BILL ANALYSIS
AB 1197
Page A
Date of Hearing: April 24, 2007
Counsel: Kathleen Ragan
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Jose Solorio, Chair
AB 1197 (Aghazarian) - As Amended: April 10, 2007
SUMMARY : States that denial or termination of tenancy in
rental housing of a person who has been conviction of the
commission or attempted commission of specified offenses listed
in Penal Code Section 290.46(b)(2) is presumed to protect a
person at risk. Specifically, this bill :
1)States legislative findings and declarations as follows:
a) In balancing the due process rights of sex offenders
against the interests of public security, the Legislature
has previously found that public notification about
released sex offenders furthers the primary government
interest of protecting vulnerable populations from
potential harm.
b) A significant number of sex offenders live in rental
housing.
c) Landlords are prohibited under current law from using
the Internet sex offender database for purposes of housing
or accommodation, except to protect a person at risk.
d) The ability of tenants to enjoy, and of property owners
to provide, safe rental housing in a manner consistent with
the goals and purposes of the Megan's Law sex offender
registration requirement and state civil rights are a
compelling state interest.
2)Specifies the following offenses, the commission or attempted
commission of which constitute a presumption to protect a
person at risk in an eviction or denial of housing action:
a) Kidnapping with the intent to commit rape, sodomy, lewd
or lascivious acts with a child under 14, oral copulation
or forcible acts of sexual penetration [Penal Code Section
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290.46(b)(2)(A)];
b) Kidnapping for ransom, reward or extortion, the intent
to commit rape, sodomy, lewd or lascivious acts with a
child under 14, oral copulation or forcible acts of sexual
penetration [Penal Code Section 290.46(b)(2)(B)];
c) Rape accomplished under specified circumstances,
including when the victim was unable to give consent due to
being unconscious, sleeping, or by menace or act which
shows an intention to inflict an injury upon another [Penal
Code Section 290.46(b)(2)(C)];
d) Rape with a foreign object [Penal Code Section
290.46(b)(2)(D)];
e) Aggravated sexual assault of a child who is under the
age of 14 years and is seven or more years younger than the
perpetrator [Penal Code Section 290.46(b)(2)(E)];
f) Sodomy with a person under 14 years of age and more than
ten years younger than the perpetrator or sodomy
accomplished against the person's will by threats of
retaliation against the victim or some other person [Penal
Code Section 290.46(b)(2)(F)];
g) Lewd or lascivious acts with a child under 14 years of
age with the intent of arousing or appealing to the lust
desire or sexual passions of the person or the child; or
lewd or lascivious acts with a child under 14 years of age
by use of force, violence or duress, or lewd or lascivious
acts by a caretaker upon a dependent person by use of
force, duress, menace, or fear of immediate bodily injury,
provided that act(s) is a felony [Penal Code Section
290.46(b)(2)(G)];
h) Oral copulation with a person under the age of 14 and
more than 10 years younger than the perpetrator or
accomplished against the person's will by means of force or
fear of immediate bodily injury, as specified [Penal Code
Section 290.46(b)(2)(H)];
i) Felony luring of a child for specified sexual acts or
lewd and lascivious acts [Penal Code Section
290.46(b)(2)(I)];
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j) Continuous sexual abuse of a child [Penal Code Section
290.46(b)(2)(J)];
aa) Forcible acts of sexual penetration accomplished against
the victim's will by means of force, violence, duress or
fear of immediate bodily injury, or sexual penetration with
a person under the age of 14 years and more than 10 years
younger than the perpetrator [Penal Code Section
290.46(b)(2)(K)];
bb) Sodomy or sexual intercourse or oral copulation with a
child 10 years of age or younger by a person 18 years of
age or older [Penal Code Section 290.46(b)(2)(L)]; and,
cc) Any person who has ever been adjudicated a sexually
violent predator [Penal Code Section 290.46(b)(2)(M)].
3)Creates a new Evidence Code Section that states "denial or
termination of tenancy of a person who has been convicted of
the commission or attempted commission of any of the offenses
listed in, or who is described in, paragraph (2) of
subdivision (b) of Section 290.46 is presumed to protect a
person at risk."
EXISTING LAW :
1)Defines "presumption" as an assumption of fact that the law
requires to be made from another fact or group of facts found
or otherwise established in the action. States that a
presumption is not evidence. [Evidence Code Section 600(a).]
2)States that except as otherwise provided, a party has the
burden of proof as to each fact the existence or nonexistence
of which is essential to the claims for relief or the defense
that he is asserting. (Evidence Code Section 500.)
3)States that an "inference" is a deduction of fact that may
logically and reasonably be drawn from another fact or group
of facts found or otherwise established in the action.
[Evidence Code Section 600(b).]
4)Provides that except as otherwise provided, evidence of a
trait of a person's character with respect to care or skill is
inadmissible to prove the quality of his conduct on a specific
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occasion. (Evidence Code Section 1104.)
5)Classifies presumptions as either conclusive or rebuttable.
States that every rebuttable presumption is either a
presumption affecting the burden of producing evidence or a
presumption affecting the burden of proof. (Evidence Code
Section 601.)
6)Provides that a statute providing that a fact or group of
facts is prima facie evidence of another fact establishes a
rebuttable presumption. (Evidence Code Section 602.)
7)Defines "presumption affecting the burden of producing
evidence" as a presumption established to implement public
policy other than to facilitate the determination of the
particular action in which the presumption is applied.
(Evidence Code Section 603.)
8)States that the effect of a presumption affecting the burden
of producing evidence is to require the trier of fact to
assume the existence of the presumed fact, unless and until
evidence is introduced which would support a finding of its
nonexistence, in which case the trier of fact shall determine
the existence or nonexistence of the presumed fact from the
evidence and without regard to the presumption. States that
nothing in this section shall be construed to prevent the
drawing of any inference that may be appropriate. (Evidence
Code Section 604.)
9)States that a presumption affecting the burden of proof is a
presumption established to implement some public policy other
than to facilitate the determination of the particular action
in which the presumption is applied, such as the policy in
favor of establishment of a parent and child relationship, the
validity of a marriage, the stability of titles to property,
or the security of those who entrust themselves or their
property to the administration of others. (Evidence Code
Section 605.)
10)Provides that the effect of a presumption affecting the
burden of proof is to impose upon the party against whom the
presumption operates the burden of proof as to the
nonexistence of the presumed fact. (Evidence Code Section
606.)
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11)States that the presumptions established by the Evidence
Code, and all other rebuttable presumptions established by law
that fall within the criteria of Evidence Code Section 603,
are presumptions affecting the burden of producing evidence.
(Evidence Code Section 630.)
12)Specifies that the presumptions affected by Article 4 of the
Evidence Code Section 660 et seq. and all other rebuttable
presumptions established by law that fall within the criteria
of Evidence Section 605 are presumptions affecting the burden
of proof. (Evidence Code Section 550 et seq.)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "AB 1197 brings
much needed relief to the rental housing industry which has
been beset with unintended consequences as a result of online
publication of the Megan's Law database. Because tenants can
easily access information on the database, they frequently
come to owners and demand the eviction of a sex offender whom
they believe lives at the property. Owners' ability to
respond as requested by tenants, however, is limited by state
law.
"The mere fact that an individual is listed on the state's Web
site does not give a rental property owner the right or
discretion to deny housing to the registered sex offender.
Offenders could, and have, argued that denying their rental
application, evicting them, or disclosing their address to
other tenants based upon the information received from the Web
site is unlawful and a violation of state law.<1>
"The Legislature, however, did not close the door completely to
property owners when it created California's public database;
it provided some helpful, although cloudy, exceptions. The
Penal Code allows an owner to utilize the information on the
Web site to 'protect a person at risk or as allowed by any
---------------------------
<1> See, for example, Robert Stellrecht v. Decker (Jan. 15,
1999) Case No. 98HC5I09, County of Orange Superior Court, where
a registered sex offender sought to defend an unlawful detainer
action by arguing that California's Megan's Law had given him
special protections because it did not allow owners to use the
information for purposes of housing.
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other provision of law.' The law, however, does not provide
clarification about the actions a property owner can take.
The law does not clearly define whether an owner is allowed to
protect a 'person at risk' by refusing to rent to a registered
sex offender, evicting a registered sex offender, or providing
information to other tenants in the building about the sex
offender.
