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Ninth Circuit Holds California Prison Officials Entitled to Legislative Immunity When Promulgating Rules

by David M. Reutter

On August 20, 2021, the U.S. Court of Appeals for the Ninth Circuit affirmed an order finding officials with the California Department of Corrections and Rehabilitation (CDCR) are immune to civil rights claims for damages resulting from regulations they adopted while exercising authority delegated them by the state legislature under the California Constitution.

The Court’s opinion was issued in an appeal brought by a class of prisoners excluded from parole eligibility under regulations adopted by CDCR after California voters amended the state constitution in November 2016 with passage of Proposition 57. That law added Section 32 to the constitution’s Article I, granting eligibility for early parole to prisoners convicted of nonviolent felonies who complete the full term of their primary offense.

In 2017 and 2018, CDCR then adopted regulations that excluded from early parole consideration those nonviolent felony offenders sentenced to indeterminate prison terms under California’s “Three Strikes” law. But the state Supreme Court found those regulations were inconsistent with Section 32. See: In re Edwards, 237 Cal. Rptr. 3d 673 (Ct. App. 2018).

CDCR then amended its regulations in 2019 to provide early parole to all offenders serving nonviolent felonies under the “Three Strikes” law. It also set a December 31, 2021, deadline to consider the previously excluded prisoners.

Aided by counsel from the San Francisco firm of Rosen Bien Galvan & Grunfeld LLP, CDCR prisoners Forrest Jones, Rodrigo Escarcega, and Dennis Barnes brought a class action suit under 42 U.S.C. § 1983 in federal court for the Northern District of California, seeking damages for the time they were ineligible for early parole consideration because of the unlawful regulations. The district court granted Defendants’ motion to dismiss on qualified immunity grounds. On appeal, the Ninth Circuit affirmed, finding Defendants were entitled to legislative immunity.

Under the “functional approach” to legislative immunity, the Court noted, it has been held that “officers, and indeed employees, of the executive branch of a state government may benefit from legislative immunity” if they are acting in a legislative capacity.

Defendants had authority to enact the regulations, the Court continued, and even if those rules were later struck down, their actions fell within “the sphere of legitimate legislative activity,” since they “effectuate[d] policy” rather than addressing a limited ad hoc purpose.

Moreover, the Court said, the regulations “bear the hallmarks” of laws that a state legislature might pass: creating binding rules of conduct affecting a lot of people with broad prospective application which involved the use of discretion when acting pursuant to delegated authority. Thus the district court’s order was affirmed. See: Jones v. Allison, 9 F.4th 1136 (9th Cir. 2021). 

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Related legal case

Jones v. Allison