Gilman v. Fisher, et al

Filing 479

ORDER signed by Judge Lawrence K. Karlton on 5/6/13 DENYING 428 Motion for Summary Judgment; DENYING 425 Motion for Summary Judgment; and DENYING 426 Motion to Decertify the Remaining Classes. All currently scheduled dates in this matter are CONFIRMED. (Meuleman, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RICHARD M. GILMAN, et al.,
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NO. CIV. S-05-830 LKK/GGH
Plaintiffs,

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v.
O R D E R

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EDMUND G. BROWN, JR., et al.,

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Defendants.
/

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Plaintiffs are members of two certified classes of California

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state prisoners who have been sentenced to life terms with the

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possibility of parole. See Order Amending Definitions of Certified

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Class (ECF No. 340) ¶ 2.1

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were sentenced to life terms for offenses that occurred before

The first certified class of plaintiffs

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The classes were certified pursuant to Fed. R. Civ. P.
23(b)(2), which permits class members to "opt out" at the
discretion of the court.
See, e.g., Linney v. Cellular Alaska
Partnership, 151 F.3d 1234, 1242 n.6 (9th Cir. 1998) (“This court
has held that the option to opt-out is discretionary in cases, like
this one, brought under Rule 23(b)(2)"). There appears to be no
reason to deny these requesters the right to opt out in this case,
and accordingly their pending requests to opt out of this class
(ECF Nos. 450 & 474), are hereby GRANTED.
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November 4, 2008.

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interval between parole hearings available to these prisoners from

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a default period of one year (with a maximum of two, three or five

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years), to a default period of fifteen years (with a minimum of

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three years).

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sentenced to life terms for offenses that occurred before November

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8, 1988.

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to reverse any parole board decision finding a life term prisoner

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"suitable" for parole. Such parole board decisions had previously

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On that date, Proposition 9 increased the

The second certified class of plaintiffs were

On that date, Proposition 89 gave the Governor authority

been final.

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Plaintiffs' two surviving claims assert that Propositions 9

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(Claim 8) and 89 (Claim 9), violate their rights under the Ex Post

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Facto Clause of the U.S. Constitution, U.S. Const., art. I, § 10.2

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Defendants move to decertify the classes.3

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judgment on both claims.4

They also seek summary

Plaintiffs oppose summary judgment on

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2

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The operative complaint here is the “[Corrected] Fourth
Amended/Supplemental Complaint” (“Complaint”) (ECF No. 175). See
ECF No. 183 (authorizing this complaint to be filed). Plaintiffs
have abandoned Claims 1, 3 and 6 (Due Process). See Plaintiffs'
Opposition to Summary Judgment ("Pl. Opp. to SJ") (ECF No. 435) at
1. This court granted judgment on the pleadings for defendants on
Claims 2, 4, 5 and 7 (ECF No. 420) (May 31, 2012).
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On March 4, 2009, this court granted plaintiffs’ motion for
class certification (ECF No. 182), and the Ninth Circuit affirmed
that order on interlocutory appeal (Dkt. No. 257).
Gilman v.
Schwarzenegger, 382 Fed. Appx. 544 (9th Cir. 2010)(unpublished
table decision). On April 25, 2011, this court modified the class
definitions to their current configuration. ECF No. 340. The
classes for Claims 1, 3 and 6 have already been decertified. ECF
No. 445 (September 7, 2012).
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On February 4, 2010, this court denied defendants’ motion
to dismiss the Proposition 89 challenge (ECF No. 218). Gilman v.
Davis, 2010 WL 434215 (E.D. Cal. 2010) (Karlton, J.). The court
2

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both

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Proposition 89 claim, or in the alternative, for a preliminary

3

injunction on that claim.

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claims,

and

cross-move

for

summary

judgment

on

their

For the reasons that follow, the court will deny all the

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pending motions.5

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I.

CALIFORNIA PAROLE.

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Plaintiff life prisoners are eligible for parole after serving

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a statutorily-defined minimum number of years. See Cal. Penal Code

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§ 3046(a) (setting minimum terms for "prisoner imprisoned under a

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life sentence").

The power to grant parole and set release dates

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lies with the Board of Parole Hearings (formerly the Board of

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Prison Terms).6

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Lawrence, 44 Cal. 4th at 1201.

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for parole, it is up to the Board to determine whether he is

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“suitable” for parole. See Cal. Penal Code § 3041(b). Suitability

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is determined at a hearing before a Board commissioner and deputy

In re Vicks, 56 Cal. 4th 274, 294 (2013);
Once a life prisoner is eligible

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acknowledged that the Ninth Circuit had already rejected a facial
challenge to Proposition 89, citing Johnson v. Gomez, 92 F.3d 964
(9th Cir. 1996), cert. denied, 520 U.S. 1242 (1997). However, the
court determined that Garner v. Jones, 529 U.S. 244 (2000) provides
for “both facial and as applied Ex Post Facto challenges.”
Accordingly, the court denied the motion to dismiss, leaving
plaintiff free to make an “as applied” challenge to Proposition 89.
On May 31, 2012, this court denied defendants’ motion for judgment
on the pleadings on the Proposition 89 challenge. (Dkt. No. 420).
Defendants had argued that the claim was time-barred.
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Plaintiffs’ requests to seal documents (ECF Nos. 427 & 439),
all of which pertain to confidential Executive Case Summaries of
prisoners, were granted in separate orders.
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“The Board of Parole Hearings replaced the Board of Prison
Terms in July 2005.” In re Lawrence, 44 Cal. 4th 1181, 1190 n.1
(2008).
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commissioner.

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occurs one year before eligibility. Id., § 3041(a) (one year prior

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to "minimum eligible parole release date," the Board of Parole

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Hearings shall "normally set a parole release date").

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is required to find a prisoner "suitable" for parole, and to set

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a release date, unless it finds that he is a current danger to the

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community, in which case, it must find that he is "unsuitable" for

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parole.

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provides that "'the Board must grant parole unless it determines

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that public safety requires a lengthier period of incarceration'").

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(emphasis in text), quoting In re Rosenkrantz, 29 Cal. 4th 616

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(2002). Cal. Penal Code § 3041(b) (the Board “shall normally set

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a parole release date” at the parole hearing); Cal. Admin. Code,

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tit. 15, § 2281(a) ("a life prisoner shall be found unsuitable for

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and denied parole if in the judgment of the panel the prisoner will

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pose an unreasonable risk of danger to society if released from

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prison").

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Board

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"unsuitable" for parole.

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The first hearing to determine suitability

The Board

Lawrence, 44 Cal. 4th at 1204 (the governing statute

Plaintiffs' constitutional challenges arise once the

decides

A.

Id.

whether

the

prisoner

is

either

"suitable"

or

Proposition 9.7

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The California Supreme Court recently decided, in a habeas
case, that Marsy’s Law does not violate the Ex Post Facto Clause
of the U.S. Constitution, on its face, or as applied to the
petitioner. In re Vicks, 56 Cal. 4th 274 (2013). Although Vicks’
conviction pre-dated Marsy’s Law, the court “decline[d] to
undertake an analysis of whether Marsy’s Law violated ex post facto
principles as it is being applied to life prisoners whose
commitment offenses occurred before the passage of Marsy’s Law;
Vicks did not raise this contention below, and the evidence of
which he seeks judicial notice does not provide a basis for this
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If the Board finds the prisoner "unsuitable" for parole, it

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sets a deferral period before the prisoner will next be considered

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for parole.

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of Proposition 9, the default deferral period was one (1) year.

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See [former] Cal. Penal Code § 3041.5(b)(2) (1995).

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plaintiffs were entitled to an annual parole hearing, unless the

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Board made written findings that a longer deferral period was

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warranted.

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the initial parole hearing, absent a board finding “that it is not

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reasonable to expect that parole would be granted” during the

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following year or years).

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warranted, however, the Board could only defer the next hearing for

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two years, or for a maximum of five years.8

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Cal. Penal Code § 3041.5(b)(3).

Prior to the passage

That is,

Id. (“The board shall hear each case annually” after

Even if a longer deferral period was

See id.

Proposition 9, “Marsy’s Law,” enacted in November 2008,

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amended

section

3041.5

“to

increase

the

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hearings, absent a finding by the Board that an earlier hearing is

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appropriate.”

Vicks, 56 Cal. 4th at 283.

time

between

parole

Indeed it dramatically

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court to address the issue.”
Id. at 317. Accordingly, the
question that is before this court is the very question the
California Supreme Court declined to rule upon. In any event,
while this court accords great respect to a constitutional decision
of the state’s highest court, this court is not bound by its
interpretation of the federal Constitution.
See Bittaker v.
Enomoto, 587 F.2d 400, 402 n.1 (9th Cir. 1978), cert. denied, 441
U.S. 913 (1979).
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The five year deferral possibility applied to prisoners
convicted of murder, and was added to the law in 1994. Cal. Penal
Code § 3041.5(b)(2) (1995). Before that, deferrals could be for
two, three or a maximum of five years, pursuant to several
amendments to Section 3041.5. See Cal. Penal Code § 3041.5(b)(2)
(1991) (reflecting 1990 amendments); Cal. Penal Code § 3041.5(b)(2)
(1987) (reflecting 1981 and 1982 amendments).
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changed the timing and process for prisoners' parole hearings when

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it was enacted in November 2008.

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the default interval between hearings to fifteen years (abolishing

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the annual review), increased the minimum deferral period to three

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years (from one year), increased the maximum deferral period to

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fifteen years (from five years), shifted the burden from the Board

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to the prisoner to show that the default deferral period should not

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be used, and then imposed a higher burden of proof, now requiring

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the prisoner to show by "clear and convincing" evidence that the

Specifically, the law increased

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default deferral period should not be used.

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Cal. Penal Code

§ 3041.5(b)(3); Vicks, 56 Cal. 4th at 284.

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In addition, Proposition 9 expressly provided for an "advance

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hearing," pursuant to which a prisoner could request a parole

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hearing sooner than the default 15 year period would have allowed.

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Id., § 3041.5(d); Vicks, 56 Cal. 4th at 284-85.

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make an advance hearing request “at any time” after a denial of

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parole at a regularly scheduled parole hearing, and then every

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three years thereafter.

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hearing request procedure), (d)(3) (three-year restriction); Vicks,

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56 Cal. 4th at 286 (“a prisoner may make his or her first request

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for a new hearing at any time following the denial of parole at a

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regularly scheduled hearing, and then may make another request

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every three years”).

A prisoner can

Cal. Penal Code § 3041.5(d)(1) (advance

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B.

Proposition 89.

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If the Board finds the prisoner "suitable" for parole, it sets

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a parole release date, using standards prescribed by law and
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regulation. Cal. Penal. Code § 3041(a).9 Panel decisions granting

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parole are reviewed by the Board’s chief counsel (or designee).

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Id.

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written report on each case in which parole has been granted.

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Plaintiffs’ Statement of Undisputed Facts in Support of Plaintiffs’

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Motion for Summary Judgment (“PSUF”) (ECF No. 428-3) ¶ B.10

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as the “Executive Case Summary” (ECS), the report is an overview

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of the prisoner’s central prison files as well as the evidence and

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the findings from the hearing that resulted in a parole grant. Id.

