Provided by CPOA Legal Counsel, James R. Touchstone, Jones & Mayer
On November 19, 2019, the United States District Court for the Southern District of California in the case of John Doe #1 and John Doe #2 v. City of San Diego, granted a motion for partial summary judgment filed by two plaintiffs, each a sex offender subject to a lifetime requirement to register with local law enforcement in the offender’s area of residence. The Court determined that a challenged local ordinance, which applied to all registered sex offenders, was preempted by state law. The Court determined that the state law only permitted the residency restrictions the City sought to impose to those offenders who were on parole.
California Penal Code section 290 “imposes upon individuals convicted of certain sex offenses a lifetime requirement that they register with law enforcement in the communities in which they reside.” In re E.J., 47 Cal. 4th 1258, 1263 (2010). In November 2006, California voters passed Proposition 83, “The Sexual Predator Punishment and Control Act: Jessica’s Law.” Among other things, Proposition 83 amended Penal Code section 3003.5, “a statute setting forth restrictions on where certain sex offenders subject to the lifetime registration requirement of section 290 may reside.” In re E.J., 47 Cal. 4th at 1263. Proposition 83 added subdivisions (b) and (c) to Section 3003.5.
In April 2008, the San Diego City Council adopted the Child Protection Act: San Diego Municipal Code, Chapter 5, Article 8, Division 6, sections 58.0601– 58.0607 (the “Ordinance”). The Council sought to provide “additional restrictions” beyond those provided for in Jessica’s Law. (Ordinance section 58.0601.) Specifically, the Ordinance imposed additional residency restrictions on registered sex offenders. (See Ordinance section 58.0602, which provides it is unlawful for a registered sex offender to reside within 2000 feet of an: amusement center, arcade, child day care facility, library, playground, park, and school.) The Ordinance applies to all “Registered sex offenders,” which is defined as “any person required to register pursuant to California Penal Code section 290” Ordinance section 58.0602. Defendant City of San Diego conceded that its Ordinance applied to all registered sex offenders, not just those who are on parole.
Plaintiffs John Doe #1 and John Doe #2 (together, “Plaintiffs”) are two California residents who are required to register as sex offenders pursuant to Section 290, et seq. John Doe #1 resides in the City of San Diego, and John Doe #2 intends to lawfully reside in the city. Therefore, John Doe #1 alleges he is subject to the Ordinance, and John Doe #2 alleges the Ordinance precludes him from establishing a residence in the City of San Diego. Plaintiffs filed a motion for partial summary judgment challenging the constitutionality of the Ordinance, arguing that “California state law preempts local governments from imposing residency restrictions on [registered sex offenders] who are not serving terms of parole.” The City of San Diego opposed the Motion.
Section 3003.5 of the Penal Code provides:
(a) Notwithstanding any other provision of law, when a person is released on parole after having served a term of imprisonment in state prison for any offense for which registration is required pursuant to Section 290, that person may not, during the period of parole, reside in any single family dwelling with any other person also required to register pursuant to Section 290, unless those persons are legally related by blood, marriage, or adoption. For purposes of this section, “single family dwelling” shall not include a residential facility which serves six or fewer persons.
(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.
(c) Nothing in this section shall prohibit municipal jurisdictions from enacting local ordinances that further restrict the residency of any person for whom registration is required pursuant to Section 290. (Italics added.)
The Court observed that San Diego enacted its Ordinance, which imposes additional residency restrictions on all registered sex offenders, pursuant to what it deemed to be power to do so under Section 3003.5(c). The Southern District noted that “[a]t first blush and when read without any context,” subsection (c) appears to give broad power to a city to enact any law that restricts any registered sex offender.
