Both Sides Ready to Debate Orange County's Pervs-in-Parks Ban Before Appeals Court

Categories: Court, Crime-iny
Thumbnail image for angry-judge-135.jpg
When a panel of three Superior Court judges last month nullified the County of Orange's ordinance that bans registered sex offenders from county parks and recreational areas where children gather, the Orange County District Attorney's office responded it looked forward to, as the judges recommended, the California Court of Appeals taking up the case. Prosecutors got their wish, but the Orange County Public Defender and a law-reform advocate also sound eager to continue the debate over the constitutionality of the county law.

An opening brief from the public defender's office is due at the Santa Ana-based appellate court on Jan. 17.

"If justice is to be served, the Court of Appeals will uphold the decision made by the three-judge panel of the Orange County Superior Court because the ordinance on its face violates both the state and federal constitutions," says Janice Bellucci, president of California's Reform Sex Offender Laws, in a statement. "The ordinance also does not increase public safety because more than 90 percent of the individuals who sexually assault children are family members, teachers, coaches, and clergy, not registered sex offenders."

Bellucci, a Santa Maria attorney, pointed to an October California Department of Corrections and Rehabilitation report that concluded the recidivism rate for registered sex offenders is 1.9 percent.

Registered Sex Offenders Unite: Group Seeking Legislative Reform to Meet at Buena Park Church

Written by District Attorney Tony Rackauckas and county Supervisor Shawn Nelson, the Board of Supervisors adopted the so-called Child Safety Zone ordinance in April 2011. Rackauckas, Nelson, Sheriff Sandra Hutchens, the DA's Chief of Staff Susan Kang Shroeder and other officials then toured Orange County cities recommending their city councils adopt similar laws. Several did just that--and some got dragged into court to defend them.

Federal Lawsuit Challenges Sex Offender Bans in Parks of Four Orange County Cities

Due to fears about the rising legal tab to fight for its ordinance, the city of Lake Forest just killed its law.

Lake Forest Scraps Pervs-in-Parks Ban

The Superior Court panel declared the county's ordinance unlawful on Nov. 15. It is Rackauckas' contention that the decision only applied to Hugo Godinez, the plaintiff who challenged the ordinance after he became the first registrant arrested when he attended a company Cinco de Mayo party in Mile Square Regional Park in Fountain Valley.

Orange County Pervs-in-Parks Ban Violates State Constitution: Judicial Panel

But following the panel's decision and the dismissal of a sex offender's arrest in Irvine, OC Public Defender Scott M. Van Camp maintains all county and city Child Safety Zone ordinances have been deemed unconstitutional. The sheriff's department has indicated it is no longer enforcing the law given the legal limbo.

Perv-in-Park Case Dismissed Against Jean Pierre Nguyen

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Courtesy of OCDA
Hugo Godinez at his booking last year.
It is the Godinez case that is before the appeals court. The Santa Ana resident was convicted in November on one misdemeanor count of failing to register and show proof of residency upon release from incarceration. He received a sentence of 100 days in jail and five years probation. He has been forced to register as a sex offender with the Costa Mesa Police Department since his sentencing for a 2010 misdemeanor sexual battery conviction.

Schroeder, the DA's chief of staff, previously told the Weekly the decision by the Appellate Division of the Superior Court regarding the Godinez case and the county ordinance is part of the normal process of shaping laws in California and that her boss Rackauckas "always viewed this as a long-term battle to protect children from sex offenders, which is part of our duties."

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12 comments
GregDiamond
GregDiamond

I realize that Coker was not the perpetrator of the Weekly's coverage that deserves to be mentioned in the same breath as this article, but is absolutely amazing that there is no mention of Irvine's refusal to enact this ban (due to concerns over its constitutionality) was the basis for the vicious and baseless attacks on Larry Agran for abetting child rapists that arguably lost him the Mayorship. Readers may remember that the groundless nature of this attack in mailers is what led OC DA Tony Rackauckas to comply with Agran's request to record a robocall noting that his supposed attacks on Agran over this had been taken out of context. This is turn has led to a flurry of articles by an irresponsible journalist who had taken sides claiming that Rackauckas and Agran were part of a criminal conspiracy to do mumble-mumble.

