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State v. The Eighth Judicial Dist. Court of the State

Supreme Court of Nevada

July 25, 2013

The STATE of Nevada, Petitioner,
v.
The EIGHTH JUDICIAL DISTRICT COURT OF the State of Nevada, in and for the County of Clark; and the Honorable William O. Voy, District Judge, Family Court Division, Respondents, and LOGAN D., A Minor, Real Party in Interest.

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Catherine Cortez Masto, Attorney General, Carson City; Steven B. Wolfson, District Attorney, and Jonathan VanBoskerck, Chief Deputy District Attorney, Clark County, for Petitioner.

Philip J. Kohn, Public Defender, and Howard Brooks and Susan Deems Roske, Deputy Public Defenders, Clark County, for Real Party in Interest.

Margaret A. McLetchie, Las Vegas, for Amicus Curiae American Civil Liberties Union of Nevada.

BEFORE THE COURT EN BANC.

OPINION

DOUGLAS, J.:

In this original writ proceeding, we consider whether Assembly Bill 579, enacted by the 2007 Nevada Legislature, providing for the retroactive application of mandatory sex offender registration and community notification requirements on juveniles adjudicated for certain sex offenses, violates the Due Process and Ex Post Facto Clauses of the United States and Nevada Constitutions. We conclude that registration and community notification do not violate the Due Process or Ex Post Facto Clauses. We therefore grant the petition.

FACTS AND PROCEDURAL HISTORY

Real party in interest Logan D. was adjudicated delinquent for one count of lewdness with a minor on October 4, 2006, for an offense alleged to have occurred in August 2006 when he was 17 years old. The law in place at the time of Logan's adjudication provided the juvenile court with discretion to require a juvenile adjudicated for a sexual offense to submit to adult registration and community notification if the court determined at a hearing that the juvenile was not rehabilitated or was likely to pose a threat to public safety. 2005 Nev. Stat., ch. 507, § 26, at 2873-74. Pursuant to that law, the juvenile court scheduled a hearing for September 2009 to determine whether Logan would be required to register as an adult sex offender. Before that hearing took place, however, the Legislature passed Assembly Bill (A.B.) 579. That bill, codified in relevant part in NRS Chapter 62F and NRS Chapter 179D, removed the juvenile court's discretion to determine whether a juvenile sex offender should be subject to registration and community notification as an adult. The new law mandated that all juveniles aged 14 and older who are adjudicated for certain sex offenses register as adult sex offenders and be subject to community notification; the law prohibited the imposition of these requirements on juvenile offenders under the age of 14. NRS 62F.200; NRS 179D.035; NRS 179D.095(1); NRS 179D.441; NRS 179D.475. On December 28, 2007, six months before A.B. 579 was

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to take effect, 2007 Nev. Stat., ch. 485, § 57, at 2780, Logan and approximately 20 other juveniles filed motions asking the juvenile court to find the bill unconstitutional as applied to juvenile sex offenders. The juveniles asserted that A.B. 579 was unconstitutionally vague and violated procedural and substantive due process as well as the Contracts, Ex Post Facto, and Cruel and/or Unusual Punishment Clauses of the federal and state constitutions.

After full briefing and several hearings, the juvenile court entered an order declaring A.B. 579 unconstitutional as applied to juvenile sex offenders. The juvenile court concluded that the statutory scheme violated substantive due process because it did not bear a rational relationship to the " rehabilitation and public safety goals of the Juvenile Court and the Department of Juvenile Justice nor the public safety goals of the Adam Walsh Act." The juvenile court determined that prohibiting registration and community notification for high-risk juvenile sex offenders under the age of 14 while mandating those requirements for low-risk juvenile sex offenders over the age of 14 was irrational because such an approach does not serve to prevent recidivism or further rehabilitation.

