Valdivia v. Schwarzenegger

• Decision Date: 25 March 2010
• Docket Number: No. 08-15889,No. 09-15836,08-15889,09-15836
• Citation: 599 F.3d 984
• Parties: Jerry VALDIVIA; Alfred Yancy; Hossie Welch, on their own behalf and on behalf of the class of all persons similarly situated, Plaintiffs-Appellees, v. Arnold SCHWARZENEGGER, Governor of the State of California, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

599 F.3d 984

Jerry VALDIVIA; Alfred Yancy; Hossie Welch, on their own behalf and on behalf of the class of all persons similarly situated, Plaintiffs-Appellees, v. Arnold SCHWARZENEGGER, Governor of the State of California, Defendant-Appellant.

No. 08-15889

No. 09-15836

United States Court of Appeals

Ninth Circuit.

Argued and Submitted: Jan. 11, 2010.

Filed: March 25, 2010.

COPYRIGHT MATERIAL OMITTED

Vickie P. Whitney, Office of the Attorney General of the State of California Sacramento, CA, and S. Anne Johnson Hanson Bridgett LLP, San Francisco, CA for the defendant-appellant.

Loren G. Stewart and Ernest Galvan Rosen, Bien & Galvan LLP, San Francisco, CA; Geoffrey Holtz, Bingham McCutchen LLP, San Francisco, CA, for the plaintiffs-appellees.

Kent S. Scheidegger, Criminal Justice Legal Foundation, Sacramento, CA, for amici Criminal Justice Legal Foundation, Crime Victims United of California, and Senator George Runner.

Wendy Musell, Stewart & Musell, San Francisco, CA, for amici The American Civil Liberties Union of Northern California, Legal Services for Prisoners and Children, The Justice Policy Institute, the National Council on Crime and Delinquency, The Sentencing Project, Hadar Aviram, W. David Ball, Sharon Dolovich, Malcolm M. Feeley, Michael Pinard, Jonathan Simon and Jeremy Travis.

Appeal from the United States District Court for the Eastern District of California, Lawrence K. Karlton, District Judge, Presiding. D.C. No. 2:94-CV-00671LKK-GGH.

Before JOHN T. NOONAN, MICHAEL DALY HAWKINS and MILAN D. SMITH, JR., Circuit Judges.

Opinion by Judge HAWKINS; Partial Concurrence and Partial Dissent by Judge NOONAN.

HAWKINS, Circuit Judge:

These consolidated appeals stem from the November 2003 Valdivia Permanent Injunction ("the Injunction")—based on a stipulation between Jerry Valdivia ("Valdivia") and a class of similarly situated California parolees ¹ ("Plaintiffs"), and Governor Arnold Schwarzenegger and the State of California (collectively "the State")— prescribing procedures for parole revocation hearings in California. Here, the State appeals two post-Injunction orders (1) the March 25, 2008 order ("March 2008 order") adopting the Injunction-related recommendations of the court-appointed Special Master regarding the use of hearsay evidence in parole revocation hearings; and (2) the March 26, 2009 order ("March 2009 order") denying the State's motion to modify the Injunction to conform to the voter promulgated statute, Cal.Penal Code § 3044, formerly California Proposition 9 ("Proposition 9").

Bound by United States v. Comito, 177 F.3d 1166 (9th Cir.1999), we affirm the March 2008 order. Because the March 2009 order made no express determination that any aspect of the California parole revocation procedures, as modified by Proposition 9, violated federal constitutional rights, nor any determination that the Injunction was necessary to remedy a constitutional violation, we vacate and remand the March 2009 order for the district court to make that determination and to reconcile the Injunction and Proposition 9.

Background Facts & Procedural

History

In May 1994, Plaintiffs challenged the constitutionality of parole revocation procedures under the Fourteenth Amendment's right to due process, as defined in Morrissey v. Brewer, 408 U.S. 471, 487-90, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), and Gagnon v. Searpelli, 411 U.S. 778, 786, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). The district court granted partial summary judgment in favor of Plaintiffs, holding that California's parole revocation hearing system violated their procedural due process rights. Valdivia v. Davis, 206 F.Supp.2d 1068, 1078 (E.D.Cal.2002). The parties later agreed to the Injunction, which limited "the use of hearsay evidence... by parolees' confrontation rights in the manner set forth in... Comito."

The March 2008 order

In response to the parties' attempts to clarify the Injunction in light of United States v. Hall, 419 F.3d 980 (9th Cir.2005), and after additional briefing and a hearing, the Special Master recommended: (1) the State should be found in violation of the Injunction; (2) all hearsay is subject to Comito balancing—weighing "the releas ee's interest in his constitutionally guaranteed right to confrontation against the Government's good cause for denying it, " Comito, 177 F.3d at 1170; (3) hearsay exceptions do not eliminate having to engage in full Comito balancing; and (4) the State did not demonstrate compliance with paragraph 24 of the Injunction.² In its March 2008 order, the district court fully adopted the Special Master's conclusions and recommendations. The State subsequently filed this timely appeal.

