General Comments April 2018

I am actually looking for the original briefs that were filed in the district courts in both Millard and Snyder. Any help people???????????

Oh yeah people, I have my first win.

They admit to subject matter jurisdiction…

Defendant concedes the Court has subject matter jurisdiction to resolve Plaintiff’s challenges to California statutes: (1) SORA (Penal Code § 290, et seq.); (2) Megan’s Law Internet Website (Penal Code § 290.46).

“Neither the motion to dismiss or the Magistrate Judge’s ruling applies to the Court’s
jurisdiction to resolve Plaintiff’s challenges to California statutes: the Sex Offender Registration
Act (SORA) or Megan’s Law.” (See page 1 at 18-20 Defendants Response to Plaintiff’s Objections to MFR).

Reading Gorsuch’s concurring Opinion from Sessions v. Dimaya (https://www.supremecourt.gov/opinions/17pdf/15-1498_1b8e.pdf or for truncated reading: https://reason.com/volokh/2018/04/17/crossover-sensation-neil-gorsuch), I found some of his references heartening. Perhaps I was reading things into them, but his listing of a number of ‘”civil” penalties’ (quotes in original) makes me think he doesn’t like them. (Why else would he list them in an Opinion?)
*****
Today’s “civil” penalties include confiscatory rather than compensatory fines, forfeiture provisions that allow homes to be taken, remedies that strip persons of their professional licenses and livelihoods, and the power to commit persons against their will indefinitely. Some of these penalties are routinely imposed and are routinely graver than those associated with misdemeanor crimes— and often harsher than the punishment for felonies.
*****
Hear hear, Justice Gorsuch! Too many of us, not just RCs, are living proof of penalties “harsher than the punishment for felonies.”
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I also liked his discussion of Due Process. What I gleaned is that he’s a proponent of stronger DP rights for the citizen, regardless of whether a law is civil or criminal. As I say, I may be reading things into his words, but I hope not! Though the case was a vagueness challenge, and seemingly an easy one (though 5-4 indicates otherwise), to me it shows he’s wary of government and Congress willy-nilly tossing out laws for judges (and perhaps the US AG regarding IML?? 🙂 ) to figure out. Let’s hope so.
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Finally, I have to say I find his writing style quite dry and awkward. I’m certainly not the first to say he’s no Scalia when it comes to prose. But he can write in Greek with a yellow crayon for all I care, as long as he’s being a non-partisan Justice.

Mike R or anyone else who can help (Chris F, AJ, NPS, AlexO, etc…),

I’m going to try to take PC 290.007 down this summer, hopefully.

PC 290.007
Date enacted: 2007
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Any person required to register pursuant to any provision of the Act shall register in accordance with the Act, regardless of whether the person’s conviction has been dismissed pursuant to Section 1203.4 , unless the person obtains a certificate of rehabilitation and is entitled to relief from registration pursuant to Section 290.5
====

I think I can file under “writ of prohibition”, but going this route only attacks the lower court decision. I don’t exactly know what to file.

Here’s what I have so far to refute PC 290.007, negating recipients of 1203.4 who are registrants:

1. Kelly v Municipal Court
Link: https://law.justia.com/cases/california/court-of-appeal/2d/160/38.html
Date enacted: 1958
…. Court says that PC 290 doesn’t apply to registrants who qualify and successfully completed their probation to earn 1203.4.

2. Abbott v City of Los Angeles
Link: https://law.justia.com/cases/california/supreme-court/2d/53/674.html
Petition: Action for Declaratory Relief, and injunction
…. Court states ordinance for registration is unconstitutional with respect to 1203.4 as it conflicts with decision by Kelly v Municipal AND lack of knowledge (non PC 290 registration).

3. Lambert v Municipal Court
Link: https://scocal.stanford.edu/opinion/lambert-v-municipal-court-26996
Petition: Writ of Prohibition
…. Court re-affirms an ordinance for registration is unconstitutional via Abbott v City of Los Angeles.

Huh… I guess the petition should be Declarative Relief? I could use feed back on the brainstorming process. PC 290.007 conflicts with Kelly v Municipal. I’ll provide US and California Constitutions were violated, but if you read “Abbott v City of Los Angeles”, then you’ll discover the Court doesn’t venture into other violated constitutions. The Court stopped once they agreed that the ordinance was in conflict with “Kelly v Municipal”.

