[00:00] Introduction: Welcome to Registry Matters, an independent production. Our opinions are our own, and we don’t take instructions from anyone but us. We are thankful for the support of our patrons. You make what we do here possible. And always remember, FYP.
[00:23] Andy: Recording live from FYP Studios East and West. West, transmitting across the internet. This is episode 385 of Registry Matters. Larry, it’s a Saturday evening. How are you? Doing awesome. I sure missed you last week. Where were you?
Larry: Oh my God, dude.
Andy: I just showed somebody a picture. It’s hard to describe, but I have a standing desk because it’s good for you. I mean, I sit here all day. I’m here for 12, 14 hours a day doing day job stuff. And my watch says, hey, it’s time for you to stand. I was like, okay, I’ll stand. And I press the button and it goes, no. And I had to reset it. To reset it, you have to lower the desk all the way down to the very bottom. Which is, seriously, you could almost sit on the floor. If you’re watching the video, like my arms are just up to my shoulders. Like you could almost work on it sitting on the floor. And then I get it down all the way and reset it. It’s leveled and all this stuff. Then I press up and only the right side starts going up. Only the right side. And I was like, that’s not good. Everything is bolted and screwed down on the desk. So I wasn’t really worried about anything falling. But maybe we should try to reset it again. Pressing the two buttons to reset it, it just went straight down at its angle. It got down to the bottom. That’s not reset. And pressing up made it worse. So it was at a 45-degree angle. I can’t work that way. Tried putting a floor jack and jack stands in the garage. Got that out. Tried jacking it, but it was a complete shit show. A mess. It wasn’t funny.
Larry: Well, all righty. Well, I’m sorry that that happened.
[02:45] Andy: Yeah. You know, whatever. So now I don’t have a standing desk. Now I’m back to the peasant land of having to just sit here in one static position. I’m going to have to actually get up and walk around to get my steps in. When my watch says stand up, I’m going to have to do something and go take a walk or something. All right. Well,
[03:05] Larry: what are we doing tonight? We have a case from the United States district court, Northern district of Florida. That’s quite fascinating. In addition, we plan to briefly discuss the situation in New Mexico of representative, former representative, Cheryl Williams Stapleton, that somehow landed on your radar way across the country. And also we have a topic that was interesting on the Narsol list serve about a campaign donation from a PFR.
[03:36] Andy: Oh, right. That sounds interesting on its own.
[03:40] Announcer: One man in Indiana, no lawyer, no law degree, and a state that decided his finished 10-year term should suddenly last forever. He walked into federal court alone and walked out with an injunction. Andy and Larry break down exactly how he did it. Registry Matters is a non-profit, and your support literally funds this fight. Become a patron at patreon.com/registrymatters.
[04:08] Andy: All right, well then let’s get back to it. So we’re going to talk about this former state representative person.
[04:17] Larry: Unless you want to do the Chicago Sun-Times first with a representative I met, the campaign donation that was made by the PFR.
[04:26] Andy: You tell me whichever one you want to do first. Yeah, let’s do Bailey first. Okay. Darren Bailey. So,
[04:33] Larry: Yeah, go ahead. This is an article from the Chicago Sun-Times and it generated quite a bit of discussion because the Republican candidate for governor, Darren Bailey, received a donation from a person with a sex offense conviction who now pastors a church. And of all ungodly things, uh, candidate Bailey attended a service at that church with the PFR in the pulpit. When it became public, then candidate Bailey announced he was giving the donation to charity and everybody opined on the listserv that he should have just grown a pair and stood up for what was right by saying, I did it. I’m not ashamed of taking the donation. I’m glad to have the person participating in my campaign. Try to explain why that wasn’t a good stance for a person to take.
[05:40] Andy: You said two phrases earlier that I need you to elaborate on. The first was “it’s Shay,” and the second was “grow a pair.” Could you describe what those mean for our audience?
[06:02] Larry: I’m not sure how you would grow a pair if you don’t have them, but uh, in terms of the “itch” phrase, that’s pig Latin. Did you ever speak pig Latin when you were in school?
[06:12] Andy: I’m not that sophisticated to know how to speak lig patent, so okay.
[06:16] Larry: Sounds like you don’t. Back in the day, for those who are under 40, back in the day we didn’t have texting capacity and we had to have a coded way to discuss things so that adults wouldn’t know what we were talking about.
[06:30] Andy: Yeah, I’m sure they didn’t know what you were saying.
[06:32] Larry: Course, but that was what we thought. But of course, they knew exactly what we were saying. You reverse the syllables with a little bit of extra stuff, like if you were going to pronounce “f-u-c-k,” it would be “k-uf.” For example, if you wanted to say “y-u-u,” it would be “u-y.”
[07:05] Andy: I think we just left. I’m gonna have to put an end on the program now.
[07:16] Larry: Anyway, this is about the governorship candidacy in Illinois. The incumbent has virtually no chance of losing; it would be a miracle for Governor Pritzker to lose with all the funding from his family and the fact that it’s a heavily Democratic state, except for a few slivers. It’s largely a Democratic state, so it’d be an extreme long shot. But the reason why Darren Bailey did what he did is because that’s what he had to do to get the mob off his back—the mob being people who start bugging him about why he’s associating with a PFR, someone convicted of a vile sex offense. So Mr. Bailey has a choice: whether he’s going to concentrate on messaging what his governorship would look like or try to convince the public that they should like former PFRs. That’s an easy choice for a candidate to make; it’s not complicated like people have tried to make it. It’s a simple choice: do I want to be distracted by this, or do I want to put it behind me?
