BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  AB 1165
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          Date of Hearing:   January 10, 2012

                           ASSEMBLY COMMITTEE ON JUDICIARY
                                  Mike Feuer, Chair
                  AB 1165 (Achadjian) - As Amended: January 5, 2012

                                  PROPOSED CONSENT
           
          SUBJECT  :   Probation departments: Immunity

           KEY ISSUE  :  Should a probation department's Decision to approve 
          a batterer's treatment program be deemed a "discretionary" act 
          within the meaning of an existing government immunity statute?  

           FISCAL EFFECT  :  As currently in print this bill is keyed 
          non-fiscal. 

                                      SYNOPSIS
                                          
          Since 2003, a person who is on probation for committing a crime 
          of domestic violence is subject to special conditions of 
          probation, including completion of an approved batterer's 
          treatment program.  As part of this requirement, probation 
          departments are given "sole authority" to approve, renew, or 
          revoke a batterer's program.  This bill seeks to grant probation 
          departments immunity from civil liability for their decisions to 
          approve or disapprove a particular program.  Under existing 
          Government Code Section 820.2 - a key provision of the state 
          Tort Claims Act - government employees and agencies are already 
          immune from civil liability for acts or omissions that result 
          from the exercise of "discretion" that is vested in them.  
          Abundant case law makes it clear that this provision provides 
          immunity to "discretionary" acts, but it does not necessarily 
          provide immunity to acts that are merely "ministerial" - i.e. 
          the carrying out of a policy once the discretionary decision has 
          been made.  

          This non-controversial bill specifies that decisions to approve 
          (or not approve) a program shall be deemed a "discretionary" 
          act.  A strong case can be made that the statute establishing 
          the batterer's program already makes it clear that the decision 
          to approve or disapprove a batterer's program is necessarily 
          discretionary, and therefore such decisions are already immune 
          from civil liability.  However, two relatively recent lawsuits 
          have been filed against county probation departments for failing 








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          to approve or renew applications by persons seeking to become 
          Certified Batterer's Program providers.  Although at least one 
          of these lawsuits was dismissed on a motion for summary 
          judgment, and the fate of the other is not clear, the author and 
          sponsor seek to clarify that the decision to approve or 
          disapprove a program is discretionary as a matter of law.  In 
          adopting this approach, the bill follows an established 
          precedent.  Because the bill only applies to the specific 
          provision dealing with approval of the programs, it does not 
          grant immunity for failure to comply with other aspects of the 
          batterer's program statute, such as the mandatory requirement to 
          inform victims about the disposition of perpetrator's case.  
          This bill is sponsored by the Chief Probation Officers of 
          California (CPOC), and it is supported by several local 
          probation officer and law enforcement groups.  There is no known 
          opposition to the bill.   

           SUMMARY  :  Specifies that an act or omission relating to the 
          approval of a batterer's treatment program for probationers who 
          have been convicted of crimes of domestic violence is a 
          discretionary act pursuant to Section 820.2 of the Government 
          Code. 

           EXISTING LAW  : 

          1)Requires that a person granted formal probation following a 
            conviction for domestic violence be subject to certain terms 
            of probation, including a minimum probation period of 36 
            months and successful completion of a batterer's program, as 
            specified.  (Penal Code Section 1203.097 (a).) 

          2)Requires, in addition to the above terms of probation, that 
            the probation department make an investigation of the 
            defendant, as specified, for purposes of determining which 
            batterer's program would be appropriate for the defendant and 
            specifies that this information shall be made available to the 
            batterer's program if requested.  Provides that once a 
            defendant has been ordered to a batterer's program the 
            probation department shall conduct an initial assessment of 
            the defendant and notify the victim regarding the requirements 
            of the defendant's participation in the program and other 
            pertinent information.  (Penal Code Section 1203.097 (b).) 

          3)Requires the probation department to only refer defendants to 
            programs that meet specified standards, to devise and 








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            implement an approval and renewal process for the batterer's 
            program, and to solicit input from criminal justice agencies 
            and domestic violence victim advocacy programs.  Requires, 
            generally, that programs contain certain components, including 
            ongoing supervision and evaluation of all programs and the 
            defendant's progress within any given program.  (Penal Code 
            Section 1203.097 (c).) 

          4)Specifies that the probation department shall have sole 
            authority to approve, renew, or revoke a batterer's program 
            and sets forth the procedures for approving a new program or 
            renewing or revoking an existing program.  (Penal Code Section 
            1203.097 (c) (5).)

          5)Provides that, except as otherwise provided by statute, a 
            public employee is not liable for an injury resulting from his 
            or her act or omission where the act or omission was the 
            result of the exercise of discretion vested in him or her, 
            whether or not the discretion was abused.  (Government Code 
            Section 820.2.) 

          6)Provides that, except as otherwise provided by statute, a 
            public entity is not liable for an injury resulting from an 
            act or omission of an employee of the public entity where the 
            employee is immune from liability.  (Government Code Section 
            815.2 (b).) 

          7)Provides that neither a public entity nor a public employee is 
            liable for any injury resulting from determining whether to 
            parole or release a prisoner or from determining the terms and 
            conditions of his or her parole or release or from determining 
            whether to revoke his or her parole or release.  (Government 
            Code Section 845.8 (a).) 

