NEW: (# Failure to Register Technicality
NEW: Failure to Register a Sex Offense???
CAUTION: SORNA EFFECTIVE even if state has not enacted it
Plea Bargains: Santabello v New York
Forced to Carry Gov't Message Issue: See HERE
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Moe v Sex Offender Registry Board

3-26-2014 Massachusetts:

Moe v Sex Offender Registry Board

On July 12, 2013, the Governor signed into law various amendments to G.L. c. 6, §§ 178C-178Q, the sex offender registry law (SORL), including amendments that would require the Sex Offender Registry Board (SORB) to publish on the Internet information contained in the sex offender registry (registry information) regarding all individuals given a level two or level three classification by SORB. See St.2013, c. 38, §§ 7, 9.

Before these amendments were enacted, § 178D required SORB to publish on the Internet the registry information of sex offenders given a level three classification, but expressly prohibited SORB from publishing on the Internet the registry information of level two offenders.

The issues presented are whether the amendments are retroactive in effect "for the purposes of further constitutional inquiry," as applied to those who were classified as level two offenders on or before the date of the amendments' enactment, see Doe, Sex Offender Registry Bd. No. 8725 v. Sex Offender Registry Bd., 450 Mass. 780, 787 (2008) (Doe No. 8725 ); whether the Legislature intended that they apply retroactively; and, if so, whether their retroactive application would violate due process under the Massachusetts Declaration of Rights.

We conclude that the amendments are retroactive in effect as applied to level two offenders who were classified on or before the date of the amendments' enactment and that the Legislature intended such retroactive application, but that such retroactive application would violate State constitutional due process.

... ... ...

Conclusion.

We declare unconstitutional the retroactive application of the amendments to G.L. c. 6, §§ 178D and 178K, that became effective on July 12, 2013, to the extent they would require the Internet publication of the registry information of individuals who were finally classified as level two sex offenders on or before July 12, 2013.

The matter is remanded to the county court for entry of an order allowing the plaintiffs' motion for class certification and permanently enjoining SORB from publishing on the Internet the registry information of any individual who was finally classified as a level two sex offender on or before July 12, 2013, unless the individual is subsequently reclassified a level two or level three sex offender.

Nothing in this order affects the ability of SORB to publish on the Internet the registry information of any individual who was given a final classification as a level two sex offender after July 12, 2013.

So ordered.




Mass. court says sex offender law not retroactive

The state’s highest court has ruled that Massachusetts cannot retroactively post information about thousands of registered sex offenders on the Internet.

The ruling on Wednesday came in response to a challenge to a law passed last July that allowed the state to add Level 2 sex offenders to its online database. The state’s Sex Offender Registry had previously been allowed to make information available online only about Level 3 sex offenders, those considered most dangerous and most likely to re-offend.

The Supreme Judicial Court did not strike down the new law, but ruled that it could not apply retroactively to sex offenders who had been classified as Level 2 prior to July 2013.

The court said its ruling would affect about 6,200 Level 2 sex offenders. ..Source.. by Boston.com

Doe v Virginia

4-12-2013 Virginia:

Doe v Virginia
713 F.3d 745 (2013)
(See text amendment)
(U.S. Sup court denied the appeal filed of this decision. see story below.)

Jane Doe brought a challenge to Va. Code sections 9.1-900 et seq. and 18.2-370.5, which, together, classify her as a sexually violent offender and prevent her from entering the grounds of a school or daycare without first gaining permission from a Virginia circuit court and the school board or the owner of the daycare. She also challenged the policy of the Spotsylvania County School Board (the "Board"), which she alleges does not allow her to petition anonymously for entry onto school property.

The district court dismissed all but one of her claims on the grounds that they were unripe and that she lacked standing. It determined that her remaining claim failed to allege grounds upon which relief could be granted, and dismissed it under Federal Rule of Civil Procedure 12(b)(6).

Doe's complaint includes four counts:
  • she alleges that the defendants have violated her substantive due process,
  • procedural due process,
  • associational, and
  • free exercise rights.

The injuries she alleges with respect to the first, third, and fourth of these counts stem from impediments the Virginia statute and the Board policy place on her ability to access school and church property.

However, because she has not yet attempted to undertake the requisite steps to access these properties, she cannot demonstrate that these claims are justiciable at this juncture.

One component of her second count, her challenge to the law stemming from an alleged denial of procedural due process, on the other hand, is justiciable.

However, she fails to state a procedural due process claim upon which relief may be granted.

Accordingly, we affirm the district court's dismissal of her claims.




US Supreme Court Declines to Hear Sex Registry Case

3-24-2014 Washington DC, Virginia:

The Supreme Court has declined to take up the case of a Virginia woman who claims the state's sex offender registry law is unconstitutional.

The woman was reclassified as a violent sex offender 15 years after being convicted of unlawful sex with minor in a case that did not involve any violence. The reclassification subjects her to a ban on entering her children's schools without first seeking permission from state courts and the local school board.

The woman was identified only as Jane Doe in court records. She says the process unfairly risks revealing her children's identity and could take years to resolve.