[08:25] Andy: You’d imagine you’d want it to go away as quickly as possible.
[08:28] Larry: The way to make it go away is either to return the donation or give it to charity. That’s what candidate Bailey chose to do. Now, I’m not defending the fact that the public isn’t very forgiving and despite our Judeo-Christian values of forgiveness and second chances, we really don’t do that; that’s horrible. But from a political perspective, he did what he felt like he had to do, and that helps get the issue moved off front and center so he can get on with attempting to unseat the incumbent governor. That’s what he’s doing. I’m not voting for him—I don’t live there and I’m not supporting him—but this is the explanation of why he did what he did.
[09:11] Andy: Would you like to address why it matters if a candidate receives a donation from someone with a criminal record? Like, all kinds of “dirty” people donate money to different campaigns. Who cares that this person received a donation from this individual?
[09:24] Larry: It would be internal to the campaign and the Pritzker organization. They would be watching the campaign filings and running names. Perhaps they were tipped off by someone who recognized the name, or perhaps they just started running names and discovered that this guy had a conviction. They wanted to smear him; that’s what they want to do. This likely came straight from the Democratic Party in Illinois.
[09:51] Andy: Is there an angle for the other candidate to try something similar? To find anyone who has dirt and say, “Well, you took campaign donations from these terrible people too.”
[10:02] Larry: Yes, if he has the financial resources to do that. Pritzker is well-funded. Uh, I don’t know; I don’t live in Illinois, so I don’t know how well funded Bailey is. When you’re in a minority situation and if it’s considered by the Republican National Committee to be an unwinnable race, you generally don’t get a lot of funds from out of state. So I suspect that Bailey is coming up very short on money, but he would absolutely be able to do that. He could do the same thing, but then that puts politics down in the mud barrel where it shouldn’t be. We should be talking about issues and this is really not an issue. This guy’s pastoring a church; the crime happened when he was 17 or maybe a long time ago.
[10:44] Andy: Well, I’m the title says a 17-year-old girl now. I didn’t read through uh in the early 2000s, I don’t know that it says how old he was at the time so but whatever okay. I just i’m trying like as you just said we should be talking about the issues like the cost of gas or whether we should be you know throwing bombs into other countries and what like those are the things that we should be talking about. The issues like the things that we should be discussing, and at a state level like those wouldn’t even really be the conversations other than gas prices and food prices and can we get a crosswalk at some particular intersection those would be your state level issues public
[11:21] Larry: Schools, university-level funding, uh, the correctional system in Illinois. There’d be a lot of state issues you could talk about. Medicaid reform, uh, there’s on and on things that states are responsible for doing but they do this folks because it works. Sure, it’s kind of like the example I gave on the list sir when I was a student, I used to be on the same-sex marriage of a girl who responded several times, I think three times total. They used to do this with same-sex marriage: The people from the conservative side of the aisle now this happens not to be coming from the conservative; this is coming from the liberal side of the aisle but the conservative side of the aisle would say god made Adam and Eve, not Adam and Steve, and marriage is a holy matrimony between one man and one woman. And you could get a standing ovation and the only way to get around that is if you don’t get married, you’re not going to get married many parts of the country you can no longer do that because we the people have changed where we are now. You’re going to get booed off of the stage in most parts of the country if you do that. If you were to give that speech today when we the people decide, if we could flood the democrat party’s phone lines with tens of thousands of phone calls and emails saying how repugnant we find this, and that we might just change our vote because of this, this would stop but until we the people change where we are, this is not going to go away.
[12:41] Guest 1: A Michigan man reported his address change early, trying to do everything right. The previous tenant would not move out, and he was 19 days off. The state prosecuted him for it. That overreach may now unravel convictions for a whole class of people.
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[13:10] Andy: All right, well then, while I was driving home from New York today, I fired up the shortwave radio and heard a little news segment about something out of New Mexico that I thought we should talk about.
[13:26] Larry: You did. And it’s on shortwave now? They’re talking about this. I thought it was just in traditional media.
[13:35] Andy: Well, how am I gonna pick up New Mexico news while I’m driving down the interstate? So yeah, it came up on shortwave. I was picking up your local radio station over there.
[13:48] Larry: It was KKOB.
[13:52] Larry: It was KKOB.
[13:55] Andy: There was an extra K in there, if I’m not mistaken.
[13:58] Larry: Right. So let’s talk about this. All right, you’ve got to set it up okay.
[14:08] Andy: Well, this is former New Mexico state representative Cheryl Williams Stapleton and her friend Joseph Johnson. After a nine-day trial, a federal jury convicted them on all counts stemming from a years-long scheme where Stapleton used her position at Albuquerque Public Schools and in the legislature to steer millions of dollars in funding to Johnson’s company and secretly received approximately $1.15 million from the company. And what is this about? I thought politics was clean in the land of enchantment.
