Davis v. Okla. Dep't of Corr.

• Citation: 370 P.3d 1231
• Decision Date: 14 March 2016
• Docket Number: No. 113,773.,113,773.
• Parties: Roger DAVIS, Plaintiff/Appellant, v. The OKLAHOMA DEPARTMENT OF CORRECTIONS and Robert Patton, as director, Defendants/Appellees.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

370 P.3d 1231

Roger DAVIS, Plaintiff/Appellant,
v.
The OKLAHOMA DEPARTMENT OF CORRECTIONS and Robert Patton, as director, Defendants/Appellees.

No. 113,773.

Court of Civil Appeals of Oklahoma, Division No. 4.

March 14, 2016.

John M. Dunn, The Law Offices of John M. Dunn, PLLC, Tulsa, OK, for Plaintiff/Appellant.

E. Scott Pruitt, Attorney General, Justin P. Grose, Assistant Attorney General, Oklahoma Office of the Attorney General Litigation Section, Oklahoma City, OK, for Defendants/Appellees.

JOHN F. FISCHER, Judge.

¶ 1 Roger Davis appeals the order granting the Oklahoma Department of Corrections' motion to dismiss his petition seeking declaratory and injunctive relief regarding the Oklahoma Sex Offenders Registration Act, 57 O.S.2011 §§ 581 through 590.2 (Registration Act). Davis's petition alleges that the application of the Registration Act in his case violates his constitutional rights. The appeal has been assigned to the accelerated docket pursuant to Oklahoma Supreme Court Rule 1.36, 12 O.S. Supp. 2013, ch. 15, app. 1, and the matter stands submitted without appellate briefing.¹ We find no violation of the Ex Post Facto Clause or the Equal Protection Clause as asserted by Davis and affirm the district court's order dismissing his petition in that regard. However, because the district court did not address the validity of Davis's due process claim, the case must be remanded for that determination.

BACKGROUND

¶ 2 Davis was convicted in Indiana on October 8, 1997, and sentenced to five years in prison for the crime of "Lewd or Indecent

370 P.3d 1234

Proposals/Acts to a Child." That crime is one requiring registration with the Department of Corrections by any person subject to the Registration Act. 57 O.S. Supp. 2010 § 582.² After serving less than two years of his Indiana sentence, Davis was released from prison. He entered a plea of nolo contendere and received a deferred sentence in October of 1998. Davis completed all requirements of his sentence and probation in 2002. Davis moved to Oklahoma in October of 2013 and registered with the Department as a sex offender. He was assigned risk level three: "a designation that the person poses a serious danger to the community and will continue to engage in criminal sexual conduct." 57 O.S.2011 § 582.5(C)(3).

¶ 3 Davis filed his petition seeking declaratory and injunctive relief. He alleged that the Registration Act constituted an ex post facto law and denied him the equal protection of the laws in violation of the Oklahoma and United States Constitutions. The Department removed the case to the United States District Court for the Western District of Oklahoma and filed a motion to dismiss, arguing that the petition failed to state a claim on which relief could be granted. The federal court granted the motion in part, ruling that Davis had not stated a claim regarding federal ex post facto law. The federal court determined that factual issues precluded resolution of the Department's motion concerning Davis's other claims and remanded the case back to the Oklahoma County district court.

¶ 4 Davis filed an amended petition in district court, asserting only Oklahoma constitutional theories of recovery. The Department renewed its motion to dismiss. Davis appeals the district court's order, which granted the Department's motion to dismiss and found that the petition "failed to state a claim on which relief can be granted with respect to his ex post facto and equal protection claims under the Oklahoma Constitution."

STANDARD OF REVIEW

¶ 5 The purpose of a motion to dismiss a petition for failure to state a claim is to test the law that governs the claim rather than the facts asserted in support of that claim. Kirby v. Jean's Plumbing Heat & Air, 2009 OK 65, ¶ 5, 222 P.3d 21 (citing Conley v. Gibson, 355 U.S. 41, 45–46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957) ). On review of an order dismissing a petition all allegations in the petition are taken as true. Gens v. Casady Sch., 2008 OK 5, ¶ 8, 177 P.3d 565. Appellate review of a motion to dismiss involves de novo consideration of whether the petition is legally sufficient. Indiana Nat'l Bank v. Dep't of Human Servs., 1994 OK 98, ¶ 2, 880 P.2d 371. De novo review requires plenary, independent, and non-deferential examination of the trial court's rulings of law. In re Estate of Bell–Levine, 2012 OK 112, ¶ 5, 293 P.3d 964.

