Valdivia v. Schwarzenegger

• Decision Date: 25 March 2008
• Docket Number: No. Civ. S:94-cv-671 LKK/GGH.,Civ. S:94-cv-671 LKK/GGH.
• Citation: 548 F.Supp.2d 852
• 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.
• Court: U.S. District Court — Eastern District of California

548 F.Supp.2d 852

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.

No. Civ. S:94-cv-671 LKK/GGH.

United States District Court, E.D. California.

March 25, 2008.

Bingham McCutchen, Karen Kennard, Kristen A. Palumbo, San Francisco, California, Prison Law Office, Donald Specter, General Delivery, San Quentin, California, Stephen J. Perrello, Jr., San Diego, California, Rosen, Bien & Asaro, LLP, Michael W. Bien, Ernest Galvan, Mari L. Willits, San Francisco, California, Alex Landon, San Diego, California, for Plaintiffs.

Thomas S. Patterson, Deputy Attorney General, for Defendants.

Edmund G. Brown Jr., Attorney General of the State of California, James M. Humes, Chief Assistant Attorney General, Frances T. Grander, Senior Assistant Attorney General, Rochelle C. East, Supervising Deputy Attorney General, Vickie P. Whitney, State Bar No. 145316, Supervising Deputy Attorney General, Jessica R. Devencenzi, State Bar No. 232427, Deputy Attorney General, Sacramento, CA, for Defendants.

ORDER

LAWRENCE K. KARLTON, Senior District Judge.

On February 25, 2008, the Special Master filed his report and recommendations regarding the use of hearsay evidence in parole revocation proceedings. See Permanent Injunction, at 880, The defendants have filed objections to the Special Master's report; the plaintiffs encourage the court to adopt it. with modification. The court declines both parties' requests and adopts the Special Master's report and recommendations.

Despite defendants' objections, the court agrees with the Special Master's interpretation of United States v. Comito, 177 F.3d 1166 (9th Cir.1999), United States v. Hall, 419 F.3d 980 (9th Cir.2005) and related hearsay cases in this Circuit, and their application to the defendants' parole revocation proceedings. His findings of fact are supported by the record. The Special Master's recommendations appear to the court well-calculated to ensure the due process protections as expressed by the Supreme Court and the Ninth Circuit are respected. All of defendants' objections are overruled.

Plaintiffs' principally request that the Special Master's recommendations be amended to include concrete deadlines by which the defendants must accomplish certain remedial measures.¹ The court declines to do so and defers to the Special Master, in his conscientious attention to and intimate knowledge of the case, to ensure that the remedial measures ordered are completed expeditiously.

Accordingly, the court ORDERS:

1. The court ADOPTS the Special Master's Report and Recommendations Regarding Motion to Enforce Paragraph 24 of the Valdivia Permanent Injunction (Docket No. 1398);

2. The parties SHALL undertake the acts recommended by the Special Master at pp. 863-71 of the Report. The court defers to the Special Master to ensure these acts are timely accomplished. Should he believe necessary, the Special Master may move the court to require specific deadlines.

IT IS SO ORDERED.

REPORT AND RECOMMENDATION REGARDING MOTION TO ENFORCE PARAGRAPH 24 OF THE VALDIVIA PERMANENT INJUNCTION

CHASE RIVELAND, Special Master.

INTRODUCTION

This Court entered a Stipulated Order for Permanent Injunctive Relief in this action ("Permanent Injunction") on March 9, 2004. Among its provisions is the following requirement:

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.

See Ex. A at 6 (Permanent Injunction).

While Defendants distributed policies and procedures in 2004, the parties have not agreed as to their adequacy. Further dispute arose when, in 2006, Defendants wished to amend practices based on recent case law.

The parties met and conferred concerning this Permanent Injunction requirement in 2007. In August 2007, the parties determined that they wished to seek clarification of what the law requires in light of recent developments in case law. They chose to pursue a fact-finding hearing held by the Special Master with Report and Recommendation to the Court, and de novo review by the Court, as provided for in Paragraph IV.E of the Stipulation and Amended Order Re: Special Master Order of Reference.

On December 14, 2007, this matter came on for hearing. Documents were produced in response to two requests for production. Having reviewed the pleadings, arguments of counsel, and documents, the Special Master submits the following Report and Recommendation for the Court's consideration.

FINDINGS OF FACT

1. Policies and procedures concerning the application of Comito and related case

law were distributed to Defendants' staff in July 2004. Ex. B at 68:16 — 69:17 (Reporter's Transcript of 12/14/07 Hearing).

