Johnson v. Shaffer et al

Filing 186

ORDER signed by District Judge Kimberly J. Mueller on 10/06/17 ORDERING the Clerk to change the short title of this action to reflect the dismissal of all defendants except Jennifer Shaffer; and GRANTING IN PART the 175 Motion to Extend Jurisdiction; the court's jurisdiction shall terminate upon compliance with this order or one year from the date of this order, whichever is sooner. (Benson, A.)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 12 SAM JOHNSON, on behalf of himself and all others similarly situated, Plaintiffs, 13 14 15 No. 2:12-cv-1059 KJM AC P ORDER v. JENNIFER SHAFFER, Defendant.1 16 17 18 This class action lawsuit challenged the constitutionality of the protocol adopted 19 by California’s Board of Parole Hearings’ (Board) Forensic Assessment Division (FAD) for use 20 in the preparation of psychological evaluations, referred to as Comprehensive Risk Assessments 21 (CRAs), to be considered in determining the suitability of class members for parole. It was 22 settled by agreement of the parties. ECF No. 83 (hereafter “Agreement”). The court held a 23 fairness hearing on December 18, 2015, ECF No. 161, and gave final approval to the Agreement 24 in an order filed May 27, 2016. ECF No. 167. The case is now before the court on plaintiffs’ 25 motion to extend jurisdiction. ECF No. 175. 26 27 28 1 Jennifer Shaffer is the sole defendant remaining in this action. See ECF No. 170. The Clerk of the Court will be directed to change the short title of this action to reflect this change. 1 1 I. BACKGROUND 2 This action was filed on April 20, 2012. ECF No. 1. On March 31, 2014, the 3 court certified a class consisting of California state prisoners who are serving life sentences and 4 are eligible for parole consideration after having served their minimum terms. See ECF No. 40 at 5 14; ECF No. 44 at 2. 6 Following motion practice, the court dismissed several claims and two remained. 7 ECF Nos. 62, 68. The court characterized the two surviving claims as “(1) a Due Process 8 violation predicated upon the denial of a fair and unbiased parole procedure (the “systemic bias” 9 claim), as principally embodied in the First and Eleventh Claims; and (2) a Due Process violation 10 predicated upon the denial of fair and unbiased parole panels, as principally embodied in the 11 Tenth Claims.” ECF No. 62 at 26. As to five additional claims, the court “construed [them] not 12 as independent causes of action but as additional factual predicates for the overarching bias 13 claims.” ECF No. 62 at 26. 14 On September 10, 2015, the parties filed a joint motion for preliminary approval of 15 their settlement agreement. ECF No. 79. On October 1, 2015, the court held a telephonic status 16 conference on the motion for preliminary approval. ECF No. 82. Following the status 17 conference, the court granted the motion, directed the parties to file a final version of the 18 proposed settlement agreement removing paragraph 15 and incorporating deadlines for posting 19 notice in prison housing units, postmarking comments to the court, filing final briefing and setting 20 a date for the final fairness hearing. ECF No. 84. The Agreement was filed October 2, 2015. 21 ECF No. 83. 22 The court received numerous comments from prison inmates. See ECF Nos. 23 91-114, 116-132, 134-153, 155-157, 160. On December 18, 2015, the court held a final fairness 24 hearing. ECF No. 161. During the hearing, the court heard from the parties regarding issues 25 raised in the objections, including (1) whether risk assessment interviews can be recorded; (2) 26 whether the risk assessment tools have been validated or found reliable or proper for use in 27 predicting potential recidivism among life inmates; and (3) whether there is a procedure for 28 objecting to factual errors and/or conclusions in CRAs. See Reporter’s Transcript of Proceedings 2 1 Re: Fairness Hearing, ECF No. 163. The court directed the parties to file further briefing 2 concerning the validity of the risk assessment tools adopted by defendant. Id. at 8-9. The parties 3 filed a joint brief and exhibits on January 8, 2016. ECF Nos. 165, 166. 4 As noted above, the court gave final approval to the Agreement in an order filed 5 May 27, 2016. ECF No. 167. The Agreement provided for the court’s continued jurisdiction 6 over the case until January 1, 2017. ECF No. 83 ¶ D13. It further provided: 7 If within 30 days after January 1, 2017, Plaintiffs believe that Defendants have not submitted regulations to the OAL [Office of Administrative Law], completed the agreed upon presentations to the Board, and provided language to Board psychologists with instructions to include it in CRAs [Comprehensive Risk Assessments], Plaintiffs may seek an extension of the Court’s jurisdiction over this matter for a period not to exceed 12 months. To receive an extension of the Court’s jurisdiction, Plaintiffs must demonstrate by a preponderance of the evidence that Defendants have not materially complied with the terms of this agreement. Defendants shall have an opportunity to respond to Plaintiffs’ request and present their own evidence. If Plaintiffs do not seek an extension of the Court’s jurisdiction within the period noted above, or the Court denies Plaintiffs’ request for an extension, this agreement and the Court’s jurisdiction shall automatically terminate, and the claims in this case shall be dismissed with prejudice. 