The Weekly's scandalous role in this did successfully dislodge the Democrats from Irvine's City Government, which was apparently the main goal, and put enough fear into Rackauckus that he had to -- fittingly for the OC Republican Party -- apologize for telling the truth. OK, guys, you won for now -- as did Steve Choi and Christine Shea. But can you at least NOT sweep under the rug your own role in claiming that these laws were entirely acceptable and therefore the attacks on Agran were legitimate and Rackauckus's defense of the truth was not? Can't you at least mention, in a story like this, your OWN institutional role in affecting public perception of these laws for your own parochial political ends -- and leave this part of our county's very recent political history, that you helped twist to your taste, unmolested?

paullucas714
paullucas714

This whole situation is weird. And even more weird is the lack of such advocacy by the Pub defenders office on the constitutionality of the egregiously zealous prosecutions of medical marijuana providers lie Joe Grumbine.

MatthewTCoker
MatthewTCoker topcommenter

@GregDiamond Irvine did enact a ban, it's just that unlike the county's, which applies to all registered sex offenders, the city's only targeted those who had been convicted of preying on children. But you're right about the Weekly's only goal in existing being to change the Irvine City Council majority from Democrat to Republican. 'Cause, unlike the Donkeys, them perverted Elephants love to par-tay!

GregDiamond
GregDiamond

Facetiously denying that electing Choi over Agran was "the Weekly's only goal in existing" is avoiding the issue of whether it was A goal over this past few months.  Sure, it was not the Weekly's only *goal* in existing.  It wasn't even your paper's "only goal" in this past election.  But it sure was the goal of the person writing this column when it came to Irvine's election.  Feel honest enough this morning to admit it?

Yes, Irvine enacted a ban.  That ban (1) would be found constitutional, unlike the one that the county and many other cities passed, (2) was the basis for the attack on Agran for abetting child molesters by NOT passing the far broader (and probably unconstitutional) ban, and (3) was a prime basis for lots of Weekly stories before and after the election attacking Agran and some of those around him (and some *not* around him, like Rackauckas) by echoing that putrid attack mailer.

So, uh, why wasn't that a pertinent part of the story you just covered, professional journalist?  Has the Weekly's role in this debacle become inconvenient to note?

ocresident
ocresident

@GregDiamond - I am far from confused and not mistaking anything. As to your first point - "Are you saying that Irvine's ban, which (thanks to Agran and his allies) was narrowly tailored to address the actual threat to children, would not be upheld as constitutional?" Yes, that is exactly where things stand now. Please read the Constitution of the State of California, PC 3053.8, the ordinances and the Court Decision regarding the parks ordinances. The ordinances preempt state law. The OC one and the Irvine one and all in between. Prohibiting anyone other than a person on parole for a registerable sex crime against a minor under the age of 14 from entering a park, again, preempts state law and is therefore unconstitutional. Plain and simple. Not impossible that the ruling will be overturned in the coming weeks, but that remains to be seen. The one case of a rso prosecuted for entering a park in Irvine has been dismissed. Perhaps they did not get your memo.

The fact that that the restriction is 'narrowly tailored to address a public safety concern' (real or make believe) comes into play regarding constitutionality in that it is held to be regulatory in nature as opposed to punitive. If it were considered punitive due to its breadth it would be Ex Post Facto punishement and with that, unconstitutional. A whole different type, not the one found by the 3 judges, but unconstitutional nevertheless. Now, personally, I do not see how banning someone not on parole or probation from setting foot in a public place funded by their tax dollars under threat of prosecution for a past deed (going back to the 1940s) is not punishment, but hey, here the courts do not agree with me. Maybe some day.

The second point of your ramblings regarding the Irvine robo call fiasco, I have to rely on news outlet reporting, including the OC Weekly. But here is a quote from the OC Register "Agran got T-Rack to do a robo-call emphasizing that sex offenders were not actually roaming Irvine's parks." (%s) The contention that sex offenders are NOT actually roaming Irvine's parks is diametrically opposed to the presentations given by OCDA personnel in cities up and down Orange County, including Irvine (%s), which imply that the danger from rso is grave indeed and that the ban proposed by the DAs office is all that stands between you and your child being sexually assaulted. Sexually assaulted in the most horrific manner as being 'backed up' by numerous anecdotes of child abuse / murders in the past decades.

The only point where I am, indeed, confused is that I cannot decide - what is it now? Child Molesters / kidnappers / murderers behind every bush and swing set, or they are not actually roaming the parks? Afterall, my childs safety is at stake here.... what I am sure of is that this whole crusade has nothing to do with my child's safety but everything to do with someone's political motives.

