Case 2:08-cv-00822-JCM-PAL Document 2 Filed 06/24/08 Page 1 of 46

1 Margaret A. McLetchie, Bar No. 10931 Allen Lichtenstein, Bar No. 3992
2 Lee Rowland, Bar No. 10209 ACLU OF NEVADA
3 732 S. Sixth Street, Suite 200A Las Vegas, NV 89101
4 (702) 366-1902 mcletchie@aclunv.org
5 Attorneys for Plaintiffs Does 1-5
6 Robert L. Langford, Bar No. 3988 7 ROBERT L. LANGFORD & ASSOCIATES
616 S. Eighth Street 8 Las Vegas, Nevada 89101
(702) 471-6535 9 robert@robertlangford.com 10 Attorneys for Plaintiffs Does A-G

11
UNITED STATES DISTRICT COURT
12
DISTRICT OF NEVADA
13

14 The American Civil Liberties Union of Nevada, Does 1- 42 U.S.C. § 1983 COMPLAINT

5 and Does A-G, individuals,
15

FOR DECLARATORY AND INJUNCTIVE RELIEF

16
v.
17

Plaintiffs,

JURY TRIAL DEMANDED

Catherine Cortez Masto, Attorney General of the State 18 of Nevada; Jerald Hafen, Director of the Nevada

19 Department of Public Safety; Bernard W. Curtis, Chief, Parole and Probation Division of the Nevada

20 Department of Public Safety; Captain P.K. O’Neill,

Chief, Records and Technology Division of the Nevada 21 Department of Public Safety; Michael Haley, Sheriff of

22 the Washoe County Sheriff’s Office; Michael Poehlman, Chief of the Reno Police Department;

23 Richard A. Gammick, District Attorney of Clark

County; Douglas Gillespie, Sheriff of the Las Vegas 24 Metropolitan Police Department; Joseph Forti, Chief of

25 the North Las Vegas Police Department; David Roger, District Attorney of Clark County; Chief Richard

26 Perkins, Henderson Police Department,

27

Defendants.

28

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1

Come now the Plaintiffs, Does 1-5 and Does A-G by and through the undersigned

2
attorneys, and file this Complaint for injunctive and declaratory relief. This is an action under 42
3
U.S.C. § 1983 to address the unconstitutionality of Nevada’s sex offender laws, 1 as modified by
4
5 AB579 and SB471, passed by the Nevada State Legislature last session (“New Sex Offender

6 Laws”). Plaintiffs challenge the New Sex Offender Laws both facially and as applied, and

7 request that this Honorable Court declare the New Sex Offender Laws to be in violation of the
8
U.S. and Nevada Constitutions and permanently enjoin the Defendants from enforcing the laws.
9

10

NATURE OF THE ACTION

11

As alleged with greater particularity below, Plaintiffs allege that specific provisions of

12 the New Sex Offender Laws are unconstitutionally vague in violation of the due process

13 protections of the U.S. and Nevada constitutions and amount to retroactive punishment, in
14 violation of the ex post facto clause of the U.S. Constitution and the retroactivity clause of the
15
Nevada Constitution. Plaintiffs also allege that the New Sex Offender Laws further violate the
16
Due Process, Substantive Due Process, Equal Protection, Double Jeopardy, Contracts, and
17
Takings clauses of the U.S. and Nevada Constitutions. Plaintiffs also allege that the New Sex
18
Offender Laws violate their rights to acquire, possess and protect property; their rights to seek
19
and obtain safety and happiness; their rights to travel, life and liberty; and their rights to freedom
20
of association and religion protected by the First Amendment and Due Process Clause of the
21
U.S. Constitution, as well as Article 1, Sections 4 and 8 of the Nevada Constitution.
22

23
1 The specific provisions at issue are (1) N.R.S. 179D113, N.R.S. 179D.115, N.R.S. 179D.117 24 and 179D.450 as amended by AB 579 (now changing tier level classifications and taking away
individualized assessment for tier level determination); (2) N.R.S. 179D.443, N.R.S. 179D.475 25 and N.R.S. 179D.495 as amended by AB579 (now imposing website notification requirements 26 on all sex offenders, regardless of tier levels and imposing neighborhood notification on all Tier
III offenders, including offenders previously not subject to community notification); (3) NRS 27 179B.250, N.R.S. 179D.441, N.R.S. 179D. 480 (now imposing community notification through
website and other means to all sex offenders and changing duty to register requirements) and (4); 28 and N.R.S. 176A.410, N.R.S. 213.1245 as modified by SB471 (now imposing residency and
movement restrictions on individuals on parole, probation or suspended sentence).
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1
Additionally, Plaintiffs allege that the New Sex Offender Laws constitute cruel and unusual
2
punishment in violation of the Eighth Amendment to the U.S. Constitution and Article 1, § 8 of
3
the Nevada Constitution. Finally, Plaintiffs allege that the New Sex Offender Laws violate the
4
5 Separation of Powers doctrine of the Nevada Constitution (NEV. CONST., ART. 1, § 8, cl. 6)

6
I.
7
8

JURISDICTION 1. This Court has original subject matter jurisdiction over the federal Constitutional

9 violations alleged in this Complaint pursuant to the provisions of 42 U.S.C. § 1983 and 28

10 U.S.C. §§ 1331 and 1343. Pursuant to 28 U.S.C. §1367(a), this Court has supplemental

11 jurisdiction over Plaintiff’s state law claims. This Court has jurisdiction to issue injunctive and
12
declaratory relief pursuant to 28 U.S.C. § 2201 and 42 U.S.C. § 1983.
13
2. Venue is proper in the District of Nevada pursuant to 28 U.S.C. §1391. All parties
14
15 work and reside in Nevada, and all actions pertinent to this complaint occurred in Clark County

16 or Washoe County, Nevada.

17
II.
18

PARTIES

19

3. Plaintiff American Civil Liberties Union of Nevada is a non-profit civil liberties

20
organization, and brings suits to protect the constitutional rights of all the residents of Nevada.
21
At least one member of the ACLU, Doe 2, is a member of the ACLU. The ACLU has received
22

23 hundreds of complaints by sex offenders in Nevada about the implementation of AB579 and

24 SB471.

25

4. Plaintiff Doe 1, a resident of Clark County, Nevada, was convicted of a sexual

26
offense in 1986. He is currently a Tier II sex offender, and has been recently informed that he
27
will have to register as a Tier III sex offender beginning on July 1 of 2008
28

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1

5. Plaintiff Doe 2, a resident of Clark County, Nevada, was convicted of a sexual

2
offense in 1999. He is currently a Tier I sex offender, and has been recently informed that he

3
will have to register as a Tier III sex offender beginning on July 1 of 2008.
4

5

6. Plaintiff Doe 3, a resident of Washoe County, Nevada, was convicted of a sexual

6 offense in 2005. He is currently a Tier I sex offender and has been recently informed that he will

7 have to register as a Tier III sex offender beginning on July 1 of 2008.
8
7. Plaintiff Doe 4, a resident of Clark County, Nevada, was convicted of a sexual
9
offense in 1993. He was not required to register as a sex offender and has been recently
10
11 informed that he will have to register as a Tier III sex offender beginning on July 1 of 2008.

12

8. Plaintiff Doe 5, a resident of Washoe County, Nevada, was convicted of a sexual

13 offense in 2003. He is currently a Tier I sex offender and has been recently informed that he will
14
have to register as a Tier III sex offender beginning on July 1 of 2008.
15
9. Plaintiff Doe A, a resident of Washoe County, Nevada was convicted of a sexual
16
17 offense in 2002. He is currently a Tier 1 sex offender and has recently been informed that he

18 will have to register as a Tier III sexual offender beginning on July 1, 2008.

19

10. Plaintiff Doe B, a resident of Clark County, Nevada was convicted of a sexual

20
offense in1996. He is currently a Tier 1 sex offender and has recently been informed that he will
21

22 have to register as a Tier III sexual offender beginning on July 1, 2008.

23

11. Plaintiff Doe C, a resident of Clark County, Nevada was convicted of a sexual

24 offense in 1997. He is currently a Tier I sex offender and has recently been informed that he will
25
have to register as a Tier III sex offender beginning on July 1, 2208.
26

27

28

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1

12. Plaintiff Doe D, a resident of Clark County, Nevada, was convicted of a sexual

2
offense in 2005. He is currently a Tier I sex offender and has been recently informed that he will

3
have to register as a Tier III sexual offender beginning on July 1, 2008.
4

5

13. Plaintiff Doe E, a resident of Clark County, Nevada, was convicted of a sexual

6 offense in 2002. He is currently a Tier II sex offender and has been recently informed that he

7 will have to register as a Tier III sexual offender beginning on July 1, 2008.
8
14. Plaintiff Doe F, a resident of Clark County, Nevada, was convicted of a sexual
9
offense in 1983. He is currently a Tier 1 sex offender and has been recently informed that he
10
11 will have to register as a Tier III sexual offender beginning on July 1, 2008.

12

15. Plaintiff Doe G, a resident of Clark County, Nevada, was convicted of a sexual

13 offense in 1983. He is currently a Tier 1 sex offender and has been recently informed that he
14
will have to register as a Tier III sexual offender beginning on July 1, 2008
15
16. “Does” herein refers to Does 1-5 and Does A-G.
16

17

17. Defendant Catherine Cortez Masto is the Attorney General of the State of Nevada.

18 Defendant Masto is sued in her official capacity.

19

18. Defendant Jerald Hafen is Director of the Nevada Department of Public Safety. The

20
Nevada Department of Public Safety is vested with the authority to enforce the New Sex
21

22 Offender Laws. Defendant Hafen is sued in his official capacity.

23

19. Defendant Bernard W. Curtis is the Chief of the Parole and Probation Division of the

24 Nevada Department of Public Safety. The Parole and Probation Division is vested with authority
25
to enforce the New Sex Offender Laws. Defendant Curtis is sued in his official capacity.
26
20. Defendant Captain P.K. O’Neill is Chief of the Records and Technology Division of
27
28 the Nevada Department of Public Safety. The Records and Technology Division is vested with

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1 authority to enforce the New Sex Offender Laws, including but not limited to the community

2
notification provisions (regarding website notification) therein. Defendant O’Neill is sued in his

3
official capacity.
4

5

21. Defendants Masto, O’Neill, and Curtis are hereafter collectively referred to as “State

6 Defendants.”

7

22. Defendant Michael Haley is Sheriff of the Washoe County Sheriff’s Office. The

8
Washoe County Sheriff’s Office is vested with authority to enforce the New Sex Offender Laws,
9
including but not limited to the community notification provisions therein. Defendant Haley is
10

11 sued in his official capacity.

12

23. Defendant Michael Poehlman is Chief of the Reno Police Department. The Reno

13 Police Department is vested with authority to enforce the New Sex Offender Laws, including but
14
not limited to the community notification provisions therein. Defendant Poehlman is sued in his
15
official capacity.
16

17

24. Defendant Richard A. Gammick is District Attorney of Washoe County, and is

18 responsible for enforcement of the New Sex Offender Laws. Defendant Gammick is sued in his

19 official capacity.
20
25. Defendants Haley, Poehlman, and Gammmick are hereafter collectively referred to
21
22 as “Washoe County Law Enforcement Defendants.”

23

26. Defendant Douglas Gillespie is Sheriff of the Las Vegas Metropolitan Police

24 Department (“Metro”). Metro is vested with authority to enforce the New Sex Offender Laws,
25
including but not limited to the community notification provisions therein. Defendant Gillespie
26
is sued in his official capacity.
27

28

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1

27. Joseph Forti is Chief of the North Las Vegas Police Department. The North Las

2
Vegas Police Department is vested with authority to enforce the New Sex Offender Laws,
3
including but not limited to the community notification provisions therein. Defendant Forti is
4
5 sued in his individual capacity.

6

28. Defendant David Roger is the District Attorney for Clark County, Nevada.

7

29. Defendant Chief Richard Perkins of the Henderson Police Department. The

8
Henderson Police Department is vested with authority to enforce the New Sex Offender Laws,
9
including but not limited to the community notification provisions therein. Defendant Perkins in
10

11 sued in his individual capacity.

12 III. STANDING

13

30. The ACLU has standing because it has at least one member, Doe 2, who has

14
standing. The ACLU also serves as a resource center on civil liberties issues, including the New
15
Sex Offender Laws, and has received hundreds of phone calls, walk-ins, requests for legal
16

17 advice, and other requests for information about the implementation of the New Sex Offender

18 Laws.

19

31. All Doe Plaintiffs are directly affected by the New Sex Offender Laws and their

20
unconstitutional enforcement. The New Sex Offender Laws and their enforcement have directly
21
caused a violation of Plaintiffs’ rights under the U.S. and Nevada Constitutions. Thus, the
22

23 requirements for Article III standing have been met.

24
IV. GENERAL ALLEGATIONS
25
26 THE NEW SEX OFFFENDER LAWS

27

32. In June of 2007, Governor Gibbons signed AB579 and SB471 into law. The new

28 laws are about to be implemented in their entirety on July 1, 2008, AB579 and SB471 will

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1 dramatically change how sex offenders are defined and classified in Nevada, and what
2
restrictions and requirements apply to sex offenders. The laws were integrated with Nevada’s
3
existing sex offender laws. “New Sex Offender Laws” herein refers to the revised statutes
4
5 pertaining to sex offenders, as amended by AB579 and SB4171. The current system is based
6 upon an individualized assessment of risk of recidivism. N.R.S. 179D113, N.R.S. 179D.115, and
7 N.R.S. 179D.117, addressing tier level registration, as amended by AB579 and AB579, replace
8
the existing individualized, risk-based system with a tier assignment dictated only by the crime
9
committed by the offender, and now include offenders who committed any crime with any
10
11 “sexual element” since July 1, 1956. Many offenders who were previously classified by the
12 State of Nevada as Tier I, or low risk, offenders are now being retroactively reclassified as Tier
13 III offenders. On information and belief, there are also offenders who have been determined by
14
the State of Nevada to be a higher risk and classified as Tier II or Tier III offenders whose tier
15
level will be decreased. On information and belief, numerous people not previously considered
16
17 “sex offenders” will now fall under the changed definition and will be required to register and
18 subject to community notification and other onerous requirements and limitations. These 19 restrictions are being imposed retroactively, regardless of the limitations imposed – or not
20
imposed – on offenders at sentencing. Thus, AB579 and SB471 are being applied to the effect
21
22 that requirements imposed on offenders conflict with those terms contained in existing
23 sentencing orders and plea agreements.
24 Categorization of sex offenders
25
33. AB579 established a tier level system that classifies “offenders convicted of crimes
26
against children” and “sex offenders,” which is now codified in N.R.S. Title 14 Procedure in
27
28 Criminal Cases, 179D Registration of Sex Offenders and Offenders Convicted of a Crime
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1 Against a Child. N.R.S. 179D.095 defines “sex offender” as “a person who, after July 1, 1956, is
2
or has been” a) “convicted of a sexual offense listed in N.R.S. 179D.097…” OR has been
3
“adjudicated delinquent by a court having jurisdiction over juveniles of a certain crimes against a
4
5 child that is listed in N.R.S. 62F.200 if the offender was 14 or older when the crime was
6 committed.”2 Thus, whether someone is considered a sex offender and falls within the law

7 depends on whether their crime falls within the definition of “sexual offense” contained in
8
N.R.S. 179D.097.
9
34. This definition is extremely broad and far-reaching. First, it includes crimes that
10
11 were committed as far back as July 1, 1956. Second, the only sexual conduct that appears to be

12 exempted is consensual sexual conduct if the victim was an adult or at least 13 years of age and
13 the offender was not more than four years older than the victim at the time the offense was
14
committed. N.R.S. 179D.097(2). Crimes that constitute “sexual offenses” range from a first
15
degree murder committed in the perpetration of sexual assault of a child less than 14 years of age
16
17 to the following catch-all category that could include many relatively minor, victimless offenses,

18 including misdemeanors:

19
any other offense tha t has an elemen t involving a sexual act or sexual

20

conduct with another.

21 N.R.S. 179D.097(1)(p). The m eaning of “sexual ac t” or “sexual conduct” is not defined, nor is
22
any other statuto ry definition referenced. Under a separate chapter, 2 01 of Title 15, N.R.S.
23
201.263 defines “sexu al conduct” in the context of prostitution as “acts of masturbation ,
24
25 homosexuality, sexual intercourse or physical contact with a person’s unclothed genitals or pubic

26
2 As to offenders convicted of crimes against children, NRS 179D.0559 defines “offender 27 convicted of a crime against a child as “a person who, after July 1, 1956, is or has been”
convicted of certain crimes against children listed in NRS 179D.0357 or has been “adjudicated 28 delinquent by a court having jurisdiction over juveniles of a certain crimes against a child that is
listed in NRS 62F.200 if the offender was 14 or older when the crime was committed.”
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1 area.” While it is unc lear whether this def inition is applicable for purposes of defining sexual
2
conduct under N.R.S. 179D.097(1 )(p), it shows how broadly “sexual conduct” could be
3
interpreted and how many individuals could be subject to at least a Tier I categorization.
4

5

35. On information and belief, due to the broad scope of the definition of sexual

6
offender, individuals who may never have been required to register as sex offenders in the past
7

8 will now have to. For example, if an individual “knowingly causes to be performed or exhibited,

9 or engages in the performance or exhibition of, any obscene, indecent or immoral show, act or

10 performance is guilty of a misdemeanor.” N.R.S. 201.253. Individuals convicted under N.R.S.
11
201.253 are only required to pay a fine not exceeding $1000 or be imprisoned in jail not to
12
exceed six months. N.R.S. 193.120. However, after the new law goes into effect on July 1, that
13
14 same individual will now be required to register as a Tier I level sex offender.

15

36. In addition to the broad catch-all category, the definition of “sexual offense” extends

16 to offenses that are “determined to be sexually motivated pursuant to N.R.S. 175.547 or
17
207.193.” N.R.S. 179D.097(1)(r). N.R.S. 175.547 defines an offense that is sexually motivated
18
and states, “an offense is sexually motivated if one of the purposes for which the person
19
20 committed the offense was sexual gratification.” Thus, if an individual masturbates or is caught

21 naked or flashing in a park in violation of N.R.S. 201.220, the individual could be classified as a
22 sex offender. Similarly, stealing pornography out of a store could be considered a sexually
23
motivated offense and thus the individual could be classified as a sex offender. And, as noted
24
above, all of these crimes would fall within the definition of “sex offender,” even if they were
25
26 committed more than fifty years ago.3

27

28 3 It is unclear whether individuals who were convicted of a crime that constituted a sexual offense pre-2008 but is no longer a crime today would be classified as a sex offender. For
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1

37. The scope of the duties and restrictions offenders are subject to – such as where they

2
can live, and how long they have to register for – depends on which tier level they are assigned
3
to. Prior to the changes in the law, sex offenders were individually assessed based on guidelines
4
5 created by the Attorney General for risk of recidivism pursuant to N.R.S. 179D.720. These

6 factors included but were not limited to; past criminal history, age of the victim, psychological

7 profile, and response to treatment and behavior. N.R.S. 179D.720(c).
8
38. Under the New Sex Offender Laws, now all “sex offenders” and “offenders
9
convicted of a crime against a child” are automatically assigned to a tier level, depending on the
10
11 crime that they committed. N.R.S. 179D.113-117. Tier III is the most restrictive tier and

12 previously was reserved for high-risk offenders while Tier I is the least restrictive tier and was
13 previously considered the low-risk tier.
14
39. While the law is ambiguous, the classification appears to work as follows: (a)
15
Offenders convicted of the specific offenses listed in N.R.S. 179D.117 are Tier III offenders; (b)
16
17 Offenders who do not already “fit” in the Tier III bucket and were convicted of one of the

18 specific offenses listed in N.R.S. 179D.115 are Tier II offenders; and (c) any offenders who fit
19 the definition of “sex offender” or “offenders convicted of crimes against children” are Tier I
20
offenders. All sex offenders are at least Tier I: N.R.S. 179D.113 states that “‘Tier I offender’
21
22 means an offender convicted of a crime against a child or a sex offender other than Tier II or Tier
23 III offender.” N.R.S. 179D.115 states that “‘Tier II offender means an offender convicted of a

24 crime against a child or a sex offender, other than a Tier III offender, whose crime against a child
25
is punishable by imprisonment for more than 1 year” or whose sexual offense falls within one of
26
the specifically listed crimes if committed against a child. See N.R.S. 179D.115(1)(a)-(e).
27

28 example, it is unclear whether an individual convicted of sodomy in 1960 would be classified as a sex offender today and be required to register as such.
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1 N.R.S. 179D.117 states that “‘Tier III offender’ means an offender convicted of a crime against a
2
child or a sex offender who has been convicted of” one of the specifically listed crimes which
3
include murder, sexual assault, battery, abuse of a child under 13 years of age and kidnapping as
4
5 well as the attempted forms of any of these crimes. See N.R.S. 179D.117(1)-(5).

6

40. On information and belief, many people who committed non-violent and minor

7 crimes will now be classified as dangerous offenders, while dangerous offenders may be
8
classified as low risk. For example, an 18 year old individual who had sex with their 15 year old
9
boyfriend or girlfriend will now be classified as a Tier III sex offender. N.R.S. 200.364; N.R.S.
10
11 179D.113-117. In contrast, an individual who is convicted of abuse of a child involving sexual

12 abuse or sexual exploitation could only be a Tier II level offender if they did not commit the

13 crimes enumerated in the Tier III definition, since an offender is categorized as a Tier II level
14
offender if the offender “committed abuse of a child pursuant to N.R.S. 200.508, if the abuse
15
involved sexual abuse or sexual exploitation.” N.R.S. 179D.113(b). N.R.S. 200.508 defines
16
17 abuse of a child as “[a] person who willfully causes a child who is less than 18 years of age to

18 suffer unjustifiable physical pain or mental suffering as a result of abuse or neglect or to be

19 placed in a situation where the child may suffer physical pain or mental suffering as the result of

20
abuse or neglect.”
21

22

41. There is no means to challenge or seek a reduction in a tier level assignm ent and its

23 implications, other than a reduction of the registration period that is available in two very limited

24 circumstances: (1) offenders who now fall within Tier I and who have a lready registered for ten
25
consecutive years; and (2) Tier III juvenile offenders who have already registered for twenty-five
26
consecutive years. N.R.S. 179D.490(3) as amended by AB579, Sec. 41.
27
28 Registration Duties

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1

42. Under the New Sex Offender Laws, all “sex offenders” must register with local law

2
enforcement. N.R.S. 179D.240. W hich tier level an offender falls with in determ ines the length
3
of mandatory registration. Tier 1 offenders must register for 15 years; Tier II for 25; Tier III for
4
5 life. N.R.S. 179D.460, as amended by AB 579, Sec. 22-24. The duty to register is retroactive:

6

In addition to any other re gistration that is required pursuant to N.R.S. 179D.450,

each offender or sex w ho, after July, 1, 1956 is or has been convicted of a

7

crime against a child or a sexual offense

shall r egister with local law

8

enforcement

9 N.R.S. 179D.460, as amended by AB 579, Sec. 39. What is not clear, however, is how long

10 offenders must register for if they were convicted before AB579 goes into effect in July. N.R.S.
11
179D.490 states that “registration begins on the date that the Central Repository or appropriate
12
agency of another jurisdiction establishes a record of registration for the offender or sex offender
13
14 or the date that the offender or sex offender is released, whichever occurs later.” Thus, there is a
15 discrepancy between individuals who are currently registering and those individuals who are
16 either done registering or have never been required to register. For example, it seems for an
17
individual who is currently required to register, the years that they have accumulated thus far
18
would count towards the total minimum years required pursuant to N.R.S. 179D.490. However,
19
20 for those individuals who were previously not required to register or have already completed

21 their registration requirements per their probation or parole agreement, it seems they would have

22 to start at zero upon registering, as the statute requires the years of registration to be consecutive.
23

24 Lack of Notice

25

43. Under the New Sex Offender Laws, offenders are not entitled to notice regarding

26
their tier assignment or the duties or limitations imposed on them. While the prior law, N.R.S.
27
179D.740, provided for notification to defendants regarding their tier level determination, that
28

section was repealed by AB 579, Sec, 6. After July 1, 2008, there will be no mechanism for
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1 ensuring that all offenders are apprised of their status as sex offenders, their tier level
2
assignment, or their duties to register. Pursuant to N.R.S. 176.0926, the court is supposed to
3
notify at sentencing defendant’s tier level and requirement to register as a sex offender,
4
5 however, N.R.S. 176.0926 also waives the court’s liability for failure to notify the defendant.

6 Similarly, incarcerated individuals and those individuals who are currently on probation, parole

7 or lifetime supervision are to be notified by the Central Repository pursuant to N.R.S. 179D.450

8
of their new tier level and requirement to register. However, again, N.R.S. 179D.450 waives
9
any liability of the Central Repository for failing to notify the offender.
10

11

44. While all “sex offenders” from July 1, 1956 to the present appear to have an

12 individual responsibility to register pursuant to N.R.S. 179D.240, there is no provision on how

13 they will be provided with notice of this duty or of their tier level. Those individuals who are
14
suddenly required to re-register and are no longer “in the system” – or were never “in the
15
system” to begin with, will have no way of receiving notice of these new changes and
16
17 registration requirements. The broad – and unclear – definition of “sexual offender” further

18 complicates matters. If the state is not statutorily required to give notice to the individual of

19 their changed status, essentially the duty is left up to the individual to determine if their specific
20
offense categorizes them as a sexual offender and thus requires them to register.
21
22 All offenders are subject to community notification

23

45. As long as someone is subject to registration they are subject to community

24 notification. The law has not changed with regards to who the sex offender is required to notify,
25
however, the law has changed who the local law enforcement agency is required to notify. Prior
26
to July 1, N.R.S. 179D.730 controlled the procedure for how the community was notified of an
27
28 individual’s sex offender status. For Tier I level offenders, law enforcement was required to

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1 notify other law enforcement agencies that may encounter the offender. N.R.S. 179D.730. For
2
Tier II level offenders, law enforcement was also required to notify schools, religious
3
organizations and youth organizations that are likely to encounter the individual. Id. And for
4
5 Tier III offenders, law enforcement was required to notify the public through a means designed

6 to reach members of the public who are likely to encounter the sex offender. Id. Now, pursuant

7 to N.R.S. 179D.475, all offenders are subject to much broader community notification, even
8
those who committed their crimes as far back as 1956. This is based on the fact that N.R.S.
9
179D.475 states “the Central Repository shall immediately provide all updated information
10
11 pursuant to . . . N.R.S. 179D.460” to law enforcement for community notification. And N.R.S.

12 179D.460 retroactively applies registration requirements for any individual “who, after July 1,

13 1956, is or has been convicted of a crime against a child or a sexual offense.”
14
46. A sex offender is required to register and provide information to the local law
15
enforcement agency which includes but is not limited to the offender’s name and aliases, social
16
17 security number, address, license plate number and description of motor vehicle information

18 pursuant to N.R.S. 179D. 443. The local law enforcement agency then must provide the

19 information collected from the individual as well as a photograph and fingerprints to the Central
20
Repository pursuant to N.R.S. 179D.460. Local law enforcement must also provide the
21
22 information to the following:

23

(1) Each school, religious organizati on, youth organization and public housing

authority in which the offender or sex offender resides or is a student or worker;

24

(2) Each agency which provides child welfare serv ices as defined in N.R.S.

25

432B.030;

(3) Volunteer organizations in which c ontact with ch ildren or other vulnerable

26

persons might occur; and

(4) If the of fender or sex offender is a Tier III offender, mem bers of the public

27

who are likely to encounter the offender or sex offender

28

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1 N.R.S. 179D.475(a). Moreover, local law enforcement “[m]ay provide any updated information
2
obtained from the Central Repository …. to any other person or entity whom the law
3
enforcement agency determines warrants such notification.” N.R.S. 179D.475(b). The Central
4
5 Repository also has a duty to notify any agency responsible for conducting employment-related

6 background checks and any organization, company or person who requests such notification.

7 N.R.S. 179D.475(1).
8
47. While law enforcement is required to notify employers and other “members of the
9
public who are likely to encounter” Tier III offenders, the extent of notification for Tier I and
10
11 Tier II is completely within the discretion of local law enforcement. Tier I and Tier II offenders

12 – which, again, include any offenders convicted of any crime with any sexual element since July

13 1, 1956 – are left at the mercy of law enforcement regarding who else will be notified of their
14
sex offender status. The effect of the revised statute is that many individuals who were never
15
required to register before because their offense was not included in the definition of sexual
16
17 offense pursuant to N.R.S. 179D.097 will now be required to register with local law

18 enforcement and all offenders will be subject to broader community notification.

19

48. The language of the statute is unclear. It is ambiguous as to which institutions the

20
law enforcement agency will be required to notify. N.R.S. 179D.475(1)(b). There are also no
21

22 distance limitations to define where a sex offender is considered to “reside.” N.R.S.

23 179D.475(1) Similarly, the statute does not define who “members of the public” are and how

24 to determine who the offender is “likely to encounter.” Id.
25
49. Under the law, a Tier I individual who signed a plea agreement to minimal
26
registration and no community notification requirements may now have to register as a Tier III
27
28 sex offender and be subject to law enforcement informing individuals they are “likely to

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1 encounter” of their Tier III status. Further, offenders who did not previously fall within

2
definition of a sex offender pursuant to N.R.S. 179.095 will now have to register and will be

3
subject to discretionary community notification by local law enforcement.
4

5

50. Existing law N.R.S. 179B.200 requires the Central Repository (Department of

6 Public Safety) to establish a repository regarding sex offenders and offenders convicted of

7 certain crimes against children (“offenders”). AB579, Sec. 13 modifies N.R.S. 179B.250
8
regarding public access to information of offenders. N.R.S. 179B.250 now requires the Central
9
Repository to establish a community notification website and dictates the contents of the
10
11 website. Previously, only Tier II and III offenders were subject to the website, however the new

12 law also includes “Tier I offenders who have been convicted of a sexual offense against a child

13 or a crime against a child.” N.R.S. 179B.250(7)(b). Thus, once again, individuals who may not
14
have been classified as a sex offender prior to the changes in the law may now be subject to
15
community website notification. Moreover, the individuals subject to community website
16
17 notification will apply retroactively back to July 1, 1956.

18

51. A “crime against a child,” as defined in N.R.S. 179D.210, criminalizes consensual

19 acts with any “child,” defined as anyone under 18, and is not subject to the same similarity-in-
20
age exemption found in the definition of sex offender in N.R.S. 179D(2) (“Sexual offense” does
21
22 not include any act where the “victim” is “[a]t least 13 years of age and the offender was not

23 more than 4 years older than the victim at the time of the commission of the offense.”). See,

24 e.g. N.R.S. 201.300(d) (Making a Category B felon of anyone who “persuades, encourages or
25
procures a person of previous chaste character to enter any place within this state in which
26
prostitution is practiced, encouraged or allowed, for the purpose of sexual intercourse”).
27

28

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1

52. N.R.S. 179B.250 requires that a warning be posted on the website explaining that

2
the information “should not be used to unlawfully injure, harass or commit a crime against any
3
person named in the registry or residing or working at any reported address and a notice that any
4
5 such action could result in civil or criminal penalties.” N.R.S. 179B.250 states that the

6 information on the website cannot be used for the specified unlawful purposes, but it is unclear

7 whether a private organization who receives the information directly from the Central
8
Repository and not from the website is subject to the same restrictions. It is unclear whether
9
N.R.S. 179B.200 limit private agencies from posting the information obtained from the Central
10
11 Repository on their public websites. Similarly, it is unclear whether people who misuse the

12 information “channeled” through private companies are subject to the same criminal and civil

13 penalties listed in N.R.S. 179B.280.4
14

15 Lifetime Supervision

16

53. Pursuant to N.R.S. 213.1243, the conditions for lifetime supervision include such

17 things as residency and movement restrictions for Tier III level offenders, restrictions on the

18 number of released prisoners who can occupy one residence without a license, as well as

19 approval of any residency location and payment of costs for participation under the system.5
20
54. As amended by AB579, Section 6, N.R.S. 176.0931 reads, in part:
21

22

1. If a defe ndant is convicted of a sexual offense, the court shall include in

sentencing, in addition to any other pena lties provided by law, a special sentence

23

of lifetime supervision.

24

25
4 On information and belief, private companies use the information from the Central Repository website, and then 26 repackage and “resell” the information to law enforcement agencies who in turn give the public access to the
information through their own websites. It is unclear whether private companies are required to post the 27 same warning when they give the public access to the information through their websites.
28 5 As noted above, Tier III offenders must also register in person every 90 days. Together, the Lifetime Supervision and registration requirements in essence impose lifetime probation on Tier III offenders.
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1

2. The special sentence of lifetim e supervision commences after any period of

2

probation or any term of imprisonment and any period of release on parole.

3
Based on the statutory language of N.R.S. 176.0931 it is unclear whether the lifetim e
4
5 supervision requirement will apply retroactively. The language of N.R.S. 176.0931 uses
6 verbiage such as “the court shall include in sentencing” which im plies that th e new

7 changes will not apply retroactively. However, since it appears that the regis tration
8
requirement will apply retro actively pursuant to N.R.S. 179D.460 it is possible th at the
9
lifetime supervision requirement will apply r etroactively as well. Furth er, it is not clea r
10
11 whether sex offenders already on lif etime supervision will be subject to the changed

12 definitions/terms of lifetim e supervision. Based on inform ation and belief, Parole and
13 Probation is imposing lifetime supervision and its changes retroactively.
14
Residence and Movement Restrictions.
15
55. N.R.S. 176A.410, 213.1243, 213.1245 and 213.12556 establish movement and
16
17 residence limitations on: (a) persons convicted of sexual offenses and granted probation and

18 suspended sentences; (b) persons on lifetime supervision; and (c) prisoners released on parole.

19 N.R.S. 176A.410, 213.1243 and 213.1245 all state the defendant may not:

20

knowingly be within 5 00 feet of any place, o r if the place is a structu re, within

21

500 feet of the actual structure, that is designed prim arily for use by or for

22

children, including, without lim itation, a publ ic or private school, a school bus

stop, a center or facility that provides day care services, a video arcade, an

23

amusement park, a playground, a park, an at hletic field or a facility for youth

sports, or a motion picture theater. The provisions of this subsection apply only to

24

a sex offender who is a Tier 3 offender.

25
26 Similarly, they prohibit offenders who were convicted of a sexual offense listed in 27 subsection 6 of N.R.S 213.1255 against a child under the age of 14 years from:

28
6 SB471, Secs. 2, 8, and 9 modified these provisions.
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1

2

[living at any residence] within 1,000 feet of any place, or if the place is a

3

structure, within 1,000 f eet of the actual struct ure, that is designed

primarily for use by or for children, including, without limitation, a public

4

or private school, a school bus stop, a center or facility that provides day

care services, a video arcade, an amusement park, a playground, a park, an

5

athletic field or a facility for youth sports, or a motion picture theater.”

6
56. With respect to individuals placed on lifetime supervision (N.R.S. 176A.410) and
7
probation or suspended sentence (N.R.S. 213.1243) the movement restrictions apply to all Tier
8

9 III offenders but the residency restrictions only apply to Tier III offenders who are convicted of a

10 sexual offense against a child under the age of 14 years, as listed in subsection 6 of N.R.S.

11 213.1255. As for individuals placed on parole (N.R.S. 213.1245 & N.R.S. 213.1255) the
12
movement restrictions apply to individuals “convicted of an offense listed in N.R.S. 179D.097”
13
who are also Tier III level offenders. Just as for individuals subject to probation and lifetime
14
15 supervision, the 1,000-foot residency restriction applies to any parolee who was “convicted of an

16 offense listed in subsection 6 against a child under the age of 14 years and who is a Tier III
17 offender” is subject to 1000 foot residency restrictions. N.R.S. 213.1255(1). The difference
18
between the offenses listed in N.R.S. 213.1255 and N.R.S. 179D.097 results in a bizarre
19
20 discrepancy. Although the movement restrictions for parolees in N.R.S. 213.1255 would only
21 apply to individuals convicted of sexual assault or abuse/neglect of a child if either was

22 committed against a child under 14 years of age, N.R.S. 179D.097 applies to all the same
23
offenses as listed in N.R.S. 213.1255 as well as to individuals who were convicted of murder in
24
the perpetration of attempted sexual assault or sexual abuse, battery, and kidnapping. It is
25
26 unclear why there is this discrepancy in the statutes, but it is clearly an irrational and arbitrary

27 decision as to who is subjected to the movement and/or residency restrictions.

28

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1

57. It is not clear to whom the residence or movement restrictions apply, and whether

2
they apply retroactively. A proponent of the bill, Senator Dina Titus claims the intent of the New
3
Sex Offender laws was to make the residential limitation and monitoring applicable to any Tier 3
4
5 offender. On July 8, 2007 Titus stated “Some of new sex-offender law applies to those on

6 supervision . . . [This bill] was drafted so that any Tier 3 sex offender is prohibited from living or

7 loitering within those distances. We picked Tier 3 because that’s the most serious. It’s not just
8
those under current supervision, or surveillance. It’s all of them. That’s the way it was intended,
9
and that’s the way I understand it to be interpreted.” 7 However, the language of the statute
10
11 seems to make the residency restrictions only applicable to Tier III offenders who committed an

12 offense against a child younger than 14 years of age. N.R.S. 179D.097.

13

58. Based on information and belief, Parole and Probation is imposing these restrictions

14
retroactively, and arbitrarily.
15

16 Non-Residents & Traveling
17
59. Pursuant to N.R.S. 179D.460, if a non-resident is present for 48 hours or more
18
within an incorporated city that has a police department the sex offender is deemed a resident
19
20 offender and is required to register with the city police department within 48 hours of arrival. It
21 is unclear whether these individuals will also be subject to community notification pursuant to

22 N.R.S. 179B.250. After the individual sex offender registers with the city police department,
23
N.R.S. 179D.460(8) requires the police department to forward to the Central Repository the
24
information collected. Then, pursuant to N.R.S. 179B.250 the Central repository is required to
25
26 enter the information in the community notification website, and pursuant to N.R.S. 179D.475

27 law enforcement is also required to notify the specifically listed individuals or organizations
28
7 http://www.nevadaappeal.com/article/20070708/NEWS/107080095.
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1 within the community. See N.R.S. 179D.475(1)(a)-(e) & (2)(a)(1)-(4). Based on the statutory
2
provisions for how newly registered sex offenders are handled by the law enforcement and the
3
Central Repository and the lack of any exception for non-resident sex offenders, it seems likely
4
5 that non-resident sex offenders will be subject to community notification.

6

60. There is nothing in the statutes regarding how non-residents are to receive notice that

7 they must register with the local police department. For those individuals who are required to
8
register as sex offenders in their own state there is a possibility that they will receive notice from
9
their state. For example, in Nevada N.R.S. 179D.450 requires the Department of Corrections or
10
11 local police department to inform the offender that he/she has a “duty to register in any other

12 jurisdiction during any period in which he is a resident of the other jurisdiction.” N.R.S.

13 179D.450(3)(a)(1)(III). However, not only is the Central Repository and/or police department’s
14
liability for failing to notify waived in N.R.S. 179D.450(4), there is also a problem with
15
notification for individuals who are not required to register as sex offenders in their home state
16
17 but who would be classified as sex offenders under Nevada’s definition and thus would be

18 required to register.
19
Punishment for violations of the New Sex Offender Laws
20
61. Pursuant to N.R.S. 179D.550 an offender or sex offender who “fails to register with
21
22 a local law enforcement agency; fails to notify the local law enforcement agency of a change of
23 name, residence, employment or student status; or provides false or misleading information to

24 the Central Repository or a local law enforcement agency is guilty of a category D felony and
25
shall be punished as provided in N.R.S. 193.130.” N.R.S. 193.130 states a category D felony is
26
punishable by no less than 1 year and no more than 4 years as well as up to $5000 in fines. This
27

28

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1 is a serious penalty, especially for an individual who may not receive notice of their tier level or

2
duty to register as a sex offender.

3
THE EFFECTS ON THE DOES
4

5

62. Plaintiff Doe 1 accepted a plea agreement in 1986, pleading guilty to Attempted

6 Lewdness with a Minor Under 14. The Court ordered a suspended sentence and two years

7 probation. As part of the probation agreement the court ordered Doe 1 to enroll and complete
8
counseling, have no contact with his victim, and perform 100 hours of community service. Doe
9
1 has completed all his requirements, was honorably discharged from probation in 1988 and has
10
11 not been convicted or charged with any misconduct or crimes since. Upon completing probation

12 in 1988, Doe 1 was not required to register as a sex offender. However, in 1998 Doe 1 received

13 notice, based on new sex offender laws, that he would be required to register as a Tier I level
14
offender. After an argument with a police officer when registering as a sex offender, his Tier
15
status was moved to Tier II. As a Tier II, Doe 1 was required to register every 180 days. He was
16
17 not subject to any community notification. Doe 1 has now been informed by the Department of

18 Safety that he will now be classified as a Tier III level offender and be required to register in
19 person every 90 days and will be subject to neighborhood and website notification. Doe 1 is also
20
concerned he will have to move as he lives within 1000 feet of a school in violation of the
21
22 movement/residency restrictions contained in SB 471. Doe 1 lives with his wife of fifty-one
23 years and has five children and twelve grandchildren that live in Las Vegas. Doe 1 is extremely

24 worried that his family will be subject to harassment and embarrassment upon community
25
notification of his sex offender status. Doe 1 would never have accepted the plea deal if he knew
26
what the State of Nevada would subject him and his family to.
27

28

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1

63. Plaintiff Doe 2 is a resident of Las Vegas and Clark County. He accepted a plea

2
agreement in 1997, pleading guilty to Attempted Lewdness with a Minor Under 14. He is
3
innocent, but took the plea to avoid the risk of prison time. The court ordered a suspended
4
5 sentence, five years probation and parole, and fees and restitution. The court also ordered that,

6 while Doe 2 was on probation, he was prohibited from going to the movies (except with his

7 fiancée), schools (except to pick up his son), and the parks. Doe 2 has completed all his
8
requirements and finished probation in 2006, and has not been convicted or charged with any
9
misconduct or crimes. However, despite his plea agreement, Doe 2 was required to be on lifetime
10
11 supervision after his probation ended. Doe 2 was assessed as a low danger to society, Tier 1. He

12 was only required to register in person once a year, and was only required to be on lifetime

13 supervision for a limited period. He was not subject to any community notification. Doe 2’s
14
Parole and Probation officer and the Nevada Department of Public Safety have informed him
15
that he is now a Tier III offender, despite the fact that he does not fit the apparent statutory
16
17 meaning of AB579. Now, Doe 2 must register in person every 90 days, is prohibited from

18 picking his children up from school or attending school events, will be subject to neighborhood
19 and website notification and is subject to the movement and residency restrictions contained in
20
SB 471. Doe 2 lives with his wife and three children, and shares custody of his son from his first
21
22 marriage. He fears for the safety of his family once community notification is implemented. Doe
23 2 would never have accepted the plea deal if he knew what the State of Nevada would subject

24 him and his family to. Doe 2 has been required to comply with the new requirements before the
25
effective date of July 1, 2008, and is confused about the meaning of the laws that apply to him.
26
64. Plaintiff Doe 3 is a resident of Reno and Washoe County. He accepted a plea
27
28 agreement in 2005, pleading guilty to Attempted Lewdness With a Minor Under 14. Doe 3 was

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1 accidentally caught nude in his house by his granddaughter, but he never attempted any lewd
2
conduct with her. He accepted a plea deal to spare his family from trauma, and because he
3
believed that a vindictive, drug-addicted relative’s testimony might convict him. The court
4
5 ordered a sentence of five years of probation and one year of house confinement. The court also
6 ordered that Doe 3 attend weekly counseling sessions. He was not subject to community
7 notification. Doe 3 signed the agreement with the understanding that he would not be classified
8
as anything but a Tier I offender, and that the law dictated that. Doe 3 also understood that he
9
would not be subject to any restrictions other than those in his plea agreement. Once community
10
11 notification is implemented, Doe 3 fears for the health and safety of his wife, who lives with him,
12 and their twenty year-old grandson who attends a nearby college, as well as himself. Doe 3
13 would not have accepted the plea deal if he knew what the State of Nevada would subject him
14
and his family to.
15
65. Plaintiff Doe 4 is a resident of North Las Vegas and Clark County. He was charged
16
17 with child abuse and neglect in 2005. He refused numerous plea deals over a two-year pretrial
18 period because he was innocent and the deals required him to register as a sex offender, which 19 would severely limit his ability to participate in the day-to-day lives of his many grandchildren.
20
In 2005, just before trial, Doe 4 agreed to plead guilty to two counts of Child Abuse and Neglect,
21
22 with an on-the-record stipulation that the conviction would not include registration. The court
23 ordered a suspended sentence, five years of probation, therapeutic counseling, DNA testing, fees,
24 and restitution. Doe 4 is fully abiding by these conditions, going to group therapy every week
25
and reporting to Parole and Probation every month. Since the entry of his Judgment of
26
Conviction he has received periodic form letters from the Nevada Department of Public Safety
27
28 informing him that he needs to register. Each time he receive this type of letter, Doe 4 takes it to
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1 his Probation Officer. When this first happened, his Probation Officer checked with the court and
2
confirmed that Doe 4 was not subject to registration. However, when Doe 4 took the latest copy
3
of this same letter to his current Probation Officer, his Probation Officer told him to immediately
4
5 register with the Nevada State Police, which he did. Doe 4 now must register in person every
6 ninety days, will be subject to neighborhood and website community notification, and is subject
7 to the movement and residency restrictions contained in SB 471. Doe 4 lives with his wife of
8
thirty-one years in the house that they have owned for thirty-one years. He believes that he will
9
immediately lose his job, because his employer frequently works at parks and schools and he will
10
11 lose the contact with his grandchild that he bargained for in the plea agreement. Doe 4 would
12 never have accepted the plea agreement, if he knew that terms of the sentence and the explicit
13 promise of the judge could be undone.
14
66. Doe 5 is a resident of Reno and Washoe County, Nevada. Doe 5 accepted a plea
15
agreement in 2003, pleading guilty to Lewdness with a Minor under 14 resulting from a single
16
17 event that he regrets and takes full responsibility for. He accepted the plea agreement to avoid
18 any further trauma to his daughter. Doe 5 was sentenced to five years of probation, which he has 19 successfully fulfilled; and lifetime supervision. While intoxicated, Doe 5 allowed his eleven
20
year-old daughter to inappropriately touch him. He immediately recognized the seriousness of
21
22 his conduct and sought the advice of his wife. After seeking help for the child from local health
23 service providers, Doe 5 voluntarily turned himself into the Washoe County Sherriff and without
24 delay sought counseling to deal with his own problems. Doe 5’s individualized sex offender
25
evaluation, classified him as Tier I offender, a low risk to society, based upon his psychological
26
assessment, history and the low severity of the incident (only contact was above the clothes). In
27
28 May 2008, Doe 5 received a letter from the Nevada Department of Public Safety stating that he
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1 had been reclassified as Tier III offender, effective July 1, 2008. Later that month, Doe 5 was
2
informed by his Parole officer that his residence, which had been previously approved by Parole
3
and Probation, was now too close to the neighborhood trailhead that leads into a private
4
5 community park and playground, although the actual playground and park is more than 1,000
6 feet from Doe 5’s residence. He was notified that he must sell the house that he lives in with his
7 current wife and her stepson and move. Doe 5 believes that the financial burden of selling a
8
house that was purchased just last year will bankrupt his family and destroy the business that he
9
recently started, especially in the current economic climate. Doe 5 also fears that posting of his
10
11 photograph and name and other information on neighborhood fliers and on any community
12 notification websites will result in his family being singled out for scorn and ridicule and perhaps
13 for threats of violence or destruction of property.
14
67. Plaintiff Doe A, a resident of Reno and Washoe County, Nevada, entered into a plea
15
agreement requiring him to plead guilty to two counts of Statutory Sexual Seduction. The change
16
17 in law will require him to take time off work every 90 days to register in person. Doe A and his
18 wife have been unable to sleep since the notification of the change in his Tier status. He is 19 worried about the effect this will have on his family if his wife’s co-workers find out about his
20
prior convictions. He is extremely concerned that he will have to move since he lives close to a
21
22 school bus stop and this will be a profound financial hardship on his family since he lives three
23 blocks from his wife’s parents so that she can help care for them. He is very worried that his
24 neighbors will find out about his prior conviction and retaliate against his wife and daughter. He
25
is afraid of losing his job as a heavy duty truck operator towing other big trucks since it might
26
require him to travel to an area frequented by children or next to or even on a school property.
27
28 He is also sometimes called out to tow school buses and is placed in close proximity to school
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1 children leaving the bus. His job earns $60,000.00 a year and he believes that he would have to
2
take a job earning only $40,000.00 a year.
3
68. Plaintiff Doe B, a resident of Las Vegas, Clark County, Nevada entered a guilty plea
4
5 of one count of Attempted Sexual Assault. At sentencing the court ordered a suspended sentence

6 of 48 to 120 months and placed him on probation not to exceed five years. Doe B is in very bad

7 emotional health. He has great anxiety over the new law and does not understand its effect on
8
him. Doe B is the General Manager of a Construction Company that sometimes requires him to
9
travel to the homes of customers or those that live near schools. In the past his construction
10
11 company has accepted jobs on school property. He has already relocated his business location

12 since it was too close to a public park that children frequent. He also relocated his residence in

13 anticipation of the new law since it was to close to a park and a school bus stop. That property is
14
now a rental with a loss of $800.00 a month. He does not understand or know if he will lose
15
access to the internet which could also have a profound impact on his ability to remain
16
17 competitive in his business.

18

69. Plaintiff Doe C, a resident of Las Vegas, Clark County, Nevada was convicted of

19 two counts of Lewdness with a Child Under the Age of 14. At sentencing, the court ordered a
20
suspended sentence of 24 to 62 months on all counts to run concurrent to each other and placed
21
22 Doe C on probation not to exceed five years. Doe C was placed on a rigorous probation and the

23 court further sentenced Doe C to Lifetime Supervision after being released from probation. Doe

24 C is now worried that the change in law as it will place the residence and movement restrictions
25
on him as he was a Tier I offender prior to the law change. Doe C knew that he was subject to
26
Lifetime supervision and registration, but after being reclassified to Tier III under the new law,
27
28 he will never be able to petition to be removed from the obligation of registration, will be subject

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1 to neighborhood and website community notification, and will also be subject to the movement
2
and residency restrictions contained in SB 471. Doe C is extremely confused with the
3
application of the new law and does not understand how the state can change what he agreed to
4
5 in his Guilty Plea Agreement.

