[00:00] Introduction: Welcome to Registry Matters, an independent production. Our opinions are our own, and we’re thankful for the support of our patrons. Truly, you make what we do here possible. Your contributions keep the conversation going, and always remember, F-Y-P.
[00:20] Andy: Recording live from FYP Studios East and West, transmitting across the internet, this is episode 388, wow, 388, of Registry Matters. Larry! It’s a fine Saturday evening. How’s that roof? Did you get solar yet?
[00:35] Larry: No solar, but we’re working on the AC, trying to figure out the problems. We don’t have to go into the details of it. We’re still troubleshooting. We’re making progress. Because
[00:44] Andy: You’re doing some shady stuff up there on your roof, aren’t you?
[00:46] Larry: Not really shady, I’m just doing management’s job.
[00:51] Andy: Please remember to show your support by hitting like, subscribe, and favorite button and five-star ratings in your podcast app. Thank you. That shows your appreciation. So, yeah, let’s just go on because we have a lot of stuff, and we’re kind of running a little bit late, because there was a lot of pre-show banter. And what are we going to do tonight?
[01:10] Larry: Well, we’re going to talk primarily about a case from the Minnesota Supreme Court. I don’t think they pronounce it “court” up there, do they? That’s more of a Southern thing. So it’s a win for our cause. We also plan to discuss the endless chatter about the recently released opinion from the Michigan Supreme Court, and in my view, it’s basically a reaffirmation and clarification of their previous decisions regarding the ex post facto imposition of the current 2021 version of SORA, as they call it. And we have a special guest that you’re going to introduce with a great bio at the proper time, but we have that lined up first. I think we’re going to have a great program tonight because this is all good news.
[02:05] Andy: Holy moly. So this will be the one episode out of the whole year where we have good news only. It’s the good news everyone show.
[02:14] Larry: I would see it that way, because
[02:06] Announcer: They’re both wins. On Halloween, a probation office gathered people up and searched all their phones. One man then sat locked up for 179 days before every charge was dropped. No evidence, no apology, no recourse. That is the kind of story Andy and Larry refuse to let disappear.
[02:35] Andy: Well, Announcer, I’m going to introduce you. I did not set up a bio beforehand, but we’ve known each other for quite a while, and you’re quite a good dude, and one of my best friends, I would consider you. You used to do a podcast called Decarceration Nation, and that’s kind of how we met. We met at a conference in Atlanta, and then you started your podcast shortly after, and I’ve been your producer for that until you stopped about four years ago.
[02:59] Josh: A little over four years ago.
[03:01] Andy: And so if you have other things to add to your bio, I would most appreciate it because I could go on about where you work, but I’m not sure how much you want to actually divulge.
[03:09] Josh: Sure. Mostly I work in legislative areas, passing legislation around the country at both the state and federal levels. I’ve been part of something like 32 bills now that have passed on various criminal justice concerns.
[03:29] Andy: One thing that always impresses me is how you’re just a guy who texts occasionally. Your phone number is in my phone, for example. You once shared with me a tweet from the formerly known Twitter that was read on C-SPAN by legislators talking about the First Step Act. That’s a big deal to me; it seems like a small thing but it really isn’t.
[03:55] Josh: Yeah, I mean, if I’m remembering correctly what we’re talking about, I had written a lot of the arguments that our side was making against Tom Cotton’s amendments to the First Step Act, and we defeated those amendments. A lot of my arguments were read on the floor, which was pretty cool.
[04:17] Larry: All right, well then let us begin. You left out one thing in your bio. You were a plenary speaker for an event recently, weren’t you?
[04:27] Josh: Yeah, it was the summer before last. Yes, it was fabulous.
[04:31] Andy: Job, standing ovation. Really, really fabulous job. All right. Well then, so to continue on in order issue a few
[04:39] Josh: times before, but it was a while ago.
[04:41] Andy: Many repeat offenders. I should almost say that I’m going to pause for one moment while my system is not doing all of the right things for me. I’m going to have to figure that out. All right. I’m going to figure this out while I press this button a bunch in order. Issued by the Supreme Court on September 9th has generated considerable chatter. The case is the people of Michigan versus Eddie Lee Smith. Now let me read the pertinent parts by order of March 27th, 2026. The parties were directed to file supplemental briefs addressing whether if the court were to find an ex post facto violation in this case, the remedy for such a violation would be the same as the one employed in people versus bets. That’s five Oh seven. Michigan five 27 and a bunch of other numbers from 2021. The motion to grant oral argument on the question is denied. They continued in lieu of granting leave to appeal. We reversed the judgment of the court of appeals, vacate the June 29, 2023 order of the Kent circuit court to the extent that it is inconsistent with this court’s opinion and people versus Cardez—possibly spelled or pronounced wrong—and remand this case to the trial court for proceedings not inconsistent with this order. Holy moly. I can’t read legalese, Larry. This makes no jumbled sense to me, but so what is this all about?
