Lead Opinion
Opinion by Judge HAWKINS; Partial Concurrence and Partial Dissent by Judge NOONAN.
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 parolees
Background Facts & Procedural History
In May 1994, Plaintiffs challenged the constitutionality of parole revocation procedures under the Fourteenth Amendment’s right to due process, as defined in Morrissey v. Brewer,
The March 2008 order
In response to the parties’ attempts to clarify the Injunction in light of United States v. Hall,
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 State’s 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, according to the district court, because Proposition 9 did not constitute a change in applicable law or facts. The court did not reach whether Proposition 9 violates the U.S. Constitution. The State then filed this timely appeal of the March 2009 order, and the two appeals were consolidated.
JURISDICTION
We have jurisdiction over the appeal of both orders pursuant to 28 U.S.C. § 1292(a)(1).
The March 2009 order is appealable, as both parties concede, under 28 U.S.C. § 1292(a)(1), as the State is appealing an order refusing to modify an injunction.
STANDARD OF REVIEW
The district court’s March 2008 order adopted the Special Master’s report and recommendations in its entirety. The legal conclusions of a Special Master are reviewed de novo. See United States v. Clifford Motley Family Trust,
“[Mjatters of discretion,” such as evidentiary rulings and interpretations of the Federal Rules of Civil Procedure, are reviewed for abuse of discretion. Harman v. Apfel,
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 traditional or long-standing exception ought not to be subject to the Comito balancing test, based on this court’s holding in Hall,
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. Mortissey,
In Comito, this court specified the test for the confrontation rights of parolees. “[I]n determining whether the admission of hearsay evidence violates the releasee’s right to confrontation in a particular case, the court must weigh the releasee’s interest in his constitutionally guaranteed right to confrontation against the Government’s good cause for denying it.”
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 “[balancing the Comito factors,” the court found that the parolee had “little interest in confrontation ... because [the declarant’s out-of-court statements] w[ere] insignificant to the ultimate finding[,]” and were “outweighed by the government’s substantial showing of good cause” for failing to produce the declarant at the hearing. Hall,
The application of a balancing test to the admission of hearsay evidence in parole revocation hearings is not an open question in this circuit.
C. Hearsay exceptions and Comito balancing
Because the Federal Rules of Evidence do not apply to parole revocation hearings, see Walker,
D. Due process rights of parolees
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 Sixth Amendment confrontation rights. Even testimonial hearsay that falls under a “firmly rooted hearsay exception” or bears “particularized guarantees of trustworthiness” may not be admitted against a defendant without confrontation or cross-examination. Crawford,
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 997. 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-
Raising an argument neither party raised in this appeal, the dissent also contends we have failed to define hearsay. See Dissenting Op., at 997. California parole revocation proceedings, however, are governed by state law whose hearsay definitions would apply. Contrary to the dissent’s characterization, we are not “mandating” applicable hearsay law, or attempting to redefine it, see Dissenting Op., at 997, but merely ensuring that state procedures comport with federal due process per the law of this circuit.
The district court, therefore, did not err in subjecting the State’s parole revocation hearings to the Comito balancing requirements.
E. Corroborating hearsay with hearsay
The Special Master recommended, and the district court adopted the ruling, that “[hjearsay cannot be used to corroborate proffered hearsay unless it, too, survives a Comito balancing test.” The district court did not err in this determination.
Neither Comito nor Hall offer a clear rule on whether other hearsay evidence can be used to corroborate or support the reliability of proffered hearsay in a parole revocation hearing without being subject to a balancing test. The court in Comito specifically declined to consider the admissibility of the underlying hearsay.
We affirm, therefore, not because Hall and Comito hold that “on balance ... these courts expect corroboration to come
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,
The dissent’s concern that we have exceeded Morrissey’s “minimum requirements,”
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 releasee’s right to confrontation in a particular case, the court must weigh the releasee’s interest in his constitutionally guaranteed right to confrontation against the Government’s good cause for denying it.
In addition, allowing hearsay that does not pass Comito balancing to be considered in the determination of a statement’s reliability seems contrary to this Circuit’s holding in Hall. Hall did say that “longstanding 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,
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,
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 Court’s determination that a hearing body need not necessarily be composed of judicial officers or lawyers. Morrissey,
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 Court’s fear in Morrissey. Id. at 486,
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 court’s earlier orders,” the district court has “ample authority to go beyond earlier orders.” Hutto v. Finney,
G. Dismissal of the State’s Objections
The district court did not err in dismissing the State’s objections to the evidence presented in the Special Master’s report. While the State has argued several potential evidentiary errors in its briefs, we address here only those for which the State has provided support as opposed to mere conjecture.
Evidentiary rulings are reviewed for abuse of discretion, and should not be reversed unless, more probably than not, the error tainted the outcome. Harman,
The Special 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 State’s 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.
Judicial notice is used to supplant authentication of “adjudicative facts”' — '“simply the facts of the particular case.” Fed. R.Evid. 201, Advisory Committee Notes. Stated another way, “the adjudicative facts are those to which the law is applied in the process of adjudication. They are the facts that normally go to the jury. They relate to the parties, their activities, their properties, their businesses.” Id. (citations omitted). The authenticity of these transcripts was not challenged by either party. Thus judicial notice was proper, and the Special Master correctly admitted and relied upon the transcripts.
Additionally, the Special Master’s 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 court’s March 2008 order adopting the Special Master’s report and recommendations.
II. The March 2009 Order
The district court, in its March 2009 order, denied modification of the Injunction to conform with California’s 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,
A district court may refuse to modify a federal injunction in light of a given state law where such a law violates federal law. See Clark v. Coye,
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 dearly were some procedures ivhich were violative of the Federal Constitution, and they said, “Look, we’re 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 isn’t 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, I’m 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. There is no indication anywhere in the record that these particular procedures are necessary for the assurance of the due process rights of parolees.
