When California modified its Sex Offender Registration Act to require that those who had been convicted of certain offenses, even those who had already completed their sentence, register for the public Megan’s Law online database, it created a number of issues. Was this an ex post facto violation? Did it violate due process? What about the contractual obligations of the parties per the plea bargain?
John Doe, a registered sex offender, entered a plea deal providing for probation and registration under the terms of Penal Code Section 290 as it existed in 1991 — a requirement to register for a private database only accessible by law enforcement officials.
Since then, the law has been modified twice, first to provide for a publically-accessible information phone line and later, to provide for the Megan’s Law website. Doe sued after the latter requirement was put into place and he was notified that his information would be available online.
The district court issued an injunction prohibiting the attorney general from putting Doe's information online, after finding that the law, at the time of the plea, was what controlled -- not the law as retroactively modified, and that application of the Megan's Law requirement would violate due process. On appeal, the Ninth Circuit certified a question to the California Supreme Court seeking clarification of state law. The latter court clarified their inquiry as:
"Under California law of contract interpretation as applicable to the interpretation of plea agreements, does the law in effect at the time of a plea agreement bind the parties or can the terms of a plea agreement be affected by changes in the law?"
The California Supreme Court noted that their task is limited to this question alone, and the other inherent issues, such as ex post facto, are not addressed here.
On the one hand, there are the basic contractual principles that state that the understanding of the parties at the time the contract was formed control. That implies that the governing statutes at that time control. That implication is supported by the court's holding in Swenson, which stood for the notion that parties to a contract generally do not contemplate that subsequent changes to the law will be incorporated to their existing agreement.
On the other hand, there is also Gipson, a plea bargain case where a change in law increased a sentence retroactively. The court held there that in contracts "infused with a substantial public interest ... such contract or transaction is deemed to incorporate and contemplate not only the existing law but the reserve power of the state to amend the law ..."
How does the court reconcile the two holdings? In Swenson, the changes to the law weren't explicitly meant to apply retroactively, while in Gipson, much like the present changes to SORA, the changes were.
In short, John Doe is out of luck, and retroactive modification of the law won't violate the terms of a plea deal that is silent on the effect of statutory changes.
The dissent, meanwhile, would apply a "meaningful change" standard, where the changes would not apply if they would have affected the defendant's decision to enter into the plea initially.
Note for practitioners: The court goes out of its way to mention that they aren't addressing a situation where the plea explicitly mentions that existing law governs. This agreement was silent as to subsequent changes to the law. Presumably, one could "lock in" present law by expressing such an intent in the written agreement.
- John Doe v. Kamala D. Harris (Cal. Supreme Court)
- Family Feud Leads to Clarification of Juvenile Incompetence Standard (FindLaw's California Case Law Blog)
- Cal. Supreme Court Clarifies Child Molestation Penalty (FindLaw's California Case Law Blog)