2. As illustrated in the examples below, these policies and procedures contain inaccurate statements concerning parolees' confrontation rights under the controlling law stated in Comito, 177 F.3d 1166. Ex. C (CDCR Resource Documents 1, 2, 3 ("RD")). For example, the "Hearsay" section of Resource Document 1 states that the Comito balancing test:

balances the parolee's right to confrontation against the use of the hearsay evidence.

Ex. C, RD1 p. 8. As will be discussed infra, the test balances "the releasee's interest in his constitutionally guaranteed right to confrontation against the Government's good cause for denying it." Comito, 177 F.3d at 1170. The same document describes a Deputy Commissioner's task as:

determining that the parolee's right to confront is outweighed by the trustworthiness of the evidence.

Ex. C, RD1 p. 8. While trustworthiness is a factor that can lessen the parolee's interest, under Comito, trustworthiness alone cannot completely outweigh that interest. See infra at ___. In Resource Document 2, a summary of the right to confront and cross-examine adverse witnesses indicates:

the [Deputy Commissioner] can deny the confrontation of an adverse witness if it is shown that the witness is unavailable for good cause, or determined to be either fearful or confidential.

Ex. C, RD2 p. 3. This omits any mention of the required assessment of the parolee's interest in confrontation and weighing it against the described good cause. A Resource Document 3 summary of the Comito balancing test reads:

[the test] balances the parolee's right to confrontation against the need for the evidence to the disposition of the case and the trustworthiness of the information.

Ex. C, RD3 p. 2. This is the converse of the preceding example; it describes the assessment of the confrontation interest, but omits the good cause assessment prong of the test.

In these policies and procedures, there also are repeated references to all relevant evidence, or all hearsay evidence, being admissible. See, e.g., Ex. C, RD1 pp. 2, 3, 4, 5, 12. While some references are accurately quoting statutes or regulations, the repeated references send a message contrary to the controlling law that some relevant or hearsay evidence should be excluded after conducting a balancing test.

3. Defendants assert that the distributed policies and procedures include guidelines and standards that comply with the mandate set forth in Paragraph 24 of the Permanent Injunction. Ex. B at 68:16 — 69:17. A review of those policies and procedures reveals that any guidelines and standards to be found therein are insufficiently detailed to provide the guidance contemplated by this Permanent Injunction requirement. Ex. C.

4. After the Ninth Circuit issued its opinion in United States v. Hall, 419 F.3d 980 (2005), Defendants informed Plaintiffs of their position that hearsay evidence that falls within a recognized hearsay exception may be admitted without applying the Comito balancing test. Ex. B at 6:25 — 8:20; Ex. A-Sealed at 1:7-12 (Reply Declaration of Ernest Galvan in Support of Plaintiffs' Motion to Enforce Paragraph 24 of the Valdivia Permanent Injunction).

5. The record indicates that Defendants have discussed changes to their policy concerning admission of hearsay exceptions but have not yet instructed their staff to admit proffered evidence under a hearsay exception without applying the Comito balancing test. Ex. 2 to Ex. F (Reply Declaration of Loren G. Stewart in Support of Plaintiffs' Motion to Enforce Paragraph 24 of the Valdivia Permanent Injunction); Ex. B at 8:24 — 9:5. In training in March and April 2007, Deputy Commissioners were told that Defendants were exploring the possibility of changing this practice, but to continue to apply the Comito balancing test at that time. Ex. 4 to Ex. A-Sealed at 46 (CDCR Valdivia Compliance Report 9/26/07). In a November 2006 Deputy Commissioner academy session, instructors mentioned hearsay exceptions but did not make any explicit link to any effect they may have on the Comito balancing test. Ex. D at 2:1-3 (Declaration of Loren G. Stewart in Support of Plaintiffs' Motion to Enforce Paragraph 24 of the Valdivia Permanent Injunction).

6. Only a small majority of experienced Deputy Commissioners are lawyers, as is only one of the recent hires. Ex. B at 81:1-21. Taken together, this means that a minority of the Deputy Commissioners currently serving are lawyers. While a background in law is not a requirement (see Morrissey v. Brewer, 408 U.S. 471, 489, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972)), there is no evidence in the record that the non-attorneys have any familiarity with evidentiary law apart from the training Defendants provide.

7. Training provided to Deputy Commissioners consists of three to three and one-half hours of instruction in an academy shortly after their hire. Ex. E (Board of Parole Hearings Deputy Commissioner Training 12/20/07); Ex. D at 1:22-25....