THE PEOPLE, Plaintiff and Respondent, v. LAWRENCE J. RAMIREZ, Defendant and Appellant.
Crim. No. 20076
Supreme Court of California
Sept. 7, 1979.
25 Cal.3d 260
Rowan K. Klein, under appointment by the Supreme Court, for Defendant and Appellant.
Evelle J. Younger, Attorney General, Jack R. Winkler, Chief Assistant Attorney General, S. Clark Moore, Assistant Attorney General, Robert F. Katz and Stephen M. Kaufman, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MOSK, J.—In this case we review the scope of the due process clauses of the California Constitution. (
Appellant Lawrence J. Ramirez was convicted of second degree burglary in 1970 (
In 1974 appellant was granted outpatient status pursuant to
After a hearing on the propriety of the order excluding appellant from the CRC, the superior court held the Director did not abuse his discretion. Appellant‘s CRC commitment was subsequently terminated and criminal proceedings against him were resumed. In case No. A-254109 the court suspended imposition of sentence on the burglary conviction; it granted three years’ summary probation with six months in county jail as a condition thereof, and deemed the offense a misdemeanor pursuant to
This consolidated appeal is purportedly taken from the order excluding appellant from the CRC in case No. A-254109, and from the judgment and exclusion order in case No. A-419523. No appeal lies from the
Appellant contends the procedures used by the CRC in excluding him from its program denied him his constitutional right to procedural due process. We agree.
I
The initial question presented is whether the due process clauses of the California Constitution mandate that an individual be granted procedural protections prior to his exclusion from the CRC. (
In interpreting the federal clause, the Supreme Court has held that a prisoner may derive a due process liberty interest from either the Constitution or state law. (Meachum v. Fano (1976) 427 U.S. 215, 226.) When the asserted interest is derived exclusively from state law, it will be recognized as within the scope of due process liberty if the state statute protects the interest by permitting its forfeiture only on the happening of specified conditions. For example, in Wolff v. McDonnell (1974) 418 U.S. 539, the Supreme Court held that a prisoner‘s loss of “good-time credits“—a loss that could result in lengthening his incarceration—and his solitary confinement are within the scope of due process liberty when conditioned on the prisoner‘s serious misbehavior. And similarly, the Supreme Court concluded in Morrissey v. Brewer (1972) 408 U.S. 471, that the parolee acquires a protected liberty interest in his
By contrast, in cases in which a statute does not protect an interest by specifying that its loss is subject to the happening of some condition, a protected liberty interest is not created under federal law. Thus, in Meachum v. Fano, supra, 427 U.S. at pages 226-227, the Supreme Court held that a prisoner has no due process liberty interest when he is being transferred from one institution to another, despite any alleged hardship that might result, so long as the discretionary authority to make such transfers is not limited by statute and the transfer would not otherwise infringe upon a constitutional right. And in Montanye v. Haymes (1976) 427 U.S. 236, the same holding was applied even though the transfer was ordered for disciplinary purposes.
