ACLU v. Masto

Sex offender regulation schemes expanding the scope of notice and registration and applying retroactively, do not necessarily offend the Double Jeopardy or Ex Post Facto clauses of the Constitution.

In 2007, the state of Nevada passed Assembly Bill ("AB") 579 and Senate Bill ("SB") 471 in response to the federal government's passage of the Adam Walsh Act. The Act reduces funds for police departments that fail to comply with its sex offender regulation scheme. AB 579 changed and expanded laws governing sex offender registration and notice requirements. The ACLU and several plaintiffs brought suit in district court and won a permanent injunction against enforcement of both laws, as they would apply retroactively. The challenge to SB 471 was found moot by the Ninth Circuit, as the state's concession that it would not impose residency and movement restrictions retroactivity, effectively mooted its own appeal through voluntary action. The Ninth Circuit analyzed AB 579 under the two-step test in regards to the Ex Post Facto and Double Jeopardy clauses of the Constitution. The test first looks at whether the intent of the legislature was criminal punishment or a non-punitive regulatory scheme, and then asks if the law is punitive in purpose or effect. The Court found AB 579 to be a “civil regulatory scheme with the purpose of enhancing public safety,” and in all substantive respects, analogous to Smith v. Doe, 538 U.S. 84 (2003), which upheld similar provisions. The Court also said that several other circuits have unanimously upheld comparable laws passed in response to the Adam Walsh Act. Appeal No. 08-17471 is REVERSED in part, DISMISSED AS MOOT in part, and REMANDED. Appeal No. 09-16008 is AFFIRMED.