PETITIONER F. v. Brown, 2008-SC-000213-DG.
| Decision Date | 18 March 2010 |
| Docket Number | No. 2008-SC-000213-DG.,2008-SC-000213-DG. |
| Citation | 306 SW 3d 80 |
| Parties | PETITIONER F; Petitioner G; Petitioner H; Petitioner J; and Petitioner K, Appellants, v. Bridget Skaggs BROWN, Commissioner, Department of Juvenile Justice, in her Official Capacity, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
Mary Gail Robinson, Assistant Public Advocate, Timothy G. Arnold, Assistant Public Advocate, Department of Public Advocacy, Frankfort, KY, Counsel for Appellants.
Joslyn Olinger Glover, Justice and Public Safety Cabinet, Office of Legal Services, Department of Juvenile Justice, Frankfort, KY, Counsel for Appellee.
Appellants are juveniles adjudicated public offenders for various sex offenses.1 They argue that the 2002 versions of Kentucky's DNA sampling statutes2 do not require them to submit DNA for inclusion in a state and national database. Appellants also present constitutional and administrative challenges to the statutes. Appellee is Commissioner of the Department of Juvenile Justice (DJJ), which implemented directives and policies to sample DNA from certain juveniles under its custody or control. For the reasons that follow, we reject Appellants' challenges, and affirm the judgment of the Court of Appeals.
KRS 17.175(2). KRS 17.175(1) and (2) remain largely unchanged since 1992.
As part of the same 1992 act,4 the General Assembly also permitted the collection of DNA samples from those convicted of certain felonies, codified at KRS 17.170. As amended in 1996,5 KRS 17.170(1) permitted the Department of Corrections to take a DNA sample from "any person convicted after the effective date of a felony offense under KRS Chapter 510 or KRS 530.020."
In 2001, the Court of Appeals in J.D.K. v. Commonwealth held that juveniles adjudicated public offenders did not fall within the purview of KRS 17.170, because an adjudicated juvenile has not been convicted of a felony offense. 54 S.W.3d 174, 176 (Ky.App.2001). The Court of Appeals noted that KRS 635.040 states that "no adjudication by a juvenile session of district court shall be deemed a conviction. ..." Id. The court also noted that "the Unified Juvenile Code does not distinguish between or among felonies, misdemeanors, or violations for purposes of dispositions in juvenile court." Id.
In the next regular legislative session following J.D.K., the General Assembly passed House Bill 4.6 The bill made slight modifications to the language of KRS 17.170. In addition, the bill created several new statutes, which expanded the class of persons subject to DNA sampling. KRS 17.171 added those convicted of unlawful transaction with a minor in the first degree, use of a minor in a sexual performance, promoting a sexual performance by a minor, or a felony attempt to commit any of these offenses. KRS 17.172 added those convicted of first- or second-degree burglary or a felony attempt to commit either of these offenses. KRS 17.174 added certain juveniles adjudicated public offenders.7
The provisions of House Bill 4, passed in 2002, are at issue in this case. Since 2002, the General Assembly has amended KRS 17.170 four times, and has repealed KRS 17.171-17.174.8 Under the current law, KRS 17.170 requires DNA sampling of all persons convicted of felonies, as well as juveniles who (1) were 14 years or older at the time of their offense, and (2) have been adjudicated a public offender for a felony sex offense, incest, or being a juvenile sexual offender.
On December 20, 2005, Appellee, DJJ Commissioner Bridget Skaggs Brown, issued a General Directive establishing a procedure for the sampling of DNA from juvenile public offenders. However, Brown issued another Directive 8 days later, postponing DNA sampling for a minimum of 30 days.
On February 1, 2006, DJJ issued Policy DJJ 138, which provided procedures for DNA sampling of adjudicated public offenders "as mandated by KRS 17.170, 17.171, 17.172, 17.173, and 17.174." On February 3, 2006, Brown issued General Directive 06-02 (establishing procedures for "DNA sample collection as mandated by KRS 17.170-17.174"). However, due to Appellants' legal challenge, Brown delayed implementation of DNA sampling on February 16, 2006 with General Directive 06-05. General Directive 06-05 also included an amended list of qualifying offenses for juvenile public offenders to mirror the offenses listed in KRS 17.170-17.172.9
Appellants filed a petition for a writ of prohibition and declaration of rights in Franklin Circuit Court on February 15, 2006. The circuit court ordered the case to be briefed in the same manner as an administrative appeal. Additionally, Appellee filed a motion for summary judgment. On October 26, 2006, the circuit court entered a 14-page Order granting judgment in favor of Appellee and DJJ. The Court of Appeals affirmed. This Court then granted discretionary review.
