Opinion
No. 20-15795
08-20-2021
Forrest Lee JONES; Rodrigo Ruben Escarcega; Dennis Barnes, on behalf of themselves and all others similarly situated, Plaintiffs-Appellants, v. Kathleen ALLISON, Secretary of the California Department of Corrections and Rehabilitation, in her official capacity; Ralph Diaz, in his individual capacity; Scott Kernan, in his individual capacity; and John Does 1–10, in their individual and official capacities, Defendants-Appellees.
Ernest Galvan (argued), Michael W. Bien, and Rekha Arulanantham, Rosen Bien Galvan & Grunfeld LLP, San Francisco, California, for Plaintiffs-Appellants. Cassandra J. Shryock (argued) and Jeffrey T. Fisher, Deputy Attorneys General; Misha D. Igra, Supervising Deputy Attorney General; Monica N. Anderson, Senior Assistant Attorney General; Office of the Attorney General, San Francisco, California; for Defendants-Appellees.
Ernest Galvan (argued), Michael W. Bien, and Rekha Arulanantham, Rosen Bien Galvan & Grunfeld LLP, San Francisco, California, for Plaintiffs-Appellants.
Cassandra J. Shryock (argued) and Jeffrey T. Fisher, Deputy Attorneys General; Misha D. Igra, Supervising Deputy Attorney General; Monica N. Anderson, Senior Assistant Attorney General; Office of the Attorney General, San Francisco, California; for Defendants-Appellees.
Before: Sandra S. Ikuta and Jacqueline H. Nguyen, Circuit Judges, and Richard K. Eaton, Judge.
Richard K. Eaton, Judge of the United States Court of International Trade, sitting by designation.
EATON, Judge: The issue before us is whether state executive officials of the California Department of Corrections and Rehabilitation (the "CDCR"), are immune from claims brought under 42 U.S.C. § 1983 for damages stemming from the CDCR's adoption of regulations pursuant to the authority delegated to it by the California Constitution.
The CDCR is the state administrative agency responsible for the operation of California's state prison and parole systems. See CAL. GOV'T CODE § 12838.5 (West 2021).
I
In November 2016, California voters passed Proposition 57, which amended the California Constitution by adding Article I, Section 32. See Cal. Const. art. I, § 32 (" Section 32"). Section 32 granted eligibility for early parole consideration to state prison inmates convicted of nonviolent felonies who had completed the full term for their primary offense. See id. § 32 (a)(1) ("Any person convicted of a nonviolent felony offense and sentenced to state prison shall be eligible for parole consideration after completing the full term for his or her primary offense."). Section 32 authorized the CDCR to adopt implementing regulations: "The [CDCR] shall adopt regulations in furtherance of [ Section 32 ’s] provisions, and the Secretary of the [CDCR] shall certify that these regulations protect and enhance public safety." See id. § 32 (b).
In 2017 and 2018, the CDCR adopted regulations (collectively, the "Regulations"), which excluded from early parole consideration nonviolent felony offenders sentenced to indeterminate sentences under California's Three Strikes Law. In 2018, the California Court of Appeal found that the Regulations’ exclusion of these offenders was inconsistent with Section 32. See In re Edwards , 26 Cal.App.5th 1181, 237 Cal. Rptr. 3d 673, 682 (2018) ("[The] CDCR's adopted regulations impermissibly circumscribe eligibility for Proposition 57 parole by barring relief for Edwards and other similarly situated inmates serving Three Strikes sentences for nonviolent offenses. The offending provisions of the adopted regulations are inconsistent with section 32 and therefore void.").
