Case: 2:05-cv-830 As of: 11/06/2017 01:21 PM PST 1 of 50
CIVIL,CLOSED
U.S. District Court Eastern District of California − Live System (Sacramento) CIVIL DOCKET FOR CASE #: 2:05−cv−00830−MCE−CKD

Paul Madden, et al., v. Fisher, et al., Assigned to: Chief Judge Morrison C. England, Jr Referred to: Magistrate Judge Carolyn K. Delaney Case in other court: USCA, 10−15471
USCA, 14−15613
USCA, 14−15680 Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 04/27/2005 Date Terminated: 05/09/2017 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Richard M. Gilman TERMINATED: 09/22/2016

represented by Carter Capps White King Hall Civil Rights Clinic UC Davis School of Law One Shields Avenue, Bldg. TB 30 Davis, CA 95616 530−752−5440 Fax: 530−752−5788 Email: ccwhite@ucdavis.edu LEAD ATTORNEY ATTORNEY TO BE NOTICED

David M. Porter , FD Office of the Federal Defender 801 I Street 3rd Floor Sacramento, CA 95814 (916) 498−5700 x241 Fax: (916) 498−5710 Email: david_porter@fd.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Matthew McCrary Scoble Office of the Federal Defenders 801 I Street 3rd Floor Sacramento, CA 95814 916−498−5700 Fax: 916−498−5710 Email: matthew_scoble@fd.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Monica Knox Office Of The Federal Defender 801 I Street 3rd Floor Sacramento, CA 95814 916−498−5700 Fax: 916−498−5710 Email: monica_knox@fd.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ann Catherine McClintock Federal Defenders Office 801 I Street 3rd Floor

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Sacramento, CA 95814 (916) 498−5700 Fax: (916) 498−5710 Email: ann_mcclintock@fd.org ATTORNEY TO BE NOTICED

Daniel J. Broderick Federal Defender's Office 801 I Street Third Floor Sacramento, CA 95814 (916) 498−5700 Fax: (916) 498−5710 Email: linda_harter@fd.org TERMINATED: 03/01/2013

Plaintiff
Michael J. Brodheim TERMINATED: 07/27/2005

represented by Phillip L. Arthur Office Of The Attorney General 1300 I Street, Ste 125 P.O. Box 944255 Sacramento, CA 94244 916−322−0032 Fax: 916−327−8643 Email: Phillip.Arthur@doj.ca.gov TERMINATED: 12/17/2008

Plaintiff Paul Madden

represented by Ann Catherine McClintock (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Carter Capps White (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.
Defendant
BPT Commissioner M. Perez BPT Commissioner & Chairperson TERMINATED: 07/26/2006

represented by Christopher John Rench Office of the Attorney General 1300 I Street Sacramento, CA 95814 916−210−7661 Fax: 916−322−8288 Email: christopher.rench@doj.ca.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Maria G. Chan California Attorney General's Office 1300 I Street Sacramento, CA 95814 (916) 323−1940 Fax: (916) 322−8288 Email: maria.chan@doj.ca.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sara Romano

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Office Of The California Attorney General 455 Golden Gate Avenue Suite 11000 San Francisco, CA 94102 415−703−5718 Fax: 415−703−5843 Email: sara.romano@doj.ca.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephen Acquisto California Attorney General's Office 1300 I Street Sacramento, CA 95835 (916) 324−1456 Fax: (916) 324−5205 Email: stephen.acquisto@doj.ca.gov TERMINATED: 05/25/2007

Defendant
Arnold Schwarzenegger Governor

represented by Maria G. Chan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher John Rench (See above for address) ATTORNEY TO BE NOTICED

Glen A. Williams Rivera & Associates 1425 River Park Drive, Suite 250 Sacramento, CA 95815 916−922−1200 Fax: 916−922−1303 Email: glen@jmr−law.net TERMINATED: 12/07/2011

Jennifer Anne Neill Office of the Attorney General Criminal 1300 I Street P.O. Box 944255 Sacramento, CA 94244−2550 (916) 324−4361 Fax: (916) 322−8288 Email: jennifer.neill@doj.ca.gov ATTORNEY TO BE NOTICED

Michael William Pott Porter Scott 350 University Avenue Suite 200 P.O. Box 255428 Sacramento, CA 95825 (916) 929−1481 x333 Fax: (916) 927−3706 Email: mpott@porterscott.com TERMINATED: 12/07/2011

Phillip L. Arthur (See above for address) TERMINATED: 12/17/2008

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Sara Romano (See above for address) ATTORNEY TO BE NOTICED

Stephen Acquisto (See above for address) TERMINATED: 05/25/2007

Terence John Cassidy Porter Scott, APC 350 University Avenue Suite 200 Sacramento, CA 95825 (916) 929−1481 x316 Fax: (916) 927−3706 Email: tcassidy@porterscott.com TERMINATED: 12/07/2011

Defendant
Noreen Blonien Board of Prison Terms Deouty Commissioner

represented by Maria G. Chan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher John Rench (See above for address) ATTORNEY TO BE NOTICED

Jennifer Anne Neill (See above for address) ATTORNEY TO BE NOTICED

Michael William Pott (See above for address) TERMINATED: 12/07/2011

Phillip L. Arthur (See above for address) TERMINATED: 12/17/2008

Sara Romano (See above for address) ATTORNEY TO BE NOTICED

Stephen Acquisto (See above for address) TERMINATED: 05/25/2007

Terence John Cassidy (See above for address) TERMINATED: 12/07/2011

Defendant
L Dininni Board of Prison Term Deputy Commissioner

represented by Maria G. Chan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher John Rench (See above for address) ATTORNEY TO BE NOTICED

Jennifer Anne Neill Office of the Attorney General

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1300 I Street P.O. Box 944255 Sacramento, CA 94244−2550 (916) 324−4361 Fax: (916) 322−8288 Email: jennifer.neill@doj.ca.gov ATTORNEY TO BE NOTICED

Michael William Pott (See above for address) TERMINATED: 12/07/2011

Sara Romano (See above for address) ATTORNEY TO BE NOTICED

Stephen Acquisto (See above for address) TERMINATED: 05/25/2007

Terence John Cassidy (See above for address) TERMINATED: 12/07/2011

Defendant
Jones Moore Board of Prison Terms

represented by Maria G. Chan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher John Rench (See above for address) ATTORNEY TO BE NOTICED

Jennifer Anne Neill (See above for address) ATTORNEY TO BE NOTICED

Michael William Pott (See above for address) TERMINATED: 12/07/2011

Sara Romano (See above for address) ATTORNEY TO BE NOTICED

Stephen Acquisto (See above for address) TERMINATED: 05/25/2007

Terence John Cassidy (See above for address) TERMINATED: 12/07/2011

Defendant
Booker Welch Board of Prison Terms Commissioner

represented by Maria G. Chan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher John Rench (See above for address) ATTORNEY TO BE NOTICED

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Jennifer Anne Neill (See above for address) ATTORNEY TO BE NOTICED

Michael William Pott (See above for address) TERMINATED: 12/07/2011

Phillip L. Arthur (See above for address) TERMINATED: 12/17/2008

Sara Romano (See above for address) ATTORNEY TO BE NOTICED

Stephen Acquisto (See above for address) TERMINATED: 05/25/2007

Terence John Cassidy (See above for address) TERMINATED: 12/07/2011

Defendant
Dennis Kenneally TERMINATED: 06/06/2008

represented by Christopher John Rench (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Maria G. Chan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sara Romano (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael William Pott (See above for address) TERMINATED: 12/07/2011

Phillip L. Arthur (See above for address) TERMINATED: 12/17/2008

Stephen Acquisto (See above for address) TERMINATED: 05/25/2007

Defendant
Susan Fisher TERMINATED: 06/06/2008

represented by Christopher John Rench (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Maria G. Chan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sara Romano

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(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Phillip L. Arthur (See above for address) TERMINATED: 12/17/2008

Stephen Acquisto (See above for address) TERMINATED: 05/25/2007

Defendant Board of Parole Hearings

represented by Maria G. Chan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher John Rench (See above for address) ATTORNEY TO BE NOTICED

Jennifer Anne Neill (See above for address) ATTORNEY TO BE NOTICED

Michael William Pott (See above for address) TERMINATED: 12/07/2011

Phillip L. Arthur (See above for address) TERMINATED: 12/17/2008

Sara Romano (See above for address) ATTORNEY TO BE NOTICED

Stephen Acquisto (See above for address) TERMINATED: 05/25/2007

Defendant M. Hochino

represented by Maria G. Chan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher John Rench (See above for address) ATTORNEY TO BE NOTICED

Jennifer Anne Neill (See above for address) ATTORNEY TO BE NOTICED

Michael William Pott (See above for address) TERMINATED: 12/07/2011

Phillip L. Arthur (See above for address) TERMINATED: 12/17/2008

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Sara Romano (See above for address) ATTORNEY TO BE NOTICED

Terence John Cassidy (See above for address) TERMINATED: 12/07/2011

Defendant J. Davis

represented by Maria G. Chan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher John Rench (See above for address) ATTORNEY TO BE NOTICED

Jennifer Anne Neill (See above for address) ATTORNEY TO BE NOTICED

Michael William Pott (See above for address) TERMINATED: 12/07/2011

Phillip L. Arthur (See above for address) TERMINATED: 12/17/2008

Sara Romano (See above for address) ATTORNEY TO BE NOTICED

Terence John Cassidy (See above for address) TERMINATED: 12/07/2011

Defendant Edmund G. Brown, Jr.

represented by Christopher John Rench (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Maria G. Chan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sara Romano (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Unknown Richard Berk

represented by Richard Berk , NCAED The Wharton School, University of Pennsylvania Statistics Department 400 Jon M. Huntsman Hall

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3730 Walnut Street Philadelphia, PA 19104−6340 215−746−3619 Email: berkr@wharton.upenn.edu ATTORNEY TO BE NOTICED

Movant
David Scott Curtis TERMINATED: 01/10/2011

Movant
Darrel King TERMINATED: 08/17/2011

represented by Darrel King C−31656 KERN VALLEY STATE PRISON (5101) PO BOX 5101 DELANO, CA 93216 PRO SE

Movant
Timothy Leang Jones TERMINATED: 08/17/2011

represented by Timothy Leang Jones B−71557 KERN VALLEY STATE PRISON (5101) PO BOX 5101 DELANO, CA 93216 PRO SE

Movant
Karimi Sutton TERMINATED: 12/28/2011

represented by Karimi Sutton J−71244 KERN VALLEY STATE PRISON (5101) PO BOX 5101 DELANO, CA 93216 PRO SE

V. Intervenor Keith Augustine

Date Filed 04/27/2005 04/27/2005 04/27/2005 05/13/2005 05/16/2005 05/23/2005
07/01/2005

# Docket Text
1 COMPLAINT against all defendants, filed by Richard M Gilman.(Kirkpatrick, S) (Entered: 04/27/2005)
2 MOTION to PROCEED IN FORMA PAUPERIS by Richard M Gilman. (Kirkpatrick, S) (Entered: 04/27/2005)
3 PRISONER NEW CASE DOCUMENTS ISSUED; (Attachments: # 1 Litigant Letter) (Kirkpatrick, S) (Entered: 04/27/2005)
RECEIPT number 2049032 for $250.00 for civil case filing fee from CA Medical Facility for Gilman (Marcotte, D) (Entered: 05/13/2005)
4 DECLINE to PROCEED BEFORE US MAGISTRATE JUDGE by Richard M Gilman. (Dotson, B) (Entered: 05/17/2005)
5 FIRST AMENDED COMPLAINT filed by Richard Gilman and Michael Brodheim against Noreen Blonien, L Dininni, Jones Moore, Booker Welch, M. Perez and Arnold Schwartzenegger. (Servantes, G) (Entered: 05/24/2005)
6 REQUEST (MOTION) for Court to direct that service of Complaint be effected by the US Marshall by Richard M. Gilman. (Servantes, G) (Entered: 07/05/2005)

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07/13/2005 07/13/2005 07/13/2005 07/13/2005 07/18/2005 07/18/2005 07/20/2005 07/20/2005 07/27/2005
07/27/2005 08/04/2005 10/27/2005
10/27/2005 10/27/2005 10/27/2005 11/01/2005

7 ORDER signed by Judge Gregory G. Hollows on 7/12/05. Plaintiff shall submit, w/in 30 days from date of Order, an Affidavit in support if Request to Proceed IFP on form provided. Clerk directed to send plaintiff an Application to Proceed IFP by a Prisoner.(Marciel, M) (Entered: 07/13/2005)
SERVICE BY MAIL: 7 Order served on Michael J Brodheim, Richard M. Gilman (w/IFP Application sent to plaintiffs). (Marciel, M) Modified on 7/13/2005 (Marciel, M). (Entered: 07/13/2005)
8 REQUEST (MOTION) to modify plaintiffs' request for court to direct service of complaint by USM filed by Michael J. Brodheim and Richard M. Gilman. (Girgis, C) (Entered: 07/14/2005)
9 NOTICE regarding representation of defendant by Michael J. Brodheim and Richard M. Gilman (Girgis, C) (Entered: 07/14/2005)
10 APPLICATION/REQUEST for Screening and an Extension of Time byNoreen Blonien, L Dininni, Jones Moore, Booker Welch, M. Perez with Proposed Order. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Declaration of service)(Acquisto, Stephen) (Entered: 07/18/2005)
11 First Amended MOTION to AMEND/CORRECT signatures Request for Screening and Extension of Time by Noreen Blonien, L Dininni, Jones Moore, Booker Welch, M. Perez. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Declaration of service)(Acquisto, Stephen) (Entered: 07/18/2005)
12 RESPONSE by plaintiffs Michael J Brodheim and Richard M. Gilman to 7 Order. Notice of payment of fees. (Dotson, B) (Entered: 07/21/2005)
13 REQUEST for USM to serve dft Schwarzenegger by Michael J Brodheim, Richard M. Gilman. Notice of confirmation of waiver of service received for dft Welch. (Dotson, B) (Entered: 07/21/2005)
14 ORDER signed by Judge Gregory G. Hollows on 7/26/05. A separate civil action is to opened for plaintiff Michael J. Brodheim. 5 Amended Complaint filed 5/23/05 is DISMISSED. Clerk directed to send each plaintiff a new form for filing a civil rights action and a new IFP Application. Plaintiffs' 6 8 9 13 Requests are VACATED as are those of defendants filed on 7/18/02 10 11 . (Marciel, M) (Entered: 07/27/2005)
SERVICE BY MAIL: 14 Order served on plaintiff Richard M. Gilman (w/copy of Amended Complaint and Prisoner Civil Rights packet). (Marciel, M) (Entered: 07/27/2005)
15 AMENDED COMPLAINT against defendants filed by Richard M. Gilman.(Girgis, C) (Entered: 08/05/2005)
16 ORDER signed by Judge Gregory G. Hollows on 10/26/05. Dfts Perez, Blonien, and Welch must file their response to 8/4/05 amd cmp within 30 days. Clk is directed to issue and send pla 2 summonses and 6 copies of Consent to Proceed before a US Magistrate form with this order. Clk shall serve upon pla a copy of Local Rules of the Court.(Dotson, B) (Entered: 10/27/2005)
17 SUMMONS ISSUED as to *Arnold Schwarzenegger* with answer to complaint due within *20* days. Attorney *Richard M. Gilman, C−47508* *California Medical Facility* *PO Box 2500* *Vacaville, CA 95696−2500*. (Dotson, B) (Entered: 10/27/2005)
18 SUMMONS ISSUED as to *Dennis Kenneally* with answer to complaint due within *20* days. Attorney *Richard M. Gilman, C−47508* *California Medical Facility* *PO Box 2500* *Vacaville, CA 95696−2500*. (Dotson, B) (Entered: 10/27/2005)
SERVICE BY MAIL: 16 Order and 17 , 18 Issued Summons served on Richard M. Gilman with Local Rules and 6 copies of Consent forms. (Dotson, B) (Entered: 10/27/2005)
19 REQUEST (entitled motion) for clarification of 14 Order by Richard M. Gilman. (Caspar, M) (Entered: 11/02/2005)

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11/14/2005 11/14/2005 11/14/2005 11/16/2005 11/21/2005 12/07/2005 12/07/2005 12/07/2005 12/12/2005 12/21/2005 01/11/2006 01/23/2006
01/23/2006
01/23/2006 01/23/2006 01/23/2006 03/01/2006

20 REQUEST for an extension of time and request of court to direct service of complaint to be effected by USM upon dfts' faiure to comply with request for waiver of service by Richard M. Gilman. (Dotson, B) (Entered: 11/15/2005)
21 DECLINE to PROCEED BEFORE US MAGISTRATE JUDGE by Richard M. Gilman. (Dotson, B) (Entered: 11/15/2005)
22 CERTIFICATE of SERVICE by Richard M. Gilman of 20 Request and 21 Decline of Jurisdiction of US Magistrate Judge. (Dotson, B) (Entered: 11/15/2005)
23 SUMMONS RETURNED EXECUTED by Richard M. Gilman. Arnold Schwarzenegger and Dennis Kenneally served on 11/5/2005. (Dotson, B) (Entered: 11/17/2005)
24 ANSWER to AMENDED COMPLAINT by Noreen Blonien, Booker Welch, M. Perez. (Attachments: # 1 Declaration of Service)(Acquisto, Stephen) (Entered: 11/21/2005)
25 REQUEST (Motion) for order directing dft's counsel to honor 14 court's severance of pltfs Gilman from Brodheim by Richard M. Gilman.(Yin, K) (Entered: 12/08/2005)
26 OBJECTIONS (Motion) to 24 dft's demand for jury trial by Plaintiff Richard M. Gilman. (Yin, K) (Entered: 12/08/2005)
27 MOTION for SUMMARY JUDGMENT as to dfts' demand for jury trial by Richard M. Gilman. (Yin, K) (Entered: 12/08/2005)
28 REQUEST for extension of time for service of summons by Richard M. Gilman. Request for USM−285 forms and costs to serve additional dfts. (Dotson, B) (Entered: 12/13/2005)
29 REQUEST for 2 USM forms and a schedule of Marshal fees for service by Richard M. Gilman. (Caspar, M) (Entered: 12/22/2005)
30 MOTION to PROCEED IN FORMA PAUPERIS by Richard M. Gilman. [MAINTAIN ON PAPER] (Dotson, B) (Entered: 01/12/2006)
31 ORDER signed by Judge Gregory G. Hollows on 1/23/06 DENYING 20 Request for Order directing service upon dfts Schwarzenegger and Kenneally by USM, and GRANTING 20 Request for Extension of time to effect service upon dfts Schwarzenegger and Kenneally. Plaintiff must, w/in 60 days, serve process upon defendants Schwarzenegger and Kenneally. Plaintiff must serve dfts w/ a copy of the 10/27/05 order, summons, and 8/4/05 second amended complaint. Plaintiff must also include a copy of this order. The clerk is directed to re−issue and re−send plaintiff, two summons for Schwarzenegger and Kenneally. The clerk shall also send plaintiff one copy of the 8/4/05 second amended complaint, two copies of the Consent and a copy of the order filed on October 27, 2005 with this order.(Donati, J) (Entered: 01/23/2006)
32 SUMMONS ISSUED as to *Arnold Schwarzenegger* with answer to complaint due within *20* days. Attorney *Richard M. Gilman, C−47508* *California Medical Facility* *PO Box 2500* *Vacaville, CA 95696−2500*. (Donati, J) (Entered: 01/23/2006)
33 SUMMONS ISSUED as to *Dennis Kenneally* with answer to complaint due within *20* days. Attorney *Richard M. Gilman, C−47508* *California Medical Facility* *PO Box 2500* *Vacaville, CA 95696−2500*. (Donati, J) (Entered: 01/23/2006)
34 DISCOVERY ORDER signed by Judge Gregory G. Hollows on 1/23/06 ORDERING that discovery in this action be governed by this order and all relevant FRCP and Local Rules.(Donati, J) (Entered: 01/23/2006)
SERVICE BY MAIL: 31 Order, 32 Summons, 33 Summons, 34 Discovery Order, 16 Order, 15 Amended Complaint, and 3 Two Consent Forms served on Richard M. Gilman (Donati, J) (Entered: 01/23/2006)
35 REQUEST (motion) for court to direct service by USM upon dfts' failure to comply with request for waiver of service by Richard M. Gilman. Delaration of Richard M. Gilman. (Dotson, B) (Entered: 03/02/2006)

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03/03/2006 03/08/2006 03/23/2006 03/23/2006 04/04/2006 04/04/2006 04/05/2006 04/17/2006 04/24/2006 04/24/2006 04/24/2006 04/24/2006 05/01/2006 05/04/2006
05/04/2006
05/04/2006

36 FIRST REQUEST for production of documents from dft Welch by Richard M. Gilman (Attachments: # 1 first req for production of documents from dft Perez # 2 first set of interrogatories)(Reader, L) (Entered: 03/06/2006)
37 MOTION to SUBSTITUTE PARTY due to resignation by Richard M. Gilman. (Caspar, M) (Entered: 03/09/2006)
38 ORDER signed by Judge Gregory G. Hollows on 3/22/06. 36 Discovery requests filed by Richard M. Gilman will be placed in the file and disregarded.(Dotson, B) (Entered: 03/23/2006)
SERVICE BY MAIL: 38 Order served on Richard M. Gilman (Dotson, B) (Entered: 03/23/2006)
39 MOTION for SUMMARY JUDGMENT ;Supporting Memorandum of Points and Authorities and Notice by Noreen Blonien, Booker Welch, M. Perez. (Acquisto, Stephen) Modified on 5/7/2007 (Donati, J). (Entered: 04/04/2006)
40 STATEMENT of Undisputed Facts by Defendants Noreen Blonien, Booker Welch, M. Perez re 39 MOTION for SUMMARY JUDGMENT ;Supporting Memorandum of Points and Authorities and Notice. (Attachments: # 1 Declaration of Tom Remy)(Acquisto, Stephen) (Entered: 04/04/2006)
41 MOTION for PROTECTIVE ORDER ;Memorandum of Points and Authorities and Notice by Noreen Blonien, Booker Welch, M. Perez. (Attachments: # 1 Exhibit A,B,C)(Acquisto, Stephen) (Entered: 04/05/2006)
42 MOTION for EXTENSION of time to file oppositions to defendants' 39 motion for summary judgment and defendants' 41 motion for protective order staying discovery by Richard M. Gilman. (Caspar, M) (Entered: 04/18/2006)
43 RESPONSE (Declaration) in OPPOSITION to 39 Motion for Summary Judgment. (Yin, K) (Entered: 04/25/2006)
44 ITEMIZED RESPONSE by Richard M. Gilman to dfts' 40 Statement of Undisputed Facts. (Yin, K) (Entered: 04/25/2006)
45 STATEMENT of Disputed Facts by Plaintiff Richard M. Gilman. (Yin, K) (Entered: 04/25/2006)
46 RESPONSE in OPPOSITION to 41 Motion for Protective Order by pltf. (Yin, K) (Entered: 04/25/2006)
47 LETTER Advising Court of Documents Received from Plaintiff by Defendant which were not Filed at Court by M. Perez (Acquisto, Stephen) Modified on 5/3/2006 (Caspar, M). (Entered: 05/01/2006)
48 ORDER signed by Judge Gregory G. Hollows on 5/3/06 ORDERING that plaintiff's 30 request to proceed IFP is GRANTED, but no filing fee is due, plaintiff having paid in full; service is appropriate as yet unserved defendants: Gov. Arnold Schwarzenegger and Dennis Kenneally; clerk shall send plaintiff 2 USM forms, one summons, and instruction sheet and a copy of the 8/4/05 second amended complaint and the notice of submission of documents to be completed and returned within 30 days from the date of this order. (Caspar, M) Modified on 5/4/2006 (Caspar, M). (Entered: 05/04/2006)
49 ORDER signed by Judge Gregory G. Hollows on 5/3/06 ORDERING that defendants' 4/5/06 41 motion for a protective order staying discovery as to defendants Perez and Welch is GRANTED, subject to a showing by plaintiff within 20 days of the filed date of this order; plaintiff's 4/17/06 42 motion for an extension of time to file his opposition to the 4/4/06 39 motion for summary judgment is GRANTED and plaintiff must file his opposition within 30 days of the filed date of this order; any reply to plaintiff's opposition will be due within 7 days of the filing and service dates. (Caspar, M) (Entered: 05/04/2006)
SERVICE BY MAIL: 48 and 49 Orders, 2 USM forms, an instruction sheet, summons and a copy of the 8/4/04 15 second amended complaint served on Richard M. Gilman. (Caspar, M) (Entered: 05/04/2006)

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05/10/2006 05/11/2006 05/12/2006 05/12/2006 05/12/2006 05/12/2006 05/22/2006 06/02/2006 06/15/2006 06/15/2006 06/23/2006
06/23/2006 07/26/2006
07/26/2006 09/14/2006 09/18/2006 10/02/2006

50 LETTER from plaintiff Richard M. Gilman in response to Deputy Attorney General Acquisto's correspondence. (Marciel, M) (Entered: 05/11/2006)
51 NOTICE of SUBMISSION of DOCUMENTS: 1 comoleted summons, 2 completed USM forms and 3 copies of the 8/4/05 second amended complaint by Richard M. Gilman (Caspar, M) (Entered: 05/12/2006)
52 OPPOSITION to defendants' 4/4/06 39 motion for summary judgment(Caspar, M) (Entered: 05/15/2006)
53 DECLARATION of Richard M. Gilman in SUPPORT OF 52 opposition to defendants' 39 motion of summary judgment. (Caspar, M) (Entered: 05/15/2006)
54 NOTICE of SUBMISSION of DOCUMENTS by Richard M. Gilman in response to 48 Order. (Caspar, M) (Entered: 05/15/2006)
55 MEMORANDUM in SUPPORT OF plaintiff's opposition to defendants' 39 motion for summary judgment by Richard M. Gilman. (Caspar, M) (Entered: 05/15/2006)
56 REPLY BRIEF in Support of 39 Motion for Summary Judgment by Noreen Blonien, Booker Welch, M. Perez. (Acquisto, Stephen) Modified on 5/23/2006 (Donati, J). (Entered: 05/22/2006)
57 REQUEST (Motion) to Strike Parts of Defendants' Reply Brief by Richard M. Gilman. (Donati, J) (Entered: 06/05/2006)
58 REQUEST for ( entitled "Motion" ) for Leave to supplement his Opposition to dfts' Motion for Summary Judgment by pltf Richard M. Gilman. (Marciel, M) (Entered: 06/16/2006)
59 DECLARATION of Michael Brodheim in SUPPORT OF 58 Supplement to Opposition to dfts' Motion for Summary Judgment. (Marciel, M) (Entered: 06/16/2006)
60 ORDER AND ORDER DIRECTING SERVICE BY THE USM without prepayment of costs signed by Judge Gregory G. Hollows on 6/23/06. The Clerk is directed to fwd the instructions for service of process, the completed summons, copies of the 8/4/05 second amended complaint and copies of this order to the USM. Within 10 days from the date of this order, the USM is directed to notify dfts Gov. Arnold Schwarzennegger and Dennis Kenneally of this action. Dfts shall reply to the 8/4/05 second amended complaint within the time provided by the applicable provisions of FRCP 12(a). The Clerk shall serve pltf w/a copy of the lr's of court. (Kastilahn, A) (Entered: 06/23/2006)
SERVICE BY MAIL: 60 Order served on Richard M. Gilman w/copy of lr's. Served USM 60 order and attachments. (Kastilahn, A) (Entered: 06/23/2006)
61 ORDER signed by Judge Gregory G. Hollows on 7/25/06 ORDERING that pltf's 27 "motion for summary judgment" is DISREGARDED as such, and construed, instead, as a motion to strike the jury trial demand from the answer of dfts Blonien, Perez and Welch; as construed, pltf's motion is GRANTED and dfts' demand for a jury trial is STRICKEN from their answer; pltf's 37 motion to substitute a party is GRANTED, Susan Fisher added, M. Perez terminated. Motions terminated.(Yin, K) (Entered: 07/26/2006)
SERVICE BY MAIL: 61 Order served on Richard M. Gilman. (Yin, K) (Entered: 07/26/2006)
62 NOTICE of apparent non−service by USM from plaintiff Richard M. Gilman. (Marciel, M) (Entered: 09/15/2006)
63 Defendants' ANSWER to AMENDED COMPLAINT by Arnold Schwarzenegger, Dennis Kenneally. Attorney Acquisto, Stephen added. (Attachments: # 1 Declaration of Service)(Acquisto, Stephen) (Entered: 09/18/2006)
64 WAIVER of SERVICE returned EXECUTED as to defendants Dennis Kenneally, Arnold Schwarzenegger waiver sent on 9/18/2006, answer due 11/17/2006. (Marciel, M) (Entered: 10/03/2006)

Case: 2:05-cv-830 As of: 11/06/2017 01:21 PM PST 14 of 50

01/23/2007
01/23/2007 01/30/2007
01/30/2007 02/13/2007
02/16/2007 02/23/2007 03/07/2007 03/07/2007 03/27/2007
03/27/2007 03/28/2007 03/28/2007 03/28/2007 03/30/2007 03/30/2007

65 SCHEDULING ORDER signed by Judge Gregory G. Hollows on 1/23/07 ORDERING: Discovery due by 4/20/2007. All Pretrial Motions due by 6/8/2007. Plaintiff's Pretrial Statement due by 9/7/07. Defendant's Pretrial Statement due by 9/21/07. Pretrial Conference is set for 9/28/07, before the magistrate judge. The pretrial conference shall be conducted on the file only, without appearance by either party. Jury Trial set for 12/11/2007 at 10:00 AM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. (Donati, J) (Entered: 01/23/2007)
SERVICE BY MAIL: 65 Scheduling Order served on Richard M. Gilman (Donati, J) (Entered: 01/23/2007)
66 ORDER signed by Magistrate Judge Gregory G. Hollows on 1/29/07. Plaintiff's Motion for Continuance of defendants' 39 MOTION for SUMMARY JUDGMENT is GRANTED and the stay of plaintiff's discovery requests upon defendants Fisher and Welch is LIFTED. Defendants' Motion for Summary Judgment is VACATED from Court's calendar. Defendants Fisher and Welch directed to produce plaintiff, w/in 30 days, only the specific pages of decision portion of parole consideration hearing. Clerk to note in docket that case caption of matter be modified and "Gilman v Perez, et al".(Marciel, M) Modified on 3/28/2007 (Marciel, M). (Entered: 01/30/2007)
SERVICE BY MAIL: 66 Order served on plaintiff Richard M. Gilman. (Marciel, M) (Entered: 01/30/2007)
67 REQUEST for RECONSIDERATION and to STAY Discovery by Board of Parole Hearings, Noreen Blonien, Susan Fisher, L Dininni, Jones Moore, Booker Welch, Arnold Schwarzenegger, Dennis Kenneally re 66 Order. Attorney Acquisto, Stephen added. (Attachments: # 1 Declaration of Service)(Acquisto, Stephen) Modified on 2/14/2007 (Donati, J). (Entered: 02/13/2007)
68 MOTION by Richard M. Gilman requesting Clarification as to status of court's 5/4/06 protective order with respect to discovery. (Donati, J) (Entered: 02/20/2007)
69 REQUEST by plaintiff Richard M. Gilman for Extension to file an Opposition to defendants' 67 Request for Reconsideration. (Marciel, M) (Entered: 02/26/2007)
70 ORDER signed by Judge Lawrence K. Karlton on 3/6/07 ORDERING that, upon reconsideration, the order of the magistrate judge filed 1/30/07 66 is AFFIRMED and Dfts' 2/13/07 motion for a stay of discovery 67 is DENIED. (Engbretson, K.) (Entered: 03/07/2007)
SERVICE BY MAIL: 70 Order served on Richard M. Gilman. (Engbretson, K.) (Entered: 03/07/2007)
71 MOTION for PROTECTIVE ORDER And REQUEST for Additional Time to Comply with Court's January 30, 2007 Order by Noreen Blonien, Susan Fisher, L Dininni, Jones Moore, Booker Welch, Board of Parole Hearings, Arnold Schwarzenegger, Dennis Kenneally. (Attachments: # 1 Declaration # 2 Declaration of Service)(Acquisto, Stephen) Modified on 3/28/2007 (Donati, J). (Entered: 03/27/2007)
72 PROPOSED ORDER re 71 Motion for Protective Order and Request for Additional Time. (Acquisto, Stephen) Modified on 3/28/2007 (Donati, J). (Entered: 03/27/2007)
73 EX PARTE APPLICATION by dfts for an Order Shortening Time on 41 Dfts' Motion for Protective Order and Additional Time; Supporting Declaration of Counsel. (Attachments: # 1 Declaration of Service)(Acquisto, Stephen) Modified on 3/29/2007 (Yin, K). (Entered: 03/28/2007)
74 ORDER signed by Judge Gregory G. Hollows on 3/28/07 ORDERING that 73 Ex Parte Application is DISREGARDED as Moot and Clarifying the Protective order re: 68 Motion to Clarify. (Donati, J) (Entered: 03/28/2007)
SERVICE BY MAIL: 74 Order served on Richard M. Gilman (Donati, J) (Entered: 03/28/2007)
75 MOTION to COMPEL DISCOVERY by Richard M. Gilman. (Yin, K) (Entered: 04/02/2007)
76 MOTION for SANCTIONS and for order compelling production by Richard M. Gilman. (Yin, K) (Entered: 04/02/2007)

Case: 2:05-cv-830 As of: 11/06/2017 01:21 PM PST 15 of 50

03/30/2007 03/30/2007 04/05/2007 04/06/2007
04/06/2007 04/10/2007 04/13/2007 04/23/2007 04/25/2007 05/04/2007 05/25/2007 05/25/2007 05/30/2007 06/06/2007 06/06/2007 06/06/2007

77 DECLARATION (Certification) of pltf Richard M. Gilman. (Yin, K) Modified on 4/2/2007 (Yin, K). (Entered: 04/02/2007)
78 EXHIBITS A−C by Richard M. Gilman. (Yin, K) (Entered: 04/02/2007)
79 REQUEST for Clarification re: telephone conference call by Richard M. Gilman. (Donati, J) (Entered: 04/06/2007)
80 ORDER signed by Judge Gregory G. Hollows on 4/6/07 ORDERING that defendants will produce only the specific pages of the decision portion of parole consideration hearing transcripts. Defense counsel has agreed that any argument that this production does not constitutre a sufficient representative sample is waived. Defendants must produce and make available to plaintiff the transcripts, as set forth in this order, within 30 days of the filed date of this order. Upon service of the transcripts and re−notice of the summary judgment motion, plaintiff will have 30 days to review the production and to file an opposition or supplemental opposition. Transcripts will be stored in a secure location at the prison, preferably in the senior librarian's office in the prison law library. Plaintiff will have full access to the transcripts, but he will only have access while he is in the prison law library. The defendants are to ascertain that plaintiff is GRANTED the most latitude possible to be in the law library to review the records. Defendants will have 15 days, following service of any supplemental opposition by plaintiff to their dispositive motion, to file a reply. Re 71 Motion for Protective Order, 75 Motion to Compel Discovery and 76 Motion for Sanctions. (Donati, J) Modified on 2/26/2008 (Donati, J). (Entered: 04/06/2007)
SERVICE BY MAIL: 80 Order served on Richard M. Gilman (Donati, J) (Entered: 04/06/2007)
81 NOTICE of Dag Acquisto's communication with pltf following telephone conference call with court on the morning of 04/05/07 by Richard M. Gilman. (Manzer, C) (Entered: 04/11/2007)
82 REQUEST (Motion) to Determine Sufficiency of Objections for by Richard M. Gilman. (Donati, J) (Entered: 04/16/2007)
83 MOTION to COMPEL Discovery by Richard M. Gilman. (Donati, J) (Entered: 04/24/2007)
84 MOTION to COMPEL Discovery by Richard M. Gilman. (Yin, K) (Entered: 04/26/2007)
85 RE−NOTICE of 39 Motion for Summary Judgment. (Attachments: # 1 Declaration of Service)(Acquisto, Stephen) Modified on 5/7/2007 (Donati, J). (Entered: 05/04/2007)
86 DESIGNATION of COUNSEL FOR SERVICE. Added attorney Phillip L. Arthur and Phillip L. Arthur for Noreen Blonien and Susan Fisher, attorney Stephen Acquisto terminated (Attachments: # 1 Declaration of Service)(Arthur, Phillip) (Entered: 05/25/2007)
87 JOINDER in Re−Noticed Motion for Summary Judgment by Noreen Blonien, Susan Fisher, Booker Welch, Arnold Schwarzenegger, Dennis Kenneally. (Attachments: # 1 Declaration of Service)(Arthur, Phillip) Modified on 5/29/2007 (Manzer, C). (Entered: 05/25/2007)
88 MEMORANDUM/RESPONSE in OPPOSITION to 83 and 84 motions to compel. Attorney Arthur, Phillip L. added. (Attachments: # 1 Declaration of Service)(Arthur, Phillip) Modified on 5/31/2007 (Manzer, C). (Entered: 05/30/2007)
89 REQUEST for Postponement of Consideration of dfts' motion for summary judgment until dfts turn specific information over to plaintiff by Richard M. Gilman. (Duong, D) (Entered: 06/07/2007)
90 AFFIDAVIT in support of 89 Request for Postponment of Consideration of dfts' motion for summary judgment by Richard M. Gilman. (Duong, D) (Entered: 06/07/2007)
91 REQUEST for Extension of time to submit plt's Supplemental Opposition to dfts' Re−Noticed Motion for Summary Judgment 85 by Richard M. Gilman (Attachments: # 1 Declaration of Richard M. Gilman)(Duong, D) (Entered: 06/07/2007)

Case: 2:05-cv-830 As of: 11/06/2017 01:21 PM PST 16 of 50

06/07/2007
06/07/2007
06/12/2007 06/12/2007 06/19/2007
06/19/2007 06/21/2007 06/29/2007 06/29/2007 07/30/2007
07/30/2007 07/30/2007 07/30/2007 07/30/2007 08/03/2007 08/03/2007 08/06/2007

92 MOTION for SUMMARY JUDGMENT ; Memorandum of Points and Authorities in Support Thereof by Noreen Blonien, Susan Fisher, Booker Welch, Arnold Schwarzenegger, Dennis Kenneally. (Attachments: # 1 Declaration of Service)(Arthur, Phillip) (Entered: 06/07/2007)
93 STATEMENT of Undisputed Facts by Defendants Noreen Blonien, Susan Fisher, Booker Welch, Arnold Schwarzenegger, Dennis Kenneally re 92 MOTION for SUMMARY JUDGMENT ; Memorandum of Points and Authorities in Support Thereof. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Declaration of Service)(Arthur, Phillip) (Entered: 06/07/2007)
94 REPLY to RESPONSE to MOTION by plaintiff re 83 84 MOTIONS to COMPEL. (Cayo, A) (Entered: 06/13/2007)
95 MOTION for EXTENSION of time to file a motion for summary judgment by Michael J. Brodheim. (Anderson, J) (Entered: 06/13/2007)
96 ORDER signed by Judge Gregory G. Hollows on 6/19/07 re 95 MOTION for EXTENSION of time is DENIED as MOOT. Plaintiff to file his supplemental opposition and cross−motion for summary judgment on or before July 9, 2007. (Cayo, A) (Entered: 06/19/2007)
SERVICE BY MAIL: 96 Order served on Richard M. Gilman (Cayo, A) (Entered: 06/19/2007)
97 MOTION for EXTENSION of time to file opposition to 92 MOTION for SUMMARY JUDGMENT by Richard M. Gilman. (Anderson, J) Modified on 6/22/2007 (Anderson, J). (Entered: 06/22/2007)
98 ORDER granting 97 Motion for Extension signed by Judge Gregory G. Hollows on 6/29/07. Pltf shall file his supplemental opposition and cross−motion for summary judgment on or before 7/30/07. (Kastilahn, A) (Entered: 06/29/2007)
SERVICE BY MAIL: 98 Order served on Richard M. Gilman. (Kastilahn, A) (Entered: 06/29/2007)
99 OPPOSITION by plt to dft's 92 MOTION for SUMMARY JUDGMENT. (Attachments: # 1 Supplemental Opposition# 2 Declaration of Richard Gilman# 3 Declaration of Richard M. Gilman# 4 Itemized Response to dft's Statement of Undisputed Facts)(Duong, D) Additional attachment(s) added on 8/3/2007 (Carlos, K). Additional attachment(s) added on 8/9/2007 (Carlos, K). (Entered: 07/31/2007)
100 REQUEST (entitled MOTION) for Postponement of consideration of dft Schwarzenegger's motion for summary judgment 92 by Richard M. Gilman (Duong, D) (Entered: 07/31/2007)
101 MOTION for SUMMARY JUDGMENT by Richard M. Gilman. (Duong, D) (Entered: 07/31/2007)
102 STATEMENT of Undisputed Facts by plt Richard M. Gilman re 101 MOTION for SUMMARY JUDGMENT. (Attachments: # 1 Declaration of Richard M. Gilman# 2 List of Exhibits 1 − 52 Maintained on Paper)(Duong, D) (Entered: 07/31/2007)
103 EXHIBITS 53 − 64 by Richard M. Gilman re 101 MOTION for SUMMARY JUDGMENT. (Attachments: # 1 Exhibits 65 − 75# 2 Exhibits 76− 77# 3 Exhibits 78 − 85)(Duong, D) Modified on 8/1/2007 (Duong, D). (Entered: 07/31/2007)
104 REPLY TO OPPOSITION to 92 dfts motion for summary judgment (Arthur, Phillip) Modified on 8/7/2007 (Becknal, R). Modified on 9/4/2007 (Davis, D). (Entered: 08/03/2007)
105 REPLY BRIEF IN SUPPORT OF dfts renoticed 101 motion for summary judgment (Arthur, Phillip) Modified on 8/7/2007 (Becknal, R). (Entered: 08/03/2007)
106 MOTION TO VACATE Pretrial and Trial Dates; by dfts. (Attachments: # 1 Svc by Mail) (Arthur, Phillip) Modified on 8/7/2007 (Marciel, M). Modified on 8/7/2007 (Becknal, R). (Entered: 08/06/2007)

Case: 2:05-cv-830 As of: 11/06/2017 01:21 PM PST 17 of 50

08/10/2007 08/13/2007 08/14/2007
08/14/2007 08/14/2007
08/20/2007 08/20/2007
08/23/2007 08/27/2007 08/31/2007 09/05/2007
09/05/2007 09/12/2007 09/12/2007 09/12/2007 09/14/2007 09/20/2007 09/20/2007 10/01/2007

107 REQUEST for copies by Richard M. Gilman of Pltf's Statement of Undisputed Facts" [Response Sent: "The Clerks's Office does not provide copies of documents to parties"]. (Reader, L) (Entered: 08/13/2007)
108 RESPONSE in OPPOSITION re 106 MOTION to VACATE pretrial and trial dates (Anderson, J) (Entered: 08/14/2007)
109 ORDER signed by Judge Gregory G. Hollows on 8/13/2007 ORDERING 106 Dfts 8/6/2007 Motion to Vacate the 9/28/2007 Pretrial Conference and 12/11/2007 trial dates set in the 1/23/2007 Scheduling order is GRANTED 65 . The dates for the pretrial conference, for filing pretrial statements, and for a jury trial will be re−set, if appropriate, upon adjudication of the pending dispositive motions. (Reader, L) (Entered: 08/14/2007)
SERVICE BY MAIL: 109 Order on Motion to Vacate, served on Richard M. Gilman (Reader, L) (Entered: 08/14/2007)
110 OPPOSITION by Defendant Arnold Schwarzenegger to 100 Request. for Postponement of Consideration of Schwarzenegger's Motion for Summary Judgment (Attachments: # 1 Declaration of service by mail)(Arthur, Phillip) (Entered: 08/14/2007)
111 MEMORANDUM/RESPONSE in OPPOSITION re 101 MOTION for SUMMARY JUDGMENT. (Attachments: # 1 Declaration of Service)(Arthur, Phillip) (Entered: 08/20/2007)
112 STATEMENT of Disputed and Undisputed Facts by Defendants Noreen Blonien, Susan Fisher, Booker Welch, Arnold Schwarzenegger, Dennis Kenneally re 102 Statement − R. (Attachments: # 1 Declaration of Service)(Arthur, Phillip) (Entered: 08/20/2007)
113 REQUEST by Richard M. Gilman for reconsideration by the district court of magistrate judge's ruling. (Kastilahn, A) (Entered: 08/24/2007)
114 REQUEST by plaintiff Richard M. Gilman for Extension of Time to submit Reply to Opposition for Motion requesting postponement of consideration. (Marciel, M) (Entered: 08/28/2007)
115 MOTION for 30 day EXTENSION OF TIME by plf to file reply to 111 Dft's Opposition to Summary Judgment. (Benson, A) (Entered: 09/04/2007)
116 ORDER signed by Judge Gregory G. Hollows on 9/5/07 partially GRANTING 114 Request for extension of time. Plaintiff is GRANTED 20 days from this date of this order to file his reply. There will be no further extension. (Anderson, J) (Entered: 09/05/2007)
SERVICE BY MAIL: 116 Order served on Richard M. Gilman (Anderson, J) (Entered: 09/05/2007)
117 ORDER signed by Judge Lawrence K. Karlton on 09/11/07 ORDERING that upon reconsideration, 109 Order by Magistrate Judge is AFFIRMED. (Benson, A) (Entered: 09/12/2007)
SERVICE BY MAIL: 117 Order served on Richard M. Gilman (Benson, A) (Entered: 09/12/2007)
118 MOTION to APPOINT COUNSEL by Richard M. Gilman. (Attachments: # 1 Declaration)(Reader, L) (Entered: 09/13/2007)
119 REPLY to RESPONSE to MOTION re 97 MOTION for EXTENSION opposition re 92 MOTION for SUMMARY JUDGMENT. (Kaminski, H) (Entered: 09/17/2007)
120 ORDER signed by Judge Gregory G. Hollows on 9/20/07 DENYING 118 MOTION to APPOINT COUNSEL. (Anderson, J) (Entered: 09/20/2007)
SERVICE BY MAIL: 120 Order, served on Richard M. Gilman (Anderson, J) (Entered: 09/20/2007)
121 REPLY to Dfts' RESPONSE to MOTION re 101 MOTION for SUMMARY JUDGMENT. (Kastilahn, A) (Entered: 10/04/2007)

Case: 2:05-cv-830 As of: 11/06/2017 01:21 PM PST 18 of 50

10/30/2007 01/17/2008 03/07/2008
03/07/2008 03/19/2008 03/31/2008
03/31/2008 04/03/2008
04/03/2008 04/07/2008 05/07/2008 05/16/2008 05/22/2008

122 REQUEST for judicial notice by Richard M. Gilman. (Kastilahn, A) (Entered: 10/31/2007)
123 NOTICE of Citation of Supplemental Authority; Request for Judicial Notice by Richard M. Gilman. (Anderson, J) (Entered: 01/18/2008)
124 ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 3/7/08 ORDERING that plaintiff's 115 motion for a thirty−day extension of timeto file a reply to defendants' opposition to plaintiff's (cross−) motion for summary judgment is DISREGARDED in light of the court's recommendation that the cross−motion be denied. Plaintiff's 89 motion, for a continuance of the renoticed motion for summary judgment brought by defendants Blonien, Fisher, Welch and Kenneally is DENIED. Plaintiff's 82 "motion to determine sufficiency of objections," construed as a motion to compel discovery, is DENIED as moot. Plaintiff's 83 motion to compel discovery, filed on April 23, 2007 is DENIED. Plaintiff's 84 motion to compel discovery is DENIED as moot. It is RECOMMENDED that the 39 motion for summary judgment, filed on April 4, 2006, and renoticed on May 4, 2007 85 by defendants Blonien, Welch and Perez (now Fisher), in which defendant Kenneally joined on May 25, 2007 87 be denied. Defendant Schwarzenegger's 92 motion for summary judgment, filed on June 7,2007, be denied. Plaintiff's 101 (cross−) motion for summary judgment be denied. This matter be set for a bench trial. Objections due within 20 days after being served with these findings and recommendations. Any reply to the objections due within ten days after service of the objections. (Duong, D) Modified on 3/11/2008 (Duong, D). (Entered: 03/07/2008)
SERVICE BY MAIL: 124 Order and Findings and Recommendations served on Richard M. Gilman. (Duong, D) (Entered: 03/07/2008)
125 OBJECTIONS to FINDINGS and RECOMMENDATIONS 124 by Defendants Noreen Blonien, Susan Fisher, Booker Welch, Arnold Schwarzenegger, Dennis Kenneally. [Objections to Magistrate Judge's Findings and Recommendations] (Arthur, Phillip) (Entered: 03/19/2008)
126 ORDER ADOPTING in FULL 124 FINDINGS and RECOMMENDATIONS, signed by Senior Judge Lawrence K. Karlton on 3/31/08. Motion 39 for summary judgment filed on 4/4/06 and renoticed on 5/4/07 85 by dfts Blonien, Welch and Perez (now Fisher), in which dft Kenneally joined on 5/25/07 87 is DENIED. Dft Schwarzenegger's motion 92 for summary judgment is DENIED. Pltf's cross−motion 101 for summary judgment is DENIED. This matter will be set for bench trial. (Kastilahn, A) (Entered: 03/31/2008)
SERVICE BY MAIL: 126 Order Adopting Findings and Recommendations served on Richard M. Gilman. (Kastilahn, A) (Entered: 03/31/2008)
127 FURTHER SCHEDULING ORDER signed by Magistrate Judge Gregory G. Hollows on 4/3/08. Plaintiff shall file and serve his Pretrial Statement and any Motions necessary to obtain attendance of witnesses on or before 6/6/08. Defendants shall file their Pretrial Statement or or before 6/20/08. Pretrial Conference set for 6/27/08 before Magistrate Judge Hollows and shall be conducted on file ONLY. The dates for Trial Confirmation Hearing and Bench Trial will be set in Pretrial Order. (Marciel, M) (Entered: 04/03/2008)
SERVICE BY MAIL: 127 Further Scheduling Order served on plaintiff Richard M. Gilman. (Marciel, M) (Entered: 04/03/2008)
128 REPLY to defendants' 125 Objections to Findings and Recommendations by Richard M. Gilman. (Becknal, R) (Entered: 04/08/2008)
129 REQUEST for for Substitution of Parties by Noreen Blonien, Susan Fisher, Booker Welch, Arnold Schwarzenegger, Dennis Kenneally. (Attachments: # 1 Proposed Order)(Arthur, Phillip) Modified on 5/8/2008 (Anderson, J). (Entered: 05/07/2008)
130 REQUEST for clarification as to 127 Order by Richard M. Gilman. (Becknal, R) (Entered: 05/19/2008)
131 PLAINTIFF'S RESPONSE to defendants' 129 Request for party substitution by Richard M. Gilman. (Becknal, R) (Entered: 05/23/2008)

Case: 2:05-cv-830 As of: 11/06/2017 01:21 PM PST 19 of 50

05/27/2008 05/27/2008 05/30/2008 06/02/2008
06/06/2008 06/11/2008 06/12/2008
06/20/2008
07/18/2008 07/22/2008 09/22/2008 09/25/2008 10/07/2008 10/08/2008 10/10/2008

132 ORDER signed by Magistrate Judge Gregory G. Hollows on 5/27/2008 re 130 Request for Clarification filed by Richard M. Gilman.(Matson, R) (Entered: 05/27/2008)
SERVICE BY MAIL: 132 Order served on Richard M. Gilman. (Matson, R) (Entered: 05/27/2008)
133 MOTION to APPOINT COUNSEL by Richard M. Gilman. Attorney White, Carter Capps added. (Attachments: # 1 Declaration of Carter C. White # 2 Proposed Order) (White, Carter) Modified on 6/9/2008 (Marciel, M). (Entered: 05/30/2008)
134 ORDER signed by Magistrate Judge Gregory G. Hollows on 06/02/08 GRANTING 133 Motion to Appoint Counsel; Appointed Carter C. White and David M. Porter for Richard M. Gilman; the Clerk shall make available to counsel a copy of the file; counsel shall submit all deposition transcript costs for payment; the court's 04/03/08 127 further scheduling order, including the requirements for filing pretrial orders, is VACATED. Status Conference set for 6/12/2008 at 10:00 AM in Courtroom 24 (GGH) before Magistrate Judge Gregory G. Hollows.(Manzer, C) (Entered: 06/02/2008)
135 ORDER signed by Magistrate Judge Gregory G. Hollows on 6/3/08 ORDERING that M. Hochino take the place of Dft Kenneally and J. Davis take the place of Dft Fisher. Dfts Kenneally and Fisher are hereby DISMISSED from this action. (Engbretson, K.) (Entered: 06/06/2008)
136 DESIGNATION of COUNSEL FOR SERVICE. Attorneys Jennifer Anne Neill and Phillip L. Arthur added as counsel for defendants for Noreen Blonien, Booker Welch, Arnold Schwarzenegger, M. Hochino, and J. Davis. (Arthur, Phillip) Modified on 6/12/2008 (Marciel, M). (Entered: 06/11/2008)
137 MINUTES (Text Only) for proceedings held before Magistrate Judge Gregory G. Hollows: STATUS CONFERENCE held on 6/12/2008. The court is reluctant to start this case from the beginning but, will allow the Amended Complaint to be filed, if he is to remain in charge of this case. The Court further explains, he is not certain of his role and him or Judge Karlton will issue an order once it has been determined who the case is before. Plaintiffs Counsel Carter White present. Defendants Counsel Jennifer A. Neill and Phillip Arthur present. Court Reporter/CD Number: 1 of 1. (Callen, V) (Entered: 06/12/2008)
138 ORDER signed by Magistrate Judge Gregory G. Hollows on 6/20/08 ORDERING that if plaintiff elects to proceed upon an amended complaint, plaintiff must file a third amended complaint within thirty days. Should plaintiff name additional defendants, as plaintiffs counsel anticipates, counsel is responsible for serving the third amended complaint upon any newly named defendants.(Kastilahn, A) (Entered: 06/20/2008)
139 STIPULATION and PROPOSED ORDER extending time for plaintiff to file Third Amended Complaint by Richard M. Gilman. (White, Carter) Modified on 7/23/2008 (Marciel, M). (Entered: 07/18/2008)
140 ORDER signed by Magistrate Judge Gregory G. Hollows on 7/21/08 GRANTING plaintiff 60 days, up to and including 9/22/08 to file a third amended complaint.(Becknal, R) (Entered: 07/22/2008)
141 STIPULATION and PROPOSED ORDER extending time for Plaintiff to file third amended complaint by Richard M. Gilman. (White, Carter) (Entered: 09/22/2008)
142 STIPULATION and ORDER signed by Magistrate Judge Gregory G. Hollows on 09/25/08 GRANTING pltf an additional 14 days up to and including 10/06/08 to file a third amended complaint. (Manzer, C) (Entered: 09/25/2008)
143 THIRD AMENDED COMPLAINT against all defendants by Richard M. Gilman.(White, Carter) (Entered: 10/07/2008)
144 STIPULATION and PROPOSED ORDER to consider Third Amended Complaint as timely filed by Richard M. Gilman. (White, Carter) (Entered: 10/08/2008)
145 MOTION for Screening and Extension of time to file Responsive Pleading. Attorney Arthur, Phillip L. added. (Attachments: # 1 Proposed Order)(Arthur, Phillip) Modified on 10/15/2008 (Becknal, R). (Entered: 10/10/2008)

Case: 2:05-cv-830 As of: 11/06/2017 01:21 PM PST 20 of 50

10/16/2008 10/16/2008 11/17/2008
11/20/2008 12/03/2008 12/08/2008 12/12/2008 12/12/2008 12/15/2008 12/15/2008 12/17/2008
12/19/2008 12/23/2008
12/23/2008

146 ORDER signed by Magistrate Judge Gregory G. Hollows on 10/16/08 ORDERING that dfts' 10/10/08 (# 145) request for the court to screen the third amended complaint is GRANTED. Dfts have 30 days from the date of this order to file a responsive pleading. (Kastilahn, A) (Entered: 10/16/2008)
147 STIPULATION and ORDER 144 to consider the third amended complaint as timely filed, signed by Magistrate Judge Gregory G. Hollows on 10/16/08. (Kastilahn, A) (Entered: 10/16/2008)
148 MOTION for EXTENSION of TIME to FILE ANSWER re 143 Amended Complaint by Noreen Blonien, Booker Welch, Arnold Schwarzenegger, M. Hochino, J. Davis. (Attachments: # 1 Proposed Order Granting Defs EOT to Respond to Third Amended Complaint])(Arthur, Phillip) Modified on 11/18/2008 (Plummer, M). (Entered: 11/17/2008)
149 (VACATED pursuant to order #151) ORDER partially granting 148 Motion for Extension of Time signed by Magistrate Judge Gregory G. Hollows on 11/20/08: Defendants have twenty days from the date of this order to file a responsive pleading. (Kaminski, H) Modified on 12/8/2008 (Becknal, R). (Entered: 11/20/2008)
150 PROPOSED ORDER / Unopposed Request to Vacate Order of November 20, 2008, by Richard M. Gilman. (Porter, David) (Entered: 12/03/2008)
151 ORDER signed by Magistrate Judge Gregory G. Hollows on 12/8/08 ORDERING the the Court's order filed November 20, 2008 149 is VACATED. Plaintiffs shall file their motion for leave and for class certification on or before December 12, 2008. (Becknal, R) (Entered: 12/08/2008)
152 SUBSTITUTION of ATTORNEY − PROPOSED, submitted by Noreen Blonien, Booker Welch, Arnold Schwarzenegger, M. Hochino, J. Davis. (Cassidy, Terence) (Entered: 12/12/2008)
153 PROPOSED ORDER request for extension of one court day re 151 Order, by Richard M. Gilman. (Porter, David) (Entered: 12/12/2008)
154 MOTION to AMEND the COMPLAINT fourth amended/supplemental complaint by Richard M. Gilman. Motion Hearing set for 1/12/2009 at 10:00 AM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. (Attachments: # 1 Exhibit lodged fourth amended/supplemental complaint)(Porter, David) (Entered: 12/15/2008)
155 MOTION to CERTIFY CLASS by Richard M. Gilman. Motion Hearing set for 1/12/2009 at 10:00 AM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. (Porter, David) (Entered: 12/15/2008)
156 ORDER SUBSTITUTING ATTORNEY signed by Magistrate Judge Gregory G. Hollows on 12/17/2008 ORDERING 152 Attorney Terence John Cassidy for Noreen Blonien, Booker Welch, Arnold Schwarzenegger, M. Hochino and J. Davis, attorney Phillip L. Arthur and Jennifer Anne Neill terminated. (Reader, L) Modified on 12/17/2008 (Reader, L). (Entered: 12/17/2008)
157 MOTION for PRELIMINARY INJUNCTION by Richard M. Gilman. Motion Hearing set for 1/12/2009 at 10:00 AM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. (Attachments: # 1 Exhibit 1)(Porter, David) (Entered: 12/19/2008)
158 ORDER signed by Senior Judge Lawrence K. Karlton on 12/23/08 ORDERING that the hearings on motions 154 , 155 and 157 are CONTINUED to January 30, 2009 at 10 AM. Oppositions or statements of non−opposition SHALL be filed not later than January 5, 2009. Replies, if any, SHALL be filed not later than January 12, 2009; The referral of discovery to the magistrate judge remains in effect. All law and motion practice shall be set for hearing before the undersigned. The parties shall refer to the case in future filings as No. Civ. 2:05−cv−00830 LKK/GGH, dropping the P designation at the end.(Becknal, R) (Entered: 12/23/2008)
159 STIPULATION and PROPOSED ORDER for Stipulation and Order to Extend Briefing Schedule for Motions to Amend Complaint, For Class Certification and For Preliminary Injunction by Noreen Blonien, L Dininni, Jones Moore, Booker Welch, Arnold Schwarzenegger, M. Hochino, J. Davis. Attorney Cassidy, Terence John added. (Cassidy, Terence) (Entered: 12/23/2008)

Case: 2:05-cv-830 As of: 11/06/2017 01:21 PM PST 21 of 50

01/05/2009 01/09/2009 01/09/2009
01/09/2009 01/09/2009
01/09/2009 01/09/2009 01/09/2009
01/15/2009 01/16/2009 01/16/2009
01/16/2009 01/16/2009 01/16/2009

160 STIPULATION and ORDER re 159 signed by Senior Judge Lawrence K. Karlton on 1/5/09. Responses to Motion to Amend Complaint 154 , Motion for Class Certification 155 , and Motion for Prelim Injunction 157 are DUE by 1/9/09. Reply briefs, if any, are DUE by 1/16/09.(Kastilahn, A) (Entered: 01/05/2009)
161 DESIGNATION of COUNSEL FOR SERVICE to add Monica Knox for Richard M. Gilman. (Knox, Monica) Modified on 1/12/2009 (Matson, R). (Entered: 01/09/2009)
162 MOTION to STRIKE Defendants' Related Motion/CounterMotion to Strike Third Amended Complaint by Noreen Blonien, L Dininni, Jones Moore, Booker Welch, Arnold Schwarzenegger, M. Hochino, J. Davis. Motion Hearing set for 1/30/2009 at 10:00 AM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. (Cassidy, Terence) (Entered: 01/09/2009)
163 OPPOSITION by Noreen Blonien, L Dininni, Jones Moore, Booker Welch, Arnold Schwarzenegger, M. Hochino, J. Davis. Defendants' Opposition to Plaintiffs' Motion for Preliminary Injunction (Cassidy, Terence) (Entered: 01/09/2009)
164 MOTION to STRIKE Defendants' Motion to Strike Portions of Plaintiffs' Motion for Preliminary Injunction by Noreen Blonien, L Dininni, Jones Moore, Booker Welch, Arnold Schwarzenegger, M. Hochino, J. Davis. Motion Hearing set for 1/30/2009 at 10:00 AM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. (Cassidy, Terence) (Entered: 01/09/2009)
165 OPPOSITION by Noreen Blonien, L Dininni, Jones Moore, Booker Welch, Arnold Schwarzenegger, M. Hochino, J. Davis. Defendants' Opposition to Plaintiffs' Motion for Leave to File Fourth Amended/Supplemental Complaint (Cassidy, Terence) (Entered: 01/09/2009)
166 OPPOSITION by Noreen Blonien, L Dininni, Jones Moore, Booker Welch, Arnold Schwarzenegger, M. Hochino, J. Davis. Defendants' Opposition to Plaintiffs' Motion for Class Certification (Cassidy, Terence) (Entered: 01/09/2009)
167 DECLARATION of Declaration of Terence J. Cassidy in Support of Defendants' Oppositions to Plaintiffs' Motions for Leave to File Fourth Amended/Supplemental Complaint, Class Certification, and Preliminary Injunction re 166 Opposition to Motion, 163 Opposition to Motion, 165 Opposition to Motion. (Cassidy, Terence) (Entered: 01/09/2009)
168 NOTICE of Unavailability of Counsel by Noreen Blonien, L Dininni, Jones Moore, Booker Welch, Arnold Schwarzenegger, M. Hochino, J. Davis. (Cassidy, Terence) (Entered: 01/15/2009)
169 REPLY/RESPONSE by Richard M. Gilman re 166 Opposition to Motion. Plaintiffs' Reply to Opposition to Class Certification (Knox, Monica) (Entered: 01/16/2009)
170 PLAINTIFF'S OPPOSITION to 164 to Motion to Strike Portions of Motion for Preliminary Injunction by Richard M. Gilman. (Attachments: # 1 Declaration of Monica Knox; Transcript 2000 Parole Hrg; Transcript 2002 Parole Hrg, # 2 Transcript 2003 Parole Hrg; Transcript 2005 Parole Hrg, # 3 Transcript 2006 Parole Hrg; Transcript 2007 Parole Hrg; CDC/BPH Psychological Evaluations, # 4 CDC Counselor Reports; District Court & Circuit Court Orders; BOP Terms En Banc Dec of 4/14/04; Governor's Dec Reversing Parole Grant−5/13/04; Governor's Dec Reversing Parole Grant−5/2/08; L.A. Sup Crt Ord; BOP Hrg's Opening Brief on Appeal)(Knox, Monica) Modified on 1/20/2009 (Becknal, R). (Entered: 01/16/2009)
171 REPLY by Richard M. Gilman to RESPONSE to 157 Motion for Preliminary Injunction. (Porter, David) Modified on 1/20/2009 (Becknal, R). (Entered: 01/16/2009)
172 REPLY to Opposition to 154 Motion for Leave to File Fourth Amended/Supplemental Complaint by Richard M. Gilman . (Porter, David) Modified on 1/20/2009 (Becknal, R). (Entered: 01/16/2009)
173 OPPOSITION to motion/countermotion 162 to strike third amended complaint by Richard M. Gilman. (Porter, David) Modified on 1/20/2009 (Becknal, R). (Entered: 01/16/2009)

Case: 2:05-cv-830 As of: 11/06/2017 01:21 PM PST 22 of 50

01/23/2009 01/29/2009 01/30/2009
02/06/2009
02/06/2009 02/09/2009 02/09/2009 02/25/2009 03/04/2009 03/04/2009 03/18/2009 03/19/2009 03/20/2009 03/30/2009

174 REPLY by Noreen Blonien, L Dininni, Jones Moore, Booker Welch, Arnold Schwarzenegger, M. Hochino, J. Davis to OPPOSITION to Motion to Strike Portions of Motion for Preliminary Injunction 162 (Cassidy, Terence) Modified on 1/23/2009 (Reader, L). (Entered: 01/23/2009)
175 CORRECTED 154 FOURTH AMENDED/SUPPLEMENTAL COMPLAINT by Richard M. Gilman. (Porter, David) Modified on 1/30/2009 (Engbretson, K.). (Entered: 01/29/2009)
176 MINUTES (Text Only) for proceedings held before Senior Judge Lawrence K. Karlton: MOTION HEARING held on 1/30/2009 re 154 , 155 , 157 , 162 , 164 . After oral argument, the motions stand SUBMITTED. Court order to follow. Plaintiffs Counsel Carter White, Monica Knox, David Porter, Daniel Sharpe (certified law student) present. Defendants Counsel Terence Cassidy present. Court Reporter: C. Bodene. (Rivas, A) (Entered: 02/02/2009)
177 TRANSCRIPT of Proceedings held on 1−30−09, before Senior Judge Lawrence K. Karlton, filed by Court Reporter Cathie Bodene, Phone number 916−446−6360 E−mail cbodene@caed.uscourts.gov. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction must be filed within 5 court days. Redaction Request due 2/27/2009. Redacted Transcript Deadline set for 3/9/2009. Release of Transcript Restriction set for 5/7/2009. (Bodene, C) (Entered: 02/06/2009)
178 SUPPLEMENT by Noreen Blonien, L Dininni, Jones Moore, Booker Welch, Arnold Schwarzenegger, M. Hochino, J. Davis. Supplemental Evidence in Support of Opposition to Motion for Preliminary Injunction (Cassidy, Terence) (Entered: 02/06/2009)
179 REQUEST for to File Plaintiffs' Reply to Defendants' Supplemental Evidence re: Preliminary Injunction by Richard M. Gilman. (Knox, Monica) (Entered: 02/09/2009)
180 REPLY/RESPONSE to Defendants' Supplemental Evidence re: Preliminary Injunction by Richard M. Gilman. (Attachments: # 1 Case No. SC135399A − Stipulated Procedures, # 2 Lifer Scheduling and Tracking System, # 3 2007 Parole hearing transcript in re: James Masoner)(Knox, Monica) (Entered: 02/09/2009)
181 ORDER signed by Senior Judge Lawrence K. Karlton on 2/25/09 ORDERING that pursuant to the request of plaintiffs, and good cause appearing therefor, plaintiffs shall file their motion for leave and for class certification on or before December 15, 2008. (Becknal, R) (Entered: 02/26/2009)
182 ORDER signed by Senior Judge Lawrence K. Karlton on 3/4/2009 GRANTING plaintiffs' 155 Motion for Class Certification. (Marciel, M) (Entered: 03/04/2009)
183 ORDER signed by Senior Judge Lawrence K. Karlton on 3/4/2009 DENYING defendants' 162 Motion to Strike Third Amended Complaint and GRANTING plaintiffs' 154 Motion for Leave to file a Fourth Amended /Supplemental Complaint. (Marciel, M) (Entered: 03/04/2009)
184 PETITION for Permission to Appeal Class Certification Order by Arnold Schwarzenegger. (Cassidy, Terence) (Entered: 03/18/2009)
185 STIPULATION and PROPOSED ORDER for Extend Time to Respond to Plaintiffs' Fourth Amended Complaint by Arnold Schwarzenegger. (Cassidy, Terence) (Entered: 03/19/2009)
186 STIPULATION and ORDER 185 signed by Senior Judge Lawrence K. Karlton on 03/19/09 ORDERING that the time for Dfts to respond to Pltfs' fourth amended complaint is extended to 3/30/09. (Engbretson, K.) (Entered: 03/20/2009)
187 MOTION to DISMISS plaintiffs' [Corrected] Fourth Amended/Supplemental Complain by Arnold Schwarzenegger. Motion Hearing set for 5/18/2009 at 10:00 AM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. (Attachments: # 1 Memorandum of Points and Authorities, # 2 Request for Judicial Notice) (Cassidy, Terence) Modified on 3/31/2009 (Kaminski, H). (Entered: 03/30/2009)

Case: 2:05-cv-830 As of: 11/06/2017 01:21 PM PST 23 of 50

04/23/2009 05/01/2009 05/11/2009 05/18/2009
06/02/2009 06/02/2009 06/02/2009 06/02/2009 06/03/2009 06/03/2009 06/03/2009
07/02/2009 07/08/2009
07/16/2009 07/16/2009 08/05/2009 08/06/2009 08/11/2009

188 REQUEST by Timothy W. Marion to be added to this action. (Becknal, R) (Entered: 04/24/2009)
189 OPPOSITION by Richard M. Gilman to 187 Motion to Dismiss. (Knox, Monica) Modified on 5/4/2009 (Marciel, M). (Entered: 05/01/2009)
190 REPLY to 189 Opposition to Motion to Dismiss (Cassidy, Terence) Modified on 5/11/2009 (Benson, A.). (Entered: 05/11/2009)
191 MINUTES (Text Only) for proceedings held before Senior Judge Lawrence K. Karlton: MOTION HEARING held on 5/18/2009 re 187 Motion to Dismiss plaintiffs' [Corrected] Fourth Amended/Supplemental Complaint filed by Arnold Schwarzenegger. After oral argument, the matter stands SUBMITTED. Court order to follow. Plaintiffs Counsel David Porter, Monica Knox, Carter White present. Defendants Counsel Terence Cassidy present. Court Reporter: C. Bodene. (Rivas, A) (Entered: 05/21/2009)
RECEIPT number #CAE200017298 $455.00 fbo Arnold Schwarzenegger by Porter Scott on 6/2/2009. (Streeter, J) (Entered: 06/02/2009)
192 ORDER of USCA GRANTING 184 Petition For Permission to Appeal the District Court's 3/4/09 Order. (Streeter, J) (Entered: 06/02/2009)
193 TRANSCRIPT REQUEST by Noreen Blonien, L Dininni, Jones Moore, Booker Welch, Board of Parole Hearings, Arnold Schwarzenegger, M. Hochino, J. Davis (Cassidy, Terence) (Entered: 06/02/2009)
RECEIPT number #CAE200017298 $455.00 fbo Arnold Schwarzenegger by Porter Scott on 6/2/2009. (Streeter, J) Modified on 6/4/2009 (Streeter, J). (Entered: 06/04/2009)
194 CASE CLOSED pursuant to 15 Notice of Voluntary Dismissal under FRCP 41 (a). (TEXT ONLY ENTRY) (Donati, J) (Entered: 06/03/2009)
195 CLERK'S NOTICE of DOCKET CORRECTION: PLEASE DISREGARD 194 CASE CLOSED NOTICE. Case remains open and pending. 194 Notice docketed in the incorrect case. (TEXT ONLY ENTRY) (Donati, J) (Entered: 06/03/2009)
197 APPEAL PROCESSED to Ninth Circuit Filed dates for Notice of Appeal *6/2/2009*, Complaint *4/27/2005* and Appealed Order / Judgment *3/4/2009*. Court Reporter: *C. Bodene*. *Fee Status: Paid on 6/2/2009 in the amount of $455.00* ** (Attachments: # 1 Appeal Notice) (Duong, D) (Entered: 06/03/2009)
198 STIPULATION and PROPOSED ORDER for extending time for service of 175 Corrected Fourth Amended/Supplemental Complaint by Richard M. Gilman. (White, Carter) Modified on 7/8/2009 (Marciel, M). (Entered: 07/02/2009)
199 STIPULATION and ORDER 198 for extension of time signed by Senior Judge Lawrence K. Karlton on 7/8/2009. The time for service of Fourth Amended/Supplemental Complaint on all defendants is EXTENDED to and including 8/3/2009. (Marciel, M) (Entered: 07/08/2009)
200 MOTION to intervene by non−party Michael L. Hughes. (Carlos, K) Modified on 10/15/2009 (Manzer, C). (Entered: 07/17/2009)
201 MOTION to intervene by non−party. (Carlos, K) Modified on 10/15/2009 (Manzer, C). (Entered: 07/17/2009)
202 STIPULATION and PROPOSED ORDER for Concerning Service of Process and Filing of Responsive Pleading by Richard M. Gilman. (Porter, David) (Entered: 08/05/2009)
203 OPPOSITION by Arnold Schwarzenegger to 201 Motion to Intervene, 200 Motion to Intervene. (Cassidy, Terence) Modified on 8/7/2009 (Streeter, J). (Entered: 08/06/2009)
204 ORDER signed by Senior Judge Lawrence K. Karlton on 08/11/09 ORDERING the parties to submit briefing not to exceed 15 pages regarding the effect of the Ninth Circuit's grant of permission on this court's jurisdiction over this case, and regarding the effect of that decision on the motions currently under submission. Such additional

Case: 2:05-cv-830 As of: 11/06/2017 01:21 PM PST 24 of 50

08/18/2009 08/26/2009 09/01/2009 09/01/2009 09/29/2009 10/05/2009 10/13/2009
10/15/2009
12/23/2009 01/11/2010 01/12/2010
01/25/2010 02/04/2010

briefing shall be filed w/i 15 court days of the date of this order. The court further grants the 202 parties' stipulation of 08/05/09. Service of process of the Fourth Amended/Supplemental Complaint on behalf of the Commissioners and Deputy Commissioners in their official capacities has been completed, and responsive pleading by those dfts to the Fourth Amended/Supplemental Complaint shall be filed w/i 20 days from the Court's ruling on dft's motion to dismiss. (Benson, A.) (Entered: 08/11/2009)
205 REPLY (Traverse) by Michael L. Hughes, and Raymond Scott, to 203 OPPOSITION by Arnold Schwarzenegger re 200 , 201 Motions to intervene. (Reader, L) (Entered: 08/20/2009)
206 RESPONSE to 204 Order: Plaintiff's Position re Effect of Interpocutory Appeal by Richard M. Gilman. (Knox, Monica) Modified on 8/27/2009 (Engbretson, K.). (Entered: 08/26/2009)
207 BRIEF Regarding Effect of Interlocutory Appeal by Arnold Schwarzenegger. (Cassidy, Terence) (Entered: 09/01/2009)
208 MOTION to STAY by Arnold Schwarzenegger. Motion Hearing set for 10/13/2009 at 10:00 AM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. (Attachments: # 1 Memorandum of Points and Authorities, # 2 Declaration, # 3 Proposed order)(Cassidy, Terence) (Entered: 09/01/2009)
209 OPPOSITION by Richard M. Gilman to 208 MOTION to STAY. (Porter, David) (Entered: 09/29/2009)
210 REPLY by Arnold Schwarzenegger re 209 Opposition to Motion. (Cassidy, Terence) (Entered: 10/05/2009)
211 MINUTES (Text Only) for proceedings held before Senior Judge Lawrence K. Karlton: MOTION HEARING held on 10/13/2009 re 208 MOTION to STAY filed by Arnold Schwarzenegger. After oral argument, the matter stands SUBMITTED. Court order to follow. Plaintiffs Counsel David Porter, Carter White present. Defendants Counsel Michael Pott present. Court Reporter: C. Bodene. (Rivas, A) (Entered: 10/13/2009)
212 ORDER signed by Senior Judge Lawrence K. Karlton on 10/15/2009 ORDERING; 208 Motion to Stay is GRANTED in part as to 200 201 Motions to Intervene. In all other respects, the motion to stay is DENIED WITHOUT PREJUDICE. The parties may commence with discovery and other proceedings relevant to the claims of the named plaintiffs. (Suttles, J) Modified on 10/15/2009 (Manzer, C). (Entered: 10/15/2009)
213 MOTION to COMPEL Discovery Responses and to Strike Objections (Local Rule 251) by Richard M. Gilman. Motion Hearing set for 1/14/2010 at 10:00 AM before Judge Gregory G. Hollows . (Porter, David) Modified on 12/24/2009 (Duong, D). (Entered: 12/23/2009)
214 STIPULATION and PROPOSED ORDER re 213 MOTION to COMPEL Discovery Responses and to Strike Objections (Local Rule 251) by Richard M. Gilman. (Attachments: # 1 Proposed Order)(White, Carter) (Entered: 01/11/2010)
215 ORDER signed by Magistrate Judge Gregory G. Hollows on 01/11/10 ordering that the hearing on plaintiff's motion to compel discovery responses and to strike objections 213 is rescheduled to Thursday 01/28/10 at 10:00 a.m. (Plummer, M) Modified on 1/12/2010 (Plummer, M). Modified on 1/13/2010 (Plummer, M). (Entered: 01/12/2010)
216 STIPULATION and PROPOSED ORDER for Resetting Hearing re 213 MOTION to COMPEL Discovery Responses and to Strike Objections (Local Rule 251) by Richard M. Gilman. (Attachments: # 1 Proposed Order)(White, Carter) (Entered: 01/25/2010)
217 ORDER signed by Senior Judge Lawrence K. Karlton on 02/04/10 ORDERING that plfs' 157 Motion for Preliminary Injunction is GRANTED as to the named plfs. Defendants and their agents are ENJOINED from enforcing the provisions of Proposition 9 that amend former California Penal Code section 3041.5(b)(2)(A) as to the named plaintiffs. Dfts' 164 Motion to Strike is DENIED; dfts' 187 Motion to

Case: 2:05-cv-830 As of: 11/06/2017 01:21 PM PST 25 of 50

02/04/2010
02/05/2010 02/08/2010
02/18/2010 02/22/2010 02/24/2010 02/25/2010 02/25/2010 02/26/2010
02/26/2010 03/02/2010 03/02/2010 03/02/2010 03/02/2010 03/03/2010
03/03/2010 03/03/2010

Dismiss is GRANTED IN PART. Plaintiffs' substantive due process challenge to Proposition 9 is DISMISSED W/O PREJUDICE. Defendants' motion to dismiss is DENIED as to plfs' Ex Post Facto challenge to Proposition 9. As explained in the concurrently filed order, dfts' motion to dismiss is also DENIED as to plfs' ninth claim, challenging Cal. Const. Art. V, § 8(b). (Benson, A.) (Entered: 02/04/2010)
218 ORDER signed by Senior Judge Lawrence K. Karlton on 02/04/10 ORDERING that 187 dfts' motion to dismiss is DENIED as to plfs' ninth claim. As explained in the courts concurrently−filed order, dfts' motion to dismiss is GRANTED IN PART as to plfs' eighth claim, which challenges Proposition 9 of 2008. (Benson, A.) (Entered: 02/04/2010)
219 STIPULATION and PROPOSED ORDER for Resetting Hearing re 213 MOTION to COMPEL Discovery Responses and to Strike Objections (Local Rule 251) by Richard M. Gilman. (Attachments: # 1 Proposed Order)(White, Carter) (Entered: 02/05/2010)
220 ORDER signed by Magistrate Judge Gregory G. Hollows on 2/8/10 and stipulated between the parties RESETTING the Motion to Compel Hearing for 3/4/2010 at 10:00 AM in Courtroom 9 (GGH) before Magistrate Judge Gregory G. Hollows. (Yin, K) (Entered: 02/08/2010)
221 ANSWER to COMPLAINT by Arnold Schwarzenegger. Attorney Pott, Michael William added.(Pott, Michael) (Entered: 02/18/2010)
222 MOTION to INTERVENE by Stephen Liebb. (Reader, L) (Entered: 02/23/2010)
223 MOTION to intervene in Class action by Edward S. Renteria. (Becknal, R) (Entered: 02/26/2010)
224 MOTION to intervene in Class action by David Monroe. (Becknal, R) (Entered: 02/26/2010)
225 MOTION to intervene in Class action by Felix Lucero. (Becknal, R) (Entered: 02/26/2010)
226 STATEMENT of (Joint) re: Discovery Disagreements (Local Rule 251) by Plaintiff Richard M. Gilman re 213 MOTION to COMPEL Discovery Responses and to Strike Objections (Local Rule 251). (Attachments: # 1 Exhibits A & B − Declaration(s) of Sandra Maciel)(Porter, David) (Entered: 02/26/2010)
227 MOTION intervene in class action by Noel Valdivia, Sr. (Becknal, R) (Entered: 03/01/2010)
228 MOTION to STAY by Arnold Schwarzenegger. Motion Hearing set for 4/15/2010 at 10:00 AM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. (Attachments: # 1 Motion, # 2 Declaration)(Pott, Michael) (Entered: 03/02/2010)
229 EX PARTE APPLICATION for Order Shortening Time by Arnold Schwarzenegger for Order Shortening Time. (Pott, Michael) (Entered: 03/02/2010)
230 EX PARTE APPLICATION for Order by Arnold Schwarzenegger for Order. (Pott, Michael) (Entered: 03/02/2010)
233 MOTION to INTERVENE in class action by iname Clement Brown. (Duong, D) (Entered: 03/03/2010)
231 NOTICE of INTERLOCUTORY APPEAL by Noreen Blonien, L Dininni, Jones Moore, Booker Welch, Board of Parole Hearings, Arnold Schwarzenegger, M. Hochino, J. Davis as to 217 Order. Attorney Pott, Michael William added. (Attachments: # 1 Exhibit #1 − 9th Cir. Docket, # 2 Exhibit #2 − USDC EDCA Order, # 3 Exhibit #3 − Statement of Representation)(Pott, Michael) Modified on 3/3/2010 (Mena−Sanchez, L). (Entered: 03/03/2010)
232 NOTICE OF PAYMENT of filing fee re: APPEAL 231 . (Pott, Michael) Modified on 3/3/2010 (Mena−Sanchez, L). (Entered: 03/03/2010)
RECEIPT number #CAE200024250 $455.00 Appeal Fee fbo Defendants Arnold Schwarzenegger et al by Porter Scott on 3/3/2010. (Reader, L) (Entered: 03/03/2010)

Case: 2:05-cv-830 As of: 11/06/2017 01:21 PM PST 26 of 50

03/03/2010 03/03/2010 03/04/2010
03/05/2010
03/05/2010 03/08/2010 03/12/2010 03/12/2010 03/15/2010 03/15/2010 03/16/2010 03/18/2010 03/18/2010 03/19/2010

234 APPEAL PROCESSED to Ninth Circuit re 231 Notice of Appeal. Filed dates for Notice of Appeal *3/3/2010*, Complaint *4/27/2005* and Appealed Order / Judgment *2/4/2010*. Court Reporter: *C. Bodene*. *Fee Status: Paid on 3/3/2010 in the amount of $455.00* ** (Attachments: # 1 Appeal Information) (Mena−Sanchez, L) (Entered: 03/03/2010)
235 ORDER signed by Senior Judge Lawrence K. Karlton on 3/3/2010 DENYING without prejudice 229 Ex Parte Application to shorten time filed by Arnold Schwarzenegger. Defendants may either re−notice the motion for a stay for 4/5/2010 or file renewed application to shorten time explaining why a hearing on 4/5/2010 will be inadequate. (Waggoner, D) (Entered: 03/03/2010)
236 MINUTES (Text Only) for proceedings held before Magistrate Judge Gregory G. Hollows: MOTION HEARING held on 3/4/2010 re 213 MOTION to COMPEL Discovery Responses and to Strike Objections (Local Rule 251) filed by Richard M. Gilman. The court issued a ruling from the bench regarding production the Transcripts and ordered a Joint Supplemental Statement regarding the Lifer Packets. A summary order to follow. Plaintiffs Counsel Carter White and David Porter present. Defendants Counsel Michael W. Pott present. Court Reporter/CD Number: I of 1. (Callen, V) (Entered: 03/04/2010)
237 ORDER signed by Magistrate Judge Gregory G. Hollows on 03/04/10 ordering defendants are to produce in electronic form, within 30 days, parole hearing transcripts for 50% of the 6200 lifer inmates on defendants' list referenced at hearing, beginning with no. 1, and producing the transcript thereafter for every other inmate on the list (in other words, producing the transcript for those inmates on the list whose list number would be 1, 3, 5,7, et seq); in addition, defendants are to produce the list of 6200 inmates itself to plaintiffs within the same time period. No later than 03/15/10, the parties must file a joint supplemental statement setting forth an agreed statistically reasonable percentage of "lifer packets" to be produced by defendants, or their positions regarding such. (Plummer, M) (Entered: 03/05/2010)
238 NOTICE Amended Notice of Motion to Stay Enforcement by Arnold Schwarzenegger re 228 MOTION to STAY. (Pott, Michael) (Entered: 03/05/2010)
239 USCA CASE NUMBER 10−15471 for 231 Notice of Appeal, filed by Jones Moore, Arnold Schwarzenegger, J. Davis, Booker Welch, M. Hochino, Board of Parole Hearings, L Dininni, Noreen Blonien. (Engbretson, K.) (Entered: 03/08/2010)
240 STATEMENT REGARDING TRANSCRIPTS FOR APPEAL by Noreen Blonien, L Dininni, Jones Moore, Booker Welch, Board of Parole Hearings, Richard M. Gilman, Arnold Schwarzenegger, M. Hochino, J. Davis (Cassidy, Terence) Modified docket text on 3/15/2010 (Waggoner, D). (Entered: 03/12/2010)
241 MOTION for permissive joinder as a plaintiff by non−party Gonzales. (Carlos, K) (Entered: 03/15/2010)
242 OPPOSITION by Arnold Schwarzenegger to 233 MOTION to INTERVENE, 227 MOTION intervene, 225 MOTION, 224 MOTION, 223 MOTION, 222 MOTION to INTERVENE. Attorney Williams, Glen Andrew added. (Williams, Glen). (Entered: 03/15/2010)
243 STIPULATION and PROPOSED ORDER re 237 Order. by Richard M. Gilman. (Porter, David) Modified on 3/17/2010 (Kaminski, H). (Entered: 03/15/2010)
244 MOTION For Permisive Joinder as named Plaintiff by Reginald Cooper. (Mena−Sanchez, L) (Entered: 03/17/2010)
245 TRANSCRIPT REQUEST by Richard M. Gilman re 231 Notice of Appeal, (Porter, David) (Entered: 03/18/2010)
246 RESPONSE by Richard M. Gilman to 233 MOTION to INTERVENE, 244 MOTION Permisive Joinder as named Plaintiff, 227 MOTION intervene, 225 MOTION, 241 MOTION, 224 MOTION, 223 MOTION, 222 MOTION to INTERVENE. (Porter, David) (Entered: 03/18/2010)
247 SUPPLEMENT by Richard M. Gilman re 237 Order,,,. (Porter, David) (Entered: 03/19/2010)

Case: 2:05-cv-830 As of: 11/06/2017 01:21 PM PST 27 of 50

03/22/2010 03/22/2010 03/23/2010
03/25/2010 03/29/2010 03/31/2010 04/05/2010
04/06/2010 04/07/2010
06/03/2010 06/28/2010 06/28/2010 06/29/2010 07/07/2010 07/08/2010

248 STIPULATION and ORDER signed by Magistrate Judge Gregory G. Hollows on 3/22/2010 and agreed between the parties to EXTEND TIME for the parties to respond to the 3/5/2010 court's order. (Yin, K) (Entered: 03/22/2010)
249 OPPOSITION by Richard M. Gilman to 228 MOTION to STAY. (Porter, David) (Entered: 03/22/2010)
250 TRANSCRIPT of Proceedings Re: Hearing on Motion to Dismiss held on May 18, 2009, before Senior Judge Lawrence K. Karlton, filed by Court Reporter Cathie Bodene, Phone number 916−446−6360 E−mail cbodene@caed.uscourts.gov. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction must be filed within 5 court days. Redaction Request due 4/13/2010. Redacted Transcript Deadline set for 4/23/2010. Release of Transcript Restriction set for 6/21/2010. (Bodene, C) (Entered: 03/23/2010)
251 MOTION for permissive joinder as named plaintiff by Kenneth Scott Rodgers. (Becknal, R) (Entered: 03/26/2010)
252 REPLY by Arnold Schwarzenegger re 249 Opposition to Motion. (Pott, Michael) (Entered: 03/29/2010)
253 MOTION to INTERVENE IN CLASS ACTION by Keith Augustine. (Williams, D) (Entered: 04/02/2010)
254 MINUTES (Text Only) for proceedings held before Senior Judge Lawrence K. Karlton: MOTION HEARING held on 4/5/2010 re 238 MOTION to Stay Enforcement of Preliminary Injunction filed by Defendants. After oral arugment, the matter stands SUBMITTED. Court order to follow. Plaintiffs Counsel Monica Knox, David Porter, Carter White present. Defendants Counsel Michael Pott present. Court Reporter: C. Bodene. (Rivas, A) Modified on 4/6/2010 (Rivas, A). (Entered: 04/06/2010)
255 MOTION For Permisive Joinder as named Plaintiff by George Bubier. (Owen, K) (Entered: 04/07/2010)
256 ORDER signed by Senior Judge Lawrence K. Karlton on 4/7/10: The order of February 4, 2010, granting a preliminary injunction is STAYED SOLELY AS TO PLAINTIFF GILMAN. The injunction remains in effect as to plaintiffs OLSON and FOWLER 217 . All motions to intervene and/or for permissive joinder are STAYED pending resolution of the appeal of class certification. These include: 222 Stephen Liebb), 223 (Edward S. Renteria), 224 (David Monroe), 225 (Felix Lucero), 227 (Noel Valdivia, Sr., 233 (Clement Brown), 241 (Richard Gonzales), 244 (Reginald Cooper), 251 (Kenneth Scott Rodgers), 253 (Keith Augustine). (Kaminski, H) (Entered: 04/07/2010)
257 USCA MEMORANDUM #09−16087, that the decision of the district court is AFFIRMED. 193 (Reader, L) (Entered: 06/03/2010)
258 MANDATE of USCA re 257 USCA order. (Benson, A.) (Entered: 06/28/2010)
259 MOTION for PRELIMINARY INJUNCTION Expand Preliminary Injunction to Entire Class by Richard M. Gilman. Motion Hearing set for 07/26/10 at 10:00 AM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. (Attachments: # 1 Attachment)(Porter, David) (Entered: 06/28/2010)
260 ORDER signed by Magistrate Judge Gregory G. Hollows on 6/28/2010 ORDERING that pltf's 213 motion to compel discovery responses is VACATED w/out prejudice. (Yin, K) (Entered: 06/29/2010)
261 STIPULATION and PROPOSED ORDER for /to Move Hearing date re 259 MOTION for PRELIMINARY INJUNCTION Expand Preliminary Injunction to Entire Class by Arnold Schwarzenegger. (Pott, Michael) (Entered: 07/07/2010)
262 ORDER signed by Senior Judge Lawrence K. Karlton on 7/8/2010 ORDERING the MOTION HEARING as to 259 MOTION for PRELIMINARY INJUNCTION to Expand Preliminary Injunction to Entire Class is continued to 8/9/2010 at 10:00 AM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. (Matson, R) (Entered: 07/08/2010)

Case: 2:05-cv-830 As of: 11/06/2017 01:21 PM PST 28 of 50

07/23/2010
07/26/2010 07/30/2010 08/05/2010 08/26/2010 08/30/2010 09/02/2010 09/14/2010 09/15/2010
09/15/2010
09/16/2010 09/22/2010 09/23/2010 09/23/2010 09/23/2010