In the case before us,
Although we agree with this conclusion, the reasoning appears anomalous. Its effect is that as long as the interest is not one that would otherwise fall within the scope of constitutional concepts of liberty, the state may “define it out” of the due process clause by specifying that it is subject to the unconditional discretion of the person in charge of its administration; further, the state may apparently limit the scope of the clause in this manner irrespective of the extent to which “grievous loss” or “substantial adverse impact” results. (See Meachum v. Fano, supra, 427 U.S. at p. 224; Montanye v. Haymes, supra, 427 U.S. at p. 242.) The Supreme Court‘s doctrine has thus been criticized as ultimately leading to circular reasoning that contravenes the clause by leaving the state free to decide whether and to what extent procedures are to be followed in dealings with its citizens without regard to federal standards. (Comment, Entitlement, Enjoyment, and Due Process of Law (1974) Duke L.J. 89, 111; see also Saphire,
The foregoing analysis leads us to conclude that the federal approach for determining whether a due process liberty interest is at stake masks fundamental values that underlie the clause. Initially, the approach fails to give sufficient weight to the important due process value of promoting accuracy and reasonable predictability in governmental decision making when individuals are subject to deprivatory action. The Supreme Court itself has stated that “The touchstone of due process is protection of the individual against arbitrary action of government [citations].” (Wolff v. McDonnell (1974) supra, 418 U.S. at p. 558.) And, as one federal circuit court observed with respect to occupations controlled by government, “The public has the right to expect its officers . . . to make adjudications on the basis of merit. The first step toward insuring that these expectations are realized is to require adherence to the standards of due process; absolute and uncontrolled discretion invites abuse.” (Hornsby v. Allen (5th Cir. 1964) 326 F.2d 605, 610.) If minimizing such abuses of governmental discretion is to be a concern, it is misguided for courts to rest the applicability of the clause on whether or not the state limits administrative control over a statutory benefit or deprivation by the occurrence of specified conditions; instead, courts must evaluate the extent to which procedural protections can be tailored to promote more accurate and reliable administrative decisions in light of the governmental and private interests at stake.
The federal approach also undervalues the important due process interest in recognizing the dignity and worth of the individual by treating him as an equal, fully participating and responsible member of society. (See Karst, Supreme Court, 1976 Term—Foreword: Equal Citizenship Under the Fourteenth Amendment (1977) 91 Harv.L.Rev. 1, 5-11 [hereinafter cited as Karst, Equal Citizenship]; Mashaw, The Supreme Court‘s Due Process Calculus for Administrative Adjudication in Mathews v. Eldridge: Three Factors in Search of a Theory of Value (1976) 44 U.Chi.L.Rev. 28, 49-54; Saphire, Specifying Due Process Values (1978) supra, 127 U.Pa.L.Rev. 111, 143-151.) “For government to dispose of a
We therefore hold that the due process safeguards required for protection of an individual‘s statutory interests must be analyzed in the context of the principle that freedom from arbitrary adjudicative procedures is a substantive element of one‘s liberty. (See Van Alstyne, Cracks in the New Property (1977) supra, 62 Cornell L.Rev. at p. 487.) This approach presumes that when an individual is subjected to deprivatory governmental action, he always has a due process liberty interest both in fair and unprejudiced decision-making and in being treated with respect and dignity. Accordingly, it places front and center the issue of critical concern, i.e., what procedural protections are warranted in light of governmental and private interests.
In determining applicable due process safeguards, it must be remembered that “due process is flexible and calls for such procedural protections as the particular situation demands.” (Morrissey v. Brewer (1972) supra, 408 U.S. at p. 481.) For example, in Wolff v. McDonnell (1973) supra, 418 U.S. 539, the procedure held necessary to protect a prisoner‘s liberty interest in avoiding loss of good-time credits or solitary confinement was (1) advance written notice of the claimed violation, (2) a written record of the proceedings, including a statement by the factfinders as to the evidence relied on and the reasons for the disciplinary action taken, and (3) the right “to call witnesses and present documentary evidence in his defense when permitting him to do so will not be unduly hazardous to institutional safety or correctional goals.” (Id., at pp. 563-566.) By contrast, in Goss v. Lopez (1975) 419 U.S. 565, which involved the 10-day suspension of a child from school, only notice of the charge and a limited opportunity to respond were required. And in
These cases disclose that the extent to which due process relief will be available depends on a careful and clearly articulated balancing of the interests at stake in each context. In some instances this balancing may counsel formal hearing procedures that include the rights of confrontation and cross-examination, as well as a limited right to an attorney. (See, e.g., Morrissey v. Brewer, supra, 408 U.S. 471; In re Bye (1974) 12 Cal.3d 96.) In others, due process may require only that the administrative agency comply with the statutory limitations on its authority. (See, e.g., Cafeteria Workers v. McElroy, supra, 367 U.S. 886.) More specifically, identification of the dictates of due process generally requires consideration of (1) the private interest that will be affected by the official action, (2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards, (3) the dignitary interest in informing individuals of the nature, grounds and consequences of the action and in enabling them to present their side of the story before a responsible governmental official, and (4) the governmental interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. (See Civil Service Assn. v. City and County of San Francisco (1978) 22 Cal.3d 552, 561.)
