Doe v. Neer

• Decision Date: 29 October 2013
• Docket Number: No. ED 99249.,ED 99249.
• Parties: John DOE, Appellant, v. Tom NEER, et al., Respondents.
• Court: Missouri Court of Appeals

409 S.W.3d 451

John DOE, Appellant,

v.Tom NEER, et al., Respondents.

No. ED 99249.

Missouri Court of Appeals,

Eastern District,

Division One.

June 25, 2013.

Application for Transfer to Supreme Court Denied July 31, 2013.

Application for Transfer Denied Oct. 29, 2013.

Gilbert C. Sison, Saint Louis, MO, for Appellant.

Chris Koster, Attorney General, Mary Delworth Morris, Assistant Attorney General, Saint Louis, MO, Jeremiah J. Morgan, Deputy Solicitor General, Jefferson City, MO, Robert Edward Hoeyneck, Office of the St. Louis County, Clayton, MO, for Respondents.

OPINION

GLENN A. NORTON, Judge.

John Doe appeals the judgment entered after a bench trial in favor of Tom Neer, Sheriff of St. Charles County, Missouri, and Colonel Ronald Replogle, Superintendent of the Missouri State Highway Patrol (“Defendants”), on Doe's amended petition for declaratory and injunctive relief. Doe's amended petition alleged that Doe is not required to register as a sex offender in Missouri, sought removal of Doe's name from Missouri's sex offender registry, and requested an injunction prohibiting future prosecution for failure to register. We affirm.

I. BACKGROUND

On July 29, 2004, Doe pled guilty in the Circuit Court of St. Louis County to possession of child pornography, a class A misdemeanor. At the time Doe pled guilty, the duty of registering as a sex offender did not apply to that offense. Section 589.400.1 RSMo Supp.2004.

A. Changes in the Law Affecting Doe's Obligation to Register as a Sex Offender

After Doe pled guilty, the law changed so that a person convicted of possession of child pornography was required to register as a sex offender. H.B. 1055, 92nd Mo. Gen. Assem., 2nd Reg. Sess. (approved June 14, 2004 and effective 90 days after adjournment); Section 589.400.1(2) RSMo Supp.2005. Thereafter, Doe registered as a sex offender in Missouri.

Doe subsequently received a letter from the Missouri Highway Patrol indicating that he no longer had to be on the sex offender registry due to a Missouri Supreme Court ruling. In Doe v. Phillips, the Court held that a law requiring a person to register as a sex offender for an offense that occurred prior to the law's effective date was retrospective in operation in violation of article I, section 13 of the Missouri Constitution. 194 S.W.3d 833, 849–53 (Mo. banc 2006); See Doe v. Blunt, 225 S.W.3d 421, 422 (Mo. banc 2007) (similarly characterizing Doe v. Phillips ). Doe's name was subsequently removed from the sex offender registry.

Thereafter, Doe received another letter from the Missouri Highway Patrol indicating that he was again required to register as a sex offender due to a new Missouri Supreme Court ruling. In Doe v. Keathley, the Court interpreted and applied the federal Sex Offender Registration and Notification Act (“SORNA”), 42 U.S.C. section 16901 et seq. (2006),¹ which was enacted in July 2006 to establish a comprehensive national system for the registration of sex offenders. 290 S.W.3d 719, 720 (Mo. banc 2009); 42 U.S.C. section 16901. The Missouri Supreme Court held that SORNA applies to individuals who committed a sex offense prior to July 2006 and that SORNA imposes an independent obligation requiring those individuals to register as sex offenders in Missouri. Keathley, 290 S.W.3d at 720. The Court also held that the federal registration requirement operates irrespective of any allegedly retrospective state law. Id. Doe subsequently re-registered as a sex offender. For all relevant times during which Doe has been required to register as a sex offender pursuant to SORNA, Doe has remained in Missouri.

B. The Instant Action

In 2012, Doe brought a two-count amended petition for declaratory and injunctiverelief against Defendants. Count I sought a judgment declaring that the provisions of Missouri's Sex Offender Registration Act (“SORA”), sections 589.400 through 589.425 RSMo Supp.2010,² and SORNA do not require Doe to register as a sex offender in Missouri because, inter alia, “the Missouri Supreme Court [in Doe v. Keathley ] has mistaken the true nature of SORNA as a federal statute” and because Doe is an intrastate offender. Count II sought an injunction requiring Defendants to remove Doe's name from Missouri's sex offender registry and prohibiting future prosecution of Doe for failure to register.

After a bench trial, the trial court entered judgment in favor of Defendants on Counts I and II of Doe's amended petition, finding that Doe, a Missouri resident, is required to register as a sex offender in Missouri pursuant to section 589.400.1(7) of SORA because he “has been or is required to register under federal law [ (SORNA) ].” In other words, the trial court found that Doe had an independent federal obligation to register as a sex offender pursuant to SORNA. Doe appeals.