The Court explained that the California Constitution allows cities and counties to enact and enforce local ordinances so long as they are “not in conflict” with the state’s “general laws.” Cal. Const. Art. XI section 7. “If otherwise valid local legislation conflicts with state law, it is preempted by such law and is void.” Sherwin-Williams Co. v. City of Los Angeles, 4 Cal. 4th 893, 897 (1993) (quoting Candid Enters., Inc. v. Grossmont Union High Sch. Dist., 39 Cal. 3d 878, 885 (1985).). “A conflict exists if the local legislation ‘duplicates, contradicts, or enters an area fully occupied by general law, either expressly or by legislative implication.’” Id. (quoting Candid, 39 Cal. 3d at 885). “A local ordinance enters a field fully occupied by state law in either of two situations—when the Legislature ‘expressly manifest[s]’ its intent to occupy the legal area or when the Legislature ‘impliedly’ occupies the field.” O’Connell v. City of Stockton, 41 Cal. 4th 1061, 1068 (2007) (quoting Sherwin-Williams, 4 Cal. 4th at 898).
The Court observed that a Legislature impliedly preempts a field in three situations:
when ‘ “(1) the subject matter has been so fully and completely covered by general law as to clearly indicate that it has become exclusively a matter of state concern; (2) the subject matter has been partially covered by general law couched in such terms as to indicate clearly that a paramount state concern will not tolerate further or additional local action; or (3) the subject matter has been partially covered by general law, and the subject is of such a nature that the adverse effect of a local ordinance on the transient citizens of the state outweighs the possible benefit to the locality.”
Id. (quoting Sherwin-Williams, 4 Cal. 4th at 898). “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.’” People v. Nguyen, 222 Cal. App. 4th 1168, 1174 (2014) (citations omitted). In their motion, Plaintiffs argued that California had established a comprehensive scheme for regulating sex offenders and thus had occupied the field.
The Southern District noted that Plaintiffs relied heavily on Nguyen. In Nguyen, the plaintiff, a sex offender who was required to register under Section 290, contested a local ordinance. The Nguyen court evaluated the Sex Offender Punishment, Control, and Containment Act of 2006, which is wide-ranging, comprehensive, and contains sixty sections. Nguyen concluded that “the Legislature established a complete system for regulating a sex offender’s daily life and manifested a legislative intent to fully occupy the field.” Nguyen, 222 Cal. App. 4th at 1181. The Nguyen court recognized subsection (c) of Section 3003.5. Nguyen noted that the subsection “expressly authorizes local regulation” but is “a voter-created exception” and therefore reflects the voters’ intent, not the Legislature’s intent. Id. at 1185 n.5. The subsection “in no way undermines the Legislature’s intent to fully occupy the field. If anything, the initiative implicitly recognizes the statutory scheme preempts local regulation unless the voters carve out an exception.” Id.
The Southern District observed that one federal court had followed Nguyen’s preemption analysis in a case the Southern District deemed “remarkably similar” to the case here. In Clymer v. City of Adelanto, CV 16-2535 JGB (JCx), 2017 WL 10591757, at *5 (C.D. Cal. Dec. 18, 2017), the federal court evaluated Nguyen and held “the Legislature intended to fully occupy the field of a sex offender’s daily life which includes residency restrictions.” Therefore “California’s statutory scheme occupies the field of sex offender residency restrictions.” Id.
The City of San Diego argued that Section 3003.5(c) explicitly recognized the power of local authorities to enact local ordinances that further restrict the residency of registered sex offenders. Plaintiffs maintained that Section 3003.5(c) presents a limited exception to the otherwise preempted field of sex offender regulation which authorizes some local control over residency, but that this permission does not mean the field is not preempted.
The Southern District Court agreed with Plaintiffs, explaining that “simply because there is a carved-out, voter-created exception allowing local regulations does not mean that the field cannot still be preempted. ” See Nguyen, 222 Cal. App. 4th at 1185 n.5. The Court explained that it analyzed preemption by reviewing the purpose and context of Jessica’s Law.
