2-2-2011 New York:
The plaintiffs — the boy's parents and their three children, including the boy — are identified only by initials in the lawsuit filed Jan. 24 in United States District Court.
The defendants include Ontario County, the Victor Central School District, the Ontario County Sheriff's Office, Sheriff Phil Povero, Deputy Everett E. Roach, a resource officer in the school district, and Jeff Onze, a teacher in the school district.
The suit accuses the Sheriff's Office and the school district of negligent training and supervision of employees. The plaintiffs claim they suffered emotional distress, trauma, embarrassment and humiliation.
"As a direct result of the concerted actions of the Victor Central School District staff and continued media attention, the family, the accused boy and at least one victim were identified," according to the suit.
"Negative community reaction to the accusations placed the physical and emotional safety of all plaintiffs at risk," according to the 21-page suit.
The Democrat and Chronicle has never published the names of the boy, his parents or siblings, or any of the victims in the case.
According to the suit, high school teacher Jeff Onze sent messages from his school district e-mail account encouraging residents to call the Ontario County Attorney's Office, Victor Supervisor Jack Marren and the judge handling the boy's case to express outrage that the boy was allowed to remain at his parents' home, in a residential neighborhood, and that the boy might not be punished adequately.
On June 2, the boy confessed to three counts of second-degree sexual abuse, involving girls under 14. He was given two years probation, including 12 months at a residential treatment facility with 24-hour supervision.
The boy "could have benefited from a community-based treatment in the absence of public hostility," but instead was sent away from his family to a residential facility, the suit claims.
The plaintiffs claim they are still being harassed, including calls to police claiming they are failing to supervise their son even though he is actually at the court-mandated treatment facility. Because of "unbearable teasing and ostracism" the boy's sister was forced to leave Victor High School and enroll in a private school.
"The public attention generated by the media and gossip amongst (school) employees resulted in stigma and isolation of the entire family," the suit says.
The family has put their home up for sale and they plan to move away from the school district, according to the suit.
Ontario County Attorney John W. Park said the suit has not been served on any county offices or employees and he has no comment. Victor school district officials, and Onze, also said they have not been served and have no comment. ..Source.. Bennett J. Loudon • Staff writer
February 2, 2011
Parents of boy who admitted sex abuse file lawsuit
December 23, 2009
Kentucky Asks Supreme Court To Review Sex Offender Law
See earlier stories: Here -and- Here -and- Here -and- HERE -and- Here -and- Here12-23-2009 Kentucky:
FRANKFORT, Ky. -- Kentucky Attorney General Jack Conway has asked the U.S. Supreme Court to suspend the Kentucky Supreme Court's recent ruling which loosened restrictions on where convicted sex offenders may live.
Kentucky's high court ruled in October that the state's sex offender law, passed in 2006, was unconstitutional because it also applied to sex offenders whose convictions predated the law's enactment. The state high court recently denied Conway's request to suspend its own ruling while he appeals to the federal Supreme Court.
The law barred sex offenders from living within 1,000 feet of schools, daycare centers, playgrounds and other places where children congregate.
Kentucky State Police estimate about 5,500 offenders were affected by the law. ..Source.. WLKY.com
October 13, 2009
OH- Court nixes conviction in sex registration case
Without addressing the court's decision, I noticed something about court decisions, especially those governing sex offenders.
Laws governing sex offenders are different than all other laws, prior notice to the offender is mandated under all sex offender laws, federal and state. Proof of that is seen in AWA and State laws, by those jurisdictions requiring a signed form used to indicate that the jurisdiction notified the offender of his/her duties under the laws. That form is unnecessary except to cover the notice requirement written into law.
Now, if after the fact, it takes a panel of highly skilled judges to decide whether or not a person has violated a specific law, how in the name of heavens is a reasonable man supposed to know what is required of him/her?
10-13-2009 Ohio:
CINCINNATI — A federal appeals court has tossed out an Ohio man's conviction for failing to update his registration as a sex offender.
The court in Cincinnati says he was indicted based on a regulation that wasn't ready yet.
In a 2-to-1 decision, the 6th Circuit Court of Appeals on Tuesday ordered that the indictment against Marcus Cain be dismissed.
Cain was convicted of attempted rape in 1998.
The court says Cain's indictment for failing to register with authorities after moving from Ohio to Georgia covered a period that ended in March 2007. But that was while the government was still gathering comments on a regulation for applying a new federal registration to sex offenders convicted before July 2006. ..Source.. by Dayton Daily News
May 6, 2009
VT- ACLU-Vermont challenges Barre sex offender residency restrictions
5-6-2009 Vermont:
MONTPELIER - The American Civil Liberties Union Foundation of Vermont has filed a lawsuit against the city of Barre on behalf of a man who has been told that he cannot live with his wife and children in the city solely because of his criminal record.
The suit was filed in Washington Superior Court on behalf of Chris Hagan, a Vermonter who moved to Barre with his family this spring. The lawsuit challenges the legality of a city ordinance passed last summer that bars individuals convicted of certain sex offenses from living in exclusion zones that encompass much of the city.
The ordinance does not distinguish between individuals who re-offend or bother their neighbors, and those who do not, the ACLU said in a news release issued this afternoon.
In 2001, Hagan was accused of sexual assault as a result of sexual contact with a 15-year-old. Hagan, 18 at the time of the alleged offense, pled guilty to a lesser crime in exchange for a reduced sentence. He served time in prison, during which he completed sex offender treatment. Hagan is not on parole or probation, and is classified “low risk” to re-offend.
After his release, Hagan attended community college, started a contracting business, and met and married his wife, Amy. He, his wife, and their two children moved to Barre this spring, not knowing of the residency restrictions. The family does not live in public housing, but in a privately owned apartment that they rent.
Even though Hagan has been a law-abiding citizen in Barre, the city notified him on April 23 that he had to move out of the apartment or face daily fines beginning next week. The ACLU’s lawsuit against the city includes a request for a preliminary injunction to prevent the city from fining Hagan. ..News Source.. by Times Argus
April 9, 2009
VT- Inmate challenges Rutland sex offender ordinance
4-9-2009 Vermont:
The man convicted in a series of Rutland trash bin fires has challenged Rutland's sex offender residency ordinance.