II. DISCUSSION

A. Standard of Review

Our review of a court-tried case is governed by Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). We will affirm the trial court's judgment unless it is not supported by substantial evidence, it is against the weight of the evidence, it erroneously declares the law, or it erroneously applies the law. Id. In this appeal, Doe challenges the trial court's interpretation and application of SORNA and SORA, which are matters that we review de novo. See Otte v. Edwards, 370 S.W.3d 898, 900 (Mo.App. E.D.2012) (matters of statutory interpretation and application are reviewed de novo).

B. Doe Had an Independent Federal Obligation to Register as a Sex Offender Pursuant to SORNA

Doe asserts three points on appeal. In all three points, Doe claims that the trial court erred in finding that Doe had an independent federal obligation to register as a sex offender pursuant to SORNA. We disagree.

1. Doe's Substantive Obligation to Register as a Sex Offender Does Not Arise Only from State Law and Mo. Const. Article I, Section 13 is Not Implicated

In his first point on appeal, Doe contends that the trial court erred in finding that he had an independent federal obligation to register as a sex offender under SORNA because the substantive obligation to register as a sex offender arises only from state law. Doe further asserts that because the registration requirement arises from state law, and SORA did not require him to register as a sex offender at the time of his conviction, the constitutional ban on retrospective legislation precludes Doe from having to register as a sex offender.

The Missouri Constitution provides that “no ... law ... retrospective in its operation ... can be enacted.” Mo. Const. article I, section 13. The Missouri Supreme Court has issued multiple decisions pertaining to sex offenders' obligation to register and the constitutional ban on retrospective legislation. As previously indicated, in Doe v. Phillips the Court held that a law requiring a person to register as a sex offender for an offense that occurred prior to the law's effective date was retrospective in operation in violation of article I, section 13 of the Missouri Constitution. 194 S.W.3d 833, 849–53 (Mo. banc 2006). After Doe v. Phillips, the Missouri Supreme Court issued two decisions interpreting and applying SORNA: Doe v. Keathley, 290 S.W.3d 719 (Mo. banc 2009) and Doe v. Toelke, 389 S.W.3d 165 (Mo. banc 2012). Both decisions discuss the interplay between the state registration requirement found in section 589.400.1(7) of SORA and the federal registration requirement of SORNA found in 42 U.S.C. section 16913(a). Toelke, 389 S.W.3d at 166–67;Keathley, 290 S.W.3d at 720–21. Section 589.400.1(7) of SORA requires a Missouri resident to register as a sex offender if he or she “has been or is required to register under ... federal ... law....” The federal SORNA provides “[a] sex offender shall register ... in each jurisdiction where the offender resides.” 42 U.S.C. section 16913(a). A “sex offender” is “an individual who was convicted of a sex offense,” and the definition of “sex offense” includes “a criminal offense that is a specified offense against a minor.” 42 U.S.C. section 16911(1) and (5)(A)(ii).

In Keathley and Toelke, the Missouri Supreme Court held as follows: If a Missouri resident is a “sex offender” pursuant to the terms of SORNA, SORNA imposes upon such a person an “independent, federally mandated registration requirement” which triggers the individual's duty to register in Missouri pursuant to section 589.400.1(7) of SORA. Toelke, 389 S.W.3d at 167;Keathley, 290 S.W.3d at 720. SORNA's registration requirement applies to persons who committed a sex offense prior to SORNA's July 2006 enactment. Keathley, 290 S.W.3d at 720. Moreover, “[t]he independent registration requirement under SORNA operates irrespective of any allegedly retrospective state law that has been enacted and may be subject to the article I, section 13 ban on the enactment of retrospective state laws.” Id. When the state registration requirement is based on an independent federal registration requirement, article I, section 13 is not implicated because the state registration requirement does not arise from the enactment of a state law and is not based solely on the fact of a past conviction. Id.;Toelke, 389 S.W.3d at 167. Instead, the state registration requirement in section 589.400.1(7) of SORA is based on the person's present status as a sex offender who “has been or is required” to register pursuant to SORNA. Toelke, 389 S.W.3d at 167; section 589.400.1(7). Therefore, if an individual has been required to register pursuant to SORNA, he or she is presently required to register pursuant to SORA. Toelke, 389 S.W.3d at 167.

In this case, Doe claims that “[t]he Missouri Supreme Court ... erred in concluding that there was an independent, federal obligation under SORNA to register as a sex offender.” ³ However, our Court is constitutionally bound to follow Doe v. Keathley and Doe v. Toelke because they are the most recent controlling decisions of the Missouri Supreme Court. Carter v. Division of Employment Sec.,...