[14:53] Larry: Not really. This trial was one of the biggest we’ve had in some time. According to court documents and evidence presented at the trial, from July 2013 through June 2021, Stapleton used her position as director of the Perkins Project in career and technical education at Albuquerque Public Schools to direct approximately 40% of APS’s non-personal CTE funding to Robotics Management Learning Systems in Washington, D.C., owned by and operated by Mr. Johnson, her co-defendant.
[15:43] Andy: Yeah, and the government says the funds were for the CyberQuest software in APS classrooms. From 2013 through 2021, APS paid Robotics approximately $3.25 million under contracts for the software and related services, including approximately $2.5 million in federal Perkins funds. What are Perkins funds?
[16:06] Larry: I don’t know. They tried to describe that on the stories, but it went over my head. But during that time, Stapleton served as New Mexico’s state representative for District 19, a seat she held from 1995 through 2021, and was the majority floor leader from 2017 through 2021. Now, that’s the person who runs the calendar, calls bills up for discussion, leads on people to vote a certain way. But while serving in legislation, she sponsored and advocated for legislation and capital outlays that directed additional funding to APS for CTE programs. She then used her position at APS to direct CTE funding to Robotics and facilitate contracts for the company through procurement exemptions, sole source contracts, and later a request for proposals. Sole source contracts, I’m not really clear on, but I think it’s where you don’t have to put it out for a proposal. If it’s less than a certain amount, you can just sign it. And if it’s above a certain amount, you have to do an RFP.
[17:13] Andy: All right. And then the story goes along and says, APS’s CTE official, Stapleton, reviewed and approved Robotics invoices and directed employees under her supervision to approve them. APS issued checks to Robotics and mailed them to a post office box in Albuquerque. Stapleton personally retrieved APS’s checks and mailed them to a post office box and deposited them into the Robotics bank account. Johnson provided blank checks from the Robotics business account, which Stapleton used to distribute Robotics funds for her own benefit.
[17:44] Larry: Now, what was revealed in the news, I didn’t put it in script, but I think it’s funny. The federal investigators worked with the post office so that they could have her on camera nice and crispy clear when she was picking up the checks. And then they surveilled her to the bank as she was negotiating the checks. But nonetheless, it says Stapleton used the Robotics checks to obtain approximately $1.152 million, or approximately 30% of the funds paid to Robotics. She directed approximately $286,000 to Williams & Associates, a company she owned and controlled, $313,000 to Taste of the Caribbean, a restaurant she owned, and then she directed approximately $313,000 to her family members’ operated entities. Now, you’re going to have to at some point laugh about this. $479,000 to a non-profit entity, Staple & Johnson, which she operated together, and $72,000 to other parties for goods and services benefiting Stapleton, including remodeling work at her home. Please say this is funny.
[18:49] Andy: I mean, no, it’s not funny. But is there a lesson here, Larry?
[18:57] Larry: Well, the primary lesson is not to be a crook when you’re in public office. Because you’ll eventually likely get caught. That’s the lesson I would say: don’t be a crook. But if you must be a crook, you’ve got to get better than that. Can you think how stupid you’d have to be to direct all this money to businesses that you own?
[19:16] Andy: I mean, that does seem self-serving and just on the nose, waiting for someone to nab you.
[19:23] Larry: So yeah, the other lesson is that don’t do this unless you enjoy serving prison time. She’s 69 years old. And the federal judge allowed her to remain free pending sentencing. And she’s a dual citizen. So I’m sure they took her passport from both nations. But man, if she decides to flee the country, that will be hilarious.
[19:47] Andy: Perhaps we know a pilot in the audience who could be for hire. Who may be listening as we speak. Maybe. Alrighty then. So be better at thieving is what you’re saying.
[20:02] Larry: Well, I don’t encourage you to be a thief. But if you feel you must, you really should reach out to me because I think I’m better at it than most people are.
[20:14] Andy: Maybe we should have a little side program on how people could get in on this.
[20:18] Larry: If you must do it, you’ve got to be just a tad bit smarter than that. And don’t get arrogant. And when you get too blatant with what you’re doing, it becomes obvious to people if they’re paying attention. If you’re a big champion of all this funding, at some point, I would ask the question: What is in this? She’s already on the APS payroll. And she’s in the legislature. And she is—alrighty—that’s a little fishy to me, because I’m just a suspicious person by nature.
[20:51] Andy: Well, then the one last thing that I got to say is, wouldn’t this be club fed? I mean, she’s not going to be in any sort of hard prison. And she’s going to be at like the lowest max that there is. And that would be club fed.
[21:03] Larry: Ask Martha Stewart how “club fed” it was. She had just five months, and this woman is getting an 8 to 12-year sentence in my opinion. Five months didn’t feel like a club fed to her; she didn’t pay dues, and she didn’t ask to stay when her time was up.
[21:18] Andy: See, I mean, I guess they offer that hey, you can get out if you want to. Like, “See me to the door, please.” Yes.
[21:25] Larry: I remember a program many decades ago, probably in the 1980s, where people were griping after the Reagan administration came to power about how nice some federal prisons were—manicured and like college campuses. The warden said, “Yeah, it’s true. It’s well kept, and the people here are well behaved. We picked prisoners who just want to do their time.” But he also said it is not a club fed by any means. There’s not a soul here that wants to pay dues to be here. Very well.
