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Tuesday, May 03, 2011
Ind. Decisions - Two Indiana opinions today from 7th Circuit
In U.S. v. Leach (ND Ind., Miller), an 8-page opinion, Judge Wood writes:
Donald Leach moved from Indiana to South Carolina in late 2008 without promptly notifying government officials in either state. This would be unremarkable if Leach had not been convicted of a sex offense in 1990, but he had. That conviction triggered a requirement pursuant to the Sex Offender Registration and Notification Act (“SORNA”), 18 U.S.C. § 2250(a), to register with Indiana and South Carolina authorities when he moved across state lines. Unbeknownst to Leach, an anonymous caller reported to Indiana officials that Leach had moved out of state shortly after his departure. In February 2009, Leach tardily passed the same information along to the Indiana child support enforcement office. At no time did he register with the authorities in South Carolina. The following week, a deputy United States Marshal and a local officer arrested Leach, who was then returned to Indiana, where he was indicted for knowingly failing to register as a sex offender after traveling in interstate commerce in violation of SORNA. Leach moved to dismiss his indictment, arguing that SORNA violates the Ex Post Facto Clause of the United States and Indiana Constitutions. The district court denied Leach’s motion to dismiss, and Leach entered a conditional guilty plea while preserving his right to appeal that sole issue. We find no ex post facto violation and affirm the judgment of the district court. * * *ILB: See this long list of earlier ILB entries re SORNA.
Leach spends considerable effort arguing that SORNA violates the Ex Post Facto Clause of the Indiana Constitution. In support, he relies on the Indiana Supreme Court’s recent opinion invalidating portions of the Indiana sex offender registration statute on state constitutional grounds. See Wallace v. State, 905 N.E.2d 371 (Ind. 2009). But the question before us is not whether Indiana has adopted a compliant registration system (an issue relating only to its entitlement to certain federal funds, see Carr, 130 S. Ct. at 2232), nor is it whether SORNA—a federal statute—“complies” with the law of any particular state. The Supremacy Clause establishes that state constitutional provisions cannot override federal statutes. See U.S. CONST. art. VI, cl. 2; see also United States v. Baer, 235 F.3d 561, 562 (10th Cir. 2000). And even if Indiana’s system were flawed (a point on which we express no opinion), Leach was also required to register in South Carolina and did not. We are thus left only with Leach’s argument that SORNA violates the Ex Post Facto Clause of the United States Constitution. We review a challenge to the constitutional validity of a federal statute de novo. United States v. Sidwell, 440 F.3d 865, 870 (7th Cir. 2006). * * *
Section 2250(a) imposes up to ten years’ imprisonment for failure to comply with SORNA’s registration requirements. This is certainly a penal statute, and so the only question is whether it is retrospective. A sex offender violates the statute when, at any time after SORNA was enacted, he travels in interstate commerce and then fails to register. See Carr, 130 S. Ct. at 2232-33. Because the law targets only the conduct undertaken by convicted sex offenders after its enactment, it does not violate the Ex Post Facto Clause. * * *
To violate the Ex Post Facto Clause, moreover, a law must be both retrospective and penal. But whether a comprehensive registration regime targeting only sex offenders is penal, as Leach concedes, is not an open question. In Smith v. Doe, 538 U.S. 84 (2003), the Supreme Court held that an Alaska sex offender registration and notification statute posed no ex post facto violation because it was a civil, rather than penal, statute. Citing Smith, we observed in Dixon v. United States, a case that did not squarely present the issue, that a defendant could not challenge SORNA’s registration requirements on ex post facto grounds because the statute is, in fact, regulatory. 551 F.3d 578 (7th Cir. 2008), rev’d on other grounds sub nom. Carr v. United States, 130 S. Ct. 2229 (2010). Leach has not identified any aspects of SORNA’s registration provisions that distinguish this case from Smith. This is unsurprising, since we too are unable to find any meaningful distinctions. Therefore, we join our sister circuits in concluding that SORNA is not an ex post facto law. [citations omitted]
In Adkins v. VIM Recycling (ND Ind., Simon), a 61-page, 2-1 opinion, Judge Hamilton writes:
This appeal presents questions regarding the citizen-suit provisions in the federal Resource Conservation and Recovery Act (RCRA), 42 U.S.C. § 6901 et seq., including when a narrower government enforcement lawsuit may preclude a broader citizen suit, and how the citizen-suit provisions interact with the federalism doctrines of Colorado River and Burford abstention. The district court in this case relied on statutory provisions and the abstention doctrines to dismiss the plaintiffs’ citizen suit under RCRA. We reverse and remand to allow the plaintiffs to pursue their citizen suit.
We consider here the relationships among three lawsuits: two state court actions filed by a state environmental agency and the federal citizen suit. * * *
V. Conclusion The plaintiffs’ RCRA citizen suit should go forward, except as to the violation claims concerning “C” grade waste that were part of the first IDEM lawsuit against defendant VIM. In all other respects, the plaintiffs met the statutory requirements of RCRA. Because the plaintiffs satisfied the statutory requirements for bringing their citizen suit, abstention doctrines should not have been used to block the plaintiffs from pursuing the avenues that Congress gave them in RCRA. The district court’s judgment dismissing the case is REVERSED and the action is REMANDED for further proceedings.
[p. 51] RIPPLE, Circuit Judge, concurring in part and dissenting in part. I join the majority opinion on several issues, but I cannot agree with the majority’s discussion and conclusion regarding abstention under Colorado River Water Conservation District v. United States, 424 U.S. 800 (1976). I therefore must respectfully dissent. * * *
What does seem apparent in this case is that simultaneous litigation of the actions and simultaneous supervision of the remediation process by state and federal courts will be a recipe for delay, confusion and wasted judicial resources. These concerns were the precise motivations in Colorado River, and it is not clear how any of the plaintiffs’ interests are impaired if the federal case is stayed. Accordingly, I must respectfully dissent from removing from the district court’s discretion the decision to stay the plaintiffs’ case upon invoking abstention under the Colorado River doctrine.
Posted by Marcia Oddi on May 3, 2011 12:28 PM
Posted to Ind. (7th Cir.) Decisions