Hours after California voters approved a ballot measure authorizing a crackdown on sex offenders, a federal judge Wednesday blocked enforcement of a controversial provision limiting where ex-offenders may live.
The order by U.S. District Judge Susan Illston in San Francisco means that implementation of a key portion of Proposition 83, which captured 70% of the vote, will be on hold until its constitutionality is resolved by the courts. A hearing is scheduled later this month.
The initiative prohibits registered sex offenders from living within 2,000 feet of a school or park. In a lawsuit Wednesday, attorneys said that constitutes a new penalty imposed on ex-convicts years after they have been punished for their crime. The measure also is unconstitutional on due process grounds, the lawyers argue, because it would force offenders from their homes without notice.
The suit was filed on behalf of an anonymous plaintiff whose case was resolved long ago and who has lived in the same community for 20 years. The Bay Area man was allowed by the court to file the lawsuit as "John Doe" to protect his safety.
In granting the temporary restraining order, the judge said "John Doe" has been "a law-abiding and productive member of his community" since his conviction and would suffer "irreparable harm" if forced to comply with Proposition 83. His lawyers, Illston said, probably will prevail in challenging the initiative as unconstitutional.
"We're gratified that the court has found that there's a substantial likelihood that we'll prevail on our claims," attorney Michael Romano said.
The court's action drew a sharp reply from the office of Republican Gov. Arnold Schwarzenegger, a passionate supporter of the initiative dubbed Jessica's Law by proponents.
Schwarzenegger's legal affairs secretary, Andrea Lynn Hoch, said the administration would vigorously fight the lawsuit so "implementation of this vital measure can go forward to protect Californians against the lewd acts of convicted felons."
Sponsors of Proposition 83 were more sanguine. They said they never intended for the residency rule to be applied retroactively, to the 85,000 registered sex offenders already living in the community, though the initiative's language does not make that clear.
Meanwhile, some registered sex offenders expressed relief that, at least for now, they need not worry about moving.
Before the election, analysts said the law's residency limit would effectively prohibit felons from living in many California cities. And recently, the state Department of Corrections and Rehabilitation began sending notices to thousands of parolees, informing them that -- if a court determined the law should apply retroactively -- they might be required to move if their homes were within 2,000 feet of a school or park.
Jake Goldenflame of San Francisco said he was among thousands who faced "banishment" under the initiative. Still, he found little solace in Wednesday's court action, predicting that legal uncertainty would persist for years.
"This is going to flip flop in the courts for a long time, so it's premature to draw any conclusions," said Goldenflame, 69, who served a five-year prison term in the 1980s for molesting his daughter. "Meanwhile, the voters have said loudly and clearly that they don't want sex offenders living with them, so we're all dealing with that."
With the passage of Proposition 83, California becomes the 21st state to adopt a crackdown on sex offenders that includes strict limits on where they may live after prison.
California's statute, which experts say is the nation's toughest, also lengthens prison and parole terms for repeat and violent offenders and requires felons to undergo satellite monitoring for life, by wearing a tracking device on their ankle. Another provision makes more sexually violent predators eligible for indefinite commitments to state mental hospitals. These aspects of the statute have not been challenged.
State law already limits where some high-risk child molesters may live while on parole. But the new rules would extend that limit to all registered sex offenders -- including those with adult victims -- and the restriction would apply for life.
Jill Levenson, a professor and sex offender policy expert at Florida's Lynn University, said that in addition to the statewide laws, hundreds of towns, cities and counties have imposed similar residency restrictions. Under Proposition 83, local governments in California may adopt their own residency rules. Some have begun that process.
"These laws are popular because people assume sex offenders might be lurking in playgrounds, or watching children from their window, to gain access to victims,'' Levenson said. ''While that may be true in some cases, most molesters target children with whom they have a previous relationship, so residency restrictions really don't solve the problem of sexual abuse.''