FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHN DOE, No. 09-17362
Plaintiff-Appellee, D.C. No.
v. 3:07-cv-03585-JL
KAMALA D. HARRIS, Northern District of
Defendant-Appellant. California,
San Francisco
ORDER
CERTIFYING
QUESTION TO
THE STATE
SUPREME COURT
OF CALIFORNIA
Filed April 4, 2011
Before: John T. Noonan, Diarmuid F. O’Scannlain, and
Stephen S. Trott, Circuit Judges.
COUNSEL
Peggy S. Ruffra, Supervising Deputy Attorney General of
California, argued the cause for the appellant, and filed the
briefs. Former Attorney General Edmund G. Brown and
Senior Assistant Attorney General Gerald A. Engler were also
on the briefs. Ms. Ruffra’s address is 455 Golden Gate Ave-
nue, Suite 11000, San Francisco, CA, 94102-7004.
Dennis P. Riordan, Riordan & Horgan, argued the cause for
the appellee, and filed the brief. Donald M. Horgan and
Michael S. Romano, Riordan & Horgan, were also on the
4393
4394 DOE v. HARRIS
briefs. These attorneys share the following address: Riordan
& Horgan, 523 Octavia Street, San Francisco, CA, 94102.
ORDER
O’SCANNLAIN, Circuit Judge:
We certify to the California Supreme Court the question set
forth in Part II of this order.
All further proceedings in this case are stayed pending
receipt of the answer to the certified question. This case is
withdrawn from submission until further order of this Court.
The parties shall notify the Clerk of this Court within three
days after the court accepts or rejects certification, and again
within three days if the court renders an opinion. The panel
retains jurisdiction over further proceedings.
I
Pursuant to Rule 8.548 of the California Rules of Court, a
panel of the United States Court of Appeals for the Ninth Cir-
cuit, before which this appeal is pending, certifies to the Cali-
fornia Supreme Court a question of law concerning the
interpretation of California plea agreements. The decisions of
the Courts of Appeal of the State of California provide no
controlling precedent regarding the certified question, the
answer to which may be determinative of this appeal. We
respectfully request that the California Supreme Court answer
the certified question presented below. Our phrasing of the
issue is not meant to restrict the court’s consideration of the
case. We agree to follow the answer provided by the Califor-
nia Supreme Court. If the Supreme Court declines certifica-
tion, we will resolve the issue according to our perception of
California law.
DOE v. HARRIS 4395
II
The question of law to be answered is:
Whether, under California law, the default rule of contract
interpretation is (a) that the law in effect at the time of a plea
agreement binds the parties, or (b) that the terms of a plea
agreement may be affected by changes in law.
III
The statement of facts is as follows.
A
In 1991, the state of California charged the Plaintiff-
Appellee, who is proceeding under the pseudonym “John Doe,”1
1
We have allowed Doe to continue to proceed under a pseudonym
because drawing public attention to his status as a sex offender is precisely
the consequence that he seeks to avoid by bringing this suit. However, no
party has moved to seal the opinions or orders of this Court and, indeed,
we held oral argument open to the public without objection. Moreover,
when Doe moved in the district court to proceed under a pseudonym and
to seal any document revealing his true identity, he stated that he did not
intend to “prevent[ ] the public from observing the proceedings or rulings
of this court.” The Attorney General did move to file the excerpts of
record under seal because “some of the documents contained [therein]
include Doe’s name and other identifying information.” We granted that
motion. But, to the extent that the Attorney General’s motion could be
construed as a request that we seal the instant order, or issue a heavily
redacted version of it, it is denied. Any danger that Doe’s identity could
be deduced from the scant information in the certification order is out-
weighed by the “public interest in understanding the judicial process.”
Hagestad v. Tragesser, 49 F.3d 1430, 1434 (9th Cir. 1995); see also Smith
v. Doe, 538 U.S. 84, 91 (2003) (publishing an opinion containing at least
as much potentially identifying information about a pseudonymous plain-
tiff as the instant case); Doe I v. Otte, 259 F.3d 979, 982-83 (9th Cir.
