Valdivia, et al v. Schwarzenegger, et al

Filing 1845

ORDER signed by Judge Lawrence K. Karlton on 7/2/2013 ORDERING The court FINDS that this case is MOOT. ACCORDINGLY the court DECLINES to adopt the Thirteenth Report of the Special Master on the Status of Conditions of the Remedial Order 1783 A fort hcoming order will address the parties' outstanding requests to seal documents. The parties and the Special Master are DIRECTED to file final motions, if any, for fees and costs within twenty eight 28 days of the date of entry of this order. Upon resolution of these motions, the court will decertify the class and dismiss this case. (Reader, L)

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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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/
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In 1994, plaintiffs commenced this action, which challenged

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the

constitutionality

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revocation system. In 2011, California began enacting legislation,

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commonly known as “Realignment,” that significantly altered the

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state’s criminal justice system. The question before this court is

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whether, in light of Realignment, this lawsuit remains the proper

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vehicle

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guaranteed due process protections. Having carefully considered the

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question, the court concludes that this case became moot as of July

for

ensuring

of

that

California’s

parolees

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then-existing

receive

parole

Constitutionally-

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1, 2013, when the new parole revocation system was scheduled to go

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fully into effect. Accordingly, for the reasons set forth below,

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the plaintiff class will be decertified and this matter dismissed.

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I. BACKGROUND

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A. History of the litigation

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On

May

2,

1994,

plaintiffs

filed

the

instant

lawsuit,

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challenging California’s parole revocation procedures under the

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Fourteenth Amendment. Plaintiffs’ initial complaint alleged that

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“[t]he

Defendants

and

by

and

through

the

Department

of

10

Corrections . . . continue a practice of revocation of parole and

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remand of parolees, in violation of law as alleged herein, which

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practice has been continuing for many years.” (Complaint ¶ 48, ECF

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No. 1.) Class certification was sought on the grounds that “[i]n

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general, the common questions of law and fact involve the summary

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remand to prison of parolees without due consideration of the right

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to counsel and without due process of law, in violation of Gagnon

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v. Scarpelli, [411 U.S. 778 (1973)] and Morrissey v. Brewer, [408

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U.S. 471 (1972)].” (Id. ¶ 58.)

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On December 1, 1994, the court certified a plaintiff class

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consisting of California parolees (1) who are at large; (2) who are

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in custody as alleged parole violators awaiting revocation of their

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parole status; or (3) who are in custody having been found in

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violation of parole. (Order, ECF No. 76)

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The parties engaged in discovery for several years thereafter.

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On June 13, 2002, the court granted partial summary judgment in

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favor of plaintiffs, finding that California’s parole revocation
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hearing system failed to safeguard plaintiffs’ procedural due

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process rights under Morrissey, 408 U.S. at 487–90, and Gagnon, 411

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U.S. at 786. The court’s order emphasized that, in order to ensure

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adequate due process, probable cause hearings must be both accurate

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and promptly-held. See Valdivia v. Davis, 206 F. Supp. 2d 1068

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(E.D. Cal. 2002).

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Four months later, the court ordered defendants to file a

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proposed

9

violations. The court also directed the parties to meet and confer

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so that defendants could adapt the proposed remedial plan into a

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proposed remedial order to be presented to the court. (Order, Oct.

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18, 2002, ECF No. 742.)

remedial

plan

to

address

identified

due

process

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After some delay, defendants filed a proposed remedial plan,

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to which plaintiffs objected. (ECF No. 784.) At the hearing on

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plaintiff’s objections, defendants indicated “that they would

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appreciate

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Constitution requires with respect to the timing and substance of

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the preliminary parole revocation hearing.” (Order at 3, July 23,

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2003, ECF No. 796.) In a subsequent order, the court initially

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expressed its hesitation at so doing, in light of the principle

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that “due process is flexible and calls for such procedural

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protections as the particular situation demands.” Morrissey, 408

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U.S. at 481. Nevertheless, in order to facilitate the development

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of an adequate remedy, the court undertook a comprehensive review

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of the case law surrounding the promptness of probable cause

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hearings in the parole context, as well as in the context of other

guidance

from

the

court

3

on

precisely

what

the

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constitutional deprivations, and advised as follows:
[A] period of ten days strikes a reasonable balance
between inevitable administrative delays and the
state’s interest in conducting its parole system, on
the one hand, and the liberty interests of parolees,
on the other. I conclude that the Constitution simply
does not tolerate the state’s detaining parolees for
over ten days, with all the attendant disruptions such
detention entails, without affording a preliminary
hearing to determine whether there is probable cause
for the detention. (Id. at 13.)1

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The court then set forth the following minimum standards for

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probable cause hearings: that they be conducted by a neutral

10

decisionmaker, that parolees have an opportunity to both present

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documentary evidence and witnesses, and to cross-examine adverse

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witnesses, and that the hearing’s results be documented in a

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written report. Alternatively, defendants could hold a unified

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hearing that was sufficiently prompt and the content of which met

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the due process requirements for both probable cause and revocation

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hearings. (Id. at 15-16.)

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Ultimately, the parties filed a stipulated order for permanent

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It absolutely does not follow from this determination that
detention for periods of ten days or less, without notice and a
preliminary hearing, is constitutionally adequate in all
circumstances. The ten day limit was a highly context-specific
determination; per Morissey, 408 U.S. at 481, it was the level of
“procedural protections as the particular situation demand[ed].”
The principal consideration in determining whether notice and
hearing is sufficiently timely is that “[t]he effect of detention
itself, in its disruption of the parolee’s family relationship,
job, and life, is sufficiently significant [so as] to require”
procedural due process safeguards. Valdivia, 206 F. Supp. 2d at
1078. “The process due must include procedures which will prevent
parole from being revoked because of ‘erroneous information or
because of an erroneous evaluation.’” Id. at 1074 (quoting
Morrissey, 408 U.S. at 484).
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injunctive relief, which the court entered. (Order, March 8, 2004

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(“Injunction”), ECF No. 1034.) The parties to the Injunction were

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the previously-certified plaintiff class and “the [defendant] state

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officials responsible for the policies and procedures by which

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California conducts parole revocation proceedings.” (Injunction

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¶ 8.) All of these defendants were members of the state’s executive

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branch. Critical provisions of the Injunction include:

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1.