"This bill strikes a careful balance between the rights of sex
offenders and all tenants living in rental housing. This bill
does not allow the wholesale denial of tenancy but rather
takes direction from the Penal Code which allows housing to be
denied to protect a person at risk. The only thing this bill
would do is shift the burden to the sex offender to show they
are not a risk instead of placing the burden on the landlord
to show they are a risk. Since the correctional, medical and
psychological communities have not been able to agree on who
poses a risk, the only thing we have to go are legislative
declarations in support of AB 1562 (Alby), Chapter 908,
Statutes of 1996. AB 1562, which authorized law enforcement
to disclose information to the public about sex offenders,
unequivocally stated: 'Sex offenders pose a high risk of
engaging in further offenses after release from incarceration
or commitment, and protection of the public from these
offenders is a paramount public interest.' Since the
Legislature set the baseline finding that sex offenders pose a
risk, the duty should fall on each individual to demonstrate
they are not a risk."
2)Background : According to background information provided by
the author, "Rental housing providers generally have
discretion in selecting and retaining tenants. This
discretion, however, is limited, by various state and federal
laws that prohibit discriminatory rental practices. At the
same time, there has been a tendency to broaden a landlord's
responsibilities for criminal acts committed by third parties
both on and off the leased premises. The California Civil
Code Section 1714 states in pertinent part:
"Everyone is responsible, not only for the result of his or her
willful acts, but also for an injury occasioned to another by
his or her want of ordinary care or skill in the management of
his or her property . . . .
"A rental housing provider may, therefore, be held liable for
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harm to others when the landlord has sufficient control to
obviate the danger but fails to exercise the appropriate care.
[ Uccello v. Laudenslayer (1975) 44 Cal.App.3d 504.] This
same principle applies when evaluating whether to rent to a
sex offender. If a rental housing provider is aware of
potential harm on the property, there is a duty to mitigate
that dangerous condition.
"Existing law creates a tightrope for rental housing providers
who must screen applicants in a manner that protects other
tenants from foreseeable harm - while, at the same time,
avoiding discrimination against certain groups of individuals.
In the context of screening for registered sex offenders, the
state of the law presents a dilemma. If a landlord can be
held liable for harm caused by third parties - should they not
have some ability to prevent the harm?"
3)This Bill Is Vague in Failing to Identify the Type of
Presumption It Creates : By failing to provide the persons
affected with sufficient knowledge of what actions are
required, this bill is confusing to both the registered sex
offenders affected and their representatives. Is the
presumption one affecting the burden of proof? The
presumptions affecting the burden of proof are not expressions
of policy; they are expressions of experience. They are
intended solely to eliminate the need for the trier of fact to
reason from the proven or established fact to the presumed
fact and to forestall argument over the existence of the
presumed fact when there is no evidence tending to prove the
non-existence of the presumed fact.
The presumption of this bill of "protecting a person at risk"
clearly is not an expression of experience because no
generally accepted experience exists that evictions of
registered sex offenders will protect any person. This bill
fails to adequately define "person at risk." Does it mean a
particular other tenant residing in the apartment building or
is the definition more speculative, written to include all
persons residing in the complex? If all tenants of the
apartment complex are "persons at risk" under the terms of
this bill, what scientific or widely accepted experience
exists to justify the creation of such an assumption?
If this bill's presumption intends to be one affecting the
burden of producing evidence, such presumptions are designed
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to dispense with unnecessary proof of facts that are likely to
be true if not disputed. Typically, such presumptions are
based upon an underlying logical inference. As further
detailed below, there exists no underlying logical inference
to justify a presumption that all registered sex offenders
must be evicted to protect other tenants in an apartment
complex. In fact, all of the generally accepted expert
studies have proved the exact opposite of the inference
underlying this bill's presumption; most people victimized by
sex offenders were family members or close friends of the
offender and "stranger danger" is a myth unsupported by
scientific research.
On what basis can the Legislature create a presumption that is
completely unsupported by existing research and common
experience?
4)Overview of Presumptions : There are two basic forms of
presumptions: presumptions affecting the burden of proof and
presumptions affecting the burden of producing evidence. They
are described summarily below:
a) Presumptions Affecting the Burden of Proof : According
to the Law Review Commission report, presumptions affecting
the burden of proof are established in order to carry out
or effectuate some public policy other than, or in addition
to, the policy of facilitation of the trial of actions.
What makes a presumption one affecting the burden of proof
is the fact that there is always some further reason of
policy for the establishment of the presumption. It is the
existence of this further basis in policy that
distinguishes a presumption affecting the burden of proof
from the presumption affecting the burden of producing
evidence.
"Frequently, too, a presumption affecting the burden of proof
will have an underlying basis in probability and logical
inference. For example, the presumption of the validity of
a marriage ceremony may be based in part on the probability
that most marriage ceremonies are valid. An underlying
inference is not necessary. In fact, the lack of an
underlying inference is a strong indication that the
presumption affects the burden of proof. Only the needs of
public policy can justify the direction of a particular
assumption that is not warranted by the application of
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probability and common experience to the known facts." [7
Law Review Commission Reports 1 (1965).]
b) Presumptions Affecting the Burden of Producing Evidence :
A presumption affecting the burden of producing evidence
is a presumption established to implement no public policy
other than to facilitate the determination of the
particular action in which the presumption is applied.
[Evidence Code Section 603.] According to the Law Review
Commission report, "In the absence of statutory
classification, the courts may determine whether a
presumption is a presumption affecting the burden of proof
or a presumption affecting the burden of producing evidence
by applying the standards contained in Evidence Code
Sections 603 and 605.
"Section 603 describes those presumptions that are not based
on any public policy extrinsic to the action in which they
are involved. These presumptions are designed to dispense
with unnecessary proof of facts that are likely to be true
if not disputed. Typically, such presumptions are based
upon an underlying logical inference. In some cases, the
presumed fact is so likely to be true and so little likely
to be disputed that the law requires it to be assumed in
the absence of contrary evidence. In other cases, evidence
of the non-existence of the presumed fact, if any, is so
much more readily available to the party against whom the
presumption operates that he is not permitted to argue that
the presumed fact does not exist unless he is willing to
produce such evidence. In still other cases, there may be
no direct evidence of the existence or non-existence of the
presumed fact, but, because the case must be decided, the
law requires a determination that the presumed fact exists
in light of common experience indicating that it usually
exists in such cases. Typical of such presumptions is that
a mailed letter was received (Evidence Code Section 641)
and presumptions relating to the authenticity of documents.
(Evidence Code Sections 643 to 645.)
"The presumptions [affecting the burden of proof] are not
expressions of policy; they are expressions of experience.
They are intended solely to eliminate the need for the
trier of fact to reason from the proven or established fact
to the presumed fact and to forestall argument over the
existence of the presumed fact when there is no evidence
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tending to prove the non-existence of the presumed fact."
[7 Law Review Commission Reports 1 (1965).]
A presumption affecting the burden of producing evidence is
merely a preliminary assumption in the absence of contrary
evidence; i.e., evidence sufficient to sustain a finding of
the non-existence of the presumed fact. If contrary
evidence is introduced, the trier of fact must weigh the
inferences that gave rise to the presumption against the
contrary evidence and resolve the conflict. For example,
if a party proves that a letter was mailed, the trier of
fact is required to find that it was received in the
absence of any believable contrary evidence. However, if
the adverse party denies receipt, the presumption is gone
form the case. The trier of fact must then weigh the
denial of receipt against the inference of receipt arising
from proof of mailing and decide whether or not the letter
was received.
"If a presumption affecting the burden of producing evidence
is relied on, the judge must determine whether evidence is
sufficient to sustain a finding of the non-existence of the
presumed fact. If there is such evidence, the presumption
disappears." [Morgan, "Basic Problems of Evidence",
pp.36-38 (1957).]
5)Specifics : "A presumption affecting the burden of producing
evidence is a presumption established to implement no public
policy other than to facilitate the determination of the
particular action in which the presumption is applied."
(Evidence Code Section 603; see 53 Cal. L. Rev. 1445.) A
number of presumptions falling within this class are listed in
Evidence Code Section 630 et seq.
