Doe v. Schwarzenegger

• Court: U.S. District Court — Eastern District of California
• Writing for the Court: Karlton
• Citation: Doe v. Schwarzenegger, 476 F.Supp.2d 1178 (E.D. Cal. 2007)
• Decision Date: 09 February 2007
• Docket Number: No. CIV. S-06-2521 LKK/GGH.,CIV. S-06-2521 LKK/GGH.
• Parties: John DOE, Plaintiff, v. Arnold SCHWARZENEGGER, Governor of California, in his official capacity, et al, Defendants.

Page 1178

476 F.Supp.2d 1178

John DOE, Plaintiff, v. Arnold SCHWARZENEGGER, Governor of California, in his official capacity, et al, Defendants.

No. CIV. S-06-2521 LKK/GGH.

United States District Court, E.D. California.

February 9, 2007.

Scott Shay Wippert, Law Office of Scott Wippert, Sacramento, CA, for Plaintiff.

Kenneth C. Mennemeier, Jr., Mennemeier Glassman and Stroud, Geoffrey Lloyd Graybill, California Attorney General, Albert Calvin Locher, Craig Edward Deutsch, Sacramento, CA, for Defendants.

ORDER

KARLTON, Senior District Judge.

Plaintiffs challenge the constitutionality of the Sexual Predator Punishment and Control Act, which imposes residency restrictions and GPS monitoring on registered sex offenders. Pending before the court is plaintiffs' motion for a preliminary injunction. The court resolves the matter on the parties' papers and after oral argument. For the reasons set forth below, the court finds that the law has only prospective effect and is therefore inapplicable to plaintiffs.¹

I. Background

Plaintiffs challenge the constitutionality of the Sexual Predator Punishment and Control Act: Jessica's Law ("SPPCA"), which California voters enacted into law on November 7, 2006. The SPPCA prohibits registered sex offenders from residing within 2,000 feet of any public or private school, or park where children regularly gather, Cal.Penal Code § 3003.5, and requires them to be monitored by a global positioning system ("GPS") for parole, Cal.Penal Code § 3000.07, and for life, Cal.Penal Code § 3004. Previously, on November 17, 2006, the court granted a temporary restraining order with respect to the residency restriction but denied relief as to the GPS requirements. Pending before the court is plaintiffs' motion for a preliminary injunction.

A. John Doe I

Plaintiffs are registered sex offenders residing within California. John Doe I pled no contest over twenty years ago to several felonies requiring him to register as a sex offender under Cal.Penal Code § 290. Amended Decl. of John Doe I ("Doe I Decl.") ¶ 2. Pursuant to the plea agreement, plaintiff was sentenced to a term in state prison and was required to register as a sex offender for his lifetime. Id. 3-4. Thereafter, plaintiff pled no contest for his failure to maintain registration requirements and is currently on parole for that offense. Id. ¶¶ 8-9. In March 2006, his parole conditions were amended by agreement to include GPS monitoring for the remainder of his parole. Id. ¶ 11. The GPS monitoring was conducted pursuant to (then) Cal.Penal Code § 3004.

As part of plaintiff's parole, he agreed "not to reside near any parks, schools, or other areas where children congregate." Id. ¶ 9. His current location, where plaintiff has resided for the last nine months, has been approved by the California Department of Corrections and Rehabilitation. Id. ¶ 10. However, it is within 2,000 feet of several parks where children regularly gather. Id. ¶ 14. Plaintiff has also stated that he is currently seeking to relocate to another residence in the near future that is within 2,000 feet of a school or park where children regularly gather. Id. ¶ 18.

In October 2006, prior to the passage of the SPPCA, plaintiff received a letter from parole authorities informing him of the potential impact of the law. Id. ¶ 12. It stated that the event it is determined your residence is within 2000 feet of any public or private school, or a park where children regularly congregate, you will be required to move to a new residence to be in compliance with the changes in the law." Mot. for Preliminary Injunction, Ex. C.

B. John Doe II

John Doe II pled no contest to several felony offenses requiring him to register as a sex offender over fifteen years ago. Decl. of John Doe II ("Doe II Decl.") ¶ 2. Pursuant to the plea agreement, plaintiff served a sentence and thereafter completed his parole. Id. ¶¶ 4-5. He is currently in the process of obtaining a Ph.D. from a university in California. Id. ¶ 10. Plaintiff resides within 2,000 feet of a school or park where children regularly gather and has lived at this location for sixteen months. Id. ¶ 6. Furthermore, plaintiff has stated his intention of moving in the near future to another residence that is also within 2,000 feet of a school or park where children regularly gather. Id. ¶ 14.

C. John Doe III

John Doe III was convicted in 1974 of a felony offense requiring him to register as a sex offender. First Amended Compl. ("FAC") ¶ 49. As a result, he served a three year prison term. Id. ¶ 4. Currently, he is on probation for failing to maintain registration requirements. Id. Plaintiff has been residing for six months at a location within 2,000 feet of a park where children regularly gather. Decl. of John Doe III ("Doe III Decl.") ¶ 6. He has also stated his intention of relocating to another residence in the near future that is within 2,000 feet of a school or park where children regularly gather. Id. ¶ 17.