James Oney, 37, an inmate at the South Burlington prison, filed a lawsuit in Rutland County Superior Court, though court officials said they could not release the complaint because not all parties had been served as of Wednesday afternoon.
Oney is serving time for arson convictions following a long string of fires in 2006. In 1991, he had been convicted of lewd and lascivious conduct with a child.
Rutland's law forbids a convicted sex offender from living within 1,000 feet of a school, playground or day-care facility, putting almost the entire city off-limits. Barre also has such an ordinance, and other communities have discussed similar measures.
The law exempts offenders already living in one of the buffer zones when it took effect. Oney had a residence in Rutland at the time of his arrest but was in prison when the law took effect. It was unclear Wednesday what role the residency issue might play in the case but it appears it would block him moving back into his home.
(eAdvocate Post)
Vermont Defender General Matthew Valerio, who oversees the Prisoners Rights Office, said Oney was one of a couple inmates who filed the action representing themselves. He said they were referred to the PRO.
"We'll be ultimately receiving that paperwork and likely revising the complaint," he said. "They're not lawyers."
Valerio said his office has been preparing for the case.
"I know we have done all of the research regarding a challenge," he said. "It was only a matter of time before one of them was challenged. … The bottom line is there are constitutional issues when you impact someone's ability to live in the community."
While such ordinances have been upheld in some states and struck down in others, Valerio said they have yet to be put to the test in Vermont. The fundamental issue, he said, is whether the state has granted Rutland the authority to adopt such restrictions.
"I don't know the answer yet, but I'm sure we'll find out," he said.
Valerio also pointed to a section of the new sex offender law approved by the Legislature, which discourages such ordinances. While the language was nonbinding, Valerio said it could still play a role in a court case.
"We might argue there's a clear policy choice that's being advocated by the Legislature that might override some of these ordinances," he said.
American Civil Liberties Union of Vermont executive director Allen Gilbert said he has been waiting for such a lawsuit to appear.
He said the ACLU may offer amicus briefs on the case, and that the law has problems with the First, Fifth, Eighth and 14th amendments as well as Article 1 of the Constitution.
Valerio and Gilbert also argued that such laws just don't work, pushing problems around and driving offenders underground, where they become harder to track.
"If (residency restrictions) are so ineffective, then why are judges and the DOC imposing them?" Rutland Mayor Christopher Louras argued. "If it's good enough for DOC I see no reason why it shouldn't be employed by municipalities."
Louras made the comment at around midday, but could not be reached later in the day with questions on the legal issue.
Oney's 1991 conviction was for inappropriately touching a 10-year-old girl. He later got into trouble for failing to follow a treatment program. ..News Source.. by Gordon Dritschilo Staff Writer
March 14, 2009
VA- Fourth Circuit reverses set of federal convictions under SORNA
3-14-2009 Virginia:
From Sentencing Law and Policy:
A split Fourth Circuit panel this afternoon reversed a set of convictions under the federal sex offender registration laws. The majority opinion in US v. Hatcher, No. 07-4839 (4th Cir. March 13, 2009), starts this way:
In these consolidated appeals, William T. Hatcher, Richard Dean Hinen, Gregory V. Roberts, and John Edward Sawn appeal their convictions. Each of the Appellants was convicted of knowingly failing to register or update their registration as required by the Sex Offender Registration and Notification Act ("SORNA"), in violation of 18 U.S.C. § 2250(a) (2006). The Appellants argue that SORNA is unconstitutional because it is not a valid exercise of congressional authority and because it violates the non-delegation doctrine, the Ex Post Facto Clause, and the Due Process Clause of the Fifth Amendment. However, we need not reach these constitutional questions because we find that, as a matter of statutory interpretation, SORNA’s registration requirements did not apply to the Appellants at the time they committed the acts giving rise to their indictments. Therefore, we must reverse the convictions and vacate the sentences imposed in connection with those convictions.
December 30, 2008
CA- Court tosses sex offender's 28-year prison term (for Failure to Register)
12-30-2008 California:
SAN FRANCISCO—A federal appeals court has ruled that a convicted sex offender's 28-year prison sentence for failing to properly update his home address with authorities was too harsh.
The 9th Circuit Court of Appeals in San Francisco ordered a lower court to reconsider the punishment of Cecilio Gonzalez. He was handed the lengthy term under California's three-strikes law, which requires a minimum prison sentence of 25 years after a third violent or serious felony conviction.
Gonzalez had failed to check in with authorities five days after his birthday. Sex offenders are required to update authorities annually of their home addresses.
The appeals court said that failure to update his Burbank address was a technical violation and didn't count as a third strike. ..News Source.. by Mercury News.com
Decision available in our SO-News Group "Files" area: Gonazlez -v- Duncan
December 28, 2008
SD- Court's ruling leads to revamping juvenile sex offender law
See earlier: Court says sex registry law unfair to juveniles
12-28-2008 South Dakota:
SPEARFISH -- The 2009 South Dakota Legislature will be asked to change the state's juvenile sex offender laws because of a November ruling by the South Dakota Supreme Court.
The court said in a Nov. 5 decision that the current system for registering juvenile sex offenders is unconstitutional and violates the equal protection clause. The ruling centers on a case involving a 15-year-old Belle Fourche juvenile who admitted to committing two first-degree rapes.
Spearfish attorney Staci Reindl defended the boy, who was ordered to register as a sex offender for the rest of his life.
Reindl said she appealed that ruling because it is out of line with adult sex offender laws.
Adult offenders, through suspended imposition of sentence or by petitioning the circuit court, can have the registration requirement lifted. The statute that required the sex offender registration for juveniles did not offer an "out" of the lifetime registration requirement, Reindl said.
The Supreme Court's ruling has had a significant effect on the state's juvenile sex offender system, according to South Dakota Attorney General Larry Long.