Lower courts had rejected her case on procedural grounds, saying she failed to first exhaust state remedies. ..Source.. by ABC News

People v Douglas M

10-24-2013 California:

People v Douglas M

Douglas M. appeals from an order modifying his probation, pursuant to amended Penal Code section 1203.067,1 which sets forth various new probation conditions for registered sex offenders.2 Because the presumption of prospectivity of Penal Code statutes, mandated by section 3, cannot be rebutted, we conclude that the provisions of revised section 1203.067 may not be applied retroactively to change the terms and conditions of probation for probationers who committed their offenses before the effective date of the amendment. As appellant‟s offenses occurred well before that date, the trial court improperly modified the terms and conditions of his probation to include the new provisions.

... ... ...

In sum, there is nothing in either the language of the statute or its legislative history clearly indicating a legislative intent for revised section 1203.067 to be applied retroactively to probationers whose crimes occurred before its effective date. (See Brown, supra, 54 Cal.4th at pp. 319-320; Alford, supra, 42 Cal.4th at p. 754.) Moreover, to construe the statute as applying to those probationers would raise serious constitutional questions under the federal and state ex post facto clauses. Therefore, in keeping with the mandate of section 3, the amended statute must be viewed as “unambiguously prospective,” applying to probationers who committed their crimes on or after the statute‟s effective date of September 9, 2010. (See Brown, at p. 320.) Because appellant‟s offense occurred before September 9, 2010, the provisions of revised section 1203.067 were improperly applied to him and must be stricken.6

DISPOSITION

The judgment is modified to strike the new terms and conditions of probation imposed on appellant pursuant to amended section 1203.067. As so modified, the judgment is affirmed.



Additional Counseling Not Required For Some Registrants

3-19-2014:

The California Supreme Court has denied review of a case thereby relieving some registered citizens from the duty to participate in a state-mandated sex offender management program. Specifically, as a result of the Supreme Court’s denial, registered citizens currently on probation whose sex offense occurred prior to September 10, 2010, are not required to complete a sex offender management program mandated by Penal Code Section 1203.067(b).

The Supreme Court’s decision lets stand the decision of the Court of Appeal in the case People v. Douglas M. which was decided on October 24, 2013. The case was appealed shortly thereafter.

“This is an important decision for registrants whose offenses occurred prior to September 10, 2010,” stated CA RSOL President Janice Bellucci. “No longer will they be required to participate in an expensive and intrusive program.”

The Supreme Court’s decision was issued on January 21, 2014. ..Source.. by CA-RSOL

Northwest Sex Offender Faces Resentencing

3-17-2014 Washington:

A challenge to federal sex-offender registration requirements (USA v Cabrera-Gutierrez) based on the Supreme Court's support of the new health care reform law failed to convince the 9th Circuit.

Pedro Cabrera-Gutierrez, who spent three years in prison for having sex with an intoxicated 15-year-old in 1998, had argued that Congress lacked the power to force him register as a sex offender across state lines because it was an "unconstitutional regulation of his inactivity" under the high court's ruling in National Federation of Independent Business v. Sebelius, the 2012 decision that found key provisions of Obamacare constitutional.

More than a decade after he served his original sentence, police in Yakima, Wash., charged Cabrera with failing to register under the Sex Offender Registration and Notification Act (SORNA).

A federal judge eventually sentenced Cabrera to a further 17 months behind bars and three years of supervised release. The 9th Circuit issued an appellate ruling in the case in June, but later withdrew it in favor of a panel rehearing. A divided three-judge panel issued a new ruling on Monday, affirming dismissal of Cabrera's registration challenge.

"Unlike Sebelius, SORNA does not regulate individuals 'precisely because they are doing nothing,'" Judge A. Wallace Tashima wrote for the panel. "SORNA applies only to individuals who have been convicted of a sexual offense. Thus, registration is required only of those individuals who, through being criminally charged and convicted, have placed themselves in a category of persons who pose a specific danger to society. Moreover, SORNA's application to Cabrera is based on his further admitted activities of traveling in interstate commerce and then failing to register. Thus, SORNA does not punish the type of inactivity addressed in Sebelius."

A.A. v New Jersey

Research into this 2001 case is ongoing, so be aware of that until further notice which we will post here when research is done.

12-6-2001 New Jersey:

A.A. v New Jersey

The litigation before the Court is the most recent constitutional challenge to New Jersey's "Megan's Law." Plaintiffs, all of whom have been convicted of sex offenses in New Jersey and are subject to registration and community notification pursuant to N.J.S.A. 2C:7-1 et seq. (collectively referred to as "Megan's Law"), instituted this suit on October 15, 2001 challenging the constitutionality of Article IV, Section 7, Paragraph 12 of the New Jersey Constitution and recent amendments to Megan's Law authorizing the development and maintenance of "a system for making certain information in the central registry ... publicly available by means of electronic Internet technology." P.L.2001, Ch. 167 (codified at N.J.S.A. §§ 2C:7-12 to - 19) (hereinafter referred to as the "Internet Registry Act").

