Keeney v. Fitch

• Decision Date: 24 March 2015
• Docket Number: ED 101981
• Parties: Jerome Keeney, Jr., Plaintiff/Appellant, v. Tim Fitch, Superintendent of Police, St. Louis County and Colonel Ronald Replogle, Superintendent, Missouri Highway Patrol, Defendants/Respondents.
• Court: Missouri Court of Appeals

458 S.W.3d 838

Jerome Keeney, Jr., Plaintiff/Appellant

v.Tim Fitch, Superintendent of Police, St. Louis County and Colonel Ronald Replogle, Superintendent, Missouri Highway Patrol, Defendants/Respondents.

ED 101981

Missouri Court of Appeals, Eastern District, DIVISION TWO .

Filed: March 24, 2015

Michael T. George, 1717 Park Avenue, St. Louis, MO 63104, For Plaintiff/Appellant.

Lorena V. Von Kaenel, 41 S. Central Ave., 9th Floor, Clayton, MO 63105, for For Defendant/Respondent Fitch.

Michael R. Cherba, P.O. Box 861, St. Louis, MO 63188, For Defendant/Respondent Replogle.

Sherri B. Sullivan, P.J.

Introduction

Jerome Keeney, Jr. (Appellant) appeals from the trial court's summary judgment entered in favor of Tim Fitch, Superintendent of Police, St. Louis County and Colonel Ronald Replogle, Superintendent, Missouri Highway Patrol (Respondents) on Appellant's Petition for Declaratory Judgment. We reverse and remand.

Factual and Procedural Background

In 1988, the St. Louis County Police Department received complaints that various men were engaging in homosexual sexual acts in open view of the public in the parking lot and bathrooms of a rest stop at 700 Dunn Road, situated off Highway 270 and consisting of a tourist information booth, parking lot and associated facilities. As a result of the complaints, the St. Louis County Police Department investigated and conducted an undercover sting operation on September 28, 1988, “reference homosexual activity,” in which Detective Robert Bayes of the Bureau of Special Investigation for St. Louis County parked at the rest stop and sat in his car, waiting. While sitting in his car, undercover, Detective Bayes observed Appellant sitting in his car. Appellant started a conversation with Detective Bayes and asked Detective Bayes to sit in Appellant's car with him. Detective Bayes agreed and got in Appellant's car with him at the rest stop. Appellant and Detective Bayes talked for about ten minutes. Appellant placed his hand on Detective Bayes's clothed groin area. Detective Bayes then identified himself as a police officer and placed Appellant under arrest.

The State charged Appellant with attempt sexual misconduct, third degree, a Class C misdemeanor, by information as follows:

That [Appellant], in violation of Section 564.011, RSMo,¹ committed the class C misdemeanor of an attempt to commit the offense of sexual misconduct, punishable upon conviction under Sections 558.011.1(7) and 560.016, RSMo, in that on or about Wednesday, September 28, 1988, at approximately 8:20 p.m., at 700 Dunn Road, in the County of St. Louis, State of Missouri, [Appellant] grabbed the groin of Det. Bayes, and such conduct was a substantial step toward the commission of the crime sexual misconduct, and was done for the purpose of committing such sexual misconduct.

On September 11, 1989, Appellant pled guilty to the charge and received a suspended imposition of sentence and two years' probation.

Section 566.090, the sexual misconduct statute in effect at the time of this incident, provided:

1. A person commits the crime of sexual misconduct if:

(1) Being less than seventeen years old, he has sexual intercourse with another person to whom he is not married who is fourteen or fifteen years old; or

(2) He engages in deviate sexual intercourse with another person to whom he is not married and who is under the age of seventeen years; or

(3) He has deviate sexual intercourse with another person of the same sex.

2. Sexual misconduct is a class A misdemeanor.

Section 566.090, RSMo 1978 (since repealed).

Because of this conviction, on January 8, 2010, Appellant was instructed to file his initial registration with the Missouri Sex Offender Registry. On August 30, 2013, Appellant filed a Petition for Declaratory Judgment requesting that he no longer be required to register as a sex offender because attempting to engage in homosexual relations is no longer a criminal offense.

Appellant and Respondents filed cross-motions for summary judgment. Both sides presented their motions to the trial court with proposed findings of fact and conclusions of law. On July 31, 2014, the trial court granted Respondents' motion for summary judgment, adopting their joint proposed findings of fact and conclusions of law as its judgment, and denied Appellant's motion for summary judgment and underlying petition for declaratory relief. This appeal follows.

