Judge grants preliminary injunction against parole board

In a move attorneys said could lead to similar challenges, a judge has stopped a parole hearing after determining the state Board of Parole Hearings didn't follow proper scheduling procedure.

The preliminary injunction issued by Orange County Superior Court Judge Martha K. Gooding prevents the board from holding a parole hearing for convicted murderer Lawrence Rayborn Cowell any earlier than Oct 25, 2019, which is three years after he was last denied parole.

A hearing had been advanced to May, but Gooding enjoined it while considering the injunction request.

Parole hearing experts said the unusual decision could have broad implications. Not only does the order allow for victims to challenge parole board decisions made by a single commissioner, it could allow for inmates to challenge such decisions, too, including a decision not to advance a hearing.

"If other courts respect this decision or follow this method, then anybody can challenge through this mandamus process a denial or decision not to advance," said Bruce A. Zucker of Ahrony, Graham, & Zucker LLP in Santa Monica. That could turn out to be "great news for inmates," he said.

Cowell was sentenced in 1989 to 25 years to life for murder. The Orange County district attorney's office sought the injunction based on Marsy's Law. It was joined by the victim's mother, Collene Thompson Campbell, who was represented by James P. Cloninger, an attorney and retired Ventura County Superior Court judge.

They argued the advanced hearing was unlawful because an administrative staff member scheduled it instead of the full board.

In opposition, Deputy Attorney General Gregory J. Marcot warned Gooding that an order condoning any challenges to administrative parole decisions would interfere "with the Board's inherent authority over parole matters, and would thus violate separation of powers principles."

During oral arguments in April, Gooding questioned whether she was being asked to fetter the board's discretion. But her final order, issued Thursday, concluded the board didn't follow procedure when it allowed a deputy commissioner, Nga Lam, to advance the hearing.

"There is no evidence before the court that Lam made her decision regarding Cowell 'in accordance with policies approved by the majority of the total membership of the board,' as the statute requires," according to the order. Rackauckas v. State of California, 18-00985610 (Orange Super. Ct., filed April 11, 2018).

Orange County District Attorney Tony J. Rackauckas said in a news release that the injunction "gives hope to victims and reminds them the Board of Parole Hearings is not the final authority when it comes to parole proceedings."

"There is a process in place in which victim's rights are constitutionally preserved and protected, even in death through the support of their loved ones, and today, the Parole Board was reminded of that process," Rackauckas said.

Cloninger said he hopes Gooding's order leads to similar challenges when other hearings are advanced because, "The Board's actions in these cases are an affront to decency and common sense."

"This practice should be challenged in every court in every county in the state and the Board should be forced to obey the law," Cloninger said in an email.

Kenneth L. Rosenfeld, a founder of the Rosenfeld Law Firm who is not involved in the case, said that while Gooding's decision isn't citable as authoritative case law, "it's certainly citable as protocol."

"These things always have a systemic effect when word in the community gets out about it," Rosenfeld said.

Zucker said the case is remarkable because parole board decisions typically are challenged through habeas corpus.

"But now that the DA in Orange County is starting to clear the way for mandamus review, that's going to be a much more involved process," Zucker said.

"They're rather stingy when it comes to protecting the rights of inmates, so for her to go to bat like this is important," Zucker said. But, he added, "for the DA in Orange County and the judge to intervene in this decision is extraordinary."