[06:09] Larry: Well, thankfully we have a guest, but Smith committed the crimes at issue in 1995 and 2010, but he is being required to register under the sex offenders registration act (SORA), which I could tell you was a section of law, but don’t need to. As amended in 2020, effective March 24, 2021, known going forward as the 2021 SORA. The statutory requirements enacted after the commission of his crimes amount to punishment, citing Cardez. So requiring him to register under the 2021 SORA is therefore an ex post facto punishment and violation of the U.S. Constitution. And for the same reasons articulated in Bets with regard to the 2011 SORA, the 2021 SORA may not be retroactively applied to registrants whose criminal acts subjected them to registration or occurred before the enactment of the 2011 SORA amendments and severance or revival of prior versions of SORA is not appropriate. So they have said that anybody whose conduct predates the magic date cannot be subjected to the 2021 version or the 2011 version, where I disagree slightly. They did not say they can never be subject to any version of registration, but anyway, that’s what I’ve got. So move on.
[07:43] Andy: All right. Well, just because I am confused. I thought this matter had been settled. It sounds to me though, that the Michigan court of appeals disregarded the state’s Supreme Court.
[07:55] Larry: Yeah. It does sound that way. And I did read their decision and then it made my head spin and I decided to rather than trying to unpack it, I would leave it to someone from Michigan to explain and justify and guess what? That’s what Announcer is here to do. Announcer, welcome aboard.
[08:11] Josh: Hi, how are you doing?
[08:15] Andy: So let’s start with the applause first. And I don’t have an applause button available to me. You texted me Thursday night, I think.
[08:25] Josh: Yeah. The 10th was when we found out about this. So yeah, two days ago, not the ninth. Most of us found out on the 10th and then something pretty significant happened on the 11th. And that was a lot of us, maybe all of us, got removed from the registry. Like literally we’re not on the registry anymore.
[08:46] Andy: That, and is this one of those times where we should have the conversation about whether the website is the registry?
[08:54] Josh: Well, the Michigan state police did put out a notice saying they’re complying with the decision and removing everyone from the registry who was pre-2011. So my guess is that both of those things can be true.
[09:08] Andy: Okay. I have a quick test for you to see if you end up in jail.
[09:15] Josh: Well, it depends on where I move probably.
[09:19] Andy: Okay. So in a bunch of pre-show chatter, there was some pushback pushing back and forth. Like tell me about the last line that you were talking about, Announcer, Larry just mentioned it too. There were kind of three things that the court said at the end of the decision. The first one was that they can’t add anything new that the legislator tries to add on would be considered punishment. Well, at least anything that fits within the parameters of X plus back to punishment. They said that you can’t really sever the current statute and remain constitutional. And they said that you can’t revert to old law. So they can’t just say go back to the version before 2011. So in my mind, aside from something that Larry and I will probably talk about in a second, in the traditional sense of registration, they can’t really put new requirements on us. They can’t really reduce the current thing and they can’t really revert to old law. That as someone who is occasionally written legislation, I can tell you that limits your options a lot. It’s not, I think Larry’s right, that there are things they can do, but those things are somewhat limited.
[10:37] Larry: So I read it slightly different. It doesn’t say that it’s not talking about severance stuff. The current 2021 version is talking about that severance or revival is talking about prior versions. That’s all modifying prior versions and referring to prior versions. So you can’t sever your way out of the version that was declared unconstitutional. That was the reason why they didn’t fix it by severing the unconstitutional parts. It left nothing standing once they took out all the junk, there was nothing to support the scheme. But I can assure you that there’s no court in the land that can forbid a legislature from legislating and they can legislate a brand new SORNA. And if they really wanted to make it totally remedial and non-punitive, non-public and do all these things, it would pass constitutional muster. They could do that and they can invite everyone back, but I’m hoping they don’t do that, but they could.
[11:33] Josh: Yeah, I think there could be some kind of civil scheme, which I think is what you’re talking about. I think that would probably pass muster at some level, but there’ll be a lot of things that it couldn’t be. And I think you’re just more or less agreeing with what you just said.