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not later than three business days from the placement

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Notice of charges and rights, to be served on parolees

of a parole hold. (Injunction ¶ 11(b)(iii).)
2.

Probable cause hearings, to be held no later than 10

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business days after parolees are served notice of

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charges and rights. (Injunction ¶ 11(d).)

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3.

Appointment of counsel for all parolees at the

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beginning of the Return to Custody Assessment2 stage

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of the revocation proceedings. (Injunction ¶

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11(b)(i).)

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4.

Expedited probable cause hearings, if appointed

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counsel makes a sufficient offer of proof of a

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complete defense to all parole violation charges.

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(Injunction ¶ 11(b)(i).)

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5.

The ability of parolees’ counsel to subpoena and
present witnesses and evidence to the same extent and

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2

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“Return to Custody Assessment” refers to “the practice by
which Defendants offer a parolee a specific disposition in return
for a waiver of the parolee’s right to a preliminary or final
revocation hearing, or both.” (Injunction ¶ 9(d).)
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under the same terms as the state. (Injunction ¶ 21.)

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6.

Adequate allowance, at probable cause hearings, for

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parolees to present evidence to defend or mitigate

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against the charges and proposed disposition. Such

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evidence may be presented through documentary evidence

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or through the charged parolee’s testimony, either or

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both of which may include hearsay testimony.

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(Injunction ¶ 22.)

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7.

Limitations on the use of hearsay evidence at hearing

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in light of parolees’ confrontation rights, as

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provided for in United States v. Comito, 177 F.3d 1166

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(9th Cir. 1999). (Injunction ¶ 24.)

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8.

Parole revocation hearings to be held no later than 35

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calendar days from the date of placement of a parole

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hold. (Injunction ¶¶ 11(b)(iv), 23.)

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The

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assistance

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impairments, training of appointed counsel, and the handling of

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confidential information. The Injunction does not specify an end

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date for court supervision, providing instead that “[t]he Court

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shall retain jurisdiction to enforce the terms of this Order. The

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Court shall have the power to enforce [these terms] through

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specific performance and all other remedies permitted by law or

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equity.” (Injunction ¶ 28.)

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Injunction
for

Defendants

also

addressed

parolees

topics

with

subsequently

such

as

communicative

moved,

provision
or

successfully,

of

cognitive

for

the

appointment of a Special Master, and on December 16, 2005, the
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court appointed Chase Riveland to that position. (ECF Nos. 1198,

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1213, 1245.) The Special Master has subsequently filed thirteen

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reports with the court addressing implementation of the Valdivia

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Injunction, as well as the court’s subsequent orders herein. (ECF

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Nos. 1302, 1335, 1388, 1479, 1483, 1539, 1570, 1585, 1647, 1730,

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1750, 1783.)3

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B. Proposition 9

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On November 4, 2008, California voters passed Proposition 9,

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entitled “Victims’ Bill of Rights Act of 2008: Marsy’s Law.”

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Proposition 9’s amendments to the California Penal Code altered a

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number of the parameters for the parole revocation system that had

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been

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enforcement of portions of Penal Code § 3044 (enacted by Prop. 9)

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as conflicting with provisions of the Injunction; defendants cross-

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moved to modify the Injunction to conform to Proposition 9.

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Valdivia v. Schwarzenegger, 603 F. Supp. 2d 1275 (E.D. Cal. 2009).

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After hearing, the court denied defendants’ motion, and granted

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plaintiffs’ motion in substantial part. Id. On appeal, the Ninth

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Circuit held that the court had erred by failing to make an

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“express determination that any aspect of the California parole

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revocation procedures, as modified by Proposition 9, violated

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constitutional rights, or that the Injunction was necessary to

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remedy

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

mandated

a

by

the

Injunction.

constitutional

Plaintiffs

violation

.

.

.

moved

.”

to

enjoin

Valdivia

v.

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3

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The Special Master’s Ninth Report does not appear to have
been docketed.
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court determined that the following aspects of Cal. Penal Code §

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3044,

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unconstitutional:

as

enacted

by

Section

5.3

of

Proposition

9,

were

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(1) Holding probable cause hearings no later than 15 days

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after the parolee’s arrest for parole violations “did not

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guarantee a prompt probable cause hearing with all of the

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minimum process set forth in Morrisey.” Valdivia v. Brown,

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No. S-94-671-LKK-GGH, 2012 WL 219342 at *6, 2012 U.S. Dist.

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LEXIS 8092 at *21 (E.D. Cal. Jan. 24, 2012).

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(2) Providing parolees with counsel on a case-by-case

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basis, and even then, only for those parolees who were both

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indigent and “incapable of speaking effectively in [their]

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own defense,” both “deprived [parolees] of the right to

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notice of the right to counsel” and failed, under Gagnon,

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to provide for “a presumptive right to counsel when the

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parolee makes a colorable claim that he has not committed

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the alleged violations or claims colorable mitigation.”

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Id., 2012 WL 219342 at *8, 2012 U.S. Dist. LEXIS 8092 at

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*26. The court also found that ¶ 11(b)(i) of the

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Injunction, under which all parolees are appointed counsel

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beginning at the Return to Custody Assessment stage, “is a

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properly tailored remedy . . . [which] addresses and

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relates to a Constitutional violation[.]” Id., 2012 WL

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219342 at *9, 2012 U.S. Dist. LEXIS 8092 at *28.

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(3) Modifying the decision criteria for the Board of Parole

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Hearings (“BPH”), e.g., by “entrust[ing]” BPH “with the

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safety of victims and the public” and including

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requirements that BPH “not be influenced by or weigh the

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state cost or burden associated with just decisions,” was

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unconstitutional under Morrissey in its violation of

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parolees’ right to a neutral decisionmaker, and under Brown

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v. Plata, __ U.S. __, 131 S. Ct. 1910 (2011) in its

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interference with California’s constitutionally-mandated

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efforts to reduce its prison population. Id., 2012 WL

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219342 at *10, 2012 U.S. Dist. LEXIS 8092 at *31-32.

