Tuesday, January 14, 2014
Fourth District Court of Appeal Tosses City’s Sex Offender Ordinance
By MICHAEL J. PEIL Staff Writer
The Fourth District Court of Appeal ruled yesterday that state law occupies the field of sex offender restrictions, preempting a city ordinance where the restriction was considered a registration requirement and restriction on daily life.
Div. Three, in an opinion by Richard M. Aronson, affirmed the dismissal of a misdemeanor complaint against JeanPierre Cuong Nguyen. He was charged with violating Irvine Municipal Code §4-14-803, requiring that sex offenders obtain written permission from the city’s police chief before entering a city park and recreational facility.
In determining the relevant field for ascertaining whether state law preempted the ordinance, the court concluded that the state has preempted the field of restrictions on a sex offender’s daily life, not just the geographical restrictions of where a sex offender may travel.
The Legislature, Aronson said, “has enacted a comprehensive statutory scheme regulating the daily life of sex offenders to reduce the risk of an offender committing a new offense…[the statutory scheme] occupies the field and therefore preempts the city’s efforts to restrict sex offenders from visiting city parks and recreational facilities.”
The requirement of written permission, the court held, was a de facto registration mandate. Such a requirement is preempted by state law, especially where the state has long occupied the area of sex offender registration, since 1947, Aronson said.
The district attorney argued that the whole ordinance need not be invalidated because the written permission requirement could be severed from the rest of the city ordinance. The court disagreed, saying that striking the written permission portion from the ordinance would result in an outright ban on sex offenders’ ability to enter parks or recreational facilities, which was not part of the Legislature’s intent.
“An invalid portion of an ordinance is volitionally separable if the remainder of the ordinance reflects a substantial portion of the legislatives body’s purpose in passing the ordinance. Here, allowing the remainder of Section 4-14-803 to stand as an outright ban on sex offenders entering a city park or recreational facility would go beyond Irvine’s intent.”
A court has does not have the power, Aronson concluded, to sever a portion of a city ordinance where to do so would result in rewriting the ordinance to conform to a presumed intention, substantially altering the meaning of the ordinance as originally enacted.
The case is People v. Nguyen SOS 143
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