Chief Deputy Public Defender

PHILIP J. KOHN

PUBLIC DEFENDER

Nevada Bar No. 0556

Susan D. Roske

Chief Deputy Public Defender

Nevada Bar No. 1584

Jessica W. Murphy

Deputy Public Defender

Nevada Bar No. 8587

Juvenile Division

601 North Pecos Road, #49

Las Vegas, NV 89101

(702) 455-5475

DISTRICT COURT

FAMILY DIVISION

CLARK COUNTY, NEVADA

IN THE MATTER OF, )

)

)CASE NO. J304169

)

)DEPT. NO. A

)

N. R., / ) Date: February 15, 2008
) Time: 9:00 AM
Date of Birth: 12/12/1988 / )

______)

SUBJECT MINOR’S MOTION FOR A FINDING BY THE COURT THAT THE LEGISLATIVE ENACTMENT A. B. 579 IS UNCONSTITUTIONAL AS APPLIED TO ADJUDICATIONS OF DELINQUENCY

COMES NOW the subject minor, N. R., by and through his undersigned counsel, Jessica W. Murphy and Susan D. Roske, Deputy Public Defenders and and moves this Honorable Court to declare the application of A. B. 579 is unconstitutional as it applies to an adjudication of delinquency.

This Motion is based upon the attached Memorandum of Points and Authorities, any additional Points and Authorities submitted to the Court, the papers and pleadings on file in the instant case and upon such oral argument and evidence as the Court allows at the time set for hearing this Motion.

Dated this 28th day of December, 2007.

PHILIP J. KOHNPHILIP J. KOHN

PUBLIC DEFENDER PUBLIC DEFENDER

By: ______By: ______

Jessica W. Murphy, Susan D. Roske,

State Bar No. 8587 State Bar No. 1584

Deputy Public Defender Chief Deputy Public Defender

NOTICE OF HEARING

TO: STATE OF NEVADA, ATTORNEY GENERAL

TO: CLARK COUNTY DISTRICT ATTORNEY, JUVENILE DIVISION

Please take notice that the above captioned motion will be heard before the Juvenile Judge on the 15thday of February 15, 2008, 2007 at the hour of 9:00 A.M. or as soon as may be heard Department A, Courtroom 18 of the Eighth Judicial District Court, Family Division.

______

Susan D. Roske

Chief Deputy Public Defender

MEMORANDUM OF POINTS AND AUTHORITIES

STATEMENT OF THE CASE

On January 1, 2007 the Clark County District Attorney’s Office filed a delinquency petition against N.R., charging him with one count of sexual assault – victim under 14, eight counts of open orgross lewdness, and eight counts of lewdness with a minor under 14 years of age. The dates of the charged offenses ranged from March 2004 to December 2006. N.R.’s age range for the offenses was 15 years of age to 17 years of age. The victim was his cousin, who is approximately three and one-half years younger than Nicholas.

Pursuant to negotiations with the District Attorney’s Office, N.R. admitted to one count of lewdness with a minor, to wit: “…by placing his mouth on the victim’s mouth and inserting his tongue into the victim’s mouth…”. A Sex Offense Specific Evaluation was filed with the court on March 6, 2007. The evaluation indicates that the subject minor was evaluated to be a low risk to re-offend. (Exhibit E). On April 24, 2007 N.R. was sentenced to the Division of Child and Family Services for correctional placement, where he remains today.

STATEMENT OF FACTS

Although charges were not filed until N.R. was 18 years old, the alleged behavior allegedly began when he was 15 years old. N.R. has an extensive mental health history, and has witnessed such tragic events as discovering his mother’s body after she committed suicide when he was just 12 years of age. From age two until age ten, N.R. lived with his mother and step-father in Mississippi. N.R. was led to believe that his step-father was his biological father, and only learned that he was, in fact, only a former step-father when N.R. was 15 years old.

N.R.’s mother and his step-father divorced when N.R. was 11 years old. N.R. spent the majority of the time with his mother, but did spend time with his step-father who N.R. still believed to be his father. After his mother’s death by suicide, N.R. lived with his step-father and his younger half-brother from the age of 13 through 15. In August 2003, at age 14, N.R. underwent a psychiatric evaluation at the request of his parents. N.R.’s DSM-IV diagnosis included an Axis I of Bipolar Affective Disorder, NOS and Oppositional Defiant Disorder; his Axis IV included the diagnosis of Great Psychosocial Stressors. Numerous reports indicate that N.R. was physically and emotionally abused by his step-father while in his care.