[21:57] Guest 2: Pennsylvania passed a law letting people verify by phone in under two minutes. The state police then ignored it for eight years, approving barely 500 people out of 8,000. Larry has a blunt theory about why they would rather see you in person at higher levels—you can get one-on-one time. Become a patron at Patreon.com/registrymap.
[22:19] Andy: But this has been brewing for a little while about this Florida case. So are you ready to do this because we were going to talk about it last week?
[22:28] Larry: We were, and I deeply
[22:30] Andy: I apologize for the desk thing, and there was nothing I could do about it. Also, I had to go out of town, so there was no time. Man, I was out of time. So are you all giddy about this?
[22:40] Larry: Not yet, but I might become so. But at this point, I’m not getting excited.
[22:45] Andy: Right, well, let’s see. I’ve got the document in front of me and I want to walk through what you think we’re looking at because the caption is a mouthful. It’s styled Florida Action Committee versus Mark Glass in front of me. So, I’m going to go ahead and then it just keeps kind of going, naming 33 counties and 17 cities as defendants—Brevard, Broward, Calhoun, Citrus, Clay—and it doesn’t stop; it basically goes through the whole alphabet.
[23:19] Larry: It’s definitely a very ambitious and comprehensive lawsuit.
[23:25] Andy: The case is in the Northern District of Florida, Tallahassee Division. It’s in the Northern District of Florida Case Number 4:26-cv-00388 and it was filed August 11, 2026. And the way that I read it, this is a big one—I’d say ambitious is an understatement. The Florida Action Committee sued half of the state, and they laid out six counts. So walk me through what the lawsuit—through the lawsuit. It says “Complaint for Declaratory and Injunctive Relief.”
[23:58] Larry: This is the initial salvo; it’s a complaint folks—it’s not a decision yet. Nobody has won anything as of yet. This is the plaintiff’s opening filing. Every single sentence in this 70-page document, every punitive effect statement, every dramatic line about banishment, every map—this is all an allegation and argument put forth by counsel, and
[24:23] Andy: We’re not talking about a decision from the court. We’re not talking about anything; this is just an initial thing. This isn’t a court finding.
[24:31] Larry: Correct, it carries zero precedential weight until a judge adopts it, and no judge has adopted a word of it. This was just filed on August 11th.
[24:39] Andy: Which is 11 days ago as we’re recording. All right, now you say that like it’s nothing though, and I don’t think you actually believe that because I’ve heard you on the show for literally years now begging litigants to bring exactly this kind of case. So let me push back respectfully, Larry. You’re always telling me the losing cases lost because they showed up with adjectives and feelings and no evidence. You beat the drum about it in the Nebraska situation and with Beagle. Set the posture aside for one second and tell me straight: Is this filing built the way you would have been asking for, or is this more of the same?
[25:19] Larry: Some goofball put “no” there, but yes, this is actually built the way I would like it. Uh, and I’m impressed so far with the loreum. This is how you begin to build a record. Let me read you paragraph 56, and I want you to hear the difference between this and the stuff we usually complain about: “The statewide residence restriction alone renders between 57 and 60 percent of all residential housing units in Florida legally unavailable to registrants, depending on how the authorities measure distances.” And then they cited it with an exhibit. See Exhibit Three, Declaration of Dr. Kelly Socia. Is that the way you pronounce it?
[26:05] Andy: Works for me. It could be Socia but I’ll go with Socia.
[26:10] Larry: Socia, however, is a declaration from an actual expert with actual numbers. That’s not just a lawyer saying “I got a client that can’t live in 57 percent of the state.” Well, how did you figure it out? This is someone who has the skills and they have done the research and done the work. These people cost money, um.
[26:34] Andy: And that’s just the statewide law by itself, right? Because I’m looking at paragraph 57 and it gets worse. It said once you fold in the financial constraints and the general rental availability quote, an individual newly subjected to the statewide residency restrictions alone will be denied access to nearly wait for it, Larry—it’s not 99—okay, I’ll tell you that it’s 98.9 percent of residential housing units in the state. 98.9. And then in paragraph 62, it says and I want to make sure I’m reading this right: 99 percent of residential housing units in Broward County are legally unavailable to registrants; 93 percent in Miami-Dade; 81 percent in Duval; 73 percent in Palm Beach. That’s not a housing restriction, that’s a wall.
[27:37] Larry: That’s beginning to be funny, not
[27:41] Andy: the choice of words I would pick
[27:43] Larry: But that’s precisely the evidentiary spine that’s been missing in a lot of the cases that have been lost. Remember, to overcome the civil label to get a court to say it’s punishment and not a regulatory scheme indeed what the Supreme Court calls “the clearest proof of punitive effect.” You don’t get there with poetry and games; you get there with experts who measured it and can put an actual percentage on the map. Social declarations, member declarations in Exhibit 5, the Fellman declaration on costs, and Exhibit 9—that’s the record. Remember, you need to clear some proof, and this time they’ve brought some of it.
[28:39] Andy: Narrative about democracy without regulation everywhere. All right, well, now it’s story time because I flipped to the middle of this thing and my jaw hit the floor, Larry. So on paragraph 60 sub-paragraph in Brevard County, tell the people what Brevard County did.
[28:53] Larry: Oh, you found my favorite. You just go ahead and read it because I can’t read.
