1 MICHAEL T. RlSHER (SB# 191627)
2 rnrisher@aclunc.org LINDA LYE (SB# 215584)
3 llye@aclunc.org AMERlCAN CIVIL LIBERTIES UNION
4 FOUNDATION OF NORTHERN CALIFORNIA, INC.
5 39 Drumm Street San Francisco, CA 94111
6 Telephone: (415) 621-2493 Facsimile: (415) 255~8437
7 HANNI FAKHOURY (SB# 252629)
8 hanni@eff.org
LEE TIEN (SB# 148216) 9 tien@eff.org
10 ELECTRONIC FRONTIER FOUNDATION 454 Shotwell Street
11 San Francisco, CA 94110
Telephone: (415) 436-9333 12 Facsimile: (415) 436-9993

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13 Attorneys for Plaintiffs

14

JOHN DOE, et al. on behalf of themselves and others similarly situated

15

16

TEH

UNITED STATES DISTRlCT COURT

17

18 19

c 12 5 7 1 3 FOR THE NORTHERN DISTRlCT OF CALIFORNIA 1

20

JOHN DOE, JACK ROE, and CALIFORNIA REFORM SEX

21

OFFENDER LAWS, on behalf of themselves and others similarly situated,

Civil Case No. - - - - - -

22

Plaintiffs,

23

v.

24 KAMALA D. HARRIS, Attorney General 25 of California; and CITY OF ALAMEDA,
Defendants. 26

CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE \ RELIEF

27

28

CLASS ACTION COMPLAINT FOR DECLARATORY & INJUNCTIVE RELIEF

1

Plaintiffs, for their Complaint in this action, allege and aver as follows:

2

INTRODUCTION

3

1. This is a challenge to a just-enacted California statute that requires more

4 than 73,000 Californians who are required to register under California Penal Code § 290 as a result

5 of being convicted of a sex-related offense to immediately provide the police with their Internet

6 identifiers and service providers. These requirements, enacted as part of Proposition 35, cover

7 individuals who were convicted of a wide range of crimes, including misdemeanor indecent

8 exposure, at any point since July 1, 1944, and they require registrants to provide information about

9 online activities that have no possible relationship to criminality, such as the screen names they

10 use to post comments about articles on a newspaper's website or names that they use to access

11 political discussion groups. In addition, when registrants use a new screen name, they must now

12 provide information about that name to the police within 24 hours. These new requirements

13 burden the online speech of all such persons, infringe on their right to engage in lawful,

14 anonymous speech on the Internet, and require them to reveal their membership in online groups,

15 including groups devoted to political reform. Because they sweep much too broadly in terms of

16 who must comply with them and the types of information they must provide, they are overbroad,

17 in violation of the First Amendment. In addition, the statutory definitions of "Internet identifier"

18 and "Internet service provider," which do not comport with the common understanding of these

19 terms, are unconstitutionally vague. As a result of these and other constitutional infirmities, the

20 statutes are facially invalid and cannot be enforced.

21

JURISDICTION AND VENUE

22

2. This action arises under 42 U.S.C. § 1983 and the United States

23 Constitution. This Court has subject-matter jurisdiction under 28 U.S.C. §§ 1331 and 1343.

24

3. The Defendants are all public officials of the State of California or its

25 political subdivisions. Each of the Defendants resides within this District and/or performs official

26 duties within the State of California. This Court, accordingly, has personal jurisdiction over each

27 of the Defendants.

28

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1

4. Venue properly lies within this District under 28 U.S.C. § 1391(b). One or

2 more of the named Defendants perform their official duties in this District, and a substantial part

3 of the events or omissions giving rise to Plaintiffs' claims have occurred or will occur in this

4 District.

5

INTRADISTRICT ASSIGNMENT

6

5. Pursuant to Local Rule 3-2, this action may properly be assigned to the San

7 Francisco or Oakland divisions of this Court because a substantial part of the events or omissions

8 which give rise to the claims in this action will occur in Alameda County, where Plaintiff Doe

9 resides, engages in anonymous Internet speech, and will be subject to the requirements of

10 Proposition 35.

11

THE PARTIES

12

Plaintiffs

13

6. Plaintiff Doe is an individual residing in the City of Alameda, in Alameda

14 County, California, who is required to register with Defendant City of Alameda under Penal Code

15 § 290 because he was convicted of two registerable offenses in 1986. Neither of them involved

16 the Internet or a stranger. Doe has not been arrested or convicted of any crime since he was

17 released from custody for those offenses in 1991. He is currently 75 years old.

18

7. Doe engages in a wide variety of online speech, including participation in ·

19 online discussions about political topics. Some ofDoe's online speech is rendered anonymous

20 through the use of screen names or other pseudonyms. Doe fears retaliation and social stigma if he

21 and other registrants are unable to participate anonymously in online dialogue. In addition, Doe

22 would be deterred from online speech by the burden of documenting and reporting the Internet

23 service providers and Internet identifiers that he uses. As a result, if Doe were required to disclose

24 to law enforcement all Internet service providers and Internet identifiers that he uses, he would

25 refrain from at least some online speech due to the fear of retaliation and the burdens of reporting.

26 If Doe were required to disclose his identity in publicly filed pleadings in this action, Plaintiff

27 would also be reluctant to participate in this litigation due to fear of retaliation.

28

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1

8. Plaintiff Roe is an individual who is required to register under Penal Code

2 § 290 when he resided in California because of convictions that occurred before 1993. Neither of

3 them involved the Internet or a stranger. Since his release from custody in the late 1990s he has

4 never been arrested or convicted of any crime.

5

9. Roe engages in a wide variety of online speech, including through

6 participation in online discussion forums about political topics and the posting of comments in

7 response to articles on the websites of newspapers. Much of this speech is anonymous. Roe posts

8 online comments from the perspective of a registered sex offender but does so anonymously

9 because of the fear of retaliation and social stigma associated with such status. Roe has

10 experienced retaliation in the past on the basis ofhis status as a registered sex offender. As a

11 result, if Roe were required to disclose to law enforcement all screen names he uses to engage in

12 online speech, he would cease engaging in such speech because of the fear of the consequences of

13 losing anonymity and the burdens of registration. If Roe were required to disclose his identity in

14 publicly filed pleadings in this action, he would also be reluctant to participate in this litigation due

15 to fear of retaliation.

16

10. Roe had lived in California nearly his entire life and would like to do so

17 agam. However, his concerns about having to provide the government with information about his

18 lawful online speech, and the practical burdens of doing so, have led him to leave the state, and he

19 now resides elsewhere. These laws are all that are keeping him from returning; he intends to

20 return to California if the law that he and the other Plaintiffs are here challenging are held

21 unconstitutional.

22

11. Plaintiff California Reform Sex Offender Laws ("California Reform") is a

23 California tax-exempt corporation organized under 501(c)(4) ofthe Internal Revenue Code.

24 California Reform's mission is to protect the rights of those accused or convicted of sex crimes.

25 California Reform believes that no sexual abuse is ever acceptable; that sex offense laws and

26 policies should be based on sound research and common sense, not fear, panic, or paranoia; that

27 current laws and policies that paint all sex offenders with one broad brush are counterproductive,

28 wasteful, and cause needless harm; that each offense must be judged on its own merits, with a

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1 punishment that fits the crime and does not waste taxpayer dollars; that the public sex offender

2 registry and residency restriction laws do not protect children, but instead ostracize and

3 dehumanize individuals and their families; and that money spent on purely punitive measures

4 would be better used for prevention, healing, and rehabilitation. California Reform has members

5 who are registrants throughout the state.

6

12. California Reform maintains a website, http://californiarsol.org/. One of its

7 purposes in maintaining this website is to inform the public and its members about legal and policy

8 issues relating to persons who are required to register under § 290 and to promote political and

9 social change on these issues. For example, these are a few of the many articles and information

10 that appeared on the website in October and November of2012: information about a pending

11 proposal in Anaheim to enact an ordinance banning registrants from its parks, a notice of a

12 California Reform meeting to be held on November 10 in Los Angeles, information about a recent

13 California Court of Appeals decision upholding an injunction prohibiting the enforcement in San

14 Diego of a state law restricting where registrants can live. The website also included an

15 exhortation for people to vote in the 2012 election and links to information about how to register

16 to vote in California and who is eligible to do so. California Reform also used the website to help

17 it meet its goal of obtaining 500 signatures on a petition to the Orange County District Attorney

18 challenging a county ordinance that prohibits all registrants from entering parks, beaches, harbors,

19 and other recreational areas.

20

13. The California Reform website allows people to comment on these items,

21 and people regularly do so anonymously. For example, as ofNovember 2, one item about the

22 Anaheim Parks ban included 13 comments, ranging from expressions of thanks for California

23 Reform's advocacy efforts to statements that such laws are unconstitutional and bad policy. An

24 item about the November 10 meeting had generated 8 comments, including questions about who

25 would be allowed to attend and how to do so. As their content often makes clear, many of the

26 persons who comment are registrants with questions or comments about how these laws affect

27 them and with updates on efforts to change California's registration law.

28

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1

14. A discussion of the provisions of Proposition 35 here at issue had generated

2 15 comments on the website, many of them by registrants expressing confusion about what they

3 will be required to do. For example, one commenter ("MM") writes "My question is ... Internet

4 Identifier, I'm confused. I know that your AOL, YAHOO or GMAIL account information would

5 have to be provided, but what about your Directv account? your car insurance account? Your

6 Macy's log on? We all have "internet identifiers", "username" and they are not necessarily the

7 same as your email ... does it include your work email? I tired [sic] to decipher some of the Prop

8 but got lost in the mumbo-jumbo of internet identifiers and whether it's at a library or work or

9 home."

10

15. Another commenter on the California Reform website asks, "What about

11 posting on this website? You can post under a new name all day long, if you so please. Is every

12 time you write something under a user name Gust because you do not register per se that does not

13 mean you are not posting under that name) cause to provide that name? What if you stop using it?"

14

16. The comments sections of its website site further California Reform's

15 interests in several ways. First, they allow registrants and others to express matters of fact and

16 opinion about an original article. Second, they allow registrants and others to ask questions about

17 the organization and about legal and policy matters, which are often answered by staff or by other

18 commenters. Third, and related to both of these other interests, allowing comments encourages

19 membership by providing a safe and welcoming forum for registrants and others to speak and ask

20 questions about issues relating to persons convicted or accused of sex offenses.

21

17. Almost all of these comments, aside from those submitted by staff, are

22 submitted using pseudonyms. Reform California recognizes that its members face social

23 ostracism, the risk of violence, and other adverse consequences because they are registrants, and

24 thus exists the importance of allowing them to participate anonymously. Therefore, its meetings

25 are open to registrants, family members, and supporters but closed to media and government

26 officials. And the website allows commenters to remain anonymous by using pseudonyms.

27

18. The challenged laws will invade this anonymity because registrants who

28 leave comments on the website generate what is clearly within Proposition 35's definition of

Case No.

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CLASS ACTION COMPLAINT FOR

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1 Internet identifier: to leave a comment, a person must enter a screen name (which may be a

2 pseudonym) and email address. The screen name is displayed with the comment. This loss of

3 anonymity will make it less likely that registrants will express themselves on the website, both

4 because some of them may not want the government to be able to connect them to specific posts

5 and because providing the police with the screen names that they use to post comments will reveal

6 their association with California Reform and that they participate in discussions on the website.

7 The loss of anonymity will also impair California Reform's mission by interfering with its ability

8 to provide a safe and welcoming forum in which registrants and others can participate in

9 discussions about issues affecting sex offenders, without fear of adverse consequence.

10

19. Members of California Reform would have standing to pursue this lawsuit

11 in their own right because they are registrants subject to the requirements of the challenged laws.

12 This lawsuit is germane to the purpose of California Reform because the challenged laws violate

13 the rights of its members, and its mission is to protect those rights. Participation of California

14 Reform's individual members in this litigation is unnecessary because Plaintiffs do not seek

15 damages.

16

Defendants

17

20. All Defendants are sued in their official capacities only.

18

21. Defendant Kamala D. Harris is the Attorney General of the State of

19 California. Under Article 5, Section 13 of the California Constitution, she is the "chief law officer

20 of the State," with a duty "to see that the laws of the state are uniformly and adequately enforced."

21 This provision grants her "direct supervision over every district attorney and sheriff and over such

22 other law enforcement officers as may be designated by law." !d.; see Ca. Gov't Code§§ 12524,

23 12550, 12560. She "has charge, as attorney, of all legal matters in which the State is interested."

24 § 12511.

25

22. As Attorney General, Defendant Harris also supervises the operations of the

26 California Department of Justice. See Cal. Gov't. Code§ 12510. The California Department of

27 Justice is responsible for implementing many of California's registration requirements, including

28 the creation and maintenance ofthe database itself(§§ 290.012(d), 290.022, 290.09(b)(2), 290.47),

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1 creation and maintenance of the publicly accessible website that contains information about certain

2 registrants(§ 290.46), creation of registration forms that specify what information registrants must

3 provide(§ 290.012(a)), and coordination of registration information for registrants who move from

4 one jurisdiction to another(§ 290.013). The new law specifically requires that local law

5 enforcement make the information they collect about registrants' Internet use available to the

6 Department. § 290.014(b).

7

23. Therefore, all California law enforcement personnel who collect

8 information relating to registrants' Internet use under§§ 290.014 and 290.015 do so as agents of

9 and in active participation with Defendant Harris.

10

24. Defendant City of Alameda is a municipal corporation organized as a

11 charter city under the laws of the State of California. The Alameda Police Department is a

12 department ofthe City of Alameda. See Alameda Municipal Code§ 2-30.1. Because he resides in

13 the City of Alameda, Plaintiff Doe is required to provide a list of his Internet identifiers and

14 Internet service providers to the Alameda Police Department immediately after Proposition 35

15 goes into effect, within 24 hours of adding or changing an Internet identifier or changing his

16 account with an Internet service provider, and every year within 5 days of his birthday, under

17 Penal Code§§ 290.014 and 290.015.

18

CLASS ACTION ALLEGATIONS

19

Plaintiff Class

20

25. Plaintiffs bring this action as a class action pursuant to Fed. R. Civ. P.

21 23(b)(2) or, alternatively, Fed. R. Civ. P. 23(b)(l), on their own behalf and on behalf of all other

22 persons who are required to register under California Penal Code § 290, including those whose

23 duty to register arises after the class has been certified (the "Plaintiff Class"). All such persons are

24 subject to the law here at issue.

25

26. The class is so numerous that joinder is impracticable: according to the

26 website of the California Department of Justice, the Plaintiff Class includes more than 73,000

27 people who are currently living in the community, a figure that does not include those persons who

28 are incarcerated or have been deported.

Case No.

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1

27. The claims of Plaintiff Class members share common issues of law,

2 including but not limited to whether the challenged statutes violate the First Amendment because

3 they are overbroad; whether the challenged statutes violate the First Amendment and Due Process

4 Clause because they are vague; and whether they violate the Equal Protection Clause of the

5 Fourteenth Amendment.

6

28. The claims of Plaintiff Class members share common issues of fact,

7 including but not limited to whether these new statutes will be effective at addressing the problem

8 that they are meant to address; what the Department of Justice intends to do with the information it

9 is collecting; and how the state plans to implement the new laws.

10

29. The claims or defenses of the named Plaintiffs are typical of the claims of

11 members of the Plaintiff Class, particularly because this is a facial challenge to the statutes.

12

30. The named Plaintiffs will fairly and adequately protect the interests of the

13 Plaintiff Class. The named Plaintiffs have no interest that is now or may be potentially

14 antagonistic to the interests of the class. The attorneys representing the Plaintiffs include

15 experienced civil rights attorneys and are considered able practitioners in federal constitutional

16 litigation. These attorneys should be appointed as class counsel.

17

31. Defendants have threatened to act and will act on grounds generally

18 applicable to the Plaintiff Class, thereby making final injunctive and declaratory relief appropriate

19 to the class as a whole. The Plaintiff Class may therefore be properly certified pursuant to Fed. R.

20 Civ. P. 23(b)(2).

21

32. Prosecution of separate actions by individual members of the Plaintiff Class

22 would create the risk of inconsistent or varying adjudications and would establish incompatible

23 standards of conduct for individual members of the Plaintiff Class. The Plaintiff Class may

24 therefore be properly certified, alternatively, under Fed. R. Civ. P. 23(b)(1).

25

THEMATTERSINCONTROVERSY

26

33. In California, every person who has been convicted of a variety of offenses

27 since July 1, 1944, must register as a sex offender for the rest of his or her life. § 290(b). The

28 requirement applies to persons convicted of a number of listed crimes as well as to persons who

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CLASS ACTION COMPLAINT FOR

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1 committed non-registerable offenses "as a result of sexual compulsion or for the purposes of

2 sexual gratification." §§ 290(c), 290.006. Registerable offenses include misdemeanor indecent

3 exposure, and California appellate courts have upheld convictions and the registration requirement

4 for such offenses based on nude erotic dancing on a stage at a bar, exposing oneself during an

5 incident of road rage, and exposing oneself to an undercover officer who the defendant thought

6 was interested in engaging in sexual activity.

7

34. Because California's registration statute is so broad, was enacted so long

8 ago, and because it, unlike most states, imposes a lifetime requirement for all offenders, there are

9 currently more than 73,000 people required to register in California, not including persons who are

10 in custody or who have been deported. This is so even though California does, in other contexts,

11 distinguish between sex offenders who pose a high risk to the public and those who do not, using

12 tools such as the Static-99 instrument that have been developed for just this purpose. See §§

13 290.04-290.07, 1203e, 1203f, 3008.

14

35. Prior to the adoption of the challenged laws, California's registration law

15 specifically required that registrants provide local law enforcement with their address, employer,

16 and license plate numbers. § 290.015(a). Registrants must provide this information within

17 5 working days of changing their residence address and annually within 5 days of their birthday.

18 §§ 290.012, 290.013.

19

36. The specific statutes here at issue were adopted as part of a voter initiative,

20 Proposition 35, on November 6, 2012, and went into effect the following day pursuant to Article II

21 § lO(a) of the California Constitution. Although the bulk of this initiative focuses on issues

22 relating to what it describes as human trafficking, the challenged sections apply to all registrants.

23

37. Proposition 35 amends § 290.015(a) so that registrants must provide the

24 following additional information whenever they register or re-register: "A list of any and all

25 Internet identifiers established or used by the person" and "[a] list of any and all Internet service

26 providers used by the person." § 290.015(a)(4), (5).

27

38. The initiative defines these terms as follows:

"Internet service provider" means a business, organization, or other entity providing 28

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CLASS ACTION COMPLAINT FOR

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a computer and communications facility directly to consumers through which a person

1

may obtain access to the Internet. An Internet service provider does not include a

2

business, organization, or other entity that provides only telecommunications services,

cable services, or video services, or any system operated or services offered by a library or

3

educational institution.

"Internet identifier" means an electronic mail address, user name, screen name, or

4

similar identifier used for the purpose of Internet forum discussions, Internet chat room

discussions, instant messaging, social networking, or similar Internet communication.

5

§ 290.024(a), (b).

6

39. The initiative requires that registrants provide this newly required

7 information "immediately" after the law becomes effective and also that they advise the police

8 within 24 hours of changes:

9

If any person who is required to register pursuant to the Act adds or changes his or her

account with an Internet service provider or adds or changes an Internet identifier, the

10

person shall send written notice of the addition or change to the law enforcement agency

or agencies with which he or she is currently registered within 24 hours. The law

11

enforcement agency or agencies shall make this information available to the Department

of Justice. Each person to whom this subdivision applies at the time this subdivision

12

becomes effective shall immediately provide the information required by this subdivision.

13

§ 290.014(b).

14

40. As with the other registration requirements, a violation of any of these

15 requirements is a crime. If the person is required to register as a result of a prior misdemeanor

16 conviction and has no prior convictions for registration violations, a violation is a misdemeanor,

17 punishable by no less than 90 days and no more than 1 year in jail; otherwise, it is a felony,

18 punishable by no less than 90 days in jail and up to 3 years in prison, a sentence that may be

19 dramatically increased if the registrant has prior felony convictions. § 290.018(a)-(c).

20

41. These new reporting requirements burden speech in several ways. First, the

21 requirement that registrants provide new Internet identifiers or Internet service provider accounts

22 to the government within 24 hours burdens their ability to engage in all manner of online speech,

23 as does the requirement that they provide a yearly list of all Internet identifiers or Internet service

24 providers that they use.

25

42. In addition, requiring registrants to provide this information infringes upon

26 their right to engage in anonymous online speech. Not only does it require them to identify

27 themselves to the government, but, because there are inadequate limits on what the government

28 can disclose, it may mean that information about their lawful but anonymous online speech

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1 activities will be released to the public. A 2009 survey of California law enforcement agencies

2 found that 39% had "proactively" provided information about registrants to the public, apparently

3 without any evidence that the registrant had been involved in any sort of criminal activity; nothing

4 in the new law prevents them from doing the same with the information about registrants' online

5 speech that registrants must now provide.

6

43. Scholarly research suggests that requiring all registrants to provide their

7 Internet identifiers and Internet service providers is not an effective way to accomplish the

8 government's stated goal of protecting children.

9

44. First, as the California Department of Justice reports, the vast majority of

10 sex crimes against children are committed by family members or acquaintances: 90% of child

11 victims know their offender, with almost half of the offenders being a family member. Of sexual

12 assaults against people aged 12 years and up, approximately 80% of the victims know the

13 offender.

14

45. Second, the best available data show that, as measured by arrests, online

15 offenses constitute only about 1% of sex crimes committed against children and youth. And only

16 4% of those arrested for online sex crimes against youth victims in 2006 were registered sex

17 offenders. Few of these crimes involve violence, abduction, or stalking, and few involved young

18 children. A rapidly growing proportion of those arrested for such crimes are themselves aged 25

19 years or under.

20

46. Third, because the government can, as it does in other contexts, distinguish

21 between registrants who pose a high risk of reoffending from those who pose a much lower risk,

22 requiring all registrants to comply with this new law is needlessly overbroad. Most sex offenders

23 do not reoffend, and the government can use tools such as the Static-99 test to determine which

24 registrants pose a high risk of reoffending and which do not. A 2009 study by the state showed

25 that the majority of felony sex offenders sentenced to prison and released on parole in California

26 after 2005 were classified as posing a low or moderate-low risk ofreoffending under Static-99. In

27 addition, the longer ex-offenders remain offense-free in the community, the less likely they are to

28 reoffend sexually. On average, the likelihood of reoffending drops by 50% every 5 years that an

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1 offender remains in the community without a new arrest for a sex offense. Eventually, persons

2 convicted of sex offenses are less likely to reoffend than a non-sexual offender is to commit an

3 "out of the blue" sexual offence. For example, offenders who are classified as "low risk" pose no

4 more risk of recidivism than do individuals who have never been arrested for a sex-related offense

5 but have been arrested for some other crimes. After 10 to 14 years in the community without

6 committing a sex offense, medium-risk offenders pose no more risk of recidivism than do

7 individuals who have never been arrested for sex-related offenses but have been arrested for other

8 crimes. The same is true for high-risk offenders after 17 years without a new arrest for a sex-

9 related offense.

10

47. Thus, rather than imposing these requirements on all registrants, the

11 government could have a more narrowly tailored requirement that excludes registrants whose

12 Static-99 scores, offense of conviction, and post-release conduct show that they do not pose a high

13 risk of using the Internet to commit a new crime.

14

Need for Injunctive and Declaratory Relief

15

48. Plaintiffs re-allege and incorporate here the allegations in the above

16 paragraphs, as though fully set forth herein.

17

49. There exists an actual, present, and justiciable controversy between

18 Plaintiffs and Defendants concerning their rights and duties with respect to Defendants' conduct

19 described herein. Plaintiffs contend that Defendants violate Plaintiffs' rights under the

20 Constitution and laws of the United States, because the challenged provisions are unconstitutional

21 on their face and as applied to the individual Plaintiffs, the members of the organizational Plaintiff,

22 and to others in the Plaintiff Class. On information and belief, Defendants deny that their conduct

23 violates Plaintiffs' rights under the Constitution and laws of the United States. Plaintiffs fear that

24 they are now and will again be subjected to such unlawful and unconstitutional actions and seek a

25 judicial declaration that Defendants' conduct deprives Plaintiffs of their rights under the

26 Constitution and laws of the United States.

27

28

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1

50. This controversy is ripe for judicial decision, and declaratory relief is

2 necessary and appropriate pursuant to 28 U.S.C. §§ 2201 and 2202, so that the parties may know

3 the legal obligations that govern their present and future conduct.