6

70. Plaintiff Doe D is a resident of Henderson and Clark County, Nevada. He accepted

7 a plea agreement in 2005, pleading guilty to three counts of Attempted Lewdness With a Child
8
Under 14 Years of Age. At sentencing, the court ordered a suspended sentence of 12 to 60
9
months on all counts to run concurrent to each other and placed Doe D on probation not to
10
11 exceed three years. Doe D was placed on the rigorous conditions of NRS 176A.410 (required

12 terms and conditions of sex offenders) and further sentenced Doe D to Lifetime Supervision after

13 being released from probation. On November 29, 2007, Doe D was honorably discharged from
14
probation after having satisfactorily completed all of the conditions of probation. Doe D was
15
classified as a Tier I offender but will be reclassified as a Tier III offender under the new law.
16
17 Doe D knew that he was subject to Lifetime supervision and registration, but after being

18 reclassified to Tier III under the new law, he will never be able to petition to be removed from
19 the obligation of registration, will be subject to neighborhood and website community
20
notification, and will also be subject to the movement and residency restrictions contained in SB
21
22 471. Doe D is emotionally distraught and depressed with the enactment of the new law. He
23 currently lives near a grammar school and park which he believes is within 1000 feet and thus

24 will be forced to move. His sister, who lives with Doe D, has just had a baby. Neither can
25
afford to move out. Doe D is extremely confused with the application of the new law and does
26
not understand how the state can change what he agreed to in his Guilty Plea Agreement.
27

28

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1

71. Plaintiff Doe E is a resident of Las Vegas and Clark County, Nevada. He accepted a

2
plea agreement in 2002, pleading guilty to Attempted Lewdness With a Child Under the Age of
3
14 and two counts of Statutory Sexual Seduction. The court sentenced Doe E to 48 - 120 months
4
5 for count 1 and 12-30 months on counts 2 and 3 to run concurrent with count 1. Doe E was also

6 sentenced to Lifetime Supervision to commence after his release from parole or imprisonment.

7 On January 9, 2008, Doe was honorably discharged from parole after successfully completing all
8
requirements. The new law will change Doe E from a Tier II to a Tier III. The new law will
9
require him to take a day off from work every 90 days to register in person and will likely result
10
11 in his termination. Also, Doe E will now also be subject to the movement and residence

12 restrictions. This makes him nervous because he lives near two school bus stops and he

13 originally moved into an adult only section apartment but new management has changed that and
14
now there are numerous children in his neighborhood. The new laws have caused Doe E
15
extreme anxiety, inability to sleep and it causes him to cry uncontrollably for 2-3 hours at a time
16
17 without reason. He also has a heightened sense of paranoia and sensitivity.

18

72. Plaintiff Doe F is a resident of Las Vegas and Clark County, Nevada. He pled guilty

19 in 1983 pursuant to a Guilty Plea Agreement in Michigan to Attempted Criminal Sexual Conduct
20
2nd, and was sentenced. After moving to Las Vegas, Doe F was classified as a Tier I offender.
21
22 He was only required to register by mail once a year. He has recently been told that he will be

23 changed to a Tier III offender. The change in law will require him to take time off work every

24 90 days to register in person. Doe F is 59 years and cannot afford to lose his job. It is likely that
25
he will lose his job if it is notified that he is a sex offender, which will occur with the new
26
community registration laws and website community notification to which he will be subject.
27
28 Doe F is in very bad emotional health and requires the help of his wife of 13 years and daughter

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1 who lives with him. His daughter has a 20 month old child. He has great anxiety over the new
2
law and does not understand its effect on him. He never was on lifetime supervision but now
3
fears that he will arbitrarily be placed on it and will no longer be able to live with his daughter.
4
5 If he is subject to movement and residency restrictions he will definitely lose his job as he is a

6 limo driver and would no longer be able to go to any location that is 500 feet from schools,

7 parks, day cares, etc. His apartment is close to Cimmeron High School. Doe F also relies
8
heavily on the support of his extended family that live in Michigan and Washington, both of
9
which have children. The travel restrictions in the new law will place a great burden on his
10
11 entire family.

12

73. Plaintiff Doe G is a resident of Las Vegas and Clark County, Nevada. Doe G was

13 convicted of Attempted Sexual Assault in 1983 in Colorado. In 1986 he was released from
14
supervision and in 1998 he moved to Las Vegas for work. He has been married for 21 years and
15
currently lives with his wife and his stepson and stepson’s wife and granddaughter. At
16
17 sentencing, he was never advised of or sentenced to Lifetime Supervision. His only requirement

18 was to register yearly with the central repository. He has recently been notified that he will be
19 changed from Tier I to Tier III and that he will now have to register in person every 90 days.
20
This will require him to take an entire day off work and could cause him to lose his job as an
21
22 area manager where he currently earns a six figure income. Doe G and his wife are extremely
23 distraught and confused with the new law and have caused them great stress and anxiety. They

24 have even lost sleep and appetite. If Doe G is subject to lifetime supervision, as many do believe
25
will be the case with the enactment of the new law, then Doe G, will be required to sell his home
26
of 11 years, resulting in a huge financial loss to him and his family as he lives within 500 feet of
27
28 a school and near a bus stop. The community notification requirements could also cause Doe

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1 G’s stepson to lose custody of his daughter because his stepson is financially unable to move out

2
of Doe G’s home.

3

V. FIRST CAUSE OF ACTION

4

Violation of the Fourteenth Amendment to the

5

United States Constitution under 42 U.S.C. § 1983

(Due Process)

6

74. Plaintiffs incorporate by reference each and every allegation contained in the
7

8 preceding paragraphs as set forth fully herein.

9

75. Pursuant to 42 U.S.C. Section 1983, this claim is brought by all Plaintiffs against all

10 State Defendants, by Does 3 and 5, and Doe A against the Reno Law Enforcement Defendants,
11
by Does 1 and 2, and Does B, C, E, F, G against Defendants Roger and Gillespie, by Doe 4
12
against Defendants Roger and Forti, and Doe D against Defendants Roger and Henderson Law
13
14 Enforcement.

15

76. The New Sex Offender Laws are vague and ambiguous and fail to sufficiently define

16 who is subject to the laws, what their effects are, and what the penalties for failure to comply
17
with them are, in violation of the Due Process Clause of the Fourteenth Amendment to the
18
United States Constitution.
19

20

77. The New Sex Offender Laws also violate the Due Process Clause because they

21 reassess offenders and subject them to new restrictions and requirements, regardless of any
22
actual risk to society and without the possibility of any hearing and without any requirement by
23
the State of Nevada to provide offenders with any notice of their classification or any new
24
25 prohibitions or requirements.

26

78. Further, the New Sex Offender Laws violate the Due Process Clause of the U.S.

27 Constitution because they fail to rationally further any legitimate governmental purpose.
28

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1

79. Finally, the New Sex Offender Laws violate the Due Process Clause of the U.S.

2
Constitution because they vary the terms contained in the plea agreements of Does 1-5 and Does

3
A-G.
4

5

80. Each of the Plaintiffs has been, or imminently will be, injured by these constitutional

6 violations, and the Plaintiffs are entitled to declaratory and injunctive relief.

7

VI. SECOND CAUSE OF ACTION

8

Violation of Nev. Const., Art. 1, § 8

(Due Process)

9

81. Plaintiffs incorporate by reference each and every allegation contained in the
10

11 preceding paragraphs as set forth fully herein.

12

82. This claim is brought by all Plaintiffs against all State Defendants, by Does 3 and 5,

13 and Doe A against the Reno Law Enforcement Defendants, by Does 1 and 2, and Does B, C, E,
14
F, G against Defendants Roger and Gillespie, by Doe 4 against Defendants Roger and Forti, and
15
Doe D against Defendants Roger and Henderson Law Enforcement.
16

17

83. For the same reasons that the New Sex Offender Laws violate the due process clause

18 of the U.S. Constitution, they violate the due process clause of the Nevada Constitution.

19
VII. THIRD CAUSE OF ACTION

20

Violation of the First Amendment to the

United States Constitution under 42 U.S.C. § 1983

21

(Free Exercise of Religion)

22
84. Plaintiffs incorporate by reference each and every allegation contained in the

23
preceding paragraphs as set forth fully herein.
24

25

85. Pursuant to 42 U.S.C. Section 1983, this claim is brought by all Plaintiffs against all

26 State Defendants, by Does 3 and 5, and Doe A against the Reno Law Enforcement Defendants,

27 by Does 1 and 2, and Does B, C, E, F, G against Defendants Roger and Gillespie, by Doe 4
28

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1 against Defendants Roger and Forti, and Doe D against Defendants Roger and Henderson Law
2
Enforcement.
3
86. Because churches and other places of worship fall within the places certain sex
4
5 offenders may not “knowingly be” within 500 feet of under SB471 regardless of the actual

6 known risk offenders, SB471 improperly interferes with offenders’ right to practice religion

7 without undue governmental interference.

8
87. The Plaintiffs have been, or imminently will be, injured by these constitutional
9
violations, and the Plaintiffs are entitled to declaratory and injunctive relief.
10

11

VIII. FOURTH CAUSE OF ACTION

Violation of Nev. Const., Art. 1, § 4

12

(Free Exercise of Religion)

88. Plaintiffs incorporate by reference each and every allegation contained in the
13

14 preceding paragraphs as set forth fully herein.

15

89. This claim is brought by all Plaintiffs against all State Defendants, by Does 3 and 5,

16 and Doe A against the Reno Law Enforcement Defendants, by Does 1 and 2, and Does B, C, E,
17
F, G against Defendants Roger and Gillespie, by Doe 4 against Defendants Roger and Forti, and
18
Doe D against Defendants Roger and Henderson Law Enforcement.
19

20

90. For the same reasons that the New Sex Offender Laws violate the First Amendment

21 to the U.S. Constitution, they violate the free exercise clause of the Nevada Constitution.

22
IX. FIFTH CAUSE OF ACTION

23

Violation of the Fourteenth Amendment to the

United States Constitution under 42 U.S.C. § 1983

24

(Substantive Due Process)

25
91. Plaintiffs incorporate by reference each and every allegation contained in the
26
preceding paragraphs as set forth fully herein.
27

28

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1

92. Pursuant to 42 U.S.C. Section 1983, this claim is brought by all Plaintiffs against all

2
State Defendants, by Does 3 and 5, and Doe A against the Reno Law Enforcement Defendants,
3
by Does 1 and 2, and Does B, C, E, F, G against Defendants Roger and Gillespie, by Doe 4
4
5 against Defendants Roger and Forti, and Doe D against Defendants Roger and Henderson Law

6 Enforcement.

7

93. By impacting on the Does’ ability to travel throughout Nevada, attend church or

8
other religious services, go to Court or attorney offices, parent their children, and live with their
9
families, the New Sex Offender Laws impinge on their fundamental rights to free association,
10

11 travel, and to raise their children without undue governmental interference.

12

94. Each of the Plaintiffs has been, or imminently will be, injured by these constitutional

13 violations, and the Plaintiffs are entitled to declaratory and injunctive relief.

14

X. SIXTH CAUSE OF ACTION

15

Violation of Nev. Const., Art. 1, § 8

(Substantive Due Process)

16

95. Plaintiffs incorporate by reference each and every allegation contained in the

17
preceding paragraphs as set forth fully herein.
18

96. This claim is brought by all Plaintiffs against all State Defendants, by Does 3 and 5,
19

20 and Doe A against the Reno Law Enforcement Defendants, by Does 1 and 2, and Does B, C, E,

21 F, G against Defendants Roger and Gillespie, by Doe 4 against Defendants Roger and Forti, and
22
Doe D against Defendants Roger and Henderson Law Enforcement.
23
97. For the same reasons that the New Sex Offender Laws violate the substantive due
24
25 process clause of the U.S. Constitution, they violate the substantive due process clause of the
26 Nevada Constitution.

27

XI. SEVENTH CAUSE OF ACTION

28

Violation of the Fourteenth Amendment to the

United States Constitution under 42 U.S.C. § 1983

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1

(Equal Protection)

2
98. Plaintiffs incorporate by reference each and every allegation contained in the

3
preceding paragraphs as set forth fully herein.
4

5

99. Pursuant to 42 U.S.C. Section 1983, this claim is brought by all Plaintiffs against all

6 State Defendants, by Does 3 and 5, and Doe A against the Reno Law Enforcement Defendants,

7 by Does 1 and 2, and Does B, C, E, F, G against Defendants Roger and Gillespie, by Doe 4

8
against Defendants Roger and Forti, and Doe D against Defendants Roger and Henderson Law
9
Enforcement.
10

11

100. These laws are irrational, and designed only to burden an unpopular group. New

12 Sex Offender Laws thus violate the Equal Protection Clause of the U.S. Constitution.

13

101. Each of the Plaintiffs has been, or imminently will be, injured by these constitutional

14
violations, and the Plaintiffs are entitled to declaratory and injunctive relief.
15

XII. EIGHTH CAUSE OF ACTION

16

Violation of Nev. Const., Art. 1, § 1

17

(Equal Protection)

102. Plaintiffs incorporate by reference each and every allegation contained in the

18

preceding paragraphs as set forth fully herein.
19

20

103. This claim is brought by all Plaintiffs against all State Defendants, by Does 3 and 5,

21 and Doe A against the Reno Law Enforcement Defendants, by Does 1 and 2, and Does B, C, E,

22
F, G against Defendants Roger and Gillespie, by Doe 4 against Defendants Roger and Forti, and

23
Doe D against Defendants Roger and Henderson Law Enforcement.
24

25

104. For the same reasons that the New Sex Offender Laws violate the substantive due

26 process clause of the U.S. Constitution, they violate the guarantee to equal protection of the laws

27 contained in the Nevada Constitution.
28
XIII. NINTH CAUSE OF ACTION
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1

Violation of Eighth Amendment to the U.S. Constitution

2

United States Constitution under 42 U.S.C. § 1983

(Cruel and Unusual Punishment)

3
105. Plaintiffs incorporate by reference each and every allegation contained in the
4

5 preceding paragraphs as set forth fully herein.

6

106. Pursuant to 42 U.S.C. Section 1983, this claim is brought by all Plaintiffs against all

7 State Defendants, by Does 3 and 5, and Doe A against the Reno Law Enforcement Defendants,
8
by Does 1 and 2, and Does B, C, E, F, G against Defendants Roger and Gillespie, by Doe 4
9
against Defendants Roger and Forti, and Doe D against Defendants Roger and Henderson Law
10
11 Enforcement.

12

107. AB579 and SB471 impose extensive punishments, both on persons previously

13 convicted of sexual offenses and prospectively, that are excessive in relation to the crimes
14
offenders are convicted of. For example, anyone convicted of any crime with any “sexual
15
element” since July 1, 1956 is considered a sex offender under the New Sex Offender Laws and
16
17 is subject to community notification and registration requests.

18

108. All new Tier III offenders, including the Plaintiffs, will now be subject to both

19 extensive duties and extensive restrictions.
20
109. Similarly, Doe 1, for example, pled guilty to inappropriately touching a student –
21
22 which he did on one occasion, for moments, and over the clothes – in 1986, over thirty years ago.

23 He was never sentenced to time in prison, and successfully finished probation and the other

24 terms of his plea agreement. The State of Nevada has evaluated Doe 1 and has determined that
25
he is not a risk. Now, years later, he is being classified a Tier III offender, the highest risk
26
offender. As such, he must register every 90-days and is subject to community notification (not
27

28

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1 only will his picture, name, address and other information be posted on the website, but his
2
neighbors will be notified), and he may have to leave the house he shares with his wife.
3
110. Community notification can subject offenders to violence at the hands of vigilantes.
4
5 Human Rights Watch, in a comprehensive 2007 study of sex offender laws (laws that were far

6 less extreme than the New Sex Offender Laws about to be implemented in Nevada) and their

7 effects and utility, found that public safety was not furthered by expansive notification and

8
restriction provisions, but offenders were subjected to vigilantism:

9

Information provided by state online se x offender registries, as well as

10

information provided during comm unity notification by law enf orcement, is no t

11

just used by private citizens to determine what streets their children can walk on,

or whom to avoid. Neighbors as w ell as strangers harass, intimidate and

12

physically assault people w ho have committed sex offe nses. At least four

registered sex offenders have been killed.
13

14 p. 89, No Easy Answers: Sex Offender Laws in the United States,” Human Rights Watch,

15 available at http://www.hrw.org/reports/2007/us0907/us0907web.pdf . Each of the Plaintiffs has

16 been, or imminently will be, injured by Eighth Amendment violations, and the Plaintiffs are

17
entitled to declaratory and injunctive relief.

18

XIV. TENTH CAUSE OF ACTION

19

Violation of Nev. Const., Art. 1, § 8

20

(Cruel and Unusual Punishment)

21

111. Plaintiffs incorporate by reference each and every allegation contained in the

22 preceding paragraphs as set forth fully herein.
23
112. This claim is brought by all Plaintiffs against all State Defendants, by Does 3 and 5,
24
and Doe A against the Reno Law Enforcement Defendants, by Does 1 and 2, and Does B, C, E,
25
26 F, G against Defendants Roger and Gillespie, by Doe 4 against Defendants Roger and Forti, and

27 Doe D against Defendants Roger and Henderson Law Enforcement.
28

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1

113. For the same reasons that the New Sex Offender Laws violate the cruel and unusual

2
punishment clause of the U.S. Constitution, they violate the substantive due process clause of the
3
Nevada Constitution.
4

5

6

XV. ELEVENTH CAUSE OF ACTION

Violation of the Article 1, § 9 of the

7

United States Constitution under 42 U.S.C. § 1983

8

(Ex Post Facto)

9

114. Plaintiffs incorporate by reference each and every allegation contained in the

10 preceding paragraphs as set forth fully herein.
11
115. Pursuant to 42 U.S.C. Section 1983, this claim is brought by all Plaintiffs against all
12
State Defendants, by Does 3 and 5, and Doe A against the Reno Law Enforcement Defendants,
13
14 by Does 1 and 2, and Does B, C, E, F, G against Defendants Roger and Gillespie, by Doe 4

15 against Defendants Roger and Forti, and Doe D against Defendants Roger and Henderson Law
16 Enforcement.
17
116. The effect and intent of AB579 and SB471 are both punitive, and the New Sex
18
Offender Laws impose new punishments on Plaintiffs, including but not limited to the
19
20 affirmative disability of having to register in person every 90 days, banishment from their

21 families and communities, on offenders convicted before their enactment.
22
117. Each of the Plaintiffs has been, or imminently will be, injured by these constitutional
23
violations, and the Plaintiffs are entitled to declaratory and injunctive relief.
24

25

26

XVI. TWELFTH CAUSE OF ACTION

Violation of Nev. Const., Art.1, § 15

27

(Ex Post Facto)

28

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1

118. Plaintiffs incorporate by reference each and every allegation contained in the

2
preceding paragraphs as set forth fully herein.
3
119. This claim is brought by all Plaintiffs against all State Defendants, by Does 3 and 5,
4
5 and Doe A against the Reno Law Enforcement Defendants, by Does 1 and 2, and Does B, C, E,

6 F, G against Defendants Roger and Gillespie, by Doe 4 against Defendants Roger and Forti, and

7 Doe D against Defendants Roger and Henderson Law Enforcement.
8
120. For the same reasons that the New Sex Offender Laws violate the ex post facto
9
clause of the U.S. Constitution, they violate the substantive due process clause of the Nevada
10
11 Constitution.

12

13

XVII. THIRTEENTH CAUSE OF ACTION

14

Violation of the Fifth Amendment to the

United States Constitution under 42 U.S.C. § 1983

15

(Double Jeopardy)

16

121. Plaintiffs incorporate by reference each and every allegation contained in the

17
preceding paragraphs as set forth fully herein.
18

122. Pursuant to 42 U.S.C. Section 1983, this claim is brought by all Plaintiffs against all
19

20 State Defendants, by Does 3 and 5, and Doe A against the Reno Law Enforcement Defendants,

21 by Does 1 and 2, and Does B, C, E, F, G against Defendants Roger and Gillespie, by Doe 4

22
against Defendants Roger and Forti, and Doe D against Defendants Roger and Henderson Law

23
Enforcement.
24

25

123. The New Sex Offender Laws impose new punishments on persons previously

26 convicted, and impose registration duties, community notification, and movement and residence

27 restrictions based on the crime originally committed, rather than any actual risk of recidivism, in
28
violation of the Double Jeopardy Clause of the U.S. Constitution.
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1

124. Each of the Plaintiffs has been, or imminently will be, injured by these constitutional

2
violations, and the Plaintiffs are entitled to declaratory and injunctive relief.
3

4

5

XVIII. FOURTEENTH CAUSE OF ACTION

Violation of the Article 1, § 8 of the

6

Nevada Constitution

(Double Jeopardy)
7

8

125. Plaintiffs incorporate by reference each and every allegation contained in the

9 preceding paragraphs as set forth fully herein.

10

126. This claim is brought by all Plaintiffs against all State Defendants, by Does 3 and 5,

11
and Doe A against the Reno Law Enforcement Defendants, by Does 1 and 2, and Does B, C, E,
12
F, G against Defendants Roger and Gillespie, by Doe 4 against Defendants Roger and Forti, and
13

14 Doe D against Defendants Roger and Henderson Law Enforcement.

15

127. For the same reasons that the New Sex Offender Laws violate the double jeopardy of

16 the U.S. Constitution, they violate the substantive due process clause of the Nevada Constitution.
17

18

XIX. FIFTEENTH CAUSE OF ACTION

19

Violation of Article 1, section 10 to the United States Constitution under 42 U.S.C. § 1983

20

(Contracts Clause)

21

117. Plaintiffs incorporate by reference each and every allegation contained in the

22
preceding paragraphs as set forth fully herein.
23
118. Pursuant to 42 U.S.C. Section 1983, this claim is brought by all Plaintiffs against
24
25 all State Defendants, by Does 3 and 5, and Doe A against the Reno Law Enforcement

26 Defendants, by Does 1 and 2, and Does B, C, E, F, G against Defendants Roger and Gillespie, by

27 Doe 4 against Defendants Roger and Forti, and Doe D against Defendants Roger and Henderson
28
Law Enforcement.
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1

119. The New Sex Offender Laws operate as a substantial impairment to the pre-

2
exiting contractual relationship between the state and Plaintiff’s Guilty Plea Agreements by
3
imposing new terms not negotiated which drastically increase, and, or require lifetime
4
5 supervision, registration and community notification.

6

120. Each of the Plaintiffs has been, or imminently will be, injured by these

7 constitutional violations, and the Plaintiffs are entitled to declaratory and injunctive relief.

8
XX. SIXTEENTH CAUSE OF ACTION

9

Violation of the Article I, Section 15 to the

Nevada Constitution

10

(State Contract Clause)

11
128. Plaintiffs incorporate by reference each and every allegation contained in the
12
preceding paragraphs as set forth fully herein.
13

14

129. This claim is brought by all Plaintiffs against all State Defendants, by Does 3 and 5,

15 and Doe A against the Reno Law Enforcement Defendants, by Does 1 and 2, and Does B, C, E,
16 F, G against Defendants Roger and Gillespie, by Doe 4 against Defendants Roger and Forti, and
17
Doe D against Defendants Roger and Henderson Law Enforcement.
18
130. For the same reasons that the New Sex Offender Laws violate the contacts clause of
19
20 the U.S. Constitution, they violate the contracts clause of the Nevada Constitution.

21

22

XXI. SEVENTEENTH CAUSE OF ACTION

Violation of the Fifth Amendment to the

23

United States Constitution under 42 U.S.C. § 1983

(Takings Clause)

24

25
121. Plaintiffs incorporate by reference each and every allegation contained in the
26
preceding paragraphs as set forth fully herein
27

28

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1

122. Pursuant to 42 U.S.C. Section 1983, This claim is brought by all Plaintiffs against

2
all State Defendants, by Does 3 and 5, and Doe A against the Reno Law Enforcement
3
Defendants, by Does 1 and 2, and Does B, C, E, F, G against Defendants Roger and Gillespie, by
4
5 Doe 4 against Defendants Roger and Forti, and Doe D against Defendants Roger and Henderson

6 Law Enforcement.

7

123. The New Sex Offender Laws, by placing residential and movement restrictions on

8
Plaintiffs, unconstitutionally restricts Plaintiff’s property rights to the point that it constitutes a
9
regulatory taking requiring just compensation.
10

11

124. Each of the Plaintiffs has been, or imminently will be, injured by these

12 constitutional violations, and the Plaintiffs are entitled to declaratory and injunctive relief.

13

14

XXII. NINTETEENTH CAUSE OF ACTION

15

Violation of Article III, Section I of the

Nevada Constitution

16

(Separation of Powers)

17

18

125. Plaintiffs incorporate by reference each and every allegation contained in the

19 preceding paragraphs as set forth fully herein.
20
126. This claim is brought by all Plaintiffs against all State Defendants, by Does 3 and
21
22 5, and Doe A against the Reno Law Enforcement Defendants, by Does 1 and 2, and Does B, C,

23 E, F, G against Defendants Roger and Gillespie, by Doe 4 against Defendants Roger and Forti,

24 and Doe D against Defendants Roger and Henderson Law Enforcement.
25
127. The New Sex Offender Laws violates the States Separation of Powers doctrine as
26

27

28

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1 it limits the judicial power of sentence finality as the law vacates existing court judgments

2
regarding sex offenders’ classifications, and community notification and reverse final court

3
judgments setting the length of time that sex offenders must register.
4

5

128. Each of the Plaintiffs has been, or imminently will be, injured by these

6 constitutional violations, and the Plaintiffs are entitled to declaratory and injunctive relief.

7

8
XXIII. PRAYER FOR RELIEF
9

10

WHEREFORE, Plaintiffs request this Honorable Court for the following:

11
a. A declaration that AB579 and SB471 violate, both facially and as applied by the
12
Defendants, the due process clause of the U.S. Constitution (U.S. CONST., Amend, XIV);
13

14

b. A declaration that AB579 and SB471 violate, both facially and as applied by the

15 Defendants, the due process clause of the Nevada Constitution (NEV. CONST., Art. 1, § 8, cl. 5);

16

c. A declaration that SB471 violates, both facially and as applied by the Defendants,

17
the First Amendment to the United States Constitution (U.S. CONST., Amend, I);
18

d. A declaration that SB471 violates, both facially and as applied by the Defendants,
19

20 the right to practice religion without govern mental inference prot ected by the Nevada

21 Constitution (NEV. CONST., Art. 1, § 4, cl. 5);

22
e. A declaration that AB579 and B471 violate, both facially and as applied by the
23
Defendants, the equal protection clause of the United States Constitution (U.S. CONST., Amend,
24
25 IV);

26

f. A declaration that AB579 and SB471 violate, both facially and as applied by the

27 Defendants, the right to equal protection guaranteed by the Nevada Constitution (NEV. CONST.,
28
Art. 1, § 1);
- 44-

COMPLAINT

Case 2:08-cv-00822-JCM-PAL Document 2 Filed 06/24/08 Page 45 of 46

1

g. A declaration that AB579 and SB471 violate, both facially and as applied by the

2
Defendants, the prohibition against cruel and unusual punishment contained in the United States

3
Constitution (U.S. CONST., Amend, VIII);
4

5

h. A declaration that AB579 and SB471 violate, both facially and as applied by the

6 Defendants, the prohibition against cruel and unusual punishment contained in the Nevada

7 Constitution (NEV. CONST., Art. 1, § 8, cl. 5);
8
i. A declaration that AB579 and SB471 violate, both facially and as applied by the
9
Defendants, the ex post facto clause of the United States Constitution (U.S. CONST., Art. 1, §9,
10
11 cl.10);

12

j. A declaration that AB579 and SB471 violate, both facially and as applied by the

13 Defendants, the ex post facto clause of the Nevada Constitution (NEV. CONST., Art. 1, §15);
14
k. A declaration that AB579 and SB471 violate, both facially and as applied by the
15
Defendants, the double jeopardy clause of the United States Constitution (U.S. CONST., Am. V,
16
17 Am. XIV);

18

l. A declaration that AB579 and SB471 violate, both facially and as applied by the

19 Defendants, the double jeopardy facto clause of the Nevada Constitution (NEV. CONST., Art. 1,

20
§8, cl. 1);
21

22

m. A declaration that AB579 and SB471 violate, both facially and as applied by the

23 Defendants, the contracts clause of the United States Constitution (U.S. CONST., Art. 1, § 10);

24

n. A declaration that AB579 and SB471 violate, both facially and as applied by the

25
Defendants, the contracts clause of the Nevada Constitution (NEV. CONST., Art. 1, § 15);
26
o. A declaration that AB579 and SB471violates, both facially and as applied by the
27

28 Defendants, the takings clause of the United States Constitution (U.S. CONST., Amend. V);

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COMPLAINT

Case 2:08-cv-00822-JCM-PAL Document 2 Filed 06/24/08 Page 46 of 46

1

p. A declaration that AB579 and SB471 violate, both facially and as applied by the

2
Defendants, the takings clause of the Nevada Constitution (NEV. CONST., Art. 1, § 9, cl. 6);
3
q. A declaration that AB579 and B471 violate, both facially and as applied by the
4
5 Defendants, the separation of powers doctrine of the Nevada Constitution (NEV. CONST., Art. 3,

6 § 1, cl. 1);

7

r.

8
SB471;
9
s.
10

11

t.

A permanent injunction prohibiting each d efendant from enforcing AB579 and
Reasonable costs and attorneys fees; and Any further relief the Court deems appropriate.

12

13

XXIV. DEMAND FOR JURY TRIAL

14
Plaintiffs demand a trial by jury on all causes of action.
15

16

17

18 DATED:___June 24, 2008_______

ACLU of NEVADA, Attorneys for Does 1-5

19

By:

20

_____/s/_________________________ Margaret A. McLetchie

21
DATED:___June 24, 2008_______
22
23
By:
24
25

ROBERT L. LANGFORD & ASSOCIATES, Attorneys for Does A-G
_____/s/_________________________ Robert L. Langford

26

27

28

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COMPLAINT

 
 Case 2:08-cv-00822-JCM-PAL Document 29 Filed 07/07/08 Page 1 of 47

l Margaret A. McLetchie, Bar No. 10931 Allen Lichtenstein , Bar No. 3992
2 Lee Rowland , Bar No.1 0209 ACLU OF NEVADA
3 732 S. Sixth Street, Suite 200A Las Vegas, NV 89101
4 (702) 366-1902 mcletchie0 laclun v.o rg
5 Attorneys tor Pl ainti ffs Does 1-8
6 Robert L. Langford, Bar No. 3988 7 ROBERT L. LANGFORD & ASSOCIATES
616 S. Eighth Street 8 Las Vegas, Nevada 89101
(702) 471-6535 9 robert@robertlangford.com
10 Attorneys for Plaintiffs Does A-S

11
UNITED STATES DISTRICT COURT
12
DISTRICT OF NEVADA
13

14 The American Civil Liberties Union of Nevada, Does 1- 42 U.S.c. § 1983 AMENDED

8 and Does A-S, individuals,

COMPLAINT FOR

15

DECLARATORY AND

16
v.

Plaintiffs,

INJUNCTIVE RELIEF

17

Catherine Cortez Masto, Attorney General of the State JURY TRIAL DEMANDED 18 of Nevada; Jerald Hafen, Director of the Nevada

19 Department of Public Safety; Bernard W. Curtis, Chief, Parole and Probation Division of the Nevada

20 Department of Public Safety; Captain P.K. O'Neill,

Chief, Records and Technology Division of the Nevada 21 Department of Public Safety; Michael Haley, Sheriff of

22 the Washoe County Sheriff's Office; Michael Poehlman, Chief of the Reno Police Department;

23 Richard A. Gammick, District Attorney of Washoe

County; Douglas Gillespie, Sheriff of the Las Vegas 24 Metropolitan Police Department; Joseph Forti, Chief of

25 the North Las Vegas Police Department; David Roger, District Attorney of Clark County; Chief Richard

26 Perkins, Henderson Police Department,

27

Defendants.

28

- 1-
COMPLAINT

Case 2:08-cv-00822-JCM-PAL Document 29 Filed 07/07/08 Page 2 of 47

1

Come now the Plaintiffs, Does 1-8 and Does A-S by and through the undersigned

2
attorneys, and file this Complaint for injunctive and declaratory relief. This is an action under 42
3
u.S .C. § 1983 to address the unconstitutionality of Nevada's sex offender laws, J as modified by
4
5 AB579 and SB471, passed by the Nevada State Legislature last session ("New Sex Offender

6 Laws"). Plaintiffs challenge the New Sex Offender Laws both facially and as applied, and

7 request that this Honorable Court declare the New Sex Offender Laws to be in violation of the
8
u.s. and Nevada Constitutions and permanently enjoin the Defendants from enforcing the laws.
9

10

NATURE OF THE ACTION

11

As alleged with greater particularity below, Plaintiffs allege that specific provisions of

12 the New Sex Offender Laws are unconstitutionally vague in violation of the due process

13 protections ofthe U.S. and Nevada constitutions and amount to retroactive punishment, in
14 violation of the ex post/acto clause of the U.S. Constitution and the retroactivity clause ofthe
15
Nevada Constitution. Plaintiffs also allege that the New Sex Offender Laws further violate the
16
Due Process, Substantive Due Process, Equal Protection, Double Jeopardy, Contracts, and
17
Takings clauses of the U.S. and Nevada Constitutions. Plaintiffs also allege that the New Sex
18
Offender Laws violate their rights to acquire, possess and protect property; their rights to seek
19
and obtain safety and happiness; their rights to travel, life and liberty; and their rights to freedom
20
of association and religion protected by the First Amendment and Due Process Clause of the
21

22
23 J The specific provisions at issue are (I) N.R.S . 179Dll3, N.R.S. 1790.115, N.R.S. 1790.117 and 1790.450 as amended by AB 579 (now changing tier level classifications and taking away
24 individualized assessment for tier level determination); (2) N.R.S. 1790.443, N.R.S. 1790.475 and N.R.S. 1790.495 as amended by AB579 (now imposing website notification requirements
25 on Tier II and Tier III sex offenders and Tier I sex offenders who are convicted of an offense 26 against a child and imposing neighborhood notification on all Tier III offenders, including
offenders previously not subject to community notification); (3) NRS 179B.250, N.R.S. 27 1790.441, N.R.S. 1790. 480 (now imposing neighborhood discretionary and mandatory
community notification to all sex offenders and changing duty to register requirements) and (4); 28 and N.R.S. 176A.410, N.R.S. 213.1245 as modified by SB471 (now imposing residency and
movement restrictions on individuals on parole, probation or suspended sentence).
- 2-

COMPLAINT

Case 2:08-cv-00822-JCM-PAL Document 29 Filed 07/07/08 Page 3 of 47

1
U.S. Constitution, as well as Article I, Sections 4 and 8 of the Nevada Constitution.
2
Additionally, Plaintiffs allege that the New Sex Offender Laws constitute cruel and unusual
3
punishment in violation of the Eighth Amendment to the U.S. Constitution and Article I, § 8 of
4
the Nevada Constitution. Finally, Plaintiffs allege that the New Sex Offender Laws violate the
5
6 Separation of Powers doctrine of the Nevada Constitution (NEV. CONST., ART. I, § 8, cl. 6).
7 Plaintiffs are challenging the New Sex Offender Laws both facially and as applied to them.

8
I.
9
10

JURISDICTION I. This Court has original subject matter jurisdiction over the federal Constitutional

11 violations alleged in this Complaint pursuant to the provisions of 42 U.S.C. § 1983 and 28

12 U.S.C. §§ 1331 and 1343. Pursuant to 28 U.S.C. §1367(a), this Court has supplemental

13
jurisdiction over Plaintiffs state law claims. This Court has jurisdiction to issue injunctive and

14
declaratory relief pursuant to 28 U.S.C. § 220 I and 42 U.S.C. § 1983.
15

16

2. Venue is proper in the District of Nevada pursuant to 28 U.S.c. §1391. All

17 parties work and reside in Nevada, and all actions pertinent to this complaint occurred in Clark

18 County, Elko County, or Washoe County, Nevada.

19
II.
20

PARTIES

21

3. Plaintiff American Civil Liberties Union of Nevada is a non-profit civil liberties

22
organization, and brings suits to protect the constitutional rights of all the residents of Nevada.
23
At least one member of the ACLU, Doe 2, is a member of the ACLU. The ACLU has received
24

25 hundreds of complaints by sex offenders in Nevada about the implementation of AB579 and

26 SB471.

27

28

. 3-
COMPLAINT

Case 2:08-cv-00822-JCM-PAL Document 29 Filed 07/07/08 Page 4 of 47

1

4. Plaintiff Doe 1, a resident of Clark County, Nevada, was convicted ofa sexual

2 offense in 1986. He is currently a Tier II sex offender, and has been recently informed that he
3
will have to register as a Tier III sex offender beginning on July 1 of 2008.
4
5. Plaintiff Doe 2, a resident of Clark County, Nevada, was convicted of a sexual
5

6 offense in 1999. He is currently a Tier I sex offender, and has been recently informed that he

7 will have to register as a Tier III sex offender beginning on July 1 of2008.

8
6. Plaintiff Doe 3, a resident of Washoe County, Nevada, was convicted ofa sexual
9
offense in 2005. He is currently a Tier I sex offender and has been recently informed that he will
10
11 have to register as a Tier IJl sex offender beginning on July 1 of2008.

12

7. Plaintiff Doe 4, a resident of Clark County, Nevada, was convicted ofa sexual

13 offense in 1993. He was not required to register as a sex offender and has been recently
14
informed that he will have to register as a Tier III sex offender beginning on July I of2008.
15
8. Plaintiff Doe 5, a resident of Washoe County, Nevada, was convicted ofa sexual
16
17 offense in 2003. He is currently a Tier I sex offender and has been recently informed that he will

18 have to register as a Tier III sex offender beginning on July 1 of2008.

19

9. Plaintiff Doe 6 is a resident of Clark County. He pled guilty to Assault and

20
Battery in 1993. He has been registering as a Tier II sex offender since 2000, but has recently
21
been informed that he will have to register as a Tier III sex offender beginning on July 1 of2008 .
22

23

10. Plaintiff Doe 7 is a resident of Elko County. He accepted a plea agreement in

24 1960, pleading guilty to statutory rape. Doe 7 has registered regularly as a Tier I sex offender
25
since the Nevada sex offender tier system was implemented. Recently, Doe 7 was informed that
26
he will have to register as a Tier II sex offender beginning on July I of2008.
27

28

- 4-
COMPLAINT

Case 2:08-cv-00822-JCM-PAL Document 29 Filed 07/07/08 Page 5 of 47

1

II. Plaintiff Doe 8, is a resident ofNye County. He pled guilty to one count of

2
Infamous Crimes Against Nature in 1977. After being incarcerated for 10 years and completing
3
10 years of parole, Doe 8 was pardoned by Governor Bob Miller and was only required to
4
5 register annually as a Tier I offender. In May 2008, Doe 8 was informed he will have to register

6 as a Tier III offender.

7

12. Plaintiff Doe A, a resident of Washoe County, Nevada was convicted of a sexual

8
offense in 2002. He is currently a Tier I sex offender and has recently been informed that he
9
will have to register as a Tier III sexual offender beginning on July 1,2008.
10

11

13. Plaintiff Doe B, a resident of Clark County, Nevada was convicted ofa sexual

12 offense in1996. He is currently a Tier I sex offender and has recently been informed that he will

13 have to register as a Tier III sexual offender beginning on July I, 2008.
14
14. Plaintiff Doe C, a resident of Clark County, Nevada was convicted ofa sexual
15
offense in 1997. He is currently a Tier I sex offender and has recently been informed that he will
16
17 have to register as a Tier III sex offender beginning on July I, 2208.

18

15. Plaintiff Doe D, a resident of Clark County, Nevada, was convicted ofa sexual

19
offense in 2005. He is currently a Tier I sex offender and has been recently informed that he will

20
have to register as a Tier III sexual offender beginning on July I, 2008.
21

22

16. Plaintiff Doe E, a resident of Clark County, Nevada, was convicted of a sexual

23 offense in 2002. He is currently a Tier II sex offender and has been recently informed that he

24 will have to register as a Tier III sexual offender beginning on July I, 2008.
25
17. Plaintiff Doe F, a resident of Clark County, Nevada, was convicted of a sexual
26
offense in 1983. He is currently a Tier I sex offender and has been recently informed that he
27
28 will have to register as a Tier III sexual offender beginning on July 1,2008.

. 5-
COMPLAINT

Case 2:08-cv-00822-JCM-PAL Document 29 Filed 07/07/08 Page 6 of 47

1

IS. Plaintiff Doe G, a resident of Clark County, Nevada, was convicted ofa sexual

2 offense in 19S3. He is currently a Tier I sex offender and has been recently informed that he
3
will have to register as a Tier III sexual offender beginning on July I, 200S
4
19. Plaintiffs H through S are all similarly situated as above mentioned Does A-G in
5

6 that they are residents of Clark County, Nevada, are current Tier I or Tier II sex offenders, and

7 have been recently informed that they will have to register as either Tier II or Tier III sexual

8
offenders beginning on July I, 200S ..
9
20. "Does" herein refers to Does I-S and Does A-S.
10

11

21. Defendant Catherine Cortez Masto is the Attorney General of the State of

12 Nevada. Defendant Masto is sued in her official capacity.

13

22. Defendant Jerald Hafen is Director of the Nevada Department of Public Safety.

14
The Nevada Department of Public Safety is vested with the authority to enforce the New Sex
15
Offender Laws. Defendant Hafen is sued in his official capacity.
16

17

23. Defendant Bernard W. Curtis is the Chief of the Parole and Probation Division of

18 the Nevada Department of Public Safety. The Parole and Probation Division is vested with

19 authority to enforce the New Sex Offender Laws . Defendant Curtis is sued in his official
20
capacity.
21
24. Defendant Captain P.K. O'Neill is Chief of the Records and Technology Division
22
23 of the Nevada Department of Public Safety. The Records and Technology Division is vested

24 with authority to enforce the New Sex Offender Laws, including but not limited to the
25
community notification provisions (regarding website notification) therein. Defendant O'Neill is
26
sued in his official capacity.
27

28

- 6-
COMPLAINT

Case 2:08-cv-00822-JCM-PAL Document 29 Filed 07/07/08 Page 7 of 47

1

25. Defendants Masto. O' Neill. and Curtis are hereafter collectively referred to as

2
"State Defendants."
3
26. Defendant Michael Haley is Sheriff of the Washoe County Sheriffs Office. The
4
5 Washoe County Sherin's Office is vested with authority to enforce the New Sex Offender Laws.

6 including but not limited to the community notification provisions therein. Defendant Haley is

7 sued in his official capacity.
8
27. Defendant Michael Poehlman is Chief of the Reno Police Department. The Reno
9
Police Department is vested with authority to enforce the New Sex Offender Laws, including but
10
11 not limited to the community notification provisions therein. Defendant Poehlman is sued in his

12 official capacity.

13

28. Defendant Richard A. Gammick is District Attorney of Washoe County, and is

14
responsible for enforcement of the New Sex Offender Laws. Defendant Gammick is sued in his
15

official capacity.
16

17

29. Defendants Haley, Poehlman, and Gammmick are hereafter collectively referred

18 to as "Washoe County Law Enforcement Defendants:'
19
30. Defendant Douglas Gillespie is Sheriff of the Las Vegas Metropolitan Police
20
Department ("Metro"). Metro is vested with authority to enforce the New Sex Offender Laws,
21
22 including but not limited to the community notification provisions therein. Defendant Gillespie
23 is sued in his official capacity.

24

31. Joseph Forti is Chief of the North Las Vegas Police Department. The North Las

25
Vegas Police Department is vested with authority to enforce the New Sex Offender Laws.
26
including but not limited to the community notification provisions therein. Defendant Forti is
27

28 sued in his official capacity.

- 7-
COMPLAINT

Case 2:08-cv-00822-JCM-PAL Document 29 Filed 07/07/08 Page 8 of 47

1

32. Defendant David Roger is the District Attorney for Clark County, Nevada.

2
Defendant David Roger is sued in his official capacity.
3
33. Defendant Richard Perkins is Chief of Police of the Henderson Police
4
5 Department. The Henderson Police Department is vested with authority to enforce the New Sex

6 Offender Laws, including but not limited to the community notification provisions therein.

7 Defendant Perkins in sued in his official capacity.

8
III.
9
10

STANDING 34. The ACLU has standing because it has at least one member, Doe 2. who has

standing. The ACLU also serves as a resource center on civil liberties issues. including the New
11

12 Sex Offender Laws, and has received hundreds of phone calls, walk-ins, requests for legal

13 advice. and other requests for information about the implementation of the New Sex Offender

14
Laws.
15
35.
16

All Doe Plaintiffs are directly affected by the New Sex Offender Laws and their

17 unconstitutional enforcement. The New Sex Offender Laws and their enforcement have directly

18 caused a violation of Plaintiffs' rights under the U.S. and Nevada Constitutions. Thus. the

19 requirements for Article III standing have been met.
20

21

IV. GENERAL ALLEGATIONS

22 THE NEW SEX OFFFENDER LAWS

23

36. In June of2007, Governor Gibbons signed AB579 and SB471 into law. The new

24
laws were scheduled to be implemented in their entirety on July I, 2008 2 AB579 and SB471 will
25
dramatically change how sex offenders are defined and classified in Nevada, and what
26

2 7 restrictions and requirements apply to sex otTenders. The laws were integrated with Nevada's

28
, A preliminary injunction staying their implementation was issued on June 30, 2008. - 8-

COMPLAINT

Case 2:08-cv-00822-JCM-PAL Document 29 Filed 07/07/08 Page 9 of 47

1 existing sex offender laws. "'New Sex Offender Laws" herein refers to the revised statutes
2
pertaining to sex offenders, as amended by AB579 and SB4171. The current system is based
3
upon an individualized assessment of risk of recidivism. N.R.S. 179DI13, N.R.S. 179D.115, and

5 N.R.S. 179D.117, addressing tier level registration, as amended by AB579 and AB579, replace 6 the existing individualized, risk-based system with a tier assignment dictated only by the crime

7 committed by the offender, and now include offenders who committed any crime with any
8
"sexual element" or that is "sexually motivated" since July I, 1956. Many offenders who were
9
previously classified by the State of Nevada as Tier I, or low risk, offenders are now being
10
11 retroactively reclassified as Tier III offenders. On information and belief, there are also
12 offenders who have been determined by the State of Nevada to be a higher risk and classified as
13 Tier II or Tier III offenders whose tier level will be decreased. On information and belief,
14
numerous people not previously considered "sex oflenders" will now fall under the changed
15
definition and will be required to register and subject to community notification and other
16
17 onerous requirements and limitations. These restrictions are being imposed retroactively,

18 regardless of the limitations imposed - or not imposed - on offenders at sentencing. Thus,

19
AB579 and SB471 are being applied to the effect that requirements imposed on offenders
20
conflict with those terms contained in existing sentencing orders and plea agreements.
21
22 Categorizatioll ofsex offellders

23

37. AB579 established a tier level system that classifies "offenders convicted of

24 crimes against children"' and "sex offenders," which is now codified in N.R.S. Title 14 Procedur
25
in Criminal Cases, 179D Registration of Sex Offenders and Offenders Convicted of a Crime
26
Against a Child. N.R.S. I 79D.095 defines "sex offender" as " a person who, after July I, 1956, i
27
28 or has been" a) "convicted of a sexual offense listed in N.R.S. I 79D.097 ... " OR has been

- 9-
COMPLAINT

Case 2:08-cv-00822-JCM-PAL Document 29 Filed 07/07/08 Page 10 of 47

1 "adjudicated delinquent by a court having jurisdiction over juveniles of a certain crimes against a
2
child that is listed in N.R.S. 62F.200 if the offender was 14 or older when the crime was
3
committed:·3 Thus, whether someone is considered a sex offender and falls within the law
4
5 depends on whether their crime falls within the definition of "sexual offense" contained in
6 N.R.S. 1790.097.

7

38. This definition is extremely broad and far-reaching. First, it includes crimes that

B
were committed as far back as July I, 1956. Second, the only sexual conduct that appears to be
9
exempted is consensual sexual conduct if the victim was an adult or at least 13 years of age and
10

11 the offender was not more than four years older than the victim at the time the offense was

12 committed. N.R.S. 1790.097(2). Crimes that constitute "sexual offenses" range from a first

13 degree murder committed in the perpetration of sexual assault of a child less than 14 years of age
14
to the following catch-all category that could include many relatively minor, victimless offenses,
15
including misdemeanors:
16

17

any other offense that has an element involving a sexual act or sexual

conduct with another.

18

N.R.S. 1790.097(\ )(p). The meaning of "sexual act"' or "sexual conduct"' is not detined, nor i
19

20 any other statutory definition referenced. Under a separate chapter, 201 of Title 15, N.R.S

21 201.263 defines "sexual conduct'" in the context of prostitution as "acts of masturbation
22
homosexuality, sexual intercourse or physical contact with a person's unclothed genitals or pubi
23
area." While it is unclear whether this definition is applicable for purposes of defining sexua
24

25

26
J As to offenders convicted of crimes against children, NRS 1790.0559 defines "offender 2 7 convicted of a crime against a child as "a person who, after July I, 1956, is or has been"
convicted of certain crimes against children listed in NRS 1790.0357 or has been "adjudicated 28 delinquent by a court having jurisdiction over juveniles of a certain crimes against a child that is
listed in NRS 62F.200 if the offender was 14 or older when the crime was committed."
- 10-

COMPLAINT

Case 2:08-cv-00822-JCM-PAL Document 29 Filed 07/07/08 Page 11 of 47

1 conduct under N.R.S. I 79D.097(1 )(p), it shows how broadly "sexual conduct"" could b
2
interpreted and how many individuals could be subject to at least a Tier I categorization.
3

4

39. On information and belief, due to the broad scope of the definition of sexual

5 offender, individuals who may never have been required to register as sex offenders in the past
6
will now have to. For example, if an individual "knowingly causes to be perfonned or exhibited,
7
or engages in the performance or exhibition of, any obscene, indecent or immoral show, act or
8

9 perfonnance is guilty of a misdemeanor." N.R.S. 201.253. Individuals convicted under N.R.S.

10 201.253 are only required to pay a fine not exceeding $1000 or be imprisoned in jail not to

11
exceed six months. N.R.S. 193.120. However, after the new law goes into effect on July I, that
12
same individual will now be required to register as a Tier I level sex offender.
13

14

40. In addition to the broad catch-all category, the definition of "sexual offense"

15 extends to offenses that are "detennined to be sexually motivated pursuant to N.R.S. 175.547 or

16 207.193:' N.R.S. I 79D.097(1 )(r). N.R.S. 175.547 defines an offense that is sexually motivated
17
and states, "an offense is sexually motivated if one of the purposes for which the person
18
committed the offense was sexual gratification." Thus, if an individual masturbates or is caught
19
20 naked or flashing in a park in violation ofN .R.S. 201 .220, the individual could be classified as a

21 sex offender. Similarly, stealing pornography out of a store could be considered a sexually
22 motivated offense and thus the individual could be classified as a sex offender. And, as noted
23
above, all of these crimes would fall within the definition of "sex offender," even if they were
24
committed more than fifty years ago.4
25

26

< It is unclear whether individuals who were convicted of a crime that constituted a sexual offense pre-200S but is no longer a crime today would be classified as a sex offender. For 28 example, it is unclear whether an individual convicted of sodomy in 1960 would be classified as a sex offender today and be required to register as such.
- 11-

COMPLAfNT

Case 2:08-cv-00822-JCM-PAL Document 29 Filed 07/07/08 Page 12 of 47

1

41. The scope of the duties and restrictions offenders are subject to - such as where

2
they can live, and how long they have to register for - depends on which tier level they are
3
assigned to. Prior to the changes in the law, sex offenders were individually assessed based on
4
5 guidelines created by the Attorney General for risk of recidivism pursuant to N.R.S. 1790.720.

