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Watchdog Watch, Day 1

December 10, 2009 - 12:16 am

In this week’s CityBeat, I took a critical look at a Nov. 29 Union-Tribune article (reported by the U-T‘s nonprofit* off-shoot, the Watchdog Institute) that said 70 percent of San Diego County sex offenders are violating Jessica’s Law, the 2006 ballot measure that restricts where registered sex offenders are allowed to live. The U-T article interpreted the law as applying to all registered sex offenders. The state of California, however, applies the law only to sex offenders paroled after Nov. 7, 2006. In San Diego County, that’s 434 people—not 1,266 as the U-T story assumes. And, according to adult parole operations, all 434 are complying with the law.

While the text of California Penal Code Section 3003.5 (the residency provision of Jessica’s Law) doesn’t expressly say whether the law’s retroactive, Section 3 of the penal code says “unless expressly so declared” no part of state law can be applied retroactively. And, Jessica’s Law’s authors, legislators George and Sharon Runner, have made it very clear that the law is not retroactive.

How can 1,266 people in San Diego County be breaking a law that lawmakers (and law enforcers) have said doesn’t apply to them?

As I explain in my story, the California Supreme Court is currently considering the case of four sex offenders who were released from prison prior to Jessica’s Law, then re-incarcerated for a non-sexual offense and released to parole. The California Department of Corrections and Rehabilitation (CDCR) is arguing that the four fall under the category of registered sex offenders released to parole after Jessica’s Law was passed. Watchdog Institute editor Lorie Hearn told me that this case opens the door to the law being applied retroactively.

However, in a court brief [pdf], CDCR lawyers say that the way Jessica’s Law is being enforced “is entirely consistent with California law.” CDCR’s lawyers are indeed putting up a vigorous—and, actually, rather scary—defense by suggesting that Jessica’s Law could apply to all registered sex offenders. But, in the end, they ask the court to rule only on the matter of the four plaintiffs.

Whew.

With a hat-tip to voiceofsandiego.org, who started the whole “[insert name here] Watch” thing, we’re starting the clock now, awaiting a correction from the Watchdog Institute and/or the Union-Tribune. Their article had wide reach—just type “sex offenders” and “San Diego” into Google and see how many out-of-state media orgs, blogs and chat groups think that San Diego County’s the land of rogue sex offenders. (Actually, if the article’s conclusions are to be believed, the city of San Diego’s even worse, with an 85-percent noncompliance rate. Best ask Mayor Jerry Sanders and the San Diego Police Department how they feel ’bout that.)

* The Watchdog Institute hasn’t yet filed paperwork to be a nonprofit.

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23 Comments leave one →
  1. Gelevin permalink
    December 10, 2009 - 9:57 am 9:57 am

    I love it when journalists fight.

  2. Rob Hopwood permalink
    December 10, 2009 - 12:06 pm 12:06 pm

    As I noted on one of your stories about this: This issue was brought up in story. The Watchdog Institute wrote:

    “For example, the law doesn’t specify whether residence restrictions apply to all convicted sex offenders or only to those who were convicted or paroled after it passed. There are no penalties for violating the restrictions.”

    “‘The initiative itself was so badly written, no one knows how retroactive it is,’ said Tom Tobin, a clinical psychologist and member of the state Sex Offender Management Board, an advisory group that includes law enforcement and other professionals who deal with sex crimes.”

    There is confusion over this issue. The Watchdog Institute’s story discusses that confusion. It sounds to me like the institute’s editor, Lorie Hearn, also has acknowledged the confusion. The state Supreme Court will have the final say on this issue, and a case asking some of these very questions is in front of them now. That case was also mentioned in that story.

    Best,

    Rob Hopwood
    Social Media Specialist
    The San Diego Union-Tribune and SignOnSanDiego.com

  3. December 10, 2009 - 12:26 pm 12:26 pm

    Rob,

    There’s no confusion. The law currently applies only to registered sex offenders released after Jessica’s Law was passed. All law enforcement agencies agree on that point. The article said that 70 percent of sex offenders are breaking the law. How can they be breaking a law if the state says they’re not? Please explain.