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Each ECS includes information about the prisoner’s term, as set by

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the panel that granted parole, as well as the calculated release

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date for the prisoner based on that term.

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offenses were committed, the Board’s parole decisions were not

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subject

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Undisputed Facts in Support of their Motion for Summary Judgment

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(“DSUF”) (ECF No. 425 at 47-52)11 ¶ 20.

During the review process, the chief counsel prepares a

to

gubernatorial

review.

Id.

Known

At the time the

Defendants’

Statement

of

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The considerations include the desire to impose "uniform
terms for offenses of similar gravity and magnitude with respect
to their threat to the public," compliance with the sentencing
rules that the Judicial Council of California may issue, sentencing
information relevant to the setting of parole release dates, the
number of victims of the crime, as well as mitigating and
aggravating factors. Cal. Penal Code § 3041(a);
see also, See Cal.
Admin. Code tit. 15, §§ 2289 (computation of parole date); Cal.
Admin. Code tit. 15, §§ 2282 (base term), 2283 (aggravation of the
base term); 2284 (mitigation of the base term); 2285-86
(enhancements for firearms use and for other reasons).
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The court cites the respective parties’ statements of
undisputed facts when the opposing party has not disputed the
asserted fact.
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Page numbers refer to the CM/ECF page number, not the
internal document page number.
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Article V, section 8 of the California Constitution was

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amended by the voters with the passage of Proposition 89 on

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November 8, 1988. DSUF ¶ 19. Proposition 89 added subdivision (b)

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to allow the Governor a 30-day period to “affirm, modify or

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reverse”

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“Board”), “with respect to the granting, denial, revocation,

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suspension or parole of a person sentenced to an indeterminate term

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upon a conviction of murder ....”

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any

decision

of

the

Board

of

Parole

Hearings

(the

Id.12

As part of his review, the Governor receives the Executive

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Case Summary for the prisoner.

PSUF ¶ D.

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authority is neutral, under the amendment, and allows him to review

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denials as well as grants of parole.

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through 2010, the Governor reviewed only three decisions denying

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parole, affirming all three.

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Governor reversed 1,255 grants of parole made to prisoners who were

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convicted of murder before Proposition 89 passed.

Id.

Id.

The Governor’s review

However, from 1991

During that same period, the

Id. ¶ E.

These

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The amendment provides:

No decision of the parole authority of this state with
respect to the granting, denial, revocation, or
suspension of parole of a person sentenced to an
indeterminate term upon conviction of murder shall
become effective for a period of 30 days, during which
the Governor may review the decision subject to
procedures provided by statute. The Governor may only
affirm, modify, or reverse the decision of the parole
authority on the basis of the same factors which the
parole authority is required to consider. The Governor
shall report to the Legislature each parole decision
affirmed, modified, or reversed, stating the pertinent
facts and reasons for the action.
Cal. Const. Art. V, § 8(b).
8

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reversals represent more than 70 percent of the Board’s grants of

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parole made to prisoners with murder convictions.

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the time the Governor acted in those cases, over 90 percent of the

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prisoners were beyond their calculated release dates.

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Governor not reversed the grants, those prisoners would have been

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immediately released; because of the Governor’s reversal, however,

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the prisoners remained in custody.

PSUF ¶ E.

At

Had the

Id.

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After passage of Proposition 89, named class members James

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Masoner, Richard W. Brown, Edward Stewart, Mario Marquez, Richard

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Lewis and Gloria Olson, were found suitable for parole by the

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Board.

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Proposition 89, reversed the Board’s decisions regarding these

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plaintiffs.

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II.

DSUF ¶ 21.

The Governor, exercising his authority under

Id.

STANDARDS

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A.

Summary Judgment.

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Summary judgment is appropriate “if the movant shows that

17

there is no genuine dispute as to any material fact and the movant

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is entitled to judgment as a matter of law.”

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56(a); Ricci v. DeStefano, 557 U.S. 557, 586, 129 S. Ct. 2658, 2677

20

(2009) (it is the movant’s burden “to demonstrate that there is ‘no

21

genuine issue as to any material fact’ and that they are ‘entitled

22

to judgment as a matter of law’”); Walls v. Central Contra Costa

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Transit Authority, 653 F.3d 963, 966 (9th Cir. 2011) (per curiam)

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(same).

Fed. R. Civ. P.

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Consequently, “[s]ummary judgment must be denied” if the court

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“determines that a ‘genuine dispute as to [a] material fact’
9

1

precludes immediate entry of judgment as a matter of law.”

Ortiz

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v. Jordan, 562 U.S. ___, 131 S. Ct. 884, 891 (2011), quoting Fed.

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R. Civ. P. 56(a); Comite de Jornaleros de Redondo Beach v. City of

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Redondo Beach, 657 F.3d 936 (9th Cir. 2011) (en banc) (same), cert.

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denied, 132 S. Ct. 1566 (2012).

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Under summary judgment practice, the moving party bears the

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initial responsibility of informing the district court of the basis

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for its motion, and “citing to particular parts of the materials

9

in the record,” Fed. R. Civ. P. 56(c)(1)(A), that show “that a fact

10

cannot be ... disputed.”

Fed. R. Civ. P. 56(c)(1); Nursing Home

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Pension Fund, Local 144 v. Oracle Corp. (In re Oracle Corp.

12

Securities Litigation), 627 F.3d 376, 387 (9th Cir. 2010) (“The

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moving party initially bears the burden of proving the absence of

14

a genuine issue of material fact”), citing Celotex v. Catrett, 477

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U.S. 317, 323 (1986).

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However, “[w]here the non-moving party bears the burden of

17

proof at trial, the moving party need only prove that there is an

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absence of evidence to support the non-moving party’s case.”

19

Nursing Home Pension Fund, Local 144 v. Oracle Corp. (In re Oracle

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Corp. Securities Litigation), 627 F.3d 376, 387 (9th Cir. 2010).

21

If the moving party meets its initial responsibility, the

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burden then shifts to the non-moving party to establish the

23

existence of a genuine issue of material fact.

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Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986);

25

Oracle Corp., 627 F.3d at 387 (where the moving party meets its

26

burden,

“the

burden

then

shifts
10

to

the

Matsushita Elec.

non-moving

party

to

1

designate specific facts demonstrating the existence of genuine

2

issues for trial”). In doing so, the non-moving party may not rely

3

upon the denials of its pleadings, but must tender evidence of

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specific facts in the form of affidavits and/or other admissible

5

materials in support of its contention that the dispute exists.

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Fed. R. Civ. P. 56(c)(1)(A).

7

“In evaluating the evidence to determine whether there is a

8

genuine issue of fact,” the court draws “all reasonable inferences

9

supported by the evidence in favor of the non-moving party.”
653

F.3d

at

966.

Because

the

court

only

considers

10

Walls,

11

inferences “supported by the evidence,” it is the non-moving

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party’s obligation to produce a factual predicate as a basis for

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such inferences.

14

898, 902 (9th Cir. 1987).

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simply show that there is some metaphysical doubt as to the

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material facts ....

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lead a rational trier of fact to find for the nonmoving party,

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there is no ‘genuine issue for trial.’”

19

586-87 (citations omitted).

See Richards v. Nielsen Freight Lines, 810 F.2d
The opposing party “must do more than

Where the record taken as a whole could not

Matsushita, 475 U.S. at

20

B.

21

Fed. R. Civ. P. 65 provides authority to issue a preliminary

22

injunction. However, it is an "extraordinary remedy, never awarded

23

as of right."

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555 U.S. 7, 24 (2008).

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Preliminary Injunction.

Winter v. Natural Resources Defense Council, Inc.,

A plaintiff seeking a preliminary injunction must
establish [1] that he is likely to succeed on the
merits, [2] that he is likely to suffer irreparable harm
11

1
2

in the absence of preliminary relief, [3] that the
balance of equities tips in his favor, and [4] that an
injunction is in the public interest.

3

Rodriguez v. Robbins, ___ F.3d ___, 2013 WL 1607706 at *2, 2013

4

U.S. App. LEXIS 7565 at *10-*11 (9th Cir. 2013), quoting Winter,

5

555 U.S. at 20.

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C.

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Class certification is proper, and therefore may withstand a

8

motion to decertify, only “if the trial court is satisfied, after

9

a rigorous analysis, that the prerequisites of Rule 23(a) have been

10

satisfied.” General Telephone Co. of Southwest v. Falcon, 457 U.S.

11

147, 161 (1982).

Class Decertification.

The Federal Rules provide:

One or more members of a class may sue or be sued as
representative parties on behalf of all members only if:
(1) the class is so numerous that joinder of all members
is impracticable [“numerosity”];(2) there are questions
of law or fact common to the class [“commonality”]; (3)
the claims or defenses of the representative parties are
typical of the claims or defenses of the class
[“typicality”]; and (4) the representative parties will
fairly and adequately protect the interests of the class
[“adequacy” (of representation)].

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13
14
15
16
17
18

Fed. R. Civ. P. 23(a).

19

only if “at least one of the requirements of Rule 23(b)” is

20

satisfied.

21

(9th

22

Rule 23(b)(2), which provides:

23
24
25

Cir.

In addition, class certification is proper

Ellis v. Costco Wholesale Corp., 657 F.3d 970, 979–80
2011).

Here,

the

class

was

certified

under

A class action may be maintained if Rule 23(a) is
satisfied and if: ... the party opposing the class has
acted or refused to act on grounds that apply generally
to the class, so that final injunctive relief or
corresponding
declaratory
relief
is
appropriate
respecting the class as a whole.

26
12

1

Fed. R. Civ. P. 23(b)(2).

2

party that bears the burden has “affirmatively demonstrate[d]” that

3

“there are in fact sufficiently numerous parties, common questions

4

of law or fact, etc.”

5

___, 131 S. Ct. 2541, 2551–52 (2011).13

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III. ANALYSIS - EX POST FACTO CLAUSE.

7

The court must be satisfied that the

Wal-Mart Stores, Inc. v. Dukes, 564 U.S.

9

The ex post facto prohibition forbids the Congress and
the States to enact any law “which imposes a punishment
for an act which was not punishable at the time it was
committed; or imposes additional punishment to that then
prescribed.”

10

Weaver v. Graham, 450 U.S. 24, 28 (1981); CDC v. Morales, 514 U.S.

11

499, 504 (1995) ("Article I, § 10, of the Constitution

12

the states from passing any 'ex post facto law'"), Lynce v. Mathis,

13

519 U.S. 433, 441 (1997) (“To fall within the ex post facto

14

prohibition, a law ... ‘must disadvantage the offender affected by

15

it,’ by ... increasing the punishment for the crime”) (citations

16

omitted).

17

restraining arbitrary and potentially vindictive legislation.”

18

Id., 450 U.S. at 29.

