Lompoc City Council Agenda Item

Transcription

1 Lompoc City Council Agenda Item City Council Meeting Date: July 15, 2014 TO: FROM: Patrick Wiemiller, City Administrator Joseph W. Pannone, City Attorney Lindsay M. Tabaian, Special Litigation Counsel SUBJECT: (1) Introduction of Ordinance No. 1606(14) Amending Portions of Chapter 9.44 of the Lompoc Municipal Code Regarding Loitering By Registered Sex Offenders to Align With California Penal Code Section 653b; and (2) Approval of Settlement Agreement Regarding Litigation Entitled Frank Lindsay v. City of Lompoc, Central District Case No. 2:14-cv-3032 and Associated Stay of City s Residency Restrictions Recommendation: Based on the analysis presented in this report, the Office of the City Attorney and staff recommend the City Council take the following actions: 1) Introduce, for first reading, Ordinance No. 1606(14) Amending Portions of Chapter 9.44 of the Lompoc Municipal Code Regarding Loitering By Registered Sex Offenders to Align With California Penal Code Section 653b (Attachment 1 includes redlined changes and Attachment 2 is the final version of the proposed Ordinance); 2) Approve the Settlement Agreement & Release of All Claims regarding the matter of Frank Lindsay v. City of Lompoc, Case No. 2:14-cv-3032, filed on April 21, 2014, and authorize the Mayor to execute the same on behalf of the City Council, following approval as to form by the City Attorney (Attachment 3); 3) Pursuant to Section 3 of the attached Settlement Agreement & Release of All Claims, authorize the Lompoc Police Department to temporarily stay enforcement of Lompoc Municipal Code sections and , regulating the residency of registered sex offenders, until such time as the California Supreme Court has issued a final and binding decision in the matter of In Re Taylor.

2 Page 2 of 6 Background: In the 1990s, federal and state legislatures enacted various laws intended to protect minors from registered sex offenders. At the federal level, this legislation includes Megan s Law, which was adopted in 1996 and created a nationwide sex offender registry. At the state level, the California legislature adopted a series of regulations on the day-to-day lives of registered sex offenders, codified at California Penal Code 290 et seq., including a voter-approved measure known as Jessica s Law, codified at California Penal Code ( Section ). Section regulates the residency of registered sex offenders. It specifically prohibits registered sex offenders from residing within 2,000 feet of a school or park (Section (b)), and expressly permits supplemental local regulation of sex offender residency (Section (c)). In addition, California Penal Code section 653b (Section 653b) regulates loitering by registered sex offenders and provides any 290 registrant who loiters about any school or public place at or near which children attend or normally congregate is guilty of a misdemeanor. (Id. at subds. (b)-(c).) After the adoption of those state laws, concerns arose among numerous California cities regarding how local agencies could enforce Megan s Law and Jessica s Law. Due to those concerns, over 75 California municipalities, including the City of Lompoc, enacted local ordinances further regulating the residency, loitering and other activities of registered sex offenders in their communities. Mirroring state law, the Lompoc Municipal Code currently imposes both residency and loitering restrictions upon the activities of registered sex offenders in the City. Those laws (state and local) have prompted a series of lawsuits up and down the State of California. As those legal challenges have made their way through the court system, California courts have begun to limit the independent regulatory authority of municipalities. Those Supreme Court and appellate decisions, described herein, now call into question the continuing efficacy and enforceability of certain portions of Lompoc s Municipal Code regulating registered sex offenders. In addition, on April 21, 2014, the City of Lompoc was served with a federal lawsuit filed by a registered sex offender named Frank Lindsay in the matter of Frank Lindsay v. City of Lompoc, Central District Case No. 2:14-cv-3032, which challenges the constitutionality of the Ordinance. Discussion: A. Summary of City s Ordinance In 2012, the City of Lompoc acted proactively to further the protections provided by state law by adopting Lompoc Municipal Code ( LMC ) Chapter 9.44, entitled