           COMMENTS  :  Since 2003, a person who is on probation for 
          committing a crime of domestic violence is subject to special 
          conditions of probation, including completion of an approved 
          batterer's treatment program.  As part of this requirement, 
          probation departments are given "sole authority" to approve, 
          renew, or revoke a batterer's program.  According to the author, 
          this bill "will provide immunity from civil liability to county 
          probation departments responsible for the certification of 
          domestic violence batterer's programs, similar to immunity for 
          public entities provided elsewhere in the Government Code."  The 
          author and sponsor note that, in order for probation departments 








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          to meet their statutory requirements, they must be free to 
          approve only those programs that meet program standards, and to 
          deny approval or renewal where the programs fall short.    

          Although the author and sponsor recognize that existing law 
          already provides public entities with immunity from liability 
          for injuries caused by their "discretionary" acts, two recent 
          lawsuits challenging the right of county probation officers to 
          deny program approval or renewal suggest the need to clarify 
          that program approval is within the discretion of the probation 
          department and, therefore, immune from civil liability.  This 
          bill achieves this by expressly stating that the decision to 
          approve a batterer's program is a discretionary act within the 
          meaning of Government Code Section 820.2, the general immunity 
          provision within the Torts Claim Act. 

          Although current law generally provides that public employees 
          are not liable for injuries caused by discretionary acts, public 
          employees may be held liable for acts or omissions that are 
          deemed "ministerial" or "mandatory" rather than "discretionary." 
           That is, while public employees (and by extension public 
          entities) are not liable for making the "wrong" decision where 
          the law has clearly assigned to them the authority to make those 
          decisions, once the policy decision has been made, a public 
          employee may be liable for subsequent "ministerial" acts in 
          executing the decision, or for failure to perform acts that are 
          "mandatory."  Discretion, as one court put it, means that "there 
          is no hard and fast rule as to the course of conduct that one 
          must or must not take."  Historically, the justification for 
          granting immunity for such decisions that require some degree of 
          discretion is to permit public employees to zealously perform 
          their official duties without fear of second-guessing and 
          exposure to civil liability.  ÝSee e.g. Whitcombe v. County of 
          Yolo (1977) 73 Cal. App. 3d 698 (holding that public employees 
          are not liable for acts of discretion); cf. Johnson v. 
          California (1968) 68 Cal. 2d 782, holding that "discretionary" 
          decision to parole a prisoner did not extend to the subsequent 
          "ministerial" act of failure to warn an identifiable victim); 
          and Wallace v. City of Los Angeles (1993) 12 Cal. App. 4th 1385 
          (same).] 

           Prior Legislative Determinations that Certain Acts Are 
          Discretionary  .  Prior to the most recent amendments, this bill 
          would have expressly provided that a probation department was 
          not liable for any "good faith" conduct arising out of its 








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          statutory obligation to approve or disapprove a batterer's 
          program.  However, such an approach would not have been 
          consistent with existing immunity principles or with the 
          approach that the Legislature has taken in the past.  It appears 
          that one of the most commonly litigated issues in government 
          immunity cases is whether the act or omission that allegedly 
          caused the injury was a "discretionary" act (which is immune 
          from liability) or a "ministerial" or "mandatory" act (which is 
          not necessarily immune from liability).  (See e.g. "Comments" in 
          Restatement of Torts, Second, Section 895D.)  Therefore, rather 
          than create a new express immunity, the past practice of the 
          Legislature has been to expressly state that a particular act or 
          decision is "discretionary" for purposes of Government Code 
          Section 820.2.  (See e.g. Food & Agriculture Code Section 2286 
          and Penal Code Section 679.08 (c), which adopt language almost 
          identical to that proposed by the most recent version of this 
          bill.)  This approach does not confusingly create a new immunity 
          in addition to the immunity already provided by law; rather, 
          this approach simply makes it clear that the act or decision 
          which the public employee has been statutorily empowered to make 
          is "discretionary" as a matter of law and therefore immune from 
          civil liability.  

           Liability of Public Employee is Co-Extensive with Liability of a 
          Public Entity  .  Although the author's background material speaks 
          in terms of the liability of the probation "department" while 
          the referenced Government Code Section 820.2 speaks in terms of 
          public "employees," the California Supreme Court has concluded 
          that in enacting the Tort Claims Act the Legislature intended 
          that liability of public entities and public employees be 
          "co-extensive."  Thus, while Government Code Section 820.2 only 
          immunizes public "employees" from liability, Section 815.2 (b) 
          clearly provides that public entities are only liable to the 
          extent that the public employee would be liable.  (Johnson v. 
          California (1968) 69 Cal. 2d 782, 787 n. 3.) 

           ARGUMENTS IN SUPPORT :  According to the author, 

             Assembly Bill 1165 will provide immunity from civil 
             liability to county probation departments responsible 
             for the certification of domestic violence batterers 
             programs, similar to immunity that is provided to public 
             entities in the Government Code. As probation 
             departments seek to certify programs that have shown 
             proven positive outcomes, it is critical that probation 








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             departments have the authority to certify programs that 
             meet all of the requirements of the statute and show 
             compliance with the requirements of the law without 
             being held civilly liable for carrying out these 
             requirements.

           REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           
          Chief Probation Officers of California (CPOC)
          Association for Los Angeles Deputy Sheriffs 
          Los Angeles County Probation Officers Union 
          Riverside Sheriffs' Association 

           Opposition 
           
          None on file 
           
          Analysis Prepared by  :    Thomas Clark / JUD. / (916) 319-2334