8 9 10 11 12 13 14 15 16 Id. ¶ D14. 17 On January 30, 2017, plaintiffs timely filed a motion to extend the court’s 18 jurisdiction. ECF No. 175. Defendant filed an opposition to the motion, ECF No. 176, and 19 plaintiffs filed a reply. ECF No. 177. The court heard oral argument on March 10, 2017 and 20 directed the parties to file supplemental briefs. ECF No. 178. The supplemental briefs were filed 21 on March 24, 2017. ECF Nos. 182, 183. Plaintiff filed a notice of supplemental authority on 22 September 22, 2017, ECF No. 184, to which defendant has responded, ECF No. 185. 23 II. 24 PLAINTIFFS’ MOTION A. 25 26 27 28 Plaintiffs’ Opening Brief Plaintiffs’ motion arises principally from paragraph C7 of the Agreement, which provides: 7. The Board will formalize a process for prisoners or their counsel to lodged timely written objections asserting factual errors in a CRA (to be defined in the regulations) before their parole 3 1 3 consideration hearing occurs. If the Board receives a timely written objection in advance of a parole hearing, the Board will provide a written response within a reasonable period of time. The Board will submit draft regulations to reflect this process to the OAL by July 1, 2016. 4 ECF No. 83 ¶ C7. Plaintiffs first contend the draft regulations were not timely submitted to OAL. 5 ECF No. 175 at 9. Second, plaintiffs contend the draft regulations are not adequate in that (1) the 6 draft regulations fail to provide the option of recording the CRA interviews; (2) the draft 7 regulations contain “an unreasonably narrow definition of ‘factual errors’ to which class members 8 may object in writing, inexplicably excluding broad swaths of common errors from the pre- 9 hearing appeals process,” id. at 9-10; (3) the draft regulations require class members to file 2 10 objections to CRA reports no later than thirty days before their parole hearing or lose the right to 11 object, but contain no deadlines by which the Board must provide those reports or by which the 12 Board must address objections, id. at 10; and (4) the draft regulations permit factual errors in a 13 CRA report to remain uncorrected in the file “unless the Board’s Chief Psychologist finds that 14 those errors ‘materially impacted’ the report’s conclusions about violence risk,” id. at 11. 15 Plaintiffs contend defendant failed to notify or consult counsel at any major step in development 16 of the draft regulations, and “have ignored the concerns repeatedly raised by Plaintiffs’ counsel 17 and class members” and have “undermine[d] the premise of the Agreement. . . .” Id. at 12. Finally, plaintiffs contend defendant has failed to comply with paragraphs C10 and 18 19 C11 of the Agreement, which provide: 20 10. All future CRAs will clarify that the Overall Risk Rating is relative to other life prisoners. 21 11. CRAs will inform the reader of the report that, generally speaking, the current recidivism rates for long term offenders are lower than those of other prisoners released from shorter sentences. 22 23 24 ECF No. 83 ¶¶ C10, C11. 25 ///// 26 ///// 27 28 ///// 4 1 B. 2 Defendant’s Opposition In opposition to the motion, defendant contends plaintiffs have not met their 3 threshold burden of showing material noncompliance with the Agreement by the Board. 4 Defendant contends plaintiffs are instead “improperly seek[ing] to amend the Agreement.” ECF 5 No. 176 at 2. 6 Defendant does not dispute that she did not submit the draft regulations to the 7 OAL by July 1, 2016, the deadline in the agreement. ECF No. 176 at 19. She contends, however, 8 that she delayed following the court’s May 27, 2016 approval of the Agreement in order to give 9 plaintiffs’ counsel the time required by the Agreement to comment on the draft regulations, to 10 give the Board time to respond to those comments, and to allow plaintiffs’ counsel to submit 11 additional comments to the Board’s commissioners. Id. at 19. Defendant contends the delay does 12 not constitute material noncompliance with the Agreement, particularly because she afforded 13 plaintiffs’ counsel all the notice and opportunity to comment on the draft regulations required by 14 the Agreement, and the Board’s commissioners considered the comments submitted by plaintiffs’ 15 counsel. Id. at 19-20. 