As in effect from March 7, 1994 to November 6, 2012, California's Three Strikes Law provided that a criminal defendant convicted of two prior "serious" or "violent" felonies would receive an indeterminate twenty-five-years-to-life sentence if convicted of a third felony, even if that third felony was nonviolent. See People v. Superior Ct. (Romero) , 13 Cal.4th 497, 53 Cal.Rptr.2d 789, 917 P.2d 628, 630–31 (1996). On November 6, 2012, voters approved Proposition 36, which amended the Three Strikes Law to eliminate indeterminate sentences for a criminal defendant whose third felony was a nonserious or nonviolent crime. See 2012 Cal. Legis. Serv. A-36 (amending Cal. Penal Code §§ 667, 1170.12 ). As a result, since the new law took effect on November 7, 2012, criminal defendants receive an indeterminate twenty-five-years-to-life sentence only if their third felony is serious, violent, or part of an enumerated list of nonviolent or nonserious felony exceptions. See People v. Valencia , 3 Cal.5th 347, 220 Cal.Rptr.3d 230, 397 P.3d 936, 942 (2017).
Thereafter, in 2019, the CDCR amended the Regulations to include, for early parole consideration, state prisoners serving indeterminate sentences for nonviolent third-strike offenses (the "Amendments"). See Cal. Code Regs. tit. 15, § 2449.30 (2019). In the Amendments, the CDCR set a deadline of December 31, 2021 by which to schedule parole consideration hearings for all of the previously excluded offenders. See id. § 2449.32(b).
Forrest Jones, Rodrigo Escarcega, and Dennis Barnes ("Plaintiffs") are felony offenders previously sentenced under California's Three Strikes Law whose "third strike" was a nonviolent felony, and who became eligible for early parole under the Amendments. Plaintiffs brought claims under 42 U.S.C. § 1983 on behalf of themselves, a class, and two subclasses, against former and current CDCR officials ("Defendants").
In addition to their § 1983 claims, Plaintiffs alleged violations of California's Tom Bane Civil Rights Act and the California Constitution. They also brought a state law claim of false imprisonment. The District Court declined to extend supplemental jurisdiction to these state law claims. On appeal, Plaintiffs do not substantively challenge this decision.
The "Eligibility Class" includes "all people who were serving an indeterminate life sentence for a nonviolent offense under California's Three Strikes Law on January 1, 2017, and whose ‘full term of the primary offense’ is scheduled to elapse on or before December 31, 2021."
The "Released Subclass" includes "all members of the Eligibility Class who have been released since January 1, 2017 and whose release was not caused by events that occurred between January 1, 2017 and January 1, 2019." In other words, it includes members of the Plaintiff class whose full term for their primary offense had ended before Proposition 57 was passed and have since been released from prison, but whose release might have been secured earlier had Defendants’ Regulations not denied them access to parole consideration.
The "Injunctive Subclass" includes "all members of the Eligibility Class who have not yet received parole consideration since the effective date of the January 2019 regulations."
Plaintiffs did not name the CDCR as a defendant.
Plaintiffs asserted claims for damages against Defendants in their individual capacities. Specifically, Plaintiffs sought relief for alleged violations of their Fourteenth Amendment procedural and substantive due process rights for the time they spent incarcerated and ineligible for early parole consideration because of the unlawful Regulations.
Plaintiffs also asserted a claim for injunctive relief against Defendants in their official capacities, alleging violations of Plaintiffs’ Fourteenth Amendment procedural due process rights. Plaintiffs sought an injunction to compel Defendants to provide for an expedited date by which Plaintiffs’ parole consideration hearings must be scheduled. Plaintiffs have forfeited this claim by failing to challenge its dismissal on appeal. See Cruz v. Int'l Collection Corp. , 673 F.3d 991, 998 (9th Cir. 2012) ("We review only issues which are argued specifically and distinctly in a party's opening brief.").
On a Rule 12(b)(6) motion by Defendants, the District Court dismissed Plaintiffs’ case with prejudice. It dismissed the claims for damages as barred by qualified immunity. Thereafter, Plaintiffs appealed.
