BILL ANALYSIS �
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. �See 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