U.S. v. Volungus, Civil Action No. 07-12060-GAO.

• Citation: 599 F.Supp.2d 68
• Decision Date: 27 February 2009
• Docket Number: Civil Action No. 07-12060-GAO.
• Parties: UNITED STATES of America, Petitioner v. John Charles VOLUNGUS, Respondent.
• Court: U.S. District Court — District of Massachusetts

599 F.Supp.2d 68

UNITED STATES of America, Petitioner v. John Charles VOLUNGUS, Respondent.

Civil Action No. 07-12060-GAO.

United States District Court, D. Massachusetts.

February 27, 2009.

Jennifer C. Boal, Timothy Q. Feeley, Mark J. Grady, Mark T. Quinlivan, Jennifer A. Serafyn, United States Attorney's Office, Boston, MA, for Petitioner.

William W. Fick, Page Kelley, Judith H. Mizner, Federal Defender's Office, Boston, MA, for Respondent.

OPINION AND ORDER

O'TOOLE, District Judge.

On his plea of guilty, John Charles Volungus was convicted in 1999 of three federal criminal sex offenses: use of a facility of interstate commerce to attempt to persuade a person under the age of eighteen to engage in a sexual act in violation of 18 U.S.C. § 2422(b); possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(A); and receipt of child pornography through interstate commerce by means of a computer in violation of 18 U.S.C. § 2252(a)(2). He was sentenced to fifty-three months imprisonment, followed by a term of supervised release. His supervised release was later revoked and he was committed to the custody of the Bureau of Prisons for twenty-three months. The latter term of imprisonment expired February 15, 2007. (Notice of Certification that Resp't is a Sexually Dangerous Person & Req. for Hg. Pursuant to 18 U.S.C. § 4248(a) Ex. 1.)

Volungus remains in the custody of the Bureau of Prisons at the Federal Medical Center Devens in Ayer, Massachusetts, because before his projected release date, the United States initiated this proceeding to obtain a determination that he is a "sexually dangerous person" subject to civil commitment for treatment in a suitable facility pursuant to the provisions of 18 U.S.C. §§ 4247 and 4248. Under § 4248(a), the filing of the certificate attached to the government's petition permits Volungus's detention until the issue has been determined. So far as appears, there is no other authority for his continued detention in the custody of the Bureau of Prisons.

Volungus has moved to dismiss the present proceeding on several grounds, each based in a provision of the United States Constitution. It is not necessary to address them all. I agree with Volungus that enactment of the regime for civil commitment of "sexually dangerous persons" does not fall within the scope of the powers granted to Congress by the Constitution and is, therefore, invalid.¹

I. The Statutory Framework

The Adam Walsh Child Protection and Safety Act of 2006 ("the Act") established the Jimmy Ryce Civil Commitment Program, which authorizes the Attorney General or the Director of the Bureau of Prisons ("Director") in certain circumstances to seek the indefinite civil commitment of any person, in federal custody for other reasons, on the ground that the person is a "sexually dangerous person" who is "sexually dangerous to others." See Pub. L. No. 109-248, § 302, 120 Stat. 587, 619-22 (codified at 18 U.S.C. §§ 4247, 4248). A "sexually dangerous person" is "a person who has engaged or attempted to engage in sexually violent conduct or child molestation and who is sexually dangerous to others." 18 U.S.C. § 4247(a)(5). A person is "sexually dangerous to others" if "the person suffers from a serious mental illness, abnormality, or disorder as a result of which he would have serious difficulty in refraining from sexually violent conduct or child molestation if released." Id. § 4247(a)(6).

The statutory commitment procedure is initiated when the Attorney General or the Director certifies that a person in custody is a "sexually dangerous person" and transmits that certification to the clerk of the district court for the district in which the person is confined. Id. § 4248(e). Such a certification stays the release of the person until the commitment process has been concluded. Id. Upon receipt of the certification, the district court must conduct a hearing to determine whether the person is indeed a "sexually dangerous person." Id. § 4248(c). If the court concludes by clear and convincing evidence that the person is sexually dangerous as defined, it will order the person committed to the custody of the Attorney General in a "suitable facility" until the State of his domicile or the State where he was tried assumes custodial responsibility. Id. § 4248(d). If the relevant State refuses responsibility, the person will remain committed in the custody of the Attorney General. Id.