"We are in the process of creating remedial legislation in fixing the statutes," Long said. "We are also sorting out which juveniles would be eligible to come off the registry." Long said there are approximately 45 juvenile sex offenders who would have to be removed from the list.
Reindl said there are going to be other issues related to subsequent convictions of people for failing to register although they should not have been on the list at all.
"The ripple effects are bigger than any of us contemplate right now," she said.
Reindl said her motivation for pursuing the case to the Supreme Court was in the interest of her client, who would have been branded for life, although adults have a way to get off the sex offender registry.
"When he's 18 or 19 or 21 -- whenever he is going to get a job -- there will be a tangible impact from this ruling," Reindl said.
Reindl blamed far-reaching 2006 federal guidelines for putting pressure on states for lifetime sex offender laws. "I feel the federal legislation, which includes the Jacob Wetterling Act and the Adam Walsh Act, has pressured states into drafting laws for lifetime sex offender registration. The new acts do not match up with existing laws in South Dakota, which were drafted in 1997."
She said these laws can make people feel secure, but sex offender registration laws do not protect the public from convicted violent criminals who aren't required to register.
"The Adam Walsh Act is far-reaching and broad, but does it really protect children from legitimate offenders who are a risk? A protective net could be a tool in this cause, but it's not a perfect solution," she said.
Reindl plans to participate in the 2009 legislative process through the state bar association and the defense bar association to change the laws. ..News Source.. by Tim Velder, Lawrence County Journal staff
December 23, 2008
IN- Sex registry law not retroactive (Adam Walsh Act)
Note: Read this decision carefully as the article title is somewhat misleading. In essence the decision says, one cannot be charged with "failure to register" TODAY (see Dixson's circumstances) if they moved to Indiana BEFORE AWA took effect (as he did). This decision is not applicable everywhere, but can be presented as persuasive under similar circumstances as outlined in the decision, then that judge will decide for that jurisdiction.
12-23-2008 Indiana:
A federal appeals court in Chicago ruled Monday that an enhanced federal sex offender registry law cannot be applied to those who violated the law before it took effect.
The ruling was good news for Valparaiso-based attorney Bryan Truitt and his client, Marcus Dixon, who will be released from custody four years earlier than expected.
The ruling also could have a ripple effect on as many as 1,000 similar cases across the country, Truitt said.
"This thing could have a nationwide impact," he said.
Dixon was found guilty a year ago of failing to register as a sex offender when he cut an electronic monitoring bracelet off his ankle and moved from South Carolina to Michigan City during May 2006. He was sentenced to 55 months in prison under the enhanced penalties of the Sex Offender Registration and Notification Act, which took effect a few months after his offense.
The act requires sex offenders to keep their registration current no matter where they live and carries a potential sentence of up to 10 years, as compared to 90 days under South Carolina law and up to one year under the former federal law.
The 7th Circuit Court of Appeals did not go so far as to uphold Truitt's challenge to the constitutionality of the federal registry law. Truitt had argued in part that the law illegally treads on rights reserved for the states. ..News Source.. by BOB KASARDA
See: 7th Cir Court of Appeals USA -v- Dixon and Carr
December 12, 2008
UT- Part of Utah sex registry to be removed
This is the day of interesting decisions, my Commentary to follow.
12-12-2008 Utah:
Utahns looking at the state's online sex offender registry will soon have a tougher time learning about the type of victim targeted by an offender.
The Utah Supreme Court on Friday ruled the Department of Corrections must remove information published about the gender and age classification of an offender's victims under a "target" section on the registry web site. The justices said part of a state law requiring target information on the site violates an offender's right to due process, implying they are currently dangerous without providing a hearing for them to rebut the claims.
Friday's ruling stems from a 2005 criminal case involving Steven Arthur Briggs' refusal to register as a sex offender after he was released from prison in 2002. He was convicted of not registering and later appealed on the grounds that the registration statute was unconstitutional.
The high court upheld the conviction and legal provisions requiring publication of prior convictions, current address, appearance and other similar information. But the justices also found a flaw in the target information.
"Even if the DOC derives the listed offender's primary target by reference to the offender's past victims, the label is troubling in that it implies that the offender is presently focused on repeating past crimes with similar victims," the court stated. "Anyone reading the registry would likely conclude that the offender's primary target is the DOC's prediction regarding the offender's next victim."
Briggs' profile lists "female" as the gender of his target victim and "juvenile" as the age classification.
A disclaimer on the sex registry states that posted information does not imply offenders will commit a specific crime in the future. However, "it intimates that the offenders will commit some kind of crime in the future," the high court ruled.
Prosecutor Laura Dupaix said Friday the ruling means the state will have to remove the target information from its Web site and may not post similar information unless the offender is given notice and allowed a hearing to rebut the claims. Since Utah does not offer such hearings the state will ultimately have to look at conducting them in the future or ask the legislature to tweak the statute, she said.
The Attorney General's Office and Briggs' lawyers have two weeks to file a petition for a rehearing in the case. If no appeals are filed, the ruling will be remitted back to the district court for enforcement, Dupaix said. ..News Source.. by Jason Bergreen
Convicted sex offender wins partial victory from Utah Supreme Court
12-12-2008 Utah:
The Utah Supreme Court ruled Friday that a man who was found guilty of sexually abusing a 9-year-old girl 22 years ago was properly convicted in a subsequent case for failing to register as a sex offender for two years after he got out of prison.
However, the high court agreed with the man that he has been denied procedural due process under the Utah law regarding registration that requires the Department of Corrections (DOC) to identify the man's primary and secondary targets, which suggests he is still dangerous.
Steven Arthur Briggs was convicted of sexually abusing the child in 1986 and spent 15 years in prison. Prior to his release in 2002, Briggs would not sign paperwork to register as a sex offender.
He was later charged with failing to register as a sex offender between 2003 and 2005 and was convicted, which netted a two-year jail term.
