Valdivia v. SchwarzeneggerValdivia v. Schwarzenegger
Before: John T. Noonan, Michael Daly Hawkins and Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge Hawkins;
Partial Concurrence and Partial Dissent by Judge Noonan
Vickie P. Whitney, Office of the Attorney General of the State of California, Sacramento, California, and S. Anne
Loren G. Stewart and Ernest Galvan, Rosen, Bien & Galvan LLP, San Francisco, California; Geoffrey Holtz, Bingham McCutchen LLP, San Francisco, California, for the plaintiffs-appellees.
Kent S. Scheidegger, Criminal Justice Legal Foundation, Sacramento, California, for amici Criminal Justice Legal Foundation, Crime Victims United of California, and Senator George Runner.
Wendy Musell, Stewart & Musell, San Francisco, California, for amici The American Civil Liberties Union of Northern California, Legal Services for Prisoners and Children, The Justice Policy Institute, the National Council on Crime and Delinquency, The Sentencing Project, Hadar Aviram, W. David Ball, Sharon Dolovich, Malcolm M. Feeley, Michael Pinard, Jonathan Simon and Jeremy Travis.
OPINION
HAWKINS, Circuit Judge:
These consolidated appeals stem from the November 2003 Valdivia Permanent Injunction (the Injunction)—based on a stipulation between Jerry Valdivia (Valdivia) and a class of similarly situated California parolees1 (Plaintiffs), and Governor Arnold Schwarzenegger and the State of California (collectively the State)—prescribing procedurеs for parole
Bound by United States v. Comito, 177 F.3d 1166 (9th Cir. 1999), we affirm the March 2008 order. Because the March 2009 order made no express determination that any aspect of the California parole revocation procedures, as modified by Proposition 9, violated federal constitutional rights, nor any determination that the Injunction was necessary to remedy a constitutional violation, we vacate and remand the March 2009 order for the district court to make that determination and to reconcile the Injunction and Proposition 9.
Background Facts & Procedural History
In May 1994, Plaintiffs challenged the constitutionality of parole revocation procedures under the
In response to the parties attempts to clarify the Injunction in light of United States v. Hall, 419 F.3d 980 (9th Cir. 2005), and after additional briefing and a hearing, the Special Master recommendеd: (1) the State should be found in violation of the Injunction; (2) all hearsay is subject to Comito balancing—weighing the releasees interest in his constitutionally guaranteed right to confrontation against the Governments good cause for denying it, Comito, 177 F.3d at 1170; (3) hearsay exceptions do not eliminate having to engage in full Comito balancing; and (4) the State did not demonstrate compliance with paragraph 24 of the Injunction.2 In its March 2008 order, the district court fully adopted the Special Masters conclusions and recommendations. The State subsequently filed this timely appeal.
The March 2009 order
Following passage of Proposition 9, Plaintiffs moved the district court to enforce the Injunction and bar implementation of Proposition 9 due to its conflict with the Injunction. The State countered with a motion to modify the Injunction to conform to Proposition 9.
After oral argument, the district court issued its March 2009 order, granting, in part, Plaintiffs motion to enforce the Injunction, and denying the States motion to modify it. The district court found that while several provisions of Proposition 9 conflict with the Injunction, application of the Supremacy Clause meant the Injunction prevails over state law, to the extent of any conflict. Modification was also not warranted,
JURISDICTION
We have jurisdiction over the appeal of both orders pursuant to
Because the March 2008 order modifies an existing injunction, it is immediately appealable under
The March 2009 order is appealable, as both parties concede, under
STANDARD OF REVIEW
The district courts March 2008 order adopted the Special Masters report and recommendations in its entirety. The legal conclusions of a Special Master are reviewed de novo. See United States v. Clifford Matley Family Trust, 354 F.3d 1154, 1163 n.10 (9th Cir. 2004). Factual findings of a Special Master are entitled to deference and reviewed for clear error. See Labor/Cmty. Strategy Ctr. v. Los Angeles County Metro. Transit Auth., 263 F.3d 1041, 1049 (9th Cir. 2001).