263 EXHIBITS in support of 259 Motion to Expand Preliminary Injunction to Entire Class filed by Richard M. Gilman. (Attachments: # 1 Exhibit Table of Contents, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11, # 13 Exhibit 12, # 14 Exhibit 13, # 15 Exhibit 14, # 16 Exhibit 15, # 17 Exhibit 16, # 18 Exhibit 17, # 19 Exhibit 18, # 20 Exhibit 19, # 21 Exhibit 20)(Knox, Monica) Modified on 7/26/2010 (Benson, A.). (Entered: 07/23/2010)
264 OPPOSITION by Arnold Schwarzenegger to 259 Motion to Expand Preliminary Injunction to Entire Class. (Attachments: # 1 Objections to Evidence, # 2 Declaration)(Pott, Michael) (Entered: 07/26/2010)
265 WITHDRAWAL of 259 Motion to Expand Preliminary Injunction to Entire Class by Richard M. Gilman. (Knox, Monica) (Entered: 07/30/2010)
266 MOTION for Joinder of Class Action by David Scott Curtis. (Matson, R) (Entered: 08/06/2010)
267 OPPOSITION by Arnold Schwarzenegger to 266 MOTION for Joinder of Class Action. (Pott, Michael) (Entered: 08/26/2010)
268 MOTION for Permissive Joinder as Named Plaintiff by Steven Eric Walker. (Williams, D) (Entered: 08/31/2010)
269 MOTION for ajoinder to the instant action by John Laponte. (Williams, D) (Entered: 09/03/2010)
271 MOTION for Permissive Joinder filed by Dennis J. Peddy. (Williams, D) (Entered: 09/15/2010)
270 ORDER signed by Senior Judge Lawrence K. Karlton on 9/15/2010 ORDERING the motions to intervene filed by the following people are denied: Michael L. Hughes, ECF No. 200; Raymond Scott, ECF No. 201; Stephen Liebb, ECF No. 222; Edward S. Renteria, ECF No. 223; David Monroe, ECF No. 224; Felix Lucero, ECF No. 225; Noel Valdivia, ECF No. 227; Clement Brown, ECF No. 233; Richard Gonzalez, ECF No. 241; Stephen Eric Walker, ECF No. 244; Kenneth Scott Rodgers, ECF No. 251; Keith Augustine, ECF No. 253; George Bubier, ECF No. 255;David Scott Curtis, ECF No. 266; Stephen Eric Walker, ECF No. 268; and John Laponte, ECF No. 269. The Clerk is instructed to serve a copy of this order upon the sixteen individuals named above at the addresses listed in their motions. (Matson, R) (Entered: 09/15/2010)
SERVICE BY MAIL: 270 Order, served on Michael L. Hughes, Raymond Scott, Stephen Liebb, Edward S. Renteria, David Monroe, Felix Lucero, Noel Valdivia, Clement Brown, Richard Gonzalez, Stephen Eric Walker, Kenneth Scott Rodgers, Keith Augustine, George Bubier, David Scott Curtis, Stephen Eric Walker, and John Laponte.(Matson, R) (Entered: 09/15/2010)
272 MOTION for Joinder filed by Russell A. Bowden. (Williams, D) (Entered: 09/17/2010)
273 MOTION for JOINDER to Class Action filed by Jeffrey P. Perrotte. (Zignago, K.) (Entered: 09/23/2010)
274 ORDER signed by Senior Judge Lawrence K. Karlton on 9/22/2010 DENYING 271 Motion for permissive joinder filed by Dennis J. Peddy. The Clerk of Court is instructed to serve a copy of this order upon Dennis J. Peddy at the address listed in his motion. (cc: D.J.Peddy/CSP−Solano). (Reader, L) (Entered: 09/23/2010)
SERVICE BY MAIL: 274 Order on Motion, served on David Scott Curtis. (Reader, L) (Entered: 09/23/2010)
275 ORDER signed by Senior Judge Lawrence K. Karlton on 9/22/2010 DENYING 272 Motion for permissive joinder filed by Russell A. Bowden. The Clerk of Court is instructed to serve a copy of this order upon Russel A. Bowden, Edwin D. McMillan, Donnie Holland, Aaron Sprague, Henry Murray, Charles Wiseman, Abraham Glasper, Edward Jones, Richard Smith, Jesse Pena and Mark A. Ballou, at the addresses listed in their motion. (cc: listed parties/CSATF−Corcoran) (Reader, L) (Entered: 09/23/2010)

Case: 2:05-cv-830 As of: 11/06/2017 01:21 PM PST 29 of 50

09/23/2010 09/27/2010 09/28/2010 09/28/2010 09/28/2010 10/01/2010
10/01/2010 11/04/2010 11/09/2010
11/10/2010 11/10/2010 11/12/2010
11/18/2010
11/19/2010
11/19/2010
11/22/2010
12/02/2010

SERVICE BY MAIL: 275 Order on Motion, served on David Scott Curtis. (Reader, L) (Entered: 09/23/2010)
MAIL RETURNED as RTS: Paroled: 270 Order, sent to Noel Valdivia Sr. Notice of Change of Address due by 12/6/2010. (Mena−Sanchez, L) (Entered: 09/28/2010)
276 ORDER signed by Senior Judge Lawrence K. Karlton on 09/27/10 DENYING 273 Motion for Permissive Joinder by Jeffrey P. Perrotte. (Williams, D) (Entered: 09/28/2010)
SERVICE BY MAIL: 276 Order on Motion for Joinder served on David Scott Curtis. (cc: Jeffrey P. Perrotte) (Williams, D) (Entered: 09/28/2010)
277 MOTION for Permissive Joinder of parties plaintiff by Phillip Adams. (Duong, D) (Entered: 09/29/2010)
278 ORDER signed by Senior Judge Lawrence K. Karlton on 10/1/10 ORDERING that the MOTION for permissive joinder, ECF 277 is DENIED. The Clerk is instructed to serve a copy of this order upon Phillip Adams at the address listed in his motion. (Mena−Sanchez, L) (Entered: 10/01/2010)
SERVICE BY MAIL: 278 Order, served on David Scott Curtis and Phillip Adams P.O. Box 5248 Corcoran CA 93212−5245. (Mena−Sanchez, L) (Entered: 10/01/2010)
279 MOTION to COMPEL Production of Documents and to Strike Objections by Richard M. Gilman. Motion Hearing set for 12/2/2010 at 10:00 AM in Courtroom 9 (GGH) before Magistrate Judge Gregory G. Hollows. (White, Carter) (Entered: 11/04/2010)
280 NOTICE to RESCHEDULE HEARING on 279 MOTION to COMPEL Production of Documents and to Strike Objections : Motion Hearing set for 12/9/2010 at 10:00 AM in Courtroom 9 (GGH) before Magistrate Judge Gregory G. Hollows. (White, Carter) (Entered: 11/09/2010)
281 STANDING 251 STIPULATED ORDER signed by Judge Gregory G. Hollows on 11/10/2010. (Marciel, M) (Entered: 11/10/2010)
SERVICE BY MAIL: 281 Standing 251 Stipulated Order served on movant David Scott Curtis. (Marciel, M) (Entered: 11/10/2010)
282 MINUTE ORDER: re 279 Motion to Compel, 280 Notice to Reschedule Hearing on Motion. Due to the Court's changing schedule this matter is hereby advanced to the original date of Thursday, December 2, 2010 @ 10:00 am. If the parties have any questions please contact the Court Clerk, Valerie Callen at(916) 930−4199. (Callen, V) (Entered: 11/12/2010)
283 MINUTE ORDER: re 279 Motion to Compel, 280 Notice to Reschedule Hearing on Motion, 282 Minute Order. Due to circumstances beyond the Court's control the Discovery Motion currently set on Thursday, December 2, 2010 is hereby continued once again to Thursday, December 9, 2010 @ 10:00 a.m. (Callen, V) (Entered: 11/18/2010)
284 MOTION for PRELIMINARY INJUNCTION to entire class by Richard M. Gilman. Motion Hearing set for 12/20/2010 at 10:00 AM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. (Knox, Monica) Modified on 1/6/2011 (Marciel, M). (Entered: 11/19/2010)
285 EXHIBIT Table of Contents, Exhibits 1−23 re 284 MOTION for PRELIMINARY INJUNCTION To Entire Class filed by Richard M. Gilman. (Attachments: # 1 Exhibits 1−10, # 2 Exhibits 11−20, # 3 Exhibits 21−23)(Knox, Monica) (Entered: 11/19/2010)
286 MOTION to Amend Order granting Class Certification by Richard M. Gilman. Motion Hearing set for 12/20/2010 at 10:00 AM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. (Porter, David) Modified on 11/23/2010 (Owen, K). (Entered: 11/22/2010)
287 JOINT STATEMENT re: Discovery Disagreements by Plaintiff Richard M. Gilman re 279 MOTION to COMPEL Production of Documents and to Strike Objections. (Attachments: # 1 Exhibit, # 2 Declaration of Sandra Maciel, # 3 Exhibit, # 4 Exhibit,

Case: 2:05-cv-830 As of: 11/06/2017 01:21 PM PST 30 of 50

12/03/2010 12/06/2010 12/06/2010 12/07/2010 12/08/2010
12/09/2010
12/09/2010
12/09/2010 12/10/2010
12/10/2010 12/10/2010 12/10/2010 12/15/2010 12/16/2010

# 5 Exhibit, # 6 Exhibit, # 7 Declaration of Michael W. Pott)(Porter, David) Modified on 12/3/2010 (Reader, L). (Entered: 12/02/2010)
291 MOTION for Joinder in Civil Rights Complaint by Ivan Von Staich. (Attachments: # 1 IFP Motion)(Mena−Sanchez, L) (Entered: 12/07/2010)
288 OPPOSITION by Arnold Schwarzenegger to 286 Motion to Amend Order Granting Class Certification. (Pott, Michael) (Entered: 12/06/2010)
289 OPPOSITION by Arnold Schwarzenegger to 284 MOTION for PRELIMINARY INJUNCTION To Entire Class. (Attachments: # 1 Declaration)(Pott, Michael) (Entered: 12/06/2010)
290 USCA JUDGMENT as to 232 Notice of Appeal: decision of District Court REVERSED. (Benson, A.) (Entered: 12/07/2010)
292 MINUTES (Text Only) for proceedings held before Senior Judge Lawrence K. Karlton: STATUS CONFERENCE held on 12/8/2010. The hearing on the motions 284 and 286 , currently set for 12/20/2010, is CONTINUED TO 1/12/2011 at 01:30 PM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. Plaintiffs Counsel David Porter, Monica Knox, Carter White present. Defendants Counsel Michael Potts, Glen Williams present. (Rivas, A) (Entered: 12/09/2010)
293 MINUTES (Text Only) for proceedings held before Magistrate Judge Gregory G. Hollows: MOTION HEARING held on 12/9/2010 re 279 MOTION to COMPEL Production of Documents and to Strike Objections filed by Richard M. Gilman, 283 Minute Order. After discussion the Court states he will issue the protective order and also clarifies whether or not there are three or four request at issue. The parties clarify there are three request at issue. Plaintiffs Counsel Monica Knox, Carter White and David Porter present. Defendants Counsel Glen A. Williams present. Court Reporter/CD Number: 1 of 1. (Callen, V) (Entered: 12/09/2010)
294 ORDER signed by Magistrate Judge Gregory G. Hollows on 12/9/10 ORDERING that Pltf's 279 Motion to Compel is GRANTED pursuant to a modified protective order to be submitted. Deft's are to submit, within 7 days, a protective order that complies with the court's modifications. Once submitted as directed, the court will approve the proposed protective order. Defts will have 14 days to produce the subject discovery documents. (Owen, K) (Entered: 12/09/2010)
SERVICE BY MAIL: 294 Order on Motion to Compel, served on David Scott Curtis. (Owen, K) (Entered: 12/09/2010)
295 ORDER signed by Senior Judge Lawrence K. Karlton on 12/9/10, ORDERING that the hearing on 284 the Motion for Preliminary Injunction To Entire Class, and 286 the Motion to Amend Order Granting Class Certification is CONT'D from 12/20/10 tor 1/12/2011 at 01:30 PM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. (Kastilahn, A) (Entered: 12/10/2010)
SERVICE BY MAIL: 295 Order served on David Scott Curtis. (Kastilahn, A) (Entered: 12/10/2010)
296 ORDER signed by Senior Judge Lawrence K. Karlton on 12/10/10 DENYING the 291 Motion for Permissive Joinder. Clerk directed to serve a copy of this order on Ivan Von Staich at address listed in his motion. (Owen, K) (Entered: 12/10/2010)
SERVICE BY MAIL: 296 Order on Motion served on David Scott Curtis, and Ivan Von Staich. (Owen, K) (Entered: 12/10/2010)
297 STIPULATION and PROPOSED ORDER for Briefing Schedule by Richard M. Gilman. (Porter, David) (Entered: 12/15/2010)
298 STIPULATION and ORDER signed by Senior Judge Lawrence K. Karlton on 12/15/2010 ORDERING that Dfts may file supplemental oppositions to the motion for preliminary injunction and the motion to amend the order granting class certification by 12/29/2010. Pltf's may file their replies regarding the preliminary injunction motion and the motion to amend by 1/5/2011. (Zignago, K.) (Entered: 12/16/2010)

Case: 2:05-cv-830 As of: 11/06/2017 01:21 PM PST 31 of 50

12/16/2010 12/16/2010 12/20/2010 12/23/2010 12/23/2010 12/23/2010 12/27/2010 12/29/2010 01/05/2011 01/05/2011 01/05/2011 01/06/2011 01/07/2011
01/10/2011 01/10/2011 01/10/2011

SERVICE BY MAIL: 298 Stipulation and Order served on David Scott Curtis. (Zignago, K.) (Entered: 12/16/2010)
299 PROPOSED PROTECTIVE ORDER by Arnold Schwarzenegger. (Pott, Michael) Modified on 12/17/2010 (Marciel, M). (Entered: 12/16/2010)
300 [WITHDRAWN pursuant to document 303 ] BILL of COSTS SUBMITTED by Arnold Schwarzenegger. (Williams, Glen) Modified on 12/29/2010 (Manzer, C). (Entered: 12/20/2010)
301 PROTECTIVE ORDER signed by Magistrate Judge Gregory G. Hollows on 12/22/10. (See order for further details)(Plummer, M) (Entered: 12/23/2010)
SERVICE BY MAIL: 301 Order served on David Scott Curtis. (Plummer, M) (Entered: 12/23/2010)
302 MOTION to COMPEL PRODUCTION of DOCUMENTS by Richard M. Gilman. Motion Hearing set for 1/13/2011 at 10:00 AM in Courtroom 9 (GGH) before Magistrate Judge Gregory G. Hollows. (Porter, David) Modified on 1/7/2011 (Marciel, M). (Entered: 12/23/2010)
303 NOTICE of Withdrawal of Bill of Costs by Arnold Schwarzenegger re 300 Bill of Costs Submitted. (Pott, Michael) (Entered: 12/27/2010)
304 SUPPLEMENT by Arnold Schwarzenegger re 289 Opposition to Motion. (Pott, Michael) (Entered: 12/29/2010)
305 NOTICE of Unopposed Request to file documents under seal pursuant to L.R. 141 by Richard M. Gilman. (Attachments: # 1 Proposed Order) (Porter, David) Modified on 1/6/2011 (Marciel, M). (Entered: 01/05/2011)
306 REPLY by Richard M. Gilman to defendants' 289 Opposition to Motion for Preliminary Injunction. (Attachments: # 1 Exhibit 24, # 2 Exhibit 25, # 3 Exhibit 26, # 4 Exhibit 27, # 5 Exhibit 28, # 6 Exhibit 29, # 7 Exhibit 30) (Knox, Monica) Modified on 1/6/2011 (Marciel, M). (Entered: 01/05/2011)
307 REPLY by Richard M. Gilman to defendants' 288 Opposition to Motion to Amend Order Granting Class Certification. (Porter, David) Modified on 1/6/2011 (Marciel, M). (Entered: 01/05/2011)
308 STIPULATION and PROPOSED ORDER to move 302 Motion to Compel Hearing by Arnold Schwarzenegger. (Pott, Michael) Modified on 1/7/2011 (Marciel, M). (Entered: 01/06/2011)
309 ORDER signed by Senior Judge Lawrence K. Karlton on 1/7/11 ORDERING Plaintiffs submitted a report titled "April 2010 Special Stipulation Report #3 Excerpt" in support of their motion for a preliminary injunction. See Exh. 20 filed in support of Motion for Preliminary Injunction. This report contains information concerning 444 parole cases whose parole hearing dates were modified in lightof a settlement in a state court case. These cases appear to be sorted first by institution and second by CDC number. The court is unable to manipulate the data because it is in a scanned file. For the foregoing reasons, the court instructs plaintiffs to file by noon on Monday, January 10, 2011 a document that sorts the data in the following manner: ( see: page 2 ) Defendants may notify the court of any errors in plaintiffs' calculations in writing by 9:00 a.m on Wednesday, January 12, 2011. Defendants are not invited to submit supplemental briefing as to the significance of this data. (Becknal, R) (Entered: 01/07/2011)
310 ORDER signed by Senior Judge Lawrence K. Karlton on 1/7/2011 re 305 ORDERING that Exhibits 31 and 32 to the Reply to Defendants Opposition for PreliminaryInjunction to Entire Class be filed under seal.(Duong, D) (Entered: 01/10/2011)
SERVICE BY MAIL: 310 Order served on David Scott Curtis. (Duong, D) (Entered: 01/10/2011)
311 EXHIBIT 33 by Richard M. Gilman, to Motion For Preliminary Injunction to Entire Class. re 309 Order. (Attachments: # 1 Exhibit)(Knox, Monica) Modified on 1/12/2011 (Reader, L). (Entered: 01/10/2011)

Case: 2:05-cv-830 As of: 11/06/2017 01:21 PM PST 32 of 50

01/10/2011 01/12/2011
01/12/2011
01/19/2011 01/19/2011 01/20/2011
01/20/2011 01/21/2011
01/21/2011
01/24/2011 02/08/2011 02/14/2011

312 SEALED EVENT (Attachments: # 1 part 2) (Waggoner, D) (Entered: 01/10/2011)
313 STIPULATION and ORDER signed by Magistrate Judge Gregory G. Hollows on 1/12/2011 ORDERING that the hearing on the 302 Motion to Compel Production of Documents is CONTINUED to 1/27/2011 at 10:00 AM in Courtroom 9 (GGH) before Magistrate Judge Gregory G. Hollows. The deadline for filing the requisite Joint Statement re: Discovery Disagreement will be altered in accordance with the new hearing date and pursuant to Eastern District Local Rule 251. (Duong, D) (Entered: 01/12/2011)
314 MINUTES (Text Only) for proceedings held before Senior Judge Lawrence K. Karlton: MOTION HEARING held on 1/12/2011 re 284 Motion for Preliminary Injunction to entire class filed by Richard M. Gilman, and 286 Motion to Amend Order granting Class Certification filed by Richard M. Gilman. After oral argument, the parties' request for an evidentiary hearing is granted. Evidentiary Hearing set for 4/6/2011 and 04/07/2011 at 10:00 AM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. Plaintiffs Counsel David Porter, Monica Knox, Carter White present. Defendants Counsel Michael Pott, Glen Williams present. Court Reporter: C. Bodene. (Rivas, A) (Entered: 01/13/2011)
315 STIPULATION and PROPOSED ORDER for /regarding Production of Documents by Arnold Schwarzenegger. (Pott, Michael) (Entered: 01/19/2011)
316 MINUTES (Text Only) for proceedings held before Senior Judge Lawrence K. Karlton: STATUS CONFERENCE held on 1/19/2011. Further Status Conference set for 1/20/2011 at 02:30 PM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. Plaintiffs Counsel Dan Broderick, David Porter, Monica Knox, Carter White present. Defendants Counsel Michael Pott, Glen Williams present. (Rivas, A) (Entered: 01/19/2011)
317 MINUTES (Text Only) for proceedings held before Senior Judge Lawrence K. Karlton: STATUS CONFERENCE held on 1/20/2011. The Evidentiary Hearing currently set on 04/06/2011 will proceed as schedule. The Court will set a further status conference to establish a schedule for trial on the merits. Court order to follow. Plaintiffs Counsel Dan Broderick, David Porter, Monica Knox, Carter White present. Defendants Counsel Michael Pott, Glen Williams present. (Rivas, A) (Entered: 01/20/2011)
318 WITHDRAWAL of 302 Motion to Compel Production of Documents by Richard M. Gilman. (Porter, David) (Entered: 01/20/2011)
319 STIPULATION and ORDER REGARDING PRODUCTION OF DOCUMENTS signed by Magistrate Judge Gregory G. Hollows on 1/20/2011 ORDERING that by 2/7/2011, Dfts will produce the documents described in the Requests Numbers 1, 2, and 3, in the 12/23/2010 Request for Production of Documents, and by 2/7/2011, Dfts will produce the documents in Request Number 4 in the 8/18/2010 Request for Production of Documents, which shall be produced as "confidential" material subject to the provisions of the 301 Protective Order. (Zignago, K.) (Entered: 01/21/2011)
320 ORDER signed by Senior Judge Lawrence K. Karlton on 1/20/2011 re 284 286 ORDERING that a two−day evidentiary hearing is set to begin at 10:00 a.m. on April 6, 2011. The parties shall file proposed findings of fact and conclusions of law by March 23, 2011. The court further orders that a status conference shall be held on February 28, 2011 at 3:00 p.m. to set a date for trial on plaintiffs' Proposition 9 ex post facto claim. Status reports shall be filed fourteen (14) days prior to the status conference.(Duong, D) (Entered: 01/21/2011)
321 ORDER Amending Opinion AND AMENDED OPINION [For Publication] ORDERING that the district court decision is REVERSED. (Duong, D) (Entered: 01/24/2011)
322 USCA MANDATE as to 231 Notice of Appeal, filed by Jones Moore, Arnold Schwarzenegger, J. Davis, Booker Welch, M. Hochino, Board of Parole Hearings, L Dininni, Noreen Blonien. (Kaminski, H) (Entered: 02/09/2011)
323 STATUS REPORT by Arnold Schwarzenegger. (Pott, Michael) (Entered: 02/14/2011)

Case: 2:05-cv-830 As of: 11/06/2017 01:21 PM PST 33 of 50

02/14/2011 02/22/2011
02/28/2011 02/28/2011
03/02/2011 03/23/2011 03/24/2011 03/31/2011 04/01/2011 04/05/2011 04/06/2011
04/08/2011 04/11/2011
04/12/2011 04/14/2011

324 STATUS REPORT by Richard M. Gilman. (Porter, David) (Entered: 02/14/2011)
325 TRANSCRIPT of Proceedings held on January 12th, 2011, before Senior Judge Lawrence K. Karlton, filed by Court Reporter Cathie Bodene, Phone number 916−446−6360 E−mail cbodene@caed.uscourts.gov. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through Court Reporter Cathie Bodene or PACER. Any Notice of Intent to Request Redaction must be filed within 5 court days. Redaction Request due 3/17/2011. Redacted Transcript Deadline set for 3/25/2011. Release of Transcript Restriction set for 5/23/2011. (Bodene, C) (Entered: 02/22/2011)
326 SUPPLEMENT by Richard M. Gilman re 286 Motion to Amend Order granting Class Certification. (Knox, Monica) (Entered: 02/28/2011)
327 MINUTES (Text Only) for proceedings held before Senior Judge Lawrence K. Karlton: SCHEDULING CONFERENCE held on 2/28/2011. Further Status Conference set for 9/6/2011 at 02:30 PM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. Plaintiffs Counsel Dan Broderick, Monica Knox, Carter White, Cheryl Wei present. Defendants Counsel Michael Pott present. (Rivas, A) (Entered: 02/28/2011)
328 ORDER signed by Senior Judge Lawrence K. Karlton on 3/1/11 ORDERING a status conference was held in chambers on 2/28/11. After hearing, the court orders a further Status Conference set for 9/6/11 at 02:30 PM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton. (Becknal, R) (Entered: 03/02/2011)
329 PROPOSED FINDINGS of FACT by Arnold Schwarzenegger.(Pott, Michael) (Entered: 03/23/2011)
330 PROPOSED FINDINGS of FACT by Richard M. Gilman. Attorney Broderick, Daniel J. added. (Broderick, Daniel) (Entered: 03/24/2011)
331 PRE−HEARING BRIEF by plaintiff Richard M. Gilman. (Knox, Monica) Modified on 4/1/2011 (Marciel, M). (Entered: 03/31/2011)
332 BRIEF FOR EVIDENTIARY HEARING by dfts. (Pott, Michael) Modified on 4/4/2011 (Benson, A.). (Entered: 04/01/2011)
333 REQUEST to Seal Document(s) pursuant to L.R. 141 by Richard M. Gilman. (Porter, David) Modified on 4/6/2011 (Kaminski, H). (Entered: 04/05/2011)
334 MINUTES for proceedings held before Senior Judge Lawrence K. Karlton: EVIDENTIARY HEARING held on 4/6/2011. Witnesses: Monica Knox and Sue Facciola. EXHIBITS ADMITTED: Plaintiffs Exhibits: 21, 35, 36, 37, 38, 39, 40, 41, 42, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 60, 61, 62, 63, 64, 65, 66.Defendants Exhibits: A, B. Plaintiffs Counsel Dan Broderick, David Porter, Carter White present. Defendants Counsel Michael Pott, Glen William present. Court Reporter: K. O'Halloran. (Rivas, A) (Entered: 04/07/2011)
335 MOTION TO ADMIT EXHIBITS and PROPOSED ORDER by Richard M. Gilman. (Broderick, Daniel) Modified on 4/11/2011 (Benson, A.). (Entered: 04/08/2011)
336 ORDER signed by Senior Judge Lawrence K. Karlton on 4/8/11 ORDERING the summaries previously identified as exhibits 43−48 shall not be admitted. The packets of parole suitability information are admitted and assigned the following exhibit numbers: James Alexander (#43), Na Her (#44), Joel Kyne (#45), Daniel Rees (#46), Frank Salas (# 47), and Edward Sanders (#48); pltfs summary chart identified as exhibit #59 is admitted; the parole suitability packet involving Henry Bratton shall be added to exhibit 63 and the packet involving Billy Counts shall be added to exhibit 64. (Carlos, K) (Entered: 04/11/2011)
337 PROPOSED ORDER To Seal Documents by Richard M. Gilman. (Porter, David) (Entered: 04/12/2011)
338 ORDER signed by Senior Judge Lawrence K. Karlton on 04/13/11 ORDERING that plfs' 333 Motion to Seal Documents is GRANTED as to pages BPH 75−3555. Clerk to file and maintain these documents UNDER SEAL indefinitely, permitting access only to officers and employees of the court, and court reporters where disclosure is

Case: 2:05-cv-830 As of: 11/06/2017 01:21 PM PST 34 of 50

04/21/2011 04/25/2011
04/26/2011 04/26/2011 04/26/2011 04/26/2011 04/26/2011 04/27/2011 05/17/2011
05/24/2011 06/07/2011

necessary. The Motion is DENIED as to pages BPH 1−69. Excerpts from these pages shall be filed in the public docket as Exhibits 38 to 42. (Benson, A.) (Entered: 04/14/2011)
339 PROPOSED ORDER amending definitions of Certified Class by Richard M. Gilman. (Knox, Monica) Modified on 4/25/2011 (Marciel, M). (Entered: 04/21/2011)
340 ORDER 339 amending definitions of Certified Class signed by Senior Judge Lawrence K. Karlton on 4/22/2011. As to Claim 8, class is defined as "all California state prisoners who have been sentenced to life term with possibility of parole for an offense that occurred before 11/4/2008." As to Claim 9, class is defined as "all California state prisoners who have been sentenced to life term with possibility of parole for offense that occurred before 11/8/1988." As to all other claims, class is defined as "all California state prisoners who have been sentenced to life term with possibility of parole and have reached eligibility for parole consideration hearing." (Marciel, M) (Entered: 04/25/2011)
341 Plaintiffs' NOTICE OF LODGING of EXHIBIT Admitted At Evidentiary Hearing by Richard M. Gilman. (Attachments: # 1 Table of Contents, # 2 Exhibit 34, # 3 Exhibit 35, # 4 Exhibit 36, # 5 Exhibit 37, # 6 Exhibit 38, # 7 Exhibit 39, # 8 Exhibit 40, # 9 Exhibit 41, # 10 Exhibit 42, # 11 Exhibit 43.1, # 12 Exhibit 43.2)(Knox, Monica) Modified on 4/28/2011 (Mena−Sanchez, L). (Entered: 04/26/2011)
342 Plaintiff's NOTICE OF LODGING of EXHIBITS Admitted At Evidentiary Hearing by Richard M. Gilman. (Attachments: # 1 Exhibit 43, # 2 Exhibit 43.4, # 3 Exhibit 44, # 4 Exhibit 44.1, # 5 Exhibit 45, # 6 Exhibit 45.1, # 7 Exhibit 46, # 8 Exhibit 46.1, # 9 Exhibit 46.3)(Knox, Monica) Modified on 4/28/2011 (Mena−Sanchez, L). (Entered: 04/26/2011)
343 Plaintiff's NOTICE OF LODGING of EXHIBITS Admitted At Evidentiary Hearing by Richard M. Gilman. (Attachments: # 1 Exhibit 47, # 2 Exhibit 47.1, # 3 Exhibit 48, # 4 Exhibit 48.1, # 5 Exhibit 49, # 6 Exhibit 50, # 7 Exhibit 51, # 8 Exhibit 52, # 9 Exhibit 53, # 10 Exhibit 54, # 11 Exhibit 55, # 12 Exhibit 56, # 13 Exhibit 57, # 14 Exhibit 58, # 15 Exhibit 59)(Knox, Monica) Modified on 4/28/2011 (Mena−Sanchez, L). (Entered: 04/26/2011)
344 Pliantiffs' NOTICE OF LODGING of EXHIBITS Admitted At Evidentiary Hearing by Richard M. Gilman. (Attachments: # 1 Exhibit 60, # 2 Exhibit 61, # 3 Exhibit 62, # 4 Exhibit 63, # 5 Exhibit 63.1, # 6 Exhibit 63.2, # 7 Exhibit 63.4, # 8 Exhibit 63.5, # 9 Exhibit 64, # 10 Exhibit 64.1, # 11 Exhibit 64.2, # 12 Exhibit 64.4, # 13 Exhibit 65)(Knox, Monica) Modified on 4/28/2011 (Mena−Sanchez, L). (Entered: 04/26/2011)
345 Plaintiffs' NOTICE of Lodging of Sealed Exhibits Admitted At Evidentiary Hearing by Richard M. Gilman re 338 Order. (Knox, Monica) Modified on 4/28/2011 (Mena−Sanchez, L). (Entered: 04/26/2011)
346 SEALED EVENT (Attachments: # 1 Part 2, # 2 Part 3, # 3 Part 4, # 4 Part 5, # 5 Part 6, # 6 Part 7, # 7 Part 8, # 8 Part 9, # 9 Part 10, # 10 Part 11, # 11 Part 12, # 12 Part 13, # 13 Part 14, # 14 Part 15) (Kastilahn, A) (Entered: 04/27/2011)
347 TRANSCRIPT of Evidentiary Hearing held on 4/6/11, before Senior Judge Lawrence K. Karlton, filed by Court Reporter Kelly OHalloran, Phone number 916−448−2712 E−mail kohalloran@comcast.net. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may also be obtained through PACER. Any Notice of Intent to Request Redaction must be filed within 5 court days. Redaction Request due 6/9/2011. Redacted Transcript Deadline set for 6/17/2011. Release of Transcript Restriction set for 8/15/2011. (O'Halloran, K) (Entered: 05/17/2011)
348 NOTICE of INTENT to REQUEST REDACTION by Michael William Pott re 347 Transcript,, (Pott, Michael) (Entered: 05/24/2011)
349 PROPOSED ORDER and REQUEST for Additional Redactions to Transcript of Evidentiary Hearing 347 by Arnold Schwarzenegger. (Pott, Michael) Modified on 6/8/2011 (Reader, L). (Entered: 06/07/2011)

Case: 2:05-cv-830 As of: 11/06/2017 01:21 PM PST 35 of 50

06/09/2011 06/15/2011 06/16/2011 06/16/2011
06/27/2011 06/27/2011
07/05/2011 07/05/2011 07/11/2011 07/25/2011
08/15/2011 08/17/2011
08/17/2011 08/24/2011 08/24/2011 08/29/2011 08/31/2011

350 NOTICE OF WITHDRAWAL of Request for Additional Redactions by Arnold Schwarzenegger, re 349 Request. (Pott, Michael) Modified on 6/9/2011 (Reader, L). (Entered: 06/09/2011)
351 REQUEST for extension of time for filing Plaintiffs' post−hearing brief by Richard M. Gilman. (Porter, David) (Entered: 06/15/2011)
352 RESPONSE by Arnold Schwarzenegger to 351 Request. (Pott, Michael) (Entered: 06/16/2011)
353 ORDER signed by Senior Judge Lawrence K. Karlton on 06/16/11 ORDERING that the deadline for plf's post−hearing brief is EXTENDED to 06/27/11; dft's deadline for their post−hearing brief is EXTENDED to 06/27/11. (Benson, A.) (Entered: 06/16/2011)
354 STIPULATION and PROPOSED ORDER for Request to Extend the Time for Filing Plaintiffs' Post−Hearing Brief; Declartion of Counsel by Richard M. Gilman. (Knox, Monica) (Entered: 06/27/2011)
355 ORDER signed by Senior Judge Lawrence K. Karlton on 6/27/11 ORDERING that Pursuant to the request of Plaintiffs, and good cause appearing therefor, the deadline for the filing of all parties' post−hearing briefs is extended to July 5, 2011. (Becknal, R) (Entered: 06/27/2011)
356 PLAINTIFF'S Post−Evidentiary Hearing Brief re Preliminary Injunction by Richard M. Gilman. (Knox, Monica) (Entered: 07/05/2011)
357 DEFENDANTS' Post−Hearing Brief for evidentiary hearing on Plaintiffs' Motion for Preliminary Injunction by Arnold Schwarzenegger. (Attachments: # 1 Declaration)(Pott, Michael). (Entered: 07/05/2011)
358 CORRECTED BRIEF Post−Evidentiary Hearing Re: Preliminary Injunction by Richard M. Gilman. (Knox, Monica) (Entered: 07/11/2011)
359 ORDER signed by Senior Judge Lawrence K. Karlton on 7/22/2011 ORDERING that the parties are ORDERED TO SHOW CAUSE why a statistical expert witness or witnesses should not be appointed to analyze the issues discussed above within thirty (30) days. The parties are FURTHER ORDERED TO SHOW CAUSE as to why, if the court appoints an expert or experts, it should not apportion half of the expert costs to plaintiffs and half to defendants within thirty (30) days. The parties are FURTHER ORDERED to either stipulate to an expert witness or witnesses or to each provide the court with three nominations for such a witness or witnesses within thirty (30) days. (Duong, D) (Entered: 07/25/2011)
360 JOINDER in this case and Request for Judicial Notice by Timothy Leang Jones, Darrel King. (Duong, D) Modified on 8/17/2011 (Reader, L). (Entered: 08/16/2011)
361 ORDER signed by Senior Judge Lawrence K. Karlton on 8/16/2011 ORDERING 360 The motion for permissive joinder, is DENIED; and The Clerk of Court is instructed to serve a copy of this order upon Darrel King and Timothy Leang Jones at the address listed in his motion. (cc: USPS, D.King and T.L.Jones @ KVSP) (Reader, L) (Entered: 08/17/2011)
SERVICE BY MAIL: 361 Order on Motion for Joiner, served on Timothy Leang Jones, Darrel King. (Reader, L) (Entered: 08/17/2011)
362 RESPONSE to 7/25/2011 359 Order to Show Cause by Richard M. Gilman. (Attachments: # 1 Exhibit A, # 2 Exhibit B) (Broderick, Daniel) Modified on 8/25/2011 (Marciel, M). (Entered: 08/24/2011)
363 RESPONSE to 359 Order to Show Cause by Arnold Schwarzenegger. (Attachments: # 1 Exhibits A − D) (Pott, Michael) Modified on 8/25/2011 (Marciel, M). (Entered: 08/24/2011)
364 MOTION for RECONSIDERATION for petition for permissive joinder by Darrell King. (Reader, L) (Entered: 08/30/2011)
365 ORDER signed by Judge Lawrence K. Karlton on 8/31/2011 ORDERING Professor Berk is APPOINTED as neutral expert witness; Professor Berk shall be compensated

Case: 2:05-cv-830 As of: 11/06/2017 01:21 PM PST 36 of 50

09/02/2011 09/02/2011 09/08/2011 09/12/2011
09/12/2011 09/14/2011
09/21/2011 09/22/2011 09/23/2011 09/23/2011 09/27/2011
09/28/2011 09/29/2011

at the rate of $250 per hour and shall submit quarterly itemized bills to the court; the court will file the bills and provide the parties with 14 days to object; the court will then direct payment of the bill in full, or in part; plaintiffs shall submit to the court w/i 14 days of this order an electronic version of all data described above; they must also serve a copy of such data upon defendants; the 9/6/2011 status conference in this case is VACATED. (Waggoner, D) (Entered: 08/31/2011)
366 ORDER signed by Judge Lawrence K. Karlton on 9/1/11 ORDERING that Mr. King and Mr. Jones' Motion for Reconsideration and Requeest for an Interlocutory appeal 364 is DENIED. The Clerk is instructed to serve this order upon Mr. King and Mr. Jones at the address listed on the Motion. (Mena−Sanchez, L) (Entered: 09/02/2011)
SERVICE BY MAIL re ORDER 366 on Darrel King and Timonthy Leang Jones at P.O. Box 501 Delano, CA 93216. (Mena−Sanchez, L) (Entered: 09/02/2011)
367 MOTION to COMPEL production of documents and to STRIKE objections by Richard M. Gilman. Motion Hearing set for 9/29/2011 at 10:00 AM in Courtroom 9 (GGH) before Magistrate Judge Gregory G. Hollows. (Knox, Monica) Modified on 9/9/2011 (Marciel, M). (Entered: 09/08/2011)
368 RESPONSE by Richard M. Gilman to 365 Order, Terminate Deadlines and Hearings,,,,. (Attachments: # 1 Declaration of Monica Knox, # 2 December 16, 2010 Protective Order and Nondisclosure Agreement, # 3 Governor's Executive Report for 2007, # 4 Governor's Executive Report for 2008, # 5 Governor's Executive Report for 2009)(Porter, David) (Entered: 09/12/2011)
369 NOTICE of lodging of CD containing Governor's Executive Reports 2007, 2008, 2009, 2010 by Richard M. Gilman re 368 Response. (CC received and routed to the fileroom)(Porter, David) Modified on 9/13/2011 (Becknal, R). (Entered: 09/12/2011)
370 MINUTES (Text Only) for proceedings held before Judge Lawrence K. Karlton: STATUS CONFERENCE re Plaintiffs' Response to 08/31/2011 Order 368 held on 9/14/2011. After discussions, plaintiffs' request for an additional three weeks to obtain the Rutherford data is GRANTED. Court order to follow. Plaintiffs Counsel David Porter, Monica Knox, Carter White, Dan Broderick present. Defendants Counsel Michael Pott, Glen Williams present. (Rivas, A) Modified on 9/15/2011 (Rivas, A). (Entered: 09/15/2011)
MAIL RETURNED as Fwd time expired KVSP 3130 Delano CA 93215−3130: 366 Order on Motion for Reconsideration, sent to Timothy Leang Jones. Notice of Change of Address due by 12/1/2011. (Mena−Sanchez, L) (Entered: 09/22/2011)
371 STATEMENT of joint discovery statement by Plaintiff Richard M. Gilman re 367 Motion to Compel Production of Documents and to Strike Objections. (Attachments: # 1 Declaration of Glen A. Williams, # 2 Declaration of Thomas Remy)(Porter, David) (Entered: 09/22/2011)
RE−SERVICE BY MAIL re ORDER 366 on Timonthy Leang Jones at KVSP P.O. Box 3130 Delano, CA 93215−3130 (Mena−Sanchez, L) (Entered: 09/23/2011)
372 CORRECTED Joint Statement re: Discovery Disagreements by Plaintiff Richard M. Gilman re 367 Motion to Compel Production of Documents and to Strike Objections. (Attachments: # 1 Declaration of Glen A. Williams, # 2 Declaration of Thomas Remy)(Porter, David) Modified on 9/26/2011 (Michel, G). (Entered: 09/23/2011)
373 ORDER signed by Judge Lawrence K. Karlton on 9/26/2011 ORDERING that the Court's 370 Order granting Pltfs three additional weeks to submit the Rutherford data, is VACATED. Within 7 days, Pltfs shall submit to the Court a disk containing the evidence presented at the evidentiary hearing. Pltfs are not required to submit the raw Rutherford data. (Zignago, K.) (Entered: 09/27/2011)
374 NOTICE of LODGING DOCUMENT in PAPER by Richard M. Gilman: 3 Disks. (Porter, David) [1 copy routed to Chambers & 2 routed to Fileroom] Modified on 9/28/2011 (Marciel, M). (Entered: 09/28/2011)
375 NOTICE OF LODGING DOCUMENT IN PAPER by Richard M. Gilman: Amended Notice of Lodging. (Broderick, Daniel) Modified on 9/29/2011. Received on 9/29/11: 1 copy routed to chambers and 2 routed to file room. (Meuleman, A). Modified on

Case: 2:05-cv-830 As of: 11/06/2017 01:21 PM PST 37 of 50

09/29/2011
10/03/2011
10/26/2011 10/27/2011 10/31/2011
11/04/2011 11/16/2011 11/30/2011 11/30/2011
11/30/2011 11/30/2011 12/05/2011 12/05/2011 12/06/2011 12/07/2011

9/29/2011 (Meuleman, A). (Entered: 09/29/2011)
376 MINUTES (Text Only) for proceedings held before Magistrate Judge Gregory G. Hollows: MOTION HEARING held on 9/29/2011 re 367 Motion to Compel Production of Documents and to Strike Objections filed by Richard M. Gilman. Defense Counsel request sixty days to provide discovery. Plaintiff objects stating this matter is already six years old. The court agrees with plaintiff and states, we need to move this matter along. The court gives Defense Counsel forty days to provide discovery, which shall be limited to class members only. Plaintiffs Counsel Monica Knox, Daniel Broderick, and Carter White present. Defendants Counsel Glen A. Williams present. Court Reporter/CD Number: 1 of 1. (Callen, V) (Entered: 09/29/2011)
377 ORDER signed by Magistrate Judge Gregory G. Hollows on 09/30/11 ordering plaintiff's motion for production of documents in response to request for production No. 3 of plaintiff's requests for production of documents, set 3 filed on 09/08/11 367 is granted as set forth below. (See order for further details) (Plummer, M) (Entered: 10/03/2011)
378 EX PARTE MOTION TO REDACT certain information from defendants' production of documents , by Arnold Schwarzenegger. (Attachments: # 1Memorandum of Points and Authorities, # 2 Declaration of Michael W. Pott, # 3 Declaration of Everett Fischer)(Pott, Michael) Modified on 10/27/2011 (Kastilahn, A). (Entered: 10/26/2011)
379 OPPOSITION by Richard M. Gilman to 378 MOTION. (Porter, David) (Entered: 10/27/2011)
380 ORDER signed by Magistrate Judge Gregory G. Hollows on 10/28/11 ordering that defendants' 10/26/11 Motion for redaction of certain information from the Executive Case Summaries, previously ordered produced subject to a protective order 378 is denied except insofar as the court has ordered additional protection above. (Plummer, M) (Entered: 10/31/2011)
381 REQUEST for STATUS / DISPOSITION by movant Darrel King. (Marciel, M) (Entered: 11/07/2011)
382 REQUEST for Court to set deadline for Expert Witness's Report by Richard M. Gilman. (Attachments: # 1 Proposed Order) (Porter, David) Modified on 11/30/2011 (Marciel, M). (Entered: 11/16/2011)
383 TRANSCRIPT REQUEST by Richard M. Gilman for proceedings held on 9/29/2011 before Judge Hollows, (Porter, David) (Entered: 11/30/2011)
384 ORDER signed by Judge Lawrence K. Karlton on 11/30/2011. Court is in receipt of Report by Professor Richard Berk, which is ordered filed herewith. Parties are GRANTED 20 days to file such Supplemental Briefs as they believe are justified by virtue of the Report. Thereafter, the matter will stand SUBMITTED. (Attachments: # 1 Report on Statistical Analyses) (Marciel, M) (Entered: 11/30/2011)
385 NOTICE signed by Judge Lawrence K. Karlton ordering parties to pay bill submitted by Professor Richard Berk. (Zignago, K.) (Entered: 12/02/2011)
386 JOINDER by Karimi Sutton. (Zignago, K.) (Entered: 12/02/2011)
387 ORDER signed by Judge Lawrence K. Karlton on 12/5/2011 DENYING 386 Joinder filed by Karimi Sutton. (cc: Karimi Sutton) (Michel, G) (Entered: 12/05/2011)
SERVICE BY MAIL: 387 Order served on Karimi Sutton. (Michel, G) (Entered: 12/05/2011)
388 SUBSTITUTION of ATTORNEY − PROPOSED, submitted by Noreen Blonien, Board of Parole Hearings, J. Davis, L Dininni, Susan Fisher, M. Hochino, Dennis Kenneally, Jones Moore, M. Perez, Arnold Schwarzenegger, Booker Welch. (Neill, Jennifer) (Entered: 12/06/2011)
389 ORDER SUBSTITUTING ATTORNEY signed by Judge Lawrence K. Karlton on 12/7/2011 ORDERING that attorneys Christopher John Rench,Sara Romano and Jennifer Anne Neill substitute for Defendants Governor Edmund G. Brown Jr., the Chairperson of the Board of Parole Hearings, All Commissioners of the Board of

Case: 2:05-cv-830 As of: 11/06/2017 01:21 PM PST 38 of 50

12/20/2011 12/20/2011 12/27/2011
12/28/2011 12/28/2011 01/11/2012 01/11/2012 01/30/2012 02/03/2012 02/13/2012
02/14/2012 02/16/2012 02/16/2012 02/22/2012

Parole Hearings, and All Deputy Commissioners of the Board of Parole Hearings Who Hear Lifer Cases in place of the law firm of Porter Scott, a Professional Corporation, 350 University Avenue, Suite 200, Sacramento, California, 95825, counsel Terrence J. Cassidy, Michael W. Pott, and Glen A. William. (Duong, D) (Entered: 12/07/2011)
390 SUPPLEMENT BRIEF by Defendants re 384 Order. Attorney Rench, Christopher John added. (Attachments: # 1 Proof of Service Certificate of Service)(Rench, Christopher) Modified on 12/21/2011 (Kastilahn, A). (Entered: 12/20/2011)
391 RESPONSE by Richard M. Gilman to 384 Order. (Attachments: # 1 Declaration of Dr. Barry Krisberg)(Knox, Monica) (Entered: 12/20/2011)
392 TRANSCRIPT of Plaintiff's Motion to Compel Production of Documents and to Strike Objections Proceedings held on 09/29/2011, before Magistrate Judge Gregory G. Hollows. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction must be filed within 5 court days. Redaction Request due 1/20/2012. Redacted Transcript Deadline set for 1/27/2012. Release of Transcript Restriction set for 3/26/2012 filed by ECRO Jonathan Anderson, Phone number 916−930−4072 E−mail janderson@caed.uscourts.gov. (Anderson, J) (Entered: 12/27/2011)
393 Defendants' OBJECTION to Declaration of Dr. Barry Krisberg. Attorney Romano, Sara added. (Romano, Sara) Modified on 12/29/2011 (Mena−Sanchez, L). (Entered: 12/28/2011)
PARTY UPDATE: Karimi Sutton TERMINATED pursuant to 387 Order Denying 386 Joinder. (Michel, G) (Entered: 12/28/2011)
394 MOTION for LEAVE TO FILE AN AMENDED ANSWER to Plaintiffs' [Corrected] Fourth Amended/Supplemental Complaint for Declaratory and Injunctive Relief − Class Action by Edmund G. Brown, Jr. (Attachments: # 1 Exhibit 1)(Romano, Sara) Modified on 1/11/2012 (Benson, A.). (Entered: 01/11/2012)
395 PROPOSED ORDER re 394 Motion for Leave by Edmund G. Brown, Jr. (Romano, Sara) Modified on 1/11/2012 (Benson, A.). (Entered: 01/11/2012)
396 OPPOSITION by Richard M. Gilman to 394 Motion for Leave to File an Amended Answer. (Porter, David) (Entered: 01/30/2012)
397 REPLY by Edmund G. Brown, Jr. in Support of 394 Motion to Amend Answer. (Romano, Sara) Modified on 2/6/2012 (Reader, L). (Entered: 02/03/2012)
398 MINUTES (Text Only) for proceedings held before Judge Lawrence K. Karlton: MOTION HEARING held on 2/13/2012. The Court GRANTS Defendant's Motion for Leave to Amend 394 . Defense counsel to prepare a formal order. Plaintiffs Counsel David Porter and Carter White present. Defendants Counsel Christopher Rench and Sara Romano present. Court Reporter: Michelle Babbitt. (Krueger, M) (Entered: 02/13/2012)
399 PROPOSED ORDER re 394 Motion for Leave to File an Amended Answer. (Attachments: # 1 Proof of Service)(Romano, Sara) Modified on 2/15/2012 (Kaminski, H). (Entered: 02/14/2012)
400 STIPULATION and ORDER signed by Judge Lawrence K. Karlton on 2/16/12 GRANTING 394 Motion for Leave to File an Amended Answer. Counsel for defendants is directed to file the amended answer submitted with the 1/11/12 motion. (Manzer, C) (Entered: 02/16/2012)
401 AMENDED ANSWER by Edmund G. Brown, Jr. Amending 221 Answer to Complaint. (Romano, Sara) Modified on 2/16/2012 (Kaminski, H). (Entered: 02/16/2012)
402 RESPONSE by Noreen Blonien, Board of Parole Hearings, Edmund G. Brown, Jr., J. Davis, L Dininni, Susan Fisher, Richard M. Gilman, M. Hochino, Dennis Kenneally, Jones Moore, M. Perez, Arnold Schwarzenegger, Booker Welch to 385 Notice − Other. Attorney Rench, Christopher John added. (Rench, Christopher) (Entered:

Case: 2:05-cv-830 As of: 11/06/2017 01:21 PM PST 39 of 50

02/22/2012 03/15/2012
03/21/2012 04/03/2012 04/03/2012 04/05/2012
04/05/2012 04/05/2012 04/06/2012 04/09/2012 04/10/2012 04/12/2012
04/30/2012

02/22/2012)
403 NOTICE of Payment to Court Expert by Richard M. Gilman. (Attachments: # 1 copy of payment)(Porter, David) (Entered: 02/22/2012)
404 MOTION for JUDGMENT on the Pleadings by Noreen Blonien, Board of Parole Hearings, Edmund G. Brown, Jr, J. Davis, L Dininni, Susan Fisher, M. Hochino, Dennis Kenneally, Jones Moore, M. Perez, Arnold Schwarzenegger, Booker Welch. Motion Hearing set for 4/23/2012 at 10:00 AM in Courtroom 4 (LKK) before Judge Lawrence K. Karlton. (Rench, Christopher) Modified on 3/16/2012 (Reader, L). (Entered: 03/15/2012)
405 ORDER signed by Judge Lawrence K. Karlton on 3/20/2012 ORDERING defendants SHALL file a reply to plaintiffs' response brief no later than 14 days from the issuance of this order.(Reader, L) (Entered: 03/21/2012)
406 STIPULATION and PROPOSED ORDER for /To Reset Hearing Date by Richard M. Gilman. (Porter, David) (Entered: 04/03/2012)
407 REPLY by Noreen Blonien, Board of Parole Hearings, Edmund G. Brown, Jr, J. Davis, L Dininni, Susan Fisher, M. Hochino, Dennis Kenneally, Jones Moore, M. Perez, Arnold Schwarzenegger, Booker Welch re 405 Order, 391 Response. (Rench, Christopher) (Entered: 04/03/2012)
408 STIPULATION and ORDER signed by Judge Lawrence K. Karlton on 4/4/12 ORDERING that Defendants' MOTION 404 for JUDGMENT on the pleadings hearing is CONTINUED from 4/30/12 to 5/21/2012 at 10:00 AM in Courtroom 4 (LKK) before Judge Lawrence K. Karlton. Plaintiffs opposition shall be filed on or before 4/30/12, and Defendants reply, if any, shall be filed on or before 5/14/12.(Mena−Sanchez, L) (Entered: 04/05/2012)
409 ORDER signed by Judge Lawrence K. Karlton on 4/4/12 ORDERING that Plaintiff's MOTION for a Preliminary Injunction 284 is DENIED. A Status Conference is SET for 4/30/2012 at 03:30 AM in Courtroom 4 (LKK) before Judge Lawrence K. Karlton. (Mena−Sanchez, L) (Entered: 04/05/2012)
410 REQUEST for Permission to Contact Statistical Expert Richard Berk by Richard M. Gilman. (Broderick, Daniel) Modified on 4/6/2012 (Michel, G). (Entered: 04/05/2012)
411 ORDER signed by Judge Lawrence K. Karlton on 4/5/2012 GRANTING 410 Request for Permission to Contact Statistical Expert Richard Berk. (Michel, G) (Entered: 04/06/2012)
412 EX PARTE REQUEST for Modification of September 30, 2011 Discovery Order by Richard M. Gilman. (Attachments: # 1 Proposed Order, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C)(Knox, Monica) (Entered: 04/09/2012)
413 OPPOSITION by Board of Parole Hearings, Edmund G. Brown, Jr, J. Davis, L Dininni, Susan Fisher, M. Hochino, Dennis Kenneally, Jones Moore, M. Perez, Arnold Schwarzenegger, Booker Welch to 412 Ex parte Request. (Rench, Christopher) (Entered: 04/10/2012)
414 ORDER signed by Magistrate Judge Gregory G. Hollows on 4/11/12 ORDERING that Plaintiffs 412 request for modification of the discovery order at docket 377 is DENIED insofar as plaintiffs seek an order requiring production of Executive Case Summaries for the period for which Decision Face Sheets have been produced, but defendants are hereby directed to provide a spreadsheet that provides each inmates name, correctional identification number and parole release date from the Executive Case Summaries for all convicted murderers within the subclass granted parole by the BPH from January 1, 2009 to August 31, 2011; and The spreadsheet identifying inmates and their parole release dates must be produced to plaintiffs by no later than April 19, 2012, and must be submitted with a declaration under penalty of perjury attesting to its accuracy and completeness.(Dillon, M) (Entered: 04/12/2012)
415 MINUTES (Text Only) for proceedings held before Judge Lawrence K. Karlton: SCHEDULING CONFERENCE held on 4/30/2012. Final Pretrial Conference set for 12/17/2012 at 1:30 PM in Courtroom 4 (LKK) before Judge Lawrence K. Karlton. A 4 Day Court Trial set for 3/19/2013 at 10:30 AM in Courtroom 4 (LKK) before Judge

Case: 2:05-cv-830 As of: 11/06/2017 01:21 PM PST 40 of 50

04/30/2012 05/03/2012
05/14/2012
05/21/2012
05/31/2012 06/01/2012 06/29/2012 06/29/2012
07/03/2012 08/07/2012 08/07/2012 08/07/2012 08/07/2012

Lawrence K. Karlton. Court Order to follow. Plaintiffs Counsel David Porter present. Defendants Counsel Christopher Rench, Sara Romano, and Jennifer Neill present. (Krueger, M) (Entered: 04/30/2012)
416 OPPOSITION by Richard M. Gilman to 404 MOTION for JUDGMENT on the pleadings. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Porter, David) (Entered: 04/30/2012)
417 STATUS (PRETRIAL SCHEDULING) CONFERENCE ORDER signed by Judge Lawrence K. Karlton on 5/2/12: Discovery due by 7/16/2012. Completed Motions due 9/16/12 (all law and motion matters must be heard by this date); Final Pretrial Conference set for 12/17/2012 at 01:30 PM in Courtroom 4 (LKK) before Judge Lawrence K. Karlton. Bench Trial set for 3/19/2013 at 10:30 AM in Courtroom 4 (LKK) before Judge Lawrence K. Karlton. The parties represent in good faith that the trial will take approximately 4 days. (Meuleman, A) (Entered: 05/03/2012)
418 REPLY by Noreen Blonien, Board of Parole Hearings, Edmund G. Brown, Jr, J. Davis, L Dininni, Susan Fisher, M. Hochino, Dennis Kenneally, Jones Moore, M. Perez, Arnold Schwarzenegger, Booker Welch re 416 Opposition to Motion. (Attachments: # 1 Proof of Service Certificate of Service)(Rench, Christopher) (Entered: 05/14/2012)
419 MINUTES (Text Only) for proceedings held before Judge Lawrence K. Karlton: MOTION HEARING held on 5/21/2012 re 404 MOTION for JUDGMENT on the filed by Defendants. After oral argument, the Motion STANDS SUBMITTED. A Court Order to follow. Plaintiffs Counsel David Porter present. Defendants Counsel Christopher Rench and Sara Romano present. Court Reporter: C. Bodene. (Krueger, M) (Entered: 05/21/2012)
420 ORDER signed by Judge Lawrence K. Karlton on 5/30/2012 GRANTING 404 Motion for Judgment on the Pleadings with respect to claims 2, 4, 5, and 7; DENYING 404 Motion for Judgment on the Pleadings with respect to all remaining claims. (Michel, G) (Entered: 05/31/2012)
421 DESIGNATION/DISCLOSURE of EXPERT WITNESS by Richard M. Gilman. (Attachments: # 1 Declaration Expert Report of Barry Krisberg, Ph.D., # 2 Exhibit Curriculum Vitae of Barry Krisberg, Ph.D.)(Porter, David) (Entered: 06/01/2012)
422 DESIGNATION/DISCLOSURE of EXPERT WITNESS by Edmund G. Brown, Jr. (Attachments: # 1 Exhibit 1)(Rench, Christopher) Modified on 7/3/2012 (Zignago, K.). (Entered: 06/29/2012)
423 MID−LITIGATION STATEMENT by Defendants Noreen Blonien, Board of Parole Hearings, Edmund G. Brown, Jr, J. Davis, L Dininni, Susan Fisher, M. Hochino, Dennis Kenneally, Jones Moore, M. Perez, Arnold Schwarzenegger, Booker Welch. Attorney Romano, Sara added. (Attachments: # 1 Proof of Service)(Romano, Sara) Modified on 7/3/2012 (Zignago, K.). (Entered: 06/29/2012)
424 STATEMENT of midlitigation status by Plaintiff Richard M. Gilman. (Porter, David) (Entered: 07/03/2012)
425 MOTION for SUMMARY JUDGMENT by defendants. Motion Hearing set for 9/4/2012 at 10:00 AM in Courtroom 4 (LKK) before Judge Lawrence K. Karlton. (Rench, Christopher) Modified on 8/22/2012 (Marciel, M) (Entered: 08/07/2012)
426 MOTION to DECERTIFY each plaintiff class by defendants. Motion Hearing set for 9/4/2012 at 10:00 AM in Courtroom 4 (LKK) before Judge Lawrence K. Karlton. (Rench, Christopher) Modified on 8/22/2012 (Marciel, M) Modified on 5/7/2013 (Meuleman, A). (Entered: 08/07/2012)
427 NOTICE of Request to Seal Document(s) pursuant to L.R. 141 by Richard M. Gilman. (Attachments: # 1 Proposed Order)(Knox, Monica) (Entered: 08/07/2012)
428 MOTION for SUMMARY JUDGMENT or, alternatively, for PRELIMINARY INJUNCTION by Richard M. Gilman. Motion Hearing set for 9/4/2012 at 10:00 AM before Judge Lawrence K. Karlton. (Attachments: # 1 Points and Authorities, # 2 Declaration of Monica Knox, # 3 Statement of Undisputed Facts, # 4 Exhibit 1, # 5 Exhibit 2, # 6 Exhibit 3, # 7 Exhibit 4, # 8 Exhibit 5, # 9 Exhibit 6, # 10 Exhibit 7, #

Case: 2:05-cv-830 As of: 11/06/2017 01:21 PM PST 41 of 50

08/21/2012 08/21/2012 08/21/2012 08/21/2012 08/21/2012 08/21/2012 08/21/2012 08/23/2012 08/27/2012
08/28/2012 08/31/2012 08/31/2012 08/31/2012 08/31/2012

11 Exhibit 8, # 12 Exhibit 9, # 13 Exhibit 10, # 14 Exhibit 11) (Knox, Monica) Modified on 8/8/2012 (Reader, L) (Entered: 08/07/2012)
429 NOTICE of ASSOCIATION of COUNSEL by attorney Maria Chan for defendants. Attorney Chan, Maria G. added. (Chan, Maria) Modified on 8/21/2012 (Marciel, M) (Entered: 08/21/2012)
430 OPPOSITION by defendants to 428 Motion for Summary Judgment or, alternatively, for Preliminary Injunction. Attorney Chan, Maria G. added. (Chan, Maria) Modified on 8/21/2012 (Marciel, M) (Entered: 08/21/2012)
431 OPPOSITION by Richard M. Gilman to 426 Motion to Decertify each plaintiff class. (Knox, Monica) Modified on 8/22/2012 (Marciel, M) (Entered: 08/21/2012)
432 MOTION for LEAVE to file Fifth 143 Amended Complaint by Richard M. Gilman. Motion Hearing set for 9/4/2012 at 10:00 AM in Courtroom 4 (LKK) before Judge Lawrence K. Karlton. (Porter, David) Modified on 8/22/2012 (Marciel, M) (Entered: 08/21/2012)
433 EX PARTE MOTION to SHORTEN TIME for hearing on 432 Motion for Leave to file Fifth Amended Complaint by Richard M. Gilman. (Attachments: # 1 Proposed Order) (Porter, David) Modified on 8/22/2012 (Marciel, M) (Entered: 08/21/2012)
434 LODGED − FIFTH AMENDED / SUPPLEMENTAL COMPLAINT for Declaratory and Injunctive Relief −− Class Action filed by Richard M. Gilman. (Porter, David) Modified on 8/22/2012 (Marciel, M) (Entered: 08/21/2012)
435 OPPOSITION by Richard M. Gilman to 425 Motion for Summary Judgment. (Attachments: # 1 Declaration of Monica Knox in support, # 2 Response in Opposition to Statement of Undisputed Facts, # 3 Statement of Facts in Opposition) (Porter, David) Modified on 8/22/2012 (Marciel, M) (Entered: 08/21/2012)
436 OPPOSITION by defendants to 433 Ex Parte Motion to Shorten Time to file 432 Motion for Leave to file Fifth Amended Complaint. (Chan, Maria) Modified on 8/24/2012 (Marciel, M) (Entered: 08/23/2012)
437 ORDER signed by Judge Lawrence K. Karlton on 8/27/12 ORDERING that 433 the application for an order shortening time is GRANTED. Defendants reply to plaintiffs' 432 Motion for Leave to File the Fifth Amendment Complaint is due no later than 8/28/2012 at 4:30 p.m. Plaintiffs reply, if any, is due no later than 8/31/2012 at 4:30 p.m.. The motion for leave to amend is now SCHEDULED to be heard on 9/4/2012 at 10:00 a.m. on the court's regular Law & Motion Calendar. The cross−motions for summary judgment, the request to seal, and defendants' motion to decertify (Dkt. Nos. 425, 426 & 428), are REMOVED from the 9/4/2012 Law & Motion Calendar; and are SPECIALLY SET to be heard on 9/14/2012 at 10:00 AM in Courtroom 4 (LKK) before Judge Lawrence K. Karlton. Replies to those motions, if any, shall be filed no later than 8/31/2012 at 4:30 p.m. (Kastilahn, A) (Entered: 08/27/2012)
438 OPPOSITION by Noreen Blonien, Board of Parole Hearings, Edmund G. Brown, Jr, J. Davis, L Dininni, Susan Fisher, M. Hochino, Jones Moore, M. Perez, Arnold Schwarzenegger, Booker Welch to 432 Motion for Leave to file Fifth 143 Amended Complaint. (Chan, Maria) (Entered: 08/28/2012)
439 NOTICE of REQUEST to seal documents pursuant to L.R. 141 by Richard M. Gilman. (Attachments: # 1 Proof of Service) (Porter, David) Modified on 9/5/2012 (Marciel, M) (Entered: 08/31/2012)
440 REPLY by plaintiffs to Opposition to 428 Motion for Summary Judgment or, alternatively, Preliminary Injunction. (Attachments: # 1 Exhibit 12, # 2 Exhibit 13, # 3 Exhibit 14, # 4 Exhibit 15, # 5 Exhibit 16) (Porter, David) Modified on 9/5/2012 (Marciel, M) (Entered: 08/31/2012)
441 REPLY by Richard M. Gilman to defendants' Opposition to 432 Motion for Leave to file Fifth 143 Amended Complaint. (Porter, David) Modified on 9/5/2012 (Marciel, M) (Entered: 08/31/2012)
442 REPLY by defendants to plaintiffs' Opposition to 426 Motion to Decertify each plaintiff class. (Rench, Christopher) Modified on 9/5/2012 (Marciel, M) (Entered:

Case: 2:05-cv-830 As of: 11/06/2017 01:21 PM PST 42 of 50

08/31/2012 09/04/2012
09/07/2012 09/14/2012
12/03/2012 12/03/2012 12/10/2012 12/10/2012 12/17/2012 12/17/2012
01/10/2013 01/10/2013 01/11/2013 01/14/2013

08/31/2012)
443 REPLY by defendants to plaintiffs' 425 Motion for Summary Judgment. (Attachments: # 1 Exhibit) (Rench, Christopher) Modified on 9/5/2012 (Marciel, M) (Entered: 08/31/2012)
444 MINUTES (Text Only) for proceedings held before Judge Lawrence K. Karlton: MOTION HEARING held on 9/4/2012 re 432 Motion for Leave to file Fifth 143 Amended Complaint filed by Richard M. Gilman. After oral argument, the matter stands SUBMITTED. Court order to follow. Plaintiffs Counsel Daniel Broderick, David Porter present. Defendants Counsel Maria Chan, Christopher Rench present. Court Reporter: M. Babbitt. (Rivas, A) (Entered: 09/04/2012)
445 ORDER signed by Judge Lawrence K. Karlton on 9/6/2012 GRANTING 426 Motion to De−Certify the Class for Claims 1, 3 and 6; DENYING 432 Motion for leave to file a Fifth Amended Complaint. (Michel, G) (Entered: 09/07/2012)
446 MINUTES (Text Only) for proceedings held before Judge Lawrence K. Karlton: MOTION HEARING held on 9/14/2012 re 428 Motion for Summary Judgment or, alternatively, Preliminary Injunction filed by Richard M. Gilman, 426 Motion to Decertify each plaintiff class filed by Defendants, 425 Motion for Summary Judgment filed by Defendants. After oral argument, the matters stand SUBMITTED. Court order to follow. Plaintiffs Counsel David Porter, Monica Knox present. Defendants Counsel Christopher Rench, Maria Chan present. Court Reporter: M. Babbitt. (Rivas, A) (Entered: 09/14/2012)
447 PRETRIAL STATEMENT by Plaintiff Richard M. Gilman. (Attachments: # 1 Appendix Plaintiffs' Witness and Exhibit Lists)(Porter, David) (Entered: 12/03/2012)
448 STATEMENT of joint statement of facts by Plaintiff Richard M. Gilman. (Porter, David) (Entered: 12/03/2012)
449 PRETRIAL STATEMENT by Defendants Noreen Blonien, Board of Parole Hearings, Edmund G. Brown, Jr, J. Davis, L Dininni, M. Hochino, Jones Moore, Arnold Schwarzenegger, Booker Welch.(Rench, Christopher) (Entered: 12/10/2012)
450 MOTION for STAY or REMOVAL from CLASS ACTION STATUS filed by Emil Joseph Exdahl, III. (Marciel, M) (Entered: 12/11/2012)
451 ASSOCIATION of ATTORNEY: Added attorney Matthew McCrary Scoble for Richard M. Gilman. (Porter, David) (Entered: 12/17/2012)
452 MINUTES (Text Only) for proceedings held before Judge Lawrence K. Karlton: FINAL PRETRIAL CONFERENCE held on 12/17/2012. The parties are to meet on January 3, 2013 to go over the designated disputed facts. Updated Pretrial Conference Statements are due January 10, 2013. A Further Pretrial Conference is set for January 22, 2013 at 02:00 PM in Courtroom 4 (LKK) before Judge Lawrence K. Karlton. Plaintiffs Counsel Monica Knox, Matthew Scoble, David Porter, Carter White, Daniel Broderick present. Defendants Counsel Christopher J. Rench, Maria G. Chan, Jennifer A. Neill present. (Rivas, A) (Entered: 12/17/2012)
453 PRETRIAL STATEMENT by Defendants Noreen Blonien, Board of Parole Hearings, Edmund G. Brown, Jr, J. Davis, L Dininni, M. Hochino, Jones Moore, Arnold Schwarzenegger, Booker Welch. (Attachments: # 1 List of Witnesses and Exhibits)(Rench, Christopher) (Entered: 01/10/2013)
454 STATEMENT of revised joint statement of facts by Plaintiff Richard M. Gilman. (Porter, David) (Entered: 01/10/2013)
455 MOTION for 2−DAY EXTENSION OF TIME and Proposed Order, to File Updated Pretrial Statement by Richard M. Gilman. (Porter, David) Modified on 1/14/2013 (Reader, L). (Entered: 01/11/2013)
456 ORDER signed by Judge Lawrence K. Karlton on 1/14/2013 ORDERING 455 that the Plaintiffs' updated pretrial conference statement shall be filed on or before 1/14/2013. (Reader, L) (Entered: 01/14/2013)

Case: 2:05-cv-830 As of: 11/06/2017 01:21 PM PST 43 of 50

01/14/2013 01/22/2013
02/07/2013 02/08/2013 02/20/2013 02/21/2013 02/21/2013 02/22/2013 02/26/2013 02/28/2013 03/01/2013 03/01/2013 03/04/2013 03/06/2013 03/12/2013 03/18/2013

457 PRETRIAL STATEMENT by Plaintiff Richard M. Gilman. (Attachments: # 1 Updated Witness and Exhibit List)(Porter, David) (Entered: 01/14/2013)
458 MINUTES (Text Only) for proceedings held before Judge Lawrence K. Karlton: FINAL PRETRIAL CONFERENCE held on 1/22/2013. Bench Trial is CONTINUED TO 4/23/2013 at 10:30 AM in Courtroom 4 (LKK) before Judge Lawrence K. Karlton. Parties are to bring on Motions in Limine to be heard on 3/8/2013 at 10:00 AM in Courtroom 4 (LKK) before Judge Lawrence K. Karlton. Court order to follow. Plaintiffs Counsel Monica Knox, Matthew Scoble, David Porter, Carter White present. Defendants Counsel Christopher J. Rench, Maria G. Chan, Jennifer A. Neill present. (Rivas, A) (Entered: 01/24/2013)
459 PRETRIAL CONFERENCE ORDER [TENTATIVE] signed by Judge Lawrence K. Karlton on 2/7/13. Court Trial is now CONTINUED to 4/23/2013 at 10:30 AM in Courtroom 4 (LKK) before Judge Lawrence K. Karlton. (Mena−Sanchez, L) (Entered: 02/07/2013)
460 MOTION IN LIMINE & Memorandum of Points and Authorities by defendants. Motion Hearing set for 3/8/2013 at 10:00 AM in Courtroom 4 (LKK) before Judge Lawrence K. Karlton. (Rench, Christopher) Modified on 2/11/2013 (Kaminski, H). (Entered: 02/08/2013)
461 STIPULATION and PROPOSED ORDER to exchange Exhibits on or before 3/4/2013 by Richard M. Gilman. (Porter, David) Modified on 2/21/2013 (Marciel, M) (Entered: 02/20/2013)
462 OBJECTIONS by defendant Edmund G. Brown, Jr. to tentative 459 Pretrial Conference Order. (Rench, Christopher) Modified on 2/21/2013 (Marciel, M) (Entered: 02/21/2013)
463 OBJECTIONS by plaintiff Richard M. Gilman to 459 Pretrial Conference Order. (Porter, David) Modified on 2/22/2013 (Marciel, M) (Entered: 02/21/2013)
464 OPPOSITION by Richard M. Gilman to 460 MOTION IN LIMINE. (Porter, David) Modified on 2/25/2013 (Mena−Sanchez, L). (Entered: 02/22/2013)
465 STIPULATION and ORDER signed by Judge Lawrence K. Karlton on 2/25/2013 ORDERING that the 459 Pretrial Conference Order [Tentative] is AMENDED to provide that the parties shall exchange copies of exhibits on or before 3/4/2013. (Zignago, K.) (Entered: 02/26/2013)
466 RESPONSE by Edmund G. Brown, Jr to 463 Objections. (Rench, Christopher) (Entered: 02/28/2013)
467 DESIGNATION of COUNSEL FOR SERVICE., attorney Daniel J. Broderick terminated (Harter, Linda) (Entered: 03/01/2013)
468 REPLY by Edmund G. Brown, Jr re 464 Opposition to Motion. (Rench, Christopher) (Entered: 03/01/2013)
469 NOTICE of Letter regarding Vick's Opinion by Edmund G. Brown, Jr. (Attachments: # 1 Exhibit Vick's Opinion)(Rench, Christopher) Modified on 3/5/2013 (Kastilahn, A). (Entered: 03/04/2013)
470 ORDER signed by Judge Lawrence K. Karlton on 3/5/2013 ORDERING in limine Motions Hearing RESET for 5/13/2013 at 10:00 AM in Courtroom 4 (LKK) before Judge Lawrence K. Karlton; Trial RESET for 6/25/2013 at 10:30 AM in Courtroom 4 (LKK) before Judge Lawrence K. Karlton. (Waggoner, D) (Entered: 03/06/2013)
471 ORDER by Chief Judge Morrison C. England, Jr.: Due to the recalled appointment of Magistrate Judge * Gregory G. Hollows* to the bench of the Eastern District, this action is reassigned to *Magistrate Judge Carolyn K. Delaney* for all further proceedings. (Waggoner, D) (Entered: 03/12/2013)
472 OBJECTIONS TO PLAINTIFFS' PRETRIAL EXHIBITS by Defendants Noreen Blonien, Board of Parole Hearings, Edmund G. Brown, Jr, J. Davis, L Dininni, M. Hochino, Jones Moore, Arnold Schwarzenegger, Booker Welch. (Chan, Maria) Modified on 3/19/2013 (Meuleman, A). (Entered: 03/18/2013)

Case: 2:05-cv-830 As of: 11/06/2017 01:21 PM PST 44 of 50

04/02/2013 04/12/2013 04/26/2013
04/26/2013
04/26/2013 04/26/2013 05/07/2013
05/08/2013 05/13/2013
05/14/2013 05/15/2013 05/16/2013 05/17/2013 05/20/2013 05/23/2013

473 PRETRIAL CONFERENCE ORDER signed by Judge Lawrence K. Karlton on 3/29/13. (Meuleman, A) (Entered: 04/02/2013)
474 REQUEST to Opt−Out of class action by A. Davies. (Kaminski, H) Modified on 5/9/2013 (Rivas, A). (Entered: 04/15/2013)
475 ORDER signed by Judge Lawrence K. Karlton on 4/26/2013 ORDERING that the unopposed request to file documents under seal is GRANTED. The Clerk of the Court is directed to file and maintain Exhibits 1 and 5 to Plaintiffs' Motion for Summary Judgment and Preliminary Injunction under seal indefinitely. (Zignago, K.) (Entered: 04/26/2013)
476 ORDER signed by Judge Lawrence K. Karlton on 4/26/2013 ORDERING that the unopposed request to file documents under seal is GRANTED. The Clerk of the Court is directed to file and maintain Exhibit 14 to Plaintiffs' Reply to Opposition to Motion for Summary Judgment (BPH 6145 to BPH 21171) under seal indefinitely. (Zignago, K.) (Entered: 04/26/2013)
477 SEALED EVENT (Zignago, K.) (Entered: 04/26/2013)
478 SEALED EVENT (Zignago, K.) (Entered: 04/26/2013)
479 ORDER signed by Judge Lawrence K. Karlton on 5/6/13 DENYING 428 Motion for Summary Judgment; DENYING 425 Motion for Summary Judgment; and DENYING 426 Motion to Decertify the Remaining Classes. Motions to Opt Out of Class Action 450 and 474 are GRANTED. All currently scheduled dates in this matter are CONFIRMED. (Meuleman, A) Modified on 5/9/2013 (Rivas, A). (Entered: 05/07/2013)
480 DEFENDANT'S AMENDMENT TO 460 Motion in Limine by Edmund G. Brown, Jr. (Chan, Maria) Modified on 5/10/2013 (Becknal, R). (Entered: 05/08/2013)
481 MINUTES (Text Only) for proceedings held before Judge Lawrence K. Karlton: MOTION HEARING held on 5/13/2013 re 460 Motion in Limine. Arguments heard. After consideration, Defendant's motions in limine are GRANTED and/or DENIED as stated on the record in open court. Counsel are ordered to file and serve Proposed Findings of Fact and Conclusions of Law. Plaintiffs Counsel Matthew Scoble, Carter White, David Porter present. Defendants Counsel Christopher Rench, Maria Chan present. Court Reporter: M. Babbitt. (Rivas, A) Modified on 5/14/2013 (Rivas, A). (Entered: 05/14/2013)
482 APPLICATION by Richard M. Gilman for Reconsideration of 481 Order granting 460 Motion to Exclude proposed Exhibit 66. (Attachments: # 1 Proposed Order) (Porter, David) Modified on 5/15/2013 (Marciel, M) Modified on 5/17/2013 (Meuleman, A). (Entered: 05/14/2013)
483 RESPONSE by Edmund G. Brown, Jr. to plaintiffs' 482 Motion for Reconsideration. (Attachments: # 1 Certificate of Electronic Service) (Rench, Christopher) Modified on 5/15/2013 (Marciel, M) (Entered: 05/15/2013)
484 REPLY by plaintiffs to defendants' 483 Response to 482 Application for Reconsideration. (Porter, David) Modified on 5/17/2013 (Marciel, M) (Entered: 05/16/2013)
485 ORDER signed by Judge Lawrence K. Karlton on 5/16/13 DENYING 482 Application for Reconsideration. Plaintiffs are cautioned that they must comply with the Local Rules of this court, including those dealing with noticed motions and ex parte applications. (Meuleman, A) (Entered: 05/17/2013)
486 MOTION for RECONSIDERATION re 481 Order on Motions in Limine by Richard M. Gilman. Motion Hearing SET for 6/17/2013 at 10:00 AM in Courtroom 4 (LKK) before Judge Lawrence K. Karlton. (Porter, David) Modified on 5/21/2013 (Michel, G). (Entered: 05/20/2013)
487 ORDER signed by Judge Lawrence K. Karlton on 5/23/2013 DENYING WITH PREJUDICE 486 Motion for Reconsideration; VACATING the Motion Hearing as to 486 Motion for Reconsideration set for 6/17/2013. (Michel, G) (Entered: 05/23/2013)

Case: 2:05-cv-830 As of: 11/06/2017 01:21 PM PST 45 of 50

05/28/2013
06/11/2013 06/11/2013 06/11/2013 06/11/2013 06/18/2013 06/18/2013
06/18/2013 06/18/2013 06/18/2013
06/18/2013 06/18/2013
06/18/2013 06/19/2013 06/19/2013 06/20/2013
06/21/2013

488 TRANSCRIPT of Proceedings held on 5−13−13, before Judge Lawrence K. Karlton, filed by Court Reporter Michelle Babbitt, E−mail mbabbitt@caed.uscourts.gov. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through Reporter Babbitt or PACER. Any Notice of Intent to Request Redaction must be filed within 5 court days. Redaction Request due 6/20/2013. Redacted Transcript Deadline set for 6/28/2013. Release of Transcript Restriction set for 8/26/2013. (Babbitt, M) (Entered: 05/28/2013)
489 TRIAL BRIEF by Board of Parole Hearings, Edmund G. Brown, Jr.(Romano, Sara) (Entered: 06/11/2013)
490 PROPOSED FINDINGS of FACT by Board of Parole Hearings, Edmund G. Brown, Jr. (Attachments: # 1 Proof of Service)(Rench, Christopher) Modified on 6/12/2013 (Donati, J). (Entered: 06/11/2013)
491 PROPOSED FINDINGS of FACT by Richard M. Gilman.(Porter, David) (Entered: 06/11/2013)
492 TRIAL BRIEF by Richard M. Gilman.(Porter, David) (Entered: 06/11/2013)
493 STATEMENT designating portions of Depositions & Interrogatories intended to be offered or read by Plaintiff Richard M. Gilman. (Scoble, Matthew) Modified on 6/19/2013 (Michel, G). (Entered: 06/18/2013)
494 NOTICE re Post−Pretrial Discovery of Exhibit pursuant to 473 Pretrial Conference Order by Noreen Blonien, Board of Parole Hearings, Edmund G. Brown, Jr., J. Davis, L. Dininni, M. Hochino, Jones Moore, Booker Welch. (Chan, Maria) Modified on 6/19/2013 (Michel, G). (Entered: 06/18/2013)
495 MOTION to CONTINUE Trial One Day by Richard M. Gilman. (Porter, David) Modified on 6/19/2013 (Michel, G). (Entered: 06/18/2013)
496 APPLICATION to Shorten Time to permit a ruling on 495 Motion to Continue by Richard M. Gilman. (Attachments: # 1 Proposed Order) (Porter, David) Modified on 6/19/2013 (Michel, G). (Entered: 06/18/2013)
497 MINUTE ORDER (TEXT ONLY) by Courtroom Deputy A. Rivas re 495 Motion to Continue. Defendants are instructed to file a response to Plaintiffs' Motion to Continue by 4:30PM today. Matter will then stand SUBMITTED. Ordered by Judge Lawrence K. Karlton on June 18, 2013. (Rivas, A) (Entered: 06/18/2013)
498 PROPOSED ORDER granting 495 Motion to Continue Trial by Richard M. Gilman. (Porter, David) Modified on 6/19/2013 (Michel, G). (Entered: 06/18/2013)
499 OPPOSITION to 495 Motion to Continue Trial by Noreen Blonien, Board of Parole Hearings, Edmund G. Brown, Jr., J. Davis, L. Dininni, M. Hochino, Jones Moore, Booker Welch. (Attachments: # 1 Declaration of Maria G. Chan) (Chan, Maria) Modified on 6/19/2013 (Michel, G). (Entered: 06/18/2013)
500 REPLY to 492 Trial Brief by Board of Parole Hearings, Edmund G. Brown, Jr. (Romano, Sara) Modified on 6/19/2013 (Michel, G). (Entered: 06/18/2013)
501 NOTICE re Relabel and Completion of Defendant's Exhibit Y by Richard M. Gilman. (Porter, David) Modified on 6/20/2013 (Michel, G). (Entered: 06/19/2013)
502 ORDER signed by Judge Lawrence K. Karlton on 6/19/2013 GRANTING 495 Motion to Continue Trial. Trial is CONTINUED TO 6/26/2013 at 09:30 AM in Courtroom 4 (LKK) before Judge Lawrence K. Karlton. (Donati, J) (Entered: 06/19/2013)
503 OBJECTIONS to 501 Notice re Relabel and Completion of Defendant's Exhibit Y by Defendants Noreen Blonien, Board of Parole Hearings, Edmund G. Brown, Jr, J. Davis, L Dininni, M. Hochino, Jones Moore, Booker Welch. (Attachments: # 1 Attachment A) (Chan, Maria) Modified on 6/21/2013 (Michel, G). (Entered: 06/20/2013)
504 MINUTE ORDER (TEXT ONLY) by Courtroom Deputy A. Rivas. The parties are hereby notified that the Bench Trial set for 06/26/2013 is CONTINUED to 6/27/2013 at 09:15 AM in Courtroom 4 (LKK) before Judge Lawrence K. Karlton. Ordered by

Case: 2:05-cv-830 As of: 11/06/2017 01:21 PM PST 46 of 50

06/25/2013 06/27/2013
06/27/2013 06/28/2013 06/28/2013 07/01/2013
07/02/2013 08/05/2013
08/05/2013

Judge Lawrence K. Karlton on June 21, 2013. (Rivas, A) (Entered: 06/21/2013)
505 JOINT STATEMENT Regarding Present Trial Dates and Schedule by Defendants Board of Parole Hearings, Edmund G. Brown, Jr re 504 Minute Order. (Chan, Maria) Modified on 6/27/2013 (Zignago, K.). (Entered: 06/25/2013)
506 MINUTES for proceedings held before Judge Lawrence K. Karlton: BENCH TRIAL − Day 1 held on 6/27/2013. Opening Statments. Witnesses Thomas Masters and Monica Knox. EXHIBITS ADMITTED: Plaintiffs Exhibits 1, 53, 54. EXHIBIT IN EVIDENCE (No objections): Plaintiffs exhibits 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 31, 32, 35, 36, 49, 72, 73, 74, 76. Defendants exhibits A, U, V, W, X, Z, 2A, 2B. Court in recess until 6/28/2013 at 9:30 AM in Courtroom 4 (LKK) before Judge Lawrence K. Karlton. Plaintiffs Counsel Matthew Scoble, David Porter, Carter White present. Defendants Counsel Maria Chan, Christopher Rench present. Court Reporter: D. Shepard. (Rivas, A) (Entered: 06/27/2013)
507 BRIEF regarding plaintiffs' use of summarized testimony pursuant to Rule 1006, Federal Rules of Evidence by Richard M. Gilman. (Porter, David) Modified on 6/28/2013 (Michel, G). (Entered: 06/27/2013)
508 REPLY by Board of Parole Hearings, Edmund G. Brown, Jr re 507 Brief. (Chan, Maria) (Entered: 06/28/2013)
509 MINUTES for proceedings held before Judge Lawrence K. Karlton: BENCH TRIAL − Day 2 held on 6/28/2013. Witnesses: Dr. Barry Krisberg, Dr. Stephen P. Klein, Monica Knox. EXHIBITS ADMITTED: Plaintiffs Exhibits 51, 52, 54, 56, 67, 68, 75, 77. Court in recess until 7/01/2013 at 10:30 AM in Courtroom 4 (LKK) before Judge Lawrence K. Karlton. Plaintiffs Counsel Matthew Scoble, David Porter, Carter White present. Defendants Counsel Maria Chan, Christopher Rench, Sara Romano present. Court Reporter: D. Shepard. (Rivas, A) (Entered: 07/01/2013)
510 MINUTES for proceedings held before Judge Lawrence K. Karlton: BENCH TRIAL − Day 3 held on 7/1/2013. Witnesses: Monica Knox, Jennifer Shaffer. EXHIBITS ADMITTED: Plaintiffs Exhibits 30, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 55, 57, 58, 61, 62, 69, 70, 71, 80. Court in recess until 7/2/2013 at 10:30 AM in Courtroom 4 (LKK) before Judge Lawrence K. Karlton. Plaintiffs Counsel Matthew Scoble, David Porter, Carter White present. Defendants Counsel Maria Chan, Christopher Rench, Sara Romano present. Court Reporter: D. Shepard. (Rivas, A) (Entered: 07/03/2013)
511 MINUTES for proceedings held before Judge Lawrence K. Karlton: BENCH TRIAL − Day 4 completed on 7/2/2013. Witness Jennifer Shaffer. Defendants rested. Plaintiffs rested. The parties stipulated to a briefing schedule re closing briefs: Simultaneous Briefs due 09/30/2013; Replies due 10/21/2013. The matter will then stand SUBMITTED. Plaintiffs Counsel Matthew Scoble, David Porter, Monica Knox, Carter White present. Defendants Counsel Maria Chan, Christopher Rench, Sara Romano present. Court Reporter: D. Shepard. (Rivas, A) (Entered: 07/03/2013)
512 TRANSCRIPT of Proceedings, Bench Trial Volume 1, held on June 27, 2013, before Judge Lawrence K. Karlton, filed by Court Reporter Diane Shepard, Phone number 916−554−7460 E−mail diane.shepard@gmail.com. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction must be filed within 5 court days. Redaction Request due 8/26/2013. Redacted Transcript Deadline set for 9/6/2013. Release of Transcript Restriction set for 11/4/2013. (Shepard, D) (Entered: 08/05/2013)
513 TRANSCRIPT of Proceedings, Bench Trial Volume 2, held on June 28, 2013, before Judge Lawrence K. Karlton, filed by Court Reporter Diane Shepard, Phone number 916−554−7460 E−mail diane.shepard@gmail.com. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction must be filed within 5 court days. Redaction Request due 8/26/2013. Redacted Transcript Deadline set for 9/6/2013. Release of Transcript Restriction set for 11/4/2013. (Shepard, D) (Entered: 08/05/2013)

Case: 2:05-cv-830 As of: 11/06/2017 01:21 PM PST 47 of 50

08/05/2013
08/05/2013
09/30/2013 09/30/2013 09/30/2013 09/30/2013 09/30/2013 09/30/2013 09/30/2013 09/30/2013 09/30/2013 09/30/2013 09/30/2013 09/30/2013

514 TRANSCRIPT of Proceedings, Bench Trial Volume 3, held on July 1, 2013, before Judge Lawrence K. Karlton, filed by Court Reporter Diane Shepard, Phone number 916−554−7460 E−mail diane.shepard@gmail.com. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction must be filed within 5 court days. Redaction Request due 8/26/2013. Redacted Transcript Deadline set for 9/6/2013. Release of Transcript Restriction set for 11/4/2013. (Shepard, D) (Entered: 08/05/2013)
515 TRANSCRIPT of Proceedings, Bench Trial Volume 4, held on July 2, 2013, before Judge Lawrence K. Karlton, filed by Court Reporter Diane Shepard, Phone number 916−554−7460 E−mail diane.shepard@gmail.com. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction must be filed within 5 court days. Redaction Request due 8/26/2013. Redacted Transcript Deadline set for 9/6/2013. Release of Transcript Restriction set for 11/4/2013. (Shepard, D) (Entered: 08/05/2013)
516 CLOSING BRIEF by defendants. (Rench, Christopher) Modified on 10/2/2013 (Marciel, M) (Entered: 09/30/2013)
517 WRITTEN SUMMATION following Trial by Richard M. Gilman. (Attachments: # 1 Tabs 1−5, # 2 Tab 6, # 3 Tab 7) (Knox, Monica) Modified on 10/2/2013 (Marciel, M) (Entered: 09/30/2013)
518 APPENDIX − TAB 8 by Richard M. Gilman in support of 517 Closing Brief filed by Richard M. Gilman. (Attachments: # 1 Tab 8, Part 2, # 2 Tab 8, Part 3) (Knox, Monica) Modified on 10/2/2013 (Marciel, M) (Entered: 09/30/2013)
519 APPENDIX − TAB 9 by Richard M. Gilman for 517 Closing Brief filed by Richard M. Gilman. (Attachments: # 1 Tab 9, Part 2, # 2 Tab 10, # 3 Tab 11, # 4 Tab 12, # 5 Tab 13) (Knox, Monica) Modified on 10/2/2013 (Marciel, M) (Entered: 09/30/2013)
520 APPENDIX − TAB 14 by Richard M. Gilman for 517 Closing Brief filed by Richard M. Gilman. (Attachments: # 1 Tab 14, Part 2, # 2 Tab 15) (Knox, Monica) Modified on 10/2/2013 (Marciel, M) (Entered: 09/30/2013)
521 APPENDIX − TAB 16 by Richard M. Gilman for 517 Closing Brief filed by Richard M. Gilman. (Attachments: # 1 Tab 17, # 2 Tab 18, # 3 Tab 19, # 4 Tab 20) (Knox, Monica) Modified on 10/2/2013 (Marciel, M) (Entered: 09/30/2013)
522 APPENDIX − TAB 21 by Richard M. Gilman for 517 Closing Brief filed by Richard M. Gilman. (Attachments: # 1 Tab 22, # 2 Tab 23, # 3 Tab 24) (Knox, Monica) Modified on 10/2/2013 (Marciel, M) (Entered: 09/30/2013)
523 APPENDIX − TAB 29 by Richard M. Gilman for 517 Closing Brief filed by Richard M. Gilman. (Attachments: # 1 Tab 30, # 2 Tab 31) (Knox, Monica) Modified on 10/2/2013 (Marciel, M) (Entered: 09/30/2013)
524 APPENDIX − TAB 32 by Richard M. Gilman for 517 Closing Brief filed by Richard M. Gilman. (Attachments: # 1 Tab 33, # 2 Tab 34) (Knox, Monica) Modified on 10/2/2013 (Marciel, M) (Entered: 09/30/2013)
525 APPENDIX − TAB 35 by Richard M. Gilman for 517 Closing Brief filed by Richard M. Gilman. (Attachments: # 1 Tab 36, # 2 Tab 37, # 3 Tab 38, # 4 Tab 39, # 5 Tab 40, # 6 Tab 41) (Knox, Monica) Modified on 10/2/2013 (Marciel, M) (Entered: 09/30/2013)
526 APPENDIX − TAB 35 by Richard M. Gilman for 517 Closing Brief filed by Richard M. Gilman. (Attachments: # 1 Tab 43, # 2 Tab 44, # 3 Tab 45, # 4 Tab 46, # 5 Tab 47) (Knox, Monica) Modified on 10/2/2013 (Marciel, M) (Entered: 09/30/2013)
527 APPENDIX − TAB 48 by Richard M. Gilman for 517 Closing Brief filed by Richard M. Gilman. (Attachments: # 1 Tab 49, # 2 Tab 50, # 3 Tab 51) (Knox, Monica) Modified on 10/2/2013 (Marciel, M) (Entered: 09/30/2013)

Case: 2:05-cv-830 As of: 11/06/2017 01:21 PM PST 48 of 50

09/30/2013 10/02/2013 10/21/2013 10/21/2013 02/28/2014
02/28/2014 03/05/2014 03/07/2014 03/11/2014 03/14/2014 03/26/2014
03/27/2014 03/27/2014
03/28/2014

528 APPENDIX − TAB 52 by Richard M. Gilman for 517 Closing Brief filed by Richard M. Gilman. (Attachments: # 1 Tab 53, # 2 Tab 54, # 3 Tab 55, # 4 Tab 56) (Knox, Monica) Modified on 10/2/2013 (Marciel, M) (Entered: 09/30/2013)
529 NOTICE of Corrected Attachment #1, Tabs 1 − 5 by Richard M. Gilman for 517 Closing Brief. (Knox, Monica) Modified on 10/2/2013 (Marciel, M) (Entered: 10/02/2013)
530 REPLY by Noreen Blonien, Board of Parole Hearings, Edmund G. Brown, Jr, J. Davis, L Dininni, Susan Fisher, M. Hochino, Dennis Kenneally, Jones Moore, M. Perez, Arnold Schwarzenegger, Booker Welch re 517 Brief. (Rench, Christopher) (Entered: 10/21/2013)
531 REPLY by Richard M. Gilman re 516 Brief. (Porter, David) (Entered: 10/21/2013)
532 ORDER signed by Judge Lawrence K. Karlton on 2/27/14: Going forward, the Board shall apply Cal. Penal Code § 3041.5, as it existed prior to Proposition 9, to all class members. That is, all class members are entitled to a parole hearing annually, unless the Board finds, under former Section 3041.5(b) that a longer deferral period is warranted. The Governor of California shall refrain from imposing longer sentences on class members than are called for by application of the same factors the Board is required to consider, as provided for by Proposition 89.43 This order is stayed for 31 days, and goes into effect immediately thereafter, unless a timely appeal is filed. (Kaminski, H) (Entered: 02/28/2014)
533 (VACATED per 569 Order) JUDGMENT dated *2/28/2014* pursuant to order signed by Judge Lawrence K. Karlton on 2/27/14. (Kaminski, H) Modified on 5/9/2017 (Kastilahn, A). (Entered: 02/28/2014)
535 RECEIPT For Trial Exhibits from Plaintiffs and Defendants. (Meuleman, A) Modified on 3/10/2014 (Reader, L). (Entered: 03/06/2014)
534 MOTION to ALTER or AMEND to 533 JUDGMENT by Richard M. Gilman. Motion Hearing set for 4/7/2014 at 10:00 AM in Courtroom 4 (LKK) before Judge Lawrence K. Karlton. (Porter, David) Modified on 3/11/2014 (Marciel, M) (Entered: 03/07/2014)
536 ORDER signed by Judge Lawrence K. Karlton on 3/10/2014 DENYING plaintiffs' 534 Motion to Alter or Amend 533 Judgment and the hearing on this Motion, set for 4/7/2014, is VACATED. (Marciel, M) (Entered: 03/11/2014)
537 [ *** STRICKEN PER 539 ORDER *** ] MOTION for Court order enforcing granting of parole by Ivan Von Staich. (Attachments: # 1 Letter and Exhibits, # 2 Proposed Order) (Zignago, K.) Modified on 3/26/2014 (Zignago, K.). (Entered: 03/18/2014)
539 ORDER signed by Judge Lawrence K. Karlton on 3/25/2014 ORDERING that the Clerk of the Court shall STRIKE 537 Motion and shall not file in this action any further documents submitted by an inmate proceeding pro se. All documents bearing the above−captioned case name and/or number which are submitted to the Clerk of the Court by an inmate proceeding pro se shall be returned to the inmate with a copy of this order. (Zignago, K.) (Entered: 03/26/2014)
540 NOTICE of APPEAL by Noreen Blonien, Board of Parole Hearings, Edmund G. Brown, Jr, J. Davis, L Dininni, Susan Fisher, M. Hochino, Dennis Kenneally, Jones Moore, M. Perez, Arnold Schwarzenegger, Booker Welch. (Attachments: # 1 Exhibit − Attachment 1)(Rench, Christopher) (Entered: 03/27/2014)
RECEIPT number #CAE200059019 $505.00 fbo Noreen Blonien, Board of Parole Hearings, Edmund G. Brown, Jr, J. Davis, L Dininni, Susan Fisher, M. Hochino, Dennis Kenneally, Jones Moore, M. Perez, Arnold Schwarzenegger, Booker Welch by State of California on 3/27/2014 RE: Notice of Appeal 540 . (Mena−Sanchez, L) (Entered: 03/27/2014)
541 APPEAL PROCESSED to Ninth Circuit re 540 Notice of Appeal, filed by Jones Moore, Edmund G. Brown, Jr., Arnold Schwarzenegger, J. Davis, M. Hochino, Booker Welch, Susan Fisher, Board of Parole Hearings, L Dininni, M. Perez, Dennis Kenneally, Noreen Blonien. Notice of Appeal filed *3/27/2014*, Complaint filed *4/27/2005* and Appealed Order / Judgment filed *2/28/2014*. Court Reporter: *D.