The State filed an appeal from the juvenile court's order, and the affected juveniles, including Logan D., filed cross-appeals. This court dismissed the appeals for lack of jurisdiction. In re Logan D., a Minor, Docket No. 51682 (Order Dismissing Appeals, September 5, 2008). This original petition for a writ of prohibition or, alternatively, mandamus followed. [1]

DISCUSSION

A writ of prohibition is available to halt proceedings occurring in excess of a court's jurisdiction, NRS 34.320, while a writ of mandamus may issue to compel the performance of an act which the law requires " as a duty resulting from an office, trust or station," NRS 34.160, or to control an arbitrary or capricious exercise of discretion, see Round Hill Gen. Improvement Dist. v. Newman, 97 Nev. 601, 603-04, 637 P.2d 534, 536 (1981). This court will exercise its discretion to consider petitions for extraordinary writs " only when there is no plain, speedy and adequate remedy in the ordinary course of law or there are either urgent circumstances or important legal issues that need clarification in order to promote judicial economy and administration." Cheung v. Eighth Judicial Dist. Court, 121 Nev. 867, 869, 124 P.3d 550, 552 (2005) (internal quotation marks and footnote omitted).

This petition raises important legal issues potentially affecting all persons who have been adjudicated delinquent for certain sex offenses since 1956. And because this court previously determined that the challenged order was not substantively appealable, petitioner has no other remedy at law. We therefore exercise our discretion to consider the merits of this petition.

Background

In 2006, the United States Congress enacted the Adam Walsh Child Protection and Safety Act, which included the Sex Offender Registration and Notification Act (SORNA). 42 U.S.C. §§ 16901-16962 (2006). SORNA was promulgated " to protect the public from sex offenders and offenders against children, and in response to ... vicious attacks by violent predators." Id. § 16901. SORNA mandates, in relevant part, that each state require persons convicted of certain sex offenses to periodically register with authorities and provide specified information, id. §§ 16913-16914, maintain a statewide sex offender registry containing specific information pertaining to each registered sex offender, id. §§ 16912 & 16914, implement a community notification program, id. § 16921, and provide a criminal penalty for sex offenders who fail to comply, id. § 16913. SORNA specifically defines the term " convicted" as including juveniles adjudicated delinquent

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for certain sex offenses. Id. § 16911(8). A state's failure to timely comply with the Act's requirements in a given fiscal year results in a 10-percent reduction of certain funds from the federal government. Id. §§ 16924-16925.

In response to the federal legislation, Nevada passed A.B. 579, with an effective date of July 1, 2008. 2007 Nev. Stat., ch. 485, § 57, at 2780. Under Nevada's version of the law, a " sex offender" is defined to include any person who, after July 1, 1956, has been adjudicated delinquent for sexual assault, battery with the intent to commit sexual assault, lewdness with a child, or an attempt or conspiracy to commit any of these offenses, so long as the offender was 14 years or older at the time of the offense. NRS 62F.200(1); NRS 179D.095(1)(b). The " term does not include an offense involving consensual sexual conduct if the victim was at least 13 years of age and the offender was not more than 4 years older than the victim at the time of the commission of the offense." NRS 62F.200(2).

Sex offenders are required to initially register before completing the term of imprisonment for a crime, or if not imprisoned, no later than three business days after sentencing. NRS 179D.445(2). They must provide authorities with the following information: name, aliases, social security number, residence address, name and address of employer, name and address of school, and description and license plate number of all vehicles frequently driven or registered to them. NRS 179D.443(1). Any changes in name, residence, employment, or student status must be reported, in person, within three business days. NRS 179D.447(1). Failure to comply is a category D felony. NRS 179D.550(1).

Sex offenders are classified into three tiers; juvenile sex offenders can fall into any of these categories depending on their offense and prior history. Juveniles adjudicated for sexual assault, battery with the intent to commit sexual assault, or an attempt or conspiracy to commit these offenses are classified as Tier III offenders. See NRS 179D.117(2), (3) & (8). Juveniles can also be classified as Tier III offenders if they are already a Tier II offender and commit another sexual offense or crime against a child. NRS 179D.117(6). Juveniles adjudicated for lewdness with a child or attempted lewdness with a child are classified as Tier II offenders. See NRS 179D.115 (defining a Tier II offender as a person convicted of a crime against a child punishable by more than 1 year in prison); see also NRS 201.230 (lewdness is a category A felony); NRS 193.330(1)(a)(1) (attempt to commit a category A felony is a category B felony). Tier II assignment may also be made if a juvenile is already a Tier I offender and any of his " sexual offenses constitute an offense punishable by imprisonment for more than 1 year." NRS 179D.115(4). Finally, juveniles adjudicated for conspiracy to commit lewdness with a child are Tier I offenders. See NRS 179D.113; see also NRS 193.140 (gross misdemeanor punishable by not more than one year in jail); NRS 199.480(3) (conspiracy is a gross misdemeanor).

