Sex Offender Registry ruled out 

Federal District Court Judge Donald Molloy authored a potentially historic ruling June 11 when he determined that a key component of the federal Sex Offender Registration and Notification Act (SORNA) violates constitutional interstate commerce protections.

The opinion of the Missoula federal judge invalidates a critical enforcement mechanism of SORNA, which requires convicted sex offenders to submit to local registries when entering another state. Under the challenged law, neglecting to do so constitutes a felony offense.

The case involves 58-year-old West Virginian Bernard Waybright, accused by Montana law enforcement of illegally failing to register during a series of occasional visits. Waybright was convicted of a misdemeanor sex offense in his home state in 2004.

Federal defender John Rhodes sent off a volley of legal arguments to dismiss the case, hoping one would resonate with Molloy.

“I felt that was the one to go with,” Rhodes says of the Interstate Commerce Clause issue, which, he explains, seemed the most interesting to the judge during a June 4 hearing.

Molloy responded by dismissing the Waybright case without prejudice—meaning prosecutors can still prosecute on different grounds—and states in a 44-page ruling that Congress overstepped its constitutional authority by making sex offenders register out of state in the first place. Unless U.S. attorneys can successfully appeal the ruling, the decriminalization of the registry provision could be used to dismiss similar cases nationwide.

Assistant U.S. Attorney Jessica Fehr reports her office is lobbying the solicitor general’s office in Washington to file an appeal with a three-judge appellate of the Ninth District Court in San Francisco. The judicial panel would review Molloy’s opinion, as well as a pair of rulings from U.S. District Court judges in Great Falls and Billings who have rejected similar arguments.

According to Rhodes, federal courts have overturned acts of Congress on the basis of the Interstate Commerce Clause three times since 1995, but not once in the 60 years before. The defense admits the odds are tough, but thinks the issue has the substance to pass the legal gamut. Since Congress adopted SORNA in 2006, the law has proven a frequent legal target, but a challenge has yet to make it to the high court.

“I think this issue is a good candidate for Supreme Court review,” Rhodes says.
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