Case: 2:05-cv-830 As of: 11/06/2017 01:21 PM PST 49 of 50

03/28/2014 04/04/2014 04/08/2014 04/09/2014
04/21/2014 04/21/2014 04/22/2014 04/22/2014 04/28/2014 04/30/2014 05/05/2014 05/12/2014 05/13/2014 07/23/2014
07/28/2014
07/29/2014

Shepard*. *Fee Status: Paid on 3/27/2014 in the amount of $505.00* (Attachments: # 1 Appeal Information) (Kastilahn, A) (Entered: 03/28/2014)
542 MOTION for ATTORNEY FEES by Richard M. Gilman. Motion Hearing set for 5/5/2014 at 10:00 AM in Courtroom 4 (LKK) before Judge Lawrence K. Karlton. (Attachments: # 1 Exhibit)(White, Carter) (Entered: 03/28/2014)
543 TRANSCRIPT REQUEST by Noreen Blonien, Board of Parole Hearings, Edmund G. Brown, Jr, J. Davis, L Dininni, Susan Fisher, M. Hochino, Dennis Kenneally, Jones Moore, M. Perez, Arnold Schwarzenegger, Booker Welch (Rench, Christopher) (Entered: 04/04/2014)
544 NOTICE of APPEAL by Richard M. Gilman. (Knox, Monica) (Entered: 04/08/2014)
545 APPEAL PROCESSED to Ninth Circuit re 544 Notice of Appeal filed by Richard M. Gilman. Notice of Appeal filed *4/8/2014*, Complaint filed *4/27/2005* and Appealed Order / Judgment filed *5/17/2013*. Court Reporter: *D. Shepard*. *Fee Status: IFP Granted on 6/2/2008* (Attachments: # 1 Appeal Information) (Zignago, K.) (Entered: 04/09/2014)
546 OPPOSITION by defendants to plaintiffs' 542 Motion for Attorney Fees. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5) (Romano, Sara) Modified on 4/22/2014 (Marciel, M) (Entered: 04/21/2014)
547 MOTION to ENFORCE JUDGMENT by Richard M. Gilman. Motion Hearing set for 5/19/2014 at 10:00 AM before Judge Lawrence K. Karlton. (Porter, David) (Entered: 04/21/2014)
548 USCA CASE NUMBER 14−15613 for 540 Notice of Appeal, filed by Jones Moore, Edmund G. Brown, Jr., Arnold Schwarzenegger, J. Davis, M. Hochino, Booker Welch, Susan Fisher, Board of Parole Hearings, L Dininni, M. Perez, Dennis Kenneally, Noreen Blonien. (Zignago, K.) (Entered: 04/22/2014)
549 USCA CASE NUMBER 14−15680 for 544 Notice of Appeal filed by Richard M. Gilman. (Zignago, K.) (Entered: 04/22/2014)
550 REPLY by Richard M. Gilman to RESPONSE to 542 Motion for Attorney Fees. (Attachments: # 1 Declaration of Ernest Galvan with exhibits)(White, Carter) (Entered: 04/28/2014)
551 ORDER signed by Judge Lawrence K. Karlton on 4/29/2014 VACATING the 5/5/2014 542 Motion for Attorney Fees hearing and taking the matter under submission. (Donati, J) (Entered: 04/30/2014)
552 DEFENDANTS' OPPOSITION to 547 Motion to Enforce Judgment. (Rench, Christopher) Modified on 5/8/2014 (Becknal, R). (Entered: 05/05/2014)
553 REPLY by Richard M. Gilman re 552 Opposition to Motion. (Knox, Monica) (Entered: 05/12/2014)
554 ORDER signed by Judge Lawrence K. Karlton on 5/12/14 ORDERING that the 547 Motion to Enforce Judgment is taken under submission and the 5/19/14 hearing is VACATED. (Manzer, C) (Entered: 05/13/2014)
555 ORDER signed by Judge Lawrence K. Karlton on 7/22/2014 GRANTING 547 Plaintiffs' Motion to Enforce Judgment; and that portion of the court's order and judgment 532 , 533 , that issued a stay pending appeal is herebyVACATED, effective 21 days from the date of this order, so that a stay may be sought from the Ninth Circuit. (Reader, L) (Entered: 07/23/2014)
556 ORDER signed by Judge Lawrence K. Karlton on 7/25/2014 GRANTING IN PART the 542 Motion for Attorney Fees; ORDERING the defendants to pay the plaintiffs' counsel such fees in the total amount of $34,201.56; DENYING the defendants' Request for Stay of Payment without prejudice to its renewal under F.R.Cv.P. Rule 61(d), or pursuant to a motion otherwise explaining their entitlement to a stay. (Michel, G) (Entered: 07/28/2014)
557 REQUEST for Order Shortening Time to Hear Motion for Reconsideration; Declaration of Maria G. Chan by Noreen Blonien, Board of Parole Hearings, Edmund

Case: 2:05-cv-830 As of: 11/06/2017 01:21 PM PST 50 of 50

07/29/2014 07/30/2014 08/05/2014 02/22/2016 02/22/2016 03/01/2016 06/02/2016
06/07/2016 08/18/2016 09/20/2016
09/22/2016
05/09/2017 05/09/2017

G. Brown, Jr, J. Davis, L Dininni, M. Hochino, Jones Moore, Booker Welch. (Attachments: # 1 Proposed Order)(Chan, Maria) (Entered: 07/29/2014)
558 Defendants' MOTION for RECONSIDERATION re 557 Request. Motion Hearing set for 8/4/2014 at 10:00 AM in Courtroom 4 (LKK) before Judge Lawrence K. Karlton. (Chan, Maria) Modified on 7/31/2014 (Mena−Sanchez, L). (Entered: 07/29/2014)
559 RESPONSE by Richard M. Gilman to 558 MOTION for RECONSIDERATION re 557 Request, and Clarification. (Knox, Monica) (Entered: 07/30/2014)
560 ORDER signed by Judge Lawrence K. Karlton on 8/5/2014 ORDERING 557 defendants application for an Order ShorteningTime is DENIED; and defendants' 558 Motion for Reconsideration is DENIED. (Waggoner, D) (Entered: 08/05/2014)
561 ORDER REASSIGNING CASE signed by Chief Judge Morrison C. England, Jr.: Due to the retirement of District Judge *Lawrence K. Karlton* from the bench of the Eastern District of California, this action is reassigned to *Chief Judge Morrison C. England, Jr* for all further proceedings. (Donati, J) (Entered: 02/22/2016)
562 USCA OPINION as to 540 & 544 Notices of Appeal. The decision of the District Court is REVERSED and REMANDED with instructions. CASE REOPENED. (Donati, J) (Entered: 02/22/2016)
563 NOTICE of APPEARANCE by Ann Catherine McClintock on behalf of Richard M. Gilman. Attorney McClintock, Ann Catherine added. (McClintock, Ann) (Entered: 03/01/2016)
564 USCA MANDATE as to 544 Notice of Appeal filed by Richard M. Gilman, 540 Notice of Appeal, filed by Jones Moore, Edmund G. Brown, Jr., Arnold Schwarzenegger, J. Davis, M. Hochino, Booker Welch, Susan Fisher, Board of Parole Hearings, L Dininni, M. Perez, Dennis Kenneally, Noreen Blonien. The decision of the District Court is Reversed and Remanded. (Washington, S) Modified on 6/3/2016 (Washington, S). (Entered: 06/03/2016)
565 NOTICE of Plaintiffs' Intent to File Petition for Certiorari by Richard M. Gilman. (McClintock, Ann) (Entered: 06/07/2016)
566 MOTION Suggestion of Death; Mtn to Substitute Paul Madden as Named Representative Plaintiff by Richard M. Gilman. Motion Hearing set for 9/22/2016 at 02:00 PM in Courtroom 7 (MCE) before District Judge Morrison C. England Jr.. (Attachments: # 1 Proposed Order)(McClintock, Ann) (Entered: 08/18/2016)
567 MINUTE ORDER (Text Only) issued by courtroom deputy for District Judge, Morrison C. England, Jr.: On the Court's own motion and pursuant to Local Rule 230(g), the Plaintiffs' Motion of Suggestion of Death (ECF No. 566), scheduled for hearing on September 22, 2016, is submitted without oral argument and the hearing is vacated. If the Court determines that oral argument is needed it will be scheduled at a later date. Any outstanding request for telephonic appearance is denied as moot. (Deutsch, S) (Entered: 09/20/2016)
568 ORDER signed by District Judge Morrison C. England, Jr on 9/21/16 ORDERING that the Court finds that the rights of the class members survive Mr. Gilman's death, this action does not abate, but proceeds in favor of the remaining plaintiff class members. Therefore, Plaintiffs' request that class member PAUL MADDEN be substituted as Plaintiffs' named plaintiff representative is GRANTED. The Clerk is directed to change the caption of this action to Paul Madden, et al. v. Edmund G. Brown, et al., (Becknal, R) (Entered: 09/22/2016)
569 ORDER signed by District Judge Morrison C. England, Jr., on 5/9/17 ORDERING that the judgment entered on 2/28/2014, is VACATED, and the Clerk is directed to enter judgment for the State of California. CASE CLOSED (Kastilahn, A) (Entered: 05/09/2017)
570 JUDGMENT dated *5/9/17* entered pursuant to order signed by District Judge Morrison C. England, Jr., on 5/9/17. (Kastilahn, A) (Entered: 05/09/2017)

 
 ·.

•• • Case 2:05-cv-00830-LKK-CKD Document 1 Filed 04/27/05 Page 1 of 6

FILED

APR 2 7 2005 OtER'<. u s t:!l$TI'IICTCOIJRT
EASTHI'" DISfR,CT OF CAllFOANIA
., ----:;mIi'S:)C, !'<:*n'G1: !Cr---IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALlFORr-.'IA

RIOWID M. GII.MAN C-47S0B (Name ofPlaintifi)
P.o. BOX 2500 Y-103L (Address of Plaintiff)
Vacaville, CA. 95696-2500

VB CV - goO LlC-K. CiG.H P
(Case Number)

vs. M. PEREZ, as BPT Camliss:ioner &

COMPLAThI'T

Califomia Governor; and OOE's 11 - 100 (Names ofDefendants)

1. Previous Lawsuits:

A. Have you brought any other lawsuits while a prisoner: !XI Yes

o No

B. If your answer to A is yes, how many?:

2

Describe the lawsuit in the space

below. (If there is more than one lawsuit, describe the additional lawsuits oil another piece of paper

using the same outline.)

1. Parties to this previous lawsuit: Plaintiff _ _ _ _ _RI_O_IIIR_D_M_._G_ _nM_l\N_ _ _ _ _ _ _ _ _ _ _ _ __

Defendants _ _ _..:.J..:.._'NXlDl?CiID:..~:....:.:.:...,:.......;D.::irecto=~.::r_ax:::.:...:.......;et_=_al:.......;._ _ _ _ _ _ __

FQR,lI.l TO BE USED BY A PRISONER IN FILING A COMPLAINT UNDER THE CIVIL RiGHTS ACT. 42 U.S.C. § 198:!,
3

Rev'd 5/99

• • Case 2:05-cv-00830-LKK-CKD Document 1 Filed 04/27/05 Page 2 of 6

2. Court (if Federal Court, give name of District; if State Court, give name of County)

U.S.D.C. F-astern Diat;ri c;t;
3. Docket Number CIV 5-05-0337 EO) - G::B 4. Name ofjudge to whom case was assigned Hnn. FlU\NK C. JWlR&,I.. •Ir. 5. Disposition (For example: Was the ease dismissed? Was it appealed? Is it still pending?)
S'l'II.L PJ!H)IOO

6. Approximate date of filing lawsuit _.:.F~ebl:uary=:~"-I...:!2,",2:L,~200~5~_ _ _ _ _ _ _ __ 7. Approximate date of disposition _-'§I'ifi""""-"1'-'oI.5_ _ _ _ _ _ _ _ _ _ _ _ _ __

II. Exhaustion ofAdministrative Remedies

A. Is there a grievance procedure available at your institution? DYes

Cil No

B. Have you filed a grievance concerning the facts relating to this complaint?

DYes

[l!I No

If your answer is no, explain why not As of 5/1/04 the Boanl of Priaon Tepns

car. cooe .repealed its aiiDinistJ:ative grievance pDXlE.drres, formerly oodified at

Title 15,

RfijS., § 2050 et seq.

C. Is the grievance process completed?

Cil Yes

o No

m. Defendants

(In Item A below, place the full name of the defendant in the first blank, hislher official position in the second blank, and hislher place of employment in the third blank. Use item B for the names, positions and places of employment of any additional defendants.)

A. Defendant MARG1\RITA PmJi2 of the Boanl of Prisal Tem1s

is employed as CamtissialeJ: ,. Chair at1515 K St. 1600, Sacraamento, CA. 95814

B, Additional defendants ARKllD ~, GoveI::nor of the State of cali£om:ia, Office of the GoveI::nor, State 9:q>itol, saCLdllento,CA. 95814; J. DOE's 11 !l8,
Boanl of Prison Tenns Carmissioners; and J. DOE's jl9-Il00,. Boanl of Prison Tem1s
Deputy camri.ssialeJ:s; all J. Does E!!ployed at 1515 K St•• 11600. Sacnvrentg, CA. 95814

-2-

,-

Case 2:05-cv-0•0830-LKK-CKDADDrorcIu<mHUen. tI1MHFIilIeTd •04/27/05 Page 3 of 6

1• Parties to this previous lawsuit:

Plaintiff Defendants

RIaJARD M. GIIMl\N
J. VUDH:JID. Director ax:: et al.

2. Court

U.S.D.C. EasteJ:n District

3. Docket: Nunber crv-S-04-0035DFL K.JM

4. Name of Judge to loob:m case was assigned

lIon. Il!I.VID F. IEVI

5. Disposition

STIIL PmDIK;

6. Awn»dmate date of filing lawsuit

January 7. 2004. aIIEnded DecaIiler 21. 2004

-3-

"

• • Case 2:05-cv-00830-LKK-CKD Document 1 Filed 04/27/05 Page 4 of 6

IV. Statement of Claim
(State here. as briefly as possible the facts of your case. Describe how each defendant is involved, including dates and places, Do not give any legal arguments or cite any cases or statutes. Attach extra sheets if necessary.)

V. Relief.
(State briefly exactly what you want the court to do for you. Make no legal arguments. Cite no cases or statutes.)
Injunctive relief per WIIlQlfll!I y. !J7!'SON 2005 OJAR 2669 'decided Mard! 7. 2005): Enjoin defendants fnDl'lcont:irnJed reliance in the future on U!!.d!anqirxr factor, the c.ira.mlstanc:e of the offense and =nduct prior to ~IL~per BIaE v. TI'mIIlNE 334 F. 3d 910, 917 (9th Cir. 2003).

~ .~ Signed this

day of

(Signature of Piaintift)

I declare under penalty of petjury that the foregoing is true and correct.

k;,e 1$ .1.R,/

~t ~.,,)

> (Date) I

~ature of Plaintiff)

..
. .

• • Case 2:05-cv-00830-LKK-CKD Document 1 Filed 04/27/05 Page 5 of 6

IV. Statement of Claim:

Defendants' continued reliance on unchanging factors, such as the circumstances of plaintiff's offense and conduct prior to his imprisonment, is arbitrary, runs contrary to the rehabilitative goals espoused by the prison system, and violates plaintiff's Due Process guarantees under the Fourteenth Amendment to the United States Constitution. See Biggs v. Terhune, 334 F.3d 910, 916-17 (9th Cir. 2003); Greenholtz v. Nebraska, 442 U.S. 1. 13 (1979) ("It is important ... not [to] overlook the ultimate purpose of parole which is a component of the long-range objective of rehabilitation.") and id. at 16 (due process requires that when parole is denied, the inmate be informed "in what respects he falls short of qualifying for parole"); Wolff v. McDonnell, 418 U.S. 539, 558 (1974) ("The touchstone of due process is protection of the individual against arbitrary action of government"); Greenholtz, supra, 442 U.S. at 12-13 (extending Wolff's protection against arbitrary government action to parole-determination process) and id. at 13 ("The function of legal process, as that concept is embodied in the Constitution, and in the realm of factfinding, is to minimize the risk of erroneous decisions.").

1. On or about April 1982, plaintiff was convicted of first degree murder in Los Angeles County for an offense which occurred on or about August 14. 1980.
2. On or about May 11, 1982, plaintiff was sentenced to a term of 25 years to life in state prison.
3. At the time of sentencing, plaintiff had spent 525 days in custody in county jail; he received credit for a total of 787 days (including behavior credits vested under Penal Code, § 4019).
4. Plaintiff was received by the California Department of Corrections ("CDC") on or about May 18, 1982.
5. Plaintiff has no prior criminal history.
6. Plaintiff has been eligible for parole since July 22, 1995.
7. Plaintiff had parole consideration hearings before Commissioners and Deputy Commissioners of the Board of Prison Terms ("Board" or "BPT") in 1994, 1995, 1997, 1999, 2002, 2003, and most recently March 2005. He has never been found suitable for release on parole.
8. Defendant Perez was appointed by defendant Schwarzenegger to be the Chair of the Board. As Chair, defendant Perez is the administrative head of the Board and exercises all duties and functions necessary to ensure that the responsibilities of the Board are successfully discharged. She is also the designated appointing authority for deputy commissioners employed by the Board.
9. Plaintiff has demonstrated evidence of rehabilitation. He has continued to demonstrate exemplary behavior throughout his incarceration, never having been found guilty of any prison rule violation.
10. The base term for plaintiff's offense is no more than 29-31 years (i.e., 348-372 months), pursuant to the matrix in Title 15, Cal.Code Regs. ("15 CCR") § 2403, subd. (b), category II-D, reducible by postconviction credit pursuant to 15 CCR § 2290.
-5-

.'
. .

• • Case 2:05-cv-00830-LKK-CKD Document 1 Filed 04/27/05 Page 6 of 6

11. Article 11 (consisting of Sections 2400-2411) of Chapter 3 of Division 2 of Title 15 of the California Code of Regulations, which currently lists criteria and guidelines for murders committed on or after November 8, 1978, was not adopted as a regulatory measure until a month or two after plaintiff committed his offense. While the matrix of base terms applicable to plaintiff's offense is arguably located within that Article (at 15 CCR § 2403, subd. (b», the parole consideration criteria and guidelines applicable to his offense are located instead in Article 5 (listing parole consideration criteria and guidelines for life prisoners generally, regardless of the date of the commitment offense), commencing with 15 CCR § 2280 of the Board's regulations.

12. The standard amount of postconviction credit awarded by the BPT to each prisoner found suitable for release on parole is four months for each year of disciplinary-free imprisonment since the prisoner began serving his "life" sentence.

13. Taking into account presentence credit, as well as a nominal amount of postconviction credit (four months for each year of disciplinary-free imprisonment since plaintiff began serving his "life" sentence), plaintiff will have served approximately 403 months by the time of his next parole consideration hearing, currently scheduled for March 2006.

14. In California, "the law itself is neutral inasmuch as it gives the governor power to either affirm or reverse a BPT's granting or denial of parole. Moreover, the governor must use the same criteria as the BPT. The law, therefore, simply removes final parole decisionmaking authority from the BPT and places it in the hands of the governor." Johnson v. Gomez, 92 F.3d 964, 967 (9th Cir. 1996).

15. The Governor has never reversed a decision of the Board proposing to find plaintiff unsuitable for parole.

16. In denying plaintiff parole, the Board and Governor continue to rely on the unchanging circumstances of plaintiff's offense and prior conduct.

17. Plaintiff is here Challenging only the procedures used at his parole consideration hearings. He seeks injunctive relief concerning the procedures to be used at future parole consideration hearings.

18. The Board's regulations (and case law) permit consideration of factors other than the commitment offense and conduct prior to imprisonment in determining whether or not an applicant is suitable for release on parole. See 15 CCR § 2281, subds. (b) and (c). Accordingly, while plaintiff admittedly hopes this action will help bring about his earlier release, success here will not necessarily spell immediate or earlier release for him.

19. The defendants are here being sued in their official capacities only.

-6-

 
 Case 2:05-cv-00830-LKK-CKD Document 434 Filed 08/21/12 Page 1 of 9

1 CARTER C. WHITE, CSB # 164149 U.C. Davis Civil Rights Clinic
2 One Shields Avenue, Building TB-30 Davis, CA 95616-8821
3 Telephone: (530) 752-5440 Facsimile: (530) 752-5788
4 ccwhite@ucdavis.edu

5 DANIEL J. BRODERICK, CSB #89424 Federal Defender
6 MONICA KNOX, CSB #84555 DAVID M. PORTER, CSB #127024
7 Assistant Federal Defenders 801 I Street, 3rd Floor
8 Sacramento, CA 95814 Telephone: (916) 498-5700
9 monica_knox@fd.org david_porter@fd.org
10

11 Attorneys for Plaintiffs RICHARD M. GILMAN, et al.
12

13

IN THE UNITED STATES DISTRICT COURT

14

FOR THE EASTERN DISTRICT OF CALIFORNIA

15

16 RICHARD M. GILMAN, and CHRIS ) No. Civ. S 05-830 LKK GGH

FOWLER, on their own behalf and on )

17 behalf of those similarly situated,

)

) FIFTH AMENDED/SUPPLEMENTAL

18

Plaintiffs,

) COMPLAINT FOR DECLARATORY

) AND INJUNCTIVE RELIEF – CLASS

19

v.

) ACTION

)

20 EDMUND G. BROWN, Jr., Governor )

of California, in his official capacity; )

21 ROBERT DOYLE, Chairman, Board )

of Parole Hearings, in his official

)

22 capacity; All Commissioners of the )

Board of Parole Hearings, in their

)

23 official capacity; All Deputy

)

Commissioners of the Board of Parole )

24 Hearings Who Hear Lifer Cases, in )

their official capacity,

)

25

)

Defendants.

)

26 _______________________________

27

I. INTRODUCTION

28 1. Plaintiffs Richard M. Gilman and Chris Fowler respectfully submit this Fifth

Case 2:05-cv-00830-LKK-CKD Document 434 Filed 08/21/12 Page 2 of 9

1 Amended/Supplemental Complaint for Declaratory and Injunctive Relief.

2 2. Plaintiffs are California state prisoners convicted of murder and sentenced to prison

3 terms that include the possibility of parole. They are eligible for parole, and have been

4 denied parole on one or more occasion; Plaintiff Fowler was previously granted parole but

5 had the grant reversed by the Governor.

6

II. JURISDICTION AND VENUE

7 3. Plaintiffs bring this action to redress the deprivation of rights secured to them by the

8 Ex Post Facto Clause of the United States Constitution.

9 4. This Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 1331 and 1343,

10 and 42 U.S.C. § 1983.

11 5. Venue is proper is this judicial district under 28 U.S.C. § 1391 because the

12 defendants are employed in the County of Sacramento, which is in this judicial district.

13

III. THE PARTIES

14 A. Plaintiffs

15 6. Plaintiffs Richard M. Gilman and Chris Fowler are California state prisoners with

16 convictions for murder and sentences that include the possibility of parole.

17 B. Defendants

18 7. Defendant Edmund G. Brown, Jr. is the Governor of the State of

19 California. He is authorized to affirm, modify, or reverse any decision by the Board

20 granting or denying parole to a prisoner convicted of murder. He is sued in his official

21 capacity only.

22 8. Defendant Robert Doyle is Chairman of the Board of Parole Hearings. He is

23 sued in his official capacity only.

24 9. The remaining defendants are all the Commissioners of the Board of Parole

25 Hearings, and all Deputy Commissioners of the Board of Parole Hearings who conduct

26 parole consideration hearings for life inmates.

27

IV. FACTS APPLICABLE TO ALL CAUSES OF ACTION

28 10. All California prisoners with life sentences for murder are eligible for parole after

2

Case 2:05-cv-00830-LKK-CKD Document 434 Filed 08/21/12 Page 3 of 9

1 serving a minimum number of years, although that minimum number of years varies from

2 seven to twenty-five. Once a life prisoner is eligible for parole, it is up to the Board of

3 Parole Hearings in the first instance and the Governor in the second instance to determine

4 if he is “suitable” for parole. The first hearing to determine suitability occurs a year before

5 eligibility. Cal. Pen. Code § 3041(a). The statute provides that the Board “shall normally

6 set a parole release date” at that first hearing. Id.

7 11. The standard for setting parole release dates is set forth in subsection (b) of section

8 3041 of the California Penal Code:

9

The panel or board shall set a release date unless it determines that the gravity

of the current convicted offense or offenses, or the timing and gravity of

10

current or past convicted offense or offenses, is such that consideration of the

public safety requires a more lengthy period of incarceration for this

11

individual, and that a parole date, therefore, cannot be fixed at this meeting.

12 12. Thus, state law mandates that the prisoner is suitable for parole and must have a

13 release date set unless the evidence shows that his release would be a risk to public safety:

14 that is, he is a current risk to the community. In re Lawrence, 44 Cal.4th 1181 (2008).

15 13. California life prisoners have the right to be free of any law, regulation, practice or

16 policy that increases punishment from what it was at the time of the commission of their

17 offenses.

18 14. The grant of parole to a California life prisoner is governed by statute and

19 regulation. As noted, the statute creates a presumption of suitability once a prisoner

20 reaches his minimum eligibility date; and it allows for the denial of parole only if release

21 of the prisoner jeopardizes public safety. The Board has established regulatory criteria for

22 guiding its determination of current risk. 15 C.C.R. §§ 2280 et seq., & 2400 et seq. The

23 factors set forth in the regulations, however, are for guidance only; the actual decision of

24 whether the prisoner is suitable for parole must be premised on the sole statutory criterion:

25 whether he is a current risk to public safety. The Governor is bound by the same

26 guidelines and same statutory determination as is the Board.

27 15. Defendants’ policies, practices, conduct, and acts alleged herein have resulted and

28 will continue to result in irreparable injury to Plaintiffs and Plaintiff Class, including but

3

Case 2:05-cv-00830-LKK-CKD Document 434 Filed 08/21/12 Page 4 of 9

1 not limited to violations of their constitutional rights. Plaintiffs and Plaintiff Class have

2 no plain, adequate or complete remedy at law to address the wrongs described herein.

3 16. An actual controversy exists between Plaintiffs and Defendants in that Plaintiffs

4 contend that the policies, practices, and conduct of Defendants alleged herein are unlawful

5 and unconstitutional, whereas Plaintiffs are informed and believe that Defendants contend

6 that said policies, practices, and conduct are lawful and constitutional. Plaintiffs seek a

7 declaration of rights with respect to this controversy.

8

V. CLASS ALLEGATIONS

9 17. Plaintiffs bring this action on behalf of themselves and all other persons similarly

10 situated pursuant to Federal Rules of Civil Procedure 23(a) and 23(b)(2). The class as it

11 has been certified as to the First Cause of Action consists of all California state prisoners

12 who have been sentenced to a life term with possibility of parole for an offense that

13 occurred before November 4, 2008. The class as it has been certified as to the Second

14 Cause of Action consists of all California state prisoners who have been sentenced to a life

15 term with possibility of parole for an offense that occurred before November 8, 1988. The

16 requirements of Federal Rules of Civil Procedure 23(a) and 23(b)(2) are met because the

17 class is so numerous that joinder of all members is impracticable.

18 18. There are questions of law and fact common to the proposed class that predominate

19 over questions affecting only the individually named Plaintiffs.

20 19. The claims of the named Plaintiffs are typical of the claims of the proposed class.

21 20. The named Plaintiffs will fairly and adequately represent the interests of all

22 members of the proposed class because they seek relief on behalf of the class as a whole

23 and have no interests antagonistic to other members of the class. The named Plaintiffs are

24 represented by counsel from the U.C. Davis Civil Rights Clinic and the Office of the

25 Federal Defender for the Eastern District of California. Counsel for Plaintiffs have

26 extensive experience in civil rights, prisoner rights, and class action litigation. Finally, the

27 Defendants have acted on grounds generally applicable to the class, thereby making

28 appropriate preliminary and final injunctive relief with respect to the class as a whole.

4

Case 2:05-cv-00830-LKK-CKD Document 434 Filed 08/21/12 Page 5 of 9
1 The Named Plaintiffs 2 Mr. Richard M. Gilman 3 21. Plaintiff RICHARD M. GILMAN (CDC # C-47508) was convicted of first degree 4 murder in 1982, and sentenced to 25 years to life. His victim, his former fiancée, died 5 after being assaulted by persons hired by Mr. Gilman. 6 22. Mr. Gilman became eligible for parole in 1995. He has had numerous subsequent 7 parole consideration hearings at which parole was denied. The Board relied primarily on 8 the circumstances of the commitment offense and what it perceived to be Mr. Gilman’s 9 limited programming and lack of insight and remorse to deny parole. 10 23. Mr. Gilman’s psychological reports evaluate him as a low or relatively low risk to 11 others if granted parole. 12 24. Mr. Gilman has received favorable evaluations of his work in prison and has 13 engaged in numerous rehabilitation efforts, including participation in various self-help and 14 therapy programs. He has never been violent while incarcerated, nor has he ever incurred 15 a CDC 115 (Rule Violation Report). 16 Mr. Chris Fowler 17 25. Plaintiff CHRIS FOWLER (CDC # C-96996) was convicted of second degree 18 murder in 1984, and sentenced to 15 years to life. He struck and killed his then19 girlfriend’s son. 20 26. He became eligible for parole in 1993. He has been denied parole at numerous 21 hearings. In 2007, the parole consideration hearing resulted in a tie vote. The 22 commissioner who voted to deny parole did so due to the commitment offense and what he 23 perceived to be Mr. Fowler’s lack of insight and an insufficient relapse plan. In 2009, the 24 Board sitting en banc denied parole. In 2010, Mr. Fowler was granted parole by the 25 Board, but the Governor reversed the grant in 2011. 26 27. Mr. Fowler’s psychological reports consistently state that he presents a low or very 27 low risk to re-offend. 28 28. Mr. Fowler has a significant record of rehabilitation, including an exemplary prison
5

Case 2:05-cv-00830-LKK-CKD Document 434 Filed 08/21/12 Page 6 of 9

1 work record and participation in and completion of numerous self-help and substance

2 abuse programs.

3

VI. CAUSES OF ACTION

4

FIRST CAUSE OF ACTION

5 29. Plaintiffs reallege and incorporate by reference paragraphs 1 through 28 of this

6 complaint as though fully set forth herein.

7 30. Pursuant to laws in effect when Plaintiff Gilman committed his offense, the law

8 provided for only annual reconsideration hearings absent convictions for multiple

9 murders.1

10 31. Subsequent amendments extended the permissible period of parole deferral, first to

11 two years (by amendment in 1982), and then to five years (by amendment in 1994).

12 32. The Board could order a deferral for more than one year only if it found that it was

13 not reasonable to expect that parole would be granted at a hearing during the intervening

14 period, and it was required to state in writing the bases for such a finding.

15 33. If a Board deferred parole for five years, the prisoner’s central file would be

16 automatically reviewed within three years by a deputy commissioner who could direct that

17 a hearing be held within one year.

18 34. On November 4, 2008, the California electorate passed the Victims’ Bill of Rights

19 Act of 2008, also known as Marsy’s Law, through a ballot initiative designated

20 Proposition 9. Section 5.1 of the proposition amends Section 3041.5 of the California

21 Penal Code in ways that, when applied retroactively, create a significant risk of increasing

22 the measure of punishment attached to the original crime. Specifically, the proposition:

23

(a) Changes the default deferral period between parole hearings from one year to

15 years;

24

(b) Raises the minimum possible deferral period between parole hearings from

25

one year to three years, eliminating all Board discretion to set the deferral

period at one or two years;

26

27 1 At the time Plaintiff Fowler committed his offense, the presumption was for annual
28 hearings but for cause and upon specific findings could be extended to two years before reconsideration.

6

Case 2:05-cv-00830-LKK-CKD Document 434 Filed 08/21/12 Page 7 of 9

1

(c) Increases the possible deferral periods from one, two, three or five years, to

three, five, seven, ten or 15 years;

2

(d) Changes the standard for and alters the Board's ability to set the deferral

3

period from a presumption of minimum deferral period (one year) unless the

Board finds “it is not reasonable to expect that parole would be granted at” an

4

earlier hearing to a presumption of maximum deferral period (15 years),

unless the Board finds by clear and convincing evidence “that consideration

5

of the public’s and victim’s safety does not require a more lengthy period of

incarceration for the prisoner” than the next shortest deferral period possible;

6

and,

7

(e) Changes the process and possibility of an earlier review following imposition

of a lengthy deferral period from an automatic review if a five-year deferral

8

period has been imposed to a review available only if the prisoner makes a

request (which he may do only once every three years) and establishes

9

changed circumstances or new information.

10 35. Proposition 9 violates the Ex Post Facto Clause of the United States

11 Constitution, and denies Plaintiffs and Plaintiff Class due process of law.

12

SECOND CAUSE OF ACTION

13 36. Plaintiffs reallege and incorporate by reference paragraphs 1 through 28 of this

14 complaint as though fully set forth herein.

15 37. Prior to November 1988, Board decisions granting parole of prisoners convicted of

16 murder were final and not reviewable by the Governor. At that time, the Board found

17 approximately ten percent of life prisoners suitable for parole at their initial suitability

18 hearings and approximately fifteen percent of life prisoners suitable for parole at

19 subsequent hearings. Once found suitable for parole, those prisoners were released on

20 reaching their parole dates without their dates being subject to reversal by the Governor.

21 38. In 1988, the California electorate passed Proposition 89, which added Section 8(b)

22 to Article V of the California Constitution. This constitutional provision authorizes the

23 Governor to affirm, modify, or reverse the Board’s parole decisions with respect to

24 prisoners convicted of murder based on the same criteria the Board considers. The stated

25 purpose of Proposition 89 was to grant to the Governor, for the first time, the power to

26 “block” the parole of convicted murders.

27 39. Since the passage of Proposition 89, Section 8(b) of Article V has never been used

28 by any governor to reverse a decision by the Board finding a prisoner unsuitable for

7

Case 2:05-cv-00830-LKK-CKD Document 434 Filed 08/21/12 Page 8 of 9

1 parole, but has been used by all governors exclusively to reverse decisions by the Board

2 finding prisoners suitable for parole.

3 40. Plaintiff Fowler has been found suitable for parole by the Board on at least one

4 occasion. The Board set a term for him; at the point he was granted parole, he had

5 exceeded the term set. Had his grant not been subjected to Article V, Section 8(b) and the

6 Governor’s review, he would have been released immediately upon the finality of the

7 Board’s decision. Accordingly, the application of Article V, Section 8(b) to him has not

8 simply created a significant risk of increasing his punishment but has in fact increased his

9 punishment in violation of the Ex Post Facto Clause of the United States Constitution.

10 41. The Governor’s reversals of the decisions in over 70 percent of the cases in which

11 the Board has granted parole has, at the least, significantly increased the risk of increasing

12 prisoners’ incarceration in violation of the Ex Post Facto Clause of the United States

13 Constitution.

14

IX. RELIEF SOUGHT

15

WHEREFORE, Plaintiffs and Plaintiff Class seek the following relief:

16

1. A declaration that defendants have denied plaintiffs’ rights under the Ex Post

17 Facto Clause of the United States Constitution;

18

2. A preliminary and permanent injunction against application to any Plaintiff or

19 member of Plaintiff Class of the provisions of Proposition 9 that amend California Penal

20 Code section 3041.5(b) and increase the deferral of subsequent parole hearings to

21 (presumptively) 15 years;

22

3. A preliminary and permanent injunction against application to any Plaintiff or

23 member of the Plaintiff Class of the provisions of Article V, Section 8(b) of the California

24 Constitution to the extent they permit the Governor to reverse or modify a decision of the

25 Board to grant parole;

26

4. Retain jurisdiction over this case until defendants have fully complied with

27 all orders of this Court, and there is a reasonable assurance that defendants will continue

28 to comply in the future absent continuing jurisdiction;

8

Case 2:05-cv-00830-LKK-CKD Document 434 Filed 08/21/12 Page 9 of 9

1

5. Costs and attorneys fees incurred in this action; and

2

6. Such other and further relief as may be just and proper.

3 Dated: August 21, 2012

4 Respectfully submitted,

5 DANIEL J. BRODERICK Federal Defender
6

7 /s/ Monica Knox MONICA KNOX
8 Assistant Federal Defender

/s/ Carter C. White CARTER C. WHITE Supervising Attorney

9

Attorneys for Plaintiffs

RICHARD M. GILMAN, et al.

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

9

 
 Case: 10-15471 12/06/2010 Page: 1 of 17 ID: 7568079 DktEntry: 30-1 Case 2:05-cv-00830-LKK-CKD Document 290 Filed 12/07/10 Page 1 of 17

FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

RICHARD M. G ILMAN, JAMES



MASONER, RICHARD W. B ROWN,

CHRIS FOWLER, EDWARD STEWART,

MARIO MARQUEZ, RICHARD LEWIS,

and GLORIA OLSON,

Plaintiffs-Appellees,

v.

ARNOLD SCHWARZENEGGER, Governor of California; R OBERT



DOYLE, Chairman of the Board of

Parole Hearings; A LL

COMMISSIONERS OF THE BOARD OF

PAROLE HEARINGS; ALL DEPUTY

COMMISSIONERS OF THE BOARD OF

PAROLE HEARINGS WHO HEAR LIFER

CASES,

 Defendants-Appellants.

No. 10-15471
D.C. No. 2:05-cv-00830-
LKK-GGH
OPINION

Appeal from the United States District Court for the Eastern District of California
Lawrence K. Karlton, Senior District Judge, Presiding
Argued and Submitted August 12, 2010—San Francisco, California
Filed December 6, 2010
Before: Susan P. Graber, Consuelo M. Callahan, and Carlos T. Bea, Circuit Judges.
Opinion by Judge Bea

19495

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19498

GILMAN v. S CHWARZENEGGER

COUNSEL
Terence J. Cassidy, Michael W. Pott (argued), and Thomas L. Riordan, Porter Scott, Sacramento, California, for the defendants-appellants.
Daniel J. Broderick, Federal Defender, and David Porter and Monica Knox (argued), Assistant Federal Defenders, Sacramento, California, for the plaintiffs-appellees.
OPINION
BEA, Circuit Judge:
Plaintiffs are eight California life-term prisoners who represent a class of similarly situated California prisoners. They allege that Proposition 9, the “Victims’ Bill of Rights Act of 2008: Marsy’s Law,” which modifies the availability and frequency of parole hearings, violates the Ex Post Facto Clause of the United States Constitution. The district court held that Plaintiffs were likely to succeed on the merits of their claim. We hold that the district court abused its discretion and, therefore, reverse.
The California Prison Parole Scheme
The California Board of Parole Hearings ( “Board”) has “the power to allow prisoners imprisoned in the state prisons

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GILMAN v. S CHWARZENEGGER

19499

. . . to go upon parole outside the prison walls and enclosures.” Cal. Penal Code § 3040 (2010). California prisoners who are serving sentences of life with the possibility of parole are not eligible for parole until they have served the greater of a term of seven years or “[a] term as established pursuant to any other provision of law that establishes a minimum term or minimum period of confinement. ” Id. § 3046(a).

The Board is required to conduct a prisoner’s first parole hearing one year prior to the prisoner’s minimum eligible parole release date. Id. § 3041(a). At the hearing, a panel— two or more commissioners or deputy commissioners of the Board—must first determine whether the prisoner is “suitable” for parole. See id. § 3041(b). The panel must find a prisoner suitable for parole and set a parole date

unless it determines that the gravity of the current convicted offense or offenses, or the timing and gravity of current or past convicted offense or offenses, is such that consideration of the public safety requires a more lengthy period of incarceration for this individual, and that a parole date, therefore, cannot be fixed at this meeting.

Id. The panel’s “fundamental consideration in parole decisions is public safety. ” In re Lawrence , 190 P.3d 535, 549 (Cal. 2008). “[T]he core determination of ‘public safety’ . . . involves an assessment of an inmate’s current dangerousness.” Id.1 The Governor may review and affirm, modify, or reverse a panel’s suitability determination. Cal. Const. art. V, § 8(b); Cal. Penal Code § 3041.2. But, the Governor’s review must be based on the same factors the Board is required to consider. Cal. Const. art. V, § 8(b).

1In California, “some evidence” of future dangerousness is required to deny parole. Hayward v. Marshall, 603 F.3d 546, 562 (9th Cir. 2010) (en banc).

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19500

GILMAN v. S CHWARZENEGGER

If the panel determines that the prisoner is unsuitable for parole at the time of the hearing, the panel must set the date for the prisoner’s next parole hearing. Cal. Penal Code § 3041.5(a)(6). At the next hearing, a panel determines whether intervening changes have rendered the prisoner suitable for parole. Id. § 3041.5(c).

The Deferral Process Before and After Proposition 9

Before Proposition 9 was enacted, the length of the deferral was determined by California Penal Code § 3041.5(b)(2). That section provided:

The board shall hear each case annually . . . , except the board may schedule the next hearing no later than the following:

(A) Two years after any hearing at which parole is denied if the board finds that it is not reasonable to expect that parole would be granted at a hearing during the following year and states the bases for the finding.

(B) Up to five years after any hearing at which parole is denied if the prisoner has been convicted of murder, and the board finds that it is not reasonable to expect that parole would be granted at a hearing during the following years and states the bases for the finding in writing.

Cal. Penal Code § 3041.5(b)(2) (2008) (emphasis added). In
2007, 35% of prisoners who were denied parole received
deferrals of one year, 32% received deferrals of two years,
and 33% received deferrals of three years or more. In 2008, these percentages were 40, 33, and 27, respectively. 2

2The 2008 statistics do not include data from parole hearings conducted after December 10, when Proposition 9 was implemented.

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GILMAN v. S CHWARZENEGGER

19501

Proposition 9 significantly changed the law governing deferral periods.3 The relevant changes were codified in Cali-
fornia Penal Code § 3041.5(b)(3) and provide:

The board shall schedule the next hearing, after considering the views and interests of the victim, as follows:

(A) Fifteen years after any hearing at which parole is denied, unless the board finds by clear and convincing evidence that the criteria relevant to the setting of parole release dates enumerated in subdivision (a) of Section 3041 are such that consideration of the public and victim’s safety does not require a more lengthy period of incarceration for the prisoner than 10 additional years.

(B) Ten years after any hearing at which parole is denied, unless the board finds by clear and convincing evidence that the criteria relevant to the setting of parole release dates enumerated in subdivision (a) of Section 3041 are such that consideration of the public and victim’s safety does not require a more lengthy period of incarceration for the prisoner than seven additional years.

(C) Three years, five years, or seven years after any hearing at which parole is denied, because the criteria relevant to the setting of parole release dates enumerated in subdivision (a) of Section 3041 are such that

3No changes were made to the basis for determining suitability or the Governor’s role in the parole process.

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19502

GILMAN v. S CHWARZENEGGER
consideration of the public and victim’s safety requires a more lengthy period of incarceration for the prisoner, but does not require a more lengthy period of incarceration for the prisoner than seven additional years.

Cal. Penal Code § 3041.5(b)(3) (2010) (emphasis added).

The most significant changes are as follows: the minimum deferral period is increased from one year to three years, the maximum deferral period is increased from five years to fifteen years, and the default deferral period is changed from one year to fifteen years. See id. Further, the burden to impose a deferral period other than the default period increased. Before Proposition 9 was enacted, the deferral period was one year unless the Board found it was unreasonable to expect the prisoner would become suitable for parole within one year. Cal. Penal Code § 3041.5(b)(2) (2008). After Proposition 9, the deferral period is fifteen years unless the Board finds by clear and convincing evidence that the prisoner will be suitable for parole in ten years, in which case the deferral period is ten years. Cal. Penal Code § 3041.5(b)(3)(A)-(B) (2010). If the Board finds by clear and convincing evidence that the prisoner will be suitable for parole in seven years, the Board has discretion to set a three-, five-, or seven-year deferral period. Id. § 3041.5(b)(3)(B)-(C).

Proposition 9 also amended the law governing parole deferral periods by authorizing the Board to advance a hearing date. The Board may exercise its discretion to hold an advance hearing sua sponte or at the request of a prisoner. “The board may in its discretion . . . advance a hearing . . . to an earlier date, when a change in circumstances or new information establishes a reasonable likelihood that consideration of the public and victim’s safety does not require the additional period of incarceration of the prisoner . . . . ” Id. § 3041.5(b)(4). Also, a prisoner may request an advance hear-

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GILMAN v. S CHWARZENEGGER

19503

ing by submitting a written request that “set[s] forth the change in circumstances or new information that establishes a reasonable likelihood that consideration of the public safety does not require the additional period of incarceration. ” Id. § 3041.5(d)(1). A prisoner is limited to one such request every three years. Id. § 3041.5(d)(3). Although the minimum deferral period is three years, there is no minimum period the Board must wait before it holds an advance hearing. See id. § 3041.5(b)(4).

Plaintiffs filed suit against the state in federal court under 42 U.S.C. § 1983. The only claim relevant to this appeal is Plaintiffs’ claim that Proposition 9 violated their rights under the Ex Post Facto Clause of the United States Constitution. Plaintiffs filed a motion for a preliminary injunction to prevent the Board from enforcing Proposition 9’s amended deferral periods.4 On February 4, 2010, the district court granted Plaintiffs’ motion for a preliminary injunction. On March 3, 2010, the state timely appealed. On April 7, 2010, the district court entered an order staying the preliminary injunction solely as to Plaintiff Gilman.

I

[1] “A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest. ” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24-25 (2008). “A preliminary injunction is an ‘extraordinary and drastic remedy’; it is never awarded as of right. ” Munaf v. Geren, 553 U.S. 674, 689-90 (2008) (citations omitted).

4Because class certification was on appeal, the motion for preliminary injunction was evaluated and granted only as to the named Plaintiffs. The district court’s order which certified the class was subsequently affirmed on appeal.

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This court reviews for an abuse of discretion a district court’s decision to grant or deny a preliminary injunction. Indep. Living Ctr. of S. Cal., Inc. v. Maxwell-Jolly , 572 F.3d 644, 651 (9th Cir. 2009). A two-part test is used to determine whether the district court abused its discretion. United States v. Hinkson, 585 F.3d 1247, 1261 (9th Cir. 2009) (en banc). First, this court must “determine de novo whether the [district] court identified the correct legal rule to apply to the relief requested.” Id. at 1262. A district court necessarily abused its discretion if it applied the incorrect legal standard. Id. at 1261. Second, if the district court applied the correct legal standard, this court will reverse only when “the [district] court’s application of the correct legal standard was (1) illogical, (2) implausible, or (3) without support in inferences that may be drawn from the facts in the record. ” Id. at 1262 (internal quotation marks omitted).

II

[2] “The States are prohibited from enacting an ex post facto law.” Garner v. Jones, 529 U.S. 244, 249 (2000) (citing U.S. Const. art. I, § 10, cl. 1).5 “One function of the Ex Post Facto Clause is to bar enactments which, by retroactive operation, increase the punishment for a crime after its commission.” Id. Although retroactive changes in laws governing parole of inmates may violate the Ex Post Facto Clause, “not every retroactive procedural change creating a risk of affecting an inmate’s terms or conditions of confinement is prohibited.” Id. at 250. A retroactive procedural change violates the Ex Post Facto Clause when it “creates a significant risk of prolonging [an inmate’s] incarceration. ” Id. at 251 (emphasis added). A “speculative” or “attenuated” risk of prolonging incarceration is insufficient to establish a violation of the Ex Post Facto Clause. Cal. Dep’t of Corr. v. Morales , 514 U.S. 499, 509 (1995). Thus, Plaintiffs cannot succeed on the merits

5The Ex Post Facto Clause applies to the states directly: “No State shall . . . pass any . . . ex post facto Law . . . . ” U.S. Const. art. I, § 10, cl. 1.

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of their ex post facto claim unless (1) Proposition 9, on its face, created a significant risk of increasing the punishment of California life-term inmates, or (2) Plaintiffs can “demonstrate, by evidence drawn from [Proposition 9’s] practical implementation . . . , that its retroactive application will result in a longer period of incarceration than under the [prior law]. ” Garner, 529 U.S. at 255.

In Morales, the Supreme Court upheld the constitutionality of a statutory change to the laws that governed California parole hearings. 514 U.S. at 501-02. There, the California legislature decreased the frequency of parole hearings for inmates convicted of multiple murders—from every year to up to every three years. Id. at 503. The Court explained the amendment did not increase the statutory punishment for any particular offense, did not change the date of inmates’ initial parole hearings, and did not change the standard by which the Board determined whether inmates were suitable for parole. Id. at 507. The amendment simply “introduced the possibility that after the initial parole hearing, the Board would not have to hold another hearing the very next year, or the year after that, if it found no reasonable probability that respondent would be deemed suitable for parole in the interim period. ” Id. This change did not violate the Ex Post Facto Clause because it did not “produce[ ] a sufficient risk of increasing the measure of punishment attached to the covered crimes. ” Id. at 509. The change “applie[d] only to a class of prisoners[, murderers of multiple victims,] for whom the likelihood of release on parole [was] quite remote, ” id. at 510; the frequency of an inmate’s hearings was not affected unless the Board concluded “ ‘it [was] not reasonable to expect that parole would be granted at a hearing during the following years,’ ” id. at 511 (quoting Cal. Penal Code § 3041.5(b)(2) (1982)); and the Board retained the authority to schedule annual hearings, id. Thus, the decrease in the frequency of parole hearings “create[d] only the most speculative and attenuated possibility of producing the prohibited effect of increasing the measure of punishment for covered crimes.” Id.

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at 509. Further, inmates who received two- or three-year deferrals were not prohibited from requesting advance hearings based on changed circumstances that affected their suitability for parole. Id. at 512.

In Garner, the Georgia Board of Pardons ( “Board”) changed the frequency of parole hearings from every three years to up to every eight years for inmates serving life sentences. 529 U.S. at 247. Jones, who was serving two life sentences for murder, was denied parole at his first parole hearing. Id. The Board scheduled his next parole hearing for eight years later. Id. Jones sued the Board in federal court under 42 U.S.C. § 1983 and alleged the Board’s amendment violated the Ex Post Facto Clause. Id. at 248. The district court granted summary judgment to the Board. Id. The Eleventh Circuit reversed because the amendment “ ‘seem[ed] certain’ to result in some prisoners serving extended periods of incarceration.” Id. at 255. The Eleventh Circuit distinguished the case from Morales because the change made by the Georgia Board (1) applied to a broader class of inmates (i.e., all life-term inmates), some of whom could expect to be paroled at some point; (2) allowed the Board to delay subsequent hearings for up to eight years, instead of three years; and (3) did not require the Board to state the bases for finding there was no reasonable probability the inmate would become suitable for parole before the next hearing. Id. at 249.

The Supreme Court reversed and remanded. Id. at 257. The Court rejected Jones’s contention that the amendment eliminated the Board’s exercise of discretion between scheduled parole hearings on the basis that the changes to the frequency of parole hearings were “qualified in two important respects.” Id. at 254. “First, the law vests the Parole Board with discretion as to how often to set an inmate’s date for reconsideration, with eight years for the maximum. ” Id. The Board’s policy provides that it will set the duration between parole hearings at more than three years only if “it is not reasonable to expect that parole would be granted during the intervening

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years.” Id. “Second, the Board’s policies permit expedited parole reviews in the event of a change in [an inmate’s] circumstance or where the Board receives new information that would warrant a sooner review.” Id. (internal quotation marks omitted). The Court concluded that the amendment “[did] not by its own terms show a significant risk [of increasing Jones’s punishment].” Id. at 255. Thus, Jones was required to “demonstrate, by evidence drawn from the rule’s practical implementation by the [Board], that its retroactive application will result in a longer period of incarceration than under the earlier rule.” Id. Because there was insufficient evidence in the record to determine whether the amendment “created a significant risk of increased punishment for [Jones], ” the Court remanded the case. Id. at 257.

[3] Here, as in Morales and Garner, Proposition 9 did not increase the statutory punishment for any particular offense, did not change the date of inmates’ initial parole hearings, and did not change the standard by which the Board determined whether inmates were suitable for parole. However, the changes to the frequency of parole hearings here are more extensive than the change in either Morales or Garner. First, Proposition 9 increased the maximum deferral period from five years to fifteen years. This change is similar to the change in Morales (i.e., tripled from one year to three years) and the change in Garner (i.e., from three years to eight years). Second, Proposition 9 increased the minimum deferral period from one year to three years. Third, Proposition 9 changed the default deferral period from one year to fifteen years. Fourth, Proposition 9 altered the burden to impose a deferral period other than the default period. Before Proposition 9, the deferral period was one year unless the Board found it was unreasonable to expect the prisoner would be suitable for parole in one year. After Proposition 9, the deferral period is fifteen years unless the Board finds by clear and convincing evidence that the prisoner will be suitable for parole in ten years, in which case the deferral period is ten years. If the Board finds by clear and convincing evidence

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that the prisoner will be suitable for parole in seven years, the Board has discretion to set the deferral period at three, five, or seven years. Neither Morales nor Garner involved a change to the minimum deferral period, the default deferral period, or the burden to impose a deferral period other than the default period.

[4] In both Morales and Garner, even after the changes to the laws governing the frequency of parole hearings, the Board retained discretion to set subsequent parole hearings at the same frequency as it would have before the changes to the law. But here, Proposition 9 eliminated the Board’s discretion to set a one-year deferral period, even if the Board were to find by clear and convincing evidence that a prisoner would be suitable for parole in one year. In the two years before Proposition 9 was implemented, approximately two-thirds of prisoners received deferral periods of one or two years. Now, all prisoners will receive deferral periods of at least three years. Further, the Board must set a fifteen-year deferral period unless it finds by clear and convincing evidence that the prisoner will be suitable for parole in ten years or less. Thus, the changes required by Proposition 9 appear to “create[ ] a significant risk of prolonging [Plaintiffs’] incarceration.” Garner, 529 U.S. at 251. 6

Even assuming, without deciding, that the statutory changes decreasing the frequency of scheduled hearings would create a risk of prolonged incarceration, the availability

6This conclusion, however, assumes that more frequent parole hearings produce more frequent grants of parole, rather than more frequent denials of parole. It is true that more frequent hearings give a prisoner earlier opportunities at being paroled; however, Plaintiffs produced no evidence to support a finding that more frequent parole hearings result in more frequent grants of parole. Indeed, the assumption that more frequent parole hearings produce more frequent grants of parole is belied by the situations of several of the named Plaintiffs in this case, who were subject to repeated one- and two-year deferrals. These prisoners would not have served shorter prison terms just because of more frequent parole hearings.

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of advance hearings is relevant to whether the changes in the frequency of parole hearings create a significant risk that prisoners will receive a greater punishment. Garner, 529 U.S. at 256-57;7 Morales, 514 U.S. at 512. In Morales, the prisoner contended “there [was] some chance that the amendment might . . . produce an increased term of confinement for some prisoners who might experience a change of circumstances that could render them suitable for parole during the period between their hearings.” 514 U.S. at 512. The Court rejected this contention and explained that, even if it assumed such a change of circumstances, “there is no reason to conclude that the amendment will have any effect on any prisoner’s actual term of confinement, for the current record provides no basis for concluding that a prisoner who experiences a drastic change of circumstances would be precluded from seeking an expedited hearing from the Board. ” Id. Even though such expedited hearings were not provided by statute or regulation, the Court relied on the Board’s “practice” of “review[ing] for merit any communication from an inmate asking for an earlier suitability hearing.” Id. As the Court explained, “[a]n expedited hearing by the Board . . . would remove any possibility of harm” to prisoners who experienced changes in circumstances between hearings. Id. at 513 (emphasis added).

[5] Here, advance hearings are explicitly made available

7In Garner, the Board adopted a policy that permitted inmates, “upon a showing of a change in their circumstance or where the Board receives new information, to receive expedited reconsideration for parole. ” 529 U.S. at 248 (citation and internal quotation marks omitted). The Court held that the Board’s internal policy statement was relevant to whether changes to the frequency of parole hearings violated the Ex Post Facto Clause. Id. at 256. As the Court explained, “policy statements, along with the Board’s actual practices, provide important instruction as to how the Board interprets its enabling statute and regulations, and therefore whether, as a matter of fact, the amendment to [the Board’s rules] created a significant risk of increased punishment. ” Id. “Absent a demonstration to the contrary, [courts must] presume the Board follows its statutory commands and internal policies in fulfilling its obligations. ” Id.

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by statute: “The board may in its discretion . . . advance a hearing . . . to an earlier date, when a change in circumstances or new information establishes a reasonable likelihood that consideration of the public and victim’s safety does not require the additional period of incarceration of the prisoner. ” Cal. Penal Code § 3041.5(b)(4). The Board may exercise its discretion to hold an advance hearing sua sponte or at the request of a prisoner. A prisoner may request an advance hearing by submitting a written request that “set[s] forth the change in circumstances or new information that establishes a reasonable likelihood that consideration of the public safety does not require the additional period of incarceration. ” Id. § 3041.5(d)(1). The Board’s decision to deny a prisoner’s request for an advance hearing is subject to judicial review. Id. § 3041.5(d)(2). Here, as in Morales, an advance hearing by the Board “would remove any possibility of harm ” to prisoners because they would not be required to wait a minimum of three years for a hearing. 514 U.S. at 513.

Plaintiffs provide four reasons why the advance hearings do not sufficiently reduce the risk of increased punishment for prisoners. None of these reasons is persuasive.

Plaintiffs’ first reason is that the decision to grant a prisoner’s request for an advance hearing is entirely discretionary. Neither a change in circumstances nor new information requires the Board to hold an advance hearing. However, absent evidence to the contrary, this court must presume the Board will exercise its discretion in a manner consistent with the Ex Post Facto Clause. See Garner, 529 U.S. at 256 (“Absent a demonstration to the contrary, we presume the Board follows its statutory commands and internal policies in fulfilling its obligations. ”). Plaintiffs have adduced no evidence that the Board has denied a request for an advance hearing where a prisoner has shown a change in circumstances or new evidence. In fact, Plaintiffs have adduced no evidence that the Board has denied a request for an advance hearing for any reason. Thus, this court must presume that the

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Board will, upon request, schedule advance hearings for prisoners who become suitable for parole prior to their scheduled hearings.

Plaintiffs’ second reason is that “there is no mechanism or procedure in place for the Board to initiate a review or to accept, consider or rule on a prisoner’s request [for an advance hearing].” We are not persuaded. Section 3041.5(d)(1) allows a prisoner to request an advance hearing, and § 3041.5(b)(4) allows the Board to advance a hearing based on a change in circumstances or new information. Further, in Morales, no statute or regulation provided for advance hearings, yet the Court relied on the fact that the Board—the same Board involved in this case—had a practice of reviewing inmates’ requests for earlier parole hearings. 514 U.S. at 512. If the Board were able to review inmates’ requests for advance hearings before such hearings were explicitly authorized by statute, there is no reason to believe that the Board is no longer capable of handling such requests. Indeed, just the contrary is true now that statutory authorization has supplanted mere practice. Further, Plaintiffs have adduced no evidence that the Board has denied or failed to respond to requests for advance hearings.

[6] Plaintiffs’ third reason is that the district court concluded that “there will necessarily be a delay between any meritorious request for an advance hearing and the grant of such hearing, and Plaintiffs contend, with some evidence, that this delay will likely exceed a year. ” This conclusion is not supported by the evidence in the record. Plaintiffs rely in part on the fact that the Board’s decision to deny parole does not become final for four months. But Plaintiffs cite no authority that requires a prisoner to wait until the Board’s decision is final before he requests an advance hearing based on changed circumstances or new information. Other steps may also delay an advance hearing once a request has been made: the Board must solicit the views of the victim or next of kin before it grants a request for an advance hearing, Cal. Penal Code

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§ 3041.5(b)(4), (d)(2); the Board must consider the merits of the request, id. § 3041.5(b)(4); and, if the Board grants the request, it must provide 90 days’ notice to the victim or next of kin before it holds the hearing, id. § 3043(a)(1). But Plaintiffs fail to explain how these statutory requirements make it “virtually impossible” for a prisoner to receive an advance hearing within one year of the denial of parole—the previous default deferral period. The speculative and attenuated risk that an advance hearing will not be held within one year of a request is insufficient to establish an ex post facto violation. See Morales, 514 U.S. at 508-09.

Plaintiffs’ fourth reason is that they will be unable to establish changed circumstances or new information with respect to static factors such as the circumstances of the commitment offense or prior criminal history. Plaintiffs are correct that those static factors will not change; but a prisoner’s suitability for parole may change even though static factors remain unchanged. For example, the passage of time is a change in circumstances that may affect a prisoner’s suitability for parole (i.e., the prisoner’s current dangerousness) even though his prior criminal history has not changed. See Lawrence, 190 P.3d at 560 (holding that the passage of time is a factor the Board must consider when it determines whether a prisoner is currently dangerous and, thus, unsuitable for parole). Plaintiffs also contend that they will be unable to establish changed circumstances or new information with respect to intangible factors such as the failure to accept responsibility or the lack of sufficient remorse. But, just as a prisoner must explain his acceptance of responsibility and convey his remorse at a parole hearing, a prisoner can, in a request for an advance hearing, explain that he has accepted full responsibility for his crime and convey his remorse.

[7] There were no facts in the record from which the district court could infer that Proposition 9 created a significant risk of prolonging Plaintiffs’ incarceration; thus, the district court abused its discretion. See Hinkson, 585 F.3d at 1262

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(holding that a trial court abuses its discretion when its application of the correct legal standard was “without support in inferences that may be drawn from the facts in the record ”). Because Proposition 9 does not create a significant risk of prolonging Plaintiffs’ incarceration on any of the theories asserted by Plaintiffs, they are unlikely to succeed on the merits of their ex post facto claim. Therefore, we reverse the district court’s order that granted Plaintiffs’ motion for a preliminary injunction.

REVERSED.

 
 RICHARD M. GILMAN, et al., Plaintiffs, v.
J. DAVIS., et al., Defendants.
No. CIV. S-05-830 LKK/GGH.
United States District Court, E.D. California.
March 4, 2009.
ORDER
LAWRENCE K. KARLTON, District Judge.
Plaintiffs in this suit are eight California state prisoners with convictions for murder and who are currently serving life sentences that include the possibility of parole, seeking to represent themselves and others similarly situated. Defendants are members of the California Board of Parole Hearings and the Governor of California, who also participates in the parole process. Plaintiffs challenge the factors defendants allegedly consider in determining whether to grant parole, the adequacy of the statements of reasons provided when parole is denied, and the scheduling of parole suitability hearings, and the governor's ability to review parole suitability determinations, alleging violations of the Ex Post Facto and Fourteenth Amendment Due Process Clauses. Pending before the court is plaintiffs' motion for class certification. For the reasons explained below, this motion is granted.
I. BACKGROUND
A. California's Parole Process
All California prisoners with life sentences are eligible for parole after serving a certain number of years. The precise length of time varies, based on the conviction offense and date of conviction. Here, all class members have served this number of years.
Once a life prisoner is eligible for parole, it is up to the Board of Parole Hearings ("Board") to determine whether he is "suitable" for parole. California Penal Code section 3041 provides statutory guidance regarding "suitability." Subsection (a) provides that
The release date shall be set in a manner that will provide uniform terms for offenses of similar gravity and magnitude in respect to their threat to the public, and that will comply with the sentencing rules that the Judicial Council may issue and any sentencing information relevant to the setting of parole release dates. The board shall establish criteria for the setting of parole release dates and in doing so shall consider the number of victims of the crime for which the inmate was sentenced and other factors in mitigation or aggravation of the crime.

Cal. Pen. Code. § 3041(a). Subsection (b) further provides that a prisoner is suitable for parole, such that a release date "shall" be set, unless the Board determines that
the gravity of the current convicted offense or offenses, or the timing and gravity of current or past convicted offense or offenses, is such that consideration of the public safety requires a more lengthy period of incarceration for this individual, and that a parole date, therefore, cannot be fixed at this meeting.
Cal. Pen. Code § 3041(b) (emphasis added). See also In re Lawrence, 44 Cal.4th 1181, 12051206 (2008) ("the Board (and the Governor) [may] identify and weigh only the factors relevant to predicting `whether the inmate will be able to live in society without committing additional antisocial acts.'") (quoting In re Rosenkrantz, 29 Cal.4th 616, 655 (2002)).
The Board makes suitability determinations at parole hearings, the first of which occurs a year before eligibility. Cal. Pen. Code § 3041(a). If the Board finds the prisoner suitable for parole, it sets a parole release date. That decision becomes final in 120 days, and the Governor may exercise his authority to review the decision and affirm, reverse or modify it. Cal. Const., Art. V, § 8(b); Cal. Pen. Code, § 3041.2. If the Governor reverses a grant of parole, the prisoner is defaulted to a one-year deferral and considered again for parole by the Board the following year.
If the Board finds the prisoner is not suitable for parole, it determines when it will next consider his suitability for parole. Cal. Pen. Code, § 3041.5. Prior to the adoption of Proposition 9, the default was for reconsideration at a new hearing in one year, although the Board had discretion to set a lengthier deferral period.[1] Pursuant to the amendments effectuated by Proposition 9, the presumptive deferral period has increased to fifteen years, and the board has decreased discretion to deviate from this presumption. Cal. Pen. Code § 3041.5.
B. Plaintiffs' Claims
The Plaintiffs' Fourth Amended Complaint challenges essentially all aspects of the parole process.
Plaintiffs challenge the process by which the Board makes its suitability determinations, alleging that the Board makes these decisions by relying on factors other than those permitted by the statute. Specifically, plaintiffs allege that defendants have a practice of not seriously considering a prisoner's suitability for parole until he has served an arbitrary number of years (First, Second, and Third claims), and that defendants rely on "unchanging factors," such as the commitment offense, "despite clear evidence of rehabilitation and thus lack of risk to public safety." (Fourth claim). In relying on these impermissible factors, defendants allegedly ignore the regulatory criteria, such that those criteria are cited only as pretense. (Sixth claim).
Plaintiffs also challenge the "statement of reasons" given when parole is denied or deferred on the grounds that the defendants' practice is to issue statements that do not "connect the reasons to risk to public safety" and do not "provide meaningful guidance to the prisoner about what he must do to obtain parole." (Fifth claim).

Next, plaintiffs challenge the way in which the time period for deferrals is set. Plaintiffs allege that the Proposition 9 amendments to Cal. Pen. Code § 3041.5 both violate the Ex Post Facto clause and cause parole to be deferred for reasons unrelated to the statutory criteria provided in § 3041(a)-(b). (Eighth claim). Even prior to Proposition 9, defendants allegedly "repeatedly deferred parole reconsideration for some Plaintiffs and members of Plaintiff Class for more than one year based on reasons that are not reasonably connected to the length of the deferral." (Seventh claim).
Finally, plaintiffs challenge Article V, Section 8(b) of the California Constitution, adopted by ballot initiative in 1988. This provision grants the Governor the ability to reverse the Board's determinations regarding suitability or unsuitability for parole. Plaintiffs allege that this provision, as it has been used and as it has influenced the Board, has had the effect of "significantly increas[ing] the risk of increasing those prisoners' incarceration in violation of the Ex Post Facto Clause of the United States Constitution." (Ninth claim).
Plaintiffs seek declaratory and injunctive relief to cure these violations, including an injunction against retroactive application of Proposition 9 to members of plaintiff class.
II. STANDARD
A party seeking to certify a class must demonstrate that it has met all four requirements of Rule 23(a) and at least one of the requirements of Rule 23(b). Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180, 1186 (9th Cir. 2001). Rule 23(a) allows a class to be certified
only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.
Fed. R. Civ. P. 23(a). In other words, the class must satisfy the requirements of numerosity, commonality, typicality, and adequacy.
Rule 23(b) provides for three types of class actions. Fed. R. Civ. P. 23(b). Here, plaintiff seeks to certify the class under Rule 23(b)(3), which allows for a class to be certified if "the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole." Fed. R. Civ. P. 23(b)(2).
The court must conduct a "rigorous analysis" of the moving party's claims to examine whether the requirements are satisfied, Gen. Tel. Co. of Southwest v. Falcon, 457 U.S. 147, 161 (1982). Generally, the court should not consider whether the party seeking class certification has stated a cause of action or is likely to prevail on the merits. Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178 (1974). Nevertheless, the court is not only "'at liberty to' consider evidence which goes to the requirements of Rule 23" but in fact is required to consider such evidence, when applicable, "'even [if] the evidence may also relate to the underlying merits of the case.'" Dukes v. WalMart, 509 F.3d 1168, 1178 n.2 (9th Cir. 2007) (quoting Hanon v. Dataproducts Corp., 976 F.2d

497, 509 (9th Cir. 1992)). If the court concludes that the moving party has met its burden of proof, the court has broad discretion to certify the class. Zinser, 253 F.3d at 1186.
III. ANALYSIS
Whether claims can appropriately be brought as a class action obviously depends on what those claims are. This is a simple truth, but many of the arguments defendants raise in opposition to class certification rest on misconceptions as to the nature of plaintiffs' claims and the relief sought.
In this suit, plaintiffs challenge the procedures used in determining suitability for parole: the factors considered, the explanations given, and the frequency of the hearings. Although the choice of procedure influences the outcome, plaintiffs do not directly challenge the outcomes as they relate to any individual class member.
A. Preliminary Issues
In addition to disputing whether plaintiffs have satisfied Fed. R. Civ. P. 23(a)-(b), defendants raise three preliminary issues. Defendants argue that plaintiffs lack standing, that the class is not ascertainable, and that certification is premature.
1. Standing
Defendants argue that plaintiffs lack standing to bring this claim for injunctive relief.[2] A case seeking injunctive relief only satisfies Article III's case or controversy requirement when there is a "real and immediate threat of injury." City of Los Angeles v. Lyons, 461 U.S. 95, 104 (1983). In Lyons, the Supreme Court held that the plaintiff had failed to establish such a threat. Id. at 110. The plaintiff there had alleged that members of the Los Angeles police department were using unconstitutional force during traffic stops, but plaintiff had not shown and could not show that he would be subjected to a traffic stop or that if such a stop occurred that he would be subjected to the complained of force. Id. at 105-06. Thus, the risk of future injury to the plaintiff in Lyons was too small to give rise to a case, and plaintiff lacked standing to seek injunctive relief.
This case is nothing like Lyons. Plaintiffs have alleged that they are being injured by the defendants' practice of using unconstitutional procedures in making parole decisions and setting parole hearing dates. There is no doubt that every member of the plaintiff class will be evaluated for suitability for parole. Plaintiffs further allege that these improper procedures are consistently applied, and not that each parole determination involves merely a chance that challenged procedures will be invoked. This is sufficient to demonstrate standing in this case. C.f. HodgersDurgin v. De La Vina, 199 F.3d 1037, 1041-42 (9th Cir. 1999) (finding standing because "unlike in Lyons, in this case there is no string of contingencies necessary to produce an injury.").
2. Ascertainability

The proposed class consists of California state prisoners who: "(i) have been sentenced to a term that includes life; (ii) are serving sentences that include the possibility of parole; (iii) are eligible for parole; and (iv) have been denied parole on one or more occasions." This definition allows ready determination of whether an individual is or is not in the class (as "eligible for parole" has a regulatory definition), and therefore suffices to define an ascertainable class. See Wright & Miller, 7A Fed. Prac. & Proc. Civ. 3d § 1760.
3. Whether Certification Is `Premature'
Defendants also argue that class certification is premature because "Plaintiffs have not provided any factual or evidentiary support for their allegations." (Defs.' Opp'n, 12.) Presentation of evidence is not a per se requirement for class certification. "Sometimes the issues [in applying Rule 23] are plain enough from the pleadings to determine whether the interests of the absent parties are fairly encompassed within the named plaintiff's claim." Gen. Tel. Co. of the Southwest v. Falcon, 457 U.S. 147, 160 (1982). When the issues are not so plain, courts "must consider evidence which goes to the requirements of Rule 23 at the class certification stage even if the evidence may also relate to the underlying merits of the case." Dukes v. Wal-Mart, Inc., 509 F.3d 1168, 1178 (9th Cir. 2007) (quoting Hanon v. Dataproducts Corp., 976 F.2d 497, 509 (9th Cir. 1992)) (modification in original omitted). Thus, whether evidence is required will depend on the contours of Rule 23's application to a particular case. As discussed below, in this case, the court can evaluate whether each of Rule 23's requirements are satisfied without additional evidence. The present motion is not premature.
B. Requirements under Rule 23(a)
Fed. R. Civ. P. 23(a) provides four requirements for a class action. These requirements are (1) the impracticability of joining all members ("numerosity"); (2) the existence of common questions of law or fact ("commonality"); (3) typicality of the claims and defenses of the parties with respect to the proposed class ("typicality"); and (4) adequate representation of the proposed class by the parties before the court ("adequacy of representation"). Fed. R. Civ. P. 23(a); see also Stanton v. Boeing Co., 327 F.3d 938, 953 (9th Cir. 2003). In this case, the parties appropriately agree that numerosity is satisfied.
1. Commonality
Commonality exists when "there are questions of law or fact common to the class." Fed. R. Civ. P. 23(a)(2). Rule 23(a)(2) does not require that every or all questions of fact or law be common or identical. Hanlon v. Chrysler Corp., 150 F.3d 1011, 1019 (9th Cir. 1998). In a civil rights suit, the commonality requirement is satisfied where the suit challenges a "system-wide practice or policy that affects all of the putative class members." Armstrong v. Davis, 275 F.3d 849, 868 (9th Cir. 2001). Thus, commonality may exist where there is a common legal issue with varied factual predicates. Hanlon, 150 F.3d at 1019-20.
Here, plaintiffs allege that all class members were subjected to the same unconstitutional practices. Because plaintiffs do not challenge the outcomes of any parole suitability

determinations, the individualized balancing of factors inherent in those determinations is not directly at issue in this suit. Of course, plaintiffs will likely need to address some individuals' experiences to prove that the alleged practices exist, and the differences between the experiences and histories of named and unnamed plaintiffs may make it difficult for plaintiffs to make this showing. However, the alleged injuries and legal theories are the same across the class. Armstrong established that this commonality sufficed under Rule 23(a)(2). 275 F.3d at 868.
2. Typicality
Typicality requires that "the claims or defenses of the representative parties are typical of the claims or defenses of the class." Fed. R. Civ. P. 23(a)(3). As such, it substantially overlaps with the test for commonality. For typicality to be met, named plaintiffs' claims need not be identical to those of the putative class members. Hanlon, 150 F.3d at 1020. Instead, plaintiffs' claims need only be "reasonably coextensive" with the claims of the putative class. Id. The inquiry focuses on the claims themselves—not the factual predicates from which the claims arise. Hanon v. Dataprods. Corp., 976 F.2d 497, 508 (9th Cir. 1992). "The test of typicality `is whether other members have the same or similar injury, whether the action is based on conduct which is not unique to the named plaintiffs, and whether other class members have been injured by the same course of conduct.'" Id.
All class members are subject to the parole determination process. Because plaintiffs have alleged system-wide practices, plaintiffs' alleged injuries are necessarily typical of (if not identical to) those of unnamed class members.
3. Adequacy of Representation
Adequacy of representation requires that "representative parties will fairly and adequately protect the interests of the class." Fed. R. Civ. P. 23(a)(4). In order for plaintiffs to adequately represent the putative class members, they must demonstrate, first, that they do not possess any conflicts of interest with the class members and, second, that both plaintiffs and their counsel will work to "prosecute the action vigorously" with respect to the entire class. Stanton, 327 F.3d at 957.
Both adequacy requirements are met here. There is no indication that the interests of named and unnamed class members conflict or otherwise diverge. Plaintiffs and their counsel have demonstrated, and defendants do not dispute, that they are able to vigorously and competently prosecute this action. Therefore, adequacy is satisfied.
C. Requirements under Rule 23(b)(2)
The analysis of Rule 23(b)(2) further overlaps with the factors in Rule 23(a). Rule 23(b)(2) requires that "the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole." Fed. R. Civ. P. 23(b)(2). Here, plaintiffs allege an overarching policy that applies to all class members. Therefore, plaintiff's allegations satisfy this requirement. The injunctive relief sought by plaintiffs would apply to the class as a whole—the

claims in this suit would not entitle named or unnamed class members to any form of individualized injunctive relief.
IV. CONCLUSION
Plaintiffs have satisfied the requirements of Fed. R. Civ. P. 23(a), and have further satisfied Fed. R. Civ. P. 23(b)(2). Accordingly, plaintiffs' motion for class certification is GRANTED.
IT IS SO ORDERED.
[1] This system itself was the result of 1982 and 1994 amendments to the statute. Plaintiffs state that at the time when named plaintiffs Gilman, Brown, Stewart, Marquez, Lewis, and Olson committed their offenses, the statute provided for only annual reconsideration hearings absent conviction for multiple murders. Plaintiffs state that when the remaining named plaintiffs, Masoner and Fowler, committed their offenses, the presumption was for annual hearings but for cause and upon specific findings could be extended to two years before reconsideration. Plaintiffs' complaint does not explicitly allege that the amendments prior to Proposition 9 were unconstitutional.
[2] The standing inquiry is separate from class certification.

 
 RICHARD M. GILMAN, et al., Plaintiffs, v.
J. DAVIS., et al., Defendants.
No. CIV. S-05-830 LKK/GGH.
United States District Court, E.D. California.
March 4, 2009.
ORDER
LAWRENCE K. KARLTON, Senior District Judge.
Plaintiff Richard Gilman, a state prisoner, initially filed this suit on April 7, 2005. At the time, he was proceeding pro se. He named as defendants members of the Board of Parole Hearings (formerly the Board of Prison Terms and Parole) and governor Arnold Schwarzenegger. He alleged in his Second Amended Complaint that defendants maintained "a systematic pattern or policy of denying parole to first-degree murderers," and that this policy was based solely on their offense and pre-imprisonment conduct. (Second Amended Complaint, 4-5) Plaintiff argued that this alleged practice violated the Due Process Clause of the Fourteenth Amendment.
On June 2, 2008, the Magistrate Judge assigned to the case granted Gilman's request for appointment of counsel. At that time, a pretrial conference had been set for June 27, 2008, and a bench trial was anticipated, although dates for the trial had not been set. The Magistrate's order appointing counsel vacated the existing scheduling order, including the pre-trial conference.
The newly appointed counsel "sought leave to file an amended complaint for the purpose of naming the appropriate parties as defendants." (Order of June 20, 2008). The Magistrate's order, however, did not clearly limit the scope of the amendments. The Magistrate ordered that "if plaintiff elects to proceed upon an amended complaint, plaintiff must file a third amended complaint within thirty days. Should plaintiff name additional defendants, as plaintiff's counsel anticipates, counsel is responsible for serving the third amended complaint upon any newly named defendants."
The Magistrate then approved two stipulations extending the deadline for filing an amended complaint. These stipulations noted that extensions were needed so that counsel could interview various potential co-plaintiffs. (See Orders of July 22, 2008 and September 25, 2008.) The Third Amended Complaint ("TAC") was filed on October 7, 2008.
The TAC added four named defendants and ninety-nine Doe defendants. Despite the explicit instruction of the magistrate's order, the TAC apparently has not been served on the newly named defendants. (Defs.' Mot. to Strike, 3:17-19.) The TAC further added four plaintiffs, and was filed as a putative class action. Finally, the TAC added numerous causes of action. These new causes of action target the scheduling of parole hearings (whereas the SAC only complained

of the denial of parole), and allege violations of the Equal Protection and Ex Post Facto Clauses (whereas the SAC only alleged violations of the Due Process Clause).
The TAC was screened pursuant 28 U.S.C. § 1915A, and defendants were ordered to file an answer. The screening order acknowledged the new claims, but did not indicate that the TAC exceeded the scope of the leave to amend. Plaintiffs then notified the Magistrate of their intent to seek leave to file a Fourth Amended Complaint. The Magistrate vacated his order directing defendants to answer the TAC, and directed plaintiffs to "file their motion for leave [to amend] and for class certification."
Plaintiffs now seek leave to file a Fourth Amended and Supplemented Complaint ("FAC"). This complaint names eight individual plaintiffs, only three of whom were named plaintiffs in the TAC, and names as defendants the current members of the Board of Parole Hearings. It also, in plaintiff's words, seeks to "eliminate some causes of action, consolidate others, and to clarify the precise conduct of defendants that is alleged to violate the constitutional rights of Plaintiffs and Plaintiff Class." In this regard, the claims in the FAC are largely the same as those in the TAC, as described above. Finally, plaintiffs seek to supplement their complaint to include a cause of action challenging California's Proposition 9, passed in November 2008, as violating the Ex Post Facto and Due Process clauses.
Plaintiffs' motion for leave to amend was filed on December 15, 2008. On January 29, 2009 (the day before that motion was to be heard), plaintiffs filed a "corrected" proposed Fourth Amended Complaint. This corrected complaint includes one claim that was brought in the TAC, but which was omitted from the originally filed FAC. Although the court is inclined to treat this corrected complaint as a fifth amended complaint, the court accepts the corrected complaint in place of the one originally filed.
Defendants oppose plaintiffs' motion for leave to amend and supplement the complaint. Defendants have also filed a motion to strike the TAC, arguing that the Magistrate Judge granted leave to amend that was limited in scope, that the amendments exceeded this scope, and that they must therefore be rejected.
I. STANDARDS
A. Standard for Amendment Pursuant to Fed. R. Civ. P. 15(a)
The Federal Rules provide that leave to amend pleadings "shall be freely given when justice so requires." Fed. R. Civ. P. 15(a). "The decision of whether to grant leave to amend [lies] within the discretion of the district court." Leadsinger, Inc. v. BMG Music Publishing, 512 F.3d 522, 532 (9th Cir. 2008). Among the factors which can support denial of leave to amend are
undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [and] futility of amendment.

Id. (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)) (modification in original), Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1035 (9th Cir. 2008). The party opposing amendment bears the burden of showing that these factors are present. DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 187 (9th Cir. 1987) ("The party opposing amendment bears the burden of showing prejudice.").
Prejudice to the opposing party is the most important of these factors. See Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003) (per curiam), Jackson v. Bank of Hawaii, 902 F.2d 1385, 1387 (9th Cir. 1990) (citing Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 320, 330-31 (1971)).
While delay alone is insufficient to deny amendment, undue delay is a factor to be considered. See Morongo Band of Mission Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir. 1990) (affirming district court's denial of motion for leave to amend to add new claims made two years into litigation). Pertinent to consideration of this factor is whether the moving party knew or should have known the facts and theories raised by the amendment in the original pleading. See Jackson, 902 F.2d at 1388 (citing E.E.O.C. v. Boeing Co., 843 F.2d 1213, 1222 (9th Cir.)).
Amendment may also be denied when it is futile. See Kiser v. General Electric Corp., 831 F.2d 423, 428 (3d Cir. 1987). The test for futility "is identical to the one used when considering the sufficiency of a pleading challenged under Rule 12(b)(6)." Miller v. Rykoff-Sexton, Inc., 845 F.2d 209, 214 (9th Cir. 1988) (citing Baker v. Pacific Far East Lines, Inc., 451 F. Supp. 84, 89 (N.D. Cal. 1978)).
B. Standard for Supplemental Pleadings Pursuant to Fed. R. Civ. P. 15 (d)
Rule 15 (d) provides that "[u]pon motion of a party the court may, upon reasonable notice and upon such terms as are just, permit the party to serve a supplemental pleading setting forth transactions or occurrences or events which have happened since the date of the pleading sought to be supplemented." Fed. R. Civ. P. 15(d). The purpose of Rule 15(d) is to promote as complete an adjudication of the dispute between the parties as possible by allowing the addition of claims which arise after the initial pleadings are filed. William Inglis & Sons Baking Co. v. ITT Continental Baking Co., Inc., 668 F.2d 1014, 1057 (9th Cir. 1981).
Rule 15(d) gives district courts broad discretion in allowing supplemental pleadings. Fed. R. Civ. P. 15, advisory committee's note. "The rule is a tool of judicial economy and convenience. Its use is therefore favored." Keith v. Volpe, 858 F.2d 467, 473 (9th Cir. 1988).
Rule 15(d) . . . is a useful device, enabling a court to award complete relief, or more nearly complete relief, in one action, and to avoid the cost, delay and waste of separate actions which must be separately tried and prosecuted. [Rule 15(d) motions are] [s]o useful . . . and of such service in the efficient administration of justice that they ought to be allowed as of course, unless some particular reason for disallowing them appears, though the court has the unquestioned right to impose terms upon their allowance when fairness appears to require them.