3 Page 3 of 6 Registered Sex Offender Residency Prohibitions (the Ordinance ). The Ordinance codifies the following restrictions upon registered sex offenders within the City of Lompoc: 1. Loitering Restrictions (LMC , ): Registered sex offenders may not loiter or temporarily reside "within 300 feet from... a child care center, public or private school... park, public library, commercial establishment that provides a child's playground either in or adjacent to the establishment, a location that holds classes or group activities for children, and/or any school bus stop." 2. Residency Restrictions (LMC , ): Registered sex offenders may not live "2,000 feet from... a child care center, public or private school... park, or public library." The Ordinance further includes "co-habitation" restrictions, which provide a registered sex offender may not live in a single- or multi-family dwelling, if another unrelated registered sex offender has already established residency at that location. 3. Hotel/Motel Restrictions (LMC ): Registered sex offenders are prohibited from: (i) renting or occupying the same hotel room as another sex offender, or (ii) renting or occupying another room in the same hotel or motel where a room is already occupied by a sex offender. 4. Enforcement Provisions (LMC ): The above-stated restrictions are enforced through a series of enforcement provisions, which require landlords and hotel operators to comply with these laws in renting out their units. The Ordinance further provides violators of this Chapter "shall be guilty of a misdemeanor," subject to certain "grandfathering" and legal exceptions. B. Recent Court Cases Regarding Residency and Loitering Restrictions Recently, the California Supreme Court has accepted a case which reviews and could potentially change the current status of the law regarding residency restrictions like those in the Ordinance and Section Specifically, our highest court accepted a petition for review in the matter of In re Taylor, Supreme Court Case No. S206143, regarding the constitutionality of residency restrictions at both the state and local level. Prior to that grant of review, the controlling case on the constitutionality of Section was a Supreme Court decision issued in the matter of In re E.J. (2010) 47 Cal.4th 1258 ( E.J. ), which affirmed Jessica s Law was constitutional and was not an ex post facto law. (Id. at 1264). Subsequently, in 2012, a registered sex offender residing in San Diego County initiated the matter of In re William Taylor (2012) 209 Cal.App.4th 210 ( Taylor ). The offender sought a court order enjoining the California Department of Corrections and Rehabilitation ( CDCR ) from enforcing the residency restrictions set forth in Jessica s

4 Page 4 of 6 Law/Section , on the grounds the blanket restriction was unconstitutional. The trial court agreed with the sex offender, and granted the relief sought. The CDCR appealed, and the Court of Appeals, Fourth Appellate District, affirmed the trial court s order in favor of the registered sex offender. The California Supreme Court has granted the CDCR s petition for review of that appellate court decision. Given its prior decision in E.J., it is possible the Supreme Court will reverse the lower courts and issue a decision which will be favorable to the continued enforceability of the Ordinance. However, we cannot be certain of that outcome. It is likely the California Supreme Court will issue a decision later this year. In addition, the California Court of Appeal, Fourth Appellate District, has issued, and the California Supreme Court has declined to review, two related opinions regarding the permissible scope of local enforcement of registered sex offenders in the matters of: Hugo Godinez v. People of the State of California, Court of Appeals Case No. G ( Godinez ) and People v. Nguyen, Court of Appeals Case No. G ( Nguyen ). These published decisions determined state law preempted municipalities from adopting ordinances prohibiting sex offenders from entering local parks. Notably, in reaching this conclusion, the Court of Appeals determined that in enacting the restrictions set forth at California Penal Code 290 et seq., the state of California 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 (emphasis in original by the court). C. Frank Lindsay Litigation Against City of Lompoc The same week as the Supreme Court s April 2014 decision not to review the Court of Appeals rulings in Godinez and Nguyen, the City was served with a federal lawsuit filed by a registered sex offender named Frank Lindsay in the matter of Frank Lindsay v. City of Lompoc, Central District Case No. 2:14-cv That lawsuit challenges the constitutionality of the Lompoc Ordinance and alleges it is in violation of the First, Fifth and Fourteenth Amendments to the U.S. Constitution, the Ex Post Facto Clause of the U.S. Constitution, and Article XI, Section 7 of the California Constitution (state law preemption). This lawsuit is one of five filed by Mr. Lindsay through an organization entitled the California Reform Sex Offender Laws ( RSOL ). The other cities sued include the City of Pomona, City of South Lake Tahoe, National City and the City of Carson. Mr. Lindsay s counsel in all the matters is the same.