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(4) Finally, allowing the unconditional use of hearsay

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evidence in parole revocation hearings was

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unconstitutional, as it did not permit the balancing of

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“the releasee’s interest in his constitutionally guaranteed

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right to confrontation against the Government’s good cause

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for denying it.” Id., 2012 WL 219342 at *11, 2012 U.S.

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Dist. LEXIS 8092 at *34 (quoting Comito, 177 F.3d at 1170

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(9th Cir. 1999)).

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The court ultimately granted plaintiffs’ motion to enforce the

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Injunction, though it did modify its terms to specify, consonant

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with Proposition 9, that parole revocation hearings were to be

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held no later than 45 days after placement of the parole hold.

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Id., 2012 WL 219342 at *12, 2012 U.S. Dist. LEXIS 8092 at *39.

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////
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C. Realignment

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From the inception of this lawsuit until the present, the

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California Department of Corrections and Rehabilitation (“CDCR”)

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has been largely responsible for the parole system’s functioning.

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BPH, a board operating under the auspices of CDCR, has been

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responsible for conducting probable cause and parole revocation

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hearings, and for functions such as issuing arrest warrants for

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suspected

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Operations (“DAPO”) has overseen much of the rest of the parole

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parole

violators.

CDCR’s

Division

of

Adult

Parole

system.

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This system began to change on April 4, 2011, when the

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Governor signed Assembly Bill 109, entitled “The 2011 Realignment

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Legislation

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transferred substantial responsibilities for the parole system to

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county authorities, and called for state courts “to perform various

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parole-related

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discharge, retention, and revocation proceedings[,] and modifying

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terms

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Administrative Office of the Courts, May 20, 2011, Decl. Ernest

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Galvan, Ex. 2 at 4, ECF No. 1829-3.) Subsequent legislative

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enactments5 have narrowed the state courts’ role to conducting

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parole revocation proceedings, and have clarified the counties’ and

and

Addressing

functions,

conditions

Safety.”4

Public

of

including

parole

.

.

.

AB

.

.

.

.”

109,

inter

conducting

alia,

parole

(Memorandum

from

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4

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Cal. Stats. 2011, ch. 15.

5

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See, e.g., AB 117, Cal. Stats. 2011, ch. 39; AB 116, Cal.
Stats. 2011, ch. 136; AB 17, Cal. Stats. 2011-2012, 1st Ex. Sess.,
ch. 12; AB 1470, Cal. Stats. 2012, Ch. 24; SB 1144, Cal. Stats.
2012, ch. 867; SB 1023, Cal. Stats. 2012, ch. 43.
10

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the state’s respective responsibilities in the post-Realignment

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parole system. Briefly, beginning on July 1, 2013, this system is

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expected to function as set out below.

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DAPO will supervise the parole of individuals convicted of any

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of the following: (1) serious felonies (as described in Cal. Penal

6

Code § 1192.7(c)), (2) violent felonies (as described in Cal. Penal

7

Code § 667.5), (3) “third strikes,” (4) crimes where the person is

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classified as a High Risk Sex Offender, and (5) crimes where the

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person is required, as a condition of parole, to undergo treatment

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by the Department of Mental Health. Cal. Penal Code § 3000.08(a).6

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DAPO will also continue to supervise parolees who were under its

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supervision prior to July 1, 2013. State courts will be responsible

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for hearing petitions for parole revocation and imposing parole

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terms for these individuals. Individuals paroled from life terms

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in prison will also be under DAPO supervision, and subject to the

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jurisdiction of BPH for purposes of parole revocation hearings.

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Cal. Penal Code. § 3000.1.7

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All other individuals subject to parole will be released to

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Postrelease Community Supervision (“PRCS”), to be supervised by

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county probation departments. Cal. Penal Code § 3000.08(b). Those

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prisoners who were sent to county jails to complete their terms in

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24

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All citations to Cal. Penal Code § 3000.08 are to the
version operative on July 1, 2013.
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26

The parties have long disputed whether so-called “lifers”
are members of the Valdivia class. The court has never been called
upon to decide this issue, and finds it unnecessary to do so
herein.
11

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the initial stage of Realignment (which began on October 1, 2011)

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are similarly subject to PRCS, rather than DAPO parole supervision.

3

(Viera Rose Decl. ¶ 6., ECF No. 1825.) The parties appear to agree

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that individuals subject to PRCS should not be considered part of

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the Valdivia class.8 For convenience, the court will use the term

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“parolee” hereinafter to refer to those individuals subject to DAPO

7

supervision after July 1.

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9

If DAPO suspects a parolee of having violated the terms and
conditions of parole, it may do one of the following:

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(1) Return the parolee to custody without a warrant (i.e.,

11

place a “parole hold” on the parolee). Cal. Penal Code

12

§§ 1203.2(a), 3000.08(c), 3056; or

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(2) Seek a warrant from the state court for the parolee to

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be returned to custody. Cal. Penal Code §§ 1203.2(a),

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3000(b)(9)(A), 3000.08(c). The state court has the

16

authority to summarily revoke parole at this stage. Cal.

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Penal Code § 1203.2(a).

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Once a parolee is in custody, DAPO determines whether there is

19

probable cause to believe “that [he or she] has committed a

20

violation of law or violated his or her conditions of parole.” Cal.

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Penal Code § 3000.08(d). If it so finds, DAPO may either apply

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26

8

Defendants explicitly assert that “[i]ndividuals released
to PRCS are not parolees.” (Defendants’ Opening 2, ECF No. 1824.)
Plaintiffs implicitly concede this point, as their briefing
addresses those elements of the parole revocation process that
remain under the jurisdiction of DAPO and/or BPH.
12

1

intermediate sanctions (including “flash incarceration”)9,10 without

2

involvement of the state court, or apply to the state court for

3

parole revocation. Cal. Penal Code § 3000.08(d)-(f). Before seeking

4

parole revocation, DAPO must determine that intermediate sanctions

5

are

6

§ 3000.08(f).