4

51. In the absence of court-ordered relief, Plaintiffs will suffer imminent,

5 immediate, and ongoing irreparable harm in the form ofloss of anonymity, and a chilling oftheir

6 free speech and associational rights. No future award of damages can remedy the loss of these

7 constitutional rights. Both the public interest and equity favor granting an injunction to allow

8 Plaintiffs to exercise their constitutional free speech and associational rights. Injunctive relief is

9 therefore necessary and appropriate.

10

COUNT I: VIOLATION OF THE FIRST AMENDMENT TO

11

THE UNITED STATES CONSTITUTION (42 U.S.C. § 1983)

12

52. Plaintiffs hereby re-allege and incorporate by reference the allegations

13 contained in the above paragraphs as though fully set forth herein.

14

53. The provisions of§§ 290.015(a)(4), (5) and§ 290.014(b) that require

15 registrants to provide their Internet identifiers and Internet service providers to the government

16 violate the First Amendment rights to free speech and association because the provisions are

17 vague, overbroad, burden speech without being appropriately tailored to the government's stated

18 goals, and require the compelled disclosure of individuals with whom registrants associate.

19

54. The provisions of§§ 290.015(a)(4), (5) and§ 290.014(b) that require

20 registrants to provide their Internet identifiers and Internet service providers to the government

21 violate the First Amendment because they apply to some persons but not others without sufficient

22 justification.

23

55. Defendants, acting under color of state law, have threatened to and will

24 enforce and implement the challenged laws against the individual Plaintiffs, members of the

25 organizational Plaintiff, and members of the Plaintiff Class, in violation of their First Amendment

26 rights.

27

56. As a direct and proximate result of Defendants' unlawful conduct, Plaintiffs

28 have and will suffer irreparable harm, which will continue absent injunctive relief.

Case No.

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1

COUNT II: VIOLATION OF DUE PROCESS UNDER THE FOURTEENTH

2

AMENDMENT TO THE UNITED STATES

3

CONSTITUTION (42 U.S.C. § 1983)

4

57. Plaintiffs hereby re-allege and incorporate by reference the allegations

5 contained in the above paragraphs as though fully set forth herein.

6

58. The definitions of "Internet identifier" and "Internet service providers" in §§

7 290.024(a), (b) are impermissibly vague in that persons of common intelligence must guess at their

8 meaning; this problem is magnified because a registrant who reads the provisions too narrowly is

9 subject to criminal prosecution and punishment, and one who reads them too broadly suffers a

10 greater infringement of his First Amendment rights than the statutes require. These statutes

11 therefore violate due process.

12

59. Defendants, acting under color of state law, have threatened to and will

13 enforce and implement the challenged laws against the individual Plaintiffs, members of the

14 organizational Plaintiff, and members of the Plaintiff Class, in violation of their due process rights.

15 As a direct and proximate result ofDefendants' unlawful conduct, Plaintiffs have and will suffer

16 irreparable harm, which will continue absent injunctive relief.

17

COUNT III: VIOLATION OF EQUAL PROTECTION

18

UNDER THE FOURTEENTH AMENDMENT TO THE UNITED STATES

19

CONSTITUTION (42 U.S.C. § 1983)

20

60. Plaintiffs hereby re-allege and incorporate by reference the allegations

21 contained in the above paragraphs as though fully set forth herein.

22

61. The provisions of§§ 290.015(a)(4), (5) and§ 290.014(b) that require

23 registrants to provide their Internet identifiers and Internet service providers to the government

24 violate equal protection because they apply to some persons but not others without sufficient

25 justification.

26

62. Defendants, acting under color of state law, have threatened to and will

27 enforce and implement the challenged laws against the individual Plaintiffs, members of the

28

Case No.

-14-

CLASS ACTION COMPLAINT FOR

DECLARATORY & INJUNCTIVE RELIEF

1 organizational Plaintiff, and members of the Plaintiff Class, in violation of their equal protection

2 rights.

3

63. As a direct and proximate result of Defendants' unlawful conduct, Plaintiffs

4 have and will suffer irreparable harm, which will continue absent injunctive relief.

5

COUNTIV: EXPOSTFACTOLAW

6

UNDER ARTICLE II§ 10 cl.1 OF THE UNITED STATES

7

CONSTITUTION (42 U.S.C. § 1983)

8

64. Plaintiffs hereby re-allege and incorporate by reference the allegations

9 contained in the above paragraphs as though fully set forth herein.

10

65. The provisions of§§ 290.015(a)(4), (5) and§ 290.014(b) that require

11 registrants to provide their Internet identifiers and Internet service providers to the government

12 violate the Ex Post Facto Clause because they impose additional punishment for crimes committed

13 before they were enacted.

14

66. Defendants, acting under color of state law, have threatened to and will

15 enforce and implement the challenged laws against the individual Plaintiffs, members of the

16 organizational Plaintiff, and members of the Plaintiff Class, in violation of their rights under the

17 Ex Post Facto Clause.

18

67. As a direct and proximate result of Defendants' unlawful conduct, Plaintiffs

19 have and will suffer irreparable harm, which will continue absent injunctive relief.

20

RELIEF SOUGHT

21

WHEREFORE, Plaintiffs, on behalf of themselves and the Plaintiff Class, seek the

22 following relief:

23

1. A declaration that California Penal Code§§ 290.015(a)(4), (5),

24 § 290.014(b), and§§ 290.024(a), (b) are unconstitutional, facially and as applied.

25

2. A temporary restraining order, preliminary injunction, and permanent

26 injunction enjoining Defendants, including all of Defendant Harris's officers, agents, servants,

27 employees, attorneys, and other persons in active concert or participation with Defendant Harris,

28 including but not limited to every California District Attorney, City Attorney, or peace officer,

Case No.

-15-

CLASS ACTION COMPLAINT FOR

DECLARATORY & INJUNCTIVE RELIEF

1 from enforcing§§ 290.015(a)(4), (5), § 290.014(b) and§§ 290.024(a), (b) or from otherwise

2 requiring registrants to provide their Internet identifiers or Internet service providers to the

3 government.

4

3. Costs and attorney's fees incurred in this action pursuant to 42 U.S.C.

5 § 1988 and other applicable authority.

6

4. Such other and further relief as may be just and proper.

7 DATED: November 7, 2012
8

Respectfully submitted,

9

10

Michael T. Risher

11

Linda Lye

AMERICAN CIVIL LIBERTIES UNION

12

FOUNDATION OF NORTHERN

13

CALIFORNIA, INC.

39 Drumm Street

14

San Francisco, CA 94111

Telephone: (415) 621-2493

15

Facsimile: (415) 255-8437

16

Hanni Fakhoury

17

Lee Tien

ELECTRONIC FRONTIER FOUNDATION

18

454 Shotwell Street

San Francisco, CA 9411 0

19

Telephone: (415) 436-9333

Facsimile: (415) 436-9993 20

21

Attorneys for Plaintiffs

JOHN DOE, et al., on behalf of themselves

22

and others similarly situated

23

24

25

26

27

28

Case No.

-16-

CLASS ACTION COMPLAINT FOR

DECLARATORY & INJUNCTIVE RELIEF

 
 Case3:12-cv-05713-TEH Document36 Filed11/07/12 Page1 of 4

United States District Court For the Northern District of California

1

IN THE UNITED STATES DISTRICT COURT

2

FOR THE NORTHERN DISTRICT OF CALIFORNIA

3

4

5 JOHN DOE, et al.,

6

Plaintiffs,

7

v.

8 KAMALA D. HARRIS, et al.,

9

Defendants.

NO. C12-5713 TEH
ORDER GRANTING TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE AS TO WHY A PRELIMINARY INJUNCTION SHOULD NOT ISSUE

10

11

This matter came before the Court on November 7, 2012, for a telephonic hearing1 on

12 Plaintiffs’ motion for a temporary restraining order (“TRO”). For the reasons set forth

13 below, the motion is GRANTED.

14

Plaintiffs John Doe, Jack Roe,2 and the non-profit organization California Reform Sex

15 Offender Laws bring this action on behalf of present and future California sex offender

16 registrants. Plaintiffs move to enjoin the implementation of several sections of the

17 Californians Against Sexual Exploitation Act (“CASE Act”), which was enacted yesterday

18 by Proposition 35 and takes effect today. See Cal. Const. art. II, § 10(a). In particular,

19 Plaintiffs challenge the constitutionality of the newly enacted California Penal Code sections

20 290.014(b) and 290.015(a)(4)-(6), which require registered sex offenders to “immediately”

21 provide the police with lists of “any and all Internet service providers” and “any and all

22 Internet identifiers established or used” by the registrant. Plaintiffs maintain that they will

23 suffer irreparable harm if these online information reporting requirements are enforced,

24 including violation of their rights to free speech and association under the First Amendment,

25

26 1The hearing was recorded by a court reporter.
27 2The two individual plaintiffs’ motion to proceed anonymously is currently pending
28 before the Court.

Case3:12-cv-05713-TEH Document36 Filed11/07/12 Page2 of 4

United States District Court For the Northern District of California

1 and due process and equal protection under the Fourteenth Amendment. They now seek a

2 TRO while the Court considers whether to grant a preliminary injunction.

3

To obtain a TRO, plaintiffs must establish that (1) they are likely to succeed on the

4 merits; (2) they are likely to suffer irreparable harm in the absence of the TRO; (3) the

5 balance of equities tips in their favor; and (4) the issuance of the TRO is in the public

6 interest. Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008) (setting forth

7 standard for preliminary injunction); Lockheed Missile & Space Co., Inc. v. Hughes Aircraft

8 Co., 887 F. Supp. 1320, 1323 (N.D. Cal. 1995) (“The standard for issuing a temporary

9 restraining order is identical to the standard for issuing a preliminary injunction.”). A

10 stronger showing on one of these four elements may offset a weaker showing on another.

11 Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011). “‘[S]erious

12 questions going to the merits’ and a balance of hardships that tips sharply towards the

13 plaintiff can support issuance of a preliminary injunction, so long as the plaintiff also shows

14 that there is a likelihood of irreparable injury and that the injunction is in the public interest.”

15 Id. at 1135 (9th Cir. 2011).

16

In this case, the Court finds that Plaintiffs have raised serious questions about whether

17 the challenged sections of the CASE Act violate their First Amendment right to free speech

18 and other constitutional rights. In addition, the balance of hardships tips sharply in favor of

19 issuing a TRO. Defendant Harris’s counsel represented to the Court that the State would be

20 in no position to enforce the law until March 20, 2013. The harm to Defendants of a TRO

21 therefore appears to be minimal. See Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir.

22 2012) (“The Defendants cannot be harmed by an order enjoining an action they will not

23 take.”). Plaintiffs, by contrast, would suffer the potential loss of their “ability to speak

24 anonymously on the Internet,” which is protected by the First Amendment. In re Anonymous

25 Online Speakers, 661 F.3d 1168, 1173 (9th Cir. 2011). Such “loss of First Amendment

26 freedoms . . . unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347,

27 373 (1976); see also Klein v. City of San Clemente, 584 F.3d 1196, 1207 (9th Cir. 2009).

28 Additionally, the Ninth Circuit has “consistently recognized the ‘significant public interest’

2

Case3:12-cv-05713-TEH Document36 Filed11/07/12 Page3 of 4

United States District Court For the Northern District of California

1 in upholding free speech principles,” Klein, 584 F.3d at 1208 (9th Cir. 2009), and that “it is

2 always in the public interest to prevent the violation of a party’s constitutional rights,”

3 Melendres, 695 F.3d at 1002 (internal quotation marks and citation omitted). The Court

4 therefore finds that Plaintiffs have satisfied the standard for a TRO.3

5

Accordingly, with good cause appearing, IT IS HEREBY ORDERED that, pending a

6 hearing on whether a preliminary injunction should issue, Defendant Kamala Harris and her

7 officers, agents, servants, employees, and attorneys, and those persons in active concert or

8 participation with her, are HEREBY ENJOINED AND RESTRAINED from implementing

9 or enforcing California Penal Code sections 290.014(b) and 290.015(a)(4)-(6), as enacted by

10 Proposition 35, or from otherwise requiring registrants to provide identifying information

11 about their online speech to the government. Pursuant to the parties’ agreement, as

12 represented by counsel at the telephonic hearing, this order applies to all California state and

13 local law enforcement officers and to all members of the putative class, i.e., to all persons

14 who are required to register under California Penal Code section 290, including those whose

15 duty to register arises after the date of this order.4

16

IT IS FURTHER ORDERED that Defendant Harris shall show cause as to why a

17 preliminary injunction should not issue enjoining her and her agents from implementing and

18 enforcing California Penal Code sections 290.014(b) and 290.015(a)(4)-(6) or from

19 otherwise requiring registrants to provide identifying information about their online speech to

20 the government. The Court will construe Plaintiffs’ moving papers for a TRO as a motion

21 for preliminary injunction. Plaintiffs shall file a proof of service of their moving papers and

22 this order on or before November 8, 2012. Defendants’ opposition papers shall be filed on

23 or before November 13, 2012, and Plaintiffs’ reply shall be filed on or before November 16,

24

25

3The Court recognizes that Defendants have not had an opportunity to be fully heard on these issues, and the Court’s grant of a TRO shall not be considered any indication of the

26

Court’s views of the merits of the issues raised by Plaintiffs or whether, after further briefing, the Court will grant preliminary injunctive relief.

27

4The Court therefore need not reach the question of whether to certify the Plaintiff

28

class at this time. Plaintiffs may, if they wish, renew their motion for class certification as a regularly noticed motion in accordance with the Court’s Civil Local Rules.

3

Case3:12-cv-05713-TEH Document36 Filed11/07/12 Page4 of 4

United States District Court For the Northern District of California

1 2012. The hearing shall be held on November 20, 2012, at 10:00 AM, in Courtroom No. 2,

2 450 Golden Gate Avenue, San Francisco, CA.

3

Counsel for Defendant Harris represented to the Court at today’s hearing that the

4 proponents of Proposition 35 may seek to intervene in this lawsuit. If they successfully

5 move to intervene, then their opposition to Plaintiffs’ motion for a preliminary injunction

6 shall also be due on November 13, 2012.

7

The Court sets this expedited briefing schedule based on the requirements of Federal

8 Rule of Civil Procedure 65(b)(2), which provides that a TRO shall expire within fourteen

9 days of the date of entry “unless before that time the court, for good cause, extends it for a

10 like period or the adverse party consents to a longer extension.” The Court encourages the

11 parties to meet and confer to attempt to reach agreement on an extension of the briefing and

12 hearing schedule. The Court will entertain a stipulation and proposed order to do so,

13 provided that the parties agree that the TRO shall remain in effect until at least seven days

14 after the hearing on Plaintiffs’ motion for a preliminary injunction. Given Defendant

15 Harris’s counsel’s representation that the State of California will not be in a position to

16 enforce the law until March 20, 2013, it appears that such an extension would result in no

17 harm to Defendants while having the benefit of allowing the parties and this Court additional

18 time to consider the important issues raised in this case.

19

Finally, the Civil Local Rules shall govern consideration of Plaintiffs’ administrative

20 motion to proceed anonymously. Any opposition or statement of non-opposition shall be

21 filed on or before November 13, 2012. See Civ. L.R. 7-11(b). The motion will then be

22 deemed submitted on the papers unless otherwise ordered.

23

24 IT IS SO ORDERED.

25

26 Dated: 11/07/12 27

THELTON E. HENDERSON, JUDGE UNITED STATES DISTRICT COURT

28

4

 
 Case: 3:12-cv-5713 As of: 12/09/2017 10:13 AM PST 1 of 13
ADRMOP,CLOSED,E−Filing
U.S. District Court California Northern District (San Francisco) CIVIL DOCKET FOR CASE #: 3:12−cv−05713−TEH

Doe et al v. Harris et al Assigned to: Hon. Thelton E. Henderson Case in other court: 13−15263
13−15267 Cause: 42:1983 Civil Rights Act Plaintiff Jack Roe
Plaintiff John Doe

Date Filed: 11/07/2012 Date Terminated: 01/12/2017 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by Hanni Meena Fakhoury Federal Public Defender 1301 Clay Street, Suite 1350N Oakland, CA 94612 (510) 637−3500 Fax: (510) 637−3507 Email: hanni_fakhoury@fd.org TERMINATED: 10/28/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Temple Risher ACLU Foundation of Northern California, Inc. 39 Drumm Street San Francisco, CA 94111 415−621−2493 Fax: 415−255−8437 Email: mrisher@aclunc.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lee Tien Electronic Frontier Foundation 815 Eddy Street San Francisco, CA 94109 415−436−9333 Fax: 415−436−9993 Email: tien@eff.org ATTORNEY TO BE NOTICED
Linda Lye ACLU Foundation of Northern California, Inc. 39 Drumm Street San Francisco, CA 94111 (415) 621−2493 Fax: (415) 255−8437 Email: llye@aclunc.org ATTORNEY TO BE NOTICED
represented by Hanni Meena Fakhoury (See above for address) TERMINATED: 10/28/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Temple Risher (See above for address)

Case: 3:12-cv-5713 As of: 12/09/2017 10:13 AM PST 2 of 13

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lee Tien (See above for address) ATTORNEY TO BE NOTICED

Linda Lye (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
California Reform Sex Offender Laws on behalf of themselves and others similarly situated

represented by Hanni Meena Fakhoury (See above for address) TERMINATED: 10/28/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael Temple Risher (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lee Tien (See above for address) ATTORNEY TO BE NOTICED

Linda Lye (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
Kamala D. Harris Attorney General of California

represented by Margaret R. Prinzing Remcho, Johansen & Purcell, LLP 1901 Harrison Street, Suite 1550 Oakland, CA 94612 (510) 346−6200 Fax: (510) 346−6201 Email: mprinzing@rjp.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert David Wilson California State Attorney General's Office 1300 I Street, Suite 125 P.O. Box 944255 Sacramento, CA 94244−2550 (916) 327−7870 Fax: (916) 324−8835 Email: Robert.Wilson@doj.ca.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Benjamin Matthew Glickman California Department of Justice Office of the Attorney General 1300 I Street Sacramento, CA 95814 916−210−6054 Fax: 916−324−5502 Email: benjamin.glickman@doj.ca.gov

Case: 3:12-cv-5713 As of: 12/09/2017 10:13 AM PST 3 of 13

ATTORNEY TO BE NOTICED

Defendant
City of Alameda TERMINATED: 01/25/2013

Intervenor Daphne Phung

represented by Margaret R. Prinzing (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James C. Harrison Remcho, Johansen & Purcell, LLP 1901 Harrison Street, Suite 1550 Oakland, CA 94612 510−346−6200 Fax: 510−346−6201 Email: jharrison@rjp.com ATTORNEY TO BE NOTICED

Karen Ann Getman Remcho, Johansen & Purcell, LLP 1901 Harrison Street, Suite 1550 Oakland, CA 94612 510−346−6200 Fax: 510−346−6201 Email: kgetman@rjp.com ATTORNEY TO BE NOTICED

Intervenor Chris Kelly

represented by Margaret R. Prinzing (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James C. Harrison (See above for address) ATTORNEY TO BE NOTICED

Karen Ann Getman (See above for address) ATTORNEY TO BE NOTICED

Date Filed 11/07/2012
11/07/2012
11/07/2012 11/07/2012

# Docket Text
1 COMPLAINT against City of Alameda, Kamala D. Harris ( Filing fee $ 350, receipt number 34611080391. summons issued). Filed byJohn Doe, Jack Roe, California Reform Sex Offender Laws. (Attachments: # 1 Civil Cover Sheet)(hph, COURT STAFF) (Filed on 11/7/2012) (Entered: 11/07/2012)
2 ADR SCHEDULING ORDER: Case Management Statement due by 2/4/2013. Case Management Conference set for 2/11/2013 01:30 PM in Courtroom 12, 19th Floor, San Francisco. (Attachments: # 1 Standing Order, # 2 Standing Order for all judges)(hph, COURT STAFF) (Filed on 11/7/2012) (Entered: 11/07/2012)
3 Summons Issued as to City of Alameda, Kamala D. Harris. (hph, COURT STAFF) (Filed on 11/7/2012) (Entered: 11/07/2012)
4 CONSENT/DECLINATION to Proceed Before a US Magistrate Judge.. (hph, COURT STAFF) (Filed on 11/7/2012) (Entered: 11/07/2012)

Case: 3:12-cv-5713 As of: 12/09/2017 10:13 AM PST 4 of 13

11/07/2012 11/07/2012 11/07/2012 11/07/2012 11/07/2012 11/07/2012 11/07/2012 11/07/2012 11/07/2012
11/07/2012 11/07/2012 11/07/2012 11/07/2012 11/07/2012 11/07/2012
11/07/2012

5 Certificate of Interested Entities by California Reform Sex Offender Laws, John Doe, Jack Roe (hph, COURT STAFF) (Filed on 11/7/2012) (Entered: 11/07/2012)
6 Ex−Parte Application for Temporary Restraining Order and Order to Show Cause Why Preliminary Injunction Should Not Issue filed by California Reform Sex Offender Laws, John Doe & Jack Roe. (hph, COURT STAFF) (Filed on 11/7/2012) (Entered: 11/07/2012)
7 Declaration of Michael T. Risher in Support of 6 MOTION for Temporary Restraining Order filed byError: party not known. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Related document(s) 6 ) (hph, COURT STAFF) (Filed on 11/7/2012) (Entered: 11/07/2012)
8 MEMORANDUM in Support re 6 MOTION for Temporary Restraining Order filed byCalifornia Reform Sex Offender Laws, John Doe, Jack Roe. (Related document(s) 6 ) (hph, COURT STAFF) (Filed on 11/7/2012) (Entered: 11/07/2012)
9 Proposed Temporary Restraining Order and Order to Show Cause and Order for Provisional Class Certificate by California Reform Sex Offender Laws, John Doe, Jack Roe. (hph, COURT STAFF) (Filed on 11/7/2012) (Entered: 11/07/2012)
10 NOTICE of Motion & Motion and Points & Authorities in Support of Class Certification filed by California Reform Sex Offender Laws, John Doe & Jack Roe. (hph, COURT STAFF) (Filed on 11/7/2012) (Entered: 11/07/2012)
11 Declaration of Linda Lye in Support of re 10 MOTION for Class Certification filed by John Doe, Jack Roe & California Reform Sex Offender Laws. (Related document(s) 6 ) (hph, COURT STAFF) (Filed on 11/7/2012) Modified on 11/7/2012 (hph, COURT STAFF). (Entered: 11/07/2012)
12 [Proposed] Order Granting re 10 Motion for Class Certification filed by California Reform Sex Offender Laws, John Doe & Jack Roe. (hph, COURT STAFF) (Filed on 11/7/2012) (Entered: 11/07/2012)
13 CLERK'S NOTICE SCHEDULING TELEPHONIC CONFERENCE as to 6 MOTION for Temporary Restraining Order. Temporary Restraining Order Hearing set for 11/7/2012 01:30 PM in Courtroom 12, 19th Floor, San Francisco before Hon. Thelton E. Henderson. This is a text only docket entry. There is no document associated with this notice. (tmi, COURT STAFF) (Filed on 11/7/2012) (Entered: 11/07/2012)
14 Declaration of Lee Tien in Support of re 10 Motion for Class Certification filed by California Reform Sex Offender Laws, John Doe & Jack Roe. (Related document(s) 10 ) (hph, COURT STAFF) (Filed on 11/7/2012) (Entered: 11/07/2012)
15 Minute Entry: Telephonic Temporary Restraining Order Hearing held on 11/7/2012 before Judge Thelton E. Henderson. Request for Temporary Restraining Order is taken under submission. (Court Reporter: Lydia Zinn) (tmi, COURT STAFF) (Date Filed: 11/7/2012) (Entered: 11/07/2012)
16 Declaration of John Doe in Support of 6 MOTION for Temporary Restraining Order OSC and Preliminary Injunction filed byJohn Doe. (Related document(s) 6 ) (Lye, Linda) (Filed on 11/7/2012) (Entered: 11/07/2012)
17 Declaration of Jack Roe in Support of 6 MOTION for Temporary Restraining Order OSC & Preliminary Injunction filed byJohn Doe. (Related document(s) 6 ) (Lye, Linda) (Filed on 11/7/2012) (Entered: 11/07/2012)
18 Declaration of Jack Roe in Support of 6 MOTION for Temporary Restraining Order OSC & Prel. Injunction (Supp Declaration) filed byJohn Doe. (Related document(s) 6 ) (Lye, Linda) (Filed on 11/7/2012) (Entered: 11/07/2012)
19 ADMINISTRATIVE MOTION for Leave to Proceed Anonymously and to File Portions of Declarations Under Seal filed by California Reform Sex Offender Laws, John Doe, Jack Roe. (tn, COURT STAFF) (Filed on 11/7/2012) (Additional attachment(s) added on 11/7/2012: # 1 [Proposed] Order) (tn, COURT STAFF)...Modified on 11/7/2012 (tn, COURT STAFF). (Entered: 11/07/2012)
20 Declaration of Janice Bellucci in Support of 6 MOTION for Temporary Restraining Order OSC & Prel. Inj filed byJohn Doe. (Attachments: # 1 Exhibit)(Related