Briggs then appealed his case and argued that Utah's sex offender registry unfairly labels all sex offenders as predators even when they have had no history of repeat crimes — which subjects them to such things as public humiliation, possible physical danger and discrimination in housing and employment. Briggs said publishing this information on the Internet-linked registry without a hearing before a judge to prove he is not a continuing danger who is likely to commit another similar crime violates Briggs' constitutional right to due process. ..News Source.. by Linda Thomson, Deseret News
December 11, 2008
MO- John Doe, Appellant v. Honorable Matt Blunt, et al., Respondents.
6-12-2007 Missouri:
Opinion
Supreme Court of Missouri
Case Style: John Doe, Appellant v. Honorable Matt Blunt, et al., Respondents.
Case Number: SC87786
Handdown Date: 06/12/2007
Appeal From: Circuit Court of St. Louis County, Hon. Thea A. Sherry
Counsel for Appellant: Brian L. Harvell and Paul H. Schramm
Counsel for Respondent: Michael Pritchett, Bart A. Matanic, Shawn R. McCall, R. David Arthur II
Opinion Summary:
John Doe pleaded guilty to the public display of explicit sexual material in May 2004, three months before a law took effect requiring those convicted of such a charge to register as a sex offender pursuant to section 589.400.1(2), RSMo Supp. 2005. When Doe failed to register, he was charged with violating probation. He sought a judgment declaring he was not subject to the new registration requirement. The trial court overruled Doe's motion for summary judgment. He appeals.
REVERSED. JUDGMENT ENTERED FOR DOE.
Court en banc holds: When it entered its judgment, the trial court did not have the benefit of Doe v. Phillips, 194 S.W.3d 833 (Mo. banc 2006), in which this Court held that a law requiring an individual to register as a sex offender for an offense that occurred prior to the registration law's effective date was a retrospective law in violation of article I, section 13 of the state constitution. Here, because Doe had no obligation to register at the time he pleaded guilty, the constitution prohibits requiring him to register now under the new law.
Citation:
Opinion Author: PER CURIAM
Opinion Vote: REVERSED. JUDGMENT ENTERED FOR DOE. All concur.
Opinion:
Overview
Doe pleaded guilty to the public display of explicit sexual material in violation of section 573.060 in May 2004.(FN1) At the time Doe pleaded guilty, the duty of registering as a sex offender did not apply to this offense. In August 2004, the law changed so that those convicted of public display of explicit sexual material were required to register as a sex offender. Section 589.400.1(2), RSMo Supp. 2005. Subsequently, a probation violation report was filed against Doe for failing to register.(FN2)
Doe filed this declaratory judgment action to determine his obligation to register as a sex offender. He argued he was not subject to the new registration requirement because to apply the new statute to him would violate the prohibition on laws retrospective in operation, Mo. Const. article I, section 13. Not having the benefit of this Court's opinion in Doe v. Phillips, 194 S.W.3d 833 (Mo. banc 2006), the trial court overruled Doe's motion for summary judgment. Phillips controls. The trial court judgment is reversed, and judgment is entered in favor of Doe. Rule 84.14.
Discussion
In Phillips, the Court determined that a law requiring registration as a sex offender for an offense that occurred prior to the registration law's effective date was retrospective in operation in violation of Mo. Const. article I, section 13. As the Court explained, a retrospective law is one that creates a new obligation, imposes a new duty, or attaches a new disability with respect to transactions or considerations already past. It must give to something already done a different effect from that which it had when it transpired. Doe v. Phillips, 194 S.W.3d 833, 850 (Mo. banc 2006). The obligation to register by its nature imposes a new duty or obligation. Id. at 852.
The same is true in this case. When he pleaded guilty, Doe had no obligation to register; his duty to register arose from a change in the law. Because the new law imposed a new duty, it is a retrospective law prohibited by Mo. Const. article I, section 13.
Conclusion
The trial court's judgment is reversed, and judgment is entered for Doe. Rule 84.14.
All concur.
Footnotes:
FN1. All statutory references are to RSMo 2000 unless otherwise specified.
FN2. The decision whether to revoke probation has been deferred pending resolution of this case. Because of the possibility of probation revocation, the issue of Doe's duty to register is not moot. ..News Source.. by
Doe v. Phillips, 194 S.W.3d 833 (Mo.2006) (Appeal of Injunction)
The underlying case which issued the PERMANENT INJUNCTION.
4-1-2008 Missouri:
Doe v. Phillips
The Court of Appeals of the State of Missouri Western District (Fed Ct)
April 1, 2008
JANE DOE I, ET AL., RESPONDENTS
v.
THOMAS PHILLIPS, ET AL., DEFENDANT,
JAMES KEATHLEY, APPELLANT.
Appeal From: Circuit Court of Jackson County, The Hon. Jon Reginald Gray, Judge.
Counsel for Appellant: Michael Eugene Pritchett.
Counsel for Respondent: Arthur Benson and Jamie K. Lansford.
SYLLABUS BY THE COURT
The Superintendent of the Missouri State Highway Patrol appeals from an injunction that prohibits the publication of photographs and identifying information of sex offenders whose convictions predate the enactment of Missouri's Sex Offender Registration Act.
AFFIRMED IN PART, REVERSED IN PART AND REMANDED.
Division One holds: The injunction is proper to the extent it prohibits the publication of photographs and identifying information obtained from sex offenders who were required to register under the act's provisions that were recently declared unconstitutional. However, the injunction was overbroad in restricting the superintendent's use of photographs and information obtained from other sources. The judgment is reversed and remanded to the circuit court to limit the injunction to photographs and information the superintendent obtained as a result of the act's registrations. In all other respects, the judgment is affirmed.
The opinion of the court was delivered by: Lisa White Hardwick, Judge
Opinion Vote: AFFIRMED IN PART, REVERSED AND REMANDED IN PART.
Smart, J, and Welsh, Sp. J., concur
Opinion:
The Circuit Court of Jackson County issued a judgment enjoining the Superintendent of the Missouri State Highway Patrol from publishing photographs and identifying information of registered sex offenders whose convictions predate the July 1, 1995, enactment of Missouri's Sex Offender Registration Act (SORA), Section 589.400 et seq., RSMo. The Superintendent appeals from the permanent injunction. For reasons explained herein, we affirm in part, reverse in part, and remand the cause to the circuit court with instructions to limit the scope of the injunction.