Each tier has different reporting requirements. Tier III offenders must appear in person every 90 days and allow fingerprints, palm prints, and a photograph to be taken, and update any required information. NRS 179D.480(1)(c). Tier II offenders are required to appear in person every 180 days, and Tier I offenders once per year, for the same purpose. NRS 179D.480(1)(a)-(b). Tier III offenders must register for life; if, however, they are Tier III offenders as the result of a juvenile adjudication, they may petition for relief from the registration requirements after a period of 25 consecutive years without a conviction for a new felony or sexual offense, and successful completion of any probationary or parole terms and a certified sex offender treatment program. NRS 179D.490(2)-(4). Tier II offenders must register for 25 years and Tier I offenders for 15 years. NRS 179D.490(2)(a)-(b). Tier I offenders may, however, petition for release after 10 consecutive years if they meet the same requirements for early release as Tier III offenders. NRS 179D.490(3)(a). There is no early release provision for Tier II offenders.

Juvenile sex offenders are subject to both active and passive community notification.

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Local law enforcement agencies are required to provide registration information to (1) every school, religious and youth organization, and public housing agency in which the sex offender is a student, worker, or resident; (2) every child welfare agency; (3) volunteer organizations through which contact with vulnerable persons or children may occur; and (4) if the sex offender is classified as a Tier III offender, members of the public likely to encounter the sex offender. NRS 179D.475(2). Further, any person, company, or organization may request registration information from the Central Repository for Nevada Records of Criminal History. NRS 179D.475(1)(e).

Juvenile sex offenders' information is also available via Nevada's community notification website. NRS 179B.250. Any member of the public may perform a search by name, alias, or zip code, yielding the following information about registered sex offenders: name and aliases; physical description; current photograph; year of birth; residence, school, and employer address; license plate number and description of any vehicle owned or operated by the sex offender; name of, and citation to, the specific statute violated; court convicted in; name convicted under; name and location of every penal institution, hospital, school, mental facility, or other institution committed to; location of offense committed; and assigned tier level. NRS 179B.250(6)(c). The website does not convey information regarding Tier I offenders unless they have been convicted of a sexual offense against a child or a crime against a child. NRS 179B.250(7)(b). It also does not reveal an offender's social security number, the name of an offender's school or employer, arrests not resulting in conviction, and any other registration information not expressly required to be disclosed by paragraph (6)(c) or exempted from disclosure pursuant to federal law. NRS 179B.250(7)(c)-(g).

The public is prohibited from using information obtained from the community notification website, except as allowed by statute, " for any purpose related to" insurance; loans; credit; employment; education, scholarships, or fellowships; housing or accommodations; or benefits, privileges, or services from any business. NRS 179B.270. Neither may registration information " be used to unlawfully injure, harass or commit a crime against any person named in the registry or residing or working at any reported address." NRS 179B.250(2)(e). Misuse of information obtained from the website can result in civil and criminal penalties. NRS 179B.280; NRS 179B.285.

The juvenile court's holding

The juvenile court declared A.B. 579 unconstitutional as applied to juvenile sex offenders, concluding that the bill violated substantive due process because it neither bore a rational relationship to the public safety goals of the bill nor furthered the rehabilitation and public safety goals of the juvenile justice system.[2] The juvenile court's primary concern with the bill was that it required community notification for all juvenile sex offenders over the age of 14 and adjudicated for certain offenses, regardless of their risk to reoffend, but did not allow community notification for those offenders under the age of 14, even those who represent a high risk to reoffend. We share the juvenile court's concerns regarding the wisdom of this legislation. Nevertheless, we are bound to follow the law, and A.B. 579, as applied to juveniles, easily passes rational basis review.