II. Standard

A motion for preliminary injunction requires that the moving party show either (1) a combination of probable success on the merits and the possibility of irreparable injury, or (2) that serious questions are raised and the balance of hardships tips sharply in favor of the moving party. Southwest Voter Registration Educ. Project v. Shelley, 344 F.3d 914, 917 (9th Cir.2003); Dr. Seuss Enters. v. Penguin Books USA, Inc., 109 F.3d 1394, 1397 n. 1 (9th Cir.1997). These standards "are not separate tests but the outer reaches of a single continuum." Int'l Jensen, Inc. v. Metrosound U.S.A., 4 F.3d 819, 822 (9th Cir.1993) (citation omitted). As the probability of success on the merits decreases, the degree of irreparable harm must increase. Big Country Foods, Inc. v. Bd. of Educ. of the Anchorage Sch. Dist., 868 F.2d 1085, 1088 (9th Cir.1989). Under either formulation, the court must find that there is some significant threat of irreparable injury, regardless of the magnitude of that injury. Id.

III. Analysis

Plaintiffs request a preliminary injunction to enjoin defendants from enforcing the provisions of the SPPCA imposing residency restrictions and requiring GPS monitoring. Cal.Penal Code §§ 3003.5, 3004, & 3000.07. As explained below, the court finds that the SPPCA, properly construed has only prospective effect and is therefore inapplicable to plaintiffs.

As an irreducible minimum, Article III of the U.S. Constitution requires plaintiffs to have suffered actual or threatened injury that is caused by a defendant's putatively illegal conduct and that can be redressed by a favorable court ruling. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). While plaintiffs may credibly fear that the SPPCA will be enforced against them in light of its language and the letter that John Doe I received from parole authorities,² the court finds that the law does not apply to individuals who were convicted and who were paroled, given probation, or released from incarceration prior to its effective date.³

The court notes at the outset that it is obligated to adopt the interpretation of the law that best avoids constitutional problems. See I.N.S. v. St. Cyr, 533 U.S. 289, 299-300, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001) ("[I]f an otherwise acceptable construction of a statute would raise serious constitutional problems, and where an alternative interpretation of the statute is `fairly possible,' ... we are obligated to construe the statute to avoid such problems."); see also Planned Parenthood of Idaho, Inc. v. Wasden, 376 F.3d 908, 925 (9th Cir.2004). California courts follow the same rule. See Young v. Haines, 41 Cal.3d 883, 898, 226 Cal.Rptr. 547, 718 P.2d 909 (1986). Here, reading the SPPCA retroactively would raise serious ex post facto concerns, and the court is obligated to avoid doing so if it can reasonably construe the statute prospectively.⁴

The SPPCA does not expressly address the issue of retroactivity, but it is well-established in California that statutes operate prospectively unless there is clear evidence of intent to the contrary. See Evangelatos v. Superior Court of Los Angeles County, 44 Cal.3d 1188, 1207, 246 Cal.Rptr. 629, 753 P.2d 585 (1988) ("[S]tatutes are not to be given a retrospective operation unless it is clearly made to appear that such was the legislative intent.") (internal quotation marks and citation omitted). This principle has been characterized as a "time-honored principle," id. at 1208, 246 Cal.Rptr. 629, 753 P.2d 585, that is "familiar to every law student," id. at 1207, 246 Cal.Rptr. 629, 753 P.2d 585 (quoting United States v. Sec. Indus. Bank, 459 U.S. 70, 79, 103 S.Ct. 407, 74 L.Ed.2d 235 (1982) (Rehnquist, J.)).

Indeed, the principle is expressly codified in the California Penal Code: "No part of [this code] is retroactive, unless expressly so declared." Cal.Penal Code § 3; see also Cal. Civ.Code § 3. To infer retroactivity is no small feat. "[A] statute will not be applied retroactively unless it is very clear from extrinsic sources that the Legislature or the voters must have intended a retroactive application." Evangelatos, 44 Cal.3d at 1208, 246 Cal. Rptr. 629, 753 P.2d 585. Formulated differently, a law may be given retroactive effect only by "the unequivocal and inflexible import of the terms, and the manifest intention of the legislature." Id. at 1207, 246 Cal.Rptr. 629, 753 P.2d 585 (internal quotation marks and citations omitted).

Here, the SPPCA is silent on the issue of retroactivity, and it is not "very clear" from extrinsic sources that the intent of the voters was to make it retroactive. See Tapia v. Superior Court, 53 Cal.3d 282, 287, 279 Cal.Rptr. 592, 807 P.2d 434 (1991) (interpreting voter-approved proposition as operating only prospectively where proposition was silent on issue of retroactivity). To determine the intent of a voter-approved initiative, the plain meaning of the law is typically most instructive, ...