In Re Fain

ROUSE, Acting P. J., Concurring and Dissenting.

I concur with the majority’s disposition of the res judicata issue, however, I cannot agree with their position on the question of public outcry.

*313 In my opinion, the Board of Prison Terms (board) 1 in this case found good cause to rescind Fain’s parole date, consistent with the teaching of In re Fain (1976) 65 Cal.App.3d 376 [ 135 Cal.Rptr. 543 ] (Fain I).

The parties, the trial court and the majority of this court frame the principal issue as to whether public outcry alone is a sufficient ground for parole rescission. This characterization of the issue betrays a misunderstanding of the board’s action and, worse, needlessly infuses this case with visions of vigilantism, public hysteria and abdication by the board of its responsibilities. When removed from such an emotional context, the question, more accurately stated, is twofold, i.e., whether or not the board’s awareness of public outcry may give rise to good cause, sufficient upon which to base rescission of parole, and, if so, did the board in this case rescind Fain’s parole based on such good cause? Based on a fair reading of Fain I and my review of the record, my answer to both parts of the question is yes.

The Fain I decision held that, pursuant to sections 3060 and 3063 of the Penal Code and California Administrative Code, title 15, section 2661 (now § 2451), 2 parole rescission may be based on any one of three specified grounds, namely, disciplinary conduct by the inmate, psychiatric deterioration of the inmate or any “new information which indicates that parole should not occur.” (Fain I, supra, 65 Cal.App.3d at p. 392 & fns. 12 & 13.) The Fain /court held that public outrage at the prospect of a particular individual’s release from prison constituted “ ‘new information which indicates that parole should not occur’ and which required the authority’s consideration of that possibility . . . .” (Id., at pp. 392-393.) While that court expressly refrained from holding that the Adult Authority’s awareness of such outrage would, in itself, “command” parole rescission (id., at p. 393), it clearly indicated that such awareness was “ ‘new information which indicates’—or not, depending upon the result to be reached in the rescission proceedings . . .—that [Fain’s] ‘parole should not occur’ because it reaches such pertinent questions as whether he may be assimilated into society, and indeed whether he will be personally safe, outside of prison” (id., at p. 393, fn. 14). The court then went on to state that, upon remand to the Adult Authority, said body would be entitled to exercise its “‘great,’ ‘absolute,’ and ‘almost unlimited,’’’discretion to decide whether Fain’s parole was “ ‘improvidently granted.’ ” (Id., at p. 394.)

Such analysis compels the conclusion that, far from enunciating any inflexible rule limiting the Adult Authority’s consideration of public outrage, the Fain I court took great pains to infringe as little as possible upon the Adult *314 Authority’s extremely broad discretion in matters entrusted to it by statute. Stated differently, the Fain I court held only that the Adult Authority could rely upon public outrage as a basis for parole rescission in any instance where the Adult Authority determined that there was public reaction of such a nature as to indicate that a particular inmate, if paroled, could not be assimilated into society or might be threatened with physical violence.

The Fain I court wisely declined to encroach upon the Adult Authority’s broad discretion within its area of expertise, preferring, instead, to adopt a more flexible rule which would allow its members to determine, on a case-by-case basis, whether public outrage should or should not warrant a parole rescission. At the same time, the court accorded full respect and protection to the due process rights of the potential parolee by pointing out that under no circumstances could mere whim, caprice or rumor constitute the basis for parole rescission and that the inmate always has the right to know the precise reason for the parole rescission. (Fain I, supra, at p. 394 .) Thus, the parole authority must specify exactly why it has determined that the public outrage in any particular case justifies parole rescission. Such a requirement facilitates informed review of a decision to rescind parole and effectively precludes the possibility that such a decision could be based upon improper factors such as those to which the majority alludes, namely, race, creed, ethnic background, labor activities or political views.

Here, the record shows that the board exercised its discretion consistently with the teaching of Fain I, finding and relying upon good cause for rescission as implicated and revealed by public outcry, rather than relying on the bare fact of, or yielding to, public pressure. The board’s conclusion states, in part, “The public outcry in this case is sufficient to constitute good cause for rescission of the parole date because it indicates that if Fain were paroled at this time, he could not be safely assimilated into society and his personal safety may be endangered. A release at this time would not be in the best interests or protect the safety of Fain or the public. ” (Italics added.) That the board did not simply rely on the petition is further evident in its finding that the signatures “are evidence of extraordinary public outcry [which] in conjunction with the other evidence is sufficient to constitute good cause to rescind Fain’s parole date.” (Italics added.)

