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Calif. Must Resolve Sex Offender Disclosure Issue

(CN) - The 9th Circuit wants the California Supreme Court to decide whether sex offenders have a right to confidentiality if they entered into plea agreements before Megan's Law allowed public access to the state's sex-offender registry.

The case involves a John Doe plaintiff who pleaded guilty in 1991 to six counts of engaging in lewd and lascivious acts with the 12-year-old daughter of a close friend.

In his 40s at the time, 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 had stayed at Doe's home several times as a babysitter and friend of his daughter, according to an order published Monday.

Doe pleaded guilty to one count - committing a lewd and lascivious act upon a child and the state dropped the others. His sentence included probation, participation in a work-furlough program, fines and registration as a sex offender under California Penal Code § 290. At the time, section 290 allowed Doe to keep the details of his crime secret from all save law enforcement officers, the order states.

Later, Megan's Law opened the state's sex offender registry to the public. The state now has a website on which anyone can get the names, address and photographs of registered sex offenders. While Megan's Law applies retroactively to convicted sex offenders, a question remains as to how it affects those with plea agreements enacted under section 290.

Doe sued the state in an effort to keep his information secret, contending that Megan's Law, and specifically, its requirement that he be included in the state's sex offender website, violated his due process right to have his plea agreement honored.

The District Court agreed and ruled that publicly disclosing any of Doe's previously confidential sex-offender registration information would violate the terms his plea agreement. The court issued an injunction barring California's attorney general from disclosing Doe's information. The attorney general appealed the decision to the 9th Circuit.

The three-judge federal appeals panel in San Francisco found that the issue presented an "unsettled question of California law which could determine the outcome of this case," and certified the question to state's Supreme Court.

Writing for the panel, Judge Diarmuid O'Scannlain sent the following question to the California Supreme Court:

"Whether, under California law, the default rule of contract interpretation is (a) that the law in effect at the time of a plea agreement binds the parties, or (b) that the terms of a plea agreement may be affected by changes in law."

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