The March 2009 order

Following passage of Proposition 9, Plaintiffs moved the district court to enforce the Injunction and bar implementation of Proposition 9 clue to its conflict with the Injunction. The State countered with a motion to modify the Injunction to conform to Proposition 9.

After oral argument, the district courtissued its March 2009 order, granting, in part, Plaintiffs' motion to enforce the Injunction, and denying the State's motion to modify it. The district court found that while several provisions of Proposition 9 conflict with the Injunction, application of the Supremacy Clause meant the Injunction prevails over state law, to the extent of any conflict. Modification was also not warranted, according to the district court, because Proposition 9 did not constitute a change in applicable law or facts. The court did not reach whether Proposition 9 violates the U.S. Constitution. The State then filed this timely appeal of the March 2009 order, and the two appeals were consolidated.

JURISDICTION

We have jurisdiction over the appeal of both orders pursuant to 28 U.S.C. § 1292(a)(1).

Because the March 2008 order modifies an existing injunction, it is immediately appealable under 28 U.S.C. § 1292(a)(1). See Gon v. First State Ins. Co., 871 F.2d 863, 865-66 (9th Cir.1989). It also fulfills the three-part test of Thompson v. Enomoto, 815 F.2d 1323, 1326-27 (9th Cir. 1987). First, it "ha[d] the practical effect of the grant or denial of an injunction": it added the recommendations of the Special Master to the Injunction and mandated them, including the qualitative assessment and training of Deputy Commissioners and the Special Master's new role as a moderator and supervisor. See id. Second, it had "serious, perhaps irreparable consequences, " id., such as the possible contravention of Supreme Court precedent by imposing "numerous... costly obligations" on the State, including additional required training and monitoring programs. Cf. Negrete v. Allianz Life Ins. Co. of N. Am., 523 F.3d 1091, 1097 (9th Cir.2008) (finding serious consequences where "none of the other cases in which Allianz is, or may be, involved can be settled by or in the other courts in which they are located absent permission of Negrete Counsel and the court in this case"). Finally, it "can only be challenged by immediate appeal because if[the State] awaits the final determination of this case" the damage to hearsay determinations in parole hearings, and the cost of monitoring the Deputy Commissioners, will have already accrued. See id. It is unclear how long this litigation, which began over 15 years ago, will continue before a final judgment issues. "A decision by us months or years after that cannot repair the damage." Id.

The March 2009 order is appealable, as both parties concede, under 28 U.S.C. § 1292(a)(1), as the State is appealing an order refusing to modify an injunction.

STANDARD OF REVIEW

The district court's March 2008 order adopted the Special Master's report and recommendations in its entirety. The legal conclusions of a Special Master are reviewed de novo. See United States v. Clifford Matley Family Trust, 354 F.3d 1154, 1163 n. 10 (9th Cir.2004). Factual findings of a Special Master are entitled to deference and reviewed for clear error. See Labor/Cmty. Strategy Ctr. v. Los Angeles County Metro. Transit Auth., 263 F.3d 1041, 1049 (9th Cir.2001).

"[M]atters of discretion, " such as evidentiary rulings and interpretations of the Federal Rules of Civil Procedure, are reviewed for abuse of discretion. Harman v. Apfel, 211 F.3d 1172, 1175 (9th Cir. 2000). Under this standard, a reviewing court cannot reverse absent a definite and firm conviction that the district court committed a clear error of judgment in the conclusion it reached upon a weighing of relevant factors. SEC v. Coldicutt, 258 F.3d 939, 941 (9th Cir.2001). Motions for relief from judgment under Fed.R.Civ.P. 60(b), such as the one present in the appeal of the March 2009 order, are reviewed for abuse of discretion. See United States v. Asarco Inc., 430 F.3d 972, 978 (9th Cir.2005).

ANALYSIS

I. The March 2008 Order

The State argues the district court erred in applying the Comito test to parole revocation hearings via the March 2008 order. It contends any hearsay evidence falling under a traditional or long-standing exception ought not to be subject to the Comito balancing test, based on this court's holding in Hall, 419 F.3d 980. This argument, however, fails. The law of this circuit is clear: the Comito test remains central to confrontation rights in parolehearings. The district court did not err in subjecting the State's parole revocation hearings to these requirements.

A. Nature of the confrontation rights of parolees

We begin by noting that parole revocation hearings are "not part of a criminal prosecution and thus the full panoply of lights due a [criminal] defendant" are not due a parolee. Morrissey 408 U.S. at 480, 92 S.Ct. 2593. Nonetheless, parolees are due certain "minimum requirements of due process, " including the right to confront witnesses. Id. at 488-89, 92 S.Ct. 2593. These rights, however, are based in the Due Process Clause of the Fourteenth and Fifth Amendments and not in the Confrontation Clause of the Sixth Amendment and its articulation in the Crawford ...