Thanks for any feed back.

Doing light research work still about 1203.4 and “Kelly v Municipal”, I stumbled upon this Santa Clara Review of cases in 1984, Link: https://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=1958&context=lawreview

It’s reviewed re: Reed case, 290 is cruel and unusual punishment for a misdemeanant sex offender. Also, it found the registry to be punitive via the seven M-M factors. Here’s the conclusion to that review:
====
CONCLUSION
Reed has firmly established the Mendoza-Martinez factors in
California law as the composite test for determining what is punishment
and the Lynch technique for inquiring whether a disproportionality
exists between a crime and its punishment.
Reed, through application of the Mendoza-Martinez factors,
held that section 290 registration of section 647(a) offenders is punishment
in the constitutional sense. In discussing whether the sanction
involved an affirmative disability or restraint, the Reed court
pursued a generalized analysis rather than one that focused specifically
on the individual petitioner. The court’s use of the historical
Mendoza-Martinez factors led to the conclusion that section 290 was
a constitutionally suspect punitive measure. The court found that all
of the other Mendoza-Martinez factors, considered separately and
collectively, indicated that section 290 was a punishment within the
constitutional meaning.
Under the Lynch proportionality analysis, the Reed court found
the nature of the section 647(a) offense/offender to be a minor danger.
Under the intrajurisdictional comparison inquiry, other more
serious crimes in California were found to be punished less severely.
Under the interjurisdictional comparison, California’s statute was
found to be the most severe of a group of similar statutes from other
states. This analysis resulted in the Reed court holding that section
290 registration for section 647(a) misdemeanants was cruel or unusual
punishment because the punishment was found to be grossly
disproportionate to the crime.
As is illustrated in Reed, the Lynch test maintains a place in
assuring the proportionality between crime and punishment, even after
being tempered by the cases which followed it. Reed further suggests
that the standard of review to be applied in California examinations
of proportionality is the intensified rational basis model, an
appropriate one for the aims of the proportionality analysis, but one
which requires a clearer statement by the California courts.
Denise M. DeRose
====

The case review is the last case in the link. The CA courts went through the Medoza-Martinez factors and founded 290 to be punishment. Here’s a quote that might help push back on 290 as a whole:
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In examining the second Mendoza-Martinez factor, the Reed
court found that the sex offender registration “may not have historically
been regarded as punishment,” but that this fact was not dispositive.
9 Relying on Trop v. Dulles,”0 the court denied that the
government had the power to devise any punishment within its imagination,
and asserted that “any technique outside the bounds of
traditional penalties is constitutionally suspect.”3 The Reed court
asserted that the fact that a sanction does not fall within the historical
definition of punishment indicates not only that the sanction is
punishment, but that it is constitutionally suspect punishment.
====

I want to re-emphasize “any technique outside the bounds of traditional penalties is constitutionally suspect.”

Registration is a technique outside the bounds of traditional penalties. This re: Reed case was reviewed in 1983 (the case initially was started in 1979, so the case was passed between the two dates). 290 was viewed as punishment by CA courts. Since 2003 Smith v Doe declared sex offender registration ‘not punishment’, then what is being applied to every CA 290 registrant today are ‘techniques outside the bounds of traditional penalties’ being imposed upon a free CA citizen. In other words, registrants are enrolled into compulsory service after completing their punishment custody by the State of Ca.

People only think 290 is registration and re-registration. It isn’t. It’s more. You are under police surveillance every single minute you belong to the registry. You are subject to a police inquiry, round-up, or line-up because you belong to the registry, as stated by Kelly v Municipal (1958) and re: Reed (1983). But in today’s era, there are more regulations, restrictions, and regulations ‘outside the bounds of traditional penalties’ imposed upon today’s registrants.

Remember, 2003 Smith v Doe re-wrote that the sex registry was not punishment. In re: Reed, before the 2003 Smith v Doe decision, it deemed the sex registry to be ‘constitutionally suspect punishment’.

** 13th Amendment, US Constitution:
“Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”

** Section 6 of Article 1, CA Constitution:
“Slavery is prohibited. Involuntary servitude is prohibited except to punish crime.”

Involuntary servitude is compelled service, or compulsory service, compulsory duty.