Soon after filing an initial complaint, Plaintiffs submitted an application for preliminary injunctive relief seeking to prevent the implementation of New Jersey's Internet sex offender registry, which is statutorily authorized to become effective on January 1, 2002. P.L. 2001, c. 167 § 10.1

For purposes of this motion, Plaintiffs' claims can be divided into two categories.
  • First, Plaintiffs allege that the Internet Registry Act, by allowing unlimited public access to certain information collected pursuant to Megan's Law's registration provisions, violates their constitutional right to privacy in: (1) their home addresses; and (2) the totality of the information assembled and posted in the Internet sex offender registry.
  • Second, Plaintiffs contend that the retroactive application of the Internet Registry Act to those members of the plaintiff class whose underlying sex offense was committed prior to the law's enactment violates the Ex Post Facto and Double Jeopardy Clauses of the United States Constitution.2

For the reasons stated below, the Court will grant, in part, and deny, in part, Plaintiffs' motion for preliminary injunctive relief.

... ... ...

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION FOR A PRELIMINARY INJUNCTION OF THE INTERNET REGISTRY ACT, N.J.S.A. §§ 2C:7-12 — 19

This matter having appeared before the Court upon Plaintiff's motion for a preliminary injunction, and the Court having reviews the submissions of the parties and having heard oral arguments, for the reasons set forth in an opinion issued by this Court, which findings of fact and conclusions of law are incorporated herein by reference, and for good cause appearing,

IT IS on this 6th day of December, 2001,

ORDERED THAT: Plaintiffs' motion for a preliminary injunction preventing the implementation of P.L. 2001, ch. 167 (codified at N.J.S.A. §§ 2C:7-12 to -19) is DENIED provided that the Internet Registry MUST EXCLUDE information identifying the home or apartment number, street, zip code, and municipality in which Plaintiffs' reside.



As to "Home Addresses" see also Schiller v INS

Lawyer loses bid to end sex offender status

In 2013 People v Tirey the court declared it was unconstitutional to deny these Certs to qualified applicants, ruling prior law --mentioned below-- unconstitutional.

7-27-2011 California:

People v Oberstein

Appellate court affirms OC judge’s rejection of attempt by former L.A. public defender to clear name.

SANTA ANA – A panel of appellate justices has sided with an Orange County judge in denying a former Los Angeles public defender's bid to stop registering as a sex offender.

The panel ruled, however, that the judge erred in forcing Chance Xcaliber Oberstein to wait another two years to seek a so-called certificate of rehabilitation, which if acquired would free him from having to register as a sex offender.

Oberstein was convicted in 1998 of having unlawful sex with a 16-year-old girl he met while working for the Los Angeles Public Defender's Office. The girl was a client of the office, but not represented by Oberstein.

The sexual contact occurred in 1996, when Oberstein was 38. The convictions - for unlawful sexual intercourse, sodomy and oral copulation – yielded a one-year jail sentence and probation, prompting Oberstein to resign from the state bar.

In June 2001, Los Angeles Superior Court granted early termination of probation and, in September 2003, Oberstein's convictions were reduced to misdemeanors. In June of 2004, his guilty verdict was set aside and, in 2008, the state bar reinstated him as an attorney.

A certificate of rehabilitation is a court-issued recommendation to the governor to pardon a convicted felon and release the petitioner from certain requirements stemming from the conviction. The standard for receiving a certificate of rehabilitation is high.

State v IT

3-12-2014 Indiana:

State v I.T.

I.T., who admitted to conduct that would be a Class B felony child molesting if committed by an adult, was ordered by the trial court to undergo therapeutic polygraph examinations. During one of those exams, I.T. admitted to molesting two other children.

Based on those statements, the State filed a new delinquency petition. I.T. moved to dismiss the petition, arguing that the Juvenile Mental Health Statute, which bars a child’s statement to a mental health evaluator from being admitted into evidence to prove delinquency, barred the State’s evidence.

The trial court granted the motion. The State appealed.

The Supreme Court affirmed, holding (1) the State may appeal a juvenile court order that suppresses evidence if doing so terminates the proceeding; and (2) the Statute’s limited immunity prohibits both use and derivative use of a juvenile’s statements to prove delinquency.

State court tosses out sex offender's conviction

3-1-2014 Massachusetts:

The state's highest court this week reversed the conviction of a Level 3 sex offender for failing to register as a sex offender after the justices ruled there was insufficient evidence to prove he was living at his aunt's home in Lowell and not in the homeless shelter.

In a decision issued on Thursday, the state Supreme Judicial Court overturned a judge's 2011 ruling that Jose Armando Arce was guilty of failing to register as a sex offender. The judge had sentenced Arce to one year in a house of correction and lifetime community parole.

While the jail sentence may have been completed, the lifetime parole is vacated.

Laurie Myers, of the Chelmsford-based Community Voices advocacy group, said, "It has always been difficult to prove a homeless offender failed to register, but it looks like the SJC made it a little more difficult. Yet another way for sex offenders to manipulate the system."

Arce, 44, who lists his address at 260 Middlesex St., was convicted in 2006 of indecent assault and battery on a child under 14. He was convicted in 2012 of indecent assault and battery on a person 14 or older.

He was arrested by Lowell police on July 20, 2010 and charged with failing to notify police of a change of address as required under the sex offender law.