FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JERRY VALDIVIA; ALFRED YANCY;
HOSSIE WELCH, on their own
behalf and on behalf of the class Nos. 08-15889 and
of all persons similarly situated, 09-15836
Plaintiffs-Appellees,
v. D.C. No.
2:94-CV-00671-
ARNOLD SCHWARZENEGGER, LKK-GGH
Governor of the State of OPINION
California,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of California
Lawrence K. Karlton, District Judge, Presiding
Argued and Submitted
January 11, 2010—San Francisco, California
Filed March 25, 2010
Before: John T. Noonan, Michael Daly Hawkins and
Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge Hawkins;
Partial Concurrence and Partial Dissent by Judge Noonan
4817
4820 VALDIVIA v. SCHWARZENEGGER
COUNSEL
Vickie P. Whitney, Office of the Attorney General of the
State of California, Sacramento, California, and S. Anne
VALDIVIA v. SCHWARZENEGGER 4821
Johnson, Hanson Bridgett LLP, San Francisco, California, for
the defendant-appellant.
Loren G. Stewart and Ernest Galvan, Rosen, Bien & Galvan
LLP, San Francisco, California; Geoffrey Holtz, Bingham
McCutchen LLP, San Francisco, California, for the plaintiffs-
appellees.
Kent S. Scheidegger, Criminal Justice Legal Foundation, Sac-
ramento, California, for amici Criminal Justice Legal Founda-
tion, Crime Victims United of California, and Senator George
Runner.
Wendy Musell, Stewart & Musell, San Francisco, California,
for amici The American Civil Liberties Union of Northern
California, Legal Services for Prisoners and Children, The
Justice Policy Institute, the National Council on Crime and
Delinquency, The Sentencing Project, Hadar Aviram, W.
David Ball, Sharon Dolovich, Malcolm M. Feeley, Michael
Pinard, Jonathan Simon and Jeremy Travis.
OPINION
HAWKINS, Circuit Judge:
These consolidated appeals stem from the November 2003
Valdivia Permanent Injunction (“the Injunction”)—based on
a stipulation between Jerry Valdivia (“Valdivia”) and a class
of similarly situated California parolees1 (“Plaintiffs”), and
Governor Arnold Schwarzenegger and the State of California
(collectively “the State”)—prescribing procedures for parole
1
More specifically, the Plaintiff class consists of: “(1) California paro-
lees at large; (2) California parolees in custody as alleged parole violators,
and who are awaiting revocation of their state parole; and (3) California
parolees who are in custody having been found in violation of parole and
who have been thereupon sentenced to prison custody.”
4822 VALDIVIA v. SCHWARZENEGGER
revocation hearings in California. Here, the State appeals two
post-Injunction orders: (1) the March 25, 2008 order (“March
2008 order”) adopting the Injunction-related recommenda-
tions of the court-appointed Special Master regarding the use
of hearsay evidence in parole revocation hearings; and (2) the
March 26, 2009 order (“March 2009 order”) denying the
State’s motion to modify the Injunction to conform to the
voter promulgated statute, Cal. Penal Code § 3044, formerly
California Proposition 9 (“Proposition 9”).
Bound by United States v. Comito, 177 F.3d 1166 (9th Cir.
1999), we affirm the March 2008 order. Because the March
2009 order made no express determination that any aspect of
the California parole revocation procedures, as modified by
Proposition 9, violated federal constitutional rights, nor any
determination that the Injunction was necessary to remedy a
constitutional violation, we vacate and remand the March
2009 order for the district court to make that determination
and to reconcile the Injunction and Proposition 9.
Background Facts & Procedural History
In May 1994, Plaintiffs challenged the constitutionality of
parole revocation procedures under the Fourteenth Amend-
ment’s right to due process, as defined in Morrissey v.
Brewer, 408 U.S. 471, 487-90 (1972), and Gagnon v. Scar-
pelli, 411 U.S. 778, 786 (1973). The district court granted par-
tial summary judgment in favor of Plaintiffs, holding that
California’s parole revocation hearing system violated their
procedural due process rights. Valdivia v. Davis, 206 F. Supp.
2d 1068, 1078 (E.D. Cal. 2002). The parties later agreed to
the Injunction, which limited “the use of hearsay evidence . . .
by parolees’ confrontation rights in the manner set forth in . . .
Comito.”
VALDIVIA v. SCHWARZENEGGER 4823
The March 2008 order
In response to the parties’ attempts to clarify the Injunction
in light of United States v. Hall, 419 F.3d 980 (9th Cir. 2005),
and after additional briefing and a hearing, the Special Master
recommended: (1) the State should be found in violation of
the Injunction; (2) all hearsay is subject to Comito balancing
—weighing “the releasee’s interest in his constitutionally
guaranteed right to confrontation against the Government’s
good cause for denying it,” Comito, 177 F.3d at 1170; (3)
hearsay exceptions do not eliminate having to engage in full
Comito balancing; and (4) the State did not demonstrate com-
pliance with paragraph 24 of the Injunction.2 In its March
2008 order, the district court fully adopted the Special Mas-
ter’s conclusions and recommendations. The State subse-
quently filed this timely appeal.
The March 2009 order
Following passage of Proposition 9, Plaintiffs moved the
district court to enforce the Injunction and bar implementation
of Proposition 9 due to its conflict with the Injunction. The
State countered with a motion to modify the Injunction to
conform to Proposition 9.