Keith, 858 F.2d at 473 (quoting New Amsterdam Casualty Co. v. Waller, 323 F.2d 20, 28-29 (4th Cir. 1963)).
"While some relationship must exist between the newly alleged matters and the subject of the original action, they need not all arise out of the same transaction." Id. at 474. It is enough that the claims share the same "concern." Id. If the original pleading gave defendants notice that the conduct, transaction, or occurrence is of a continuing nature, defendants should be prepared to defend against all claims arising out of it, whether they arose before or after the original complaint was filed. Wright & Miller, 6A Fed. Prac. & Proc. Civ. 2d § 1508.
A supplemental complaint may similarly add new parties who are connected with the original action. See Griffin v. County School Bd. of Prince Edward County, 377 U.S. 218, 226-227 (1964).
In addition to satisfying the minimal requirement of "some relationship," a supplemental pleading will not be allowed if doing so would be unjust to defendants. In this regard, the standard is the same as the one under Rule 15(a). See Glatt v. Chicago Park Dist., 87 F. 3d 190, 194 (7th Cir. 1996).
II. ANALYSIS
A. Defendants' Motion to Strike The Third Amended Complaint
Defendants argue that the Magistrate Judge granted leave to file an amended complaint only for the purpose of naming additional defendants, whereas plaintiffs filed a Third Amended Complaint that named additional plaintiffs and causes of action. Defendants further argue that if the TAC is striken, this bolsters defendants' opposition to plaintiffs' motion for leave to file a FAC.
Contrary to defendants' argument, in this case, the court's analysis of plaintiffs' motion for leave to file a FAC is not influenced by whether the SAC or TAC is the "operative" complaint. For the reasons discussed below, the court grants plaintiffs' motion. Accordingly, defendants' motion to strike the TAC is denied as moot.
B. Plaintiffs' Motion for Leave to File An Amended and Supplemented Complaint
1. The Magistrate Granted Permission to File This Motion
Ordinarily, once a scheduling order has been issued pursuant to Fed. R. Civ. P. 16(b), that scheduling order will limit the time for amending the pleadings. Faced with such a limit, a party seeking leave to amend or supplement a pleading, under Fed. R. Civ. P. 15(a)(2), often must first

seek a modification of the scheduling order, under Fed. R. Civ. P. 16(b)(4). AmerisourceBergen Corp. v. Dialysist West, Inc., 465 F.3d 946, 952 (9th Cir. 2006) (citing Johnson v. Mammoth Recreations, Inc., 975 F.2d 604 (9th Cir. 1992)). This rule limits a party's ability to modify pleadings, because while leave to amend pleadings is to be "freely granted," Rule 15(a)(2), modification of a scheduling order requires a showing of "good cause," Rule 16(b)(4).
In this case, the Magistrate Judge's order appointing council for plaintiff vacated the most recent scheduling order. (Order of June 2, 2008). Moreover, the Magistrate's order of December 8, 2008, ordering that "[p]laintiffs shall file their motion for leave [to amend] . . . on or before December 12, 2008,"[1] constituted a modification of any applicable scheduling order. Accordingly, plaintiffs do not now seek modification of a scheduling order, and do not need to meet the "good cause" standard of Rule 16. AmerisourceBergen, 465 F.3d at 952 (when motion to amend complies with scheduling order, Mammoth Recreations does not apply).
2. Plaintiff's Motion to Amend
As discussed above, defendants, as the parties opposing amendment, bear the burden of showing that leave to amend should not be granted. DCD Programs, 833 F.2d at 187. Defendants have argued that amendment would unduly prejudice them, that amendment was unduly delayed, and that amendment would be futile.
i. Prejudice
Plaintiffs seek to add numerous additional plaintiffs, additional claims, and class allegations. If the complaint is amended, defendants will consequently incur the costs of defending against a more complicated suit, including the cost of additional likely discovery, and a potentially delayed ultimate resolution of this suit.
Defending a lawsuit, however, necessarily involves significant costs. These costs are not themselves prejudicial. Instead, cases finding that an amendment would prejudice a party have held that allowing the proposed amendments would impose "additional litigation costs that could have easily been avoided" had the proposed amendments been included in the original pleading. AmerisourceBergen Corp. v. Dialysist West, Inc., 465 F.3d 946, 953 (9th Cir. 2006).
In AmerisourceBergen, plaintiff filed a breach of contract action, alleging that various pharmaceuticals it received were counterfeit. Defendant filed a counterclaim seeking money owed for delivery of another drug, Procit, and plaintiff's response conceded that the Procit was genuine. Id. at 949. After some discovery, defendant moved for summary judgment on the counterclaim. Plaintiff then filed a cross-motion seeking to amend its response, reversing its earlier position and asserting that the Procit was "tainted." The Ninth Circuit upheld the district court's denial of plaintiff's motion for leave to amend. Plaintiff had provided no reason for its reversal or for failing to adopt this position initially. Id. at 953 n.9. Determining whether the Procit was tainted would require additional discovery. Completing this discovery would impose a higher than normal cost on defendants, because the period for discovery was drawing to a close, and defendants would therefore have to "scramble" to complete the discovery in time. This

added cost was prejudicial, it "could easily have been avoided had [plaintiff] pursued its `tainted product' theory in its original complaint or reply." Id. at 953.
In Jackson v. Bank of Hawaii, 903 F.2d 1385 (9th Cir. 1990), the Ninth Circuit also focused on avoidable costs. Borrowers had filed suit against a bank. After significant discovery, they sought to amend their complaint to allege different claims. The Ninth Circuit identified three forms of prejudice that would result from allowing the amendment. Id. at 1387-88. Amendment would nullify some of the discovery that had already been conducted. Amendment would force the bank to re-litigate much of a separate suit brought against the bank by its insurer, which sought a declaratory judgment regarding the insurer's obligation to indemnify the bank. Finally, although plaintiffs offered to pay the bank's discovery costs, amendment would require bank officers to participate in discovery rather than their normal duties. Of these three, the first two were costs that would have been avoided had the added claims been in the original complaint; it is unclear whether the third was also in this category.
Prejudice therefore occurs when amendment would unnecessarily raise costs. It also occurs when amendment would diminish the non-moving party's ability to respond to the amended pleading. Morongo Band of Mission Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir. 1990). In Morongo Band of Mission Indians, a trial date had already been set, and leave to amend was denied because the remaining time was insufficient to prepare an adequate response.
The Seventh Circuit cases cited by defendants share this approach. Ferguson v. Roberts, 11 F.3d 696 (7th Cir. 1993), Johnson v. Methodist Medical Ctr., 10 F.3d 1300, 1304 (7th Cir. 1993). In Ferguson, proposed amendment to the complaint "would undoubtedly require additional discovery for the defendants to rebut," which, "[g]iven the fast-approaching trial date, . . . would prejudice significantly the defendants in their preparation for trial." Ferguson, 11 F.3d at 707 (emphasis added). In Methodist Medical Ctr., defendant Methodist had filed a motion for summary judgment on all claims against it. The plaintiff responded with a motion for leave to file a third amended complaint, which raised substantially different allegations. Methodist Medical Ctr., 10 F.3d at 1302. The Seventh Circuit held that because the defendant was on the verge of removing itself from the action, requiring the defendant to engage in substantial additional discovery and defend against surprising new claims would cause prejudice. Id. at 1304.
In this case, the proposed amendment, if granted, will expand the scope of this litigation. This expansion will increase the costs borne by defendants. Defendants have not argued, however, that adding these allegations at this point will result in greater costs than defendants would have suffered had these allegations appeared in the original complaint. No discovery already conducted in this case will be rendered moot. Bank of Hawaii, 903 F.2d at 1387. Because the Magistrate Judge has already vacated the scheduling order in this case, defendants' discovery will not be hurried or otherwise more expensive than it would have been had the proposed amendments been included in the original complaint. AmerisourceBergen, 465 F.3d at 953. Raising these claims at this point does not otherwise impede defendants' ability to defend against them. Morongo Band of Mission Indians, 893 F.2d at 1079, Ferguson, 11 F.3d at 707. Accordingly, the granting leave to file the proposed amendments would not significantly prejudice defendants.

ii. Undue Delay and Bad Faith
Delay is another, although less compelling, reason for denying leave to amend. See Morongo Band of Mission Indians, 893 F.2d at 1079. If the moving party cannot explain the delay, this indicates that the delay is undue. See Bank of Hawaii, 902 F.2d at 1388 (citing E.E.O.C. v. Boeing Co., 843 F.2d 1213, 1222 (9th Cir. 1988)), Swanson v. U.S. Forest Service, 87 F.3d 339, 345 (9th Cir. 1996).
In this case, plaintiffs offer a straightforward explanation for the delay. For the first three years of this litigation, plaintiff Gilman was proceeding pro se. Counsel was appointed in June of 2008, and counsel has not significantly delayed filing the proposed amendments. Thus, this is not a case where a party that could have reasonably been expected to file the amendments at an earlier point nonetheless chose to sit on its hands.
Defendants also argue that the delay in submitting the FAC was in bad faith. Defendants do not support this argument with any specific allegations or by identifying any inappropriate advantage plaintiffs might seek to gain by filing these amendments or by having delayed in doing so.
iii. Futility
Defendants also argue that leave to amend should be denied because amendment will be futile, inasmuch as plaintiff's motion for class certification should be denied. The court discusses the class certification motion in a separate order. Here, it suffices to note that the proposed amendments include numerous matters distinct from the class allegations. As such, even if the motion for class certification is denied, defendants have not shown how the remaining amendments would be futile.
iii. Scope of Leave to Amend
Finally, defendants confusingly argue that like the Third Amended Complaint, the Fourth Amended Complaint exceeds the scope of the leave to amend. As leave to file the FAC has not yet been granted, it is unclear how defendants can argue that such leave is limited in scope. Moreover, defendants cannot argue that the FAC exceeds the scope of the leave that plaintiffs have requested, because plaintiffs have requested leave to file the attached FAC.
Accordingly, the court grants plaintiff's motion for leave to file an amended complaint.
2. Plaintiffs' Supplemental Complaint
Plaintiffs move for leave to supplement the complaint to include a challenge to Proposition 9's amendment to California Penal Code section 3041.5. This challenge could not have been included in the original complaint, which was filed approximately three years before Proposition 9 was passed, and therefore cannot be added by amendment.

Allowing a supplemental complaint is favored a means to promote judicial economy so long as the supplemental and original claims share the same "concern." Keith v. Volpe, 858 F.2d 467, 474-75 (9th Cir. 1988). Defendants rely on one case in which the Ninth Circuit rejected a Rule 15(d) motion because "[t]he supplemental complaint filed by plaintiffs involved a new and distinct action that should have been the subject of a separate suit." Planned Parenthood v. Neely, 130 F.3d 400, 402 (9th Cir. 1997). The Ninth Circuit rested this conclusion on factors clearly not present here. "[A] final judgment had been rendered in the original action four years prior to plaintiffs' request to supplement their complaint," and the court had not retained jurisdiction. Id. Therefore, supplementing the complaint in Neely "did not serve to promote judicial efficiency, the goal of Rule 15(d)." Id.
In the ordinary case, where the original claim has not yet been decided, allowing a supplemental complaint can promote judicial economy even when the supplemental complaint pertains to events that are not part of the same transaction or occurrence. Keith, 858 F.2d at 474. It is enough for the original and supplemental pleadings to involve the same "concern," for example, "the availability of replacement housing for persons displaced by the Century Freeway." Id. at 474-75. Here, the Second Amended Complaint concerned the diminution of availability of parole for a life prisoner, caused by changes in law policy occurring after plaintiff was convicted. The challenge to Proposition 9 shares the same concern. This common concern is enough, even when the supplement adds "new claims, new parties, and events occurring after the original action." Id. at 475 (citing Griffin v. County School Board, 377 U.S. 218, 226 (1964)).
Because resolution of the added claims will necessarily touch on issues already present in this suit, this court concludes that the supplement furthers the policy of judicial economy embodied in Rule 15(d).
III. CONCLUSION
For the reasons stated above, defendants' motion to strike the Third Amended Complaint is DENIED, and plaintiffs' motion for leave to file a fourth amended/supplemental complaint is GRANTED.
IT IS SO ORDERED.
[1] As noted above, this motion was actually filed on December 15, 2008. The court subsequently granted plaintiffs' unopposed request to extend the time to this day.

 
 Case 2:05-cv-00830-LKK-CKD Document 175 Filed 01/29/09 Page 1 of 17

1 CARTER C. WHITE, CSB # 164149 U.C. Davis Civil Rights Clinic
2 One Shields Avenue, Building TB-30 Davis, CA 95616-8821
3 Telephone: (530) 752-5440 Facsimile: (530) 752-5788
4 ccwhite@ucdavis.edu

5 DANIEL J. BRODERICK, CSB #89424 Federal Defender
6 MONICA KNOX, CSB #84555 DAVID M. PORTER, CSB #127024
7 Assistant Federal Defenders 801 I Street, 3rd Floor
8 Sacramento, CA 95814 Telephone: (916) 498-5700
9 monica_knox@fd.org david_porter@fd.org
10

11 Attorneys for Plaintiffs RICHARD M. GILMAN, et al.
12

13

IN THE UNITED STATES DISTRICT COURT

14

FOR THE EASTERN DISTRICT OF CALIFORNIA

15

16 RICHARD M. GILMAN, JAMES ) No. Civ. S 05-830 LKK GGH

MASONER, RICHARD W. BROWN, )

17 CHRIS FOWLER, EDWARD

)

STEWART, MARIO MARQUEZ, ) [CORRECTED] FOURTH AMENDED/

18 RICHARD LEWIS, and GLORIA ) SUPPLEMENTAL COMPLAINT FOR

OLSON, on their own behalf and on ) DECLARATORY AND INJUNCTIVE

19 behalf of those similarly situated,

) RELIEF – CLASS ACTION

)

20

Plaintiffs,

)

)

21

v.

)

)

22 ARNOLD SCHWARTZENEGGER, )

Governor of California, in his official )

23 capacity; ROBERT DOYLE,

)

Chairman, Board of Parole Hearings, in )

24 his official capacity; All

)

Commissioners of the Board of Parole )

25 Hearings, in their official capacity; All )

Deputy Commissioners of the Board of )

26 Parole Hearings Who Hear Lifer Cases, )

in their official capacity,

)

27

)

Defendants.

)

28 _______________________________ )

Case 2:05-cv-00830-LKK-CKD Document 175 Filed 01/29/09 Page 2 of 17

1

I. INTRODUCTION

2 1. Plaintiffs Richard M. Gilman, James Masoner, Richard W. Brown, Chris Fowler,

3 Edward Stewart, Mario Marquez, Richard Lewis, and Gloria Olson, respectfully submit

4 this Fourth Amended/Supplemental Complaint for Declaratory and Injunctive Relief.

5 Plaintiff Gilman originally filed this action as an individual complaint for Declaratory and

6 Injunctive relief. This Fourth Amended/Supplemental Complaint pleads additional causes

7 of action and allegations supporting a motion for class certification and motion for

8 preliminary injunction.

9 2. Plaintiffs are all California state prisoners convicted of murder and sentenced to

10 prison terms that include the possibility of parole. They are all eligible for parole, and

11 have been denied parole on one or more occasion. Their parole denials have been based

12 substantially on static factors, such as the circumstances of their commitment offenses, or

13 their conduct prior to imprisonment.

14

II. JURISDICTION AND VENUE

15 3. Plaintiffs bring this action to redress the deprivation of rights secured to them by the

16 Due Process Clause and Ex Post Facto Clause of the United States Constitution.

17 4. This Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 1331 and 1343,

18 and 42 U.S.C. § 1983.

19 5. Venue is proper is this judicial district under 28 U.S.C. § 1391 because the

20 defendants are employed in the County of Sacramento, which is in this judicial district.

21

III. THE PARTIES

22 A. Plaintiffs

23 6. Plaintiffs Richard M. Gilman, James Masoner , Richard W. Brown, Chris Fowler,

24 Edward Stewart, Mario Marquez, Richard Lewis, and Gloria Olson, are California state

25 prisoners with convictions for murder and sentences that include the possibility of parole.

26 B. Defendants

27 7. Defendant ARNOLD SCHWARZENEGGER is the Governor of the State of

28 California. He is authorized to affirm, modify, or reverse any decision by the Board

2

Case 2:05-cv-00830-LKK-CKD Document 175 Filed 01/29/09 Page 3 of 17

1 granting or denying parole to a prisoner convicted of murder. He is sued in his official

2 capacity only.

3 8. Defendant ROBERT DOYLE is Chairman of the Board of Parole Hearings. He is

4 sued in his official capacity only.

5 9. The remaining defendants are all the Commissioners of the Board of Parole

6 Hearings, and all Deputy Commissioners of the Board of Parole Hearings who conduct

7 parole consideration hearings for life inmates.

8

IV. FACTS APPLICABLE TO ALL CAUSES OF ACTION

9 10. All California prisoners with life sentences for murder are eligible for parole after

10 serving a minimum number of years, although that minimum number of years varies from

11 seven to twenty-five. Once a life prisoner is eligible for parole, it is up to the Board of

12 Parole Hearings in the first instance and the Governor in the second instance to determine

13 if he is “suitable” for parole. The first hearing to determine suitability occurs a year before

14 eligibility. Cal. Pen. Code § 3041(a). The statute provides that the Board “shall normally

15 set a parole release date” at that first hearing. Id.

16 11. The standard for setting parole release dates is set forth in subsection (b) of section

17 3041 of the California Penal Code:

18

The panel or board shall set a release date unless it determines that the gravity

of the current convicted offense or offenses, or the timing and gravity of

19

current or past convicted offense or offenses, is such that consideration of the

public safety requires a more lengthy period of incarceration for this

20

individual, and that a parole date, therefore, cannot be fixed at this meeting.

21 12. Thus, state law mandates that the prisoner is suitable for parole and must have a

22 release date set unless the evidence shows that his release would be a risk to public safety:

23 that is, he is a current risk to the community. In re Lawrence, 44 Cal.4th 1181 (2008).

24 13. California life prisoners have a liberty interest in parole. That liberty interest is

25 protected by due process. Due process includes the right to a fair hearing, a determination

26 made by an impartial and unbiased decisionmaker, an opportunity to be heard, a statement

27 of reasons to support a denial of parole and to guide the prisoner as to how he can gain

28 parole, and evidence to support the denial of parole. California life prisoners also have the

3

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1 right to be free of any law, regulation, practice or policy that increases punishment from 2 what it was at the time of the commission of their offenses. 3 14. The grant of parole to a California life prisoner is governed by statute and 4 regulation. As noted, the statute creates a presumption of suitability once a prisoner 5 reaches his minimum eligibility date; and it allows for the denial of parole only if release 6 of the prisoner jeopardizes public safety. The Board has established regulatory criteria for 7 guiding its determination of current risk. 15 C.C.R. §§ 2280 et seq., & 2400 et seq. The 8 factors set forth in the regulations, however, are for guidance only; the actual decision of 9 whether the prisoner is suitable for parole must be premised on the sole statutory criterion: 10 whether he is a current risk to public safety. The Governor is bound by the same 11 guidelines and same statutory determination as is the Board. 12 15. For many years, the process of determining suitability for parole for life prisoners 13 was a reasonably fair one, and approximately ten percent of the prisoners who came before 14 the Board each year would be found suitable and given parole dates. In 1990, however, 15 the process became highly politicized, and the number of life prisoners found suitable for 16 parole plummeted, in some years to under one percent. And the few prisoners found 17 suitable for parole would often (in some years, always) have their parole grants reversed 18 by the Governor. The result has been that while the number of life prisoners eligible for 19 parole has grown to more than 10,000, and three to four thousand are considered each year 20 for parole, only a few prisoners ever actually achieve parole. That is in sharp contrast to 21 the statutory presumption that the Board “shall normally” set parole release dates for these 22 prisoners. 23 16. There are several unconstitutional practices and policies that underlie this situation, 24 and these are the bases of Plaintiffs’ claims in this lawsuit. 25 17. Defendants’ policies, practices, conduct, and acts alleged herein have resulted and 26 will continue to result in irreparable injury to Plaintiffs and Plaintiff Class, including but 27 not limited to violations of their constitutional rights. Plaintiffs and Plaintiff Class have 28 no plain, adequate or complete remedy at law to address the wrongs described herein.
4

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1 Defendants will continue to conduct unconstitutional parole consideration hearings unless

2 enjoined by this Court.

3 18. An actual controversy exists between Plaintiffs and Defendants in that Plaintiffs

4 contend that the policies, practices, and conduct of Defendants alleged herein are unlawful

5 and unconstitutional, whereas Plaintiffs are informed and believe that Defendants contend

6 that said policies, practices, and conduct are lawful and constitutional. Plaintiffs seek a

7 declaration of rights with respect to this controversy.

8

V. CLASS ALLEGATIONS

9 19. Plaintiffs bring this action on behalf of themselves and all other persons similarly

10 situated pursuant to Federal Rules of Civil Procedure 23(a) and 23(b)(2). The class, as

11 proposed by Plaintiffs, consists of all California state prisoners who: (1) have been

12 sentenced to a life term that includes the possibility of parole; (2) are eligible for parole;

13 and, (3) have been denied parole on one or more occasions.

14 20. The requirements of Federal Rules of Civil Procedure 23(a) and 23(b)(2) are met

15 because the class is so numerous that joinder of all members is impracticable.

16 21. There are questions of law and fact common to the proposed class that predominate

17 over questions affecting only the individually named Plaintiffs.

18 22. The claims of the named Plaintiffs are typical of the claims of the proposed class.

19 23. The named Plaintiffs will fairly and adequately represent the interests of all

20 members of the proposed class because they seek relief on behalf of the class as a whole

21 and have no interests antagonistic to other members of the class. The named Plaintiffs are

22 represented by counsel from the U.C. Davis Civil Rights Clinic and the Office of the

23 Federal Defender for the Eastern District of California. Counsel for Plaintiffs have

24 extensive experience in civil rights, prisoner rights, and class action litigation. Finally, the

25 Defendants have acted on grounds generally applicable to the class, thereby making

26 appropriate preliminary and final injunctive relief with respect to the class as a whole.

27

28

5

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1 The Named Plaintiffs 2 Mr. Richard M. Gilman 3 24. Plaintiff RICHARD M. GILMAN (CDC # C-47508) was convicted of first degree 4 murder in 1982, and sentenced to 25 years to life. His victim, his former fiancée, died 5 after being assaulted by persons hired by Mr. Gilman. 6 25. Mr. Gilman became eligible for parole in 1995. He has had eight subsequent parole 7 consideration hearings at which parole was denied; his most recent denial was in 2006. 8 The Board relied primarily on the circumstances of the commitment offense and what it 9 perceived to be Mr. Gilman’s limited programming and lack of insight and remorse to 10 deny parole and defer reconsideration for two years. 11 26. Mr. Gilman’s psychological reports evaluate him as a low or relatively low risk to 12 others if granted parole. 13 27. Mr. Gilman has received favorable evaluations of his work in prison and has 14 engaged in numerous rehabilitation efforts, including participation in various self-help and 15 therapy programs. He has never been violent while incarcerated, nor has he ever incurred 16 a CDC 115 (Rule Violation Report). 17 Mr. James Masoner 18 28. Plaintiff JAMES MASONER (CDC # D-76481) was convicted of second degree 19 murder in 1987, and sentenced to 15 years to life. His conviction arose out of a fatal 20 accident he caused when driving while drunk. 21 29. He became eligible for parole in 1997, when parole was denied and reconsideration 22 deferred for three years. All subsequent denials of parole have been with reconsideration 23 deferrals of one year. 24 30. The Board granted Mr. Masoner parole in 2004 and 2007. Both grants were 25 reversed by the governor based on the circumstances of the offense and Mr. Masoner’s 26 purported incomplete acceptance of responsibility. 27 31. Mr. Masoner’s psychiatric reports consistently evaluate him as posing no risk to the 28 public if released on parole as long as he remains sober, which most reports say is not a
6

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1 concern for him. 2 32. Mr. Masoner’s record is replete with evidence of post-conviction rehabilitation, 3 including active and continuous participation in Alcoholics Anonymous since he entered 4 prison, over 20 years ago. 5 Mr. Richard W. Brown 6 33. Plaintiff RICHARD W. BROWN (CDC # C-20036) was convicted of second degree 7 murder in 1980, and sentenced to 15 years to life. He shot and killed the victim after a 8 dispute arising out of a gambling debt. 9 34. He became eligible for parole in 1987. He has been denied parole many times 10 receiving reconsideration deferrals of no more than two years; beginning in 1999, he has 11 received only one-year deferrals. 12 35. The Board granted Mr. Brown parole in 2004 and 2006. These grants were 13 reversed by the governor based on the circumstances of the offense, Mr. Brown’s prior 14 record, and a 20-year-old non-violent disciplinary history. 15 36. Mr. Brown’s psychological reports consistently evaluate him as posing no greater 16 risk than that of the average citizen if released on parole. 17 37. Mr. Brown has participated in substance abuse, anger management and other self18 help and terapeutic programs throughout his incarceration and completed numerous 19 vocational programs. 20 Mr. Chris Fowler 21 38. Plaintiff CHRIS FOWLER (CDC # C-96996) was convicted of second degree 22 murder in 1984, and sentenced to 15 years to life. He struck and killed his then23 girlfriend’s son. 24 39. He became eligible for parole in 1993. He has been denied parole at every hearing 25 but never received a reconsideration deferral of more than two years, and most recent 26 deferrals have been for only one year. In 2007, the parole consideration hearing resulted 27 in a tie vote. The commissioner who voted to deny parole did so due to the commitment 28 offense and what he perceived to be Mr. Fowler’s lack of insight and an insufficient
7

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1 relapse plan. 2 40. Mr. Fowler’s psychological reports consistently state that he presents a low or very 3 low risk to re-offend. 4 41. Mr. Fowler has a significant record of rehabilitation, including an exemplary prison 5 work record and participation in and completion of numerous self-help and substance 6 abuse programs. 7 Mr. Edward Stewart 8 42. Plaintiff EDWARD STEWART (CDC # C-33018) was convicted of second degree 9 murder in 1981, and sentenced to 15 years to life. While drunk, Mr. Stewart shot and 10 killed the victim, whom he believed had assaulted his mother. 11 43. He became eligible for parole in 1989. He has been denied parole many times and 12 never received a reconsideration deferral of more than two years. Beginning in 2000, he 13 has received only one-year reconsideration deferrals. 14 44. The Board granted Mr. Stewart parole in 2002. The governor reversed the grant 15 based on the circumstances of the offense, Mr. Stewart’s prior criminal record, his 16 purported inability to accept responsibility for the crime and a perceived need for more 17 participation in alcohol and drug abuse programs and therapy. 18 45. Since 1994, psychologists have assessed Mr. Stewart’s potential for violence as low 19 or very low if he abstains from alcohol and drugs. 20 46. Mr. Stewart has actively and consistently participated in Alcoholics Anonymous or 21 Narcotics Anonymous throughout his incarceration. He attended anger management 22 classes, completed a vocational program, and engaged in other rehabilitative efforts. 23 Mr. Mario Marquez 24 47. Plaintiff MARIO MARQUEZ (CDC # C-24523) was convicted of second degree 25 murder with use of a knife in 1980 and sentenced to 16 years to life. While drunk, he 26 stabbed and killed his wife following an unsuccessful attempt at reconciliation. 27 48. Mr. Marquez became eligible for parole in 1990. He was found suitable for parole 28 at his initial hearing but for reasons that are not apparent from the record, the 1989 grant
8

Case 2:05-cv-00830-LKK-CKD Document 175 Filed 01/29/09 Page 9 of 17
1 of parole did not result in his release. 2 49. He has never received a reconsideration deferral of more than two years. 3 50. The Board granted Mr. Marquez parole in 1999 and 2002. The 1999 grant was 4 disapproved by the review committee, while the 2002 grant was reversed by the governor, 5 based on the circumstances of the offense and a purported lack of acceptance of full 6 responsibility for the crime. 7 51. Mr. Marquez’s psychological reports consistently evaluate him as posing a low risk 8 of violence if released on parole. 9 52. Mr. Marquez has almost two decades of consistent and full participation in 10 Alcoholics Anonymous and other rehabilitation programs. 11 Mr. Richard Lewis 12 53. Plaintiff RICHARD LEWIS (CDC # C-39447) was convicted of first-degree murder 13 with a firearm enhancement in 1981. Mr. Lewis was sentenced to serve a term of 25 year 14 to life, with two consecutive years for the firearm enhancement. Mr. Lewis shot and killed 15 the victim after learning that he had allegedly made advances toward Mr. Lewis’s then16 girlfriend. 17 54. Mr. Lewis became eligible for parole in 1998. At Mr. Lewis’s first two parole 18 hearings in 1997 and 2001, he was denied parole given four-year and two-year 19 reconsideration deferrals, respectively. 20 55. The Board granted parole in 2004, 2006, and 2008. These grants were reversed by 21 the governor based on the circumstances of the offense and sometimes on Mr. Lewis’ 22 purported minimization of his responsibility for the crime. 23 56. Mr. Lewis has been evaluated by psychologists as posing a low risk of violence if 24 released on parole. 25 57. Mr. Lewis has participated in an array of self-help programs and therapy and 26 completed significant vocational training. 27 Ms. Gloria Olson 28 58. Plaintiff GLORIA OLSON (CDC # W-14430) was convicted of two first degree
9

Case 2:05-cv-00830-LKK-CKD Document 175 Filed 01/29/09 Page 10 of 17

1 murders in 1979, and sentenced to 25 to life for each murder, to be served concurrently.

2 The murders occurred over a year apart, and appear to be unrelated in circumstance, but

3 both related to Ms. Olson’s underlying mental health issues.

4 59. Ms. Olson has gone through several parole hearings. In 2007, she was denied

5 parole. The Board at that time based its deferral on the commitment offense, as well as the

6 need for a new psychological evaluation for specific issues. In January of 2008, the Board

7 granted Ms. Olson parole. The governor reversed, relying primarily on the circumstances

8 of the commitment offenses. He also questioned whether Ms. Olson accepted full

9 responsibility for her role in the murders, and he asserted that Ms. Olson’s versions of

10 events surrounding the offenses has change significantly over the years.

11 60. Ms. Olson’s psychological evaluations indicate that her overall level of risk for

12 future violence in the community is in the low range and that, if released, she would be no

13 more dangerous than the average citizen.

14 61. Ms. Olson has an extensive record of post-conviction rehabilitation, having become

15 a certified paralegal assistant and nursing assistant, as well as completing several

16 vocational training courses in skilled labor. Ms. Olson has participated in Alcoholics

17 Anonymous, Narcotics Anonymous, and several self-help and therapy programs, and has

18 volunteered in outreach programs to abused women.

19

VI. CAUSES OF ACTION

20

FIRST CAUSE OF ACTION

21 62. Plaintiffs reallege and incorporate by reference paragraphs 1 through 61 of this

22 complaint as though fully set forth herein.

23 63. The Board of Parole Hearings and the Governor make parole decisions for life

24 prisoners pursuant to a practice of not seriously considering the prisoner's suitability for

25 parole until he has served an arbitrary number of years that the Board members and/or the

26 Governor believe is sufficient punishment for his offense (“the practice”).

27 64. Defendants have thereby violated the rights of Plaintiffs and Plaintiff Class to due

28 process under the Fourteenth Amendment to the United States Constitution.

10

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1

SECOND CAUSE OF ACTION

2 65. Plaintiffs reallege and incorporate by reference paragraphs 1 through 64 of this

3 complaint as though fully set forth herein.

4 66. The practice has increased the term of imprisonment that applied at the time of the

5 prisoners’ offense, retroactively increasing the punishment for the crime for which they

6 were sentenced in violation of the Ex Post Facto Clause of the United States Constitution.

7

THIRD CAUSE OF ACTION

8 67. Plaintiffs reallege and incorporate by reference paragraphs 1 through 66 of this

9 complaint as though fully set forth herein.

10 68. The practice results in Board members and the Governor applying their own biases

11 as to how many years a life prisoner should serve in custody before he will be paroled, in

12 violation of the Due Process Clause of the Fourteenth Amendment to the United States

13 Constitution.

14

FOURTH CAUSE OF ACTION

15 69. Plaintiffs reallege and incorporate by reference paragraphs 1 through 68 of this

16 complaint as though fully set forth herein.

17 70. The Board and Governor rely on static factors -- primarily the commitment offense

18 and any prior criminal history -- to support the denial of parole despite clear evidence of

19 rehabilitation and thus lack of risk to public safety. This systematic denial of parole

20 violates the Due Process Clause of the Fourteenth Amendment to the United States

21 Constitution.

22

FIFTH CAUSE OF ACTION

23 71. Plaintiffs reallege and incorporate by reference paragraphs 1 through 70 of this

24 complaint as though fully set forth herein.

25 72. The statement of reasons given to defer or deny parole is insufficient because: (1) it

26 does not connect the reasons to risk to public safety; and, (2) it does not provide

27 meaningful guidance to the prisoner about what he must do to obtain parole. The

28 inadequacy of the statement deprives Plaintiffs and Plaintiff Class due process of law.

11

Case 2:05-cv-00830-LKK-CKD Document 175 Filed 01/29/09 Page 12 of 17

1

SIXTH CAUSE OF ACTION

2 73. Plaintiffs reallege and incorporate by reference paragraphs 1 through 72 of this

3 complaint as though fully set forth herein.

4 74. It is common for the Board to make its decision based on practices and biases

5 unrelated to current risk to public safety and then to justify its decision by the use of the

6 regulatory criteria or statements purporting to show insufficient remorse, insight, or

7 acceptance of responsibility.

8 75. The regulations setting forth the criteria to guide the Board’s and the Governor’s

9 discretion in determining suitability are in fact not used to guide discretion but used only

10 to justify the decision arbitrarily made without consideration of the regulatory criteria.

11 76. It is also common for the Board to deny parole based on reasons of insufficient

12 remorse, insufficient insight, or insufficient acceptance of responsibility by pointing to

13 limited items of evidence in the record that are inconsistent with the record as a whole.

14 This is a violation of due process.

15

SEVENTH CAUSE OF ACTION

16 77. Plaintiffs reallege and incorporate by reference paragraphs 1 through 76 of this

17 complaint as though fully set forth herein.

18 78. Defendants have repeatedly deferred parole reconsideration for some Plaintiffs and

19 members of Plaintiff Class for more than one year based on reasons that are not

20 reasonably connected to the length of the deferral, in violation of the right of Plaintiffs and

21 Plaintiff Class to due process.

22

EIGHTH CAUSE OF ACTION

23 79. Plaintiffs reallege and incorporate by reference paragraphs 1 through 78 of this

24 complaint as though fully set forth herein.

25 80. Pursuant to laws in effect when Plaintiffs Gilman, Brown, Stewart, Marquez, Lewis,

26 and Olson committed their offenses, the law provided for only annual reconsideration

27

28

12

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1 hearings absent convictions for multiple murders.1

2 81. Subsequent amendments extended the permissible period of parole deferral, first to

3 two years (by amendment in 1982), and then to five years (by amendment in 1994).

4 82. The Board could order a deferral for more than one year only if it found that it was

5 not reasonable to expect that parole would be granted at a hearing during the intervening

6 period, and it was required to state in writing the bases for such a finding.

7 83. If a Board deferred parole for five years, the prisoner’s central file would be

8 automatically reviewed within three years by a deputy commissioner who could direct that

9 a hearing be held within one year.

10 84. On November 4, 2008, the California electorate passed the Victims’ Bill of Rights

11 Act of 2008, also known as Marsy’s Law, through a ballot initiative designated

12 Proposition 9. Section 5.1 of the proposition amends Section 3041.5 of the California

13 Penal Code in ways that, when applied retroactively, create a significant risk of increasing

14 the measure of punishment attached to the original crime. Specifically, the proposition:

15

(a) Changes the default deferral period between parole hearings from one year to

15 years;

16

(b) Raises the minimum possible deferral period between parole hearings from

17

one year to three years, eliminating all Board discretion to set the deferral

period at one or two years;

18

(c) Increases the possible deferral periods from one, two, three or five years, to

19

three, five, seven, ten or 15 years;

20

(d) Changes the standard for and alters the Board's ability to set the deferral

period from a presumption of minimum deferral period (one year) unless the

21

Board finds “it is not reasonable to expect that parole would be granted at” an

earlier hearing to a presumption of maximum deferral period (15 years),

22

unless the Board finds by clear and convincing evidence “that consideration

of the public’s and victim’s safety does not require a more lengthy period of

23

incarceration for the prisoner” than the next shortest deferral period possible;

and,

24

(e) Changes the process and possibility of an earlier review following imposition

25

of a lengthy deferral period from an automatic review if a five-year deferral

period has been imposed to a review available only if the prisoner makes a

26

27 1 At the time Plaintiffs Masoner and Fowler committed their offenses, the
28 presumption was for annual hearings but for cause and upon specific findings could be extended to two years before reconsideration.

13

Case 2:05-cv-00830-LKK-CKD Document 175 Filed 01/29/09 Page 14 of 17

1

request (which he may do only once every three years) and establishes

changed circumstances or new information.

2

3 85. Proposition 9 thereby violates the Ex Post Facto Clause of the United States

4 Constitution, and denies Plaintiffs and Plaintiff Class due process of law.

5

NINTH CAUSE OF ACTION

6 86. Plaintiffs reallege and incorporate by reference paragraphs 1 through 85 of this

7 complaint as though fully set forth herein.

8 87. Prior to November 1988, Board decisions regarding parole of prisoners convicted of

9 murder were final and not reviewable by the Governor. At that time, the Board found

10 approximately ten percent of life prisoners suitable for parole at their initial suitability

11 hearings and approximately fifteen percent of life prisoners suitable for parole at

12 subsequent hearings. Once found suitable for parole, those prisoners were released on

13 reaching their parole dates without their dates being subject to review or reversal by the

14 Governor.

15 88. In 1988, the California electorate passed Proposition 89, which added Section 8(b)

16 to Article V of the California Constitution. This constitutional provision authorizes the

17 Governor to affirm, modify, or reverse the Board’s parole decisions with respect to

18 prisoners convicted of murder based on the same criteria the Board considers. The stated

19 purpose of Proposition 89 was to grant to the Governor, for the first time, the power to

20 “block” the parole of convicted murders.

21 89. Since the passage of Proposition 89, Section 8(b) of Article V has never been used

22 by any governor to reverse a decision by the Board finding a prisoner unsuitable for

23 parole, but has been used by all governors exclusively to reverse decisions by the Board

24 finding prisoners suitable for parole.

25 90. Plaintiffs MASONER, BROWN, STEWART, MARQUEZ, LEWIS, and OLSON

26 have been found suitable for parole by the Board on at least one occasion. The Board set

27 terms for these plaintiffs, whose time served at that time exceeded the terms set. Had

28 these plaintiffs not been subjected to Article V, Section 8(b) and the Governor’s review,

14

Case 2:05-cv-00830-LKK-CKD Document 175 Filed 01/29/09 Page 15 of 17

1 they would have been released immediately upon the setting of their terms. Accordingly,

2 the application of Article V, Section 8(b) to these plaintiffs has not simply created a

3 significant risk of increasing their punishment but has in fact increased their punishment in

4 violation of the Ex Post Facto Clause of the United States Constitution.

5 91. The practical implementation of Article V, Section 8(b) has been to increase the

6 terms served by parole-eligible prisoners convicted of murder. Prior to the passage of

7 Article V, Section 8(b), the Board was less conservative and granted parole in a

8 significantly higher percentage of cases than it has granted parole since the passage of

9 Proposition 89. Thus, only the cases of the prisoners most obviously suitable for parole

10 are reviewed by the Governor. The Governor’s reversals of the grants of parole in over

11 eighty-five percent of those cases has, at the least, significantly increased the risk of

12 increasing those prisoners’ incarceration in violation of the Ex Post Facto Clause of the

13 United States Constitution.

14

IX. RELIEF SOUGHT

15

WHEREFORE, Plaintiffs and Plaintiff Class seek the following relief:

16

1. A declaration that defendants have denied plaintiffs’ rights under the Due

17 Process Clause and Ex Post Facto Clause of the United States Constitution;

18

2. A declaration that California Penal Code Section 3041, subdivision (b), and

19 15 C.C.R. §§ 2280 and 2401 vest parole-eligible California inmates with a constitutionally

20 protected liberty interest in parole;

21

3. A preliminary and permanent injunction against application to any Plaintiff or

22 member of Plaintiff Class of the provisions of Proposition 9 that amend California Penal

23 Code section 3041.5(b) and increase the deferral of subsequent parole hearings to

24 (presumptively) 15 years;

25

4. A preliminary and permanent injunction requiring the Board to:

26

a. Conduct a new parole consideration hearing for each member of the

27

Plaintiff Class;

28

b. Not rely on static and/or remote factors to deny parole when there is

15

Case 2:05-cv-00830-LKK-CKD Document 175 Filed 01/29/09 Page 16 of 17

1

evidence of sustained rehabilitation;

2

c. Refrain from deferring parole reconsideration for more than one year

3

unless the reasons for a multiple-year deferral are reasonably connected

4

to the length of the deferral and reasonably related to public safety;

5

d. If parole is denied, provide each member of the Plaintiff Class with a

6

statement that could meaningfully serve as a guide for his or her future

7

behavior as it relates to being found suitable for parole;

8

e. Not deny parole to members of the Plaintiff Class absent a

9

preponderance of evidence to support a finding of unsuitability based

10

on current risk to public safety; and,

11

f. Not deny parole to members of the Plaintiff Class based on reasons of

12

insufficient remorse, insufficient insight, or insufficient acceptance of

13

responsibility by pointing to limited items of evidence in the record

14

that are inconsistent with the record as a whole.

15

5. A preliminary and permanent injunction requiring that the Governor’s review

16 of parole decisions be based on the same factors the Board is required to consider, as

17 required by Article V, Section 8(b), of the California Constitution, and Section 3401.2 of

18 the California Penal Code;

19

6. Retain jurisdiction over this case until defendants have fully complied with

20 all orders of this Court, and there is a reasonable assurance that defendants will continue

21 to comply in the future absent continuing jurisdiction;

22

7. Costs and attorneys fees incurred in this action; and

23 / / /

24 / / /

25 / / /

26 / / /

27 / / /

28 / / /

16

Case 2:05-cv-00830-LKK-CKD Document 175 Filed 01/29/09 Page 17 of 17

1

8. Such other and further relief as may be just and proper.

2 Dated: January 28, 2009

3 Respectfully submitted,

4 DANIEL J. BRODERICK Federal Defender
5

6 /s/ Monica Knox MONICA KNOX
7 Assistant Federal Defender

/s/ Carter C. White CARTER C. WHITE Supervising Attorney

8

Attorneys for Plaintiffs

RICHARD M. GILMAN, et al.

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

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28

17

 
 RICHARD M. GILMAN, et al., Plaintiffs, v.
J. DAVIS., et al., Defendants.
No. CIV. S-05-830 LKK/GGH.
United States District Court, E.D. California.
October 15, 2009.
ORDER
LAWRENCE K. KARLTON, Senior Judge.
This case concerns California's procedures and standards for determining whether prisoners are suitable for parole. Defendants move to stay proceedings at the district court level pending interlocutory review of the court's class certification order. The court resolves this motion on the papers and after oral argument. For the reasons stated below, defendants' motion is granted only in part.
I. BACKGROUND
Plaintiffs are eight California prisoners serving life sentences with possible parole. They bring nine claims for relief under 42 U.S.C. § 1983, premised on the Due Process and Ex Post Facto clauses of the United States Constitution. Plaintiffs' first through sixth claims argue that when defendants determine whether a prisoner is suitable for parole, defendants base their decisions on various sub rosa policies that are inconsistent with the requirements of California law, such that the justifications advanced to support individual parole decisions are merely pretext. Plaintiffs' seventh and eighth claims challenge the policies regarding scheduling of parole hearings. Finally, plaintiffs' ninth claim argues that the California constitutional provision granting the governor the power to review parole determinations, as it has been applied, violates the Ex Post Facto Clause of the Federal Constitution.
On March 4, 2009, the court certified a class of California state prisoners who: (i) have been sentenced to a term that includes life; (ii) are serving sentences that include the possibility of parole; (iii) are eligible for parole; and (iv) have been denied parole on one or more occasions. Certification was under Fed. R. Civ. P. 23(b)(2). In the order certifying a class, the court explained that each of plaintiffs' claims challenged an alleged system-wide policy, and that the presence or absence of such a policy presented a question common to the class and for which named plaintiffs' claims were typical. Order of March 4, 2009, Doc. No. 182 at 11, 12 (citing Armstrong v. Davis, 275 F.3d 849, 868 (9th Cir. 2001)).
The Ninth Circuit granted defendants' petition to hear an interlocutory appeal of the class certification order, but has not ordered a stay in this court's proceedings. See Fed. R. Civ. P. 23(f). This court directed the parties to provide further briefing on the effect of this appeal on this

court's jurisdiction and ability to proceed, and in particular on the four other motions currently under submission in this case, a motion for a preliminary injunction, a motion to dismiss, and two motions by two pro se prisoners seeking to intervene. Both parties agree that the interlocutory appeal has not divested the court of jurisdiction or stayed the case, and that the court may rule on the motions for a preliminary injunction and dismissal. Plaintiffs agreed, however, that in light of the appeal, any preliminary injunction should be issued only as to the named plaintiffs, to be expanded to the entire class only if the plaintiffs prevail on the appeal of class certification.
Defendants then filed the instant motion seeking to stay all proceedings pending resolution of the interlocutory appeal. Plaintiffs agree that the motions to intervene should be stayed, because intervention will be unnecessary if class certification is upheld. Plaintiffs otherwise oppose the motion.
II. STANDARD FOR ISSUING A STAY
The court has the inherent power to stay proceedings in cases over which it presides. Rohan ex rel. Gates v. Woodford, 334 F.3d 803, 817 (9th Cir. 2003); Landis v. North American Company, 299 U.S. 248, 254 (1936). In determining whether to issue a stay pending an interlocutory appeal, courts must consider:
(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.
Hilton v. Braunskill, 481 U.S. 770, 776 (1987). In applying these factors, the Ninth Circuit has applied a "sliding scale" to evaluate the first three factors, which is defined by its two extremes. Golden Gate Rest. Ass'n v. City of San Francisco, 512 F.3d 1112, 1116 (9th Cir. 2008). At one end, a party seeking a stay may show either "a strong likelihood of success on the merits" of the appeal together with "the possibility of irreparable injury" in the absence of a stay. Id. (quoting Natural Res. Def. Council, Inc. v. Winter, 502 F.3d 859, 862 (9th Cir. 2007)). At the other end, the moving party may show that "serious legal questions are raised and that the balance of hardships tips sharply in its favor." Id. (quoting Lopez v. Heckler, 713 F.2d 1432, 1435 (9th Cir. 1983)).
The standard substantially overlaps the standard for issuance of a preliminary injunction. Nken v. Holder, 129 S. Ct. 1749, 1761 (2009) (citing Winter v. Natural Res. Def. Council, 555 U.S. ___, ___, 129 S. Ct. 365, 370 (2008)); see also Golden Gate, 512 F.3d at 1115. In the preliminary injunction context, the Supreme Court has recently limited the Ninth Circuit's sliding scale approach, holding that a plaintiff must show that "he is likely to suffer irreparable harm in the absence of preliminary relief" regardless of the likelihood of success on the merits. Winter, 129 S. Ct. at 374, rev'g 502 F.3d 859 (9th Cir. 2007). The Supreme Court's decision in Winter did not limit the use of the sliding scale approach in the stay context, however. The Court has held that the two standards are similar "not because the two are one and the same, but because similar concerns arise whenever a court order may allow or disallow anticipated action before the

legality of that action has been conclusively determined." Nken, 129 S. Ct. at 1761. Thus, Winter did not implicitly abrogate Golden Gate, and Golden Gate remains the controlling authority.
III. ANALYSIS
As explained below, defendants have not satisfied Golden Gate, except as to the motions to intervene. Defendants have raised "serious legal questions," but have not shown likelihood of success on appeal. Defendants have similarly shown a possibility of injury, but not that the balance of hardships tilts in their favor. A minimal showing as to both the merits and irreparable injury is inadequate under Golden Gate. If circumstances change and demonstrate a more concrete and significant likelihood of irreparable injury, defendants may renew their motion.
A. Defendant's Likelihood of Success on The Merits on Appeal
For the reasons stated in the court's order granting class certification, the court remains convinced that class certification is appropriate. The court therefore concludes that defendants have not shown a strong likelihood of success on the merits.
Defendants argue that the court erred in certifying a class on the basis of allegations rather than evidence, and that even if the allegations were supported by evidence, class certification would be inappropriate in this case. As to the former issue, the Supreme Court has explicitly stated that certification on the pleadings is in some cases appropriate. Gen. Tel. Co. of the Southwest v. Falcon, 457 U.S. 147, 160 (1982). Defendants provide no binding authority, in their motion for a stay or in their petition for interlocutory review, indicating that reliance on allegations is improper here. Instead, defendants argue that this issue presents the type of "unsettled and fundamental issue of law relating to class actions, important both to the specific litigation and generally, that is likely to evade end-of-the-case review," for which interlocutory review is appropriate. Chamberlan v. Ford Motor Co., 402 F.3d 952, 959 (9th Cir. 2005). Certification may have raised important and unsettled issues, but this fact does not itself demonstrate that reversal is likely.
As to the latter issue, defendants argue that because parole hearings involve individual determinations, it will be impossible for plaintiffs to show that a class wide policy exists. Ultimately, plaintiffs may fail to produce evidence of such policies. The question of whether such policies exist, however, is itself susceptible to class-wide determination, and is the controlling question in plaintiffs' claims regardless of whether those claims are brought on an individual or a class basis. Armstrong v. Davis, 275 F.3d 849, 868 (9th Cir. 2001). This possibility of ultimate failure on the merits does not indicate that class certification was inappropriate.
In sum, defendants have not shown that they are likely to succeed on the merits of their interlocutory appeal. Defendants have, however raised "serious legal questions," Lopez, 713 F.2d at 1435, a conclusion bolstered by the Ninth Circuit's decision to grant the petition for review.

B. Irreparable Injury
Litigation of this case will consume the parties' and the court's resources, but this does not itself demonstrate that denial of a stay will cause injury. The pertinent issue is the likelihood that denial of a stay will impose an irreparable harm on defendants that would have been avoided had a stay been granted. Defendants have not shown that such harm is likely.
If the Ninth Circuit reverses the certification decision, that reversal will likely moot any proceedings, discovery or order that relied upon class certification. Thus, the costs associated with those proceedings are costs that would have been avoided had the court issued a stay. Any proceedings, discovery, orders, etc. that do not rely upon class certification, however, will not be rendered moot, and a stay would therefore at most delay, rather than avoid, the imposition on defendants of costs related to such non-moot proceedings.
Here, other than the two motions to intervene, defendants have not identified any proceeding that is anticipated in the coming months that would likely be mooted by reversal of class certification. Defendants argue that non-economic injury will result if this court issues orders with "a dramatic effect upon the execution of California state laws and regulations regarding the penal and parole systems" that are later rendered moot. Plaintiffs have requested that the court's order of preliminary injunctive relief, if any, be limited to named class members, and defendants have not identified any other anticipated orders that may affect California laws and regulations. Defendants also argue that "the cost and strategy for discovery and motion-practice to defend this case would be significantly different, depending on whether it is a case with seven or eight plaintiffs, or a class action with up to ten thousand members." Although the court does not require defendants to lay out their entire litigation strategy in order to show entitlement to a stay, on the facts of this case, the court cannot credit defendants' general assertion. Notably, plaintiffs will seek discovery regarding the existence of general policies regardless of whether plaintiffs proceed as individuals or as a class.
Defendants separately argue that proceeding at the district and circuit levels simultaneously places a greater burden on defendants than would litigating at the two levels serially. Litigating all issues at once may require defendants to more heavily staff the case, etc., such that a stay might save the state money even if the stay does not cause any change in the issues that are ultimately litigated. Although this type of harm is plausible, defendants have provided no showing of its potential magnitude.
C. Hardship to the Non-moving Party
The measure of the hardship to the plaintiffs is unclear in this case. The claims in this case are that defendants are using improper procedures and tests in determining whether to grant parole. Plaintiffs complaint does not, however, argue that any particular prisoner should have been released on parole, and no such challenge could be made in this 42 U.S.C. section 1983 action. Nonetheless, plaintiffs' opposition to this motion characterizes the complaint as alleging that defendants are "unconstitutionally denying plaintiffs parole despite clear evidence of rehabilitation and lack of risk to public safety."

In essence, plaintiffs seek an opportunity to demonstrate that they meet the California statute's criteria that mandate release on parole. Delay in this opportunity is undeniably a hardship for plaintiffs. In light of defendant's minimal showing as to hardship to defendants, the courts' resolution of this motion does not require a more thorough evaluation.
D. Public Interest
The public interest does not weigh in favor a stay. Defendants argue that hardship to them is also hardship to the public, but as explained above, defendants have provided little showing of such hardship. Defendants also argue that because plaintiffs seek to thwart two voter approved measures, a stay that "may ensure an accurate and efficient judicial resolution to this case" would further the public interest. Other than to describe the possibility of mootness, defendants have not explained how a stay will improve the "accuracy" of this case's resolution, and defendants have not identified any foreseeable orders that will be rendered moot. It should go without saying that requiring the state to obey the Constitution is in the public interest.
E. Balancing of Factors
Defendants have not shown that they are entitled to a stay under either end of the sliding scale approach, or any point along its continuum. Because defendants have not show a strong likelihood of success on the merits, defendants must show more than a mere possibility of harm. Although defendants have demonstrated a possibility of serious legal questions, defendants have not shown that the balance of hardships tips "sharply" in defendants' favor. Defendants' arguments regarding motions or proceedings that may be rendered moot are too speculative to warrant a stay of any motions other than the pending motions to intervene.
IV. CONCLUSION
For the reasons stated above, the court GRANTS IN PART the motion to stay. The motion is GRANTED as to the pending motions to intervene, Doc. Nos. 200 and 201. In all other respects, the motion to stay is DENIED WITHOUT PREJUDICE. If, as this litigation commences, a party moves for an order whose validity would be implicated by reversal of class certification, defendants may renew their motion. The parties may commence with discovery and other proceedings relevant to the claims of the named plaintiffs. This includes discovery relating to the existence of the broad policies alleged by plaintiffs.
IT IS SO ORDERED.

 
 RICHARD M. GILMAN, et al., Plaintiffs, v.
J. DAVIS., et al., Defendants.
No. CIV. S-05-830 LKK/GGH.
United States District Court, E.D. California.
February 4, 2010.
ORDER
LAWRENCE K. KARLTON, Senior District Judge.
Plaintiffs, a class of California state prisoners currently serving life sentences with possibility of parole, have filed suit against defendants and various persons participating in California's parole hearing process. Plaintiffs challenge various aspects of the system by which defendants determine whether to release prisoners on parole. Defendants move to dismiss two of plaintiffs' claims: plaintiffs' eighth claim, alleging that certain provisions of Proposition 9 passed in 2008 violate the Ex Post Facto and Substantive Due Process clauses; and plaintiffs' ninth claim, alleging that Proposition 89 passed in 1988 violates the Ex Post Facto clause. This order concerns the motion to dismiss only insofar as it pertains to the ninth claim. A separate order, filed concurrently, discusses the motion to dismiss as it applies to the eighth claim. The court decides the issue on the papers and after oral argument. For the reasons stated below, the motion to dismiss is denied as to the ninth claim.
I. BACKGROUND
Prior to November 1988, California's Board of Prison Terms (now the Board of Parole Hearings) made final decisions as to whether prisoners were to be released on parole. Plaintiffs allege that at that time, "the Board found approximately ten percent of life prisoners suitable for parole at their initial parole suitability hearing and approximately fifteen percent of life prisoners suitable for parole at subsequent hearings." Fourth Amended and Supplemental Corrected Complaint ("FAC") ¶ 87. Plaintiffs do not specify whether this fifteen percent figure applies to life prisoners ever found suitable for parole, or prisoners found suitable at each subsequent suitability hearing.
In November of 1988, the California electorate passed Proposition 88, which added Section 8(b) to Article V of the California Constitution. See also Cal. Penal Code §§ 3041.1, 3041.2. This constitutional provision authorizes the Governor to affirm, modify, or reverse the Board's decisions with respect to prisoners convicted of murder. The Governor's decision is to be based on the same criteria considered by the Board, as provided in Cal. Pen. Code § 3041.
Plaintiffs allege that the practical effect of this provision has been to increase the length of confinement for prisoners, thereby violating the Ex Post Facto Clause of the United States Constitution. The Governor's power of review, it is alleged, has routinely been used to reverse

the Board's decisions finding prisoners suitable for parole, but never to reverse a determination that a prisoner was unsuitable for parole. FAC ¶ 89. Plaintiffs allege that this practice directly prolongs imprisonment for the prisoners whose suitability determinations are reversed. This practice has also allegedly caused the Board to adopt a more conservative approach to determining suitability in its own determinations, thereby further indirectly prolonging the imprisonment of prisoners who would have been found suitable for parole by the Board before the Governor's practice influenced the Board's policy.
II. STANDARD FOR A 12(b)(6) MOTION TO DISMISS
A Fed. R. Civ. P. 12(b)(6) motion challenges a complaint's compliance with the pleading requirements provided by the Federal Rules. Under Fed. R. Civ. P. 8(a)(2), a pleading must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." The complaint must give defendant "fair notice of what the claim is and the grounds upon which it rests." Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation and modification omitted). To meet this requirement, the complaint must be supported by factual allegations. Ashcroft v. Iqbal, ___ U.S. ___, 129 S. Ct. 1937, 1950 (2009). "While legal conclusions can provide the framework of a complaint," neither legal conclusions nor conclusory statements are themselves sufficient, and such statements are not entitled to a presumption of truth. Id. at 1949-50. Iqbal and Twombly therefore prescribe a two step process for evaluation of motions to dismiss. The court first identifies the non-conclusory factual allegations, and the court then determines whether these allegations, taken as true and construed in the light most favorable to the plaintiff, "plausibly give rise to an entitlement to relief." Id.; Erickson v. Pardus, 551 U.S. 89 (2007).
"Plausibility," as it is used in Twombly and Iqbal, does not refer to the likelihood that a pleader will succeed in proving the allegations. Instead, it refers to whether the non-conclusory factual allegations, when assumed to be true, "allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S.Ct. at 1949. "The plausibility standard is not akin to a `probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. (quoting Twombly, 550 U.S. at 557). A complaint may fail to show a right to relief either by lacking a cognizable legal theory or by lacking sufficient facts alleged under a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).
III. ANALYSIS
Plaintiffs allege that Proposition 89, adopted in 1988, which provided the Governor with the power to review the Board's parole decisions, violated the Ex Post Facto clause.
The court discusses the cases interpreting the Ex Post Facto clause in greater detail in the concurrently filed order on plaintiff's challenge to Proposition 9. "The controlling inquiry. . . [is] whether retroactive application of the change . . . created `a sufficient risk of increasing the measure of punishment attached to the covered crimes.'" Garner v. Jones, 529 U.S. 244, 250 (2000) (quoting California Dept. of Corrections v. Morales, 514 U.S. 499, 509 (1995)). A

"sufficient" risk is one that is "significant," Garner, 529 U.S. at 255, and not "speculative and attenuated," Morales, 514 U.S. at 509, 514.
Garner held that a law may pose a sufficient risk either "by its own terms" or where "the rule's practical implementation . .. will result in a longer period of incarceration than under the old rule." 529 U.S. at 255. Thus, an Ex Post Facto challenge may either be facial or as applied.
The Ninth Circuit has previously considered and rejected an Ex Post Facto challenge to Article V section 8(b). Johnson v. Gomez, 92 F.3d 964, 968 (9th Cir. 1996). In Gomez, the plaintiff had been found suitable for parole by the Board, but this decision was reversed by the Governor. Id. at 965. The Ninth Circuit held that "the law itself is neutral inasmuch as it gives the governor power to either affirm or reverse [the Board's] granting or denial of parole. Moreover, the governor must use the same criteria as the [Board]." Id. at 967. The court held that the challenged provision was effectively a "procedural" change, which "simply removes final parole decisionmaking authority from the [Board] and places it in the hands of the governor" Id. Even though the governor had reversed the Board's decision in the particular case under consideration, the Ninth Circuit held that it could not conclude that the effect of granting final review to the governor had prolonged plaintiff's sentence. "[B]ecause the [Board's] parole decision is not final until after the expiration of the thirty-day gubernatorial review period" under the system enacted by the amendment, "it cannot be said with certainty that the [Board] would have granted Johnson parole had it possessed the final review authority." Id. The court denied plaintiff's claim on this ground. Id.[1]
Defendants argue that Gomez established that Art. V, § 8(b) was a procedural change, and that procedural changes cannot amount to Ex Post Facto violations. See Mosley v. Oroski, No. C054260, 2007 U.S. Dist. LEXIS 35936 at *19 (N.D. Cal. Apr. 27, 2007) (Henderson, J.) (adopting this view without citation to Morales or Garner). Both Morales and Garner stated that not every procedural change or change in the exercise of discretion would violate the Ex Post Facto clause. For example, Morales held that "changes to the membership of the Board . . . . might create some speculative, attenuated risk of affecting a prisoner's actual term of confinement by making it more difficult for him to make a case for early release, but that fact alone cannot end the matter for Ex Post Facto purposes." 514 U.S. at 508-09. Garner noted that "where parole is concerned discretion, by its very definition, is subject to changes in the manner in which it is informed and exercised," such that the Ex Post Facto clause is not violated when pre-existing discretion is exercised in a new way. 529 U.S. at 253.
Both cases, however, also recognized that such changes could have the effect of retroactively increasing punishment, and neither established a blanket exemption for such changes. Garner held that "[t]he presence of discretion does not displace the protections of the Ex Post Facto Clause." 529 U.S. at 253. Whether any change violates the clause "must be a matter of `degree.'" Morales, 514 U.S. at 509 (quoting Beazell v. Ohio, 269 U.S. 167, 171 (1925)) (emphasis in original). Even a facially neutral procedural change or grant of discretion may be rooted in, and effectuate, legislative disfavor of certain persons. Garner, 529 U.S. at 253.
Garner resolved this issue by providing for both facial and as applied Ex Post Facto challenges. As noted above, Garner held that

When the rule does not by its own terms show a significant risk, the [challenger] must demonstrate, by evidence drawn from the rule's practical implementation by the agency charged with exercising discretion, that its retroactive application will result in a longer period of incarceration than under the earlier rule.
Garner, 529 U.S. at 255. Thus, a court will not enjoin enforcement of a neutral change—such as Art. V, § 8(b)—merely because of the possibility that the change may disadvantage prisoners. However, prisoners may seek to demonstrate that the practical effect of a law is to increase punishment.
Gomez was decided prior to Garner, and Gomez did not specifically use language recognizing a distinction between facial and as applied challenges. The reasoning of the case, however, clearly implicates a facial challenge. The Ninth Circuit based its holding (to the extent that the holding was consistent with Garner) on the law's neutrality; thus, the court reviewed Proposition 89 "by its own terms." 92 F.3d at 967.
Here, plaintiffs specify that they are challenging the law's "practical implementation." For example, plaintiffs concede that the grant of discretion is facially neutral, allowing the Governor to reverse both grants and denials of parole. Plaintiffs argue, however, that over the past two decades, every governor has uniformly exercised this discretion in a one-sided manner. Gomez, interpreted in light of Garner, does not preclude plaintiffs from bringing a challenge of this sort. See, e.g., Seiler v. Brown, 2007 U.S. Dist. LEXIS 66412 (N.D. Cal. Aug. 30, 2007) (Gomez permits an as-applied challenge to Proposition 89, but plaintiffs in that case failed on the merits of such a challenge).
IV. CONCLUSION
For the reasons stated above, defendants' motion to dismiss, Dkt. No. 187, is DENIED as to plaintiffs' ninth claim. As explained in the court's concurrently-filed order, defendants' motion to dismiss is GRANTED IN PART as to plaintiffs' eighth claim, which challenges Proposition 9 of 2008.
IT IS SO ORDERED.
[1] Gomez went on to note that in order to show an Ex Post Facto violation, the plaintiff would have to show with "assurance" or "certainty" that retroactive application of the challenged law would result "in an actual increase in punishment." Id. at 968. Similarly, the court noted that in a prior Ninth Circuit case finding that a change in an Oregon law relating to parolees' release dates violated the Ex Post Facto clause as applied to a specific class of prisoners, "the sentence increase for [that] certain class of prisoners was a mathematical certainty." Id. (citing Nulph v. Faatz, 27 F.3d 451, 456 (9th Cir. 1994) (per curiam)).
Garner was decided after Gomez. Insofar as Gomez held that only a "certainty" of increased punishment violated the Ex Post Facto clause, this holding was overruled by Garner's holding that a "significant risk" of prolonged confinement is prohibited. Seizing on this issue, plaintiffs in another case in this district argued that Gomez is therefore no longer binding. Marquez v. Rawers, No. CV-F-03-6508, 2008 U.S. Dist. LEXIS 20109 (E.D. Cal. Mar. 14, 2008) (Wagner, J.). The court in Marquez rejected this argument, noting that Gomez used these terms after having already concluding that the law's neutrality precluded finding an Ex Post Facto violation. Id. at *23-24. In this case, this court need not express an opinion as to whether Marquez was correctly decided, other than to note that

Marquez did not clearly concern an as-applied challenge to Art. V § 8(b), and that regardless of the standard applied in Gomez, "significant risk," rather than "certainty," is the measure of an Ex Post Facto violation.

 
 690 F.Supp.2d 1105 (2010)
Richard M. GILMAN, et al., Plaintiffs, v.
J. DAVIS, et al., Defendants.
No. CIV. S-05-830 LKK/GGH.
United States District Court, E.D. California.
February 4, 2010.
1108*1108 Carter Capps White, King Hall Civil Rights Clinic, Davis, CA, David M. Porter, Office of the Federal Defender, Sacramento, CA, Monica Knox, Federal Defender's Office, Sacramento, CA, for Plaintiffs.
Terence John Cassidy, Porter Scott, APC, Sacramento, CA, for Defendants.
ORDER
LAWRENCE K. KARLTON, Senior District Judge.
On November 4, 2008, the California electorate passed Proposition 9, the "Victims' Bill of Rights Act of 2008: Marsy's Law." Proposition 9 changed numerous aspects of California's parole system, including the availability and frequency of parole hearings for prisoners not initially found suitable for parole.
Plaintiffs, eight individuals seeking to represent a class of California state prisoners currently serving life sentences with possibility of parole, bring a claim under 42 U.S.C. section 1983 arguing that these changes violate both the Ex Post Facto and Due Process clauses of the United States Constitution. Plaintiffs have also brought eight other claims not at issue in this order.
Plaintiffs move for a preliminary injunction barring enforcement of these changes. 1109*1109 Defendants conversely move to dismiss plaintiffs' challenge to Proposition 9, and by the same motion seek dismissal of plaintiffs' ninth claim, which challenges Article V, Section 8(b) of the California Constitution. The ninth claim and the challenge thereto are the subject of a separate concurrently filed order.
The court resolves these motions on the papers and after oral argument. For the reasons stated herein, the court grants plaintiffs' motion for a preliminary injunction, and grants in part and denies in part defendants' motion to dismiss.
I. BACKGROUND

Proposition 9 changed numerous aspects of the California parole system. Plaintiffs challenge only the changes to the scheduling of parole hearings for prisoners who are not found suitable for parole at their initial hearing. To describe those changes, the court first surveys the California parole system, then discusses the hearing deferral process prior to Proposition 9, and finally describes the new system.
A. California's Process for Parole Determinations
California's parole system is overseen largely by the Board of Parole Hearings. The Board of Parole Hearings was formerly the Board of Prison Terms, and is hereinafter referred to as the Board. The Board has "the power to allow prisoners imprisoned in the state prisons ... to go upon parole outside the prison walls and enclosures." Cal. Pen.Code § 3040. The penal code provides statutory guidance for the exercise of this power, and the Board has enacted regulations further specifying the parole process, pursuant to its authority under California Penal Code § 5076.2.
All prisoners whose sentences include life but do not include "without possibility of parole," become "eligible" for parole after serving a minimum number of years, marked by the arrival of the prisoner's "minimum eligible parole date." Cal.Code Regs. tit. 15 §§ 2000(b)(3), (b)(67). This date is determined by the prisoner's sentence and any credit the prisoner has earned for good conduct. A prisoner with a straight "life" sentence and maximum good conduct credit becomes eligible for parole in seven years. Cal. Pen.Code § 3046(a)(1). Parole eligibility comes later for prisoners whose sentences specify a minimum term, e.g., "15 to life." For prisoners convicted of first or second degree murder prior to 1998, the minimum term is the term of years provided by their sentence—in the example above, fifteen years—reduced by up to one third for good behavior.
Once a prisoner is eligible for parole, the Board convenes a panel to determine whether the prisoner is to be released on parole, and if so, when.[1] The first inquiry is whether the prisoner is "suitable" for release. Cal. Pen.Code § 3041. The panel "shall" find the prisoner suitable for parole, and move on to the next step of setting a release date,
unless it determines that the gravity of the current convicted offense or offenses, or the timing and gravity of current or past convicted offense or offenses, is such that consideration of the public safety requires a more lengthy period of incarceration for this individual, and that a parole date, therefore, cannot be fixed at this meeting.
Id. § 3041(b). In making this determination, "the fundamental consideration in parole decisions is public safety ... [which] 1110*1110 involves an assessment of an inmate's current dangerousness." In re Lawrence, 44 Cal.4th 1181, 1205, 82 Cal.Rptr.3d 169, 190 P.3d 535 (2008) (emphasis in original). The Board has promulgated regulations identifying various criteria that may be considered in determining whether the prisoner poses a risk. These factors include the circumstances, manner and motive of the commitment offense; whether the prisoner has a history of other criminal or violent acts; the prisoner's social history; the prisoner's past and present mental state, including psychological problems, attitude toward the crime and remorse; institutional behavior; the prisoner's understanding and plans for the future; age; and whether imposition of any special conditions may allow a prisoner who would otherwise be a risk to be

safely released. Cal.Code Reg. tit. 15 §§ 2281(b)-(d). The California Supreme Court has upheld these regulations, but it has emphasized that any criterion is legally relevant only insofar as it is evidence in the particular case that the prisoner is a current risk to public safety. Lawrence, 44 Cal.4th at 1205-06, 82 Cal.Rptr.3d 169, 190 P.3d 535. The panel's determination as to whether these factors indicate suitability for parole is an exercise of the panel's judgment and discretion. In re Shaputis, 44 Cal.4th 1241, 1258, 82 Cal.Rptr.3d 213, 190 P.3d 573 (2008) (quoting In re Rosenkrantz, 29 Cal.4th 616, 654, 128 Cal.Rptr.2d 104, 59 P.3d 174 (2002)).[2]
Because suitability is a function of a prisoner's current dangerousness, a finding that the prisoner is unsuitable for parole is not permanent. If the panel determines that the prisoner is presently unsuitable for parole, the panel "defers" the parole hearing until a later date, at which point a panel will determine whether intervening changes have rendered the prisoner suitable. Cal. Pen.Code § 3041.5. The deferral process is discussed in the following sections.
If the panel instead determines that the prisoner is suitable for parole, the next step is to set a date for release. The panel determines the "base term" for the prisoner, which is based on "the gravity of the base offense, taking into account all of the circumstances of the crime." Cal.Code. Regs. tit. 15 § 2282(a). The actual calculation is performed by reference to matrices enumerating base terms for the circumstances of various offenses. Id. §§ 2282-2289. The panel then considers whether a departure from the base term is warranted by any of a number of other factors specifically enumerated by the regulations, such as the prisoner's good behavior. Id. § 2404. If the time already served by the prisoner exceeds the term calculated by this method, the Board tentatively designates the prisoner for release. If not, the board will set a release date for a time after the completion of this term. See In re Jackson, 39 Cal.3d 464, 474 n. 10, 216 Cal.Rptr. 760, 703 P.2d 100 (1985).
This system plainly contemplates that some prisoners will be found suitable for parole prior to the expiration of the term calculated in the second step. However, plaintiffs assert that "Since 1990, ... it is rare for a life prisoner to be found suitable for and granted parole before he is well beyond any punishment term that can be imposed for his offense."[3] Pls.' Mem. 1111*1111 Supp. Mot. Prelim. Inj., 16 n. 11. Defendants have not contested this assertion. Plaintiffs further assert that "All the named plaintiffs are beyond any terms that would be (or have been) set for them and all will be released as soon as parole is granted and the Governor lets the grant stand." Id. The court notes, however, that the class definition is not so limited, and the class potentially includes unnamed class members who have not completed such terms.
After the panel makes a decision as to suitability or unsuitability, the Governor has an opportunity to review and reverse or modify that decision. See Cal. Const. Art. V § 8(b); Cal.Penal Code §§ 3041.1, 3041.2; In re Johnson, 8 Cal.App.4th 618, 10 Cal.Rptr.2d 460 (1992). The governor's review must be based on "the same factors which the parole authority is required to consider." Cal. Const. Art. V § 8(b). If the Governor reverses a grant of parole, the prisoner receives a one-year deferral and is considered again by the Board the following year.
The effect of the Penal Code section 3041 and the implementing regulations is to vest all California prisoners "whose sentences provide for the possibility of parole with a constitutionally protected liberty interest in the receipt of a parole release date." Irons v. Carey, 479 F.3d 658,

662 (9th Cir.2007) (citing Sass v. California Board of Prison Terms, 461 F.3d 1123, 1127 (9th Cir.2006), Biggs v. Terhune, 334 F.3d 910, 914 (9th Cir.2003), and McQuillion v. Duncan, 306 F.3d 895, 901-901 (9th Cir.2002)). Notwithstanding the fact that class members were sentenced to life terms, the statute operates to create a protected expectation in release on parole for prisoners who match the criteria.
B. The Deferral Process Prior to Proposition 9[4]
Prior to the amendments provided by Proposition 9, when a panel determined that a prisoner was unsuitable for parole, the length of deferral was determined by California Penal Code section 3041.5(b)(2) (2008). This section provided that when the Board found a prisoner unsuitable for parole,
The board shall hear each case annually thereafter, except the board may schedule the next hearing no later than the following:
(A) Two years after any hearing ... if the board finds that it is not reasonable to expect that parole would be granted at a hearing during the following year ...
(B) Up to five years after any hearing at which parole is denied if the prisoner has been convicted of murder, and the board finds that it is not reasonable to expect that parole would be granted at a hearing during the following years .... If the board defers a hearing five years, the prisoner's central file shall be reviewed by a deputy commissioner within three years at which time the deputy commissioner may direct that a hearing be held within one year.
1112*1112 In determining how long to defer a hearing, and in making suitability determinations at the subsequent hearings, the panel applies the same criteria used for the initial suitability determination. Cal. Pen. Code § 3041.5(b)(2)(A)-(B) (2008), Cal. Code Regs. tit. 15, §§ 2268(b), 2270(d).[5] Thus, the panel evaluates whether the factors informing its assessment of the prisoner's potential threat to public safety are likely to change; if so, when; and whether these changes will be sufficient to render the prisoner suitable for parole.
Plaintiffs provide several statistics illustrating the manner in which this statute was applied. According to the Board, in 2007, 35 percent of prisoners who were denied parole following a hearing were given deferral periods of one year, 32 percent received deferrals of two years, and 33 percent received deferrals of three years or more. In 2008 (through December 10), these percentages were 40, 33, and 27 percent, respectively.[6] Pls.' Mem. Supp. Mot. Prelim. Inj. 14, n. 9.
Once a deferred hearing date had been set, that hearing date could potentially be advanced. If the deferral was for five years, the Board was obliged to review the prisoner's situation at three years to determine whether the hearing should be advanced. Cal. Pen.Code § 3041.5(b)(2)(B). Moreover, a prisoner could separately request an advanced hearing date, although the former statute provided no formal mechanism for such requests. In re Jackson, 39 Cal.3d 464, 475, 216 Cal.Rptr. 760, 703 P.2d 100 (1985); see also Cal. Dep't of Corr. v. Morales, 514 U.S. 499, 512, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995) (relying on this statement in Jackson). The court has no

knowledge of whether, during the history of the prior statute, such a request was ever actually made or granted.
C. The Proposition 9 Amendments to The Deferral Process
Proposition 9 drastically altered the deferral process, replacing former subsection 3041.5(b)(2) with the following, now codified at subsection (b)(3):
The board shall schedule the next hearing, after considering the views and interests of the victim, as follows: (A) Fifteen years after any hearing at which parole is denied, unless the board finds by clear and convincing evidence that the criteria relevant to the setting of parole release dates enumerated in subdivision (a) of Section 3041 are such that consideration of the public and victim's safety does not require a more lengthy period of incarceration for the prisoner than 10 additional years. (B) Ten years after any hearing at which parole is denied, unless the board finds by clear and convincing evidence that ... consideration of the public and victim's safety does not require a more lengthy period of incarceration for the prisoner than seven additional years. (C) Three years, five years, or seven years after any hearing at which parole is denied, because ... consideration of the public and victim's safety requires a more lengthy period of incarceration for the prisoner, but does not require a more lengthy 1113*1113 period of incarceration for the prisoner than seven additional years.
Soon after Proposition 9 was passed, the Board issued an Administrative Directive identifying various effects of the proposition. BPH Administrative Directive No. 08/01, Regulatory Sections Impacted by Proposition 9, December 8, 2008. One such effect, which was repeatedly stated in the directive, was that the Board now had "no discretion to set a denial period for any term other than those enumerated," i.e., for a period other than "15, 10, 7, 5, or 3 years." Id.
The amended statute provides two ways in which a deferred hearing date may be changed once it has been set. First, the Board
may in its discretion, after considering the views and interests of the victim, advance a hearing set pursuant to paragraph (3) to an earlier date, when a change in circumstances or new information establishes a reasonable likelihood that consideration of the public and victim's safety does not require the additional period of incarceration of the prisoner provided in paragraph (3).
Cal. Pen.Code § 3041.5(b)(4). Second, an inmate may request that the board advance the hearing. Id. § 3041.5(d). Such a request must "set forth the change in circumstances or new information" required by subsection (b)(4). Id. § 3041.5(d) (1). The statute limits when a prisoner may make such a request:
An inmate may make only one written request as provided in paragraph (1) during each threeyear period. Following either a summary denial of a request made pursuant to paragraph (1), or the decision of the board after a hearing described in subdivision (a)[7] to not set a parole date,

the inmate shall not be entitled to submit another request for a hearing pursuant to subdivision (a) until a three-year period of time has elapsed from the summary denial or decision of the board.
Id. § 3041.5(d)(3). After the court held oral argument on the motion for a preliminary injunction, the Board promulgated a second administrative directive, which interpreted this language as imposing a three-year delay only once the prisoner has filed a request for an advanced hearing, such that a prisoner need not wait three years before filing an initial request for an advanced hearing. BPH Administrative Directive No. 09/01, "Penal Code Statutes Enacted by Proposition 9 That Allow An Advanced Hearing Date," February 5, 2009. Plaintiffs do not challenge this interpretation in this motion.[8]
This second directive also states that pursuant to section 3041.5(b)(4), when the Board advances a hearing date, there is not "a minimum time period that must be served from the hearing at which the denial length was determined." Thus, the Board contends that when a hearing date is advanced, whether on the Board's initiative under (b)(4) or on a prisoner's request under (d), the Board is not limited to the time periods specified for deferral of the hearing.
1114*1114 D. Alleged Punitive Purpose of Proposition 9
As part of their argument that Proposition 9 violates the Ex Post Facto Clause, plaintiffs also allege that Proposition 9 has a demonstrably punitive purpose. Plaintiffs offer the following evidence in support of this argument. Section 2 of the Act, the Findings and Recommendations, stated that "Crime victims are entitled to ... above all, the right to an expeditious and just punishment of the criminal wrongdoer." ¶ 1. These findings further state that the prior system created a "failure to impose actual and just punishment upon [victims'] wrongdoers." Id. at ¶ 9.
Section 3 of the Act, the "statement of purposes and intent," provides that
It is the purpose of the People of the State of California in enacting this initiative measure to: 1. Provide victims with rights to justice and due process. 2. Invoke the rights of families of homicide victims to be spared the ordeal of prolonged and unnecessary suffering, and to stop the waste of millions of taxpayer dollars, by eliminating parole hearings in which there is no likelihood a murderer will be paroled, and to provide that a convicted murderer can receive a parole hearing no more frequently than every three years, and can be denied a follow-up parole hearing for as long as 15 years.
E. Procedural History
This suit was initially filed by plaintiff Richard Gilman on April 7, 2005. At the time, Gilman was proceeding pro se. As his claim was about to proceed to trial in June of 2008, the Magistrate Judge assigned to this case appointed counsel, and granted leave to file an amended complaint naming additional plaintiffs. After several stipulated extensions, plaintiffs moved for leave to file a fourth amended and supplemented complaint. Plaintiffs concurrently filed a motion for class certification and the instant motion for a preliminary injunction. The court heard argument on these motions on January 30, 2009. The court granted the motion to amend and the motion for

class certification. Order Granting Leave to Amend (Dkt. No. 183), 2009 WL 577768, 2009 U.S. Dist. LEXIS 21609 (E.D.Cal. March 4, 2009); Order Granting Class Certification (Dkt. No. 182), 2009 WL 577767, 2009 U.S. Dist. LEXIS 21614 (E.D.Cal. March 4, 2009).
Defendants then filed a petition to appeal this court's class certification order under Fed.R.Civ.P. 23(f), and concurrently moved to dismiss plaintiffs' eighth claim (challenging Prop. 9) and plaintiffs' ninth claim (challenging Article V, section 8(b) of the California Constitution). The court heard argument on the motion to dismiss on May 18, 2009. The Ninth Circuit granted permission to appeal class certification on May 28, 2009.
On August 11, 2009, the court ordered the parties to provide supplemental briefing addressing the appeal's effect on the pending motions. Both parties agreed that the court could continue to entertain the motions, but plaintiffs conceded that if a preliminary injunction is granted, it should extend solely to the named plaintiffs. See Plaintiffs' Brief Regarding Effect of Interlocutory Appeal, Sept. 1, 2009 (Dkt. No. 207).[9]
1115*1115 Defendants then moved to stay proceedings pending resolution of the interlocutory appeal. The court denied this motion on October 15, 2009. (Dkt. No. 212), 2009 WL 3365858, 2009 U.S. Dist. LEXIS 101937. The court has not issued any subsequent orders in this case.
II. STANDARDS
A. Standard for a Motion for a Preliminary Injunction
The purpose of the preliminary injunction as provided by Fed.R.Civ.P. 65 is to preserve the relative positions of the parties—the status quo—until a full trial on the merits can be conducted. See University of Texas v. Camenisch, 451 U.S. 390, 395, 101 S.Ct. 1830, 68 L.Ed.2d 175 (1981). The limited record usually available on such motions renders a final decision on the merits inappropriate. See Brown v. Chote, 411 U.S. 452, 456, 93 S.Ct. 1732, 36 L.Ed.2d 420 (1973).
"A plaintiff seeking a preliminary injunction must establish that he is [1] likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest." Am. Trucking Ass'ns v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir.2009) (quoting Winter v. Natural Res. Def. Council, ___ U.S. ___, ___, 129 S.Ct. 365, 374, 172 L.Ed.2d 249 (2008)). In Winter, the Supreme Court raised the bar for establishing irreparable harm from a showing of mere possibility, which had previously applied under the Ninth Circuit's sliding scale approach, to a showing of likelihood of irreparable harm. Winter, ___ U.S. at ___, 129 S.Ct. at 375-76.
B. Standard for a Motion to Dismiss
A Fed.R.Civ.P. 12(b)(6) motion challenges a complaint's compliance with the pleading requirements provided by the Federal Rules. Under Fed.R.Civ.P. 8(a)(2), a pleading must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." The

complaint must give defendant "fair notice of what the claim is and the grounds upon which it rests." Bell Atlantic v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (internal quotation and modification omitted). To meet this requirement, the complaint must be supported by factual allegations. Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1950, 173 L.Ed.2d 868 (2009). "While legal conclusions can provide the framework of a complaint," neither legal conclusions nor conclusory statements are themselves sufficient, and such statements are not entitled to a presumption of truth. Id. at 1949-50. Iqbal and Twombly therefore prescribe a two step process for evaluation of motions to dismiss. The court first identifies the non-conclusory factual allegations, and the court then determines whether these allegations, taken as true and construed in the light most favorable to the plaintiff, "plausibly give rise to an entitlement to relief." Id.; Erickson v. Pardus, 551 U.S. 89, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007).
"Plausibility," as it is used in Twombly and Iqbal, does not refer to the likelihood that a pleader will succeed in proving the allegations. Instead, it refers to whether the non-conclusory factual allegations, when assumed to be true, "allow[] the court to draw the reasonable inference 1116*1116 that the defendant is liable for the misconduct alleged." Iqbal, 129 S.Ct. at 1949. "The plausibility standard is not akin to a `probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955). A complaint may fail to show a right to relief either by lacking a cognizable legal theory or by lacking sufficient facts alleged under a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir.1988).
III. ANALYSIS
Evaluation of both the motion to dismiss and the motion for a preliminary injunction begins with the merits of plaintiffs' claim. As explained below, the court concludes that plaintiffs' due process claim fails, but that plaintiffs have demonstrated a likelihood of success on their Ex Post Facto argument. The court then turns to the remaining preliminary injunction factors, and concludes that an injunction is warranted.
A. Merits
Plaintiffs advance two separate legal theories, arguing that the changes effectuated by Proposition 9 violate both the Ex Post Facto Clause and plaintiffs' substantive due process rights. These theories are closely related: both argue that Proposition 9 will cause some prisoners who have ceased to pose a threat to public safety to remain in prison because the prisoners will be unable to receive a timely suitability hearing. Plaintiffs' Ex Post Facto claim argues that such confinement is more likely after Proposition 9, such that the likely period of incarceration has increased. Plaintiffs' substantive due process claim argues that this confinement is not reasonably related to California's stated purpose for denial of parole, the protection of public safety.
1. Ex Post Facto

Article 1, section 10 of the United States Constitution provides that "No state shall ... pass any ... ex post facto Law." This clause prohibits any law that "makes more burdensome the punishment for a crime after its commission." Beazell v. Ohio, 269 U.S. 167, 169-70, 46 S.Ct. 68, 70 L.Ed. 216 (1925). A law violates this prohibition if it is both retroactive and detrimental. Brown v. Palmateer, 379 F.3d 1089, 1093 (9th Cir.2004) (quoting California Dept. of Corrections v. Morales, 514 U.S. 499, 509, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995), Weaver v. Graham, 450 U.S. 24, 29, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981)). Here, defendants have applied the Proposition 9 amendments retroactively, i.e., to prisoners whose crimes were committed prior to the proposition's passage. Therefore, the only issue is whether the amendments are sufficiently detrimental.
The Supreme Court has twice discussed what it means for a change to be detrimental in the context of Ex Post Facto claims broadly similar to the one here. Garner v. Jones, 529 U.S. 244, 255, 120 S.Ct. 1362, 146 L.Ed.2d 236 (2000), Morales, 514 U.S. 499, 115 S.Ct. 1597. "The controlling inquiry ... [is] whether retroactive application of the change ... created `a sufficient risk of increasing the measure of punishment attached to the covered crimes.'" Garner, 529 U.S. at 250, 120 S.Ct. 1362 (quoting Morales, 514 U.S. at 509, 115 S.Ct. 1597). A "sufficient" risk is one that is "significant," Garner, 529 U.S. at 255, 120 S.Ct. 1362, and not "speculative and attenuated," Morales, 514 U.S. at 509, 514, 115 S.Ct. 1597. Changes must be reviewed "within the whole context of [the state's] parole system." Garner, 529 U.S. at 252, 120 S.Ct. 1362. A rule may pose a sufficient risk either "by its own terms" or where "the rule's practical implementation 1117*1117... will result in a longer period of incarceration than under the old rule." Id. at 255, 120 S.Ct. 1362.
In both cases, the Court "declined to articulate a single `formula'" for determining sufficiency. Morales, 514 U.S. at 509, 115 S.Ct. 1597. Accordingly, I review the Court's application of the above principles in Morales and Garner. I then discuss what further principles may be derived from these illustrations, and then finally compare the facts in those cases with the facts here.
a. Parole Changes in Morales
In Morales a California prisoner brought a habeas corpus petition challenging the 1981 amendments to section 3041.5 of the California Penal Code. Prior to this amendment, all life prisoners whose sentences included possibility of parole received annual parole hearings. The 1981 amendment authorized the Board to defer subsequent suitability hearings for up to three years, but only for prisoners convicted of "more than one offense which involves the taking of a life," and only where the Board found "that it was not reasonable to expect that the parole would be granted at a hearing during the following years and state[d] the bases for the finding." Morales, 514 U.S. at 503, 115 S.Ct. 1597 (quoting Cal. Pen.Code Ann. § 3041.5(b)(1) (West 1982)). The Court held that the risk of prolonged confinement posed by this amendment's terms was not sufficient to violate the Ex Post Facto Clause. Id. at 512, 115 S.Ct. 1597.
The Court provided three reasons for this conclusion. Most importantly, the prisoners whose deferral periods were increased would be unlikely to have been found suitable at an earlier date. Id. The Court noted that in general, prisoners convicted of multiple offenses involving the taking of a life were particularly unlikely to be found suitable for parole. Id. at 511, 115 S.Ct. 1597.

Even among these prisoners, the deferral period would be increased only where the Board had made particular findings that an individual prisoner was unlikely to be found suitable for parole in the deferral period, and the amount of the increase would be specifically tailored to the Board's findings. Id. at 511-12, 115 S.Ct. 1597. Second, if a change in circumstances called into question the Board's projection of the likelihood of a suitability finding, the prisoner could potentially seek to advance his hearing date. Id. at 512, 115 S.Ct. 1597 (quoting In re Jackson, 39 Cal.3d at 474, 216 Cal.Rptr. 760, 703 P.2d 100). Finally, the Court noted that under the California system, a finding of suitability for parole is necessary but not sufficient for release. Id. at 513, 216 Cal.Rptr. 760, 703 P.2d 100. Once a prisoner has been found suitable for parole, the Board must calculate the base term, modify this term, and then set a release date. In cases where the calculated release date would lie in the future, delaying a prisoner's suitability hearing to any point prior to that future date posed a minimal risk of prolonging confinement.
Because the terms of the 1981 amendment increased deferral of subsequent suitability hearings only in cases that would be unlikely to delay any actual finding of suitability, because advanced hearings in light of changed circumstances were available, and because a delay of a finding of suitability might not delay actual release, the Court concluded that "the narrow class of prisoners covered by the amendment cannot reasonably expect that their prospects for early release on parole would be enhanced by the opportunity of annual hearings." Id. at 512, 216 Cal. Rptr. 760, 703 P.2d 100; see also Garner, 529 U.S. at 250-51, 120 S.Ct. 1362 (characterizing Morales as turning on the facts that deferral was increased only when the likelihood of release was low, and that advanced reconsideration was available when circumstances changed).
1118*1118 b. Parole Changes in Garner
The Court considered a similar decrease in the frequency of parole hearings in Garner, 529 U.S. 244, 120 S.Ct. 1362. Garner concerned a challenge under 42 U.S.C. § 1983 to a change in the Georgia Parole Board's regulations. Prior to the change, when a prisoner was initially found unsuitable for parole, the Board was required to conduct a further hearing every three years. Id. at 247, 120 S.Ct. 1362. This regulation was amended to provide for reconsideration "at least every eight years." Id. (quoting the amended rule).
The Court held that two features of the changed regulation, both of which were also present in Morales, precluded a finding that the regulation's terms presented an Ex Post Facto problem. Id. at 254, 120 S.Ct. 1362. The first feature was that the Georgia Parole Board had discretion in setting the length of the deferral period, and that the Board's policy was to impose a lengthened period when it was "not reasonable to expect that parole would be granted in the intervening years." Id. Absent such a finding, the Board would set a hearing at the time provided by the old rule. The second feature was the regulation's explicit provision of "expedited parole reviews in the event of a change in [a prisoner's] circumstance or where the Board receives new information that would warrant a sooner review." Id. The Court illustrated the effect of these qualifications with the particular circumstances of the plaintiff in that case. Id. at 255, 120 S.Ct. 1362. The Georgia Board had deferred the prisoner's next parole suitability hearing for the maximum period of eight years. The prisoner's history—including a prior escape from prison and a subsequent act of murder—made it extraordinarily unlikely that, even if the Board were to conduct a suitability hearing in the intervening time, the prisoner would be found suitable for parole under the

Georgia criteria. However, if a change in circumstance or new information arose which would call the Board's assessment into question, the prisoner could seek earlier review. Id. Based on these provisions, the Court concluded that the regulation did not facially violate the Ex Post Facto Clause. Id. at 256, 120 S.Ct. 1362. The Court left open the possibility that the Board's exercise of the discretion provided by the statute would, in practice, present a significant risk of increased punishment. Id. However, the Court found no evidence to this effect in the record before it.
c. Lessons from Morales and Garner
As illustrated above, Morales and Garner did not attempt to quantify the risk of prolonged incarceration. Instead, each looked to whether prisoners who could expect release (or a significant chance thereof) at one time under the former rule would be released only at a later time under the new rule. In both cases, the Court found that subsequent hearings would be delayed only when there was no appreciable likelihood of an earlier release.
Neither the Supreme Court nor the Ninth Circuit have clearly addressed whether a plaintiff must show that he personally faces a significant risk of prolonged punishment. Garner stated that "[i]n the case before us, [the prisoner] must show that as applied to his own sentence the law created a significant risk of increasing his punishment." 529 U.S. at 255, 120 S.Ct. 1362. The Supreme Court has also held, however, that the significant risk inquiry "looks to the challenged provision, and not to any special circumstances that may mitigate its effect on the particular individual." Weaver v. Graham, 450 U.S. 24, 33, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981), overruled on other grounds by Collins v. Youngblood, 497 U.S. 37, 41, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990) as explained by Morales, 514 U.S. at 506 n. 3, 115 S.Ct. 1597. The Ninth Circuit has held that, 1119*1119 consistent with Garner, "[w]hether an individual can show definitively that he would have received a lesser sentence is not determinative." Himes v. Thompson, 336 F.3d 848, 855 (2003) (citing Miller v. Florida, 482 U.S. 423, 432, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987)).
The Seventh Circuit has confronted this issue, holding that
The proper question to ask, then, is whether the new procedure creates a significant risk of increased punishment for [petitioner] Glascoe. This is not to be confused with the question of whether the new parole practice is harsher for a class of prisoners generally; we must focus on the consequence of the new practice on the sentence of the particular inmate bringing the challenge[.]
Glascoe v. Bezy, 421 F.3d 543, 547-548 (7th Cir.2005) (citing Garner, 529 U.S. at 255, 120 S.Ct. 1362). Glascoe concerned a habeas challenge to revised guidelines used in determining whether to grant parole, rather than a challenge to the timing of parole suitability hearings. Id. at 544. The Seventh Circuit held that Glascoe's "extremely violent crimes and his institutional misconduct" clearly demonstrated that he would have been denied parole under the former guidelines, such that denial of parole pursuant to the new guidelines did not increase his risk of punishment. Id. at 548.

