Listen to RM210: Cert Petition from Texas Denied by SCOTUS
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Recording live from FYP studios, east and west transmitting across the internet. This is episode 210 of Registry Matters. Good evening, Larry. How are you tonight?
I am awesome. But I’m tired. I’ve had a full day at work. And I’m still going at 177.
You worked more than 5minutes?
I did. I worked a lot more than five minutes today.
I think that’s about your normal runtime is about five minutes.
Usually, I go a little bit longer than that.
Okay. I’m under estimating by a hair?
A hair, yes.
It is a Friday night because their schedule conflicts over the weekend. So we have a few people in chat that are joining us. Thank you guys very much. And Larry, I found that my button does work. So make sure that you go over to the YouTube and you press the Like and the Subscribe button thing -There it is, there it is- So that people know that this content is worthwhile and share it and all that other good stuff. And you can find us all over the place and Twitter and so forth. Would you like to share any new generals of criminality tonight?
Yes, I would. For those who are engaging in team collaboration to execute removal of merchandise from big box stores, and you can pick your big box store. If you are going to have a team member inside and a team member outside, make sure that the team member outside is at the correct location so that the team member inside doesn’t lose valuable time because those moments in this high tech era are very significant. If you lose more than a than a few seconds, it can be detrimental.
I can imagine. Okay, so if we’re going to go steal TVs from the big box store, when I come out with the TV, and you say that you’re going to be in the first parking space and I walk out, you better be in the first parking space?
That’s what I’ve been learning recently, yes. That can be that can be a real problem if you’re not at the strategic location that has been so designated.
I see. I mean, I don’t know that I would have ever thought of that. Larry, I think that’s an amazing, amazing piece of advice that you shared with us. Wow, I never would have come up with that. Okay, so when I see all these movies that have some sort of getaway driver, and all the bad guys come running out of the bank, and the car is sitting right there at the front steps, it never dawned on me that that would be a good strategic plan.
Well, I don’t even know how good it was in the old days. But time is very valuable now because the technology is so awesome compared to 20-30 years ago, even 40. When you go back that, I mean, they have such immense ways of tracking people now from phones and from the vehicles. They have something that they dart vehicles with I’ve just recently learned and it will track you and they can peel off the chase. And the Dart that impaled itself on your vehicle will continue to track you. On money, they’ve always had dye packs for all my life. But now they impale a tracking device in the cash. And if you’re not sharp, the cash will continue to track you while you’re divvying it up.
Yep, yep. Yep, I’ve heard of that one. They mark them and stuff like that. Okay, well, all right. Well, now that we have that, and now, you know, our listening audience can go out and be more prosperous in their team merchandise removal endeavors. Is that what you called it?
Well, I don’t advise that behavior. But for those of you who do choose that type of, of endeavor, I mean, it would just seem like a reasonable thing. But I certainly don’t encourage that. The penalties for this are very significant. Beyond a certain level, that’s a felony, and you can be doing some serious time. So, I strongly urge you to try to find a job in this economy we’re in and do not resort to that type of activity. Do your best to do it lawfully.
But inflation, Larry. Inflation. We can’t afford these things.
Well, I think it’s probably a desire to get the things more expeditiously than what can be accrued through normal working.
I see. Okay, well, we’ve meandered around that enough. Can you give me a rundown on what’s going on tonight? Please, sir.
We have a case that was on petition to the US Supreme Court out of Texas and we have, I think, probably, a submission or two from our listeners. I know one came in that I placed in there from a person, a mother of an Illinois correctional inmate. Basically, that’s a comment. We don’t need a whole lot on that. And we’ve got some articles if we have time. And I think we have a submission from YouTube. Is that correct?
That is. We do hopefully. I mean, I picked it out Larry. So it might not be what you wanted, but I picked it out. We also have an incredibly difficult if anybody gets it Who’s that Speaker? coming up. And I’m quite proud of it. Because I worked on this quite hard. For a long time.
I haven’t even heard it myself. So I have no idea what he’s about to spring on us.
Oh, it’s good stuff, though. All right. Well, then let’s dive right in. So first, this. I found this on our YouTube channel. And it looks like someone is trying to throw some tomatoes in your direction. It says from YouTube, Mike wrote, Larry, Larry, Larry, treatment providers are somewhat like police officers, most of them are pretty good. But you get bad ones. And there’s no reason anybody should put up with a bad one. I experienced one myself, and she was very tribal. She was very political. And she did not really like me, whether you choose to believe that or not, well, I really don’t care. I was able to get another one who was very understanding, did not bring up differences with me, but at the end of the day, did what was best for me, the patient. So put that in your pipe and smoke it, Larry.