At age 15, N.R. learned that Mr. Ross was not his natural father, but was instead his mother’s former husband. Also at age 15 N.R. was sent away from Mr. Ross and his brother to live in Las Vegas with his maternal aunt and her family. N.R. has not had any contact with his step-father but attempts to maintain contact with his brother.

In April 2004 N.R. was referred by his aunt and his psychologist for a Multidisciplinary Evaluation by the Clark County School District. The reason for the referral was that N.R. had experienced significant social-emotional abuse by his step-father for an extended period of time and it is unclear as to how it affected his educational progress. N.R. was found to be not eligible for special education as he did not demonstrate an educational disability.

This incident occurred sometime between March and May 2004 when Nicholas was spending the night at his cousin’s home. According to police reports Nicholas would kiss his cousin while the two were lying in bed watching television.

In June 2004 in Las Vegas, N.R.’s aunt requested he undergo a second psychiatric evaluation. N.R.’s diagnoses included Hyperactivity- clinically significant; Aggression- clinically significant; Attention problems- at-risk; Social skills- at-risk; Bipolar Disorder; and Posttraumatic Stress Disorder. In December 2005, N.R. was committed to Copper Hills, a residential treatment center in Utah, by his aunt and uncle. N.R. spent approximately six weeks at Copper Hills and returned to his aunt’s house upon discharge in January 2006.

At some point N.R.’s aunt sent him to his grandparent’s home in Las Vegas because his behavior in her home was unmanageable. While living with his grandparents, Nick maintained employment at Pizza Hut, Starbucks, and Walgreens. N.R. was employed full-time at Walgreens at the time of his DCFS commitment. N.R. remained with his grandparents until his arrest for the instant offenses on January 18, 2007. N.R. remained detained for approximately one week, and was released on Electric Monitoring back to his grandparents. N.R. remained out of custody until his commitment to DCFS on April 24, 2007. As part of the Report and Disposition N.R. underwent a Sex Offense Specific Evaluation, and the evaluating therapist concluded that N.R. was a low risk to re-offend. (See, Exhibit E). The Court ordered N.R. to submit to a psychiatric evaluation to determine if he was a sociopath and if he presents a risk to the community. The evaluators concluded that N.R. does not fulfill the criteria for psychopathy or sociopathy. The evaluators recommended that N.R. receive intensive outpatient psychotherapy on a regular basis and to continue his care with his psychiatrist for medication management.

On April 24, 2007 N.R. was sentenced to the Division of Child and Family Services for correctional placement. He is currently housed at the Nevada Youth Training Center in Elko, Nevada.

ARGUMENT

INTRODUCTION

This motion is filed in conjunction with 20 similar cases of juveniles impacted by this legislation. This group represents a small portion of individuals who are similarly situated and in need of relief. Because the issues are similar and related, the following cases are being simultaneously filed and raise common issues:

J88076; J297294; J299548; J89247; J76110; J299770; J302182; J297311; J296081; J302158 J303903; J91926; J80382-2; J302446; J297246; J304169; J306339; J294797; J48774; J295148; J297277.

This Court has jurisdiction to reach a determination in these matters. Each case involves an adjudication of delinquency for a sex offense arising from this court. NRS 62A.030 defines a “child” as a person who is less than 18 years of age; a person who is less than 21 years of age and subject to the jurisdiction of the juvenile court; or a person who is otherwise subject to the jurisdiction of the juvenile court as a juvenile sex offender. Further, NRS 62F.220(2) provides that the juvenile court may not terminate its jurisdiction concerning the child for the purposes of carrying out the juvenile sex offender provisions in NRS 62F until the child is no longer subject to registration and community notification as a juvenile sex offender A. B. 579, section 47(2).

The Nevada Supreme Court reviewed the constitutionality of a juvenile sex offender statute in the case styledIn reT. R., 119 Nev. 646, 80 P.3d 1276 (2003). T.R. objected to a disposition order requiring him to submit to a hearing when he turns 21 (he was 14 at the time) to determine whether he must register as an adult sex offender.The Nevada Supreme Court noted that “T.R. seeks pre-enforcement review of NRS 62.590; thus, ripeness, rather than standing, is our focus.” Reviewing the test for ripeness, the Court in T.R. cited Smith v. Wisconsin, 23 F.3d 1134 (7th Cir. 1994). In Smith v. Wisconsin the Circuit Court of Appeals discussed the fact that the doctrines of standing and ripeness are closely related.