After oral argument, the district court issued its March
2009 order, granting, in part, Plaintiffs’ motion to enforce the
Injunction, and denying the State’s motion to modify it. The
district court found that while several provisions of Proposi-
tion 9 conflict with the Injunction, application of the Suprem-
acy Clause meant the Injunction prevails over state law, to the
extent of any conflict. Modification was also not warranted,
2
Paragraph 24 of the Injunction states: “The use of hearsay evidence
shall be limited by the parolees’ confrontation rights in the manner set
forth under controlling law as currently stated in United States v. Comito,
177 F.3d 1166 (9th Cir. 1999). The Policies and Procedures shall include
guidelines and standards derived from such law.”
4824 VALDIVIA v. SCHWARZENEGGER
according to the district court, because Proposition 9 did not
constitute a change in applicable law or facts. The court did
not reach whether Proposition 9 violates the U.S. Constitu-
tion. The State then filed this timely appeal of the March 2009
order, and the two appeals were consolidated.
JURISDICTION
We have jurisdiction over the appeal of both orders pursu-
ant to 28 U.S.C. § 1292(a)(1).
Because the March 2008 order modifies an existing injunc-
tion, it is immediately appealable under 28 U.S.C.
§ 1292(a)(1). See Gon v. First State Ins. Co., 871 F.2d 863,
865-66 (9th Cir. 1989). It also fulfills the three-part test of
Thompson v. Enomoto, 815 F.2d 1323, 1326-27 (9th Cir.
1987). First, it “ha[d] the practical effect of the grant or denial
of an injunction”: it added the recommendations of the Spe-
cial Master to the Injunction and mandated them, including
the qualitative assessment and training of Deputy Commis-
sioners and the Special Master’s new role as a moderator and
supervisor. See id. Second, it had “serious, perhaps irreparable
consequences,” id., such as the possible contravention of
Supreme Court precedent by imposing “numerous . . . costly
obligations” on the State, including additional required train-
ing and monitoring programs. Cf. Negrete v. Allianz Life Ins.
Co. of N. Am., 523 F.3d 1091, 1097 (9th Cir. 2008) (finding
serious consequences where “none of the other cases in which
Allianz is, or may be, involved can be settled by or in the
other courts in which they are located absent permission of
Negrete Counsel and the court in this case”). Finally, it “can
only be challenged by immediate appeal because if [the State]
awaits the final determination of this case” the damage to
hearsay determinations in parole hearings, and the cost of
monitoring the Deputy Commissioners, will have already
accrued. See id. It is unclear how long this litigation, which
began over 15 years ago, will continue before a final judg-
VALDIVIA v. SCHWARZENEGGER 4825
ment issues. “A decision by us months or years after that can-
not repair the damage.” Id.
The March 2009 order is appealable, as both parties con-
cede, under 28 U.S.C. § 1292(a)(1), as the State is appealing
an order refusing to modify an injunction.
STANDARD OF REVIEW
The district court’s March 2008 order adopted the Special
Master’s report and recommendations in its entirety. The legal
conclusions of a Special Master are reviewed de novo. See
United States v. Clifford Matley Family Trust, 354 F.3d 1154,
1163 n.10 (9th Cir. 2004). Factual findings of a Special Mas-
ter are entitled to deference and reviewed for clear error. See
Labor/Cmty. Strategy Ctr. v. Los Angeles County Metro.
Transit Auth., 263 F.3d 1041, 1049 (9th Cir. 2001).
“[M]atters of discretion,” such as evidentiary rulings and
interpretations of the Federal Rules of Civil Procedure, are
reviewed for abuse of discretion. Harman v. Apfel, 211 F.3d
1172, 1175 (9th Cir. 2000). Under this standard, a reviewing
court cannot reverse absent a definite and firm conviction that
the district court committed a clear error of judgment in the
conclusion it reached upon a weighing of relevant factors.
SEC v. Coldicutt, 258 F.3d 939, 941 (9th Cir. 2001). Motions
for relief from judgment under Fed. R. Civ. P. 60(b), such as
the one present in the appeal of the March 2009 order, are
reviewed for abuse of discretion. See United States v. Asarco
Inc., 430 F.3d 972, 978 (9th Cir. 2005).
ANALYSIS
I. The March 2008 Order
The State argues the district court erred in applying the
Comito test to parole revocation hearings via the March 2008
order. It contends any hearsay evidence falling under a tradi-
4826 VALDIVIA v. SCHWARZENEGGER
tional or long-standing exception ought not to be subject to
the Comito balancing test, based on this court’s holding in
Hall, 419 F.3d 980. This argument, however, fails. The law
of this circuit is clear: the Comito test remains central to con-
frontation rights in parole hearings. The district court did not
err in subjecting the State’s parole revocation hearings to
these requirements.
A. Nature of the confrontation rights of parolees
We begin by noting that parole revocation hearings are “not
part of a criminal prosecution and thus the full panoply of
rights due a [criminal] defendant” are not due a parolee. Mor-
rissey, 408 U.S. at 480. Nonetheless, parolees are due certain
“minimum requirements of due process,” including the right
to confront witnesses. Id. at 488-89. These rights, however,
are based in the Due Process Clause of the Fourteenth and
Fifth Amendments and not in the Confrontation Clause of the
Sixth Amendment and its articulation in the Crawford line of
cases.3 Hall, 419 F.3d at 985-86 (“We, like the two circuits
that have also addressed this question, see no basis in Craw-
ford or elsewhere to extend the Sixth Amendment right of con-
frontation to supervised release proceedings.”) (referencing
Crawford v. Washington, 541 U.S. 36 (2004)).