16 With respect to the substance of the draft regulations, defendant contends 17 plaintiffs’ position concerning audio recordings is an impermissible attempt to alter the 18 Agreement and that the record is clear audio recordings were not part of the Agreement. Id. at 19 13-14. Defendant contends she has defined “factual error” as required by the Agreement, id. at 20 14, and that the Agreement does not require the Board to establish a deadline for completing 21 CRAs. Id. at 16. Defendant also contends the draft regulations “address Plaintiffs’ concerns by 22 specifically providing” for the Chief Counsel to determine whether there is time to review 23 objections received less than thirty days prior to a parole hearing, and by allowing inmates who 24 are not able to use the pre-hearing process because of a delayed CRA to raise their objection at 25 the hearing and, if such an objection shows the CRA may contain a factual error, to postpone the 26 parole hearing if necessary. Id. at 16-17. Defendant contends the Agreement does not require her 27 to remove CRAs with immaterial factual errors from inmates’ central files, id. at 17. 28 5 1 2 Finally, defendant contends all CRAs contain language required by paragraphs C10 and C11 of the Agreement. Specifically, defendant contends 3 All CRAs now include one of the following explanations about the inmate’s risk of violence. Which explanation is used is based on the inmate’s overall risk rating of either low, moderate, or high, and does not vary. 4 5 • Low Risk: “The inmate is a low risk of violence. He represents a non-elevated risk relative to long-term inmates and to other parolees. Low-risk examinees are expected to commit violence much less frequently than all other parolees.” 6 7 8 • Moderate Risk: “The inmate is a moderate risk of violence. He represents an elevated risk relative to long-term inmates and nonelevated risk relative to other parolees. Moderate-risk examinees are expected to commit violence more frequently than Low-risk long-term parolees but less frequently than other parolees.” 9 10 11 • High Risk: “The inmate is a high risk of violence. He represents a markedly elevated risk relative to long-term inmates and average risk relative to other parolees. High-risk examinees are expected to commit violence more frequently than Low- and Moderate-risk long-term parolees and similarly to other parolees.” 12 13 14 Id. at 21. Defendant argues there is no showing this language “is inadequate or that some exact 15 phrase must be used.” Id. 16 C. 17 Plaintiffs’ Reply In reply, plaintiffs apparently contest defendant’s representation that the delay in 18 presenting the draft regulations to the Board was due to defendant’s compliance with parts of the 19 Agreement requiring that plaintiffs’ counsel be given notice and opportunity to comment. See 20 ECF No. 177 at 2-3. Plaintiffs confirm each of their contentions with respect to the asserted 21 inadequacies in the draft regulations, as well as the inadequacy of the language currently used by 22 defendant to comply with paragraphs C10 and C11 of the Agreement. 23 24 D. Supplemental Briefs At hearing, a question arose about the role certain representations made at the 25 fairness hearing should play in interpretation of the Agreement. See, e.g., ECF No. 181 at 7-8. 26 The court directed the parties to file supplemental briefing on whether “there is authority that 27 provides this Court guidance on how to address” interpretation of the Agreement if “there’s a 28 conflict between the four corners of the agreement and the representations made at the fairness 6 1 hearing.” RT 181 at 17. The parties filed their supplemental briefs on March 24, 2017. ECF 2 Nos. 182, 183. 3 Plaintiffs contend the court “must uphold the parties’ intent as expressed in the 4 Agreement and surrounding conduct.” ECF No. 182 at 1. Plaintiffs also contend that analysis of 5 the Agreement itself “yields the same conclusion” as an analysis that includes interpretation of 6 “the phrase ‘factual errors’ in its ordinary sense, by reference to the underlying litigation, 7 settlement negotiations, and representations made to the Court…” Id. 8 Defendant contends the court’s review is limited to the “four corners” of the 9 Agreement. ECF No. 183 at 2. She also contends that, while the court is not authorized to look 10 beyond the four corners of the Agreement, all statements made by counsel at the fairness hearing 11 “were wholly consistent with the Agreement.” Id. 12 On September 22, 2017, plaintiffs filed a Notice of Supplemental Authority 13 accompanied by a district court opinion plaintiffs contend is “illustrative of the way in which this 14 Court should interpret the settlement agreement in a manner that is consistent with the underlying 15 litigation, the settlement agreement, and the representations Defendants make to the Court and 16 Plaintiffs in promising a meaningful appeal process allowing challenges to factual errors.” ECF 17 No. 184 at 2. On October 2, 2017, defendants filed a response in which they report that the order 18 plaintiff relies on is now on appeal. ECF No. 185 at 1. This court’s reasons for considering the 19 representations of counsel in interpreting the settlement agreement in this action are explained 20 below. 21 III. 22 ANALYSIS A. Standards 23 The Agreement provides: 24 G. CONSTRUCTION OF SETTLEMENT 25 This Settlement reflects the entire agreement of the parties and supersedes any prior written or oral agreements between them. No extrinsic evidence whatsoever may be introduced in any judicial proceeding to provide the meaning or construction of this Settlement. Any modification to the terms of this Settlement must be in writing and signed by a Board representative and attorneys for Plaintiffs and Defendants to be effective or enforceable. 