BILL ANALYSIS Ó AB 1165 Page 1 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 AB 1165 Page 2 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 AB 1165 Page 3 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 AB 1165 Page 4 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 AB 1165 Page 5 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 AB 1165 Page 6 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