2001) (same); United States v. Stoterau, 524 F.3d 988 (9th Cir. 2008)
(denying motion to file disposition under seal, citing “the fundamental
importance of issuing public decisions” (internal quotation marks omit-
ted)).
4396 DOE v. HARRIS
with six counts of lewd and lascivious acts upon a child under
the age of fourteen. Doe was charged with three counts of
touching the victim’s buttocks, one count of touching her
breasts, one count of touching her vaginal area, and one count
of putting his tongue in her mouth. The victim, “S.A.,” was
the daughter of Doe’s close friends. Doe molested S.A. over
an eighteen-month period when S.A. babysat Doe’s younger
children, and when she attended a sleepover at his house as
a guest of his daughter. At the relevant time, Doe was in his
forties, and S.A. was just twelve and thirteen years old. If
convicted of these charges, Doe faced a maximum of eighteen
years in prison.
Doe entered into a plea agreement in which he pleaded
guilty to one count of committing a lewd and lascivious act
upon a child, and, in exchange, the State dropped the remain-
ing five counts. This agreement allowed Doe to avoid serving
any time in jail. It provided that the maximum penalties for
Doe’s conviction would be probation, participation in a work
furlough program, fines, and registration as a sex offender
under California Penal Code § 290.
At the time, section 290 provided that “the statements, pho-
tographs, and fingerprints herein required shall not be open to
inspection by the public or by any person other than a regu-
larly employed peace or other law enforcement officer.” Cal.
Penal Code § 290(i) (West 1991). California, like many other
states, has since passed a “Megan’s law,” which allows the
public to access the state’s sex offender registry. Cal. Penal
Code § 290 (West 2011). Pursuant to this law, California now
maintains a website through which members of the public can
obtain the names, addresses, and photographs of the state’s
registered sex offenders. Id. § 290.4. California’s Megan’s
law applies retroactively to sex offenders, such as Doe, who
committed their crimes before the law was passed. Id.
§ 290.023.
DOE v. HARRIS 4397
B
Doe brought suit against then-Attorney General Brown2
under 42 U.S.C. § 1983, alleging a violation of his due pro-
cess right to have his plea agreement honored. Specifically,
Doe claims that his inclusion in the public sex offender web-
site violated the State’s implicit promise that he would not be
subject to future amendments to section 290’s confidentiality
requirement.
The district court heard testimony from the prosecutor and
defense attorneys who were involved in Doe’s criminal case,
as well as from Doe himself. The court concluded that
“[w]hile there were other obvious benefits to Doe” in accept-
ing the plea bargain, such as avoiding prison, “the confidenti-
ality of registration was a material part of the deal as far as
Doe was concerned.” The district court also found that “the
confidentiality provision of Section 290 was critical to Doe’s
decision to plead guilty rather than proceed to trial.” This
finding was based on private discussions which Doe had with
his attorneys, and on Doe’s testimony about his motivations
for pleading guilty.
The only representation that the prosecutor made about sex
offender registration occurred when he was going over the
plea agreement with Doe and his attorneys. One of Doe’s
attorneys had drafted the plea agreement and gave it to the
prosecutor to review. The prosecutor then added the following
phrase by hand in the portion of the agreement labeled “maxi-
mum penalties”: “four years parole, 290 PC registration,
$10,000 restitution fine—$10,000 fine and testing per 290.2
PC.” Doe and his counsel signed their initials beside the addi-
tion to show their acceptance of the new terms. The prosecu-
tor testified that he added the phrase “P.C. 290 registration”
because that statute mandated sex offender registration for
2
The Court has substituted Attorney General Harris as the proper defen-
dant in this action in place of former Attorney General Brown.
4398 DOE v. HARRIS
anyone convicted of the crime of committing a lewd act upon
a child, and the prosecutor did not have the authority to
exempt Doe from that requirement.
The district court determined that “there was no explicit
agreement with respect to registration, except that the law
required it. Thus the Penal Code section—290 P.C. registra-
tion requirement—was handwritten into the change of plea
form by the prosecutor and initialed by Doe and his counsel,”
and “[n]o further elaboration appears.” The court also con-
cluded that “[n]o qualification or reservation of rights pending
future legislative changes was contemplated . . . by either
party.”