[28:59] Andy: All right. Well, to quote, Brevard County retains a 1,000-foot exclusion zone from, quote-unquote, any school, daycare center, park, or playground, but recently permitted businesses to self-designate as parks for purposes of the ordinance, and then, quote, to date, at least 39 businesses have done so, including an art gallery and a clothing store.
[29:22] Larry: An art gallery is probably not a park, but folks, you can’t make this stuff up. A clothing store declared itself a park, and just like that, the 1,000-foot bubble opened up around it, and any registrant living inside that bubble is now living there unlawfully. Think about what this means on the ground. A person living somewhere perfectly compliant, and then a boutique down the street filled out a form and called itself a park, and now that person’s… A potential criminal. They didn’t move. The store didn’t move. A piece of paper moved. That’s the game, and it’s rigged. I would like for listeners to understand that this plaintiff, this is the plaintiff alleging that, but you’ve got the county’s own portal right there in the footnote, so it’s not made up. This is the county saying, this is what you can do here.
[30:17] Andy: And it’s not just Brevard doing creative things right, because I noticed the ordinance… All over the map, Palm Beach went to not just 1,000, not 1,500, then they went to 2,500 feet, and then they reverted it back down to 1,000. Jacksonville adopted 2,500, then supposedly cut it to 1,500, but then the complaint said the code was never actually changed, so nobody knew the real number, what it was. Duval County, quote, Duval County’s restrictions are unclear. How is a person, Larry, how is a person supposed to comply with the law when the government itself can’t tell you what to do? I don’t know what the law is. Doesn’t that make it void for vagueness?
[30:55] Larry: That’s one of the claims. It’s the vagueness claim, and it runs all the way through, dovetailing with the loitering count. Let me read paragraph 70. I’ll try because this is one of the places where the plaintiff’s lawyers did their homework. Quote: “When asked to produce records identifying the locations that constitute places where children were congregating within the meaning of the section of the law, three county sheriff’s offices expressly stated that it was a case-by-case determination made in the field according to the officer’s discretion. And then most offices simply stated that no such records exist.”
[31:37] Andy: I’m sorry, wait. So there’s a felony statute that says you can’t loiter within 500 feet of a place where children are congregating, and when you ask the sheriff where those places are, the answer is, we’ll decide when we see you?
[31:49] Larry: We’ll know it when we see it. So can you at least laugh along and admit that one’s funny?
[31:58] Andy: It’s not funny. Have you thought of seeking mental health counseling for your warped notion of something being funny?
[32:05] Larry: No, I really haven’t, because I think this is funny. I mean, you can’t make this up. You call the police and say, y’all put your hand on the Bible and said you’re going to enforce the law, so I want you to clarify what the law is. And if they tell you that you can’t tell you, you’ll have to just take your chances. We’ll make a case-by-case determination after you’ve taken your chance. That has to be funny.
[32:27] Andy: Not if you’re in Florida.
[32:30] Larry: But that’s the standardless sweep, and that’s the vagueness argument in a nutshell. The statute didn’t define loitering. It didn’t define children. It didn’t define congregating. The complaint actually went to the dictionary because of lack of definition in paragraphs 65 through 67. And the point they were making is that… And then they leaned on the city of Chicago versus Morales, quoting it in paragraph 68. The definition of the forbidden conduct is not clear. And the ordinance fails to give the ordinary citizen adequate notice of what’s forbidden or permitted. Folks, when you’re in the legislature, you’ve got to draft stuff so that people understand what you’re requiring them to do or what you’re forbidding them to do. Criminal law cannot condition liability, particularly felony liability, on guesswork. And that’s the theory of void for vagueness. And of the six counts, I’d hang my hat on the vagueness count and the First Amendment count because they’re the cleanest.
[33:38] Andy: Well, let’s do the travel piece because that one actually kind of made me a little bit angry. Section 943.0435 subsection 7 and 8. The complaint said… If you want to leave the state for three days or more, you have to report in person 48 hours before you go and 21 days ahead of international travel. Fine, whatever, that’s bad enough. But then you look at paragraph 50 and again at 90, where they listed the sheriff’s office hours. Would you do me a favor and read me what the Highlands County line says?
[34:11] Larry: Oh, that one’s funny. The Highlands County Sheriff is open for registration on Tuesdays only. One day. Tuesdays.
[34:20] Andy: So if you want to leave, say on Saturday, you can.
[34:24] Larry: And it gets a little bit better. The Baker, Charlotte, Columbia, Glades, Lafayette, Liberty, and Manatee counties’ offices are open for registration two days a week. The Jackson, Leon, Putnam, Sarasota, and Suwannee County Sheriff’s offices are open three days a week. So it gets a little bit better. And the punchline, paragraph 50, is that it is sometimes impossible to comply with the 48-hour notice requirement, rendering… I don’t know if it’s flatly unlawful, but it’s very close to being unlawful.
[34:59] Andy: And then if you could walk me through this like I’m a registrant living in Florida. My mother dies on Wednesday in Georgia. The funeral is Friday. My sheriff’s office is open on Tuesdays only. How exactly am I supposed to give 48-hour notice in person?
[35:18] Larry: You don’t, because you can’t. There’s no window. The next Tuesday is after the funeral, and the complaint spelled this out in paragraph 90. Quote, if an opportunity for interstate travel arises on short notice, there’s no way to comply, and the travel becomes categorically illegal. Open one day a week, and then you charge you with a felony for not showing up. Comply with that. That’s the argument they were making, and I think it’s a fairly strong one, because the law makes compliance physically impossible and then criminalizes noncompliance. It’s not a regulation. It’s a trap.