[M]atters of discretion, such as evidentiary rulings and interpretations of the Federal Rules of Civil Procedure, are reviewed for abuse of discretion. Harman v. Apfel, 211 F.3d 1172, 1175 (9th Cir. 2000). Under this standard, a reviewing court cannot reverse absent a definite and firm conviction that the district court committed a clear error of judgment in the conclusion it reached upon a weighing of relevant factors. SEC v. Coldicutt, 258 F.3d 939, 941 (9th Cir. 2001). Motions for relief from judgment under
ANALYSIS
I. The March 2008 Order
The State argues the district court erred in applying the Comito test to parole revocation hearings via the March 2008 order. It contends any hearsay evidence falling under a tradi-
A. Nature of the confrontation rights of parolees
We begin by noting that parole revocation hearings are not part of a criminal prosecution and thus the full panoply of rights due a [criminal] defendant are not due a parolee. Morrissey, 408 U.S. at 480. Nonetheless, parolees are due certain minimum requirements of due process, including the right to confront witnesses. Id. at 488-89. These rights, however, are based in the Due Process Clause оf the
[1] In Comito, this court specified the test for the confrontation rights of parolees.3 [I]n determining whether the admis-
[2] Here, in the Injunction, the district court ordered the State to follow Comito and limit the use of hearsay evidence to the boundaries set by parolees confrontation rights. The Special Master, and in turn the district court, did not err in the determination that Comito balancing continues to be the test in the Ninth Circuit, and that even if hearsay falls within a recognized exception, it is still subject to Comito balancing.
B. United States v. Hall
In Hall, the parolee was faced with hearsay evidence from a non-available declarant. After [b]alancing the Comito factors, the court found that the parolee had little interest in confrontation . . . because [the declarants out-of-court statements] w[ere] insignificant to the ultimate finding[,] and were outweighed by the governments substantial showing of good cause for failing to produce the declarant at the hearing. Hall, 419 F.3d at 989. While the hearsay exception evidence lessened the importance of [the declarants out-of-court statements] to the courts ultimate finding, and rendered harmless any error in admitting those out of court statements, id. at 986 & n.5, the failure to produce the declarant remained subject to analysis of the Governments good cause explanation, and to full Comito balancing.
C. Hearsay exceptions and Comito balancing
[4] Because the Federal Rules of Evidence do not apply to рarole revocation hearings, see Walker, 117 F.3d at 420, evidence falling within enumerated hearsay exceptions is subject to Comito balancing. While, in general, hearsay exception evidence is admissible at trial because of assurances of reliability,5 reliability or trustworthiness is included in the Comito right to confrontation analysis: less reliable hearsay can contribute to more weight placed on a parolees right to confrontation over the governments good cause. Comito, 177 F.3d at 1171-72 (Because the hearsay evidence was important to the courts finding, and because it involved the least reliable form of hearsay, Comitos interest in asserting his right to confrontation is at its apogee.). Reliability does not result in automatic admissibility: Simply because hearsay evidence bears some indicia of reliability does not render it admissible. Hall, 419 F.3d at 988. Therefore, evidence falling under a hearsay exception does not circumvent the Comito balancing test. It remains a part of it as an indicia of reliability, and subject to good cause analysis.
[5] The Comito test does not elevate the due process rights of parolees to those of criminal defendants. Criminal defendants have trial rights, including a jury trial, proof beyond a reasonable doubt, application of the applicable rules of evidence, and
[6] The dissent is concerned that the admission of hearsay exception evidence against a criminal defendant is a foregone conclusion while such evidence would be admissible in a parole revocation hearing once it is subject to a showing of good cause. Dissenting Op., at 4841. Hearsay evidence that is testimonial in nature, however, regardless of any exceptions, is inadmissible against a criminal defendant under Crawford. However, both testimonial and non-testimonial hearsay are admissible against a parolee, provided the hearsay fulfills Comito balancing. Moreover, the admission of hearsay evidence falling within аn exception against a criminal defendant is not a foregone conclusion; all hearsay evidence is subject to
Raising an argument neither party raised in this appeal, the dissent also contends we have failed to define hearsay. See Dissenting Op., at 4840-41. California parole revocation pro-
[7] The district court, therefore, did not err in subjecting the States parole revocation hearings to the Comito balancing requirements.6 Comito balancing remains the framework for confrontation rights in parole revocation hearings, and does not elevate the due process rights of parolees over those of criminal defendants.
E. Corroborating hearsay with hearsay
The Special Master recommended, and the district court adopted the ruling, that [h]earsay cannot be used to corroborate proffered hearsay unless it, too, survives a Comito balancing test. The district court did not err in this determination.