“not

appropriate”

for

the

parolee.

Cal.

Penal

Code

7

DAPO initiates the parole revocation process by filing a

8

petition with the state court, which must include “a written report

9

that

contains
the

additional
relevant

information

terms

and

regarding

conditions

the

of

petition,

10

including

parole,

the

11

circumstances of the alleged underlying violation, the history and

12

background of the parolee, and any recommendations.” Id. The

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15
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17
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19
20
21
22
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24
25
26

9

Cal. Penal Code § 3000.08(e) defines “flash incarceration”
as “a period of detention in county jail due to a violation of a
parolee’s conditions of parole. The length of the detention period
can range between one and 10 consecutive days.” The statute also
provides that “[s]horter, but if necessary more frequent, periods
of detention for violations of a parolee’s conditions of parole
shall appropriately punish a parolee while preventing the
disruption in a work or home establishment that typically arises
from longer periods of detention.” Id.
10

Guillermo Viera Rosa, DAPO’s Acting Associate Director,
avers that, “Despite DAPO’s authority to impose terms of flash
incarceration upon parolees under its supervision on or after July
1, 2013, DAPO will not utilize flash incarceration pursuant to
Penal Code sections 3000.08 and 1203.2(g).” (Viera Rosa Decl. ¶ 9,
ECF No. 1825.) Plaintiffs attack this averment on the grounds that
it is insufficient as a matter of law to foreclose the use of flash
incarceration; as no legislation prohibits DAPO’s use of the
sanction, DAPO could use it at any time. See Bell v. City of Boise,
709 F.3d 890 (9th Cir. 2013) (holding that voluntary cessation of
challenged activity that could be resumed as soon as case is
dismissed does not moot plaintiffs’ claims for relief). The court
need not weigh Mr. Viera Rosa’s declaration, as its decision herein
does not rest on whether DAPO has permanently forsworn flash
incarceration.
13

1

parolee must be “informed of his or her right to consult with

2

counsel, and if indigent the right to secure court appointed

3

counsel.” Cal. Penal Code § 1203.2(b)(2). While a hearing on the

4

petition is pending, “a parolee may waive, in writing, his or her

5

right to counsel, admit the parole violation, waive a court

6

hearing,

7

revocation.” Cal. Penal Code § 3000.08(f); see also Cal. Penal Code

8

§ 1203.2(b)(2) (“Upon the agreement by the supervised person in

9

writing to the specific terms of a modification or termination of

10

a specific term of supervision, any requirement that the supervised

11

person make a personal appearance in court for the purpose of a

12

modification or termination shall be waived”).

and

accept

the

proposed

parole

modification

or

13

The revocation hearing is to be conducted by the superior

14

court, specifically, a “judge, magistrate, or revocation hearing

15

officer described in Section 71622.5 of the Government Code.” Cal.

16

Penal Code § 1203.2(f). The statutory scheme does not prescribe a

17

time frame in which the revocation hearing must be held. Upon

18

finding that a parolee has violated parole conditions, the court

19

has a number of alternatives, including revoking parole, returning

20

the parolee to parole supervision with a modification of parole

21

conditions (including a period of incarceration), referring the

22

parolee to an evidence-based program such as a reentry court, or

23

placing the parolee under electronic monitoring. Cal. Penal Code

24

§§

25

individuals previously sentenced to life terms, parolees whose

26

parole is revoked or modified are incarcerated in county jail. Cal.

3000.08(f),

3004(a).

With

certain

14

exceptions,

e.g.,

for

1

Penal Code §§ 3000.08(f), (h).

2

BPH’s responsibilities after July 1, 2013 include:

3

•

4
5

Determining inmate parole eligibility. Cal. Penal Code
§§ 3000, 3040.

•

For parolees arrested pursuant to warrants issued by

6

BPH before July 1, 2013, reviewing their cases before

7

DAPO may file a petition with the court to revoke

8

their parole. Cal. Penal Code § 3000(b)(9)(B).

9

•

If, at a revocation hearing, the state court

10

determines that a parolee (i) has violated the law or

11

the terms of his/her parole, and (ii) was previously

12

sentenced to an indeterminate life sentence or a

13

determinate sentence for certain sex crimes, BPH

14

(rather than the court) has jurisdiction to determine

15

how long the parolee will be incarcerated. Cal. Penal

16

Code §§ 3000(b)(4), 3000.1, 3000.08(h).

17

D. Current Order

18

Upon initial review, it appeared to the court that the post-

19

Realignment parole revocation system was sufficiently different

20

from the system addressed by Valdivia so as to implicate mootness

21

concerns. Accordingly, on May 6, 2013, the court issued an order

22

directing the parties to brief the following issues:

23
24

(a) As of July 1, 2013, which elements of the parole
system that were formerly the exclusive responsibility
of defendants will now be the exclusive responsibility
of county authorities and/or the state judiciary?

25
26

(b) As of July 1, 2013, which elements of the parole
system that were formerly the exclusive responsibility
15

1
2
3
4

of defendants will now be the shared responsibility of
defendants, county authorities, and the state
judiciary? What will defendants’, county authorities’,
and the state judiciary’s respective responsibilities
be as to these shared elements?

5

(c) Will defendants bear responsibility for elements
of the parole system that are newly-created by
Realignment, such as “flash incarceration”?

6

(d) Is Valdivia moot as a result of Realignment?

7

(e) If Valdivia is not moot, in what ways should the
class definition and/or the Valdivia Remedy be altered
to reflect Realignment’s changes to the parole system?
(Order, ECF No. 1823.)

8
9
10

The parties filed opening briefs on May 28, 2013, and reply briefs

11

on June 11, 2013, together with supporting materials.

12

Defendants’ position is that the post-July 1, 2013 parole

13

revocation system is so different from the prior system as to

14

require the plaintiff class to be decertified, and this case

15

dismissed.

16

standing, mootness, and/or abstention.