[1] In Comito, this court specified the test for the confron-
tation rights of parolees. “[I]n determining whether the admis-
sion of hearsay evidence violates the releasee’s right to
3
Our dissenting colleague takes issue with our use of Comito balancing
“where no federal confrontation right is infringed,” and where the
Supreme Court has found that most hearsay exceptions do not implicate
the Confrontation Clause of the Sixth Amendment. Dissenting Op. at
4839-40. But we are not faced here with applications of the Sixth Amend-
ment Confrontation Clause to parole revocation hearings, rather, the right
to confrontation as espoused by Fourteenth Amendment due process, and
its articulation in Morrissey by the Supreme Court, and in Hall and Com-
ito in our circuit. There is therefore a federal confrontation right at issue
here, one that is rooted in due process rather than the Sixth Amendment.
VALDIVIA v. SCHWARZENEGGER 4827
confrontation in a particular case, the court must weigh the
releasee’s interest in his constitutionally guaranteed right to
confrontation against the Government’s good cause for deny-
ing it.” 177 F.3d at 1170. The weight given to a parolee’s
right to confrontation is assessed by two non-exhaustive fac-
tors: “the importance of the hearsay evidence to the court’s
ultimate finding and the nature of the facts to be proven by the
evidence.” Id. at 1171. If the hearsay evidence is not impor-
tant to the finding of a violation, the error in admitting the
hearsay evidence can be considered harmless, but is still sub-
ject to the good cause analysis. Id. at 1171-72.
[2] Here, in the Injunction, the district court ordered the
State to follow Comito and limit the use of hearsay evidence
to the boundaries set by parolees’ confrontation rights. The
Special Master, and in turn the district court, did not err in the
determination that Comito balancing continues to be the test
in the Ninth Circuit, and that even if hearsay falls within a
recognized exception, it is still subject to Comito balancing.
B. United States v. Hall
In Hall, the parolee was faced with hearsay evidence from
a non-available declarant. After “[b]alancing the Comito fac-
tors,” the court found that the parolee had “little interest in
confrontation . . . because [the declarant’s out-of-court state-
ments] w[ere] insignificant to the ultimate finding[,]” and
were “outweighed by the government’s substantial showing
of good cause” for failing to produce the declarant at the hear-
ing. Hall, 419 F.3d at 989. While the hearsay exception evi-
dence lessened “the importance of [the declarant’s out-of-
court statements] to the court’s ultimate finding,” and ren-
dered harmless any error in admitting those out of court state-
ments, id. at 986 & n.5, the failure to produce the declarant
remained subject to analysis of the Government’s good cause
explanation, and to full Comito balancing.
4828 VALDIVIA v. SCHWARZENEGGER
[3] The application of a balancing test to the admission of
hearsay evidence in parole revocation hearings is not an open
question in this circuit.4 See Hall, 419 F.3d at 986; Comito,
177 F.3d at 1170-73; United States v. Walker, 117 F.3d 417,
420-21 (9th Cir. 1997); United States v. Simmons, 812 F.2d
561, 564 (9th Cir. 1987). Hall did not overrule or modify the
Comito balancing test.
C. Hearsay exceptions and Comito balancing
[4] Because the Federal Rules of Evidence do not apply to
parole revocation hearings, see Walker, 117 F.3d at 420, evi-
dence falling within enumerated hearsay exceptions is subject
to Comito balancing. While, in general, hearsay exception
evidence is admissible at trial because of assurances of reliabil-
ity,5 reliability or “trustworthiness” is included in the Comito
“right to confrontation” analysis: less reliable hearsay can
contribute to more weight placed on a parolee’s right to con-
frontation over the government’s good cause. Comito, 177
F.3d at 1171-72 (“Because the hearsay evidence was impor-
tant to the court’s finding, and because it involved the least
reliable form of hearsay, Comito’s interest in asserting his
right to confrontation is at its apogee.”). Reliability does not
result in automatic admissibility: “Simply because hearsay
evidence bears some indicia of reliability does not render it
admissible.” Hall, 419 F.3d at 988. Therefore, evidence fall-
ing under a hearsay exception does not circumvent the Comito
balancing test. It remains a part of it as an “indicia of reliabili-
ty,” and subject to good cause analysis.
4
We are aware of the Second Circuit’s contrary holding. See United
States v. Williams, 443 F.3d 35, 45 (2d Cir. 2006). However, as a three-
judge panel, and with no intervening Supreme Court or Ninth Circuit pre-
cedent, we are bound by this court’s holding in Comito.
5
See Fed. R. Evid. 803, Advisory Committee Notes (“The present rule
proceeds upon the theory that under appropriate circumstances a hearsay
statement may possess circumstantial guarantees of trustworthiness suffi-
cient to justify nonproduction of the declarant in person at the trial even
though he may be available.”).
VALDIVIA v. SCHWARZENEGGER 4829
D. Due process rights of parolees
[5] The Comito test does not elevate the due process rights
of parolees to those of criminal defendants. Criminal defen-
dants have trial rights, including a jury trial, proof beyond a
reasonable doubt, application of the applicable rules of evi-
dence, and Sixth Amendment confrontation rights. Even testi-
monial hearsay that falls under a “firmly rooted hearsay
exception” or bears “particularized guarantees of trustworthi-
ness” may not be admitted against a defendant without con-
frontation or cross-examination. Crawford, 541 U.S. at 60-68.
