American Civil Liberties Union of Nevada v. Masto

Decision Date10 February 2012
Docket Number09–16008.,Nos. 08–17471,s. 08–17471
Citation12 Cal. Daily Op. Serv. 1794,670 F.3d 1046,2012 Daily Journal D.A.R. 1932
PartiesThe AMERICAN CIVIL LIBERTIES UNION OF NEVADA; Does 1–8, and Does A–S, Plaintiffs–Appellees, v. Catherine Cortez MASTO, Esquire, Attorney General of the State of Nevada; Gerald Hafen, Director of the Nevada Department of Public Safety; Bernard W. Curtis, Chief, Parole and Probation Division of the Nevada Department of Public Safety; Captain P.K. O'Neill, Chief, Records and Technology Division of the Nevada Department of Public Safety, Defendants–Appellants,andMichael Haley, Sheriff of the Washoe County Sheriff's Office; Michael Poehlman, Chief of the Reno Police Department; Richard Gammick, District Attorney of Washoe County; Douglas Gillespie, Sheriff of the Las Vegas Metropolitan Police Department; Joseph Forti, Chief of the North Las Vegas Police Department; David Roger, District Attorney of Clark County; Richard Perkins, Chief, Henderson Police Department, Defendants.The American Civil Liberties Union of Nevada; Does 1–8, and Does A–S, Plaintiffs–Appellees, v. Catherine Cortez Masto, Esquire, Attorney General of the State of Nevada; Gerald Hafen, Director of the Nevada Department of Public Safety; Bernard W. Curtis, Chief, Parole and Probation Division of the Nevada Department of Public Safety; Captain P.K. O'Neill, Chief, Records and Technology Division of the Nevada Department of Public Safety, Defendants–Appellants,andMichael Haley, Sheriff of the Washoe County Sheriff's Office; Michael Poehlman, Chief of the Reno Police Department; Richard Gammick, District Attorney of Washoe County; Douglas Gillespie, Sheriff of the Las Vegas Metropolitan Police Department; Joseph Forti, Chief of the North Las Vegas Police Department; David Roger, District Attorney of Clark County; Richard Perkins, Chief, Henderson Police Department, Defendants.
CourtU.S. Court of Appeals — Ninth Circuit

OPINION TEXT STARTS HERE

Margaret A. McLetchie, ACLU of Nevada, and Robert Langford, Langford & Associates, Las Vegas, NV, for the plaintiffs-appellees.

Binu G. Palal, Nevada Attorney General's Office, Las Vegas, NV, for the defendants-appellants.

Appeal from the United States District Court for the District of Nevada, James C. Mahan, District Judge, Presiding. D.C. No. 2:08–cv–00822–JCM–PAL.Before: STEPHEN S. TROTT and CARLOS T. BEA, Circuit Judges, and WILLIAM H. STAFFORD, Senior District Judge.*

OPINION

TROTT, Circuit Judge:

The State of Nevada appeals the district court's permanent injunction prohibiting the retroactive application of two Nevada laws: Assembly Bill 579, expanding the scope of sex offender registration and notification requirements, and Senate Bill 471, imposing, inter alia, residency and movement restrictions on certain sex offenders. The district court permanently enjoined retroactive application of both bills on the grounds that they violated the Ex Post Facto Clause of the United States Constitution, the Contract Clause of the United States Constitution, the Double Jeopardy Clause of the Fifth Amendment, and the Due Process Clause of the Fourteenth Amendment. With respect to Assembly Bill 579, we hold that its retroactive application is constitutionally sound, and we reverse. With respect to Senate Bill 471, we conclude that our consideration of its disputed provisions was mooted by the State of Nevada's authoritative judicial admission that—regardless of the existence of the injunction—the State will not retroactively impose residency and movement restrictions. Because the State's concession moots its own appeal, we remand to the district court to consider vacating its Order as to Senate Bill 471 in favor of a binding consent decree. But if no consent decree can be negotiated, our dismissal of the State's appeal will leave the district court's injunction in vigor.

IBACKGROUND

In July 2007, the State of Nevada passed into law two statutes (Revised Laws) imposing various requirements on individuals convicted of sexual offenses, Assembly Bill 579 (AB 579”) and Senate Bill 471 (SB 471”).

