ORDINANCES RESTRICTING SEX OFFENDERS FROM ENTERING PARKS ARE PREEMPTED BY STATE LAW
On January 10, 2014, the 4th District Court of Appeal, Division Three, ruledunanimously, in an unpublished opinion, People v. Godinez, that California’s “statutory scheme imposing restrictions on a sex offender’s daily life fully occupies the field and therefore preempts [Orange] county’s efforts to restrict sex offenders from visiting county parks.”
In addition, also on January 10, 2014, the 4th District Court of Appeal, also in Division Three, ruled unanimously, in a published decision, People v. Nguyen, that the City of Irvine’s ordinance, section 4-14-803, which imposes similar restrictions, is also preempted by state law.
Section 4-14-803 states, “Any person who is required to register pursuant to California Penal Code section 290 et seq., where such registration is required by reason of an offense for which the person was convicted and in which a minor was the victim, and who enters upon or into any City park and recreational facility where children regularly gather without written permission from the Director of Public Safety/Chief of Police or his designee is guilty of a misdemeanor.”
The Godinez Court held that “state law preempts the ordinance’s requirement that sex offenders obtain the county sheriff’s written permission before entering a county park. This regulation is simply a de facto registration requirement. But state law has long occupied the area of sex offender registration to the exclusion of local regulation and the county ordinance’s written permission requirement amounts to an additional registration requirement imposed on sex offenders who wish to enter county parks.”
The Nguyen Court held that “state law preempted prosecution under the local ordinance because the Legislature has enacted a comprehensive statutory scheme regulating the daily life of sex offenders to reduce the risk of an offender committing a new offense. [W]e conclude the state statutory scheme imposing restrictions on a sex offender’s daily life fully occupies the field and therefore preempts the city’s efforts to restrict sex offenders from visiting city parks and recreational facilities.”
Current state law prohibits sex offenders from living within 2,000 feet of a park or school, and requires written permission for them to enter a school, but does not ban them from visiting parks unless they are on parole for crimes against children under 14.
Facts
In 2010, Hugo Godinez was convicted of misdemeanor sexual battery, placed on probation, and required to register as a sex offender pursuant to Penal Code section 290. In 2011, while still on probation, he went to Mile Square Regional Park, in Orange County, to attend a company picnic his employer organized. After discovering that he went to the park, the Orange County District Attorney charged him with violating section 3-18-3 of the Codified Ordinances of the County of Orange (Section 3-18-3).
Section 3-18-3 states, “Any person required to register pursuant to California Penal Code section 290, et seq. who enters into or upon any Orange County Park where children regularly gather without written permission from theOrange County Sheriff or Sheriff’s designee is guilty of a misdemeanor.”
“Godinez demurred to the complaint, arguing Section 3-18-3 was invalid because (1) California’s comprehensive statutory scheme governing the registration and regulation of sex offenders occupied the field and therefore preempted local ordinances imposing similar requirements; (2) the ordinance was unconstitutionally vague; and (3) the ordinance infringed on Godinez’s fundamental constitutional rights to intrastate travel, free speech, and freedom of association and assembly. The trial court overruled the demurrer.”
Following a non-jury trial, he was convicted and appealed to the Superior Court Appellate Division, raising the same issues and the “Appellate Division reversed the trial court’s judgment because it found the ‘extensive state legislation restrict[ing] and regulat[ing] numerous areas of the lives of registered sex offenders’ preempted Section 3-18-3.”
On its own motion, the Appellate Division certified the case for review by the Court of Appeal in order “to settle the ‘important question’ of whether cities and counties may enact their own local ordinances prohibiting registered sex offenders from being present in or near locations including parks and other places ‘where children regularly gather,’ or whether such local ordinances are barred by the enactment of state statutes. . . ”
Very similar facts exist in the Nguyen case: “Nguyen is a sex offender required to register with local law enforcement under Penal Code section 290. In September 2012, he entered a public park in the City of Irvine without first obtaining written permission from the Irvine Police Chief. After learning of Nguyen’s park visit, the District Attorney filed a misdemeanor complaint charging him with violating section 4-14-803 of the City of Irvine Municipal Code. . . .”
The legal process in Nguyen was, virtually, identical to that in Godinez, and ultimately the case wound up in the Court of Appeal.
Discussion
Both decisions are based on the same legal theories and the language is again, virtually, identical in both matters. As such, we will discuss the Court’s analysis in the Godinez case which applies equally to the decision in Nguyen.
The Court of Appeal noted that “Under article XI, section 7 of the California Constitution, ‘[a] county or city may make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general [state] laws.’ If otherwise valid local legislation conflicts with state law, it is preempted by such law and is void. A conflict exists if the local legislation ‘duplicates, contradicts, or enters an area fully occupied by general law, either expressly or by legislative implication.’” The challenge by Godinez was that “state law impliedly preempts Section 3-18-3 by fully occupying the field it regulates.” (Emphasis in original.)
