Valdivia v. Schwarzenegger

• Decision Date: 26 March 2009
• Docket Number: Civ. No. S-2-94-671 LKK/GGH.
• Court: U.S. District Court — Eastern District of California
• Parties: Jerry VALDIVIA, Alfred Yancy, and Hossie Welch, on their own behalf and on behalf of the class of all persons similarly situated, Plaintiffs, v. Arnold SCHWARZENEGGER, Governor of the State of California, et al., Defendants.

603 F.Supp.2d 1275

Jerry VALDIVIA, Alfred Yancy, and Hossie Welch, on their own behalf and on behalf of the class of all persons similarly situated, Plaintiffs, v. Arnold SCHWARZENEGGER, Governor of the State of California, et al., Defendants.

Civ. No. S-2-94-671 LKK/GGH.

United States District Court, E.D. California.

March 26, 2009.

Donald Specter, Prison Law Office, Berkeley, CA, Michael Bien, Holly M. Baldwin, Ernest Galvan, Rosen Bien & Galvan, LLP, Kristen A. Palumbo, Geoffrey T. Holtz, Bingham McCutchen LLP, San Francisco, CA, for plaintiffs.

S. Anne Johnson, Paul B. Mello, Hanson Bridgett LLP, San Francisco, CA, for defendants.

ORDER

LAWRENCE K. KARLTON, District Judge.

Plaintiffs are a class comprising California parolees who challenged the parole revocation procedures utilized by defendants as violative of their due rights under the Fourteenth Amendment. After the court granted partial summary judgment in favor of the plaintiffs, a stipulated permanent injunction was entered in March 2004. The instant motion seeks to enforce the injunction notwithstanding the passage of Proposition 9 by California's voters on November 4, 2008. Plaintiffs assert that portions of Section 5.3 of Proposition 9 conflicts with the requirements of the injunction. Defendants cross-move to modify the injunction to conform to Proposition 9. The court resolves the motions on the papers and after oral argument. For the reasons stated herein, the court grants plaintiffs' motion and denies defendants'.

I. BACKGROUND AND FACTS¹

A. Procedural History

This case commenced in 1994. That year it was certified as a class action, the plaintiff class consisting of (1) California parolees at large; (2) California parolees in custody as alleged parole violators, and who are awaiting revocation of their state parole; and (3) California parolees who are in custody having been found in violation of parole and who have been thereupon sentenced to prison custody. In June 2002, the court granted plaintiffs' motion for partial summary judgment on the issue of whether defendants' parole revocation procedures violated the class members' due process rights. See Valdivia v. Davis, 206 F.Supp.2d 1068 (E.D.Cal.2002).

At the time of the order defendants had operated a parole revocation process that was constitutionally problematic for several reasons. A parolee could be retaken into custody if his parole officer believed that the parolee had violated his parole and represented a danger of absconding or a danger to himself, others, or others' property. He was to receive notice of the reasons for the parole hold within seven days of it being placed. After the parole hold was placed, the parole officer had a case conference with his supervisor to decide whether there was probable cause to believe the parolee violated his parole. This decision and the reasons thereof were then memorialized in a report that was sent to the Board of Prison Terms ("BPT"). Based on this report, the BPT created a "screening offer" for the parolee, which was essentially an offer of the revocation of parole for a specific term of incarceration in exchange for the parolee's waiver of his right to a revocation hearing. If the parolee chose not to waive his right to a revocation hearing, the California regulations provided for forty-five days as the time in which the hearing was to occur. Although this deadline was not mandatory, the vast majority of revocation hearings occurred within that timeframe.

This procedure, the court concluded, violated parolees' due process rights as set forth in Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), and Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). In those cases, the Court had held that a probable cause hearing must be held promptly for parolees being held in custody, and the defendants' forty-five day deadline for holding revocation hearings did not meet that definition under any court's formulation. The court's holding was based on the parolee's right to be promptly heard when his liberty interest was at stake as well as his due process interest in the state making a reliable parole revocation determination. Valdivia v. Davis, 206 F.Supp.2d at 1078.

B. Creation of a Remedy

In October 2002, the court ordered defendants to file a proposed remedial plan to address the Constitutional deficiencies identified in the June order. The parties were also directed to meet and confer so that the defendants could adapt the proposed remedial plan into a proposed remedial order to be presented to the court.