In jail, you do as you’re told. On parole/probation, you do as you’re told and are subject to any regulations, restrictions, and reporting. Those are punishments levied upon a convicted person. In both cases, a convict is under custody of the state. Once a convict is no longer under custody, then the state can no longer dictate what a person can do as they are now free from their punishment after serving their punishment. Unless you’re a registrant.

If you read PC 290, then you’ll see it’s a “duty to register” phrased used often.

As a registrant, you’re still in custody of the State of California as easily denoted by your Registration Identification Card by the State of California. As a free California citizen, you’re subjected to surveillance, regulations, restrictions, and in-person reporting, which includes taking a picture (mug shots) and fingerprinting (mug prints). It is a ‘duty’ for free California citizen who register to comply to the surveillance, regulation, restrictions, and in-person reporting with all 290 items. As a free California citizen who registers, any refusal to the subjected surveillance, regulations, restrictions, and in-person reporting is designated a criminal act.

Comparatively, any other free California citizen are not subjected to imposed duties, such as 290 surveillance, regulations, restrictions, and in-person reporting nor are they criminalized for refusing the state of California for these “additional duties/services”.

The registry was born out of conviction. Only punishment is a legal form of involuntary servitude as one loses their rights as they’re under custody of the state. Once out of custody from the state, an individual regains their rights as their service to the state of California has terminated. They no longer are compelled to serve the state as they’ve completed their punishment custody.

The Sex Offender Registration Identification Card is evidence that a California citizen, though no longer under punishment custody, remains in custody of the State of California. That Registration Card states this California citizen “must” comply with surveillance, regulations, restrictions, and in-person reporting; any refusal will be deemed a criminal act and punished. This ‘duty’ must be complied with for the entirety of a person’s life. This ‘duty’ is not punishment. Megan’s law in California specifically states it is a ‘duty to register’.

The state or nation can compel a convicted person to do duties required within the punishment levied. Any technique compelling a free citizen to a service or duty with the exception of punishment levied upon a convicted person is prohibited. Thus, making the registry scheme unconstitutional as per the 13th Amendment of the US Constitution and section 6 of Article 1 of the California Constitution as the registry has been deemed not punishment.

++++++++++++++++++++ Registration Tool Ineffective ++++++++++++++++++

From the same Review paper:
====
The majority examined the sixth and seventh Mendoza-Martinez
factors together. The Reed court found that an alternate nonpunitive
purpose for the statute existed, namely as a law enforcement
tool. 8 Usually, if a rational connection can be found between a
statute and a non-punitive purpose, the statute will not be held to be
punitive. 9 Here, however, the justices balanced the non-punitive
purpose against the harshness of the statute’s effect. The court reasoned
that even though section 290 registration served a non-punitive
purpose,4 the fact that the registration was an ineffective law enforcement
tool invalidated this purpose in reference to the MendozaMartinez
test. Thus, in light of the statute’s harsh effects, the court
found that the registration statute was punitive under the last factor.
====

See Reed, 33 Cal. 3d at 922 n.7, 663 P.2d at 219 n.7, 191 Cal. Rptr. at 661 n.7 for
a discussion of the inefficiency of § 290 registration as a law enforcement tool.

So if anyone wanted to see how Reed’s proved the tool was ineffective, I gave the info. But since the 2003 Smith v Doe decision stated the registry isn’t punitive, it’s going to be an uphill battle. So who’s correct? The CA Courts (as per re: Reed) or the Supreme Court (2003 Smith v Doe).

+++++++++ update on my research about 1203.4 +++++++++

In re: Reed (1983 or thereabouts), 1203.4 still removes you from the registry. Megan’s law was passed in 1994. PC 290.007 was passed in 2007. I’m still working my way up to 2007, but I haven’t stumbled upon any case that overturns the Kelly v Municipal decision until PC 290.007 says to “disregard” the 1203.4 immunity.

If anyone spots a case overturning “kelly v municipal” between 1984 and 2007, then please do share the info. As of right now, I haven’t discovered any cases overturning “kelly v municipal”. That means “kelly v municipal” should still hold as law. (BTW, when Kelly v Municipal was passed, the registry was deemed non-punitive in 1958. In re: Reed 1983, the registry was then deemed punishment. So Kelly v Municipal should still be upheld even after the 2003 Smith v Doe decision…. or at least I hope so.)