Many people have been confused by the Gundy decision released by the Supreme Court of the United States today, so I wanted to circulate a simplified summary of what Gundy is all about and what it means for people on the registry and, specifically, what it means for people on the registry in Florida.

Gundy was a “sex offender” case because Herman Gundy was a person required to register as a sex offender, but it’s not so much about the registry as it is about something technical called the “non-delegation doctrine”.

So, here’s the background… Herman Gundy committed a sexual offense in 2004.The Sex Offender Registration and Notification Act (SORNA) came out in 2006 and established federal requirements for registration, such as which offenses fall into which tier and which tiers have to register for how long.

At the time Congress passed SORNA, instead of announcing that SORNA applies to everyone, they left it up to the Attorney General to decide if, when, or how people convicted of sex offenses prior to the enactment of SORNA would be subjected to it. The Attorney General (not Congress) decided it would apply retroactively.

Gundy didn’t register and was arrested for violating SORNA. He argued that he shouldn’t be subjected to SORNA because Congress didn’t have the authority to delegate the decision as to whether SORNA applies to pre-SORNA offenders. In more technical terms; that would be an unconstitutional delegation of Congressional authority to the executive branch.

Gundy’s argument was that the “delegation” violates the “Non-Delegation Doctrine”, which says that one branch of government can’t authorize another to exercise the power or function which it is constitutionally authorized to exercise itself. In other words; it’s kind of like allowing the fox to watch the hen house. How can you allow the person that enforces the laws be the same person that decides whether the laws are applicable? (Note: a point that some of the Justices seemed to get during oral arguments) It’s why we have separation of powers.

So the issue that the Supreme Court took up was the application of the “non-delegation doctrine”, not so much the validity of sex offender laws.

Still, had Gundy won, the decision would have meant that the Attorney General didn’t have the discretion to determine that SORNA applied to pre-2006 registrants and pre-2006 people who were arrested for violating SORNA (such as Gundy) would have gotten relief. It would have benefited those with pre-2006 cases who were charged with violating SORNA (not Florida registration laws – that’s something different).

Looking forward, if Gundy had won, Congress could have just turned around and said ‘we’ll take the discretion away from the Attorney General and decide ourselves whether SORNA applies retroactively and we decide that it does’. Or they could have decided it didn’t. Regardless, I guess we won’t know.

While we all hoped that since Gundy was the first case in a while with a “registered party”, that the Supreme Court would take the opportunity to speak up and correct some grievous wrongs done to persons required to register. They didn’t – but it wasn’t so much about the registry as it was about the non-delegation doctrine.

So more specifically; what does this mean for persons required to register in Florida? Really nothing. While SORNA has three tiers and provides for removal after 15 or 25 years (for Tiers 1 and 2), Florida has no tier system and lifetime registration for all. Even if the SORNA minimums were not determined to be applicable to pre-2006 persons, the Florida requirements exceed SORNA by miles. Had Florida’s requirements been less onerous than SORNA we potentially could have seen some relief, but in our case we had none coming regardless of the outcome of Gundy.

And what does this mean for our current lawsuits in Florida? Nothing good or bad. We fight on!

 

 

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