6 These factors included but were not limited to; past criminal history, age of the victim,

7 psychological profile, and response to treatment and behavior. N.R.S. 1790.720(c).
8
42. Under the New Sex Offender Laws, now all "sex offenders" and "offenders
9
convicted of a crime against a child" are automatjcal~v assigned to a tier level, depending on the
10
11 crime that they committed. N.R.S. 1790.113-117. Tier III is the most restrictive tier and

12 previously was reserved for high-risk offenders while Tier I is the least restrictive tier and was

13 previously considered the low-risk tier.
14
43. While the law is ambiguous, the classification appears to work as follows: (a)
15
Offenders convicted of the specific offenses listed in N.R.S. 1790.117 are Tier III offenders; (b)
16
17 Offenders who do not already "fif' in the Tier III bucket and were convicted of one of the

18 specific offenses listed in N.R.S. 1790.115 are Tier II offenders; and (c) any offenders who fit
19 the definition of "sex offender" or "offenders convicted of crimes against children" are Tier I
20
offenders. All sex offenders are at least Tier 1: N.R.S. 1790.113 states that '''Tier I offender'
21
means an offender convicted of a crime against a child or a sex offender other than Tier II or Tie
22
23 III offender:' N.R.S. 1790.115 states that '''Tier II offender means an offender convicted of a

24 crime against a child or a sex offender, other than a Tier III offender, whose crime against a child
25
is punishable by imprisonment for more than I year" or whose sexual offense falls within one of
26
the specifically listed crimes if committed against a child. See N.R.S. 1790.115( 1)(a)-( e).
27
28 N.R.S. 1790.117 states that '''Tier III offender' means an offender convicted of a crime against a

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1 child or a sex offender who has been convicted of' one ofthe specifically listed crimes which

2
include murder, sexual assault, battery, abuse of a child under 13 years of age and kidnapping as

3
well as the attempted forms of any of these crimes. See N.R.S. 1790.117(1)-(5).
4

5

44. On information and belief, many people who committed non-violent and minor

6 crimes will now be classified in the same category as dangerous offenders. For example, an 18

7 year old individual who is convicted of statutory rape for having sex with their 15 year old
8
boyfriend or girlfriend will now be classified as a Tier II sex offender. N.R.S. 200.364; N.R.S.
9
1790.113-117. A dangerous offender such as an individual who is convicted of prostituting a
10
11 child pursuant to N.R.S. 201.300 to 201.340 could also be a Tier II level offender,

12

45. There is no means to challenge or seek a reduction in a tier level assignment an

13 its implications, other than a reduction of the registration period that is available in two ver
14
limited circumstances: (1) offenders who now fall within Tier I and who have already registere
15
for ten consecutive years; and (2) Tier III juvenile offenders who have already registered fo
16
17 twenty-five consecutive years. N.R.S. 1790.490(3) as amended by AB579, Sec. 41.

18 Registration Duties

19

46. Under the New Sex Offender Laws, all "sex offenders" must register with loca

20
law enforcement. N.R.S. 1790.240. Which tier level an offender falls with in determines th
21

22 length of mandatory registration. Tier I offenders must register for 15 years; Tier II for 25; Tie

23 III for life. N.R.S. 1790.460, as amended by AB 579, Sec. 22-24. The duty to register i

24 retroactive:

25
In addition to any other registration that is required pursuant to N.R.S. 179D.450,

26

each offender or sex offender who, after July, 1, 1956 is or has been convicted

of a crime against a child or a sexual offense shall register with local law

27

enforcement

28

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1 N.R.S. 1790.460, as amended by AB 579, Sec. 39. What is not clear, however, is how long
2
offenders must register for if they were convicted before AB579 goes into effect in July. N.R.S.
3
1790.490 states that "'registration begins on the date that the Central Repository or appropriate
4
S agency of another jurisdiction establishes a record of registration for the offender or sex offender
6 or the date that the offender or sex offender is released, whichever occurs later." Thus, there is a
7 discrepancy between individuals who are currently registering and those individuals who are
8
either done registering or have never been required to register. For example, it seems for an
9
individual who is currently required to register, the years that they have accumulated thus far
10
11 would count towards the total minimum years required pursuant to N.R.S. 1790.490. However,
12 for those individuals who were previously not required to register or have already completed
13 their registration requirements per their probation or parole agreement, it seems they would have
14
to start at zero upon registering, as the statute requires the years of registration to be consecutive.
lS
16 Lack ofNotice
17
47. Under the New Sex Offender Laws, offenders are not entitled to notice regarding
18
their tier assignment or the duties or limitations imposed on them. While the prior law, N.R.S.
19
20 1790.740, provided for notification to defendants regarding their tier level determination, that
21 section was repealed by AB 579, Sec, 6. After July 1,2008, there will be no mechanism for
22 ensuring that all offenders are apprised of their status as sex offenders, their tier level
23
assignment, or their duties to register. Pursuant to N.R.S. 176.0926, the court is supposed to
24
notifY at sentencing defendant's tier level and requirement to register as a sex offender,
2S
26 however, N.R.S. 176.0926 also waives the court's liability for failure to notifY the defendant.
27 Similarly, incarcerated individuals and those individuals who are currently on probation, parole
28
or lifetime supervision are to be notified by the Central Repository pursuant to N.R.S. 1790.450
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1 of their new tier level and requirement to register. However, again, N.R.S. 1790.450 waives
2
any liability of the Central Repository for failing to notify the offender.
3
48. While all "sex offenders'- from July I, 1956 to the present appear to have an
4
5 individual responsibility to register pursuant to N.R.S. 1790.240, there is no provision on how
6 they will be provided with notice of this duty or of their tier level. Those individuals who are
7 suddenly required to re-register and are no longer "in the system" - or were never "in the
8
system" to begin with, will have no way of receiving notice ofthese new changes and
9
registration requirements. The broad - and unclear - definition of "sexual offender" further
10
11 complicates matters. If the state is not statutorily required to give notice to the individual of
12 their changed status, essentially the duty is left up to the individual to determine if their specific
13 offense categorizes them as a sexual offender and thus requires them to register.
14
49. N.R.S. 1790.710, which was repealed, set up guidelines for how individuals were
15
to request for reconsideration of tier risk assessment. Now, individuals no longer have the
16
17 ability to challenge their tier level classifications.
18 All offenders are subject to community notification
19
50. As long as someone is subject to registration they are subject to community
20
notification. The law has not changed with regards to who the sex offender is required to notify
21
however, the law has changed who the local law enforcement agency is required to notify. Prio
22
23 to July 1, N.R.S. 1790.730 controlled the procedure for how the community was notified of an
24 individual's sex offender status. For Tier I level offenders, law enforcement was required to
25
notify other law enforcement agencies that may encounter the offender. N.R.S. 1790.730. For
26
Tier II level offenders, law enforcement was also required to notify schools, religious
27
28 organizations and youth organizations that are likely to encounter the individual. [d. And for
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1 Tier III offenders, law enforcement was required to notify the public through a means designed
2
to reach members of the public who are likely to encounter the sex offender. [do Now, pursuant
3
to N.R.S. 1790.475, all offenders are subject to much broader community notification, even
4
5 those who committed their crimes as far back as 1956. A sex offender is required to register
6 and provide information to the local law enforcement agency which includes but is not limited

7 to the offender's name and aliases, social security number, address, license plate number and
8
description of motor vehicle information pursuant to N.R.S. 1790.443. The local law
9
enforcement agency then must provide the information collected from the individual as well as
10
11 a photograph and fingerprints to the Central Repository pursuant to N.R.S. 1790.460. Local

12 law enforcement must also provide the information to the following:

13

(I) Each school, religious organization, youth organization and public housing

14

authority in which the offender or sex offender resides or is a student or worker;

(2) Each agency which provides child welfare services as defined in N.R.S.

15

432B.030;

(3) Volunteer organizations in which contact with children or other vulnerable

16

persons might occur; and

17

(4) If the offender or sex offender is a Tier III offender, members of the public

who are likely to encounter the offender or sex offender

18

19 N.R.S. 1790.475(a). Moreover, local law enforcement '"[mlay provide any updated information
20
obtained from the Central Repository ... to any other person or entity whom the law enforcement
21
agency determines warrants such notification." N.R.S. 1790.475(b). The Central Repository
22
also has a duty to notify any agency responsible for conducting employment-related background
23
checks and any organization, company or person who requests such notification. N.R.S.

25 1790.475(1 ).
26
51. While law enforcement is required to notify employers and other "members of the
27
public who are likely to encounter" Tier III offenders, the extent of notification for Tier I and
28
Tier II is completely within the discretion oflocallaw enforcement. Tier I and Tier II offenders
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1 - which, again, include any offenders convicted of any crime with any sexual element since Jul
2
I, 1956 - are left at the mercy oflaw enforcement regarding who else will be notified of their
3
sex offender status. The effect of the revised statute is that many individuals who were never
4
5 required to register before because their offense was not included in the definition of sexual

6 offense pursuant to N.R.S. 179D.097 will now be required to register with local law

7 enforcement and all offenders will be subject to broader community notification.
8
52. The language of the statute is unclear. It is ambiguous as to which institutions the
9
law enforcement agency will be required to notify. N.R.S. 179D.475(1)(b). There are also no
10
11 distance limitations to define where a sex offender is considered to "reside." N.R.S.

12 I 79D.475(1 ) Similarly, the statute does not define who "members of the public" are and how

13 to determine who the offender is --likely to encounter." Id.
14
53. Under the law, a Tier I individual who signed a plea agreement to minimal
15
registration and no community notification requirements may now have to register as a Tier III
16
17 sex offender and be subject to law enforcement informing individuals they are "likely to

18 encounter" of their Tier III status. Further, offenders who did not previously fall within the

19
definition of a sex offender pursuant to N.R.S. 179.095 will now have to register and will be

20
subject to discretionary community notification by local law enforcement.
21

22

54. Existing law N.R.S. I 79B.200 requires the Central Repository (Department of

23 Public Safety) to establish a repository regarding sex offenders and offenders convicted of

24 certain crimes against children ("offenders"). AB579, Sec. 13 modifies N.R.S. 179B.250
25
regarding public access to information of offenders. N.R.S. 179B.250 now requires the Central
26
Repository to establish a community notification website and dictates the contents of the
27
28 website. Previously, only Tier II and III offenders were subject to the website, however the new

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1 law also includes "Tier I offenders who have been convicted of a sexual offense against a child
2
or a crime against a child." N.R.S. 179B.250(7)(b). Thus, once again, individuals who may not
3
have been classified as a sex offender prior to the changes in the law may now be subject to
4
5 community website notification. Moreover, the individuals subject to community website
6 notification will apply retroactively back to July I, 1956.

7

55. A "crime against a child;' as defined in N.R.S. 179D.210, criminalizes consensual

8
acts with any "child," defined as anyone under 18, and is not subject to the sanJe similarity-in-
9
age exemption found in the definition of sex offender in N.R.S. I79D(2) ("Sexual offense" does
10

11 not include any act where the "victim" is "[aJt least 13 years of age and the offender was not

12 more than 4 years older than the victim at the time of the commission of the offense."). See,

13 e.g. N.R.S. 201.300(d) (Making a Category B felon of anyone who "persuades, encourages or

14
procures a person of previous chaste character to enter any place within this state in which
15
prostitution is practiced. encouraged or allowed, for the purpose of sexual intercourse").
16

17

56. N.R.S. I 79B.250 requires that a warning be posted on the website explaining that

18 the information "should not be used to unlawfully injure, harass or commit a crime against any
19
person named in the registry or residing or working at any reported address and a notice that an
20
such action could result in civil or criminal penalties." N.R.S. 1798.250 states that the
21
information on the website cannot be used for the specified unlawful purposes, but it is unclear
22
23 whether a private organization who receives the information directly from the Central

24 Repository and not from the website is subject to the same restrictions . It is unclear whether
25
N.R.S . 1798.200 limit private agencies from posting the information obtained from the Central
26
Repository on their public websites. Similarly, it is unclear whether people who misuse the
27

28

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1 infonnation "channeled"' through private companies are subject to the same criminal and civil
2 penalties listed in N.R.S. I 79B.280. 5
3

4 Lifetime Supervisioll

5

57. Pursuant to N.R.S. 213.1243, the conditions for lifetime supervision include such

6 things as residency and movement restrictions for Tier III level offenders, restrictions on the

7 number of released prisoners who can occupy one residence without a license, as well as

8
approval of any residency location and payment of costs for participation under the system.6
9
58. As amended by AB579, Section 6, N.R.S. 176.0931 reads, in part:
10

11

I. If a defendant is convicted of a sexual offense, the court shall include in

sentencing, in addition to any other penalties provided by law, a special sentence

12

oflifetime supervision.

2. The special sentence of lifetime supervision commences after any period of
13
probation or any term of imprisonment and any period of release on parole.

14

15 Based on the statutory language of N.R.S. 176.0931 it is unclear whether the lifetime
16
supervision requirement will apply retroactively. The language of N.R.S. 176.0931 uses
17
verbiage such as "the court shall include in sentencing"' which implies that the new
18
19 changes will not apply retroactively. However, since it appears that the registration

20 requirement will apply retroactively pursuant to N.R.S. 1790.460 it is possible that the

21 lifetime supervision requirement will apply retroactively as well. Further, it is not clear

whether sex offenders already on lifetime supervision will be subject to the changed
23
24

25
S On information and belief, private companies use the information from the Central Repository website, and then 26 repackage and "resell" the information to law enforcement agencies who in tum give the public access to the
information through their own websites. It is unclear whether private companies are required to post the 27 same warning when they give the public access to the information through their websites.
28
, As noted above, Tier III offenders must also register in person every 90 days. Together, the Lifetime Supervision and registration requirements in essence impose lifetime probation on Tier III offenders.
• 19·

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1 definitionsltenns of lifetime supervision. Based on infonnation and belief, Parole and

2
Probation is imposing lifetime supervision and its changes retroactively.

3
Residence alld Movement Restrictiolls.
4

5

59. N.R.S. I76A.41 0,213.1243, 213.1245 and 213.12557 establish movement and

6 residence limitations on: (a) persons convicted of sexual offenses and granted probation and

7 suspended sentences; (b) persons on lifetime supervision; and (c) prisoners released on parole.

8
N.R.S. 176A.410, 213.1243 and 213.1245 all state the defendant may not:

9

knowingly be within 500 feet of any place, or if the place is a structure, within

10

500 feet of the actual structure, that is designed primarily for use by or for

11

children, including, without limitation, a public or private school, a school bus

stop, a center or facility that provides day care services, a video arcade, an

12

amusement park, a playground, a park, an athletic field or a facility for youth

sports, or a motion picture theater. The provisions of this subsection apply only to

13

a sex offender who is a Tier 3 offender.

14

15 Similarly, they prohibit offenders who were convicted of a sexual offense listed in

16 subsection 6 ofN.R.S 213.1255 against a child under the age of 14 years from :

17

18

[living at any residence) within 1,000 feet of any place, or if the place is a

structure, within 1,000 feet of the actual structure, that is designed

19

primarily for use by or for children, including, without limitation, a public

or private school, a school bus stop, a center or facility that provides day

20

care services, a video arcade, an amusement park, a playground, a park, an

21

athletic field or a facility for youth sports. or a motion picture theater."

22

60. With respect to individuals placed on lifetime supervision (N.R.S. 176A.41 0) and

23
probation or suspended sentence (N.R.S. 213.1243) the movement restrictions apply to all Tier
24
III offenders but the residency restrictions only apply to Tier III offenders who are convicted of a
25
sexual offense against a child under the age of 14 years, as listed in subsection 60fN.R.S.
26
2 7 213 .1255. As for individuals placed on parole (N.R.S. 213.1245 & N.R.S . 213.1255) the

28
7 SB471 , Secs. 2, 8, and 9 modified these provisions.
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Case 2:08-cv-00822-JCM-PAL Document 29 Filed 07/07/08 Page 21 of 47

1 movement restrictions apply to individuals "convicted of an offense listed in N.R.S . 1790.097""
2
who are also Tier JIllevel offenders. Just as for individuals subject to probation and lifetime
3
supervision, the I,OOO-foot residency restriction applies to any parolee who was "convicted of an
4
offense listed in subsection 6 against a child under the age of 14 years and who is a Tier III
5
6 offender" is subject to 1000 foot residency restrictions. N.R.S. 213.1255( I). The difference

7 between the offenses listed in N.R.S. 213 .1255 and N.R.S. 1790.097 results in a bizarre
8
discrepancy. Although the movement restrictions for parolees in N.R.S. 213.1255 would only
9
apply to individuals convicted of sexual assault or abuse/neglect of a child if either was
10
11 committed against a child under 14 years of age, N.R.S. 1790.097 applies to all the same
12 offenses as listed in N.R.S. 213.1255 as well as to individuals who were convicted of murder in
13 the perpetration of attempted sexual assault or sexual abuse, battery, and kidnapping. It is

unclear why there is this discrepancy in the statutes, but it is clearly an irrational and arbitrary
15
decision as to who is subjected to the movement and/or residency restrictions.
16

17

61. It is not clear to whom the residence or movement restrictions apply, and whether

18 they apply retroactively. A proponent of the bill, Senator Oina Titus claims the intent of the New
19
Sex Offender laws was to make the residential limitation and monitoring applicable to any Tier
20
III offender. On July 8, 2007 Titus stated "Some of new sex-offender law applies to those on
21
22 supervision ... [This bill) was drafted so that any Tier 3 sex offender is prohibited from living or
23 loitering within those distances. We picked Tier 3 because that's the most serious. It's not just

24 those under current supervision, or surveillance. It's all of them. That's the way it was intended,
25
and that's the way I understand it to be interpreted." R However, the language of the statute
26

27

28
8 http://www.nevadaappeal.com/articl e/20070708INEWS/107080095.
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Case 2:08-cv-00822-JCM-PAL Document 29 Filed 07/07/08 Page 22 of 47
1 seems to make the residency restrictions only applicable to Tier III offenders who committed an
2
offense against a child younger than 14 years of age. N.R.S. 1790.097.
3
62. Based on information and belief, Parole and Probation is imposing these
4
5 restrictions retroactively, and arbitrarily.
6
NOIl-Residellts & Travelillg
7
63. Pursuant to N.R.S. 1790.460, if a non-resident is present for 48 hours or more
I 8
9 within an incorporated city that has a police department the sex offender is deemed a resident
10 offender and is required to register with the city police department within 48 hours of arrival. It
11 is unclear whether these individuals will also be subject to community notification pursuant to
12
N.R.S. 179B.250. After the individual sex offender registers with the city police department,
13
N.R.S . 1790.460(8) requires the police department to forward to the Central Repository the
14
15 information collected. Then, pursuant to N.R.S. I 79B.250 the Central repository is required to
16 enter the information in the community notification website, and pursuant to N.R.S. 1790.475
17
law enforcement is also required to notify the specifically listed individuals or organizations
18
within the community. See N.R.S. 1790.475(1 )(a)-(e) and (2)(a)(1 )-(4). Based on the statutory
19
20 provisions for how newly registered sex offenders are handled by the law enforcement and the
21 Central Repository and the lack of any exception for non-resident sex offenders, it seems likely
22 that non-resident sex offenders will be subject to community notification.
23
64. There is nothing in the statutes regarding how non-residents are to receive notice
24
that they must register with the local police department. For those individuals who are required
25
26 to register as sex offenders in their own state there is a possibility that they will receive notice
2 7 from their state but it is not guaranteed and depends on each state's laws. In Nevada N.R.S.
28 1790.450 requires the Department of Corrections or local police department to inform the
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1 offender that he/she has a "duty to register in any other jurisdiction during any period in which
2
he is a resident of the other jurisdiction." N.R.S . 179D.4S0(3)(a)(1 )(111) . However, not only is
3
the Central Repository and/or police department's liability for failing to notify waived in N.R.S.
4
179D.4S0(4), there is also a problem with notification for individuals who are not required to
5
6 register as sex offenders in their home state but who would be classified as sex offenders under
7 Nevada's definition and thus would be required to register.
8
PUllishmelltfor violatiolls ofthe New Sex Offellder Laws
9
65. Pursuant to N.R.S. I 79D.550 an offender or sex offender who " fails to register
10
11 with a local law enforcement agency; fails to notify the local law enforcement agency of a
12 change of name, residence, employment or student status; or provides false or misleading
13 information to the Central Repository or a local law enforcement agency is guilty of a category
14
felony and shall be punished as provided in N.R.S. 193.130." N.R.S. 193.130 states a category
15
D felony is punishable by no less than I year and no more than 4 years as well as up to $5000 in
16
17 fines . This is a serious penalty, especially for an individual who may not receive notice of their
18 tier level or duty to register as a sex offender.
19
THE EFFECTS ON THE DOES
20
66. Plaintiff Doe I accepted a plea agreement in 1986, pleading guilty to Attempted
21
22 Lewdness with a Minor Under 14. The Court ordered a suspended sentence and two years
23 probation. As part of the probation agreement the court ordered Doe 1 to enroll and complete
24 counseling, have no contact with his victim , and perform 100 hours of community service. Doe
25
1 has completed all his requirements. was honorably discharged from probation in 1988 and has
26
not been convicted or charged with any misconduct or crimes since. Upon completing probation
27
2 8 in 1988, Doe I was not required to register as a sex offender. However, in 1998 Doe 1 received
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Case 2:08-cv-00822-JCM-PAL Document 29 Filed 07/07/08 Page 24 of 47
1 notice, based on new sex offender laws, that he would be required to register as a Tier I level
2
offender. After an argument with a police officer when registering as a sex offender, his Tier
3
status was moved to Tier II. As a Tier II, Doe 1 was required to register every 180 days. He was
4
5 not subject to any community notification. Doe I has now been informed by the Department of
6 Safety that he will now be classified as a Tier III level offender and be required to register in
7 person every 90 days and will be subject to neighborhood and website notification. Doe I is also
8
concerned he will have to move as he lives within 1000 feet of a school in violation of the
9
movement/residency restrictions contained in SB 471. Doe I lives with his wife of fifty-one
10
11 years and has five children and twelve grandchildren that live in Las Vegas. Doe I is extremely
1 2 worried that his family will be subject to harassment and embarrassment upon community
13 notification of his sex offender status. Doe 1 would never have accepted the plea deal ifhe knew
14
what the State of Nevada would subject him and his family to.
15
67. Plaintiff Doe 2 is a resident of Las Vegas and Clark County. He accepted a plea
16
17 agreement in 1997, pleading !,'Ililty to Attempted Lewdness with a Minor Under 14. He is
18 innocent, but took the plea to avoid the risk of prison time. The court ordered a suspended
19
sentence, five years probation and parole, and fees and restitution. The court also ordered that,
20
while Doe 2 was on probatioll, he was prohibited from going to the movies (except with his
21
22 fiancee), schools (except to pick up his son), and the parks. Doe 2 has completed all his
23 requirements and finished probation in 2006, and has not been convicted or charged with any
24 misconduct or crimes. However, despite his plea agreement, Doe 2 was required to be on lifetim
25
supervision after his probation ended. Doe 2 was assessed as a low danger to society, Tier 1. He
26
was only required to register in person once a year, and was only required to be on lifetime
27
28 supervision for a limited period. He was not subject to any community notification. Doe 2's
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1 Parole and Probation officer and the Nevada Department of Public Safety have informed him
2
that he is now a Tier III offender, despite the fact that he does not fit the apparent statutory
3
meaning of AB579. Now, Doe 2 must register in person every 90 days, is prohibited from

5 picking his children up from school or attending school events, will be subject to neighborhood 6 and website notification and is subject to the movement and residency restrictions contained in

7 SB 471. Doe 2 lives with his wife and three children, and shares custody of his son from his first
8
marriage. He fears for the safety of his family once community notification is implemented. Doe
9
2 would never have accepted the plea deal if he knew what the State of Nevada would subject
10
11 him and his family to. Doe 2 has been required to comply with the new requirements before the

12 effective date of July 1, 2008, and is confused about the meaning of the laws that apply to him.

13

68. Plaintiff Doe 3 is a resident of Reno and Washoe County. He accepted a plea

" agreement in 2005, pleading guilty to Attempted Lewdness With a Minor Under 14. Doe 3 was
IS
accidentally caught nude in his house by his granddaughter, but he never attempted any lewd
16

1 7 conduct with her. He accepted a plea deal to spare his family from trauma, and because he

18 believed that a vindictive, drug-addicted relative's testimony might convict him. The court
19
ordered a sentence of five years of probation and one year of house confinement. The court also
20
ordered that Doe 3 attend weekly counseling sessions. He was not subject to community
21
22 notification. Doe 3 signed the agreement with the understanding that he would not be classified
23 as anything but a Tier I offender, and that the law dictated that. Doe 3 also understood that he
2. would not be subject to any restrictions other than those in his plea agreement. Once community
25
notification is implemented, Doe 3 fears for the health and safety of his wife, who lives with him
26
and their twenty year-old grandson who attends a nearby college, as well as himself. Doe 3
27

28

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1 would not have accepted the plea deal ifhe knew what the State of Nevada would subject him
2
and his family to.
3
69. Plaintiff Doe 4 is a resident of North Las Vegas and Clark County. He was
4
charged with child abuse and neglect in 2005. He refused numerous plea deals over a two-year
5
6 pretrial period because he was innocent and the deals required him to register as a sex offender,
7 which would severely limit his ability to participate in the day-to-day lives of his many
8
grandchildren. [n 2005, just before trial, Doe 4 agreed to plead guilty to two counts of Child
9
Abuse and Neglect, with an on-the-record stipulation that the conviction would not include
10
11 registration. The court ordered a suspended sentence, five years of probation, therapeutic
12 counseling, DNA testing, fees, and restitution. Doe 4 is fully abiding by these conditions, going
13 to group therapy every week and reporting to Parole and Probation every month. Since the entry
14
of his Judgment of Conviction he has received periodic form letters from the Nevada Department
15
of Public Safety informing him that he needs to register. Each time he receives this type ofletter,
16
17 Doe 4 takes it to his Probation Officer. When this first happened, his Probation Officer checked
18 with the court and confirmed that Doe 4 was not subject to registration. However, when Doe 4
19
took the latest copy of this same letter to his current Probation Officer, his Probation Officer told
20
him to immediately register with the Nevada State Police, which he did. Doe 4 now must
21
register in person every ninety days, will be subject to neighborhood and website community
22
23 notification, and is subject to the movement and residency restrictions contained in SB 471. Doe
24 4 lives with his wife of thirty-one years in the house that they have owned for thirty-one years.
25
He believes that he will immediately lose his job, because his employer frequently works at
26
parks and schools and he will lose the contact with his grandchild that he bargained for in the
27
28
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1 plea agreement. Doe 4 would never have accepted the plea agreement ifhe had known that temlS
2
of the sentence and the explicit promise of the judge could be undone.
3
70. Plaintiff Doe 5 is a resident of Reno and Washoe County, Nevada. Doe 5 accepte
4
5 a plea agreement in 2003, pleading guilty to Lewdness with a Minor under 14 resulting from a
6 single event that he rebrrets and takes full responsibility for. He accepted the plea agreement to
7 avoid any further trauma to his daughter. Doe 5 was sentenced to five years of probation, which
8
he has successfully fulfilled ; and lifetime supervision. While intoxicated, Doe 5 allowed his
9
eleven year-old daughter to inappropriately touch him. He immediately recognized the
10
11 seriousness of his conduct and sought the advice of his wife. After seeking help for the child
12 from local health service providers, Doe 5 voluntarily turned himself into the Washoe County
13 Sherriff and without delay sought counseling to deal with his own problems. Doe 5's
14
individualized sex offender evaluation classified him as Tier I offender, a low risk to society,
15
based upon his psychological assessment, history and the low severity of the incident (only
16
17 contact was above the clothes). In May 2008, Doe 5 received a letter from the Nevada
18 Department of Public Safety stating that he had been reclassified as Tier III offender, effective
19
July 1,2008. Later that month, Doe 5 was informed by his Parole officer that his residence,
20
which had been previously approved by Parole and Probation, was now too close to the
21
neighborhood trailhead that leads into a private community park and playground, although the
22
23 actual playground and park is more than 1,000 feet from Doe 5's residence. He was notified that
24 he must sell the house that he lives in with his current wife and her stepson and move. Doe 5
25
believes that the financial burden of selling a house that was purchased just last year will
26
bankrupt his famil y and destroy the business that he recently started, especially in the current
27
2 8 economic climate. Doe 5 also fears that posting of his photograph, name, and other information
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1 on neighborhood fliers and on any community notification websites will result in his family
2
being singled out for scorn and ridicule and perhaps for threats ofviolence or destruction of
3
property.

5

71. Plaintiff Doe 6, is a resident of Clark County. In 1993, he pled guilty to Assault

6 and Battery. He was involved in a fight and punched a 16 year-old female. Doe 6 was sentenced

7 to six years in prison. After serving five years and six months, Doe 6 was released with no
8
parole or probation requirements. Doe 6 has been registering as a Tier II sex offender since
9
2000, but does not know why he ever had to register as a sex offender in the first place. He
10
11 complied with a request to register from a Metro police officer who visited his mother's house.

12 Doe 6 has been married for seven years. Once community notification requirements are

13 implemented. Doe 6 fears for his family's safety as well as his own. Doe 6 has two small
14
children and he worries that they will suffer humiliation and ridicule as they grow up.
15
72. Plaintiff Doe 7 is a resident of Elko County. He accepted a plea agreement in
16
17 1960, pleading guilty to statutory rape. He was 18 years old and had sex with a 13 year-old

18 female. The court ordered Doe 7 to serve four years of probation. After serving four months,
19
Doe 7 violated his probation when he was arrested for drinking and stealing hay. Doe 7 was the
20
ordered to serve time in prison. After nine months, Doe 7 was released from prison, and was not
21
subject to any parole or probation requirements. Doe 7 registers regularly as a Tier I offender,
22
23 and has not had any legal problems since he was released from prison over forty years ago.
24 Once community notification is implemented, Doe 7 fears for his safety, and for the safety of his
25
wife of forty-seven years. Doe 7 and his numerous family members live in a town with a
26
population of about 3,000. Doe 7 fears that his family will suffer humiliation and ridicule from
27
28 community members.

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1

73. Plaintiff Doe 8 is 67 years old and lives with his wife in a small rural community

2 in Nye County. They have been married for 20 years and have one adult son as well as six

3 grandchildren. One day in 1977, when he was drunk, Doe 8 touched his adopted teenage

4 daughter inappropriately and now deeply regrets his mistake. After spending nine months in the 5 county jail awaiting trial, he plead guilty to one count oflnfamous Crimes Against Nature and 6 was sentenced to life imprisonment with possibility of parole after ten years. He served ten year

7 in prison and another ten years of parole before receiving a Parole Termination and Commuting

B order from Governor Bob Miller. He was told that this order meant that: (I) he was no longer

9 subject to parole or any other penal requirement; (2) there were no restrictions on where he could

10 live; (3) he could travel anywhere he wanted without further permission; and (4) the only

11 requirement was that he register annually as a Tier I sex offender, which he has done. Since he

12 retired, Doe 8 and his wife both volunteer for the Bureau of Land Management, researching and

13 maintaining historic sites in and around our community. In May, Doe 8 received a letter from

14 Nevada's Department of Public Safety informing him that his tier status has been changed from

15 Tier [ to Tier III, the highest level. He is now required to furnish his email addresses along with

16 any other internet addresses. Doe 8 and his wife share a computer upon which they do historic

17 research. as well as use to communicate daily with their grandchildren. Doe 8's wife is under

18 contract to write books on local history, and Doe 8 and his wife fear that the publisher might

19 cancel the contract in fear of public backlash. They live in a small community, and they feel their

20 life will be permanently and adversely affected once community notification begins. To avoid

21 any potential problem they have told their grandchildren that they cannot come for their normal

22 two week summer visit. Doe 8 believes that, if imposed on him, the new residency and travel

23 restrictions re-impose the conditions that were officially terminated by the state' s parole

24 commutation order. Doe 8 and his wife purchased their current home seven years ago, after

25 termination of parole supervision, but it is located approximately seven hundred feet from a

26 public school and he fears that he will have to sell his house should SB471 be applied

27 retroactively.

28

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1

74. Plaintiff Doe A, a resident of Reno and Washoe County, Nevada, entered into a

2
plea agreement requiring him to plead guilty to two counts of Statutory Sexual Seduction. The
3
change in law will require him to take time off work every 90 days to register in person. Doe A
4
and his wife have been unable to sleep since the notification of the change in his Tier status. He
5

6 is worried about the effect this will have on his family ifhis wife's co-workers find out about his

7 prior convictions. He is extremely concerned that he will have to move since he lives close to a
8
school bus stop and this will be a profound financial hardship on his family since he lives three
9
blocks from his wile 's parents so that she can help care for them. He is very worried that his
10
11 neighbors will find out about his prior conviction and retaliate against his wife and daughter. He

12 is afraid of losing his job as a heavy duty truck operator towing other big trucks since it might

13 require him to travel to an area frequented by children or next to or even on a school property.
14
He is also sometimes called out to tow school buses and is placed in close proximity to school
15
children leaving the bus. His job earns $60,000.00 a year and he believes that he would have to
16
17 take ajob earning only $40,000.00 a year.

18

75 . Plaintiff Doe B. a resident of Las Vegas, Clark County, Nevada entered a guilty

19
plea of one count of Attempted Sexual Assault. At sentencing the court ordered a suspended
20
sentence of 48 to 120 months and placed him on probation not to exceed five years. Doe B is in
21
22 very bad emotional health. He has great anxiety over the new law and does not understand its

23 effect on him. Doe B is the General Manager of a Construction Company that sometimes

24 requires him to travel to the homes of customers or those that live near schools. In the past his
25
construction company has accepted jobs on school property. He has already relocated his
26
business location since it was too close to a public park that children frequent. He also relocated
27
28 his residence in anticipation of the new law since it was to close to a park and a school bus stop.

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1 That property is now a rental with a loss of $800.00 a month. He does not understand or know if

2
he will lose access to the internet which could also have a profound impact on his ability to

3
remain competitive in his business.
4

5

76. Plaintiff Doe C, a resident of Las Vegas, Clark County, Nevada was convicted of

6 two counts of Lewdness with a Child Under the Age of 14. At sentencing, the court ordered a

7 suspended sentence of 24 to 62 months on all counts to run concurrent to each other and placed
8
Doe C on probation not to exceed five years. Doe C was placed on a rigorous probation and the
9
court further sentenced Doe C to Lifetime Supervision after being released from probation. Doe
10
11 C is now worried that the change in law will place the residence and movement restrictions on

12 him as he was a Tier I offender prior to the law change. Doe C knew that he was subject to

13 Lifetime supervision and registration, but after being reclassified to Tier III under the new law,
14
he will never be able to petition to be removed from the obligation of registration, will be subject
15
to neighborhood and website community notification, and will also be subject to the movement
16
17 and residency restrictions contained in SB 471. Doe C is extremely confused with the

18 application of the new law and does not understand how the state can change what he agreed to
19
in his Guilty Plea Agreement.
20
77. Plaintiff Doe D is a resident of Henderson and Clark County, Nevada. He
21
22 accepted a plea agreement in 2005, pleading guilty to three counts of Attempted Lewdness With
23 a Child Under 14 Years of Age. At sentencing, the court ordered a suspended sentence of 12 to

24 60 months on all counts to run concurrent to each other and placed Doe D on probation not to
25
exceed three years. Doe D was placed on the rigorous conditions ofNRS 176A.410 (required
26
terms and conditions of sex offenders) and further sentenced Doe D to Lifetime Supervision afte
27
28 being released from probation. On November 29,2007, Doe D was honorably discharged from

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1 probation after having satisfactorily completed all of the conditions of probation. Doe D was
2
classified as a Tier I offender but will be reclassified as a Tier III offender under the new law.
3
Doe D knew that he was subject to Lifetime supervision and registration, but after being
4
5 reclassified to Tier III under the new law, he will never be able to petition to be removed from
6 the obligation of registration, will be subject to neighborhood and website community
7 notification, and will also be subject to the movement and residency restrictions contained in SB
8
471. Doe D is emotionally distraught and depressed with the enactment of the new law. He
9
currently lives near a grammar school and park which he believes is within 1000 feet and thus
10
11 will be forced to move. His sister, who lives with Doe D, has just had a baby. Neither can
12 afford to move out. Doe D is extremely confused with the application of the new law and does
13 not understand how the state can change what he agreed to in his Guilty Plea Agreement.
14
78. Plaintiff Doe E is a resident of Las Vegas and Clark County, Nevada. He
15
accepted a plea agreement in 2002, pleading guilty to Attempted Lewdness With a Child Under
16
17 the Age of 14 and two counts of Statutory Sexual Seduction. The court sentenced Doe E to 48 -
18 120 months for count I and 12-30 months on counts 2 and 3 to run concurrent with count I. Doe
19
E was also sentenced to Lifetime Supervision to commence after his release from parole or
20
imprisonment. On January 9, 2008, Doe was honorably discharged from parole after
21
22 successfully completing all requirements. The new law will change Doe E from a Tier II to a
23 Tier III. The new law will require him to take a day off from work every 90 days to register in
24 person and will likely result in his termination. Also, Doe E will now also be subject to the
25
movement and residence restrictions. This makes him nervous because he lives near two school
26
bus stops and he originally moved into an adult only section apartment but new management has
27
28 changed that and now there are numerous children in his neighborhood. The new laws have
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1 caused Doe E extreme anxiety, inability to sleep and it causes him to cry uncontrollably for 2-3
2
hours at a time without reason. He also has a heightened sense of paranoia and sensitivity.
3
79. Plaintiff Doe F is a resident of Las Vegas and Clark County, Nevada. He pled
4
5 guilty in 1983 pursuant to a Guilty Plea Agreement in Michigan to Attempted Criminal Sexual
6 Conduct 2nd, and was sentenced. After moving to Las Vegas, Doe F was classified as a Tier I
7 offender. He was only required to register by mail once a year. He has recently been told that
8
he will be changed to a Tier III offender. The change in law will require him to take time off
9
work every 90 days to register in person. Doe F is 59 years and cannot afford to lose his job. It
10
11 is likely that he will lose his job if it is notified that he is a sex offender, which will occur with
12 the new community registration laws and website community notification to which he will be
13 subject. Doe F is in very bad emotional health and requires the help of his wife of 13 years and
14
daughter who lives with him. His daughter has a 20 month old child. He has great anxiety over
15
the new law and does not understand its effect on him. He never was on lifetime supervision but
16
17 now fears that he will arbitrarily be placed on it and will no longer be able to live with his
18 daughter. Ifhe is subject to movement and residency restrictions he will definitely lose his job
19
as he is a limo driver and would no longer be able to go to any location that is 500 feet from
20
schools, parks, day cares, etc. His apartment is close to Cimmeron High School. Doe F also
21
22 relies heavily on the support of his extended family that live in Michigan and Washington, both
23 of which have children. The travel restrictions in the new law will place a great burden on his
24 entire family.
25
80. Plaintiff Doe G is a resident of Las Vegas and Clark County, Nevada. Doe G was
26
convicted of Attempted Sexual Assault in 1983 in Colorado. In 1986 he was released from
27
28 supervision and in 1998 he moved to Las Vegas for work. He has been married for 21 years and
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1 currently lives with his wife and his stepson and stepson's wife and granddaughter. At
2
sentencing, he was never advised of or sentenced to Lifetime Supervision. His only requirement
3
was to register yearly with the central repository. He has recently been notified that he will be
4
5 changed from Tier I to Tier III and that he will now have to register in person every 90 days.
6 This will require him to take an entire day off work and could cause him to lose his job as an

7 area manager where he currently earns a six figure income. Doe G and his wife are extremely
B
distraught and confused with the new law and have caused them great stress and anxiety. They
9
have even lost sleep and appetite. If Doe G is subject to lifetime supervision, as many do believe
lO
II will be the case with the enactment of the new law, then Doe G, will be required to sell his home

l2 of II years, resulting in a huge finaneialloss to him and his family as he lives within 500 feet of

l3 a school and near a bus stop. The community notification requirements could also cause Doe

14
G's stepson to lose custody of his daughter because his stepson is financially unable to move out
l5
of Doe G's home.
l6

l7

81. Plaintiffs Doe H through S, are all similarly situated as above mentioned Does A-

l8 G in that they are residents of Clark County, Nevada, have prior sex offender convictions and
19 have been notified that their Tier I or Tier II sex offender status will be changed to either a Tier
20
II or Tier III status. These Doe' s will all suffer harm in the same manner and effect as Does A-
2l
G, such as: loss of employment, community backlash. and being forced to move from their
22
23 homes, if the new registration, community notification, and movement/residency restriction laws

24 are placed into effect.
25
/1/
26
1//
27
28 /1/

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1

2

V. FIRST CAUSE OF ACTION

3

Violation of the Fourteenth Amendment to the

United States Constitution under 42 U.S.c. § 1983

4

(Due Process)

5
82. Plaintiffs incorporate by reference each and every allegation contained in the

6
preceding paragraphs as set forth fully herein.
7

8

83 . Pursuant to 42 U.S.C. Section 1983, this claim is brought by all Plaintiffs against

9 all State Defendants, by Does 3 and 5, and Doe A against the Reno Law Enforcement

10 Defendants, by Does 1,2 and 6 and Does B, C, E, F, G against Defendants Roger and Gillespie,

11
by Doe 4 against Defendants Roger and Forti, and Doe 0 against Defendants Roger and
12
Henderson Law Enforcement
13

14

84. The New Sex Offender Laws are vague and ambiguous and fail to sufficiently

15 define who is subject to the laws, what their effects are, and what the penalties for failure to

16 comply with them are, in violation of the Due Process Clause of the Fourteenth Amendment to
17
the United States Constitution.
18
85. The New Sex Offender Laws also violate the Due Process Clause because they
19
20 reassess offenders and subject them to new restrictions and requirements, regardless of any

21 actual risk to society and without the possibility of any hearing and without any requirement by

22 the State of Nevada to provide offenders with any notice of their classification or any new

23
prohibitions or requirements.
24

25

86. Further, the New Sex Offender Laws violate the Due Process Clause of the U.S .

26 Constitution because they fail to rationally further any legitimate governmental purpose.

27

28

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1

87. Finally, the New Sex Offender Laws violate the Due Process Clause of the U.S.

2
Constitution because they vary the terms contained in the plea agreements of Does I -5 and Does

3
A-G.
4

5

88. Each of the Plaintiffs has been, or imminently will be, injured by these

6 constitutional violations, and the Plaintiffs are entitled to declaratory and injunctive relief..

7

8
VI. SECOND CAUSE OF ACTION

9

Violation of the First Amendment to the

United States Constitntion under 42 U.S.c. § 1983

10

(Free Exercise of Religion)

11
89. Plaintiffs incorporate by reference each and every allegation contained in the
12
preceding paragraphs as set forth fully herein.
13

14

90. Pursuant to 42 U.S.c. Section 1983, this claim is brought by all Plaintiffs against

15 all State Defendants, by Does 3 and 5, and Doe A against the Reno Law Enforcement

16 Defendants, by Does I. 2 and 6, and Does B, C, E, F, G against Defendants Roger and Gillespie,
17
by Doe 4 against Defendants Roger and Forti, and Doe D against Defendants Roger and
18
Henderson Law Enforcement.
19

20

91. Because churches and other places of worship fall within the places certain sex

2 1 offenders may not "knowingly be" within 500 feet of under SB471 regardless of the actual

22
known risk offenders. SB471 improperly interferes with offenders' right to practice religion

23
without undue governmental interference.
24

25

92. The Plaintiffs have been, or imminently will be, injured by these constitutional

26 violations, and the Plaintiffs are entitled to declaratory and injunctive relief.

27

28

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Case 2:08-cv-00822-JCM-PAL Document 29 Filed 07/07/08 Page 37 of 47

1

VII. THIRD CAUSE OF ACTION

2

Violation of the Fourteenth Amendment to the

United States Constitution under 42 U.S.c. § 1983

3

(Substantive Due Process)

4

93. Plaintiffs incorporate by reference each and every allegation contained in the

5
preceding paragraphs as set forth fully herein.
6
94. Pursuant to 42 U.S.C. Section 1983, this claim is brought by all Plaintiffs against
7

8 all State Defendants, by Does 3 and 5, and Doe A against the Reno Law Enforcement

9 Defendants, by Does 1,2 and 6, and Does B, C, E, F, G against Defendants Roger and Gillespie,

10 by Doe 4 against Defendants Roger and Forti, and Doe 0 against Defendants Roger and
11
Henderson Law Enforcement.
12
95. By impacting on the Does' ability to travel throughout Nevada. attend church or
13
14 other religious services, go to Court or attorney offices, parent their children, and live with their

15 families, the New Sex Offender Laws impinge on their fundamental rights to free association,

1 6 travel, and to raise their children without undue governmental interference.
17
96. Each of the Plaintiffs has been, or imminently will be, injured by these
18
constitutional violations, and the Plaintiffs are entitled to declaratory and injunctive relief.
19

20

VIII. FOURTH CAUSE OF ACTION

Violation of the Fourteenth Amendment to the

21

United States Constitution under 42 U.S.C. § 1983

22

(Equal Protection)

23

97. Plaintiffs incorporate by reference each and every allegation contained in the

24 preceding paragraphs as set forth fully herein.
25
98. Pursuant to 42 U.S.c. Section 1983, this claim is brought by all Plaintiffs against
26
all State Defendants, by Does 3 and 5, and Doe A against the Reno Law Enforcement
27
28 Defendants, by Does 1,2 and 6, and Does B, C, E, F, G against Defendants Roger and Gillespie,

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Case 2:08-cv-00822-JCM-PAL Document 29 Filed 07/07/08 Page 38 of 47

1 by Doe 4 against Defendants Roger and Forti, and Doe 0 against Defendants Roger and

2
Henderson Law Enforcement.
3
99. These laws are irrational, and designed only to burden an unpopular group. New
4
Sex Offender Laws thus violate the Equal Protection Clause of the U.S. Constitution.
5

6

100. Each ofthe Plaintiffs has been, or imminently will be, injured by these

7 constitutional violations, and the Plaintiffs are entitled to declaratory and injunctive relief.
8

9

IX. FIFTH CAUSE OF ACTION

10

Violation of Eighth Amendment to the U.S. Constitution

11

United States Constitution under 42 U.S.c. § 1983

(Cruel and Unusual Punishment)

12

101. Plaintiffs incorporate by reference each and every allegation contained in the
13

14 preceding paragraphs as set forth fully herein.

15

102. Pursuant to 42 U.S.C. Section 1983, this claim is brought by all Plaintiffs against

16 all State Defendants, by Does 3 and 5, and Doe A against the Reno Law Enforcement
17
Defendants, by Does 1, 2 and 6, and Does B, C, E, F, G against Defendants Roger and Gillespie,
18
by Doe 4 against Defendants Roger and Forti, and Doe 0 against Defendants Roger and
19
20 Henderson Law Enforcement.

21

103. AB579 and SB471 impose extensive punishments, both on persons previously

22 convicted of sexual offenses and prospectively, that are excessive in relation to the crimes
23
offenders are convicted of. For example, anyone convicted of any crime with any "sexual
24
element'" or any crime that is "sexually motivated'" since July I, 1956 is considered a sex
25

26 offender under the New Sex Offender Laws and is subject to community notification and

27 registration requirements.
28

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1

104. All new Tier III offenders, including the Plaintiffs, will now be subject to both

2
extensive duties and extensive restrictions.
3
105. Similarly, Doe I, for example, pled guilty to inappropriately touching a student-
4
5 which he did on one occasion, for moments, and over the clothes - in 1986, over thirty years ago.

6 He was never sentenced to time in prison, and successfully finished probation and the other

7 terms of his plea agreement. The State of Nevada has evaluated Doe I and has determined that
8
he is not a risk. Now, years later, he is being classified a Tier III offender, the highest risk
9
offender. As such, he must register every 90-days and is subject to community notification (not
10
11 only will his picture, name, address and other information be posted on the website, but his

12 neighbors will be notified), and he may have to leave the house he shares with his wife.

13

106. Community notification can subject offenders to violence at the hands of

14
vigilantes. Human Rights Watch, in a comprehensive 2007 study of sex offender laws (laws that
15
were far less extreme than the New Sex Offender Laws about to be implemented in Nevada) and
16

17 their effects and utility, found that public safety was not furthered by expansive notification and

18 restriction provisions, but offenders were subjected to vigilantism:

19

Information provided by state online sex offender registries, as well as

20

information provided during community notification by law enforcement, is not

just used by private citizens to determine what streets their children can walk on,

21

or whom to avoid. Neighbors as well as strangers harass, intimidate and

physically assault people who have committed sex offenses. At least four
22
registered sex offenders have been killed.