Factual and Procedural History
Eleven plaintiffs, who had been convicted of crimes that required them to register as sex offenders, filed suit against the Superintendent of the Missouri Highway Patrol and other defendants*fn1 seeking a declaration that SORA was unconstitutional under the Missouri Constitution. In January 2005, the circuit court upheld SORA in all respects. The plaintiffs appealed to the Missouri Supreme Court.
In ruling on the case in 2006, the Supreme Court generally upheld SORA but found that application of the registration requirements to persons who were convicted prior to the January 1, 1995, enactment of the law was a violation of the Missouri Constitution's prohibition on retrospective laws. Doe v. Phillips, 194 S.W.3d 833, 852 (Mo. banc 2006); Mo. Const. art. I, section13. The case was remanded to the circuit court.
On remand, the plaintiffs who qualified as pre-1995 offenders moved for an order prohibiting the defendants from using the photographs provided with their SORA registrations. The circuit court granted relief, in January 2007, by entering a permanent injunction against James Keathley, as Superintendent of the Missouri Highway Patrol, and his successors. The judgment prohibited the Superintendent from "publishing the photographs of plaintiffs on websites on the Internet[,] or otherwise disseminating such photographs ... and identifying information of persons registered under SORA whose convictions predated January 1, 1995."
The circuit court denied the Superintendent's motions to amend the judgment. On appeal, the Superintendent raises four points challenging the permanent injunction.
Standard of Review
Our review of this judgment in equity is the same as in other court-tried cases: We must affirm the trial court's decision unless it is unsupported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Systematic Bus. Servs., Inc. v. Bratten, 162 S.W.3d 41, 46 (Mo.App. 2005).
"Whether an injunction should be granted is a matter of the trial court's discretion in balancing the equities." S. Star Cent. Gas Pipeline, Inc., 190 S.W.3d 423, 432 (Mo.App. 2006). The court has broad discretion to grant relief that fits the particular facts, circumstances, and equities of the case. Id. We review a trial court's decision to grant an injunction under an abuse of discretion standard. Id. at 429.
Analysis
In his first point on appeal, the Superintendent contends the circuit court erred in enjoining the publishing of photographs and other identifying information about the plaintiffs because such dissemination does not violate the Missouri Constitution's ban on retrospective laws. In Doe, the Supreme Court defined a retrospective law as one which "creates a new obligation, imposes a new duty, or attaches a new disability with respect to transactions or considerations already past. It must give to something already done a different effect from that which it had when it transpired." 194 S.W.3d at 850 (quoting Squaw Creek Drainage Dist. v. Turney, 138 S.W. 12, 16 (Mo. 1911)). Based on this definition, the Superintendent argues that publication of the plaintiffs' photos in no way imposes an obligation or duty on sex offenders who are now exempt from SORA's registrations requirement and, therefore, does not fall within the conduct proscribed by the Doe decision.
The Superintendent's argument misses the point of the injunctive relief granted. The circuit court did not enjoin the dissemination of the plaintiffs' photos because such conduct directly violated the constitution; rather, the court concluded that the dissemination was improper because the photos were obtained as a result of an unconstitutional statutory provision. The circuit court stated:
The continued use of said photographs by Defendant James F. Keathly constitutes the continuation of an aspect of the plaintiffs' registration that was held unconstitutional. Defendant would not have the photographs of plaintiffs but for their compelled compliance with a provision of SORA that has now been determined to be unconstitutional.
By restricting use of the photos, the circuit court reasonably exercised its discretion in attempting to fully address the wrongs suffered by the pre-1995 offenders, who were unlawfully required to register under SORA.
The basis of equity "is the doing of complete, essential, and perfect justice between all the parties without regard to form, and its object is the prevention of injustice." Landmark Bank v. Ciaravino, 752 S.W.2d 923, 927 (Mo.App. 1988) (quoting State Savings Trust Co. v. Spencer, 201 S.W. 967, 969 (Mo.App. 1918)). In granting equitable relief, the court should do "complete justice by enjoining the whole of the unlawful proceeding." Joe Dan Mkt., Inc. v. Wentz, 20 S.W.2d 567, 569 (Mo.App. 1929). Here, the circuit court recognized that eliminating the registration requirement only partially resolved an injustice for pre-1995 offenders. To ensure complete justice, equity required eliminating access to information obtained during the unconstitutional registration process. The injunction was proper to the extent that it prohibited the Superintendent from using photographs and identifying information that were unlawfully acquired. Point I is denied.
Point II offers a related argument. The Superintendent contends the injunctive relief was too broad in that it also prohibited the dissemination of plaintiffs' photographs and identifying information obtained from sources other than the SORA registrations. In Doe, the Supreme Court expressly "reject[ed] the claim that publication of true information" about the pre-1995 offenders would necessarily violate the constitutional ban on retrospective laws. 194 S.W.3d at 852. The Supreme Court, in effect, recognized that defendants should not be precluded from using all information in their possession concerning the plaintiffs, particularly when such material was otherwise available in the public sector.
We agree that the circuit court abused its discretion in extending the injunction to photographs and information the Superintendent acquired from non-SORA sources. The broad scope of relief impermissibly interfered with the Superintendent's lawful conduct and did nothing to protect the pre-1995 offenders from the negative consequences of the unconstitutional registration requirements. Despite the court's considerable authority to fashion equitable remedies, its exercise of discretion must not impede the proper action of those against whom relief is sought. S. Star Cent. Gas Pipeline, 190 S.W.3d at 432. Point II is granted.
In Point III, the Superintendent argues that the circuit court erred in not expressly limiting the injunction to the dissemination of photographs and identifying information regarding pre-1995 offenders who were convicted or pleaded guilty in Missouri. The Superintendent asserts that persons convicted in other jurisdictions voluntarily accepted SORA's registration requirements by moving to Missouri and, therefore, were never compelled to comply with the unconstitutional provisions.