5 Page 5 of 6 D. Summary of Recommended Amendments to Residency Restrictions in Development Code In light of those recent court decisions, and the litigation initiated against the City, the City Attorney s office recommends the Council take the following actions (reiterated briefly above, and restated here with further detail regarding the basis for and effect of these recommendations): First, introduce, for first reading, Ordinance No. 1606(14) Amending Portions of Chapter 9.44 of the Lompoc Municipal Code Regarding Loitering By Registered Sex Offenders to Align With California Penal Code Section 653b (Attachment 1). Effectively, the proposed amendment would align the City s loitering restrictions with California Penal Code Section 653b, which provides any 290 registrant who loiters about any school or public place at or near which children attend or normally congregate is guilty of a misdemeanor (id. at subds. (b)-(c)), as opposed to the Ordinance s current requirement for registered sex offenders to remain 300 feet from numerous child-centric locations in the city. Second, approve the attached Settlement Agreement & Release of All Claims regarding the matter of Frank Lindsay v. City of Lompoc, Case No. 2:14-cv-3032, filed on April 21, 2014, and authorize the Mayor to execute the same on behalf of the City Council. In response to the initiation of the Frank Lindsay lawsuit, our office has negotiated a proposed settlement agreement with counsel for Mr. Lindsay/RSOL. The settlement agreement will: (1) settle the pending lawsuit for the nominal sum of $2,500 in attorney s fees and (2) stay the residency provisions of the Ordinance until the In re Taylor decision is issued by the Supreme Court. Third, pursuant to the settlement agreement (see Attachment 3, Section 3), authorize the Lompoc Police Department to temporarily stay enforcement of Lompoc Municipal Code sections and , regulating the residency of registered sex offenders, until such time as the California Supreme Court has issued a final and binding decision in the matter of In Re Taylor. As the Council has previously been informed, the proposed stay of the City s residency restrictions only has been discussed with and approved by Chief Ralston. Pursuant to the settlement agreement, once the In re Taylor decision is issued by the California Supreme Court, both parties including Mr. Lindsay and the RSOL members have agreed to conform to the Court s decision without the City needing to take further enforcement action.

6 Page 6 of 6 Fiscal Impact: Approval of the Settlement Agreement will result in the City s payment of $2,500 in attorney s fees to Mr. Lindsay. City s costs related to defending this lawsuit are appropriated in the City s self-insurance program Liability Insurance, a non- General Fund resource. Funds are appropriated and available in account for the payment of the $2,500 in accordance with the terms of the Settlement Agreement. Conclusion: In light of those recent opinions by our state s high courts, and the filing of the Frank Lindsay case against the City of Lompoc, it is recommended the City: (1) amend its regulations on sex offender loitering to align with state law (i.e. Section 653b); (2) approve a settlement agreement settling the Frank Lindsay litigation for a nominal sum; and (3) pursuant to that settlement agreement, temporarily stay enforcement of Lompoc Municipal Code sections and , regulating the residency of registered sex offenders, until such time as the California Supreme Court has issued a final and binding decision in the matter of In Re Taylor. Respectfully submitted, Joseph W. Pannone, City Attorney Lindsay Tabaian, Special Litigation Counsel Attachments: 1) Ordinance No. 1606(14) ( redlined version) 2) Ordinance No. 1606(14) ( final version) 3) Settlement Agreement and Release of Claims