"Presumptions are "expressions of experience," designed to
dispense with unnecessary proof. 'Typically, such presumptions
are based on an underlying logical inference.
a) "In some cases, the presumed fact is so likely to be
true and so little likely to be disputed that the law
requires it to be assumed in the absence of contrary
evidence.
b) "In other cases, evidence of the nonexistence of the
presumed fact, if there is any, is so much more readily
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available to the party against whom the presumption
operates that he is not permitted to argue that the
presumed fact does not exist unless he is willing to
produce such evidence.
c) "In still other cases, there may be no direct evidence
of the existence or nonexistence of the presumed fact; but,
because the case must be decided, the law requires a
determination that the presumed fact exists in light of
common experience indicating that it usually exists in such
cases." [Law Review Commission, Comment to Evidence Code
Section 603. See also Gillette v. Workers Compensation
Appeals Board , (1971) 20 Cal. App.3d 312, 319, (quoting the
text); BAJI (8th ed.), Appendix C, p. 491.]
According to Cotchett, California Courtroom Evidence, Section
14.01, the burden of producing evidence is defined at
Evidence Code Section 550 as follows:
i) "The burden of producing evidence as to a particular
fact is on the party against whom a finding on that fact
would be required in the absence of further evidence.
ii) "The burden of producing evidence as to a particular
fact is initially on the party with the burden of proof
as to that fact."
Evidence Code Sections 603, 604, and 630 et seq. codify
presumptions affecting the burden of producing evidence.
Generally, they place the burden of producing evidence on
particular issues on the party who has better access to the
data. [Haft v. Lone Palm Hotel , (1970) 3 Cal 3d 756
(burden is on motel owner who failed to post warning and
provide lifeguard at pool); People v. Coffey (1967) 67 Cal
2d 204 (state has burden of proving constitutionality of
prior convictions elsewhere).]
"When one party has the burden of producing evidence the
other party does not have to produce further evidence until
the party with the burden produces sufficient evidence to
meet that burden." [People v. Zavala (1983) 147 Cal. App.
3d 429.] Applying this holding to the presumption created
by this bill, the registered sex offender who is a
defendant in an eviction action need not produce any
evidence until the landlord (who has the burden of
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producing at least a preponderance of evidence that the sex
offender tenant is a risk) produces sufficient evidence to
meet his or her burden of proof. Absent individualized,
personal actions directed at another tenant or group of
tenants, what possible evidence could the landlord produce
to meet his or her burden of producing sufficient evidence?
"In a hearing on the termination of the parent-child
relationship, the burden of proof by a preponderance of the
evidence is with the party seeking to terminate the
relationship." [ In re Rose Lynn G . (1976) 57 CA3d 406.
See Cotchett, California Courtroom Evidence , 1-14, Section
1401.] Similarly, in an action seeking to terminate a
legal relationship of landlord and tenant, the burden of
proof is with the party seeking to terminate the
relationship; i.e., the landlord.
6)Purpose and Function of Presumptions : The view accepted by
most courts [see Morgan, Presumptions, 10 Rutgers L. Rev. 512
(1956) and adopted by the American Law Institute's Model Code
of Evidence] is that a presumption is a preliminary assumption
of fact that disappears from the case upon the introduction of
evidence sufficient to sustain a finding of the nonexistence
of the presumed fact. Under this view, a presumption merely
reflects the judicial determination that the same
conclusionary fact exists so frequently when the preliminary
fact exists that once the preliminary fact is established
proof of the conclusionary fact may be dispensed with unless
there is actually some contrary evidence. (Law Revision
Commission Comments 1965.)
This is an important point. A presumption is merely a
preliminary assumption of fact that disappears from the case
once evidence is introduced to prove the non-existence of the
presumed fact. Thus, under the provisions of this bill, once
the tenant introduces evidence that he or she does not pose a
risk, the presumption of protection of persons at risk
disappears from the case. Such evidence could be in the form
of testimony as to conduct, expert opinion from a psychologist
or psychiatrist, documentary evidence of 40 years of a
crime-free existence, etc.
7)The Classification of Presumptions in California Evidence
Code : "The fact is that presumptions are created for a
variety of reasons, and no single theory or rationale of
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presumptions can deal adequately with all of them. Hence, the
Evidence Code classifies all rebuttable presumptions as
either: (a) presumptions affecting the burden of producing
evidence or (b) presumptions affecting the burden of proof.
(See, e.g., Law Revision Comments 1965.)
Evidence Code Sections 603 and 605 set forth the criteria by
which the two classes of rebuttable presumptions may be
distinguished, and Sections 604, 606, and 607 prescribe their
effect. Articles 3 and 4 (Sections 630-667) classify many
presumptions found in California law; but many other
presumptions, both statutory and common law, must await
classification by the courts in accordance with the criteria
contained in Evidence Code Sections 603 and 605.
8)Presumption Affecting the Burden of Producing Evidence : As
succinctly stated by one California appellate court,
"Presumptions affecting the burden of producing evidence are
'not expressions of policy; they are expressions of
experience. They are intended solely to eliminate the need
for the trier of fact to reason from the proven fact or
established fact to the presumed fact and to forestall
argument over the existence of the presumed fact when there is
no evidence tending to prove the non-existence of the presumed
fact. (See California Law Review Commission; Deering's
Annotated Evidence Code Section 603, p. 247.)" [ Rancho Santa
Fe Pharmacy, Inc. v. Seyfert , 219 Cal. App. 3d 875, 882 (4th
District Court of Appeal 1990).]
According to the Witkin Treatise on California Evidence, "The
effect of a presumption affecting the burden of producing
evidence is to require the trier of fact to assume the
existence of the presumed fact unless and until evidence is
introduced which would support a finding of its non-existence.
If evidence is introduced of the fact's non-existence, the
trier of fact shall determine the existence or non-existence
of the presumed fact from the evidence and without regard to
the presumption.
"Such a presumption is merely a preliminary assumption in the
absence of contrary evidence; i.e., evidence sufficient to
sustain a finding of the non-existence of the presumed fact.
If contrary evidence is introduced, the trier of fact must
weigh the inferences giving rise to the presumption against
the contrary evidence and resolve the conflict.
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"For example, if a party proves a letter was mailed, the trier
of fact is required to presume the letter was received in the
absence of any believable contrary evidence. However, if the
adverse party denies receipt, the presumption is gone from the
case. The trier of fact must then weigh the denial of receipt
against the inference of receipt arising from proof of mailing
and decide whether or not the letter was received." [1
Witkin, California Evidence, Burden, Section 55.]
If a presumption affecting the burden of producing evidence is
relied on, the judge must determine whether there is evidence
sufficient to sustain a finding of the non-existence of the
presumed fact. If there is such evidence, the burden
disappears . . . . If there is not evidence sufficient to
sustain a finding of the non-existence of the presumed fact,
the judge should instruct the jury concerning the presumption:
If the basic fact from which the presumption arises is
established so that the existence of the basic fact is not a
question of fact for the jury, the judge should charge the
jury that the presumed fact is also established.
"If the basic fact is a question of fact for the jury, the judge
should charge the jury that, if it finds the basic fact, the
jury must also find the presumed fact. [ Slater v. Kehoe
(1974) 38 Cal. App. 3d 819, 832. See also Law Review
Commission Comment to Evidence Code Section 604; BAJI (8th
Edition, Appendix C, p 491). 1 Witkin, California Evidence,
Burden, Section 55.]
9)Presumption Does Not Shift the Burden of Proof : "In all civil
actions not otherwise provided for by [law] a presumption
imposes on the party against whom it is directed the burden of
going forward with evidence to rebut or meet the presumption,
but does not shift the burden of proof in the sense of the
risk of non-persuasion, which remains throughout the trial on
the party on whom it was originally cast." (See 1 Mueller &
Kirkpatrick, Federal Evidence 2d , Section 61 et seq.; 9 U.C.
Davis L. Rev. 647, 655; 31 U.C.L.A. L. Rev. 1101.) "In civil
actions and proceedings, the effect of a presumption
respecting a fact which is an element of a claim or defense as
to which the State supplies the rule of decision is determined
in accordance with State law." (1 Mueller & Kirkpatrick,
Federal Evidence 2d , Section 74 et seq. 1 Witkin, California
Evidence , Burden, Section 51.)
