Valdivia v. Brown, CIV. S-94-671 LKK/GGH

JERRY VALDIVIA, ALFRED YANCY, and HOSSIE WELCH, on their own behalf and on behalf ofthe class of all persons similarly situated, Plaintiffs,

v.EDMUND G. BROWN, JR., Governor of the State of California, et al., Defendants.

NO. CIV. S-94-671 LKK/GGH

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

DATED: July 2, 2013

ORDER

In 1994, plaintiffs commenced this action, which challenged the constitutionality of California's then-existing parole revocation system. In 2011, California began enacting legislation, commonly known as "Realignment," that significantly altered the state's criminal justice system. The question before this court is whether, in light of Realignment, this lawsuit remains the proper vehicle for ensuring that parolees receive Constitutionally-guaranteed due process protections. Having carefully considered the question, the court concludes that this case became moot as of July1, 2013, when the new parole revocation system was scheduled to go fully into effect. Accordingly, for the reasons set forth below, the plaintiff class will be decertified and this matter dismissed.

I. BACKGROUND

A. History of the litigation

On May 2, 1994, plaintiffs filed the instant lawsuit, challenging California's parole revocation procedures under the Fourteenth Amendment. Plaintiffs' initial complaint alleged that "[t]he Defendants and by and through the Department of Corrections . . . continue a practice of revocation of parole and remand of parolees, in violation of law as alleged herein, which practice has been continuing for many years." (Complaint ¶ 48, ECF No. 1.) Class certification was sought on the grounds that "[i]n general, the common questions of law and fact involve the summary remand to prison of parolees without due consideration of the right to counsel and without due process of law, in violation of Gagnon v. Scarpelli, [411 U.S. 778 (1973)] and Morrissey v. Brewer, [408 U.S. 471 (1972)]." (Id. ¶ 58.)

On December 1, 1994, the court certified a plaintiff class consisting of California parolees (1) who are at large; (2) who are in custody as alleged parole violators awaiting revocation of their parole status; or (3) who are in custody having been found in violation of parole. (Order, ECF No. 76)

The parties engaged in discovery for several years thereafter. On June 13, 2002, the court granted partial summary judgment in favor of plaintiffs, finding that California's parole revocationhearing system failed to safeguard plaintiffs' procedural due process rights under Morrissey, 408 U.S. at 487-90, and Gagnon, 411 U.S. at 786. The court's order emphasized that, in order to ensure adequate due process, probable cause hearings must be both accurate and promptly-held. See Valdivia v. Davis, 206 F. Supp. 2d 1068 (E.D. Cal. 2002).

Four months later, the court ordered defendants to file a proposed remedial plan to address identified due process violations. The court also directed the parties to meet and confer so that defendants could adapt the proposed remedial plan into a proposed remedial order to be presented to the court. (Order, Oct. 18, 2002, ECF No. 742.)

After some delay, defendants filed a proposed remedial plan, to which plaintiffs objected. (ECF No. 784.) At the hearing on plaintiff's objections, defendants indicated "that they would appreciate guidance from the court on precisely what the Constitution requires with respect to the timing and substance of the preliminary parole revocation hearing." (Order at 3, July 23, 2003, ECF No. 796.) In a subsequent order, the court initially expressed its hesitation at so doing, in light of the principle that "due process is flexible and calls for such procedural protections as the particular situation demands." Morrissey, 408 U.S. at 481. Nevertheless, in order to facilitate the development of an adequate remedy, the court undertook 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 otherconstitutional deprivations, and advised as follows:

[A] period of ten days strikes a reasonable balance between inevitable administrative delays and the state's interest in conducting its parole system, on the one hand, and the liberty interests of parolees, on the other. I conclude that the Constitution simply does not tolerate the state's detaining parolees for over ten days, with all the attendant disruptions such detention entails, without affording a preliminary hearing to determine whether there is probable cause for the detention. (Id. at 13.)¹

The court then set forth the following minimum standards for probable cause hearings: that they be conducted by a neutral decisionmaker, that parolees have an opportunity to both present documentary evidence and witnesses, and to cross-examine adverse witnesses, and that the hearing's results be documented in a written report. Alternatively, defendants could hold a unified hearing that was sufficiently prompt and the content of which met the due process requirements for both probable cause and revocation hearings. (Id. at 15-16.)