Points on Appeal

In his first point, Appellant argues the trial court erred in concluding his conduct was not innocent and he therefore should be required to register as a sex offender because the court erroneously declared and/or applied the law by failing to recognize the right to consensual same-sex conduct was affirmed in Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003).

In his second point, Appellant maintains the trial court erred in concluding his obligation to register as a sex offender was based on conduct that occurred “in public” because the court erroneously declared and/or applied the law in that Appellant was not charged with public indecency or an act that had as an element that the charged conduct must have occurred in public.

In his third point, Appellant claims the trial court erred in concluding he should be required to register as a sex offender because the court erroneously declared and/or applied the law by stating that Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003), stands only for protecting same-sex relations when they are private sexual acts “committed” in one's home, in that the reasoning of Lawrence was not limited to sexual activity within the home and Appellant did, actually, have the right to rely upon the privacy afforded to a person seated in his darkened automobile at night.

In his fourth point, Appellant asserts the trial court erred in concluding he should be required to register as a sex offender because the court erroneously declared and/or applied the law as stated in State ex rel. Kauble v. Hartenbach, 216 S.W.3d 158 (Mo.banc 2007), by finding the petitioner in Kauble was not entitled to and was denied relief, in that the Missouri Supreme Court actually found Mr. Kauble should be entitled to the relief he sought but had not named the proper parties.

Standard of Review

Whether summary judgment was proper is a question of law. Turner v. School Dist. of Clayton, 318 S.W.3d 660, 664 (Mo.banc 2010). This Court's review of a grant of summary judgment is de novo ; therefore, the trial court's order may be affirmed by this Court on an entirely different basis than that posited at trial, and this Court will affirm the grant of summary judgment under any appropriate theory. Id. The Court views the record in the light most favorable to the party against whom judgment was entered and affords that party the benefit of all reasonable inferences. Id. For summary judgment to be entered in its favor, the movant has the burden of proving that no genuine issues of material fact exist and that it is entitled to judgment as a matter of law. Id.

The parties to this action do not contest the trial court's determination that there are no genuine issues of material fact in this case. Rather, the issue on appeal is whether the trial court erred in determining Respondents were entitled to summary judgment as a matter of law. See generally Purcell v. Cape Girardeau County Comm'n, 322 S.W.3d 522, 524 (Mo.banc 2010).

Analysis

SORNA and SORA

In 2006, Congress enacted the federal Sex Offender Registration and Notification Act (SORNA), 42 U.S.C. §§ 16901 –16962 (2006), instructing states to pass legislation setting up a sex offender registration system and requiring sex offenders to register. 42 U.S.C. §§ 16912 –16913. The statute sought to establish a comprehensive national system for the registration of offenders in order to “protect the public from sex offenders and offenders against children[.]” 42 U.S.C. § 16901.

SORNA requires all sex offenders, “including sex offenders convicted of the offense for which registration is required prior to the enactment of that Act [,]” 28 C.F.R. § 72.3, to “register, and keep the registration current, in each jurisdiction where the offender resides, where the offender is an employee, and where the offender is a student.” 42 U.S.C. § 16913(a). SORNA defines “sex offender” as “an individual who was convicted of a sex offense.” 42 U.S.C. § 16911(1). The definition of “sex offense” includes “a criminal offense that has an element involving a sexual act or sexual contact with another,” and “an attempt or conspiracy to commit” that sexual act or contact. 42 U.S.C. § 16911(5)(A). State law crimes are “criminal offenses.” 42 U.S.C. § 16911(6).

This federal obligation triggers Missouri's registration requirements under its own sex offender registration act (“SORA”), which it originally enacted in 1994 and later amended in 2006. Sections 589.400 –589.425 RSMo 2006; Doe v. Toelke, 389 S.W.3d 165, 167 (Mo.banc 2012). The purpose of SORA is also, like SORNA, to protect children from violence at the hands of sex offenders and to respond to the known danger of recidivism among sex offenders. Doe v. Phillips, 194 S.W.3d at 833, 839 (Mo.banc 2006).

In Section 589.400(7), SORA provides that any person required to register under federal law, i.e., SORNA, must register with the chief law officers of their county of residence in Missouri. Under this provision, Respondents maintain Appellant is required to register in Missouri because he is required to register under SORNA as “an individual who was convicted of a sex offense” under Missouri state law.

Appellant and the Registry

As set forth in detail supra, Appellant pled guilty in 1989 to the since-repealed Class C misdemeanor of attempt third degree sexual misconduct in the form of attempting to engage in deviate sexual intercourse with an individual of the same sex. Despite the existence of this historical fact, we find it of no effect at the present time and conclude for all intents and...