The Seventh Circuit's opinion in Glascoe did not cite the Supreme Court's opinion in Weaver, and it appears that Glascoe cannot be reconciled with Weaver's admonition not look to "special circumstances" that may blunt a law's impact on specific individuals. As recognized by Justice Souter's dissent in Garner, because sentencing "is often a mix of rules and discretion," it can be difficult to determine whether a change has affected the sentence of a particular prisoner. Garner, 529 U.S. at 260 n. 1, 120 S.Ct. 1362 (Souter, J., joined by Stevens and Ginsburg, JJ., dissenting). For this reason, the Court's cases "have traditionally evaluated the effect of [a] change on the class subject to the new rule, rather than focusing solely on the individual challenging the change." Id. (citing Weaver, 450 U.S. at 33, 101 S.Ct. 960). Since Garner, the Ninth Circuit has continued to hold that change may violate the Ex Post Facto Clause when it "disadvantage[s] ... prisoners in general." Brown v. Palmateer, 379 F.3d 1089, 1095 (9th Cir.2004) (citing Nulph v. Faatz, 27 F.3d 451, 456 (9th Cir.1994)) (Ex Post Facto violation may be shown in this way, or by showing that "that it can `be said with assurance' that [a challenger] would have received less severe punishment under the prior scheme."). Accordingly, Garner appears to require evaluation of a change's effects on individuals serving a particular sentence or convicted of a particular offense, but not evaluation of other facts or circumstances specific to individual challengers. Facts other than the specific sentence may be relevant on a class wide basis,[10] as was the case in Morales, where the Court rested its decision in part on the conclusion that the class of individuals affected by the change were those unlikely to be granted parole under the former law. To the extent that Garner discussed the petitioner's specific circumstances, such as his prior escape from prison, this discussion merely illustrated the way in which the Georgia parole board applied its discretion under the revised rule. 529 U.S. at 254-55, 120 S.Ct. 1362.[11]
1120*1120 d. Ex Post Facto Analysis of Proposition 9
As demonstrated above, the Court's decisions in Garner and Morales were informed by the particular features of the laws under consideration. See Morales, 514 U.S. at 509 n. 5, 115 S.Ct. 1597 (explicitly declining to opine on whether alternate changes to the timing of parole hearings could be unconstitutional). Here, plaintiffs argue that the changes effectuated by Proposition 9 present a factually distinct scenario.
One difference between Proposition 9 and the laws at issue in Morales and Garner is the number of distinct changes effectuated by Proposition 9. Both Morales and Garner considered mere extensions of the maximum possible deferral date. Proposition 9(1) increased the minimum deferral, (2) reduced, in various ways, the Board's ability to defer for less than the maximum possible term, and (3) increased the maximum deferral. Although Garner explained that the operation of challenges laws must be analyzed "within the whole context of Georgia's parole system," 529 U.S. at 252, 120 S.Ct. 1362, the court begins by discussing each category of change individually. See also Morales, 514 U.S. at 513, 115 S.Ct. 1597.
I. Increase to the Minimum Deferral Period
Garner and Morales both emphasized that under the new laws, a longer deferral would be imposed only when the parole board had found it unreasonable to expect that parole would be

granted in the interim. Garner, 529 U.S. at 254, 120 S.Ct. 1362, Morales, 514 U.S. at 511-12, 115 S.Ct. 1597. In contrast, Proposition 9 increases the minimum deferral period for all prisoners from one to three years, regardless of the Board's expectation about whether the prisoner may become eligible for parole at an earlier date. See Cal.Penal Code § 3041.5(b) (3)(C), BPH Administrative Directive No. 08/01, Regulatory Sections Impacted by Proposition 9, December 8, 2008. Thus, while the laws reviewed by Garner and Morales provided the relevant parole boards with discretion to impose the pre-amendment deferral period, this discretion is not present under Proposition 9.
Moreover, in this case, the Board's practice prior to Proposition 9 implied that the Board reasonably expected that many prisoners would become suitable, and potentially be released, in one or two years.[12] Defendants do not contest plaintiffs' assertion that unlike in Morales, many, if not most, of the prisoners affected by the challenged provisions have been already served their "base terms" such that, if the prisoners were found suitable for parole, the Board would set a prompt release date. Thus, plaintiffs argue that if these prisoners are not able to demonstrate their suitability for three years, they are exposed to a significant risk of prolonged confinement.
Defendants effectively concede this risk, but argue that the risk is ameliorated by the Board's ability to advance hearing dates in light of changed circumstances or 1121*1121 new information and prisoners' ability to request such advancement. By definition, a deferral is only set when the Board concludes that the prisoner is not presently suitable for parole. Thus, a subsequent hearing will result in the prisoner's release only if some fact changes to render that prisoner suitable.[13] Under the former system, the Board would set a period of less than three years if it thought a change might occur in that time.[14] According to defendants, although the three year minimum prevents the Board from scheduling an earlier hearing based on this possibility, if a change actually occurs, that occurrence will entitle the prisoner to an advanced hearing. Thus, defendants argue that in all the circumstances when a prisoner would actually be released under the former system, the prisoner will also be released under the new system, albeit pursuant to a different procedure.
The possibility of advanced hearings was one of the several factors considered in Garner and Morales. Neither case suggests that advanced hearings are themselves sufficient. Garner, 529 U.S. at 251, 256, 120 S.Ct. 1362 (looking to the sum of the factors considered), Morales, 514 U.S. at 509, 115 S.Ct. 1597. Both Garner and Morales discussed at length that suitability hearings would be deferred only when the prisoner was not expected to become suitable for parole in the interim. Garner, 529 U.S. at 254-55, 120 S.Ct. 1362, Morales, 514 U.S. at 510-12, 115 S.Ct. 1597. Advanced hearings served as a safety valve that allowed review in the event that unexpected changes rendered a prisoner suitable. Thus, neither held that ad-hoc advanced hearings, rather than scheduled hearings, were suitable to ensure release after expected or predictable changes to suitability.
Plaintiffs argue that for expected changes, advanced hearings are an inadequate substitute for scheduled hearings, and plaintiffs' argument suffices to survive a motion to dismiss and to demonstrate a likelihood of success on the merits. At the time these motions were argued, there was no mechanism in place for initiating or accepting petitions to advance a hearing. Once a petition is filed, the Board must receive the view of a homicide victim's next of kin before

deciding whether to grant a request for an advanced hearing. Cal. Pen.Code § 3041.5(d)(2). If the Board decides to advance the hearing, it must calendar it, for a time which provides the victim's family with 45 days notice. Id. § 3041. For all of these reasons, there will necessarily be a delay between any meritorious request for an advanced hearing and the grant of such a hearing, and plaintiffs contend, with some evidence, that this delay will likely exceed a year. See Pls.' Reply to Defs.' Supp. Evid., Dkt. 180, at 5.
When a change in circumstances renders a prisoner suitable for parole, if he is unable to secure an advanced hearing until 1122*1122 after the time at which he would have received a scheduled suitability hearing under the former statute, the prisoner's incarceration will have been prolonged. Because the Board's past practices demonstrate that it expected a significant number of prisoners to become suitable for parole in less than three years, the risk of prolonged incarceration for prisoners who would have received shorter deferral appears significant.
Plaintiffs additionally argue that advanced hearings are inadequate because the amendments do not restrict the Board's discretion to advance hearings, such that the Board may decline to advance a hearing even when a prisoner demonstrates a change in circumstance. Insofar as plaintiffs challenge Proposition 9 on its face, i.e., "by its own terms," I must assume that the Board will exercise a neutral grant of discretion in a manner consistent with the Ex Post Facto Clause. Garner, 529 U.S. at 256, 120 S.Ct. 1362 (Eleventh Circuit wrongly refused to consider Georgia Parole Board's self-imposed limits on exercise of its discretion). Insofar as plaintiffs challenge this aspect of the statute as applied, while plaintiffs have stated a claim, plaintiffs have not provided evidence or argument showing a likelihood of success on this particular issue.
In summary, Proposition 9, unlike the changes considered in Morales and Garner, increases the minimum deferral period. Plaintiffs are likely to succeed in showing that many prisoners who have currently been found unsuitable for parole, including the named plaintiffs here, have a significant chance of becoming suitable in less than three years. Plaintiffs have also made a sufficient showing that many prisoners, including the named plaintiffs, have served their base terms and would be granted immediate release if found suitable for parole. C.f. Morales, 514 U.S. at 513, 115 S.Ct. 1597. Finally, plaintiffs have provided reasons why the possibility of an advanced hearing is an inadequate substitute for a scheduled hearing when the board reasonably expects that a prisoner will become suitable for parole in less than three years. Although Garner and Morales relied on the possibility of advanced hearings as a factor indicating against an Ex Post Facto violation, neither of those cases considered an increase in the minimum deferral, and both cases held that parole systems needed to be evaluated as a whole. Accordingly, this aspect of Garner and Morales should be distinguished. Plaintiffs are likely to succeed in showing that the three year minimum creates a significant risk of increased punishment.
ii. Limits to the Board's Discretion
Aside from raising the minimum deferral period, Proposition 9 limited the Board's ability to impose the minimum period. Under the former rule, the default was the minimum period, and the Board had discretion to impose a longer deferral only when "it [was] not reasonable to expect that parole would be granted at a hearing during the following year[s]." Former Cal. Pen.Code § 3041.5(b)(2)(A)(B). Further, the statute provided that the Board "may" impose a longer deferral

in these circumstances. Id. The Board thus had discretion to impose less than the maximum even when it was not reasonable to expect that parole would be granted sooner. Finally, because the statute was silent as to the standard of proof to be used in forming these "reasonable expectations," the Board had discretion to determine this standard. Shaputis, 44 Cal.4th at 1258, 82 Cal.Rptr.3d 213, 190 P.3d 573.
Proposition 9 restricts the Board's discretion in regard to each of the above matters. The default deferral is now the maximum. Cal. Pen.Code § 3041.5(b)(3)(A). The Board may set a 1123*1123 lesser deferral only where it "finds by clear and convincing evidence that .... consideration of the public and victim's safety does not require a more lengthy period of incarceration." Id. Because consideration of the public safety is the determinant of parole suitability, Proposition 9 allows a deferral for less than the maximum only when clear and convincing evidence indicates that parole will actually be granted at the next hearing. Regardless of whether this "clear and convincing evidence" standard of proof differs from the Board's interpretation of the prior "reasonable expectation" standard, the Board no longer has discretion to schedule an earlier hearing even when it does not expect parole to be granted.[15]
Removing discretion to set earlier hearings, rather than expanding discretion to set deferred hearings, sharply distinguishes this case from Garner and Morales. Both Garner and Morales considered changes that, like California's prior system, granted the Board discretion to postpone hearings when the Board made specific findings that an earlier release was unlikely. Garner, 529 U.S. at 254, 120 S.Ct. 1362 (deferral where "it is not reasonable to expect that parole would be granted during the intervening years"), Morales, 514 U.S. at 507, 511, 115 S.Ct. 1597 ("it is not reasonable to expect that parole would be granted at a hearing during the following years"). When a rule "sufficiently circumscribe[s] official discretion," the rule can violate the Ex Post Facto Clause "even if the change does not automatically lead to a more onerous result than would have occurred under the prior law." Himes, 336 F.3d at 856 (citing Miller, 482 U.S. at 432-33, 107 S.Ct. 2446); see also Lindsey v. Washington, 301 U.S. 397, 401, 57 S.Ct. 797, 81 L.Ed. 1182 (1937). In Miller, the Supreme Court considered a challenge to Florida's sentencing guidelines. 482 U.S. at 425, 107 S.Ct. 2446. The former guidelines provided a presumptive range, although a judge could depart from the range if the he provided clear and convincing reasons for the departure. Id. at 426, 107 S.Ct. 2446. The amended guidelines were similar, but with a higher presumptive range. Id. The challenger was sentenced according to the new presumptive range. Id. at 426-27, 107 S.Ct. 2446. The Court found that the change violated the Ex Post Facto Clause despite the fact that the challenger could have received the same sentence under the former law, because the changes limited the judge's discretion to impose a lower sentence. Id. at 435, 107 S.Ct. 2446.
Here, plaintiffs are likely to succeed in showing that there is a significant chance that some prisoners not presently suitable for parole will become suitable in the fewer than the next fifteen years, but that these prisoners are unable to currently demonstrate by clear and convincing evidence that this change will occur, or when. Moreover, for the reasons stated in the previous section, plaintiffs are likely to succeed in showing that there is a significant risk that forcing these prisoners to demonstrate their changed status through an advanced hearing will result in longer incarceration than would result under the former rule, which would have provided for an

earlier scheduled hearing either because of the Board's exercise of discretion 1124*1124 or because of the prior rule's lower maximum.
iii. Increase in Maximum
As noted above, Proposition 9 increased the maximum deferral period from 5 years to 15 years. Garner and Morales each demonstrated that an increase in the maximum deferral period, standing alone, does not violate the Ex Post Facto Clause. In both cases, however, the increase in the maximum deferral would only affect prisoners who were not likely to receive parole during the length of their deferral. Here, where the increase in the maximum is accompanied by changes that limit the Board's ability to impose less than the maximum, the increase further contributes to the risk of prolonged incarceration. As noted above, Garner held that changes must be reviewed "within the whole context of [the state's] parole system." Garner, 529 U.S. at 252, 120 S.Ct. 1362.[16]
iv. Conclusions Regarding Plaintiffs' Ex Post Facto Challenge
Both Morales and Garner indicated that changes to the timing of parole suitability hearings could violate the Ex Post Facto Clause. Although the Court found no violation in those cases, Proposition 9 is factually distinct in numerous ways. Unlike the laws reviewed in Morales and Garner, Proposition 9 increases the minimum deferral period—here, from one to three years. Proposition 9 further sharply limits the Board's discretion to set deferrals for less than the maximum. Finally, Proposition 9 drastically increases the maximum deferral period. These changes create a risk of prolonged incarceration, and plaintiffs are likely to succeed in showing that this risk is significant despite the possible availability of advanced hearings.
Plaintiffs separately argue that Proposition 9 has an explicitly punitive purpose, independent of its punitive effect. Because the court concludes that plaintiffs have shown a likelihood of success as to punitive effect, and because defendants' motion to dismiss does not address this argument, the court does not further discuss any possible punitive purpose here.
2. Substantive Due Process
Plaintiffs separately argue that Proposition 9's changes to the parole deferral process violate the Substantive Due Process Clause. See, e.g., Lawrence v. Texas, 539 U.S. 558, 571, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003) (discussing the Due Process Clause's substantive protections). The court grants defendants' motion to dismiss as to this claim.
In a substantive due process challenge, the initial inquiry is whether the asserted right is one that is "fundamental." Wash. v. Glucksberg, 521 U.S. 702, 722, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997). Where a sentence includes simply the possibility of parole, the interest in release on parole is not a right inherent in the United 1125*1125 States Constitution. Greenholtz v. Inmates of Neb. Penal & Correctional Complex, 442 U.S. 1, 7, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979).

Plaintiffs concede that no fundamental right is at issue here, and that the amendments therefore need only survive rational basis review. Kelch v. Director, Nevada Department of Prisons, 10 F.3d 684 (9th Cir.1993), cited by plaintiffs, provides a typical formulation of this standard: "Substantive due process requires that government action depriving a person of life, liberty or property have a rational, non-arbitrary connection to a legitimate purpose." Id. at 688. California law grants prisoners a protected, albeit non-fundamental, liberty interest in parole. See, e.g., Sass, 461 F.3d at 1128.
Plaintiffs approach rational basis review by first identifying the government's interest. They first argue that under California Penal Code section 3041, California has declared that the only interest furthered by a denial of parole (once the minimum term is served) is prevention of a prisoner's threat to public safety. Plaintiffs then argue that whenever a prisoner's circumstances change such that he is no longer a threat to public safety, any further incarceration of the prisoner does not further this interest. Pls.' Mem. Supp. Mot. Prelim. Inj. 21. Plaintiffs then reiterate much of their Ex Post Facto argument, arguing that as a result of Proposition 9's increased deferral periods, prisoners whose circumstances have changed will often remain in custody for prolonged periods while waiting for a suitability hearing at which the prisoner may demonstrate this change.
Although plaintiffs accurately characterize section 3041, other Penal Code sections are not so narrow. For example, the California Supreme Court has recognized that one purpose behind the 1982 amendments to section 3041.5 was to save the expense of additional hearings. Jackson, 39 Cal.3d at 473, 216 Cal.Rptr. 760, 703 P.2d 100 (quoting the legislative history of the 1982 amendment). Proposition 9 itself declares that one of its purposes was to save the expense of additional hearings. Proposition 9 § 3(2). Thus, these statutes recognize government interests other than public safety.
At its heart, plaintiffs' argument is that Penal Code section 3041 ties the state's hands, trumping any other statutes purporting to assert other interests. This argument fails, because federal courts lack "the authority to enjoin the administration of, or to declare invalid, state laws on the grounds that they are incompatible with other state laws, much less to rule that state laws are contrary to the state legislature's intent." McQuillion v. Schwarzenegger, 369 F.3d 1091, 1099 (9th Cir.2004). Plaintiffs may abhor a practice that risks prolonging incarceration merely to save the expense of additional hearings. Plaintiffs have not argued, however, that cost is not a legitimate interest justifying such detention.
The state's interest in saving expenses is rationally related to any resulting deprivation of prisoners' interests in parole. The state could rationally conclude that the savings realized from avoiding frequent parole hearings is great enough to offset any added expense incurred by continued incarceration of those few prisoners who would have been found suitable for parole.
B. Likelihood of Irreparable Injury
Even where plaintiffs are likely to succeed on the merits, a preliminary injunction may not issue unless plaintiffs have shown that they are "likely to suffer irreparable harm in the absence of preliminary relief." Winter, ___ U.S. at ___, 129 S.Ct. at 374. Confinement in violation of

plaintiffs' constitutional rights is an irreparable injury. See Nelson v. NASA, 530 1126*1126 F.3d 865, 882 (9th Cir.2008). The issue is whether this irreparable injury "is likely [to occur] in the absence of an injunction." Winter, ___ U.S. at ___, 129 S.Ct. at 375.
Winter differs from this case-and from many other cases seeking injunctive relief—because in Winter, plaintiffs' showing as to the merits had little connection to a likelihood of specific irreparable harm. Winter concerned a claim under the National Environmental Policy Act, 42 U.S.C. § 4321 et seq. ("NEPA"). Plaintiffs challenged the Navy's use of long-range sonar, arguing that the Navy had not adequately studied the sonar's effects on marine mammals. Winter, ___ U.S. at ___, 129 S.Ct. at 371. Because NEPA's requirements are only procedural, NEPA may be violated even when there is not any harm to the environment or other ultimate injury. The Court rested on this distinction to hold that, even assuming that plaintiffs had shown a likelihood of success on the merits of their NEPA claim, plaintiffs must also separately show a likelihood of irreparable harm to the environment. Id. at ___, 129 S.Ct. at 375.
In this case, unlike in Winter, the merits of the claim and the likelihood of irreparable injury overlap in that both consist of potential confinement in violation of the Ex Post Facto Clause. Above, the court concluded that plaintiffs are likely to succeed in showing a "significant risk" of such confinement. Although Winter did not quantify "likely," in the preliminary injunction context, "likely" would appear to require no more than "significant."
The relevant likelihood, however, is not the likelihood of injury absent any adjudication of this case. Instead, the question is whether such injury is likely to occur before final resolution of this matter.
As is already apparent, this case raises complex issues. It would be optimistic to conclude that proceedings before this court will be resolved within another year, and it seems clear that both sides intend to appeal any judgment in the other side's favor.
As to plaintiff Masoner, there is evidence demonstrating likelihood of injury during the pendency of this case.[17] He had routinely received one-year deferrals prior to the passage of Proposition 9, had once been found suitable by the Board only to have the grant of parole reversed by the Governor. At his 2008 hearing, the panel conceded that he was approaching suitability even as it denied parole. Under Proposition 9, he will not receive a scheduled suitability hearing until late 2011. Enjoining the enforcement of Proposition 9 would almost certainly enable Masoner to receive scheduled annual hearings, and he has shown that it is sufficiently likely that he would be released on parole at such a hearing prior to the completion of this suit.
While there is no evidence concerning the remaining plaintiffs, the operative complaint alleges that five of these seven plaintiffs have previously been found suitable for parole only to have this determination reversed by the governor. Each plaintiffs' most recent deferral was for one or two years. Although neither party significantly discussed these allegations in connection with the motion for a preliminary injunction, it does not appear that these allegations are in dispute. I therefore conclude that each of the named plaintiffs 1127*1127 has shown a likelihood of irreparable injury absent a preliminary injunction.[18]

C. Balance of Hardships
The hardships faced by plaintiffs are longer prison terms and violations of their constitutional rights. The hardships faced by the defendant are the cost of administering additional parole hearings. Defendants further argue that a preliminary injunction would impair public safety, causing a hardship to the defendants, who are charged with protecting the public. However, the injunction sought would not cause any prisoner to be released absent a determination that the prisoner was not a threat to public safety and therefore suitable for parole.[19] Balancing the other hardships, the court concludes that notwithstanding the State of California's present budget problems, the balance favors plaintiffs.
Defendants also implicitly rely on a type of psychological injury described by Proposition 9, the "prolonged and unnecessary suffering" parole hearings inflict upon collateral victims of the inmates' offense (i.e., relatives of the decedent). See Proposition 9, § 3(2). Presumably, this language refers to the stress and anguish these persons experience resulting from attendance of parole hearings, or simply from the knowledge that such hearings are being held. The court is not aware of any authority recognizing injury of this type. Even if this type of injury is cognizable and properly considered in the preliminary injunction analysis (which the court does not decide), either under the balancing of hardships or as an aspect of the public interest, the injury is not sufficient to tip the scales against plaintiffs.
D. Public Interest
In this case, both parties invoke lofty public interests. Plaintiffs note the public's interest in upholding the constitution. Defendants argue that the public has an interest in seeing its will enforced. Proposition 9 was enacted through the exercise of California's initiative processes. As I have previously observed, however, that happenstance provides the statute with no special insulation from review for asserted constitutional infirmity. Rather, the Supreme Court has held that "`it is irrelevant that the voters ... enacted [a statute], because the voters may no more violate the Constitution by enacting a ballot measure than a legislative body may do so by enacting legislation.'" Service Employees Int'l Union v. Fair Political Practices Com., 747 F.Supp. 580, 583 (E.D.Cal.1990) (quoting Citizens Against Rent Control v. Berkeley, 454 U.S. 290, 295, 102 S.Ct. 434, 70 L.Ed.2d 492 (1981)).[20]
1128*1128 Defendants cite several cases concerning injunctions that would directly affect, respectively, the public's ability to conduct an upcoming election or to receive electricity. Cardona v. Oakland Unified School Dist., 785 F.Supp. 837, 842 (N.D.Cal.1992), Sierra Club v. Georgia Power Co., 180 F.3d 1309, 1310-11 (11th Cir.1999). Here, an injunction would have no analogous effect on the public. Accordingly, the public interest does not strongly weigh for or against issuance of an injunction.
IV. CONCLUSION
Plaintiffs have shown a likelihood of success on the merits as to their Ex Post Facto challenge to Proposition 9's amendments to California's parole process. Plaintiffs have shown that these

amendments are likely to cause irreparable injury absent a preliminary injunction. These factors, as well as the balance of hardships and the public interest, demonstrate that plaintiffs are entitled to a preliminary injunction barring enforcement of Proposition 9 as to the named plaintiffs.
Plaintiffs have failed to state a claim that Proposition 9 violates the substantive due process clause.
For these reasons, the court ORDERS as follows:
1. Plaintiffs' motion for a preliminary injunction, Dkt. No. 157, is GRANTED as to the named plaintiffs. Defendants and their agents are ENJOINED from enforcing the provisions of Proposition 9 that amend former California Penal Code section 3041.5(b)(2)(A) as to the named plaintiffs. 2. Defendants' motion to strike, Dkt. No. 164, is DENIED. 3. Defendants' motion to dismiss, Dkt. No. 187, is GRANTED IN PART. Plaintiffs' substantive due process challenge to Proposition 9 is DISMISSED WITHOUT PREJUDICE. See Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1108 (9th Cir.2003) (Initial dismissal under Fed.R.Civ.P. 12(b)(6) should ordinarily be without prejudice). Defendants' motion to dismiss is DENIED as to plaintiffs' Ex Post Facto challenge to Proposition 9. As explained in the concurrently filed order, defendant's motion to dismiss is also DENIED as to plaintiffs' ninth claim, challenging Cal. Const. Art. V, § 8(b).
IT IS SO ORDERED.
[1] California Penal Code section 3041(a) provides that this meeting shall occur one year prior to the minimum eligible parole date. Plaintiffs assert that in practice, this initial meeting occurs after the date has passed. Such a delay, if any, is not at issue in the present motion.
[2] Plaintiffs state, without citation to any authority, that the panel's suitability determination is made on a preponderance of the evidence standard. Although it may be that this standard is implicit in the penal code, plaintiffs have not demonstrated that this is so, and no standard of proof appears in either section 3041 or in Lawrence, Shaputis, or Rosenkrantz.
[3] Plaintiffs assert that the function of the second step in the parole process is to ensure that the prisoner serves a sentence long enough to satisfy the punitive purpose of incarceration. Although this is certainly a plausible interpretation, no party has provided authority indicating that this is the intended function of the delayed release dates.
[4] Plaintiffs' motion for a preliminary injunction discusses thirty years of various amendments to the parole hearing process. The present motion seeks to enjoin the amendments caused by Proposition 9, and not any of the prior amendments. Therefore, the history of these amendments is not directly relevant to the present motion. The court describes the law as it existed immediately prior to the passage of Proposition 9.
[5] Prior to Proposition 9, the Board had the power to set regulations specifying the factors to be considered in determining the length of deferral; the Board's regulations specified that these factors were the same as those used in determining suitability. Proposition 9 incorporates these regulations in to the statute itself. Thus, the penal code now specifies that public safety is the determinant of both suitability and the deferral period.
[6] These figures are apparently undisputed.

[7] Subdivision (a) refers to "all hearings for the purpose of reviewing a prisoner's parole suitability." Cal. Pen.Code § 3041.5(a).
[8] In their moving papers (submitted prior to the promulgation of this directive), plaintiffs adopted a contrary interpretation of the statute, interpreting it as obliging prisoners to wait three years after any unsuitability finding before submitting a request for an advanced hearing. Plaintiffs have since responded to the administrative directive by stating that while they suspect that the directive contradicts the clear language of the statute, they do not challenge it in the present motion. Accordingly, the court assumes for purposes of this motion only that the administrative directive is valid and presents a controlling interpretation of the statute.
[9] The court expresses some reservation about limiting the current motion to the named plaintiffs. As explained in the October 15, 2009 denial of defendants' motion for a stay, the court remains convinced that class certification is proper. Moreover, prisoners in various other proceedings are requesting to join in this action, or are being referred thereto. See Motion to Intervene by Michael L. Hughes (Dkt. No. 200); see also Bair v. Warden, Deuel Vacational Inst., No. 2:09-cv-1730, 2009 WL 4572902, 2009 U.S. Dist. LEXIS 111735 (E.D.Cal. Dec. 1, 2009) (ordering parties to show cause as to why pro se prisoner's habeas corpus petition challenging Proposition 9 should not be related to this case). It is also a virtual certainty that the result of this court's grant of a preliminary injunction will be a flood of parallel filings by other prisoners. Nonetheless, the court follows plaintiffs' suggestion to limit discussion to the named plaintiffs.
[10] Here, "class" refers to the class of persons affected by a change, rather than the particular class certified in this case.
[11] If, contrary to the analysis above, plaintiffs were required to show an individualized significant risk of prolonged incarceration for purposes of the merits of the Ex Post Facto challenge, the court would find that such a showing had been made for the reasons underlying the court's irreparable injury analysis.
[12] Plaintiffs note that the Board granted one or two year deferrals to approximately two thirds of prisoners found unsuitable for parole. However, this statistic does not demonstrate that the Board had expected all these prisoners to become suitable within this time. The former statute permitted the Board to impose a longer deferral only prisoners convicted of murder. Even for those prisoners, the Board had discretion to impose a shorter deferral even absent an expectation that the prisoner would become suitable within two years.
[13] Plaintiffs candidly note that a prisoner may be found suitable for a parole at a subsequent hearing even if the circumstances have not changed, because the panel at the subsequent hearing may be constituted of individuals who view the same circumstances differently.
Although there is an undeniable realism to plaintiffs' argument, the argument was foreclosed by Morales. Morales held, for example, that changes in the membership of the state parole board, although they may predictably effect the likelihood of release on parole, would not ordinarily constitute an Ex Post Facto violation. 514 U.S. at 508, 115 S.Ct. 1597. The ordinary, random differences from panel to panel are the type of "speculative, attenuated" risk that does not rise to the level of significance. Id.
[14] In the following section, part III(A)(1)(d)(ii), the court discusses the particular standards of proof used by the Board in making this determination.
[15] The parties have provided little discussion of the effect of the Board's prior discretion to schedule earlier hearings even absent a reasonable expectation that parole would be granted. It appears likely to the court that in many cases, the evidence will not support a prediction one way or the other regarding future suitability for parole. In such a case, the prior system afforded the Board discretion to expect the unexpected and schedule an earlier hearing. Proposition 9 eliminates this discretion, putting the burden of proof on the prisoner to clearly and convincingly predict future suitability.

[16] The court reiterates that it is likely to be hard to predict, from a decade in advance, when many prisoners will become suitable for parole. It may be that a significant number of prisoners become eligible even though their eligibility could not have been clearly and convincingly predicted. This possibility demonstrates the importance of holding periodic suitability hearings regardless of individual predictions. Garner and Morales allowed periodic hearings to be skipped, but both implied that the burden of proof was on the state to provide specific reasons for believing that parole would not be granted at these hearings. Proposition 9, on the other hand, puts the burden of proof on the prisoner. If, as the court expects, it is frequently impossible to make a prediction one way or the other, allocation of the burden of proof is crucial. Proposition 9's shifting of the burden of proof, together with its 15 year default deferral, effectively removes the prior presumption of periodic scheduled hearings.
[17] Defendants move to strike the discussion of these facts included in plaintiffs' memorandum in support of their motion. (Dkt. No. 164.) Because a Fed.R.Civ.P. 12(f) motion to strike may only be brought as to "pleadings," the court construes this motion as an evidentiary objection. Plaintiffs have supplied evidence to support their claims regarding Masoner. For the reasons stated in plaintiffs' opposition to defendants' motion to strike, the motion to strike is denied.
[18] The defendants further argue that injunctive relief is unnecessary because the individuals can file habeas petitions. The court first notes that plaintiffs' claims may be properly brought under 42 U.S.C. section 1983— indeed, Garner concerned an analogous section 1983 Ex Post Facto claim. 529 U.S. at 248, 120 S.Ct. 1362. Moreover, while a habeas corpus petition would provide an alternative means for terminating any unlawful confinement, defendants have provided no indication that habeas petitions would be able to prevent such confinement, and the resulting irreparable injury, from occurring.
[19] It is conceivable that the Board may occasionally err in its suitability determinations. If errors are possible, then an increase in the number of parole hearings (as would result from an injunction) may also increase the likelihood of an error that mistakenly releases a dangerous prisoner. However, this risk is too speculative and slight to weigh into the balance of hardships analysis.
[20] Indeed, it can be argued that the public interest favors an injunction, since "it is `in the public interest to terminate the unconstitutional application' of a statute." Levine v. Fair Political Practices Comm'n, 222 F.Supp.2d 1182, 1191 (E.D.Cal.2002) (Karlton, J.) (quoting Zeller v. The Florida Bar, 909 F.Supp. 1518, 1528 (N.D.Fla. 1995)).

 
 RICHARD M. GILMAN, et al., Plaintiffs, v.
J. DAVIS., et al., Defendants.
No. CIV. S-05-830 LKK/GGH.
United States District Court, E.D. California.
April 7, 2010.
ORDER
LAWRENCE K. KARLTON, District Judge.
On February 4, 2010, this court entered an order enjoining defendants from applying certain provisions of the "Victims' Bill of Rights Act of 2008: Marsy's Law," enacted by the California electorate as Proposition 9 of 2008. Gilman v. Davis, ___ F. Supp. 2d. ___, 2010 WL 519808 (E.D. Cal. Feb. 4, 2010). Although the court had previously granted plaintiffs' motion for class certification, certification is on appeal. As a result, and with the parties' agreement, the motion for a preliminary injunction was evaluated and granted only with regard to the named plaintiffs.
Defendants move to stay this injunction pending an appeal. In addition, numerous individual state prisoners have moved to intervene in this action, seeking to have the injunction extended to them. The court resolves both issues on the papers and after oral argument from the represented parties.
I. Background
The facts underlying "Marsy's Law" are fully set forth in this court's February 4, 2010 order. In summary, when California prisoners have served the portion of their sentence that renders them "eligible" for parole, the California Board of Parole Hearings holds a hearing to determine whether the prisoner is "suitable" for parole. If the prisoner is found unsuitable, the hearing is "deferred" for a number of years. The provisions of Marsy's Law at issue here concern these deferrals. The law amended California Penal Code section 3041.5, extending the minimum and maximum deferral periods, adopting a presumption of maximum rather than minimum deferrals, and codifying, in part, procedures by which a deferred suitability hearing may be "advanced" to a time before its scheduled date.
The challenge to Marsy's Law was added in plaintiffs' Fourth Amended and Supplemented Complaint, which was accepted by the court on March 4, 2009. This complaint names eight plaintiffs. The court concurrently granted plaintiffs' motion for class certification. Defendants petitioned for permission to file an interlocutory appeal of the class certification decision, and the Ninth Circuit agreed to hear this appeal.

Defendants and named plaintiffs have taken the position that until the class certification appeal is resolved, this case should proceed only as to the named plaintiffs. Accordingly, the order granting the preliminary injunction discussed and applied to only the named plaintiffs. Numerous additional prisoners, however, have moved to intervene in this action. Two such motions were filed while the motion for a preliminary injunction was under submission. Motions to Intervene by Michael L. Hughes and Raymond Scott, Filed July 16, 2009 (Dkt. Nos. 200, 201). At defendants' request, and with plaintiffs' counsel's consent, the court stayed the motions to intervene, but otherwise held that a stay was unwarranted. Order of October 15, 2009, 2009 WL 3365858, 2009 U.S. Dist. LEXIS 101937. When the court subsequently granted the motion for a preliminary injunction, the court noted the "virtual certainty that the result of [the] grant . . . will be a flood of parallel filings by other prisoners." Order of February 4, 2010 at 14 n.9. In the two months since that order, ten more prisoners have sought to join or intervene in this action. (Dkt. Nos. 222-25, 227, 233, 241, 244, 251, 253). Defendants and named plaintiffs continue to contend that these motions should be stayed pending resolution of the class certification question.
As to the eight named plaintiffs, five of them are no longer in custody. As summarized by plaintiffs, "Masoner was released by court order; Brown obtained a court order for a new Governor's review and the Governor declined to review the matter, resulting in Brown's release; Lewis and Marquez were released through the parole board grants and Governor decline to reviews; and Stewart died just after the Governor reversed a grant of parole he had achieved."
Of the three named plaintiffs who remain in custody, plaintiff Gilman had a parole hearing in 2009 and received a three-year deferral, which the Board said was the deferral period it would have selected even under the old law. Plaintiffs contend that the injunction therefore will not affect Gilman until, at the earliest, some time after his scheduled 2012 parole hearing. The two remaining named plaintiffs are Olson and Fowler, who have suitability hearing dates presently set for June and July 2010, respectively. If these plaintiffs are denied parole at these hearings, the injunction will determine the procedures used to determine their next deferrals.
II. Stay of The Preliminary Injunction
A. Standard for Issuing a Stay
The court has the inherent power to stay proceedings in cases over which it presides. Rohan ex rel. Gates v. Woodford, 334 F.3d 803, 817 (9th Cir. 2003); Landis v. North American Company, 299 U.S. 248, 254 (1936). In determining whether to issue a stay pending an interlocutory appeal, courts must consider:
(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.
Hilton v. Braunskill, 481 U.S. 770, 776 (1987). In applying these factors, the Ninth Circuit has applied a "sliding scale" to evaluation of the first three factors, which is defined by its two

extremes. Golden Gate Rest. Ass'n v. City of San Francisco, 512 F.3d 1112, 1116 (9th Cir. 2008). At one end, a party seeking a stay may show either "a strong likelihood of success on the merits" of the appeal together with "the possibility of irreparable injury" in the absence of a stay. Id. (quoting Natural Res. Def. Council, Inc. v. Winter, 502 F.3d 859, 862 (9th Cir. 2007)). At the other end, the moving party may show that "serious legal questions are raised and that the balance of hardships tips sharply in its favor." Id. (quoting Lopez v. Heckler, 713 F.2d 1432, 1435 (9th Cir. 1983)).
This standard substantially overlaps the standard for issuance of a preliminary injunction. Nken v. Holder, ___ U.S. ___, ___ 129 S. Ct. 1749, 1761 (2009) (citing Winter v. Natural Res. Def. Council, 555 U.S. ___, ___, 129 S. Ct. 365, 370 (2008)); see also Golden Gate, 512 F.3d at 1115. In the preliminary injunction context, the Supreme Court has recently limited the Ninth Circuit's sliding scale approach, holding that a plaintiff must show that "he is likely to suffer irreparable harm in the absence of preliminary relief" regardless of the likelihood of success on the merits. Winter, 129 S. Ct. at 374, rev'g 502 F.3d 859 (9th Cir. 2007). The Supreme Court's decision in Winter did not limit the use of the sliding scale approach in the stay context, however. The Court has held that the two standards are similar "not because the two are one and the same, but because similar concerns arise whenever a court order may allow or disallow anticipated action before the legality of that action has been conclusively determined." Nken, 129 S. Ct. at 1761. Thus, Winter did not implicitly abrogate Golden Gate, and Golden Gate remains the controlling authority.
B. Analysis of The Motion to Stay The Preliminary Injunction
The court briefly summarizes its conclusions here, explaining their basis below. Defendants have raised "serious legals questions," but that defendants have not shown a likelihood of success on appeal of the injunction as it applies to plaintiffs Olson and Fowler. Plaintiffs apparently concede, however, that plaintiff Gilman can no longer show a likelihood of irreparable injury. This concession indicates that defendants are likely to succeed in showing that the injunction need not extend to Gilman.
As to the remaining factors, defendants have shown a possibility defendants have shown a possibility of injury, but not that the balance of hardships tilts in their favor. A minimal showing as to both the merits and irreparable injury is inadequate under Golden Gate. Accordingly, the court does not stay the injunction as to Olson and Fowler, but the court does stay the injunction as to Gilman.
As to defendants' alternative request for a temporary stay that would allow defendants to request further relief from the Ninth Circuit, defendants have not identified any hardship they will suffer prior to June 2010. Defendants may seek a stay from the Ninth Circuit prior to that time.
1. Defendant's Likelihood of Success on The Merits on Appeal

Defendants' likelihood of success on appeal is obviously tied to the standards that will be used in evaluating the appeal. This court's grant of a preliminary injunction will be reviewed under a two step test. California Pharmacists Assc. v. Maxwell-Jolly, ___ F.3d ___, 2010 WL 715401 *3 (9th Cir. Mar. 3, 2010), Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1157 (9th Cir. 2007). "First, the appellate court must `determine de novo whether the trial court identified the correct legal rule to apply to the relief requested.'" California Pharmacists Assc., ___ F.3d at ___, 2010 WL 715401 at *3 (quoting United States v. Hinkson, 585 F.3d 1247, 1262 (9th Cir. 2009) (en banc)). If this court identified the proper standard, the reviewing court will then determine whether this court's application thereof was "(1) `illogical,' (2) `implausible,' or (3) without `support in inferences that may be drawn from the facts in the record.'" Hinkson, 585 F.3d at 1262 (quoting Anderson v. City of Bessemer, 470 U.S. 564, 577 (1985)).[1]
Defendants agree that this court correctly identified the standard for a preliminary injunction. "A plaintiff seeking a preliminary injunction must establish that he is [1] likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest." Am. Trucking Ass'ns v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009) (quoting Winter, 129 S.Ct. at 374). Defendants base their appeal, and consequently their motion for the stay, on the argument that this court selected the incorrect legal standards regarding the merits of plaintiffs' Ex Post Facto claims, and on the argument that this court's analysis of the four Winter factors was not supported by the record.
a. Legal Standards for Ex Post Facto Claims
A law violates the Ex Post Facto clause when it imposes a "significant" risk of increased punishment. Garner v. Jones, 529 U.S. 244, 255 (2000), see also California Dept. of Corrections v. Morales, 514 U.S. 499, 509 (1995). Defendants argue that this court made two legal errors in interpreting this rule, specifically, that this court adopted too low of a standard of significance and that this court erred in analyzing significance without considering individual prisoners' factual circumstances.
As to the first purported error, defendants contend that as the Ninth Circuit has interpreted Garner and Morales, a risk is not "significant" unless it can be "said with assurance" that a prisoner would have received a lesser punishment under the prior scheme. This "said with assurance" language was first used by the Supreme Court in Dobbert v. Florida, 432 U.S. 282, 294 (1977). The Ninth Circuit quoted Dobbert in Nulph v. Faatz, 27 F.3d 451, 456 (9th Cir. 1994), and then quoted Nulph in Brown v. Palmateer, 379 F.3d 1089, 1095 (9th Cir. 2004). None of these cases adopted the proposition defendants attribute to them. As explained in the order granting a preliminary injunction, both Brown and Nulph held that a law violates the Ex Post Facto clause where "`by its own terms [it] show[s] a significant risk'" such that it creates "a disadvantage that affects prisoners in general." Brown, 379 F.3d at 1095 (quoting Garner, 529 U.S. at 255); see also Order at 25, 2010 WL 519808 at *11. Brown and Nulph used the "said with assurance" language to refer to an alternative method of showing an Ex Post Facto violation: where a law is not generally detrimental, a challenger may attempt to show that it has nonetheless increased his particular punishment. Brown, 379 F.3d at 1095 ("in absence of a disadvantage that affects prisoners in general, an individual will satisfy the detriment

requirement if he shows that it can be said with assurance that he would have received less severe punishment under the prior scheme.") (internal quotations and citations omitted). To the extent that the "said with assurance" standard is higher than the "significant risk" standard as applied by this court, the higher standard applies only in this latter context.
The Brown rule presumably reflects the difficulty in demonstrating an Ex Post Facto violation. See Order at 24, 2010 WL 519808, at *12 (citing Garner, 529 U.S. at 260 n.1 (Souter, J., joined by Stevens and Ginsburg, J.J., dissenting)). A plaintiff may respond to this difficulty by showing an effect on a group or by showing a more drastic effect on a specific individual. This legal analysis will admittedly be reviewed de novo. Defendants nonetheless have not shown that reversal is likely on this ground.
Defendants' second legal argument is closely related. As explained in the preliminary injunction order, "[n]either the Supreme Court nor the Ninth Circuit have clearly addressed whether a plaintiff must show that he personally faces a significant risk of prolonged punishment." Order at 23, 2010 WL 519808, at *10. In light of the above holdings in Brown and Nulph, this court held that the magnitude of risk imposed by a change could be measured by the "change's effects on individuals serving a particular sentence or convicted of a particular offense, but not evaluation of other facts or circumstances specific to individual challengers," declining to follow the Seventh Circuit's contrary decision in Glascoe v. Bezy, 421 F.3d 543, 547-548 (7th Cir. 2005).[2] Order at 24-25, 2010 WL 519808 at *11; see also Weaver v. Graham, 450 U.S. 24, 33 (1981), overruled on other grounds by Collins v. Youngblood, 497 U.S. 37, 41 (1990). Defendants argue that for purposes of the Ex Post Facto merits inquiry the court should have followed Glascoe and looked to individual plaintiffs' factual circumstances.
In light of the uncertainty on this issue, there is some likelihood that the Ninth Circuit will adopt defendants' position. If the court had rested its decision solely on the contrary legal conclusion, this would demonstrate an ultimate likelihood of success on appeal. The court's prior order, however, alternatively considered and applied the rule advocated by defendants and adopted by the Seventh Circuit in Glascoe. Order at 25 n.11. This court's application of the Glascoe rule will be reviewed on an abuse of discretion standard, rather than de novo. Accordingly, the court's remaining analysis in this motion assumes that the Glascoe rule applies.
b. Application of The Correctly-Identified Legal Principles
Defendants contend that this court erred in every aspect of its application of the governing law. Specifically, defendants argue that the facts did not support: (1) a finding of significant risk as to the named plaintiffs as part of the merits of the Ex Post Facto claim, (2) a finding of likely irreparable injury under Winter, (3) the balancing of the hardships, and (4) a finding that the public interest did not weigh against issuance of an injunction. To succeed on the appeal, defendants will need to show that this court's resolution of these issues was clearly erroneous or an abuse of discretion. For the reasons stated in the prior order, defendants are unlikely to show that this court erred in weighing the public interest or in assessing the hardship an injunction would impose upon defendants.

Defendants' argument regarding the assessment of risk to or injury of the named plaintiffs warrants further discussion.[3] Defendants argue that plaintiffs failed to make an individualized showing of risk because plaintiffs only provided evidence regarding named plaintiff Masoner, and thus, that no evidence supports extending the injunction to other plaintiffs. The court previously recognized this difficulty. Order at 41. The court held that it could rely on the apparently undisputed allegations, which included the dates of parole hearings and length of deferrals. Although plaintiffs would have been better served by providing declarations or exhibits to support these allegations, at the preliminary injunction stage facts need not be supported by admissible evidence. Cobell v. Norton, 391 F.3d 251, 261, 364 U.S. App. D.C. 2 (D.C. Cir. 2004), Sierra Club, Lone Star Chapter v. FDIC, 992 F.2d 545, 551 (5th Cir. 1993), see also 11A Wright, Miller and Marcus, Fed. Practice & Procedure Civ. 2d. § 2949 (noting that Fed. R. Civ. P. 65, unlike Fed. R. Civ. P. 56, does not require that the motion be supported by affidavits setting out facts that would be admissible as evidence), South Yuba River Citizens League v. Nat'l Marine Fisheries Serv., 257 F.R.D. 607, 615 (E.D. Cal. 2009).[4] As explained at oral argument, such reliance appears proper where defendants do not suggest that the facts are in dispute and where the evidence necessary to confirm or refute these allegations is firmly within defendants' control.
Moving from the form of the facts to their substance, the parties agree that the issue is the risk of injury to the three named plaintiffs who remain in custody. Because the court assumes for purposes of this motion that an individualized showing is required, the facts pertaining to other plaintiffs are only indirectly relevant. Beginning with named plaintiff Gilman, plaintiffs concede that as of Gilman's 2009 parole hearing (which occurred after the operative complaint was filed), Gilman can no longer show an immediate likelihood of irreparable injury. At the 2009 hearing, the Board denied parole and entered a three year deferral. The Board explained that this deferral was adopted under Marsy's law, but that it would also have entered a three year deferral under the former rule. Plaintiffs concede that in light of this, Marsy's law does not present an immediate risk of prolonging Gilman's incarceration.[5]
Plaintiff Olson has repeatedly received minimum, one year deferrals. She has also previously been found suitable for parole by the Board of Parole Hearings, only to have the Governor reverse her grant of parole. Defendants correctly note that predicting Marsy's Law's requires numerous contingent, "if-then" statements. This observation, however, does not itself defeat a finding of likely irreparable injury.
Olson's next scheduled parole hearing is for June of 2010, roughly three months from now.[6] If Olson is granted parole at that time, no injunction will be necessary to prevent injury to her, and Marsy's law will not have prolonged her confinement.
If she is denied parole at this hearing and the injunction remains in force, it is likely that she will receive a one year deferral, as demonstrated by the recent history of her deferrals. Each one year deferral suggests that the Board found a reasonable chance that Olson would be suitable for parole in one year. Accordingly, relying on the Board's own assessment of Olson, it is likely that Olson will be found unsuitable for parole in 2010, only to then be found suitable for parole in 2011 or 2012.

If, on the other hand, Olson is denied parole in 2010 and the injunction is stayed, it is unlikely that Olson will receive a assumes that in light of plaintiffs' apparent concession the Ninth Circuit may decide to consider these facts in evaluating this court's application of the law to Gilman. further suitability hearing before —, for the reasons stated in the prior order. For the reasons just stated, this delay is likely to increase Olson's confinement.[7]
In light of the history of Olson's parole hearings and the pattern of behavior demonstrated by the Board of Parole Hearings and the Governor's treatment of other named plaintiffs, the court reaffirms that Olson has demonstrated a significant risk (under Garner) and a likelihood (under Winter) that Marsy's law will prolong her confinement. This determination is an exercise of the court's discretion. Defendants have not shown that, on review, they are likely to succeed in demonstrating that this conclusion is "illogical," "implausible," or without "support in inferences that may be drawn from the facts in the record" and therefore an abuse of discretion. Anderson, 470 U.S. at 577, see also Hinkson, 585 F.3d at 1262.
Fowler's history is similar. Fowler became eligible for parole in 1993, and plaintiffs allege that he always received one or two year deferrals, that he had "recently" received only one year deferrals, and that while the Board has never attempted to grant him parole, in 2007 the hearing initially resulted in a split decision, i.e., a situation in which one Board member concluded that parole was proper. In the briefing on this motion, the parties indicate that Fowler's next suitability hearing is set for July of 2010. These facts, like those pertaining to Olson, suffice to show a significant risk that if parole is denied at this hearing, application of Marsy's law would significantly risk prolonging Fowler's confinement.
For these reasons, defendants are not likely to succeed in showing that this court erred in its application of the correct legal principles to the facts of this case insofar as they pertain to plaintiffs Olson and Fowler. Plaintiffs concede, however, that defendants have shown a likelihood of success on the merits as to whether plaintiff Gilman is likely to suffer injury prior to the final resolution of this suit.
2. Remaining Stay Factors
Defendants' arguments regarding the remaining stay factors largely repeat the arguments raised in opposition to the motion for a preliminary injunction. Here, defendants add the argument that the injunction forces defendants to maintain two separate schemes for setting parole hearings and that this results in added unquantified administrative expense. The court agrees that such expense is likely. The court therefore acknowledges this administrative overhead, as well as the cost of holding additional hearings, as an injury to defendants to be considered in the balance of hardships.
In granting the preliminary injunction, the court considered the likelihood that injury would result prior to final judgment in this case. For purposes of the present motion, the question is whether injury will result prior to a decision from the Ninth Circuit.
As this case presently stands, it appears that neither party will be injured prior to the June and July 2010 suitability hearings set for plaintiffs Olson and Fowler. The injunction will not compel

defendants to schedule or conduct any additional hearings prior to that time. Plaintiffs do not contend that they will be injured before then. The parties further implicitly agree that if both Olson and Fowler are paroled at that time, there will be no further likely injury to defendants or named plaintiffs.
The court therefore turns to what injuries and hardships the parties will bear if either Olson or Fowler is denied parole this summer. Neither party has estimated when the Ninth Circuit will resolve the instant appeal. Insofar as defendants bear the burden of showing entitlement to a stay, the court does not assume that the Ninth Circuit will resolve the issue before Olson and Fowler would potentially receive their next deferred hearings under the former rule, i.e., within the year. As such, the court assumes that the injunction, to the extent that it has any effect whatsoever, will cause defendants to schedule and conduct additional parole hearings in 2011. For the reasons stated above, the court concludes that there is a sufficient likelihood that Olson and Fowler would be released at such hearings. Accordingly, the array (if not timing) of hardships here is the same as that considered in the prior order, and the court again concludes that the monetary cost to defendants is outweighed by the plaintiffs' risk of prolonged unjustified incarceration.
Defendants argue that they will suffer additional hardship if the injunction is extended to the entire class, or to individual intervenors. Defendants provide no authority for the proposition that the instant injunction may be stayed because of injuries that might result from some possible, as yet non-existent injunction. The court will consider these arguments if and when it considers broadening the injunction.
As previously acknowledged, this is a complex case in which defendants have raised serious legal questions. Defendants have not, however, shown "a strong likelihood of success on the merits" of their appeal. Golden Gate Rest. Ass'n, 512 F.3d at 1116. Nor have defendants shown that "the balance of hardships tips sharply in [their] favor." Id. In the long term, the injury visited on defendants by the injunction is outweighed by the injury likely to be visited on plaintiffs' by the injunctions' absence. In the short term, defendants do not need a temporary stay from this court, because defendants have not identified any hardship that they will suffer while waiting for the Ninth Circuit to review this court's denial of a stay. Any such temporary stay would inevitably expire prior to Olson's June 2010 parole suitability hearing, and as such, a temporary stay would expire before the injunction visited any injury upon defendants.
III. Motions to Intervene
Defendants separately argue that to motions to intervene and for permissive joinder should be stayed. Plaintiffs state that such a stay is proper pending resolution of the appeal of class certification. For the reasons stated in the Order of October 15, 2009, the court agrees. This stay extends solely to resolution of the appeal of class certification—if this appeal is resolved prior to the appeal of the preliminary injunction, the court will revisit the issue at that time.
IV. Conclusion
For the reasons stated above, the court ORDERS as follows:

1. The order of February 4, 2010, granting a preliminary an injunction (Dkt. No. 217) is STAYED SOLELY AS TO PLAINTIFF GILMAN. The injunction remains in effect as to plaintiffs OLSON and FOWLER. 2. All motions to intervene and/or for permissive joinder are STAYED pending resolution of the appeal of class certification. These include: a. Dkt. No. 222 (Stephen Liebb) b. Dkt. No. 223 (Edward S. Renteria) c. Dkt. No. 224 (David Monroe) d. Dkt. No. 225 (Felix Lucero) e. Dkt. No. 227 (Noel Valdivia, Sr.) f. Dkt. No. 233 (Clement Brown) g. Dkt. No. 241 (Richard Gonzales) h. Dkt. No. 244 (Reginald Cooper) i. Dkt. No. 251 (Kenneth Scott Rodgers) j. Dkt. No. 253 (Keith Augustine)
IT IS SO ORDERED.
[1] The appellate courts have referred to this test as an abuse of discretion standard, explaining that under the first step, "`[a] district court would necessarily abuse its discretion if it based its ruling on an erroneous view of the law . . . .'" Hinkson, 585 F.3d at 1262 (quoting Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405 (1990)). Regardless of the nomenclature, it is clear that the first step is a de novo review.
[2] Although the court held that individual factors need not be considered on the Ex Post Facto merits analysis, the court considered these facts as part of the preliminary injunction irreparable injury analysis. Order at 40-41.
[3] Defendants have not challenged this court's conclusion that a "likelihood" of injury requires no greater probability than a "sufficient risk" of injury. Order at 39-40 (citing Garner, 529 U.S. at 255 and Winter, ___ U.S. at ___, 129 S. Ct. at 375).
[4] At oral argument on this motion, the court reiterated concern over this issue. The court noted that defendants had not challenged the factual allegations regarding the length and dates of the named plaintiffs' referrals, and asked defendants whether there were disputes regarding these facts. Defendants disputed the inferences plaintiffs sought to draw from these facts—i.e., whether plaintiffs were likely to be granted parole soon—but not the underlying objective facts. Defendants' position is unclear, however, because defendants' answer (filed after the injunction was granted) states that a subset of these facts are in dispute.
Also at oral argument, plaintiffs represented that evidence supporting plaintiffs' factual allegations regarding Olson and Fowler had been submitted in connection with defendants' motion to dismiss. The court has not located any such evidence in the record.
[5] Insofar as these facts were not before the court on the initial motion, it is somewhat anomalous to consider them now. Neither party has discussed this issue. The court nonetheless
[6] Again, the court notes that the specific date was not before the court on the initial motion. Nonetheless, both parties' briefing refers to this date, and the use of a particular date makes discussion of possible outcomes clearer.

[7] Plaintiffs also argue that Marsy's law may prolong Olson's confinement even if Olson is not granted parole at any such earlier hearings. Plaintiffs assert that the raw number of hearings is a factor in receiving parole separate from any change in circumstance or the passage of years. Thus, plaintiffs assert that even if Olson receives annual hearings but is denied parole at 2010, 2011, and 2012 hearings, depriving her of the 2011 and 2012 hearings will nonetheless risk prolonging her incarceration, because the 2011 and 2012 hearings would make it more likely that she would receive parole in — (the earliest scheduled deferral she could receive under Marsy's law). Unlike plaintiffs' allegations regarding the raw facts of individual plaintiffs' histories, which are easily verified or refuted by defendant, this allegation is not one that the court may credit without any support. The court does not decide whether this allegation, if proven, would support plaintiffs' position.

 
 RICHARD M. GILMAN, et al., Plaintiffs, v.
J. DAVIS., et al., Defendants.
No. CIV. S-05-830 LKK/GGH.
United States District Court, E.D. California.
September 15, 2010.
ORDER
LAWRENCE K. KARLTON, Senior Judge.
The above captioned case is a class action concerning numerous constitutional challenges to California's parole system. The class is defined as California state prisoners who: (i) have been sentenced to a term that includes life; (ii) are serving sentences that include the possibility of parole; (iii) are eligible for parole; and (iv) have been denied parole on one or more occasions. Gilman v. Davis, No. Civ. S-05-0830 LKK GGH, 2009 U.S. Dist. LEXIS 21614 (E.D. Cal. Mar. 4, 2009), aff'd 2010 U.S. App. LEXIS 11319 (9th Cir. June 3, 2010). The plaintiff class is represented by counsel. Plaintiffs seek injunctive and declaratory relief.
Currently before this court are sixteen motions to intervene[1] filed by prisoners proceedings pro se. In essence, these prisoners argue that they should be considered class members. Further, many request that this court extend its February 4, 2010 preliminary injunction to include them. No motion contends that the prisoners are not adequately represented in the Gilman class action. Defendants have opposed one motion to intervene.
This court has determined that intervention is not warranted. In this court's experience, an action brought by multiple inmate plaintiffs proceeding pro se presents procedural problems that cause delay and confusion. Delay often arises from the frequent transfer of inmates to other facilities or institutions, the changes in address that occur when inmates are released to parole, and the difficulties faced by inmates who attempt to communicate with each other and with unincarcerated individuals. Further, there is no indication that class counsel is not adequately representing the interests of the class.
The court advises the individuals who have filed motions to intervene that if they are members of the Gilman class action for equitable relief from prison conditions they may not maintain a separate, individual suits for equitable relief involving the same subject matter of the class action. See Crawford v. Bell, 599 F.2d 890, 892-93 (9th Cir. 1979); see also McNeil v. Guthrie, 945 F.2d 1163, 1165 (10th Cir. 1991) ("Individual suits for injunctive and equitable relief from alleged unconstitutional prison conditions cannot be brought where there is an existing class action."); Gillespie v. Crawford, 858 F.2d 1101, 1103 (5th Cir. 1988) (per curiam) ("To allow individual suits would interfere with the orderly administration of the class action and risk inconsistent adjudications.").

For the foregoing reasons, the court ORDERS as follows:
(1) The motions to intervene filed by the following individuals are DENIED: (a) Michael L. Hughes, ECF No. 200; (b) Raymond Scott, ECF No. 201; (c) Stephen Liebb, ECF No. 222; (d) Edward S. Renteria, ECF No. 223; (e) David Monroe, ECF No. 224; (f) Felix Lucero, ECF No. 225; (g) Noel Valdivia, ECF No. 227; (h) Clement Brown, ECF No. 233; (i) Richard Gonzalez, ECF No. 241; (j) Stephen Eric Walker, ECF No. 244; (k) Kenneth Scott Rodgers, ECF No. 251; (l) Keith Augustine, ECF No. 253; (m) George Bubier, ECF No. 255; (n) David Scott Curtis, ECF No. 266; (o) Stephen Eric Walker, ECF No. 268; and (p) John Laponte, ECF No. 269. (2) The Clerk of Court is instructed to serve a copy of this order upon the sixteen individuals named above at the addresses listed in their motions.
IT IS SO ORDERED.
[1] The court notes that several of the sixteen motions are captioned motions for permissive joinder. The court construes these motions as motions to intervene because the arguments contained therein are better described as motions to intervene.

 
 FILED Case 2:05-cv-00830-LKK-CKD Document 257 Filed 06/03/10 Page 1 of 2

NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS

JUN 03 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

RICHARD M. GILMAN,
Plaintiff - Appellee,
v.
ARNOLD SCHWARZENEGGER, Governor of California and ROBERT DOYLE, Chairman of the Board of Parole Hearings,
Defendants - Appellants.

No. 09-16087 D.C. No. 2:05-cv-00830-LKKGGH
MEMORANDUM*

Appeal from the United States District Court for the Eastern District of California
Lawrence K. Karlton, District Judge, Presiding Argued and Submitted April 13, 2010 San Francisco, California
Before: KOZINSKI, Chief Judge, NOONAN and CALLAHAN, Circuit Judges. The district court did not err in certifying the class, regardless of whether we
review its decision de novo or for abuse of discretion. Viewed as a whole, the
* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

Case 2:05-cv-00830-LKK-CKD Document 257 Filed 06/03/10 Page 2 of 2 complaint constitutes a challenge to “a system-wide practice or policy that affects all of the putative class members.” Armstrong v. Davis, 275 F.3d 849, 868 (9th Cir. 2001). Because the claims of the named plaintiffs are coextensive with those of the rest of the class with regard to the Board of Parole Hearings, the plaintiffs’ claims are sufficiently typical as well. Hanlon v. Chrysler Corp., 150 F.3d 1011, 1020 (9th Cir. 1998). Finally, the plaintiffs satisfy Rule 23(b)(2), as they request an injunction imposing standards for parole hearings that would apply across the entire class. See Walters v. Reno, 145 F.3d 1032, 1047 (9th Cir. 1998).
We express no view as to whether further sub-classifications may be necessary or appropriate.
AFFIRMED.
2

 
 RICHARD M. GILMAN, et al., Plaintiffs, v.
J. DAVIS., et al., Defendants.
No. CIV. S-05-830 LKK/GGH.
United States District Court, E.D. California.
December 10, 2010.
ORDER
LAWRENCE K. KARLTON, District Judge.
The above captioned case is a class action concerning numerous constitutional challenges to California's parole system. The class is defined as California state prisoners who: (i) have been sentenced to a term that includes life; (ii) are serving sentences that include the possibility of parole; (iii) are eligible for parole; and (iv) have been denied parole on one or more occasions. Gilman v. Davis, No. Civ. S-05-0830 LKK GGH, 2009 U.S. Dist. LEXIS 21614 (E.D. Cal. Mar. 4, 2009), aff'd 2010 U.S. App. LEXIS 11319 (9th Cir. June 3, 2010). The plaintiff class is represented by counsel. Plaintiffs seek injunctive and declaratory relief.
Currently before this court is a motion for permissive joinder filed by Ivan Von Staich, a prisoner proceeding pro se. In essence, this prisoner argues that he should be considered a class member and requests that this court extend its February 4, 2010 preliminary injunction to include him. He does not contend that he is not adequately represented in the Gilman class action.
This court has determined that permissive joinder is not warranted. In this court's experience, an action brought by multiple inmate plaintiffs proceeding pro se presents procedural problems that cause delay and confusion. Delay often arises from the frequent transfer of inmates to other facilities or institutions, the changes in address that occur when inmates are released to parole, and the difficulties faced by inmates who attempt to communicate with each other and with unincarcerated individuals. Further, there is no indication that class counsel is not adequately representing the interests of the class.
The court advises Mr. Von Staich that if he is a member of the Gilman class action for equitable relief from prison conditions that he may not maintain a separate, individual suit for equitable relief involving the same subject matter of the class action. See Crawford v. Bell, 599 F.2d 890, 892-93 (9th Cir. 1979); see also McNeil v. Guthrie, 945 F.2d 1163, 1165 (10th Cir. 1991) ("Individual suits for injunctive and equitable relief from alleged unconstitutional prison conditions cannot be brought where there is an existing class action."); Gillespie v. Crawford, 858 F.2d 1101, 1103 (5th Cir. 1988) (per curiam) ("To allow individual suits would interfere with the orderly administration of the class action and risk inconsistent adjudications.").
For the foregoing reasons, the court ORDERS as follows:

(1) The motion for permissive joinder, ECF No. 291, is DENIED. (2) The Clerk of Court is instructed to serve a copy of this order upon Ivan Von Staich at the address listed in his motion.
IT IS SO ORDERED.

 
 1 DANIEL J. BRODERICK, CSB #89424 Federal Defender
2 MONICA KNOX, CSB #84555 DAVID M. PORTER, CSB #127024
3 Assistant Federal Defenders 801 I Street, 3rd Floor
4 Sacramento, CA 95814 Telephone: (916) 498-5700
5 monica_knox@fd.org david_porter@fd.org
6
CARTER C. WHITE, CSB # 164149 7 U.C. Davis Civil Rights Clinic
One Shields Avenue, Building TB-30 8 Davis, CA 95616-8821
Telephone: (530) 752-5440 9 ccwhite@ucdavis.edu

10 Attorneys for Plaintiffs RICHARD M. GILMAN, et al.
11

12

IN THE UNITED STATES DISTRICT COURT

13

FOR THE EASTERN DISTRICT OF CALIFORNIA

14

15

)

RICHARD M. GILMAN, et al.,

) No. Civ. S 05-830 LKK GGH

16

)

Plaintiffs, ) ORDER AMENDING DEFINITIONS OF

17

) CERTIFIED CLASS

v.

)

18

)

ARNOLD SCHWARZENEGGER, et )

19 al.,

)

)

20

Defendants. )

_______________________________ )

21

22

On March 14, 2009, the Court certified this case as a class action, creating one class

23 for all claims alleged in the Corrected Fourth Amended Complaint; the class defined as all

24 California state prisoners who a) have been sentenced to a life term with possibility of parole,

25 b) have reached parole eligibility, and c) have been denied parole at least once.

26

Plaintiffs have now moved to amend that order to create different definitions of the

27 class for different sets of claims.

28

1

GOOD CAUSE APPEARING, the Court grants Plaintiffs’ motion and orders the

2 following amendments to the class definition:

3

1. As to Claim 8 (ex post facto challenge to Proposition 9 deferral provisions), the class

4 is defined as “all California state prisoners who have been sentenced to a life term with

5 possibility of parole for an offense that occurred before November 4, 2008.”

6

2. As to Claim 9 (ex post facto challenge to Proposition 89 giving Governor authority

7 to overturn a parole decision), the class is defined as “all California state prisoners who have

8 been sentenced to a life term with possibility of parole for an offense that occurred before

9 November 8, 1988.”

10

3. As to all other claims, the class is defined as “all California state prisoners who have

11 been sentenced to a life term with possibility of parole and have reached eligibility for a

12 parole consideration hearing.”

13

14
Dated: April 22, 2011.
15

16

17

18

19

20

21

22

23

24

25

26

27

28

2

 
 RICHARD M. GILMAN, et al., Plaintiffs, v.
EDMUND J. BROWN., et al., Defendants.
No. CIV. S-05-830 LKK/GGH.
United States District Court, E.D. California.
July 22, 2011.
ORDER
LAWRENCE K. KARLTON, Senior District Judge.
Currently before the court is plaintiffs' motion for a class-wide preliminary injunction. The motion is premised upon plaintiffs' claim that Proposition 9 violates the Ex Post Facto Clause. In support of the motion, plaintiffs have provided extensive statistical data. Neither plaintiffs nor defendants, however, have provided any statistical analysis as to the significance of that data. For this reason, the court orders plaintiffs and defendants to show cause why a statistician should not be appointed under Fed. R. Evid. 706. The court further instructs the parties to either stipulate to an expert witness or separately provide a list of three potential expert witnesses for the court's consideration. Lastly, the parties shall provide argument as to the proper apportionment of costs for the expert fees.
I. BACKGROUND
A. Factual Background
1. California's Parole Scheme
Aside from the additional statistical evidence provided in plaintiffs' motion for a preliminary injunction, the facts of this case remain unchanged. For this reason, the court incorporates the background sections of its prior orders into the instant order. See February 4, 2010 Order Granting Preliminary Injunction as to Class Representatives, Gilman v. Davis, 690 F. Supp. 2d 1105 (E.D. Cal. 2010) (hereinafter "Gilman v. Davis"), reversed by Gilman v. Schwarzenegger, 638 F.3d 1101 (9th Cir. 2011) (hereinafter "Gilman"); see also Gilman, 638 F.3d at 1103-05 (explaining relevant elements of California parole scheme).
a. The Deferral Process Prior to Proposition 9
Prior to the amendments provided by Proposition 9, when a Board of Parole Hearings ("Board") panel determined that a prisoner was unsuitable for parole, the length of deferral was determined

by California Penal Code section 3041.5(b)(2) (2008). This section provided that when the Board found a prisoner unsuitable for parole,
The board shall hear each case annually thereafter, except the board may schedule the next hearing no later than the following:
(A) Two years after any hearing . . . if the board finds that it is not reasonable to expect that parole would be granted at a hearing during the following year . . .
(B) Up to five years after any hearing at which parole is denied if the prisoner has been convicted of murder, and the board finds that it is not reasonable to expect that parole would be granted at a hearing during the following years. . . . If the board defers a hearing five years, the prisoner's central file shall be reviewed by a deputy commissioner within three years at which time the deputy commissioner may direct that a hearing be held within one year.
In determining how long to defer a hearing, and in making suitability determinations at the subsequent hearings, the panel applies the same criteria used for the initial suitability determination. Cal. Pen. Code § 3041.5(b)(2)(A)-(B) (2008), Cal. Code Regs. tit. 15, §§ 2268(b), 2270(d).[1] Thus, the panel evaluates whether the factors informing its assessment of the prisoner's potential threat to public safety are likely to change; if so, when; and whether these changes will be sufficient to render the prisoner suitable for parole.
Once a deferred hearing date had been set, that hearing date could potentially be advanced. If the deferral was for five years, the Board was obliged to review the prisoner's situation at three years to determine whether the hearing should be advanced. Cal. Pen. Code § 3041.5(b)(2)(B). Moreover, a prisoner could separately request an advanced hearing date, although the former statute provided no formal mechanism for such requests. In re Jackson, 39 Cal. 3d 464, 475 (1985); see also Cal. Dep't of Corr. v. Morales, 514 U.S. 499, 512 (1995) (relying on this statement in Jackson). The court has no knowledge of whether, during the history of the prior statute, such a request was ever actually made or granted.
b. The Proposition 9 Amendments to The Deferral Process
Proposition 9 drastically altered the deferral process, replacing former subsection 3041.5(b)(2) with the following, now codified at subsection (b)(3):
The board shall schedule the next hearing, after considering the views and interests of the victim, as follows:
(A) Fifteen years after any hearing at which parole is denied, unless the board finds by clear and convincing evidence that the criteria relevant to the setting of parole release dates enumerated in subdivision (a) of Section 3041 are such that consideration of the public and victim's safety does not require a more lengthy period of incarceration for the prisoner than 10 additional years.
(B) Ten years after any hearing at which parole is denied, unless the board finds by clear and convincing evidence that . . . consideration of the public and victim's safety does not require a more lengthy period of incarceration for the prisoner than seven additional years.

(C) Three years, five years, or seven years after any hearing at which parole is denied, because . . . consideration of the public and victim's safety requires a more lengthy period of incarceration for the prisoner, but does not require a more lengthy period of incarceration for the prisoner than seven additional years.
Soon after Proposition 9 was passed, the Board issued an Administrative Directive identifying various effects of the proposition. BPH Administrative Directive No. 08/01, Regulatory Sections Impacted by Proposition 9, December 8, 2008. One such effect, which was repeatedly stated in the directive, was that the Board now had "no discretion to set a denial period for any term other than those enumerated," i.e., for a period other than "15, 10, 7, 5, or 3 years." Id.
The amended statute provides two ways in which a deferred hearing date may be changed once it has been set. First, the Board
may in its discretion, after considering the views and interests of the victim, advance a hearing set pursuant to paragraph (3) to an earlier date, when a change in circumstances or new information establishes a reasonable likelihood that consideration of the public and victim's safety does not require the additional period of incarceration of the prisoner provided in paragraph (3).
Cal. Pen. Code § 3041.5(b)(4). Second, an inmate may request that the board advance the hearing. Id. § 3041.5(d). Such a request must "set forth the change in circumstances or new information" required by subsection (b)(4). Id. § 3041.5(d)(1). The statute limits when a prisoner may make such a request:
An inmate may make only one written request as provided in paragraph (1) during each threeyear period. Following either a summary denial of a request made pursuant to paragraph (1), or the decision of the board after a hearing described in subdivision (a)[[2]] to not set a parole date, the inmate shall not be entitled to submit another request for a hearing pursuant to subdivision (a) until a three-year period of time has elapsed from the summary denial or decision of the board.
Id. § 3041.5(d)(3). The Board has subsequently promulgated a second administrative directive, which interpreted this language as imposing a three-year delay only once the prisoner has filed a request for an advanced hearing, such that a prisoner need not wait three years before filing an initial request for an advanced hearing. BPH Administrative Directive No. 09/01, "Penal Code Statutes Enacted by Proposition 9 That Allow An Advanced Hearing Date," February 5, 2009. Plaintiffs do not challenge this interpretation in their current motion.
This second directive also states that pursuant to section 3041.5(b)(4), when the Board advances a hearing date, there is not "a minimum time period that must be served from the hearing at which the denial length was determined." Thus, the Board contends that when a hearing date is advanced, whether on the Board's initiative under (b)(4) or on a prisoner's request under (d), the Board is not limited to the time periods specified for deferral of the hearing.
2. Plaintiff's Evidence

a. Statistical Data from In re Rutherford
Plaintiffs have submitted statistical evidence in support of their motion for a preliminary injunction. Some of the evidence is from the In re Rutherford settlement. This case is a class action habeas case that challenged alleged untimeliness of parole suitability hearings for life prisoners. Dec. of Thomas Master filed in support of Plaintiffs' Motion for a Preliminary Injunction ("Master Dec.") ¶ 1. After implementation of Proposition 9 on December 15, 2008, petitioners moved for a preliminary injunction seeking relief for class members who should have had parole hearings prior to implementation, but did not. See In re Rutherford, No. SC135399A, Stipulation Concerning Proposition 9's Implementation (Super. Ct. Cal, Marin Co., Mar. 27, 2009) at 2. The parties reached a settlement on plaintiffs' motion before it was decided by the state court. Id.
The parties in In re Rutherford stipulated to the following conditions on March 27, 2009:
(1) The parties agreed upon a final list of class members subject to the stipulation. They include only the following groups: (a) "Any prisoner who was due a hearing before December 15, 2008, but whose hearing was delayed until after December 15, 2008 because of reasons for which the State was responsible;" (b) "Any prisoner who was due a hearing before December 15, 2008, but whose hearing was delayed until after December 15, 2008, because of `exigent circumstances[3];'" (c) "Any prisoner who postponed a parole hearing to a date before December 15, 2008, but who was not provided the hearing before December 15, 2008, because of reasons for which the State was responsible, or because of `exigent circumstances;'" and (d) "Any prisoner whose hearing was commenced before December 15, 2008, but which was not completed, and was then continued to be completed on a date after December 15, 2008." Id. at 34.
(2) Class members included within the settlement "who ha[ve] not yet been provided with [their] outstanding parole hearing shall be provided with [their] next hearing under" the deferral process prior to Proposition 9. Id. at 4. The Board will review the hearing decision for these class member to determine whether they should be modified under this deferral process. Id. at 5.
(3) Parole hearings for class members within subsection (d) will be held in accordance with the deferral process prior to Proposition 9. Id.
Pursuant to the general settlement, counsel for petitioners "receives monthly reports from the Board" listing the grants of parole for prisoners with life sentences, the number of denials in that month, and the time period until a subsequent hearing for all denials. Pursuant to the settlement relating to the application of Proposition 9, counsel for petitioners have also received a report listing all prisoners whose deferral dates have been modified. This report lists the name, CDC number, institution, the parole hearing deferral date set when Proposition 9 was applied, and the parole hearing deferral date as modified according to pre-Proposition 9 standards.
Combining the data from the monthly reports and the Proposition 9 report, plaintiffs have identified the individuals who received grants of parole as a result of the modified deferral dates to pre-Proposition 9 calculations.[4]

2. Statistical and Anecdotal Evidence on Advanced Hearing Process
Plaintiffs have also presented evidence on how the advanced hearing process has been utilized in practice. In sum, plaintiff has presented the following data for the time period of January 2009, shortly after Proposition 9 was implemented, through December 2010:
(1) The Board never initiated the process to advance a hearing for a prisoner.
(2) One hundred and nineteen petitions were filed by prisoners.
(3) One hundred and six of these petitions were summarily denied, which, according to the Board's training materials, occurs when a prisoner fails to make a prima facie showing of both a change in circumstances or new information and that he has reached parole suitability at the time he files his petition to advance.
(3) Eight of these petitions were denied following a full review, in which a deputy commissioner of the board can review a prisoner's entire file.
(4) Five prisoners were granted advanced hearings, but none had been held as of April 2011. The average length of time between the prisoners' petitions to advance and the scheduled advanced hearing was 13 months. The average length of time between the prisoner's most recent hearing and the scheduled advanced hearing was 22 months.
(5) Plaintiffs have also presented anecdotal evidence from some of the prisoners who fell within each of the categories discussed above.
B. Procedural History
On December 19, 2008, plaintiffs moved for a preliminary injunction enjoining implementation of Proposition 9 as to the entire class. The motion was heard on January 30, 2009, and remained under submission. On August 11, 2009, the court ordered the parties to brief whether the court had jurisdiction over the motion for the preliminary injunction in light of the Ninth Circuit's grant of defendants' petition for permission to appeal this court's order granting class certification. In their response to this order plaintiffs agreed "that any preliminary injunction that issues prior to the resolution of the pending appeal would be restricted to the named plaintiffs. . . ." Response, Doc. No. 206 at 4 (August 26, 2009). On February 4, 2010, the court granted plaintiffs' motion for a preliminary injunction as to the named plaintiffs only. Defendants were, thus, enjoined from enforcing the provisions of Proposition 9 that amend former California Penal Code section 3041.5(b)(2)(A) as to the named plaintiffs.
Defendants promptly appealed this court's February 4, 2010 order. On December 6, 2010, the Ninth Circuit reversed this court's entry of a preliminary injunction on the grounds that, "There were no facts in the record from which the district court could infer that Proposition 9 created a significant risk of prolonging Plaintiffs' incarceration." The only facts addressing implementation of Proposition 9 concerned named plaintiff Masoner who had received one-year deferrals prior to the passage of Proposition 9 and had once been found suitable by the Board only to have the grant of parole reversed by the Governor. At his 2008 hearing, the panel conceded that he was

approaching suitability, yet he would not receive a scheduled suitability hearing until late 2011. There was no evidence concerning the effect of the advanced hearing process.
On November 18, 2010, plaintiffs moved for a preliminary injunction as to the entire class. Defendants timely opposed this motion. The parties filed supplemental briefing in light of the Ninth Circuit's decision. On January 12, 2011, the court heard oral argument on this motion and set an evidentiary hearing to resolve outstanding issues. On May 17, 2011, the court held the evidentiary hearing.[5] The parties both filed supplemental briefing after the hearing.
II. STANDARDS
A. Standard for a Preliminary Injunction
A preliminary injunction is an "extraordinary remedy." Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 22 (2008) (internal citation omitted). When a court considers whether to grant a motion for a preliminary injunction, it balances "the competing claims of injury, . . . the effect on each party of the granting or withholding of the requested relief, . . . the public consequences in employing the extraordinary remedy of injunction," and plaintiff's likelihood of success. Id. at 20, 24 (quoting Amoco Prod. Co. v. Gambell, 480 U.S. 531, 542 (1987); Weinberger v. Romero-Barcelo, 456 U.S. 305, 312 (1982). In order to succeed on a motion for a preliminary injunction, the plaintiff must establish that "he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest." Winter, 555 U.S. at 20.
B. Standard for Appointment of a Neutral Expert Witness
Under Fed. R. Evid. 706, "The court may on its own motion .. . enter an order to show cause why expert witnesses should not be appointed, and may request the parties to submit nominations." The rule only allows the court to appoint a neutral expert. See In re High Fructose Corn Syrup Antitrust Litigation, 295 F.3d 651, 665 (7th Cir. 2002). The most important question courts consider when deciding if they should appoint neutral expert witnesses under the rule is whether doing so will promote accurate factfinding. Gorton v. Todd, ___ F. Supp. 2d ____, ____ (E.D. Cal. 2011), available at 2011 WL 2557508, at *7 (citing 29 Charles Alan Wright et al., Federal Practice and Procedure § 6304 (3d ed. Supp. 2011)). Courts are also to look to whether evidence has been presented that demonstrates a serious dispute that could be resolved or better understood through expert testimony. Id. at *12.
Expert witnesses appointed under Rule 706 are entitled to reasonable compensation, which, in civil cases not involving just compensation under the Fifth Amendment, "shall be paid by the parties in such proportion and at such time as the court directs, and thereafter charged in like manner as other costs." Fed. R. Evid. 706; see also McKinney v. Anderson, 924 F.2d 1500, 1511 (9th Cir. 1991), affirmed on other grounds by Helling v. McKinney, 509 U.S. 25 (1993).
III. ANALYSIS

The Ninth Circuit reversed this court's February 2, 2010 order solely on the grounds that there was insufficient evidence for the court to conclude that plaintiffs were likely to succeed on the merits of their cause of action challenging Proposition 9. The parties have presented no new evidence or arguments that alter this court's conclusions as to the balance of hardships and public interest in its February 2, 2010 order. Thus, the only factors relevant to the instant motion are the likelihood of success on the merits and irreparable injury — specifically, whether plaintiffs have provided sufficient evidence from which the court can determine that plaintiffs have demonstrated a likelihood of success on the merits and irreparable injury. In order to demonstrate a sufficient likelihood of success on the merits to justify preliminary relief, plaintiffs must demonstrate "facts in the record from which the district court [can] infer that Proposition 9 created a significant risk of prolonging [p]laintiffs' incarceration."[6] Gilman, 638 F.3d at 111011. As discussed in this court's prior order, if plaintiffs can demonstrate a likelihood of success on the merits that plaintiffs' incarceration will be prolonged, they have also demonstrated irreparable injury because prolonged incarceration is an irreparable harm. Further, as the court previously found, "The relevant likelihood . . . is not the likelihood of injury absent any adjudication of this case. Instead, the question is whether such injury is likely to occur before final resolution of this matter." Gilman v. Davis, 690 F. Supp. 2d at 1126 (E.D. Cal. 2010).
1. The Ex Post Facto Clause
The Constitution prohibits states from enacting ex post facto laws. Garner v. Jones, 529 U.S. 244, 249 (2000) (citing U.S. Const. art I, § 10, cl. 1). Two Supreme Court cases guide analysis of whether modifications of parole law that apply retroactively are unconstitutional as ex post facto laws. See Garner, 529 U.S. 244; Cal. Dep't of Corr. v. Morales, 514 U.S. 499 (1995); see also Gilman v. Schwarzenegger, 638 F.3d at 1106-10 (discussing same).
In Morales, the Court considered whether a California law "authoriz[ing] the Board to defer subsequent suitability hearings for up to three years if the prisoner has been convicted of `more than one offense which involves the taking of a life' and if the Board `finds that it is not reasonable to expect that parole would be granted at a hearing during the following years and states the bases for the finding" violates the ex post facto clause. 514 U.S. at 503 (quoting Cal. Penal Code § 3041.5(b)(2) (West 1982)). The Court held the "focus of the ex post facto inquiry is . . . whether a [retroactive legislative] change alters the definition of criminal conduct or increases the penalty by which a crime is punishable." Id. at 506 n.3 (citing Collins v. Youngblood, 497 U.S. 37, 41 (1990)). A delay in parole hearings only raises ex post facto concerns if "that delay effectively increases a prisoner's term of confinement." Id. at 509 n.4. When considering the law at issue, the Court emphasized that the amendment "made only one change [to California's parole laws]: It introduced the possibility that after the initial parole hearing, the Board would not have to hold another hearing the very next year, or the year after that, if it found no reasonable probability that respondent would be deemed suitable during in the interim period." Id. at 507. The Court ultimately concluded that the law did not effectively increase a prisoner's term of confinement and, thus, violate the ex post facto clause, because (1) the law "applies only to a class of prisoners for whom the likelihood of release on parole is quite remote, and (2) "the Board retains the authority to tailor the frequency of subsequent suitability hearings to the particular circumstances of the individual prisoner." Id. at 510-11. Furthermore, the Court determined that, "[T]here is no reason to conclude that the amendment will have any

effect on any prisoner's actual term of confinement, for the current record provides no basis for concluding that a prisoner who experiences a drastic change of circumstances would be precluded from seeking an expedited hearing from the Board." Id. at 512. It continued, based on the record before it and the class of prisoners affected by the law, to find that, "Even if a prisoner were denied an expedited hearing, there is no reason to think that such postponement would extend any prisoner's actual period of confinement." Id. at 513.
Five years later, the Court considered whether a modification of parole law in Georgia violated the ex post facto clause. Garner v. Jones, 529 U.S. 244 (2000). In Garner, the Court evaluated a change of the law concerning parole that was closer to the amendment at issue in the case at bar. At the time plaintiff committed his second offense in which he was sentenced to life, the Georgia parole system required the parole board "to consider inmates serving life sentences for parole after seven years." Id. at 247 (citing Ga. Code. § 42-9-45(b) (1982). If the board denied parole, it was required to reconsider whether the inmate should be paroled every three years. Id. (citing Ga. Rules & Regs., Rule 475-3-.05(2) (1979). After plaintiff committed his second offense, the parole board amended its rules to require reconsideration at least every eight years. Id. at 247 (citing Ga. Rules & Regs., Rule 475-3-.05(2) (1985)). Specifically, "the law vest[ed] the Parole Board with discretion as to how often to set an inmate's date for reconsideration, with eight years for the maximum." Id. at 254. Further, the parole board's policies allow "expedited parole reviews in the event of a change in their circumstance or where the Board receives new information that would warrant a sooner review." Id. (internal quotation omitted).
Plaintiff brought a facial challenge to the amendment. The Court considered "whether the amended Georgia Rule creates a significant risk of prolonging respondent's incarceration," id. at 251, in light of the "whole context of Georgia's parole system," id. at 252. It held that, "When the rule does not by its own terms show a significant risk, the [plaintiff] must demonstrate, by evidence drawn from the rule's practical implementation by the agency charged with exercising discretion, that its retroactive application will result in a longer period of incarceration than under the earlier rule." Id. at 255. The Court noted that "[T]he general operation of the Georgia parole system may produce relevant evidence and inform further analysis" on whether the "law created a significant risk of increasing [plaintiff's] punishment." Id. Thus, the Court concluded that plaintiff failed to demonstrate, that the amended law, "in its operation, created a significant risk of increased punishment for" plaintiff. Id. at 257 (emphasis added). Plaintiff claimed that he had not been permitted sufficient discovery to make this showing and, consequently, the Court remanded the case to permit plaintiff to conduct discovery. Id.
In its reversal of this court's entrance of a preliminary injunction as to the named plaintiffs only, the Ninth Circuit noted that, "[T]he changes to the frequency of parole hearings here are more extensive than the change in either Morales or Garner." Gilman, 638 F.3d at 1107. Specifically, "Neither Morales nor Garner involved a change to the minimum deferral period, the default deferral period, or the burden to impose a deferral period other than the default period." Id. at 1108. Of particular note is the "eliminat[ion of] the Board's discretion to set a one-year deferral period, even if the Board were to find by clear and convincing evidence that a prisoner would be suitable for parole in one year." Id. Nonetheless, because "advance hearings are explicitly made available by statute," the Ninth Circuit found that this court abused its discretion in entering a

preliminary injunction without evidence that "the advance hearings do not sufficiently reduce the risk of increased punishment for prisoners." Id. at 1109.
2. Need for Expert Analysis
Currently before the court is a substantial amount of data concerning the implementation of Proposition 9. There appears to be no dispute as to the accuracy of the data. Rather, plaintiffs and defendants disagree as to how the court should interpret it. See, e.g., Corrected Pl.'s PostEvidentiary Hr'g Br. Re: Prelim. Inj., Doc. No. 358, at 20; Def.'s Post-Hr'g Br. Evidentiary Hearing Pl.'s Mot. Prelim. Inj., Doc. No. 357, at 10. In essence, the court is faced with a lot of statistical evidence and conclusions of lawyers on the meaning of such evidence, but with no statistical analysis on the significance of the evidence. Even without training in statistics, the court can observe that plaintiffs have revealed information suggesting the possibility that the advanced hearing process does not mitigate a significant risk of prolonged incarceration for at least some sub-groups of the class (namely those with three-year deferrals under Proposition 9). Nonetheless, it is impossible for the court to make a determination of the effects of Proposition 9 on class members absent the assistance of an expert witness. Thus, the court orders the parties to show cause why a neutral expert witness or witnesses should not be appointed to analyze the extent, if any, to which Proposition 9 creates a significant risk of prolonged incarceration for all or some class members. In particular, the expert should analyze (1) whether the modified deferral periods create a significant risk of increased incarceration for all or some class members; and, if so, (2) whether the advanced hearing process, as applied, sufficiently reduces the risk of prolonged incarceration for all or some class members.
IV. CONCLUSION
For the foregoing reasons, the court ORDERS as follows:
(1) The parties are ORDERED TO SHOW CAUSE why a statistical expert witness or witnesses should not be appointed to analyze the issues discussed above within thirty (30) days.
(2) The parties are FURTHER ORDERED TO SHOW CAUSE as to why, if the court appoints an expert or experts, it should not apportion half of the expert costs to plaintiffs and half to defendants within thirty (30) days.
(3) The parties are FURTHER ORDERED to either stipulate to an expert witness or witnesses or to each provide the court with three nominations for such a witness or witnesses within thirty (30) days.
IT IS SO ORDERED.
[1] Prior to Proposition 9, the Board had the power to set regulations specifying the factors to be considered in determining the length of deferral; the Board's regulations specified that these factors were the same as those used in determining suitability. Proposition 9 incorporates these regulations in to the statute itself. Thus, the penal code now specifies that public safety is the determinant of both suitability and the deferral period.
[2] Subdivision (a) refers to "all hearings for the purpose of reviewing a prisoner's parole suitability." Cal. Pen. Code § 3041.5(a).

[3] Exigent circumstances are defined as a natural disaster, institution security lockdown, institution medical lockdown/quarantine, essential party ill, emergency involving essential party, power outage, equipment failure, prisoner medically unavailable, prisoner psychiatrically unavailable, attorney not prepared to proceed, and attorney became unavailable after hearing schedule confirmed. Id. at Attachment A.
[4] The court notes that the data does not reveal whether the individuals who received grants would have received advanced hearings under Proposition 9. These individuals had no meaningful opportunity to apply for advanced hearings, or at least to receive rulings on such hearings, given that the stipulation was entered less than four months after Proposition 9 was implemented. Plaintiffs have, however, provided additional evidence from discovery concerning the advanced hearing process as discussed in the following sub-section.
[5] The court notes the unorthodox nature of the evidentiary hearing. The majority of the evidence put on by plaintiffs was tendered through "testimony" of plaintiffs' counsel, who conducted various analyses and investigations. Defendants have not objected to counsel's testimony. Nonetheless, the court has considered her testimony as argument and presentation of evidence rather than as evidence itself.
[6] It is important to note that the Court of Appeals did not find that this court erroneously analyzed California's parole system or identified an incorrect standard. Rather, the Ninth Circuit only found that this court abused its discretion in entering a preliminary injunction where the panel concluded that there were no facts in the record to suggest a significant risk of prolonged incarceration.