8

“The

ban

also

restricts

governmental

prohibits

power

by

A “central concern” of the Ex Post Facto

19
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24
25
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13

Plaintiffs have already met their burden to establish that
class certification is proper. Nevertheless, in this Circuit, it
again bears the burden on this motion, even though it is
defendants' motion:
as to the class-decertification issue, Marlo, as "[t]he
party seeking class certification [,] bears the burden
of demonstrating that the requirements of Rules 23(a)
and (b) are met."
Marlo v. United Parcel Service, Inc., 639 F.3d 942, 947 (9th Cir.
2011).
13

1

Clause is “‘the lack of fair notice and governmental restraint when

2

the legislature increases punishment beyond what was prescribed

3

when the crime was consummated.’” Lynce, 519 U.S. at 895-96.

4

“Retroactive changes in laws governing parole of prisoners, in some

5

instances, may be violative of this precept.”

6

249-250

7

consideration dates).

8

IV.

(involving

increases

in

Garner, 529 U.S. at

intervals

between

parole

ANALYSIS - PROPOSITION 9 (Claim 8).

9

Plaintiffs challenge Proposition 9, as it applies to them,

10

asserting that the law – by increasing the deferral period between

11

parole hearings – "has created a risk of increased terms to life

12

prisoners"

13

Plaintiffs' Opposition to Defendants’ Motion for Summary Judgment

14

(“Pl. Opp. to D. SJ”) (ECF No. 435) at 6.14

15

argue that the availability of "advance hearings" does not cure the

16

constitutional deficiency.

17

A.

in

violation

Retrospective
Hearings.

of

the

Ex

Post

Facto

Clause.

See

Plaintiffs further

Id.

Increases

in

Intervals

Between

Parole

18
1.

Morales v. California Dep’t of Corrections.

19
In 1994, the Ninth Circuit considered an Ex Post Facto Clause
20
challenge to an earlier change in California parole law.

See

21
Morales v. California Dep’t of Corrections, 16 F.3d 1001 (9th Cir.
22
1994). The change allowed the parole board to avoid the previously
23
required annual parole hearings, and to increase the interval
24
25
26

14

It is undisputed that the enactment is retrospective, that
is, it applies to prisoners whose offenses occurred before
Proposition 9 was enacted.
14

1

between hearings to up to five years, if the board found that

2

parole was unlikely to be granted during the interval.

3

1004.

4

retrospectively, violated the Ex Post Facto Clause:

5
6
7
8

Id., at

The Ninth Circuit held that the law change, as applied

By increasing the interval between parole hearings, the
state has denied Morales opportunities for parole that
existed under prior law, thereby making the punishment
for his crime greater than it was under the law in
effect at the time his crime was committed. ... [A]ny
retrospective law making parole hearings less accessible
would effectively increase the sentence and violate the
ex post facto clause.

9
Id., at 1004.
10
The Supreme Court reversed.

California Dep’t of Corrections

v. Morales, 514 U.S. 499 (1995).

It concluded that "the evident

11
12
focus of the California amendment was merely 'to relieve the
13
[Board] from the costly and time-consuming responsibility of
14
scheduling parole hearings for prisoners who have no reasonable
15
chance of being released.'"

Id., at 507 (internal quotation marks

16
omitted).

The Court rejected the Ex Post Facto challenge because

17
the law change:
18
19
20
21

creates only the most speculative and attenuated
possibility of producing the prohibited effect of
increasing the measure of punishment for covered crimes,
and such conjectural effects are insufficient under any
threshold we might establish under the Ex Post Facto
Clause.

22

Id., 514 U.S. at 509.

In explaining its decision, however, the

23

Court identified several factors that defeated the Ex Post Facto

24

challenge.

25

"only to a class of prisoners for whom the likelihood of release

26

on parole is quite remote."

First, the change in law addressed in Morales applied

Id., at 510.
15

1

Second, the change in law was "carefully tailored" so that it

2

had "no effect on any prisoner" unless the Board had first

3

concluded,

4

unsuitable for parole, but also that 'it is not reasonable to

5

expect that parole would be granted at a hearing during the

6

following years.'”

7

"the authority to tailor the frequency of subsequent suitability

8

hearings

9

prisoner," Id., at 511, which included the possibility that it

10

could conduct subsequent parole hearings annually, as was possible

11

before the law change.15

after

to

the

a

hearing,

"not

Id., at 511.

particular

only

that

the

prisoner

is

Importantly, the Board retained

circumstances

of

the

individual

12

Moreover, the Court noted that in addition to the safeguards

13

it had identified, "'the Board could advance the suitability

14

hearing.’"

15

such an "expedited hearing by the Board -- either on its own

16

volition or pursuant to an order entered on an administrative

Id., at 512.16

The Court found that the possibility of

17
15

18
19
20
21
22
23
24
25
26

Another point noted by the Court was its conclusion that it
was purely speculative whether an earlier release date can be
secured by more frequent parole hearings. Morales, 514 U.S. at
513. That is because it held that, even if parole were granted at
the initial hearing, the actual release date could be set years
after the parole hearing, depending on the Board’s calculation of
his “base term,” the base term being calculated from a matrix used
by the Board.
16

This possibility was "suggested" by the California Supreme
Court in In re Jackson, 39 Cal. 3d 464, 475 (1985) ("it is
conceivable that the Board could advance the suitability hearing
and order immediate release"). It was also "indicated" by the CDC
in a footnote to its Supreme Court Reply Brief, Petitioner's Reply
Brief in CDC v. Morales, at 3 n.1, 1994 WL 707994 ("the practice
of the Board is that it will review for merit any communication
from an inmate asking for an earlier suitability hearing").
16

1

appeal -- would remove any possibility of harm even under the

2

hypothetical circumstances suggested by respondent." Id., at 512-

3

13.

4

2.

Garner v. Jones.

5

A few years after Morales, the Eleventh Circuit was faced with

6

a change in Georgia law that increased the interval between parole

7

hearings from three years to eight years. See Jones v. Garner, 164

8

F.3d 589 (11th Cir. 1998). Fully aware of the decision in Morales,

9

the Eleventh Circuit found that the change in law that it faced was
The grounds of

10

entirely different from that effected in Morales.

11

distinction were, that the Georgia prisoners were not those only

12

"remotely" likely to be paroled, unlike those in Morales; and the

13

interval between parole hearings was not "finely tailored," as in

14

Morales, because it was simply increased to one hearing every eight

15

years.

16

before he was initially considered for parole, the Board amended

17

its rules to require that parole reconsideration take place only

18

once

19

distinguished Morales after determining that the Georgia prisons’

20

policy

21

“unenforceable and easily changed, and adherence to them is a

22

matter of the Board’s discretion.”

23

Jones, 164 F.3d at 590 (“After Jones was incarcerated, but

every

eight

statements

years”).

Finally,

regarding

The Supreme Court reversed.

the

Eleventh

“expedited”

hearings

Circuit

were

Id., at 595.
Garner v. Jones, 529 U.S. 244

24

(2000).

It found that the grounds of distinction the Eleventh

25

Circuit relied upon were not dispositive, because the question

26

still

remained

"whether

the

amended
17

Georgia

Rule

creates

a

1

significant risk of prolonging respondent's incarceration."

2

529 U.S. at 255.

3

not show that such a risk existed.

4

the parole board had discretion on how often to grant a parole

5

hearing, so long as one was held at least once every eight years.

6

Id., 529 U.S. at 254.

7

Id.,

The Court found that the record in that case did
Rather, the Court held that

Moreover, the Court concluded that prisoners had the ability

8

to seek an advance hearing.

9

formal policies, the parole board would consider requests for

10

advance hearings where the prisoners made a showing "of a 'change

11

in their circumstances' or upon the Board's receipt of 'new

12

information.'"

13

it was error for the Eleventh Circuit to not consider the effect

14

of the availability of advance hearings on the likelihood that a

15

prisoner's incarceration would be lengthened beyond the term

16

imposed when the crime was committed.
3.

17
On

18

The Court found that pursuant to its

Id., 529 U.S. at 257.

The Court determined that

Gilman v. Schwarzenegger

February

4,

2010,

this

court

granted

a

preliminary

Gilman v. Davis, 690 F.

19

injunction to plaintiffs in this case.

20

Supp.

21

distinguished Morales and Garner.

22

Morales, Proposition 9 increased the interval between parole

23

hearings for every member of the plaintiff class, no matter what

24

his circumstances, no matter how quickly he may be progressing

25

toward suitability for parole, and no matter how willing the Board

26

might be to grant him more frequent parole hearings.

2d

1105

(E.D.

Cal.

2010)

18

(Karlton,

J.).

The

court

First, unlike the law change in

The ability

1

of the Board to “tailor” the parole hearing deferral to the facts

2

before them – so critical to the decision in Morales – was missing

3

in Proposition 9.

4

the availability of advance hearings, class members can secure a

5

parole hearing no more frequently than every three years.17

See Gilman, 690 F. Supp. 2d at 1120.

Even with

6

Second, the court found that class members here were not

7

uniformly unlikely to be granted parole during the default deferral

8

period.

9

distinguished these plaintiffs from those in Morales, who faced

10

See Gilman, 690 F. Supp. 2d at 1120.

This further

only a “remote” chance of parole.

11

Finally, the court found that the theoretical availability of

12

advance hearings were not sufficient to overcome an Ex Post Facto

13

challenge.

14

argued, there was no mechanism in place for initiating or accepting

15

petitions to advance a hearing." Id., at 1121. Further, the court

16

found that an ad-hoc advance hearing system was insufficient to

17

overcome the challenge, and that such a system itself created a

18

significant

19

because of the delays inherent in that system.

The court found that "[a]t the time these motions were

risk

of

increasing

the

plaintiffs’

incarceration

Id., at 1121-22.18

20
17

21
22
23
24
25
26

For example, if a prisoner is denied parole and has his
next parole hearing deferred for the default interval – fifteen
years – he can seek an advance hearing at any time thereafter.
However, if his requested advance hearing is denied (or granted,
but parole is denied), he can only seek another advance hearing
every three years, until the fifteen year deferral is completed.
18

This court rejected plaintiffs’ argument that the Board was
free to simply deny an advance hearing even if a prisoner had made
the required showing. See Gilman, 690 F. Supp. 2d at 1122 (the
court “must assume that the Board will exercise a neutral grant of
discretion in a manner consistent with the Ex Post Facto Clause”).
19

1

Accordingly, this court found that the changes brought about by

2

Proposition 9 "create a risk of prolonged incarceration, and

3

plaintiffs are likely to succeed in showing that this risk is

4

significant

5

hearings."

6

despite

the

possible

availability

of

advanced

Id., at 1124.

The Ninth Circuit reversed.

Gilman v. Schwarzenegger, 638

7

F.3d 1101 (9th Cir. 2011).

The Ninth Circuit agreed that "the

8

changes required by Proposition 9 appear to 'create[] a significant

9

risk of prolonging [Plaintiffs'] incarceration.'"

Id., at 1108.

10

However, even assuming that this significant risk did exist, the

11

Ninth Circuit concluded that:

12
13

Here, as in Morales, an advance hearing by the Board
"would remove any possibility of harm" to prisoners
because they would not be required to wait a minimum of
three years for a hearing.

14
15

Id., at 1108, quoting Morales, 514 U.S. at 513.

16

a preliminary injunction in the case was not warranted because

17

plaintiffs failed to present any evidence that the advance hearing

18

was insufficient protection.

