In re Mcghee
246 Cal. Rptr. 3d 834
| Cal. Ct. App. 5th | 2019Background
- Petitioner Tijue McGhee, serving an indeterminate term with a four-year primary burglary sentence, was found in 2015 guilty of possessing an inmate-made weapon and placed in SHU; department denied referral to parole board.
- Prop. 57 (art. I, § 32) (2016) added that any person convicted of a nonviolent felony shall be eligible for "parole consideration" after completing the full term of the primary offense and authorized the Department of Corrections and Rehabilitation (department) to adopt implementing regulations.
- The department adopted regulations (Cal. Code Regs., tit. 15, § 3492) creating a screening/referral process that bars referral of otherwise eligible inmates to the Board of Parole Hearings (board) if inmates meet any of eight misconduct-related disqualifying criteria (e.g., recent SHU term, serious rules violations).
- McGhee challenged the department’s refusal to refer him to the board; after administrative appeals were exhausted he petitioned for habeas corpus in the Court of Appeal.
- The court considered whether the department’s screening regulations are consistent with Prop. 57’s mandate that eligible nonviolent felony prisoners receive "parole consideration."
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether "parole consideration" under Prop. 57 requires review by the Board of Parole Hearings | McGhee: "Parole consideration" means consideration by the board; department cannot preclude board review | Department: The regulations create a two‑tier process; screening by department is part of "parole consideration" and preserves due consideration | Held: "Parole consideration" means consideration by the board; department may not categorically screen out and deny board referral |
| Whether § 3492 is consistent with § 32(a)(1) and thus a valid exercise of delegated rulemaking | McGhee: § 3492 conflicts with § 32(a)(1) and is invalid to the extent it prevents board review | Department: Regulations reasonably implement Prop. 57 and are necessary to protect public safety and allocate board resources | Held: § 3492 provisions that bar board referral are inconsistent with § 32(a)(1) and must be repealed as beyond delegated authority |
| Whether practical burdens or public‑safety concerns justify deference to the department's process | McGhee: Board can consider in‑prison conduct and protect public safety; workload concerns do not override constitutional text | Department: Eliminating screening will overwhelm board, harm public safety, and reduce parole grants | Held: Practical and safety concerns do not override the constitutional mandate; board must make suitability determinations and may adjust procedures/staffing |
| Whether ballot materials and existing law support department's interpretation | McGhee: Ballot materials and statutory/regulatory scheme indicate board is intended decisionmaker | Department: Implicit delegation and prior screening practices support department role | Held: Ballot pamphlet and statutory/regulatory context confirm voters intended board parole consideration, undermining department's interpretation |
Key Cases Cited
- In re Edwards, 26 Cal.App.5th 1181 (court struck down department regulation excluding indeterminate third-strikers from Prop. 57 parole consideration)
- In re Gadlin, 31 Cal.App.5th 784 (court invalidated regulation excluding registrable sex offenders serving for nonviolent felonies from Prop. 57 consideration)
- In re Lawrence, 44 Cal.4th 1181 (explains board’s role in conducting parole consideration hearings)
- People v. Valencia, 3 Cal.5th 347 (use ballot materials to ascertain voter intent for initiatives)
- Ontario Community Foundations, Inc. v. State Bd. of Equalization, 35 Cal.3d 811 (agency cannot promulgate regulations inconsistent with governing statute)