II
In applying this analysis to the facts herein, we consider first the CRC patient-inmate‘s interests. Appellant contends that as a result of his exclusion from the CRC, he will (1) suffer the grievous loss of liberty
In re Bye (1974) supra, 12 Cal.3d 96, examined whether an outpatient at the CRC must be accorded the Morrissey procedural requirements when the Director revoked his outpatient status. The issue in Morrissey was the extent to which the due process clause entitled a parolee to procedural protections prior to the revocation of his parole. The United States Supreme Court, through Chief Justice Burger, characterized the parolee‘s interest as follows: “The liberty of a parolee enables him to do a wide range of things open to persons who have never been convicted of any crime. The parolee has been released from prison based on an evaluation that he shows reasonable promise of being able to return to society and function as a responsible, self-reliant person. Subject to the conditions of his parole, he can be gainfully employed and is free to be with family and friends and to form the other enduring attachments of normal life. Though the State properly subjects him to many restrictions not applicable to other citizens, his condition is very different from that of confinement in a prison. He may have been on parole for a number of years and may be living a relatively normal life at the time he is faced with revocation.” (Morrissey v. Brewer, supra, 408 U.S. at p. 482, fns. omitted.)
In Bye we recognized that the liberty interest of a CRC outpatient is similar to that of a parolee. (12 Cal.3d at pp. 101-102.) We therefore held that the outpatient was entitled to a Morrissey-type hearing before the CRC could revoke his outpatient status. (Id., at p. 110.)
In this case appellant does not claim he was denied his due process rights with respect to the revocation of his outpatient status.2 He argues
Again, in People v. Thomas, supra, 19 Cal.3d 630, we held that a person whom the state seeks to commit to CRC is entitled to the procedural due process safeguards of proof beyond a reasonable doubt and a unanimous jury verdict. Addressing specifically the nature of confinement in the CRC, we concluded that it resulted in a substantial loss of personal liberty: “Although the CRC is not among the facilities specifically listed as state prisons (
In sharp contrast to an outpatient or a parolee, therefore, a patient-inmate confined in the CRC cannot “do a wide range of things open to persons who have never been convicted of any crime.” (Morrissey v. Brewer (1972) supra, at p. 482 of 408 U.S.) It follows that the liberty interest that justified a Morrissey-type hearing in Bye does not exist in the present context.3
It is true, as appellant argues, that a patient-inmate has an important interest in receiving treatment at the CRC for his narcotics addiction. In examining this interest, however, we must recognize that by the time the patient-inmate is admitted to the CRC he has experienced the withdrawal process and his original physical addiction has subsided; the institution provides treatment to eliminate his psychological dependency on narcotics.4 While psychological counseling certainly is valuable to the patient-inmate because it increases the likelihood that he will not resume the use of narcotics, examination of the nature of the CRC program reveals important interests of the CRC and of other persons being treated that suggest elaborate procedural requirements would be inappropriate.
It is apparent, therefore, that central to an exclusion decision is the Director‘s evaluation of (1) the probabilities of an addict‘s success and (2) the effect of retaining the addict in the CRC on the successful treatment of others. This evaluation is inherently subjective and requires the Director‘s cumulative appraisal of a wide variety of considerations, such as the history of the patient-inmate, his responses to CRC treatment, psychiatric reports and whatever other factors might be deemed relevant.