Case: 3:12-cv-5713 As of: 12/09/2017 10:13 AM PST 5 of 13

11/07/2012 11/07/2012 11/07/2012 11/07/2012 11/07/2012 11/07/2012 11/07/2012 11/07/2012 11/07/2012 11/07/2012 11/07/2012 11/07/2012 11/07/2012 11/07/2012 11/07/2012

document(s) 6 ) (Lye, Linda) (Filed on 11/7/2012) (Entered: 11/07/2012)
21 Declaration of David Post in Support of 6 MOTION for Temporary Restraining Order OSC & Prel. Inj. filed byJohn Doe. (Related document(s) 6 ) (Lye, Linda) (Filed on 11/7/2012) (Entered: 11/07/2012)
22 Declaration of Brian Abbott in Support of 6 MOTION for Temporary Restraining Order OSC & Prel Inj filed byJohn Doe. (Attachments: # 1 Exhibit)(Related document(s) 6 ) (Lye, Linda) (Filed on 11/7/2012) (Entered: 11/07/2012)
RECEIVED/LODGED: "FOUR UNDER SEALED DECLARATIONS" in re 19 Administrative MOTION for Leave to Proceed Anonymously and to File Portions of Declarations Under Seal Submitted by California Reform Sex Offender Laws, John Doe, Jack Roe.(tn, COURT STAFF) (Filed on 11/7/2012) (Entered: 11/07/2012)
23 Declaration of David Finkelhor in Support of 6 MOTION for Temporary Restraining Order OSC & Prel. Inj. filed byJohn Doe. (Attachments: # 1 Exhibit)(Related document(s) 6 ) (Lye, Linda) (Filed on 11/7/2012) (Entered: 11/07/2012)
24 Declaration of Karl Hanson in Support of 6 MOTION for Temporary Restraining Order OSC & Prel. Inj filed byJohn Doe. (Attachments: # 1 Exhibit)(Related document(s) 6 ) (Lye, Linda) (Filed on 11/7/2012) (Entered: 11/07/2012)
25 Supplemental Declaration of "Jack Roe" in Support of re 19 AdministrativeMOTION for Leave to Proceed Anonymously and to File Portions of Declarations Under Seal filed by California Reform Sex Offender Laws, John Doe, Jack Roe.(Related document(s) 19 ) (tn, COURT STAFF) (Filed on 11/7/2012) (Entered: 11/07/2012)
26 Declaration of Charlene Steen in Support of 6 MOTION for Temporary Restraining Order OSC & Prel. Inj. filed byJohn Doe. (Related document(s) 6 ) (Lye, Linda) (Filed on 11/7/2012) (Entered: 11/07/2012)
27 Declaration of Janice Bellucci in Support of re 19 AdministrativeMOTION for Leave to Proceed Anonymously and to File Portions of Declarations Under Seal filed by California Reform Sex Offender Laws, John Doe, Jack Roe.(Related document(s) 19 ) (tn, COURT STAFF) (Filed on 11/7/2012) (Entered: 11/07/2012)
28 Declaration of David G. Post in Support of re 19 Administrative MOTION for Leave to Proceed Anonymously and to File Portions of Declarations Under Seal filed by California Reform Sex Offender Laws, John Doe, Jack Roe.(Related document(s) 19 ) (tn, COURT STAFF) (Filed on 11/7/2012) (Entered: 11/07/2012)
29 Declaration of Brian R. Abbott in Support of re 19 Administrative MOTION for Leave to Proceed Anonymously and to File Portions of Declarations Under Seal filed by California Reform Sex Offender Laws, John Doe, Jack Roe. (Related document(s) 19 ) (tn, COURT STAFF) (Filed on 11/7/2012) (Entered: 11/07/2012)
30 Declaration of Charlene Steen in Support of re 19 Administrative MOTION for Leave to Proceed Anonymously and to File Portions of Declarations Under Seal filed by California Reform Sex Offender Laws, John Doe, Jack Roe.(Related document(s) 19 ) (tn, COURT STAFF) (Filed on 11/7/2012) (Entered: 11/07/2012)
31 Declaration of R. Karl Hanson in Support of re 19 Administrative MOTION for Leave to Proceed Anonymously and to File Portions of Declarations Under Seal filed by California Reform Sex Offender Laws, John Doe, Jack Roe.(Related document(s) 19 ) (tn, COURT STAFF) (Filed on 11/7/2012) (Entered: 11/07/2012)
32 Declaration of David Finkelhor in Support of re 19 Administrative MOTION for Leave to Proceed Anonymously and to File Portions of Declarations Under Seal filed by California Reform Sex Offender Laws, John Doe, Jack Roe.(Related document(s) 19 ) (tn, COURT STAFF) (Filed on 11/7/2012) (Entered: 11/07/2012)
CASE DESIGNATED for Electronic Filing. (tn, COURT STAFF) (Entered: 11/07/2012)
33 SUMMONS Returned Executed by John Doe. Kamala D. Harris served on 11/7/2012, answer due 11/28/2012. (Lye, Linda) (Filed on 11/7/2012) (Entered: 11/07/2012)

Case: 3:12-cv-5713 As of: 12/09/2017 10:13 AM PST 6 of 13

11/07/2012 11/07/2012 11/07/2012
11/07/2012 11/08/2012 11/08/2012 11/08/2012 11/12/2012
11/12/2012 11/12/2012 11/12/2012 11/13/2012 11/13/2012
11/13/2012 11/14/2012

34 CERTIFICATE OF SERVICE by John Doe re 1 Complaint, Motion for TRO, Class Cert and to Proceed Anonymously and Supporting Papers on Defendant HARRIS (Lye, Linda) (Filed on 11/7/2012) (Entered: 11/07/2012)
35 SUMMONS Returned Executed by John Doe. City of Alameda served on 11/7/2012, answer due 11/28/2012. Proof of Service of Complaint, Motion for TRO, Class Cert and to Proceed Anonymously and Supporting Papers (Lye, Linda) (Filed on 11/7/2012) (Entered: 11/07/2012)
36 ORDER Signed by The Honorable Thelton E. Henderson granting re 6 Temporary Restraining Order and Order to Show Cause as to Why a Preliminary Injunction Should not Issue. Plaintiffs to file proof of service by 11/08/2012. Oppositions due 11/13/2012. Reply due 11/16/2012. (tehlc3, COURT STAFF) (Filed on 11/7/2012) (Entered: 11/07/2012)
Motion Hearing on Plaintiffs' motion for a preliminary injunction set for 11/20/2012 at 10:00 AM in Courtroom 2, 17th Floor, San Francisco before the Hon. Thelton E. Henderson. (tehlc3, COURT STAFF) (Filed on 11/7/2012) (Entered: 11/07/2012)
37 CERTIFICATE OF SERVICE by California Reform Sex Offender Laws, John Doe, Jack Roe (Temporary Restraining Order electronic service) (Risher, Michael) (Filed on 11/8/2012) (Entered: 11/08/2012)
38 Proposed Order re 19 MOTION for Leave to Proceed Anonymously and to File Portions of Declarations Under Seal by John Doe. (Lye, Linda) (Filed on 11/8/2012) (Entered: 11/08/2012)
39 CERTIFICATE OF SERVICE by California Reform Sex Offender Laws, John Doe, Jack Roe (Temporary Restraining Order−personal service on state) (Risher, Michael) (Filed on 11/8/2012) (Entered: 11/08/2012)
40 NOTICE OF MOTION & MOTION to Intervene; Memorandum of Points and Authorities in Support Thereof filed by Daphne Phung, Chris Kelly. Motion Hearing set for 12/17/2012 at 10:00 AM in Courtroom 2, 17th Floor, San Francisco before Hon. Thelton E. Henderson. Responses due by 11/26/2012. Replies due by 12/3/2012. (Prinzing, Margaret) (Filed on 11/12/2012) (Entered: 11/12/2012)
41 [Proposed] Order Granting re 40 MOTION to Intervene; Memorandum of Points and Authorities in Support Thereof filed by Chris Kelly, Daphne Phung. (Prinzing, Margaret) (Filed on 11/12/2012) (Entered: 11/12/2012)
42 Declaration of Margaret R. Prinzing in Support of re 40 MOTION to Intervene; Memorandum of Points and Authorities in Support Thereof filed by Chris Kelly, Daphne Phung. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Related document(s) 40 ) (Prinzing, Margaret) (Filed on 11/12/2012) (Entered: 11/12/2012)
43 PROOF OF SERVICE filed by Chris Kelly, Daphne Phung of re 40 Motion to Intervene, re 41 Declaration in Support, re 42 [Proposed] Order (Prinzing, Margaret) (Filed on 11/12/2012) (Entered: 11/12/2012)
44 RESPONSE to (re 19 Administrative MOTION for Leave to Proceed Anonymously and to File Portions of Declarations Under Seal) filed by Chris Kelly, Daphne Phung. (Harrison, James) (Filed on 11/13/2012) (Entered: 11/13/2012)
45 STIPULATION and [PROPOSED] ORDER Re 36 Extension of Temporary Restratining Order & Briefing & Hearing Schedule Regarding Plaintiffs' Motion for Preliminary Injunction filed by Kamala D. Harris, John Doe, Jack Roe, California Reform Sex Offender Laws. (Attachments: #(1) [Proposed] Order, #(2) Certificate/Proof of Service)(Wilson, Robert) (Filed on 11/13/2012) (Entered: 11/13/2012)
46 PROOF OF SERVICE filed by Chris Kelly, Daphne Phung (Harrison, James) (Filed on 11/13/2012) (Entered: 11/13/2012)
47 STIPULATION and [PROPOSED] ORDER re: Extending time for City of Alameda to Respond to Complaint and re: City's desire not to participate in litigation over plaintiffs' motions for preliminary injunction, to proceed anonymously, for partial sealing, and for provisional class certification filed by California Reform Sex Offender Laws, John Doe, Jack Roe. (Attachments: #(1) Certificate/Proof of

Case: 3:12-cv-5713 As of: 12/09/2017 10:13 AM PST 7 of 13

11/14/2012
11/14/2012
11/15/2012 11/15/2012 11/16/2012 11/16/2012 11/26/2012 11/26/2012
11/26/2012
11/26/2012 11/26/2012
11/26/2012 11/26/2012 11/28/2012

Service)(Risher, Michael) (Filed on 11/14/2012) (Entered: 11/14/2012)
48 STIPULATION AND ORDER re Extension of Temporary Restraining Order and Briefing and Hearing Schedule for Plaintiffs' Motion for a Preliminary Injunction re 45 . Responses due by 11/26/2012. Replies due by 12/3/2012. Motion Hearing set for 12/17/2012 10:00 AM in Courtroom 2, 17th Floor, San Francisco. Signed by Judge Thelton E. Henderson on 11/14/2012. (tmi, COURT STAFF) (Filed on 11/14/2012) (Entered: 11/14/2012)
Set/Reset Deadlines as to 40 MOTION to Intervene ; Memorandum of Points and Authorities in Support Thereof. Responses due by 11/26/2012. Replies due by 12/3/2012. Motion Hearing set for 12/17/2012 10:00 AM in Courtroom 2, 17th Floor, San Francisco before Hon. Thelton E. Henderson. (tmi, COURT STAFF) (Filed on 11/14/2012) (Entered: 11/14/2012)
49 ORDER Signed by Judge Thelton E. Henderson Granting in Part re 19 Plaintiffs' Motion for leave to proceed anonymously and to file declarations under seal. (tehlc1, COURT STAFF) (Filed on 11/15/2012) (Entered: 11/15/2012)
50 ORDER Allowing Filing Under Seal re: order 49 . Signed by Judge Thelton E. Henderson on 11/15/12. This is a text−only docket entry; there is no document attached.(tehlc1, COURT STAFF) (Filed on 11/15/2012) (Entered: 11/15/2012)
51 DOCUMENT E−FILED UNDER SEAL re 50 Order Granting Motion to File Under Seal Decl of John Doe ISO TRO & PI by John Doe. (Lye, Linda) (Filed on 11/16/2012) (Entered: 11/16/2012)
52 DOCUMENT E−FILED UNDER SEAL re 50 Order Granting Motion to File Under Seal Decl of Jack Roe ISO TRO & PI by Jack Roe. (Lye, Linda) (Filed on 11/16/2012) (Entered: 11/16/2012)
53 RESPONSE to (re 40 MOTION to Intervene; Memorandum of Points and Authorities in Support Thereof) filed by John Doe, Jack Roe. (Attachments: #(1) Declaration of Hanni M. Fakhoury)(Fakhoury, Hanni) (Filed on 11/26/2012) (Entered: 11/26/2012)
54 RESPONSE to (re 6 Ex−parte Application for Temporary Restraining Order and Order to Show Cause Why Preliminary Injunction Should Not Issue; Memorandum of Points and Authorities in Support Thereof) −Opposition to Preliminary Injunction Motion− filed by Kamala D. Harris. (Attachments: #(1) Declaration, #(2) Declaration, #(3) Supplement, #(4) Certificate/Proof of Service)(Wilson, Robert) (Filed on 11/26/2012) (Entered: 11/26/2012)
55 RESPONSE to (re 6 Ex−parte Application for Temporary Restraining Order and Order to Show Cause Why Preliminary Injunction Should Not Issue; Memorandum of Points and Authorities in Support Thereof) −Proposed Interveners' Opposition to Motion for Preliminary Injunction− filed by Chris Kelly & Daphne Phung. (Harrison, James) (Filed on 11/26/2012) (Entered: 11/26/2012)
56 Declaration of Sharmin Bock in Support of re 55 Opposition/Response to Motion for Preliminary Injunction filed by Chris Kelly & Daphne Phung. (Related document(s) 55 ) (Harrison, James) (Filed on 11/26/2012) (Entered: 11/26/2012)
57 Request for Judicial Notice in Support of re 55 Opposition/Response to Motion for for Preliminary Injunction; Declaration of Brian Metzker filed by Chris Kelly, Daphne Phung. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Related document(s) 55 ) (Harrison, James) (Filed on 11/26/2012) (Entered: 11/26/2012)
58 Interveners' Joinder in Defendant Harris' Objections to the Declaration of David G. Post filed filed by Chris Kelly & Daphne Phung. (Harrison, James) (Filed on 11/26/2012) (Entered: 11/26/2012)
59 CERTIFICATE OF SERVICE filed by Chris Kelly & Daphne Phung of [Opposition to Preliminary Injunction Motion and Related Documents] (Harrison, James) (Filed on 11/26/2012) (Entered: 11/26/2012)
60 ANSWER to Complaintfor Declaratory and Injunctive Relief filed by Kamala D. Harris. (Attachments: #(1) Certificate/Proof of Service)(Wilson, Robert) (Filed on

Case: 3:12-cv-5713 As of: 12/09/2017 10:13 AM PST 8 of 13

11/30/2012 12/03/2012 12/03/2012 12/03/2012 12/03/2012 12/03/2012 12/03/2012
12/11/2012 12/11/2012
12/12/2012 12/13/2012 12/17/2012 12/19/2012 12/29/2012

11/28/2012) (Entered: 11/28/2012)
61 STIPULATED ADMINISTRATIVE MOTION Regarding Page Limitation for Plaintiffs' Reply filed by California Reform Sex Offender Laws, John Doe, Jack Roe. (Attachments: #(1) Stipulation and [Proposed] Order) (Risher, Michael) (Filed on 11/30/2012) (Entered: 11/30/2012)
62 STIPULATION AND ORDER Regarding Page Limitation for Plaintiffs' Reply re 61 . Signed by Judge Thelton E. Henderson on 12/03/2012. (tmi, COURT STAFF) (Filed on 12/3/2012) (Entered: 12/03/2012)
63 REPLY in Support of (re 40 MOTION to Intervene; Memorandum of Points and Authorities in Support Thereof) filed by Chris Kelly, Daphne Phung. (Prinzing, Margaret) (Filed on 12/3/2012) (Entered: 12/03/2012)
64 Declaration of James C. Harrison in Support of re 40 MOTION to Intervene; Memorandum of Points and Authorities in Support Thereof filed by Chris Kelly, Daphne Phung. (Attachments: #(1) Exhibit 1)(Related document(s) 40 ) (Prinzing, Margaret) (Filed on 12/3/2012) (Entered: 12/03/2012)
65 Plaintiffs' Reply In Support Of re 6 Motion for Preliminary Injunction filed by California Reform Sex Offender Laws, John Doe, Jack Roe. (Related document(s) 6 ) (Risher, Michael) (Filed on 12/3/2012) (Entered: 12/03/2012)
66 OBJECTIONS to Evidence & Response to Defendants' & Proponents' Objections to Evidence, re 54 Opposition/Response to Motion, to the Declaration of David G. Post filed by California Reform Sex Offender Laws, John Doe, Jack Roe. (Fakhoury, Hanni) (Filed on 12/3/2012) (Entered: 12/03/2012)
67 Declaration of Hanni Fakhoury in Support of re 65 Plaintiffs' Reply in Support of Motion for Preliminary Injunction and re 66 Plaintiffs' Objections to Evidence filed by California Reform Sex Offender Laws, John Doe, Jack Roe. (Attachments: #(1) Exhibit 1, #(2) Exhibit 2, #(3) Exhibit 3, #(4) Exhibit 4, #(5) Exhibit 5, #(6) Exhibit 6) (Related document(s) 66 , 65 ) (Fakhoury, Hanni) (Filed on 12/3/2012) (Entered: 12/03/2012)
68 Administrative MOTION to Submit Notice of Grant of Certiorari and Clarifying Evidence filed by California Reform Sex Offender Laws, John Doe, Jack Roe. (Risher, Michael) (Filed on 12/11/2012) (Entered: 12/11/2012)
69 Declaration of Michael T. Risher in Support of re 68 Administrative MOTION to Submit Notice of Grant of Certiorari and Clarifying Evidence filed by California Reform Sex Offender Laws, John Doe, Jack Roe. (Attachments: #(1) Exhibit A, #(2) Exhibit B)(Related document(s) 68 ) (Risher, Michael) (Filed on 12/11/2012) (Entered: 12/11/2012)
70 [Proposed] Order Granting re 68 Administrative MOTION to Submit Notice of Grant of Certiorari and Clarifying Evidence −− [Proposed] Order filed by California Reform Sex Offender Laws, John Doe, Jack Roe. (Risher, Michael) (Filed on 12/12/2012) (Entered: 12/12/2012)
71 ORDER with questions for counsel for December 17 Hearing. Signed by Judge Thelton E. Henderson on 12/13/2012. (tehlc2, COURT STAFF) (Filed on 12/13/2012) (Entered: 12/13/2012)
72 Minute Entry: Motion Hearing held on 12/17/2012 before Judge Thelton E. Henderson. Motions are taken under submission. (Court Reporter: Christine Triska) (tmi, COURT STAFF) (Date Filed: 12/17/2012) (Entered: 12/17/2012)
73 ORDER Signed by The Honorable Thelton E. Henderson granting re 68 Administrative Motion to submit notice of grant of certiorari and clarifying evidence. (tmi, COURT STAFF) (Filed on 12/19/2012) (Entered: 12/19/2012)
74 Transcript of Proceedings held on December 17, 2012, before Judge Thelton E. Henderson. Court Reporter/Transcriber Christine A. Triska, Telephone number (650)743−8425; christinetriska@sbcglobal.net. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the

Case: 3:12-cv-5713 As of: 12/09/2017 10:13 AM PST 9 of 13

01/02/2013 01/10/2013
01/10/2013 01/11/2013 01/16/2013
01/17/2013 01/17/2013 01/17/2013 01/17/2013 01/22/2013 01/22/2013 01/22/2013 01/22/2013 01/25/2013 01/28/2013
01/29/2013
01/31/2013

deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 3/29/2013. (cat, COURT STAFF) (Filed on 12/29/2012) (Entered: 12/29/2012)
75 Order to Pro Tem Reporter to Produce Transcript. Signed by Judge Thelton E. Henderson on 12/21/12. (tehlc1, COURT STAFF) (Filed on 1/2/2013) (Entered: 01/02/2013)
76 *** FILED IN ERROR. PLEASE SEE DOCKET # 77 *** ORDER by Judge Thelton E. Henderson granting 40 Motion to Intervene. (tehlc2, COURT STAFF) (Filed on 1/10/2013) Modified on 1/10/2013 (tmi, COURT STAFF). (Entered: 01/10/2013)
77 CORRECTION OF DOCKET # 76 . ORDER by Judge Thelton E. Henderson granting 40 Motion to Intervene. (tmi, COURT STAFF) (Filed on 1/10/2013) (Entered: 01/10/2013)
78 ORDER granting re 6 Plaintiffs' motion for a preliminary injunction. Signed by Judge Thelton E. Henderson on 01/11/13. (tehlc3, COURT STAFF) (Filed on 1/11/2013) (Entered: 01/11/2013)
79 STIPULATION AND ORDER extending time for City of Alameda to respond to Complaint and re: City's desire not to participate in litigation over plaintiffs' motions for preliminary injunction, to proceed anonymously, for partial sealing, and for provisional class certification. Signed by Judge Thelton E. Henderson on 01/16/2013. (tmi, COURT STAFF) (Filed on 1/16/2013) (Entered: 01/16/2013)
80 Interveners' ANSWER to Complaint filed by Chris Kelly, Daphne Phung. (Prinzing, Margaret) (Filed on 1/17/2013) (Entered: 01/17/2013)
81 CERTIFICATE OF SERVICE by Chris Kelly, Daphne Phung re 80 Answer to Complaint (Prinzing, Margaret) (Filed on 1/17/2013) (Entered: 01/17/2013)
82 Certification of Interested Entities or Persons filed by Chris Kelly, Daphne Phung (Prinzing, Margaret) (Filed on 1/17/2013) (Entered: 01/17/2013)
83 CERTIFICATE OF SERVICE by Chris Kelly, Daphne Phung re 82 Certificate of Interested Entities (Prinzing, Margaret) (Filed on 1/17/2013) (Entered: 01/17/2013)
84 ADR Certification (ADR L.R. 3−5 b) of discussion of ADR options by Pltfs Doe, Roe and Calif Reform (Lye, Linda) (Filed on 1/22/2013) (Entered: 01/22/2013)
85 NOTICE of need for ADR Phone Conference (ADR L.R. 3−5 d) (Lye, Linda) (Filed on 1/22/2013) (Entered: 01/22/2013)
86 ADR Certification (ADR L.R. 3−5 b) of discussion of ADR options (Prinzing, Margaret) (Filed on 1/22/2013) (Entered: 01/22/2013)
87 ADR Certification (ADR L.R. 3−5 b) of discussion of ADR options (Wilson, Robert) (Filed on 1/22/2013) (Entered: 01/22/2013)
88 PLAINTIFFS' NOTICE OF DISMISSAL OF DEFENDANT CITY OF ALAMEDA filed by John Doe (Risher, Michael) (Filed on 1/25/2013) (Entered: 01/25/2013)
89 Declaration of Linda Schweig re Notice of Preliminary Injunction to California Law Enforcement Agencies re 78 filed by Kamala D. Harris. (Attachments: #(1) Certificate/Proof of Service)(Wilson, Robert) (Filed on 1/28/2013) (Entered: 01/28/2013)
90 ADR Clerk Notice Setting ADR Phone Conference on 2/6/13 at 10:00 a.m. Pacific. Please note that you must be logged into an ECF account of counsel of record in order to view this document. (sgd, COURT STAFF) (Filed on 1/29/2013) (Entered: 01/29/2013)
91 Stipulation and [Proposed] Order Continuing Intitial Case Management Conference filed by John Doe, Kamala D. Harris. (Risher, Michael) (Filed on 1/31/2013) (Entered: 01/31/2013)

Case: 3:12-cv-5713 As of: 12/09/2017 10:13 AM PST 10 of 13

02/04/2013 02/06/2013 02/11/2013 02/11/2013
02/11/2013
02/12/2013
02/14/2013 02/20/2013 02/22/2013 02/25/2013 02/28/2013 04/07/2013 08/21/2013

