GILMAN V. BROWN Declares Prop 9 (Marsy's law) and Prop 89 (Gov. veto power) Violates Ex post Facto rights!!!

**** SEE OUR NEW 2/22/16 GILMAN Update post (Blog February 2016)

Gilman vs Brown (2/28/14)  (click to read the 58 page ORDER) 
CIV. S-05-830 LKK/CKD 

As John Dannenberg told me "This is a humdinger!  It is stayed pending filing of an appeal, and probably will spend a year or two in the appeals process, but is factually very strongly supported" [ for  the LIFERS!]

In summary,  Plaintiffs assert that Propositions 9 and 89 have retrospectively increased their punishments, in violation of the Ex Post Facto Clause of the U.S. Constitution. The case is a pleasure to read. It is brilliant that the Rutherford class of inmates were used by the Plaintiffs (inmates) to show the ACTUAL increase in punishments that all those Lifers suffered because of Prop 9. A somewhat detailed description of the Rutherford litigation was useful because that subset of the class certified in In re Rutherford (Cal. Super. Ct., Marin County, No.SC135399A),  is representative of the Proposition 9 class certified in this GILMAN case

As a reminder:  In re Rutherford  (2004 civil class Action by the Prison Law Office) there was a complaint that all prisoners serving indeterminate terms of life with the possibility of parole  (LIFERS) had not received timely parole hearings within the time required by California Penal Code §§3041 and 3041.5.The Rutherford ORDER was to eliminate all the back log of Parole Hearings where some inmates were allowed to go forward with their parole hearing BEFORE the application of Prop 9. Bottom line of that class analysis [done in GILMAN] is that those pre-prop 9 inmate were release sooner "in general" then the post-prop 9 inmates.Hence the increase in the punishments as applied by the Board in the GILMAN case analysis.  

REMEDY from the Court:
Plaintiffs’ surviving requests are for (a) a declaration that defendants have denied plaintiffs’ rights under the Ex Post Facto Clause of the U.S. Constitution, and (b) injunctive relief.

The court accordingly DECLARES that Proposition 9, (aka Marsy's Law) as implemented by the Board, violates the ex post facto rights of the class members. (i.e. Lifer inmates)

The court further DECLARES that Proposition 89, as implemented by the governors of California, violates the ex post facto rights of the class members. (i.e. Lifer inmates)


This civil case in the Federal Court is on HOLD until the appeal process is completed. This could take a year, but let's keep our fingers cross for a faster resolution from the Courts so that attorneys can start citing this case and the Board will "step inline" and follow the law. If Marsy's Law  (Prop 9) is stricken down as unconstitutional then the DENIAL periods should roll back to the 1, 2, 3, 4 , 5  vs. the current 15, 10 , 7, 5, 3 year denials at Parole Suitability Hearings. Furthermore, if Prop 89 (veto power of the governor to reverse Grants) are stricken done then maybe the Commissioners will be left to do their JOBS without the threat from the Governor and it will hopefully eliminate "some" the Conflicts of Interest with the Governor's Office.

 YES YES YES - i am a little excited about this case for my LIFER clients. Marsy's law "as applied" is unconstitutional....   REALLY !   LOL