In Re Prather

I concur in the majority opinion, but write separately to clarify certain language in the opinion that may be cause for confusion. The basic principles set forth in the opinion, when considered in the context of well-established principles of due process and administrative law, lead to the conclusion that after a court has reversed the parole denial decision of the Board of Parole Hearings (the Board), the Board may not deny parole based solely on arguments and evidence that have been presented, or reasonably could have been presented, at the prior parole hearing.

Although, as the majority explains, the Board retains some discretion on remand after a judicial reversal of its parole denial decision, that discretion is limited. It is indeed a well-established principle of administrative law that an administrative agency vested with discretion to make a certain decision in the first instance may have its discretion limited on remand or even eliminated entirely by a reviewing court. (See Tripp v. Swoap (1976) 17 Cal.3d 671, 677 [ 131 Cal.Rptr. 789 , 552 P.2d 749 ] [no need to remand on the issue of awarding disability benefits where “there was no issue remaining on which the trial…

We granted review in these two cases to determine the proper scope of an order directed to the Board of Parole Hearings (the Board) when a reviewing court concludes that a decision to deny parole by the Board is not supported by “some evidence” that a prisoner remains a current threat to public safety. After the completion of briefing, we consolidated these matters for purposes of oral argument and decision.

In In re Lawrence (2008) 44 Cal.4th 1181 [ 82 Cal.Rptr.3d 169 , 190 P.3d 535 ] (Lawrence) and In re Shaputis (2008) 44 Cal.4th 1241 [ 82 Cal.Rptr.3d 213 , 190 P.3d 573 ] (Shaputis), we concluded that the standard governing judicial review of parole decisions made either by the Board or by the Governor is whether “some evidence” supports the determination that a prisoner remains currently dangerous. Lawrence and Shaputis each concerned the Governor’s reversal of action taken by the Board, and we did not address the question of the remedy appropriate in the event the reviewing court determines the Board abused its discretion. Subsequent to our decisions in these two cases, however, a conflict emerged among the appellate courts as to *244 precisely what action a…

We granted review in these two cases to determine the proper scope of an order directed to the Board of Parole Hearings (the Board) when a reviewing court concludes that a decision to deny parole by the Board is not supported by "some evidence" that a prisoner remains a current threat to public safety. After the completion of briefing, we consolidated these matters for purposes of oral argument and decision.

In In re Lawrence (2008) 44 Cal.4th 1181 [ 82 Cal.Rptr.3d 169 , 190 P.3d 535 ] ( Lawrence ) and In re Shaputis (2008) 44 Cal.4th 1241 [ 82 Cal.Rptr.3d 213 , 190 P.3d 573 ] ( Shaputis ), we concluded that the standard governing judicial review of parole decisions made either by the Board or by the Governor is whether "some evidence" supports the determination that a prisoner remains currently dangerous. Lawrence and Shaputis each concerned the Governor's reversal of action taken by the Board, and we did not address the question of the remedy appropriate in the event the reviewing court determines the Board abused its discretion. Subsequent to our decisions in these two cases, however, a conflict emerged among the appellate courts as to precisely what action a…