Defendants

argue

for

dismissal

on

the

grounds

of

17

Plaintiffs counter that significant elements of the parole

18

system remain under defendants’ control, and accordingly, the court

19

should continue to enforce those provisions of the Injunction which

20

address parolees’ due process rights prior to revocation hearings

21

conducted by the state courts.

22

II. STANDARD

23

A. Justiciability vs. the court’s equitable powers

24

Article III, section 2 of the Constitution limits this court

25

to hearing actual cases and controversies. “An actual controversy

26

must be extant at all stages of review, not merely at the time the
16

1

complaint is filed.” Alvarez v. Smith, 558 U.S. 87, 92 (2009)

2

(citations and internal quotation omitted). “[A] dispute solely

3

about the meaning of a law, abstracted from any concrete actual or

4

threatened harm, falls outside the scope of the constitutional

5

words ‘Cases’ and ‘Controversies.’”

Id. at 93.

6

Under Federal Rule of Civil Procedure 12(h)(3), “If the court

7

determines at any time that it lacks subject-matter jurisdiction,

8

the court must dismiss the action.” Accordingly, district courts

9

may sua sponte examine justiciability issues such as standing,

10

mootness, and ripeness. See Bernhardt v. Cnty. of Los Angeles 279

11

F.3d 862, 868 (9th Cir. 2002) (“The district court had both the

12

power and the duty to raise the adequacy of [plaintiff’s] standing

13

sua sponte”).

14

Plaintiffs

maintain

it

demonstrating

is
that

defendants
the

who

Injunction

bear

the

15

responsibility

16

modified or terminated, and that they (plaintiffs) must be afforded

17

notice, an opportunity for targeted discovery, and an evidentiary

18

hearing before the court issues a ruling. (Plaintiff’s Reply 13-15,

19

ECF No. 1836.) This argument does not lie, given the court’s

20

responsibility to determine the ongoing justiciability of this

21

action.11

22

of

that

must

be

The court acknowledges that it has the power to modify a

23
24
25
26

11

Incidentally, contra plaintiffs, there is nothing
“improper” about defendants’ request that the court decertify the
Valdivia class and dismiss this case. (Plaintiffs’ Reply 13.) The
court’s May 6, 2013 Order directed the parties to brief these very
questions.
17

1

consent

2

enactments. See, e.g., Railway Employees v. Wright, 364 U.S. 642

3

(1961) (Harlan, J.) (holding that, in light of amendments to the

4

federal Railway Labor Act that allowed previously-prohibited union

5

shop agreements, district court could modify existing consent

6

decree between non-union employees and railroads). As the Supreme

7

Court observed in Wright:

8
9
10

decree

in

order

to

reflect

subsequent

legislative

There is also no dispute but that a sound judicial
discretion may call for the modification of the terms
of an injunctive decree if the circumstances, whether
of law or fact, obtaining at the time of its issuance
have changed, or new ones have since arisen.

11

Id. at 647. See also United States v. Swift & Co., 286 U.S. 106,

12

114 (1932) (Cardozo, J.) (“We are not doubtful of the power of a

13

court of equity to modify an injunction in adaptation to changed

14

conditions, though it was entered by consent . . . . A continuing

15

decree of injunction directed to events to come is subject always

16

to adaptation as events may shape the need”); Taylor v. U.S., 181

17

F.3d 1017, 1021 (9th Cir. 1999) (“[A] court always possesses the

18

power to revisit continuing prospective orders in light of the

19

evolving factual or legal landscape, and to modify or terminate the

20

relief . . .”).

21

Nevertheless, the justiciability inquiry, rooted as it is in

22

Article III of the Constitution, is more fundamental than the

23

court’s equitable power to modify a consent decree. “No principle

24

is more fundamental to the judiciary’s proper role in our system

25

of government than the constitutional limitation of federal-court

26

jurisdiction

to

actual

cases

or
18

controversies.”

Simon

v.

E.

1

Kentucky Welfare Rights Org., 426 U.S. 26, 37 (1976).

2

Accordingly, the court must first evaluate whether it retains

3

jurisdiction over the post-Realignment parole revocation system;

4

only if it so finds may it consider equitable modifications to the

5

Injunction.

6

B. Standard re: Mootness

7

The Ninth Circuit has set forth the following standard for

8
9

determining whether an action for injunctive relief is moot:

14

A moot action is one where the issues presented are no
longer ‘live’ or the parties lack a legally cognizable
interest in the outcome . . . . The basic question in
determining mootness is whether there is a present
controversy as to which effective relief can be
granted. We have pointed out that courts of equity
have broad discretion in shaping remedies. Thus, in
deciding a mootness issue, the question is not whether
the precise relief sought at the time the application
for an injunction was filed is still available. The
question is whether there can be any effective relief.

15

Nw. Envtl. Def. Ctr. v. Gordon, 849 F.2d. 1241, 1244-45 (9th Cir.

16

1988) (internal quotations and citations omitted).

10
11
12
13

17

A case that at one point presented an actual controversy

18

between the parties may become moot due to subsequent statutory

19

enactments. “A statutory change . . . is usually enough to render

20

a case moot, even if the legislature possesses the power to reenact

21

the statute after the lawsuit is dismissed.” Native Vill. of Noatak

22

v. Blatchford, 38 F.3d 1505, 1510 (9th Cir. 1994).

23

The mere possibility that a party may suffer future harm is

24

insufficient to preserve a case or controversy; the threat of

25

injury

26

“hypothetical.” See City of Los Angeles v. Lyons, 461 U.S. 95, 102

must

be

“real

and

immediate,”

19

not

“conjectural”

or

1

(1983); see also City News & Novelty Inc. v. City of Waukesha, 531

2

U.S. 278, 283 (2001).

3

III. Analysis

4

A. Mootness

5

The court begins by noting that Realignment is a comprehensive

6

legislative

enactment.

While

“it

is

well

settled

that

‘a

7

defendant’s voluntary cessation of a challenged practice does not

8

deprive a federal court of its power to determine the legality of

9

the practice[,]’” Friends of the Earth, Inc. v. Laidlaw Envtl.