    You can find lots of stories written when JL was on the ballot saying that the law wasn’t specific enough. The Federal Court clarified in February 2007 and the state agreed with that ruling. Can the Supreme Court overturn that ruling? Yes. But in order for the federal judge to make that ruling, he had to reasonably believe that the state’s highest court would have ruled the same way (see: Pullman Doctrine).

    What the Supreme Court is considering right now is a unique situation involving four offenders. CDCR has asked for a ruling only on those four offenders, not on all offenders. The plaintiffs’ attorney wants the language of Jessica’s Law changed to permanently say that the law’s not retroactive. However, California Penal Code already includes language that says no law is retroactive unless expressly stated.

    Again: Watchdog got it wrong.

  4. December 10, 2009 - 12:51 pm 12:51 pm

    Rob,

    This is the lead from that story:

    “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.”

    This is false, absolutely, indefensibly false. Even if you want to say there’s confusion, then the lead is still false.

    The case the story cites and you claim addresses the issue does not. It only addresses the confusion of whether sex offenders who violate parole are covered by Jessica’s law. The Watchdog story does not include a number of offenders who have violated parole, been sent back to jail, rereleased and are living within the restricted areas. That is the only relevant number regarding that case.

    It continues astound me how blind *some* U-T folks are to criticism of their product.

  5. December 10, 2009 - 12:57 pm 12:57 pm

    So I’m a little biased since I occasionally write for Citybeat, but they’re right about this. The story made unsupportable, inaccurate claims that should never have been made. A refusal to admit that, correct the error and apologize for it will now be the Watchdog Institute’s legacy.

    And partner or not, it is your story Rob, when your paper prints it on its pages. Putting it off on someone else and saying hey, not our responsibility is irresponsible and abuse of the UT’s position in the community.

  6. gelevin permalink
    December 10, 2009 - 5:38 pm 5:38 pm

    Being serious now… As a non-journalist I think I am aptly positioned to mediate; however, I may not be up to the task…

    I am not sure that the nexus between the data and the story works… It seems to me like the failure to craft a well written law and that the law doesn’t seem to prevent what it seeks to address, is a good story.

    However, the data is in fact somewhat misleadingly described and the article goes on to contradict the lead with all sorts of quotes from cops saying its unenforceable or intentionally not enforced. Whatever. You say potato, I say Pota’to.

    But the way I read it (like I would a report by a jr. auditor), the article undermines the data conclusion or relevance of the finding.

    If the law doesn’t work and only 7% of child attacks are caused by recidivists, why does it matter that perv’s are living to close to the schools anyway?

    For the conclusion about the data I would expect to see something like “Authorities think the concept of the law is good and that it will eventually work if the language is refined”

    But I didn’t get that sense. In fact I got the opposite when I read about the Chula vista rule being 500ft and everyone being copacetic about it. So again I ask, who cares? Seems the relevant point about the data should have been “State doesn’t know what it will do with Perverts if Jessica’s law is clarified” that kind of lead makes more sense to me.

    My suggestion to the watchdog would be to document your investigative conclusions like an auditor: Criteria (the law), Condition (the finding), Cause (why you have a finding) and Effect (what happens because of the finding).

    If they had done that they likely would of had problems writing the “effect” part of their finding. I say this since apparently there is little effect to the law not working and/or perverts living w/in 2000 feet of a school.

    Yes, I just put on an audit clinic… I love it.

    So, for now, I will have fun watching pride in action because it makes for a good kerfluffle. I am now dissapointed in myself that I read this article three times.

  7. December 11, 2009 - 12:56 pm 12:56 pm

    I had nothing to do with the story, and have been in on no discussions about this issue (if there have been any). As with all my communication in this arena, I am speaking only for myself. My tendency will, of course, be to defend my publication. If I didn’t believe in this place, why would I be here?

    In all the talk about this, I’ve seen no one quote the law. What does it say? I looked it up:

    3003.5 (b) Notwithstanding any other provision of law, it is unlawful for any person for whom registration is required pursuant to Section 290 to reside within 2000 feet of any public or private school, or park where children regularly gather.

