On April 7, 2005, a California state prisoner serving a life sentence with possibility of parole file a pro se lawsuit in the U.S. District Court for the Eastern District of California against members of the Board of Parole Hearings (formerly the Board of Prison Terms and Parole) and the governor of California, under 42 U.S.C. § 1983. The plaintiff asked the court for injunctive relief, alleging that the defendants maintained a review practices violated the Due Process Clause of the Fourteenth Amendment. Specifically, the plaintiff alleged that the defendants maintained a systematic pattern of denial of parole solely based on unchangeable factors, such as the offence and pre-imprisonment conduct.

The case then spent several years in discovery and motion practice. On June 2, 2008, the Magistrate Judge Gregory G. Hollows designated legal counsel for the plaintiff, who then filed Corrected Fourth Amended Complaint on January 29, 2009. The complaint contained eight named plaintiffs, but was filed as a class action seeking to represent all California prisoners serving life sentence with possibility of parole. On March 4, 2009, the Court (Judge Lawrence Karlton) granted class certification to the plaintiffs, defining the class as California state prisoners who: (i) have been sentenced to a term that includes life; (ii) are serving sentences that include the possibility of parole; (iii) are eligible for parole; and (iv) have been denied parole on one or more occasions. The defendants appealed the class certification to the Ninth Circuit Court of Appeals, which granted the petition to appeal on June 2, 2009.

The District Court started receiving motions to intervene. On October 15, 2009, the District Court (Judge Lawrence Karlton) granted the defendants' motion to stay proceedings pending interlocutory appeal in part. The proceedings were stayed only in relation to the pending motions to intervene, but denied in other respects without prejudice.

On February 4, 2010, the District Court (Judge Lawrence Karlton) denied the motion to dismiss as to the plaintiff's Ninth Cause of Action. With the separate order filed on the same day, the Court granted the plaintiffs' preliminary injunction as to Proposition 9 enjoining enforcement of Proposition 9 as to the named plaintiffs, as the plaintiffs showed the likelihood of success on the merits as to their Ex Post Facto challenge. The Court stated that the application of Proposition 9 will cause irreparable harm absent a preliminary injunction due to the changes the Proposition 9 made in relation to increase in minimum deferral periods, the Board of Parole Hearings discretion and increase in maximum deferral periods. The Court, however, dismissed the Substantive Due Process claim of the plaintiffs as to Proposition 9.

The defendants filed an interlocutory appeal as to preliminary injunction on March 3, 2010. They also filed a motion to stay enforcement of the preliminary injunction on March 5, 2010. On April 7, 2010, the District Court (Judge Lawrence Karlton) granted stay only in relation to one of the named plaintiffs, but the injunction remained in effect in relation to other named plaintiffs.

On June 3, 2010, the Ninth Circuit Court of Appeals affirmed the order granting class certification. In the meantime, the District Court received a lot of motions to intervene to be considered class members. On September 15, 2010, the District Court (Judge Lawrence Karlton) denied all the motions. The Court also kept receiving a number of motions for permissive joinder, all of which were denied by the Court.

On January 24, 2011, the Ninth Circuit Court of Appeals (Judge Carlos Bea) issued an order and opinion on the appeal as to preliminary injunction. The Court reversed the decision of the District Court, stating that the District Court abused its discretion and the plaintiffs did not establish that they are likely to succeed on the merits, as there was nothing on the facts in the record to infer that Proposition 9 created a significant risk of prolonging plaintiffs' incarceration. Gilman v. Schwarzenegger, 638 F.3d 1101, 1111 (9th Cir. 2010).

On April 25, 2010, the District Court (Judge Lawrence Karlton) issued an order amending the definitions of certified class. As to the Eighth Cause of Action, the class is defined all California state prisoners who have been sentenced to a life term with possibility of parole for an offense that occurred before November 4, 2008. As to the Ninth Cause of Action, the class is defined all California state prisoners who have been sentenced to a life term with possibility of parole for an offense that occurred before November 8, 1988.

The plaintiffs filed a motion for class-wide preliminary injunction in relation to the enforcement of Proposition 9 in violation of Ex Post Facto clause, on November 19, 2010. The plaintiffs relied on statistical data in support of granting the injunction. On August 31, 2011, the Court (Judge Lawrence Karlton) appointed a neutral statistical expert to analyze the data. Based on the analysis of the data, the expert could not conclude that there is likely to be a risk of prolonged incarceration under Proposition 9 procedures. The Court (Judge Lawrence Karlton) denied the motion for preliminary injunction on April 4, 2012.

On March 3, 2012, the defendants entered a motion for judgment on the pleadings. On May 30, 2012, the Court (Judge Lawrence Karlton) issued an order granting the motion in relation to three claims, as they challenged the substance of the parole decisions, including the complaint that the Board relies on static factors when making the decisions.

On September 7, 2012, the Court (Judge Lawrence Karlton) denied the plaintiffs' motion to file the Fifth Amended Complaint. It also granted the defendants' unopposed motion to de-certify classes for several causes of action. As a result, only the Ex Post Facto challenges to Proposition 9 and the Governor's powers remained as class actions.

On May 6, 2013, the Court (Judge Lawrence Karlton) denied the plaintiffs' motion for summary judgment and preliminary injunction as to remaining causes of action, as well as defendants' motion for summary judgment and motion to de-certify remaining classes.

Following a trial, the District Court (Judge Lawrence Karlton) issued an order that both Proposition 9 and Proposition 89 violated the Ex Post Facto rights of the class members, on February 28, 2014. The Court stated that there was sufficient evidence that Proposition 9's increase of deferral periods for parole hearing created a significant risk of imposing longer periods of incarceration on the class than was the case when the offence was committed. Furthermore, the advanced hearing proceedings available under Proposition 9 is not sufficient to protect against Ex Post Facto problems created by Proposition 9. The Court stated that, although Proposition 89 is neutral on its face allowing the Governor to reverse both grants and denials of parole, in practice it was used to tip the scales against parole grants. In effect, it denied the class members right to neutral interpretation of the rules, available prior to the new law. The Court, thus declared, both Proposition 9 and Proposition 89, as implemented, violated the ex post facto clauses. The Court also ordered injunctive relief, so that the Board of Parole Hearings is to apply California Penal Code to all members of the class as it existed prior to Proposition 9, and so that the Governor of California is to use the same standards as the Board of Parole Hearings when reviewing cases.

The defendants filed an appeal to the Ninth Circuit Court of Appeals on March 27, 2014, in relation to the final judgment and all interlocutory orders.

The plaintiffs filed a motion for attorney's fees on March 28, 2014. The court granted $34,201.56 in attorney's fees on Jul. 28, 2014.

The case was reassigned to Chief Judge Morrison C. England, Jr. on Feb. 22, 2016.

The Ninth Circuit reversed the district court's order on Feb. 22, 2016. The court first argued that "Proposition 89 remains only a transfer of decisionmaking power, which does not violate the Ex Post Facto Clause." 814 F.3d 1007. The court then argued that the district court erred in "basing its findings principally on speculation and inference" regarding Proposition 9. 814 F.3d 1007. The Ninth Circuit argued that the district court did not have enough evidence to support a finding that "an as-applied Ex Post Facto Clause violation...occurred" and that "proving a significant risk of prolonged incarceration in parole cases requires exacting evidence," a standard not met by "a decrease in the frequency of parole hearings—without more." 814 F.3d 1007.

In response, on May 9, 2017, the district court vacated its prior judgment, ordered a judgment be entered for the defendants, and ordered the case closed.

The case is closed.

Zhandos Kuderin - 04/20/2014
Virginia Weeks - 11/05/2017


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