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California’s Megan’s Law Applies Retroactively

California’s Fourth District Court of Appeal has affirmed that the California version of “Megan’s Law” may be retroactively applied to persons convicted of qualifying crimes prior to the statute’s 2004 enactment and subsequent amendments. In so holding, the Court rejected the petitioners’ equitable estoppel and constitutional challenges.

California’s Megan’s Law requires an offender’s information to be placed on a publicly accessible internet site. That law allowed offenders to apply to California’s Department of Justice for an exclusion upon proof of successful completion of probation, which was allowed when “the defendant is the victim’s natural parent, adoptive parent, stepparent, relative, or is a member of the victim’s household who has lived in the victim’s household.”

Effective October 7, 2005, the law was amended to apply when offenders prove they were “the victim’s parents, stepparents, sibling, or grandparent and that the crime did not involve either oral copulation or penetration of the vagina or rectum of either the victim or the offender by the penis of the other or any foreign object.” Effective September 20, 2006, the legislature made the amendment retroactive.

The petitioner became ineligible under the amendment – B.M. because of his crime and G.G. because he was the victim’s uncle. They filed a petition for extraordinary relief that was denied by the trial court.

The Fourth District held that equitable estoppel could not apply, for the petitioners could not meet the elements of that principal. It noted that their crime occurred in the 1980s, and, other than a short-lived exclusion being granted, no change in how they conducted themselves had occurred.

The Court held the petitioners did not have a vested right to the exclusion previously granted them, and that the retroactive application of the law did not violate their right to due process of law. The Court said they failed to cite any authority to suggest there was anything inherent in the exclusions granted them that prohibits modification under constitutional principles. Thus, there is no vested right and a due process analysis is not required.

Next, the Court found the law is not punishment, but is a civil protective law. The U.S. Supreme Court has upheld similar laws, rejecting ex post facto challenges. It also found “no equal protection violation in limiting the exclusion to parents, stepparents, siblings, and grandparents” because those “types of true incest cases…are predicated on a closer familial relationship where the offender is more likely to live with the victim and the recidivism rates are low.”

As the law’s disclosure requirements are based on the fact of previous conviction, rather than current dangerousness, the petitioners have not been deprived of a liberty interest. Finally, the Court held that the fact B.M.’s conviction was dismissed under section 1203.4 does not help him, for that statute affords relief from penalties on felony convictions, not non-penal restrictions.

The lower court’s decision was affirmed. See: G.G. Doe v. California Department of Justice, 173 Cal.App.4th 1095, 93 Cal.Rptr.3d 736, Cal. 4th Dist. Ct. Appeal, 2009.

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Related legal case

G.G. Doe v. California Department of Justice