Selig v. Russell, WD 82804

CourtCourt of Appeal of Missouri (US)
Writing for the CourtGary D. Witt, Judge
Citation604 S.W.3d 817
Parties Jason Michael Kyle SELIG, Respondent, v. Robert RUSSELL, Prosecutor, Johnson County Circuit Court, Scott Munsterman, Sheriff, Johnson County Sheriff's Department, Appellants.
Docket NumberWD 82804
Decision Date21 April 2020

604 S.W.3d 817

Jason Michael Kyle SELIG, Respondent,
v.
Robert RUSSELL, Prosecutor, Johnson County Circuit Court, Scott Munsterman, Sheriff, Johnson County Sheriff's Department, Appellants.

WD 82804

Missouri Court of Appeals, Western District.

OPINION FILED: April 21, 2020
Application to Transfer to the Supreme Court Denied May 28, 2020
Application for Transfer to Supreme Court Denied September 1, 2020


Lance A. Riddle, Warrensburg, MO, for respondent.

Robert W. Russell, Sedalia, MO, for appellants.

Before Division Two: Cynthia L. Martin, Presiding Judge, Thomas H. Newton, Judge and Gary D. Witt, Judge

Gary D. Witt, Judge

Jason Selig ("Selig") filed a Petition for Exemption from Sex Offender Registry in the Circuit Court of Johnson County, naming Johnson County Prosecutor, Robert Russell, Johnson County Sherriff, Scott Munsterman, and Missouri State Highway Patrol, Director of the Patrol Records Division, Captain Kyle Marquart,1 as respondents (collectively the "State") seeking a declaratory judgment that he was exempt from registration as a sex offender under both the state and federal

604 S.W.3d 819

sex offender registries. The circuit court granted Selig's petition and the State appeals. The State contends that the circuit court erred in granting Selig's petition because (1) the court failed to consider Selig's independent requirement to register because of his federal registration obligations; (2) registering is a prerequisite to obtaining an exemption; and (3) there was no hearing to determine whether Selig was required to federally register.2 Selig counters these arguments but also contends that the Rule of Lenity applies to negate any registration requirements. We reverse, in part, and remand for further proceedings.

Factual and Procedural Background

Selig entered a plea of guilty to the offense of furnishing or attempting to furnish pornographic material to a minor in violation of section 573.040 on February 27, 2019.3 The facts giving rise to the charges were that he sent photographs of his erect penis to multiple fellow high school students via Snapchat. Following his conviction, on March 1, 2019, Selig filed a Petition for Exemption from Sex Offender Registry ("Petition") seeking a declaratory judgment that he was exempt from registration as a sex offender under both the state and federal sex offender registries. Section 589.400 imposes Missouri's registration requirements on certain offenders convicted of sexual offenses. Selig asserts that pursuant to section 589.400.9(2)(c) he was exempt from registering under the Missouri Sex Offender Registry.

The State responded that although Selig may have been exempt pursuant to section 589.400.9(2)(c), he was still required to register pursuant to section 589.400.1(7)4 which incorporates federal registration requirements into Missouri's registration requirements. Further, the State argued that despite being titled an "exemption" Missouri law requires even those deemed to be exempt to first register and then seek removal from the registration requirements. Because Selig has not registered,

604 S.W.3d 820

the State contends that he may not be granted an exemption. The State filed a Motion to Dismiss for Failure to State a Claim asserting the same grounds ("Motion"). The circuit court held a hearing on the Petition and Motion on May 6, 2019 ("Hearing"). At the Hearing, Selig initially requested the court make two findings: (1) that Selig's conviction did not fall within the federal Sex Offender Registration and Notification Act ("SORNA")5 and (2) that Selig was exempt under Missouri's Sex Offender Registration Act ("MO-SORA").6 During the course of the Hearing, however, Selig withdrew his request for a finding regarding his federal SORNA obligations, instead asking solely for a determination under the state MO-SORA, arguing that section 589.400.9(2)(c) exempted him from all registration requirements. The State argued that Selig's obligations under MO-SORA could not be determined without first determining his SORNA obligations. At the Hearing, the State contended that the circuit court needed to hold an additional hearing at which the parties could submit evidence regarding whether Selig was required to register under the provisions of SORNA. The State reiterated this argument following Selig's withdrawal of his request for a SORNA determination arguing that Selig was still subject to registration due to his federal obligations.7

The court entered judgment on May 9, 2019 ("Judgment"). The Judgment stated that: "The State's Motion to Dismiss is denied. Pursuant to § 589.400.9(2)(c) RSMo., petitioner is exempt from the sex offender registration requirements generally set forth in § 589.400 RSMo." The Judgment made no findings as to Selig's federal SORNA obligations.