Now the statute did have a wrinkle. They acknowledged it in paragraph 49. That untimely notice is allowed if the travel plans were, quote, not known within the notice period. But then look at what they said next. The in-person reporting requirement is not waivable. So the office is closed, and you still have to show up in person. And the knowing in advance excuse doesn’t help you much. If the door’s got a padlock on it, when you get there. I don’t know how that would be of any remediation. Do you?
[36:23] Andy: No. Could you leave a Post-it note on the door? I showed up in person, and I put a Post-it note and said, I’m going to Georgia. My mom died.
[36:32] Larry: Well, if we were in the old days, I would send them an old-fashioned fax, but nobody does that anymore. You might escape with an email, but this is very bad.
[36:43] Andy: Yes, it is. All right. Let’s get to the part that I think is the real fight, because you keep circling back to it. The banishment count. Count number one. The Eighth Amendment. This is where they kind of went big, and I have to say, the writing here is something. They brought in the Scarlet Letter. They brought in the Grand Remonstrance against King George. They brought in Roman law, exilium, relic, Gaudio, Seneca getting exiled for eight years. It’s a whole history lecture. Lecture. Ah, lecture. Does any of that actually help the guy who can’t find an apartment?
[37:17] Larry: Now, that’s where I have to put my discipline hat back on. The Scarlet Letter is entertaining. The Roman stuff, although I didn’t understand it, it’s entertaining, and I enjoyed reading it. But I want the audience to be clear-eyed. None of this flourish changes your practical situation, and none of it is what wins or loses this case. What matters is paragraph 127 of count one. There’s case law in this circuit already.
[37:48] Andy: All right. Well, quote, “50th Federal Fourth Circuit 986,” and that’s the 11th Circuit in 2022. Did I do that right? Yep. Okay. The 11th Circuit held that Alabama’s registration scheme did not impose punitive banishment because registrants in Alabama retained a meaningful ability to live and move within communities. Here, though, in contrast, the Florida scheme systematically eliminates those opportunities in densely populated areas and whole counties throughout the state.
[38:24] Larry: Well, that is McGuire v. Marshall, and it is the 11th Circuit, and Florida is in the 11th Circuit, so it’s a controlling circuit for this case. And the 11th Circuit has already looked at Alabama’s scheme and said that it’s not banishment. And I’m going to go off script here a little bit. Banishment, a lot of folks in our audience say they want interpretation to be consistent with what words meant when they were written. That’s the Scalia doctrine. Well, banishment in colonial times didn’t mean you couldn’t rent an apartment or live somewhere; it meant you could not be in town. If you’re in town after sunset, we’ll lock you up and throw away the key. That is colonial banishment. So if you adhere to the Scalia doctrine that words have to be given their meaning at the time they were written, then you can’t say these people are being banished just because they can’t rent an apartment or live there. They can shop and spend money there as long as they don’t hang out where children are. It’s getting closer to banishment because they’re not telling you, “Get out of here.” But if you can’t be in any business establishment and you can’t have a residence, it’s getting closer. So you’ve got your own circuit staring you in the face saying registration schemes like this aren’t punitive management. So you’ve got to get around McGuire and the controlling circuit precedent. And you don’t get to argue beautiful Roman history until you’ve distinguished yourself from McGuire on the underlying facts of the requirements. So we’ve got to do a good job, meaning the people in Florida and their legal team.
[40:23] Andy: Do you think there’s a difference in how the population is handled? What is the population of Alabama? Four million people versus 40 million in Florida. Well, there are some differences. OK, well, then how would they try to do all of that? Because it read like they were saying Alabama’s different and our facts are worse.
[40:47] Larry: That’s exactly the move. And it’s the right move. And it’s the only move. Their distinction was Alabama registrants retained a meaningful ability to live and move in communities, whereas Florida’s didn’t. So they’re already doing what they need to be doing—trying to distinguish. They’re sure that 99 percent of Broward County is off limits. And that’s what the maps were for. They’re saying that whatever the 11th Circuit said about Alabama, Florida is a different animal. That’s what they should be doing. And they did the right thing. In paragraph 93, they actually put in words: “Whatever the 11th Circuit pre-guidance, our scheme today stands out as particularly even uniquely punitive.” So they weren’t asking the court to overrule McGuire per se; they were saying McGuire didn’t reach these facts. This is a distinction. They’re hoping it flies.
[41:41] Andy: Well, let me carry a piece of this myself for a moment, because I actually read the punitive nature section and there’s a legal hook. In paragraphs 115 through 118, they leaned on a case called Ellenberg versus the United States, and they quoted it a bunch. They said the consequences apply only with respect to a criminal defendant and only after that defendant’s conviction of a qualifying crime. Then at sentencing, the registration requirement is imposed together with other criminal punishments such as imprisonment and fines. In paragraph 118, another argument was made: “A further sign that sex offender registration is criminal punishment is that the registration regime is codified in Title 48 of the Florida statute titled Criminal Procedures and Corrections.” So they were arguing, look where the legislature filed this thing. It’s in the crime and corrections part of the code. Therefore, it’s punishment. That sounds like a good argument to me.