23
p. 89, No Easy Answers: Sex Offender Laws in the United States," Human Rights Watch,
24

available at http://www.hrw.org/reports/2007/us0907/us0907web.pdf. Each of the Plaintiffs has
25

26 been, or imminently will be, injured by Eighth Amendment violations, and the Plaintiffs are

27 entitled to declaratory and injunctive relief.
28

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1

X. SIXTH CAUSE OF ACTION

Violation of the Article 1, § 9 of the
2
United States Constitution under 42 U.S.C. § 1983

3

(Ex Post Facto)

4

107. Plaintiffs incorporate by reference each and every allegation contained in the

5
preceding paragraphs as set forth fully herein.
6
108. Pursuant to 42 U.S.c. Section 1983, this claim is brought by all Plaintiffs against
7
B all State Defendants. by Does 3 and 5. and Doe A against the Reno Law Enforcement

9 Defendants. by Does 1, 2 and 6. and Does B. C, E, F. G against Defendants Roger and Gillespie,

10 by Doe 4 against Defendants Roger and Forti. and Doe 0 against Defendants Roger and
11
Henderson Law Enforcement.
12
109. The effect and intent of AB579 and SB471 are both punitive, and the New Sex
13
14 Offender Laws impose new punishments on Plaintiffs, including but not limited to the

15 affirmative disability of having to register in person every 90 days, banishment from their

16 families and communities, on offenders convicted before their enactment.
17
110. Each of the Plaintiffs has been, or imminently will be, injured by these
IB
constitutional violations, and the Plaintiffs are entitled to declaratory and injunctive relief.
19

20

XI. SEVENTH CAUSE OF ACTION

Violation of the Fifth Amendment to the

21

United States Constitution under 42 U.S.C. § 1983

22

(Double Jeopardy)

23

Ill . Plaintiffs incorporate by reference each and every allegation contained in the

24 preceding paragraphs as set forth fully herein.
25
112. Pursuant to 42 U.S.c. Section 1983, this claim is brought by all Plaintiffs against
26
all State Defendants, by Does 3 and 5, and Doe A against the Reno Law Enforcement
27
2B Defendants, by Does 1, 2 and 6, and Does B, C, E. F, G against Defendants Roger and Gillespie,

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Case 2:08-cv-00822-JCM-PAL Document 29 Filed 07/07/08 Page 41 of 47

1 by Doe 4 against Defendants Roger and Forti, and Doe D against Defendants Roger and
2
Henderson Law Enforcement.
3
I \3. The New Sex Offender Laws impose new punishments on persons previously
4
convicted, and impose registration duties, community notification, and movement and residence
5

6 restrictions based on the crime originally committed, rather than any actual risk of recidivism, in

7 violation of the Double Jeopardy Clause of the U.S. Constitution.
8
114. Each of the Plaintiffs has been, or imminently will be, injured by these
9
constitutional violations, and the Plaintiffs are entitled to declaratory and injunctive relief.
10

11
XII. EIGHTH CAUSE OF ACTION

12

Violation of Article 1, section 10 to the

United States Constitution under 42 U.S.c. § 1983

13

(Contracts Clause)

14
117. Plaintiffs incorporate by reference each and every allegation contained in the
15
preceding paragraphs as set forth fully herein.
16

17

118. Pursuant to 42 U.S.c. Section 1983, this claim is brought by all Plaintiffs against

18 all State Defendants, by Does 3 and 5, and Doe A against the Reno Law Enforcement

19
Defendants, by Does 1,2 and 6, and Does B, C, E, F, G against Defendants Roger and Gillespie,
20
by Doe 4 against Defendants Roger and Forti, and Doe D against Defendants Roger and
21
Henderson Law Enforcement.
22

23

119. The New Sex Offender Laws operate as a substantial impairment to the pre-

24 existing contractual relationship between the state and Plaintiffs Guilty Plea Agreements by
25
imposing new terms not negotiated which drastically increase, and, or require lifetime
26
supervision, registration and community notification.
27

28

- 41-
COMPLAINT

Case 2:08-cv-00822-JCM-PAL Document 29 Filed 07/07/08 Page 42 of 47

1

120. Each of the Plaintiffs has been, or imminently will be, injured by these

2
constitutional violations, and the Plaintiffs are entitled to declaratory and injunctive relief.

3

XIII. NINTH CAUSE OF ACTION

4

Violation of the Article I, Section 15 to the

5

Nevada Constitution

(State Contract Clause)

6
liS. Plaintiffs incorporate by reference each and every allegation contained in the
7

8 preceding paragraphs as set forth fully herein.

9

116. This claim is brought by all Plaintiffs against all State Defendants, by Does 3 and

10 5, and Doe A against the Reno Law Enforcement Defendants, by Does I, 2 and 6, and Does B,

11
C, E, F, G against Defendants Roger and Gillespie, by Doe 4 against Defendants Roger and
12
Forti, and Doe D against Defendants Roger and Henderson Law Enforcement.
13

14

117. For the same reasons that the New Sex Offender Laws violate the contacts clause

15 of the U.S. Constitution, they violate the contracts clause of the Nevada Constitution.

16

17

XIV. TENTH CAUSE OF ACTION

Violation of the Fifth Amendment to the

18

United States Constitution under 42 U.S.c. § 1983

(Takings Clause)
19

20
121. Plaintiffs incorporate by reference each and every allegation contained in the
21
preceding paragraphs as set forth fully herein
22

23

122. Pursuant to 42 U.S.c. Section 1983, This claim is brought by all Plaintiffs agains

24 all State Defendants, by Does 3 and 5, and Doe A against the Reno Law Enforcement
25
Defendants, by Does 1, 2 and 6, and Does B, C, E, F, G against Defendants Roger and Gillespie,
26
by Doe 4 against Defendants Roger and Forti, and Doe D against Defendants Roger and
27
28 Henderson Law Enforcement.

- 42-
COMPLAINT

Case 2:08-cv-00822-JCM-PAL Document 29 Filed 07/07/08 Page 43 of 47

1

123. The New Sex Offender Laws, by placing residential and movement restrictions on

2
Plaintiffs. unconstitutionally restricts Plaintiffs property rights to the point that it constitutes a

3
regulatory taking requiring just compensation.
4

5

124. Each of the Plaintiffs has been, or imminently will be, injured by these

6 constitutional violations, and the Plaintiffs are entitled to declaratory and injunctive relief.

7

8
XV. ELEVENTH CAUSE OF ACTION

9

Violation of Article III, Section I ofthe

Nevada Constitution

10

(Separation of Powers)

11

12

125. Plaintiffs incorporate by reference each and every allegation contained in the

13 preceding paragraphs as set forth fully herein.
14
126. This claim is brought by all Plaintiffs against all State Defendants, by Does 3 and
15
5, and Doe A against the Reno Law Enforcement Defendants, by Does 1, 2 and 6, and Does B,
16
17 C, E, F, G against Defendants Roger and Gillespie, by Doe 4 against Defendants Roger and

18 Forti, and Doe 0 against Defendants Roger and Henderson Law Enforcement.

19

127. The New Sex Offender Laws violates the States Separation of Powers doctrine as

20
it limits the judicial power of sentence finality as the law vacates existing court judgments
21

regarding sex offenders' classifications, and community notification and reverse final court
22

23 judgments setting the length of time that sex offenders must register.

24

128. Each of the Plaintiffs has been, or imminently will be, injured by these

25
constitutional violations, and the Plaintiffs are entitled to declaratory and injunctive relief.
26

27

28

- 43-
COMPLAINT

Case 2:08-cv-00822-JCM-PAL Document 29 Filed 07/07/08 Page 44 of 47

1

XVI. PRAYER FOR RELIEF

2

3

WHEREFORE, Plaintiffs request this Honorable Court for the following:

4

a. A declaration that AB579 and SB471 violate, both facially and as applied by th

5
Defendants, the due process clause of the U.S. Constitution (U.S. CONST., Amend, XIV):
6
b. A declaration that AB579 and SB471 violate, both facially and as applied by the
7
Defendants, the due process clause of the Nevada Constitution (NEV. CONST., Art. 1, § 8, cl. 5);
8

9

c. A declaration that SB471 violates, both facially and as applied by the Defendants,

10 the First Amendment to the United States Constitution (U.S. CONST., Amend, I);
11
d. A declaration that SB471 violates, both facially and as applied by the Defendants
12
the right to practice religion without governmental inference protected by the Nevad
13
14 Constitution (NEV. CONST., Art. 1, § 4, cl. 5);

15

e. A declaration that AB579 and B471 violate, both facially and as applied by the

16 Defendants, the equal protection clause of the United States Constitution (U.S. CONST. , Amend,

17
IV);
18

19

f.

A declaration that AB579 and SB471 violate, both facially and as applied by th

20 Defendants, the right to equal protection guaranteed by the Nevada Constitution (NEV. CONST.

21 Art. 1, § 1);

22
g. A declaration that AB579 and SB471 violate, both facially and as applied by the
23
Defendants, the prohibition against cruel and unusual punishment contained in the United States
24
25 Constitution (U .S. CONST., Amend, VIII):

26

h. A declaration that AB579 and SB471 violate, both facially and as applied by th

27 Defendants, the prohibition against cruel and unusual punishment contained in the Nevad
28
Constitution (NEV. CONST., Art. I, § 8, cl. 5);
·44·

COMPLAINT

Case 2:08-cv-00822-JCM-PAL Document 29 Filed 07/07/08 Page 45 of 47

1

I.

A declaration that A8579 and S8471 violate, both facially and as applied by the

2 Defendants, the ex post facto clause of the United States Constitution (U.S. CONST., Art. I, §9,

3
cl.IO);
4

5

J.

A declaration that AB579 and SB471 violate, both facially and as applied by the

6 Defendants, the ex post facto clause of the Nevada Constitution (NEV. CONST., Art. I, §IS);

7

k. A declaration that ABS79 and SB471 violate, both facially and as applied by the

8
Defendants, the double jeopardy clause of the United States Constitution (U.S. CONST., Am. V,
9
Am . XIV);
10

11

l.

A declaration that ABS79 and SB471 violate, both facially and as applied by the

12 Defendants, the double jeopardy facto clause of the Nevada Constitution (NEV. CONST., Art. I ,

13 §8, cl. I);

14
m. A declaration that A8579 and SB471 violate, both facially and as applied by the
15
Defendants, the contracts clause of the United States Constitution (U .S. CONST., Art. I, § 10);
16

17

n.

A declaration that ABS79 and SB471 violate, both facially and as applied by the

18 Defendants, the contracts clause of the Nevada Constitution (NEV. CONST., Art. I , § I S);

19

o. A declaration that A8S79 and SB47 Iviolates, both facially and as applied by the

20
Defendants, the takings clause ofthe United States Constitution (U .S. CONST., Amend. V);
21

p. A declaration that AB579 and SB471 violate, both facially and as applied by the
22

23 Defendants, the takings clause ofthe Nevada Constitution (NEV. CONST., Art. I, § 9, cl. 6);

24

q. A declaration that A8579 and 8471 violate, both facially and as applied by the

25
Defendants, the separation of powers doctrine of the Nevada Constitution (NEV. CONST., Art. 3,
26
§ I, cl. I);
27

28

- 45-
COMPLAINT

Case 2:08-cv-00822-JCM-PAL Document 29 Filed 07/07/08 Page 46 of 47

1

I.

A declaration that AB579 and SB471 violate, both facially and as applied by the

2
Defendants, the ex post facto clause of the United States Constitution (U.S. CONST., Art. I, §9,

3
c1.10);
4

5

J.

A declaration that AB579 and SB471 violate, both faciaJly and as applied by the

6 Defendants, the ex post facto clause of the Nevada Constitution (NEV. CONST., Art. 1, §15);

7

k.

A declaration that AB579 and SB471 violate, both facially and as applied by the

8
Defendants, the double jeopardy clause of the United States Constitution (U.S. CONST., Am. V,
9
Am. XIV);
10

11

I.

A declaration that AB579 and SB471 violate, both facially and as applied by the

12 Defendants, the double jeopardy facto clause of the Nevada Constitution (NEV. CONST., Art. I,

13 §8, cl. 1);

14
m. A declaration that AB579 and SB471 violate, both facially and as applied by the
15
Defendants, the contracts clause of the United States Constitution (U.S. CONST., Art. I, § 10);
16

17

n. A declaration that AB579 and SB471 violate, both facially and as applied by the

18 Defendants, the contracts clause of the Nevada Constitution (NEV. CONST., Art. I, § IS);

19

o. A declaration that AB579 and SB471 violates, both facially and as applied by the

20
Defendants, the takings clause of the United States Constitution (U .S. CONST., Amend. V);
21

p.

A declaration that AB579 and SB471 violate, both facially and as applied by the

22

23 Defendants, the takings clause ofthe Nevada Constitution (NEV. CONST., Art. I, § 9, cl. 6);

24

q. A declaration that AB579 and B471 violate, both facially and as applied by the

25
Defendants, the separation of powers doctrine of the Nevada Constitution (NEV. CONST., Art. 3,
26
§ 1, cl. 1);
27

28

- 45-
COMPLAINT

Case 2:08-cv-00822-JCM-PAL Document 29 Filed 07/07/08 Page 47 of 47

1

r.

2
SB471;

3
s.
4

5

t.

A penn anent injunction prohibiting each defendant from enforcing AB579 an
Reasonable costs and attorneys fees; and Any further relief the Court deems appropriate.

6

7

XVII. DEMAND FOR JURY TRIAL

8

Plaintiffs demand a trial by jury on all causes of action.

9

10

11
12 DATED:

July 7,2008

ACLU of NEVADA, Attorneys for Does 1-5

13

By:

/s/

Margaret A. McLetchie
14

15
DATED:
16
17
18

July 7. 2008

ROBERT L. LANGFORD & ASSOCIATES, Attorneys for Does A-G

By:

/s/

Robert L. Langford

19

20

21

22

23

24

25

26

27

28

- 46-
COMPLAINT

 
 Case 2:08-cv-00822-JCM-PAL Document 58 Filed 07/28/08 Page 1 of 5

1 Margaret A. McLetchie, Bar No. 10931 Allen Lichtenstein, Bar No. 3992
2 Lee Rowland, Bar No. 10209 ACLU OF NEVADA
3 732 S. Sixth Street, Suite 200A Las Vegas, NV 89101
4 (702) 366-1902 mcletchie@aclunv.org
5 Attorneys for Plaintiffs Does 1-8
6 Robert L. Langford, Bar No. 3988 7 ROBERT L. LANGFORD & ASSOCIATES
616 S. Eighth Street 8 Las Vegas, Nevada 89101
(702) 471-6535 9 robert@robertlangford.com 10 Attorneys for Plaintiffs Does A-S

11
UNITED STATES DISTRICT COURT
12
DISTRICT OF NEVADA
13

14 The American Civil Liberties Union of Nevada, Does 1- 2:08-cv-00822-JCM-PAL

8 and Does A-S, individuals,
15

STIPULATION TO DISMISS

16
v.

Plaintiffs,

CERTAIN NAMED DEFENDANTS

17

Catherine Cortez Masto, Attorney General of the State 18 of Nevada; Jerald Hafen, Director of the Nevada

19 Department of Public Safety; Bernard W. Curtis, Chief, Parole and Probation Division of the Nevada

20 Department of Public Safety; Captain P.K. O’Neill,

Chief, Records and Technology Division of the Nevada 21 Department of Public Safety; Michael Haley, Sheriff of

22 the Washoe County Sheriff’s Office; Michael Poehlman, Chief of the Reno Police Department;

23 Richard A. Gammick, District Attorney of Washoe

County; Douglas Gillespie, Sheriff of the Las Vegas 24 Metropolitan Police Department; Joseph Forti, Chief of

25 the North Las Vegas Police Department; David Roger, District Attorney of Clark County; Chief Richard

26 Perkins, Henderson Police Department,

27

Defendants.

28

- 1-

STIPULATION TO DISMISS DEFENDANTS

CasCea2s:e082-:0cv8-0c0v-802028-2JC2-MJC-PMA-LPALDoDcoucmuemnetn5t158 FFilieledd0077/2/248/2/00808PagPeag2eo2f 5of 5
1
2
The Americans Civil Liberties Union (“ACLU”), Does 1-8 , and Does A-S (“Doe
3
Plaintiffs)(collectively “Plaintiffs”), by and through their attorneys of record, Robert Langford,
4
Esq. and Margaret McLetchie, Esq., and Defendants Douglas Gillespie, Sheriff of the Las Vegas
5
Metropolitan Police Department (“Gillespie”); Joseph Forti, Chief of the North Las Vegas Police
6
Department (“Forti”); David Roger, District Attorney of Clark County (“Roger”); and Chief
7
Richard Perkins, Henderson Police Department (“Perkins”), ( collectively the “Clark County
8
Local Law Enforcement Defendants”), by and through their respective undersigned counsel,
9
hereby stipulate and agree that all claims asserted by the Plaintiffs and against the Law
10
Enforcement Defendants, whether known or unknown, shall be dismissed WITHOUT prejudice.
11
12
It is further agreed that Plaintiffs and the Clark County Law Enforcement Defendants
13
shall each bear their own attorneys’ fees and costs and shall not be subject to any award of
14
attorneys’ fees, costs, or damages arising from the above-entitled action.
15
16
It is further agreed that the Law Enforcement Defendants will be subject to and shall
17
abide by the Preliminary Injunction ordered in this case by the District Court, Honorable James
18
Mahan, as well as any other injunction or declarative relief granted in the above-captioned matter
19
or any appeal therefrom to the Ninth Circuit Court of Appeals or the United States Supreme
20
Court, provided, however, the Law Enforcement Defendants shall not be liable for any damages
21
ordered in any such order, decree or judgment, including any award of attorneys fees or costs.
22
23
It is further agreed that Plaintiffs shall immediately, or as soon as reasonably possible,
24
notify the Law Enforcement Defendants of any order, injunction or decree or modification or
25
termination of any such order, injunction or decree issued in the above-captioned matter by the
26
district court, or from the Ninth Circuit Court of Appeals or the United States Supreme Court.
27
28
- 2-
STIPULATION TO DISMISS DEFENDANTS

CasCea2s:e082-:0cv8-0c0v-802028-2JC2-MJC-PMA-LPALDoDcoucmuemnetn5t158 FFilieledd0077/2/248/2/00808PagPeag3eo3f 5of 5

1

The Plaintiffs and Local Law Enforcement Defendants accordingly respectfully request

2
this Court for an Order dismissing the action pursuant to Rule 41(a)(1)(ii) of the Federal Rules of
3
Civil Procedure and Local Rules 6-2 and 7-1 of the United States District Court for the District
4
5 of Nevada.

6

Dated this 24th day of July, 2008

7

8
_______/s/__________________

9

ROBERT L. LANGFORD, ESQ.

Counsel for Plaintiffs Does A- S
10

_____ /s/_______________ MARGARET A. McLETCHIE, ESQ Counsel for Plaintiffs ACLU and Does 1-8

11
_______/s/__________________

_______/s/__________________

12

STEPHANIE BAKER, ESQ.

NICK

D. CROSBY, ESQ.

Counsel for David Roger.
13

Counsel for Sheriff Douglas Gillespie

14

_______/s/__________________

15

CHRIS DAVIS, ESQ.

Counsel for Chief Joseph Forti
16

_______/s/__________________ ROBERT ZENTZ, ESQ. Counsel for Chief Richard Perkins

17

18

19

20

21

22

23

IT IS SO ORDERED this _2_8t_hddaayy of J_u_ly_,_2_0_0_8_.___, 2008.

24

_______________________________________

25

UNITED

STATES DISTRICT COURT JUDGE

26

27

28 - 3-

STIPULATION TO DISMISS DEFENDANTS

CasCea2s:e082-:0cv8-0c0v-802028-2JC2-MJC-PMA-LPALDoDcoucmuemnetn5t158 FFilieledd0077/2/248/2/00808PagPeag4eo4f 5of 5

1

ATTESTATION

2

3
I hereby attest that I have permission to electronically sign for Stephanie Barker, Nick D.
4
5 Crosby, Chris Davis, and Robert Zentz (“Signing Defense Counsel”). I also attest that I have on
6 file copies of signatures for the Signing Defense Counsel.

7

8
Dated: July 24, 2008
9
_____ /s/______________ 10 MARGARET A. McLETCHIE 11 Counsel for Plaintiffs ACLU and Does 1-8

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 - 4-

STIPULATION TO DISMISS DEFENDANTS

CasCea2s:e082-:0cv8-0c0v-802028-2JC2-MJC-PMA-LPALDoDcoucmuemnetn5t158 FFilieledd0077/2/248/2/00808PagPeag5eo5f 5of 5

1

CERTIFICATE OF SERVICE

2

3
Pursuant to LR 5-4, service of the foregoing on each of the defendants was completed by
4
5 electronic filing.

6

7 Dated: July 24, 2008
8
_____ /s/______________ 9 MARGARET A. McLETCHIE
Counsel for Plaintiffs ACLU and Does 1-8
10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 - 5-

STIPULATION TO DISMISS DEFENDANTS

 
 Case 2:08-cv-00822-JCM-PAL Document 61 Filed 07/28/08 Page 1 of 5

1 Margaret A. McLetchie, Bar No. 10931 Allen Lichtenstein, Bar No. 3992
2 Lee Rowland, Bar No. 10209 ACLU OF NEVADA
3 732 S. Sixth Street, Suite 200A Las Vegas, NV 89101
4 (702) 366-1902 mcletchie@aclunv.org
5 Attorneys for Plaintiffs Does 1-8
6 Robert L. Langford, Bar No. 3988 7 ROBERT L. LANGFORD & ASSOCIATES
616 S. Eighth Street 8 Las Vegas, Nevada 89101
(702) 471-6535 9 robert@robertlangford.com 10 Attorneys for Plaintiffs Does A-S

11
UNITED STATES DISTRICT COURT
12
DISTRICT OF NEVADA
13

14 The American Civil Liberties Union of Nevada, Does 1- 2:08-cv-00822-JCM-PAL

8 and Does A-S, individuals,
15

STIPULATION TO DISMISS

16
v.

Plaintiffs,

CERTAIN NAMED DEFENDANTS (GAMMICK AND HALEY)

17

Catherine Cortez Masto, Attorney General of the State 18 of Nevada; Jerald Hafen, Director of the Nevada

19 Department of Public Safety; Bernard W. Curtis, Chief, Parole and Probation Division of the Nevada

20 Department of Public Safety; Captain P.K. O’Neill,

Chief, Records and Technology Division of the Nevada 21 Department of Public Safety; Michael Haley, Sheriff of

22 the Washoe County Sheriff’s Office; Michael Poehlman, Chief of the Reno Police Department;

23 Richard A. Gammick, District Attorney of Washoe

County; Douglas Gillespie, Sheriff of the Las Vegas 24 Metropolitan Police Department; Joseph Forti, Chief of

25 the North Las Vegas Police Department; David Roger, District Attorney of Clark County; Chief Richard

26 Perkins, Henderson Police Department,

27

Defendants.

28

- 1-

STIPULATION TO DISMISS DEFENDANTS GAMMICK AND HALEY

CasCea2s:e082-:0cv8-0c0v-802028-2JC2-MJC-PMA-LPALDoDcoucmuemnetn5t461 FFilieledd0077/2/248/2/00808PagPeag2eo2f 5of 5

1

The Americans Civil Liberties Union (“ACLU”), Does 1-8 , and Does A-S (“Doe

2 Plaintiffs)(collectively “Plaintiffs”), by and through their attorneys of record, Robert Langford,

3 Esq. and Margaret McLetchie, Esq., and Defendants Michael Haley, Sheriff of the Washoe

4 County Sheriff’s Office (“Haley”); and Richard A. Gammick, District Attorney of Washoe

5 County (“Gammick”)(collectively the “Washoe County Defendants”), by and through their

6 respective undersigned counsel, hereby stipulate and agree that all claims asserted by the

7 Plaintiffs and against the Washoe County Defendants, whether known or unknown, shall be

8 dismissed WITHOUT prejudice.

9

It is further agreed that Plaintiffs and the Washoe County Law Enforcement Defendants

10 shall each bear their own attorneys’ fees and costs and shall not be subject to any award of

11 attorneys’ fees, costs, or damages arising from the above-entitled action.

12

It is further agreed that the Washoe County Local Law Enforcement Defendants will be

13 subject to and shall abide by the Preliminary Injunction ordered in this case by the District Court,

14 Honorable James Mahan, as well as any other injunction or declarative relief granted in the

15 above-captioned matter or any appeal therefrom to the Ninth Circuit Court of Appeals or the

16 United States Supreme Court, provided, however, the Washoe County Local Law Enforcement

17 Defendants shall not be liable for any damages ordered in any such order, decree or judgment,

18 including any award of attorneys fees or costs.

19

It is further agreed that the Washoe County Defendants withdraw their “Opposition to

20 Plaintiff’s Request for Protective Order” (Document #39) filed on July 10, 2008.

21

It is further agreed that Plaintiffs shall immediately, or as soon as reasonably possible,

22 notify the Washoe County Defendants of any order, injunction or decree or modification or

23 termination of any such order, injunction or decree issued in the above-captioned matter by the

24 district court, or from the Ninth Circuit Court of Appeals or the United States Supreme Court.

25

The Plaintiffs and Washoe County Defendants accordingly respectfully request this Court

26
for an Order dismissing the action pursuant to Rule 41(a)(1)(ii) of the Federal Rules of Civil
27

28 - 2-

STIPULATION TO DISMISS DEFENDANTS GAMMICK AND HALEY

CasCea2s:e082-:0cv8-0c0v-802028-2JC2-MJC-PMA-LPALDoDcoucmuemnetn5t461 FFilieledd0077/2/248/2/00808PagPeag3eo3f 5of 5

1 Procedure and Local Rules 6-2 and 7-1 of the United States District Court for the District of
2
Nevada.
3
Dated this 24th_ day of July, 2008
4

5

6

_______/s_________________

ROBERT L. LANGFORD, ESQ.

7

Counsel for Plaintiffs Does A- S

8

_____

__/s__________

MARGARET A. McLETCHIE, ESQ.

Counsel for Plaintiffs ACLU and Does 1-8

9

______/s

___________

DAVID CREEKMAN, ESQ.

10

Counsel for Richard A. Gammick

11

12

_____/s_______________

MARY KANDARAS, ESQ.

.

13

Counsel for Michael Haley

14

15

16

17

18

19

IT IS SO ORDERED this _2_8t_hddaayy off J_u_ly_,_2_0_0_8_. ___, 2008.

20

_______________________________________

21

UNITED

STATES DISTRICT COURT JUDGE

22

23

24

25

26

27

28 - 3-

STIPULATION TO DISMISS DEFENDANTS GAMMICK AND HALEY

CasCea2s:e082-:0cv8-0c0v-802028-2JC2-MJC-PMA-LPALDoDcoucmuemnetn5t461 FFilieledd0077/2/248/2/00808PagPeag4eo4f 5of 5

1

ATTESTATION

2

3
I hereby attest that I have permission to electronically sign for David Creekman and Mary
4
5 Campbell (“Signing Defense Counsel”). I also attest that I have on file copies of signatures for
6 the Signing Defense Counsel.

7

8
Dated: July 24, 2008
9
_____ ______________ 10 MARGARET A. McLETCHIE 11 Counsel for Plaintiffs ACLU and Does 1-8

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 - 4-

STIPULATION TO DISMISS DEFENDANTS GAMMICK AND HALEY

CasCea2s:e082-:0cv8-0c0v-802028-2JC2-MJC-PMA-LPALDoDcoucmuemnetn5t461 FFilieledd0077/2/248/2/00808PagPeag5eo5f 5of 5

1

CERTIFICATE OF SERVICE

2

3
Pursuant to LR 5-4, service of the foregoing on each of the defendants was completed by
4
5 electronic filing.

6

7 Dated: July 24, 2008

8
_____ /s

_______

9 MARGARET A. McLETCHIE

Counsel for Plaintiffs ACLU and Does 1-8
10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 - 5-

STIPULATION TO DISMISS DEFENDANTS GAMMICK AND HALEY

 
 Case 2:08-cv-00822-JCM-PAL Document 66 Filed 08/18/08 Page 1 of 8

1

2

3

4

UNITED STATES DISTRICT COURT

5

DISTRICT OF NEVADA

6

7 THE AMERICAN CIVIL LIBERTIES UNION )

OF NEVADA, et al.

)

8

)

Plaintiffs, )

9

)

vs.

)

10

)

MASTO, et al.,

)

11

)

)

12

Defendants. )

__________________________________________)

13

Case No. 08-cv-00822-JCM-PAL ORDER
(Motion for Protective Order #9)

14

The Court conducted a hearing on August 12, 2008 Plaintiff’s Motion for and Memorandum in

15 Support of Protective Order to Allow Plaintiff’s [sic] to Proceed Using Pseudonyms Does 1-5 and Does

16 A-G (the “Motion”) (Docket No. 9) filed by Plaintiffs The American Civil Liberties Union of Nevada, 17 Does 1-5, and Does A-G (collectively, the “Plaintiffs”).1 Robert Langford and Margaret McLetchie

18 appeared on behalf of the Plaintiffs. Kimberly Buchanan appeared on behalf of the Defendants. In

19 response to the Motion, Defendants Michael Haley and Richard A. Gammick (the “Washoe County

20 Defendants”) filed a brief in opposition (the “Opposition”) (Docket No. 39), in which Defendants

21 Catherin Cortez Masto, Gerald Hafen, Bernard W. Curtis, and Captain P.K. O’Neill (the “State of

22 Nevada Defendants,” and together with the Washoe County Defendants, the “Defendants”) joined

23 (Docket No. 51). Plaintiffs filed replies to the Opposition on July 24, 2008 (collectively, the “Reply”)

24 (Docket Nos. 52, 55). The Court has considered the Motion, the Opposition, and the Reply, as well as

25 the arguments of counsel made on the record.

26 / / /

27

28

1
Subsequent to the filing of the Motion, Plaintiffs filed an Amended Complaint, increasing the number of Plaintiffs

to Does 1-8 and Does A-S. Pursuant to Plaintiffs’ Reply (Docket No. 52), the Motion is made applicable to all Plaintiffs

named in the Amended Complaint.

Case 2:08-cv-00822-JCM-PAL Document 66 Filed 08/18/08 Page 2 of 8

1

BACKGROUND

2

This case arises out of Plaintiffs’ allegations under 42 U.S.C. § 1983 that Nevada’s sex offender

3 laws, as modified by AB579 and SB47 (the “New Sex Offender Laws”), are unconstitutional. On July

4 7, 2008, District Judge Mahan entered a preliminary injunction enjoining enforcement of certain

5 provisions of the New Sexual Offender Laws and set a briefing schedule and hearing. Plaintiffs filed

6 the current Motion, seeking a protective order to allow Plaintiffs Does 1-8 and Does A-S (collectively,

7 the “Doe Plaintiffs”) to proceed in this matter under pseudonym.

8

DISCUSSION

9

I. Applicable Legal Standard.

10

A. Protective Orders Generally.

11

Fed. R. Civ. P. 26(c) permits the court to “make any order which justice requires to protect the

12 party or person from annoyance, embarrassment, oppression or undue burden or expense” upon motion

13 by a party or a person from whom discovery is sought. The burden of persuasion under Fed. R. Civ. P.

14 26(c) is on the party seeking the protective order. Cipollone v. Liggett Group, Inc., 785 F.2d 1108,

15 1121 (3d Cir. 1986). To meet that burden of persuasion, the party seeking the protective order must

16 show good cause by demonstrating a particular need for the protection sought. Beckman Indus., Inc., v.

17 Int’l. Ins. Co., 966 F.2d 470, 476 (9th Cir. 1992). Rule 26(c) requires more than “broad allegations of

18 harm, unsubstantiated by specific examples or articulated reasoning.” Id. (citing Cipollone v. Liggett,

19 785 F.2d at 1121). “A party asserting good cause bears the burden, for each particular document it

20 seeks to protect, of showing that prejudice or harm will result if no protective order is granted.” Foltz

21 v. State Farm, 331 F.3d 1122, 1130 (9th Cir. 2003) (citing San Jose Mercury News, Inc., v. District

22 Court, 187 F.3d 1096, 1102 (9th Cir. 1999)).

23

In Seattle Times Co. v. Rhinehart, the Supreme Court interpreted the language of Fed. R. Civ. P.

24 26(c) as conferring “broad discretion on the trial court to decide when a protective order is appropriate

25 and what degree of protection is required.” 467 U.S. 20, 36 (1984). The Supreme Court acknowledged

26 that the “trial court is in the best position to weigh fairly the competing needs and interests of the parties

27 affected by discovery. The unique character of the discovery process requires that the trial court have

28 substantial latitude to fashion protective orders.” Id. Although the trial court has broad discretion in

2

Case 2:08-cv-00822-JCM-PAL Document 66 Filed 08/18/08 Page 3 of 8

1 fashioning protective orders, the Supreme Court has also recognized “a general right to inspect and

2 copy public records and documents, including judicial records and documents.” Nixon v. Warner

3 Communications, 435 U.S. 589, 597 (1978). However, the common law right to inspect and copy

4 judicial records is not absolute. Id. Thus, the Supreme Court concluded, “[e]very court has supervisory

5 power of its own records and files, and access has been denied where the court files might have become

6 a vehicle for improper purposes.” Id.

7

Unless court records are of the type “traditionally kept secret,” the Ninth Circuit recognizes a

8 “strong presumption in favor of access.” Foltz v. State Farm Mutual Auto Insurance Company, 331

9 F.3d 1122, 1135 (citing Hagestad v. Tragesser, 49 F.3d 1430, 1434 (9th Cir. 1995)). Grand jury

10 transcripts and warrant materials involved in pre-indictment investigations are two categories of

11 documents and records which have “traditionally been kept secret for important policy reasons.” Times

12 Mirror Co. v. United States, 873 F.2d 1210, 1219 (9th Cir. 1989). Although the federal common law

13 right of access exists, it “does not mandate disclosure in all cases.” San Jose Mercury News, Inc., 187

14 F.3d at 1102. The strong presumption in favor of public access recognized by the Ninth Circuit “can be

15 overcome by sufficiently important countervailing interests.” Id.

16

Recently, the Ninth Circuit comprehensively examined the presumption of public access to

17 judicial files and records in Kamakana v. City and County of Honolulu, 447 F.3d 1172 (9th Cir. 2006).

18 There, the court recognized that different interests are at stake in preserving the secrecy of materials

19 produced during discovery and materials attached to dispositive motions. Citing Phillips and Foltz, the

20 Kamakana court reiterated that a protective order issued under the Rule 26(c) may be issued once a

21 particularized showing of good cause exists for preserving the secrecy of discovery materials. “Rule

22 26(c) gives the district court much flexibility in balancing and protecting the interests of private

23 parties.” 447 F.3d at 1180. The Kamakana court, therefore, held that a “good cause” showing is

24 sufficient to seal documents produced in discovery. Id.

25

However, the Kamakana decision also held that a showing of “compelling reasons” is needed to

26 support the secrecy of documents attached to dispositive motions. A showing of “good cause” does not,

27 without more, satisfy the “compelling reasons” test required to maintain the secrecy of documents

28 attached to dispositive motions. Id. The court found that:

3

Case 2:08-cv-00822-JCM-PAL Document 66 Filed 08/18/08 Page 4 of 8

1 2 3 4 5 6 Id.

Different interests are at stake with the right of access than with Rule 26(c); with the former, the private interests of the litigants are not the only weights on the scale. Unlike private materials unearthed during discovery, judicial records are public documents almost by definition, and the public is entitled to access by default. (Citation omitted). This fact sharply tips the balance in favor of production when a document formally sealed for good cause under Rule 26(c) becomes part of the judicial record. Thus, a “good cause” showing alone will not suffice to fulfill the “compelling reasons” standard that a party must meet to rebut the presumption of access to dispositive pleadings and attachments.

7

Kamakana recognized that “compelling reasons” sufficient to outweigh the public’s interests in

8 disclosure and justify sealing records exist when court records may be used to gratify private spite,

9 permit public scandal, circulate libelous statements, or release trade secrets. Id. at 1179 (internal

10 quotations omitted). However, “[t]he mere fact that the production of records may lead to a litigant’s

11 embarrassment, incrimination, or exposure to further litigation will not, without more, compel the court

12 to seal its records.” Id. (citing Foltz, 331 F.3d at 1136). To justify sealing documents attached to

13 dispositive motions, a party is required to present articulable facts identifying the interests favoring

14 continuing secrecy, and show that these specific interests overcome the presumption of public access by

15 outweighing the public’s interests in understanding the judicial process. Id. at 1181 (internal citations

16 omitted).

17

B. Proceeding Under Pseudonym.

18

As a general matter, “the identity of the parties in any action, civil or criminal, should not be

19 concealed except in an unusual case, where there is a need for the cloak of anonymity.” United States

20 v. Doe, 488 F.3d 1154, 1156 at n.1 (9th Cir. 2007); United States v. Stoterau, 524 F.3d 988, 1012 (9th

21 Cir. 2008). Moreover, Federal Rule 10(a) requires that the title of every complaint “include the name of

22 all the parties.” Fed.R.Civ.P. 10(a). In Stoterau, the Ninth Circuit underscored the “fundamental

23 importance of issuing public decisions after public arguments based on public records.” Id. at 1012

24 (citing Doe v. United States, 253 F.3d 256, 262 (6th Cir. 2001) (internal citation omitted)). The Ninth

25 Circuit found that plaintiff–a convicted sex offender–was not entitled to proceed under pseudonym

26 although he claimed that dissemination of information regarding the nature of his offense could

27 endanger his personal safety in prison. Id. The Ninth Circuit concluded that even the potential threat of

28 bodily harm in prison was not an exceptional circumstance justifying departure from the general rule

4

Case 2:08-cv-00822-JCM-PAL Document 66 Filed 08/18/08 Page 5 of 8

1 that court proceedings are a matter of public record. Id. (citing United States v. Mentzos, 462 F.3d 830,

2 843 at n. 4 (8th Cir. 2006)).

3

Notwithstanding the general preference for disclosure, however, in an unusal case, the Ninth

4 Circuit permits a party to proceed by pseudonym where it “is necessary...to protect a person from

5 harrasment, injury, ridicule, or personal embarrassment.” United States v. Doe, 655 F.2d 920, 922 at n.1

6 (9th Cir. 1981). In determining whether to allow pseudonymity, the court must balance the need for

7 anonymity against the general presumption that parties’ identities are a matter of public record. See

8 Does I thru XXIII v. Advanced Textile Corp., 214 F.3d 1058, 1068 (9th Cir. 2000) (applying balancing

9 test to employment retaliation claim).

10

The Ninth Circuit recognizes three classes of cases where anonymity is justified despite the

11 general rule in favor of disclosure. Id. (citing Doe, 655 F.2d at 922). First, where identification creates

12 a risk of retaliatory physical or mental harm, proceeding under pseudonym may be appropriate. Does I

13 thru XXIII, 214 F.3d at 1068. Second, anonymity is appropriate to preserve privacy in a matter of a

14 highly personal or sensitive nature. Id. Third, proceeding under pseudonym is justified in cases where,

15 absent anonymity, the party would be compelled to admit his or her intention to engage in criminal

16 conduct and risk prosecution. Id.

17

In balancing the interests in the first class of cases, a court should consider the following factors:

18 (1) the severity of the threatened harm; (2) the reasonableness of the anonymous party’s fears; and (3)

19 the anonymous party’s vulnerability to such retaliation. Id. Lastly, a court must also consider whether

20 the public’s interest in the case justifies anonymity. Id. at 1068-69.

21

II. Analysis of Parties’ Positions.

22

The Doe Plaintiffs assert that proceeding under pseudonym is required because this case falls

23 within each of the above-referenced classes of cases where anonymity is justified. The Doe Plaintiffs

24 argue that if their identities are disclosed, they risk retaliation by the community. Moreover, the Doe

25 Plaintiffs believe anonymity is justified because a crime of sexual misconduct is “a very private and

26 embarrassing topic.” The Doe Plaintiffs further allege that if they were required to disclose their

27 identities, they would be at risk for criminal prosecution for failing to comply with the provisions of the

28 New Sexual Offender Laws. Lastly, the Doe Plaintiffs argue that disclosure of their identities will

5

Case 2:08-cv-00822-JCM-PAL Document 66 Filed 08/18/08 Page 6 of 8

1 effectively moot the claims asserted in the underlying Amended Complaint.

2

The Defendants argue, however, that the Doe Plaintiffs have neither demonstrated any protected

3 privacy interest in remaining anonymous, nor have they enunciated any concrete prejudice that would

4 result from disclosure. Defendants assert that any harm resulting from disclosure of the Doe Plaintiffs’

5 identities is speculative at best. Moreover, Defendants believe that without identification of the Doe

6 Plaintiffs, the Defendants are unable to examine the veracity of the Doe Plaintiffs’ allegations in the

7 Amended Complaint regarding the effect of the New Sex Offender Laws.

8

During oral argument, counsel for the Doe Plaintiffs clarified that the Doe Plaintiffs do not seek

9 to prevent Defendants from learning the identities of the Doe Plaintiffs. They are willing to disclose the

10 names and identifying information of the Doe Plaintiffs to enable Defendants to investigate the validity

11 of the Doe Plaitiffs’ claims and standing to seek injunctive relief. However, the Doe Plaintiffs seek a

12 protective order precluding public disclosure of their identities, fearing retaliation by the public and/or

13 the Department of Parole and Probation for challenging the New Sex Offender Laws. Given this

14 clarification, counsel for the Defendants did not oppose the Doe Plaintiffs’ request to proceed under

15 pseudonym while the District Judge adjudicates the merits of the Motion for Permanent Injunction.

16

The Court is not persuaded that the Doe Plaintiffs have established that anonymity is required.

17 However, the District Judge has granted a preliminary injunction enjoining enforcement of the New Sex

18 Offender Laws. Written findings of fact and conclusions of law were not entered, and it is unclear

19 which specific statutory enforcement provisions have been enjoined. A briefing schedule has been

20 established, and a hearing is currently set for September 15, 2008. Under these circumstances, the

21 Court will grant the Doe Plaintiffs’ request to proceed under pseudonym until further order.

22

However, fundamental fairness dictates that the Defendants have the opportunity to investigate

23 and assess whether the anonymous Doe Plaintiffs are all offenders who face immediate and irreparable

24 harm and meet the standing requirements for injunctive relief as Plaintiffs allege in their papers. See,

25 e.g., Plaintiff’s Motion for and Memorandum of Points and Authorities in Support of Temporary

26 Restraining Order and Preliminary Injunction (Docket No. 7) at 23, 27-28. Moreover, the Court

27 questions whether the Doe Plaintiffs fall within the class of cases where the Ninth Circuit has allowed

28 parties to proceed under pseudonym, because their convictions for various sexual offenses are a matter

6

Case 2:08-cv-00822-JCM-PAL Document 66 Filed 08/18/08 Page 7 of 8

1 of public record. While not binding on this Court, the holding of the court in Rowe v. Burton, 884

2 F.Supp 1372, 1385-88 (D. Alaska 1994), is persuasive. There, the district court granted a preliminary

3 injunction in part, preventing public dissemination of certain information required by Alaska’s sexual

4 offender registration law pending a decision on the merits of the plaintiffs’ constitutional challenge of

5 the law on ex post facto and other grounds. However, the court denied plaintiffs’ request to proceed

6 under pseudonym, finding the information they sought to keep private–i.e., their names and pleas to

7 various sex offenses–was already public. The court found that the public nature of their actions was

8 “fatal to their claims that anonymity is required to shield them from stigma” arising from their attacks

9 on Alaska’s sex offender registration law and that “any stigma that may attach comes not from the

10 challenge to the Registration Act, but from the underlying sex offense.” Id. at 1387.

11

In summary, the Court will require counsel for the Doe Plaintiffs to disclose the names and

12 personal identifiers of the Doe Plaintiffs to defense counsel but will enter a temporary protective order

13 precluding the Defendants from publicly disseminating the identities of the Doe Plaintiffs or using the

14 information provided by the Doe Plaintiffs for any purpose unrelated to this litigation. The Court will

15 also permit the Doe Plaintiffs to proceed under pseudonym while the District Judge rules on the merits

16 of Plaintiffs’ request for injunctive relief.

17

Based upon the foregoing,

18

IT IS ORDERED that the Motion is granted in part and denied in part as follows:

19

1. The Doe Plaintiffs are permitted to proceed under pseudonym for purposes of the public

20

record while the District Judge adjudicates the merits of the Permanent Injunction and

21

unless otherwise ordered by this Court.

22

2. Counsel for the Doe Plaintiffs shall disclose the names and personal identifiers of the

23

Doe Plaintiffs to counsel for the Defendants.

24

3. A temporary protective order is entered precluding the Defendants from disclosing the

25

names and personal identifiers of the Doe Plaintiffs and from using this information for

26

any purpose not related to this litigation.

27

4. Counsel for the Defendants may request criminal records and related information

28

necessary to investigate the Doe Plaintiffs’ standing to bring this action from the

7

Case 2:08-cv-00822-JCM-PAL Document 66 Filed 08/18/08 Page 8 of 8

1

Department of Parole and Probation and/or any other governmental source but shall not

2

disclose the purpose for which the information is sought.

3

Dated this 18th day of August, 2008.

4

5

___________________________________

6

PEGGY A. LEEN

UNITED STATES MAGISTRATE JUDGE

7

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 Case 2:08-cv-00822-JCM-PAL Document 69 Filed 09/05/08 Page 1 of 3

1

2

3

4

5

UNITED STATES DISTRICT COURT

6

DISTRICT OF NEVADA

7

8 THE AMERICAN CIVIL LIBERTIES UNION OF NEVADA, et al.,

2:08-CV-822 JCM (PAL)

9

Date:

N/A

Plaintiffs,

10

Time:

N/A

11 v.

12 CATHERINE CORTEZ MASTO, et al.,

13

Defendants.

14

15

ORDER

16

Presently before this court is a motion to intervene and/or leave to file an amicus curiae brief

17 (Doc. #67), which was filed on August 20, 2008. This case originated with plaintiffs’ motion for

18 a temporary restraining order and preliminary injunction to enjoin the enforcement of A.B. 579 and

19 S.B. 471, two laws that were set to go into effect on July 1, 2008. (Doc. #7). This court denied the

20 motion for a temporary restraining order but granted the motion for a preliminary injunction on June

21 30, 2008. (Doc. #27). A hearing on the motion for a permanent injunction is set for September 10,

22 2008.

23

Movants filed the current motion seeking to intervene under Fed. R. Civ. P. 24, claiming that

24 their interests are not adequately represented by counsel for the current plaintiffs. They admit,

25 however, that they are “arguing the same issue that is being addressed and briefed by the Plaintiffs

26 [sic] in this case . . . .” All of the potential interveners have previously been classified as sex

27 offenders under Nevada law. After the implementation of A.B. 579 and S.B. 471, they will all be

28
James C. Mahan U.S. District Judge

Case 2:08-cv-00822-JCM-PAL Document 69 Filed 09/05/08 Page 2 of 3

1 subject to re-classification.

2

Fed. R. Civ. P. 24 allows parties to intervene as a matter of right or as permitted by the court.

3 Unless a statute grants a movant an unconditional right to intervene, intervention is a matter of right

4 only when the movant “claims an interest relating to the property or transaction that is the subject

5 of the action, and is so situated that disposing of the action may as a practical matter impair or

6 impede the movant’s ability to protect its interest, unless existing parties adequately represent that

7 interest.” Fed. R. Civ. P. 24(a)(2) (emphasis added).

8

A review of the pleadings in this case reveals that the interveners’ interests are adequately

9 represented. Movants’ motion and attached brief serve only to support the claims made by the

10 plaintiffs in this case. They raise no new legal issues, nor do they present any evidence to support

11 a finding that the current attorneys for the plaintiffs are not adequately representing the interest of

12 previously convicted sex offenders who might be affected by the implementation of A.B. 579 and

13 S.B. 471. Therefore, movants’ request to intervene as a matter of right is denied.

14

Movants’ claim for permissive intervention is likewise denied. A court may permit a movant

15 to intervene when a statute grants a conditional right to intervene or when the movant “has a claim

16 or defense that shares with the main action a common question of law or fact.” Fed. R. Civ. P.

17 24(b)(2). Movants have cited no statute which would grant them the conditional right to intervene

18 in this case. Rather, they hope to intervene because their claims share a common question of fact

19 or law with the main action.

20

Trial courts have broad discretion to deny permissive intervention under Fed. R. Civ. P.

21 24(b). When entertaining a request to intervene, courts consider whether intervention will unduly

22 delay or prejudice the adjudication of the rights of the original parties. Venegas v. Skaggs, 867 F.2d

23 527, 529-30 (9th Cir. 1989). Here, intervention of 16 new plaintiffs has the potential to substantially

24 delay the current proceedings and to prejudice the adjudication of the rights of the current parties.

25 This court has already dismissed several participants from this lawsuit in an effort to distill the case

26 to its most essential claims. The current plaintiffs seek injunctive relief because they believe their

27 claims require swift action from the court in order to avoid irreversible harm. Allowing movants to

28
James C. Mahan U.S. District Judge

- 2 -

Case 2:08-cv-00822-JCM-PAL Document 69 Filed 09/05/08 Page 3 of 3

1 intervene at this time has the potential to delay this court’s decision; therefore, this request must be

2 denied.

3

Movants have also requested leave to file an amicus curiae brief in this case. This request

4 is denied. Not only does the brief submitted extend well beyond the page limit allowed for such a

5 document, it serves only to bolster the argument of the current plaintiffs. Movants admit that they

6 have “tried only to supplement or add new arguments or insights to Plaintiffs’ argument in the

7 existing case . . . .” (Doc. #67 at 8). “The term ‘amicus curiae’ means friend of the court, not friend

8 of a party.” Ryan v. Commodity Futures Trading Com’n, 125 F.3d 1062, 1063 (7th Cir. 1997).

9 Amicus briefs that “duplicate the arguments made in the litigants’ briefs, in effect merely extending

10 the length of the litigant’s brief, . . . . should not be allowed. They are an abuse.” Ryan, 125 F.3d

11 at 1063.

12

Accordingly,

13

IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that movants’ motion to

14 intervene (Doc. #67) be, and the same hereby is, DENIED.

15

IT IS FURTHER ORDERED that movants’ request to file an amicus curiae brief be, and the

16 same hereby is, DENIED.

17

DATED this 5th day of September, 2008.

18

19 UNITED STATES DISTRICT JUDGE
20

21

22

23

24

25

26

27

28
James C. Mahan U.S. District Judge

- 3 -

 
 Case 2:08-cv-00822-JCM-PAL Document 77 Filed 10/07/08 Page 1 of 5

1 Margaret A. McLetchie, Bar No. 10931 Allen Lichtenstein, Bar No. 3992
2 Lee Rowland, Bar No. 10209 ACLU OF NEVADA
3 732 S. Sixth Street, Suite 200A Las Vegas, NV 89101
4 (702) 366-1902 mcletchie@aclunv.org
5 Attorneys for Plaintiffs Does 1-8
6 Robert L. Langford, Bar No. 3988 7 ROBERT L. LANGFORD & ASSOCIATES
616 S. Eighth Street 8 Las Vegas, Nevada 89101
(702) 471-6535 9 robert@robertlangford.com 10 Attorneys for Plaintiffs Does A-S

11
UNITED STATES DISTRICT COURT
12
DISTRICT OF NEVADA
13

14 The American Civil Liberties Union of Nevada, Does 1- 2:08-cv-00822-JCM-PAL

8 and Does A-S, individuals,
15

PLAINTIFFS’ REVISED

16
v.

Plaintiffs,

[PROPOSED] ORDER GRANTING PERMANENT INJUNCTION

17

Catherine Cortez Masto, Attorney General of the State 18 of Nevada; Jerald Hafen, Director of the Nevada

19 Department of Public Safety; Bernard W. Curtis, Chief, Parole and Probation Division of the Nevada

20 Department of Public Safety; Captain P.K. O’Neill,

Chief, Records and Technology Division of the Nevada 21 Department of Public Safety; Michael Haley, Sheriff of

22 the Washoe County Sheriff’s Office; Michael Poehlman, Chief of the Reno Police Department;

23 Richard A. Gammick, District Attorney of Washoe

County; Douglas Gillespie, Sheriff of the Las Vegas 24 Metropolitan Police Department; Joseph Forti, Chief of

25 the North Las Vegas Police Department; David Roger, District Attorney of Clark County; Chief Richard

26 Perkins, Henderson Police Department,

27

Defendants.