This appeal followed.

Standard of Review

This Court will uphold the judgment of the trial court unless "it is not supported by substantial evidence, is against the weight of the evidence, or erroneously declares or applies the law." Doe v. Isom , 429 S.W.3d 436, 439 (Mo. App. E.D. 2014) (citing Murphy v. Carron , 536 S.W.2d 30, 32 (Mo. banc 1976) ).

Discussion

As noted above, the State brings one point on appeal which is actually three separate claims of error. The State alleges that the circuit court erred in granting Selig's Petition because the court's statement in the Judgment that Selig was exempt from registration as "generally set forth in [ section] 589.400" was an error of law. The State contends that Selig is not exempt because of his independent federal registration obligation or, at a minimum, the circuit court was required to conduct a hearing on whether Selig has registration requirements pursuant to SORNA before declaring him generally exempt under MO-SORA. Further, the State alleges that the circuit court erred in denying its Motion because Selig was required to register prior to filing his Petition for exemption. Since he has yet to register, the State contends the Petition was not ripe for review.

I. Registration obligation under SORNA

There are two registration laws at issue in this case. Missouri governs and maintains its own sex offender registry pursuant to the provisions of MO-SORA,

604 S.W.3d 821

setting forth the offenses which give rise to a requirement to register as a sex offender. The federal government does not maintain its own registry, separate from those registries maintained by states. SORNA establishes requirements for the registration of sex offenders that each state must comply with in order to receive certain federal funds.

Since 1994, federal law has required States, as a condition for the receipt of certain law enforcement funds, to maintain federally compliant systems for sex-offender registration and community notification. In an effort to make these state schemes more comprehensive, uniform, and effective, Congress in 2006 enacted the Sex Offender Registration and Notification Act (SORNA or Act) as part of the Adam Walsh Child Protection and Safety Act, Pub.L. 109–248, Tit. I, 120 Stat. 590.

Carr v. United States , 560 U.S. 438, 441, 130 S.Ct. 2229, 176 L.Ed.2d 1152 (2010). Missouri has recognized that Congress intended SORNA to be uniformly implemented by the states.

Congress' intent to establish a uniform national sex-offender registration system is made explicit in SORNA's first section, which contains the following declaration of purpose: "[i]n order to protect the public from sex offenders and offenders against children, and in response to the vicious attacks by violent predators against the victims listed below, Congress in this chapter establishes a comprehensive national system for the registration of those offenders." 42 U.S.C. § 16901 (emphasis added).

Doe v. Keathley , 344 S.W.3d 759, 764 (Mo. App. W.D. 2011) (holding that, for the purpose of registration requirements, the definition of "convicted" must be governed by federal law).

The interplay between the requirements of SORNA but also the requirements of MO-SORA can be seen within section 589.400. Section 589.400 includes detailed lists of who is required to register as a sex offender in Missouri and includes several groups of persons and particular crimes which are exempt from registration requirements. However, section 589.400.1(7) includes a general provision that requires registration for any person who "has been or is required to register under tribal, federal, or military law[.]" "[T]he 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 [MO-SORA]." Doe v. Neer , 409 S.W.3d 451, 455 (Mo. App. E.D. 2013).8 Thus, regardless of the other terms of MO-SORA, section 589.400.1(7) acts as an "independent" requirement for registration.

Such an independent requirement is necessary because SORNA maintains compliance of states with SORNA's registration requirements by tying...

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1 practice notes
  • J.B. v. Vescovo, WD 84010
    • United States
    • Court of Appeal of Missouri (US)
    • August 31, 2021
    ...seeking to exact statutory penalties and in favor of persons on whom such penalties are sought to be imposed.’ " Selig v. Russell , 604 S.W.3d 817, 825 (Mo. App. W.D. 2020) (quoting J.S. v. Beaird , 28 S.W.3d 875, 877 (Mo. banc 2000) ). The Rule of Lenity " ‘applies to interpretat......
1 cases
  • J.B. v. Vescovo, WD 84010
    • United States
    • Court of Appeal of Missouri (US)
    • August 31, 2021
    ...seeking to exact statutory penalties and in favor of persons on whom such penalties are sought to be imposed.’ " Selig v. Russell , 604 S.W.3d 817, 825 (Mo. App. W.D. 2020) (quoting J.S. v. Beaird , 28 S.W.3d 875, 877 (Mo. banc 2000) ). The Rule of Lenity " ‘applies to interpretat......

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