[8] Neither Comito nor Hall offer a clear rule on whether
We affirm, therefore, not because Hall and Comito hold that on balance . . . these courts expect corroboration to come from competent evidеnce, but because of the Supreme Courts description in Morrissey of the due process rights of parolees.
[9] The basic question we face here is whether the government should be required to provide good cause for the absence of the declarant in the underlying hearsay statement that it seeks to use as an indicia of reliability. To satisfy due process, Morrissey requires the State to demonstrate good cause. The Court in Morrissey considered the rights described in its opinion to be a floor—the basic, minimal rights afforded to parolees by due process. Morrissey, 408 U.S. at 488-89 (Our task is limited to deciding the minimum requirements of due process.). Among these rights is the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation). Id. at 489. The good cause balancing of Comito for all hearsay fits comfortably with Morrisseys basic minimum due process guarantees for parolees. Admitting hearsay without the good cause analysis does not.
The dissents concern that we have exceeded Morrisseys minimum requirements, 408 U.S. at 488-89, see Dissenting
Under Morrissey, every releasee is guaranteed the right to confront and cross-examine adverse witnesses at a revocation hearing, unless the government shows good cause for not producing the witness. This right to confrontation ensures that a finding of a supervised release violation will be based on verified facts. Accordingly, in determining whether the admission of hearsay evidence violates the releasees right to confrontation in a particular case, the court must weigh the releasees interest in his constitutionally guaranteed right to confrontation against the Governments good cause for denying it.
177 F.3d at 1170 (internal citations omitted). While Comito could be construed as going beyond the minimal requirements espoused in Morrissey, we are not bound to adhere only to minimal requirements; Comito is not inconsistent with those requirements, and no intervening precedent has arisen since Comito, either in our circuit or in the Supreme Court, to suggest otherwise.7
[10] In addition, allowing hearsay that does not pass Comito balancing to be considered in the determination of a statements reliability seems contrary to this Circuits holding in Hall. Hall did say that long-standing exceptions to the hearsay rule that meet more demanding requirements for criminal prosecutions should satisfy the lesser standard of due process accorded the respondent in a revocation hearing. Hall, 419 F.3d at 987 (emphasis added). Should satisfy, however, does
The State argues that subjecting all hearsay to this balancing test is too arduous a burden, eliminating the flexibility Morrissey, id., seems to embrace. Comito itself, however, allows for the admission of testimonial evidence not normally admissible in criminal trials. While Crawford restricts the use of certain unauthenticated evidence, Crawford, 541 U.S. at 61, in a parole revocation hearing, under the Comito balancing test, testimonial hearsay evidence is admissible against a parolee without the testimony of a declarant, provided the government demonstrates the requisite good cause for its inability to produce the declarant.
[11] Therefore, subjecting underlying hearsay to the Comito balancing test conforms with Morrissey and our precedent, and the district court did not err in adopting this recommendation of the Special Master on this record.
F. Morrissey and Other Obligations Imposed on the State
Other obligations imposed on the State by the March 2008 order, including professional training for Deputy Commissioners, do not contravene the Supreme Courts determination that a hearing body need not necessarily be composed of judicial officers or lawyers. Morrissey, 408 U.S. at 486. Nor does
The March 2008 order not only encourages the neutral, detached behavior envisioned by Morrissey, but also increases the experience and training of the officers. Nor does it mandate an entire body filled with judicial officers or lawyers, which was the Courts fear in Morrissey. Id. at 486 (The independent officer need not be a judicial officer.) (emphasis added).
[12] While the State was not found to have violated the Injunction, the Special Master found that the State had not fully complied with its requirements. Where the state has not fully complied with the courts еarlier orders, the district court has ample authority to go beyond earlier orders. Hutto v. Finney, 437 U.S. 678, 687 (1978); see also Toussaint v. McCarthy, 801 F.2d 1080, 1087 (9th Cir. 1986) (a federal court must order effective relief and a defendants history of noncompliance with prior orders is a relevant factor in determining the necessary scope of an effective remedy). Here, in implementing a disciplinary system, the district court was merely attempting to ensure compliance with the Injunction and was therefore not limited by its earlier orders. The obligations imposed by the district court here, therefore, do not constitute error in contravention of court precedent.
