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
5
background and subsequent developments follows.
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Plaintiffs filed this class action in 1994, challenging
7
California’s parole revocation process on constitutional grounds.
8
In 2002, this court granted partial summary judgment to plaintiffs,
9
holding that the parole revocation process violated plaintiffs’ due
10
process rights. Valdivia v. Davis, 206 F. Supp. 2d 1068 (E.D. Cal.
11
2002). Specifically, the 2002 order held that the system in place
12
at the time “allowing delay of up to forty-five days or more before
13
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
2
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
10
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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1
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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1
federal injunctions.” Valdivia v. Schwarzenegger, 599 F.3d 984, 995
2
(9th Cir. 2010). This court received the mandate on September 22,
3
2010, and briefing by the parties was completed in October 2011.
4
II. Standard to Enforce or Modify Injunction
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A district court has continuing jurisdiction to enforce its
6
own injunctions. Crawford v. Honig, 37 F.3d 485, 488 (9th Cir.
7
1994). “An injunction often requires continuing supervision by the
8
issuing court and always a continuing willingness to apply its
9
powers and processes on behalf of the party who obtained that
10
equitable relief.” System Federation No. 91 Railway Employees'
11
Dep't v. Wright, 364 U.S. 642, 647 (1961).
12
Under Federal Rule of Civil Procedure 60(b)(5), a court may
13
relieve a party from its obligations under an order of the court
14
if prospective application of the order is no longer equitable. See
15
Sys. Fed'n No. 91 v. Wright, 364 U.S. 642, 646-47. Modification of
16
an injunction, including a consent decree, is considered equitable
17
when there has been a significant change in relevant law or factual
18
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.
22
consider whether the modification is appropriately tailored to the
23
changed circumstance. Id.
24
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
26
law. See Clark v. Coye, 60 F.3d 600, 605 (9th Cir. 1995). However,
6
1
merely
2
injunction, is insufficient to deny modification of the injunction,
3
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
6
The Ninth Circuit has directed the court to determine whether
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“any aspect of the California parole revocation procedures, as
8
modified by Proposition 9, violated constitutional rights, [and
9
whether] the Injunction was necessary to remedy a constitutional
10
violation.” Valdivia v. Schwarzenegger, 599 F.3d 984, 995 (9th Cir.
11
2010). Without such findings, the injunction must be reconciled
12
with California law as expressed in Prop. 9.
13
The starting place for determining the due process rights of
14
individuals prior to parole revocation is Morrissey v. Brewer, 408
15
U.S. 471 (1972). There, the Supreme Court held that, although
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parolees enjoy only “conditional liberty,” termination of that
17
liberty constitutes a “grievous loss” requiring “some orderly
18
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
22
committed a violation of his parole, and the other a somewhat more
23
comprehensive hearing prior to the making of the final revocation
24
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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1
the hearing and its purpose, including the nature of the alleged
2
violations; the ability to speak on his own behalf, present
3
letters, documents, or witnesses; the ability, in some cases, to
4
question any person who has given adverse information on which
5
parole revocation is to be based; a written summary of the
6
proceedings; and a decision on the record. Morrisey 485-487.
7
Defendants ask the court to restrict its analysis to the four
8
provisions of Prop. 9 that the court has already found to be in
9
plain conflict with the Injunction, namely § 3044(a), § 3044(a)(3),
10
§ 3044(a)(2), and § 3044(b). See Valdivia, 603 F.Supp.2d at 1282.
11
Plaintiffs assert, correctly in the court’s view, that the Ninth
12
Circuit has directed the court to determine whether any provisions
13
of § 3044 violate constitutional rights.
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A. Section 3044(a)
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i. Whether § 3044(a) violates constitutional rights.
16
California Penal Code § 3044(a) provides:
17
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
25
Clause and other federal laws obligate the State to provide when
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8
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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
3
additional procedural rights beyond what is provided for in § 3044.
4
§ 3044(a) provides that California parolees are entitled only
5
to an enumerated list of procedural rights that does not include
6
all of the procedures that the Supreme Court has determined to be
7
required under the Due Process Clause. Defendants argue that §
8
3044(a) merely makes clear that under California law, parolees are
9
not entitled to any process other than the Constitutional minimums.
10
Defs.’ Opp’n 13, ECF No. 1694. Defendants assert “although section
11
3044 does not exhaustively list in detail every hearing procedure
12
required
13
requirements not specifically listed in the statute through the
14
obligation to provide a ‘hearing.’” Id. Defendants’ argument is
15
untenable under a plain reading of the section. It is hard to see
16
how the words “no person. . . shall be entitled to procedural
17
rights other than the following. . .,” followed by a short
18
enumerated list can be interpreted as incorporating any procedures
19
that aren’t specifically listed. By its plain terms, Prop. 9
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precludes
21
statute.
22
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
23
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
3
Section 3044(a) sets forth parolees’ rights with respect to
4
probable cause and evidentiary revocation hearings: “(1) A parolee
5
shall be entitled to a probable cause hearing no later than 15 days
6
following his or her arrest for violation of parole. (2) A parolee
7
shall be entitled to an evidentiary revocation hearing no later
8
than 45 days following his or her arrest for violation of parole.”
9
Plaintiffs contend that this section deprives parolees of due
10
process rights as set forth in Morrisey. Defendants assert that all
11
of those rights are incorporated into the statue by use of the word
12
“hearing.” The court has already explained why defendants’ position
13
is contrary to the plain meaning of the statute.