Nevada's AB 579 is best understood against the backdrop of the federal Sex Offender Registration and Notification Act (“SORNA”), enacted as a section of the Adam Walsh Child Protection and Safety Act of 2006 (Adam Walsh Act). Pub.L. No. 109–248 (2006). SORNA encourages state governments, U.S. territories, and federally recognized Indian tribes to adopt a standardized sex offender registration and notification regime. 42 U.S.C. § 16912. It prescribes detailed registration and notification requirements to be adopted by each jurisdiction. To encourage implementation of the scheme, SORNA reduces federal law enforcement funds to jurisdictions that fail to adopt it, id. § 16925, and authorizes dispensation of grants to offset the cost of implementation, id. § 16926. SORNA also created the Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking (SMART Office) within the Department of Justice. Id. § 16945. The SMART Office assists jurisdictions with implementation of SORNA's registration and notification program and monitors compliance.

The State of Nevada passed AB 579 into law on June 13, 2007 to bring Nevada into compliance with SORNA. The law replaced Nevada's existing registration requirements with the scheme laid out in SORNA. The central innovation of SORNA and AB 579 is a classification system for sex offenders that places them into one of three risk tiers based solely on their crime of conviction. Registration and notification requirements are then keyed to an offender's tier classification. Largely using the language of SORNA, AB 579 also (1) expands the category of individuals required to register, (2) expands the time period during which sex offenders are subject to registration requirements, (3) requires sex offenders to register in person, and (4) obliges law enforcement actively to provide notice of the status of certain registrants. The SMART Office determined that after passage of AB 579 Nevada had “substantially implemented” SORNA requirements.1

AB 579 goes beyond SORNA in its requirement that law enforcement provide public notice of the status of certain sex offenders. For example, SORNA requires that an appropriate official provide notice of an individual's sex offender status to “each school and public housing agency” in the area where a sex offender resides. Id. § 16921(b)(2). Adding to this mandate, AB 579 requires law enforcement also to provide notification to youth organizations and religious organizations. AB 579 § 29(2). Additionally, for Tier III offenders (the most serious offenders), AB 579 obligates law enforcement to provide updated status information to “members of the public who are likely to encounter the offender.” Id. § 29(2)(a)(4).

Nevada's governor signed SB 471 into law the day after he signed AB 579, and the relevant provisions went into effect on October 1, 2007. In the provisions at issue in this action, SB 471 requires Nevada courts to include movement and residency restrictions in the term of probation, parole, or lifetime supervision imposed by a court upon individuals convicted of a sexual offense. 2 The law commands that sex offenders placed on lifetime supervision may not “knowingly be within 500 feet of any place” or reside anywhere “located within 1,000 feet of any place” that is “designed primarily for use by or for children.” SB 471 §§ 8(3), (4). Depending on their crime of conviction, parolees and probationers who are Tier III offenders are subject also to the movement restriction and/or the residency restriction. See id. §§ 2(1)(m), (2)(a) (pertaining to probation and suspended sentences); id. §§ 9(1)(k)(1), 10(1)(a) (pertaining to parole). Although SB 471 contains several other provisions, Plaintiffs' Amended Complaint challenged only the provisions of SB 471 imposing movement and residency restrictions and our decision is limited to those requirements.3

The American Civil Liberties Union of Nevada (ACLU), together with several unnamed Does, all individuals convicted of sexual offenses (together, Plaintiffs), brought a civil action challenging both facially and as applied the retroactive application of AB 579 and SB 471. They alleged that retroactive application of the new laws would violate a litany of state and federal constitutional provisions, and they requested declarative and injunctive relief. The complaint named as defendants Nevada's Attorney General, several officials in Nevada's Department of Public Safety (responsible for Nevada's parole and probation services), and various local law enforcement officials, all in their official capacity.

On June 30, 2008, United States District Court Judge James C. Mahan, ruling from the bench, granted a preliminary injunction against retroactive application of both laws. After the court issued the preliminary injunction, Plaintiffs agreed to a stipulation with the local law enforcement defendants that dismissed them from the case. The stipulation specified that the dismissal was premised on the condition that the dismissed defendants would abide by the preliminary injunction and “any other injunction or declarative relief granted” by the court.

On September 10, 2008, Judge Mahan issued a permanent injunction and ordered the Plaintiffs to draft an order granting the injunction. On October 7th, Judge Mahan signed the Plaintiffs' order, which enjoined retroactive application of both laws on the federal constitutional grounds that their application to offenders convicted before the dates the two laws became effective was a violation of procedural due process, the Ex Post Facto Clause and the Double Jeopardy Clause. The only discernable reasoning articulated by the court for its decision, under the pressure of an expedited schedule, was that

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