Luster v. State ex rel. Dept. of Corrections

11-21-2013 Oklahoma:

Luster v. State ex rel. Dept. of Corrections

NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. (We will remove this when the final decision is posted)

Plaintiff/Appellee, Christopher Luster, a sex offender, filed a Petition for Temporary and Permanent Injunction, Temporary Restraining Order, and Declaratory Relief to enjoin the Defendant/Appellant, The State of Oklahoma ex rel., Department of Corrections, from enforcing the Sex Offenders Registration Act, 57 O.S., § 581 et seq., against him.

The trial court consolidated this case with those of other plaintiffs filing similar actions and granted a permanent injunction to all the consolidated plaintiffs.

We affirm in part and reverse in part and remand for further proceedings consistent with this opinion.

... ... ...

Conclusion:

We therefore affirm the trial court's Order which held legislative enactments or amendments to SORA cannot be applied retroactively to the plaintiffs.

We reverse the trial court's application of a blanket one-year registration frequency to all consolidated plaintiffs who were not immediately removed from the registry.

We remand the matter to the trial court for a determination of the correct registration provisions for each of the consolidated plaintiffs in light of our holdings in Starkey and Cerniglia, supra. The record herein is silent as to the individual consolidated plaintiffs' factual circumstances, with the exception of Luster.

Therefore, we cannot make a determination as to which specific provisions of SORA would apply to each individual consolidated plaintiff.

On remand the trial court is directed to review the individual consolidated plaintiffs' cases in order to determine the applicable versions of SORA for each of the plaintiffs consistent with our holdings.

Man disputes Megan’s Law registration

9-24-2012 Pennsylvania:

WILKES-BARRE – A man who says he should be excluded from registering under Megan’s Law after pleading guilty to a corruption of minors charge will not have to – for now — a county senior judge said Tuesday.

Traian Jovanov, 28, with a last known address of Pine Street, Hazleton, said in court papers last month that his plea agreement did not include the specification that he needs to register under Megan’s Law while out of prison, and therefore should not have to.

Jovanov is on probation and residing in Luzerne County, according to court papers.

In March 2007, Jovanov was sentenced to 40 to 80 months in prison on an unrelated escape charge and two years house arrest on the corruption of minors charge.

Police said Jovanov had inappropriate contact with a juvenile female in April 2006. He was originally charged with a number of crimes, include rape and indecent assault.

In the escape case, investigators say Jovanov was serving a sentence on drug and receiving stolen property charges at the Luzerne County Correctional Facility in March 2006 and was on work release.

Investigators said Jovanov did not return to the prison after completing a work shift.

Jovanov’s attorney, Tom Marsilio, said in court papers that nothing at the time required his client to register under Megan’s Law, but that now the county probation office is requiring Jovanov to do so.

After a hearing Tuesday, county Senior Judge Chester Muroski said Jovanov’s requirement to register is put on hold until the outcome of an appeal determining those specific issues in the case. ..Source.. by Sheena DeLazio

People v Haynes

9-23-2008 Michigan:

People v Haynes
Docket No. 277185.

Defendant pleaded no contest to a charge of committing the “ abominable and detestable crime against nature” with a sheep.  MCL 750.158.   The trial court sentenced defendant as a fourth-offense habitual offender, MCL 769.12, to 30 to 240 months' imprisonment.   In addition, the trial court found that defendant's actions indicated sexual perversion, so the court ordered defendant to register under the Sex Offenders Registration Act (SORA), MCL 28. 721 et seq.   This Court initially denied defendant's delayed application for leave to appeal,1 but our Supreme Court, in lieu of granting leave to appeal, remanded this case to this Court for consideration as on leave granted.   People v. Haynes, 477 Mich. 1067, 728 N.W.2d 868 (2007).   Defendant only appeals the propriety of the trial court's order requiring him to register as a sex offender.   We vacate the part of the trial court's order requiring defendant to register as a sex offender because the SORA does not apply to the portion of MCL 750.158 that prohibits bestiality.

... ... ...

The prosecution also advances a policy argument in support of its contention that bestiality is within the catchall “listed offense” provisions of the SORA.   Specifically, the prosecution argues, “It is unlikely that many people would not find the defendant's behavior disturbing, to the extent that it could endanger the ‘health, safety, morals, and welfare of the people, and particularly the children, of this state,’ ” quoting the Legislature's stated intent of the SORA in MCL 28.721a.   Our job, however, is to enforce the clear and unambiguous terms of the statute as written.  People v. Gardner, 482 Mich. 41, 50, 59, 753 N.W.2d 78 (2008);  Morey, supra at 330, 603 N.W.2d 250.   If the Legislature chooses to amend or revise MCL 28.722(e)(ii ) to require an individual to register as a sex offender for violating MCL 750.158 by sexually assaulting an animal, it may.   Gardner, supra at 59-60, 753 N.W.2d 78.   But this Court may not make the policy choice to require registration as a sex offender for the type of offense in the instant appeal.

We vacate that part of the trial court's order requiring defendant to register under the SORA.   We do not retain jurisdiction.