It is sometimes argued that standing is about who can sue while ripeness is about when they can sue, though it is of course true that if no injury has occurred, the plaintiff can be told either that she cannot sue, or that she cannot sue yet. See Gene R. Nichol, Jr., Ripeness and the Constitution,54 U. Chi. L. Rev. 153, 173 (1987) (noting that the Supreme Court "appears to have used the two lines inquiry interchangeably").

The Court in Smith v. Wisconsin, like the court in the instant matter, considered whether the party could seek pre-enforcement review of a statute or regulation.

For ripeness purposes this determination appears to turn on two criteria: (1) the hardship to the plaintiff of denying pre-enforcement review and (2) the fitness of the issues for judicial review. While the interaction of these relationships is unclear, "it appears that pre-enforcement review is possible only if there is both hardship to its denial and an adequate factual record." Chemerinsky, Federal Jurisdiction, § 2.4.

Id., at 1141.

The Court in T.R., supra, applying the above test,held:

Moreover, delay will harm T.R., as he is unsure how the statute applies to his current and future life choices; those choices could well influence the district court's decision in any hearing under NRS 62.590. Nothing is gained from deferring review until T.R. is twenty-one. As for the issues' suitability for review, therecord is sufficiently developed to allow us to consider the legal questions before us. Applying these factors, we conclude that this case is ripe for our review.

Id., at 651-652.

The Nevada Supreme Court, in In re T. R., supra, noted that the future application of the statute was certain and cited Chang v. United States, 327 F.3d 911(9th Cir. 2003), which recognized that an issue is ripe for review when it is inevitable that a regulation will be enforced against a plaintiff. In Chang, supra, the Ninth Circuit Court of Appeals stated,

This court "does not require Damocles's sword to fall before we recognize the realistic danger of sustaining a direct injury." Id. at 1171. In Freedom to Travel Campaign v. Newcomb, 82 F.3d 1431, 1436 (9th Cir. 1996), this court expressly adopted the "firm prediction" rule from Justice O'Connor's Catholic Social Services concurrence, which eliminates the need to await an inevitable application of a regulation to a plaintiff before determining a claim to be justiciable.

Id. at 921.

Here, the subject minor, as did T. R., seeks pre-enforcement review of the legislation. Here, as was the case in T.R.,supra, “nothing would be gained by deferring review” until the legislation is effective. On July 1, 2008, the subject minor will be subject to registration and community notification on the adult sex offender website. The subject minor will suffer irreparable harm and the court “does not require Damocles’s sword to fall” before providing the subject minor relief. Further, the issue is fit for judicial review. The legislation has been enacted and will take effect on July 1, 2008.

NEVADA’S LEGAL FRAMEWORK RELEVANT TO JUVENILE SEX OFFENDERS

Under current law, juveniles adjudicated delinquent for certain sex offenses[1] (juvenile sex offenders) are subject to community notification procedures and other restrictions. The linchpin of the current sex offender scheme is an individual assessment. Presently, sex offenders, including juvenile sex offenders, are individually assessed to determine their level of risk of recidivism and placed under the supervision of a parole or probation officer for not less than three years. NRS 62F.220. The risk of recidivism determines the extent of community notification.[2] Similarly, the juvenile court has the power to release a juvenile sex offender from community notification as a juvenile sex offender if the court determines that the juvenile sex offender is not likely to re-offend. NRS 62F.240. If the child is not relieved of community notification requirements before he or she reaches the age of 21, the juvenile court must hold a hearing to determine whether the child should be deemed an adult sex offender for the purposes of registration and community notification pursuant to NRS 179D.350 to NRS 179D. 800, inclusive. NRS 62F.250 (1). If the court determines that the child has been rehabilitated to the satisfaction of the juvenile court and that he or she is not likely to pose a threat to the safety of others, the court must relieve the juvenile sex offender of being subject to community notification. NRS 62F.250 (2). Conversely, if the court finds that he or she has not been rehabilitated to the satisfaction of the juvenile court or is likely to pose a threat to the safety of others, the juvenile court must deem the juvenile sex offender to be an adult sex offender for the purposes of registration and community notification. NRS 62F.250 (3).