The Act prescribes procedures for an annual review of the determination that the person is "sexually dangerous." Id. § 4247(e). The provisions include the possibility of a judicial hearing on the issue. Id. § 4248(e). If it is found that the person continues to be sexually dangerous, he remains committed. If it is found that the person will not be sexually dangerous if released, he will be released either unconditionally or subject to a prescribed treatment regimen. See id.

These commitment procedures may be applied to three categories of persons: (1) "a person who is in the custody of the Bureau of Prisons," (2) a person "who has been committed to the custody of the Attorney General pursuant to section 4241(d)" (authorizing limited civil commitment of a person found not competent to stand trial), and (3) a person "against whom all criminal charges have been dismissed solely for reasons relating to the mental condition of the person." Id. § 4248(a). Volungus apparently falls within the first category, as he is "a person in the custody of the Bureau of Prisons." (See Notice of Certification that Resp't is a Sexually Dangerous Person & Req. for Hg. Pursuant to 18 U.S.C. § 4248(a) Ex. 1 2.) There is no indication he falls within either of the other two categories.

II. Civil Commitment and the Powers of Congress

As one ground in support of his motion to dismiss, Volungus argues that the enactment of the civil commitment regime for "sexually dangerous persons" falls outside the scope of the powers granted to Congress by the Constitution. It will benefit the consideration of this argument to recapitulate some familiar first principles.

The Constitution prescribes the national frame of government. Its first three Articles establish the three branches of government, vesting the legislative, executive, and judicial powers respectively in the Congress of the United States, U.S. Const. art. I, § 1, the President of the United States, id. art. II, § 1, and the Supreme Court and such inferior courts as Congress may from time to time ordain and establish, id. art. III, § 1. Each Article outlines the scope of the powers granted to each respective branch.

Members of the federal bench and bar are surpassingly familiar with the limitations of the powers of the federal judiciary established in Article III. Unless a "case" or "controversy" falls within the authorized jurisdiction of the federal courts, it may not be heard by them. See Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994) ("Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute."). Observance of those limitations is so thoroughgoing that even a case fully tried must be dismissed as unadjudicated if it later appears that the case falls outside the legitimate jurisdictional power of the federal courts to entertain. See Mansfield, C & L.M. Ry. Co. v. Swan, 111 U.S. 379, 383, 4 S.Ct. 510, 28 L.Ed. 462 (1884); Capron v. Van Noorden, 6 U.S. (2 Cranch) 126, 127, 2 L.Ed. 229 (1804). Any practical desire to let stand what might be a substantively correct and procedurally fair outcome must yield to an unyielding respect for the limits drawn by the Constitution and jurisdictional statutes. See Francis v. Goodman, 81 F.3d 5, 8 (1st Cir.1996) (rejecting the argument that a judgment entered in absence of jurisdiction "should be affirmed in the interests of judicial economy and minimizing litigation costs," because "federal courts are not at liberty to overlook limitations on their subject matter jurisdiction").

As with the judiciary, the powers granted to Congress are enumerated and consequently limited, though they are certainly broad.² See U.S. Const. art. I, § 8. And just as with judicial decisions that fall outside the proper jurisdiction of the federal courts, acts of Congress that fall outside the scope of the powers of Congress have no validity.³ See United States v. Morrison, 529 U.S. 598, 607, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000).

A. The Commerce Clause

One of the powers granted to Congress is the power to "regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." U.S. Const. art. I, § 8, cl. 3. Though once construed rather narrowly and literally, beginning in the 1930s and continuing to the present, the Commerce Clause has generally been given a broad interpretation. See United States v. Lopez, 514 U.S. 549, 554-59, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995) (tracing the development of the interpretation of the Commerce Clause in the twentieth century). It is now settled that, acting under the authority conferred by the Commerce Clause, there are "three broad categories of activity that Congress may regulate...." Id. at 558, 115 S.Ct. 1624.

First, Congress may regulate the use of the channels of interstate commerce. Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities. Finally, Congress' commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce, i.e., those activities that substantially affect interstate commerce.

Id. at 558-59, 115 S.Ct. 1624 (internal citation omitted).

The government does not appear to argue that the Commerce Clause, by itself, would authorize the enactment of the regime for civil commitment of sexually...