Doe v Tandeske

3-17-2004 Alaska:

Doe v Tandeske
No. 99-35845.

This is the second time this case has been before this court. See Doe v. Otte, 259 F.3d 979 (9th Cir.2001), rev'd and remanded, Smith v. Doe, 538 U.S. 84, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003). The first time, we overturned the district court's grant of summary judgment to the State and held that Alaska's sex offender registration and notification statute, 1994 Alaska Sess. Laws 41, violated the Ex Post Facto Clause as to plaintiffs who were convicted of crimes before the enactment of the statute. Otte, 259 F.3d at 979. Our resolution of the Does' ex post facto claim made it unnecessary for us to decide at that time whether the Act violated plaintiffs' procedural and substantive due process rights. Id. at 982. However, the subsequent reversal of Doe v. Otte by the Supreme Court in Smith v. Doe now requires us to address those claims. The facts and the discussion of the relevant statutory provisions are set forth in Doe v. Otte, and accordingly, we proceed directly to our analysis.

... ... ...

While fundamental liberty interests require that any state infringement of these rights be "narrowly tailored to serve a compelling state interest," state actions that implicate anything less than a fundamental right require only that the government demonstrate "a reasonable relation to a legitimate state interest to justify the action." Glucksberg, 521 U.S. at 722, 117 S.Ct. 2258 (emphasis added). As the Court has already determined in Smith, the statute's provisions serve "a legitimate nonpunitive purpose of `public safety, which is advanced by alerting the public to the risk of sex offenders in their community.'" Smith, 538 U.S. at 102-03, 123 S.Ct. 1140. Moreover, the Court held, the "broad categories" of offenses differentiated in the Act and the "corresponding length of the reporting requirement, are reasonably related to the danger of recidivism, and this is consistent with the regulatory objective." Id. at 102, 123 S.Ct. 1140. Thus, although the Does possess liberty interests that are indeed important, Smith precludes our granting them relief.
Because we do not believe that Glucksberg and Smith permit us to reach any other result in this case, we conclude that the Alaska law does not violate the Does' rights to substantive due process.

III

For the foregoing reasons, we AFFIRM the district court's entry of summary judgment for the State.

Doe v Otte

This case was ultimately overturned by the US Supreme court.

4-9-2001 Alaska:

Doe v Otte
No. 99-35845. (See Amended)

This case involves an extremely sensitive and difficult question, both from a social and legal standpoint. How may society deal with convicted sex offenders after they have been punished for their crimes? How can society protect itself against future offenses and at the same time safeguard the constitutional rights of persons who have fully paid the price imposed by law for their crimes? The issues treated in the Alaska Sex Offender Registration Act we consider here differ only in degree from a host of other issues the citizens of this country regularly face in trying to resolve the inherent tensions between safety and freedom that exist in any democracy.

As it turns out, we can decide the case before us without having to resolve the most fundamental question posed by the Alaska statute: that is, in light of the fundamental liberty interest protected by the Due Process Clause, may rehabilitation, or a judicial determination of lack of future risk, be wholly ignored when imposing restrictive requirements and obligations on persons who have committed a sexual offense and been fully punished for 836*836 their crimes? Instead, we base our decision on a far narrower constitutional provision, the Ex Post Facto Clause.

... ... ...

IV. CONCLUSION

We conclude that the Alaska Sex Offender Registration Act violates the Ex Post Facto Clause. We therefore REVERSE the district court's orders granting summary judgment for the state officials, and REMAND for further proceedings not inconsistent with this opinion.

REVERSED AND REMANDED.

Czyzewski v New Hampshire Department of Safety

6-7-2013 New Hampshire:

Czyzewski v New Hampshire Department of Safety (PDF Copy)

In Czyzewski v. New Hampshire Department of Safety, decided today, the Court provided a classic example – and a very defensible example – of how Courts will literally ignore the language of a statute in order to reach a desired result.

Czyzewski tried to induce a 13 year old who he met on the internet to engage in sexual activity with him – a serious sex crime. It is a serious crime, even though there was no 13 year old. The “child” was a police officer engaged in a sting operation, chatting away online and pretending he was a sexually-vulnerable 13 year old.

After conviction for the crime of attempted sexual assault, the State of New Hampshire ordered defendant to register as a sex offender. Czyzewski fought this Order in Court, seeking a declaratory judgment that he did not have to register because the registration statute required sex offender registration for the crime of sexual assault only “‘where the victim was under [the age of] 18 at the time of the offense.” Czyzewski argued that because there was no victim, but rather an adult police officer who was not under the age of 18, he should not have to register under the plain language of the statute.

The unanimous Court disagreed, essentially ignoring the language of the statute, based on the reasoning that the legislature could not possibly have meant what it said because the legislature also criminalized attempt crimes that do not involve any actual victim.