Ultimately, the parties filed a stipulated order for permanentinjunctive relief, which the court entered. (Order, March 8, 2004 ("Injunction"), ECF No. 1034.) The parties to the Injunction were the previously-certified plaintiff class and "the [defendant] state officials responsible for the policies and procedures by which California conducts parole revocation proceedings." (Injunction ¶ 8.) All of these defendants were members of the state's executive branch. Critical provisions of the Injunction include:

1. Notice of charges and rights, to be served on parolees not later than three business days from the placement of a parole hold. (Injunction ¶ 11(b)(iii).)

2. Probable cause hearings, to be held no later than 10 business days after parolees are served notice of charges and rights. (Injunction ¶ 11(d).)

3. Appointment of counsel for all parolees at the beginning of the Return to Custody Assessment² stage of the revocation proceedings. (Injunction ¶ 11(b)(i).)

4. Expedited probable cause hearings, if appointed counsel makes a sufficient offer of proof of a complete defense to all parole violation charges. (Injunction ¶ 11(b)(i).)

5. The ability of parolees' counsel to subpoena and present witnesses and evidence to the same extent andunder the same terms as the state. (Injunction ¶ 21.)

6. Adequate allowance, at probable cause hearings, for parolees to present evidence to defend or mitigate against the charges and proposed disposition. Such evidence may be presented through documentary evidence or through the charged parolee's testimony, either or both of which may include hearsay testimony. (Injunction ¶ 22.)

7. Limitations on the use of hearsay evidence at hearing in light of parolees' confrontation rights, as provided for in United States v. Comito, 177 F.3d 1166 (9th Cir. 1999). (Injunction ¶ 24.)

8. Parole revocation hearings to be held no later than 35 calendar days from the date of placement of a parole hold. (Injunction ¶¶ 11(b)(iv), 23.)

The Injunction also addressed topics such as provision of assistance for parolees with communicative or cognitive impairments, training of appointed counsel, and the handling of confidential information. The Injunction does not specify an end date for court supervision, providing instead that "[t]he Court shall retain jurisdiction to enforce the terms of this Order. The Court shall have the power to enforce [these terms] through specific performance and all other remedies permitted by law or equity." (Injunction ¶ 28.)

Defendants subsequently moved, successfully, for the appointment of a Special Master, and on December 16, 2005, thecourt appointed Chase Riveland to that position. (ECF Nos. 1198, 1213, 1245.) The Special Master has subsequently filed thirteen reports with the court addressing implementation of the Valdivia Injunction, as well as the court's subsequent orders herein. (ECF Nos. 1302, 1335, 1388, 1479, 1483, 1539, 1570, 1585, 1647, 1730, 1750, 1783.)³

B. Proposition 9

On November 4, 2008, California voters passed Proposition 9, entitled "Victims' Bill of Rights Act of 2008: Marsy's Law." Proposition 9's amendments to the California Penal Code altered a number of the parameters for the parole revocation system that had been mandated by the Injunction. Plaintiffs moved to enjoin enforcement of portions of Penal Code § 3044 (enacted by Prop. 9) as conflicting with provisions of the Injunction; defendants cross-moved to modify the Injunction to conform to Proposition 9. Valdivia v. Schwarzenegger, 603 F. Supp. 2d 1275 (E.D. Cal. 2009). After hearing, the court denied defendants' motion, and granted plaintiffs' motion in substantial part. Id. On appeal, the Ninth Circuit held that the court had erred by failing to make an "express determination that any aspect of the California parole revocation procedures, as modified by Proposition 9, violated constitutional rights, or that the Injunction was necessary to remedy a constitutional violation . . . ." Valdivia v. Schwarzenegger, 599 F.3d 984, 995 (9th Cir. 2010). On remand, thecourt determined that the following aspects of Cal. Penal Code § 3044, as enacted by Section 5.3 of Proposition 9, were unconstitutional:

(1) Holding probable cause hearings no later than 15 days after the parolee's arrest for parole violations "did not guarantee a prompt probable cause hearing with all of the minimum process set forth in Morrisey." Valdivia v. Brown, No. S-94-671-LKK-GGH, 2012 WL 219342 at *6, 2012 U.S. Dist. LEXIS 8092 at *21 (E.D. Cal. Jan. 24, 2012).

(2) Providing parolees with counsel on a case-by-case basis, and even then, only for those parolees who were both indigent and "incapable of speaking effectively in [their] own defense," both "deprived [parolees] of the right to notice of the right to counsel" and failed, under Gagnon, to provide for "a presumptive right to counsel when the parolee makes a colorable claim

...