So then what was the state of Nebraska’s response? They articulated that it was not concerned with his Colorado conviction, but instead argued that Nebraska’s 2003 conviction subjected him to lifetime registration under the 2009 amendments to SORA. I actually agree with the state; literally, that’s what it would have done. Erhard asserted his belief that his period of registration for his 2003 conviction ended in 2012. Remember, that’s three years after they had the amendments in 2009. Neither of them were concerned with his Colorado conviction. Neither party presented any evidence about Erhard’s Colorado conviction.
Can you go into some detail about what the trial court did? Well, sure. They issued an order granting his motion to dismiss the criminal charge for failure to provide the address change. The district court determined that to apply lifetime registration to Erhard, there had to be either a previous conviction of a PFR offense or an aggravated charge defense. The court found that neither of those requirements existed. There was no information on the PFR offense and no information about the Colorado conviction other than it occurred in 2006 and that he was required to register for a period of 10 years. Therefore, applying the 2003 statute, the court determined Erhard was required to register under SORA for only 10 years, which had ended in 2013. As such, it concluded Erhard was not subject to SORA on June 21, 2024, the date he was alleged to have failed to report the address change. And of course, the state appealed.
Of course, yes. I remember this is the state that’s real conservative with money and they watch every dollar like a hawk and don’t waste a single penny of taxpayers’ resources. You’ve got that right? Yes, of course. Yes, they did appeal.
[19:58] Andy: so then the state asserted in 2009 amendments to SOAR apply to Erhard’s sentence and lengthen the period he was subjected to SOAR from 10 to 25 years. Now, how did they justify that position? Well, [20:14] Larry: as previously stated, SOAR 294005, subsection 1B2, as amended in 2009, provides that the registration period is 25 years if the PFR was convicted of a registrable offense under 294003 and carries potential imprisonment for more than one year. Erhard was convicted of PFR assault of a child, which was a Class 3A felony with a maximum sentence of five years at the time of conviction. Five is indeed more than one year, right? And then they looked at the statute and it now carries a maximum of three years, which is bizarre that it went down, but still three is more than one. So the state argued that because Erhard was convicted of a registrable offense and it continues to be punishable by more than a year, he’s required to register for 25 years. [21:14] Andy: So then how did Erhard counter that argument? [21:18] Larry: He countered it with simply saying that the retroactive application of the amendment violates the ex post facto clauses of the U.S. and Nebraska constitutions. [21:28] Andy: But it’s a civil regulatory scheme. Both the U.S. and Nebraska constitutions provide that no ex post facto law may be passed, which purports to apply to events that occurred before the law’s enactment and disadvantages defendants by creating or enhancing penalties that did not exist when the offense was committed. Such laws will not be endorsed by the courts. [21:52] Larry: However, the retroactive application of civil disabilities and sanctions is permitted. As the court pointed out, it is only criminal punishment that ex post facto clauses prohibit. [22:03] Andy: Then the court stated the relevant question is whether 29-4005 imposes civil sanctions or criminal punishment. How do they make that determination? [22:15] Larry: Well, that’s quite strange. You should ask that. To determine whether a statute imposes civil sanctions or criminal punishment, a court must apply a two-pronged test. And they cited State versus Harris, which is a state case. They also referenced Smith versus Doe from 2003. [22:37] Andy: I have heard of that one. [22:39] Larry: And under this test, if the intention of the legislature was to impose punishment, the inquiry is terminated because we assume you did what you intended. So there’s no need to examine further; it’s unconstitutional. If, however, the intention was to enact a civil regulatory scheme that is civil and non-punitive, the court must further examine whether the statutory scheme is so punitive either in purpose or effect as to negate the state’s intention to deem it “civil.” And then they say because ordinarily we defer to legislatures stated intent, only the clearest of proof will suffice to override that intent and transform what has been denominated as a civil regulatory remedy into a criminal penalty. Now, how would we go about having the clearest of proof? We’ll get to that in another episode. [23:33] Andy: Well, here we go again. How do they make that determination? I know what’s coming without even knowing. I know. [23:40] Larry: They apply the Kennedy versus Mendoza-Martinez test as established by the United States Supreme Court in 1963, which is 372 US at 144. [23:54] Andy: You have that like tattooed on your forehead, don’t you? You know that one inside and out, don’t you? [23:58] Larry: Well, I’d have to read it, but I’ll go through the factors of what they chose. There are actually seven factors, but I don’t think they relied on all seven. Let’s just go through them. Number one, whether the sanction or scheme involves any affirmative disability or restraint. In Nebraska, I