[11:51] Andy: Well, okay. For my little dumb brain, does that mean they could say you have to update your information by some kind of website and the punishment would be a $5 fine because like, that’s not really punishment. That’s not a year in prison for missing your registration date by an hour. So
[12:14] Larry: Yes, if they were to create a scheme that was truly like the registry was in many states. In fact, the majority of states when they were created 30 or so years ago, if you simply had to announce that you have a conviction and they merely kept that in a database and didn’t share it with the entire world, didn’t require you to report anything other than changes that you could update electronically like how young men register for the draft. You don’t have to go into an office and have your finger and butt print taken; you do all that online and keep the government abreast of where you are. If they were to do just that, there would be no court in the land that could stop them from doing it. They could apply this to anybody who’s ever been convicted at any time in their life. They probably wouldn’t go back 40 or 50 years, but they could do it constitutionally. But the victim’s advocate apparatus is not going to be happy that thousands of people have disappeared like a poof into the wind. And so there would be enormous pressure. When I lived in Michigan, your legislature was full time, like Congress. Therefore, they’ve got ample time to legislate other than when they’re on recess.
[13:40] Andy: Larry, about something in the wind. I don’t recall what that was. I said, “I see you have a hunting break, Announcer.” Oh,
[13:49] Josh: the legislature does.
[13:50] Andy: Cool. Yeah. So what do you have to do? Go up to like the upper peninsula and rough it for a couple of weeks or something mandated?
[13:58] Josh: But it is set aside so that anyone in the legislature who likes to go hunting can go hunting.
[14:05] Andy: That has got to be some 1800s thing that they put in place so everybody could go pack their freezers with a wildebeest or whatever.
[14:13] Larry: But hunting is big, big time in Michigan. When I was there, even living in Kent County, people talked about hunting all the time. So it was huge.
[14:21] Josh: People love their hunting in Michigan. That’s for sure.
[14:25] Larry: All right.
[14:25] Andy: Right? So you are out to go paint the town red and have a good time tonight for this news.
[14:31] Josh: Oh yeah, probably. I mean, I don’t know about going to paint the town, but I’m going to do something for sure. So it’s not every day that you just all of a sudden magically disappear from the registry and it’s not because they have some error or something.
[14:46] Larry: Well, I am very excited about this. It’s been talked about on the listserv, not to the extent I thought it would be, but it’s been talked about quite a bit and I’m excited about this. I would really encourage the Michigan organizations. I think there are two there, right? Two advocacy organizations that do PFR work.
[15:07] Josh: Yeah, I think so. There are two. I would encourage them
[15:10] Larry: to be able to utter the words “civil regulatory scheme,” get over your hang up about it. Sit down with leadership. As high up in the legislature as you can get and say, because when the pressure starts mounting, you guys need to be there and you need to say, look, we’re going to litigate until the cows come home or whatever they hunt up there. We’re going to litigate until you stop making unconstitutional laws. But we will help you if you’re determined to have a registry. If you think putting people who committed crimes decades ago on a list is important, we will help you draft something that we will not challenge. That’s what I would do. Now, you’ll be accused of being a sellout by the PFR community. They’ll say that you should never help them. But my response is, would you rather I draft the law or would you rather they draft the law? I think you can look at what they drafted in 2021 and conclude that you prefer I draft it than them.
[16:07] Josh: Well, as someone who literally testified against the 2021 law and was very involved in that, I can agree. I would have much preferred to write it. I actually convinced them to put parts into it because they were going to make people update all their stuff within a time period without the business day language. So there were some changes made in the 2021 law because of discussions we had. But I certainly get where you’re coming from.
[16:54] Larry: You’re the only PFR that can say “civil regulatory scheme” with a straight face, but most people just resent it so much. Go ahead, Andy.
[17:00] Andy: Well, can you explain why you were so emphatic about calling it a civil regulatory scheme and how that is such a powerful thing to use when working with the legislature?
[17:17] Larry: It’s not that difficult. They’ve never heard that term before. As far as the average lawmaker, how many people serve in your assembly? Announcer, counting the house and senate, I don’t remember the exact number, but it’s a bit of a large group.
[17:28] Larry: I’d be surprised if 5% know that it’s a civil regulatory scheme. They don’t know that there are any boundaries and contours to what they can do. So they’re getting pushed from the law enforcement apparatus and the victim’s advocate apparatus to make it tough on PFRs. And they’ve never been told that it’s a civil regulatory scheme or that it’s only upheld because it doesn’t inflict punishment. They’ve never heard that before. And therefore, it’s an opportunity for you to educate them and show that you’re balanced in your approach. You understand that they have a political need to satiate the screams and hollers from the people. But you have to do it in a constitutional fashion and can’t punish people in a civil regulatory scheme. They’ve never heard that before, which is why it’s so important for you to explain it.