 
 RICHARD M. GILMAN, et al., Plaintiffs, v.
EDMUND J. BROWN, et al., Defendants.
No. CIV. S-05-830 LKK/GGH.
United States District Court, E.D. California.
August 31, 2011.
ORDER
LAWREMCE K. KARLTON, District Judge.
On July 25, 2011, the court ordered the parties to show cause why a statistical expert witness should not be appointed pursuant to FRE 706, and if appointment is made, whether the court should apportion such expert costs half to plaintiffs and half to defendants. (Doc. No. 359). The court also instructed the parties to submit nominations for statistical expert witnesses.
On August 24, 2011, the parties responded to the order to show cause and submitted nominations for potential expert witnesses. Plaintiffs have agreed that an expert should be appointed and that costs should be apportioned equally. Defendants contend, however, that an expert will not be helpful in the instant case and that plaintiffs should pay the entire cost of any neutral experts appointed by the court.
For the reasons discussed in the order to show cause, the court finds that appointment of a neutral expert witness is appropriate in this case. The court has reviewed the background information for the proposed expert witnesses, and will appoint Professor Richard A. Berk of the University of Pennsylvania. The court is confident that Professor Berk can provide unbiased testimony.[1]
Professor Berk's fees are $250 per hour for this case. The court finds this rate to be reasonable. Defendants urge the court to apportion his fees entirely to plaintiffs. They do not argue that they lack the resources to pay the expert costs, but rather contend that plaintiffs should bear any costs because the expert will only be evaluating plaintiffs' evidence. The argument is without merit. The court is appointing an expert because it believes it needs his expertise to evaluate the evidence, regardless of who produced it. Accordingly, it concludes that costs and fees should be apportioned equally between plaintiffs and defendants.
The scope of Professor Berk's expert testimony shall be to determine the statistical probability that Proposition 9 will have the effect of prolonging incarceration for all or some class members. Professor Berk should separately consider the evidence presented by plaintiffs at the April 6, 2011 hearing and the evidence accumulated by plaintiffs to date. In the order to show cause, the court separated the analysis into two separate questions: first, to consider the likelihood that the modified deferral periods will prolong incarceration and second, to consider the likelihood that the advanced hearing process, as applied, will mitigate any prolonged incarceration.[2] The court

in no way intends to constrain Professor Berk's analysis, and encourages him to go beyond the limitations of these questions to the extent that he determines that additional analysis will shed light on the question before the court: namely whether Proposition 9 creates a significant risk for increased incarceration by class members.
The court further notes that the current motion before the court is for a preliminary injunction. Accordingly, the court recognizes that there may not yet be sufficient evidence from which to draw conclusions as to certain subgroups of the class. The focus of the instant inquiry is whether some or all class members are likely to experience prolonged incarceration as a result of Proposition 9 before final resolution of this case, and not whether they are likely to experience prolonged incarceration ever. For this reason, the court further instructs Professor Berk to opine on the likely time in which the class or a subgroup of the class will experience a likelihood of prolonged incarceration, if any.
Professor Berk is appointed as a neutral expert. For this reason, plaintiffs and defendants may no longer communicate directly with him. The court will coordinate with Professor Berk.
Plaintiffs shall submit to the court within fourteen (14) days of the issuance of this order all evidence presented in the evidentiary hearing, all data underlying the summaries and other analyses presented at the hearing, and all data obtained to date from the Rutherford class action and concerning implementation of the advanced hearing process. If possible, plaintiffs shall submit this information in electronic format. Plaintiffs shall also serve a copy of this evidence upon defendants. Upon receipt, the court shall send the evidence to Professor Berk for analysis.
Further, a status conference is currently set for September 6, 2011. In light of this court's expert appointment, the court vacates the status. The court shall set a further status conference after Professor Berk provides the court with an estimate on the time required to prepare his expert report.
For the foregoing reasons, the court ORDERS as follows:
(1) Professor Berk is appointed as a neutral expert witness. (2) Professor Berk shall be compensated at the rate of $250 per hour. He shall quarterly submit itemized bills to the court. The court will file the bills and provide the parties with fourteen (14) days to object. The court will then direct payment of the bill, in full or in part. (3) Plaintiffs shall submit to the court within fourteen (14) days of the issuance of this order an electronic version of all data described above. They must also serve a copy of such data upon defendants.
(4) The September 6, 2011 status in this case is VACATED.
IT IS SO ORDERED.
[1] Defendants appear to have concerns about the ability of an expert to be impartial. To perhaps assuage the concerns of defendants about his ability to be neutral, Professor Berk has informed the court that he had served as an expert for the California Department of Corrections and Rehabilitation in the past and currently serves as an expert for the parole and probation departments of several mid-Atlantic states.

[2] The court notes that in the order to show cause it used the term "significant risk" when describing the questions for expert testimony. Recognizing the ambiguity caused by use of the term significant with respect to statistical expert testimony, the court now makes clear that the expert is to analyze the likelihood of increased incarceration and the court is to determine whether the likelihood demonstrates a significant risk of increased incarceration.

 
 RICHARD M. GILMAN, et al., Plaintiffs, v.
EDMUND J. BROWN, et al., Defendants.
No. CIV. S-05-830 LKK/GGH.
United States District Court, E.D. California.
September 2, 2011.
ORDER
LAWRENCE K. KARLTON, Senior District Judge.
On August 17, 2011, the court denied Darrel King and Timothy Leang Jones' motion for permissive joinder. (Doc. No. 361). On August 29, 2011, Mr. King and Mr. Jones filed a motion for reconsideration. (Doc. No. 364). In essence, they are arguing that this court should make them class representatives. If, as they contend, Mr. King and Mr. Jones are class members and, thus, they do not need to notify the court — Mr. King's and Mr. Jones's interests are already represented in this action as class members. No action is required of the court to allow Mr. King and Mr. Jones to obtain relief, if any, through this class action.
Mr. King and Mr. Jones are free to contact class counsel with any concerns about the case. The court has certified the class action and class counsel, thus, represent all members of the class. Class counsel are available at the following addresses:
Daniel J. Broderick Monica Knox David M. Porter Office of the Federal Defender 801 I Street 3rd Floor Sacramento, CA 95814 Carter Capps White King Hall Civil Rights Clinic UC Davis School of Law One Shields Avenue, Bldg. TB 30 Davis, CA 95616
The court reiterates that Mr. King and Mr. Jones need not take any action to be considered class members. All individuals who fall within the class definition are class members. Absent any suggestion by Mr. King and Mr. Jones that class counsel are not adequately representing their interests, the court will not take any further action on their concerns.
Further, the court denies Mr. King and Mr. Jones' request for an interlocutory appeal. Again, the court reiterates that Mr. King and Mr. Jones need not take any action in order to benefit from relief, if any, from the class action if they are indeed class members.
For the foregoing reasons, Mr. King and Mr. Jones's motion for reconsideration and request for an interlocutory appeal (Doc. No. 364) is DENIED. The Clerk of Court is instructed to serve this order upon Mr. King and Mr. Jones at the addresses listed on the motion.
IT IS SO ORDERED.

 
 RICHARD M. GILMAN, et al., Plaintiffs, v.
EDMUND G. BROWN, JR., et al., Defendants.
No. CIV. S-05-830 LKK/GGH.
United States District Court, E.D. California.
April 4, 2012.
ORDER
LAWRENCE K. KARLTON, Senior District Judge.
On November 30, 2011, the court issued the report of statistical expert Professor Richard Berk, ECF No. 384. In that report, Professor Berk declared that after a reasonable statistical analysis of the evidence submitted by plaintiff, Professor Berk could not conclude that there is likely to be a risk of prolonged incarceration under the procedural changes in Proposition 9, as compared to the pre-Proposition 9 procedures. The court ordered additional briefing from the parties, which has been received.
On the record presently before the court, plaintiffs' motion for a preliminary injunction must be denied. Nothing in this order should be construed as an opinion on the merits of plaintiffs' claims at trial.
Accordingly, the court ORDERS as follows:
[1] Plaintiff's motion for a preliminary injunction, ECF No. 284 is DENIED. [2] A status conference is SET for April 30, 2012 at 3:30 p.m.
IT IS SO ORDERED.

 
 RICHARD M. GILMAN, et al., Plaintiffs, v.
EDMUND G. BROWN, JR., et al., Defendants.
No. Civ. S-05-830 LKK/GGH.
United States District Court, E.D. California.
May 30, 2012.
ORDER
LAWRENCE K. KARLTON, Senior District Judge.
In California persons convicted of murder but with a sentence less than mandatory life, are at some point, eligible for parole. See California Penal Code §3041, In re Lawrence, 44 Cal 4th 1181 (2008). Plaintiffs in this class action are such prisoners who allege constitutional violations related to California's parole system. Pending before the court is defendant's motion for judgment on the pleadings, ECF No. 404. For the reasons stated herein, defendants' motion is GRANTED with respect to claims 2, 4, 5, and 7, and is DENIED as to the remaining claims.
I. Background
The factual and procedural background of this case have been detailed at length in prior orders. See, e.g., March 4, 2009 Order Granting Class Certification, ECF No. 182. What follows is a summary of the background relevant to this motion.
Plaintiffs' complaint alleges nine causes of action challenging California's parole process on ex post facto and due process grounds. Those causes of action can be grouped as follows: Claims 1 and 3-7 allege due process violations with respect to parole suitability determinations; Claim 8 alleges an ex post facto violation with respect to the deferral provisions of California's Proposition 9; and Claim 9 alleges an ex post facto violation with respect to the Governor's authority to reverse a parole grant, enacted by Proposition 89. The parties agree that Claim 2 is redundant of Claims 8 and 9, and should be dismissed.
This court has certified a class and subclasses. The class is defined as all California state prisoners who a) have been sentenced to a life term with possibility of parole, b) have reached parole eligibility, and c) have been denied parole at least once. The subclasses are: 1) As to Claim 8 (ex post facto challenge to Proposition 9 deferral provisions), the class is defined as "all California state prisoners who have been sentenced to a life term with possibility of parole for an offense that occurred before November 4, 2008." 2) As to Claim 9 (ex post facto challenge to Proposition 89 giving Governor authority to overturn a parole decision), the class is defined as "all California state prisoners who have been sentenced to a life term with possibility of parole for an offense that occurred before November 8, 1988." April 21, 2011 Order, ECF No. 339.

Defendants now seek a judgment on the pleadings on all claims.
II. Standard for a Judgment on the Pleadings
A motion for judgment on the pleadings may be brought "[a]fter the pleadings are closed but within such time as to not delay the trial." Fed.R.Civ.P. 12(c). All allegations of fact by the party opposing a motion for judgment on the pleadings are accepted as true. Doleman v. Meiji Mut. Life Ins. Co., 727 F.2d 1480, 1482 (9th Cir. 1984). A "dismissal on the pleadings for failure to state a claim is proper only if `the movant clearly establishes that no material issue of fact remains to be resolved and that he is entitled to judgment as a matter of law."' Id. (quoting 5 C. Wright & A. Miller, Federal Practice and Procedure: Civil § 1368, at 690 (1969)); see also McGlinchy v. Shell Chemical Co., 845 F.2d 802, 810 (9th Cir.1988).
When a Rule 12(c) motion is used to raise the defense of failure to state a claim, the motion is subject to the same test as a motion under Rule 12(b)(6). McGlinchy, 845 F.2d at 810; Aldabe v. Aldabe, 616 F.2d 1089, 1093 (9th Cir. 1989). Thus, the complaint must be supported by factual allegations. Ashcroft v. Iqbal, 556 U.S. 662, ___, 129 S. Ct. 1937 (2009). Moreover, this court "must accept as true all of the factual allegations contained in the complaint." Erickson v. Pardus, 551 U.S. 89, 94 (2007).
III. Analysis
A. Due Process Clause Claims
Plaintiffs' due process clause claims (Claims 1, 3-7) allege various constitutional defects in California's parole eligibility determination process. Generally, plaintiffs allege that the Board of Parole Hearings ("the Board") and the Governor are denying and deferring parole for improper reasons. Defendants argue that the Supreme Court's holdings in Greenholtz v. Inmates of the Nebraska Penal and Correction Complex, 442 U.S. 1 (1979) and Swarthout v. Cooke, 131 S. Ct. 859 (2011) render the due process claims uncognizeable.
Greenholtz was a Section 1983 case challenging Nebraska's procedure for making parole eligibility determinations. There is no federal constitutional right to be released on parole prior to the end of a valid sentence. Greenholtz, 442 U.S. at 7. However, once a state establishes a parole system, that system may create a court enforceable expectation of parole. In Greenholtz, the Supreme Court "accepted" that Nebraska's statutory scheme created an expectancy of release on parole, and that the expectancy "is entitled to some measure of constitutional protection." The Court emphasized that "whether any other state statute [governing parole eligibility] provides a protectable entitlement must be decided on a case-by-case basis." Id. at 12. The Court found that in the context of Nebraska's parole eligibility determination procedure due process is satisfied where the procedure "affords an opportunity to be heard, and when parole is denied it informs the inmate in what respects he falls short of qualifying for parole." Id. at 16. Although the Court's holding was specific to Nebraska's statutory scheme, the Court noted that "the function of legal process, as that concept is embodied in the Constitution, and in the realm of factfinding, is to minimize the risk of erroneous decisions." Id. at 11. Thus, a procedure which does not decrease

the risk of error does not raise due process concerns. In any event, defendants do not deny that California's system creates some form of liberty interest.
In Swarthout, two California prisoners petitioned for federal habeas relief after being denied parole by the Board and Governor, respectively. Both had sought, and were denied, habeas relief in state court. The state court had determined that the parole denials had been based on "some evidence," of current dangerousness as is required by state law. The Ninth Circuit, applying the AEDPA standard to petitioner Cooke's claim, found that the state court's conclusion was "based on an unreasonable determination of the facts in light of the evidence," and that therefore Cooke was entitled to habeas relief. Cooke v. Solis, 606 F.3d 1206, 1216 (9th Cir. 2010). The Supreme Court reversed, holding that "the beginning and the end of the federal habeas courts' inquiry into whether Cooke and Clay received due process" should have been a review of the application of constitutionally required procedures. Swarthout at *7. The Court held that due process was satisfied because the petitioners "were allowed to speak at their parole hearings and to contest the evidence against them, were afforded access to their records in advance, and were notified as to the reasons why parole was denied." The Court noted that this process was "at least" the amount of process due, citing Greenholtz's holding that "the Constitution does not require more" than an opportunity to be heard and a statement of the reasons why parole was denied in the context of a parole statute similar to California's. Swarthout at *7.
Plaintiffs here allege that California's procedure for determining parole eligibility falls short of constitutional requirements because the Board and the Governor's decisions are guided by "biases," such as a belief that a prisoner must serve an arbitrary number of years before he can be considered eligible for parole (First and Third Causes of Action); the Board and Governor rely on static factors to support the denial of parole, despite lack of risk to public safety (Fourth Cause of Action); the reasons given to defer or deny parole are not connected to risk to public safety and do not provide meaningful guidance to the prisoner about what he must do to obtain parole (Fifth Cause of Action); the Board and Governor make their decisions based on biases, but justify them by the use of regulatory criteria, or base their decisions on limited items of evidence in the record that are inconsistent with the record as a whole (Sixth Cause of Action); the Board and Governor defer parole reconsideration for some plaintiffs for more than one year for unreasonable reasons (Seventh Cause of Action). Thus, plaintiffs argue that, although the California parole statutes do provide for the basic due process safeguards (a hearing and a statement of the reason for denial), the hearings themselves are tainted by the biases of the Board and the Governor, rendering them constitutionally inadequate.
The Supreme Court has spoken unequivocally on the division of labor between the state and federal courts with respect to challenges to parole eligibility determinations for state prisoners. Pursuant to Swarthout, the federal courts may not review a state's parole eligibility decision on the merits. This is because the question of whether those decisions comply with state law is a question for the state's courts and outside the jurisdiction of the federal courts. The federal courts' role is to determine whether those prisoners have received the process they are due under the constitution, i.e. a hearing and a statement of reasons for the denial of parole. As is explained below, it appears to this court that the Court's ruling, while quite confining, does not end the inquiry in this case.

Although not discussed in Greenholtz or Swarthout, the Supreme Court has held elsewhere that a constitutional hearing is a "meaningful" hearing. "For more than a century the central meaning of procedural due process has been clear: Parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified. It is equally fundamental that the right to notice and an opportunity to be heard must be granted at a meaningful time and in a meaningful manner." Fuentes v. Shevin, 407 U.S. 67, 80 (1972)(internal quotations omitted)(emphasis added). For example, a parole eligibility determination presided over by Board members who were all wearing earplugs would not be a "meaningful" hearing. Similarly, it appears to this court that the statement of reasons for a denial of parole must be a statement of the real reasons for denial.
Defendants apparently concede that a parole board hearing would not satisfy due process if it were presided over by officers with an unconstitutional bias. Defs.' Mot. 10. Indeed, in the context of administrative adjudication as well as in the courts, "a biased decisionmaker [is] constitutionally unacceptable." Withrow v. Larkin, 421 U.S. 35, 47 (1975). "That officers acting in a judicial or quasi-judicial capacity are disqualified by their interest in the controversy to be decided is, of course, the general rule." Tumey v. Ohio, 273 U.S. 510, 522 (1927). A governor's role when reviewing parole decisions, is "functionally comparable" to a judge's role. Miller v. Davis, 521 F.3d 1142, 1144 (9th Cir. 2008). Similarly, parole board officials' decisions to grant, deny, or revoke parole is "functionally comparable" to tasks performed by judges. Swift v. California, 384 F.3d 1184, 1189 (9th Cir. 2004). Thus, in order to be constitutionally sufficient, a parole eligibility hearing must be presided over by unbiased officials. Similarly, the Governor, when reviewing parole decisions, must make the decisions without improper bias. The question then, is what types of bias in parole eligibility decisionmakers will render a parole eligibility hearing inadequate.
No one could dispute that a decision made by a Board tainted by a bribe would not satisfy due process even though the Board went through the motions of holding a hearing and stating a permissible reason for denial of parole. "Various situations have been identified in which experience teaches that the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable. Among these cases are those in which the adjudicator has a pecuniary interest in the outcome and in which he has been the target of personal abuse or criticism from the party before him. Withrow v. Larkin, 421 U.S. 35, 47 (1975). A self-interest in the outcome of a quasi-judicial decision, then, is one type of bias that could render a hearing inadequate.
In many contexts, those presiding over the hearing must not only be free from self-interest, but they must also be "detached." In the parole revocation context, the Supreme Court mandates a "neutral and detached" hearing body. Morrisey v. Brewer, 408 U.S. 471 (1972).[1] The court concludes that in the parole eligibility determination context, a hearing must be conducted by a neutral, detached body, free from pecuniary or other self-interest in the outcome. A neutral decision maker is one who arrives at a hearing with an open mind, who considers the evidence and arguments presented at the hearing, and whose decision is influenced by what transpires at the hearing.

Thus, plaintiffs could ultimately prevail on their due process claims upon a showing that the Board and the Governor were not "neutral decision-makers" while making parole eligibility decisions. Plaintiffs have alleged as much in their complaint by asserting, in essence, that the Board and Governor had a predetermined judgment about whether parole should be granted or denied based on factors that are not a part of the hearing. If it is the case that the Board and Governor had an across-the-board practice of denying parole until a minimum number of years was served, with no consideration given to the substance of the hearing, then the plaintiffs are arguably deprived of a meaningful hearing, and consequently, of their constitutional right to due process.[2]
Similarly, plaintiffs allege defects with respect to the due process requirement of a statement of reasons for parole denial. Plaintiffs allege that the Board and Governor make their decisions based on biases, but justify them by the use of regulatory criteria. This allegation challenges the procedure, and not the substance of the Board's and Governor's decision, and is thus within the scope of this court's authority.
Accordingly, defendants motion for judgment on the pleadings of plaintiffs' due process claims is DENIED with respect to Claims 1, 3, and 6. The motion is GRANTED with respect to Claims 4, 5, and 7, which challenge the substance of the parole eligibility decisions.
B. Statute of Limitations
Defendants assert that the claims of the named plaintiffs and certain class members are barred by the statute of limitations. Specifically, defendants contend that all of plaintiffs' Due Process claims (Claims 1, 3-7) are untimely because the plaintiffs knew or should have known of the allegedly unlawful practice when they were denied parole any time after 1990, the year in which plaintiffs allege the improper procedures began. Defs.' Mot. 15. Defendants also argue that the Ninth Cause of Action, an Ex Post Facto Claim, is time barred for any class member whose parole was denied prior to October 7, 2006.
Section 1983 does not contain a statute of limitations, but courts apply the state statute of limitations for personal injury claims. Wilson v. Garcia, 471 U.S. 261, 279 (1985); McDougal v. County of Imperial, 942 F.2d 668, 672 (9th Cir. 1991). Prior to January 1, 2003, the statute of limitations that applies to § 1983 claims was one year, as then delineated in Cal. Civ. Proc. Code § 340(3). Id. The California legislature amended the statute of limitations for personal injury claims to two years, beginning January 1, 2003. See Cal. Civ. Proc. Code § 335.1.
In a § 1983 action, "a claim accrues when the plaintiff knows or has reason to know of the injury which is the basis of the action." Knox v. Davis, 260 F.3d 1009, 1013 (9th Cir. 2001). Defendants contend that each plaintiffs' claim accrued the first time they were denied parole pursuant to the allegedly unlawful practices. Plaintiffs contend that they may pursue their claims because the conditions complained of are a continuing violation. "A continuing violation is occasioned by continual unlawful acts, not by continual ill effects from an original violation." Ward v. Caulk, 650 F.2d 1144, 1147 (9th Cir. 1981); Ledbetter v. Goodyear, 550 U.S. 618 (superceded by statute on other grounds). That is to say, even if "some or all the events evidencing the inception of [an unconstitutional] practice or policy occurred prior to the

limitations period" the claim is not barred. De Grassi v.City of Glendora, 207 F3d. 636, 644 (9th Cir. 2000). While plaintiffs may not use a continuing violations theory to avoid the statute of limitations when only the lingering effect of a prior act remains, "Section 1983 is presumptively available to remedy a state's ongoing violation of federal law. A plaintiff has adequately pled an ongoing claim if she can show a systematic policy or practice that operated, in part, within the limitations period — a systematic violation." Mansourian v. Regents of the Univ. of Cal., 594 F.3d 1095, 1110 (9th Cir. 2010)(internal quotations and citations omitted). Here, of course, plaintiffs allege that the defendants have an ongoing policy of depriving inmates of their due process during the parole eligibility determination process.
Defendants cite Brown v. Georgia Bd. of Pardons & Paroles, 335 F.3d 1259, 1261 (11th Cir. 2003), which rejected a continuing violations theory asserted by an inmate who was first denied parole outside of the statute of limitations period, holding "that plaintiff's injury occurred when the Georgia Parole Board first applied its new policy to him in 1995, which was also when plaintiff could have discovered the factual predicate of his claim." This court must respectfully disagree with defendants contention. Even if plaintiffs were able to discover the factual predicate of their claims the first time they were denied parole, they are not necessarily barred. In the Ninth Circuit, use of the continuing violations doctrine has never been invalidated in the context of an unconstitutional policy or procedure. Moreover, as plaintiffs note, the Brown plaintiff was seeking to remedy a prior improper denial of parole, whereas the plaintiffs here seek only prospective relief.
IV. Conclusion
For the foregoing reasons, the court ORDERS as follows:
[1] Defendants' Motion for Judgment on the Pleadings, is GRANTED with respect to Claims 2, 4, 5, and 7 and The motion is DENIED with respect to all other claims.
IT IS SO ORDERED.
[1] See also Hamdi v. Rumsfeld, 542 U.S. 507, 533 (2004) (among the process due to citizen detainees seeking to challenge their classification as enemy combatants is a hearing "before a neutral decision-maker").
[2] Of course given the nature of the motion, the court makes no judgement of whether there is proof of a lack of a hearing conforming to the requisites of due process.

 
 RICHARD M. GILMAN, et al., Plaintiffs, v.
EDMUND G. BROWN, JR., et al., Defendants.
No. CIV. S-05-830 LKK/GGH.
United States District Court, E.D. California.
September 6, 2012.
ORDER
LAWRENCE K. KARLTON, Senior District Judge.
This is a certified class action brought by prisoners sentenced to life terms with the possibility of parole.
Plaintiffs have moved for leave to file an amended complaint deleting their remaining Due Process claims. Defendants oppose granting leave to amend on the grounds that the motion is untimely, and there is no good cause to grant the motion. For the reasons set forth below, the court will deny plaintiffs' motion to amend their complaint.
In addition, defendants have moved to de-certify all three plaintiff classes — one class for the remaining Due Process claims, and one class for each of the ex post facto claims — and for summary judgment on all claims. The court has scheduled those motions for hearing on September 14, 2012. At oral argument on plaintiffs' motion to amend the complaint however, plaintiffs stated that they did not oppose defendants' motion to de-certify the class certified for Claims 1, 3 and 6 (the remaining Due Process Claims). Accordingly, defendants' motion to decertify that class will be granted in this order.
I. BACKGROUND
Plaintiffs are three certified classes of "all California state prisoners who have been sentenced to a life term with possibility of parole." Order Amending Definitions of Certified Class (Dkt. No. 340) ¶¶ 1-3. Members of the first class (which relates to Claim 8, an ex post fact challenge), were sentenced "for an offense that occurred before November 4, 1998." Id., ¶ 1. Members of the second class (which relates to Claim 9, an ex post fact challenge), were sentenced "for an offense that occurred before November 8, 1988." Id., ¶ 2. Members of the third class (which relates to the remaining claims), "have reached eligibility for a parole consideration hearing." Id., ¶ 3.
The Fourth (Corrected) Complaint (Dkt. No. 175) alleges that defendants — the Governor and Parole Board officials — have engaged in unconstitutional policies and practices that have resulted in the state's failure to set a parole date for prisoners sentenced to life terms, despite California law's presumption that a parole date "shall normally" be set for them. Plaintiffs also allege that the California Victims' Bill of Rights Act of 2008 ("Proposition 9"), as well as

Proposition 89, amended the California Constitution so as to retroactively increase the plaintiffs' punishment, by increasing their terms of incarceration. Plaintiffs allege that these practices and laws violate their federal Due Process rights (Claims 1, 3 and 6), and subject them to increased penalties in violation of the ex post facto clause of the U.S. Constitution (Claims 8 and 9).[1]
On May 3, 2012, this court signed the Status (Pretrial Scheduling) Conference Order ("Scheduling Order," Dkt. No. 417). In compliance with the scheduling order, on August 7, 2012 defendants timely filed a motion for summary judgment, a motion to decertify the class and a request to seal documents (Dkt. Nos. 425, 426 & 439). Those motions were noticed to be heard on September 4, 2012.[2] The summary judgment motion is first directed to the surviving Due Process claims, which defendants assert were abandoned by plaintiffs, because plaintiffs proffered no evidence in support. The motion is next directed to the ex post facto claims, which defendants attack on the law.
On the same day (August 7th), plaintiffs timely filed a motion for summary judgment or for preliminary injunction (Dkt. No. 428). Plaintiffs' summary judgment motion makes no mention of the Due Process claims. It seeks judgment (or preliminary injunction) only on the ex post facto claims.
On August 21, 2012, plaintiffs filed a motion seeking leave to amend the complaint, together with a request for an order shortening the time for hearing the motion. The request to shorten the time for hearing the motion was necessary because, pursuant to the Local Rules and this court's calendar, the earliest a motion filed August 21, 2012 could otherwise be heard would be October 1, 2012, after the deadline set by the Scheduling Order.
II. ARGUMENTS
A. Plaintiffs — Leave To Amend Is Freely Granted
In their late-filed motion for leave to amend the complaint, plaintiffs are quite open about their failure to prosecute the Due Process claims that they now seek to delete from their complaint (Claims 1, 3 and 6), by amendment. Plaintiffs admit that it was not until after they had received defendants' motion for summary judgment on those claims that they decided it was time to drop them. Plaintiffs offer no explanation for why they did not move to delete those claims from the complaint in a timely manner.
Plaintiffs' only explanation for why they want to delete the claims by amendment — rather than by simply filing a Statement of Non-Opposition, by or stipulating to their dismissal — is that they wish to avoid the possible preclusive effect of non-opposition or voluntary dismissal. However, they offer no authority in support of the notion that they can avoid the preclusive effect of a dismissal or statement of non-opposition by amending the claims out of their complaint at this time.[3]

Nevertheless, plaintiffs argue that leave to amend should be granted now because under Fed. R. Civ. P. 15(a), leave to amend should be freely granted when justice so requires, and where defendants will suffer no prejudice.
B. Defendants — Leave To Amend After A Scheduling Order Is Granted Only with Good Cause.
Defendants argue that because the court has already issued a Scheduling Order, Fed. R. Civ. P. 16(b) applies, which bars further amendment of the pleadings except with "good cause." Defendants point out that plaintiffs have made no showing of good cause. Further, they assert that they will be prejudiced by having plaintiffs drop claims without consequences after defendants have litigated those claims for years.
III. LATENESS — SHOULD THE COURT CONSIDER THE MOTION TO AMEND?
Plaintiffs' request for an order shortening time asserted that if the remaining Due Process claims could not be deleted by amendment, their dismissal as part of defendants' summary judgment motion (or by stipulated dismissal) would have a preclusive effect on class members who might otherwise wish to proceed as individuals on those claims. Defendants' opposition to the request quite reasonably focused on plaintiffs' tardiness, and did not respond to plaintiffs' concerns about the preclusive effects of a stipulated dismissal or summary judgment relative to the Due Process claims.
The court determined that it would not forever preclude members of the plaintiff class from pursuing claims which this court had previously found might be meritorious, without further briefing on the matter. Accordingly, this court granted the request for an order shortening time. The motion for leave to amend the complaint was accordingly heard on September 4, 2012, before the Scheduling Order's September 16, 2012 deadline. Because the motion was scheduled and heard within the time specified by the Scheduling Order, the court will consider the motion.
However, the court notes that plaintiffs took an extraordinary risk by proceeding in the manner they did. Had the court denied the request for an order shortening time, plaintiffs could not have amended their complaint, and their own conduct might well have brought down upon them the preclusive consequences they seek to avoid (assuming their concerns about preclusion of the Due Process claims are well founded).
The court cautions all counsel appearing before this court that requests for orders shortening time are not routinely granted. Accordingly, such requests may not be relied upon to rescue counsel or their clients from the consequences of failing to comply with a scheduling order or any other order of this court.
IV. STANDARDS

A. Which Standard Applies — Rule 15(a)'s or Rule 16(b)'s?
Rule 15(a) provides that in all cases other than those in which the complaint can be amended as a matter of course,[4] or where the opposing party gives written consent, the complaint may be amended only with the court's leave. Fed. R. Civ. P. 15(a)(2). Moreover, "[T]he court should freely give leave when justice so requires." Id. Defendant argues that the more stringent "good cause" standard of Rule 16(b) applies, not the more lenient standard of Rule 15(a).
Defendants are correct, although not for the reasons they argue. Defendants argue that in this circuit, "a request for leave to amend after the entry of a Rule 16 Scheduling Order is governed primarily by Rule 16(b)," which permits amendment only upon a showing of "good cause," citing Johnson v. Mammoth Recreations, Inc., 975 F.2d 604 (9th Cir. 1992). In fact, the Ninth Circuit has expressly rejected this interpretation of Johnson:
Federal Rule of Civil Procedure 16 has no effect on the operation of Federal Rule of Civil Procedure 15(a) principles in this case. In Johnson v. Mammoth Recreations, Inc., 975 F.2d 604 (9th Cir.1992), we held that Rule 15(a) did not apply, not because Rule 15 is trumped by Rule 16 once the district court filed a pretrial scheduling order, but rather because the party in Johnson had failed to file his motion to join additional parties within the period of time set in the district court's scheduling order. Id. at 607-08.
AmerisourceBergen Corp. v. Dialysist West, Inc., 465 F.3d 946, 952 (9th Cir. 2006).
Thus, the Ninth Circuit rule is that Rule 16(b)'s "good cause" standard applies only after the court "ha[s] filed a pretrial scheduling order that established a timetable for amending the pleadings, and the deadline ha[s] expired before [the moving parties] moved to amend." Coleman v. Quaker Oats Co., 232 F.3d 1271, 1294 (9th Cir. 2000), cert. denied, 533 U.S. 950 (2001), citing Johnson, 975 F.2d at 607-09.[5]
However, defendants are correct that Rule 16(b) applies here. The reason is that according to the Scheduling Order, the deadline for amending the complaint expired on May 3, 2012, the date of the Scheduling Order itself:
No further joinder of parties or amendments to pleadings is permitted except with leave of court, good cause having been shown. See Johnson v. Mammoth Recreations, Inc., 975 F.3d 604 (9th Cir. 1992).
Since plaintiffs' motion to amend was filed and heard after May 3, 2012, the deadline set by the Scheduling Order, it is governed by the "good cause" standard of Rule 16(b).
B. Rule 16(b).
Under Rule 16(b), the court may grant the motion to amend only if plaintiffs show "good cause" for it. Plaintiffs offer two reasons for granting leave to amend.[6] First, plaintiffs wish to avoid the preclusive effect on individual class members of suffering a summary judgment on (or dismissal

of) the remaining Due Process claims. However, the court has already determined that it will, in this order, decertify the remaining Due Process classes. With no class certification, it does not appear that the former class members will be precluded from pursuing their claims individually. Accordingly, this concern of plaintiffs is moot.
Second, plaintiffs assert that deleting the remaining Due Process claims would "promote the more efficient adjudication of the case by narrowing the focus of the parties and the court on the central areas of dispute." However, plaintiffs have already accomplished this goal by conceding that they have abandoned the remaining Due Process claims, and by not opposing defendants' motion for summary judgment on those claims. By their conduct, plaintiffs have eliminated the Due Process claims from consideration. Absent some extraordinary and unexpected change in circumstances, defendants' motion for summary judgment on those claims will likely be granted without further effort on anyone's part.
Meanwhile, defendants have made a convincing case of plaintiffs' "lack of diligence," "careless[ness]" in failing to move to amend the complaint earlier, unjustifiable failure to prosecute their case, and that plaintiffs simply "sat on their hands" all this time.
The court concludes that plaintiffs have shown no "good cause" for permitting amendment of their complaint.
IV. CONCLUSION
For the reasons set forth above
1. Defendants' unopposed motion to de-certify the class for Claims 1, 3 and 6 — "all California state prisoners who have been sentenced to a life term with possibility of parole and have reached eligibility for parole consideration hearing" — is hereby GRANTED;[7] and
2. Plaintiffs' motion to amend the complaint (Dkt. No. 432), is hereby DENIED.
IT IS SO ORDERED.
[1] This court previously dismissed or granted judgment on the pleadings for the remaining Due Process claims (Claims 2, 4, 5 and 7), and the Due Process portion of Claim 8 (Dkt. Nos. 217 & 420).
[2] The Scheduling Order states that Law & Motion must be completed by September 16, 2012.
[3] Plaintiffs assert that "[f]or the reasons already articulated by this Court when it denied Defendants' motion for judgment on the pleadings as to the remaining due process claims, Plaintiffs' counsel cannot take a position that could potentially bar future individual plaintiffs from pursuing whatever post-Cooke due process relief remains." No such discussion appears in the referenced order (Dkt. No. 420). If plaintiffs are referring to a discussion that occurred during oral argument, they should direct the court's attention to the transcript, which they have not done.
[4] A party may amend the complaint once "as a matter of course," if it does so within 21 days of filing the initial complaint, or within 21 days of being served with certain Rule 12 motions. See Fed. R. Civ. P. 15(a)(1). This Rule is not applicable to this motion, filed years after the initial complaint was filed.

[5] Accord, Ziptronix, Inc. v. Omnivision Technologies, Inc., 2012 WL 3155554 at *1 (N.D. Cal. 2012) (Armstrong, J.) ("under Rule 16(b), once the deadline for amending pleadings established in a court's pretrial scheduling order passes, a party may amend its pleadings `only for good cause and with the judge's consent'").
[6] The court notes that plaintiffs offered these explanations under the mistaken belief that their motion would be governed by the lenient standards of Rule 15(a).
[7] In granting this unopposed motion, the court does not address or adopt any of defendants' legal arguments for decertifying the class. The remainder of defendants' de-certification motion — to decertify the classes for Claims 8 and 9 — is currently scheduled for hearing on September 14, 2012.

 
 RICHARD M. GILMAN, et al., Plaintiffs, v.
EDMUND G. BROWN, JR., et al., Defendants.
No. CIV. S-05-830 LKK/GGH.
United States District Court, E.D. California.
May 6, 2013.
ORDER
LAWRENCE K. KARLTON, District Judge.
Plaintiffs are members of two certified classes of California state prisoners who have been sentenced to life terms with the possibility of parole. See Order Amending Definitions of Certified Class (ECF No. 340) ¶ 2.[1] The first certified class of plaintiffs were sentenced to life terms for offenses that occurred before November 4, 2008. On that date, Proposition 9 increased the interval between parole hearings available to these prisoners from a default period of one year (with a maximum of two, three or five years), to a default period of fifteen years (with a minimum of three years). The second certified class of plaintiffs were sentenced to life terms for offenses that occurred before November 8, 1988. On that date, Proposition 89 gave the Governor authority to reverse any parole board decision finding a life term prisoner "suitable" for parole. Such parole board decisions had previously been final.
Plaintiffs' two surviving claims assert that Propositions 9 (Claim 8) and 89 (Claim 9), violate their rights under the Ex Post Facto Clause of the U.S. Constitution, U.S. Const., art. I, § 10.[2] Defendants move to decertify the classes.[3] They also seek summary judgment on both claims.[4] Plaintiffs oppose summary judgment on both claims, and cross-move for summary judgment on their Proposition 89 claim, or in the alternative, for a preliminary injunction on that claim.
For the reasons that follow, the court will deny all the pending motions.[5]
I. CALIFORNIA PAROLE.
Plaintiff life prisoners are eligible for parole after serving a statutorily-defined minimum number of years. See Cal. Penal Code § 3046(a) (setting minimum terms for "prisoner imprisoned under a life sentence"). The power to grant parole and set release dates lies with the Board of Parole Hearings (formerly the Board of Prison Terms).[6] In re Vicks, 56 Cal. 4th 274, 294 (2013); Lawrence, 44 Cal. 4th at 1201. Once a life prisoner is eligible for parole, it is up to the Board to determine whether he is "suitable" for parole. See Cal. Penal Code § 3041(b). Suitability is determined at a hearing before a Board commissioner and deputy commissioner. Id. The first hearing to determine suitability occurs one year before eligibility. Id., § 3041(a) (one year prior to "minimum eligible parole release date," the Board of Parole Hearings shall "normally set a parole release date"). The Board is required to find a prisoner "suitable" for parole, and to set a

release date, unless it finds that he is a current danger to the community, in which case, it must find that he is "unsuitable" for parole. Lawrence, 44 Cal. 4th at 1204 (the governing statute provides that "`the Board must grant parole unless it determines that public safety requires a lengthier period of incarceration'"). (emphasis in text), quoting In re Rosenkrantz, 29 Cal. 4th 616 (2002). Cal. Penal Code § 3041(b) (the Board "shall normally set a parole release date" at the parole hearing); Cal. Admin. Code, tit. 15, § 2281(a) ("a life prisoner shall be found unsuitable for and denied parole if in the judgment of the panel the prisoner will pose an unreasonable risk of danger to society if released from prison"). Plaintiffs' constitutional challenges arise once the Board decides whether the prisoner is either "suitable" or "unsuitable" for parole.
A. Proposition 9.[7]
If the Board finds the prisoner "unsuitable" for parole, it sets a deferral period before the prisoner will next be considered for parole. Cal. Penal Code § 3041.5(b)(3). Prior to the passage of Proposition 9, the default deferral period was one (1) year. See [former] Cal. Penal Code § 3041.5(b)(2) (1995). That is, plaintiffs were entitled to an annual parole hearing, unless the Board made written findings that a longer deferral period was warranted. Id. ("The board shall hear each case annually" after the initial parole hearing, absent a board finding "that it is not reasonable to expect that parole would be granted" during the following year or years). Even if a longer deferral period was warranted, however, the Board could only defer the next hearing for two years, or for a maximum of five years.[8] See id.
Proposition 9, "Marsy's Law," enacted in November 2008, amended section 3041.5 "to increase the time between parole hearings, absent a finding by the Board that an earlier hearing is appropriate." Vicks, 56 Cal. 4th at 283. Indeed it dramatically changed the timing and process for prisoners' parole hearings when it was enacted in November 2008. Specifically, the law increased the default interval between hearings to fifteen years (abolishing the annual review), increased the minimum deferral period to three years (from one year), increased the maximum deferral period to fifteen years (from five years), shifted the burden from the Board to the prisoner to show that the default deferral period should not be used, and then imposed a higher burden of proof, now requiring the prisoner to show by "clear and convincing" evidence that the default deferral period should not be used. Cal. Penal Code § 3041.5(b)(3); Vicks, 56 Cal. 4th at 284.
In addition, Proposition 9 expressly provided for an "advance hearing," pursuant to which a prisoner could request a parole hearing sooner than the default 15 year period would have allowed. Id., § 3041.5(d); Vicks, 56 Cal. 4th at 284-85. A prisoner can make an advance hearing request "at any time" after a denial of parole at a regularly scheduled parole hearing, and then every three years thereafter. Cal. Penal Code § 3041.5(d)(1) (advance hearing request procedure), (d)(3) (three-year restriction); Vicks, 56 Cal. 4th at 286 ("a prisoner may make his or her first request for a new hearing at any time following the denial of parole at a regularly scheduled hearing, and then may make another request every three years").
B. Proposition 89.

If the Board finds the prisoner "suitable" for parole, it sets a parole release date, using standards prescribed by law and regulation. Cal. Penal. Code § 3041(a).[9] Panel decisions granting parole are reviewed by the Board's chief counsel (or designee). Id. During the review process, the chief counsel prepares a written report on each case in which parole has been granted. Plaintiffs' Statement of Undisputed Facts in Support of Plaintiffs' Motion for Summary Judgment ("PSUF") (ECF No. 428-3) ¶ B.[10] Known as the "Executive Case Summary" (ECS), the report is an overview of the prisoner's central prison files as well as the evidence and the findings from the hearing that resulted in a parole grant. Id. Each ECS includes information about the prisoner's term, as set by the panel that granted parole, as well as the calculated release date for the prisoner based on that term. Id. At the time the offenses were committed, the Board's parole decisions were not subject to gubernatorial review. Defendants' Statement of Undisputed Facts in Support of their Motion for Summary Judgment ("DSUF") (ECF No. 425 at 47-52)[11] ¶ 20.
Article V, section 8 of the California Constitution was amended by the voters with the passage of Proposition 89 on November 8, 1988. DSUF ¶ 19. Proposition 89 added subdivision (b) to allow the Governor a 30-day period to "affirm, modify or reverse" any decision of the Board of Parole Hearings (the "Board"), "with respect to the granting, denial, revocation, suspension or parole of a person sentenced to an indeterminate term upon a conviction of murder. . . ." Id.[12]
As part of his review, the Governor receives the Executive Case Summary for the prisoner. PSUF ¶ D. The Governor's review authority is neutral, under the amendment, and allows him to review denials as well as grants of parole. Id. However, from 1991 through 2010, the Governor reviewed only three decisions denying parole, affirming all three. Id. During that same period, the Governor reversed 1,255 grants of parole made to prisoners who were convicted of murder before Proposition 89 passed. Id. ¶ E. These reversals represent more than 70 percent of the Board's grants of parole made to prisoners with murder convictions. PSUF ¶ E. At the time the Governor acted in those cases, over 90 percent of the prisoners were beyond their calculated release dates. Had the Governor not reversed the grants, those prisoners would have been immediately released; because of the Governor's reversal, however, the prisoners remained in custody. Id.
After passage of Proposition 89, named class members James Masoner, Richard W. Brown, Edward Stewart, Mario Marquez, Richard Lewis and Gloria Olson, were found suitable for parole by the Board. DSUF ¶ 21. The Governor, exercising his authority under Proposition 89, reversed the Board's decisions regarding these plaintiffs. Id.
II. STANDARDS
A. Summary Judgment.
Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); Ricci v. DeStefano, 557 U.S. 557, 586, 129 S. Ct. 2658, 2677 (2009) (it is the movant's burden "to demonstrate that there is `no genuine issue as to any material fact' and that they are `entitled

to judgment as a matter of law'"); Walls v. Central Contra Costa Transit Authority, 653 F.3d 963, 966 (9th Cir. 2011) (per curiam) (same).
Consequently, "[s]ummary judgment must be denied" if the court "determines that a `genuine dispute as to [a] material fact' precludes immediate entry of judgment as a matter of law." Ortiz v. Jordan, 562 U.S. ___, 131 S. Ct. 884, 891 (2011), quoting Fed. R. Civ. P. 56(a); Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, 657 F.3d 936 (9th Cir. 2011) (en banc) (same), cert. denied, 132 S. Ct. 1566 (2012).
Under summary judgment practice, the moving party bears the initial responsibility of informing the district court of the basis for its motion, and "citing to particular parts of the materials in the record," Fed. R. Civ. P. 56(c)(1)(A), that show "that a fact cannot be . . . disputed." Fed. R. Civ. P. 56(c)(1); Nursing Home Pension Fund, Local 144 v. Oracle Corp. (In re Oracle Corp. Securities Litigation), 627 F.3d 376, 387 (9th Cir. 2010) ("The moving party initially bears the burden of proving the absence of a genuine issue of material fact"), citing Celotex v. Catrett, 477 U.S. 317, 323 (1986).
However, "[w]here the non-moving party bears the burden of proof at trial, the moving party need only prove that there is an absence of evidence to support the non-moving party's case." Nursing Home Pension Fund, Local 144 v. Oracle Corp. (In re Oracle Corp. Securities Litigation), 627 F.3d 376, 387 (9th Cir. 2010).
If the moving party meets its initial responsibility, the burden then shifts to the non-moving party to establish the existence of a genuine issue of material fact. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986); Oracle Corp., 627 F.3d at 387 (where the moving party meets its burden, "the burden then shifts to the non-moving party to designate specific facts demonstrating the existence of genuine issues for trial"). In doing so, the nonmoving party may not rely upon the denials of its pleadings, but must tender evidence of specific facts in the form of affidavits and/or other admissible materials in support of its contention that the dispute exists. Fed. R. Civ. P. 56(c)(1)(A).
"In evaluating the evidence to determine whether there is a genuine issue of fact," the court draws "all reasonable inferences supported by the evidence in favor of the non-moving party." Walls, 653 F.3d at 966. Because the court only considers inferences "supported by the evidence," it is the non-moving party's obligation to produce a factual predicate as a basis for such inferences. See Richards v. Nielsen Freight Lines, 810 F.2d 898, 902 (9th Cir. 1987). The opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts . . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no `genuine issue for trial.'" Matsushita, 475 U.S. at 58687 (citations omitted).
B. Preliminary Injunction.
Fed. R. Civ. P. 65 provides authority to issue a preliminary injunction. However, it is an "extraordinary remedy, never awarded as of right." Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 24 (2008).

A plaintiff seeking a preliminary injunction must establish [1] that he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest.
Rodriguez v. Robbins, ___ F.3d ___, 2013 WL 1607706 at *2, 2013 U.S. App. LEXIS 7565 at *10-*11 (9th Cir. 2013), quoting Winter, 555 U.S. at 20.
C. Class Decertification.
Class certification is proper, and therefore may withstand a motion to decertify, only "if the trial court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied." General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 161 (1982). The Federal Rules provide:
One or more members of a class may sue or be sued as representative parties on behalf of all members only if: (1) the class is so numerous that joinder of all members is impracticable ["numerosity"];(2) there are questions of law or fact common to the class ["commonality"]; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class ["typicality"]; and (4) the representative parties will fairly and adequately protect the interests of the class ["adequacy" (of representation)].
Fed. R. Civ. P. 23(a). In addition, class certification is proper only if "at least one of the requirements of Rule 23(b)" is satisfied. Ellis v. Costco Wholesale Corp., 657 F.3d 970, 979-80 (9th Cir. 2011). Here, the class was certified under Rule 23(b)(2), which provides:
A class action may be maintained if Rule 23(a) is satisfied and if: . . . the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.
Fed. R. Civ. P. 23(b)(2). The court must be satisfied that the party that bears the burden has "affirmatively demonstrate[d]" that "there are in fact sufficiently numerous parties, common questions of law or fact, etc." Wal-Mart Stores, Inc. v. Dukes, 564 U.S. ___, 131 S. Ct. 2541, 2551-52 (2011).[13]
III. ANALYSIS — EX POST FACTO CLAUSE.
The ex post facto prohibition forbids the Congress and the States to enact any law "which imposes a punishment for an act which was not punishable at the time it was committed; or imposes additional punishment to that then prescribed."
Weaver v. Graham, 450 U.S. 24, 28 (1981); CDC v. Morales, 514 U.S. 499, 504 (1995) ("Article I, § 10, of the Constitution prohibits the states from passing any `ex post facto law'"), Lynce v. Mathis, 519 U.S. 433, 441 (1997) ("To fall within the ex post facto prohibition, a law . . . `must disadvantage the offender affected by it,' by . . . increasing the punishment for the crime") (citations omitted). "The ban also restricts governmental power by restraining arbitrary and

potentially vindictive legislation." Id., 450 U.S. at 29. A "central concern" of the Ex Post Facto Clause is "`the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was consummated.'" Lynce, 519 U.S. at 895-96. "Retroactive changes in laws governing parole of prisoners, in some instances, may be violative of this precept." Garner, 529 U.S. at 249-250 (involving increases in intervals between parole consideration dates).
IV. ANALYSIS — PROPOSITION 9 (Claim 8).
Plaintiffs challenge Proposition 9, as it applies to them, asserting that the law — by increasing the deferral period between parole hearings — "has created a risk of increased terms to life prisoners" in violation of the Ex Post Facto Clause. See Plaintiffs' Opposition to Defendants' Motion for Summary Judgment ("Pl. Opp. to D. SJ") (ECF No. 435) at 6.[14] Plaintiffs further argue that the availability of "advance hearings" does not cure the constitutional deficiency. Id.
A. Retrospective Increases in Intervals Between Parole Hearings.
1. Morales v. California Dep't of Corrections.
In 1994, the Ninth Circuit considered an Ex Post Facto Clause challenge to an earlier change in California parole law. See Morales v. California Dep't of Corrections, 16 F.3d 1001 (9th Cir. 1994). The change allowed the parole board to avoid the previously required annual parole hearings, and to increase the interval between hearings to up to five years, if the board found that parole was unlikely to be granted during the interval. Id., at 1004. The Ninth Circuit held that the law change, as applied retrospectively, violated the Ex Post Facto Clause:
By increasing the interval between parole hearings, the state has denied Morales opportunities for parole that existed under prior law, thereby making the punishment for his crime greater than it was under the law in effect at the time his crime was committed. . . . [A]ny retrospective law making parole hearings less accessible would effectively increase the sentence and violate the ex post facto clause.
Id., at 1004.
The Supreme Court reversed. California Dep't of Corrections v. Morales, 514 U.S. 499 (1995). It concluded that "the evident focus of the California amendment was merely `to relieve the [Board] from the costly and time-consuming responsibility of scheduling parole hearings for prisoners who have no reasonable chance of being released.'" Id., at 507 (internal quotation marks omitted). The Court rejected the Ex Post Facto challenge because the law change:
creates only the most speculative and attenuated possibility of producing the prohibited effect of increasing the measure of punishment for covered crimes, and such conjectural effects are insufficient under any threshold we might establish under the Ex Post Facto Clause.

Id., 514 U.S. at 509. In explaining its decision, however, the Court identified several factors that defeated the Ex Post Facto challenge. First, the change in law addressed in Morales applied "only to a class of prisoners for whom the likelihood of release on parole is quite remote." Id., at 510.
Second, the change in law was "carefully tailored" so that it had "no effect on any prisoner" unless the Board had first concluded, after a hearing, "not only that the prisoner is unsuitable for parole, but also that `it is not reasonable to expect that parole would be granted at a hearing during the following years.'" Id., at 511. Importantly, the Board retained "the authority to tailor the frequency of subsequent suitability hearings to the particular circumstances of the individual prisoner," Id., at 511, which included the possibility that it could conduct subsequent parole hearings annually, as was possible before the law change.[15]
Moreover, the Court noted that in addition to the safeguards it had identified, "`the Board could advance the suitability hearing.'" Id., at 512.[16] The Court found that the possibility of such an "expedited hearing by the Board — either on its own volition or pursuant to an order entered on an administrative appeal — would remove any possibility of harm even under the hypothetical circumstances suggested by respondent." Id., at 512-13.
2. Garner v. Jones.
A few years after Morales, the Eleventh Circuit was faced with a change in Georgia law that increased the interval between parole hearings from three years to eight years. See Jones v. Garner, 164 F.3d 589 (11th Cir. 1998). Fully aware of the decision in Morales, the Eleventh Circuit found that the change in law that it faced was entirely different from that effected in Morales. The grounds of distinction were, that the Georgia prisoners were not those only "remotely" likely to be paroled, unlike those in Morales; and the interval between parole hearings was not "finely tailored," as in Morales, because it was simply increased to one hearing every eight years. Jones, 164 F.3d at 590 ("After Jones was incarcerated, but before he was initially considered for parole, the Board amended its rules to require that parole reconsideration take place only once every eight years"). Finally, the Eleventh Circuit distinguished Morales after determining that the Georgia prisons' policy statements regarding "expedited" hearings were "unenforceable and easily changed, and adherence to them is a matter of the Board's discretion." Id., at 595.
The Supreme Court reversed. Garner v. Jones, 529 U.S. 244 (2000). It found that the grounds of distinction the Eleventh Circuit relied upon were not dispositive, because the question still remained "whether the amended Georgia Rule creates a significant risk of prolonging respondent's incarceration." Id., 529 U.S. at 255. The Court found that the record in that case did not show that such a risk existed. Rather, the Court held that the parole board had discretion on how often to grant a parole hearing, so long as one was held at least once every eight years. Id., 529 U.S. at 254.
Moreover, the Court concluded that prisoners had the ability to seek an advance hearing. The Court found that pursuant to its formal policies, the parole board would consider requests for advance hearings where the prisoners made a showing "of a `change in their circumstances' or upon the Board's receipt of `new information.'" Id., 529 U.S. at 257. The Court determined that it

was error for the Eleventh Circuit to not consider the effect of the availability of advance hearings on the likelihood that a prisoner's incarceration would be lengthened beyond the term imposed when the crime was committed.
3. Gilman v. Schwarzenegger
On February 4, 2010, this court granted a preliminary injunction to plaintiffs in this case. Gilman v. Davis, 690 F. Supp. 2d 1105 (E.D. Cal. 2010) (Karlton, J.). The court distinguished Morales and Garner. First, unlike the law change in Morales, Proposition 9 increased the interval between parole hearings for every member of the plaintiff class, no matter what his circumstances, no matter how quickly he may be progressing toward suitability for parole, and no matter how willing the Board might be to grant him more frequent parole hearings. The ability of the Board to "tailor" the parole hearing deferral to the facts before them — so critical to the decision in Morales — was missing in Proposition 9. See Gilman, 690 F. Supp. 2d at 1120. Even with the availability of advance hearings, class members can secure a parole hearing no more frequently than every three years.[17]
Second, the court found that class members here were not uniformly unlikely to be granted parole during the default deferral period. See Gilman, 690 F. Supp. 2d at 1120. This further distinguished these plaintiffs from those in Morales, who faced only a "remote" chance of parole.
Finally, the court found that the theoretical availability of advance hearings were not sufficient to overcome an Ex Post Facto challenge. The court found that "[a]t the time these motions were argued, there was no mechanism in place for initiating or accepting petitions to advance a hearing." Id., at 1121. Further, the court found that an ad-hoc advance hearing system was insufficient to overcome the challenge, and that such a system itself created a significant risk of increasing the plaintiffs' incarceration because of the delays inherent in that system. Id., at 112122.[18] Accordingly, this court found that the changes brought about by Proposition 9 "create a risk of prolonged incarceration, and plaintiffs are likely to succeed in showing that this risk is significant despite the possible availability of advanced hearings." Id., at 1124.
The Ninth Circuit reversed. Gilman v. Schwarzenegger, 638 F.3d 1101 (9th Cir. 2011). The Ninth Circuit agreed that "the changes required by Proposition 9 appear to `create[] a significant risk of prolonging [Plaintiffs'] incarceration.'" Id., at 1108. However, even assuming that this significant risk did exist, the Ninth Circuit concluded that:
Here, as in Morales, an advance hearing by the Board "would remove any possibility of harm" to prisoners because they would not be required to wait a minimum of three years for a hearing.
Id., at 1108, quoting Morales, 514 U.S. at 513. Gilman held that a preliminary injunction in the case was not warranted because plaintiffs failed to present any evidence that the advance hearing was insufficient protection.
On appeal, plaintiffs pressed their objection that the decision whether to grant an advance hearing was purely discretionary with the Board, and that the Board could deny an advance hearing even where the prisoner had made the required showing that he was now suitable for

parole. The Ninth Circuit rejected the objection because plaintiffs failed to produce any evidence to counter the presumption "that the Board will, upon request, schedule advance hearings for prisoners who become suitable for parole prior to their scheduled hearings." Gilman, 638 F.3d at 1109-10.[19]
B. Defendants' Motion for Summary Judgment, Proposition 9.
Defendants move for summary judgment. They argue first, that Proposition 9 is the type of procedural change that is not covered by the Ex Post Facto clause, and that in any event, plaintiffs can produce no evidence showing that Proposition 9 in fact creates a "significant risk" of increasing the class members' incarceration. See Defendants' Motion for Summary Judgment ("Defendants' Motion") (ECF No. 425) at 14-20. Defendants argue second, that the availability of the "advance hearing" process "necessarily defeats plaintiffs' claim." Id., at 20-25.
In opposing defendants' motion for summary judgment, plaintiffs argue that the existence of advance hearings is insufficient to cure the constitutional violation: the Board's discretion in granting advance hearings is so broad that it could deny an advance hearing even if the prisoner showed that he was suitable for parole; Proposition 9 does not permit the fine "tailoring" of deferral periods that were critical to the decisions in Garner and Morales; and the rate of summary denials of advance hearing petitions is so high that it cannot rescue Proposition 89 from an ex post facto violation.
1. "Procedural" changes.
Defendants weakly argue that Proposition 9 effected "procedural" changes, and thus, under Morales and Garner, they are immune to challenge under the Ex Post Facto Clause. The court does not agree. Morales and Garner did not find that increasing intervals between parole hearings passed muster under the Ex Post Facto Clause because they only effected a "procedural" change. Rather, they rejected the claims because petitioners failed to show that the law increasing intervals between parole hearings — even if "procedural" — created a significant risk of increased incarceration. See Gilman, 638 F.3d at 1106 ("A retroactive procedural change violates the Ex Post Facto Clause when it `creates a significant risk of prolonging [an inmate's] incarceration"), quoting Garner, 529 U.S. at 251. The claims were not rejected merely because the changes were "procedural."
Defendants make a more energetic argument regarding "procedural" changes in their motion for summary judgment on the Proposition 89 claim, and so it is further discussed there.
2. Advance Hearings and Evidence of Significant Risk of Increased Incarceration.

Defendants assert that the availability of advance hearings necessarily defeats the Proposition 9 claim, citing Morales, Garner and Gilman. In fact, the Ninth Circuit has already ruled, in an appeal from this case, that:
as in Morales, an advance hearing by the Board "would remove any possibility of harm" to prisoners because they would not be required to wait a minimum of three years for a hearing.
Gilman, 638 F.3d at 1109. Plaintiffs assert several reasons why the Ninth Circuit's decision does not defeat their claim.
a. Discretion under Cal. Penal Code § 3041.5(b)(4).
Plaintiffs, citing Cal. Penal Code § 3041.5(b)(4), argue that advance hearings are inadequate because the Board may, in its discretion, legally decline to advance a hearing, even when the prisoner has made the required showing:
the Board's discretion in ruling on advanced hearing requests is so broad that the Board may legally deny an advanced hearing even if the prisoner establishes new information/changed circumstances and a reasonable likelihood of a parole grant.
Pl. Opp. to DSJ at 4; Plaintiffs' Statement of Undisputed Facts No. 15 (asserting that the Board "may, in its discretion, decline to advance a hearing" even if the prisoner makes the required showing, citing Cal. Penal Code § 3041.5(b)(4)).
This argument fails for several reasons. First, the language of the statute is not probative of plaintiffs' assertion that the Board does in fact deny advance hearings despite the prisoner's having made the required showing. The statute provides only that the Board "may" grant an advance hearing once the required showing is made:
The board may in its discretion, after considering the views and interests of the victim, advance a hearing set pursuant to paragraph (3) to an earlier date, when a change in circumstances or new information establishes a reasonable likelihood that consideration of the public and victim's safety does not require the additional period of incarceration of the prisoner provided in paragraph (3).
Cal. Penal Code § 3041.5(b)(4). The statute does not authorize the Board to decline to grant an advance hearing once the prisoner has made the required showing, nor is such authorization a reasonable inference from the statutory language.
Second, the Board cannot "legally" deny an advance hearing once the prisoner makes the required showing, as that would be an abuse of its discretion:
If the change in circumstances or new information establishes that there is no longer an evidentiary basis for concluding the prisoner is a current threat to public safety, the Board will abuse its discretion if it declines to advance the hearing date and find the prisoner suitable for parole.

Vicks, 56 Cal. 4th at 311;[20] see also Gilman, 638 F.3d at 1109-10 (referring to the presumption that the Board will properly exercise its discretion); Gilman v. Davis, 690 F. Supp. 2d at 1122 (rejecting plaintiffs' identical argument made at the preliminary injunction stage, this court states: "I must assume that the Board will exercise a neutral grant of discretion in a manner consistent with the Ex Post Facto Clause").
Finally, the evidence the parties have presented indicates that the Board instructs its decisionmakers to deny the advance hearing only if the prisoner fails to make the required "prima facie" showing. See, e.g., Plaintiffs' Preliminary Injunction Hearing Exhibit 35 (ECF No. 341-3) (setting forth grounds for summary denial); Preliminary Injunction Hearing Transcript (ECF No. 347) 25-28 (Testimony of Sue Facciola) ("Facciola Test.") (establishing that summary denials occur only if prisoner fails to make a prima facie case for an advance hearing). Plaintiffs have introduced no contrary evidence to show, for example, that the Board decision-makers fail to follow the instructions they received.
Accordingly, this argument is insufficient to stave off summary judgment on the Proposition 9 claim.
b. Three-year interval for advance hearings.
Plaintiffs argue that the advance hearings are insufficient because the Board "has no discretion since Proposition 9 to set a deferral period of less than three years no matter how appropriate it believes a deferral of one or two years is." Plaintiffs' Opposition at 3 n.3. The decisions in Morales and Garner turned, at least in part, on the fact that the parole board "retains the authority to tailor the frequency of subsequent suitability hearings to the particular circumstances of the individual prisoner." Morales, 514 U.S., at 511.
The California Supreme Court has clarified that "a prisoner may make his or her first request for a new hearing at any time following the denial of parole at a regularly scheduled hearing, and then may make another request every three years." Vicks, 56 Cal. 4th at 286 (emphasis added). Thus if the advance hearing follows a deferral of three years, the Board must consider granting a hearing less than three years into the future.
However, plaintiffs are correct that the request for an advance hearing can be made only once every three years. Vicks, 56 Cal. 4th at 286.[21] Thus, the Board cannot grant, for example, annual parole hearings. As such, Proposition 9 is missing a key ingredient upon which the constitutionality of the enactments in Morales and Garner turned. Plaintiffs should be permitted at trial to show that this missing ingredient in fact creates a significant risk that their incarceration will be prolonged.
c. Statistical evidence of the "safety net."
Plaintiffs assert that the advance hearing procedures fail to "catch" those prisoners who deserve advance hearings, that is, those prisoners who have moved from unsuitability to suitability for parole. Pl. Opp. to DSJ at 4-5. Plaintiffs have now presented evidence that of 119 advance

hearing petitions filed after Proposition 9, 106 of them — or over 90% — were "summarily denied." See Plaintiffs' Statement of Additional Material Facts ("PSUF-Additional") (ECF No. 435-3) Nos. 17 & 18.[22]
In essence, plaintiffs are arguing that notwithstanding the Board's legal obligation to grant an advance hearing when a prisoner makes the proper showing, the evidence shows that the Board nevertheless denies such hearings, using the summary denial process. The Ninth Circuit rejected this argument on appeal from the preliminary injunction, but it did so on the grounds that plaintiffs had "adduced no evidence that the Board has denied a request for an advance hearing where a prisoner has shown a change in circumstances or new evidence." Gilman, 638 F.3d at 1109.
However, plaintiffs have now adduced evidence from which this court can infer that the Board has denied advance hearings even where a prisoner has shown the required change in circumstances. First, as noted, 90% of advance hearing petitions are summarily denied. PSUFAdditional ¶ 17.[23] Second, plaintiffs have presented evidence that of these, some number of prisoners have shown — at least sufficiently to avoid summary judgment — that they were, in fact, suitable for parole. PSUF-Additional ¶¶ 39 & 41.[24]
Specifically, plaintiffs' evidence shows that class plaintiffs Henry Bratton and James Alexander were denied parole and given three-year deferrals. Id. Their requests for advance hearings were then summarily denied.[25] Id., ¶ 42. These plaintiffs nevertheless managed to get hearings before the three-year interval for other reasons, and both were granted parole at those early hearings. Id., ¶¶ 39 & 41. Plaintiffs do not present direct evidence that the summary denial process itself was invalid or constitutionally tainted. Accordingly, plaintiffs ask the court to infer strictly from the results — over 90% summary denials, at least some number of which were of prisoners who had in fact reached suitability — that the advance hearing process is insufficient to avoid the Ex Post Facto violation.
The court believes that it is a reasonable inference from these undisputed facts that there is something wrong with the advance hearing process. The court of course, is required to draw all reasonable inferences for plaintiffs, who oppose summary judgment on this claim. Without further development of the evidence, the court cannot say that the "something wrong" is a flaw in the advance hearing process,[26] an unwillingness on the part of the Board to grant advance hearings even when a prisoner has made the required showing, or even something having no constitutional relevance. Plaintiffs are entitled to make their case on this point at trial. Accordingly, summary judgment on Proposition 9 will be denied.[27]
V. ANALYSIS — PROPOSITION 89 (Claim 9).
Plaintiffs challenge Proposition 89 as it is applied to them, because it gives the Governor the power to reverse parole grants from the Board, which had previously been final with the Board.[28] In Johnson v. Gomez, the Ninth Circuit found that Proposition 89 "simply removes final parole decisionmaking authority from the BPT and places it in the hands of the governor." 92 F.3d at 967.[29]

The enactment was neutral, the court found, because it gives the governor the power to affirm or reverse the board, and further, "the governor must use the same criteria as" the Board. Id. The court indicated that an ex post facto challenge to Proposition 89 could succeed only if plaintiffs could show "with certainty" or "with assurance," that they would have been granted parole under the old system, in which the Board had the final say. Id., at 967 & 968. Finding that plaintiff could not make this showing, the Ninth Circuit held that Proposition 89 did not violate the Ex Post Facto Clause of the U.S. Constitution. Id., at 968.
However, after the Ninth Circuit decision in Gomez, the Supreme Court issued its decision in Garner v. Jones, 529 U.S. 244, 245-246 (2000). As this court has previously held, Garner changed or clarified the law in ways that directly affect this case. See ECF No. 218. The Supreme Court held:
In the case before us, respondent must show that as applied to his own sentence the law created a significant risk of increasing his punishment.
Garner, 529 U.S. at 255.
Accordingly, even where a statute does not facially violate the ex post facto clause, Garner establishes that plaintiffs may still be able to make an "as applied" challenge. In mounting such a challenge, plaintiffs can use "evidence drawn from the rule's practical implementation by the agency charged with exercising discretion, that its retroactive application will result in a longer period of incarceration than under the earlier rule." In addition, plaintiffs do not need to show "with certainty" or "with assurance," that Proposition 89 extended their sentences. Rather, they need only show that the law created a "significant risk" of increasing their punishment.[30]
A. Defendants' Motion for Summary Judgment, Proposition 89
Defendants argue that the change effected by Proposition 89 does not violate the Ex Post Facto Clause as a matter of law, and accordingly move for summary judgment on three legal grounds. None of defendants' arguments are persuasive.
1. Whether Proposition 89 Left Plaintiffs' Punishment Unchanged as a Matter of Law.
Defendants assert that before the enactment of Proposition 89, plaintiffs' punishment was "a lifetime in prison," and that is the punishment they are subject to after Proposition 89. Therefore, defendants argue, there is no Ex Post Facto violation, citing Collins v. Youngblood, 497 U.S. 37 (1990). This argument fails because its premise is incorrect. The sentence before the enactment of Proposition 89 was life in prison with the possibility of parole, not simply "life in prison." See, e.g., U.S. v. Paskow, 11 F.3d 873, 879 (9th Cir. 1993) ("parole eligibility is part of the sentence for the underlying offense").

It is the "possibility of parole" that is the whole focus of this claim:
As we recognized in Weaver, retroactive alteration of parole or early release provisions, like the retroactive application of provisions that govern initial sentencing, implicates the Ex Post Facto Clause because such credits are "one determinant of petitioner's prison term . . . and . . . [the petitioner's] effective sentence is altered once this determinant is changed." Ibid. We explained in Weaver that the removal of such provisions can constitute an increase in punishment, because a "prisoner's eligibility for reduced imprisonment is a significant factor entering into both the defendant's decision to plea bargain and the judge's calculation of the sentence to be imposed." Ibid.
Lynce, 519 U.S. at 445-446.
2. Whether Proposition 89 Effects a "Procedural" Change not Covered by the Ex Post Facto Clause.
Once again, Defendants assert that plaintiffs' claims are procedural and thus, not subject to an Ex Post Facto claim. In sum, they argue that no "as applied" challenge need be considered, as Proposition 89 worked a "procedural change," and such changes are categorically not subject to review under the Ex Post Facto Clause. According to defendants, "procedural changes, even if they `disadvantage' the accused, do not violate the Ex Post Fact Clause," citing Collins, Mallett v. North Carolina, 181 U.S. 589 (1901), and Dobbert v. Florida, 432 U.S. 282, 292 (1977). Defendants read these cases too broadly,[31] as none of them categorically excludes any and all "procedural" changes from ex post facto review. To the contrary:
by simply labeling a law "procedural," a legislature does not thereby immunize it from scrutiny under the Ex Post Facto Clause. . . . Subtle ex post facto violations are no more permissible than overt ones.
Collins, 497 U.S. at 46.
Indeed, Collins clarifies language in earlier cases that defendants interpret as holding that a simple "procedural" versus "non-procedural" test would be sufficient to determine whether a law violates the Ex Post Facto Clause. For example, the Court in Dobbert wrote:
In the case at hand, the change in the statute was clearly procedural. The new statute simply altered the methods employed in determining whether the death penalty was to be imposed; there was no change in the quantum of punishment attached to the crime. The following language from Hopt v. Utah, supra, applicable with equal force to the case at hand, summarizes our conclusion that the change was procedural and not a violation of the Ex Post Facto Clause: [¶] "The crime for which the present defendant was indicted, the punishment prescribed therefor, and the quantity or the degree of proof necessary to establish his guilt, all remained unaffected by the subsequent statute." 110 U.S., at 589-590.

432 U.S. at 293-294. Collins clarifies that it is not simply the label "procedural" that governed its holding in Dobbert. Indeed, the Court has come to use the term "procedural" in this context almost as a term of art, meaning laws that are genuinely "procedural" for purposes of the Ex Post Facto Clause. Such "procedural" laws are those which do not punish behavior that was previously lawful, do not change the quantum of punishment prescribed, do not change the quantity or the degree of proof necessary to establish guilt, and do not deprive one charged with crime of any defense available according to law at the time when the act was committed. Id. at 52; Dobbert, 432 U.S. at 295.
Similarly, Gomez found that Proposition 89 did not violate the Ex Post Facto clause under the facts presented in that case, not because the enactment was "procedural," but because the prisoner was `unable to demonstrate that an increase in his punishment actually occurred." Gomez, 92 F.3d at 967.
It is clear that retrospective procedural changes can violate the Ex Post Facto Clause if they create a significant risk of increasing the prisoner's punishment. The Ninth Circuit explained that "[a] retroactive procedural change violates the Ex Post Facto Clause" when it creates a significant risk of prolonging an inmate's incarceration. Gilman, 638 F.3d at 1106 (emphasis added), citing Garner, 529 U.S. at 251. Accordingly, the court cannot simply grant summary judgment to defendants on the grounds that Proposition 89 effects a "procedural" change, without examining the real-world effect the change has brought about.
3. Whether Johnson v. Gomez Precludes an Ex Post Facto Challenge as a Matter of Law.
Gomez is a difficult case for plaintiffs, as it was also a challenge to Proposition 89, and was rejected by the Ninth Circuit. Moreover, plaintiff in Gomez made the same general argument plaintiffs make here, and the Ninth Circuit rejected it:
Johnson argues that, unlike the administrative convenience purpose of the law in Morales, the purpose and effect of the law here is to lengthen prison terms by making it more difficult for convicted murderers with indeterminate sentences to be released on parole. However, the law itself is neutral inasmuch as it gives the governor power to either affirm or reverse a BPT's granting or denial of parole. Moreover, the governor must use the same criteria as the BPT. The law, therefore, simply removes final parole decisionmaking authority from the BPT and places it in the hands of the governor. We cannot materially distinguish this change in the law from that at issue in Mallett v. North Carolina, 181 U.S. at 590. In Mallett, the Court found no ex post facto violation where the new law allowed for higher court review of intermediate court decisions, even though the petitioner would have been entitled to a final intermediate court decision at the time of his crime. Id. at 597. We therefore conclude that the application of Proposition 89 to authorize the governor's review of Johnson's grant of parole did not violate the Ex Post Facto Clause.
Gomez, 92 F.3d at 967.

Gomez does not end there, however. It goes on to throw a life-line to plaintiffs' claim here, thus precluding this court from dismissing their claim on summary judgment. Specifically, Gomez went on to examine the Ninth Circuit's instruction that the district court must "look to the actual effect of the new law upon the petitioner." Id. at 968. In other words, a facial challenge to the law is precluded by Gomez, but Gomez does not preclude a challenge based upon "the actual effect" of Proposition 89 on this class of plaintiffs.
The possibility of an as-applied challenge was confirmed by the Supreme Court in Garner. Under Garner, "when a law does not facially increase punishment, `the [petitioner] must demonstrate, by evidence drawn from the rule's practical implementation by the [entity] charged with exercising discretion that its retroactive application will result in a longer period of incarceration than under the earlier rule.'" Heller v. Powers-Mendoza, 2007 WL 963330, 1 (E.D. Cal. 2007) (Karlton, J.), quoting Garner, 529 U.S. at 245.
Accordingly, defendants' argument that plaintiffs' Proposition 89 challenge can be dismissed "as a matter of law" is incorrect. Instead, plaintiffs must be given the opportunity to prove at trial that Proposition 89 has created a significant risk that their punishment would be increased.
B. Plaintiffs' Motion for Summary Judgment, Proposition 89
Plaintiffs move for summary judgment on their Proposition 89 claim, asserting that the undisputed facts show that the enactment creates a significant risk that they will serve an increased term of incarceration.
1. Intent of the Legislature.
Plaintiffs cite the Ballot Pamphlet[32] to assert that the intention of Proposition 9 was to give the Governor the power to protect the public from the early release of dangerous killers. PSUF ¶ C; see also, Gomez, 92 F.3d at 966 ("The voters' intent, as indicated in contemporaneous accounts, was at least in part to give the governor authority to prevent convicted murderers from receiving parole"). Plaintiffs argue that this shows that the legislature intended to increase the punishment of "dangerous killers" already convicted and incarcerated, and that therefore the law violates the ex post facto clause "without further inquiry into the law's effect," citing Smith v. Doe, 538 U.S. 84, 92 (2003).
Once again, common sense would indicate that if a law is passed in order to increase the punishment of prisoners who have already been convicted of their crimes, then this would create an ex post facto issue. However, that does not appear to be the law. In fact, whether or not a court may look to the intent of the legislature (or the People, in the case of a Ballot Initiative), appears to depend on the type of alleged ex post facto law that is at issue.
If the issue is whether the challenged enactment is penal or civil in nature, it is well established that the courts look to the intent of the legislature: "If the intention of the legislature was to impose punishment, that ends the inquiry." Smith, 538 U.S. at;[33] ACLU of Nevada v. Masto,

670 F.3d 1046, 1053 (9th Cir. 2012) ("If the legislature did intend to impose a criminal punishment, that is the end of the inquiry — the law may not be applied retroactively").
However, if the issue is whether the enactment increases what is indisputably punishment, namely incarceration, then the court focuses on "an objective appraisal of the impact of the change on the length of the offender's presumptive sentence," rather than the intent of the legislature. Lynce, 519 U.S. at 442-43. In discussing whether a retroactive cancellation of early release credits violated the Ex Post Facto Clause, Lynce specifically rejected the "undue emphasis on the legislature's subjective intent in granting the credits rather than on the consequences of their revocation." Id., at 442.
The Lynce Court pointed out that all of its prior decisions in this context — the alleged retroactive increase in punishment — focused only on the effect of the legislation, not the intent of the legislature. Id., at 442-45. The court concluded by noting that "the Court has never addressed" whether intent alone — without a forbidden effect — would be enough to find an Ex Post Facto Clause violation. Id., at 445.
Plaintiffs are therefore incorrect in asserting that it is settled law that this court is required to find a violation based upon intent alone. Given the teaching of Lynce, and its lengthy examination of cases showing that it has never found an ex post facto violation based upon intent alone, this court does not believe it is free to grant summary judgment to plaintiffs solely on the basis of the intent of Proposition 89.
2. The creation of an additional hurdle to parole.
Plaintiffs argue that an effect of Proposition 89 is to interpose an additional hurdle that prisoners must clear before they can obtain parole, and that this additional hurdle did not exist at the time their crimes were committed. It is undisputed that when the crimes were committed, the road to parole involved convincing only the Board that the prisoner was suitable for parole.[34] After the passage of Proposition 89, another road-block was placed in the road, namely, the prisoner now has to convince the Board, and then, separately, the Governor, that he is suitable for parole.[35]
The undisputed facts also support the assertion that Proposition 89 has imposed this additional hurdle. First, while the governor reviews every grant of parole, he almost never reviews denials of parole.[36] Second, from 1991 to 2011, "the Governor reversed more than 70 percent of the grants of parole made to prisoners with murder convictions." PSUF ¶ E.[37] Had the Governor not reversed, 90% of those prisoners would have been immediately released, but because of the Governor's action, were instead held in custody. Id.[38] The question, then, is whether adding this additional hurdle creates a "significant risk of prolonging" plaintiffs' incarceration. Garner, 529 U.S. at 251.
Common sense would indicate that a prisoner has a significantly increased chance of longer incarceration if he must convince two decision-makers that he is entitled to parole, rather than just one. In addition, actual experience with the law shows that most of the time — 70% of the time — even after the prisoner convinces the first decision-maker that he is entitled to parole, the

Governor reverses that decision. The evidence presented thus shows that plaintiffs have a heavier burden to achieve parole than they would have had at the time their crimes were committed.[39]
In this context however, the court cannot simply rely on experience and common sense, or even the undisputed facts of this case. Rather, it must apply the law as determined by the Supreme Court and the Ninth Circuit. Under this binding authority, although the law clearly disadvantages plaintiffs after the fact — by now requiring them to clear two hurdles in seeking parole rather than one — there is no Ex Post Facto violation unless plaintiffs can additionally show that the law creates a "significant risk" that their incarceration will be increased. See Garner, 529 U.S. at 251 ("The question is whether the amended Georgia Rule creates a significant risk of prolonging respondent's incarceration"). That is because the earlier rule — recognizing that increasing such a burden implicated the Ex Post Facto Clause — is no longer the law.
In Thompson v. State of Utah, 170 U.S. 343 (1898), the Supreme Court held that increasing the petitioner's burden to obtain an acquittal than existed when the crime was committed, violated the Ex Post Facto Clause. In that case, the crime of which petitioner was accused was committed at a time when he had a right to a trial by twelve (12) jurors, who had to reach a unanimous verdict in order to convict him. By the time of his second trial however (his first conviction was overturned), a change in the governing law[40] permitted a trial by eight (8) jurors, who again had to reach a unanimous verdict in order to convict. The Court held:
In our opinion, the provision in the constitution of Utah providing for the trial in courts of general jurisdiction of criminal cases . . . by a jury composed of eight persons, is ex post facto in its application to felonies committed before the territory became a state, because, in respect of such crimes, the constitution of the United States gave the accused, at the time of the commission of his offense, the right to be tried by a jury of twelve persons, and made it impossible to deprive him of his liberty except by the unanimous verdict of such a jury.
Thompson, 170 U.S. at 355 (emphasis added). In other words, an Ex Post Facto violation occurred because, after the crime was committed, the law imposed a heavier burden on petitioner to obtain an acquittal: now the State had to convince only eight jurors to convict, rather than twelve.[41]
The Supreme Court overruled Thompson in Collins:
The right to jury trial provided by the Sixth Amendment is obviously a "substantial" one, but it is not a right that has anything to do with the definition of crimes, defenses, or punishments, which is the concern of the Ex Post Facto Clause. To the extent that Thompson v. Utah rested on the Ex Post Facto Clause and not the Sixth Amendment, we overrule it.
497 U.S. at 52. In Collins, the Court held that "a new law which gave an appellate court the authority to reform an improper verdict, where previously a defendant was entitled to a new trial," did not violate the Ex Post Facto Clause. That is because the Clause does not prevent the State from retroactively making it more difficult to be acquitted of a crime, so long as the law did not:

punish as a crime an act previously committed, which was innocent when done; . . . make more burdensome the punishment for a crime, after its commission; nor deprive one charged with crime of any defense available according to law at the time when the act was committed.
Id., overruling Kring v. Missouri, 107 U.S. 221 (1883), and Thompson v. Utah, 170 U.S. 343 (1898).[42]
The Collins ruling was foreshadowed by Mallett, in which the petitioner was convicted by the criminal court of a "conspiracy to cheat and defraud." See State v. Mallett, 125 N.C. 718, 34 S.E. 651, 651-52 (1899). Petitioner appealed to the superior court, which overturned the conviction and ordered a new trial. Id. 34 S.E. at 652; Mallet, 181 U.S. at 590 (Statement of Mr. Justice Shiras).[43]
At the time the crime was committed, the state had no right of appeal. Therefore, Petitioner would have been granted the possibility of an acquittal at the new trial. However, after the crime was committed, the state enacted legislation granting the state a right of appeal from decisions of the superior court. Mallett, 181 U.S. at 590 (Statement of Mr. Justice Shiras). The state exercised that right in Petitioner's case, and obtained a reversal of the Superior Court, "with directions that the sentence imposed by that court should be carried into execution." Id.
Petitioner appealed to the U.S. Supreme Court, asserting that the new law was ex post facto when it was applied to him. The specifics of Petitioner's argument is not set forth in the Court's decision, but it would appear that the new law interposed an additional hurdle for Petitioner to clear before he could get his conviction overturned. At the time the crime was committed, he would have had to convince only the superior court that his conviction should be overturned, which he did. However, after he was convicted, he also had to convince the state's Supreme Court that his conviction should be overturned, which he failed to do. The U.S. Supreme Court rejected the ex post facto challenge, finding that the law:
did not make that a criminal act which was innocent when done; did not aggravate an offense or change the punishment and make it greater than when it was committed; did not alter the rules of evidence, and require less or different evidence than the law required at the time of the commission of the offense; and did not deprive the accused of any substantial right or immunity possessed by them at the time of the commission of the offense charged.
Mallett, 181 U.S. at 597.
The rule this court must apply, then, is that the mere placement of additional hurdles in the path of a prisoner seeking parole is not, by itself, a violation of the Ex Post Facto Clause. Accordingly, plaintiffs cannot be granted summary judgment on this basis. However, nothing in any of the above cases indicates that this court must ignore these additional, retrospectively imposed hurdles, if plaintiffs can show that they create a significant risk that their incarceration will be increased. Thus, plaintiffs have the right to present evidence regarding the issue at trial, and defendants have the right to rebut the case.
3. The Governor's actions.

Plaintiffs seek summary judgment because, they assert, the undisputed facts show that the Governor's exercise of his powers under Proposition 89 has resulted in increased incarceration times for plaintiffs. See Plaintiffs' SJ Motion at 5. However, plaintiffs base their assertion on a theory that has already been rejected by the Ninth Circuit.
As plaintiffs assert, it is undisputed that the Governor has reversed over 70% of the parole grants issued by the Board, almost all of which were for prisoners whose release date had already passed. After the Governor reversed the Board's decision, these prisoners remained incarcerated, although they would have been released if the Governor had not intervened. Therefore, plaintiffs argue, the undisputed facts show that these prisoners have actually had their incarcerations prolonged by the Governor's exercise of his Proposition 89 authority.
Unfortunately for plaintiffs, this perfectly logical argument fails to come to terms with the reasoning of the Ninth Circuit in Gomez, a habeas case in which a prisoner also challenged the Governor's exercise of his authority under Proposition 89.
There, as here, the Board had made a decision to grant parole under Proposition 89. Gomez, 92 F.3d at 965. There, as here, the Governor reversed the decision. Id. However, since the Board did not possess the "final power to decide," in that its decision was subject to gubernatorial review, the Ninth Circuit reasoned that there was no way to tell, "with certainty," if the Board would have granted parole if Proposition 89 did not exist:
In this case, Johnson is similarly unable to demonstrate that an increase in his punishment actually occurred. . . . Johnson's case is like Dobbert, where the petitioner could only speculate whether the jury would have imposed a life sentence had it possessed the final power to decide. Here, because the BPT's parole decision is not final until after the expiration of the thirty-day gubernatorial review period, it cannot be said with certainty that the BPT would have granted Johnson parole had it possessed the final review authority.
Id., at 967 (citations omitted).[44] In reaching this conclusion, the Ninth Circuit adopted the reasoning set forth in a footnote in Dobbert:
For example, the jury's recommendation may have been affected by the fact that the members of the jury were not the final arbiters of life or death. They may have chosen leniency when they knew that that decision rested ultimately on the shoulders of the trial judge, but might not have followed the same course if their vote were final.
432 U.S. at 294 n.7.
Accordingly, this court cannot grant summary judgment solely on the undisputed facts that the plaintiffs were granted parole by the Board and had those decisions reversed by the Governor. Plaintiffs at trial will need to establish other facts tending to show, sufficient to meet their burden of proof, that the Governor's actions created a significant risk of increased incarceration.[45]
4. The Governor's Exercise of discretion.

Finally, plaintiffs seem to argue that the Governor's exercise of discretion is so much stricter than that exercised by the Board at the time of plaintiffs' crimes, that this also violates the Ex Post Facto clause. The resolution of this question seems particularly difficult because the actual length of incarceration depends upon the discretion of the decision-maker, whether it is the Board or the Governor. We are cautioned that:
The presence of discretion does not displace the protections of the Ex Post Facto Clause, however. The danger that legislatures might disfavor certain persons after the fact is present even in the parole context, and the Court has stated that the Ex Post Facto Clause guards against such abuse.
Garner, at 253 (citation omitted), citing Miller v. Florida, 482 U.S. 423, 435 (1987).
Despite this quoted language however, Garner does not stand for the proposition that a change in the exercise of discretion is a matter for the Ex Post Facto Clause. What Garner addressed was not "that discretion has been changed in its exercise," but that "it will not be exercised at all." Id., at 254. Moreover, the case upon which Garner relies for its discretion discussion, Miller v. Florida, similarly was not concerned with how discretion was exercised, but rather the fact that discretion could no longer be exercised at all until a newly interposed, "high hurdle" had been cleared. Miller, 482 U.S. at 435.[46]
In this case, plaintiffs do not present any evidence that the Governor failed to exercise his discretion.[47] Rather, they have presented evidence that the Governor exercised his discretion in a manner that resulted in a 70% reversal rate of parole grants by the Board. This cannot in itself be enough for this court to infer that the Governor did not exercise his discretion.
Moreover, it is not enough for the court to find that there was a significant risk of increased incarceration, as measured from the time the crime was committed. At the time the crimes were committed, the punishment included a discretionary grant of parole. That is the punishment assigned by law, and that is the punishment that cannot be increased for these plaintiffs.[48] The punishment included no promise that the discretion would be exercised liberally. Even assuming that the discretion was exercised in a profoundly more restrictive manner when plaintiffs came up for parole, than it was at the time of the offense, this court knows of no authority that this is prohibited by the Ex Post Facto Clause. Indeed, it is difficult to imagine this being the rule.
In essence, plaintiffs are asserting that the State may not shift the parole decision-making authority to a person who will exercise his discretion in a stricter manner than was being exercised at the time of the offense. The court knows of no legal basis for this view.[49] To the contrary, changes in the exercise of discretion — sometime stricter, sometimes less strict — are inherent in the very concept of discretionary parole:
to the extent there inheres in ex post facto doctrine some idea of actual or constructive notice to the criminal before commission of the offense of the penalty for the transgression, we can say with some assurance that where parole is concerned discretion, by its very definition, is subject to changes in the manner in which it is informed and then exercised. The idea of discretion is that it has the capacity, and the obligation, to change and adapt based on experience. New insights

into the accuracy of predictions about the offense and the risk of recidivism consequent upon the offender's release, along with a complex of other factors, will inform parole decisions.
Garner, 529 U.S. at 253-254.[50]
Accordingly, even if it is true that the Governor is stricter in granting parole, this is not a grounds for summary judgment for plaintiffs, if the Governor is properly exercising his discretion under the law. However, plaintiffs are free to attempt to show at trial, that the Governor is not actually exercising his discretion, or that he is abusing it, solely for the purpose of denying parole to prisoners. Such a showing would tend to support the charge that the enactment, as applied, has created a significant risk that plaintiffs' punishments are being increased retroactively.
C. Plaintiffs' Alternative Motion for Preliminary Injunction.
Plaintiffs move for an order preliminarily enjoining defendants from enforcing the provisions of Proposition 89, in the event they are not granted summary judgment on the claim. Although plaintiffs have adduced sufficient evidence to survive summary judgment, the court cannot find at this point, and to a preliminary injunction standard, that plaintiffs are "likely" to succeed on the merits of their Proposition 89 claim. Accordingly, the court will deny their alternate motion for a preliminary injunction.
IV. DEFENDANTS' MOTION FOR CLASS DECERTIFICATION
Defendants assert that the remaining classes should be decertified pursuant to Wal-Mart, 131 S. Ct. 2541. Specifically, they assert that under Wal-Mart, plaintiffs do not satisfy the "commonality" requirement.
This court has previously found, and the Ninth Circuit has affirmed, that plaintiffs satisfy the numerosity, commonality, typicality and adequacy requirements of Rule 23(a). Gilman v. Davis, 2009 WL 577767 (E.D. Cal.) (Karlton, J.), aff'd mem., 382 Fed. Appx. 544 (9th Cir. 2010). Defendants do not challenge the Rule 23(a) numerosity, typicality and adequacy findings, nor the Rule 23(b)(2) findings, and they are re-affirmed here. The only issue therefore, is Rule 23(a) "commonality."
To establish commonality, plaintiffs must establish that "that there are one or more questions of law or fact common to the class." Ellis, 657 F.3d at 980 citing Fed. R. Civ. P. 23(a)(2). It is sufficient that there be one common question "apt to drive the resolution of the litigation." WalMart, 131 S. Ct. at 2556 ("We quite agree that for purposes of Rule 23(a)(2) even a single [common] question will do") (internal quotation marks omitted):
What matters to class certification . . . is not the raising of common "questions" — even in droves — but, rather the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation. Dissimilarities within the proposed class are what have the potential to impede the generation of common answers.