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If this bill establishes a presumption affecting the burden of
proof, it must reflect the general experience that all
registered sex offenders who are either denied rental housing
or evicted from rental housing are subjected to such action
due to an expression of legislative experience that all
evictions of persons in this class are done to protect persons
at risk. As stated in Rancho Santa Fe Pharmacy, Inc. v.
Seyfert , supra, at p. 882, "It is difficult to conceive of any
public policy concern or accepted, established practice that
would support such a presumption. Like all other tenants,
registered sex offenders can be evicted for a variety of
reasons, both legitimate and illegitimate ones. Thus, an
African American registered sex offender may be denied housing
due to his or her race, not to protect a person at risk. In
fact, this country has a long history of racial discrimination
in housing, leading to the enactment in 1968 of the Federal
Fair Housing Act [and its counterpart, the California Fair
Employment and Housing Law. (FEHA)]."
Similarly, a registered sex offender may be evicted because he
or she has children, not to protect a person at risk. The
difficulties of persons with children seeking rental housing
are well-documented in case law under FEHA. It is
unreasonable to proffer the argument that the presumption
stated in this bill is an expression of real-world,
legislative experience or public policy.
10)Evidence Code List of Presumptions Is Not Exclusive : The
classification scheme contained in the Evidence Code follows a
distinction that appears in the California cases. "The
Evidence Code clarifies the law relating to presumptions by
identifying the distinguishing factors, and it provides a
measure of certainty by classifying a number of specific
presumptions. The list of presumptions in this article is not
exclusive. Other presumptions affecting the burden of
producing evidence may be found in other codes. Others will
be found in the common law. Further presumptions may be added
by judicial or legislative action." [Cal Law Rev Com Comment.
See, generally, 1-15 Cotchett, California Courtroom Evidence
Section 15.15 (Copyright 2006, Matthew Bender & Company,
Inc.).]
For example, a rebuttable presumption of a revocation of a will
is not expressly categorized in the Evidence Code so its
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classification is left to the courts which have determined
that it is a presumption affecting the burden of producing
evidence, existing only until rebutted by substantial
evidence. [ Estate of Obernolte (1979) 91 CA3d 124.] In the
Obernolte case, the Court stated, "The rebuttable presumption
of revocation of a will is not a statutory presumption, but is
instead a common law or judicially originated presumption.
[See Estate of Bristol (1943) 23 Cal.2d 221, 234-237 (dis.
opn. of Traynor, J.); In the Matter of the Estate of Hartman
(1977) 563 P.2d 569, 571-573 ; Witkin, Cal. Evidence (2d ed.
1966) Section 259, p. 221.] It is in reality a double
presumption. Destruction of the will is presumed from its
disappearance and revocation is presumed from its
destruction." (Citations omitted.)
11)Judicial Determination as to the Proper Classification of
Presumptions : In a number of reported cases, the parties have
disagreed as to the effect of a particular presumption, with
one party arguing that it is a presumption affecting the
burden of producing evidence; and the other arguing that it is
a presumption affecting the burden of proof. [See, e.g.,
Dooley's Hardware Mart v. Food Giant Markets, Inc., 21 Cal.
App. 3d 513 (2d District Court of Appeal 1971).] After a
lengthy analysis of the differences in the presumptions'
respective burdens, the appellate court determined that the
statutory presumption did not apply, and therefore found that
the burden of proof rested on the defendants by reason of the
application of a rebuttable presumption of wrongful intent.
(Id. at p. 545.)
The courts have not necessarily been consistent in their
determinations of judicial presumptions. For example, the
courts have at times held that presumptions do not affect the
burden of proof. [ Estate of Eakle, 33 Cal. App.2d 379, (1939
(presumption of undue influence); Valentine v. Provident
Mutual Life Ins. Co. , 12 Cal. App.2d 616 (1936) (presumption
of death from seven years' absence). At other times, however,
the courts have held that certain presumptions do affect the
burden of proof. [ Estate of Nickson, 1 87 Cal. 603 (1921 )
("clear and convincing proof" required to overcome presumption
of community property); Estate of Walker , 180 Cal. 478 (1919)
("clear and satisfactory proof" required to overcome
presumption of legitimacy).] The cases have not, however,
explicitly recognized the distinction, nor have they applied
it consistently. [Compare Estate of Eakle, supra (presumption
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of undue influence does not affect burden of proof), with
Estate of Witt , 198 Cal. 407, 245 Pac. 197 (1926) (presumption
of undue influence must be overcome with "the clearest and
most satisfactory evidence").]
12)Equal Probability Doctrine : Presumptions may be rebutted by
showing that two sets of facts relating to the issue presumed
are equally probable. In Estate of Bristol , supra, 23 Cal.2d.
at pages 224-225, the court said that "this presumption could
be rebutted by evidence showing that 'it is equally probable
(1) that the will was destroyed by another person than the
decedent, or (2) that the act was not done with an intention
to revoke the instrument.' (Italics in original.) Equal
probability does not satisfy a burden of proof, but it does
satisfy a burden of producing evidence. This is yet another
reason for clarity in statutory language creating
presumptions.
"Equal probability does not satisfy a burden of proof; it does,
however, satisfy a burden of producing evidence. [See
Evidence Code Sections 115 and 550 (a).] In other words, the
effect of the rebuttable presumption of revocation of a will
is prima facie only; it exists only until rebutted by
substantial evidence. [See Betts v. Jackson (N.Y. 1830) 6
Wend. 173, 182-183.]" From this holding, it can be assumed
that a rebuttable presumption ceases to exist when substantial
evidence has been produced contrary to the presumed fact.
The Obernolte Court found that "there is substantial evidence in
support of the challenged key finding of equal probability."
Following an extensive discussion of presumptions and equal
probability, the Court found that the presumption of
revocation was rebutted by substantial evidence, and supported
by the equally significant finding of equal probability.
stating, "This finding is a carefully drawn finding. It is
conditional in form because an equal probability did exist
that if the decedent's will was destroyed, this act was done
by someone other than the decedent . . . . (Id.)
Although this bill is unclear as to the type of presumption it
proposes to legislatively create, that presumption (that a
refusal to house or to evict a registered sex offender was
done to 'protect a person at risk') is subject to rebuttal by
the equal probability doctrine; i.e., that it was equally
probable that the housing action was taken for an entirely
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different, but equally probable, reason (such as to evict
protected classes of people, or to establish a rental building
as one that rents only to a certain "class" of people (such as
those who are of Northern European background, born in the
United States, etc.) or to circumvent local rent control
ordinances.
Additionally, with respect to this bill, a presumption as to
evictions for the purpose of protecting a person at risk is
not expressly categorized in the Evidence Code so its
classification as to the type of the presumption would also be
left to the courts to decide. Appellate courts have stated
that they "must determine whether a public policy concern
underlies [the presumption in question.]" [ Rancho Santa Fe
Pharmacy, Inc. v. Seyfert , 219 Cal. App. 3d 875, 882 (4th
District Court of Appeal 1990).] That court stated, "To our
knowledge no California case identifies such a public safety
concern. The lack of authority is not completely surprising.
We have difficulty conceiving of any. We think [the
Section's] presumption exists because the Legislature probably
thought it was experientially sound. It is logically founded
on the recognition that, in most cases, when there is a
writing, there is consideration. [The applicable Section]
therefore merely relieves the party producing the written
document of the need to make the initial showing on what in
most cases will be a non-issue, i.e., consideration.
"We also note that [this section] involves the debtor-creditor
relationship. This fact is significant since the Legislature
has determined a number of presumptions arising from the
debtor-creditor relationship affect the burden of producing
evidence. For example, the presumption that money delivered
to a person was owed to him or her is one affecting the burden
of producing evidence. [Evidence Code Section 631.] Also
affecting this burden is the presumption that an obligation in
the creditor's possession has not been paid. [Evidence Code
Section 635.] In cases giving rise to these presumptions,
then, the creditor retains the burden of proving the presumed
fact when the debtor produces sufficient evidence to call the
validity of the presumption into question." ( Rancho Santa Fe
Pharmacy , supra, at p. 882.)