This circuit’s 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 injunctions. See Keith v. Volpe,
CONCLUSION
We affirm the district court’s 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.
Notes
. More specifically, the Plaintiff class consists of: "(1) California parolees at large; (2) California parolees in custody as alleged parole violators, and who are awaiting revocation of their state parole; and (3) California parolees who are in custody having been found in violation of parole and who have been thereupon sentenced to prison custody.”
. Paragraph 24 of the Injunction states: “The use of hearsay evidence shall be limited by the parolees’ confrontation rights in the manner set forth under controlling law as currently stated in United States v. Comito,
. Our dissenting colleague takes issue with our use of Comito balancing "where no federal confrontation right is infringed,” and where the Supreme Court has found that most hearsay exceptions do not implicate the Confrontation Clause of the Sixth Amendment. Dissenting Op. at 996. But we are not faced here with applications of the Sixth Amendment Confrontation Clause to parole revocation hearings, rather, the right to confrontation as espoused by Fourteenth Amendment due process, and its articulation in Morrissey by the Supreme Court, and in Hall and Comito in our circuit. There is therefore a federal confrontation right at issue here, one that is rooted in due process rather than the Sixth Amendment.
. We are aware of the Second Circuit’s contrary holding. See United States v. Williams,
. See Fed.R.Evid. 803, Advisory Committee Notes ("The present rule proceeds upon the theory that under appropriate circumstances a hearsay statement may possess circumstantial guarantees of trustworthiness sufficient to justify nonproduction of the declarant in person at the trial even though he may be available.”).
. The dissent finds that our upholding the application of Comito balancing to these state parole hearings is a violation of principles of federalism, as no Ninth Circuit cases have previously applied such a procedure to state procedures, but rather only to federal supervised release or probation. See Dissenting Op. at 996-97. However, the Supreme Court’s ruling in Morrissey, and this court in Comito, imposed “certain minimum due process requirements” for parole revocation, revocation of probation, and revocation of supervised release, necessary to protect a parolee's constitutional right to confrontation. Comito,
. The dissent suggests our excerpting of Comito here to be ''inapposite” because "the hearsay at issue was actually admitted against the parolee as evidence.” See Dissenting Op. at 998 (emphasis in original). However, in both Hall and Comito, the hearsay was admitted after application of the Comito balancing test.
. Under Fed.R.Evid. R. 1004(3), the party is not required to present the original in court (here, the recording), “[a]t a time when an original was under the control of the party against whom offered, that party was put on notice, by the pleadings or otherwise, that the contents would be a subject of proof at the hearing, and that party does not produce the original at the hearing!.]”
. See Fed.R.Evid. 201 (“A judicially noticed fact must be one not subject to reasonable dispute in that it is ... capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.”).
Concurrence in Part
concurring and dissenting:
I concur in Part II of the majority’s 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 majority’s analysis in Part I. Hearsay evidence that falls within a firmly rooted hearsay exception does not offend any federal right held by parolees, and we therefore have no authority to impose “Comito balancing” when such evidence is proffered in parole revocation hearings conducted by a state. The majority’s contrary holding places the Ninth Circuit in conflict with the only other circuit to squarely consider this issue. See United States v. Williams,
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.”
We have allowed the admission of statements falling within a firmly rooted hearsay exception since the Court’s recognition in Mattox v. United States,156 U.S. 237 ,15 S.Ct. 337 ,39 L.Ed. 409 (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 Clause would 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,
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 crafted 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,
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 Fed.R.Evid. 801(d)(1), (2); Hall,
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,
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. 990. But this rationale is foreign to our jurisprudence. We cannot retool discrete constitutional guarantees so long as the total quantum of “due process” afforded to parolees will not exceed that of criminal defendants. Like parolees, juveniles in delinquency proceedings have no right to a jury trial, see McKeiver v. Pennsylvania,
The majority asserts that its decision is compelled by the “law of this circuit,” rejecting the Second Circuit’s contrary views in a footnote. Maj. Op. 988-89; id. at 990 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 parol
Furthermore, our most recent decision in Hall strongly supports the approach taken by the Second Circuit. Compare United States v. Aspinall,
II.
To apply its prescribed “balancing test,” the Comito court instructed decisionmakers to consider “the accuracy and reliability of the proffered [hearsay] evidence,” and advised that the greater the reliability of the proffered evidence, the lesser a respondent’s interest “in testing it by exercising his right to confrontation.” See
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., Fed.R.Evid. 104(a). No decision by the Supreme Court or the Ninth Circuit has found this practice to contravene the minimum requirements of due process or to require additional procedural safeguards. By requiring such safeguards in parole revocation hearings, the majority departs from Supreme Court precedent and exceeds our limited authority to intervene in the criminal justice system of the fifty states. The majority declares: “[W]e are not bound to adhere only to minimal requirements [of due process].” Maj. Op. 992. The Supreme Court has stated: “Our task is limited to deciding the minimum requirements of due process.” Morrissey,
. In my view, the type of "hearsay” evidence that raises federal due process concerns is straightforward. Because the Fourteenth Amendment confers no greater confrontation right than that afforded to criminal defendants, the state must show "good cause” only where it relies on evidence that would violate the Confrontation Clause in a criminal proceeding.
. The majority posits that certain rules of evidence, such as Rule 403 of the Federal Rules of Evidence and its state analogues, may help to alleviate this disparity. See Maj. Op. 990-91. I decline to rely on legislative enactments and the discretion of trial judges to offset the asymmetry that the majority injects into the Constitution.