The Court, in my opinion, is right. Contrary to the view of Justice Scalia that Courts should limit themselves to so-called “textual” analysis… and contrary to the famous and simplistic claim of Chief Justice Roberts that Judges merely “call balls and strikes” … Courts have a difficult job. Courts must determine the intent of the legislature in enacting a law. Courts must use their judgment, not just mindlessly adhere to the “plain language” of a law, because legislative bodies cannot possibly anticipate every fact pattern that might arise in the future. In this case, the Court’s decision is sensible and without doubt adheres to the legislative intent in enacting the sex offender registry law, even if it strays from the literal language the legislature chose. ..Source.. by Ted Lothstein.

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NH court says convicted sex offender must register

6-5-2013 New Hampshire:

The New Hampshire Supreme Court says a man convicted of attempted sexual assault must register as a sex offender, rejecting his argument that there wasn’t an actual assault or victim.

Justin Czyzewski, 28, was convicted in October 2009 based on online conversations with an undercover detective he believed to be a 13-year-old girl.

New Hampshire law requires all persons convicted of sex crimes involving victims under age 18 to register as sex offenders wherever they live. Czyzewski now lives in Drexel Hill, Pa., and is listed in that state’s sex offender registry.

Czyzewski appealed the trial judge’s ruling denying his request for a declaration that he does not have to register. The Supreme Court’s unanimously upheld that ruling in its decision released Wednesday.

Czyzewski argued that he doesn’t fall within the registration requirements because his attempt involved a police officer and not an actual child.

The court ruled the law was not intended to give a break to convicts who take ‘‘a substantial step in targeting an ‘actual victim’ but do not complete the crime.’’

‘‘There is no indication in the statute that the legislature intended either to categorize attempt crimes in this way or to benefit a category of manifestly dangerous criminals for no other reason that the fortuitous fact that their intended victims turned out to be undercover police officers,’’ Justice Gary Hicks wrote.

Czyzewski’s lawyer, Philip Desfosses, did not immediately return a call seeking comment. ..Source.. by Boston.com

Doe v DPSCS

Maryland's Ct of Appeals is it's highest ct. and equates to blog's State Sup ct. Hence above labeling.

6-30-2014
Doe II v DPSCS

In Doe v. Department of Public Safety & Correctional Services, 430 Md. 535, 62 A.3d 123 (2013) ("Doe I"), we addressed the Maryland sex offender registration statute, Maryland Code (2001, 2008 Repl. Vol., 2013 Cum.Supp.), § 11-701 et seq. of the Criminal Procedure Article (hereinafter all section references to the Criminal Procedure Article of the Maryland Code are identified as "Crim. Proc. §") and held that the retroactive application of the provisions we deemed punitive violated the ex post facto prohibition contained in Article 17 of the Maryland Declaration of Rights. This Court's plurality opinion in Doe I specifically excluded any analysis of the federal Sex Offender Registration and Notification Act ("SORNA"), Pub.L. No. 109-248, §§ 101-155, 120 Stat. 587, 590-611 (2006) (codified at 42 U.S.C. § 16901 et seq. and 18 U.S.C. § 2250). We stated, "[a]s [Doe's] federal obligations are not before us, we need not, and do not, address the issue of whether they require him to independently register." Doe I, 430 Md. at 544, 62 A.3d at 128.

In the instant appeal,1 however, the State2 asks us to consider sex offenders' "federal obligations" and whether a circuit court has the authority to direct the State to remove sex offender registration information in light of the provisions of SORNA specifically directing sex offenders to register in the state in which they reside, work, or attend school. We shall hold that, notwithstanding the registration obligations placed directly on individuals by SORNA, circuit courts have the authority to direct the State to remove sex offender registration information from Maryland's sex offender registry when the inclusion of such information is unconstitutional as articulated in Doe I.

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3-4-2013 Maryland:
Doe I v DPSCS
No. 125, September Term, 2011.

The Maryland sex offender registration statute, Maryland Code (2001, 2008 Repl. Vol., 2012 Cum. Supp.), § 11-701 et seq. of the Criminal Procedure Article (hereinafter a ll section references to the Criminal Proced ure Article of the Maryland Code are identified as “C.P. §”), requires persons convicted of certain sex offenses to register1 with “the person’s supervising authority.”2

We are asked to determine whether, under this statute, the State can legally require Petitioner to register.

Petitioner argues that requiring him to register as a sex offender:

• (1) violates Petitioner’s right to be free from ex post facto laws purs uant to both the federal Constitution and the Maryland Declaration of Rights, and to be free from ex post facto restrictions pursuant to theMaryland Declaration of Rights;
• (2) violates Petitioner’s due process rights pursuant to both the federal Constitution and the Maryland Declaration of Rights; and
• (3) violates the plea agreement entered into when he pled gu ilty to the underlying crime.

... ... ...

When Petitioner committed his sex crime during the 1983-84 school year he did not face registration under the statute as a consequence for his crime. Registration was imposed, over twenty years later in 2009, under the sex offender registration statute as a direct consequence of Petitioner’s commission and conviction for his sex crime.

The application of the statute has essentially the same effect upon Petitioner’s life as placing him on probation and imposing the punishment of shaming for life, and is, thus, tantamount to imposing an additional sanction for Petitioner’s crime.