[42:53] Larry: That’s the beginning of a good argument, and the placement argument is creative use of Ellenberg. But I want to be a little bit careful here because I’ve said this before about Ellenberg. Don’t get carried away thinking Ellenberg drags Smith versus Doe into the grave because it doesn’t. Smith versus Doe is still sitting there as controlling the intent effects framework, which is still the framework as of right now. What Ellenberg gives you is a cool argument on the intent side of the ledger that if the legislature stuck this in the criminal procedure and corrections title and the sentencing judge is making findings about it, then the state’s civil remedial story gets harder and harder to sell, but it’s not a knockout. There have been many courts that have ruled that mere placement in the criminal code does not transform a civil regulatory framework.
[43:54] Andy: And speaking of the state’s story getting harder to sell, this is the part I actually want to react to because you flagged it before we even started recording. The legislators quoted these people directly. Let me read Representative Steel from paragraph 98. He said registrants subject to the residency restrictions shouldn’t be allowed out of prison at all. They should stay in prison, rot in prison forever. And then in paragraph one or two, he went on further: “I would love to see a sign that says not welcome in the state of Florida” to eradicate registrants in the state altogether.
[44:35] Larry: They said that quite a quiet part out loud on the record. “Rot in prison forever.” That’s your regulatory intent there, but see, there’s a slight problem with that, although it’s good. That’s one lawmaker speaking that does not necessarily represent the intent of the body. At least that’s how our courts have interpreted here. But then there’s Barney Bishop, the public witness, in paragraph 13. And again, in paragraph one or two quoting: “Just put up a big welcome sign at the border of Florida and say sex offenders, you’re not welcome here. Go to another state. You don’t have any rights.” Close with this quote: “We shouldn’t be doing a single solitary thing to help them find a place to live in Tallahassee or the state of Florida. They should be out of the state. So please support this bill.”
[45:30] Andy: And there’s an older one too, right from when they first passed the stuff back in the early two thousands.
[45:36] Larry: Yes, paragraph 103 has Representative Sue Goldstein or Goldstein. What’s your preferred pronunciation?
[45:46] Andy: Goldstein. You know, Jewish and all on
[45:49] Larry: the original residency restrictions said it was designed to get these people out of our neighborhoods and hopefully our state. Here’s where that matters legally. And there is the point—the whole civil remedial fiction depends on the state saying, “We’re not punishing anyone; we’re just protecting the public.” But when the lawmakers themselves are now openly banishing with retributive purpose, that fiction begins to get very difficult to defend. The intent affects inquiry can end on intent alone if the intent is punitive enough. If they can show that the legislature intended to punish PFRs, you don’t have to go through all the Kennedy Mendels or Martinez factors because that is the inquiry. If you intended punishment, we don’t need to analyze anything else. Your intent speaks for itself. So this was bad. There was a lot of bad faith bill drafting and legislative hypocrisy and just straight out incompetence. People who don’t have a damn clue what they’re doing.
[47:00] Andy: And the human stuff is rough as well. There’s a veteran in paragraph 88 who survived combat, three ordinance explosions, came home, qualified for residential rehab with the VA but couldn’t use it because the facility was in an exclusion zone. There’s also the elderly registrant in paragraphs 87 and 88 who lived peacefully in Florida for decades but couldn’t move into a senior living facility because there were no exceptions for age or disability. And then there’s paragraph 84, the quote roving encampments of tents and makeshift shacks in a few parking lots in Miami-Dade because nowhere else was legal.
[47:39] Larry: And an officer told one member of FAC, Florida Action Committee, in paragraph 82, to quote, “get a tent and head for the woods.” Because finding blind housing would be impossible. That’s the on-the-ground reality. This record has documented and attempts to document very well. Homeless rates from 7% statewide up to 34% in the big metros. That’s the effect side of the intent effects analysis. And it’s real. And I think these people have that act together. And this is not uncorking champagne, but they’re being very ambitious.
[48:16] Andy: Well, then here’s a question. And it’s one that a confused listener is going to have. They asserted six counts and kept using this phrase over and over again: “unconstitutional on their faces in all of their applications.” Every count said it. Is that a smart play or are they painting with too broad a brush?
[48:43] Larry: Well, I think that’s a fair question. A facial challenge in all applications is the most ambitious thing you can ask for. It means saying there’s no set of circumstances where this law could be constitutional. You’re not just saying it hurt your client specifically; you’re saying it can never be applied constitutionally to anyone. That’s an extremely heavy lift, so I usually take the chicken approach and argue it’s unconstitutional as applied. But they hedged in a couple spots on the laundering count in paragraph 142. They said it was unconstitutional in all applications or alternatively unconstitutionally supplied to innocent presence. So they left themselves a fallback position. The breadth is real—50 plus defendants, six counts facial challenges across the board. If a judge gets nervous about the breadth, they narrow it. I’d rather see them aim high and have some things kicked out than go timid and miss opportunities.
[49:49] Andy: All right. Well, so give me the bottom line because if this came in kind of hot and I thought we won. You’ve kind of talked me back off the ledge a little bit. Where does this actually stand, and what should the guy driving to work listening to us right now take away from it?
