Miller v. Davis

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DONALD A. MILLER,  No. 06-55538

Plaintiff-Appellant,

v.  D.C. No.

CV-05-02625-FMC

GRAY DAVIS, as an individual,

OPINION

Defendant-Appellee.



Appeal from the United States District Court

for the Central District of California

Florence Marie Cooper, District Judge, Presiding

Argued and Submitted

December 5, 2007—San Francisco, California

Filed April 2, 2008

Before: Dorothy W. Nelson and Stephen Reinhardt,

Circuit Judges, and Louis F. Oberdorfer,* Senior Judge.

Opinion by Judge Reinhardt

*The Honorable Louis F. Oberdorfer, Senior United States District

Judge for the District of Columbia, sitting by designation.

3421

3424 MILLER v. DAVIS

COUNSEL

Richard Hamlish, Westlake Village, California, for the

plaintiff-appellant.

Bill Lockyer, Attorney General for the State of California;

James M. Humes, Chief Assistant Attorney General; Frances

T. Grunder, Senior Assistant Attorney General; and Thomas

Patterson and Rene L. Lucaric, Supervising Deputy Attorneys

General, for defendants-appellees Davis, Schwarzenegger,

Rich, Duncan, BPH, CDCR, Ortega, Gillis, Lushcough,

Koenig, Bordonaro, and Bentley.

OPINION

REINHARDT, Circuit Judge:

The California Constitution authorizes the Governor to

review a state parole board’s decision granting, denying,

revoking, or suspending parole “of a person sentenced to an

indeterminate term upon conviction of murder.” Cal. Const.

art. V, § 8(b). We are asked to decide whether the Governor

is entitled to absolute quasi-judicial immunity for his reversal

of a parole board’s grant of parole where he erroneously

extends his authority to review parole decisions to an individ-

ual convicted of conspiracy to commit murder. We hold that

he is. Accordingly, we affirm the district court’s dismissal of

the plaintiff’s 42 U.S.C. § 1983 claims against former Gover-

nor Gray Davis.1

1

We dispose of the remainder of Miller’s claims in a separate memoran-

dum disposition filed concurrently with this opinion.

MILLER v. DAVIS 3425

I. Background

In 1980, Donald Miller was convicted of conspiracy to

commit murder and sentenced to 25 years to life in state

prison. His first two applications for parole, filed in 1996 and

1998, were denied by the California Board of Prison Terms

(“Board”). On February 18, 1999, the Board granted Miller’s

third application for parole and referred the decision to then-

Governor Davis for review. Governor Davis reversed it. Mil-

ler applied for parole a fourth time and, on October 2, 2000,

the Board again found him suitable for parole and again

referred the decision to Governor Davis. Again, he reversed

it.

On August 20, 2001, the California Court of Appeal

vacated Governor Davis’s reversal of the Board’s grant of

parole on the ground that the Governor lacked authority to

review the Board’s 1999 and 2000 parole decisions. Specifi-

cally, the court held that Article V, § 8 of the California Con-

stitution, and § 3041.2 of the California Penal Code, which

permit the Governor to review parole decisions of inmates

“sentenced to an indeterminate term upon conviction of mur-

der,” Cal. Const. art. V, § 8(b) (emphasis added), do not

authorize him to review parole decisions of inmates “whose

primary commitment offense is conspiracy to commit mur-

der” (emphasis added).

Following the state court’s decision, the Board reaffirmed

its prior grant of parole and set a parole release date of June

18, 2002. Pursuant to California Penal Code § 3041.1,2 Gov-

ernor Davis requested that the Board review its grant of

parole. The Board met en banc and again reaffirmed its deci-

sion to grant Miller parole. He was released from prison on

June 18, 2002.

2

Section 3041.1 allows the Governor, “[u]p to 90 days prior to a sched-

uled release date,” to request the “review of any decision by a parole

authority concerning the grant or denial of parole to any inmate in a state

prison.” Cal. Penal Code § 3041.1.

3426 MILLER v. DAVIS

In 2005, Miller filed this § 1983 action against former Gov-

ernor Davis, current Governor Arnold Schwarzenegger, War-

den William Duncan, several state agencies,3 and a number of

Board members, alleging that the defendants violated his con-

stitutional rights in prolonging his incarceration. The district

court dismissed the action as to all defendants. It held that the

Governor’s review of parole board decisions is a quasi-

judicial function and is therefore entitled to absolute immu-

nity. Although the Governor was not authorized to review

Miller’s parole decision because Miller was convicted not of

murder but of conspiracy to commit murder, the district court

construed the Governor’s decision to conduct the review as a

“mistake of law” and accorded him the protection of quasi-

judicial immunity. Miller appealed.