Therefore, we conclude that the imposition of the registration requirement up on Petitioner, as the result of amendments passed 25 years a fter Petitioner’s crime, to a statute passed over a decade after Petitioner’s commission of a crime is in violation of the ex post facto prohibition contained in Article 17 of the Maryland Declaration of Rights.

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Doe v DPSCS copy from state.

Lower court case being appealed: MD Special Court of Appeals

People v Mosley

This decision was overturned on 3-2-15 in the appeal People v Mosley. (pg-35 --- Conclusion: The judgment of the Court of Appeal is reversed insofar as it modified defendant‘s conviction by striking the sex offender registration requirement, and is otherwise affirmed.)

9-29-2010 California:
People v Mosley(REVERSED on Appeal)
116 Cal. Rptr. 3d 321q

We revisit defendant Steven Lloyd Mosley, who a jury acquitted of any sexual offense. The jury found him guilty only of misdemeanor assault. Yet the court ordered defendant to register as a sex offender based upon its own factual findings about his motivations—facts not proved beyond a reasonable doubt to the jury.

In a prior opinion, we held the facts supporting imposition of discretionary sex offender registration must be found beyond a reasonable doubt by a jury. Defendant has the right to a jury trial on any facts (other than a prior conviction) that increase his offense's penalty beyond the statutory maximum.

(Apprendi v. New Jersey (2000) 530 U.S. 466, 490 [147 L.Ed.2d 435, 120 S.Ct. 2348] (Apprendi).) The court's imposition of sex offender registration for misdemeanor assault effectively increased the penalty beyond the statutory maximum because of Jessica's Law, The Sexual Predator Punishment and Control Act, approved in 2006 as Proposition 83. Jessica's Law contains a residency restriction that bars registered sex offenders from residing within 2,000 feet of a school or park where children gather. This residency restriction constitutes punishment due to its overwhelmingly punitive effect.

The California Supreme Court directed that we reconsider the matter in light of In re E.J. (2010) 47 Cal.4th 1258 [104 Cal.Rptr.3d 165, 223 P.3d 31] (E.J.), which addressed the imposition of the residency restriction as a parole condition. The Supreme Court held the residency restriction applied prospectively to four registered sex offenders paroled after passage of Jessica's Law. When imposed as a new parole condition on a person who already registered as a sex offender, the residency restriction "does not additionally punish for the [underlying] sex offense conviction . . . ." (47 Cal.4th at p. 1280.) But the Supreme Court had "no occasion . . . to address whether the 2,000-foot residency limit might apply . . . to the thousands of persons subject to sex offender registration who, for whatever reason, are not currently on parole." (Id. at p. 1285 (conc. opn. of Werdegar, J.), citations omitted.) Thus, it did not consider whether the residency restriction constitutes increased punishment for an offense when a trial court imposes discretionary sex offender registration as part of the sentence on that offense.

(1) We leave the substance of the sex offender registration scheme untouched. Courts may impose discretionary sex offender registration; registered sex offenders may be subject to the residency restriction. We hold only that imposing the residency restriction through discretionary sex offender registration as part of the sentencing on the underlying offense increases the penalty for that offense beyond the statutory maximum. Accordingly, the facts supporting the imposition of the registration requirement must be found true by a jury beyond a reasonable doubt. That was not done here, so we modify the judgment by striking the sex offender registration requirement, and affirm.

See Also: Recent Changes in the Law Potentially Beneficial for Clients

Doe v Keathley

6-16-2009 Missouri:

Doe v Keathley
290 S.W.3d 719 (2009)

Note 1-27-2013: There is a good possibility this case was wrongly decided, however until someone challenges it, it will stand a precedent for Missouri sex offenders. AWA has a provision which effectively says: If the state has a Supreme court decision allowing certain registrants to NOT REGISTER because of a conflict with the state's constitution, then they do not have to under AWA. 42 USC 16925(b). It seems Keathley missed that AWA provision:

Doe v. Keathley, 2009 - Missouri Supreme Court held that the federal SORNA imposes an independent obligation on sex offenders living in Missouri to register, even if they would not been required to register under state law. As a result of the Missouri Supreme Court’s opinion in Keathley, all sex offenders living in Missouri must register. For those individuals convicted of sex offenses prior to 1995, the retrospective law argument has been rendered moot.

From Doe v Keathley:

In this case, respondents are subject to the independent, federally mandated registration requirements under the Sexual Offenders Registration and Notification Act (SORNA). SORNA provides, inter alia, that "[a] sex offender shall register... in each jurisdiction where the offender resides." 42 U.S.C. section 16913. A "sex offender" is "an individual who was convicted of a sex offense." 42 U.S.C. section 16911(1). A "sex offense" includes a "criminal offense that has an element involving a sexual act or sexual contact with another." 42 U.S.C. section 16911(6). SORNA applies to individuals who committed a sex offense prior to July 20, 2006. 42 U.S.C. section 16913(d); 28 C.F.R., section 72.3. Therefore, SORNA imposes an independent obligation requiring respondents to register as sex offenders in Missouri. The independent registration requirement under SORNA operates irrespective of any allegedly retrospective state law that has been enacted and may be subject to the article I, section 13 ban on the enactment of retrospective state laws. Consequently, the circuit court erred in concluding that respondents are exempt from registration by virtue of article I, section 13 of the Missouri Constitution. The judgment is reversed.