This landscape is all about to change drastically. Governor Gibbons signed into law Assembly Bill 579, hereinafter “A. B. 579,” on June 13, 2007. A. B. 579 goes into effect on July 1, 2008. The legislation radically intensifies the consequences of an adjudication of delinquency for sex offenses. While as discussed at length below, the law is unclear; it appears that A. B. 579 mandates that anyone – since July of 1956 – who was or is adjudicated delinquent for the commission of sex offenses after their fourteenth birthday will be subject to lifetime supervision, registration, community notification and other restrictions as sex offenders (collectively, “sex offender restrictions”) based solely on the crimes committed rather than any actual assessed risk of recidivism of any individual juvenile sex offender. As detailed below, some juvenile sex offenders will be subject to sex offender restrictions for the rest of their lives starting in July, 2008.[3]

Sex offender restrictions are imposed on persons convicted of certain crimes; A. B. 579 defines “convicted” to include an adjudication of delinquency for a sexual offense that is listed in NRS 62F.200[4] if the offender was 14 years of age or older at the time of the offense. (See, A. B. 579, Sec. 33 and Sec. 46). Thus, children adjudicated delinquent for these enumerated sexual offenses will be subject to lifetime adult supervision, community notification and registration requirements.

Section 56 of A. B. 579 repeals the existing system of an individualized assessment system with a rigid categorical approach. All sex offenders are automatically placed into “Tier I,” “Tier II” or “Tier III” depending on the statute under which the individual is adjudicated or convicted. All offenders will be subject to widespread community notification. All juvenile offenders will automatically be either Tier II or Tier III offendersunder the new system. As explained above, if a juvenile is adjudicated delinquent of any of the crimes listed below, he or she will be, under the law, classified as a sex offender (See A. B. 579, Sec. 20(b)):

(a)Sexual assault pursuant to NRS 200.366;

(b)Battery with intent to commit sexual assault pursuant to NRS 200.400;

(c)Lewdness with a child pursuant to NRS 201.230; or

(d)An attempt or conspiracy to commit an offense listed in this section.

Each of these crimes is classified as a felony offense if committed by an adult. Section 23 of A.B. 579 provides that a “Tier II offender” means an offender convicted of a crime against a child or a sex offender, other than a Tier III offender, whose crime against a child is punishable by imprisonment for more than 1 year (i.e. a felony offense). Thus, all juvenile sex offenders will be at least Tier II offenders. Some juvenile sex offenders will become Tier III offenders and face even more extreme sex offender restrictions. Section 24 of A. B. 579 provides that individuals convicted of Sexual Assault pursuant to NRS 200.336, Battery with intent to commit Sexual Assault pursuant to subsection 4 of NRS 200.400 or an Attempt or Conspiracy to commit these offenses (among other offenses) will be Tier III offenders. Thus, two of the three offenses listed in NRS 62F.200 are Tier III offenses.

It is noteworthy that the inclusion of juvenile sex offenders in the definition of a “sex offender” is retroactive to July 1, 1956. Thus, the legislation will affect not only the children in the court system today, but also former offenders who have complied with the requirements of the law and have been determined to be rehabilitated. Many adults in this community, who have been rehabilitated and moved on to lead productive and successful lives, will suddenly be required under the law to be subject to lifetime supervision, community notification and registration.

The following are some of the sex offender restrictions that will apply to juvenile offenders beginning in July of 2008:

The name, social security number, date of birth and any other information identifying the child must be submitted to the Central Repository for Nevada Records of Criminal History; and a biological specimen must be obtained for genetic markers. A. B. 579, section 1.

In addition to other penalties, a special sentence of lifetime supervision must be imposed. A. B. 579, section 6. Lifetime supervision is deemed a form of parole with numerous conditions, a violation of which may be charged as a misdemeanor or felony, depending on the conduct. NRS 213.1243.

If granted probation, numerous restraints are set out which require a probation officer’s prior approval including, but not limited to, where the juvenile sex offender can reside, work, and go to school, and whether the juvenile sex offender can associate with children under 18, (even if the juvenile sex offender is under eighteen him or herself). A. B. 579, section 7.

He or she will not be eligible to seal a record of a sexual offense. A. B. 579, section 8.

The Central Repository will maintain a community notification website to provide the public with access to information contained in the statewide registry which will include the offender’s name, a complete description and current photograph, his or her home address, place of employment or school, the license plate and description of his or her motor vehicle, and more. A. B. 579 Section 13.