[18:21] Josh: One other thing, I’ll add just because I think it’s somewhat important is that we’re in a unique kind of situation right now. I understand that Larry’s right, the pressure will probably be immense. But until November, the leadership of the Senate judiciary won’t let a new scheme come through. They’re leaving and don’t care if they get kicked out. I know them well enough to say they won’t let anything happen. In November, depending on who’s in charge, there might be some implications for what happens next. Although often they’ll do something anyway. But right now it’s bad timing because everyone is in campaign mode and none of them want to do anything. However, if there’s enough outcry, they’ll have to act.
I’m surprised I haven’t seen a lot of pushback already. The Detroit News might publish something scathing soon and blame the Supreme Court. But the decision was unanimous, with liberals, non-liberals, conservatives, and moderates all agreeing. It’s really the legislature that has been told repeatedly this is unconstitutional, yet they keep trying to circumvent it instead of coming up with a solution like Larry suggested. The Michigan constitution offers more protections than the federal one, which is why they’re in trouble now.
[20:33] Larry: I have a couple questions for Announcer. When you say these people’s leadership don’t care, are they term limited? Because when I was there, there were no term limits. So these people won’t be back next year. That’s risky because we don’t know who will be in those positions. We need to see who the majority is and what kind of committee chairmanships they’ll have.
[21:06] Josh: I totally agree. If it were the House right now, with split leadership, they would try to nuke us as much as possible. But the Senate leadership won’t let anything happen because they’re term limiting out. Luckily, the current headwinds seem to favor Democrats, but we’ll see what happens. It could be a disaster and we might end up back at square one. However, I don’t think the court will tolerate another similar scheme. If they come up with something very much like the old scheme, it will be nuked immediately. The court has already decided it’s not constitutional, so it really depends on what they do next.
[21:49] Larry: So, they would still have to go through the challenge, but they could expedite it. The courts can make things move fast if they want to.
[21:58] Josh: Given how angry they seem in this particular situation, I kind of feel like they’re going to expedite it. If there’s another issue, I don’t think they’ll wait another five years for this to matriculate or whatever.
[22:11] Larry: When I lived in Michigan, the Supreme Court justices were elected. Has that changed? No, they’re still elected.
[22:18] Josh: Well, couldn’t political pressure be applied to them? I think it will be applied to them. But for two reasons, first of all, I think that it was unanimous helps a lot because it becomes less of a political football. But I agree, there’ll probably be pressure put on them. This is the second time they’ve done this. The Betts decision, they did the same thing. It just happened that the new law came into effect right after they basically said the same thing about the old law. So, that’s why I think they’ll probably expedite it because they don’t want to be circumvented again. They won’t be happy to do it twice.
[22:58] Larry: Well, I hope they do because I’m expecting the worst. I really am. I think what happens is people who are obsessed with term limitations don’t realize you lose institutional knowledge when those people walk out the door in Lansing for their final session. All that knowledge goes with them. Some carries over with the staff because they have year-round staff in a full-time legislature, but the institutional knowledge just went out the door. And the new people come in believing in the head-cocking theory that if you cock your head the right way, you can keep doing the same thing and get different results. Like balancing the budget—if we cut taxes and increase spending, we can balance the budget. We’ve been singing this for nearly a hundred years and it hasn’t worked. But we keep cocking our head and it’ll work. And that’s what happens when you lose institutional knowledge.
[23:47] Josh: Well, I’m not a fan of term limits for exactly that reason. I think you lose a lot of the people who have the best understanding of the issues they’re trying to govern on. There are also disadvantages to it, but in my experience, a lot of the best legislators end up terming out and it’s hard to replace that knowledge.
[24:07] Larry: So, well, Andy, I’ve been…
[24:08] Andy: monopolizing. Do you have any questions?
[24:13] Larry: Not at all. I mean, I’m sure I could come up with many, many, many. But no, this is certainly a number. The number is not bad, Dave. We could circle back as we know more. If there is more, and somebody’s got to watch the legislature.
[24:25] Josh: Sure. Well,
[24:26] Andy: Definitely. Somebody needs to take on the job called Legislative Watch. Yeah, I think all of us are watching. No, but so much congratulations. I couldn’t wish it upon a better person. And I wish you all the freedoms you deserve. Absolutely.
