The government’s February 2010 cert. petition in United States v. Juvenile Male, 09-940, presents the question, “Whether application of the registration and notification provisions of the Sex Offender Registration and Notification Act (SORNA) to a juvenile who was adjudicated delinquent under the Federal Juvenile Delinquency Act before SORNA’s enactment violates the Ex Post Facto Clause of the Constitution.” (In September 2009, the Ninth Circuit, per Reinhardt, Tashima, and McKeown, held as a matter of first impression that it does. 581 F.3d 977 (9th Cir. 2009).)
In June 2010, the Court issued a short per curiam opinion taking the unusual step of certifying an issue to the Montana Supreme Court. It stated:
Before we can address that question [raised by the government’s cert petition], however, we must resolve a threshold issue of mootness. Before the Ninth Circuit, respondent challenged only the conditions of his juvenile supervision requiring him to register as a sex offender. But on May 2, 2008, respondent’s term of supervision expired, and thus he no longer is subject to those sex-offender-registration conditions. As such, this case likely is moot unless respondent can show that a decision invalidating the sex offender-registration conditions of his juvenile supervision would be sufficiently likely to redress “collateral consequences adequate to meet Article III’s injury-in-fact requirement.” Spencer v. Kemna, 523 U. S. 1, 14 (1998).
Perhaps the most likely potential “collateral consequenc[e]” that might be remedied by a judgment in respondent’s favor is the requirement that respondent remain registered as a sex offender under Montana law.(“By the time of the court of appeals’ decision, respondent had become registered as a sex offender in Montana, where he continues to be registered today.” Pet. for Cert. 29.) We thus must know whether a favorable decision in this case would make it sufficiently likely that respondent “could remove his name and identifying information from the Montana sex offender registry.” Ibid.
The Court therefore certified to the Montana Supreme Court the question whether the juvenile’s duty to remain registered as a sex offender under Montana law was contingent upon the validity of the conditions of his expired federal juvenile-supervision order that required him to register as a sex offender, or is an independent requirement of Montana law that is unaffected by the validity or invalidity of the federal juvenile-supervision conditions.
On May 17, the Montana Supreme Court answered that question by stating that “Respondent’s state law duty to remain registered as a sex offender is not contingent upon the validity of the conditions of his federal supervision order, but is an independent requirement of Montana law.” The Court discussed the matter at the June 16 Conference. The docket shows no entry for a supplemental brief from from the Solicitor General’s Office, but it is almost inconceivable to me that OSG wouldn’t have filed one. Based just on the reasoning of the certification order, this case may be moot; if the Court shares that conclusion, the Government’s petition might be headed for denial.
However, the Government might get the relief it seeks anyway, if the Supreme Court vacates the offending Ninth Circuit opinion under United States v. Munsingwear, Inc., 340 U.S. 36 (1950), because it was rendered moot before the government could obtain review. I believe it’s an open question whether Munsingwear applies in criminal cases—the Ninth Circuit held it did not on the particular facts of United States v. Tapia-Marquez, 361 F.3d 53 (9th Cir. 2004). By contrast, the en banc D.C. Circuit in United States v. Schaffer, 240 F.3d 35 (D.C. Cir. 2001) (per curiam), applied Munsingwear to vacate a conviction rendered moot during appeal by a Presidential pardon. But I’m not aware of any consensus on that issue.