10

Servs., Inc., 528 U.S. 167, 170 (2000) (quoting City of Mesquite

11

v. Aladdin’s Castle, Inc., 455 U.S. 283, 289 (1982)), the court

12

cannot discern any voluntary cessation of unlawful conduct of the

13

sort that would generally permit continued jurisdiction. Rather,

14

Realignment appears to be a “statutory change” sufficient to

15

implicate mootness. Noatak, 38 F.3d at 1510.

16

Turning to the mootness inquiry, then, “[t]he question is

17

whether there can be any effective relief.” Gordon, 849 F.2d at

18

1245. The crux of plaintiffs’ argument, in answering this question,

19

is that they “retain a significant interest in their liberty,

20

relationships and connections to their communities, and Defendants

21

retain the ability to endanger those interests based on claimed

22

violations of parole.” (Plaintiffs Reply 1.) This may be true. But

23

it is insufficient, as a matter of law, to justify the court’s

24

continued jurisdiction over this matter.

25

Realignment has established a fundamentally different parole

26

system than the one that the Valdivia plaintiffs challenged. That
20

1

system was largely administrative: DAPO supervised parolees; BPH

2

issued warrants for parolees’ arrest and adjudicated their probable

3

cause

4

incarcerate parolees in state prisons. As detailed above, DAPO and

5

BPH’s powers and jurisdiction have changed significantly in the new

6

system.

7

determinations

8

Moreover, the system features major new actors (county jails; the

9

California state courts; public defenders’ offices) who are not

and

revocation

For

to

hearings;

example,
(in

this

lieu

DAPO
of

lawsuit.

upon

will
BPH’s

Further,

revocation,

conduct
probable

the

CDCR

probable
cause

plaintiff

would

cause

hearings).

10

parties

class

is

11

significantly reduced, both in raw numbers and as a matter of law,

12

for many categories of felons previously supervised by DAPO are now

13

subject to Post-Release Community Supervision by county probation

14

departments.

15

This is not Proposition 9, which tweaked features of the then-

16

existing system by increasing the time for probable cause hearings,

17

limiting parolees’ right to counsel, altering BPH’s decision

18

criteria at parole hearings, and liberalizing the use of hearsay

19

evidence at these hearings. The court could properly adjudicate the

20

constitutionality of these modifications because Prop. 9 did not

21

change the system of parole revocation itself. The steps in the

22

parole revocation process were the same, the system was still

23

administered by the executive branch through DAPO and BPH, there

24

was no change to the categories of felonies subject to DAPO/BPH

25

jurisdiction, and parolees still returned to state prison when

26

their parole was revoked. None of this is true of the “Realigned”
21

1

post-July 1, 2013 parole revocation system.

2

Plaintiffs

nevertheless

call

for

the

court

to

retain

3

jurisdiction, arguing, “This is not a case of mootness, but of

4

changed circumstances that require modifications to the injunctive

5

relief that are suitably tailored to the new circumstances, and

6

that do not ‘create or perpetuate a constitutional violation.’”

7

(Plaintiffs’ Opening 11 (quoting Rufo v. Inmates of Suffolk Cnty.

8

Jail, 502 U.S. 367, 391 (1992)), ECF No. 1829.) They contend that

9

“after Realignment, just as before, essentially the entire parole

10

revocation process prior to the final hearing remains under the

11

control and oversight of the defendants,” particularly DAPO. (Id.

12

9.) Consequently, plaintiffs warn that “Defendants’ plan to abandon

13

[probable cause hearings] would return revocation proceedings to

14

a

15

unconstitutional.” (Id. 16.)

system

that

this

Court

has

already

expressly

deemed

16

In evaluating these arguments, it is instructive to examine

17

how plaintiffs propose that the Injunction ought to be modified to

18

reflect the post-Realignment system. They write:

19
20
21
22
23

Plaintiffs agree that the post-July 1, 2013 revocation
system changes will obviate the need for this Court to
continue oversight of final revocation hearing-related
functions set forth in Injunction paragraphs 20 (final
revocation hearing tapes), 21 (parolee access to
subpoenas and witnesses at final hearings), 23 [as
modified] (45-day deadline for final hearings), and 24
(use of hearsay evidence and confrontation rights at
final hearings) and related orders. (Plaintiffs’ Reply
12.)

24
25

Nevertheless, while plaintiffs concede that “this Court is entitled

26

to presume that the judges of the state court will observe due
22

1

process in their conduct of final revocation hearings,” they go on

2

to request that the identified paragraphs of the Injunction “be

3

modified

4

revocation hearings should be limited to monitoring by Plaintiffs

5

and the Special Master for the purpose of determining whether the

6

Defendants in this action are interfering with or obstructing the

7

independent performance of due process functions by the state

8

courts.” (Plaintiffs’ Opening 13.) Plaintiffs’ proposed order then

9

calls on the court to (i) require defendants to maintain the

10

current system for providing parolees with probable cause hearings

11

(“including the BPH system of hearing officers and the provision

12

of counsel through CalPAP”) until such time as any alternate system

13

is approved by this court, (ii) prohibit defendants from imposing

14

“flash incarceration” on Valdivia class members until adequate due

15

process protections are approved by the court, (iii) require

16

defendants to submit “policies and procedures to ensure that

17

Defendants continue to make remedial sanctions programs available

18

through and including at the final revocation hearings after such

19

hearings are transitioned to the state courts,” and (iv) direct the

20

parties to meet and confer on necessary modifications to the

21

Injunction in light of the court’s findings. (ECF No. 1829-31.)

only

as

follows:

the

relief

with

respect

to

final

22

Nothing more clearly demonstrates the mootness of this action

23

than the fact that such extensive measures would be necessary to

24

reconcile the Injunction with the post-July 1, 2013 system. In

25

enacting Realignment, California’s legislature has fundamentally

26

altered the structure of the state’s parole system. Realignment
23

1

introduces new actors, adds to and subtracts from defendants’

2

responsibilities, redefines what constitutes a “parolee,” and

3

incorporates wholly-new elements such as flash incarceration. The

4

magnitude of the change is significant enough that this court

5

cannot, as plaintiffs suggest, simply identify those components of

6

the old system that recur in the new system, and try to reconcile

7

the Injunction with those components. To do so risks bringing the

8

new system grinding to a halt. Although this court is empowered to

9

modify the Injunction to ameliorate unconstitutional conditions,

10

this power is not a license to jumble together the old and the new

11

in the hopes that a functioning, constitutional system will result.