The constitutionality of a statute presents a question of law that this court reviews de novo. State v. Hughes, 127 Nev. __, __, 261 P.3d 1067, 1069 (2011). Statutes are cloaked with a presumption of validity and the burden is on the challenger to demonstrate that a statute is unconstitutional. Id. When undertaking a substantive due process analysis, a statute that does not infringe upon a fundamental right will be upheld

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if it is rationally related to a legitimate government purpose. Bowers v. Whitman, 671 F.3d 905, 916-17 (9th Cir.), cert. denied, 568 U.S. __, 133 S.Ct. 163, 184 L.Ed.2d 234 (2012); see also Gaines v. State, 116 Nev. 359, 372, 998 P.2d 166, 174 (2000). The Legislature need not articulate its purpose in enacting a statute; the statute will be upheld if any set of facts can reasonably be conceived of to justify it. FCC v. Beach Communications, Inc., 508 U.S. 307, 315, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993); Sereika v. State, 114 Nev. 142, 149, 955 P.2d 175, 179 (1998). A legislative choice " may be based on rational speculation unsupported by evidence or empirical data." FCC, 508 U.S. at 315, 113 S.Ct. 2096. And the Legislature enjoys broad discretion to make reasonable distinctions when enacting legislation. Allen v. State, Pub. Emps. Ret. Bd., 100 Nev. 130, 136-37, 676 P.2d 792, 796 (1984).

In line with the stated purpose of its federal counterpart, the Nevada Legislature could have determined that the enactment of A.B. 579 was required to protect the public from sex offenders, unquestionably a legitimate government interest. See 42 U.S.C. § 16901 (2006) (stating that the purpose of the act was " to protect the public from sex offenders and offenders against children" ); Nollette v. State, 118 Nev. 341, 346, 46 P.3d 87, 90-91 (2002) (concluding that the purpose of Nevada's previous version of sex offender registration and community notification laws was to aid law enforcement in solving crimes and to protect the public). To this end, the Legislature could have determined that juveniles adjudicated for the enumerated offenses, which represent the most serious of sexual offenses, are at a higher risk to reoffend— and thus pose a greater danger to the public— than juveniles adjudicated for other, less serious offenses. See Helman v. State, 784 A.2d 1058, 1075 (Del.2001). And consistent with the Legislature's presumption since 1911 that children aged 14 and older know the wrongfulness of their actions, see NRS 194.010(1)-(2) (unchanged since enactment in 1911, see Nev. Rev. Laws § 6268 (1912)), it could have also concluded that once a child reaches the age of 14, he or she commits a sex offense with knowledge that it is wrong and therefore poses a greater risk to the public than a younger child who commits the same offense. Given these possible justifications for the distinctions drawn in the legislation, we conclude that the juvenile court erred by concluding that A.B. 579 did not survive rational basis review. See United States v. Juvenile Male, 670 F.3d 999, 1009-10 (9th Cir.) (application of SORNA to juvenile sex offenders satisfies rational basis review), cert. denied, 568 U.S. __, 133 S.Ct. 234, 184 L.Ed.2d 122 (2012); In re J.R., 341 Ill.App.3d 784, 275 Ill.Dec. 916, 793 N.E.2d 687, 694-96 (2003) (registration and limited community notification as applied to juvenile sex offenders survive rational basis review); In re Ronnie A., 355 S.C. 407, 585 S.E.2d 311, 312 (2003) (registration of juvenile sex offenders is rationally related to goal of public protection); In re M.A.H., 20 S.W.3d 860, 866 (Tex.App.2000). But see In re W.Z., 194 Ohio App.3d 610, 957 N.E.2d 367, 377 (2011) (no rational basis for automatic registration of juvenile sex offenders at time of adjudication where, pursuant to state law, court made a determination as to rehabilitation when juvenile turned 21).

Of utmost concern, it does not appear from the legislative history that the Nevada Legislature ever considered the impact of this bill on juveniles or public safety. The body's motivation for passing the bill appears to be compliance with the Walsh Act and avoidance of the reduction in grant monies that would come with noncompliance. See, e.g., Hearing on A.B. 579 Before the Assembly Select Comm. on Corrections, Parole, and Probation, 74th Leg. (Nev., April 10, 2007). Under rational basis review, however, we " are not limited to consideration of the justifications actually asserted by the legislature," Sereika, 114 Nev. at 149, 955 P.2d at 179; so long as plausible reasons for an action exist, it is " constitutionally irrelevant whether this reasoning in fact underlay the legislative decision," U.S. R.R. Ret. Bd. v. Fritz, 449 U.S. 166, 179, 101 S.Ct. 453, 66 L.Ed.2d 368 (1980) (internal quotation marks omitted); see also Allen, 100 Nev. at 134, 676 P.2d at 795 (" The existence of facts which would support the legislative judgment is presumed." ). And " [t]his is particularly true where the legislature must necessarily engage in a process of

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line-drawing." Fritz, 449 U.S. at 179, 101 S.Ct. 453.