don’t believe there are any restraints in state law whatsoever. Whether the regime has historically been regarded as punishment. Whether it comes into play only upon a finding of guilt and not even lawyers can explain that one. I agree with you; most lawyers can’t understand it. Whether the operation promotes the traditional aims of punishment, retribution, and deterrence. Whether the behavior to which it applies is already a crime. Whether an alternative purpose to which it may rationally be connected is assignable for it. And whether it appears excessive in relation to the alternative purpose assigned. I don’t understand either one of those two, but I understand the one that lawyers can’t understand. [25:05] Andy: All right. The Nebraska Supreme Court has previously found that the legislature enacted SORA to establish a civil regulatory scheme to protect the public from PFRs. State versus Harris. What is super, by the way? [25:20] Larry: We’ve previously mentioned that the case has already been cited. Okay, we discussed it up above. [25:32] Andy: Okay. Well, I mean, what does “super” mean? Is that an abbreviation for something? [25:39] Larry: No, it means we already discussed it above. So when you cite a case over and over again, that’s what you say. [25:39] Andy: I thought you were telling me that we talked about it before, but I got you now. All right. Well, that decision was made prior to the 2009 amendments, right? [25:48] Larry: Correct. And they have to begin the inquiry by determining legislative intent because that starts the new inquiry. If anything has changed since 2009. [26:01] Andy: All right. And then the court noted that the bill was to bring Nebraska in compliance with the AWA, the Adam Walsh Act, from 2006. The court referred to the introducer’s statement of intent, which read: “The purpose of the Adam Walsh Act Protection and Safety Act of 2006 is to protect the public, in particular children, from violent PFRs via a more comprehensive nationalized system for registration of PFRs.” [26:29] Larry: They did. They didn’t say that. And they stated also that the statement of intent shows that the bill has a dual purpose: protecting the public from PFRs and conforming to national standards regarding various aspects of PFR registration requirements. Then they referred again to the introducer’s statement of intent, allegedly for bill 25. Therefore, the court determined that it was the legislature’s intent in amending 29-405 to reform the civil regulatory scheme for PFR registration. And it was not the legislative intent to punish anyone. You can’t imagine they would intend to punish anybody. Do you? [27:06] Andy: No, definitely not. I believe that they intend to impose disabilities and restraints though. All right, well then they went on to the intent effects analysis or the Kennedy-Mendoza-Martinez factors. The court stated, “These are the Kennedy versus Mendoza-Martinez factors we consider most relevant to our analysis.” Number one: whether the statute promotes the traditional aims of punishment, retribution and deterrence; number two: whether it imposes an affirmative disability and restraint; number three: whether it has been regarded in our history and traditions as punishment; number four: whether it has a rational or alternative non-punitive purpose. Lastly, whether or not it is excessive with respect to that purpose. Can we go through? Certainly. So what did they decide on number one: whether the statute promotes the traditional aims of punishment, which would be retribution and deterrence? [28:09] Larry: They said, although failure to comply with SORA imposes a criminal penalty, such punishment is not for behavior that occurred before the statute’s enactment. Listen carefully, folks. Compliance is not retribution for a crime that resulted in a person being subject to SORA. Instead, it punishes the action of failing to comply once the person is subject to registration requirements. Therefore, an increase in the duration, the additional period of registration, is not retributive because registration is not punishment at all. You make the analogy: if we learn that a restaurant needs to have higher temperatures to keep food safe and they change the law, you’re not trying to punish the restaurant. You’re telling them, “Hey, the regulatory framework has changed. We’ve got new information. We’ve changed what we do. You’ve got to upgrade your system or we’re going to shut you down.” It’s not punitive at all. And that wouldn’t be retroactive, right? [29:09] Andy: You’ve got to do it now. Right. But I’m saying, you didn’t have your temperatures high enough yesterday. We changed the law today. Since you didn’t have it high enough yesterday, you’re being fined? You don’t get fined for yesterday. [29:21] Larry: You’ve got to bring your restaurant up to compliance. And that’s what you’ve got to do. You’ve got to bring your vessel up to compliance. You had to go in for 10 years. Now you have to go in for 25. [29:30] Andy: All right. And then what about your favorite number, which is number two, and whether it imposes an affirmative disability and restraint? I really liked that one a lot, Larry. I think that’s really awesome. [29:40] Larry: It doesn’t say very much differently. It states that 29, four zero zero five imposes no affirmative disability or restraint because it does not prohibit a person from doing anything they would otherwise be able to do. In other words, you can work anywhere you want, and people will hire you. You can live wherever you choose, and