Dismissals for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) are reviewed de novo . See Palm v. L.A. Dep't of Water & Power , 889 F.3d 1081, 1085 (9th Cir. 2018). Additionally, grants of immunity to government officials are reviewed de novo . See Kaahumanu v. County of Maui , 315 F.3d 1215, 1219 (9th Cir. 2003).
We may affirm a District Court's decision granting a motion to dismiss on any ground supported by the record. See McQuillion v. Schwarzenegger , 369 F.3d 1091, 1096 (9th Cir. 2004) (explaining that the appeals court "may affirm on any ground supported by the record"). Here, we affirm the dismissal of Plaintiffs’ claims for damages under the doctrine of legislative immunity.
II
A
Under the doctrine of legislative immunity, members of Congress and state legislators are entitled to absolute immunity from civil damages for their performance of lawmaking functions. See Tenney v. Brandhove , 341 U.S. 367, 376–77, 379, 71 S.Ct. 783, 95 L.Ed. 1019 (1951) (finding that state legislators were absolutely immune from damages when acting within the "sphere of legitimate legislative activity"). Legislative immunity, however, is not limited to officials who are members of legislative bodies. See Cleavinger v. Saxner , 474 U.S. 193, 201, 106 S.Ct. 496, 88 L.Ed.2d 507 (1985) ("Absolute immunity flows not from rank or title or ‘location within the Government,’ but from the nature of the responsibilities of the individual official." (citation omitted) (quoting Butz v. Economou , 438 U.S. 478, 511, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978) )). "[O]fficials outside the legislative branch are entitled to legislative immunity when they perform legislative functions." Bogan v. Scott-Harris , 523 U.S. 44, 55, 118 S.Ct. 966, 140 L.Ed.2d 79 (1998).
Thus, under this functional approach, the Supreme Court has held that legislative immunity does not depend on the actor so much as the functional nature of the act itself. See id. at 54–55, 118 S.Ct. 966 ("Absolute legislative immunity attaches to all actions taken ‘in the sphere of legitimate legislative activity.’ " (quoting Tenney , 341 U.S. at 376, 71 S.Ct. 783 )).
We too have employed a functional approach in legislative immunity cases. In Kaahumanu , we considered whether local council-members were entitled to legislative immunity for their denial of a conditional land-use permit. See 315 F.3d at 1218–20. In holding that the members’ decision was not functionally legislative in nature, we found that the denial of the permit did not bear the "hallmarks of traditional legislation," in part because the decision was made on an ad hoc basis affecting only a few individuals, rather than developing policy. Id. at 1223–24. This idea is also found in Cinevision Corp. v. City of Burbank , where we stated that a legislative function "involve[s] the formulation of policy ‘as a defined and binding rule of conduct.’ " 745 F.2d 560, 580 (9th Cir. 1984) (quoting Yakus v. United States , 321 U.S. 414, 424, 64 S.Ct. 660, 88 L.Ed. 834 (1944) ).
Other circuits have held that officers, and indeed employees, of the executive branch of a state government may benefit from legislative immunity. See, e.g. , Redwood Vill. P'ship v. Graham , 26 F.3d 839, 842 (8th Cir. 1994) (holding that "[state] executive officials are absolutely immune from suits for money damages under section 1983 for their promulgation of rules"); see also, e.g. , State Emps. Bargaining Agent Coal. v. Rowland , 494 F.3d 71, 82 (2d Cir. 2007) ("Legislative immunity shields from suit not only legislators, but also officials in the executive and judicial branches when they are acting ‘in a legislative capacity.’ " (quoting Bogan , 523 U.S. at 55, 118 S.Ct. 966 )).