The Court explained that “the Legislature’s ‘intent with regard to occupying the field to the exclusion of all local regulation is not to be measured alone by the language used but by the whole purpose and scope of the legislativescheme.’”
Furthermore, “if the subject matter or field of the legislation has been fully occupied by the state, there is no room for supplementary or complementary local legislation, even if the subject were otherwise one properly characterized as a ‘municipal affair.’”
As an example of where a state statute did not preempt a field, the Court referred to “the Supreme Court’s recent decision in City of Riverside v. Inland Empire Patients Health & Wellness Center, Inc., (2013) 56 Cal.4th 729, [which] concluded state law did not preempt a local land use ordinance banning medical marijuana dispensaries because state law did not establish a comprehensive scheme regulating medical marijuana. The state law on the subject merely ‘adopted limited exceptions to the sanctions of this state’s criminal and nuisance laws in cases where marijuana is possessed, cultivated, distributed, and transported for medical purposes.’”
The Riverside Court found that “the Supreme Court concluded the narrow and limited nature of the state medical marijuana law did not provide a clear indication the Legislature intended to preempt local land use regulation affecting medical marijuana dispensaries. Nothing in the state law required local governments to accommodate medical marijuana.”
[JONES & MAYER, as general counsel to CPCA, CSSA, and CPOA, submitted an amicus curiae brief in the Riverside case, supporting the City’s argument that state law did not preempt the field and that local jurisdictions could ban dispensaries through the use of their zoning laws.]
In examining the Godinez situation, however, the Court stated that the state did preempt the field and “defining the relevant state law field as the District Attorney suggests – the regulation of where sex offenders can go – would require us to ignore other state laws designed to achieve the same purpose as Section 3-18-3: protecting children from registered sex offenders by restricting access to locations where children regularly gather.”
In addition, “the Legislature has not only adopted numerous statutes placing geographical restrictions on sex offenders, but has also adopted other regulations governing other aspects of an offender’s life to protect the public from future harm. We must consider all of those statutes together to determine whether they establish a ‘patterned approach’ to regulating a sex offender’s daily life and manifest a legislative intent to fully occupy the field to the exclusion of all local regulation.”
In referring to those statutes, the Court found that “the Legislature expressly declared its intent to establish a comprehensive and standardized system for regulating sex offenders when it passed the Sex Offender Punishment, Control, and Containment Act of 2006 (Stats. 2006, ch. 337). That act contains more than 60 sections and made numerous changes to the statutes regulating sex offenders . . . .”
The Court identified the Legislative intent, by language in the statute: “In enacting the Sex Offender Punishment, Control, and Containment Act of 2006, the Legislature hereby creates a standardized, statewide system to identify, assess, monitor and contain known sex offenders for the purpose of reducing the risk of recidivism posed by these offenders, thereby protecting victims and potential victims from future harm.” (Emphasis in original.)
After analyzing the state law, the Court held that “considering the Legislature’s declared intent coupled with the scope and nature of the restrictions the foregoing Penal Code sections imposed, we conclude the Legislature established a complete system for regulating a sex offender’s daily life and manifested a legislative intent to fully occupy the field to the exclusion of Section 3-18-3 and other local regulations. Considered as a whole, these statutes regulate much more than the geographic restrictions imposed on a sex offender.”
In a footnote, the Court recognizes that a local ordinance may provide additional protections to the community, however, “we base our conclusion on the legal standards governing state law preemption of local ordinances. We do not, and indeed may not, consider whether it is more prudent from a policy perspective to allow local government to supplement state legislation regulating sex offenders.”
The Court addresses, in detail, all of the arguments presented by the Orange County District Attorney, as well as those presented in an amicus curiae brief, in their effort to refute or distinguish the Court’s legal analysis andconclusions.
However, the Court ultimately finds that “sex offender registration is an area the state has traditionally regulated since 1947, when the Legislature placed in the Penal Code a ‘comprehensive scheme’ regarding sex offender registration. Other than Section 3-18-3 and similar ordinances several Orange County cities recently adopted, the District Attorney fails to cite any examples of local governments legislating in the sex offender registration domain.”
HOW THIS AFFECTS YOUR AGENCY
The obvious impact is that a law enforcement agency can no longer rely upon this regulatory statute. Although a 290 registrant can be precluded from residing near a park, he/she cannot be precluded from entering the park based on Section 3-18-3.
The Orange County district attorney’s office (OCDA) revealed Monday, 1/13/14, that it will take the case to the California Supreme Court. However, until and unless the Supreme Court accepts the case for review, the Nguyendecision, which is a published decision, is binding law.
Securing the advice and guidance from your agency’s legal advisor is obviously of importance when applying new case law decisions.
As always, if you wish to discuss these cases in greater detail, please feel free to contact me or Chris Neumeyer at (714) 446 – 1400 or via email atmjm@jones-mayer.com or cfn@jones-mayer.com respectively.
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