    Did this get struck down in one of these cases y’all are talking about, because it seems pretty clear to me. Isn’t Section 3 of the Penal Code one of those “other provisions of law” that would be “notwithstanding” here?

    Reading Kelly’s post, the idea that this is a settled matter of law is that CDCR lawyers asked the court to rule only on the matter of the four plaintiffs. Does that mean the court has to? What if they just uphold the plain wording of the law? Can the CDCR lawyers stop them from doing this?

    I’m a word guy. It looks to me like Kelly’s criticism is largely focused on how the law is being enforced. I tend to look at what the law says. And despite everyone (including the Institute) saying it’s unclear, it just doesn’t look unclear to me.

    Now, for Greg Levin’s amusement, you can all hop on and tell me I’m an idiot with blind loyalty to my employer.

  8. December 11, 2009 - 1:09 pm 1:09 pm

    What the court may or may not rule isn’t the issue here. It’s the question of how the law’s currently being interpreted and enforced: are 70 percent of SD County’s sex offenders right now breaking the law? Because that’s what the Watchdog story’s lead says. The answer is no, they’re not breaking the law. Why? Though the law could have been better written, there’s a federal judge’s ruling that says the law’s not retroactive. Until the state’s highest court overturns that ruling, it stands. Here’s some excerpts from that ruling:

    The SPPCA does not expressly address the issue of retroactivity, but it is well-established in California that
    statutes operate prospectively unless there is clear evidence of intent to the contrary. See Evangelatos v. Superior Court of Los Angeles County, 44 Cal. 3d 1188, 1207 (1988) (“[S]tatutes are not to be given a retrospective operation unless it is clearly made to appear that such was the legislative intent.”) This principle has been characterized as a “time-honored principle,” id. at 1208, that is “familiar to every law student,” id. at 1207 (quoting United States v. Sec. Indus. Bank, 459 U.S. 70, 79.

    Indeed, the principle is expressly codified in the California Penal Code: “No part of [this code] is retroactive, unless expressly so declared.” Cal. Penal Code § 3; see also Cal. Civ. Code § 3. To infer retroactivity is no small feat. “[A] statute will not be applied retroactively unless it is very clear from extrinsic sources that the Legislature or the voters must have intended a retroactive application.” Evangelatos, 44 Cal. 3d at 1208. Formulated differently, a law may be given retroactive effect only by “the unequivocal and inflexible import of the terms, and the manifest intention of the legislature.” Id. at 1207 3. Here, the SPPCA is silent on the issue of retroactivity, and it is not “very clear” from extrinsic sources that the intent of the voters was to make it retroactive. See Tapia v. Superior Court, 53 Cal. 3d 282, 287 (1991) (interpreting voter-approved proposition as operating only prospectively where proposition was silent on issue of retroactivity).

    To determine the intent of a voter-approved initiative, the plain meaning of the law is typically most instructive, Davis v. City of Berkeley, 51 Cal. 3d 227, 234 (1990), but the SPPCA evinces no textual intent of retroactivity.

    • December 11, 2009 - 1:22 pm 1:22 pm

      I think the issue is not just how the law is being enforced, but what it says.

      As the ruling you quote states, “To determine the intent of a voter-approved initiative, the plain meaning of the law is typically most instructive.”

      I’ll post the plain wording again:

      “Notwithstanding any other provision of law, it is unlawful for any person for whom registration is required pursuant to Section 290 to reside within 2000 feet of any public or private school, or park where children regularly gather.”

      What’s to interpret, really?

      • December 11, 2009 - 2:08 pm 2:08 pm

        Ricky: you omitted the clause that follows: “but the SPPCA evinces no textual intent of retroactivity.”

        So we should ignore any sort of judicial clarification of laws, then? Is that what you’re saying?

      • December 11, 2009 - 2:28 pm 2:28 pm

        I liked the plain wording of the first part of the sentence better than the jargon of the second.

        But if I must address it… I can’t pretend to discern “textual intent,” but it does seem like the wording is retroactive on its face, because it applies to “any person for whom registration is required,” which is in the present tense. As in, it applies to any registered sex offender…

        And, again, it has that part about “notwithstanding other provisions,” which would seem to be to rule out that other blanket Penal Code section against retroactivity.

