State v. CM

Citation746 So.2d 410
PartiesSTATE v. C.M., C.D.M., and S.D.
Decision Date05 May 1999
CourtAlabama Court of Criminal Appeals

Bill Pryor, atty. gen., and Cedric Colvin, asst. atty. gen., for appellant.

Joe W. Morgan, Jr., and Sandi Eubank Gregory, Birmingham; and Lee Allen Dubois and Michelle M. Wales, Birmingham, for appellee.

Alabama Supreme Court 1981735.

PER CURIAM.

The State appeals the trial court's finding that Act No. 98-489, 1998 Ala. Act, an amendment to the Community Notification Act ("the Act"),2 codified in § 15-20-20 et al., Ala.Code 1975, is unconstitutional as applied to C.M., C.D.M., and S.D. This amendment, which became effective on August 1, 1998, made the Act applicable to juveniles.

In 1996, C.M., a mentally retarded 13-year-old, was adjudicated delinquent on the underlying offense of attempted rape. He was placed in the custody of the Alabama Department of Youth Services and was ordered to participate in a sexual offender treatment program. After C.M. had successfully completed his sentence, he was released to the custody of his mother and was ordered to submit a DNA sample, pursuant to the Act, § 15-20-21(k), Ala.Code 1975. C.M.'s mother lives near a daycare center and has minor children, other than C.M., living with her.3

In 1996, C.D.M., then 12 years old, was adjudicated delinquent on the underlying offense of sodomy. He was placed in the custody of the Alabama Department of Youth Services, and he participated in a residential treatment program. After the Legislature amended the Act to designate juvenile adjudications as "convictions" subject to the Act's provision, C.D.M. was ordered to submit to DNA testing before being released to his mother, S.D. S.D. lives near a child care center and has a minor child, other than C.D.M., living with her.

In August 1998, when C.M. and C.D.M. were due to be released to the custody of their mothers, C.M., C.D.M., and S.D. attempted to stay enforcement of the Act by filing petitions for the writ of mandamus in this Court. This Court temporarily stayed application of the Act and directed the trial judge, the Honorable Sandra Storm, to hold a hearing on the allegations that application of the Act as to C.M. and C.D.M. was unconstitutional. After an extensive hearing, Judge Storm ruled that the Act violated the ex post facto clause of the United States Constitution because the 1998 amendment created a penalty that was not prescribed when C.M. and C.D.M. were adjudicated delinquent in 1996. Judge Storm also held that the Act's residency and reporting provisions were unconstitutionally vague and that the Act interfered with the right to intimate association of parents and children. Judge Storm found that the Act did not deny C.M. and C.D.M. equal protection of the law nor did it violate the separation of powers doctrine. Because Judge Storm declared the Act unconstitutional as to C.M. and C.D.M., we dismissed the mandamus petitions. Ex parte C.M., 727 So.2d 898 (Ala.Cr.App.1999), and Ex parte C.D.M. and S.D., 727 So.2d 897 (Ala.Cr. App.1999).

The State, pursuant to § 12-22-91, appealed Judge Storm's ruling that the Act was unconstitutional as applied in these case. C.M. and C.D.M. filed cross appeals, challenging those portions of Judge Storm's ruling that held that the Act did not violate the Equal Protection Clause and the separation of powers doctrine.

A brief history of the development of the Act is helpful in understanding the background of this complicated case. As early as 1967, Alabama enacted legislation which provided that convicted sex offenders were obliged to register with law enforcement personnel once they were convicted. Act No. 506, 1967 Ala. Act. Pursuant to this act the Department of Public Safety was to maintain "a system for registering or recording and indexing the information relating to sex offenders." § 15-20-5, Ala.Code 1975. In 1996, Alabama expanded on this law and adopted a community notification act, known as "Megan's Law."4 Its purpose was to notify the "community" when a convicted sex offender intended to make his residence in a neighborhood. See § 15-20-20.1, Ala.Code 1975. The Alabama Legislature in 1998 extensively amended the Act and broadened its application to encompass juvenile adjudications. See Act No. 98-489. The term "conviction," for purposes of the Act, was redefined to read as follows: "A determination of guilt as a result of a plea, trial, or adjudication as either a youthful offender or a delinquent, regardless of whether adjudication is withheld." § 15-20-21(a)(3).