II. Discussion

Miller argues that Governor Davis is not entitled to abso-

lute quasi-judicial immunity for his reversals of Miller’s 1999

and 2000 parole grants because he lacked jurisdiction to

review the Parole Board’s decisions. “Whether a public offi-

cial is entitled to absolute immunity is a question of law that

is reviewed de novo.” Goldstein v. City of Long Beach, 481

F.3d 1170, 1172 (9th Cir. 2007).

[1] It has long been established that judges are absolutely

immune from liability for acts “done by them in the exercise

of their judicial functions.” Bradley v. Fisher, 80 U.S. (13

Wall.) 335, 347 (1871). The Supreme Court has extended

such absolute immunity to other public officials who perform

activities that are “functionally comparable” to those of

judges. Butz v. Economou, 438 U.S. 478, 513 (1978); see also

Sellars v. Procunier, 641 F.2d 1295, 1303 (9th Cir. 1981) (“If

an official’s role is functionally equivalent to that of a judge,

3

The state agencies named in Miller’s First Amended Complaint were

the California Department of Corrections, the California Youth and Adult

Correctional Agency, and the Board itself.

MILLER v. DAVIS 3427

the official will be granted equivalent immunity.”). Such

activities are sometimes referred to as “quasi-judicial.” See,

e.g., Imbler v. Pachtman, 424 U.S. 409, 420 (1976). “Abso-

lute immunity flows not from rank or title . . . but from the

nature of the responsibilities of the individual official.” Cleav-

inger v. Saxner, 474 U.S. 193, 201 (1985). The Court has out-

lined a list of factors to consider in determining whether an

official’s functions are quasi-judicial in nature: (1) the need to

insulate the official from harassment or intimidation; (2) the

presence of procedural safeguards to reduce unconstitutional

conduct; (3) insulation from political influence; (4) the impor-

tance of precedent in the official’s decision; (5) the adversary

nature of the process; and (6) the correctability of error on

appeal. Id. at 202 (citing Butz, 438 U.S. at 512). This list of

factors is nonexhaustive, however, and an official need not

satisfy every factor to be entitled to absolute quasi-judicial

immunity. See Olsen v. Idaho State Bd. of Med., 363 F.3d

916, 923 (9th Cir. 2004) (noting that the Butz factors are

“nonexclusive”).

We hold that the Governor’s review of parole decisions

regarding prisoners convicted of murder pursuant to Article

V, § 8(b) of the California Constitution is “functionally com-

parable” to a judge’s role and is therefore entitled to absolute

immunity from damages liability. Admittedly, several of the

Butz factors weigh against such a conclusion—the Governor’s

review is not adversarial in nature, there is no requirement

that the Governor consider precedent in making his determi-

nation, and the Governor is, by definition as an elected offi-

cial, not insulated from political influence, as Governor

Davis’s almost uniform denials of parole amply demonstrate.

Nevertheless, we believe that the Governor’s review of parole

decisions “shares enough of the characteristics of the judicial

process,” Butz, 483 U.S. at 513, to warrant absolute quasi-

judicial immunity.

[2] First, the constitutional provision and related statute

provide several procedural safeguards akin to the institutional

3428 MILLER v. DAVIS

safeguards that constrain appellate courts. Article V, § 8(b)

provides that the Governor, in making his decision, is limited

to “the same factors which the parole authority is required to

consider.” See In re Rosenkrantz, 59 P.3d 174, 207 (Cal.

2003) (“[T]he Governor’s decision must be based upon the

same factors that restrict the Board in rendering its parole

decision.”). Section 8(b) also subjects the Governor’s review

“to procedures provided by statute,” and the relevant statute,

California Penal Code § 3041.2, limits the Governor’s review

of parole decisions to “materials provided by the parole

authority.” Cal. Penal Code § 3041.2(a); see In re Gray, 59

Cal. Rptr. 3d 724, 739 (Cal. Ct. App. 2007) (holding that the

Governor erred in considering evidence that was not before

the Board). Furthermore, § 3041.2 requires the Governor, if

he decides to reverse or modify the Board’s parole determina-

tion, to “send a written statement to the inmate specifying the

reasons for his . . . decision.” § 3041.2(b); see also Cal. Const.

art. V, § 8(b) (requiring the Governor to “report to the Legis-

lature each parole decision affirmed, modified, or reversed,

stating the pertinent facts and reasons for the action”). Thus,

like an appellate court, the Governor reviewing a parole deci-

sion is limited in the evidence and factors he may consider

and must provide in writing the reasoning supporting his deci-

sion.

