Judge seeks more briefing on parole board’s authority to hold hearings

SANTA ANA -- In a case the state parole board says could infringe on its authority, an Orange County judge has postponed a murder convict's parole hearing scheduled for this week as she considers a victim family member's claim that the hearing was improperly scheduled.

Superior Court Judge Martha K. Gooding wants more information about the authority of an administrative law judge to move up parole hearings without the authorization of the state Board of Parole Hearings.

The judge requested further briefing and temporarily enjoined the hearing scheduled Wednesday for Lawrence Rayborn Cowell, who was sentenced in 1989 to 25 years to life for murder. The case will stay on hold until she rules on a motion for preliminary injunction from the Orange County district attorney's office and the mother of Cowell's victim.

At issue is whether a deputy commissioner can advance the date of parole hearing after an inmate has been issued a three-year denial, or if the decision must be made by board commissioners, "either by action of a panel of two commissioners or action by the full Board membership," according to a minute order by Gooding.

The case is unrelated to Proposition 57, the 2016 voter initiative that widened parole consideration for nonviolent offenders, but "it's a continuation of this movement to get people out of prison," said Orange County District Attorney Tony J. Rackauckas at a press conference last month.

"This is being done on a regular basis, on a lot of cases," Rackauckas said.

Gooding last week heard argument from Orange County Senior Deputy District Attorney Raymond S. Armstrong and Deputy Attorney General Gregory J. Marcot.

Attorney James P. Cloninger also appeared on behalf of co-petitioner Collene Thompson Campbell, whose son, Scott Campbell, was thrown by Cowell from an airplane into the Pacific Ocean in 1982. Cloninger is a retired Ventura County Superior Court judge and deputy district attorney in Ventura and Orange counties.

Campbell became a national victim's rights advocate after the murders of her son and, in a separate case, her brother and sister-in-law, and she and Cloninger worked together on criminal justice issues. She's also a longtime friend and political supporter of Rackauckas. Rackauckas v. State of California, 18-00985610 (Orange Super. Ct., filed April 11, 2018).

Their petition argues the state Department of Corrections and Rehabilitation as well as the Board of Parole Hearings violated Marsy's Law, a victim's rights act, by allowing an administrative staff member to advance Cowell's parole hearing.

Cowell was last denied parole in 2016. He was to be ineligible for another hearing until 2019, but an administrative staff member reviewed Cowell's case and advanced his hearing by a year.

According to the petition, after Marsy's Law was enacted in 2008, "the section which had empowered deputy commissioners to advance cases was not re-enacted."

"Despite the repeal, Defendant Board's staff continues to purport to exercise this power. This is unlawful," according to the petition. "There is nothing in the statute which supports the notion that administrative staff members may assume the powers of the Defendant Board in exercising the discretion granted under the code."

On behalf of the parole board, Marcot said in opposition that Campbell contends Marsy's Law enables her to challenge any administrative parole decision, which he said "reaches too far and incorrectly expands the actual rights created under Marsy's Law."

"Any order condoning such an action would necessarily interfere with the Board's inherent authority over parole matters, and would thus violate separation of powers principles," Marcot wrote.

At oral argument last week, Gooding questioned whether the motion sought to "fetter the discretion" of the parole board. She appeared skeptical of Armstrong and Cloninger's argument.

Armstrong said the staff member didn't only review the case, rather, she "purported to exercise the discretion commanded to the board -- not the staff -- to make the decision."

Gooding's request for further briefing lists seven issues to address, all focused on staff authority to advance hearings.