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

“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,” says a 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. Patch file photo.
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. Patch file photo.

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

Janice Dunn February 20, 2014 at 12:51 AM
The decision of the Orange County District Attorney to appeal these decisions is expected. Having said that, it is still a waste of taxpayer dollars and the citizens of Orange County should be outraged. Two courts have issued clear decisions stating that the county’s ordinance is void and therefore unenforceable because it is preempted by state law. IF the state Supreme Court grants review of these decisions, we can expect a l-o-n-g wait for their decision similar to the 3-year wait for their decision regarding residency restrictions.
Rod Temple February 20, 2014 at 02:26 AM
These park, etc. bans are nothing but pure theft by criminal regimes. There is not a single American that supports it. The criminal Tony Rackauckas has yet to explain why his ban did not include even people who have been convicted of crimes in parks, etc. Rackauckas really wants everyone to believe that banning "sex offenders" from parks, etc. is for safety and yet he doesn't think that people who have SHOT people with guns in parks, etc. should be included in the ban. His ban and the Sex Offender Registries in general, are not REALLY about public safety, protecting children, or any of the similar lies they tell. They are all about making stupid people feel better.
Linda Raymond February 20, 2014 at 11:44 AM
Bans do not matter. The most successful sick predators are the ones who are never caught. People need to teach their kids, educate them crimes committed by strangers and the more common crimes of opportunity.The fact that citizens literally rely on a nanny state to keep their kids safe is mindblowing.
R. Fisher February 20, 2014 at 01:00 PM
Dear Mr. Fitzpatrick / OCDA - "Cities and counties need to know..." - but they do know. They were told by two different courts - in unanimous decisions, if memory serves. ----- Taking this to the Supreme Court - on whose dime? As a tax paying resident of Orange County I object. Unless the OCDA comes up with something new and revolutionary, I do not really see the point. Most second year law students probably would not either, for that matter. ----- This could be a lengthy process. In the meantime, many cities still have these - at this point unconstitutional - laws in their code. Whether they are being enforced is immaterial. ----- Anyone who thinks 75,000 residents / tax payers in this State, and their families, are going to twiddle their thumbs for years while their Constitutional Rights are being violated is delusional. Are OC residents willing to fund the OCDA's desperate attempt for a spot in history? The DA's future ambitions for whatever? I am not. ----- One can only hope the City of Mission Viejo initiate a repeal of their ordinance in the very immediate future. What say you, Councilwoman Schlicht? Tough decision here... protector of kids or saver of taxpayer resources... you have maneuvered yourself into a tough spot. Really a lose-lose.
Rod Temple February 20, 2014 at 03:23 PM
R. Fisher (February 20, 2014 at 01:00 PM): You are exactly right. The only thing I think you are wrong about (if you are saying it) is that the supporters of these bans are not "protector of kids". In fact, if they were actually concerned about protecting children, not only would there never have been any bans, the Sex Offender Registries themselves would not exist. No one who is serious about protecting children supports the Registries. Experts have continually and constantly testified against them. Anyway, all of the governments that tried to enact these bans should be sued and forced to pay not just compensatory damages to everyone who was injured by them but they should be forced to pay huge punitive damages as well. We need to send a message to un-Americans like them that we will not put up with crimes.
Isaac February 20, 2014 at 06:39 PM
Sex offenders are terrible people but they are also citizens of the country and parks are a public place. I cannot see how these bans are constitutional or even effective in any way. You want to get serious about sex offenders? Teach children about them, divert money from drug and prostitution stings, lock repeated sex offenders up in mental facilities. The prison system has failed us, the police have failed us and our representatives only search for answers that involve those two inept institutions.
Eric Knight February 20, 2014 at 11:23 PM
When the OC supervisors first discussed and voted for the OC park ban for registered sex offenders back in March, 2011, I was at the meeting giving testimony that the law was unconstitutional, and outlined how law was going to be taken down. The DA was none to pleased at my testimony, and I suspect that part of their insistence of taking this to the state is because they are angrier at losing than at keeping OC residents and visitors safe at parks and beaches. So far, the DA's office has expended about 2 million dollars for this fiasco, and taking it to the CA Supreme Court will cost another few hundred thousand dollars of the OC taxpayers hard-earned money. Article from March 2011 with my testimony: http://tinyurl.com/knight-testimony
R. Fisher February 21, 2014 at 07:50 PM
Eric Knight - thank you for that link. I also went ahead and viewed the pertinent BOS meeting from March 2011. http://ocgov.granicus.com/MediaPlayer.php?view_id=4&clip_id=817 - Item #53 Indeed you predicted that this law would be overturned, in those words. In direct response to that OCDA Rackauckas stated that this ordinance was on solid ground, legally speaking, especially regarding the preemption issue. Looks like Eric Knight 1 : OCDA 0. I do not know your background, but I am bewildered that all attorneys in the DA's office could be so wrong. As a tax payer I am very interested in the cost of this oh so misguided idea - up until now, and from this point going forward. How are you able to put a dollar figure to this? Does this fall under the "Freedom of Information Act" - and how does one get this figure?

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