[24:47] Josh: That would be nice. I certainly am hopeful. It’s certainly nice for right now because I’m free-free, at least in the state of Michigan.
[24:55] Andy: Do you want to give any way for people to reach out to you? You don’t have to if you don’t want to, but just in case someone does.
[25:00] Josh: Yeah, people can always find me by my name on social media or I’m around.
[25:07] Andy: Very good. Well, thank you again, Announcer. You’re free to go if you want to. You certainly can hang out and listen in, but otherwise we will move along.
[25:15] Josh: It’s really good to talk to both of you and good to hear. I haven’t talked to Larry in a while. Good to talk to you again, sir. Thank you. Thank
[25:20] Larry: Thank you so much.
[25:24] Josh: I’ll probably stick around.
[25:27] Larry: Awesome. Thanks.
[25:28] Andy: Announcer.
[25:30] Announcer: A Michigan man reported his address change early like a good citizen. He got prosecuted for it anyway, over a 19-day gap. Now the state’s highest court says the ruling that struck down that registry law reaches backward. Andy and Larry explain who that could free. At higher patron levels, you even get one-on-one time with Larry. Become a patron at patreon.com/slash/registrymatters.
[25:55] Andy: Well, here we go. This is a case you wanted to discuss from the Minnesota Supreme Court. The name of the case is Siegel versus Evans. Thank you for not having complicated names on this one. This was decided August 19th, 2026. Gosh, what is it? Two, three weeks ago. And this is another win. Larry, how did you find two wins for our people in one week?
[25:58] Andy: It’s difficult. It’s a win for now, anyway. But that doesn’t sound typical Larry doom and gloom. What’s the issue?
[26:23] Larry: Well, the issue in this case is requiring a person to register as a predatory offender under Minnesota’s registration statutes based on a predatory offense for which the person was charged but subsequently acquitted by a district court’s entry of a judgment of acquittal. That’s the issue.
[26:45] Andy: More legalese. Can you explain what you mean by the term “judgment of acquittal”?
[26:52] Larry: Known in some jurisdictions as a directed verdict of acquittal, it’s a result of a common motion that’s made after the state presents their case. When the state rests, you say, “Your Honor, I move that the court grant a directed verdict or judgment of acquittal because the evidence presented is so skimpy and lacking that no reasonable jury could convict this person.” Those motions are seldom granted. But in this case, a motion for judgment of acquittal was granted on one of his counts.
[27:32] Andy: All right. Well, then I will set it up. The appellant, Chad Lauren Siegel, was charged with two counts of kidnapping and one predatory offense under the predator offender registration statute. As well as attempted second-degree murder and first-degree assault related to an incident where Siegel and accomplices beat victim J.A.L. These are nice people, Larry. They are. The case went to trial. The trial court entered a judgment of acquittal on the kidnapping charges. The jury found Siegel not guilty of attempted second-degree murder, but guilty of assault. Based on the kidnapping charge and the assault conviction, the latter of which is not an enumerated offense required under the predatory offender registration statute, the Minnesota Bureau of Criminal Apprehension required Siegel to register as a predatory offender. How is that possible? Well, that’s
[28:29] Larry: the BCA. We’ll short that going forward. The Minnesota predatory offender registration statute is 243.166 subdivision 1B and A1 provides that a person who has been charged with one of the statutes enumerated predatory offenses and convicted of that offense or another offense arising out of the same set of circumstances must register as a predatory offender. Now, that’s what their law says. Did I hear that correctly, though? Did you say charged with? Yes, you heard it correctly. Now, I know it’s going to be hopeless, but can you admit that that’s funny? That just not even
[29:14] Andy: a little bit.
[29:18] Larry: Minnesota is or is close to unique in imposing predatory offender registration on every person who has been charged with but not convicted of a statutorily enumerated predatory offense and who has been convicted of a non-predatory offense arising out of the same circumstances as charged with the predatory offense. It’s funny.
[29:42] Andy: No, it’s not funny as usual. The opinion says that the jury found Siegel guilty of first-degree assault and not guilty of second-degree attempted murder. The trial court convicted Siegel of first-degree assault. The court later sentenced Siegel for that offense and notified him that he was required to register as a predatory offender under the predatory offender registration statute. Did he appeal at that time?
[30:06] Larry: Yes, Siegel appealed his conviction and sentence but did not challenge the requirement that he register as a predatory offender. Now, of course, I think that’s semantics because if he’s appealing the conviction, obviously it’s presumed he doesn’t much care for registration. But that was the case that he appealed and he got a decision in 2015. The Court of Appeals affirmed the trial court on everything.
