Valdivia

Opinion by Judge HAWKINS; Partial Concurrence and Partial Dissent by Judge NOONAN.

These consolidated appeals stem from the November 2003 Valdivia Permanent Injunction (“the Injunction”) — based on a stipulation between Jerry Valdivia (“Valdivia”) and a class of similarly situated California parolees 1 (“Plaintiffs”), and Governor Arnold Schwarzenegger and the State of California (collectively “the State”)— prescribing procedures for parole revocation hearings in California. Here, the State appeals two post-injunction orders: (1) the March 25, 2008 order (“March 2008 order”) adopting the Injunction-related recommendations of the court-appointed Special Master regarding the use of hearsay evidence in parole revocation hearings; and (2) the March 26, 2009 order (“March 2009 order”) denying the State’s motion to modify the Injunction to conform to the voter promulgated statute, CaLPenal Code § 3044, formerly California Proposition 9 (“Proposition 9”).

*987 Bound by United States v. Comito, 177 F.3d 1166 (9th Cir.1999), we affirm the March 2008 order. Because the March 2009 order made no express determination that any aspect of the California parole revocation procedures, as…

concurring and dissenting:

I concur in Part II of the majority’s opinion. A federal court cannot disregard or encroach on state prerogatives unless it must do so to vindicate federal law or the Constitution. For this same reason, however, I dissent from the majority’s analysis in Part I. Hearsay evidence that falls within a firmly rooted hearsay exception does not offend any federal right held by parolees, and we therefore have no authority to impose “Comito balancing” when such evidence is proffered in parole revocation hearings conducted by a state. The majority’s contrary holding places the Ninth Circuit in conflict with the only other circuit to squarely consider this issue. See United States v. Williams, 443 F.3d 35, 45 (2d Cir.2006). I also dissent because I see no basis to require additional “Comito balancing” where the hearsay in question serves only to corroborate the reliability of proffered hearsay evidence and is not actually admitted against the parolee.

I.

In hearings on the revocation of parole, Morrissey instructs that the “minimum requirements of due process” include “the right to confront and cross-examine adverse witnesses.” 408 U.S. at 488-89, 92 S.Ct. 2593…