All concur.

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Now see a 2011 decision Doe (A different Doe) v Keathley. Especially the conclusion:

... Indeed, the sentence of the Attorney General's statement immediately preceding the sentence on which Doe relies states categorically that "SORNA's requirements apply to all sex offenders, regardless of when they were convicted," 76 Fed.Reg. at 1639, recognizing the distinction between an offender's statutory obligation to register, on the one hand, and a State's efforts to ensure that offenders in fact comply, on the other. Second, Doe's petition only sought relief on the basis that he had not been "convicted" of a sex offense within the meaning of the statute. He did not allege that he should be exempted from SORNA's registration requirements because he had completed his involvement in Missouri's criminal justice system at the time the statute became effective. Doe is not entitled to relief on a ground he did not assert in the circuit court.

Make sure your petition alleges the correct issues, the outcome may control whether or not you must register under SORNA.

In the Matter of Care and Treatment of Edwards v State Law Enforcement Division

12-28-2011 South Carolina:

In the Matter of Care and Treatment of Edwards v State Law Enforcement Division
(395 S.C. 571 (2011)

State Law Enforcement Division (SLED) (Appellant), appeals the circuit court order relieving Jeremy Lane Edwards (Respondent) from the sex offender registration requirements of section 23-3-430 of the South Carolina Code. We affirm.

FACTUAL/PROCEDURAL BACKGROUND

In 1998, Respondent pled guilty to two counts of "Peeping Tom," pursuant to section 16-17-470 of the South Carolina Code.1 Respondent served a probationary sentence including one hundred hours of community service. In 2004, Respondent received a pardon from the South Carolina Department of Probation, Parole, and Pardon Services (SCDPPPS). In 2009, Respondent filed petitions with the Horry, Greenville, and Florence County solicitors requesting that the circuit court issue an order mandating that he was no longer required to register as a sex offender. The Horry and Greenville County solicitors did not object to the petition. The Florence County solicitor could not respond to the petition, due to a conflict, and referred the case to the South Carolina Attorney General.

The Attorney General opposed the petition, and asserted that Respondent's pardon did not relieve him from the requirement that he register as a sex offender. The Attorney General argued that the amendments to section 23-3-430 were remedial and procedural in nature, and thus applied retroactively to Respondent's case. The circuit court disagreed, and ruled that the 2004 pardon relieved Respondent from the registration requirements of section 23-3-430, and that the 2005 and 2008 amendments did not apply retroactively.

ISSUES
The parties raise three issues on appeal:

I. Whether the 2004 pardon relieved Respondent of the registration requirements of section 23-3-430 of the South Carolina Code.

II. Whether the amendments to section 23-3-430 clarified rather than changed the law requiring pardoned sex offenders to comply with the statute's registration requirements.

III. Whether the amendments to section 23-3-430 are procedural or remedial in nature, and therefore, apply retroactively.

CONCLUSION
Respondent's 2004 pardon relieved him of all consequences of his conviction for the foregoing reasons. The General Assembly's 2005 and 2008 amendments to section 23-3-430 of the South Carolina Code cannot be applied retroactively to Respondent's case. Thus, we affirm the circuit court's order relieving Respondent of the requirement to register as a sex offender. AFFIRMED.

How to apply for a Pardon

Heath v State

11-4-2009 Delaware:

Heath v State (Most unusual case)
(983 A.2d 77 (2009)

The Governor, as the Board of Pardons recommended, unconditionally pardoned Brian Heath for Second Degree Unlawful Sexual Contact. We address, on first impression, whether that pardon permits Heath to deregister as a sexual offender. The trial judge decided that the pardon statute's silence regarding registration differentiates its effect from expunction, which would extinguish Heath's Registry requirements.

Because the Board and Governor review "propensity for recidivism" before recommending and granting an unconditional pardon and a pardon restores all civil rights, no basis remains for mandating continued registration as a sex offender. Therefore, we REVERSE the judgment of the Superior Court

Article: Ruling limits sex offender registry.

John Doe, SO Registry Board No. 95318 v Sex Offender Registry Board

8-11-2011 Massachusetts:

John Doe, SO Registry Board No. 95318 v Sex Offender Registry Board

This appeal requires us to examine the application of the Massachusetts sex offender registration law (registration law) to the particular offense of possession of child pornography. The plaintiff, John Doe, appeals from a Superior Court judgment affirming a decision of a hearing examiner of the Sex Offender Registry Board (board) classifying him as a level two offender. The plaintiff argues that the decision, grounded upon his conviction of possession of child pornography, lacks the support of substantial evidence required by G. L. c. 30A, § 14(7)(e), and suffers from error of law and arbitrariness within the meaning of G. L. c. 30A, § 14(7)(c) and (g). He maintains also that the hearing examiner's denial of his request for funds to retain expert assistance violated his constitutional rights. For the following reasons, we vacate the judgment and remand the case to the board.