These protections stand in firm contrast to the conditional due
process rights of parolees, which can be justifiably denied—
and hearsay admitted—if the Government’s good cause is suf-
ficient under Comito.
[6] The dissent is concerned that the admission of hearsay
exception evidence against a criminal defendant “is a fore-
gone conclusion” while such evidence would be admissible in
a parole revocation hearing once it is subject to a showing of
“good cause.” Dissenting Op., at 4841. Hearsay evidence that
is testimonial in nature, however, regardless of any excep-
tions, is inadmissible against a criminal defendant under
Crawford. However, both testimonial and non-testimonial
hearsay are admissible against a parolee, provided the hearsay
fulfills Comito balancing. Moreover, the admission of hearsay
evidence falling within an exception against a criminal defen-
dant is not a foregone conclusion; all hearsay evidence is sub-
ject to Fed. R. Evid. 403 balancing (whether the evidence is
more prejudicial than probative). The Federal Rules of Evi-
dence, and such prejudicial/probative weighing, do not govern
parole revocation hearings, see United States v. Walker, 117
F.3d 417, 421 (9th Cir. 1997), and therefore do not protect
parolees as they do criminal defendants.
Raising an argument neither party raised in this appeal, the
dissent also contends we have failed to define hearsay. See
Dissenting Op., at 4840-41. California parole revocation pro-
4830 VALDIVIA v. SCHWARZENEGGER
ceedings, however, are governed by state law whose hearsay
definitions would apply. Contrary to the dissent’s character-
ization, we are not “mandating” applicable hearsay law, or
attempting to redefine it, see Dissenting Op., at 4840, but
merely ensuring that state procedures comport with federal
due process per the law of this circuit.
[7] The district court, therefore, did not err in subjecting
the State’s parole revocation hearings to the Comito balancing
requirements.6 Comito balancing remains the framework for
confrontation rights in parole revocation hearings, and does
not elevate the due process rights of parolees over those of
criminal defendants.
E. Corroborating hearsay with hearsay
The Special Master recommended, and the district court
adopted the ruling, that “[h]earsay cannot be used to corrobo-
rate proffered hearsay unless it, too, survives a Comito bal-
ancing test.” The district court did not err in this
determination.
[8] Neither Comito nor Hall offer a clear rule on whether
6
The dissent finds that our upholding the application of Comito balanc-
ing to these state parole hearings is a violation of principles of federalism,
as no Ninth Circuit cases have previously applied such a procedure to state
procedures, but rather only to federal supervised release or probation. See
Dissenting Op. at 4840. However, the Supreme Court’s ruling in Mor-
rissey, and this court in Comito, imposed “certain minimum due process
requirements” for parole revocation, revocation of probation, and revoca-
tion of supervised release, necessary to protect a parolee’s constitutional
right to confrontation. Comito, 177 F.3d at 1170, 1172. The district court,
in its June 2002 partial grant of summary judgment in favor of Plaintiffs,
found that California’s parole revocation hearing system violated Plain-
tiffs’ procedural due process rights. Valdivia, 206 F. Supp. 2d at 1078.
This order was not appealed. There is therefore a demonstrated constitu-
tional violation present in the California parole revocation hearing system,
and principles of federalism do not permit a state to violate what this court
has already deemed to be a constitutionally-protected right.
VALDIVIA v. SCHWARZENEGGER 4831
other hearsay evidence can be used to corroborate or support
the reliability of proffered hearsay in a parole revocation hear-
ing without being subject to a balancing test. The court in
Comito specifically declined to consider the admissibility of
the underlying hearsay. 177 F.3d at 1169 (“While the addi-
tional evidence may also be subject in whole or in part to
valid objections based on hearsay and Comito’s right to con-
frontation, those challenges are not raised before us.”). While
the court in Hall did not subject the underlying hearsay to any
sort of balancing test, it did not articulate a particular rule as
to whether or when a balancing test should be employed. See
419 F.3d at 987.
We affirm, therefore, not because Hall and Comito hold
that “on balance . . . these courts expect corroboration to come
from competent evidence,” but because of the Supreme
Court’s description in Morrissey of the due process rights of
parolees.
[9] The basic question we face here is whether the govern-
ment should be required to provide good cause for the
absence of the declarant in the underlying hearsay statement
that it seeks to use as an indicia of reliability. To satisfy due
process, Morrissey requires the State to demonstrate good
cause. The Court in Morrissey considered the rights described
in its opinion to be a floor—the basic, minimal rights afforded
to parolees by due process. Morrissey, 408 U.S. at 488-89
(“Our task is limited to deciding the minimum requirements
of due process.”). Among these rights is “the right to confront
and cross-examine adverse witnesses (unless the hearing offi-
cer specifically finds good cause for not allowing confronta-
tion).” Id. at 489. The good cause balancing of Comito for all
hearsay fits comfortably with Morrissey’s basic minimum due
process guarantees for parolees. Admitting hearsay without
the good cause analysis does not.
