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Sex offender clause is debated

A judge orders attorneys for the state to file briefs justifying what he says is a new interpretation of the reach of Prop. 83.

November 28, 2006|Jenifer Warren | Times Staff Writer

SAN FRANCISCO — The confusion shrouding California's sweeping new sex offender law intensified Monday, when state lawyers abruptly changed position and said the measure bars all sex offenders from moving within 2,000 feet of a park or school.

The shift by representatives of Atty. Gen. Bill Lockyer clearly startled a federal judge, who noted that the state had filed papers less than two weeks ago saying the law did not cover those who had served their time and were off parole.

Saying he felt "ambushed," U.S. District Judge Jeffrey White set a hearing for Feb. 23 and ordered state attorneys -- who by then will be working for Lockyer's successor, Jerry Brown -- to submit briefs justifying their new position.

White also extended an order temporarily barring law enforcement officials from evicting sex offenders now living within 2,000 feet of a school or park.

Passed by 70% of the state's voters Nov. 7, Proposition 83 increases penalties and parole terms for many sex crimes and requires felony sex offenders to wear satellite-tracking devices for life.

It also subjects former offenders to dramatically expanded residency restrictions. Previously, only child molesters on parole were barred from living near schools. Proposition 83 extends that prohibition to all sex offenders, even after they complete parole and regardless of their victims' age.

Monday's events stem from a lawsuit filed one day after voters passed the initiative, dubbed Jessica's Law by proponents.

The case involves a registered sex offender in the Bay Area -- identified only as "John Doe" to protect his safety -- who argues that Proposition 83 is unconstitutional because it would impose a new penalty on him more than 15 years after he was punished for his crime.

In addition, John Doe says the initiative's 2,000-foot limit would effectively banish him and his wife from the community where he has lived for more than 20 years and, according to maps prepared by the Legislature, would make most urban areas of California off limits to him.

Saying it was likely that John Doe would prevail in his constitutional challenge, another federal judge issued a temporary restraining order protecting him from eviction. In response, Lockyer's office argued that the suit should be dismissed because the initiative was meant to apply only to future offenders, not to ex-convicts who had completed parole.

Arriving at the courthouse Monday, John Doe's attorney, Dennis Riordan, anticipated the signing of a settlement agreement effectively dismissing the case. Instead, he was told by deputy state Atty. Gen. Teri Block that his client would be subject to the law should he ever decide to move.

Block said that conclusion did not represent a change in position by the attorney general but merely an additional analysis of the initiative that was not required by the plaintiff's lawsuit.

Elaborating later, a spokesman for Lockyer, Nathan Barankin, said, "There is no change in our interpretation; we are just responding to new circumstances not originally presented by the plaintiff."

Judge White saw it differently, declaring that the state had taken "a completely new and different position than set forth in their papers." He ordered the state to file written arguments beginning in January, after Brown takes over as attorney general.

At least one important figure in the debate over Proposition 83 -- its author, state Sen. George Runner -- said he disagreed with the attorney general's updated interpretation.

Runner, a Republican from Lancaster, said he "was a bit surprised by this different position" and that it "adds a bit more ambiguity to the situation."

Runner has long maintained that he did not mean the law to uproot sex offenders already settled in society. He specified Monday that he wanted it to apply only to those coming out of prison and onto parole after the initiative's passage.

A spokesman for Gov. Arnold Schwarzenegger, an ardent supporter of Proposition 83, said the governor shared that position.

A second lawyer for John Doe said the conflicting views on how the law should be applied illustrated its basic problems.

"This just goes to show how poorly drafted the initiative was," said attorney Michael Romano. "It's a bad law, and it was all about politics from the beginning."

Among those awaiting a clear reading on the initiative are the estimated 95,000 sex offenders in California, some in prison but most scattered around the state. One of them, Michael McAssey of Davis, said that if the attorney general's view holds sway, it would create considerable hardship for many ex-convicts.

"What if someone is elderly and they need to move to a nursing facility that is inside the 2,000-foot limit?" asked McAssey, a graduate student at UC Davis who was convicted in 1992 of lewd and lascivious conduct with two girls. "The bottom line is that this is just more retaliation against people who have already paid for their crimes."

Two other lawsuits also challenge the constitutionality of Proposition 83.

A Sacramento parolee has won a temporary restraining order barring officials from evicting him at least until his case is heard in federal court.

And in Los Angeles, an ex-convict living in a Ventura County motel has filed a suit saying that the initiative's requirement that he be monitored for life by a satellite-tracking device violates his privacy rights.


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