The Rancho Santa Fe Court stated "as the Law Review Commission's
comments to [Evidence Code] Section 603 make clear,
presumptions affecting the burden of producing evidence are
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'not expressions of policy; they are expressions of
experience. They are intended solely to eliminate the need
for the trier of fact to reason from the proven fact or
established fact to the presumed fact and to forestall
argument over the existence of the presumed fact when there is
no evidence tending to prove the non-existence of the presumed
fact. See California Law Review Commission; Deering's
Annotated Evidence Code Section 603, p. 247."
13)This Bill Contradicts Provisions of Existing Law : Existing
law states that no information on the sex offender registry
may be used for any of eight specified purposes. "The use of
any information that is disclosed pursuant to this section for
purposes relating to any of the following is prohibited [Penal
Code Section 290.46)l)(2)]:
a) Health insurance.
b) Insurance.
c) Loans.
d) Credit.
e) Employment.
f) Education, scholarships or fellowships.
g) Housing or accommodations.
h) Benefits, privileges or services provided by any
business establishment.
If AB 1197 is enacted, it is likely to result in the refusals
to house, or evict, registered sex offenders who were
discovered to be on the Megan's Law database. It will be
difficult, and very expensive, for an evicted registered sex
offender, to fight his or her eviction at the trial and
appellate court levels in an attempt to prevail on the
rebuttal of a Legislative presumption that the eviction was to
protect a person at risk. Civil trials and appeals can take a
matter of months to years to reach conclusion. During that
time, the registered sex offender who was evicted is most
likely to be homeless or living in substandard housing.
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Such eviction is clearly an action taken relating to the
purpose of "housing or accommodations" pursuant to Penal Code
Section 290.46. Therefore, the presumption created by this
bill conflicts squarely with the provisions of Penal Code
Section 290.47(l)(2)(G). Until an appellate court resolves
this conflict between the Penal Code and Evidence Code, a
landlord violating this provision of the Penal Code would be
liable for the specified fines and penalties.
14)Purpose of Public Access to the Megan's Law Information via
the Internet: According to the author of AB 1184 (Spitzer),
of the 2003-04 Legislative Session, "The purpose of Megan's
Law is to provide the public with information that will allow
them to protect themselves and their families from convicted
sex offenders. It can only be successful when the public
knows that information. [O]ur system does not treat
dissemination of truthful information in furtherance of a
legitimate governmental objective as punishment. The Court
rejected the argument that dissemination of this information
on the Internet was overbroad and that this constituted
punishment."
Many other bills dealing with Megan's Law repeated similar
statements about the importance of providing the public with
information that will allow them to protect themselves and
their families. Megan's Law was placed on the Internet as an
instrument that would provide parents with knowledge in order
to take whatever protective action deemed necessary. Since
2005, Megan's Law has been on the Internet and all of this
knowledge has been in a more accessible public realm. If the
arguments of 2003 and 2004 were to be believed, the necessary
knowledge is now being provided in the most accessible manner
possible.
However, in 2007, providing parents with knowledge is apparently
not sufficient. This bill apparently deems it necessary to
take a much larger, further step of enacting a legislative
presumption that violation of Penal Code 290.46(l)(2) is
necessary to protect a person at risk. Upon what assumptions
or substantiated inferences are this new legislative
presumption based?
15)Do All Registered Sex Offenders Present a Risk to Some
Unidentified Child of a Tenant in a Rental Housing Project ?
The appellate courts considering presumptions discuss public
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policy concerns based on sound experience; i.e., a fact is
presumed based on widely accepted experience that there is, in
fact, no evidence to disprove the existence of the presumed
fact. It appears likely that this bill's presumption would
fail an appellate challenge based upon the logic of the
presumption, as all of the generally accepted, peer-reviewed
studies of recidivism by sex offenders reveal that sex
offenders re-offend at a far lesser rate than the recidivism
rate of all felons. Even the United States Department of
Justice (US DOJ), Bureau of Justice Statistics, states on its
Internet Web site that the recidivism rate of sex offenders is
5.3%.
According to the US DOJ, "The study represents the largest
follow-up ever conducted of convicted sex offenders following
discharge from prison and provides the most comprehensive
assessment of their behavior after release." Highlights
include the following: Within 3 years following their
release, 5.3% of sex offenders (men who had committed rape or
sexual assault) were rearrested for another sex crime."
[http://www.ojp.usdoj.gov/bjs/abstract/rsorp94.htm.]
Other larger studies which followed released sex offenders for a
longer period of time had similar findings. Most of the
studies noted that family members and family friends were the
most likely persons to sexually assault a child, not a
stranger. According to the Center on Sex Offender Management
(CSOM), a project of the US DOJ, the myth is that "most sexual
assaults are committed by strangers." The fact, however, is
that "most sexual assaults are committed by someone known to
the victim or the victim's family, regardless of whether the
victim is a child or an adult.
"As to adult victims, statistics indicate that the majority of
women who have been raped know their assailant. A 1998
National Violence Against Women Survey revealed that among
those women who reported being raped, 76% were victimized by a
current or former husband, live-in partner, or date (Tjaden
and Thoennes, 1998)." Also, a Bureau of Justice Statistics
study found that nearly 9 out of 10 rape or sexual assault
victimizations involved a single offender with whom the victim
had a prior relationship as a family member, intimate, or
acquaintance (Greenfeld, 1997).
As to child victims, "Approximately 60% of boys and 80% of girls
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who are sexually victimized are abused by someone known to the
child or the child's family (Lieb, Quinsey, and Berliner,
1998). Relatives, friends, baby-sitters, persons in positions
of authority over the child, or persons who supervise children
are more likely than strangers to commit a sexual assault."
[http://www.csom.org/about/about.html .]
According to a well known professor and author on the subject of
sex offenders, "There is no evidence, however, that such laws
are effective in reducing recidivistic sexual violence. On
the other hand, such laws aggravate the scarcity of housing
options for sex offenders, forcing them out of metropolitan
areas and farther away from the social support, employment
opportunities, and social services that are known to aid
offenders in successful community re-entry." (Minnesota
Department of Corrections, 2003. Jill S. Levenson, Ph.D, "Sex
Offender Residence Restrictions. A Report to the Florida
Legislature", October 2005.)
16)Given the Relatively Low Recidivism Rate of Sex Offenders
Combined with the Myth of "Stranger Danger", Is There A
Reliable Experiential Basis for the Presumption Established by
this Bill ? As discussed above, the courts have considered
presumptions and their validity in terms of broad public
policy and widely accepted acts of common experience. Because
there is no factual basis for assuming that all sex offenders,
or the sex offenders listed on Megan's Law by residence
address, present a danger to all children they may encounter,
there is little factual basis for the legislative creation of
a presumption that what may well be an otherwise unlawful
eviction was done to protect a person at risk. This is
particularly true in view of the fact that the "person at
risk" is unidentified and presumably consists of all of the
children in the apartment complex. This is true even in the
case(s) of sex offenders whose crimes were committed 40 years
ago and the victims were not children but adult men or women
in a then current or previous relationship with the offender.
In the absence of widely accepted acts of common experience as
opposed to widely-accepted false beliefs about sex offenders
and recidivism, there is no basis for the establishment of a
presumption that all of the specified sex offenders may be
denied housing, or evicted from their current housing, to
protect an unidentifiable person at risk. Moreover, this
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presumption, if established, would be virtually impossible for
a sex offender to rebut. Since the "person at risk" is
unidentified and unidentifiable, there is no way for a
registered sex offender to provide sufficient evidence that he
or she poses no risk to any person any where in or near the
apartment complex from which he or she is being evicted
17). Does This Bill Provide a Legal Mechanism for Pretextual
Housing Discrimination ? April of each year is designated as
"Housing Discrimination" month; the Federal Government and
state and local agencies expend resources during April to
educate the public as to the subtleties of housing
discrimination and to advise people who may have been victims
of this illegal act where to go to obtain assistance. The
fact that a "Housing Discrimination Month" is still needed,
almost 40 years after the passage of the Federal Fair Housing
Act [ 42 U.S.C. 3601-3631 ] serves to remind all citizens
that housing discrimination arising from racial and ethnic
hatred and biases remains a serious problem affecting
thousands of people every year.
In housing discrimination cases if a person proves that he or
she is a member of a protected class, the burden of proof
shifts to the housing owner or lessor to demonstrate a
legitimate, reason for the action alleged to have been
discriminatory. Once the legitimate reason has been
pronounced, the burden shifts back to the person complaining
of discrimination to prove that the asserted reason was mere
pretext, a stated legal reason, or untrue for taking a housing
action in violation of the anti-discrimination laws.