[50:03] Larry: Well, the bottom line is that this complaint hasn’t changed anything on the ground since August 7th. The status quo remains—the arc unit is still operating, galleries are still open one day a week, and nobody’s going to see any immediate change. But I score cases based on what the court actually orders and what changes on the ground. This is how you get to the outcome of having a winning case: by doing the complaint right and being prepared to go to trial if need be. I can almost assure you that they won’t file a blanket motion for summary judgment; they’re going to want to put some of this on trial. I haven’t conferred with a single person in Florida, but I don’t see them moving for summary judgment on every count. They’re going to want to expose this for what it is, which just makes it impossible for people to live in Florida.
[51:00] Andy: It does seem like that now. So, what do you expect will actually happen with it? Do you think they’ll win maybe?
[51:07] Larry: I expect that they’ll survive motions dismissed at least on some of the counts, the vagueness, the right-wingers to travel, the first amendment which has a gag law component that we didn’t get into—you can’t talk to a minor whether it’s sexually or sinister period. You just can’t; you know, they basically gag you from having any conversation with a minor. Those are the hardest for the state to create their way out of because of the standard list. They didn’t bother to define the stuff, so they crafted this stuff to make people feel good and assumed that the PFRS wouldn’t ever challenge them because they’d gotten away with the eighth-minute management count. This is a fight, and McGuire of course is going to be somewhat of a problem for them, but they may be able to weave their way around that. So I say that they’ve got some good traction here, potential, and this case goes up to the 11th circuit.
[52:08] Andy: And like I’m just imagining that you are in town somewhere window shopping or whatever, and a kid comes by and says, “I’ve lost my mom.” Are you just supposed to run away?
[52:22] Larry: Yeah, that’s what apparently is in Florida now. But the irony of this is this is a state that promotes family values and they need a mommy and a daddy and role models, but then they make it against the law. Like it’s funny.
[52:37] Andy: The kid has lost their way; the kid is a boy or girl, whatever. They come to you and say, “Mr./Mrs., can you help me?” And you’re supposed to just run away like the Road Runner. Of course, the state’s not going to be like, “Oh yeah, you guys are right.” No, they’re not just going to fold to save money.
[53:01] Larry: No chance. However much folks preach fiscal restraint in Florida, they will spend whatever it takes to defend themselves. Here’s the durability problem that keeps me from popping the champagne: look at the history of the complaint paragraph 93. Quote: “The original Florida registry statute adopted in 1997 was a mere reporting and notice requirement.” How over time, thanks to almost two dozen statutory amendments, it has grown more and more burdensome. From 2009 to 2018, the legislature admitted the scheme seven more times. So if the plaintiffs win a declaration that it’s punitive, what stops the legislature from redrafting and relabeling, adjusting distances, and repassing it? They’re not going to just throw in the towel; they won’t say, “Well, we’re done.”
[53:56] Andy: That’s what we saw with Michigan. Quote unquote, “We won,” but then the legislature came back and reworded things or was given a timeline to fix something and didn’t do it. This could take many years.
[54:18] Larry: So watch the docket. FYP Education will keep you informed. And I’m sure the Florida Action Committee will be diligently notifying people. And the rulings are what count, not the filing. But I like to wait, and I’m not popping the champagne over this yet. But I give credit to the lawyer. I appreciate what they’re doing so far. And I wish I’d have actually reached out to them, because I’m sure I’ve botched this somewhere. And maybe they can come in and clean it up on the next episode. But we did the best we could.
[54:50] Andy: I always ask this question. This doesn’t sound like a $20,000 or $50,000 case to hire an attorney, right? This is well into six figures, possibly
[55:02] Larry: seven? This is well into six figures. I don’t know about seven. But the folks in Florida are going to need to quit waiting to be saved. They’re going to need to contribute. Other organizations that want to have favorable case law, they need to possibly pony up a little bit of help to Florida, assuming that things don’t get dismissed. And I don’t think it’s going to happen. But if they survive and this case moves forward, then we all need to do what we can to help them. Because we don’t need a loss in a major state like Florida. If Florida can’t win, then hardly nobody has a chance of winning anywhere.
[55:40] Andy: They’re one of the larger and more active organizations that there is.
[55:44] Larry: So, yes. But we’re going to be at this for at least three years, probably longer.
[55:49] Andy: Well, then keep the champagne back there in the fridge, Larry.
[55:53] Larry: That’s my advice. But also be ready to open up your checkbook if you have the ability to do so, particularly for the Floridians listening. They’re going to need all the help they can get.
[56:04] Andy: Very well. Sounds good. Anything else before we head out?
[56:08] Larry: No. I think we’ll be here next weekend again.
[56:11] Andy: I believe so. Unless my desk craps out again. Who knows? So head over to registrymatters.co for show notes and links everywhere. Email us at registrymatterscast at gmail.com. You can leave an old-fashioned voicemail message at 747-227-4477. And, as the people listening here tonight have done, become a patron at patreon.com/registrymatters. I would personally thank you from the bottom of my heart to support us there. And then you can also head over to the FYP Education shop at fypeducation.org/shop for some fun schwag. Larry, have a great weekend. Stay cool. It’s probably starting to cool off a little bit, maybe.
[56:55] Larry: Yeah. Down to 96 today.
[56:59] Andy: Very well. Have a great night. Stay out of trouble. And I will talk to you soon. Good night.
[57:06] Introduction: You’ve been listening to Registry Matters.