landlords will rent to you. You can go anywhere at any time of day or night. You can smoke all the dope you want. Now, if you break another law, that’s a different matter, but you’re not breaking the PFR law. There is no curfew, no need to account to a probation officer, and you are not under direct supervision. You just have to report in periodically. So they say there’s no disability or restraint. This can be a disadvantage when litigating in states that don’t offer the same protections as Mississippi, where you must pay a $500 fee every so often to notify your neighbors, and you are restricted from working, living, building property, and attending schools. In Nebraska, however, you can do all those things. [30:34] Andy: And so then, moving on to the third factor, whether it has been regarded in our history and traditions as punishment. [30:41] Larry: They said they find that SORA and the sex offender registration requirements have not historically been regarded as punishment. So this didn’t do much better. [30:50] Andy: Wait, if we always treat these people like crap, then historically, does that mean it’s not punishment since we don’t consider it punishment that they can’t live in all these places? Therefore, it’s normal. Therefore, it’s not punitive. [31:04] Larry: No, that’s not what they’re saying. They’re saying that to look at something as punishment, we would have to look at what types of things have been historically regarded as punishment. Requiring someone to register has never been considered punishment in the past in our history. So if you’re an originalist, which all of our audience claims to be, there’s no historical precedent for you to say that having to fill out a form and go see somebody periodically is punishment. That’s what they’re saying. [31:29] Andy: I got it. Moving on to the fourth factor, whether it has a rational alternative non-punitive purpose. I’m really trying hard to understand those words in that order to figure out what this may mean. So what does it mean? What did the court say? [31:43] Larry: Well, the court held it is not excessive in relation to that purpose as registration in and of itself is not excessive for the purpose of protecting the public and enhancing future law enforcement efforts. Simply increasing the time for such registration cannot be considered to exceed that purpose. There is some logic in them saying that. If it works, wouldn’t it work well if we did it for a longer period of time? [32:09] Andy: Yes, and more intensely at that. And then the increase in requirements passed in 2009. Has the Nebraska Supreme Court ruled on this one? [32:22] Larry: No, they have not. There was a challenge filed immediately after the enactment of LB 205. They filed it in federal court and lost. They did a good job. So I’m not knocking the people involved. I mean, They were the only state I’ve ever seen raise as much money as they did that quickly. And they went and found a competent attorney and filed it in federal court. But the Nebraska Supreme Court has not addressed whether changing the registration requirements from 10 to 25 years under 29-4005 is an ex post facto violation. However, the court has considered similar issues, for instance, in State v. Worm, which was a 2004 case. The defendant was required to register for 10 years at the time of his offense. But based on subsequent amendments, the registration increased from 10 years to lifetime. The court determined in Worm that the registration provisions were not punitive in either purpose or effect and therefore were not an ex post facto violation. [33:20] Andy: Now, is there hope that this case can be overturned by the Nebraska Supreme Court? [33:31] Larry: Not very likely, I don’t think. And I can expand a little bit more. The case they launched was a good one. They got a federal judge named Judge Kopf who was very thoughtful. He didn’t want to strike down SORNA entirely. But he struck several things that were blatantly unconstitutional, such as monitoring convictions and using computers. He issued an injunction right away and stopped the state from implementing those parts of the bill. However, he allowed the registration framework to remain in place. There was another case pending simultaneously in Sarpy County, a suburb of Omaha. The federal judge there deferred to Judge Kopf’s ruling. Judge Kopf wrote a thorough 73-page decision that we have in our Dropbox folder if anyone wants to read it. I’ve read it several times over the years and found it very thoughtful. [35:04] Andy: Well, very well. So not likely to be overturned in our favor is what you’re saying. [35:11] Larry: Well, I would like to think that if the Nebraska Constitution has a greater protection than the U.S. Constitution, I would go back into state court if it were me. And I would try to build a case from scratch with a strong evidentiary record. This one may not have the evidentiary record below that shows the punitive nature. It sounds like it was only briefed and there was a hearing, but don’t know how long the hearing was. You need expert witnesses. You need to be able to prove that this is punishing people and how. Opining isn’t enough. Remember, you need the clearest of proof. And you need to build that evidentiary record. If you don’t do that, you’re going to keep losing. [35:54] Andy: That one, I don’t know. Which one? [35:57] Larry: Bacon Kelly. [35:58] Andy: Oh, I don’t have that one handy. I’ve tried to track it down, Richard, and I can’t find it. [36:04] Guest 1: Are you a first-time listener of Registry