Jurists Vote to Overturn Davis’ Veto of Parole

A state appeals court ruled Friday that Gov. Gray Davis does not have absolute power to overturn a parole recommendation made by the state Board of Prison Terms.

The court held 2 to 1 that Davis exceeded his authority in rejecting the board’s recommendation to release Robert Rosenkrantz, who has been imprisoned 15 years for second-degree murder.

Davis’ attorneys had contended that under Proposition 89, passed by California voters in 1988, the governor had veto power over board decisions.

“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 of the 2nd District Court of Appeal wrote for the majority. “There is no support for the governor’s assumption.”

The majority upheld a June ruling by Van Nuys Superior Court Judge Paul Gutman that Davis had unlawfully denied parole to Rosenkrantz, who is incarcerated at the California Men’s Colony in San Luis Obispo. Gutman said the governor had shown no evidence that Rosenkrantz represents a continuing threat to society, and ordered him freed immediately.

Rosenkrantz’s release, however, was stayed by the California Supreme Court pending appeal. On Friday, his attorneys said they expect the stay to remain in effect while the governor’s lawyers appeal to the state high court.

“It’s a tremendous victory for Mr. Rosenkrantz and a minor miracle for prisoner litigation,” said Donald Specter, director of the Prison Law Office in San Rafael. “You have a prisoner suing the governor on a parole matter, a very difficult case. . . . The court completely and utterly rejected the governor’s assertion that he is a law unto himself in this area.”

Specter said the decision means that more than 40 other inmates whom Davis refused to parole, despite a favorable recommendations from the state Board of Prison Terms, can challenge those decisions in court.

Robert D. Wilson, a deputy attorney general who represented the state, said that he was disappointed with the ruling and that he would seek a review from the California Supreme Court.

“I think the majority’s opinion does what we have been arguing against all along: It denies the governor his constitutional authority to decide whether a convicted murderer is safe to be released back into the community.”

Rosenkrantz, 34, was convicted in the 1985 killing of schoolmate Steven Redman, who exposed him as a homosexual on graduation night. Fearful that his father would disown him after learning of his sexual orientation, Rosenkrantz confronted Redman, demanding that he retract his statement. When Redman refused, Rosenkrantz shot him 10 times with an Uzi submachine gun outside Redman’s Malibu residence.

Sentenced to 17 years, Rosenkrantz has maintained a spotless disciplinary record in prison, while earning a college degree and tutoring other inmates. Prison psychiatrists have said there is a low risk that he will commit other crimes if released.

But in October 2000, Davis spurned parole, saying Rosenkrantz still poses “a significant risk of danger to society.”

That decision has been cited by Davis’ critics as the prime example of what they contend is an unjust, inhumane parole policy.

Shortly after he became governor in 1999, Davis said he would take a rigid position when considering parole applications from murderers.

“If you take someone else’s life, forget it,” he said in a 1999 interview with The Times.

Davis remained implacable Friday. “Mr. Rosenkrantz committed a heinous act, pumping 10 rounds from an Uzi into his victim at close range--the last three while he was lying helplessly on the ground,” the governor said in a statement released from his Sacramento office.

Since Davis has been in office, the Board of Prison Terms has denied about 99% of the 4,800 parole applications it has received. It has recommended that 48 inmates be granted parole and Davis has rejected all but one of those recommendations.

Gutman ruled last June that in effect Davis had a no-parole policy for murderers and that the application of the policy violated Rosenkrantz’s due process rights.

That conclusion was challenged by the California attorney general’s office, representing Davis on appeal.

On Friday, only Justice Reuben A. Ortega sided with the governor. “The record fails to support a finding that the governor has a no-parole policy for murderers that deprived Rosenkrantz of due process,” Ortega wrote in dissent.

In the majority opinion, Vogel, joined by Justice Robert M. Mallano, said it was not necessary to reach a decision on whether Davis has a no-parole policy. However, Vogel wrote a separate opinion in response to Ortega’s dissent and said the record was clear that Davis does have a no-parole policy.

“Rosenkrantz’s due process rights include the right to ‘individualized treatment’ and ‘due consideration’ of all relevant factors, and the governor’s decision cannot stand if it was made without due regard to the appropriate post-conviction, as well as pre-conviction, factors,” Vogel wrote.

He said Davis had no evidence to support his conclusions that Rosenkrantz did not commit the murder “under stress significant enough to offset the serious nature of the crime.” Davis also said Rosenkrantz continues to lie about aspects of the crime and his excellent prison record “is no more than that which the state . . . expects of all prisoners.”

Those conclusions, Vogel wrote, are an affront not only to Rosenkrantz, whose progress in prison was “undisputedly exemplary, but also to the Department of Corrections,” which provided the programs in which Rosenkrantz participated. Vogel said “the governor’s readiness to make a decision so at odds with the record supports Rosenkrantz’s claim and the Superior Court’s finding that the governor does in fact have a no-parole policy.”

Rosenkrantz’s other lawyer, Rowan Klein of Los Angeles, said, “I’m gratified for the victory. It demonstrates that even the governor is not above the law.”

Times staff writer Miguel Bustillo contributed to this report.