On July 23, 2003, the court issued an order responding to the defendants' request for guidance from the court as to "what precisely the Constitution requires with respect to the timing and content of revocation hearings." Order, July 23, 2003 at 3-4. The court expressed its hesitation at doing so since procedural due process requirements are flexible as to each factual situation. Nevertheless, to facilitate the development of an adequate remedy, the court explained what it understood to be the minimum features that the plan would need to include in order to be constitutionally sound.

After a comprehensive review of the case law surrounding the promptness of probable cause hearings in the parole context, as well as in the context of other constitutional deprivations, the court advised the defendants that, "a period of ten days [to hold a probable cause hearing] strikes a reasonable balance between inevitable procedural delays and the state's interest in conducting its parole system, on the one hand, and the liberty interests of the parolees, on the other."² Id. at 13.

Recalling that the summary judgment order rested not only on the importance of the promptness of the probable cause hearing but its accuracy as well, the court then set forth some minimal standards for the probable cause hearings. As stated in Morrissey, the parolee needed to have notice of the grounds for his revocation, the probable cause hearings needed to be conducted by a neutral decisionmaker and the parolee had to have an opportunity to present documentary evidence and witnesses and to cross-examine adverse witnesses. Finally, the results of the hearing needed to be documented in a written report. Alternatively, the defendants could hold a unified hearing that was sufficiently prompt and whose contents met the due process requirements for both probable cause and revocation hearings.

After months of delay by defendants in filing their proposed remedial plan, caused by the defendants' appeal of the court's order, withdrawal of the appeal, and failed settlement negotiations with plaintiffs, the court granted defendants "one last chance" to file a remedial plan by November 29, 2003. Order, Nov. 5, 2003 at 4. On November 24, the parties filed a stipulated motion for approval of settlement.

C. The Stipulated Permanent Injunction

Pursuant to the settlement, a stipulated permanent injunction was provided to the court, which issued it by order on March 9, 2004. There are several provisions relevant to the instant motion:

1) A parole revocation hearing shall be held no later than 35 calendar days from the date of the placement of the parole hold. Stipulated Permanent Injunction ("Inj.") ¶¶ 11(b)(iv), 23.

2) Defendants shall hold a probable cause hearing no later than 10 business days after the parolee has been served with notice of the charges and rights, which shall occur not later than three business days from the placement of the parole hold. Inj. ¶ 11(d).

3) Defendants shall appoint counsel for all parolees at the beginning of the RTCA³ stage of the revocation proceedings. Defendants shall provide an expedited probable cause hearing upon a sufficient offer of proof by appointed counsel that there is a complete defense to all parole violation charges that are the basis of the parole hold. Inj. ¶ 11(b)(I).

4) At probable cause hearings, parolees shall be allowed to present evidence to defend or mitigate against the charges and proposed disposition. Such evidence shall be presented through documentary evidence or the charged parolee's testimony, either or both of which may include hearsay testimony. Inj. ¶ 22.

5) The use of hearsay evidence shall be limited by the parolees' confrontation rights in the manner set forth under controlling law as currently stated in United States v. Comito, 177 F.3d 1166 (9th Cir.1999). The Policies and Procedures shall include guidelines and standards derived from such law. Inj. ¶ 24.

6) Parolees' counsel shall have the ability to subpoena and present witnesses and evidence to the same extent and under the same terms as the state. Inj. ¶ 21.

The injunction was accompanied by the defendants' remedial plan, a primary feature of which was the use of remedial sanctions or community-based treatment in lieu of the parole officer finding a parole violation. Valdivia Remedial Plan at 1-2. It also provided that when an expedited hearing is granted, it is to be held within the sixth and eighth business day after the placement of the parole hold, or as soon as possible thereafter. Id. at 4. As the court held in its June 9, 2005 order, this plan was integrated into the Injunction and thus binds the defendants.

D. Proposition 9

On November 4, 2008, the voters of California passed Proposition 9, the "Victims' Bill of Rights Act of 2008: Marsy's Law." The initiative was based on the conclusion that the rights of crime victims were not adequately respected in the criminal justice process, specifically mentioning perceived problems in the parole consideration process for those convicted of violent crimes. Declaration of Geoffrey T. Holtz in Support of Motion to Enforce Injunction ("Holtz Decl.") ¶ 5, Ex. D (text of Proposition 9, hereafter "Prop. 9") § 2.⁴ In its Statement of Purpose and Intent, the proposition provides in full,

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