  9. David Rolland permalink*
    December 11, 2009 - 1:57 pm 1:57 pm

    Yes, Ricky, the wording is clear, but a judge ruled that it does not apply retroactively, and retroactivity, according to Kelly’s reporting, is not at issue before the supreme court. The way we see it, the case is closed and clear: It doesn’t not apply retroactively.

  10. gelevin permalink
    December 11, 2009 - 2:03 pm 2:03 pm

    I dunno, it seems the issue is more subjective than that ricky.
    There is a difference between the law and the generally accepted practice or interpretation sometimes.

  11. December 11, 2009 - 2:10 pm 2:10 pm

    Here’s a good example: PC 647g (formerly 647j) is the state law that forbids loitering on public property. But, in the city of San Diego, that law can’t be enforced between 9 p.m. and 5:30 a.m. per a legal settlement signed by a federal judge. Is it correct to say that anyone sleeping on public property between those hours is violating the law?

  12. December 11, 2009 - 2:29 pm 2:29 pm

    I do appreciate the responses, which help me understand the issue. As I said, I’m coming at this only as a reader.

    • December 11, 2009 - 2:44 pm 2:44 pm

      My understanding of “notwithstanding” in a legal context is that it’s null when it comes in conflict with a stronger provision of law, like Section 3.

  13. December 11, 2009 - 4:03 pm 4:03 pm

    Only because you invited me to this debate will I push on: What makes Section 3 “stronger”? Is it in the constitution, or something? Wasn’t Prop 83 approved by 70.5% of voters, and doesn’t that make it pretty strong?

    • December 11, 2009 - 4:22 pm 4:22 pm

      That’s not a relevant point. The issue is the misleading and factually inaccurate reporting. This interpretation isn’t for the reporter to make, but for legislature, judges and attorneys to consider. Instead, the Watchdog Institute’s premise was based on their own flawed interpretation and attributed it to sources who deny that’s their position. They misreported the issue before the courts and they ran with a lead that was a factual error.

      • December 14, 2009 - 6:50 pm 6:50 pm

        And Dave nails it all down nicely. Since when is any reporter free to reason in a story how a law should be interpreted, when a judge has already done so?

    • December 11, 2009 - 4:23 pm 4:23 pm

      Prop. 187 was approved by the majority of voters, but that didn’t stop the court from killing it. Ditto on Prop. 22.

      There’s another case that discusses Jessica’s Law not being retroactive: People v. Milligan. That case gives an example of “expressly stated” retroactivity (Cal. PC 296.1):

      “(b) Paragraphs (2), (3), (4), (5), and (6) of subdivision (a) shall have retroactive application.”

      • December 11, 2009 - 6:06 pm 6:06 pm

        The question is: Why didn’t Watchdog Institute didn’t do this research?

    • December 13, 2009 - 6:15 pm 6:15 pm

      Found some interesting info on the use of the word “notwithstanding” from Legislative Drafter’s Deskbook: A Practical Guide

      The phrase “notwithstanding any other provision of law” is popular with people who have not really thought through a problem. They think that it is an effective way to ensure that a new rule prevails over an old rule–but they are wrong.

      Courts do not take the phrase very seriously, and for good reason: Even when Congress does use the phrase, Congress usually does not intend that all other laws are to be disregarded. When Congress says, “Notwithstanding any other provision of law, the Secretary shall ensure that X, Y, and Z happen,” Congress usually does not mean that the secretary may violate criminal laws and appropriations laws and administrative procedure laws and personnel laws and a whole host of other general laws. And yet that is literally what Congress seems to have said.

      A definitive statement from the Supreme Court is hard to come by, but several federal appeals courts have held that the phrase is not always to be taken literally and does not require that all otherwise applicable laws be disregarded.

    • December 14, 2009 - 6:49 pm 6:49 pm

      Ricky,

      New laws are presumed to be written with awareness of how they will interact with laws already on the books. Section 3 “isn’t stronger” than any other law, that doesn’t really make sense as we don’t have “strong” laws and “weak” laws — it just informs how prop. 83 should be interpreted, which is what the federal district court did.

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