From these facts, the district court inferred that “the parties
could only have intended that the contemporary written ver-
sion of the statute was meant to apply.” The court reached this
conclusion because it felt that “one cannot reasonably inter-
pret the language of the plea agreement, which reads ‘P.C.
290,’ to mean [anything] other than compliance with that sec-
tion of the Penal Code, as it was written at the time of the
plea.”
Accordingly, the district court found that publicly disclos-
ing any of Doe’s previously confidential sex offender registra-
tion information would violate the terms of Doe’s plea
agreement, and issued an injunction barring Attorney General
Brown from so disclosing. The Attorney General timely
appealed.
IV
We respectfully submit that the question presented in Part
II requires certification because it poses an unsettled question
of California law which could determine the outcome of this
case.
DOE v. HARRIS 4399
Under the Due Process Clause, criminal defendants have a
right to enforce the terms of their plea bargains enforced. See
Santobello v. New York, 404 U.S. 257, 261 (1971). Plea
agreements are “construed in accordance with state law.”
Buckley v. Terhune, 441 F.3d 688, 690 (9th Cir. 2006). Here,
the district court found that, when Doe pleaded guilty in 1991,
“[n]o qualification or reservation of rights pending future leg-
islative changes was contemplated . . . by either party.”
Accordingly, the question is whether, under California law,
the default rule of contract interpretation is (a) that the law in
effect at the time of a plea agreement binds the parties, or (b)
that the terms of a plea agreement may be affected by changes
in law.3
The California Supreme Court touched on the question in
Swenson v. File, 475 P.2d 852 (Cal. 1970). There, speaking
about California commercial contracts, the court asserted that
“[t]he parties are presumed to have had existing law in mind
when they executed their agreement.” Id. at 856. The court
explained that “to hold that subsequent changes in the law
which impose greater burdens or responsibilities upon the par-
ties become part of that agreement would result in modifying
it without their consent, and would promote uncertainty in
commercial transactions.” Id.
But, after Swenson, three California Court of Appeal cases
applied the oposite rule to criminal plea agreements. The first
to do so was People v. Acuna, 92 Cal. Rptr. 2d 224 (Ct. App.
3
We have already held that California’s publication of its sex offender
registry does not constitute “punishment” within the meaning of the Ex
Post Facto Clause. See Hatton v. Bonner, 356 F.3d 955, 963-64 (9th Cir.
2004); cf. Smith v. Doe, 538 U.S. 84 (2003) (holding the same for Alaska’s
Megan’s law). We determined that the California legislature’s purpose in
passing Megan’s Law was to protect the public by disclosing truthful
information, not to punish sex offenders. See Hatton, 356 F.3d at 962. We
also concluded that the law was not “ ‘so punitive’ ” in effect as to negate
the legislature’s public safety purpose. Id. at 967 (quoting Smith, 538 U.S.
at 92).
4400 DOE v. HARRIS
2000). Gilbert Acuna pleaded guilty in 1992 to committing a
lewd act upon a child under the age of fourteen, in violation
of California Penal Code § 288. Id. at 226. At the time of
Acuna’s plea, California law allowed him to apply to the
court after his probation ended to have his conviction
expunged. Id. But, in 1997, the legislature amended that law
to prohibit expungement of section 288 convictions. Acuna
claimed that applying the amended statute to him violated his
plea agreement. The court rejected Acuna’s claim, however,
because there was “no express provision in his plea bargain
that mentions expungement,” nor was expungement “clearly
part of the parties’ understanding.” Id. at 228.
The California Court of Appeal held similarly in People v.
Gipson, 12 Cal. Rptr. 3d 478 (Ct. App. 2004). Lonnie Gipson
had pleaded guilty to a felony in 1993. Id. at 480. In 1994, the
California legislature passed the “Three Strikes” law, which
enhanced sentences for those with serious prior felony convic-
tions. In 2001, Gipson was convicted of assault with a deadly
weapon, and received an enhanced sentence under the Three
Strikes law, in part because of his 1992 conviction. Id. Gipson
claimed that the enhanced sentence violated his 1992 plea
agreement which, he argued, “incorporated by reference” the
prior, more lenient, recidivist statute. Id. (internal quotation
marks omitted).