[30:29] Andy: All right. Well, if we can move forward about seven or so years, then in August 2022, Siegel sued respondent Drew Evans in his official capacity as the superintendent of the BCA. Siegel argued that requiring him to register as a predatory offender based on the dismissed kidnapping charge was a violation of his procedural and substantive due process rights and that it violated the predatory offender registration statute. Siegel also argued that the predatory offender registration statute is an unconstitutional bill of attainder. Siegel brought suit under the United States and Minnesota constitutions and US 42 U.S. Code 1983.
[31:13] Larry: And Siegel and BCA both filed cross motions for summary judgment. Oh, boy. The district court concluded that Siegel’s claims were barred by the statute of limitations and granted the BCA summary judgment motion. The district court also stated that the trial court’s judgment of acquittal on Siegel’s kidnapping charges necessarily acts as a collateral determination that the kidnapping charge was unsupported by prosecution. Now, that turns out to be significant later. And consequently, the district court stated that if the statute of limitations did not bar Siegel’s claim, it would conclude that Siegel’s acquittal on the kidnapping charge barred the BCA as a matter of law from requiring Siegel to register as a predatory offender.
[32:01] Andy: Well, then Siegel appealed the district court’s decision. The court of appeals affirmed the district court’s grant of summary judgment. And in reaching its decision, the court of appeals declined to address whether Siegel brought his claim after the statute of limitations expired. Instead, the court of appeals concluded that Siegel’s acquittal on the kidnapping charge did not bar imposition of the registration requirement.
[32:26] Larry: That’s the way I’m reading it. So, man, I don’t even know why you bother having me here.
[32:30] Andy: Yeah, it’s pretty short. The next time you show up late, you’re out. The court of appeals did not reach the statute of limitations question; they instead concluded that Siegel’s claim failed on substantive grounds. Registration is required under Section 243.166, which has me more confused. What did the state Supreme Court review in the present case?
[32:54] Larry: Well, the question at which they grant a review is whether Siegel was required to register as a predatory offender under Section 243.166. And this is a question which the parties obviously vigorously dispute and which they say we have jurisdiction to consider. They remanded the case to the court of appeals to consider the statute of limitations issue presented in Siegel’s initial appeal to that court.
[33:20] Andy: Well, then Siegel argued that Section 243.166, Subdivision 1B.A.1, does not require a person to register under circumstances where the trial court entered a judgment of acquittal on the charged predatory offense. He contends that after the trial court entered the judgment of acquittal on the kidnapping charges, he was no longer charged with a predatory offense for purposes of Section 243.166. That makes sense to me.
[33:49] Larry: It does to me too, but the BCA disagreed. The BCA argued that a person is charged with a predatory offense during the period it labels as the time of charging, which includes pretrial proceedings but ends when the trial begins.
[34:12] Andy: Hold on. Let me stop you there. Can you repeat what you just said?
[34:16] Larry: The BCA argued that a person is charged with a predatory offense during the period it labels the time of charging, which includes pretrial proceedings but ends when the trial begins. That is pretty doggone
[34:33] Andy: funny. And really, as usual, it’s not funny except to a deranged person.
[34:42] Larry: I don’t know why you’re not rolling on the floor. Do you realize how much time they would have had to spend to come up with that and to decide when the charging period ends at the time the trial commences? That is funny.
[34:56] Andy: So literally, you’ve been charged with a felony, and then you’re no longer guilty of it because the trial began?
[35:04] Larry: Well, the charging period ends when you go to trial. Then you enter a period of trial, understand? But according to the BCA, if someone is initially charged with a predatory offense but later prevails on a pretrial motion to dismiss for lack of probable cause, they are not subject to registration. However, if the judgment of acquittal occurs after the trial starts, the charging time has ended, and according to the BCA, the person who was acquitted of a predatory offense must register if they were convicted of another crime arising out of the same set of circumstances. That’s good thinking. You’ve got to give them credit. I couldn’t have even thought of that. And I think I’m pretty good at thinking. Not even you? I don’t think I could have come up with that.
[36:03] Andy: So what do the courts have to say about that theory then?
[36:07] Larry: Well, they said, quote, even if we accept the BCA’s interpretation that the statute requires “single to register,” we hold that requiring “single to register” after the trial court entered a judgment of acquittal at trial on the predicate predatory offense violates the Minnesota Constitution’s substantive due process protections.
