Justices Sideline Young Sex Offender's Appeal

In other words, the original ex post facto decision no longer exists, its nullified (moot)!

6-27-2011 Washington DC:

(CN) - The 9th Circuit must dismiss an appeal of a former juvenile delinquent who contends a judge should not have ordered him to register as a sex offender since he committed his offense before passage of the Sex Offender Registration and Notification Act, the Supreme Court ruled Monday.

An unnamed juvenile male was charged in 2005 for sexually abusing another boy who was three years younger on the Fort Belknap Indian Reservation in Montana.

The abuse had occurred for about two years, since the victim was just 10 years old and his attacker was 13. In 2006, after the attacker was adjudicated delinquent, Congress enacted the Sex Offender Registration and Notification Act (SORNA), which imposes a registration requirement on sex offenders, including juveniles who have committed serious sex offenses.

A federal judge ruled in 2007 that the unnamed delinquent had violated the terms of his prerelease program, and he ordered the young man to register as a sex offender as part of his supervision "at least until" his release once he turned 21.

While appealing that requirement before the 9th Circuit in May 2008, the man turned 21. The 9th Circuit ruled a year later that the judge violated the Ex Post Facto Clause of the U.S. Constitution by applying SORNA to a juvenile delinquent who committed his offense before the act's passage.

The government appealed to the Supreme Court, but the justices noted that the former juvenile has failed to demonstrate that he is suffering a continuing injury, citing guidance from the Montana Supreme Court.

"At the time of the Ninth Circuit's decision in this case, the District Court's order of juvenile supervision had expired, and respondent was no longer subject to the sex offender-registration conditions that he sought to challenge on appeal," according to the unsigned, seven-page decision. "As a result, respondent's challenge was moot before the Ninth Circuit unless he could 'show that a decision invalidating' the District Court's order would likely redress some collateral consequence of the registration conditions."

The high court vacated the 9th Circuit's ruling and ordered the court to dismiss the appeal on remand.

Though seemingly unanimous, the ruling notes that Justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor would have remanded with instructions for the 9th Circuit to consider the issue of mootness. Justice Elena Kagan did not participate in the court's consideration or decision of the case. ..Source.. by

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US v. Juvenile Male: It’s Baaaaack!

6-19-2011 Montana:

From The Volokh Conspiracy

The government’s February 2010 cert. petition in United States v. Juvenile Male, 09–940, presents the question, “Whether application of the registration and notification provisions of the Sex Offender Registration and Notification Act (SORNA) to a juvenile who was adjudicated delinquent under the Federal Juvenile Delinquency Act before SORNA’s enactment violates the Ex Post Facto Clause of the Constitution.” (In September 2009, the Ninth Circuit, per Reinhardt, Tashima, and McKeown, held as a matter of first impression that it does. 581 F.3d 977 (9th Cir. 2009).)

In June 2010, the Court issued a short per curiam opinion taking the unusual step of certifying an issue to the Montana Supreme Court. It stated:

Before we can address that question [raised by the government’s cert petition], however, we must resolve a threshold issue of mootness. Before the Ninth Circuit, respondent challenged only the conditions of his juvenile supervision requiring him to register as a sex offender. But on May 2, 2008, respondent’s term of supervision expired, and thus he no longer is subject to those sex-offender-registration conditions. As such, this case likely is moot unless respondent can show that a decision invalidating the sex offender-registration conditions of his juvenile supervision would be sufficiently likely to redress “collateral consequences adequate to meet Article III’s injury-in-fact requirement.” Spencer v. Kemna, 523 U. S. 1, 14 (1998).

Perhaps the most likely potential “collateral consequenc[e]” that might be remedied by a judgment in respondent’s favor is the requirement that respondent remain registered as a sex offender under Montana law.(“By the time of the court of appeals’ decision, respondent had become registered as a sex offender in Montana, where he continues to be registered today.” Pet. for Cert. 29.) We thus must know whether a favorable decision in this case would make it sufficiently likely that respondent “could remove his name and identifying information from the Montana sex offender registry.” Ibid.

The Court therefore certified to the Montana Supreme Court the question whether the juvenile’s duty to remain registered as a sex offender under Montana law was contingent upon the validity of the conditions of his expired federal juvenile-supervision order that required him to register as a sex offender, or is an independent requirement of Montana law that is unaffected by the validity or invalidity of the federal juvenile-supervision conditions.

On May 17, the Montana Supreme Court answered that question by stating that “Respondent’s state law duty to remain registered as a sex offender is not contingent upon the validity of the conditions of his federal supervision order, but is an independent requirement of Montana law.” The Court discussed the matter at the June 16 Conference. The docket shows no entry for a supplemental brief from from the Solicitor General’s Office, but it is almost inconceivable to me that OSG wouldn’t have filed one. Based just on the reasoning of the certification order, this case may be moot; if the Court shares that conclusion, the Government’s petition might be headed for denial.

However, the Government might get the relief it seeks anyway, if the Supreme Court vacates the offending Ninth Circuit opinion under United States v. Munsingwear, Inc., 340 U.S. 36 (1950), because it was rendered moot before the government could obtain review. I believe it’s an open question whether Munsingwear applies in criminal cases—the Ninth Circuit held it did not on the particular facts of United States v. Tapia-Marquez, 361 F.3d 53 (9th Cir. 2004). By contrast, the en banc D.C. Circuit in United States v. Schaffer, 240 F.3d 35 (D.C. Cir. 2001) (per curiam), applied Munsingwear to vacate a conviction rendered moot during appeal by a Presidential pardon. But I’m not aware of any consensus on that issue.

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United States -v- Juvenile Male

Washington DC:

US Supreme Court Decision (09-940):
United States -v- Juvenile Male (6-7-2010)

Oral Argument:
Decided without argument.

SCOTUS wiki (Has all briefs):
Case referred to Montana Supreme court.

(From Decision: We respectfully request that the Montana Supreme Court accept our certified question. The court’s answer to this question will help determine whether this case presents a live case or controversy, and there is no controlling appellate decision, constitutional provision, or statute on point. Mont. Rule App. Proc. 15(3). We understand that the Montana Supreme Court may wish to reformulate thecertified question. Rule 15(6)(a)(iii).

The Clerk of this Court is directed to transmit to the Supreme Court of Montana a copy of this opinion, the briefs filed in this Court in this case, and a list of the counsel appearing in this matter along with their names and addresses. See Rules 15(5) and (6)(a)(iv). Further proceedings in this case are reserved pending our receiptof a response from the Supreme Court of Montana. It is so ordered.)

News:

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