This issue was not specifically litigated at trial and, from our review of the record, appears to have been raised for the first time in a post-trial motion challenging the injunction. The circuit court overruled the post-trial motion without comment. Moreover, the record is inadequate to determine to what extent this issue applies to the parties in this case. It appears that only one of the plaintiffs was convicted outside of Missouri, but the record fails to show when he moved to Missouri, or if the move was prior to or following the January 1, 1995 effective date for SORA in Missouri. Because the record on appeal is inadequate for determination of this issue, Point III is denied.
In Point IV, the Superintendent contends the judgment is ambiguous and requires clarification with regard to what classes of identifying information are covered by the permanent injunction. The judgment ordered the Superintendent to "cease and desist from publishing photographs and identifying information of persons registered under SORA whose convictions predated January 1, 1995." Because the judgment did not specify that "all" identifying information was included in this prohibition, the Superintendent argues the circuit court must have contemplated the retention of some minimal amount of information. The Superintendent suggests the injunction should be interpreted to prohibit dissemination of photographs, dates of birth, physical descriptions, vehicle descriptions, and home and work addresses, but to exclude the use of the names of the pre-1995 offenders. He argues this interpretation is consistent with the relief requested by the plaintiffs, in that they sought only a prohibition on the publication of their photographs procured through SORA registration.
"An injunction must clearly and specifically describe the acts and things enjoined so as not to be subject to misunderstanding and confusion by those against whom it is directed." City of Bridgeton v. City of St. Louis, 18 S.W.3d 107, 115 (Mo. App. 2000). The injunction at issue satisfies this requirement by restricting the use of photos and other information by which the plaintiffs could be identified. The Superintendent's belief that the phrase "identifying information" does not include the names of the plaintiffs simply strains credibility. We are unable to imagine a single class of information more identifying than that of a person's name.
Although the plaintiffs did not specifically request a restriction on the use of identifying information, their petition sought "such further legal and equitable relief as this Court deems appropriate." Similar language was found sufficient inBollinger County v. Ladd, 564 S.W.2d 267, 273 (Mo. App. 1978), to warrant injunctive relief beyond the scope of the pleading. The circuit court was within its broad discretionary power in formulating the injunction to fit the facts before it and prevent injustice. The court is not constrained by the request of the parties when granting relief in equity.Id. Point IV is denied.
Conclusion
The judgment is reversed with regard to the scope of the permanent injunction. The cause is remanded to the circuit court with instructions to limit the injunction to prohibit the Superintendent from publishing photographs and other identifying information about the pre-1995 offenders that was obtained as a result of their SORA registrations. In all other respects, the judgment is affirmed.
------------------------------
Opinion Footnotes
------------------------------
*fn1 At the time the petition was filed, Roger Stottlemyre was Superintendent of the Missouri Highway Patrol. The current Superintendent is James Keathley. Other defendants named in the petition were Thomas Phillips as the Jackson County Sheriff and Michael Sanders as the Jackson County Prosecutor. ..News Source.. by
November 21, 2008
KY- Kentucky Supreme Court Looks At Sex Offender Law
11-21-2008 Kentucky:
Kentucky's law that bans sex offenders from living within 1,000 feet of schools, day care facilities, parks, or playgrounds is being challenged in the state's Supreme Court.
The case is being brought on behalf of an Elsmere man and 11 other defendants who were cited by police in Kenton County.
Their residences were legal until the restrictions changed. The new law has no grandfather clause, and a Kenton County judge pointed out it also does not adequately define what a playground is.
There is no timetable for the justice's decision. The ruling is likely to be appealed to the U.S. Supreme Court. Similar cases are being heard in Ohio and Iowa. ..News Source.. by Doug Lillibridge
November 9, 2008
Young lawyer makes his mark
See earlier article and court decision:
11-9-2008 Georgia:
Public defender wins state Supreme Court case
Not often does a defense attorney less than a year removed from law school get part of a controversial law thrown out by the Georgia Supreme Court.
But that’s what happened after 26-year-old Hall County public defender Adam Levin, with help from colleague Brett Willis, argued the case of a homeless sex offender in front of the state’s highest court.
The case of William James Santos prompted the state Supreme Court last week to declare Georgia’s sex offender registration law as it applies to the homeless "constitutionally vague" and forced lawmakers to revisit how people without permanent addresses can comply with the law.
For Levin, who admits he still is adjusting to his role as public speaker, the prospect of arguing in front of the seven justices in Atlanta was nerve-inducing, but a chance he nevertheless could not resist.
"I just wanted the experience of getting up there," Levin said.
Despite Levin having tried only a handful of cases, Northeastern Circuit Public Defender’s Office Director Brad Morris gave him the job of arguing the Santos case over more seasoned lawyers in the public defender’s office, whose 13 staff attorneys represent poor criminal defendants in Hall and Dawson counties.
"I pestered Brad about letting me take a shot at it, and he was willing to take the risk and let me get my feet wet," Levin said.
Less than a year earlier, Morris was helping Levin adjust his tie for his swearing-in to the bar.
Levin came to the public defender’s office in May 2007 and passed the bar the following October after his graduation from Georgia State University School of Law. He earned an undergraduate degree in music engineering from the University of Miami in 2004, but decided "I was not a very good musician."
"I just didn’t have the ear for it, so as soon as I could I applied to law school," he said.
Levin has legal roots. His father, Jay Levin, is a partner with Powell Goldstein, a large corporate law firm in Atlanta.
But Levin chose the often thankless work of the public defender over the better-paying jobs some of his law school classmates took at places such as prestigious Atlanta firm King and Spalding.
Levin said he discovered the appeal of criminal defense work while in law school.
"The work was interesting, the people were interesting, and I think there’s just something inherently interesting about the underdog, which is who we mostly work with," Levin said. "I’ve always had something for the underdog."
Levin was assigned the Santos case through an alphabetical system and soon found what he said were "some interesting issues." Mainly, how does a sex offender without a home comply with a law that says they must register their place of residence?
The state Supreme Court last April agreed to hear the pretrial appeal and Levin and Willis prepared their legal brief. Levin credits his more-experienced colleague Willis with much of the work compiling the brief and lining up help from old law school classmates and professors to prepare for oral arguments.
