Doe v. Harris

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOHN DOE,  No. 09-17362

Plaintiff-Appellee, D.C. No.

v. 3:07-cv-03585-JL

KAMALA D. HARRIS, Northern District of

Defendant-Appellant. California,

 San Francisco

ORDER

CERTIFYING

QUESTION TO

THE STATE

SUPREME COURT

 OF CALIFORNIA

Filed April 4, 2011

Before: John T. Noonan, Diarmuid F. O’Scannlain, and

Stephen S. Trott, Circuit Judges.

COUNSEL

Peggy S. Ruffra, Supervising Deputy Attorney General of

California, argued the cause for the appellant, and filed the

briefs. Former Attorney General Edmund G. Brown and

Senior Assistant Attorney General Gerald A. Engler were also

on the briefs. Ms. Ruffra’s address is 455 Golden Gate Ave-

nue, Suite 11000, San Francisco, CA, 94102-7004.

Dennis P. Riordan, Riordan & Horgan, argued the cause for

the appellee, and filed the brief. Donald M. Horgan and

Michael S. Romano, Riordan & Horgan, were also on the

4393

4394 DOE v. HARRIS

briefs. These attorneys share the following address: Riordan

& Horgan, 523 Octavia Street, San Francisco, CA, 94102.

ORDER

O’SCANNLAIN, Circuit Judge:

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withdrawn from submission until further order of this Court.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 Cir-

cuit, before which this appeal is pending, certifies to the Cali-

fornia 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 Califor-

nia Supreme Court. If the Supreme Court declines certifica-

tion, we will resolve the issue according to our perception of

California law.

DOE v. HARRIS 4395

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.

III

The statement of facts is as follows.

A

In 1991, the state of California charged the Plaintiff-

Appellee, who is proceeding under the pseudonym “John Doe,”1

1

We have allowed Doe to continue to proceed under a pseudonym

because drawing public attention to his status as a sex offender is precisely

the consequence that he seeks to avoid by bringing this suit. However, no

party has moved to seal the opinions or orders of this Court and, indeed,

we held oral argument open to the public without objection. Moreover,

when Doe moved in the district court to proceed under a pseudonym and

to seal any document revealing his true identity, he stated that he did not

intend to “prevent[ ] the public from observing the proceedings or rulings

of this court.” The Attorney General did move to file the excerpts of

record under seal because “some of the documents contained [therein]

include Doe’s name and other identifying information.” We granted that

motion. But, to the extent that the Attorney General’s motion could be

construed as a request that we seal the instant order, or issue a heavily

redacted version of it, it is denied. Any danger that Doe’s identity could

be deduced from the scant information in the certification order is out-

weighed by the “public interest in understanding the judicial process.”

Hagestad v. Tragesser, 49 F.3d 1430, 1434 (9th Cir. 1995); see also Smith

v. Doe, 538 U.S. 84, 91 (2003) (publishing an opinion containing at least

as much potentially identifying information about a pseudonymous plain-

tiff as the instant case); Doe I v. Otte, 259 F.3d 979, 982-83 (9th Cir.

2001) (same); United States v. Stoterau, 524 F.3d 988 (9th Cir. 2008)

(denying motion to file disposition under seal, citing “the fundamental

importance of issuing public decisions” (internal quotation marks omit-

ted)).

4396 DOE v. HARRIS

with six counts of lewd and lascivious acts upon a child under

the age of fourteen. Doe was charged with three counts of

touching the victim’s buttocks, one count of touching her

breasts, one count of touching her vaginal area, and one count

of putting his tongue in her mouth. The victim, “S.A.,” was

the daughter of Doe’s close friends. Doe molested S.A. over

an eighteen-month period when S.A. babysat Doe’s younger

children, and when she attended a sleepover at his house as

a guest of his daughter. At the relevant time, Doe was in his

forties, and S.A. was just twelve and thirteen years old. If

convicted of these charges, Doe faced a maximum of eighteen

years in prison.

Doe entered into a plea agreement in which he pleaded

guilty to one count of committing a lewd and lascivious act

upon a child, and, in exchange, the State dropped the remain-

ing five counts. This agreement allowed Doe to avoid serving

any time in jail. It provided that the maximum penalties for

Doe’s conviction would be probation, participation in a work

furlough program, fines, and registration as a sex offender

under California Penal Code § 290.

At the time, section 290 provided that “the statements, pho-

tographs, and fingerprints herein required shall not be open to

inspection by the public or by any person other than a regu-

larly employed peace or other law enforcement officer.” Cal.

Penal Code § 290(i) (West 1991). California, like many other

states, has since passed a “Megan’s law,” which allows the

public to access the state’s sex offender registry. Cal. Penal

Code § 290 (West 2011). Pursuant to this law, California now

maintains a website through which members of the public can

obtain the names, addresses, and photographs of the state’s

registered sex offenders. Id. § 290.4. California’s Megan’s

law applies retroactively to sex offenders, such as Doe, who

committed their crimes before the law was passed. Id.

§ 290.023.