28

- 1-

PLAINTIFFS’ REVISED [PROPOSED] ORDER GRANTING PERMANENT INJUNCTION

CasCea2s:e082-:0cv8-0c0v-802028-2JC2-MJC-PMA-LPALDoDcoucmuemnetn7t677 FFilieledd1100/0/077/2/00808PagPeag2eo2f 5of 5

1

On September 10, 2008, a hearing was held before Hon. Judge Jam es C. Mahan on

2
Plaintiffs’ Motion for Summary Judgment. Appearing for plaintiffs the American Civil Liberties
3
Union and Does 1 through 8 were Margaret McLetchie and Allen Lichtenstein. Robert Langford
4
5 appeared for Plaintiffs Does A through S. Bi nu Palal and Kim berly Buchanan appeared for

6 defendants.

7

Plaintiffs filed their com plaint on June 24, 2008, requesting that this court declare A.B.

8
579 and S.B. 471 unc onstitutional and to issue an injunction prohibiting the enforcem ent of
9
changes to various N.R.S. provisions to be modified by the im plementation of A.B. 579 and
10

11 S.B. 471. Plaintiffs stated several causes of action, including that the laws violated:

12 (1) Procedural Due Process under the U.S. Constitution; (2) the Ex Post Facto Clause under the
13 U.S. Constitution; (3) the Double Jeopardy Cl ause under the U.S. Constitu tion; (4) the
14
Contracts Clause under the U.S. and Nevada C onstitutions; (5) the Separation of Powers under
15
the Nevada Constitution; and (6) the prohibition against Vague and Ambiguous laws under the
16
17 U.S. Constitution.

18

Plaintiffs originally named two sets of defendants:

19

(1) the “State Defendants:” De fendant Cortez Masto, Attorn ey General of the State

20
of Nevada; Defendant Jerald Hafen, Direct or of the Neva da Department of Public
21

22

Safety; Defendant Bernard W. Curtis, Chief of the Parole and Probation Division of

23

the Nevada Department of Public Safety; and Defendant Captain P.K. O’Neill, Chief

24

of the Records and Technology Division of the Nevada Department of Public Safety;

25
and
26
(2) Defendant Michael Haley, Sheriff of the Washoe County Sheriff’s Office;
27

28

Defendant Michael Poehlm an, Chief of the Reno Police Departm ent; Defendant

- 2-

PLAINTIFFS’ REVISED [PROPOSED] ORDER GRANTING PERMANENT INJUNCTION

CasCea2s:e082-:0cv8-0c0v-802028-2JC2-MJC-PMA-LPALDoDcoucmuemnetn7t677 FFilieledd1100/0/077/2/00808PagPeag3eo3f 5of 5

1

Richard A. Ga mmick, District Attorney of Washoe County; Defendant Douglas

2
Gillespie is Sheriff of the Las Vegas Me tropolitan Police Department; Joseph Forti,

3
Chief of the North Las Vegas Police Depa rtment; including but no t limited to th e
4

5

community notification provisions therei n; Defendant David Roger, District

6

Attorney for Clark County, Nevada; and Defendant Chief Richard Perkins of the

7

Henderson Police Department.

8
Plaintiffs subsequently entere d stipulations, approved by th is court, with all the Law
9
Enforcement Defendants, dismissing them from this action on the condition that they abide by
10

11 the terms of any relief.

12

On June 30, 2008, the court denied plaintiffs’ request for a Temporary Restraining Order

13 but granted Plaintiffs’ Preliminary Injunction Motion.
14
In July of 2007, the Nevada Legislature passed A.B. 579 which m andated that its
15
restrictions, notification provision s, and potential crim inal penalties apply re troactively, not
16

17 just to pedophiles, but to anyone who has comm itted any offense that involves “an y sexual act

18 or sexual conduct with another” – no m atter how minor the sexual offense was – and t o
19 offenses committed as long ago as J uly 1, 1956. In Ju ly of 2007, the N evada Legislature also
20
passed S.B. 471, which imposed G.P.S. monitoring and movement and residency restrictions on
21
22 certain sex of fenders. Plaintif fs submitted declarations, uncontroverted by the d efendants,
23 making clear that the P arole and Probation De partment was applying S.B. 471’s provisions

24 retroactively.
25
Together, A.B. 579 and S.B. 471 redefine w ho is considered a “sex offender,” the wa y
26
in which sex offenders are classified and m onitored, and what restrictions apply to which sex
27
28 offenders. Prior to the enactm ent of these la ws, sex offenders had been individually assessed
- 3-

PLAINTIFFS’ REVISED [PROPOSED] ORDER GRANTING PERMANENT INJUNCTION

CasCea2s:e082-:0cv8-0c0v-802028-2JC2-MJC-PMA-LPALDoDcoucmuemnetn7t677 FFilieledd1100/0/077/2/00808PagPeag4eo4f 5of 5

1 and classified based on psychological assessments focusing on whether the offenders pose a risk

2
to society and are likely to re-offend. The

statutes mandated that sex offenders would

3
henceforth be automatically classified based on one factor, the crim e committed. Because of
4

5 the changed standards, numerous people: (1) whos e crimes were committed in the d istant past;

6 (2) who have been determ ined by the state of N evada to be unlikely to re-offend; and (3) who

7 have complied with the law, atten ded counseling, and w ho have no t committed additional

8
crimes would be thrown back into the system or be subject to m ore onerous m onitoring and
9
residency requirements.
10

11

A.B. 579 and S.B. 471 do not provide any pr ocedural due process protections, leaving

12 even people who believe that they have been m iscategorized as sex offenders with n o means to
13 challenge the application of A.B. 579 and S.B. 471.
14
The application of these laws retroactively is the equivalent a new punishment tacked on
15
to the original sentence – sometimes years after the fact – in violation of the Ex Post Facto and
16
17 Double Jeopardy Clauses of the U.S . Constitution, as well as the Contracts clauses of the U.S.

18 and Nevada Constitutions. Moreover, because they do not provide any procedural protections
19 from their retroactive application, A.B. 579 and S.B. 471 violate the Due Process Clause of the
20
U.S. Constitution.
21
22 //
23 //

24 //
25
//
26
//
27
28 //
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PLAINTIFFS’ REVISED [PROPOSED] ORDER GRANTING PERMANENT INJUNCTION

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1

For these reasons, the C ourt hereby grants Plaintiffs’ Motion for Summary Judgm ent,

2
making the June 30, 2008 Prelim inary Injunction enjoining the enforcem ent of A.B. 579 and
3
S.B. 471 a Permanent Injunction.
4
5 Respectfully submitted,

6

7 DATED:___October 7, 2008
8
9

ACLU of NEVADA, Attorneys f or the ACLU of Nevada and Does 1-8

10

By:

11

12

_____/s/_________________________ Margaret A. McLetchie

13 DATED:___October 7, 2008
14
15

ROBERT L. LANGFORD & ASSOCIATES, Attorneys for the ACLU of Nevada and Does 1-8

16

By:

17

18

_____/s/_________________________ Robert L. Langford

19

20
IT IS SO ORDERED.
21

22
_________________________

23
HONORABLE JUDGE JAMES C. MAHAN

24

October 7

Dated:

, 2008

25

26

27

28 - 5-

PLAINTIFFS’ REVISED [PROPOSED] ORDER GRANTING PERMANENT INJUNCTION

CasCea2s:e082-:0cv8-0c0v-802028-2JC2-MJC-PMA-LPALDoDcoucmuemnetn7t677 FFilieledd1100/0/077/2/00808PagPeag5eo5f 5of 5

1

For these reasons, the C ourt hereby grants Plaintiffs’ Motion for Summary Judgm ent,

2
making the June 30, 2008 Prelim inary Injunction enjoining the enforcem ent of A.B. 579 and
3
S.B. 471 a Permanent Injunction.
4
5 Respectfully submitted,

6

7 DATED:___October 7, 2008
8
9

ACLU of NEVADA, Attorneys f or the ACLU of Nevada and Does 1-8

10

By:

11

12

_____/s/_________________________ Margaret A. McLetchie

13 DATED:___October 7, 2008
14
15

ROBERT L. LANGFORD & ASSOCIATES, Attorneys for the ACLU of Nevada and Does 1-8

16

By:

17

18

_____/s/_________________________ Robert L. Langford

19

20
IT IS SO ORDERED.
21

22
_________________________

23
HONORABLE JUDGE JAMES C. MAHAN

24

October 7

Dated:

, 2008

25

26

27

28 - 5-

PLAINTIFFS’ REVISED [PROPOSED] ORDER GRANTING PERMANENT INJUNCTION

 
 Case 2:08-cv-00822-JCM-PAL Document 92 Filed 01/12/09 Page 1 of 2

1

2

3

4

5

UNITED STATES DISTRICT COURT

6

DISTRICT OF NEVADA

7

8 THE AMERICAN CIVIL LIBERTIES UNION OF NEVADA, et al.,

2:08-CV-822 JCM (PAL)

9

Date:

N/A

Plaintiffs,

10

Time:

N/A

11 v.

12 CATHERINE CORTEZ MASTO, et al.,

13

Defendants.

14

15

ORDER

16

Presently before the court is plaintiffs’ motion for attorney’s fees. (Doc. #82.) Plaintiffs are

17 seeking fees and costs totaling $145,823.50, as outlined in their billing and costs report. Under 42

18 U.S.C. § 1988(b), a court has discretion to award attorney’s fees to the prevailing party in any action

19 or proceeding brought under section 1983.

20

The court finds that plaintiffs have complied with the requirements of LR 54-16. Further,

21 the court notes that it is appropriate to tax the state defendants (Catherine Masto, Jerald Hafen,

22 Bernard Curtis, and Captain P.K. O’Neill) with the full amount of fees incurred as they were named

23 defendants throughout the suit, and all issues that came before the court directly involved these

24 defendants. The fact that other defendants were dismissed from the case does not detract from the

25 time and expense of litigating the case against the state defendants.

26 . . .

27 . . .

28
James C. Mahan U.S. District Judge

Case 2:08-cv-00822-JCM-PAL Document 92 Filed 01/12/09 Page 2 of 2

1

Accordingly,

2

IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that plaintiffs’ motion for

3 attorney’s fees (Doc. # 82) be, and the same hereby is, GRANTED.

4

DATED this 12th day of January, 2009.

5

6 UNITED STATES DISTRICT JUDGE
7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28
James C. Mahan U.S. District Judge

- 2 -

 
 Case 2:08-cv-00822-JCM-PAL Document 102 Filed 04/08/09 Page 1 of 2

1

2

3

4

5

UNITED STATES DISTRICT COURT

6

DISTRICT OF NEVADA

7

8 THE AMERICAN CIVIL LIBERTIES UNION OF NEVADA, et al.,

2:08-CV-822 JCM (PAL)

9

Date:

N/A

Plaintiffs,

10

Time:

N/A

11 v.

12 CATHERINE CORTEZ MASTO, et al.,

13

Defendants.

14

15

ORDER

16

On January 13, 2009, this court granted plaintiffs’ motion for $145,823.50 in costs and fees

17 as a result of plaintiffs’ successful litigation of issues surrounding the application of Nevada’s sex

18 offender laws. Defendants now ask this court to stay the order for attorneys’ fees pending the appeal

19 of this court’s order granting a permanent injunction in this case. (Doc. #94.) Plaintiffs oppose this

20 motion. (Doc. 97.)

21

Under Fed. R. Civ. P. 62(d), an appellant may obtain a stay by supersedeas bond if an appeal

22 is taken. However, the stay applies only to the judgment being appealed. See In re Zapata Gulf

23 Marine Corp., 941 F.2d 293, 295 (5th Cir. 1991). Defendants have not appealed this court’s order

24 awarding attorneys’ fees, and the time to appeal that order has expired. See Fed. R. App. P. 4(a).

25

Further, the award of fees and costs is collateral to the issue being appealed. See Leslie v.

26 Grupo ICA, 198 F.3d 1152, 1160 (9th Cir. 1999) (finding no jurisdiction to review fee award without

27 proper notice of appeal, and rejecting appellant’s argument that if lower court were reversed on

28
James C. Mahan U.S. District Judge

Case 2:08-cv-00822-JCM-PAL Document 102 Filed 04/08/09 Page 2 of 2

1 summary judgment, it should also be reversed on issue of attorneys’ fees.) Therefore, this court has

2 no authority to grant defendants’ motion to stay.

3

Further, the court is not persuaded by defendants’ argument that the award of fees is

4 somehow dependent on the outcome of the appeal. Defendants’ argue that plaintiffs will no longer

5 be the “prevailing party” if the Ninth Circuit Court of Appeals reverses this court’s ruling. However,

6 to be considered a “prevailing party” for purposes of attorneys’ fees in a civil rights case, a plaintiff

7 need not obtain a favorable final judgment. Harris v. McCarthy, 790 F.2d 753, (9th Cir. 1986). As

8 long as the plaintiff has succeeded on any significant issue in the litigation which achieved some of

9 the benefit plaintiff sought, he will be considered a “prevailing party.” See Harris, 790 F.2d at 757.

10 Plaintiffs prevailed on their claims in this case and they succeeded in securing a permanent

11 injunction against the retroactive application of A.B. 579 and S.B. 471.

12

Accordingly,

13

IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that defendants’ motion to stay

14 the order of attorneys’ fees pending appeal (doc. #94) be, and the same hereby is, DENIED.

15

DATED this 8th day of April, 2009.

16

17 UNITED STATES DISTRICT JUDGE
18

19

20

21

22

23

24

25

26

27

28
James C. Mahan U.S. District Judge

- 2 -

 
 Case 2:08-cv-00822-JCM-PAL Document 112 Filed 07/23/09 Page 1 of 1

1

2

3

4

5

UNITED STATES DISTRICT COURT

6

DISTRICT OF NEVADA

7

8 THE AMERICAN CIVIL LIBERTIES UNION OF NEVADA, et al.,

2:08-CV-822 JCM (PAL)

9

Date:

N/A

Plaintiffs,

10

Time:

N/A

11 v.

12 CATHERINE CORTEZ MASTO, et al.,

13

Defendants.

14

15

ORDER

16

Presently before the court is plaintiffs’ motion to withdraw their motion to compel

17 compliance with an order of this court. (Doc. #110.) On April 8, 2009, this court denied defendants’

18 motion to stay an order of attorney’s fees pending appeal. (Doc. #102.) On June 19, 2009, plaintiffs

19 filed a motion to compel defendants’ compliance with that order. (Doc. #107.)

20

Plaintiffs now ask to withdraw their motion to compel.

21

Good cause appearing,

22

IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that plaintiffs’ motion to

23 withdraw their motion to compel (Doc. #110) be, and the same hereby is, GRANTED. Plaintiffs’

24 motion to compel (doc. #107) shall be withdrawn from the docket.

25

DATED this 23rd day of July, 2009.

26

27
28
James C. Mahan U.S. District Judge

UNITED STATES DISTRICT JUDGE

 
 1

2

3

4

5 UNITED STATES DISTRICT COURT
6 DISTRICT OF NEVADA
7

8 THE AMERICAN CIVIL LIBERTIES UNION OF NEVADA, et al.,

2:08-CV-822 JCM (PAL)

9

Plaintiffs, 10

11 v.

12 CATHERINE CORTEZ MASTO, et al.,

13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
James C. Mahan U.S. District Judge

Defendants.
ORDER Presently before the court is the matter of ACLU of Nevada v. Masto, et al., case number 2:08-cv-00822-JCM-PAL. On April 11, 2012, this court issued its order on mandate as to the Ninth Circuit’s opinion reversing in part and remanding this court’s order granting plaintiff’s motion for summary judgment. The Ninth Circuit dismissed as moot the state’s appeal as to Senate Bill 471, in light of the state’s concession that it would not enforce the contested provisions of the bill. ACLU v. Masto, 670 F.3d 1046, 1063-64 (9th Cir. 2012). The Ninth Circuit then remanded the case to this court “to consider vacating its Order as to Senate Bill 471 in favor of a binding consent decree.” Id. at 1050. The panel cautioned, however, that “if no consent decree can be negotiated, [the Ninth Circuit’s] dismissal of the State’s appeal will leave the district court’s injunction in vigor.” This court ordered supplemental briefing, to determine if the parties had negotiated a consent decree, and if they had not, what the prospects for doing so were. Doc. #119. Attached as an exhibit to its supplemental brief, the state filed a proposed consent decree. See Doc. #120, Ex. B. The

1 ACLU, however, argues that it was never consulted with regards to the substance of the decree, nor

2 given an opportunity to view it prior to its being filed with the court. Doc. #121, 2:9-10. In light of

3 the state’s unilateral submission of the proposed decree, this court must find that “no consent decree

4 [was] negotiated” and thus, the previous injunction “remains in vigor.”

5

Should the parties be able to negotiate a comprehensive consent decree that covers all

6 agencies responsible for enforcing Senate Bill 471 and all relevant provisions of the law, they may

7 individually, or together jointly, submit it for the court’s consideration. Until and unless such decree

8 is provided to, and approved by, the court, the permanent injunction remains in full effect.

9

IT IS SO ORDERED.

10

DATED June 26, 2012.

11

12 UNITED STATES DISTRICT JUDGE
13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28
James C. Mahan U.S. District Judge

- 2 -

 
 CCaassee:20:088-1-c7v4-70108220-6J/C1M8/-2P0A1L2 DIoDc:u8m2e1n7t317262 DFkiletEdn0tr6y/:1489/12 PPaaggee: 11ooff33
FILED

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

JUN 18 2012
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

THE AMERICAN CIVIL LIBERTIES UNION OF NEVADA; DOES 1-8, and Does A-S,
Plaintiffs - Appellees,

No. 08-17471
D.C. No. 2:08-cv-00822-JCM-PAL District of Nevada, Las Vegas

v.
CATHERINE CORTEZ MASTO, Esquire, Attorney General of the State of Nevada; GERALD HAFEN, Director of the Nevada Department of Public Safety; BERNARD W. CURTIS, Chief, Parole and Probation Division of the Nevada Department of Public Safety; CAPTAIN P.K. O’NEILL, Chief, Records and Technology Division of the Nevada Department of Public Safety,

ORDER

Defendants - Appellants,

and

MICHAEL HALEY, Sheriff of the Washoe County Sheriff’s Office; MICHAEL POEHLMAN, Chief of the Reno Police Department; RICHARD GAMMICK, District Attorney of Washoe County; DOUGLAS GILLESPIE, Sheriff of the Las Vegas Metropolitan Police Department; JOSEPH FORTI, Chief of the North Las Vegas Police Department; DAVID ROGER, District Attorney of Clark County; RICHARD PERKINS,

CCaassee:20:088-1-c7v4-70108220-6J/C1M8/-2P0A1L2 DIoDc:u8m2e1n7t317262 DFkiletEdn0tr6y/:1489/12 PPaaggee: 22ooff33
Chief, Henderson Police Department, Defendants.
Before: TROTT and BEA, Circuit Judges, and STAFFORD, Senior District Judge.*
On behalf of two groups of plaintiffs, Does 1-8 and Does A-S, the ACLU sued the State of Nevada and various government officials challenging the constitutionality of two State laws, Assembly Bill 579 and Senate Bill 471. Pursuant to 42 U.S.C. § 1988, the ACLU now requests attorneys’ fees and costs.
Even though the State prevailed with respect to the ACLU’s challenge of A.B. 579, we conclude nevertheless that the ACLU qualifies under the fee statute as a “prevailing party” with respect to a significant issue in this lawsuit, i.e., the disposition of its challenge to S.B. 471. The outcome of this litigation has resulted in a “material alteration of the legal relationship of the parties in a manner which Congress sought to promote in the fee statute.” Texas State Teachers Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782, 792-93 (1989). “Where such a change has occurred, the degree of the plaintiff’s overall success goes to the
* The Honorable William H. Stafford, Jr., Senior District Judge for the U.S. District Court for Northern Florida, sitting by designation.
2

CCaassee:20:088-1-c7v4-70108220-6J/C1M8/-2P0A1L2 DIoDc:u8m2e1n7t317262 DFkiletEdn0tr6y/:1489/12 PPaaggee: 33ooff33 reasonableness of the award . . . , not to the availability of a fee award vel non.” Id. at 793.
Accordingly, the ACLU’s motion for costs and fees is granted. We refer the determination of the appropriate amount of a reasonable fee to Ninth Circuit Appellate Commissioner Peter Shaw. The Commissioner shall take into consideration the ACLU’s receipt in district court of attorneys’ fees on issues with respect to which it has not prevailed. The Commissioner’s determination of a reasonable fee shall be subject to reconsideration by the panel.
So ORDERED.
3

 
 Case 2:08-cv-00822-JCM-PAL Document 142-1 Filed 02/07/13 Page 2 of 34

1 2 3 4 5 6 7 8 9 10 11 12
0
e~ uM"0..'..., 13
o ·/aJ;O;:
"~"" {/) 00
·~ 14 t § ~=:"U. 15
F3 >. ~~
;::"' 16
<:il
"' 17 18 19 20 21 22 23 24 25 26 27 28

CATHERINE CORTEZ MASTO Attorney General
KIMBERLY A. BUCHANAN
Senior Deputy Attorney General Nevada Bar No. 5891 Public Safety Division 555 East Washington Avenue, #3900 Las Vegas, Nevada 89101 (702) 486-3420 Attorneys for Defendants, CATHERINE CORTEZ MASTO; GERALD HAFEN; BERNARD W. CURTIS and CAPTAIN P.K. O'NEILL
UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

THE AMERICAN CIVIL LIBERTIES UNION OF NEVADA, DOES 1 -8 and DOES A-S,
individuals,

CASE NO. 2:08-cv-00822-JCM-PAL

Plaintiffs,

v.
CATHERINE CORTEZ MASTO, Attorney General of the State of Nevada; GERALD HAFEN, Director of the Nevada Department of Public Safety; BERNARD W. CURTIS, Chief, Parole and Probation Division of the Nevada Department of Public Safety; CAPTAIN P.K. O'NEILL, Chief, Records and Technology Division of the Nevada Department of Public Safety; MICHAEL HALEY, Sheriff of the Washoe County Sheriff's Office; MICHAEL POEHLMAN, Chief of the Reno Police Department; RICHARD
A. GAMMICK, District Attorney of Washoe
County; DOUGLAS GILLESPIE, Sheriff of the Las Vegas Metropolitan Police Department; JOSEPH FORTI, Chief of the North Las Vegas Police Department; DAVID ROGER, District Attorney of Clark County; CHIEF RICHARD PERKINS, Henderson Police Department,

ORDER CLARIFYING INJUNCTION AS TO SENATE BILL 471

Defendants.

1. This court has jurisdiction pursuant to 42 U.S.C. §1983, 28 U.S.C. § 1331 and 28 U.S.C. § 1343 and has personal jurisdiction over defendants.

-1-

Case 2:08-cv-00822-JCM-PAL Document 142-1 Filed 02/07/13 Page 3 of 34

1

2. On July 24, 2008, (Doc. 51), a stipulation was entered which dismissed

2 defendants Douglas Gillespie, sheriff of the Las Vegas Metropolitan Police Department,

3 Joseph Forti, chief of the North Las Vegas Police Department, David Roger, District Attorney

4 of Clark County and Richard Perkins, chief of the Henderson Police Department (collectively

5 "Clark County law enforcement defendants") on the agreement that they would be bound by

6 the decision in this case as litigated by plaintiffs and state defendants. Accordingly, Clark

7 County law enforcement defendants are bound by the terms of this order.

8

3. On October 7, 2008, (Doc. 77), this court entered a preliminary injunction

9 permanently enjoining the enforcement of Assembly Bill (A.B.) 579 and Senate Bill (S.B.)

10 471. 1

11

4. On February 10, 2012, the Ninth Circuit Court of Appeals issued its decision on

12 the appeal of the permanent injunction and reversed and remanded this matter.

0
13 ~0
JSu "c~' ......

0 .~:2

14 ~ v:~ ~ 00,

~ ~

0 0

o=:"U' . 15

§~~P"-~'l3~ 16

<~

"' 17

5. The Ninth Circuit decision reversed the district court's findings as to A.B. 579 and accordingly the injunction as to A.B. 579 is dissolved.
6. The Ninth Circuit made it clear that the only provisions of S.B. 471 properly at issue in this action are the specific sections amending movement and residency restrictions. 2 The Ninth Circuit also indicated the injunction was not reflective of the district court's findings.

18 Thus the scope of the October 7, 2008 injunction against S.B. 471 was overly broad as

19 drafted and this order hereby clarifies the proper scope of the injunction against S.B. 471 as it

20 was entered on October 7, 2008.

21

7. The State of Nevada agrees not to enforce the following movement and

22 residency statutes for convictions that occurred prior to the date that this order is entered:

23

a. S.B. 471 (2007), Sec. 2 amending NRS 176A.410(1)(m).

24

b. S.B. 471 (2007), Sec. 2 amending NRS 176A.410(2)(a).

25

c. S.B. 471 (2007), Sec. 8 amending NRS 213.1243(3).

26

d. S.B. 471 (2007), Sec. 8 amending NRS 213.1243(4)(a).

27

e. S.B. 471 (2007), Sec. 9 amending NRS 213.1245(1 )(1).

28

1 A copy of Senate Bill 471 is attached hereto as Exhibit A for ease of reference.

2 See ACLU v. Masto, 670 F.3d 1046, fn 3 (2012).

-2-

Case 2:08-cv-00822-JCM-PAL Document 142-1 Filed 02/07/13 Page 4 of 34

1

f.

S.B. 471 (2007), Sec. 10 amending NRS 213.1255(1)(a).

2

The above listed provisions, a-f, may be enforced as to convictions that occur on or

3 after the date that this order is entered.

4

8. All other sections or sub-sections contained in S.B. 471 (2007), other than those

5 specified in 6 a-f above, are subject to the enacting provisions set forth in S.B. 471 (2007),

6 Sec. 16 and Sec. 17, and were in full force and effect as of the effective date of the bill. These 7 include the following substantive provisions. 3

8

a. S.B. 471 (2007), Sec. 1 amending NRS 176.0926 (1)(b)(2)-(4).

9

b. S.B. 471 (2007), Sec. 2 amending NRS 176A.410(1), (1)(b)(1)-(2), (1)(q), (2)(b)-

10

(c), (3)(a)-(c), (4), (6) and (7).

11

c. S.B. 471 (2007), Sec 3 amending NRS 1790.230(4).

12

0 ~0 yO. ~ f') ......
~0

13

.,.,<l>n ~ !~ f ""' 0~

·"f/.l~oo

14

E.o.....~~,.~3

15 16

...:.,

"' 17

d. S.B. 471 (2007), Sec 4 amending NRS 1790.240(6)(a)-(d), (7), and (10). e. S.B. 471 (2007), Sec 5 amending NRS 1790.450 (4). f. S.B. 471 (2007), Sec 6 amending NRS 1790.460 (6)(a)-(d), (7) and (10). g. S.B. 471 (2007), Sec 7 amending NRS 200.366(3)(b)-(c). h. S.B. 471 (2007), Sec 8 amending NRS 213.1243 (4)(b)-(c), (5)(a)-(c), (6), (7),
(8), (9) and (1 0).

18

i.

S.B. 471 (2007), Sec 9 amending NRS 213.1245(1)(a)(1)-(2).

19

j.

S.B. 471 (2007), Sec 10 amending NRS 213.1255 (1)(b)-(c), (2), (3), (4), (5) and

20

(6).

21

k. S.B. 471 (2007), Sec 10.5 amending NRS 213.130(3), (9), (10) and (11).

22

I.

S.B. 471 (2007), Sec 11 amending Section 26 of A.B. 579.

23

m. S.B. 471 (2007), Sec 12 amending Section 27 of A.B. 579.

24

25 Ill

26 Ill

27 Ill

28
3 Numerical statutory changes are not addressed.
-3-

Case 2:08-cv-00822-JCM-PAL Document 142-1 Filed 02/07/13 Page 5 of 34 February 8, 2013

Case 2:08-cv-00822-JCM-PAL Document 142-1 Filed 02/07/13 Page 6 of 34
EXHIBIT A
EXHIBIT A

Case 2:08-cv-00822-JCM-PAL Document 142-1 Filed 02/07/13 Page 7 of 34
Senate Bill No..471- Committees on
Judiciary and Finance CHAPTER........ ..
AN ACT relating to public safety; revising the proviSIOns concerning certain sex offenders who are on lifetime supervision or released on parole, probation or a suspended sentence; requiring incarcerated sex offenders and offenders convicted of a crime against a child to register with a local law enforcement agency before being released from prison; requiting sex offenders and offenders convicted of a crime against a child who have not provided a biological specimen to provide a biological specimen at the time of registration with a local law enforcement agency; .increasing the minimum sentence for certain sexual offenses committed against a child; revising the penalty for a violation of a condition imposed pursuant to the program of lifetime supervision; revising provisions concerning the procedures for meetiogs to consider prisoners for parole; making various other changes to provisions relatiog to certain offenders; providing penalties; making appropriations; and providing other matters properly relating thereto.
Legislative Counsel's Digest: Existing law sets forth certain conditions to be imposed on sex offenders placed
under a program of lifetime supervision or released on parole, probation or a suspended sentence. (NRS 176A.4!0, 213.1243, 213.1245, 2-13.1255) Under sections 2, 8 and 10 of this bill, if an offender is: (I) qonvicted of certain crimes against a child under the age of 14 years; (2) a Tier 3 offender; and (3) placed under a program of Jifetime supervision or released on parole, probation or a suspended sentence, the offender must not establish a residence within 1,000 feet of certain locations frequented primarily by children and must be placed under a system of active electronic monitoring if the Chief Parole and Probation Officer deems such monitoring appropriate. Sections 2, 8 and 10. also require an offender pla.qed under a system of active electronic monitoring to pay to the extent ofhis ability any costs associated with such monitoring and prohibit a person from removing or disabling an electronic monitoring device without authorization.
In addition, sectionS 2, 8 and 9 of this bill prohibit certain sex offenders from being Within 500 feet of certain.locations frequented primarily by children. Section 8 also requires a court that issues an arrest warrant for a violation of a condition imposed pursuant to the program Of lifetime supervision to transmit notice of the issuance.of the warrant to the Central Repository for Nevada Records of Criminal History within 3 business days;
Existing law requires a sex offender or an offender convicted of a crime against a child to register with a local law enforcement agency within 48 hours after arriving or establishing a residence in the jurisdiction of the local law enforcement agency. (NRS 179D.240, NRS 179D.460) Section 3 of this bill requires an incarcerated offender convicted of a crime against a child to register, before being released from prison, with the appropriate local law enforcement agency in whose
...·.·.r...~..·..·...

Case 2:08-cv-00822-JCM-PAL Document 142-1 Filed 02/07/13 Page 8 of 34
-2-
jurisdiction the offender will be a resident offender upon release. Section 5 of this bill requires an incarcerated sex offender to r§gister, before being released, with the appropriate law enforcement agency in whose jurisdiction the sex offender will be a resident sex offender upon release.
Existing law requires a court to order, at sentencing, that a biological specimen be obtained from a person convicted of certain crimes. (NRS 176.0913) Section 4 of this bill requires an offender convicted of a crime against a child to provide a biological specimen at the time the offender registers with a local law enforcement agency if the offender has not already provided a biological specimen. Section 6 of this bill requires a sex offender to provide a biological specimen at the time the sex offender registers with a local law enforcement agency if the sex offender has not already provided a biological specimen.
Existing law establishes the imposition of minimum sentences for certain sexual offenses committed against a child. (NRS 200.366) Section 7 of this bill increases the minimum number of years that must be served before a person is eligible for parole for committing a sexual assault against a child -qnder the age of 16 years that does not result in substantial bodily harm to the child from 20 to 25 years. Section 7 also increases the minimum number of years that must be served before a person is eligible for parole for committing a sexual assault against a child under the age of 14 years that does not result in substantial bodily harm to the child from 20 to 35 years.
Section 10.5 of this bill clarifies the procedure concerning meetings to consider prisoners for parole by specifying that such meetings are quasi-judicial and limited to the rights set forth in statute. In addition. section 10.5 requires the State Board of Parole Commissioners to provide reasonable notice of a meeting and an opportunity to be present at the meeting to a prisoner who will be considered for parol~. Parole may not be denied at a meeting unless the Board has complied with those requirements. Section 10.5 further provides that a prisoner or his representative must be allowed 'to speak during a meeting to consider the prisoner for parole and requires the Board to provide -written notice of its decision and any recommendations it may have to the prisoner not later than lO working. days after the meeting. (NRS 213.130)
Sections 11 and 12 of this bill reconcile the provisions of Assembly Bill No. 579 of this session with the provisions of this bill.
Sections 13 and 14 of this bill make appropriations to the State Motor Pool and the Division of Parole and Probation of the Department ofPublic Safety.
THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:
Section 1. NRS 176.0926 is hereby amended to read as follows:
176.0926 1. If a defendant is convicted of a crime against a child, the comi shall, following the imposition of a sentence:
(a) NotifY the Central Repository of the conviction of the defendant, so the Central Repositmy may carry out the provisions for registration of the defendant pursuant to NRS 179D.230.
(b) Inform the defendant of the requh·ements for registration, including, but not limited to:
...·.·.~.·..·.....

Case 2:08-cv-00822-JCM-PAL Document 142-1 Filed 02/07/13 Page 9 of 34
-3-
(1) The duty to register in this State during any period in which he is a resident of this State or a nonresident who is a student or worker within this State and the time within w)lich he is required to register pursuant to NRS 179D.240;
(2) The duty to register in any other jurisdiction , including, without limitation, any jurisdiction outside tlte United States,
during any period in which he is a resident of the other jurisdiction or a nonresident who is a student or worker within the other jurisdiction;
(3) If he moves from this State to another jurisdiction,
including, without limitation, any jurisdiction outside the United States, the duty to register with the appropriate law enforcement
agency in the other jurisdiction; (4) The duty to notify the local law enforcement agency in
whose jurisdiction he formerly resided, in person or in writing, if he changes the address at which he resides, including if he moves from
this State to another jurisdiction, including, without limitation, any jurisdiction outside the United States, or changes the primaty
address at which he is a student or worker; and (5) The duty to notify immediately the appropriate local law
enforcement agency if the defendant is, expects to be or becomes enrolled as a student at an institution of higher education or changes the date of commencement or termination of his enrollment at an institution of higher education or if the defendant is, expects to be or becomes a worker at an institution of higher education or changes the date of commencement or termination of his work at an institution of higher education.
(c) Require the defendant to read and sign a form confilming that the requirements for registration have been explained to him.
2. The failure to provide the defendant with the information or confirmation form required by paragraphs (b) and (c) of subsection 1 does not affect the duty of the defendant to register and to comply with all other provisions for registration pursuant to NRS 179D.200 to 179D.290, inclusive.
Sec. 2. NRS 176A.410 is hereby amended to read as follows: 176A.410 1. Except as otherwise provided in subsection~ 6, if a defendant is convicted of a sexual offense and the court grants probation or suspends the sentence, the court shall, in addition to any other condition ordered pursuant to NRS 176A.400, order as a condition of probation or suspension of sentence that the defendant: (a) Submit to a search and seizure of his person, residence or vehicle or any property under his control, at any time of the day or night, without a warrant, by any parole and probation officer or any
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peace officer, for the purpose of determining whether the defendant has violated any condition of probation or s.uspension of sentence or
committed any crime . M (b) Reside at a location only if W :
(1) The residence has been approved by the parole and probation officer assigned to the defendant . [and keep}
(2) The defendllllt keeps the parole and probation officer
llssigned to the defendllnt infmmed of his current address . H
(c) Accept a position of employment or a position as a volunteer only if it has been approved by the parole and probation officer assigned to the defendant and keep the parole and probation officer infmmed of the location of his position of employment or position as a volunteer. t,t
(d) Abide by any curfew imposed by the parole and probation
officer assigned to the defendant. M
(e) Participate in and complete a program of professional
counseling approved by the Division . M
(f) Submit to periodic tests, as requested by the parole and probation officer assigned to the defendant, to determine whether
the defendant is using a controlled substance . H
(g) Submit to periodic polygraph examinations, as requested by the parole and probation officer assigned to the defendant . M
(h) Abstain from consuming, possessing or having under his
control any alcohol. M
(i) Not have contact or communicate with a victim of the sexual offense or a witness who testified against the defendant or solicit another person to engage in such contact or communication on behalf of the defendant, unless approved by the parole and probation officer assigned to the defendant, and a written agreement is entered
into and signed in the manner set forth in subsection f4 5. G) Not use aliases or fictitious names. H
(k) Not obtain a post office box unless the defendant receives permission from the parole and probation officer assigned to the
defendant. H
(I) Not have contact with a person less than 18 years of age in a secluded envirorunent unless another adult who has never been convicted of a sexual offense is present and permission has been obtained from the parole and probation officer assigned to the
defendant in advance of each such contact. H
(m) Unless approved by the parole and probation officer assigned to the defendant and by a psychiatrist, psychologist or counselor. treating the defendant, if any, not [be in or near:
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(I) A] knowingly be within 500 feet of any place, or if the
place is tt structure, within 500 feet of the actual structure, that is designed primarily for use by or for children, including, without

!Imitation, a public orpril•ate school, a school bus stop, a center or

facility that provides day care services, a video arcade, an

amusement park, a playground, a park, -(w!leol or sehoel gro:1t1cls;

(3) AJ an athletic field or a facility for youth sports, or a

motion picture theater. f;-ef

(3) ,\ business that primarily has ehildren as customers or

eondt·.ets eve11\s that primnrily children attend;] The provisions of

this paragraph apply only to tt defendant who is a Tier 3 offender.

(n) Comply with any protocol concerning the use of prescription

medication prescribed by a treating physician, including, without

limitation, any protocol concerning the use of psychotropic
medication . hl

(o) Not possess any sexually explicit material that is deemed

inappropriate by
defendant . hl

the

parole

and

probation

officer
.

assigned

to

the

(p) Not patronize a business which offers a sexually related form

of entertainment and which is deemed inappropriate by the parole
and probation officer assigned to the defendant . hl

(q) Not possess any electronic device capable of accessing the

Internet and not access the Internet through any such device or any

other means, unless possession of such a device or such access is

approved by the parole and probation officer assigned to the defendant. t,-aru!t ·

(r) Inform the parole and probation officer assigned to the

defendant if the defendant expects to be or becomes enrolled as a

student at an institution of higher education or changes the date of

commencement or termination of his emolhnent at an institution of

higher education. As used in this paragraph, "institution of higher

education" has the meaning ascribed to it in NRS 1790.045.

2. Except as otherwise provided in subsection 6, if a
defendant is convicted of till offense listed in subsection 6 ofNRS

213.1255 against a child under the age of 14 years, the defendant is a Tier 3 offender and the court grants probation or suspends the

sentence ofthe defendant, the court shall, in addition to any other

condition ordered pursuant to subsection 1, order as a condition of

probation or suspension ofsentence that the defendant:
(a) Reside at a location only if the residence is not located within 1,000 feet of any place, or if the place is a structure, within

1,000 feet ofthe actual structure, that is designed primarily for use by or for children, including, without limitation, a public or

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private school, a school bus stop, a center or facility that provides

day care sen,ices; a video arcade, an amusement park, a

playground, a park, an athletic field or a facility for youth sports,

or a motion picture theater.

(b) As deemed appropriate by the Chief Parole and Probation

Officer, be placed under a system of active electronic monitoring

that is capable of identijj,ing his location and producing, upon

request, reports or records of his presence near or within a crime

scene or prohibited area or his departure from a specified

geographic location.

(c) Pay any costs associated with his participation under the

system of active electronic monitoring, to the extent of his ability

to pay.

3. A defendant placed under the system of active electronic

monitoring pursuant to subsection 2 shall:

(a) Follow the · instmctions provided by the Division to

maintain the electronic monitoring device in working order.

(b) Report tmy incidental damage or defacement of the

electronic monitoring device to the Division within 2 hours after

the occurrence ofthe damage or defacement.

(c) Abide by any other conditions set forth by the Division with

regard to his participation under the system of active electronic

monitoring.

4. Except as otherwise provided in this subsection, a person

who intentionally removes or disables or attempts to remove or

disable an electronic monitoring de!'ice placed on a defendant

pursuant to this section is guilty of a gross misdemeanor. The

provisions of this subsection do not prohibit a person authorized

by the Division from pe1jorming maintenance or repairs to an

electronic monitoring device.

5. A w1·itten agreement entered into pursuant to paragraph (i) of

subsection I must state that the contact or communication is in the

best interest of the victim or witness, and specify the type of contact

or communication authorized. The written agreement must be

signed and agreed to by:

(a) The victim or the witness;

(b) The defendant;

.

(c) The parole and probation officer assigned to the defendant;·

(d) The psychiatrist, psychologist or counselor treating the

defendant, victim or witness, if any; and

(e) If the victim or witness is a child under 18 years of age, each

parent, guardian or custodian of the child.

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f4 6. The court is not required to impose a condition of

probation or suspension of sentence listed in [subseetim;]

subsections I and 2 if the comi finds that extraordinaty

circumstances are present and the court enters those ·extraordinary

circumstances in the record.

f4.t 7. As used in this section, "sexual offense" has the

meaning ascribed to it in NRS 179D.410.

Sec. 3. l\TRS 179D.230 is hereby amended to read as follows:

179D.230 1. If the Central Repositmy receives notice from a

court pursuant to NRS 176.0926 that an offender has been convicted

of a crime against a child, the Central Repository shall:

(a) If a record of registration has not previously been established

for the offender, notifY the local law enforcement agency so that a

record of registration may be established; or

(b) If a record of registration has previously been established for

the offender, update the record of registration for the offender and

notifY the appropriate local law enforcement agencies.

2. If the offender named in the notice is granted probation or

otherwise will not be incarcerated or confined, the Central

Repository shall immediately provide notification conceming the

offender to the appropriate local law enforcement agencies and, if

the offender resides in a jurisdiction which is outside of this State, to

the appropriate law enforcement agency in that jurisdiction.

3. If an offender is incarcerated or confined and has previously

been convicted of a crime against a child, before the offender is

released:

(a) The Department of Co!Tections or a local law enforcement

agency in whose facility the offender is incarcerated or confined

shall:

(I) Inform the offender of the requirements for registration,

including, but not limited to:

(I) The duty to register in this State during any period in

which he is a resident of this State or a nonresident who is a student

or worker within this State and the time within which he is required

.to register pursuant to NRS 179D.240;

(II) The duty to register in any other jurisdiction during

any period in which he is a resident of the other jurisdiction or a

nonresident who is a student or worker within the other jurisdiction;

(III) If he moves from this State to another jurisdiction,

the duty to register with the appropriate law enforcement agency in

the other jurisdiction;

·

(IV) The duty to notifY the local law enforcement agency

for the jurisdiction in which he now resides, in person, and the

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jurisdiction in which he most recently resided, in person or in writing, if he changes the address at which he resides, including i( he moves from this State to another jurisdiction, or changes the primaty address at which he is a student or worker; and
(V) The duty to notifY immediately the appropriate local law enforcement agency if the offender is, expects to be or becomes enrolled as a student at an institution of higher education or changes the date of commencement or tetmination of his enrollment at an institutiort of higher education or if the offender is, expects to be or becomes a worker at an institution of higher education or changes the date of commencement or termination of his work at an institution of higher education; and
(2) Require the offender to read and sign a form confirming that the requirements for registration have been explained to him and to forward the form to the Central Repositmy.
(b) The Central Repository shall: (I) Update the record of registration for the offender; and (2) Provide notification concerning the offender to the
appropriate local law enforcement agencies and, if the offender will reside upon release in a jurisdiction which is outside of this State, to the appropriate law enforcement agency in that jurisdiction.
4. If an offender convicted of a crime against a child is incarcerated or confined, before the offender is released, the offender sitall register, pursuant to 179D.240, with the appropriate sheriff's office, metropolitan police department or city police department in whose jurisdiction the offender will be a resident offender.
5. The failure to provide an offender with the information or confirmation form required by paragraph (a) of subsection 3 does not affect th,e duty of the offender to register and to comply with all other provlsions for registration.
~ 6. If the Central Repositmy receives notice from another jurisdiction or the Federal Bureau of Investigation that an offender convicted of a crime against a child is now residing or is a student or worker within this State, the Central Repositmy shall:
(a) Immediately provide notification concerning the offender to the appropriate local law enforcement agencies; and
(b) Establish a record of registration for the offender with the assistance of the local law enforcement agency.
Sec. 4. NRS 179D.240 is hereby amended to read as follows: 179D.240 1. In addition to any other registration that is required pursuant to NRS 179D.230, each offender who, after July I, 1956, is or has been convicted of a crime against a child shall
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-9~
register with a local law enforcement agency pursuant to the provisions of this section.
2. Except as otherwise provided in subsection 3, if the offender resides or is present for 48 hours or more within:
(a) A county; or (b) An incorporated city that does not have a city police department, "" the offender shall be deemed a resident offender and shall register with the sheriffs office of the county or, if the county or the city is within the jurisdiction of a metropolitan police department, the metropolitan police depatiment, not later than 48 hours after aniving or establishing a residence within the county or the city. 3. If the offender resides or is present for 48 hours or more within an incorporated city that has a city police department, the offender shall be deemed a resident offender and shall register with the city police depatiment not later than 48 hours after aniving or establishing a residence within the city. 4. If the offender is a nomesident offender who is a student or worker within this State, the offender shall register with the appropriate sheriffs office, metropolitan police department or city police depatiment in whose jurisdiction he is a student or worker not later than 48 hours after becoming a student or worker within this State. 5. A resident or nomesident offender shall immediately notifY the appropriate local law enforcement agency if: (a) The offender is, expects to be or becomes enrolled as a student at an institution of higher education or changes the date of commencement or termination of his emollment at an institution of higher education; or (b) The offender is, expects to be or becomes a worker at an institution of higher education or changes the date of commencement or termination of his work at an institution of higher education. "" The offender shall provide the name, address and type of each such institution of higher education. 6. To register with a local law enforcement agency pursuant to this section, the offender shall: (a) [Appear] Unless the offender is incarcerated or confined and required to register pursuant to subsection 4 of NRS 179D.230, appear personally at the office of the appropriate local law enforcement agency;

.. . .:r.~.···.

. t ~.

