By: Orange County Supervisor Todd Spitzer
On Friday, September 27, Supervisor Todd Spitzer traveled to Sacramento to testify at the Commission on State Mandates. The Commission was reviewing a Redetermination Request filed by the State Department of Finance (DOF) that challenges the State reimbursement to counties for the prosecution, defense, and jail costs for Sexually Violent Predators. The DOF had challenged the reimbursement of the SVP Mandate on the grounds that Proposition 83 – known as “Jessica’s Law” and passed in 2006, constituted a “subsequent change of law.” Supervisor Spitzer strongly urged the Commission to still require the State to reimburse SVP costs. Four of the seven commissioners voted to end the reimbursement to counties.
“Jessica’s Law was passed by the Legislature and then was subsequently confirmed by the voters. If the Legislature passes an unfunded mandate, the State must reimburse counties. Several Commissioners argued that it’s no longer an unfunded mandate because the voters passed it,” Supervisor Spitzer said. “The Commission vote sets a dangerous precedent because there is now no longer anything stopping legislators from launching ballot initiatives not to gain changes in state law, but rather to simply reconfirm state law while removing the State’s obligation to reimburse local government for unfunded mandates.”
This debate stems from the DOF’s interpretation of Jessica’s Law and its impacts. The Sexually Violent Predators Act (SVPA) was created by the Legislature and signed into law by Governor Pete Wilson in 1995. The SVPA established civil commitment procedures for the continued detention and treatment of sexually violent offenders following their completion of a prison term for certain sex-related offenses. In 1998, the Commission on State Mandates issued a Statement of Decision approving reimbursement to local governments for costs associated with implementing the SVPA.
In a 2005 letter from then-Legislative Analyst Elizabeth Hill and then-Director of Finance Tom Campbell to then-Attorney General Bill Lockyer regarding Jessica’s Law, they stated several times that the State would “reimburse counties for their costs for participation in the SVP commitment process.” The same letter further goes on to state that, “The provisions related to the SVP program could also result in county savings and costs, with these costs subsequently being reimbursed by the state.” The letter further states, “The provisions of this measure related to the SVP program could increase county costs…Counties would be reimbursed in full for all of these costs after they had filed and processed claims with the state.”
In September 2006, the Legislature amended the SVPA via SB 1128. These amendments mainly conformed to a then-pending ballot initiative, Proposition 83, known as “Jessica’s Law.” This proposition was designed to enhance public safety by toughening laws on sex offenders. Ensuring that local governments have enough resources to deal with these predators is absolutely vital to the mission of Jessica’s Law. Proposition 83 won 71% of the vote statewide in November 2006, with 75% of Orange County voters casting their ballots for it. Jessica’s Law passed in 57 out of California’s 58 counties, failing only in San Francisco County by a close 47.5%-52.5% margin.
Nothing in Proposition 83 altered the laws or the duties on local entities that were imposed by existing SVP laws that were previously determined to be reimbursable costs pursuant to the Commission’s 1998 decision. Jessica’s Law did not constitute a new program or a higher level of service for the sexually violent predators program. Seven years later, the DOF has filed a retroactive redetermination to challenge the State’s reimbursement of SVPA on the grounds that Proposition 83 created a “subsequent change in law.”
SB 1128 and subsequently, Proposition 83 (Jessica’s Law), did not change the funding structure or reimbursement properties of the initial legislation that created the SVPA program. The DOF is using the Redetermination Process to retroactively challenge such state mandates as the SVP. The Redetermination Process can be initiated by the DOF if they can show a “subsequent change of law.” However, Jessica’s Law was not a subsequent change of the SVP program.
Three Orange County agencies utilize SVP reimbursement funds in order to perform this State-mandated program: the District Attorney’s Office, the Public Defender, and the Sheriff’s Department. The collective annual reimbursement claims from these three agencies have ranged from $1.1 million to $2.5 million per year.
This is not a uniquely Orange County problem. Counties across the state need this reimbursement to carry out the will of the voters in protecting public safety by controlling these sexually violent predators. The California State Association of Counties, the California District Attorneys Association, and the California Public Defenders Association are all opposed to this effort to end State reimbursement for the SVP program, as are Orange County’s neighbors in Los Angeles County, San Bernardino County, and San Diego County.
Jessica’s Law author George Runner wrote to the Commission opposing the effort to end the State reimbursement, noting that the will of the voters is being turned on its head because lack of reimbursement will severely restrict the ability of counties to enforce the will of the voters. The lack of SVP reimbursements will affect the ability of counties to prosecute those that are sexually violent predators. Lack of funds will dilute the stringency of the application of the law upon these crimes.
This lack of reimbursement for SVP combined with other hits and shortfalls that the counties are facing currently in the criminal justice arena are important to note. For instance, in Orange County for FY 2012-2013, there was a $10.9 million shortfall in AB 109 inmate realignment to the OC Sheriff’s Department alone.
Supervisor Spitzer continues to advocate for the retention of much needed State public safety funds.