Ruling allows Nevada sex offender registration requirement changes to take effect

A Clark County judge Thursday denied an emergency motion to postpone the enforcement of a Nevada law implementing new sex offender registration requirements.

The denied motion means that thousands of sex offenders previously classified as low-risk, or Tier 1 offenders, will be reclassified as Tier 3 offenders and will have their names, photos and addresses published on a government website starting Friday.

Low-risk offenders also will be subject to public notification.

While an emergency writ was filed with the Nevada Supreme Court late Thursday in a last-gasp effort to block the law from being imposed, the court had taken no action by mid-evening.

That filing argued that the Department of Public Safety is ill-prepared to implement the law and has been unable to rectify errors regarding who is subject to the new registration and public notification rules.

With the new law, Assembly Bill 579, the number of Tier 3 offenders will jump from 300 to 3,000, Julie Butler of the Department of Public Safety told the Interim Finance Committee after the judge’s ruling.

Under the law, Tier 3 offenders will have to report in person to law enforcement every 90 days and submit new fingerprints and palm prints. The new law will also include juvenile offenders, who previously were not required to report, Butler said.

Under Nevada’s previous law, people convicted of sex crimes were assessed on their risk of reoffending. Thousands of offenders who were deemed low risk, or Tier 1, were not subject to community notification.

The new law was approved by the 2007 Legislature and applies to offenses dating to 1956. Under the new law, tier levels are based on the offense committed, regardless of circumstances. Many offenders previously deemed by a judge to be no threat to the community will have their names, photos and addresses available for public scrutiny.

Maggie McLetchie, who represents 17 unnamed plaintiffs with attorney Alina Shell, said the Nevada attorney general’s office has refused to clarify how the law will be fairly applied. She argued before the court Thursday that the statewide confusion about the law’s enforcement would do irreparable harm to the plaintiffs and their families.

Judge Douglas Smith denied the motion, which was filed Monday, arguing that the attorneys had ample time to file a motion to stay the legislation and had created the “emergency” for themselves by filing Tuesday.

“I know that you’re unhappy about that, but ministerially I think we can take people off that need to be taken off the Tier 3,” Smith said, addressing McLetchie. “Quite frankly, I think it was the lawyer that created the emergency situation and it isn’t necessarily an emergency.”

McLetchie said after the hearing that the judge “is completely wrong that it’s a ministerial matter to take someone off the registry.” Once the website has gone live with the offenders’ photos and names, the harm will already be done, she said.

“We understand that we filed this late, but we’ve been doing everything we can to get information from the state about what their plans are for implementation,” McLetchie said. “Even as of yesterday I was unable to get from the attorney general’s office any actual clarity about how they’re going to treat people who already have orders.”

Thousands of Nevadans will be affected by the new application of the law, she said, many with pending petitions and court orders requiring that they be removed from the sex offender registration. She is concerned that because those court orders haven’t been processed yet, the offenders’ names and faces will appear on the state’s website, causing “very grave harm” to people who should not actually be subjected to the law.

“Just because, by happenstance, the judges that they’re in front of didn’t make time to hear their cases earlier, doesn’t make them any more dangerous tomorrow than they are today,” McLetchie said, “and it certainly doesn’t make them any more dangerous than any of the people who have already been released from registration.”

She and Shell went to work on the motion as soon as their clients came forward with letters they received beginning June 1 notifying them of the change in sex offender registration enforcement.

“I don’t think my clients should suffer because of any delay on my part,” McLetchie said. “There has been no attempt to improperly delay or cause an emergency. We’ve literally been working on this day and night.”

A lawyer for the attorney general’s office, David Keene, argued the plaintiffs had ample time to file their motion. He objected to a “factual witness” called by the plaintiffs, arguing the man who was convicted of distributing child pornography in 2010 was giving speculative testimony about the harm the new implementation of the law might cause his family.

Keene declined to comment after the hearing.

“After years of litigation, both the Ninth Circuit Court of Appeals and highest court of the state of Nevada have found that the Adam Walsh Act is constitutional, and the Division of Public Safety will implement the Act pursuant to legislation that passed in 2007,” the attorney general’s office wrote in a statement.

Smith said he wanted the state to have an opportunity to respond. The attorney general’s office must file its response by July 8, and the next hearing is set for July 12.

Hours after the judge’s ruling, a legislative money committee approved $545,000 to hire new staff for the state’s Criminal History Repository to handle the increased workload of processing fingerprints maintained by the repository.

“That additional workload … will create a staggering amount of work for the repository,” Butler told the Interim Finance Committee.

Annual sex offender verification procedures took about 3,300 hours of staff time to complete. The more frequent verifications now required will add 8,600 staff hours.

“We can’t do it with the staff we have today,” Butler said.

Review-Journal writer Sandra Chereb contributed to this report. Contact Kimber Laux at klaux@reviewjournal.com or 702-383-0283. Find @lauxkimber on Twitter.