19

On

appeal,

plaintiffs

whether

grant

advance

objection

discretionary with the Board, and that the Board could deny an

22

advance hearing even where the prisoner had made the required

23

showing that he was now suitable for parole.

24

rejected the objection because plaintiffs failed to produce any

25

evidence to counter the presumption "that the Board will, upon

26

request,

20

for

was

the

21

hearings

hearing

that

decision

advance

an

their

20

schedule

to

pressed

Gilman held that

purely

The Ninth Circuit

prisoners

who

become

1

suitable for parole prior to their scheduled hearings."

2

Gilman,

638 F.3d at 1109-10.19

3

B.

Defendants' Motion for Summary Judgment, Proposition 9.

4

Defendants move for summary judgment. They argue first, that

5

Proposition 9 is the type of procedural change that is not covered

6

by the Ex Post Facto clause, and that in any event, plaintiffs can

7

produce no evidence showing that Proposition 9 in fact creates a

8

"significant risk" of increasing the class members' incarceration.

9

See Defendants’ Motion for Summary Judgment (“Defendants’ Motion”)

10

(ECF

11

availability of the “advance hearing” process "necessarily defeats

12

plaintiffs' claim."

13

No.

In

425)

at

opposing
argue

14-20.

Defendants

argue

second,

that

the

Id., at 20-25.
defendants'

that

the

motion

existence

for
of

summary

advance

judgment,

14

plaintiffs

hearings

is

15

insufficient to cure the constitutional violation: the Board's

16

discretion in granting advance hearings is so broad that it could

17

deny an advance hearing even if the prisoner showed that he was

18

suitable for parole; Proposition 9 does not permit the fine

19

“tailoring” of deferral periods that were critical to the decisions

20
21
22
23
24
25
26

19

Plaintiffs also objected that: there was "'no mechanism or
procedure in place for the Board to initiate a review or to accept,
consider or rule on a prisoner's request [for an advance hearing,'"
but they adduced no evidence that the Board "denied or failed to
respond to requests for advance hearings;" an advance hearing will
not be held within a year of the request, but failed to adduce any
evidence to that effect; and prisoners would not be able to
establish changed circumstances warranting earlier parole, but they
failed to show that the task differed from the ordinary request for
parole, in which the prisoner must show changed circumstances
warranting parole.
21

1

in Garner and Morales; and the rate of summary denials of advance

2

hearing petitions is so high that it cannot rescue Proposition 89

3

from an ex post facto violation.

4

1.

5

“Procedural” changes.

Defendants

weakly

argue

that

Proposition

9

effected

6

“procedural” changes, and thus, under Morales and Garner, they are

7

immune to challenge under the Ex Post Facto Clause. The court does

8

not agree.

9

intervals between parole hearings passed muster under the Ex Post

Morales and Garner did not find that increasing

10

Facto Clause because they only effected a “procedural” change.

11

Rather, they rejected the claims because petitioners failed to show

12

that the law increasing intervals between parole hearings – even

13

if

14

incarceration.

15

procedural change violates the Ex Post Facto Clause when it

16

‘creates

17

incarceration”), quoting Garner, 529 U.S. at 251.

18

not rejected merely because the changes were “procedural.”

19

“procedural”

a

–

created

significant

risk

of

increased

See Gilman, 638 F.3d at 1106 (“A retroactive

significant

Defendants

a

make

a

risk

of

more

prolonging

energetic

[an

inmate’s]

The claims were

argument

regarding

20

“procedural” changes in their motion for summary judgment on the

21

Proposition 89 claim, and so it is further discussed there.

22

2.

Advance Hearings and Evidence of Significant Risk
of Increased Incarceration.

23
Defendants assert that the availability of advance hearings
24
necessarily defeats the Proposition 9 claim, citing Morales, Garner
25
and Gilman.

In fact, the Ninth Circuit has already ruled, in an

26
22

1
2
3

appeal from this case, that:
as in Morales, an advance hearing by the Board “would
remove any possibility of harm” to prisoners because
they would not be required to wait a minimum of three
years for a hearing.

4
5

Gilman, 638 F.3d at 1109.

6

the Ninth Circuit’s decision does not defeat their claim.

7

a.

Plaintiffs assert several reasons why

Discretion
under
§ 3041.5(b)(4).

Cal.

Penal

Code

8
Plaintiffs, citing Cal. Penal Code § 3041.5(b)(4), argue that
9
advance hearings are inadequate because the Board may, in its
10
discretion, legally decline to advance a hearing, even when the
11
prisoner has made the required showing:
12
13
14

the Board's discretion in ruling on advanced hearing
requests is so broad that the Board may legally deny an
advanced hearing even if the prisoner establishes new
information/changed circumstances and a reasonable
likelihood of a parole grant.

15
16

Pl. Opp. to DSJ at 4; Plaintiffs' Statement of Undisputed Facts

17

No. 15 (asserting that the Board "may, in its discretion, decline

18

to advance a hearing" even if the prisoner makes the required

19

showing, citing Cal. Penal Code § 3041.5(b)(4)).

20

This argument fails for several reasons. First, the language

21

of the statute is not probative of plaintiffs' assertion that the

22

Board does in fact deny advance hearings despite the prisoner's

23

having made the required showing.

24

the Board "may" grant an advance hearing once the required showing

25

is made:

26

The statute provides only that

The board may in its discretion, after considering the
23

1

4

views and interests of the victim, advance a hearing set
pursuant to paragraph (3) to an earlier date, when a
change in circumstances or new information establishes
a reasonable likelihood that consideration of the public
and victim's safety does not require the additional
period of incarceration of the prisoner provided in
paragraph (3).

5

Cal. Penal Code § 3041.5(b)(4). The statute does not authorize the

6

Board to decline to grant an advance hearing once the prisoner has

7

made the required showing, nor is such authorization a reasonable

8

inference from the statutory language.

2
3

9

Second, the Board cannot "legally" deny an advance hearing

10

once the prisoner makes the required showing, as that would be an

11

abuse of its discretion:
If the change in circumstances or new information
establishes that there is no longer an evidentiary basis
for concluding the prisoner is a current threat to
public safety, the Board will abuse its discretion if it
declines to advance the hearing date and find the
prisoner suitable for parole.

12
13
14
15
16

Vicks, 56 Cal. 4th at 311;20 see also Gilman, 638 F.3d at 1109-10

17

(referring to the presumption that the Board will properly exercise

18

its

19

(rejecting

20

preliminary injunction stage, this court states: “I must assume

21

that the Board will exercise a neutral grant of discretion in a

22

manner consistent with the Ex Post Facto Clause”).

23

discretion);

Gilman

plaintiffs’

v.

Davis,

identical

690

F.

Supp.

argument

2d

made

at

1122

at

the

Finally, the evidence the parties have presented indicates

24
25
26

20

The failure to grant an advance hearing is reviewable in
court for a "manifest abuse of discretion." Cal. Penal Code
§ 3041.5(d)(2).
24

1

that the Board instructs its decisionmakers to deny the advance

2

hearing only if the prisoner fails to make the required “prima

3

facie” showing.

4

Hearing Exhibit 35 (ECF No. 341-3) (setting forth grounds for

5

summary denial); Preliminary Injunction Hearing Transcript (ECF

6

No. 347) 25-28 (Testimony of Sue Facciola) (“Facciola Test.”)

7

(establishing that summary denials occur only if prisoner fails to

8

make a prima facie case for an advance hearing).

9

introduced no contrary evidence to show, for example, that the

10

Board

11

See, e.g., Plaintiffs’ Preliminary Injunction

received.

12
13

decision-makers

fail

to

follow

the

Plaintiffs have

instructions

they

Accordingly, this argument is insufficient to stave off
summary judgment on the Proposition 9 claim.

14

b.

Three-year interval for advance hearings.

15

Plaintiffs argue that the advance hearings are insufficient

16

because the Board “has no discretion since Proposition 9 to set a

17

deferral period of less than three years no matter how appropriate

18

it believes a deferral of one or two years is.”

19

Opposition at 3 n.3.

20

at least in part, on the fact that the parole board “retains the

21

authority

22

hearings

23

prisoner.”

to
to

tailor
the

Plaintiffs’

The decisions in Morales and Garner turned,

the

frequency

particular

of

subsequent

circumstances

of

the

suitability
individual

Morales, 514 U.S., at 511.

24

The California Supreme Court has clarified that “a prisoner

25

may make his or her first request for a new hearing at any time

26

following the denial of parole at a regularly scheduled hearing,
25

1

and then may make another request every three years.”

2

Cal. 4th at 286 (emphasis added).

3

follows a deferral of three years, the Board must consider granting

4

a hearing less than three years into the future.

5

Vicks, 56

Thus if the advance hearing

However, plaintiffs are correct that the request for an

6

advance hearing can be made only once every three years.

7

56 Cal. 4th at 286.21

8

annual parole hearings.

9

ingredient upon which the constitutionality of the enactments in

10

Morales and Garner turned. Plaintiffs should be permitted at trial

11

to show that this missing ingredient in fact creates a significant

12

risk that their incarceration will be prolonged.
c.

13

Vicks,

Thus, the Board cannot grant, for example,
As such, Proposition 9 is missing a key

Statistical evidence of the “safety net.”

14

Plaintiffs assert that the advance hearing procedures fail to

15

"catch" those prisoners who deserve advance hearings, that is,

16

those prisoners who have moved from unsuitability to suitability

17

for parole. Pl. Opp. to DSJ at 4-5. Plaintiffs have now presented

18

evidence

19

Proposition 9, 106 of them – or over 90% – were "summarily denied."

20

See Plaintiffs’ Statement of Additional Material Facts (“PSUF-

that

of

119

advance

hearing

petitions

filed

after

21
22
23
24
25
26

21

“If the request is denied, the inmate may not make another
request for three years. Similarly, if the Board holds an earlier
parole suitability hearing — 'a hearing described in subdivision
(a)' — rather than denying the request, and it declines to set a
parole date after the hearing, the inmate may not make another
request for three years after this more recent decision of the
Board.” Vicks, 56 Cal. 4th at 286.
26

1

Additional”) (ECF No. 435-3) Nos. 17 & 18.22

2

In essence, plaintiffs are arguing that notwithstanding the

3

Board’s legal obligation to grant an advance hearing when a

4

prisoner makes the proper showing, the evidence shows that the

5

Board nevertheless denies such hearings, using the summary denial

6

process.

7

the preliminary injunction, but it did so on the grounds that

8

plaintiffs had “adduced no evidence that the Board has denied a

9

request for an advance hearing where a prisoner has shown a change

10

The Ninth Circuit rejected this argument on appeal from

in circumstances or new evidence.”

Gilman, 638 F.3d at 1109.

11

However, plaintiffs have now adduced evidence from which this

12

court can infer that the Board has denied advance hearings even

13

where a prisoner has shown the required change in circumstances.

14

First, as noted, 90% of advance hearing petitions are summarily

15

denied. PSUF-Additional ¶ 17.23 Second, plaintiffs have presented

16

evidence that of these, some number of prisoners have shown – at

17

least sufficiently to avoid summary judgment – that they were, in

18

fact, suitable for parole.