I did my best to provide sources. Seriously, look it up. You are pardonend.

GregDiamond
GregDiamond

@GustavoArellano -- I admire you, in some sort of convoluted sense, for three things you do in this comment:

(1) continuing the meme of "Agran's Dirty Ways" despite that, under your editorship, your yappy dog Moxley came up with nothing but insinuation to support his political attacks on Agran to further his (and I guess your) political ends;

(2) that you call me a "laughable" "loser" despite my getting 44.9%%%% of the vote (3rd highest of the 20 defeated State Senate candidates -- go make fun of Jeff Miller, because I did better than he did) and helping to defeat your "Best New Politician" and keep what you now claim to dislike about Costa Mesa from happening in Fullerton; and

(3) your (ironic?) use of the phrase "us adults."  Seriously, man, *that* is a bridge too far for you.

Look, I'm happy to see you continue your drive to become the "go-to-Latino" in Orange County media for white people in LA who never read things that you haven't syndicated -- just hope that KCRW viewers don't fact check you -- but can't you have your Arizona bosses hire a freaking editor to edit some of your more robust bozos here?  Seriously, you're leaving a paper trail!

GregDiamond
GregDiamond

@ocresident If you'll pardon me, you seem to be confused.  Irvine's ban was directed only at those convicted at child molesters.  That's good.  The rest of the cities' (and the county's) bans were directed at anyone on the list, which would cover crimes extending down to public urination.  Are you saying that Irvine's ban, which (thanks to Agran and his allies) was narrowly tailored to address the actual threat to children, would not be upheld as constitutional?  Maybe not, but I'd be surprised.

You may be mistaking two stories.  The Weekly highlighted the attack mailer which tried to lead voters to believe, using an out-of-context quote from the DA -- that Agran had not supported any ban at all.  The Weekly has then gone after the DA for SETTING THE RECORD STRAIGHT in a robocall after Agran confronted him over it, because Job 1 was tarnishing Agran.

I know that this may be hard to believe, but you can look it up in the recent archives.  Your criticism is apt; you just mistake what Irvine did and/or which side of the Rackauckas ruckus Moxley was on.  As I recall, he considered accusing Agran of abetting child molestation by supporting only the less broad (and more constitutional) bill to be just good tough "in-bounds" politics.

Seriously, look it up.

ocresident
ocresident

@GregDiamond - what on earth are you talking about? Quote: "That ban (1) would be found constitutional, unlike the one that the county and many other cities passed,"

The County ban was ruled unconstitutional as it preempts state law. Said state law states provides any person required to register under PC 290 on parole with a conviction against a minor under 14 years is prohibited from entering a public park. While on Parole. Conviction against minor under 14.

The Irvine ordinance - banninng any 290 registrant, whether on parole, probation or not, that has been convicted of a crime against a "child", which is defined as aperson under 18 - preempts state law just like the County ordinance does.

A municipal law cannot trump state law, under the Supremacy Clause of the California Constitution. If it violates that clause it also violates the Constitution. And. can. not. be.

While personally not much a fan of the OC Weekly reporting style (I won't go as far as calling it 'journalism'), in this instance I am very glad that they unearthed the DA's course of action, as it should now be plain to see that the push for these ordinances is entirely politically motivated and has absolutely nothing to do with child safety and protection. On the one hand the OCDA and his office tell City Council after City Council (including Irvine) on the record that the parks are just teeming with child molester ready to snatch your kid and the only way to save your child is to categorically ban everyone ever convicted of a sex related crime going back to the beginnning of time (well, the 1940s), on the other hand, when it fits their agenda, the parks are safe.

As an Orange County resident in a city other than Irvine I call BS! While I could not care less about Irvine city politics I very much care about the questionable actions of the top Law Enforcement Agency in my county of residence.

So, thank you, OCW, for exposing this sordid scheme.

GustavoArellano
GustavoArellano moderator editortopcommenter

@GregDiamond And the Bloviator returns! Actually, loser, our coverage regarding Agran's dirty ways has been ongoing for years, predating your laughable run for office. Now, please, go back to your shit pit with Vernon and leave the serious OC reporting to us adults.

MatthewTCoker
MatthewTCoker topcommenter

@GregDiamond You're absolutely right, Greg: Agran's eventual exit is indeed fabulous news for Irvine, Orange County and the Dark Star.

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