DOE v. HARRIS 4397

B

Doe brought suit against then-Attorney General Brown2

under 42 U.S.C. § 1983, alleging a violation of his due pro-

cess right to have his plea agreement honored. Specifically,

Doe claims that his inclusion in the public sex offender web-

site violated the State’s implicit promise that he would not be

subject to future amendments to section 290’s confidentiality

requirement.

The district court heard testimony from the prosecutor and

defense attorneys who were involved in Doe’s criminal case,

as well as from Doe himself. The court concluded that

“[w]hile there were other obvious benefits to Doe” in accept-

ing the plea bargain, such as avoiding prison, “the confidenti-

ality of registration was a material part of the deal as far as

Doe was concerned.” The district court also found that “the

confidentiality provision of Section 290 was critical to Doe’s

decision to plead guilty rather than proceed to trial.” This

finding was based on private discussions which Doe had with

his attorneys, and on Doe’s testimony about his motivations

for pleading guilty.

The only representation that the prosecutor made about sex

offender registration occurred when he was going over the

plea agreement with Doe and his attorneys. One of Doe’s

attorneys had drafted the plea agreement and gave it to the

prosecutor to review. The prosecutor then added the following

phrase by hand in the portion of the agreement labeled “maxi-

mum penalties”: “four years parole, 290 PC registration,

$10,000 restitution fine—$10,000 fine and testing per 290.2

PC.” Doe and his counsel signed their initials beside the addi-

tion to show their acceptance of the new terms. The prosecu-

tor testified that he added the phrase “P.C. 290 registration”

because that statute mandated sex offender registration for

2

The Court has substituted Attorney General Harris as the proper defen-

dant in this action in place of former Attorney General Brown.

4398 DOE v. HARRIS

anyone convicted of the crime of committing a lewd act upon

a child, and the prosecutor did not have the authority to

exempt Doe from that requirement.

The district court determined that “there was no explicit

agreement with respect to registration, except that the law

required it. Thus the Penal Code section—290 P.C. registra-

tion requirement—was handwritten into the change of plea

form by the prosecutor and initialed by Doe and his counsel,”

and “[n]o further elaboration appears.” The court also con-

cluded that “[n]o qualification or reservation of rights pending

future legislative changes was contemplated . . . by either

party.”

From these facts, the district court inferred that “the parties

could only have intended that the contemporary written ver-

sion of the statute was meant to apply.” The court reached this

conclusion because it felt that “one cannot reasonably inter-

pret the language of the plea agreement, which reads ‘P.C.

290,’ to mean [anything] other than compliance with that sec-

tion of the Penal Code, as it was written at the time of the

plea.”

Accordingly, the district court found that publicly disclos-

ing any of Doe’s previously confidential sex offender registra-

tion information would violate the terms of Doe’s plea

agreement, and issued an injunction barring Attorney General

Brown from so disclosing. The Attorney General timely

appealed.

IV

We respectfully submit that the question presented in Part

II requires certification because it poses an unsettled question

of California law which could determine the outcome of this

case.

DOE v. HARRIS 4399

Under the Due Process Clause, criminal defendants have a

right to enforce the terms of their plea bargains enforced. See

Santobello v. New York, 404 U.S. 257, 261 (1971). Plea

agreements are “construed in accordance with state law.”

Buckley v. Terhune, 441 F.3d 688, 690 (9th Cir. 2006). Here,

the district court found that, when Doe pleaded guilty in 1991,

“[n]o qualification or reservation of rights pending future leg-

islative changes was contemplated . . . by either party.”

Accordingly, the question 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.3

The California Supreme Court touched on the question in

Swenson v. File, 475 P.2d 852 (Cal. 1970). There, speaking

about California commercial contracts, the court asserted that

“[t]he parties are presumed to have had existing law in mind

when they executed their agreement.” Id. at 856. The court

explained that “to hold that subsequent changes in the law

which impose greater burdens or responsibilities upon the par-

ties become part of that agreement would result in modifying

it without their consent, and would promote uncertainty in

commercial transactions.” Id.

But, after Swenson, three California Court of Appeal cases

applied the oposite rule to criminal plea agreements. The first

to do so was People v. Acuna, 92 Cal. Rptr. 2d 224 (Ct. App.

3

We have already held that California’s publication of its sex offender

registry does not constitute “punishment” within the meaning of the Ex

Post Facto Clause. See Hatton v. Bonner, 356 F.3d 955, 963-64 (9th Cir.

2004); cf. Smith v. Doe, 538 U.S. 84 (2003) (holding the same for Alaska’s

Megan’s law). We determined that the California legislature’s purpose in

passing Megan’s Law was to protect the public by disclosing truthful

information, not to punish sex offenders. See Hatton, 356 F.3d at 962. We

also concluded that the law was not “ ‘so punitive’ ” in effect as to negate

the legislature’s public safety purpose. Id. at 967 (quoting Smith, 538 U.S.

at 92).