Of those states that have community notification laws, Alabama's Act has the broadest application. See Annot., Convicted Sex Offenders: Where Do You Live? Are We Entitled to Know? A Year's Retrospective of Ex Post Facto Challenges to Sex Offender Community Notification Laws, 22 Nova L.Rev. 585 (1998); Annot., Welcome to Anytown, U.S.A.—Home of Beautiful Scenery (and a Convicted Sex Offender): Sex Offender Registration and Notification Laws in E.B. v. Verniero, 43 Vill. L.Rev. 581 (1998). Some states specifically exclude juvenile sex offenders from the application of the law, See Ky. Rev.Stat. Ann. §§ 17.500 (Michie 1996) and La.Rev.Stat. Ann. §§ 540 (West 1998), while other states provide that the trial court determine the dangerousness of the sex offender before assessing the level of public dissemination about the sex offender's record. In these latter states, the first tier is the least serious sex offender; there is very limited public dissemination about this type of sex offender. See E.B. v. Verniero, 119 F.3d 1077 (3rd Cir.1997), cert. denied, 522 U.S. 1110, 118 S.Ct. 1039, 140 L.Ed.2d 105 (1998) (New Jersey); Doe v. Gregoire, 960 F.Supp. 1478 (W.D.Wash. 1997) (Washington); Roe v. Office of Adult Probation, 125 F.3d 47 (2d Cir.1997) (Connecticut); Doe v. Pataki, 940 F.Supp. 603 (S.D.N.Y.1996), aff'd in part, rev'd in part, 120 F.3d 1263 (2nd Cir.1997), cert. denied, 522 U.S. 1122, 118 S.Ct. 1066, 140 L.Ed.2d 126 (1998) (New York); Doe v. Weld, 954 F.Supp. 425 (D.Mass.1996) (Massachusetts).

Alabama's Act requires that all sex offenders, no matter the circumstances surrounding the offense, register as convicted sex offenders and be subject to the community notification provisions of the Act. The Act provides that persons convicted of an enumerated criminal sex offense5 must, 30 days before their release from custody, declare their intent to reside at a designated location. § 15-20-21(b). The responsible agency then notifies law enforcement agencies in the designated area. Law enforcement agencies are then furnished with information on the convicted sex offender, i.e., the offender's sex offense history, fingerprints, and a current photograph. Within five days after the law enforcement agencies are notified, the community is notified pursuant to the procedures set forth in § 15-20-22. The amount of public dissemination depends on the population of the city in which the sex offender intends to reside. Specific provisions are made for the largest cities in Alabama; i.e., Birmingham, Mobile, Huntsville, and Montgomery. § 15-20-22(a)(1). In these cities, all persons who have residences within 1,000 feet of the declared residence of the sex offender, and all public and private schools, licensed daycare centers, and any other child care facilities within 3 miles of the residence are notified. A community notification flyer is then mailed to the residences. The flyer contains the sex offender's name, address, physical description, a current photograph, and a statement of the circumstances surrounding the conviction. § 15-20-21(a)(2). Notice may also be by means of newspapers or the Internet. § 15-20-22(a)(1).

Standard of Review

Because this case involves a question of law—the constitutionality of Act No. 98-489 as applied to juveniles— the trial court's ruling is entitled to no presumption of correctness and this Court will apply a de novo standard of review. Taylor v. Cox, 710 So.2d 406 (Ala.1998), and Ex parte Graham, 702 So.2d 1215 (Ala.1997), on remand, 702 So.2d 1222 (Ala. Civ.App.1997). See also In the Matter of the Welfare of C.D.N., 559 N.W.2d 431 (Minn.App.1997); In the Interest of Jason J.C., 216 Wis.2d 12, 573 N.W.2d 564 (1997). When applying the de novo standard of review, this Court is not obligated to rely on the same analysis as that employed by the trial court. Ex parte Graham, 702 So.2d at 1221. However, this Court's review is limited to the constitutional claims raised before the trial court. Armstrong v. Roger's Outdoor Sports, Inc., 581 So.2d 414 (Ala.1991).

Equal-Protection Claim

C.M. and C.D.M. argue that the trial court erred in not holding that the Act violates their right to equal protection of the law because the Act permits a convicted adult sex offender to return to a home where a minor child resides, but it does not afford a juvenile sex offender this same right. Section 15-20-22(g) states:

"No criminal sex offender shall be allowed to establish a residence or any other living accommodation where a minor resides. Notwithstanding the foregoing, a criminal sex offender may reside with a minor if the criminal sex offender is the parent of the minor, unless one of the following conditions applies:
"(1) The criminal sex offender's parental rights have been or are in the process of being terminated as provided by law.
"(2) Any minor or adult child of the criminal sex offender was a victim of a criminal sex offense committed by the criminal sex offender."

(Emphasis added.)

Claims that a law violates an equal protection right have traditionally been reviewed applying one of three levels of review. The level of review depends on the parties involved and the right affected by the law. If the law affects a fundamental right or a suspect class a reviewing court applies the "strict scrutiny" standard of review. An intermediate level of review is applied...

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