•

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Case 2:08-cv-00822-JCM-PAL Document 142-1 Filed 02/07/13 Page 16 of 34
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(b) Provide all infmmation that is requested by the local law enforcement agency, including, but not limited to, fingerprints and a
photograph; faHEit
(c) If the offender has not provided a biological specimen pursuant to NRS 176.0913 or 176.0916, provide tt biological specimen to the local law enforcement agency; am!
(d) Sign and date the record of registration or some other proof of registration in the presence of an officer of the ·local law
enforcement agency H or in the presence of 1111 officer of the
institution or facility in which the offender is incarcerated or confined.
7. If an offender convicted of II crime ugainst a child must provide a biological specimen pursuant to paragraph (c) of subsection 6, the local law enforcemelt/ agency shall arrange for the biological specimen to be obtained from the offender. The locrtl law enforcement agency shall provide the specimen to the forensic laboratory that has been designated by the county in which the offender resides or is present to conduct ot· oversee genetic marker testing for the county pursuant to NRS 176.0917.'
8. When an offender registers, the local law enforcement agency shall:
(a) Inform the offender of the duty to notifY the local law enforcement agency if the offender changes the address at which he resides or changes the primary address at which he is a student or worker; and
(b) Inform the offender of the duty to register with the local law enforcement agency in whose jurisdiction the offender relocates.
{:&1 9. After the offender registers . with the local law enforcement agency, the local law enforcement agency shall forward to the Central Repository the information collected, including the fingerprints and a photograph of the offender.
fRt 10. If the Central Repository has not previously
established a record of registration for an offender described in
subsection fl4 9, the Central Repository shall:
(a) Establish a record of registration for the offender; and (b) Provide notification concerning the offender to the appropriate local law enforcement agencies.
J-l4t 11. When an offender notifies a local law enforcement
agency that: (a) The offender is, expects to be or becomes enrolled as a
student at an institution of higher education or changes the date of commencement or termination of his enrolhnent at an institution of higher education; or
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(b) The offender is, expects to be or becomes a worker at an institution of ..higher education or changes the date of commencement or termination of his work at an institution of higher education, '"' and provides the name, address and type of each such institution of higher education, the local law enforcement agency shall immediately provide that information to the Central Repository and to the appropriate campus police depatiment.
Sec. 5. NRS 179D.450 is hereby amended to read as follows: 179D.450 1. If the Central Repository receives notice from a court pursuant to NRS 176.0927 that a sex offender has been convicted of a sexual offense or pursuant to NRS 62F.250 that a juvenile sex offender has been deemed to be an adult sex offender, the Central Repositmy shall: (a) If a record of registration has not previously been established for the sex offender, notify the local law enforcement agency so that a record of registration may be established; or (b) If a record of registration has previously been established for the sex offender, update the record of registration for the sex offender and notify the appropriate local law enforcement agencies. 2. If the sex offender named in the notice is granted probation or otherwise will not be incarcerated or confined or if the sex offender named in the notice has been deemed to be an adult sex offender pursuant to NRS 62F.250 and is not otherwise incarcerated or confined: (a) The Central Repository shall immediately provide notification conceming the sex offender to the appropriate local law enforcement agencies and, if the sex offender resides in a jurisdiction which is outside of this State, to the appropriate law enforcement agency in that jurisdiction; and · (b) If the sex offender is subject to community notification, the Central Repositmy shall anange for the assessment of the risk of recidivism of the sex offender pursuant to the guidelines and procedures for community notification established by the Attomey General pursuant to NRS 179D.600 to 179D.800, inclusive. 3. If a sex offender is incarcerated or confined and has previously been convicted of a sexual offense as described in NRS 179D.410, before the sex offender is released: (a) The Depatiment of CotTections or a local law enforcement agency in whose facility the sex offender is incarcerated or confined shall:
(I) Inform the sex offender of the requirements for registration, including, but not limited to:
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Case 2:08-cv-00822-JCM-PAL Document 142-1 Filed 02/07/13 Page 18 of 34
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(I) The duty to register in this State during any period in which he is a resident of this State or a nonresident who is a student or worker within this State and the time within which he is required to register pursuant to NRS 179D.460;
(II) The duty to register in any other jurisdiction during any period in which he is a resident of the other jurisdiction or a nomesident who is a student or worker within the other jurisdiction;
(III) If he moves from this State to another jurisdiction, the duty to register with the appropriate law enforcement agency in the other jurisdiction;
(IV) The duty to notifY the local law enforcement agency for the jurisdiction in which he now resides, in person, and the jurisdiction in which he fmmerly resided, in person or in wliting, if he changes the address at which he resides, including if he moves from this State to another jurisdiction, or changes the primmy address at which he is a student or worker; and
(V) The duty to notifY immediately the appropriate local law enforcement agency if the sex offender is, expects to be or becomes enrolled as a student at an institution of higher education or changes the date of commencement or termination of his enrollment at an institution of higher education or if the sex offender is, expects to be or becomes a worker at an institution of higher education or changes the date of commencement or termination of his work at an institution of higher education; and
(2) Require the sex offender to read and sign a fonn confnming that the requirements for registration have been explained to him and to forward the form to the Central Repository.
(b) The Central Repository shall: (1) Update the record of registration for the sex offender; (2) If the sex offender is subject to community notification,
arrange for the assessment of the risk of recidivism of the sex offender pursuant to the guidelines and procedures for community notification established by the Attomey General pursuant to NRS 179D.600 to 179D.800, inclusive; and
(3) Provide notification conceming the sex offender to the appropriate local law enforcement agencies and, if the sex offender will reside upon release in a jurisdiction which is outside of this State; to the appropriate law enforcement agency in that jurisdiction.
4. If a sex offender is incarcerated or confined, before the sex offender is released, the sex offender shall register, pursuant to 1\'RS 179D.460, with the appropriate sheriff's office, metropolitan police department or city police department in whose jurisdiction the sex offender will be a resident sex offender.
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-135. The failure to provide a sex offender wit)l the information or confirmation form required by paragraph (a) of subsection 3 does not affect the duty of the sex offender to register and to comply with all other provisions for registration.
R 6. If the Central Repository receives notice from another
jurisdiction or the Federal Bureau of Investigation that a sex offender is now residing or is a student or worker within this State, the Central Repository shall:
(a) Immediately provide notification conceming the sex offender to the appropriate local law enforcement agencies;
(b) Establish a record of registration for the sex offender; and (c) If the sex offender is subject to conununity notification, arrange for the assessment of the risk of recidivism of the sex offender pursuant to the guidelines and procedures for conununity notification established by the Attomey General pursuant to NRS 179D.600 to 179D.800, inclusive. Sec. 6. NRS 179D.460 is hereby amended to read as follows: 179D.460 !. In addition to any other registration that is required pursuant to NRS 179D.450, each sex offender who, after July 1, 1956, is or has been convicted of a sexual offense shall register with a local law enforcement agency pursuant to the provisions of this section. 2. Except as otherwise provided in subsection 3, if the sex offender resides or is present for 48 hours or more within: (a) A county; or (b) An incorporated city that does not have a city police department, ._. the sex offender shall be deemed a resident sex offender and shall register with the sheriffs office of the county or, if the county or the city is within the jurisdiction of a metropolitan police depa1tment, the metropolitan police department, not later than 48 hours after arriving or establishing· a residence within the county or the city. 3. If the sex offender resides or is present for 48 hours or more within an incmporated city that has a city police department, the sex offender shall be deemed a resident sex offender and shall register with the city police department not later than 48 hours after arriving or establishing a residence within the city. 4. If the sex offender is a nonresident sex offender who is a student or worker within this State, the sex offender shall register with the appropriate sheriffs office, metropolitan police depa1iment or city police department in whose jurisdiction he is a student or worker not later tlian 48 hours after becoming a student or worker . within this State.
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5. A resident or nonresident sex offender shall immediately notify the appropriate local law enforcement agency if:
(a) The sex offender is, expects to be or becomes enrolled as a student at an institution of higher education or changes the date of commencement or termination of his enrollment at an institution of higher education; or
(b) The sex offender is, expects to be or becomes a worker at an institution of higher education or changes the .date of commencement or tetmination of his work at an institution of higher education. '-+ The sex offender shall provide the name, address and type of each such institution of higher education.
6. To register with a local law enforcement agency pursuant to this section, the sex offender shall:
(a) {Aflf>eaf} Unless the sex offender is incarcerated or confined and required to register pursuant to subsection 4 ofNRS 179D.450, appear personally at the office of the appropriate local law enforcement agency;
(b) Provide all information that is requested by the local law enforcement agency, including, but not limited to, fingerprints and a
photograph; faMt (c) If the sex offender has not provided a biological specimen
purs111111t to NRS 176.0913 or 176.0916, provide a biological specimen to the local law enforcement agency; and
(d) Sign and date the record of registration or some· other proof of registration of the local law enforcement agency in the presence
of an officer of the local law enforcement agency H or in the
presence ofan officer ofthe institution or facility in which the sex offender is incarcerated or confined.
7. If a sex offender must provide a biological specimen pursuant to paragraph (c) of subsection 6, the local law enforcement agency shall arrange for the biological specimen to be obtained fi·om the sex offender. The local law enforcement agency shall provide the specimen to the forensic laborafOIJ' that has been designated by the county in which the sex offender resides or is present to conduct or oversee genetic marker testing for the county pursuant to NRS 176.0917.
8. When a sex offender registers, the local law enforcement agency shall:
(a) Inform the sex offender of the duty to notify the local law enforcement agency if the sex offender changes the address at which he resides, including if he moves from this State to another
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jurisdiction, or changes the prima1y address at which he is a student or worker; and
(b) Inform the sex offender of the duty to register with the local law enforcement agency in whose jurisdiction the sex offender relocates. ·
fS.t 9. After the sex offender registers with the local law
enforcement agency, the local law enforcement agency shall forward to the Central Repository the infmmation collected, including the finge1prints and a photograph of the sex offender.
{!y. I 0. If the Central Repository has not previously established arecord of registration for a sex offender described in subsection f8,t 9, the Central Repositmy shall:
(a) Establish a record of registration for the sex offender; (b) Provide notification conceming the sex offender to the appropriate local law enforcement agencies; and (c) If the sex offender is subject to community notification and has not othe1wise been assigned a level of notification, anange for the assessment of the risk of recidivism of the sex offender pursuant to the guidelines and procedures for community notification established by the Attomey General pursuant to NRS 1790.600 to 1790.800, inclusive.
tJ4t 11. When a sex offender notifies a local law enforcement
agency that: (a) The sex offender is, expects to be or becomes enrolled as a
·student at an institution of higher education or changes the date of commencement or termination of his emollment at an institution of higher education; or
(b) The sex offender is, expects to be or becomes a worker at an institution of higher education or changes the date of commencement or termination of his work at an institution of higher education, ._. and provides the name, address and type of each such institution of higher education, the local law enforcement agency shall immediately provide that information to the Central Repositmy and to the appropriate campus police depmiment.
Sec. 7. NRS 200.366 is hereby amended to read as follows: 200.366 l. A person who subjects another person to sexual penetration, or who forces another person to make a sexual penetration on himself or another; or on a beast, against the will of the victim or under conditions in which the perpetrator knows or should. know that the victim is mentally or physically incapable of resisting or understanding the nature of his conduct, is guilty of sexual assault.
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2. Except as othetwise provided in subsections 3 and 4, a person who commits a sexual assault is guilty of a categmy A felony and shall be punished:
(a) If substantial bodily ham1 to the victim results from the actions of the defendant conunitted in connection with or as a part of the sexual assault, by imprisonment in the state prison:
(1) For life without the possibility of parole; or (2) For life with the possibility of parole, with eligibility for parole beginning when a minimum of 15 years has been served. (b) If no substantial bodily harm to the victim results, by imprisonment in the state prison for life with the possibility of parole, with eligibility for parole beginning when a minimum of 10 years has been served. 3. Except as otherwise provided in subsection 4, a person who conunits a sexual assault against a child nuder the age of 16 years is guilty of a category A felony and shall be punished: (a) If the crime results in substantial bodily harm to the child, by imprisonment in the state prison for life without the possibility of parole. (b) Except as otherwise provided in paragraph (c), if the crime does not result in substantial bodily harm to the child, by imprisonment in the state prison for life with the possibility of parole, with eligibility for parole beginning when a minimum of
RGt 25 years has been served.
(c) If the crime is committed against a child under the age of 14 years and does not result in substantial bodily harm to the child, by imprisonment in the state prison for life with the possibility of parole, with eligibility for parole beginning when a minimum of
RGt 35 years has been served.
4. A person who commits a sexual assault against a child under the age of 16 years and who has been previously convicted of:
(a) A sexual assault pursuant to this section or any other sexual offense against a child; or
(b) An offense committed in another jurisdiction that, if COlllllitted in this State, would constitute a sexual assault pursuant to this section or any other sexual offense against a child, ""' is guilty of a category A felony and shall be punished by imprisonment in the state prison for life without the possibility of parole.
5. For the purpose of this section, "other sexual offense against a child" means any act committed by an adult upon a child constituting:
(a) Incest pursuant to NRS 201.180;
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(b) Lewdness with a child pursuant to NRS 201.230;

(c) Sado-masochistic abuse pursuant to NRS 20 1.262; or

(d) Luring a child using a computer, system or network pursuant

to NRS 201.560, if punished as a felony.

.

Sec. 8. NRS 213.1243 is hereby amended to read as follows:

213.1243 1. The Board shall establish by regulation a

program of lifetime supervision of sex offenders to commence after

any period of probation or any term of imprisonment and any period

of release on parole. The program must provide for the lifetime

supervision of sex offenders by parole and probation officers.

2. Lifetime supervision shall be deemed a fmm ofparole for:

(a) The limited purposes of the applicability of the provisions of

NRS 213.1076, subsection 9 ofNRS 213.1095, NRS 213.1096 and

subsection 2 ofNRS 213.110; and

·

(b) The purposes of the Interstate Compact for Adult Offender

Supervision ratified, enacted and entered into by the State ofNevada

pursuant to NRS 213.215.

3. Except as otherwise provided in subsection 8, the Board

shall require as a condition of lifetime supervision that the sex

offender, unless approved by the parole and probation officer

assigned to the sex offender and by a psychiatrist, psychologist or

counselor treating the sex offender, if any, not knowingly be

within 500 feet of any place, or if the place is a structure, within

500 feet of the actual structure, that is designed primarily for use

by or for children, including, without limitation, a public or

prb•ate school, a school bus stop, a center or facility that provides

day care sen•ices, a video arcade, 1111 amusement park, a

playground, a park, an athletic field or a facility for youth sports,

or a motion picture theater. The provisions of this subsection

apply only to a sex offender who is a Tier 3 offender.

4. Except as otherwise provided in subsection 8, if a sex

offender is com•icted of a sexual offense listed in subsection 6 of

NRS 213.1255 against a child under the age of 14 years, the sex

offender is a Tie1· 3 offender and the sex offender is sentenced to

lifetime supervision, the Board shall require as a condition of

lifetime supervision that the sex offender:

(a) Reside at a location only if the residence is not located

within 1,000 feet of any place, or ifthe place is a structure, within

1;000 feet ofthe actual structure, that is designed primarily for use

by or for children, including, without limitation, a public or

private school, a school bus stop, a center or facility that provides

day care services, a i•ideo arcade, an amusement park, a

,,,-, ,~,·,',,,,,

Case 2:08-cv-00822-JCM-PAL Document 142-1 Filed 02/07/13 Page 24 of 34
- 18playground, a park, an athletic field m· a facility for yoath sports, or a motion picture theater.
(b) As deemed appropriate by the Chief, be placed under a system of active electronic monitoring that is capable of identifj>ing !tis location am/ producing, upon request, reports or records of his presence near or within a crime scene or prohibited area or his departure from a ~pec(fied geographic location.
(c) Pay any costs associated with his participation under the system of active electmnic monitoring, to the extent of his ability to pay.
5. A [perseR] sex offender placed under the system of active electronic monitoringpursuant to subsection 3 shall:
(a) Follow the instructions provided by the Division to maintain the electronic monitoring device in working order.
(b) Report any incidental damage or defacement of the electronic monitoring device to the Division within 2 hours after tlte occurrence ofthe damage or defacement
(c) Abide by any other conditi01zs set forth by the Division with regard to his participation under the system of active electronic monitoring.
6. Except as otherwise provided in this subsection, a person who intentionally removes or disables or attempts to remove or disable an electronic monitoring device placed on a sex offender pursuant to this section is guilty of a gross misdemeanor. The provisions of this subsection do not prohibit a person authorized by the Division fi·om pe1jorming maintenance or repairs to an electronic monitoring device.
7. Except as otherwise provided in subsection 6, a sex offender who commits a violation of a condition imposed on him pursuant to the program of lifetime supervision is guilty of{+
(a) Jf the violation eonstitutes a minor violation, a misdemeanor. (b) If the violatioa eollstitHtes a ll->ajer violatiell,] a category B felony and shall be punished by imprisonment in the state prison for a minimum te1m of not less than 1 year and a maximum term of not .more th~n 6 years, and may be fiuiher punished by a fine of not more tllan $5,000.
f+.t 8. The Board is not required to impose a condition
pursuant to the program of lifetime supervision listed in subsections 3 and 4 if the Board finds that extraordifiUIJ' drcumsta11ces are present ami the Board states those extraordinmy circumstances in writing.
9. If a court issues a warrant for arrest for a \>io/ation of this section, the court shall cause to be transmitted, in the man11er
...·..r..~..··.....

Case 2:08-cv-00822-JCM-PAL Document 142-1 Filed 02/07/13 Page 25 of 34
-19-
prescribed by the Central RepositotJ' for Nevada Records of Criminal HistotJ•, notice of the issuance of the warrant for arrest in a manner which ensures that such notice is received by the Central Repository within 3 business days.
I 0. For the purposes of prosecution of a violation by a [person] sex offender of a condition imposed upon him pursuant to the
program of lifetime supervision, the violation shall be deemed to have occurred in, and may only be prosecuted in, the county in which the court that imposed the sentence of lifetime supervision pursuant to NRS 176.0931 is located, regardless of whether the acts or conduct constituting the violation took place, in whole or in part, within or outside that county or within or outside this State.
[5. As used in this seetion: (a) "Major violation" means a violation \vhieh poses a threat to lae safely or well being ofethers and \\4rieh involves:
(I) The eominissien of atl)' erime that is punishable as a gross misdemeanor or felony or any erime that involves a vietim who is less than I g years of age;
(2) The use of a deadly weapon, explosives or a tirearm; (3) The. use or threatened use of foree or ':ielenee against a
fle!Wflt
(4) Death or bodily inj~H'J' of a persm1; (5) An aet of domestie vielenee; (6) Harassment, stalking or tl±reats of any kina; or (7) The .fereible or Hnlawful entry of a home, lmilding, sffiretnre or vehiele in v:ffieh a pemon is preseBt. (b) "Miller violation" means a violation that does net eonstitute a major violation.] · Sec. 9. NRS 213.1245 is hereby amended to read as follows: 213.1245 I. Except as otherwise provided in subsection 3, if the Board releases on parole a prisoner convicted of an offense listed in NRS 179D.620, the Board shall, in addition to any other condition of parole, require as a condition of parole that the parolee: (a) Reside at a location only if tift: · (1) The residence has been approved by the parole and probation officer assigned to the parolee. (and keep] (2) The parolee keeps the parole and probation officer
infotmed of his cunent address. hl
(b) Accept a position of employment or a position as a volunteer only if it has been approved by the parole and probation officer assigned to the parolee and keep the parole and probation officer infonned of the location of his position of employment or position
as a volunteer . M
.*.'-..!...-..'·....*

Case 2:08-cv-00822-JCM-PAL Document 142-1 Filed 02/07/13 Page 26 of 34

-20-

(c) Abide by any curfew imposed by the parole and probation

officer assigned to the parolee. hl

(d) Participate in and complete a program of professional

counseling approved by the Division . hl

(e) Submit to periodic tests, as requested by the parole and

probation officer assigned to the parolee, to determine whether the

parolee is using a controlled substance . hl

the

(f) Submit parole and

ptoropbeartiioodnicofpfiocleyrgarsaspihgneexdamtointhaetipoanrso, laese.rehqluested

by

(g) Abstain from consuming, possessing or having under his

control any alcohol. H

(h) Not have contact or communicate with a victim of the

offense or a witness who testified against the parolee or solicit

another person to engage in such contact or communication on

behalf of the parolee, unless approved by the parole and probation

officer assigned to the parolee, and a into and signed in the manner set fmih

written agreement is
in subsection 2. hl .

entered

(i) Not use aliases or fictitious names. hl

U) Not obtain a post office box unless the parolee receives

permission from the parole and probation officer assigned to the

parolee. H

(k) Not have contact with a person less than 18 years of age in a

secluded environment unless another adult who has never been

convicted of an offense listed in NRS 179D.410 is present and

permission assigned to

has the

been obtained from the parole and probation
parolee in advance of each such contact . hl

officer

(I) Unless approved by the parole and probation officer assigned

to the parolee and by a psychiatrist, psychologist or counselor

treating the parolee, if any, not [be in or near: (!) A] knowingly be within 500 feet of any

place,

or

if the

place is a structure, within 500 feet of the actual structure, that is

designed primarily for use by or for children, including, without

limitation, a public orpril,ate school, a school bus stop, a center or

facility that p1·ovides day care services, a video arcade, an

amusement pm*, a playground, a park, [sehool or sehool gr&:mds;

(2) A] an athletic field or a facility for youth sports, or a

motion picture theater. h-ef

(3) A business that primarily has ehildren as euston>et'S or

e<mduets eveets that primarily ehildree atteea;] The provisions of

this paragraph apply only to a parolee who is a Tier 3 offender.

(m) Comply with any protocol concerning the use of

prescription medication prescribed by a treating physician,

...·..~...·.·.....

Case 2:08-cv-00822-JCM-PAL Document 142-1 Filed 02/07/13 Page 27 of 34
-21-
including, without limitation, any protocol concerning the use of
psychotropic medication. hl
(n) Not possess any sexually explicit material that is deemed inappropriate by the parole and probation officer assigned to the
parolee. hl
(o) Not patronize a business which offers a sexually related form of entertainment and which is deemed inappropriate by the parole
and probation officer assigned to the parolee . hl
(p) Not possess any electronic device capable of accessing the Internet and not access the Intemet through any such device or any other means, unless possession of such a device or such access is approved by the parole and probation officer assigned to the parolee
.~
(q) Inform the parole and probation officer assigned to the parolee if the parolee expects to be or becomes emolled as a student at an institution of higher education or changes the date of commencement or termination of his emollment at an institution of higher education. As used in this paragraph, "institution of higher education" has the meaning ascribed to it in NRS 179D.045.
2. A written agreement entered into pursuant to paragraph (h) of subsection 1 must state that the contact or communication is in the best interest of the victim or witness, and specify the type of contact or communication authorized. The written agreement must be signed and agreed to by:
(a) The victim or the witness; (b) The parolee; (c) The parole and probation officer assigned to the parolee; (d) The psychiatrist, psychologist or counselor treating the parolee, victim or witness, if any; and (e) If the victim or witness is a child under 18 years of age, each parent, guardian or custodian of the child. 3. The Board is not required to impose a condition of parole listed in subsection 1 if the Board finds that extraordinary circumstances are present and the Board states those extraordinary circumstances in writing. Sec. 10. NRS 213.1255 is hereby amended to read as follows: 213.1255 1. Except as othenvi~e provided in subsection 4, in addition to any conditions of parole required to be imposed pursuant to NRS 213.1245, as lt condition ofreleasing on parole a prisoner who was com>icted of committing an offense listed in subsection 6 against a child under the age of14 years and who is a Tier 3 offender, the Board shall require that the parolee:
...·..~...·.·.....

Case 2:08-cv-00822-JCM-PAL Document 142-1 Filed 02/07/13 Page 28 of 34

-22-
(a) Reside at a location only if the reside~tce is not located within 1,000 feel ofany place, or if the place is a stmcture, wit!Iin
1,000 feet ofthe actual stmcture, that is designed primarily for use by or for children, including, without limitation, 11 public or pril•ate school, a school bus stop, a center or facility that provides day care sen•ices, a video arcade, an amusement park, a· playground, a park, an athletic field or a facility for youth ~ports, or a motion picture theater.
(b) As tleemetl appropriate by the Chief, be placed under a system of active electronic monitoring that is capable of identijj>ing his location anti producing, upon request; reports or records of his presence near or within a crime scene or prohibited area or his departure from a ~pecijied geographic location.
(c) Pay any costs associated with his participation under the system of actb•e electronic monitoring, to the extent of his ability to pay.
2. A parolee placet! under the system of active electronic monitoring pursuant to subsection 1 shall:
(a) Follow the instructions provided by the Division to maintain the electronic monitm:ing de1•ice in working order.
(b) Report any incidental damage or defacement of the electronic monitoring device to the Division within 2 hours after the occurrence ofthe damage or defacement.
(c) Abide by any other conditions set forth by the Division with regard to his participation antler the system of active electronic monitoring.
3. Except as otherwise provided in this subsection, a person who intentionally removes or disables or attempts to remove or disable an electronic monitoring device placed on a parolee pursuant to this section is guilty of 11 gross misdemeanor. The provisions of this subsection do not prohibit a person authorized by the Division ji·om performing maintenance or repairs to an electronic monitoring device.
4. The Boaril is not required to impose a condition ofparole
listed in subsection 1 if the Board finds that extraordinmy
circumstances are present ami the Board states those extraordinary circumstances in writing.
5. In addition to any conditions of parole required to be imposed pursuant to subsectionl andNRS 213.1245, as a condition of releasing on parole a prisoner who was convicted of committing an offense listed in subsection t;Jt 6 against a child under the age of 14 years, the Board shall, when appropriate: .

.. ... .. •'S.!.f·'.0

•

0

Case 2:08-cv-00822-JCM-PAL Document 142-1 Filed 02/07/13 Page 29 of 34
-23(a) Require the parolee to participate m psychological counseling . H (b) Prohibit the parolee from being alone with a child unless another adult who has never been convicted of a sexual offense is present. fj-arul (e) Prohibit the parolee from beiag on or aear the grounds of any plaee tllat is primarily designed for ase by or for children, inelmling, without limitation, a p:rblie or private sffiool, a eenter or faeility that provides day eare sen·iees, a video areade anEkffi-amusemeRt park.]
W ·6. The provisions of fsubseetionj subsections 1 and 5
apply to a prisoner who was convicted of: (a) Sexual assault pursuant to paragraph (c) of subsection 3 of
NRS 200.366; (b) Abuse or neglect of a child pursuant to subparagraph (1) of
paragraph (a) of subsection 1 or subparagraph (1) of paragraph (a) of subsection 2 ofNRS 200.508;
(c) An offense punishable pursuant to subsection 2 of NRS 200.750;
(d) Solicitation of a minor to engage in acts constituting the infamous crime against nature pursuant to subparagraph (I) of paragraph (a) of subsection I ofNRS 201.195;
(e) Lewdness with a child pursuant to NRS 20 1.230; (f) Luring a child or mentally ill person pursuant to NRS 201.560, ifpunished as a felony; or (g) Any combination of the crimes listed in paragraphs (a) to (f), inclusive. Sec. 10.5. NRS 213.130 is hereby amended to read as follows: 213.130 1. The Department of Corrections shall: (a) Determine when a prisoner sentenced to .imprisonment in the state prison is eligible to be considered for parole; (b) NotifY the State Board of Parole Commissioners of the eligibility of the prisoner to be considered for parole; and (c) Before a meeting to consider the prisoner for parole, compile and provide to the Board data that will assist the Board in determining whether parole should be granted. 2. If a prisoner is being considered for parole from a sentence imposed for conviction of a crime which involved the use of force or violence against a victim and which resulted in bodily harm to a victim and if original or duplicate photographs that depict the injuries of the victim or the scene of the crime were admitted at the trial of the prisoner or were part of the report of the presentence investigation and are reasonably available, a representative sample of such photographs must be included with the information
...·.m ......-.·.....

Case 2:08-cv-00822-JCM-PAL Document 142-1 Filed 02/07/13 Page 30 of 34
-24submitted to the Board at the meeting. A prisoner may not bring a cause of action against the . State of Nevada, its political subdivisions, agencies, boards, conunissions, departments, officers or employees for any action that is taken pursuant to this subsection or for failing to take any action pursuant to this subsection, including, without limitation, failing to include photographs or including only certain photographs. As used in this subsection, "photograph" includes any video, digital or other photographic image.
3. Meetings to consider prisoners for parole may be held semiannually or more often, on such dates as may be fixed by the Board. All meetings are quasi-judicial and must be open to the public. No rights other than those conferred pursuant to this section or pursuant to specific statute concerning meetings to consider prisoners for parole are aMi/able to any person with respect to such meetings.
4. Not later than 5 days after the date on which the Board fixes the date of the meeting to consider a prisoner for parole, the Board shall notify the victim of the prisoner who is being considered for parole of the date of the meeting and of his rights pursuant to this subsection, if the victim has requested notification in writing and has provided his current address or if the victim's current address is otherwise known by the Board. The victim of a prisoner being considered for parole may submit documents to the Board and may testify at the meeting held to consider the prisoner for parole. A prisoner must not be considered for parole until the Board has notified any victim of his rights pursuant to this subsection and he is given the opportunity to exercise those rights. If a current address is not provided to or otherwise known by the Board, the Board must not be held responsible if such notification is not received by the victim.
5. The Board may deliberate in private after a public meeting held to consider a prisoner for parole.
6. The Board of State Prison Commissioners shall provide suitable and convenient rooms or space for use of the Board.
7. If a victim is notified of a meeting to consider a prisoner for parole pursuant to subsection 4, the Board shall, upon making a final decision concerning the parole of the prisoner, notify the victim of its final decision.
8. All personal infonnation, including, but not limited to, a current or former address, which pertains to a victim and which is received by the Board pursuant to this section is confidential.
...'.&..I.'·.....

Case 2:08-cv-00822-JCM-PAL Document 142-1 Filed 02/07/13 Page 31 of 34
-25-
9. The Board must not deny parole to ft prisoner unless the prisoner has been given reasonable notice of the meeting and the opportunity to be present at the meeting. If the Board fails to provide notice of the meeting to the prisoner or to provide the prisoner with an opportunity to be presen(and determines that it may deny parole, the Board may reschedule the meeting.
10. During a meeting to consider a prisoner for parole, the Board shall allow the prisoner:
(a) At his own expense, to have a representatil•e present with whom he may confer; aml
(b) To speak on his own behalf or to have his representative speak on his behalf.
11. . Upon making a final decision conceming the parole of the prisone1; the Board shall provide written notice to the prisoner of its decision not later than 10 working days after the meeting
and, ifparole is denied, specific recommendations of the Board to
improve the possibility of granting parole the next time the
prisoner is consideredfor parole, if any.
12. For the purposes of this section, "victim" has the meaning ascribed to it in NRS 213.005.
Sec. 11. Section 26 of Assembly Bill No. 579 of this session is hereby amended to read as follows:
Sec. 26. When an offender convicted of a crime against a child or a sex offender registers with a local law enforcement agency as required pursuant to NRS 179D.460 or 179D.480 or section 27 of this act, or updates his registration as required pursuant to section 28 ofthis act:
1. The offender or sex offender shall provide the local law enforcement agency with the following:
(a) The name of the offender or sex offender and all aliases that he has used or under which he has been known;
(b) The social security number of the offender or sex offender;
(c) The address ofany residence or location at which the offender or sex offender resides or will reside;
(d) The name ami address of any place where the offender or sex offender is a worker or will be a worker;
(e) The name and address of any place where the offender or sex offender is a student or will be a student;
(f) The license plate number and a description of all motor vehicles registered to or frequently dril•en by the· offender or sex offender; ahd
(g) Any other information required by federal law.
.•.'..1.....I·....•

Case 2:08-cv-00822-JCM-PAL Document 142-1 Filed 02/07/13 Page 32 of 34

-26-

2. If the offender or sex offender has not previously

provided a biological specimen pursuant to NRS I76.0913

or I76.09I6, the offender or sex offender shall provide a

biological specimen to the local law enforcement agency.

The local law enforcement agency shall provide the

specimen to the forensic laboratOIJ' that has been designated

by the county in which the offender or sex offender resides,

is present or is a worker or student to conduct or oversee

genetic marker testing for the county pursuant to

NRS I76.09I7.

3. The local law enforcement agency shall ensure that

the record of registration of the offender or sex offender

includes, without limitation:

(a) A complete physical description of the offender or

sex offender, a current photograph of the offender or sex

offender and the fingerprints and palm. prints of the

offender or sex offender;

.

(b) The text of the provision of law defining each

offense for which the offender or sex offender is required to

register;

(c) The criminal histOJ)' of the offender or sex offender,

including, without limitation:

(I) The dates of all arrests and com•ictions of the

offender or sex offender;

(2) The status of parole, probation or supe!Tised

release ofthe offender or sex offender;

(3) The status ofthe registration of the offender or sex

offender; and

(4) The existence of any outstanding arrest wanants

for the offender or sex offender;

(d) A report of the analysis ofthe genetic markers ofthe

specimen obtainedfi·om the offender or sex offender;

(e) The identification number fi·om a driver's license or

an identification card issued to the offender or sex offender

by this State or any other jurisdiction and a photocopy of

such driver's license or identification card; ami

(f) Any other information required by federal law.

Sec. 12. Section 27 of Assembly Bill No. 579 of this session is

hereby amended to read as follows:

Sec. 27. I. In addition to any other registration that

is required pursuant to NRS 179D. 010 to I79D.550,

inclusive, and sections I6 to 30, inclusive, of this act, each

offender or sex offender who, on or after October I, 2007, is

...·..r..~..··..... ~

Case 2:08-cv-00822-JCM-PAL Document 142-1 Filed 02/07/13 Page 33 of 34
-27-
or has been convicted of11 crime against a child or 11 sexual offense shall register initially with the appropriate local law enforcement agency of the jurisdiction in which the offender or sex offender was convicted pursuant to the provisions ofthis section.
2. An offender or sex offender shall initially register with a local law enforcement agency as required pursuant to subsection 1:
(a) If the offender or sex offender is sentenced to a tenn of imprisonment for the crime, before being released from incarceration or cmtfinementfor the crime; and
(b) If the offender or sex offender is not sentenced to a term of imprisonment for the crime, not later. than 3 business days after the date on which the offender or sex offender was sentencedfor the crime. Sec. 13. 1. There is hereby appropriated from the State General Fund to the State Motor Pool for the Fiscal Year 2007-2008 the sum of $30,112 for the purchase of two motor pool vehicles to be used by the staff employed by the Division of Parole and Probation of the Department of Public Safety for the purpose of carrying out the provisions of this act. 2. Any remaining balance of the appropriation made by subsection I must not be committed for expenditure after June 30, 2008, by the entity to which the appropriation is made or any entity to which money from the appropriation is granted or otherwise transferred in any manner, and any portion of the appropriated money remaining must not be spent for any purpose after September 19, 2008, by either the entify to which the money was appropriated or the entity to which the money was subsequently granted or transferred, and must be reverted to the State General Fund on or before September 19, 2008. Sec. 14. 1. There is hereby appropriated from the State General Fund to the Division of Parole and Probation of the Department of Public Safety for the purpose of canying out the provisions of this act the sums of: For the Fiscal Year 2007-2008 ................................... $587,115 For the Fiscal Year 2008-2009 ................................... $245,567 2. Any balance of the sums appropriated by subsection 1 remaining at the end of the respective fiscal years must not be committed for expenditure after June 30 of the respective fiscal years by the entity to which the appropriation is made or any entity to which money from the appropriation is granted or otherwise transferred in any manner, and any portion of the appropriated
...·.~..··..... •••

Case 2:08-cv-00822-JCM-PAL Document 142-1 Filed 02/07/13 Page 34 of 34

-28-

SeatSmonieetodphpnwteteeermhmmytiuhcbbsheereterrembt1nh1ea9te9im,t,2yrmem02vt0ogo0e8n0rw,te8emay,hdniucdaswhnttoSdateshnpteShotseeetmumpbtoSbbesnteemeaerqtybeus1eepw8rGne,a2tne1ls0tyn80ae, p9rfgoap2,rlr0raroe0nFps9tapuern,idenyacdrtteeoisdvpropeuneolrtycrpFt.ooitavhrsneeeslbfyeee,nanffoteitbrdteeyy,r

Sec. 15. not apply to
related to the

The provisions of subsection 1 of NRS 354.599 any additional expenses of a local govemment that provisions of sections 4, 6 and 11 of this act.

do are

Sec. 16. The amendatmy provisions of:

.

I. Section 2 of this probation or a suspension 2007.

act apply of sentence

to a person before, on or

who after

is granted October 1,

2. Section 8 of program of lifetime and

this act apply to a person supervision before, on or

who after

is placed under a October 1, 2007;

3. Sections 9 and 10 of this act apply to a person released on parole before, on or after October 1, 2007.

who

is

eaasnptdpaSrboaelpvcis.aphlr.i1on7vSg.aelacntfIioyo.rnftohTr1em0h.ips5smnsoepefccoettsihseoissnaorabfyceattcdoobomepcctaeionsnmgyeefrofsueulcetetfsitf.vheaeecntpudivrpoeroevnguispupioloaansntsisoapngoasesfstaaahnngaddet section and on October 1, 2007, for all other purposes.

2. 2007.

Sections 13 and 14 of this act become effective on July 1,

3. Sections I to 10, inclusive, effective on October I, 2007.

15

and

16

of this

act

become

4. Sections 11 and October 1, 2007, only if becomes effective.

12 of this act become effective on Assembly Bill No. 579 of this session

5. 2008.

Sections 5 and 6 of this act expire by limitation on June 30,

20 - - 07

.. ...·.m ......··...

 
 FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

THE AMERICAN CIVIL LIBERTIES



UNION OF NEVADA; DOES 1-8, and

Does A-S,

Plaintiffs-Appellees,

v.

CATHERINE CORTEZ MASTO,

Esquire, Attorney General of the

State of Nevada; G ERALD HAFEN,

Director of the Nevada

Department of Public Safety;

BERNARD W. C URTIS, Chief, Parole

and Probation Division of the Nevada Department of Public



Safety; CAPTAIN P.K. O’N EILL,

Chief, Records and Technology

Division of the Nevada

Department of Public Safety,

Defendants-Appellants,

and

MICHAEL HALEY, Sheriff of the

Washoe County Sheriff’s Office;

MICHAEL POEHLMAN, Chief of the

Reno Police Department; R ICHARD

GAMMICK, District Attorney of

Washoe County;



1499

1500

ACLU v. M ASTO

 DOUGLAS GILLESPIE, Sheriff of the
Las Vegas Metropolitan Police Department; JOSEPH FORTI, Chief
 of the North Las Vegas Police
Department; DAVID ROGER, District Attorney of Clark County; RICHARD PERKINS, Chief, Henderson Police Department,
 Defendants.

No. 08-17471
D.C. No. 2:08-cv-00822-
JCM-PAL

THE AMERICAN CIVIL LIBERTIES



UNION OF NEVADA; DOES 1-8, and

Does A-S,

Plaintiffs-Appellees,

v.

CATHERINE CORTEZ MASTO,

Esquire, Attorney General of the

State of Nevada; G ERALD HAFEN,

Director of the Nevada Department of Public Safety;



BERNARD W. C URTIS, Chief, Parole

and Probation Division of the

Nevada Department of Public

Safety; CAPTAIN P.K. O’N EILL,

Chief, Records and Technology

Division of the Nevada

Department of Public Safety,

Defendants-Appellants,

and



ACLU v. M ASTO

1501

MICHAEL HALEY, Sheriff of the



Washoe County Sheriff’s Office;

MICHAEL POEHLMAN, Chief of the

Reno Police Department; R ICHARD

GAMMICK, District Attorney of

Washoe County; D OUGLAS

 GILLESPIE, Sheriff of the Las Vegas
Metropolitan Police Department;

JOSEPH FORTI, Chief of the North

Las Vegas Police Department;

DAVID ROGER, District Attorney of

Clark County; R ICHARD PERKINS,

Chief, Henderson Police

Department,

 Defendants.

No. 09-16008
D.C. No. 2:08-cv-00822-
JCM-PAL
OPINION

Appeal from the United States District Court for the District of Nevada
James C. Mahan, District Judge, Presiding
Argued and Submitted December 7, 2011—San Francisco, California
Filed February 10, 2012
Before: Stephen S. Trott and Carlos T. Bea, Circuit Judges, and William H. Stafford, Senior District Judge.*
Opinion by Judge Trott

*The Honorable William H. Stafford, Jr., Senior District Judge for the U.S. District Court for Northern Florida, sitting by designation.

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COUNSEL
Margaret A. McLetchie, ACLU of Nevada, Las Vegas, Nevada; and Robert Langford, Langford & Associates, Las Vegas, Nevada, for the plaintiffs-appellees.
Binu G. Palal, Nevada Attorney General’s Office, Las Vegas, Nevada, for the defendants-appellants.

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TROTT, Circuit Judge:

The State of Nevada appeals the district court’s permanent injunction prohibiting the retroactive application of two Nevada laws: Assembly Bill 579, expanding the scope of sex offender registration and notification requirements, and Senate Bill 471, imposing, inter alia, residency and movement restrictions on certain sex offenders. The district court permanently enjoined retroactive application of both bills on the grounds that they violated the Ex Post Facto Clause of the United States Constitution, the Contract Clause of the United States Constitution, the Double Jeopardy Clause of the Fifth Amendment, and the Due Process Clause of the Fourteenth Amendment. With respect to Assembly Bill 579, we hold that its retroactive application is constitutionally sound, and we reverse. With respect to Senate Bill 471, we conclude that our consideration of its disputed provisions was mooted by the State of Nevada’s authoritative judicial admission that — regardless of the existence of the injunction — the State will not retroactively impose residency and movement restrictions. Because the State’s concession moots its own appeal, we remand to the district court to consider vacating its Order as to Senate Bill 471 in favor of a binding consent decree. But if no consent decree can be negotiated, our dismissal of the State’s appeal will leave the district court’s injunction in vigor.

I

BACKGROUND

In July 2007, the State of Nevada passed into law two statutes (“Revised Laws”) imposing various requirements on individuals convicted of sexual offenses, Assembly Bill 579 (“AB 579”) and Senate Bill 471 ( “SB 471”).

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Nevada’s AB 579 is best understood against the backdrop

of the federal Sex Offender Registration and Notification Act

(“SORNA”), enacted as a section of the Adam Walsh Child

Protection and Safety Act of 2006 ( “Adam Walsh Act”). Pub.

L. No. 109-248 (2006). SORNA encourages state govern-

ments, U.S. territories, and federally recognized Indian tribes

to adopt a standardized sex offender registration and notifica-

tion regime. 42 U.S.C. § 16912. It prescribes detailed registra-

tion and notification requirements to be adopted by each

jurisdiction. To encourage implementation of the scheme,

SORNA reduces federal law enforcement funds to jurisdic-

tions that fail to adopt it, id. § 16925, and authorizes dispensa-

tion of grants to offset the cost of implementation,

id.

§ 16926. SORNA also created the “Office of Sex Offender

Sentencing, Monitoring, Apprehending, Registering, and

Tracking (“SMART Office”) within the Department of Jus-

tice. Id. § 16945. The SMART Office assists jurisdictions

with implementation of SORNA’s registration and notifica-

tion program and monitors compliance.

The State of Nevada passed AB 579 into law on June 13, 2007 to bring Nevada into compliance with SORNA. The law replaced Nevada’s existing registration requirements with the scheme laid out in SORNA. The central innovation of SORNA and AB 579 is a classification system for sex offenders that places them into one of three risk tiers based solely on their crime of conviction. Registration and notification requirements are then keyed to an offender’s tier classification. Largely using the language of SORNA, AB 579 also (1) expands the category of individuals required to register, (2) expands the time period during which sex offenders are subject to registration requirements, (3) requires sex offenders to register in person, and (4) obliges law enforcement actively to provide notice of the status of certain registrants. The SMART Office determined that after passage of AB 579

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Nevada had “substantially implemented” SORNA requirements.1

AB 579 goes beyond SORNA in its requirement that law enforcement provide public notice of the status of certain sex offenders. For example, SORNA requires that an appropriate official provide notice of an individual’s sex offender status to “each school and public housing agency ” in the area where a sex offender resides. Id. § 16921(b)(2). Adding to this mandate, AB 579 requires law enforcement also to provide notification to youth organizations and religious organizations. AB 579 § 29(2). Additionally, for Tier III offenders (the most serious offenders), AB 579 obligates law enforcement to provide updated status information to “members of the public who are likely to encounter the offender. ” Id. § 29(2)(a)(4).

Nevada’s governor signed SB 471 into law the day after he signed AB 579, and the relevant provisions went into effect on October 1, 2007. In the provisions at issue in this action, SB 471 requires Nevada courts to include movement and residency restrictions in the term of probation, parole, or lifetime supervision imposed by a court upon individuals convicted of a sexual offense. 2 The law commands that sex offenders placed on lifetime supervision may not “knowingly be within 500 feet of any place ” or reside anywhere “located within 1,000 feet of any place” that is “designed primarily for use by or for children. ” SB 471 §§ 8(3), (4). Depending on their crime of conviction, parolees and probationers who are Tier III offenders are subject also to the movement restriction and/or the residency restriction. See id. §§ 2(1)(m), (2)(a)

1See Press Release, Department of Justice, Justice Department Announces Four More Jurisdictions Implement Sex Offender Registration and Notification Act (May 12, 2011), available at http://www.ojp. usdoj.gov/newsroom/pressreleases/2011/SMART11102.htm.
2Lifetime supervision is a special sentence imposed by a court on every defendant “convicted of a sexual offense. ” Nev. Rev. Stat. § 176.0931(1). Lifetime supervision commences after any period of probation or parole. Id. § 176.0931(2).

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(pertaining to probation and suspended sentences);

id.

§§ 9(1)(k)(1), 10(1)(a) (pertaining to parole). Although SB

471 contains several other provisions, Plaintiffs’ Amended

Complaint challenged only the provisions of SB 471 impos-

ing movement and residency restrictions and our decision is

limited to those requirements. 3

The American Civil Liberties Union of Nevada ( “ACLU”), together with several unnamed Does, all individuals convicted of sexual offenses (together, “Plaintiffs”), brought a civil action challenging both facially and as applied the retroactive application of AB 579 and SB 471. They alleged that retroactive application of the new laws would violate a litany of state and federal constitutional provisions, and they requested declarative and injunctive relief. The complaint named as defendants Nevada’s Attorney General, several officials in Nevada’s Department of Public Safety (responsible for Nevada’s parole and probation services), and various local law enforcement officials, all in their official capacity.

On June 30, 2008, United States District Court Judge James C. Mahan, ruling from the bench, granted a preliminary injunction against retroactive application of both laws. After the court issued the preliminary injunction, Plaintiffs agreed to a stipulation with the local law enforcement defendants that dismissed them from the case. The stipulation specified that the dismissal was premised on the condition that the dismissed defendants would abide by the preliminary injunction and “any other injunction or declarative relief granted ” by the court.

3In their reply brief to the district court, Plaintiffs did request relief from retroactive application of the provisions of SB 471 authorizing collection of biological samples and electronic monitoring of sex offenders. See SB 471 §§ 2, 8, 10. Plaintiffs never amended their complaint to include this cause of action, and the district court was explicit that the injunction did not extend to electronic monitoring. A challenge to those provisions— or any of the provisions of SB 471 other than its residency and movement restrictions — is not before us.

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On September 10, 2008, Judge Mahan issued a permanent injunction and ordered the Plaintiffs to draft an order granting the injunction. On October 7th, Judge Mahan signed the Plaintiffs’ order, which enjoined retroactive application of both laws on the federal constitutional grounds that their application to offenders convicted before the dates the two laws became effective was a violation of procedural due process, the Ex Post Facto Clause and the Double Jeopardy Clause. The only discernable reasoning articulated by the court for its decision, under the pressure of an expedited schedule, was that

It is as though the legislature passes a law that says anyone who is ever convicted of burglary must now serve an additional five years in prison no matter when he or she was convicted regardless of the fact that they’ve been law-abiding citizens since their release from prison. That’s not fair.

The court also relied on “the Contracts clauses of the U.S. and Nevada Constitutions,” but it did so without analysis or explanation. The remaining defendants (together “the State” or “Nevada”) now appeal that decision (Appeal No. 08-17471).

After issuing the permanent injunction, the district court awarded Plaintiffs $145,823.50 in attorneys’ fees as the prevailing party under 42 U.S.C. § 1988(b). The State did not appeal the award of attorneys’ fees, but instead it moved the court to stay the payment pending their appeal on the merits pursuant to Federal Rule of Civil Procedure 62(d). The court denied the State’s request for a stay, prompting the State to file an appeal of that order (Appeal No. 09-16008), which was consolidated with the State’s appeal of the permanent injunction.

II JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction under 28 U.S.C. § 1291. The district court’s grant of injunctive relief “involves factual, legal, and

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discretionary components.” Walters v. Reno , 145 F.3d 1032, 1047 (9th Cir. 1998). We review the district court’s legal conclusions de novo, its factual findings for clear error, and the scope of relief for abuse of discretion. Id. The district court’s decision to grant or deny a stay is reviewed for abuse of discretion. In re Combined Metals Reduction Co. , 557 F.2d 179, 193 (9th Cir. 1977).

III

ANALYSIS

A. Assembly Bill 579

1. Ex Post Facto and Double Jeopardy Clause

[1] The Ex Post Facto Clause of the Constitution prohibits our state and federal governments from retroactively imposing additional punishment for commission of a criminal offense. U.S. Const. art. I, §§ 9, cl. 3. The Double Jeopardy Clause similarly prohibits subjecting a person to jeopardy of multiple punishments for the same criminal act. U.S. Const. amend. V. Under both constitutional clauses, courts apply the identical two-step test to determine whether a newly enacted legislative scheme constitutes an additional form of punishment. Russell v. Gregoire, 124 F.3d 1079, 1086 n.6 (9th Cir. 1997) (holding that Double Jeopardy Clause determination is analogous to Ex Post Facto Clause determination); see Hatton v. Bonner, 356 F.3d 955, 961 (9th Cir. 2004).

[2] The first step of the inquiry requires courts to determine whether the legislature intended to impose a criminal punishment or whether its intent was to enact a nonpunitive regulatory scheme. Smith v. Doe , 538 U.S. 84, 92 (2003) . If the legislature did intend to impose a criminal punishment, that is the end of the inquiry — the law may not be applied retroactively. Id. However, if the legislature’s intent was to create a civil regulatory regime, we must move to the second

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step of the inquiry. There, the issue is whether the law is “so punitive either in purpose or effect as to negate the State’s intention to deem it civil. ” Id. (internal quotation marks and alteration omitted).

The Supreme Court held in Smith v. Doe that Alaska’s sex offender registration and notification scheme did not constitute unconstitutional retroactive punishment. Id. at 105-06. Following the Court’s guidance in Smith, we upheld the retroactive application of a California sex offender registration statute, which contained several provisions that differ from the Alaska statute , Hatton, 356 F.3d at 967, and we follow that guidance here.

In Hatton, the state law we upheld was not enacted pursuant to SORNA and we have not explicitly ruled on the constitutionality of retroactive application of SORNA-inspired requirements. Many of our sister circuits, however, have considered this issue. Unanimously they have concluded that retroactive imposition of SORNA requirements is constitutional.4 Because Nevada’s version of SORNA does not contain any registration provision that materially distinguishes it from Smith, we join them in concluding that the requirements of AB 579 do not constitute retroactive punishment in violation of the Ex Post Facto Clause or Double Jeopardy Clause.

a. Legislative Intent

The first inquiry is whether the legislature “ ‘indicated either expressly or impliedly a preference for one label or another’ ” — that is, civil or criminal. Smith, 538 U.S. at 93 (quoting Hudson v. United States , 522 U.S. 93, 99 (1997)).

4United States v. W.B.H, ___ F.3d ___, 2011 WL 6156956, at *11 (11th Cir. Dec. 13, 2011); United States v. Leach , 639 F.3d 769, 773 (7th Cir. 2011); United States v. Young , 585 F.3d 199, 206 (5th Cir. 2009) (per curiam); United States v. May , 535 F.3d 912, 919 (8th Cir. 2008); United States v. Hinckley , 550 F.3d 926, 939 (10th Cir. 2008).

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This issue is “one of statutory construction,” Seling v. Young, 531 U.S. 250, 261 (2001), that looks to the “statute’s text and its structure to determine the legislative objective,” Smith, 538 U.S. at 92. We review this question of statutory interpretation de novo. Ileto v. Glock, Inc. , 565 F.3d 1126, 1131 (9th Cir. 2009).

[3] The Legislative Counsel’s Digest prefacing AB 579 states that its purpose is to further the public safety goals of the federal Adam Walsh Act. AB 579, 1; see also Nevadans for Prot. Prop. Rights, Inc. v. Heller , 141 P.3d 1235, 1246 (Nev. 2006) (relying upon the Legislative Counsel’s Digest to determine legislative intent). The preface explains that AB 579 was enacted “[i]n furtherance of [the] purpose ” of the Adam Walsh Act, which it recognizes was to “protect the public by establishing a comprehensive national system for the registration of sex offenders . . . . ” AB 579, 1. The preface’s characterization of the United States Congress’s intent in passing SORNA is apt. SORNA states on its face that its purpose is to “protect the public from sex offenders and offenders against children.” 42 U.S.C. § 16901. Congress was motivated by the desire to close gaps in jurisdictions’ sex offender registries left open after earlier federal efforts to encourage uniform national registration requirements. See United States v. Begay , 622 F.3d 1187, 1190 (9th Cir. 2010), cert. denied, ___ U.S. ___, 131 S. Ct. 3026 (2011).

The regulatory explanation of purpose on the face of AB 579 is substantiated by its legislative history and the structure of the bill. The bill was drafted by the Office of the Attorney General with the express objective of bringing Nevada into compliance with SORNA. The bill adopts the registration and notification program detailed in SORNA, and each of the provisions challenged by Plaintiffs closely tracks the provisions of SORNA. In sum, the text and structure of AB 579 evinces the Nevada legislature’s intent to adopt a civil regulatory regime in alignment with the public safety rationale that moti-

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vated the United States Congress to pass the federal Adam Walsh Act.

Plaintiffs’ arguments do not undermine this clear evidence of legislative intent. It is true that AB 579’s statutory changes are codified under the section of Nevada state code titled “Procedure in Criminal Cases. ” The manner of codification can be indicative of the legislature’s intent to deem a law civil or criminal. See Hatton, 356 F.3d at 962. The Supreme Court has made clear, however, that the “location and labels of a statutory provision” are not dispositive indicia of legislative intent and must be considered in context. Smith, 538 U.S. at 94.

In this case, the placement of the codification of AB 579 is not illuminating evidence of legislative intent because it amends the sex offender registration scheme previously codified under Nevada’s criminal code. The Nevada Supreme Court had previously held that those antecedent registration and notification requirements “were not intended to impose a penal consequence but were instead implemented to protect the community and assist law enforcement in solving crimes.” Nollette v. State , 46 P.3d 87, 91-92 (Nev. 2002) . Thus, AB 579 amounts to an expansion of a registration and notification regime that the Nevada Supreme Court has already determined is civil in intent, despite its site of codification. See Hatton, 356 F.3d at 962 (relying on state court interpretation of legislative intent). There is no indication that the intent of the Nevada legislature was to transform the antecedent public safety oriented system into a form of punishment simply through expanding the scope of its requirements. Though many of the AB 579 requirements “relate to criminal administration” because they are administered as conditions imposed upon an offender’s release from prison, “they are not in themselves punitive.” Smith 538 U.S. at 95.