Although there is no issue of sufficiency of the evidence before us, it bears noting that some of this “other evidence” presumably relied on by the board appears in the record. For example, in its reasons for disposition, the board specifically mentions relying on “opposition to Fain’s release expressed at [the] hearing on October 22 and 23, 1981 by the Senate Subcommittee on the Board of Prison Terms.” The hearing transcript shows that Chairman Brown and Executive Officer Dezember of the board were present to receive testimonial *315 evidence. They heard from a Ms. Goehring, who pointed out that Fain was set to be released into the same city where one of his rape victims presently resides, and from Mrs. Ulrich, mother of Fain’s shotgun-murder victim, who joined in Ms. Goehring’s comments. They heard from Oakdale Police Chief David Sundy, a 22-year veteran police officer, who expressed doubts that the public safety and welfare would be properly served by releasing any parolee into the same area where his victims live or his crimes were committed. 3 Assemblyman Thurman voiced concern that releasing a parolee into an area where he would not be “accepted back into society” would increase the parolee’s chances of recidivism and lessen his chances for successful rehabilitation. Such testimony is more than mere hysteria or public outrage or indignation; it specifically supports the board’s expressed concern for the safety and best interests of Fain and the public, as well as the unlikelihood of Fain’s safe assimilation into society at the time and in the geographic area proposed. We must also bear in mind that the hearing testimony thus described was but a small part of the total input available for the board’s consideration.

I make one further observation regarding the effect of public outcry in this case. Although the record shows that the board did not base its decision on public opposition per se (thus making it unnecessary to determine whether such a basis for action might be proper), I believe that the mere fact of public opposition has some place in the board’s discretionary decision.

The majority finds nothing in the applicable case law to suggest that public outcry may be considered as grounds for parole rescission. To the contrary, I find room for at least some consideration of public opposition in our Supreme Court’s mandate that “ ‘the interests of public security’ ” (In re Schoengarth (1967) 66 Cal.2d 295, 300 [ 57 Cal.Rptr. 600 , 425 P.2d 200 ], quoting from People v. Denne (1956) 141 Cal.App.2d 499, 507 [ 297 P.2d 451 ]) and “all relevant factors” (In re Minnis (1972) 7 Cal.3d 639, 645 [ 102 Cal.Rptr. 749 , 498 P.2d 997 ]; also cited in In re Dunham (1976) 16 Cal.3d 63 , 66 [ 127 Cal.Rptr. 343 , 545 P.2d 255 ) be considered in the exercise of the board’s discretion.

*316 The majority also finds nothing in the applicable statutes to suggest “that public outcry, per se, may be considered as a basis for rescission of parole.” Yet the very statutes they examine clearly mandate that public input be considered. Section 2028 of the Parole Board Rules states that comments from the public “shall be incorporated into the hearing record and considered before the decision is final.” (Italics added.) Section 3046 of the Penal Code requires the board to consider recommendations of persons “interested in the granting or denying of such parole.” Finally, the Victim’s Bill of Rights requires that the board “shall consider the statements of victims and next of kin” in deciding whether to release the person on parole. (Pen. Code, § 3043; italics added.) If the public input authorized by those provisions may trigger reconsideration of an already set parole date but cannot, as the majority maintains, in any way constitute cause for rescission, then I respectfully submit that to receive public input at all is an idle act—a meatless bone tossed to the public. I am sure that a murder victim’s next of kin exercising their rights under the Victim’s Bill of Rights, for example, would be appalled to learn that, while the board must listen to their comments, it is legally forbidden to let those comments affect its decision. I suspect that the Legislature would be equally appalled, for it seems to me that the majority is essentially nullifying the statutory mandate that the board consider public input in its decisions.

Putting aside the question whether public opposition, per se, has any place in determining cause for parole rescission, my disagreement with the majority in this case is over their evident skepticism as to whether the board in fact relied on anything but public opposition, per se. I do not share their skepticism; but, even if I did, I would be constrained to limit my inquiry to the board’s stated reasons and conclusion, and (if substantiality of the evidence were an issue), whether or not the evidence in the record sustained their position.

