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
8
EASTERN DISTRICT OF CALIFORNIA
9
10
11
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
12
Plaintiffs,
13
v.
O R D E R
14
15
EDMUND G. BROWN, JR., Governor of
the State of California, et al.,
Defendants.
16
/
17
18
In 1994, plaintiffs commenced this action, which challenged
19
the
constitutionality
20
revocation system. In 2011, California began enacting legislation,
21
commonly known as “Realignment,” that significantly altered the
22
state’s criminal justice system. The question before this court is
23
whether, in light of Realignment, this lawsuit remains the proper
24
vehicle
25
guaranteed due process protections. Having carefully considered the
26
question, the court concludes that this case became moot as of July
for
ensuring
of
that
California’s
parolees
1
then-existing
receive
parole
Constitutionally-
1
1, 2013, when the new parole revocation system was scheduled to go
2
fully into effect. Accordingly, for the reasons set forth below,
3
the plaintiff class will be decertified and this matter dismissed.
4
I. BACKGROUND
5
A. History of the litigation
6
On
May
2,
1994,
plaintiffs
filed
the
instant
lawsuit,
7
challenging California’s parole revocation procedures under the
8
Fourteenth Amendment. Plaintiffs’ initial complaint alleged that
9
“[t]he
Defendants
and
by
and
through
the
Department
of
10
Corrections . . . continue a practice of revocation of parole and
11
remand of parolees, in violation of law as alleged herein, which
12
practice has been continuing for many years.” (Complaint ¶ 48, ECF
13
No. 1.) Class certification was sought on the grounds that “[i]n
14
general, the common questions of law and fact involve the summary
15
remand to prison of parolees without due consideration of the right
16
to counsel and without due process of law, in violation of Gagnon
17
v. Scarpelli, [411 U.S. 778 (1973)] and Morrissey v. Brewer, [408
18
U.S. 471 (1972)].” (Id. ¶ 58.)
19
On December 1, 1994, the court certified a plaintiff class
20
consisting of California parolees (1) who are at large; (2) who are
21
in custody as alleged parole violators awaiting revocation of their
22
parole status; or (3) who are in custody having been found in
23
violation of parole. (Order, ECF No. 76)
24
The parties engaged in discovery for several years thereafter.
25
On June 13, 2002, the court granted partial summary judgment in
26
favor of plaintiffs, finding that California’s parole revocation
2
1
hearing system failed to safeguard plaintiffs’ procedural due
2
process rights under Morrissey, 408 U.S. at 487–90, and Gagnon, 411
3
U.S. at 786. The court’s order emphasized that, in order to ensure
4
adequate due process, probable cause hearings must be both accurate
5
and promptly-held. See Valdivia v. Davis, 206 F. Supp. 2d 1068
6
(E.D. Cal. 2002).
7
Four months later, the court ordered defendants to file a
8
proposed
9
violations. The court also directed the parties to meet and confer
10
so that defendants could adapt the proposed remedial plan into a
11
proposed remedial order to be presented to the court. (Order, Oct.
12
18, 2002, ECF No. 742.)
remedial
plan
to
address
identified
due
process
13
After some delay, defendants filed a proposed remedial plan,
14
to which plaintiffs objected. (ECF No. 784.) At the hearing on
15
plaintiff’s objections, defendants indicated “that they would
16
appreciate
17
Constitution requires with respect to the timing and substance of
18
the preliminary parole revocation hearing.” (Order at 3, July 23,
19
2003, ECF No. 796.) In a subsequent order, the court initially
20
expressed its hesitation at so doing, in light of the principle
21
that “due process is flexible and calls for such procedural
22
protections as the particular situation demands.” Morrissey, 408
23
U.S. at 481. Nevertheless, in order to facilitate the development
24
of an adequate remedy, the court undertook a comprehensive review
25
of the case law surrounding the promptness of probable cause
26
hearings in the parole context, as well as in the context of other
guidance
from
the
court
3
on
precisely
what
the
1
2
3
4
5
6
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
7
8
The court then set forth the following minimum standards for
9
probable cause hearings: that they be conducted by a neutral
10
decisionmaker, that parolees have an opportunity to both present
11
documentary evidence and witnesses, and to cross-examine adverse
12
witnesses, and that the hearing’s results be documented in a
13
written report. Alternatively, defendants could hold a unified
14
hearing that was sufficiently prompt and the content of which met
15
the due process requirements for both probable cause and revocation
16
hearings. (Id. at 15-16.)
17
Ultimately, the parties filed a stipulated order for permanent
18
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24
25
26
1
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).
4
1
injunctive relief, which the court entered. (Order, March 8, 2004
2
(“Injunction”), ECF No. 1034.) The parties to the Injunction were
3
the previously-certified plaintiff class and “the [defendant] state
4
officials responsible for the policies and procedures by which
5
California conducts parole revocation proceedings.” (Injunction
6
¶ 8.) All of these defendants were members of the state’s executive
7
branch. Critical provisions of the Injunction include:
8
1.