Appellants present four issues for review: (I) whether DJJ erroneously applied the DNA sampling statutes to juvenile public offenders, (II) whether DNA sampling violates Appellants' federal and state constitutional rights, (III) whether DJJ violated KRS Chapter 13A by failing to issue administrative regulations concerning DNA sampling, and (IV) whether DJJ violated final action by the Justice Cabinet by issuing its own Directives and policies.
Appellants argue that the Franklin Circuit Court and the Court of Appeals misconstrued the DNA sampling statutes. The relevant 2002 statutes are listed below.10 KRS 17.170(1):
Any person convicted on or after July 14, 1992, of a felony offense under KRS Chapter 510 sex offenses or KRS 530.020 incest, shall, or who is in the custody of the Department of Corrections on July 14, 1992, under KRS Chapter 510 or KRS 530.020 may, have a sample of blood, an oral swab, or sample obtained through a noninvasive procedure taken by the Department of Corrections for DNA (deoxyribonucleic acid) law enforcement identification purposes and inclusion in law enforcement identification databases.
Any person convicted on or after July 15, 2002, or who is in the custody of the Department of Corrections on or after July 15, 2002, for a violation of KRS 530.064 unlawful transaction with a minor in the first degree, 531.310 use of a minor in a sexual performance, or 531.320 promoting a sexual performance by a minor or a felony attempt to commit one (1) of these offenses shall be subject to the provisions of KRS 17.170 relating to the collection and retention of deoxyribonucleic acid (DNA) evidence.
Any person convicted on or after July 15, 2002, or who is in the custody of the Department of Corrections on or after July 15, 2002, for a violation of KRS 511.020 first-degree burglary or 511.030 second-degree burglary or a felony attempt to commit one of these offenses shall be subject to the provisions of KRS 17.170 relating to the collection and retention of deoxyribonucleic acid (DNA) evidence.
KRS 17.171 and 17.172 shall apply to a public offender adjudicated a public offender or in the custody of the Department of Juvenile Justice on or after July 15, 2002, for any offense defined in KRS 17.170 or 17.171 or an attempt to commit one (1) of the named offenses.
The Court of Appeals held that KRS 17.174 does not permit DNA sampling of juveniles adjudicated public offenders for offenses listed in KRS 17.172 (). KRS 17.174 contains the qualifying phrase "for any offense defined in KRS 17.170 or 17.171." Therefore, offenses listed in KRS 17.172 are excluded. We accept and adopt this holding of the Court of Appeals, which Appellee has not challenged.
Appellee argues that KRS 17.174 requires DJJ to sample the DNA of all juveniles adjudicated public offenders or in its custody on or after July 15, 2002 for the offenses listed in KRS 17.170 and 17.171. Appellants argue that the statute only authorizes DNA sampling of adults in the custody of the Department of Corrections who, while not having been convicted of a qualifying offense, nevertheless have a qualifying juvenile adjudication.
We begin with general principles of statutory construction. In construing a statute, our goal is to give effect to the intent of the General Assembly. Richardson v. Louisville/Jefferson County Metro Gov't, 260 S.W.3d 777, 779 (Ky.2008) (citing Osborne v. Commonwealth, 185 S.W.3d 645, 648 (Ky.2006)). "To determine legislative intent, we look first to the language of the statute, giving the words their plain and ordinary meaning." Richardson, 260 S.W.3d at 779 (citing Osborne, 185 S.W.3d at 648-49). We read the statute as a whole and in context with other parts of the law. Richardson, 260 S.W.3d at 779 (citing Lewis v. Jackson Energy Co-op. Corp., 189 S.W.3d 87, 92 (Ky.2005)). In addition, an act is to be read as a whole, and any language in the act is to be read in light of the whole act. Popplewell's Alligator Dock No. 1, Inc. v. Revenue Cabinet, 133 S.W.3d 456, 465 (Ky.2004). The construction and application of a statute is a question of law, which we review de novo. Richardson, 260 S.W.3d...
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