12

Whether the new system provides adequate due process must be

13

demonstrated in practice, without untoward judicial interference

14

until the need for intervention is clear.

15

Moreover, continuing to enforce the Injunction risks intruding

16

on

the

17

unwarranted interference with state court proceedings is a well-

18

settled principle. See, e.g., O’Shea v. Littleton, 414 U.S. 488,

19

500 (1974) (“This seems to us nothing less than an ongoing federal

20

audit

21

accomplish the kind of interference that Younger v. Harris[, 401

22

U.S. 37 (1971)] and related cases sought to prevent”); Los Angeles

23

Cnty. Bar Ass’n v. Eu, 979 F.2d 697, 703 (9th Cir. 1992) (“We

24

should be very reluctant to grant relief that would entail heavy

25

federal

26

administration of the judicial system”); E.T. v. Cantil-Sakauye,

of

prerogatives

state

of

criminal

interference

in

the

state

proceedings

such

courts.

which

sensitive

24

Abstention

would

state

from

indirectly

activities

as

1

682

F.3d

1121,

1124

(2011)

(“[T]he

district

court

properly

2

concluded that ‘[P]laintiffs’ challenges to the juvenile dependency

3

court system necessarily require the court to intrude upon the

4

state’s administration of its government, and more specifically,

5

its court system’”). Defendants assert that “any due process

6

concerns that arise as a result of DAPO’s conduct will be directly

7

reviewed and addressed by the superior courts.” (Defendants’

8

Opening 2.) For this court to, e.g., require defendants to maintain

9

the current system for providing parolees with probable cause

10

hearings (including, as plaintiffs request, “the BPH system of

11

hearing officers and the provision of counsel through CalPAP”)

12

would certainly interfere with the system of due process review

13

envisioned by the state.

14

The court acknowledges that immense resources have been

15

devoted to this case, and that it is well-settled that “[o]nce a

16

defendant has engaged in conduct the plaintiff contends is unlawful

17

and the courts have devoted resources to determining the dispute,

18

there is Article III jurisdiction to decide the case as long as

19

‘the parties [do not] plainly lack a continuing interest . . . .’”

20

Demery v. Arpaio, 378 F.3d 1020, 1026 (9th Cir. 2004) (quoting

21

Friends of the Earth, 528 U.S. at 192). But it is the court’s

22

considered judgment that California’s new parole revocation system

23

is so substantially different from the prior system that neither

24

party retains any continuing interest. In bringing this action,

25

plaintiffs sought to safeguard their due process rights in an

26

administrative system; defendants were the parties responsible for
25

1

that system’s functioning. The post-Realignment parole revocation

2

system involves a complex interplay between the state’s executive

3

and judicial branches, as well as county authorities. Acknowledging

4

that “the question is not whether the precise relief sought at the

5

time

6

available, the question is whether there can be any effective

7

relief,” Gordon, 849 F.2d at 1245, it does not appear to the court

8

that continued enforcement of the Injunction can provide “any

9

effective

the

application

relief”

for

for

an

injunction

plaintiffs.

While

was

filed

plaintiffs

is

still

retain

a

10

continuing interest in safeguarding their constitutional rights,

11

the functioning of the system has changed to such a degree that

12

Valdivia no longer provides a viable means for providing those

13

safeguards.

14

None of this is to say that the constitutionality of the new

15

parole system is immune from challenge. It may well be, e.g., that

16

DAPO’s probable cause “determinations” represent a “rever[sion] to

17

a wholly internal review process for assessing probable cause”

18

(Plaintiffs’

19

unconstitutional in 2002. Nevertheless, for the reasons set forth

20

above, any such infirmities will have to be addressed, if at all,

21

in a subsequent lawsuit or lawsuits.

Opening

22)

of

the

type

that

this

court

found

22

B. Plaintiffs’ remaining arguments

23

Plaintiffs make a number of fact-specific arguments for why

24

the court should continue to exercise jurisdiction over this case,

25

as follows:

26

•

The vast majority of cases will be resolved by DAPO
26

1

without ever proceeding to final revocation hearings

2

in the state court, thereby depriving plaintiffs of

3

due process protections. (Plaintiffs’ Opening 1-2, 5.)

4

This argument rests on the Special Master’s finding

5

that, of late, 94% of parole revocation cases have

6

resolved prior to any final revocation hearing. (Id.

7

9.)

8

•

9

Despite defendants’ averments that they do not intend
to deploy flash incarceration, plaintiffs offer

10

evidence suggesting that DAPO not only can, but will,

11

“flash incarcerate” parolees. This evidence includes

12

draft CDCR documents describing and authorizing the

13

use of this sanction, as well as the fact that the

14

state’s new Parole Violation Disposition Tracking

15

System software captures data regarding flash

16

incarceration

17

These dangers are, at this point, entirely speculative, and as

18

such, implicate both mootness and ripeness concerns. To present a

19

continuing case or controversy, the threat of injury must be “real

20

and immediate,” not “conjectural” or “hypothetical.” Lyons, 461

21

U.S. at 102 (1983). “A claim is not ripe for adjudication if it

22

rests

23

anticipated, or indeed may not occur at all.” Texas v. United

24

States, 523 U.S. 296, 300 (quoting Thomas v. Union Carbide Agric.

