State v. Eighth Judicial Dist. Court of State

Decision Date25 July 2013
Docket NumberNo. 52477.,52477.
PartiesThe 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.
CourtNevada Supreme Court

OPINION TEXT STARTS HERE

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

By the Court, 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 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 delinquentfor 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. SeeNRS 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. SeeNRS 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 alsoNRS 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. SeeNRS 179D.113; see alsoNRS 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...

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