In weighing the private interests of the person being excluded against the administrative needs of the CRC, it is important to recognize that this type of evaluation is not so readily adapted to procedural due process safeguards as are decisions that turn on specific factual questions (see Board of Curators, Univ. of Mo. v. Horowitz (1977) 435 U.S. 78, 90), such as whether a prisoner has violated a condition of his parole (Morrissey v. Brewer (1972) supra, 408 U.S. 471);
Before determining what safeguards are warranted in light of these interests, we examine the present procedure for exclusion from the CRC. The procedure includes a judicial hearing conducted by the superior court when it reassumes criminal jurisdiction. (
Thus in cases in which the Director‘s decision is based solely on incorrect considerations, subsequent judicial review by the trial court sufficiently protects due process interests in the promotion of accuracy and reliability of exclusion decisions: the court may send such cases back to the Director or reinstate the patient-inmate, whichever it deems more appropriate. If other, correct evidence supports the Director‘s decision, however, a deferential abuse-of-discretion standard may lead to affirmance even though the Director might not have reached the same conclusion if he had known certain asserted facts were incorrect. A similar problem exists with respect to the patient-inmate‘s interest in presenting his case for not being excluded: if his case were called to the attention of the Director prior to his reaching a final decision, he might
For the foregoing reasons, we conclude that the due process clause entitles the patient-inmate to an opportunity to respond to the grounds for the exclusion prior to the final exclusion decision. To make such an opportunity meaningful, the patient-inmate must be given a statement of those grounds, access to the information that the Director considered in reaching his decision,5 and notice of the right to respond. He also must be permitted to exercise his right to respond orally before a responsible official if he so chooses. Such oral participation may be useful in resolving conflicting information and in the introduction of subjective factors into the decision-making process that might otherwise not be considered; it thereby may often tend to enhance the accuracy and reliability of the exclusion decision. And even in cases in which such participation is unlikely to affect the outcome of the decision, it nevertheless promotes important dignitary values that underlie due process. Indeed, one commentator has stated that “Only through [oral] participation can the individual gain a meaningful understanding of what is happening to her, and why it is happening. Moreover, providing the opportunity to react—to register concern, dissatisfaction, and even frustration and despair—is the best method to promote the feeling that, notwithstanding the substantive result, one has been treated humanely and with dignity by one‘s government.” (Saphire, Specifying Due Process Values (1978) supra, 127 U.Pa.L.Rev. at pp. 164-165, fn. omitted.)
A more difficult question is whether confrontation, cross-examination, and other formal hearing rights must be provided. The principal value fostered by such rights in these circumstances is that of promoting accuracy and reliability in governmental decision-making. (See id., at p. 165.) As previously discussed, the Director‘s decision is evaluative in nature and based on his specialized subjective judgment; that judgment depends on consideration of a host of intangible factors rather than on the existence of particular and contestable facts. As a result, more formal procedures than those previously identified would not
Finally, appellant is entitled to a statement of the final decision and reasons therefor in writing. (See In re Sturm (1974) 11 Cal.3d 258, 268-270.) “Fundamental to the concept of procedural due process is the right to a reasoned explanation of government conduct that is contrary to the expectations the government has created by conferring a special status upon an individual. The very essence of arbitrariness is to have one‘s status redefined by the state without an adequate explanation of its reasons for doing so. . . . [T]he respect for individual autonomy that is at the foundation of procedural due process imposes a distinct obligation upon the government to explain fully its adverse status decision.” (Rabin, Job Security and Due Process: Monitoring Administrative Discretion Through a Reasons Requirement (1976) 44 U.Chi.L.Rev. 60, 77-78, fns. omitted.)
III
In the present case, appellant received very limited procedural protections. The CRC regulations require that “When a decision is made to recommend exclusion from the Civil Addict Program for nonamenability, the releasee will be given a copy of the exclusion letter prepared for the signature of the regional administrator and informed that he may appeal the recommendation by corresponding directly to the regional administrator within 10 days. The agent will note in his field book that the releasee was given a copy of the letter and informed of his right to appeal. . . .” (Dept. of Corrections Narcotic Addict Outpatient Program Manual, ch. III-21A.)