[36:28] Andy: Now, how does the court determine whether a statute violates due process?
[36:34] Larry: They said, in assessing whether a statute violates substantive due process, we must reconcile our fundamental concept of constitutional commitment that generally people should be allowed to go about their business without government interference with the broadly recognized understanding that at all times the government must intervene to protect the interests of others and the common good. Now, that seems almost like mumble-jumble to me.
[37:00] Andy: Do you mind if we dig deeper on this? What are the prongs that that test goes after?
[37:06] Larry: Well, they said first, it is the objective of the law permissible. I mean, does the law serve a public purpose that’s within the legislature’s power to act? I think they could pass that one. Second, could the legislature rationally believe that the mechanism it chose would help achieve the legislative goal or mitigate the harm that the legislation seeks to address? And they noted, which most people refuse to believe this, that the mechanism need not be the best or most exact mechanism to achieve the purpose. It must only be a reasonable method. Third, did the legislature act arbitrarily or capriciously enacting the law? I think they get a pass on the first two. The third one causes them some difficulty in this case.
[37:50] Andy: On page 11, they stated that we also make this assessment with awareness that Minnesota is unique or nearly unique among the 50 states in imposing predatory offender registration on every person who has been charged with, but not convicted of, a statutorily named predatory offense or who has been convicted of a non-predatory offense arising from a predatory offense. Arising out of the same circumstances as the charged predatory offense. More mumbo-jumbo and wordsmithing.
[38:19] Larry: Well, they cited a 25-year-old case, Boutine v. LeFleur. The court recognized that assisting law enforcement in investigating predatory offenses by tracking predatory offenders—those likely to reoffend—tracking their whereabouts and preventing such offenders from avoiding registration by plea agreement. Now, try to understand this. There’s logic in this. Our permissible public purpose is when the legislature has power. So if you plead down and you were a predator, they’re dicing that out. That’s different than if the judge says, “Ain’t no probable cause here.” I’m dismissing this. No jury could ever convict you. There’s not enough evidence. They noted that our Boutine opinion further concluded that our mechanism requiring a person to register if they were charged with a predatory offense but agreed to plead guilty to a different charge in exchange for dismissal of the predator charge is a reasonable means of achieving those purposes. They recognized that a plea bargain is a different situation from an actual acquittal.
[39:23] Andy: Right. Well, if you don’t mind, because wow, there’s a lot. I don’t know. We need to wrap this up halfway soon. The court stated in concluding that section 243.166 subdivision 1B-A is unconstitutional as applied to Siegel, we also observe that applying the predatory registration requirement to persons who have been acquitted of a predicate predatory offense at trial by entering a judgment of acquittal as the state’s interpretation requires would be more the result of chance, whim, or impulse than the result of a reasoned deliberative legislative process and as such is arbitrary and
[40:04] Larry: capricious. And that’s how this case was won. Like I say, two of the three problems they passed, but they… There’s no reasonableness. It’s totally arbitrary to tell a person, well, we’ll let you plead out and you can bypass the predatory offense by a plea agreement. But if there was no substance underneath the predatory offense, that’s too bad if you get found not guilty because what they say, the charging period, that had ended. That is the most cockamamie stuff I’ve ever heard. And nothing suggested the legislature considered or had any facts before. Now, they said this: whether expanding the statute’s requirement to register to persons acquitted of a predicate predatory offense by trial or entry of judgment of acquittal would address the concerns underlying the law to which we have identified. The BCA provided us with no such evidence. Gee, maybe if you didn’t do summary judgment, you might have could have provided some evidence. A mechanism the legislature chooses to solve one problem may constitutionally sweep in and burden more people than absolutely required to achieve the legislation. So, like I say, you’ve got to think about what you’re doing.
[41:16] Andy: So now, I’m going to put on my little wizard hat and my fortune teller hat, and you never read the dissent, but did you happen to read the dissent in this one?
[41:27] Larry: I took a gander at it, yes.
[41:29] Andy: All right, well, so here’s what they wrote. Said, “While I concur with the court’s constitutional analysis and conclusion, I dissent from the court’s decision to reach the merits of Siegel’s constitutional claim rather than resolving the case based on the statute of limitations.” The justice continued, “Whether the statute of limitation bars Siegel’s claim is properly before us. The district court analyzed the issue, found that Siegel filed his claim after the applicable statute of limitations expired and granted the BCA’s summary judgment motion on this basis.” So, what do you say in response to the dissent?
