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The California Supreme Court could decide as early as today whether Gov. Gray Davis has the right to fight a ruling by a Los Angeles Superior Court judge who said the governor acted illegally when he refused to parole a convicted killer. The decision could set the stage for a separation of powers showdown, pitting Davis against the judiciary over the governor’s power to deny parole. At issue is the case of 34-year-old Robert Rosenkrantz, who 16 years ago killed a classmate who outed him as a homosexual. Though the Calabases, Calif., man has high-profile support from gay and religious groups and some top lawmakers, Davis denied his parole application in October. His decision, however, was overturned Thursday by Los Angeles County Superior Court Judge Paul Gutman. In his 25-page ruling, Gutman said Davis — by taking a stance which denies all convicted killers the possibility of parole — unconstitutionally violated the due process rights of inmates, which amounted to actual bias against an entire class of cases. The state supreme court will decide whether Davis should get the opportunity to argue before the Second District Court of Appeal that Gutman overstepped his bounds when he ruled that Rosenkrantz has been illegally denied release based on a Davis administration “no-parole policy” and whether such a ruling violated the separation of powers. If the court does not issue a stay in the habeas corpus ruling, the release of Rosenkrantz — who has become a symbol of Davis’ tough-on-crime politics — would mark a significant victory for those who criticize the governor’s unilateral approach to parole. Such a decision could also raise legal questions from the 48 other inmates who have been granted parole only to have it later denied by Davis. It could also severely undermine the powers granted to the governor by 1988′s Proposition 89, which gives the governor final decision-making authority to parole those convicted of murder. Gutman said although Davis is granted the power to reverse parole decisions, the law does not intend to “make his discretion absolute and unfettered thus permitting the governor to act arbitrarily and capriciously.” Citing Davis’ record and his public statements that extenuating circumstances should not be a factor in murder sentences, Gutman wrote in his ruling that Davis’ actions support a finding of fact that the governor’s policy is to deny parole to term-to-life convicts regardless of the circumstance. He said by demonstrating a prejudgment of all murder cases, Davis was depriving Rosenkrantz of his right to an impartial decision maker. He added that due process requires the governor to present some evidence to support his decision. “There is a total absence of any evidence in the record supporting the governor’s opinion that petitioner represents a ‘continued threat to the public,’ ” Gutman wrote. “ While the governor is entitled to express his opinion, the opinion itself must be factually supported and is not.” Since Gutman’s order, the Davis administration — led by Legal Affairs Secretary Barry Goode — has scrambled to keep Rosenkrantz in jail, while denying that a blanket policy exists. “We respectfully disagree with the Superior Court’s decision and are taking steps to file an immediate appeal to prevent Mr. Rosenkrantz’s release,” Goode said in a statement Friday. “The court’s statement today that Mr. Rosenkrantz ‘was denied an individualized determination of his suitability for parole’ and that the governor has a ‘no parole policy’ is, with all due respect, wrong.” Goode added that Gov. Davis — who has denied parole to all but one inmate convicted of murder and has vowed never to release such prisoners on his watch — gives each case careful scrutiny. “He determines each on its own merits and will continue to do so,” the former McCutchen, Doyle, Brown & Enersen partner said. In a 20-page brief to the court, Deputy Attorney General Robert Wilson told the justices that Gutman’s order raised serious constitutional issues and novel questions about the scope of judicial review of the merits of a gubernatorial parole decision. He further argued that such a decision by a superior court judge violates the separation of powers doctrine because it usurps the governor’s authority to review parole decisions. “For a prisoner serving an indeterminate term, the decision to parole him is committed entirely to the executive’s judgment and discretion,” Wilson wrote. “A life prisoner has no constitutional right even to parole release consideration, absent state provision for it.” Wilson adds that the superior court relied heavily on “the alleged existence of a ‘no parole policy,’ ” a theory he argued was wrongly put forward by a 1999 Los Angeles Times article. In opposition papers filed Tuesday, lawyers for Rosenkrantz said even if an appeal is granted, Rosenkrantz should be released from a San Luis Obispo prison until the case is decided. “The superior court’s order grants Rosenkrantz immediate release on parole,” his attorneys write. “His release on parole will not make this case moot, or otherwise affect this court’s jurisdiction. If the trial court’s judgment is reversed Rosenkrantz can be taken into custody to serve the remainder of his term.” Rosenkrantz’s case has been widely reported in the media, and his fight for freedom has been backed by lawmakers like state Senate President Pro Tem John Burton, state Sen. Richard Polanco, D-Los Angeles, and Assemblywoman Carole Migden, D-San Francisco. Rosenkrantz was convicted and sentenced to 17 years to life for the 1985 killing of 17-year-old Steven Redman who beat him up and told his parents he was gay. A week later Rosenkrantz confronted Redman demanding he retract the statements. When Redman laughed at him Rosenkrantz shot him 10 times with a semi-automatic Uzi assault weapon. He was convicted of second-degree murder. Rosenkrantz, who earned college degrees in prison while maintaining a spotless discipline record, was denied parole when he first went before the Board of Prison Terms in 1996. He later sued and in 1999 the Second District Court of Appeal granted his habeas petition and ordered the board to set a release date. The Court of Appeal also gave jurisdiction over the matter to the Superior Court. Davis blocked the board’s decision for parole last October. Vetoing his release, Davis said Rosenkrantz still posed a significant risk to society. “In assessing the risk of danger that Mr. Rosenkrantz poses, in my opinion these factors outweigh the arguments advanced for release, such as his motivation in killing Mr. Redman, his prison record or his parolee prospects,” Davis wrote in his order. Following Gutman’s decision Thursday, the California attorney general’s office asked the Second District Court of Appeal to stay Rosenkrantz’s release. When that request was denied, the Supreme Court late Friday night agreed to keep Rosenkrantz in prison — at least temporarily — until the high court could decide what to do with the matter. A spokeswoman for the court said that could be done as early as today or next Wednesday when the court conferences again. When asked how Rosenkrantz was holding up while awaiting the supreme court’s action, lawyer Donald Specter replied simply, “There have been a lot of close calls [in the past].”

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