PSUF-Additional ¶¶ 39 & 41.24

19
22

20
21
22
23
24

In addition, eight were denied following a "full review,"
and five were granted.
Of the five that were granted, three
advance hearings were scheduled, and two had not been scheduled.
PSUF-Additional ¶¶ 17 & 18.
23

Plaintiffs rely on Summary Exhibit 37 from the April 6,
2011 preliminary injunction hearing, conducted after the Ninth
Circuit’s decision in Gilman, for this fact. Defendants do not
dispute this fact.
24

25
26

These exhibits were also admitted at the April 6, 2011
preliminary injunction hearing. Defendants do not dispute the
facts asserted, although they argue that the subsequent findings
of suitability could just be the result of different decision27

1

Specifically, plaintiffs’ evidence shows that class plaintiffs

2

Henry Bratton and James Alexander were denied parole and given

3

three-year deferrals. Id. Their requests for advance hearings were

4

then summarily denied.25

5

managed to get hearings before the three-year interval for other

6

reasons, and both were granted parole at those early hearings.

7

Id., ¶¶ 39 & 41.

8

the summary denial process itself was invalid or constitutionally

9

tainted.

Id., ¶ 42. These plaintiffs nevertheless

Plaintiffs do not present direct evidence that

Accordingly, plaintiffs ask the court to infer strictly

10

from the results – over 90% summary denials, at least some number

11

of which were of prisoners who had in fact reached suitability –

12

that the advance hearing process is insufficient to avoid the Ex

13

Post Facto violation.

14

The court believes that it is a reasonable inference from

15

these undisputed facts that there is something wrong with the

16

advance hearing process.

17

all reasonable inferences for plaintiffs, who oppose summary

18

judgment on this claim.

The court of course, is required to draw

Without further development of the

19
20
21
22
23
24
25
26

makers reaching different decisions. On this summary judgment
motion, the court draws the reasonable inference that these
prisoners established to the satisfaction of the Board that they
were “suitable” for parole, and that they did so at an earlier time
than they could have done under the advance hearing procedure.
25

Plaintiffs include class plaintiff Billy Counts in this
group. PSUF-Additional ¶ 40. However, Counts’ request for an
advance hearing was made after he had already been granted an
earlier (one-year) deferral, and his request was denied after he
had already been granted parole. The court cannot draw any
inference from this case that the advance hearing process fails to
“catch” prisoners who have moved to suitability.
28

1

evidence, the court cannot say that the “something wrong” is a flaw

2

in the advance hearing process,26 an unwillingness on the part of

3

the Board to grant advance hearings even when a prisoner has made

4

the required showing, or even something having no constitutional

5

relevance.

6

point at trial.

7

will be denied.27

8

V.

Plaintiffs are entitled to make their case on this
Accordingly, summary judgment on Proposition 9

ANALYSIS - PROPOSITION 89 (Claim 9).

9

Plaintiffs challenge Proposition 89 as it is applied to them,

10

because it gives the Governor the power to reverse parole grants

11

from the Board, which had previously been final with the Board.28

12

In Johnson v. Gomez, the Ninth Circuit found that Proposition 89

13

“simply removes final parole decisionmaking authority from the BPT

14

and places it in the hands of the governor.”

92 F.3d at 967.29

15

The enactment was neutral, the court found, because it gives

16

the governor the power to affirm or reverse the board, and further,

17

“the governor must use the same criteria as” the Board.

Id.

The

18
19
20

26

For example, it may be unnecessarily complex, preventing
unrepresented prisoners from successfully navigating it.
27

21
22
23
24
25
26

Obviously, the court is not finding that plaintiffs have
proven their position; rather, the court is simply saying that the
factual posture is such as to permit them to prove their assertion
at trial.
28

It is undisputed that the enactment is retrospective, that
is, it applies to prisoners whose offenses occurred before
Proposition 89 was enacted.
29

The Board of Parole Hearings, is an Executive Branch agency
whose members are all appointed by the governor, with the consent
of the state senate (Cal. Gov. Code § 12838.4).
29

1

court indicated that an ex post facto challenge to Proposition 89

2

could succeed only if plaintiffs could show “with certainty” or

3

“with assurance,” that they would have been granted parole under

4

the old system, in which the Board had the final say.

5

& 968.

6

Ninth Circuit held that Proposition 89 did not violate the Ex Post

7

Facto Clause of the U.S. Constitution.

Id., at 967

Finding that plaintiff could not make this showing, the

Id., at 968.

8

However, after the Ninth Circuit decision in Gomez, the

9

Supreme Court issued its decision in Garner v. Jones, 529 U.S. 244,
As this court has previously held, Garner changed

10

245-246 (2000).

11

or clarified the law in ways that directly affect this case.

12

See ECF No. 218.

13
14
15

The Supreme Court held:

In the case before us, respondent must show that as
applied to his own sentence the law created a
significant risk of increasing his punishment.
Garner, 529 U.S. at 255.

16

Accordingly, even where a statute does not facially violate

17

the ex post facto clause, Garner establishes that plaintiffs may

18

still be able to make an “as applied” challenge.

19

a challenge, plaintiffs can use “evidence drawn from the rule's

20

practical implementation by the agency charged with exercising

21

discretion, that its retroactive application will result in a

22

longer period of incarceration than under the earlier rule.”

23

addition, plaintiffs do not need to show “with certainty” or “with

24

assurance,” that Proposition 89 extended their sentences. Rather,

25

they need only show that the law created a “significant risk” of

26
30

In mounting such

In

1

increasing their punishment.30

2

A.

3

Defendants argue that the change effected by Proposition 89

4

does not violate the Ex Post Facto Clause as a matter of law, and

5

accordingly move for summary judgment on three legal grounds. None

6

of defendants’ arguments are persuasive.

7

Defendants' Motion for Summary Judgment, Proposition 89

1.

Whether Proposition 89 Left Plaintiffs’ Punishment
Unchanged as a Matter of Law.

8
Defendants assert that before the enactment of Proposition 89,
9
plaintiffs’ punishment was “a lifetime in prison,” and that is the
10
punishment they are subject to after Proposition 89.

Therefore,

11
defendants argue, there is no Ex Post Facto violation, citing
12
Collins v. Youngblood, 497 U.S. 37 (1990).

This argument fails

13
because

its

premise

is

incorrect.

The

sentence

before

the

14
enactment of Proposition 89 was life in prison with the possibility
15
of parole, not simply “life in prison.” See, e.g., U.S. v. Paskow,
16
11 F.3d 873, 879 (9th Cir. 1993) (“parole eligibility is part of
17
the sentence for the underlying offense”).
18
It is the “possibility of parole” that is the whole focus of
19
20
21
22
23
24
25
26

30

The Governor already had the authority to grant a reprieve,
pardon, or commutation of the sentence of any prisoner. See Cal.
Const. Art. V, § 8(a). Plaintiffs therefore argue that
Proposition 89 only added the power to lengthen incarcerations, by
reversing grants of parole. However, it also added the power to
shorten an incarceration, by giving the Governor a new option,
namely, granting parole even though the Board did not authorize it
(however, there is no evidence in the record that this has ever
happened). In this way, in theory, while a Governor might decline
to commute a sentence entirely (thus releasing the prisoner into
the population without supervision), the Governor might, at least
theoretically, be willing to grant parole (and its consequent
supervision) to that same prisoner.
31

1

this claim:

2

As we recognized in Weaver, retroactive alteration of
parole or early release provisions, like the retroactive
application
of
provisions
that
govern
initial
sentencing, implicates the Ex Post Facto Clause because
such credits are “one determinant of petitioner's prison
term ... and ... [the petitioner's] effective sentence
is altered once this determinant is changed.” Ibid. We
explained in Weaver that the removal of such provisions
can constitute an increase in punishment, because a
“prisoner's eligibility for reduced imprisonment is a
significant factor entering into both the defendant's
decision to plea bargain and the judge's calculation of
the sentence to be imposed.” Ibid.

3
4
5
6
7
8
9

Lynce, 519 U.S. at 445-446.

10

2.

Whether Proposition 89 Effects a "Procedural"
Change not Covered by the Ex Post Facto Clause.

11
Once again, Defendants assert that plaintiffs' claims are
12
procedural and thus, not subject to an Ex Post Facto claim.

In

13
sum, they argue that no “as applied” challenge need be considered,
14
as Proposition 89 worked a “procedural change,” and such changes
15
are categorically not subject to review under the Ex Post Facto
16
Clause. According to defendants, “procedural changes, even if they
17
‘disadvantage’ the accused, do not violate the Ex Post Fact
18
Clause,” citing Collins, Mallett v. North Carolina, 181 U.S. 589
19
(1901), and Dobbert v. Florida, 432 U.S. 282, 292 (1977).
20
Defendants

read

these

cases

too

broadly,31

as

none

of

them

21
categorically excludes any and all “procedural” changes from ex
22
post facto review.

To the contrary:

23
////
24
25
26

31

In any event, this court has already rejected defendants’
argument in the motion to dismiss this claim, and it is now the law
of the case. See Gilman v. Davis, 2010 WL 434215 at *3-*4.
32

1
2

by simply labeling a law “procedural,” a legislature
does not thereby immunize it from scrutiny under the Ex
Post Facto Clause. ... Subtle ex post facto violations
are no more permissible than overt ones.

3
4

Collins, 497 U.S. at 46.

5

Indeed, Collins clarifies language in earlier cases that

6

defendants interpret as holding that a simple “procedural” versus

7

“non-procedural” test would be sufficient to determine whether a

8

law violates the Ex Post Facto Clause.

9

Dobbert wrote:

10
11
12
13
14
15
16

For example, the Court in

In the case at hand, the change in the statute was
clearly procedural. The new statute simply altered the
methods employed in determining whether the death
penalty was to be imposed; there was no change in the
quantum of punishment attached to the crime.
The
following language from Hopt v. Utah, supra, applicable
with equal force to the case at hand, summarizes our
conclusion that the change was procedural and not a
violation of the Ex Post Facto Clause: [¶] “The crime
for which the present defendant was indicted, the
punishment prescribed therefor, and the quantity or the
degree of proof necessary to establish his guilt, all
remained unaffected by the subsequent statute.”
110
U.S., at 589-590.

17
Collins clarifies that it is not simply the

18

432 U.S. at 293-294.

19

label “procedural” that governed its holding in Dobbert.

20

the Court has come to use the term “procedural” in this context

21

almost

22

“procedural” for purposes of the Ex Post Facto Clause.

23

“procedural” laws are those which do not punish behavior that was

24

previously

25

prescribed, do not change the quantity or the degree of proof

26

necessary to establish guilt, and do not deprive one charged with

as

a

term

lawful,

of

do

art,

not

meaning

change

33

laws

the

that

quantum

are

of

Indeed,

genuinely
Such

punishment

1

crime of any defense available according to law at the time when

2

the act was committed.

Id. at 52; Dobbert, 432 U.S. at 295.

3

Similarly, Gomez found that Proposition 89 did not violate the

4

Ex Post Facto clause under the facts presented in that case, not

5

because the enactment was “procedural,” but because the prisoner

6

was ‘unable to demonstrate that an increase in his punishment

7

actually occurred.”

Gomez, 92 F.3d at 967.

