Ruling: Tribal members do not have to register as sex offenders - Ahwatukee Foothills News: Community Focus

Ruling: Tribal members do not have to register as sex offenders

Print
Font Size:
Default font size
Larger font size

Posted: Sunday, September 29, 2013 9:45 am | Updated: 12:58 pm, Mon Sep 30, 2013.

In a unanimous decision, the judges said state law registration requirements cannot supersede what is required by federal law. And absent some very specific conditions, the state has no legal authority.

Judge Philip Espinosa, writing for the court, also said it is irrelevant that fact this person was found off the reservation.

Attorney General Tom Horne said he had not had a chance to review the ruling.

Court records show Raymond John was convicted in the late 1980s in federal of two counts of sexual assault on the reservation.

In 2010 he was arrested by Coconino County sheriff’s deputies outside the reservation and charged with failure to register as a sex offender as required by Arizona law. He pleaded guilty and was placed on probation.

John immediately asked the verdict be set aside, arguing the state had no authority. He said he was a member of the Navajo Nation living on tribal land and had not worked, resided or attended school outside reservation boundaries.

The trial judge refused, leading to the appeal.

Espinosa said that, under federal law, a sex offender must register. It also requires tribes to implement their own registration system or delegate that authority to other jurisdictions.

Federal law does say a tribe loses its authority if it does not come up with a suitable program. But Espinosa said the power is delegated to someone else only if the U.S. attorney general first determines the tribe has not complied and is likely incapable of doing so in a reasonable time.

That, he said, did not occur here. And that means Arizona cannot impose registration requirements on tribal members living on tribal lands.

The appellate judges also rejected arguments by prosecutors that the state acquired jurisdiction over John “the moment he stepped off the reservation.” They said John’s conviction is based entirely on his conduct within Navajo Nation territory, where he lives.

Beyond the issues related specific to the Navajo Nation, Espinosa said even if tribal members living on the reservation were required by federal law to register with the state, failing to do so would violate only federal law. That still leaves the state powerless to prosecute John in state court under state laws.

6.5 p�/ n,�� p� uires the Legislature to forever increase funding for schools by 2 percent or the change in the gross domestic price deflator, whichever is less.

Lawmakers did that until 2010, when, facing a budget deficit, they reinterpreted what the law requires. The result is that, since then, schools have lost anywhere from $189 million to $240 million, depending on whose figures are used.

Don Peters, representing several school districts, sued.

Legislators did add $82 million in inflation funding for the new fiscal year that began July 1 after the state Court of Appeals sided with challengers. But lawmakers took the case to the high court, arguing the mandate is legally unenforceable.

Assistant Attorney General Kathleen Sweeney argued there are limits on the rights of voters.

She said the 2000 measure sets the formula for increasing state aid and then tells the Legislature to find the money somewhere. Sweeney argued that infringes on the constitutional right of lawmakers to decide funding priorities.

But Pelander said Sweeney and the lawmakers she represented have it backwards.

“Our state constitution, unlike the federal constitution, does not grant power, but instead limits the exercise and scope of legislative authority,” he wrote.

On one hand, Pelander said, lawmakers could not cite any state or federal constitutional provision which restricts the ability of voters to enact their own laws. And legislators are not challenging what voters approved in 2000, acknowledging that they could have enacted both the tax hike and the inflation mandate themselves.

“It follows that the people also could constitutionally enact that statute,” Pelander said.

Pelander acknowledged that, generally speaking, one Legislature cannot bind future Legislatures. That principle frees lawmakers next year to repeal what was adopted by lawmakers two years ago.

But he pointed out that lawmakers chose not to enact the legislation themselves and instead punted, putting the question on the ballot.

“Having chosen to refer the measure to the people, who then passed it, the Legislature is subject to the restrictions of the Voter Protection Act which fundamentally altered the balance of power between the electorate and the Legislature,” Pelander wrote.

“It’s certainly a good day for the kids of our state and our voters,’’ said Tim Ogle, executive director of the Arizona School Boards Association, one of the groups who challenged the prior refusal of lawmakers to provide the funds.

But the victory is prospective only: nothing in Thursday’s ruling requires lawmakers to make up should have been added to the budgets of state schools in the time lawmakers suspended inflation funding.

Senate President Andy Biggs, R-Gilbert, said he is still studying the ruling to see what implications it has beyond the immediate question of state aid to schools.

House Speaker Andy Tobin, R-Paulden, said lawmakers probably were going to fund the inflation formula for future years, with or without a Supreme Court order. But Tobin, like Biggs, said he wants more time to analyze the court’s underlying reasons and the longer term implications.

Ogle acknowledged the high court ruling does tie the hands of lawmakers, limiting their ability to make decisions on spending priorities to first ensure funding for what voters have mandated.. But he said that’s irrelevant.

“They have a responsibility to the citizens that elected them,” Ogle said, citizens who have a constitutional right to adopt their own laws. “So they’ll just have to figure that part out.”

The court has not always sided with ballot proponents. The justices ruled last year that lawmakers can sidestep a requirement in a 2004 ballot measure that the state must provide care for everyone below the federal poverty level.

But that conclusion was based on language in the initiative which said the coverage would be funded by a tobacco tax, the state’s share of a nationwide settlement with tobacco companies, and other “available sources” of cash. And the courts said it is up to legislators to determine whether there are funds “available.’’

The programs cut from the Arizona Health Care Cost Containment System are set to be restored in January as part of the state’s decision to take advantage of — and get funds through — the federal Affordable Care Act. Under the plan pushed by Gov. Jan Brewer, those dollars will be coupled with what amounts to a tax on hospitals.

But that conclusion was based on language in the initiative which said the coverage would be funded by a tobacco tax, the state’s share of a nationwide settlement with tobacco companies, and other “available sources” of cash. And the courts said it is up to legislators to determine whether there are funds “available.’’

The programs cut from the Arizona Health Care Cost Containment System are set to be restored in January as part of the state’s decision to take advantage of — and get funds through — the federal Affordable Care Act. Under the plan pushed by Gov. Jan Brewer, those dollars will be coupled with what amounts to a tax on hospitals.

But that program itself could wind up before the Supreme Court, with foes of Medicaid expansion arguing that lawmakers illegally enacted a tax hike without the requisite two-thirds vote required by the Arizona Constitution. Attorneys for the governor contend the levy is not a tax and needed only a simple majority of both the House and Senate.

More about

More about

More about

  • Discuss

Zeke Jones talks about going to ASU and his time as National Coach

National Freestyle Coach Zeke Jones talks about decision to accept Arizona State job, and his ...

Facebook

ahwatukee.com on Facebook

Twitter

ahwatukee.com on Twitter

RSS

Subscribe to ahwatukee.com via RSS

RSS Feeds

Spacer4px

Zeke Jones talks about going to ASU and his time as National Coach

National Freestyle Coach Zeke Jones talks about decision to accept Arizona State job, and his ...

[Sponsored] Welcome to Ahwatukee Skin & Laser

Discover the different Ahwatukee Skin & Laser offers for medical and cosmetic dermatology. We...

Chandler Rotary boys 100M finals

Mountain Pointer's Paul Lucas wins race in 10.52 despite stumble out of blocks.

Online poll

Loading…