Thursday, April 3, 2008
Governor Has Absolute Immunity for Parole Review Decisions—Court
By SHERRI M. OKAMOTO, Staff Writer
The governor is entitled to absolute quasi-judicial immunity from liability for his reversal of a parole board’s grant of parole, even if he erroneously asserted authority to veto parole for an individual convicted of conspiracy to commit murder, the Ninth U.S. Circuit Court of Appeals held yesterday.
Affirming the district court’s denial of Donald A. Miller’s civil rights claim against former Gov. Gray Davis, the court found that Davis’ review of parole board decisions was judicial in nature, and that Davis was not in “clear absence of all jurisdiction” in reviewing the board decision regarding Miller.
Donald Miller was sentenced to a term of 25 years to life in prison for conspiracy to commit murder in 1980. The California Board of Prison Terms granted Miller’s third application for parole in 1999, which Davis reversed. The board granted Miller’s fourth parole petition a year later, but Davis again reversed the board’s decision.
In 2001, the Fourth District Court of Appeal vacated the the governor’s decision. Div. Two of that court held that the governor was not authorized to review parole decisions for inmates whose primary commitment offense was conspiracy to commit murder in In re Miller, E029404. The board then reaffirned its grant of parole, and Miller was released in 2002.
Miller filed a civil action against Davis in 2005, alleging Davis had wrongfully prolonged his incarceration.
U.S. District Judge Florence-Marie Cooper of the Central District of California dismissed Miller’s action. Although she found Davis lacked the authority to review Miller’s parole decision because Miller had been convicted of conpiracy to commit murder, she construed Davis’ review of the board’s decision as a “mistake of law,” and concluded that Davis was immune from civil liability.
Judge Stephen Reinhardt, citing Butz v. Economou, (1978) 438 U.S. 478, wrote on behalf of the Ninth Circuit that although Davis was “by definition as an elected official, not insulated from political influence, as Governor Davis’s almost uniform denials of parole amply demonstrate,” the governor’s review of parole decisions still shared enough characteristics with the judicial process to warrant absolute quasi-judicial immunity protection.
Reinhardt further explained that an official only loses his quasi-judicial immunity if he acts where he clearly lacked all subject matter jurisdiction.
Article V, Sec. 8 of the California Constitution and California Penal Code Sec. 3041.2, the judge wrote, permit the governor to review parole decisions for inmates sentenced to an indeterminate term upon conviction of murder. But the court held it was not clear, at least before the decision in Miller’s state case clarified the scope of these provisions, that the term “murder” did not encompass conspiracy to commit murder.
Because defendants convicted of conspitacy to commit murder are subject to the same punishment as defendants convicted of murder, Reinhardt reasoned, “the state of California clearly considers the culpability of individuals who conspire to commit murder on a par with that of individuals who actually carry out the deed themselves.”
Based upon the “close relationship” between these two offenses, Reinhardt concluded that Davis’ review of the board’s parole decision regarding Miller was not clearly outside the scope of his jurisdiction.
The court noted that In re Miller put the governor was on notice that he no longer has the authority to reverse parole decisions involving individuals convicted of conspiracy to commit murder. Had Davis acted after the decision in In re Miller, Reinhardt wrote, the governor would have acted in the clear absence of jurisdiction had he reviewed a parole decision in a conspiracy to commit murder case.
Miller’s attorney, Richard Hamlish, said that the court had drawn a “fine line” between the governor acting in excess of his jurisdiction or in clear absence of jurisdiction.
“There was no jurisdiction to begin with, so they couldn’t act in excess of jurisdiction…. The facts don’t show that [Davis] had any jursidction whatsoever. The Legislature and the California Constitution were clear.”
“The court agreed with everything else I argued, but for a few little things…. This is where we parted ways.”
Hamlish said his client will probably ask for a rehearing, but that they had not yet decided whether they would seek certiorari from the Supreme Court or a rehearing first.
Deputy Attorney General Thomas Patterson, who represented Davis, said:
“We’re pleased the Ninth Circuit said the governor can make parole decisions…without being threatened by civil litigation from inmates who dispute the governor’s decision that they’re not ready to be safely released back into society.”
Judge Dorothy W. Nelson and Senior U.S. District Judge Louis F. Oberdorfer of the District of Columbia, sitting by designation, joined Reinhardt in his opinion.
The case is Miller v. Davis, No. 06-55538.
Copyright 2008, Metropolitan News Company