BILL ANALYSIS �
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2011-2012 Regular Session
AB 1165 (Achadjian)
As Amended January 5, 2012
Hearing Date: June 12, 2012
Fiscal: No
Urgency: No
RD
SUBJECT
Domestic Violence: Probation: Terms
DESCRIPTION
Existing law places specified conditions on the probation of a
criminal defendant convicted of certain domestic violence
crimes, including that he or she attend a Batterer's Treatment
Program (BTP) or another appropriate counseling program
designated by the court if none is available, for a period of
not less than one year, as specified. Additionally, it
provides that the probation department has the sole authority to
approve a batterer's program for this purpose.
Existing law, under the Government Tort Claims Act, provides
that a public employee is not liable for an injury resulting
from the employee's act or omission where it was a result of the
exercise of the discretion vested in the employee, whether or
not such discretion was abused, except as otherwise provided by
statute.
This bill would provide that an act or omission relating to the
approval of the batterer's treatment programs, as specified, is
a discretionary act for the purposes of the above provision.
BACKGROUND
Since 2003, California law has required that, as a condition of
probation, a person who has committed certain crimes of domestic
violence must attend a Batterer's Treatment Program (BTP). A
BTP must meet certain specifications to qualify for
certification for this purpose and existing law designates the
(more)
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probation department as the sole authority to approve any
issuance, denial, suspension, and revocation of BTP
certifications, as well as to cease new enrollments or referrals
to a batterer's program. (Pen. Code Sec. 1203.097(c)(5).)
In recent years, even though California's Government Tort Claims
Act provides for the immunity of public employees and public
entities for their discretionary acts or omissions where the
injury is a result of the exercise of the discretion vested in
the employee, litigation arose in two instances over the issue
of certification of certain programs. (Gov. Code Secs. 820.2
and 815.2(b), respectively.) In light of those cases, this bill
seeks to address the issue of liability for probation
departments making decisions as to the approval of BTPs.
Thus, this bill, sponsored by the Chief Probation Officers of
California, would seek to prohibit the need for future
litigation over this issue by specifying in these sections that
the act or omission related to the approval of the batterer's
treatment programs is a discretionary act for the purposes of
Section 820.2 of the Government Tort Claims Act.
CHANGES TO EXISTING LAW
Existing law provides that "domestic violence" is abuse
perpetrated against any of the specified persons, including
among others:
a spouse or former spouse;
a person with whom the respondent is having or has had a
dating or engagement relationship; and
a child of a party or a child who is the subject of an action
under the Uniform Parentage Act, where the presumption applies
that the male parent is the father of the child to be
protected. (Fam. Code Sec. 6211.)
Existing law requires that a person granted probation for a
crime of domestic violence, as defined above, be subject to
special conditions upon probation, including, among other
things, that the person successfully complete a batterer's
program, or another appropriate counseling program designated by
the court if none is available, for a period of not less than
one year, as specified. (Pen. Code Sec. 1203.097(a)(6).)
Existing law mandates that the court or the probation department
refer defendants only to batterer's programs that follow
specified standards. Existing law requires that the probation
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department design and implement an approval and renewal process
for batterer's programs and solicit input from criminal justice
agencies and domestic violence victim advocacy programs. (Pen.
Code Sec. 1203.097(c).)
Existing law provides that the probation department shall have
the sole authority to approve a batterer's program for probation
and that the program shall be required to obtain only one
approval, but shall renew that approval annually. (Pen. Code
Sec. 1203.097(c)(5).)
Existing law prescribes certain procedures for the approval of a
new or existing program. (Pen. Code Sec. 1203.097(c)(5)(A).)
Existing law provides that the probation department has the sole
authority to approve the issuance, denial, suspension, or
revocation of approval and to cease new enrollments or referrals
to a batterer's program. Existing law requires the probation
department to review information relative to a program's
performance or failure to adhere to standards, or both.
Existing law permits the probation department to suspend or
revoke any approval, or deny an application to renew an
approval, or to modify the terms and conditions of approval, as
specified. (Pen. Code Sec. 1203.097(c)(5)(C).)
Existing law , the Government Tort Claims Act, provides that a
public employee is not liable for an injury resulting from the
employee's act or omission where it was a result of the exercise
of the discretion vested in the employee, whether or not such
discretion was abused, except as otherwise provided by statute.
(Gov. Code Sec. 820.2.)
Existing law provides that 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. (Gov.
Code Sec. 815.2(b).)
This bill would provide that an act or omission relating to the
approval of the batterer's treatment programs under Section
1203.097(c)(5) is a discretionary act pursuant to the above
provision.
This bill makes other technical and non-substantive changes.
COMMENT
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1. Stated need for the bill
According to the author:
County probation departments are not clearly provided immunity
from civil liability in existing statute for the
�certification] of domestic violence batterers programs,
resulting in litigation filed against probation departments.
Two cases have been brought against a county probation
department for failing to approve or renew applications by a
provider seeking batterer's Treatment Certification. As a
result of those cases, the concern has been raised to seek to
clarify that the decision to approve or disapprove a program
is discretionary.
Assembly Bill 1165 would provide county probation departments
responsible for the certification of domestic violence
batterers programs with immunity from civil liability, similar
to immunity that is provided to public entities in the
Government Code. This bill would clarify that decisions to
approve or disapprove a batterer's treatment program shall be
deemed a "discretionary" act.