"I was sort of spitting out the ideas, and Brett crafted it," Levin said.
Morris said Levin’s modesty aside, the young attorney deserves the most credit.
"I think our office has been fortunate in getting people who are focused in what they’re doing, and who understand that only when you have strong, hard-working advocates is the Constitution protected," Morris said. "Adam, along with a lot of other people here, could have much more lucrative positions elsewhere, but they believe in what they’re doing, and this case is a good example of the work he and other people in this office are doing."
Levin eschews any notion that the big legal win so early in his career is a feather in his cap. While he knows the case was watched closely by other attorneys, he believes the court’s decision in Santos v. State is just one small part of the overriding legal controversy that surrounds Georgia’s sex offender registration requirements.
"It was just a question that everyone wanted an answer to, and our office just happened to have the case that asked the question," Levin said.
Of the outcome, Levin said, "It was satisfying, there was a sense of accomplishment. But I just felt like that was the correct result. That was what should happen." ..News Source.. by Stephen Gurr
November 6, 2008
SD-- Court says sex registry law unfair to juveniles
11-6-2008 South Dakota:
PIERRE, S.D. (AP) - The South Dakota Supreme Court has ruled that juvenile sex offenders are treated unfairly under the state's sex offender registry law.
South Dakota law requires offenders to register with law enforcement agencies after they are released from jail or prison. The information is made public to protect people from sex offenders.
The high court says the law in unconstitutional in the way it treats juvenile offenders more harshly than adults. That's because juveniles do not have the same chance to get their names removed from the sex offender registry. ..News Source.. by KCAU-TV9
IN THE SUPREME COURT OF THE STATE OF SOUTH DAKOTA
* * * *
THE PEOPLE OF THE STATE OF SOUTH
DAKOTA IN THE INTEREST OF Z.B., A MINOR CHILD
AND CONCERNING A.B. AND H.B., RESPONDENTS.
* * * *
APPEAL FROM THE CIRCUIT COURT OF
THE FOURTH JUDICIAL CIRCUIT
BUTTE COUNTY, SOUTH DAKOTA
STACI L. REINDL, FRANCY E. FORAL of
Reindl Law Attorneys for appellant Z.B.
-v-
LAWRENCE E. LONG, Attorney General
JOHN M. STROHMAN,Assistant Attorney General Attorneys for appellee
Z.B. admitted in juvenile court to committing two first degree rapes. At the time of these offenses, he was fifteen. He was court ordered to register as a sex offender. South Dakota law requires that Z.B. remain on the sex offender registry for life. Adults who commit the same offense may be able to have their names removed from the registry if they obtain a suspended imposition of sentence. There is no equivalent opportunity for juvenile offenders like Z.B. Accordingly, under the Equal Protection Clauses of the United States Constitution and the South Dakota Constitution, Z.B. and similarly situated juveniles are denied equal protection. We reverse.
For the remainder of the opinion:
October 31, 2008
NV- State appeals sex offender law ruling
See earlier story:
10-31-2008 Nevada:
The Nevada attorney general's office will appeal a federal judge's decision that bars the state from applying a new sex offender law retroactively.
The attorney general's office filed a notice of appeal this week with the 9th U.S. Circuit Court of Appeals challenging Judge James Mahan's September decision.
Mahan ruled that a new sex offender law, Assembly Bill 579, was unconstitutional because it would punish convicted sex offenders who had paid their debt to society.
The law changes the way Nevada classifies sex offenders. Instead of categorizing them by risk to re-offend, the law categorizes sex offenders by the crime they were convicted of.
"Our mandate is to defend the laws of the state of Nevada. We will pursue that mandate," said Binu Palal, deputy attorney general.
The American Civil Liberties Union of Nevada and attorney Robert Langford challenged the law on behalf of about a dozen sex offenders.
Maggie McLetchie, staff attorney with the ACLU of Nevada, said she was disappointed with the attorney general's decision to appeal Mahan's decision. She said an appeal will be costly for the state, which is already facing budget woes. She said the ACLU has already billed the state about $140,000 in legal fees for the sex offender case.
"Our hope was to sit down and work collaboratively with the attorney general's office and legislators on this issue," she said. "There are ways to work this out and further public safety goals."
ACLU Executive Director Gary Peck said the law the attorney general's office is supporting isn't enhancing public safety. He called the appeal "a colossal waste of time, energy and money." ..News Source.. by DAVID KIHARA
October 27, 2008
GA- Court sides with sex offenders
The Georgia Supreme court opinion:
10-27-2008 Georgia:
Registration requirements ruled to be ‘unconstitutionally vague.’
The Georgia Supreme Court on Monday declared unconstitutional a provision of the sex-offender registry law, because it fails to inform the homeless who have no address how they can comply with the statute.
In a 6-1 decision, the court found that the law’s registration requirements are “unconstitutionally vague.”
The decision was a huge legal victory for William James Santos, charged in Hall County for failing to register a new address in the sex-offender registry. Because this would have been his second failure-to-register offense, he faced a mandatory life sentence.
The law, one of the harshest in the nation, requires sex offenders to provide a route or street address within 72 hours after being released from custody or moving to a new address. The law states that an offender cannot use “homeless” as an address.
Santos had lived at the Good News at Noon homeless shelter in Gainesville and correctly gave that address on the registry. But in July 2006, he was forced to leave it. For the next three months, Santos was homeless and could not give an address and comply with the statute.
In October 2006, Santos was arrested and indicted for the second offense.
Santos’ lawyer had argued that the registry law made being homeless a crime.
In its opinion on Monday, the court said the law provides no standards or guidelines that would put homeless sex offenders without a street or route address on notice of what is required of them. This leaves them to guess as to how to achieve compliance with the law’s reporting provisions, the decision said.
This lack of direction “leads to arbitrary and discriminatory enforcement,” said the opinion, written by Justice Hugh Thompson.
