Doe v Harris

Now see Doe v Harris 7-1-2013 (California Sup Ctr)

1-11-2013 California:

Doe v Harris (Order Granting Preliminary Injunction) No. C12-5713 TEH.
On Appeal see below:

This matter came before the Court on December 17, 2012, on Plaintiffs' motion for a preliminary injunction. Plaintiffs challenge several provisions of the Californians Against Sexual Exploitation Act ("CASE Act" or "Act") that require registered sex offenders to provide certain information concerning their Internet use to law enforcement. Having carefully considered the parties' written and oral arguments, the Court now GRANTS preliminary injunctive relief for the reasons explained below.

On November 6, 2012, California voters approved the CASE Act, which appeared on the ballot as Proposition 35, with approximately 81% of the vote. Ex. D to Intervenors' Req. for Judicial Notice at 1.1 Plaintiffs John Doe, Jack Roe,2 and the non-profit organization California Reform Sex Offender Laws filed this action on behalf of present and future California sex offender registrants the following day, when the Act was to take effect.3 See Cal. Const. art. II, § 10(a). They contend that California Penal Code sections 290.014(b) and 290.015(a)(4)-(6), as enacted by the CASE Act, violate Plaintiffs' First Amendment rights to free speech and free association. They further contend that the provisions are void for vagueness under the Fourteenth Amendment.

California's sex offender registration program is governed by California Penal Code section 290 et seq. The CASE Act added the following items to the list of information registrants must provide "upon release from incarceration, placement, commitment, or release on probation":

(4) A list of any and all Internet identifiers established or used by the person.

(5) A list of any and all Internet service providers used by the person.

(6) A statement in writing, signed by the person, acknowledging that the person is required to register and update the information in paragraphs (4) and (5), as required by this chapter.

Cal. Penal Code § 290.015(a). In addition, items (4) and (5) must be reported as part of the annual registration process. Id. § 290.012(a).

The Act defines "Internet service provider" as "a business, organization, or other entity providing a computer and communications facility directly to consumers through which a person may obtain access to the Internet," except for any "business, organization, or other entity that provides only telecommunications services, cable services, or video services, or any system operated or services offered by a library or educational institution." Id. § 290.024(a). "Internet identifier" is defined as "an electronic mail address, user name, screen name, or similar identifier used for the purpose of Internet forum discussions, Internet chat room discussions, instant messaging, social networking, or similar Internet communication." Id. § 290.024(b).

The CASE Act also added a provision that requires registrants to notify law enforcement within 24 hours of any changes in the Internet information subject to registration:

If any person who is required to register pursuant to the Act adds or changes his or her account with an Internet service provider or adds or changes an Internet identifier, the person shall send written notice of the addition or change to the law enforcement agency or agencies with which he or she is currently registered within 24 hours. The law enforcement agency or agencies shall make this information available to the Department of Justice.

Id. § 290.014(b). This section further requires all registrants to "immediately provide" the required information to law enforcement upon the effective date of the Act. Id.

...(Additional facts are long but interesting, should be reviewed), ...

Accordingly, with good cause appearing for the reasons stated in this order, Plaintiffs' motion for a preliminary injunction is GRANTED. IT IS HEREBY ORDERED that:

1. Defendant Kamala Harris and her officers, agents, servants, employees, and attorneys, and those persons in active concert or participation with her, are enjoined from implementing or enforcing California Penal Code sections 290.014(b) and 290.015(a)(4)-(6), as enacted by the CASE Act.17

2. Defendant Harris shall provide, by personal service or otherwise, actual notice of this order to all law enforcement personnel who are responsible for implementing or enforcing the enjoined statutes or from otherwise collecting registered sex offenders' information. The government shall file a declaration establishing proof of such notice on or before January 28, 2013. Alternatively, the parties may file on or before that date a stipulation and proposed order that local law enforcement will not enforce the enjoined provisions even in the absence of receiving actual notice.

IT IS SO ORDERED.

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On Appeal: No. 09-17362.
We certify to the California Supreme Court the question set forth in Part II of this order. All further proceedings in this case are stayed pending receipt of the answer to the certified question. This case is withdrawn from submission until further order of this Court. The parties shall notify the Clerk of this Court within three days after the court accepts or rejects certification, and again within three days if the court renders an opinion. The panel retains jurisdiction over further proceedings.

I
Pursuant to Rule 8.548 of the California Rules of Court, a panel of the United States Court of Appeals for the Ninth Circuit, before which this appeal is pending, certifies to the California Supreme Court a question of law concerning the interpretation of California plea agreements. The decisions of the Courts of Appeal of the State of California provide no controlling precedent regarding the certified question, the answer to which may be determinative of this appeal. We respectfully request that the California Supreme Court answer the certified question presented below. Our phrasing of the issue is not meant to restrict the court's consideration of the case. We agree to follow the answer provided by the California Supreme Court. If the Supreme Court declines certification, we will resolve the issue according to our perception of California law.

II
The question of law to be answered is:
Whether, under California law, the default rule of contract interpretation is

• (a) that the law in effect at the time of a plea agreement binds the parties, or
• (b) that the terms of a plea agreement may be affected by changes in law.

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