4400 DOE v. HARRIS

2000). Gilbert Acuna pleaded guilty in 1992 to committing a

lewd act upon a child under the age of fourteen, in violation

of California Penal Code § 288. Id. at 226. At the time of

Acuna’s plea, California law allowed him to apply to the

court after his probation ended to have his conviction

expunged. Id. But, in 1997, the legislature amended that law

to prohibit expungement of section 288 convictions. Acuna

claimed that applying the amended statute to him violated his

plea agreement. The court rejected Acuna’s claim, however,

because there was “no express provision in his plea bargain

that mentions expungement,” nor was expungement “clearly

part of the parties’ understanding.” Id. at 228.

The California Court of Appeal held similarly in People v.

Gipson, 12 Cal. Rptr. 3d 478 (Ct. App. 2004). Lonnie Gipson

had pleaded guilty to a felony in 1993. Id. at 480. In 1994, the

California legislature passed the “Three Strikes” law, which

enhanced sentences for those with serious prior felony convic-

tions. In 2001, Gipson was convicted of assault with a deadly

weapon, and received an enhanced sentence under the Three

Strikes law, in part because of his 1992 conviction. Id. Gipson

claimed that the enhanced sentence violated his 1992 plea

agreement which, he argued, “incorporated by reference” the

prior, more lenient, recidivist statute. Id. (internal quotation

marks omitted).

The court rejected Gipson’s contention, holding that “not

only is the existing law read into contracts in order to fix their

obligations, but the reservation of the essential attributes of

continuing governmental power is also read into contracts as

a postulate of the legal order.” Id. at 481 (internal quotation

marks omitted). Ignoring Swenson, the court instead followed

a California case which allowed marriage contracts to be

amended by subsequent legislation. Both types of contracts,

the court reasoned, implicate the public interest, and, there-

fore, are “ ‘deemed to incorporate and contemplate not only

the existing law but the reserve power of the state to amend

the law or enact additional laws for the public good and in

DOE v. HARRIS 4401

pursuance of public policy.’ ” Id. (quoting In re Marriage of

Walton, 104 Cal. Rptr. 472, 476 (Ct. App. 1972)).

The Court of Appeal applied the same rule in In re Lowe,

31 Cal. Rptr. 3d 1 (Ct. App. 2005). There, Lowe pleaded

guilty to second-degree murder in 1985, a crime which carried

a prison term of fifteen years to life. Id. at 3. Under the then-

existing California law, the California Board of Parole (“the

Board”) had sole responsibility for determining the amount of

prison time that Lowe would in fact serve, beyond his mini-

mum term of fifteen years. In 1988, however, the California

voters amended the state constitution, and gave the governor

the power to veto the Board’s parole decisions, even those

regarding prisoners who had pleaded guilty before the consti-

tutional amendment was passed. Id. at 12. In 2002, the Board

found Lowe suitable for parole, but the Governor vetoed that

determination. Id. at 3.

Lowe brought a habeas petition in California state court,

claiming that the application of the 1988 constitutional

amendment to him violated his plea agreement. Id. at 7-8. He

argued that his plea agreement contained an implicit promise

that his parole application would be decided in accordance

with the laws existing at the time of his plea, and that future

legislative changes designed to make parole more difficult to

obtain would not be applied to him. Id. The court rejected

Lowe’s claim, concluding that Lowe’s plea agreement did not

contain a promise that parole procedures “would not change

over time.” Id. at 13 (internal quotation marks omitted).

But the most recent California Court of Appeal case on this

issue, People v. Arata, 60 Cal. Rptr. 3d 160 (Ct. App. 2007),

appears to be in tension with the previous three. In Arata, the

court considered the same issue it decided in Acuna, viz.,

whether it violated the plea bargain of a defendant, who

pleaded guilty to committing a lewd act upon a child, to sub-

ject him to a subsequent law barring expungement of such

convictions. Id. at 161. The court noted that, at the time of

4402 DOE v. HARRIS

Arata’s plea, expungement was available “[i]n any case in

which a defendant [had] fulfilled the conditions of probation.”

Id. at 162 (internal quotation marks omitted). Thus, even

though expungement was not expressly mentioned in Arata’s

plea agreement, the court held that, “[b]y agreeing to give

[Arata] probation, the plea bargain implicitly included the

promise of [expungement] as part of probation.” Id. at 166. In

deciding whether California’s Megan’s Law may be applied

to Doe, it is unclear whether we should apply Swenson and

Arata, on the one hand, or Gipson, Acuna, and Lowe, on the

other. As the answer to this question could determine the out-

come of this case, we pray the California Supreme Court to

accept our certification request.

V

The names and addresses of counsel for the parties can be

found in the counsel listing. See Cal. R. Ct. 8.548(b)(1). If the

Supreme Court of California accepts this request, Attorney

General Harris should be deemed the petitioner. Id.

The Clerk is hereby directed to transmit forthwith to the

California Supreme Court the original and ten copies of this

order, a certificate of service on the parties, and all relevant

briefs and excerpts of record. See Cal. R. Ct. 8.548(d). The

Clerk shall provide additional record materials if so requested

by the Supreme Court of California. See Cal. R. Ct. 8.548(c).

IT IS SO ORDERED.