92 STIPULATION AND ORDER Continuing Case Management Conference. Case Management Conference set for 3/4/2013 01:30 PM in Courtroom 12, 19th Floor, San Francisco. Signed by Judge Thelton E. Henderson on 02/04/2013. (tmi, COURT STAFF) (Filed on 2/4/2013) (Entered: 02/04/2013)
ADR Remark: ADR Phone Conference held by GDB on 2/6/13. (sgd, COURT STAFF) (Filed on 2/6/2013) (Entered: 02/06/2013)
93 NOTICE OF PRELIMINARY INJUNCTION APPEAL to the United States Court of Appeals for the Ninth Circuit filed by Intervenors Chris Kelly, Daphne Phung. [Appeal Fee of $455.00 Paid, receipt number 0971−7473257] (Prinzing, Margaret) (Filed on 2/11/2013) (Entered: 02/11/2013)
94 [DOCKETED IN ERROR...PLS. DISREGARD...REFER TO DOCUMENT NUMBER re 95 ]...NOTICE OF APPEAL to the Federal Circuit as to 78 Order by Kamala D. Harris. Filing fee $ 455, receipt number 0971−7473511. Preliminary Injunction Appeal Appeal Record due by 2/11/2013. (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B, # 3 Certificate/Proof of Service Certificate of Service)(Wilson, Robert) (Filed on 2/11/2013)...Modified on 2/11/2013 (tn, COURT STAFF). (Entered: 02/11/2013)
95 NOTICE OF PRELIMINARY INJUNCTION APPEAL filed by Defendant Kamala D. Harris as to re 78 Order Granting Plaintiffs' Motion for a Preliminary Injunction −Preliminary Injunction Appeal, [Appeal Fee of $455.00 Paid, receipt number 0971−7473511] (Amended to change docket text from Notice of Appeal to the Federal Circuit to Notice of Appeal to the United States court of Appeals for the Ninth Circuit). (Attachments: #(1) Exhibit Exhibit A, #(2) Exhibit Exhibit B, #(3) Certificate/Proof of Service Certificate of Service)(Wilson, Robert) (Filed on 2/11/2013) (Entered: 02/11/2013)
96 Transmission of Notice of Appeals & Docket Sheet to the United States Court of Appeals for the Ninth Circuit as to re 95 Notice of Preliminary InjunctionAppeal filed by Defendant Kamala D. Harris & re 93 Notice of Preliminary Injunction Appeal filed by Intervenors Daphne Phung & Chris Kelly. (tn, COURT STAFF) (Filed on 2/12/2013) (tn, COURT STAFF). (Additional attachment(s) added on 2/12/2013: # 1 Notice of Appeal Notification Form) (tn, COURT STAFF). (Additional attachment(s) added on 2/12/2013: # 2 Notice of Preliminary Injunction Appeal by Intervenors) (tn, COURT STAFF). (Additional attachment(s) added on 2/12/2013: # 3 Notice of Preliminary Injunction Appeal by Defendant Harris) (tn, COURT STAFF). (Additional attachment(s) added on 2/12/2013: # 4 Civil Docket Sheet) (tn, COURT STAFF). (Entered: 02/12/2013)
97 Transcript Designation and Ordering Form (Wilson, Robert) (Filed on 2/14/2013) (Entered: 02/14/2013)
98 United States Court of Appeals for the Ninth Circuit CASE NUMBER 13−15263 for re 93 Notice of Preliminary Injunction Appeal filed by Daphne Phung, Chris Kelly. (tn, COURT STAFF) (Filed on 2/20/2013) (Entered: 02/20/2013)
99 STIPULATION OF COUNSEL AND [PROPOSED] ORDER Granting Stay of District Court Proceedings Pending Appeal and Vacating Presently Calendared Court Dates filed by Kamala D. Harris. (Attachments: #(1) Stipulation of Counsel and [Proposed] Order)(Wilson, Robert) (Filed on 2/22/2013) (Entered: 02/22/2013)
100 STIPULATION AND ORDER Staying Proceedings Pending Appeal and Vacating Presently Calendared Court Dates. Signed by Judge Thelton E. Henderson on 02/25/2013. (tmi, COURT STAFF) (Filed on 2/25/2013) (Entered: 02/25/2013)
101 United States Court of Appeals for the Ninth Circuit CASE NUMBER 13−15267 for re 95 Amended Notice of Preliminary Injunction Appeal filed by Kamala D. Harris. (tn, COURT STAFF) (Filed on 2/28/2013) (Entered: 02/28/2013)
102 NOTICE of Change of Address by Hanni Meena Fakhoury (Fakhoury, Hanni) (Filed on 4/7/2013) (Entered: 04/07/2013)
103 ORDER re: correspondence from individual members of the putative class. All such letters will be forwarded to Plaintiffs' counsel. Signed by Judge Thelton E. Henderson on 08/21/13. (tehlc3, COURT STAFF) (Filed on 8/21/2013) (Entered:

Case: 3:12-cv-5713 As of: 12/09/2017 10:13 AM PST 11 of 13

11/14/2014 11/24/2014 12/04/2014 01/13/2015 02/27/2015 02/27/2015 03/02/2015
03/12/2015 03/13/2015
03/30/2015 04/07/2015

08/21/2013)
104 ORDER of USCA as to re 95 Amended Notice of Appeal filed by Kamala D. Harris & re 93 Notice of Appeal filed by Daphne Phung, Chris Kelly. (tnS) (Filed on 11/14/2014) (Entered: 11/14/2014)
105 USCA Opinion as to re 95 Amended Notice of Appeal filed by Kamala D. Harris & re 93 Notice of Appeal filed by Daphne Phung, Chris Kelly. (tnS) (Filed on 11/24/2014) (Entered: 11/24/2014)
106 ORDER of USCA as to re 95 Amended Notice of Appeal filed by Kamala D. Harris & re 93 Notice of Appeal filed by Daphne Phung, Chris Kelly. (tnS) (Filed on 12/4/2014) (Entered: 12/04/2014)
107 ORDER of USCA as to re 93 Notice of Preliminary Injunction Appeal filed by Daphne Phung, Chris Kelly. (tnS) (Filed on 1/13/2015) (Entered: 01/13/2015)
108 MANDATE of USCA as to re 95 Amended Notice of Appeal filed by Kamala D. Harris & re 93 Notice of Appeal filed by Daphne Phung, Chris Kelly. (tnS) (Filed on 2/27/2015) (Entered: 02/27/2015)
109 CLERK'S Letter Spreading USCA Mandate to Counsel. (tnS) (Filed on 2/27/2015) (Entered: 02/27/2015)
110 CLERK'S NOTICE Scheduling Case Management Conference. Case Management Statement due by 3/23/2015. Initial Case Management Conference set for 3/30/2015 01:30 PM in Courtroom 12, 19th Floor, San Francisco. This is a text only docket entry. There is no document associated with this notice. (tmiS, COURT STAFF) (Filed on 3/2/2015) (Entered: 03/02/2015)
111 STIPULATION WITH [PROPOSED] ORDER to Continue Case Management Conference by One Week filed by California Reform Sex Offender Laws, John Doe, Jack Roe. (Risher, Michael) (Filed on 3/12/2015) (Entered: 03/12/2015)
112 STIPULATION AND ORDER to Continue Case Management Conference. Case Management Statement due by 3/30/2015. Initial Case Management Conference set for 4/6/2015 01:30 PM in Courtroom 12, 19th Floor, San Francisco. Signed by Judge Thelton E. Henderson on 03/12/2015. (tmi, COURT STAFF) (Filed on 3/13/2015) (Entered: 03/13/2015)
113 JOINT CASE MANAGEMENT STATEMENT & [Proposed] Order filed by California Reform Sex Offender Laws, John Doe, Jack Roe. (Fakhoury, Hanni) (Filed on 3/30/2015) (Entered: 03/30/2015)
114 Minute Entry for proceedings held before Hon. Thelton E. Henderson: Initial Case Management Conference held on 4/6/2015. Intervenors' request to stay case is granted; Court will issue written order.

04/07/2015 09/14/2015 10/19/2015 10/26/2015

Not Reported. Plaintiff Attorney Michael Risher; Hanni Fakhoury. Defendant Attorney Robert Wilson. Intervenor: Margaret Prinzing. This is a text only Minute Entry (tmi, COURT STAFF) (Date Filed: 4/7/2015) (Entered: 04/07/2015)
115 ORDER STAYING CASE. Case Management Statement due by 10/19/2015. Further Case Management Conference set for 10/26/2015 01:30 PM in Courtroom 12, 19th Floor, San Francisco. Signed by Judge Thelton E. Henderson on 04/07/2015. (tehlc1, COURT STAFF) (Filed on 4/7/2015) (Entered: 04/07/2015)
116 STATUS REPORT by Chris Kelly, Daphne Phung. (Attachments: # 1 Attachment A, # 2 Attachment B, # 3 Attachment C)(Prinzing, Margaret) (Filed on 9/14/2015) (Entered: 09/14/2015)
117 JOINT CASE MANAGEMENT STATEMENT AND [PROPOSED] ORDER filed by John Doe. (Attachments: #(1) Proposed Order Granting Declaration)(Lye, Linda) (Filed on 10/19/2015) (Entered: 10/19/2015)
118 Minute Entry for proceedings held before Hon. Thelton E. Henderson: Further Case Management Conference held on 10/26/2015. Court grants proposed order included in the case management statement. Case Management Statement due by 3/14/2016. Further Case Management Conference set for 3/21/2016 01:30 PM in

Case: 3:12-cv-5713 As of: 12/09/2017 10:13 AM PST 12 of 13

Courtroom 12, 19th Floor, San Francisco.

10/26/2015 10/28/2015 03/08/2016 03/09/2016
06/09/2016 07/07/2016 07/13/2016
10/06/2016 10/11/2016 10/11/2016
10/11/2016 11/04/2016 12/07/2016 12/07/2016

Not Reported. Plaintiff Attorney: Linda Lye; Hanni Fakhoury. Defendant Attorney: Robert Wilson. Intervenor: Margaret Prinzing. This is a text only Minute Entry (tmiS, COURT STAFF) (Date Filed: 10/26/2015) (Entered: 10/26/2015)
119 Scheduling ORDER. Signed by Judge Thelton E. Henderson on 10/26/15. (tehlc1S, COURT STAFF) (Filed on 10/26/2015) (Entered: 10/26/2015)
120 NOTICE of Change In Counsel by Hanni Meena Fakhoury (Fakhoury, Hanni) (Filed on 10/28/2015) (Entered: 10/28/2015)
121 JOINT CASE MANAGEMENT STATEMENT & [PROPOSED] ORDER filed by John Doe. (Risher, Michael) (Filed on 3/8/2016) (Entered: 03/08/2016)
122 ORDER on Joint Case Management Statement and Continuing Case Management Conference. Case Management Statement due by 7/11/2016. Further Case Management Conference set for 7/18/2016 01:30 PM in Courtroom 12, 19th Floor, San Francisco. Signed by Judge Thelton E. Henderson on 03/09/2016. (tmiS, COURT STAFF) (Filed on 3/9/2016) (Entered: 03/09/2016)
123 NOTICE of Change of Address by Margaret R. Prinzing (Prinzing, Margaret) (Filed on 6/9/2016) (Entered: 06/09/2016)
124 CASE MANAGEMENT STATEMENT & [PROPOSED] ORDER −− JOINT filed by Chris Kelly, Daphne Phung. (Prinzing, Margaret) (Filed on 7/7/2016) (Entered: 07/07/2016)
125 ORDER RE FURTHER CASE MANAGEMENT CONFERENCE: Case Management Statement due by 10/10/2016. Further Case Management Conference set for 10/17/2016 at 01:30 PM in Courtroom 12, 19th Floor, San Francisco. Signed by Judge Thelton E. Henderson on 7/12/2016. (afmS, COURT STAFF) (Filed on 7/13/2016) (Entered: 07/13/2016)
126 STIPULATION WITH [PROPOSED] ORDER re Stipulated Request for Order Continuing Case Management Conference; Declaration of Margaret R. Prinzing filed by Chris Kelly, Daphne Phung. (Prinzing, Margaret) (Filed on 10/6/2016) (Entered: 10/06/2016)
127 JOINT CASE MANAGEMENT STATEMENT & [PROPOSED] ORDER filed by Kamala D. Harris, Daphne Phung. (Attachments: # 1 Exhibit Senate Bill No. 448)(Prinzing, Margaret) (Filed on 10/11/2016) (Entered: 10/11/2016)
128 STIPULATION AND MODIFIED ORDER CONTINUING CASE MANAGEMENT CONFERENCE by Hon. Thelton E. Henderson; granting 126 Stipulation. The Case Management Conference currently scheduled for 10/17/2016 is continued to 1/23/2017 at 1:30 PM. Joint Case Management Conference Statement due on or before 1/16/2017.(tlS, COURT STAFF) (Filed on 10/11/2016) (Entered: 10/11/2016)
Set/Reset Deadlines:, Set/Reset Hearing re 128 Order on Stipulation, Joint Case Management Statement due by 1/16/2017. Further Case Management Conference set for 1/23/2017 01:30 PM in Courtroom 12, 19th Floor, San Francisco. (tlS, COURT STAFF) (Filed on 10/11/2016) (Entered: 10/11/2016)
129 NOTICE of Appearance by Benjamin Matthew Glickman as Co−Counsel for Defendant Kamala D. Harris (Glickman, Benjamin) (Filed on 11/4/2016) (Entered: 11/04/2016)
130 Stipulation and Joint Request to Extend Time to Claim Costs and Fees and to Allow Fee Amount to be Resolved by Stipulation and [Proposed] Order filed by John Doe. (Risher, Michael) (Filed on 12/7/2016) (Entered: 12/07/2016)
131 Declaration of Michael T. Risher in Support of Stipulated Request to Extend Time to File Motion for Attorney's Fees and Costs, and to Allow Fee Amount to be Resolved by Stipulation filed byJohn Doe. (Risher, Michael) (Filed on 12/7/2016) (Entered: 12/07/2016)

Case: 3:12-cv-5713 As of: 12/09/2017 10:13 AM PST 13 of 13

12/09/2016 12/27/2016 01/03/2017 01/11/2017 01/12/2017

132 STIPULATION AND ORDER EXTENDING TIME TO CLAIM COSTS AND FEES AND TO ALLOW FEE AMOUNT TO BE RESOLVED BY STIPULATION AND JOINT REQUEST by Hon. Thelton E. Henderson; granting 130 Stipulation. (tlS, COURT STAFF) (Filed on 12/9/2016) (Entered: 12/09/2016)
133 STIPULATION WITH PROPOSED ORDER Stipulation and Joint Request for a Court Order Re: the Parties' Settlement of Plaintiffs' Claim for Costs and Attorneys' Fees and [Proposed] Order filed by John Doe. (Risher, Michael) (Filed on 12/27/2016) (Entered: 12/27/2016)
134 STIPULATION AND JOINT REQUEST FOR A COURT ORDER RE: PARTIES' SETTLEMENT OF PLAINTIFF'S CLAIM FOR COSTS AND ATTORNEYS' FEES AND ORDER by Hon. Thelton E. Henderson granting 133 Stipulation.(tlS, COURT STAFF) (Filed on 1/3/2017) (Entered: 01/03/2017)
135 STIPULATION WITH PROPOSED ORDER Stipulation and Joint Request for Dismissal Under Federal Rule of Civil Procedure 41(a)(1)(A)(ii) and [Proposed] Order filed by John Doe. (Risher, Michael) (Filed on 1/11/2017) (Entered: 01/11/2017)
136 STIPULATION AND ORDER FOR DISMISSAL by Hon. Thelton E. Henderson granting 135 Stipulation.(tlS, COURT STAFF) (Filed on 1/12/2017) (Entered: 01/12/2017)

 
 1 KAMALA D. HARRIS Attorney General of California
2 PETER K. SOUTHWORTH Supervising Deputy Attorney General
3 ROBERT D. WILSON Deputy Attorney General
4 State Bar No. 136736 1300 I Street, Suite 125
5 P.O. Box 944255 Sacramento, CA 94244-2550
6 Telephone: (916) 327-7870 Fax: (916) 324-8835
7 E-mail: Robert.Wilson@doj.ca.gov Attorneys for Kamala D. Harris,
8 Attorney General of California

9

IN THE UNITED STATES DISTRICT COURT

10

FOR THE NORTHERN DISTRICT OF CALIFORNIA

11

12

13

JOHN DOE, JACK ROE, AND

Case No. 3:12-cv-05713-TEH

14 CALIFORNIA REFORM SEX OFFENDER

LAWS, ON BEHALF OF THEMSELVES AND

[PROPOSED] ORDER RE EXTENSION

15 OTHERS SIMILARLY SITUATED,

OF TEMPORARY RESTRAINING

ORDER AND BRIEFING AND

16

Plaintiffs, HEARING SCHEDULE REGARDING

PLAINTIFFS’ MOTION FOR A

17

v.

PRELIMINARY INJUNCTION

18

Courtroom: 12

KAMALA D. HARRIS, ATTORNEY

Judge:

The Honorable Thelton E.

19 GENERAL OF CALIFORNIA, AND CITY OF

Henderson

ALAMEDA,

Trial Date: Not Set

20

Action Filed: November 6, 2012

Defendants.

21

22

23

On November 7, 2012, this Court granted Plaintiffs’ request for a temporary restraining

24 order (“TRO”) pending a hearing on a motion whether a preliminary injunction should issue

25 against Defendant Kamala D. Harris, California Attorney General (the “Attorney General”) in

26 this action. In issuing the order, the Court invited the parties to meet and confer to attempt to

27 reach an agreement on an extension of the TRO and a briefing and hearing schedule on the

28 Motion for a Preliminary Injunction. The parties, through their respective counsel, have met and
1
[PROPOSED] ORDER RE TRO AND SCHEDULE FOR MOTION FOR PRELIMINARY INJUNCTION(3:12-cv-05713-TEH)

1 conferred and have reached an agreement regarding the continuance of the TRO, the briefing and

2 hearing schedule for Plaintiffs’ Motion for Preliminary Injunction, and other issues.

3

IT IS THEREFORE ORDERED THAT:

4

CLASS CERTIFICATION

5

1. Plaintiffs’ Motion for a Preliminary Injunction will be resolved without litigating the

6 issue of class certification at this time and without prejudice to the Attorney General to later

7 challenge class certification.

8

SCOPE AND EXTENSION OF TEMPORARY RESTRAINING ORDER

9

2. Pursuant to the stipulation of the parties, the TRO and any preliminary injunctive

10 relief granted by the Court will apply both to the named Plaintiffs and to all persons who are

11 required to register under California Penal Code § 290, including those whose duty to register

12 arises during the pendency of the TRO and any preliminary injunctive relief.

13

3. The application of the TRO to “all California state and local law enforcement

14 officers” shall be deleted. However, the California Department of Justice and local law

15 enforcement will not require registrants to submit the information covered by the TRO so long as

16 the TRO remains in effect.

17

4. The parties agree that the TRO, as modified by this stipulation, shall remain in effect

18 until the Court issues its ruling on Plaintiffs’ Motion for a Preliminary Injunction or January 11,

19 2013, whichever occurs first.

20

PLAINTIFFS’ MOTION TO PROCEED ANONYMOUSLY AND FILE UNDER SEAL

21

5. If Plaintiffs are permitted to proceed anonymously, Plaintiffs will provide the

22 Attorney General with the names and dates-of-birth of Plaintiffs Doe and Roe under a stipulated

23 protective order that prohibits her from publicizing or disseminating this information to any other

24 person or entity, including local law-enforcement agencies, or from using it for any purpose other

25 than defending this litigation, so that the Attorney General may evaluate their standing to bring

26 this case.

27

28
2
[PROPOSED] ORDER RE TRO AND SCHEDULE FOR MOTION FOR PRELIMINARY INJUNCTION(3:12-cv-05713-TEH)

1

FACIAL CHALLENGE TO PROPOSITION 35

2

6. Pursuant to the agreement of the parties, Plaintiffs will litigate this matter only as a

3 facial challenge until further notice, in which case the Attorney General will not take any

4 discovery from Plaintiffs Doe or Roe without leave of court. If Plaintiffs later raise an as-applied

5 challenge to Proposition 35, they will provide the Attorney General with at least 45 days notice

6 before filing any motion or other paper with the Court that raises such a challenge, so that the

7 Attorney General may take any appropriate discovery.

8

SCHEDULING OF MOTION FOR PRELIMINARY INJUNCTION

9

7. The hearing on the preliminary injunction shall be set for December 17, 2012, at

10 10:00 a.m. The Attorney General’s opposition papers shall be filed by November 26, 2012.

11 Plaintiffs shall file any reply papers by December 3, 2012.

12

8. The proponents of Proposition 35 have filed a Motion to Intervene in this action.

13 Consistent with the requirement in the TRO that any brief by Defendant-Intervenors be filed at

14 the same time as the Attorney General, if permitted to intervene, the proponents of Proposition 35

15 shall file any opposition papers by the stipulated due date of the Attorney General’s opposition

16 papers, November 26, 2012.

17

18

PURSUANT TO STIPULATION, IT IS SO ORDEREDTATES DISTRICT C

19

20 Dated: November ___1_4____, 2012

By _____________________________________

UNITED S
ALIFORNIA

OURT NORTH

21

HONORABLE THELTON E. HENDERSON

22

Judge Thelton E. Henderson

23 24

ERN DISTRICT OF C

25

26

27

28
3
[PROPOSED] ORDER RE TRO AND SCHEDULE FOR MOTION FOR PRELIMINARY INJUNCTION(3:12-cv-05713-TEH)

 
 Case3:12-cv-05713-TEH Document73 Filed12/19/12 Page1 of 2

1 MICHAEL T. RISHER (SB# 191627)

mrisher@aclunc.org

2 LINDA LYE (SB# 215584)

llye@aclunc.org

3 AMERICAN CIVIL LIBERTIES UNION

FOUNDATION OF NORTHERN CALIFORNIA, INC.

4 39 Drumm Street

San Francisco, CA 94111

5 Telephone: (415) 621-2493

Facsimile: (415) 255-8437

6

HANNI FAKHOURY (SB# 252629) 7 hanni@eff.org

8

LEE TIEN (SB# 148216) tien@eff.org

9 ELECTRONIC FRONTIER FOUNDATION 454 Shotwell Street

10 San Francisco, CA 94110

Telephone: (415) 436-9333 11 Facsimile: (415) 436-9993

12 Attorneys for Plaintiffs
13 JOHN DOE, et al. on behalf of themselves and others similarly
14 situated

15 UNITED STATES DISTRICT COURT
16 FOR THE NORTHERN DISTRICT OF CALIFORNIA
17

18

JOHN DOE, et al., on behalf of themselves and ) Civil Case No. 3:12-CV-05713-TEH

19 others similarly situated,

)

) [Proposed] Order granting

20

Plaintiffs,

) Administrative Motion to

) submit notice of grant of certiorari and

21

v.

) clarifying evidence

)

22 KAMALA D. HARRIS, et al.,

)

)

23

Defendants.

)

)

24

)

)

25

)

26

27

28
[Proposed] Order Granting Administrative Motion to submit notice of grant of certiorari and clarifying evidence Case No.: 3:12-cv-05713-TEH

Case3:12-cv-05713-TEH Document73 Filed12/19/12 Page2 of 2

1 The Court hereby grants Plaintiffs permission to advise the Court of two matters, subject to
2 any objections that any party may raise at the hearing on this matter:
3

4

1. The recent grant of certiorari in Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012), cited

5

in each of the briefs submitted on the question of intervention. Hollingsworth v. Perry,

6

--- S.Ct. ----, 2012 WL 3134429 (Dec. 7, 2012).

7

2. The actual language of the California State Sex Offender Management Board

8

³&$620%´ VXUYH\GLVFXVVHGLQ3ODLQWLIIV¶RSHQLQJDnd reply brief on the merits, a

9

copy of which Plaintiffs received from the state after they had already filed their reply

brief and have now submitted to this Court for consideration. 10

11

IT IS SO ORDERED.

12

DATED: ______1_2_/1_8_/_2_0_1_2_____

TATES DISTRICT C

UNITED S
ALIFORNIA

OURT NORTH

13

_________________________________

14

Judge Thelton E. Henderson

15

UniteJdudSgetaTtheelstonDEi.sHtreincdterJsoundge

16 17

ERN DISTRICT OF C

18

19

20

21

22

23

24

25

26

27

28

1
[Proposed] Order Granting Administrative Motion to submit notice

of grant of certiorari and clarifying evidence

Case No.: 3:12-cv-05713-TEH

 
 1

IN THE UNITED STATES DISTRICT COURT

2

FOR THE NORTHERN DISTRICT OF CALIFORNIA

3

4

5 JOHN DOE, et al.,

6

Plaintiffs,

7

v.

8 KAMALA HARRIS, et al.,

NO. C12-5713 TEH ORDER GRANTING MOTION TO INTERVENE

9

Defendants.