....

Finally, the hearing officer's equation of possession of child pornography (and the victimization of its subjects) with the dangerousness contemplated by the statute (peril to persons within the range of level two notification) does not rest upon any specified evidence, expert or general, adduced in the adjudicatory hearing. Without such support it runs the risk of arbitrariness within the meaning of G. L. c. 30A, § 14(7)(g). For these several reasons, reconsideration of the administrative decision is necessary. [FN10] We therefore remand the case to the board for determination of these questions.

2. Funds. In September of 2006, as a preliminary matter, a hearing officer denied Doe's application for funds for retention of expert assistance. The hearing officer denied the request in accordance with the board's then prevailing interpretation that it need not consider an award of such funds to an *904 indigent applicant unless the board intended to employ expert testimony. No expert witness appeared in this case.

The governing law has materialized very differently since that ruling. In Doe, Sex Offender Registry Bd. No. 89230 v. Sex Offender Registry Bd., 452 Mass. 764, 770-771 (2008), the court interpreted G. L. c. 6, § 178L(1)(a), to provide the board with discretion to grant funds to an indigent sex offender independently of the board's intention to rely upon expert information. The burden of demonstrating the need for specific expert assistance falls upon the applicant. Id. at 775. In Doe, Sex Offender Registry Bd. No. 151564 v. Sex Offender Registry Bd., 456 Mass. 612, 623-624 & n.8 (2010), the court extended that ruling retroactively and remanded the case to the board to afford the plaintiff an opportunity to request such a discretionary grant of funds. See Doe, Sex Offender Registry Bd. No. 73946 v. Sex Offender Registry Bd., 79 Mass. App. Ct. 901, 902 (2011).

Our case falls into this emerged category. The plaintiff here did not have the opportunity to justify his request to a decision maker with discretion to grant it. Upon remand he may do so.

Conclusion. The judgment of the Superior Court and the order of the board are vacated. The case is remanded for further proceedings consistent with this opinion.

Commonwealth v Nash

5-19-2011 Kentucky:

COMMONWEALTH v. NASH
(338 S.W.3d 264 (2011)
(Earlier Holding)

Appellee, Anthony Nash, was convicted, pursuant to a conditional guilty plea, of a first offense violation of Kentucky's Sex Offender Registration Act (a Class D felony), and being a second-degree persistent felony offender.

Because Appellee was not required to register as a sex offender, we vacate the opinion of the Court of Appeals, and likewise we vacate the convictions, and remand to the trial court with instructions to dismiss the indictment.

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Sex offender registry not retroactive, court rules

5-19-2011 Kentucky:

LOUISVILLE, Ky. (AP) — A requirement that sex offenders in Kentucky register their address with law enforcement cannot be enforced retroactively, which means a Lexington man is wrongfully in prison for failing to register, the state's Supreme Court ruled Thursday.

In a 5-2 split, the high court found that anyone convicted of a sex offense before 1994 cannot be forced to give their address to law enforcement officials. The ruling comes in the case of 37-year-old Anthony Nash of Lexington, who was initially convicted two counts of third-degree sodomy on Dec. 14 1993, just months before Kentucky enacted its sex offender registration requirements.

The high court ruled the 1994 law didn't apply to Nash because his conviction came before it was passed and there was no provision making the law retroactive.

"As he was not required to register, he cannot be guilty of the crime of failing to register, and any sentence imposed on him would be manifestly infirm," Justice Wil Schroeder wrote for the majority. "As it stands, the Appellee sits in prison wrongfully convicted."

Nash's original conviction carried a six-year sentence. He was paroled in November 1996, but his release was revoked six months later. He served out his sentence and was released in 1997. He was charged with receiving stolen property in 1999 and as a persistent felony offender and sentenced to five years in prison.

A grand jury in Fayette County charged Nash, who has been in and out of prison for multiple crimes, in January 2007 with failing to register his address. Nash pleaded guilty in August 2007 and received a five-year sentence. Nash, who is in Green River Correctional Complex in Central City, reserved the right to appeal. He is currently scheduled for release June 18, 2016.

Before the high court, Nash argued that Kentucky's sex offender laws were never changed to require someone convicted before they were adopted to register. The first adaptation of the law required people convicted after July 15, 1994 to register with law enforcement.

The law underwent multiple other changes, including amendments, including adding a provision expanding restrictions on where offenders could live, making it a felony for a sex offender to fail to register and allowing for DNA samples to be taken from registrants.

Justice Daniel Venters, joined by Chief Justice John D. Minton Jr., noted in dissent that the case serves as a "sobering reminder" that the criminal justice system sometimes overlooks the obvious.

But, Venters wrote, the high court acted too quickly in taking the case and reversing Nash's conviction.