B
We first address Defendants’ authority to adopt the Regulations—a threshold requirement for entitlement to legislative immunity. See Schmidt v. Contra Costa County , 693 F.3d 1122, 1132 (9th Cir. 2012). Plaintiffs argue that Defendants lacked such authority because the Regulations were ultimately determined to be unlawful. In Plaintiffs’ view, "[t]he regulatory authority in Section 32 (a)(2)(b) [is] for ‘regulations in furtherance of these provisions,’ not regulations to re-write these provisions to withhold them from persons the voters intended to benefit." Plaintiffs thus contend that the adoption of the particular Regulations was simply not authorized by Section 32, because the California Court of Appeal later found that the Regulations violated the California Constitution. We reject this argument for the reason that an official's "authority to regulate" does not depend on whether a particular action yielded an enforceable or sustainable result. Rather, it exists where "officials ‘act[ed] in the sphere of legitimate legislative activity.’ " Schmidt , 693 F.3d at 1132 (alteration in original) (quoting Tenney , 341 U.S. at 376, 71 S.Ct. 783 ).
There can be little doubt that Defendants acted within the legislative sphere when they participated in the adoption of the Regulations. The authority delegated to the CDCR was to "adopt regulations in furtherance of [ Section 32 ’s] provisions." Cal. Const. art. I, § 32 (b) (emphasis added). This is precisely what Defendants did. Thus, they acted "within their ... delegated legislative powers." Schmidt , 693 F.3d at 1132. That the Regulations were later found to violate the California Constitution does not diminish Defendants’ authority to adopt the Regulations in the first place. In other words, Section 32 ’s authorization placed Defendants’ acts adopting the Regulations in "the sphere of legitimate legislative activity," no matter that provisions of the Regulations were later declared void.
Next, we consider whether Defendants performed a legislative function entitled to immunity. We conclude that they did. As the Kaahumanu Court observed, where an act is one that "effectuate[s] policy" rather than one taken for a limited "ad hoc" purpose, a finding of legislative immunity is favored. 315 F.3d at 1220. Here, Section 32 authorized Defendants to adopt regulations for the purpose of implementing policy, i.e. , the early parole eligibility of a wide class of nonviolent felony offenders, rather than for a limited, "ad hoc" purpose. See, e.g. , Bateson v. Geisse , 857 F.2d 1300, 1304 (9th Cir. 1988) ("[A]n act which applies generally to the community is a legislative one, while an act directed at one or a few individuals is an executive one." (alteration in original) (quoting Cinevision , 745 F.2d at 579 )); see also Kaahumanu , 315 F.3d at 1222 (in accord).
Similarly, as in Kaahumanu , we look to the purpose and effect of the challenged acts when deciding whether they are legislative in nature. See 315 F.3d at 1220. The Regulations bear the hallmarks of laws that might have been enacted by a state legislature. As noted, by adopting them, Defendants created binding rules of conduct affecting a wide population of individuals. See Cinevision , 745 F.2d at 580 ("[A legislative function] involve[s] the formulation of policy ‘as a defined and binding rule of conduct.’ " (quoting Yakus , 321 U.S. at 424, 64 S.Ct. 660 )). Also, like typical legislation, the Regulations had "prospective implications that reach[ed] beyond the particular persons immediately impacted" and involved "the use of discretion" when acting pursuant to the delegation in Section 32. Schmidt , 693 F.3d at 1137 ; see also Kaahumanu , 315 F.3d at 1223 (finding that a "discretionary, policymaking decision" with far-reaching implications bears the "hallmarks of traditional legislation" (quoting Bogan , 523 U.S. at 55, 118 S.Ct. 966 )).
Thus, Section 32 ’s delegation authorized the CDCR to perform a legislative function, and the resulting Regulations themselves functioned as legislation. They bore the hallmarks of legislation—they were binding, policy-implementing rules that operated much as laws passed by a state legislature would. Accordingly, Defendants enjoy absolute immunity from Plaintiffs’ claims for damages brought under § 1983.
III
Because Defendant officials of the CDCR were performing a legislative function when they adopted the Regulations as directed by Article I, Section 32 of the California Constitution, we find that they are entitled to legislative immunity from Plaintiffs’ § 1983 claims for damages, and affirm the dismissal of these claims.