This burden-shifting analysis was first announced by the United
State Supreme Court in an employment discrimination case, but
has subsequently been applied to housing discrimination cases
as well. [ See, e.g., McDonnell Douglas Corp. v. Green , 411
U.S. 792 (1973.) Soules v. United States Department of
Housing and Urban Development , 967 F. 2d 817, 822 (2nd Circuit
1992); Cleveland v. Caplaw Enterprises , 448 F. 3d 518 (2nd
Circuit 2006).]
18)Pretextual Defenses Are Well Known to Owners and Lessors of
Residential Real Property : In a Ninth Circuit case arising
out of housing discrimination by a landlord in San Rafael,
California, the Court stated, "The full record indicates,
among other things, that [the landlord] 1) knew that it was
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illegal to discriminate on the basis of race; 2) treated Fair
Housing's African-American testers less favorably than its
white testers; 3) told a tester and other tenants that Combs
wanted an all-white building; 4) used offensive and racially
derogatory language when telling several tenants that he did
not want to rent to African-Americans; 5) and told one tenant
that he could use the pretext of bad credit to refuse to rent
to African-Americans." [ Fair Housing of Marin v. Combs,
d.b.a. Waters Edge Apartments , 285 F. 3d 899 (9th Circuit
2002); cert. denied 537 U.S. 1018 (2002).]
It is clear from the Water's Edge Apartments case that owners
and lessors of residential real property are well aware of
their opportunity to attempt to use an untruthful reason for
denial of housing as a pretext for their action. While the
defendant in the Water's Edge case chose the pretext of "bad
credit", it is noted that this case occurred in 2000 before
the concept of a legislatively approved presumption which
would support unlawful discrimination had been introduced.
Why would this owner use the pretext of "bad credit" if the
pretext of "protection of a person at risk" was not only
available but also approved by California's legislature?
This is of concern not only to racial and ethnic minority
applicants and tenants, but to all of the protected classes.
All of the registered sex offenders covered by this bill would
be at immediate risk of eviction if they are a member of a
protected class. (FEHA. Government Code Section 12900 et.
seq.) provides protection from harassment or discrimination in
housing because of race, color, religion, sex, sexual
orientation, marital status, national origin, ancestry,
familial status, source of income, and disability.
Under FEHA, the remedies available for housing discrimination
include the sale or rental of the housing accommodation;
elimination of the discriminatory practice; policy changes;
out-of-pocket expenses; actual damages, including damages for
emotional distress; civil penalty (up to $10,000); reasonable
accommodation; and, if the case is pursued in court, civil
remedies are identical, with one exception: in court, the
plaintiff may be awarded unlimited punitive damages, as well
as the payment of his or her attorney's fees and other court
costs.
The Federal Fair Housing Act (42 U.S.C. Section 3601 et seq.)
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prohibits discrimination on the basis of race, color,
religion, sex, familial status, or national origin. (42
U.S.C. Section 3604.)
A rental housing owner or landlord who may have hesitated to
violate state and/or federal laws prohibiting discrimination
in housing, due to the potential exposure to large damage
awards, may, if this bill passes, feel free to discriminate
against anyone who is a member of a protected class and also
happens to be on the specified Megan's Law list, knowing that
he or she can cover a discriminatory action by using the
pretext of the legislatively approved presumption that all
actions are done to protect persons at risk.
19)Reasons for Pretext Other Than Discrimination Against
Protected Class Members : This bill also provides what can
only be termed a gift to owners of rental property in areas in
which the rents are controlled by local ordinance. In cities
such San Francisco, Berkeley, Santa Monica, and many others,
an owner is precluded from raising the rent on a particular
unit to market level until the resident inhabiting the unit
moves out. Many long-term tenants pay rents that are many
hundreds of dollars per month lower than that which the market
would support.
In cities such as San Francisco, which is home to many
registered sex offenders, landlords would suddenly have the
potential to evict all of them and upon re-renting the units
raise the rent to market level and achieve a corresponding
unexpected gift of far greater profits than previously
realized. The likelihood of widespread evictions in tight
rental markets with rent control appears to be inevitable.
Although it is speculation, it is likely that the rate of sex
offender evictions in rental markets with a high vacancy rate
would be far lower.
20)Shifting of the Burden of Proof in Civil Actions : It is
interesting to note that many of the groups in opposition, who
are professionals in the field of rental housing, appear to
naturally assume that the presumption of protecting a person
at risk means that the tenant has to prove some element of the
case. Although the standard of proof is lesser in a civil
case than in a criminal case, it is nevertheless axiomatic
that the party bringing the charges (either the prosecution in
a criminal case or the plaintiff in a civil case) has the
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burden of proving all off the elements of his or her case by
the applicable standard of proof.
"Burden of proof" is defined as the obligation of a party to
establish by evidence a requisite degree of belief concerning
a fact in the mind of the trier of fact or the court. The
burden of proof may require a party to raise a reasonable
doubt concerning the existence or nonexistence of a fact or
that he establish the existence or nonexistence of a fact by a
preponderance of the evidence by clear and convincing proof,
or by proof beyond a reasonable doubt. Except as otherwise
provided by law, the burden of proof requires proof by a
preponderance of the evidence. (Evidence Code Section 115.)
The insertion of the word "presumed" in this bill in no way
means that the plaintiff in a civil eviction proceeding is
relieved of his or her burden of proof. However, the fact
that even housing professionals appear to jump to this
conclusion is another demonstration of the chilling effect
this bill would have upon tenants who are also registered sex
offenders in making the initial determination of whether to
litigate to protect his or her rights. This chilling effect
leads to the conclusion that a tenant who is not a trained
housing professional is likely to assume, as do some of the
parties in opposition, that the tenant has to prove some
unspecified fact about the vague terminology "person at risk."
In fact, a presumption does not shift the burden of proof. "In
all civil actions, a presumption imposes on the party against
whom it is directed the burden of going forward with evidence
to rebut or meet the presumption, but does not shift the
burden of proof in the sense of the risk of nonpersuasion,
which remains throughout the trial upon the party on whom it
was originally cast." (1 Witkin California Evidence Section
51.)
Since the language of the statute is vague, landlords ill
equipped to make whatever determination is required (which is
unconstitutionally vague as it does not inform a person of
average intelligence exactly what is required) and the
affected tenants (most likely to be less educated and in a
lower socio-economic group than the average citizen), most
registered sex offenders are likely to believe that the
landlord need prove nothing in an eviction case and the entire
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burden of proof has shifted to the tenant. Such an
unprecedented shift in the burden of proof standards of
American jurisprudence is unlikely to be well-received by the
courts.
21)Where Are Registered Sex Offenders, and Their Families, Going
to Live If Lessors are Granted the Right to Evict Them ? Even
a cursory inspection of the Megan's Law Web site discloses
that many of the persons listed committed their crime 20, 30,
or 40 years ago and have been offense-free for that length of
time. Registered sex offenders have families, spouses,
partners, and children, and these families need a decent, safe
and sanitary place to live. If a registered sex offender has
been a satisfactory tenant at an apartment complex for any
length of time, there would be no reason to evict that person
but for their inclusion on the Megan's Law database.
Moreover, Penal Code Section 290.46(j)(1) provides that use of
the information to commit a misdemeanor subjects the user to a
fine of not less than $10,000 nor more than $50,000 in
addition to any other penalty or fine that may be imposed for
the conduct. Penal Code Section 290(j)(2) makes use of the
information to commit a felony subject to a fine of not less
than $10,000 and not more than $50,000, in addition to any
other fine or penalty imposed and consecutive to other
punishment, by a five-year term of imprisonment in the state
prison. Penal Code Section 290.46(k)(4)(A) makes the user
subject to actual damages, plus any amount determined by the
trier of fact not exceeding three times the amount of the
actual damages and not less than $250, plus attorneys fees,
exemplary damages, or a civil penalty not exceeding $25,000.
These punishments for using the information on Megan's Law for
purposes other than to protect a person at risk serve as a
strong deterrent against the vigilantism and other criminal
conduct that other states have experienced. The section
allowing use to protect a person at risk is placed
strategically immediately following the provisions setting
forth the fines and punishments for misuse of the information
[Penal Code Section 290.46(l)(1)] and immediately prior to the
prohibitions on the use of the information for purposes
related to insurance, credit, employment, and housing.