The Court observed that here, “Jessica’s Law provides that: ‘The Legislature finds and declares that a comprehensive system of risk assessment, supervision, monitoring and containment for registered sex offenders residing in California communities is necessary to enhance public safety and reduce the risk of recidivism posed by these offenders.’ Penal Code section 290.03(a) (emphasis added). In creating Jessica’s Law, the Legislature created ‘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.’ Id. at Section 290.03(b) (emphasis added).” Thus, the Court declared, “the text of Jessica’s Law itself shows preemption.”
The Court therefore found that state law fully occupied the field of sex offender registration. However, the Court also found that Jessica’s Law allows municipalities to enact certain ordinances in this preempted field under Section 3003.5(c). The Court next turned to the remnant issue of whether San Diego’s Ordinance was permissible under the scope of Jessica’s Law.
The Court noted that the phrase “any person” is used throughout section 3003.5, and that subdivision(c) provides that municipal jurisdictions may enact “local ordinances that further restrict the residency of any person for whom registration is required pursuant to Section 290.” Section 3003.5(c) (emphasis added by the Court).
The City of San Diego’s Ordinance applies to all “Registered sex offenders,” which is defined as “any person required to register pursuant to California Penal Code section 290” Ordinance Section 58.0602. This means the Ordinance covers all registered sex offenders, even those who are not on parole. The City argued Section 3003.5’s use of the term “any person” likewise covered any registered sex offender, including those not on parole. On the other hand, Plaintiffs argued that Section 3003.5 applied only to registered sex offenders on parole, and consequently, when the statute uses the term “any person,” it applied to only those on parole.
The Court found that the Plaintiffs’ view was supported by authority. See Clymer, 2017 WL 10591757, at *5 (holding “the state law applies only to parolees”); People v. Lynch, 2 Cal. App. 5th 524, 528 (2016) (holding section 3003.5(b) does not apply to sex offenders on probation, but only to sex offenders on parole); see also Weiss v. City of Maywood, No. VC066407, at 3 (Cal. Super. Ct. May 31, 2018) (determining that Jessica’s Law “authorizes local regulation for sex offenders released on parole” and that the relevant local ordinance exceeded the scope of Jessica’s Law because the ordinance applied to all sex offenders, “regardless of whether that person is on parole or probation”).
The Court stated that Lynch strongly supported Plaintiffs’ position. Lynch found that the use of the phrase “any person” in 3003.5(b) is limited “to the class of persons identified in [3003.5(a)]—parolees.” Id. at 528. The Court noted that Lynch relied on wording from the California Supreme Court case In re E.J., 47 Cal. 4th 1258 (2010), which noted that Section 3003.5(b) is “obviously intended to apply to ‘persons released on parole.’” 47 Cal. 4th at 1271 (quoting Penal Code section 3003.5(a)). The Lynch court then analyzed the context and entirety of the Penal Code statute relying on the phrase from In re E.J.
The Southern District observed that Lynch reasoned that Jessica’s Law amended Section 3003.5, which was an existing statute regulating sex offender registrants that was applicable only to parolees. The newly amended law kept the original language of Section 3003.5, now codified as Section 3003.5(a), which limits its coverage to “a person [who] is released on parole after having served a term of imprisonment in state prison for any offense for which registration is required pursuant to Section 290,” i.e, a parolee. (Section 3003.5(a)). The drafters of Jessica’s Law placed (b) immediately following (a). The Lynch court reasoned that this placement:
“indicates the intent of Proposition 83’s drafters to align and limit the ‘any person’ reference in subdivision (b) to the class of persons identified in subdivision (a)—parolees. Therefore, the language of [S]ection 3003.5 as a whole indicates the subdivision (b) residency restriction applies, as does subdivision (a), only to parolees for the period of their parole term.”
This Southern District found the reasoning of Lynch to be “strong.”