Plaintiffs also point to the fact that AB 579 mandates registration procedures rather than delegating responsibility for

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their creation to an administrative agency, as did the Alaska law at issue in Smith. See id. at 96. AB 579’s detailed requirements for categorizing sex offender status and maintaining a registry, however, remain wholly unlike the procedural “safeguards associated with the criminal process. ” Id. Nevada adopted nearly wholesale a regulatory scheme drafted by Congress — there was little left to delegate. The inclusion in AB 579 of a criminal penalty for failure to comply with registration requirements does not distinguish it from the law at issue in Smith, which also criminalized non-compliance. Id.

[4] We conclude that the intent of the Nevada legislature in passing AB 579 was to create a civil regulatory regime with the purpose of enhancing public safety.

b. Punitive Effect

We turn to the second inquiry: “[W]hether the statutory scheme is so punitive either in purpose or effect as to negate the State’s intention to deem it civil.” Id. at 92 (internal quotation marks and alteration omitted). In conducting this inquiry, “only the clearest proof ” of punitive effect is sufficient to override the Nevada legislature’s intent to create a civil regulation. Id. (internal quotation marks omitted). Given this high burden, “even a showing that most of the relevant factors weigh in favor of considering a punishment criminal in nature may be insufficient to transform it into a criminal punishment.” United States v. Reveles, 660 F.3d 1138, 1143 (9th Cir. 2011). With all respect to the district court, we reject its analogy of these statutes to returning a burglar to prison for five years after the service of his sentence.

The Smith Court turned to the factors laid out in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69 (1963), as a “useful framework” for evaluating punitive effect. Smith, 538 U.S. at 97. The Court focused on five of the Mendoza-Martinez factors as most relevant in evaluating the registration and notification law at issue. Those five factors are the degree to

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which the regulatory scheme imposes a sanction that (1) has historically been regarded as punishment; (2) constitutes an affirmative disability or restraint; (3) promotes the traditional aims of punishment; (4) is rationally connected to a nonpunitive purpose; and (5) is excessive in relation to the identified nonpunitive purpose. Id. The Court also addressed the two remaining Mendoza-Martinez factors, but concluded that they were of “little weight” in the context of sex offender registration legislation. Id. at 105. Those factors are (6) whether the sanction requires a finding of scienter and (7) whether the sanction applies to behavior that is already a crime. Id. We evaluate each of these factors in turn.

i Historical Form of Punishment

Smith rejected analogies between sex offender registration requirements and “shaming punishments of the colonial period.” Id. at 97. Historical shaming punishments were intended to expose and publicly disgrace individuals, while sex offender registration laws disseminate accurate information about offenders for public safety purposes. Id. at 97-99. While modern notification provisions may humiliate offenders, that shame is “but a collateral consequence of a valid regulation. ” Id. at 99.

Plaintiffs attempt to distinguish Smith on the grounds that, unlike the Alaska law at issue there, AB 579 requires law enforcement agencies actively to provide notice of an individual’s sex-offender status in many instances. See AB 579 § 29(2). We have previously held that a state law which included a provision requiring government agencies actively to notify the public of certain individuals’ sex-offender status was not so punitive in effect that it violated the Ex Post Facto Clause. Russell, 124 F.3d at 1082, 1091-92. That logic remains sound in the wake of Smith. Active dissemination of an individual’s sex offender status does not alter the Court’s core reasoning that “stigma . . . results not from public display for ridicule and shaming but from the dissemination of accu-

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rate information about a criminal record, most of which is already public.” Smith, 538 U.S. at 98. Though “humiliation increas[es] in proportion to the extent of the publicity, ” the “purpose and the principal effect of notification are to inform the public for its own safety. ” Id. at 99.

AB 579 also vests responsibility for disseminating information to local law enforcement agencies, § 29(2), and strengthens penalties for use of information from the community notification website to commit a crime, § 10.5. Both of these provisions further indicate the law is intended to disseminate information for public safety purposes and not to punish registrants. On the whole, the requirements of AB 579 are not akin to historical forms of punishment.

ii Affirmative Disability or Restraint

Under this factor, “we inquire how the effects of [AB 579] are felt by those subject to it. ” Smith, 538 U.S. at 99-100. The “paradigmatic affirmative disability ” is the “punishment of imprisonment.” Id. at 100. The Smith Court found that Alaska’s law imposed no physical restraint and therefore constituted a negligible affirmative disability. The Court reasoned that any negative consequences to registrants’ employment or housing prospects stemmed from the fact of conviction, rather than the existence of the registry. Id. at 101.

The registration and notification requirements of AB 579 are indistinguishable from those at issue in Smith. AB 579 imposes no physical restraint. See id. at 100. It does not limit the activities that registrants may pursue or limit registrants’ ability to change jobs or residences. See id. It is less onerous than occupational debarment, which the Court has held is not an affirmative disability. See id.

Plaintiffs focus on the fact that AB 579 requires registrants to appear in person to update their registration information. See AB 579 § 40. For the highest level offenders, this duty to

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appear is imposed “[n]ot less frequently than every 90 days. ” Id. § 40(c). Plaintiffs point out that in Smith, the Supreme Court reversed our holding that Alaska’s law imposed an affirmative disability, in part because we had mistakenly concluded that it required in-person registration. See Smith, 538 U.S. at 101. However, the Court’s resolution of our factual error did not amount to a holding that in person registration necessarily constitutes an affirmative disability. We recognized as much in Hatton, 356 F.3d at 964, where we held that the in-person registration requirement in a California law, when “balanced against the other facts . . . [was] simply not enough to turn [the law at issue] into an affirmative disability or restraint.”

We reach the same conclusion with respect to AB 579.

While recognizing the burden that the registration require-

ment places on many registrants, on balance the law does not

constitute an affirmative disability. “Appearing in person may

be more inconvenient, but requiring it is not punitive.

”

W.B.H., 2011 WL 6156956, at *8. The requirement that sex

offenders present themselves for fingerprinting is not akin to

imprisonment, and the burden remains less onerous than

occupational debarment. See Smith, 538 U.S. at 100.

iii Traditional Aims of Punishment

This factor requires evaluating whether the law promotes traditional aims of punishment — i.e., deterrence and retribution. Hatton, 356 F.3d at 965. The Smith Court acknowledged that registration laws might have a deterrent effect, but held that preventing recidivism is also a legitimate objective of civil regulation. Smith, 538 U.S. at 102. The Court rejected the argument that reporting requirements “measured by the extent of the wrongdoing, not by the extent of the risk posed, ” demonstrated retributive intent. Id. (internal quotation marks omitted). AB 579 is indistinguishable on this basis, and this factor does not tilt toward a finding of punitive effect.

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iv Rational Connection to a Nonpunitive Purpose

The Smith Court held that whether the challenged regulation is rationally connected to a nonpunitive purpose is “a most significant factor ” in the effects analysis. Id. at 102 (internal quotation marks and alteration omitted). The Court held that the interest in “alerting the public to the risk of sex offenders in their community ” constitutes a “legitimate nonpunitive purpose.” Id. at 102-103 (internal quotation marks and alteration omitted).

Plaintiffs argue that Smith overstated the risk of sexoffender recidivism. They note that Smith cited several studies on sex offender recidivism. See id. at 104. Plaintiffs then rely on an expert declaration critiquing the methodology of the recidivism studies in Smith. The district court did not make any factual finding regarding the risk of sex offender recidivism. Even had it adopted the declaration’s conclusions as its own, a recalibrated assessment of recidivism risk would not refute the legitimate public safety interest in monitoring sexoffender presence in the community.

v Excessive in Scope

In terms of the legislature’s tailoring of the law to the legitimate nonpunitive objective, the test is not “whether the legislature has made the best choice possible, ” but rather “whether the regulatory means chosen are reasonable in light of the nonpunitive objective.” Id. at 105. The Smith Court held that Alaska could “mak[e] reasonable categorical judgments that conviction of specified crimes should entail particular regulatory consequences.” Id. at 103. While AB 579 does expand the size of the class subject to regulation, the linking of conviction status to registration is a reasonable nonpunitive regulatory scheme under Smith. Id.

Plaintiffs’ argument that AB 579 is overbroad because it will force many non-dangerous offenders to register is

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squarely foreclosed by Smith. “The State’s determination to legislate with respect to convicted sex offenders as a class, rather than require individual determination of their dangerousness, does not make the statute a punishment under the Ex Post Facto Clause.” Id. at 104.

vi & vii Scienter and Application to Behavior Already Criminalized

The Smith Court concluded that two of the MendozaMartinez factors — scienter and application of the law to behavior which is already a crime — were of “little weight.” Id. at 105. These two factors do not distinguish AB 579 from the law at issue in Smith.

As in Smith, AB 579 imposes registration requirements only upon a criminal conviction, “a duty not predicated upon some present or repeated violation. ” Id. AB 579 exclusively applies to behavior that is already criminalized under Nevada law. However, as the Smith Court concluded, where “recidivism is the statutory concern,” application to behavior already criminalized is “a necessary beginning point. ” Id.

[5] Evaluating the Mendoza-Martinez factors together, we conclude that AB 579 is not so punitive in effect or purpose that it negates the Nevada legislature’s intent to enact a civil regulatory scheme. AB 579 does not differ from the law at issue in Smith in any fashion that alters the application of that precedent. Plaintiffs’ evidence and arguments do not approach the “clearest proof” of punitive purpose or effect required to establish a violation of the Ex Post Facto Clause or Double Jeopardy Clause.

2. Due Process

The district court also enjoined AB 579 as a violation of the Plaintiffs’ procedural due process rights under the Fourteenth Amendment. Whether the law would amount to a violation of

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procedural due process rights also requires a two-step inquiry: “the first asks whether there exists a liberty or property interest which has been interfered with by the State; the second examines whether the procedures attendant upon that deprivation were constitutionally sufficient. ” Ky. Dep’t of Corrs. v. Thompson, 490 U.S. 454, 460 (1989) (internal citations omitted).

Following this framework, the first question is whether Plaintiffs have a liberty interest in remaining free from the sex offender registration and notification requirements of AB 579. While stigma alone is inadequate to affect a liberty interest, stigma plus an alteration in legal status can encroach on a cognizable liberty interest. Paul v. Davis, 424 U.S. 693, 71112 (1976). We have previously held that prison inmates have a liberty interest at stake in the determination of their status as sex offenders. Neal v. Shimoda, 131 F.3d 818, 830 (9th Cir. 1997). In Neal, the liberty interest stemmed from the stigmatizing consequences of the sex offender label along with “the subjection of the targeted inmate to a mandatory treatment program whose successful completion is a precondition for parole eligibility.” Id.

[6] However, Smith v. Doe casts doubt on whether a registration and notification scheme based solely on the fact of a registrant’s conviction entails stigmatizing consequences. Smith acknowledged that the publication of an offender’s identity may cause embarrassment, but held that “these consequences flow not from the Act’s registration and dissemination provisions, but from the fact of conviction, already a matter of public record.” Smith, 538 U.S. at 101. We need not resolve this issue, however, “because even assuming, arguendo, that [Plaintiffs have] been deprived of a liberty interest, due process does not entitle [them] to a hearing. ” Conn. Dep’t of Pub. Safety v. Doe , 538 U.S. 1, 7 (2003).

Connecticut Department of Public Safety controls our consideration of whether AB 579 affords the Plaintiffs the pro-

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cess they are due . There, the Supreme Court held that sex offenders were not entitled to a hearing on their dangerousness under a Connecticut law that imposed registration requirements based solely on the fact of conviction. Id. The Court held that a hearing on an offender’s dangerousness was a “bootless exercise” given that “the law’s requirements turn on an offender’s conviction alone—a fact that a convicted offender has already had a procedurally safeguarded opportunity to contest.” Id. We have applied Connecticut Department of Public Safety in a due process challenge to Alaska’s sex offender law, holding that “[l]ike the Connecticut law, Alaska’s sex offender statute bases the registration and notification requirements on the sole fact of plaintiffs’ convictions. Accordingly, bound by Connecticut Department of Public Safety, we hold that Alaska’s sex offender registration law does not deprive the Does of procedural due process. ” Doe v. Tandeske, 361 F.3d 594, 596 (9th Cir. 2004) (per curiam) (holding that Alaska’s sex offender registration law does not violate procedural or substantive due process).

AB 579, like Connecticut and Alaska’s laws, imposes registration and notification requirements based solely on the fact of conviction. Plaintiffs, however, attempt to distinguish Connecticut Department of Public Safety and Tandeske on the ground that Plaintiffs are requesting a hearing to determine whether or not they were in fact convicted, a factor — unlike actual dangerousness — that is decidedly material under AB 579’s statutory scheme.

[7] Plaintiffs’ argument is unavailing because the fact of conviction is something “that a convicted offender has already had a procedurally safeguarded opportunity to contest. ” Connecticut Dep’t of Pub. Safety , 538 U.S. at 7. The Due Process Clause does not entitle an individual to a hearing unless there is “some factual dispute” that a hearing could serve to resolve. Codd v. Velger , 429 U.S. 624, 627 (1977) (per curiam). A hearing to ascertain each individual’s crime of conviction is a “bootless exercise,” Connecticut Dep’t of Pub. Safety , 538

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U.S. at 7, because Nevada sex offenders have already had the fact of their conviction established — with all of the constitutionally required procedural safeguards — through the criminal justice system. “[A]dequate procedural safeguards at the conviction stage are sufficient to obviate the need for any additional process at the registration stage. ” United States v. Juvenile Male, __ F.3d __, 2012 WL 206263, at *13 (9th Cir. 2012).

The cases cited by Plaintiffs do not support their claim because, unlike AB 579, they all involved statutory schemes which allowed the state to label an individual a sex offender even if they had never been convicted of a sexual offense. See Coleman v. Dretke , 395 F.3d 216, 223 n.30 (5th Cir. 2004) (holding that individual was entitled to a hearing because he had not had the “original procedurally safeguarded opportunity to contest” a conviction for a sex offense (internal quotation marks omitted)); State v. Robinson , 873 So. 2d 1205, 1216 n.8 (Fla. 2004) (“Unlike the defendant in Doe, Robinson was not convicted of a crime involving a sexual element or intent. Therefore, unlike that defendant, he did not have a meaningful opportunity to contest whether his offense was sexually related.”).

Plaintiffs do accurately note that AB 579 expands the definition of sex offender to include “[a]n offense that is determined to be sexually motivated pursuant to NRS 175.547 or 207.193.” AB 579 § 8(r). However, Nevada law requires nearly all of the fundamental protections of the criminal process before a finding of sexual motivation can be made. See Nev. Rev. Stat. §§ 175.547, 207.193 (requiring a judicial hearing, the opportunity to present evidence, a “beyond a reasonable doubt” standard of proof, and an on-the-recorddecision by the court). These procedural protections go well beyond the minimum requirements of due process. All that is potentially lacking is trial by jury, but a finding by a jury is not required before the state may label an individual a sex offender. Neal, 131 F.3d at 831 n.14 (Due Process Clause per-

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mits states to “flesh out” the “entity which should conduct [the] hearing” that classifies a prisoner as a sex offender); see also United States v. Sahhar , 917 F.2d 1197, 1203 n.6 (9th Cir. 1990) (due process does not require jury trial in civil commitment proceedings).

[8] Under AB 579, offenders are required to register as sex offenders only after they have been convicted of a sex offense or found as the result of a judicial hearing to have committed a sexually motivated crime, with all the attendant procedural protections guaranteed by Nevada’s criminal justice system. Because AB 579 imposes registration and notification requirements solely on the basis of a fact established with constitutionally adequate procedural protections, no additional hearing is required under the Due Process Clause. Tandeske, 361 F.3d at 596.

3. Contract Clause

At the conclusion of the September 10, 2008 hearing to determine whether a permanent injunction was appropriate, the court ordered the Plaintiffs to draft an order enjoining the law on the basis of the Ex Post Facto Clause, the Double Jeopardy Clause, the Equal Protection Clause, and the Due Process Clause. The Plaintiffs then drafted an order that without explanation includes a state and federal Contract Clause rationale not previously mentioned by the court. Moreover, the Order does not include any discernable legal rationale or explanation for the added Contract Clause grounds. The Clauses are mentioned in one sentence which simply appends them, without any findings of fact or specific conclusions of law, to a list of constitutional grounds justifying relief. Nevertheless, because the issue as presented is a matter of law, has been fully briefed, and the record is sufficient to do so, we proceed to a decision on this question.

[9] We begin with the ACLU’s concession that “[t]he Nevada Supreme Court has interpreted the State Constitu-

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tional Contracts Clause to be on a par with the U.S. Constitutional Contracts Clause,” citing Holloway v. Barrett, 87 Nev. 385, 392 (1971). Thus, we turn to Article 1, § 10 of the federal Constitution, which states, “No State shall . . . pass any . . . Law impairing the Obligation of Contracts. ”

U.S. Trust Co. v. New Jersey , 431 U.S. 1, 25 (1997), supplies the approach we use in making this determination with respect to public contracts. The factors are: (1) whether the state law has the effect of impairing a contractual obligation; (2) if so, whether that impairment is permitted under the Constitution. In connection with the second question, the Court observed that “it is not every modification of a contractual promise that impairs the obligation of contract under federal law.” U.S. Trust Co., 431 U.S. at 16 (quoting El Paso v. Simmons, 379 U.S. 497, 506-07 (1965)). U.S. Trust Co. also reiterated that a “State has the sovereign right to protect the general welfare of the people ” and “we must respect the wide discretion on the part of the legislature in determining what is and what is not necessary. ” Id. at 508-09 (internal quotation marks and alternations omitted). The Court also has said that the Contract Clause notwithstanding,

[T]he state also continues to possess authority to safeguard the vital interests of its people. It does not matter that legislation appropriate to that end has the result of modifying or abrogating contracts already in effect. Not only are existing laws read into contracts in order to fix obligations as between the parties, but the reservation of essential attributes of sovereign power is also read into contracts as a postulate of the legal order.

Home Bldg. & Loan Ass’n v. Blaisdell , 290 U.S. 398, 434-35 (1934) (internal citation omitted). Moreover, U.S. Trust Co. reminds us that “States must possess broad power to adopt general regulatory measures without being concerned that pri-

ACLU v. M ASTO

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vate contracts will be impaired, or even destroyed, as a result.” U.S. Trust Co. , 431 U.S. at 22.

[10] With this controlling backdrop in mind, we conclude at the threshold that AB 579 on its face does not perforce impair the plea bargain contracts of those who fall within its scope. As we have already held in our disposition of the Plaintiffs’ ex post facto, double jeopardy, and due process challenges, (1) the law is not punitive in intent, (2) it has no overriding punitive effect, (3) it is not the equivalent of historical punishment, (4) and it does not impose upon a registrant any significant affirmative disability or restraint. Moreover, AB 579 has a rational connection to a nonpunitive regulatory purpose and is not excessive in scope. Finally, the law respects the due process rights of those upon whom its requirements fall. Tandeske, 361 F.3d 596-97 (holding that Alaska’s sex offender registration law did not violate procedural or substantive due process).

Were we to conclude that AB 579 does impair plea bargain contracts, which we do not, we would nevertheless conclude that the impairment is permitted under the Constitution. We would do so for the same reasons previously articulated and because of the importance of this law to the protection of the general welfare of people in Nevada against sexually motivated crimes. Nevada’s police power to promote public safety is entitled to respect. A State’s law in this context is entitled to a presumption of constitutionality. Smith, 528 U.S. at 110 (Thomas, J., concurring).

However, we do note that in individual cases where the state has made an explicit promise to a defendant that the defendant would be exempt from registration as a condition of his guilty plea, that promise — whether memorialized in the terms of the written plea agreement or otherwise proven — is entitled to be enforced against the State. Santobello v. New York, 404 U.S. 257, 262 (1971) ( “[W]hen a plea rests in any significant degree on a promise or agreement of the pros-

1526

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ecutor, so that it can be said to be part of the inducement or
consideration, such promise must be fulfilled. ”); see also Buckley v. Terhune, 441 F.3d 688, 694 (9th Cir. 2006) (en banc5).

B. Senate Bill 471

Under Article III of the Constitution, federal “courts may adjudicate only actual, ongoing cases or controversies.” Lewis v. Cont’l Bank Corp. , 494 U.S. 472, 477 (1990). A live controversy requires an injury in fact, traceable to the defendant’s acts and redressable by a court decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561 (1992). The case or controversy must continue through all stages of federal judicial proceedings. United States v. Juvenile Male , ___ U.S. ___, 131 S. Ct. 2860, 2864 (2011) (per curiam). When the possibility of injury to the plaintiffs ceases, the case is rendered moot and we lack jurisdiction to decide it. Rosemere Neighborhood Ass’n v. EPA, 581 F.3d 1169, 1172-73 (9th Cir. 2009). Even if the parties do not raise mootness as an issue, “federal courts are required sua sponte to examine jurisdictional issues. ” B.C. v. Plumas Unified Sch. Dist. , 192 F.3d 1260, 1264 (9th Cir. 1999).

Under the unusual circumstances of this case, we conclude that the question of the constitutionality of retroactive application to Plaintiffs of the residency and movement restrictions of SB 471 may well have been mooted. The State’s candid and forthright admission during oral argument that, regardless

5In Doe v. Harris, 640 F.3d 972 (9th Cir. 2011), the Supreme Court of California accepted our request to decide whether “under California law, the default rule of contract interpretation is (a) that the law in effect at the time of a plea agreement binds the parties, or (b) that the terms of a plea agreement may be affected by changes in law. ” A decision by that court on this issue has not been rendered. We do note as a matter of Nevada state law that a condition of lifetime supervision as a consequence of pleading guilty to a qualifying crime cannot be imposed by a court unless a defendant so pleading is advised of this consequence. Palmer v. State , 118 Nev. 823 (2002).

ACLU v. M ASTO

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of the outcome of this case, the State does not intend to apply the contested provisions of SB 471 retroactively removes any threat that Plaintiffs or anyone similarly situated will be subject to any deleterious effect or injury from the statute.

Until oral argument, it remained an open question whether the relevant provisions of SB 471 could be applied retroactively. The confusion arose because the relevant provisions of SB 471 are ambiguous as to whether they are to be applied to those whose crimes were committed before October 1, 2007, the law’s effective date. For instance, SB 471 states that “if a defendant is convicted of a sexual offense and the court grants probation or suspends the sentence, the court shall ” impose the new residency and movement restrictions, depending on the classification of the offender, “as a condition of probation or suspension of a sentence. ” SB 471 § 2(1). But it is not clear whether these new conditions are to be applied retroactively to all offenders granted probation after October 1, 2007, regardless of when the defendant committed his offense, or only to those whose crimes were actually committed following the law’s effective date. By contrast, AB 579 is explicit that its registration requirements apply retroactively. For purposes of the registration requirements, a “sex offender” is “a person who, after July 1, 1956 , is or has been (a) convicted of a sexual offense . . . ” A.B. 579 § 20 (emphasis added).

A law applies “retroactively” for purposes of the Ex Post Facto Clause if it “changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed.” Collins v. Youngblood , 497 U.S. 37, 42 (1990) (quoting Calder v. Bull , 3 U.S. (3 Dall.) 386, 390 (1798)) (emphasis added; emphases in original removed). This is the sense in which we use “retroactive” and “retroactively,” regardless of the date when probation was granted or revised.

Before the district court, the State repeatedly maintained that it did not interpret the disputed sections of SB 471 as

1528

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applying retroactively. The State said, “Based upon the plain reading of the statutes at issue . . . they are prospective in application.” Plaintiffs, however, protested that they had “been unable to get clarity from the AG’s office on exactly which portions of SB 471 would be applied retroactively and which won’t.” They submitted communications with the Attorney General’s Office demonstrating that the State had shifted its position several times. The ACLU captured this state of uncertainty in a letter from Maggie McLetchie to Deputy Attorney General Binu Palal dated July 3, 2008:

As you know, the ACLU reached out to your offices in June, before filing suit, in the hopes of negotiating a temporary stay so that we could resolve those issues with the law where there is no question that the law is unconstitutional on its face, or being applied unconstitutionally. We also hoped that we could get some much needed clarity as to the State of Nevada’s interpretation of both AB579 and SB471. Unfortunately, your office was unwilling to consider any stipulated stay whatsoever and we had no choice but to research and file both a complaint and a motion for a temporary restraining order/preliminary injunction motion addressing a myriad of issues with the new sex offender laws.

While we are now in litigation, it is our hope that we can nonetheless work together to get some clarity as to the State of Nevada’s interpretation of the laws and how state agencies have planned to implement them. For example, if we could come to an agreement that SB 471 will not be applied retroactively, and to whom it will apply, that could greatly help streamline the very-expedited litigation we are now engaged in, and save the ACLU from expending unnecessary additional resources litigating that issue.

ACLU v. M ASTO

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Last Monday, June 30, I reached out to you in advance of the hearing to try to get an answer as to the Attorney General’s official position on whether SB471 would or would not apply SB471 [sic] retroactively. While initially you stated that “[t]he Office of Parole and Probation’s position is that the residency and movement requirements of SB 471 do not apply retroactively” and that “[your] representation of that office will reflect that position, ” you later retracted and indicated that your response was “premature” and that “[t]he AG’s Office has not issued a formal opinion on this.” I did not hear further from you, so I again reached out to you yesterday to get an answer on this issue but I have yet to receive any confirmation as to the Attorney General’s formal position.

. ...

So that we can resolve that confusion without expending any additional legal resources of either the ACLU or the taxpayer-funded budgets of the defendants, please provide confirmation as to the Attorney General’s position on SB471 no later than the close of business (5 p.m.) today. Please feel free to call me to discuss the matter. I look forward to hearing from you.

(emphasis added).

Mr. Palal’s timely answer the same day was, “At this time, the Office of the Attorney General has not taken a position as to the retroactivity of the numerous provisions contained in SB 471.”

Thirteen days later, on July 16, 2008, Mr. Palal wrote to Ms. McLetchie again, this time stating that, “It is the position of this office that the mechanism provided to employ the pro-

1530

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visions of SB 471 only allows for prospective application. Therefore, the position of this office is that the statutes stemming from SB 471 will be applied prospectively. ” However, the next day, Mr. Palal in another letter appeared to take a step back from this position, this time stating that the only provision of SB 471 that did not apply retroactively was its “requirements concerning residency within 1000 feet of a school or daycare facility. ”

All of this back and forth notwithstanding, the ACLU represented to the court in August 2008 that “Defendants have finally conceded that S.B. 471 cannot be applied retroactively,” and they dismissed certain claims because, “Now, . . . SB 471 will no longer be applied retroactively. ” However, the ACLU understandably asked for a formal court order to this effect citing inter alia 28 U.S.C. § 2201(a) regarding a binding declaration of rights.

In the district court, Plaintiffs introduced affidavits from several Doe plaintiffs, all of whom were convicted well before the law’s effective date, indicating that they had been notified by their parole officers that they would be required to comply with SB 471’s residency restrictions. The State did not introduce any contrary evidence and opposed discovery in the case. With the case in that posture, the district court appropriately recognized that the retroactive application of SB 471 was an unresolved justiciable controversy, Mr. Palal’s letter of July 16 notwithstanding. 6

In its briefing before us, the State maintains that SB 471’s residency and movement restrictions, as a matter of its interpretation of the statutory language, cannot apply retroactively. In its reply brief, for example, the State advised us that “lifetime supervision residency requirements, parole, and proba-

6The State never packaged its interpretation of SB 471 as an issue of justiciability. It made the argument in response to a vagueness challenge not at issue here.

ACLU v. M ASTO

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tion terms found in SB 471 all specifically call for a contemporaneous order from the [sentencing] court and cannot be employed retroactively. ” The State also represented that it had “throughout litigation maintained that SB 471, in its relevant pieces, is prospective and not retroactive. ” However, the State has not raised mootness as an issue.

During oral argument, the State acknowledged that Plaintiffs introduced evidence that Nevada probation and parole officers may have represented to probationers and parolees that SB 471 would apply retroactively to them. In a formal colloquy with the court, the State conceded that any attempt by state parole officers to apply the residency and movement restrictions retroactively was an error in State oversight and that in the future there was no possibility that the restrictions would be applied retroactively. The culmination of the exchange was the State’s response to the court’s question:

The court:

Well, would you agree to represent to this court that if the parole officers said that [Plaintiffs were required to comply with SB 471’s residency and movement conditions], the State in that event apologizes to clients of the ACLU and undertakes to never have that happen again?

The State: Absolutely.

Normally a state Attorney General’s interpretation of state law, advanced during the course of litigation, is not authoritative and would not be sufficient to moot a live case or controversy. See Stenberg v. Carhart, 530 U.S. 914, 940 (2000); see also Tahoe Reg’l Planning Agency v. McKay , 769 F.2d 534, 539 (9th Cir. 1985) (Nevada Attorney General’s interpretation of state law does not bind state courts). As recognized by the district court, a state Attorney General is generally free to advance an interpretation of a statute during litigation that a

1532

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subsequently appointed Attorney General may choose to disavow. And like any litigant, a state Attorney General may make a tactical choice to present two conflicting positions as an argument in the alternative.

[11] Nevada’s statement in this case, however, constitutes a binding judicial admission because the State went beyond a simple expression of its legal position regarding the interpretation of SB 471. The State represented, as a matter of law, that it had no authority under SB 471 to apply its movement and residency restrictions retroactively and that it will “absolutely” not do so in the future. See United States v. Wilmer , 799 F.2d 495, 502 (9th Cir. 1986) (representation at oral argument is judicial admission). A litigation position such as this conveyed to a court becomes binding in any forum in which the same controversy arises. New Hampshire v. Maine , 532 U.S. 742 (2001) (the doctrine of judicial estoppel prohibits a party from “changing positions according to the exigencies of the moment” (internal quotation marks omitted)); Helfand v. Gerson, 105 F.3d 530 (9th Cir. 1997) (a party taking a position in litigation precludes that party from later assuming an inconsistent position on the same issue). The State, like any party, is responsible for official representations that it makes to the court. United States v. Crawford , 372 F.3d 1048, 1055 (9th Cir. 2004) (en banc) ( “A judicial admission is binding before both trial and appellate courts. ”). The State’s judicial admission that the residency and movement restrictions of SB 471 “ought not [be] and are not ” being applied retroactively is therefore binding. This judicial admission appears to moot the issue that was argued before us: whether retroactive application of SB 471’s residency and movement restrictions could constitutionally be applied retroactively.

[12] In fine, the State’s clarification of its official position on this statute removes any potential of deleterious effect or injury to Plaintiffs and divests us of a live case or controversy. As Judge Wood said in United States v. Leach, 639 F.3d 769, 773 (7th Cir. 2011), “Because the law targets only the conduct

ACLU v. M ASTO

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undertaken by convicted sex offenders after its enactment, it does not violate the Ex Post Facto Clause. ” (citing Weaver v. Graham, 450 U.S. 24, 29 (1981)). We do note that the State limited its concession to the residency and movement restrictions of SB 471, saying that “Nevada, in interpreting its own laws, concluded that movement and residency restrictions contained SB 571 [sic] cannot be applied retroactively. ” We will hold the State to its categorical representation.

The “normal rule” when a case is mooted is that vacatur of the lower court decision is appropriate. Camreta v. Greene , __U.S.__, 131 S. Ct. 2020, 2035 (2011). That is the default approach because it “prevent[s] a judgment, unreviewable because of mootness, from spawning any legal consequences.” United States v. Munsingwear, Inc. , 340 U.S. 36, 41 (1950).

There is an exception to the Munsingwear rule, however, when the “party seeking relief from the judgment below caused the mootness by voluntary action. ” U.S. Bancorp Mortg. Co. v. Bonner Mall P’ship , 513 U.S. 18, 24 (1994); see also Ringsby Truck Lines, Inc. v. Western Conference of Teamsters, 686 F.2d 720, 722 (9th Cir. 1982) (recognizing exception to automatic vacatur “when the appellant has by his own act caused the dismissal of the appeal”). In U.S. Bancorp, the appellant had voluntarily mooted the issue on appeal through entering into a settlement. Id. at 20. The Supreme Court held that when appealing parties voluntarily forfeit their right to appeal and receive a decision on the merits, they also surrender their claim to “the equitable remedy of vacatur.” Id. at 25. In those circumstances, the court “ ‘may not consider [the] merits, but may make such disposition of the whole case as justice may require.’ ” Id. at 21 (quoting Walling v. James V. Reuter, Co., Inc. , 321 U.S. 671, 677 (1944).

The U.S. Bancorp exception applies in this case. The State appealed the permanent injunction placed on retroactive application of SB 471, but then unilaterally bound itself

1534

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through a judicial admission that mooted the controversy as to retroactive application now before this court. As in U.S. Bancorp, the live case was resolved by the strategic decision of the appealing party rather than mere happenstance. See id. Accordingly, because “the party seeking relief from the judgment below caused the mootness by voluntary action ” we retain the authority to dispose of the case in the manner “most consonant to justice.” Id. at 24 (internal quotation marks omitted).

When a case has been mooted by the appellant’s own actions, the Supreme Court has directed that appellate courts should vacate the district court order only in “exceptional circumstances.” Id. at 29. Our “established procedure” is to remand to the district court so it may balance the relevant equitable concerns and decide whether to vacate its judgment. Dilley v. Gunn, 64 F.3d 1365, 1370 (9th Cir. 1995).

In this case, we conclude that Nevada’s concession regarding the application of SB 471’s disputed provisions, both facially and as applied, would most appropriately be captured in a binding and enforceable comprehensive consent decree fashioned by the parties with the approval of the court and covering all agencies responsible for enforcing SB 471 and all the relevant provisions of the law. This result is precisely what the ACLU requested from the Attorney General in its letter of July 3, 2008 and would eliminate the district court’s concerns about a subsequent administration changing its position. We note that several defendants were dismissed from the case based on the stipulation that they would abide by the decision of the district court. Moreover, our suggested resolution, which eliminates the Contract Clause challenge, is consistent with the prudential rule that we should avoid deciding a constitutional issue unless necessary to resolve a controversy. Lyng v. Northwest Indian Cemetery Protective Assn. , 485 U.S. 439, 445 (1988) ( “A fundamental and longstanding principle of judicial restraint requires that courts avoid reach-

ACLU v. M ASTO

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ing constitutional questions in advance of the necessity of deciding them.”).

[13] Accordingly, trusting that the litigants will work together to fashion appropriate relief, and in view of the State’s stated position that SB 471 will not be applied retroactively, we dismiss as moot the State’s appeal of the district court’s ruling on SB 471. Therefore, the injunction against retroactive application of SB 471, for the time being, remains in effect. We remand to the district court for further proceedings consistent with Nevada’s representation regarding SB 471

C. Stay on Payment of Attorneys’ Fees

The State separately appeals the district court’s denial of its request for a stay on payment of attorneys’ fees pending appeal under Federal Rule of Civil Procedure 62(d). Had the State complied with the express requirements of Rule 62(d) by appealing the underlying fees order and posting a supersedeas bond with the district court, it would have been entitled to a stay as a matter of right. In re Combined Metals Reduction Co., 557 F.2d at 193. But the State did not appeal the fees order or post a supersedeas bond, and therefore “the grant or denial of the stay[ ] was a matter strictly within the judge’s discretion.” Id.

[14] The State fails to identify any instance in which the court supposedly abused its discretion. The judge justified his denial based on the State’s failure to comply with the express requirements of Rule 62(d). The court properly exercised its discretion in doing so. See, e.g., Cervantes v. Countrywide Home Loans, Inc. , 656 F.3d 1034, 1043 (9th Cir. 2011) (party’s failure to comply with procedural rules sufficient grounds for court’s exercise of discretion denying their motion).

1536

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CONCLUSION

[15] We reverse the district court with respect to the injunction placed on retroactive application of AB 579. With respect to SB 471, we dismiss the appeal as moot in view of the State’s representation that it will not apply retroactively the relevant provisions of SB 471, and we remand to the district court to consider whether to vacate the injunction order and to replace it with a binding consent decree. We affirm the district court’s order denying a stay on payment of attorney’s fees.

Appeal No. 08-17471 is REVERSED in part, DISMISSED AS MOOT in part, and REMANDED. Each party shall bear its own costs. Appeal No. 09-16008 is AFFIRMED.

 
 Case: 2:08-cv-822 As of: 11/10/2017 09:06 AM PST 1 of 19
United States District Court District of Nevada (Las Vegas) CIVIL DOCKET FOR CASE #: 2:08−cv−00822−JCM−PAL

CLOSED

ACLU of Nevada v. Masto et al Assigned to: Judge James C. Mahan Referred to: Magistrate Judge Peggy A. Leen Case in other court: USCA 9th Circuit, 08−17471
9th Circuit, 09−16008 Cause: 28:1331 Federal Question: Other Civil Rights
Plaintiff

Date Filed: 06/24/2008 Date Terminated: 06/12/2015 Jury Demand: Both Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

ACLU of Nevada

represented by Allen Lichtenstein Allen Lichtenstein, Ltd 3315 Russell Rd Suite 222 Las Vegas, NV 89120−0000 702−433−2666 Fax: 702 433 9591 Email: alichtensteinlaw@aol.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Margaret A McLetchie McLetchie Shell LLC 701 East Bridger Ave., Suite 520 Las Vegas, NV 89101 (702) 728−5300 Fax: (702)425−8220 Email: maggie@nvlitigation.com (Inactive) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert Langford Robert L. Langford & Associates 616 S 8th Street Las Vegas, NV 89101 702−471−6565 Fax: 702−471−6540 Email: robert@robertlangford.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lee B Rowland ACLU of Nevada 1325 AirMotive Way Suite 202 Reno, NV 89502 775−786−1033 Fax: 775−786−0805 Email: leeberks@gmail.com TERMINATED: 10/20/2010

V. Defendant Jerald Hafen

represented by Binu Palal Office of the Attorney General 555 East Washington Avenue Las Vegas, NV 89101 702−486−3420

Case: 2:08-cv-822 As of: 11/10/2017 09:06 AM PST 2 of 19

Fax: 702−486−3906 Email: bpalal@ag.nv.gov TERMINATED: 08/11/2014

Kimberly Buchanan Nevada Attorney General's Office 555 E. Washington Ave., Ste. 3900 Las Vegas, NV 89101− Email: kbuchanan@ag.nv.gov ATTORNEY TO BE NOTICED

Defendant Bernard W. Curtis

represented by Binu Palal (See above for address) TERMINATED: 08/11/2014

Kimberly Buchanan (See above for address) ATTORNEY TO BE NOTICED

Defendant P.K. O'Neill

represented by Binu Palal (See above for address) TERMINATED: 08/11/2014

Kimberly Buchanan (See above for address) ATTORNEY TO BE NOTICED

Defendant
Michael Haley TERMINATED: 07/28/2008

represented by David C. Creekman PO Box 30083 One S Sierra St Reno, NV 89520−3083 775−337−5700 Fax: 775−337−5732 Email: dcreekman@da.washoecounty.us LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Michael Poehlman

represented by Jack D Campbell Reno City Attorney's Office PO Box 1900 Reno, NV 89505 775−334−2050 Fax: 775−334−2420 Email: campbellj@reno.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Richard A. Gammick TERMINATED: 07/28/2008

represented by David C. Creekman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Douglas Gillespie TERMINATED: 07/28/2008

represented by Nicholas Crosby Marquis & Aurbach 10001 Park Run Drive

Case: 2:08-cv-822 As of: 11/10/2017 09:06 AM PST 3 of 19

Las Vegas, NV 89145− 702−382−0711 Fax: 702−382−5816 Email: ncrosby@maclaw.com TERMINATED: 02/26/2013

Defendant
Joseph Forti TERMINATED: 07/28/2008

Defendant
David Roger TERMINATED: 07/28/2008

represented by Stephanie A. Barker State Bar Of Nevada Assistant Bar Counsel 3100 W Charleston Blvd., #100 Las Vegas, NV 89101 702−317−1433 Fax: 702−385−2878 Email: STEPHANIE.BARKER@ClarkCountyDA.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Richard Perkins TERMINATED: 07/28/2008

Defendant Catherine Cortez Masto

represented by Binu Palal (See above for address) TERMINATED: 08/11/2014

Kimberly Buchanan (See above for address) ATTORNEY TO BE NOTICED

Intervenor
R. M. TERMINATED: 09/05/2008

represented by Terrence M Jackson Law Office of Terrence M. Jackson 624 South Ninth Street Las Vegas, NV 89101 (702)386−0001 Fax: (702)386−0085 Email: Terry.Jackson.Esq@gmail.com TERMINATED: 09/05/2008 LEAD ATTORNEY

Michael L. Peters 601 South Tenth Street #102 Las Vegas, NV 89101 702−894−4100 Fax: 702−894−9466 TERMINATED: 09/05/2008

Randall J Roske Randall J. Roske, Law Office of 400 South Fourth Street Suite 500 Las Vegas, NV 89101 (702) 793−4000 Fax: (702) 793−4001 Email: randallroske@yahoo.com

Case: 2:08-cv-822 As of: 11/10/2017 09:06 AM PST 4 of 19

TERMINATED: 09/05/2008

Intervenor
M. W. TERMINATED: 09/05/2008

represented by Terrence M Jackson (See above for address) TERMINATED: 09/05/2008 LEAD ATTORNEY

Michael L. Peters (See above for address) TERMINATED: 09/05/2008

Randall J Roske (See above for address) TERMINATED: 09/05/2008

Intervenor
J. S. TERMINATED: 09/05/2008

represented by Terrence M Jackson (See above for address) TERMINATED: 09/05/2008 LEAD ATTORNEY

Michael L. Peters (See above for address) TERMINATED: 09/05/2008

Randall J Roske (See above for address) TERMINATED: 09/05/2008

Intervenor
E. C. TERMINATED: 09/05/2008

represented by Terrence M Jackson (See above for address) TERMINATED: 09/05/2008 LEAD ATTORNEY

Michael L. Peters (See above for address) TERMINATED: 09/05/2008

Randall J Roske (See above for address) TERMINATED: 09/05/2008

Intervenor
N. J. TERMINATED: 09/05/2008

represented by Terrence M Jackson (See above for address) TERMINATED: 09/05/2008 LEAD ATTORNEY

Michael L. Peters (See above for address) TERMINATED: 09/05/2008

Randall J Roske (See above for address) TERMINATED: 09/05/2008

Intervenor
P. M. TERMINATED: 09/05/2008

represented by Terrence M Jackson (See above for address) TERMINATED: 09/05/2008

Case: 2:08-cv-822 As of: 11/10/2017 09:06 AM PST 5 of 19

LEAD ATTORNEY

Michael L. Peters (See above for address) TERMINATED: 09/05/2008

Randall J Roske (See above for address) TERMINATED: 09/05/2008

Intervenor
L. M. TERMINATED: 09/05/2008

represented by Terrence M Jackson (See above for address) TERMINATED: 09/05/2008 LEAD ATTORNEY

Michael L. Peters (See above for address) TERMINATED: 09/05/2008

Randall J Roske (See above for address) TERMINATED: 09/05/2008

Intervenor
R. T. TERMINATED: 09/05/2008

represented by Terrence M Jackson (See above for address) TERMINATED: 09/05/2008 LEAD ATTORNEY

Michael L. Peters (See above for address) TERMINATED: 09/05/2008

Randall J Roske (See above for address) TERMINATED: 09/05/2008

Intervenor
W. D. M. TERMINATED: 09/05/2008

represented by Terrence M Jackson (See above for address) TERMINATED: 09/05/2008 LEAD ATTORNEY

Michael L. Peters (See above for address) TERMINATED: 09/05/2008

Randall J Roske (See above for address) TERMINATED: 09/05/2008

Intervenor
M. L. T. TERMINATED: 09/05/2008

represented by Terrence M Jackson (See above for address) TERMINATED: 09/05/2008 LEAD ATTORNEY

Michael L. Peters (See above for address) TERMINATED: 09/05/2008

Case: 2:08-cv-822 As of: 11/10/2017 09:06 AM PST 6 of 19

Randall J Roske (See above for address) TERMINATED: 09/05/2008

Intervenor
B. J. H. TERMINATED: 09/05/2008

represented by Terrence M Jackson (See above for address) TERMINATED: 09/05/2008 LEAD ATTORNEY

Michael L. Peters (See above for address) TERMINATED: 09/05/2008

Randall J Roske (See above for address) TERMINATED: 09/05/2008

Intervenor
R. D. TERMINATED: 09/05/2008

represented by Terrence M Jackson (See above for address) TERMINATED: 09/05/2008 LEAD ATTORNEY

Michael L. Peters (See above for address) TERMINATED: 09/05/2008

Randall J Roske (See above for address) TERMINATED: 09/05/2008

Intervenor
R. W. TERMINATED: 09/05/2008

represented by Terrence M Jackson (See above for address) TERMINATED: 09/05/2008 LEAD ATTORNEY

Michael L. Peters (See above for address) TERMINATED: 09/05/2008

Randall J Roske (See above for address) TERMINATED: 09/05/2008

Intervenor
D. C. TERMINATED: 09/05/2008

represented by Terrence M Jackson (See above for address) TERMINATED: 09/05/2008 LEAD ATTORNEY

Michael L. Peters (See above for address) TERMINATED: 09/05/2008

Randall J Roske (See above for address) TERMINATED: 09/05/2008

Intervenor

represented by

Case: 2:08-cv-822 As of: 11/10/2017 09:06 AM PST 7 of 19

C. T. W. TERMINATED: 09/05/2008

Terrence M Jackson (See above for address) TERMINATED: 09/05/2008 LEAD ATTORNEY

Michael L. Peters (See above for address) TERMINATED: 09/05/2008

Randall J Roske (See above for address) TERMINATED: 09/05/2008

Date Filed 06/24/2008
06/24/2008 06/24/2008 06/25/2008
06/25/2008 06/25/2008 06/25/2008 06/25/2008 06/25/2008 06/25/2008 06/25/2008 06/25/2008 06/26/2008

# Docket Text
1 Civil Cover Sheet COMPLAINT against all defendants (Filing fee $ 350 receipt number 09780000000000920938), filed by ACLU of Nevada. Certificate of Interested Parties due by 7/4/2008. Proof of service due by 10/22/2008.(McLetchie, Margaret) Modified to add link to 2 COMPLAINT on 6/25/2008 (MAJ). (Entered: 06/24/2008)
2 COMPLAINT EXHIBIT(s) to 1 Complaint ; filed by Plaintiffs ACLU of Nevada, Does 1−5, Does A−G. (McLetchie, Margaret) Modified docket type on 6/25/2008 (MAJ). (Entered: 06/24/2008)
Case assigned to Judge James C. Mahan and Magistrate Judge Peggy A. Leen. (ASB) (Entered: 06/25/2008)
3 NOTICE PURSUANT TO LOCAL RULE IB 2−2: In accordance with 28 USC § 636(c) and FRCP 73, the parties in this action are provided with a link to the "AO 85 Notice of Availability, Consent, and Order of Reference − Exercise of Jurisdiction by a U.S. Magistrate Judge" form on the Court's website − link. Consent forms should NOT be electronically filed. Upon consent of all parties, counsel are advised to manually file the form with the Clerk's Office. (no image attached) (ASB) (Entered: 06/25/2008)
4 CERTIFICATE of Interested Parties filed by ACLU of Nevada.. There are no known interested parties other than those participating in the case. (McLetchie, Margaret) (Entered: 06/25/2008)
5 DECLARATION of Margaret McLetchie In Support of 7 TRO by Plaintiff ACLU of Nevada. (McLetchie, Margaret) Modified to add docket relationship on 6/27/2008 (MAJ). (Entered: 06/25/2008)
6 MOTION for Leave to File Excess Pages by Plaintiff ACLU of Nevada. Motion ripe 6/25/2008. (Attachments: # 1 Proposed Order with Stipulation to Increase Pages)(Langford, Robert) (Entered: 06/25/2008)
7 MOTION for Temporary Restraining Order and Preliminary Injunction by Plaintiff ACLU of Nevada. Motion ripe 6/25/2008. (Attachments: # 1 Supplement Part 2/3, # 2 Supplement Part 3/3)(McLetchie, Margaret) (Entered: 06/25/2008)
8 EXHIBIT(s) to 7 MOTION for Temporary Restraining Order and Preliminary Injunction ; filed by Plaintiff ACLU of Nevada. (McLetchie, Margaret) (Entered: 06/25/2008)
9 MOTION for Protective Order by Plaintiff ACLU of Nevada. Motion ripe 6/25/2008. (Langford, Robert) (Entered: 06/25/2008)
10 NOTICE of Hearing on 7 MOTION for Temporary Restraining Order and Preliminary Injunction : Motion Hearing set for 6/30/2008 01:30 PM in LV Courtroom 6A before Judge James C. Mahan. (no image attached)(SRB) (Entered: 06/25/2008)
11 PROPOSED SUMMONS to be issued, filed by Plaintiff ACLU of Nevada. (Langford, Robert) (Entered: 06/25/2008)
12 Summons Issued as to Michael Poehlman. (ASB) (Additional attachment(s) added on 6/26/2008: # 1 Corrected Image) (ASB). (Entered: 06/26/2008)

Case: 2:08-cv-822 As of: 11/10/2017 09:06 AM PST 8 of 19

06/26/2008 06/26/2008 06/26/2008 06/26/2008 06/26/2008 06/26/2008 06/26/2008 06/26/2008 06/26/2008 06/26/2008 06/26/2008
06/27/2008
06/27/2008 06/27/2008
06/30/2008
07/07/2008