“Our decision renders unconstitutional the address registration requirement as applied to homeless sex offenders, who, like Santos, possess no street or route address for their residence,” Thompson wrote.
The justice added that the court was “by no means holding that all homeless sex offenders are exempt from the statute’s reporting requirements.”
Justice George Carley issued the lone dissent. ..News Source.. by BILL RANKIN,
The Atlanta Journal-Constitution
October 24, 2008
AR- Court: Sex offender not due hearing
10-24-2008 Arkansas:
A former Benton County sheriff’s deputy doesn’t have a constitutional right to contest his sexual-offender status in person before a governor-appointed panel, the Arkansas Supreme Court ruled Thursday.
Eric Burchette pleaded guilty to one count of fourthdegree sexual assault and two counts of sexual indecency with a child in 2004 and was sentenced to six years in prison.
After entering prison, Burchette was classified as a Level 3 sexual offender — the second-most serious classification — partly on information in police reports and witness statements that described more serious, violent acts that prosecutors never pursued.
In his appeal, Burchette argued that he was entitled to a hearing before the seven-person Sex Offender Assessment Committee to contest his risk assessment and to assert his innocence to the uncharged acts.
During oral arguments this month, his attorney, Jeff Rosenzweig, argued that a Level 3 assessment would severely hinder where Burchette can work, live and visit, in effect “criminalizing” his future. For that reason, he deserved the chance to argue his case in person before the board, Rosenzweig told the court. Burchette deserved a chance to plead his case before the “ultimate fact-finder,” Rosenzweig argued.
Currently, an appeal to the Sex Offender Assessment Committee is handled by one member, who then recommends to the full board whether an adjustment in risk level is necessary.
Justice Robert L. Brown wrote that the system in place is legal and works well.
The Sex Offender Screening and Risk Assessment program conducts the interview, reviews the evidence and assigns the classification, Brown wrote, and its decision can be appealed to the committee and to courts.
“We hold that Burchette had a meaningful opportunity to be heard,” Brown wrote.
Justice Annabelle Clinton Imber didn’t participate in the ruling.
Burchette, 27, was released on parole in early October, according to prison records.
At the Supreme Court, the case is 07-408, Eric Burchette v. Sex Offender Screening and Risk Assessment Committee. ..News Source.. by CHARLIE FRAGO
September 19, 2008
FL- Life sentence overturned for probation violation
9-19-2008 Florida:
PANAMA CITY — The First District Court of Appeal has overturned a circuit judge's sentence of a man who violated probation in a rape case because he didn't have $10.
Judge James R. Wolf wrote in the three-judge decision released this week that two of Johnny Easterling's probation violations that resulted in a life sentence were not willful and substantial violations. They sent Easterling's case back to Circuit Judge Allen Register's court in Washington County for "reconsideration of the (probation) revocation and sentencing decisions."
In 2005, Easterling entered into a plea agreement on three charges of sexual battery on children younger than 12, felony charges punishable by life in prison. He was put on two years of community control followed by 13 years probation. He was designated a sexual offender, meaning there were restrictions on where he could live and work.
He also had to register as a sexual offender and get an identification card with that label. The card costs $10, but Easterling didn't have the money when he applied for the card. He left the office and went to Bonifay to borrow the money from a friend. That trip, however, was not approved by his probation officer and constituted a violation of his community control.
Because Easterling did not immediately get the card, he also was charged with failing to register.
Register sentenced Easterling, 23, to three concurrent life sentences in July 2007, based on the probation violations.
Public Defender Herman Laramore said at the time Register was required by law to give Easterling the life sentences.
But Wolf wrote that Register erred by finding Easterling "willfully and substantially" violated the terms of his probation.
"The uncontradicted evidence demonstrates (Easterling) made a good faith effort to register and obtain a license," Wolf wrote. "The only reason he did not complete the registration was because he lacked $10 to obtain a new license. In fact, (Easterling) obtained the license after attempting to comply with the requirement three days later, as soon as he obtained the necessary funds. Merely because he did not take the wisest course of action, we cannot say the failure to register was willful and substantial." ..News Source.. by David Angier / News Herald Writer
September 13, 2008
NV- EDITORIAL: Upholding our rights
9-13-2008 Nevada:
Even sex offenders are entitled to protections of Constitution
Sex offenders are an unsympathetic lot, and deservedly so. But if the government is allowed to trample and shred the constitutional rights of even the tiniest, most shunned segment of the population, how long before authorities decide to take away yours?
U.S. District Judge James Mahan took the state of Nevada off that slippery slope Wednesday when he prevented the retroactive application of a law that would have reclassified more than 2,000 registered sex offenders.
The statute, approved last year to meet the standards of the federal Adam Walsh Act, aimed to reclassify sex offenders based on the crimes they've committed, rather than their perceived risk of re-offending.
As a result, hundreds of Tier 1 offenders who've completed prison terms, stayed out of trouble for years and been considered no threat to public safety suddenly would have been labeled Tier 3 offenders. Their photos and personal information would have been posted on the state's sex offender Web site, they would've had to check in with authorities every 90 days, and a few would have had to wear GPS monitoring devices. Many feared losing their livelihoods and their rebuilt reputations.
Judge Mahan correctly ruled that applying the law retroactively violated the Constitution's due process and double jeopardy protections. A decision on whether the law can be constitutionally applied to future convictions is pending in state court.
"We know that it's a brave thing to do to make a decision that affirms the rights of sex offenders," said ACLU of Nevada staff attorney Maggie McLetchie, whose organization brought the challenge to federal court on behalf of several plantiffs.
"It's about the limits on the power of government."
Amen. Aside from the constitutional concerns, there were legitimate public safety issues as well. How could the law-abiding public be expected to measure the risks to themselves and their families if, overnight, the number of Tier 3 sex offenders in Nevada grew from about 160 to more than 2,500? Would their children really be in danger if one day their neighborhood was deemed free of dangerous molesters and rapists, but the next day the state said there were two on the same street?
The ACLU and the federal court deserve a lot of credit for protecting not just the rights of sex offenders, but of all citizens. ..Opinion Source.. by Review Journal.com
