Jones v. Allison

• Decision Date: 20 August 2021
• Docket Number: No. 20-15795,20-15795
• Citation: 9 F.4th 1136
• Parties: Forrest Lee JONES; Rodrigo Ruben Escarcega; Dennis Barnes, on behalf of themselves and all others similarly situated, Plaintiffs-Appellants, v. Kathleen ALLISON, Secretary of the California Department of Corrections and Rehabilitation, in her official capacity; Ralph Diaz, in his individual capacity; Scott Kernan, in his individual capacity; and John Does 1–10, in their individual and official capacities, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

9 F.4th 1136

Forrest Lee JONES; Rodrigo Ruben Escarcega; Dennis Barnes, on behalf of themselves and all others similarly situated, Plaintiffs-Appellants,

v.Kathleen ALLISON,^* Secretary of the California Department of Corrections and Rehabilitation, in her official capacity; Ralph Diaz, in his individual capacity; Scott Kernan, in his individual capacity; and John Does 1–10, in their individual and official capacities, Defendants-Appellees.

No. 20-15795

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 1, 2021 San Francisco, California

Filed August 20, 2021

Ernest Galvan (argued), Michael W. Bien, and Rekha Arulanantham, Rosen Bien Galvan & Grunfeld LLP, San Francisco, California, for Plaintiffs-Appellants.

Cassandra J. Shryock (argued) and Jeffrey T. Fisher, Deputy Attorneys General; Misha D. Igra, Supervising Deputy Attorney General; Monica N. Anderson, Senior Assistant Attorney General; Office of the Attorney General, San Francisco, California; for Defendants-Appellees.

Before: Sandra S. Ikuta and Jacqueline H. Nguyen, Circuit Judges, and Richard K. Eaton,^** Judge.

EATON, Judge:

The issue before us is whether state executive officials of the California Department of Corrections and Rehabilitation (the "CDCR"),¹ are immune from claims brought under 42 U.S.C. § 1983 for damages stemming from the CDCR's adoption of regulations pursuant to the authority delegated to it by the California Constitution.

I

In November 2016, California voters passed Proposition 57, which amended the California Constitution by adding Article I, Section 32. See Cal. Const. art. I, § 32 (" Section 32"). Section 32 granted eligibility for early parole consideration to state prison inmates convicted of nonviolent felonies who had completed the full term for their primary offense. See id. § 32 (a)(1) ("Any person convicted of a nonviolent felony offense and sentenced to state prison shall be eligible for parole consideration after completing the full term for his or her primary offense."). Section 32 authorized the CDCR to adopt implementing regulations: "The [CDCR] shall adopt regulations in furtherance of [ Section 32 ’s] provisions, and the Secretary of the [CDCR] shall certify that these regulations protect and enhance public safety." See id. § 32 (b).

In 2017 and 2018, the CDCR adopted regulations (collectively, the "Regulations"), which excluded from early parole consideration nonviolent felony offenders sentenced to indeterminate sentences under California's Three Strikes Law.² In 2018, the California Court of Appeal found that the Regulations’ exclusion of these offenders was inconsistent with Section 32. See In re Edwards , 26 Cal.App.5th 1181, 237 Cal. Rptr. 3d 673, 682 (2018) ("[The] CDCR's adopted regulations impermissibly circumscribe eligibility for Proposition 57 parole by barring relief for Edwards and other similarly situated inmates serving Three Strikes sentences for nonviolent offenses. The offending provisions of the adopted regulations are inconsistent with section 32 and therefore void.").

Thereafter, in 2019, the CDCR amended the Regulations to include, for early parole consideration, state prisoners serving indeterminate sentences for nonviolent third-strike offenses (the "Amendments"). See Cal. Code Regs. tit. 15, § 2449.30 (2019). In the Amendments, the CDCR set a deadline of December 31, 2021 by which to schedule parole consideration hearings for all of the previously excluded offenders. See id. § 2449.32(b).

Forrest Jones, Rodrigo Escarcega, and Dennis Barnes ("Plaintiffs") are felony offenders previously sentenced under California's Three Strikes Law whose "third strike" was a nonviolent felony, and who became eligible for early parole under the Amendments. Plaintiffs brought claims under 42 U.S.C. § 1983³ on behalf of themselves, a class, and two subclasses,⁴ against former and current CDCR officials ("Defendants").⁵

Plaintiffs asserted claims for damages against Defendants in their individual capacities. Specifically, Plaintiffs sought relief for alleged violations of their Fourteenth Amendment procedural and substantive due process rights for the time they spent incarcerated and ineligible for early parole consideration because of the unlawful Regulations.⁶

On a Rule 12(b)(6) motion by Defendants, the District Court dismissed Plaintiffs’ case with prejudice. It dismissed the claims for damages as barred by qualified immunity. Thereafter, Plaintiffs appealed.

Dismissals for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) are reviewed de novo . See Palm v. L.A. Dep't of Water & Power , 889 F.3d 1081, 1085 (9th Cir. 2018). Additionally, grants of immunity to government officials are reviewed de novo . See Kaahumanu v. County of Maui , 315 F.3d 1215, 1219 (9th Cir. 2003).