10

United States District Court For the Northern District of California

11

This case presents a challenge to the constitutionality of the reporting requirements for

12 registered sex offenders that were enacted as part of Proposition 35, the Californians Against

13 Sexual Exploitation Act (“CASE Act”). Daphne Phung and Chris Kelly (“Proponents”),

14 private citizens and proponents of Proposition 35, argue that they are entitled to intervene, or

15 if they are not so entitled, that the Court should permit them to intervene. Proponents’

16 motion came before the Court on December 17, 2012. For the reasons stated below, the

17 Court concludes that Proponents have not established that they have a right to intervene in

18 this action Under Federal Rule of Civil Procedure 24(a), but the Court will permit

19 intervention under Rule 24(b)(1)(B).

20

21 DISCUSSION

22 I. Intervention as of Right

23

Under Federal Rule of Civil Procedure Rule 24(a), an applicant has a right to

24 intervene in a pending action if four conditions are present: “(1) the intervention application

25 is timely; (2) the applicant has a significant protectable interest relating to the property or

26 transaction that is the subject of the action; (3) the disposition of the action may, as a

27 practical matter, impair or impede the applicant’s ability to protect its interest; and (4) the

28 existing parties may not adequately represent the applicant’s interest.” Citizens for Balanced

United States District Court For the Northern District of California

1 Use v. Montana Wilderness Ass’n, 647 F.3d 893, 897 (9th Cir. 2011) (internal quotation

2 marks and citation omitted). Although these “requirements are broadly interpreted in favor

3 of intervention,” the burden is on the applicant for intervention to establish the presence of

4 each of these four conditions. Id.

5

In the present case, the first three conditions are satisfied. Proponents’ application

6 was filed just five days after the suit was filed, and its timeliness is undisputed. In addition,

7 under Prete v. Bradbury, Proponents have a significant, protectable interest in defending the

8 initiative they helped pass, and an adverse court decision may impair that interest. 438 F.3d

9 949, 954 (9th Cir. 2006).

10

However, Proponents have not sufficiently shown that the Attorney General may not

11 adequately represent their interests. When “the government is acting on behalf of a

12 constituency it represents,” a presumption arises that “the government will adequately

13 represent that constituency.” Gonzalez v. Arizona, 485 F.3d 1041, 1052 (9th Cir. 2007)

14 (internal quotation marks and citation omitted). To overcome this presumption, the applicant

15 must make a “very compelling showing.” Arakaki v. Cayetano, 324 F.3d 1078, 1086 (9th

16 Cir. 2003). “Where parties share the same ultimate objective, differences in litigation

17 strategy do not normally justify intervention.” Id. Proponents and the Attorney General

18 unquestionably share the same ultimate objective: preventing the issuance of an injunction

19 that would stop the CASE Act from going into effect. To date, the largest difference

20 between the Proponents’ position and that of the Attorney General is that the Attorney

21 General did not oppose Plaintiffs’ motion to proceed anonymously, whereas Proponents

22 reserved the right to oppose the motion after the Court rules on Plaintiffs’ motion for a

23 preliminary injunction. Proponents also point to several arguments they made in their brief

24 opposing Plaintiffs’ preliminary injunction motion that the Attorney General did not make,

25 but in which she joined. In light of their shared objective, such minor differences in

26 litigation strategy do not demonstrate the compelling showing necessary to overcome the

27 presumption that the Attorney General will adequately represent Proponents’ interests.

28 Consequently, Proponents are not entitled to intervene as of right.

2

1 II. Permissive Intervention

2

When intervention as a matter of right is denied, courts consider whether permissive

3 intervention is appropriate under Rule 24(b)(1)(B). Spangler v. Pasadena City Bd. of Ed.,

4 552 F.2d 1326, 1329 (9th Cir. 1977). An applicant seeking permissive intervention must

5 establish: “(1) independent grounds for jurisdiction; (2) the motion is timely; and (3) the

6 applicant’s claim or defense, and the main action, have a question of law or a question of fact

7 in common.” Nw. Forest Res. Council v. Glickman, 82 F.3d 825 (9th Cir. 1996). The court

8 must also “consider whether the intervention will unduly delay or prejudice the adjudication

9 of the original parties’ rights.” Fed. R. Civ. P. 24(b)(3).

10

When the above criteria are met, a court has broad discretion to grant or deny

United States District Court For the Northern District of California

11 permissive intervention. Dep’t of Fair Emp’t & Hous. v. Lucent Techs., 642 F.3d 728, 740

12 (9th Cir. 2011). In exercising its discretion, a court generally examines:

13

the nature and extent of the intervenors’ interest, their

standing to raise relevant legal issues, the legal position

14

they seek to advance, and its probable relation to the

merits of the case[,] . . . whether the intervenors’

15

interests are adequately represented by other parties, . .

. and whether parties seeking intervention will

16

significantly contribute to full development of the

underlying factual issues in the suit and to the just and

17

equitable adjudication of the legal questions presented.

18 Spangler, 552 F.2d at 1329.

19

In this case, there is no dispute over the timeliness of Proponents’ motion, and

20 Proponents’ arguments in defense of the CASE Act address the questions of law and fact at

21 the heart of this action. Plaintiffs argue that Proponents have not shown an independent basis

22 for jurisdiction because they do not have standing under Article III, § 2 of the United States

23 Constitution.1 However, this is a federal question case in which the party on whose side

24 intervention is sought – the Attorney General – remains in the suit. The Ninth Circuit has

25 held that in such cases, the requirement of independent Article III standing does not apply to

26 proposed intervenors who, like Proponents, do not seek to raise additional claims. Freedom

27

28

1 However, at oral argument, Plaintiffs acknowledged that this Court had the discretion to grant Proponents’ motion. Rep. Tr. at 12:23-25.

3

1 from Religion Foundation, Inc. v. Geithner, 644 F.3d 836, 843 (9th Cir. 2011); cf. Diamond

2 v. Charles, 476 U.S. 54, 64 (1986) (observing that under the Supreme Court’s Rule 10.4, an

3 intervenor could “ride ‘piggyback’ on the State’s undoubted standing”). Proponents

4 therefore are not required to demonstrate that they have independent Article III standing in

5 order to be permitted to intervene in this action.

6

Even though Proponents have not made a compelling showing that the Attorney

7 General inadequately represents their interests, the Court anticipates that the presence of

8 Proponents in this suit will contribute to the just and equitable resolution of the issues before

9 it. Proponents seek only to ensure that their perspective on the matters at the heart of this

10 litigation are given due consideration; they do not request to bring any counterclaims or

United States District Court For the Northern District of California

11 cross-claims. As the California Supreme Court has observed, the participation of official

12 proponents in a suit challenging a ballot initiative may help ensure that the interests of the

13 voters who approved the initiative are fully represented and that “all viable legal arguments

14 in favor of the initiative’s validity are brought to the court’s attention.” Perry v. Brown, 52

15 Cal. 4th 1116, 1151 (2011). The Court finds that the potential for Proponents to make such

16 contributions outweighs the as yet abstract danger that delay or prejudice to the original

17 parties could result from Proponents’ formal participation as intervenors. The Court will

18 therefore grant permissive intervention.

19 III. Requested Limitations on Participation

20

Plaintiffs request that, should the Court grant intervention, it prohibit Proponents from

21 litigating issues to which the Attorney General has stipulated and undertaking independent

22 discovery.2 While courts have broad discretion to define the scope of intervention, “as a

23 general rule, intervenors are permitted to litigate fully once admitted to a suit.” League of

24 United Latin American Citizens v. Wilson, 131 F.3d 1297, 1304 (9th Cir. 1997); see also

25 Charles Alan Wright, et al., Fed. Practice and Procedure § 1920 (3d ed. 2012). The Court

26 anticipates that Proponents will coordinate their efforts with the Attorney General to avoid

27

2 Plaintiffs also request that Proponents not be given access to identifying information

28

about Plaintiffs Doe and Roe. Because Intervenors have not yet requested this information, the Court finds it unnecessary to rule on this proposed limitation at this time.

4

1 unduly burdening Plaintiffs, and it finds no compelling justification for imposing the 2 requested limitations on their participation at this time. 3

4 CONCLUSION

5

For the reasons given above, Proponents’ motion to intervene is hereby GRANTED.

6

7 IT IS SO ORDERED.

8

9 Dated: 1/10/2013 10

THELTON E. HENDERSON, JUDGE UNITED STATES DISTRICT COURT

11

United States District Court For the Northern District of California

12 13 14 15 16 17 18

19

20 21 22 23 24 25

26

27 28

5

 
 Case3:12-cv-05713-TEH Document78 Filed01/11/13 Page1 of 21

United States District Court For the Northern District of California

1

2

3

IN THE UNITED STATES DISTRICT COURT

4

FOR THE NORTHERN DISTRICT OF CALIFORNIA

5

6

7 JOHN DOE, et al.,

8

Plaintiffs,

9

v.

10 KAMALA D. HARRIS, et al.,

NO. C12-5713 TEH ORDER GRANTING PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION

11

Defendants.

12

13

This matter came before the Court on December 17, 2012, on Plaintiffs’ motion for a

14 preliminary injunction. Plaintiffs challenge several provisions of the Californians Against

15 Sexual Exploitation Act (“CASE Act” or “Act”) that require registered sex offenders to

16 provide certain information concerning their Internet use to law enforcement. Having

17 carefully considered the parties’ written and oral arguments, the Court now GRANTS

18 preliminary injunctive relief for the reasons explained below.

19

20 I. BACKGROUND

21

On November 6, 2012, California voters approved the CASE Act, which appeared on

22 the ballot as Proposition 35, with approximately 81% of the vote. Ex. D to Intervenors’ Req.

23 for Judicial Notice at 1.1 Plaintiffs John Doe, Jack Roe,2 and the non-profit organization

24 California Reform Sex Offender Laws filed this action on behalf of present and future

25

26

1The Court GRANTS Intervenors’ unopposed request for judicial notice in its entirety.

27

2The Court granted the two individual plaintiffs’ unopposed motion to proceed anonymously during the pendency of the preliminary injunction motion on November 15,

28 2012.

Case3:12-cv-05713-TEH Document78 Filed01/11/13 Page2 of 21

United States District Court For the Northern District of California

1 California sex offender registrants the following day, when the Act was to take effect.3 See

2 Cal. Const. art. II, § 10(a). They contend that California Penal Code sections 290.014(b) and

3 290.015(a)(4)-(6), as enacted by the CASE Act, violate Plaintiffs’ First Amendment rights to

4 free speech and free association. They further contend that the provisions are void for

5 vagueness under the Fourteenth Amendment.

6

California’s sex offender registration program is governed by California Penal Code

7 section 290 et seq. The CASE Act added the following items to the list of information

8 registrants must provide “upon release from incarceration, placement, commitment, or

9 release on probation”:

10

(4) A list of any and all Internet identifiers established or used

by the person.

11

12

(5) A list of any and all Internet service providers used by the person.

13

(6) A statement in writing, signed by the person, acknowledging

14

that the person is required to register and update the information in paragraphs (4) and (5), as required by this

15

chapter.

16 Cal. Penal Code § 290.015(a). In addition, items (4) and (5) must be reported as part of the

17 annual registration process. Id. § 290.012(a).

18

The Act defines “Internet service provider” as “a business, organization, or other

19 entity providing a computer and communications facility directly to consumers through

20 which a person may obtain access to the Internet,” except for any “business, organization, or

21 other entity that provides only telecommunications services, cable services, or video services,

22 or any system operated or services offered by a library or educational institution.” Id.

23 § 290.024(a). “Internet identifier” is defined as “an electronic mail address, user name,

24 screen name, or similar identifier used for the purpose of Internet forum discussions, Internet

25 chat room discussions, instant messaging, social networking, or similar Internet

26 communication.” Id. § 290.024(b).

27

3California has over 75,000 registrants, excluding those who are incarcerated and

28

those who have been deported. Cal. Dep’t of Justice, Cal. Sex Registrant Statistics (Jan. 10, 2013), http://www.meganslaw.ca.gov/statistics.aspx?lang=ENGLISH.

2

Case3:12-cv-05713-TEH Document78 Filed01/11/13 Page3 of 21

United States District Court For the Northern District of California

1

The CASE Act also added a provision that requires registrants to notify law

2 enforcement within 24 hours of any changes in the Internet information subject to

3 registration:

4

If any person who is required to register pursuant to the Act adds

or changes his or her account with an Internet service provider or

5

adds or changes an Internet identifier, the person shall send

written notice of the addition or change to the law enforcement

6

agency or agencies with which he or she is currently registered

within 24 hours. The law enforcement agency or agencies shall

7

make this information available to the Department of Justice.

8 Id. § 290.014(b). This section further requires all registrants to “immediately provide” the

9 required information to law enforcement upon the effective date of the Act. Id.

10

Following a telephonic hearing, the Court granted Plaintiffs’ motion for a temporary

11 restraining order (“TRO”) on November 7, 2012, and enjoined “Defendant Kamala Harris

12 and her officers, agents, servants, employees, and attorneys, and those persons in active

13 concert or participation with her . . . from implementing or enforcing California Penal Code

14 sections 290.014(b) and 290.015(a)(4)-(6), as enacted by Proposition 35, or from otherwise

15 requiring registrants to provide identifying information about their online speech to the

16 government.” Nov. 7, 2012 Order at 3. Pursuant to the parties’ agreement, the Court

17 explicitly applied this order “to all California state and local law enforcement officers and to

18 all members of the putative class, i.e., to all persons who are required to register under

19 California Penal Code section 290, including those whose duty to register arises after the date

20 of this order.” Id.

21

On November 14, 2012, the Court entered a stipulation and order deleting the

22 application of the TRO to “all California state and local law enforcement officers,” but

23 providing that “the California Department of Justice and local law enforcement will not

24 require registrants to submit the information covered by the TRO so long as the TRO remains

25 in effect.” Nov. 14, 2012 Stip. & Order ¶ 3. The parties further agreed that the TRO would

26 remain in effect “until the Court issues its ruling on Plaintiffs’ Motion for a Preliminary

27 Injunction or January 11, 2013, whichever occurs first,” id. ¶ 4, and that “any preliminary

28 injunctive relief granted by the Court will apply both to the named Plaintiffs and to all

3

Case3:12-cv-05713-TEH Document78 Filed01/11/13 Page4 of 21

United States District Court For the Northern District of California

1 persons who are required to register under California Penal Code § 290, including those 2 whose duty to register arises during the pendency of the TRO and any preliminary injunctive 3 relief,” id. ¶ 2. In addition, the parties agreed that this matter would be litigated as a facial

4 challenge unless and until Plaintiffs provide the Attorney General with at least 45 days notice

5 that they intend to raise an as-applied challenge. Id. ¶ 6.

6

Chris Kelly and Daphne Phung, the proponents of Proposition 35, moved to intervene

7 on November 12, 2012. Although the Court did not grant the motion to intervene until

8 January 10, 2013, Intervenors filed a written opposition and addressed the Court at oral

9 argument. Thus, they were fully heard on Plaintiffs’ motion for a preliminary injunction.

10

11 II. LEGAL STANDARD

12

To obtain a preliminary injunction, Plaintiffs must establish that: (1) they are likely to

13 succeed on the merits; (2) they are likely to suffer irreparable harm in the absence of the

14 preliminary injunction; (3) the balance of equities tips in their favor; and (4) the issuance of

15 the preliminary injunction is in the public interest. Winter v. Natural Res. Def. Council, Inc.,

16 555 U.S. 7, 20 (2008). A stronger showing on one of these four elements may offset a

17 weaker showing on another, but the movant must nonetheless “make a showing on all four

18 prongs.” Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1134-35 (9th Cir. 2011).

19

20 III. DISCUSSION

21

A. Likelihood of Success on the Merits

22

The Court first considers Plaintiffs’ likelihood of success on the merits. Because the

23 Court finds Plaintiffs likely to succeed on their First Amendment speech claim for the

24 reasons discussed below, it does not address whether Plaintiffs are likely to succeed on any

25 of their remaining claims.

26

1. First Amendment Legal Principles

27

This case concerns the First Amendment’s protection of the right to speak

28 anonymously online. See In re Anonymous Online Speakers, 661 F.3d 1168, 1173 (9th Cir.

4

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1 2011). It is undisputed that speech by sex offenders who have completed their terms of

2 probation or parole enjoys the full protection of the First Amendment. Rep. Tr. at 21:11-15

3 (Plaintiffs), 51:4-10 (government), 51:23-24 (Intervenors); see also Simon & Schuster, Inc.

4 v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105 (1991) (striking down New York

5 law that sought to interfere with criminals’ profiting from works describing their crimes).

6 The provisions at issue here are not outright bans on anonymous online speech, but they may

7 still violate the First Amendment if they impermissibly burden such speech: “[T]he

8 distinction between laws burdening and laws banning speech is but a matter of degree . . . .

9 Lawmakers may no more silence unwanted speech by burdening its utterance than by

10 censoring its content.” Sorrell v. IMS Health Inc., 131 S. Ct. 2653, 2664 (2011) (internal

11 quotation marks and citation omitted).4

12

Plaintiffs here challenge the CASE Act as facially overbroad. Although Plaintiffs

13 bear the burden of demonstrating a likelihood of success on the merits under the preliminary

14 injunction standard, the government ultimately “bears the burden of proving the

15 constitutionality of its actions” whenever it seeks to restrict speech. United States v. Playboy

16 Entm’t Grp., Inc., 529 U.S. 803, 816 (2000).

17

To succeed on a facial overbreadth challenge under the First Amendment, a plaintiff

18 must demonstrate either “that no set of circumstances exists under which [the statute] would

19 be valid,” or that “a substantial number of [the statute’s] applications are unconstitutional,

20 judged in relation to the statute’s plainly legitimate sweep.” United States v. Stevens, 130 S.

21 Ct. 1577, 1587 (2010) (internal quotation marks and citations omitted). The Court’s inquiry

22 is not limited to the application of the challenged provisions to the particular plaintiffs before

23 it, as “[l]itigants . . . are permitted to challenge a statute not because their own rights of free

24 expression are violated, but because of a judicial prediction or assumption that the statute’s

25 very existence may cause others not before the court to refrain from constitutionally

26

4That the challenged provisions were enacted by voter initiative does not alter the

27

constitutional analysis. “The voters may no more violate the United States Constitution by enacting a ballot issue than the general assembly may by enacting legislation.” Buckley v.

28

Am. Constitutional Law Found., Inc., 525 U.S. 182, 194 (1999) (internal quotation marks and citation omitted).

5

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1 protected speech or expression.” Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973). 2 However, “the mere fact that one can conceive of some impermissible applications of a 3 statute is not sufficient to render it susceptible to an overbreadth challenge.” Members of the

4 City Council of L.A. v. Taxpayers for Vincent, 466 U.S. 789, 800 (1984).

5

Plaintiffs urge the Court to subject the challenged provisions to strict scrutiny because

6 they discriminate against registrants as a class of speakers. However, strict scrutiny is only

7 required where “speaker-based laws . . . reflect the government’s preference for the

8 substance of what the favored speakers have to say (or aversion to what the disfavored

9 speakers have to say).” Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 658 (1994). Here,

10 the Act reflects no such preference and operates without regard to the message that any

11 registrant’s speech conveys. The challenged provisions are therefore content-neutral, and

12 intermediate scrutiny applies. Id. at 662; see also Doe v. Shurtleff, 628 F.3d 1217, 1223

13 (10th Cir. 2010) (applying intermediate scrutiny to Utah reporting requirement that said

14 “nothing about the ideas or opinions that [registrants] may or may not express, anonymously

15 or otherwise” and were not “aimed at suppressing the expression of unpopular views”

16 (internal quotation marks, alteration, and citation omitted)).

17

Under intermediate scrutiny, a law must “‘be narrowly tailored to serve the

18 government’s legitimate, content-neutral interests.’” Comite de Jornaleros de Redondo

19 Beach v. City of Redondo Beach, 657 F.3d 936, 947 (9th Cir. 2011) (en banc), cert. denied,

20 132 S. Ct. 1566 (2012) (quoting Ward v. Rock Against Racism, 491 U.S. 781, 798 (1989)).

21 “To satisfy this standard, the law need not be the least speech-restrictive means of advancing

22 the Government’s interests”; the test is whether “the means chosen . . . burden substantially

23 more speech than is necessary to further the government’s legitimate interests.” Turner, 512

24 U.S. at 662 (internal quotation marks and citation omitted). The “essence of narrow

25 tailoring” is to “focus[] on the source of the evils the [government] seeks to eliminate . . . and

26 eliminate[] them without at the same time banning or significantly restricting a substantial

27 quantity of speech that does not create the same evils.” Ward, 491 U.S. at 799 n.7.

28

6

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1

2. Construing the Statute

2

Before determining whether a challenged provision violates the First Amendment, a

3 court must first construe the provision; “it is impossible to determine whether a statute

4 reaches too far without first knowing what the statute covers.” United States v. Williams,

5 553 U.S. 285, 293 (2008). In doing so, the Court must consider the government’s “own

6 implementation and interpretation,” but it is “not required to insert missing terms into the

7 statute or adopt an interpretation precluded by the plain language of the ordinance.” Comite,

8 657 F.3d at 946 (internal quotation marks and citations omitted). Instead, the court may

9 impose a limiting construction only if a provision is, on its face, “readily susceptible” to such

10 a construction. Reno v. ACLU, 521 U.S. 844, 884 (1997) (internal quotation marks and

11 citation omitted). Applying these principles to this case, the Court finds that the reporting

12 requirements for “Internet service providers” and “Internet identifiers” are readily

13 susceptible to the narrowing constructions discussed at oral argument and advanced by the

14 government.5

15

a. “Internet service provider”

16

The CASE Act defines “Internet service provider” as a “business, organization, or

17 other entity providing a computer and communications facility directly to consumers through

18 which a person may obtain access to the Internet,” excluding any “business, organization, or

19 other entity that provides only telecommunications services, cable services, or video services,

20 or any system operated or services offered by a library or educational institution.” Cal. Penal

21 Code § 290.024(a). Pursuant to § 290.015(a)(5), a person subject to the reporting

22

5The government and Intervenors also suggest that, in construing the reporting

23

requirements, the Court may look to the federal standards for state sex offender registry and notification systems developed under the Sex Offender Registration and Notification Act

24

(“SORNA”). See 42 U.S.C. § 16915a(a) (providing for collection of “those Internet identifiers the sex offender uses or will use of any type that the Attorney General determines

25

to be appropriate”); Nat’l Guidelines for Sex Offender Registration and Notification, 73 Fed. Reg. 38,030-01 at 38,055 (July 2, 2008) (U.S. Attorney General guidelines for state

26

registries to include “all designations used by sex offenders for purposes of routing or self-identification in Internet communications or postings”). The Court does not find it

27

necessary to rely on SORNA for this purpose because, as discussed below, it finds the construction of the statutes proposed by the government and Intervenors to be supported by

28

the statutes’ plain language. Neither the government nor Intervenors argue that SORNA affects the Court’s analysis on any other issue.

7

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1 requirements must, upon registration, provide to law enforcement “[a] list of any and all

2 Internet service providers used by the person.” At oral argument, the government stated that

3 the plain language of the Act limits this requirement to only “Internet service providers with

4 which the registrant has an open account at the time of the registration.” Rep. Tr. at 48:2-15;

5 cf. id. at 49:2-5 (noting Intervenors’ agreement). Plaintiffs acknowledged that it would be

6 permissible for the Court to construe the statute in this manner, id. at 17:15-18:1, and the

7 Court now does so. Reading section 290.015(a)(5) to exclude providers that are only

8 accessed or used by the registrant, as opposed to those with which the registrant has an

9 account, is consistent with both the common understanding of “Internet service provider” and

10 California Penal Code section 290.014(b), which requires a registrant to update law

11 enforcement only when he or she “adds or changes his or her account with an Internet

12 service provider” (emphasis added).

13

b. “Internet identifier”

14

The CASE Act’s definition of “Internet identifier” – “an electronic mail address, user

15 name, screen name, or similar identifier used for the purpose of Internet forum discussions,

16 Internet chat room discussions, instant messaging, social networking, or similar Internet

17 communication” – is also readily susceptible to a construction that avoids many of the

18 potential problems suggested by Plaintiffs. Id. § 290.024(b).6 The Act may be reasonably

19 interpreted to require reporting only of Internet identifiers actually used to post a comment,

20 send an email, enter into an Internet chat, or engage in another type of interactive

21 communication on a website, and not identifiers a registrant uses solely to purchase products

22 or read content online. See Rep. Tr. at 63:8-16 (Intervenors suggesting this rule); id. at

23 64:22-24 (government focusing on “interactive communications” as the test for whether an

24 Internet identifier must be reported); id. at 37:5-8 (Plaintiffs saying that it would be

25

26

27

6Plaintiffs expressed fear that law enforcement may subsequently decide to require registrants to report the websites associated with their Internet identifiers. However, as

28

Plaintiffs acknowledge, the Act’s language requires the reporting only of Internet identifiers and not associated websites. Mot. at 22-23.

