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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

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?
Robert Curtis April 29, 2014 at 10:30 PM
TRUTH. The whole truth and nothing but the truth is what we need to look closely at when considering re-electing Mr. Tony Rackauckas. He has a history of good and not so good (as do we all), but lately I suggest his competency for good judgment is in question. Perhaps for the sake of Mr. Rackauckas we should NOT re-elect him. There is a time for all good men to step aside and let a younger attorney that has shown themselves capable. My supervisor Todd Spitzer or even one of Tony's top staff members should step up. I have a fondness for sports but even I would consider it cruel to put an old horse that was once a grand champion on a race track. I'm not calling Mr. Rackauckas an old hag just that there are better choices to be had. I submit the reason Tony had no opponents in the past is because of the respect his colleagues have for the man (not a bad thing). In sports time demands retirement like that of Michael Jorden to whom many hated to see leave the basketball COURT. I'm sure it's also true with this DA that has held his position for so long. Think about it...even our county supervisors have to leave their seats after a third term. Tony's had a good run. I don't want him to continue and we all end up regretting it. The man put the community in harm's way by allowing a convicted registered sex offender to be alone with women as a hairstylist for the past 14 years after his conviction for assaulting a woman in his salon. This is just one of many missteps and bad judgments of our DA. Okay, I'll through myself under the bus and say I was that registered sex offender. Tony in a way saved my life by my conviction. I was forced into treatment while on probation but while I was a registrant on probation Tony did no follow through thereby placing the public at great risk. I looked over my therapy notes from back then and I was truly a threat (IMO) to public safety. Why did Tony allow a convicted registered sex offender to work in that capacity? Tony appeared before the Anaheim city council (10/09/12) and stated on the record he would support my getting a Certificate of Rehabilitation but come the day in court he had his deputy DA recant the offer. I find that odd since he allowed me to be alone with women in a salon environment for the last 14 years. It gets worse. (Let me look at the client cards) I serviced two of the DA's staff members (not to give their names) on 10/21/11. I did their hair into the night. When I was finished I walked them to their minivan for safety. REALLY!?! A registered sex offender walked two of the DA's staff members to their car in the dark for their safety? (I have their hand written client cards to prove this factual) I guess I was okay according to Tony to do such but not safe enough to receive a Cert, of Rehab. Really? Now about competency and sound judgment. Another example: Why would the DA take a murder case recently to which he flopped? Although he is an attorney and can do such but as DA isn't his position more that of a leader and administrator. It would be like having our sheriff standing on the corner giving out parking tickets. Can she do it? Yes, would she be as proficient as her staff that does it every day? Probably not. Again we need a DA that exercises good judgment. TRUTH

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