7 26 27 28 1 This Settlement shall be governed and construed according to California law. The parties waive any common-law or statutory rule of construction that ambiguity should be construed against the drafter of this Settlement, and agree that the language in all parts of this Settlement shall in all cases be construed as a whole, according to its fair meaning. 2 3 4 This Settlement shall be valid and binding on, and faithfully kept, observed, performed, and be enforceable by and against the parties, their successors and assigns. 5 6 7 ECF No. 83 ¶ G. “An agreement to settle a legal dispute is a contract and its enforceability is 8 9 governed by familiar principles of contract law.” Jeff D. v. Andrus, 899 F.2d 753, 759 (9th Cir. 10 1989). Construction and enforcement of the agreement also are governed by principles of 11 contract law, id., here, California contract law. “In California, a contract is to be interpreted ‘to 12 give effect to the mutual intention of the parties as it existed at the time of contracting.’ Cal. Civ. 13 Code § 1636. Interpretation begins with the contract's language which ‘is to govern ... if the 14 language is clear and explicit.’ Id. § 1638.” Thompson v. Enomoto, 915 F.2d 1383, 1388 (9th 15 Cir. 1990); see also United Commercial Ins. Service, Inc. v. Paymaster Corp., 962 F.2d 853, 856 16 (9th Cir. 1992) (“Under California law, the intent of the parties determines the meaning of the 17 contract. Cal. Civil Code §§ 1636, 1638. The relevant intent is ‘objective’—that is, the intent 18 manifested in the agreement and by surrounding conduct—rather than the subjective beliefs of the 19 parties. Lawyer’s Title Ins. Co. v. U.S. Fidelity & Guar. Co., 122 F.R.D. 567, 569 (N.D. Cal. 20 1988); Beck v. American Health Group Int’l, 211 Cal. App. 3d 1555, 260 Cal. Rptr. 237, 242 21 (1989)). 22 Under California law, “[w]hen the parties to a written contract have agreed to it as 23 an ‘integration’—a complete and final embodiment of the terms of an agreement—parol evidence 24 cannot be used to add to or vary its terms.” Masterson v. Sine, 68 Cal.2d 222, 225 (Cal. 1968). 25 However, California also recognizes one of the broad exceptions to the parol evidence rule. Because “[n]o contract should ever be interpreted and enforced with a meaning that neither party gave it,” 3 Arthur L. Corbin, Corbin on Contracts § 572B (rule no. 2) (West 26 27 28 ///// 8 1 Supp.1991), parol evidence may be introduced to show the meaning of the express terms of the written contract. 2 3 Brinderson-Newberg Joint Venture v. Pacific Erectors, Inc., 971 F.2d 272, 277 (9th Cir. 1992) 4 (citing Pacific Gas & Elec. Co. v. G.W. Thomas Drayage & Rigging Co., 69 Cal.2d 33, 5 69 Cal. Rptr. 561, 563-65 (1968)). “To avoid completely eviscerating the parol evidence rule, 6 however, there must be reasonable harmony between the parol evidence and the integrated 7 contract for the evidence to be admissible.” Id. B. 8 Application Plaintiffs seek extension of this court’s jurisdiction based on defendant’s alleged 9 10 material noncompliance with several separate provisions of the Agreement. Each is addressed in 11 turn. 12 1. Delay in Submission of Draft Regulations 13 Paragraph C7 of the Agreement required the Board to submit draft regulations to 14 the OAL by July 1, 2016. It is undisputed the Board did not submit the draft regulations until 15 October 24, 2016. The Agreement also required the following process prior to submission of 16 draft regulations to the OAL: 17 18 19 20 21 22 23 24 [T]he Board will provide class counsel with a draft of the proposed regulation. Class counsel shall have thirty days to review the draft and provide written comments and suggestions to the Board. The Board will provide a written response to class counsel’s written comments within thirty days. When the proposed regulation is presented to the Board’s commissioners for review and a vote, class counsel may submit additional comments and suggestions through the Board’s public comment process. Once the regulation is submitted to the OAL, class counsel may again submit additional comments and suggestions through the OAL public comment process. ECF No. 83 ¶ C2. The record shows the following. On June 14, 2016, eighteen days after this court 25 gave final approval to the Agreement, the Board provided plaintiffs’ counsel with a draft of the 26 proposed regulations. ECF No. 175-3 at 2. On July 14, 2016, plaintiffs’ counsel submitted to 27 defense counsel written comments and requests for modification of the draft regulations. Id. The 28 draft regulations were presented to the Board’s commissioners on August 15, 2016. ECF No. 9 1 175-4 at 2. Plaintiffs’ counsel attended the meeting, provided comments and “recommended 2 tabling discussion on the regulations until the September, 2016 meeting.” Id. at 10-11. The 3 Board decided to table discussion of the regulations to the September 2016 meeting. Id. at 11. 