I’m really, really happy to hear someone say that. And I’ve said repeatedly that in the state of Maryland, the treatment is pure as the wind-driven snow. So I’ve not condemned all treatment providers. But what I have said repeatedly, I think we’ll find it in our FYP library, is that frequently it’s a collaborative fishing expedition between the treatment team which consists of not just the counselor, but the probation officer, and often the registry official. And they share notes and they share confidential information. You’re forced to disclose with a blanket release of information what’s discussed in treatment. So my position is that treatment that’s provided, where you cannot have confidentiality is probably not going to be nearly as effective as treatment where you can actually feel free to make disclosures and work on the triggers and the things that are causing you to not progress as ideal as we would like. But if he was able to change his treatment provider, and get a good one, more power to him. I’m glad of that. And I’m happy to hear that. In my state, I’ll just tell you this. In my day job, I’m working with a former treatment provider who worked for our Department of Corrections for many years, more than 20, I think. And all the things that I say she’s saying, and she is offering to testify in any type of proceeding that would help to bring relief to those who are in what I would term as a collaborative fishing expedition. So this is not something I invent and make up. I think we’ve even got someone in right now listening on YouTube from New Mexico that would probably give a thumbs up to what I’m saying but in this state, it is far from being what he’s describing here. But I’m glad that it does happen somewhere. But I don’t see that here.
I’m pretty sure the person you’re referring to in chat is a shill and that’s just someone that you pay and he’ll do what you tell them to do.
I’m pretty sure that’s not the case.
All right. Well, let’s continue moving right along. This one came in via NARSOL and it says, my son is incarcerated at Taylorville Illinois Correctional Center in Illinois. They recently decided that this facility would be for PFRs only. I’m sure you are aware that a lawsuit was recently won regarding Illinois keeping PFRs incarcerated beyond the end of their sentencing, often years beyond their outdate. Apparently, they aren’t satisfied with our justice system and feel they should be correcting the inmates’ sentencing. They seem to be experiencing what, on the surface, looks like an astounding amount of incompetency due to COVID. They are on lockdown. There are no educational classes being offered. They are being denied yard for the most part. Due to the ongoing supply chain issues, there’s no commissary and though they said they were working with other vendors, they still can’t seem to get it right. They placed one order, sent it all back and said it was because the person ordering didn’t understand what they were doing and ordered all of the wrong things. They have no coffee, no personal care products, no food alternatives. The meals consist mostly of white flour, sugar, and salt and contain very little nutrition to begin with. And now they’re being given smaller and smaller portions. They are being continually moved around from house to house as they reorganize over and over again their plan to handle COVID. I don’t see how this helps to quarantine the positive cases only to decide to move them all around exposing other healthy inmates. Once a week, they reset the phone and TV systems and sometimes the inmates lose half their channels. This week, they have been missing half the channels for only two days now. There have been times where they’ve lost them for as much as two weeks. They are given very little explanation as to what they can expect and are met with anger when they ask questions. No one, not one aspect of the inmates’ lives are working. I can’t help but wonder if it’s even possible for this level of widespread incompetency. Considering their attempts to lengthen sentences on their own, I wonder if this isn’t a new attempt at vigilante justice. Many of the staff are open about their disgust and dislike for any PFRs. Isn’t malnutrition that leads to not just hunger, but also disease like diabetes, heart disease and cancer giving a death penalty to them? Maybe I sound like I’m being overly dramatic, but I really don’t think so. They have a basic human right to live, to have a chance to start making better choices for themselves so that when they do get out, we all live in a safer society. When you take away their food, exercise, educational opportunities, and even basic escape in the form of entertainment, I feel they’re getting too close to the line of cruel and unusual. Thank you for taking the time to listen. And any help you give to bringing light to their situation will be greatly appreciated.
