9th Circuit Court Rules Expanding Restristions on RSO's "Constitutionally Sound"

From: Courthouse News Service, http://www.courthousenews.com/2012/02/10/43788.htm 

Sex Offender Rules for Nevada Upheld by 9th

By TIM HULL

(CN) - Nevada can retroactively apply tough new registration rules for sex offenders, the 9th Circuit ruled Friday.
     The appeals court in San Francisco joined several of its sister circuits in finding that the retroactive application of the federal Sex Offender Registration and Notification Act is "constitutionally sound."
     The Nevada Legislature passed its version of the federal child-protection legislation - which encourages states to adopt uniform, expanded rules for sex offenders, and withholds federal law-enforcement funds from those who don't - in 2007. But the state law exceeded Washington's mandate in a few areas.
     The Legislature supplemented the law by requiring police to provide public notice of the status of some sex offenders, and notify youth groups and religious organizations about some offenders. In other areas, the state provisions largely mimicked those in the federal law.
     Several anonymous sex offenders teamed up with the American Civil Liberties Union Nevada to fight the legislation in Las Vegas. The federal complaint said retroactive application of the new rules would violate the ex-post facto and double jeopardy clauses of the U.S. Constitution.
     U.S. District Judge James Mahan agreed, and he permanently barred the state from applying the rules retroactively in 2008.
     A three-judge panel of the 9th Circuit reversed unanimously on Friday, joining the five other circuits (the 11th, 10th, 8th, 7th and 5th) that upheld retroactive application of the act's requirements against constitutional scrutiny.
     "We have not explicitly ruled on the constitutionality of retroactive application of SORNA-inspired requirements," Judge Stephen Trott wrote for the panel. "Many of our sister circuits, however, have considered this issue. Unanimously they have concluded that retroactive imposition of SORNA requirements is constitutional ... We join them in concluding that the requirements of [the law] do not constitute retroactive punishment in violation of the ex post facto clause or double jeopardy clause."
     The few differences in the Nevada law are not enough to disrupt such unanimity, the panel found.
     Nevada's law was intended not to impose further criminal punishment but "to create a civil regulatory regime with the purpose of enhancing public safety." Thus it can be applied retroactively under precedent set by the U.S. Supreme Court in 2003's Smith v. Doe, which upheld Alaska's sex-offender law.
     But ACLU Nevada's general council Allen Lichtenstein told Courthouse News that there are "significant differences" between the Nevada law and those approved in other circuits. He said the group is still evaluating its next step.
     "We feel that there are some important distinctions between Nevada and those other jurisdictions," he said in a phone interview on Friday.
     ACLU Nevada had also challenged the retroactive application of a separate law passed by the state Legislature that puts tough new residency restrictions on sex offenders. The District Court enjoined that law as well, but the 9th Circuit found that the issue was moot on appeal. Nevada has already admitted in court filings that it "will not retroactively impose residency and movement restrictions," the panel said.
     The 9th Circuit remanded that portion of the case back to the lower court, urging a settlement. If that fails, however, the District Court injunction will remain in place.