The dissent’s concern that we have exceeded Morrissey’s
“minimum requirements,” 408 U.S. at 488-89, see Dissenting
4832 VALDIVIA v. SCHWARZENEGGER
Op. at 4843, is a concern not with our opinion, but with Com-
ito itself, which states:
Under Morrissey, every releasee is guaranteed the
right to confront and cross-examine adverse wit-
nesses at a revocation hearing, unless the govern-
ment shows good cause for not producing the
witness. This right to confrontation ensures that a
finding of a supervised release violation will be
based on verified facts. Accordingly, in determining
whether the admission of hearsay evidence violates
the releasee’s right to confrontation in a particular
case, the court must weigh the releasee’s interest in
his constitutionally guaranteed right to confrontation
against the Government’s good cause for denying it.
177 F.3d at 1170 (internal citations omitted). While Comito
could be construed as going beyond the minimal requirements
espoused in Morrissey, we are not bound to adhere only to
minimal requirements; Comito is not inconsistent with those
requirements, and no intervening precedent has arisen since
Comito, either in our circuit or in the Supreme Court, to sug-
gest otherwise.7
[10] In addition, allowing hearsay that does not pass Com-
ito balancing to be considered in the determination of a state-
ment’s reliability seems contrary to this Circuit’s holding in
Hall. Hall did say that “long-standing exceptions to the hear-
say rule that meet more demanding requirements for criminal
prosecutions should satisfy the lesser standard of due process
accorded the respondent in a revocation hearing.” Hall, 419
F.3d at 987 (emphasis added). Should satisfy, however, does
7
The dissent suggests our excerpting of Comito here to be “inapposite”
because “the hearsay at issue was actually admitted against the parolee as
evidence.” See Dissenting Op. at 7 (emphasis in original). However, in
both Hall and Comito, the hearsay was admitted after application of the
Comito balancing test. 177 F.3d at 1173; Hall, 419 F.3d at 986-87, 989.
VALDIVIA v. SCHWARZENEGGER 4833
not mean “do satisfy.” The court in Hall, after making this
statement, went on to subject Hall’s medical records, which
fell under the business records exception to the hearsay rule
(Fed. R. Evid. 803(6)), to Comito balancing, weighing “Hall’s
interest in excluding hearsay evidence . . . against the govern-
ment’s good cause for not producing [the witness].” Id. Thus,
following this circuit’s example in Hall, and the reasoning of
Morrissey and Comito, we believe that hearsay used to cor-
roborate other hearsay remains subject to Comito balancing.
The process nonetheless remains “flexible enough to consider
evidence . . . that would not be admissible in an adversary
criminal trial.” Id. (citing Morrissey, 408 U.S. at 489).
The State argues that subjecting all hearsay to this balanc-
ing test is too arduous a burden, eliminating the “flexibility”
Morrissey, id., seems to embrace. Comito itself, however,
allows for the admission of testimonial evidence not normally
admissible in criminal trials. While Crawford restricts the use
of certain unauthenticated evidence, Crawford, 541 U.S. at
61, in a parole revocation hearing, under the Comito balanc-
ing test, testimonial hearsay evidence is admissible against a
parolee without the testimony of a declarant, provided the
government demonstrates the requisite good cause for its
inability to produce the declarant.
[11] Therefore, subjecting underlying hearsay to the Com-
ito balancing test conforms with Morrissey and our precedent,
and the district court did not err in adopting this recommenda-
tion of the Special Master on this record.
F. Morrissey and Other Obligations Imposed on the
State
Other obligations imposed on the State by the March 2008
order, including professional training for Deputy Commis-
sioners, do not contravene the Supreme Court’s determination
that a hearing body need not necessarily be composed of judi-
cial officers or lawyers. Morrissey, 408 U.S. at 486. Nor does
4834 VALDIVIA v. SCHWARZENEGGER
the imposed disciplinary system contravene Morrissey’s
directive that hearing officers remain “neutral and detached.”
Id. at 489.
The March 2008 order not only encourages the neutral,
detached behavior envisioned by Morrissey, but also increases
the experience and training of the officers. Nor does it man-
date an entire body filled with judicial officers or lawyers,
which was the Court’s fear in Morrissey. Id. at 486 (“The
independent officer need not be a judicial officer.”) (emphasis
added).
[12] While the State was not found to have violated the
Injunction, the Special Master found that the State had not
fully complied with its requirements. Where the state has not
“fully complied with the court’s earlier orders,” the district
court has “ample authority to go beyond earlier orders.” Hutto
v. Finney, 437 U.S. 678, 687 (1978); see also Toussaint v.
McCarthy, 801 F.2d 1080, 1087 (9th Cir. 1986) (“a federal
court must order effective relief” and a “defendant’s history
of noncompliance with prior orders is a relevant factor in
determining the necessary scope of an effective remedy”).
Here, in implementing a disciplinary system, the district court
was merely attempting to ensure compliance with the Injunc-
tion and was therefore not limited by its earlier orders. The
obligations imposed by the district court here, therefore, do
not constitute error in contravention of court precedent.
G. Dismissal of the State’s Objections
[13] The district court did not err in dismissing the State’s
objections to the evidence presented in the Special Master’s
report. While the State has argued several potential evidenti-
ary errors in its briefs, we address here only those for which
the State has provided support as opposed to mere conjecture.
[14] Evidentiary rulings are reviewed for abuse of discre-
tion, and should not be reversed unless, more probably than
VALDIVIA v. SCHWARZENEGGER 4835
not, the error tainted the outcome. Harman, 211 F.3d at 1175;
Gribben v. United Parcel Serv., Inc., 528 F.3d 1166, 1172
(9th Cir. 2008); Fed. R. Evid. 103(a). In addition, we may
affirm the district court’s decision to admit evidence on any
basis in the record, so long as the issue has been briefed.