In this instance, I fear that the trial court and the majority have overlooked the doctrine of separation of powers, which precludes judicial inquiry into the motivation or mental processes of the board and speculation as to what might have been in the minds of the individual board members, except as might be shown by the official action taken. The court in Fain I specifically confronted Fain’s claim that the Adult Authority considered rescinding his parole because its chairman had “improperly yielded to public and political pressure,” concluding, “The contention is to be rejected, as a matter of law, because the constitutional doctrine of separation of powers precludes judicial inquiry into the ‘motivation or mental processes’ which may underlie action by a nonjudicial agency of government. [Citations.]” (Fain I, supra, 65 Cal.App.3d at p. 393, fn. 14 ; see also City and County of San Francisco v. Cooper (1975) 13 Cal.3d 898, 911-916 [ 120 Cal.Rptr. 707 , 534 P.2d 403 ] (refusing to examine whether school board’s enactment of ordinance and resolution was in response to coer *317 cive influence of “illegal” public employee strike); County of Los Angeles v. Superior Court (Burroughs) (1975) 13 Cal.3d 721 , 726-732 & fn. 5 [ 119 Cal.Rptr. 631 , 532 P.2d 495 ] (holding that lower court improperly ordered discovery of board of supervisors members’ conversations regarding reasons for voting for challenged ordinance); City of Fairfield v. Superior Court (1975) 14 Cal.3d 768 , 772-773 & fn. 1, 776-777 [ 122 Cal.Rptr. 543 , 537 P.2d 375 ] (concluding that discovery of reasoning processes of city council members acting in quasi-judicial capacity in rejecting application for planned unit development permit was improper).) Here, the official action taken, as evidenced by the board’s reasons and conclusions, shows due regard for good cause criteria apart from whatever influence the mere fact of public opposition may have had on the decision. Those who question the integrity of decisions made by the board or any other administrative body must seek reform through legislation directed at changing procedural safeguards rather than engage in the business of second-guessing the decisions of administrative bodies. 4

*318 The trial court disagreed with the board’s view that public outrage which surfaced just prior to the February 1982 decision to rescind the parole date is “new information” for purposes of Parole Board Rule 2451, subdivision (c). The court reasoned that the recent petition cannot be considered new because a similar petition containing 18,000 signatures was brought to the attention of the board five years ago, apparently taking the view that public outrage, once voiced, is old news forever after, regardless of its changing intensity. Or, to put it another way, the public has only one opportunity in the entire parole process to impact on the board’s decision. This reasoning is fundamentally flawed in two ways.

First, as the court in Fain I made clear, the board’s awareness of public hostility toward release of an inmate has significance “because it reaches such pertinent questions as whether he may be assimilated into society and . . . whether he will be personally safe, outside of prison.” (Fain I, supra, 65 Cal.App.3d at p. 393, fn. 14 .) As the parole release date draws near, the need to reassess the chances of successful assimilation and the prospect of safe release becomes critical, and such a reassessment, if undertaken, cannot meaningfully be made on the basis of information gathered years before. Increased opposition to release, especially from the geographic area into which release is planned, could be of paramount importance to a reconsideration. Similarly, public support for, or decreased opposition to, such releases could be important. It would be unrealistic to expect that public interest is frozen in intensity for all time as of the date when it is first voiced and considered. I believe that any significant increase or decrease in public interest should be accorded consideration by the board as new information which is relevant to the decision whether to let a scheduled parole release date stand.

Second, a mere change in the number of signatures tells little about the assimilation and safety factors just discussed. Meaningful inquiry requires looking at the geographic location of those who signed the petition. Moreover, limiting the inquiry into the number of signatures, even from the area of proposed release, focuses too much on quantity and ignores the quality of information brought to light in the course of public outcry. In this case, for example, information came to the board from the public in the form of correspondence and oral testimony, not just from the petition itself. The importance of this kind of information, much of which can be characterized as part of the public outcry , is neither made greater nor diminished by the length of any petition.

For the foregoing reasons, I must conclude that the board properly considered the evidence of renewed public outrage as new information and, consis *319 tent with Fain I, found good cause in that information to rescind Fain’s parole release date. 5

I would reverse the trial court’s order and discharge the writ.

A petition for a rehearing was denied February 14, 1983, and appellant’s petition for a hearing by the Supreme Court was denied March 23, 1983. Grodin, J., did not participate therein. Richardson, J., was of the opinion that the petition should be granted.

The Board of Prison Terms is the successor to the Adult Authority.