Well, we just brought light of this to 10s of 1000s of listeners and YouTube viewers across the country. So that’s the first step. But there’s a lot packed in here. And I think I’ll start with one point that’s really dear to me, which is keeping people in prison beyond their date. I don’t want to sound like I’m a prison administrator. But they’re not really the responsible parties for that. That system in Illinois comes about because it’s a two headed monster that’s at work. You have the prisoner review board that sets the conditions before they can be released and to their mandatory period of supervised release, that period of MSR, I believe it’s referred to. I don’t think I could hold the guards or the wardens responsible for that nuance in their statute. And in fact, the courts have said it’s wrong. And they have ordered them to fix it. But as we realize from those have been listening for years, the courts can’t force the legislature to legislate or appropriate funds. Think we just talked about that in Alabama just recently. About four years worth of- I think that was two episodes back- maybe four years’ worth of litigation. And the Alabama legislature hasn’t appropriated very much money towards resolution of those problems. So I would not be quite as harsh on the prison administrators as this mom is being. In terms of the incompetence, again, I have said for the years we’ve been doing this that the best and brightest do not seek a career in corrections. The salaries are not that great, the working conditions are not that great. And with COVID, the working conditions are even more less desirable. I started to say horrible, but less desirable than what they were. You’ve got staffing issues in terms of trying to find enough staffers to run the prison. You’re running a lot of overtime. People are quarantined because of the people moving from 14 days to 10 days to five days. And I don’t know what it’ll be tomorrow. But you have all those issues that prison administrators are facing trying to get enough staffers. They’re not immune to that. If you look around in the free world, you’ll see restaurants that are working reduced hours. You’ll see all sorts of supply chain issues. Folks, we do not have enough workers in the United States right now. We have 10.5 million unfilled jobs. And no one wants to take these jobs. People are quitting jobs in record numbers right now. I think that November, I think this last month we had data that a record number of people quit their jobs. And so therefore, I don’t think I would hold the prison administration responsible for that. So when you end up throwing people in for duties that they are not really properly trained for, it’s possible you could have mistakes that she described with commissary that she described as incompetence. But that doesn’t change the bottom line. We have a duty when we put people in cages when they can’t provide for themselves, we have to figure out a way to provide the basics that there constitutionally or by statute, we have to figure out a way to provide that. If we can’t do that, we need to go to our lawmakers and say, Hey, folks, we need to cut some of these people loose. We’ve got more people than we can handle that we have staffing for. Of course, that would be a very unpopular position. But I think on a final note, the Illinois government is continuously fighting budgetary issues. They’re one of the most poorly managed states we have in the country, when you look in terms of their fiscal, their balance of their revenue versus expenses. Illinois is a horribly managed state, fiscally. So I don’t think I would be unfair to say that the taxpayers there have expected more from their government than what they have been willing to pony up in taxes, and the efficiency of what they have ponied up in taxes has been less than stellar. So they don’t have a lot of spare capital. Diverting it to prisons is probably not all that popular of a move.
Then why doesn’t the conversation move towards something of having fewer people locked up?
Well, who would take the leadership on that? I mean, here’s the problem. See, someone has to be bold and say, we don’t have enough people in prison. Well, there’s a party out there that’s making their primary agenda for the 2022 elections, that we don’t have enough people in prison because crime is out of control. And we’re being too lenient on crime. So who do you think in Illinois… Do you think the governor or the Attorney General, or the democrat majority, who do you think would take the leadership saying we need to thin out our prison population? Who would do that?
I get what you’re saying, but isn’t the party that’s going to make that their primary platform all about saving some money then too?
Well, that’s one of their intellectual dishonesties. They are very much about saving money, except for when it’s things that they believe in funding. And prisons are one of the things that they generally are very willing to fund. They make that a priority. I mean, there have been exceptions, and I don’t like to use absolutes. There have been instances where people have taken the leadership from the Republican Party, and they have to be the party who takes the leadership because if not, you get vilified by them. There have been instances, even in your state of Georgia, where the former governor took a strong stand on trying to cut down on Georgia’s record incarceration rate. It hasn’t been all that effective. Georgia has still a very high incarceration rate. But at least maybe he bent the curve a little bit. So that was Governor Nathan Deal. And it’s just that this is not something that you can expect any bold leadership out of the Democrat party in 2022. So I would urge mom to talk to some people on the other side of the aisle, even though they’re in the minority. And I’ve stressed that. They can’t pass anything in Illinois without Democratic support. But if the Democrat party knows that they’re not going to be vilified, that there’s substantial Republican support for this, they will very likely follow suit, but they’re not going to take the leadership.
Very good. We’re going to play the clip that I pulled out there for “don’t talk to the police.” Okay, so I’m going to spring this on you. And it better be right. And if you don’t like it, well…
Well, there are five reasons not to talk to the police. So you don’t have to do it in any particular order. But there were a total of five going to be played over the series.
I gotcha. Well, he didn’t say this is number one. But anyway, here we go.