25

Prods. Co., 473 U.S. 568, 580-81 (1985)). No one can yet know how

26

the post-Realignment parole revocation system will function in

upon

contingent

future

events

27

that

may

not

occur

as

1

practice. One cannot infer from the relatively small number of

2

cases proceeding to revocation hearings before BPH under the old

3

system that similarly small numbers will proceed to hearings before

4

the courts under the new system. Moreover, plaintiffs’ argument is

5

premised on the assumption that the new system will not provide

6

adequate

due

7

hearings,

a

8

Similarly, regardless of whether DAPO is prevaricating in its claim

9

that it will not use flash incarceration, it would be premature for

10

the court to rule on the measure’s constitutionality, both because

11

it is a single element of a complex new system and because its use

12

by DAPO “may not occur at all.” Texas, 523 U.S. at 300.

13

process
finding

protections
the

court

prior

to

explicitly

final

revocation

declines

to

make.

Next, plaintiffs argue that defendants have failed to present

14

“sufficient

evidence

15

modification or termination of the remedy, or any parts of it,

16

would

17

(Plaintiffs’ Reply 14 (citing Rufo 502 U.S. at 391)). Plaintiffs

18

miss the point that, as of July 1, 2013, the court no longer has

19

jurisdiction

20

constitutional violation in this matter. The court has reached that

21

conclusion based on the statutory scheme enacted by the California

22

legislature,12 not on the basis of factual evidence adduced by the

‘create

or

to

for

the

perpetuate

determine

Court

a

to

determine

constitutional

whether

there

is

whether

violation.’”

an

ongoing

23
12

24
25
26

This is not to say that the court has no concerns about
the new system. Under the post-Realignment system, it appears
entirely possible for a parolee to be detained for an indefinite
period of time, without notice of charges or a probable cause
hearing, before DAPO finally files a petition for parole revocation
with the state court. An indeterminate interval may again pass
28

1

parties. Again, it is the court’s view that any constitutional

2

infirmities of the post-Realignment parole revocation system must

3

be addressed in subsequent litigation.

4

Finally, there is the matter of plaintiffs’ supplemental reply

5

to the court’s May 6, 2013 Order, filed on June 27, 2013. (ECF Nos.

6

1841, 1842.) The parties should note that, in general, the court

7

disapproves of the filing of supplemental briefing without leave.

8

Plaintiffs could have sought leave, and in so doing, apprised the

9

court and defendants of the relevant issues; if the court found the

10

issues raised to be meritorious, it would have then set an

11

appropriate briefing schedule. The parties are cautioned that

12

failure to follow these steps in the future may be grounds for

13

sanctions.

14

Plaintiffs’ supplemental reply raises the issue of how the

15

state will handle parole supervision and revocation for those

16

inmates due to be released from state prison pursuant to the June

17

20, 2013 Order of the Three Judge Court in Coleman v. Brown, No.

18

2:90-cv-0520-LKK-JFM (E.D. Cal.) (ECF No. 4662) and Plata v. Brown,

19

No. 3:01-01351-TEH (N.D. Cal.) (ECF No. 2659). Plaintiffs contend:

20

[A]ssuming the defendants do not disregard the Court’s
June 20 Order in the Plata/Coleman matter, more than
5,000 class members will be released on parole between
now and the end of 2013, and they will not be subject to

21
22
23
24
25
26

before the state court holds a revocation hearing. In the meantime,
the parolee may have lost custody of his children, his job, his
home and/or his car. The parolee will have no redress if the state
court ultimately finds that there was no basis for revoking parole.
Despite the probable unconstitutionality of such procedures, these
harms remain hypothetical, not actual, and as such, may not be
addressed in this action.
29

1

7

Realignment processes. Rather, they will be supervised
by the Valdivia defendants — and not by the counties.
And they will be returned to state prison — and not to
county jail — upon a finding that their conditions of
parole were violated. The state courts have no
jurisdiction under A.B. 109 and its clean-up bills to
return a person to state prison for a parole violation.
See Cal. Penal Code §§ 3000.08(f), (g) (version
operative July 1, 2013). The anticipated process,
therefore, must be within the CDCR and/or Board of
Parole Hearings. These class members, therefore, will be
subject to revocation proceedings and hearings by the
Valdivia defendants — and not by the state courts. (ECF

8

No. 1841.)

2
3
4
5
6

9

Fortuitously, at the time that plaintiffs’ filed their supplemental

10

briefing, the court was conducting a bench trial in the matter of

11

Gilman v. Brown, No. 2:05-cv-830-LKK-CKD (E.D. Cal.). On Monday,

12

July 1, 2013, Jennifer Shaffer, the Executive Officer of BPH, was

13

called as a witness in that trial. After she was sworn in, the

14

court asked Ms. Shaffer whether parole violations among those

15

inmates released pursuant to the Order of the Three Judge Court

16

would be handled under the prior parole revocation system, or the

17

current

18

understanding, petitions to revoke these inmates’ parole would be

19

filed with the state courts, which would then handle them. It is

20

evident that, by virtue of her position, Ms. Shaffer is in a

21

position to testify competently regarding BPH’s responsibilities.

22

Moreover, she testified under oath. For the reasons set forth

23

above,

24

jurisdiction over parole revocation hearings is sufficient to moot

25

this case.

26

court finds that the contentions raised by plaintiffs’ supplemental

one.

this

Ms.

court

Shaffer

has

responded

already

that,

determined

according

that

to

state

her

court

Accordingly, based on Ms. Shaffer’s testimony, the

30

1

briefing provide an inadequate basis for the court’s continued

2

exercise of jurisdiction over this matter. In other words, Valdivia

3

is moot.

4

IV. CONCLUSION

5

The court hereby orders as follows:

6

[1] The court FINDS that this case is moot. Accordingly,

7

the court DECLINES to adopt the Thirteenth Report of the

8

Special Master on the Status of Conditions of the Remedial

9

Order (ECF No. 1783.) A forthcoming order will address the

10

parties’ outstanding requests to seal documents.

11
12

[2] The parties and the Special Master are DIRECTED to file

13

final motions, if any, for fees and costs within twenty-

14

eight (28) days of the date of entry of this order. Upon

15

resolution of these motions, the court will decertify the

16

class and dismiss this case.

17

IT IS SO ORDERED.

18

DATED: July 2, 2013.

19
20
21
22
23
24
25
26
31