If all persons who may happen to encounter a registered sex
offender are "persons at risk", what was the legislative
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intent in establishing strong penalties for misuse of the
information, and for establishing prohibitions on the purposes
for which the information may be used? If all persons who
encounter the specified registered sex offenders are "persons
at risk" (as inferred by the presumption created by this bill)
why must an employer refrain from taking any action with
respect to employment, while at the same time a landlord is
specifically allowed to take action with respect to housing
(through the presumption created by this bill)?
People are generally at work eight hours per day, five days per
week, and come into closer contact with their co-workers than
is likely in a large apartment complex. If a person works
with a registered sex offender, why is that person not a
"person at risk?" The list of offenses included in this bill
are not limited to offenses against children, and include
rape, sodomy and kidnapping with intent to commit specific sex
crimes. Why is a woman working in the same office with a
registered sex offender whose offense was rape of an adult
woman not a "person at risk" when a fellow tenant, who may
live in a different building in the complex from the sex
offender, is, according to this bill, presumed to be a person
at risk? Using the logic of the courts which have considered
the issue of presumptions, is it likely that a court would
find that the Legislature has an experientially sound basis
for these distinctions?
The Megan's Law database was put on the Internet to provide
persons with knowledge needed to protect themselves. That has
been accomplished. Unfortunately, armed with that knowledge,
the same people who lobbied to put the list on the Internet
now want additional, punitive actions to be taken against the
persons on the list. This trend will not stop with creating a
presumption for housing owners. When an employer group
demands legislation deeming their employees "persons at risk",
how will the Legislature respond? When the scholarship
committee at a college decides that its students are "persons
at risk", will the Legislature create yet another
"presumption?"
Unfortunately, there are risks in every day life. What about
persons who own homes situated next door to the home of a
registered sex offender? Except for being owners and not
renters, such people are in precisely the same "risk"
situation as the apartment renters presumed to be at risk
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under the provisions of this bill. Will someone propose
another presumption to justify taking the sex offender's
property in order to protect the person next door, who may or
may not be a sex offender, but has had the good fortune not to
have been caught?
22)The Governor's High Risk Sex Offender Task Force : This Task
Force, after many months of meetings and deliberation,
reported the following: "The critical issue of housing for
High Risk Sex Offenders was one of the main factors leading to
the formation of the task force?No viable long-term solutions
were identified in the 90 days available prior to the
dissolution of the task force . . . . Therefore, the task
force recommends that this committee continue to convene to
further address this issue.
. . . The lack of a stable residence for an HRSO places the
community at risk. Homeless sex offenders cannot be
effectively tracked and monitored by parole agents and local
law enforcement. Communities and victims are unaware of their
location and presence, which adds to the uncertainty that
offenders are being supervised."
Thus, the Governor's Task Force recommended that the issue of
housing continue to be studied as it recognized that the lack
of a stable residence places the entire community at risk.
The need for a definitive study is underscored not only by the
Task Force recommendations but by the cited legal authorities
which have held, in as many ways as possible, that
presumptions are to be based on common experience that, if a
fact exists in one case, it exists in most cases. There exist
no widely held beliefs or common experiences regarding the
risk posed by sex offenders other than those cited above which
indicate that sex offenders pose less risk of re-offending
than do other persons convicted of crimes. If a logical
presumption were to be based upon common experience (and
scientific study), that presumption would be the polar
opposite of that created by this bill. All of the scientific
literature proves that sex offenders pose less risk of
recidivism than almost every other ex-felon tracked by the US
DOJ.
23)Is This Bill Merely A Thinly-Veiled Attempt to Repeal the
Provisions of Penal Code Section 290.46(l)(2) ? The
"presumption" language in this bill, even if correctly applied
by the courts, is likely to deter rental housing applicants
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and residents with defensible cases to give up and fail to
defend themselves in eviction actions on in unlawful refusals
to house. In eviction cases, a tenant who has been an
exemplary tenant for many years and who is suddenly faced with
an eviction on the presumption that he or she is a risk to
other tenants would normally contest the eviction on the basis
of his history of tenancy at the apartment. However, the
presumption language may act as a deterrent to mounting a case
in which he or she might well prevail.
Moreover, as detailed above, the entire issue of presumptions is
complicated, and has been the subject of many legal treatises
and appellate court cases. It would likely take years for any
presumption such as the one contained in this bill to be
properly interpreted by the appellate courts. Finally, the
widespread, wholesale eviction and refusal to house sex
offenders may be the one additional factor that leads the
Supreme Court to conclude that the Megan's Law Internet list
is no longer a civil regulatory scheme, but is, in fact,
punitive, and, therefore, unconstitutional. Does the
Legislature wish to risk the constitutionality of the Megan's
Law civil regulatory scheme by enacting this ill-defined
presumption?
24)Arguments in Support :
a) The California Apartment Association states, "We believe
that AB 1197 strikes a careful balance between the rights
of sex offenders, the constitutional sanctity of the data
base, and tenants living in rental housing. This
legislation would allow landlords to make prudent decisions
about housing sex offenders and keeps the door open to sex
offenders to refute such a decision.
"AB 1197 provides clarification to the law. Currently state
law allows use of the Megan's Law database only to protect
a person at risk. AB 1197 simply provides that if a rental
property owner makes a housing decision based upon an
individual's status as a sex offender, it is rebuttably
presumed that the property owner did so in order to protect
a person at risk. AB 1197 does not foreclose a sex
offender's right to housing. It simply requires a sex
offender to demonstrate that he does not pose a risk.
"AB 1197 is narrowly crafted to those situations that demand
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a response - where life is at risk. The bill simply allows
a landlord to make housing decisions based upon a sex
offender that poses a risk to other tenants. [W]hile the
determination of who poses a risk is a judgment call, a sex
offender who is denied tenancy as a result of this
provision would have an opportunity to demonstrate that
they do not pose a risk to other tenants."
b) The North Coast Rental Housing Association states in
support exactly the same arguments as set forth by the
California Apartment Owners Association, as do many others,
listed under "support".
25)Arguments in Opposition :
a) California Rural Legal Assistance states, "We appreciate
your efforts to attempt to protect persons at risk.
Unfortunately, this is a zero sum game: the offender has
to live somewhere. Here is where our problems with AB 1197
begin.
"Under this bill, [t]he landlord will make an assessment as
to whether refusing to rent or evicting a sitting tenant
will serve to 'protect a person at risk.' Assuming the
landlord denies the housing, where does the person go?
They don't evaporate.
"The landlords likely to make this vague assessment are those
with tenants on the affluent side of the digital divide,
with easy access to the Megan's Law database. It has been
reported by the landlord groups that the higher income
tenants already demand that their landlords refuse to rent
or evict offenders they find on Megan's Law Database.
"Consequently, offenders will be concentrated in lower-rent
apartments and single room occupancy (SRO) hotels, putting
poor, latch-key children at even greater risk. Recent
articles in both the Los Angeles Times and San Francisco
Chronicle report the numbers of families with children
living in SROs is increasing rapidly as other types of
housing become even more unaffordable. These children
already suffer great disadvantages, and would thus be
burdened with one more hazard which may result in permanent
damage. This is unfair.
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"A second major concern is the accuracy of the database that,
under AB 1197, could determine a person's acceptability as
a tenant. Tens of thousands of offenders, required to
register, reportedly do not do so. Of those who do, a
Bureau of State Audit report found that more than 25
percent of the entries contained are inaccurate or
out-of-date information. AB 1197 would permit the denial
of housing or eviction based on flawed data.
"Another major concern is the bill's lack of an objective
standard. How does a landlord or manager assess if a
person is at risk? Just last year, the Legislature
authorized the State-Authorized Risk Assessment Tool for
Sex Offenders (SARATSO.) The SARATSO review committee's
risk assessment tools for males are not due until January
1, 2008, and for females on July 1, 2009. If the state
cannot at this point assess risk in a meaningful manner,
how can a landlord?
"Also, the landlord's open-ended ability to determine risk
could serve as a fa?ade for unlawful discrimination based
on impermissible criteria, such as race or gender.