Unknown Speaker 19:05
Now, here’s part of the problem. The heart of the problem, as Justice Breyer on the US Supreme Court explained in 1998 is, quote, The complexity of modern federal criminal law codified in several 1000 sections of the United States Code, and the virtually infinite variety of factual circumstances that might trigger an investigation into a possible violation of the law, make it difficult for anyone to know in advance just when a particular set of statements might later appear to a prosecutor to be relevant to some investigation. One expert on criminal law recently noted that estimates of the current size of the body of federal criminal law vary, although it has been reported that the Congressional Research Service can no longer even count the current number of federal crimes. That’s right. Even the federal government has lost count. These laws are scattered over all 50 pages of the US Code, encompassing roughly 27,000 pages. Worse yet, these statutes often incorporate by reference to the provisions of administrative regulations. Estimates of how many such regulations exist are even less well settled, although the ABA thinks there may be nearly 10,000. Here’s one of those 10,000 federal criminal statutes on the book that you’ve probably never heard about. It’s called the Lacey Act. 16 USC Section 3370 says it’s a federal offense for any person to import, export, transport, sell, receive, acquire or purchase any fish or wildlife or plant taken, possessed, transported or sold in the violation of any law, treaty or regulation of the United States or any Indian tribal law or any state or any foreign law. People have been convicted in federal court for violating that statute because they brought back a bony fish from Honduras not knowing that Honduran law, not American, but Honduran law forbade the possession of the bony fish. People have been convicted of the law because they were found in possession of what’s called a short lobster, a lobster just under a certain size. Some states forbid you from possessing a lobster, if he’s under a certain length, it doesn’t matter if he’s dead or alive. It doesn’t matter if you killed it or if it died of natural causes. It doesn’t matter if you acted in self-defense. Did you know that? Did you know it could be a federal offense to be in possession of a lobster? Admit it, raise your hand if you did not know that. There’s the problem. And that’s only one of 10,000 different ways.
I pulled that clip because if you talk to the police, you may admit to doing something that you don’t even think is a crime. But there’s a law for it.
Absolutely. And another one of the points that I would add to that, although I didn’t know which particular segment was coming, is that when he when he announced all the people that have been prosecuted about stuff they didn’t know existed. How is it that that’s possible Andy? it’s because- we keep telling you- we have provided law enforcement with greater resources than reasonably necessary. And a lot of our followers are more than willing, have been more than willing, and will continue to be more than willing to vote for whoever says, we’re going to give more to law enforcement. Regardless of their stance that we should peel back on the number of laws and the questionable prosecutions, they continue to vote for the people who say we’re going to do more of this. Now, to me that is somewhat inconsistent and intellectually disjointed. If you want less of something, you have to provide less funding to make that something possible.
Tell me, is the term blue law, a law that was written 100 years ago that has no relevancy today, but it’s still on the books, is that the right way to characterize that?
That was the, you couldn’t open on Sundays, right?
Well, I have heard of laws that you can’t eat chicken with a fork on Wednesdays. I have no idea if that’s true. That’s just something that’s rattling around in my brain that there is a law somewhere that says something completely ridiculous like this. And I’m going to call that a blue law. But that might not be the right term. So but you could ostensibly be prosecuted for something like that, unless they rolled the law back, but it could still be on the book. And you could be like, the prosecutor says, Hey, this thing is here. Like, I didn’t know I wasn’t supposed to eat chicken with a fork on Wednesdays.
Well, I’m not sure there’s anything quite that hideous. But there’s some really questionable stuff on the books. And as you know, they put their hand on the Bible. And they say they’re going to enforce the law and that includes all the laws. As a matter of fact, a lot of prosecutors are taking a lot of heat right now. I think we played a clip last episode about what happens when the prosecutors like Crasner are choosing not to take action. We were showing what the talking points are going to be in the next election cycle. And that clip we played from Fox News had to do with prosecutors who were unilaterally deciding that they won’t do something. So if you don’t prosecute, you get vilified, potentially. But you’re correct. We have to either repeal or the law has to be declared unconstitutional. That won’t necessarily get it repealed, but it’ll prevent enforcement if it’s declared unconstitutional. But repeal is something that’s difficult to do, because some of the laws that are not enforced are very difficult to repeal. And I know that makes no sense. But they are. I mean, when you start repealing laws, people say you’re soft on crime. So very few lawmakers want to make their campaign, I’ll tell you what I’ll do if I get elected. I’m going to go through the criminal code and try to thin out what we’ve got on the books.
I don’t think that would go over well, though. (Larry: Probably not.) It would make it easier to understand that you’re not sifting through a whole bunch of muck and goo from 100 years ago, things that are completely irrelevant today. Have you ever heard of the idea that a- I don’t want to use the word all- but let’s just use the word all. All laws should have time limits? There should be some level of expiration that if you still want this thing to be a law, then we’ll have to recertify it. (Larry: I have heard of that.) Do you think that this is a completely dumb idea?