8

It is clear that retrospective procedural changes can violate

9

the Ex Post Facto Clause if they create a significant risk of

10

increasing the prisoner’s punishment. The Ninth Circuit explained

11

that "[a] retroactive procedural change violates the Ex Post Facto

12

Clause” when it creates a significant risk of prolonging an

13

inmate's incarceration. Gilman, 638 F.3d at 1106 (emphasis added),

14

citing Garner, 529 U.S. at 251.

15

simply grant summary judgment to defendants on the grounds that

16

Proposition 89 effects a “procedural” change, without examining the

17

real-world effect the change has brought about.

18

3.

Accordingly, the court cannot

Whether Johnson v. Gomez Precludes an Ex Post Facto
Challenge as a Matter of Law.

19
Gomez is a difficult case for plaintiffs, as it was also a
20
challenge to Proposition 89, and was rejected by the Ninth Circuit.
21
Moreover,

plaintiff

in

Gomez

made

the

same

general

argument

22
plaintiffs make here, and the Ninth Circuit rejected it:
23
24
25
26

Johnson
argues
that,
unlike
the
administrative
convenience purpose of the law in Morales, the purpose
and effect of the law here is to lengthen prison terms
by making it more difficult for convicted murderers with
indeterminate sentences to be released on parole.
However, the law itself is neutral inasmuch as it gives
34

1
2
3
4
5
6
7
8

the governor power to either affirm or reverse a BPT's
granting or denial of parole. Moreover, the governor
must use the same criteria as the BPT.
The law,
therefore, simply removes final parole decisionmaking
authority from the BPT and places it in the hands of the
governor. We cannot materially distinguish this change
in the law from that at issue in Mallett v. North
Carolina, 181 U.S. at 590. In Mallett, the Court found
no ex post facto violation where the new law allowed for
higher court review of intermediate court decisions,
even though the petitioner would have been entitled to
a final intermediate court decision at the time of his
crime. Id. at 597.
We therefore conclude that the
application of Proposition 89 to authorize the
governor's review of Johnson's grant of parole did not
violate the Ex Post Facto Clause.

9
10
11

Gomez, 92 F.3d at 967.
Gomez does not end there, however.

It goes on to throw a

12

life-line to plaintiffs’ claim here, thus precluding this court

13

from dismissing their claim on summary judgment.

14

Gomez went on to examine the Ninth Circuit’s instruction that the

15

district court must “look to the actual effect of the new law upon

16

the petitioner.”

17

to the law is precluded by Gomez, but Gomez does not preclude a

18

challenge based upon “the actual effect” of Proposition 89 on this

19

class of plaintiffs.

20

Id. at 968.

Specifically,

In other words, a facial challenge

The possibility of an as-applied challenge was confirmed by

21

the Supreme Court in Garner.

Under Garner, “when a law does not

22

facially increase punishment, ‘the [petitioner] must demonstrate,

23

by evidence drawn from the rule's practical implementation by the

24

[entity] charged with exercising discretion that its retroactive

25

application will result in a longer period of incarceration than

26

under the earlier rule.’”

Heller v. Powers-Mendoza, 2007 WL
35

1

963330, 1 (E.D. Cal. 2007) (Karlton, J.), quoting Garner, 529 U.S.

2

at 245.

3

Accordingly,

defendants’

argument

that

plaintiffs’

4

Proposition 89 challenge can be dismissed “as a matter of law” is

5

incorrect.

6

prove at trial that Proposition 89 has created a significant risk

7

that their punishment would be increased.

Instead, plaintiffs must be given the opportunity to

8

B.

9

Plaintiffs move for summary judgment on their Proposition 89

10

claim, asserting that the undisputed facts show that the enactment

11

creates a significant risk that they will serve an increased term

12

of incarceration.

13

Plaintiffs’ Motion for Summary Judgment, Proposition 89

1.

Intent of the Legislature.

14

Plaintiffs cite the Ballot Pamphlet32 to assert that the

15

intention of Proposition 9 was to give the Governor the power to

16

protect the public from the early release of dangerous killers.

17

PSUF ¶ C; see also, Gomez, 92 F.3d at 966 (“The voters' intent, as

18

indicated in contemporaneous accounts, was at least in part to give

19

the

20

receiving parole”).

21

legislature intended to increase the punishment of “dangerous

22

killers” already convicted and incarcerated, and that therefore the

governor

authority

to

prevent

convicted

murderers

from

Plaintiffs argue that this shows that the

23
24
25
26

32

“In California, ‘[b]allot summaries ... in the “Voter
Information Guide” are recognized sources for determining the
voters' intent.’” Perry v. Brown, 671 F.3d 1052, 1090 n.25 (9th
Cir.) (quoting People v. Garrett, 92 Cal. App. 4th 1417, 1426
(2001)), cert. granted, 133 S. Ct. 786 (2012).
36

1

law violates the ex post facto clause “without further inquiry into

2

the law’s effect,” citing Smith v. Doe, 538 U.S. 84, 92 (2003).

3

Once again, common sense would indicate that if a law is

4

passed in order to increase the punishment of prisoners who have

5

already been convicted of their crimes, then this would create an

6

ex post facto issue. However, that does not appear to be the law.

7

In fact, whether or not a court may look to the intent of the

8

legislature (or the People, in the case of a Ballot Initiative),

9

appears to depend on the type of alleged ex post facto law that is

10

at issue.

11

If the issue is whether the challenged enactment is penal or

12

civil in nature, it is well established that the courts look to the

13

intent of the legislature: “If the intention of the legislature was

14

to impose punishment, that ends the inquiry.”

15

at;33 ACLU of Nevada v. Masto, 670 F.3d 1046, 1053 (9th Cir. 2012)

16

(“If the legislature did intend to impose a criminal punishment,

17

that is the end of the inquiry — the law may not be applied

18

retroactively”).

Smith, 538 U.S.

19

However, if the issue is whether the enactment increases what

20

is indisputably punishment, namely incarceration, then the court

21

focuses on “an objective appraisal of the impact of the change on

22

the length of the offender’s presumptive sentence,” rather than the

23
24
25
26

33

However, if the legislature’s intent “was to enact a
regulatory scheme that is civil and nonpunitive, we must further
examine whether the statutory scheme is “‘so punitive either in
purpose or effect as to negate [the State's] intention’ to deem it
‘civil.’” Id.
37

1

intent of the legislature.

Lynce, 519 U.S. at 442-43.

In

2

discussing whether a retroactive cancellation of early release

3

credits violated the Ex Post Facto Clause, Lynce specifically

4

rejected the “undue emphasis on the legislature's subjective intent

5

in granting the credits rather than on the consequences of their

6

revocation.”

Id., at 442.

7

The Lynce Court pointed out that all of its prior decisions

8

in this context – the alleged retroactive increase in punishment

9

– focused only on the effect of the legislation, not the intent of

10

the legislature.

Id., at 442-45.

The court concluded by noting

11

that “the Court has never addressed” whether intent alone – without

12

a forbidden effect – would be enough to find an Ex Post Facto

13

Clause violation.

Id., at 445.

14

Plaintiffs are therefore incorrect in asserting that it is

15

settled law that this court is required to find a violation based

16

upon intent alone.

17

examination of cases showing that it has never found an ex post

18

facto violation based upon intent alone, this court does not

19

believe it is free to grant summary judgment to plaintiffs solely

20

on the basis of the intent of Proposition 89.

21

2.

Given the teaching of Lynce, and its lengthy

The creation of an additional hurdle to parole.

22

Plaintiffs argue that an effect of Proposition 89 is to

23

interpose an additional hurdle that prisoners must clear before

24

they can obtain parole, and that this additional hurdle did not

25

exist at the time their crimes were committed.

26

that when the crimes were committed, the road to parole involved
38

It is undisputed

1

convincing only the Board that the prisoner was suitable for

2

parole.34

3

was placed in the road, namely, the prisoner now has to convince

4

the Board, and then, separately, the Governor, that he is suitable

5

for parole.35

6

The

After the passage of Proposition 89, another road-block

undisputed

facts

also

support

the

assertion

that

7

Proposition 89 has imposed this additional hurdle.

First, while

8

the governor reviews every grant of parole, he almost never reviews

9

denials of parole.36

Second, from 1991 to 2011, “the Governor

10

reversed more than 70 percent of the grants of parole made to

11

prisoners with murder convictions.”

12

not reversed, 90% of those prisoners would have been immediately

13

released, but because of the Governor’s action, were instead held

PSUF ¶ E.37

Had the Governor

14
34

15
16
17
18
19
20
21
22
23
24
25
26

And, as discussed above, they were able to make their case
every year, rather than once every fifteen years.
35

In fact, the hurdle is even greater than might otherwise
appear, since it appears the prisoner does not even have the right
to make his case to the Governor.
36

It is undisputed that from 1991 to 2011, the Governor
reviewed only three (3) denials of parole, and he affirmed all
three. PSUF ¶ D. During the same period, the Governor reversed
70% of Board decisions finding the prisoner “suitable” for parole.
PSUF ¶ E.
37

Plaintiffs also assert: “The evidence establishes a
significant risk that prisoners with murder convictions will do
more custodial time after Proposition 89 than they would do if the
old law still applied.” Plaintiff’s SJ Motion at 9 (ECF
No. 428-1). However, the undisputed evidence does not show this.
The only evidence in plaintiffs’ statement of undisputed facts
relates to parole decisions under the new law. Plaintiffs have
asserted in their Reply brief that the Board’s suitability finding
was 6.1% under the old law and the new law. However this assertion
is not included in the Statement of Undisputed Facts, and
defendants have had no opportunity to dispute or concede it.
39

Id.38

1

in custody.

2

additional hurdle creates a “significant risk of prolonging”

3

plaintiffs’ incarceration.

4

Common

sense

The question, then, is whether adding this

would

Garner, 529 U.S. at 251.
indicate

that

a

prisoner

has

a

5

significantly increased chance of longer incarceration if he must

6

convince two decision-makers that he is entitled to parole, rather

7

than just one.

8

that most of the time – 70% of the time – even after the prisoner

9

convinces the first decision-maker that he is entitled to parole,

In addition, actual experience with the law shows

10

the Governor reverses that decision.

The evidence presented thus

11

shows that plaintiffs have a heavier burden to achieve parole than

12

they would have had at the time their crimes were committed.39

13

In this context however, the court cannot simply rely on

14

experience and common sense, or even the undisputed facts of this

15

case.

16

Court and the Ninth Circuit.

17

although the law clearly disadvantages plaintiffs after the fact

18

– by now requiring them to clear two hurdles in seeking parole

19

rather than one – there is no Ex Post Facto violation unless

20

plaintiffs

21

“significant risk” that their incarceration will be increased. See

Rather, it must apply the law as determined by the Supreme

can

additionally

Under this binding authority,

show

that

the

law

creates

a

22
38

23
24
25
26

Plaintiffs also assert that 70 percent of challenges to the
Governor’s reversals “resulted in the prisoner obtaining relief.”
The court is not clear as to what the assertions means, and in any
event, the assertion does not explain how that affects this case.
39

It may well be that the frequency of reversal will vary
from Governor to Governor, that however, does not affect the risk
of prolonged incarceration.
40

1

Garner, 529 U.S. at 251 (“The question is whether the amended

2

Georgia Rule creates a significant risk of prolonging respondent's

3

incarceration”).

