Federal Judges Disagree on Sex Offender Registry

By Beacon Staff

BILLINGS – Two district judges in Montana have reached opposite conclusions about the constitutionality of a federal law that requires sex offenders to register with local authorities when they move to another state.

District Judge Richard Cebull in Billings ruled Friday that the Adam Walsh Act and the included Sex Offender Registration and Notification Act (SORNA) are constitutional. But District Judge Donald Molloy in Missoula ruled in June that the act didn’t pass constitutional muster.

The contradictory rulings mean the U.S. 9th Circuit Court will have to resolve the matter.

Montana U.S. Attorney Bill Mercer said that, in the meantime, his office would continue to prosecute sex offenders who fail to register in the Montana divisions where the act has been ruled constitutional, including Billings and Great Falls. No new cases will be brought in Molloy’s division in western Montana, Mercer said.

Molloy’s opinion came in a case against 58-year-old Bernard L. Waybright, who had been convicted of a misdemeanor sex offense in West Virginia. He didn’t register as a sex offender when he traveled to Montana and was indicted for violating SORNA.

After determining that Congress exceeded its authority under the Interstate Commerce Clause of the U.S. Constitution, Molloy dismissed the charges against Waybright. That case has been appealed to the 9th Circuit.

Cebull refused to dismiss similar charges against Jesse Lee Vardaro, who was convicted in Texas nearly 20 years ago of indecency with a child younger than 17. He violated conditions of his 10-year probation in 1998 and was sentenced to state custody.

Vardaro registered with local officials when he moved to Michigan in 2004. But when he recently began work in Glendive, he didn’t notify Montana authorities.

Vardaro was charged by federal indictment with failure to register as a sex offender. He had asked Cebull to dismiss the indictment, saying Congress exceeded its powers under the Commerce Clause and a conviction would violate due process of law because he wasn’t notified that he was required to register. He also argued that SORNA violates states’ rights by compelling them to accept federal sex offender registrations before any states have decided to implement the requirements.

Cebull’s ruling against Vardaro said “the threat posed by sex offenders traveling in interstate commerce is precisely the type of peril that Congress may address utilizing the Commerce Clause.”

Every state had registration laws before the Adam Walsh Act, which sought to standardize the system and make information available across state lines.