4 On September 16, 2016, plaintiffs’ counsel submitted to defendant written objections to the draft 5 regulations. ECF No. 175-3 at 14-21. Plaintiffs’ counsel also attended the September 2016 6 meeting and made comments. ECF No. 175-4 at 24-25. The Board voted to approve the draft 7 regulations. Id. at 24. The draft regulations were submitted to OAL on October 24, 2016, and on 8 December 19, 2016, plaintiffs’ counsel submitted objections to the draft regulations. ECF No. 9 175-3 at 22. 10 Based on the foregoing, the court finds defendant’s delay in submitting the 11 regulations to OAL does not constitute material non-compliance with the Agreement and does 12 not, without more, provide grounds for extending this court’s jurisdiction over the Agreement. 13 2. 14 Paragraph C7 of the Agreement provides: 15 18 The Board will formalize a process for prisoners or their counsel to lodge timely written objections asserting factual errors in a CRA (to be defined in the regulations) before their parole consideration hearing occurs. If the Board receives a timely written objection in advance of a parole hearing, the Board will provide a written response within a reasonable period of time. The Board will submit draft regulations to reflect this process to the OAL by July 1, 2016. 19 ECF No. 83 ¶ C7. As discussed above, plaintiffs contend the draft regulations submitted to OAL 20 are not in compliance with this provision in four ways, all material to compliance with the 21 Agreement. 16 17 22 Paragraph C7: Objections to Factual Errors in CRAs a) 23 Audio Recordings Plaintiffs’ first contention is that the draft regulations do not provide for optional 24 recording of the CRA interviews. Defendant counters that the Agreement does not require 25 recording. 26 Nothing in the Agreement requires defendants to record or transcribe CRA 27 interviews. See ECF No. 83, passim. At the final fairness hearing, the court heard from the 28 parties on the issue of whether the risk assessment interviews should be recorded. See ECF No. 10 1 163 at 2-4. The court raised the issue in order to address objections raised by class members, a 2 significant number of whom filed objections to the proposed settlement. Id. at 4. Both counsel 3 informed the court that the parties had agreed it was “important to leave open the possibility of 4 recording,” although they had not been able to reach agreement on how to do that. Id. at 4, 6. 5 6 Proposed findings of fact filed jointly by the parties after the fairness hearing include the following: 7 Inmate class members raised concerns about factual errors in comprehensive risk assessments and requested that psychologist interviews be recorded. Defendants do not currently have a practice of creating audio recordings of psychological interviews, and the parties have not agreed to make such recordings a component of the Amended Stipulated Settlement. However, the proposed Settlement requires a meaningful appeal process (to be established by regulations) through which individual prisoners who find factual errors in the Board’s risk assessments may submit timely written objections, to which the Board must respond in a timely manner in advance of that prisoner’s parole consideration hearing. Further, Defendants are not prevented from allowing recording of risk assessment interviews in the future. 8 9 10 11 12 13 14 ECF No. 165 at 5. 15 Finally, at hearing, defense counsel represented that, in reaching its decision not to 16 include recording of CRA interviews in the regulations, the Board “indicated . . . that if, after 17 getting into the preappeal – prehearing appeal process it became apparent that there was some sort 18 of a repeated problem of these errors occurring, at that point the board could reconsider the issue 19 of recording.” ECF No. 181 at 5. 20 In sum, while the draft regulations do not provide for recording CRA interviews, 21 the Board has not foreclosed the possibility of recordings in the future. The Agreement requires 22 nothing more. The court’s jurisdiction will not be extended for purposes of further supervision of 23 this issue. 24 25 b) Definition of Factual Errors Plaintiffs next contend the draft regulations “provide an unreasonably narrow 26 definition of ‘factual errors’ to which class members may object in writing, inexplicably 27 excluding broad swaths of common errors from the pre-hearing appeals process.” ECF No. 175 28 at 10. The draft regulations define “factual error” as 11 1 2 3 an explicit finding about a circumstance or event for which there is no reliable documentation or which is clearly refuted by other documentation. Factual errors do not include disagreements with clinical observations, opinions, or diagnoses or clarifications regarding statements the risk assessment attributed to the inmate. 