ANALYSIS

¶ 6 Davis's petition alleges the facts of his conviction and incarceration in Indiana, his move to Oklahoma, registration with the Department pursuant to the Registration Act and his classification as a level three risk. He asserts that because of his risk assignment, he is required to register "for life," although had he been convicted in Oklahoma on October 8, 1997, rather than in Indiana, he would have been required to register for only ten years. He contends that application of the Registration Act by the Department violates the prohibition against ex post facto laws and denies him the equal protection of the law. Both theories of recovery assert violations of the Oklahoma Constitution.

I. The Ex Post Facto Argument

¶ 7 As the parties recognize, the Oklahoma Supreme Court's decision in Starkey v. Oklahoma Department of Corrections, 2013 OK 43, 305 P.3d 1004, is the leading case regarding Davis's ex post facto argument. In 1998, Starkey pled nolo contendere and received a deferred sentence in Texas. The crime would have required registration for a period of ten years had it been committed in

370 P.3d 1235

Oklahoma. Starkey moved to Oklahoma sometime in 1998 and registered with the Department as a sex offender. In 2004, the Registration Act was amended to begin the registration period from the date of completion of the sex offender's sentence or probation rather than from the date of conviction. In 2007, the Act was amended again to implement a three-level classification system and lengthen the registration period. After the 2007 amendment, the Department notified Starkey that he had been assigned a level three classification, requiring him to register for life. Starkey challenged the Department's classification.

¶ 8 The Starkey Court held that the Registration Act was penal in nature, and the registration period could not be extended pursuant to a subsequent amendment without violating "the prohibition on ex post facto laws provided in Article 2, § 15 of the Oklahoma Constitution." Id. ¶ 79. The Court rejected Starkey's argument that he should be subject to the version of the Registration Act in effect on the date he was convicted in Texas. "The correct date to apply is when Starkey became subject to [the Registration Act] by entering and intending to be in Oklahoma after his conviction. " Id. ¶ 82 (emphasis in original) (footnote omitted). The Court found that neither the 2004 nor the 2007 amendments to the Registration Act could be applied to Starkey, because he first became subject to registration when he moved to Oklahoma in 1998, prior to the effective date of either amendment.

¶ 9 In its ex post facto analysis in subsequent cases, the Oklahoma Supreme Court has consistently applied the version of the Registration Act in effect when a person convicted in another state first becomes subject to the Registration Act by moving to Oklahoma. See Bollin v. Jones, 2013 OK 72, 349 P.3d 537 ; Burk v. State ex rel. Dep't of Corr., 2013 OK 80, 349 P.3d 545 ; Ransdell v. State ex rel. Oklahoma Dep't of Corr., 2013 OK 106, 322 P.3d 1064. Starkey and these cases are dispositive of Davis's argument that the Ex Post Facto Clause requires application of the version of the Registration Act in effect on the date of his Indiana conviction. It does not. The district court's order dismissing Davis's petition for failure to state a claim for violation of the Ex Post Facto Clause of the Oklahoma Constitution is affirmed.

II. The Equal Protection Argument

¶ 10 Davis also argues that the Department's application of the Registration Act denies him the equal protection of the law. His argument takes two forms. First, Davis argues that he is being treated differently than persons convicted in Oklahoma on the date he was convicted in Indiana. Second, he contends that the Registration Act infringes on his fundamental right to travel, have custody of his children, chose with whom he can live and whom he can marry.

¶ 11 At the oral argument in this case, Davis confirmed that his intent, in filing his amended petition, was to assert an equal protection claim based only on the Oklahoma Constitution. Oklahoma does not have a separate Equal Protection Clause like that contained in the Fourteenth Amendment to the United States Constitution. Fair Sch. Fin. Council of Okla., Inc. v. State, 1987 OK 114, ¶ 54, 746 P.2d 1135. Nonetheless, the Oklahoma Supreme Court has identified "a functional equivalent of that clause in the anti-discrimination component of our state constitution's due process section, Art. 2, § 7, Okla. Const." Ross v. Peters, 1993 OK 8, n. 29, 846 P.2d 1107. See also Torres v. Seaboard Foods, LLC, 2016 OK 20, ¶ 31, ––– P.3d ––– –. Oklahoma's constitution "contains a built-in anti-discrimination component which affords protection against unreasonable or unreasoned classifications serving no ‘important governmental...