Wal-Mart, 131 S. Ct. at 2551.[51]
Here, plaintiffs have shown that there is a common question that will affect every member of both classes: whether the challenged Propositions, as applied, have retrospectively created a significant risk that their punishment will be increased, by retrospectively lengthening their terms of incarceration. Moreover, they have adduced evidence from which the court could infer that the application of these Propositions has created this risk.[52]
Among the undisputed evidence plaintiffs presented to this effect in regard to Proposition 89 is that the Governor reviews every Board decision finding that a prisoner is "suitable" for parole, but reviews almost no Board decisions finding that a prisoner is "unsuitable" for parole. See PSUF ¶ D. In addition, plaintiffs' undisputed evidence shows that the Governor has reversed over 70% of the Board's decisions that prisoners were "suitable" for parole, but that of the few "unsuitable" determinations he reviewed, he affirmed 100% percent of them. Id., ¶¶ D & E.
As for Proposition 9, plaintiffs have shown that the Board's previous ability to carefully "tailor" the frequency of parole hearings as been removed as to all plaintiffs, as discussed above. They have also shown that the 90% or greater summary dismissal rate of advance hearing petitions affects the class members as a whole, as discussed above.
A declaration that the Governor has not properly applied Proposition 89, and an injunction requiring him to do so, would affect every member of the class, regardless of whether he has even reached his parole eligibility date. If plaintiffs can establish that the application of Proposition 89 has created a significant risk that their terms of incarceration would be increased — and especially if they can show that their sentences were increased to life without the possibility of parole — then the relief plaintiffs seek would eliminate the significant risk of increased punishment. Accordingly, the court will not decertify the remaining classes.
VII. CONCLUSION
For the foregoing reasons:
1. Plaintiffs' motion for summary judgment or, in the alternative, a preliminary injunction on Claim 9 (regarding Proposition 89) (ECF No. 428), is DENIED;
2. Defendants' motion for summary judgment on Claims 8 (regarding Proposition 9) and 9 (ECF No. 425), is DENIED;
3. Defendants' motion to decertify the remaining classes (ECF No. 426), is DENIED; and
4. All currently scheduled dates in this matter are CONFIRMED.
IT IS SO ORDERED.
[1] The classes were certified pursuant to Fed. R. Civ. P. 23(b)(2), which permits class members to "opt out" at the discretion of the court. See, e.g., Linney v. Cellular Alaska Partnership, 151 F.3d 1234, 1242 n.6 (9th Cir. 1998)

("This court has held that the option to opt-out is discretionary in cases, like this one, brought under Rule 23(b)(2)"). There appears to be no reason to deny these requesters the right to opt out in this case, and accordingly their pending requests to opt out of this class (ECF Nos. 450 & 474), are hereby GRANTED.
[2] The operative complaint here is the "[Corrected] Fourth Amended/Supplemental Complaint" ("Complaint") (ECF No. 175). See ECF No. 183 (authorizing this complaint to be filed). Plaintiffs have abandoned Claims 1, 3 and 6 (Due Process). See Plaintiffs' Opposition to Summary Judgment ("Pl. Opp. to SJ") (ECF No. 435) at 1. This court granted judgment on the pleadings for defendants on Claims 2, 4, 5 and 7 (ECF No. 420) (May 31, 2012).
[3] On March 4, 2009, this court granted plaintiffs' motion for class certification (ECF No. 182), and the Ninth Circuit affirmed that order on interlocutory appeal (Dkt. No. 257). Gilman v. Schwarzenegger, 382 Fed. Appx. 544 (9th Cir. 2010)(unpublished table decision). On April 25, 2011, this court modified the class definitions to their current configuration. ECF No. 340. The classes for Claims 1, 3 and 6 have already been decertified. ECF No. 445 (September 7, 2012).
[4] On February 4, 2010, this court denied defendants' motion to dismiss the Proposition 89 challenge (ECF No. 218). Gilman v. Davis, 2010 WL 434215 (E.D. Cal. 2010) (Karlton, J.). The court acknowledged that the Ninth Circuit had already rejected a facial challenge to Proposition 89, citing Johnson v. Gomez, 92 F.3d 964 (9th Cir. 1996), cert. denied, 520 U.S. 1242 (1997). However, the court determined that Garner v. Jones, 529 U.S. 244 (2000) provides for "both facial and as applied Ex Post Facto challenges." Accordingly, the court denied the motion to dismiss, leaving plaintiff free to make an "as applied" challenge to Proposition 89. On May 31, 2012, this court denied defendants' motion for judgment on the pleadings on the Proposition 89 challenge. (Dkt. No. 420). Defendants had argued that the claim was time-barred.
[5] Plaintiffs' requests to seal documents (ECF Nos. 427 & 439), all of which pertain to confidential Executive Case Summaries of prisoners, were granted in separate orders.
[6] "The Board of Parole Hearings replaced the Board of Prison Terms in July 2005." In re Lawrence, 44 Cal. 4th 1181, 1190 n.1 (2008).
[7] The California Supreme Court recently decided, in a habeas case, that Marsy's Law does not violate the Ex Post Facto Clause of the U.S. Constitution, on its face, or as applied to the petitioner. In re Vicks, 56 Cal. 4th 274 (2013). Although Vicks' conviction pre-dated Marsy's Law, the court "decline[d] to undertake an analysis of whether Marsy's Law violated ex post facto principles as it is being applied to life prisoners whose commitment offenses occurred before the passage of Marsy's Law; Vicks did not raise this contention below, and the evidence of which he seeks judicial notice does not provide a basis for this court to address the issue." Id. at 317. Accordingly, the question that is before this court is the very question the California Supreme Court declined to rule upon. In any event, while this court accords great respect to a constitutional decision of the state's highest court, this court is not bound by its interpretation of the federal Constitution. See Bittaker v. Enomoto, 587 F.2d 400, 402 n.1 (9th Cir. 1978), cert. denied, 441 U.S. 913 (1979).
[8] The five year deferral possibility applied to prisoners convicted of murder, and was added to the law in 1994. Cal. Penal Code § 3041.5(b)(2) (1995). Before that, deferrals could be for two, three or a maximum of five years, pursuant to several amendments to Section 3041.5. See Cal. Penal Code § 3041.5(b)(2) (1991) (reflecting 1990 amendments); Cal. Penal Code § 3041.5(b)(2) (1987) (reflecting 1981 and 1982 amendments).
[9] The considerations include the desire to impose "uniform terms for offenses of similar gravity and magnitude with respect to their threat to the public," compliance with the sentencing rules that the Judicial Council of California may issue, sentencing information relevant to the setting of parole release dates, the number of victims of the crime, as well as mitigating and aggravating factors. Cal. Penal Code § 3041(a); see also, See Cal. Admin. Code tit. 15, §§ 2289 (computation of parole date); Cal. Admin. Code tit. 15, §§ 2282 (base term), 2283 (aggravation of the base term); 2284 (mitigation of the base term); 2285-86 (enhancements for firearms use and for other reasons).

[10] The court cites the respective parties' statements of undisputed facts when the opposing party has not disputed the asserted fact.
[11] Page numbers refer to the CM/ECF page number, not the internal document page number.
[12] The amendment provides:
No decision of the parole authority of this state with respect to the granting, denial, revocation, or suspension of parole of a person sentenced to an indeterminate term upon conviction of murder shall become effective for a period of 30 days, during which the Governor may review the decision subject to procedures provided by statute. The Governor may only affirm, modify, or reverse the decision of the parole authority on the basis of the same factors which the parole authority is required to consider. The Governor shall report to the Legislature each parole decision affirmed, modified, or reversed, stating the pertinent facts and reasons for the action.
Cal. Const. Art. V, § 8(b).
[13] Plaintiffs have already met their burden to establish that class certification is proper. Nevertheless, in this Circuit, it again bears the burden on this motion, even though it is defendants' motion:
as to the class-decertification issue, Marlo, as "[t]he party seeking class certification [,] bears the burden of demonstrating that the requirements of Rules 23(a) and (b) are met."
Marlo v. United Parcel Service, Inc., 639 F.3d 942, 947 (9th Cir. 2011).
[14] It is undisputed that the enactment is retrospective, that is, it applies to prisoners whose offenses occurred before Proposition 9 was enacted.
[15] Another point noted by the Court was its conclusion that it was purely speculative whether an earlier release date can be secured by more frequent parole hearings. Morales, 514 U.S. at 513. That is because it held that, even if parole were granted at the initial hearing, the actual release date could be set years after the parole hearing, depending on the Board's calculation of his "base term," the base term being calculated from a matrix used by the Board.
[16] This possibility was "suggested" by the California Supreme Court in In re Jackson, 39 Cal. 3d 464, 475 (1985) ("it is conceivable that the Board could advance the suitability hearing and order immediate release"). It was also "indicated" by the CDC in a footnote to its Supreme Court Reply Brief, Petitioner's Reply Brief in CDC v. Morales, at 3 n.1, 1994 WL 707994 ("the practice of the Board is that it will review for merit any communication from an inmate asking for an earlier suitability hearing").
[17] For example, if a prisoner is denied parole and has his next parole hearing deferred for the default interval — fifteen years — he can seek an advance hearing at any time thereafter. However, if his requested advance hearing is denied (or granted, but parole is denied), he can only seek another advance hearing every three years, until the fifteen year deferral is completed.
[18] This court rejected plaintiffs' argument that the Board was free to simply deny an advance hearing even if a prisoner had made the required showing. See Gilman, 690 F. Supp. 2d at 1122 (the court "must assume that the Board will exercise a neutral grant of discretion in a manner consistent with the Ex Post Facto Clause").
[19] Plaintiffs also objected that: there was "`no mechanism or procedure in place for the Board to initiate a review or to accept, consider or rule on a prisoner's request [for an advance hearing,'" but they adduced no evidence that the Board "denied or failed to respond to requests for advance hearings;" an advance hearing will not be held within a year of the request, but failed to adduce any evidence to that effect; and prisoners would not be able to establish

changed circumstances warranting earlier parole, but they failed to show that the task differed from the ordinary request for parole, in which the prisoner must show changed circumstances warranting parole.
[20] The failure to grant an advance hearing is reviewable in court for a "manifest abuse of discretion." Cal. Penal Code § 3041.5(d)(2).
[21] "If the request is denied, the inmate may not make another request for three years. Similarly, if the Board holds an earlier parole suitability hearing — `a hearing described in subdivision (a)' — rather than denying the request, and it declines to set a parole date after the hearing, the inmate may not make another request for three years after this more recent decision of the Board." Vicks, 56 Cal. 4th at 286.
[22] In addition, eight were denied following a "full review," and five were granted. Of the five that were granted, three advance hearings were scheduled, and two had not been scheduled. PSUF-Additional ¶¶ 17 & 18.
[23] Plaintiffs rely on Summary Exhibit 37 from the April 6, 2011 preliminary injunction hearing, conducted after the Ninth Circuit's decision in Gilman, for this fact. Defendants do not dispute this fact.
[24] These exhibits were also admitted at the April 6, 2011 preliminary injunction hearing. Defendants do not dispute the facts asserted, although they argue that the subsequent findings of suitability could just be the result of different decision-makers reaching different decisions. On this summary judgment motion, the court draws the reasonable inference that these prisoners established to the satisfaction of the Board that they were "suitable" for parole, and that they did so at an earlier time than they could have done under the advance hearing procedure.
[25] Plaintiffs include class plaintiff Billy Counts in this group. PSUF-Additional ¶ 40. However, Counts' request for an advance hearing was made after he had already been granted an earlier (one-year) deferral, and his request was denied after he had already been granted parole. The court cannot draw any inference from this case that the advance hearing process fails to "catch" prisoners who have moved to suitability.
[26] For example, it may be unnecessarily complex, preventing unrepresented prisoners from successfully navigating it.
[27] Obviously, the court is not finding that plaintiffs have proven their position; rather, the court is simply saying that the factual posture is such as to permit them to prove their assertion at trial.
[28] It is undisputed that the enactment is retrospective, that is, it applies to prisoners whose offenses occurred before Proposition 89 was enacted.
[29] The Board of Parole Hearings, is an Executive Branch agency whose members are all appointed by the governor, with the consent of the state senate (Cal. Gov. Code § 12838.4).
[30] The Governor already had the authority to grant a reprieve, pardon, or commutation of the sentence of any prisoner. See Cal. Const. Art. V, § 8(a). Plaintiffs therefore argue that Proposition 89 only added the power to lengthen incarcerations, by reversing grants of parole. However, it also added the power to shorten an incarceration, by giving the Governor a new option, namely, granting parole even though the Board did not authorize it (however, there is no evidence in the record that this has ever happened). In this way, in theory, while a Governor might decline to commute a sentence entirely (thus releasing the prisoner into the population without supervision), the Governor might, at least theoretically, be willing to grant parole (and its consequent supervision) to that same prisoner.
[31] In any event, this court has already rejected defendants' argument in the motion to dismiss this claim, and it is now the law of the case. See Gilman v. Davis, 2010 WL 434215 at *3-*4.

[32] "In California, `[b]allot summaries . . . in the "Voter Information Guide" are recognized sources for determining the voters' intent.'" Perry v. Brown, 671 F.3d 1052, 1090 n.25 (9th Cir.) (quoting People v. Garrett, 92 Cal. App. 4th 1417, 1426 (2001)), cert. granted, 133 S. Ct. 786 (2012).
[33] However, if the legislature's intent "was to enact a regulatory scheme that is civil and nonpunitive, we must further examine whether the statutory scheme is "`so punitive either in purpose or effect as to negate [the State's] intention' to deem it `civil.'" Id.
[34] And, as discussed above, they were able to make their case every year, rather than once every fifteen years.
[35] In fact, the hurdle is even greater than might otherwise appear, since it appears the prisoner does not even have the right to make his case to the Governor.
[36] It is undisputed that from 1991 to 2011, the Governor reviewed only three (3) denials of parole, and he affirmed all three. PSUF ¶ D. During the same period, the Governor reversed 70% of Board decisions finding the prisoner "suitable" for parole. PSUF ¶ E.
[37] Plaintiffs also assert: "The evidence establishes a significant risk that prisoners with murder convictions will do more custodial time after Proposition 89 than they would do if the old law still applied." Plaintiff's SJ Motion at 9 (ECF No. 428-1). However, the undisputed evidence does not show this. The only evidence in plaintiffs' statement of undisputed facts relates to parole decisions under the new law. Plaintiffs have asserted in their Reply brief that the Board's suitability finding was 6.1% under the old law and the new law. However this assertion is not included in the Statement of Undisputed Facts, and defendants have had no opportunity to dispute or concede it.
[38] Plaintiffs also assert that 70 percent of challenges to the Governor's reversals "resulted in the prisoner obtaining relief." The court is not clear as to what the assertions means, and in any event, the assertion does not explain how that affects this case.
[39] It may well be that the frequency of reversal will vary from Governor to Governor, that however, does not affect the risk of prolonged incarceration.
[40] When petitioner's crime was committed, Utah was a territory, and thus was considered bound by the Sixth Amendment. At the time, it was thought that the Sixth Amendment required a twelve-person jury. By the time of petitioner's second trial, Utah had become a state. At the time, it was thought that States were not bound by the Sixth Amendment, and therefore no longer required to use twelve-person juries. Later cases established that the Sixth Amendment does apply to the States, but that it does not require twelve-person juries. Williams v. Florida, 399 U.S. 78, 103 (1970) (after petitioner was convicted by 6-person jury and sentenced to life in prison, Court holds that "the 12-man panel is not a necessary ingredient of `trial by jury,' and that respondent's refusal to impanel more than the six members provided for by Florida law did not violate petitioner's Sixth Amendment rights as applied to the States through the Fourteenth").
[41] Viewed another way, petitioner now had to convince 1 out of 8 jurors to acquit, rather than only 1 out of 12.
[42] Thompson was overruled to the degree it held that retroactive procedural statutes violate the Ex Post Facto Clause unless they "`leave untouched all the substantial protections with which existing law surrounds the person accused of crime,'" Lynaugh, supra, at 959 (quoting 170 U.S., at 352).
[43] The superior court determined that the criminal court had allowed facts to be used against Petitioner even though the law prohibited their use, and because the trial judge failed to submit to the jury the question of whether the prosecution was barred by the statute of limitations. Mallett, 34 S.E. at 652.
[44] The Supreme Court clarified that the standard here is whether the enactment creates a "significant risk" of increased incarceration, rather than a "certainty" of increased incarceration. See Garner, 529 U.S. at 251.

[45] For example, plaintiffs may be able to show that the Board's rate of parole grants did not change once Proposition 89 was enacted. This would undermine any speculation that the Board became more lenient only because it knew that the final decision-maker, the Governor, could reverse their decision.
[46] As the Court stated:
Nor do the revised guidelines simply provide flexible "guideposts" for use in the exercise of discretion: instead, they create a high hurdle that must be cleared before discretion can be exercised.
Miller, 482 U.S. at 435.
[47] Plaintiffs have produced no undisputed evidence that the Governor refuses to exercise his discretion at all, nor that he reversed parole grants regardless of the circumstances, and without considering the factors he is required to consider. The court assumes, without deciding, that such conduct would illegally increase the penalty prescribed by law by changing the penalty from "life with the possibility of parole" to "life without the possibility of parole." Nor is there evidence that the Governor is using proscribed criteria to make his parole decisions, such as "no parole unless at least 20 years have been served," or "no parole unless Haley's Comet is in the sky." The court assumes, without deciding, that such conduct would illegally increase the penalty to "life without the possibility of parole for the first 20 years," or "life with only a very remote possibility of parole."
[48] The Ex Post Facto Clause
forbids the imposition of punishment more severe than the punishment assigned by law when the act to be punished occurred. Critical to relief under the Ex Post Facto Clause is not an individual's right to less punishment, but the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was consummated.
Weaver, 450 U.S. at 30-31 (emphases added).
[49] Plaintiffs implicitly seem to agree with this analysis. Plaintiffs' only request for relief set forth in the Complaint is that the Governor review parole decisions "based on the same factors the Board is required to consider, as required by [Proposition 89]." Complaint ¶ 5. In effect, plaintiffs seek an "obey the law" injunction. There is no request that the law be declared in violation of the ex post facto clause, or that the Governor be required to decrease his reversal rate, or that he be required to review more parole denials. The only request sought is that the Governor be required to exercise his discretion as set forth in Proposition 89. Unfortunately for plaintiffs' summary judgment motion, nothing they have submitted shows — beyond any genuine dispute — that the Governor is not already doing so. Rather, their evidence permits the court to draw the reasonable inference that the Governor is simply reaching different conclusions than the Board.
[50] At oral argument, the Court pondered whether the real-world impact of politics on the Governors' decisions could play a role in his parole decisions, since the Board is more insulated from such considerations, whereas the Governor may feel under pressure to opt for longer punishment to avoid the wrath of the voters. Ultimately, however, this pressure is what democracy is all about. Equally important, it only addresses how the Governor chooses to exercise his discretion, a matter that, as Garner explains, is contemplated by the very nature of "discretion."
[51] Quoting Nagareda, Class Certification in the Age of Aggregate Proof, 84 N.Y.U.L. Rev. 97, 131-132 (2009).
[52] At the extremes, the court could infer that their terms were retrospectively increased from life with the possibility of parole, to life without the possibility of parole.

 
 1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10

11 RICHARD M. GILMAN, et al.,

No. CIV. S-05-830 LKK/CKD

12

Plaintiffs,

13

v.

ORDER

14 EDMUND G. BROWN, JR., et al.,

15

Defendants.

16

17

Plaintiffs in this certified class action are inmates in

18 California state prisons who are serving terms of life

19 imprisonment with the possibility of parole. Plaintiffs assert

20 that Propositions 9 and 89 have retrospectively increased their

21 punishments, in violation of the Ex Post Facto Clause of the U.S.

22 Constitution.

23

Proposition 9 amended California law to, among other things,

24 increase the time between parole hearings. 2008 Cal. Legis.

25 Serv. Prop. 9 (West), amending in pertinent part, Cal. Penal Code

26 § 3041.5(b)(3) (extending deferral periods) and (b)(4) and

27 (d) (advance hearings). The class challenging this Proposition

28 consists of “‘all California state prisoners who have been 1

1 sentenced to a life term with the possibility of parole for an

2 offense that occurred before November 4, 2008.’” ECF No. 340

3 ¶ 1.

4

Proposition 89 amended the California Constitution to grant

5 the Governor the authority to review parole decisions of

6 California’s Board of Parole Hearings (the “Board”), regarding

7 parole decisions of prisoners convicted of murder. 1988 Cal.

8 Legis. Serv. Prop. 89 (West), amending Cal. Const. Art. V, § 8.

9 The class challenging this Proposition consists of “‘all

10 California state prisoners who have been sentenced to a life term

11 with possibility of parole for an offense that occurred before

12 November 8, 1988.’” ECF No. 340 ¶ 2.

13

The matter came on for trial before the undersigned from

14 June 27, 2013 through July 2, 2013. For the reasons that follow,

15 the court finds that both Propositions, as implemented, have

16 violated the ex post facto rights of the class members.

17

I. THE EX POST FACTO CLAUSE

18

“The Constitution prohibits both federal and state

19 governments from enacting any ‘ex post facto Law.’” Peugh v.

20 U.S., 569 U.S. ___, 133 S. Ct. 2072, 2081 (2013).1 For purposes

21 of this case, an “ex post facto” law is one “‘that changes the

22 punishment, and inflicts a greater punishment, than the law

23 annexed to the crime, when committed.’” Id., 133 S. Ct. at 2078

24 (quoting Calder v. Bull, 3 Dall. 386, 390, 1 L. Ed. 648 (1798)).

25 “The key ex post facto inquiry is the actual state of the law at

26 1 U.S. Constitution, Art. I, Sec. 10, cl. 1 (“No State shall … 27 pass any … ex post facto Law”); U.S. Constitution, Art. I,
Sec. 9, cl. 3 (“No … ex post facto Law shall be passed”). 28
2

1 the time the defendant perpetrated the offense.” Watson v.

2 Estelle, 886 F.2d 1093, 1096 (9th Cir. 1989). Accordingly, as

3 relevant to this case, the Ex Post Facto Clause is violated if

4 either Proposition, as implemented by the decision-maker – the

5 Board in the case of Proposition 9, or the Governor in the case

6 of Proposition 89 – creates a “significant risk” that its

7 retroactive application to the class would result in “a longer

8 period of incarceration” for them than they would have received

9 under the law in effect when their crimes were committed. See

10 Garner v. Jones, 529 U.S. 244, 255 (2000); see also, Peugh, 133

11 S. Ct. at 2084 (a “retrospective increase in the [Sentencing]

12 Guidelines range applicable to a defendant creates a sufficient

13 risk of a higher sentence to constitute an ex post facto

14 violation”).

15

II. PROPOSITION 9: INCREASED TIME BETWEEN PAROLE HEARINGS

16

The focus of this court’s inquiry is fairly narrow, thanks

17 to a substantial body of law on the effect of the Ex Post Facto

18 Clause on retrospective changes in the availability of parole

19 hearings.

20

In California Dept. of Corrections v. Morales, 514 U.S. 499

21 (1995), the Supreme Court rejected an ex post facto challenge to

22 a 1981 amendment to Cal. Penal Code § 3041.5. The amendment

23 abolished mandatory annual parole hearings for prisoners

24 convicted of more than one homicide, even when annual hearings

25 were mandatory when the crimes were committed. Instead, the

26 enactment authorized the parole board to defer subsequent

27 suitability hearings for up to three years if the Board found

28 that it was “not reasonable to expect that parole would be 3

1 granted at a hearing during the following years.” Morales, 514

2 U.S. at 503.

3

Morales teaches that the mere fact that parole hearings are

4 less frequent than they were when a prisoner’s crime was

5 committed, is not, by itself, sufficient to establish an ex post

6 facto violation. Rather,

7

the controlling inquiry … was whether

retroactive application of the change in

8

California law created "a sufficient risk of

increasing the measure of punishment attached

9

to the covered crimes.”

10 Garner, 529 U.S. at 250 (quoting Morales, 514 U.S. at 509);

11 Gilman v. Schwarzenegger, 638 F.3d 1101, 1106 (9th Cir. 2011)

12 (“[a] retroactive procedural change violates the Ex Post Facto

13 Clause when it ‘creates a significant risk of prolonging [an

14 inmate's] incarceration’”).

15

Similarly, in Garner, the Supreme Court rejected an ex post

16 facto challenge to the Georgia parole board’s decision to do away

17 with mandatory parole hearings every three (3) years. That board

18 amended its rules so that it could defer parole hearings for up

19 to eight (8) years. “[T]he Board's stated policy is to provide

20 for reconsideration at 8-year intervals ‘when, in the Board's

21 determination, it is not reasonable to expect that parole would

22 be granted during the intervening years.’” Garner, 529 U.S. at

23 254. However, the Board “could have shortened the interval” had

24 it wished to do so. Id. at 248.

25

Garner teaches that no ex post facto violation will be found

26 where parole hearings can be at longer intervals than was the

27 case when the prisoner’s crime was committed, but the parole

28 board has the discretion to conduct hearings at the same interval 4

1 it could when the prisoner’s crime was committed.

2

Plaintiffs correctly point out that Morales and Garner are

3 not directly on point, because the challenged law changes

4 involved in those cases only authorized a longer deferral period,

5 and only when the Board determined that parole was not likely to

6 be granted in the intervening years. Proposition 9, on the other

7 hand, does away with the previously authorized annual parole

8 hearings in all cases, even if the prisoner conclusively showed

9 that he would be suitable for parole in a year. See Gilman, 638

10 F.3d at 1108 (“Proposition 9 eliminated the Board's discretion to

11 set a one-year deferral period, even if the Board were to find by

12 clear and convincing evidence that a prisoner would be suitable

13 for parole in one year”).

14

In Gilman, the Ninth Circuit made clear that

15

Plaintiffs cannot succeed on the merits of

their ex post facto claim unless

16

(1) Proposition 9, on its face, created a

significant risk of increasing the punishment

17

of California life-term inmates, or (2)

Plaintiffs can “demonstrate, by evidence

18

drawn from [Proposition 9's] practical

implementation ..., that its retroactive

19

application will result in a longer period of

incarceration than under the [prior law].” 20

21

Gilman, 638 F.3d at 1106 (quoting Garner, 529 U.S. at 255).

22 The Ninth Circuit reversed this court’s grant of a preliminary

23 injunction for plaintiffs, finding that even if plaintiffs could

24 show that there was a significant risk of longer incarceration

25 under Proposition 9, plaintiffs failed to establish that the

26 “advance hearing” procedure did not avoid that problem.

27

In a recent case addressing the Sentencing Guidelines, the

28 Supreme Court made clear that it meant what it said in Garner, 5

1 that is, a law that creates a sufficient risk of retrospectively

2 increasing a prisoner’s sentence is a violation of the Ex Post

3 Facto Clause. Peugh, 133 S. Ct. at 2084.

4

A. Increased Deferral Periods: Findings.

5

1. On November 4, 2008, California voters approved

6 “Proposition 9,” also known as “the Victims' Bill of Rights Act

7 of 2008: Marsy's Law.” See In re Vicks, 56 Cal. 4th 274, 278

8 (2013). 9

2. The law became effective “immediately,”2 and was

10 made expressly applicable “to all proceedings held after” its

11 effective date. 2008 Cal. Legis. Serv. Prop. 9, § 10 (West). The

12 board, however, did not instantaneously implement the new law.

13 Rather, the Board implemented the law – that is, started using

14 Proposition 9 to determine the deferral periods – on December 15,

15 2008. Exh. 1 (ECF No. 259-1) at 7 (Exhibit A to Exh. 1).

16

3. As relevant here, Proposition 9 “amended

17 section 3041.5 [of the California Penal Code] to increase the

18 time between parole hearings.” Vicks, 56 Cal. 4th at 283.

19

4. Before Proposition 9, life prisoners received annual

20 parole suitability hearings, as required by the prior versions of

21 Cal. Penal Code § 3041.5, unless the Board found that it was not

22 reasonable to expect that parole would be granted during the

23 following year. In those cases, the Board deferred the next

24 2 According to Vicks, the law became effective “immediately.”
25 Vicks, 56 Cal. 4th at 278. The California Constitution provides 26 that amendments effected by initiative become effective “the day
after the election unless the measure provides otherwise.” Cal. 27 Const. Art. XVIII, § 4; Californians For An Open Primary v.
McPherson, 38 Cal. 4th 735, 743 (2006) (same). 28
6

1 parole hearing for up to two years, and for up to five years for

2 prisoners convicted of murder, as authorized by the old law. See

3 1994 Cal. Legis. Serv. Ch. 560, § 1 (S.B. 826) (West), amending

4 Cal. Penal Code § 2041.5(b)(2)(A).

5

5. All the crimes for which Proposition 9 class members

6 were convicted occurred before Proposition 9.3 ECF No. 340 ¶ 1.

7 3 The court notes that crimes that could result in life terms
8 that were committed at different times were covered by different 9 versions of the parole hearings law. No party has suggested, or
directed the court to evidence suggesting, that any class 10 member’s crime was committed at a time when there was no right to
periodic review of parole hearings, or when the deferral periods 11 were longer than those provided for in Proposition 9.

12 Before 1972, California prisoners had a right, established by

13 case law, to “periodic” review of parole decisions, although there does not appear to have been any particular time period

14 within which the review had to occur. See In re Jackson, 39 Cal. 3d 464, 469-70 (1985).

15

Between 1972 and July 1, 1977, California prisoners were 16 entitled, by policy of the parole board, to annual parole

17

reconsideration, “‘except in certain extreme cases where reconsideration of parole may be postponed for two or three

18 years.’” See Jackson, 39 Cal. 3d at 470.

19 On July 1, 1977, the California Determinate Sentencing Law

(“DSL”) went into effect. Watson, 886 F.2d at 1094 (citing 20 Jackson, 39 Cal. 3d at 467). Under this enactment, all inmates

21

incarcerated on or after that date were statutorily entitled to annual parole hearings, without exception. Id.

22 In 1981, California enacted an exception to the annual parole
23 review requirement, permitting the Board to defer the next parole hearing for three years if the prisoner had been convicted of
24 “more than one offense which involves the taking of a life,” and the Board found, stating its bases in writing, that it was “not
25 reasonable to expect that parole would be granted at a hearing 26 during the following years.” Watson, 886 F.2d 1093.

27 In 1990, California amended Section 3041.5 to “permit the Board to schedule the next hearing no later than 5 years after any
28 hearing at which parole is denied if the prisoner has been
7

1 The class members were all convicted and sentenced to life in

2 prison with the possibility of parole, before Proposition 9.

3 After Proposition 9, all Proposition 9 class members remained

4 sentenced to life in prison with the possibility of parole. See

5 Undisputed Facts (“UF”), Final Pretrial Order (ECF No. 473)

6 ¶ III(2) (hereinafter “UF ¶ 2”).

7

6. In the two-year period before Proposition 9 was

8 implemented, January 2007 through December 2008, the Board held

9 approximately 6,550 parole suitability hearings for life

10 prisoners. Parole was granted in approximately 6.4% of the

11 hearings. Of the cases in which parole was denied, two-thirds

12 resulted in one- or two-year deferrals; approximately 34.7

13 percent resulted in one-year deferrals and approximately 31.5

14 percent resulted in two-year deferrals. UF ¶ 5.

15

7. The deferrals for those years were governed by the

16 1994 amendments to Cal. Penal Code § 3041.5. 1994 Cal. Legis.

17 Serv. 560 (SB 826) (West). Under that law, the Board was

18 required to hold annual parole hearings unless “the Board finds

19 that it is not reasonable to expect that parole would be granted

20 at a hearing during the following year.” Id.4 Therefore, it is

21 convicted of more than 2 murders.” 1990 Cal. Legis. Serv. 1053 22 (SB 560) (West).

23 In 1994, California amended Section 3041.5 to “require that the hearing be held no later than up to 5 years after the hearing
24 denying parole if the prisoner has been convicted of murder.” 1994 Cal. Legis. Serv. 560 (SB 826) (West).
25
26 4 The court is aware of the evidence in the record indicating that some prisoners agree that they are not currently suitable
27 for parole, and “stipulate” to a deferral period of, say, one year. Neither side has directed the court’s attention to any
28 evidence that in such cases the Board agrees to such a
8

1 a reasonable inference that the parole board found that for the

2 life prisoners whose parole hearings came before them during that

3 time, it was reasonable to expect that parole would be granted

4 for 35% of them after one year.

5

8. Under the same law, where the Board found that an

6 annual review was not warranted, it was required to impose a

7 deferral of two years, unless “the Board finds that it is not

8 reasonable to expect that parole would be granted at a hearing

9 during the following years [up to five years for prisoners

10 convicted of murder].” Id. Therefore, it is a reasonable

11 inference that the Board found that for the 32% of life prisoners

12 whose parole hearings resulted in two year deferrals during that

13 time, it was reasonable to expect that parole would be granted

14 for them after two years. Otherwise, the deferral periods would

15 have been 3, 4 or 5 years pursuant to the statute.

16

9. It is, further, a reasonable inference that of all

17 the inmates who had parole hearings during the two years prior to

18 implementation of Proposition 9, about two-thirds of them were

19 determined by the Board to be ready for parole within one or two

20 years.

21

10. In the two-year period after Proposition 9 was

22 implemented, January 2009 through December 2010, the Board held

23 approximately 6,100 hearings. At those hearings, parole was

24
stipulation even when it is not reasonable to expect that parole 25 would be granted during that year. Nor has either side directed 26 the court’s attention to evidence showing what percentage of
these 6,550 deferrals were stipulated. Accordingly, the court 27 does not, for these purposes, distinguish between stipulated
deferrals and those imposed by the Board. 28
9

1 granted in approximately 17 percent of the cases.5 Of the cases

2 in which parole was denied, approximately 48.4 percent resulted

3 in the lowest deferral possible under Proposition 9, three years. 4 UF ¶ 6.6

5

11. For the period 2007 to 2008, before the passage of

6 Proposition 9, the average deferral period for all life prisoners

7 who were denied parole at their hearing, was 2.3 years. See

8 Plaintiffs’ Exh. 51.7 Approximately 35% of those deferrals were

9 for the minimum period allowed by law, one year. An additional

10 32% of the deferrals were for two years. UF ¶ 5.

11

12. Following the passage of Proposition 9, the average

12 deferral periods for all life prisoners decided under the new law

13 were as follows: 4.84 years in 2009; 5.11 years in 2010; 5.08

14 years in 2011; 4.42 years in 2012. See Defendants’ Exh. U.8

15 5 Neither side offers an explanation for why the parole rate

16

almost trebled. With no evidence on it, there is no way for the court to consider this fact except to speculate. For example,

17 the Board may have been reluctant to impose a 3-year deferral on someone it believed would be ready for parole within the year,

18 and therefore granted parole immediately. Or, there could simply

have been a backlog of inmates ready for parole. However, this 19 is entirely speculation, and plays no part in the court’s

20 decision.

21 6 The parties included a recounting of several cases, in which the prisoners requested advanced hearings. To the degree the
22 cases seem relevant to an issue in the case, they are discussed or footnoted below.
23

24 7 This number is the weighted average of the deferral periods disclosed in Plaintiffs’ Exhibit 51. The average is a little
25 fuzzy, because Exhibit 51 does not specify what dates in 2007 to 26 2008 are included.
27 8 These numbers are the weighted averages of the deferral periods disclosed in Defendants’ Exhibit U.
28
10

1 Almost 56% of those deferrals were for the minimum period then

2 allowed by law, three years. See Defendants’ Exh. U.

3

B. Increased Deferral Periods: Conclusions.

4

The evidence shows that the average deferral times for

5 Proposition 9 class members has increased since the

6 implementation of that law. The Ninth Circuit cautioned however,

7 that it was not correct simply to assume that “more frequent

8 parole hearings produce more frequent grants of parole rather

9 than more frequent denials of parole.” Gilman, 638 F.3d at 1108

10 n.6 (emphasis in text).

11

The evidence adduced at trial shows however, that the

12 increased deferral periods did not happen randomly, or only to

13 those prisoners least likely to be granted parole. Rather, the

14 evidence shows that in the two years prior to Proposition 9, the

15 Board imposed deferral periods of one or two years on two-thirds

16 of all the prisoners who were denied parole. These are the

17 prisoners who are the most likely to be paroled within a year or

18 two. That is because the statute in effect at the time

19 contemplated that the Board would grant deferrals of one or two

20 years only when there was a reasonable expectation that the

21 prisoner would be ready for parole within that time. See 1994

22 Cal. Legis. Serv. 560 (West).

23

Of course, those prisoners were under no guarantee of

24 release on parole. However, if the statute had any meaning, and

25 the Board applied the statute as written, then it is a reasonable

26 inference that there existed a reasonable expectation that those

27 prisoners would be paroled within the following year or two, if

28 they could get to a parole hearing during that time. Yet, under 11

1 Proposition 9, these same prisoners cannot get to a hearing

2 before at least three years, the new minimum deferral period.

3 Cal. Penal Code § 3041.5(b)(3)(C). It follows that since there

4 was a reasonable expectation that these prisoners would be

5 paroled within one or two years, but Proposition 9 prevents them

6 from getting to a hearing before three years, there is a

7 significant risk that their incarcerations are being lengthened

8 by Proposition 9.

9

Even as to those prisoners who received deferral periods of

10 three, four or five years under the old law, Proposition 9 has

11 created a significant risk of longer incarceration. Under the

12 old law, deferrals of three or four years would be imposed if the

13 Board determined that there was a reasonable expectation that the

14 prisoner would be paroled during that time. In other words, at

15 the time their crimes were committed, these prisoners’

16 incarcerations (beyond a minimum term), were to continue only as

17 long as the Board found that the prisoner was not suitable for

18 parole.

19

Under Proposition 9 however, the prisoner’s incarceration

20 would continue indefinitely, unless the Board found “clear and

21 convincing evidence” that he was suitable for parole in 3, 5, 7

22 or 10 years.9 “Clear and convincing evidence,” the Proposition 9

23 standard, refers to a quantum and quality of evidence that “could

24 place in the ultimate factfinder an abiding conviction that the

25 truth of its factual contentions are ‘highly probable.’”

26
27 9 No particular showing is required, under Proposition 9, to get a hearing after a 15-year deferral.
28
12

1 Colorado v. New Mexico, 467 U.S. 310, 316 (1984) (emphases

2 added).

3

Since the old law and Proposition 9 are thus governed by

4 these two completely different standards, it is quite possible

5 that a prisoner could satisfy the old-law standard, but never

6 satisfy the Proposition 9 standard.

7

Indeed, this logically seems to be at greatest risk when

8 dealing with those subjected to the longest deferral periods,

9 those deferred for 3, 4 or 5 years under the old law. Such

10 prisoners, independently of how often they could get to a parole

11 hearing, would have little chance of ever giving the Board an

12 “abiding conviction” that it was “highly probable” that they were

13 suitable for parole.

14

The court therefore concludes that Proposition 9 has created

15 a significant risk of imposing a longer incarceration on the

16 class than was the case when their crimes were committed. This

17 conclusion is drawn from the evidence presented at trial, and the

18 reasonable inferences arising from it. However, the plaintiffs

19 further attempted to buttress their case by presenting actual

20 accounts of prisoners whose incarcerations, they assert, were

21 lengthened by Proposition 9. It is to that showing that court

22 now turns, keeping in mind that at the preliminary injunction

23 stage, the Ninth Circuit found that plaintiffs had, to that date,

24 “produced no evidence to support a finding that more frequent

25 parole hearings result in more frequent grants of parole.”

26 Gilman, 638 F.3d at 1108 n.6.

27 ////

28 //// 13

1

C. The Rutherford Litigation: Findings.

2

A somewhat detailed description of the Rutherford litigation

3 is useful because plaintiffs argue that a subset of the class

4 certified in In re Rutherford (Cal. Super. Ct., Marin County, No.

5 SC135399A), is representative of the Proposition 9 class

6 certified in this case, while defendants argue that there is

7 insufficient evidence to conclude that the Rutherford subset is

8 representative. Describing how the Rutherford class and subset

9 came into being is helpful in determining whether the Rutherford

10 subset is representative of the Proposition 9 class in this case.

11

13. On February 25, 2003, California life prisoner

12 Jerry Rutherford was denied parole, and given a one-year deferral

13 until his next hearing, pursuant to Cal. Penal Code § 3041.5, as

14 it then existed. See In re Lugo, 164 Cal. App. 4th 1522, 1529 15 (1st Dist. 2008).10 However, the Board failed to provide

16 Rutherford a parole hearing during the next year, although

17 required to do so by the law in effect at the time. Exh. 53

18 (admitted, over objection, at RT 30) (ECF No. 343-9) (“Stipulated 19 Testimony of Thomas Master”) ¶ 2.11

20

14. On May 26, 2004, Rutherford filed a petition for

21 habeas corpus in California state court, In re Rutherford (Cal.

22
23 10 Petitioner Lugo was substituted in as class representative after Rutherford’s death. Id., at 1532.
24 11 The parties stipulated that, if called to testify, Thomas
25 Master would testify as described in Exhibit 53. ECF No. 343-9. 26 At trial, with Master on the stand, defendants objected to the
Stipulated Testimony on hearsay grounds. RT 30. The objection 27 was overruled because Master was on the stand and was available
to be cross-examined on the Stipulated Testimony. Id. 28
14

1 Super. Ct., Marin County, No. SC135399A), challenging the delay

2 in his parole hearing. Lugo, 164 Cal. App. at 1529.

3

15. On November 29, 2004, the California Superior Court

4 hearing Rutherford certified a class of “all prisoners serving

5 indeterminate terms of life with the possibility of parole who

6 have approached or exceeded their minimum eligible parole dates

7 without receiving their parole hearings within the time required

8 by sections 3041 and 3041.5.” Lugo, 164 Cal. App. at 1530.

9

16. After the Rutherford class was certified, “the

10 Board stipulated that it was not providing timely parole

11 consideration hearings as required by the Penal Code.” Lugo, 164

12 Cal. App. at 1530.

13

17. On March 22, 2006, the parties agreed to a remedial

14 plan intended to reduce the backlog of parole hearings. Lugo,

15 164 Cal. App. at 1532.

16

18. When Proposition 9 was implemented, on December 15,

17 2008, life prisoners were still having their parole hearings

18 delayed beyond the dates when they should, by law, have occurred.

19 Because of this general timeliness problem the Board was having,

20 there arose a subset of the Rutherford class (“the Rutherford

21 subset”), who should have had their parole hearings conducted

22 under the old law, before Proposition 9’s implementation, but who

23 in fact did not (or would not) receive their hearings until after

24 implementation. See Exh. 1, Exhibit A (Rutherford Stipulation)

25 (ECF No. 259-1) at 7 (admitted over objection at RT 26). Their

26 hearings were (or were scheduled to be) conducted under

27 Proposition 9.

28

19. To avoid having their hearings decided under

15

1 Proposition 9, the Rutherford subset sought a preliminary

2 injunction enjoining the Board from implementing Proposition 9 as

3 to them. See id., Exhibit A at 7.

4

20. The preliminary injunction proceeding was settled

5 with a stipulation. Prisoners who qualified for the stipulation

6 were those prisoners in the Rutherford subset whose pre-

7 Proposition 9 hearings were delayed until after Proposition 9,

8 because of reasons attributable to the State, or because of 9 “exigent circumstances,”12 and those whose hearings commenced

10 before Proposition 9, but which were continued to a date after

11 Proposition 9. Exh. 1, Exhibit A at pp. 9-10 ¶ 4(a)-(d); Exh. 53

12 at ¶ 6. Excluded from this stipulation were those Rutherford

13 subset members who were granted parole or who elected to waive or

14 postpone their hearings through no fault of the Board or exigent

15 circumstances. Exh. 53 ¶ 6.

16

21. Under the stipulation, all qualifying Rutherford

17 subset members who should have had their parole hearings

18 conducted before December 15, 2008 under the old law, were

19 granted hearings governed by the old law, even if those hearings

20 occurred after the implementation of Proposition 9. Master Decl.

21 (Exh. 1) ¶ 5. Further, in the event the life prisoner’s delayed

22
23 12 Exigent circumstances are (a) natural disaster, (b) institution security or medical lockdown/quarantine, (c) illness or emergency
24 of an essential party, (d) power outage or equipment failure, (e) prisoner medically or psychiatrically unavailable,
25 (f) attorney not prepared to proceed or became unavailable after 26 hearing was scheduled. Exhibit A at p.9 ¶ 4(c) & p.14. This
group includes prisoners who postponed their hearings to a date 27 before Proposition 9, but the hearing was not provided before
Proposition 9. 28
16

1 hearing had already been conducted under Proposition 9, and

2 parole had been denied, the Board agreed to re-calculate the 3 deferral period using the old law. Id.13 In other words, the 3-,

4 5-, 7-, 10- and 15-year deferrals under Proposition 9 would be

5 recalculated to 1-, 2-, 3-, 4- or 5-year deferrals under the old

6 law.

7

22. The parties in Rutherford stipulated that 442 such

8 prisoners, identified at Exh. 20 (admitted per PTO), were covered

9 by the stipulation. UF ¶ 14; (RT 26-29, Master testimony).

10

23. Of the 442 prisoners who received the

11 modifications, 305 had, as of March 2011, received their

12 subsequent hearings after the modifications; of those 305

13 prisoners, 51 (16.7%) were granted parole at their hearings. UF

14 ¶ 15.

15

24. In addition to the 442 prisoners who received

16 modifications of their Proposition 9 deferrals to old-law

17 deferrals due to the Rutherford litigation, there were 408 other

18 prisoners who had been entitled to their hearings before

19 Proposition 9 but had not yet had their hearings at the time

20 Proposition 9 was implemented; pursuant to a stipulation in the

21
22 13 Some covered prisoners chose to stipulate to a deferral period, rather than go forward with their delayed, Proposition 9 parole
23 hearing. In those cases, all the new, old-law deferral periods were set by agreement. Master Decl. ¶ 10. For those convicted
24 of murder: all 3-year stipulations were converted to 1-year, 5year stipulations to 2-years, 7-years to 3-years, 10-years to 4-
25 years, and 15-years to 5-years. Master Decl. ¶ 10. For those 26 not convicted of murder: all 3-year stipulations were converted
to 1-year (identically with those convicted of murder), and all 27 other stipulated deferrals (5-, 7-, 10- and 15-year deferrals),
were converted to 2-year deferrals. Id. 28
17

1 Rutherford case, those prisoners' first post-Proposition 9

2 hearings were to be governed by the old law. As of April 6,

3 2011, of those 408 prisoners, 247 were denied parole and given

4 old-law (one- to five-year) deferrals. As of April 6, 2011, 88

5 of the 247 had reached their next hearing (because they had

6 received only one- or two-year deferrals at their first post-

7 Proposition 9 hearings), and 25 (28 percent) were granted parole

8 at their hearings. UF ¶ 16.

9

25. Of the 240 prisoners in the Rutherford subset who

10 received or stipulated to the minimum 3-year deferral under

11 Proposition 9, (a) 102 had their deferral dates reduced to the 12 minimum 1-year deferral in a hearing under the old law,14 (b) 60

13 had their deferral dates reduced to a 2-year deferral (the

14 second-shortest deferral) in new hearings under the old law, and

15 (c) none had their deferral dates stay the same or get increased 16 using the old law. Exh. 20 (admitted per PTO).15 Parole was 17 granted in 43 of those cases. Exh. 54 (admitted at RT 32).16 As

18

19 14 An additional 78 stipulated to parole unsuitability for 3 years

at their Proposition 9 hearings. Exh. 20 at 43-49 (entries with 20 “S” in the decision column are these stipulations). In that

21

case, the old-law deferral period was reduced to one year by agreement, apparently without the need for a new hearing

22 conducted under the old law. Exh. 1 at 10 ¶ 10.

23 15 Exhibit 20 is a chart of the prisoners covered by the Rutherford stipulation. It includes a column that shows the
24 original deferral date calculated under Proposition 9 (“Original
Hearing Info / Result Length”), and a column that shows the new 25 deferral date, calculated under the old law (“Modified Hearing
26 Info / Length”). See RT 27-28.

27 16 Exhibit 54 is a summary chart showing parole grants after the Rutherford modifications.
28

18

1 noted above, the Board’s decision to defer a parole hearing for

2 only one or two years is made when there is a reasonable

3 expectation that the prisoner will be granted parole during the

4 next year or two. The conclusion appears to be inescapable,

5 then, that for most of those 240 prisoners (that is, 162 of them,

6 which excludes those subject to the agreed-to deferrals), there

7 was a reasonable expectation that they would be granted parole in

8 one or two years. Yet, if their Proposition 9 deferrals had

9 stood, they would have been unable to even get to a parole

10 hearing for three years.

11

26. Of the 104 prisoners in the Rutherford subset who

12 received or stipulated to a five (5) year deferral under

13 Proposition 9, seventy-four of them had their deferral periods

14 re-calculated under the old law.17 As a result, (a) one had the

15 deferral reduced to the 1-year minimum, (b) forty-eight had their

16 deferrals reduced to two years, the next-shortest available,

17 (c) seventeen had their deferrals reduced to 3 years, and

18 (d) eight had their deferrals reduced to 4 years in new hearings

19 conducted under the old law. None had their deferrals stay the

20 same, and it was not possible to get a greater deferral under the

21 old law. Exhs. 20 & 54. Therefore, for most of these prisoners

22 (74, which excludes those subject to agreed-to deferrals), there

23 was a reasonable expectation that they would be granted parole in

24 one to four years. Yet, if their Proposition 9 deferrals had

25
26 17 An additional thirty of these prisoners stipulated to 5-year deferrals under Proposition 9, and so their deferrals were
27 reduced to 2-year old-law deferrals by agreement. See Exhibit A, ¶ 10.
28
19

1 stood, they would have been unable to even get to a parole

2 hearing for five years.

3

27. Of the 53 prisoners in the Rutherford subset who

4 received or stipulated to a seven (7) year deferral under

5 Proposition 9, thirty-nine had their deferral periods re6 calculated under the old law.18 As a result, (a) none received

7 either the 1-year minimum or the 5-year maximum deferral, (b) six

8 had the deferral reduced to 2 years, the next shortest deferral

9 under the old law, (c) seventeen had their deferrals reduced to

10 three (3) years, and (d) 16 had their deferrals reduced to 4

11 years. Exhs. 20 & 54. It was not possible to get an equal or

12 longer deferral under the old law. Therefore, for most of these

13 prisoners, there was a reasonable expectation that they would be

14 granted parole in one to four years. Yet, if their Proposition 9

15 deferrals had stood, they would have been unable to even get to a

16 parole hearing for seven (7) years.

17

28. The 31 prisoners in the Rutherford subset who

18 received a ten (10) year deferral (the next-to-longest deferral

19 possible) under Proposition 9, all had their deferrals re-

20 calculated under the old-law.19 As a result, (a) none received

21 the 1-year minimum deferral, (b) somewhat surprisingly, six (6)

22 had the deferral reduced to 2 years, the next shortest deferral

23 18 An additional fourteen of these prisoners stipulated to 7-year
24 deferrals under Proposition 9, and so their deferrals were reduced, by agreement, to 2-year old-law deferrals, or 3-year
25 old-law deferrals if their convictions were for murder. See 26 Exhibit A, ¶ 10.
27 19 According to Exh. 20, none of these prisoners stipulated to deferrals under Proposition 9.
28
20

1 under the old law,20 (c) 20 had their deferrals reduced to four

2 (4) years and (d) 5 had their deferrals reduced to 5 years, the

3 maximum deferral under the old law. Exhs. 20 & 54. It was not

4 possible to get an equal or longer deferral under the old law.

5

29. Therefore, for the majority of these prisoners (26

6 out of 31), there was a reasonable expectation that they would be

7 granted parole in one to four years. Yet, if their Proposition 9

8 deferrals had stood, they would have been unable to even get to a

9 parole hearing for ten (10) years.

10

30. Of the 14 prisoners in the Rutherford subset who

11 received the maximum, 15-year deferral under Proposition 9,

12 (a) none received the 1-year minimum deferral, (b) somewhat

13 remarkably, five (5) had the deferral reduced to 2 years, the

14 next shortest deferral under the old law, (c) none had their

15 deferrals reduced to 3 years, (d) one had the deferral reduced to

16 four (4) years and (d) eight (8) had their deferrals reduced to 5

17 years, the maximum deferral under the old law. Exhs. 20 & 54.

18 It was not possible to get an equal or longer deferral under the

19 old law.

20

31. Thus, most of those who received the maximum, 15-

21 year, deferral under Proposition 9, also received the maximum, 5-

22 year, deferral under the old law. The law thus imposed an

23 irrebutable presumption on these prisoners that they would not be

24 20 This is the old-law deferral these six would have received by
25 agreement, if they had stipulated to deferrals under 26 Proposition 9, and if their commitment offenses were other than
murder. Without this agreement, it seems surprising that their 27 next-to-longest deferrals would be re-calculated to the next-to-
shortest level. 28
21

1 suitable for parole for 15-years, removing the old-law

2 possibility that at least every five years, the prisoner could

3 demonstrate suitability.

4

32. As for the five prisoners whose deferrals dropped

5 from 15 years under Proposition 9 to 2 years under the old law,

6 the reduction seems remarkable because having received the

7 maximum, 15-year deferral under Proposition 9, these five

8 prisoners received the next shortest deferral available under the

9 old law. It is a reasonable inference from this that in December

10 2008 and January 2009, the Board did not have “clear and

11 convincing evidence” that those prisoners would be ready for

12 release for the next 15 years. Yet, making the calculation under

13 the old law about three months later (in March and April 2009),

14 the Board concluded that these same prisoners would be ready for

15 release within 2 years. Exh. 20.

16

33. These five prisoners may thus have played out the

17 disturbing scenario mentioned earlier, namely that prisoners who

18 would be paroled under the old law could never show with the

19 “clear and convincing evidence” required by Proposition 9, that

20 they were ready for parole.21

21

34. There exists a separate group of 408 prisoners who

22 also had post-Proposition 9 deferrals decided under the old law.

23 Exh. 56 (ECF No. 343-12) (admitted at RT 117). Of the 247

24 prisoners in that group who were denied parole, 91 received the

25 21 These five (Ambers, Pinell, Storey, Case and Martin) are not 26 recorded as having stipulated to a deferral. See Exhibit 20.
Had they stipulated, and if their crimes were other than murder, 27 then the deferral would have dropped from 15 years to 2 years
under the Rutherford agreement. 28
22

1 minimum one-year deferrals, and 22 of them were granted parole.

2 Id. Of the group, 87 received 2 year deferrals (the next

3 shortest under the old law), and 2 of them were granted parole.

4 Id.

5

35. The actual effect of Proposition 9 on a sample

6 group of life prisoners affected by the Rutherford litigation is

7 set forth below. See Exh. 20 & 55 (binder) (all columns except

8 the last two admitted at RT 222-23).22

9

a. Life prisoner A. Taylor (Exh. 20 ¶ 300)

10 received a Proposition 9 parole hearing in January 2009. Taylor

11 was denied parole, and given the minimum deferral permitted under

12 Proposition 9, three years, on January 2012. However, because

13 the prisoner was covered by the Rutherford litigation, the Board

14 re-calculated the deferral, using the old law. Using the old

15 law, the Board deferred Taylor’s hearing two (2) years, or until

16 January 2011. This meant that the Board believed that there was

17 a reasonable chance that the prisoner would be granted parole in

18 two years (otherwise, it was required by the old law to defer the

19 hearing 3, 4 or 5 years). In fact, the Board granted Taylor

20 parole at the January 2011 hearing, and the prisoner was released

21 on parole in June 2011. Thus, Taylor was released under the old

22 law before a parole hearing could even have occurred under

23

24 22 The court determined that the last two columns, although not
25 admitted as evidence, represented what the witness, Monica Knox, 26 would have testified to, if the court were inclined to drag out
the trial. RT 222-23. Defendant was granted the opportunity to 27 cross-examine the witness on those columns as if she had so
testified in court. 28
23

1 Proposition 9.23

2

b. Life prisoner H. Tuey (Exh. 20 ¶ 152) received

3 a Proposition 9 parole hearing in December 2008. Tuey was denied

4 parole, and given the minimum 3-year deferral permitted under

5 Proposition 9, to December 2011. However, because the prisoner

6 was covered by the Rutherford litigation, the Board re-calculated

7 the deferral under the old law. Using the old law, the Board

8 gave Tuey the minimum 1-year deferral, to December 2009. This

9 meant that the Board believed that there was a reasonable chance

10 that Tuey would be granted parole the following year (otherwise,

11 it was required by the old law to defer the hearing 2, 3, 4 or 5

12 years). In fact, the Board granted Tuey parole at the

13 December 2009 hearing, and the prisoner was released on parole in

14 May 2010. Thus, Tuey was released under the old law one and one-

15 half years before the next parole hearing could even have 16 occurred under Proposition 9.24

17

c. Life prisoner A. Flores (Exh. 20 ¶ 302)

18 received a Proposition 9 parole hearing in December 2008, but

19 was denied parole, and given a seven (7) year deferral, to

20 23 Similar results obtain for seven (7) other life prisoners

21

identified by plaintiffs, namely, P. Guerrero, J. Morales, R. Willis, R. Morton, R. DeCid, N. Powell and G. Balaoing.

22 24 Similar results obtain for 42 other life prisoners identified
23 by plaintiffs, namely, I. Kegler, R. Anderson, Curry, M. Arthur, S. Law, P. Syzemore, D. James, R. Hamilton, C. Henderson,
24 G. Zavala, R. Perez, R. Stewart, O. Boone, C. Salgado, G. Rounds,
G. Counts, A. Saucedo, A. Marin, E. Reams, B. Barnard, 25 T. Pacheco, B. Jackaway, J. Anderson, J. Moreno, J. Acosta,
26 B. Weatherly, T. Davis, J. Masoner, D. Cordar, A. Harrell, C. Racca, M. Gaona, D. Schlappi, H. Oropeza, A. Garcia, E.
27 Russell, Kwitkowski, J. Bonilla, R. Espinola, J. Crespo, F. Hill and A. Hanna.
28

24

1 December 2015. Under Proposition 9, this deferral is given when

2 the Board finds “by clear and convincing evidence” that the

3 prisoner need not be incarcerated for more than seven additional

4 years. Under this circumstance, the Board had the choice of

5 deferring for 3, 5 or 7 years. Because the prisoner was covered

6 by the Rutherford litigation, the Board re-calculated the

7 deferral under the old law. Using the old law, the Board gave

8 Flores a 3-year deferral, to December 2011. This meant that the

9 Board believed that there was a reasonable chance that Flores

10 would be granted parole in three years, (otherwise, it was

11 required by the old law to defer the hearing 4 or 5 years). In

12 fact, the Board granted Flores parole at the November 2011

13 hearing, and the prisoner was released on parole in May 2012.

14 Thus, Flores was released under the old law three years before

15 the next parole hearing that had been granted under

16 Proposition 9.

17

d. Life prisoner C. Orduna (Exh. 55 ¶ 19)

18 received a Proposition 9 parole hearing in March 2009. Orduna

19 was denied parole, and given a five (5) year deferral, to March

20 2014. Under Proposition 9, this deferral is given when the Board

21 finds “by clear and convincing evidence” that the prisoner need

22 not be incarcerated for more than five (5) additional years.

23 Under this circumstance, the Board had the choice of deferring

24 for 3, 5 or 7 years. Because the prisoner was covered by the

25 Rutherford litigation, the Board re-calculated the deferral under

26 the old law. Using the old law, the Board gave Orduna a 2-year

27 deferral, to 2011. This meant that the Board believed that there

28 was a reasonable chance that Orduna would be granted parole in 25

1 two years, (otherwise, it was required by the old law to defer

2 the hearing 3, 4 or 5 years). In fact, the Board granted Orduna

3 parole at the April 2010 hearing, and the prisoner was released

4 on parole in October 2010.

5

Thus, Orduna was released under the old law before the

6 earliest date the next parole hearing could even have occurred

7 under Proposition 9.25

8

36. An additional group of 24 life prisoners had their

9 3-year Proposition 9 deferrals (the minimum permitted under 10 Proposition 9), reduced through individual court orders.26 See

11 Exh. 58 (binder) (all columns except the last two admitted at RT

12 25 Similar results obtain for 4 other life prisoners identified by 13 plaintiffs, namely, C. Luong, J. Barrigan, M. Luna and M. Bunney.

14 The court rejects, however, Knox’s testimony of what is the “earliest release” date under Proposition 9 for several

15 prisoners. See Exh. 55. According to Knox’s testimony, this was

the earliest release date if the prisoner “had gotten the 16 shortest Prop 9 deferral possible.” RT 219. The shortest

17

deferral possible under Proposition 9 was three (3) years. See Cal. Penal. Code § 3041.5(b)(3)(C) (defer for 3, 5, or 7 years if

18 prisoner does not require incarceration for more than seven additional years). However, it appears that Knox used the actual

19 deferral given under Proposition 9 rather than the “shortest”

deferral possible, in her calculation. 20

21

This apparent error was avoided in the calculation for J. Alvarez, but repeated for J. Coleman, B. Jimenez, C. Luong, B.

22 Martinez, J. Barrigan, C. Escobar, M. Luna, P. Velazquez, M. Bunney and G. Tuzon. However, even correcting these errors,

23 Orduna, Luong, Barrigan, Luna and Bunney were released under the

old law sooner that they could even have gotten a parole hearing 24 under Proposition 9.

25 26 L. Garcia, A. Marcelo, A. Criscione, A. Bics, S. Murphy, R. 26 Young, J. Powell, M. Fairfax, E. Juarez, R. Hudson, J. Alexander,
D. Kurtzman, R. DeLaBarcena, M. Berger, I. Sepulveda, M. Barajas, 27 O. Willis, H. Rosales, A. Aguilar, S. Contreras, E. Estrada, J.
Portillo, H. Jimenez and L. Liftee. Exh. 58. 28
26

1 222-23).27 Each of these life prisoners received parole hearings

2 earlier than would have been permitted under Proposition 9, and

3 each was released on parole before they even could have had a

4 parole hearing under Proposition 9. Id.

5

37. Dr. Barry Krisberg was qualified to testify as an

6 expert on criminology, sociology and statistics. (RT 73-74.)

7 Dr. Krisberg opined that there was no systematic bias in the

8 Rutherford subset that would make it different from the class in

9 this case. (RT 76.)

10

38. According to Dr. Krisberg, “comparing the outcomes

11 of the Rutherford Group to the class as a whole is a valid

12 research design to determine the effect of the new law.”

13 (RT 85.)

14

39. Dr. Stephen Klein was qualified to testify as an

15 expert in statistics. (RT 100.) Dr. Klein opined that “it’s too

16 soon to know what the effects of Proposition 9 are.” (RT 101.)

17 Dr. Klein disagreed with Dr. Krisberg that the Rutherford subset

18 was unbiased, or was representative of the plaintiff class as a

19 whole. Dr. Klein believed that Dr. Krisberg erred by not

20 “controlling” the Rutherford subset for “case characteristics.”

21

40. Dr. Klein identified two factors that, he opined,

22 defeated Dr. Krisberg’s assertion that the Rutherford subset was

23 an unbiased “natural experiment,” and was therefore

24 representative of the class as a whole. The first is Dr. Klein’s

25 27 Once again, the court found that the last two columns 26 represented what the witness, Monica Knox, would have testified
to, if the court were inclined to drag out the trial. Defendant 27 was granted the opportunity to cross-examine the witness on those
columns as if she had so testified in court. 28
27

1 assertion that the hearing mandated by the Rutherford litigation

2 “could be two years” after the initial post-Proposition 9

3 hearing. RT 106. Neither Dr. Klein nor defendants’ counsel ever

4 identified any document or other evidence from which he drew this

5 “two years” figure.

6

41. The other factor Dr. Klein identified is that “the

7 people doing the second hearing may or may not have known the

8 outcome of the first hearing, and that could be affecting

9 things.” (RT 106.) Dr. Klein does not identify any law,

10 document or other evidence indicating that the decision-makers in 11 the second hearing knew the outcome of the first hearing.28 Nor

12 does he identify any document or evidence showing that knowing

13 the prior outcome would make any difference to the second

14 decision-makers.

15

42. Dr. Klein opined that in order for Dr. Krisberg’s

16 “natural experiment” to be valid, “[w]hat you’d want to do is you

17 want to get the characteristics of the Rutherford Group and the

18 characteristics of the non-Rutherford group in the larger

19 population to see whether those characteristics are the same.”

20 (RT 108-09.) Dr. Klein concluded that because Dr. Krisberg did

21 not do this, his “natural experiment” was not valid. Dr. Klein

22 did not identify any case characteristics between the two groups

23 that were different, or that could affect the outcome.

24
25 28 Under Proposition 9, the Board is expressly directed to consider the findings and conclusions “reached in a prior parole
26 hearing,” although it is not binding. Even assuming a similar direction applied under the old law or regulations, it is not
27 clear that the vacated hearings in Rutherford would qualify as a prior parole hearing.
28
28

1

D. The Rutherford Litigation: Conclusions.

2

The court finds that Dr. Klein’s testimony does not really

3 bear on the question before the court, namely, whether

4 Proposition 9 created a “significant risk” of longer

5 incarceration. This is not the same as waiting to see what the

6 different lengths of incarceration are, years from now, and

7 looking back to see whether they were longer after Proposition 9

8 passed. The question is whether, looking forward, there is a

9 significant risk of increased incarceration. If the court were

10 to rely upon Dr. Klein’s testimony, this court could not reach

11 any conclusion about the constitutionality of Proposition 9 until

12 some time in the indefinite future when all the class members had

13 either been released or died.

14

Even if Dr. Klein’s testimony were pertinent, the court

15 rejects it. Dr. Klein opines that there is no way for Dr.

16 Krisberg to know that the Rutherford subset is representative of

17 the class as a whole. The basis for this opinion is that

18 Dr. Krisberg did not “control” for case characteristics. Because

19 of this, Dr. Klein opines, there is no way to know whether

20 something other than the accident of calendaring -- such as

21 individual case characteristics, or some biasing factor that

22 caused the “accident” of calendaring – distinguishes the

23 Rutherford subset from the class here.

24

There are several problems with this assertion. First,

25 neither the defendants nor Dr. Klein offer any evidence of any

26 case characteristics that would distinguish the Rutherford subset

27 from the class. Defendants have access to all the prisoners’

28 central files, and yet they have not identified any of the 29

1 differences that Dr. Klein speculates might possibly exist. The

2 court infers from this failure to produce any such evidence, that

3 there is none.

4

Second, the evidence before the court plainly shows that

5 there is no overall difference that would make a difference

6 between the Rutherford subset and the class. Dr. Klein

7 identifies two possible differences in case characteristics. He

8 asserts that “the time between the two hearings could be two

9 years, things could happen that would be affecting whether

10 somebody got a parole grant during that two-year period.”

11 RT 106.

12

This basis is flatly contradicted by the evidence.

13 Exhibit 20 is the defendants’ own compilation of every member of

14 the Rutherford subset. It shows that in almost every single

15 case, the time between the two hearings for the Rutherford

16 prisoners is just under one month (e.g., Tilford), to just under

17 five (5) months (e.g., Hill), with the overwhelming majority

18 being about 3 or 4 months apart. Exhibit 20. In only two cases

19 that the court was able to identify, namely, Harrell (11 months)

20 and Moore (10 months), was the time difference greater than 5

21 months.

22

If Dr. Klein’s assertion had been based upon actual evidence

23 in the case, the court would consider it, since the time between

24 hearings, and possibility of changes in case characteristics that

25 could occur during that time, most notably “institutional

26 behavior,” is pertinent to whether parole would be granted. See

27 Cal. Admin. Code, tit. 15, § 2281(d)(9) (finding of suitability

28 for release is better when “[i]nstitutional activities indicate 30

1 an enhanced ability to function within the law upon release”).

2 Since Dr. Klein’s assertion was based upon an apparently made-up

3 number of “years” between the initial Proposition 9 hearing and

4 the old-law hearing gained through the Rutherford litigation, the

5 court must discard Dr. Klein’s opinion, as to this factor.

6

Finally, the evidence before the court tends to show that

7 the relevant case characteristics were not different between the

8 two groups. This conclusion can be inferred from the fact that

9 the case characteristics that matter are set forth in the

10 regulations governing the determination of parole suitability,

11 id. § 2281(b)-(d), and the fact that both groups wound up with

12 the full range of outcomes. In other words, the case

13 characteristics are inferable from the outcome. If the

14 Rutherford subset was, for example, crowded with multiple

15 murderers who showed no remorse, there would be few among them

16 receiving the minimum deferral, and many receiving the maximum.

17 But defendants have identified no such skewing in the

18 distribution of outcomes in the record.

19

The court finds that the Rutherford subset is representative

20 of the Proposition 9 class as a whole. The evidence submitted on

21 this matter shows that the Rutherford subset is distinguished

22 from the Proposition 9 class only by the accident of when their

23 parole hearings were scheduled on the calendar. There is no

24 evidence that the case characteristics are different between the

25 two groups. There is no evidence that something about the

26 accident of calendaring was anything other than an accident of

27 the calendar.

28

For example, there is no evidence that only those most or

31

1 least likely to be paroled moved into the Rutherford subset.

2 Rather, the evidence is clear that the Rutherford subset came

3 into existence because the Board had a backlog that applied to

4 all life prisoners, not any particular subset of them based upon

5 any case characteristics. Dr. Klein’s speculation on possible

6 differences in case characteristics is therefore a red herring,

7 especially since Dr. Klein, who presumably had access to the

8 central files of the class as well as the Rutherford group, did

9 not identify a single case characteristic that distinguished the

10 two groups.

11

The court therefore finds that plaintiffs have properly

12 buttressed their showing that Proposition 9 actually did create a

13 significant risk that their incarcerations would be lengthened.

14 In addition to the inferences to be drawn from how the Board

15 imposes deferral periods, the Rutherford subset shows that in

16 fact, some members of the class had their incarcerations

17 lengthened by Proposition 9, but were rescued from that result by

18 the Rutherford stipulation.

19

The experience of the Rutherford subset thus shows that

20 while it is true that more frequent parole hearings result in

21 more frequent denials for some, it is also true that they result

22 in more frequent grants of parole for others.

23

III. PROPOSITION 9: THE “ADVANCED HEARING” PROCESS

24

A. Findings.

25

43. A life prisoner who has been denied parole may

26 request that the Board exercise its discretion to advance a

27 hearing to an earlier date. See UF ¶ 4.

28

44. From the passage of Proposition 9 through April 6,

32

1 2011, when a full review of a petition to advance was ordered,

2 the review was conducted by a Board employee at the prison where

3 the prisoner was housed so that the prisoner's entire file could

4 be reviewed. The prisoners were not present or represented by

5 counsel when their files were reviewed. UF ¶ 13.

6

45. During the period from January 1, 2009 through

7 December 31, 2010, there were 119 petitions to advance filed by

8 prisoners. Of those, 114 (approximately 96%) were denied; 106

9 (approximately 93%) were summarily denied and eight

10 (approximately 7%) were denied following a full review. UF ¶ 7.

11

46. From 2009 to June 2012, the Board has not exercised

12 its discretion to advance a hearing absent a prisoner filing a

13 petition to advance. UF ¶ 26.

14

47. Although the procedure for making this request does

15 not appear to be reflected in the Board’s official regulations,

16 the Board’s Executive Officer, Jennifer Shaffer, testified about

17 the Board’s process for determining whether an expedited hearing

18 is warranted for a particular inmate. (RT 263-95.)

19

48. The prisoner starts this process by completing Form

20 1045, Exhibit 35 (ECF No. 341-3), entitled “State of California /

21 Board of Parole Hearings / Petition To Advance Hearing Date.”

22 (RT 265.) The form instructs the prisoner to list the changed

23 circumstances or new information that “show a reasonable

24 likelihood that consideration of the public and victim’s safety

25 does not require the additional period of incarceration” that was

26 set at the last parole suitability hearing. Exh. 35 at BPH-44.

27 The prisoner is also instructed to submit with the petition all

28 33

1 supporting documents. Id.29

2

49. Prior to March 1, 2014, the submitted petition was

3 first given a “preliminary review.” See Exh. 35 at BPH-45. At

4 this stage, according to Exhibit 35, the petition could be

5 “Summarily Denied” if (1) the prisoner was seeking to advance the

6 wrong type of hearing, (2) the petition was not timely or (3) the

7 petition contained “[n]o evidence of new information or a change

8 in circumstances warranting further review.” Id. The first two

9 reasons were plainly jurisdictional, in that such petitions were

10 not within the statute. See Exh. 38 at BPH-12 (BPH training

11 material) (admitted at RT 210).

12

50. As for the third issue, the training provided to

13 the decision-makers states that the prisoner first had to assert

14 that there was “new information” or a “change in circumstances”

15 without regard to any showing or assertion of suitability. See

16 Exh. 38 at BPH-14. In other words, a mere showing of suitability

17 was not sufficient to warrant an advance hearing; there had to

18 be, in addition, some “new information” or “change in

19 circumstances.” See also Exh. 40 (admitted at RT 211) (ECF

20 No. 341-8) at BPH-36 (defendants’ explanation of “preliminary

21 review” states that “[m]inimally, the prisoner must make a valid

22 assertion of a change in circumstances or new information in

23 order to avoid the BPH summarily denying the petition”).

24

51. In addition to that assertion (of changed

25 circumstances or new evidence), the prisoner then had to

26
27 29 The form was amended on March 1, 2014, although it appears that prisoners still fill out Exhibit 35. However, the decision-
28 makers now use Exhibit 2B instead. (RT 265-66.)
34

1 establish, still in the “preliminary review” stage, that there

2 was a “reasonable likelihood” that the prisoner no longer

3 required additional incarceration. See Exh. 38 at BPH-15. The

4 petition would be “Summarily Denied” if “other evidence shows”

5 that the prisoner was “unsuitable for parole despite the change

6 in circumstances” or “new information.” Id.

7

52. The “full review” required the prisoner to again

8 establish “a reasonable likelihood,” considering the safety of

9 the public and victim, that the prisoner no longer required

10 incarceration. See Exh. 38 at BPH-17.

11

53. After March 1, 2014, the decision-making process

12 was changed. Instead of a “preliminary review” followed by a

13 “full review,” there is now a “jurisdictional review,” followed

14 by a “full review.” (RT 272) (Shaffer Testimony).

15

54. The jurisdictional review is conducted by legal

16 analysts, and determines only whether to screen out petitions

17 where (1) the prisoner was seeking to advance the wrong type of 18 hearing,30 or (2) the petition was not timely. (RT 272-73.)

19

55. The jurisdictional review does not involve any

20 determination on the merits. (RT 276.) This is in contrast to

21 the pre-March 1, 2014 procedure, in which the “preliminary

22 review” included a merits determination on whether the prisoner

23 had shown a change of circumstances warranting further review.

24 See, e.g., Exh. 38 of BPH-145.

25

56. If the petition survives the jurisdictional review,

26 30 For example, there are medical parole suitability hearings, 27 documentation hearings and progress hearings, none of which are
included in the advance hearing process. (RT 275.) 28
35

1 it moves to a “full review,” which is a merits review conducted

2 by a Commissioner or Deputy Commissioner. (RT 277-83.) This

3 review is conducted based upon documents, possibly including the

4 prisoner’s “central file,” or some portion of it, and does not

5 include a hearing. (RT 284-308.)

6

57. The standard for advancing a hearing is whether

7 there is a “reasonable likelihood that additional incarceration,

8 after consideration of the public safety and the [victim’s]

9 safety, is no longer necessary.” (RT 284.) It is not the 10 suitability standard.31 (RT at 288.)

11

58. When the PTA is submitted, the Board places a hold

12 on a hearing date 9 months from that date, in order to ensure

13 that a hearing date will be available if the PTA is granted.

14 (RT 277-78.) Accordingly, a prisoner who wishes to have a new

15 hearing in a year must file the PTA immediately, but in any

16 event, no later than 3 months from the date of the parole denial.

17 Thus, the inmate can use at most 3 months worth of “changed

18 circumstances” or “new information” to convince the decision-

19 maker to grant him an advance hearing. Accordingly, whatever

20 21 31 The standard for suitability is:

22

The panel or the Board, sitting en banc,

shall set a release date unless it determines

23

that the gravity of the current convicted

offense or offenses, or the timing and

24

gravity of current or past convicted offense

25

or offenses, is such that consideration of

the public safety requires a more lengthy

26

period of incarceration for this individual.

27 Cal. Penal Code § 3041(b).
28
36

1 work the inmate does in the subsequent 9 months is not

2 considered.

3

59. The inmate may file a new petition to advance no

4 sooner than three years after the last petition to advance was

5 denied. (RT 274-75.)

6

60. Although the Board has the authority to grant an

7 advanced hearing sua sponte, it has never done so, because until

8 recently, there has been no process for doing so. See RT 297.

9

61. Post-Vicks, the Board is apparently implementing a

10 procedure to implement sua sponte reviews. (RT 289-95). The

11 board is currently conducting sua sponte reviews, although as of

12 the date of Shaffer’s testimony, none had ever been granted.

13 (RT 289-95, 297-98.)

14

B. Advance Hearing Examples.

15

The parties have directed the court’s attention to several

16 examples of the petition to advance process. Some of the

17 examples point to cases where advanced hearings were granted or

18 denied, and appear to show that the advance hearing process can

19 afford prisoners an opportunity to avoid the ex post facto

20 problems associated with Proposition 9.32

21

Other examples show the Petition to Advance (“PTA”) process

22 identifying prisoners whose PTAs apparently ought to be denied.

23 32 See, e.g., R. Evans (petition to advance granted, denied
24 parole), UF ¶ 8; L. Gooseberry (petition to advance granted, and parole granted after some voluntary deferrals), UF ¶ 9;
25 J. Martinez (petition to advance granted, parole granted), UF 26 ¶ 10; R. Singh (petition to advance granted after prisoner
stipulated to 3-year deferral, parole denied), UF ¶ 11; 27 D. Vanlandingham (petition to advance granted, parole granted,
Governor reversed, parole again granted), UF ¶ 12. 28
37

1 For example, T. Faatiliga’s advance hearing petition made it past

2 the preliminary review stage. See Exh. 80, Vol. 2, at BPH-22042

3 (full review ordered on April 5, 2011). At the full review

4 stage, the petition was denied, for the following reasons:

5

Although the inmate has remained disciplinary

free, earned 6 laudatory chronos, and

6

provided a letter regarding insight and

remorse, he has only participated in 2

7

additional self help programs since his last

review. He attended a one day program on

8

victim recognition, reflection and healing on

11-10-10 and has continued his participation

9

in the YAPP program. The transcripts

indicate the panel would like him to

10

participate in an anger management program as

well and to continue self help that would

11

further improve his level of insight.

12 Id. This advance petition denial appears to squarely address the

13 issue presented, that is, whether the inmate should get an

14 advance hearing. The decision-maker denied the petition because

15 the prisoner had not done what the last panel indicated he should

16 do before he could be ready for release, namely, “participate in 17 an anger management program.”33 These examples tend to show that

18 33 Similar examples are: D. Washington (Exh. 80 at Y 25025)

19 (prisoner failed to address issues identified at the last parole

hearings); D. Plata (Exh. 80 at Y 20560) (same); T. Porter 20 (Exh. 80 at Y 33758) (prisoner failed to document participation

21

in a program apparently); S. Mendoza (Exh. 80 at Y 18391) (denial fully explained, addressed relevant factors); M. Heller (Exh. 80

22 at Y 18481) (level of insight is improving but “still deemed inadequate”); R. Holguin (Exh. 80 at Y 30144) (recent

23 disciplinary incidents); B. Werner (Exh. 80 at Y 25063)

(continued failure of “insight”); T. Cobos (Exh. 80 at Y 12776)

24 (continued failure of “insight,” superficial comments to the

contrary are not enough); A. Monteon (Exh. 80 at Y 18674) (inmate 25 was untruthful in evaluation); M. Loveless (Exh. 80 at Y 17242)

26 (petition failed to address concerns of last panel); R. Elam (Exh. 80 at Y 13861) (inmate failed to update parole plans, as

27 asked for by prior panel).

28 Plaintiffs have identified several examples where they disagree 38

1

2 substantively with the decision-maker, even though they do not

identify any structural problem with the decision. See, e.g., E. 3 Sanders (Exh. 48 (binder) at BPH-3499) (plaintiffs assert that

4

the decision-maker “discounts” prior panel’s comments that the prisoner is close to suitability); F. Salas (Exh. 47 (binder) at

5 BPH-1491) (plaintiffs say that the decision-maker denied PTA even though prisoner completed relevant courses and was a great

6 student); and Dawn Ayres (Exh. 80 at Y 10180) (plaintiffs

apparently feel that the inmate’s 400 pages of documentation 7 should have resulted in a grant of parole).

8 However, this court does not sit to review individual parole

9 decisions. The question here is not whether the decision-makers reached the correct decision or not. The question is whether the

10 system in which they make their decisions is enough to rescue Proposition 9 from its ex post facto problems.
11

In the case of J. Barajas (Exh. 80 at Y 10820), plaintiffs 12 complain that the petition was denied because the decision-maker

13 determined that “more time” is needed. This court knows of no reason that the decision-maker cannot independently determine

14 that more time is needed, as apparently was the case here. The same applies to: T. Tuvalu (Exh. 80 at Y 24699) (“[a]nything less
15 than three years would be insufficient”); J. Stephen (Exh. 80 at
Y 15973) (“additional time is needed to evaluate [inmate’s 16 recent] gains/knowledge and understanding in this area”); S.

17

Sevior (Exh. 80 at Y 23514) (not enough time has elapsed for prisoner to work on his anger); I. Verdugo (Exh. 80 at Y 35615)

18 (“[a]lthough his programming is positive a longer period of time to participate and fully understand and use the concepts is

19 needed”); A. Cook (Exh. 80 at Y 28003) (“[w]hile his ongoing

participation in self help is commendable, the extent and length 20 of his involvement remains inadequate in light of the prior

21

panel’s comments as to lack of insight and remorse”); J. Kuhnke (Exh. 80 at Y 31650) (“[i]t is believed that Mr. [Kuhnke] needs

22 more time to continue on this positive path to lay a stronger foundation to insure that he is not a public safety risk when

23 released into the free community”); and L. Haynes (Exh. 80
at Y 17145) (“it is still an inadequate amount of time in terms 24 of ongoing participation in these self-help groups”) (the court

notes that he was also denied because his parole plans were 25 “barely adequate, and does not mention a plan for staying out of

26 the gang lifestyle”).

27 This is a different matter than if the decision-maker were to simply rely on the prior panel’s determination that more time is
28 needed.
39

1 the PTA system works at denying petitions that ought to be

2 denied. The remaining question is whether it grants petitions

3 that ought to be granted.

4

Several examples show that even when the Board decides a

5 case under an apparently reasonable interpretation of

6 Proposition 9 and the implementing regulations, the advance

7 hearing process can be rendered meaningless or illusory. The

8 most profound failure of this process is in the Board’s apparent

9 interpretation of the statute authorizing advance petitions. The

10 statute provides that the inmate may request an advance hearing

11 by submitting a petition that sets forth “the change in

12 circumstances or new information that establishes a reasonable

13 likelihood that consideration of the public safety does not

14 require the additional period of incarceration of the inmate.”

15 Cal. Penal Code § 3041.5(d)(1). A sensible interpretation of

16 this authorization is that the “change in circumstances or new

17 information” is tied to the question of suitability for parole.

18

However, some examples identified by plaintiffs show that

19 the Board has interpreted the authorization in a way that

20 separates the “change in circumstances or new information” from

21 the question of suitability. Rather, the Board requires a

22 showing of “change in circumstances or new information” before it

23 will even consider the question of suitability for parole. This

24 is a problem first because the most fundamental change in

25 circumstances would be a move from unsuitability to suitability.

26 But as the examples show, that is apparently not a change in

27

28 40

1 circumstance that will satisfy the Board. Second, when this

2 requirement is spun off from the suitability requirement, it

3 imposes an additional, substantive burden on the prisoner’s

4 ability to obtain parole.

5

This is not a harmless procedural change. This is a change

6 that says that the prisoner must now show something that he never

7 had to show before, namely, this amorphous “change in

8 circumstances or new information.” At the time the crime was

9 committed, the sentence was incarceration until such time as the

10 Board determined that the prisoner was suitable for parole.

11 Under Proposition 9, it is incarceration indefinitely, unless the

12 Board finds clear and convincing evidence of (a) a change in

13 circumstances or new information, and separately,

14 (b) suitability.

15

(1) M. Brodheim: Change in Circumstances or New

Evidence. 16

17

Plaintiffs have directed the court’s attention to the

18 case of M. Brodheim as an example of the advance hearing process 19 in action.34 At a parole hearing on June 4, 2009, the Board

20 denied parole for Brodheim, and deferred his next hearing for the

21 minimum 3-year period allowed under Proposition 9. See

22 Exhibit 80, Vol. 2 at BPH-21458. On November 1, 2010, this court

23 granted Brodheim’s habeas corpus petition on the ground that the

24 record did not contain “some evidence” of Brodheim’s current or

25 34 There appear to be over 40,000 pages of advance hearing 26 documents in Plaintiffs’ Exhibit 80 (submitted on two CD’s). It
is not practical for the court to review them all, so the court 27 considers only the documents specifically brought to its
attention by the parties. 28
41

1 future dangerousness. Id. at BPH 21468. This court ordered

2 Brodheim released within 45 days unless the Board conducted a new

3 suitability hearing in accordance with Due Process and the

4 court’s order. Id. The board scheduled the new hearing for

5 December 1, 2010. At that hearing, the Board found that Brodheim

6 was suitable for parole. Id. at BPH 21567. However, on March

7 15, 2011, the Ninth Circuit reversed this court’s order, citing

8 the intervening authority of Swarthout v. Cooke, 562 U.S. ___,

9 131 S. Ct. 859 (2011) (per curiam). Id. at BPH-21459-60. Even

10 though the Board had already found Brodheim suitable for parole,

11 it immediately (March 18, 2011) vacated its decision, solely

12 because the earlier-than-planned – but already conducted –

13 December 2010 hearing was no longer legally required. Id. at BPH

14 21458. Id. The board re-instated the 3-year deferral of the

15 original hearing. Id. The board did not state or otherwise

16 indicate that it had substantively changed its view, or had

17 decided that Brodheim was no longer suitable for parole. Rather,

18 the decision was vacated solely because it was held at an earlier

19 date than was found to be legally required.

20

On April 20, 2011, Brodheim filed a petition to advance his

21 hearing. Id. at BPH 21462. Brodheim relied, among other things,

22 upon the transcript from the December 10, 2011 hearing at which

23 the Board had already found that he was suitable for parole. Id.

24 On May 11, 2011, the Board “Summarily Denied” Brodheim’s

25 petition, on the boilerplate grounds that there was “[n]o

26 evidence of new information or a change in circumstances

27 warranting further review.” Id. at BPH 21463.

28

From the Brodheim example, the court infers that the

42

1 Advanced Hearing process requires the inmate to make a showing

2 beyond simple “suitability” for parole. Rather, the inmate must,

3 in addition, show “new information or a change in circumstances”

4 from the last parole denial.

5

The inference is supported by the Board’s training manual

6 and instructions to decision-makers. See Exhibit 40 (ECF

7 No. 341-8). The manual makes clear that in order to pass

8 “preliminary review,” the prisoner must make the assertion that

9 there are “changed circumstances” or “new information.” Id., at

10 BPH-36. Only once this assertion has been made does the petition

11 survive summary denial, and the Board go on to determine whether

12 those changed circumstances or new information establish whether

13 additional incarceration is required. See id.

14

Examples of the “change in circumstances” or “new

15 information” that would enable a prisoner to avoid summary denial

16 are having updated or stable parole plans, job offers, vocational

17 or educational certificates, completion of self help and/or drug

18 or other treatment programs, or changed outcome of disciplinary

19 actions. See Exhibit 42 (ECF No. 341-10) at BPH-33. Although

20 this list is stated to be not exclusive, it does appear to

21 consist of things in a different category than, for example, the

22 mere passage of an additional year of incarceration.35

23 35 As another example, J. Kyne was denied parole on June 18, 2009.
24 Exh. 45 (binder). On August 9, 2010, he filed a PTA. Submitted with the PTA was a large volume of documentation that, even under
25 the most skeptical and jaundiced eye, clearly presents new 26 information and changed circumstances that addressed his
suitability for parole (although of course, they do not compel a 27 conclusion one way or another). His PTA was summarily denied, on
the grounds that it failed to present new information or changed 28 circumstances. There is no other explanation for the summary
43

1

(2) T. Nguyen: The Next Panel Should Decide.

2

In another set of examples, the decision-maker made no

3 finding on whether the prisoner had shown a reasonable likelihood

4 that further incarceration was not needed, and therefore the next

5 parole hearing should be advanced, even though that was the only 6 question he had to decide.36 Rather, they determined that this

7 was a question for the next parole review panel. Yet, the

8 decision-maker denied the prisoner the opportunity to get to the

9 next review panel until the original deferral period had elapsed.

10 These examples tend to show that some PTA decision-makers viewed

11 denial.

12 Similar results are: J. Ferioli (Exh. 80 at Exh Y 29405 (at full
13 review, the sole reason for denying the PTA was that, while the prisoner was doing well, “there is insufficient reason/change of
14 circumstances to warrant advancing the date of the suitability hearing, as such”); C. Chruniak (Exh. 80 at Y 27915) (at full
15 review, decision-maker denies PTA because although the prisoner 16 is doing well, he demonstrated “neither new information nor
changed circumstances”).
17

18 36 In denying the petition, the decision-maker checks the box next

to the following paragraph:

19

Denied, after conducting a review of the case

20

factors and considering the new information

21

of change in circumstances, the prisoner did not establish a reasonable likelihood that

22

consideration of the public and victim’s

safety does not require the additional

23

incarceration.

24 See, e.g. Exh. 80 at Exh Y 25932. However, the Board appears to concede that this boilerplate language does not actually give the
25 reason the advance petition was denied. See RT 267 (“a lot of 26 decisions were going back to inmates … saying summarily denied,
and it didn’t give enough reason to explain our decision … [s] we 27 expanded that”). The actual reason is given in the “Comments”
section. 28
44

1 certain issues as categorically exempt from the PTA process, and

2 therefore could only be decided by panels after the deferral

3 period imposed by the last panel. In fact, there is no such

4 categorical exemption in the law or regulations. In such cases,

5 the PTA process was illusory.

6

T. Nguyen’s advance hearing petition, for example, made it

7 past the preliminary review stage. See Exh. 80 at Exh Y 19163

8 (full review ordered on February 21, 2012). At the full review

9 stage, the petition was denied. Id. (April 25, 2012). The

10 reason for the denial was:

11

Prior panel’s primary factor that tend to

show unsuitability … was his past and present

12

mental state and attitude towards the crime.

These concerns need to be address[ed] by the

13

panel and will be at next hearing. All other

areas continue to be positive. 14
Id. at 19164.37

15

(3) M. Killingsworth: Comprehensive Risk Assessment. 16

17

A structural barrier to a meaningful PTA process is the

18 Comprehensive Risk Assessment (“CRA”). The CRA is one factor the

19 decision-maker must consider in determining whether to grant an

20 advance hearing petition (RT 284). The CRA is completed every

21 five (5) years. Cal. Code Regs. tit. 15, § 2240(b). A

22 Subsequent Risk Assessment (“SRA”) can be made before any

23 regularly scheduled hearing. There are two problems here.

24 First, the SRA “will not include an opinion regarding the

25 37 Similar denials occurred in the other cases: K.E. Woods 26 (Exh. 80 at Y 25932) (last panel’s concerns must be evaluated “by
a future panel”); K. Blackman (Exh. 80 at Y 11362) (“the 27 [panel’s] concerns that not enough time has elapsed since his
last CDC 115 and counseling chronos has not changed”). 28
45

1 inmate’s potential for future violence because it supplements,

2 but does not replace, the Comprehensive Risk Assessment.” Id.,

3 § 2240. Second, there is no authorization for the CRA or the SRA

4 to be issued for a PTA. Under the regulations, these reports are

5 prepared in advance of a hearing, not a request for a hearing.

6 Plaintiffs therefore argue that “any prisoner who is denied

7 parole in part because of the CRA has no chance of obtaining an

8 advanced hearing.” Plaintiff’s Summation (ECF No. 517) at 25

9 n.37.

10

The undisputed examples identified by plaintiffs support

11 this assertion. For example, M. Killingsworth’s advance hearing

12 petition made it past the preliminary review stage. See Exh. 80

13 at Exh Y 17970 (full review ordered on June 28, 2011). At the

14 full review stage, the petition was denied, for the following

15 reasons:

16

I/M Killingsworth is to be commended for his

additional/continued participation in self

17

help programming and disciplinary free

behavior. The panel’s concerns with the

18

psychiatric evaluation completed by Dr. Smith

in August 2008 indicating that P presents a

19

moderate risk of violence are still valid.

20 Id. at 17971. This denial does appear to address squarely the

21 question presented, that is, whether considerations of public and

22 victim safety indicate that the prisoner should be granted an

23 advanced hearing. The decision-maker denied the petition,

24 finding that the concerns about the prisoner’s “moderate risk of

25 violence” were still valid.

26

However, the psychiatric evaluation it relies upon,

27 addressing risk assessment, is completed only every five years,

28 so there would appear to be no way for the prisoner to show that 46

1 circumstances have changed. Moreover, since this is only a

2 request for a hearing, the prisoner does not even have the right 3 to obtain a supplemental risk assessment report.38

4

(4) A. Mendoza: Translation Services Unavailable.

