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Doe v. California Dep't of Justice (Cal. Ct. App. - May 7, 2009)

By Shaun Martin

You pled guilty (or are convicted) to lewd acts upon someone under 16 (or 14), so pursuant to Megan's Law, your name and picture is on California's sex offender website. Because the victim was a family member, you're eligible for probation, to which -- presumably for good reason -- you're sentenced and which you successfully complete. Thereafter, you have your conviction dismissed and expunged under Section 1203.4.

Since you've successfully completed probation, and otherwise meet all the requirements, Megan's Law allows you to get yourself deleted from the web site. Sure, you may still have to register, so the police will know all about you, but at least you won't have to publicly carry the scarlet M (for "Molester") for the rest of your life.

So, a decade-plus after your conviction, after you've done everything that's required, you apply to get yourself taken off, and the California DOJ grants your application. Thank goodness. The nightmare now becomes only the lifetime registration requirement -- reregister every birthday, notify them of every move, etc.

Except for one thing. A month or two after your application is granted, the Legislature amends the statute, and now says (inter alia) that you're only eligible to be taken off the website if you're a parent, stepparent, grandparent, or sibling of the victim. You're an uncle.

But you did your time, right? Plus, your application has already been granted. Surely this is an ex post facto law, right? You can't change the rules to punish someone more once they've done what's required. Or at least this seems a violation of your vested rights, or a violation of equal protection, or something, right?

Nope. We can do what we want to you.

I admit that I'd have thought the ex post facto argument, at least, was a winner. But I agree that under the Supreme Court's 2003 decision in Smith v. Doe, this argument's a loser. Since the Court says that this stuff is "civil", not criminal, so the ex post facto clause doesn't apply.

Mind you, Smith was a close case, with several dissenters. Plus, with Justice Souter (who joined the majority) leaving, and with Rehnquist and O'Connor (also in the majority) now gone, perhaps this holding might not last forever. Who knows, for example, how Chief Justice Roberts would vote? He seems like a thoughtful guy.

Oh, wait a minute. I do. Who was the lawyer who argued the case for the government in Smith? None other than John G. Roberts himself, back when he was at Hogan & Hartson.

Okay. So not even a glimmer of a hope there. Recusal, anyone?

Full post as published by California Appellate Report on May 07, 2009 (boomark / email).