In re Prather 7/29/10 Court defines BOARD's discretion in Court Ordered BPH Hearings

COURT ORDERED HEARING WILL BE MORE SCRUTINIZED specifically as to what remedies will be allowed by the Court and what "evidence" the BOARD will be allowed to review. Time will tell on how this decision actually plays out in reality. Most likely it will not have a major impact on the ultimate success of litigation.

In re Prather, 50 Cal. 4th 238
Cal Supreme Court case# S173269 and S172903

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When a court directs the Parole Board to conduct a new parole-suitability hearing, the court should not improperly limit the type of evidence the board is statutorily obliged to consider. The Supreme Court granted review to settle a split among the appellate courts as to what action a reviewing court could order the Parole Board to take when it grants a new parole-suitability hearing. The court held is improper for the reviewing court to order the board to consider only a limited category of evidence in making its finding. Specifically, the reviewing court should not order the board to consider only new and different evidence that has emerged since the suitability hearing under review. To do so violates the separation of powers doctrine. The board is the administrative agency within the executive branch that is authorized to grant parole, with veto power vesting in the Governor. While judicial review of parole-suitability is proper so that the petitioner has due process, an order limiting the board's discretion as to what factors it can consider on remand "impermissibly impairs the board's exercise of its inherent discretion to decide parole matters."
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The Court reasoned that the Board in performing its statutory duty to evaluate current dangerousness, should be allowed to consider the entire record as it applies at the time of remand. But the Court decreed limitations. If the remanding court makes express findings of fact (e.g., not "some evidence" of danger in psych reports; or not "some evidence" of danger in parole plans), on remand, the Board cannot reconsider these factor However, if "new evidence" has materialized since the prior hearing, the Panel may consider not only that evidence, but also how it interrelates with prior evidence, in reaching its current dangerousness assessment.

Justice Moreno in a concurring and clarifying opinion wrote:
"an order expediting a remedy is not improper, particularly if a previous remand was ordered by the court. If a court is faced with slapping the Board's hands on a subsequent challenge to remanded hearing, then a more drastic intervention, such as an outright order that the Board grant Parole, may be warranted."