Matters? Well, then make us part of your daily routine and subscribe today. Just search for Registry Matters through your favorite podcast app. Hit the subscribe button and you’re off to the races. You can now enjoy hours of sarcasm and snark from Andy and Larry on a weekly basis. Oh, and there’s some excellent information I’ve thrown in there, too. Subscribing also encourages others to get on the bandwagon and become regular Registry Matters listeners. So what are you waiting for? Subscribe to Registry Matters right now. Help us keep fighting and continue to say F-Y-P. [36:53] Andy: All right. Well, then let’s cover this. This one’s going to be pretty quick. This is from your people’s legislature. This is a legislative session that just ended. Can we talk about how things went? Sure, we can talk about it. Now, listen, you shared with me the online streaming link. So I followed every legislative update. So I’m ready. Are you ready? I don’t think you’re ready. You’re not ready. Are you ready? I hope so. House Bill No. 69 sought to modify the statute of limitations for civil actions related to sexual abuse. It proposed to amend Section 37-1-30, N-M-S-A. What does that say? I got New Mexico. What’s the essay? Statute annotated. Okay. So New Mexico statute annotated to allow alleged victims until they have reached 58 years of age. Well, you’re way older than that. You got nothing to worry about. To resuscitate an already expired statute of limitations for civil actions due to childhood sexual abuse. Did it pass? [38:02] Larry: Now it’s the victim that’s being extended to 58, not the perpetrator. Oh, crap. So if they were diddled at 14, that’s a long time before you reach 58. [38:17] Larry: If they were abused at [38:18] Andy: If they were abused at 14, well, theoretically, the person doing it is probably going to be 10 years or more older. And if they’re 58 now, then they’d be pushing 70 by the time of prosecution. I don’t want to put people in prison at age 70 because that’s going to lead to a lot of medical expenses. It just doesn’t sound right. [38:37] Larry: Please continue, sir. No, it died because it was not germane to this year’s session. It needed a message from the governor, which it did not have. I don’t know why it didn’t get a message, but it didn’t move forward this year. It will come back next year, and we’ll have to deal with it. But this year, we didn’t have to do a whole lot of work on it. [38:54] Andy: And then House Bill 74 would have eliminated the 10-year statute of limitations for prior felonies. Did that one pass? [39:03] Larry: No. The bill was heard by the House Consumer and Public Affairs Committee on February 3rd. It did not receive the necessary votes to advance, so we were able to extinguish that one in its tracks. But it’ll come back. [39:19] Andy: And then House Bill 79 sought to make it easier for the state to revoke a person’s probation. The language proposed in House Bill 79 would reduce the burden of proof to a preponderance of the evidence. Did that one pass? [39:35] Larry: No, it died. It did pass the first committee. We objected because the legal standard of preponderance of evidence is inadequate and not appropriate in criminal proceedings. And I want to give kudos to the Republicans on the committee who served. They’re at a minority, but they voted no. So I’ll have to try to dig into it and find out if it wasn’t strong. But they did vote no, and the Dees voted yes. So right now, the Republicans get kudos for voting no. [40:06] Andy: And then House Bill 199 sought to bring New Mexico into substantial compliance with the federal Adam Walsh Act. Did that one pass? [40:17] Larry: No, it did not. It passed the House Consumer and Public Affairs Committee with only one no vote, which was from the chair. The proposal is not perfect, but we could have grudgingly lived with it as it was. However, it died in the House Judiciary Committee because someone was working against it—I wasn’t opposing it myself. I was going to try to tweak a few things if it kept moving, but it died in House Judiciary, so we didn’t get that one passed. So there’s no change in our PFR Registration Act. [40:52] Andy: All right. And then Senate Bill 32 sought to revise the time limitation for commencing prosecution of human trafficking, increase the age applicable to victims of sexual exploitation of children by prostitution to 18, amend the elements of human trafficking, provide a definition of harm, prohibit certain defenses in a prosecution for certain crimes, add victims of human trafficking and sexual exploitation of children to the Victims of Crime Act, and prohibit earned meritorious deductions for a human trafficking sentence. Did that one pass? [41:31] Larry: No, and this was really bad. When you eliminate meritorious deductions—remember, we don’t have parole, but we do give 15 percent or 50 percent of meritorious deductions depending on the crime. Blocking out prohibitions against these deductions means people serve their full sentences, which increases incarceration costs and prison populations. So that was a problem with it. Anytime you let the legislature prohibit certain defenses is really problematic. You say this shall not be a defense; I don’t like that. But no, it didn’t pass. It passed the Senate Health and Public Affairs Committee but died in the Senate Judiciary Committee. [42:21] Andy: And then I think this is the last one. This was Senate Bill 41, which sought to eliminate statute of limitations for certain PFR-type crimes. Did that one pass? [42:33] Larry: It did pass on the final day of the session, and I was disappointed in that. We had so many opportunities—I even tried to engineer rolling the PFR bill into it because if we were going to get something bad, I wanted to get something good out of it. And I thought I had a commitment to roll the PFR bill into it, but that fell apart. So I haven’t had enough time to analyze the various amendments. But here’s what I’ll tell you: I won’t sugarcoat it. The liberals pushed this through because of their fixation on Jeffrey Epstein. I’m confident there will be people convicted of crimes they did not commit because one cannot receive a fair trial when facing decades-old charges. So—but as far as the nuances of the amendments, there were so many put on in the House and removed by the Senate, then added back. Four amendments total, so I haven’t had a chance to totally dissect what they were. But this was something driven by the liberal side of the aisle. Let’s be fair: it wasn’t their agenda; they didn’t have enough votes. This was our side pushing this. [43:44] Andy: And you’re not happy about this one, right? [43:47] Larry: I’m not happy at all because we get a lot of lip service about fairness, and they’ve totally forgotten about fairness. I’ve watched the testimony as much as I could. The agency representatives from the AG’s office and various law enforcement agencies testified that this doesn’t change the burden of proof. And they’re technically correct—it doesn’t. But what it does is bring a person in for charges 40 years later, when many things have changed, including people who might be able to help your case are no longer alive. If someone could contradict an alleged victim’s statement and that person has passed away, you can’t call them as a witness. [44:47] Andy: I’m pretty sure we don’t have seance-level interactions with dead people in court. [44:53] Larry: And also, we don’t know what evidence has been destroyed that might have been. I mean, there’s not a limitless supply of places to keep evidence. So we don’t know what’s been lost. We don’t know what’s spoiled. And one of the most important things is that we don’t know about human memory. What we do know is that memories change over time when people are recollecting something from decades ago, especially if they’ve had encouragement to do so. So you can’t get a fair trial. I said precisely the same thing when Judge Roy Moore in Alabama was being hit with accusations from his work as a supervisor at the Old Hickory House restaurant. The Old Hickory House has been closed for decades. People have vanished or died, and it doesn’t matter what party they’re in. You can’t get a fair trial. And the liberals don’t seem to care about that anymore. [45:59] Andy: All right. So if you’re 100 years old and they want to bring up something from 50 years ago, you’ve got to figure out how to defend yourself. You’ve got to hire an attorney. You’ve got to figure out how to defend yourself against something that’s that old. [46:15] Larry: I feel bad because people are going to be charged. And even if they’re exonerated, they’re going to spend a lot of money dealing with this stuff from decades ago. [46:30] Andy: Is there anything else before we get out of here? [46:33] Larry: Well, I did receive a request, and I don’t know that I can say no. Chance, our former co-host who hasn’t joined us for a while, texted me today. He said he did a podcast on Timothy Busfield, the charges that he’s facing in New Mexico. And he said if people want to know the down and dirty, they can find it on his podcast. So since I’m not planning on covering Busfield, if you want to find out more, you can go to our colleague’s podcast and see what he had to say. I don’t know if we can provide any linkage to that or not. Because he did just release an episode. [47:14] Andy: I will do it. I’m looking it up right now to come up with a link. I forgot about that. It’s almost like the sex offender trials podcast or something. Yes, well, he’s [47:26] Larry: Getting good traction. I’ll send it to you. But yeah, he’s getting good traction. He’s had 500 views on this, and it’s only been out for about a month. And that’s a pretty good amount of views. So people are interested. [47:37] Andy: And we did have one new patron join us. There were two accounts, but I think they accidentally used the wrong name. One got canceled, so it was actually just Josh joining as a new patron. Thank you very much, Josh, for coming on board and becoming a patron. Really appreciate it. So head over to RegistryMatters.co for show notes, et cetera. You can also visit FYP Education where free resources are available, including the new search tool that was created. You can send us an email at RegistryMattersCast@gmail.com. You can leave voicemail messages as well, which I always forward over to Larry. And that’s 747-227-4477. Lastly, to support us, it is so very much appreciated. It means a lot at Patreon.com/RegistryMatters where you can become a patron and gain all the perks that go along with that. [48:34] Larry: Nope. We had a good episode. We finished in less than three hours. [48:37] Andy: We did. We did. We did. Well, have a great night. Have a good rest of the weekend. And if you’re listening live, as the dozens and dozens and dozens of people are doing, I really appreciate you guys hanging out. And we’ll talk to you all soon. Have a great night, Larry. Good night. Good night. [48:56] Andy: Wrong button. Yes. Okay. Seven in the morning, huh? Bye.
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