California Juvenile Parolees Entitled to Two-Step Revocation Process; Case Settles

by John E. Dannenberg

The U.S. District Court for the Eastern District of California has held that the rights of California juvenile parolees were violated by the single-hearing revocation process used by the Juvenile Parole Board (JPB). Nevertheless, the court declined to require the initial revocation hearing to be held within ten days as it did for adult parole violators in Valdivia v. Davis, 206 F.Supp.2d 1068 (E.D. Cal. 2002). [See: PLN, Jan. 2003, p.16].

In Sept. 2006, L.H. and three other juveniles filed a class action complaint under 42 U.S.C. § 1983 and the Americans with Disabilities Act, 42 U.S.C. §§ 12101-12213, claiming that the JPB’s policies and practices denied them due process of law in the parole revocation process. Among other issues, they claimed that the JPB’s policy of not providing two hearings (a preliminary hearing and a revocation hearing) – and indeed, not even providing one hearing for up to 60 days – violated the seminal principles set forth by the Supreme Court in Morrissey v. Brewer, 408 U.S. 471 (1972), Gagnon v. Scarpelli, 411 U.S. 778 (1973) and Mathews v. Eldridge, 424 U.S. 319 (1976).

The JPB defended its parole revocation policies for California’s 2,300 juvenile parolees. It offered statements from two of its senior staff as to the agency’s procedures, and asked the court to take judicial notice. The court declined to do so because the two affiants had failed to demonstrate personal knowledge of the procedures, as was required to satisfy judicial notice standards. Regardless, the court accepted the parties’ representations that upon a “technical” parole violation (i.e., a rules violation rather than a new criminal act), the JPB’s regulations didn’t provide for a probable cause hearing. The JPB tried to excuse this deficiency by noting that when revocation hearings for technical violators were eventually held, 75% resulted in favorable outcomes for the parolee – e.g., to continue on parole.

For parolees charged with new crimes, in-custody detention pending revocation was automatic. The parolee was given a form to request a probable cause/detention hearing or to waive the hearing. If the form was not returned within five calendar days of arrest, the waiver was deemed automatic and there was no hearing whatsoever, even though the law stated one must take place within 60 days.

Both sides moved for summary judgment. The plaintiffs asked that preliminary hearings be conducted within 10 days following detention, as was required in Valdivia. The court initially noted the similarity between the issues raised in this action and those in Valdivia, and declared that case to be its baseline.

Next, the district court rejected the JPB’s attempt to limit the court’s jurisdiction based on the Prison Litigation Reform Act’s (PLRA) requirement that a prisoner’s complaint demonstrate an adverse impact on public safety or on the operation of the criminal justice system. The court held that the PLRA applies only to “civil action[s] with respect to prison conditions,” and that the instant complaint did not involve prison conditions.

Relying upon Morrissey, Gagnon and Eldridge, the court concluded that the Constitution requires a two-stage revocation process. The first is “at arrest and preliminary hearing” and the second is “when parole is formally revoked.” The court observed that the JPB’s policy of conducting revocation hearings as long as 60 days after detention far exceeded the 21 days set by the Ninth Circuit in Pierre v. Washington State Board of Prison Terms and Paroles, 699 F.2d 471 (9th Cir. 1983). The controlling touchstone of due process was the disruption of the parolee’s family relationships, education, job, etc. The district court found the JPB’s loose procedures violative of juvenile parolees’ rights, and held that such rights outweighed those of the public’s “social interest” in public safety.

Accordingly, on Sept. 19, 2007, the district court granted the plaintiffs’ motion for summary judgment as to a declaration that their due process rights had been violated by the JPB’s single-hearing revocation process. The court stopped short of requiring a firm minimum time limit in which to hold an initial revocation hearing, however, finding the plaintiffs had not demonstrated “that there is no genuine issue of material fact that the circumstances of juvenile parole revocation require that the probable cause determination be made within ten calendar days of the parolee being taken into custody.” The court termed such an order “premature” and denied summary judgment as to that claim. See: L.H. v. Schwarzenegger, 519 F.Supp.2d 1072 (E.D.Cal., 2007).

The case progressed on other contested issues, and on January 29, 2008 the court granted a preliminary injunction requiring the defendants to appoint counsel to represent all juvenile parolees during revocation hearings. See: L.H. v. Schwarzenegger, 2008 U.S. Dist. LEXIS 9632.

Rather than work cooperatively to resolve this litigation, the JPB decided to take an adversarial approach. State officials repeatedly frustrated the plaintiffs’ discovery requests, resulting in multiple motions to compel and for sanctions. On May 1, 2008 the district court granted fees and costs to plaintiffs’ counsel in the amount of $58,227.15 due to the JPB’s failure to fully and timely respond to discovery requests.

The district court also granted the plaintiffs’ motion for sanctions on May 14, 2008, noting that the PBJ’s continued delay in complying with discovery requests “has all the earmarks of purposeful foot dragging on discovery.” The court again awarded fees and costs. See: L.H. v. Schwarzenegger, 2008 U.S. Dist. LEXIS 86829.

Evidently realizing it was fighting a losing battle, state officials agreed to settle the case on June 4, 2008. The JPB will appoint attorneys for juvenile parole violators within eight business days and ensure that revocation hearings are held within 35 calendar days. Parole violators will be able to call witnesses, and accommodations will be made for parolees with mental or physical disabilities or who do not speak English. Standards will be developed for juvenile parole revocations.

Gov. Schwarzenegger’s office called the settlement, which took almost two years of litigation to achieve, “fair and equitable.”

The district court had appointed former Washington DOC Secretary Chase Riveland to serve as Special Master in this case; the plaintiffs were represented by the San Francisco-based Youth Law Center. See: L.H. v. Schwarzenegger, 519 F. Supp. 2d 1072 (E.D. Cal. 2007).

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