[3] Second, the Governor’s decision can be corrected on

appeal. The California Supreme Court has held explicitly that

the courts properly can review a Governor’s deci-

sions whether to affirm, modify, or reverse parole

decisions by the Board to determine whether they

comply with due process of law, and . . . such review

properly can include a determination of whether the

factual basis of such a decision is supported by some

evidence in the record that was before the Board.

Rosenkrantz, 59 P.3d at 212. Although the courts’ review of

the Governor’s parole decisions is deferential, see id. at 218

MILLER v. DAVIS 3429

(“As long as the Governor’s decision reflects due consider-

ation of the specified factors as applied to the individual pris-

oner in accordance with applicable legal standards, the court’s

review is limited to ascertaining whether there is some evi-

dence in the record that supports the Governor’s decision.”);

In re Smith, 7 Cal. Rptr. 3d 655, 678 (Cal. Ct. App. 2003)

(“[T]he Governor’s decision is entitled to great judicial defer-

ence . . . .”), the “some evidence” standard of review at the

very least ensures that the Governor’s decisions comply with

the requirements of due process, Rosenkrantz, 59 P.3d at 205

(“[D]ue process of law requires that the factual basis of a

decision . . . to rescind parole be supported by some evi-

dence.”); id. at 209 (“[B]ecause due process of law requires

that a [parole] decision . . . be supported by some evidence in

the record, the Governor’s decision is subject to judicial

review . . . .”). Where the Governor’s reversal of parole is not

supported by “some evidence,” the California courts have not

hesitated to reverse the Governor’s decision. See Smith, 7 Cal.

Rptr. 3d at 678-79; In re Smith, 134 Cal. Rptr. 2d 781, 794

(Cal. Ct. App. 2003); In re Capistran, 132 Cal. Rptr. 2d 872,

876-88 (Cal. Ct. App. 2003).

[4] Finally, there is a strong need to ensure that the Gover-

nor is able to perform his reviewing function under Article V,

§ 8(b) without the threat of harassment through civil lawsuits.

The Governor reviews dozens of parole grants in murder

cases every year. See Nancy Vogel, Gov. Paroles Second

Killer, L.A. Times, Nov. 27, 2003, at A1 (reporting that Gov-

ernor Davis reviewed 294 grants of parole to defendants con-

victed of murder during his five years in office). If every

reversal of a parole decision were to subject the Governor to

potential liability, his capacity to perform the reviewing duties

bestowed upon him by California’s voters4 would be seriously

hindered. Cf. Sellars, 641 F.2d at 1303 (“If parole board offi-

4

Article V, § 8(b) was added to the California Constitution via an

amendment (Proposition 89) approved by California voters in the Novem-

ber 1988 general election. See Rosenkrantz, 59 P.3d at 206.

3430 MILLER v. DAVIS

cials had to anticipate that each time they rejected a prisoner’s

application for parole, they would have to defend that deci-

sion in federal court, their already difficult task . . . would

become almost impossible.”).

[5] Thus, in light of the judicial nature of the Governor’s

review, the procedural safeguards that apply, and the judicial

review that ensures that his review comports with due pro-

cess, as well as the strong need to allow the Governor to per-

form his reviewing function without threat of harassing

litigation, we hold that the Governor’s review of parole deci-

sions pursuant to his authority under Article V, § 8(b) and

Penal Code § 3041.2 is “functionally comparable” to the role

of a judge and, accordingly, that he is entitled to absolute

quasi-judicial immunity for that review. This conclusion is in

line with our prior decisions holding that parole board offi-

cials are entitled to absolute immunity “when they decide to

grant, deny, or revoke parole.” Sellars, 641 F.2d at 1303; see

also Anderson v. Boyd, 714 F.2d 906, 908-09 (9th Cir. 1983).

Given that the Governor, in exercising his authority under

Article V, § 8(b), performs essentially the same function as

parole board officials, and must review the identical record

those officials review when deciding whether or not an inmate

convicted of murder is suitable for parole, we see no reason

to deny him the same immunity we afford those officials

when they carry out their adjudicatory tasks.

Ultimately, Miller does not seriously dispute that the Gov-

ernor is entitled to absolute immunity for his review of parole

decisions authorized by Article V, § 8(b)—that is, grants of

parole to inmates who have been convicted of murder. He

argues, rather, that Governor Davis was not authorized under

Article V, § 8(b) to review his parole decision because he was

convicted not of murder but of conspiracy to commit murder.

Thus, he argues, the Governor’s reversal of that grant is not

protected by absolute immunity. His argument is flawed.

