Justices Weigh How the Law Is Enforced
High Court Debates 2 California Cases: Sex Crimes' Prosecution and Tribal Sovereignty
By David G. Savage
Los Angeles Times
April 1, 2003
WASHINGTON -- The Supreme Court debated two California cases Monday that could shape the future of law enforcement, one to decide whether sex crimes from the distant past can be prosecuted now and the other to decide whether county sheriffs can carry out raids on Indian reservations.
California is the only state to have repealed its time limit for filing charges for sex crimes against children.
And if the state wins in the high court, Bush administration lawyers say they will press for new national laws that would allow prosecutors to reopen old cases where DNA evidence is found.
"This could be a watershed in the law," says Seattle attorney Jeff Fisher, who represented the National Assn. of Criminal Defense Lawyers in the case.
The outcome could affect dozens of prosecutions for old sex crimes. It could also have some effect on the civil suits involving priests accused of sexual molestation, because a criminal conviction can be used to bolster a lawsuit seeking damages.
However, if the high court strikes down the California law, the ruling could be used by defense lawyers to limit inquiries into allegations of sexual misconduct from the past.
Until now, most legal experts have assumed the Constitution's ex post facto clause bars the government from reopening a case after the time limit for prosecution has expired.
But the California Legislature in 1994 repealed the time limit for filing charges against the perpetrators of sex crimes against people who were younger than 18 at the time.
To screen out false claims, the law also said prosecutors must have "independent evidence that clearly and convincingly corroborates the victim's allegations."
Under the new law, Marion Stogner, a 70-year-old Contra Costa man, was charged in 1998 with sexually molesting one daughter from 1955 to 1964 and another daughter from 1967 to 1973.
He contended the charges were an after-the-fact punishment, because the time limit for filing most sex charges in California was three years.
The California Supreme Court rejected the same challenge in a separate case in 1998.
Nonetheless, the U.S. Supreme Court took up Stog-ner's appeal, and the justices sounded closely split during Monday's argument.
"The state of California is bound by its laws and its degrees. And we have a vested right to be free from prosecution and punishment" after the time limit has expired, said Roberto Najera, a public defender from Martinez, Calif., who represents Stogner.
"This court should hold the state to the bargain it made."
But Janet Gaard, an assistant attorney general from Sacramento, said the state had not changed the crime or the punishment for it.
"This does not criminalize conduct that was innocent when it was done," she said. Stogner knew his abuse of his daughter was a crime in 1955 or in 1967, Gaard said. He had "a fair warning," she said, so the state has not reneged on a bargain.
Four liberal justices -- Ruth Bader Ginsburg, David H. Souter, John Paul Stevens and Stephen G. Breyer -- voiced skepticism about the state's case.
"This is reviving a dead case," Ginsburg commented. "And you are making an across-the-board argument," she added, not limited to crimes against children.
While the state law reopened cases involving past crimes against children, its legal brief argued that the government could reopen past criminal cases of all sorts without violating the ex post facto ban.
Bush administration lawyers joined the case on California's side, arguing that Congress too can revive old cases by repealing the time limits.
Breyer said he was taken aback by this claim.
"I had thought this was absolutely contrary to the Constitution. What has changed?" he asked.
A Justice Department lawyer replied that the high court had never said it was unconstitutional to reopen cases after the time for prosecution had expired.
Stevens said that was so because it was presumed to be unconstitutional. "Is there any precedent of this court that supports this view?" he asked, referring to California's argument.
No, the government lawyer acknowledged.
However, Chief Justice William H. Rehnquist and his conservative colleagues disputed the public defender's claims.
"We have to take state law the way it comes to us, and the California Supreme Court didn't see it" as increasing the punishment for a past crime, Rehnquist said.
Because the state is not creating a new crime or increasing the punishment for an old crime, the repeal of the time limits does not violate the ex post facto principle, he suggested.
California has no time limit for bringing charges of murder, embezzlement of public funds and a few other crimes that carry a life prison term. But most felonies must be charged within three years.
These statutes of limitation are intended to help police and prosecutors deal with fresh cases. They also protect defendants from being accused of crimes years after the fact, when it might be hard to find evidence or witnesses to rebut the charges.
But these time limits also meant the sexual abuse of children often went punished. That concern prompted the 1994 repeal.
The case is Stogner vs. California, 01-1757.
In the second case debated Monday, the court struggled to clarify when state and county police can enforce the law on Indian reservations.
Generally, state police can go after individuals for crimes, including on reservations, but the tribes and their operations are shielded by the doctrine of "tribal sovereignty."
But sometimes, the line between the two is unclear.
Three years ago, Inyo County prosecutors believed three workers at a tribal casino in Bishop were welfare cheats.
They asked the tribe for its payroll records and were turned down. Then, armed with a search warrant, they raided the reservation, cut the locks in a storage room and seized the records.
The tribe sued, and last year the U.S. 9th Circuit Court of Appeals ruled that the prosecutors could be held liable for violating tribal sovereignty.
"This could have disastrous consequences," said John Kirby, a lawyer for the Inyo prosecutors. State and county police need to be able to enforce the law, he said.
But a lawyer for the tribe, backed by the Justice Department, said its sovereignty should be respected.
The justices said they were searching for a narrow way to resolve the case, perhaps by ruling that commercial records can be seized.
"This [casino] was a commercial operation, not the [tribal] government itself," said Justice Antonin Scalia.
The case, Inyo County vs. Paiute-Shoshone Indians, 02-281, will be decided within several months.
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