G. Dismissal of the States Objections
[13] The district court did not err in dismissing the States objections to the evidence presented in the Special Masters report. While the State has argued several potentiаl evidentiary errors in its briefs, we address here only those for which the State has provided support as opposed to mere conjecture.
[14] Evidentiary rulings are reviewed for abuse of discretion, and should not be reversed unless, more probably than
The Speсial Master did not use judicial notice to bypass the process of authenticating documents on which he relied. Transcripts were submitted as evidence, but the original tapes remained in the States custody. For the State to challenge the authenticity of transcripts to which they have the original tapes defeats the purpose of the evidentiary rule. Plaintiffs attempted to obtain the tapes from the State; when they were declined, they resorted to transcripts.8 Plaintiffs were not required to submit the originals for authentication in court, and the State never challenged their authenticity in court, rendering judicial notice possible.9
Judicial notice is used to supplant authentication of adjudicative facts—simply the facts of the particular case.
Additionally, the Special Masters findings were based not on inadmissible hearsay, but rather on observations by employees and observers, statements based in personal knowledge that were not out-of-court statements. For these reasons, we affirm the district courts March 2008 order adopting the Special Masters report and recommendations.
II. The March 2009 Order
The district court, in its March 2009 order, denied modification of the Injunction to conform with Californias Proposition 9. While the court correctly found the State had not met its burden to show a significant change in circumstances normally necessary for modification under Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 384 (1992), such a showing may not have been necessary in light of federalism principles. The district court made no express determination that the Injunctions procedures were necessary to remedy federal constitutional violations, and did not expressly find any aspect of the California parole revocation procedures, as modified by Proposition 9, in violation of basic constitutional rights.
[15] A district court may refuse to modify a federal injunction in light оf a given state law where such a law violates federal law. See Clark v. Coye, 60 F.3d 600, 605 (9th Cir. 1995). However, merely finding that a state law conflicts with a federal injunction, such as the court found here, is insufficient to deny modification of the injunction, and clearly constitute[s] an abuse of discretion. Id. (In the case before us,
Further, while the Injunction was put in place to remedy claimed constitutional violations, it is not clear that these procedures were required to remedy the violation of basic constitutional rights. The district court made this clear in the hearing prior to issuing the March 2009 order:
[I]n this case I never found any of the things that now everybody is concerned about, whether they were consistent with the Constitution of the United States or not. . . . . What I found was that the parties had agreed to get rid of this lawsuit. There clearly were some procedures which were violative of the Federal Constitution, and they said, Look, were going to solve this whole problem, and we, the plaintiffs, will give away some of our constitutional rights in order to gain these other rights. . . . . It isnt really true that this Court made a determination that these specific procedures were required by the Federal Constitution. The Court said, You guys are happy, Im happy.
While these procedures were put in place in an attempt to remedy a claimed constitutional violation, they were not necessary or required by the Constitution. Therе is no indication anywhere in the record that these particular procedures are necessary for the assurance of the due process rights of parolees.
[16] This circuits law is clear: unless a state law is found to violate a federal law, or unless the Injunction is found necessary to remedy a constitutional violation, federalism principles require the reconciliation of the state law and federal
CONCLUSION
We affirm the district courts March 2008 order, as we are bound by Comito. Because the district court made no express determination that any aspect of the California parole revocation procedures, as modified by Proposition 9, violated constitutional rights, or that the Injunction was necessary to remedy a constitutional violation, we vacate and remand the March 2009 order for the district court to make that determination and reconcile the Injunction with California law as expressed in Proposition 9.
AFFIRMED IN PART; VACATED AND REMANDED IN PART.
Each party to bear its own costs on appeal.
NOONAN, Circuit Judge, concurring and dissenting:
I concur in Part II of the majoritys opinion. A federal court cannot disregard or encroach on state prerogatives unless it must do so to vindicate federal law or the Constitution. For this same reason, however, I dissent from the majoritys analysis in Part I. Hearsay evidence that falls within a firmly rooted hearsay exception does not offend any federal right
I.