I hadn’t really thought it through that carefully. I have heard of that, though. I’ve heard of that. And similar things about if you pass new things, you should have to repeal an equal number or greater number for that, particularly in the regulatory scheme I’ve heard of such things as that. But some laws, it just doesn’t seem like that our values would change that much that we would need to revisit them and other things. Society does evolve and things that were illegal are no longer. I mean, drug possession is a great example of that. I mean, you couldn’t, for the last 30 years, you couldn’t get a Colorado jury, particular a Boulder, Colorado jury to convict anybody of drug possession. Even though it was on the books, if you brought a case like that, they’d just laugh you out of the courtroom. They just weren’t going to convict anybody of that. That has not totally evolved across the country to Alabama, Mississippi, Louisiana, and places like that. But we do see evolution in terms of what people believe should be against the law. But some things don’t change. I don’t think there’s been a whole lot of effort to decriminalize murder. So there’d be some things that be kinda, I think, absurd to go back have to revisit them on a regular basis. But they do that. That’s not so far-fetched on civil things, particularly like tax reform. What they do on tax reform is they pass a 10-year tax cut. And they know the way that that’s staggered, that the person who passed is not going to be around at the time that the 10 years is up. I mean, we have our presidential terms. You just, it’s going to be somebody else that has to deal with that. You’re not going to serve 10 years as president under the current constitution. So at the time that comes up for sunset, the sitting occupant of the White House is going to be blamed for a tax increase, which would be merely returning taxes to the rate they were prior to the tax cut. But that does happen. But I don’t see that really is going to be very likely with criminal sanctions.
I’m thinking about something like the Patriot Act that they have to- I don’t know what the timeline is- but I know that they continue to go back and recertify the Patriot Act. Reauthorize it, whatever the right words are.
They do. They reauthorize the funding and they do have some level of debate about the continuation of the provisions of that because that was supposedly an emergency thing that was done but you notice it’s been 20 years now and the emergency still exist.
Yeah. We still had a… what was the threat level? I forgot. You’d see it on the bottom ticker on the news, and we were like in orange for forever, and then eventually they stopped doing it because we were going to be at Orange for forever.
So yeah, but try to dismantle that apparatus that sprung up to… I mean, I hate to tell you, folks very few things are dismantled once they’re created. I mean, I could name one or two in my life, but it seldom happens. I can tell you one. After the savings and loan debacle of the 80s, the Resolution & Trust Corporation was created with intent that it would sunset after a number of years, the RTC, and it did. And it doesn’t exist anymore. So they were disposed. They disposed of the problem assets because of the deregulation of savings & loans, and they allowed them unlimited lending, and areas of commercial and strip mall development, all the stuff that they didn’t understand how to do. Because savings and loans had always been into single family, primarily single family mortgage lending. And so they deregulated them and they had real estate bust and the RTC came in, scooped up, we bailed out the savings and loans. Merged many of them. And that was something that did sunset after a number of years. But those things are rare. I mean, you create a bureaucracy. We now have a COVID industrial complex at work across this country that’s going to be difficult to dismantle. It happens.
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Let’s move over to the case that you wanted us to talk about. And this one comes from Texas. I will allow you the privilege of setting it up.
Well, I will do my best to set it up. So this is a case that has been taken all the way through the trial courts, through the Fifth Circuit Court of Appeals, and was on cert petition to the United States Supreme Court. In the last few days, the United States, I believe it was Tuesday, Monday or Tuesday, the USA Supreme Court announced its decision that it would not grant cert, which means that that the Fifth Circuit decision stands. So we’re going to be talking about a case that was brought by our good friends in Texas and by Attorney Richard Gladden and Bill Habern of Texas. And I’ll do my best. I’ll tell you that I’ve not done a lot of prep as I typically do, because I have so many distractions this week. So some of the stuff I may just say I’m not familiar enough to answer, but I’ll do my best.
All right. Well, as I wrote, I did all the prep for this one. So Larry, you put this thing in there. It says a cert petition out of Texas to be heard by the Fifth Circuit. It’s Hearn and some others versus McCraw. And I guess the overall synopsis is that these guys took plea deals in the early 90s. And under their plea bargains after their supervision, there wouldn’t be any registration requirements. Do I have that tight?
You have it mostly right. But it was actually… the factor that’s different is the cert petition was to the US Supreme Court, but the rest of it is factually correct.
Okay. Um, so if that’s all it is, then we’re done, and we can just move on to the next thing on the program?
Not quite that fast. We’re not done yet.