13 Summons Issued as to David Roger. (ASB) (Entered: 06/26/2008)
14 Summons Issued as to Richard Perkins. (ASB) (Entered: 06/26/2008)
15 Summons Issued as to P.K. O'Neill. (ASB) (Entered: 06/26/2008)
16 Summons Issued as to Catherine Cortez Masto. (ASB) (Entered: 06/26/2008)
17 Summons Issued as to Michael Haley. (ASB) (Entered: 06/26/2008)
18 Summons Issued as to Douglas Gillespie. (ASB) (Entered: 06/26/2008)
19 Summons Issued as to Richard A. Gammick. (ASB) (Entered: 06/26/2008)
20 Summons Issued as to Joseph Forti. (ASB) (Entered: 06/26/2008)
21 Summons Issued as to Bernard W. Curtis. (ASB) (Entered: 06/26/2008)
22 SUPPLEMENT to 8 Exhibit, 7 MOTION for Temporary Restraining Order and Preliminary Injunction ; by Plaintiff ACLU of Nevada. (Langford, Robert) (Entered: 06/26/2008)
23 MINUTE ORDER IN CHAMBERS of the Honorable Magistrate Judge Peggy A. Leen, on 6/26/2008. By Deputy Clerk: Carol A. Knight. RE: 9 MOTION for Protective Order. Motion Hearing set for 8/12/2008 11:00 AM in LV Courtroom 3B before Magistrate Judge Peggy A. Leen. (Copies have been distributed pursuant to the NEF − SRK) (Entered: 06/26/2008)
24 DECLARATION of Robert Langford in Support of TPO re 7 MOTION for Temporary Restraining Order and Preliminary Injunction ; by Plaintiff ACLU of Nevada. (Attachments: # 1 Declaration of Doe plaintiffs A−G)(Langford, Robert) (Entered: 06/27/2008)
25 ADDENDUM to 9 MOTION for Protective Order ; Proposed addendum to TRO Motion (State Court Stay) by Plaintiff ACLU of Nevada. (McLetchie, Margaret) (Entered: 06/27/2008)
26 CERTIFICATE OF SERVICE for (1) Plaintiffs Motion For and Memorandum of Points and Authorities In Support of Temporary Restraining Order and Preliminary Injunction; (2) Declaration of Margaret McLetchie In Support of Declaration; (3) Motion To Increase Page Count Of Memorandum of Points and Authorities In Support of Motion for Temporary Restraining Order and Preliminary Injunction; (4) Exhibits In Support of Motion for a Temporary Restraining Order and Preliminary Injunction; and (5) Motion for Protective Order to allow Plaintiffs to Proceed Using Pseudonyms Does 1−5 an Does A−G by Plaintiff ACLU of Nevada re 5 Declaration, 9 MOTION for Protective Order, 8 Exhibit, 6 MOTION for Leave to File Excess Pages, 7 MOTION for Temporary Restraining Order and Preliminary Injunction, 2 Exhibit. (Langford, Robert) (Entered: 06/27/2008)
27 MINUTES OF PROCEEDINGS − Preliminary/Permanent Injunction Hearing held on 6/30/2008 before Judge James C. Mahan. Crtrm Administrator: David Oakes; Pla Counsel: Margaret McLetchie, Robert Langford; Def Counsel: Robert Zentz, Binu Palal, Kimberly Buchanan, David Creegman−Appearing telephonically, Chris Davis; Court Reporter/FTR #: Joy Garner; Time of Hearing: 1:30 p.m.; Courtroom: 6A; denying 7 Motion for TRO.; and granting Preliminary Injunction., Plaintiff's Amended Complaint deadline: 7/4/2008., Defendants' Responses due by 7/28/2008., Plaintiff's Reply brief due by 8/11/2008., Permanent Injunction Hearing is set for 8/26/2008 at 10:00 a.m., in 6A before Judge James C. Mahan.) (Copies have been distributed pursuant to the NEF − DXO) (Entered: 06/30/2008)
28 TRANSCRIPT of Proceedings, 27 Order on Motion for TRO,,,, Preliminary/Permanent Injunction Hearing,,, held on Monday, June 30, 2008, before Judge James C. Mahan. Court Reporter/Transcriber: Joy Garner, 702−384−3188. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber using the court's "Transcript Order" form available on our website www.nvd.uscourts.gov before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 7/28/2008. Redacted Transcript Deadline set for 8/7/2008. Release of Transcript Restriction set for 10/5/2008. (VHM) (Entered: 07/07/2008)

Case: 2:08-cv-822 As of: 11/10/2017 09:06 AM PST 9 of 19

07/07/2008 07/08/2008 07/08/2008 07/08/2008 07/09/2008 07/09/2008 07/09/2008 07/10/2008 07/10/2008
07/10/2008 07/10/2008 07/11/2008
07/11/2008
07/14/2008

29 AMENDED COMPLAINT with Jury Demand against all defendants, filed by ACLU of Nevada. Adds new parties. Proof of service due by 11/4/2008.(Langford, Robert) (Entered: 07/07/2008)
30 MOTION Modification to Scheduling Order Request for Modification by Plaintiff ACLU of Nevada. Responses due by 7/26/2008. (Attachments: # 1 Declaration Declaration of Margaret McLetchie ISO Request for Modification to Scheduling Order)(McLetchie, Margaret) (Entered: 07/08/2008)
31 MOTION to Expedite Time to for Request for Modification to Scheduling Order by Plaintiff ACLU of Nevada. Motion ripe 7/8/2008. (McLetchie, Margaret) (Entered: 07/08/2008)
32 CERTIFICATE OF SERVICE DECLARATION of Proof of Service re 30 MOTION Modification to Scheduling Order Request for Modification ; filed by Plaintiff ACLU of Nevada. (McLetchie, Margaret) Modified to correct document type on 7/9/2008 (MAJ). (Entered: 07/08/2008)
33 NOTICE of Hearing on 30 MOTION Modification to Scheduling Order Request for Modification : Motion Hearing set for 7/16/2008 01:45 PM in LV Courtroom 6A before Judge James C. Mahan. (no image attached)(SRB) (Entered: 07/09/2008)
34 CERTIFICATE OF SERVICE for Amended Complaint by Plaintiff ACLU of Nevada re 29 Amended Complaint. (Langford, Robert) (Entered: 07/09/2008)
35 NOTICE of Appearance by attorney Nicholas Crosby on behalf of Defendant Douglas Gillespie. (Crosby, Nicholas) (Entered: 07/09/2008)
36 MOTION re 27 Order on Motion for TRO,,,, Preliminary/Permanent Injunction Hearing,,, Motion for Clarification of Order by Defendant Catherine Cortez Masto. Responses due by 7/28/2008. (Attachments: # 1 Exhibit A, pages 1−12, # 2 Exhibit A, pages 13−23)(Palal, Binu) (Entered: 07/10/2008)
37 MOTION to Expedite re 36 MOTION re 27 Order on Motion for TRO,,,, Preliminary/Permanent Injunction Hearing, Motion for Clarification of Order MOTION re 27 Order on Motion for TRO, Preliminary/Permanent Injunction Hearing ; EMERGENCY REQUEST FOR ORDER SHORTENING TIME ON MOTION FOR CLARIFICATION OF ORDER by Defendant Catherine Cortez Masto. (Palal, Binu) Modified docket type on 7/11/2008 (MAJ). (Entered: 07/10/2008)
38 CERTIFICATE OF SERVICE for 30 Request For Modification to Scheduling Order; 31 Request for Order Shortening Time by Plaintiff ACLU of Nevada. Amended (Langford, Robert) Modified to add docket relationship on 7/11/2008 (MAJ). (Entered: 07/10/2008)
39 RESPONSE to 9 MOTION for Protective Order, filed by Defendants Michael Haley, Richard A. Gammick. Washoe County Defendants' Opposition to Plaintiffs' Request for Protective Order to Allow Plaintiffs to Proceed Using Pseudonyms Replies due by 7/24/2008. (Creekman, David) (Entered: 07/10/2008)
40 RESPONSE to 30 MOTION Modification to Scheduling Order Request for Modification, filed by Defendants Michael Haley, Richard A. Gammick. Washoe County Defendants' Opposition to Plaintiffs' "Request for Modification to Scheduling Order and Request for Order Shortening Time" Replies due by 7/25/2008. (Creekman, David) (Entered: 07/11/2008)
41 JOINDER to 39 Washoe County Defendants' Opposition to Plaintiffs' Request for Protective Order to Allow Plaintiff to Proceed Using Pseudonyms 9 MOTION for Protective Order; Joinder in Washoe County Defendants' Opposition to Plaintiffs' Request for Protective Order to Allow Plaintiff to Proceed Using Pseudonyms (#9) filed by Defendants P.K. O'Neill, Catherine Cortez Masto, Jerald Hafen, Bernard W. Curtis. (Palal, Binu) Modified to add docket relationship on 7/14/2008 (MAJ). (Entered: 07/11/2008)
42 RESPONSE to 30 MOTION Modification to Scheduling Order Request for Modification, filed by Defendant Douglas Gillespie. Replies due by 7/28/2008. (Crosby, Nicholas) (Entered: 07/14/2008)

Case: 2:08-cv-822 As of: 11/10/2017 09:06 AM PST 10 of 19

07/14/2008 07/14/2008 07/16/2008 07/16/2008
07/16/2008 07/18/2008 07/21/2008
07/22/2008
07/24/2008 07/24/2008 07/24/2008 07/24/2008 07/24/2008 07/25/2008 07/28/2008

43 JOINDER to 40 Response to Motion, ; filed by Defendant Douglas Gillespie. (Crosby, Nicholas) (Entered: 07/14/2008)
44 RESPONSE to 30 MOTION Modification to Scheduling Order Request for Modification, filed by Defendant Catherine Cortez Masto. STATE DEFENDANTS RESPONSE TO PLAINTIFFS REQUEST FOR MODIFICATION TO SCHEDULING ORDER Replies due by 7/28/2008. (Palal, Binu) (Entered: 07/14/2008)
45 REPLY to Response to 30 MOTION Modification to Scheduling Order Request for Modification ; filed by Plaintiff ACLU of Nevada. Reply to Defendants' Oppositions (McLetchie, Margaret) (Entered: 07/16/2008)
46 MINUTES OF PROCEEDINGS − Motion Hearing held on 7/16/2008 before Judge James C. Mahan. Crtrm Administrator: Lesa Ettinger; Pla Counsel: Margaret McLetchie, Allen Lichtenstein and Robert Langford; Def Counsel: Mary Kandaros, Binu Palal, Kimberly Buchanan, Nick Crosby and Lucinda Coumou; Court Reporter/FTR #: Joy Garner; Time of Hearing: 1:45 PM; Courtroom: 6A; The Court hears arguments of counsel. For reasons stated on the record. IT IS ORDERED that 30 Motion Modification to Scheduling Order Request for Modification is DENIED. (Copies have been distributed pursuant to the NEF − LE) (Entered: 07/16/2008)
47 NOTICE of Appearance by attorney Stephanie A. Barker on behalf of Defendant David Roger. (Barker, Stephanie) (Entered: 07/16/2008)
48 NOTICE of Change of Attorney on behalf of Defendant Michael Poehlman. (Campbell, Jack) (Entered: 07/18/2008)
49 SUMMONS Returned Executed by ACLU of Nevada re 15 Summons Issued, 1 Complaint, 20 Summons Issued, 12 Summons Issued, 19 Summons Issued, 13 Summons Issued, 18 Summons Issued, 17 Summons Issued, 21 Summons Issued, 34 Certificate of Service, 14 Summons Issued. P.K. O'Neill served on 7/7/2008, answer due 7/27/2008; Michael Haley served on 7/2/2008, answer due 7/27/2008; Michael Poehlman served on 7/2/2008, answer due 7/27/2008; Richard A. Gammick served on 7/2/2008, answer due 7/27/2008; Douglas Gillespie served on 7/2/2008, answer due 7/27/2008; Joseph Forti served on 7/2/2008, answer due 7/27/2008; David Roger served on 7/2/2008, answer due 7/27/2008; Richard Perkins served on 7/3/2008, answer due 7/27/2008; Bernard W. Curtis served on 7/2/2008, answer due 7/27/2008. (Langford, Robert) (Entered: 07/21/2008)
50 ANSWER to 29 Amended Complaint with Jury Demand DEFENDANTS CATHERINE CORTEZ MASTO; GERALD HAFEN, BERNARD W. CURTIS; and CAPTAIN P.K. ONEILLS ANSWER TO PLAINTIFFS FIRST AMENDED COMPLAINT filed by P.K. O'Neill, Catherine Cortez Masto, Jerald Hafen, Bernard W. Curtis.(Palal, Binu) (Entered: 07/22/2008)
51 STIPULATION of Dismissal of Certain Defendants; Attestation; Certificate of Service by Plaintiff ACLU of Nevada. (McLetchie, Margaret) (Entered: 07/24/2008)
52 REPLY to Response to 9 MOTION for Protective Order ; filed by Plaintiff ACLU of Nevada. (Langford, Robert) (Entered: 07/24/2008)
53 SUMMONS Returned Executed by ACLU of Nevada re 16 Summons Issued, 1 Complaint,. Catherine Cortez Masto served on 7/2/2008, answer due 7/22/2008. (Langford, Robert) (Entered: 07/24/2008)
54 STIPULATION of Dismissal of Defendants Gammick and Haley by Plaintiff ACLU of Nevada. (McLetchie, Margaret) (Entered: 07/24/2008)
55 REPLY to Response to 9 MOTION for Protective Order ; filed by Plaintiff ACLU of Nevada. (Reply to State Defendants' Joinder By Does 1−8 and ACLU) (McLetchie, Margaret) (Entered: 07/24/2008)
56 STIPULATION of Dismissal Certain Named Defendant (Poehlman) by Plaintiff ACLU of Nevada. (Langford, Robert) (Entered: 07/25/2008)
57 TRANSCRIPT of Proceedings, 46 Motion Hearing held on 7/16/2008, before Judge James C. Mahan. Court Reporter/Transcriber: Joy Garner, 702−384−3188. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber using the court's "Transcript Order" form available on our

Case: 2:08-cv-822 As of: 11/10/2017 09:06 AM PST 11 of 19

07/28/2008 07/28/2008
07/28/2008 07/29/2008 07/31/2008 08/04/2008 08/12/2008
08/18/2008 08/18/2008 08/18/2008

website www.nvd.uscourts.gov before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER Redaction Request due 8/18/2008. Redacted Transcript Deadline set for 8/28/2008. Release of Transcript Restriction set for 10/26/2008. (ABB) (Entered: 07/28/2008)
58 ORDER ON STIPULATION Granting 51 Stipulation of Dismissal Without Prejudice. Each party shall bear their own attorneys' fees and costs and shall not be subject to any award of attorneys' fees, costs, or damages arising from this action. Richard Perkins; David Roger; Joseph Forti and Douglas Gillespie terminated. Signed by Judge James C. Mahan on 07/28/. (Copies have been distributed pursuant to the NEF − SRK) (Entered: 07/28/2008)
59 RESPONSE to 8 Exhibit, 7 MOTION for Temporary Restraining Order and Preliminary Injunction ; DEFENDANTS MASTO, HAFEN, CURTIS AND ONEILLS RESPONSE TO PLAINTIFFS MOTION FOR AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION filed by Defendants P.K. O'Neill, Catherine Cortez Masto, Jerald Hafen, Bernard W. Curtis. (Attachments: # 1 Response to TRO − Part 2, # 2 Response to TRO − Part 3, # 3 Response to TRO − Part 4, # 4 Response to TRO − Part 5)(Palal, Binu) (Entered: 07/28/2008)
61 ORDER ON STIPULATION Granting 54 Stipulation of Dismissal Without Prejudice. Each party shall bear their own attorneys' fees and costs and shall not be subject to any award of attorneys' fees, costs, or damages arising from this action. Richard A. Gammick and Michael Haley terminated. Signed by Judge James C. Mahan on 07/28/08. (Copies have been distributed pursuant to the NEF − SRK) (Entered: 07/29/2008)
60 EXHIBIT(s) to 59 Response − Other,, ; filed by Defendants P.K. O'Neill, Catherine Cortez Masto, Jerald Hafen, Bernard W. Curtis. (Attachments: # 1 Exhibit Exhibit 1 − Part 2, # 2 Exhibit Exhibit 1 − Part 3, # 3 Exhibit Exhibit 1 − Part 4, # 4 Exhibit Exhibit 2 − Part 1, # 5 Exhibit Exhibit 2 − Part 2, # 6 Exhibit Exhibit 2 − Part 3, # 7 Exhibit Exhibit 2 − Part 4, # 8 Errata Exhibit 3)(Palal, Binu) (Entered: 07/29/2008)
62 STIPULATION regarding scheduling by Plaintiff ACLU of Nevada. (McLetchie, Margaret) (Entered: 07/31/2008)
Set/Reset Hearings: Motion Hearing set for 8/26/2008 is hereby VACATED and RESCHEDULED for 9/10/2008 10:30 AM before Judge James C. Mahan. (SRB) (Entered: 08/04/2008)
63 MINUTES OF PROCEEDINGS − Motion Hearing held on 8/12/2008 before Magistrate Judge Peggy A. Leen. Crtrm Administrator: Jeff Miller; Pla Counsel: Margaret A. McLetchie, Esq., Robert Langford, Esq.; Def Counsel: Kimberly Buchanan, Esq.; Court Reporter/FTR #: 10:59:30 − 11:17:59; Time of Hearing: 11:00am; Courtroom: 3B; The Court summarizes the matter before it and hear representations of counsel regarding Motion for Protective Order #9. IT IS ORDERED:Motion for Protective Order #9 is GRANTED, and will permit the plaintiffs to proceed by pseudonym in the public record pending a decision on the merits by the District Judge. However, the names of the Doe Plaintiffs shall be disclosed to the defendants in this case so that they can investigate the standing in any other issues pertinent to a decision on the merits. If counsel needs to make inquiries to the Parole Department, they may do so but not in a way that will affirmatively broadcast that they are asking for information in relation to this case. Individual Parole/Probation Officers will not be notified. A separate written order will issue. (Copies have been distributed pursuant to the NEF − JAM) (Entered: 08/14/2008)
64 MOTION for Leave to File Excess Pages For Plaintiffs' Reply by Plaintiff ACLU of Nevada. Motion ripe 8/18/2008. (Langford, Robert) (Entered: 08/18/2008)
65 REPLY to Response to 7 MOTION for Temporary Restraining Order and Preliminary Injunction ; filed by Plaintiff ACLU of Nevada. (Attachments: # 1 Plaintiffs' Reply part. 2, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3)(Langford, Robert) (Entered: 08/18/2008)
66 ORDER: The 9 MOTION for Protective Order is Granted part and Denied in part as follows: The Doe Plaintiffs are permitted to proceed under pseudonym for purposes of

Case: 2:08-cv-822 As of: 11/10/2017 09:06 AM PST 12 of 19

08/20/2008
09/05/2008 09/05/2008 09/10/2008
09/24/2008 09/25/2008 10/01/2008 10/02/2008 10/03/2008 10/07/2008 10/07/2008
10/17/2008

the public record while the District Judge adjudicates the merits of the Permanent Injunction and unless otherwise ordered by this Court. Counsel for the Doe Plaintiffs shall disclose the names and personal identifiers of the Doe Plaintiffs to counsel for the Defendants. A temporary protective order is entered precluding the Defendants from disclosing the names and personal identifiers of the Doe Plaintiffs and from using this information for any purpose not related to this litigation. Counsel for the Defendants may request criminal records and related information necessary to investigate the Doe Plaintiffs' standing to bring this action from the Department of Parole and Probation and/or any other governmental source but shall not disclose the purpose for which the information is sought. Signed by Magistrate Judge Peggy A. Leen on 08/18/08. (Copies have been distributed pursuant to the NEF − SRK) (Entered: 08/19/2008)
67 MOTION to Intervene and/or Leave to File Amicus Curiae Brief, and a Request for Expedited Hearing; filed by Intervenor Parties R. M., M. W., J. S., E. C., N. J., P. M., L. M., R. T., W. D. M., M. L. T., B. J. H., R. D., R. W., D. C., C. T. W.. Responses due by 9/7/2008. (Attachments: # 1 Part 2 of Motion, # 2 Certificate of Service)(SRK) (Entered: 08/22/2008)
68 NOTICE of Hearing: Permanent Injunction Hearing set for 9/10/2008 10:30 AM in LV Courtroom 6A before Judge James C. Mahan. (no image attached)(DXO) (Entered: 09/05/2008)
69 ORDER Denying 67 Motion to Intervene. Request to file an amicus curiae brief is denied. Signed by Judge James C. Mahan on 9/5/08. (Copies have been distributed pursuant to the NEF − AXM) (Entered: 09/05/2008)
70 MINUTES OF PROCEEDINGS − Preliminary/Permanent Injunction Hearing held on 9/10/2008 before Judge James C. Mahan. Crtrm Administrator: David Oakes; Pla Counsel: Margaret McLetchie, Allen Lichtenstein, Robert Langford; Def Counsel: Binu Palal, Kimberly Buchanan; Court Reporter/FTR #: Joy Garner; Time of Hearing: 10:30 a.m.; Courtroom: 6A; granting and entering the Permanent Injunction.; ( Submission of Proposed Order obo plaintiff is due by 9/24/2008.) (Copies have been distributed pursuant to the NEF − DXO) Modified on 9/10/2008 (DXO). (Entered: 09/10/2008)
71 STIPULATION re 70 Order on Motion,,, Preliminary/Permanent Injunction Hearing,, ; Stipulation to Extend Time to Submit Proposed Order by Defendants P.K. O'Neill, Catherine Cortez Masto, Jerald Hafen, Bernard W. Curtis. (Buchanan, Kimberly) (Entered: 09/24/2008)
72 ORDER ON STIPULATION granting 71 Stipulation, to extend time to Submit Proposed Order, due by 10/1/2008. Signed by Judge James C. Mahan. (Copies have been distributed pursuant to the NEF − AXM) (Entered: 09/25/2008)
73 Submission of PROPOSED ORDER on 7 MOTION for Temporary Restraining Order and Preliminary Injunction ; filed by Plaintiff ACLU of Nevada. Plaintiffs' Proposed Order Granting Permanent Injunction (McLetchie, Margaret) (Entered: 10/01/2008)
74 OBJECTION to 73 Proposed Order Submission ; Objection To Plaintiffs' Proposed Order And Defendants' Proposed Order filed by Defendants P.K. O'Neill, Catherine Cortez Masto, Jerald Hafen, Bernard W. Curtis. (Palal, Binu) (Entered: 10/02/2008)
75 RESPONSE to 74 Objection to Document, 73 Proposed Order Submission ; Response to Defendants' Objection to Plaintiff's Proposed Order filed by Plaintiff ACLU of Nevada. (McLetchie, Margaret) (Entered: 10/03/2008)
76 Submission of PROPOSED ORDER on 73 Proposed Order Submission ; filed by Plaintiff ACLU of Nevada Plaintiff's Revised Proposed Order Granting Permanent Injunction. (McLetchie, Margaret) (Entered: 10/07/2008)
77 REVISED PERMANENT INJUNCTION. The Court grants Plaintiffs Motion for Summary Judgment, making the 6/30/08 Preliminary Injunction enjoining the enforcement of A.B. 579 and S.B. 471 a Permanent Injunction. Signed by Judge James C. Mahan on 10/7/08. (Copies have been distributed pursuant to the NEF − AXM) Modified text on 1/13/2009 (MAJ). (Entered: 10/07/2008)
78 First MOTION to Extend Time regarding discovery/non dispositive matter Motion to extend time to file motion for attorney's fees by Plaintiff ACLU of Nevada. Motion

Case: 2:08-cv-822 As of: 11/10/2017 09:06 AM PST 13 of 19

10/17/2008 10/22/2008 10/27/2008 10/28/2008
10/29/2008 10/29/2008 11/03/2008 11/03/2008
11/10/2008 11/17/2008 12/01/2008
12/01/2008 12/02/2008 01/12/2009

ripe 10/17/2008. (Attachments: # 1 Declaration Declaration in Support of Motion To Extend Time)(McLetchie, Margaret) (Entered: 10/17/2008)
79 Submission of PROPOSED ORDER on 78 First MOTION to Extend Time regarding discovery/non dispositive matter Motion to extend time to file motion for attorney's fees ; filed by Plaintiff ACLU of Nevada Proposed Order Granting Plaintiffs' Motion To Extend Time. (McLetchie, Margaret) (Entered: 10/17/2008)
80 ORDER Granting 78 Motion to Extend Time to FIle a Motion for Attorney's Fees. Motions due by 10/28/2008. Signed by Judge James C. Mahan on 10/21/08. (Copies have been distributed pursuant to the NEF − SRK) (Entered: 10/22/2008)
81 Mail Returned as "Return to Sender, Attempted Not Known, Unable to Forward" re 80 Order, addressed to Michael L. Peters. New Address Found, Remailed to Michael L. Peters, 601 S. 10th St. #102, Las Vegas, NV 89101. (SRK) (Entered: 10/28/2008)
82 MOTION for Attorney Fees by Plaintiff ACLU of Nevada. Responses due by 11/15/2008. (Attachments: # 1 Declaration McLetchie Declaration ISO Motion for Attorney's Fees, # 2 Exhibit Exs 1 and 2 to McLetchie Declaration ISO Motion for Attorney's Fees, # 3 Declaration Declaration of Franny Forsman, # 4 Declaration Cal Potter Declaration)(McLetchie, Margaret) (Entered: 10/28/2008)
83 NOTICE OF APPEAL as to 77 Permanent Injunction by Defendants P.K. O'Neill, Catherine Cortez Masto, Jerald Hafen, Bernard W. Curtis. Filing fee $ 455, receipt number 09780000000001034733. (Palal, Binu) (Entered: 10/29/2008)
84 STATEMENT of Representation re 83 Notice of Appeal ; Representation Statement by Defendants P.K. O'Neill, Catherine Cortez Masto, Jerald Hafen, Bernard W. Curtis. (Palal, Binu) (Entered: 10/29/2008)
85 TRANSMITTAL of Notice of Appeal and Docket Sheet to US Court of Appeals re 83 Notice of Appeal. (SRK) (Additional attachment(s) added on 11/3/2008: # 1 Transcript Designation and Order Form) (SRK). (Entered: 11/03/2008)
86 TRANSCRIPT of Proceedings, 70 Preliminary/Permanent Injunction Hearing,, held on 9/10/2008, before Judge James C. Mahan. Court Reporter/Transcriber: Joy Garner, 702−384−3188. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber using the court's "Transcript Order" form available on our website www.nvd.uscourts.gov before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER Redaction Request due 11/24/2008. Redacted Transcript Deadline set for 12/4/2008. Release of Transcript Restriction set for 2/1/2009. (ABB) (Entered: 11/03/2008)
91 TRANSMITTAL RETURN of Notice of Appeal from USCA re 83 Notice of Appeal. USCA Case Number 08−17471, no image attached. (SRK) (Entered: 12/16/2008)
87 RESPONSE to 82 MOTION for Attorney Fees, filed by Defendants P.K. O'Neill, Catherine Cortez Masto, Jerald Hafen, Bernard W. Curtis. State Defendants' Opposition to Application of Plaintiffs ACLU of Nevada and Does 1−8 for Attorney's Fees and Costs Replies due by 12/1/2008. (Palal, Binu) (Entered: 11/17/2008)
88 TRANSCRIPT DESIGNATION by Defendants P.K. O'Neill, Catherine Cortez Masto, Jerald Hafen, Bernard W. Curtis re 83 Notice of Appeal, 70 Order on Motion,,, Preliminary/Permanent Injunction Hearing,,. Designation Of Transcripts To Be Used In Record On Appeal (Attachments: # 1 Transcript − Part 1, # 2 Transcript − Part 2)(Palal, Binu) Attachments 1 & 2 unsealed per expiration of release of transcript deadline on 2/1/09. (MJZ) (Entered: 12/01/2008)
89 REPLY to Response to 82 MOTION for Attorney Fees ; filed by Plaintiff ACLU of Nevada. (Attachments: # 1 Declaration Of Gregory Kamer)(McLetchie, Margaret) (Entered: 12/01/2008)
90 CERTIFICATE OF RECORD on Appeal Transmitted to USCA re 83 Notice of Appeal. (SRK) (Entered: 12/02/2008)
92 ORDER Granting Plaintiffs' 82 Motion for Attorney Fees in the amount of $145,823.50. Signed by Judge James C. Mahan on 01/12/09. (Copies have been distributed pursuant to the NEF − SRK) (Entered: 01/13/2009)

Case: 2:08-cv-822 As of: 11/10/2017 09:06 AM PST 14 of 19

01/13/2009 01/23/2009 01/28/2009 01/30/2009 02/17/2009 03/03/2009 03/03/2009 03/05/2009 03/17/2009
04/08/2009 05/08/2009 05/11/2009 05/11/2009 06/16/2009 06/19/2009 07/02/2009

93 JUDGMENT on Attorney Fees in favor of ACLU of Nevada, in the amount $145,823.50, as outlines in their billing and costs report. Signed by Clerk of Court Lance S. Wilson on 01/13/09. (Copies have been distributed pursuant to the NEF − SRK) (Entered: 01/13/2009)
94 MOTION For Stay re 92 Order on Motion for Attorney Fees; by Defendants P.K. O'Neill, Catherine Cortez Masto, Jerald Hafen, Bernard W. Curtis. Responses due by 2/10/2009. (Palal, Binu) Modified text on 3/5/2009 (SRK). (Entered: 01/23/2009)
95 STIPULATION re 94 MOTION For Stay re 92 Order on Motion for Attorney Fees by Plaintiff ACLU of Nevada. (McLetchie, Margaret) Modified text on 3/5/2009 (SRK). (Entered: 01/28/2009)
96 ORDER GRANTING 95 Stipulation to Extend Deadline. Responses due by 2/17/2009 re 94 MOTION Motion For Stay re 92 Order on Motion for Attorney Fees. Signed by Judge James C. Mahan on 1/30/09. (Copies have been distributed pursuant to the NEF − ES) (Entered: 01/30/2009)
97 RESPONSE to 94 MOTION For Stay re 92 Order on Motion for Attorney Fees; filed by Plaintiff ACLU of Nevada. Replies due by 3/3/2009. (Attachments: # 1 Exhibits 1 and 2)(McLetchie, Margaret) Modified text on 3/5/2009 (SRK). (Entered: 02/17/2009)
98 First MOTION to Extend Time to File a Reply to the 97 Response to 94 MOTION For Stay re 92 Order on Motion for Attorney Fees; by Defendants P.K. O'Neill, Catherine Cortez Masto, Jerald Hafen, Bernard W. Curtis. Motion ripe 3/3/2009. (Palal, Binu) Modified text on 3/5/2009 (SRK). (Entered: 03/03/2009)
99 Submission of PROPOSED ORDER filed by Defendants P.K. O'Neill, Catherine Cortez Masto, Jerald Hafen, Bernard W. Curtis Proposed Order Granting 98 Defendants Motion For Enlargment Of Time To File Reply To Response To Motion For Stay Of Attorneys Fees. (Palal, Binu) (Entered: 03/03/2009)
100 ORDER Granting 98 Motion to Extend Time to File a Reply to the 94 MOTION For Stay re 92 Order on Motion for Attorney Fees. Replies due by 3/17/2008. Signed by Judge James C. Mahan on 03/05/09. (Copies have been distributed pursuant to the NEF − SRK) (Entered: 03/05/2009)
101 REPLY to Response to 94 MOTION For Stay re 92 Order on Motion for Attorney Fees, 98 First MOTION to Extend Time to File a Reply to the 97 Response to the 94 Motion for Stay re 92 Order on Motion for Attorney FeesFirst MOTION to Extend Time to File a Reply to the 97 Response to the 94 Motion for Stay re 92 Order on Motion for Attorney Fees ; filed by Defendants P.K. O'Neill, Catherine Cortez Masto, Jerald Hafen, Bernard W. Curtis. Reply For Defendants Stay Of Attorneys Fees (Palal, Binu) (Entered: 03/17/2009)
102 ORDER Denying 94 Motion to stay the order of attorneys' fees pending appeal. Signed by Judge James C. Mahan. (Copies have been distributed pursuant to the NEF − AXM) (Entered: 04/08/2009)
103 NOTICE OF APPEAL as to 102 Order on Motion by Defendants P.K. O'Neill, Catherine Cortez Masto, Jerald Hafen, Bernard W. Curtis. Filing fee $ 455, receipt number 09780000000001225773. (Palal, Binu) (Entered: 05/08/2009)
104 TRANSMITTAL of Notice of Appeal and Docket Sheet to US Court of Appeals re 103 Notice of Appeal. (AXM) (Entered: 05/11/2009)
105 CERTIFICATE OF RECORD on Appeal Transmitted to USCA re 103 Notice of Appeal. (AXM) (Entered: 05/11/2009)
106 Acknowledgment of Notice of Appeal from USCA re 103 Notice of Appeal. USCA Case Number 09−16008. (AXM) (Entered: 06/16/2009)
107 MOTION to Compel Compliance with Court Order and for Entry of an Order to Show Cause Why the Defendant Should Not Be Held in Contempt by Plaintiff ACLU of Nevada. Responses due by 7/7/2009. (Attachments: # 1 Declaration Margaret McLetchie Declaration)(McLetchie, Margaret) (Entered: 06/19/2009)
108 STIPULATION re 107 MOTION to Compel Compliance with Court Order and for Entry of an Order to Show Cause Why the Defendant Should Not Be Held in Contempt

Case: 2:08-cv-822 As of: 11/10/2017 09:06 AM PST 15 of 19

07/07/2009 07/15/2009
07/15/2009 07/20/2009 07/23/2009 10/20/2010 02/10/2012
03/27/2012 04/04/2012 04/11/2012 04/20/2012 05/18/2012 05/18/2012

; Stipulation to Extend Time For State Defendants to Submit Response to Plaintiff's Motion to Compel Compliance With Court Order and For Entry of an Order to Show Cause Why the Defendants Should Not Be Held in Contempt by Defendants P.K. O'Neill, Catherine Cortez Masto, Jerald Hafen, Bernard W. Curtis. (Palal, Binu) (Entered: 07/02/2009)
109 ORDER ON STIPULATION granting 108 Stipulation, for time to respond to 107 MOTION to Compel. Responses due by 7/21/2009. Signed by Judge James C. Mahan on 7/7/09. (Copies have been distributed pursuant to the NEF − AXM) (Entered: 07/07/2009)
110 ERROR: Wrong event selected. (SRK) First MOTION to Withdraw 107 MOTION to Compel Compliance with Court Order and for Entry of an Order to Show Cause Why the Defendant Should Not Be Held in Contempt by Plaintiff ACLU of Nevada. Motion ripe 7/15/2009. (McLetchie, Margaret) Modified on 7/20/2009. (Entered: 07/15/2009)
111 WITHDRAWAL of Motion re 107 MOTION to Compel Compliance with Court Order and for Entry of an Order to Show Cause Why the Defendant Should Not Be Held in Contempt; filed by Plaintiff ACLU of Nevada. (SRK) (Entered: 07/20/2009)
NOTICE of Docket Correction to 110 First MOTION to Withdraw : ERROR: Wrong event selected by Attorney Margaret A. McLetchie; CORRECTION: Court refiled document as 111 WITHDRAWAL of Motion. (no image attached)(SRK) (Entered: 07/20/2009)
112 ORDER Granting 110 First MOTION to Withdraw 107 MOTION to Compel. Signed by Judge James C. Mahan on 7/23/09. (Copies have been distributed pursuant to the NEF − AXM) (Entered: 07/23/2009)
113 NOTICE by Plaintiff ACLU of Nevada Notice of Withdrawal of Appearance of Lee Rowland (McLetchie, Margaret) (Entered: 10/20/2010)
114 MEMORANDUM/OPINION of USCA, Ninth Circuit, as to 83 103 Notices of Appeal. USCA reverses the district court with respect to the injunction placed on retroactive application of AB 579. With respect to SB 471, USCA dismisses the appeal as moot in view of the States representation that it will not apply retroactively the relevant provisions of SB 471, and USCA remands to the district court to consider whether to vacate the injunction order and to replace it with a binding consent decree. USCA affirms the district courts order denying a stay on payment of attorneys fees. Appeal No. 08−17471 is REVERSED in part, DISMISSED AS MOOT in part, and REMANDED. Each party shall bear its own costs. Appeal No. 09−16008 is AFFIRMED. (ECS) (Entered: 02/10/2012)
115 ORDER of USCA, Ninth Circuit, as to 103 Notice of Appeal. The petition for rehearing and the petition for rehearing en banc are DENIED. (ECS) (Entered: 03/28/2012)
116 MANDATE of USCA, Ninth Circuit, as t 114 USCA Memorandum/Opinion re 83 Notice of Appeal. REVERSED in part, DISMISSED AS MOOT in part, and REMANDED. (ECS) (Entered: 04/05/2012)
118 ORDER on Mandate as to 114 USCA Memorandum/Opinion and 116 USCA Mandate REVERSING and REMANDING 83 Notice of Appeal filed by Catherine Cortez Masto, Bernard W. Curtis, P.K. O'Neill, Jerald Hafen. Signed by Judge James C. Mahan on 4/11/12. (EDS) (Entered: 04/11/2012)
119 ORDER re 118 Order on Mandate. Parties shall have until 5/18/12, to file such supplemental briefing. Signed by Judge James C. Mahan on 4/20/12. (Copies have been distributed pursuant to the NEF − EDS) (Entered: 04/20/2012)
120 SUPPLEMENT Brief re: 119 ORDER; filed by Defendants Bernard W. Curtis, Jerald Hafen, Catherine Cortez Masto, P.K. O'Neill. (Palal, Binu) added docket entry relationship on 5/22/2012 (RFJ). (Entered: 05/18/2012)
121 BRIEF re: 119 ORDER; filed by Plaintiff ACLU of Nevada. (Lichtenstein, Allen) added docket entry relationship on 5/22/2012 (RFJ). (Entered: 05/18/2012)

Case: 2:08-cv-822 As of: 11/10/2017 09:06 AM PST 16 of 19

06/18/2012
06/26/2012 08/06/2012 09/06/2012
10/29/2012 11/06/2012 11/07/2012 11/14/2012 11/20/2012 11/26/2012 11/30/2012 12/03/2012 12/11/2012

122 ORDER of USCA, Ninth Circuit, as to 103 Notice of Appeal. The ACLUs motion for costs and fees is granted. We refer the determination of the appropriate amount of a reasonable fee to Ninth Circuit Appellate Commissioner Peter Shaw. The Commissioner shall take into consideration the ACLUs receipt in district court of attorneys fees on issues with respect to which it has not prevailed. The Commissioners determination of a reasonable fee shall be subject to reconsideration by the panel. (ECS) (Entered: 06/18/2012)
123 ORDER that this Court finds that "no consent decree [was] negotiated" and thus, the previous injunction "remains in vigor." Until and unless such a decree is provided to, and approved by, the court, the permanent injunction remains in full effect. Signed by Judge James C. Mahan on 6/26/12. (Copies have been distributed pursuant to the NEF − EDS) (Entered: 06/26/2012)
124 MANDATE of USCA, Ninth Circuit, as to 114 USCA Memorandum/Opinion AFFIRMING the judgment of the District Court re 103 Notice of Appeal. (MMM) (Entered: 08/08/2012)
127 ORDER of USCA, Ninth Circuit, as to 103 Notice of Appeal filed by Catherine Cortez Masto, Bernard W. Curtis, P.K. O'Neill, and Jerald Hafen. The parties have informed the court that they have settled the attorneys fees dispute, and that as part of the settlement, the prevailing plaintiffs have greed to withdraw their motions for attorneys fees and costs. Accordingly, the court shall take no further action on the plaintiffs motions for attorneys fees and costs. (AC) (Entered: 09/12/2012)
128 MOTION to Clarify Scope of Injunction by Defendants Bernard W. Curtis, Jerald Hafen, Catherine Cortez Masto, P.K. O'Neill. Responses due by 11/15/2012. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Buchanan, Kimberly) (Entered: 10/29/2012)
129 MOTION for Leave to Intervene RE: Defendants' Motion to Clarify Scope of Injunctions by David Roger. (Barker, Stephanie) Modified on 11/7/2012 (MAJ). (Entered: 11/06/2012)
130 Notice of Docket Correction to 129 NOTICE. ERROR: Wrong event used; image does not match event selected. CORRECTION: Court modified entry as 129 MOTION for Leave to Intervene Re: Defendants' Motion to Clarify Scope of Injunctions. (MAJ) (Entered: 11/07/2012)
131 STIPULATION to Extend Time For Plaintiffs To Submit A Response To Defendants' Motion To Clarify Scope Of Injunction re 128 MOTION to Clarify Scope of Injunction by Defendants Bernard W. Curtis, Jerald Hafen, Catherine Cortez Masto, P.K. O'Neill. Motion ripe 11/14/2012. (Buchanan, Kimberly) Modified on 11/15/2012. (MAJ) (Entered: 11/14/2012)
132 RESPONSE to 129 MOTION for Leave to Intervene Re: Defendants' Motion to Clarify Scope of Injunctions, filed by Plaintiff ACLU of Nevada. Does A−S, Does 1−8 Replies due by 11/30/2012. (Lichtenstein, Allen) (Entered: 11/20/2012)
133 RESPONSE to 128 MOTION to Clarify Scope of Injunction, filed by Plaintiff ACLU of Nevada. Replies due by 12/6/2012. (Attachments: # 1 Exhibit Exhibit A)(Lichtenstein, Allen) (Entered: 11/26/2012)
134 REPLY to Response to 129 MOTION for Leave to Intervene Re: Defendants' Motion to Clarify Scope of Injunctions filed by Defendant David Roger. (Barker, Stephanie) (Entered: 11/30/2012)
135 NON−OPPOSITION to 129 MOTION for Leave to Intervene Re: Defendants' Motion to Clarify Scope of Injunctions ; filed by Defendants Bernard W. Curtis, Jerald Hafen, Catherine Cortez Masto, P.K. O'Neill. Defendants' Non−Opposition to Motion for Leave to Intervene (Buchanan, Kimberly) (Entered: 12/03/2012)
136 REPLY to Response to 128 MOTION to Clarify Scope of Injunction filed by Defendants Bernard W. Curtis, Jerald Hafen, Catherine Cortez Masto, P.K. O'Neill. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Buchanan, Kimberly) (Entered: 12/11/2012)

Case: 2:08-cv-822 As of: 11/10/2017 09:06 AM PST 17 of 19

12/12/2012 12/12/2012 01/23/2013 01/24/2013
02/01/2013 02/07/2013 02/08/2013 02/20/2013 02/26/2013 11/25/2013 12/24/2013
12/27/2013 03/25/2014

137 NOTICE of Hearing on 129 MOTION for Leave to Intervene Re: Defendants' Motion to Clarify Scope of Injunctions : Motion Hearing set for 1/24/2013 10:00 AM in LV Courtroom 6A before Judge James C. Mahan. (no image attached)(SRB) (Entered: 12/12/2012)
138 NOTICE of Hearing on 128 MOTION to Clarify Scope of Injunction : Motion Hearing set for 1/24/2013 10:30 AM in LV Courtroom 4A before Judge James C. Mahan. (no image attached)(SRB) (Entered: 12/12/2012)
139 MINUTE ORDER IN CHAMBERS of the Honorable Judge James C. Mahan, on 1/23/2013. denying as moot 131 Motion/stipulation to Extend Time.The parties filed their briefings in accordance with the dates in motion/stipulation 131. It is denied as moot. (Entered: 01/23/2013)
140 MINUTES OF PROCEEDINGS − Motion Hearing held on 1/24/2013 before Judge James C. Mahan. Crtrm Administrator: David Oakes; Pla Counsel: Allen Lichtenstein; Def Counsel: Kimberly Buchanan, Binu Palal, Adam Honey, Stephanie Barker; Court Reporter/FTR #: Joy Garner; Time of Hearing: 10:00 a.m.; Courtroom: 6A; Representations of counsel were made. COURT ORDERED: granting 128 Motion.; denying 129 Motion.; ( Submission of Proposed Order obo defendant due by 1/31/2013.) (Copies have been distributed pursuant to the NEF − DXO) (Entered: 01/25/2013)
141 Submission of PROPOSED ORDER filed by Defendants Bernard W. Curtis, Jerald Hafen, Catherine Cortez Masto, P.K. O'Neill Submission of Proposed Order Clarifying Injunction as to Senate Bill 471. (Attachments: # 1 Exhibit A)(Buchanan, Kimberly) (Entered: 02/01/2013)
142 Submission of PROPOSED ORDER filed by Defendants Bernard W. Curtis, Jerald Hafen, Catherine Cortez Masto, P.K. O'Neill Submission of Amended Proposed Order Clarifying Injunction as to Senate Bill 471. (Attachments: # 1 Exhibit A)(Buchanan, Kimberly) (Entered: 02/07/2013)
143 ORDER Clarifying Injunction as to Senate Bill 471 re 128 Motion to Clarify Scope of Injunction. Signed by Judge James C. Mahan on 02/08/2013. (Copies have been distributed pursuant to the NEF − AC) (Entered: 02/08/2013)
144 MOTION to remove attorney(s) Nick Crosby from the Electronic Service List in this case, by Defendant Douglas Gillespie. Motion ripe 2/20/2013. (Crosby, Nicholas) (Entered: 02/20/2013)
145 ORDER Granting 144 Defendant's Motion to Remove Attorney from Electronic Service List. Signed by Magistrate Judge Peggy A. Leen on 02/26/2013. (Copies have been distributed pursuant to the NEF − AC) (Entered: 02/26/2013)
146 NOTICE TO COUNSEL PURSUANT TO LOCAL RULE 41−1. If no action is taken in this case within thirty (30) days, the Clerk's office will make application to the Court for dismissal for want of prosecution. LR 41−1 dismissal deadline set for 12/25/2013. (ASB) (Entered: 11/25/2013)
147 STIPULATION FOR EXTENSION OF TIME (First Request) re 146 Notice re 41−1 Dismissal, ; by Plaintiff ACLU of Nevada, Intervenor Parties D. C., E. C., R. D., B. J. H., N. J., L. M., P. M., R. M., W. D. M., J. S., M. L. T., R. T., C. T. W., M. W., R. W., Defendants Bernard W. Curtis, Joseph Forti, Richard A. Gammick, Douglas Gillespie, Jerald Hafen, Michael Haley, Catherine Cortez Masto, P.K. O'Neill, Richard Perkins, Michael Poehlman, David Roger. (Lichtenstein, Allen) (Entered: 12/24/2013)
148 ORDER that this case shall remain open. Status Conference set for 3/27/2014 10:00 AM in LV Courtroom 6A before Judge James C. Mahan. Signed by Judge James C. Mahan on 12/27/2013. (Copies have been distributed pursuant to the NEF − AC) (Entered: 12/27/2013)
149 Joint MOTION for More Definite Statement re: 143 ORDER Clarifying Injunction as to Senate Bill 471; filed by Plaintiff ACLU of Nevada, Defendants Bernard W. Curtis, Jerald Hafen, Catherine Cortez Masto, P.K. O'Neill. Responses due by 4/11/2014. (Buchanan, Kimberly) (Entered: 03/25/2014)

Case: 2:08-cv-822 As of: 11/10/2017 09:06 AM PST 18 of 19

03/27/2014

150 MINUTES OF PROCEEDINGS − Status Conference held on 3/27/2014 before Judge James C. Mahan. Crtrm Administrator: David Oakes; Pla Counsel: Allen Lichtenstein, Margaret McLetchie; Def Counsel: Kimberly Buchanan; Court Reporter/FTR #: Kathy Eismann; Time of Hearing: 10:00 a.m.; Courtroom: 6A;

The court stated there seems to be some question concerning the scope of the injunction, however no one explained to the court what that was.

Mr. Lichtenstein made representations to the court.

Ms. Buchanan stated it would be better to detail her position in the form of a briefing schedule.

Ms. McLetchie requested the defendant's submit a brief first so that the plaintiff's can understand exactly what the defendant's want to do.

Motion Hearing set for 6/23/2014 10:00 AM in LV Courtroom 6A before Judge James C. Mahan.

Brief obo defendant is due by 4/24/2014.

Responses obo plaintiff is due by 5/22/2014

Replies obo defendants' is due by 6/9/2014.

04/24/2014 05/22/2014 06/09/2014 06/18/2014 06/25/2014

(no image attached) (Copies have been distributed pursuant to the NEF − DXO) (Entered: 03/27/2014)
151 OPENING BRIEF filed by Defendants Bernard W. Curtis, Jerald Hafen, Catherine Cortez Masto, P.K. O'Neill. (Attachments: # 1 Exhibit A)(Buchanan, Kimberly) (Entered: 04/24/2014)
152 BRIEF re 151 Opening Brief ; filed by Plaintiff ACLU of Nevada. (Lichtenstein, Allen) (Entered: 05/22/2014)
153 BRIEF filed by Defendants Bernard W. Curtis, Jerald Hafen, Catherine Cortez Masto, P.K. O'Neill. Reply Brief on Movement and Residency Restrictions Prior to Senate Bill 471 (Buchanan, Kimberly) (Entered: 06/09/2014)
Set/Reset Hearings: Status hearing set for 6/23/2014 10:30 AM is hereby VACATED and rescheduled for 6/25/2014 11:00 AM in LV Courtroom 6A before Judge James C. Mahan. (SRB) (Entered: 06/18/2014)
154 MINUTES OF PROCEEDINGS − Status Conference held on 6/25/2014 before Judge James C. Mahan. Crtrm Administrator: David Oakes; Pla Counsel: Allen Lichtenstein, Margaret McLetchie; Def Counsel: Kimberly Buchanan; Court Reporter/FTR #: Kathy Eismann; Time of Hearing: 11:00 a.m., to 11:30 a.m.; Courtroom: 6A;

After representations of counsel are made.

The Court Ordered the Consent Decree had already been entered, and is outside the scope of litigation.

07/16/2014 08/05/2014 08/11/2014

(no image attached) (Copies have been distributed pursuant to the NEF − DXO) (Entered: 06/26/2014)
155 ORDER Granting 149 Motion for More Definite Statement. Signed by Judge James C. Mahan on 7/16/2014. (Copies have been distributed pursuant to the NEF − SLR) (Entered: 07/16/2014)
156 MOTION to remove attorney(s) Binu Palal, D. Powell, D. Potnar, T. Fuller, B. Joiner from the Electronic Service List in this case, by Defendants Bernard W. Curtis, Jerald Hafen, Catherine Cortez Masto, P.K. O'Neill. Motion ripe 8/5/2014. (Buchanan, Kimberly) (Entered: 08/05/2014)
157 ORDER Granting 156 Motion to Remove former Deputy Attorney General, Binu Palal from Electronic Service List. Signed by Magistrate Judge Peggy A. Leen on

Case: 2:08-cv-822 As of: 11/10/2017 09:06 AM PST 19 of 19

05/11/2015
06/10/2015 06/10/2015 06/12/2015 07/07/2015

8/11/2014. (Copies have been distributed pursuant to the NEF − SLR) (Entered: 08/11/2014)
158 NOTICE TO COUNSEL PURSUANT TO LOCAL RULE 41−1. If no action is taken in this case within thirty (30) days, the Clerk's office will make application to the Court for dismissal for want of prosecution. LR 41−1 dismissal deadline set for 6/10/2015. (RFJ) (Entered: 05/11/2015)
159 STIPULATION of Dismissal by Plaintiff ACLU of Nevada. (McLetchie, Margaret) Corrected image 160 added on 6/10/2015. (EDS). (Entered: 06/10/2015)
160 NOTICE of Corrected Image/Document re 159 Stipulation of Dismissal by Plaintiff ACLU of Nevada. (Service of corrected image is attached). (McLetchie, Margaret) (Entered: 06/10/2015)
161 ORDER DISMISSING CASE with prejudice Granting 159 STIPULATION of Dismissal. Signed by Judge James C. Mahan on 6/12/15. (Copies have been distributed pursuant to the NEF − TR) (Entered: 06/12/2015)
162 TRANSCRIPT of Proceedings, 154 Status Conference, held on June 25, 2014, before Judge James C. Mahan. Court Reporter: Kathy Eismann, 702−431−1919. Transcript may be viewed at the court public terminal or purchased through the Court Reporter using the court's Transcript Order form available on our website, at www.nvd.uscourts.gov, before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER Redaction Request due 7/28/2015. Redacted Transcript Deadline set for 8/7/2015. Release of Transcript Restriction set for 10/5/2015. (KE) (Entered: 07/07/2015)