[42:06] Larry: I’ll say the dissenting judge is smoking wacky weed. A statute of limitations is just that—it’s a law. On the other hand, the Constitution is not subject to change except through an arduous process. The United States Supreme Court has held that an unconstitutional statute is subject to attack even in those cases where someone has pled guilty to the unconstitutional statute. Wouldn’t it be great if we could pass an unconstitutional law and then proclaim that your conviction stands despite the fact that the law has been deemed unconstitutional because of some arbitrary statute of limitations? We can’t. So, I think that the judge is smoking wacky weed.
[43:34] Larry: I say that the dissent needs to go back to school and learn the law. The United States Supreme Court ruled in Class versus United States in 2018 that a criminal defendant who pleads guilty does not automatically waive the right to challenge the constitutionality of the statute of conviction on direct appeal. In fact, I remember us discussing this on Registry Matters. They held that a guilty plea admits that the defendant performed the factual actions charged but does not admit that the government has constitutional authority to prosecute those actions. The court built the Class decision upon precedents like Blackledge versus Perry in 1974 and Menas versus New York in 1975, affirming that claims challenging the government’s power to constitutionally prosecute a defendant stand regardless of any so-called imposed statute of limitations. If the predatory registration requirement is unconstitutional as applied to Siegel, he can challenge it regardless of when he brings this claim—whether it’s 50 years after the fact or not.
[44:50] Andy: Could probably bring it posthumously, huh?
[44:53] Larry: Don’t know if they take that because he wouldn’t be suffering any harm if he’s in the cemetery. It would only be his family name. I had clients tell me their family name is so important and they want to get something expunged. I said, “You’re 87 years old; you want to get this expunged? Yes, that’s your name.” I said, “But you’re 87 years old—you might not be alive another hour—but they want to spend two hundred thousand dollars on it. You could find better things to do with your remaining time.” But I think the dissent—I didn’t name the judge because I don’t see any need to— one judge dissented, and I think the judge is wrong.
[45:32] Andy: Okay, so he won partially or not at all? Or he’s not guilty of anything?
[45:44] Larry: Well, he won the issue of it being unconstitutional; they can’t require him to register based on the dismissed charge. The BCA’s argument fell apart. But the court of appeals didn’t address the remaining point, which I don’t see as relevant anyway. I think we’re going to have to register as a predatory offender after this.
[46:08] Andy: Okay, that’s good news because there was a two-week period between when he was charged and when the case began.
[46:18] Larry: Yeah, he still has convictions from this, but he doesn’t have the predatory conviction that causes the consternation—being designated as a predatory offender.
[46:31] Andy: Well, anything before we head out because that was two good news and I don’t want to give you a chance to blow that out of the water and say something bad.
[46:39] Larry: I’ll try not to, but we’re going to have a special guest next week. We’re going to talk about a church situation in South Carolina. Oh, so we are going to have that.
[46:48] Andy: A special guest eventually.
[46:49] Larry: Yes, it’s uh, the questions have come together and we’re going to have a segment on it. I think that uh, it’ll be a good one because it’s important to know why churches do what they do and this would explain it better than anything we could ever do about why they’re so careful. Fantastic.
[47:04] Andy: All right well then look forward to next week’s show uh so from there head over to registrymatters.co to find show notes and links everywhere you need to go we hey larry we sold two shirts last week and uh so that’s awesome that someone went over to fypeducation.org shop and bought some shirts and uh so those uh that that’s awesome i really really appreciate that you can head over to registry man what are they the kabuki shirts that i’m going to get a pay for when they wear them to their to their examination i think he did buy one of the kabuki ones the individual bought two shirts so all right well i have to buy him a shirt when he goes wearing that down to the office
[47:42] Larry: To
[47:44] Andy: Send the old-fashioned email, don’t worry; we’re not going all the way back to fax machines. Registrymatterscast at gmail.com. If you want to leave some voicemail, 747-227-4477. Finally, if you would become a patron, that would be so very appreciated. It would get rid of those little pesky ads I’m running in the middle of the show and let you listen with a clean feed. That’s at patreon.com/slashregistrymatters.
[48:05] Andy: All right, well have a great weekend Larry, and I will talk to you soon. Again, thanks Announcer for joining us. He has already split, which is fine; I appreciate him coming on short notice very much. I was walking through Sam’s parking lot, and he said sure, I’ll show up. But I appreciate that, Announcer. And Larry, again, have a great weekend. Talk to you at seven in the morning. Don’t call me on the phone at seven in the morning. Good night.
[48:38] Introduction: You’ve been listening to f y p