Comments on: Did Watchdog reporters’ sex offender story get stats wrong?

By: Kelly Davis

Kelly Davis — Mon, 14 Dec 2009 22:08:33 +0000

Re: Ernest Galvan’s comments. I ran them by CDCR and received this response:

CDCR does not argue that any registered sex offender (RSO) who is not a parolee is subject to the Jessica’s Law residency restrictions. Our arguments were very narrowly and deliberately tailored to the parolee population, as we have no jurisdiction over non-parolees. Our argument has always been that if someone was incarcerated on or after Nov. 8, 2006, the day Jessica’s Law took effect, then the residency restrictions apply to them if they are a registered sex offender. If the Supreme Court goes with our specific argument, any RSO who was not incarcerated on or after Nov. 8, 2006, would not be subject to the Jessica’s Law residency restrictions. Ernie Galvan appears to have ignored the portion of our argument that states that the RSO must have been incarcerated on or after Nov. 8, 2006.

By: Justin McLachlan

Justin McLachlan — Wed, 09 Dec 2009 05:51:10 +0000

I was just trying to get Lorie to answer the question about what exactly she meant when she said “wasn’t binding.” State courts aren’t bound by federal district courts, but federal district courts — when applying state law — are bound by state supreme court decisions, or even state intermediate appellate decisions in the absence of evidence that the highest court would rule differently.

I don’t suspect that’s what she meant–I think she meant that no one currently has to listen to what the federal district court said or that the federal district court can’t bind state authorities–but we don’t know because she didn’t bother to come back and answer.

What it comes down to is that the Watchdog story simply gets the story wrong by failing to even note the district court ruling. They didn’t note it because it seriously interferes with the entire premise of their story, that “More than 70 percent of registered sex offenders in San Diego County are violating a state law by living too close to schools and parks.”

With all the uncertainty about the law, the federal court ruling and the current challenges before Supreme Court, how can any journalist(s) seriously make a bald-faced claim like that?

The answer is, ethically, they cannot. They wanted an attention grabbing story on a hot-button issue, facts be damned.

By: Ernest Galvan

Ernest Galvan — Sat, 05 Dec 2009 23:40:40 +0000

One other note. This aspect of federalism, that state courts have the last word on state law issues, works both ways. It means that state courts do not have to follow the United States Supreme Court’s view of a specific legal issue, so long as the state court can rule based on an independent source of state law. For example, last year, the Supreme Court of Alaska ruled that publication of sex offender status on the Meghan’s Law website is a form of punishment, and therefore, under the ex post facto clause of the Alaska constitution, cannot be applied to persons whose registerable offenses occurred before Alaska’s Meghan’s Law was passed. http://www.rbg-law.com/wp-content/uploads/doe-v-alaska-ala-2008-189-p3d-999.doc
It reached this result even though the United States Supreme Court had reached the opposite result under the federal ex post facto clause, and even though both the Alaska and federal ex post facto clauses use the same analysis to evaluate the punitive effect of a law. US Supreme Court case: http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=538&invol=84

By: Ernest Galvan

Ernest Galvan — Sat, 05 Dec 2009 23:19:04 +0000

Lori is right about what is at stake in the California Supreme Court case. When it comes to declaring the meaning of state law, yes, the state’s highest court trumps any federal court, including the Supreme Court of the United States. The 2007 federal district court decision made no ruling on federal law. The district court made a prediction on how the state’s highest court would interpret the temporal reach of Section 21 of Proposition 83, and based on that prediction, it dismissed all of the federal claims, since under the district court’s construction of Section 21, the 2,000 foot limits would not reach any of the plaintiffs who had filed the federal suit. The state Supreme Court can consider the reasoning of the district court, and can be persuaded by it, but it is not bound by the federal courts on a question of state law. That said, if the state’s highest court holds that Section 21 applies retroactively, then the state and federal constitutional issues involved in increasing punishment after the crime all come into play and have to be decided. The state’s brief in the California Supreme Court asks for the court to find that Section 21 is fully retroactive and applies to all registrants, regardless of how old their registration offenses are.

By: Justin

Justin — Fri, 04 Dec 2009 02:55:25 +0000

Lorie–

How is a federal court’s decision about a state law “not binding?” Are you saying the State Supreme Court trumps the federal district court?

By: Kelly Davis

Kelly Davis — Thu, 03 Dec 2009 00:12:37 +0000

Lorie,

What do you mean by “not binding”? A judge ruled that the law’s not retroactive. Judges clarify laws all the time.

By: LorieHearn

LorieHearn — Wed, 02 Dec 2009 23:32:39 +0000

Some courts have ruled on this law, including the federal district court in the article you chose to highlight. But those decisions are not binding. A key question before the California Supreme Court is who is subject to the residence restrictions of this law. The state Department of Corrections chose to restrict its enforcement to those released from prison after the law passed. However, its argument before the Supreme Court says that Jessica’s Law was intended to create “predator-free zones,” which would require all registered sex offenders to abide by the residency restrictions. Jessica’s Law simply states that registered sex offenders can’t live within 2,000 feet of a school or park. Local law enforcement agencies, which would be responsible for enforcing the law for the approximately 85 percent of registered sex offenders who aren’t on parole, are not enforcing the restrictions until they get clear direction from the state Supreme Court. – Lorie Hearn, Executive Editor, The Watchdog Institute at San Diego State University