United States v. Vizcarra-Martinez, 66 F.3d 1006, 1011 (9th
Cir. 1995) (“court of appeals may affirm a decision to admit
evidence on a different ground than that relied upon by the
district court as long as the issue has been fully briefed on
appeal, and there is sufficient basis in the record for us to
address it” (internal quotation marks omitted)). The Special
Master did not improperly use judicial notice, nor rely on
inadmissible hearsay to support his findings.
The Special Master did not use judicial notice to bypass the
process of authenticating documents on which he relied. Tran-
scripts were submitted as evidence, but the original tapes
remained in the State’s custody. For the State to challenge the
authenticity of transcripts to which they have the original
tapes defeats the purpose of the evidentiary rule. Plaintiffs
attempted to obtain the tapes from the State; when they were
declined, they resorted to transcripts.8 Plaintiffs were not
required to submit the originals for authentication in court,
and the State never challenged their authenticity in court, ren-
dering judicial notice possible.9
Judicial notice is used to supplant authentication of “adjudi-
cative facts”—“simply the facts of the particular case.” Fed.
8
Under Fed. R. Evid. R. 1004(3), the party is not required to present the
original in court (here, the recording), “[a]t a time when an original was
under the control of the party against whom offered, that party was put on
notice, by the pleadings or otherwise, that the contents would be a subject
of proof at the hearing, and that party does not produce the original at the
hearing[.]”
9
See Fed. R. Evid. 201 (“A judicially noticed fact must be one not sub-
ject to reasonable dispute in that it is . . . capable of accurate and ready
determination by resort to sources whose accuracy cannot reasonably be
questioned.”).
4836 VALDIVIA v. SCHWARZENEGGER
R. Evid. 201, Advisory Committee Notes. Stated another way,
“the adjudicative facts are those to which the law is applied
in the process of adjudication. They are the facts that nor-
mally go to the jury. They relate to the parties, their activities,
their properties, their businesses.” Id. (citations omitted). The
authenticity of these transcripts was not challenged by either
party. Thus judicial notice was proper, and the Special Master
correctly admitted and relied upon the transcripts.
Additionally, the Special Master’s findings were based not
on inadmissible hearsay, but rather on observations by
employees and observers, statements based in personal
knowledge that were not out-of-court statements. For these
reasons, we affirm the district court’s March 2008 order
adopting the Special Master’s report and recommendations.
II. The March 2009 Order
The district court, in its March 2009 order, denied modifi-
cation of the Injunction to conform with California’s Proposi-
tion 9. While the court correctly found the State had not met
its burden to show a significant change in circumstances nor-
mally necessary for modification under Rufo v. Inmates of
Suffolk County Jail, 502 U.S. 367, 384 (1992), such a show-
ing may not have been necessary in light of federalism princi-
ples. The district court made no express determination that the
Injunction’s procedures were necessary to remedy federal
constitutional violations, and did not expressly find any aspect
of the California parole revocation procedures, as modified by
Proposition 9, in violation of basic constitutional rights.
[15] A district court may refuse to modify a federal injunc-
tion in light of a given state law where such a law violates
federal law. See Clark v. Coye, 60 F.3d 600, 605 (9th Cir.
1995). However, merely finding that a state law conflicts with
a federal injunction, such as the court found here, is insuffi-
cient to deny modification of the injunction, and “clearly con-
stitute[s] an abuse of discretion.” Id. (“In the case before us,
VALDIVIA v. SCHWARZENEGGER 4837
Bill 35 was held to be inconsistent with the terms of the
injunction, not with the federal law upon which the injunction
was based. The district court has never concluded that Bill 35
violates federal law. It is irrelevant whether Bill 35 frustrates
the broad purpose of the district court’s injunction.”).
Further, while the Injunction was put in place to remedy
claimed constitutional violations, it is not clear that these pro-
cedures were required to remedy the violation of basic consti-
tutional rights. The district court made this clear in the
hearing prior to issuing the March 2009 order:
[I]n this case I never found any of the things that
now everybody is concerned about, whether they
were consistent with the Constitution of the United
States or not. . . . . What I found was that the parties
had agreed to get rid of this lawsuit. There clearly
were some procedures which were violative of the
Federal Constitution, and they said, “Look, we’re
going to solve this whole problem, and we, the plain-
tiffs, will give away some of our constitutional rights
in order to gain these other rights.” . . . . It isn’t
really true that this Court made a determination that
these specific procedures were required by the Fed-
eral Constitution. The Court said, “You guys are
happy, I’m happy.”
While these procedures were put in place in an attempt to
remedy a claimed constitutional violation, they were not nec-
essary or required by the Constitution. There is no indication
anywhere in the record that these particular procedures are
necessary for the assurance of the due process rights of paro-
lees.