Hereafter pertinent sections of the California Administrative Code, title 15, shall be referred to as Parole Board Rules.

One might well understand the concerns of these witnesses as well as that of the parole board when Mr. Fain’s criminal activities are recalled: On June 19, 1967, he caused the car driven by young Mark Ulrich, an Oakdale High School student, to stop, killed Mark with a shotgun blast fired at short range, ordered the two young high school girl passengers out of Mark’s car and into his car, drove them to a remote field where, at gun point, he forced them to disrobe and then committed various sexual acts upon their persons. For these crimes he was convicted of first degree murder, forcible rape, forcible sex perversion and kidnaping. He was also convicted of raping a Mrs. Hayes and of attempting to kidnap a Mrs. Workman. His death sentence was later reduced to life imprisonment. (People v. Fain (1969) 70 Cal.2d 588 [ 75 Cal.Rptr. 633 , 451 P.2d 65 ].) Thereafter, in the company of fellow inmates who overpowered their guards, he escaped from the Stanislaus County jail, was recaptured and subsequently convicted of the crimes of escape, kidnaping and armed robbery. (People v. Fain (1971) 18 Cal.App.3d 137 [ 95 Cal.Rptr. 562 ].)

I have no quarrel with the holding or rationale of Sellars v. Procunier (9th Cir. 1981) 641 F.2d 1295 , cited by the majority. There, in holding that state parole board officials were entitled to absolute immunity from civil rights actions (brought under 42 U.S.C. § 1983 ) by prisoners in connection with parole decisions, the court reasoned, “Just as the decision-making process of judges must be kept free from fear, so must that of parole board officials. Without this protection, there is the same danger that the decision-maker might not impartially adjudicate the often difficult cases that come before them. ” (Id., at p. 1303.) Fear of personal liability and inconvenience from litigation, however, is markedly different from the more remote public pressure at work here, which does not directly threaten a parole board official’s pocketbook. Also, a parole board official is not elected or appointed to his or her position by the public, so there is no immediate fear of public reprisal.

Winsett v. McGinnes (3d Cir. 1980) 617 F.2d 996 , a case heavily relied on by the majority, is distinguishable. In Winsett , Delaware prison officials denied work release status to a prisoner whose crime of murder had aroused “a pervasive public outrage throughout the state” (p. 999) and whose imminent work release was met with “increasingly evident” public opposition manifested, in part, by a letter from a state senator demanding reconsideration and retraction of steps already taken toward release (p. 1000). A prison official who subsequently vetoed one of the prisoner’s applications admitted at trial that the prisoner would have gone on work release but for “intense legislative pressure.” (P. 1002.) In sustaining the prisoner’s procedural due process challenge to denial of his work release applications, the Winsett majority determined that the board’s “lurking fear” of unfavorable public reaction and legislative reprisal had “no place ... in the exercise of discretion whether to grant or deny a prisoner work release under the regulatory provisions” governing the program. (Id., at p. 1007.)

Although Winsett and the instant case are factually similar in many ways, the board in Winsett did not ground its decision on assimilation, safety or other considerations which were relevant to the prisoner’s release. Indeed, the court noted that the board would have been justified in relying on certain “relevant considerations—among which [were] . . . included the prognosis for the inmate’s behavioral adjustment, the risk of flight, and the inmate’s personal safety,” even though those considerations were not specified in the regulations. ( 617 F.2d at p. 1007 .) Thus, what the majority in Winsett objected to was the board’s sole reliance on the mere fact of public and legislative outrage, a situation different from the case before us.

Moreover, the dissent in Winsett convincingly argued that public opinion did have a place in the bounds of the board’s discretion since Delaware legislation requires the board to consider detriment to the community or the inmate and (as in California) information from the public, including testimony of the immediate family of the victim. (Id., at pp. 1014-1015 (dis. opn. Weis, J.).)

Like the majority, I find it unnecessary to reach Fain’s ex post facto contention. Fain urges that application of the board’s “newly developed ‘public outcry doctrine’ ” to his case runs afoul of the prohibition against ex post facto laws. For reasons set forth above, however, I have concluded that the board rescinded Fain’s parole based upon good cause rather than public outcry per se, and I concur in the majority’s observation that, notwithstanding the very recent case of In re Stanworth, supra, 33 Cal.3d 176 , mere rescission of parole based upon good cause does not amount to an ex post facto violation. (See maj. opn., ante, at pp. 311-312, fn. 6.)