D.A. Wants Top Court to Review Rulings Overturning Ban on Sex Offenders in Parks

by jeremy on March 20, 2014

Cities and counties need to know whether they can act to protect children within their communities from the approximately 75,000 sex offenders living in the state
Deputy D.A.

The Orange County District Attorney’s office has petitioned the state Supreme Court to review recent decisions that outlawed the county’s ban on sex offenders in parks.

Orange County prosecutors petitioned the state Supreme Court to review two appellate court rulings striking down a ban on registered sex offenders in the county’s parks and in more than a dozen of its cities.

“The people of the state of California respectfully petition this court to grant review of an important issue affecting every city and county in California,” Deputy District Attorney Brian Fitzpatrick wrote in his petition to the high court. “Cities and counties need to know whether they can act to protect children within their communities from the approximately 75,000 sex offenders living in the state.”

Last month, a panel of Fourth District Court of Appeal justice struck down the county’s ordinance and one in Irvine. Since the Irvine ruling was published, it acts as precedent and makes all of the bans unconstitutional.

The state’s high court can either reject the petition, letting the appellate court rulings stand, or it can set up another round of appeals before the Supreme Court.

“I expected this would happen, but I’m hopeful the California Supreme Court will not take the case because I think the opinion from the appellate court is very well reasoned and very clear and easy to understand,” said Scott VanCamp, an attorney with the Orange County Public Defender’s Office, who argued the case before the appellate court.

The appellate panel ruled that the local ordinances conflicted with state law, which takes precedence.

“The Court of Appeal also makes it clear in its opinions that if the state legislature did not mean to preempt these local ordinances, it would be very easy for the legislature to pass a law saying that,” VanCamp said.

Fitzpatrick argues in his petition to the state’s high court that the law is not settled on the question of whether state law takes precedence over local ordinances in all cases.

Today’s petition came a day after the Costa Mesa City Council repealed its ordinance.

“If the appellate court says it’s unconstitutional and you can’t do it, then we don’t want to do it,” Mayor Jim Righeimer told City News Service. “If they appeal and win, we can always come back to it, but we don’t want that thing hanging out there if it’s unconstitutional. …  We don’t want it on our books.”

The city was also named in a civil lawsuit challenging the ordinance.

Orange County District Attorney Tony Rackauckas’ office does not need the county board’s permission to seek a supreme court review, but at least three supervisors on the Orange County board have said they would rather let the appellate court’s rulings stand than spend more money on the legal battle.

In the Irvine case, JeanPierre Cuong Nguyen’s success in getting his misdemeanor conviction dismissed by a lower court was affirmed. Nguyen was charged with violating Irvine’s ordinance because he went to one of the city’s parks in September 2012 without the written permission of Irvine’s police
chief.

The county’s ordinance also made it a misdemeanor for a registered sex offender to enter a county park without the county sheriff’s written permission. The appellate justices’ ruling in that case stemmed from a visit by Hugo Godinez, a registered sex offender with Costa Mesa police, to Mile Square Regional Park in Fountain Valley on May 5, 2011, during a Cinco de Mayo
celebration.

Godinez was found guilty, but a panel of Orange County Superior Court judges, who handle appeals in misdemeanor cases overturned his conviction last April and sent the case to the Fourth District Court of Appeal for further review.

Ordinances banning registered sex offenders from parks were on the books in 15 Orange County cities. Most of them banned registered sex offenders, except in Irvine and Fountain Valley, which target those convicted of crimes
against children.

Lake Forest, Lancaster and Palmdale and El Dorado County repealed bans because of “legal uncertainty,” according to Fitzpatrick’s petition.

–City News Service 

Source: Patch

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