This federal judge is stopping any state court from litigating ANY issue of state law based on the state constitution, saying that if the issue is related to the Adam Walsh Act, that state courts have -in essence- no jurisdiction, and that only federal courts can render decisions. Someone tell me, did I miss when the 10th Amendment was rescinded?1-15-2010 Nebraska:
Further, written into the Adam Walsh Act, in Sec 125, it says:
(b) STATE CONSTITUTIONALITY.—
(1) IN GENERAL.—When evaluating whether a jurisdiction has substantially implemented this title, the Attorney General shall consider whether the jurisdiction is unable to substantially implement this title because of a demonstrated inability to implement certain provisions that would place the jurisdiction in violation of its constitution, as determined by a ruling of the jurisdiction’s highest court.
Sure seems like a state is allowed to render a decision, but not according to this federal judge? This will make a great appeal issue though...unfortunately registrants will suffer in the meantime.
Case pulled from Lincoln County; to be heard in federal court
A court case to determine the legality of Nebraska's new sex offender statutes will not be heard at the local level after a federal judge vacated the local court's authority to determine whether or not the new sex offender registry rules are constitutional.
Earlier this month, local attorney Robert Lindemeier filed an eight-cause injunction asking for a temporary restraining order to be granted in order to halt the new state law from going into effect until such a time the constitutionality issues of the law could be argued.
The order was signed by Lincoln County District Court Judge John Murphy, who was scheduled to hear the case on Thursday, but Murphy's authority to uphold the restraining order was vacated by U.S. District Court Judge Richard Kopf and the entire case was removed from district court and placed back into federal court.
Similar cases were filed in courts across the state of Nebraska, as well as other states that have implemented the new federal law, which is based on the Adam Walsh Act. Lindemeier filed his paperwork in the Lincoln County District Court prior to Kopf's ruling, which came out on a similar case filed in Omaha.
In that ruling, Kopf determined that only certain elements of the complaint could move forward for further argument, but dismissed all other claims, allowing the vast majority of the new law to go into effect. Post-conviction elements of the new law are the primary issues that Kopf has allowed to move forward, as well as rules defining social networking sites, which the new law bans convicted sex offenders from using under any circumstances.
Kopf also warned state courts not to interfere, promising to take "more direct action to stop any such interference."
Lindemeier said he knew that a ruling had come down from Kopf shortly before he filed his own case in Lincoln County, but thought the case would move forward locally because the argument was not based on the U.S. Constitution, but rather on the state constitution.
"There was a federal action filed prior to mine, which I didn't have a lot of knowledge on, but knew was out there," said Lindemeier. "Even when I knew of the ruling, I filed mine based strictly on the state constitution because I didn't want to cross the federal courts."
According to Lindemeier, Kopf vacated the Lincoln County District Court authority to provide a restraining order and a federal hearing will take place Jan. 21 instead.
"The judge said this law Nebraska enacted was directly in response to federal law," said Lindemeier. "Ultimately, it comes down to issues he decides, not state constitutional issues. He's removed it from state court, so we are in federal court and have a hearing next week. He vacated our temporary restraining order here and said it's no longer in effect."
The hearing is only a scheduling hearing, Lindemeier noted, saying that it will just be a teleconference that will determine what days certain arguments on certain aspects of the complaints can be heard.
The new law eliminates the old classification system that put sex offenders on three separate tiers with a Class 3 offender being most likely to re-offend. The old law also placed limitations on lower classifications as far as public access. Those limitations have been removed under the new law and information on all sex offenders is now available for public review.
Lindemeier said the fight would likely go all the way to the highest levels of justice.
"It's an open issue right now," he said. "It's probably going to be heading to the U.S. Supreme Court. I don't know if it will be from Nebraska or not because other states are also litigating this."
In the meantime, the majority of the law remains intact, which includes new registration requirements for convicted sex offenders. There is still information available on the registry to help the public determine the threat level of an offender.
While the three-tiered system has been eliminated, information pertaining to an offender's length of registration is also an indication as to the seriousness of the crime committed. ..Source.. Mark Young, WHNS
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