Yesterday, I commented that it would be interesting to see how California courts deal with Proposition 83. I just didn't expect an answer so soon. In Doe v. Schwarzenegger, et al., no. 06-cv-06968-JSW, a federal district judge issued a Temporary Restraining Order (TRO) against the enforcement of the residency restrictions under Proposition 83. Criminal Appeal, a wonderful resource for Ninth Circuit criminal cases, has the TRO here. As with any TRO, the legal arguments are not really contained therein - those are usually in the memorandum of law supporting the TRO by the moving party. As of yet, I do not have a copy of that memorandum of law (if you have one, please email it to me). From the Order:
Therefore, for the foregoing reasons, it is ORDERED that Defendants are temporarily restrained from enforcing Cal. Penal Code 3003.5(b) and (c), as amended by the SPPCA, until November 27, 2006, or until further notice from this Court.
A hearing concerning a preliminary injunction is scheduled on November 27.
A couple of interesting notes about the TRO. In order to get a TRO, a party must show a likelihood of success on the merits. In this case, the judge found that the parties have a likelihood of success on both the Ex Post Facto Clause argument (based on retroactive application) and the due process claim. So far, no highest court has supported either of these arguments in striking down a residency or work restriction. Consequently, it is very unusual for a court to find a likelihood of success on the merits. Another point of interest, as noted by Kent Scheidegger of Crime and Consequences, is that the order only addresses the residency restrictions in Proposition 83 and not the other sections (including GPS monitoring and sentencing enhancements). However, I think as this litigation moves forward, I expect a challenge to GPS monitoring may also be included in the plaintiff's arguments.
I will be posting more about the TRO later today.
edit: I changed the title to reflect the extent of the TRO.