[16] This circuit’s law is clear: unless a state law is found
to violate a federal law, or unless the Injunction is found nec-
essary to remedy a constitutional violation, federalism princi-
ples require the reconciliation of the state law and federal
4838 VALDIVIA v. SCHWARZENEGGER
injunctions. See Keith v. Volpe, 118 F.3d 1386, 1393-94 (9th
Cir. 1997) (finding state law prevailed, and vacating injunc-
tion, where no determination made by district court that the
injunction was necessary to remedy a constitutional viola-
tion); Clark, 60 F.3d at 604 (“[T]he scope of federal injunc-
tive relief against an agency of state government must always
be narrowly tailored to enforce federal constitutional and stat-
utory law only.”). Therefore, we vacate and remand the
March 2009 order for the court to reconcile Proposition 9 with
the Injunction.
CONCLUSION
We affirm the district court’s March 2008 order, as we are
bound by Comito. Because the district court made no express
determination that any aspect of the California parole revoca-
tion procedures, as modified by Proposition 9, violated consti-
tutional rights, or that the Injunction was necessary to remedy
a constitutional violation, we vacate and remand the March
2009 order for the district court to make that determination
and reconcile the Injunction with California law as expressed
in Proposition 9.
AFFIRMED IN PART; VACATED AND REMANDED
IN PART.
Each party to bear its own costs on appeal.
NOONAN, Circuit Judge, concurring and dissenting:
I concur in Part II of the majority’s opinion. A federal court
cannot disregard or encroach on state prerogatives unless it
must do so to vindicate federal law or the Constitution. For
this same reason, however, I dissent from the majority’s anal-
ysis in Part I. Hearsay evidence that falls within a firmly
rooted hearsay exception does not offend any federal right
VALDIVIA v. SCHWARZENEGGER 4839
held by parolees, and we therefore have no authority to
impose “Comito balancing” when such evidence is proffered
in parole revocation hearings conducted by a state. The major-
ity’s contrary holding places the Ninth Circuit in conflict with
the only other circuit to squarely consider this issue. See
United States v. Williams, 443 F.3d 35, 45 (2d Cir. 2006). I
also dissent because I see no basis to require additional “Com-
ito balancing” where the hearsay in question serves only to
corroborate the reliability of proffered hearsay evidence and
is not actually admitted against the parolee.
I.
In hearings on the revocation of parole, Morrissey instructs
that the “minimum requirements of due process” include “the
right to confront and cross-examine adverse witnesses.” 408
U.S. at 488-89. This right to confrontation is applied through
the Due Process Clause of the Fourteenth Amendment. It pro-
vides no greater guarantee than that afforded to criminal
defendants under the Sixth Amendment. See, e.g., Gagnon v.
Scarpelli, 411 U.S. 778, 782 n.5 (1973); Morrissey, 408 U.S.
at 489; United States v. Simmons, 812 F.2d 561, 564 (9th Cir.
1987). The Sixth Amendment, in turn, does not enact the
hearsay rule, nor is it offended by evidence that falls within
a firmly rooted hearsay exception. As the Supreme Court
explained:
We have allowed the admission of statements falling
within a firmly rooted hearsay exception since the
Court’s recognition in Mattox v. United States, 156
U.S. 237 (1895), that the Framers of the Sixth
Amendment “obviously intended to . . . respec[t]”
certain unquestionable rules of evidence in drafting
the Confrontation Clause. Justice Brown, writing for
the Court in that case, did not question the wisdom
of excluding deposition testimony, ex parte affida-
vits and their equivalents. But he reasoned that an
unduly strict and “technical” reading of the Clause
4840 VALDIVIA v. SCHWARZENEGGER
would have the effect of excluding other hearsay evi-
dence, such as dying declarations, whose admissibil-
ity neither the Framers nor anyone else 100 years
later “would have [had] the hardihood . . . to ques-
tion.”
Lilly v. Virginia, 527 U.S. 116, 125-26 (1999) (citations omit-
ted) (alterations and ellipses in original); see Melendez-Diaz
v. Massachusetts, 129 S. Ct. 2527, 2539 (2009) (observing
that most hearsay exceptions do not implicate a criminal
defendant’s right to confrontation because they “cover[ ]
statements that by their nature [are] not testimonial—for
example, business records or statements in furtherance of a
conspiracy” (quoting Crawford v. Washington, 541 U.S. 36,
56 (2004))).
By requiring “Comito balancing” where no federal confron-
tation right is infringed, the majority recedes from the princi-
ples of federalism espoused in Part II of its opinion. It
imposes on the state a procedure crafted by the Ninth Circuit
that has heretofore applied only to the revocation of federal
supervised release or probation, not the revocation of state
parole. See Hall, 419 F.3d at 982; Comito, 177 F.3d at 1167;
United States v. Walker, 117 F.3d 417, 418-19 (9th Cir.
1997); United States v. Martin, 984 F.2d 308, 309 (9th Cir.
1993); Simmons, 812 F.2d at 562-63.
The majority requires this procedure whenever the state
relies on “hearsay” evidence, yet its opinion does not purport
to define this now critical term. In the federal system, the term
“hearsay” expressly excludes, inter alia, statements by cocon-
spirators or admissions by a party to the proceeding. See Fed.
R. Evid. 801(d)(1), (2); Hall, 419 F.3d at 986. But under Cali-
fornia law, these same statements are termed “hearsay” and
are admissible only under “hearsay exceptions.” See Cal.