8

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1 reasonable to interpret the Act to “count[] once you actually use that account to post

2 something”).7

3

This interpretation raises the question of when a registrant must report an Internet

4 identifier that could potentially be used for interactive communication but that the registrant

5 initially uses only to view content or make a purchase online. At oral argument, the

6 government assured the Court that it would not require a registrant to report such an

7 identifier upon creating it, but that a registrant would have to report the identifier within 24

8 hours of first using the identifier to engage in interactive communication. Rep. Tr. at 65:21-

9 66:11. The Court finds this construction to be reasonable.

10

Consistent with the above discussion, the Court construes the challenged provisions

11 as requiring registrants to report: (1) “Internet service providers” with which the registrant

12 has a current account at the time of registration or with which the registrant later creates an

13 account, and (2) “Internet identifiers” that are actually used by the registrant to engage in

14 interactive communication with others, within 24 hours of the registrant’s first use of the

15 identifier for interactive communication.

16

3. Narrow Tailoring

17

The Court now turns to whether Plaintiffs are likely to succeed in showing that the

18 challenged provisions, as just construed, fail to satisfy the First Amendment under

19 intermediate scrutiny. This requires the Court to determine whether the provisions are

20 “narrowly tailored to serve the government’s legitimate, content-neutral interests.” Comite,

21 657 F.3d at 947 (internal quotation marks and citation omitted).

22

The CASE Act’s stated purposes include “combat[ing] the crime of human

23 trafficking” and “strengthen[ing] laws regarding sexual exploitation, including sex offender

24 registration requirements, to allow law enforcement to track and prevent online sex offenses

25

26

7The government suggested that blog usernames need not be reported as long as the blog did not permit interactive comments. Rep. Tr. at 63:17-19. The Court declines to

27

interpret the statute in this fashion since the government has not explained why a registrant’s use of his or her own non-interactive blog to comment should be distinguished from his or

28

her posting the same comment on a different website. However, this deviation from the government’s proposed construction is not material to the Court’s First Amendment analysis.

9

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1 and human trafficking.” CASE Act § 3(1), (3). The Act’s text also expresses an interest in

2 “deter[ring] predators from using the Internet to facilitate human trafficking and sexual

3 exploitation.” Id. § 2(6). Plaintiffs do not dispute that these are legitimate government

4 interests. Cf., e.g., Doe v. Jindal, 853 F. Supp. 2d 596, 805 (M.D. La. 2012) (“There can be

5 no doubt that the state has a wholly legitimate interest in protecting children from sex

6 offenders online.”).

7

It is not difficult to imagine situations in which having registrants’ Internet identifiers

8 would advance these interests. For instance, if a registered sex offender used a social

9 networking site to recruit victims for human trafficking, being able to match the Internet

10 identifier used to do the recruiting against a database of registered Internet identifiers could

11 help to identify the perpetrator.8 Cf. Bock Decl. ¶ 10 (describing trafficking case of twin

12 girls recruited through a social networking site). Likewise, a database of Internet identifiers

13 could be used to identify the perpetrator of a sex offense – assuming that the person were a

14 registrant9 – who used an anonymous Internet account to make contact with his or her

15 victim. Cf. id. ¶ 11 (describing case of a person who raped four women he contacted via

16 Craigslist, including a teenage victim “whose pimp had been trafficking her ”). Although the

17 government has not presented any real-life examples involving the use of Internet

18 information in a sex offender registry to prevent or solve a crime,10 the Court finds that the

19 challenged provisions could conceivably advance the legitimate purposes of the Act. It now

20 turns to the question of whether they are narrowly tailored to achieving those purposes.

21

22

23

8This assumes that the re-offending registrant complied with the Internet reporting requirements enacted by the CASE Act.

24

9Plaintiffs’ unchallenged statistics suggest that “most online predators” –

25

approximately 96% – “are not registered offenders and have no prior record.” Finkelhor Decl. ¶ 18.

26

10The government argues that it cannot provide such examples from California

27

because the challenged provisions have not yet gone into effect. However, neither the government nor Intervenors responded to Plaintiffs’ observation that data from other

28

jurisdictions where Internet registration requirements are in effect could shed light on the potential impact of such requirements in California.

10

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1

Defendants and Intervenors assert that Shurtleff, 628 F.3d 1217, in which the Tenth

2 Circuit upheld a reporting requirement in Utah, is persuasive authority that the CASE Act

3 should survive scrutiny under the First Amendment. In Shurtleff, the challenged statute

4 required a registrant “to provide all ‘Internet identifiers and the addresses [he] uses for

5 routing or self-identification in Internet communications or postings.’” Id. at 1221 (footnote

6 omitted) (alteration in original) (quoting Utah Code Ann. § 77-27-21.5(14)(i) (West 2008)).

7 An Internet identifier was defined as “‘any electronic mail, chat, instant messenger, social

8 networking, or similar name used for Internet communication.’” Id. at 1221 n.1 (quoting

9 Utah Code Ann. § 77–27–21.5(1)(j)). The district court found that the original statutory

10 scheme violated the First Amendment because it “contained no restrictions on how the

11 [state] could use or disseminate registrants’ Internet information, implicating protected

12 speech and criminal activity alike.” Doe v. Shurtleff, Case No. 1:08-CV-64-TC, 2009 WL

13 2601458, at *1 (D. Utah Aug. 20, 2009).

14

The Utah legislature subsequently amended the statute to limit state officials’ use of

15 the information to “investigating kidnapping and sex-related crimes, and . . apprehending

16 offenders. . . .” Shurtleff, 628 F.3d at 1221 (internal quotation marks omitted) (quoting Utah

17 Code Ann. § 77-27-21.5(2) (West Supp. 2010)). The legislature simultaneously amended

18 the state’s public records act “to designate certain information provided by an offender,

19 including internet identifiers, as private.”11 Id. (citing Utah Code Ann. § 63G-2-302(1)(m)).

20 This meant that the information could “only be disclosed in limited circumstances such as

21 when requested by the subject of the record, or pursuant to a court order or legislative

22 subpoena,” and could be shared “between different government entities and their agents”

23 only if the entity receiving the record placed “the same restrictions on disclosure of the

24 record as the originating entity.” Id. at 1221 n.4 (internal quotation marks omitted) (citing

25 Utah Code Ann. §§ 63G-2-201(5), 63G-2-202, and quoting Utah Code Ann. § 63G-2-206).

26 The Tenth Circuit “read this language, as did the district court, as only allowing state actors

27

28

11The legislature also amended the statute to remove “any requirement that offenders disclose their passwords.” Shurtleff, 628 F.3d at 1221.

11

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1 to look beyond the anonymity surrounding a username in the course of an investigation after 2 a new crime has been committed,” and further interpreted the statute “as permitting sharing 3 only among law-enforcement agencies, not the public at large.” Id. at 1225. The court

4 consequently found no First Amendment problem: “Although this narrow interpretation

5 may still result in the disclosure of Mr. Doe’s online identifiers to state officials,” the court

6 reasoned, “such identification will not unnecessarily interfere with his First Amendment

7 freedom to speak anonymously.” Id.

8

In California, sex offender registration statements are not subject to “inspection by the

9 public or by any person other than a regularly employed peace officer or other law

10 enforcement officer,” Cal. Penal Code § 290.021, but a law enforcement entity may disclose

11 registrants’ information to the public “by whatever means the entity deems appropriate,

12 when necessary to ensure the public safety based upon information available to the entity

13 concerning that specific person,” id. § 290.45(a)(1). With any such disclosure, the entity

14 must include “a statement that the purpose of the release of information is to allow members

15 of the public to protect themselves and their children from sex offenders.” Id.

16 § 290.45(a)(2). These California statutes do not contain the safeguards present in the

17 amended Utah statutes and are closer to the pre-amendment Utah statutes initially found

18 unconstitutional by the district court in Doe v. Shurtleff, Case No. 1:08-CV-64-TC, 2008 WL

19 4427594 (D. Utah Sept. 25, 2008).

20

They are also similar to a Georgia statute – struck down by the district court in White

21 v. Baker, 696 F. Supp. 2d 1289 (N.D. Ga. 2010) – that permitted disclosure of registrants’

22 Internet information “to law enforcement agencies for law enforcement purposes” and to the

23 public as “necessary to protect the public” without any other limitations. Id. at 1309

24 (quoting O.C.G.A. § 41-1-12(o)). This Court agrees with the White court, which found the

25 lack of statutory protections on disclosure to be troubling:

26

It is conceivable, if not predictable, that a person in law

enforcement might determine that Internet Identifiers for

27

offenders ought to be released so that the public can search for

and monitor communications which an offender intends to be

28

12

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1

anonymous. That these anonymous communications might well

be on a matter of public policy, political speech, or other

2

protected speech squarely implicates the First Amendment. . . .

The prospect that Internet Identifiers, as currently defined, may

3

be released to the community has an obvious chilling effect.

4 Id. at 1310-11.12

5

While the government asserted at oral argument that there has to be “some kind of

6 nexus” between the use of an Internet identifier and criminal activity before law enforcement

7 can access information related to a registrant’s Internet identifier, Rep. Tr. at 54:23-55:15,

8 the Court “cannot simply presume the [government] will act in good faith and adhere to

9 standards absent from the [statute’s] face.” Comite, 657 F.3d at 946-47 (internal quotation

10 marks, alteration, and citation omitted). Here, Plaintiffs have no guarantee that their

11 pseudonyms will be safeguarded from public dissemination because neither the CASE Act

12 nor any other California statute requires the nexus asserted by the government at the hearing.

13 Their right to speak anonymously will therefore be chilled.

14

This chilling effect is heightened because, unlike in the Utah or Georgia cases, the

15 disclosure of a registrant’s identity – at least to law enforcement, and potentially to the

16 public as well – will occur either before he or she speaks or, at maximum, within 24 hours

17 after speaking and potentially while the speech is ongoing. Cf. Shurtleff, 628 F.3d at 1225

18 (finding that disclosure “would generally occur, if at all, at some time period following

19 Mr. Doe’s speech and not at the moment he wished to be heard”); White, 696 F. Supp. 2d at

20 1294 (noting that the Georgia statute required registrants to provide updated information

21 within 72 hours). A contemporaneous disclosure requirement poses a greater burden on

22 speech than an after-the-fact disclosure requirement because it “connects the speaker to a

23 particular message directly.” ACLU v. Heller, 378 F.3d 979, 991-92 (9th Cir. 2004). When

24 a California registrant wants to speak online, he or she must use either a previously reported

25 Internet identifier – in which case the disclosure to law enforcement would have occurred

26

12The Georgia statute defined “Internet Identifier” as “E-mail addresses, usernames,

27

and user passwords,” and further defined “username” as “a string of characters chosen to uniquely identify an individual who uses a computer or other device with Internet capability

28

to gain access to e-mail messages and interactive online forums.” White, 696 F. Supp. 2d at 1295 (quoting O.C.G.A. § 42-1-12(a)(16)(K) & (a)(21.1)).

13

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1 prior to the speech – or a new identifier that must be reported within 24 hours, regardless of 2 whether any conversation using the identifier has concluded. Because it results in a risk of 3 more contemporaneous disclosure, this reporting requirement is even more problematic than

4 the 72-hour reporting requirement found to be unconstitutional in White. It likewise creates

5 a far greater chilling effect on anonymous speech than the statute upheld in Shurtleff,

6 especially when combined with the lack of statutory protections on the information’s

7 disclosure to other law enforcement agencies and the public.

8

Registrants’ speech may also be chilled because failure to comply with sex offender

9 registration requirements, including the Internet provisions, is punishable by up to three

10 years in state prison. Cal. Penal Code § 290.018(a)-(c). This potential punishment may

11 deter registrants from speaking at all if they are uncertain about whether they have to report a

12 particular Internet identifier to law enforcement and, if so, whether they will be able to file

13 any such report within the required 24-hour period. See NAACP v. Button, 371 U.S. 415,

14 433 (1963) (“The threat of sanctions may deter the[] exercise [of First Amendment rights]

15 almost as potently as the actual application of sanctions.”). The uncertainty surrounding

16 what registrants must report – and the resultant potential chilling effect – is greater in this

17 case because the Court’s interpretation of the Act is not definitive guidance to registrants

18 about what they must report. While the Court construed the Act’s provisions for purposes of

19 determining whether they violate the First Amendment, this Court’s interpretation is not

20 binding on state courts, where the registrants would face prosecution for failure to register.

21 See Cal. Teachers Ass’n v. State Bd. of Educ., 271 F.3d 1141, 1146 (9th Cir. 2001) (“[I]t is

22 solely within the province of the state courts to authoritatively construe state legislation.”).

23

The CASE Act provisions’ chilling effect might be justifiable if the provisions were

24 narrowly tailored, but – at least at this stage of the proceedings – the government has not

25 persuaded the Court that they are. For the reasons discussed below, the Court finds that the

26 provisions apply both to more speakers and more speech than is necessary to advance the

27 government’s legitimate purposes.

28

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1

First, the Court is not persuaded that burdening the anonymous speech rights of all

2 75,000 registered sex offenders is narrowly tailored to the government’s interest in fighting

3 online sex offenses. The government already classifies registrants using a risk-assessment

4 tool known as Static-99. Using this instrument, the State has classified the majority of

5 registrants released on parole after 2005 as posing a “low” or “moderate-low” risk of

6 re-offending. Abbott Decl. ¶ 9. The government has not sufficiently explained why these

7 individuals ought to be treated differently from non-registrants who are not required to report

8 Internet-identifying information to authorities. This fact is not altered by Intervenors’

9 reliance on Plaintiffs’ data that “[p]edophiles who molest boys and rapists of adult women

10 have recidivism rates of 52% and 39% respectively,” or that the overall average recidivism

11 rate for registrants in all risk categories is between 14% and 20%. Id. ¶ 15. The issue is not

12 whether registrants recidivate, which Plaintiffs do not dispute. Instead, the problem is that

13 the government has not explained why the collection of Internet-identifying information

14 from registrants who present a low or moderately low risk of re-offending, and a potentially

15 even lower risk of re-offending online,13 is narrowly tailored to the Act’s purposes. Based

16 on the State’s own existing risk assessments, the uniform application of the CASE Act

17 appears overbroad.14

18

At oral argument, the government asserted that Static-99 cannot be used to limit the

19 number of registrants who must report Internet-identifying information because the CASE

20 Act’s “Internet identifier registration requirements serve[] a different purpose” than

21 Static-99’s purpose of “estimat[ing] the risk that a person might pose when they are released

22

23

13No party or intervenor presented any evidence concerning the rate by which registered sex offenders re-offend using the Internet. The only statistical evidence presented

24

on the prevalence of Internet use in the commission of sex offenses was from a national study of 2006 arrests, which indicated that only approximately 1% of sex offenses against children

25 involved the Internet or other technology. Finkelhor Decl. ¶ 12.

26

14Even if the Act were applied only to the registrants deemed to pose a higher risk by the State’s Static-99 tool, this, too, could still be insufficiently tailored because it considers

27

only the risk of re-offending, not the risk of committing a sex offense online – which is the CASE Act’s stated focus. However, the challenged provisions currently apply to all

28

registrants, regardless of risk, and the Court therefore need not and does not decide this question.

15

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1 to the community.” Rep. Tr. at 76:19-77:1. The purpose of the CASE Act’s new 2 registration requirements is, according to the government, “to be able to find somebody if we 3 need to.” Id. at 77:1-2. However, the government has not explained how being able to find

4 all registered sex offenders using Internet identifiers – regardless of the registrants’ risk of

5 re-offending as determined by the government’s own assessment tool – is narrowly tailored

6 to achieving the Act’s legitimate interest in combating online sex offenses or human

7 trafficking.

8

In addition, even as to registrants who may legitimately be required to register

9 Internet-identifying provisions based on their risk of recidivism, the challenged provisions

10 appear to extend to too much speech. When asked at oral argument what kinds of

11 communications it would be “most helpful for law enforcement to be able to monitor,” the

12 government referred to White v. Baker, stating that the court there said that “Internet chatting

13 and social networks and chat rooms . . . were the most helpful, that mostly involved the

14 exploitation of children.” Rep. Tr. at 75:1-8. Indeed, the White court found that online

15 solicitation for sexual exploitation “generally do[es] not occur in communications that are

16 posted publicly on sites dedicated to discussion of public, political, and social issues.” 696

17 F. Supp. 2d at 1310. The government has not shown the utility of requiring registration of

18 Internet identifiers used for this type of public commentary.

19

Nonetheless, the CASE Act provisions extend to all such websites, and registrants are

20 likely to be chilled from engaging in legitimate public, political, and civic communications

21 for fear of losing their anonymity. As a Nebraska district court forcefully stated, a

22 requirement that sex offenders report to the government all communications on blogs and

23 websites “puts a stake through the heart of the First Amendment’s protection of anonymity

24 [and] surely deters faint-hearted offenders from expressing themselves on matters of public

25 concern.” Doe v. Nebraska, Case No. 8:09CV456, 2012 WL 4923131, at *28 (D. Neb.

26 Oct. 17, 2012); see also White, 696 F. Supp. 2d at 1310 (concluding that a requirement was

27 overbroad because it included communications that did not “reasonably present a vehicle by

28 which a sex offender can entice a child to have illicit sex”). This Court agrees. Applying the

16

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United States District Court For the Northern District of California

1 registration requirements to all Internet forums, even those types that have not been shown to

2 pose any reasonable risk of leading to an online sex offense or human trafficking, creates a

3 significant chilling effect on Plaintiffs’ protected speech.15

4

In short, at this preliminary stage of the proceedings, the government, with the

5 Intervenors’ support, has failed to show that the CASE Act’s reporting requirements are

6 narrowly tailored to serve its legitimate interests. The challenged provisions have some

7 nexus with the government’s legitimate purpose of combating online sex offenses and

8 human trafficking, but “[t]he Government may not regulate expression in such a manner that

9 a substantial portion of the burden on speech does not serve to advance its goals.” Ward,

10 491 U.S. at 799. On the current record, the Court concludes that Plaintiffs are likely to

11 establish that the challenged provisions, when combined with the lack of protections on the

12 information’s disclosure and the serious penalty registrants face if they fail to comply with

13 the reporting requirements, create too great a chilling effect to pass constitutional muster.

14 While the government may be able to demonstrate narrow tailoring in subsequent

15 proceedings, it has not done so here. Accordingly, the Court concludes that Plaintiffs are

16 likely to succeed on their First Amendment free speech claim.

17

18

B. Remaining Preliminary Injunction Factors

19

To warrant injunctive relief, Plaintiffs must also show that they are likely to suffer

20 irreparable harm in the absence of an injunction and demonstrate that the public interest and

21 balance of equities weigh in their favor. As discussed below, the Court finds that Plaintiffs

22 have sufficiently established all of these factors.

23

First, neither the government nor Intervenors dispute that Plaintiffs are likely to suffer

24 irreparable harm in the absence of an injunction. Indeed, the Supreme Court long ago

25

26

15The Court recognizes that, like the challenged provisions here, the Utah statutes

27

upheld by the Tenth Circuit in Shurtleff applied broadly to all Internet forums and all registered sex offenders. However, as discussed above, the chilling effect of the Utah statute

28

was diminished, if not eliminated, by the statutory restrictions on disclosure and the lack of a relatively contemporaneous reporting requirement.

17

Case3:12-cv-05713-TEH Document78 Filed01/11/13 Page18 of 21

United States District Court For the Northern District of California

1 explained that “[t]he loss of First Amendment freedoms, for even minimal periods of time,

2 unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976).

3

Second, the Ninth Circuit has “consistently recognized the ‘significant public

4 interest’ in upholding free speech principles,” Klein v. City of San Clemente, 584 F.3d 1196,

5 1208 (9th Cir. 2009), and has further observed that “it is always in the public interest to

6 prevent the violation of a party’s constitutional rights,” Melendres v. Arpaio, 695 F.3d 990,

7 1002 (9th Cir. 2012) (internal quotation marks and citation omitted).

8

Third, based on the present record, the government has not demonstrated that the

9 CASE Act’s impact on public safety is sufficient to overcome the interest – both to Plaintiffs

10 and to the public – in avoiding infringement of Plaintiffs’ First Amendment rights. As the

11 Supreme Court has explained, “[t]he prospect of crime . . . by itself does not justify laws

12 suppressing protected speech,” nor may the government “prohibit speech because it increases 13 the chance an unlawful act will be committed at some indefinite future time.” Ashcroft v. 14 Free Speech Coal., 535 U.S. 234, 245, 253 (2002) (internal quotation marks and citation 15 omitted). In this case, the government has not provided any evidence regarding the extent to 16 which the public safety might be enhanced if the additional registration requirements went 17 into effect. Plaintiffs’ evidence – as yet undisputed – indicates that only 1% of arrests for sex 18 crimes against children are for crimes facilitated by technology, Finkelhor Decl. ¶ 12, and

19 that registered sex offenders are involved in only 4% of these arrests, id. ¶ 18. While the

20 Court does not minimize the significance of any single crime, the record at this stage of the 21 proceedings suggests that the potential usefulness of the Internet registration information is 22 limited to a very small portion of the universe of sex offenses and online sex offenses. 23 Moreover, enjoining the Internet registration requirements enacted by the CASE Act would 24 not prevent the government from investigating online sex offenses, as it could still employ 25 other mechanisms to do so. See, e.g., Doe v. Shurtleff, 2008 WL 4427594, at *9 (noting that,

26 even in the absence of an Internet registration requirement, “investigators of internet crime

27 already have tools to unmask anonymous internet suspects, such as investigative 28 subpoenas”). Against the government’s weak showing of the utility of registrants’ Internet

18

Case3:12-cv-05713-TEH Document78 Filed01/11/13 Page19 of 21

United States District Court For the Northern District of California

1 information if the Act is not enjoined, the Court must weigh the likely and substantial

2 chilling of Plaintiffs’ First Amendment rights discussed above. Having done so, the Court

3 concludes that both the balance of equities and the public interest weigh in favor of granting

4 injunctive relief.

5

6

C. Application of Injunction to Local Law Enforcement

7

Finally, the Court must address whether any injunctive relief binds local law

8 enforcement officials in California or only the Attorney General. The parties agreed that

9 local law enforcement officials would not enforce the challenged provisions during the

10 pendency of the temporary restraining order, but the government now argues that an

11 injunction against the Attorney General cannot bind local law enforcement agencies or

12 personnel. For support, the government cites a single California appellate case from seventy

13 years ago for the proposition that “the California Constitution does not contemplate absolute

14 control and direction of sheriffs” by the Attorney General. Gov’t Opp’n at 9 (citing People

15 v. Brophy, 49 Cal. App. 2d 15, 28 (1942)).

16

The government’s argument is beside the point. Federal Rule of Civil Procedure

17 65(d)(2) provides that an injunction will bind the parties, as well as “the parties’ officers,

18 agents, servants, employees, and attorneys,” and “[o]ther persons who are in active concert or

19 participation with” these individuals. Even if the Attorney General does not have absolute

20 control and direction over local law enforcement, it cannot be disputed that, as to the

21 collection of sex offender registration data, local law enforcement at least acts “in active

22 concert or participation with” the Attorney General, if not as her agent. See, e.g., Cal. Penal

23 Code § 290.015(b) (requiring local law enforcement agencies to forward registrants’

24 information to the Department of Justice16 within three days of registration); Schweig Decl.

25 ¶ 3 (describing the collection of sex offender registration data as a “collaborative effort”

26

27

28

16“The Attorney General is head of the Department of Justice.” Cal. Gov’t Code § 12510.

19

Case3:12-cv-05713-TEH Document78 Filed01/11/13 Page20 of 21

United States District Court For the Northern District of California

1 involving, among others, the California Department of Justice and local law enforcement

2 agencies).

3

However, Federal Rule of Civil Procedure 65(d)(2) also provides that an injunction

4 only binds persons “who receive actual notice of it by personal service or otherwise.” To

5 ensure that all local law enforcement officials who are responsible for collecting registered

6 sex offenders’ information are bound by this order, the Court will order the Attorney General

7 to provide actual notice to all such officials. This requirement does not preclude the parties

8 from further meeting and conferring to attempt to reach agreement that local law

9 enforcement will not enforce the enjoined provisions as long as the Court’s order granting

10 preliminary injunctive relief remains in effect.