The absolute immunity normally accorded officials per-

forming quasi-judicial functions does not extend to “actions,

MILLER v. DAVIS 3431

though judicial in nature, taken in the complete absence of all

jurisdiction.” Mireles v. Waco, 502 U.S. 9, 12 (1991). Where

the official acts merely in excess of his authority, however, he

will not be deprived of immunity; “rather, he will be subject

to liability only when he has acted in the ‘clear absence of all

jurisdiction.’ ” Stump v. Sparkman, 435 U.S. 349, 356-57

(1978) (quoting Bradley, 80 U.S. (13 Wall.) at 351). “Juris-

diction should be broadly construed to effectuate the policies

supporting immunity.” Ashelman v. Pope, 793 F.2d 1072,

1076 (9th Cir. 1986) (en banc); see also Stump, 435 U.S. at

356 (“Because ‘some of the most difficult and embarrassing

questions which a judicial officer is called upon to consider

and determine relate to his jurisdiction . . . ,’ the scope of the

judge’s jurisdiction must be construed broadly . . . .” (quoting

Bradley, 80 U.S. (13 Wall.) at 352)) (citation omitted).

[6] In determining judicial immunity, we have distin-

guished between acts “in excess of jurisdiction” and acts “in

the clear absence of jurisdiction” by looking to the subject-

matter jurisdiction of the judge: “[a] clear absence of all juris-

diction means a clear lack of all subject matter jurisdiction.”

Mullis v. U.S. Bankr. Court, Dist. of Nev., 828 F.2d 1385,

1389 (9th Cir. 1987). In this case, the Governor’s review of

Miller’s parole decision was not “clearly and completely out-

side the scope of [his] jurisdiction.” Demoran v. Witt, 781

F.2d 155, 158 (9th Cir. 1986). Although Article V, § 8(b) and

Penal Code § 1304.2 on their face refer only to persons con-

victed of “murder,” it was not clear, at least before the Cali-

fornia court clarified the scope of these provisions,5 that the

5

When, after the Governor’s second denial of Miller’s parole grant, the

California Court of Appeal declared that Article V, § 8(b) does not extend

to persons convicted of conspiracy to commit murder, the Governor was

put on notice that he had no authority to reverse parole decisions relating

to such individuals. From that time on he would have acted in the clear

absence of jurisdiction had he reviewed a parole decision in a conspiracy

to commit murder case. See Bradley, 80 U.S. (13 Wall.) at 351-52

(“Where there is clearly no jurisdiction over the subject-matter any author-

3432 MILLER v. DAVIS

term “murder” did not encompass conspiracy to commit mur-

der. Conspiracy to commit murder is certainly closely related

to the substantive offense. Moreover, defendants convicted of

conspiracy to commit murder in California are “punishable in

the same manner and to the same extent as” defendants con-

victed of murder. Cal. Penal Code § 182(a); see also id. (“[I]n

the case of conspiracy to commit murder, . . . the punishment

shall be that prescribed for murder in the first degree.”). Thus,

the state of California clearly considers the culpability of indi-

viduals who conspire to commit murder on a par with that of

individuals who actually carry out the deed themselves. Given

the close relationship between these two offenses, Governor

Davis’s review of parole decisions involving a person con-

victed of conspiracy to commit murder was not clearly out-

side the scope of his jurisdiction. See Crooks v. Maynard, 913

F.2d 699, 701 (9th Cir. 1990) (holding that a judge did not act

in clear absence of all jurisdiction where he had “colorable

authority” to take the action in question).

[7] Although Governor Davis’s review of Miller’s parole

grant, based on his erroneous reading of Article V, § 8(b), was

in excess of his authority, it was not an act done in the “clear

absence of all jurisdiction.” Cf. Schucker v. Rockwood, 846

F.2d 1202, 1204 (9th Cir. 1988) (holding that a judge who

“misinterpreted a statute and erroneously exercised jurisdic-

tion” did not act in the “clear absence of all jurisdiction”).

Accordingly, Governor Davis is entitled to absolute quasi-

judicial immunity for his reversal of the Board’s decisions

granting Miller parole.6

ity exercised is a usurped authority, and for the exercise of such authority,

when the want of jurisdiction is known to the judge, no excuse is permissi-

ble.”) (emphasis added). In the present case, however, Governor Davis

reviewed the Board’s decision granting Miller parole before the California

court had clarified the scope of his authority under Article V, § 8(b).

6

Because we hold that Governor Davis is entitled to absolute immunity,

we do not reach the statute of limitations question.

MILLER v. DAVIS 3433

The district court’s dismissal of Miller’s claims as to Gov-

ernor Davis is

AFFIRMED.