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ACLU of Nevada v Cortex Masto

UPDATE 2-1-2014: This case is NOT OVER see what is happening now in 2014.

UPDATE 9-15-2012: According to a Sep't 2012 ACLU Memo, this 2008 Injunction has been overturned, so we are keeping this here for documentation of what has happened. See ACLU 2012 Memo for more info(also copied below).

10-7-2008 Nevada:

ACLU of Nevada v Cortex Masto
719 F.Supp.2d 1258 (2008)

On September 10, 2008, a hearing was held before Hon. Judge James C. Mahan on Plaintiffs' Motion for Summary Judgment. Appearing for plaintiffs the American Civil Liberties Union and Does 1 through 8 were Margaret McLetchie and Allen Lichtenstein. Robert Langford appeared for Plaintiffs Does A through S. Binu Palal and Kimberly Buchanan appeared for defendants.

Plaintiffs filed their complaint on June 24, 2008, requesting that this court declare A.B. 579 and S.B. 471 unconstitutional and to issue an injunction prohibiting the enforcement of changes to various N.R.S. provisions to be modified by the implementation of A.B. 579 and S.B. 471. Plaintiffs stated several causes of action, including that the laws violated:
(1) Procedural Due Process under the U.S. Constitution;

(2) the Ex Post Facto Clause under the U.S. Constitution;

(3) the Double Jeopardy Clause under the U.S. Constitution;

(4) the Contracts Clause under the U.S. and Nevada Constitutions;

(5) the Separation of Powers under the Nevada Constitution; and

(6) the prohibition against Vague and Ambiguous laws under the U.S. Constitution.
... ... ...

In July of 2007, the Nevada Legislature passed A.B. 579 which mandated that its restrictions, notification provisions, and potential criminal penalties apply retroactively, not just to pedophiles, but to anyone who has committed any offense that involves "any sexual act or sexual conduct with another"—no matter how minor the sexual offense was—and to offenses committed as long ago as July 1, 1956. In July of 2007, the Nevada Legislature also passed S.B. 471, which imposed G.P.S. monitoring and movement and residency restrictions on certain sex offenders. Plaintiffs submitted declarations, uncontroverted by the defendants, making clear that the Parole and Probation Department was applying S.B. 471's provisions retroactively.

Together, A.B. 579 and S.B. 471 redefine who is considered a "sex offender," the way in which sex offenders are classified and monitored, and what restrictions apply to which sex offenders. Prior to the enactment of these laws, sex offenders had been individually assessed and classified based on psychological assessments focusing on whether the offenders pose a risk to society and are likely to re-offend. The statutes mandated that sex offenders would henceforth be automatically classified based on one factor, the crime committed. Because of the changed standards, numerous people: (1) whose crimes were committed in the distant past; (2) who have been determined by the state of Nevada to be unlikely to re-offend; and (3) who have complied with the law, attended counseling, and who have not committed additional crimes would be thrown back into the system or be subject to more onerous monitoring and residency requirements.

A.B. 579 and S.B. 471 do not provide any procedural due process protections, leaving even people who believe that they have been miscategorized as sex offenders with no means to challenge the application of A.B. 579 and S.B. 471.
The application of these laws retroactively is the equivalent a new punishment tacked on to the original sentence—sometimes years after the fact—in violation of the Ex Post Facto and Double Jeopardy Clauses of the U.S. Constitution, as well as the Contracts clauses of the U.S. and Nevada Constitutions. Moreover, because they do not provide any procedural protections from their retroactive application, A.B. 579 and S.B. 471 violate the Due Process Clause of the U.S. Constitution.

For these reasons, the Court hereby grants Plaintiffs' Motion for Summary Judgment, making the June 30, 2008 Preliminary Injunction enjoining the enforcement of A.B. 579 and S.B. 471 a Permanent Injunction.


ACLU Letter (to preserve):

Ninth Circuit Rules on Nevada's Sex Offender Laws

September 10, 2012

The battle over the changing face of laws concerning sex offenders in Nevada seems to have come to an end. The ACLU of Nevada has been working on protecting the rights of convicted offenders since the passage of Assembly Bill 579 and Senate Bill 471 during the 2007 legislative session.

A.B. 579 and S.B. 471 drastically changed how Nevada deals with sex offenders. A.B. 579 retroactively changed the categorization of sex offenders, so regardless of the crime, offenders who committed misdemeanors with any sexual element since July 1, 1956 would fall within the purview of registration and some notification requirements. Many rehabilitated, low risk offenders whom the state of Nevada determined were unlikely to re-offend could be retroactively classified as "high risk" offenders based solely on their conviction. Prior to the enactment of these laws, sex offenders had been individually assessed and classified based on psychological evaluations focusing on whether the offenders pose a risk to society and are likely to re-offend. S.B. 471 prohibited some offenders from “knowingly being” within 500 feet of certain locations, and was also being applied retroactively.

In 2008, the ACLU of Nevada filed suit against the implementation of these laws, and in April 2012, the Ninth Circuit Court of Appeals issued a ruling in the case. The Ninth Circuit upheld A.B. 579 as constitutional, including its retroactive application. The permanent injunction issued by the District Court in 2008 was lifted and A.B. 579 has gone into effect. However, the Ninth Circuit stated that the laws concerning certain residency requirements cannot be applied retroactively, and has upheld the injunction against S.B. 471.

This case was fundamentally about the limits on the power of government to impose sweeping retroactive punishment. The ACLU was concerned that if the Nevada legislature was allowed to impose laws retroactively in this context, it could pass other laws that take effect retroactively, violating the Constitution.

The ACLU continues to monitor and fight against the imposition of laws like these. Even though the outcome of this important case was not completely what we had hoped, it is encouraging to know that our efforts do not go unnoticed and the mission of the ACLU of protecting the rights of all Nevadans continues to be successful.

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