During the pendency of this appeal, appellant has completed service of both the probationary term and the term of imprisonment, and is no longer in custody under the judgments from which he appeals. Thus a remand with directions that he be recommitted to the CRC for a new exclusion hearing would be inappropriate. Nonetheless, because his improper exclusion from the CRC may have denied him a more favorable disposition of the criminal proceedings (
The order granting probation in case No. A-254109 and the judgment in case No. A-419523 are reversed.
Tobriner, J., and Manuel, J., concurred.
NEWMAN, J.—I concur in the reversal of the order and the judgment. Cf. my opinion (conc.) in People v. Arbuckle (1978) 22 Cal.3d 749, 757.
RICHARDSON, J.—I concur in the judgment. Because of the close similarity in the applicable United States and California constitutional language, and to avoid insulating our decision from further review, I
When a state creates or recognizes rights and specifies the conditions of their forfeiture, it may not thereafter arbitrarily deny such rights. The state action must be guided by due process considerations. (Meachum v. Fano (1976) 427 U.S. 215, 225-226; Wolff v. McDonnell (1974) 418 U.S. 539, 557-558; see Morrissey v. Brewer (1972) 408 U.S. 471, 479, 482.)
In my view, these authorities are dispositive, and we need not venture beyond them in deciding the instant case. Nor should we do so; recent Supreme Court decisions demonstrate understandable reluctance to recognize a generalized due process right against “arbitrary” governmental action. (See, e.g., Van Alstyne, Cracks in “The New Property“: Adjudicative Due Process in the Administrative State (1977) 62 Cornell L.Rev. 445, 455 et seq.)
Clark, J., concurred.
BIRD, C. J., Concurring and Dissenting.—I concur in the lead opinion‘s discussion of the scope of the due process clauses of the California Constitution and in the conclusion that those constitutional provisions
The lead opinion properly recognizes that a patient-inmate has an “important interest” in the medical and psychological treatment provided by the state at CRC. (Opn. of Mosk, J., ante, at p. 272.) According to Department of Corrections documents submitted to this court, treatment is provided in “a minimum security, open-dormitory institution,” which maintains “a therapeutic and educational climate.” The individual‘s confinement in CRC is likely to be measured in months, not the years common in state prison sentences.2 Hence, a decision to exclude an individual from CRC not only eliminates the availability of treatment and counseling but can result in confinement under more severe conditions in a state prison.
Our society has a significant interest in “promoting accuracy and reasonable predictability in governmental decision making . . . .” (Opn. of Mosk, J., ante, at p. 267.) Also, due process encompasses a concern for the dignity of the individual subjected to the state‘s power; part of that concept is the right to participate in a governmental adjudicatory process which significantly affects one‘s life. (See opn. of Mosk, J., ante, at pp. 267, 268.)
In the context of this case, these interests require that adequate notice and hearing be afforded to an individual who may be excluded from CRC. The lead opinion appears to echo that requirement. However, in failing to provide the panoply of rights normally incident to such hearings, the lead opinion ensures that the required notice and hearing formalities will be of little actual utility. Silent as to whether a patient-inmate has the right to present witnesses and documentary
Few rights are more fundamental than the right to present witnesses and documentary evidence in one‘s own behalf. (See Wolff v. McDonnell (1974) 418 U.S. 539, 566 and 583 (conc. and dis. opn, of Marshall, J.); Chambers v. Mississippi (1973) 410 U.S. 284, 294, 302; Goldberg v. Kelly (1970) 397 U.S. 254, 267-268.) In granting these rights, the state ensures that the decision-maker is forced to consider all relevant evidence, even that which by design or oversight might have otherwise been ignored. And if an individual‘s protestations are seen as self-serving or lacking in credibility, he can present a choir of disinterested, supportive witnesses who can help establish the facts.
Consider the prospects of a CRC patient-inmate subject to exclusion. It would appear that he has little chance of persuading CRC officials to reconsider their decision to exclude him if he cannot present witnesses and documentary evidence to support his contentions. Not only may witnesses be crucial to rebutting the factual foundation for exclusion, but they may bear witness to mitigating factors which justify reconsideration. Clearly, the patient-inmate‘s entitlement to such rights is both reasonable and unassailable. Yet, the lead opinion is silent as to any countervailing and paramount considerations justifying denial.