In hearings on the revocation of parole, Morrissey instructs that the minimum requirements of due process include the right to confront and cross-examine adverse witnesses. 408 U.S. at 488-89. This right to confrontation is applied through the Due Process Clause of the
We have allowed the admission of statements falling within a firmly rooted hearsay exception since the Courts recognition in Mattox v. United States, 156 U.S. 237 (1895), that the Framers of the
Sixth Amendment obviously intended to . . . respec[t] certain unquestionable rules of evidence in drafting the Confrontation Clause. Justice Brown, writing for the Court in that case, did not question the wisdom of excluding deposition testimony, ex parte affidavits and their equivalents. But he reasoned that an unduly strict and technical reading of the Clausewould have the effect of excluding other hearsay evidence, such as dying declarations, whose admissibility neither the Framers nor anyone else 100 years later would have [had] the hardihood . . . to question.
Lilly v. Virginia, 527 U.S. 116, 125-26 (1999) (citations omitted) (alterations and ellipses in original); see Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2539 (2009) (observing that most hearsay exceptions do not implicate a criminal defendants right to confrontation because they cover[] statements that by their nature [are] not testimonial—for example, business records or statements in furtherance of a conspiracy (quoting Crawford v. Washington, 541 U.S. 36, 56 (2004))).
By requiring Comito balancing where no federal confrontation right is infringed, the majority recedes from the principles of federalism espoused in Part II of its opinion. It imposes on the state a procedure crаfted by the Ninth Circuit that has heretofore applied only to the revocation of federal supervised release or probation, not the revocation of state parole. See Hall, 419 F.3d at 982; Comito, 177 F.3d at 1167; United States v. Walker, 117 F.3d 417, 418-19 (9th Cir. 1997); United States v. Martin, 984 F.2d 308, 309 (9th Cir. 1993); Simmons, 812 F.2d at 562-63.
The majority requires this procedure whenever the state relies on hearsay evidence, yet its opinion does not purport to define this now critical term. In the federal system, the term hearsay expressly excludes, inter alia, statements by coconspirators or admissions by a party to the proceeding. See
By demanding that the state establish good cause to rely on business records, excited utterances, and the like, the majority expands the confrontation rights of parolees beyond those held by criminal defendants. Contra id. at 489; Simmons, 812 F.2d at 564. The majority attempts to justify this expansion by noting that—unlike in criminal trials—the state can always trump parolees confrontation rights, even if no firmly rooted hearsay exception applies. See Maj. Op. 4829. But it is quite likely that most hearsay evidence offered in parole hearings will fall under some firmly rooted hearsay exception. See generally, e.g., United States v. Wake, 948 F.2d 1422, 1435 (5th Cir. 1991) ([T]here are, needless to say, numerous exceptions to hearsay nоt being admissible.). As a matter of constitutional law, the majority equips parolees to exclude such evidence if the state cannot demonstrate good cause, yet the admissibility of this same evidence against criminal defendants is a foregone conclusion.11
The majority braces its holding by noting that parolees will still lack many of the other rights enjoyed by criminal defendants, such as the right to a jury and proof beyond a reasonable doubt. See Maj. Op. 4920. But this rationale is foreign to our jurisprudence. We cannot retool discrete constitutional
The majority asserts that its decision is compelled by the law of this circuit, rejecting the Second Circuits contrary views in a footnote. Maj. Op. 4826; id. at 4828 n.4. Yet our prior caselaw involved federal probationers challenging evidence that would be inadmissable against criminal defendants. These precedents do not dictate our decision in a case involving state parolees disputing evidence whose admissibility neither the Framers nor anyone else 100 years later would have [had] the hardihood . . . to question. Lilly, 527 U.S. at 126 (alteration and ellipses in original).
Furthermore, our most recent decision in Hall strongly supports the approach taken by the Second Circuit. Comрare United States v. Aspinall, 389 F.3d 332, 344 (2d Cir. 2004) ([T]he [due-process] balancing analysis need not be made where the proffered out-of-court statement is admissible under an established exception to the hearsay rule.), with Hall, 419 F.3d at 987 ([L]ong-standing exceptions to the hearsay rule . . . should satisfy the lesser standard of due process accorded the respondent in a revocation proceeding.). Indeed, the Hall court favorably cited the same line of Second Circuit precedents that the majority today rejects out of hand. See Hall, 419 F.3d at 986 (citing Aspinall, 389 F.3d at 342). The majoritys headlong decision to create a circuit split is both unpersuasive and unnecessary.
II.
To apply its prescribed balancing test, the Comito court instructed decisionmakers to consider the accuracy and reli-
It is well-established, moreover, that trial judges may routinely consider inadmissible evidence to evaluate the competence of evidence actually proffered for admission. See, e.g.,