MT- Molloy: Sex offender registry rule unconstitutional

6-14-2008 Montana:

A federal judge in Missoula this week ruled that a provision of the national Sexual Offender Registration and Notification Act (SORNA) is unconstitutional and dismissed a felony indictment accusing one sex offender of failing to register in Montana.

In a 44-page opinion issued Wednesday, U.S. District Judge Donald W. Molloy ruled that Congress cannot federally criminalize a sex offender's failure to register in a state-run database. Congress therefore exceeded its authority under the Interstate Commerce Clause by making it a federal crime for a sex offender to travel to another state and fail to re-register in that jurisdiction, Molloy wrote.

Jessica T. Fehr, a spokeswoman for the U.S. Attorney's Office in Montana, said the government intends to appeal the decision to the 9th U.S. Circuit Court of Appeals.

“The U.S. Attorney's Office will be recommending to the Office of the Solicitor General that we do appeal Judge Molloy's decision,” Fehr said Friday. The U.S. Attorney's Office must receive authorization from the solicitor general before appealing a decision.

According to Molloy's order, no other appellate court has ruled on the issue, and his decision could potentially clear the way for other similar indictments to be dismissed on the same grounds.

“If the factual scenario fits in other cases, we will try to get those cases dismissed,” said Tony Gallagher, executive director of the Federal Defenders of Montana. “It's a big decision and it's a highly tactical point. We went after the indictment full bore with three motions to dismiss. We raised everything we possibly could, and Judge Molloy ruled that Congress went beyond its authority under the Commerce Clause in this particular scenario.”

The scenario at hand involves Bernard L. Waybright, 58, who in May 2004 was convicted of a misdemeanor sex crime in a West Virginia state court. As part of his sentence, he was required to register under the federal Sexual Offender Registration and Notification Act, which keeps track of where sex offenders reside. He then traveled to Montana on several occasions, but did not re-register with local law enforcement authorities, as required by federal law.

In his order, Molloy dismissed the indictment without prejudice, ruling that the provision “would allow Congress to federalize nearly any local criminal offense simply by making it a crime for someone who committed the offense to travel in interstate commerce at some point in his life.”

Because Molloy dismissed the indictment “without prejudice,” federal prosecutors can re-allege the charges against Waybright if they find another legal hook to do so.

Federal defender John Rhodes of Missoula filed the motions to dismiss the indictment, asserting seven different legal grounds that he argued during a hearing earlier this month.

Molloy denied a majority of those arguments, but ruled in favor of Rhodes' assertion that Congress overreached its authority and violated the Interstate Commerce Clause.

“It is evident that the same or similar arguments have been raised in district courts around the country,” Molloy wrote in his opinion. “These courts have mostly rejected such challenges for varying reasons. In my view, those district courts have it right for the most part. I conclude that all of Waybright's arguments, except one, lack merit.”

The exception is Waybright's claim that enactment of a particular provision requiring all sex offenders to register, regardless of whether they travel in interstate commerce, is not a valid exercise of Congress' power under the U.S. Constitution. Molloy therefore declared the provision unconstitutional. ..News Source.. by TRISTAN SCOTT of the Missoulian