under California law, a state statute, including one passed by

15

initiative such as Prop. 9, is severable if the invalid provision

16

is

17

Calfarm Ins. Co. v. Deukmejian, 48 Cal. 3d 805, 821 (Cal. 1989).

18

See also, Qwest Communs., Inc. v. City of Berkeley, 433 F.3d 1253

19

(9th

20

severability

21

mechanically, and grammatically to sever the invalid portion from

22

the valid portions of an enactment ordinarily will allow severance

23

but only if the remainder of the enactment is complete in itself

24

and

25

"Partial invalidation [of a state statute] would be improper if it

26

were

“grammatically,

Cir.

would

2006)

(“Under

clause

have

contrary

functionally,

been

to

and

California

coupled

adopted

legislative

with

law,
the

without

intent
24

volitionally

presence

ability

the

in

the

of

a

functionally,

invalid

the

separable.”

portion.”).

sense

that

the

1

legislature had passed an inseverable Act or would not have passed

2

it had it known the challenged provision was invalid." Brockett v.

3

Spokane Arcades, Inc., 472 U.S. 491, 506 (U.S. 1985).

4
5
6
7
8
9

Proposition 9 does include a severability clause, which
provides:
“If any provision of this act, or part thereof, or the
application thereof to any person or circumstance is for
any reason held to be invalid or unconstitutional, the
remaining provisions which can be given effect without the
invalid or unconstitutional provision or application shall
not be affected, but shall remain in full force and
effect.”

10

November 4, 2008 Voter Information Guide (“Voter Information

11

Guide”) § 8, Ex. 1 to Def.’s Request for Judicial Notice, ECF No.

12

1682. But such a clause is not dispositive; the court must look to

13

whether the invalid portions are “grammatically, functionally, and

14

volitionally separable” from what would remain.

15
16
17

If these provisions are severed, the only remaining text of
§ 3044 would read:

20

(4) In the event the parolee's request for counsel, which
shall be considered on a case-by-case basis, is denied, the
grounds for denial shall be stated succinctly in the
record.
(6) Admission of the recorded or hearsay statement of a
victim or percipient witness shall not be construed to
create a right to confront the witness at the hearing.

21

This text is not “complete in itself,” and would certainly not have

22

been adopted by the voters on its own without the invalid portions.

23

Prop. 9, or

24

California voters in order to “provide victims with rights to

25

justice and due process [and to] invoke the rights of families of

26

homicide

18
19

“the Victims’ Bill of Rights Act” was passed by

victims

to

be

spared
25

the

ordeal

of

prolonged

and

1

unnecessary suffering, and to stop the waste of millions of

2

taxpayer dollars. . .” Voter Information Guide § 3. The remaining

3

text does not serve this, or any, purpose. Section § 3044(a), which

4

this court holds to be invalid, attempts to limit the procedural

5

rights to those listed in the sections that follow it. Without §

6

3044(a),

7

correctional facility. . . shall. . . be entitled to procedural

8

rights other than the following...” the remaining text of § 3044

9

is

which

meaningless.

states

“no

person

Accordingly,

the

paroled

invalid

from

a

California

provisions

are

not

10

“volitionally” separate from the remaining portions, and no portion

11

of the statute can be preserved through severing.

12

IV. Conclusion

13

For the foregoing reasons, the court ORDERS as follows:

14

[1] Defendant’s Motion to Enforce Penal Code § 3044 and

15

to Modify the Permanent Injunction, ECF No. 1680, is

16

DENIED, except that Injunction ¶¶ 11(b)(iv)and 23 are

17

modified to reflect that defendants shall provide a

18

revocation hearing no later than the 45th calendar day

19

after the placement of the parole hold.

20

[2] Plaintiff’s Motion to Enforce the Injunction, ECF

21

No. 1684, is GRANTED, except that the injunction is

22

modified as stated above.

23

IT IS SO ORDERED.

24

DATED: January 23, 2012.

25
26
26