9
not later than three business days from the placement
10
11
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
12
business days after parolees are served notice of
13
charges and rights. (Injunction ¶ 11(d).)
14
3.
Appointment of counsel for all parolees at the
15
beginning of the Return to Custody Assessment2 stage
16
of the revocation proceedings. (Injunction ¶
17
11(b)(i).)
18
4.
Expedited probable cause hearings, if appointed
19
counsel makes a sufficient offer of proof of a
20
complete defense to all parole violation charges.
21
(Injunction ¶ 11(b)(i).)
22
5.
The ability of parolees’ counsel to subpoena and
present witnesses and evidence to the same extent and
23
24
2
25
26
“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).)
5
1
under the same terms as the state. (Injunction ¶ 21.)
2
6.
Adequate allowance, at probable cause hearings, for
3
parolees to present evidence to defend or mitigate
4
against the charges and proposed disposition. Such
5
evidence may be presented through documentary evidence
6
or through the charged parolee’s testimony, either or
7
both of which may include hearsay testimony.
8
(Injunction ¶ 22.)
9
7.
Limitations on the use of hearsay evidence at hearing
10
in light of parolees’ confrontation rights, as
11
provided for in United States v. Comito, 177 F.3d 1166
12
(9th Cir. 1999). (Injunction ¶ 24.)
13
8.
Parole revocation hearings to be held no later than 35
14
calendar days from the date of placement of a parole
15
hold. (Injunction ¶¶ 11(b)(iv), 23.)
16
The
17
assistance
18
impairments, training of appointed counsel, and the handling of
19
confidential information. The Injunction does not specify an end
20
date for court supervision, providing instead that “[t]he Court
21
shall retain jurisdiction to enforce the terms of this Order. The
22
Court shall have the power to enforce [these terms] through
23
specific performance and all other remedies permitted by law or
24
equity.” (Injunction ¶ 28.)
25
26
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
6
1
court appointed Chase Riveland to that position. (ECF Nos. 1198,
2
1213, 1245.) The Special Master has subsequently filed thirteen
3
reports with the court addressing implementation of the Valdivia
4
Injunction, as well as the court’s subsequent orders herein. (ECF
5
Nos. 1302, 1335, 1388, 1479, 1483, 1539, 1570, 1585, 1647, 1730,
6
1750, 1783.)3
7
B. Proposition 9
8
On November 4, 2008, California voters passed Proposition 9,
9
entitled “Victims’ Bill of Rights Act of 2008: Marsy’s Law.”
10
Proposition 9’s amendments to the California Penal Code altered a
11
number of the parameters for the parole revocation system that had
12
been
13
enforcement of portions of Penal Code § 3044 (enacted by Prop. 9)
14
as conflicting with provisions of the Injunction; defendants cross-
15
moved to modify the Injunction to conform to Proposition 9.
16
Valdivia v. Schwarzenegger, 603 F. Supp. 2d 1275 (E.D. Cal. 2009).
17
After hearing, the court denied defendants’ motion, and granted
18
plaintiffs’ motion in substantial part. Id. On appeal, the Ninth
19
Circuit held that the court had erred by failing to make an
20
“express determination that any aspect of the California parole
21
revocation procedures, as modified by Proposition 9, violated
22
constitutional rights, or that the Injunction was necessary to
23
remedy
24
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.
25
3
26
The Special Master’s Ninth Report does not appear to have
been docketed.
7
1
court determined that the following aspects of Cal. Penal Code §
2
3044,
3
unconstitutional:
as
enacted
by
Section
5.3
of
Proposition
9,
were
4
(1) Holding probable cause hearings no later than 15 days
5
after the parolee’s arrest for parole violations “did not
6
guarantee a prompt probable cause hearing with all of the
7
minimum process set forth in Morrisey.” Valdivia v. Brown,
8
No. S-94-671-LKK-GGH, 2012 WL 219342 at *6, 2012 U.S. Dist.
9
LEXIS 8092 at *21 (E.D. Cal. Jan. 24, 2012).
10
11
(2) Providing parolees with counsel on a case-by-case
12
basis, and even then, only for those parolees who were both
13
indigent and “incapable of speaking effectively in [their]
14
own defense,” both “deprived [parolees] of the right to
15
notice of the right to counsel” and failed, under Gagnon,
16
to provide for “a presumptive right to counsel when the
17
parolee makes a colorable claim that he has not committed
18
the alleged violations or claims colorable mitigation.”
19
Id., 2012 WL 219342 at *8, 2012 U.S. Dist. LEXIS 8092 at
20
*26. The court also found that ¶ 11(b)(i) of the
21
Injunction, under which all parolees are appointed counsel
22
beginning at the Return to Custody Assessment stage, “is a
23
properly tailored remedy . . . [which] addresses and
24
relates to a Constitutional violation[.]” Id., 2012 WL
25
219342 at *9, 2012 U.S. Dist. LEXIS 8092 at *28.