The Court added that in People v. Mosley, 60 Cal. 4th 1044 (2015), the California Supreme Court noted that the Attorney General representing the State of California “posit[ed] that the residency restrictions of [S]ection 3003.5(b) apply only to paroled sex offender registrants while they are on parole, and have no effect on non-parolee registrants.” Id. at 1054. The Southern District stated that Mosley did not decide “whether [S]ection 3003.5(b) applies to sex offenders who are not on parole” and instead assumed so based on the Attorney General’s opinion.
Moreover, the Southern District observed that the federal District Court in Clymer evaluated the opinion in Lynch and determined “the state court engaged in its own interpretation of legislative intent.” Clymer further found “it is unnecessary, and would be inappropriate, for this Court to undertake an interpretation anew.” And although the Lynch court evaluated subsection (b) of Section 3003.5 and not subsection (c), the Clymer court determined it must interpret statutes so that they are “consistent with each other” and a word “accorded a particular meaning in one part or portion of a law, should be accorded the same meaning in other parts or portions of the law.” The Clymer court accordingly found “any person” under subdivision (c) to refer only to parolees. The Southern District Court concluded that the analyses in Lynch and Clymer were strong and well-reasoned.
The Court rejected City of San Diego’s contention that the intent of the Legislature was for Jessica’s Law to apply to all sex offenders, not just those on parole. The Court pointed out that Jessica’s Law amended an existing statute regulating sex offender registrants that was applicable only to parolees. Before Proposition 83, only subsection (a) of 3003.5 existed, regulating only persons “released on parole after having served a term of imprisonment in state prison for any offense for which registration is required pursuant to Section 290.” See Cal. Pen. Code section 3003.5 (1998), amended by Proposition 83 section 21 (2006). Nor did the Court find any indication that subsections 3003.5(b) and (c) expand the categories of those covered by the original law, remarking, “They were not placed following subsection (a) by accident.” The Court concluded the context unambiguously showed that the subsections are part of a statute regulating parolees.
Summarizing, the Southern District held that California state law fully occupies the field of sex offender registration. While Jessica’s Law allows municipalities to enact their own ordinances, the Court explained that this permission is limited to parolees. The Court concluded that the Ordinance entered a field fully occupied by state law and exceeded the scope of what state law allowed. The Court concluded the Ordinance was therefore preempted by state law and was void, and accordingly granted Plaintiffs’ motion for partial summary judgment.
HOW THIS AFFECTS YOUR AGENCY
The District Court’s ruling clarifies that municipalities may not enact law that enlarges Section 3003.5’s residence restrictions beyond parolees for sex offenders who are required to register with law enforcement pursuant to Section 290. Further litigation of this issue may follow by way of appellate proceedings in the case. However, in consideration of its broad implications, we thought it prudent to issue an alert on this ruling. We will continue to monitor this case and provide subsequent alerts concerning the case’s ultimate conclusion.
As always, if you wish to discuss this matter in greater detail, please feel free to contact James R. Touchstone at (714) 446–1400 or via email at firstname.lastname@example.org.
Information on www.jones-mayer.com is for general use and is not legal advice. The mailing of this Client Alert Memorandum is not intended to create, and receipt of it does not constitute, an attorney-client-relationship.
 See also Cal. Tow Truck Ass’n v. City & Cty. of San Francisco, 225 Cal. App. 4th 846, 849 (2014) (noting “[s]tate law generally preempts local law in the field of traffic control” but recognizing “[t]here are exceptions” to the preemption and the “Legislature has allowed local regulation of tow truck companies and drivers”); Housing Auth. v. Van de Kamp, 223 Cal. App. 3d 109, 117 (1990) (holding the “Legislature has preempted the field to preclude local regulation” in the area of dissemination of criminal records but noting the “statutory scheme provides narrow exceptions to the general rule” prohibiting disclosure of criminal records).
 2017 WL 10591757, at *7.
 See O’Connell v. City of Stockton, 41 Cal. 4th 1061, 1065 (2007) (holding any city ordinance that conflicts with state law is preempted and thus void).