The court rejected Gipson’s contention, holding that “not
only is the existing law read into contracts in order to fix their
obligations, but the reservation of the essential attributes of
continuing governmental power is also read into contracts as
a postulate of the legal order.” Id. at 481 (internal quotation
marks omitted). Ignoring Swenson, the court instead followed
a California case which allowed marriage contracts to be
amended by subsequent legislation. Both types of contracts,
the court reasoned, implicate the public interest, and, there-
fore, are “ ‘deemed to incorporate and contemplate not only
the existing law but the reserve power of the state to amend
the law or enact additional laws for the public good and in
DOE v. HARRIS 4401
pursuance of public policy.’ ” Id. (quoting In re Marriage of
Walton, 104 Cal. Rptr. 472, 476 (Ct. App. 1972)).
The Court of Appeal applied the same rule in In re Lowe,
31 Cal. Rptr. 3d 1 (Ct. App. 2005). There, Lowe pleaded
guilty to second-degree murder in 1985, a crime which carried
a prison term of fifteen years to life. Id. at 3. Under the then-
existing California law, the California Board of Parole (“the
Board”) had sole responsibility for determining the amount of
prison time that Lowe would in fact serve, beyond his mini-
mum term of fifteen years. In 1988, however, the California
voters amended the state constitution, and gave the governor
the power to veto the Board’s parole decisions, even those
regarding prisoners who had pleaded guilty before the consti-
tutional amendment was passed. Id. at 12. In 2002, the Board
found Lowe suitable for parole, but the Governor vetoed that
determination. Id. at 3.
Lowe brought a habeas petition in California state court,
claiming that the application of the 1988 constitutional
amendment to him violated his plea agreement. Id. at 7-8. He
argued that his plea agreement contained an implicit promise
that his parole application would be decided in accordance
with the laws existing at the time of his plea, and that future
legislative changes designed to make parole more difficult to
obtain would not be applied to him. Id. The court rejected
Lowe’s claim, concluding that Lowe’s plea agreement did not
contain a promise that parole procedures “would not change
over time.” Id. at 13 (internal quotation marks omitted).
But the most recent California Court of Appeal case on this
issue, People v. Arata, 60 Cal. Rptr. 3d 160 (Ct. App. 2007),
appears to be in tension with the previous three. In Arata, the
court considered the same issue it decided in Acuna, viz.,
whether it violated the plea bargain of a defendant, who
pleaded guilty to committing a lewd act upon a child, to sub-
ject him to a subsequent law barring expungement of such
convictions. Id. at 161. The court noted that, at the time of
4402 DOE v. HARRIS
Arata’s plea, expungement was available “[i]n any case in
which a defendant [had] fulfilled the conditions of probation.”
Id. at 162 (internal quotation marks omitted). Thus, even
though expungement was not expressly mentioned in Arata’s
plea agreement, the court held that, “[b]y agreeing to give
[Arata] probation, the plea bargain implicitly included the
promise of [expungement] as part of probation.” Id. at 166. In
deciding whether California’s Megan’s Law may be applied
to Doe, it is unclear whether we should apply Swenson and
Arata, on the one hand, or Gipson, Acuna, and Lowe, on the
other. As the answer to this question could determine the out-
come of this case, we pray the California Supreme Court to
accept our certification request.
V
The names and addresses of counsel for the parties can be
found in the counsel listing. See Cal. R. Ct. 8.548(b)(1). If the
Supreme Court of California accepts this request, Attorney
General Harris should be deemed the petitioner. Id.
The Clerk is hereby directed to transmit forthwith to the
California Supreme Court the original and ten copies of this
order, a certificate of service on the parties, and all relevant
briefs and excerpts of record. See Cal. R. Ct. 8.548(d). The
Clerk shall provide additional record materials if so requested
by the Supreme Court of California. See Cal. R. Ct. 8.548(c).
IT IS SO ORDERED.