Lawyer for 24 sex offenders says Nevada registration law is unconstitutional

CARSON CITY — An attorney representing 24 unnamed previously convicted sex offenders told the Nevada Supreme Court on Monday that a state law that would change the way such individuals are classified is a "one size fits all' approach that is inappropriate and unconstitutional.

Alina Shell argued that Assembly Bill 579, passed by lawmakers in 2007 to make the state compliant with the federal Adam Walsh Act, should be prohibited from taking effect until the constitutional claims can be resolved in court. The law was named after Adam Walsh, the 6-year-old son of TV personality John Walsh, who was abducted and murdered in Hollywood, Fla., in 1981.

Shell was appealing a January 2014 ruling by Clark County District Judge Douglas Smith that denied a request for a temporary restraining order to stop enforcement of the law while the constitutional claims are litigated.

The law has not yet been enforced. An effort to fix what critics said were flaws in the original law was successful in the 2015 session of the Legislature. But that measure, Senate Bill 99, was vetoed by Gov. Brian Sandoval because it also eliminated a requirement that certain sex offenders stay at least 500 feet away from schools, parks and other places frequented by children.

AB579 would create a classification system for sex offenders that places them into one of three risk tiers based solely on their crime of conviction.

Shell said the new rules will treat all convicted sex offenders the same whether or not they are rehabilitated, and subject them to onerous and humiliating reporting requirements.

"That is not the way sentencing and registration should work," she said.

Shell said the law violates the separation of powers doctrine because it usurps judicial decision making by a sentencing court. That, she said, is a constitutional argument that needs to be litigated.

Other issues raised include due process and equal protection violations.

But Kimberly Buchanan, a senior deputy attorney general, argued that many of the constitutional claims raised by Shell on behalf of the 24 "John Does" have been resolved in prior cases, including a challenge to the law made by the ACLU of Nevada in 2008. The 9th Circuit Court of Appeals in 2012 ruled in the ACLU challenge that the law was constitutional, including a retroactive application covering sex offenders who have already been convicted.

The Nevada Supreme Court also denied a challenge to the law in 2013, Buchanan said.

But Shell said the separation of powers argument, while raised in U.S. District Court, was not addressed in the 9th circuit opinion.

The court took the case under submission and will rule later.

Contact Sean Whaley at swhaley@reviewjournal.com or 775-687-3900. Find him on Twitter: @seanw801