The sponsor of the bill, the Chief Probation Officers of
California writes: that, "�s]ince 2003, a person who is on
probation for committing a crime of domestic violence is subject
to special conditions on 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. . . . It is
critical that probation 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."
2. Government liability traditionally hinges on discretionary
versus ministerial acts
Existing law requires, as condition of probation, that a
defendant who has committed specified crimes of domestic
violence complete a Batterer's Treatment Program (BTP), as
specified. Under this law, the probation department is
designated as the sole authority for approving the issuance,
denial, suspension or revocation of a program's certification
and is required to design and implement an approval and renewal
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process for these programs. This bill would expressly state
within that section that an act or omission relating to the
approval of the batterer's treatment programs, as specified, is
a discretionary act for the purposes of the existing provision
in the Government Tort Claims Act that provides government
employees and entities with this immunity as a general matter.
Specifically, that immunity provision provides that a public
employee is not liable for an injury resulting from the
employee's act or omission where it was a result of the exercise
of the discretion vested in the employee, whether or not such
discretion was abused, except as otherwise provided by statute.
(Gov. Code Sec. 820.2.) Moreover, because 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, the probation department, as well as its employees,
would be expressly protected from liability. (Gov. Code Sec.
815.2(b).) In other words, this bill would result in express
immunity from liability for probation departments and their
employees who are exercising discretion in the performance of
their vested duties under California law, Section 1203.097 of
the Penal Code relating to BTPs.
It should be noted that probation departments arguably already
enjoy the protection of this provision of the Tort Claims Act.
While some of the features that a program seeking certification
must meet are specified in the statute, and while the probation
department is otherwise required to design and provide certain
processes for its approval process, the ultimate decision of
whether to approve the certification of a program (or,
inversely, deny it) is for the probation department to make.
Thus, a probation department's performance of its duty to
approve such programs necessarily involves discretionary acts as
the determination of whether or not an applicant program meets a
statutorily required component or otherwise should be certified,
on some level, inherently requires the exercise of judgment and
discretion of the probation department.
Nonetheless, proponents point to two cases that were brought in
2009 and 2010 against a probation department regarding the
certification of a program. (See Winds v. Probation Department
of Sacramento (2009) U.S. Dist. LEXIS 105548; Sabb v. Sacramento
County Superior Court, Sacramento County Probation Department
(2010) Case No. 34-2010-80000579.) While these cases have since
been resolved by way of summary judgment in the first case and,
according to the author, a settlement in the second, their
existence arguably supports the need to specify in the
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BTP-related statute that the act of making that decision of
approval (or denial) is a discretionary act for which the
probation department has immunity under the Tort Claims Act.
As a matter of public policy, significant concerns can arise
when immunity is provided to certain persons or groups,
precluding them from being held liable for injuries they have
caused others by their acts or omissions. At the same time
however, governmental immunity serves a significant public
policy interest of encouraging public employees and entities to
perform their duties as otherwise mandated under the law,
without fear of litigation as a result of carrying out
compliance with those duties. The basis of the immunity rule
codified in the Tort Claims Act is that "�t]he subjection of
officials, the innocent as well as the guilty, to the burden of
a trial and to the danger of its outcome would impair their zeal
in the performance of their functions and it is better to leave
the injury unredressed than to subject honest officials to the
constant dread of retaliation." (Lipman v. Brisbane Elementary
School Dist. (1961) 55 Cal.2d 224, 229.)
With respect to the issue of governmental immunity, and
important to the application of that immunity both in general
and in this bill, is that a distinction has been drawn between
discretionary acts and ministerial acts by public employees.
Ministerial acts are generally those in which the entity or
employee has no choice and is required by law to perform-such as
a statutory requirement that the probation department provide a
party notice of the requirements to complete a batterer's
program under Penal Code Section 1203.097(b)(4). (Scott v.
County of Los Angeles (1994) 27 Cal.App.4th 125.) In other
words it does not require the exercise of judgment and
discretion. This distinction is important, as immunity of a
public entity is not achieved where its employee's acts
complained of are not discretionary acts within the meaning of
the Section 820.2 of the Tort Claims Act. (Elton v. County of
Orange (1970) 3 Cal.App.3d 1053.) Again, the decision of
whether or not to approve the certification of a program is
ultimately left to the probation department, and while the
statute otherwise provides for elements that a program must
meet, it does not require that the probation department approve
one that does meet those elements.
In attempting to ensure the immunity of probation departments in
making decisions surrounding the approval of a program, the bill
is appropriately limited in scope to only those discretionary
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acts or omissions involved in making that decision of whether or
not to approve the certification of a program, as specified. It
does not provide immunity to the probation department or its
employees for any other acts or omissions taken in the
performance of its other duties under Section 1203.097 relating
to the probation of these individuals and BTPs.
Support : American Federation of State, County and Municipal
Employees, AFL-CIO; Association for Los Angeles Deputy Sheriffs;
California Probation Parole and Correctional Association; Los
Angeles County Probation Officers Union; Riverside Sheriffs'
Association; State Coalition of Probation Organizations
Opposition : None Known
HISTORY
Source : Chief Probation Officers of California (CPOC)
Related Pending Legislation : None Known
Prior Legislation : None Known
Prior Vote :
Assembly Floor (Ayes 64, Noes 0)
Assembly Judiciary Committee (Ayes 10, Noes 0)
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