814 F.3d 1007
9th Cir.2016Background
- California voters amended parole authority via Prop. 89 (1988) transferring some final parole decisions from the Board to the Governor for murder inmates.
- Prop. 9 (2008) changed deferral periods for parole hearings and created a petition to advance (PTA) hearings, with Board discretion to grant or deny.
- Gilman and others sued under 42 U.S.C. § 1983, alleging Prop. 89 and Prop. 9 violated the Ex Post Facto Clause as applied to inmates sentenced before the propositions.
- The district court entered a partial injunction, restricting the Governor’s use of Prop. 89 and limiting Prop. 9 deferral effects; the court relied on Rutherford-related testimony.
- On appeal, the Ninth Circuit held Prop. 89 as applied did not violate the Ex Post Facto Clause, relying on Johnson v. Gomez; Prop. 9 required further as-applied scrutiny.
- The court reversed the district court’s injunctions and remanded for entry of judgment for the State, clarifying the proper standard and application.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does Prop. 89 violate Ex Post Facto as applied? | Gilman: retroactive shift of parole authority lengthens incarceration. | State: governor-review uses same criteria; not prolonging punishment for pre-1988 offenders. | No Ex Post Facto violation as applied to Prop. 89. |
| Does Prop. 9 create a significant risk of longer incarceration as applied? | PTA process and deferral periods lengthen confinement for class members. | PTA provides relief; statistical evidence insufficient to show significant risk. | Not shown on record that Prop. 9 as applied creates a significant risk. |
| Did the district court mishandle the PTA analysis on as-applied challenges? | PTA process ineffective and illusory for many inmates. | Board discretion and statutory framework permit proper PTAs; district court erred in substitution. | District court's PTA critique reversed; PTA properly evaluated under correct standard. |
| Was Johnson v. Gomez controlling for Prop. 89 analysis? | Prop. 89 could be used to lengthen terms via governor review. | Johnson supports transfer of decisionmaking and not a per se Ex Post Facto violation. | Johnson controls; Prop. 89 does not violate Ex Post Facto as applied. |
Key Cases Cited
- Garner v. Jones, 529 U.S. 244 (U.S. 2000) (significant risk standard for ex post facto; applicant must show risk in practice)
- Peugh v. United States, 133 S. Ct. 2072 (S. Ct. 2013) (standard for ex post facto: significant risk of longer punishment)
- Morales v. Department of Corrections, 514 U.S. 499 (S. Ct. 1995) (rejected mere conjectural risk; require real risk in context)
- Johnson v. Gomez, 92 F.3d 964 (9th Cir. 1996) (transfer of final parole authority does not per se violate Ex Post Facto)
- Swarthout v. Cooke, 562 U.S. 216 (S. Ct. 2011) (limits federal review of state parole decisions)