"What seems to be readily apparent to us now escaped the attention of his lawyers, prosecutors, and the judge three times," Venters wrote. ..Source.. by BRETT BARROUQUERE

Reimers v State ex rel Dept of Correction

7-18-2011 Oklahoma:

REIMERS v. STATE EX REL. DEPARTMENT OF CORRECTIONS (Decision is based on the totality of the changes to the laws SINCE his conviction.)

The question before this Court is whether Plaintiff must continue to register as a sex offender pursuant to subsequent amendments to OSORA that became effective after he completed his sentence?

We answer the question in the negative, but in doing so we need not address Plaintiff's argument that the amended statute is an unconstitutional ex post facto law. We hold that under the specific facts of this case, OSORA does not apply to this Plaintiff because the amendments are substantive in nature and not merely procedural.

Finding no legislative intent to retroactively apply a substantive change in the law, Plaintiff is entitled to the relief sought.

Connecticut Dept Of Public Safety V Doe

3-5-2003 Connecticut:

Connecticut Dept. Of Public Safety V. Doe (Oral Argument)

Among other things, Connecticut’s “Megan’s Law” requires persons convicted of sexual offenses to register with the Department of Public Safety (DPS) upon their release into the community, and requires DPS to post a sex offender registry containing registrants’ names, addresses, photographs, and descriptions on an Internet Website and to make the registry available to the public in certain state offices.

Respondent, a convicted sex offender who is subject to the law, filed a 42 U.S.C. § 1983 action on behalf of himself and similarly situated sex offenders, claiming that the law violates, inter alia, the Fourteenth Amendment’s Due Process Clause. The District Court granted respondent summary judgment, certified a class of individuals subject to the law, and permanently enjoined the law’s public disclosure provisions.

The Second Circuit affirmed, concluding that such disclosure both deprived registered sex offenders of a “liberty interest,” and violated the Due Process Clause because officials did not afford registrants a predeprivation hearing to determine whether they are likely to be “currently dangerous.”

U.S. Supreme court Held: The Second Circuit’s judgment must be reversed because due process does not require the opportunity to prove a fact that is not material to the State’s statutory scheme. Mere injury to reputation, even if defamatory, does not constitute the deprivation of a liberty interest. Paul v. Davis, 424 U.S. 693. But even assuming, arguendo, that respondent has been deprived of a liberty interest, due process does not entitle him to a hearing to establish a fact–that he is not currently dangerous–that is not material under the statute. Cf., e.g., Wisconsin v. Constantineau, 400 U.S. 433.

Note: A review of both of these cases will show, that, in today's climate of dozens of laws affecting a person's reputation on both the federal and state levels, this is no longer a "mere injury to reputation," now it is equivalent to civil death in society. A second point is, in Paul v Davis there was an exception, it said, if it affects one's employment then it is no longer a "mere injury" and today we see sex offenders laws clearly preventing registrants from any gainful employment.

As the DPS Website explains, the law’s requirements turn on an offender’s conviction alone–a fact that a convicted offender has already had a procedurally safeguarded opportunity to contest. Unless respondent can show that the substantive rule of law is defective (by conflicting with the Constitution), any hearing on current dangerousness is a bootless exercise. Respondent expressly disavows any reliance on the substantive component of the Fourteenth Amendment’s protections, and maintains that his challenge is strictly a procedural one. But States are not barred by principles of “procedural due process” from drawing such classifications. Michael H. v. Gerald D., 491 U.S. 110, 120 (plurality opinion). Such claims “must ultimately be analyzed” in terms of substantive due process. Id., at 121. Because the question is not properly before the Court, it expresses no opinion as to whether the State’s law violates substantive due process principles. Pp. 4—6.

271 F.3d 38, reversed.

Doe v State Dept Of Public Safety

6-11-2004 Alaska:

Doe v. State, Dept. Of Public Safety (Alt-Site)

This appeal presents a discrete question left unanswered by the United States Supreme Court in its recent decision rejecting a constitutional challenge to Alaska's sex offender registration statute.

After he was convicted of a sex offense, John Doe1 received a suspended imposition of sentence (SIS), subject to satisfying specified conditions. When Doe's probationary period expired without imposition of sentence, the superior court set aside his conviction under authority of AS 12.55.085(e).

The Alaska Sex Offender Registration Act (ASORA)2 became effective soon after the court set aside Doe's conviction. ASORA requires persons convicted of sex offenses to register with the state and to provide and periodically update detailed personal information that the state then publishes on the Internet.

We conclude that applying ASORA to a person whose conviction was set aside before ASORA became specifically applicable to convictions that were set aside violates the Alaska Constitution's guarantee of due process. We therefore remand for entry of an order enjoining the state from publishing Doe's personal information and requiring it to return all information Doe provided when he registered under protest.