4 ECF No. 175-5 at 11. Plaintiffs contend this definition improperly omits “a CRA evaluator’s 5 errors in reporting statements attributed to an interviewee” and improperly shields “clinical 6 observations, opinions, or diagnoses” even where those are “directly based on erroneous 7 information.” ECF No. 175 at 10. Defendants contend the definition prohibits inmates from 8 objecting “based solely on their disagreement with the evaluator’s professional conclusions, 9 which can be properly addressed during the inmate’s parole consideration” while allowing “an 10 inmate to submit objections to a CRA where the inmate believes that a factual error materially 11 impacted the risk assessment’s conclusion.” ECF No. 176 at 15 (emphasis in original) 12 As noted above, paragraph C7 of the Agreement provides in relevant part: 13 The Board will formalize a process for prisoners or their counsel to lodge timely written objections asserting factual errors in a CRA (to be defined in the regulations) before their parole consideration hearing occurs. 14 15 16 ECF No. 83 ¶ C7. At the final fairness hearing, the parties represented that (1) they had decided 17 to work out the definition of “factual errors” as part of developing the appeals process in the 18 regulations required by the Agreement, and (2) factual errors would require reconsideration of, 19 though not necessarily a change in, the conclusion in a CRA. ECF No. 163 at 10. 20 The language excluding “clarifications regarding statements the risk assessment 21 attributed to the inmate” from the draft regulations’ definition of “factual error” first appeared in 22 an amended draft produced on or about August 4, 2016. See ECF No. 175 at 6; compare ECF 23 No. 175-2 at 3 with ECF No. 175-2 at 7. In response to objections raised by plaintiffs’ counsel to 24 this provision, defendant added a provision to the draft regulations that would allow an inmate to 25 “have the opportunity at a hearing to object to or clarify any statements a risk assessment 26 attributed to the inmate, or respond to any clinical observations, opinions, or diagnoses in a risk 27 assessment.” ECF No. 175-3 at 56; ECF No. 175-5 at 13. 28 12 1 The question is whether plaintiffs have shown by a preponderance of evidence that 2 the exclusion of CRA evaluator errors from the regulatory definition of “factual errors” 3 constitutes “material” noncompliance with the Agreement. To answer that question, the court 4 must determine the mutual intention of the parties in entering into the Agreement and whether the 5 challenged provision is consistent or inconsistent with that intention. 6 The court’s task is complicated by the fact that the Agreement itself does not 7 define “factual errors” and instead simply signals that the definition will be included in the new 8 regulations. Because the court is guided by the principles of California law, it looks to the 9 objective intent of the parties “manifested in the agreement and by surrounding conduct,” 10 including representations at the fairness hearing and in the joint proposed findings of fact filed 11 after the hearing, ECF No. 165. See United Commercial Ins. Service, Inc., 962 F.2d at 856 (and 12 citations therein). 13 At the outset, the court notes there is no meaningful dispute between the parties 14 that “clarifications regarding statements the risk assessment attributed to the inmate” are factual 15 statements, not professional judgments, nor could there be a dispute. Merriam-Webster defines 16 “factual” as “1: of or relating to facts; and 2: restricted to or based on fact.” 17 https://www.merriam-webster.com/dictionary/factual. “Fact” is defined in relevant part as “1: a 18 thing done; . . . 3: the quality of being actual; . . . 5: a piece of information presented as having 19 objective reality.” https://www.merriam-webster.com/dictionary/fact. Whether or not an inmate 20 made a particular statement is a question of fact, and errors in describing those statements, 21 whether in an initial description or a clarification of the statement, are factual errors. The 22 question is whether exclusion of these types of “factual errors” from the pre-hearing appeal 23 process constitutes material noncompliance with the intention of the parties in entering into the 24 Agreement. 25 The representations at the fairness hearing demonstrate the parties’ agreement that 26 the process for objecting to factual errors would permit objections to factual errors but not to 27 professional conclusions, and that the conclusions of CRAs found to contain factual errors, even 28 “an inconsequential factual error,” would be reconsidered but not necessarily altered if the factual 13 1 errors were not material to the conclusion. See ECF No. 163 at 10. In proposed findings of fact 2 submitted jointly to the court following the fairness hearing, the parties agreed that the Agreement 3 “requires a meaningful appeal process (to be established by regulations) through which individual 4 prisoners who find factual errors in the Board’s risk assessments may submit timely written 5 objections, to which the Board must respond in a timely manner in advance of that prisoner’s 6 parole consideration hearing.” ECF No. 165 at 5. The proposed findings of fact did not contain 7 any limitation or qualification on the type of “factual error” that could be the subject of an 8 objection. 