Evid. Code §§ 1200-01, 1220, 1223. Which definition of
“hearsay” does the majority mandate in California’s parole
proceedings? I presume we will be called upon to answer this
VALDIVIA v. SCHWARZENEGGER 4841
question—and others like it—in due course. Contra Mor-
rissey, 408 U.S. at 488 (“We cannot write a code of proce-
dure; that is the responsibility of each State.”).1
By demanding that the state establish “good cause” to rely
on business records, excited utterances, and the like, the
majority expands the confrontation rights of parolees beyond
those held by criminal defendants. Contra id. at 489; Sim-
mons, 812 F.2d at 564. The majority attempts to justify this
expansion by noting that—unlike in criminal trials—the state
can always trump parolees’ confrontation rights, even if no
firmly rooted hearsay exception applies. See Maj. Op. 4829.
But it is quite likely that most hearsay evidence offered in
parole hearings will fall under some firmly rooted hearsay
exception. See generally, e.g., United States v. Wake, 948
F.2d 1422, 1435 (5th Cir. 1991) (“[T]here are, needless to
say, numerous exceptions to hearsay not being admissible.”).
As a matter of constitutional law, the majority equips parolees
to exclude such evidence if the state cannot demonstrate
“good cause,” yet the admissibility of this same evidence
against criminal defendants is a foregone conclusion.2
The majority braces its holding by noting that parolees will
still lack many of the other rights enjoyed by criminal defen-
dants, such as the right to a jury and proof beyond a reason-
able doubt. See Maj. Op. 4920. But this rationale is foreign to
our jurisprudence. We cannot retool discrete constitutional
1
In my view, the type of “hearsay” evidence that raises federal due pro-
cess concerns is straightforward. Because the Fourteenth Amendment con-
fers no greater confrontation right than that afforded to criminal
defendants, the state must show “good cause” only where it relies on evi-
dence that would violate the Confrontation Clause in a criminal proceed-
ing.
2
The majority posits that certain rules of evidence, such as Rule 403 of
the Federal Rules of Evidence and its state analogues, may help to allevi-
ate this disparity. See Maj. Op. 4829. I decline to rely on legislative enact-
ments and the discretion of trial judges to offset the asymmetry that the
majority injects into the Constitution.
4842 VALDIVIA v. SCHWARZENEGGER
guarantees so long as the total quantum of “due process”
afforded to parolees will not exceed that of criminal defen-
dants. Like parolees, juveniles in delinquency proceedings
have no right to a jury trial, see McKeiver v. Pennsylvania,
403 U.S. 528, 545 (1971), yet we are not empowered to
enhance juveniles’ confrontation rights, raise the burden of
proof, or demand greater effectiveness from their appointed
attorneys.
The majority asserts that its decision is compelled by the
“law of this circuit,” rejecting the Second Circuit’s contrary
views in a footnote. Maj. Op. 4826; id. at 4828 n.4. Yet our
prior caselaw involved federal probationers challenging evi-
dence that would be inadmissable against criminal defendants.
These precedents do not dictate our decision in a case involv-
ing state parolees disputing evidence “whose admissibility
neither the Framers nor anyone else 100 years later ‘would
have [had] the hardihood . . . to question.’ ” Lilly, 527 U.S.
at 126 (alteration and ellipses in original).
Furthermore, our most recent decision in Hall strongly sup-
ports the approach taken by the Second Circuit. Compare
United States v. Aspinall, 389 F.3d 332, 344 (2d Cir. 2004)
(“[T]he [due-process] balancing analysis need not be made
where the proffered out-of-court statement is admissible
under an established exception to the hearsay rule.”), with
Hall, 419 F.3d at 987 (“[L]ong-standing exceptions to the
hearsay rule . . . should satisfy the lesser standard of due pro-
cess accorded the respondent in a revocation proceeding.”).
Indeed, the Hall court favorably cited the same line of Second
Circuit precedents that the majority today rejects out of hand.
See Hall, 419 F.3d at 986 (citing Aspinall, 389 F.3d at 342).
The majority’s headlong decision to create a circuit split is
both unpersuasive and unnecessary.
II.
To apply its prescribed “balancing test,” the Comito court
instructed decisionmakers to consider “the accuracy and reli-
VALDIVIA v. SCHWARZENEGGER 4843
ability of the proffered [hearsay] evidence,” and advised that
the greater the reliability of the proffered evidence, the lesser
a respondent’s interest “in testing it by exercising his right to
confrontation.” See 177 F.3d at 1171. Today, the majority
holds that when hearsay is considered solely to evaluate the
reliability of proffered hearsay evidence, it too must be inde-
pendently subjected to “Comito balancing.” To support its
holding, the majority excerpts at length from our decisions in
Comito and Hall, yet in each instance the hearsay at issue was
actually admitted against the parolee as evidence; it was not
used solely to assess the reliability of hearsay evidence prof-
fered for admission. See Maj. Op. 4832-33. The majority’s
excerpts are inapposite.
It is well-established, moreover, that trial judges may rou-
tinely consider inadmissible evidence to evaluate the compe-
tence of evidence actually proffered for admission. See, e.g.,
Fed. R. Evid. 104(a). No decision by the Supreme Court or
the Ninth Circuit has found this practice to contravene the
minimum requirements of due process or to require additional
procedural safeguards. By requiring such safeguards in parole
revocation hearings, the majority departs from Supreme Court
precedent and exceeds our limited authority to intervene in
the criminal justice system of the fifty states. The majority
declares: “[W]e are not bound to adhere only to minimal
requirements [of due process].” Maj. Op. 4831. The Supreme
Court has stated: “Our task is limited to deciding the mini-
mum requirements of due process.” Morrissey, 408 U.S. at
488-89.