Sunday, March 17, 2013

Third Circuit: AG did not have 'good cause' to waive APA on Walsh Act

In 2001, Billy Joe Reynolds was convicted of a sex offense in Missouri. After he was released from prison, Reynolds registered as a sex offender in Missouri. However, in 2007 he moved to Pennsylvania and failed to register.

Reynolds was indicted and pleaded guilty to a registration violation pursuant to the Adam Walsh Act. He immediately appealed the conviction, challenging the constitutionality of the Walsh Act, suggesting that the attorney general did not follow the Administrative Procedures Act (APA) when establishing an interim rule making the law retroactive.

The Third Circuit upheld the conviction. The court determined that Reynolds did not have standing to challenge the attorney general’s interim rule, finding the Walsh Act itself required Reynolds to update his information, not the subsequent interim rule issued by the attorney general.

The U.S Supreme Court disagreed with the Third Circuit and sent Reynolds’ case back to the appeals court. Reynolds does indeed have standing and the appeals court has been ordered to get to the merits of his claim.

"The question before us is whether the act requires pre-act offenders to register before the attorney general validly specifies that the act's registration provisions apply to them," Justice Stephen Breyer wrote for the court. "We believe that it does not."

Last week, the Third Circuit overturned Reynolds' conviction. The Court found that the Attorney General did not have good cause to waive the notice and comment provisions of APA before rendering a rule that said the act was retroactive.

There is difference of opinion among the various circuits on whether the interim rule was properly implemented. Ultimately that may result in this issue returning to the U.S. Supreme Court.

The decision will only affect those offenders who were convicted for not complying with registration while interim rule was in effect. It is unclear how may sex offenders in Pennsylvania and around the country are affected by the various circuit court rulings.

To read the Opinion:

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