We may affirm a District Court's decision granting a motion to dismiss on any ground supported by the record. See McQuillion v. Schwarzenegger , 369 F.3d 1091, 1096 (9th Cir. 2004) (explaining that the appeals court "may affirm on any ground supported by the record"). Here, we affirm the dismissal of Plaintiffs’ claims for damages under the doctrine of legislative immunity.

II

A

Under the doctrine of legislative immunity, members of Congress and state legislators are entitled to absolute immunity from civil damages for their performance of lawmaking functions. See Tenney v. Brandhove , 341 U.S. 367, 376–77, 379, 71 S.Ct. 783, 95 L.Ed. 1019 (1951) (finding that state legislators were absolutely immune from damages when acting within the "sphere of legitimate legislative activity"). Legislative immunity, however, is not limited to officials who are members of legislative bodies. See Cleavinger v. Saxner , 474 U.S. 193, 201, 106 S.Ct. 496, 88 L.Ed.2d 507 (1985) ("Absolute immunity flows not from rank or title or ‘location within the Government,’ but from the nature of the responsibilities of the individual official." (citation omitted) (quoting Butz v. Economou , 438 U.S. 478, 511, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978) )). "[O]fficials outside the legislative branch are entitled to legislative immunity when they perform legislative functions." Bogan v. Scott-Harris , 523 U.S. 44, 55, 118 S.Ct. 966, 140 L.Ed.2d 79 (1998).

Thus, under this functional approach, the Supreme Court has held that legislative immunity does not depend on the actor so much as the functional nature of the act itself. See id. at 54–55, 118 S.Ct. 966 ("Absolute legislative immunity attaches to all actions taken ‘in the sphere of legitimate legislative activity.’ " (quoting Tenney , 341 U.S. at 376, 71 S.Ct. 783 )).

We too have employed a functional approach in legislative immunity cases. In Kaahumanu , we considered whether local council-members were entitled to legislative immunity for their denial of a conditional land-use permit. See 315 F.3d at 1218–20. In holding that the members’ decision was not functionally legislative in nature, we found that the denial of the permit did not bear the "hallmarks of traditional legislation," in part because the decision was made on an ad hoc basis affecting only a few individuals, rather than developing policy. Id. at 1223–24. This idea is also found in Cinevision Corp. v. City of Burbank , where we stated that a legislative function "involve[s] the formulation of policy ‘as a defined and binding rule of conduct.’ " 745 F.2d 560, 580 (9th Cir. 1984) (quoting Yakus v. United States , 321 U.S. 414, 424, 64 S.Ct. 660, 88 L.Ed. 834 (1944) ).

Other circuits have held that officers, and indeed employees, of the executive branch of a state government may benefit from legislative immunity. See, e.g. , Redwood Vill. P'ship v. Graham , 26 F.3d 839, 842 (8th Cir. 1994) (holding that "[state] executive officials are absolutely immune from suits for money damages under section 1983 for their promulgation of rules"); see also, e.g. , State Emps. Bargaining Agent Coal. v. Rowland , 494 F.3d 71, 82 (2d Cir. 2007) ("Legislative immunity shields from suit not only legislators, but also officials in the executive and judicial branches when they are acting ‘in a legislative capacity.’ " (quoting Bogan , 523 U.S. at 55, 118 S.Ct. 966 )).

B

We first address Defendants’ authority to adopt the Regulations—a threshold requirement for entitlement to legislative immunity. See Schmidt v. Contra Costa County , 693 F.3d 1122, 1132 (9th Cir. 2012). Plaintiffs argue that Defendants lacked such authority because the Regulations were ultimately determined to be unlawful. In Plaintiffs’ view, "[t]he regulatory authority in Section 32 (a)(2)(b) [is] for ‘regulations in furtherance of these provisions,’ not regulations to re-write these provisions to withhold them from persons the voters intended to benefit." Plaintiffs thus contend that the adoption of the particular Regulations was simply not authorized by Section 32, because the California Court of Appeal later found that the Regulations violated the California Constitution.

We reject this argument for the reason that an official's "authority to regulate" does not depend on whether a particular action yielded an enforceable or sustainable result. Rather, it exists where "officials ‘act[ed] in the sphere of legitimate legislative activity.’ " Schmidt , 693 F.3d at 1132 (alteration in original) (quoting Tenney , 341 U.S. at 376, 71 S.Ct. 783 ).

There can be little doubt that Defendants acted within the legislative sphere when they participated in the adoption of the Regulations. The authority delegated to the CDCR was to "adopt regulations in furtherance of [ Section 32 ’s] provisions." Cal. Const. art. I, § 32 (b) (emphasis added). This is precisely what Defendants did. Thus, they acted "within their ... delegated legislative powers." Schmidt , 693 F.3d at 1132. That the Regulations were later found to violate the California Constitution does not diminish Defendants’ authority to adopt the Regulations in the first place. In other words, Section 32 ’s authorization placed De...