Um, but it says your duty to register as a sex offender ends on the day your probation is discharged, or if you’ve received an order of deferred adjudication for the offense, your duty to register ends on the date the court dismisses the criminal proceeding against you and discharges you. Didn’t the petitioners have this in writing?
I think they did. That’s what the litigation was about. But that doesn’t change what the Texas Legislature did. It amended its Sex Offender Registration Act, known as SORP, and the amendment created a duty to register, 10 years for Hearn and Miller and Jones, the petitioners and I’m not sure about that. I thought that it extended their duty to register beyond the 10 years of what had originally been. But the law changed. The bottom line is the legislature changed the law. And this is what the litigation was about.
All right. And so that was in ‘97 that they changed it. And then 10 years from then, they would have gotten off the registry in 2007, I guess if my math is right. That’s like 15 years ago? So everything is good from there then. Right?
Well, apparently there was more amendments as is typical with Sex Offender Registration Acts. Only New Mexico doesn’t amend theirs very often. But apparently, there was another amendment in 2005 that made lifetime registration. Andthat’s what these guys are up against is lifetime registration.
So if I understand how this works, these guys signed agreements with the state, the petitioners honored their side of the agreement by not reoffending and following the rules and all that stuff, and the state keeps moving the goalposts. Isn’t that kind of like how the US treated the Native American Indians back in the, like, the chuckwagon days?
Well, I’m not sure. I was just barely born in those days.
You weren’t a part of those treaties? Not quite yet?
Noo. So but yes, it’s very similar. The rules were changed. Now, since I wasn’t involved with this litigation. I do not know exactly what the signed agreements were. If they were that crystal clear that their registration would end, but that’s what the allegations were, as best I could decipher. It doesn’t look good that the state of Texas was able to change the rules multiple times and tell people that if you behave yourself that your registration will end it. When you’re discharged from supervision, it’ll end in 10 years and then oh, well, we were just kidding. Now it’s lifetime.
Sorry. That’s a bait-and-switch if I’ve heard one. Would you like me to read what they asserted in the original complaint? Or I guess this would be the original cert, perhaps?
Sure, because like I say, I’ve given this minimal preparation. So go ahead.
The original petition was filed in Austin on June 8, 2018. They allege that by imposing a duty to register as PFRs, the state of Texas had breached the terms of petitioners and negotiated plea bargain agreements in violation of the 14th amendment. They further allege that since 1997, respondents had continuously applied and enforced the state’s amended statutes against them on an annual basis that the respondents had done so with the applicable two-year statute of limitations period immediately preceding the filing of their complaint, and that respondents conduct within the limits period limitations period, therefore, provided the basis for their actionable claims. What happened then, Larry?
You know, did you understand what you just read? Cuz I didn’t.
What I believe to be is that because they were continuing to be harmed… I’ll use the disabilities and restraints. Because they continued to keep having this apply that keeps moving the goalposts of when the statute of limitation ends. That’s the way that I understand it.
The complaint was decided in a bench trial in district court in August of 2019. The petitioners’ claims were barred by the applicable statute limitations governing the Texas law: two years measured from the date the Texas statute was amended in ‘97. Which is similar to what the state argued in our challenge here in New Mexico, where we argued that people arriving here from other states were entitled to some due process. And they argued that the statute of limitations would accrue from the time you became aware. And they prevailed on that argument. When you became aware of the state asserting you had the duty to register. So what Texas appears to have said here was that you had two years from the time that the law changed, that you had a two-year notice at that time you had a new duty to register, which is the same argument they said here. You had, I think it was three years, but they said you had ample time to know that you had to register and to assert that you did not agree with that. And you didn’t. Therefore, you’re time-barred. Well, we argued it was a continuing violation, because it was continued to happen. And our federal judge didn’t buy it, which sounds very similar to what this federal judge did.
Oh, so they had two years, or until sometime in 1999? Like even from the original one? Or would that even apply after the the 2007 amendment? Do they reset the statute of limitation every time they do it?
Well, that would be my argument. I don’t know if that’s what Mr. Gladden argued. But that would be my argument is that that, yes, perhaps maybe we should have said something after the ‘97 change, but then they changed it again in 2005. So we had until 2007. But here we are all these years later.
So yeah, so here we are 15 years later?
So still, you’d be time-barred because you didn’t do anything within two years of those changes. But that’s certainly what I would have argued.
And just now, they’re trying to run up the chain of command on what grounds? They passed the statute of limitations by about 20 years.
