California: Parole Board’s Policy Barring Friendly Oral Witness Testimony At Lifer Hearings Ruled An “Underground Regulation”
The California Code of Regulations (CCR), Title 1, § 250(a) defines “underground regulation” as “any guideline, criterion, bulletin, manual, instruction, order, standard of general application, or other rule, including a rule governing a state agency procedure, that is a regulation as defined in Section 11342.600 of the Government Code [Administrative Procedure Act (“APA”)], but has not been adopted as a regulation and filed with the Secretary of State....” Thus, when a state agency such as the BPH spontaneously creates spurious “policies,” it may well be acting in excess of its authority under 1 CCR § 250(a). Any person may challenge such a perceived policy by requesting a determination from the Office of Administrative Law.
Donald A. Miller, a consultant in lifer parole law widely known for both his past legal work while in prison and for his highly successful efforts in lifer releases, filed such a request for determination in October 2008. The complained-of “policy” was demonstrated through two written responses from the BPH politely denying written requests from lifer family members to appear at their loved ones’ parole hearings to testify orally as to their suitability for parole. The OAL analyzed this evidence with respect to 1 CCR § 250(a).
It found that under Penal Code § 3052, the BPH certainly had the power to promulgate and submit such a regulation for approval. But the OAL also found that neither Penal Code § 3041.5 nor the BPH’s existing regulations, 15 CCR §§ 2245 -2256, expressly addressed such personal appearances. Rather, these regulations permitted only unfriendly witnesses (e.g., victims and prosecutors). At best, the OAL found existing regulatory language silent on the alleged “policy” of excluding friendly witnesses. But the absence of an express policy does not permit the assumption of such a policy. Indeed, Miller argued to the OAL that the rights established in existing (properly promulgated) regulations are not exclusive lists of lifer rights.
After considering Miller’s arguments, the BPH’s invited response, and the evidence, the OAL ruled that “the challenged rule prohibiting inmates from presenting oral witness testimony at parole suitability hearings meets the definition of a ‘regulation’ in Government Code § 11342.600, does not fall within any express statutory APA exemption and therefore, it should have been adopted as a regulation pursuant to the APA.”
Of course, the BPH could yet seek such a new regulation per lawful APA procedures, but this would take time and is subject to public comment and review before it could be adopted. In the meanwhile, the BPH’s “no friendly witness” policy remains stricken, and lifer’s families or other knowledgeable supporters may submit their requests to appear at upcoming BPH parole hearings. See: 2009 OAL Determination No. 9 (OAL File # CTU 2008-1016-05). The ruling is posted on PLN’s website.
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Related legal case
2009 OAL Determination No. 9 (OAL File # CTU 2008-1016-05)
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