11

12 IV. CONCLUSION

13

The Court does not lightly take the step of enjoining a state statute, even on a

14 preliminary basis. However, just as the Court is mindful that a strong majority of California

15 voters approved Proposition 35 and that the government has a legitimate interest in

16 protecting individuals from online sex offenses and human trafficking, it is equally mindful

17 that “[a]nonymity is a shield from the tyranny of the majority,” and that Plaintiffs enjoy no

18 lesser right to anonymous speech simply because they are “unpopular.” McIntyre v. Ohio

19 Elections Comm'n, 514 U.S. 334, 357 (1995). The record before the Court does not establish

20 that the Internet registration requirements enacted by the CASE Act are narrowly tailored to

21 the Act’s legitimate purpose of combating online sex offenses and human trafficking. While

22 the government may be able to make the necessary showing at a later stage of these

23 proceedings, it has not yet done so, and the Court therefore concludes that Plaintiffs have

24 demonstrated a likelihood of success on the merits of their First Amendment free speech

25 claim.

26 //

27 //

28 //

20

Case3:12-cv-05713-TEH Document78 Filed01/11/13 Page21 of 21

United States District Court For the Northern District of California

1

Accordingly, with good cause appearing for the reasons stated in this order, Plaintiffs’

2 motion for a preliminary injunction is GRANTED. IT IS HEREBY ORDERED that:

3

1. Defendant Kamala Harris and her officers, agents, servants, employees, and

4 attorneys, and those persons in active concert or participation with her, are enjoined from

5 implementing or enforcing California Penal Code sections 290.014(b) and 290.015(a)(4)-(6),

6 as enacted by the CASE Act.17

7

2. Defendant Harris shall provide, by personal service or otherwise, actual notice of

8 this order to all law enforcement personnel who are responsible for implementing or

9 enforcing the enjoined statutes or from otherwise collecting registered sex offenders’

10 information. The government shall file a declaration establishing proof of such notice on or

11 before January 28, 2013. Alternatively, the parties may file on or before that date a

12 stipulation and proposed order that local law enforcement will not enforce the enjoined

13 provisions even in the absence of receiving actual notice.

14

15 IT IS SO ORDERED.

16

17 Dated: 01/11/13 18

THELTON E. HENDERSON, JUDGE UNITED STATES DISTRICT COURT

19

20

21

22

23

24

25

26

17A careful reader may observe that the Court has omitted the phrase, “or from otherwise requiring registrants to provide identifying information about their online speech to

27

the government,” from the temporary restraining order. Nov. 7, 2012 Order at 3. This should not be interpreted as the Court’s permission to attempt an end run around the

28

preliminary injunction entered today. The Court removed this language out of an abundance of caution that the scope of its injunction not reach too broadly.

21

 
 Case 3:12-cv-05713-TEH Document 116 Filed 09/14/15 Page 1 of 6

1 JAMES C. HARRISON, StateBarNo. l61958 KAREN GETMAN, State BarNo. 136285
2 MARGARET R. PRINZING, stateBarNo.209482 REMCHO, JOHANSEN & PURCELL, LLP
3 201 Dolores Avenue San Leandro, CA 94577
4 Phone: (510) 346-6200 Fax: (510) 346-6201
5 Email: mprinzing@rjp.com

6 Attorneys for Interveners Daphne Phung and Chris Kelly
7

8

UNITED STATES DISTRICT COURT

9

NORTHERN DISTRICT OF CALIFORNIA

10

SAN FRANCISCO DIVISION

11 JOHN DOE, et al.,

No.: C 12-5713 TEH

12

Plaintiffs,

STATUS REPORT

13 vs.

14 KAMALA D. HARRIS, et al.,

15

Defendants.

16

17

18

19

20

21

22

23

24

25

26

27

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STATUS REPORT- NO. C 12-5713 TEH

Case 3:12-cv-05713-TEH Document 116 Filed 09/14/15 Page 2 of 6

1 1.
2

Introduction On April 7, 2015, this Court issued an order staying this case to give Interveners an

3 opportunity to pursue a legislative resolution of this matter. That stay expires automatically on

4 September 15,2015 unless Interveners file a status report by September 14,2015 indicating that the

5 Legislature has approved legislation potentially resolving this matter, at which point the stay would

6 continue until October 12, 2015 to give the Governor time to act upon the bill.

7

Interveners submit this status report to inform the Court that Senator Ben Hueso

8 introduced legislation- SB 448- to address the constitutional concerns raised by Proposition 35. On

9 September 1, 2015, the California Senate overwhelmingly approved SB 448 with a 39-0 vote, but the

10 Assembly was unable to vote on SB 448 before the end of the legislative session on September 11,

11 2015. Interveners have good cause to believe that the Legislature will approve SB 448 shortly after the

12 Legislature reconvenes on January 4, 2016, and that the resulting legislation will fully resolve the

13 constitutional claims raised by Plaintiffs in this lawsuit.

14

These developments render any further litigation in this Court at this time unnecessary.

15 Interveners will therefore allow the stay to lapse according to its own terms, and then meet and confer

16 with Plaintiffs to discuss how to proceed. The parties will then jointly report to the Court at the

17 October 26, 2015 case management conference.

18 2. 19

Facts and ProceduralBackgr·ound On November 6, 2012, 81% of California voters approved Proposition 35 to combat

20 human trafficking and strengthen laws regarding sexual exploitation, including sex offender

21 registration requirements, to allow law enforcement to track and prevent online sex offenses and
22 human trafficking. Plaintiffs filed this lawsuit the next day challenging the provisions of

23 Proposition 35 that would require registered sex offenders to register their Internet identifiers and

24 Internet Service Providers along with the other information they are already required to register. This

25 Court granted Plaintiffs a temporary restraining order on November 7, 2012.

26

The proponents of Proposition 35, Chris Kelly and Daphne Phung, moved to intervene

27 on November 12, 2012. This Court granted the motion on January 10, 2013.

28

STATUS REPORT- NO. C 12-5713 TEH

1

Case 3:12-cv-05713-TEH Document 116 Filed 09/14/15 Page 3 of 6

1

On January 11, 2013, this Court issued a preliminary injunction prohibiting the State

2 from enforcing the challenged portions of the initiative, which the Ninth Circuit Court of Appeals

3 affirmed on November 18, 2014. The Court concluded that Proposition 35 unnecessarily chills sex

4 offenders' First Amendment rights in three ways:

5

(1) The Act does not make sufficiently clear which Internet Service

Providers and Internet identifiers sex offenders would be required to

6

report;

7

(2) The Act provides insufficient safeguards preventing the public

release of the information sex offenders do report; and 8

(3) The 24-hour reporting requirement is onerous and overbroad. 9

Doe v. Harris, 772 F.3d 563, 578

10

(9th Cir. 2014).

11

On March 30, 2015, the parties filed a Joint Case Management Statement with this

12 Court in which Interveners requested that proceedings in this Court be stayed while Intervenors

13 pursued legislation addressing this Court and the Ninth Circuit's concerns. Specifically, Intervenors

14 proposed that this litigation be stayed until September 15,2015, but iflntervenors file a status report

15 by September 14 indicating that the Legislature has approved legislation addressing the courts'

16 concerns, but the time for the Governor to sign or veto the bill had not yet elapsed, the stay would

17 automatically extend until October 12, 2015. Interveners further proposed that if the Governor vetoed

18 the bill, the stay would expire and the parties would stipulate to a permanent injunction for the putative

19 class. Ifthe Governor either signed the bill or failed to act by October 12, 2015, the stay would

20 automatically extend until voluntary dismissal of this action, or until the Court hears Defendant and

21 Intervenors' joint motions for summary judgment.

22

Plaintiffs opposed the stay on the grounds that no bill had been introduced in the

23 California Legislature, which made it impossible for Plaintiffs to assess whether legislation would

24 resolve the problems identified by the Ninth Circuit or pass First Amendment scrutiny.

25

On April 7, 2015, this Court issued an order staying this case, noting that plaintiffs had

26 failed to articulate how they would suffer any prejudice from a stay, other than delay.

27

28

STATUS REPORT- NO. C 12-5713 TEH

2

Case 3:12-cv-05713-TEH Document 116 Filed 09/14/15 Page 4 of 6

1 3. 2

Senate Bill 448 On June 17, 2015, Senator Ben Hueso introduced amendments to SB 448 to address this

3 Court and the Ninth Circuit's constitutional concerns regarding Proposition 35. The bill was re-

4 referred to the Senate Public Safety Committee, which held a hearing and unanimously (7-0) passed an

5 amended version of the bill on August 17. The bill was then re-referred to the Committee on

6 Appropriations, which unanimously passed the bill on August 27. On September 1, 2015, the Senate

7 approved SB 448 without a single dissenting vote (39-0). A true and correct copy of the complete bill

8 history of SB 448 is attached to this Status Report as Attachment A.

9

As approved by the Senate, SB 448 addresses this Court and the Ninth Circuit's

10 concerns. The bill would:

11

(1) Eliminate the requirement that sex offenders register Internet

Service Providers, and clarify that sex offenders need only register

12

those Internet identifiers actually used to participate in online

communications; 13

(2) Limit the public disclosure of sex offenders' Internet identifiers

14

to instances where the Attorney General had determined, based on

specific, articulable facts, that disclosure is likely to protect

15

members of the public from sex-related crimes, kidnappings, or

human trafficking; 16

(3) Provide sex offenders with five working days to register new

17

Internet identifiers, rather than 24 hours; and

18

(4) Apply the registration requirements only to those who are

required to register for a crime where the use of the Internet was

19

essential to the commission of the crime.

20

A true and correct copy of the current version of SB 448 is attached to this Status

21 Report as Attachment B.

22

Once SB 448 passed the Senate, it was referred to the Assembly and read for the first

23 time. The ACLU of Northern California raised both constitutional and policy concerns about SB 448,

24 so Interveners and Senator Hueso continued to confer with the ACLU. These discussions, and

25 discussions with other interested parties and members of the Legislature, led Senator Hueso to draft a

26 series of amendments for consideration by the Assembly Committee on Public Safety. Under these

27 amendments:

28

STATUS REPORT- NO. C 12-5713 TEH

3

Case 3:12-cv-05713-TEH Document 116 Filed 09/14/15 Page 5 of 6

(1) Sex offenders would only have to register "any electronic mail

address or user name used for instant messaging or social

2

networking that is actually used for direct communication between

users on the Internet in a manner that makes the communication

3

not accessible to the general public";

4

(2) Reported Internet identifiers could not be released to members

ofthe public except by court order, and law enforcement could

5

only use reported identifiers to investigate a sex-related crime, a

kidnapping, or human trafficking;

6

(3) Sex offenders would have 30 days to register new Internet

7

identifiers, rather than 24 hours; and

8

(4) The requirements would only apply prospectively to sex

offenders who commit a felony requiring registration after

9

January 1, 2016, if a court determines based on specified criteria

that the felony requiring registration was facilitated by the use of

1 0

the Internet.

11

A true and correct copy of Senator Hueso 's proposed amendments to SB 448 are

12 attached to this Status Report as Attachment C.

13

On September 11, 2015, the ACLU sent Senator Hueso a letter indicating that they no

14 longer had constitutional objections to SB 448, although they would continue to oppose the bill on

15 policy grounds. The ACLU also voiced its strong opinion that the Legislature should delay its

16 consideration of SB 448 until the next legislative session to give interested parties more time to

17 provide input on the measure.

18

Unfortunately, although SB 448 garnered substantial bipartisan support in the closing

19 days of the legislative session, the Assembly simply ran out of time and was unable to vote on SB 448

20 before the session closed on September 11, 2015.

21 4. Further Proceedings In This Court

22

The parties have not yet had the opportunity to meet and confer over these

23 developments. It is Interveners' position, however, that these developments render any further

24 litigation in this Court at this time unnecessary. As before, Interveners remain willing to stipulate to

25 the entry of a permanent injunction if its legislative efforts are ultimately unsuccessful. However,

26 given that its legislative efforts have been successful to date, and given that the ACLU now has the

27 additional time that it requested to continue conferring over the provisions of SB 448, Interveners

28

STATUS REPORT- NO. C 12-5713 TEH

4

Case 3:12-cv-05713-TEH Document 116 Filed 09/14/15 Page 6 of 6

1 propose that the parties refrain from further litigation in order to give the legislative process sufficient

2 time to work.

3

Interveners will therefore allow the current stay to elapse according to its terms.

4 Interveners propose that the parties confer over how they will proceed and report to the Court at the

5 October 26, 2015 case management conference.

6 Dated: September 14, 20 15 7 8 9

Respectfully Submitted,
James C. Harrison Karen Getman Margaret R. Prinzing REMCHO, JOHANSEN & PURCELL, LLP

10

By: /S/ Margaret R. Prinzing

11

Attorneys for Interveners

Daphne Phung and Chris Kelly 12

13 (00257441-2) 14

15

16

17

18

19

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21

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STATUS REPORT- NO. C 12-5713 TEH

5

Case 3:12-cv-05713-TEH Document 116-1 Filed 09/14/15 Page 1 of 2
Attachment A

Case 3:12-cv-05713-TEH Document 116-1 Filed 09/14/15 Page 2 of 2 COMPLETE BILL HISTORY

BILL NUMBER : S.B. No. 448 AUTHOR Hueso TOPIC : Sex offenders: Internet identifiers.

TYPE OF BILL :

Active Urgency Non-Appropriations 2/3 Vote Required Non-State-Mandated Local Program Non-Fiscal Non-Tax Levy

BILL HISTORY 2e15 Sept. 1e Referred to Com. on PUB. S. Joint Rule 61(a) suspended. Art. IV.
Sec. 8(b) of the Constitution dispensed with. Sept. 1 In Assembly. Read first time. Held at Desk. Sept. 1 Read third time. Urgency clause adopted. Passed. (Ayes 39. Noes e.)
Ordered to the Assembly. Aug. 31 Read second time. Ordered to third reading. Aug. 27 From committee: Do pass. (Ayes 7. Noes e.) (August 27). Aug. 24 August 24 hearing: Placed on APPR. suspense file. Aug. 19 Set for hearing August 24. Aug. 18 Read second time and amended. Re-referred to Com. on APPR. Aug. 17 From committee: Do pass as amended and re-refer to Com. on APPR.
(Ayes 7. Noes e. Page 196e.) (July 14). July 1 Set for hearing July 14. June 17 From committee with author's amendments. Read second time and
amended. Re-referred to Com. on PUB. s.
Apr. 21 April 21 set for second hearing canceled at the request of author. Apr. 16 Set for hearing April 21. Apr. 15 From committee with author's amendments. Read second time and
amended. Re-referred to Com. on PUB. S. Apr. 14 April 14 set for first hearing canceled at the request of author. Mar. 2e Set for hearing April 14. Mar. 5 Referred to Corns. on PUB. S. and APPR. Feb. 26 From printer. May be acted upon on or after March 28. Feb. 25 Introduced. Read first time. To Com. on RLS. for assignment. To
print.

Case 3:12-cv-05713-TEH Document 116-2 Filed 09/14/15 Page 1 of 8
Attachment B

Case 3:12-cv-05713-TEH Document 116-2 Filed 09/14/15 Page 2 of 8

AMENDED IN SENATE AUGUST 18,2015 AMENDED IN SENATE JUNE 17,2015 AMENDED IN SENATE APRIL 15,2015

SENATE BILL

No. 448

Introduced by Senator Hueso (Principal coauthor: Senator Galgiani)
February 25, 2015

An act to amend Sections 290.012, 290.014, and 290.024 of, and to amend and repeal Section 290.015 of, the Penal Code, relating to sex offenders, and declaring the urgency thereof, to take effect immediately.
LEGISLATIVE COUNSEL'S DIGEST
SB 448, as amended, Hueso. Sex offenders: Internet identifiers. Existing law, the Californians Against Sexual Exploitation Act, an initiative measure enacted by the approval of Proposition 35 at the November 6, 2012, statewide general election (CASE Act), requires a person who is subject to the Sex Offender Registration Act to list any and all Internet identifiers established or used by the person and any and all Internet service providers used by the person on his or her sex offender registration. The CASE Act requires a person subject to sex offender registration to send written notice of any addition of, or change to, an Internet identifier or Internet service provider to the law enforcement agency with which he or she is currently registered within 24 hours. Existing case law currently enjoins the application of the above provisions of the CASE Act through the imposition of a preliminary injunction on the grounds that these provisions violate the First Amendment to the United States Constitution. The CASE Act allows its provisions to be amended by a statute in furtherance of its
96

Case 3:12-cv-05713-TEH Document 116-2 Filed 09/14/15 Page 3 of 8

SB 448

-2-

objectives passed in each house of the Legislature by a majority vote of the membership.
This bill would state the intent of the Legislature to amend the CASE Act to further its-pttl'fH:>ses-: objectives. The bill would delete the requirement that a person subject to sex offender registration list on his or her sex offender registration all Internet service providers used by him or her. The bill would require a person subject to sex offender registration for a crime where the use of the Internet was essential to the commission ofthe crime to list only those Internet identifiers actually used to participate in online communications, as specified. The bill would require the registrant to send written notice of any addition of, or change to, an Internet identifier to-the any law enforcement agency with which he or she is currently registered within 5 working days. The bill would authorize a law enforcement agency to which this information has been submitted to make the information available to another law enforcement agency for the sole purpose of preventing or investigating a sex-related crime, a kidnapping, or human trafficking, and would prohibit a law enforcement agency from disclosing this information to the public. The bill would authorize the Attorney General to disclose the information to another person if the Attorney General determines, based on specific, articulable facts, that the disclosure is likely to protect members of the public from sex-related crimes, kidnappings, or human trafficking, and the person to whom the disclosure is made signs an oath, as specified.
The bill would make other technical, nonsubstantive changes. Existing constitutional provisions require that a statute that limits the right of access to the meetings ofpublic bodies or the writings ofpublic officials and agencies be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest. This bill would make legislative findings to that effect. This bill would declare that it is to take effect immediately as an urgency statute.
Vote: %. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.

The people ofthe State of California do enact as follows:

1 SECTION 1. It is the intent of the Legislature to further the 2 objectives of the Californians Against Sexual Exploitation Act, an

96

Case 3:12-cv-05713-TEH Document 116-2 Filed 09/14/15 Page 4 of 8

-3-

SB 448

1 initiative measure enacted by the approval of Proposition 35 at the 2 November 6, 2012, statewide general election, by amending its 3 provisions to confmm with the requirements of the court in the 4 case of Doe v. Harris (Case numbers 13-15263 and 13-15267). 5 SEC. 2. Section 290.012 of the Penal Code is amended to read: 6 290.012. (a) Beginning on his or her first birthday following 7 registration or change of address, the person shall be required to 8 register annually, within five working days of his or her birthday, 9 to update his or her registration with the entities described in 10 subdivision (b) of Section 290. At the annual update, the person 11 shall provide current information as required on the Department 12 of Justice annual update fmm, including the information described 13 in paragraphs (1) to (4), inclusive, of subdivision (a) of Section 14 290.015. The registering agency shall give the registrant a copy 15 of the registration requirements from the Department of Justice 16 form. 17 (b) In addition, every person who has ever been adjudicated a 18 sexually violent predator, as defined in Section 6600 ofthe Welfare 19 and Institutions Code, shall, after his or her release from custody, 20 verify his or her address no less than once every 90 days and place 21 of employment, including the name and address of the employer, 22 in a manner established by the Department of Justice. Every person 23 who, as a sexually violent predator, is required to verify his or her 24 registration every 90 days, shall be notified wherever he or she 25 next registers of his or her increased registration obligations. This 26 notice shall be provided in writing by the registering agency or 27 agencies. Failure to receive this notice shall be a defense to the 28 penalties prescribed in subdivision (f) of Section 290.018 . 29 (c) In addition, every person subject to the Act, while living as 30 a transient in California, shall update his or her registration at least 31 every 30 days, in accordance with Section 290.011. 32 (d) No entity shall require a person to pay a fee to register or 33 update his or her registration pursuant to this section. The 34 registering agency shall submit registrations, including annual 35 updates or changes of address, directly into the Department of 36 Justice California Sex and Arson Registry (CSAR). 37 SEC. 3. Section 290.014 ofthe Penal Code is amended to read: 38 290.014. (a) Jfanypersonwhoisrequiredtoregisterpursuant 39 to the Act changes his or her name, the person shall inform, in 40 person, the law enforcement agency or agencies with which he or

96

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SB 448

- 4-

1 she is currently registered within five working days. The law 2 enforcement agency or agencies shall forward a copy of this 3 information to the Department of Justice within three working 4 days of its receipt. 5 (b) (I) lf any person who is required to register pursuant to the 6 Actfor a crime where the use ofthe Internet was essential to the 7 commission ofthe crime adds or changes an Internet identifier, as 8 described in Section 290.024, the person shall send written notice 9 ofthe addition or change to the law enforcement agency or agencies 10 with which he or she is currently registered within five working 11 days. Each person to whom this paragraph applies at the time this 12 paragraph becomes effective shall immediately provide the 13 information required by this paragraph within five working days. 14 (2) (A) A law enforcement agency to which an Internet 15 identifier is submitted pursuant to this subdivision, Section 16 290.012, or Section 290.015 shall make the Internet identifier 17 available to the Department of Justice. 18 (B) A-Except as provided in subparagraph (A), a law 19 enforcement agency to which an Internet identifier is submitted 20 pursuant to this subdivision, Section 290.012, or Section 290.015 21 may only release that Internet identifier to another law enforcement 22 agency for the sole purpose of preventing or investigating a 23 sex-related crime, a kidnapping, or human trafficking. 24 (C) Notwithstanding Sections 290.45 and 290.46, a law 25 enforcement agency shall not disclose an Internet identifier 26 submitted pursuant to this subdivision, Section 290.012, or Section 27 290.015 to the public, except that the Attorney General may 28 disclose an Internet identifier to another person if the Attorney 29 General has determined, based on specific, articulable facts, that 30 the disclosure is likely to protect members of the public from 31 sex-related crimes, kidnappings, or human trafficking, and the 32 person to whom the disclosure is made signs an oath promising to 33 use the information only for the identified purpose, to maintain 34 the confidentiality ofthe information, and to refrain from disclosing 35 the information to anyone who has not been granted access to the 36 information by the Attorney General. 37 SEC. 4. Section 290.015 of the Penal Code, as amended 38 November 6, 2012, by initiative Proposition 35, Section 12, is 39 amended to read:

96

Case 3:12-cv-05713-TEH Document 116-2 Filed 09/14/15 Page 6 of 8

- 5-

SB 448

1 290.015. (a) ApersonwhoissubjecttotheActshallregister, 2 or reregister if he or she has previously registered, upon release 3 from incarceration, placement, commitment, or release on probation 4 pursuant to subdivision (b) of Section 290. This section shall not 5 apply to a person who is incarcerated for less than 30 days if he 6 or she has registered as required by the Act, he or she returns after 7 incarceration to the last registered address, and the annual update 8 of registration that is required to occur within five working days 9 of his or her birthday, pursuant to subdivision (a) of Section 10 290.0 12, did not fall within that incarceration period. The 11 registration shall consist of all of the following: 12 ( 1) A statement in writing signed by the person, giving 13 information as shall be required by the Department of Justice and 14 giving the name and address of the person's employer, and the 15 address of the person's place of employment if that is different 16 from the employer's main address. 17 (2) The fingerprints and a current photograph of the person 18 taken by the registering official. 19 (3) The license plate number of any vehicle owned by, regularly 20 driven by, or registered in the name of the person. 21 (4) A-Ifthe person is required to registerfor a crime where the 22 use of the Internet was essential to the commission of the crime, 23 a list of any and all Internet identifiers used by the person for 24 communicative purposes, as defined in Section 290.024. 25 (5) A statement in writing, signed by the person, acknowledging 26 that the person is required to register and update the information 27 in paragraph (4), as required by this chapter. 28 (6) Notice to the person that, in addition to the requirements of 29 the Act, he or she may have a duty to register in any other state 30 where he or she may relocate. 31 (7) Copies ofadequate proofofresidence, which shall be limited 32 to a California driver's license, California identification card, recent 33 rent or utility receipt, printed personalized checks or other recent 34 banking documents showing that person's name and address, or 35 any other information that the registering official believes is 36 reliable. If the person has no residence and no reasonable 37 expectation of obtaining a residence in the foreseeable future, the 38 person shall so advise the registering official and shall sign a 39 statement provided by the registering official stating that fact. 40 Upon presentation of proof of residence to the registering official

96

Case 3:12-cv-05713-TEH Document 116-2 Filed 09/14/15 Page 7 of 8

SB 448

-6-

1 or a signed statement that the person has no residence, the person 2 shall be allowed to register. If the person claims that he or she has 3 a residence but does not have any proof of residence, he or she 4 shall be allowed to register but shall furnish proof of residence 5 within 30 days of the date he or she is allowed to register. 6 (b) Within three days thereafter, the registering law enforcement 7 agency or agencies shall forward the statement, fingerprints, 8 photograph, and vehicle license plate number, if any, to the 9 Department of Justice. 10 (c) (1) If a person fails to register in accordance with 11 subdivision (a) after release, the district attorney in the jurisdiction 12 where the person was to be paroled or to be on probation may 13 request that a warrant be issued for the person's arrest and shall 14 have the authority to prosecute that person pursuant to Section 15 290.018. 16 (2) Ifthe person was not on parole or probation or on postrelease 17 community supervision or mandatory supervision at the time of 18 release, the district attorney in the following applicable jurisdiction 19 shall have the authority to prosecute that person pursuant to Section 20 290.018: 21 (A) If the person was previously registered, in the jurisdiction 22 in which the person last registered. 23 (B) If there is no prior registration, but the person indicated on 24 the Department of Justice notice of sex offender registration 25 requirement form where he or she expected to reside, in the 26 jurisdiction where he or she expected to reside. 27 (C) If neither subparagraph (A) nor (B) applies, in the 28 jurisdiction where the offense subjecting the person to registration 29 pursuant to this Act was committed. 30 SEC. 5. Section 290.015 of the Penal Code, as amended by 31 Section 17 of Chapter 867 of the Statutes of 2012, is repealed. 32 SEC. 6. Section 290.024 ofthe Penal Code is amended to read: 33 290.024. For purposes of this chapter, 34 "Internet identifier" means an electronic mail address, user name,
35 screen name, or similar identifier actually used to participate in
36 online communications, including, but not limited to, Internet 37 forum discussions, Intemet chat room discussions, emailing, instant
38 messaging, social networking, or similar methods of
39 communicating online. For the purpose of this chapter, an "Internet 40 identifier" does not include Internet passwords, or any electronic

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- 7-

SB448

1 mail address, user name, screen name, or similar identifier used 2 solely to read online content, or solely for transactions with a lawful 3 commercial enterprise or government agency concerning a lawful 4 commercial or governmental transaction with that enterprise or 5 agency. 6 SEC. 7. The Legislature finds and declares that Section 3 of 7 this act, which amends Section 290.014 ofthe Penal Code, imposes 8 a limitation on the public's right of access to the meetings ofpublic 9 bodies or the writings of public officials and agencies within the 10 meaning of Section 3 of Article I of the California Constitution. 11 Pursuant to that constitutional provision, the Legislature makes 12 the following findings to demonstrate the interest protected by this 13 limitation and the need for protecting that interest: 14 In order to protect the rights afforded by the First Amendment 15 to the United States Constitution, it is necessary that Internet 16 identifier information provided to law enforcement agencies by 17 registerable sex offenders as part of their registration not be made 18 generally available to the public. 19 SEC. 8. This act is an urgency statute necessary for the 20 immediate preservation of the public peace, health, or safety within 21 the meaning of Article IV of the Constitution and shall go into 22 immediate effect. The facts constituting the necessity are: 23 In order to protect the rights afforded by the First Amendment 24 to the United States Constitution while furthering the objectives 25 of the Californians Against Sexual Exploitation Act, an initiative 26 measure enacted by the approval ofProposition 35 at the November 27 6, 2012, statewide general election, at the earliest possible time, 28 it is necessary that this act take effect immediately.