Our inquiry does not end, however, with our conclusion that the juvenile court erred by holding that A.B. 579 did not withstand rational basis review. If this court determines that the statutory scheme is unconstitutional for any other reason presented to the juvenile court, we will nevertheless uphold the order declaring the legislation unconstitutional. Cf. Wyatt v. State, 86 Nev. 294, 298, 468 P.2d 338, 341 (1970) (" If a judgment or order of a trial court reaches the right result, although it is based on an incorrect ground, the judgment or order will be affirmed on appeal." ). We therefore examine Logan's other constitutional challenges.

Substantive due process

Logan contends that the community notification provisions of A.B. 579 impinge on juveniles' fundamental right to privacy and are therefore subject to strict scrutiny review. We disagree.

The substantive component of the Fourteenth Amendment to the United States Constitution recognizes certain " fundamental rights" upon which the government's ability to intrude is sharply limited. See, e.g., Paul v. Davis, 424 U.S. 693, 712-13, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976). A substantive due process analysis begins " with a careful description of the asserted right." Reno v. Flores, 507 U.S. 292, 302, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993). If the asserted right is " deeply rooted" in tradition and history and so " implicit in the concept of ordered liberty" that " neither liberty nor justice would exist if [it] were sacrificed," the asserted right is a fundamental one. Washington v. Glucksberg, 521 U.S. 702, 721, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997) (internal quotation marks omitted); see also Palko v. Connecticut, 302 U.S. 319, 325-26, 58 S.Ct. 149, 82 L.Ed. 288 (1937), overruled on other grounds by Benton v. Maryland, 395 U.S. 784, 794, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). A statute that infringes on a fundamental right is subject to strict scrutiny and will be invalidated unless it is " narrowly tailored to serve a compelling state interest." In re Parental Rights as to D.R.H., 120 Nev. 422, 427, 92 P.3d 1230, 1233 (2004) (internal quotation marks omitted). If the statute does not abridge a fundamental right, it is reviewed under the rational basis test and will be upheld so long as it bears a rational relationship to a legitimate state interest. See Allen, 100 Nev. at 134, 676 P.2d at 794-95.

Logan contends that " [a]n individual's right to privacy is clearly impacted by community notification." Besides this vague reference to the right of privacy, he fails to identify the precise right asserted. Because Logan challenges the community notification provisions of A.B. 579, we conclude that his claim is appropriately stated as the right to have records of juvenile adjudications for sex offenses kept confidential. We further conclude that this is not a fundamental right protected by the substantive component of the Fourteenth Amendment of the United States Constitution, see U.S. Const. amend. XIV, § 1, or the due process clause of the Nevada Constitution, see Nev. Const. art. 1, § 8(5).

The Supreme Court has identified fundamental rights as including " the rights to marry, to have children, to direct the education and upbringing of one's children, to marital privacy, to use contraception, to bodily integrity, and to abortion." Glucksberg, 521 U.S. at 720, 117 S.Ct. 2258 (internal citations omitted). Also included may be the right to " refuse unwanted lifesaving medical treatment." Id. This court has consistently relied upon the Supreme Court's holdings interpreting the federal Due Process Clause to define the fundamental liberties protected under Nevada's due process clause. See, e.g., Arata v. Faubion, 123 Nev. 153, 158-59, 161 P.3d 244, 248-49 (2007); Kirkpatrick v. Eighth Judicial Dist. Court, 119 Nev. 66, 71, 64 P.3d 1056, 1059-60 (2003).

We conclude that Logan's asserted right, while unquestionably important, does not come within the ambit of the type of rights deemed fundamental by the Supreme Court. Other courts have reached the same conclusion. See, e.g., Doe v. Mich. Dep't of State Police, ...


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