9 At hearing, defense counsel suggested that one of the reasons this category was 10 excluded from the definition of factual error was because these types of objections “would have 11 to be investigated” and would “involve a credibility determination,” which the Board’s 12 commissioners are trained to make. ECF No. 181 at 9-10. Defense counsel explained that at a 13 parole hearing, the Commissioners “have the inmate right in front of them instead of just a written 14 statement, and they can talk to them and fully vet the inmate’s view. And so it’s not just ‘I didn’t 15 say that.’ They can delve into, ‘Well, what did you say? What were the questions asked?’ They 16 can consider what the inmate has to say and his or her demeanor as they’re asking the questions.” 17 Id. at 10. 18 Whatever potential “efficiency” might be achieved, defendants’ position, to permit 19 such objections to be raised at a parole hearing, does not conform to the parties’ mutual intention 20 to create a process for reviewing factual errors in a CRA prior to the parole hearing. The court 21 will extend its jurisdiction over this matter so the parties may redraft this part of the regulation to 22 conform to their mutual intention at the time the Agreement was made, as represented to the court 23 at the final fairness hearing. 24 Plaintiff’s second objection is without merit. The draft regulations do provide for 25 determinations to be made whether factual errors “materially impacted” the conclusions of a CRA 26 and, where such errors did materially impact the conclusions, ordering of a “new or revised risk 27 assessment.” See ECF No. 175-5 at 11-12. The extension of the court’s jurisdiction will not run 28 to this issue. 14 1 2 c) Timeline for CRAs, Objections and Responses Plaintiffs’ third contention is that the regulations do not contain a deadline by 3 which the CRA must be completed, and that the deadline for responding to timely objections, set 4 at ten days before a parole hearing, is inadequate. As the court has discussed, it is clear to the 5 court that the mutual intention of the parties in drafting paragraph C7 of the Agreement was to 6 create a process for correcting factual errors and any conclusions that flowed from material 7 factual errors prior to an inmate’s scheduled parole hearing. Completion of the CRA is the first 8 step in this process and there must be a deadline for completion of the CRA that affords an inmate 9 a meaningful opportunity to prepare and submit objections within the time set in the draft 10 regulations for submission of objections. Plaintiffs also contend that the deadline for the Board’s 11 response, ten days in advance of a hearing, is not coordinated with the timeline by which they 12 must decide whether to waive their hearings. ECF No. 175 at 10 n.1. 13 The court finds it was the mutual intent of the parties to create a meaningful 14 pre-parole hearing process for raising, considering and resolving factual errors in CRAs. 15 Deadlines and adequate review timelines are necessary components of that process. The court 16 will extend jurisdiction so the parties may modify these provisions of the draft regulations. 17 18 d) Retention of Factual Errors in CRAs in Central Files Plaintiffs’ final objection to this part of the draft regulations is that they permit 19 CRA reports that contain factual errors to remain in an inmate’s central file unless the Chief 20 Psychologist determines “that the errors ‘materially impacted’ the report’s conclusions about 21 violence risk.” ECF No. 175 at 11. This objection is well-taken. 22 The draft regulations set forth the following process for reviewing objections. 23 First, the Chief Counsel reviews the risk assessment to which objection has been made to 24 determine whether it “contains a factual error as alleged.” ECF No. 175-5 at 12. If the Chief 25 Counsel finds no factual error, the Chief Counsel issues a decision explaining the results of that 26 review. Id. If the Chief Counsel finds a factual error, the matter is referred to the Chief 27 Psychologist to review the assessment and “opine whether the identified factual error materially 28 impacted the risk assessment’s conclusions regarding the inmate’s risk of violence.” Id. The 15 1 Chief Psychologist’s determination is to be documented in an addendum to the risk assessment. 2 Id. If the Chief Psychologist’s determination is that the factual error did not materially impact the 3 CRA’s conclusions, the objection is to be overruled by the Chief Counsel. Id. If the Chief 4 Psychologist’s determination is that the factual error did materially impact the conclusions, the 5 Chief Counsel is required to order a new or revised risk assessment, among other things. Id. 6 As discussed above in the section on definition of factual error, the Agreement 7 does not limit the types of factual errors to which objections can be raised during the pre-hearing 8 review process. Instead, the intent of the Agreement was to provide a pre-hearing process for 9 (1) correcting factual errors found in CRAs; (2) reviewing the conclusions of CRAs that contain 10 factual errors; and (3) changing conclusions materially affected by factual errors. At the outset, 