5

Another structural barrier to making the PTA anything other

6 than an illusory benefit is the apparent inability of the

7 decision-makers to get documents translated in time for them to

8 rule on the petition. For example, A. Mendoza’s advance hearing

9 petition made it past the preliminary review stage. See Exh. 80

10 at Exh Y 32900 (full review ordered on June 28, 2011). At the

11 full review stage, the petition was denied because some of the

12 documents the prisoner submitted were in Spanish, and the

13 decision-maker therefore could not determine whether the standard

14 had been met until the documents were translated. Id. at Y

15 32901.

16

This situation appears to contradict the testimony that

17 prisoners who need assistance receive such assistance in

18 preparing their petitions to advance. (See RT 273.) If in fact,

19 no translation services are provided at the PTA stage, then the

20 PTA process is illusory for those prisoners who communicate only

21 38 Other examples of this result are: V. Pleitez (Exh. 80 at 22 Y 20606) (at full review, decision-maker states, “[i]f new CRA is
found reschedule inmate for full review”); W. Crawford (Exh. 80 23 at Y 13359) (at full review, decision-maker states the prisoner
“submitted nothing to document any change in these important 24 areas” identified in the CRA); B. Jimenez (Exh. 80 at Y 11616)
(at full review, decision-maker states “[a] new psychiatric 25 evaluation has not been completed; hereby reflecting no change to 26 the major reasons for the unsuitability determination,” namely,
the risk assessment); J. Stevenson (Exh. 80 at Y 24063) (at full 27 review, advance hearing is denied based upon “unresolved issues”
identified by the CRA). 28
47

1 in Spanish.39

2

C. Conclusions.

3

The evidence shows that the advance hearing process

4 sometimes works and sometimes does not work. It certainly

5 appears to deny advance hearings where there is good cause to

6 deny them.

7

However, the PTA appears to deny advance hearings even to

8 those who facially appear to deserve them. The evidence shows

9 that the Board interprets Proposition 9 to impose a substantive

10 new “changed circumstances or “new information” requirement on

11 prisoners, separate and apart from the requirement that they show

12 suitability. The PTA decision-makers rely on CRA’s to determine

13 whether to even grant an advance hearing, even though no new CRA

14 can be done earlier than five years from the last one, and no SRA

15 is available for a hearing request, like the PTA. The board

16 apparently fails to provide translation services for the PTA

17 process. Finally, the PTA decision-makers from time to time,

18 simply rely on the last panel’s assessments about whether the

19 prisoner is ready for parole, and deny advance hearings because

20 they think another panel should decide the question.

21

Thus, these PTA process’s failings appear to be built in to

22 the PTA system, rather than simply resulting from occasional

23 39 Plaintiffs also complain that inmates are denied parole because
24 of “classification scores.” ECF No. 517 at 28-29. However, this appears to have no bearing on the value of the PTA process.
25 Classification scores apparently arise from the inmate’s behavior 26 in prison. If a prisoner is denied parole because he has spent
the first 20 years in prison conducting gang activities, and is 27 classified pursuant to those activities, that is a matter
unrelated to the validity of the PTA process. 28
48

1 errors. The PTA process is structured such that it fails, in

2 many cases, to afford inmates a fair opportunity to obtain an

3 advance hearing. All told, the PTA process is not sufficient to

4 protect inmates from the ex post facto problems inherent in

5 Proposition 9.

6

III. PROPOSITION 89

7

A. Findings of Facts.

8

62. On November 4, 1988, California voters approved

9 Proposition 89, which granted the Governor the ability to reverse

10 the decisions of the parole board regarding prisoners convicted

11 of murder. 1988 Cal. Legis. Serv. Prop. 89 (West).

12

63. Proposition 89 is neutral on its face, allowing the

13 Governor to reverse parole grants and denials alike. Id.

14

64. However, its intent was stated to be to give the

15 Governor “the power to block the parole of convicted murderers.”

16 Exh. 72 (ECF No. 428-9) (Proposition 89 Ballot Pamphlet (Argument 17 in Favor of Proposition 89)) at 46 (admitted per PTO). 40

18 Intending to “correct a weakness in the state’s parole system,”

19 Proposition 89 would, according to its proponents, “provide an

20 extra measure of safety to law-abiding citizens by giving the

21
22 40 In California, ‘[b]allot summaries … in the Voter Information Guide” are recognized sources for determining the voters’
23 intent.’” Perry v. Brown, 671 F.3d 1052, 1090 n.25 (9th Cir.), vacated on standing grounds sub nom., Hollingsworth v. Perry, 570
24 U.S. ___, 133 S. Ct. 2652 (2013); Hodges v. Superior Court, 21 Cal. 4th 109, 114 & 115-18 (1999) (“the voters should get what
25 they enacted, not more and not less. In this matter, therefore, 26 we are obliged to interrogate the electorate’s purpose, as
indicated in the ballot arguments and elsewhere”).
27

28 49

1 Governor the authority to block the parole of criminals who still

2 pose a significant threat to society.” Exh. 72 at 47 (Rebuttal

3 to Argument Against Proposition 89).

4

65. In 2007, Governor Schwarzenegger reviewed 172

5 decisions by the Board granting parole; the Governor reversed 115

6 (66.9%) of those decisions, he referred 18 (10.5%) to the Board

7 to review the cases en banc, he modified 2 decisions (1.1%), and

8 he declined to review 37 decisions (21.5%). In 2008, Governor

9 Schwarzenegger reviewed 170 decisions by the Board granting

10 parole; the Governor reversed 81 (47.6%) of those decisions, he

11 referred 33 (19.4%) to the Board to review the cases en banc, he

12 affirmed 1 decision (0.6%), and he declined to review 55

13 decisions (32.4%). In 2009, the former Governor reviewed 454

14 decisions by the Board granting parole, the Governor reversed 285

15 (62.8%) of those decisions, he referred 49 (10.8%) to the Board

16 to review the cases en banc, he modified 2 decisions (0.4%), and

17 he declined to review 118 decisions (26%). In 2010, the former

18 Governor reviewed 503 decisions by the Board granting parole, the

19 Governor reversed 290 (57.7%) of those decisions, he referred 58

20 (11.5%) to the Board to review the cases en banc, he modified 3

21 decisions (0.6%), and he declined to review 152 decisions

22 (30.2%). UF ¶ 17.

23

66. Between January 2007 and December 2010, the

24 Governor referred 158 cases in which the Board had granted parole

25 to the prisoner back to the Board for en banc consideration;

26 following the referral for en banc consideration, 153 (97%) of

27 the cases resulted in the prisoners' release, either because the

28 en banc Board affirmed the grant of parole or the en banc Board 50

1 sent the matter to rescission but the panel voted not to rescind.

2 UF ¶ 18.

3

67. During the review process, the chief counsel (or

4 designee) prepares a written report ("Executive Case Summary" or

5 "ECS") on each case in which parole has been granted, which

6 includes: (1) an overview of the prisoner's central prison files

7 as well as the evidence and the findings from the hearing that

8 resulted in a parole grant; (2) information about the prisoner's

9 term as set by the panel that granted parole; and (3) the

10 calculated release date for the prisoner based on that term. UF

11 ¶ 3.

12

68. The evidence presented at trial shows that

13 Proposition 89 was carried out consistent with its intent.

14 Plaintiffs’ Exhibit 67 (admitted over objection at RT 164), is a

15 summary listing of all grants of parole during the years 1999 to

16 2011, to life prisoners. RT 164-68. “Release now” means that by

17 the time the parole grant came through, the inmate had already

18 served his life term, and could be paroled immediately, that is,

19 after finalization (120 days) and gubernatorial review (30 days).

20 Id.

21

69. Exhibit 68 (admitted over objection at RT 170), is

22 a summary of Exhibit 67, without the names and individual

23 information. Exhibit 69 (admitted at RT 205), is a summary of

24 the governor’s modifications of life parole grants. Exhibit 77

25 (admitted at RT 175), is a summary of every parole decision that

26 the Governor reviewed.

27

70. Executive Case Summaries are prepared when the

28 parole board grants parole to a life prisoner. RT 206 (Knox 51

1 testimony). Exhibit 71 (admitted over objection at RT 207), is

2 an example of such a summary.

3

71. In 1991, the Governor requested that all parole

4 grants involving murder convictions be forwarded to the

5 Governor’s office for review. Exh. 75 (admitted at RT 176).

6 There is no evidence that the governor requested the review of

7 any parole denials, nor that there was any process to get such

8 decisions to the governor for review.

9

72. Of the parole grant reversals, most were of

10 prisoners who were already beyond their “life terms,” so that but

11 for Proposition 89 and the Governor’s reversal, they would have 12 been released already. See Exh. 67.41

13

73. The Executive Reports on Parole Review Decisions

14 reflect that, for the 21-year period from 1991 through 2011, the

15 Governor reported reviewing only three decisions denying parole,

16 affirming all three denials. UF ¶ 23. See Exh. A at 383 (D.

17 Sanders, Nov. 2002, Gov. Davis), 517 (P. Agrio, Apr. 2003, Gov.

18 Davis), 893 (M. Lindley, Dec. 2003, Gov. Schwarzenegger).

19

74. The Governor fulfills the reporting mandate of

20 Proposition 89 by annually filing the "Executive Report on Parole

21 Review Decisions for the State of California." UF ¶ 24.

22

75. The Executive Reports show that in the twenty-year

23 period from 1991 through 2010, the Governor reversed more than 70

24 percent of the grants of parole made to prisoners with murder

25
26 41 Plaintiffs say 90% were beyond their release dates (ECF No. 517 at 42), a percentage defendant does not dispute. The court has
27 not done the count and calculation, but the raw numbers are available in Exhibit 67.
28
52

1 convictions. UF ¶ 25.

2

B. Conclusions

3

The facts are essentially undisputed. The court reviews,

4 once again, the law of ex post facto, but in light of this

5 evidence. The inquiry for the court is whether Proposition 89

6 has created a “significant risk” of longer incarceration for life

7 prisoners whose crimes were committed before the law’s passage.

8 I find that it does.

9

1. Is plaintiffs’ challenge foreclosed by Biggs?

10

Defendants assert that plaintiffs’ ex post facto challenge

11 to Proposition 89 fails as a matter of law. ECF No. 516 at 18.

12 They argue that Supreme Court and Ninth Circuit precedent

13 forecloses plaintiffs’ challenge. This court has already

14 rejected defendants’ argument to the degree it is based upon

15 Collins v. Youngblood, 497 U.S. 37 (1990), Mallett v. North

16 Carolina, 181 U.S. 589 (1901), Dobbert v. Florida, 432 U.S. 282

17 (1977), Garner v. Jones, 529 U.S. 244 (2000), and Johnson v.

18 Gomez, 92 F.3d 964 (9th Cir. 1996), cert. denied, 520 U.S. 1242

19 (1997). See Gilman v. Brown, 2013 WL 1904424 at *11-*15 (E.D.

20 Cal. 2013) (Karlton, J.). Reviewing those cases in light of the

21 evidence presented at trial, the court sees no basis for changing

22 its views.

23

This court concluded that under Johnson v. Gomez, no facial

24 challenge to Proposition 89 can succeed in light of the cited

25 cases, as the new law “simply removes final parole decision-

26 making authority from the BPT and places it in the hands of the

27 governor.” Johnson v. Gomez, 92 F.3d at 967. The facial

28 challenge was only one route plaintiffs had available to 53

1 challenge Proposition 89. The Ninth Circuit has made clear that

2 plaintiffs could nevertheless succeed on the merits of their

3 challenge if they:

4

can “demonstrate, by evidence drawn from

[Proposition 9’s] practical implementation …,

5

that its retroactive application will result

in a longer period of incarceration than

6

under the [prior law].”

7 Gilman, 638 F.3d at 1106 (quoting Garner, 529 U.S. at 255).42

8

Defendants argue that the possibility of an “as-applied”

9 challenge, expressly recognized by the Ninth Circuit in Gilman,

10 has now been foreclosed, as matter of law, by Biggs v. Secretary

11 of the California Dept. of Corrections and Rehabilitation, 717

12 F.3d 678 (9th Cir. 2013), a habeas case decided under the

13 Antiterrorism and Effective Death Penalty Act (“AEDPA”), 28

14 U.S.C. § 2254(d). Defendants’ argument appears wrong on several

15 levels.

16

First, the argument simply assumes that Biggs overruled

17 Gilman. In fact, panels of the Ninth Circuit do not overrule

18 each other, at least not in the absence of intervening Supreme

19 Court, en banc or statutory authority. Montana v. Johnson, 738

20 F.2d 1074, 1077 (9th Cir. 1984). This court knows of no such

21 intervening authority. Second, Biggs does not even purport to

22 overrule Gilman. Indeed, its only reference to Gilman is to

23 reiterate that:

24

in Gilman v. Schwarzenegger, we said that the

plaintiffs could succeed on their Ex Post 25

26 42 See Gilman, 2013 WL 1904424 at *15-15 (plaintiffs are still entitled to go to trial so that they could make an “as-applied”
27 challenge to the law, “based upon the ‘actual effect’ of Proposition 89 on this class of plaintiffs”) (citing Garner).
28

54

1

Facto Clause claim through an evidentiary

demonstration that retroactive application of

2

the change in law in que stion would result in

increased incarceration time, citing Garner.

3

638 F.3d 1101, 1106 (9th Cir. 2011).

4 Biggs, 717 F.3d at 692. Third, Biggs distinguishes Gilman on the

5 very point that defendants say is of “no moment,” namely, that

6 Biggs is an AEDPA case, while Gilman is a Section 1983 case. Id.

7 (“But Gilman was a § 1983 case, id. at 1105, and thus contained

8 no holding about clearly established federal law”). Because

9 Biggs was an AEDPA case, the question presented was not whether

10 plaintiff could make an “as-applied” challenge to Proposition 89.

11 The question was whether the California Supreme Court had failed

12 to apply “clearly established federal law” by not subjecting

13 Proposition 89 to an as-applied analysis. Biggs found that no

14 such analysis was required by clearly established Supreme Court

15 law:

16

The Supreme Court did not clearly establish

in Garner that an as-applied analysis of the

17

significance of the risk of increased

punishment is required with regard to the

18

retroactive application of a change in law

like California's gubernatorial review of

19

parole board decisions. The California

Supreme Court's decision in Rosenkrantz was

20

thus not an unreasonable application of

clearly established federal law, and neither

21

was the Superior Court's decision in Biggs'

case that relied on it.

22

23 Biggs, 717 F.3d at 693. That is not at all the same as saying

24 that such an analysis is now foreclosed in a Section 1983 case.

25

2. Proposition 89 violates the Ex Post Facto Clause.

26

Turning to the evidence presented at trial, it is clear that

27 Proposition 89, in actual practice, is not the “neutral” transfer

28 of final decision-making authority from one decision-maker to 55

1 another. In practice the governors have used it to tip the

2 scales against parole. Every governor since passage of

3 Proposition 89 has done this, and there is no evidence that this

4 practice has stopped. Thus, while the governors could use the

5 law to review parole decisions to ensure that they are accurate

6 and fair, they appear to have no such concern about decisions

7 that deny parole.

8

Prior to the new law, the sentence faced by class members

9 was life with the possibility of parole. The parameters for

10 determining the grant or denial of parole was fixed in the

11 statutes, and the length of the “life term” was fixed in the

12 Board’s regulations. The new law was passed in order to lengthen

13 the amount of time class members would spend in prison by

14 creating a new mechanism for withholding parole, namely, the

15 governor’s veto. True to the law’s intentions, California

16 governors have used the new law to withdraw the possibility of

17 parole from most class members. In short, the voters did not

18 simply switch the final decision-making authority from the Board

19 to the Governor. They switched it with an instruction that the

20 Governor should put his finger on the scale to correct a

21 “weakness” they perceived to exist when the Board made the final

22 decision, namely, too many murderers being paroled, too soon.

23 The governors have carried out the people’s will by putting their

24 fingers on the scale and reversing 70% of parole grants for these

25 class members.

26

There is no evidence presented here that the plaintiffs were

27 ever entitled to a liberal application of the parole rules.

28 However, they have always been entitled to a neutral 56

1 interpretation of those rules. That is, whether the Board made

2 the final decision, or the governor, or anyone else, they are

3 required to apply the rules as directed by the statute and the

4 California Constitution. When the governors put their fingers on

5 the scale to obtain a result of longer prison sentences,

6 regardless of the inmate’s showing of suitability, they failed to

7 apply the statute in a neutral manner. Whether or not this is a

8 violation of California law is not for this court to say.

9 However, it is a plain violation of the ex post facto clause as

10 to those to inmates whose crimes were committed before

11 Proposition 89.

12

There is no claim here that California cannot instruct the

13 Governor to keep certain people in prison longer, or to place his

14 finger on the scale when deciding the question. In general,

15 states are free to experiment with parole however they see fit.

16 However they may not experiment in such a way as to increase the

17 quantum of punishment for those who committed their crimes before

18 the new punishment went into effect.

19

IV. REMEDY

20

Plaintiffs’ surviving requests are for (a) a declaration

21 that defendants have denied plaintiffs’ rights under the Ex Post

22 Facto Clause of the U.S. Constitution, and (b) injunctive relief.

23

The court accordingly DECLARES that Proposition 9, as

24 implemented by the Board, violates the ex post facto rights of

25 the class members.

26

The court further DECLARES that Proposition 89, as

27 implemented by the governors of California, violates the ex post

28 facto rights of the class members. 57

1

The court orders injunctive relief as follows:

2

1. Going forward, the Board shall apply Cal. Penal Code

3 § 3041.5, as it existed prior to Proposition 9, to all class

4 members. That is, all class members are entitled to a parole

5 hearing annually, unless the Board finds, under former

6 Section 3041.5(b) that a longer deferral period is warranted.

7

2. The Governor of California shall refrain from imposing

8 longer sentences on class members than are called for by

9 application of the same factors the Board is required to 10 consider, as provided for by Proposition 89.43

11

This order is stayed for 31 days, and goes into effect

12 immediately thereafter, unless a timely appeal is filed.

13

IT IS SO ORDERED.

14

DATED: February 27, 2014.

15

16

17

18

19

20

21

22

23 43 Defendants assert that no injunction is warranted because there
24 is no evidence that the current Governor is violating the Ex Post
Facto Clause, or that future governors will do so. The only 25 evidence before the court however, is what all governors thus far
26 have done, and there is no evidence of any change.

27 All other requests for relief are denied as moot (because based upon dismissed claims), or are beyond the power of this court to
28 grant.
58

 
 RICHARD M. GILMAN, et al., Plaintiffs, v.
J. DAVIS., et al., Defendants.
No. CIV. S-05-830 LKK/GGH.
United States District Court, E.D. California.
December 23, 2008.
ORDER
LAWRENCE K. KARLTON, Senior District Judge.
Pending before the court are plaintiff's motion to amend the complaint, motion to certify a plaintiff class, and motion for a preliminary injunction, all noticed to be heard on January 12, 2008. The court first observes that the motion for a preliminary injunction was not timely filed and served. See Local Rule 78-230(b). Moreover, court congestion requires continuance of the other two motions. Accordingly, the court orders as follows:
1. The hearings on all three of the above-stated motions are CONTINUED to January 30, 2009 at 10 AM. Oppositions or statements of non-opposition SHALL be filed not later than January 5, 2009. Replies, if any, SHALL be filed not later than January 12, 2009. 2. The referral of discovery to the magistrate judge remains in effect. All law and motion practice shall be set for hearing before the undersigned. The parties shall refer to the case in future filings as "No. Civ. 2:05-cv-00830 LKK/GGH," dropping the "P" designation at the end.
IT IS SO ORDERED.

RICHARD M. GILMAN, et al., Plaintiffs, v.
J. DAVIS., et al., Defendants.
No. CIV. S-05-830 LKK/GGH.
United States District Court, E.D. California.
December 23, 2008.
ORDER
LAWRENCE K. KARLTON, Senior District Judge.
Pending before the court are plaintiff's motion to amend the complaint, motion to certify a plaintiff class, and motion for a preliminary injunction, all noticed to be heard on January 12, 2008. The court first observes that the motion for a preliminary injunction was not timely filed and served. See Local Rule 78-230(b). Moreover, court congestion requires continuance of the other two motions. Accordingly, the court orders as follows:
1. The hearings on all three of the above-stated motions are CONTINUED to January 30, 2009 at 10 AM. Oppositions or statements of non-opposition SHALL be filed not later than January 5, 2009. Replies, if any, SHALL be filed not later than January 12, 2009. 2. The referral of discovery to the magistrate judge remains in effect. All law and motion practice shall be set for hearing before the undersigned. The parties shall refer to the case in future filings as "No. Civ. 2:05-cv-00830 LKK/GGH," dropping the "P" designation at the end.
IT IS SO ORDERED.

 
 RICHARD M. GILMAN, et al., Plaintiffs, v.
J. DAVIS., et al., Defendants.
No. CIV. S-05-830 LKK/GGH.
United States District Court, E.D. California.
August 11, 2009.
ORDER
LAWRENCE K. KARLTON, Senior District Judge.
On January 30, 2009, this court heard plaintiffs' motions for leave to amend, to certify a class, and for a preliminary injunction, as well as defendant's motion to strike. The court granted leave to amend and class certification (Orders of Feb. 25, 2009, Doc. 181, and March 4, 2009, Doc. 182), denied the motion to strike (Order of March 4, 2009, Doc. 183), and retained the motion for a preliminary injunction under submission. Defendants then filed a motion to dismiss, which was heard on May 18, 2009, and which was also taken under submission.
On May 28, 2009, the Ninth Circuit granted defendants' petition for permission to appeal this court's order granting class certification. Doc. 192, see also Ninth Circuit case no. 9-80052.
The court hereby directs the parties to submit briefing not to exceed fifteen (15) pages regarding the effect of the Ninth Circuit's grant of permission on this court's jurisdiction over this case, and regarding the effect of that decision on the motions currently under submission. Such additional briefing shall be filed within fifteen court days of the date of this order.
The court further grants the parties' stipulation of August 5, 2009, Doc. 202. Service of process of the Fourth Amended/Supplemental Complaint on behalf of the Commissioners and Deputy Commissioners in their official capacities has been completed, and responsive pleading by those defendants to the Fourth Amended/Supplemental Complaint shall be filed on or before 20 days from the Court's ruling on defendant's motion to dismiss.
IT IS SO ORDERED.

RICHARD M. GILMAN, et al., Plaintiffs, v.
J. DAVIS., et al., Defendants.
No. CIV. S-05-830 LKK/GGH.
United States District Court, E.D. California.
August 11, 2009.
ORDER
LAWRENCE K. KARLTON, Senior District Judge.
On January 30, 2009, this court heard plaintiffs' motions for leave to amend, to certify a class, and for a preliminary injunction, as well as defendant's motion to strike. The court granted leave to amend and class certification (Orders of Feb. 25, 2009, Doc. 181, and March 4, 2009, Doc. 182), denied the motion to strike (Order of March 4, 2009, Doc. 183), and retained the motion for a preliminary injunction under submission. Defendants then filed a motion to dismiss, which was heard on May 18, 2009, and which was also taken under submission.
On May 28, 2009, the Ninth Circuit granted defendants' petition for permission to appeal this court's order granting class certification. Doc. 192, see also Ninth Circuit case no. 9-80052.
The court hereby directs the parties to submit briefing not to exceed fifteen (15) pages regarding the effect of the Ninth Circuit's grant of permission on this court's jurisdiction over this case, and regarding the effect of that decision on the motions currently under submission. Such additional briefing shall be filed within fifteen court days of the date of this order.
The court further grants the parties' stipulation of August 5, 2009, Doc. 202. Service of process of the Fourth Amended/Supplemental Complaint on behalf of the Commissioners and Deputy Commissioners in their official capacities has been completed, and responsive pleading by those defendants to the Fourth Amended/Supplemental Complaint shall be filed on or before 20 days from the Court's ruling on defendant's motion to dismiss.
IT IS SO ORDERED.

 
 RICHARD M. GILMAN, et al., Plaintiffs, v.
SCHWARZENEGGER, et al., Defendants.
No. CIV. S-05-830 LKK/GGH.
United States District Court, E.D. California.
December 10, 2010.
ORDER
LAWRENCE K. KARLTOW, District Judge.
Plaintiffs in the above captioned case have filed a motion for a preliminary injunction and a motion to amend the court's order granting class certification. (ECF Nos. 284, 286). These motions are noticed for hearing on the court's December 20, 2010 law and motion calendar. Due to the complexity of the issues raised in the motions, the court CONTINUES this hearing until Wednesday, January 12, 2011 at 1:30 p.m.
IT IS SO ORDERED.

RICHARD M. GILMAN, et al., Plaintiffs, v.
SCHWARZENEGGER, et al., Defendants.
No. CIV. S-05-830 LKK/GGH.
United States District Court, E.D. California.
December 10, 2010.
ORDER
LAWRENCE K. KARLTOW, District Judge.
Plaintiffs in the above captioned case have filed a motion for a preliminary injunction and a motion to amend the court's order granting class certification. (ECF Nos. 284, 286). These motions are noticed for hearing on the court's December 20, 2010 law and motion calendar. Due to the complexity of the issues raised in the motions, the court CONTINUES this hearing until Wednesday, January 12, 2011 at 1:30 p.m.
IT IS SO ORDERED.

 
 RICHARD M. GILMAN, et al., Plaintiffs, v.
EDMUND G. BROWN, JR., et al., Defendants.

No. CIV. S-05-830 LKK/GGH.

United States District Court, E.D. California.

January 7, 2011.

ORDER

LAWRENCE K. KARLTON, District Judge.

Plaintiffs submitted a report titled "April 2010 Special Stipulation Report #3 Excerpt" in support of their motion for a preliminary injunction. See Exh. 20 filed in support of Motion for Preliminary Injunction. This report contains information concerning 444 parole cases whose parole hearing dates were modified in light of a settlement in a state court case. These cases appear to be sorted first by institution and second by CDC number. The court is unable to manipulate the data because it is in a scanned file.

For the foregoing reasons, the court instructs plaintiffs to file by noon on Monday, January 10, 2011 a document that sorts the data in the following manner:

Modification of Date for Subsequent Parole Hearing in Years (From X years to Y years)
3 to 1
3 to 2
5 to 1
5 to 2
5 to 3
5 to 4
7 to 1
7 to 2
7 to 3

Number of Inmates Receiving Modification

Number of Hearings Held for Inmates Receiving this Modification

Number of Parole Grants for Inmates Receiving this Modification

7 to 4 7 to 5 10 to 1 10 to 2 10 to 3 10 to 4 10 to 5 15 to 1 15 to 2 15 to 3 15 to 4 15 to 5
Defendants may notify the court of any errors in plaintiffs' calculations in writing by 9:00 a.m on Wednesday, January 12, 2011. Defendants are not invited to submit supplemental briefing as to the significance of this data.
IT IS SO ORDERED.

 
 Case 2:05-cv-00830-MCE-CKD Document 562 Filed 02/22/16 Page 1 of 30

FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

RICHARD M. GILMAN,

Nos. 14-15613

Plaintiff-Appellee/Cross-Appellant,

14-15680

v.
EDMUND G. BROWN, JR.; JONES MOORE, Board of Prison Terms; J. DAVIS; M. HOCHINO; BOOKER WELCH, Board of Prison Terms Commissioner; SUSAN FISHER; L. DININNI, Board of Prison Terms Deputy Commissioner; M. PEREZ; DENNIS KENNEALLY; NOREEN BLONIEN, Board of Prison Terms Deputy Commissioner; BOARD OF PAROLE HEARINGS,
Defendants-Appellants/CrossAppellees.

D.C. No. 2:05-cv-00830-
LKK-CKD
OPINION

Appeals from the United States District Court for the Eastern District of California
Lawrence K. Karlton, Senior District Judge, Presiding
Argued and Submitted June 15, 2015—San Francisco, California
Filed February 22, 2016

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GILMAN V. BROWN

Before: Susan P. Graber, Consuelo M. Callahan, and Carlos T. Bea, Circuit Judges.

Opinion by Judge Bea

SUMMARY*

Prisoner Civil Rights
The panel reversed the district court’s bench trial judgment and remanded with instructions to enter judgment for the State of California in an action brought by California inmates under 42 U.S.C. § 1983 seeking to enjoin the application of Propositions 89 and 9, through which California voters amended the State’s Constitution and Penal Code pertaining to the State’s parole system.
Proposition 89 amended the California Constitution to vest in the Governor constitutional authority to reverse, affirm, or modify the Board of Parole Hearings’ grants of parole as to inmates convicted of murder. Proposition 9 amended the California Penal Code to increase the default period of time after which a prisoner would be scheduled for a parole hearing, after the denial of parole. Plaintiffs asserted that Proposition 89 and 9 violated the Ex Post Facto Clause by creating a significant risk that their periods of incarceration will be longer than they would have been before the passage of the Propositions.

* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.

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3

Addressing the constitutionality of Proposition 89 as applied to plaintiffs, the panel held that Johnson v. Gomez, 92 F.3d 964, 965 (9th Cir. 1996), controlled the outcome. The panel determined that there was no evidence that governors had reversed the Board other than on the basis of the same factors which the parole authority is required to consider. Nor did plaintiffs offer evidence showing that they would have received parole before the enactment of Proposition 89, and that Proposition 89 changed that result. Therefore, the panel concluded that Proposition 89 remained only a transfer of decisionmaking power, which does not violate the Ex Post Facto Clause.

Addressing plaintiffs’ as-applied challenge to Proposition 9, the panel held that the district court committed legal error by basing its findings principally on speculation and inference, rather than on concrete evidence. The panel concluded that the district court erred by finding that the Penal Code’s petition to advance process, Cal. Penal Code § 3041.5(d)(1), by which inmates can request that the Board advance the date of their next parole hearing, failed to afford relief from the classwide risk of lengthened incarceration posed by Proposition 9. The panel held that the district court’s findings, viewed under the correct legal standard, were insufficient to support a conclusion that, on this record, an as-applied Ex Post Facto Clause violation had occurred.

COUNSEL
Christopher John Rench (argued) and Maria G. Chan, Deputy Attorneys General, California Department of Justice, Sacramento, California; Sara Romano, Supervising Deputy Attorney General, California Department of Justice, San

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GILMAN V. BROWN

Francisco, California, for Defendants-Appellants/CrossAppellees.

Monica Knox (argued), David Miles Porter, and Ann Catherine McClintock, Assistant Federal Public Defenders, Federal Public Defender’s Office, Sacramento, California, for Plaintiff-Appellee/Cross-Appellant.

Mark Zahner, Chief Executive Officer, California District Attorneys Association, Sacramento, California; Bonnie M. Dumanis, District Attorney, and Richard J. Sachs, Deputy District Attorney, San Diego, California, for Amicus Curiae California District Attorneys Association.

Richard Crane, San Diego, California, as and for pro se Amicus Curiae.

OPINION
BEA, Circuit Judge:
In California, voters have the power to change criminalsentencing law at the ballot box. They can amend statutes and the state constitution. In 1988 and again in 2008, the voters exercised this power through the passage of Proposition 89 and then Proposition 9. Proposition 89 amended the California Constitution to vest in the Governor constitutional authority to reverse, affirm, or modify grants of parole as to inmates convicted of murder. Such authority had previously been vested solely in the Board of Parole Hearings. Proposition 9 amended the California Penal Code to increase

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GILMAN V. BROWN

5

the default period of time after which a prisoner would be scheduled for a parole hearing, after the denial of parole.

No party to this action challenges the authority of voters to make such changes. However, California inmates who were sentenced to life terms with the possibility of parole for murders committed before the passage of the two Propositions, led by Richard Gilman, contend that applying the Propositions to them creates a significant risk that their periods of incarceration will be longer than they would have been before the passage of the Propositions. If the application of either Proposition creates a significant risk of a longer period of incarceration, the Proposition violates the Ex Post Facto Clause of the Federal Constitution. Gilman and two classes of similarly situated plaintiffs sued under 42 U.S.C. § 1983 to enjoin the application of Propositions 89 and 9 as to them.

After a bench trial, the district court found in favor of the plaintiffs. As to the class members who were convicted of crimes committed before the passage of Proposition 89, the district court enjoined the Governor from imposing a longer sentence than that required by application of the same factors the Board of Parole Hearings is required to consider. The district court further ordered the Board of Parole Hearings, after denying a class member parole, to schedule that inmate’s next parole hearing according to the deferral periods in place before the passage of Proposition 9. We reverse.

I. Facts and Procedural History

Until 1988, the California Board of Parole Hearings (“Board”) had the exclusive power to make parole decisions. In 1988, California voters passed Proposition 89, which

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GILMAN V. BROWN

amended the California Constitution to grant the Governor
the authority to affirm, modify, or reverse decisions of the Board with respect to inmates convicted of murder.1

In 2008, through another ballot initiative, which did not affect Proposition 89, California voters changed the parole scheme again, this time by statutory amendment, in Proposition 9.2 Before the passage of Proposition 9, prisoners

1 Proposition 89 added, in pertinent part, the following language to Cal. Const. art. V, § 8:
No decision of the parole authority of this state with respect to the granting, denial, revocation, or suspension of parole of a person sentenced to an indeterminate term upon conviction of murder shall become effective for a period of 30 days, during which the Governor may review the decision subject to procedures provided by statute. The Governor may only affirm, modify, or reverse the decision of the parole authority on the basis of the same factors which the parole authority is required to consider. . . .
2 Proposition 9 amended Cal. Penal Code § 3041.5(b) to read, in pertinent part:
(3) The board shall schedule the next hearing, after considering the views and interests of the victim, as follows:
(A) Fifteen years after any hearing at which parole is denied, unless the board finds by clear and convincing evidence that the criteria relevant to the setting of parole release dates . . . are such that consideration of the public and victim’s safety does not require a more lengthy period of incarceration for the prisoner than 10 additional years.

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GILMAN V. BROWN

7

sentenced to life with the possibility of parole received an annual parole-suitability hearing by default. After denying such a prisoner parole, if the Board determined that it was not reasonable to expect that the prisoner would be granted parole within a year, the Board could schedule the prisoner’s next parole hearing up to five years later for murderers and up to two years later for non-murderers. Following the passage of Proposition 9, after denying such a prisoner parole, the Board may schedule his next parole hearing fifteen, ten, seven, five, or three years later (the “deferral periods”).

(B) Ten years after any hearing at which parole is denied, unless the board finds by clear and convincing evidence that the criteria relevant to the setting of parole release dates . . . are such that consideration of the public and victim’s safety does not require a more lengthy period of incarceration for the prisoner than seven additional years.
(C) Three years, five years, or seven years after any hearing at which parole is denied, because the criteria relevant to the setting of parole release dates . . . are such that consideration of the public and victim’s safety requires a more lengthy period of incarceration for the prisoner, but does not require a more lengthy period of incarceration for the prisoner than seven additional years.
(4) The board may in its discretion, after considering the views and interests of the victim, advance a hearing set pursuant to paragraph (3) to an earlier date, when a change in circumstances or new information establishes a reasonable likelihood that consideration of the public and victim’s safety does not require the additional period of incarceration of the prisoner provided in paragraph (3).

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GILMAN V. BROWN

Notwithstanding these deferral periods, Proposition 9 allows an inmate to request that the Board advance the date of his next parole hearing. To do so, an inmate submits a petition to advance (“PTA”) setting forth “the change in circumstances or new information that establishes a reasonable likelihood that consideration of the public safety does not require the additional period of incarceration of the inmate.” Cal. Penal Code § 3041.5(d)(1). The Board has sole discretion to grant or deny a PTA; it may also advance an inmate’s next parole hearing sua sponte. Id. § 3041.5(b)(4), (d)(2). If the Board denies the inmate’s PTA, the inmate may not submit another PTA for three years. Id. § 3041.5(d)(3).

In 2005, Gilman and other California inmates convicted of murders committed before November 2, 1988, sued the State under 42 U.S.C. § 1983. Gilman alleged that Proposition 89 retroactively increased the punishments of class members, in violation of the Ex Post Facto Clause, and sought to enjoin the enforcement of Proposition 89. In 2009, Gilman amended and supplemented his complaint to allege that Proposition 9 also violated the Ex Post Facto Clause. To that end, he added a subclass composed of inmates who were convicted of an offense committed on or after November 8, 1988, the date of Proposition 89’s passage, but before November 4, 2008, the date of Proposition 9’s passage.3

Gilman moved for a preliminary injunction to bar enforcement of Proposition 9 based on the allegations that it violated the Ex Post Facto Clause. The district court ruled that Gilman was likely to succeed on the merits of his claim and granted the motion. The State filed an interlocutory appeal and, in a published opinion, we reversed, “[b]ecause

3 We use “Gilman” to refer to all plaintiffs and class members.

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GILMAN V. BROWN

9

on the current record Proposition 9 does not create a significant risk of prolonging [Gilman’s] incarceration on any of the theories [he] assert[s], [and] [Gilman] ha[s] not established that [he is] likely to succeed on the merits of [his] ex post facto claim.” Gilman v. Schwarzenegger (Gilman I), 638 F.3d 1101, 1111 (9th Cir. 2011).

At a bench trial, as to the Ex Post Facto Clause claim against Proposition 89, Gilman proffered evidence showing that between 1991 and 2010 the Governor reversed more than 70% of the Board’s decisions granting parole to prisoners with murder convictions. The district court found that most such reversals were related to prisoners “who were already beyond their ‘life terms,’ so that but for Proposition 89 and the Governor’s reversal, they would have been released already.”4

Based on this evidence, the district court found that Proposition 89 “was passed in order to lengthen the amount of time class members would spend in prison by creating a new mechanism for withholding parole, namely, the governor’s veto” and, “[t]rue to the law’s intentions, California governors have used [Proposition 89] to withdraw the possibility of parole from most class members.” The district court thus held that Proposition 89, as implemented by California Governors, is a “plain violation of the ex post facto clause as to those inmates whose crimes were

4 When the Board grants parole to a prisoner sentenced to life with the possibility of parole, it calculates a release date that depends, in part, on the crime of conviction and the presence of aggravating or mitigating factors. See Cal. Code Regs. tit. 15, §§ 2280–2292. The district court found that most parole grants reversed by the Governor were for prisoners who continued to be incarcerated beyond the release date calculated by the Board.

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GILMAN V. BROWN

committed before Proposition 89.” The district court ordered the Governor to “refrain from imposing longer sentences on class members than are called for by application of the same factors the Board is required to consider, as provided for by Proposition 89.”

As to Proposition 9, the district court made findings regarding the comparative frequency of parole hearings, and comparative rates of parole grants, before and after the passage of Proposition 9. To do this, the district court relied on the experience of inmates who had been involved in state litigation, In re Rutherford, No. SC135399A (Cal. Super. Ct., Marin Cty., filed May 26, 2004). In Rutherford, petitioner Jerry Rutherford was denied parole in 2003 and was scheduled for a hearing the next year, under the preProposition 9 statute. The Board did not provide the required hearing within the year. Rutherford filed a petition in habeas corpus, in California state court, to challenge the hearing delay. The state court certified a class of “prisoners serving indeterminate terms of life with the possibility of parole who have approached or exceeded their minimum eligible parole dates without receiving their parole hearings within the time required.” After class certification, the Board stipulated that it was not providing timely parole hearings. The Rutherford class and the State then agreed to a remedial plan to conduct the hearings. Some Rutherford class members had not received the hearings to which they were entitled under the plan when Proposition 9 became effective. Those class members moved for a preliminary injunction to enjoin the Board from applying Proposition 9 to them. The application for a preliminary injunction was settled by stipulation, under which some prisoners who had already had hearings (after Proposition 9 but before entry of the stipulation), had been denied parole, and had their deferral periods calculated under

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GILMAN V. BROWN

11

Proposition 9, were entitled to adjustments of their deferral periods to conform to the pre-Proposition 9 deferral periods. Those prisoners who had not received hearings stipulated to specific deferral periods or to hearings conducted under the pre-Proposition 9 statute.

The district court then made findings regarding the efficacy of the PTA process, as “the availability of advance hearings is relevant to whether the changes in the frequency of parole hearings create a significant risk that prisoners will receive a greater punishment.” Gilman I, 638 F.3d at 1108. The State argued that its PTA process mitigated any risk that sentences would be unconstitutionally lengthened. The district court disagreed.

The district court found that, when he reviews a PTA, a decisionmaker designated by the Board5 analyzes the petitioner’s asserted change in circumstances or new information without reference to whether a prisoner has made “a move from unsuitability to suitability” and that some prisoners who had become suitable would not be able to advance their hearings by filing a PTA. That is, the district court concluded that a PTA’s contention that a prisoner is now suitable, though he was unsuitable before, is not in itself considered a change in circumstances. The district court found that this interpretation meant that some prisoners who would have been found suitable for parole at their next suitability hearing under the pre-Proposition 9 version of Cal.

5 Review of PTAs is divided into an initial review and a final review. A PTA must pass the initial review before a Commissioner or Deputy Commissioner of the Board conducts a final review. The precise mechanics of this process changed in 2014, but that change was not a basis for the district court’s decision.

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Penal Code § 3041.5(d)(1) were not able to advance their hearing to less than the three-year deferral period, because their suitability was not deemed a changed circumstance or new information, and so an advance hearing was not granted.

The district court pointed to the example of one prisoner, M. Brodheim, who filed a federal habeas petition on dueprocess grounds after the Board had denied him parole; he claimed that the Board lacked “some evidence” that he was unsuitable for parole.6 The district court agreed and entered a conditional writ of habeas corpus, to issue unless Brodheim were given a parole hearing. The State appealed and, while the appeal was pending, held a Board hearing, at which the Board found Brodheim suitable for parole. We subsequently reversed the judgment which granted the conditional writ on the ground that the district court erred in its finding that the Board lacked “some evidence” of Brodheim’s unsuitability for parole. The Board then vacated its suitability finding and set Brodheim for a three-year deferral under Proposition 9. Brodheim filed a PTA, citing his suitability for parole as found by the Board. The Board denied his PTA on the ground that there was no evidence of the requisite changed circumstances or new information, although it had found him suitable for parole. The district court found Brodheim’s situation to be evidence that, in some cases, the Board does not “upon request, schedule advance hearings for prisoners who become suitable.” Gilman I, 638 F.3d at 1109.

The district court also found that the PTA process did not prevent a significant risk of lengthened incarceration for prisoners whose parole determinations hinged on psychiatric

6 Brodheim did not assert that the Board violated the Ex Post Facto Clause.

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13

evaluations known as the Comprehensive Risk Assessment (“CRA”) (administered every five years) and the Subsequent Risk Assessment (“SRA”) (administered before a parolesuitability hearing) because an SRA could be ordered only in conjunction with a hearing, not a PTA. Therefore, the district court reasoned, a prisoner could not show changed circumstances through his risk assessment, as one would not be conducted in connection with the PTA.

Similarly, the district court found that the PTA process would not advance hearings for some prisoners whose PTAs were written in Spanish, because the decisionmakers assigned to review the PTAs could not review documents in Spanish and “could not determine whether the standard had been met until the documents were translated.” The district court pointed to one instance in which a PTA was denied on this ground.

The district court concluded that “the PTA process is not sufficient to protect inmates from the ex post facto problems inherent in Proposition 9.” Based on its findings, the district court ordered the Board to apply the pre-Proposition 9 version of Cal. Penal Code § 3041.5 to class members. The State appealed the district court’s decision.

II. Standard of Review

We review the district court’s legal conclusions de novo, its factual findings for clear error, and the scope of the injunctions for abuse of discretion. Armstrong v. Brown, 768 F.3d 975, 979 (9th Cir. 2014).

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GILMAN V. BROWN

III. Analysis

A change in law violates the Ex Post Facto Clause of the Federal Constitution when it “inflicts a greater punishment[] than the law annexed to the crime, when committed.” Peugh v. United States, 133 S. Ct. 2072, 2078 (2013) (internal quotation marks omitted). In Gilman I, we set forth the relevant inquiry:

Plaintiffs cannot succeed on the merits of their ex post facto claim unless (1) Proposition 9, on its face, created a significant risk of increasing the punishment of California life-term inmates, or (2) Plaintiffs can “demonstrate, by evidence drawn from [Proposition 9’s] practical implementation . . . , that its retroactive application will result in a longer period of incarceration than under the [prior law].”

638 F.3d at 1106 (alterations in original) (quoting Garner v. Jones, 529 U.S. 244, 255 (2000)). We already rejected Gilman’s facial challenge to Proposition 9 in Gilman I, and now Gilman brings an as-applied Ex Post Facto Clause challenge based on “evidence drawn from Proposition 9’s practical implementation.” Id.

Although we stated that Gilman must show that the retroactive application of Proposition 9 “will result in a longer period of incarceration,” we think it is enough for Gilman to prove that Proposition 9 “created a significant risk of increasing his punishment.” Garner, 529 U.S. at 255 (emphasis added). Garner, on which we relied in Gilman I, used both forms of the test, but ultimately concluded that

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15

“respondent must show that as applied to his own sentence the law created a significant risk of increasing his punishment. This remains the issue in the case.” Id. (emphasis added).7 Moreover, any doubt we may have had on this point was dispelled by the Supreme Court’s decision in Peugh,

7 Garner presented a situation very similar to this case. In 1982, Robert Jones was sentenced to a life term for a murder he committed after he escaped from prison. 529 U.S. at 247. At the time he committed this crime, Georgia law required the State’s Board of Pardons and Paroles (“Georgia Board”) to hold parole-suitability hearings every three years after an initial denial of parole. Id. In 1985, before Jones’s initial parole hearing, the Georgia Board changed its rules to require periodic reconsideration of parole “at least every eight years.” Id. Consistent with this rule change, after the Georgia Board denied Jones parole, it set his next parole-suitability hearing for eight years later. Id. Jones filed suit under 42 U.S.C. § 1983 against members of the Georgia Board for violating the Ex Post Facto Clause. Id. at 248. The district court entered summary judgment for the defendants. Id. The Eleventh Circuit reversed, holding that the rule change “seems certain to ensure that some number of inmates will find the length of their incarceration extended in violation of the Ex Post Facto Clause of the Constitution.” Id. at 249 (internal quotation marks omitted).
The Supreme Court reversed. “The question is whether the amended Georgia Rule creates a significant risk of prolonging respondent’s incarceration. The requisite risk is not inherent in the framework of [the] amended Rule . . . , and it has not otherwise been demonstrated on the record.” Id. at 251 (citation omitted). Like Proposition 9, the amended rule allowed prisoners to request “expedited parole reviews in the event of a change in their circumstance or where the Board receives new information that would warrant a sooner review.” Id. at 254. The Court ruled that, “[w]hen the rule [increasing deferral periods] does not by its own terms show a significant risk, the respondent must demonstrate, by evidence drawn from the rule’s practical implementation by the agency charged with exercising discretion, that its retroactive application will result in a longer period of incarceration.” Id. at 255. The Court held that a prisoner “must show that as applied to his own sentence the law created a significant risk of increasing his punishment.” Id.

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which was decided after Gilman I, and reiterated that “[o]ur ex post facto cases . . . have focused on whether a change in law creates a ‘significant risk’ of a higher sentence.” 133 S. Ct. at 2088.8 That is the correct standard, which we now apply to Gilman’s challenges to Propositions 89 and 9.

A. Proposition 89

We have already addressed the constitutionality of Proposition 89 as applied to prisoners who were convicted of crimes committed before November 2, 1988. In Johnson v. Gomez, 92 F.3d 964, 965 (9th Cir. 1996), California state prisoner Robert Johnson was convicted of first-degree murder in 1977 and given an indeterminate sentence of 25 years to life. After California voters passed Proposition 89, the Board found Johnson eligible for parole. Id. Under Proposition 89, Johnson was not eligible for release until the 30-day period for gubernatorial review had passed. Id. The Governor exercised his authority under Proposition 89 and reversed the grant of parole. Id. Johnson sought state habeas and his petition was denied. Id. Johnson then filed a federal habeas petition, which the district court denied. Id. at 966.9

8 Both Garner and Peugh refer to “sufficient risk” and to “significant risk,” apparently using the terms interchangeably. See Garner, 529 U.S. at 250, 255; Peugh, 133 S. Ct. at 2083, 2088.
9 Johnson filed his petition before the Anti-Terrorism and Effective Death Penalty Act of 1996 was passed, so he could have prevailed even if the state court had not made a “decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court,” or “that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d).

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We affirmed. Although we acknowledged that “the purpose and effect of the law here is to lengthen prison terms by making it more difficult for convicted murderers with indeterminate sentences to be released on parole,” we held that this did not violate the Ex Post Facto Clause. Id. at 967. We ruled that “[t]he law . . . simply removes final parole decisionmaking authority from the [Board] and places it in the hands of the governor,” who “must use the same criteria” as the Board. Id. We also noted that Johnson had not shown that he would have received parole under the old system and, therefore, Proposition 89 presented only a speculative risk of unconstitutionally lengthening his period of incarceration. Id. at 967–68.

Johnson controls here. The district court found that the evidence presented at trial showed that Proposition 89, “in actual practice, is not [a] ‘neutral’ transfer of final decisionmaking authority from one decision-maker to another. . . . [W]hile the governors could use the law to review parole decisions to ensure that they are accurate and fair, they appear to have no such concern about decisions that deny parole.” However, as we noted in Johnson, the Governor must use the same criteria to determine suitability as does the Board. Id. If the district court’s finding that “governors have used [Proposition 89] to tip the scales against parole,” is a finding that California Governors are not obeying state law, that finding is clearly erroneous. “Absent a demonstration to the contrary, we presume [state actors] follow[] . . . statutory commands.” Garner, 529 U.S. at 256. The district court did not point to evidence that Governors had reversed the Board other than “on the basis of the same factors which the parole authority is required to consider.” Cal. Const. art. V, § 8(b). Nor did Gilman offer evidence showing that he would have received parole before the enactment of Proposition 89, and

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that Proposition 89 changed that result. Therefore, Proposition 89 remains only a transfer of decisionmaking power, which does not violate the Ex Post Facto Clause.

The district court erred in finding that Johnson does not control the outcome of Gilman’s challenge to Proposition 89. We reverse the district court’s findings and injunction as to Proposition 89, as to which Gilman is not entitled to relief.10

B. Proposition 9

We turn now to Proposition 9. The parameters for the district court’s inquiry were set out in Gilman I. In that case, we reversed the district court’s preliminary injunction against the enforcement of Proposition 9 because, although Proposition 9 “appear[ed] to ‘create[] a significant risk of prolonging [Plaintiffs’] incarceration,’” Gilman I, 638 F.3d at 1108 (second and third alterations in original) (quoting Garner, 529 U.S. at 251), the PTA process allowed an inmate to advance his parole hearing if he could demonstrate a “change in circumstances or new information that establishes a reasonable likelihood that consideration of the public safety does not require the additional period of incarceration,” id. at 1109 (quoting Cal. Penal Code § 3041.5(d)(1)).

At the outset, we note that proving a significant risk of prolonged incarceration in parole cases requires exacting evidence. The district court spent many pages of its opinion establishing, based principally on statistics derived from the Rutherford litigation, that Proposition 9 likely reduced the frequency of parole hearings for class members. That result

10 Doing so renders moot Gilman’s cross-appeal as to the scope of injunctive relief, as Gilman is not entitled to injunctive relief.

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is not surprising. However, a decrease in the frequency of parole hearings—without more—is not sufficient to prove a significant risk of lengthened incarceration. Id. at 1106. Proof of that risk is not a speculative inquiry. In California Department of Corrections v. Morales, 514 U.S. 499, 508–09 (1995), the Supreme Court rejected the argument that a rule change violates the Ex Post Facto Clause if it “might create some speculative, attenuated risk of affecting a prisoner’s actual term of confinement by making it more difficult for him to make a persuasive case for early release.” “[C]onjectural effects are insufficient under any threshold we might establish under the Ex Post Facto Clause.” Id. at 509.

Moreover, Gilman must prove that Proposition 9 creates a significant risk of lengthened incarceration “within the whole context of [California’s] parole system,” Garner, 529 U.S. at 252, including the opportunity for relief offered by the PTA process. In Gilman I, Gilman had urged four reasons why the PTA process was inadequate on its face to remove a significant risk of prolonged incarceration. 638 F.3d at 1109–10. We dealt with each one and found that none was established facially. Id. On remand, to prevail on his Ex Post Facto Clause claim, Gilman’s task was to prove, by evidence drawn from Cal. Penal Code § 3041.5(d)(1)’s practical implementation, that the rule, as applied to him and other class members, did “not sufficiently reduce the risk of increased punishment for prisoners.” Id. at 1109–11; see Garner, 529 U.S. at 255.

To accomplish this task, Gilman marshaled evidence of grants and denials of PTAs. This evidence included cases in which (1) the PTA was granted and, at the consequent advance hearing, parole was granted; (2) the PTA was granted, but parole was ultimately denied; and (3) the PTA

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was denied, resulting in no advance hearing. Based on this evidence, the district court concluded that “[t]he PTA process is structured such that it fails, in many cases, to afford inmates a fair opportunity to obtain an advance hearing,” and it “is not sufficient to protect inmates from the ex post facto problems inherent in Proposition 9.”11

To reach this conclusion, the district court first reviewed the PTA process and decided for itself that “the advance hearing process sometimes works and sometimes does not work,” because it “appears to deny advance hearings . . . to those who facially appear to deserve them.” It then found that certain structural features of the PTA process created impediments to its proper functioning, rendering the PTA process illusory for some class members. However, the district court based these findings largely on speculation and inference from anecdotal evidence, rather than evidence drawn from Cal. Penal Code § 3041.5(d)(1)’s practical implementation proving that the PTA process failed to alleviate the classwide risk of lengthened incarceration posed by Proposition 9. See Garner, 529 U.S. at 255; Morales, 511 U.S. at 508–09; Gilman I, 638 F.3d at 1106. Because the

11 The statistics and anecdotes derived from the Rutherford litigation, are irrelevant to this question, because the inmates covered by the Rutherford stipulated settlement avoided the PTA process. The district court noted that several Rutherford petitioners who received parole hearings under the pre-Proposition 9 scheme were released on parole before they would have had their next parole hearing under Proposition 9. But those same inmates might very well have been granted an advance hearing if they had submitted a PTA. We do not know if those inmates would have achieved an advance hearing upon PTAs, and neither Gilman nor the district court made that connection. Any suggestion that Proposition 9 created a significant risk of lengthened incarceration for those inmates is thus conjectural.

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21

district court applied the wrong standard, it committed legal error, and the resulting factual findings are clearly erroneous. We take each of the district court’s points in turn to demonstrate the errors in its analysis.

1. Improper Denial of PTAs

In reviewing the PTA process, the district court first satisfied itself that “the PTA system works at denying petitions that ought to be denied,” and then turned to the question “whether it grants petitions that ought to be granted.” That the district court should so see its task is curious in light of its (correct) understanding that it “does not sit to review individual parole decisions.” Notwithstanding this recognition of its limited review role, the district court went on to consider whether petitions were denied that “ought to [have been] granted.”

After reviewing certain case studies, the district court concluded: “[T]he PTA [process] appears to deny advance hearings . . . to those who facially appear to deserve them.” But, to decide who “facially” deserves the grant of a PTA, one must consider the merits of the grounds upon which the PTA is made. The question whether those grounds merit the grant of a PTA—like the question whether to grant parole—is committed to the sole “unfettered discretion” of the Board. In re Vicks, 295 P.3d 863, 882 (Cal. 2013); see Cal. Penal Code § 3041.5(d)(2); see also Swarthout v. Cooke, 562 U.S. 216, 220 (2011) (per curiam) (discussing the limits of federal review of a state’s discretionary decisions with respect to the grant or denial of parole). Indeed, as Garner teaches us, in reviewing decisions of state parole authorities for potential Ex Post Facto Clause issues, the question is not whether “discretion has been changed in its exercise” by changes in

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parole procedures, but whether discretion “will not be exercised at all.” 529 U.S. at 254.12 It is undisputed that the Board did exercise its discretion as to each of the PTAs in question, granting some and denying others. We conclude that the district court erred in using its disagreement with the Board’s decisions about which PTAs ought to have been granted or denied as a valid basis for finding an Ex Post Facto Clause violation.13

2. “Amorphous” Burden on Inmates

The district court then identified and examined various “structural problems” that could account for the Board’s denial of PTAs. The most troubling problem found by the district court was that Cal. Penal Code § 3041.5(d)(1) places a new, additional, and “amorphous” burden on prisoners seeking an advance hearing—to show a “‘change in

12 We recognize that in Garner, the Georgia Board retained discretion, after denying parole, to schedule the next parole hearing at any time, and that here, the Board must schedule its next hearing three years later, at the soonest. However, the Board retains the power to advance a hearing sua sponte so that it occurs in less than three years. Cal. Penal Code § 3041.5(b)(4). When the Board sets a hearing three years away, and does not advance that hearing, or when the Board denies a PTA, the Board necessarily exercises its discretion to deny parole by exercising its discretion, through individual Commissioners or Deputy Commissioners, to deny the PTA or advancement of the hearing. Thus, we treat the Board’s exercise of discretion during the PTA process as an exercise of discretion as to whether to grant or deny parole within the meaning of Garner.
13 As we described supra with respect to Proposition 89, the Ex Post Facto Clause is not violated just because two entities applying the same criteria arrive at different conclusions regarding parole decisions. That is all the more true here, because, unlike the Governor, the district court has no direct oversight of parole or PTA decisions.

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circumstances or new information’ . . . before [the Board] will even consider the question of suitability for parole.” The district court found that the Board has interpreted the statute to require a “change in circumstances or new information” “in a way that separates the ‘change in circumstances or new information’ from the question of suitability.” (Emphasis added.) This is an unnatural reading of Cal. Penal Code § 3041.5(d)(1), which specifically ties the “change in circumstances or new information” to that which “establishes a reasonable likelihood that consideration of the public safety does not require the additional period of incarceration of the inmate”; that is, suitability for parole.

Moreover, the evidence in the record favors this commonsense reading of the statute and runs counter to the district court’s finding. A non-exclusive list of examples included in the Board’s training materials suggests that the Board interprets Cal. Penal Code § 3041.5(d)(1) broadly. To show new information or a changed circumstance, an inmate need present only one or more of the building blocks that could result in a suitability finding, such as an updated parole plan, a job offer, completion of a substance-abuse-treatment program, or attainment of an educational certificate. The Board also requires, as does the statute, that the new information or changed circumstance “establishes a reasonable likelihood that consideration of public safety does not require an additional period of incarceration”—that is, that the new information or changed circumstance is reasonably likely to result in a finding of suitability for parole. In other words, if the Board follows its manual, it will deny an advance hearing only if it concludes that the inmate is unlikely to be found suitable for parole in light of all the

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information presented.14 Such an inmate—one who is likely unsuitable for parole—by definition is likely not to have received parole before the enactment of Proposition 9. And an inmate who was unsuitable a year ago and as to whom nothing has changed, similarly, was as unlikely to obtain parole before Proposition 9 as he is after. Cf. Morales, 514 U.S. at 512 (“For these prisoners, the amendment simply allows the Board to avoid the futility of going through the motions of reannouncing its denial of parole suitability on a yearly basis.”).

The district court concluded that the Board separated the “change in circumstances or new information” from parole suitability based on “some examples” of PTA denials, in particular, the denial of prisoner M. Brodheim’s PTA.15

14 Of course, “[a]bsent a demonstration to the contrary, we presume the Board follows its statutory commands and internal policies in fulfilling its obligations.” Garner, 529 U.S. at 256.
15 The district court mentioned three other cases. As to prisoner J. Kyne, the district court discerned that “even under the most skeptical and jaundiced eye, [Kyne] clearly presents new information and changed circumstances that addressed his suitability for parole.” Two problems emerge. First, Cal. Penal Code § 3041.5(d)(1) requires changed circumstances or new information that establishes the likelihood of suitability, not that they “address” such suitability. Second, the district court was again erroneously second-guessing the Board’s decision, see supra, arrogating to itself the “unfettered discretion” assigned to the Board by law. Vicks, 295 P.3d at 882; see also Cooke, 562 U.S. at 220.
As to prisoners J. Ferioli and C. Chruniak, the district court apparently thought that they deserved advance hearings because notations in their PTA denials suggested that they were “doing well,” even though the decisionmakers in those cases noted that they did not demonstrate changed circumstances or new information sufficient to warrant an advance hearing. If “doing well” since the last denial of parole were

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Brodheim did not procure an advance hearing through the PTA process. He obtained a hearing by successfully petitioning the district court for a writ of habeas corpus; we ultimately reversed the decision to grant the writ. While the appeal of that decision was pending, the Board found Brodheim suitable for parole but, after we reversed the improperly granted writ, Brodheim was returned to the same status as had obtained before the district court’s action. He then filed a PTA, appending the transcript from the parole hearing at which he was found suitable for parole, but his PTA was summarily denied.

It may seem an abuse of discretion to have returned Brodheim to non-parole status after a hearing had determined him suitable for parole, even though that hearing was undeserved. Indeed, Brodheim may have had a state-law remedy, as Proposition 9 allows PTA denials to be “review[ed] by a court or magistrate . . . for a manifest abuse of discretion by the board.” Cal. Penal Code § 3041.5(d)(2). However, we do not think it is possible to extrapolate from this single, peculiar example a finding as to how the Board handled PTAs from Gilman and other class members. The district court’s inference, based solely on the Brodheim example, that after Proposition 9, class members face “incarceration indefinitely, unless the Board finds clear and convincing evidence of (a) a change in circumstances or new

sufficient grounds to advance a hearing, only inmates misbehaving or not progressing would be declined advance hearings. The “change in circumstances” that would entitle murderers and other prisoners sentenced to life imprisonment to an advance hearing must be “sufficiently monumental” as to “alter their suitability for release on parole.” Morales, 514 U.S. at 512. Merely “doing well” does not rise to that level. And, again, it is for the Board, not the district court, to determine whether the requisite showing has been made to merit an advance hearing.

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information, and separately, (b) suitability,” is thus erroneous.

3. Decisions Passed to Next Panel

The district court found that there was a structural barrier to relief through the PTA process because decisionmakers denied a few PTAs without explaining whether there was a reasonable likelihood that further incarceration was not needed. According to the district court, this “tend[s] to show that the [Board] viewed certain issues as categorically exempt from the PTA process, and therefore could only be decided by panels after the deferral period imposed by the last panel.”

Here, the district court assumed the Board was required to determine whether an inmate was suitable for parole whenever he filed a PTA because “that was the only question [the decisionmaker] had to decide.” The district court did not consider whether the PTAs it referenced satisfied the statutory prerequisite: a “change in circumstances or new information” regarding suitability. Cal. Penal Code § 3041.5(d)(1). Indeed, it summarily dismissed the Board’s finding that the statutory prerequisite had not been met by labeling the language the decisionmaker checked on the form order denying the PTA as “boilerplate”:

Denied, after conducting a review of the case factors and considering the new information of change in circumstances, the prisoner did not establish a reasonable likelihood that consideration of the public and victim’s safety does not require the additional incarceration.

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That the Board may have decided to give additional reasons for its decision in other portions of its form order does not mean that the checked box’s language is inadequate to establish that the Board made a decision on suitability, there and then. It does not mean that the Board made no decision as to the PTA by engaging in a “categorical exemption,” as found by the district court in its claim that the Board had not exercised its discretion.16

In the example of a “boilerplate” denial cited by the district court, inmate T. Nguyen’s “reason for denial” was first that he had not met the “change in circumstance or new information” requirement regarding suitability, and then that, not having met the requirement, the next regularly scheduled panel could consider his parole-suitability factors. The district court’s reading of Nguyen’s PTA denial was selective and does not support the inference that requiring further findings at the next scheduled hearing is evidence that there is a “categorical exemption” structural barrier to PTA grants, whereby the Board does not exercise its discretion to deny a

16 Notably, in a different context—habeas review of state convictions and sentences—we are required to treat a summary denial of a discretionary appeal as a decision on the merits and determine whether there exist reasons that could have supported the decision. See Harrington v. Richter, 562 U.S. 86, 99 (2011) (“When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary.”). Although habeas jurisprudence has no direct application here, our review of decisions by state parole authorities, like our review of state convictions and sentences, is limited and recognizes that state actors have wide latitude in their decisionmaking.

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PTA, but simply passes the decision to the next regularly scheduled hearing.17

4. Lack of Annual Comprehensive Risk Assessments

As to some inmates whose mental condition is a factor as to their suitability for parole, a psychological report, the CRA, is prepared only once every five years by Stateemployed personnel. Since the CRA is prepared only every five years, the district court found that a PTA would not be granted where the inmate had a psychological component to be evaluated to determine his suitability. It quoted Gilman’s summation that “any prisoner who is denied parole in part because of the CRA has no chance of obtaining an advanced hearing.” This finding was in error for two reasons. First, nothing prohibits a prisoner from procuring his own CRA using private resources. Second, the State points out that a CRA is not required for a PTA; the inmate-petitioner can address whatever issues were in his previous CRA through a personal statement to the Board, self-help programming, or evidence other than a psychological report.

17 To the contrary, Nguyen’s PTA denial and the two others referenced by the district court suggest that the decisionmaker reviewed the PTAs and determined that the inmates were not suitable for parole in light of the reasons given by the Board for denying parole at the prior hearing. Cf. Morales, 514 U.S. at 507 (holding that a statutory change did not violate the Ex Post Facto Clause when it “introduced the possibility that after the initial parole hearing, the Board would not have to hold another hearing the very next year, or the year after that, if it found no reasonable probability that respondent would be deemed suitable for parole in the interim period” and was passed “merely to relieve the Board from the costly and time-consuming responsibility of scheduling parole hearings for prisoners who have no reasonable chance of being released” (internal quotation marks and brackets omitted)).

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5. Lack of Translation Services

The district court found a structural defect in the PTA process based on one inmate’s claim that, after his petition with some Spanish language documents had passed an initial review, full review was denied until the documents were translated. However, the district court noted evidence that prisoners who need translation services are given such assistance with their PTAs. Rather than making a finding that class members were denied translation services, the district court found no facts to sustain its determination that translation services are unavailable. Instead, the district court ruled: “If in fact, no translation services are provided at the PTA stage, then the PTA process is illusory for those prisoners who communicate only in Spanish.” (Emphasis added.) Quite obviously, unless a fact is found to exist, the supposition that it might exist is not a basis for decision.

6. Conclusions as to the PTA Process

The district court committed legal error by basing its findings principally on speculation and inference, rather than concrete evidence demonstrating that the PTA process failed to afford relief from the classwide risk of lengthened incarceration posed by Proposition 9. It erred by substituting its own judgment for the Board’s regarding which PTAs ought to be granted. And the district court’s findings of “structural problems” in the PTA process lack sufficient support in the record. The remaining findings, viewed under the correct legal standard, are insufficient to support a conclusion that, on this record, an as-applied Ex Post Facto Clause violation has occurred. We therefore reverse the district court’s findings and injunction as to Proposition 9.

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IV. Conclusion

For these reasons, we reverse the judgment of the district court and order the district court to enter judgment for the State of California.

REVERSED and REMANDED with instructions

 
 638 F.3d 1101 (2010)
Richard M. GILMAN, James Masoner, Richard W. Brown, Chris Fowler, Edward Stewart, Mario Marquez, Richard Lewis, and Gloria Olson, Plaintiffs-
Appellees, v.
Arnold SCHWARZENEGGER, Governor of California; Robert Doyle, Chairman of the Board of Parole Hearings; All Commissioners of the Board of Parole Hearings; All Deputy Commissioners of the Board of Parole Hearings
Who Hear Lifer Cases, Defendants-Appellants.
No. 10-15471.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted August 12, 2010. Filed December 6, 2010.
Amended January 24, 2011.
1102*1102 Terence J. Cassidy, Michael W. Pott (argued), and Thomas L. Riordan, Porter Scott, Sacramento, CA, for the defendants-appellants.
Daniel J. Broderick, Federal Defender, and David Porter and Monica Knox (argued), Assistant Federal Defenders, Sacramento, CA, for the plaintiffs-appellees.
Before: SUSAN P. GRABER, CONSUELO M. CALLAHAN, and CARLOS T. BEA, Circuit Judges.
ORDER
The opinion filed on December 6, 2010 is hereby amended. No petition for panel 1103*1103 rehearing or petition for rehearing en banc may be filed.
BEA, Circuit Judge:
OPINION
Plaintiffs are eight California life-term prisoners who represent a class of similarly situated California prisoners. They allege that Proposition 9, the "Victims' Bill of Rights Act of 2008: Marsy's Law," which modifies the availability and frequency of parole hearings, violates the Ex Post Facto Clause of the United States Constitution. The district court held that Plaintiffs were likely to succeed on the merits of their claim. We hold that the district court abused its discretion and, therefore, reverse.

The California Prison Parole Scheme
The California Board of Parole Hearings ("Board") has "the power to allow prisoners imprisoned in the state prisons . . . to go upon parole outside the prison walls and enclosures." Cal.Penal Code § 3040 (2010). California prisoners who are serving sentences of life with the possibility of parole are not eligible for parole until they have served the greater of a term of seven years or "[a] term as established pursuant to any other provision of law that establishes a minimum term or minimum period of confinement." Id. § 3046(a).
The Board is required to conduct a prisoner's first parole hearing one year prior to the prisoner's minimum eligible parole release date. Id. § 3041(a). At the hearing, a panel—two or more commissioners or deputy commissioners of the Board— must first determine whether the prisoner is "suitable" for parole. See id. § 3041(b). The panel must find a prisoner suitable for parole and set a parole date
unless it determines that the gravity of the current convicted offense or offenses, or the timing and gravity of current or past convicted offense or offenses, is such that consideration of the public safety requires a more lengthy period of incarceration for this individual, and that a parole date, therefore, cannot be fixed at this meeting.
Id. The panel's "fundamental consideration in parole decisions is public safety." In re Lawrence, 44 Cal.4th 1181, 82 Cal.Rptr.3d 169, 190 P.3d 535, 549 (2008). "[T]he core determination of `public safety' . . . involves an assessment of an inmate's current dangerousness." Id.[1] The Governor may review and affirm, modify, or reverse a panel's suitability determination. Cal. Const. art. V, § 8(b); Cal.Penal Code § 3041.2. But, the Governor's review must be based on the same factors the Board is required to consider. Cal. Const. art. V, § 8(b).
If the panel determines that the prisoner is unsuitable for parole at the time of the hearing, the panel must set the date for the prisoner's next parole hearing. Cal.Penal Code § 3041.5(a)(6). At the next hearing, a panel determines whether intervening changes have rendered the prisoner suitable for parole. Id. § 3041.5(c).
The Deferral Process Before and After Proposition 9
Before Proposition 9 was enacted, the length of the deferral was determined by California Penal Code § 3041.5(b)(2). That section provided:
The board shall hear each case annually. . ., except the board may schedule the next hearing no later than the following: 1104*1104 (A) Two years after any hearing at which parole is denied if the board finds that it is not reasonable to expect that parole would be granted at a hearing during the following year and states the bases for the finding.
(B) Up to five years after any hearing at which parole is denied if the prisoner has been convicted of murder, and the board finds that it is not reasonable to expect that parole would be granted at a hearing during the following years and states the bases for the finding in writing.

Cal.Penal Code § 3041.5(b)(2) (2008) (emphasis added). In 2007, 35% of prisoners who were denied parole received deferrals of one year, 32% received deferrals of two years, and 33% received deferrals of three years or more. In 2008, these percentages were 40, 33, and 27, respectively.[2]
Proposition 9 significantly changed the law governing deferral periods.[3] The relevant changes were codified in California Penal Code § 3041.5(b)(3) and provide:
The board shall schedule the next hearing, after considering the views and interests of the victim, as follows:
(A) Fifteen years after any hearing at which parole is denied, unless the board finds by clear and convincing evidence that the criteria relevant to the setting of parole release dates enumerated in subdivision (a) of Section 3041 are such that consideration of the public and victim's safety does not require a more lengthy period of incarceration for the prisoner than 10 additional years.
(B) Ten years after any hearing at which parole is denied, unless the board finds by clear and convincing evidence that the criteria relevant to the setting of parole release dates enumerated in subdivision (a) of Section 3041 are such that consideration of the public and victim's safety does not require a more lengthy period of incarceration for the prisoner than seven additional years.
(C) Three years, five years, or seven years after any hearing at which parole is denied, because the criteria relevant to the setting of parole release dates enumerated in subdivision (a) of Section 3041 are such that consideration of the public and victim's safety requires a more lengthy period of incarceration for the prisoner, but does not require a more lengthy period of incarceration for the prisoner than seven additional years.
Cal.Penal Code § 3041.5(b)(3) (2010) (emphasis added).
The most significant changes are as follows: the minimum deferral period is increased from one year to three years, the maximum deferral period is increased from five years to fifteen years, and the default deferral period is changed from one year to fifteen years. See id. Further, the burden to impose a deferral period other than the default period increased. Before Proposition 9 was enacted, the deferral period was one year unless the Board found it was unreasonable to expect the prisoner would become suitable for parole within one year. Cal.Penal Code § 3041.5(b)(2) (2008). After Proposition 9, the deferral period is fifteen years unless the Board finds by clear and convincing evidence that the prisoner will be suitable for parole in ten years, in which case the deferral period is ten years. Cal.Penal Code § 3041.5(b)(3)(A)-(B) (2010). If the 1105*1105 Board finds by clear and convincing evidence that the prisoner will be suitable for parole in seven years, the Board has discretion to set a three-, five-, or seven-year deferral period. Id. § 3041.5(b)(3)(B)-(C).
Proposition 9 also amended the law governing parole deferral periods by authorizing the Board to advance a hearing date. The Board may exercise its discretion to hold an advance hearing sua sponte or at the request of a prisoner. "The board may in its discretion . . . advance a hearing. . . to an earlier date, when a change in circumstances or new information establishes a reasonable likelihood that consideration of the public and victim's safety does not require the additional period of incarceration of the prisoner. . . ." Id. § 3041.5(b)(4). Also, a prisoner may request an

advance hearing by submitting a written request that "set[s] forth the change in circumstances or new information that establishes a reasonable likelihood that consideration of the public safety does not require the additional period of incarceration." Id. § 3041.5(d)(1). A prisoner is limited to one such request every three years. Id. § 3041.5(d)(3). Although the minimum deferral period is three years, there is no minimum period the Board must wait before it holds an advance hearing. See id. § 3041.5(b)(4).
Plaintiffs filed suit against the state in federal court under 42 U.S.C. § 1983. The only claim relevant to this appeal is Plaintiffs' claim that Proposition 9 violated their rights under the Ex Post Facto Clause of the United States Constitution. Plaintiffs filed a motion for a preliminary injunction to prevent the Board from enforcing Proposition 9's amended deferral periods.[4] On February 4, 2010, the district court granted Plaintiffs' motion for a preliminary injunction. On March 3, 2010, the state timely appealed. On April 7, 2010, the district court entered an order staying the preliminary injunction solely as to Plaintiff Gilman.
I
"A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest." Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24-25, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). "A preliminary injunction is an `extraordinary and drastic remedy'; it is never awarded as of right." Munaf v. Geren, 553 U.S. 674, 689-90, 128 S.Ct. 2207, 171 L.Ed.2d 1 (2008) (citations omitted).
This court reviews for an abuse of discretion a district court's decision to grant or deny a preliminary injunction. Indep. Living Ctr. of S. Cal., Inc. v. Maxwell-Jolly, 572 F.3d 644, 651 (9th Cir. 2009). A two-part test is used to determine whether the district court abused its discretion. United States v. Hinkson, 585 F.3d 1247, 1261 (9th Cir.2009) (en banc). First, this court must "determine de novo whether the [district] court identified the correct legal rule to apply to the relief requested." Id. at 1262. A district court necessarily abused its discretion if it applied the incorrect legal standard. Id. at 1261. Second, if the district court applied the correct legal standard, this court will reverse only when "the [district] court's application of the correct legal standard was (1) illogical, (2) implausible, or (3) without support in inferences that may be 1106*1106 drawn from the facts in the record." Id. at 1262 (internal quotation marks omitted).
II
"The States are prohibited from enacting an ex post facto law." Garner v. Jones, 529 U.S. 244, 249, 120 S.Ct. 1362, 146 L.Ed.2d 236 (2000) (citing U.S. Const. art. I, § 10, cl. 1).[5] "One function of the Ex Post Facto Clause is to bar enactments which, by retroactive operation, increase the punishment for a crime after its commission." Id. Although retroactive changes in laws governing parole of inmates may violate the Ex Post Facto Clause, "not every retroactive procedural change creating a risk of affecting an inmate's terms or conditions of confinement is prohibited." Id. at 250, 120 S.Ct. 1362. A retroactive procedural change violates the Ex Post Facto Clause when it "creates a significant risk of prolonging [an inmate's] incarceration." Id. at

251, 120 S.Ct. 1362 (emphasis added). A "speculative" or "attenuated" risk of prolonging incarceration is insufficient to establish a violation of the Ex Post Facto Clause. Cal. Dep't of Corr. v. Morales, 514 U.S. 499, 509, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995). Thus, Plaintiffs cannot succeed on the merits of their ex post facto claim unless (1) Proposition 9, on its face, created a significant risk of increasing the punishment of California life-term inmates, or (2) Plaintiffs can "demonstrate, by evidence drawn from [Proposition 9's] practical implementation . . ., that its retroactive application will result in a longer period of incarceration than under the [prior law]." Garner, 529 U.S. at 255, 120 S.Ct. 1362.
In Morales, the Supreme Court upheld the constitutionality of a statutory change to the laws that governed California parole hearings. 514 U.S. at 501-02, 115 S.Ct. 1597. There, the California legislature decreased the frequency of parole hearings for inmates convicted of multiple murders—from every year to up to every three years. Id. at 503, 115 S.Ct. 1597. The Court explained the amendment did not increase the statutory punishment for any particular offense, did not change the date of inmates' initial parole hearings, and did not change the standard by which the Board determined whether inmates were suitable for parole. Id. at 507, 115 S.Ct. 1597. The amendment simply "introduced the possibility that after the initial parole hearing, the Board would not have to hold another hearing the very next year, or the year after that, if it found no reasonable probability that respondent would be deemed suitable for parole in the interim period." Id. This change did not violate the Ex Post Facto Clause because it did not "produce[ ] a sufficient risk of increasing the measure of punishment attached to the covered crimes." Id. at 509, 115 S.Ct. 1597. The change "applie[d] only to a class of prisoners[, murderers of multiple victims,] for whom the likelihood of release on parole [was] quite remote," id. at 510, 115 S.Ct. 1597; the frequency of an inmate's hearings was not affected unless the Board concluded "`it [was] not reasonable to expect that parole would be granted at a hearing during the following years,'" id. at 511, 115 S.Ct. 1597 (quoting Cal.Penal Code § 3041.5(b)(2) (1982)); and the Board retained the authority to schedule annual hearings, id. Thus, the decrease in the frequency of parole hearings "create[d] only the most speculative and attenuated possibility of producing the prohibited effect of increasing the measure of punishment for covered crimes." Id. at 509, 115 S.Ct. 1597. Further, inmates who received two- or three-year deferrals were 1107*1107 not prohibited from requesting advance hearings based on changed circumstances that affected their suitability for parole. Id. at 512, 115 S.Ct. 1597.
In Garner, the Georgia Board of Pardons ("Board") changed the frequency of parole hearings from every three years to up to every eight years for inmates serving life sentences. 529 U.S. at 247, 120 S.Ct. 1362. Jones, who was serving two life sentences for murder, was denied parole at his first parole hearing. Id. The Board scheduled his next parole hearing for eight years later. Id. Jones sued the Board in federal court under 42 U.S.C. § 1983 and alleged the Board's amendment violated the Ex Post Facto Clause. Id. at 248, 120 S.Ct. 1362. The district court granted summary judgment to the Board. Id. The Eleventh Circuit reversed because the amendment "`seem[ed] certain' to result in some prisoners serving extended periods of incarceration." Id. at 255, 120 S.Ct. 1362. The Eleventh Circuit distinguished the case from Morales because the change made by the Georgia Board (1) applied to a broader class of inmates (i.e., all life-term inmates), some of whom could expect to be paroled at some point; (2) allowed the Board to delay subsequent hearings for up to eight years, instead of three years; and (3) did

not require the Board to state the bases for finding there was no reasonable probability the inmate would become suitable for parole before the next hearing. Id. at 249, 120 S.Ct. 1362.
The Supreme Court reversed and remanded. Id. at 257, 120 S.Ct. 1362. The Court rejected Jones's contention that the amendment eliminated the Board's exercise of discretion between scheduled parole hearings on the basis that the changes to the frequency of parole hearings were "qualified in two important respects." Id. at 254, 120 S.Ct. 1362. "First, the law vests the Parole Board with discretion as to how often to set an inmate's date for reconsideration, with eight years for the maximum." Id. The Board's policy provides that it will set the duration between parole hearings at more than three years only if "it is not reasonable to expect that parole would be granted during the intervening years." Id. "Second, the Board's policies permit expedited parole reviews in the event of a change in [an inmate's] circumstance or where the Board receives new information that would warrant a sooner review." Id. (internal quotation marks omitted). The Court concluded that the amendment "[did] not by its own terms show a significant risk [of increasing Jones's punishment]." Id. at 255, 120 S.Ct. 1362. Thus, Jones was required to "demonstrate, by evidence drawn from the rule's practical implementation by the [Board], that its retroactive application will result in a longer period of incarceration than under the earlier rule." Id. Because there was insufficient evidence in the record to determine whether the amendment "created a significant risk of increased punishment for [Jones]," the Court remanded the case. Id. at 257, 120 S.Ct. 1362.
Here, as in Morales and Garner, Proposition 9 did not increase the statutory punishment for any particular offense, did not change the date of inmates' initial parole hearings, and did not change the standard by which the Board determined whether inmates were suitable for parole. However, the changes to the frequency of parole hearings here are more extensive than the change in either Morales or Garner. First, Proposition 9 increased the maximum deferral period from five years to fifteen years. This change is similar to the change in Morales (i.e., tripled from one year to three years) and the change in Garner (i.e., from three years to eight years). Second, Proposition 9 increased the minimum deferral period from one year to three years. Third, Proposition 9 1108*1108 changed the default deferral period from one year to fifteen years. Fourth, Proposition 9 altered the burden to impose a deferral period other than the default period. Before Proposition 9, the deferral period was one year unless the Board found it was unreasonable to expect the prisoner would be suitable for parole in one year. After Proposition 9, the deferral period is fifteen years unless the Board finds by clear and convincing evidence that the prisoner will be suitable for parole in ten years, in which case the deferral period is ten years. If the Board finds by clear and convincing evidence that the prisoner will be suitable for parole in seven years, the Board has discretion to set the deferral period at three, five, or seven years. Neither Morales nor Garner involved a change to the minimum deferral period, the default deferral period, or the burden to impose a deferral period other than the default period.
In both Morales and Garner, even after the changes to the laws governing the frequency of parole hearings, the Board retained discretion to set subsequent parole hearings at the same frequency as it would have before the changes to the law. But here, Proposition 9 eliminated the Board's discretion to set a one-year deferral period, even if the Board were to find by clear and convincing evidence that a prisoner would be suitable for parole in one year. In the two years before Proposition 9 was implemented, approximately two-thirds of prisoners received deferral

periods of one or two years. Now, all prisoners will receive deferral periods of at least three years. Further, the Board must set a fifteen-year deferral period unless it finds by clear and convincing evidence that the prisoner will be suitable for parole in ten years or less. Thus, the changes required by Proposition 9 appear to "create[ ] a significant risk of prolonging [Plaintiffs'] incarceration." Garner, 529 U.S. at 251, 120 S.Ct. 1362.[6]
Even assuming, without deciding, that the statutory changes decreasing the frequency of scheduled hearings would create a risk of prolonged incarceration, the availability of advance hearings is relevant to whether the changes in the frequency of parole hearings create a significant risk that prisoners will receive a greater punishment. Garner, 529 U.S. at 256-57, 120 S.Ct. 1362;[7] Morales, 514 U.S. at 512, 115 S.Ct. 1597. In Morales, the 1109*1109 prisoner contended "there [was] some chance that the amendment might . . . produce an increased term of confinement for some prisoners who might experience a change of circumstances that could render them suitable for parole during the period between their hearings." 514 U.S. at 512, 115 S.Ct. 1597. The Court rejected this contention and explained that, even if it assumed such a change of circumstances, "there is no reason to conclude that the amendment will have any effect on any prisoner's actual term of confinement, for the current record provides no basis for concluding that a prisoner who experiences a drastic change of circumstances would be precluded from seeking an expedited hearing from the Board." Id. Even though such expedited hearings were not provided by statute or regulation, the Court relied on the Board's "practice" of "review[ing] for merit any communication from an inmate asking for an earlier suitability hearing." Id. As the Court explained, "[a]n expedited hearing by the Board . . . would remove any possibility of harm" to prisoners who experienced changes in circumstances between hearings. Id. at 513, 115 S.Ct. 1597 (emphasis added).
Here, advance hearings are explicitly made available by statute: "The board may in its discretion . . . advance a hearing . . . to an earlier date, when a change in circumstances or new information establishes a reasonable likelihood that consideration of the public and victim's safety does not require the additional period of incarceration of the prisoner." Cal.Penal Code § 3041.5(b)(4). The Board may exercise its discretion to hold an advance hearing sua sponte or at the request of a prisoner. A prisoner may request an advance hearing by submitting a written request that "set[s] forth the change in circumstances or new information that establishes a reasonable likelihood that consideration of the public safety does not require the additional period of incarceration." Id. § 3041.5(d)(1). The Board's decision to deny a prisoner's request for an advance hearing is subject to judicial review. Id. § 3041.5(d)(2). Here, as in Morales, an advance hearing by the Board "would remove any possibility of harm" to prisoners because they would not be required to wait a minimum of three years for a hearing. 514 U.S. at 513, 115 S.Ct. 1597.
Plaintiffs provide four reasons why the advance hearings do not sufficiently reduce the risk of increased punishment for prisoners. None of these reasons is persuasive on the current record.
Plaintiffs' first reason is that the decision to grant a prisoner's request for an advance hearing is entirely discretionary. Neither a change in circumstances nor new information requires the Board to hold an advance hearing. However, absent evidence to the contrary, this court must presume the Board will exercise its discretion in a manner consistent with the Ex Post Facto Clause. See Garner, 529 U.S. at 256, 120 S.Ct. 1362 ("Absent a demonstration to the contrary, we presume

the Board follows its statutory commands and internal policies in fulfilling its obligations."). Plaintiffs have adduced no evidence that the Board has denied a request for an advance hearing where a prisoner has shown a change in circumstances or new evidence. In fact, Plaintiffs have adduced no evidence that the Board has denied a request for an advance hearing for any reason. Thus, this court must presume that the Board will, upon request, schedule advance hearings for prisoners who become suitable for parole prior to their scheduled hearings.
Plaintiffs' second reason is that "there is no mechanism or procedure in place for the Board to initiate a review or to accept, consider or rule on a prisoner's request[for an advance hearing]." We are not persuaded. 1110*1110 Section 3041.5(d)(1) allows a prisoner to request an advance hearing, and § 3041.5(b)(4) allows the Board to advance a hearing based on a change in circumstances or new information. Further, in Morales, no statute or regulation provided for advance hearings, yet the Court relied on the fact that the Board—the same Board involved in this case—had a practice of reviewing inmates' requests for earlier parole hearings. 514 U.S. at 512, 115 S.Ct. 1597. If the Board were able to review inmates' requests for advance hearings before such hearings were explicitly authorized by statute, there is no reason to believe that the Board is no longer capable of handling such requests. Indeed, just the contrary is true now that statutory authorization has supplanted mere practice. Further, Plaintiffs have adduced no evidence that the Board has denied or failed to respond to requests for advance hearings.
Plaintiffs' third reason is that the district court concluded that "there will necessarily be a delay between any meritorious request for an advance hearing and the grant of such hearing, and Plaintiffs contend, with some evidence, that this delay will likely exceed a year." This conclusion is not supported by the evidence in the record. Plaintiffs rely in part on the fact that the Board's decision to deny parole does not become final for four months. But Plaintiffs cite no authority that requires a prisoner to wait until the Board's decision is final before he requests an advance hearing based on changed circumstances or new information. Other steps may also delay an advance hearing once a request has been made: the Board must solicit the views of the victim or next of kin before it grants a request for an advance hearing, Cal.Penal Code § 3041.5(b)(4), (d)(2); the Board must consider the merits of the request, id. § 3041.5(b)(4); and, if the Board grants the request, it must provide 90 days' notice to the victim or next of kin before it holds the hearing, id. § 3043(a)(1). But Plaintiffs fail to explain how these statutory requirements make it "virtually impossible" for a prisoner to receive an advance hearing within one year of the denial of parole—the previous default deferral period. The speculative and attenuated risk that an advance hearing will not be held within one year of a request is insufficient to establish an ex post facto violation. See Morales, 514 U.S. at 508-09, 115 S.Ct. 1597.
Plaintiffs' fourth reason is that they will be unable to establish changed circumstances or new information with respect to static factors such as the circumstances of the commitment offense or prior criminal history. Plaintiffs are correct that those static factors will not change; but a prisoner's suitability for parole may change even though static factors remain unchanged. For example, the passage of time is a change in circumstances that may affect a prisoner's suitability for parole (i.e., the prisoner's current dangerousness) even though his prior criminal history has not changed. See Lawrence, 82 Cal. Rptr.3d 169, 190 P.3d at 560 (holding that the passage of time is a factor the Board must consider when it determines whether a prisoner is currently dangerous and, thus, unsuitable for parole). Plaintiffs also contend that they will be unable to

establish changed circumstances or new information with respect to intangible factors such as the failure to accept responsibility or the lack of sufficient remorse. But, just as a prisoner must explain his acceptance of responsibility and convey his remorse at a parole hearing, a prisoner can, in a request for an advance hearing, explain that he has accepted full responsibility for his crime and convey his remorse.
There were no facts in the record from which the district court could infer that Proposition 9 created a significant risk of 1111*1111 prolonging Plaintiffs' incarceration; thus, the district court abused its discretion. See Hinkson, 585 F.3d at 1262 (holding that a trial court abuses its discretion when its application of the correct legal standard was "without support in inferences that may be drawn from the facts in the record"). Because on the current record Proposition 9 does not create a significant risk of prolonging Plaintiffs' incarceration on any of the theories Plaintiffs assert, Plaintiffs have not established that they are likely to succeed on the merits of their ex post facto claim. Therefore, we reverse the district court's order that granted Plaintiffs' motion for a preliminary injunction.
REVERSED.
[1] In California, "some evidence" of future dangerousness is required to deny parole. Hayward v. Marshall, 603 F.3d 546, 562 (9th Cir.2010) (en banc).
[2] The 2008 statistics do not include data from parole hearings conducted after December 10, when Proposition 9 was implemented.
[3] No changes were made to the basis for determining suitability or the Governor's role in the parole process.
[4] Because class certification was on appeal, the motion for preliminary injunction was evaluated and granted only as to the named Plaintiffs. The district court's order which certified the class was subsequently affirmed on appeal.
[5] The Ex Post Facto Clause applies to the states directly: "No State shall . . . pass any. . . ex post facto Law. . . ." U.S. Const. art. I, § 10, cl. 1.
[6] This conclusion, however, assumes that more frequent parole hearings produce more frequent grants of parole, rather than more frequent denials of parole. It is true that more frequent hearings give a prisoner earlier opportunities at being paroled; however, Plaintiffs produced no evidence to support a finding that more frequent parole hearings result in more frequent grants of parole. Indeed, the assumption that more frequent parole hearings produce more frequent grants of parole is belied by the situations of several of the named Plaintiffs in this case, who were subject to repeated one- and two-year deferrals. These prisoners would not have served shorter prison terms just because of more frequent parole hearings.
[7] In Garner, the Board adopted a policy that permitted inmates, "upon a showing of a change in their circumstance or where the Board receives new information, to receive expedited reconsideration for parole." 529 U.S. at 248, 120 S.Ct. 1362 (citation and internal quotation marks omitted). The Court held that the Board's internal policy statement was relevant to whether changes to the frequency of parole hearings violated the Ex Post Facto Clause. Id. at 256, 120 S.Ct. 1362. As the Court explained, "policy statements, along with the Board's actual practices, provide important instruction as to how the Board interprets its enabling statute and regulations, and therefore whether, as a matter of fact, the amendment to [the Board's rules] created a significant risk of increased punishment." Id. "Absent a demonstration to the contrary, [courts must] presume the Board follows its statutory commands and internal policies in fulfilling its obligations." Id.