So well, not being as fully prepared as I would like, I think that the argument as I interpreted it was that this was just fundamentally wrong, that there was a binding contract with the state. And the state could not change that. And apparently, that did not sway any of the courts along the line. All the way from the district court, all the way to the Supreme Court. Because this was a cert petition that was taken to the Supreme Court. The US Supreme Court decided it did not want to review the work of the Fifth Circuit, which was the reviewing court that reviewed the work of the District Court. So yes, this went up the chain with no traction. None whatsoever.
And there’s some terms that they use that I would kind of like to dig into a little bit. Some legal thing says something about a continuing violations doctrine? and that’s in US Code… and is that subsection 1983? Is that what the Double S thingy means?
Well, that’s what we argued in my case- our case, not my case, but our case- here that from the time the person was told that they were PFR under New Mexico law and all that time from whether it be weeks, months or years that the violation of their rights, since they were not given a due process to see if it was equivalent to one of ours, we argued to that was a continued violation. As best I can understand it, the continuing violation doesn’t apply. And I don’t think I’m sufficiently prepared to explain the continuing violation doctrine to where I would feel comfortable doing it. But we did not prevail in that and neither did Mr. gladden.
Because it says that in four other districts, in the fourth, sixth, seventh and ninth, there were similar findings that there were violations, like continuing violations, and they prevailed in those other districts- Circuit, excuse me. And did they grant an en banc hearing?
I don’t believe they did. I believe that the panel decision was the final one. And then they appealed by filing the cert petition to the Supreme Court off of the three-judge panel decision. And cert was denied this week. So the panel decision stands.
That doesn’t sound good. Do you think that it’s typical that en banc hearings occur?
Very rare. It is extremely rare. I mean, the courts would never be able to do the work. You have 12, 15, 16 sometimes- maybe in the Ninth Circuit, over 20 judges- and you have to get them all together. That’s strategically a nightmare. And you have to present the case all over again after the panels heard it. And it’s just not practical. And it has to be an extraordinary situation where the full court reviews the work of a panel. So the fact that it wasn’t granted full court review is not rare. It’s very rare that you are granted full court review.
There were some other terms in there that I wanted to try and dig into it. One of them was inter alia. How do you pronounce that correctly?
Yeah, let’s let Andres explain that one.
No, let’s not. Can you not tell me what inter alia is?
Okay, well, it’s a phrase used in pleadings to designate that a particular statute set out therein is only a part of the statute that is relevant to the facts of the lawsuit and not the entire statute.
See, why did you even need me here?
Well, I was hoping that you would read some of these things, because they’re right there.
Well, that’s assuming my screen’s working at the moment.
Oh, did your screen turn off because you haven’t used it in a while?
Yeah, but it’s back on.
Okay. Um, and then there was another one in there about equitable doctrine of laches. What is a lach?
Something on your car door?
Right, right, right. It’s what keeps my house door closed, I got that. But these are, I don’t know. These are new terms.
Without looking at the screen, I’ve had to argue that before. So I can explain that one. But you’ve got a good explanation here as I could do or better. So the doctrine of Laches is a legal defense that may be claimed in a civil matter that asserts, basically, you can’t lollygag around. If there’s an unreasonable delay of pursuing a claim that you’re aware of, then that prejudices the defendant. So that’s the doctrine of laches. So you do something 5-10 years ago, 20 years ago, whatever, and you come in and say, I want to raise this issue now. You can’t do that. And that’s what that doctrine is.
Am I right in saying, well, I didn’t know what the law was. So it doesn’t apply to me? But now that I know, we can go forward?
Well, I mean, you can assert that, but the defense will argue that you’re barred, and that’s what they will use is that doctrine.
Okay, because I mean, the way that I read that, that’s what that says is that if you don’t know about it, then you can extend the time limit? I don’t know. I forgot. But no, that’s not what that means?
Apparently, the court didn’t buy that in this case, either.
Okay, I gotcha. All right. Well, that is this particular case. Not case, this is the cert petition for the Fifth Circuit by Richard Gladden.