11 the court notes that the draft regulations attempt to limit objections that can be raised to those 12 factual errors in a CRA that an inmate or his counsel believe “materially impact the risk 13 assessment’s conclusions regarding the inmate’s risk of violence.” ECF No. 175-5 at 12. For that 14 reason, the draft regulations provide that objections will be “overruled” if the factual errors cited 15 in the objections “did not materially impact the risk assessment’s conclusions regarding the 16 inmate’s risk of violence.” Id. 17 This provision is contrary to the mutual intention of the parties as it has been 18 represented to this court concerning the process for correcting factual errors in CRAs. 19 Specifically, the proposed regulation conflates correcting factual errors in CRAs with amending 20 conclusions affected by material factual errors. The parties’ representations at the fairness 21 hearing were to the contrary, demonstrating the parties’ intention that a finding of factual errors in 22 a CRA would generate review of the CRA’s conclusions and amendment if the errors were 23 material. To conform to the parties’ expressed intent, the regulations must provide some 24 mechanism for correcting factual errors in the relevant records. This does not necessarily require 25 issuance of a new CRA in every instance in which factual errors are found, but it does require that 26 the regulations contain provisions for ensuring factual errors do not stand uncorrected in a manner 27 that they could still have force in the parole process, however, inadvertently. The court’s 28 16 1 jurisdiction will be extended so the draft regulations may be amended to conform to the parties’ 2 intention to create a process for correcting factual errors in CRAs. 3 3. 4 Finally, as discussed above, plaintiffs contend defendant has failed to comply with 5 6 7 8 9 10 Paragraphs C10 and C11: Risk Rating and Recidivism paragraphs C10 and C11 of the Agreement, which provide: 10. All future CRAs will clarify that the Overall Risk Rating is relative to other life prisoners. 11. CRAs will inform the reader of the report that, generally speaking, the current recidivism rates for long term offenders are lower than those of other prisoners released from shorter sentences. ECF No. 83 ¶¶ C10, C11. 11 As noted above, defendant represents that: 12 All CRAs now include one of the following explanations about the inmate’s risk of violence. Which explanation is used is based on the inmate’s overall risk rating of either low, moderate, or high, and does not vary. 13 14 15 16 17 18 19 20 21 22 23 • Low Risk: “The inmate is a low risk of violence. He represents a non-elevated risk relative to long-term inmates and to other parolees. Low-risk examinees are expected to commit violence much less frequently than all other parolees.” • Moderate Risk: “The inmate is a moderate risk of violence. He represents an elevated risk relative to long-term inmates and nonelevated risk relative to other parolees. Moderate-risk examinees are expected to commit violence more frequently than Low-risk long-term parolees but less frequently than other parolees.” • High Risk: “The inmate is a high risk of violence. He represents a markedly elevated risk relative to long-term inmates and average risk relative to other parolees. High-risk examinees are expected to commit violence more frequently than Low- and Moderate-risk long-term parolees and similarly to other parolees.” ECF No. 176 at 21. This language does not comply with paragraphs C10 or C11 in two ways. 24 First, the language tendered by defendant does not make clear that the risk rating 25 “is relative to other life prisoners” as required by paragraph C10 of the Agreement. Instead, the 26 language compares the class member’s risk to “long-term inmates and to other parolees.” ECF 27 No. 83 ¶ C10. This does not satisfy the requirement of paragraph C10 that the comparison be “to 28 other life prisoners”. 17 1 Second, nothing in the language provided by defendant informs the reader that 2 “generally speaking, the current recidivism rates for long term offenders are lower than those of 3 other prisoners released from shorter sentences” as required by paragraph C11. 4 Plaintiff has demonstrated by a preponderance of evidence that defendants have 5 not materially complied with paragraphs C10 or C11 of the Agreement. The court’s jurisdiction 6 will therefore be extended to permit defendant to come into compliance with these provisions. 7 In accordance with the above, IT IS HEREBY ORDERED that 8 1. The Clerk of the Court is directed to change the short title of this action to 9 reflect the dismissal of all defendants except Jennifer Shaffer; and 10 2. Plaintiffs’ motion to extend jurisdiction, ECF No. 175, is granted in part, in 11 accordance with this order. The court’s jurisdiction shall terminate upon 12 compliance with this order or one year from the date of this order, whichever is 13 sooner. 14 DATED: October 6, 2017. 15 UNITED STATES DISTRICT JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 18

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