4

that increasing such a burden implicated the Ex Post Facto Clause

5

– is no longer the law.

That is because the earlier rule – recognizing

6

In Thompson v. State of Utah, 170 U.S. 343 (1898), the Supreme

7

Court held that increasing the petitioner’s burden to obtain an

8

acquittal than existed when the crime was committed, violated the

9

Ex Post Facto Clause.

In that case, the crime of which petitioner

10

was accused was committed at a time when he had a right to a trial

11

by twelve (12) jurors, who had to reach a unanimous verdict in

12

order to convict him. By the time of his second trial however (his

13

first conviction was overturned), a change in the governing law40

14

permitted a trial by eight (8) jurors, who again had to reach a

15

unanimous verdict in order to convict.

16
17

The Court held:

In our opinion, the provision in the constitution of
Utah providing for the trial in courts of general
jurisdiction of criminal cases ... by a jury composed of

18
40

19
20
21
22
23
24
25
26

When petitioner’s crime was committed, Utah was a
territory, and thus was considered bound by the Sixth Amendment.
At the time, it was thought that the Sixth Amendment required a
twelve-person jury. By the time of petitioner’s second trial, Utah
had become a state. At the time, it was thought that States were
not bound by the Sixth Amendment, and therefore no longer required
to use twelve-person juries. Later cases established that the
Sixth Amendment does apply to the States, but that it does not
require twelve-person juries. Williams v. Florida, 399 U.S. 78,
103 (1970) (after petitioner was convicted by 6-person jury and
sentenced to life in prison, Court holds that “the 12-man panel is
not a necessary ingredient of ‘trial by jury,’ and that
respondent's refusal to impanel more than the six members provided
for by Florida law did not violate petitioner's Sixth Amendment
rights as applied to the States through the Fourteenth”).
41

1

eight persons, is ex post facto in its application to
felonies committed before the territory became a state,
because, in respect of such crimes, the constitution of
the United States gave the accused, at the time of the
commission of his offense, the right to be tried by a
jury of twelve persons, and made it impossible to
deprive him of his liberty except by the unanimous
verdict of such a jury.

2
3
4
5
6

Thompson, 170 U.S. at 355 (emphasis added).

7

Post

8

committed, the law imposed a heavier burden on petitioner to obtain

9

an acquittal: now the State had to convince only eight jurors to

10

Facto

violation

occurred

because,

In other words, an Ex
after

the

crime

was

convict, rather than twelve.41

11

The Supreme Court overruled Thompson in Collins:

12

The right to jury trial provided by the Sixth Amendment
is obviously a “substantial” one, but it is not a right
that has anything to do with the definition of crimes,
defenses, or punishments, which is the concern of the Ex
Post Facto Clause. To the extent that Thompson v. Utah
rested on the Ex Post Facto Clause and not the Sixth
Amendment, we overrule it.

13
14
15
16

497 U.S. at 52.

17

gave an appellate court the authority to reform an improper

18

verdict, where previously a defendant was entitled to a new trial,”

19

did not violate the Ex Post Facto Clause.

20

Clause does not prevent the State from retroactively making it more

21

difficult to be acquitted of a crime, so long as the law did not:

22

punish as a crime an act previously committed, which was
innocent when done; ... make more burdensome the
punishment for a crime, after its commission; nor
deprive one charged with crime of any defense available
according to law at the time when the act was committed.

23
24

In Collins, the Court held that “a new law which

That is because the

25
41

26

Viewed another way, petitioner now had to convince 1 out of
8 jurors to acquit, rather than only 1 out of 12.
42

1
Id., overruling Kring v. Missouri, 107 U.S. 221 (1883), and
2
Thompson v. Utah, 170 U.S. 343 (1898).42
3
The Collins ruling was foreshadowed by Mallett, in which the
4
petitioner was convicted by the criminal court of a “conspiracy to
5
cheat and defraud.”

See State v. Mallett, 125 N.C. 718, 34 S.E.

651, 651-52 (1899).

Petitioner appealed to the superior court,

6
7
which overturned the conviction and ordered a new trial. Id. 34
8
S.E. at 652; Mallet, 181 U.S. at 590 (Statement of Mr. Justice
9
Shiras).43
10
At the time the crime was committed, the state had no right
11
of appeal.

Therefore, Petitioner would have been granted the

12
possibility of an acquittal at the new trial.

However, after the

13
crime was committed, the state enacted legislation granting the
14
state a right of appeal from decisions of the superior court.
15
Mallett, 181 U.S. at 590 (Statement of Mr. Justice Shiras).

The

16
state exercised that right in Petitioner’s case, and obtained a
17
reversal of the Superior Court, “with directions that the sentence
18
imposed by that court should be carried into execution.”

Id.

19
Petitioner appealed to the U.S. Supreme Court, asserting that
20
21
22
23
24
25
26

42

Thompson was overruled to the degree it held that
retroactive procedural statutes violate the Ex Post Facto Clause
unless they “‘leave untouched all the substantial protections with
which existing law surrounds the person accused of crime,’”
Lynaugh, supra, at 959 (quoting 170 U.S., at 352).
43

The superior court determined that the criminal court had
allowed facts to be used against Petitioner even though the law
prohibited their use, and because the trial judge failed to submit
to the jury the question of whether the prosecution was barred by
the statute of limitations. Mallett, 34 S.E. at 652.
43

1

the new law was ex post facto when it was applied to him.

2

specifics of Petitioner’s argument is not set forth in the Court’s

3

decision, but it would appear that the new law interposed an

4

additional hurdle for Petitioner to clear before he could get his

5

conviction overturned.

6

would have had to convince only the superior court that his

7

conviction should be overturned, which he did.

8

was convicted, he also had to convince the state’s Supreme Court

9

that his conviction should be overturned, which he failed to do.

10

The U.S. Supreme Court rejected the ex post facto challenge,

11

finding that the law:

12
13
14
15
16
17

The

At the time the crime was committed, he

However, after he

did not make that a criminal act which was innocent when
done; did not aggravate an offense or change the
punishment and make it greater than when it was
committed; did not alter the rules of evidence, and
require less or different evidence than the law required
at the time of the commission of the offense; and did
not deprive the accused of any substantial right or
immunity possessed by them at the time of the commission
of the offense charged.
Mallett, 181 U.S. at 597.

18

The rule this court must apply, then, is that the mere

19

placement of additional hurdles in the path of a prisoner seeking

20

parole is not, by itself, a violation of the Ex Post Facto Clause.

21

Accordingly, plaintiffs cannot be granted summary judgment on this

22

basis.

23

this court must ignore these additional, retrospectively imposed

24

hurdles, if plaintiffs can show that they create a significant risk

25

that their incarceration will be increased. Thus, plaintiffs have

26

the right to present evidence regarding the issue at trial, and

However, nothing in any of the above cases indicates that

44

1

defendants have the right to rebut the case.

2

3.

The Governor's actions.

3

Plaintiffs seek summary judgment because, they assert, the

4

undisputed facts show that the Governor’s exercise of his powers

5

under Proposition 89 has resulted in increased incarceration times

6

for plaintiffs.

7

plaintiffs base their assertion on a theory that has already been

8

rejected by the Ninth Circuit.

See Plaintiffs’ SJ Motion at 5.

However,

9

As plaintiffs assert, it is undisputed that the Governor has

10

reversed over 70% of the parole grants issued by the Board, almost

11

all of which were for prisoners whose release date had already

12

passed.

13

prisoners remained incarcerated, although they would have been

14

released if the Governor had not intervened. Therefore, plaintiffs

15

argue, the undisputed facts show that these prisoners have actually

16

had their incarcerations prolonged by the Governor’s exercise of

17

his Proposition 89 authority.

After the Governor reversed the Board’s decision, these

18

Unfortunately for plaintiffs, this perfectly logical argument

19

fails to come to terms with the reasoning of the Ninth Circuit in

20

Gomez, a habeas case in which a prisoner also challenged the

21

Governor’s exercise of his authority under Proposition 89.

22

There, as here, the Board had made a decision to grant parole

23

under Proposition 89.

Gomez, 92 F.3d at 965.

24

Governor reversed the decision.

25

not possess the “final power to decide,” in that its decision was

26

subject to gubernatorial review, the Ninth Circuit reasoned that

Id.

45

There, as here, the

However, since the Board did

1

there was no way to tell, “with certainty,” if the Board would have

2

granted parole if Proposition 89 did not exist:

3

In this case, Johnson is similarly unable to demonstrate
that an increase in his punishment actually occurred
....
Johnson's case is like Dobbert, where the
petitioner could only speculate whether the jury would
have imposed a life sentence had it possessed the final
power to decide.
Here, because the BPT's parole
decision is not final until after the expiration of the
thirty-day gubernatorial review period, it cannot be
said with certainty that the BPT would have granted
Johnson parole had it possessed the final review
authority.

4
5
6
7
8
9

Id., at 967 (citations omitted).44

In reaching this conclusion,

10

the Ninth Circuit adopted the reasoning set forth in a footnote in

11

Dobbert:

12

For example, the jury's recommendation may have been
affected by the fact that the members of the jury were
not the final arbiters of life or death. They may have
chosen leniency when they knew that that decision rested
ultimately on the shoulders of the trial judge, but
might not have followed the same course if their vote
were final.

13
14
15
16

432 U.S. at 294 n.7.

17

Accordingly, this court cannot grant summary judgment solely

18

on the undisputed facts that the plaintiffs were granted parole by

19

the Board and had those decisions reversed by the Governor.

20

Plaintiffs at trial will need to establish other facts tending to

21

show, sufficient to meet their burden of proof, that the Governor’s

22

////

23

////

24
44

25
26

The Supreme Court clarified that the standard here is
whether the enactment creates a “significant risk” of increased
incarceration,
rather
than
a
“certainty”
of
increased
incarceration. See Garner, 529 U.S. at 251.
46

1

actions created a significant risk of increased incarceration.45

2

4.

The Governor's Exercise of discretion.

3

Finally, plaintiffs seem to argue that the Governor’s exercise

4

of discretion is so much stricter than that exercised by the Board

5

at the time of plaintiffs’ crimes, that this also violates the Ex

6

Post

7

particularly difficult because the actual length of incarceration

8

depends upon the discretion of the decision-maker, whether it is

9

the Board or the Governor.

10
11
12

Facto

clause.

The

resolution

of

this

question

seems

We are cautioned that:

The presence of discretion does not displace the
protections of the Ex Post Facto Clause, however. The
danger that legislatures might disfavor certain persons
after the fact is present even in the parole context,
and the Court has stated that the Ex Post Facto Clause
guards against such abuse.

13
14

Garner, at 253 (citation omitted), citing Miller v. Florida, 482

15

U.S. 423, 435 (1987).

16

Despite this quoted language however, Garner does not stand

17

for the proposition that a change in the exercise of discretion is

18

a matter for the Ex Post Facto Clause.

19

not “that discretion has been changed in its exercise,” but that

20

“it will not be exercised at all.”

