In Surprise Move, New Justices Won't Revisit Sex Offender Ruling

By Casey C. Sullivan, Esq. on May 01, 2015 | Last updated on March 21, 2019

In a move that surprised many, the California's Supreme Court declined to revisit a controversial January ruling on mandatory registration for certain offenders. The case the court declined to rehear, Johnson v. Department of Justice, revived a mandatory registration law that many argued was homophobic and unjustly subjected gay and lesbian defendants to greater punishments than their straight counterparts.

The Johnson decision received a strong dissent from two Justices. Court observers had expected Governor Brown's recent appointees to push the court more to the left and to rehear the case. The decision this week is one sign that those predictions may have been misguided.

The Case in Question

In January, the California Supreme Court ruled 5-2 that the state's sexual offender registry law did not violate equal protection. That law allows courts to exercise discretion as to whether adults who had intercourse with minors aged 16 or 17 would have to register as sex offenders. Judges could apply leniency in cases, say, where high school sweethearts ended up on the wrong side of the age divide. It also allowed them to deny that leniency in cases of exploitation or coercion.

The law doesn't allow judges to exercise the same discretion when the offense is not vaginal intercourse. Adults who have consensual oral sex with 16 or 17-year-olds must register as sex offenders. In 2006, the court ruled that difference was unconstitutional -- it subjected similarly situated adults to disparate punishment for similar acts. When the court changed direction this January, reviving the difference, the dissent argued that the difference would disproportionately punish gay and lesbian offenders and provided extensive notes on the law's anti-gay origins.

Why Such a Surprise

Since the Johnson case was decided, two of the Supreme Court justices who had sided with the majority retired, including the Justice Baxter, the opinion's author. Brown's new appointees, Justices Mariano-Florentino Cuellar and Leondra Kruger were expected to be decidedly liberal votes on the court.

But, when it came time to decide whether Johnson would be reviewed, Cuellar and Kruger were on opposite sides. Kruger joined the more conservative side of the court in letting the opinion stand. A justice's reasons in deciding whether or not to review a case aren't public, so observers may never know exactly why she declined to rehear the issue. Whatever her reasons, the unexpected outcome surprised many. It may be an indicator that the political leanings of the new justice aren't as set in stone as some assumed.

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