The right of cross-examination has been termed “‘the greatest legal engine ever invented for the discovery of truth.‘” (People v. Fries (1979) 24 Cal.3d 222, 231.) The United States Supreme Court has recently declared that “[c]ross-examination is the principal means by which the believeability of a witness and truth of his testimony are tested.” (Davis v. Alaska (1974) 415 U.S. 308, 316.) As a consequence, “[i]n almost every setting where important decisions turn on questions of fact, due process requires an opportunity to confront and cross-examine adverse witnesses.” (Goldberg v. Kelly, supra, 397 U.S. at p. 269
Notwithstanding such compelling authority, the lead opinion denies the patient-inmate any right of cross-examination because the decision to exclude is “evaluative in nature.” (Opn. by Mosk, J., ante, p. 275.)3 This explanation is unpersuasive. In excluding an individual from CRC, the state must determine whether the individual committed the alleged acts and, in light of his record, whether the conduct warrants his exclusion. The first finding is factual in nature. The fact that discretion is involved in the second finding has never before been the basis for removing procedural rights. Indeed, it is a concern with “minimizing . . . abuses of government discretion . . .” which prompted the lead opinion to adopt an expanded due process analysis. (Ante, p. 267.)
In Morrissey v. Brewer (1972) 408 U.S. 471, 480, the United States Supreme Court recognized that the “second step” in the parole revocation process involved decisions about the individual which were “predictive and discretionary,” i.e., should parole be revoked in light of the parolee‘s conduct. In its next term, that court recognized that a probation revocation decision also depended heavily upon a “professional evaluation” of the probationer. (Gagnon v. Scarpelli (1973) 411 U.S. 778, 784, fn. 8.) A similar professional judgment is required in the decision to revoke the outpatient status of an individual committed to CRC, the process considered by this court in In re Bye, supra, 12 Cal.3d 96. Yet, the evaluative nature of the decision in each case was not considered a bar to the right to present evidence and to cross-examine witnesses.
It cannot be denied that significant questions of a purely factual nature are involved in the decision to exclude. In the present case, CRC
The lead opinion fails to provide persuasive reasons for denying a patient-inmate the right to present witnesses and documentary evidence and to cross-examine adverse witnesses. Further, in failing to provide these fundamental rights, the lead opinion ignores important case law which has mandated one or both of these rights in analogous contexts as necessary components of due process. (See Morrissey v. Brewer, supra, 408 U.S. at p. 487 [parole revocation]; Gagnon v. Scarpelli, supra, 411 U.S. at p. 782 [probation revocation]; Wolff v. McDonnell, supra, 418 U.S. at p. 566 [prisoner subject to loss of good time credits or solitary confinement]; Wright v. Enomoto (N.D.Cal. 1976) 462 F.Supp. 397, 403-405, affd. 434 U.S. 1052 [prisoner subject to administrative segregation in maximum security housing]; In re Bye, supra, 12 Cal.3d at p. 110 [revocation of CRC outpatient status].) Thus, absent any countervailing considerations, it is clear that a CRC patient-inmate is entitled to call and to cross-examine witnesses at any hearing to exclude that individual from CRC.
Notes
Our holding today, of course, does not mean that a person challenging the revocation
of his outpatient status can be denied a Morrissey-type hearing on the ground that he has also been excluded from the CRC. Further, in cases in which a person chooses to challenge both his outpatient status revocation and his exclusion from the CRC, the CRC certainly may decide that administrative convenience warrants expanding the scope of the Morrissey-type hearing to dispose of the exclusion issue simultaneously. The Superintendent of CRC, in a letter dated January 27, 1978, stated “that the average time that a new resident spends in the institution is eight months.” A subsequent letter from the Director of Corrections, dated April 12, 1978, indicated that the “median stay in the institution is now seven months . . . .”