14
In Morrisey v. Brewer, 408 U.S. 471 (1972), the Supreme Court
15
set forth the minimum requirements of due process for probable
16
cause
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parolees are entitled to a hearing “conducted at or reasonably near
18
the place” of the alleged violation, “as promptly as convenient
19
after arrest”; notice that the hearing will take place and of its
20
purpose;
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“independent officer”; the right to speak on his own behalf and
22
bring letters, documents, and witnesses; a written summary of the
23
proceedings; and a decision based on stated reasons and cited
24
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)
10
1
disclosure to the parolee of evidence against him; (c) opportunity
2
to be heard in person and to present witnesses and documentary
3
evidence; (d) the right to confront and cross-examine adverse
4
witnesses (unless the hearing officer specifically finds good cause
5
for not allowing confrontation); (e) a "neutral and detached"
6
hearing body such as a traditional parole board, members of which
7
need not be judicial officers or lawyers; and (f) a written
8
statement by the factfinders as to the evidence relied on and
9
reasons
for
revoking
parole.”
Id.
at
489.
Additionally,
the
10
revocation hearing must take place within a “reasonable time after
11
the parolee is taken into custody.” Id.
12
The bare requirements in § 3044 fall short of the minimum due
13
process set forth in Morrisey. The court need not list each element
14
missing from § 3044,2 but they include notice, a written summary
15
of the proceedings and of the revocation decision, the opportunity
16
to present documentary evidence and witnesses, and disclosure to
17
the parolee of the evidence against him. Indeed, in this very case,
18
the court already held that “the opportunity to present documentary
19
evidence, the opportunity to present witnesses, and a conditional
20
right to confront adverse witnesses are constitutionally-required
21
components of due process.” July 23, 2003 Order 15, ECF No. 796.
22
Accordingly, the court finds that Sections 3044(a)(1)and 3044(a)(2)
23
are unconstitutional.
24
Defendants focus on the time frames set forth in these
25
2
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Such a list would read almost identical to the complete list
of requirements already cited from Morrisey.
11
1
sections. Doing so is understandable, since the 10- and 45- day
2
time limits are the only thing guaranteed in the statute at issue.
3
Plaintiffs argue that this court has already held that 45 days is
4
an unconstitutionally long delay between the commencement of a
5
parole hold and the revocation hearing. That holding, however, was
6
in the context of a “unitary” revocation scheme–one that does not
7
include a preliminary probable cause hearing. Valdivia v. Davis,
8
206 F. Supp. 2d 1068, 1078 (E.D. Cal. 2002). In the scheme under
9
review at the time, “at no time prior to the unitary revocation
10
hearing
d[id]
11
position to an independent decision-maker or to challenge, in any
12
manner, whether the parole officer had probable cause for the
13
parole hold and resulting detention.” Id. at 1071. In that context,
14
this court held “California's system allowing a delay of up to
15
forty-five days or more before providing the parolee an opportunity
16
to be heard regarding the reliability of the probable cause
17
determination does not” meet constitutional muster. Id. at 1078.
18
The
19
constitutional limits when a Morrisey-compliant preliminary hearing
20
has been held in the interim. In Morrisey itself, the Supreme Court
21
held
22
unreasonable” for a revocation hearing when a preliminary hearing
23
has been held promptly after arrest. Morrisey, 408 U.S. at 489.
24
However, as noted, the revocation scheme at issue here does not
25
guarantee a prompt probable cause hearing with all of the minimum
26
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
3
of the procedural rights guaranteed in Morrisey.
4
iii. Whether the Injunction is necessary with respect to §
5
3044(a)(1) and (a)(2)
6
As noted by the Ninth Circuit in this case, “the scope of
7
federal injunctive relief against an agency of state government
8
must always be narrowly tailored to enforce federal constitutional
9
and statutory law only.” Valdivia, 599 F.3d at 995 (internal
10
citation omitted). The narrow tailoring requirement, however, does
11
not deprive a district court of its “substantial flexibility” to
12
craft remedies once constitutional violations are found. Brown v.
13
Plata, 131 S. Ct. 1910, 1944 (2011). Injunctive relief “does not
14
fail narrow tailoring simply because it will have positive effects
15
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,
18
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:
3
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
10
waives or seeks a continuance of the probable cause hearing; within
11
35 days of the placement of the parole hold, defendants shall
12
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
17
that this court already held 45 days to be unreasonable fails. In
18
Morrisey, the Court found expressly that two months is not an
19
unreasonable delay for completing a revocation hearing, assuming
20
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
24
3044(a)(1) and (a)(2), except that defendants shall provide a
25
revocation hearing no later than the 45th calendar day after the
26
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.
3
C. § 3044(a)(3)
4
i. Whether Section 3044(a)(3) violates constitutional rights
5
Section 3044(a)(3) provides that parolees are entitled to
6
counsel at the state’s expense on a case-by-case basis, and only
7
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
14
must be made on a case-by-case basis in the exercise of sound
15
discretion by the state authority charged with the responsibility
16
for administering the. . . parole system.” Id. at 790. Although the
17
Court declined to adopt a “new inflexible Constitutional rule,” it
18
held that there is a presumptive right to counsel
19
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.”
26
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
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