0
96

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Attachment C

Case 3:12-cv-05713-TEH Document 116-3 Filed 09/14/15 Page 2 of 5

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Substantive
AMENDMENTS TO SENATE BILL NO. 448 AS AMENDED IN SENATE AUGUST 18,2015

Amendment 1 In the heading, below line 2, insert:
(Coauthors: Senators Hall and Runner) (Coauthor: Assembly Member Mathis)

Amendment2 In the title, in line 1, strike out "and 290.024" and insert:
290.024, and 290.45

Amendment3 On page 4, strike out lines 5 to 36, inclusive, and insert:
(b) If any person who is required to register Internet identifiers pursuant to Section 290.024 adds or changes an Internet identifier, as defined in Section 290.024, the person shall send wlitten notice by mail of the addition or change to the law enforcement agency or agencies with which he or she is currently registered within 30 working days ofthe addition or change. The law enforcement agency or agencies shall make the information available to the Department of Justice.

Amendment4 On page 5, strike out lines 21 to 24, inclusive, and insert:
(4) A list of all Internet identifiers actually used by the person, as required by Section 290.024.

Amendment 5 On page 6, in line 33, strike out "chapter," and insert:
chapter:

Case 3:12-cv-05713-TEH Document 116-3 Filed 09/14/15 Page 3 of 5

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Substantive

Amendment 6 On page 6, strike out lines 34 to 40, inclusive, on page 7, strike out lines 1 to 5, inclusive, and insmt:
(a) A person who is convicted of a felony on or after January 1, 2016, requiring registration pursuant to the Act, shall register his or her Internet identifiers if a court determines at the time of sentencing that any of the following apply:
(1) The person used the Internet to collect any private information to identify a victim of the crime to further the commission of the crime.
(2) The person was convicted of a felony pursuant to subdivision (b) or (c) of Section 236.1 and used an electronic communication device, as defined tmder subdivision (b) of Section 653 .2, to traffic a victim of the crime.
(3) The person was convicted of a felony pursuant to Chapter 7.5 (commencing with Section 311) and used an electronic communication device, as defined under subdivision (b) of Section 653 .2, to prepare, publish, distribute, send, exchange, or download the obscene matter or matter depicting a minor engaging in sexual conduct, as defined in subdivision (d) of Section 311.4.
(b) For purposes of this chapter: (1) "Internet identifier" means any electronic mail address or user name used for instant messaging or social networking that is actually used for direct commtmication between users on the Internet in a manner that makes the communication not accessible to the general public. "Internet identifier" does not include Internet passwords, date of birth, social security number, or PIN number. (2) "Private information" means any information that identifies or describes an individual, including, but not limited to, his or her name; electronic mail, chat, instant messenger, social networking, or similar name used for Intemet communication; social security number; account numbers; passwords; personal identification numbers; physical description; physical location; home address; home telephone number; education; :financial matters; medical or employment history; and statements made by, or attributed to, the individual. SEC. 7. Section 290.45 of the Penal Code is amended to read: 290.45. (a) (1) Notwithstanding any other-p1't7V'i-si~ law, and except as provided in paragraph (2), any designated law enforcement entity may provide information to the public about a person required to register as a sex offender pursuant to Section 290, by whatever means the entity deems appropriate, when L1cccssary to ensure the public safety based upon information available to the entity concerning that specific person. (2) The law enforcement entity shall include, with the disclosure, a statement that the purpose of the release of information is to allow members of the public to protect themselves and their children from sex offenders. (3) Community notification by way of an Internet Web site shall be governed by Section 290.46, and a designated law enforcement entity may not post on an Internet Web site any information identifying an individual as a person required to register as a sex offender except as provided in that section unless there is a warrant outstanding for that person's arrest.

Case 3:12-cv-05713-TEH Document 116-3 Filed 09/14/15 Page 4 of 5

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Substantive

(b) Infonnation that may be provided pursuant to subdivision (a) may include, but is not limited to, the offender's name, known aliases, gender, race, physical description, photograph, date of birth, address, which shall be verified prior to publication, description and license plate number ofthe offender's vehicles or vehicles tl1e offender is known to drive, type ofv ictim targeted by the offender, relevant parole or probation conditions, crimes resulting in classification under this section, and date ofrelease from confinement, but excluding infonnation that would identify the victim. It shan not include any Internet identifier submitted P-ursuant to this cha"Rter.
(c) (1) The designated law enforcement entity may authorize persons and entities who receive the infom1ation pursuant to this section to disclose information to additional persons only if the entity determines that djsclosure to the additional persons will enhance the pllblic safety and identifies the appropriate scope offmther disclostrre. A law enforcement entity may not authorize any disclosme of this information by--its pffieetnentplacing that information on an £ntemet Web-site-;- site. m1d shall not authorize
disclosure oflnterneUdenti:fiers st1bmitted pursuant to this chapter. except as r-rovided
in subdivision (h). (2) A person who receives information from a law enforcement entity pursuant
to paragraph (1) may disclose that information onJy in the manner and to the extent authorized by the law enforcement entity.
(d) ( l) A designated law enforcement entity and its employees shall be immw1e from liability for good faith conduct tu1der this section.
(2) Any public or private educational institution, day care facility, or any child care custodian described in Section 1Jl 65.7, or any employee of a public or private educntjonal institution or day care facilily which in good faith disseminates information as aulhorizedpursuantto subdivision (c) shall be im:mtme from civil liability.
(e) (1) Any person who llses infonnation djsclosed pursuant to th:is section to commit a felonysball be punished, in addition and consecutive to any other punishment, by a (ive-year term of imprisonment pmsua:ot to subdivision (b) of Section 1170.
(2) Any pexson who uses information disclosed pursuant to tllis section to commit a misdemeanor shall be subject to, in addition to any other penalty or tine impo eel, a fine of not less than five hLmdred dollars ($500) and not more than one thousand dollars ($ 1,000).
(f) For purposes of this section, "designated law enforcement entity" means the Department of Justice, every d'strict attorney, the Department of onections, the Department of the Youth Authority, and eve1y state or Joe~ l agency expressly authorized by statute to investigate or prosecute law violators.
(g) The pllblic notification provisions of this section are applicable to eve1y
person required toT gister pursuant to Section 290, without regard to when his or her
crimes were committed or his or her duty to register puJs·uant to Section 290 arose,
and to every offense described in_ Section 290, regardless ofwben it was committed.
{h) (1) Notwithstanding any other law. a designated law enforcement entity shall only J.LSe tm Internet identifier submitted pursuant to this chapter, or release that Internet identmer to another law enforcement entity, fOT the pmnose of investigating a
sex- related crjme. a kidnapping, or human trafficki1lg. (2) A designated law enforcement entity shall not disclose or authorize persons
or entities to disclose an Intemet ide.ohfier 5ubmilted pursuant to this chapter to the public or other jJersons, exc~t as required by court order.

Case 3:12-cv-05713-TEH Document 116-3 Filed 09/14/15 Page 5 of 5

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Substantive

Amendment 7 On page 7, in line 6, strike out "SEC. 7.'' and insert:
SEC. 8.

Amendment 8 On page 7, in line 6, strike out "Section 3 of'

Amendment 9 On page 7, in line 7, strike out "290.014" and insert: 290.45
Amendment 10 On page 7, in line 19, strike out "SEC. 8." and insert: SEC. 9.
- 0-

 
 1

UNITED STATES DISTRICT COURT

2

NORTHERN DISTRICT OF CALIFORNIA

3

4 JACK ROE, et al.,

5

Plaintiffs,

Case No. 12-cv-05713-TEH

6

v.

7 KAMALA D. HARRIS,

SCHEDULING ORDER

8

Defendant.

9

10

This matter came before the Court for a case management conference on October

11 26, 2015. The Court previously stayed these proceedings to permit Intervenors the

12 opportunity to pursue a legislative resolution of this matter. Legislation resolving this

United States District Court Northern District of California

13 matter was not enacted in 2015, but Intervenors have requested additional time to pursue

14 their legislation in the second half of the current 2015-16 legislative session. Pursuant to

15 stipulation, and for good cause, the Court hereby ORDERS as follows:

16

1. For the reasons set forth in the Ninth Circuit’s opinion, Doe v. Harris, 772 F.3d 563

17

(9th Cir. 2014), affirming the preliminary injunction issued by this Court on January

18

11, 2013, and by the parties’ stipulation, the Court hereby DECLARES under 28

19

U.S.C. §2201 that California Penal Code sections 290.014(b) and 290.015(a)(4)-(6)

20

violate the First Amendment to the United States Constitution and cannot be

21

enforced.

22

2. Entry of final judgment is deferred to allow for a further reasonable time to enable

23

Intervenors to continue pursuing legislation that may resolve this matter.

24

3. A further case management conference shall be held on Monday, March 21, 2016,

25

at 1:30 PM in Courtroom 12. The parties shall file an updated joint case

26

management statement no later than seven days prior to the case management

27

conference, providing an update as to the status of Intervenors’ proposed legislation

28

and setting forth the parties’ views as to the implications for disposition of this case.

1

4. At any juncture during which this case remains pending and it becomes apparent

2

that Intervenors’ efforts to pass legislation are either successful or not successful,

3

the parties will provide a joint update to the Court.

4

5. No further stay of the proceedings is in effect, but the parties shall meet and confer

5

prior to seeking entry of final judgment or bringing any motion.

6

6. The parties will not seek to extend this case beyond the current 2015-2016

7

legislative session.

8

9 IT IS SO ORDERED.

10

11 Dated: 10/26/15 12

_____________________________________ THELTON E. HENDERSON United States District Judge

United States District Court Northern District of California

13

14

15

16

17

18

19

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22

23

24

25

26

27

28 2

 
 Case 3:12-cv-05713-TEH Document 134 Filed 01/03/17 Page 1 of 5

MICHAEL T. RISHER (SB# 191627) 1 mrisher@aclunc.org
LINDA LYE (SB# 215584) 2 llye@aclunc.org
AMERICAN CIVIL LIBERTIES UNION 3 FOUNDATION OF NORTHERN CALIFORNIA, INC.
39 Drumm Street 4 San Francisco, CA 94111
Telephone: (415) 621-2493 5 Facsimile: (415) 255-8437

6 LEE TIEN (SB# 148216)

7

tien@eff.org ELECTRONIC FRONTIER FOUNDATION

8

815 Eddy Street San Francisco, CA 94109

9 Telephone: (415) 436-9333 Facsimile: (415) 436-9993
10

11

Attorneys for Plaintiffs JOHN DOE, et al.,

12

on behalf of themselves and others similarly situated

13 UNITED STATES DISTRICT COURT

14 FOR THE NORTHERN DISTRICT OF CALIFORNIA

15

16

JOHN DOE, et. al, on behalf of themselves and ) Civil Case No. 3:12-CV-05713-TEH

17 others similarly situated,

)

18

Plaintiffs,

) ) )

Stipulation and Joint Request for a Court Order Re: the Parties’ Settlement

19

vs.

20 KAMALA D. HARRIS,

) ) )

of Plaintiffs’ Claim for Costs and Attorneys’ Fees

)

21

Defendant,

) )

[Proposed]

22 and

) )

Order

23

)

DAPHNE PHUNG; CHRIS KELLY,

)

24

)

Intervenors.

)

25

)

)

26

27

28
STIPULATION TO GRANT ATTORNEYS’ FEES [PROPOSED] ORDER
CASE NO.: 3:12-CV-05713-TEH

Case 3:12-cv-05713-TEH Document 134 Filed 01/03/17 Page 2 of 5

1

Background

2

Plaintiffs filed this class-action lawsuit in 2012, challenging the portions of a newly enacted

3 initiative measure that required all persons who must register under California Penal Code § 290

4 because they have been convicted of sex-related offenses to provide police with their Internet

5 identifiers and the names of their Internet service providers. This Court granted a temporary

6 restraining order halting enforcement of the law and then a preliminary injunction, prohibiting

7 Defendant from enforcing the challenged portions of the initiative, on the grounds that the statute

likely violated the First Amendment. Dkt. 36, 78. 8
After Defendant and Intervenors appealed, this Court stayed the matter pending resolution of 9
the appeal at the request of the parties. Dkt. 100. The Ninth Circuit affirmed this Court’s decision 10
to grant a preliminary injunction and remanded the case back to this Court for further proceedings.

11 Dkt. 105; see Doe v. Harris, 772 F.3d 563 (9th Cir. 2014).

12

On October 26, 2015, by the parties’ stipulation, this Court declared that the challenged

13 provisions “violate the First Amendment to the United States Constitution and cannot be enforced.”

14 Dkt. 119 at 1. It then deferred entry of final judgment to allow Intervenors to pursue legislation that

15 would amend the law in a way that would resolve the matter without further proceedings. Id. at 1-2.

16

On September 28, 2016, the Governor signed into law SB 448, which amends the challenged

17 provisions. Stats. 2016, ch. 772 (SB 448). When it goes into effect on January 1, 2017, SB 448 will

18 significantly narrow the scope of the challenged Internet registration requirement. Most significantly

19 for this case, registration will be required only for people convicted after January 1, 2017 of a limited

20 number of enumerated offenses who used the Internet as part of the crimes. See Dkt. 127 at 2-3

21 (describing law in detail). The parties agree that these changes will moot this litigation.

22

After the Governor signed this amendment, Plaintiffs and Defendant Harris began meeting

23 and conferring regarding costs and attorneys’ fees. See Local Rule 54-5(a). Plaintiffs took the

24 position that they are entitled to fees and costs under 42 U.S.C. § 1988 because they obtained a 25 preliminary injunction and a declaration that the challenged provisions are unconstitutional. See 26 Lefemine v. Wideman, 133 S. Ct. 9, 11 (2012); Watson v. Cty. of Riverside, 300 F.3d 1092, 1096 (9th 27 Cir. 2002). They also asserted that the fees should fully compensate them for the time they expended,

28

2

STIPULATION TO GRANT ATTORNEYS’ FEES

[PROPOSED] ORDER

CASE NO.: 3:12-CV-05713-TEH

Case 3:12-cv-05713-TEH Document 134 Filed 01/03/17 Page 3 of 5

1 because they obtained all the relief they requested. See Hensley v. Eckerhart, 461 U.S. 424, 429

2 (1983). They provided the Defendant with detailed time records, as well as information regarding

3 their attorneys’ rates and the reasonableness of those rates.

4

On December 7, 2016, Plaintiffs and Defendant advised the Court that they had been meeting

5 regarding fees and that a settlement recommendation was under consideration in Defendant Harris’s
6 office. See Dkt. 130 at 2. The parties also advised the Court that once Defendant approves a 7 settlement, her office’s policies will require that it be reduced to a consent decree, judgment, or other
court order before it can be paid, and that Plaintiffs and Defendant therefore contemplate that they 8
will submit a joint request for an order directing Defendant Harris’s payment of costs and attorneys’ 9
fees pursuant to the parties’ settlement. If approved by the Court, Defendant will then request an 10
appropriation for the settlement amount in the California Legislature’s next “claims bill.” See id. The 11
Court granted the requested order. See Dkt. 132. It also granted the Parties’ joint request that if they 12 reach an agreement, Plaintiffs need not submit the evidence regarding services rendered, counsel’s
13 qualification and rates, and attempts to resolve the matter informally that would be required in a

14 contested motion under Local Rule 54-5(b). Id.

15

The Parties’ Request

16

Plaintiffs and Defendants have now reached an agreement regarding costs and fees and jointly

17 request that the Court enter the following order:

18

1. Defendant will pay to Plaintiffs a total of $522,611.07 in costs and fees ($715.77 in

19

costs and $521,895.30 in attorneys’ fees).

20

2. This payment will completely satisfy Defendant’s obligation to pay costs and fees in

21

this matter; Plaintiffs will not be entitled to any interest.

22

3. This payment is contingent upon certification of availability of funds, the approval of the

23

Director of the Department of Finance, and the enactment by the Legislature and Governor

24

of a “claims bill” that includes the agreed-upon amount.

25

4. If the State fails to enact such a bill, or Defendant otherwise fails to pay the agreed-

26

upon amount by June 30, 2017, Plaintiffs retain the right to seek costs, fees, and interest

27

by noticed motion.

28

3

STIPULATION TO GRANT ATTORNEYS’ FEES

[PROPOSED] ORDER

CASE NO.: 3:12-CV-05713-TEH

Case 3:12-cv-05713-TEH Document 134 Filed 01/03/17 Page 4 of 5

1

5. The time for Plaintiffs to file any motion for costs and fees is extended until August 29,

2

2017.

3 DATED: December 27, 2016

Respectfully submitted,

4

/s/ Michael T. Risher

5

Attorney for Plaintiffs

6

/s/ Benjamin M. Glickman

Attorney for Defendant

7

8

Declaration

I declare under penalty of perjury under the law of the United States that concurrence in the 9

filing of this document has been obtained from each of the other signatories. See Local Rule 5-1(i)(3). 10

Executed on December 27, 2016, in San Francisco, California. 11

/s/ Michael T. Risher 12
Attorney for Plaintiffs 13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

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4

STIPULATION TO GRANT ATTORNEYS’ FEES

[PROPOSED] ORDER

CASE NO.: 3:12-CV-05713-TEH

Case 3:12-cv-05713-TEH Document 134 Filed 01/03/17 Page 5 of 5

1 [PROPOSED]
2 ORDER
3 Pursuant to the parties’ stipulation, and for good cause, the Court hereby ORDERS as
4 follows:
5 1. Defendant will pay to Plaintiffs a total of $522,611.07 in costs and fees ($715.77 in costs and
6 $521,895.30 in attorneys’ fees).

7 2. This payment will completely satisfy Defendant’s obligation to pay costs and fees in this

8

matter; Plaintiffs will not be entitled to any interest.

9 3. This payment is contingent upon certification of availability of funds, the approval of the

10

Director of the Department of Finance, and the enactment by the Legislature and Governor of a

11

“claims bill” that includes the agreed-upon amount.

12 4. If the State fails to enact such a bill, or Defendant otherwise fails to pay the agreed-upon

13

amount by June 30, 2017, Plaintiffs retain the right to seek costs and fees by noticed motion.

14 5. The time for Plaintiffs to file any motion for costs and fees is extended until August 29, 2017.

15

16 IT IS SO ORDERED.

17 Dated:___1_/_3__/_2_0_1_7______ 18

_____________________________________ Honorable Thelton E. Henderson

19

20

21

22

23

24

25

26

27

28

5

STIPULATION TO GRANT ATTORNEYS’ FEES

[PROPOSED] ORDER

CASE NO.: 3:12-CV-05713-TEH

 
 Case 3:12-cv-05713-TEH Document 136 Filed 01/12/17 Page 1 of 2

MICHAEL T. RISHER (SB# 191627) 1 mrisher@aclunc.org
LINDA LYE (SB# 215584) 2 llye@aclunc.org
AMERICAN CIVIL LIBERTIES UNION 3 FOUNDATION OF NORTHERN CALIFORNIA, INC.
39 Drumm Street 4 San Francisco, CA 94111
Telephone: (415) 621-2493 5 Facsimile: (415) 255-8437

6 LEE TIEN (SB# 148216) tien@eff.org
7 ELECTRONIC FRONTIER FOUNDATION 8 815 Eddy Street
San Francisco, CA 94109 9 Telephone: (415) 436-9333
Facsimile: (415) 436-9993 10
Attorneys for Plaintiffs 11 JOHN DOE, et al., 12 on behalf of themselves and others similarly
situated
13 UNITED STATES DISTRICT COURT
14 FOR THE NORTHERN DISTRICT OF CALIFORNIA
15

16 JOHN DOE, et. al, on behalf of themselves and ) Civil Case No. 3:12-CV-05713-TEH

17 others similarly situated,

18

Plaintiffs,

)
) Stipulation and Joint Request for
)
) dismissal under Federal Rule of Civil

19

vs.

) Procedure 41(a)(1)(A)(ii)
)

20 KAMALA D. HARRIS,

)
) [Proposed]

21

Defendant,

22 and

)
) Order
) )

23

)

DAPHNE PHUNG; CHRIS KELLY,

)

24

)

Intervenors.

)

25

)

)

26

27

28
STIPULATION FOR DISMISSAL [PROPOSED] ORDER
CASE NO.: 3:12-CV-05713-TEH

Case 3:12-cv-05713-TEH Document 136 Filed 01/12/17 Page 2 of 2

1

Because there are no further issues to be resolved in this matter, the parties jointly request

2 and stipulate that this case be dismissed under Federal Rule of Civil Procedure 41(a)(1)(A)(ii).

3 DATED: January 11, 2017

Respectfully submitted,

4

/s/ Michael T. Risher

5

Attorney for Plaintiffs

6

/s/ Benjamin M. Glickman

Attorney for Defendant

7

/s/ Margaret R. Prinzing

8

Attorney for Interveners

9 Declaration

10

I declare under penalty of perjury under the law of the United States that concurrence in the

11 filing of this document has been obtained from each of the other signatories. See Local Rule 5-1(i)(3).

12

Executed on January 11, 2017, in San Francisco, California.

13

/s/Michael T. Risher

14

Attorney for Plaintiffs

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16

[PROPOSED]

17

ORDER

18

Pursuant to the parties’ stipulation, and for good cause, the Court hereby ORDERS that this

19 case is dismissed under Federal Rule of Civil Procedure 41(a)(1)(A)(ii).

20

21 IT IS SO ORDERED.

22 Dated:___1_/_1_2_/__2_0_1_7_____ 23

_____________________________________ Honorable Thelton E. Henderson

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25

26

27

28

2

STIPULATION FOR DISMISSAL

[PROPOSED] ORDER

CASE NO.: 3:12-CV-05713-TEH