Smith v Doe

3-5-2003 Alaska:

Smith v. Doe (Oral Argument) (U.S. Supreme Court)

Under the Alaska Sex Offender Registration Act (Act), any sex offender or child kidnaper incarcerated in the State must register with the Department of Corrections within 30 days before his release, providing his name, address, and other specified information. If the individual is at liberty, he must register with local law enforcement authorities within a working day of his conviction or of entering the State. If he was convicted of a single, nonaggravated sex crime, the offender must provide annual verification of the submitted information for 15 years.

If he was convicted of an aggravated sex offense or of two or more sex offenses, he must register for life and verify the information quarterly. The offender’s information is forwarded to the Department of Public Safety, which maintains a central registry of sex offenders. Some of the data, such as fingerprints, driver’s license number, anticipated change of address, and whether the offender has had medical treatment afterwards is kept confidential.

The offender’s name, aliases, address, photograph, physical description, driver’s license number, motor vehicle identification numbers, place of employment, date of birth, crime, date and place of conviction, length and conditions of sentence, and a statement as to whether the offender is in compliance with the Act’s update requirements or cannot be located are, however, published on the Internet. Both the Act’s registration and notification requirements are retroactive.

Respondents were convicted of aggravated sex offenses. Both were released from prison and completed rehabilitative programs for sex offenders. Although convicted before the Act’s passage, respondents are covered by it. After the initial registration, they are required to submit quarterly verifications and notify the authorities of any changes. Both respondents, along with the wife of one of them, also a respondent here, brought this action under 42 U.S. C. §1983, seeking to declare the Act void as to them under, inter alia, the Ex Post Facto Clause, U.S. Const., Art. I, §10, cl. 1.

The District Court granted petitioners summary judgment. The Ninth Circuit disagreed in relevant part, holding that, because its effects were punitive, the Act violates the Ex Post Facto Clause.

U.S. Supreme court Held: Because the Alaska Sex Offender Registration Act is nonpunitive, its retroactive application does not violate the Ex Post Facto Clause. Pp. 4—18.

State v Gingell

4-5-2011 Ohio:

State v. Gingell [ Gingell ]

(In Bodyke, this court held that R.C. 2950.031 and 2950.032, the reclassification provisions in the AWA, were unconstitutional and severed them from the AWA. This court specifically addressed what that severance meant for offenders like Gingell, who had originally been classified under Megan's Law and were then reclassified under the AWA: "R.C. 2950.031 and 2950.032 may not be applied to offenders previously adjudicated by judges under Megan's Law, and the classifications and community-notification and registration orders imposed previously by judges are reinstated." Bodyke at ¶ 66.

Thus, pursuant to Bodyke, Gingell's original classification under Megan's Law and the associated community-notification and registration order were reinstated. Therefore, the current version of R.C. 2950.06, which requires Tier III sexual offenders to register every 90 days, does not apply to Gingell. Since Gingell was charged after his reclassification and before Bodyke, there is no doubt that he was indicted for a first-degree felony for a violation of the reporting requirements under the AWA.

Because the application of the AWA was based upon an unlawful reclassification, we reverse the judgment of the court of appeals and vacate Gingell's conviction for a violation of the 90-day address-verification requirement of R.C. 2950.06. Gingell remained accountable for the yearly reporting requirement under Megan's Law; whether he met that requirement is not a part of this case. Judgment reversed.

Doe v State of Alaska

7-25-2008 Alaska:

Doe v State of Alaska
(189 P.3d 999 (2008))

This is 5 years after the U.S. Supreme court Alaska case of Smith v Doe. Given the state supreme court now feels ASORA is unconstitutional is proof that registration is now further punishment, given it is coupled with many other newer laws affecting registrants.

The Alaska statute known as the Alaska Sex Offender Registration Act (ASORA) requires persons convicted of sex offenses to register and periodically re-register with the Alaska Department of Corrections, the Alaska State Troopers, or local police, and disclose detailed personal information, some of which is not otherwise public. Most of the disclosed information is publicly disseminated and is published by the state on the internet.1

Does applying ASORA to "John Doe," who committed his crime and was convicted and sentenced before ASORA was enacted, violate the ex post facto clause of the Alaska Constitution? We conclude that it does because ASORA imposes burdens that have the effect of adding punishment beyond what could be imposed when the crime was committed.

We therefore hold that ASORA's registration requirement does not apply to persons who committed their crimes before ASORA became effective, and reverse the superior court order granting final judgment in favor of the state and against Doe.

Article: Offender won't have to register

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PDF Here

People v Dowdy

7-11-2011 Michigan:

People v Dowdy (Not Favorable)

We granted leave to appeal in this case to determine whether homeless sex offenders are obligated to comply with the registration requirement imposed by the Sex Offenders Registration Act (SORA).1 Specifically, we consider whether homeless sex offenders have a "residence" or "domicile" such that they can comply with the statute's registration requirements.

We hold that homelessness is not a bar to compliance with SORA because homelessness does not preclude an offender from entering a police station and reporting to a law enforcement agency regarding the offender's residence or domicile. The Legislature intended SORA to be a comprehensive system that requires all sex offenders to register, whether homeless or otherwise. Therefore, we reverse the Court of Appeals' judgment and remand this case for trial.