26
8
1
(3) Modifying the decision criteria for the Board of Parole
2
Hearings (“BPH”), e.g., by “entrust[ing]” BPH “with the
3
safety of victims and the public” and including
4
requirements that BPH “not be influenced by or weigh the
5
state cost or burden associated with just decisions,” was
6
unconstitutional under Morrissey in its violation of
7
parolees’ right to a neutral decisionmaker, and under Brown
8
v. Plata, __ U.S. __, 131 S. Ct. 1910 (2011) in its
9
interference with California’s constitutionally-mandated
10
efforts to reduce its prison population. Id., 2012 WL
11
219342 at *10, 2012 U.S. Dist. LEXIS 8092 at *31-32.
12
13
(4) Finally, allowing the unconditional use of hearsay
14
evidence in parole revocation hearings was
15
unconstitutional, as it did not permit the balancing of
16
“the releasee’s interest in his constitutionally guaranteed
17
right to confrontation against the Government’s good cause
18
for denying it.” Id., 2012 WL 219342 at *11, 2012 U.S.
19
Dist. LEXIS 8092 at *34 (quoting Comito, 177 F.3d at 1170
20
(9th Cir. 1999)).
21
The court ultimately granted plaintiffs’ motion to enforce the
22
Injunction, though it did modify its terms to specify, consonant
23
with Proposition 9, that parole revocation hearings were to be
24
held no later than 45 days after placement of the parole hold.
25
Id., 2012 WL 219342 at *12, 2012 U.S. Dist. LEXIS 8092 at *39.
26
////
9
1
C. Realignment
2
From the inception of this lawsuit until the present, the
3
California Department of Corrections and Rehabilitation (“CDCR”)
4
has been largely responsible for the parole system’s functioning.
5
BPH, a board operating under the auspices of CDCR, has been
6
responsible for conducting probable cause and parole revocation
7
hearings, and for functions such as issuing arrest warrants for
8
suspected
9
Operations (“DAPO”) has overseen much of the rest of the parole
10
parole
violators.
CDCR’s
Division
of
Adult
Parole
system.
11
This system began to change on April 4, 2011, when the
12
Governor signed Assembly Bill 109, entitled “The 2011 Realignment
13
Legislation
14
transferred substantial responsibilities for the parole system to
15
county authorities, and called for state courts “to perform various
16
parole-related
17
discharge, retention, and revocation proceedings[,] and modifying
18
terms
19
Administrative Office of the Courts, May 20, 2011, Decl. Ernest
20
Galvan, Ex. 2 at 4, ECF No. 1829-3.) Subsequent legislative
21
enactments5 have narrowed the state courts’ role to conducting
22
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
23
4
24
Cal. Stats. 2011, ch. 15.
5
25
26
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
1
the state’s respective responsibilities in the post-Realignment
2
parole system. Briefly, beginning on July 1, 2013, this system is
3
expected to function as set out below.
4
DAPO will supervise the parole of individuals convicted of any
5
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
8
classified as a High Risk Sex Offender, and (5) crimes where the
9
person is required, as a condition of parole, to undergo treatment
10
by the Department of Mental Health. Cal. Penal Code § 3000.08(a).6
11
DAPO will also continue to supervise parolees who were under its
12
supervision prior to July 1, 2013. State courts will be responsible
13
for hearing petitions for parole revocation and imposing parole
14
terms for these individuals. Individuals paroled from life terms
15
in prison will also be under DAPO supervision, and subject to the
16
jurisdiction of BPH for purposes of parole revocation hearings.
17
Cal. Penal Code. § 3000.1.7
18
All other individuals subject to parole will be released to
19
Postrelease Community Supervision (“PRCS”), to be supervised by
20
county probation departments. Cal. Penal Code § 3000.08(b). Those
21
prisoners who were sent to county jails to complete their terms in
22
23
24
6
All citations to Cal. Penal Code § 3000.08 are to the
version operative on July 1, 2013.
7
25
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
1
the initial stage of Realignment (which began on October 1, 2011)
2
are similarly subject to PRCS, rather than DAPO parole supervision.
3
(Viera Rose Decl. ¶ 6., ECF No. 1825.) The parties appear to agree
4
that individuals subject to PRCS should not be considered part of
5
the Valdivia class.8 For convenience, the court will use the term
6
“parolee” hereinafter to refer to those individuals subject to DAPO
7
supervision after July 1.
8
9
If DAPO suspects a parolee of having violated the terms and
conditions of parole, it may do one of the following:
10
(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
13
(2) Seek a warrant from the state court for the parolee to
14
be returned to custody. Cal. Penal Code §§ 1203.2(a),
15
3000(b)(9)(A), 3000.08(c). The state court has the
16
authority to summarily revoke parole at this stage. Cal.
17
Penal Code § 1203.2(a).
18
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.
21
Penal Code § 3000.08(d). If it so finds, DAPO may either apply
22
23
24
25
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
13
14
15
16
17
18
19
20
21
22
23
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
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