BILL ANALYSIS �
AB 1165
Page 1
CONCURRENCE IN SENATE AMENDMENTS
AB 1165 (Achadjian)
As Amended August 8, 2012
Majority vote
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|ASSEMBLY: |64-0 |(January 13, |SENATE: |38-0 |(August 20, |
| | |2012) | | |2012) |
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Original Committee Reference: PUB.S.
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.
The Senate amendments incorporate amendments made by AB 2094
(Butler), for chaptering purposes.
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.
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.
3)Requires the probation department to only refer defendants to
programs that meet specified standards, to devise and
implement an approval and renewal process for the batterer's
program, and to solicit input from criminal justice agencies
AB 1165
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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.
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.
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.
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.
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.
AS PASSED BY THE ASSEMBLY , this bill was substantially similar
to the version approved by the Senate.
FISCAL EFFECT : None
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
to meet their statutory requirements, they must be free to
approve only those programs that meet program standards, and to
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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).]
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.)
AB 1165
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Rather than create a new express immunity for certain acts or
decisions, 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. This bill, therefore, is consistent with past
practices of the Legislature.
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
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.
Analysis Prepared by : Thomas Clark / JUD. / (916) 319-2334
FN: 0004716