21

case upon which Garner relies for its discretion discussion, Miller

22

v. Florida, similarly was not concerned with how discretion was

What Garner addressed was

Id., at 254.

Moreover, the

23
24
25
26

45

For example, plaintiffs may be able to show that the
Board’s rate of parole grants did not change once Proposition 89
was enacted. This would undermine any speculation that the Board
became more lenient only because it knew that the final decisionmaker, the Governor, could reverse their decision.
47

1

exercised, but rather the fact that discretion could no longer be

2

exercised at all until a newly interposed, “high hurdle” had been

3

cleared.

4

Miller, 482 U.S. at 435.46

In this case, plaintiffs do not present any evidence that the

5

Governor failed to exercise his discretion.47

6

presented evidence that the Governor exercised his discretion in

7

a manner that resulted in a 70% reversal rate of parole grants by

8

the Board. This cannot in itself be enough for this court to infer

9

that the Governor did not exercise his discretion.

Rather, they have

10

Moreover, it is not enough for the court to find that there

11

was a significant risk of increased incarceration, as measured from

12

the time the crime was committed.

13

committed, the punishment included a discretionary grant of parole.

At the time the crimes were

14
15

46

16

Nor do the revised guidelines simply provide flexible
“guideposts” for use in the exercise of discretion:
instead, they create a high hurdle that must be cleared
before discretion can be exercised.

17
18
19

As the Court stated:

Miller, 482 U.S. at 435.
47

20
21
22
23
24
25
26

Plaintiffs have produced no undisputed evidence that the
Governor refuses to exercise his discretion at all, nor that he
reversed parole grants regardless of the circumstances, and without
considering the factors he is required to consider. The court
assumes, without deciding, that such conduct would illegally
increase the penalty prescribed by law by changing the penalty from
“life with the possibility of parole” to “life without the
possibility of parole.” Nor is there evidence that the Governor
is using proscribed criteria to make his parole decisions, such as
“no parole unless at least 20 years have been served,” or “no
parole unless Haley’s Comet is in the sky.” The court assumes,
without deciding, that such conduct would illegally increase the
penalty to “life without the possibility of parole for the first
20 years,” or “life with only a very remote possibility of parole.”
48

1

That is the punishment assigned by law, and that is the punishment

2

that cannot be increased for these plaintiffs.48

3

included

4

liberally.

5

profoundly more restrictive manner when plaintiffs came up for

6

parole, than it was at the time of the offense, this court knows

7

of no authority that this is prohibited by the Ex Post Facto

8

Clause.

no

promise

that

the

discretion

would

The punishment
be

exercised

Even assuming that the discretion was exercised in a

Indeed, it is difficult to imagine this being the rule.

9

In essence, plaintiffs are asserting that the State may not

10

shift the parole decision-making authority to a person who will

11

exercise his discretion in a stricter manner than was being

12

exercised at the time of the offense.

13

basis for this view.49

The court knows of no legal

To the contrary, changes in the exercise of

14
48

15
16
17
18
19
20
21
22
23
24
25
26

The Ex Post Facto Clause

forbids the imposition of punishment more severe than
the punishment assigned by law when the act to be
punished occurred. Critical to relief under the Ex Post
Facto Clause is not an individual's right to less
punishment, but the lack of fair notice and governmental
restraint when the legislature increases punishment
beyond what was prescribed when the crime was
consummated.
Weaver, 450 U.S. at 30-31 (emphases added).
49

Plaintiffs implicitly seem to agree with this analysis.
Plaintiffs’ only request for relief set forth in the Complaint is
that the Governor review parole decisions “based on the same
factors the Board is required to consider, as required by
[Proposition 89].” Complaint ¶ 5. In effect, plaintiffs seek an
“obey the law” injunction. There is no request that the law be
declared in violation of the ex post facto clause, or that the
Governor be required to decrease his reversal rate, or that he be
required to review more parole denials. The only request sought
is that the Governor be required to exercise his discretion as set
forth in Proposition 89. Unfortunately for plaintiffs’ summary
49

1

discretion

2

inherent in the very concept of discretionary parole:

3
4
5
6
7
8
9
10

–

sometime

stricter,

sometimes

less

strict

–

are

to the extent there inheres in ex post facto doctrine
some idea of actual or constructive notice to the
criminal before commission of the offense of the penalty
for the transgression, we can say with some assurance
that where parole is concerned discretion, by its very
definition, is subject to changes in the manner in which
it is informed and then exercised.
The idea of
discretion is that it has the capacity, and the
obligation, to change and adapt based on experience.
New insights into the accuracy of predictions about the
offense and the risk of recidivism consequent upon the
offender's release, along with a complex of other
factors, will inform parole decisions.
Garner, 529 U.S. at 253-254.50

11

Accordingly, even if it is true that the Governor is stricter

12

in granting parole, this is not a grounds for summary judgment for

13

plaintiffs, if the Governor is properly exercising his discretion

14

under the law.

15

trial, that the Governor is not actually exercising his discretion,

16

or that he is abusing it, solely for the purpose of denying parole

17

to prisoners. Such a showing would tend to support the charge that

However, plaintiffs are free to attempt to show at

18
19
20
21
22
23
24
25
26

judgment motion, nothing they have submitted shows – beyond any
genuine dispute – that the Governor is not already doing so.
Rather, their evidence permits the court to draw the reasonable
inference that the Governor is simply reaching different
conclusions than the Board.
50

At oral argument, the Court pondered whether the real-world
impact of politics on the Governors’ decisions could play a role
in his parole decisions, since the Board is more insulated from
such considerations, whereas the Governor may feel under pressure
to opt for longer punishment to avoid the wrath of the voters.
Ultimately, however, this pressure is what democracy is all about.
Equally important, it only addresses how the Governor chooses to
exercise his discretion, a matter that, as Garner explains, is
contemplated by the very nature of “discretion.”
50

1

the enactment, as applied, has created a significant risk that

2

plaintiffs’ punishments are being increased retroactively.

3

C.

Plaintiffs’
Injunction.

Alternative

Motion

for

Preliminary

4
5

Plaintiffs

move

for

an

order

preliminarily

enjoining

6

defendants from enforcing the provisions of Proposition 89, in the

7

event they are not granted summary judgment on the claim. Although

8

plaintiffs have adduced sufficient evidence to survive summary

9

judgment, the court cannot find at this point, and to a preliminary

10

injunction standard, that plaintiffs are “likely” to succeed on the

11

merits of their Proposition 89 claim.

12

deny their alternate motion for a preliminary injunction.

13

IV.

14

Accordingly, the court will

DEFENDANTS’ MOTION FOR CLASS DECERTIFICATION
Defendants

assert

that

the

remaining

classes

should

be

15

decertified pursuant to Wal-Mart, 131 S. Ct. 2541.

Specifically,

16

they assert that under Wal-Mart, plaintiffs do not satisfy the

17

"commonality" requirement.

18

This court has previously found, and the Ninth Circuit has

19

affirmed, that plaintiffs satisfy the numerosity, commonality,

20

typicality and adequacy requirements of Rule 23(a).

21

Davis, 2009 WL 577767 (E.D. Cal.) (Karlton, J.), aff'd mem., 382

22

Fed. Appx. 544 (9th Cir. 2010).

23

Rule 23(a) numerosity, typicality and adequacy findings, nor the

24

Rule 23(b)(2) findings, and they are re-affirmed here.

25

issue therefore, is Rule 23(a) "commonality."

26

Gilman v.

Defendants do not challenge the

The only

To establish commonality, plaintiffs must establish that “that
51

1

there are one or more questions of law or fact common to the

2

class.”

3

It is sufficient that there be one common question “apt to drive

4

the resolution of the litigation.”

5

(“We quite agree that for purposes of Rule 23(a)(2) even a single

6

[common] question will do”) (internal quotation marks omitted):

7

Wal-Mart, 131 S. Ct. at 2556

What matters to class certification ... is not the
raising of common “questions” – even in droves – but,
rather the capacity of a classwide proceeding to
generate common answers apt to drive the resolution of
the litigation.
Dissimilarities within the proposed
class are what have the potential to impede the
generation of common answers.

8
9
10
11

Ellis, 657 F.3d at 980 citing Fed. R. Civ. P. 23(a)(2).

Wal-Mart, 131 S. Ct. at 2551.51

12

Here, plaintiffs have shown that there is a common question

13

that

will

affect

every

member

14

challenged Propositions, as applied, have retrospectively created

15

a significant risk that their punishment will be increased, by

16

retrospectively

17

Moreover, they have adduced evidence from which the court could

18

infer that the application of these Propositions has created this

19

risk.52

lengthening

of

their

both

terms

classes:

of

whether

the

incarceration.

20

Among the undisputed evidence plaintiffs presented to this

21

effect in regard to Proposition 89 is that the Governor reviews

22

every Board decision finding that a prisoner is "suitable" for

23
51

24
25
26

Quoting Nagareda, Class Certification in the
Aggregate Proof, 84 N.Y.U.L. Rev. 97, 131–132 (2009).
52

Age

of

At the extremes, the court could infer that their terms
were retrospectively increased from life with the possibility of
parole, to life without the possibility of parole.
52

1

parole, but reviews almost no Board decisions finding that a

2

prisoner is "unsuitable" for parole.

3

plaintiffs'

4

reversed over 70% of the Board's decisions that prisoners were

5

"suitable"

6

determinations he reviewed, he affirmed 100% percent of them. Id.,

7

¶¶ D & E.

undisputed

for

parole,

evidence

but

See PSUF ¶ D.

shows

that

of

that

the

the

In addition,
Governor

few

has

"unsuitable"

8

As for Proposition 9, plaintiffs have shown that the Board’s

9

previous ability to carefully “tailor” the frequency of parole

10

hearings as been removed as to all plaintiffs, as discussed above.

11

They have also shown that the 90% or greater summary dismissal rate

12

of advance hearing petitions affects the class members as a whole,

13

as discussed above.

14

A declaration that the Governor has not properly applied

15

Proposition 89, and an injunction requiring him to do so, would

16

affect every member of the class, regardless of whether he has even

17

reached his parole eligibility date.

18

that the application of Proposition 89 has created a significant

19

risk that their terms of incarceration would be increased -- and

20

especially if they can show that their sentences were increased to

21

life

22

plaintiffs seek would eliminate the significant risk of increased

23

punishment.

24

remaining classes.

25

VII. CONCLUSION

26

without

the

possibility

Accordingly,

of

the

If plaintiffs can establish

parole

court

For the foregoing reasons:
53

--

will

then

not

the

relief

decertify

the

1

1.

2

alternative,

3

Proposition 89) (ECF No. 428), is DENIED;

4
5
6
7

2.

a

preliminary

injunction

on

Claim

9

(regarding

Defendants' motion for summary judgment on Claims

8 (regarding Proposition 9) and 9 (ECF No. 425), is DENIED;
3.

Defendants’

motion

to

decertify

the remaining

classes (ECF No. 426), is DENIED; and

8
9

Plaintiffs’ motion for summary judgment or, in the

4.

All currently scheduled dates in this matter are

CONFIRMED.

10

IT IS SO ORDERED.

11

DATED:

May 6, 2013.

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
54