(Observers have noted that female predators are treated
with far less severity than males.)
"We are further troubled by the bill's practical application.
We cannot determine if 'presumed to protect a person at
risk' goes to the landlord's motivation or to the actual
protection of a person. In other words, would the tenant
have to prove that the landlord's motive in denying or
terminating the tenant's tenancy had nothing to do with
trying to protect someone, or would the tenant have to
prove that denying or terminating the tenancy does not
protect anyone?
"In either case, the chance of the tenant meeting the burden
of proof is nearly impossible. In scientific circles, it
is an article of faith that it is impossible to prove a
negative. The tenant could be faced with such a burden
here; the bill has no standards on what a tenant might have
to show.
"We believe that the Governor's High Risk Sex Offender Task
Force should be the forum for determining a comprehensive
solution. Addressing a single facet, as AB 1197 does, can
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do more harm than good. As the Task Force noted, 'the lack
of stable residency for [a high risk sex offender] places
the community at risk. Homeless sex offenders cannot be
effectively tracked and monitored by parole agents and
local law enforcement. Communities and victims are unaware
of their location and presence, which adds to the
uncertainty that offenders are being supervised."
b) The American Civil Liberties Union states,
"Discrimination in the rental of property based on the fact
that the individual is an ex-offender is a denial of basic
civil rights. Housing may be denied on the basis of an
individual's behavior, but not because of his or her status
as an ex-offender. There are over 100,000 persons who are
required to register under California's sex registration
statute. It is lifetime registration. There are more than
30,000 persons whose home addresses are listed on the DOJ
sex offender Web site.
"The evidentiary presumption in this bill is intended to be
used to authorize discrimination against this class of
individuals. The bill will likely result in large numbers
of ex-offenders and their families becoming homeless,
creating the increased likelihood that the state will not
know the whereabouts of these individuals - the primary
intent and purpose of the registration laws."
c) Protection and Advocacy, Inc. , (PAI) states, "The Unruh
Civil Rights Act generally prohibits business
establishments from discriminating on the basis of sex,
race, color, religion, ancestry, national origin,
disability, or medical condition. The Unruh Civil Rights
Act provides civil remedies for violations of its
provisions.
'The California Fair Employment and Housing Act prohibits
discrimination in housing and employment.
"Under this bill, the denial or termination of housing of a
person who has been convicted of the commission or
attempted commission of specified sex offenses would be
presumed to protect a person at risk. This bill would
state findings and declarations of the Legislature in this
regard.
AB 1197
Page H
"PAI opposes AB 1197 because it denies people with
disabilities stable housing. A majority of individuals
with a sex offense live with a disability, primarily a
mental health disorder. In order for an individual with a
sex offense to transition back into society and become a
productive member the individual must have stable housing
and access to mental health treatment and medical care. AB
1197 will make it legal for landlords to terminate or
refuse to rent to an individual who is listed under the
Megan's Law web site.
"AB 1197 argues that because the Legislature previously found
that public notification about released sex offenders
furthers the primary government interest of protecting
vulnerable populations from potential harm, allowing
landlords to discriminate against individuals with a sex
offense will also further protect vulnerable populations.
This rationale is flawed and may actually lead to an
increase in public harm because individuals will not have
access to stable housing and the treatment they need.
"[A] recent story out of Miami described individuals with a
sex offense living under bridges because they cannot find
housing. AB 1197 may result in a similar result in
California because housing will become unavailable. This
in turn will lead to an inability for the individual to
secure adequate and consistent mental health treatment, an
inability to find adequate medical treatment, potential
problems securing public benefits, and the inability of the
city or county law enforcement agencies to keep track o an
individual's current location. All of these concerns may
lead to an individual with a sex offense to decompensate
and re-offend.
"[AB 1197] is an attempt to prevent all individuals with a
sex offense from living in California. As discussed above,
AB 1197 will negatively impact individuals with a sex
offense by denying them access to the services they need.
Isolating an individual with a sex offense from society
does not forward the interests of public security; rather,
it will create more situations of public harm."
26)Related Legislation :
a) AB 1068 (Cook) makes it an infraction for a sex offender
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Page I
to park his or her car within 200 feet of a school, without
lawful business, and states the infraction is punishable by
impoundment of the offender's vehicle. AB 1068 will be
heard by this Committee today.
b) AB 1235 (Fuller) requires that DOJ make specified
additions to the Megan's Law Web site by July 1, 2010. AB
1235 is pending by the Assembly Appropriations Committee.
c) AB 148 (Alarcon) allows lessors of residential real
property to refuse to house and to evict persons listed on
the Megan's Law Web site. AB 148 was held without
recommendation in this Committee.
d) SB 194 (Battin) proposes to add felony convictions for
specified child pornography offenses and for annoying or
molesting a child to the list of offenses requiring
inclusion on the Megan's Law Internet Web site and
requiring disclosure of the offender's actual home address,
not just the community of residence, or zip code. SB 194
is pending by the Senate Public Safety Committee.
27)Prior Legislation :
a) AB 488 (Parra), Chapter 721, Statutes of 2004,
implemented the Megan's Law Internet Web site.
b) AB 438 (Parra), of the 2005-06 Legislative Session,
would have allowed the evictions of, or refusal to rent to,
registered sex offenders. AB 438 failed passage in this
Committee.
c) AB 2712 (Leno), of the 2005-06 Legislative Session,
would have provided that no duty shall arise for a lessor
solely for renting or leasing residential real property to
a person who is registered or who is required to register
under Penal Code Section 290 or who is a person who has
been convicted as a sex offender in another state or
foreign jurisdiction. AB 2712 was vetoed.
The Governor stated in his veto message, "I sympathize with
property owners who are faced with the problems presented
by sex offenders. However, this bill would prioritize
property owner liability protection before tenant safety.
I cannot support legislation that may compromise the safety
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of families and children. Protection of our children from
sexual predators should be the top priority and I encourage
the Legislature to revisit this dilemma in more depth next
session to develop a solution that protects both families
and property owners."
d) AB 1849 (Leslie), Chapter 886, Statutes of 2006,
requires that on or before July 1, 2010 the year of the
conviction of the offender's last sexual offense, the year
of release from incarceration for that offense, and whether
he or she was subsequently incarcerated for any other
felony, be posted on the Internet Web site, as specified.
e) AB 1323 (Vargas), Chapter 722, Statutes of 2005, was a
DOJ-sponsored, technical clean-up bill with respect to
Megan's Law.
f) AB 437 (Parra), Chapter 721, Statutes of 2005, required
that the dates of conviction of the crimes for which the
person is required to register and the dates of release
from incarceration for those crimes be included on the Web
site, unless specified conditions regarding funding and
access to that information are not met.
g) SB 277 (Battin) of the 2005-06 Legislative Session,
would have prohibited placement of any sex offenders on
parole within one- and one-half miles of any park, day
care, or public or private school including grades
Kindergarten to 12, inclusive. SB 277 failed passage in
this committee.
h) AB 2263 (Spitzer), Chapter 341, Statutes of 2006,
requires every person required to register as a sex
offender who applies for or accepts a position as an
employee or volunteer with any person, group, or
organization where the applicant would be working directly
and in an accompanied setting with minor children, and the
applicant's work would require him or her to touch the
minor children on more than an incidental and occasional
basis, to disclose his or her status as a registrant, to
that person, group, or organization upon application or
acceptance of the position.
REGISTERED SUPPORT / OPPOSITION :
AB 1197
Page K
Support
Apartment Association of the Greater Inland Empire
California Apartment Association
California Apartment Association, Contra Costa County Division
California Apartment Association, Fresno, Merced and Modesto
California Apartment Association, Napa/Solano County Division
California Apartment Association, Tri-County Division
Motteri Properties, LLC
North Coast Rental Housing Association
Rental Housing Association of Sacramento Valley
Rental Housing Association of Sacramento Valley
Rental Housing Owners Association of Southern Alameda County
San Diego County Apartment Association
San Francisco Apartment Association
San Joaquin County Rental Property Association
South Coast Apartment Association
5 Private Individuals
Opposition
American Civil Liberties Union
California Rural Legal Assistance Foundation
Protection and Advocacy, Inc.
Western Center on Law and Poverty
Analysis Prepared by : Kathleen Ragan / PUB. S. / (916)
319-3744