California Supreme Court agrees to review governor’s parole powers

By David Kravets The Associated Press
Thursday May 02, 2002

SAN FRANCISCO — At the Davis administration’s urging, the California Supreme Court said Wednesday it would review whether the governor has absolute power to overturn the Board of Prison Terms’ decision to parole convicted murderers. 

The high court, at its weekly private meeting here, agreed to consider the cases involving two convicted murderers whose parole from prison has been ensnared in a legal limbo that has kept them behind bars. 

The dispute is over Davis’ vetoes of the prison board’s release of Los Angeles County killers Robert Rosenkrantz and Mark Smith. Lower courts overturned Davis’ veto and ordered them freed earlier this year. 

The Supreme Court, however, halted their release. The court now will decide the outcome of a constitutional struggle between the parole powers the electorate granted California’s chief executive office in 1988 and the judiciary’s ability to undo those powers. 

The cases — dealing with politically charged questions of when killers have paid their debt to society and should be freed — have attracted widespread attention among the law enforcement community. 

The Los Angeles County District Attorney’s office, the California Sheriff’s Association and the California Police Chiefs Association urged the justices to side with Davis’ veto powers. 

Davis himself said he was pleased the court would review the issue. 

“By hearing it, the court will examine important constitutional issues regarding the governor’s ability to protect the people of California from murderers who would otherwise be released on parole,” Davis said. 

Defense attorneys and at least one lower court have said Davis has an illegal blanket policy against paroling convicted murderers. Of the 83 homicide cases the parole board recommended for release, Davis vetoed 81 of them. 

The two cases the chief executive did not override were women Davis believed may have suffered from battered women syndrome. 

“It’s not that surprising the Supreme Court would want to decide whether the judiciary can review the governor’s parole decisions because there are two branches of government that are in conflict here,” said Rosenkrantz’s attorney, Donald Specter. 

In January, a state appeals court ruled that Davis does not hold absolute authority to overturn a Board of Prison Terms’ parole decision. That ruling was viewed as a constitutional check on Proposition 89, which voters approved in 1988 granting the governor veto powers over the board’s decisions. 

The Davis administration claimed the governor had the absolute ability to reverse the board as he saw fit under Proposition 89. 

But in a 2-1 decision, the appellate panel had ruled the governor was wrong to assume that position in denying Rosenkrantz parole. 

“The flaw in the governor’s argument ... is the assumption that, in adopting Proposition 89, the voters elevated the governor’s authority to review parole decisions to an absolute and unreviewable height,” Justice Miriam A. Vogel wrote. “There is no support for the governor’s assumption.” 

Rosenkrantz, 33, is serving 17 years to life for the 1985 slaying of his boyhood friend, Steven Redman. The 17-year-old boy was shot 10 times after revealing Rosenkrantz’ homosexuality. Last year, after lengthy litigation, the Board of Prison Terms said Rosenkrantz was suitable for release. 

Davis vetoed the move, reasoning that Rosenkrantz “brutally murdered the victim” and that the crime “demonstrates his dangerous potential for violence.” 

But the appeals court said Davis’ reasoning was “unsupported by any evidence.” 

In the Smith case the Supreme Court agreed to review Wednesday, Smith was sentenced to 16 years to life for the 1985 murder of Rick Diamonon, who was shot and drowned in a creek near Topanga Canyon. The prison board found Smith — who has AIDS — suitable for release. 

Davis vetoed and a judge in March ordered him freed. 

The court did not indicate when it would hear the case. 

The cases are In re Robert Rosenkrantz, S104701 and Davis v. Smith, S105520.