We could possibly at some point have Mr. Gladden. When you take one like this, it’s very devastating. He’s got a lot of hours that will be uncompensated. This case went through trial, through the Fifth Circuit, through request for full court review through the Fifth Circuit, a cert petition. He’s got a lot of sweat equity in this that he’s not going to want to come on the podcast two days after, three days after. I mean, you’re just like devastated emotionally. But if it’s of interest to people, we can probably have him on at some point. And he’s very eloquent, very talkative, but he’s very eloquent, and he could probably explain these various claims in more detail. We could make an entire episode out of this about. I think the lesson I would take from this, though- what we talked about in pre-show- is that the Supreme Court has been given many opportunities to revisit registration. And each and every time they say, no, we will not take that case. We will not take that case. And I think those who continue to be optimistic that there’s going to somehow be a silver bullet, and the Supreme Court is going to save the day, I think you should look at the trends of what’s coming from this court. And I don’t think that that’s a likely scenario. We’re going to have to continue to fight these cases in the state courts and the federal courts where there is favorable case law, particularly like the Sixth Circuit. But the Supreme Court is not going to save us now. There is a case that we talked about out of Kansas, remember when it says why are we here? What are we litigating? Right? There is a cert petition going to the Supreme Court on that one. The notice has already been filed. Now that would be a horrible case for them to take. Because that would set us back for a long time if they were to grant cert because they would uphold the Kansas Supreme Court if they did grant cert on that one. So this would be one where you would hope that they don’t grant cert. There’s no indication that they have any interest at the Supreme Court of dealing with us. So folks, we’ve got to move on to other strategies. The Supreme Court is not your savior.
Because I mean, we did have something that landed on the Supreme Court’s lap with the- I can’t remember the name of the- but it was about the delegation of power kind of thing. Wasn’t that like from Pennsylvania where it originated? Was that Muniz?
No, that wasn’t. But that case was not really about PFRs. That was about trying to dismantle the administrative complex, and the conservatives wanted to dismantle the administrative complex. And Alito made some comment in his dicta that he found it problematic that for an unpopular group of people that that nobody wanted to hear their claims. Well Alito, you’ve had plenty of chances to grant if you really wanted to hear these claims so bad. But you didn’t want to hear these claims. You wanted to hear that claim. And let’s be honest about that. But that court at that time, they were short of justice. And so therefore, it ended up on a 4-4 split and the lower court decision stands when when you can’t decide a case. So that’s what happened on that case, but I don’t remember the name of it.
Drawing a blank on it. And somebody in chat should have told me by now, but no one did. But that’s okay. Um, all right, Larry, I think we should play last week’s Who was that Speaker? and then move on to the last one and wrap things up because it’s a late night for you. And we’ll cut it from here. Sound good?
Sounds good to me. We’re not gonna do any of these lovely, beautiful articles that I’ve worked laboriously over the last three weeks to assemble. (Andy: No.) Well, then wait and see if I gather any more articles for you people.
Last week, I played a super easy one. And I know it was easy. I didn’t have a lot of time to go digging, but I promise you the one this week, you’re gonna have to work for it. So that last week, I played this one.
Bill Clinton 48:38
I did not have sexual relations with that woman.
Did you hear it play? (Larry: It played.) It did? I didn’t hear it. I’ll play it again just to make sure.
Bill Clinton 48:50
I did not have sexual relations with that woman.
Okay, it was over on the wrong channel. Yeah. So obviously, that was Bill Clinton, and that was when he “didn’t” have his sexual relations with Monica Lewinsky. But he ended up getting… what’s the word? When Congress does the thing to kick them out, but they didn’t kick them out?
They impeached him. They did not convict him.
Right. I couldn’t remember the impeach word. And that was over that. So he lied in front of Congress. So they impeached him, but wasn’t removed. Alright, so that was last week. And Will I think it was that wrote in first and yes, I know. It was easy. I’m sorry. But this one, I promise you, you’re gonna have to work for it. And I’ve already had someone test it out and they didn’t get it. But here we go. This is for episode 210. So send me an email message with WTS210 or something like that in the subject line.
Who’s that Speaker? 49:48
It was through a direct message on the application Twitter. I just sent him a nice message, just Hello. I’m a huge fan. I knew that Hillary Clinton would be running for president in the year 2016. And I wanted to see if _ was still up to the same antics. I knew that it was going downhill and really fast. I was disgusted. That’s part of the reason that I came forward.
So, do you know who it is, Larry?
I have no idea.
Good. And do I need to play it again do you think?
I don’t think it’ll do any good.
Okay. Well, that is, Who’s that Speaker. If you know who that is, send me an email message. And I will applaud you and give you great accolades if you get it right. But so good luck. And with all of that, Larry, I think that, uh, we can, we can close things down. If you want to reach out, you can find all of the show notes and so forth at fypeducation.org. Leave voicemail at 747-227-4477, email@example.com if you want to shoot me an email message. And then of course, the best way to support the program is patreon.com/registrymatters. Larry, I appreciate all that you do. And I thank you for putting in such a long day and I know you have a long weekend. And I appreciate all of that. And I hope you have a great rest of your weekend. And I’ll talk to you soon.
It’s a pleasure to be here with you tonight.
Great, take care. Bye.
You’ve been listening to FYP.